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Digitized by the Internet Archive
in 2010 with funding from
CARLI: Consortium of Academic and Research Libraries in Illinois
http://www.archive.org/details/illinoisappellat244illi
160 = 30419
M, SS. BRUMETT, Doing Business as )
» S, BRENHTT COMPANY, Not
Incorporated,
Defendant in Mrror,
BRAGK TO GIARCUIY covat
ve,
GF COOK COUKTY.
GHIGAGO MOTOR CLUB, « Corporation,
Plaintarr in Error,
WA. PRESIDING JUSTICE MeSURBLY
DELIVERED THE OPINIO“ OF THE COURT,
Plaintirr brought suit to reaover the value of cere
tain services said to be rendered by him to defendant wider an
alleged verbal agreenent. “pom trial the jury gave him a verdict
ef $734.23 and futgwent war entered for this asount, By thie
writ of error 4efendant secke a reversal, Plaintiff’ doee not
appear in thie court te defend the jutgeet.
Plaintiff's slaim was said to be for services in 5
investigating the theft of an autemebile ond making ® repert om
sane, together with moneys advanced and expenves ineurved in — )
making the investigation, sounting te $1064.25. Defendant '»/
affidavit of merits denied that it at any time engaged oF gue .
therisea plaintiff te perform any work im and about the theft of ri
an avtomebile or at any time tequeasted plaintiff te perform any
services whatever for defendant; denied that plaintiff had per
formed any euch vervices or expended or advanced © sny moveye
in connection with the alleged imvestigation; denied that he at om
any time performed any services for or on behail of defendant,
denied that defendant owed him any money whatsoever.
elearly against the preponderance of the evidence.
The aase for plaintiff was mupported w ig teetineny
Reh AIORTE Or wove |-
‘yeramray 009 Mo 1a
aS
Jee 2 A. zs &
ie gente a mene ah al |
onan Ont pavonon af $866 Mt ERO
wr 2 ate oem ht babes apa toons tate apne
ten ona ‘mteaie st 3 aleweinns a nroet. a kaharen ane ae i
eee ae eppnanpiatasmtbelnccb tesco!
co wot wend ddim eer ele atientadt
of himself and one ether witness, Pluintisf was running « private
detective agency in Chicage. Those witnesces way that they went to
the office of the defendant and there met a kr, Jacks and w Ur,
Brown, who, the witnesses any, wore the claim manager and preaie
dent, Peapectively, of the deFenjant; that they teld My. Brown and
tir, Jacke that @ certain autosiebile which had been ineured by
defendant had been Aldden by Or, Hamsay, the owner, for the pur-
pose of defrauding the defendant, and plaintdff would be willing
te s@li thia information ta the defendant; that hie charges would
be a flat rate of 936 o day per man, including expences, or We
will guarantees te return the car te you for a stipulated amount,
or we 4e net went soything;* that Br. Brown told them te go te
work, whieh they 414, They 214 met locate the stolan car ond never
feun4 it. Plaintiff knew that the defendant serverntion never ise
sued or carried any inewrence ané that there wan snolher oo rperae
tien lecated in the game building which 41@ iseue automebile ing
@uYance, and that thie latter company wae entirely separate and
@istinet from the defendant ecorpany,
ae, Brom, tentifying for the defandent, said he was
the general manager of defendant omrparantion snd that it 444 met
@igage is inauranee ef any Kind, that there wan ancther eorporae
tion located in the sane bullding whieh 114 ineue ontomoebila ine
Surance; that the kr. Jacks referred te wan nat an offieer of dete
Tendent compacy, tut wae the claim maneger of this insurance come
pay; that he, Brow, never had any conversation with the plains
tisr or bin witness with reference te working for the defendant
company and never kad any eonversation with anyone with reference
te deing work im ond shout the Lese of tr, Rameny'n automobile,
mor 414 he hire any 4etective agency with reference te finding
said automobile, ner have any converantion with ay detective
ageney with reference to that matter,
stestee * ashorwrs, ane vera veesnoty wnt e080 ee
of sim yous sino we vase ie enone
Or, Rameay testified that he waa the owner of the
gar in question; frat te wen «© physielan and surgeon; that the ear
was inevred fin the Inter Ineuranas “Sxshenge, and was leet in May,
19° and reeovere4 in August, 1°71, a month scfer te the tien
Plaintiff claimed he made his wonteact with the defendant; that
the insurances cempary pid him for the lose of the car, but when
the automobile waa reeovere’ ant turns? ever to Aim he refunded
the money to the ineuranee Goxmany, Or, Ramsay aleo testified
te an ettempt ef the plaintiff to extort $2,690 from him because
ef aeme alieged inerimineating tnforuntion relative to the lows of
the car,
A poliee officer testified that he lecated br,
Rempanys car in Figin, Illinois, ty meane of «9 telovhone gall ree
eetved from the ebie? of police of Uigin; that he went there and
recovered the ear tn Anouwt. Tsare wes further evidence tending te
prove that it wan recovered August %, 19%, end brought back from
Bigin the next day. Plaintiff «lates that 012 the work wildh he
4i4 wae fering the sont: of Septerber, 1971,
The mere reeltal of tre evidence feumnetrates: Tuat
the verdict against the defendant wee not Justified. The defandte
any vas net tn the Pusiness ¢f ineuring automobiles and gowld have
had me wetive in making « contract with plstetiff to recover the
stele: cer, The feet thet platistiff alleges that his servierts
waxe rendered seme tine gutaequent io the reeevery of the nutonoe
bile ie, ta sey the lenst, very singules and pinintiff'e evil denes
fm thie reepsct 1a net eanvinuing., Xr. Brewm'se sategorios] fentel
ef the alleged verbal contrect of caployvont fe in harmony with
ell the eireumstances,
There is slse merit im the coptention that there is
me evidence to sustain the verdict of $734,235, The value of the
alleged services war net in igeos. 30fendant dented that it
te
Sad Te Tees HA met em dade ha te henge qomant rt
‘ao ot ant :sonqrene ise moieiecde enw at so ‘
ial at Soot axe hae _ epnetne, comment want oe
Ree one
‘ae + ai cd eben ston Fi AoE owed Rs
“bn : a
gga ts eee aus on 320
i... axel ens ‘pe setdaten seddsoratad a es
are SS BiG seen
fn a
§ De
mie ou 3 ed wages
enployed vlaintif?. Under wueh olraunstaiges plaintiff wae ene -
titled either te the amount claimed, 1064.94, or nothing, and ao
finging oF any intermediate sum is vittually a finding that there
Was No such agreement as cantended fer by piaintit?. pgweg
: i i. tervin, 107 Thi, App. 620; &
ka Boake, 85 Tl, agp. 637,
The general manager of tiie defendant corporation
attempted te testify that the inter inguranee Eughange in the same
building was organized for previt aud dealt ia autemobli¢c ineuranee
Objection to tiie line of teatineny waa sustained, Ordinarily,
testinony ae te » toliateral matter is isreievant, bul wider the
present cirewietaiees thle testisuny wae perwissible ap tending
to shoe that tae contrast of employnont, if any, of plaintisr was
not with the defendant eospany but «len wether corporation whi ch
dealt im autempbile insurance, Mvidenee as to facts should not
be excluded whieh raises a rensonstile inference or pr counption
aa te the matter in isaue, Them a fact iu, in 4 Legal. sone,
Televant to the losue, it ie mot to be excluded although apparently
eOliatersl, tei» DPiair, 69 111, 642; RAE AAO. SORE
So. te Getten, re? 14, 6365 5 OVE Ei walt, eb ie, 142
ema other anaes,
it waa ales arrer, sensidering tha onaracter of the
dafenes, to poradt the plaintiff te teatify that Jocks war the
elain manager ond Brewn the president af the defeniant corparte
tion, sutherized te make « contract ef ampleyment with ploimtirr,
the court alus improporly adedittie’ testiwony tending
te intixate that the defendant's witners, Dr, Nameny, hod been
invelved in some criminal prosecution. Bartholemey vy. Zeoples, 104 —
-T11l, 601,
,
- wan basins
puke Oy aie “iawn 7 y nauk aba * wit
ete bias Sad si ceca et sor
The court imorceeriy gave instruction fo. % on behaif
er the plaintiff, =hieh asvume¢t as a feat that "the defendant had
ieened one of ite policies againet euch theft.” Tahir anmantion
is equarely contradicted by the evidence of the cave, Heuty 1.
Peophe, 177 TLl. 806; 0. & Ae Be Bs Go, ¥. Rewbern, 283 TRI. 290,
There wore other errare wsen the trial with @434
hardly oceur agadete
Yor the reasons abeve indicated tha Judgment ie
reversed und the eause remanded,
HRVERSED AND WEMANNED,
Batchett and Joumetun, J7., ooneur,
4. + 51153
SIDASY SCHRAYER & GORPANY, }
a Corporation,
Appellea,
APPEAL YRGOM MIMICIPAL COURT
va.
} OF CHICAGG,
HARRY KORSHAK, }
Appellant, } Quaar
(Pes ee, of Hi eet
ott — «a go [ As ,.¥ Fd
GR, PRESIDING MISTIGCR Mesine.y
DELIVERED THE OPINION OF THE COURT,
On Decexber 51, 1925, Judmuent was entered against
defendant by confension Sor 17650.46 under a power of attorney
in a judgment note, Jonuery 19, 1996, which wae within the
term at whioh judgment wae entered, the defendant Tiled a metion
te vacute and set aside this Judgment, supporting the same by an
affidavit. ‘This sotion wae denied, and @efendant aypeale from the
order denying bia mation.
The plaintiff hee seved thie court te strike from the
statutory record the motion of the defendant to vaeate the Judge
ment with the supporting affidavit on the greund that they are not
preserved by any bill of exceptions, certificate ef evidence, or
stenographie repert of the trial, wherein only they ean be properly
preserves for review,
It hae been Keold fm many (deoigiona tust such motions
and affidavits heave no plese in the statutery record. Peter Mand
Brewing Co, v. Baneeda, 710 11. App. 163; Fleckles for use of
sreembaun Gene iim Co., 169 t11, App. 321; Beyhea ve
Chytraus, 175 111. 370; Hern v. Heu & Gintg, 63 1121, 539; Patton
Xs Young, 235 11. App. 515; gai cameagummancagngsamne 185
Til. App. 581; En! © Ck a : ¥.
0 «BAM LL. App. 460; Pecple v. Gowan, 285 111, 308; People v. Kitseher,
aN
7
4
nApOO ‘aT un AR .
, ba mio 4 0
i) ; hk BS ‘
ie
POS
ise
YARN MONEE OMNI: SIRE Hak Dame
sTRGOD DIY Mo aonares SY CRAVE te eae
_tanhens homme Rise rege, ae, vanes ® weaaest i ‘niois tone
wees! te Ye pomac a Soho Bb 088 aot “wotens'ta00 wt a é
esta akishe aww shio Mathe WOE a nt wes 6
ad moet aden orn santinsiat Aine as er saw aerdow ett
sno} vom wd au
oat ao rt dbase of iaBoo y Las bev od tad vileatete oat
“abut eats blouse ot danban'teh oct Yo sobtem eat pee Y
tes ote dca tail Sawomy ould te eval Ye sane - yon
eo bt om owe taut aaote toot west Ped ‘pie eee acd ll
| howl wp te! sitoees rodents ods mh one le on ernst oe.
| Ue aA ta sade peas ad aot a ’ i
aL RasKAS 186 vk SO 1s =
aaddat 10 Ath 3 a 10,8 an aw,
ar ,. iy RAPED ae
302 Ill. 40; Young v. Jamenan, 307 522, Tl; Peeple v, Levin, 518
M11, 227; Lilly v, Liddy, 240 TLL. Av, 449; Reoehe ex re.
Raftzmer v. Arnett, 317 111. 425; People +. Nordmeyar, 305 111.289,
Befendant replies that, as there are ne formal proceed.
inge in the Sunietpal court, defendant's affidavit becomes eubstitu.
ted for @ pleading and in thus preperly preserved for review by ine
corporating the same in the statutery record, Tale would be true if
the trial court had civen defendant leave to defend and hed antered
an order pormitting the affidavit to stand ae his aryvidavit of
merits; but the motion was denied.
; It ia next said that under the amendment of 1912 of
Section 31 of the General Practice Act, mattera not properly in the
record may be preserved eliher by bill of exeeptions, certificate of
evidenos, or stenegraphie report or the trial, (Spieghs vy, Ine),
276 Til. 184) and that the “repart of trial” inoluder 91] matters
whieh were before the sourt. “se do not eo construe Section 81 as
asended, This merely gives a cheice of metheda of preserving matters
for review an4 is net intended to shange the general rule that all
matters not properly within the common lav or statutery record must
be etherwisn preserved for review. People vw, Ritechar, 301 T11l. 40;
Milier vy. Anderson, 269 111. 603; Viliage of Bradley v. N.Y .CeRsieGg.,
296 111. 383. In the laet cited case the court maid: "It ie inma-
terial whether the method adopted ta incorporate the proceedings in
the record is by bill of execentions, certificate of evidence, or
stenographic record of the trial." This has been held so many times
as to require no argument.
Thie ie not an independent proceeding te vacate a judge
ment under Section 1 of the Municipal Court Act as considered in
imbrie v. Bear, 230 Til. App. 158. ‘Yhis was 2 motion made within
the term,
The motion of anpellee to strike will be allowed.
as em wogh fEE)OMR.
ate ht woe. r
oft an wolves ack boveeno-n epeneonn sagas ak ate :
at mee es bduere wit baeot ytususore one ah acne ot
Beta wae oneemess ous ann eh
te ELBE “te San sch ameter sus Tobiut dase lew haem ial a
ee ak Yroqor tou anced ge fas 0 dtaecrs icant ae . :
he © wtder it istos sansniewore La asia ee tate R cabbnpsicinas
at He bea our i rronen 8 |
_ is nel roee aurtene: “9 toa ob & tue emt
sip
enue drone eromusere + 19. wk nocecas ty abst by
10% ars: roe
Hae Bs?
y Tie
tat ‘ox 7” “than rxw09 ne ues beats apes s sid at
a {ean
Pa oan hs
at agrtinewore aie stateqr coat ad hotaehe hexvo wad
» ae Meee
*6 «ooehhve ‘ke eteeitisues eemeraaorad to ani f ak
“eval a oe io and ae mast * tales ose we 0908
es A ee
fe
A wey
eam
paul a
eee ga Nay ie
mies
This Leaves nothing properly presented fq) ue for review, and in
thie condition ef the record the Judgment must be affirmed,
Matehett and Johneton, J7., conenr,
49 = 32167
Tis PSOPLE OF TRA stare }
OF TLLiNOls,
Sefendent in Srror, |
SRRGR YO GRisival COURT
va,
; GOGk GOUNTT,
Ak NOTLOT, F
Plaintiff in Error, 9
BR, PRASIOLEG JUGTICR MeiURELY
DELIVERED THE OFIEION OF THY COURT,
Defendant was charged vith sacadlting Koay 2, Jicka
with a deadly weason sad won ivial by Jury wae found guilty and
gentencest te ninety faye im the county Jail, Te tenkes 2 reverwal.
& petition fer changes of wenne wae dented, avd this
ection of the trial fudge la ageigned for orror, Bo valid reagen is
presented way the patition shewld not have been granted. The only
reply made by the State in that nelther the petition ner the evie
dence te support it is preserved by bilL1 of exeeptiona, but this
ig om error; they are proeerly preserved by bill of exceptions,
the agvault eceurred om the evening of Oetebor 17,
1928, It is not elaiwed that defendant hiaself committed the
aesault, but it is eaid that he was om acceswery defore the fact
and therefore guilty as a principal, Defendant is « poltoa offi-
eer of the Village of Lyons, im the evening of October 17, 1925,
at about slewen o'clock, be and wnethes officer, Yuffek, then om
suty, received « te) ephene complaint of a dLeturbunee et a eoft
arink parler eslied tetlowkal's place. The two offiears went to
investigate, Defendent Vetlow wae in wilfers md wore o police
officer's ater.
the evidenee ae to the nature of the disturbance is
somehhat contusing, but apparently ‘the complaining witnees MNoka
with two ether men were in Jetlouwkal's plage collesting evicence
My
sonia
os, on * eee: Y's i i ai) i . |
sais oo) a na “’ ‘elias |
rages on to AEE Ue COMET
“190 #1 - be ¢
amt ek gRbUtoames ete bey carts sav Preihaedet a
Bis “getty Brandt saw exert ee Keted wees showy eoyaee «ibs 6 ) @ ati
rtewraree « eifeon of Etat irons ort! ad wesh ytente ot Denes
“ahae bam boned new euney tn ayaecin wt umtitiog A a
7 sonst bhiee ot storm t0 bonglene ok ‘egiet Lutes nit te
ino est stadnaree anee svat sea bewedy noes Aaa es ew, bo ti
obve ad) sem eaithvey sce cadtiou dude oh agmee one ad om :
kate tod yewotiqnaae Yo Litt eS deempmory a2 aad
“saiiad toa Ye tihe af Rewrite virageeg oe oa
mag" mage Smiles
Ay: sip ¥e wets C7 aa be tae ee fi)
Sips FI W
oe it ot a
soneerning liquor law visiationsa, The police officers were told
that some persons were exhibiting guns. They saw seme people
standing in front of Setlowkel'a ond commenced te avared them for
gums. At that time Jicka and his two sowpaniona came out of
Setloukal's ond the officers searched thew for weapens,
The complaining witnese, Jicka, says that the dee
fendant, iotloy, atket him Bis name, which Jick gave him, That
he then noticed “from the corner of my ave" that the defendant
“pointed with hie thumb ty « fellow directly behind me,” and that
the latter grabbed Jieka by the shoulder and that he wae etruek
in the facie with @ gm or Wlack{aek,
The witness Roore, who wae one of the men with Jick,
said that ae Jicks walked ever ond eponed the door ef hie automo.
bile sone man + not the defendant - wtruck him; thet he A414 not
hear the defendant any anything. That he 41d not eae whet the do-
fendant war doing.
The other man with Jieka testified that he did net
know whe struck Ticks ver how he was etruek, and that he was not
positive where Hotiow was when the agsvault cocurred; the last
time he saw the defendant he walked serose the atreet about five
minutes before Ticks was wtruck.
| Three witnesses an? the defendant testified that the
defendant left the eume before Sicka wos atruck, The defendant
ona Duffek searched everybody around there, and that the officers
left before Ticks was struck, It var Saturday evening and, as
usual at thie time, there were « great many people around there
talking lowd. It wae a dark night.
Motlow testified that he was a police officer; that
he was on duty this evening, He and Sargeant Duffek responded to
the eall and were told that there were some follows over there with
gums; that he searched a bunch of fellows but found nothing; that
ad oe onde &
AP Rs
tae i,
| tom sb wa tase neh vert ‘alos a0
be & oe
‘, an
Lo
aid taahuntah wt hae
I ee
heats: sure ies rete amen, dae
ys hd fs “f
% > =
Psat Jee
he and Duffek them left and drove te the station where they ree
ported what they had dene; that after he had been to the station
about ten or fifteen minutes a gull came in saying that somebody
had been elugged; that they then wane detloukai's place, but
found nothing. Defendant says that he did not see Jicka slugged
that evening; that he 4i¢ net know him before that evening; he
dentes that, softer searching the men, he pointed with nie thumb
tewardea Jicka or by any geeture direetod attention to him, He
414 not see anyone struck there that evening,
The evidence is ten tenuous to suepert the verdict.
It iw hardly eredible thet Tiekn sould gee defendant make a noe
tion vith ie thud on such a durk might. He du the only ene whe
teatified to any geeture by the defendant indicating Jicka ae one
to be aseaulited. Jicke's own companione say that they saw nothe
ing of the sort, and except for Jicks neerly 211 the witnesses
testified that the aguault teok plage after the defendant had
left the seene, ‘the verdict not only did aot satebligh defend-
ant‘'s guilt beyond a reagonubhle doubt, but 16 wan manifestly
againet the welghkt of the evidence.
Conniaint ie made of the action of the court with
reference to giving and refusing instructions. Some of the re-
fused instructions might well have been given, but we do mot thimik
it neeessary te particularine av to these. pen a sesand trial, if
there should be one, such errore will not be likely te oeour.
the oreo? failed to sustain the charge, and the
Jadement ie therefore reversed an’ the cause remanded,
REVERSED ABD REMARDED,
Batehett and Johnaton, JJ., concur.
“0% add eset aaktata ad) of srath bam dal a, ‘MeYtg bae od
Mae (bet aes ee a HOS
‘melted off of ahead bon 8 age anes nen beut asta sate | “ ;
eheweniGe iit) gibyss at eam Lise « aodunta “aoagitt ap any al aed teed
sot itt w* tkaieshel” GNaew potoik ras pagan
basadta eveth oro dea Mb sa sake awe Snphne OR -gabsts ~~ wee we. Sans
yak awwe tasty eroted wit weal fon ake mi fast raaioye fast
dius aks tw kebatoe 9a oti 6a sadsesese wots Bc ss bread
ot add at walrieste petuont® oxedeon, wo ‘We te 9 mle Gare me.
oe uathoeve dorks went dose sag 98 fem Bhp
stettcey ost Seeure ot nmonens oot at “tononive icing ey
aon a gel ‘yaahie v0& eee binao stent sant aati
wes wee
bis ak dt taiek Sos Seaton, oN Sid -
, S csquead oa eheurnascmk Sheena... |
sbinteh eaisnvnn sou 92s vlan tga Painane apt saves 9a as
"yb tk a fast iad shlanennos as eet
Asie fare ‘see otava eet oe ma at tanta an ae a
sot oat Te ana smooleerntand Bitiawter nn gate |
$08? on ob ow ted 0d a8 MRL Law fon oe Ps
‘Sk fobrd hawpna © seat somes of a Ondtasnoss tog at hil it
a ‘enti ChOsht of Hom Lem cee se oe hiesde wnat
gh iy Shee f Be a eee
ey Pp ivik oneal
iach eoncneie ab Hone hs pene a
Sie Saas Sh ig peas a Habib ee ig Sea pe AE ted hh aid pond gil
ee r ne .. baa oan trea ime | ae i
a ee AN j r ; oe ne PHY et Spun me
iit SN cavaak. HAR Re Sa Ee eo a baaiaie | iu wi rad
Me a yee . mg
73 = 31197
PSOPL2 OF THY STaTe OF TLLIROIS }
ex rel. @GLIaAk, }
Sopelied,
‘EPEAL PROM SUPERIOR COURT
GF COOK COUNTY,
vs,
WiLilam &, DIVER, Bayor of the
Gity of Ghiecago, 42, ¥. GRAN,
Gity Clerk of the vity of Chicago,
THOMAS FP, ESAKE, City Gellecter of
the City ef Ghicage, amd BORGAR
CULLEN, Superintendent of Police
of the ity ef Chicage,
Appellants,
2 A4].A.697 i
WA, PRESIDING JUSTICH MesURELY
DELIVERED THR OPINION GY THe couRT,
Thie le av appeal by the defendants from an order ene
tered wron a petition fer aundamue en belinlf of Serafin Goliak
for the tranefer ofa retail bewerage desler's license, The
eauee was heard by the court, which found the femues for the
relater and entered ite order and judgaent directing thet the
writ of mandanus issue aguinat the respondent Willian &. Dever,
Mayor, The appelles doce net appear in thie court te defend this
Judgment,
Several pointes are made by the defendants, but one is
sufficient to justify « reversal. There ie a fatal variance be-
tween the relief sought in the relater's petition and the judgment
entered, .
The relator aseerted that he bought ea certain piace
of business and afterwarde applied for a trenefer of the license,
that Willian F. Dever, Mayer of the Oity of Chicago, refused said
transfer of License te petitioner and the petition prayed that the
writ of mandasue be iscued directing Dever te grant sald transfer
ef license, The Judgment orders that the writ of mandasue iesue
against Williem &, Dever, Kayer, ond “he is hereby ordered te
iasue a Retail Beverage Dealer's License, Claes 'A' te Gerafin
Goliak. *
This judgeent wae erroneously entered. The petition
does not allege thet the petitioner ever agplied for a retadL
beverage dealer's licenet, oni no facts are set forth therein
to establish his right ts any such license. ‘The petition is
predicated solely uwpoen the dexand and refusel te trenafer a
retall deverage denier’s Lieaise, The Judgaent is not responsive
to the iseue made by the petition and snawer., Tt le welk es-
tablished that a judmaient wet conform to the shiegatione ef the
petition and precst, and that a materiel varionce between the
relief sought and that awarded is fatei te the Judmeent., Belford
ve Vondward, 198 T11. 192; Berty Ures Pelakow, 181 Tll, App.
Yor the above mentioned reason the judguent is
reversed,
REVERSED,
Matchett and Johnston, JJ,, coneur,
Tay:
Ae
104 «© 31943
a
THE PEOPLE GF THE STATS
OF TLLIF0IS,
hefendant in Rrror,
va.
ALLAN VEGELL, |
Plaintisy ia Srror.
RAROK To THE MUNKOLPAL COURT
G¥ CHICAGO,
Ai, al
9AAT.A. 62 yy
43. “kt ‘i ofhe
WR, PREBIDING JUSTICN MeeuHaLy
DELIVSRED THE OFISION OF THR GOWRT,
My information 1t wan charged that the defendant
with an automobile wiifuliy ond molialensaly wade on enaanlt apon
Denonick Cusamene #ith iautent to infliet ween him bedily injury.
Yeon trial ty the aeurt defendant wan found gublty and Sines $25,
He secke the reverend of thie Juignent,
The seeldent happened on Jone 17, 1986, at shout
9330 o'clock in the evening, nt the fiterasotion ef Longley eve.
mee and 78th street in Chicage, Defendant wae golmg south on
Langley evenue driving an cutemebile, ond Susamene ves coing
east on 75th etreet sn a metereycie, |
Surameno tenet fie? that ae ke aperagenhed the intere
section ke wae going ot the rate er ten or fifteen miles an beur,
when suddenly the ¢efondant shot in front ef him et the rate of
seventy-five miles an hovr withont secumding any geng er tignal
er giving any warning; that the trafvig at the intersection ras
*eretty heavy,” whieh prevented hia fron seeing the defoudant's
nex, "It was not very light,” clthoug) wie street lights were
Lit, Cusanane's sotereyole struck the autemobile and he wae
threwn to the ground and infuret. On crore-oxunination he endd
that the defendant wes about four or five feet way from hin when
he first saw him and thet he wes mneble te state how fast the
aefendant wae going.
“esa As ae
The defendant testified that he wan going south on
Langley avenue st about ten or Fifteen miles wm hour: that when
he came te 75th street he came te «= "new stop" ad looked first
weet ond saw nothing exeept sonething nearly « bleck sway meving
oantward; thet 1% wag quite dark at the time ond he could not aee
hew faet it wae coming; that he saw an oantommbile coming from the
eaet and put hie car inte second gear and cleared it; that when
his driver's seat was about on the aoutherly street car track he
agein leoked west and sav a motereyole about ten feet sway going
what he considered "pretty fact"; that be stepped @ Little harder
on hie autemebile te get over, but hie machine did net plek up
fast ond it wae etrusk by the moteorcyele om the side; that ofter
the accident he eteopoed bie car end saw Cugamane on the pavement
and a man picking him wo; that be then went to the drug store on
the corner and gslied wp the police department, smi then saked
for the names of sone witnesses, Ke remained on the scene of the
accident until the selice can,
There was other evidences tenting to shew that the
street intersection was not well Lighted,
The fugte in this ease come squarely within the
decisions in People v. Adame, 269 111. 336; and People v, Anderson,
SiC Ti2, 300. It ia net the lew that « person is oriminally liable
for every act of mere negligence. Keekless md wanton negligence,
as applied te the rumming of meters ond vahicles, implies a positive
disregard of the rules of digence and a reckless heedlessness of
consequences, Ordinary negligence merely denotes a negative quality
im a person im attending or discharging a duty.
Asnuming that the collision tock plaee because of the
negligence of the defendant, the evidence does not prove — than
this, The only evidence tending to show recklesmens wag/otatement
of Cusanane that the. defendant's oar wae running at the rate of
seventy-five miles an hour, dut he subsequently adisdtted that he
fy
ae stuen ptiing wav oe sans soll seo raahaatek eee cea ‘tuk
fae tat Penk Be ohm ORES x8 He junda de ancove eo Syiced
| iE beato i *oone wisn" © 2) wmne out Soente 20 of sae oa
gay ec os Sooke elem yulifenae dqtome paditen mam haw Pepe
oa fan Pderne od baw oul nis fs Seah Bikup ser 01 taut thumntane
At et gates: ath amerue ne wR oe smelt igartaon sme ot dent wed
anaiw tact jak pewaaty. me sion Seen onmk 08 ete fom ban tea0
aif Hons tay JonTIN Uledtvon nai ap tutgda aww dams atyovinh abd
aeivg Kome Feskt awa sind sforwrotsn «ous hem deny Dinleod mga oe
teem ASE LE w oydoesy wat Sekar {Medhek eeaeny” Byleehaem
| te tos at Be ‘stibsivets ate aed eons bey ot whisen . :
ies peer bine ait a bed Fucnianed wt oa smirntis ert et
ce idl me Atanas tsen » on o etna” Sas wet
cls ait file
wae wmoble te state how fast it wae going, We must therefore ace
eept the testimony of tue defeniant that av he apsroached Langley
avenue Be Yae going only ten or fifteen miles an howr. The darke
ness and traffie evidently prevented either sarty from seeing
the ether im time te ewol4 the collisian, The defendant's senduct
after the acoldent aieo meretives any wanton er wakieloué intention
en hia part. fe mtayed on the seaene end teleghoned te the neolice
department, regerting the aceifent and ressining until the police
appeared,
We ahowld not be utideratood am holding that the cele
aivien ocourred seleig through the magligence of the defendant,
Se area expressing ne opinion on that point. «6 de hold that the
evidence fuils to prove the gaarget in the information, namely,
that defendant unter the ¢lreuetences showed “an abandoned and
malignant heart" ond “unlawfully, wilfully oni maliciously" made
an aaeankt in and ueen ome Genonieck Cumamate with intent then and
there te infiiet upon the pereon of said Domonick Gusamano a bodily
injury.
The fudament ie therefore revereed with « finding of
faet.
RIVERSSS VETN «4 FIPCIRG OF FACT,
Matonett on4 Jonneten, 77., eoncur.
¥
i
tN
%
104 » 312353 PIRVING GF FACT,
We find ae of ultinete fagt that the defendemt dia
mot om the 17th day of June, A. D. 1926, ot the City of Chicago,
in esid State of Giineis aforesaid, with « certain inetroment
eoomonly called an automobile, cald sutemobile being a dmmgarous
and deadly weapon, *ithout any considerable prevocntion whatever,
and wader eirauwmetaness gheving ah abundened and malignant heart,
wilewfwliy, wilfully and maliciously make an aecenht im and wen
one Deneniok Cusumano with intent then and there to infliet upon
the paraon of sald Domenick saseecniel 0 NS injury, contrary te
the Statute in such oswe cade and provided, and against the pesea
an4 4ignity of the People of the Gtate of Thidneois,
115 » 31248
PROPLY OF THR GATE OF ILLINOIS, 3}
Defendont in Srrer,
BRAOR TO MUNICIPAL coURT
WD es
Bie O¥ GHIGCAGS,
AICHARD &. PARKER,
Plaintiff in Srror,
§ A OE fh {2 Sy ¢ y=
2 A vA A. AW a » ead Kasi!
eS od ow
WR, PRESIDING JUSTICE mesuNRLy
DELIVAHED THR OPINION OF THR coURT.
Kury Hampton flied «a eompleaint charging defendant
With wilfully ond wilarfully keeping and carrying om on amploy~
ment agency in the City ef Chicage without firat procuring a
lisense so to ¢o frem the State Board of Commissioners of Labor.
Yeon trial by the esurt he waa fownd guilty and fined $200 and
costs. He seeks a reveraal.
The abstract does aot purpert to centain ol) the
evidence heard on the trial, We must therefore ereeume that the
evidones, Lf completely stetracted, wowl’ sustain the judgnent.
weki, “18 TLL, 104; Glos «. Shedd, “28 122, 00;
epeft, 9049 113, 203. A reviewing court will net ax-
awine the record in order to reverse a onse, eines the abstract
meet contain sufficient evidence te Justify the court im auch
Sity of Chisage, 902 ILL, App. 139;
mam, 170 Til, Avy. 7%,
tery Hampton, the eemplaining witness, teetiniod that
she ei « eign over the d4efentant's office which said "Jobe." She
tol4 Parher thet she eas locking for a job, and defendant told her
if she gave him $5 he would put her to work in the morning; that
he gave her » paper to sign, which she signed ( tte paper does not
aopear in the abstract); that she did not get a job, and he again
promised te get her a fed, but she neither get # job nor her money
baek,
Am eA ene tates A ee ne
Thomas Rouchier, on inepocter of private ompleynent
ageneles, called upem defendant's plage of business and made a
Fequest that the complaining *itneas' money be repaid te her,
Defendant told the agent te get eut. On the ineide of defendant's
place ef tuniness war o large pleeard stating persone were wanted
for different Kinds of work, Defendant told Bowuskhier that he wae
the preclident, seeretary, treasurer, and everything that went with
the concern. Seychier testified that Parker had no Licence.
It de geneudet that ¢eferdant hed no lieenee, but he
Claims that he vae acting fer - sorveration which secured jobs fer
mesbers only; that the nome of the servoration of whien he was
president and generesl mansacer wes the Americmn Unity Yelfere League
and Labor Tmlen, and thet Mery Faseten paid her five deoliscre te
Join the organization; that he vas acting for thie cerveratiaon and
mot ae on individual, The trial court wae eridentiy of the epinion
thet this alleged corveration, the exictence ef which does not ap-
pear to be proven, wae waréiy o Sleeuier by whieh defendant carried
On the Gusloeas of an eopleyrert agency. The veserd bevere us amply
justifies thia conclusion,
It in said that dafendant is charged with ome offense
and fowad guilty of spether, Tha abotract saye that the court found
the defendant “guilty in senner wt fore as charged in the inforwa-
tien," We 49 not widerstend the baste of the contention that there
ie a variance betveen the futigient ond the charge.
It is aeserted that the fine is exereeive, but there is
RO evidence to support thie. The court might well believe thet the
defendant's alleged corporation vas merely a blind te conduct am
employment ageney through which he wight fleeoe ignorant and une
suspecting people,
fhe Judgment ie affirmed. APFIAMED.
Matchett ant Jehneton, 33., conour.
Re}
ovo at + haa vd ypicem: + earn tn estaiecaae: a teste
at tuniae ten te haved one ag i seus oe ne Adee
tbat.
at tet. sone UE a san bate,
et ane iieh get si se: scr oe: A 8 me ne
rae A nae ae Be Mia ome i ve oy
ete
Wy
r
Jills ee 5 Heide di
, ON ae oe aa NT, RP CRE ee ’ sa wpa
MRE BER NE cae tbat pe ll! ie oA
137 = 31267
R, 7. DYYRA, Trustee, }
Appellant, }
ua APPRAL PROM MUBRIGIPAL copper
OF GHIGAGO,
ROYAL IRGRMNITTY Cueeany om a
oF SEY YORK, PAA '.A D 2
Appellee. ; ieee riers
UR, PRRSIDING JUSTION MegURELY
MMLIVERED THE OFINIO OF THE coun,
by this appea) plaintiff eeeko a reversal of an
adverse judgment in a case tried by the court, im which plaintiff
sought te recover en a burglary inevrener pelicy iseued by the
defendant. Plaintiff ever in the trvetes for the benefit of the
ereditors of the Cooper & Pellock Bootery, o eartacrahip eaxpened
of Rert 2. Pelleck ond Kenjawin Geaper, hereinafter sailed plaine
tiffe, engeced in the retail shoe business af 5610 Test Nadieor
etroet, Chicago,
Piaintiffa claim that « burglary was committed on
seid presises on Hay 19, 1925, by reason vhereo! they suffered a
Loss in merchandise to the amount of 049791.20, for which defend.
ant, under the terme of Lt poliey, ie ebliguted to indemnify them.
The defendant denied that any burglary tock place as claimed and
denied’ thet the plaintiffe kept books and seccounts as required
by the policy ae s canmdition of liability. Upon the trial the
Court was evidently of the opinion that the alleged burglary wes
net genuine an¢ sleo thet the insured had not kept the required
benke of account se that the exact smeunt of loss could be gem
Qurately detersines, ané found for the defendant, We are of the
opinion that the evidence fuotified this conclusion,
Wee there a real burglary? The partners, Polleck and
Cooper, were conducting = lesing »usiness in the spring of 1925
ae
Ts
saree NONI IME SAE
bcs ga ~~.
4G 0 “ALI A MES S"
gay ue ie aie iineaailes
GER Yo! atone eat VEX, —r as ea {het ies
hae ah Hi detextaer oe
ele bi fen tee watered eile / it tk:
Dcigeaccia ata ito ani ‘nhtigss: ener
npr ner com tte veseiunie,
ere eer mere ww RE 8 em ue.
and their erediters were oentinusily pressing then fer maney,
On April 15th tuatnese wae eo poor that after consulting with
their largest eretitor they determined te Liquidate their buniness
and s#1i the steck ef geode on hand, Gm April 28th they proeured
from the defendant the burglary inwurance policy upen which this
mult ia based. A olesing out sale was commenced about May Let and
continued until May 16th, It wae claimed that on this night or
the morning of the LOth the burglary oscurred, in which about
@leven hundred paire of shoes were stolen by burglars,
the atere wae equipped with a Kelianee Alarm system,
whieh consisted of a twelve inck gong lvocntied on the outeide of
the stere over the front sie windew. The windows amd glass door
were lins4 with tinfyil in such « way that the breaking of the
glass completed an sleetrical centact whieh omured the gong te
ring, ‘here wae « ewiteh for turning this slarm en and otf, near
the rear door of the store, about vorty feet from the front of the
building. The fron? deer wae on the Left side, im a sort of ene
trance, about four fart deep. To the right of tha door, and exe
tending te the main front window, wae a wialler shew window with
& glees about eight feet Kign. Lack of thia windew was « display
S9ace separated (rem the rest wi the store by a wooden partition,
in wich there were two auali deere opening inte the store reom,
which were fastened on the inside or store side of the partition
by catches.
Polloek testified that as elesed the store at ten
e'vleck on the evening of Way 14th; that he locked the baek and
frent doors, turned on the burgler alerm switch ent turned off
the lights; he knew the <larm system wae in working order; that
when he renched the store about nine o'eleck the next morning he
found a hele in the glass of the small shew windew, te the right
eof the front door, «nd a brick lying on the fleer of the show
ay watz oxane MOE ent Tame. 98 ane nN wails ot e
avanieod rhe tpabhephe of Shainnttor eect sea kbons ¢ ace: ihe “
DetTORTE baal eee Liega eo hited a6 whois to. sane at “a bee a
vidt aebdie now wiing aonaieRs YHOKuUAT O62 tenbaa TAD nae”
pax tn ad Yooun Sessoms aw akan fue walnaie bana 9 Sah
te tiytn aditt no Sede halnty or, a tet, vg ph gi . ;
rota wns a 2 shane ad ate
” ates we nin worse oa a ies ie
ay eos Vie Be: Be ites sity iistwe 9
ots w Ltt a id cid ot the .
wien a propemer) ou ele te ‘puted panini ee
sa ine i Me pe il
window with broken glass on the entrenee floor and the inelde of
the window; that the hole wae jagged, sbeut « foot aad a helt
equere end twe aid a hal? feet trem the ground, ie found the
burglar alarm switeh turned off, the baok tooar open, and the
shoes mineing, The shees hed heen taken oui of the boxes bet meat
of the texee were in their plages on the shelvea, although nome
were on the Mlecr. Ne netifiet the police,
Pauley, the jeniter of the tuliding, testified that
he swept tue sidewalk im front of the store at seven o'aloek on
the morning of Bay 19th; thes he sethoed a anies sign in the
email show winder and etepred te rend it, ond that the glesm in
that vintew wae not breken at tint tine; that he swept owt the
entrance and was within « few inches ef that windew, After finish
fug he went heme fer breakfast snd returned showt nine o'clock;
he then neticed the sign was off eud e kel« had been out in the
glass as if it had been out by & glass cutter; that it vas a square
hole, one wide of which wan jagged. That he went inte the store
ond telked to Pollock ond « Ur. Simenson whe wan rumoainy the gale
for the pertuere, Pollecy telg Simeneon to clive Pauley a pair of
shoes which wee ¢ene, Sixoncom saying, “If anybody comes eround
and asks yeu whet you seen, tel) thee ne, you didn't see anything. *
Polleck wae etem4ing right beside hic when thie wae esid,
tuhe was « boker where chen was four doors from
Plaintiffe' wetore, fe testified that he wae werking in his
bakery from twelve midaieh?t of the 14th wetll twelve o'clock noon
ef the 19th; that he wae in the back part of the bakery with
anether wan, They had a deg tied to the back door, All the
doers of the bakery wore open. They worked about fifteen feet
from the back 4oor. one of the machinery wae runsing, and the
Witness’ hearing was good; he did not hear er notice anything
unusual that night or merning. ‘That it was necessary to pass
his shop in order to get from the rear door of plaintiffs’ store
gee Ren .
«de oaet ‘elu cha "sl erry
git heer ynote eh and Sa), Nomaut Me
“Hata hs weed wit Ye see
Yo dee anaes vet boat wwe 0
5 eR:
a
“gest matt idord Poe wi bepoers ae
aa oni! owes te an at t er at dome 0
Rio)
Cr
Ponsa mat fal ae = te? sy ee Gags
etre 9 al cant foe hast a “teagan sad .
to the alley; the partageway was tepmarrow for an automobile te
pase; that he heard no gong.
Collie testified that he and hie ‘amily vived die
rectly above plaintiffs’ stere; that he was home From 1O:3¢ p. m.
op the 19th until shout 7:00 «. m. om the lth, Mo slept in the
front reem. Hoe did not sleep very seundly, fe heart ne gong
sound mor 414 he hear spyoms walking im the store belew, When he
left abont five or tem minutes after seven in the morning he saw
Pauley eveeping the ui dewalk,
Officer Surke teatified that nene of the eatches on
the partitien deere from the window te the atere was broken, The
back 4oar wae epen, but there were no marke of forge on it. He
tentified that he theught that a man wveuld ve taning a great chance
to get through that bole im the window. Yhe ewpty shee boxes, with
the exeevtion of a for, wers im oxder ov the alalves,
Amotaer efficear testified that grior to the 18th of
Bay he suggested te Yelieck that he leave ao light in his etore at
night e¢ that polies officers could wee Af anybody was in there,
to which Yelleck reyliod, "1 sheuld werry, i om covered by insure
ance,”
Peliosck'’s tewiiseny wae contradictory in many reese
pects. For invitees, he siated Sant as soon as he came te the
doer he noticed the window wae broken, aitheugh in the statement
whieh he signed just after tae slleget burglary he seid he epened
the stere in the woul way and did not knew that there was any-
thing wrong witil he went te turn off the olerm and saw that the
store wan littered with boxes, That he then investigated and
fount the window had been eracked.
It de wighly deprobable taat «a burglar woul’ cut s
hele in the glaes window or could Aave crawled through & hole
Plased as this was ahd 8G wmsll. Also, how could he get inte the
: awe bana oe “sae cone one ta ote om
estore through the partition dcore betwean the shew windew ond the
etore reom without breaking the cateheat from Fauley's undentied
evidenom, the alleged burglary must have taken place ia duyligns
between 7:50 and $260 o'eleck in the morning, it is tooredible
that burglare could in this short time have rewoved over one
thousand paire ef shoes from their boxes or would have replaced
the boxes on the shelvee or could carry the shees away through the
back door without the neighboring baker or hie helper knowing any-
thing about it.
¥rom theae and other clreumstances we eannet oay that
the conclusion of the trial court that there was no genuine burge
lary *ae manifestiy contrary to the evidence.
The peliey 41d mot cever lows “unleas hooks and age
counts sre regularly kept by the insured and are kept in ouch man-
Her that the exact asiownt of loss gan be agcurately determined
therefrom by the company.* That sueh a gondition io a reasonable
one and that the failure of the insured te comply with it wild
relieve the company from liability, has been held in German ineure
nce Ur oe & Up., 67 IL, App. 370; Merehante Kationg) Ine
Surence So. v, Dumber, 36 111, App. 574; Bingars
Ye Forehand, 169 111, 626; wee aloo 14 A, OC. L. 1140.
Plaintiffs kept no inventory records whatever nor
any other books from which the exact amowst of less om Kay 19th
eould be accurately 4e‘ermined, There wae an attenpt te obviate
this failure by intro¢ucing a so-enkled balance sheet or finenctal
staterent, but 4t wae shown that this statement was made and given
te the Flersheim Shoe Company for the purvese of obtaining eredit,
Purthermore, it wae dated May lst and not Bay 19th, the date of
the alleged burglary. All original sales slips from the easn
register and all invoices were destroyed by Polloek and he was
dines ne Bek oe ‘i ‘gaat Shier as vaxtabien ina tee ol
sivinerwal ok NY Qwkictom ote al mnie ee ew bekndl hows
‘one wawe eee ‘evan @aly ey sist ah bes waste wit a
one ide avail -btede ve Wexed Ceaity swore aso te antag b expe a
it Aupotatt queen ‘pone wai eee laa to rw" bal ie ns nef ® |
“ye wanelies omen ake 8 tind wat Mewidgten (awit ne weak tae
Sie’ ud dkktieded ge an vast bate” tei “anti ae eet propre s om?
Lt Xi 4 he Bic a
cee bee aati fap nee iss sad si bn ! sy
“wai Baie “ah tows « ote Ante herinwind ote ur a eteetusne pepe i 4
S oaseasmaas Ssaionagnal td he ae » scan one ad aca «s
‘ ‘tte 3 a ‘ste vititen ae | den at vi we ae eer ae a
“gee on He eek tn ad Se $8
| tatomints 0 fence wanted on yaon # artad
-#hoes » neiatuoee ‘ee iain arate, aia ah wo 2 at Lees dome «
vot yo) ae ty a Bie PARE
er Sd bee a
PRY. tye # $i;
wnable to prodiee any of them at the trind. lie adwhtted that the
decks contained only figures and did net tell in detail “wast the
stuff was." The court was sustified in concluding that the
Plaintiffe 414 not Keen the required becke and sceountes,
Gouneel for plaintiffs complain that their action
for a non-svit aheuld Have been allowed. Such & motion shewld
have been wade before the court states Lte finding. Municipal
Geurt Ast, chap. 37, ene. 413 (Oshi2l); Wedge wv. Comm, 202 Tai.
» S02 Ill. App. 230;
eRe, 174 Lid, app. 273; Doube wv, suppenhelmar,
272 ila. Si. The receréd bere shows that the plaintiffs’ metien
fer a noneselt wae wade too late,
The Judgeent is sorrest ond ia arfiraed.
AFVIAKED.
Matehett and Jennoten, J7., coneur.
My
* he
heel a
hi 4
267 = 351793
MORRIS PSLDBAM, NATHAR RK, FRLGWAR, }
DAVID I, FELDMAN and ABRASAM FELDUAN, )
Deing Business as &. Feldman 4 Bonw, )
Apooliants, }
ce APPEAL VROM MYNICTPAL COURT
Y OHY CAG.
00m aommen, OF CHL CAGO
Appell ee,
ie < - pe Cal
A a’ fe BP DH 4
; f i 4 ED J oi
5 & oite NP Ad ae
= 4 ;
BR, PREGIDING IVGTICN NesvneLy
WRLIVERRD THA OFTHION OF THE COURT.
thie in an attachment auit tried by the court, which
fousd fer the defendant, Pisintiffa sppealed from the Judgment on
the finding. |
The affidavit ofor attachment alleges that Aefendant
owed the plaintiffe $174.50 Yor goods sold and delivered and that.
the place of residence of defencant was Philadelphia, Perneylvania,
and that ‘paid defendant sae departed from this state with the tie
tention of having hie effects removed, and that he le about to
reaeve hin vroperty from this etate, to the injury of the plain«
tiffs, Defendant filed no plea traversing the allegations or the
affidavit,
The eaee was tried in a logse manner, Defendant ate
mitted that he owed piaintiffa the amount glaimed and apparently
the ¢eniy content wage the attachment.
Plaintiffa' attorney in his brief says tuat the
Judgeont must be reveraed for the reason that ae defendant filed
no plea traversing the facte stated in the affidavit upen which
the attachment issued, suck facts are therefore adimitted, Chap.
11, fac. 27, Ill. Stat.; Gone y. Lincoln Stare, 209 Lil. App. 400;
Lloy4 v. Lingoln Stare, 209 I11, App. 422,
Refendant's brief makes no at .enpt te controvert this
eHOAUTED TO
VOSS AT Ks
{ee i
oe a
ara eae of le i
doki~ , ewok ani ed peaas cis damastone te a ab ote oo
NS eS AD
Be Faery bork, sad oan agentes avttinte rt stauhao tee ond tex ‘paw
ee patna oat
dain tian Sa: 0S EN Aele , sieneen OAT aR
tnaeales’ ‘fans enue gawmwioetia ote divabivha eet
gatt baw betevlieb baa bion whe iy, Tod Ot aeE wvrbintate aly endl
biaar hyase ts aiaaaanniataosaail maw faavaorod to weaohions . ‘ uh ig
«ak ant? ate sgeoe abet soe hesnuceh ames taahan ter phew bade: oon
oF swede at ot fxd baw doves oiee'tte wld antead Yo sotdemt
wake ty one ie esked wae ov podeas white mort yteegeta ht oven
isnad te anodtage tin nit gaterewer? alg om belt: fsa haan tot n't
snivasrtta
nhs naben vert sasumnabenenm lic cesshadlynisl ged egal
se wae han heateLy Smmowe ote ave daatete “bewe ost rast eden
-tamcionitha Lon — deosaoe eda sell
point. All the casenm cited by him are cases where a plea wap
filed by the defendant, As the point of plaintiffs ia apparently
coneeded, the grounds wtated in the affidavit for attachment must
be considered as admitted.
The judgment is therefore reversed and the cause
remanded,
RAVEHSED AND REMANDED,
Matchett and Jonnaton, 7),, onneur,
198 = 31327
JACOB NMERLEUSOH, )
Appellee, :
APPEAL PROM SUPERIOR courT
vs.
OF COOK couHTTY.,
HENRY A, KEYLBUSCA, 9) . ee }
ao Appellant, w@A4 iA. OK d
a | 2
BR, PRESIDING JUSTICN MeSURELY
DELIVERED THE OPIBION OF THE COURT.
This is an appeal by defendent from an adverse judg-
“ ment for 95572 in an setion brought on a check for $4400 dram by
him and cashed by plaintifY. The verdict ef the jury was fer the
amount of the cheek with interest.
Plaintiff deelared on the common counts, to which
@erendant riled ‘ plea of the general ieuve and aleo asserted that
the check was given te plaintiff as consideration for an illegal
transaction, and filed a plea of set-off, claiming that he had
made loane te the plaintiff after his check was cashed aggregating
more than the amount ef thia check.
Defendant's counsel agserts that this is a controversy
between brothers, and that the transactions between them arose
out of ynlawful deals in liquor. ‘hey are described as “boot-
leggers."” Plaintiff testified that he received the cheek from
his son (defendant's nephew) and « man named Getty, a “boot-
Legger,* and that he took the check down tc the bank and got
it cashed and paid the money over to Getty; that he cashed the
- gheek because his von told him thet the defendant said he should
cash it; that he asked why the check was not made out to Getty
and was told that defendant did net want Getty's neme on the check;
that he, the plaintiff, knew what Getty's business was at the time
he took the check.
Tags ROLAMMA OKT TANT
“epuros Bod to
ESd AT AAS
xagneen exten SULCTeGHS =. Aw
Rie) we TO waTELen aRY CAMRY LASKY
eis ser sav ‘ean ent te pails amt .Ytidetate nt ba
ae .tuensdal dehy towdo vit to |
Kodsw Md ,Atiatoo aguiaiog OTe ne bei iveh “eticate feet
tens ‘beltepns obfe bas oneal Lexsaey 909 tp ete a “Bel, jouw 7
“Hoyeitt sme 202 aot ohienee na Yetsatase oF aorty saw oesia at
had oct doit shintete ,Yreatee to wola a Be flt ham ooltoeonee
| atten tage bated pew “oare ole Sed'ta Thidabete ont of easel eben
toads okt to Pappa ade nats oxen
Udteverines 6 al eG InXt asaeene Donawos at dacbaetet : lage
ohola meet werted anotisawnexd ocd fedd ban ere aosmeed
adoed" a2 bedivseeh ors gal .xeuphd mi eiand tote tn te tee
Se ee odd Lovdrost oh tase hottidued Ythente rt ‘oan Welty
nbede™ 6 gtde0 homme cae 6 bin (wesiqae a taabasted) aoa okt
| fy Bm nes we ot cas doen act Sot ok fad mw * eenaN
bee sae aala nena ot ee ee a sr re *
195 + 31327
JACOB NERLEUSCH, )
Apnelise, )
APPRAL, VAOM SUPIRTON cover
¥S,.
OF COOK somrry, .
HBERY A, MERLEUVSCH,
Appellant,
MA. PRESIDING JUSTICR MeSURALY
DELIVERED THR OPTION OF THR cOTAT,
Thie is an appeal by defendant from on adverse fudge
ment for $5877 im an aetion brought om « cheek for $4400 dram by
him and eashed by plaintiff. The verdiot of the jury was for the
amount of the cheek with interest, The olaintiff does not appear
in thie court te defend hie Juctgmeont.
Plaintiff ¢eelared om the comeon counts, to which de-
fendant filed a plen of the general teene on? aleo sanerted that
the cheek wae given te plaintiff ae caneideration fer an illagel
transaction, and flied a plea of seteoff, claiming that he had
made loane te the plaintiff after hie cheek war cashed aguracating
Bore than the imawnt ef thie cheok,
Defendant's counsel asserts that thie in a controversy
between brothers, an¢ that the transactions betwee them arose out
of unlawful deals in liquor, ‘They are deseribed as “bootleggere.”
Plaintiff testified that he received the check from his som (de-
fendant's naphew) and a man named Getty, a “bootlegger,” and that
he teok the cheek down te the bank and got 1% cashed and paid the
Money sver to Getty; that he cashed the cheek beeeuve his son told
him that the defendant eaid he should gash it; that he asked why the
check wae not unde out to Getty and wae told that defendant aid not
want Getty's name om the oheck; that he, the plaintiff, knew what
Getty's business wae at the time he teok the gheok.
It is claimed that this transaction aross out of the
"“bootlagging"* business and that it was reversible error for the
‘gourt to prevent the orase<«examination of plaintiff as te hie
knowledge of thie fact. This exuuination shoulda hare been allowed,
The dafendant tertifies that he leaned various sume te
the plaintiff, aggregating 24400, whlch were newor repaid, and supe
ported thie by introducing ehecke given te plaintiff. Plaintirr
gays that he was “pretty sure” these checks were for merchandise
whish he had sold his brother, Yo negative thie, defendant tes.
tified that he had given plaintifr a nuwber of other checke for
various sums, which vere for merchandise, and offered euch checke
im evidence, whieh he eald contained notations wiich distinguished
them from the cheeka given to plaintiff fer Leena; but the court
refused to allow theee checks slleged ta be for merohandise to be
intreduced in evidenee.
These cheeks ehowld heve bean admitted and the defente
ant permitted te testify ae to now he identified then from the
be
ohecke alleged te /eiven to plaintiff for loane. Thie vould have
tented te suppert defentunt’s plea of atteo?f and alas to refute
Plaintiff's denial that ®e wes in the Liquer business,
For the reapone abeve indicated ,the Judemeant ie ree
versed and the cuuese renancded,
AZVERSLD ABT) NEMARTRD,
Katenett and Johnatoen, 77,, concur.
hawolsa ouisatilia phe
as — r aolaey none ef ect
cairn as tor ete | mina ile oo %
Wik eee
R04 « $1436
VRARK KRAUas,
Comp. ainment,
TR.
VEROBICA KRATSE,
»inhibtmnsataly APPRAL FROM supaaton COURT
OF Cook counyy.
VEROSICA KRAUSS,
ie it rene ei ge a a a ga on A Sie Rit agar tan ea Neer tg
Cre en-Complainant,
Ve.
PRANK ER AUSS 9) " A [ t t fhe 6) ) o~
Gre se-Defendant. (ed) A. eh. @: pd 3
wR, PRESIDING INSTICR MeSuURELY
DELIVERED THA OPINION oF THe CouRr.
This Le a appesl ty Vereniea Krause from an order
denying the prayer ef ner petition, im whiek she agke that Frank
Krause, her forner husband, be held in contempt for failure te
pay srrearsges amounting to some $3,000 ararted te her by « de-
eree of diverce for the susvert of tee miner children. Ne ree
plied by affidavit to the erets-compiainaut's petition and the
eourt after hearing evitemce entered ite negative order,
| The parties were warried in April, 1910, and Lived
together until June, 1917. ‘Twe children were bern to them, and
wers fourteen and twelve years old reepectively at the time of
the hearing ¢f thie petition, in fume, 1917, ‘rank Krause
joined the United States “avy and was in this service until
August 25, 1919. When he sought te return te hie wife he found
that she had moved {rem their old addregs and was openly Living amd
cohabiting with one Hike Sulec., Ne thereupon Tiled a bill for
divorce sguinst her, charging adultery. By subsequent agreement
ef their respective attorneys ond in order, he aaye, nei te caune
TiS. co persne wot tateras
ga 8 “PRINS Bh Ho”
RSo4.1 DASi.
We
Sie ty +5
Bay Daas, Soo
wh 7 — reas au too a pen as ik all
at bg eae Maen iss rnobtisng. nase da aya
\
598 perry aba sere evans, wikia iil 0 oii |
et Bee Wiciniins Ot mle Lonep nae, ot ef. Fhean ENE eo hak cg RY
dite tine aaee iil wt nda eae sinitiene hdl i ia ‘peal
- Hine «moat OF chee waww seRhLen owt pest tentoxet
Dic. -aeapommaprpesienmetonrietie:
any scandal te his miner shildren, Mre, Krause filed «a cree.
bili and preevred the diveres with the underetanding that no
Support should be asked for hernelf. The deeree ras entered
June 16, 1920, end $10 a week wae ordered to be pald for the
support «7 the twa ehildren,
Myre, Krause was marrie¢ to ike Bulee in 19%, and
hse had the children in her eustedy all the tiwe, rank Krause
hae remarried and hee twe children by hie second wife, He teatie
fied that he earne? from #90 te 9156 a month, and that he has ne
Savings; thatihe worked as gardner, There was also before the
oourt a report oriticiaing Sre, Bulee'sa reputation for honesty and
her conduct as a mother,
Tas chancellor was evidently «ef the epinion that
under a1. the clrowetusces the petitioner had net shew: that
Frank Krause had wilfully refused to comply with the dacree with
reference to the payments to be made tuerewder., We sre of the
opinion that the ewidenes Justified thie cenclusion, und the
order appealed from ie affirmed,
AFFIRMED,
Matchett and Johneten, 77,, ooneur.
Karcuaes ear saowh pat nr wish bentess of hve,
— vonheh tow ad o€ hertehte maw sows : *
oniienh daar’ outt ode She wbedaue me ot ba pe as ,
~Heet on _anithy Ninosoh wht yd wert Leto ond teat bas sere ot en
aw dm son neo isan a Wea ot O00 mom |
ef
. pees
a aa ae
235 « 31367
THN AUDOLPH WURLITUGH GONPARY,
se Corporation,
)
Appelies, !
APPEAL FROM MUNICIPAL court
vo.
} GP CHICAGO.
LILYAN VALERA, )
Appellant. )
aN, F)
@ Yew
jl
FG!
>
@
(ez
ws
Gs
UN, PRRAIDING FVGTICN NoesUASLY
DELIVERED THE OPINION OF THR COURT,
Plaintiff teck Judyment by confession against deo
fendant on a proud seury mote with a power of attorney eigned by
her, Gn motion she was granted leave te defend, the fudgment te
stand as seourity. Upen trial by the court the judgment fer
$1644.15 with attorneys’ fees of $149.47 was confirmed. From this
defendont appeals,
Defendant's acte ras given plsintLi? ae part ef the
purchace price of a plano and her defense ia (1) that there was a
breach of the implied warranty thet the piane should be reason-
ably fit for ite purpose; (2) that the contract of sale was sube
Jeet to her apprevel within thirty days; and (3) that there wae
an independent eontract te reseind the transaction,
My, Fenton waa owployec by plaintiff ae & #aleaman.
In July, 1925, he wae in charge of a branch of plaintiff's bust-
nes¢ located near defendant's residence and called upon her and
negotiated a sale of an¢ dolivered a grand pisne te her subject
to her eppreval. This piane proved uneatiefactory because of
ite size, and defendant requested tte resoval and the sane was
Fenoved, August lOth Mr. Fenton took the 4efendant to the
Wabash avenue store ef the plaintiif where there wae a wider
selection of pianos, Defendant had no exporience in mueieal
TAY GORLO TN, MORE Uae
-OBADTHD 9
{ | “Pansina
one & @ a) ahi ‘ wiih i
Petia teh ) nota ane £ comers Scat wih
hag a
Sa TEE a
meh teehee aolane Tires wt ‘Pape bart, sero PUR ethane yt
(RH Demis goat otsa. "to err, re aby ogon rons ion a a Fg Oke
ob sasmabut end busted of evans degnamy, aay oie ction tok ie
yihe™ Sanauhat, ent Segoe ont et false oq - Hada ee hailte
eR. sbeanatane, gan So. ghae ze aver Tamenite an astaaaalll
Sh
a eae ona sass (&) dese eve conte, ahio tr faronaan x08 98 B08
— etehtoen and o89 Kakosen of tomtdeon tnebpeqebat aa
‘sain Sat #6 Tesdtnte ys hevotene ane aetaet a Om
“hed WPA AbtALy To, Memed 8 TOs at wa a RE NE ‘
Lid ts NoGh botian bite mo mebtnet attanrawiad saom betaned poe |
teases ted 09 orate tant, @ hexovdlod hae Yooninn a hedenee a
te eauoned (reteo%2eonne hovers stake Ad8T .karvonagn 0d oo
heal ost hin davon BHP Reduouper dunhuntad Aas ante ag2
me of sac aml ash ailaticlahel teil blige sbovenes
inatruments of that kind, dif not play the plane and hed never
orned a plane before. She selected one whieh seemed satisfactory
and Fenton told her that if it shevld not be watiefactory it might
be returned, With that understanding ahe paid $290 on aceount and
executed the note in question, secured by chattel mortgage on the
piane,
Defendant anys that a day or so after the piene was
Aeliveret 1¢ eanowded “lLeud and bangy." Yhereupen she called Yentean
by ‘phone and he promised to send « tuner, saying it wae always
Recestary to tune an inatrument of that kind with reference to
the room in which it was used, 4 wae atill unsatisfactory and
Venton sent a factery expert to put it in order, but this failed
end defendant requested that the piace be removed. Fenton asked
leave te have tse plane romain in defendant's apartment and that
he be permitted te bring prospective purchasers te the apartment.
Such leave wae granted ond prospsete were brought by Fenten to the
aoartaent te exacine the sianc, Featen then examined the tnetru-
ment and etated that he "didn't realice what bed shane the plane
was in; I couldn't sell that piang in that cendition,* and that
he would have it returned to the plaintiff,
A Bins Hartman, who wat o profersoeional mugiclan with
fifteen yoors' experience, teotified that she exanined the piane
and that the tone wea Lagking in “quality snd beauty;* that the
“tone ie dead. It Ase no resonence or overtone, *** I don't
think tuning would tmwprove the quality of the tens, ** It would
appear to me that the action of that piano was smong the cheapest
I have ever tried. I mean tae cheapest in price and the poorest
in quality, ** Some of the keys would atick.” In a goed piano
after you strike a Key you tear the ring for a certain length of
time, “This was like » thud," She testified that ehe neard
thie plane before and after 1t was tuned, "I would renk the plane
a8 one of the cheapest I have heard, *
xovan bos hie ommlq pais lg tom ohh hadi tentt ‘te atuemectent
Crogeetelton Seneax se biw wero bandon foie ae Sth se
trig kay tt Wiesontadtee od dest far gete Ce ca ate sane hed oom cote Oe
“hae Preoage a ie mise tie in gecih ans eration tage eee. Amceneton ad
ott mo eBeKI Kb tet ada, yd heawous amg at 2 ace ate Dawoen
enw on ta Loe tovte. oe to hn 8 Sait wyas | Pantene fA
maton’ Ratieg, ete seqyaxest Titeed Dea Ayek*dotaur a dormer hind 4
emda naw 22 pelyae, pn A sa08, oa erin °6, bo cnodet yt
iP eenetetns dake bakh tee ‘to. Senate te Wie Of vineaoea ae a
haw icdea takin Lite ww oT teow ee a ak mot ute ae
pebteh wh Hat yeehae abet awe 08 sue werent 2 J
Posen Hore Ldiemio€ of pth aK Kad ~s Pnahe
teat bas Peneonace: it nahin ian. dae akset ips 9) att wee
ome: ae ciptee T ie sas etue atorpien: bas mbrath we
sehen i enittoaain meat date’ snciwby ale ry et ej y dona ener
natn it oewir Hoek Satin wa Lsand aA EEY bd Ry Reece mi ie 9
sastt tine, aoe Hino dade: a annke Hash fea ehihue or
He PE Snatch ok Reet a ret ia es “pit
Kobe nsbeeine tiacteae'tor et dae eile, nemeiek wale ae ing wi took
pate ent bectamee pao: baits: peket eens x eon oie ‘eawow ong
ee tnt: sepnenet fron go tana ad enliven k ‘hae Onet walt Hatt po
aetna ne See ty whomMDOET putiows bl poner
ment He voted wake to YO Mine ont oveergiy Blwiow fpaiienntll
wordy na gra anie owe sony te waktoe od shi 4
wartin Marvinac, a piane tuner of thirty yeare ex+
perience, exaxined the piano with two men from plaintiff's office.
He saye the plane “leeks quality in tene;" that “it hae ail the
parts necessary to make an instrument, but they are not assembled
in such a way ae to make if # firet-clasea inotrument. It has no
carrying quality « no tene-aerrying quality. In my estimation it
de net conetructe4 to have a geod toneecurrying quality. ** Thie
piano is unlike a plone of ite value and class ond cort and appear.
anee and everything im gemerel. *** It ie not constructed for a
high-grade piane in any way. You cannot get very much result as
far ans music peasitbiiity is concerned.” That while the hammers
could be “velced,” wuich means pricking the hommers, it would not
“stand uwp.* That it te a “commercially made pinne, one made to
Bell quickly."
This testimony ise net substantially denied. The tro
men went by plaintiff testified that the piano needed vcioing;
that the *yump” wake . Slight neise.
3 See. 15, chap. Lia, 111. Stat., provides that where
it appeare that the buyer relics on the aclier's skili amd judge
ment there is an implied warranty thet the goods sold shall be
reasonably fit for the purpose for whieh the goods are sold,
Tn J. 2, Seeburg Piano Co. v, Lindneg, 221 T11, App.94,
it wae hel4 that there was an implied vrarranty that a pipe organ
gould be satisfactorily played oni used in the service for which
it was beught, ond that if the evidence showed o breach of sueh
warranty the buyer could net be held Yor the purchare price, We
hold that in the inetant ease there wun an implied warranty that
the piane weuld be reasonably satisfactory to the purchaser for
the purpese for which it wae bought, ond that the evidence amply
proved that it failed in this respect and there was a breach of
the iuplied warranty.
» edu
ee aheey “et had “we seca eontat kee a santa think?
obtis oritealehe mett une owt Ava pew he etd batindik’ od .
“ett hee nat 8 tend “temo at Yetiare woot ‘pew bey dd oven oe
ba rdomnns $4 wie Yad? Teil , tonmrsea) ‘he leat ee inane i eden
“wi eed et Former bee wean tind os et lew ae ‘ss “Gina Fags cays .
Ph Gnlawcttem ya al eee btu gaterensasted os eit any ead : x
ata on jya tiene eck great abt ‘how a oved “ hedoundeaeo fon ee
wenn: btw dado how wHely bac gudav ast Yo ermde #odtine 22 "oae |
aU hetowadaden tag ab gt) ee ral hci hihi seo ota Mi
en rueor li iad te danews aot a ean enn ‘at ‘tami te obeying ht ae
wimrwail wa otive duet * yhwarounas a geettikemad otuwel ll oo
tom River 74 Breast end ebbing anes debe * peo tns® od Wi Be Hs
et whew wae “oui ‘etm a * oh a gue ier aah on uo
Banat ieiet NR ah wath pages! rele Bip 4 ae
oe oat aba bin itn 8 cut ae eres ‘gqiami teed iain 05 a edie |
omits hebaoe icy wale San ae aoaNe ‘Vetanie te ye te 0
Se ae
etete taxi wantvers anes SED goth esate OE cede” Aye head at oy
“att Siw £8 aransiee | i weit git d deas wnsiin hee
efi
Je cltepaaee” aa)
Sian ty we eh ate
Paige sok ae: tee wn
dkvoo /
ia OS
venue wewD » dantunk a se
Fantom teetified thet the "sale wns negotiated on
the dDagia that 1t was toe be on thirty 4aye trial.” It ia not de-
nied that defendant netified him within thirty daye that the siane
Was vneatiafactory and requested ite reneveal and that he agresd te
have it removed, There is no convincing evidence te contradict
this, kr. Fersival, plaintiff's general manager, wae present only
part of the time while defendant was examining planes in the Fabash
avenue store and did net hear ali that wae sald between Fenton and
the defendant,
Fenton's awtierity to make oveh conditional sale is
attacked, He wae the general sales agent in sharge as the braneh
store of the Plaintisr una Was recognined a8 a general agent. If
there wae any limitation om bis authertty to nexetiate and make
terns with o purchaser, gust Limitation wae mown anly te his
principals ait simsel?. Se far ae the public was oonecornad, he
had apparent authority te negotiate the terms of sales, Bwen if
he exceeded hie private inatructione, yet if he acted within the
apparent scove of hie authority, the plaintiif will be bound,
mer, 206 Ili. ADD. 432; Parker wv. Griliy, 133 £11.
App. B00; Ue 8. Life ins, Ga, ¥ _Advenee Co., 8 T1l. 849.
The evidence eetablished a reagiesion of the contract.
Fenton repeatedly told defendant that plaintiff woyld take the
piano out of her apartment. He se requested Percival, the general
manager, who promised to "piek it up.° Later when Percival and
Venton were discussing « commission which Fenton claimed on the
sale of thie piano, Percival refused to ellew the same, saying
“that pianc 1s coming back and you 40 not get any eredit fer it,”
and that it would positively be picked up. It wae suffi olentiy
established that the plaintiff agreed to take the plano back,
The defenses asserted by defendant were sufficiently
established by the evidence and the trial court was not Justi fied
in finding against her, The judment will therefore be reversed
to kodaidoner eer wina® an? tadt be Priveed nile :
o¢h tema! PE OR Raledomed heey ae ee ee oe eR duct alnad i
pita ond gad? ayeh «tide abiekwmtd betiven ssatantoh dad beta
ad aannye art sanstd Pee Te ee <qiodoa te lteaay eae i
totietiaon 4 esaetivs gatondvnse oe et ated? ssevount thvowad
{Ane Cmhaoig One TAO uM, esaieg a! Thisakede ~Lewlone’, 6B wehds
Kasia add nd soneky gatntanne ape dasatooow "tab wbabe. oaks od 9 aaa
fae agtant mente: siti wae sett Lhe teed: sad bh een PAID Mae
oe . | Paatan tab baa ay
ni eise tao ay 2bikeb “fo ase atom ed eth oridu Babel ee ie an | :
douetd #639 to eysede ‘at fone an tga Fonenng ost ene is abe
a tema tee $99 & Me aemaReseT sew pax Fett pe
wes “son bese atattoven of ethrovtne eke te woking bia f ae, sae ated
| ‘ote oe ive vee eae HOLIel RehL cows taaniotng «te ameed
= i «beesonaine honial Hissin eon me gee dil ahem Me hee a
¥ Pee EOF ae a
, Ty bogh mh oa
towtaaes: ne ‘te dokanivect | rs pmathiaacan 4 sonnbare dt ee:
eye lie Rib a th Pee
ae bor Vadentece « sate tgnan ah noe einedance sos ee
ae t nthe Beso sip Se gokesdonew 4 @ pale spe a
Ce RS as eee mse tke |
Gms
Screed
ey ony whales hy A
ay ft
with a finding of facte and judgaent of nik eapieat will be en-
tered in thie court.
REVERSED PITH FIRDIBG OF FacTs
ABD ITOOMGMERT OF BIL CaPlar,
Watehett and Johnetan, I°., coneur.
ite sak ony cane i yak
235 «= 31367 PIRDING OF PASTS,
Ya find as vitimate facta that there was an implied
warranty that the piene in question would be in playing qualities
Yeasonably satiefacteory to the defendant, aid that there was a
breach of such implied warranty. Ya sieo find that the sale wae
conditioned upon a thirty days trial of the plane by the def onde
ant, and that within gaid time the piano proved to be uneatiefac.
tery, and that plaintify wae s¢ notified and agreed to reneve
the piane from defendant's apartment. Ve also find that plaintiff
agreed to reacind the contract and take buck the piano,
yay ae
: a
295 = $1427
GARULINE LEDEMER, Executrix of
and Trustee Under tne Ti11i of
Samuel Lederer, Deceased,
)
\ APPRAL FROM MUNICIPAL COURT
va.
OF CHICAGD,
aaa GOLTMAN, alias SAuT 4,
Dae AB Tk ¢
Appelice, 4 AZ eae Oe eo Qf
N\
\
BR, PRESIDING TuMTIlce BesuRELyY
DELIVERED THR GPINION OF THR GoURT,
This fs an appenl by plaintiff from an adverse Judge
ment in a auit te recover rent. Under a written lease with power
ef attorney, Judgement ty confession was first entered against de-
fendant, but om his motion this was set aside and upen hearing by
the court the judgment was against the plaintiff. The defendant
does net appear in this court to defend this judgment.
The leasa provided for rented at $125 « wonth and
expired April 30, 1925. Uelendant remained in possession of the
premises and paid pisintiff rental at the same rate fer May, June,
_Faly, August ond Septexber, 1025, He soved Septexber 2th, and
this suit ie for rental for the senths of Goteber, November and
Decenber, plaintiff claiming defendant te o nold-over,
Defendant claimed that he had sn agreement te pay
rent only fer the time he aceupied the premises, The trial court
foun against him on this fiseve and held that he was a holdeover
tenant, but 4uring argument rained the question whether plaintiff
had proved Aasiages for the months in queetion, A witness who
rented the property for the slaintiff wee etili in court, and
Plaintirr offered to recali nim te prove that plainti7f 414 not
rent the prewises after the defendant moved out; but the sourt
Fuled that it had me diserecticn to aller thre witness to be reealied
et ni ae a
ash Sales: nae
acta aneteg uti won oie
, «sorta , aiid
é iO vo i veel”
x ae Kibale se ME od
Ephahee 4 ia, Sa #5?
" fr ae in lat SOS a se RE a
ae K vel, Svat Q SR ORE: SER:
“yooh wo reer euretamrt ca ACH HN,
' f witty EM rami ws EA: ORR |: ate
toe ‘wer & worH EEO m.. re
" a
oy ge
oe ee, aa,
#phert saxovha gy opt Thidale te wi deonge aa 9h PMR isis ae n
wtoweq ddiv seaet aetiiaw a whe Jie aeveeet af Sive a oe ton q
op ana maa x0 a Fp
ash teateya Rixota souk) saw cokene tase qt taramdet ,comretee . i
ed gabtaed moqe des ghine ooo wav what agkiom ait ae tue etnabaet :
tmabiote oat .Thtvalate ent tactuge com Invmyhwt oat tude ont
steve abeis: bow'ted ad Purae eli md woncus son ash Be
bike amo 4 BLE Be kadeex Vol bedirore wasnt wut
edt Ye aptenaesom ad buatower Semhen tee OR 0L (6 ins Dexter: ie
,ovust. yall ok oat wn acd te atawe TRRatete blew ban asadnong
bao ,#0t xodavtqod baven wt 2K tedueten® haw eavamh ih
bee wedew vot wodoseo ‘Ho emawou od so Kind em vo, aa dawn ahas
-ToVOMb Lost oat tae 20 0b pakatete Vittale te stdnaood
wae of Inaaeo rye fn bout oe dyste beatais snaran ted
deen fated pet phon tunre ott bodquoes od vat? ost 10% cing dno
wh tom « sew vit suite bio hae uent ality mo utd doatage beer?
Vibemts te westtone metteoug ot Reale Povanate patie ted trons
ow aneatiw A i tase at ndtane oat x0 Beghnad bovorg ba
a be tiwa0 at Soke nate WARS te |
; fag me Mtsniese aaa vena of aid Lines <p brwtte vinentetg
aia one tat uoqore ead beteeet |
after the plaintiff had put im her case. In the absence of any
evidence as to the rental vale of the property end the fallure te
prove that no one olee had paid rent for the onthe in gueretion,
the court entered a finding for the defendant.
The court was in error in not allowing the plaintiff
to supply further proof. The court has discretion te allow
parties to introduce vets An * jury trial after the arguments
are completed and the jury has been inetructed. Indieng, ». # W.
Ry. So, v. Hondeian, 196 111. 601; Chicago City Ry. Ge, vy,
Sarroli, 26 T1l, 318; Stivers v. Conklin, 105 T11, App. 283;
iyberg Automobile Werks v. Dovaym, 159 T11, Apo. 95.
The proof established « hold«over. Sefendant,
failed te prove the alleged agreement te be relieved of rent when
he moved from the premises, Yhe trial court so found, as follewa;
“The court finds from the evidence that the defendant,
Samuel Goldman, held the dasised premises after the expiration,
by ite terua, of the lease in evidence without any valid and
binding agreesent with the landlerd Sanuel Lederer inconeistent
with the exercise by eald Samual Lederer of hie right to treat
the tenant Goldman as a bold-over tenant for the year commence
ing Key 1, 1925, under the same rent and provisions as the
Lease in evidence which by ite terme expired April 50, 1925;
and that Samuel Lederer slected te and did heid sald Goldman
as such holdover tenant; and that sald Goldman paid to said
Lederer, or hia agents, or the agente of the executrix and
trustee witer his will, rent cf $128 per month for the months
ef Mey, June, July, Auguet end September, 1925, which rent
the said Lederer, his agente, efo., accepted,”
Bo ebjeetion or exewption wae taken to thie, The
holdeover was on the same terma as the written lease. Clinton
Wire Cleth Ce. y. Gardner, 99 Til,, 101; Geldshorough vy. Gable,
140 Tll, 260; Bopstein v. Kulm, 225 12. 115.
The oevenant te pay rent ie an independent eovenant,
and plaintiff was entitled to recover according to ite terme unless
the defentant shews ite teruination by eviction, relense or sure
render er a reduction by set-off or reeoupment. Sela vy. Stafford,
264 111. 610; Jones on Landlord and Tenant, p. 77. The abandon-
ee TE CRREN AE ENO a aus act vebatata oat s we .
OF mello? ott ban yonegene one ‘to lew xoowe wait 98 ‘a6 ovsmbaye
spedeenen, at cia gi8 one ‘te omnes Blog final nde ate om ands ovora
stow dco tod wie to gabhast 2 henadas feweves ,
atsndass ats pitwo te de si teyse wh ww Pua waht peer
i BOR f
(wed se ot moda com tir ‘Rall eeegp edt Heute weadgeages hogue “
9v9
atwemmgtea «4 xothe Labst yoot, "eh oenahonn sowhotind of nokitag Ne
Seamnmucine itis ewe Met FON Sieh ee ham bese Lames ” a
stl ALE, hoe. Att ORE oth
sen eee (43 00x -ablsaa?_ st amavAtt evel +a, oor oe
-tiiaettest cinrann tod ry 6 Seven tenes say wath % Be ho
Mohd Heine Th Hwa Let wd oF Femniodtije Mnf Be dal dente vo ‘Macias af
teweher'ee vannaeon dewos Latie we” a
| woibs i eae cae oe hed so cai
= ead MO
iy ge ‘ua b ot ye a sreas 3 are.
wend : ment cote
‘Pal bx WE Sis neotht te! dure wcntees ane ae kw
7 ot aoe A & OA Mamhiow ¢
ee ee ae ae aemise fnaant Mt
hae ptagie? tovebiod nl
wey ceniegy ye elt ee a
Ps 4 % hi tan
™ eke
ne pes "We aa ey, ce ve
* ,hesquose « sete Sahin aa yamnet 5
hind ae ad
one “3 veils 00 solat saw noliguoms xo noltenkde of
| ene OPT bo pu mac marr one eid nO gow |
| hoe Ae ag ee
7
CRNA ‘ic SS tamed
sacar eit a 1 Imre 9, cada. Sean i
Wt of Dutt itan war THRntale bap
een y, opus fnphoatan, pp
MiEayer a ws idspnahas
ve 983 LUE gh i
Adoubex sxe xobame
% Ono {th Oa
Fe ae y one oa
ment did not terminate defendant's liability to pay the agreed
rental, P Co» Ve Shiemgs, Nh. Tt. & Pag, Ry, Co., 164
Tll, 26, The proof of the lease wae prima faele proof authorising
the recovery of rent therein reserved, Jone on Landlord and
Tenant, p. 770; Cohen wv. Pluwtree, 170 T11. Avo. 3A1; Weddkneoht
a, Clark, 215 Thl, App. 364, There was sufficient evidende before
the court to justify « judgment for the plaintirr. 7
We are aaked bo give Judgient for the plaintiff in
this court, end we have the power se to do. ee, LiO, ehap, 110,
Practice Act, Ill. Stut.; Sherriff vy. Kromer, 25% 111. App. 880;
Trustees v, Hoyt, 318 111. 6).
The jJudgsent is reversed with a finding of facts
and judgment for the plaintiff ie entered here for $375.
REVERGSD YITH VINOLNG OF ¥aCTS
4AKD JUOGURET WERE,
Mateohett ond Johnaton, 77., concur.
tacroreipan” ane At Se ae aa Bidi ds
oxsttad ennnh tre dive eke ait all
ua
aden't ‘to githalt 2 atin ‘he
ar ret ‘wenn Sushma ial weiner ae xo fas amg art, hae.
Tr ee Eh: ub
Sel Ga Sa
it » aa hah
A Ne Same
a wea se
S ney brew
we “ hintete me
4 OR Beas
1h ap Wea tc 8 ee
sods ot jh ee ya }
Pe hve weer iis.
bie tit ey WA UE aa sya re ary pak tend
eh, iets even
; h ‘i ji ty 4a a ORAS, ae We
x; + ¢' s ‘ 5 t read
eRe SA, RON ap SRS A RR tee ae SMI gh At ch Hae
Da a RAS A aa aD
Md SRS NIRA: CRE she i 0 Oe ts eae
295 » 31497 WINDING OF FacTa,
The court finds se wltimate facte from the evidence
that the defeniant held over from the lease expiring April BU,
1925, and that defendant becuse and was bound to pay rent at
$125 a month for the year commencing Kuy 1, 1925, under the same
terns as contained in the written lease, ont that the plaintirr
ies entitied to rent at the rate of 9125 a wonth for the months
ef Cetober, Kovember and Decewher, 1925.
£ Pasive
ea! Hy
Os >
* Y
ras a
ir,
* ai
. ae
Nem ENutaist
i Me yr is ity
ae oe ;
i
ou cay z x
is
} y
Pb Tad
TR ie
DASA oe
ei t et wy ‘\
wii) he ie
y G
‘te
eA
as :
be \
‘
; pens Ratt os Aah, 0
317 = 31449
AUTHORS PRESS, a Corvoration,
)
Appellee, )
APPEAL FHOM MIIRICIPAL comet
76.
OF CHISAGO,
GEGRGR FP, KILLINGRR,
Appellant, }
QaAATA poaens
Kes Lie Fae. One
UR, PENSINING JuSTICR HesuReLy
DELIVERED THY OPINION OF PAR couNT,
By this appeal defendant seeks the reversal of a
| Judgaent against bim for $178, representing the balance claimed to
be due on a twenty volume ant of Authors Digest sold by plaintirr
to him,
The gaase wae Piret tried by a jury whieh returned a
verdict in favor of the defendant. On motion this wae set aside
ané a new trial granted. Thereupon the parties agreed that a jury
be waived and the cause submitted te the court. The evidence
heard by the Jury wea considered by the court, whieh found for the
Plaintirr.
Defendant's attorney in his brict argues the case on
the theory that the procesdinga om the trial by the fury are bee
fore us for review, This te o misconmeeption ef the situation.
Then the verdict of the jury was set aside and the wotion for a
new trial granted, tiose proceedings were wiped out as far as this
court is concerned. It ie for us only te consider whether the
evidence justified the finding of the court,
Defendant *as apyroached by HK. Mighaeleon and a cone
versation wae had Looking te the purchase by defendant of a twenty
volume set of the Authors Digest. A written contract of sale was
signea which apn tained the specifications of the volwaes, The only
one in issue ie specification #4, which deseribed the binding as
*full leather,"
a
» sagan ase Ie
200890 e
noe
RARER
“
i x sayrores et “pas ‘Yank oie ia ca
‘git bomba Lo poite kad ads ad for ‘ot mis:
‘Wibemdncs mF. bhow toogde eroritih te ‘the f oemnkor a
ue
7 % ws Hake uh & we, hota fords tow eens ae
ones a naw wails ‘tebe: Lapeer a6) %H rowe't pre to
oma 4 fast bewxpe ‘wont swig sal mowmmr oat? -betaaty, Leaked: wena ae
agrees. watt «Paavo ont oe andtinewe eouko oat bow Seeker
oe 402 aad sone FaHH08, wed we hwrphdaies aut ea wt iil
y
Se an
ine said ae, - oteabonion dn « pers ues
nape isd out ite bien gen tow fries ait iit
Defendart claims that vhon he purchased the books
Michaelsen showed him « Lime leather binding and defendant bought
the set with the underatanding that 1% would come im limp Leather
binding; that Miockaelson gaia that thie type ov binding wae «
*fyli leather” binding 28 specified by the contract; that when the
vocks were delivered he Afiseovers4 that the binding was “net in
aceurdance with the binding on aid beok as deseribed and exhibited
te him by" Mionaeleen, Defendant wrote plaintiff two letters ree
fusing to accept the booke Tor the reason shat they were not as
represented by the agent, although in aelther of these latters is
it specifically stated in what reapact they differed from the
eontract specifications. There ia no definite evidence as to how
the books received by defendant were bound, but it seene to be ase
guned by beth parties that the binding wae leather ovar a pasto-
voard back.
Ur, Beiland testifying for the plaintiff said that he
had been a ee book binding buelnoss for twonty-five years and was
familisr with all kinds of bindings; tint atiff leather binding is
Leather over » pastebowrd back, and thie style of binding le known
in the trade as “full leather’ binding; thet limp leather binding
is aleo knewn as full leather binding.
Michaelson testified that he had ne limp Lesther bind-
ing with him when he ealied en defendent, but did have eo pasteboard
back covered with Leather binding, whioh gan knewn @s the trade as
full leather binding, The seeretary of the phaintirye testified that
the company 4id not pessess ner furnish to Kichrelson eny samples
of limp Leather binding.
Upon this record the trial court properly held that the
leather binding over a pasteboard back met che vequirenents of the
eontract eslling for full leather binding. ‘The judgnent io there-
fore affirmed,
AFFIRMED,
Matehett and Jehneton, 77,, conour.
ateoos edt Anectouwe ot aoe fed? ia Amahae tH, .. ey
geywod fumtaeteh bun aaliekd wettwot rs “ wie hevede uesitnanadts
caigant quaht wi ones Dover ob Sead gathonrewateiy wf std bee ied “
a)
# sav “Yalbold he eed oto tous 5 bane aoe Pestle EM fate ‘spatbate
art? seve fade pinettnes oft oO bol? Lowes ee gated “waded Chee”
at dow* paw qatiiead one bev? heveronats of boterlioh enow ateed
fativitee bus Sodhseewh ea weed bide’ ao gina wt So hw SOnabtosee
oon geatsek ows Ctdtide lo aheuw dak sine "tied ‘sia Daas as "et ata of
ae fon etee wad tet sonact eat xo) ahded ot Vgione ‘of patoy?
af ornaees eens to Mitten AL Mpa de tai Me > yl besceewnget
pera vor pore Vhs wae foogeet cate ah dodude. UllaalVeosqge $t
wb of ne Oonebles eskattoh om of oree? camettasd roses Iqatsasa
on ot ad enone 1 dud ,btarod nuoe teabae toh yt hovkawet alood ot
otsse a ‘wove wesigees ear wathiane ald giwat, ab bitug aod aspooienste .
ox tad bhaw reas abese outs ‘on eantiniens: pawster AM ie Wate 08
eae baw arene orb tagtnows wot naoak aed Babee weg on at cement teaoat
ef yathurs toctsest Thae err piyothatd ‘te obedt fia sew, thinner!
wrens ah yakiote te ohyte stad haw yan’ dneoteteag oe sore Tesitned
seins rarisank wii fast yaadhatd "resdtand List! ee ehewt me i
| epakhate Tosianl Lit wa awed oa ke wh’
e k gid am heat od aailt te Azad ame dnade ds ig wena
besedadare ® vad ste tod a foabae' bob ae bellon st amate sink il
ae Y atheret ont ab oromk now do det 1wathadd wedtes f itd bye pertevae saad »
pads balrttnns ‘qubbatate wad x0 ctatotee, wee op cao nge
gehew
Le RE. RE RE Ee dO ME TREE INS Pa a
, =i eit
arena ‘a Sh gah aa Sant Ra cer tie LAER
A.4. ‘ |
Gai ey TOE i tee ete eD gh Ly. :
Deen ha ne dal aa K
328 = 31460
ae
W. C, HARULEY,
}
Appellant, }
APPTAL. FRGE RURICIPAL couRT
¥e.
i ) OF CHISAGO,
JAazzz I, S0V6E ard OFTILIA }
EQEIESE , }
Appellees, }
RE, PRESIDISG FUCTICR KestRELyY
DELIVERED @ME GPIEICN GF THE couRT.
Defendant Jeyee gave Sis nete seevred by 2 chattel
sertgage and guaranteed by fsfendant Ottilia lebinski as payment
for an autosobile purekesed fron tie “eak Zetor Sales Company.
Plaintiff Gandley claiming to ba a Helder in due course brought
suit and ween trial by « jury «a verdict was return«d fer defend-
ante and judgeent of Bil capist fcllewed, from which plaintiff
aoveals.
The defendant elsiaed that he bought the car upen
the eondition that if st 444 not prove satisfactory it eould be
returnae4, and that it 414 net preve eatisfactery ond was returned.
Yeon this issue, the fury could sroperly believe that before Joyce
Ppureheset the sutemebile he requecic4t persiasion te use it a esuple
of faye so 22 to detersine ite contition; that he vas advised that
it vas net necessary to 40 so, a8 the Pask Company etood back of
every sale it made; that Joyce requested 2 cuaranty of the ear
but was advised that no quaranty rae neceasary because the Pesky
Company Would back up ite sales, ani if the car was net in good
condition Jeyee could returns it; that Joyoe ealled the attention
of the salesuan te the clutch end was informed that that was the
Mature of the eluteh in the type of car he was buying, & Dart,
and thet euch cluteh waz peculiar tc the Dort esr and that se
Seen as Joyce got the knack of runcing « Bert he woul4 have no
ition meet oe ‘tone aah
cea - ae
rads 80. be CPSs.
os Beer
0g at wo xonetBD
: sree sede sot sas eg seek a r
ad 8 ag a8 palate ,
- sates xo by set ase to tivev 8 uh o ve int ow a
i, demote, aabn abe tab oe ia
: a hoy 2 eteseetey aan. arene Se. PIn22.38 tale sot i
<Spalabaia are ee: prenmetietne lepine gf |
Cr oitekehenmanianmestaannnted orl
Ce ee | :
iy Waa eherenne
treuble with it. por tuease recresentationsa the nete was exe.
euted by Joyee, guarantee’ by ors. iobinski, and delivered te the
Pesk. Company and the car delivered to Joyee.
When the cur head gone about a bleex and « half it
steoned and it war negersary te teow 4% te Zayee's Nome. He
ealled up the feak Company, e¢xelaine) the situation, an’ was teld
‘theta mechanie would eali an4 make the neeentary resaire. ‘The
mecharie 414 net come for several daye, but finally arrived and
trie’ te etart the car, but failed. Ths ear was tewed to the
Peak Company, where it has remained sver since, After the de-
fendant r eceived the car it was found that the sletch vas breken
and there was @ knock in the wster. The brakes were worn, the
geer enirt lecked, and there oouid be ne shifting of geare withe
eut stoppine the car, All this was reperted to the Feak Hetor
Company.
From thie and «ther evidence the jury could preperly
eonmolude that the sale was made em condition that the ear could
be returned if it wae not satisfactory, and that Jeyee had reason-
able grounde fer being Aiesatisfied with it and returned it. The
condition wren «hich the ear sag ecld having failed, the considera-
tien fer the mete alae failed, an¢ the jury properly found that
Joyce vase net Liste,
There wae alec evidence frem shiek the jury cowl
properly conclude that Sanatley, the plaintiff, (di% net receive the
mote until after defendant hat netified him thet the ear had been
returned te the Peak Company, 254 that there was se corsiteration
for the rote; but in any event, as the note was secured by @
chattel mortuage, which facet avpeared on ita face, & pur cheser
“fer value before maturity is net a holder in due course, ond euch
a note &s subject to any defenses existing between the payee and
the payer, Cook vy. Augustus, 202 ill. App. 195; Bpstein v. Ft.
Dearbern Cartage Co,, 267 111. App. 321.
~ese Gee gine oil nacidnscmewnee gees seat wt éste @: duet
out of buteviiol bam ,bineided .ogi yd beesenseeg Dadi we bode a
saa eGR oP SemN EOD tae Say Rae ymemeod sheet
12 Und » ban ADI # suode omg Sask tne 0s ons tds
ei ,emai atoeyst of $3 «ot of casemteea mee 2 eae 2%
bLof nwt Dae ,notsagtte add be nte deme sxabqsed Met ad? qu betfee
emt lexteses wehsogNs ani iem ban Shao Riuow ginesoom 4
bas bevinte thiesit tnd .eyel. soso van 302 gmeo ton BEE a .
edt af bewod Qn ted ag? feakiat ted, ee. oat tats a? beans y
ooh eda ueets “onte 298 ea cans end a2 sensi seamqnna oh
setett saw catyie eid 2am? bavet eae tt tao 9? ry os ”
eal inter ote Heist GEY stolen ont al aed 7 sae OE
atte ene Re gadrthte oa ot Kibo wanes haw” “a ices (ise 1689
Sa
eieneaey bien aah, 2d ecenbive tH dae ede mee
bites tee edt sed? anlsituas me hen sew okes ont Bash
aagmewt bad peget taiiy bas. Juvegnstokion tau aie 55°14 hewmen of
Sef oh Seatytet das vi dete tel tebtaeslS ‘gated wet shimeny ofa!
<atebloson si? sti’ waived Khor ase ahs et Keddr segt mote thmes!
iheeaiescpeivenaiizdnantandambingeainsicanpeniesteons
" pie fh neningeers” one foie aad 9 -<
oD iuey eink Ae Hole aot sone ws cna: ew Bese et oe
ss ertsed ton oth nabs each Sat tiene tedeedt
PlaintiifY aaserts that, even if the originel saker
eannot be held on the hete, the guaranter may be Held, but the
eases cited in suppart of tile pronesition are net in point,
Zhe rule in te the contrary. Failure of consideration of the
principal contrast is a good defeiee on behalf of the guarantor.
26 Gyc, wp. 1418; Paton vy. Stewart, 73 Ili. 491; Harte ¥.. Yorler,
Si Ill. Amp. 612, affirmed in 149 Z11. 992.
We eannet eay that the verdict ef the fury ie mani-
featly agsinet the eight of the evidence, It follewn therefore
that the Judexent should be affirnet.
ABV IRICED,
Watehett and Jehneton, 37., concur.
at * : at am
SaNSR OCS SaaS eet mare tere Seo as ee ee
Se ee pe. Gers Seas eee 3S 34 eee ey? ees Roe Ser
MEMES BES BEES. sees. ba a ee Pow thee 52-92 kare od
eo Se ees Se SN ae fee Sweex yt int ee SRR 5 Eta :
ae Dee SE tee BR ae rae See pee dy ane
a Sah SaaS = Ri aah we, ape ae ee P
SOS NS eA a eee ni ge ei
F Z re
rf YN
& Sages CE ORE BE eS padi ape: ust Ge ew gece
banal eee Sea PRES ( REG ce. ee ca Preset bend sealed bi sth
dinoeidiencal head mer wits a2 ee raik, éy
346 6 S1L47S
EDVaRD J. O'HARA,
Ssrelice, ‘
APPEAL FROM CXLRCUI?T COURT OF
va,
SOok Sourvy.
yen Soe ence aca” “mma Maar
COMETY OF COOK OF fH% sTaTE
oF ILLINOTS,
Appellant. ies si eae
AATA. 624
cote i time
ER. PRESIDIZG JUSTICRN MeSuRELY
BELIVEREG THE OF LEIOK OF THE Gos’.
Piaintiff filed his devisoration in aesuepeit, te
which defendant filed pieas. The case came on For trial in
Pecenber, 1924, but defendant waa not present smi the court
instructed the fury to find = verdict in Paver of pl¥intirr
for $3556, and fudgment *as ontered on the verdict. Before
the term expired a moties vac entered on behalf ef 4efandant
te vacate the Judmment aud set acide the verdict. fThie motion
was supperted by affidavits. It is eaid the trial eourt kept
this metion weter sdvireene:t for s year an¢ a half and then
denied it. Defendant apsesia.
The motien te vacate wae susported by affidavits
whieh showed that defendant was not present when the case was
ealled for trial fer the rearen thet it eas misled by an an-~
mouncement in the Law Bulletin. ithewt reeiting the cireum~
stances in ¢etail, we are of the opinion that the affidavits
ehowed a neriterious defeneas and alsc an excusable eistake on
the pert of the defendant, <bich expisined its absence then
the case was ealied for trial. in the exercise of sound diese
eretion, the trial court sheuld have allewed the sotioen te
vacate the verdict end set aside the Judguent.
Defendant, horever, etresses the point that the
declaration is fataliy defective ani tuat this may be asserted
at any time,
Plaintiff wae empleyed by the County of Cosk under
civil service, as a relief investigater, Investigating poor paopie
applying fer help. It im etste4t that the number of thease inveatis
@atere varies with the seasans; in the swamer enly ten er tyeive
are retained and in the winter the number runs ae high as ferty.
When the warm feather arrives, tcoze vot needed ere inid off by
the sivil service conzission, wig when the eeld weather eomes they
are put back on auty. Plainiiz? had been one ef theese inyestigs-
ters fer shout ten yeare, during which time he was lais eff in
the summer. in i980 he coemenced this suit for $7,000 whieh he
Glaims should have been paid te Kim during the perieds ke was laid
eff, the declaration sone net allege thai © ‘Hara performed any
services fer the County during the tine Khe warm laid eff,
A @ivision of this court had oceagion te soneider a-
similar ease in Golda vy. Seunty ef Gack, 731 Til. app. SOT, in
which very thorough fonel deration of the points presented was
given. It vas there hel’ thet, «here the eivil service empleyee
Was iaid eff smd ali moneye apgropriated ter the pesition hed been
pais te other apreintees during tne entire peried, the supleyee is
Rot entitled te racever any pertion ef hie claim, the ¢meral rule
being that, if the payment of salary or other compenaatian by the
gevernzent is made im geod faith ic an officer de fasts while he
4s stili in possession of the office, the goverment cannet be
compelied te pay a meeond time to the officer 4e jure. This is
Supperted by a large number of decided cases.
The instant declaration allegss thai the defendant
paid to othere the selary aprrepriated fer the position, hence for
the reasons stated in Golden vy. County of Cook, supra, which we
feller, Plaintiff cancet recover.
#mether fatal objection to plaintifr's desleration
tehes, decd To yraved sH¥ qd begefess sew visser” Se ARE we e
elosee teey ~xtdes Seswat thdegt teavet talfet a ae seolymes ivi oe
wtiesvnl ones? 16 tds edd tase Mahate . at tet ut =
evieet xo aed «fine seme sit sf janceees alt aoe abet .
ee ‘tte ict om hetebe ton stead ,weTites teifeer ataw otis ie a
We mean Terteow Biss ois ate tn a ‘eoleres flvie ade
anyiteowsé anes ‘Ne sae nosed bon Pikvatard Jehe® ae asad jug ote
at Tie biel wat of emis sols satu ey 998 suede = t exo :
ad dasa Bet, ate anid a iad meas <. Tee eo oatd
7
eee i Sikes Sait eo Mees as are
pe ook
ie that it dees not aseear that after he bad been lds off he efe
fers4 tc render any services or sade any attempt by mandamus or
ether 4ireet action to determine the question waether ar net
he hed been legslliy isid off. Burrie vy. Seard of Mducat
Tll. Avp. 397; Eenyor vy. City, 135 Ili. app. 827; City v. Luthardt,
191 Thi. M4; &
Plaintiff's attorney does net gainsay this, but
argueer that, se the declaration included the commen counts, one
good count ie sufficient te ayatain tre verdict. The sffidavit ef
elaim attached to plaintiff's desisratien i« fer aslary appre.
priated end 2ue from the defeniani. Thie affidavit eliminates the
eouton counts, because « verifies statement of siatntiff's chain:
must state all the fsaets nHeceenary te support plaintiff's action
and plaintiff is limited im hie ereef and reenvery to the facte
set up in his affidavit af clais. Hedjig v. iooney, 205 111.
App. 4153; Geddaré Teol Go. ¥. Crow | oa
app. 34; EKeime v. Shue, 2345 f11. App. B19.
Plaintiff argues that sleading ic tae merits is a
219 iil.
waiver to devurrable fefects, citing Pittsburg, ¢. ¢. & St. i.
Ry. Cc. ¥, Robeon, 24 113, 284. Thia ease, herever, decides that
Bieading to the merits ie «a waiver unless the declaration is ao
defective that 414 wiki net eustain the Judgment. It has been
resestediy hel4 that the fret that « declaration dees not state a
eause cf action is uet waived by filing a pica of the general is-
eue, and the point may be raised fer the firet time on appeal,
B. By ¥. Pecole, 217 ill. 164; Giliman vw. Caieage
Bys. Co., 268 fil. 305.
Pisintifr'e declaration vill net supeort the verdict,
Which is reversed and judguexnt of nil gapiat entered in this court.
RSVERSsD AbD JunoMenT OF BIL CAPLAS.
Matchett and Johnston, JJ., concur.
ae ts & ea i
Se tnatnse ys @quolis YS thax To eeoiecas yas tah get oft Bg
feu xe am, Haktaes: 982 calviateh #7. seltes ork A eed ae
fie pono .« give .Yae bhed niabeiias had pa
FRE sand. ALE SEL 4;
ee poh
as 75
as
PL nL eS Tate. on wt es
Ane ,eist one fea = eariette Herr
ee Saae
te, g@eHese saunes ae hogeisat BER IR LORS net sd vist
re og ae og sae the
te saveh tite edt .gekhosy 2n7, ite dane “ oe to Tue ot a —_
wets Yee ae. iat ai Bos fetkioah ath ak» he o sesvesae isto
eit setentutio 2 sivebitie Bast
sahete stMusalese ‘he sume iaes bet! tres a wecened setae
meites e"Tulesiete o% cei oF unten aioet ous iis eters been
Btoet eas of gaareset bee testy ein at sorbate at Unt tot Lo
’ ‘Mint ts strah IP ats <v
i eh ae ¥ Re Jao Bae
ae nak a2txan wif of aatients, saws ae ta tester
| ds $23 anisio. .Bdeetat A Baarsah 09
tants essen stevered. ,enae elit? Bf .ifT 1
of 1 bd
ee a garners its 1 ptotene toa ie. es seat ee
# saat $a. oe, meen & tae deat, ne jet Sion .
~a1 iptansy od? ei 3 gosta © galLI ye Review tm at mation Ye
tenque 0 ents ge Mo pera ys it 3 2s
ee Be < ee ter
369 - 31501
GEATRAL AND PACIVIC IMPROVES She
)
GGRPOGRATICnS , }
Appellees, }
' APPRal. PRON MUNICIPAL comer
ve.
} @F CHICAGO.
MARCUS HK, HUEESCH, }
Acpelians. )
WK, PREGICISG JUCTICH REOUASLT
DELIVERED THE GFILiOn OF THE SOmAT,
Befendast sgpeania from = Judgment against him ene
tered apen a direeted verdist fer $1532.12, upon trial ef = enit
for the eoliection ef 4 note.
april 19, 1924, defencant gave Plaintifr g1000
eanh and the note in suestion fer 515099, te seeure an allaged
eptien te surchase resl eutut>s from the oleintiff. The evidence
tends te shew that defendant, #hiie in Les Angeles, Califernia,
wae intre¢nucet te Samuel Graweern whe wae in the real estate business
in that eity, ond alee 4irester of pisintiff corseration. Grauman
showed defendant property em Hain ond 16th stireeta in Los Angeler,
and pursuant te negetiations 4efendant cave nie note, together with
his cheek fer $1600, te Graucam wid an eption eontract “se entered
inte as feliews:
"GEETHAL & FACIVIC ImPROVRURRT
CAPITAL $2,000 ,00l
123 WEST FARULRETGK STRELT
PHORE 285-735
Siresters Bireetors
R. 3. Saphael, President. H. Eooh
&. Spencer f » ist Vice iL. Goldwater
pres. G A. Milier
Jules Kauffman, 2né Vice- Joshua H. Barks
pres. oc, Rey Kekeon, Seeretary
B. J. Louis, 3ré@ Vice Pres. arthur ¥right, Atterney
: ae on am tite aude
<n athe saakoye saomibar « aaot eiesece ae wong
five = Ye fotet aoge PA ee
. _ ete ae etn See wht. $9
" goeas vuasetere aves dusbantes shSet ok fie. ado ks : ‘ie as
Bese hie: a : vee “ omg net —. a8 tea 8 tn sane :
died tana oe ai oli i hae Oa
ease Siky cH det to
Sanateed otacee tes 96h a ne wt meen ona at Dante mew oe
c. Specht
Jsecb Stern
Horris Cohn
LOS ARGELAS, GAL.
april 19, 1924
REGSIVED from &. &,. ‘mebsch ORE TROUGAER DOCLIARS
($1,060.60) im cash and a note for FIFPNEK HuRORED
DGLLARS (31860.060}) due in four (4) months’ time, as an
eption te purchase the Aertiwest corner of Fifteenth and
Kain Street sixty (450) foot front by one hundred twenty.
five (125) feot in desth, more er less. Thie eption to
be fer a period of ene hundred end twenty (120) daye.
The purehagse price ef this property to be <iGugTyeri ye
THOWBARD DOLLARS ($86,000.00).
This acteement eubjcct tc the confirmation of wr.
BR. &, Raphael, President of the Central @ Pacifie Ime
Prevenent Corseraticn.
Central an¢ Saeifie Iuyrovrement ters.
BR. 3, Haphael, Pree,
C, Rey Eeteon, Seey.
San Greumen
#,. X, Huetech,*
Defendant 4id net exercises Ale option te purchase
within the ene hundred twenty day ifimit, and this enlt fellewad
to eoileet the amewmt of the mete.
7 Befendant asrerte that the property is indefisite and
wheertain in that the ostion sgreesasnt does not shew in vhat city
and state it is leesate?, ‘The parties were negotiating Tor preperty
in iss Angeles, @aliforsia, end the gption was eigned there in
plaintiff's effice. The inatrument on ite fase reverse to oreperty
in Los Angeles, Galifernia, acd anyone weading it weuld se under-
atené. Fe held that the feseriptien ef the property is sufficiently
definite,
Ameng the eases tending te supsert eur conclusion are:
Milepercer vw. Beyer, 217 111. 962; Seber vy, Adher, 321 111. 547;
Heyes +. ©*Brien, 149 Til. 403; Evans V. Gerry, 174 111, 505.
It is eai4 thst the meswrandum foes net satisfy the
Statute of Prauda, being indefinite ant wumeertain as te the property.
Plaintiff eroperly says that this centract made in Californie muet
be governed by the Statute of Frauds, if any, of that state and
that mo such statute is either pleaded or proven, Sven tested by
corer aorret seas “gang (3ecace,
tsk He @ § 0. 900,2
ae 2° Menta Yaddnes it} tet at egh 92,504. GALLS
es te terre: fapritiss
| herrhomsd ene yd fae? fect
See a ee
yak eis Ge ce
3 BETinTOke od oF “rvencig #!
“Ete apisemniiues acts supsgetsa Bhd? 3
= aFiien & Ieufeas woe So Soci eng ionaeae = my
<e7re0 etinavercgat artisens baa Lax diteS
-abetees 2% 8
eee prone =9 wi ad
_* dlasetenhs. e7
the Tliineis Statut> of Frauds, the contract ig aufficient. Bee
Competi_v. Briiihert, 17 Til. S84; Glleperger ¥. Beyer, 17 T11.
262; Goesitt v. Hebhs, $6 Til, 251; Spangher y. Denforth, 65 11,
52; Evans v. Gerty, 174 12. 885.
The agreement wee binding en the plaintiff. 1 ese
eignea by ite prewident «84 eeeretary., Plsintify was the emer of
the property and was im « gositien tg cumvey the some at any time
upon the payment ef the purcluase price. It is net neeessary te the
validity ef an eption contract thet that there be an express agrete
ment by the evecr to 3211. 46 option contract gives one the
privilege of becesing @ Burchaser, any @ufficiet consicteratian
will make aych a contract bindixng.
“A wuilateral contrast af this kind, im which one party confers
em option woon the other, is in reality « sonditienal agresnent;:
and upon the hagsening of the contition, that is te say, when
bee — given ig deciared or the election provided fer is
the agreesen’ becomes abaclute wid the obligations ef the
sareten beesme sutusl, ({Pomerey on Centrsnte, sec. 169.)*
fxn 3. Yarnen. 176 13, 426,
The somtract vac exeeuted by the president and secrete
tary of the plaintiff scorseration, and in Betartney +. Clover Valley
Lena & Stoek Ce., 235 Pet. S97, it was hel4 that the seetion ef the
Galifernia Code requiring an agent's sutherity te execute a cone
tract to be in writing, 4c*e net spply te the exeeutive afficers ef
& eorseration. :
By Gee. 2510 of the California Cede it ie held that
Patification ean be made by « ecorperstion by accepting er retaining
the benefit of the set. Fisintisf reesived and kept the $1000 and
the sete in question. In Domest!
Til. 22%, it was held that by aeceptiing the cash deposite the
building asseciation rvetified the action of its officers.
Sose point is attempted beeauce the name of Gam
Grauman is siged te the entier esrtract, but we ¢o ret eee that
fan Vat sed RTE wat os eer
of sate oct
ost of cuantwena. dome? 43 | :
oS6 IQS aaetgrs see ot areds pa seus doandiase q
oid sue sevtn faeztaes mpleqo oe i eee ae |
aolisrehtenes gmvkstttes ys -tasessteg # yahososd te egeliving
ix ssatialt Soenecoe © dawe siom ithe
sretney Xitag 920 sigtoy ok bubs © hid ‘te smwtdaes Lomete ita 4° |
) Yssaes Ch ek yt MES poy: ae
aoe Seu ‘
e009 * ateoene oe ehveatue of tasze ane anteiupee ane : :
4, pre : £
: bs estore evisuoone ce of toe tom ase8 reais cee a :
sill, Set 8 8 cine atenntaen ott v0 08, ee Berson |
: =" = “a See s
thie weuldéd Save an important bearing ote way or another. It eere
tainly would not inralidate the agressent.
The mete previdead fer the payment of 31506 with ine
terest anS ten per cent af the principal ae attorneys’ faeg. The
mzegunt of the judgwent dooce net seem te be sericuely questioned,
The ebiectiens te the walidity ef the oetien cent ract
are net @wabetential, snd upon the evidenee the trial court was
Suetified im inatrusting the dary te fina for the plaintiff,
The futement is affirmed,
AFYIAEED,
Hatehett and Johnston, J3., coneur,
woSEY
Siete
pie. ees sce sey aticee” | Brel 8 Se At
ree ee a Soe ee ee ee.
&
ee sean ad Pete ge tae"
wea ts mensenn aa? eee * cut wee oh * oe
oy a ae SN
se i we si ae ere st ee tis vals ‘i scan aspen oe
ea | apes ox nna aes ae Er fae Eee Re: s¥
tea hae vail BE adhd ummaeieei at Sil GE TEM gtetenl &
Ae)
Mea a
ae a + one ee smteaoge at we shes ad is ~—
| a oe ets. hae re ites eae s od ek
P as a we ee
FPF Sev zy, ‘, wa, ie eh
Ls = ae ~ a i ie 7 4 b . "
le b anioete 3
387 = Si8ls
HICK PETROPOULGS, }
Agpelles, }
} APPEAL FROM BUNICIPAL count
VSe
: ; OF cHIoAGe,
THEODORE KARATZIAPERIS,
appellant. ;
244 1 eo2at
w ee ollie UW ta &
BR, PHESIGIEG IVUSTICN KMescne_y
BELIVEREDS THE OPIRIGE OF THE COURT.
Plaintit?, the lesser, brought suit againet the
lessee for rent under « written iease. A jury gave hie a verdict
for 21296, stid from the jJudgrent of this amount defendant appeals.
The leses was for a tere beginning Bay 1, 1920, amd
ending April 3, 1925, at $100 a wenth, Oefendant cocupied the
precises but vacated the leased storercom thereef im April, i924.
This suit is fer rental fer the balance of the term,
: Befendant slaime that by « separate deouwsent oleintiff
agresé te revair the water vipes, gas pipes, doors and windows
wherever such repaire are needed, aud the testimony wae concerned
with the fact ¢f these repsire, the defendemt aseerting that the
plsintiff hea net made them and the plaintiff introducing teetixeny
tending to shor that Ke hed eomplie? with his undertazing in this
ressect, There was some comfliet in the evidence, but we sre not
pretares te say that the conclusion of the jury that pleintiff hed
wade the repairs which he had sgre-d to woke if manifestly against
the greater weight of the evidence,
Defendant sise claimed that there was « surrender of
the presises and on seceptance theresf by the lenaierd. This sine
wae a question of faet for the juty to detersine, and we cannet sold
that the verdict in thie respect +as not justified.
it is eeaigned ap error (hat the court i=preperly
emulate Bae swe vasa oe eet le cota aay
haatecane ae gia 82 asia hue ababas x ots @iieget seas
ods y st setae joa, eats ‘alae ontt wes os
se ab satundeota eke aitte at tqmen fact od tats — _— a
: cata Vali Sh inn oF meg Sa ei oni a ebes
eee ee ee y
i Teomeraws a caw weeny ted Neutate oss + taencotac pee a ns :
restricted defendant's eross-exsmination with reference te the
thirteenth prevision of the lease. ‘this was a provision that, in
the eonnt the buliding was condemned by the City, the landlord
Would not be subjecte’ to any dmeszget io the tenant. As there is
mo evidence that the presises were condemed, fre do nat think the
question relating to this provision wae impertant,
The verdict wae based upom the rental of 3200 a sonth
for twelve months, fefendant was entitied te eertein eredits,
The lease shees that the éeferntant siade @ A4enoeit with his lara.
lors ef $600 fer the purrors of being applied “by the serty of
the first part (the lan‘lord) upon any dasage sustained® by him by
Fearon of any default ef the tenant. ‘There is no evitence of any
demages except the rental. ‘The Jury showld have civan defendant
eredit fer thie angunt.
There is sleo in evidence that plaintiff alter defende
ant vacated the premises leased a portion of same fer $20 & month,
and defendant's attorney asserts that he is «ntitied te a eredit of
$240. Plaintiff's ceunsel doce not eantrovert this,
The verdict is therefore tea large by 3740. if plaine
tiff will file a remittitur ef $746 in thie court within ten days
from the date of the filing ef this opinion, the judgment will be
affirsed for $496; otherwise the jud-ment will be reversed and the
cause remanded,
AFPFIREED UPOH REMITTITIM OF $740;
OTHSRVISE REVURGED AED RSMANDED,
Eatehett an4 Jehnaten, 77., cencer.
git 02 eunetstet dilv avigeniacassewo se
, tedd sears &: aay aict seat oad. te
ae
ag eit ms pees as Pe eanenab eu of tndestom 0 >
ad? init? teu 96 8% vibanicks em seaiueng nal id 20-50)
etaadvoqel sae agseivera whet e- % deatex ae
item SSS Yo fatowt act wbeu beaed sew ta feeey ont.
.eoithete aiedise of Badiiowe cee tantow tel. atin
te wise ons o We iLogs aniad e scnetug edt ast oone tw!
ist Rd Seal aren ogeaws eas osu isqodhe
Re Seaete ; ’ hes ie ‘aie
tect asta te a
i bas
<atein uw Oe ow wana ad exotersst ‘ai ésimey
Mamie ss Ue ES oR? spi ae
axes we: + alse iw txw00 abs a ai te saiisdhed 3 a
Beer see 4
wai ed ce dues hut, et
|B cscses Ses iiger ay
Geran hee wey Ry
er ae ee ERB E: REE Ramee Se eieee. Stabe sus Sas
Pies seRlnwe & ay Be Seep see SAS Sets ah Die pa Sepa eng e
ewe: Jen ae Rey PRE pe Wye Bey E SOR Be mek seney & ne
OL Roh, ea ae eed al od at Pa inet salt ay ria
@ianoeness : essen Sait deake al “Ri Reninse. ed oe
19 = 30657
GEORGE GLELOG, }
Defendant in irror, } ERROR TO SUPARIOR couRT,
Ve COOK COUNTY.
VASILIOS GLEZOS,
Plaintiff in orror. ¢> , A Po pw!
eS £K : Si ~~
Rete ket QD
WRe JUSTICR JOHNSTON DEALIVERSD THA OPINION OF THE COURT,
This is a writ of error prosecuted by Vesilios Glesos,
the defendant, from a judgment in the Superier court of Cook
county, in favor of George Glezos, the sleintiff. n appeal in
this case also was proseonted te thic court by the defendant.
In the appeal, Ho. 27934 mot reported in full (250 Ills Appe
647), we reversed the judgment and remonded the cause. After
@ csreful review of the evidence we held in an opinion written
by tr. Justice Meturely, tht the evidence showed convincingly
that the olnim of the plaintiff had been compromised and settled
by a written stipulstion, which was filed in « former eetion
between the parties in the Municipal court ef the “ity of
Chicago. The written etipulation was intreduced in evidence
in the case ot bar and showed that the plaintiff hea signed it
by his mark. The stipulation is a» feliows:
“tete of Illinois
County of Ceok
ae
Im the “unicipal Court of Chi¢ago-
George Glesos
VB»
Vesilios Gleses
STIPULATICN.
Ae It if hereby stipuleted and agreed by and
between the parties hereto that the ebeve entitled
Bos 212, 723.
soo sonsarrse or aoc |
“ETEMOD 3000
ug 5 ‘hi
@s 9 LI EES “soonest mata esteeie
ene :
| hee tl
Rigo st WO eoneree mar suave woreAnt aORTeUt +i
pest Le
saGnet® wits adil net Show 8 Ob wbAiBoo: ant. i
Me
| hao oh ANG es LonsMEO vynese 20 saben at ysane
| ctunitaes0d se WS Yue0 obKd oF Seswooning ae bao Saat |
“eames 14d OBA) 5 mi bod Te od ,
teats soramee eile dodciomas tue canes, ead” nedae al
“sie sale on. lato bin tt 5 Ses a
“ easihouthymes nomosa onadrve vat ould yvlomvall oe lek
$2 CE Gare ike
‘patevns oe faery coer a Soest an Ste
ie Sopa if & We bigs
motion weme? 0 ah ALE caw sod moi tadua bea me
to wee ats Yo save fagtntqed oad a4 aateung,
Pee We ove , wok
ore, beouborsmk wor wobinkisy hie aodster bo. sie i,
bare te Tate at asta weostn oma wad én nae
%
s
irc wey somededotauagenide
- pis *)
eause be and the sume is hereby dismissed without
eoate, all mattere in controversy between the
parties to said cause having this day been fully
compromised and adjusted by the execution and
delivery by eadd cefendant to eeid plaintiff of his,
anid defendant's promissery note for one thousand
aollars, payable five years after date, with interest f
at six per cent per annum, paysblie semi-annually both |
principal and interest secured by deed of truest on
real estate in Cock County, illimeia.
Dated Chicago, May 7, 19138.
His
George A Glesos
Mark
Plaintiff
Vag¢ilius Gleses,
Defendunt.s
itedman ond Soelke, Attorneys for Plaintiff,
MeInerney & Powers, ‘ttornoyse for Vefendant.*
Om the present trial the plaintiff testified that he
@id not omke his mark; thet Ke known how to write; thet he did
not know the contents of the stisulation end that the stipulation
Wage never reed or explnined to him.
The evidence om thie writ of orrer is substantially
the same ae on the former appeal, with the exeeption that an
additional witnese in the present casé/on behalf ef the defend<-
ant in regard to the compromize anc settlement of the action
in the Municipal court. The additionsi witness, John P. Power,
was the attorney for the defendant in the aetion in the Municipal
Court. VPewer tectified that “he waw the plaintiff make his
mark on the atipuletions amd thet he olse saw the defendant sign
the stipulation.
. Fe gee no reason to change our opinion expressed on
the appeal. Om the contravy the additional tentimony of Yvower
strengthens our conclusion that the claim ef the plaintiff was
compromised and settled im the former action in the Municipal
Court. "
Yor the reasons stated the judgment is reversed ond the
Cause remanded, REVERSED AMD KEMAWLDe
Mesurely, P. Jo» and Metohett, J., concurs
tuned be seme daue.t yoxwed Of ams ots be od we
os Seewrred Yrievectaoe of anotdnm Ihe .ate
qitut mood yh girls re ghia blag oo &®.
here Holigenke ats yd petettps bee beak
es Bei _ ie debate Se oo tna f ro ww
geet aes eden cieeatae Ste kos
; i fe Bis
ge tearre te Seek xe js Rpg tue ait nly
setenmiiil ,yeawe? teed ak
eB LOL a P yal segoe dda: b
aif
soul) xX geet |
ttivnlelt
apnoret® Sn ad
yyaaidiert 10 was met sialte@s dove Hoty
"qs mmbety “78. stm Ph 4 ane
ad teats | nar thsees ‘vhdaMtaby ane Sates “engenng| ete 0 er
scx ast anda pediaw e weak nero on tant rire “eld 6 ‘e oxen dom ‘the
wotdakuyste ede tad? oe ao rsatugtés ets “a etanane ad a iia
Tews ADise S PE ‘paws ey ‘
i eval oan
ett of heatalexo ve . boon tevin saw ‘
‘ Ulataned ven a tox xe 3% ats eked ma it ar _ ae
i es tase so Ltqsone end datw sbeogae xearvot odd me
“ hawtee add Xo nae f BeQpea0 tayaang eas at susie
‘andees ah To teimosisin’ ‘hae emlaeonguine ostd od
etewo 6 cabot seeentie Lowe 28900 owt sobs setae ol flat
fegte baat ouid mt aotvos sis wt sedasts’ ‘add sok qoare ee :
altel atom Peismbaty ote wor wt asta, Res inad cowel “loebeD :
mgie stnduered vid wan sala ot sods bas ‘taehseloniet oi i he
goat Ba %:
Ayo sir
is usd ianei ainicaiag ane 2 al
rows ‘ko YMomtt ead Laupltthne eit “goonsene ale Bib tame ots
SAN, TENE MRD a oS one ia ll is a
td hen tania a
A ae aR
f; ; Y sat i ts
- aah ie Th
ty ty is ae NUAEIN RY
i rey
R6 « 30812
MARIS .
Defentant te Brrer,
“ BRROK TG SUPZNXOR COURT
ee |
|
} oF cook couNTY.
CHEGaG@ TITLE & tHusT company, | ee ONeeen
.
Adwinietrater et
the Estate of Ren a
Peceased.
BatLY SPICKA,
; Pisintily in Arrer,
ES S
fi A K fe GY far ~ \
Lae. 4 ~~ ee is
ae) Dnt ae erticee ar a 9)
edhe,
BH, SUSTIGH JORWNTOR DELIVERED THX OPINION OF THR coURT,
Taie ie a writ ef errer prescouted by Emily Snieka,
one of the defondanta, to raview a dosres aonfiretug the Lneter's
report in fever ef karie Straka, the cemplainwt, in « anit brought
by the complaivant againet the Chienage Title ond Yrust Company, ade
wminietrator ef the antate of Robert Fatyet+, Beiiy Spieka, ond
others, te eovpel the epecifie serfaermance of an wLiegad contract
betwoen the complainant and Fatveta in shies, according to the
aversentes of the couplainunt, Batyata agreed to give to the come
Plainent all of hie property, either at the time of hie death or
befcre his death, The defendant, Suiiy Gpieka, wae a vister of
Batysta. ,
tno srineipel comtentiorse? the defendant, Bmily
Syicks, are (1) that “the claim of the complainant i» barred against
inventeriea sexete by virtue of hex Failure to Pile her bLlL until
more then one your alter the grant of Letters of administration; ©
and (2) that “the existence of the alleged contract has not been
proveé «ith that certainty reeuired in onees of thin character, *
There in very little diepute ss to the material facte,
Mm outline of the evidence to, in wubetanee, that the
complainant is a naturel daughter of Hotyata, snd vas born in
Austriaeliungary on Septenber 23, 1404; thet st the time ef her bisth
Batysta wae « citizen ef Austria-Hungary; taet one year after her
birth Fatyeta cane to the United States, Located in the eity ef
Chicage end engaged in bueiness; that the complainant remained in
AustriasGungary with her grandeether; that in the early part of
the year 10912 Batyeta went inte business with « Mire, dmoa faaue,
who testified in the cuse wader the mene of Amma Aynes; that she
Lived with him ae hie housekeeper; that about this time Ratysta
was anxious for the compisinant, whe was 17 yearn of age, to come
te Chicage and live with him; teat ot firet she refused te come;
that he wrote to her agking her to come, and told her that he was
going to leave her ali of hie property after his death; that he
gent her a steamship ticket and money te cover her oxpensesg that
she enme te Chieags oad lived for « time with Katyeta; that ahe
Left Satysta'’s howe ond worked ae 4 maid servant, giving as her
reason for leaving that her father's housekwerer wae very mean to
her; that while she wae semloyed as « weld servant Ratysta visited
her, on¢4 their relations were plasegant; thet en Kevesber 15, 191¢,
Batysta was adjuiged imeane, oid that en Secexbor 2, 191°, he died;
that in the early part of Mevexber, 1019, before he was a¢ judged
ingane, he consulted an attorney in regard te his affaires; that he
told the attorney that Ae was Living with a women to whom he waa
not married; that Patysta asked the attorney to prepare a will for
him bequeathing hie property te this woman, but afterwards decided
mot to wake # will; that on November 5, 1919, the aticrney vent to
eee Batysta, wro wae ther in « hospital, ond that Batyeta said te
the attorney, “I want this oreperty we own together te go to Era,
Hanus, and you draw up some kind of a paper so that I will sign
4%, amd ahe will heve it in her posseneion in ease something hap
pene to me before thie deal ts clowedy™ that the attorney prepared
the follewing document, which Patyeta signed:
head eas gy y oye that Rebert Batyata ond Anna Kanus
are in parteerahip, an joint tenants, and have bean for the past
nuwber of years, sack contributing hie or her services to the
A is Me
Se Ra eH
te wth? ent af veswcod qmatads hea sat e@ aae atexted aenke
ak oentenet tacwloiguos ext fee) - salnisial wd Nanna 89 am ay
to Pag oe wat at Gade sealegeieng ans ot de yey * ns a.
cin ain Larch wearin one Seow wtuytad eat may ont
sia fact cuoayls aaah Lo wan net sabi an mit mE ho Fi Tiled gabe
eteytol seks whit twos Fats “shawl thd we whet a sy | avid
Shon of WHA he Hiboy TK aew ete oboe ss Serer ‘nt a amas om
pomes ad Beaeter Gite dunt de pant parka adie geht box eueota of
ene nit tana wa Lae tele viisine of hak ithe sean nso it tay
"at gat ttineh ale wea! wesogwen att No He He come o en : oF
er yesnae ae wat xaoo of decid Sete. facie kd ahd 4
eile tas janariwt sie, auly Siu paw tem pare’ api
Jeint tenancy partnership a4 sharing equcliy in the frauite
thereef; that is, each io entitle? te oneehalf of the property,
real or personel, smd upon the denth or ineapauity of the one
or the other 21} the property akall become the sele preperty of
the surviver te held ae hin or heres forever, I now give to
Anne Manue ali the my oreperty aituated im douth Yout State Bank,
Slat & Ashlinnd, Chiengo, ad deliver te her the keys te the sane;
and all my other vroperty i gituated,
Mebert Batyets (G4
Fitnesses: Fae Seana
Leom Andel ( Signed}
Vaclav Keuteeky (Signed,)*
the avidenee further shows that Batyata did net give
the complainant any of hin property befere bine death, amd thet he
died witheut making a will; that at the tiae of Bie death Batyeta
left personal preperty of the value of approximately $22,000.
The cantention of eguneel fer the defendant, Bmily
Spicka, tant the failure of the semplainant to file her bill for
epeolfiec performance witil more than one year aftexy the grant of
Letters of administration, cara ker right te the inventoried estate
of Batysta, te beend on Seotion 7), “Mapter 3 of the Tilineis
Statutes relating te the Administration of Seintes, The vertinent
part of section 76 is as follows:
“All demande against the estate of sony tesiater er intestate
ehali be divided inte alasves in the manner foliowing, toewlt:***
Sixth, All other debts and dewands of whatever kind without re-
gard to quality er dignity whieh shell be exhibited to the court
within one year from the granting eof Lettere aa aforesaid, and
all demands not exhibited within ons yoor ow sforeanid shall be
forever barred unleas the oreditors skal) find other estate of
the 4eceaned net inventoried or acoowmted Tor by the exocuter or
aduinietrater. *
Counee) for the defendant, Buily Spicka, maintains thet
the euit of the complainunt is a debt or demand ageinat the estate of
Satyeta within the meaning of paragraph 6 of segtion 70.
In our opinion the suit of the compleinsnt does net
constitute « debt or deaand against Batysta's evtate. The complaine
ant is net proeeeding on the theory that she has «a dedt or demand
that should be paid out of the estate. The scope and purpose of the
oomplainantts B121 ix te resever the entire setate. She te not
SS ual te a Me
te on Ny else ot we by as
ot wren wor Ty oi eevee
Ramet wrath Rook aan et od Sate: ie
ike tare’ wt ot Sasa set 4 ae Taare au
ot ones ‘pine pen «ls ated cae gO eke 1% we - mh Ae
aitexted ASawd obs %e aside wet bcs Haves ie ow aatsen ase J te
| eda Beg eErtenteos ie te owas ant “We eiwogeey ka .
etbes ptaad.na'emd mith 29% Paco 6 aekrenitans ont ‘ ia a wae
wet eis mot ectt e Semis Sean wale ta’ etude? oat sa ail qe
Ro Pemey, out waite tas emo ad? one eto sscsinvtasg atts
etaton beknornarih eat 09 Frnt ta Geet 1b idee Lesbo ® pied
_ stentist ott Yo F motel oF selsvet, me vane 9}, s |
nt
P ; ~ ah oo.
ta
on MR Hea aR
asking the court se & claimant against the estate te allew a debt
OF deoand aguinut the estate, She le invoking the ald ef a sourt
of equity te obtain the entire estate, wien she sliegas ehe is
entitied te by virtue of « contract. Ghe is not claiming that she
has o debt or dewand for « epecifia amount sagainet the setate, the
ie severting a right of ownership to the entire estate iteeif, The
Felationesip exiating between the estate wid the complainant is not
merely the strict relationship ef debter od eraditer, It te a
Telationsnip based on equitable principles growing out of the ale
ieged contract between the coupiscinent end Satysta. From the
views that we have expreased, it follows that the right of actlien °
of the compl eiaant reseonatiy sheuld net be tersed a debt or denond
Within the meaning of paragraph @ of section 76,
The genclusion that we have reached is supported by
the follewing anslogous onses: Evens vy, Moore, 247 ILi, 60; Giliett
Me MiekLing, 16 221. Avy. 392; les vy. Siison, 37 Cele. 246,
Counsel fer the defeniant, Emily Seiecka, relies om the
feliewing cases: nd Co., 184 Ti. 220; Morge v,
Basific Ky. So,, 191 t11. 5846; Balee v. Hedland, 92 Ill. 494; Borage
¥. Gidrette, 9S Lil, apo. 24; and Batata ag, 236 Lil.
Ape. 168. Wo do not think these vases are in peint. itn none of
them was there any claiu of ownership of the stire estate. The
tight of action im ali of thes proceeded on the theory of a claim
againat the estate and payable out of the evtate, In all of them
only the strict relationshic ef debior ond ereditor existed between
the ectate end the claimant, ond ne equitable rights such as are
shown in the ease at bar were imvoived.
In considering the contention of cownsel for the de-
fendant, Bally Gieka, that the contrast has not been clearly and
wnequivocaliy proved, it will be necessary te state the evidence tn
detail, as each enne of specific performance must be determined
wae eae nites! #08 nt eat tensinee ‘te ohoete ge * gat |
ot odcter BAP Senteys Yrrone WE itoee: «tot been to Re neal
edt .Uieat) oderss ertiay wis oe qtse taste: . Ee sntiecte at
ton ak taemialauty wai ie otoies ost qonwded, ‘yeteo bes isnnobtn _
WAL GL cap lbete fine chase te alimentos tele se tena
wha asd to dae paiwemy Releivatrn nies hip es sone bisa :
| ond wer’, ebaGes®. Press dieeide sow oils mpweted ee ) ; a
" wettem Ye seyde exit tows wwutie tk ,buaeenoe veut wo + tat jos :
bance uo deb « et ag ton byes: oe wel
aie 06s 98 _ i
ane 18 a cat 8
Largely on ite om sproial faates, giae, 838 Lil. 424,
431,
The sentrast on which the auit of the sonpiwinant ia
baned was net a formal written decummt, I6 was partly written ond
partiy oral, The written part ef the contrast consisted of a lete
ter frem Datysta te the gemelainent, The letter was not produced,
The only direet evidunee of the existence of the letter ie the tage
timeny ef two vitneases for the complainant « Vincent 7. Klaus and
Sarie Orahwnkebil. However, there ara foots and cireweteances in
evidenee which tend te correborate taeir teatiweny: amd there is ne
evidenes whieh direetiy eontradici« thelr teetinony,
Vingent J. Alaus teatified on behalf ef the eomplainant
tast he war engaged tn the eteamahip business, feraign exchunge
ond Tire insurances business at 45th and Ada streete; that by the
steaietip business he meant that when a mani wanted te come te this
country from Zureps ke, Alans, arrenged for the pasenge acrose the
egeam and for railroad tiekets for the commecting company; that he
wan well acquainted vith Eutyeta; that he hed known him for about 1%
yeers; thet he was net related te Batysta and hed no intereet, peeu-
eiary or otherwise, im tuia auit; that DSatyeta had = meat market
Just on the next sermer te Hin, snd vas in business there about & or
40 years; that ™~aus wae in hia, Flaws’, piace several times a day;
that he telket te/aue, shout his fasily affaire; that he sald he hed
enildren om the-other side; thet he talked about the complainant at
least six times; that on one occasion his, Klaus’, eistereinelew,
Marie Urshenkebil, was present; that at that time Batysta said that
he wanted te send 950 for traveling expenses for hie daughter; that
befere that he had bought steanchip tickete; that Batysta seid that
she 41d not sanewer hie letter; that “she was funny;* that he, Elaue,
eaid, "Wait wotil she anewers;* thet Batyste said, "He, I write her o |
letter; hore it is, Give me $50 and gend 1t te Burope and you can
Alt fKk EH smite at Answig, a Gn, Ladee ey ey bid,
ab, tupttn iggne, nad, Te ddun oh, Ro.kibn mp tuantnen, oa ange
ae sadphae eexey vow FL staminged sotpiee Lowe # tout aw
ohet # We beds Lames, Toa sda aatt Se aha sete har aah, sa ie oa
neh I Ian A xa
shooubatg toa anv wrtek ant , tees hase walt, at
fh memereien tn. sha. in. eH LS 4 nell ah sens
wanktnnd, chess scexotoense of hel Mp4 = . mhhvo
= ae ahi ts ara we
" a 7” |
took over 1t;° that he, Kiaus, looked at the letter ond sata, "F
think that she come;" that this wae im May about 1) or 11 years
age; that Satyste said te him, “Here is the address," ond gave him
the money te send to her for traveling exenses and tela hin te
look over the letter; that Satysta had previously waid that he had
® daughter in the old cowntry and that he would Like te have her
here but that she 414 net answer hie lettere; that he said that
if she was here she cowld stay by Him and that after his death
he “would leave sli the property to her;" that Batyeta said, “Hew,
I think thie Letter brought her wo here quicker because I erote
here I got mebedy here in this ecuntry, only she be the only one
whe le going te get ali my money, my property after I am dead;*
that Paytete aiowet him the letter; that he, ELaus, reed the Lete
ter and aaid, “I think she will eeme;* that he gave Satyate a five
eent stamp; that Batysta put it om the letter and put the letter in
the box; that he, Biaus, went with Batyeta to the door snd saw hin
mail the letter; that the mail boa was right on the corner; that on
one secasion when Batysta wae going to Califernia he some te his,
Kleus', effiee and said, “Here de G6060; i on going to make a trip;
in cuee comething hayyened to me 1 don't want te lese the money, 1
get enough for my traveling expenses. Incase seme accident hap-
pens to me cive the $6000 te my daughter,” that the complainant
had at that time left Batyeta'ts home and wae working ae o maid in
hie, Eiauws’, fauily; that he, Zlaun, said, “I want to onli her;*
that Batysta eaid, “Wo, thet iv «11 right. When 1 come back I want
te take the money for my buvineas;" that Batysta stayed in Galle
fornia 4 or { weeks and that when he oame back he, Bleaus, gave him
back the $6,006; that Satyeta woul4 come to hia, Kiavet, heuse and
ask, “How ia sy dnughter;" that he, Klaus, saw Matysta kies his
daughter; that the complainant told him, Klaus, that the reason
that she left Batysta's home wae thet iirs, snus, datysta's house-
a pine hw shade On? #0 Bhinat stoaen ae pede “9h vere: too! oe
sueaia © Speer std aids”
ee ee oe |
ait wre, baa *aalbtbhe wait t+ seilt std of Dhow mioueaX saat tae
- ie bat heed bute anus Lor ened sida al ot oma iw Paro
‘‘pbeew f daveund nso dp ween oy wee! conwand wudenk eine sah ; 1
hs RS eee oa: fi
—_ vine oof nat ‘eda gino tdeven aha at seve sehestone tam i
Ws phe ae T sere etaogeiy we a jupoaber 9" 3
| ate bd news geet aid Santo prodded aah she sowara aye
welt tee fice 8H 2b) * jonny io wits ant 2 bie am
sh sporangetoneyssieetle abonshpmeremoet sy |
aol ina plelisadl iis "pene iy vineoevaal ele 400d sy pre syti ,
keeper, was mean te her; that then the compleinant cane te Chi cage
from Austria-liugary, Batystea told him, "Kine donghter ia herey*
that he, Eleus, talked With Satyeta about hile property beth before
end after the complainant came, sad that Batysta would say, "Whate
ever I got, I don't want myself teo much, I got no children,
whatever i ieave is for my daughter;" that at the time Batysta
sent for hie daughter, Batyeia told him that he was werth con}
siderable property; that Setyete hud » farm and thet he was making
$26 te $36 a day in hie business; that he had two clerks,
kavie Oreahankebil testified en behalf of the complains
ant that she waa not related tg the complainant, ond waa net in+
terested in any way im the owit; that she is the sisterein-law of
Klaue and Lives is the seme building in which Kieue Lived; that she
knew Satysta for about eeven yearsson’ saw him nearly avery day;
that she rexesbers hearing « conversation in March or april, 1912,
oF 1913, between Datyeta and Kisue in Kiana’ ploee of business in
Yegar’ to batyeta’s sending money te the o14 country; that Batystes
came there with a letter; that he enld that he had sent traneporta-
tien for hie dewghter but that she waa not coming; that he aaid that
he wes oll upeet because she was net @oming when he hed paid trens-
portation for her: that he was now sending a latter asking her to
come and thet when she should come that he wili give her every+
thing that he owne; that she did not see the contents of the letter;
that Batysta did net show it to her or offer te show it to her; that
he showed it to Alaa; that she saw Batysta put a stamp on the let-
ter and seal the letter; that she was present when Batyeta gave Klaus
$6000 before Batysta went to California; that Batyeta said, "Well,
Eleud I om going away, 1 have a daughter here, se I wili leave
$6000 for her, if anything happened te me give the money to her,
Should nothing happen i wili take the money back again;” that she,
the witness, said, “Don't give the money to Dr, Klaus, give it to
a
gape LOR wt soma taenth damien att motte wmtt pas of nant ew |
* raed wt tedriguet. seth stabs pitat sete dak exegeurfinateteark wee
neotnd dot qoundeny etd wads ateeted waite nd nt seve yet fad oe
«tne yi: Ahuew ategted text sam jeaine seo ate deme cl ool tN
tet Dee ot fom, A ee owt hima dina # ecw y tog Tam a |
atayse® ‘ee watt ta fasts * yamecguiet ge tet ek svank © torr wa
eee Aieom, ous ad Want wih Bdod aieghad cevtaes i a :
gakian sem oe wwe aan: ao om saion Sasits Shenstone “e - oo
wats canoe, al Ba si pate Lisedinet arta
pies Coat ehhahk ilk nies binglaetink dice tana ohh bh Aan ae
SHE08 AI2QA 20 seran baat iawn 6 aazasd wxsdannt wile tite oe
mh anqnlaud Ye stase ‘ane ct yaddh han oteutes anowtes (ENOL
asayia tect (ewlaares Ao ony 92 wen gation waserta nw
east hane fad a dante bah cd raved «ashe Oe ae
Sete tn te we ok
reoaged pat 90 Rémotnen, ot one Soe DLE ose dade: SB)
dott jamie ot 22 moda od wee x9 eM of #2 wose fon bth ateytal
etek Ott 0, quate tug wdeeaet aM nds dant jaNOX of #2 ROwE
sabia matenniaandbunanenahunians ieotes eat nil '
her. You are without any other;* thet latysta wald that in amerion
it in net customary te give children anytoing untid after death,
Lydia Keoseka tentified on behalf of the complainant
that ehe knew Batyete; that che hud a daughter shout twelve years
old and batysta used to say that he had a daughter about that age;
that she wae in Caecho-lovakia and that he would bring her here
and that if she wowld some everything would be here; that his
property was going to be here; that after she came Datysta told
the witnese that she was hie dewghter; that she heard her call
Batystea "Pa," On crose-exemination the vitnoas wae seked this
question: “And didn't he alse tell you that he wanted her te
come here to Coleage eo an to do housework?’ The witnese anewored,
"Ko, he ditdn't say that, he said he wowld bring her here ao that
sinee he 4i4n't have her when ehe was young he could have hey in
later years for hia joy.*
Louise Keseka testified an benwif ef the complainant
that she wae the daughter of Lydia Kosaka; that Katysta's place of
businese was ricit across the alley from ner father's; that she
saw Latysta nearly avery day willie her father was in duginese there;
that she heard Batysta tell her mother that he had a daughter in
Burope and that he was going te bring her hore; that ofterwards
he shoved ue some bille and esid he hed went Yor her and that
eveyyhhing would be here; that after ehe came Latysta introduced
her as the davgster he sent to Burope for; that she, the witness,
hearé her eall Patyste father; that during the aix or seven weeks
that che was living with him Batysta elwaye gaid that he was coing
te give her hie property.
On behalf of the defendants, Anna Hynes (also referred
to ae Anos Hanus) testified that from March 12, 192%, to December 2,
1919, she was the housekeeper and business partner of Katyeta; that
the complainant came to Chicago from the old eountry in June or
=
waives sah wuscid bine sipyiae Jai yen ose AOS wom aE
tH wos be. ree) gas hg st fete, ate ar ee toms yl
anata tases elt, Be heated ge bauadenns atone engl HVE
axeme Oriamd, Quote tndcasnd a dest up Maul papaeeee, wom on 9 ‘
{soa Jedd deady “MERGUAL a bat OS Lede OR OF Deew a gait baw
oan toe poked Idwwy oa cae bite aiiewebieaisend af oar OMe
fuk dadt paved of tntiwe gate vcore eioe btgow ad ah at | &
Died wieytell suns ony tote Sood yased of oP gation sow yoeeqen
Eno, inc Brkt, onsit sateen abe say mie gnat sage oat
“$0 Od Madmen ph 106) ee, Lien wae 0 rene ae? inottvenp
boven hicahiadill watt * Pate cmertnaroet o ad oe O8 gel of wes 4 neo
tect ou ered mA gabey Ainew ost b2ke ail yet we “ath oil -“
Casi bkioe sh gear, aw ee waste uodl wwaat Oath A gente
voce att 30 a
" faantatgne ots te tkaried 3 ao hodtneaed adpecit oe lipd — ;
_ te wade areata saith b weieast atid ce + rel heats
Wik Gee x
7 Es 2 on
|p oo an sae a a
July, 1912; that Batyeta sent her o stesunkip ticket; that when she
firet came te Cnleags she Lived at the home of Batysta; thet che
was there only a fer days and then left because of «a quarrel that
ehe hed with Batyste about doing housework; that she returned tre
er three monthe later, stoyed only six weeks ond left again, when
he, the vitnese, aeked her te wash some clothes,
frank Pich, * wituese on behalf of the 4efenterte,
testified that he wae working for Katyeta when the somplatmant
game to Ghicage; that she ease to Batyata’s houve fren the depot;
that he foes not know hor long she stayed: that before she came
Batyeta told his that he vas going to pay bie daughter's way from
the eld seuntry; but taat he “did want to pay the money ond she
Bhoul? come gouty" that that wae ali he gald; that “then Ae say
he received a letter she isa eombngs* that "the mail gen came and
gave him a letter an¢ he opened it snd eaid, "Here ie a letter from
the girl, whe ie eoming.' ‘That f# 211;" that when she came be sald
he was glad that she wae here: that he eadd that she was tired
after the trip; that «ne ghowld “Lay off from the work for sa faw
days, get rested wp, ireceed up, wached up” and then te “work sbout
the howae;” that the complainant maift elther te him, the witness, or
hie wife, that she 4i4 not come here te werk; that he naver heard
Batyeta aay that he was goime to clive the cooplainont anything out
of his property. ‘The viinese was asket thie cuertion: "Did you
see the letter that he [vatyata]l reeaived from hin daughter?* The
witness anevered, “I aaw the letter but i never got o change te
read the Letter,“
Bick Zerka, a witness on behals of the defendants,
testivied that he Wan aequainted with Batyete and the complainant;
that he knew the couplainant before he knew Batyeta; that on one
occasion he ssid te Batyata, “Your dauguter she lived at my house
on the west side and boarded in my house;" that two or three yeare
afterwards, slong in 1004, he heard Istysta wanted to sell his
Ody fait? jateeted to unos oxide barks male, ome datt +. pana os
art fomana a te spinsed Sek we hae aah 0% 0 hwo exedt aew ae
od Rumen oth ert pltomowed gabon muede etwetet athe hel ede
amie ptheye Pek bre tawr ute knw Megose vevak aatans BORE Ye, 4
eactele sme Mey ad yp heise gamens ae ge:
-pisiesginaaibad wine tlecaneune + AAOES. BOO sg), nls bee
«ane
~ wer ates on aaa sate sae ce tes ata oh a on o
a sem i Km 0% ps "ean a oe stv» bt ek ..
meet Medtet «, 4 weit aie bo $k peas on, ha mint dane Atak
Anta
‘shes ah teancgahs ned saell ideiale Wins wl jane 4
dunia angst ot. 20:9 pe Sam bedinem ges Danceat gus boson Hip. Fel
OIE EF: nT BE OES Ades Puente faenme. edt tah * joi ‘isla
Rota, aA oh tat es ee eae
16
butcher shep and he went te see him, Batysta asked, “Where is my
daughter mew; fon't you know smything about her?* that he, the wite
nees, said, "No, sot for about o year;” thet Batysta said, "If she
worked end stayed with me I give her everything, ond if she don't
stay with me she don't get anything;” that Batyeta aise said, *2 om
#0 wick last week and I have tee dectere and { ealied wy for her
aid ahe 444 not show wp. *
Sooeph ©, Loney, on tebalf of the defendante, teste
Tied that he wae a lawyer; thet om Seteber 21, 19%, he was called
te Batyota's home to see Satyata; that Batyota wanted him te pre
yore «¢ 4121; thet he wanted brs, Kerns Tadao referred te an tre,
Hynes] to get Wl of his money because she was entitled te it: that
he wae not marfim to her but thet they Aad lived tegether for aight
years; that she head gone inte business with hin snd het put money
in the businwes; that the buainess wae « sugvesa; that they had
agreed that upon the death ef «ither the pronerty wae te co to the
Survivor; thet ho, the viiners, wae eslied to Ratyetats home the
next morning snd that Satyete said he wae feeling better ent hed
shangea’ nie wind; that tnetesd of making s 7121 he would tuy o form
and leave that te Ber; that ke bowgnt the farm end told Eres, Usnue
im the presenoe of the wliness that the farm was for her; end thet
he heped that she was sativtied; thet when Satyeta wae in the hose
Pitel he said be wanted all of his preperty te co to Bre, Banus,
ent reguetted the witmess te 4rew up the dooyment that we have pree
viously set out.
Jones A. Galek om behalf of the defendants teetified
that he wae the vice«presivent of the Southwest State Bank; that he
had known Batyete about fifteen years, thet about Nevember 3, 1929,
Batyeta eame te Bie of¥ice with » young lady whe Batyste seid wee
hie devghter; that Batysta hed some segurities in « package; thet
he signed an agreewent for a rental box, put the securities in the
hae onA aatA Hhat ks the witnane ashawiA narmit Mea. Hasse fe on
NP eR ROEM iain nrwg set anaes aadvadina ‘ si pata Oar
ine RE" hibae see anid rye 6 bbe ee toa ale ‘alle ween
Pah octe UE hao .ondsteners wea aly T aa Are Mager ban ele
ee iY kan made abegent Tene “a_alilingas dag Peek th seth eth’
8.
sed 49% cy Rod tne hese weintck ond: oma X Sik a Dhak Seuiodl :
attend yatuatre'toh att te ‘wivind ie 3 sok oY crag’
ies Chae yaar tet ROE th witatet ae inane anew * nom ot of halt hn ' Ph
as: n2 ae nenetan wah ide RS oa
freate C0 sitteiah NRHA Gk Yad Fait et tnd ad bedzxo all
sonal Mia pie GAs wehw deastous ofmt rainy, ed eae eat vag :
© beth wes tend jumewn a nai weemtens adi tao pensutt ¥
da 0h of OF a atARaiGa ont aeaely Le hen os anew 4 ws ote
nity Whine eh antghat OF Ima tee Awe powemete ORE ye pes os ‘
aajeoonsghrvonmdedelonid yc ty tooten
weet a Ca Biibowr St by 2 be som ;
eh he A
Sh
to the bex as & cooranter; that Batysta said ne intended to marry
Mre, Hanus to protect her rignts, because she helped nim to eave
his money; that Netyete alee said ke was going to buy hie daughter
® coat.
Jered tartinex, a witness on behalf ef the defendants,
testified that he had known Batyets for many years; that Batysta
sald re, Hange wae a good housewife, oid that when he get hor
they made money; that Eutyseta sald he ean going to bring hie
deughter te thie country; that when ehe cane Datyata tel4 him many
times that he was going to eae Ale daugiter; that om one ceeasion
ke gaid he wan going to buy her « coat md he wae goimg to fix her
wp; that he heard Datysta say that he wae goine to give Kre, Banus
the biggest pert of Kis property aid wae geing to fix wp hie daugh-
ter; that he was geing to take care of those two women, and that
he sliwaye favored Mre,. Hanus; that 2% the time hie daughter same te
this country Batyeta had s cottage at Brighton aid a Little money
in his business; that he was probably worth about $5,000; that this
ie his, the *itnece’, notion; that Batyeta never told him just ox
actly how auch property he had.
: Eéward Blinenbverg om behalf of the defendants teatified
that Patyetea told hie that be had « dsugiiter in the o1¢ country and
aske? him the beet way te bring the ehild ever; that at thin tine
Satyets was living with Mre, Hanue; that Batyeta sald he wanted his
é@aughter te help hin in the purines and te help Mra. Hanus; that he
dees sot think that there wae ever « tise that he saw Satyeta thet
Batyeta 414 net say something about his daughter; that om ome ocene
sien he said he had Dought her « cout and 4isforent things; that
Batysta told bin that the girl had had trouble with wre, Henus ond
Left; that Batysta never tol4 “im in what manner he would dispone
of hie property.
6. D, DeWitt, a witness on behalf of the defendante,
— ce Bavausad od Blan ataybee dao) pretawenes |
eda o¢ @Et HeQiad oda somvged wtAght wal Seasoug at we
thdigueh ah —ws of gabon degisssbgee ti de awe i ome eee ot
vavnatoin tae ils Wi thn ae tectele a eee ee, OO a rs wl ane
obngiat gett pemeey eon ve) Reagent cibrgad Baek wat tat Netthined — a
Tot ton od mele tee San Sibeadaed howy a ane emeel et Nhe a ve
ee beeen eben: oth
(ide eh NESS acetal nuns soto owite teal pigtain ee ow aa
déldadds oan he dad) pawetorab ofa whe oF ywheg pant gil Me
wet ct 69 yutoy Gov oe tite tam ote yd OF aiod one ad ied a hae
don ,o0 oty OF uadig aow nt Hee ge ‘wget Bene wit silly a
‘atigueh Bis qe x01 of yatioy moe le Yeeeqg aa te Og tangle
aids Sev jamie ent wool? “to we9e wat of Bien vaw nt tank FRR:
od one Totiqoad whl wats ede tn OMN fava set hewn sieht ane
ve etethe s ue saraceuaniens seated ¢ Re nowy oe ae
se tat wh Stor se ati at ion to
snibeanine sini il ee sen ) a
nite tention ‘a ats WE Wessun «nie at hae ae Bt tee
42
testified that he was a poet office elerk in charge of the records
where the eslicetion boxes wore ‘seated; that prior te August 26,
1923, there wae no sell colicetion bex at the corner of 48th and
Ade streets in Chicago; that ths clesest bom wae a block away at
igomie and 44th strevts.
The gompleinant tastivied in regard toe receiving the
letter in question, but the court exeluded the testimeny on the
ground that wider section @ of chapter 1 of the Jllinois statutes
relating te Evidence and bepositiens, the complainant was mot «
ecupetent witness,
It ie eentended ty eounedl for the defendant Eally
Sticks that “the alioged sontract stands unon no better basis than
if 1% were om oral contract;* and *that aulficient proof has not
been shew,“
S&sencing for the aake ef argument that the contract
shoulé te sonsidered an oral aontreaet, and that unter the rule ree
lating to the specific performance of auch a contract, 211 of the
terms of the contract must be clearly and eatiefactarily proved.
(Aldeich vy. Aldrich, 267 121. 215, 228), yet it fe aleo the rule
that the contract way be proved by other than direct evidence; and
that Where focts, including the act ef the partios, raise 2 convince
ing implication that the contract was setually made, and satisfy
the court thet its terms aud provisions are sufficient te justify
ite enforeesent, the sontract sheuld be upheld. Abdries v. Aldrich,
supra, (p. 222); Willie v. sorger, 268 T11., 574, 575, 57.
in the cose ot war we are of the opinion that the cone
tract has been clearly and satisfactorily proved ond that the one
plainant ia entities te nave it apecifienlly enforeed.
Gowisel for the defendant Maily Spicke has cited
Bumercve eseen te support his contention that the evidence in the
ease at bor is insufficient, The ease on whieh he principally
aircoeax odd to open at teeter ertew avy @ ‘ine oil niet bet tpuns ie
OE theawh of tolte bald piwison! exe Sorat wilthe thew aut enter
ee ta a eg merge wed ie of mottcsitteg Edam a baw wage: ener
ite te tooké « wae mod fegueln slo death syers te wl stones ahh
seteoen ore 0 ehinwod
ori? gil riasey oF pica uit: rataimee detaches iegnes ‘eae? j
Silt ta qMenttshet ott Hobn tone goers oat penesibeatt i000" ee
aagutoty Blank sit oie te Jt eatgaise Ae sabagen choca Saat biol
@ Seal wae deante Lome ects canals bam somebhve ot si a6 .
viet i amano vith 00%
_feantace itt ds senaenes ‘ie sien ot ee atin ae
“anton wet? “‘apbon Sanit Nat jtunevaeD Tere ow meebo ed
ed te cia 2 Seerndetes e Howe Ve woman WRrtange Hat OF a
sborety ebivenanwatsae eau eens da 8 town ‘ie ~ ow many
i i ae of 5H oe (8k RR -
oi en van et ilk ye ‘aie | = aed A
13
relies ix the ease of Davigx v, Kniser, 260 Ili, 334. Ye think that
the fnete in ol] of the cases are materinliy different from the
facte in the ense at bar,
in the case of Seupe) vw, Hughes, 255 111, 404, the
gourt waid (p. 453):
“So inflexible rule ean be Laid down to eontrel the ep ecifie
enfereesent of cantracta in equity, Owery case must necessart
fepend and be determined on ite om speaiah Saete,* "
sugrea, clted by ocoune
sel for the ¢defentent Geily Sokekn, the court held that the terme
In the ease of Davier v
of the contract were wnreaserarie and winatural, ta the ease at
bar we think that the terms of the contrast are reasonable and
natural.
Counses fer the defendant Beiiy Gpicka Surther contends
that there is ne adequate consideration te euysert the contract. We
think that the soneideration for the euntract wae that the complaine
ant should leave hor some in Austria-Hungary and ceme to Chieage te
Live, | }
Im the gage of Eygne v. Moore, eypre, in dlecussing
the question of the consideration, the court said (p. 69):
wae
“The consideration for the agreewent/that complainant should
Leave hie parents, brothers, sisteers and other relatives, re-
neownee allegiance te the land of his birth, some te this country
to live and beens a citizen of the United Steten. It was not a
ense of « promise to make « gift without consideration, but was
am agreement made mo legal, velid sonsideration, and when
ertaraed by comlainant the agreement became binding upen Devid
se Brene and the lew tapesed woon him the obligation of performin(
it.
Counsel for the defendant Emily Spieka further contend
that the evidence 4oou not shew that Batysta's Letter to his daughte
wee aAéreere4 and mailed; that the testimony of Klaue that he saw it
matled is contradicted by the teatinony of the postal clerk, De¥itt,
whe testified that there was ne collection box at Ada and 48th
streets at the tine in question; that the closest box was a bloek
away at Leomis and 45tk satrexts,
be
garit shade? oF «DER til O68 «Rnedak ut weios Y¢ vend oat oh pebinn |
wid moet tunes Tedd yliairetom vial etewe ode Yo hla ad eae oat
Ake aye v “he :
‘sted Gn pono aitt at at
eb Ah A OP ata tt same ak |
as
$e anne: oat at. dass oie Spe ee
Ss " Ng aa aa
wind noomenile st Syeasane edt te iste seed ad aakee - — oe
Bhuntenoe soda “asl Mes qb! aalincn'¥alb ‘on <a : tveeua open eeu
Oo .fhercdaoe vit Fxeqne 63. ) wottenwb tena stanvebs ond owas | Aa che
14
We think that the reasonable inference from all of the
evidenee is that the Letter was properly addressed and mailed; and
we do net think that the evidence shewa « contradietion of Klaus!
testimeny in regard te the mailing of the letter. Kisue 414 not
testify that he sar the letter mailed in the box at Adm and 48th
streets, He teagtified that he eaw Batyets drep 1% in the mail box
"en the next corner.” Furthermore, independently of Alaus' tastineny
in regard to seeing the letter mailed, we think that when all of the
ether evidence ix considerad, the inference is clear that the Letter
was in faet mailed, The evidence beth on behulf of the compladnent
and the defendants shove that Batysta wae constantly talking about
getting the complainant toe come to Chienge to live with him; that he
told hie friends that Ke hed seked her ta come, but thet she weuld not
do mo; that later he told bie friends that the was coming; that she
414 eome, Clearly, Betyeta must bave dome something to induce her to
ehange her wind, The only probable method by which Hatyeta sould
communicate with her was by mail. Frank Pick, 2 witness ror tha dee
fendants, testified that he saw Patyeta receive a letter and that
Patyets opened 14 and sald, “Here is « Lotter from my girl; ohe is
coming.* ‘The only probatle inferences from the receipt of thia Letter
by tatysta are that the letter was in snawer to a letier she had ree
eolved from BRatysta and that Batysta's Letter promising tc bequeath
hie property to her had induced her te come, It 1s a fairy inforence,
even frou the evidence on behals of the dafendante, that she éid not
come with the expectation ef assisting lire. Hanus in jolmg the house-
work, tincse the evideuce on beliaif of the defaudants shows that she
left Eatysta's home because of « quarrel with Urs. Konus in regard to
the housework. ‘The probuble reseon why the complainant changed her
mind and osme, in our opinion may be found in the tvatimeny of Klaus
and Merle Prahankebil that Batyeta told the complainent that he would
bequeath her ell of his property if she came.
We de not think that the strength of this coneiuesion
e8s te tie sont. goarvelal othe A
fe (MLA kee pares ol eam, xotend oe fod? a) aoaebive
'mwogh “te madtelbawingo « wars somntiem met toate, auras son 9h 9
fom G8 aged credited wat. Be ye gow te, Bt RURQRE at nna eos
HOGh bar. abA te aod a8 KL Hotlow wedseL ot paw oat tens ei ae |
tes bon nett ae re nenn ee te sonore _
gaan tant ‘ae Ete pein « * agree socom :
Saiate antahtnt ettantenoe aa weayee® tec woe 4 Sate tuee te bm 2 me
ea tmsly jake. se dw evil ee cancel ot ain oe taunt Se = oa ’ taki
ooh ed? 40% menaite o ere nae thaw eo age rast hte otwo! ae a9 |
aed ra KO IRL I YOON Mt Mer Mh OHAD MeETAIODD gaPembinwt
es aati cries nikon: Maasunenetnn tye pies ha Me —
“ten nib wae taalt vodeahattnod tile ‘bo Uluded ou ecanbive Sill be vam
ss aiaelaeaRpsmginetng som aertentane 2 otsesonge one
i6
ig weakened by the evidenes whieh the defendants intredused te show
thet there wae an eetrangenent between the complainant and totystea
after the somplainant ¢ame te thin cowntry, and Wy the further evie
denee introduced to show that at the time he wrete the Letter in |
question Satyrte intended to bequeath his property to Kre, Honun.
In our view, the evidence shows that there was no extrengement bee
tween the complainant and Satysta, and there wae no intention on the
part of Natysts at the tine that he orete the letter in aueation te
the complainant te bequeath any of aie property to Ure. Hanus,
Counse) for the detendant Bediy Soieks further eontonds
that at tho time thet 14 ie alleged that Hatyeta wrote the Letter in
qaestion te the complainant, Batyete "had little or ne fyunde;" that
when he fied he had "“s considerable eatate;" and that on the awtherity
of the eawe of Waliage 8, 103 211, B2b, tie changed ci rewn-
etances betweer the time of making the alieged contract and the tine
of hie death constitute sufficient growunde te defent tha right of the
complainent toe have the alleged contract epecifierliy performed,
Since we are oF the opinion that the evidence clearly
ené eatisfactoerily shows that datysta cade the coitract, and since we
further think that the eontract wae fair and equitable, 1+ is toma
terial whether there was a material change of Batyeta's iinancial
aondition after he made the contract. in the case of Aldrigh v,
Aldrich, supra, in tieuseing s question simtlar to the one in the
oare at ber, the court maid (p.%%):
“Counse! for apeclieee claim it [the property in controe
versy) was worth $100 an aere at the time ef the trial, while
couse) fer epceliant insist that it was not worth that anount,
but argue that even if it war worth that amount at the time of
the trial 1% was worth much lees at the time the contract was
entered ints, and that this court has held that if o contract
wae fair and table when it wae made it could not become une
fair and i table by clroumetances which might afterwards
arice,*
¥urtherwre, the evidence in the case at bar is not
Glear as to Batyeta's finencial worth when he wade the contract. Ve
d . Bi
: Bae,
yeaa
ot iyi
: wae ‘ef , os i" a '
git ale Hel ee a Se Vee Pee ea
Rae
‘
wee 63 beoulorta? sseuseeiricet wae
athe Sanaa nace oe nae sol : |
“as ei avec ‘on sad wear fae . ste bag
| asia ‘ya tke
west wei v iiaade i ies led ig ts .
err wae aw aed paw” “N Galledih Yel :
2 a! ei pa ate ee “eer eu ee ‘i enn a es ia
adi igi ot textos ar ehaos, contortion bait etteo
ow Weil one /Pumrenes ‘ae tees s ‘alls ini gnitt ee nob
et AE UE gehenvines ba» eb ew icine yt tattle
Digidave whek ve ‘Meee
a6
think that at that time on « fair interpretation af the ewidence
it may be soi4 that he had substantial meons fer a men of hin
etation im Life; am4 that the change im bie finencial sondition was
net of euch propertions ae te defeat the complainant's right te
specific performance, In the case of Yalisee v. hangleye, supr:
cited by counsel for the defendant Yaily Spieka, the value of the
property at the time the contract waa made was $12,000 and at the
time qf death about $360,000. the court said in that ease that
the alleged contract was set satiefacterizy proved by the evidoues,
and that the conelderntion for the contract vas inadequete.
Vewnsel fer the dovandeaut Saliy Gpieka further eene
tend@ that the chamneslier erred in erdering that the expenses and
soliciters’ fees of the guardion ad Litem should be taxed in the
bii2 of coste, Cowneoi waintuine that the chaneelier should have
@irected thet the expenees and solicttera’ fees eheuld be paid out
of the estate of Satyeta.
Ceunesi fer the complainant contend thet under the
equitable juriediation of the ahanvelier, the question was one for
the exereiee of wie disereiion end thot he he» not abused his dite
eoretion,
Helther counge) for the defoudant Selly Soieka, nor
counsel) for the cemplainent has argued the quastion fully ner cited
ony sutheritier on the question, im this eitumtion we think thet
we are Justified im holding tuat the question has been waived.
Boarding v.. The Peonke, 202 Lil. 12%, 124.
Yor the xensons stated the deerse ie affirmed.
APF LRWED,
NeSurely, P. J., ond Katohett, J., concur.
sommdive oft ye aettatearetal 1% « me ants dase tm Sth ie
wat Vo wae m tee nanos Tatvandoded tak at Beate en ts is te :
et te be Miedema te
bat eee fons ah ae Pane oa? 1 WOE
ssornbiwe ofa Xi Sevens, Gi nndew'tnksne seve ssibanisin
: wiappehiak saw teastags oy te) neh tenable
boon cost’ sito Legs RiLaN Setehap teh git ora, ts lll
ee
oats of haxnd of Admode mnags bo.
tek Reale RB Ldweathe gat “a
: ileal Leone at
PL MMR a a eat” Rw
36 + 30840
MINA KAPLAR,
Defendant in urror,
BRRGK £6 CIRGUTY GOURT oF
COOK COUNTY,
ve.
JGRUPH RAPLAR,
Plaintit?’ in Brror, 6} ide
Fel i Sy i 1 i o> wed
Aelhe Kes oD
EDD
)
BR, TUSTICE JOHNGTGN OMLIVERSD THY OPIRION OF THE couRT,
Thien is a writ of errer prosecuted by Joseph Kaplan,
the defendant, to review a deeree in fauver of Kins Kaplen, the
eomplainent in « sult fer separate maintenance,
The defendant agke for a ravereal af the decree on
two grounds; iret, that the chanesllor committed reversible
error in allewing the original bill of complaint to be amended te
ehov that the defeniant was a reeident ef Geok county, Dilineis;
apd second, that there is no cortifieate of evidence, und the deo
eres does net reoite the facts.
The asendeent in question wae sliewed and wae aade
before the entry of the Pinel deeree. In tile state of the record
the asieudnent wae properly allewed by the court. It te unnecessary
to diveurs this question, se the preciee quoetion has been decided
adversely te the contention of couneel for the defendant by this
court in twe very recent oases in carefully considered opinions
written by Mr, Justice Hatchett. Piotnitaky v. PMiotniteky, ?42 112.
App. 166, 168; Bellewgn vy. Nellesen, 239 111. App. 622.
in regatd to the question whether a certificate of the
evidence was neesssary, we are of the opinion that a certifleate ef
evidence was not necessary, os the decree contains findings of fact
which are suffichant. ‘Yae findings of fect in the decree which we
consider sufficient are as fellews!
= nena. a: 7
= ey ; A th Pes
ESO aed: 7
aga fiction: ot 2 tagetese Sh te |
johoni ist .yrawen does te saonsenn & aa, oe recy
et en dew yawns 28 wtaog iowa Ho OOM equ ga a,
‘ale enw Rae penne nae onan: a tenetinsn in honda, ae
menet 902 to ndate Bint of weetowh feats eat Ye cutae wld
erneeeiae ot #8 .oeeee eco yt hewelte. yheews
shincihinge ‘Aicvidbn ones gene nt nen a0
csiltttamemegunapmpecegel
a ee eee ae ee
si a etn inhibin Silane anata edd Mt Wega |
“Ne eiaalhiome @ ivased Rate Mosh Oi ce aA,
“and the eourt doth further find that the parties here
were lawfully joined in marriage en or about the firet day of
June, 1903, at Foland, Russia, ond that as a result of sada
marriage there were born two children, Leon, now abowt sixteen
years of age, ond Hyuan, now about thirteen youre of age, beth
living ond who have bem and are now under the gare, custody
and contrel of the complaint;
"and the ecurt does further find that eubsequent to their
intermarri on or wbowt the 16th day of April, 1921, the
defendant, Joseph Kaplan, wilifsliy deserted wid abeented him
self from the complainant witheut reasonable caues for the
gsonae ef over two yearn immetisiealy prier te the filiag of the
bili in this cause ond that the sald cemplainent, Mina Keplen,
hae been ond ie now Living separate aid avort from the said
defendant, Jereph Kaplan, withont favit on her part ae charged
in the complainant's amended bi11 of complaint.
"and the court does further find that the said defendant,
Joveph Kaplan, 4i¢ om April, 1971, wilfully abandon, desert and
abaent Kiseehf frem the complainant at Akron, Ohio, where the
complainant and the 4efendent were living ae hueband ond wife;
ona thet the said defendsnt, Joaesuh Eeplan, at onid time came
te Chieage, Cook “ounty, Tliineis, ani that gince that time
he hae been living in the said City ef Shicags, where he has
been engaged in business, and has been alnoe the filing of the
amended bili ef complaint aid vas upon the Gate of the hearing,
a resident of Chicago, Cock County, Tiinele;
“and the court doom further find that the eaid Joseph
Koplen is well able to eappert and maintain tae complainant,
ina Kaplan, and ner sald ehtidren;
"and the eourt does further find teat there is new past
due ond owing te the complcinant, Mine Maplan, from the dee
fendent waéer an order of sceurt heretofore entered for temporary
ahimeny, the eum of $65.00 ond the further eum of 936,00 Tor
temporary seliciters'’ fees.*
For the reasenea stated the deores of the chancellor is
affirmed,
A¥? TARED,
Moturely, P. J., and Ustehett, 7., soneur.
etesed wotdzey ont sacs aCe weeheet me
Ye vad doult sa? tyede io ay age bene os
ee oso ae tact . einai itm
prnie eek oe ae
‘ths: ee ee taki cay beivaad a |
coe ae mer Fees bats ateteg ° sohtead eat
tesa ot siencotet a * “ts
oe eit f: mie A Sy : i . yh aN A ete Ke oe SR ae a zh if
ym
ih 4 icf 5 # Su Vee ha Me Oar cent he iy th
BM viel HOR Aint Pee ee any agi cores noe RE SRM CA Me AA BA
m y a * By We, 4
4 by ae i all a! ce bs Os) whe He
SM ay Mea a ee Vices Snag a ey
ab ie soca ci ee a i a Renae Boa 8 Pas ae WOR CBE NRG ke
Wie Ga Macks ae eM a) t At: fen Seeopeoaen A
ORE a eal ae VN RR Be Bek baouananeee hg baad poet hte at ee
228 - 31047
JACOB J, MENUELGONN, PHILIP
BEN DELSORN WEYER
Complainants,
ve APPSAL PROM CLINCUIT Home
)
: o¥ GooK couNTY,
MORRIS GOLD and KICHOLAS J. ccs:
PRE |
)
‘ Defendants,
BiCHGLAS J, PRITZEUR
Appellant.
2441.4. Gos!
= eee ae PE OK GD
9 ie
BR, JUSTICE JGHRSTGH DELIVERS THA OPINIOR OF THR COURT,
Thin ie an appeml by Bichelee 7, Pritsker, one of the
defendants, from a dearee in faver of Jacob J, Mendelsohn, Pailip
Merndelsemm and Keyer Selemen, the oseplainantea, in a suit in
equity brought by the complainante sgainst Priteker and Kerrie
Geld.
fhe suit was brought te enjoin the forseloaure of a
chattel mortgage given Wy the cemplainente te Gold for the pure
pose of securing the payment of 36 promissory notes of the come
plainantes payable to Gold, agersgeting $20,500, the mortgage and
notes huving been delivered, a6 the complainants allege, in @s-
erew to Pritzker; further te enjoin the assignwent or the trann-
fer of the notes and morteage; further te compel the surrender
ef the notes for cancellation; end further for an sceounting.
The decree of the chancellor adjudged that the chattel
mortgage ani the notes are void as againet the com@elatinante, and
erdere’ the defendants to deliver those instruments to the come
Slaimente; the deeree further adjudged that Pritaker ia inderted
to the complainants in the oum of $6534.57, ont ordered Pritaker
to pay that amount te the complainants; the deeree further found
that Geld is indebted to the complainants in the eum of $1000
which was paid by the gomplainants to a broker on behalf of weld,
2 east somos out o> sbeuertgeh ered vate
iors yt {
‘ ast apse Sa {0420 Sane. a woten ea:
? dotted ion. oe cong seine, oat, bg > eran oud era
and ordered told te pay thet sarunt toe the complainants; that decree
further adjudged that the bill of sale wae void and ordered it
cancelled; the deeree further ordered Pritaker and Gold to psy the
gents and expenses of the sult, smowiting to 5720.00, omesholf te
be paid by Pritaker and oneehnlf ty Gold.
An outline ef the uncieputed evidence Le as fellows:
Gol@ and hie wife were the owmmerse of 211 of the steok im a corporne
tion by the newe of the Somerset Neto) Pharmacy, with the exeeption
of one share of stock whieh wae held by A, B. Pritaker, a som of the
defendant Pritsker. The pharmauay was located in the building of
the Somerset hotel wider a lease from the imershem Geotel Building
Company, the owner of the Gomerset Uptel. in the lease the drug
estore was referred to as “the eorner store in the Senexest Ketel."
Negotiations were begun between the campicinonts and Geld and his
wife for the purchase of the drug atore by the compleinantes. The
fivet meeting was hela at the drug store May 11, 1923. There were
present the complainants, the defendant Geld, the broker in the
transaction samed John Arone, Berman K, Kendelsoln, brether of the
Cemplainsxte Juesb 7, ont "hilic MendeAschn, ang sise their ettor-
ney, A written agreement was antcred inte for the purchase of the
4rug etere an4 the lease fer the sum of $70,550, Om the aligning
ef the sereement the compiainante paid 91590 as o fepealt to Krone,
$1200 of which was to be retcined by Krone aa his soul sion.
After the mesting at the drug store all o7 the parties on the same
day went to tae Govenunt Club wid there met the defendant Prituker
and Peter Siseman, an attorney representing the complainant Solesenm,
From the Covenent Club sl of the parties en the sane day went te
the office of Herman &. Hendeleohn. ‘the agreement was eubmitted te
Pritzker and Giseam:, Pritzker stated that a modification would have
te be msde; that Gold had $8000 on deposit with the lesser of his
lease as a guarantee for the performance of the lease wd that the
p gadionany hina Khos wn is ne te oor vet
ast goa vt pied heee sasoasiaa bruwnte 8 0
sateen pote aid bw pid erat teysncoe oe ca oann ont
7 Ss cane are ee
$2000 should be adfed te the purchase price ond showld be paid as
the ensh pareent, Thin war agree’ te by all the parties, I¢
was further agreet that arrangemente rowld have te be wede to com
ply with the Bulk Sales Law, All of the parties wet agein on the
evening of the anes day at the drug store. At thie meeting
Pritzker atate’d that he bad been Im consultation with Hrs, Gold,
that she ebjeecte4 to the gale, and that as fur ae he was soncerne
ea the deal was eff woless her concent was obtained. The next
meeting, at which all the parties were present, was beld Kay
14th at Pritazker's office, Gold stated that his wife had agreed
te the sale at the purchase orice of $25,060 with a cash payment
ef $8,000, At this seeting the plan of traneferring to the come
Sleinsnts the stock ef the Somereet Hotei Pharmney wae discussed
and the neceseary corsorate minutes and other papers were pre-
pared,
On May 25th sil tne parties exeapt Geld, whe was 111,
met at Priteker'’s effies, At thin seating it was decided te abane
fon the plan of transferring the stoek of the Somerset Xetel Phare
macy te the eemplainante ani te make the sale ae an individual
exle snd mot a corporate mule, The papers were changed accordingly.
Aleo at this meeting Pritesker wrete em the buok of the lease the
form of the agviguuent of the lease by Geld to the complaints,
and aleo the form of the acceptance of the aevignuent by the come
Ploinanta.
On the night ef Hay 15th Pritzker took the lease with
him te Gol¢'s home and had Gold execute the sasignment of the lease
te the complatcunts, That night Gold wae taken to a hospital ehere
he rewained wetil June Md,
fm May 16th there vas a meeting at Pritsker's office,
at which Pritsker, the complainants Mra, Geld, Siaonan and Herne
W, Mendeloohn were preeect, The complainant Jacob J, vendelsohn
wae not present at the first part of the conference, but arrived
before the conference closed. Krone and Gold were not present,
At this meeting it was eyreed that Pritzker should hold the notes
and chattel mortinge, eleo the cash payment ef $6500 to be made by
the comelaiaants and alme $566 te be pald to Pritsker ty Krone
of the $1500 previcumty deresited with Krone by the eompisatnente;
end the neoter, mertonge and the 6560 thereupon were delivered te
Priteker, ©n the next day Krone jelivered to Pritsker the $560.
At the meeting of May 16th Priteker prepares? the following re-
seint:
Reeeived ef Failig innhan sae nat eeee Soiomen, snd
eS a eiat aswantits Ukcck me tet katie
Muntases Motel Vusswasy have been unde.” It is undeostesd
that I may use cash or notes as tie case may require in pay-
ment of wadd obligations frau the amount so deposited with me,"
Although: the reoeipt suews the sum of $3438,10,
Pritsker in feet received only $7000 ooeh. Ineladed in the amount
of $6434.10 was the $2060 remaining in Krone's bonds and §435,10
for which the complainents were to be eredited in connection with
the sdjustuent of rents, electric Light bills and water bills,
It wae agreed at the mecting on May 16th thet Pritsker
eould use the money in hie Hends to pay the erediters of the drug
store in compliance with the Bulk Seles Law. Pritsker lumediately
began to pay the erediters with the soney, Among the payments
Pritzker made te erediters vas a payment uade to himeelf on May
16th of $5119.61, which anvunt Gold oved to Pritsker on a note of
Gold fer $5000 with interest, «siek Pritzker bad endorsed and which
wae secured by 4 chattel sorignags on the Chateau Pharagacy, another
drug stere owned by Gold. The note was held by the Home Hank &
Trust Company, which on Hay 14th had charged Pritsker's account
with the note,
on Hay 17th or Leth Pritsker sent the bill of male
firaena duel papmen taps: «Kt To deg uty at te
ineawuy Fon anew hie} 2am oMeTh sheonde ese
acto aa Atel Playas wedar eek sea iltnaaiaenaiii
i annie ne ae a ees
forse epugalsghicine wis
“dearvin etd at toboson’ pepom hosing:
DEON baw ahten von ab by
ea NeW 7
tte pesca ca sap ee ca ot news hi mine
and the loawe to Giseuen, who im turn sent them to Herman K, Bendel
somn, Gold's ageigueamt of the lease te the complaisent wag on the
Leage, but the lease comta'ned tie gesiguaent to the eemplainants
by the leweor, the Thorcham Motel Buliding Corperation,
Philip Yendelsebn had taken over the eanagunent of
the drug etore about Yay ifth, He resalned as manager wmtil about
Fume Srd. It wee ogreed om the hearing of the cause that Frank
Seward, vhe had been the manager of the drug store for Geld, would
testity if he were press that om or shout Any 1éth Philip Bendele
goha asked him if he would work for him “half time;* that Seward
agreed to do 9¢ a4 sentinged to werk for Pailio Bendelsomm until
@ euetotian towk charge of the drug store under the chattel morte
esge. “a MayZlat or ®?ad federal prohibition officers seized
some iatexicoeting Idauer that waa in the drug atore, This affair
is referred te ae @ “reid,*
on Bey 24th all of the wartiesn exeent told, whe was
still sick in ao heepite], weet ot Pritsker's offier, Priteker
stated that the atiterreye for the Shoreham Hetel Building Corpora.
tion were “dinguieted shout the rata” and that the hetel company
Was going to terminate the lease, It war agreed at this meeting
that the complainants shewid pay the June rent for the drug stere
amounting te $6°%. The complainants gave a check for that amount
but the check wae mot paid, as the couplainsnts’ account at the
bank on whten the oieok waa dram was closed by the complainants.
On Jume 3r4 or 4th some one representing Gold took
possession of the drug store under the chattel mortgage which had
been given to Geld by the compininanta,
On dune Oth the ¢rug store wae sold under the chattel
mortgage. The sale wae contucted by Pritzker's sen, A, 5. Pritze
ker, The trug atore waa bid im by A. . Pritzker on behalf ef Gold
for Fl4, 504,
The principal questions ef fact in dispute are (1)
whether Pritaker er Gold agreed to obtain the consent of the
lesser, the Shoreham Neotel Building Corporation, to the assign-
ment of the Lense by Gold to the complainente; (2) whether it
was agree? that the aale of the drug store was to be a conditional
@ele d4evending upon the obtaining of the conrant of the Sherehan
Hotel Building Corporation to the assignment ef the Lease; (3)
whether the goney, totes ond chattel mortgage were delivered in
enerov to Pritsker ta be held by Sim wntii the sale was consume
mated; (4) whether Phikip Kendelechn tock over the management of
the store under « conswimated sale or merely pending the consummae
tion ef a sale; (5) whether the "raid" of the federal prohibition
agente wae made because of the violation of the prohibition laws
while Gold was in poseension of the drug store or because of the
vielation of the prohibition laws whila Philip Mendelechn ras
Heatiaging the drug store.
. fo state and diseuss the avidence in detail relating
te the diaputed issues of fact weuld unduly extend this epinion.
It te eurficient to say that the evidenes is direetly eonflicting
om all of these teeues and cannet be harmonized; that if the evie
dence on benal’ of the complainants te saceepted as true, the sale
Was a conditional ene, descending upen the obtaining by Pritzker
er Gold of the consent to the lease of the Shoreham Hetel Building
Corporation, and the money, notes and chattel mortgage were de-
livered te ?riteker on condition that Pritsker weul¢ held them |
wntil the sale was consummated, previded that Pritsker might use
the money to pay debte of the drug store in order to comply with
the Bulk Gales law; that Pnilip Mendelechn took ever the manage
ment of the drug store fer the convenience of ali the parties,
pending the consummation ef the sale; that the raid by the federal
prehitition agents wae brought about beesuse of the sale of ine
sui ee neern vant te — 2a os oak
madlorpett ekt Te Paswebe xeg 0 peantiiene ou? agey gah
(8) sonnet sue to dnnsiigtone vas of MODE UNE TET J “fat
ee ee ee
evens Re ete ont Thies wht ea Pol ed ae weweeras oF ” oer
te: Fireseaipaeninis aly selva Hee? aaanaanes abt sent nw oy : sd
abe Nektar Setaeet Mt Te “tay wate “gedtvedt= GF) qatbe ae ‘e be ;
amet wetP LI’ edt Xe te iene ity” Te onbaeel hai | ate! vs
ony Xe waimeed te wate nsaiast shy %% Soong Ab a tte ° ae
“tings tar Sh <NNBNE a a we! ite ou ot
| gabty ketene YEewThh at sols ive eat tees yun olf ‘tote Reve ea
ee fanie U Senimas an woisne t awastt Ye Ike
bashed 80H ea eCyHOON 82 wInCUts igkOD ent Re "Riaaye a9 da
| RY geagedead srmegniee sat eben tie Lened omanienede ‘eit
| 3
oe pi ‘dain en teRe oad 8
i ie foe ils a sa ta wo oe sna catal
toxicating liquors by Geld while he was still in csarge ef the
¢rug store.
On the other hand, if the evidenge en behalf ef the
defendants ie scecented as trac, the sale was net a conditienal sale
but a consummated wale; that there eae bo agreement that the come
gent of the Shoreham Hotel Building Corveration to the santgnment
eof the lease by Gold would be obtained for the complainante, either
vy Priteker er by Geld; that there wae Ke aygrounuit thet Mriteker
would hold the money, notes and chattel mortgage until the sale was
coneumunted, but that om the contrary they were delivered te Prits-
ker unconditionally; that Philip cerdelechn took ever the manage~
ment of the Grug etore far the complainants ae the rorvit of «
consummated gale of the drug store tc the compicinante; that the
raid wae due to the sale of intexieating Liquere by Paiiip Mendele
seohn while he wae munaging the drug stere.
¥e are gonfrented with the neoeseity of determining as
an original question which vereies ef the evidenes we shall aceept
as correct, nines in a chancery ereceeding, secording te the case
ef Cheehik vy. Koleteky, 311 111, 454, 454, the master’s repert,
while uring facie correet,is of an advisery natura only, and “all
the facts are open, lor consideration, in the firet inetanee, of
the trial sourt, afd in caas of ati appeal. by the reviewing court. *®
The principal testiseny on besalf of the complainants
consisted of the te¢ctimeny of the three complainants thesselvesa,
and the testinony of Sigeman, Zrone and Herman &. Mendeleohn. The
chief witneewciay the defendants were the two defendants Pritaker
ana Geld. ‘There wae wlso documentary evidence introduced on bee
half of the defmudante,
After a careful consideration ef all of the evidence
we hava decided to accupt the testimony of the complainants as the
Gorrest version of the tranauction, netwitistonding the feet that
okey canine Hiotne de he: ae Rap td ene in chagaeaet
eee: needs gas Sate cape aaa peri ichbaaen bot
Seiten wens
ies wt tare 00. Pannen aE hegavabt ke
wie aia que | eR HE os
fimo webs We eames. Qui seoteormh We ahi wat wt a
: : iy “ie Riehl Low i ili ie Se Pe penne os cemadenlieale i
“wo aittinnonedes "to Yeteennnn wilt cele Kndhonttend dial %
Dh shtal Eihaioe ow tho neh bee msi ty ne heeviow Reh
dial ot yaticbown. ,maainwonsy scremtnge a ah %
cinebase nies ane ae ee eg oe,
there are clrownmetances in the testimony of Pritzker ont aleo docu.
mentary evidence om behalf of the defencants which tend to support
the defendants! theory of the case, Tas only ¢riterton that may
be used in determining the credibility of legal testimony ia that
of probsbilities. <Ané on probabilities we ore constrained te hold
that it ie highly improbable that the complainants would have ob-
ligated themselves by a written sagreesent te purchase the drug
etore for $24,860, ond te pay $9,000 ef that amount in cash unless
they had been positively ageured by sither fol¢ or Priteker that
the Gherehaw Hotel Building Corseration would consent te the ase
signment ef the leawe to the coxmoelainuite by Geld, The somplalne
antes were net buying merely the steck of gooda and the fixtures of
the drug store; they were buying the good will ef the business as
well. Thie in shown by the coroorate minutes that were prepared
by Pritsker, in which it was expresely reeited trat the good wil
was part of the seset« ta be purchased. the chief value of the
good will depended woon the locality of the drug store. The faet
that the drug store wae iecated in the building er the Somerset
Hotel wndeoubtedly enhanced the value of the business. The eoue
Plainants manifestly expected to conduct the business in the
building of the Somerset Hetel, where the businesa wae located.
The lease clearly wan the principal agset of the purchase, In
the cirewistences the conelueion ia irrevintible that the ecomplain-
ants contracted for the purchase of the drug store only on eonfti-
tion that they could seoure a valid lease to the promises,
| Yt is net dented by the defendant Pritsker that the
lease was on important aseat, but he contends that the complainente
themselves undertook exclusively to secure the consent of the leas-
or, the Shoreham Bote) Building Cerseration, to the assignment of
the lease. Such » contention is opposed to probabilities. It
seene unreasonable to suppess that the compleinents actually would
eee ee a: a be woman out we in |
aie
pay $9000 in eagh, would ogres te pay 826,500 move, and would da~
pend upon their own effertx exclusively te obtain sensent ef the
Boreham Mote) Building Corveration te the agelormont of the Lease;
iu other words, that they would actually buy the Ascug stere and
take a chance on getting the consent of the Ghorehan Zetel Butiding
Goervoration to the lenge, It way be that Paellip and Berman Kendele
sehn apoke to Jertener, the eceretary ef the tiherehaa Hete}), Builde
ing Corperation, in reYereaae to securing the consent of that come
pany to the aasignment of the Lease; but the probabilities are
that the Bendelwohns (14 this gratuitiously, mot as part of the
agreement. fhe testixeny on belay of the complainants is that
Biemnan said he would not be watiefied with Gertener's consent or
signature te the ageigusent; that Sieaman iovieted that the cone
gens and the ¢igneture to the aaeignnent of Growen, the preaidant
ef the Shereham Hotel Building Cerreration, showl4 be secured by
the defendente, Thies teatimeny geen highly probable, wad accords
with Sisamen'’s tostinony that Ke stated to Pritaker that the lease
wan the pringigal seset, Pritaker, hevever, tertified that at the
firat meeting he stated that since the leave to Gold Srom the
Shoreham Neotel Building Cerporation provided that the Lease could
be acelgned te « corporation by tue mane of the Somereet Neotel
Phermncy, ant since Gold had changed the mane of the original cere
poration te the name of the Somerset Hotel Pharmacy to comply with
the lease, the consent of tha Ghoreiem Hotel Building Corporation
Would not be necessary if, instead of purcansing the drug store
from Gold ws on individual traneaction, the complainants would
"take over" the Somerset Hotel Pharusey Corveration mid have Gold
ageign the lense to that corporation. Bven Af Pritsker's construc
tion of the lease us state? in his testimeny were correct, re 46
not think that bis testimeny weakens the probable inference that
either he or Geld agreed to secure the consent of the Shoreham
Hotel Building Corseration te the amsigument of the lease, The
te en oemantae mdse 5 berrataee, ot é jon at
rene 38 Sete rote dnnt ii Seth. hema me
pooner ia aii mm
16
only safe course for the complainants to have pursued would haye been
to inelet as a condition precedent to the conaummation of the sale
that Pritzker or Gold should obtain the agtual consent ef the Shere.
ham Hotel Building Gerperation tc the asevignment, wid not te depend
upon Ffritzker's legel opinion that the consent of the Shoreham Hotel
Building Corporation to the ansignment wae umecessary if the com
Plain wte would “take over" the domerset Hotel Pharmacy Goxperetien.
Counsel for the defendant Pritsker argues thet the
undisputed evidence shows that the failure to get the consent te
the assignment of the lease wae due solely to the raid by the
federal prohibition agente; that the raid was meade because of the
violation of the prohibition laws, oot by Gold, but by Philip
Mendeleohn, and thet therefore the complainants consistently can
not maintain that the fatlure te get the consent of the Shorehan
Boetel Building Gorporation to the sesigoment of the lease was due
to the fault ef Priteker or Gold. Ye ie not think that the evie
dence shows that the ratld was made because of the gale of intexi-
eating liquors by Philip Mendelseebn. As we view the evidence the
probable inferenve ie that the raid was brought about by the viola
tiens of the prohibition lowe while Gold was in the possension of
the drug stcre aud net while Philip HMendelechn wae managing the
drug store. *urthermore, even if the failure te get the consent
of the Shoreham Hotel Buliding Corporntion te the assignment of the
lease was due solely to the raid by the federal prebibition agents, —
and even if the raid was caused by violatien of the prohibition laws
by Philip Mendeleehn, and not by Gold, the defendants consistently
gannot argue that the efforts of Gold and Pritzker to get the consent
of the Ghereham Yotel Building Corperation te the assignment of tae
lease were frustrated by the raid, since Gold ond Pritaker have taken
the positive position that they 4i¢ net agree to seeure the |
eonsent of the Ghorehem Hotel Building Ceorseration to the assign-
ment of the lease, If, ac the defendant Pritsker contends, the
complainants theneelves agreed to get the consent of the Shoreham
Hotel Building Corporation to the assignment ef the lease snd
failed, it is wholly irrelevant why the complainants failed.
afeo eit to wok Rsmepeaseo ax? at bhai ‘itn’ & ‘$ fet ‘ jae 8
were alt “te teens Leutes ony wineda sLarede ake xe puisy
Seegeh aF 20a fee ,taomeylons one et awaeortoes ed. poids cu ost ai
feted medoted: ot ta sarknoe aad uth aotalae ingest este et
akoy add Th Coninsnenay ane Smmame Vdd OF KoktererTO Babe
Makiwrseto® yaswEedt Iofed genteel a “Tere wolat® iver atte
OH? scald epayth waked tet dnebaoteh ade yok tence See
gt tnemans wh fey od ovntie’s edt tad weet combive. dosages a
| ait wt Lit oot 9¢ Woden wb gal wasn d oa Yo Cummmphane elt
ett hy senaned nes BAK wie eae Jot hinge nelly tikaoty he ct ot
GbLiEt yt ted bLOdws Foe jownd melee Mem ad he eokteteny
fea Eftunte bends etansiniques ede ata tenad? tad han mbontehegt —
mane tes Cx? Le SiteaRer ed? Teg oF omihel oft dod st tisteitem - Pon
oh tow wasnt od Yo trnmntone odd et in traseqeed ‘puibitot shen
atwe woe sadd tarde fom ab of ited to codetiet te eine at ot
ntcetet Xe ofed acl Te command abet ane Blew oct Catt mete ooaeb
oy sonphive wat ede ay me. sagan BEAN wf ave tae
nedply edt yd. droda tquand anv dint sat tact ot commne tal | i a
Ye aa tenonn sy pad mh eae Died SLIMW deed aol thd idety oat rt whet
ederintapbandaines scence hnagelamnientstasileslag inl:
teosnap eff toy 4 vtudiet 87 2h asve patentee Shee gat
ad? 4 Seemaytaes ody of asltexerral gabbsin® fosell andpreds ott te
é vetman aeons pwvoniees ont ington ant, Cul vor, uel — a
el eo! na jae Ae elie’ eae ortt 1 ef ttn vi ‘ie
git xeon 99 ones rom SRK yet tndd wade? kev ett
ncpiat Of) 68 mabtarneiag publ itl Kote aatorads ests tw monn
est jebindnon eadee tert Sand Lap ae shane wit te tan i
< let oe ba tonesen, ae. + ek: 4, boone. fortunate ctu
a2
In ether words, if the compleinants agreed te get the consent of
the Shoreham Yotel Building Corporation to the ansignment, it is
immaterial te the defendant friteker whether the Sherehem Kotel
Building Corvoratiom put ite refusal to censent te the seatgmment
of the lease on the grownd of the raid sr on any ether growid.
Couneei for the defendant Pritwker contends that the
BALL ef complaint dees not state « cause of aetion in equity, and
im support ef hin contention relics on the ease of Vanatta vy,
dAndiey, 198 211. 40, 48. Im that cause the complainants were
seeking the cepcellation of a single promiasory note slleged te
be fraudulent or forged, md aise seeking an injunction ageinet the
entry of a Judgment om the mete, The court held that the facte
in that case were not sufficient te Justify a resort te = court
of squity; that the remeiy at lew ras adequate.
The general rule i# toat in « proper onme, ehere the
defense at Lavy ie inmudesuate to sromete the endo of Justice and
afford complete relief, « ecurt ef equity vill require the sure
render and ¢erecliation sf written inatrunents, Blusk vy. Miller,
173 Tl1, 489, 49%.
ta the ease ot bar there are 34 promissory notes ond
@ chattel mortaege, If the notes suould be transferred er aola
by the defendants to different parties, « multiplielty of actions
Bight be brought om the motes by the various owner sgainet the
complainants. Vurtheruere, the faste alleged in the bili ehew
that there ie no sonsideretion for the notes; that the contract
wae not consuemated ond that the netes atid the chattel mortgage
are vold; and the facta alleged im the Dill aise show that it
Would be inequitable in the circumstanees for the defendants te
Olsnim ownership of the netow ond chattel mortgage. Voereover,
the bill prays for an accounting from Pritsker ae te the dis-
dursemente that he made of the $7900 delivered to him, omd sles
teats BES
Se eins
te dee mes ent toy a? Snertge gtdentde Dging att FE 1 gemvee ante a
a et pinay tite ‘el? ” notiwtogta) wath tint tere! nite ve ite |
oosit gsi nat ae rwltaste sadn? ta% ‘fast eater a ‘ole wadamak
mosesytana sii of tuonupe 6 dame ik ee fiat danas re) ARR ta
ee ee ee ms rag ; oy
oat tos? chunsees wkad Let duahas'Des sale 0% sears
| sali nstaiddeoel we bhee: ad neces wlemneninstiousnt a
A she rte 4 alin bead bad hostel neh dé
= i. aT as Tt Pe ee
Se age ats an eae da al pele ce es. iy a ae
Se A Se pair ge a SE Oe Te MT me Cy one ’
to oes ncn wane 8 ab Pa * tt oe i
mann eons shat a ial tale tase 42
anid wliunpedeunintnmenmnansaina: oat wi
a2
fer an ateowsting on the part of the complainonte for the moneye
reovived by them while Philip Mendelechn managed the drug store,
We are of the opinion that the allegations of the
bill of complaint stats a caver of action in equity. The epeotfie
grountea for aquitable relief, a shown by the bill of complaint
ape (1) the right of the soumhainonte te have the notes and |
ghattel mortgage caneelled; ond (%) the right of the complainante
to have am acesunting from Priteker of the money that waa delivered
to him in trust.
Tae eameellation of instruments t» classed in the axe
giusive Jurisdiction of equity. & Gyclepedia of Law and Procedure,
p. 286. Ye recognise the rule thet squliy will net exereise this
power wlece substantial equitable reasons are ssowm. 6 Cyclopedia
ef Lew ond Procedure, p. 286. In the case ot bar in our opinion
the substantial equitable reseons alleged wy the bill of complaint
are (1) that the 36 netos on’ the shattel mortgage ore void be
gaune the contract between the serties was never consummated; (2)
thet the complainants may be gubjected te 2 multiplicity ef suite
en the notes; (4) that there ie ne consideration for the notes and
mhattel mortgage; (4) that the notes end chattel mortgage having
bean delivered to Friteker in eserew, Pritzker holds them in trust
for the cowelainante; (4) that the compleinanta cannot obtain
adequate relief at Law,
Agvording to the authorities the reacens ve have
atated constitute equitable reasons in the oirewstances fustifying
the interposition of a court ef equity te cancel the notes and the
chattel mortgnge. 4 Ruling Case Law, section 5, p. 490; section
Ll, p. 499; © Gersus Juria, section 70, p. 1196; 6 Cyclopedia of
Law and Prosedure, p/ 289; Bouse vy. Bolan, 147 Pac. (Arizona)
736, 737.
We further are of the opinion that the bill of come
13
plaint shows os an independent ground of equity that the complain.
ants ate entitled to an accounting from Pritsker as trustee of
the money delivered to him, The People v.Bordeaux,242 Ill. 327,334,
Counsel for the defendant Pritaker contends that the
"bill is fatally devective in not tendering back the drug store,
the bill of sale and the lease, as well aw Pritsker'n receipt and
agreement to ast as everaw,*
In auprert of this contention souneel cites the case
of Huiller v. Ryan, 306 111. 96, 93. in that oase the wourt held
on o dewurrer te the bill of complaint that the bill wae defaetive
in net making a suffictent ten¢er of the consideration reeeived
under a contract whieh the somplsinunte were sookiny te reseind.
In the enwe at bar Af the objection im question had been urged on
demurrer, the objection would have been well taken. Sut me de.
murrer wan interposed by the defendents, in the present state of
the record we think that the objection isa witheut merit. The evie
dence shows that Geld is in pessenecion ef the drug etcre and that
before he tock poseession the complainonts offered to give him
possession, The bili of sale wae adjudged void by the decree, ond
Was caneelied. The lease wae ordered by the deoren to be delivered
to Geld upon demand by hin ox hic duly authorised agent or attor-
ney. ‘The failure to tender Pritzker's receipt ia obviated by the
provisions of the deeree requiring Pritsker to account for the
money for which the receipt was given. in the clreumetances,
therefore, it would be usreasonable to reverse the decree because
the bill of complaint is defective in the respects complained of
by counsel for defendant Pritaker.
It is further contended by counsel for defendant
Priteker that "the bill having been brought te enjoin the fore-
closure of the chattel mortgage, thie was a re-affirmance of the
purchase by the complainants of the drug store in question;* and
anbasases cd Fast ware to bart, sranmeqebind ie ae
aD
ene. wwe ort senses wontindnes, asa te even stn
tied ares are one dost wt .80 Bb tet a ! 5
ovitaetos, oa AEd8 oot Sat tata lanes te 5AM, eat
__ Brekepes seo Leeranh hanen pit, Te tehand ftp nhs a. grtt
states ae met anew oat ‘as aii oo we é; .
oa
tof ey teatoe ta oon ae -
14
that "the cormpletnantes are now estopped from asserting the eons
trary and claiming relief imeonsirtent therewith, *
We are of the opinion that these contentions are withe
out merit. Simes the eerenee of the bill is that there was ne
purehase of the drug store by the complainants because the sole
Wae never conewosated, we de not think that yvessemably it ean be
contended that the prayer of the bill for on injunction against the
fereclocure of the chattel mertgegs implies a "re-affirmance of
the purchase of the drug store by the complainants.” Furthermore,
the deere 414 not grant the grayer for an injunction, The com-
plainonts, therefore, have mot obtained any relief that is incon-
sistent with the aliegations in the bill that the drug store waa
net purchased by the souplainant«.
The quaation of eeteunel ia not invelved, an 1t does
net appear either fram the clandings er the evidenes that the da-
fenidantes eufferet any injury by yeanm of the alleged incensieteney
in the bili of compiaiat., If the sbjection in question had been
urged on decurrer a 4. fferent question might be presented,
Counesi for the defendant /rigsker contends as
feliowa: “Sven if Pritsker had made asewrances to the complain-
ants that the lesser of the drug stere weuld consent te the as-
sigument of the lease to the compluinantea, this was merély a state-
ment of am expectation, or the expression ef an opinion, or at most
& promissory representation, aii the failure to realize it was not
ground fer rescinding the sale of the drug store nor to oancel the
chattel mortgage and notes,”
We do not think that the evidence justifies this con-
tention. In our opinion the preponderanee of the evidence shows
that Priteker neresd to seoure the consent of the Shoreham Hetel
Building Cerveration to the assignment of the lease an’ that the
purchase of the drug store was not to be consummated unless
ge
eae a oe snow 0 ae dsoee + cabinuas ee
tox aur ot wabiaes oi wishes ite |
edad catdabueeioaial nate "twa
15
Priteker obtained such consent,
Cowmises for the defendant Pritaker further makes the
follewing conteition: “All the parol teetimeny that Prituker hea
promised ta held the money, metas and mertgage on any conditions
other than as stated by him in the writing by him eigned and de.
livered te dompiatsenta © * wae incompetent under the parel avi-~
Aenee rule, and showkd be édavoqardet, even if 1¢ were net denied
by Priteker ond others, *
it is srened by counsel fer the defendant Sriteker
that Priteker wus the agent only of Hold; that the rule is that the
delivery of s dead or promissory note to an agent constitutes an
abeolute delivery te the principal; taat an exerew can be dolive
ered only to « stranger oer third person not a party te the con-
treet; that the delivery of « deed or promissory note te the
agent ox priceipa, entmot be treated as a delivery in eserew, but
ie om absolute delivery; that whore the delivery Lo to the agent
er principal the rule ia inflexible thet pare] testiseny is ine
admigeivie te shew «4 eontexoorancous agreement to the effeet that
the delivery of the deed or note ahowld be treated oe a delivery
in eeerew, Couneel sites nuvercus avtheritiow to suspert his
position,
Granting, for the gake of arguaent, that counee) has
stated correctly the rules of Law, these rules in our opinion are
not applicable te the esae «t tar for the reaven that ln our ope
inion the presendermece of the evidence shows that Pritsker was
mot the agent only of Gold, but the agent ef a11 the parties; and
that the delivery of the 4ocueents in question to Pritsker wee a
delivery im exerow for the benefit of eli the parties, In bie own
testimony Pritaker adwittet ue vas heiding the notes in eserey.
He anid; “I am only an eserowee, You got to deal with the
principal. I om holding these only for the benefit of al] perties,
i ‘ities ea ae oReys re bie vedo ein cea +
A, “7b dew boat Lentudanseeotnag at medead seein: le
‘ a Re Say. “pan ii
“aes ipeawilens’ ed POY Leeogtoe Wa ‘heanppion- eh oh
sath Yasté bl ston one wine HAKOE To hoe Sr te mma
ab Cosudideaes tiesye do Oe odaes tcout iy te homo te eee
ee en ee een
Pearcy Aa
"qui 6 bbw wc an atte
” at Laima ad outa reat: sat tennsbupinlinnads
uy ea er ¥y
ae “aa Kosnee bad’ rome “ie asia ach a canner
es “oe ‘mokatige ‘tie WE Wein aia) pene te ween aNe ok
gd ae) 8 Fale gona ker <a seni de eniew WH ne
Shc aamnneseod seni Hom Ve oath ts
16
not for any one particular party, hewever good « friend of mine
he may be.” We think that the evidence shows he was sleo holding
the money and chattel mortgage in asero*,
Counsel for the defendant Pyritsker further contends
that parol teatimony was inadmissible ts shew that the bill of
sale and lease were delivered to the complainants “neon a condi+
tion not expressed on their face;"* that the rule is that "all
conversation contexperanesus with or preceding the exeeution of a
written inetrument are all werged in the writing end ore net come
petent evidence,”
Ve 4¢ not think that thie rule is applicable to the
case at bar, The recerd does not show that the complainants, as
parties to the lease an4 to the bill of sale, attempted te con-
tradict or wary the terme of these insirusents by parel testimony.
The pursese of the parel testiseny was te show that the bill ef
sule and the lease wire te be held by Priteker in eserow witil the
sale was consummated. The evidence doen not show that the com
Pleinante aecepted the bill of eaie ond the lease as an absolute
delivery. The test in each case waother there hag been an acsepe
tance is the intention of the parties, wd each case munt be
Judges by ite own facte. Hil} v. Breiger, 230 Till. 408, 412,
It was held in Mitchel) vy, Glen, 25 21, 180, 183, in regard te
the question of the delivery of « deed, that it le competent to
show that « deed, eltheugh in the hands of the grentee, had never
been Aclivered, but something else was to be done before 1% should
take effect.
In the case at bar it is « fact that Pritsker did send
the bill of ssle and the lease to Giseman, whe in turn eent them to
Merman %, Mendelechn; but we think that the preponderance of the
evidence shows that it was the intention of all the parties that
Pritaker should held these inatruments in escrow, together with
“Ye SE6 ne deat ote , annem
eta. 8 sean abtOnte FeNeD aad 99 neonerbben wen
_ ft tot ok okie actt saat betes et us
a wo saitenaxe sat gotseunte to ad ‘
“
inns. set a hag, ste ey eet oe
t len le past soe: esol pti eh a wd.
piety epee |
OE EE RN NN
iv
the money, moter ont chattel) mortgace, wantil the consent af the
Shoreham Hotel Bullding Corporation to the areigueent of the lease
had been obtained by Priteker or Gold. The evidence shewe that in
@ conversation between Sissuan and Pritaker in regard te the bili
of gale and the lease, Siegen stated that he had reesived the
lease but that the lease di4 net contain the conaent of the Ghore-
ham Hotel Suilding Corporation to the assignment of the lease by
Gold. Pritzker admitted in Ale testimony that the notes were dee
livered to him in everew. We think that the evidence shows that
the money ond diattel mortgesce were delivered to bim in eserow;
and we alee think that the evidenee shows tiat there was an agres=
ment that he wae te hold the b111 of sale ond the lease om the
game conditions thet he held the money, notes ont chattel mortaage.
In thin view parol testiseny was stuisaeible to prewe euch an agreae
ment, Goby v, Reynelis, 260 11), $76, 893; Hitehed
Jordan v, Davie, 106 Ili, 336, 342.
Cowivel fer the defendant further contends as fellewa:
AES
"The failure to obtain the convent of the Lessor te the assigament
of the lease did not effeet the chmpletion of the transfer thereer
te the complainents, nor 414 it violate ony of the covenante in the
assignment er bill of wale, but at moat gave the Leaver a right ef
election to declare it forfeited. ‘the lesser alone could take
adventage of that breach in terme of the leagse,*
These contentions of comeel may be granted to be
true, but they are not pertinent te the case at ber since we are
of the opinion that the prepondersnee of the evidence showe that
the sale of the drug store was not te be conewmnated until the
convent of the Ghereham Hotel Building Corveration to the aenignment
of the lease te the complainante hed been obtained by Pritsker or
Gold,
Sewnee] for the defendant Priteker further econten4ts
ms guste eros sanieiiee os ney or)
| “pwotes eh sax me hecherntn ni ye
Paap sant eee ctanad cals fase,
18
that the introduction im evidence by the complainente of certain
documents executed by Geld after the filing of the bill ef enme
Plaint, vere not adwiscwible ageinet Priteker and showld be dis-
regaréed, even if it should be held that they were admiesible ae
to Gold.
In anewer to thie contention it may be sel’ that we
have reashed our conclusions on the evidence tadepeandently of the
foeumantary evidence complained ef,
Counes] for the complainants have assigned os a orore-
error the metho’ by which the chanesilor cemputed the ammunt whieh
he ordered Pritsker to pay to the complainants.
We are of the opinion that the computation of the
chancellor wae Justified by the evidence,
Yer the reneons stated the deeree of the chancellor
ie of firmed,
AFFIRRED,
BeSyrely, P. 7., snd Vatehett, 7,, concur,
; i rn
1) aie CNAME. «TOSS AROS Fa
ai me ie , sh a vr ‘
yf! i P —a y
+ i a \. ; ip
nan Uy © Pa Lo
| |
\ t i - { , cf yi] a Sw é al
{ oe. 4 | fulitee |
a 0 sca: \ i] : i i j
3 | tt fi La
2 wid VW
BO 31118
SANUVEL STROBAL,
DeYendant in Errer,
x ) BRROR TG COUETY COUKT
Ve.
GF COOK COUR*Y.
v7. 3, 1uezis,
Sei 4. = ak OA By @ J) ks @ ® :
Plaintiff ia Urrer.
SYUPPLYAMSTAL OPINICK BY WA, JUSTICE Jounera,
6m the petition fer researing the only objection that
need be noticed is that under seations 85 and 56 of the Prustice
Aet the trial sourt wae actherised to exter judgement on the plaine
tiff’s affidavit of claim witheut the taking of testimony. We de
mot think that the plaintiff's affidavit of sislw is outficient.
The declaration eonsiots of two divtinet eauses of auction, - one on
the commen seurite wd the ether on o brenek of oontragt, in that
the machines were vet in accordance with the sawphe, In the
special count the plaintiff alleges a8 a apecifie elenont of
damage the ‘380 whieh he expended for repairing the machines; and
ales alleges @ total damage of $660, The affidavit of claim slieges
that the total umeunt due to the pinintdr fe 9650, The affidavit
of claim gould mot be Yer a liquidated amount in exeuss of $290.
The difference, therefore, between that unoint und $68) vowld be
whliquideted dasages woleh could only be angertained by testimony.
In our view, seeticns 62 wid 56 of the Practicae Act contemplate an
affidavit for liquidated danagea,
ss si
a ee
Opeth rae Yr mom
ap gs i a ade he sg et
‘ Fe ee
2 a 4
sie
ee
CC Pe LAS |
eer goxtern: re ™ MereRdg: sarecaeeeme
vy
me O80 © moan twee sense dant oe t6 pa 2 39, vate
Ae itaauee’ eae het 2
“tet at tounge te donmes @ ae tothe nati Ene, BEMOS
“Mt at om Lopate ord sit bv eoaabrooe: all ritershane |
ie ; see Ve ee Meee
at
he Homann » oe — sot beams wate satin alt ou
BivabiTNe out “oooh ot wabitedy aa oF 2
cpror hla Sydreksyes seh &
20 + $1212
GAN TEL ETROBL,
Defendant in Brrer,
BRROR TO COUNTY COUNT OF
vo,
7. 7, THGRLS,
Plaintiff in Srror.
COOK GOUNTY,
Aer ee Set inn Nea eaten ea
RR, FURTICH JoUMGTH DRLIVERSS THE OFINTON OF THR COUNT.
This is a writ of error proseented by the defendant to
reverse « judquent by default ebtained aguinst the defendant by
Gamyel Ctredl, the plaintisT,
The Judgment order shewe that the defendant wae de-
faulted fer failure to file om affidavit of merite; that after
the default the ecurt proceoded te aseesa the plalnabiff's damages;
that after hearing the ovidenes the court seseseed the plaintiff's
damages at the gum of $650.
The record shows that the defendant had entered his
appearance before the fudewent of default wae entered,
According to the rule, the defendant wae emtitied te
be present at the presending to assene the danages ond te particl-
pate in thet proceeding. Straus v, Kiewsgn, Ne, 30064, Firat Divie
gion Appellate court, opinion filed Nevewber %, 1926, not yet
reported; ¥iliiaue v. Horton, 135 11. Apo. 112; Ostrobramy v.
Bargunitie, 139 T1l. App. @5. In the case of Straus v. Nigsean,
in on opinion written by Mr. Justice NeSureiy, the court said:
“The defendante were not in complete default. Their dee
favlt admitted the cause of action, but not the amount of
damages, Consequently, wider the rule, they were antitied to
anieese gi the entecelines. In'viow of the Baber ef waite
in this county and the voluwe of businens, this is a reason-
atle application of the rule,*
On the authority of the ease of Ostrobrany vs
Barezaitis, supra, ve are of the opinion that the defendant's
ees le oo te
ein ane" hed worn mn inca Laacseeiapaned woreni ‘mates va
oa sonar tt a evoconenn, seats. “te, vena 1 a wa pi
spe ie
ate decade ha: fastinettoly oe tie area
ean |
Gd bed Oe caw Haat ne Gh ect pate oats we Pei ieitind
ola ding oa hah cogent ante Dacsar talus nsgaccuentied Scoala
ahve tec kt ,PetOR sgt li
gable 18 eer tna meses otros —_ }
appearance became part of the reaerd proper by the mere act of
Filing it; that a bill of exeentiens was not negensary to shew
the filing of the appearance; and that it will net os prasuaed
on the record in the cave ot bar that notice eaa given te the
defendant to sppear at the ansenement of the plalatiff's damages,
#or the reasons etated the Judgment is reverged and
the cause remanded.
KREVEAGED AND REMAKDRD,
Keturely, FP. 4., wd Katenett, 7, , coneur.
70 = 31204
VRAEK P, COOH,
Apoellant,
; ) APPRAL VO MUNICTPaL cour
¥e.
OF CHICAGG,
JANO7S & ERAWEK CO,, o
Corporation,
Appellee, dates a gomee oaremy
~_ is ' i* es WD
t
—
WA, FUSPICK JONNSTOR DELIVEARD THE GPINIOn oF Yee covRY,
This is an action brought by Frank P. Goan, the
Plalntis?, aguinet Janews & Lramer Go,, the defendant, te recover
$2194.52 alleged to be due to the plaintifr under « writien con-
tract between the piaintiff and the defendant in regard to the
e¢lleetion of claise by the plaintiff fer the defendant,
Om the motion of the defendant the trialk court struck
the plaintiff's acuiawent of claim from the Piles om the ground
that it waa inev{fieilent in leew, The plaintil® lected te abide
by the statement of claim,
Briefly stated, the etatesent of claim alleged that
by the terns of a written contract the plaintiff was to hendlie the
Aefendant's evllections for “ea comission of 207 on claims older
than one year and on 44fficult claims; 80% on traced claime,* and
that “claiwe withdrawn” by tie defendant “after date of entry are
Chargeable with" the plaintiff's "“sexmiecions as above;” that the
defendant placed five claims with the plaintiff for aclleetion
[tne epecific amount of each claim being stated]; that the defend~
ant withdrew these five eleime from the plaintiff; that by the
terme of the contract the plaintiff wan smtitled to a commission
on each claim [the amowit of oneh comsiasion being specified], the
total of sald comsiasions amowiting te $1224.11; that the defendant
Placed with the plaintiff fer collection a eleim for $34.15, which
wae a 4ifficult claim, which the slaintiff cellected, thereby
ve
peeing entitles te a souwsiesion of $5.53; that the defendant is
autitied te @ eredit of $25,606; that the total umount due to the
plaintiff is the difference between $1924.11 and 925,60, nawely,
$2298, Si. :
It ie eontended by the defendant that the trial seurt
proverly struck the etatesent of cleim from the files, se the
Plaintiff was not entitles te recover on the contract wines the
contract is veid on the ground of publis peliey, for the reagen
that by the terrae of the contract the sisintiff underteck te
Practice law ant the atutement of claim does met alleze thet the
Plaintiff hed the right to »ractice law in tne state of TDiduoie,
In guppert of their contention seuasele for the defendant rely on
the sase ef Bidland hey, S49 TLL.
App. 271, 275. ,
We do not think thet the contentien ef couseel fer
the defendant om: be muintained, ae the contract in the case af
bar expressly provides ae Toliewsa:
*Priexs to the signing of thie agreement 14 ie understood
by a2] eoncezred ond by al) that hereinafter aay be concerned
that Agency ithe plaintiff) dost not render er purpert to
render legal services or practice lax,"
In the gase of Bitiand Gre lit Adjustment Go. 3
Domnelley, suora, in which it appourad that tae sentract provided
fer the sellection of seesunte eltheut suit aad with sult, the
‘eourt eatd (py. 276):
"She biLL aw smeoded states a ease waerein the corveration
Complainant wan engaged with ite esecomploinant in the praetice
of law, This oleerly sppears from theis hoving eontracted to
make collections with or without legal procesdings.*
Geuneel for the defendant further contend that the
statement of claim ie insufficient in thet it faihe t» allege that
the plaintiff had performed ali the conditions ef the sentract req
quired to be parfermed by him, or that he was ready, able and wilie«
ing to perform thon,
a cs al ae iW
os saben ate saat: a ™ Ao ndveonagmgth @: i saree, naint ;
tiles (ine Mal sess |
- tirid katie oat hack? vendowted aff Ge BoP he
ne sa great oath ‘eet ate fe ee tnedntese or issn we me
eit soaks fosttnn ene ay weroat at — ‘a0 dia we
won le ‘eat eels ote wal to
oe showtyet om Chitade te, aad sae Rs ire
AO? punt, baie cai sees Cea " eed
© shen ate
inti S snitle BS
Ya agras with gis contontien,
Counsel) for the plaisiiff, Sewerer, maintain that the
aotion “wae net brougit to recover for services alok the plaintitf
wewld have te perform as « condition preeedent te rogever;" that
“the eauee of setion as eet cyt in the statement ef olaim wae for
the ateust agre<d ty the fefendent te be pei? te the plaintiff when
Glaime siewld be withdrawn br the defendant frum the plaintifr's
hands after the Aste of their anteys" that “the ntatemont of claim
eet up that the «laioe im question were entered by thes Aef endant
te the plaintiff under the contrast, an¢ the elaine were wi tharamn
by the defendant after the date of their extry whereby the plains
tiff Geeame emiitied te the axount claimed;" that “there was nothing
in the sontract require’ to be done by the olaintiff se « aentition
precedent te the racowery ef the wate ta 6 im couse of withdrawal of
Glaise after the date of their entry unier the contract;* that “the
SETeUROUL to pay tas eontsivemionsa to the phaimsirf an slaisie withe
érawn after iate of ontry wae on independent agreement snd upon the
Withdrawal ef the claime the amount begame due te the plaiasifr,*
Asuwelmg Ser the sake of argument that the contention
of vounwel for the plointiff that the clause of the eontract in
regeré to the ainime whieh thy defovinns ol grt witharer, ig/tmans
Penient egreement, then it Feliews that that egreemont is anenfereee
able for wait ei wutusiity. by the terme of that agreament, as cone
etrued by eouneei fer the plaintifr, the 4¢fendant Le obligated te
Pay the slaimtiff commissions om elaime which the defendant might
withdraw from ive pininiis’, al iough Sho claintiff ia ander ne
edligation te perform any services whatever in reepect ef sugh
Claies, The rule in that “here one party is bound te pay but the
other is met hound to perform, tne contract is leeking in mutuality
and fie therefore wenfercestic, 13 Corous Juris,oec., LS, 9. Mi.
For the reasons stated the Judgment of the trial court
is affirne4, AFF IRUED,
MeSurely,?.J,, and Watehett, J., concur,
Tete TAOS ke eR ON:
$A ire nigt anton peoreved JERE! sete es oe mae
YUL ehaky awh Moder navigees TET nh emER OF tvigeeyed Ege. eet entten
game “ iuereders at #imiosseg mebtibaps « a etin se bind yi ord 7
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BB - 31716
THE PROFLE OF THR GRATE OF
TLITNOIS ox ral. BARY G'TOOLE,
Defendant in Srrar,
ae BARON TO MUNICIPAL com?
OF CHLOAGO,
WiL-1AM Hakaw,
Plaintiff in Krror., } ies ~ PIX
I,
WA. JUSTICE JOMNSTOR BALIVERED THE CHTRICN GY THY corer,
Thin is a writ of error preseeuted by Yilldwa Naren,
the defencant, to reverne a Judgmest sgeinet him in a proceeding
in bastardy in the Bunbeipal court ef Chicas,
The defendant wae tried before the court ant « fury;
the fury fowed the ‘defendant callty: the court ordered the defends
ant te pay 21100 for the supnert, aainterance ont education ef the
@hild; and further the cowrt ordered the defendtant to give bond
festanter in the eum of $9206, end in default of bend te he come
witted te the county jail, The defendant failed te give bond and
Wae committed to the county jail.
Ap the defendant hes sevigned mo errey on the evie
dence it wlli met be neaeasery to etete or dinguse the evidence,
it wlll be sufficient to say that the evidence Le couTileting.
Tae only ground on which the defendant aske for « ree
versal of the Judgment is that the court orved ia instructing the
jury as follers:
*fhere in « rule ef Law that abides here that if any wite
neon, that is, that if you beliewe that any witness nas testified
faleely te fact material to this issue, then you can dis-
See's cach chmaes ing’ ave bean’ varvevevates by tear aredi¥ae
testimony or by facta and cireuzstaneeas in evidence, *
Gounesel for the defendant contends that in view of
the conflicting evidence the jury should have been accurately
inetructed, but that in the part of the court's charges te the
Jury complained of, the esventisl elewent of wilfully and hnowingly
RARER BOs
“Oe “e8 AT baa oi
Bo be
stabil: tachi Nt Monnaies oe ree a aha
er re cree tno sn nea
gee He aren Lee, sh wh :
2 ahr ae anu ren eat wanted: be Dre. moe Scab eee Oke
abhialcah sy Meee Prone ane Geter le Sauee eah, lh
wit Te RODEN tR Mm Reet ctresoue acle SHE ARISE yam ae cl
‘asad piete ot tmachsia'ea att: acaenn. Se ae pebepeBy deo bate
testifying falsely was omitted.
Ve think that on the resord the defendant is net in a
position te agsign errer on the court's charge to the jury. From
the record it is evident thet the court instructed the Jury erally,
in such oane the record must show taat the defendant objected
specifiesliy te the charge. Pagarare vy. Halberg, 246 Ill. 98, 96,
97. Im the case at bar the defendent did net make the opeeifie
objection now urged against the court's charge. At the conclusion
of the charge the folloring soliloquy took please between the eourt
aad the attorneys:
"The Court: Te there acy chieetion by «lther side te any
dnetruction clven?
Trial Attorney fer the Defendant: Bay I suggest you ine
etrust the fx ome
The Court: ust anever that particular cuertion, As te
any part ef the inetractions given, are yeu stating eny objeeq
tien?
Trisl Atterney for the Feople: Egq,i am net.
Trial Atterney for the Defendant: © am ebseeting.
The Court: Are you objecting?
trial Attorney fer the befendant: I an objeeting,
fo the giving of each of suid inetructions the deo
fendent then and there duly excepted,
wre Court; Be you desire me to instruct the jury on any
Tried Attornoy fer the Defendant: Yes. On bebwif ef the
defendant i wish you would inetruet the Jury that the fact that
the defendant hee tertifies im hie own behalf should be taken
as @- be given an fair convideretion ag any other vitneas,
Triel Attorney fer the People; Beth sides should be ine
eluded in the instruction se given,
The Court: I think 1°24 40 that.
Trial Attorney far the Pecsle; It is covered already,
The Court: Yes, it ie covered but 1 #142 say a littie
more, In this case, gentlemen, beth this complaining witness
ant the defendant hove testified in this case snc the fact that
one is the complaining witnerse and the ether is the defendant,
444 net stop thom from being competent witnesses here te testify
on their rassective sites, Navirg widortaken te testify, they
are just witnenees here, and their testimony in te be Jutged
the same an any other witnesses’ tratiaeny in Judged ond welghed.
The fact that she is the complaining vituess aud he te the defend-
ant are facts which you may take inte cometderstion, You have ne
Fight to diaregard the testimeny of either one of them just from
the mere fnet thet one is cemplaining and the other defendant, and
you should treat them just as you de oll other witnesses in cone
sidering their testimony and determining where the greater weight
er preponderance Lies «nd Just vhat the truth of the matter is.
a your verdict on the evidence here and sign it and return
t te me,*
ee ere
CS yah oy ‘peduwtiand txaew wale Iect eapbiwe eae
ai a: tom wt eectnn ted wo cone eae ne sais’ ‘las peg
next .geet Het at analy af Sapee ers Re pega
adage somalia aiid gaa = Seve Sreeet sed von dows a |
108 a ote ae a ee ways f fine 8% bo
vtiioney td phate et 4h abel our aed “ ome ont £ ee
solpvtivtes, pat Be baer et Saagee aye foweve Laue sais wo
tah tt “et nnn one: ree i
ee oA enanela om ae ot,
et wey dawned te aitebew tes gid’ ‘eet
at ah: savleneiy wedesretie tet waoda Peal 40h
ioe nasi dP ae Cuaniben! "aeoldncateat eh
| A sais
Gevunaml for the defendant contends that speeifie abe
Jeetione te orni instructions in the Moniciyal court ore required
by rule Gof that onwrt; that that rule dees not evnear in the
Fecord, sn that the epurt cannot take Judieial notive of the rule,
Ye are net deciding the question on the sanwention
that the 4efendant faiied to comply with rule $ ef the Kunteipal
eourt. Ixresrestive ef a rule of sourt, 1t te @ general rule of
law that where the court inetructs the jury orally, in order that
an exception ts the charge may be saved for review, a specific
ebjection must be sade, a, (po. 99);
ag, 67 tli. 446,
Course] for tae defendant eaintaine thet the oral:
charge must be tata a8 & #aele an¢ thet if would net be groper
"to pick out vertein gortione of the charge, oultting the other
pertions wich Limit and qualis’y tae sane.* in eeppert ef hie sone
tention counsel cites the anesen of Groenb ore Colids & Geuoarn
R42 TAL. 1G, LLG, and Sersas imeri¢an Union, 263 111. 304,
BLS.
The cententions of seme, are gorreet, but « 41fferent
question iw presented om the record in tae eave at bar, Vhe reeord
shews that me egecifie objeotione were made te any porte of the oral
charge; thst enly the following general ebiectilon was made: “Yo the
giving of each of eaid imetructions the defendant teen and there
@uly excested.* uch am exception, sceording to the esses of
Feoarsre vy. Hahberk, ouprs, und liggking v. linskine, supra, te ine
sufficient te save the question of the osrrectnera of the oral
charge for review,
Fer the ressons etated the Judguent of the trial court
is arfiraeda, ANFLRBED,
MeSurely, P. de, ond Runtehett, J., coneur.
~~
Ne
é
ode aitinnwt Jax ebuetaca Shahn t0k og ai ae rt itemise:
Bentoner oun drmre Dette oc ot Bea haatent mere oF empkineh
russ ak ane fam BOP pet mild Kauit pANOND, tad 8 Oke AT
mis pes wo op lian delottwl, ove) dpotem eves otf tree, am, shone “ay
nidtauoon tit se metivony ot abiinwh om ames 4
| dagighses 960 10. & ade Abbe plement Pcie Arahat a tat
Wy ott Kenalog a x2 TE cue Te eae | |
taut tates ch , whsete geet, byt
BESO, 8. gee kese ta boway. 14 em eae soit:
ri? .4) orem yaeeien » poems otha pe tes
Tu eas dl ts 8 :
aren ery waste # onsptatem anv teh se 2h, Leno
| meen #8 fom Doce aR tlt hee aaah Pt ae shad
(107 - 31236
BERTHA B, FORRNSTOR, Administratrix
of the Eetate of Joseph Forrester,
Deecenved,
Defendant in Srror,
vs.
CHAPLYS €, ADSIT,
Plaintisy in Zrvror.
)
) |
RRROR YO SUPSALOR GoURT
| OF COOK Coury.
3
, = Fr Pp
A Aj | A f, é) ~~
y > Gy UP
i ee
2h. oe § fie
MR, JosTICR JomRETON DELIVERED Tm OPINION OF t= couRT,
This f29 so writ ef errer preseouted by Gharles ¢.
Adit, the defendant, to reverse tro deorees in favor of Bertha %,
Forrester, administratrix ef tho estate of Joseph Forrester, deo
ceased, the compl ainant, in & sult in equity brought by the come
Pleinant.igainet the defendant,
Persensl service was had upon the defendant, but he
failed te enter his sppearance in the euit. Gn Fobdruary 4, 1926,
& deeree Was entered ageinet him defaulting him Ser want ef an
appearance, ordering that the bill be taken pro sontesgo against
him for want of an anewer te the bial of complaint, finding facta
: @ubstantinily as alleged in the 6121, and referring the cause to a
| Master to take am accounting,
The only evidence that was adduced before the hoater
wae the teatimeny of one witness, The waster found that @l1 of
the material allegations of the bill ef semplaint are true; and
further found that the defentant awedt te the compleinant the ewe
of $15,404.61. On February 10, 1996, the chancellor entered a —
deeoree approving and confirming the Muater’s repert. Subsequently
the complainant filed a petition slieging that the defendant had
“wilfully megiseted and refused" te pay the money which the decree
direated to be paid, and praying fer a rule requiring the defend-
ant to show cause why he should not be punished for conteupt,
% The court entered an order 4iveeting the defendant te shew cayse
»
why he sheuld not be punished for eontenpt, The hearing an the
potition was continued, ant war still pending at the time the
present writ of arrer was progeented,
The only question to Be determined on thie writ of
error is whether, when every legitimate and reasonable intendment
and presumption is indulged in euppert of the allegations of the
bill of complaint, there are wufficlent fecte alleged in the bill
of complaint to juatify the deerees,
The bi11 of complaint ie in substance as follewa;
"Your oratrix further represents unto your Honore that
one Charles 0. Adseit of the City of Chicage in the County of
Cook and State of TLiineis, whe is wade o party defendent to
thie bill ef complaint, nad in hie poseeseton on, to-wit, the
26th Any of December, A. DT. 1919, se a trustees for the @aid
Josevh Forrester « large ow of money, the exact amount of
whieh ie unknown te your oratrix, and which your oratrix has
been unable te ascertain, but aniownting te not lege than the
eum of Pifteen Thousand Bight Hundred Twenty-alx Dollars and
forty cents, which awowit of meney the sald defendant, Charles
CG, Adeit, then an¢d there in writing acknewledge4 and sromised
te pay te the ania Joseph Forrester; that aftervards on, to-
wit, the seventh day of Januery, 4. 3. 1991, during the life-
time of ti@ sald Joseph ferresater, the aald defendant, Charles
G, Adeit, eaueed to be paid om Bin behalf’ to the said Jeseph
Forrester, a portion of said money amounting to the eum of
One Thousand Five Hundred Sighty«twe Dollars and Gixzty-four
oente and sfterwaria, on to-wit, the L?th day of Marah, A”.
1921, during the lifetime of the said Joueph Forrester, the
said defendant, Charlies ©, .deit, saveed to be paid on his
behal? to the sald Jeseph Forrester a pertion of sald money
amounting to the ovum of One Thousand Five Gundred Sighty-two
Deliare and sixty«four oents, and aftervarda, on to-wit, the
L7th day of July, Aw 0, 1922, during the Lifetime of the said
Joseph Forreanter, the said defendant, Charles ©. Adeit, caused
te be paid om Bie benelf te the eaid Joseph Vorreater a vere
tien of eaid money amounting te the awa of One Thousand Five
Hundred Bighty~two Dollare and #imtyefour cents, md afterward,
to-wit, om the ind day of December, A. 0. 192%, during the
Aifetine of the ealdt Joseph Forrester the sald Charles C,
Adeit caused to be paid on hie benelf to the said Joseph
Forrester a portion of said money amounting to the eum of
One Theusand One Hundred feven Dollars and eightyetwo cents,
but hae never paid, or caused to be pald, either to the said
Joeeph Forrester in hin Lifetime, or te your oratrix, the
balance of the enid money aid the Interset thereon, or any
| ye thereof; that the woney firet hereinbefore mentioned was
part woney whieh the anid Joseph Forrester in his lifetime
had delivered to the said defentant Cherlea ©. Adeit to held dn
trust for the aei4 Jonenh Forrester and in part the proceeds
oF sale of certain ohares of the oapital etock of certain core
porations theretofore held in trust by the ssid defendant,
Charles ©, Admit, for the said Joseph Forrester, the exact
elt aa galing at tqeedann 0? nce Bee o€ tom | ite a, or
edt emit sd? Sa gmbhiog if) fe ve hte. vonmok mae saw mene tég, ‘
fe daonmeng: aw eeree Le shaw senaons a
te eee eld? ao biaduroonn a8 of agktoonp ‘haan att: fe Ss
dovnt a 3982 okdanone ink pave Os amit Sle L ree any ssesnedw at wrne ny
oe to eagitay nite aly Ye smoqanie bb bo pdiad at aol ryawaeng bas
Ate ee suk neue ita atout fos de rage 6% 7 weode alasqaae ‘te tra
SO a sntacque ve
ewe ttert ee ea aks EN a ad $5 kad eraoe te bene oat
s igtae:
sate deanel troy eo ay etneeexony satan’, atutero ‘muot® |
te uiadwe atid ak ogead Se sito ont To dhebs & ee dat
oF Shiatusteh yr tae fo wba oh adr whookist Yo atats vet
7 Pagerngh te Aeteteeean #40 vt bet appense none Se at hid
3 iat one xot obtortt « we , 820k of oA xe
A cyl SeaKe wit Remnant: te cow opie lw dcnaed te yf nr Te
me ‘gittere tee Helier ite ye ieiete seoy ot. awentay ah dpitiw
ne wekk Reel ted ak ‘gander, tut ~abodeneng ot ntdene sind *
a Gtr Lh owt Kid mies oT tubeatiaaeh tiligh Deewana ety - MOSEL Ee: yt =.
a , Sinko teh Ned 06h ee
feiss Ink heghelvoniga yatiixw at wundt haw meat 9? ee -A
Ske se whnarrment Mens: pReisertat dgenel ioe adi ed ong ae
Be tk ens pnd teh Sh SL oS ok yg Cee Yo yeh eeeven watt: ft ‘
G eae eb Kiar al? xetee? “nat Seopa ida mod ‘gre ni
aot bine ed at “tate whe pe She at oak homuiow Ae ek
te. sue pal ae. wake ou an aoe Aheo an ns pe ae or
ae
‘ht eta fits Gee Elod SWMVG IA baxte exoadt i ray Ue
eek 9 Aes. ke wae SUe iL one sRetogd OR per sn “Page th ee ius Re ce
gee tedeeiret myeech hive ek¢ To euldet Lf ole cor OY: S| ee ae:
okt sear Bhat od os beacen, eT ER: Sot l ia bake ee
Yhawe hae Ip Misiog « Le reewiet deanot haa. welt od tod
partway birdbaylt welt dauiged™ i ee eat ae pa oxen
ode ,diteal ao wheats ic bao ,adaed vote ginko haa ratio’.
bise att to wie lito) amlagh RSL of ak . goes te $e a
oa ane Pinna .0 sobtads , Sune io'teb biome 980 .hedsarcs
et ano aotonnro't ita et. ‘phe: wht of Thoved wid.ae bing od yenenyn Wis
aril ine pa a “i bed et gpd qonws bhtee to mle
. Rha awin 125.068 awe aprgta Ane acee erty f hethael.. it
re hy ott gathive (S002 of WA tedeaaed to ca Fe ele me Phenyl
ce
40 gre bhoa ace. erat pr eo Bho wed te ;
sgpa a bins vB. of Veved ehd nd bing vd of braume & Bn
0 mi ad 0 i yes advan renege Boss FS
phdanw OWa—iiyle hae ouml ig Gerold hove elt gaat Asenwedt ae
am ae eH aie. abbey. of ot Lemme we they mira mt ied 6
aefaica tise dat rete Ses ata:
AY og PhO NC GE t ich
ond haaatiaae oso tein tense Jax #t “hat dnite peewee ats
‘ :
ROLES, tet ah cpdaanmat
wh ios hid yo ghl a pen See
’ ade Rhee wr yh essed Ab Wout a ae SRO
tae oat nape anew 9 pen ott aor taba 2 pr psa sf
Aen EN at Myalys rs bry: ag HA si: | ORR
i
RR ya igs DT ea, ie ee
Humber of shares of steak and the namea of the companies Lasue
ing the same being unknown toe your oratrix and your oretrix
having been wmable to agoertain the same,
"Your oratrix further represents unte your Honore that
she is informed and believes, and so charges the fact to be,
that during the lifetime of the sald Joseph Forreater the enid
fefendant, Charlee ©. Adsit, aseauwmed te and 4i¢ deal with the
gaid shares ef ateck and money of the said Joseoh Forrester in
the hands of the #ai4 Oharles ©, Adolt and in such dealings
aid make divers and sundry aeeret prefite whieh were unknown to
the sald Joseph Forrester an’ the particulars of which are én-
known te your eratrixa, and that 14 woulda ac appear if the
said Charles ©. Adeit would render a true and complete aceount-
ing of his acts and dealings vitn the eald Joreph Forrester and
with the shares ef stock and soney of the said Joaeuh Forrester,
*¥orasmuch, therefore, as your oratrix ie witneut venedy in
the premieos exoept in a court ef equity, on4 to the end that the
anid Charles ©, Adeit, whe ia hereby made a party defendant te
thie bill ef complaint, may be esepelied to enewer the tame, but
not under oath (hie anewer under oath being hereby exoreasly
waived); that an secount may be taken herein by or under the
directions of the court; that the said Charles C, Adeit may be
Tequired to particularly and ayeoifleslly set forth and state the
amount, nature and deaeription of all the meney and shares of
atock of the said Joweph Forveatexy waich were evar in the hands .
of the eaid defendant, Cheries ¢. Adwit, or by him held in trust
for the sald Joseph Sorrester, giving the dater af all trencace
tions, the person er parsene from whem euid shares of stock and
Boney were received, wiat was done with all of the same and with
the procesde and availe theres? and speelfiealiy and exactly whet
autherity the said Charles ©. Adsit had for eo dealing with the
game; that your cratrian may heave «a dooree requiring sald dafende
ant, Gharles ©, Adwit, te pay to your oratrix whatever may be
found to be due to her uoon the taking ef such account, together
with the costs of this proeseting, by a short day to be mined by
the eourt; ant that your oratriz muy have ouch other and further
relief in the premiser as aqulty may require snd to your Henere
may sean meet, *
The pertinent oarts of the deeree of February 4, 1925,
are as follown:
"and the court hereby finds that the court bad jurisdiction
of the parties and aubject matter herein; that the naid Joseph
Yorrenter disd on the sixteenth day of November, 1925,intestate; that
Lettere of Aduinistration of Lis Sntate were issued to tue seid
complainant on the twentieth day of November, 1925, by the Prebate
Gourt of Cook County, in the State of I[llineie; and on the sane
day the eni4 compiainant accepted the eald appointment as ade
ministratrix and filed her bend a@ such and ever since has been
and is new aeting ae the duly qualified and acting adwintetrae
trix of the salé estate of Joseph Forrester, decessed; that on
oF sbout the twentieth day of December, A. D. 1925, toe sald deo
fendant had im his possession as Trustes ie the yer fone
Yerrester, a large eum of money, the exact amowmt of
not less then the gus of vifteon Thousand Sight Hundred twenty-
six Dollars and Ferty Cente ($15,826.40), whieh the said defend-
ant then in writing acknowledged and promised te pay to the eald
ie ieee
owed pelaequns ett to seane wit ban Beate to setadn Moi tod
xivders thie fay abies wey at eeartag goked woma oad gp
emer ee alatsenbe of Ssfdne anon.» ives
fake avgnet cee eee ey ep peli chee: wel ee deal sie
Pr: | ot teat ole eigteiy of he wetiod hom -vsnonetge yp > abe Ny
bien ed? doteavet Aan oS f joe esd a wma te De ene sales | ad
att §2h0 Laeb 81S Kee of bareae of iebA .o eetredd , toohae'te
me jr soget Siew sate tea vo ntqet “Baan: “sours te eons Phew
feed Hoon ck bne Fiwhs «2 aelind® Dkwe ene "te atayast =
oe ‘wn fe ape aati afPiorg teae yrhenin Dae ered ayy
0 ot doldw Te axelye tows, on? hae copneweell gape
ade CH? Nekaem of hiveow 2 fecs hee peter
“Laywees ode Lamon bine ant a tehcet Adver Ofeha .2 ant ,
bane totwor te Beweus Shae aaly oo tee: gee PoRba ee inas: rcre eh
-Meteneses, aera gt Kine adf Yo yodew few Moote Ye aeterte ot Soir
at vhowwt seourde of xiikase Leer ee poem TOM” pte maT 6 ony “bo
wate ‘fend. ew oF oc bale aedtnne ‘to ¢4pee 2 af seen avatar ‘ena
ot dumb eie Ted eens gabe ofodet al eae ,32ebA Carden biee
Sud ,omee ci Sewn of Dei dees sd Yom , Pabedgane Ro Atte aidt
Liege glegodt gried tdeo wari erede att) atine aobhaw fom
eas Kahne To Yt Mieted aiid a Yan TeNOM to geld p bemdaw
; oe “ae tiehh .5 WA kee aD Bbed wk tasks pruitog wales aed, nl )
etd etude Soe gig? aos: ‘yh ding Peigees hem Ely Seed ema OF:
‘te Betesy hate Yeaem a8s fie We nots qi vane Rae Sterten tone
ehnee et oh town otew shaw walvortod Besett Qin acd Do eete
teets Of bied mtd qd ae ,ofeha .D ewteow , niebuslieth bheo amhoto
* aeaat Ske Ba. exeee sf atte PRIeig Asser et cigeae’. sien. sunset
ihe daete “te atteds Sing ane Noy eacexveg te anweng ort -yemedd
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aie ylioae: bay elite riedae tie toguede pilliawe bon eboenete ode
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ohaeted Bane Salideper coward # 2 ean gee wateese see Pet,
o¢ Yom gevetaiy Rittero x90 Oo YOR WE Pdeha VD wo deed 1h
beat saceoee Howe To pendent @cly repee et oF avh o@ om
ed harlt bo of ged dros o eo pxndhewgere BIaY MO atwor ant:
mosey? ban vets Home ewan ge tiktets reee fet® New 7 oeweR® eas
a ne OF Seite rien tine et epee gus! act oF Seiter
‘aiteear oer a
RE ~e smashes ‘Ye aetens wer te aeiex srematene PAE Coulag
i “wrote oe ote
fee
a
we 2k Peto veh To Wh dteltawrt edt ao tanctbe.
eB 4 PRAGOMLLLT “te pvogd aby af yximral dood Va ae 5
Fasutaalees Dia eh! hodyouna tance Semen park ‘auth ead
saad ‘eel Pons Tave daw Mond pa had moat fede now
weteteiate gmites doe che BAR Gaung huh ont oe palree: se af bas
ty ait prearaned ,toteante’l sigengh Lq@ wdacas hina oat @ 3 eo
ooh Mika sae cpth ee aive eae “gedaan. te yah Keds news Me oat ee
atau? Ge. s ssingvaces, aw Bak atl Louhee't
ae rope te: rnc tomy bar Lah ty oP aT
Br mney Kovh sal daly ht dasee | ‘par
abieiwh blew etd dehy (Od
ae ow ‘on espa nh boasneng ine”
EO" INS. iii: os Set Hg
Joueph Forrester, a portion of which eoney with interest there.
on has never been pala either to the ankd desesh ¥Yorrester ni
hie 1ifetine, or to the said complainant; that the soney Firet
hereinbefore mentioned was, im part, money which the eatd Jeveph
Forrester, in nie lifetine, had delivered to the suid defendant,
to hold in trust fer the said Joseph Forreater, and in part the
preoaeeds of gale of certain shares of the eapital stock of cere
tain corverations theretofore held in trust by the oaid defend.
ant for the seid Joseph Forrentor; that duving the Lifetioe of
the said Jceseph Porrester, the said defendant asswasd to and did
deal with the seid shares of oteck ond money of the sald Joneph
Forreater in the hands ef the eaid defendant and in ouch donl.
ings did make divora and sundry seeret profits which were une
known to the aais Joseph Forrester.
"It te thurefore hereby ordered, stfudge?t and deoreed that
the b41] of complaint of said complainant be an4 the same horehy
fe referred to Wirt %. Humphrey, one ef the Kastere in Chance
of thie ecurt, to take am secowrt herein of the money so mala by
the sald Sefendant tn trust for the sald Jeseph Porrastar and of
the procesda of gale of the enid shares of eanpital eteok ana of
the seeret profite te made by the said deTandant, tegether with
interest thereon, lees the amount of the paymente made by the
said defentant on seceunt of the aawe, to state the wepaid bale
ance of said money and interaat ant to repert thea same te the
ecurt, together with the evidenes taken on anid accounting; that
upon the making of the enl4d raport of sald ausounting by the said
Mester in Chancery and upon the appreval thereef by the court,
the said defendant, Charies ©. Adsit, do Sorthwith pay to the
@aid cemplainent the ameunt of sald umpaid balanee of principal
aud interest so found by sald report, together with complainant's
eoets herein; that the sald cemplainant thereupon have execution
therefor as upon a Judgment at lav; and that the conplataant
have aueh other remedies Ter the wmlforomamt of the 4ecrem here-
in, and te onvorse the paywent of the sald goney, ae pertain te
the practice and procedure of Courts of Chancery, *
The pertinent parts of the deerse of February 19, 1926,
are an follewa:
"and the ceurt being fuliy adviaed in the premises, en cone
eiferation thereof, 4eth find that the esld defendant purchased
for the eaid Joseph Porresitar, deceased, during his lifetime two
hundred and twenty-five (725) shares of the capital stock of
Inapiration Genselidateda Conger Company, which the eald Joreph
VYorrester fully paid for; that the said defendant eollested divi-
dende om ald stock te which the eal4 Joeeph Yorrestoer was ene
titled; that the defendant subsequently seld said steek; thet in
addition thereto the defentant bad the own of Thirtyetwe Hundred
Two Dollars and Sixty+two cents (°5209,.62) belonging te the sald
Jouenk VYorrester; that thore Le now 4ee to the said complainant
fer principal so due frow the said defendant to the said Joseph
Yorrester in hie lifetine om acoount of sald money, shares of
stock and dividends, together with interest to the Third dey of
February, A. 2. 1926, the total ews of Thirteen Thousand Pour
dour Polings wid Gixty~one cente ($15,404.61),
"It ie therefore hereby ordered, adjudged and deereed that
the said defendant, Gharies 0. Adiat, do forthwith pay te the
said complainant Bertha B. Yorrestor as Administratrix of the
estate of Joseph Porrenter, deceased, the said sum of Thirteen
opted? Ford sal abby yeaa "
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‘te hae Wonie Lidimee 26 exsede Sdew acct oO: eine te eheesonq a
site setieye? ,koehtateb bina gilt yt whet oboet i lore seteet
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way pits 2iseo At cae ac? ‘te tewegee ap teotaw tek WE
z ae ‘et mins ant Prewt od fae taecndnd paw: eaaedt bien “te some ~~
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hiee o Ww galgnvotes flap Wo duages bhew edt te gatdas oah i
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~sxe wool vit To Saou. Gta any LyX. ae themen teate dome Ter
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biti * Emde ne HO te areert GS. Se eoo uM Dawe ecldeotg &
| oer" et chile te seteok mir Lo attr sonalevay OM Oo saa
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ay ne Jinn ed al beeivde qlivt gXied Moen ad pedee” Yo 8
Seretietwg towhiwwteh fine og fort Bett geet lowvedd notsaxonie
mitetit ube peiiah .hersgamb. eye teneaat Aiyoaws Bee OXF Te
) toate fat hone. mit to eexeta (289) wee Phont aid” rina heed sane
’ ett gad a ¥ewumed Pashia cad Badan sine? sot hos towed
tise. Ang? s0'S0d , biag dat jacd,; sek ndtag Elkat weaetreT
weds ore’ oh Diee aie olde ad leate Ries ao aba
wi tae 4a" od pete torah ert suahan tab wilt —, aited ¢]
ort o wen aeted od? otere
| oy v3 pid bere (ea.eueee } staan avdey tal pow pelt vw
dente Lanes ‘Rise odd of aah won wh are at fast siotaeyt at dommal
Hewagh thew wd OF Vibro Tete Flee eAY ort Bah on yo gah t0%.
‘te. B sgrine lt yeonew bigs ‘to Foneese Wo amie Til etd wl weday
te 2 4 pam ast et sewte sal Behe Raids: fed ahi lw hie re
MAT ay e
oye ot. > Te
Thousand Your Bundred Your Dollars and Sixty-ons cents ($25,404.61)
together with the complainant's eests of sult herein; that the anid
complainant have execution therefor as upen a Judgment at Law;
and thet the sompiainant have sueh other remeties for the anfora
momt of the decree herein and to enforse the payment of the said
money as pertains to the practice ond procedure of sourts of
cory,*
There is ne subetantial dispute between counsel fer
the defendant and couneel for the complainant in regard te the gen-
eral rules of plending applicable to the ease,
Couneo, for the complainant maintain that “in testing
the sufficteney of a bill ater a deoree pro contaseg 21] matters
weloh sould have been reached only by soncial demurrer or metien te
make more definite, m4 many that could be reached by general 4de-
murrer ure regearde! ae walved, and the most libersd rule of cone
etruetion ie adopted in. fever of the complainant ond overy intend.
ment in availed of that #111 make the pleading good,” Ceuneel for
the defentant concede the correctness of these contentions, but eon-
tend that these ruler “are of no practical for¢e unless the allegae
tions are ambiquous er susceptible of twe aenstruetione;* that %4t
fa not #0 much that the bili in the instant ease ia anbigueus in ite
allegations, as that it Le lacking in sesantial allegations of Paste
to establish « trust.”
Counsel for the complainant further maintain thet "while
a decree pro sonfenso concludes » defendant only ae te the feete
properly alieged in the bili and not us to sere comelusione of law,
yet he fe eongluded se to the allegations of ultimate feate which
may consist, as in the instant case, of conclusions of faet draw
from the evidentiary fscts.” Counsel for the defendant conceded the
familiar rule that the ultimate facte and net evidentiary facts should
be pleaded, but maintain that in the aase at bar the bill ef comp) aint
does not "allege sufficient facts under the well settled rules of
Pleading te sustain the decrese,”
MAN
ee
It is on elementary rule that a decree can not be
broader than the bili; that a complainant must recover on the case
made by hie bill or he cannot recover at ali. Gregory v. Gregory,
323 Ill. 38, 385,
In regard to a suit in equity brought te establish and
enforce a trust, the general rule ie thet the bill must allege with
oertainty and distinctness all the facts relied wnon to shew the
erention and exiatence of the trust. 39 Cyclopedia of Law and Pro.
eodure, p. 621. It is alec the rule that in a suit ageinet «a trustee
for a breach of trust the bill wust allege facts showing a breach or
violation by the trustee of hie trust, or that he has deelined or re-
fused to carry out the trust according to ite terme, or that he hae
denied the trust. %) Cyclopedia of Law and Procedure, pp. 623, 634.
In the ease of Crear vy. Farmers State Bank & Trust Co.,
206 111. 454, im discussing the sufficieney of the allegations in ao
bill to establish and enforce o remulting trust, the court sala (p.468)3
"The law ie clear that chore a resulting trust ie seught te be
established an4 enforced ‘the trust must be clearly alleged in the
bill mot only in terma, but all the facts must be set out from which
the trust is claimet te reault;' ** that the pleader showld state
in hie bill the speeific faucets conetituting the aubstantial ground}
work of hie case, ani set loose or general cencluetons from those
facts nor mere matter of argument; that the avercente should be
positive, certain and wiaebiguoue,*-
In the ease at bar, an we conatrue the allegations of
the bill, no facts are averred which show the nature of the trust
betweon the 4efendant and Jeseph Forrester, The terme of the agrere-
ment between the defendant and Yorrester which created the trust are
met averred; and there are no facts alleged which would shew the
mature of the original tranesction between the defendant and Vorrester,
out of which the trust arose, Whether the agreement sreating the
trust was written or oral doce not appear from the bill. No facts are
alleged from which reasonably it can be determined an to how the de-
fondant hono med te hold in hie possession, as trustee for Forrsater,
the sum of $15,926.40, In other words, the bill doos not allege the
om ton mao neweh « fede odue Wie saeien F me ot a7 ROL TO A
‘ean a0 as arabes dot aneaeeend Fy sal othe an eed
“ort bam vai to naseaiton? on ase wee wate te ta ye A wt ioe r tC
pettune @ tondenye re ae | want ‘tus ott ‘ead of fhe « ivuses i
to dnnetd a guiveds bse pyolio tema ‘Lite one aayed Yo space add ter |
wn 8 pemtlews ved of tae? m0 “eewtd old te oe tound coal ‘ed fold tdty i
god wh ima 1a ,warcid 4e 8 ot Anihtebon Past ‘eat sue so “a ‘baal
nt bed bank “alsapeniade baw wma Bo ahiegetoes dunes one “bw Laed
. coe a wt nes a nl eh cdl
pIe Ost gah? Roane t oMtlesee eft LOS 4
pelo omy ena terran
® thanoung Sehwuanttyy stg EMOID 9 in
etn tavondan ot wttnsne we 9 tet Meena oct at,
awed oat Yo aundea, oft wots, dotaw Sereere ae, 9200 om ohtps, ott
ed
ote thud ode dodente Hedin woanerso% ban fawdantph acty. movies ve
onilt ae dhwow ae. poge ttn, nec lail Pm, omaAH Daw IDeEIEN.
f TEM ccs
Rarer an Nise aa (Uh eas
Ana aera ¢
te nN Os)
Rat:
| A ioe
j i
7
Ke vie
on 900 808
ttt owe perth ey ag
a
faete surrounding the transaction by whieh the $15,426.40 oame inte
the defendant's passeasion; nor does the bill «allege the terme ma
gond4itions on which the defendant held the $15,926.46 o8 trustes of
Forrester, The bill alleges that the defendant seknowletced in
writing “which Tete] anount of money" and “promimed to pay to Tote} *
Yerrester, Preewsatly these sliegationa ure intended te mean that
the 4efentent acknowlseiged in writing the receipt or possession of
the money and prowieed to pay the money te Forrester. Fut the
written inotrument referred te in the bill te not set out in the
bill mor attached to the bil) as an exhibit. Kor ie the eubatance of
the written instrument stated in the b123. It ia alleged in the bill
that part of the 315,426.40 held in trust by the defendant for For-
rester consisted of *the proceeds of sale of certain shares of the
eapitel steck of certain ¢orcorations theretefere held in truat* by
the defendant for Yerrester. Hoe facts sre alleged to show who made
the sale, nor te shew the mature of the trust for which the defendant
held the proceeds of the sale. The b121 further sllegea that the
4efenftant “assumed to and 414 deal with the eaid ahares of stock and
money* of Yorrester, "and in uel dealings did make divers and sundry
seeret profits whieh were wskreown te" Forrester, “and the particulars
of which are unknown*® te the coripbalnant; "and that it vould so ape
pear tf the”® defendant *wouwld render « true and complete accounting
ef his acts ant dealings with” Yorreeter “and with the shares ef stock
an@ money of” Poerrester, There ore no allegstions in the bill, howe
ever, which would anew the natere of the trust by which the defende
ant received the uwoney snd obtained the shares of stock; snd there
are ne allegations from which 1t would appear that the defendant was
guiity ef a breach of truet in doaiing with the soney and the shares
of stock, Wurthermors, since the bili does not state the length of
time that the trust was to continue, reasonably it cannot be presumed
thet the defendant hae violated hie truet or that he ta under a legel
ebLigation to render an acecwnting to the complainant in regard te
ated omnn Ob GOO, 0L8 ent cabin gt sebaiesnciouned out ‘junk wero-tewe pan
eg heenwwe /ehaiipsaneiet :
te wadared ao Oh ctieegncts atte Bent Huatatten nth il tone ‘nha alah, Moab
ab boytefronian funbae'teb ext Catt weyetie Efhe wat detownedt”
eee Re es ee ee ae ad ants ew ,
duel? adem o¢ hohuwsat om naehtage Lfe omit’ qiitdinlewdt” vasteweeet
te selentatog we M4laseT ear hd Ed fogbe fwomtan Somatinus"ob eit”
ad? tua .Yotapsxet ef yonem ot yale OF Kelibtody few to iol wit
ens ah fae tee Gon ot fnid our AF of howraton Sematdeist iedilhew
fan do Nd tod oben ce es Ce el nici reel en
Lite site nt fieig ttn Se ee aes Por ot
atte tot dimtco'toN ould qe guia it Bteet ee sae ditt
bd ew se eM niger ae Ss iia twncy tetas
“gets eh ete dois iledaciaiaeai ail nse Monte rte
vse ar Oo nee te al hana owteedaet aot ,
palletes otecats be ny a webs hie ae ,
| Moots Ye npracin ad, if to bas, 10s dae reek Sa a . - DM
Bec AER +t ab “ode $0, on mM, a aaa sna a da : : yeaa i .
S90 8 I, 1% 108 o¥
batt ‘ x Wes
the trust. Horeover, since the Bill 4oes not show that a demand
has been made on the defendant for an aca ounting, fairly it can
not be presumed that the complainant hae treated the trust ap
having been terminated.
With the exoeption of sueh phrases as “trustee for
the eaid Joseph Forrester, * "to hold in trust for the asdd Joseph
Vorrester," “held in trust by the said desendant, Charles ¢. Adeit,
for the sal¢ Joweph Forrester,* there are no other allegations in
the bill that ressonably could be construed as alleging a trust.
In our opinion the allegations that we have Just quoted are mere
conclusions of law and net allegations of witimate frets. Alexander
&e., 140 Yea, $i, 625 Re et, bat Bae I % iy ; ,
a4
rust Co, vy. Colymbys, Sandyeky
Soymour vw, Hechanios & Metals
wk of City o fork, 177 HB. ¥. &. 403, 405,
In the case of Young v. Mercantile Tryst Co., supra, it
wae alleged that the complainant delivered certain securities to the
& Mocking B.A, Go., 9% Fed. 629, 099;
aefendant as trustee and depesitery, te held and thereafter distri-
bute ac firected and autherized by the complainant; that the defend-
ant received the seaurities and accepted tha trust; that the defend-
ant violated the rights of the complainant and violated ite duties
as trustee to the complainant, The court gald (pp. G1, 68):
“How the securities were dissesed of, whether by wale or
distribution, what complainant's wishes or directions were, or
in what particular hie rights had been vielated, dees not ape
pear, *** A sourt of equity doubtless has plenary pewer to
determine the rights and liabilities arising between ao trustee
and the beneficiaries of a trust. It ia evident, however, that
the general allegation of trust or trusteeship, together with
the object and purpose of ite orestion, 1s not here distinetly
or sufficiently averred. 4 ia pertinent to inauire, what did
the defendant undertake to do other than become depositary or
bailee? The character of the trust, its #xtent or purvose,
andéd whether in writing or by parel, is not disclosed, The essen-
tial olements of a trust, viz., ® beneficiary, a trustee other
than the beneficiary, the subject-matter of the trust relations,
ané surrender of the property and transfer of the title te the
trustee, are not well pleaded,*
pleut bay) wile Sie ee hake wt ope,
‘nae “We yieae't bet Panties ca. x0% sobaates waht, noon m0 20
ee soves wile ‘seed: net a wake ee
cot betnire >” Be ehamety von ee aoteanexe ode. om, shot cate |
sania stew mitt we saws ma Si - * bpesmreasyn ae ,
Sa a tel ee SE
ro
—— +. ee
% ;
+ ws
it ere ‘ we.
‘ae a tie Pelt ats + eteentatqnan, oat ba soetcentan Dew eo
neal at dokt ;tuiem. mis nsenege, bag sees a
or dake ee
ot sosaues aa
anh ng amen.
Peed tee) ‘vo xedtanetoe kiya
went #0 eteas oa} he moteaane. one: , we
A Nee. oY Hip) aie KH i iMate " (0 yo D8 4 pa ¥ ’ i
' ; Healy " Awl ad Raz ie 98 7
A AE A i oa ine: roth Si A a side” ei iA be
Rae een ees ts ,
Sm) arth) es
In the @ase eof Alexand
the court smld (pe 74);
"The avernent "held in trust' ta a Legal conclusion, not a
facet. The fact of whether the trust is an expreras or conetruce
tive trust, and, if the latter, the fucts out of which the ine
plication of a trust arises should be etated.*®
In the gare of Bi
"It ia eaid that the avernent that Seherst wae a truetee in
holding the legal title is the averment of a Legal conelueton.
I think that this obiection ie well tuken, The bill io in thie
sepect an action to declare ant enforse a truat, ané the facts
upon whieh the alleged truet ta asserted, whether by reason of
an express declaration or by olreumetances, should be set forth."
In the ease ef Seymour +, Meckanies & Metels Neti onal
Bank of the City of Mow York, supra, the following svercent was held
to be a conclusion of law (po, 498):
“That the interest of the estate of Themes Wiliiawe, deq
eeased, in the iiechactes’ Bank, by the terne of the various
agreasents of aoquisition snd consclidation, was received by
the Kechanics’ Bank of the City of Hew York, ond, through the other
predecessors of defeninnt, by defentant in the capacity of an
agent, truetes, or PMdnelary.”
In the gare at bar the deerees are bused on the theory
that « trust relationship existed between che defendant and Porras
ter. In our opinion the sllegstions of the bili of complaint are
not suffielent to fuetify the deoresse,
Por the reneens that we have atated the deereen of
the Chsnceller are revereet oni the cause remanded,
REVERSED ABD REMANDED,
MeSurely, Pp, v., and Batenett, Tes Gonmeur,
| power one Pte aed sal ‘eseteah ‘oat Bah
PAL la Sie ¥; . *
aia ENS ea
Vein ae Tet
oe sayy) 1, °
gai He
f sec ihc
179 ~=6- «631521
AAROGH KUEN,
Appellee,
Te
YSLLOF Cab COMPANY,
Ae KBAL PROM
AUHICIPAL CQURT OF CHICAGO.
D
+r U
a corporation, o a | eye
. ko A 4 Leite w) fw O /
Appellant.
oe
i
ee ta Pe Re A ee eee
Mi, JUSTICR JOMNATOM SALIVERED THE OPINION OF THE couRT,
Thies is an appenl by she Yellow Cab Company, the
Gefendant, from a juiguent on tho verdict of a jury in the cum
ef $200 in an action brought by Aaron Aukn, the plaintiff, to
recever the cost of repodring om autemebile, which, the pleintiffy
Alleges, was owned by Kim ond which he allegea wes damaged in a
eeliision with em autemebile mmed by the defendant.
Ia ite affedavit of merits the dufendent everred
epecifically that the pleimtiff was not the owner of the automobile.
Gimee we are of the opinion that the prepomderance of the
evidence shows thet the plaintiff was not the owner ef the automobile,
it will not be necesoury to state or to discuss the ovidenee in
relation to the queetion ef negligence.
At the time of the sovident the automobile which is
Slleged to have been owned by the plointiff, wae driven by a
chauffeur named Dwight Semich; ani the occupants of the sutomodile
| were Car] Yeil, the son-in-law of the plaintiff, and ‘eil's wife,
the daughter of the plaintiff, Weil and his wife had gone to the
theatre in the sutemobile. fter their return from the theatre,
the chauffeur took the nursemaid te her home in the «utomobile.
“hen the chauffeur wan returning from the home ef the nursemaid
om his way to the garage the scceident occurred. The state
‘shan th Me a
hae ad od St MO 5
me.
oho
license for the sutomobile was in the name of Yell. The repairs
were paid for by Teil. Wo bill fer repairs woe ever rendered
to the plaintiff. Bemieh testified thet he wae wired by the
plaimtiff to work for him, and that ®efl asd his wife ware procent
at the time. Bemish also testified that at the time the plaintiry
hirea him, she plaintiff gave him “the keys“ ond teld him the
sutomebile was 2% the ‘ilierd Garage.
Z. Ss “Gimh, the driver of the defendant's automobile,
teetified that after the coliision he ssked Semish for the nome
of the owner of the sutomobile thet Mewish rae driving, and that
Bemich gave bim the meme “ofl. in hie testiuony Bemiek admitted
thet he told Gnleh thot ‘e112 wan the auner off the automebiie.
There ia no tevtimeny «whatever cx te vhe poid Bemish for hin sere
vices. he plaintiff dic mot tectify. Be wes in Sermany at the
tine of the trial,
Counsel for the plointiff contend thal th: ovidence is
sufficient te show that the plaintiff wae either the ownar of the
automedile or wae a Wailese lawfully in peceeasion ef the automobiles
We do not think thst either sentention is correct. As wo interpret
the evidence, the plaintiff was neither the owner of the automobile
nor a bailee lawfully in poxseersion of the sntomobile.
Yor the rensons atated the Judgment ic reversed and the
Cause remanded.
BEVERHED AMD BUMARDIED.
Neturely, $s Je, amd Matohett, Jo, conours
298 = 31430
WORERT EB, HICKS,
Appellant,
ie APPEAL ¥RCK SUPERIOR CovRT
WRIGHTSTILi. FOODS, &. 7.
HeCARTHY, HARRY &. ALEXANDER,
JOSEPH HAGH and WALTER b, NANRIS,
- Appellece,
OF COOK COUNTY,
& aoe nl
y, /%
re cr a eee Fi See Se He
= \
Cy Ws) i
‘
Fe “i “t ZLeolle UD) & 6
BR, JUSTICR TWHRSTON WELIVRRED TH4 OPINION OF THe COURT.
Thie ie an appeal by Robert BE. Hicks, the plaintiff,
from a Judgment againet hin in an aetion ef trespass on the ease,
brought by him against Yeightatill Foods, &. 7. HeGarthy, Harry G.
Alexander, Joseph Nagn and Yalter 5, Harrie, the defendants, to
recover damages allege’ ta have been sustained as the reenlt of
wrong?ul acts committed by tie defendants in psurauance ef an
walavful conspiracy.
The defendant Harrie was net served with summons and
4id not enter his appearance, The sase proceeded only as to the
other defendants.
To the declaration of the plaimtirr, ae smended, the
defendonta filed a general demurrer, ‘he court overeruled the
demurrer, and the defendants filled a plea of the general tesue and
a special plea. The plaintiff filed a general desurrer te the
especial plea, The court overeruled the plaintiff's dewarrer te
the speoial plea, The plaintiff’ eleeted to stand by the denurrer,
and the court entered fudgmont in faver ef the éefaniante.
The substance of the asended deelaration, as stated by
eounsel for the plaintiff, ie as follows:
"Taunt in Decesber, 1022, and for a long time prier thereto,
the Robert &, Hicks Cornoration, au Illinois eorveration, having
@ capitel stock ef $10,060.00, of which $7,450.60 was terued and
outstanding, was engaged in the business of publisalng & maga-
sine which had a large circulation; that many persons, firus and
eo ations advertised in said aegurine; that eaid corperation
ved great gaine and profite from the sale of said magarine
and for advertieemente publisied therein; that the principal
Place of business of said corporation was at South Whitley,
Indians; that said corporation was prosperous and solvent,
“i asa eo ae
eam ey 4
"That the charter of sata aorperation provid :
directors; that the plaintitfr oened 631 sh Soturiny akuee
2 shares, Alexander owned 61 shares and Joweph Magn owned 20
shares of the capital stoek, and that all ef sald steckholéers
were direstere; that olaintise was the president, Hagm the vice.
president and Alexander the treasurer; that plaintirf was the
editer of asid magazine and manager of the business ef the
eorporation and had @xelusive charge of ali of its af'faire:
that hie salary for 1922 and 1022 was fixed at the sum of
rire. per a
at said delarthy head been the seeretary of eaid cor
tion; that in dareh, 1922, he reaignet an nish weakdhary wan hs
resignation vas acveptied and thereupon he e¢azed to act as such
seeretary; that said Alexander had been empleyed by sald corpoma
tion and had worked under the direction of the plaintiff; that
im June, 192%, sald Alemanier quit hie said employnent and
thereuven ceased to work for said corporation.
"That the term of office ef all of the directors ana offi-
eere expired om the firet Tuesday in Pevruary, 1922; that ne
direetorse or officers were then alected; toat they all held
ever wntil their euscessore should be slected and ghould guabify.
"That during the entire poried that defeniants koCarthy,
Alexander and Magn were directors or afficers of said corpora.
tion, they 414 not take any active part in the management of
the affairs of esi4 correration, but with their consent the
Plaintiff had exclusive charge thereof an¢ of sll persone doing
business “ith antd esrooration knew that platntiff ued long
been ite president and general manager and the editer of eaid
magazine, and hie cemneetion wlth sai4 eorseration was of grout
value to said corporation and to himsriff; that all persons deale
ing with eaid corceration traneacted their bueiness with olnaine
tiff, and #11 remittandes were wade to anid corporation at
South Whitley, and were deposited in banks there, and ell of
ite business wae trenesctet an@ eli of tt@ beoks of aeeount
Felating to ite said business were kept at South Yhitley; that
none of the defendants, except Alsxandeb, at any time hed any-
thing te ¢@o with the wmanagenait of said ousineas and mene of
them was known in connection therewith.
*Tiat in November, 1922, the defendant Harries, through the
efferte of said Yooda ond Alexander, purchased eleven sharee of
the esteck owaed by Alexander, net for an investment, but Tor
apeculative purposes, and with @ view to eelling the smn to
plaintiff at a price in excess of the amount he paid therefor
and in excess of its value; that all of the detendante were
desirous of welling their stock; that there was no market
therefor and they requested plaintiff to purckuse the same and
he refused to dv oo; that thereupon defendants McCarthy,
Alexander and Hagn employe? the defendant Woods, who was a
Lawyer practicing in Chicage and had been and was then acting
as attorney for a persen “uo was plaintiff in certain auite
goin wt 4 sorporation, to assist them in making sueh sale to
aintifrf.
"That before he wae reseved an president of maid corpera-
tion as hereinafter allege?, the plaintiff ee sueh president
Called a special meeting of the stockholders to be held on
Decenber 30, 199%, for the purpose of electing direstors to
eucoeed thoes whose terme of office had expired and those whe
had become disqualified. ,
"That the defendants Srautulently an’ wickedly conspired
and eonclused together “or the purpose of cosrcing or inducing
the plaintiff, agsinet hie i131, te purchase endd stock so
Owned by them at a price largely im excess of the actual value
He a a See
op Cee a
pe ae a
A
3
wit vet heXivexe ooléatenti. bieaa te Saad ane secre”
Pe edtnabed sxoteds SD baues Ti teatedte et va sed iesedaoet
TR Benge eggs’ soiled han wre £6 bewre tehiwxetA , weresl
ave itecioote bien te lig jade tne .soode Jegiqes off Te etn
agoivy god agai .dowhinnag att one Vihdatake fads og lg dene il
at Rae y basede lq taste pawtgeaows emf) Set ete gpa we
adit Ye aebedeud ocd YO Soquem poe ptemger Bisa a
jotiotle e€f ‘te ida Ye ogsade ovkeetone Saat Bad pot; t Che
‘ka sae este jo peel? awe ORE bee 29% eet vedas ald sods —
rR LMG 200,088 ;
etoctes wine te “istetees. ee aed fies yiiduaGet blew dant? - -
ede hers, ETA LO9e Boye fe Seapiart. on a PK OL Py 3 md. Haut. ; aoe
done oa thu ef Sennen Gh Roqueneds me a baeleeinell bor Myhiangiget
amovnes bias yd Ne ya dgine awed tek eehanre ta Slee Qadt pyuetemeen
fests rKtetalate oat to mektao xcs ane aha bouxaw fee $s tags ‘ants
hie taamioteas Bier wit tia wieeweds Blot {BROL naw ab.
soktovenies tier wot S497 ef feaaed, megee ae
often bas Brateants wey Yo Loa be partio Se wane eat Zi pO Rss aioe
om fer She _cteerwde’ alo wpbeest a7) ot wo bord ot. P
hod Lie coat tacs jheivots aad otew ag ag suse se sph
aay " b bheoih bie betooke o@: fives Sqanmegorne be ie vo.
a EK aAAGAcTeD GREP belrse ee hiram weld yh
eroy hice ta ween koe, te gaguenth wer aye cael se rm Devan
3 yd eoneye sim eek. we Pie er Plee “ae eter fan & we oh yee
OM? dombson twkedd cehy ged, g ft Sa gern si boee Te Sout tbe aay
gatoh edenape Sta te hee When syvete oving tex - Sant ae Besa d%
prot tad tthintate tece yeok mmitoreeren Sing. aa tou 88 Ct. ae
ties to Yeeade oS Hee tegecem Letecay bam tadht ‘ef} uoad
faety to eae noliterqosan bien vaiw aelioe arm w bet. teow oatmagan ws
ahead eaueon ily tote Akecabe ef ben swhdereeves kins od ouior —
ce medtwraq tas: Pre nd shaw aoe eopeeti tawt Ii ban £3.
Yo Efe foe , e448 sane ad. batt onnnt ow Are , ye ie he. an val
fougaoe Te ehood obi Yo Lie hae bei oan derd caw Meaeus | ee
Sans peelsiae Kaye ta. dont oven weeded bbann atk of gm rire
woe ha aah! win fo ,aehawaeie Yypone .sisabiw toh ene ao enoe |
te ‘milla fave minmadraed bien te timomgemen ade dade oh ed |
ttibrewerl? apldveowee al oeocd asm ie
se diamines wade tak toh we toe end geek ,sedenrek of fait"
‘te get TPTEels deaxtioxwve etebeenate 2A hie aboo® hia Ye sete
tet ded ,dasetuerad ae vol ten , twhoetA et hanes Reade,
of he BAe Radi ion oO ewiae a odky tim joumectag wide iad
“oe towdss Shag ov tapes edt ‘le sapere «eh Ce ae | Vussose
ewe eeiwtiic'ted vie Be Lip dacs powtod adh Yo wenene af)
geates on sav acod? Sadd, gaoode rated? gutica he # ‘ona
bow caw Ad Atay Of TElvalnda batorgsos yele Yea: ei jee
eWU98K Atabng teh Begrevwdly pest fom od. at ‘tor oat
ata aay. ote yebor Sect tox od hoyotiow ayel fan webnaxelAa .
., tee ane Bae bor Sewd Seal hae egerndnd wd gate Moone ene
widen ahadvey at Wtalnia sow cue aoaten a fol Yontotsa ae
of atin aovaee ype Aston wd ach Ssivew of .Seddarearen Mam, ten rr
antoyiae bien te eerrery ae baw enieny Rew ti...
sebioore sow ae TrRdale te st oo, “
co bier oa et exe Lerttoota at te pate “as Rey ve
» oO we odeeeth tetaan a to whontwn. 9 OL. ane
cabanas bres & tah ha goto Teoma deo stat OR Oa
‘wondetitien: eter hayes Seah an th we ts ee
patie vik de nabwrwod ‘to soe re eel? Rt. Ree. |
gh diode phee gb fondle aie eRe Mutlaae. 9 T
owkar tani t60, wt ‘ve senean YAOMET wokiq # ta mos
=tialy dtiw eeeatued vied? Datownanee mabewsaetge hiae Praga eye bis
eit ht
theresf; that in purmvance ef euch conspiracy said defendants
@aliciously, vilfully and »rongfully committed the following
evert scte:
"{3}) ‘They agreed with each other that sefther would
gall his steck vithout the consent of the otters am¢ that all
of it shewl4 te descaited ~ith aid held by Yuoeds subieet te
their joint order, an¢ that neltver would oe1] bia eteek te
Plaintiff wilesa plaintiz’ purchased the steck ef the ethers;
that the three defendants “he constituted a majerity ef the
beard of direstors of wai eorseration *ould seeume contre] of
ite affairs and cust plaintizY frem the management thereof,
notify all employees, creditors, banks and ether pereens deai~-
ing with sald cerserstion of euch changes in its managewent,
and etherwice interfere vite the affuire of said corporation
and vex and harfass plaintiif se that he would thereby be
coerced 264 induced te purchase eald ateek of the defentants,
and that they at ence entered upon the serferusnece of said
ement.
"(2) They delivered said stock te said Woods and he ree
tained possession theresl.
se 3. BRetarthy seeumei the effies of seeretary and seted
as such; the defendants whe were direetor@ end of fivers of eaid
corperation eslled mestings of the ‘ireuters and at auch meet-
ings they removed olaimtiff ae prasicent, elected Sarris a die
rector, employed Yoods ae attorney for said corporation, es-
tablished the office of the corseration at Yoods' office, de«
manded ef plaintiff that he surrender te thes all the reeorde
an4 beeke of the earcoration, reduce4 the selary of sieintiff
ae etitor ef sai4 sagazine te 215060 fer 1992, after his ser-
vices had been rendered’, directed thet the debhtere of sald core
poration be notified te make payment to then at eaid new effice,
that all banks ot South Whitiey art «11 empleyees an¢ other pere
@one the had 4enit with eai? eorceration be notified of the said
acts of the direetors; and im sil reepecte said defendants exer-
cieed exelusive contrel sn4 menacenent of the affaires ef said
corporation; an4 that they sent or caves’ to be sent all the
notices abeve mentioned.
"(4) After thay receivei notice of the epocial meeting of
the stockholders ealied by the pisintiff as sforesaid, the deq
fendants KeCarthy, Alexander, dagn and #ocde wits the knowledge
and approval ef #214 Harris vrepsured umd filed a bill in the
Cirevit ecurt ef Cook county, in whieh keCarthy, Alexander,
Hagn and the said serperstion were ecmplainante; and asid Foods
aeted as their soliciter, and the plaintiff and his proxies were
memed as defendants; that said bill was verified by the affida-
vit of Alexander, ond therein it was faiseiy alleged that the
Plaintiff had, in many reepects detailed taertin, siemansged the
business of the corporatien; bad cenverted its funde to hie own
use; that he was indebted tc it in the sum ef $5000; that after
his receval aa president he asd continued to ast as such; that
the notice of the special meeting ef stockholders was without
effiecial sanction and could not luvfuliy be held; that if the
meeting should be held the plaintiff would remeve and seerete
and 4iecipate the funds of the eorvoration; that he had resoved
and @ecreted the bocks, records, property and effaire oF said
eorveration; that by reason therenf the property, powers and
fights of eai4 corporation were in danger of destruction and
irreparatle lees would result to complaints and complainants
prayed for an injunction, etc.
——i a Oe
ne ee ee era Oe eee he ee
eth
se Weadale ty ue las vad Denaiber ,selievectes 9
“ eegee ht tad te, SOL set OONELS cs enlzagat if
Bisse adz te he ticece sf -afatserenres thee 22h. £ Seek
ed @acshoe tah Sian eteeeeet fis ah bar pecetoeTE®
em : ‘\ p BOSSES oe
- gat ore dan pie tg egires kevieses wane eoeta
“Seaw pelesee ef Gap Wiiisiele ott bee yeotiebior udee
. pe gas. $OOCeE Go wwe ack whet bs Raguent ae
sini tah See: eee Moai te pot chal taste he
eaisekie® eee iseanianeniioal i ee cares Pee arguing! * faew2:
: niger: setiien, genie mudee epee do be Seana eet : oa
iin dads bee evolite e22 isn sapraca ade dumdt ie te:
af fects ) @hout ot Aded fue ff te bed teeeek eat
eh Sake gle. Siow bagew werd lea feds Sax ,
remeaio ont “is Yeaubs ei? boancdetere Tiitelede
42-20 ytisetem.o e053 lraace. och atasiv ty,
X¢ fetiate sxuvae Bisew aoitaieatas Aisa a ere
ss“ teeued? omnegemee odd mort Vil salate gees Sh ate
Shah, Beeeg wits sme atasd gPTHLRSTD ,REAYSS B 6
. State te 2e2 Bi edygeeic deus to anlissogios otew tiv gal
maid: wg SR ise te eziaTie ef2 asie - e
qteiedd Sienw ed gang cf Tiivainte
ea was Re does bse enstiergg oF
Sine oS coammer iting ans soos beta :
ai at heres ahaa iia el deess thee. bones, <aitt :
ee vc 8S og pee
eedas ne: or %o es tT re att Ss seayieas
toe te: Bisestie tae eteteer hh esew ecie atu
ofeen Kens 34 See steieers: ole is e_siioom te ae
aiS @ sivtel ietieis pushivete os Tibiale’e Ser
«gs ,jcltetectes BieR «elt yesrtetie as saegt Ss
eh. (gaettia ‘ghost te agltarerves et? Ea aed Te:
ee Ase SSe-mate gt cetvert«c ef tert Yes
ad
i fies te WECSESL oh} tale Baden 62 28 te eee
(eel Tie Sem biee Fa satt af famaceg sise 22 ee Tt h
oie weite tae sseyedque Cie hae yelt hee ctysk te
fies Se aches ody Se dices fae fers aesoer
sap Geel tees ad bed ei eae ae tose A tend Sgeie bru
eR ext eineenste ah thitateig acd yd belize Bis 4
@pieieeak ong “the ebaoe ham agek ,teheonels ;oasteds
ee ai ££i4 #2 soft Se Seaseeeq attcel | haes ‘> i
, wheats iA pelfveted gaide oi ,yiusge eae. te oemes
aboot: Sieve hoe pstapodeigmes ovee wedsetosted Dive 283
wahitte ant ued bbftiges sew feae Siae gadz- ped .abustes ac |
Pel $283 “hegatie (feeisi age 92 akeuert beer shuns he ae
is ,Rietete hesicteh steegset -geae al , bed bee
ato $28 of. aha? sdi- Secvevues hex j;apdteverres aa2 ‘te.
tes? jiioee ened ge bauaitges tei af tachisate ea Zaee ain
tek. io gatkeoom telgese sae tes teen 28
*(S}) The complainants in said bill ebtained as injunction
as therein prayed, *ithout motiee ts the defendants therein, re-
straining the kelding of said eteekholders meeting, and reatrain-
ing the plaintiff frem interfering with the wanagesemt of the
business of the corporation, #t¢., atid caused it te be served
en the defendants nasied im the bili,
(6) ‘the 4efendent Sarrie, with the knowledge, anproval
and consent ef the other defendants herein, caused te be pre-
pared ané filed in said cause an intervening petition agatast
all of the parties te the original bill, wherein it was falsely
@lleged that the plaintirf had been guilty of missanagenent,
@igheresty and corraption, substantialiy es charged in said
eriginal bill, and orayed for the eepeinteent of 4 raceiver
and that the affaire of the ecrperntion be wound wo an¢ the
eorperation 4isesived.
' #07) The defendant Ycots thereuven prepared and filed
the anewer of YcCsrthy, Alexander, “aegn and suid serpsration te
sai4 intervening geetition, in and ts which anewer it was admit
ted that all of the aliegations of said petition were true and
that a receiver shovwl4d be apoointe? for the cormeration and ite
Business wound wp ant the cerperation 4isasived.
®It is further alleged in anid amended declaration that all
ef eaid allegations made in #214 bill and petition were false amd
that the defeniamte knew them te be faise; that Weods oretended
to te acting im the interesia of suid sorperation, wheress in fact
he represented only said KeCartay, Alexander end Hagn; that said
Gill, affidavit, petition and answer were filed and ssid injune-
tion was erecured for the pursese ef enabling LoCartay to continue
te act as seerstary, and KeUarthy, Alexander, Hagn and Harris to
eentinue te act ac directors and efficers of sid cervoration, so
that they might deectroy it and impair the lnvesteent ef the plain-
tiff in ite eteck and continues te harass and vex hia in the manner
aforesaid, an4 thereby cserce ané induce him to ourchase the, said
ateck owned by defendant; that the said acte ef defendants: caused
eenfusion in the affaira sf said correration, its empleyeea vere
hampered in the discharge of their ‘uties, persons dealing with
the corseration were thereby annoyed and said cerseration thereby
suffered great joes in ite susiness; that said cause was referred
to a aster in Chaneery and evidence wan introduced by the parties,
“It is further alised in said amended declaration that all
of sais acts ef the 4efentante vere committed in furtueranee of
gaid wrongful eonesirscy on4 agreement, that as the reeult of asid
sete of the defertants said plaintiff wae compeiled to ané 412
said ateck and paid 87500 fer steek ef the face value of
10; that thereupon «aid defendants ceased further te presecute
gaid bill and intervening petition an? that they vere both dis-
miese4 for want ef equity 284 the defenitants thereupon ceased te
amney an4 vex the pisintiffT.
"That by means of which several premises the plaintiff has
been injured and has sustained jassces, the business and eredit
ef the esreeration vase impaired and thereby plaintiff sustained
damages ag s stockholder an¢ as an officer and «spleyee of said
gpg ea te the damage of the plaintiff in the eum ef
000.00,
The special plea of the defendants is ae folieve:.
"ana for a further plea in this behalf the defendants,
Weightstill Yoods, &. J. kcCarthy, Harry 3, Alexander and Jeseph
Hegn, say the plaintiff ought not to have his aforesaid aetion
er ey ed ee
i > et
aS ee Se es eee
ae een ee
Le eee
ee eg a a
qs |
aolzvente ae teatetde that nine. oe sémniatanee ot. "enn
~St ,@ipeedd oSaxhemink et@ od: wadics deodtiw ghogere. ale ae,
ocieiiest bas ,yeidees steiledéescte Glee te gaibied ect. gatake
eit “te } semis tee eae ae ee Visataig ont :
bewsee od BF SS: scceaitedl kta yee .celieiegies sad ta, rand am,
#82 ad hemes ane aaess ;
ievenqee sntcteans: 02: a _geienet: #ae+30 ted eafh
“e2g 22 ag avense .aieved abachos ish aackia oda. Teds
aralate anisties guiworaetal an eusss. Olea ab megan he
y ten = ase $2 mivzeis ,ifid seaigive sc3 of aptiamey mait me! a
i: de te ytiing aned bes Tittatede ond. ‘test, hope fle:
aioe. = gracing as gliediuisase. ,Nesemsrsice Dae.
Seviognt ao to. Ptesieiaces od? t¢% Semeve fan , 2459. fete bow
ag? tas ax Raper ad ss saaiaiataleaael om? ‘ta exdatie ocfd. cede. has,
ter iaasth tol iazactae
gsatk bon Aeagete: qacuecnia sheak® inshesteh a0? APPR
ot <aPiexeeies. diet hop ayell ,Isiuause iA ,editeiedt to comene edt
«tists wee ¢i tewsan celide <d box ek <#0isifeg peinerse “oe
bia apet evew aaitiseq Ales Re seeltepadia wt te. ee ee
a¢i Bas mek fatectag wit tet hetatecas od Sd acts fg ederenginrte eae
bas tenndh oubtasaes Oo _ Rap qe Armee Ee
shee pam atey grees fae. ‘ iid bles ad errs 7 sod aye Efe hina
hove sexe whoo! gadd p9edect od, ft secs ‘eect tambon Dah eee 2
tect 2h enasea (ptei tex anu bine ie efse: adak oie cart nating a Dey
bites @228 games int tetuoweds..piiseved ttee ghee sedis 23 Ges, Be
~wmital bdee San bella etew gevens rae sods idoq <davabs sVie .ffia,
analfaes of vdtueted gauiicase te scecury eae xoi. botgeesg: prea et
Pu aire feo. ayell .ceinemeda ywisiales ban , tiadawees Ba.
hee) keds 5s ROTTS teen ax-eseenl om: SOAP § i
alana 83 ke fapainevnl ayit. zlegud dun 424 yoreook berger: ae
team 262 af mbti nor Bee gan a? smuliaee nan deeds e382 at Whe
dia’ cell gtaiexu: oo whi eevbel ban eetees Yeread bus ,dlsesteta
BAG iSee tn ult bisa wi? ¢ads j{enehae ted eA heave aaete.
eter. ARS YO Be efi , sph taxadeas Abies to 2xte Yin o0f al valsueaee
a Se Getiions® eaomeeg , weigh sigs to epresivg Sb OFS aL a
intedt aeiiavernes Stes tux heceaas qdeieds evau aeliewertes |
locas tee gate ones biee ¢edd geeeeies aff ak eeep teers betes tives
ositteg edd ed Seeutws? ai see seneiiee fae aonanenl ai tetec4d « af
ide teeiz acisate ine Sedesos bea at Hegiis- poser rae ows SP asn8t
%. ssusterdue! af fatdiexce eter sfaehentet afd te aise bier : 7
Blas to éfveet 83 an gad? ,dopaecige fae gee theese Lot .) a
bid hage of Saitngaes ace. gee bise ataphastep ef? te atew
"te auicr. seat «xt te. sande-ons qnavt ateq tae spate flew - eon ag
eiuneearg of tadéiet feanee soamone lei bina anquwtedés Jadh 2G.
sth ated etme <eds fac Mae seit toe: gael owen deed: ae 14h B
ot teanea smoquerindtt cdarharieh o%, ba Eetepe Te gaa anh be
. -Mteetetea ect mew & <a
east mr toate ke out ane baer Soruvres: tndsie “ie ane yd SackS*
Sthet b02 ceenieg! af? .eoanunt Aeadetewe ead baa. do k stsed
teningeus Vittainle gdeies? jee betiagal oa pelgotectas add -
shan: te ewyetae: bas. Sudcle nit ts <a ne eee
re ee ee ee ee
i pee ae ee
* aawecio’.. ae ad ntaabas tem ois. a ae lane a fae ee
_ 9 gitinbassh exte Riadeg. tae ab asia = ;
meet bas tehsareia i
/ qeiten Bhenetete eit ered oe Sad
against them, the ssi4 defenianta, or any of them, teeavee,
gay, that 46 several suppesed causes of action mentioned
im sald amended declaration were duly released, satisfied and
@ischarged by the deerse in ait injumetion suit, mentioned in
@ai4 declaration, wich decree orovided that ali and every lia-
bility upon the injunction bend given in exid injunction auit
ia eased, satiefied and discharged, the pertinent paragragh
of said deeree being as follewe: ‘and it is further ordered
that the bond approved Gecexber 3¢, 192%, be eamoeciled and all
Liabilities thereunder be discharget. Ira Ryner, Judge;' and
this the said defendants are ready te verify;
“Gherefore they pray juizment if the plaintiff ought te
have hie aforesaid sation sagsinat thee, ete.*
it ie the eomtantiecn sf sownael for the nlaintiff thet
the special plea of the defendante is inaufficient in that it "pur-
ports te suswer the whois d«claretion, whereas 11 appears from an
imepeation of the plea that it attempts to answer only one of the
geven overt acts of the defentant consuiraters, vis: tne filings
of the ©1233, the procuring of the infunetion and esucsing the ine
Junction te be served;* that “sll the esther wrongful sets ef the
4efendente set forth in the Aeelaration, viz: the wrongful agree=
ment, the delivery ef the stcek te Feods, the wrongful and illegal
aets of the defendants aa directors and officers, the filing ef the
imtervening petition ané the filing ef the anewer of the corperae
tion to the petition, ressin unanerered.*
Gouneeli for the 4efendeante maintain thet the ¢eciara-
tiem of the plaintiff does sot state 4 cause of avtion; that “the
emly act, which wider any theory, could be claimed te be a cause of
action, was the injusotion srecesding;” and that whatever liability
that might have resulted fro= that sereceeding was discharged by the
order which, as alleged in the special ples, cancelled the imjunetion
bond and discharged “all liabilities thereuncer;* that furthermore,
in ne event ean the plaintiff preserly contend that the defendants
comaittes seven wrongful acts, eines four ef the acts alleged by
cowneel fer the plaintiff te be wrongful, namely (a) the filing of
the till ix the injunction creeecdting, {b) the obtaining ef the ine
Junction, {¢e) the filing eof the intervering petition in the injunction
bee got eg “aaaaior
ai Sens iesen- sone
«ait ‘yteve fe. “656° > babavoss ae stools siekete
shee Boktocrtad idee at ayvig geod ad
cg Imenigise off bog. id
ge dobro SET i? i evade iad alee sotoes
(Ae Ae ome ine sovaee oP stqmton st ot ca 2 :
| cae Saale
g —s 5 tetacowe ate pante , aah dorcetese esis nt ar rp: ee
| tage kha tae kita nde “eee at ie: waa vee Betas. Te: : — Re
= ane to gaa sae ewtae rte ‘tg exeteet2® se adanh oh = oat ws
erate to mown eae: 3o gah eam mad stbed a
a. ( Seseweanas stance aatedion 4
ieee Bee tes aig a a ae
He? taste jaotton Yo wees = siege tas coon abtaaty at Ye
Re senae & 8 Pa bontede of ieee bain eteeatce "y : 2
ost ¢6 begtedentd aor suthoosert jaas , net Sateen »
a eoveiics seh Snag B85 - ;
soitooctal | ats be Leones sabe Aotonge eile at kepedt = anianamace :
ae ¥. Ree.
a2 ees eS
4
}
H %
"
y
i
4,
‘
ks
proceeding, (4) the anever te the intervening petition, @id net con-
stitute separate sete but were merely parts of one act, namely, the
infarction preeseetineg.
The Firat ausation te be determined ia tke question
Whether the 4Aselaration states a eaurse of aetion,
feumes! for the elaintiff comtandte that the 4efencantea
Raye Waive! tust auesticn by pleating ever after their ¢eaurrer te
the declaration was cvereruied} that in euch enee the plaintiff's
demurrer te the 46fendants* epecial plea camnet ke vearriea back to
the declaration. In wepoert of his centention coumeel celiter the
Teliewing cases: phe Fecsie, «10 133. 84; Fish v, #arvell,
186 Thi. 236; Stearns 169 Ili. 346; Carieon v. The Peovls,
118 Til. Apo. 802;
The rule steted by counsel for the plaintiff ia unques-
tiomatly correct. Eut it ix alte the ruie that if the declaration is
ao fefective aa net te suscert the fucdgment, the question ef the suf-
ficteney ef the declaratien may be cancitered, eren after a dewurrer
to the declaration has teen svereralie4 ant ths warty demurring has
Dees the 4eclaration siate » esuse of actien?
Counsel for the plaintiff states exslicitiy in his brief
that the setion “ie met fer libel, sor fer malicious preseottion;*
that “it is an setion on the ease te recever damagen sustained by
the plaintiff as the result of wrengful acts committed by the de-
fendents in pursuance ef or unlawful combination er conepiracy.”
According te the well settied rule (Sidred vy. Ripley,
97 Ill. App. 805, 908) the action coul4 not be maintained by the
Plaintiff in his own behalf against the 4efen4ants, on the ground
-aec toa bbb. aoidiveg yalmewsndal ode at Temeem, ont 4h) mhhoone
er Saas
2 ode chomem tee +0 + ated vivre oe bool ate sete» Hse
oe
wae ca ae ue ‘
“pakzenue cd pt poate 290 « at naddonwn or i
eee He Boss
Ht : ae eo .: papenetion +g ee
atnehastat eft 3. re tees ee .
Lee. retreats ateds San’ ere ‘pbibatin “ ‘ a as as
a Witaakele sof same doen ol sag? jhetet~Tee9 |
ee sand babrane 9g aeanes aoe ieiseqs 'esanoeets
at anthe beacees Maks nes e908 ke. We. pa
“ah gataemees Prana Seca. ah
ehh 9tet obs se 5
_tandiien, 26. anne, = hana, EH UALS:
=) 4 atdab aman sodin X2EAabALn i ‘lh animal state asi
ie 20 2on gfedht wr dom at* a id tes
poet of mame, agit aaa. cdl
that the acts of the defendant ave injured the corporation, unless
the directere of the corne¢ration hsd refused te bring an agtien.
and there is no allegation in the declaration of any euch refusal
ty the directors,
the Pole is eli s#teblished that at ecmmen law in a
eivil section of conssirsey, the consciracy of itwelf does net cone
etitute = eause of actios; that wnlese the eonapiraters commit sets
Whieh result in damage, me civil action will lie; that the gist of
the esuse of action is the damege and aet the conepiracy. Deremys
Ms Hemmensy, 176 111. G8, 614; Lasher wv. Littei2, 202 Til. 882,
ete, 144 11. App. 164, 107; Hartin ¥. Lesiie,
93 i111. Anp. 44, 45.
Tae preeize question then te be decided is ehether the
@eelaration alleges thai in pursuance ef a conepiracy the defendants
eomeitted any wrongful set ehich resulted im damage to the plaintiff.
The object of tie cmeapiracy 8 slisged in the declara-
tion eas te eceree or induce the plaintiff against his will te pul
chase the stock of the 4efendantse “at ea priee lareely in excese ef
the setual value thereof.* fhe declaration alleges that the plain-
tiff was compelled te puresan« the stock, but the declaration dees
met aver tant the price that the plaintiff? sald fer the steck vas
largely in excess ef the actual value ef the enh, er that it was
im emeess ef the eetual value of the stock, or that 1t was net the
actual value of the atcock. ‘The ebjcet of tne conspiracy, therefore,
Was net accomplished.
Tae first specifie acte of the defendante thich counsel
fer the plaintiff contends were vrongful acte committed in pursusnce
of the conspiracy are the acts alleged in paragraph (1) of the
summary of the declaration made by counsel fer the plaintiff, mma
set out above in our epinien, The gist of tne paragraph ia that the
defendants agreed with each other te sell their steck te the pisintiff
| mA I
— eetan csatsaxocine wilt Romubak ovsd tanboetan adi ie wh
(—— tett0a ae nan ot tenetox best aaldatortoe Seif 16 |
ne Side tee eee Ee re Te en ee ee ee
ihe ieee ge tae
: ; Bose tas Se kts,
rudatete ons a coed ab febionss deise ten BG ta
= neue toed os at ‘begs Lie ee epattenees odt Yo pores wae "900% iin
meee
se - Stke odd somtans Wiitainte wad ‘aeckak ‘we ‘Vaws 4 |
Ye ansoas on at qleptar welte e Ro ‘wtiaat soon cal 3 | Nene,
nates nid fest : ated press sa oar mene ~ ses |
.
1
!
be
h
Ss hes oe Yee ie
ae ieee C0 rm Pe
ee Se iN cas eh, ‘ D wre be t ~ ep a 9 fy PEE.
PRESSE ee sae oh Baa ee,
oniy ae awit, it is not alleged, hovever, that the defendants
agresé with each other to seil their esteesk te the plaintiff at a
price in excess of ite value, mor ie it allessd that the defends
ante agreed with each other that they would sell their stock only
toe the pleintiff and net to any one alee. Yhe mere agreesent on the
part of the defendants to #¢11 thelr etowk as a woit war net unis
fal. In eur epiniean the sete clieged im paragraph (1) do net cone
stitute oa: acticnable wrong seainet the slaintifr.
The @@livery of the ates: te Woods, se alleged in
paragraph (2), 4i¢4 not, in our view, amount te an actionable wrong
agsinet the plaintiff.
the asmwaption of the effiee of seeretary by EeCarthy
after he resigned, s5 alleged in paragrach (3), doen not sonstitute
ah actionabic wrong agsinet the plaintiff, in our opinion. The
@eclaratien dos not allege that « sueseaser to keCarthy was ever
eppeinted. He was net therefere usursing the plaee of a lawfully
elected secretary. Purthersore, the acts of the directors, se al-
leged in paragraph (3), are not sllege¢ to have been wlawful or
wujustified, There are ne sverments thai the direotores meetings
were net lerwfully bel¢; nor thet the directors unlawfully exercised
@xelusive contre] and manage ant of the affaire of the serperation,
It ia eontended by couneel fer the vlaintiff that while
an act done by an individual) may net be unlart'ul, yet the same act
when committed by a combination of individuals may constitute an
actionable wrong, It is true that there may be cases in which the
facts would justify the application of such a rule. Kewp vy,
Bivision Bo, 242, 255 111. 715, 223; Fxrankiin Union v. The People,
220 Tll. 355, 376, 377. Ye 40 not think, however, that the sects
alleged in the deciaraticn in the case at ber are such that, sitroud
Mot wrongful when done by am individuel, they become actionable
Wrongs because of being done by a combination of individusis.
‘) "t-te ie Pee ee oe 0. ee oe, are
i =e d Ua gh
ie
seater « ins laced srorowod — toa oe a : Reger *
araemtese » ad? tutes aoe aa om
es ae
aor otiedotso: ax oF twee way “we at fon
> Spare “= <=
eee ce no ae
beetotexe Eine toe Sp wet sess xen ome ae :
aatseneetoe as te existe eae ae tee ogame fd pnionaiy
okie sais Ttatete ait as fowasan we tshen teen a2 3%
ees) a o St cee ad “i be gig
t ae yd |
asso bee ke
“mt advilianeo wo sieubinthat Y aettent ine « a xd
ee ee ROeTe ae
aoe oerens oer
dal Pee
Soaks eye a a Sotee oa
Gis nt Pipe tay - see wh wee 4
_ fomeT ie a ehoo® ot gots edt ts caevdion me eid a
eae ee Spi ae * . ine wantin ae acon —— salook
: : : ere td “Ce ae
ee ee 2 es =
§
al
The allegations in paragraphs (4), (5), (6) and (7)
im our opinion properly should net be vongidered as separate, ine
fependent acte#, a8 @suneel for the plsintiff sentenas, In our
view, these acts aii reiate te the injunction suit and, in effeet,
econetitute ene set. “hether these acts constitute an agtionable
wrong, it is net neerecary te decide, ae in our opinion, aseuing
for the sake of argunent thet they were unlawful, the seectel slea
ef the 4efendants is 2 sufficient defense.
Couneai for the plieintiff contends taet it is net ale
legged in the special plea, exeept infsrentialliy, teat aay bend wae
given on obtaining the injunction, *s de nat think the centention
is correct. Im our wiew it apesare direetly free the reeltel of
the part of the 4eares, quoted in the epecial plea, that a bond was
give in the injunction srogeeding. )
Cowunse: For the elainéiff further contends that the
averment in the especial ples that the ennse ef action vas released,
satisfied and 4ieeharged by the deeree in the injunction proeeedq
img, ie a coneslusien ef law, Fe do not think thet this contention
is correct. The special plea apecifically quotes the deeree as
orderisg that all Liabilities under the bond be disaherged.
Yer the reacens stated the judgment of Bae trial sourt
is affirued,
A¥Y?PIRNES.
EeSurely, FP. J., aid Eatehett, J., concur.
me ak
storie 2 tae fue moldomtat ond ov o@aten Tia tne
! aidenei tee a out i¢eteu ates seast Tekteee
“ gutmense ysofadge suo at oa ahtosd of ‘
ot Rete a ente ee oH tect
oie ton etait test etna tien vultataty nets py ima.
all smo ee tet pelle tacmee'tat Senamn panty tela
eters asg deh fea of «fF a6 ldnactet ot aii & a
ea.
st tes ohamemae merset enema oat
ee Sh,
cinate ot = we ot
hu ane
wie ost cpbae reaped
Pe Rk eee ee n * Bs Me
ae a a oe ae 23 * sre ~ v 2
fee gue mes fee sR SS ae ee Me
ees ites qe aia nts thak Ye agtaecd ts aie ae ba sams, pape iA
REZ SHB? couse at wet mre ad ane, iP Se : :
SiS yee Sh PRESS - S Ritredice as Ye
ms a Rae we ie ilk is
: SIRO. DE pttok SE Ie Eo Sd = a a awe tail
SP wise Seenst Sei hdicichais ebb S ica ea cane
Pigicn
ar ee Oe Fe atin “aaa a social el ey met ata
ora
ste ce wine weet eae ie x 208 wae |
; aisha
4
che mS vidio as ——
320 <- 31452
@ILLIAM De MURDOCK, )
Appellant, ) A#PRAL PROM
Ve } CIRCUIT COURT,
; F
BELLE VIMALALE et ale, COGK COUNTY.
Appellees. } : ii
" tite -, 4
_ Gp f / Cw tea:
a p f a ‘Ss § raf
Fa H i b- » f
rus! 7 Tr #t eLlhe J &
MR. JUSTICE JOMNSTOM OLLIVERED THE OFINION OF THE SovURT.
This is an appeal by Yilliam &. Murdeck, the plaintirr,
from an order cigsmissing am action brought by him on a promissory
note of the defendants on which » judgment by confession was
entered, and subsequently vacated.
On motion of the defendants the judgment was vacated.
The plaintiff declined to proceed further in the cause ond the
court diemiseed the action.
Bo bill ef exceptions has been filed in the cause. In
the record proper an affidavit of the defendants in support of
their motion to vaects the judgment is set out, and aleo twe
eounter affidavite of the plaintiff in opposition te the motion.
None of these affidavits however, cam be considered ae they are.
not properly preserved for review. They could be mde part of
the record only by being embodied in a bili of exceptions.
Thompson v. Chieage City Ry» Co+, 205 Lil» \ppe 471, 4725
Tindall v» Chieage & Northwestern Ry» Co-, 200 Ill+ Apps 587»
560, 561.
Purthermore the counter «affidavits of the pleintiff,
which controverted the defense of the defendants, properly
could not be considered on the defendants’ motion to vseate the
wile Laas 4
| sited arvois ;
| “cea ce nxig )
| |FREa mw EDO MF SA EAMG A J
soa Rehtmtada eine eBLER eS Kaogan mn ab eds | beans
aatnent baal mie al Seigared motton as phasing)
abateoae anv Smommdst, wild ataahneted pry no. hten, 5 peeing ;
Ce eee OD SA
— same te ai 6OLEY aeoe ait samleenne 0: £54 OR! Per
“te pmoggie at adinehes'voh wt Lo stvabktiw ae xogete bab: ;
* We clan. Dir aut t06 Gt vitamin; Hee etnndet eo tara as
smonie ont of Wh2eivogyo at Titehiarg sity te srhvabn ves: tettioe
pts yi’ ea detebtemes ou mad pcowewe adtynbitte exade Yo eek
ee ee ee a a ee ae
‘ iy
to sumq ghar od Siwee yat? .welves t0% novroaemy efragerd bon
andhiquone Te LLid » at hetsedae yaied ye vino brese ed?
AE GEM A OR OR +7929 TARO ene 0 ay osumedT
a eee ae ee
— hbO 008
eWRtsmbele edt Ye otbvantvie wedmos oy srossedtiutt is
yhiag ong vadartastod mid Ye ¢eneted wkd berevenseee dele
ot? otenny eo molicm ana e AAete ete Oe
|
“20
judgment. Gilchrist Tranaportation Co» v» Northern Grain Ger,
204 Ills 619, 5135 Kioepher v. Osborm, 177 Ill. Apps 394, 393.
in the absence of a b111 of exceptiona the question
whether the court erred in vacating the judgment cannot be
reviewed.
We do mot think that the court erred in dicmissing
the action after the plsintiff declined to proceed. Brown v»
Atwood, 200 Ill. Appe 210, 215.
Por the re«sone steted tha judgment is affirmed.
AYP TRIED «
MeSurely, Pe Joy and Matehett, J., concur.
agi
4, ae ey
al Ye RRR
BA ms
Ne Ne NS ay Aa 4
Ee ys eS ss Sy iueg
em anes H ees “Bee aoa Oe Rye ag
é $usieednns BUR ee ren Sak eae ashen Bhi) ae ti: ai tea rd SORE Ae ose He
en Mee
ay a Ee on SHRI Cee BS TS CE CW eer ND POMONA a yes ber AN TY Ema
a, ok hE a eo Rikmiatguas” agi Spat deans aR i Rae eee ae eS
wee mae iat
eS a
nti renee Sh) AREY ao) OR Odie yeah Ht Nate
HE EN Ce ee ee Ca eee
= PRG raat «bee e
hnanioni awn! ‘Kee aobbviviak hee Bawiciieh Ok —
, eobprg outa va bah
wait ‘Apdo 98 a ape ena .
~s
372 — 31504
TYTUS KOCHAP SEL, }
Assellee,
APPEAL PRON BORICIPAL coma
wR. }
OY SHIGAGS®.
PORY PLANTS and AERA PLASTZ, }
Aeeeliante, }
GS
eS #
ott,
i
s 4 a ©
BR, JUSTIGH JOMNETOR BELIVSRED THE GPINIGH OF THE sotmr,
this if am appeal by Tony Plantz and Anns Plants,
the defendants, from « judsnent ef $900 against thee in an action
brought by Tytua Kochucski, thie plaintiff, te recover damages from
the defendants for an alieged refusel of the defendants te perform
their part eof a written sentract fer the purchase of sroperty
frex the pliaintifr,
The subsiance cf the affidavit of merite af the 4ee-
fendente is that they were intucet ta szenute the sentract through
the frau4 of the pisintiff; that the ¢itle ts the property was not
@xasined ty their atterney; that a dst© fas ont ast te close the
@eel; that a2 sson as they beeame aware ef the fravtubent sets of
the plaintiff they resecindet the contract and eetified the plain-
tiff of the reseieion; that the picintiff nas sustsinet no damages
by reason ef the alleged failure ef the deferdants te carry eut
the contract.
Three witnesves testified on behalf of the plaintiff.
The defendants intredueed ne evidence to eupsert the allegations
ef their affidavit of merits.
The substance of the evidence is that Antheny Kytye
aeted ae a real estate broker far the plaintiffs, and that the
plaintirr pata him 3200 28 «a commission for precuring the defend-
ants as purchasers; that the plaintiff and the defen¢ants met in
the offiee of Eytys an¢ entere4t into a written sentract, in which
ar re ‘ete cant aes © iiss ie
i Sate ahs Goole ts arta 6 sar
“9¢ a NTN } “Ke |
| Ed Sey fe eoraree may easy i ne ae"
E staal weiM Bae wT
fetien ax ak mais senteye GOTE Te ein laa bee
(eee angen even Ee \PEalaty sat , Haaitioel shal
ka mtetasg af efensieteh vale to Leav'ten Sepeite ae set atnebanke
ee ‘ghteqoie to sasiorye sf? itt toettaso meadive o Te . ;
. “ah ort te etiam re stent tte 24% Ye countedee et
sigsrotsid fomrtane ait stunske at tanwhot etow yond sant we ts
| aon anw ydtsqote em? ef ef2i) iad Patt ‘?Tikataly este *. ®
ee ot tes Sen wae ora e dealt rwarodte 7
oad tastt bas jessie en ai ate
A A ST ae or
: at tem RomNestOs art Kae fotete aay
anti at sfanraaoy sett ber aera nt Be od.
the defendants agreed to purchase certain orocerty from the plaine
tiff; that the contract reeites that the defendants hat pald $800
as @¢arnest woney; that a day wae fixed on whieh te oleee the
deals that the plinintiff employed an attorney whe bad the abe
. stract of the property breught down te Aate and whe examined the
title to the property at the request of the dofen‘ant Tony Plante;
that im the opinion of the attorney the sitle was good with the
exeeption of s judgwent against « party of the same name ae the
Plaintisf; that ae to this objection, the stiomey etated that it
could be obviated by on affidavit by tie plaintiff; that the plaime
tiff and the defendants met in the office of the attorney to come
Surmate the sale of the property; that the defeniant Tony Plants
left the effies, stating that he waa golng out to get "the money®
from “some many" that he 414 net return; that subsequently when he
war asiied what he intended te 4o about the d@al, he stated that he
4i4 met care te ge through with it.
I@ ie contended by eounsel for the defondunte thet the
Plaintiff’e etatewent of claim dees net allege that a deed was ready
for delivery, nor that the plaintiff was ready, able and willing
to perform hie part ef the centraet; and geunsel further ecentends
that the evidence does not show that any tender of performance was
made by the plaintiff, nor that the paaintirs was ready, able and
Willing to make a conveyance,
in our opinion, none of these contentione Le sound,
The statement eof claim alleges in effect that the defendants repudi-
ated their contract and thereby rendered performance of the contract
by the plisintiff iepessible. fTheee allegations are sufficient. 1%
Corpus Juris, paragraph 346, p. 727. The evidence shows that the
Plaintiff wae ready, shies and wiliing to perform his part of the
contract, but that the defendante refused to carry out their part
of the contract.
wii sock bm me Wrretta ww an hhwreelbinen’ jaca a
ost bomdnane heal tits ata Oe awreb vituuwes eneeore vend
err wa itn ‘ails Rae eaeennyy putt tate, TT thioh aot
ne seit winapi Sommraa hase HL meoneaeeonei : eg ot
Paetar ee
Sree SETS
i ~1awaer bigs ate tant teers wh 1 eas cie mace 20 sa me
a
Gouneol fer the defendants further contends that the
Mames of the plaintiff and hie wile appear in the body of the gone
tract, but that the contract is eigned only by the plaintiff; thet
the contract provides that the plaintir? and hie wife agreed te
gonvey a good titie te the wroperty; thet unless the deed to the
property was exeeuted by the wire oF the plaintiff, 14+ would be ine
effactual to cenvey the inewate right of dower of the plaintiff's
wife; that since the plaintiff's wife did net sign the contract, the
plaintiff would be wnable to convey a complete title to the defendante
The contention of counsel for the defentants presuppeses
that beesuse the wife of the plaintiff 4i4 net sign the contract,
ehe vould not slg the dee4 of eonveyance of the proverty, aid thaty
therefore, the plaintiff could not convey a goo’ title, Pe de not
think that the contention is sound, Gm the present racert the cone
oe
tract was ywnousstionably binding on tke plaintiff, even though his
wife aid not sign it. Bretiing v. Hybl, 167 £21. App, 165,167,168,
and we are of the opinion that, asnwalng for the pakke
ef argument that by the terme of the contract the plaintiff wae
obligated te give the defendante a deed aligned by Lin wile, it may
be presumed from the evidense that he weuld havea been able to do gO.
The evidence exews that the wife was present st all of the meetings
of the parties, including the meeting on the day when the deal was
to be conaummated. The only reasenable inferences, therefore, are
that she wae ready and willing om her part to do whatever was
necessary to give the defendants a goed title; an‘ that the purpose
of her being present on the day the desl was to be consummated was
te sign the deed of conveyance of the property jointly with her hute
band,
Ver the rvansuns state’ the Judgment is affirmed,
AFPTRAED,
MeSurely, P. J., and Metanett, J., concur.
: wht tat abapt nop, spear, shambow tad Lind wot foncwed
iS aaee ant te ehad eet at nage ottw alt So vittmlate oa
: taxis prhheaiat@ wed we yktio bombo ef Seed ne ait teat tes )
i OF, Spats Whim, nih ban Tbr ate te ost sand aobiver pertd: 6
at pt Qeeh qd samioy sade pyrmnong e's oF obet doog yf
“tt wa. higox 24, Tiksateke eit to etiw amd gd neadianne oat: wrtoqot
e' Yistale da ont te sewed to dtyis steotont nats worse at Lantoo '
asd gtawatcoy galt mpky tai bab @'tkw a eltataty oat —e bam
— etawhaw'y) ody oF Lik saoigans a. seven, ae ofSne od, rae " ida cour: all
soangquaary, wee tata wag sok ihe ahead Yo Rattant me nat te fe wes ve : :
Pentiaee ach mye fon hth Yiksmtete alt Yo ek ont emma
eta, Rite CARMTENG, O04 Yo onayerace Lo toot mt eae 8 toa | : Bo fal
tom, ab,o8. 0kett howp.# Warnes ton higas Thttele la pin ‘
wien, pad, 108 pakiw sags | tant pointy, se, 29, 9%, pa o
mga TRA a Se, sities nad to mereed oat ik fee?
nom, kas, os, asin, yas oh. suigoos ott, ge thotons — #3
ote ete lo esd? men Ahan commer EM ee
2 <- 30535
MERPURT UB, SEARS et al., )
Bxreeuters,
Defendants in Srrer,
BRROR TO OIACGNIT cou? oF
ve.
COOK COMNTY,
CITY OF CHICAGD, a Munisipal Lee
Cerperation, AT A eee
Plaintiff in Orrer, tt A ot ie Oe &
BR, JUGTICN MATCHETT DELIVERED THE OPINION OF THE coUHT,
the City of Chieago eued out this writ of errer te
review a decree entered woon a bill for an seeounting.
The deoree recites taat the cause was heard upen the
bill of complaint and the answer of the defendant, ity of Chicago,
af emended, ween replication to said onewer, "mud wpen the preafe,
oral, documentary an¢ writion, taken ont filed in eaid cause, *
The decree finds that on April 22, 191°, the dee
fendant ty ite council paseed a certain ordinanes vacating certain
streets end alleys in eertain property therein demeribed, and that
said ordinanee provided:
Vacation herein provides for is wade ween the express
eondition that Francia Bartlett abali within alxty days after
the paseage of thie Grdinenee pay to the City of Chicago the
eum of $40,863.08 toward a fund for the paywent and eatiefae.
tien of any and 01) claims for damages which may ariee from th e
vacation of said streete ond alieya,”*
It further finds that Hartiett made the payment of
said sum pureuant te the ordinance; that the defendant accepted the
same and agreed to held it ae o deposit to indemnify Leeks, /pree
vided in the ordinance; that the five yeare within which suite for
famages reeulting frem the cloging of the streats and alleye could
be brought against the defendant mad expired, and that the defendant
is no Longer in fear of any such proceedings and ne longer liable
fer sny cleins, nor subject to court proceedings filed prier te May
«45, 1917; that the compiainants snd de’endant have waived a refers
hi aie na ts choles
©) Behl Re
ence of the cause to % manter in chancery to take an aeeount and
4iseovery of the moneye axeenind or far ehieh the cet endunt Pegame
Aiable on ascot of claime for ¢amagee arieing frem the vacation
of said etreets anf slieye; thet the defendant having presented te
open court a statement ef the moneys oo expended, which statewent
was admitted by the sonplainanta to ~~ and aprreet statement,
and it appenring to the court that defendant did expomd in gatie~
faetion of claims for damages the ows of §7160,28, and that ne
other claime for danngee were pending or hed been made against the
@efendent, the said defendant City of Chicage was entitled te a
eredit againat eaid $40,965.08 of roid om of $7155,95, leswing a
balance due to the cempilvinant executors of the will of Francia
Bartlett @f the mm ef 935,374.05, which swe it war adfudged dee
fendant should pay te the aomplsinantse within five dave with lawe
ful interest from thet 4ate,
The right of the couplatnents to reeever in o auit at
lew upon a etate of facte och ae the decree Tinda,seane te have
been definitely established by the Supreme court in the case of
Lockwood & Btrieklend v. Chicago, 779 Ill, 44%, smi that decision
has been followed in the subsequent cases of John MB, Gmythe Co, we
QGhicage, 294 111, 136, ena Curt ioage, 96 I31, 498,
This seene to be conentad by the defendant City, which, however,
contends that » bill in aquity will not Lie upon the etate of facts
diselosed by the revord.
It is urged in the firet place in opposition to the
ight ef the complainants to resever that the executors came inte
court with wiclean hands, ani fer twe reaconea; ist, because the
Dill set up an alleged understating and contract, which @4d not
exist, thereby deceiving the court; and, @nd, because the compl ain«
3 ante are seeking to take advantage of an illegal act of their ine
| testate, thereby profiting by their own wrong doing.
Bs oR Tp Bi ud ‘he. alta als Ore gS
i ede sat teaosenn owe rot baw | eae’ ues
et
hime Parsons mn sine OF yrmnnety af tPese @ OF onmen ont Ye nme :
saaded domdan'teh nt votse ty? xo hobawexw’ Wewmam Od te te ove) O
molteney if mot gitinina request vot wale fe Yo terveoe a9 nok 4
at batvenere gabrad ¢enbne'toh oft dace payn ita daw stopiibe Bias bal |
Refeainte ete spate: ay wenn ott tnsnmate ae ioe noee
« Horned 2 6 tomas bas ee as ateowte tgmen add “ poretnte oon
athiae ai baw one Sie Soke ter goes dueo od? of satracqan. ot hme
‘oe dss ban AR .LBLH Yo amd vel enyondd cor amkade V6 bobsos
eh Jamhoge shes aang Sat xe grhiaog oxew aagenmeh, set ontake waste
aod SwStionm na gyaoddd Ie ye Saedve teh blew sat » samban ted
de QSL GAR WRUNG Ye owe tins Te BOER, Biee tantege steno
ghetto kien one ko snerioinn tamale taue oct at, ah pommted
eS ee ee ee ee
aman ate ye orl mhltin stant Leap, mtd Seailanepniss ane
ae pe bl Aerantntanen oat. Xe, jp ail “4 Siiaialte!
Wad 02 MRARR APOE aetowh att ga dame aren't a neem mem mae
Yo wane odd wh Ixson contend a7 yt bade lidates ylaet
a nr yar elit? hE —
_tovowod Ao be ven Saoban'tns, one w iekeouns: ot
; eR a tae fe “ ne i
“adont to « osage erie noua wit £ ten Bade otupe al thd ont) abana
ol a a ack a ie “\inowen ont hee |
su, Sth NS saa alta beds Ce ae
"pat
mie
‘nels tecee, ‘at ovate ‘test sual at dog ah: OE) eee):
ea pai ash Re Ae HAY ay vont LY baud Sa éuiak 155) “YS ae Sf ¥ ih
vy 18>)
eae a WTR GER WAN ROPER en LO RBH tuts
a way i. 84
tle shout te toa tego
Gi yr “yi ~ Faia ES Oe ale ON ea ait aM
it ia a saffieient reply te the firet rensen stated
that there is se proof in the record that the contract set up in the
bi21 was not in faet made, or that the court was deceived by the
complatnanta,
The defendant anys that the ordinanee providing fer
the wreation of the atreets and salieye in queetion wan in faet the
result of « bargain and sale; that somplainantet teetater paid fer
the land vacated at the rate of the sasesser's average valuation
for the property listed om the veecrds of the Board of Aesessore and
Beard ef Heyiew. It further says that while it Le true that the
Ordinance recited that the strects and alleya vacated were ne longer
required for public use, and tueat the public interest would be bert
served by their vacstion, this reeltal en ite fuoe is contrary te
reason and a mere attwpt to evade the Law with reapeet te vacations,
and it is urged that the court shewld teke judicial notice ef the
fact that the vacation of territery of sere than a Rhelf mile square
Gannet be fer the ouwblie good,
We are not arare ef any case where it has been Bo
held, nor of any principle upon which « seurt could take Judtieial
metice of any such « situation, The fetontant cites People ox red.
Cow, 286 TL. 226, to the propoaition that
the recital in the ortinenee ia not binding on the court; but that
@ase foce not guetain thin contention, It wan there held that e re
@ital in an ordinance fer vacating a street or perultting the erece
tion of an obstruction in it to the effect that 1% wae passed for the
benefit of the city wae net conclusive upon the courts. fhe court
there held under the facts “hich were mada to appear thet the eity
@oune®l dia not have the pewer to pass the ordimonce which was than
whder consideration, It io net argued here that the city counei)
| Was without power to pases the ordinance upon which the eult ef com-
f
.
D
- d
Uj
bs
‘Plainonte is based; and if 4¢ had such sower, 1% is, as the Supreme
dateds Somers Cet lh ome of “loos fame bo kam ae iui a yr ve ea8
nde wk coe ine doardac 8% and Wwone uh: ek Reon oe an vom dads
Panes iar
wit: ae a ea aoitaane ah same tn has ate@nde dite Minis :
tol ker saleiee? 'simnaieamee dant aten ta alegued a %e Otaqnt
noktanioy syriora a xonenene oi) ta aden edt to hetmban teak ate
ine wipessenh Qo Med est te abtoant one so detedd cupping
oA? fans ewnt ob $2 ahdeiy saris exon cate a. wade Medea
Sepnok va eee hudogay aywile one adyowte wre ands hethown gromabine
deed od binew taeue tal atidem wat tet, ed ohdug 0% hata
xtengaeo of, sgnk fk. wp fatten eat emabsnoay ube ath ey pew van
enabannat at Manama: CRA silts dati emg, oun a han moRMe
eid Xo walvon twlnthal sted Biwone demme, sh paula bora abet ho
Seee oie Lod ©. ond, pine Yo qmettene? to aehtegey oot tomy tea
is ie ee sot ed tomas |
of apad tol fh. orn ogee. yne ‘Lo MmeW. doe Ome AF, 8 as to eet :
sehoteet tiled bivom: tomene Matin nomen teneebn ype Smt |
heoes wwtle sant om teh sat mobsters,
sats. mtd taoaese | ont ae Fes Rt atmo
fact gus s4r0p, 960.9 watbay. ton a2 9 wl 2 Lationwn, ot
=9%,@ tad bio erst soe. 4, smodeatnO® 109. tespue ten enohonen
mone od oulieinetanin we setts a rr 49%, sont $0.4 ne
court enid im Curt Telas vy. Chigago, supra, estepped beth in law and
equity to nov ansert the contrary.
As te the further contention of defendant that the
complainants are seeking to take advantage of an illegal set of their
intestate, and thus profit by their own wrong doling, defendant, in
suppert of thig, arguee that on account of the sige of the traet of
land in which the etreets an? silieye were spened by thie ordinance
(4% being more than a balf mile square), the sane was uplowful bee
gause fone for the benefit of « private party and againgt the publie
intereat.
; if the ordinance, upon ite face, disckosed that the
intention of tre council in passing 4t was eolely te confer rights
and privileges upom orivate persona, then the ordinance would be
iliegal because, a9 already stated, not within the power ef the
couneil to pass. (fee Peonle v. Abking, 295 113. 166.)
There is, hovever, nothing in thie reeord which would
guetify auch » finding, eit the oriinanee upon ite face appecare te be
one which the sowteil had a right te paos and wileh, under the facte
whieh appear in the reeerd, it will be presused wae pasend in the
public interest.
It ie next contented tuat the deeree Le srroneous bee
@ause, ac it is seid, the complainante having some into equity are
bewn4 te de equity; and it io wait that this principle demands that
there te a restoration ef the vacated streste and alleys berore
there can be a recovery by the complainants,
The emewer ef the defendant, as suended, relied upon
@ statute passed by the legislature in 2091 and in foree July let
of that year, which in sutetance provided that sults, such s@ ¢ome
Plainante’, could net be maintained without such restoration of the
“Vacated streets and alleys, ‘That statute was not, however, appli-
| Gable te thie erdinanee, and it was repealed by the legislature in
i
‘wate etaes vies on 7 ettalibe a 2 flemmen sat ny
| adver qocnmtiny | ott mete .eneez0q edar tag moe sage, ! vag,
_ at Ye tewen paid ahds ay oq ,bededn yhaenis ma. ie ve " faye
wepunne wit SAM EER AR on on). ote ahd
anes dohie Seonos abies st publ on eer rari ok Eo nate wal pres
~
“of auonacres, at ‘eonoed ante tant henna, si oe veesuion
_ gt etae oad naan gntyad minonte igmme nat shine a2 #2 99 amen,
ideation ekgtoatng | abst snes hing of a8 Aes Atm, * *. poi
¢ wetio haa spoons petaney Ov, bi prey Na |
ay ae aes Mae
ee Vie: ie hk ORY sale” pe oe
ba it wren. rir PSNI rah i He Rees
aot Sota ‘= maudnde tyes ox
AT
1923,
Horecver, the equitable maxim which the defendant ine
vokes is net arplicatle to the recerd here presented, since it kaa
mot been mate to appear that the vacation of the streets and alleye
im question wae made for the benefit of complainants’ teetater. The
atatute ef 1922 could not have been intended te apply te ordinances
passed and depesita made prier to ite enactment,
It 4a alee urged that the ult was prematurely brought,
and Section 21 of the Btatute ef Limitations Le relied on in this
Feepect. The finding of the decree, however, on this point was euf-
ficient,
No reason having been «ade te appear which would ree
quire a reversal, the deeree ia affirmed.
AFFIRMED,
Ne®urely, P, Je, and Johneton, J., conour,
; hist + Sac
ee BE SRP
SIRS Y HPF wives
sty 2 Ads 7
SD ak oR AR Maen. He
yea : j Reptye Ae: Ae yea 3
€ L GR RN Ha. fe BREE MARR. '85
“e eet mers : Vmaatiid aah ed soi Be kA a
y Lap ve he
me as ee:
wh ‘Kae
36 - 31146
THE PEOPLE OF THE STATE )
oF ILLINOIS, ERROR , TO
Defendent in Brrer,
) MUNICIZAL couRT
a. OF CHICAG
MI o>
DAN PETRIZZO, DA vig oS
Plaintiff’ in Error. 2 1A. 627
MA. TUSTICH WATCHETT VALIVERSS TH OPINION OF THE GoURT.
The fects whieh appear in this case are similar
to the fncte whieh appesx in the ease of The feople of the
State of Illinoie, defendant in error, w+ Dan Gentile,
pisintiff in error, Gen. No. $1146, in which an opinion
has been thie day filed. The recerd im that cose is
similar to the record here. Yor the reasone there Age
stated, the judgment in this case iad firmed. es Zin
AFP IRWED, f A Ys
ra 4 f 93
i j ; f\ Vv A
Medurely, Pe Je, amd Johnzton, J., concure / x a
$6 - 31147
THE PEOPLE OF THE STATE j
oF ILLINOIS, }
Gefendant in Srvor, %, SRROR TO MUNICIPAL
}
Ve COURT oF CHICAGO.
Plaintift in Error. A, 6) ”
oy. * ea
se
We JUSTICE MATCHRTT DXLIVERND THe OPINION oF PHU COURT »
The facte which appear in this case are similar
. to the facts which appear in the cove of The People pf the
Seate of illinois, defendant in error, ve Das dentle,
plaintiff in error, Gen. Hos 51148, in which an opinion
has been this dey filed. The record in thet ease is
similar te the record here. for the reusens there stated,
the judgment in this ecace is affirmed.
AVFIEMED, eo
MeSurely, °. Je, and Johneton, J., concurs \ “us Biel
uy
tet
Vinee
36 - 31148
THE PEOPLE OF THE sTaTts
GF ILLIBOIC,
Defendant in Srror,
BRROR TO
MUBICIPAL GOURT
OF CHICAGO.
Ve
DAW GENTLE,
e
1AT A Pow’
ai.. a ~—.. ai 3 » ha
MR. JUSTICE MATCHETT DELIVERED THR OPINION OF THE coURT.
eee Rg ott age a ct
3
ae
Plaintiff in irrer. eh
The plaintiff in errer wac the defendant im the trial
court on a charge of violating section 5 of the Prehibition Law,
(see Smith-Hurd I11. Revised Statutes, 1925, see. by pe 1098.)
ALthough duly “woxrned, he waived trial by jury, and
upon trial by the court exe found guilty im memner and form as
charged, und the court, overruling motions fer a new trial and
in arrest, imposed « fine of $200 and cosets, which judgment the
defendant secks te reverse.
A similar informetion wae filed againet Kike Seongomano
and another of the same kind sgeinst Dan vetriaso, each of whom
alee (waiving trial by jury) wae found guilty ami a like judg-
ment impesed. The transaction which reowlted im the filing of
these informations was one in vhich these three defendants
participated. The records «re similar, and the ceuses have
been consolidated in this court. ‘The rules of law applicable
to ¢ach case sre substantially the same.
The language of the information in exch case wae that
the defendant “on the 12th day of Jomuary, 6+ + 1926, at the
_ City of Chiesgo, sforesaid, did then and there unlawfully posses,
q sell, transport, deliver, furnish certain intexicating liquors
4 containing more than one-holf of one per cent alcohol by
YOlume, which was then and there fit for use for beverage
4 g;
oY Rone
gee Lad NL
lopeo tie «6°
eT a a a a mn a I i in NS a
Latas wee ah: teabow as
9 wad make Aa ahet ahs 20 % mahsese gaddaloty hy ili /
(.800k «a ot nnn AK seperate same AEB ‘ we
sah bik, 0 Whi heidi (em eb dake attend one
20 HALT ond at doe Kwowr doldw modiomanend ont «hesoqmk sues
etmphee toh veud? svods doltde at ono saw enoltsmve tah ened?
ovad Heed od bm yrokioks exe above oft + be onda i
eldestiqges wal te avkex salt -22ubo eis mi Setebikesmoo med
women outs widehonctudue oun gune done of
dads vow onwr done at modsamnomt wid to egawyaot oT a ee
edt fm ORO oo) sguauinal Ie Yad AVSE odd ao” Satehmotoh oat |
cnuseneg Usual wrod? bar meds BED »oLosoxet» ~ogaokd? YO YL
exONPLE gmtsnokosus aketrve dated «xovtfod .sroqenmnt qten —
WS Sedat cane sa one 10 Hino add ora pba
PA
caecoved <0 eat x02 44% exnild bax wets ow A
purposes. itaid intoxicating liquor them and there in the
possession of the said * * * not being possesced in hie private
dwelling while the some was kept and used by him ac a private
dwelling only. The said intoxicating liquer not then ond there
being in his possession by virtue of any permit iseued by the
attorney general or the office of the Commissioner of Prohibition
ef the State of Illimeits., aid intoxicating liquor not then and
there being used for sacramental, medicinal, scientific,
mechanical, chemicol or manufacturing purposes, not otherwise
legally authorized.”
Said section 5 is az follows:
“Ho person sholl on or after the date when this
Act goes into effect, manufacture, sell, barter,
tranmspert, deliver, furnish or possess any intoxiesting
liquor except as authorised im thie Act, and all the
provisions of this Act shail be lihersliy construed
to the end that the use of intexiceting liquor as a
beverage may be prevented. Liquor for non-beverage
purposes ond wine for sacramental purposes may ba
manufvetured, purchesed, sold, bartered, transported,
delivered, furnished and pousessed, but only ae herein
rovided, and the Attorney General may, upon application,
asue permite therefor, but in case the office of
Comalasioner of Prohibition shell be ereated, then such
Commissioner shali issue seid pormite; Provided, that
nothing in this Act shell prohibit the purchase and sale
of warehouse receipts covering distilled spirits on
deposit in covernment bonded warehouses.”
Motion was mate im cach case to quash the informetion,
which wae denied, and this ruling of the court is aeosigned as
error. However, it will be noticed that the informetion sub-
stantially charges the offense in the language of the statute,
perhaps with unnecessary verbinge, but under the rule leid down
im People vy. Tate, S16 Ill. $2, we hold the information was
euffieient.
It is further orgued thot the evidence failed to prove
certain mterial allegations of the information beyond | reason~
able doubt,
f
fl
iG,
ate
nade mh wrestle ome not resepee geitnalxoval bine . ot Hy
wtaweng ei mk hevaeneng witted ton * 8 bene ate ‘0 motanedoon
otertny a nemik ue dear bus seek nom omne ‘wee oth ” gil a
ora) my mode Son woOMpAL gubdab trodes besa Ge te watibinds
oe PO beReeh Ikateg YMe to estuty yd sekeanaeaq aiid nt auted
works kddetors 2 ce) xonte tow hemo eid Te. eokite wde 30 karan wares .
i bene peont fom soupit pukioodnosnt beat ianaceoaeaeh % sdate ‘oe to
<oktRaetod «tnatothon iadnouinrese x67 ‘boas 0
Webenwite ton ,omanesy eaieaiieomual 1 Lonkunde idmehnatoen
“bontonine yihayeh
PaMeLLO® an ‘its & souiaiaaiud ait tt vn)
RH
dina Mokineratmt old duit peotenn od Lite th yxowe
sedutate etd Yo egewpanl silt mi sachs ear |
PEN
an ‘aaratann, ah xyes one ie ~ i it
¢
t oe vigy hy nly «e
orerg one 4d temps vata
hf Lae OU: A a Psi iat oth | ee Bis 4 iS Pt
snbeinnntind ele ae LI:
ted Dy) ‘Soaoye he ty b ‘tthe
Se Sa a BT ed
ORT, RE IN RA HR onan? man sett one: i tl « MR:
=e
1% ds said im the firet place that the evidenee failed
te show that the liquid in cucstion was fit for beverage pur-
poses. it in true that the information mace this avemaent, vhich
we do not think was a neo¢nenry averment but on the contrary may
be regardeé as surpluesge. Indeed, the whele theory of the act
in question is thet intowienting Liquor is unfit for beverage
uses. The intention of the defendant in this, os im all ether
criminal cases, ic the controlling question. It is net argued
that the alcohol which wae seized was not intended te be umed an
® beveruge, and the evidence shows beyond « rexaeneable doubt that
such was the intention.
in the mecond place, it ie urged that there woe no proof
of the allegation that the liquor fount in possesreion of the
¢efendante hed an alehholic content grenter then one-half of one
per cent by volume. The proof showed without question that the
liquor was aleohol. There wie undmlied proof of the admission ef
this fact by one of the ¢efendunts in the presence of the otherae
This fact could «leo be inferred from the teatimeny of one of the
officers vho tasted liquor from oth the reeeptacles which were
seized.
The evidenes fer the People tended to show that at about
9:35 in the evening, police officers sav an eutomebile atanding
om the left sid« of Mo. 5055 Federal atreet, im the city of
Chiesago, and that as the officers approached, this automobile was
épiven away at a high rete of speed; that there was thrown from
it two bags, which were seized by these three defendante, and taken
“ to the rear of the building which etocd there, the officers pursuring
the éefendants as the bags were enrried aways; that the police caught
the threes defendants, opened the toy of the cane which were found in
.. bags, and asked what they contained, when one of the three de-
batict.omaspbye ald sade ee eee ae ah i nn
| “ti eRSTE VO WOE S27 nom Bokeanay me Rhwsl ond sods yoda oF
i siokdn »taamots wild ebom ich pe iy 1 ol i
Wien YENI MT NO HT SORMTHTE ERveRKORR & aw Mme sit iat
tou odd te “mone whale ee head. eM sae at
RN a8 Hew ed memes, mares a
| a Sip em ae ai enpumate “At, a ennaage
| bearyss dom ot 4 en howeuy iil snaa
t batt temas pin we
ict
: re wee os bs Me Wi i
tention ta Soakt an me SeBmog ado ont et sane otve tt i, @
piaebanamiitin detuned eo rER RRO 2a es :
| Epicannerpmnumngncieaay gape | mi “?
Bi dy case PA eae aie
moos bye aaneatan 5 canoe veaeune peat ap oo
Binet weSltio aff ,oved? hooda Molow autbtiud ut
Wetiiis hain i nf, poy atin to mie
Fe (ahi viah
fesdente answered, “Aleohel;" that the officers tasted the liauer
and thet both caneatasted alike; that the cans in cuestion vere
Tive-gsilon eane.
There oan be no rensonable doubt of the defendtantet
guilt. Aside fro=e ether evidence in the regert, the faet that the
three defestarts ren away frem the of flowre carrying the cans of
Sicehol indicates guilt. Tao defendants, availing themselves of
their senetitutional privilege, 414 net testify. A ds6ferndant whe
hed rm avay from police officers carrying a ham under simiier
eircusstances, might be inferred te be guilty of as intent te eat
er sell the hes. These defendants, whe wider similer ¢ireumstances
flea from éfricers “ the lew with baga eontalnuing cans ef alechol,
Bay Pell be euppones /in tended te drink er sell the liquor.
It is further urged that the sans ef alcohol sheuld
net have been regelved am evidence, becaues the same were taken in
Wiclatien of the eonstitutional rights ef eleintiffe in errer, A
motion te Sueprese the evidenes was made en that grown’ and preperly
@enie4. The eases which defendscts elite, an4 upon which they rely, «
» B21 Thi, 392, Peooda v. Frail, S14 111. 818,
‘People vy, Reid, 318 Til. 7, Pecvie vs. Coda, 235 11). Avs. 587,
are easily dietinguiehstie,
The fudement is affirmed.
SRE ES
MeSurely, 7. 3., an4 Jehneten, 7., concur.
1
ae ., Cen
Poe
a eee ee
aster saaonvab & spoon om LER “ancien tat
ei e. + sana eile: eect ed a8. henxetad: onthe
4 oT]
en tie
p SU wer
- Rie eet sob sony oe st
ee fit BO ek 2 dees bo
eLpeesigee FRR aee:- somite, at cage
Ste FO AR
eee. See
be witp ad. me. « SO RRR A
‘ ae 2 ae *
Geese. Aes. & Se taeee = ol ae
wit), PROS Lae Pos
;
Beit ete ARR Opes 1 5
a Lee a.
* :
84 + 31166
gee oo for use
of O8CAR Z t BEROR MO BURTOL?
Defendant in irror, , —
a COUNT OF Chicahe,
e
DOWALD V. FERGUSON,
Plaintizf in Error.
a iene areal
@ 3
MR. JUSTICK MATCHETT DRLIVERED THE OPINION OF THE couRT.
The garnishee, “%omald VY. Ferguson, has sued out this
erit of error to Bocurs the ru.veresi of « judgment im the sua
of $261.44, entered ageainet him on the finding of the court,
which secms to nave been besed UpoM the onawer of the garnishee,
ne evidence having been offered or received by either party.
The oxder of judgment provided that execution should
be atayed “until twenty days after such date us onid garnishee
ehell heave im hie possession or cGuntrel any of the effects ef the
said Kebert E. Ferguson.”
The garnishor hee mot appeared in this eourt to dofend
the judgment entered; and it 1s aadce te appear that the judgment
order was entered im the absence of the garnishee; that although
; the cause had been continued watil 11100 a. me om Friday, the
: 16th dey of April, 1926, the garnishee uppesred at that time
4 omly te learn that judgment hud Yee previously emtered. A
% stenographer also makes affidavit that she appearcd im court on
thet date prior to the time set and remained there until the
et ee oP
ee
*
¥ @ourt adjourned, but that the cumse wee not called for hearing
during that timee
es ‘
The answer of the gernmishes disclosed that the garnishee
ad am agreement with the judgment debtor whereby certain
ett Uo ateovie edi to wee Loxdaey ue ab)
SRLOLEGH, OF HMR
ROTA MO TAYES
8&8. ie we at
OOD ane * HORHTiO ‘att aust Bi i
set leah ennai Neha centage Wb ssiiiihes
ae edd ek daoeeigawt, a te Iowiorst act oumee of wont te abe
oa Liwi9e eit Yo qutbate odd wo ak temteye docodNe abdARSG YO
nin tna oid Ye tovens ost mbes Suaod Hand eva o8 -emeRN Molde
“wig seddLe Gd Hevkoved so beet ved nalvat eonbive on
| hbo moktuwexe aad Debtor seaaqout te” esbuo° eH eo Fo |
| enitatetes bikes an adad dove ted
Be Giese Ak ReUEONyS, On, ey shvant%ts » oa - ili
ad? Litas oveds Kotte: ban fou omke ‘eo a aor
waked 107 belles ton ax eauso oie toad tad ¢bomees ates .
sons a “ve
bagi
ay fs Mi Sei
"cert mt es
pea ee cai eau:
Poe? eo Te i
comminsions in connection with esles of seal estate should be
paid to the debter ac and only when the same were collected, but
that mothing wae in fact due from the garnishee at the time of
the service of the writ or ot the time of the filing of the
angwer.
it hae been uniformly held that judgment debter by
process of garnishment ean only recover such indebtedness aa
could have been recovered by on action of debt or indebitatua
assumpsit in the name of the attochment or judgment debter
against the gurnishee. In other words, an indebtedness which
is uncertain and contingent cannot be reached by this process.
A few of the onses which so hold sre Webster ve Steal. 75 Lil.
5443 Swope v. weClure, et ole, 259 Ili» Apps 578.
The judgment is therefore reversede
REVERGED.
MeSurely, Pe de, and Johnston, J+, concure
Wh
‘6 studs stesso Lees 20 aotse div wokdownen at
AE ROORINE: SEN MERE NEON I
‘ eibeteellbis: ERE hs AER BEER NTH
hb he wees
tara ih ou? Panna ase
apg Ris en Re! Re TArtiet, wiely SSE. ad bey
oi _ lane tate capers see eed tag het, baal
ieee Pitios Vid. aI. eae vay th BAT an eles w
od shen Heit eamaiet Satie Ram caw eahp ay
aabwone nee, nhac Fan HLT weeNte att! geek ee y
|
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q
;
:
71 - 32195
TELLER CORPOR TION,
a gorporation,
Appellee, AGVEAL FROM MUNICIPAL GOURT,
Ve
} OF CHICAGO.
Le Js LEON MANUPACTURING
COMPANY, ® corporstion, : : oh
Agpeliant. iP . 4. y '@)
rot Sp Si (
Mie JUGTICK MATCHETT DeLIVERED THE OPIBICN OF THY court.
This is an appeal by the defendant frem an order
entered in the Sunicipai caurt denying ite metion te yvacate
and epen up 4 judgment theretefore entered by confession
upon a written lense fer the sum of $437.16.
The plaintiff has not appeared in this court in
support of the order entered.
The wotion to eet acide the judgment was supported by
two affidavits executed by the treasurer of the defendant cor
poration, whe sverred therein that plaintiff nad no authority,
right or power to make the lease upon whieh judgment was con~
feseed without the written consent of the .mericen Furniture
Mart, ond that such written consent had not been secured.
The affidavit oleo uvere thot defendent’s by-laws
provide that the president and secretary ehali exeoute 211
leases, and thet defendant's seoret»ry shall sign with the
president or vice-president in the name of defendant and with
| authority given by the board of directors so to dog thot such
authority was not givon to execute the lease upon which judgment
SMtI0% AS 0 NOE BARA
-opi01tD * zi : cs "areata si
| wi | Spmersat
“So fT PRs: ope OAM 0 xan
Sinan sort et eiaahial may SKE FRA NOTE mt
aes Be we newbs Ae
, One, mee, Amano ver. wuld ro dnequs a0 eat. oe
ie wi ct peel “hee
steer 9b neliga 924 suewien fuse Lag toimus dd ab, —-
Lae Seavie shes repo, eh
Oe NE Renee axeleae xeds sasagbul qe mK bse
si able Peg Yo awe vad seh onaed, meseier "2 oq
(Gk frave oleld Mh Goreegae, fon ceed Thaae cher de tiene ane
m shotadee 19h was a 30 erage
yd Bedtegqua saw sanmntur od ebhee Joa of nation ost et |
“460 Imabno%eo see te Pacman ond hid sosivoore aft ‘bya 7
eWhvordve on hee Thlvmiatg toate niwneds heekews ody \eldoreg
“HOO aw amid Modcw sages noqu Sane out wala of toMOg 30 lads
oumsieuet aeekvem otf) Yo Smeames mbetinw oft tuodtie Dbenaet
sherwoee noed fon had snoeues meds bee down snd baa eat
ately u'éaches teh grft suevn eo ke Ghredl te ext
is
Wat 332) 0 |) eh eta ea
fhe séwoexe tlode Yidewee ban Inobiewrg odd seats ebiverg
odd dtiv mia {Lado yutonove u'dachanted dade baa enaned
aiie tea tenbaoted to oma od af dmobhaerq<oety 20 daodoorg |
Mowe Soaks t9b 02 06 sxpsoexts Yo brsod ould ye aovky yslredine 4
Pmangih Moly wequ oot odd edwomne o¢ novly Jom caw Ystvedéue 4
40? nosoqung vate ody fuelt exONe Oude StvobLTIe od it
Aeecorrun set tuoqxs 102 ww Doaw OF Auer Smeol euaqe Odd 5
He iaaN TAC hae i iiss le”
that defendant did not use it, but that the president of defend-
ant had a few pieeas of furniture moved inte the epsce and the
same remained there from Januory, 1925, to April, 19253 that for
thie use of the space, defendant poid the sum of $460, which was
more than & ressoneble and fair rental fer the use of the said
premises during anid time.
The lease upon which judgment was confessed purported
to be exccuted by ite prevident, «nd wines the affidavit of
merits denied his authority to exeoute x lesse with power to con-
fess judgment, ve think « meritorious defense woe etated.
The lease is net under senl, and the reeerd faile te
show «ny circumstances from which such power of the pmesident
might be inferred. Snyder Broa. vy. Bailey, 165 Tlie 4475
Ghiesgo Tire Coo v. Chiongo Not'l Bank, 176 111. 224; State
Bonk v. Holine Steel ce., 263 (11. 581.
For the error indiested the order ic reversed and
the cause remanded.
REVERGED AND RRMANIED.
Mofurely, P. J+, and Jehnaton, J., concur.
ri te bg a ice
abet tnh ‘Yo amebhewny wild dnnd dud 4tt wow tom BRD
wdt ten oooge eat stad hover eueiows to ssoolg wet :
ae? sate pAOOL pLbage oo 820k pve mont omnes Remken
ee ee ye davouston «soa aad? woe
ae) an } zon + anda want
of ses watt a
Re
nee 2
wR Rats OY Mn ED TOE ey" ak, sae waite
2 REE Oita eee ou
PS Suc ea: Liha ey tidy hes
aed meio poiy + Ad
hietah Tae ee OF sith bai Hi .
PA eR AM MRM Le Sih
WERT orga s ONS
Bie oy”
Bo ee ARRAN aN Sune havens
ad ete ade. Ley oom soli havent eg ben saonntl pi
thhy tas SROs Wo WA wild Mh rekon ngomedy “0 Br eS aa
eee ROS GAR BE GO ARP NOE Qe Ono ent ve ous ki
Champa, Hots a tee he BRR a Beh Bee inane! ga Dia o
Keg’ Koisan ge sslaey gee uae aa RRR Pweo ez wode he tet i
grown, wedi aneyne wah Rot evn ¢ Kibee Moonee goat
Pe ee ee ——-_
= eee a 2
4
;
Hida hg LA
110 = 31239 On eo, Ly
ae ge"
MoINSRNBY KOTOR GO,, a nee # {\
Corporation, } \}
Appellant, by
nN APPHAL YHOM SUPRAION COURT
OF cook coumty,
AUTOHOBILE UNOERWHITERS oY a
Appellee, 24 vA | | f \, @ ( y ke 8
See NER opinren)
WR, JUSTIG? BATCHETS DRLIVERED THR OPINION OF THe couRT,
The plaintiff gerveration sued the defendant in age,
Swmpett on a Tire trawrance policy, the deslaration in ite seweral
counts wlileging a contract of imeurance entered inte on Sevewber
30, 1933, and ales alleging the cediflestion «ef thie sgontract on
Maren $, 1924; thet the contreet was for a tern of one year from
ite date; that on July 5, 1924, while the pelley was in feree
ning sutomobiles covered by the contract end leeated at 2469 South
LaSalle street were destroyed by fire; that on July Sth pleintirr
gave notice ef the loes, aid om July 10th thereafter delivered a
particular aceownt theres? to the defendant and performed all the
conditions preeedent eontained in the policy of ingurance; that
the defendant refused te pay ani? danger won the eole wrownd that
the policy had theretefore been aaneelied.
The defendant filed a plea of the general leeue and
notice of special defenses stated to be that it aid not make or
Aeliver 4 poliey ef insurance te the plaintirr as silleged, but that
on Kovesber 30, 1993, 1t iesued a certain policy of insurance te
Jemes T. Kelnerney and Joseph UB. Kelnerney, co-partuere, doing
business as Melnerney Metor Company; that it was then represented
te defendant that the property covered by the policy was sole and
wneonditional in these co-pertners; that at the time of the slleged
_ Lees there had been 4 change in the nature of the ineuratle interest
avos ao LER Cod sae is
| +yriares agg ”
BSod AT h [hag
fx foc So ye ol
Wane wet ak, saith
en ne tn ee ee
ene ‘ee. Beh Be ae. ad. a
| _ aon ome &e worKrto or ounar. nase s TIT 1 ‘
(ohn Of Heke teh o6f page aobtetontos: Mebrdtede eat ’OO |, nae x
kavovng ab} al mehtccaseoh. acit eating soaetvedt oust # ite singere
Todneyeh so aiut Dorian sranqueEl he Inatteom conn stcutoo
we tuatauce pti? te aekewad then, Mt, , 4
mutt tay wAe te ae oe 8O't a: Sem
eongt ai aew yas koa aed eitete es he eae
a Vhichskbede ae sgeig ern prin we peanuts eeiasini'd mite
# honevideh wt iawent A20L yhyh me bow ,ee0L wet Te wi ove |
ee iin bomotseg fie cuabse kod ast oF rnonee avin were 2 ead be)
| tad? jeorexesad te ynttey WAY a tohtoy aos tambsoote tne
f Sasd Deurers ohn 26d meme emynnmh Dhan yaq oF heuuten Jaws ‘inh Ce
| sbetiecnns rowd wortarerete Bact, witee om i
bas gual Invensg edt to aolq mw fell srahaeteh eG? . | dea
to oven #04 bth 24 toes od of Sotade eenaetwh tntowgn to’ ane :
sia ny a
tard dud ,bowetia aa Widuheke oa0 af eonewent te colteg a
( ed wonmaond Yo goto mbetroe # havent Jt ,RROL 98 xesuaver mo
gatoh .auperwegens .rouoaleld Mh dqnwel fae yoorwated .F enmwh
| ceniaeedmaima eased wsrllvichde shaves anebsnnsir yews
ie atom mate eo ksen wat et | |
ene te ous Po omde as te tn Iwinas tenes x0
of the eubseriber; that Paragraph "5" of the poliey provided:
*G, Ke action ehall Lie agninet the attorney or any af
the subscribers at the Exchange toe recever fer any less under
thie contract unless brought by the eubseoriber himeelr, *
That defendant woulda shew that the aubseriber wan a
Go-partnerehip and net « cerseration, an’ that olaintiff had no
ineuratie interest and mo right of action under the policy,
Seoondly, that defendant would shew by way of defense
that the poliey wae iasued to said coepartnerehip in consideration
of a premium which the sceportnere thereafter falled and refused to
pay, wid that by reagen of snid fallure and refusal defendant, on
er about April 19, 1974, cancelies and rescinded the sald contract
of ineurance and, in scoordance with the provisions of the poltey,
netified the co-vartnership by regiatered tani that because of the
failure of the seid coevartnerehip to pay waid preniun the =
Wae cane@elied and deoclered void an4 of ne effeet within five days
from April 19, 19%, an’ that eaid peliey of insurance continued
an@ remained cancelied and void and of ne effect,
Thirdly, tuat by the terns of the polioay defendant was
fable for a loses only if suetaine’ within the gontraet peried, and
that © the less by fire on April %, 1924, wae net sustained eithin
the said contract period, beamuae said policy of inauranee had been
Gancelied om April 19, 1924, and aot relistated or put back into
foree or effect.
Fourthly, said leas by fire occurred on the morning
of July 3, 1924, and that thereafter either the plaintiff er James
T. Melnerney and Joseph K. Melnerney, concealing the faet of the
#aid fire and less from the dei'endont, paid te on employee of the
@efentant a certain sum ef woney for the reinstatement of said
policy of ineurance and en, tonvit, the afternoon of July 3, 1994,
; an4 that the alleged lees by fire ccourred before the rink, said
a loss being knewn to Janea T. Ketnerney and Joneph M, Solnerney, and
a
i sbebivess Wunees att ee POO" ides
‘: Th Yan te el dl est tantega ht ‘thoy’ ‘tiie hy yh
—— MENLIEGAD Seettanane alt <P ence eesti Gear
8 maw toi troade sil acs woth Kiwew en ‘hail we ie iy
on had Wthatedy tease fan stinkegoouy ei #e er ne’ iil sd “3
te bdog ant Rete * ‘ite beon ¥e ey da oa Sik deere tak py Sa care
uns ted ta ar ete hiker fahueee tue edie” ui vilase
| Mahteredlianos of qhimancnégeny Stax ot foumat enw yolteg oit
at heaton bine baLin't Ned teonady enmattaqees od pa a
\ © ae , Pika tet Liew tex nom diet Slee “te seeaee gd tats ‘had!
i. ‘Powetitee Line oft MObalsaet han Ne (hwnd eCOL (Oe! hata sri
i OL fog S09 Yo waetwtrese one ae seeentetedinall. ond pi
tit Heine wHRe Line Densdelyot Yoh Game aa tqeed
: WR boig bike ttrsterg nhae Big 09” Liew . “ene
q ene: ‘Wo? BIAS ie Hon'tto an Te Bae - eer sdiicuaisiinall
eaten leserseamaiiis Lanand bhae wralanlpsrii
wih? bana Postiash e6d atiete seakereus seoretuibeaiians: “tov dea)
whist Seaistewm gon saw pONet {Or Liam ae Erb RT ewes ame am
‘edd Kinet wonmwoRt TO YOLkew bios seonaed jHalteg seattne
: odat toad tua xo heterenden sen bine Aula 1G be Ltoonea
: eon anend Bowe Ee We ee be ay Hwee GER ston tts x0 e760"
ee ee rec ey atc ‘ tinal
ais a A ke Hb eat to a NNN CORE So {HEN i bi
Lnidasnapatelpatecteyenhgnonn!s ex sedancpamnen ‘bie oft
Lhauelindcumenannehstond eb 0a canal 0
fas tae te» re
witneut being disclosed ty the defendant; that thereafter the dee
fondant, having learne’ the facta, tendered the return ef sadd
amount te the piuinti?r,
The cause war subsittad to « Jury, which returned a
verdiot for the defendant, and setien for a new trial belng over-
Pulled, Judgment was entered woon the wertiot.
Tae alleged errere asuigned and argued are that a new
trial showld have been gronted because the verdict wae againet the
manifest weight ¢f the evidence; om saccunt of erroneous inetruce
tions givn on behalf ef the 4efendant ant proper iaatruetions
Fequested by the plaintifY refuses, and beenuse ef the aded aston
of improper evidence om behalf of the defendant reesived over the
objection of plaints ”
The uncontradicted evidence shows that the policy wae
isaued by the defendant on Nevember 40, 1923; that the defendant
then had ita principal place of business ot Dallas in the State of
Texec, with a branen office in Chicage, vhich was in charge of one
Curtis as agent for defendant, |
The evidence alee discleses that from April 16, 1923,
wntil Rovexber 28, 192%, Josenn Nelnorney, Tamen Meinerney, wid
their mether, Rowe Melnermey, were pertners in the business of melle
ing automebiles, the sother, however, net being actively engaged
therein; that on Hovewher 25, 1923, these partnere organized a core
poration whieh teok ever the business of the partnership, an4 James
and Joseph beeanes officers of the company; that theae two, with
q their mother, held all the stock in the company; that the partnere
4 ship 414 business under the name of Melnerney Koter Company, and
_ the corporation aise uset thet name.
4 On Bovember %, 1923, two isys after the incorporation,
a Joxeph elnerney, ae eeoretary, made application for the insurance
in Question; Kr, Gurtia filled out an appliieation for insurance
| a saneinie oe gua at, tetegnan sar ene, ot SM ea
i “1986 gaint LO2Ts OR a TO. cMpitom hae , tahoe ron onit 50% stoke
gfe tia 962 man Derm ing gay, tmauh
| ie byte hae Demwhonm amore Den hte pee
ad Jontens cam Soihiey add seuqund hedaeyy mood, Bybee Qe nt “
soyrtonh exoetonze te seal a isauehive 10 a ‘sacha’ othe
neues ome, ae peste, reg pare ke el
ene to spies a saw dake yoame tao
a RON RS MIO S| Fae (8 ment TRIS | GRR
a
from information given him by Josesh MeInerney, wha testifies that
he sat in « postition from whieh he gould not sae what was being
written, s¢ the blonk wae Pilied, wid that after it had been filled
out it was shoved across the table to Aim by Gurtile, ut vhose ree
queat he wigned it. and passed it back te Curtis, witheut looking
at it or knowing its contents. Gurtis testified that ae did not
tna whether Moinersney read the applieation; thet he had ne reeele
lection upon that subject. The application vee, however, incore
porated in the policy wider the Senedule of Warranties, and as se
inoorograted teeited that the “subscriber was a partnership. *
Joeeph Nelnerney further towtified that when the ape
plication wae being filied eut ke told Gurtie that the business was
a partnership but was then incarperated; watle Curtis, eon the gone
trary, teatified that he 414 not ask Molnerney who the partners
were; that this was imeeterial; that it was lomaterial whether er
not it was a corperation; that it wowld have been gubmitted Just
the same; thet the rate would have been the aaue, and that there
Was net any difference in the risk.
ir. Hynes, an underwriter for tas seme office, aise
testified that 14 would net have been of any consequence in the
@ase whether the Melnorney Kotor Company wae o portnership or a
eorperation; that the rate wee the game, and that if they ieaeued
insurance they would iseue the sume one way or the other.
It in guggeeted im the argument for the defendant that
the verdict may be sustained upon the theory that the yneontradiocted
evidence showed that the policy was for the benerit ef the partners
ship while the loss was eusteined by the corporation,
The vertict cannot be sustained on that grow:¢. There
is no doubt here ae te the identity of the real parties, and it ia
always permissible to imtretuce oral evidence for the purpose of
i@entifying the real parties to a written eontract, A mere erronce
tate estan ite ecm TM shot Ge tat avy Mehemarotal me
naked: we Teste han dom Pika ott Go Rete sieet ‘attbeon “ll nae
HatLs? oeod hawt Fh vod te aed dam , better sat le | ae
oot patie ts jwhiany yi aie’ ot hited oie anottea be poh
“wie aie! a eo sland’ #E dievgsinde ped hak ra stot * of
oheowe ae hed on tute (ooltonticgn eat baow ‘sith a vomt
edad sas ‘eae heosrmeageed socal me SE : ay ' :
| ae eee se A < am s me
tit tte bic Wibiabie cce ie a es ye ht an :
ih naw Condes” 9 es tenth ‘gape xed i i edd Me cn & hips
wae wes te eleied o Lhe inetarcartowad - i's : sibecd te
reseed ait eee tel aes Fon Bes oa saith bol tone il
cot ae
i ee i ee 8 yer 64
———
i
pecan win i ll agrraror x avert — ‘
—— —
ous deseripiion of plaintiff will net render an insurance poliey
void, It has been umiformiy so held in thia and other states.
(Lumbermnen's Mutual Ine d Mai, 164 (11. 400; Kolieable tren
Range Co, wv. Pusey, %44 111. 164; Prignd v, Geldewhth, 407 Tia.
2 oe Ta as ah otis Coe, 210 TLi, App. S23; Davis vx, |
233 TLl. App. 566; Lanning y. Fire Ins, e., 199 Minn, 66,)
The uncontradicted evidence tended ta ahew that the
policy was iscue? without the payment of the premium, and that the
Plaintiff, although often requested se te do, failed te pay the
premiwua, which amounted to S175, Tt seems that 9214.44 was padd on
seceount some time prior te April, 1954, and Ourtis wrote plaintiff
atking in substance whether defendant might not have plaintiff's
eheck for at least a pertion of the prewium at that time, fhe
evidence further shewe that on April 19, 19024, at Dallas, Texas,
defendant wrete a letter addressed, *“Kkelnorney Koter Co., 271% B.
Sisere Avenue, Chicage, Lilinois, calling attention te the provie
sion in the poliey with refereice te eanceliation, and steting:
"The Autowobile Underwriters of Aweriea herewith givee rive
days’ formal netioe of the gumeelletion ef Pelisy He. 71281 Le-
sued to Melnerney Motor Co,**#*%o¢e Please take speeial notice
that a1] liability eof suid Bxchange wader eaid policy will abso}
lutely oease at noom on the 24th day of April, 1974, Wa enelose
our statement for 991.54 eovsring the earned premdiwa due in full.
Please mail the abeve policy in the snelose4 stamped adéreesed
envelope te somplete our files,"
A eontrolling question in the esse ts whether this
notice amowited in lew to @ cancellation of the policy.
The provision in the polley with referener to cancel-
lation was as follows:
*“Thie contract may be cancelled at any time by the Emchange
by giving to the subsacriter five days’ written notice of cane
@eliation *ith or without tender of the exeese of paid premium
above the pro rata premiwe for the expired term, which exoces
if net tendered whall be refunded om demand, Hetice of cane
eellation msiled to the address of the subscriber stated in the
eontract shall be « sufficient notice.”
Even if comeeded that tae netics ef cancellation was
Properly pleaded (which piaintif? denies on the authority of
ee ri IS
FOAM. Goo ’
ikog shaMMNTh Ae TObANT don LEI TE AteLa eRe we ware
ii sire tema hats a bToMt etree eee co into
ene akieed iets eee ae ane 43 mo 249 Goad
edt teas were 0) pes nd: piece tebe pment bisa eva wos Cl
_ i Saba! Hit guar Rratrens kt Se denonyom ott favwal ge bate b san oihtog i
wild Nun a wate yo 9d. 10 hnioocrint m8 styaros 2 he om on ake
¥ ao hhon naw bb OLE tari? anwne 21 et ES ot sont roan. sip ate aw dne ta s |
Wekdeehate adore adie tome, SED tee. 08 xedtg Male once savowos
VR faiaie avert ton tegde tanbee tee vesdnade, eranendue, ater sentl
EL. elt tate te maekonug 8h tte ta iouog a toned 4a 10 hoota,
MANY me Lost dm RAL 4 9E Chek oe tnsid awee ecieah wORehhOm
se BAND 408 odes morse nln? dovwewthem - unttel w stom 4 : ke A
nbeatg wit at anlvontts gabhiog paikeabtck yopen tad ounor eteato
agettate bee ,mekicieones 9s aaah iebw yadion walt ry
wri’ Tenet At brated aa krear to omg tawte bert otidenatin on™ iat ~~
monda 4Lbe oe ‘bias rei te
seolome oF 6 ah
sig ai awh pati po ng rT
peeps te hacmats tesaionn «
uo pefenoe 98 re.
widueie'§. ean iit OSE We ae tee Saud Sima
bitte cid a0 t ean aete a wo he
ro ton a . ‘ nae a aaa me A 0 doraeaeinnd |
veoh ion Per) te won ze favane a er we od irre wearin
ang AR dae RR RAE FS Ty ROMMEL as iors ; ig OMT b We
" i ome re tex ste Bae one Fay molatvoug eft vee mer
nate teed a ae ee ‘nal om ne ae ae Thali: at
, # rf
Bek SRE SN bi taut
z ¥ x i ey, ) . ONS
we > ba WR Ye Hy? % Ds ae BN Weld Buoy
ty sds ene
aN to és isvoane %
etre te Warigg & bs | et
116 TLL. App. 347), we do net think the
preef is euffictient te sustsin the contention ef defentant that
the geliey wae cancelled’, It will be observed that the notice
ia dated at Dalian, Temes, on April 19, 1074, and stetes that
the Linbiiity of defendant uncer the poliey ehall eoase ot noon
on April 74, 194, whieh would be five daye after the mailing
of the notice at Dalles, Texas, Vorfeitures are not favored by
eourtes, and they #1il net be deslared if such declaration ean be
reasonably avoided, Construing the section of the policy recital
abveve in the manner moat faverable to the pluintifr, as it ie our
duty to ¢do, we think 1% must be Beh¢ that the five day notice,
which is required in order te avoid the policy, meane at least
five dayo from the time the notice te reeelved or would in due
course of the walle be reeeivedt by the party to whom 1% ie
given, Any other construction might in some onses mean that
the policy woul? be ferfelted before the netice would in due
eourse of the maile reach the policy holder, A somewhat simile
lar provicion im « by-law of an inaurance company hae been to
conatrues by the Supreme court of thie state tn UY, 8, B.
Vueller, 181 TLL. @84.
There yan therefore ne evidence in the reoord
tending to shew that the policy bad been ganvelied at the time
this less eccurred, and it was therefore error for the court
te subsit that question to the jury.
the conclusion at which we have arrived on this
point will make it waneceessary to tiseuss other errore as-
signed snd argue?, although we will aleo etate that an examina-
tion of the record divalones errors am to the adoiosion ef
evidence and in several instructions given at defendant's ree
guest,
Yer the reasons indicated the Judgement will be
reversed and the emo remanied,
MeSurely,P. Jr andWehnson,. J/,- cone ANT ABHARDAD,
a
“eeton ‘ont he fe hevenade a titre et Aiettooeins | ‘
sade totats ‘baa, heme et fea ae nant Aas: ik
“neon ts ‘senao. ftove vo Loe oe ant mw bachantos Ye “quits
gadiion a2 ied%e weed eves ee \ teow 9 hie
. heravat pene ate aorews Je Taet nanet onthe ta oo iten ast t
“ed suo aottaxsiood sous 12 beresend vd faa Lite yodt bat 8 tine
Ration: we hhoq out ae Aohiven orig gahystened sbebtove ‘ldanoneet
BUM A OM fc ME OM ana ape
we ot a ue Mvadete eit ad a idasovar tan seaness eit uh eveda
Pes
soiton we wat oats sauats p kes od 4 agra at salad poy wh ot @ ‘ ee "
drew £ ts ann rye tseg out biore o aebt0 th Borkuper ef 6 a, ‘ea |
outh ty biwow te | ev iow a an tgon oat outs le ‘sett yeh ori |
| si " #3 aoste ar me aus ee oetone oa oftam oul te amie m—
: hs i ee ‘get .
“fast? na on eeann ono at bey hee aot towssaaas nosh eu ner
rt ae: Eee sete if
| nub at b kee ov iton eit anata bag erro? of hewow yor. ee sa |
| Py ee) a
“a state taviorasxon A xb Lert ‘witen ont Ageot ‘shtam edt ‘te etree va
ee gu stings er: Oy is gel We sy dip)
; OR MAGE mass yreeaton waeerntd fo 80 woturd mb nabe vote (at )
Ls a meriteeuvergiviar +s
hatin ah alt mk ofan whet te tee sora ae hl peegeeor-on-d Ware
eee ea Dy P ouien al |
fais Bs ae “ohita es, teide wt oe
" Kv at 4 be, Ag PL say ant y pee ?
brooen sds wa dommbive om wxateer dp saw anna erie son Va 8
oak? odd to be ieamen Mond hed yobleg oy Pash ware ot authaed a ad
Srar0m entd eh nee erelwinds any 22 dae yteenvaes anak, Abs ;
hein i: oxcnnvliien eta oHld of cobtonap. tact? sade ee
aed ae bevinss eras, ow sto kiw te moleuLe ann with
tt ie nig ony en ‘tasloy emmonth ot
a bee UM BE) Rane BERS snd mage
mbt owe Ak kee ow 4a
| ‘eae a ast Oy i A ees i
Ne en geenee
<TR aa sep ghagh
Toh so movky
eh an oes
hae
2%
Z Veg reaffeed Aecn < Caf tescietal Gure—-t
Filed alone Febry. 21, 1927.
116 + S31 2%9 SUPPLEMENTARY OPIEION,
A iA ’ me
MeINERERY ROTOR CO, a so i ia
Corveration,
Appellant,
APPRAL FROM GUPEHION COURT
OF COOK COUNTY.
AUTOWOHILE URDERWRITERS OF ig
AMERICA,
vs
. }
Appell ae. |
BR, JUSTICE RATCGHETT DELIVERED THE OPINION OF THR CoUKY,
Sinew the filing of the epinion heretofore rendered,
the plaintiff, appellant in thie court, has moved that the order
reversing ani remanding the cauee be modified and that Judgement
be antered in this court in faver ef plaintiff, appellant, and
against defendant, avpellee, fer the sum of $435,09,
The undiaputed evidence shows that the actual lees at
the time of the fire was $4899; that that sum became due on the
17th day of September, 1924, and that interest at five per cent
wpon said emeunt from that date wntil the date of the opinion
here, Vebruary 7, 1927, at five per cent amounts to $886,02,
making a tetal sum of $5495.02, "
it was contended by the plaintifY in the trial court
that, even if it were conceded that the notice of cancellation
Was valid and suffielent, nevertheless the uncontradicted evidence
shoved that it had been in fact waived, Thia court, belng of the
opinion that the netice of sialic atta was not sufficient, found
it unnecessary te decide that question.
Ae the amowt of deeages suetained ie not disputed,
there i» no question in the cane for = jury, oid we think, upon the
authority of re nena SAMARAS SS + S12 Thi, 365, ane
GOs, 9193 Ill, App. 84, the motion
of the siaiatit? sauna be gvented. That part of the order renand-
ing the sause will be set aside, Judgment will be entered here in |
favor of plaintiff, appellant, and sgsinet defendant, oppellee, for
the sum of $5485.02.
SeSurely, P.J., and Joinneton, 7., conour.
Re
-
te
FESS Yo hasaQhS A mses WAI
WSer ,fS .yrde@ enmole belit
MOLETNO YwaTonomcoete
Ce ha ee
ORL @) 2 ed £5 ws
Tas AOL Mott Rta ©
| Pics esr aM br?
ee
eo Een tee
» RIND. ait *o entarso ome “coast ax ‘remota ovo
” henetities exstetered wekmtes ot to gaily dod eonke sty
Celts add tans beviw ett ,Jeueo Gist ot set togad crvitatate ons i
“ goomghst tat See felt then @ ‘saves sat yathisadt baa anteteven: ’
fine ,fxattroes ,tridatety te coed! at daewoo eat at | betstian oe
20.80a28 to mea adt ot [ontioagh ,dteh hae o toh , tacitoge |
$s ones Kawton wilt dedd aweem ‘woawhi ee, Setewotionar ‘oa oh ond :
od do oub sctoed Ane Peay sedd [OeBRd vaw xT das sane i
fites tou ort? os Pontegnk dead bes tet” _ rohan Fo ro is nae a
nabatqe out “te osah ont Ki Paw "oteh Puctt moet Valdas ‘Whew ‘noew i
capes ot adnwons tee me ovitt da ver pra tie ered :
ROLUBNE Ne ait ator a Gita
Hueg kote sco ot “TeTratnky sue qe eetmnitile Haw OT seis on
aeitssinones Be valven osit david Sebeaton Wrew #1 32 Howe (tad:
soaphive bets thareneots est wae texteuereg (theherrtve bans bitter one na
itt 6 pelted .seuow WAHE LNvvliw owt ad Howe ‘Nad #E daild Hewede |
bee? dine true on ‘dail Nida Lada “80 wekven ody “daily "wa te
arpa’ todd osioad of cladter
ee yane Dol “— nih a
162 - 31282
MARTIN LUO, }
Appellant, ) APPRAL FROM MUNICIPAL count
ve OF GHICAGO,
CHARLES JUSDALE, }
Appellee.
on
ey A 4 af NK & . iD] s i : 5
fe 4 SE Leo FA @ VJ Fed Rat”
MA. JUSTICE MATCHETT DULIVERED THE OPINION oF THY coURT,
The plaintiff’ sued on » elsiz for money alleged te have
been loaned the defendunt with interest thereon, the loan, as
alleged, veing evidenced by an I. OG. Us of the defendant, signed
_ and delivered on November 23, 1914, and «cknowledging an indebted-
nees due on thet date of $510. From further memorandse made there-
on, it appeared that other sume were adwaneed and oredite given,
end that there wae a total belance cloimed duc to the plaintiff
at the time of bringing suit, including interest, of G477.22.
The affidavit of morite »lleged oy way of defense that
the plaintiff advanced these aune of money to the defendant, pur-
suent to the terms end conditions of a written contract mate between
Plaintiff and defendant on ‘sptember %, 19145, in and whereby the
Plaintiff had agreed to furnish the necessary woney to cefray 411
expenditures for the application and proscoution of claims fer
patents on a steel cound box and rotary steel] wound box machine,
_ and to defray a1) expenditures neccesary, plus $1,000, fer the con-
| struction of the said retary steel vound box mchine to be built
‘ by the defendant, in consideration of which defendant assigned to
' the plaintiff « one-half interest in al) the patente to be issued.
| The trial was by the court without a jury. At the con-
: : @lusion of the evidence, the court expressed the opinion that the
mt of Geptember 9, 191%, was in the mature of a partnership
and constituted a partucrehip between the plaintiff and
PHO TAGYENWR MONT, Lai A
® . : ES aa ae, Bis i Mong o
sODAHiAD kh ‘i _ oa
8S oO. A.l. ok aN & ‘ Rial a MAE 8h
tion Gur Ye Were meh | nny 4
| ons oo Sometla Yekor Te) athlo b ae bewe Vkeetadg ont
; ah sina odd owtads Gietedad Bahr thohaw te! site betel eet
; pomyle «fanbaeleh o€9 te 00.0 10 me We peemebive pike (iy 4
| shoddohe? ris ghikgivrswomile ome @ACUL « 88 ‘enim vet mo: bomwwil :
Psnioed oben abitvrencn tottiwt wort .ored wh each a ana
norte 4 we ivoxs fm baoamvas tow wind dts Paty botaegga #2 ono
“witntatg ante ‘oo bub vwmluto evmatad faded a ndw ovens Wiki tine 4
“18S. THRE Yo vduowwial patbulsike y ¢tere qatiattd to ‘emind ould on
sent “apmmete® te we w ‘oupaity ethton te dn EP Wad Mowe
~tq panadamieb odd oF Youom to noun poadd Séorinvie “Wtbatat “One
mowied sha santétus mteiav a Yo enotsibnes bua eared oud 80 Faire
“ outa xdorade bas mt .OEOL 49 “tedsetge! m0 incianso « besa —
Ma wate os omen pLsssooen an aa sanurt steraw't re o07 |
tot antate 1% motemeono%g 5 baa aotssehtegs ode
ae ot wh Samal ky seems oA fiat silt ‘bet
_ thud o€ 98 sntdorm noe “hawoe Looe wredon base an job ours
Laas bea Ke
he noddwrobiane
= oe ioe
Phas
ie
remedy
the defendant, end upon the theory that plaintarr’s vA > Wee in
® court of chancery where an accounting might be had between the
pertners, the court made « finding for the defendant, upon which
the judgment, in favor of cefenient, was entered, from which
judgment pleintiff has taken this appeal.
The defendant has not appeared in this court to support
the judgment entered, and we have therefore been obliged te eon-
sider the case without assistance as to hie views of the record.
Upon the trial, plaintiff testified in hie own behalf as
to the execution of the £. 0. Ue,the correctness: of the memoranda
thereon, and the «mount due, and the instrument was admitted in
evidence. He further testified that this money was loaned to
defendant after the exeoution of the written contract on
September $, 1913, andi thet there was no reason for its execution
except that defendant owed plaintiff money; that the money ad-
vanced was not used by defeniant in making a mechiney thet defend-
. amt teld plaintiff he wanted the first lean to pay taxes on his
house which was to be sold.
The defendant testified in his own behalf odmitting the
execution of the Is G+ Us, ami, over the objection of plaintiff,
he was permitted io testify that «t the tine of executing the
Ie O. Ue he had some rent to pay for the shop he worked in and
had to pay for power, light and cool to keep the place warm so he
| could work, and that he csked plaintiff for money to get slong
: with for the advancement of this work; that pleimtiff replied,
“We have sold this thing; we have entered inte a econtreet and it
_ i all settled now with the Nepublic Box Company. There ie no
i use of my ac¢vancing more money becouse you will get it sll back
— the Republic Company. * * * You give me a note for Garo,
and I wil. cance} thet as seon ae we make this deal.” Further
~~ tke
; eee
a sas Us a Se vetentely sad? quosds: ats mequ bate iuabaetad as ;
oct meswtod mel od titgta yasimueooR mm osnatw ervonadts te i wid t
tiokdy moge «iundnoked say xo yadamst a obam Su90 ond, 9 erent i
shee beta ne bnw ptmodme tes eo set aE seaman, ome
sLasqge ohtd madad gost migemiate } Seed Oa
dxoaqne of JipO RANY Be SurREqGM fom ond tus ‘aia , 2 aarinty
| ae setgiade Said ” . wash )
Oe bere saw yRmom abide, » inde nthaoeetin rire
epee AO Menten, mOdthee Vibe 0 montueane eK 10879, tapbaaten
Be kenoexe ohh Tok MOHNAE OR Bum oKOME Sat om (DEOL 48 rodmnsgee
abs. Yomas 240 ode TYRMOM THLRLOdG fume Saohetot det dqonne,
“dno ted set) ceektiown a punter ab Jamieson Yo bnew sen aaw dooney
BAK fg Based Yay Qe Maed taut? sae AT A ee ee
a sulaehine: Seat: shines, aie aL tektiveat sandra tod, om . i bins i ;
sVsataty. 26 peter Ann Tome, ple well an hail an ante
3=
that plaintiff said, “You know I promised te give you $1,000
on this mchine, ond we cen alse take care ef that.”
Lefendent further testified, “I used the money I got
from him for expenses such as wood for patterns, for drawing
material, fer time i put im there «es I had ne other occupation
~ im waking the mohine and box mentioned in this contract.
He did not advanee eny other moneys except this 9390. He sew
me working on the machine after he advoneed the money. I did
not complete the mchine. I had no money. He paid no more
moneys I gave him on assignment of the patent ot the time he
mace the contract." The defendant seys thot he used absolutely
mone of the money for psysent of taxes on his home, but deed it
te pay some of his current expenses durins that peried on the
shop and his living expenses, and “I borrowed money from Mr.
Tunew for living expenses while i was working om the box. Im
the agreement Mr. lanow agress to pay all expenees."
M The contract between plaintiff and defendant is in evi-
Gence. In Parvgraph 2 thereof, plaintiff agrees “te furnish ail
necesenry money to defray o11 expenditures for the applicotion and
prosecution of patents for the erid ‘teel Bound Box ome the said
Retary Steel Bound Box Mechine.” In the third parograph, plain-
tiff agrees “to furnish to the said Charles Jeadale sufficient
funds to defray a1] expenditures neceseary, plus $1,000, for the
construction of the said Hetary Steel Bound Sox Machine to be
built by the esid Charles Jexdiale.”
| We think this contract cannot be construed to require
the plaintiff to pay the current living expenses of defendant,
| and thet the fact that defendant gave his I. 0+ U. for the money
5 “advanced shows clearly thet the parties did not adopt any such
: “Construction ef these clauses as defendant elaimed.
The plaintiff «rgues persussively that the evidence
L
\
i
j
{
ae
0.48 wor wwdy ed pestuonty: 1 wont nod" sbhae Tibimtate aa ‘
"tad? "th one oted oeln MoD ow dma yentitoms atte ae
tog Toginew edt Xoaw T° pRoIdewod sedeewt tunbeoted + “nag 4
ytiwerh «ot pamnatdog tok boow ll aewe ‘eeamomR® ro} ms monk
Sehiaqanen vento om ke Lowe ekads gel tay £ wenkd 20% ctekaedoe
stowztneo shit ot demeiesom wed hem entdncm te pation mt =
Wem a WORE ake Sqopam: wept rede. ae omerda Jom 028.08
“bth 1 ogomos Ot bemanvbs ot cette emkdpain eis mo yeksron om
often on dhsy of estes on Sd Ly embsionm oat stoLqne ton
Wi MOS OSE Fe Meio wna, aes 20 snaapivne oe atl oveg i aeons
Cistolonsa rou so dod SYN SuebNOres oT", 2e0TImeD od. 908
#2 c9eh ous jouer wie ao wemad Ww sreawen set qomam, odd YO ome
ped std DOR OG Hote gainers seemngKe smov UO Ube Te sabe eam Od :
0S mote Bored Lanowted I bee qeounNDgA® amit wht dom pate
C vie onty ney gece mat Del tebe connogun oakvil xo? wamssl
| xo LL Yom of eeOagN wom VM JroRmOTO Os
ave at dt taninored se viteniale emewsed tumditrtos wilt 0! oe
iin dutenv? of” ancige Vbtekely tootidd & gegen At’ .onmed 99nd
bres motsvatiggn Wd TOT ROME Liemgate Lhs estes oF von easnooen
‘bina odd het net nome fomae she ws S02 eomodey 20 wotaunoneRE
antite ,dqeryvdag ventt oat ut “vdaddoat x0 newee (Koona ngentelt
‘aie fd Yat “SLabinwt ceksnd? btn oft OF sta terewy “9h” emetiga OTe.
“edd vot (000 kG aely erdvendon aun Lhadogne poe
vo hondlgesusislocadhene obra iguana: woh. ‘
Simi hk Olareak e@iroto ste sane athe
artuper od bawredenon od FOLRAS SoMUONED Bhd ands “Woe wr airy |
WRabACRIS LO wOkeigxe QmbyEL dmwrtOD esd banaticgans ast oa
eerom ads wot st 66" panes mundi
‘tom sh ~— ely bend pals tag 0.
"vat more
obo
of defendant was inadmicsible to vary the terme of the I. 6. U.,
citing Mumford v» Tolman, 157 Ill. 256; Murchic v. Peek Bross &
Co., 160 Ill. 175; Feinstein ve “prints, 234 Ill.» Appe 494, and
many other cases, but whether sduiesible or not, this evidence
is wholly insufficient in our opinion to establish the defense
relied on.
The trial court too, we think, erred in construing the
eontract (which was simply one in substance whereby pleintirr
agreec to advance certain someys to the defendant, an inventor,
in consideration of the transfer of om interest im the invention)
ae a partnership. indeed, the contract provides for the organi-
sation of « corporation te manufscture the articles covered by
the patents ond to #¢1i righte under the same.
fhe “miform Partnership Act (chapter 106a, Call.ghan's
Tile Stat. Amnos, vol. 6, in sec. 6 thereof) which defines a
partnership aleo states:
"Joint tenancy, tenancy in common, tenmaney by
the entireties, joint property, common property or
part ownership, dose not of itechf establish a par-
tmenchip whether such ce-owners do ox do not share
in the profits made by the use of the property.”
See algo Hand v. Allen, 204 I11. G5, and Townsend ve Gregory,
132 tll. ‘pp. 192, where om similar faete to those which here
appear the courts held « pertnership was not created.
it follows in our opinion that plaintiff was entitied
to recover, end the judgment is therefore revereed with a
finding of facts and judgment here for the amount of (477.22.
REVERSED WITH FINDING OF PACTS
ABD JUDGRENT HERE.
Johnston and &
Meturely, 7. J., and Johnoton, J., conoure
col of oh. ad? To sane? oct grey oF
agit Sos ow atest (885 «ttt vas one
finn 9S@d qq o Skt doe -adabss_.1 abotembes fom:
ee whois 4s yy 4
etriesive wird joon @ okdl susists: “comet ask ou eoeo sis =
ee.
ane onté diakidates ae menilge wee ab fone ie Yr.
0 5 ee 3s) *
AGO vie
Sh RE RO
ons wileutcaie mi hort sateen vr «008 ‘fuuve inte nat sna
Rall, ate ue fs GaN :
Hilhabonn hentass wont ade ak m8 Vismie 6 san 7 ton"
a i ae a iat ou
“as Pe avotvore reortaee “ns “a beobat +a
; 3 watoieas vali wage Muna ot eolsaroqiee a
“etme oat veh vistas ‘hea os ‘haw mosey. as
a ee aes a.
anally ito? .aadt sodustin) tan chtetons 1H scotia edt
SRNR: SA te ea, eat, pte 3
vharninaienand (eos 4 4 ) nee ab @ how von! $068 ok
wee wana am ey ye Me eae es
ui sanante oni
ei
:
tt heen ne ‘weet “otteete ‘no ea fiw’, ia a dhe a
Wray eer shay wat an ae ee ed iy
ikiotcasta cial tar Wek abe Walabult
TOT oO OMNIS METH tee hin
SE bce See oe oe ‘gpa a
PERT De OD ele YORE R See ee
BRE. ao ME a at. SORT
i tah signs ep ane HGS: i’ aN ediitee ee
ey a rae ec ‘hia ee i snl "iw ma
«Se
152 - 31282
PINDING GF PACTS.
We find ag ultimate facts in this case that the
defendant is inégebtec to the plaintiff for money loaned to
é@efendont by plaintiff at defendent's request in the sum
of $384, together with interest thereon from Octeber 15,
1920, at the rate of five per cent per annum, amounting
to $93.22, and making «» total sum due from defendant to
plaintiff of $477.22, for which sum we find the plaintiff
is entitled to judgment.
tant a
“ee sa é pine Rk
eee ae
aw
‘
*
182 - 413124
Re Co LABOAN,
i
Appellee, APPRAL FROM
ve GIRGUIT coURT,
PRANK LOVELL ond GOQK COUNTY.
G. P. LAMBERTON, ~
Appellants.
Ze Pal 5 ie |
Fey a. tole J) Fi @
MRe JUSTICE MATCHRTT OOLIVERED TAK OPINION OF THE COURT,
The plaintiff sued im acsumpeit upen = promiagory note
and upon trisl by jury « verciet wae given in his favor for the
sum of $1,559.65, upon which the court, overruling motions for a
new trial amd im arreat, entered judgment.
The defense relied upon wag that the note wee given
without consideration, and it iv argued that the verdict of
the jury is ageinst the manifest weight of the evicence.
The plaintiff upon the trial produced the note, and
the same wae offered and received in evicenee. Ne further
testified thet payment had boon demanded, thet he eaw Mr. Lovell
and Mr. Lamberton sign the nots, and that it was given for
$1,235.29, which the Model Auto Company owed plaintiff’ for the
rental of a gurage.
The defendant tectified that he told plaintiff "Tt
Would give the note temporsrily, until the Medel suto Company
made collections on open accounts te pay this indebledneas.
My. Langan sgreed to this and I told him to have Mre Lamberton
eign it with me.”
On cross-examin tion, defendant testified that
lemberton, the other signer of the note, and he, defendant,
Were in the cutomobile business together at Clinton, Lowa,
| from 1912 to 1923, and thet they ¢id vusiness under the
iy
:
id
2
4
Ag
ro
BOUT ASAE
TAGS TISAI
eFTRVCS HOG:
lag ¢ O. odie | AS b = Se Re Re ae il sie toe
emt Mer to WIT GANT cena TARTAR SETA, “~ 4
ai
te
a
Se. oe Ft ine gee aan s
2 Oe
atom ySoarkeem,. 0 meqn Ptoquuned me tane oeenamnade oat 0) ER
ete toe metre waked ni movig gow subindy «sua we paren nat |
a 10% adohtos galiavrers .2iueo aed iota age. (BBD, ms . aie
a Renee oat hewedon rAd a si , ake Si
sovts uaw stom out dodge sac Moqy belLox aanoten oat sh eal
seonentve wit te seytew Geatioam ofe: tembege ‘i et oa
| hts «oten exit nmowberg Lait act avg Pddmiely al Pe
oiidtt OM .anmebdvo od SovLeooT Hae boveTRo ws new ome odd
Lhovel .1M wus on Jodo «heduamed seed tad dmouyeg dads beth ot
WE wovig vow eh Gee bee ,otom ot min aod redmal es one
ed tot Vikimialg Sows yroqaiod ous Lobe’ od Mo taw 188 868¢.
i sy & te tates
I" ttasmtatg Atos en foetd Dok ths ome émehootod aT
Said bektituat Pmeane tes. eRO58 MiuaEx 9+ 6 BORD roe
ednanee teh roa hee cate od: BO sate. menttn at
sawol pam? dee end
ond tohew ocenkaws se op
v4
fs
an
v4
at
=
w2o
mame of Model Auto Company; that om July 19, 1992, he sold out
and didn’t give thie note until he was out of the company; that
at that time the Medel Aute Company owed Mr. Langan four or five
months rent, and that the Medel Auto Company afterwards went
into bankruptey.
Defendant further denied testimony of plaintiff te the
effect that plaintiff has eald he would attach the seceunte of
the Model Auto Company unless he received the note.
The burden of proof was upon the dcfendant to establish
the defense of want of consgider«tion by * preponderanee of the
evidence. leHicken v. Sofferd, 197 tlie 5493 Sehlotter v.
Triebel, 284 111. 412. We think the jury coule fairly infer
from defendant's own evicenee that the note was given for an in-
debtedneas of the mekers. ‘ven if this were not so, the jury
nevertheless could believe from the evidienee that plaintif? re-
frained from exercising his legal right to attach the occeunte
of the Model auto Company. In either enne, there would be
ample consider:tion for the note. The defense ia without merit
and the judgment is «ffirmed.
AFFIRMED.
MeGurely, FP. J+, and Johnston, J+, concure
tive bhow of g20@L » CL yh me sould rymoqmed odwh Kehoe aoa
éeid pyegmwo oe Se fun aow of Livan stom ehde ovdp, 4nd bag
a
Wy ovth mo xwol mepeal oS ewe yogmel eon Lebel oda ae todd ta
teew siriaeret'to yequed, ofm. Sebak eg, saya as Cal ;
li wit od ‘iktmlnig te -yeeatiaes geimeh tedexe’t snaps ted ty 4
| ~ gga meine was sama
| eoton ot? noviewer ot onsten eamqna® Otek Sahil eat
snibtidie 00 thins lb tan i ee ee
hs > pene robmegeng 8 ql eadiorethenps. me dtr re. sumeted odd
ov Wgidwtding AON WALL. a
A AN ER SE TANS A ‘
f
sie PRES, Rata GRO Ul ag 9 PPR ai que sad wrky bbw
ie ce a ME A Tn ene ate raeksoekton wesc
SERNA aE, RN A Re tue a ot Qi ateytond at
5 ow idan eh be ou
| Ba WHR CEE Ot Senin hn. gala Aa etd one a «a ea ae Cae ;
‘ a tinss care ody ma lai atin eel Aa aR, tk Soot a oe dunt
BN? g RUMRRY e boat
peneogan yi acti vit an ;
We menipmane seit eany eh i a |
DT oe a a, a
So
a
h
:
I
iy
£41 + 215735
&. @. BLTIEG,
Agpeliant,
APPR. FRR Gthevkt come
¥8.
Y COOK cOmirr,
ARSX SIPARY, oa gal
3. €. ZERECHER COEPAEY, a
Gerveration, and —% “s. PERECHEE ,
Appellees.
Reco te atl pt Wi Peet OT AP eat OMe ag
cp =
2 3 a “¥ fi - > peed
or f ! / b 7 7 A
Feed a j !
4 4
— AR CL AG VW Key My
BH. JUSTICR RATCHSTS DELIVERED THE OPXEIOR OF THRE Comer.
This iw an sepeul by the seupiaitiant from an order
which guetained the generai and epesisal desurrera of defendante,
3, &. Zernchen Company, « corseration, and J. €. Zernchean,to the
BL1i a2 amended, held the plea ef the defendant Arex Company te be
Legally sufficient in subctauce and ferm, and wen somplainent
@iectines te abide by hie bill as awended, dimsineed the same fer
want ef equity.
The bik aa onenitsé wae basset goon the Follewing
written instrument:
"September 4, 1990. Mr. A. ©. Bh‘ing, i917 Arthur Avenue,
piece Ili teeis, Sear Sir: In agsordance with our verbal
& of thie ante, we hereby appoint you te the position
Zanager of the Arex Company, oh a basis of a yearly
dreving neowunh ef $10 200.00 paysble monthiy. Thies esmpencas
tion te be aoplied againet the gress aalse ef thie company, at
the rate cf 94% eoemission om the first $250,000.00 end 5S come
mission om ever this atiount. Yours truly, Arex
vcoupuiticl “By J, & Kermesen, President. <Aseepted: 4.0. 8iting.*
The BiLA ae smendead avers that imaedistely thereafter
complainant entered upon hie euployment aid acted aa such general
Manager wmtil the 22nd dey of January, 1922, during which time he
Pegeived an4 eredited the sum of $16,950, “being the compensation
Peeslved from the esi4 7. €. Kernchen and the Arex Company te
Sate ef filing hia Gill ef complaint. *
It is sles averret that Eernchen wae during all thie
time the scle evner ef the capital stock of the Arex Company, =4
that furine that time Eorncher, through steck ewnershiz, ease te be
t
¥ th
. % wise sete. 4°
]
| Tae TESTS MONE A
seers oot es
& ea: as nge-l*
» TBS saz ae orate ast towne stake Sai
ePtentndt cictntimand tad stove bes sna ve HR it —
— sa basen baw ae — st _ te | * = i
E
4
the owner and in control of the 7, 0. Aernchen Company, an Illineie
eorperation; that he leeated the company in the effiess of the Arex
Company snd slaced the management andecentrel thereof in the hande
ef coeplainant, an¢ that cemplainant acted as general manager of
the J, ©. Kernohen Cerpany from the witdie of December, 1920, until
January 22, 1922; that coemmlsainant sesumed that Rernechen, heing the
evner of beth seppanices. "a8 autvorised to extent the contract of
eapleyaent and be aid, 4 that cempisinaent performed faithfully
ali duties conmecte? with the function cf general manager of the
7. &. Eermchen Company for ssid perict of time, but received no
- further compensation therefer, anc that he was induced ac te do
by the understanding that the written contract covered hie expiey-
ment as such.
The bill furtser allegee tinnt the contract ie anbigue
ows an4 eapable ef tee or sore menninge as applicable tc payments,
in that drawing acecwit asy be construed as advances in the way of
leans, or say be construed ae fixed lisbility a6 seisry, but avers
that beth parties construe? the saze to mean salary; that upem such
@enstruction, there was 4ue te complscinant the aue of 92509 from
the Arex Company unter said aontract; that the beeks, sales records
an@ secounte, whereky he oould show sconey duc ant oving for services
in the conetruction of the contract a5 advances by vay of loans, were
in the posression of the aefaendante, ait that he had ne meane of
showing the same, and therefore aske¢ that the defendants make
@isecevery of the same; that he usd from time to time requested an
Secounting, which had been denied,
By am amendment to the bill it was averred that the
account ef complainant was entered upon the becks of beth the
Arex Company ana the 7. C, Kernehean Company, in regard to services
Tendered under said contract, as evidenced by payments of sane by
4 eicatitt as ,ycugact oecpared rs E eat % Lets ace at 1 ote
Li [i BERS Riga: Serna
mets OF3 to obs EtTs eet a? Gongude ond betavel ox tase
ebaieat eas ud teerens fon) noe bap sania ro05 ad@ Jr . ‘
Se om iene | : |
wat gales «asian ilk tewien teectedioen tas + yaeer ba
; te tooxtaen le sandae 8} Bemlzertes ase 2a i ee ie Spade
aes a Se
we alsioet out + ate
PES ORRG ARS BE ie Hg
at ‘Dae ae BES us ak
oad tad? bexwteve
beth companies; that complainant rendered such services to bath
companies concurrently, uwiderstasding that the percentage bazed on
hie contract as sedified covered the sales of beth companies, and
that it was necessary te wdjust the amount of sales ef both companies
fer eaid term ar ce-partners in the empleyment ef complainant wider
the arrangesent ercated between them by the sald J. ¢. Kernehen, the
other defexrtant, sam¢4 between then and him as te #aid arrangement,
It was averreé thet the sales of each company amounted
te n eum exeeeding $75,006; that a large sumber of sales had net
been entered im the tecke witil after the termination of eesslaine
ant ‘es smpleyment, which sales shouwlk< heee heen ereiited te the come
Pisinant; that compisisant wae cherged with large sume of money paid
@ut for the esnduct of the bupinesa, ich sheul4é have been charged
te the businese; sii ef which made the acceuntisg ceaplicated and
4iifieult te praesent to a jury;
That during complalimant's eupleyment beth defendant
companies cesuried tie esme offices under eciplainant'’s supervision;
that éuring that time complainant reserted and applied te J. &.
Kernchen as the scle owner ané direster ef the speratione of the de«
fendant companies; that at the time ef the execution of the contract
Rernohen tol4 scomplsinant that comslainant was respensible te him;
that he expected him te take up sll satters in conmmestion with the
operation of the companies <ith aim;
That the contract wae vitheut the seal of the defendant
corporation and was tx fact made with the said Kernchen in the name
or sai4 defendant eorseration to be paid out of the funds of the
| #aid corporation as operation expense and Was xe sonetrued with
Teference to the J. ¢. Kernechen Gompany alas,
@he prayer of the bili was that the defendante should
ahewer ond om accounting defendants, or one of then, be decreed ts
Pay the amount found due.
er aN es, oS es
— aoa one
aged ef aenivrse Aoye SoeebaT: Jaeaielquos tans jecimeques shed a
. ben ee inegnoe Hing to sedan ad? hexevee SERA RPNONEEE
sh hte sel talline Jawinn of Tinesegem ea at fest
Tet tansiosgnen Lo ¢amacesgne adi ak aventrsecee se.amee hha TOT
ait. ,aacionued «0 .b Biwe od? yd ans neewied badcess, dammegneTTages
Asanopaicte: han 4b 00 st. hee sath anit, dite semanas
befayean yaeamcs Hous To eedae acit sacd torrewe gee. 8E so. % to ere
Jon Sed arise Yo sedewe agtad # ies {000,898 gathoosne me ie-od
-sisiqase te salteaiwne (952 ands Lhsm aead pdt) bewstas sand
209, dd 04 Ae9igete ved aves Since anton dese. q2uemvetene a tne
blow xoasu Ye some anvad dete bemsad> sae dewalatesos tact. rtanotate
bequests Gnd orad Biwe@ia ded v ,sasaious ed% te doabaceodd B02 ame
han tedentiques gals noesa ect ohen Apkaw te ife iaanaincd onto
ie aah reist 4 of aasaene of Seo tEat
_Amatenn sites, FeO A Gas * tanate igace antiaeh BaM 2+ bess one
caked H aenintan webay ecaitio veal :
tana oh 04 Loe sao tent am senion We | oO satinns og it BX
The defendants, J. C, Kerneohen and J. ¢, Kernchen
Company, assigned as reasons for a special demurrer thet the bill
Was Gultifarious and that it aspeared therefrom that the comolainant
had a full, sdequate. an4 complete remedy at lav.
the Arex Ccmpany fied ite silva, in eadeh Lt alleged
that pricr to the begicring ef this suit, om Jume 26, 1922, in the
Superior court ef Ceek County, complcinant brought am eetion in
escumpsit an slaintiff ageinst said defendant, a6 sole defendant,
@leiming damages against the defendant in the sum ef $3,000, and
filed a 4eeleratias in this ise suit consisting of the eeamen counte
with an affidavit cf claim, sliecing that after allowing all credits,
fefendant wae indebted ie hin in the sue of £2866,66; thet that suit
was Gased upon the sauce sentract Which ia here suc en; that the
APO Company Filed ite plea ¢f the gomerel igeue ta sald declare
tien, together with ax affidavit ef merita denying liability; that
4 the Cause came on ic be heard on Barch 25, 1925, before a judew and
#@ jury woom evidence offered by the purtias, and tast at che sone
@lusiou oF aii the evidences a werdicé was returned in sen eourt
by the jury upon te direction of the eceuxrt, Tinding tse aseuee in
faver of this defendant upon ine merita thereof; that aevieas fer a
mew triai and in arrest of jwiguent were beard and over-ruied by the
eourt and judjuent entered upon the verdict on the merits ef the
cause in favor ef dé widant od ageinet the ecompisinant as plaein-
tiff, ond that thereby the identical rights, eclnims, interests and
demanés asserted, aliccet and averred by the complainant in his
bill of complaint, were fully and completely determined, adfudicated
amd established agsines Sim and in fsver ef the defendant, end that
«the nid former action ut iav, the several proceedings had therein,
and the fine] judgment «tilt rerained in full foree ani effect,
unrevarsea, wanppealed from and not vacated,
| It is quite 4ifficult te underetand upon what theory the
-—
petinctad <0 hb one eedeeen QB LS (ebeeban Wen eats inccnae sige
LELE oct? Jess wert) feleoqe a tet eaoeaet ae hengieme ‘vehmemon
esacileal Said sovtewss beteeqes 32 Gaui bale eet we tte iee wee
ad te eboner weebenes hin gouge Leen ee
“Rege2th £2 Wpbde @k eee OOF Bosty cmegeAD me SME STS hey TOT
ed? Bi URGE {OS set ne \fie eles te yeinwiged ea SEE eee
© aE RG2ton me Kaos tana tatgnes -_SeNOD Heed te Pee ete
le - Suehew ies ehce te , tenets fine sen tege THinielg as teqmyoms
| Siti ,000,£9 Ye ue os) mi dunhao tet ont tealege Repmmely gateteke
f
atmise going et? Yo gaivelewen tow vod BLSt at aol teve feek aSetRe
.esthees fis gabrotie sels tac? ostgoits stele Ye aves tie am ete
Stes ded? tee p33 WOSSS Te ere 6Ks wt cuit eg baddenal wow inahentob :
eae G6 2 Hews Seen 2 ae écw does ‘enum ‘ech ween emai aa
/ svtsites Bien a2 quest Gvtewny oft i0 mode wed Be Ue ows :
i tus gedtidads yubqek eéicos to sveb eRe ae to $e -wondegon juste
Mee o wees BEE 28 stew ae. tent mat setae seme ae 2B
—* “gk Besiaver wiv dolbrow wee we )
ee ee ee
626i weston Bead Stobieds wttues of aoqt raetimotes i“
(sae YS RoUTere bas Pied onee Feeagint “Is seeeN
| gsi Ws stiaea was ao to beer ont? sage
rere Sane
vesalifietie™: ieabbdioie wisoe tones Se eter ove 8
Sead hak {YoatiYuk nt Le RGwaE AE Be sical
, ab otactt best anni boven tercived
; viel or _ae
bill ae amended could be sustained, and it certainly sete up ne
esuse of notion as te J. &. Kernehen personelily, for the contract
wpon “hich it is bseed shows clearly that he seted eniy in o
representative capsuity. There is a wealth sf authority te the
effeet that an officer sf a corveraticn is net personally liable
wbern an inetrusent wich is exeauted by him in the nome ef the
eorverstion. A faw of the many canes which alghi be eited are
Biers et 82. v¥. coutea, 37 111. Avo. 216; Thommeon vy. Yaseelman,
231 Til. App. 257; smstafeon, 151 Lili, App, 282; Eorth-
Tyrrell, 133 11. aps. 472.
it ie slear from the averwents of the bili that 7. ¢.
Bernchen acted only im a representative capacity, and that he is
mot persomally liable on the contract. He wes therefore improperly
joined ae a defendant ic the bill.
It fe ales clear free the facts set wp in the plea,
Teolieation te which was waived by the complainant, that coaplaine
ant hes mo cause of action againet the Arex Company; that ke electe
ea to tring suit at law unen the contract with remeet tc the same
matters which he seeks te litigate here, an4 that these matters
Ravine been litigsted and determine’ in the forum of his sen choice,
he eannet suceessfully now sainteain a suit in = court of equity unem
these matters. if he bad receversd in the suit at law, his eontract
Would have bean merged in the judement, and net having recovered his
Tighte against the defendant Arex Coseany unter this contract, have
been finally adjudicated. Flewing, Truster, v. Hess, 125 I11. App.
265.
It follews of course that if the defendant J.C. Kernchen
Company owee complainant enything for the slleged services rendered
te it by Kim, hie recedy at law would be siple and complete,
fi de
The decres is affirue a :
KeSurely, P. J., and Johneton, J., concur.
ees
eee
a?
on qe eons yfatatuas $2 bow ,toctaréne of Myes Behasme as este ie
“Pertgass eile Set Qahiemetee neveowet 0 0 of af WR Ieee
ont clas Hoe ot ate er Sant YE ie ag
#4? ot qeivovtus ‘Te Be feew we ot eredy eotewqis Sr itetaonetess —
Sivelif elfencecs# se¢ of sei derectes @ Yo ‘esTYte me eer tn
end te exch Sif af abe ev Bedoeoes wf koletd Sumeateenl ae Wee
SE A Ra et CNS bon cn
’ eS ete Grae see Ye pe nenieee aie waa area TOhe i sft
eb oS ten? San Fiosgne evitetasne wet « at ine Seton mone
ebeeks ex Sant ‘pymcqeies meta estt ‘dita Witeina “4a tll
esti eit 62 foscest Milv Yexstase SAF sege wet dn stele jae
| eden Seed? felt te 5 sesashooncntnsles! wien oe wit @ 2mm
forrtees eit leet Or *tex ‘sith ‘af heteraeet e*
ever meee pndhognninenpsidnaty St aa A
a teg tithe” bo eA aee 2 ee Pea ee eee. 8 iced cid ical see
314 ~ 51446
PRESTOR W, BARDIN, CHARMS LL,
HAMILTON and JAGOB &, LEVUAK,
Cepartners, Trading as HARSIB,
HAMILTON AED LEWuaK,
Appallante,
mn APPHAL FROR CLNGUET court?
SAK VELDERAMP,
Appelina, ‘244 1a E99”
RR, FUSTICH RATCURTY DELIVERED THE OPINION oF Tie coURT.
OF COOK COURTY.
The plaintiffs aued in trever for one thousand saecke,
368 pounds of onion seed anf 1446 bushele of eniens, of the Yolue,
as alleged, of $5,600,
There wae a gles of not guilty, triad by Jury, ond at
the close of wll the evidence the court inmotructet the Jury to find
the defendant guilty and asaesese the danages at $40, The verdlot
was Teturned as dAiresied, a motion of plaintiffs fer « new trial
Oversruled, ond Judgment ontered on the verdict.
The evidenom tended to show that pleintilts ere in
business at Loulevilie, Kentwuoky, buying and selling enion seta,
a burinose in whieh they have been engaged for thirty years; that
the defendant is a former ot Lansing, Cook County, Ditineie; that
in March, 1924, Br. Menigernburg, casting as agent fer plaintiffs,
delivers’ ta the defen tant 20¢ pounds of enion seed and told dee
fandant that plaintiffs would give him five oente sere per beshel
for onions growm from thia wand than the oustemery orice pald by
other dealers. In compliance with that agreement the seeds were
furnished by the plaintiffe to the defendant.
Later in the sucmer one of the piaintiffe, Xr. Hamile
ton, tegether with ur. Renigenburg and ir, Dillner, went te the
farm of the defendant to inapeat and look over the growing erep
4 Faised 4 from thie seed, At that time kr, Rawiiton asked tae de
haben one <. werent a 1 bean abRdaated net
aes VE th Rees
v7 & ® aud 2
on liens Ne ganntns Yo, ev nO bap y Sth woo, .6
aus i , ape sinha wi ras pA spay hy RAGA RS ‘a pd iy i ee 9
ena ie *%
te baw a, soit outs eh rie : mes for erat cnn
batt es ed yarl od? hevourteal sxyco. out lonestve, Mca he. oe en eke.
‘1
Me eA hog Pps WAAR Si
tutdioy ont ObE. oa gopnenah acid agene Bue yeti
weet hs oh > age’ Rama aarti we rue Pi
hated v0 # 10% aMtaintg 9 wos on #
a edt
yee be hs call ue ie
erases gant woe et Pe pamensen : ae
sone aS OY Fae Wee Ee Re Bae smth “ie wake ee
8 toa vine patios bam yniyud pMlawsaed yo Ltivm hey,
BCID a waited, AREY Ga fe Re Uh! eee GeeRe ree Pd Raed 2)
edt tetane hed <0 Deye gem mond wed wodd.
war it "sab ex yd iP) ee sk & wn ies Eo apadl See
omticx ‘ubwod. Mae te
satael etre rnd’ a eS eS
ttl tea ‘tet ed Crd pain
‘ 7 * Taio $4"
te A givhoes ff tees
sll) balay as
Paes ane
fendtant where the erop wee, and the defendant teok hie inte the
field whore the particular erep from this seed was indicated by
@takes and eald, “Here le yours.* “efentant alas stated that at
that time he thought the crop would produce between seven mad eight
bushels te the pound.
In October, 1924, (that being the time te harvest the
enione), Sr. Nanilton and Mr, Reigenbarg again went to the farm of
defendant, and. the evidence skows that kr. Hamilton teld the dee
fendant that he had come to reesive the onlens, Defendant replied
that he knew nothing about it, and upon being reminded of the
faet that he had before thin shown te the agent of the plaintiffs
the onion sete srowing im the field, replied that he knew nothing
about it. Plaintiffe sent defendant one thoueend sacks to be used
im sacking the onions, ont sftervardea visite? the ¢efendant and
made a demand for them, After reading this demand, the plaintiffs
tendered Sim in woney $1724.40, ehich defeniant refused to necept.
Mr. Benigenburg teetified that at that time he aaid to the dee
fendant, “I told him I 4tan't want to get Aim or anyone elise in
trouble, but that he wane't going the rigit taing, sand unless he
eame up an4 ¢i4 what wae rigit he was golng te get in trouble; then
he sald, ‘I never have refused to deliver those seta.!' He waid,
'Sive me two duys to think this over, **
The evidence further tended te show that the market
Value of onions in Ostober, 1924, was two dollars a bushel. The
market price of the bags waa four cents each, and it is apparent
that the inatruction given by the court was upom the thesry that
the defendant was liable for the value of the bage but that “he
was? not 4able in thie action fer the son-delivery of the onions.
ie,
Bre
—
t
The controlling question im the ease le whether the
4 “Plaintiffs are mtitied wdier the evidence to recover the value of
! beet
be tiga oumpierod Yates os aveeeen ad sme : ok ott test ¢ anh en’
Rcediend behetain waked wma bie th susie gntison oe on
theseys Peatraeat at Bieta ye een: fae & were ote os
.tq0en OF Roar deer aw'toh banker (28. 60108 sro ~— t nerwst
(th oe) Of ban mul wunte eh -te wee DAT HeeNt g : : at
a eo Seay We tet doy od Fume hae hy Etat Bit m «tas
aa ate Lens dione gates Pride oath gutting atwnaw ont Saute ean “ |
ss eanogeh ad toy of withew anv ee aa Suite bkh be bet nae
we fasit 404 cand Soot :
¥
Thie agtion was in trover, and in order to maintain that
aetion 1t 1a necessary te show a right of property and pessemsion in
the plaintii? whe nues, There le no doubt thet growing srope, #t422
apnexed to the ecil, may be sold ae pavnenal property and that en
ae@tual ganual delivery ia not nesessery in erder to veet the title
in the vendes, I¢ was so held in Bul}, v, Grteverg, 49 Lil. 651;
Graft yv, Viton, 58 T1l. $73; : @, 82 TAL. 386, 022
of which cases were decided priser te the aaotuent of tha Mmiterm
Sales Act approved Tume 2, 1915, seo SeltheYura’s Tiiinete Rev.
Stat. 1925, chap. 1914, ». 8261. Ya do not find anything in the
vriefe which indicate that the statute mm why changed that
general rule. These decisions eld (am the statute elee declares,
gee sees. 17 te 16) that im contracts of aule no property in the
goods is traneSerred to the buyer wileaw or until the goote are
ascertained, ang that whare there is a contract te sell weecifie
oT ascertained goods, the vroperty is transferred te the buyer at
such times ax the partics te the contract intend to be transferred.
these seaticna further provide in substance that fer
the purpose of aseertaining the istentian of the parties, regard
shall be had to the terse of the contract, the conduct of the pare
ties, usages of trade an4 the sirewusetonces of the case. The aacq
ond rule for ascertaining the intention is: “Where there is @ sone
tract to sell epecific gocda ant the seller ts bownd to do something
te the gooda, for the ourpone of putting them inte a deliverable
atate, the property dees not pase until euch thing be done,”
Ae the defondant pointe out, the avidenee here does not
4isalese whether the crop pointed out waa ever harverted, or if it
Was, how many bushels or crates wore produced. The proof also as to
the contract iteelf ia very indefinite in that it dees not appear
when or where the orep purchased wan to ba delivered, nor is there
wa sotaanareg tan tegeng, ‘ tea. & zosse, ot ™ wn ssn
aches AO pabreRy dads, Chao 98 4h MRORT ow =e be
te tal han YEgeTG sanewieg Be bine od Kam yhhom ete
‘ecine eat gone of rete wk yuaosons Peer werites win
Sd paed .LEk Of hy fad bios 08 ro a: cote
“Ha ee Pe =| ~
rant eats 4 aia, ata, poi Shoe | nantabhels sania ok Lrg. a
st mh xtaegerg on ofan, te eipaatane at, Jadt (a oo TL, 0098 oom |
Nive Ran ae
ote aboog ot Sitow tH weekam worm eae 98. bensele and ab ehe
ea!
Piguet s
thee ine pt soowage # af Heesd, weary, oP ae
ta towed ond ef tain teaers at qrueqong nat, .whooy bombed ;
beete'taaert od oF Bunter fantduce Om? od velitag oe gama ae
‘sot tease ova adie a4 sbivote usigurt saoisoon mead® 5» tg dantaoet |
brwgor ieoltung oc? Ye apidantas od¢ garadadoonn, to enom er
see oe te somhaoe pfowttiice ot Xe wmeod wat ot hak of kasi
daring Ost .g0R0. ats %, ee Tee oh beet baat te, aezave yaokt ;
noe # wt rindi oni" tek wolgows ad exe gatalerteoss na? ete dae i;
_ BabAtonos oh 92 Hewes gh rotten aid hon adann oMitoagn flow of Ponte
ieee ten maint mad? qaltieg 2o pe aynug met COX. aho Mp MANOR
siti ga SRA: ME, AAAS, Aree AR RA ape dom ape xereqote nat yatnde
) tem eaeh gant, eomeh smn 988 y tH AE MLag Aah AOD .eMF Meso yeo0id dente
|) Gk UR ap ,petaowsad, teve gow fy. tegatem, qoxe rat oriensivenatoed
| ot ae me dents 0, sept el vapid
Oe Or es
4efinite evidence of the priew that waa to be paid,
if the title sn/ right of porsearion passed te the
Plaintiffs,then in ease the crop was dewtroyed plaintifis would have
been the losers, Ye fines it 417fiewlt te believe that if thie erep
hed been doetroyed, piaintiffe would have admitted the lose wae upon
then,
Plaintiffs may save hud a right ef aetion fer the falle
ure of defendant to deliver the crop of onions am agreed, but the
property not having been deflnitely ascertained and there being ne
@videnoe in the record tenting te show that it wae the intention of
the parties that the right of preperty and scasession should pase
prior te the aewand, their remedy, if any, wae not by any of trover
for conversion but ween the contract fer fetlure to deliver seserd.
ing to its terme,
The fudcment te affirmed.
A¥YPIRMED,
MeSurely, P, Fee and @ohnaten, Jas OER OUT»
wn oie 1 nit voila of stoornese vb beta
PN, Sq etl
be Cet ae Ae eee u nt
aT aN ES Tinh Saas Oe SS
Pi ella ee eee
ee ,
RR a sr Wee te amy Pes
RNS
Cabal inte ee a
‘ Wy 2 ts
‘ah: Week a thai ei as ey
ee Ce tm i
one tpe ee, of, Hee AYA ed bo oe ame tree
Mose vt =a On ere aie ae en bit
386 = 31458
OTTO BACH and OTTO A,
PORMTETR ,
Appellee, }
} APPEAL FROM BURICIPAS COURT
v8,
GY ONICAGO,
KRATHENIA PATTER,
Appellant. <a us — .
CD ae Faas rm 6) ©)
a A of uk © E ae \ 1 t
WA, JUSTICE MAPCHETS WRLIVERED THE GPIETON OF THE goURT,
The plaintiff aued im foreible detainer to recover the
possession of the prenises describes as 87 Vout Wlmw atreet, Chicago.
The cause was heard by the gourt, there was o finding against the
Aefendant and Judgment therecn, frem #hich this sopeskh has been pare
feetes,
The plaintiffs have not appeared in thie court te supe
port the Judemant,
The evidence tends te ahew that one of the plaintiffe,
Rostaker, was in ponserston af the gremiaes Jointly with defendant
a8 & GOelencen; that he and defendant were econdueting a reoming-
house buginese together; that defendant gave Boeedeker a chattel
mortgage covering her interest in the Lleose and futniture te secure
& note of 91400; that althougn the business was apparently orespere
Ouse and the rent as it came 4uo woom the lease ould by the defendant
and her note was not yet due, Beedeker, upon the pretense that he
felt ineeoure ond wisafe, took possession under the chattel mortgage
_ wad pretended to mali the lease to his eowplaintifY, Otto Sach.
a ‘fhereafter Beedeker and Bagh Jointly brought this ace
; tion to secure exelusivs poesession,
Fs oi Dafendan} contends that the statute does not give a .
right of aetion for poseession in such case, on¢ that the court was
therefore without furiadiction; that there ta a missoinder of
vase gates pie wore taceen i sat
fa tg Be Th shee
<naaee eT BO cranny: cee CMT et rE 1 nyt
at. selene: ti iphaehhAbielees ak:teue Tebeababgoddtanht
vant gues wee sna eu had Ptoweh eon samrg ostt Re A
“Tag ‘nant nd tenes ent Ho bie meh yron-tunle seman ae
OTA ALO le att ‘Ye one tH? were We @hoind “were
thohucrwh Msiw ~Lontot eomkwnne On Ye nodeneeneg ak naw 4%
q | ketusts A tHishoal ovay Hanidw ren Gach | end ent
aS omose oF @mud toe? bas sont ade at Seotndah vod aalsevos syage
parties plaintiff, and that » jeint tenant eannet maintain an age
tion te reoover exeluaive possession from his esetenant,
This last proposition we have held reeently te be the
Agki, 219 Til. App. 334.
| There are many reasons (unnecessary to diceupa)
which would justify tae reversal of this fudgment, end it ie
therefore reversed,
: REVERSED,
MeGurely, P. J., and Johnwon, 7., concur,
Ae gue
ee ea ae
yevibratese mr) on i AQ we We
oh UNO HRB eccrine ty fits: gr cone eNO a
bs nun i ae. deenioms ener ce ee nets
Oe
anes we —e ah boas ant ae aero ee
pesnene wait on hue wind: aailt wikdinle e spans: Rk ne |
od se acme itt stoi eet, to ek one oun
aR Sas dose ade aati A beotewog ‘hone ye hema bee
etal wea 1 Vhatanw oon eR oh ‘pense ali el
al mitt soaniae ein mane ‘eer "a
a
31628
REXBRANDT LAKP CURPORATION,
a Gorporation, IB URRLOCUTORY
Apoellaee,
‘ APPYAL FROM CIRCHIT Com?
ve.
OF COOK ConEeTyY,
WIiLTsi ABRAMS et al.,
Apoollanta, >)
Fey 4 T A f S ) } |
<elhe 8) es
ER, JUSTICE JORNSTON DELIVERED THE OPINION OF THES couURT.
This is an appeal by Yilliam Abrams, Jack ¥, Cohen,
Lewis Isaacson, Ben Ieaaesen, Hebert Bloom, Benjasin Lerman, and
the Metaleralte Corporation, the defendants, from an interloeutory
order granting an injJywnetion against the defendants in a euit in
equity breught by the Rembrandt Lamp Corporation, the complainant,
The questions presented fer review are raleed by a
general dewurrer ef the defendants to the b111 of complaint.
The substence ef the allegations of the bill are that
the complainant ie an Tliinele eorperation with a paid capital stock
of $789,000, engaced in the business of manufacturing floer snd
table lawns of wooed, wrought iron, ete... and lawp shades of silk and
other materiale; that ite prineipal plaee of business is im the
ity of Chienga, state of Tlilneia; that a good wiki and trade
Teputation hae been developed in the lavup induetry that de of
ereat value; that it has 6 well trained orgamilzation of employees,
lsborers, durverns an’ mechanies; that it hae 408 empleyecs in its
feotory and shipping departnent, more than 50 euployees in ite
Office ané more than 20 salesmen; that the loyalty end devotion of
the employess to the business are factors eesantial te the success
nad the development of the business; that the confidence of the
iz employees that they will be treated fairly by the complainant is an
t of considerable value to the complainant;
% ‘
~— Oi i ke
defendants William Abrams, Jack Wg Cohen,
— i 5 es
te Gl, oF “2%.
ae, nrmer9 0m, is cilia cee Geen eee
REM m99.%0, ee Cor ae ft aang
kor 2 5 Aapabaabe
mn ro ete Me ce so
ine eee
“in: ee soa saneeds ms bree w tase 8 vo aude
has er duel ney , AOR
is
2
>
.
on ot Tn ea
ad ee he
ohert | San fiiw. hoow a said roxpntiter te: taki: _ .
te o vad wiennat, sare anit at i raagginsies
Leuls Ienseson, Ben Leaaceon, and Robert Bloom were st one time in
the employ of the compiainant, but that tueir empleymest is new
$erainatad;
That durray li. we@wis ie in the saploy of the complaine
ant in the capacity of advertieing men and ssles manaver;
That the defendants William Abrams, Jack ¥. Cohen,
Louis tsasesen and Ben Ieaucson mtered inte a conspiracy, beginning
in February, 1926, te infure and ruin the business of the complaine
ant by “actively, maliclowsiy and whlawfully endeavoring te persuade
eertain exployees ef your axvater to leave the employ of your orator
and by interfering ond molesting your orator ant its emplayees by
the false, fraudulent, malisiouws mesons herelnafter set forth, fer
the sole purpose of obetrueting ant ¢iserganizing your orator's
businers and hareing and injuring your orator and ite steckholdere;
that sald fefendante ai4 unlarfully enter inte a combination and
Conspiracy te injure yeur crater, in wdermining the confidence
Feposed in your orater by its azployces and by destroying their
spirit ef loyalty towards your orater and endeavoring te entice
avay the suployeen from your orater and inducing and endeavoring
to induce then to leave your orater's empley;" that Robert W. Bloom
subsequently foinea the coneotracy.
The bill them sets ferth in detail epecifie acte of the
defendants slleged to be vrongt'vl, which the defendants committed
i Pureusnt te the coreniracy, the last of these acts having been come
“mitted September 17, 1926, The alleged wroncful sete consisted of
‘ ‘Statenents made by the defentants in conversations with certain em-
ba Bloyees ef the complainant to the effect thet the employees would
situates oat 6 cosas ett ad al giwek 4 A worst satel Lie Sib
jtegeitom be kag esti cnet Baie Laceewiaas Ti gp ee oe,
hy _ pttedod .% Mow jalin tia ie 2428" feat tes ond suit Ae f
gaiantyed Sgiatterinen & oink boubsar aeevesel asd teu sosoaeet ne
otis lems 648 to exeniawd ott m@bretne omenen ae diethiionis ue at
asad bode od! Kine rer Se
“baie wo bboattuos n 390! setae Ulhitmetod BEE
sommbet08 ‘anit anki Ls ann vfs me sta 6
a dope pee ind re hi dua” syowrtes s ne"
te teow SENS Tee ‘eget! ear saree wen ® sini
san sidmd-tnn KG ea taersiviion” wit walnahantten '
iP 1G te ss at oor ta
AUP RAL aa —— te how i iiss. aaa ,
Ce Re hi:
MAR OR ee Ce By. ?
plainant and that 1t would be better if they left at once; that
Abrams was glad that he had left the employ of the complainant;
that Abrame, Cohen, Louis and Ben Isaacson had organized a Llomp
and shade businese and “intended to induce” many employees of the
gomplainant te accept eeployment with the new organization; that
"dirty deale” had been “pulled of f* in the factory of the complains
ant; that Lewis was a “ereok;" that Lewis and Abrame had been
holding meetings with some of the employees of the complainant for
the purpose of getting so large number of the employees of the come
Pluinant te leave the complainant's employ and to join Abrams and
Lewis in a new business; that Lewis “*had cancelled seme order in
anticipation of going into business «ith one Koos,” sm employee
eof the complainant; thet Lewie wae doing this to build up a followe
ing of bis own; that Abrams wanted some salenmen ond asked on em=
Ployee of the complainant “to help him out," and “to induce several
of the salesemen*® of the complainent to leave the somploinant; that
the organization establiehed by Abrams, Vohen, Isaaceen and ethers
"head a line of merchamAise that «as far better” than the “merchan-
4ise affered by the complainant;"” that the cempleinsnt had been
"skinning" people and had been treating their employees “very we
generously and unfairly;* that the sompinainent treated its em-
‘ployecs in a “very niggardly and esifish manner and that the
employees woul’ be much better off if they would leave the employ”
ef the complainant; that the complainant's methods of deing busi-s
ness “were not clean,” and that the men at the head of the com-
Pleinant's organization were "not white;" that Abrame ond Ieaaceon
took some of the employees of the complainant in on sutomebile te
their factory and endesvored to persuade them to aecept employment
with Abrams and Issseson; that some of the defendants atated that
the employees of the complainant “would not get a square deal;*
that Abrams said if he “could get some one to take care of the
fF
|
!
|
_ hen giles Yo abwidom a eanakelgnon oad sald :sanahacene ah 10:
tt penne te POR yest TL messed od bhwow FF Peds hewn! Pelee late
jw ate Leen et Le yokamr vat el teow detd Baty aa inet
qed a Senbdgté bik wetenent at te cheek adel vomaeda 7
phe, a aseye fame ‘ene te ‘euphat at tebon oh poe seentend ehede |
tactd (Motteninepre won a cote Peele Speen od : _—
sake lqmoe ait “te -etadee hs: eelh ah Mrte het ceg need haut "aloes aus?
: Shed tat ammntA hae aie gece "sdeete® #& saw ebwad, tase hme,
- Janes ba Scere ot le enogedqme en? To. amon ddde anak toed g mH Laat
ation itt 0 onoyelaam os 10 tedana outed # ymbtaey Xo, eneetng, et,
Ae EN AO, at fees Cit a! emote aman, ONE, A
ai sehxe Hawe bel igeten bad” gtwed said jetonteyd: wir a at hwo
eeyodiongs te * babi eae athy aseatend otal antes 0 uizontiasnd’
owotiet a at bdied of alent gutet sew eiwet seald: {nemo temy: sult 6)
om Aa busine bath Momwntee ome betnew bamwetA tome powe eb % > an
ieteven soubud oo" bine “y ho mbt qd oe deorithotenae: side eee
tate pdewwletqnes edd ovde o¢ thewtatemon sat re Mano one £98 ae
etedte ben abenmes? yeeros ,enntda yd bere tidarne nottestongre ody"
-nastonon” it madd Methited Ht Haw tort weRbaniteee ee
mtup Yee eeeqoken ates gathewte mo hed tan etgose *gaban ita
amo aft hedawnt haus be Lepnon OMe seate Syele taltaw baw ouike ro
itd tout bn xenon Anthea bow ytbmagate grows ab enegole:
“eokony edt overt biwee yout Uh 116 wohted downed ptuew aoyatenn’
| niten Oc RO Baws ot Oe MoM Odd todd Sow *medtD- lalla
soareast han amarda dad *yedtaw son" ox0w wot sentuoyto at day abet’
of efhdenotse on ab Penal lesen ea ‘iareaincntee andi ace ood
selling end® of hie business he would “virtually put’ the complains
ant cut of business; that the complainant “was about te break ite
eontraet with Lewiea; that Lewis would be discharged; that ae goon
as Lewie had devoted all of his time and attention te* the com-
Plainant's business, and had given comelainont "the benefit of his,
Lewis’, recommendations and ideas” the complainant “would discharge"
Lewis; that Abrame “was warning” Lewis “merely as a friend;" that
Lewis had “many enemies" in the organization of the complainant;
"wae disliked by the officer’ of the eonmlainant, and that Lewis
"had better make arrangements for cther employment before he war
Gischarged from® the conplainant's employ; that "the officers” of
the complainant were "tricky" and “ercoked;" thet “particulariy*
A. A. Bitz, the prevident, “was tricky and erooked,* and that Lewis
“would be discharged;" that 1% "would be much better* for Lewie "to
leave the complainant at once and te take comloyment with the ore
ganization of Abrams and Cohen;* that moet of the employees of the
complainant were goin to leave; that the exployees were not loyal;
that many of them were ready to leave ae goon a8 Abrams and Cohen
“gave the word;" that they “vould offer" Lewle o desirable comneee
tion with their organization; that “they knew that Lewis could come
mand at least one helf million dollars” of the compiaineantts busi-
ness; that if Lewis would “agscciate himself" with Abrame snd Cohen
he would make very much more money fer himeelf;" that he was “wery
foolish not to leave? the complainant; that Bloom stated to Lewis
that he underetood that he, Lewie, was “going to join the Cohen and
Abrams organization and congratulated him upon his plen;* that
Abrams “was determined to cet” Wits “sere against Lewis,” ond “would
Ret stop at anything;" that Abrams “had no reason* up to the date of
July, 1926, “to take any of” complainant's “help,” but that “the
Minute the season commenced and the market conditions warranted,
Por he
as! dawns od sil Baw dtieli ill “gate fae
avon ae tastt thepradests ov hiwow wiver dens phe ati Oe
_ ane oat "98 mmol tre te 2 ‘ba omit add vo the satovah te ato
ake 39 toned ext ‘dnote kame wowky faut hou 'S'walel
"eatacignth & binow™ tants toe09 out “anoht Ans soot tatuonadoes ates
ag?" ihenie & ae qotoat ‘etwed *putinay eau" anerdA ‘va Bpiend
—pattgnnte ee ves ‘) no: tontanyro ul at “es tao ‘Cuan ae ot
shed tort, bas tigate Feros ade ‘te ‘rexuolvto ot? ed beditelt rn
Pam, oa org Setncege gees texte ‘aot adonumyuartie 6 oe Eg ina otto “hb _
Ye. eee er". B yee teeta » Pawel fom08 oat “ae nee : ‘m 4 ! bi
‘ei ye
ost a teed x0 vapdaed oun of ‘Maser n ‘tat
CL RMS cg
WR rE
Fae , ton, =r eas teas torent Co ri is stem
a: ht Léaxtioe . a adn “matte ‘bien was 2 “eh
ome etmek soe wee wut * adit ) strate:
sant at taante iqmoe ect V9 "axel Lod monte tind ono daaok da bike
sg), baa aa sswadA sto "eosutsl 9 ‘etalocena* biwer sorely
ia i hd
oy we Hg Peat ghimeea dat Ka Rerain: PRLS Fait dhs
ae. 0 ta ‘*yMognta 29 yeaa « orton aomn eter
CERAM Ae Any Here be "
: abvedt 98 bode 29 toe Li taut _1onam be lenne eas eens | 9
seamen vai #f, — for] sili cum gee oH dee si ons a8 i ° e « i
a eee, a eer faa oH he ane,
milod hepa i a ir petaeone rt
praia ante ae URE sae 2
he would take as many employees as he desired’ from the comphain-
emt; that Abraws, Cohen and the Teasnenons “were planning on building
MP an organization of considerable prepertione end using ae many of*
the complainant's “*esployees for that purpese an they might find
conveniont;" that one of the efficers of the complainant was not
friendly with a cartain employee of the complainant ond wae using
the employees ag an “easy mark;* that certain moneys te the amount
of $2800 that the employee had invested with the complainant
“were not safe" and that the empleyee “had better ask fer the re-
turn” of the money femediately; that the complainant would go inte
bankruptey; that the employee “had better quit” tne employ of the
complainant; that Abrane i614 Wite that the complainant's em-
Ployecs “were not faitinful to nim,” Wits; that Rens “wae deliber-
ately holding back production for the purpose of injuring" the com-
Plainant’s business, and thet other employees vere not preceeding
as they should in the course ef their employment; that Abrams and
Cohen told Wits that Lewin snd Hoss "suggested to said Abrame that
they enter into business;" that Lewis had “double ecroesed® Abrame;
that Lewis was wifaithful te the complainant and that the complain-
ant “ought to @iseharge him forthwith;" thet Lewie had been working
wpon a certain 4eal on which a tale of merchandise smounting te
about $100,006 was in prompect and that when the organization with
Abrams was propesed by Lewis, he, Lewis, cancelled the deal so that
the complainant “would not get the benefit ef it;" that J, mM. Genlif
kin, an employee of the complainant, “was offered various inducement
to join the organization of Cohen and Abraus “in the capacity of
& sales manager;” that Uohen told Schlifkin “it was hie intention
ond the intention of Abrane to induce many people employed” by
the compiainant te leave the complainant's employ; thet Schlifkin
and Abranas hed a “conversation lasting over four hours, in which
-mialiqacs eit mort “oweteeh eat aw woeyetque’ ‘yee Bar awe '
gthiiod a yalenntg otew* atetenes? et bas tested 5 meee tas” gina!
| “te yom ee goled bee stutitedexe eidoupbianas Yo wobtentang16” .
| Anat digke yous ae seoaney Jed? vol soegolqam*. otemmaie Lqmee' ei
| fea aan Jomsio Leino odd te wapetTie odd To.e0to: band: gone) ave oe
| gabe saw hee towaly lames ect te sayedion adedeeo a nitiw ethas ; vi
tas aie ‘ef at arena HIRED fads ° paieee yaee ate ne weave ann add |
‘i SHantnlewon wo? Kee BatnovAL bea once lavin esd tartd gone br!
sos ont a0 far dotted Bed” eayataee, emit, tmutd. teem “otom tom oxewh
ajuk om biwew tnonteiqnos gst fade py sete thoommh eon exit ee Mente
od? Yo veda ont “tiny xegted ba” soyetams. odd tatid: retevetind
ms “a! deat Lao ate Saas, Behe bles nana tyald. gdm
eeshioh way" aged toms enue “mh of detent, doa coo aebeee
“non att “gaiwwtak te ewoguice old 9) apt iouberg Sead. ambs anistomysegan”
yathovvore ton o20w ERE oLemy rasid 0. tats im, scoonlnud at saunta te” |
fate asa tt tant * ;datonmgo Lemme Shot te amego ons aplasia —*
ante feo ant pais, ota hives oat, " 4 hac all or sini
pabixor aed bot a kwet tngld * ait dimtits 9 mist mgmenign ths of sigue ta a
4 Gri , A
ot anitea ome eu thowstorpm to sine sede so Leet nino a 16. f
ashe nottents ene ot Lone: toe, Me, toegnete nea ote, Salt oe .
ae a aR a aa
i "tenon ada :
Fe a bakes Seerdsn | ve P
te ‘Piosaee wast ak” gnats
Paes FP Se oy. '
er ie ond aw on Bs ae
ee *bewo.Lam edqong we
niset tciod taste teat ryotqne ‘et uated
ih Ae Beh pai np ‘ i i Bid,
‘inhi un! een eet xev wit ont ne
Listy anaes ale te iE SON MRS Da ity iT
Abrams made many slandexvous resarke about the complainant and the
complainant's organization, and ‘endeavored to induce” Schlifkin
to leave the empley of the complainant and Join the organization
of Abrams; that Bloom ‘endeavored to induce" Reed to Leave the
employ of the complainant and to jein the erganisation of Abramn
and Cohen, ;
The bill states that the allegations in referena te
these “acte, statements and conversations,” exeept the converma-
tions of Abrass with its and Abrame and Cohen with Tite, ere made
on information and belief and are stated to be true,
The G11) alleges on information and belief that the
defendants Abraus, Gehen, Blieom, and Louie and Ben Isanenon have
from time to time “endeavored to induce" other employees ef the
complainant te leave the employ ef the complainont, and“in that
connection have used slanderous, mealicleus, false and wnfair means."
The bill further aliggee that in waking the statements
and doing the acts complained ef, the defendants were not acting
within the scope of legitimate trade competition, but were actuated
Solely with the (ntent of injuring the business ef the complainant,
in respect of the defendants Benjamin Lerman and the
Metalerafts Gorvseration, the bill allegee as fellows:
*That one Benjamin Lerman has been doing business as Glace
Lamp & Shade Co. and that in December, 1925, he beeame presle
dent of the Lervan and Marke Lasy Corporation, and that abeut
Way, 1926, an application for incorporation was filed with the
Secretary of Gtate by said defendants, or some of them, fer a
charter for the company by the name of 'Metalerafts Corporation,*
in which said Lerman is designated am President, the said Abrame
as Vice-President, and tie said Cehen as Seeretary and Treasurer,
whieh business is that of the defendants, or some of them, and
that said Lerman has jikewise, with the other defendants, been
actively associated us one of the conspirators for the purpose
of committing the wrongs hereinbefore aet forth, *
The bili further allegee that the defendants have not
_ «- @@ased their improper an4 unlavful conduct but that they are con-
% tinuing to pursue a course of conduct similar to that hereinbefore
*
hae
7
‘
a
wIStilelet *ecrbak ef borevashes*® bow tobtantsoene “ J mt e
odt eves of boot “eouha? a2 Berovaehaa” stot dant ip :
"eee, Ww repamacagen tn weld Wtet of hae Haunt Sew
lent 4 NEAR ORRIN BG i 2 Me ae Re ey i il
i “¢# eoneneton at nei daigiittet ‘ets tH netads Mid ws «ve tiv eh
ii meeterass pits foomte *,eneltensdvace fen etsemmdate vata ent
than oxo ,aSEY MO80 aadOd hee weer tne RORY Ad DO noertthte: +
| oii ‘etd 6d of Hofats ots bas “toklod baw —
\: gett MAF ek ted Bat ‘ad ttemtotad ae ‘aoge lis Litd edt eeulegoration
ea foweadet mat han shied bad’ .wooke’ nt yarn cess
9 re neegotgan ide *Ueunwk: ‘oo hotovAsHaO* ants ot embtn
at n tte a Sie’) asap ‘wits €e ad sat ovael od 4
Ry
wit “pat patted wi Patt wogeste teatro Lene ware’ cots om
yitkten Yon aabw erin iam teh ORE te Den! etebied! atbn ont heltone be ¥
Dine osnghenadiongl nesmiaeencdlimasenslontnr name ibestneuis?s:: ile te
ne) Saree Sania: sadhinatettataenied fe: |
ee Wr oie LRA weit aeeslloedca
“aga i nati sate ‘id ait sinew wt sesh aoa saul
3 : on ager em ah tat ~o0
“g Ldiaed pies wise bt ena a
tase phates
peg tw pee
Mae
¥
set forth.
The bi11 further alleges as foliews:
"That the sald William Abrams, Jack ¥, Cohen, Louis Imaace
son, ben Isaacson and Kebert Bloom and sald Metaloraftes Corpern=
tion are not of great financial means and that a judgment againet
them for the large sume of money which would be justified if the
comduct of which your orater heretofore complained, 1s continued
unrestrained by the order of thie court, and by reason thereof
the wnlewful, malicious and wilful purpose of said defendants
is carried out, to the extent that your orater's damages would
os to s large swn of money, Would not be eclleotible against
BG»
The bill further alleges that the complainant is sul'-
fering and will suffer irreparable damage and injury em account of
the acts complained of,
The only aueetion to be determined is whether the bill
states a cause of action in equity.
The subjects to which the bili relates are (1) con-
spiracy, (2) slander, and (3) attempting to entice employees to
leave their employment, It is obvisue that none of thease subjcets
Comes within the speoial province of @ court of equity. In other
words, equity has. no exclusive jurisdiction of the subjects te
which the bill relates, The only posaible ground on which equity
Jurisdiction could be maintained would be that the remedy at Law is
inadequate. Te asewne jurisdiction on that ground, it is manifest
that the bill must allege facts which show # cause of action at Law.
158 Ho. 272, 2%.
After alleging a cause of action at law, the bill further must
state facts and cirewnstances which, aseording ‘oe the well ecetablished
Tules of equity, would Justify the interposition of a court of equity
on the cround that the remety at law is inadequate, % Corpus Juris,
sect ton M4, PR. 39, 40.
The giet of the bill ie that the defendants entered inte
&® conspiracy to injure an’? to ruin the business of the complainant
by making false and slanderous statements in regard to the complain-
a
=
ae
ob te POPP Par
aberrant
h Sk
pen algod. , wail, Y doa gon
“BOLT Bilaty Lado hlaw baa ome bate
eae St bettie feveabert,.« tote bem astern. . te ta.
peti iveut 6d Sinow so bshe is % gion te
cy genie Scot olnwes Toate saoy te
‘Loe tan genes yd baw ,dty0e OY te tahte walt 5
Be ngontans Ag ik erautee ies <2 ogee Bae
e'eeteceo tw Bas ssatee OA? oF yh
Pi nae nn oe dow o eeRourt Tha. syn. gtk
: PRD SB. tig: atime
tee at tsi gene aid Yasia eegad ke nosis cad ont ae
ee it Si Lt & abe
t0 dewoags ite, etubal hots onan Wrcomeeorat Thue pe Poca
ie out rests ut bantemser ed ot nottevd ant
ot hope re ra sess
er Perak aaa laa sagt! oS
~n00 (1) ove + wonton rend ost? pete ot _Mtootten ont Y bia
mn ot eeoyotaae sod tute of uateame tts ) baw raha ta His
vy “adele sands ve snon batt ayotrde od v amy Lem *
“aad al “elie hc tawoo rs te goatvong fatoaga ont atid iw
“ae adowtdes sie %e “noideibs but evinwtoxe on ead i
wise fa kein ay bawworey ots neon vitae oat venteler Lhd ef ei
ey ‘oan ante :
ab ead ‘o ‘eho ae veds ot plage bontatatae oe b
ot) eRe ws i
rns nae ed th nena aa 7 _nodde tbatwt mass or
cae ae Pom RR ies Hea
| | entation dive ont 6° 9
& 1 eR
where 26 taoa 4 te aolsteeeratad ant x
Na) FORER ws yea eee haar pany “9 aed Mh ROA
RP ia. AE
Cue @ Rigg wns Aste ip fy, ai
ia 4 "
Pa is irk pe rag tan ik fh
——- EF
jg
i
and its officera and exployees in order to entice the employees te
leave the euploy of the complainant.
The rule ia well eetiled that oat commen law in a civil
action ef coneriracy, the aonepiracy of itself does mot constitute a
cause of action; that unless the conepiratoers semmit wrongiul acte
which result in damage, no civil action will lie; that the gist of
the eause of action is the tamage and mot the consviracy. Doremus
@, Hennesey, 176 TLL, 609, G14; Lasher v. LittelL, 202 Tl. 882,
$84; Dy anberg, 144 11), App. 103, 107; & 8
935 Til. Apo. 44, 48. The wrongtal acts which were committed by
f
> Ba
=
the 4efendants pursuant te the conspiracy, aceording to the cone
tention of counsel for the complainant, were slander and attempting
te entice the employees of the comp .ainant te leave the complainant.
Counsel for the complainant reaognize the rule that a court of equity
Will net grant relief for the commiesion of a slander; (Midkand Frege
Ns F. 3%. Compton Go., 204 Tl), App. 216, 217; 21 Gorpus Juris, see
tion 36, p. %); and they do net rely on the slanderous statements
as an independent, substantive greund fer relief, They merely maine
tein that the slanderous statements may be considered as one of the
means by which the defendants attempted ta entice the employees of
Complainant te leave the ¢omplainant's employ. The only cause of
action at Law on which counesl for the complainant rely, and for
whieh they contend that the remedy at law is so inadequate as to
Justify the intervesition of « court of equity, is the attempt of
the defendants to entice the employees of the complainant te leave
Complainant's employ,’
Ye doubt extremely whether on attempt to entice em-
ployese from their employment constitutes = cause of setion at law,
But without deciding that question, and asewuing for the sake of
aFgument that an attempt to entice employees from their employment
constitutes a cause of action at law, we are of the opinion tha}
ot epeyolque ond solinn of tehte of eooyotame baw anne 38 wah
Semake Lame ast ‘te. xttqnm - :
ftvto « a3 sak momo to, teat beleive Lge #2 an. Fon Heal
: olin » we o¢ yMPiYoReR .yoetiqanas ‘et? a¢ rian :
gabtquedia has atreta wee jdond le fomen wet ‘tot Tentiirge
stonalsiques ot? omwot od Immads. gibi wae Le eomyo tenn” wm” OA
<i2upe te Mwoo » dai? owe oad ORdomooNT Pantin tyme HF OT Lor
genet pieipte) yeohne te » be eis bik dias oad 4Oe THe dite ‘ F ct os
ch eernetas a ae ae om: aatiacoal hb ak
wokass yle neat — ste dfet <6 hago wvbiiitted, | iat
psf Re ome en honed henivo od (am ateran tate evviindiite’ ‘sae + 7 hiked
te norecan ad Hioxtie ot foment ‘wont ree a ut
Aa a eh. th. pnd AE ling .
To dame te ome ot (ete Yo Mies te mere are
tie. of ammmtetgame AGF te mene er eee ‘ot ahadbna tee we
whinipe: "te Mana he wolata RATA! pier AON, Naga tamitte Lemoe
y
e.:
the bil. of cowpinaint does not state a esuse of action in equity.
The only theory on which cewn#el for the complainant maintain that
the bill states a cause of action in equity is that the allegations
ef the bill elearly ghew that the remedy at law tea net adequate.
If the allagations of the bii1 oo show, then the contention ef
eoumeel for the complainant ie correct. We think that for the
completed wrongful acts it ia elear that the remedy at law, if any,
Would be adequate. The general rule le thie respect is that in
Gasee of completed torts, damages at lew usually conetitute ada}
quate redress. %1 Corpus Juris, section 36, p. 66. It te alee
the general rule that imfunetive relief ia preventive and is net
granted to correct wrenge already porpetrated. Menard v. Hood,
68 Ih]. 171, 122; Mead v. Cleland, 62 111. App. 294, 300; Come
of Hi chway Debce, 42 111. Apo., 85, 30; Widlond
Proes v. 7. 5. Compton & o., 204 Til, App. 216, 217, (supra).
The question whether the cemplainant will suffer irreparable
famage if the fefendante sre not rastrainad Trem pureuing in the
Tuture « course of conduct elmilar te that pursued in the paet,
is the precise question tn determines. In considering thie question
it must be berne in mind that the injunction should not fesue
merely to allay the fears and ancreneneions of the complainant,
whieh may saist without any substantial foundation, 32 corpus
Juris, section 22, p. 423; | .Ge., 268 Tai,
299 Ill., 324, 365, 366. There cust be at leaet a probobility
of injury tefore an injunction should be granted, 32 Corpus Jurie,
section 22, p. 42, in the case of Yule
Glair, 315 Tl. 46, the court aid (p. 44): “In order to entitle
one to relief by injunction against wilewful interference with his
Dusinesr, positive and substantial injury must be shown, *
In the ease of Vanner v. Chicago City Ry. Co., supra,
ietinge a2 aotten te seven a
wee welt toute antia 9%. detctinincated eh Sanat
ha eh te (oe wat sokeuss oat oe }
ee) oe en eee
wagaaa): ene otra tab wed ,
‘> awakens: et tp sno2acnsienane baw eran peng
i, ederted 86), <tneibtintonwert pompedinintads suasts te xe
ee ae as «at E18 0 BR 73
; inigudvacneie wrtanet te od dayne sxoatt nO 7
| abet sacnlgfe shetamxy od biwesin ava |
10
the court said (p. 550); “Zhe act to bs enjoined must be expected
with reasonable gertuinty if set mijoined.”
in the case of Gglesby Coal & fe wasen, 7 Thi.,
164, the court said (p. 17%) that even if the cemplainait had ia
the past euffered injury, “it sheuld appear te justily a court of
equity in interfering by way of Injunction, that the continusnee
of the injury is threatened and ite danger teminent.*
In the case of Rernard v, Commtiauionore of lilghways,
172 Tll. 391, the court said (pn. 394): "There sre caseu rhere a
person threatened with an injury of the kind alleged here will net
be required to wait, if he cen demonstrate that the injury te
reasonably certain te folle*, but if that question te lett in deubt
and wneertainty the court shewlA not interlerd.”
Aseuming, at we lave done for tae sake of argument,
that the bil. of complaint ateates o eaunse oY setion at law, in
Feapect of attempting te eaties the eotplainant'a emaleyees te
leave the expley of the complainant, we are ¢f the epinion thet
the bili does set show that the cempisinant Bas net an adequate
remedy at law. We do not think that from the sliegations in tne
bill we may conclude #ith reasonable certainty that the defendante
Will damage irreparably the business of the complainent If the ine
Junction showld not be granted. The bill wae filed Oetober 1, 1996.
According te the allerations of the bill the leat wrongfol act of
the defendants specifically referre? te scosurred on September 17,
1926, Tn our opinion the allegations of the bil) fo not establish
the fnet that the complainant has suffered any positive aubotantial
injury. The bill does not allege a single inetance in which the
4eTendante sueceeied actually in enticing any of the employees to
leave the employ of the complainont, Ani the matter ef the at-
tempted enticenent, according to counsel for the complainant, is
the eesence of the bill, From the allegations ef the bill it is
acne et sum benke has od at jon. ow «(one 4) ‘ ER
bis natotme Fou ae Wistaro0
ee ee ‘ cy
vee aren Pepe RS
at ne Sitaesones « bial te seve tnt eee +a) aie Fee
/ one
ENE a2
son Lite ones hege £40 ‘ake ont Le wut as dt te seiibane
ae dap iE Sn cae
is egy all ict ‘stirte iin 88 ot 7) thaw haw of
ne - sae e
fhe ood alt ~ oe wl tial
oat of Bite ctaoe id 88 salen
ene a aps ae Py ae os a 4 :
tet ba
>
12
apparent that the efforts of the delendants in reapeet of entice.
went amounted only to wisuccesttul attempts, Judging from the
past acte of the defendants it muet be premumed fairly sad reason
ably that in the future the defendants wilhi be a8 unsucteceful in
their attempte te entice the euployess ef the complainant to Leave
the complainant's employ as they have been in the past, The affi-
cere and employees of the conplainant seem to be loyal to the
complainant and envilling te join the organinetion of the 4efand-
ants. Ae we view the past acts of the defeniants, they were
principally of such o nature az to cause personal annoyance to
the officere an’ employees of the sonplainant rather than to cause
any substantial injury to the property righte of the sompl sinent.
In sueh case the general rule is that equity erdinariiy will not
interfere, 32 Gorswea Juris, soation 430, p. 272; |
212 Ih1, App. 75, 75. Gur conclusion is thet the domplainant can
get complete relief for the past wrongful acts cowplained ef and
ample protection againet their reeurrenge in the future by suite at
law for conspiracy, slander and enticing empleyece te leave their
employment, asewing for the sake of argument that the allegations
ef the bill state such causes of action at Lew,
Im our view the aliegatione of the bili in regard te
the ineslvency of the defendants are not sufficiently definite and
@ertain te renter our Genclusion fim reepeet of the adequacy of the
Tenedy at lew unwarrantable.
We are of the opinion that tha injunction should not
have been granted, Im reaching thia conelusion we are not unmindful
or the rule that the issuance of an interlocutory injunction rests
in the sound diseretion of the chancellor. High om Injunctions,
“Vel. 2, section 1696, pp. 1645-46, (4th od.)
Fei \
In diseussing the sufficiency of the bill of complaint
jo far we have considered the allegations ef the bill in respect
‘ieiahala siento cegton ‘sett Yo aogwatons out entse
<erte wat dane ‘eit eh ciwed ame woe. a ote a
eit oF ‘ang: adod paew Banas mat at emote | ,
‘vena 'ad auld To aoLtond amass alt abel ot eeecbidh dneatehqmoo
ee ee ee ee woly. 96 oA, .6the
at soneyonae Leiomtes ganee of an exude.» dou te yhtagbontey
onsen of sett Teter tpatolenso og Ie eeegetgme haw eee te 0 98 ;
ime LeeG ett eatin de eRmeTS, ght 08 peeked soteg $n: : a
adpseadbvataat uns udtipe fast ot Len ii ogy:
: er SR ve Che mottos ,otiwh emeeD RE .euetandad
Hao PHM LAOd ost FoR a2 aodentases mw , BT, eT we el
a
die “Ye hoaie iqiew Bee Sutganre dang edt got Wehtar fe Lemep, 20%
te whine QF ovutut Bett al eoneraaT aed? deakepa. modt on tone, 9, i
vito liegelin eae dase vasa Ae wa aia ‘ie iin | ee te
ROLE ETE NSE SE NR mutton, dial une ave nao peak ds aon
oe: pant oodattas satlibiidantebiall atm ba
ath te abana ant Te teegeet al ate
a fu ee boned ha aie at 9
co RB ced atoms per te msc |
e. MeSurely, *. 7., and Eatavett, J., conewr.
ef all the defendante jointly. We think, however, that the alle}
getions in regard to the defendante Renfemin Lorman, doing busi-
ness as the Glace Laep & Shade Company, and the Metalerafts Uvor-
poration are so utterly vague and inconclusive that an independent
question is presented as to them; that irrespective of the quertion
whether the injunction showld have teen iseued agsinet the other
defendants, in me event should it have been iseued againet Lerman
and the Ketalerafte Corporation,
Yer the reasens steted the deeree of the Chanceller
ie reversed.
REVERSED,
Seen
NTT? CNY Cocmeety o mN fs
Tae Rh Pre AM
ai ica
aid br
13 = 30898
HORTENCE ROSENBLATT, by
SARAH ROSENBLATT, her mother
and next friend,
)
Plaintiffs in Error,
ERROR TO
SUPERIOR COURT,
COOK COUNTY,
Va
ISADORE GLABMAN and MORRIS
GLABMAN, doing business under
the name of GLABMAN BROTHERS,
a gail
3U
Opinion filed March 2, 1927,
MR, PRESIDING JUSTICE TAYLOR delivered the opinion
Defendants in Errors
of the court.
This is a suit for damages for personal injuries
alleged to have been caused by the negligent driving of a
motor truck belonging to the defendants, About 5 PeM., June
19, 1918, Hortence Rosenblatt, a child nine years of age -
who sues here through her mother, and who for convenience
will be called the plaintiff - was playing a game called
“German Spy” with some other children in the backyard of a
house where she, the plaintiff, lived; and inthe course of the
play, taking the part of the spy, she ran out into an alley —-
which ran east and west past the back of the lot on which
they were playing, and, almost immediately, was struck by, or
in some way fell against, the defendant's truck, which was
being driven west in the alley, and was seriously injured,
the tissues on the back of the left leg from just below the
buttocks to near the junction of the upper and middle thirds
of the leg being extensively torn away.
|
imme ease has been tried three times, What was done
if
sesos ~ EL
rae RRR mals Sie
wraaaaoos gourtnow’ 0°
sala asd <TrAL@Uaaor HARA sie
<towed al @Ttivaisft |
OF SOARS ‘ 7 Be, Die a ee
.TAUOD ROLE ont owl ad make onaeelaloden
.YTHUCO 1000
@IRsOM ae WAM@AGO @Rogaet ~*~
rates one anentaud od saaweD
080 6 AT i pnlqnereee ct etasbaetet
»TSOL .S dota boilt aciaigd
motatqo edt betevifeb NOJYAT TOITSUL OULGLaIAt . AM
»ttyoo edt to
eeirytat Isnoersq tot eezsmsb tot tius « at elidt
a # to gaivixbh tasgiigen edt yd beevso meed svad of begelis
| cal eMod @ tuodd sttaebasted edt of yatgmoled doutt toto
~ 9g8 to etasy emia biito s ,tteldaeeof somettoH .B10L CL
soneingvaeo tot ofw bas .redtem tad dgvotds oted seve odw
beliso smag & gaiysiq asw ~ Yiitatalq eit befiso ed [fiw
8 to breytosd edt mi mexbiide wadte emos atin “yq@ memrep"
edi to setw0o edtat bas ybevil ,Iitaialq edt .eda exedw sevod
~- yells ne otat tuo ast ede .yga edt to t1sq odd gnidet wealq id
doidw no tof edt to dtoed odd tasq taew bae tee sen dotdw
TO .YO doutse cow .Yistsibemmi teomis .bas ygaiysiq erew yedt —
Bes saw dotdw .xourt a'taabacteh ed? qteniegs [fet yew emoe at
beottat ylevotres eew bas ,yolie edt at taew novith gated
odt woled taut mort gel titel edt to dosed edt mo eovestd edt
ebtint eibbim bas xeqqu ett to aoksoaut sit teen of atoottud
-Yews atot (levienstxe gated aa edt to
— emeb asm tadw wasnt contd beixt anod eat tess eft) Se
ae " Maat" WA oe BAP 8
es . . Ae
ar Li es a SS ate ea a
weds
in the first two is not disclosed. At the last trial,
the one here for review, there was a verdict and judg~
ment for the defendant.
For reversal, the principal contention for the
plaintiff is that the verdict was clearly against the weight
of the evidence, However, after careful consideration of
all the evidence, we are impelled to the opnclusion that we
are not justified in overriding the verdict. It is true
that there is testimony as to a somewhat excessive speed in
the driving of the truck, especially considering that the
alley was rough and uneven and only 15 feet wide ~ the
truck itself being 7 feet wide - and that the plaintiff,
@ child of tender years, ran backwards and forwards in a
zigzag way in front of the truck trying to save herself;
stibl there is testimony for the defendants that no child
ran across the alley in front of the truck; that the truck
did not zigzag; that the truck was only going four or five
miles an hour; that the first intimation they had that
anything unusual had taken place was when they heard a knock
against one of the wheels, and that they stopped the truck
at once, Whose testimony should be Relieved? In such a
case of conflict, to whom credit shall be given is a matter
peculiarly apt for the jury; and they found for the
defendants, Counsel for the plaintiff has endeavored to show
certain discrepancies and inconsistencies in the evidence
that suggest that the plaintiff was strhek, by the truck,
at a point in the alley some distance west of where she «
ran out, and that strong evidence of that fact is that her
‘pody was found lying along side of the front wheel of the
truck, But such facts and others were in controversy, and the
subject of conflicting testimony. As to where the plain-
~G=
isitt test edt A .bseofoeth tom ei owt tarlt edt ak
<gbut bas toibrev s aew oxedt ~wolvet jxot sted emo edt
stasbereteb' Sec: iid
eyie bee
ait 20% aoidast noo iagioaixg oat inerove: tet
tdgiew act tentags ylrseio 5" tolbxev ad tadt at thitatelg
to moiversbiecco fcteras te¢ta .revewoH ,eoasbive edt to.
ow ted? motetionas odd of befioqmi ots ow .somshive edt tis
eutt ei sI1 .totbrev sat galbirsove mi beititent tom one
ai beéqe evicssoxe tedwomoe 6 ot 88 ysomitasd ef eredt tad?
ede tact gairobiance yifetoeqes per edt to galivich edt
‘edt -~sbiw test 3f ylno bas asveny bas dguot asw yelis
wthigmist sit tect tae - sbbw tect ° gated tlestt douxt
@ wt ebtserct bas ebtseioot asx .axeey tobadd 40 able 2
__ etieated evee of gaiyid aowrd edt to taort ai.ysw geugia
biiso on tadt efaabmetsh edt rot yaomtzaot at oxedt Sdtte
touxt edt tedt jtontt est to taortt ai yells edt ssotos,set
evi to tuot geiog Yime asw dowrs edt tadd jasagis, toa ae
_ tet bed yodt sottemtiat tertt ot tadt jrved as, softs
Abend 6 brsed yd? node easy 9oSlq soxst bad Laveumm ggtddyne
dou? edt beqgots yedt tect bas ,efoedw edt to ene tanisge
& dove ol Theveliéd od bivede yaomttest evodt,..eom,.2e
. Seaan 4 Ot wovts of tiade tthe. sede ot tos see 20 Oe
_., Sat sot bavot yodt bus jyytut ode rot tan vinetiuneg
rota of bozevsehas ead 2litaislg edt rot feequcd. .etagbasteh —
7 ls edt ct ssinastatencont bus aetonaqetoeth atetreo
plostt edt yd dodtte saw Titimtelg ods tedt teogaue tas
. Apsiebig inghatigadl ome yolie edt ot tate ste
4 fads at tos? ton? to conshive goorte tat pan ytuo, aes,
| “Mh 30 Saode duos out, 30 abe gnoia gakxt bawt sem, ybod,
a - hat <Xerevorsaco at stow etadte bas atest dows tua ptount
~3—
tiff was when struck, the defendant Isadore Glabman and
his associates both testified that she was found lying
along side of the rear wheel, There were several conflicts
of fact, and the jury evidently did not credit the story of
the plaintiff and her witnesses,
There is still such an oteurrence as a pure
accident, where no participant is legally Liable in tort,
The’ jury may have concluded that this was such a case, or
it may have concluded that the defendants were not guilty
of any negligence, or that the plaintiff was guilty of
contributory negligence, Whatever the source of their
final judgment, however, we do not feel warranted in holding
contrary to their verdict.
It is contended for the plaintiff that error was
committed in giving for the plaintiff instruction numbered
13. That instruction is as follows;
"The court instructs you that one of the defenses
relied upon by the defendants in this casd is that
of contributory negligence on the part of the plain-
tiff, Hortense Rosenblatt,
'Oontributory negligence’ as applied to this case
means a failure on the part of Hortense Rosenblatt
to exercise such care for her own safety as a child
of her age, intelligence, capacity, discretion and
experience would have exercised under the same cir=-
cumstances, which failure proximately contributed
to bring about the injury complained of,
tProximately' as used in these instructions means so
Closely connected with the injury, that, Bot for the
contributory negkigence, the injury would not have
happened,
Unless Hortense Rosenblatt has proved by a preponder~
ance or greater weight of the evidence that she was
not guilty of contributory negligence as herein de-
fined, then you must find the defendants not guilty."
A quite similar instruction was given in Johnson v.
Gustafson, 233 Ill. App, 216, and it was held to be good,
The argument that although the plaintiff was required to
“i
bae nendaip erobesI taabaeteb oft <dowtte more eaw thir
gaiyl bavot asw ode tadt boititest ated eetetoonss aid
atoiftaos fetevee stow stedT .loeenw meer odt to sbte gaols
te yrose edt ¢ihexo ton bib yltaehive yl ond bas etost to
.2enecat iw ten _- titataty of edt
Ging @ es Sénetrneso me dowe I[fite ei exsdT > 8 ils
‘ ft0# at ofdsil yffegel ei smaqlotitaq on oredw qtasbt
to jSe80 © deve sew atdt tad? bsbulomwoo evad yas eet or
viting toa oTsw sinéiasted sit tadt babstidnoo avad yam OE
6 With saw Wiss tate one tade wo yooneg tien —as Yo
\ gbedd Yo eotvos sit vovefed® joonegifcen yrofedixeaee
gatbior ni bednerraw [set tow ob ew prevewod (trompbnl Lamtt
+t0lbrev tisds of Yratdads
‘ i . epee neen
ee esw torre tsdt eitvatess out rot ‘bebe? aoo a ¥ & pals
beredsuin aolsouttant Tridaieiq ode zo? gaivis mi po Sieg
ames S, wear bah
“a . same {fork 28 at oitourtant ted? Sf
bie AO, Aba. ak dea
aseasteb oft te ano tadt wey etourtemt sau bol at at ype
rey? ei Beso aidt of atashasted oo, yw fiat
-miksia¢ edt to tteq edt mo pees rp rye hy ae
yp aaa eanettoH ,tt
Pog @idt Of Bolfeqa eb shoyu ayeatenatabna sol aha
esnetroH to tree edt mo otutist & ensem
bas moiteroeld .ytiosgso .sonegififetal # ted te
“rio sust od} tebay beelotsxs ovad bivow
_ betudtttmes qLetanixorg exits? te tae ‘ante
“Yuutet eft suode gaitd of >50
ivoustaat sesdt al beaw as 'yietseaixzord!
ois" ‘fot tot dads ok edd dtiw ‘hesheany: se ya orn el
evad ton biuow. yutal. ‘od? .someg Ligon Te eagaed :
' Amat
“ar ar aa Sam sar pad a ae
aE tata tataee 20 yest Foe
0, 96.98, Blak mew 28 be one
<O1gGhad Sea VeORee 406 Sel Sakvonnardonn dnksbemn oe aa,
eG Ae Le PS ee Oe eee a Tee SO oa
Mee areal Sys «ee pies
sre et LAS a a ake seh
:
4
prove affirmatively that, at the time in question,she was in
the exercise of ordinary care for her own safety, she was
not bound to prove that she was not guilty of contributory
negligence, is mot sound; and the reagon is that proof of
the exercise of ordinary care is the equivelent of proof
that she was not guilty of contributory negligence,
Objection is made to defendants instruction
numbered nine; that the werds, "from the evidence," which
were used in the first sentence of the instruction, should
have been repeated in the second sentence, Reading the
instruction as a whole, it is quite obvious it has refer=
ence to a belief based on the evidence. Coulter Ve 1, G
Re Re Gos, 264 Ill, 414, 425.
Finding no substantial error in the proceedings
at the last trial, we are bound, even though’ the plaintiff
has suffered an unfortunate and irremediable injury, to
affirm the judgment. fhe judgment will be affirmed,
AFFIRMED.
O'CONNOR, J. AND THOMSON, J. CONCURs
“ agsebave — mo bead dee
a abt pez “
& omsoxe cua a
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282 — 31102
EDYTHE DICK,
Appellee,
APPEAL FROM
Vo SUPERIOR COURT,
COOK COUNTY.
ALBERT DICK,
Appellant.
Opinion filed March 2, 1927,
Fe ors
MR. PRESIDING JUSTICE TABLOR delivered the
opinion of the court.
This is a suit, in the Superior Court, by the
plaintiff, Edythe Louise Dick, against her father-in-law,
Albert Dick, defendant, for damages for the alienetign of
her husband's affections, There was & trial before the
court, with a jury, and & verdict and judgment, in favor
of the plaintiff and against the defendant, in the sum of
$5,000.00. This appeal is from thet judgment.
The plaintiff, Edythe Louise Dick, and Willis
Dick were married in Des Moines, Iowa, on September 27,5
1919, Prior to her marriage to Dick, she was married to
George Pe Jackson, from whom she was divorced on September
12, 1917. She was about twenty-one years of age when she
married Jackson, and about twenty-nine years of a ge at the
time of the trial, Willis Dick, also, had been married be=
fore he married the plaintiff. The plaintiff first met
her father-in-law, the defendant, Albert Dick, end his ©
family, at Quincy, Illinois, on her wedding trip. She and
her husband, at that time, spent sevemel weeks with the
defendant and his wife. Shortly afterwards, on OF about
a
MORE EAST
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e¥THUOS AOCSe
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out~at—redéat ted tesiass (oie eebved dra e
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ot Beinsan ecw ede ia ot egsinztse red of SO ae
tedsetae® ao beo revi acw sie pode mort emoadont 4 eg10sD
ode aady ons to atasy saowytasmt tds aew sie tser a
ede te @y 2 te REROY entawyt nowt tweds due <toetost beitiea
~od botvzem ased bad oats tol ef itty eisiz? ot to omit
tom text? wtatela oft Ten babeen od ord.
edt détw exeoe pes meet oe oa
wBeo
March 80, 1920, the plaintiff and her husband took over
and conducted a candy store in Chicago, The defendant, at the
solicitation of the plaintiff and her husband, signed two
promissory notes, aggregating $11,500.00, which notes were
also signed by the plaintiff and her husband, in order to
purchase the candy store, In the end the notes were paid by
the defendant. The plaintiff worked in the store off and
on for a year or more, until some time in 1922, During
1923 and 1924 her husband took charge of the store. In
1983, the plaintiff made a trip to Bismarck,and was gone
some time, When she came back she again lived with her
husband, at the Willrae Hotel, Ghicagoe Oy, January 23,
1924, she filed a bill of complaint for divorce in the
Superior Gourt, on the srovnd of cruelty. The acts of
cruelty were alleged to have taken place on December 15,
1928, February 13, 1923, August 1, 1923, and January 5,
1924, The instant case was begun on January 26, 1924,
On June 21, 1924, she gave birth to a child, During the
latter part of January 1924 and from then to January 16,
1925, she and her husband lived together, On February 1, 1925,
the bill for divorce just mentioned was dismissed, On Febru»
ary 15, 1925, she filed a second bill for divorce against
her husband, and in April, 1925, obtained a decree of divorce
on the ground of cruelty, The decree recites the acts of
eruelty as having taken place on December 15, 1922, February
13, 1923, August 15 and December 25, 1924.
The declaratioy consists of four counts; they charge,
substantially, that the defendant wrongfully induced her hus-
pan to desert and live apart from her, and as a result,
Zon
evo woot haedecd ted Sea tWisaielq odz 08BL, os =
adt t3 ,gasbastsh eft +9599 .i00 al etote ybeso. 4 Mibeiidlin Sas eet
owt beagts cbasdasst me bas Pitalelq sad to apeneenacn
exew eston te beer 4000008 L58 gaisvegorygs .caton Yroasimon
ot tebzo ak ,hasdeui red bas Ytitaisle ot We pengia cate
WW blag svev setea adit Bae edt of sStota ybaso edt sesso tm
> Bae tie stote et Bi Sedzox Btitcisiq eff .fasbasteb edt
esivei ,862i at omit smoe Livny .otom 10 Teey S TO ae
sl seeete odd te egusd> oct haadeud wed BGR bas BSCL
aucy Gee bae.jotemeif of qiti & shen Thitesalg odt . <BS8s
Bric asiw bevit singe eds toad omna sde sedt salt omoe
ee ‘veauaat, o angen ie f9d08 ont ilie edt te
oat sk sexovid zet $atekaeeo to iti s Belit t a shee :
te sos gt ee ewrt0 to baniong sat 0 Ps >
at Boat “Ee
Bt radius ze soa asiiss evad of beyeLia exew
<a yrsunat bas EARL ai faupuad S86! BE ite rot
geese °F,
*bSSL 88 ‘Xtevash 20 suged age 88D Sastent edt
eat paige bitte & of drtid SF SQ aie S88. IB 92 mit a0
ot Cisne. Ot nod} Bort baw Ager yuagast te greq redtsl .
288i I yrmvrdst 40 ,retiteger bevel suedusd ton See ede geheL
—wrd3t 90 ,bezetnelth es¥ Semettaen feu, sotevih tek Led ent
“Feainges sevevih tet [lid bacbee o belit sae .OSOL Thee
serorif to sstooh # bentetée WSEL .fitaA ct dae phamdend cod
Ye atne out eat tect sexoeb ear yu fewre to bewowy add ao
eave’ Lape = redmevst so eoaly aeiai gaived ea xd Leute
sions ee iat tense: tenged SEAL ce
Pd
ie viscous a eel
cea 2edo we patios x0} te e atatance Logos en
od ott tae fier 7
is
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ronal
alienated and destroyed her husband's affections for her, so
that she was lost and been deprived of her husband's society,
and his assistance in her domestic affairs, The declaration
sets forth that the misconduct constituting the tort charged,
occurred on January 1, 1921, and on divers days subsequent
thereto, prior to the beginning of this suit,
For reversal of the judgment, the chief contention
ef the defendant is that the trial judge erred in ruling
upon certain matters of evidence, In the view we take of the
ease, this contention is well founded, Wo brief has been
filed on behalf of the plaintiff, The brief for the defend=
ent enumerates fifty-two, so-called, points, Inasmuch, how
ever, as the judgment must be reversed and the cause remanded
for a new trial, owing to the errors mentioned, it becomes
unnecessary to set forth the evidence in detail, and we shall
limit this opinion merely to a consideration of some of the
contests which arise concerning the admissibility and re=
jection of evidence,
The evidence introduced on behalf of the plaintiff
to make out her allebad cause of action, before resting,
consists of her testimony, which covers nearly 300 pages in
the record, and certain exhibits, made up chiefly of letters
written by the defendanf to his son, the plaintiff's husband.
On redirect examination, the plaintiff was asked
why she ceased working continuously in the store, and she
answered, "Because my husband * * * said, ‘How, my father
does not want you to work in this store, and you are going
to get out, and you ere going to stay out.'!" In Fox v, Fuchs,
te
eYsetoos s!dandend vent te beviageb aged Sas seoL, ‘est ode sadé
aedters lesb ant verted he elveeseh cod gi sonst sien Feta
bag ado x07 ait gatiaditencn, steubacoets a8? | ade stzet atee
Sass sentir BYSD auevib ne pas A801 oh yrsunah
os .ted sot sanrtost ta a'basdesd sed boyortneb: ‘baa be tam
ethos abd to yataniges ed@ of. teisg and
ecigwesate teddo eff fasesbuy edt Yo Lenteves wt TRE
gailex ai B@iee agoet ‘sive odd fact ot tuapaeTal
arid to-eaad aw-wely ot) HE \enaeb ive te weod¥an ‘abibeds dene
coud gad Réird ‘ek “Ghebaie? Clow of sortestade bie Maas
~—astob sdf 16% teied est .tiéenieatg on Yo tater SAGE
~vod pdoimasel .etntog ,fo{fso-os .ows=ys 12? sevezenims fas
bebassst eeuae eit bac hoorsver of tacm epoca wee rove
-ssocabivs to i atl
5 Sees ead tat :
js Sualats 5 ect te Liadod ae p beosbortat cons ave oat. saedge garnet
weatteor oreted mottos te esnes hogeits sed tuo eten oF:
ak aegeg OOF yizasa exeven dotdw stiemiieet sed Je ee
erettel ‘te tetas ee sham attidiane alatrso oem opm
vtasdad eIERivatalg od? go0e wit ot taabagtes ot yo aettene.
manetieekyenthanlisaniapeonnartetedapen a =@ Co keute
ods bas vorode radial feuov pie yi
~4~
241 Ill. App. 2428, this court, after analyzing the decisions
on the subject, used the following language, "It follows
that the rule of the common law still applies to any ad-
missions or conversations of the other, and that such ade
missions and conversations are not authorized or permitted
by the statute '6xcept in suits or causes between such husband
and wife.'*" Sec. 5, Chap. 51, Cahill's Rev. State, 1925, I+
follows that the testimony above referred to was incompetent
and inadmissible,
The plaintiff was asked, on direct examination,
what, if anything, her husband said to her at or about the
dates of certain letters which had been received by her in
September, 1921, and she answered that her husband said,
"I feel exactly as my father does about this situation.
You are positively no good; I believe exactly what he has
said to me, I want you to get out of the house, i don't
want anything more to de with you," She was further esked on
direct examination, whether she hed any conversation with
her husband about December 7, 1921, indicative of his feelings
toward her, and she answered that her husband said, "I am going
to do as my father said; I am going to be firm with you, andi
am going to be the cock of the walke" Those questions and
eanewers, under the ruling of this court in the Fox case (supra),
were incompetent,
When the plaintiff was asked whether in the first
year of their married life her husband told her anything
about his attitude towards her, she was allowed, over defend-
ant's objection, to answer as follows; “He said 1 was a
very loving wife and considered me all a wife should be, @
=
ed
saciaioe® oct geizylats retis ,stv00 eidt ,&S .qgk .ff1 188
seo ffet 2i* Uaghugaal gxtwolfot off been .sootdue’ ee me
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“whe dowe teri dan aS ro stetectm
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beaded dpa meenfed ecuvac to etive at deste seen
el ,880L .steet ven etilsded , 18 .qem) (2 s088 9 tiw bas
sagtegegeni eax ot Sertster eveds qronizeass eit tadt pence
soitsziagxe foorit mo .beder esw einadener: sapere al
ide vite Bi Fe ek WET tntteed 284 Gant baie
~ ei Ged qe Bevteset weed Hed do ble exedse! ntatiéo to deta
| {bias Siadend gor eadf Berdweae one bas ,18eE | +08
neEtans ie ath ted “ook voitean or ou ‘erteaed 208E*
"Sed ed tate Yitoase svéifed F ;boeg on ‘ylsvitieog ote weY
“pie? <jeaued sae Ye ¥0d 45p 0d soy teal “lel oe Bille
a0 bedbe sterut dee ode ~ *"{goy d¢iw od of 9765 suki toe
“Weiw pholtesrevmes yas bad éae tedtedy jaci¢aaio
agatfeet eid te evitestbat , 1801 .v redmeset jueds bnoahst the
galog me [* iss Susdeud ted é aalt betowaas esa baa ered bases
I bas 688. asiw anit sd i ‘gatos aad I poise, rodtat = as “os “ed
: bas emoiteoup soedt S,tisw ait Yo 4000 oh od of
(sau8) ga60 x0 edt at Pru09 ands to askin ost shay 1m — 5
‘tap e004 sodtede potas car 2i8eniaig ost sem .
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~caeted Tove dowelis e ase oda rod, sa abrewot shutitis aid tues
_# Or T Bian on" sevosiot Sf tree, “L.eoaieride ante.
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loving companion. He said a great many things, I, September,
1921, he was extremely critical and his attitude toward ue
had changed. Ig September, 1921, he took me by the hands
and twisted them and said, ‘you will sign these notes, ¢
He referred to the notes we had signed in taking over the
business, He said my father knows the type of girl you =
are, and I believe him," That was objectionable for the
reasons we have elready stated,
A series of letters written by the defendant to
the plaintiff's husband, which were surreptitiously gotten
by her from her husband's possession, were introduced in
evidence by the plaintiff, and it is contended for the
defendant that, having been obtained without her husband's
consent or knowledge, they were inadmissible, Where evidence
has been obtained by violating the law, as, for example, in-
vading the privacy of a home, without a search warrant, it
has been held that the evidence may be suppressed, Where,
however, as here, the letters were sent to and were in the
possession of her husband, and they were not obtained by
duress, or fraud, other than being taken without his knowl-
edge, we feel bound to hold, particularly as they were offered
in evidenes, not against her husband, but against the defend=
ant, that they were competent for what they were worth.
It is contended for the defendant that at the close
of the plaintiff's evidence, or at the close of all the evi-
dence, the court should have instructed the jury to find for
the defendant, There is a large volume of evidence, and an
examination of it does show some evidence tending to prove
the cause of action alleged, and that being the situation,
under the law, the evidence had to be submitted to the jury.
—<a~
«it Te
etodastqe® li .egaidt qasn gests & Oise oH .mekasquoe galves
ox brewed shusttts elt bae Lsottite ylonet?xe eer et gfSOL
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gif reve gaidad ai bsagie bet ow eeten ott ef berreles ek
@ oy Dtkg to. says Sit awonx isd@et ye diem o> ,seeateud
- gdd-wet efdancitestde cow tes? “etd eveiied. 1 bas. ,ems
batate ybset is, awed, ew enogsexr
ot gusbasied edt yd setdirw stadiel te aaires.A |
satiog Yeuctéisgeciwwe orew do ide badegd eft? g edt
gt beovbortai orsw .nofissessou e'basdaud aotaneth 0A xs
. off 10% bebmetnco al ti bus tiivatalg edd yd eonehsy
ethasdaud ted suoctis ceatarde seed galvad 4tedt 7 ashe lob
sonebivs ered @idiesimbsri oxex yoo? ,eyhefwend t0 2asegon
~ai aiquexe, rot .e6 "sl odt gaitsioie Wi honiatde, aoed ead
of qtearies dorsee 6 ivodtiw .emed 6 to yosving edd, gatbay
<srsds ,bestetacue ed ver sonshive a4} tad bied nasd eed
gat at erew ban of taee agen atetiel edt <oxed ga grevewod
yd beaistde ser avon yess 5aa chasdoud Ted 20 BoLenegang
~Inond etd tuodtiw aedied gaied asd? tedto. shaett To .a8eteb
bere2io srow yedt es ylralvottreg <biod oF haerod, Seq. iogtee
| wbetteb odd tesiage tad asdaud tod Feat sys. tom 9M 8.
-Stzew oxew yout Paty <eh Santegue Lye. eds. tad tne
evade oft 20 sae tuabandeh ait sot Snbnateoe ab. 42
~ive ed? Lie. to oem, ad 28 20 .somebive at iRita!
cs ban oanbne © maler axel hab net taste)
vend, of. pathent quaehine aye. pase Seg) $2. to | spieanionee
Moitautie edt gated tad bas begets mottos 20 seueo sit
outst “tt ot bastion o¢ ot Nak eg Sa cond: sb ie
6
Substantial error having been committed, particularly
in permitting the plaintiff to testify to conversations with,
and admissions by her husband, we are of the opinion, as
stated above, that there ought to be a new trisl, We re-
frain from passing upon the question whether the «verdict
was clearly against the weight of the evidence; for, even
if we were of the opinion that it was, it would still be
necessary, under the lew, to remand the eause for a new
trial. Mirich v, Forschner, Contracting Co., 312 Ill. 343,
Likewise, as to the instructions. At another
trial the evidence will be different, and so may give rise
to different instructions,
For the reasons given, the judgment will be reversed
and the cause remanded for a new trial.
REVERSED AND REMANDED.
©! CONNOR, Je CONCURS;
THOMSON,. Je SPECIALLY GONCURRING:
I concur in the foregoing decision, but in my
Opinion the fact that there may be different evidence
presented on the reetrial of the case, does not mean that
the instructions submitted and given will necessarily be
different, To avoid possible error on the re~trial, it
should be pointed out that the third and fifth instructions,
as given, were clearly erroneous and would be so, no matter
what the evidence ise
~~
\izeism if 1aq best tamoo asec gatived terse Last
eitdiw saoiteszevmes of ‘‘Ylitees of Tridatelq.
aa ,aotaige edt 26 s%6.2¥ -beadeus. nat. ww anclesians bas
cor of ,feixd wee s sd ot tiguo sted todd ,gtveds betata
goLbrove ot? tedgots acitesup 9 aeqy gateseq son} atest
ave .T0% qeonsbive edz ‘to tipiew edt deaiage Uissefo caw
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cig 403 4? tettiawe ae et. 4 waved axe ie o@ gent eit abo
291-31111
JULIUS KILOSE,
APPEAL FROM
APPELLEE , CIRCUIT COURT
COOK COUNTY.
Vs,
CHARLOTTE HAAG,
APPELLANT. oh | | j
Opinion filed March 2, 1927,
MR. PRESIDING JUSTICE TAYLOR delivered the
Opinion of the court,
On Mareh 14, 1924, a judgment by confession,
in the sum of $1,266.75 - being $1,000.00 principal,
$216.75 interest, and $50.00 attorney's fees - was
entered, in the Circuit Court, in favor of the plaintiff,
Julius Klose, and against the defendant, Charlotte Haag,
on a promissory note, which was signed by the defendant,
and payable to the plaintiff,
About a year laker, on March 9, 1925, an execution
was issued, and on March 13, 1925, returned, showing service,
demand, and no property found, and no part satisfied.
On March 27, 1925, an order was entered based on
a motion of the defendant, supported by affidavit, that the
judgment by confession of March 14, 1924, be opened and the
defendant given leave to plead, the judgment meanwhile to
stand as security, The defendant pleaded that she had paid
the note in full. ghe, also, filed an affidavit of merits.
MOAT Jagged
TAUOD TIUDATO
.YTaUOD HOOD
- Pat nl a a ae
nae one alee.
oO e4 i + KS re ut bya eee oe BAK vm }
r* (od ok LN agi THALES on |
weit ekg ek af doted belit mointgQ §< .° S084 > ,heiad i. |
ang me
’
o> oes, Oot Besevileb HOLYAT dol TAuUL ouLaL anAs a a! ‘ahs i. |
_ad 1009, dt Bo, 1
bot .moiseetaoo yd toomebst « .b80L .df do Te 20 gee
oe | leqtonttg 00.000.1§¢ gated - ev eds iG t0 awe os 1 at a
sew ~ adel e'yemtotts 00.08% bas fae te tat suai
etitéaislg edd to tovet ai .s1000 free odd iat
ayia,
a rh a0 eR tbo in sedis cadens svost nowty dual
bisq bsd ede tedd bebselq tasbacteb oat Vuthuese a8
etitom Yo thvebitte as beltt yoals .ede Lie? at
am
Therein she alleged (1) that at the time of the execution of
the note, the plaintiff told her she would not be reqtired to
pay any interest on it; (2) that for a period of about three
years, just prior to September 17, 1920, the plaintiff lived
at her home, and was furnished by her with board, clothing,
tobacco and incidentals; (3) that when he first lived with
her, he paid $8.00 a week for his board, room and services, and
continued to do so until September 17, 1920; (4) that on that
date it was agreed that he should pay $15.00 a week, in the
future, as far as he was able, ‘and that whatever of that amount
he Was not able to pay, should be credited on the $1,000.00
note; (5) that between September, 1920 and December 31, 1923,
at $15.00 a week, $2,580.00 became due the defendant, of which
amount, the plaintiff paid $1473.00, leaving a balance due of
$1107.00; and (6) that that balance, when applied on the note of
$1,000.00, left due her, the defendant, $107.00, There was a
jury trial, and, on November 18, 1925, a verdict for the plaintiff
for $1,000.00, and $50.00 attorney's fees, On November 20, 1925,
a motion by the defendant for a new trial was granted. There Was a
second jury trial, and on January 9, 1926, a verdict for the
plaintiff for $1,000.00, without interest, "plus fees,” At the
_ Second trial, three interrogatories were given to the jury, and
answered by them,
(1) Did the plaintiff and defendant make an agreement
on or about the 17th day of September, 1920, wherein and whereby
it was agreed between them that plaintiff was to pay to
defendant $15.00 per week for board and that plaintiff would pay
to defendant such moneys as he could, and the difference
between the amount of money paid by plaintiff to defendant and
$15.00 per week was to be applied in payment of the note sued on,
i
kA
ae
pa eee oo
to mottusexe sit to omit odt ts tadt (L) prem? os mtowed?
ot betiwper ed ton bivow eda ted blot tittaisig edt -weten f edt 2
eexdt tuode to péttsq s tOt tedé (&) {Fi ao scaceask te ee :
bevil ttttatefq ed¢ ORCL .SL todmetqe® of tobtq tent .atsoy —
(gaidteld (btsed détw ted yd bodstar?t asw bas .omod ted ts
dtiw bewti seriit od medw tsdt (%) j;elstmebtoni bas ooosdot .
bas .seotvies bas moor .btsoed sid tot doow s 00.8% biee of (ted 4
“tedt mo tedd (#) jOSeL FL to dns tqe8 fi jam o8 ob ot bewnitaos :
edt ah. loon 8 00,3l¢ Yea biveda ed todd peer sew ti etsh 7
Tavoms thd? to" toe Faalw asad bake, Alds asw of as test as oTutEt
00.600.f8 ont mo botibeto sd biuoda .ysq ot efde tom asw od
<8S@L LE wedmecet bas O8€L ,todmetqe# neowted #adt (2) eter ,
dotdw to ,tasbsstsh eit exb smsoed 00,088, S$) teow 8 OOLSLG ts —
to owh sonsisd = giivesl .00, eval? bisq YXttntsl¢ edt Fowoms 3
to ston edt mo betiqgqs nedw ,oonsled tadt teat (8) baw © (0O.TOLLe
8 asw otelt {OO.TOL$ \tasbreteb edd .cod ebb HST 00. 00058
Liténtel sie tot folptev s .aGCL ,OL tedwevow mo” {bae Letey Seuss
<28@L 98 TodnoveW 0 .aset e'yentotts 00.08% bas YO0,000is# rot
8 esw ete? betnsry esw [atts wor & tot tuebreteh eet YO Hot tom s
eft tot totbtev s .dSCI .© ytexmst mo Bas’ Lobe ‘ext birooos:
edt ta “a0? untq" teoretat twotittw CO. cOO i} tot ttttatslg
base . {tht edt oF nevtg brew eetsotegorIetal sent eisitth birod: a’
tnemoets# me efor tashnoteb bas MWitntelg edt Bia {L)
Weoreaw bas niotedw ,OSeL ,r9dwetqee to yeb HIVE od tode tO" a
og Yaq of eaW Wirmtele teat molt coontad Bawa a #2
veq bluow Viktatale tes bas brsod YoY vesw req OVE: yveteb
@ometsttib edt Bre’ ~bflvod od es ayorom sou aan o
bas tasbasteb of Ytttalslg Yt DEs¢ Yorom to ton ont
«fo bene ston edt to tmomyeq mi betlaqs ed ot aaw doow sx
-3-
This they answered in the negative,
(2) Did the plaintiff board with the defendant from about
September 17, 1920, to about January 5, 1924, This, they
answered in the affirmative,
(3) pid plaintiff and defendant, on or about the 3rd
day of January, 1924, arrive at an account stated, This, they
answered in the negative.
Motions for a new trial and in arrest of judgment were
made and overruled, and judgment was entered that as to the amount
of $1,000.00, the former judgment stand. This appeal is there-
from.
For reversal, the chief contentions are that the
verdict was clearly against the mi nifest weight of the evidence;
that errors were committed in ruling upon matters of evidence;
and that error was committed in regard to certain instructions.
Was the verdict manifestly against the weight of the
evidence? Sometime in the year 1916, the plaintiff, a man, at that
time, about 82 years old, went to board and lodge at 1927 School
Street, with the defendant. In making arrangements as to board
and lodging, the plaintiff, according to his testimony, said to
the defendant, "T got an income of $540.00 a year. If you be
Batisfied with the money, I give to you $540.00 a year." The defen-
dant testified that he promised her the interest on $9,000.00,
which he had, being $540.00 a year. Following their under—
standing, the plaintiff boarded with the defendant at the house
on School Street until the defendant, in September, 1920, moved
to 3711 palmer Street, and lived with her at the latter place
until January, 1924, when he left. The defendant testified that
during the time he boarded with her on School Street, she
received about $8.00 a week. On July 16, 1920, er a few days
tests |
ro.
sevitegen edé mt cutie evar A
tuode moxt #aabsoteh odd dtiw bised tritmielq edt bea: (Spios ove
yodt ,aid? ,SSOL .& yreunsl tiods of vuktiead
<ovidsmtttie)et nt bomewans —
biS efit tuodgs to mo .tmebasteh bas ttidnielg bia (6) * ‘
yedt eid? ‘doveta dmcoos me ts ovtrte ,ASCL yeteMmay tO Yb
-svistegen edd at: betewans
te erew tmempbut to teerte ot bas Isttt won a tokvamotsome os si vaca %
‘
tovoms edt of ae isit hetetne esw taomebet bas _beolurzevo bas ebsit “4
~oredt af fasqes sid?. baste. swemsbut remot edt .00s000L¢ 20
of olde ton Sgmont }
edt tedt ete anotitnetcoo tetdo oft ylsetevet tol) patos
jeomsbive edt lo idglow geohinan os tectags ttseLs sewitolbrey
: eorebive to eustiem aoge gativt at bettimmoo ezew etorte tadt i
“yasottousdant alstxso of bisget at bestimmoe eaw zowre tedtObad
edt to tdgtow edt teaisys yltactinen tobbrev edt as 9000.48 ‘.
tedt ts mom 9 ttitetslg edt .8L@I teey edt at omttenoe , testebive 4
foodies SSCL ts egbol bas bisod of tnow .b1o ersey SB toods fomit —
. btsod of as atmeomoxmetts eatadem aI. tasbhae tob edt dtiw yteents |
ot bisa ,Yoomttaet atd ot gaxkbroses Mitmtelqieds! gatgpolbas —
: ed poy tl .teey 6 00,0888 to smosat as tog I") .tasbasted ‘ode 4
; 9 te eAT Magee 8 00,0333 wey of evig I .yomom edt (dtiw bet tetdee 4
.00,000,.8% mo taotetmi edt isd beatmotg od ted bet tttee? ¢aeb
vaeban -atedd ghiwollol .1s0y 2 00.082} gated (Bad od onde
PaO edt te taahue teh Sat Atiw bebrsod Wt taksle eds ‘gatbnate
= Devon 08 «xoduotgs? iat <tnabasteb edt Litnn teette Leode® a6
—— :otahg TOttel edt te -r9d dttw hovbl bus .teoute xomisg LITE lot
tsdt betthteed daabneteb ed? .ttel ed sedw <880h cyreumsy Entas
5 Wile ghee td? Leodes to, sed dbtw bebsncd ait ante edt gah
wed
prior thereto, she, the defendant, according to her testimony,
borrowed $1,000.00 from him, the plaintiff, and gave him the
note here in suit; The note is dated July 16, 1920, payable
to Julius Klose, with interest at 6% per annum, and contains
a Warrant of attorney. She testified that she borrowed the
$1,000.00 from the plaintiff, and without interest,
On September 17, 1920, according to the defendant,
she had two conversations with the plaintiff, She says she
told him in the morning that she could not keep him for $8,00
a Week; that he said he would not pay more than $8.00 or $9.00
a week, and that he was going to look for a place, and in the
evening came back and said that he could not find a place; that
they talked about expenses; that she did not receive all the
interest that was promised; that she wanted $15.00 a week;
that he said he woudd pay it, but as he did not have enough
money, the difference between what he could pay and $15.00 a
week, should come off the note. On the other hand, the plaintiff
denied that she told him that she could not keep him any longer
for the amount of money he was paying. The plaintiff testified
that he loaned the defendant $1400.00, and that it was evidenced
by a check, dated July 2, 1920, for $1400.00. A check for
$1400.00 was offered in evidence. It was for $1400.00, dated
July 2, 1920, signed by Paul Schulte, payable to the order of
the plaintiff, and endorsed Julius Klose and Pp, Manes. FP. Manes
Was defendant's son-in-law, Across the face of the check were
the words, "J, M. Durgee, Cashier," The plaintiff testified
that he got the check from Schulte, and gave it to the defen-
dant to buy a house with, It was admitted by the defendant, that
in addition to receiving $8100 a week, she was having the use of
$1,000.00, without interest, Her testimony as to whether, in
abe
ewnomitaset ted of aath Tooos etaghacteh sd? .ede ,otetedt toLtq 4
eat mid eves bas .ttitntelg edt mid mort “90,000, te peworsdd “4
aie cOERE .BE let beteb et efor adr” bia im at te
eft bewottod ede tant bettitess of? asa bistearas.
itaevetni tuodéiw bas .Ytiearale od¥ mott 06,000.18 |
“adbasteb sat of paibtooos .O8@L (Tf todnstqee WO"Y we
ede eysa ede ,ttitnisl sft détw anotisetevied ‘owt bad sae"
: 60.88 <6t min qeex tom bEvoo ene dadt sated oith hE ta blot
i 90.08 ze 00. 8¢ asdt otod ysq ton biivow on bie rare a ae
: edd mi bas soele & 10% oor ot goicg ‘asw od ‘Psitd bak? {Rea ?
tet jeoatq « Batt fox bivoo od sod bie bas tosd oman garnets” ”
oe add [Le eviecet tom bib ode dad} jdeaheqne suede bedlet youd
ee “ison 6 00,ar8 bednew ede tedd -{beatmong daw’ isis deoxsdnt?”
& ‘Agron eved tom oth of ee tud (tf ysq ‘bho ot bib Gi tat 4
; ‘s 00. are bas ysq bluvoo ef tedw aoawted eomexettib eit e r¢ noi! a
“Mental edt basa tedto edd nO .eton edt “Yo amod “tb riaile “ eon 4
: repo ‘us mbit 90 dom biuod wie tadd at d ‘bret bene’ big! rr 1
|
‘ts,
boonebive sew ti tet Bre .00.00bL¢ Suabusteb oad wiuaeee e|
© rol foods 2 00.000 to? ORE \k ytut bewkb’ weRde 8 Ye
. botsh 100-0088 ror aan 1 asides vel ‘Bete To wai OO. benidll
aoa 6g .honsit .¢ bas seolX auton beaxobme bas > sanaliee a ae
etsw Zosdo a to sost ed¢ eeoto, -wel-mt-moe e'tabbineteb ‘ea
“belttdeos “Milvatetq od? " netdaed sestua it 2 Sapa ie
waotan oats or cm ores bas tasgramg bi thand phe fap toes
to eeu edt ape i eew ode dHoow s O0l8y iin se Bm bt ei y
Beh ight. FE ne mgs
at tase of ee gio act tei “deers wae .00.000..
eA i
oh le Aan ly Tn dade Cm) Oe sO a. Soe:
-5=
July, 1920, she was paid $1,000.00 or $1400.00, is somewhat
confusing; at first she said she did not see the check, and later,
that she did not remember, In January, 1924, the plaintiff
left, and stopped boarding with the defendant. He testified
that when he left in January, she told him to call in March
for his money; that she had a $2,000.00 mortgage, and if
she got the money she would pay him; that on March 1,
1924, he called for the $1400.00, and she told him that
the man who owed the mortgage had called, but as he had no
money she could not pay himk the plaintiff, The defendant
denied that she told him to call in March, or that he was
there in March, but admitted that she had a mortgage for
$2,000.00, and that the plaintiff knew of it, She testified
that when he left in January, 1924, she told him he owed
her $1,107.00; and that he said he would give her back the
$1,000.00 note,
As to the claim of the defendant that the plain-
tiff agreed to pay $15.00 a week, her daughter testified
that she heard the plaintiff, in September, 1920, tell her
mother that he would pay $15.00 a week; anda son of the
defendant, paul, testified that in July, 1924, he heard his
mother ask the plaintiff about the note, and that the defendant —
said, he did not hage it with him, but would bring it in a few
days, and that as to the $107.00, he would settle that later on.
From the foregoing recitation, it is obviate that,
whether a promise was made, by the plaintiff, on September
17, 1920, to pay $15.00 @ week for his board and lodging,
depends very greatly, if not entirely, on the credence given
the different witnesses, particularly, the plaintiff and the
defendant. The check for $1400.00 is strong evidence that the
defendant actually borrowed $1400,00, The plaintiff testified
— |
. tedwemoa af .00.0081% to 00.000. L$ bisq asw site 08er Seti
stotel bas .foodo edt coe tom BIb éda Hise oda tert? ts “ pgertaw too
ttitaislg¢ edt .ASeL .yisiAst at ,2odwems ton bib ede ted?
betittecd eH .duabasted oft dtiw yathteod baqgote bias yt tol
Hotel at Ifeo ot mtd bfot ode Yxnunwh bi Stal ba medW dads
ti bas .ogsst tom 00,000.88 6 bas ode teat © (Xenon sid’ rot
.l dows no ¢edt mtd yeq bivow ede yemom od¢ tog oda
tadd mtd blot ode bas .00.008L$ edt toY befleo ed .b8eL
on bed od as tud .belleo bed ogsgttom edt bere: odw” ae put
dnebueteh on? .ttitetslq edt ytd yeq fom hives ede .yentm
asw od tedt to .dotsl at ifgo o¢ mid BLOF ‘eda ted? bolwes
tot exsation s bed eda tadt bottimbs sud “do relt ai exedt
bettitast of .tf to wend ttitsisle edt tedé bas .00,000,
bowo off mtd Blot ede Gel .yxeunet At Pel ed neliw tent
edt Yosd tod sviz bluow ed bise of tedd bas {O0.T of cg red
jeton 003000, 1¢
-nielg odt tadt toebaoteb edd to ites ont or ag toe
bsititast totdgusb ted ,.doew & 00. are ys or ‘bestgs Tite
mod Lfet .OS@L .rodwetqo®? mt ,ttivatsfq edd bused ede Hedd
adv to moa s bts jxeew s 00.8f% yer biivow off tad?” teMdtom
sid Bised of SSCL .ylnt ot tedt bottitesd” fue? \Hnabie ten
_tasbasteb oft ted? bas .oton st tuode TuHtntely ott ta: Lonton
Wot B ak $f gotcd blvow tud wid dtiw $f owed ton bib of (bisa
+f0 total tedy ofttee bivow od 100-018 ode of ua sahde tee eb
8 Peeene ia Gee
etadt. pee ai ti mottstioer gaiogerot edt mor gti mate .
todmstgqe2 oo ,ttitnisiq edt yd .sdbem sew PING, & tod? edw F
<Bitigbol bas breed eid rot Yoow 8 O0.3l% yaq ot QOBGL TL
sovig eomsboro edt mo .yLotitae tom tk yylisery yrev anogeb 4
1 edt boe tiitaisiq edt .yiislvuoittseq (mesesatiw saoretiih edt {
ie : edt tsdt conebive grotte at COyOORIS tot dosdo edt atasbaeteb :
beititess Tiitalelq ost .00,008L$ beworzed ‘Uisstoa taahae 20b 3 )
ee ATE Le Ve
aT ee ae,
G«
he gave it to her and her testimony shows some vacillation,
and is quite confusing, It is admitted by both sides that
the $1J000 note was given, and that no interest was to be
charged on it, The plaintiff claimed that in January, 1924,
she told him to call in March for the money on the note,
and that he did so, and that she said she could not pay him
because her mortgage debtor was not able to pay her, That
is denied by her, Of course, we have not had the witnesses
before us, and 80 we are at @ very great disadvantage, At
the trial, the plea of the general issue was withdrawn, and
counsel for the defendant stated that he stood on the plea
of payment, and admitted that the burden of proof of payment
was on the defendant, To the interrogatory of the defend=
ant, was there an agreement for $15.00 a week, the jury
answered, no, Bearing in mind the issue, upon whom was the
burden of proof, the evidence, the finding of the jury; the
fact that credence to be given the witnesses was of vital
importance and that there have been two trials, resulting
in like verdicts, we are of the opinion, notwithstanding many
discrepancies in the evidence on both sides, that we are not
justified in overriding the verdict of the jurye
It is contended that the court erred in admitting
in eviderwce the check for $1400.00, which the plaintiff
testified he gave to the defendant, That, in our judgment,
is untenable, The plaintiff was entitled to state in detail,
if he saw fit, what took place at and about the time that the
$1,000.00 note was given by the defendant to hime If at, or
about, that time he loaned or gave her a check for $1400.00,
he had the right to say so, and produce and put in evidence
the check, The fact that the defendant admitted the consider
=3~
Me
fanaete.*
woiteliiosy omoe awode yaomitest ted bas ted of ot eves. ed q
edt eobta dod vs betetese af #1 JgateuYdoo oftep uF bas”?
| ed o¢ ase tasretat on tadt bre .sevig asw ston odokre eae
<28CL (yreuael ni ded¢ bemtelo Ttitaislg edt «tt no begtsdo tet
~ston edt ao yenom edt tot dots mt Iles of mtn Biot ‘oda eae
uid yeq ton Sivoo ede bisa ode Jett one (oe Bib of Fed} bus *°*
ted? .tod yeq of ofde ton wow totdeb egsettom ted eeusced ”’ ”
eescontiw edt bad ton eved ew .oesuoo 20 .ted ye betnol ef pen
tA ,«@gstasvbsaib tserg ytev 8 as oTs ew ce bas ve ouotee * ent
bas AIEEE all — Letomey ott to wel edt .feitt veil
solg edt ‘no hoote ed dant betste tashasteh ont 26t Teahwoo "°°
tnomysq to toong to aebiud eit tedt bettitbe bas ,thamysq Yo” |
“basteb edt to yro¢sgorretai oft of ,taebnsted eit 40 eae
yiut edt yleow 8 00.df% sot taameerge a8 otodt aew das
od egw mode noqy ~svesi ott baim ai goiteea Jon .beTowan
Nie edt yytet edt to gaibait dé <Sonebive odt teore ié“mabae*
| fativ to saw asarentiv odd movig sd of eomebst bed bat
gaitivest .aisirs ows seed evel stodt tadt bas soastt sonst roqmt TTEs
yasm goilbastedtiwton .sotaigo edt to sts ow <atotbrev ny ie yeast
ton 918 ew ted? ~eobtie ditod mo sondbive edt mt esto meqetoat Sr das
wxtut: edt to fotbrey srt gatbirrero nt belytteut
y wae Vee Toniam Ms
gaits inbs at berzs: t109 adit tant Seana. we Tho BOY ot bee
titetelg out so btn .00,00819 Tot dosdo odd eomebéve.ak . . 2)
ataompburt x50 at tag? ,tasbasteh ect ot oveg od beititess
,
|
7
clisteb at eteta ot Seltitas aan YWitatelg oap jetaddbdau ef 4
.
;
4
9 edt dade Omit edd tvoda bas $8 e0sfq doot team (31? Wee ed gpitet .
Ba to ,ts Li eld oft tosbretebh ed? yd Revis ssw ston 60,0001 Edie,
-00,00AL2 10% doedo beastie setlenonned on ound basen ie
: anes eit bettimbs tasbestes ant wines fost edt jie Ss Lost :
tag: eat stank wath GREG hemos of Uplate a vn be
‘3
onF on
ation for the $1,000.00 note, did not, per se, deprive the
plaintiff of showing what constituted the transaction in
question, Then, tvo, the defendant had testified, before
the note was offered in evidenee, that she asked the piain-
tiff for $1,000.00, and did sot ask him for $1406.00, end
when shown the cheek in question, testified somewhat vaguely
about it. In reelity, there were quite a number of reasons
why the check wae not only competent, but very important
evidence. It wae isporteant, even, sa bearing upon the de»
fendent's credibility. The defendant undertook no explans<-
tion of the check, although it was endorsed not only by the
plaintiff, but by P. Manes, the son-in-law of the defendant
and Peter Wenes was not osiled, although his wife was.
It is contended that, ae the defendunt, on February
25, 1924, sent a statement of sccount to the plaintiff, and it
wis received by the plaintiff and not seasonably objected to
by him, it became an xocount stated. fhe evidence of the
pleintiff shows, however, that a few days after the Letter
was sent, he come in frou whiting, where he wes living, sad
visited the defendant, and told her that he had come, aa she
had asked him to do, for his money, and that in answer to
his request, she teld him thet « aan who ownd her 2 certain
mortgnge, ¥ae then unable to pay her, and, therefore, she
wae unable to pay him, the plaintiff. ‘that evidence prevents
the inference that the pisintiff, by reason of not answer~
ing the @dafendant's statement, had senetioned the written
account.
It is contended thet error was committed in regard
to certain instructions. The ebstract fails to show st
whose instance or request any of the inetructions wee given,
ato
Ys ” dee
ot avitgeb a8 teq .fom bib ato eo: bat 0 aoa
ni nolfoesacrd 93 betutitanvo tie ai wore to tisbatale
erated .boiti¢aet bed teahanteb at ood anit" ablbeae
“sabes ang bedea ode sade soasbive ak poxoite ann otal edt
‘eal
bar .00,000L8 tot mid des tou did bas £00000 a rhb
mS cn a ot Dus
aiiwano b itigeer no Brae ad ioaito ade aeorta ode
loner ° dp fea ae Bie 6d
phtewr ti tuoda
auonaer te sods e st kurp anoe oreds we : ns Pies
saserognt Wey tue stms20qa00 vine ton naps ot
sb Sit some gaizsed Be tore rene on Di seaetees
seston 0 ont soe tinbins Fev ita oat « ‘ee Labora, "fees
oat w tis@ tos beetebss ecw tt Ag uot Le afeorio ad?
sasbae toh oat to eafnninnos ag «sonal . we turd lak
‘ oar me etd syuoris fa Solten tox rd mene
i | emer am: gona ah wt a6 tad? bobestass af oI daswana
tk bine QRtePadAte say ee Fewados Yo tracatate o tape ‘SRE 488
OF havoetde YLEAMOARSe gor bas Thteniely ott W hetteoeT eee
sue to soanbivs sat .borste tavvecs at enaned thenbh ee
eehel ede vette egab wet o tady <tevewed yawode thiemtelg
ene eBaivil nem wet venir Qntvtit wor’ G2 ommeed yon aw
Pe ae ae ,
OF wewene at tacit Seo yao ett TOT .ob oF att bodes bad
BK aes
alstxep 2 xpd bawo ode ata 4 tat wha fod Sila «tonupon etd em
Eats STS at BSS aa at
te eit seemed Ren Tad ye0 ad nan mde ‘sh eae
“MIEMYPNE ponapive saat ,2RAtatalg ode said yoq of eldane aan
NI are at eee oe tent : oo
rah Be) aettisw
POP LE OR aaedlte. a Red: wera te Keicete es woke dawhh ean oon
fade Mae
nnn, hed, sfemmesene ct amabne ran 94
vs git
=—Be
and the record is defective in the same way; nor does it
show who submitted the instructions that were refuseds
The court said in Martin ve Cs & Me Blece R- Re Cosy 220 Ill, 97s
"It is important to know at whose request
the instructions were given, in order that any
alleged error in giving same may be properly
considered. It is not the province of the court
to resect to conjecture for the purpose of determ—
ining whether @n instruction has been given at the
request of appellants. * * * put it is the duty
of the parties bringing the record to this court,
to make the alleged errora clearly appear, the
rule being that the bill of exceptions is their
pleading, and must be taken most strongly against
theme" Boyd Vs Schnell, 209 Ill. App. 1875
It is claimed by counsel for the defendant that
in some way the plaintiff, while on the witness stand, was
guilty of misconduct; apparently in answering questions.
The plaintiff, at the time of the trial, was over ninety
yearsof ages Counsel cit@ as illustrative of the plaintiff's
misconduct, that when plaintiff's counsel asked him the
question, "Did she (meaning the defendant) +e11 you that
she could not keep you any longer for the amount of money you
were paying?" the plaintiff answered, "No, she was satisfied
to get what I gave her," Gertainly there was nothing extra-
ordinary about that answer; in fact, i+ was quite natural
that the witness, presumably not having a knowledge of the
rules of evidence, should answer the question in the negative,
and then give the reasons fhree or four other instances
ef alleged misconduct are called to our attention in the brief
ef counsel for the defendant, but in none of them do we find
anything of substantial importances
Finding no substantial error in the record, the
judgment is af firmed. AEFIRMED:
O'CONNOR, J. AND THOMSON, J. CONCURs
ti eeob tom ;yew omsa oft ai evitgeteh af brooer ont bas
sbesutsr etew tedt enoltourteni sdt bettimdve ode wose
ied eifI OSS .,00 «fh .f ,99l0 .M 2 2D ov aitreu at bisa $00 ont
taeupet eacdw ts wond of tueteoqmi af 37% 6? et &
; yas tsdd tebto al ,aevig stew enoltouttent odd
yizeqorg ed y8u onmsa soivig ai torre begelie ~
txruop sdt to senivorq edt ton ai #1 ebianoo
—srsteb to eaoqrugq edd rot extifostaeo ot WOOP arr #
edt $s mevig need esd coitoutieni as pitantereed gaint
wiob edt si ti tud ® * * ,atmsileqqs to teeyper ~*~
j tives aids ot Hroosr edt ygoigaizd asitieq odd to —
edj ,yxssqqs yirsslo aroxrse boageiis eft examot ~~
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93 - $122)
PAUL ADAMITIS,
Appellant, APPEAL FROM
MUNICIPAL COURT
OF CHICAGO.
Va
NELLIE McARDLE, . |
Appellee, Pes A [. Land
Opinion filed March 2, 1927,
MR, PRESIDING JUSTICE TAYLOR delivered the
opinion of the court,
On February 13, 1925, a judgment by confession
_ was entered in the Municipal Court of Chicago in favor of
the plaintiff, Paul Adamitis and against the defendant,
Nellie McArdle in the sum of $412.21, being a balance alleg@d
to be due on a $1,000,00 note and $36,80, attorney's fees.
As a result of a motion and verified petition by
the defendant, the court, on July 16, 1925, opened up the
judgment, and gavé the defendant leave to make a defense,
the judgment to stand as security, and the petition to stand
as an affidavit of merits,
There was a trial before the court without a jury,
and on February 20, 1926, the original judguent was vacated
and a judgment was entered in favor of the defendant. This
appeal is from that judgment.
At the trial the plaintiff introduced the note in
evidence, and rested, The note was for $1,000¢00, dated
February 27, 1922 and signed by the defendant. It was
payable to the order of herself and due in 18 months from
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its date, It was endorsed by her, and also, by M. Albert
iver, It recites that it was seoured by a junior mortgage
on certain real estate and was inferior to 18 other notes,
aggregating $5,000.00, On the back were certain endorsements
of payment leaving a balance due of $334.16, It is the
theory of the defendant (1) that the note was paid; and (2)
that she had a good defense against Iver, who had taken
the note before maturity, and that the plaintiff (as she
Claimed) took the note after maturity, and, therefore, he
was not entitled to recover, The plaintiff's theory is
that he took it before maturity, and that it was not paid.
fhe defendant introduced in evidence, over plaintiff's
objection, what purported to be a memorandum dated May 19,
1923, and signed by one N. Albert Iver, It stated that it
was to certify that he agreed to give her for her interest
in 4911-13 Calumet Avenue, her original investment and ten
percent in cash including "all payment" on second mortgage
note at any time within one year from date upon 90 days written
notice,
Also, there was introduced in evidence over plaintiff's
objection, a memorandum dated July 16, 1923, signed by
N. Albert Iver and Nellie McArdle, the defendant. It
stated that he agreed to purchase and she agreed to sell
the Calumet Avenue property for the net sum of $4500.00;
that he was to assume all mortgages and that if the contract
was not olosed in 30 days, it would be mull and void,
She testified that she met Iver at his office and
received the money which was promised, She further testi
fied that she made the payments which were endorsed on the
Sattied , acca ia
nan
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back of the note; that Iver had the note there the last
time, in June, 1923; that when the deal was closed, nothing
was said about a further payment on the notej that her name
was not in the telephone book and she did not suppose the
plaintiff knew where she was, When asked as to what occurred
at his office, when she received the purchase price, in
regard to the note in question, she answered, "That was
to go ing I had no gonvetsation on that note," ‘There was
introduced in evidence, over the objection of the plaintiff,
@ warranty deed, dated August 8, 1923, from her to N, Albert
Iver and Esther B, Iver as joint tenants,
One Marshall, an attorney, who was the trustee
in the trust deed which secured, among others, the note
in question, testified that, on February 9, 1925, the
plaintiff called at his office and handed him the note,
and asked him how it came about that he, the witness, had
executed a release deed which the plaintiff had found, upon
examination, on record; that he, the witness, said he would
look the matter wp and let him know; that he asked the
plaintiffwhere he, the plaintiff, got the note, and the
Plaintiff replied he got it from Ivers a few months ago, this
last summer (meaning 1924); that he, the witness, said,
"You got it after maturity", and the plaintiff answered,
"Yes"; that the other notes were all paid and cancelled.
There wad introduced in evidence a letter
dated February 11, 1925, from the attorneys of the plain
tiff to the witness Marshall, It stated that the plain-
tiff was the holder of note 19, the one here in question;
that it had been given to them to collect; that they found
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no record of a release deed purporting to be executed
and acknowledged by Marshall; that they, the plaintiffs,
had confessed judgment on the note for the bajlancé due,
and were sending the letter to let Marshall know what
had been done so he would have an opportunity to investigate
the matter, as to any liability he might have incurred,
The defendants there rested and the plaintiff
moved for a finding in his favor, This was overruled,
The evidence of the plaintiff is as follows; which, taken
‘literally, is somewhat confusing; that he had known Iver
for several years; that he acquired the note on April 30,
1923; that on that date Iver owed him $5,000,00 which
was over due; that Iver paid $500,060 on that date and
later on gave him the mote for $800.00; that he said to
Iver that he needed the note and he, the plaintiff, asked
him, what for, and Iver said he wanted the note back and
he gave it to him and Iver gave him a trust receipt and
he, the plaintiff, gave him the note and also another note
and Iver kept that for a few days and after a while he
gave back the trust receipt; that Iver owed him, prkor to
April 20, 1923, $7,000.00, andhe, the plaintiff, had a note
for it; that Iver gave him a note for $800,00, and he took
back a note for $5700400.
The plaintiff introduced in evidence a note dated
April 20, 1923, for $5700.00 signed by Iver. The plaintiff
further testified that om April 25, 1923, Iver wanted the
note back and he, the plaintiff, gave him the two notes and
Iver gave him a trust keceipt.
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The plaintiff offered in evidence a document re~
citing that he, Iver, had received from him a $1,000.00 note
and a note for $5,000.00 which he, Iver, would hold as
bailee and turn oWer on demand, or property of equivalent
values
The plaintiff further testified that he kept
asking for the notes; that before the and of June, 1923,
Iver gave him back one note; that the note in question
he has had in his possession ever since that date; that
he first learned of the release of the trust deed when
he went to Marshall's office in February, 1925; that he
went to Marshall's office in February, 1925, and asked
Marshall where Iver was, and Marshall said, he had not
seen him for a long time, He further testified that he
had possession of the note from the latter part of June,
19235 until he entered up judgment on it} that he has
never received any payment for it; that he did not say
to Marshall that he got the note after maturity; that he
never got the $5,000.00 and is out that amount also; that
he had looked for Iver for over a year but could not find
him; that he understood he had been indicted,
He further testified that he gave Iver the note
in question in April and Iver signed the receipt} that
it was returned to him 60 days later with the endorsements
on; that he asked Iver for the money, and Iver said, "I
will take care of yous"
There was offered in evidence on behalf of the
defendant, an affidavit signed by N. Albert Iver and dated
August 27, 1923, in which Iver deposes and says that "note
aie
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Pt
~be
No. 19 in the amount of $1,000, mentioned in the trust
deed from Nellie McArdle to Edward Marshall, trustee,
dated February 37, 1922 * * * has been paid and marked
cancelled by me. This affidavit is made for the purpose
of securing ani indemnifying bond from the American Surety
Company of New York, indemnifying the Chicago Title @
Trust Company against any loss by the presentment of said
note No, 19 for repayment to any alleged holder."
The affidavit of Iver made for the purpose of
securing an indemnifying bond, was purely ex parte, and wae
inadmissible as evidence against the plaintiff, Iver is
not @ party to the suit, and what he wrote can not be
considered as evidence in favor of the defendant and
against the plaintiff, If iver had been called as a witness
he could have testified to what he knew, if anything, about
the fact of payment, and then could be cross-examined, Buty,
such evidence may not be sugplied by an affidavit in pais.
Mr. Justice Breese said, in Manny vs Stockton, 54 Illy 506,
"There was no error in excluding the affidavit of Marshall,
It was not evidence in the caus@, was ex parte, and amounted
to mo more than hearsay evidence," Shreve v. Town of Cicero,
129 Ill. 226, 229; Quinn v, Rawsoy, 5 Ill. Appe 150; Petrea
Ve» Hediger, 175 I11. ApPe 305, 208,
We think the evidence for the plaintiff that he
got the note before maturity, that is, before August 37, 1923,
is quite overwhelming, It is the testimony of the plaintiff
that he got it before maturity and that is corroborated by
the soecalled trust receipt of Iver, which is not disputed,
and which is dated April 25, 1923, Further, then, as to
teutt sat ai begotinem .000.L% to ¢avome out at @L vol
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payment, eBcluding the affidavit of Iver, of August 37, 19233,
there is practically no evidence that the note was ever paid,
The defense set up in the defendant's affidavit of merits is
payment, and yet the most that can be made of the evidence
for the defendant is that Iver and his wifejagreed to assume
it, as part of the tien on the property. That is insufficient,
It is claimed that the plaintiff was not diligent, but the
defendant was the maker and it was her obligation to pay it,
and not the plaintiff to seek her out and make a demand,
It is true the evidence is conflicting and in
many Ways cOyfusing, but, after the judgment was opened
up, it was the duty of thedefendant to prove payment, and,
in our judgment, she failed to do sO,»
The judgment will be reversed and fhe cause’
remanded with directions to confirm the judgment of
$416.21 in favor of the plaintiff and against the defendant,
REVERSED AND REMANDED WITH DIRECTIONS»
Ot CONNOR, J. AND THOMSON, J. CONCURs
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FRANK WAISMAN, doing business as
)
WAISMAN REALTY COMPANY,
Appellee,
APPEAL FROM
Vo MUNICIPAL COURT
) OF QHICAGO,
A. ROOTBERG AND MRS, A. ROOTBERG, )
Appellant,
Opinion filed March 2, 1927,
MR. JUSTICE O'CONNOR delivered the opinion
of the court.
Plaintiff brought an action against the defendants
to recover #3750. 00, which he claimed was due him as com
missions for obtaining a purchaser for defendants! property,
The amount claimed was three percent of $125,000.00, which
plaintiff alleged was the amownt raceived by the defendants
for the real estate. The case was tried before the court
without a jury and there was a finding and judgment in plein-
tiff's favor for $3735.00, which was three percent of $124,500,00,
being the amount for which the property was actually sold,
Plaintiff offered evidence tending to show that
he was engaged in the real est-te business in Chicago, and
that on July 15, 1923, he and one of his employes were solicit-
ing property owners on Jackson Boulevard to list their real
estate for sale with him; that on that date they called on the
defendant Mre. Rootberg at her home on Adams street and that
she authorized plaintiff to sell a piece of real estate owned
by herself and her husband which was located at the southeast
corner of Jackson Boulevard and Springfield avenue; that the
price she asked for the property was $126,000,00, subject to
hs i ee A eS EW eo Ow
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“son es wid exd ssw bemielo ed do trie 109 O8TER tevooss, of:
wWhreqory ‘esanbreteb tot teasdexuq ¢ gatatetdo ret enoteata
de ttl °y00 000 {RELF tansizeq oot sew bewba li” touoms edf
etnab ae teh oft YS bevisony tavons et onw begetia tuttatetg
Stiuoe eit eteted Betts asw seco sat vetotes Inst off “oY
-~nislq ai Sasmgbut, ‘bas gotbott ¢ eam ovens bas. yxal & tuodtiw
0b ARIE to tneotsq esttt sew Mo iw 080 BETS vot tovel gt kRt¢
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fadt wore ot yathast somebive bexetto Tiitalemst
bas ,0gs0fd0 mi emeniaud o¢-ta8 Leer edt af Segagne aaw od
| station erew eeyolqus eit to en0 bas od SOL ar VLG #0 taste
: «feet Tiedt teil ot Hreveivos nowteg, no exenqo tWreqotg gat
item bellse Youd eta tart no dat yatd dete ofee 20d epates
eds bas teorte amabA 20 smod tod ts gredtoos *8tM Saabastep
bonwo steve Imex to sosia & Lies of tttiatalq bestrodtus ede
- tasedtuoe oft te botsool few doldw buadeod ted Sas Meeted yd
i edt dad? jounsve bleitgaixg? bne bravelves noexesk to seaxeo
OF fwetdue .00,000,0819 aaw yexeyore ed? x01 boxes ode colsqg
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two mortgages, one for $57,500 and the other for $20, 000,00;
that a cash payment of $35,000,00, would be necessary to ef-
fect a sale, Plaintiff's evidence further tends to show that
Mrsg Rootberg directed them to her husband who was working,
on that date, at another address, and that plaintiff and his
representative called on Mr. Reotberg and informed him of the
conversation they had with Mrs, Roeotberg and that he ratified
what she had done, Piaintiff's evidence further tends to
show that plaintiff listed the property for sale in his real
estate office and that in November or December, 1923, he
submitted the property te one Benjamin Rodman; that he had
taken Rodman to see the property; that Rodman seemed to be
interested, but stated that he could not then make the pur
chase unless he obtained a partner who would be willing to
buy the property with him and that when he was ready he would
notify plaintiff in the matter. fhe evidence further shows
that on February 4, 1924, the defendants entered into a cone
tract for the sale of the property with Rodman; that the pur-
chase price agreed upon was $124,500.00, and that on March
13th following, the sale was consummated; that sometime after-
wards plaintiff learned of this fact and took up the matter
of payment of his commission with the defendants, but they
denied all liability, The evidence further shows that three
per cent was the regular usual commission charged by brokers
and there is no complaint that the amount of the judgment is
excessive, The only @mntention is that plaintiff was entitled
to nothing because he had nothing to do with the sale of the
property, but on the contrary, that it was sold by the defend=
ants themselves.
g~ SOM = PRS
100.000, 08% tot redto eft pam 008 ¢ Te 362 eno .eeg tye:
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ted? wode ot ebaet reiitrwt somabive eftttieatel{ ,elsee # toekt
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eld fe Titately tect bas .seethba tedieng 28 , tah dad? mo
ed? to mid bewretat bus gredteoh .1M ao holian evigstmesetqet
boitite: od tadt das groddoof .a1K ditw bad yedt aoldantevaes
ot ebnet tedtawt eonebive a'ttitais!< .eseb bad ede tedw
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ef od bomsse membon tadt ixfteqorg sat 998 0% emmboR aedat
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ot gailliv sd bivow odw teatraq 8 beatstde ed eesioy.easdo
bivew od ghews. pam. od eo taste bas aid dein yrteqeng. edt wd
ered, tedtrut somebive. ont xed tage edt ak wtgtele wlio
ten 4 otat dexovae etarhusteh si? AECL > yravedeT go sedt
oR odt tad? jasmbor atiw ytregotq edt to olan. ont cot toext
RRR #0 RAE, BP PORDEED, 96m, Sony, Deere RehEN oppte
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The defendants denied that they had listed the
property with plaintiff and denied that plaintiff and
his representative called upon iirs. Rootberg on July 15,
1923, or at any other time prior to the sale of the pro-
perty. Both defendants testified in substance that they never
heard of plaintiff in connection with the sale of the pro»
perty until sometime after the s2le was made, when he made a
demand for commissions, They both testified that they had
never listed the property with him or any of his representa=-
tives and had no connection with the plaintiff or his ree
presentatives in connection with the sale of the property;
that the property was sold to Rodman through a Mr. Stein,
who was a partner of the defendant Rootberg, and that Stein
was the one who interested Rodman in the property.
Rodman, the purchaser, called by the defendants,
testified that the property had not been submitted to him
by the plaintiff or any of his representatives; that he had
walked into the plaintiff's real estate office sometime in the
fall of 1923 inquiring if plaintiff had any bargains in the
real estate line and that plaintiff took Rodman to see two
pieces of property, but not the property in question; that
plaintiff never mentioned the property in questiom to him,
He further testified that he bought the property direct from
the owners whom he had known persoyally and intimately for
seventeen or eighteen years; that the defendants had built
the building about two years before, that he knew the build-
ing from the time it was being built and that he and the
defendants visited back and forth frequently.
In addition to plaintiff's testimony a number of
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his employes testified corroborating his version of the
transaction. We think it would serve no useful purpose to
analyze the testimony of the several witnesses in detail,
because it appears fro» what we have ' said that the
evidence offered on behalf of the plaintiff, and that on
behalf of the defendants, is in hopeless conflict, There
is no doubt a great deal of perjury was committed in this
case, We cannot tell upon reading the record, which side
is telling the truth, but under the law, we are not warranted
in disturbing the judgment, unless we are of the opinion
that the finding and judgment of the trial court is against
the manifest weight of the evidence, The trial judge was
in a much better position to determine the truth of the
testimony of the several witnesses than we are. He saw
them upon the witness stand, we have only the printed page
before us, and since we are unable to say that his finding
is against the manifest weight of the evidenc, we are not
warranted in disturbing the judgment.
Counsel for the defendant argue a number of proposi~
tions of law as to what facts must appear before a broker
is entitled to his commission. It would serve no useful pur=
pose to discuss the authorities cited, because the law is
clear and well understood that before a broker is entitled to
& commission, the sale of the real estate must have been brought
about by his efforts, He must have been the procuring cause,
In the instant case, if the evidence offered on behalf of
the plaintiff is to believed, we think, under the law he
was entitled to the commission, His evidence is to the effect
that the defendants authorized him to list the property for
ed} to solerey eid yattstodortes BePtiveey Weyolqme aid
x ot seoqreq futeau om evree binow ti dakde? oF to Heo senirt
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was OF 61S o0 nodt seomentin Lavevee wt’ Yo ydouittad?
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sale and to obtain a purchaser for it for $126 (D0, 00;
that he listed the property and afterwardg showed it to
Rodman, who later on purchased it for $24,500.00. In
these circumstances, we think there is no rule of law
that would warrent us in disturbing the judgment.
The judgment of the Municipal Court of Chicago
is affirmed,
AFYIRME Re
TAYLOR, PeJ. AND THOMSON, J. CONCUR,
(7
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23 = 31129 DAATA € 3 7
PEOPLE OF THE STATE OF ILLINOIS, )
Defendant in Error,
ERROR TO
Vo GRIMINAL COURT,
GOOK COUNTY.
ADAM BARTOSH,
Plaintiff in &rror. )
Opinion filed March 2, 1927,
MR. JUSTICE O'CONNOR delivered the opinion of
the court,
Adam Bartosh was indicted by the grand jury in
the Criminal Court of cook Gounty. The indictment consisted
of three counts: The first charged the defendant with larceny
as bailee of $500.00, the money of wary Urbanski; the second
count sharged that he had obtained $500.00 from Mary Urbanski
by means of a confidence game, and the third was a larceny
count. The state nolled the second and third counts and
waived the felony in the first count. The defendant entered
a plea of not guilty, the cause was submitted to the court
without a jury, and after hearing the court found the defend=
ant was guilty of "petit larceny", that the property was of
the value of $14.00, a fine of $1.00 imposed, and the defend=
ant sentenced to six months in the House of Correction,
The evidence shows that the complaining witness
Was Mary Rapenski; that she was twenty-three years old and
single; that she met the defendant Adam Bartosh in March,
1924; that prior to the time she met him she had been employed
in a restaurant washing dishes and later worked in a factory
and had saved up $530,00 which she had deposited in a bank,
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The defendant was about twenty-nine years old, and witnesses
for the people testified that he kept company with the com
plaining witness; that shortly thereafter he provosed marriage
to her and was accepted; that he learned that the prosecuting
witness had the money in the bank and stated that they would
be married and buy # home and for this purpose he wanted
to get the money from the complaining witness. She testified
through an interpreter that she gave him the money so that
he would help pay for a home for them where they could live
after they were married, The evidence further shows that
shortly thereafter the complaining witness learned that the
defendant was a married man and demanded her money back, but
was unable to obtain any part of it,
The defendant admitted that he got the money from
the complaining vitness, having gone to the bank with her
for that purpose, but denied that he had proposed marriage
or that anything was said between them on that subject, but
on the contrary, he testified that he told the complaining
witness he wanted to buy a half interest in a soft drink
parlor; that she loaned the money for that purpose; that
he bought a half interest in the soft drink parlor for
$900.00, giving the money, the $530,00 which he had obtained
from the complaining witness, in peft payment and that he
paid the balance out of his own money; that upon purchasing
his interest in the soft drink parlor, he proceeded to assist
his partner in the operation of it, but a few weeks thereafter
the place was closed by the city officials on the ground that
his partner had violated the prohibition law by selling
whiskey, The defendant further testified that when he borrowed
“f=
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gitdvessorg oat tact bemrael ed tsd¢ yhatgqeoos ecw bas xed ot
bivow yedt tact betete bas dnsd edt at yeaom od? bed eeontiw ;
betnew of sseqreg eidt 16ot bee omod 2 youd bas boittsm ed
bottiveed ade _ Baoat ie agintelenes ett sort yenon oa? tea of
¢edt oa Yemos oft mid evag ada tads setergzetal aa dy worst
evil biwoo yeort erode wedt tot omad # rot yaq ‘qled Bivew sai
geet ewors sedtrut soashive exT «betetem orew yond rotts
ante tedt beavest asontiv gniaisiqmeo edt vet Laexesdt vitsode
ted yaned yeuor red bebnaweb bas cam Delt tems vem tasbreteb
“pene se 2k to seeq yas aletde.ot eidaay gaw
ity ; : roe a git ieee, Ey eae SP eee ae
wort yenom edt tag orf tant hett imbe tasbasteb ext seh
ton dtin dined edt of ence gaived xe ont br ‘aabntesqros od
sgetrren baseqeta bed of tails betneb tud ea0 i iatoiin Shit tot
tad ef09,due tadt uo not csowted bite eee ‘shale tadt zo
, ‘galstalqnos edt blot od tot beititesd ed « crettine 00 Sit mo
“dattb tte s at tuorstnt Uled o wt oF Retnee od sebas lw
test jeacerug tant ret yonom oi ‘beaaol ote tedt jxofrsq
ae oizsg dutzh }tbe sip at seotszat ¥ iad 8 #dguod od :
0 | bentstde bad olf dotdw 00,0884 edt .yoaon sift ‘aatvty
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the money from the complaining witness it was to be repaid
by him in six months; that when the soft drink parlor was
closed by the city officials, he lost the $900.00 which he had
invested and that later he saw the complaining witness and told
her of this fact and stated that he would pay her in installe
ments, but that she refused to accept her money in installments
and that he hés paid her nothing, He further testified that
when he first met the complaining witness he was married, but
was not living with his wife, and that at the time of the
trial his wife had obtained a divorce from him, There were
witnesses who testified in bebalf of the defendent tending
to corroborate his version of the matter, The testimony of
the complaining witness was also corroborated by other witnesses,
At the conclusion of the case the court found the defendant
guilty and sentenced him as above stateda
We regret that under the law, we are compelled
to reverse the judgment beceuse of a fatal variance between
the indictment and the evidence, The indictment charges
that the defendant obtained the money of Mary Urbanski,
while the evidence shows that the complaining witness was
Mary Rapenski, This is fatal. People v. Novotny, 305 I1l.
549, In that case the court said (p.556) "The person whose
money was charged to have been obtained was Rapan Manian,
but the evidence showed his name to be Neananianiany In
indictments for offenses against the persons or property of
individuals the Ohristian and surnames of the parties injured
must be stated if known, and the name stated must be either
the real'name of the party injured or that by which he is
usually known; (Aldrich v. People, 225 Iil. 610; Sykes v.
People, 132 id, 32; Willis v. People, 1 Scam, 399;) ond it is
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to ytrogqotq re aaoaxeg ett teatege eeenstto rot etnomtotbat
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—4—
eseential that the name of the party injured should be proved
as laid, There is no eonflict of authority on this point,
Davis v. People, 19 I11. 74; Penrod v. People, 89 id. 150;
MeGary V» People, 45 N.Y.153.) ‘fhe People's answer to this
objection is, that when the evidence was introduced at the
trial the plaintiff in error did not object to it and did
not point out any variance, The same question arose in
People v. Smith, 268 Ill. 502, and it was held that the
case presented nét a question of variance but of failure
of proof; that the indictment charged a crime against a
certain person and the proof failed to show it, but did show
the crime, if any, wan against another person. While the |
offense of obtaining money by means of the confidences game
is punished as a public crime, the particular offense charged
is always the obtaining of the property of some individual,
whose name therefore becomes material to the description of
the offense as stated in the cases cited. Being a material
averment it is necessary to be proved, and « failure to prove
it is not a mere variance but a fatal lack of evidenve to prove
the crime charged, There is here no question of idem gonans,"
In the instant case there was no point made on the trial that
the proof varied from the indictment, but under the doctrine
announced in the Novotny case, the judgment cannot stand. Mery
Rapenski, the complaining witness, from whom the defendant
fraudulently obtained the money, is not the same as Mary
Urbanski as alleged in the indictment. lor is Urbanski and
Rapenski idem sonans.
We are yhable to wnderstand why the count is the
indictment, charging that the defendant had obtained money
by means of the confidence game was nolled; nor why the
«=~
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a ree Tr eT ear ae Se
‘bib Ane $4 of ¥oStdo gon h4b reve mt Beteniata Site’ Tabet
; ne at ‘se0ts notteeup suse sit ,ooatiray ye tuo ‘thtog 408
eae eee bred aw Fi ona (kod Virir Oas jue tag” wh Gs
etyltst to tud sonstrav to aditeenp « tom badasucrg’ eble
‘g tentegs omits 6 hoptsdo tnemtethat odt tant jrootg to
woe kb tid 2 Woda oF beTRAY Yoota Sid bad aoeteq mtatrao
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ae Gaey BeonebITno edt Yo anson YW veaba yntathtco to senotto
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- faubivibet emes be ytraqoet¢ ede To yatrletdo site ‘eyewis et
‘te Hoitqizeash eff of {sirs¥am asmooed ototered? ewan eeodw
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: it at ti oat it banter of tau as ot
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felony was waived, because the evidence is clear that the
defendant awindled the complaining witness out of her money
and should be in the penitentiary and not in the House of
Correction. Our Supreme Court in the case of People v,.
Gallowich, 283 Ill. 360, defined confidence game to be any
swindling operation in which advantage is taken of the cone
fidence repored by the victim in the swindler, and the facts
in the instant case bring it clearly within that definition,
For the error above mentioned the judament of the
Criminal» Court of Cook Gounty is reversed and the cause
remanded,
REVERSED AND REMANDED.
THOMSON, J, CONCURS
TAYLOR, P,J. DISSENTE.
8
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40 = 31152
PEOPLE OF THE STATE OF ILLINOIS,
)
Defendants in Error,
ERROR TO
Va ) CRIMINAL COURT,
)
COOK GOUNTY.
JOHN BYRUD AND MILTON D. LIPSHUTE,
Plaintiffs in Error,
Opinion filed March 2, 1927.
ER. JUSTICE O'CONNOR delivered the opinion of
the court,
“)
— ec
¢ }
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de
The defendants and one Henry Schmidt were indicted
<3
by the grand jury of Cook County, charged with the erime of
conspiracy to obtain $1200.00 of the money of the Royal Drug
Company, & corporation, by means of false pretenses and by
means of the confidence game, Schmidt pleaded guilty, Byrud
and Lipshute entered a plea of not guilty, Byrud and Lipschute
were tried and the jury returned a verdict finding them guilty
of conspiracy as charged in the indictment and fixed their
punishment at imprisonment in the penitentiary and 2 fine of
$1,000,00 each, The day after the verdi ct Schmidt was placed
on probation, The court overruled defendants! motion for 2
new trial and sentenced them te one year in the penitentiary
and ordered that the $1,000.00 fine imposed by the jury be
worked out in the house of correction at the rate of $1.50 per
day.
It appears from the ewidence that the defendants and
Schmidt conspired together to make Bromo Quinine pills in
imitation of pills made by the Paris Medicine Company of St,
Louis, Mo., which latter pills had been so}d for a great many
Mee -
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yiieg selt antheit gether a Beata ox Prot wie por botue een
tied: bazit has taemtegiai sd mi begtado as qwarkqeacs to
to ealt s bas yisitastinsg edt ai tasegoaitqmt te tromdatase
heosta Sew #hindos fo Brey odt «etts yab 2s? done. 00,000.58
# ret aotiom tatnshasteh belutteve txces |dt ortadong 0
yraitaetinsy edt ci macy seo ot medd poonst nee tos fattt won
ed yrrt edt yd Seeaqmt omit 00,000 1% edt pede betebse bra
teq 08.13 %o eter adit ts soivesstoo te seuod add me ess
fe tye
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bas adarhastes od dads soasbies eas wet avascae a oe
ai ailig eetatug parcial Stan id xedsegot bextenmer ‘*tadoe
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years and were considered by the public te have medicinal
merit, The scheme or conspiracy of the defendsnts and
Schmidt was to palm off on the public imitation pills for
the genuine which could be made and sold much cheaper than
the pills of the Paris Medicine Company and it was their
desire or intention te make pills that were of no value
and to swindle the public. in carrying out their purpose
the defendants and Schmidt had a die made, lettered the same
as the pills of the Paris liedicine Company were labeled,
From another person they had certain engraving work done
and from a third they had printing, labels and other matter
made, all of which was for the purpose of s0 labeling and
pecking their fraudulent pills as to make the public believe
they were the genuine article. They then manufactured their
fraudulent pills and sold several gross of them to the Royal
Drug Company, a wholesale drug concern doing business in
Ghicago, for €1200,00. This was much cheaper than the
genuine article could be purchased for, So that they might
be able to sell their fruaudient pilis and make it appear
that they were apparently genuine, they went to ilwaukee,
wrapped up @ bundle of newspapers and had them shipped to
Chicago, and to show the Royal Drug Company that they had
purchased the pills, they exhibited the bills of lading
showing that they had been shipped to the defendants by the
Majestic Drug Company of Milwaukee,
Sometime later the Paris Medicine Company, who
made the genuine pills learned eof the false product and
employed the Burne Detective Agency to investigate the
matter, This was done by the detective agency, whose
employes worked in conjunction with the State's Attorney's
Ge
os Soh
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has atesbasteb adt lo Yoatiqancs to saedoe od > item
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ease sie betetiet ,ebsm sib a bai thins’ bas estasbastaa sat
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veites vedte bes aledei ,yatinizvg Sed yedt Sridt 6 ‘ont ines
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office, When the defendants and Schmidt were onfronted
with the evidence, they made statement in the State's Attorney's
office before Assistant State's Attormeys,police officers,
representatives of the detective agency and others, confessing
their guilt. As stated, Schmidt pleaded guilty and testified
for the state, Neither of the defendants testified, nor was
any evidence offered on their behalf, The jury were instructed
and afterwards returned their verdict ag abeve mentioned,
The state offered some thirty odd exhibits such as the die,
the engraving and printing of labels, etc, but none of them
are shown by the bill of exceptions,
The defendants contend that the court erred in not
permitting them to show that the statements or confessions
made by them were obtained through promises of immunity.
The record discloses that when the witness Allen, a shorthand
reporter, who hed taken the confessions made by the defendants
in the State's Attorney's office, was testifying for the state,
counsel for the defendants interposed an objection, and the
court and counsel then went into chambers and counsel for
the Gefendants told the court that one McKee, who was an
detective employed by the Burns Detéebive Agency in the
matter had told the defendants that if they would tell all
they knew in the matter, they would not be prosecuted, be-
cause the only object wae to prevent the further sale of the
spurious pills; and that relying upon such promise of immunity
the defendants made the confessions. The court held that
MeKee had no authority to promise such immunity and would
not permit the defendants to go into that question, and they
excepted to the ruling of the courte Allen did not testify
but the state called Frank G Marshall, an attorney employed
ie
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—4~
by the Paris Medicine Company, who had been assisting in
investigating and preparing the evidence in the case. He
testified, inter alia that he was present at the time the
defendants confessed and that there was no promise of im
munity made; that the assistant state's attorney, who wes
in charge of the matter informed the defendants that they
could make a statement or not as they chose, but that ifthey
did make a statement it would be used against them, On
cross-examination of this witness counsel ‘for the defendant
again sought to show that MeKee of the detective agency
had promised the defendants that if they confessed there
would be no prosecution, but the court upon objection refused
to permit him to question the witness on this subject. Gounsel
for the defendant then asked the court to adjourn to chambers,
but this was refused and the court shortly thereafter adjourned
until the afternoon, When the court again was convened, the
court and counsel for the defendants then stated that he wished
to show by q,,estions put to Marshall and to the Assistant
State's attorpey, who had conducted the questioning of the
defendants when they made their confession that WcKeey, the
detective, who had charge of the investigation of the matter
for the Paris Medicine Company, had promised immunity, to the
defendants, Theccourt agein overruled counsel and afterwards
there was considerable discussion between the court and counsel
for the defendants, during which we think the court made
remarks that were unwarranted and should not have been made,
We are also of the opinion that the court erred in not per
mitting counsel for the defendant to show by cross~examination
of the witnesses that licKee had made promises of immunity,
as stated, for the reason that McKee had been investigating the
sob.
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20 post teaiaga beau od biveov té dnametete @ siam bib
taebasteb oii Ver Iesists adsntiw £49 to aedéagtuexe-pact
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s1ed$ hosestsoo yed? ti tard atashasteb ed? heedmotg dad
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matter and gathered the evidence, and the defendants might
well have thought that MeKee was speaking with authority,
and if there were any doubt of the guilt of the defendants,
these errors would warrant a reversal of the judgment.
But from a consideration of 21] the evidence in the record,
the guilt of the defendants is so clear that we think the
verdict of the jury ought not to be disturbed, Of course,
it is the law that if a confession is made with promise
of immunity, it is inadmissible, However, the witness
Marshall for the state and the Assistant State's Attorney,
to whom the confessions were made, both testified that there
Was no promise of immunity, but on the contrary, the def end=
ants were expressly advised that they need not make a state~
ment,but that if they did, it would be used against them,
The confessioys made by the defendants were taken down in shorte
hand by @ court reporter and transcribed, but they were not
offered in evidence, But what took place at the time was
testified to by witnesses and counsel for the defendants
states that this was error, because if the confessions were
inadmissible; it would be the written confession, This is
Obviously unsound, Any one could testify to whet was said
and done at the time.
The defendants further contend that the state
should have been required to elect under which count of the
indictment it would proceed, A motion of the defendants’
to this effect was made at the close of the case and denied,
and we think the ruling was entirely proper, because under
the law, a count cherging conspiracy to obtain money by
false pretenses is properly joined with a count charging
conspiracy to obtain the same money by means of the confidence
aie
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cititedtus sitive getdseqe saw selok tad? tdguedt: eved: ffew
etaabesteb st to dling edd te dduch wus stem eres 34 baw
stimagist edd to iseveves & faetsae hive atone. aed.
tees edt ai cosebiva edd [is to meldexabiegane, & moth tuG,
odd dnkdt oa tad aslo cc at stashastob add te. slug eds;
wate YO. bedumtels ed af tea sdgue ysut edt, to teLbzey,
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asengie od} ytoveseH .oidieeiabext «fd _—tiaummt, to
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< yatedd fepiess boow ed Slvow ti bid yoss ‘td tadd dud toes
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tox etos yt fed bedive enert Se essroget daués & ed baad
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semis odd anne baal
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- edt to duseo totde saben goofs cz. borings: aead. = i :
2 ae reps
legasbaateb edt to molten A sheen ose: Sivor ef tem
.beineb bas ea0 ad ‘te ‘sa0io ode ts shan ew toetis ha og of
2 reba ‘sausosd sroqorg oritne ass gation oa anes } om. bas
es aon ates of wartgnaos aaigrede ta100 * aeak oe
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neta redo 3 aw00 s ghe Rant % yAreqe
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6
game. People v. Warfield, 261 Til. 293, The state's case
shows that both counts were based on the same fact » that
the defendants had obtained $1200,00 from the Royal Drug
Company.
A further point is made that the court erred in
permitting Schmidt, who was jointly indicted with the two
defendants to testify, because Schmidt was permitted to
sit in the court room during theprogress of the trial, al-
though a rule had been entered excluding all of the witness~
es, and for the further reason that Schmidtis name was not
given to the defendants as one who would be called by the
people, We think the matter was entirely within the dise
creéion of the court. While it wauld have been proper
practice to have excluded Schmidt from the court room, yet
it appears that counselfor the defendants must have known
that when Schmidt entered a plea of guilty, he would probably
be called as a witness for the State, but they made no objec=
tion when they saw him sitting in the court room, We think
the defendants were not prejudiced by the action of the trial
court. It is further contended that the court erred in not
permitting counsel for the defendant to crose-examine Schmidt
in an endeavor to elicit fxom him the fact that he had been
promised immunity. This witness testified on direct-examina=
tion that he had made a statement in the State's Attorney's
office at the time the statements or confessions were made
by the two defendants and after testifying at considerable
length, both on direct and cross©examination, he testified
On crose-examination he had never received any promises of im-
munity or reward, He was then asked: "Q. Do you expect to
“
enso eletsts ear .feh . ffl £6R .bieitrary Vv Bggosg J emsg
tai? & @oe? Seas edt ao heged orew ataven sPod +aHF awolle
See eyo ott aort er bontetio had @tashastsb ont
oe. eam sini
we 3 rad RtEF BSR Sho esate
at perre }ru00 ettt fade absi a? saree, ‘sodgut, A
Le Aida eat
owt ade gee hetotbai yitato, see © se pneaie? Se #3 tare
ag bossi stoq Bs thimcae Sax 209d <Yite ag? ot _stasbasteb
“Ls iets oft 2, saomBoTTOEf aaree & Boor F100 oad at é 8
y ee €= Se si? Chee
- 2 ifs zs bonedes asec bad
aneadiw oda 2 grits i slut 8 rf quot
ton oor ome ‘elsbindoe sent soasez rodeeut out ret oe os
z baat
cit xe beflso ea bivow ode eae a3 ‘ad nabaeted odd ot aovig
. : ee RS Sg 2 ink .
mete 9 az alagiw qisr ifs 22 xe¢tan edt Acide at is
Bs eee
-sgoug, need oved bisoe ti eliae #2009 oat te Bren ake
tee e007 $2500 od i mort shinee bobs ioxe ors, os tere
awond svsd Pec etaabesich edt xe Igcnwes tend Lae + ok
yidaderg bivew sai ete Ligg te slg 8 borod.ag tbtaioa aodte fe w Sade
soap do oa shea ved? tad cot S78 edd tol sseatie & Be hellso ed
fate oF shoes FxLGO ads ai guittiv ew 428 oat mode 10.
fated adt te saltos eit ee beotbutenq ton EOS at asa teh. eds
toa si Lerte t1v09 ad? tas Sebaetace redtayt et At: gat 8
thimdo® entmaxs~geors of gachnoteb edt x02 fesnuoo, , sow
aesd bad ed tect tot add aid mez® tin tts of rovsebae| a8 st
seul assexgoerih ae hoititest seant tx eiet atihovmant bea inerq
e'yanroseé eee te etd ai toometsts 6 shan bei ef tady wate
Fac
shes Siow eaolsestnos td et nomos ate ott omit bate’ te a itt
| Sidarobienee sagatytitest retts bas stachactes ont ontt a
bailivess ed .goitssiaskeeaceto Sus toerts se god e308
=ai to genimotg ‘Waa bevisost zeven bad sd notdaainsxemasore “ne
ot deaqxe §0¢ 08. 28" y. hedes aadt ssw sh sbtawer ro yee
ae Ag eee ‘ shi TS bs ve aa PS me Ra: rhein
go to the penitentiary in this case?" This was objected
te and the objection sustained, ‘the court stating that
it did not make any difference since the witness had
pleaded guilty, We think the court should have overruled
the objection and pornitted the Witness to answer, because
the witness was a confessed swindler and the defendanta
‘were entitled to bring out any fact tending to show that
he expected not to bepunished as a reward for testifying
for the state, However, in view of the fact that the
guilt of the defendants appears beyond all reasonable
doubt, we think the error would not warrant us in disturb=
ing the judgment,
A further poigt is made that the court erred in
allowing exhibits to be taken by the jury while they were
considering their verdict. We have no means of telling
whether the exhibits were taken by the jury. The record
is silent on thie subject. In the trial of criminal cases
the common law rule applies, which permits the court in its
discretion to allow the jury to take with then, upon their
retirement, such «papers and documents introduced in evidence
as in his sound discretion he shall think proper. Dunn v%
People, 172 Ill, 582-588; Cook v. People, 231 Tl. 5-15.
In the Dunn case the court after referring to
Sec. 8 of Division 13 of the Criminal Code, which provides
that "all trials for criminal offenses shall be conducted
according to the course of the common law, except when the
Criminal Code points out a different mode, and the rules of
evidenes of the common law shall also be binding upon all
courts end juries in criminal cases except as otherwise pro-
bsioetde sev eicT “Tease eidt af yettastiagg edt of og
geal gaitern dunce adi ,bosistem no igespde edt bas ot
bed-geandde ac? sogie scnexethib yas saem tom BLb.ot
befetreve avsd blvods dauco off dnint oF .yefieg bebseiq
ease 3d towers os eeand ie ait pete iareg baw aoisoe,do edt
etasbasteb adt bas tefbaive besestaco « ane saantiv ont
gant wode of guthaet fost yne tue gnitd ee bottitas oxen
garytisser TOL hiswet © es bedatanced oF jon betooaxe ‘od
aad tad? fost ent to wety at. cteraued “svete edt 20k
- @fdeneenes Ifs bacvsd erascas et aabasteb edd to ‘thing
“exude st ex ¢naview fon bivew torts sat isids ow (edieb
taemabt se aa
at bewze tasoo edt tadt sham ei tgtoy sedtuwt Ae, dove
etow yout elidw yuh ed? yd medet od ef abidddze wills
gailied to sasom os ova of ,tolitey siedt, gairal
bxoost esf .yaut od yt sedst even at idtdxe. on. r9d¢ade
sense fanimize to {site odt ai .toetdve etd? go taeda et
ati ai dxuon odd etimteg tide .2eilegs eius wel mommoo.odt
thedt aequ .ued? ditw ste? of yxaj 94¢ weLis. of api¢etoesh
sonebive at heosboutal atmemvood bas sregeqg dowe. tasmextion
a? Boe -.tegqerqg daidt {fede ed noliotoagh. basoe, eid nh es
“eGin@ oft S88 aafvoey «7 tees 888-898. 41 £2 srr gedgoes
a4 °3 ‘galtzoler t3d te x00 ome seao pee oat at
“sebévorq do kitw 42100 Jeakatsd edd to Bf noletvig to 8 a
betoubaoo od fLede asnastto Isainige rot eletié ctu se
esiy aode dqeoxe eel 180 muneo PY te ‘Br 200 | odd of gatbroooe
“te ae fun ed? bas ~obor ‘tasvertib e tuo ed ator sbeb ath.
tie gongs harem ad oats Hades wal shemesgahe ode ‘le
%
—e~
Vided by law," said (p.588) "Mothing in the said division
of the Griminal Code purports to direct what shall be taken
by the jury from the bar of the court. The common law rule
in criminal cases was, that the jury, when they retired to
deliberate on their verdict, should take with them such books
and papers which had been produced in evidence as the judge
presiding should direct." In the instant case, as stated, the
record is silent as to whether the exhibits were actually
taken by the jury, but even if they were, no objection was
made by counsel for the defendants, but on the contrary
what was done in this regard seems to have met with his
approval,,and he is in ne position to now raise the point
for the first time. Moreover, we think it was entirely
proper to permit the exhibits to be taken by the jury. They
were labels, dies, printing matter, etc, and it was proper
that the jury should consider them in arriving at their
verdict, In this connection, however, the defendant argues
that the exhibits were not read to the jury during the progress
of the trial and that the law requires sll evidence to be
presented in open court, I, support of their contention, the
case of People v. Dlark 301 I11, 428 is cited, in that case
there appears to have been grave doubt in the court's mind
as to the guilt of Clark, Moreover, the exhibits ther intro-
duced in evidence and which were taken to the jury room were
now shown to the jury as counsel for the defendant insisted
he had a right to do, nor was counsel there permitted to
exhibit them to the jury.
In the instant case the guilt of the defendants
is clear, No objection was made on the trial that the
exhibits had not been read or shown to the jury, Ho complaint
sotelvib Bise od? at gaidso@’ (888.q) Biaa “mal Yd bobiv
aeied od Fisde tedw foorks of @fcoqtmy shed feainlad sd? to
eivoz wef Howtos sc tives edt to tad sdf mor¥ yrut edd yd
ot Betivet ydt wode .yrut add tedd jec® eodeo Leatmico at
asco’ dove rodt dtiw edad bidode folbrev ciodd #6 edanediieb
eghut sat BS soadhive nt Beophere weed bad fobdw execs bas
edi ,bsista ez ,owso tasfani edt ql 4 *.soesid bisode galblieorq
qicuies eréw atidindve edt sedtodw of ae ‘taolie ‘et ‘breoet
eaw aoigeside ox yoree voit BE weve dud eet out I usist
yisitace edd ge tud .8tachastsb ede 108 {eeaseo yd oban
eid dtiw fom oved of emsee Ba Tane% eit mt ‘aaob aaw dade
taies eft oaist wos ot acitinoq on af et od has, fs worden
Vissitne sev $i sinidd of ,sevyoetoR .oméd. tent? ede tot
yout... syle edd ys assed ad ot stididxe ody timxeg of teqo7q,
reqorg eat Ji bus .ofe .zetton yaiinirg .apkb~sfedsl exes
thods ts gaivicxs al mods teblenoo bivodta .qaut eds dad.
eeugis tashasish 6a? ,tevewe ,acitessaeo aifid. al. atosbzey
sestgorg est gaisah yxut off oc Best ton mew atididze edt jadd.
od of sousbive ile sexivps wai oft ésdt bas faint ed | to
ois. ~<moigaedace. tiess to troqgua x-f st F108 sage al. 027 f a
caso tedt al ..betie et SSA .{f% [08_sixagy -7_sinet 20 een
baie aru efit ai dduob every ated evel of eteaqaa 9 on
~ortal eds atididxe eat ,rsveero¥ ,21eiD to #iing adt os 26
w9F BOOT eret. edt of neva? stax daide ad sonebive at beoub .
betetent tasbastoh edt xok feaaveo as est ote ‘of caois wos
PR fe
ot bettimreq ered Sensusco asw son eh ot Sulg kx s bad oi
staabasteh ede to tiling edt ¢eso dasteni edt ia snmeh ees
edt tad? feivd ed? ao abeu sew meitestde of .,xesfo at
taisiquco of .qms, sd? of swode 10 bast ased fon bad atididxs
Dew
was made that the defendants were not permitted by their
counsel to exhibit them to the jury, but the record dise
closes thet the exhibits were @mnsidered by counsel for
the defendants, and no suggestion was made to the contrary
until the brief was filed on behalf of the defendants in
this court, We are clearly of the opinion that the Clark
case is not in point and there was no error prejudicial to
the defendants of which they can complain,
A further complaint is made to the giving of
peoples! instruction No, 5 and the refusing of defendants
instruction No. 4. The instructions are not numbered in
the abstract or in the record and if they are counted it will
be found that the argument of the defendants does not fit
the numbers of the instructioye designated by their counsel,
Moreover, the defendants point out neo specific object ion
to the given instruction complained of, But, even if we
take counsel's contentions as stated in their brief and
apply them to the instruction that he appears to have in
mind, we think there is no merit in them, nor de we think
there is any merit in the contention of counsel for the
defendants to the effect that the argument of one of the
Assistant State's Attorneys was improper. A reading of
the entire argu:ent, which is in the record, leaves no doubt
in our minds that it is free from prejudicial error,
The further point is made that the court erred in
not striking the bill of particulars filed by the people
from the files and in not granting the defendants a continuance,
In support of the contention that the bill of particulars
a
“xiods ee beds taveg fea Stee atmetcetob ‘bate’ ¢edd Star ito
msif breoet add dud eres ett of wade sidkdas’ oF fonaves
sol [seauo vd betebisna erew eFididxe elt tact seacte
yiettade sd? od shew 2b noftasggoe om bac Yerakabtey emt
‘mf eémabasteh adé Yo tisded so betrt ssw Yokad sit Inti
ase odd gadf wointyo eff te yitasio ore eM * {Sure ate
et fete toutor ravts Of sow ereng emt tubo at ton ak | omgp
"Sets iemce aso ved? de ide mbes y ips:
“se EOL et
te. aeivig. oat of Shem af fatateneo sadist
edastastes te gaierien eat cas & 408 aoitoustant
te. ersdnivar tos sts saoitowstaci ect of Pus i é
if ie #2 Setaxog era yond. bz coat breoss edt at *@)
YS eenbias
Be
mddnbincetbionts andes #tn ataaboesed. ae exevoor
oe RE wave gins 30 Beatsiquoe picid ryMicied
oe a Set
Aotds on ob som quads a thase om at scot 1 Aatit ow be
agit ret feagueo te so itued m0. ome, a estes = # onedt
e 26 eno io taeaugte ont seas dostie odt ote 2 af aches}
cee . Le gxthact.a . stegotgal as7 eysarosia siatere tmedateaa
(#@y0 of sevSei ,hxoost eA7 ai el doldy ate ougts a ng
Sofog .« wente, talotheterg mort aatt, af an pat re —
al berze ruc edd fed? Shas oF talog todtent edt d od
aficoag edt yi BeLit ersiveitrsy to itis aes é | ee aS.
ssaxecethanisisteancnt eal aiitteaston eh tne. eats dk oa
eiaivsivacg Yo (iid edt ted9aotsastaco at at
eet Se BAe seed ge bag 7 i Ghee
should have been stricken, counsel say that the record
discloses that the bill of particulars should have been
filed on May 18, 1925, but that it was not filed until
June 11, 1925, and therefore, not being in accordance
with the order of court, it shovid have been stricken,
and for the further reeson that it did not acquaint
the defendents with the charges which they would have to s¢et,
Upon a careful consideration ofthe record there can be no
doubt that the defendants were fully aware of the charge
that was to be made against them and the evidence that
would be adduced, in support thereof, They had made statee
ments or confessions and they knew that Schmidt, their
eO-conspirator, had done likewise and heard that he had
confessed, all of the confessions having been made at
the same time and before the same parties, it clearly
appears that they were in no way prejudicied on account
of the late filing of the bill of partisulars or on account
of any of its insufficiencies. Nor was there any error in
the ruling of the court denying the defendants a continuance,
This contention is baged on the fact that the bill of particulars
was not filed at the time it was ordered that it be done
and counsel for the defendants say that they were not pre=
pared for trial on account of the delay in filing it; that
it was not filed until a few days before the case was
ordered to trial; and that this is shown by the affidavits
filed by the defendants in support of their motion for 6 new
triel., The record discloses that on the motion for a new
trial, the defendants were represented by counsel other than
those who appeared for them on the trial, and each of the defend-
ants made an affidavit in support of a new trial both of them
being substantially the same, The affidavits set up that
Oi~
brese eat tsd% yes fosaves ,sedoitia aged erad Sivode
‘need sved bivods aceinoitieq To iid edd a acts eseoioath
fidey ball toa aew 2F edt tud .eser “81 sk 20 ‘bolt?
eomabroces at gaisd ten «sretereds bas B82 olf envi
gteisigte noad eved bfroda ti ,ttu0 To ‘Tebto ‘onle agin
fatespos tox 61h ¥t Sad? aoaser se ddcat ort oy bas
eteae6s gved bloow vont dotiw eeguars edt dtiw ‘admabasteb ‘edt
ox ef and sxedt Steset s@te moivetoh lanes Ivtetso s noqt
egzaio siz te atas eink ore" adastce Leb sat Feds “Faisob
dant sonsbive sit bas wadt taniags chan od of ssw dad?
tate shan bad yer? stosredt sroqawe at ,beogdbhe o bison
tied? ,gdimdod t+ads wend yede bas age tasetaoo 32. ataen
bad ed dadi brsed baw aeiwedif aaeb pad ,tot#727aa00~00
ts sbex seed gnivad anc tasstaoo 9m te J, gbosas taco
“ melo n inthe at ese oat oroted bas Sak (Sa8e, vm
‘tawooos 0 oeio thet org ue on mi grew yodd tadt .
truo0s BO TO ete ie it ae to fie edd to gmetst tet oat %
at ore yas exo dd ase oH 80 eas to I twemt eth to. yan to.
econsunttneo 4 at anbas tab og gaiyash fives sat Xe gariet pas.
sialvo it 1aq to Eitd ody tadt tost sd? ao beasd at sotimetace aie.
such ed ti oat hersbre ase fi omit od¢ ta boll? tom eee
“org tes stor yout tedt Use adaashacteb adt rot _fegsuseo bas.
: tacit gee gat fit at welled ode te sayocoe se feixt t03, beram,
een e385 odd oxotad eysh wet s fives belll tom ted rea
“ea tvabl te sdg vd awoda ai aide ace bas ; eisizt ot. borebre,
wen 8 tot nottom ttedt to évecque at etxabackab odt i baitt
wea @ wi soliton edt no tats astoleeis SroosT SAT oieist
“0 tedto Lssqvoo yd Detapeerqet sisw soastasted ert feted”
~broleb edé 20 dose bas _istit-edd aemeds rot botseq gs odw eeodd
mods Yo died Laie? wen @ Ledtogqve at Sivahttta as sb ddd’
tas Gs tee etivebitts act ya odd VWistiastedus gaied
-ll=
they relied uwoon their cowmesel, who advised them that the
eourt had entered a rule upon the state to file a bill
of particulars and that it was not filed until long after
the time had expired; that it was not filed until about
dune 12, 1925, and when thie was learned the defendants
were advised by their counse) that it would be unnecessary
to be ready for trial on Jume 15th when the case was set
for trial; thet relying upon their counsel in this regard,
they did not prepare for trial and were not prepared when the
ease, over their objection, went te trial on June 15th;
that at the time they were arrested in April, 1925, an
Assistant State's Attorney, @ representative of the Paris
Medicine Company, an attorney for the Burne Betective .
Agency and a police officer came to the defendant Byrud's
Plece of business and informed him that they wanted him at
the State's Attorney's office; thet he went with them
and was kept thereumtil 8:00 P.M. on the same day and was
mot allowed to communicate with counsel or any oné else;
that he was questioned relative to his knowledge of the
commigsion of the crime in question; that he was told by
the Assistant State's Attorney that if he would tell 211 that
he knew no harm would come to him; thet he was alse told
the same thing by the other parties who had him in custody;
that he refused to and did not admit his guilt of any crime;
that thereupon the Assistant State's Attomes ordered the
defendants taken to the police station, which was done end
they were held without booking or warrant; that they were
not permitted to talk or communicate with any persona; that
they were then taken in a patrol wagon and held until ten
o'clock the next day without food or drink; thet they then
Obtained a release on bond and returned to their places
edt Sune walt BeaivOe of (Leenvés Shedd moqu better vod
[iis 2 eft oF state oe aeqy efor o bored bad $2000
notte goof Lites befit tom aaw of tadd bat eratvoldzag to
jucds Liine Bote? gon eaw #f dads phox tga bal onlt “edi
sktsbooted od¢ Bomteol eaw el dy aac bas aber 2bt osust
yissnesseas ef Gloow #2 ted¢ Teenuvo stad? yd bealvbs exsw
ton eae eco odt cade ddBL sau, ao isizt «ek yboor od of
Stage: sidt nt [semvoo ties? aoqs gatyiot snald “platre 20%
e437 astw Setecare tex atew baa Ietis tet oteger¢ ten bib “weds
1838 anil. mo isitt et gaew yroltostde tiede reve “bes9
az <286L piiwqa af betmetta sre yadt emit ode te ‘tee
ete? oat to avitatconexqer é eqearesta stedaee suadeioea
nea elt eth
avigoatatt ented ody 19% yaatoite me eeslag0d onto thew
Pesos
athertye deabnetet od oF 9m8e “‘geottte ao ikog ‘s bas wonega
ea 3: PS ty oh
te wid bedmex youl} tadt wid Bewretat bes cesatecd Yo eoalq
wedd dtic gaew at fait ‘geadtio a! yemrortA ‘etetase ‘ot
sae bas yeh sene 3d? #0 ted 6078 Ligquoxsdd ted ‘ear kg
penle ene yss te feenvae fiw etseiammsco of ‘bewolis tom er
adit te anbeivont aid of ovivetss honotsse0s eae ‘od tat
yd Bot ose sé sade acideaus ai scizo ad te pelsetanes
sad If¢ Ifeg btwow od TE ¢ed¥ YomrosdsA wt etate tustetend oct
“hitos Wate aw bd sade Bld of tute bicow mxad on wed od
rietdecis ni ith bei it Vnévied adll ih @ Glde GS
gentze yas to Fiiwg etd ithe don bid bes of beautor od | pads
eat hevebto Yearoiss elernes Saetatess, ait soqusredi ? is ast
‘bas ‘enok ace ds & bo etoldate sot log eng ot aoias starbes
exe8 wou tede jdaeris 2 ‘gatsood toot = bied een en
taut jroereq an ateie ote0 amon x0 ‘fat ot ‘pedetexeg soa
“aed Lites bled baa | sega ‘foxtsq 4 at asist sod exo xo0 yedt
“ aot wont ‘ted plate petoglon thw yab 3 éxon od¢ fo0lev6
“ asenig sted? ed bannr hantagos bal | baod mo pe hg he ae
at
-12-
of business; thet about three o'clock in the afternoon of the
same day the Assistant State's Attorney and other parties
and a detective from the Burns Detective Agency again
went to the defendsnt Byrud's place of business; that the
detective learned that the defendant Byrud belonged to the
Magsonie Order and told Byrud that if he would tell all the
truth about what had taken place, no harm would come to
him and he woubd not be prosecuted; that thereupon Byrud
stated that if they would do the same for the defendant
Lipshute, he would make a full statement of all he knew
in regard to the matter; that the detective then stated that
both the defendants would be given immunity and would not be
prosecuted; that efterwards they met the detective as per
appointment at six o'oloek in the afternoon then they hed
their first meal in two daya; that the defendants then went
to the offices of the detective azency and talked over the
matter, and that defendants told MeKee, the detective,
frankly and without reservation all that they knew of said
cause, and that afterfardse in accordance with the agreement
with MeKee, on the next morning, they went to the State's
Attorney's office and then repeated their stories there, which
was taken down by a stenographer; that thie was Gaturday
and that the Assistant State's Attormey told them to return
Monday end sign the statements made by them; that they did
return on Monday but refused to sig the statements because
¢hey did not contain any promises of immunity, snd thereupon
the Assistant State's Attorney told them that he did not care
whether they signed them or not and they then left. The
affidavits further set up that they were willing upon the
trial to relate 211 the facts contained in the effidavits
and sougkt to do so throvgh their counsel, but that the court
wh E~
edt to mponredts ed¢ at dseio'e serie guede tad? jeamatend, to
aebits teiie bas yeatodtA gtatare taatchesd odd yeh omae
xisge yoooss evitectsd emu att mor? eviteeteh o bre
et dad yeaenitaud to conta sthewtya tachosteh off of taew
oid of begnofed boty tuchnetabh edt tart Seatael evitoatab
av? Ifa tiet binew o4 Tt gad? Awtes biet daw t9btO etmoneM
et Smoo bivew mead om gseeiq sedet bad tady ¢uods dtast
bvave scqworsd? tadt phsdmoeeesg ed ton Sdvow ed One mid
fnebnstsd sit rot emee edt eb S trow yods TE dedt. hetate
—'swraged od Lis te tagmedsde Lint « elem bloow ed.,.otudegia
gad? Sotsts asdt evidgastab edt tad? qrettem edt ot Buaget at
ed ton Sivew tae yYtidinmenst mevig ed Bivew atashostsh ods . il
rey es avitseted edt tox yout ebtewretts tadt ghetuc
bed qedt asd -ecoavetle act of deofo'e aia te tra
énow asd etachastet oft tad. geyed. owe. oh Laem. tout siods
ett seve bodist fas Yo 29Es arétoeieb-sdt te coq tite pdt ot
2avitsets oft soto bfet atashzeteb ‘todd bos. xettan
bise Yo wend yest tedt ffs noitsvreset tucdtéw bas yldaast
tapaerhs odd ctiw sonebtosoe si abratwedts tedt pas. .2Engo
etetat® od? od tus yedt «gsioton dsc ed? mo gsoloMddiw
coldw ,otedt asixetes «ied? bedseqot nod? bar geltto glysstorga
‘aebivtel ass eld? gadd yredqangorete « yd mwok medet esw
‘Mute ef madd biot Yourotth oleterR sastetoes odd. todd bas
(bah yet ame yood? ye oben afasestats edd apie bas, yebaok
cnssosd staomedsts edd cyte ot besuIes tud Yebaok 80, mutex
Hoquetads bas ,ytinugmi te seaimetg yas aistaeo. Fon bED, ods
orao tom bib od Sedd wedd blot. yormotta etegete. dasteieas edd
ody othe gedd yodt bas goa. 70 modt, bemgte usdd xodtede
edie mows gall liv exew yeas sadt wm a9: reditut gtivabstte
» Sivablitte edd at Sealasaoe atost edg oe EE A
truce, edt —_ aud. logmuao. Mil Ager }
-13-
Tuled that anything thet transpired between them and Hexee
was immaterial, Thies is rather a novel way of securing a new
trial. The defendants were present in open court and should
have then testified or at least an offer should have been
made by their counsel as to what they would testify to end
not wait until they were convicted oni then set up by way of
affidavits the facts that they should have testified to on the
trial, Moreover, we are clearly of the epinion thet these
affidevite, as well as the evidence in the record, shows
the guilt of the two defendants beyond 211 reasonable doubt.
fhere is ne denial of their guilt in these affidevits, but
on the contrary, they admit their guilt, There are a number
of errors in the record and would werrant & reverse] of 2 judge
ment in a criminal case under many circumstances, but we are
of the opinion that that/ane not to be the result here where
there cam be no doubt of the guilt of the defendenfs. People —
¥. Halpin, 276 Til, 365; People v. Stover, 317 Ili. 191;
People vy. Thompson, 321 Ill, 594; People v. Kessler, 324 Ill.
304.
Although the point is not made, we are compelled te
reverse the judgment ani remand the cause so that a proper
judgment may be entered on the verdict. By verdict the de-
fendants were found guilty end their punishment fixed by
the jury at imprisonment in the penitentiary and 2 fine of
$1,000.00, Te sentence should have been an indeterminate
one in the penitentiary end net fixed at one year as wes done,
People v. Graves, 304 Ill. 20; People v. Lloyd, 304 111. 23.
Hor wae the court warranted in adjudging that the fine of
§1,000,00, imposed by the jury om each of the defendants
should be worked out in the House of Gorrection, There is no
=~ i-
estou bas nostd sanded 4 benigenent att patatyaa, fat, vases
won 2 galauoan to you ioren & sedtes a4 Shits,
‘bivade bes FIGS. REGS ai taseetg, O98 ad hao sete
b edt fabs !
aced evad Slzede naFto. ae tenet te 26. belnateot fois eyed
pas of ¥Btect aivew ved, dadw of es fenayeo shes? xd aban
to yew ud qu gee sot bee Regeivace etea ods. Att Ae BoP |
od¢ ng 6¢ BobDides? eved Biueda yedd fait atest ode nena |
saedt javt solmigs e¢ le yfeacle ots o© .zeveatell
sroda ,bisett $08. gh, aoapblve. odd. ae tins 04 FAT ABLIES
stdueb sidszosaer 11s bacyed etanbseteh eed edt i” Bs
gud .etivshiiis ened? 21. tiing tied? te Istee’ :
asdsga ¢ ote sxedt .tiieg stest faba vat ott:
ie see at. oes adit et se aR ee
| g$8h itl TIS zzevese «¥_gigoeg 25h .Lit, OPS. eapapesnil
-fii S58, g8lene8 .¥ Sigess j$e »fii ISS .peegmody. «7 oJ dhe
2 oan
tygaeemty S
“ belfequss ete a7 whee fou wl feioa ed¥ diode in
soqora, 3 tat oe @aveo ext besees Ga dapephet “oct oozovor
9b ode toLbtov “i .oibcer od? no hezetne oe vee ‘Poemgbot
W bextt fmiieiesg tied? bas vel basis sxew edhabdet
“te eait s bas yesktnsd 2n9¢ od nt deemmontrgn! ts ext ot
“ stemterotebat 1 a8 eoed ava bivode sonst ase og “600 8
.enob eae ae tesy ome ri bext? teu bas westéned ture ‘ode ete, ‘en
28 tit 208 108 Lf) B08 pevera ov afc
to exit rome ai bod aertsw ‘bruce Say an
“etasbastob ods to vn ey he ade i Beesant cous
eu an ie
~14-
warrant in the law for such a judgment where the defend
ants are found guilty of conspiracy under Sec, 46 of the
Criminal Code,and the penalty fixed at imprisonment in
the penitentiary and a fine imposed, as was the fact in
the instant case,
For the error in not entering the proper judgment
‘on the verdict, the judguent will be reversed and the cause
remanded to the Oriminal Court of Ceok County with directions
to the court to enter a proper judgment sentencing the de-
fendants on the verdict, This is the proper procedure,
People vs Boer, 262 I11. 152; Wallace v. People, 159 I11.
446; People vs Goleman, 251 Ill. 497.
REVERSED AND REMANDED WITH DIRECTIONS,
TAYLOR, Psd. AND THOMSON, J. CONCURe
=aI~
TO ae ete a dove cot wal odt at daancae
spacer, iat . Shi
teompbut xeqous oat etme ten at terse 2 sg tA. sinew dos
SPAMLRTEIEHSt HE He Bees & zi cals aig 28 68 ‘en
cet eter ar tane oot 22 SOREN Sa fete qh nidned “4 pees Ree 4
<3 EOS seers a . oe ate hae
| ae Mahe ts SB a oe we ‘Gee wi —— "4
wo He s2eay- et tpeseed “ee Bares * # on hatte ve
70 = 31194
CARL LARSON,
Defendant in Error,
ERROR TO
Ve
MUNICIPAL GOURT
E. KAHN & COMPANY, @ corp.,
Plaintiff in Error.
OF CHICAGO, |
ce Me Ce et Se Nl Cr Cees Nc itt ntl
Opinion filed March 2, 1927.
2DAAT.A.63T
SS
WR, JUSTICE O'CONNOR delivered the opinion of
the court,
By this writ of error the defendant deeks to
reverse a judgment entered against it on March 7, 1924,
for $625.00.
The record discloses that on January 29, 1924,
plaintiff filed his statement of claim alleging that the
defendant owed him $625,00 for potatoes sold and delivered,
The suit was returnable February 5th and on that date the
defendant's appearance was entered by its counsel as "E, Kahn
& Co., 2 Oorp. herein sued as E. Kahn & Co." The defendant
was named in the praecipe and statement of claim and sugmons
as "E, Kahn & Company." ©, the Sth of February an order
was entered giving the defendant ten days wibhin which to
file its affidavit of merits, On February 19th no affidavit
of merite having been filed, the defendant was defaulted
and judgment entered for $625.00. This was vacated and set
aside on February 23rd, by stipulation of the parties, and
the defendant given ten days within Which to file an affidabit
of merits, The defendant failed to file any affidavit of merits
f | gtorre at ‘tombe tet fous fee ke
{
(
é oT SOnnE eb
: TRUGO JATIOLAUM $
_ ORADTHO WO | .@t0o @ ,YHATHOD & WHAM »@ :
, etortd at thisalelt, sai :
ae SOL (2 détew Oof2t actaiqo® © FPR :
PRO caTR RS Ore ee
, to ee eer wes sovKoD"@ wor reUt vm OO” tp
a ) 2 i ae nya
ot axiesh tnehasteh edt rottts ‘te thew ‘aide «
aauae tot
ie SePUROGT . GBs Rm a eo ttas
ePSOi .2& yosunst oc tent aseoloalb brooet aiff ay.
edt tert gaigelis mislo to taometata ald beitt Mtitnislg
serevileh bas bier esotsteq: tet 90,8883 sid hewo sashasteb
edt e¢ab tedt co bas d@ yrawedet eldaxiutet asw tive edt
ePSOL 9 Mote wo tf reriege Setoine te
oS miei .i" ea [eanvoo att yd berstae sew eons tasgge ettnspasteb
~—s Paabaeteh eff “.00 % anedt .2 as bsve aiered YT OO s 4100 4
e stomps dos mtslo to tneestste bas ogioeatq sdt mi boman eaw
cebto as vtawrdel te dda oft 0 ",yunqmod 3 adad a" os pe
Ot Molde xiidiw aya oat tasbasteh edt gaivig boretae or
tivebitts em mel yraurdst a0 satitom to tivabitts eth etek
‘petiuateb esw daabneteb edt ybelit aeed gatvad etizem to
tee bee botanav sew etdT .00.888¢ rot heretas tomb, bas
_ ba yaeltteq edt to mssaliniiet yt ybxts waren ao 0 ebies
«Be
and on March 7th it was again defaulted and judgment entered
against it for $625.00, On, May 3nd by stipulation of the
parties, the default and judgment of March 7th was vacated
and set aside and the defendant was given leave to file its
affidavit of merits within ten days from April 30th. on
Way 14th the defendant having again failed to file its affie
davit of merits, a defaalt judgment was entered against it for
a third time for $635,006 On June 12th, the record discloses,
that an order was entered setting aside and vacating the
default judgment of May 14th and also setting aside the
order of May 12th which vacated the default and judgment
of March 7th, and it was further ordered that the defendant
be given ten days within which to file a petition to vacate
the default and judgment of March 7, 1924. Afterwards on
November 7, 1924, on motion of the defendant, it was ordered
that the defendant be given leave to withdraw its petition
to vacate the judgment of March 7th and leave was given
the defendant to file and amended petition within five
days. On December 26th, following, an order was entered
reciting that the matter come on for hearing op the defend»
ant's petition to vacate the default and judgment, and that
the court found against the defendant end dismissed its
petition, from which order the defendant prayed an appeal
to this court, which was allowed upon defendants filing its
bond in the sum of $1200,00 within twenty days and bill of
exceptions within thirty deys. On January 15, 1925 the de=-
fendent moved the court for leave to file another petition to
vacate the judgments. The motion was denied and an appeal
prayed and allowed to this court upon the defendant filing a
bond of $250.00 within twenty days and bill of exceptions within
thirty days, and on that date the defendant filed its appeal
tt
~- betetme fnewyby, bas bedinateb miage aew ti det doxell no ban
Nee edt to moissiveite yd be® yak gD .00,883$ set #2 saakags
bejacey asw dtl dors Yo fnenrghet bas tivated edt ,eelt tag
3 evi @Lit of evesi nevis esw tascinetoh ont bas bias toe bas
ae | #O .dtO8 Liega mort eyeb nat alddiw eticen to vivebitts
: ~tite att efit of bolist alegs gaived dotbhasieb emt: ataL yen
* | got gf tamtege betstas anew tasmgbey 2 Gated ®& ,eticom to tivab
‘ | easaoloeth broo st Pale pes want a ear ret oakd buidt s
edt gnitecev bus shlee giittes baretae eaw zahto as tadt
ait oblaz gaitiee cele bas dist ysl to tomy but, tusteb
faemabst bas tigateb edt hetsosv do tide ag 82 su Yo rebr0
fasbasteh edt ted? berehxo vedtist eaw tt bas ,dz¥ dotad Yo
eteoey oF MOttived # 12% of Motdw widetw yeh tet mevig od
so ebtswresta .SSCL ,% dota Yo Fasmpbiit baw ¢lueren ede
he: berebto eae ti ,tasbmeteh edt te acitom ao SEL PF tedmevoE
aed a Pine D
Se aoa a ee
oe
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: aolsisequert warbdt in ot evsel aevig od tasbusteh edt tats
ss _fovig sev evsel bas oY dozen to tmeaghut edt eta0sy ae
‘3 SVit aidtin gottiteg bebaems bas 9ftt of #aabme eb ot
= _sernene saw tebze as ggniwol fot tas Todaso a m2 eyed
ny gebasieb edt go gaitged rot no omen rettax ort Pett gate, ape
. _tad? dee .taombu, dee tiueteb oft atsoey ot noid kteq ‘stdas
as LO tg a
Se (eth beagiveld bas gutasteh ods tentens bauct g2uoo 91
ys cs BA Oe ‘
Laougs as beyate taabasteh sd? xebto so bbw mort grmagseen
cos ik age Be
ath gab tt atasbasted Hogs bowoLla een votiw <ixwog eidt of
) TSS ee ee Bae P
, te Lite bas ees: yioont, add bw 9.00828 to. sua ode mt hnod _
Rear aber ald
E i Le eset aL Yrauagh, ee eyed, ade abide te
i | OF mottited rsdtons sf1t. oF ovest ret drs09 ott bevom tanbas
fseqqe as bas belngh . ui o87 ots a
« qatcee tasomsteb ent ar feete eidt of bowolia bas.
o » Ak ie SY wae wees Pet gaeteb s
eastéevesn to inte ute iw
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% Porat Ts, Ae Pavy | Ae ren SaRe, ue ’
il att belt? $ ashas?eb ode > tadt go Das
ESAs oe. oy NPR ats
“me
bond, which was approved by the court,
Afterwards on January 24, 1925, by stipulatiog
of the parties the order approving the appeal bond of
January 15th was vacated and set aside and the appeal bond
withdrawn, and it was further ordered that the order of
December 26, 1924, above mentioned, be vacated and set
aside and leave wae then given to the defendant to file
an amended petition to vacate the judgment and the defend=
ant was ruled to answer the same within ten days. On
February 21, 1925, the court overruled the defendant's
motion to strike plaintiff's motion to strike the amended
petition of the defendant, and the defendant's amended
petition was stricken for want of jurisdiction. From
this order defendant prayed and was allowed an appeal
to the Supreme Court upon filing a bond within twenty
days and bill of exceptions within ninety days. The
appeal bond was filed and apparently this proceeding was
dismissed by the Supreme Court. Later the defendant sued
out a writ of error from the Supreme Court and thet court
transferred the cause to this court,
From the foregoing recitation of the facts
as shown by the record, it is clear that the defandant
has been trifling with the courts, Three judgments were
rendered against it end later it filed three petitions to
vacate the judgment of March 7, 1924,
The defendant first contends that the judgment is
wrong and should be reversed because the judguent is against
E. Kahn & Co. “without BE. Kahn & Cos having been @ party to
the suit is not a judgment against the defeniant E. Kahn &
stride 9 ae yd bevorgas esw arin" ° dl
4 § wri ktegst
woltsisgite W .gkeL df qtavaab 110 sbrawretta andes
3 rene
ten bas betzosy sd bono staen avods von Bs xedn90 00
orit ot dag aetel ent oF asvig aoe as" sysel, bap, obtep
“shnoteb edt bas +o xg Burt ort ov. a0a¥ ei sottiteq bebaoms as
‘gO .eyeb aet alddiw smae ode uewans of hele Het pe Age
a'iaebaster edt beluttsve trvEo edt 288s 8 / a
pebabms off adiute of molto a! ttitatelq eiisie of ¢ motto
‘Bebaens eltashasteh oat bas stasbaoteb ot a ma stg
mort saottosbe taut toe aan rot agie inte Rag Ms
“tesqqe fo bewol is ase bas beyseq taeha9zen ebro. add,
a Wino mad bw hacd 8 gatit aoqu frurod smorqua aft oF,
edt ayeb ytonts middie ano itqooxe Xe tii bas. ‘BXSD.
esr ‘gutkesoorg ait Utnoreqas bas ‘bolit aew , batod, fasags.
boue tachaster ody rated «F100 onezque, edt yd. Donaluesd
Fao sit bane $2000 omerque oat moxk torre, te thay, 9, tue.
oF TG00 etst of Saez 9 ke a
atest oft to nots eibost gatogetot oat mitt eras ont
(tnabaated-odt tet teeld ef +f ybtoost sit ve noi a8"
_ SteR atmsegbdyt eextt’ yetxvoo ot dtiw gutittee need aad
3
| OF anottite, serdt belt? $2 setal bie +t temtage Siekan kad”
i OE Ok ROT torte Ro Premade oa eteeby”
berm — y
“a $ nony bu ‘ott ‘parte fia fi sent? tuasnored
Ree oy ee dee S| eh EF tay
rents ek taompbut oat a beatavax se btuod
cus Se sath i Oe ee gg
bi Wise £ need gutvad +00 & ade .
enh Ke tee Stene iets ches
& adet .2 tua astob one teato
He PARIS ct Res 5 R geeks ay ih
- a! \
a ae eee a ee
“Ae
Company, a corporation." This argument discloses further
trifling with the court. The suit was brought against &,
Kahn & Company, and that company was served, Its appear=
ance was entered as Ey, Kahn & Co., a corporation, There is
no merit in the contention,
A further complaint is made that the court was
without authority on June 12th to vacate the order of May
B, 1924, which vacated the default and judgment off March
7, 1924, because it is said the order of June 12th was
more than thirty days after the entry of the order of May
2nd, and that the Municipal Court is without authority to
enter orders after the lapse of thirty days, It is true
that the ijunicipal Court has no authority to vacate a judg=
ment or final order after thirty days has elapsed, but that
rule of law has no g@ppliceation because the order of May 2nd
Was not a final orderg that order merely vacated the judg=
ment and default and gave the defendant leave to file an
affidavit of merits, Such an order is not a final order
and may be vacated at any time while the suit is pendinge
Moreover, the defendant is in no position to question the
order of June 12th vacating the order of May 2nd, because
the order of June 12th in addition to wacating the order
entered May 2nd gave the defendant leave to file its petition
- to vacate the default and judgment of March 7th, and the
defendant afterwards treated this order to June 12th as
valid and binding because it subsequently filed three
@ifferent petitions seeking to vacate the defauvit and judg-
ment of March (7the Having thus taken the position that
the order of June 12th was valid and binding, the defendant
Will not be permitted to stultify itself and now claim that
os ia
fenatpcatt agecloalb taemgue efit " goitearcgreo 2 otasqned
. .& fumisgs tdguoid sew tine ad? .éxveo odd “Wete ganstins
; ; —igeqgs atl .beviee es* yasqmon tant bas aanoD & ate
i ai ote? .aciterogtoo & ..60 4 Aged sd 06, borat ae ase, soa,
Sa .moktastace, oft at them jon
german? Lor
aaw dro ont tadd chen at ¢atafquoe waders? 2” |
eat to xebro ast etsosy of Atel ‘ea m0 vibrodtua ‘tuodtie
_ doait fo sasmphst bas Hirst ab one betsosy do kdw ober *®
gew d2Gi soni to Tebro ‘edt bisa ef z sausso od a8er a
BS ae) te tabro ait Io yetae edd certs eysb wekde add ‘orm
q ot yirotiue dvedtin et tx00d Lago isis ont ‘edite bas ‘bat :
outs at 8 § ooh Uiridt te oaqal ont reets erebro retas
“gbut 2 ‘eta02v ot iiredtus on sad #11700 Log to Lo add ‘fade |
tadt tud ,beeqafe ead ayeh Yiuidt tetbs rebre, “taatt te ; fies
bak yak to tobro edt eauaced acites tigqq oa esd wat to Slee
~gbirt oats betsosy yletow rebro fads jrsbvo Inait s ton eew
ms efit of svesi tusneted ode evag has divetes bac toon
i! xobr0 anit » dom wt tubre ma tows satiznes ‘to Fivabitts
Bt ~gn2baeq ai tive o0¢ aftdw eo it yas $4 bedsoay ed yo Bas
Eo sf% mottayuy of att ieoq ox at at ¢aebmcteg silt ptevooreli
ae earsoed chat ye te tabne oat yalteoay del onwt to 26690
ae rodeo ott galteced os solitons a deat saul, te rebto oft
a golthieg #tf. Sit ef evse! taabasteb oft evey ba Yau beretae
; on? Sas ,d¢¥ dorsi to taomghul one piusteb edt etepav.of
ae dL enh of tobse elit hetsort sbrawnedts. tmsbastah
sexdt bolit yLtaeupesdye #2 sovsved yalhatd bes BAioy
| abut bas Husted edt stacey of yatiooe enoititeg snoreTtib
tad otstece: ott woiee pt gatvet | “ait fore to teem
ue PS Go aio ceny id
Ensnaereb oat “eaalbats bas bitsy ow arr ah % xob10. a
Dan
the court had no authority to enter that order, The
defendant by filing its three petitions to vacate the default
and judgment of March 7th treated that judgment as being in
full force and effect and it cannot now advance any contrary
positions
The judgment of the Municipal Court of Chicago
is affirmed.
SFFIRMEDe
TAYLOR, P.J. AND O'CONNOR, J. CONOUR,
SOR eh
ait)
wei i
Jia NE By "4
ee eas “Ay inte hs
Ae
OT ee ee Be Hews
FR Zo eur et
eorwl Belch ehtenneedes fh
- woke con mutg ame ls sana
84 = 31210
OLIVE LEITCH and DOLLIE F. LEITCH,
Plaintiffs in Error,
ERROR TO
Ve
MUNICIPAL COURT
OF CHICAGO, @ corporation, et al, OF GHICAGO,
ARMOUR MECHANICAL COMPANY,
}
)
UNICN STOCK YARD & TRANSIT COMPANY
Defendant in ae )
i A. a e, eD Q 1
OPINION filed " 2, 1927.
WR. JUSTICE O'CONNOR delivered the opinion of
the court,
By this writ of error plaintiffs seek to reverse
an order entered by the Municipal Court of Chicago on the
3lst of July, 1924, by which the service of summons was
quashed on motion of the defendant, the Armour Hechanical
Company.
On May 15, 1924, plaintiffs brought an action
ef forcible detainer against eleven defendants for possession
of certain real estate in Chicago, They also claimed $394,800,
due them for the use and occupation of the premises by the
defendents, Service was had upon all of the defendants, The
Armour Mechanical Company one of the defendants in the trial
court and the sole defendant in error in this court, filed
@ motion to quash the service. The motion was sustained and
the service quashed, All of the other defendants filed
their affidavits of merits so that the cause is at issue
as to all of the defendantay except the Armour Mechanical
ay gy ae
orig OY added bas en
— ‘at attivetite
gre gi Ae Rai a “omg Rene
ve nat nase Lig
YHATHOO TLAKAAT & G@HAY Ar wor:
<i8 79 ,tolteroqroe @ ,ODA0
fame maoitonl
opens sadye Duum
,OOADTHO 30
MO OO Oe GR, FOO: i FO,
J tHAsIOD sso Taam sci 4
cc ai tesbhosteg
»2eeL “s £3 beiit Koterqo
‘ode eo deenietp Yo faved Loutetaut sie et boretas eee a8
ea" saonmue to soivree sdt doldw yd ehSOL sisi to tals 4
Qbane
gettes ae tiyvetd a¥titateiq ~bReE at Yet ‘ wee ct
Company. The service having been quashed as to it, plain=
tiff moved the court for a default and judgment against it
for want of appearance and affidavit of merits, this was
denied, and it is obvious there was no basis for this motion
because the service as to the Armour Mechanical Company had
been quashed. The plaintiffs thereupon prayed for and
were allowed an appeal to this court, upon filing their
bond and bill of exceptions, Apparently that appeal was
not perfected and on July 14, 1926 plaintiffs sued out a
writ of error from this court making Armour Mechanical dom
pany the sole defendant in error,
The defendant contends that the order which is
sought to be reversed by this writ of error is not 2 final
order, and, therefore, the writ of error will not lie but
should be dismissed, ‘e think it clear that this conten=
tion must be sustained. Sec. 91 of Chap. 110 of our statutes
provides that "Appeals shall lie to and writs of error from
the Appellate or Supreme Gourt, as may be allowed by law, to
review the final judgments, orders or decrees of any of the
Circuit Courts, the Superior Court of Cook County, the
County Courts oF the City Courts and other wurts from
which appeals and to which write of error may be allowed by
law." And the Municipal Court Act provides only for the
review by appeal or writ of error of final orders, judgments
or decrees. It is obvious that the case is still pending
and at issue in the Municipal Court as to the other ten
defendants. Furthermore it is not disposed of as to the
Armour Mechanical Company, because the order merely quashed
the service of the sugmons as to that defendant, but the suit
was not dismissed as to it. But even if we assume that there
x _—
~wisiq sti ot as bedeavp seed yaived soivrer < ini
vi teategs sasagbvt bas divested a tot tzuao edt bevom Etus
i ssw eidt ,atiren to tivebstte bas spaaseeqes to vasw sot
i ‘geitom atdd xot ateed of eew etedt aveivde wi vi bua .betmed
bad waeqmes fssinetoe twomtA sift of aa sotvred ‘ont a
Sao aot beyste noquersay altitntelg edt _sbeitas | eed
thodd anifit soqu ,ttyves ald? ar laeqqe ae bewotte eTSw
asw feeqqs tact ultnetacda -enoltgooxe to Le. Pi: bao
| & tuo bove ettitaisl, S66f .a! ylvl, mo bas betostreq ton
“ob Asoinadost tvomta a truco ety mor? Torte to. Sine
re ve wtorys al dmabaetebh efoa ont “yaag
at dotdw sebxo odd tad ehaatson stmehaehed ad?
fenit 2 toa at Torco to tiny eldt yd beatever od at, siguee
tud @if ton [fiw tovcs to tite edt ,erotereny edna yrebro
: enetmos sivd ted? tasfo +h dnidd ef boauiemsh od bivode
& Bias.
a sotutate a6 %6 OLf .qarO to Ie .o68 -beatateme od foun got
-
- te yas to averoeb to etshro .ataemgbert {seit . pee.
_ St .XtMO Aood to tod Todzequa odd petxved #tuontd
_, sext gtige tedto Sane atzu9d Win sit Xo. etrwed. YWeewod |
o howorts od Yam toTTe To atten dotiw ot han. etanggs do tde
Ot tot Use eshivorg 404 #100 Laqtatmum edt. ictal
— setebro Laat to torre to ticw xo Iseqas yt wolves
Bathasq Ilite at e280 act tadt avotvdo at. tL ,a90T99b,10
wet sedto. OAT of 88 tusg Castoamat on ab emake, das
a a? a8 to heaogath Jom at #h ovearedea ata
~3=
was a final disposition of the case as to the Armour
Mechanical Company, the writ of error would have to be
dismissed because the law does not permit the review of a
case by piecemeal by the Appellate or Supreme Court, In
People v. Banks, 285 Ill. 137, it was held that where
a bill was dismissed as to one or more of the eastine for
want of equity and the case remained pending as to the other
parties, the complainant could not prosecute a writ of error
until there was a final dispositiog of the case as to all of
the parties, and that if a writ of error were sued out
before a final decree or disposition of the cause as to
all parties , it should be dismissed by the court on its
own motions The court there said (p.140) "The decree
in thie case that we are asked to reverse on this writ of
error is not a final decree, This court has frequently
held that if a bill is dismissed as to one or more parties
for want of equity and the case still remains pending as to
other parties, the complainant cannot prosecute a writ of
error until there has been a final decree or disposition
of the case as to all of the other parties. The reason
is that such decree is not a final decree within the meaning
of our Practice Act, and this court has therefore no
jurisdiction to review it. Under such circumstances this
court will dismiss the writ of its own motion. (Bucklen v.
Gity of Chicago, 166 I11, 451) * * * While there are ex-
ceptions to the rule that this court will not review a
decree under the circumstances here presented, yet it ia clear
from the decisions already cited that this case does not
come within the exceptions but is one that should not be
reviewed on writ of error until it is disposed of as to
all of the parties,”
«f=
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? 85 gh 4 oo ae
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} Tot eeltise eit to tow <0 onc Of 82 bscatueth saw at tries
et sedte edt of es gaihnsg besiswet eeso adds bas ‘ytlyne to tnaw
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; rorrs te titw 8 etuosaotg for hives tnaniatqnce om | 20:
: bak ie ot @2 eeso odd te #oit taoge th fenit s pte ‘pail “Eitas
: ” $y0 bewe stew torte Yo tice 6 th tadt bas seolteag ‘edt
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-qivmervpett eet tasoo aii? .seroebh feast « ton al sone
-o!pehtisy sree 10 ono. ot as becalmeth ef ILid 6 tf tadt bled
ot 82 gaibaeq satenet {lite gare adt bas ytinpe to tmew cor.
te tixw # etveezerq sence tasmiatquoe edt .eottraq xodto
aeitisoqath so eetoeb Laxit. s geed sad ered? (lam tore
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| qakaaen:nt2. miseiw-gonped.tanst & ton af. soxeqh, dosm., test. at
00 enotezedd eed Frv00 aift Bas .20A sotvouTd 140 Yo
ss ahd? Booastamuetio dove wha .t2 velvet of uote thetzut
oa apdalous) yaotton are. att ke tine edt eeimeth Lin tao
RO. exe otods OLtdY * * * (GD 41ft BOL .onsotdd to ysio
ae hve dae Shy. temo. etdt Fame, olen ade. 9, BORER
ae melo at th toy .hetnsestg omed wsomatamoriy srt r9bay soroed
em, apeb, ven, sAdh. tad? degto ybsezLa anotetood st wort
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on den
In the Bucklen case cited by the court in the
Banks case, it was stated that an appeal from an order of
court which was not final will be dismissed in the absence
of any showing that particular hardship will result from
such dismissal, Ip the instant case there is no suggestion
that any particular hardship will result unless this writ
of error is passed upon by us upon its merits, and we cannot
see how such a suggestion could be seriously urged,
The order sought to be reversed by the prosecution
of this writ of error not being final, the writ of error
is dismissed,
WRIT DISMISSED.
TAYLOR, P.J. AND THOMSON, J. CONCUR,
to tebro os acxt Iasaqs a6 tadd henabe ecw wat
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Q6 - 31224
ELIZABETH DURKIN,
Appellant,
APPEAL FROM
Vp SUPERIOR OOURT,
COOK COUNTY.
EDWARD A. LIGHTFOOT,
Appellee, : A TA whee
Opinion filed March 8, 1927,
MR. JUSTICE O'CONNOR delivered the opinion of
the court.
Plaintiff brought suit against the defendant to
Mi
recover damages for personal injuries, There was a verdict
and judgnent in defendant's favor and plaintiff appeals, ad
The record discloses that about 4:00 P.M. August
17, 1924, as plaintiff was alighting from a southbound
street car in Vincennes Avenue at 9lst Street she was
struck and severely injured by defendant's automobile
which wes being driven north in Vincennes Avenues
It appears from the evidence that Vinoennes Avenue
at the place in question runs north and south and Slst Street
east and west; 9lst Street intersects Vincennes Avenue on the
west, but does not extend east of that street, There is @
double line of street car tracks on the east side of the road~
way on Vincennes Avenue. The roadway for other traffic is
west of the two street car tracks. There is a space between the
west street car track and the pavement three feet seven inches
Swhich is 19 feet,
in width, West of that space is a Pa
word dames (
eH sorawge |
ts 308 1008
. say aye wien te
ial ite ts ae
SAMOS TW BEAR INS aia) * TS PARR Ie saa
“~~ ¢ ‘st ee ee EE A EN ot et ‘an:
a oe = a
8) ‘ Oa Le i Ve ¢
) oe a
.18@ <8 dots pets? etna. pes
te notmiae “ends hewe¥EEes lchnnd 1p ao teaw iw
Sea RE aw
en RM RS ae BE
od Sadan elt Pantene tive $ dgwond rhivgetst .
ashaor ® aow orang? Dubie bid fanouseq sot eogamah evooe
de ncenene Vhiva tesa bas toret atgaabooteb at _taexebut, bas
deygwA Met OOrD tuoda tatt ical Weil ent son ae
fnaehdvow # mort gadtdytia ese Misntels aa PSEL AVL
sow ode toord® gal ta eunova semmeon?7 nt too soorte
eine @lidonotnea ettachectah yd becefel ¢loteves be wowrda
+OUROVA womireoa LY at dtroa aovith wate aew doin
‘eunova nesionadY tadt sogebtve ade won't ates ges a
“ goonte tel@ bee dtvoe bas déxon anu aoltagoy nt vont x oni te i
edt mo @nevA senmesnit atosaredai tees tole ireow bas ane
gat erent tootte fade to tans baetxe ton seob tot ats 9
bei ‘edt te ebin tear ott OG einen ‘z80 tooute to ait Loot
el olttat taddo 10% Vabeor walt t minidin ssansoaiv f, " Re
eat usawted aoaye # ad viede :
a
7 inches in width. This latter part of the street is
used for vehicular traffic. The evidence shows that
Plaintiff, a woman about twenty-six years of age, was
Tiding south in a street oar which was operated on the
west track in Vincennes avenue. It was @ bright clear
day. She was to alight from the street car at 91st street,
and as the car approached that intersection, it slowed
down and came to a stop at the usual plece = the north side
of Ylst street, and plaintiff alighted from the rear.or
north end of the street car. As the street car was approach
ing S9lst street a Ford coupe was being driven north on the
east side of the roadway of Vincennes avenue and when the
driver of that automobile saw that the street car coming
from the north, was going to stop near the north intersection
of Sist street he slowed down and stopped near the south
intersection of 9lst street so that when the automobile
eame to a stop it was about fifteen feet south of the south
end of the street car, The driver of the Ford saw that there
was no one in the street to board the street car and therefore,
knew thet the street car was stopping to discharge passengers,
and that such passengers would necessarily, in going to the
west side of the street, pass across the pavement in front of
his car, The evidence further shows that defendant was driv-
ing north in Vincennes avenue some short distance behind the
Ford and as he overtook the Ford, which was stopped at the
south side of 9lst street, he swung his automobile to the
west and passed around the Ford and as he did so, the right
front fender of his automobile came in contact with plain-
tiff throwing her to the ground and severely injuring her,
othe
si teerte oft To freq netdtet ata? .dthiw nt eedont §
tedt enode eonshive edt .oltiont taiuottey Tok hear
gaw gage to exs9Y aie~yoaent éuude. asunerer & stiivaelg
oi} mo betstage saw doidw xen teexta # at ddio gaibit
tanto sdigixd & aew #1 ounens eaomoaty at dosnt tage
eSOorss ‘dae te too toaxta ont. mcr] tagtle ot Ree eff eb
bowole tk ,noitovoratal. tect botiaonggs 150 edt ge bas
obia déxoe od? = costa feues adt ts qotu ¢ of aman bas awob
To.%hos ant west Setdeite Ttittaiela baa ,teenta tel? Yo
=foxorvgqe Rav. reo toewte sat a4 ©. tho tonrte edt to bee dirom
edt no dete mevixh gxtod see equoo bred « teottal tale gat
et sreerty bas auaers eonnenmiV to yauhaot ad %® oble tare
} “gaknoo z80 teorde oid? auld roa olisonorss sade Pee vacch
anteonavetat stron oat ‘a80m gota ot gates aow <Atton ‘sat mark
diterom exit “ome heccots hak mick hometn ex teorte ‘tele r0
obitmgtyre ad? gots telt on itente tel@ to mitoeenetal
dtvoe edd to divoe doo saett 2? tueds saw tt qote 8 Ot samo
axodt tadd wae Suot edt to teviank ant sean teetee oft to hae
eStTOTeros? Gas THO Teeuta ad? frsad of teonde ofdomd ome on caw
‘_otsaneugay og tatoo th te Bilogeda ear uae dwette cat hedd wend
donnl » asteg ak parrammaneneicirsd bingw pints abeecvinu: ye 3 tadd bas
to taor? a gusneveG ent aneros ene deorte outs te able taow
we DO ae ae
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La if ae
ote had ded const ath trode amo ounewn aeansoatv th ito gat
Da at Rea
ome te beqqota aw io het abrot oda foot rove a ee nae 4
a & Lae
“oe ot eitdenotue aid yanwa ed atoexte tere to abies oe
; tigat oy wor bi od 98 bas brow odd baworts ‘poana b aa faew
te AeA | a Hae ads os hea Ba] @ ay
ec do tw toatnoo ah emt ertdonotue ald to taba |
: ‘ “ae paturtad ton
a se
-s
The evidence further shows that when plaintiff
alighted from the street car she looked to the south and
to the north before proceeding west across the street,
She saw the Ford coming from the south and saw it come
to a stop, The driver of that car then signalled, by a
nod of his head, for her to proceed westward across the
streetZ At that time the strect car had just started
up, Upon receiving the signal, she started and was some~
where near the center of the roadway when she was struck
by the defendant's automobile as above stated, The man
who was driving the Ford automobile and his wife who
was riding with him and two men who were operating a oii
filling station near the northwest corner of the street
intersection and plaintiff, herself, testified substantially
as above stated, Piaintiff also testified that she did not
see defendant's automobile wntil she was struck, Some of
these witnesses also testified that defendant's automobile
in passing around the Ford and when it struck plaintiff
was traveling at the rate of fifteen to twenty miles per
hours
Defendant and his sister-in-law, who wae with him
in the car at the time, testified on behalf of the defendant,
fheir testimony was te the effect that as they were approaches
ing 9lst street from the south they saw the Ford automobile
stopped in the roadway ahead of them and that she street oar
passed the defendant's automobile before defendant had
reached the Ford car; that upon overtaking the Ford car, ;
which was standing in the street, defendant shifted his ear
into second gear and proceeded to pass around the Ford at
about ten miles per har and as he did so plaintiff walked
into the right front fender of his automobile, They both
wel me
Riiteiela wed tadt swore tethrut somebivs adt
bas dtives eat ct Bewtenlt e4e say rewrite ant sort hotdy tte
I2STSB alt ceotne tase gathesoor, ovo'ted Meron ety oF
eHeo ti wee bis dtvoe o4f moet gataoo boot edt wes ets
Syd ~heliengte gadd rao ject te tevted ent «tote 8 oF
ade sors Hrewteow heonecag of toe co¥ beat eit to bon
bottate teul bad tap teotte ond emit dadd ta gheerdy
“Shee sav bas hetrete ote .ieapte actt ‘guivieeet goqW qu
MONTE dswisds aSdw yseheOT “SA? to coder SAF Hea etedy
Six edt .betete eveds ws siidondtie at taabasted odd yd
oi¥ ok iw' sid bie ofidonosue Brot edt gatvith Wal bie
dito s gutteredo staw odw xem owt baa wid tiv gaipiy sew
‘teette ede Yo reer09 sesrdtccn ocd teen nottare gabhtee
Wisteistidve boltitiet ,Venred ttttnkete baw ‘nottoedndbat
ton Bib ede tad} Hektivast onle thivatirt osterd evade as
elidouetea s'tasbnoteb tatt pottiteet dete eevventiw esl
“Ptaialo teow) +f new Bee S£o'l edt bewove yitsesy ag
0G RElm YWoows OF mast: t to sider Gus He en a
Pau Shea
mit dit tw Saw ost ral~ninust ete aid hus pry
to emo8 JWourda sae ede 66 e yy alidouotud att mebaetet
ee 49
tashasres edt to YLeded mo Hast? kiaos xan it sind ta a ~ at
ntosoxqas atew vous a8 fedt doothe ody ot saw qwontteet teat
oxtdenotve brot ode waa pa ttovs edt wort teorte ese gat.
tae ‘to0nte ont § aris bas most te basde Vewbsox od ak Aeaqeta,,
“had tsb aston croton ettgonotua at anda t ob (edt besgay
ae a
h . ae ) MOG Aaat jta0 bret od? bedeass
be ers bos tine tasbasten drente odd at gathosta aan, token
a teo% oe hemes whee eh Sedinnine hee Savy amend aay
Dbetiaw ttatety oe bis of ee bes nao req eolim wed hrods
(tod Wat elidoncsus etd Yo robaek taoxk digit sdt otat — ‘
“ Ba
ft
dene
testified that they never saw plaintiff until she struck
the fender, All of the witnesses testified that the motore
man and conductor of the street car came back to the place
where plaintiff was injured and that she was taken in an
ambulance to a hospital.
This is substantially all the evidence as to
how the accident occurred and plaintiff contends that
the finding of the jury in favor of the defendant is, against
the manifest weight of the evidence and we are clearly of
the opinion thet thie contention must be sustained. There
is little or no dispute in the evidence and in omr opinion
it clearly shows that the defendant was negligent in driving
around the Ford which had stopped in front of him, and we are
aleo of the opinion that there is little or no evidence
tending to show that plaintiff was guilty of any negligence,
The only dispute in the evidence was to the position of the
street car when defendant's automobile passed around the Ford.
Plaintiff's witnesses gave testimony to the effect that it
was just passing the Ford, while the defendant's witnesses
testified to the effect that it was a little farther south,
but we are of the opinion that the version as testified to
by plaintiff's witnesses is more in accordance with the
fact, because all of the witnesses testified that the street
ear men came back to the place where plaintiff was struck,
Pleintiff also contends that the court erred in
giving instructions Nos. 9, 10, 13, 14, 15, 17 and 18, on
behalf of the defendant, Instruction 9 told the jury that
the burden was on plaintiff "to prove that the defendant
fours ede ffitne Tevassly wee Teves wat sade bottitest
mroron edt tat bet ttiteed ROR eatin adit ‘ke LEA sebno® outs
ee
we
eonle eat of wad emo 280 feorte oct ‘te rotoshaeo bas om
ag ot pedal eaw edn tact bate borat at asm ‘Witatalg eros
ist bqned id of epasiudus
ot a8 somebive oft Lfs ylieltastedve eb abek joe e 0)
fedt ebuoynes Teivgaiele one bertpeo tushicoe edt wed
sentogs eh utegbasteh: oit-to coret nf yest edt to gartbakb-eds
te yYinaelo et. ey Ans soaehtve ett te ¢tigter teetinam edt
ered? sbentstese od tam aoitaatnos elds tedt gotaiqo edt
notaigo 29 Ai bas soasbive sat ak stuqeth em to ahet bh at
gaivith a tasgilgen ssw tashastsh oat telt ewes: yinee to tt
ate Ow bas yuid to ¢aott at beeqotm Sod dotdw brot edto bavers
gongbive on to eiteli ef eredt tedt se tatqe edt-te onde
sonegitgen ye to ytling ase Viltmiely dadt wede of guthmet
edt Le oLttineg ese of aow oomebive edt mt etmpedh! eLmooent
biol edd pavers hesesg Slidorotus widuahas tat wot ceo doerta
dk gens footie ait ot ywormttsst evan eseabntiw: et Mat mbalt
soseontin altaahneteb ont ofidw .fto? od gateesqg teut eee
edison, radtrst olde it 8 gow tf feds tookte one ot battidwes
9 boihitess Bs noises ev ent sted sto Latero ont to ora ot ee
add dttw sonebtovas ti stom at aonaent iy elpteemtete ”
footie ¢ ens dans belt tt eer eosaontiw edt te ifs eecoed toa?
tootts bil thbtabstg ovodn met ent al Sent eeso HOs TO
“ie OP) Se 4
gi Doors Srvoo sit Fedt abmoedines. cele Rate tease bowen
OG) SL bine VL GL od etl ivi Pl © ss eaoktoonteat wet
tad yurl ont blot @ sotpown fon] vteehme eb edt ko ‘Eiadiod
tisbastes eat redd every oF * Yhttatata a nem ane altt
Dies swe 3 is Cae iy ROR, vite aie: aaa dnendan
vee 4, 4 wr of %2 r ” t hb %
tan need é PRD: 2 EU RR Bee gata!
=
is guilty and also to prove that she was in thd exercise of
ordinary care for her own safety." We think this instrue
tion should have required plaintiff to prove that defendant
was guilty as charged in the declaration and that she was
in the exercise of ordinary care for her ow safety at and
before the time of the injury by a preponderance of the
evidence, . By instruction No. 10 the jury were told that
plaintiff was required to prove, by & preponderance of the
evidence, "that the ceuse of the alleged injury was the
negligence of the defendent as charged in his declaration,"
The jury might have been misled because the defendant had
filed no declaration, Obviously the word should have been
"her®, Instruction 13 directed a verdict and was inaccurate
in a number of particulars, It told the jury that if they
believed from the evidence that the plaintiff failed to
exercise ordinary care for her own safety and that such
failure, if the jury believed there was such failure,
*helped in any way to bring about the accident” she could
not recover, This instruction should have been given.
Plaintiff was required to show that she was in the exercise
of ordinary care for her own safety at and before the time
she was injured and this must be shown by plaintiff by 4
preponderance of the evidence, The phrase "helped in any
way" should have been eliminated as it is inaccurate. Pjain-
tiff could not be “barred from a recevery on account of any
negligence on her part unless such negligence proximately
contributed to the injury, Instruction No. 14 told the
jury, among other things, that if they believed from the
evidence that the defendant exercised ordinary care to avoid
the injury, plaintiff couki not recover, There was no evidence
pl
te galozers gdt ci wow ae tadt ovenq ot on fs bas ey Mo
; RY
a Re
soyrteni atdy wmids ow * eden nwo xed sot en20 ytenibre
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ae ode Sadld bas notterstoob eit a Bogund Be elim vow
bad te ytetss avo tet rok Biss wtantoro ‘te ‘ssioxers, oat a
git to soretehmorerq syd emushmt ant te onte a exoted
tert Blot oven gut edt Of .oW gotiouttens yl ysonebive
adt to sonerehsoystq « Xt _—— of betivpet saw Phttareta
gas’ Gaw ydupak Bage fits oa Re sairey axe done aeomobive
“,coftersined eid at benteth ae deadhacted edt Te cottog i Bett
bed ¢abineteb ond sevdoed bafehs need eve titel Yaut edt
aes oved blvoda brow att efevotvdo” wolters load om bert
oramredaut suv bust Yolbyey & botoseth EL mottouetand | tno
“qede Fk tadt Geet owt Biot oY yeast tag tO todeim amt
OF boftat Tivotste ody fedt sombive ott mort sevedted
ote ted? bos vette ave too net orem yrmtlore oeinrexe
cota list fie dew Grodd heveifed yar est Te (esta ibet
bfvoo' ‘ wite’ ‘Stebigos eft fiode g#ivd ot Yer yoo at beqied"
‘ttevhg mead evee Afeods acitourtert sid? revooex ton
eatstexs oct we" wow ode tem wide of betkwper esa Thigwsels
emt? O8F edited hat ta Ytetee svt ted cot steg yrastite to
g yo ttivately Ww MWote od feww atde one bemwynt enw ode
vis at boqied” ewerte oof ,eeaebevo odd to sonsrehmogety
~atart etatuoosni ti ft ee peteriatie aesd ovad btwoderMyan
yas te tnuboos mo Yroveoor 8 mart horied’ of ton bisee Thtt
Vesamixorn, seaegt igen ove, eeolay ¢rag xed so oosteg tigen
. est Dtot M .0% sottouttaal _tcempat, oe ot Dogri at
_ at, wort, bevelled xo Ri hhocmal preside arit saoms *
Be
btovs ot etao yradinxe poate xexe Paabanken one tent hott
1) Bae
coasbive om Bo erect skovover don Nvoo pudatate cota osit
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tending to show that the defendant did anything to avoid
striking plaintiff, beceuse the evidence all shows that
he did not see her until she wae struck, Instruction No,
15 was to the effect that if plaintiff's negligence caused
er ontributed to producing the injuwy she could not ree
cover, As stated it omitted she element that hermegligence
proximately contributed to bringing about her injuries,
instruction 17 was apt to be misleading, By it the jury
were told that the law of contributory negligence forbids
@ recovery by one who by his own fault brings an injury
upon himself, The jury might understand that there wae
an implied assumption that plaintiff was injured through
her own fault and this same idea was emphasized in the last
part of the instruction, which said that it was not a ques-
tion of comparison *as to who was most at fault,” Instrue
tion 18 told the jury that contributery negligence ueant
the doing of some negligent act by @ party injured which con-
tributed to “or helps to bring about" the injury, It omitted
the element that the negligent act must proximately contri-
bute to bringing ebout the injury and the word "helps" was
improper in any view.
The judgnent of the Superior Court of Gook County
is reversed and the cause remanded for 2 new trial.
REVERSED ANDRREMANDEDs
TAYLOR, Ped. AND THOMSON, J. CONCURs
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aie aie fe Be AG Re ed binge Same hve —
Viawod 4000 to tawedtodzeque sit to tame bet emt. ree
IO 6 ahah wee: 8 cok Dobaewet seawy ocd oom) iacaltwa
> By
“prs mM % a ¢ APRS TARERY wee Path ais 7 ‘ Wh jay
* Vit ares Tess gy i F ) a Yagy ‘pte Nee) 4
| Cammaicea Crea
FR: SEW ae REF ae RG » aoe ERB ie a wie Uy ee eae gti tha "3 st four “
wat DART AL ome OX iu cadens * bo pouth weg
Hts oft . A steel eth ee | HOIYAT
BS ee MS oe aS : da cn ara” ie
win ipGaiancaettn SP ovate Ae sib BHR ‘. DAR An ia pe ltde
OR OP peu eh wt Bot & 1 TSR TARR pee rene ea SE Fae sano ks
M3 ¥ pum i
eRrarE Pile Made Uh ied a tie een art ie
BISHOP-WYATT COMPANY,
a corporation,
slid
APPEAL FROM
Ve GIRCUIT COURT,
QOOK OOUNTY,
J. R. LUDWIG,
Appellee,
Opinion filed March 2, 1927,
MR. JUSTICE O'CONNOR delivered the opinion of a1.
the court. PAA TA. CS"
i
Plaintiff brought an action of assumpsit against
the defendant claiming $1388,45, being $1000.00 loan and
the balance due for commissions paid by plaintiff to the de-~
fendant which had not been earned by him. ‘The case was
tried before the court without a jury, there was = finding
and judgment in defendmt's favor and plaintiff appeels,
The record discloses that plaintiff and fhe de=~
fendant entered into a written agreement whereby the defend-
ant was employed "to sell our 52 success thoughts and sug-
gestions with pertfolios and illustrated jim letter service."
The contract further provided that defendant was to receive
as compensation a commission of 40 percent of the net total
on orders secured by him; that the commissions would become
due when plaintiff had received payment in full from its
customers; that plaintiff should furnish the defendant with a
"drawing account on all contracts secured by you not to
exceed seventy-five per cent (75%) of your earned commissions
on contracts closed during the week in which the advance is
a
—() ettasai09 aerarresonata
‘ onal paenanee
ty a8) CM ae AOE Were ae
MONE GARITA Yo Fr agiwed hie few ah “ioe
{eu TIMOATO sigan ban BE
LYPHIOD. WOH ;
;
BR AS RB al RE
rool isagh ROI bins
Sid fe Se RE aE Sox y
lea & 2 domed pottt so talg®: ;
vais ne & ane i gba 8 Pint
F : te go ‘say botevi feb ona aerteu pit bs ban we
a fu m
pari sain te sotton, 6 Hquore vusatess, idles, a
Dm, 80.5 OOOO gated Bb 88LLG gatatato thin, oe
=o, ott of TBitaiaig yi Dieg anotveiamcs rt.oub game edt
oy RRR 9080.00 mbt yd hoatee aed sou, Bed, donde taahso?
gathalt snqw.ezad? qytut.s.dvadtiw, tise git coded att
od Rttatelg bas tovat at tmbantee ak tase mye
Lae bid
“sn edt ins tisatata i ott scacioeth brooes ‘sat
~banted ome wored ‘twousorgs nett ice s ot ai “berosne a
ague ban adigvodt emesoue 88 xu0 Iles oo" Devotqne asw tas
“,eotvase nottel mit betautarlit bax eot ion seq. ote emote i
Ovkenet Of ese PaBherted tact badtveng. gadtgyt. soentaos ott
fated tog: adé; tq..dagoteq OF Io setentamos a Botengeqmey a6
enooed b iuow apo tenhanye. Wer tadt oe i bexuose nee, i.
“2
made, Limit drawing account not to exceed One Hundred
and Fifty Dollars ($150.00) in any one week, The balance
of the commissions due you after advances as above out
lined have been deducted shall be paid after we have re-
ceived payment in full from the customers you sell,"
It is further agreed that the Bishop-Wyatt Company will
set aside or loan to you One Thousand Dollars ($1,000.00)
which may be used to make up difference between earned com
mission and draw of $150,00 for each week,"
After the contract was entered into, thedefendant
went to work as required by the contract and earned commissions
amounting to $4490.87, During this period some thirty odd
weeks, plaintiffs had advanced to the defendant $150,00 a week
until such advance reached the sum of $1000.00 when such
advances were discontinadd, Plaintiffs also paid to the
defendant during this period of time as and for the commis—
sions which he had earned $4879.32, Sc that the defendmt had
received from the plaintiff in all $5879.32, while he had
earned as commissions $4490,87, and the difference between
these two sums $1388445, plaintiffs sought to recover in the
instant cases
Plaintiffs! declaration consisted of special counts
and the common counts and a copy of the account and affidavit
of claim was filed with the declaration, This sets up in
detail the business done by the defendant for the plaintiff,
the charges made and the commissions earned, eto, The defend-
ant filed the general issue and affidavit of merits, but there
Was no contention made by the defendant that the account and
affidavit claim filed by the defendent was inaccurate in any
“ge
betbavH 3n0 besexs ot toa dnweos gaiwarbh timid, «sham
eomaied sft teow ono yas af (00,.08L9) eratton ‘qtit bas
~tue eveds a8 seogsvbs setts wOy seh etoteeiamon edt to
—ox over en rstis hieq ad ilgde hetoubeb seed eved bontl
t [fee soy axesotaso of} mott [fut al —_— heviso
fest wt YI
penny etellod braased? saG soy of maol to ebies tee
“moo bowie’ neetied soumts?t th an Sion of bea od you doldw
i wal dose 20% ree sig xe — aa soigeim
iiehiatbininds estat berets ety doattnes ot TeTTA i a
eno tes Lewwop hennee has soeedeos est we hon tupert a2 txow et tener
Bho esx ist Smee boltec ali gaizatl +73,08088 et galtavess —
gost) wh wl.
deow 5 00 08.58 + hehueteb ad} of boonmavbs bad otiitmata -
dove mode 00,0008 to mua sdf bedossr eons Ce engl
adit of bise oats atti¢aters ~bbonivaooe tb ‘ow Aol
aeimaoo ove set bas eh emtt to porreq shat gat Ted aA
bed ¢embaetes ady dedi of .BE.CTSSS beares bad od ene ‘andte
had od elinw ,S8 @VER$ Ils wt thivatalg sae sort baviocer
_ AbeNted soneTSTILh adt has .TSOCMG, anotantanoo, gs beatse
edt at teveper of sigue etlivaisig ah ili pee pet ane
ai 00 Intooqe to pevakenco aottarase ab #ettte jake worat oy vy 4% i
tivabrtte bua tmovoe ode to yaco & bs et mir00 " somnoe yi Ee mA aie
ai qu stew eid ‘oLs-exaLoey ot dhe beLee ‘am stato to
Hisatele ¢ ont x0 taabasteb oe ww sab “seoateus odd ted0b
“baste out ote sbenres: enoteatnneo on b a sim v: a niyo
th
sredt tod .atixen to teabitta bos, sua 2 Toxon99 oat bet! :
bas tavooos oft tact tusbso%eb all
Ayia sbas Bind be
BT roy ine Ge
wus ae otamecent eon tasbasteb edt td befit mtalo ‘weyanittte
aaa
respect, The defendsnt's position was that after the parties
had entered into the written agreement, defendant's duties
were changed so that he was required to spend more money in the
prosecution of the plaintiffs! business than would have been
required had the written contract remained unchanged. The
court expressly found from the evidence that no such change
in the contract had been made. The court further held as a
matter of law that the defendant wae not obligated-to repay
the $1000,00 or any part thereof that had been advanced by
plaintiff te the defendant, because the contract did not so
provide. In this we think the court was clearly right, The
substance of the contract was that the defendant was to receive
40 percent camissions on the contracts he had obtained, on moneys
received by plaintiff on these contracts from its customers,
and that plaintiffs would advance defendant $150,060 a week
as & drawing account up to the sux of $1000.00. This is
the testimony of plaintiffs! president, fhe contract then
provided thet after applying the $150.00 per week advanced,
on the commissions earned, the balance of the commissions
Would be paid by plaintiff to the defendant. There was no
provision that the $150.00 per week advances or any part
thereof should be refunded in ease the commissions did not
| equal that sum, It has been held in such case that in the
absence of an express agreement to pay back amounts advanced
to an employee in anticipation of expected commissions, or words
in the contract showing the employee to be persoysily liable
to repay such advancements, they are not to be treated as
loans and the employee is not liable to repay this employer
in case the commissions did not amount to as much as the
he
esitisa of¢ ves tw tad? tow noltteog a'tachasted edt .tooqeet
aativh o'inshooted .¢wemeerga mest aw edt etal betetae aad
edt ot yenem srom brews of ber ivwer atw ed dade o8 begaedo s2éw
rood avait bivow sede eeamtesd 'ettitatale sit te moltwoowotӢ
ont .Segatdoay Seater gomtacn netdixw odd had hetanpon
egneds down om fade somebive oft aort bavot qloestqxs dxved
8 88 bied cadtust txru0n sd? Johan masd bed tostines odt ak
Yeqe: oF-detagtidd- tox eaw toshaoteb adt sede wat to cettam
yt bsoaevbs neo’ bad tadd toowads svay tos oo OO.00CLR ede
we ton BES toartnce oat eananed ebaebret ab sat ha Witatale
ot tdgis <ieants asa tren edt anise ow ends at sebivorg
ee
evieost oa ow daabseteb oct ted? ase goettmeo edt to sonst edue
ee ee Mog fe
aqenon 9 ebeniatde hed on atosrtoce oak ae aeotnatams ¢ ‘
orsmodew eth mort atosrt ago ane dg m0 Masaiatg w bovtsost
fh
fe ow a 90,088 snebaet ob sonevhs bivow eMtdtatale, dade one be
uf is
’ at eidt 409.0008 to mua art ot ae pauasoe gotwaxb meek Por
, _ mos teetiaes axl? staebteong ‘eMataledg to wmomttnet ont
| boomsvbe aoaw es: o0-0858 aids gaiqiags ret ts tat vonkven
ea BS
anoitetance ad} te eonslad ae? ehontae ano eines edt mo
om call sted? stnabostst add ot Tet atete we aq ‘od berrssted
“lng ; , ay Way? it
paren YR TO seonavbs veow Te" 00, 08:F8 odd fede ole we
, he, hie ATM
toa ib avoltealewon sa? ores at bebautox od b Lereute testedt
pit a2 tedd eeap dom at Bled need wad #1 gawd Godt Levpe
beonsvbe tinvore xoad yaq et tvomorgs aRexges ce to asmonda
abtow xe ,eaotealumon beiseque to solteqiotiaa ai ssyolque aa or
eldels Yinvouteq ed of seymians ods gaiwoda teentnos edt vant
ae betscrt od of 6m ore yor? qeismmonavde dows yeqer ot
eeyolqne ofdé yaqor. oF efttetl tom ot seyolaue ost Sas Gnao
hae edt ex dosnt on oF “rata tm EN eae tnt e PHBH
% iC ip ae * a Ba eo we ‘ai i Ma in ime epi bak ty rieol ‘4
des
advances, Felsenths] Bros. & Oo. VY» Gradwohl, 217 I1l. App.
170; Nelson v¥. American Business Byreau, 241 Iil. App. 432,
and suthorities cited in those two cases, The fact that the
written oontract states that plaintiff “will set aside or
loan’ the defendant $1000,00 to be used to make up the dif-
ference between his earned commissions and $150.00 a week,
does not change the situation, The $1000.00 advanced, as
disclosed by the record, cannot be considered a loan, be-
cause the contract provided that after the advancement to
the defendant of $150.00 a week, the balance of the defend=
ant's commission over and above this sum of $150.00 per week
would be paid by plaintiff to the defendant when the commise
sion should have been collected by plaintiff,
fhe undisputed evidence in the record, however,
is that phintiff had paid the defendant for mmmissions
$632.50 more than the defendant was entitled to receive.
This was brought about by the fact that plaintiff was unable
to collect the fill contract prices from some of its customers,
The statement of the account filed by plaintiff showed that
the amount of these over=payments was $672.50, but on the
trial @ witnees for the plaintiff testified that since the
account had been made up, plaintiff had collected $100.00
more, and that the defendant would therefore, be entitled to
$40,00 commission. This $40,00 deducted from the $672.46
leaves a balance of $632.40, This is money which the defende
ant had received from the plaintiff which in @quity and good
conscience he ought not to retain, and under the common counts
filed by plaintiff, the plaintiff is entitled to recover this
sum, Wo suggestion was made to this effect on the trisl nor
abe
<SUS gga LTT ES weed
oe *en# tout oft adsense ond Seodt ‘a sbi eh eb yeidinn "$08 |
go Sbtes tee (fiw TRHAES Ia dete e6tere tomtthoo nett ice
“th out ou Soe of beer od oF 00.000L8 tasbmo%ob odt "gnol
qasew & 00.0818 Sam escteciumas bernee ated moowted ¢
ae ~bebmevhe 00.0007 sa” moltaudle ed¢ apne Fon Boob
weg —aeot & bevablaaes ad tornnd .btodet ‘ads ‘ed ied bets
oPsmeneonshY off tote todd Benker tosttace ‘odd Oa: 0
“hasteb od¢ to eonelad ofe ,Feew a OO.08L$ Yo ‘thin ddtig ‘sal
doow 1dy O0.0€1) Yo ave stat oveds Kns'se¥o noieatunds tina
seimmoo edt cade Yoebnetes edt oF YYttatate qW btaq'ad ‘Blues
WPaLaty yw sities vial wet epi mol
: ‘etovowod bxcoe: ade AL wnobive beta thas ont.
set ine
enotestum co rok Faenaot ab eile diag bed Theat dq ne ek
ser tooe oF bolt ke om Baw tasbaatob edi aasts or0m,
oldest aaw ttida tele ¢ sett toast sot yt trode tdyvond, nae | ‘ee
sbremoteno eet to. smoke mort meg tty. @eaennyene. {tet ost. faation 2. of,
tect novos tusalelq yi bolt taxonas odd to trometete, adf.
ott mo tud 08 e8FOG asw atasmyaqerare. oay.ct te te oms, 9d,
ont opate dads holiitacst Tiivatels st not easativ © Latre.
00,0018 befoatfoo bed YEttgiaig .qu eben cong dad tavonns,
* og belt ttae, ac stores ody Sivew tashrateh ott _gadt bam gh TOM,
Pa , ObaSTRE edt mort, betouh eb on BLet wsdl ng: ‘ 0
side xevooet oF - bots ten0 See ads, eo
‘tom faint sit m0 testis aldé ot ebam ase solteeggua off a
mBe
is there any such suggestion made in this court, but upon a
consideration of the record, we think plaintiff ought to be
given a judgnuent for the $632,40, there being no dispute
in the evidence, as to the over~-payment,
The judgment of the Circuit Court of Cook County
is reversed with a finding of fact and judgment will be
entered in this court in favor of plaintiff and against
the defendant for $632,40, Each party will be required
to pay its or his ow cost in this court.
JUDGMENT REVERSED WITH A FINDING OF FACT AND
JUDGMENT ENTERED IN THIS COURT.
FINDING OF FACT: We find as an ultimate fact that plaintiff
has overpaid the defendant $6323.40,
THOMSON, J. CONCURS;
TAYLOR, J. DISSENTS.
a noqy tod gimroe eddt ai aicalbdaipkapadacagae Sneak
of of tiguo BMitwsely Aotds ow ghaooes, edt 2
stugelh on gated erect ed ads 108. ‘ba98
gt
ab ty esti
Ga brew tne
rnc s hee ‘taen tite vo ps st int egtticqeonty tin
“bet tuper e0 | tite Ureq done” 208 5808 70% $ man dees eile
sities ape tts ant ak’ + on “poe ald to eri” xeq ot
Oats eam 2 | # iy aidocise hab fe ede.
GEA PORK WO onrans. A RYE caasavs angi! bt vias
re Pia 7 58 a SRI. Great iia GISa TER. TENQUE cae We Shisoe
TMitalale dade nat annette ah 98 An an ae w oUTOKE
i i St Bi satan ahd ES, Nelo sseeva a Hy tin? Sete | ROP 6 i, ae hy Dh nes
E es ' eee che
eS ae Oe ST Ha, mate,
} ) OPE a : By ARE Ate VR eat SRK a say sae at
, Se 2: MMS MIS Aa eT Rs re kee ae Same madly, 4 2h
( MNS i EM AIAN AUR te eae * eke, RNS a ee & PF
Saee ys i Fess Ret ay, hy dae Ny Nahas BB ey ‘ o "
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ate Reg 2 8 A BES. RAY PPAR We 42 BCR a ea I ah CI AR, Nk: ame ge ae Sage i) E08 iis
i , 7 ' me ‘bY
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ge a UM CLS SR och AE cs ONSEN i: GOI ORE Oe A
5 eo OL . 6 vee Ao Aa 1B BERS ROE EV br Hele ZL i SOG oN 90s,
Sy. ARN ae na ROE eM BI SF 2 Ay i anges
F ad 4 7 ai . ‘ 5
. yy Ae ae age Spare ly he Be Pay v OS Aaa a By id Sa oe ey eee a
ARE: MRE RAN Eh AUB OMe RR ee GY ae Paar f SOB iy
ine vary hii: Saath yt PL ie i ee Oe ae A od sedis el i i a
BOF SAUCE SPADES RNS SMS NG Ae A hs te Ge anita
i ee hes ue uth. > *
SR a OMe ch ame i ie OES sy eh A at Mek tq w ange 7
f ; y \ : % WAS ‘{
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TE dea ee ON Hy Haw yin PE es wth abay a an idan aging oi a
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Oe aa See,
L16 = 31244
L. VOGEL AND 8. KOHN, ce—partners, )
trading as VOGEL & KOHN,
Appellants,
APPEAL FROM
Vs | CIRCUIT COURT,
COOK COUNTY
L. Ae GRIFFIN AND J. BENWON, co-~ :
pertnera, trading as BENNON-GRIFFIN
60. , )
Appellees,
Opinion filedMarch 2, 1927,
MR. JUSTICE O'CONNOR delivered the opinion of
the court. So)» A A f* ¢> ae
food “fr \
F
Plaintiff brought en action ageinst the defend
ant before a justice of the peace in the town of dicero,
and had a judgment by defeult of $109,50, The defendant
appealed te the Cirowit Court of Gook County, and when the
case was reached for triel on March 25, 1926, the record
discloses, that rlisintiffe failed to prosecute their ult
ani, on motion of the defendants! attorney, it wae dismissed
at plaintiffs! costs for want of prosecution, Five days
later counsei for plaintiffs served notice on counsel ‘for
the defendant that the would appear the following day.
and move the court to vacate and set aside the order of’
dismisses] and ask that the cause be re-instated and in
support of that motion an effidavit was made by one of
plaintiffs' counsel, The court heard the matter on Mar oh
Slet, denied the motion and plaintiff eppeals. 0 that
the only question before us is did the court abuse its
discretion in i the motion,
DORIS itherie
"; % +8 CBA J& Pr
siaey 4
HA dit “ori
Stet magne gl
italia
aTHUOO TIVOAIO
.27WINO 3090
vat Baha Re ue pe
He ROS EE gg | Aves Lm)
Ee dei to)
ie ea nee “‘wrWtIAD 4A ny
| ee Tiiad-aamiag ee patnart :
OewvaG
— |
to sokaige ont boreviioh ny aorrag, | aE
Cie} ; davos odd
- Pe i oo Gi CP e! A Pe if ios Bh. Cos evita Si inti ® ora ns
| “busted add ftenings aoltes as bequest, wetatert
gosaniy te awot wae a 90.90q, ane to waatens * 1
rie
fuxbacteh od? 0880.8 te $inetop w Poomgbut 9 eis ome 4 has
est modw bus evened toed to val Pivot odd of a inoqys
bxroe 97 ads eBRGL .6S doten #6 fetad +98. Dedoase aan a
tive tledt osu9eBoTE eit bes is atttta tens, tad? ose foath
beasts eaw gi .yeurcotis tetnnbast ab edt ‘te mottom no fits
eysb evlt Hoitmssony To guew “ot ad aoe tattteatatq ts
Tot Lesaseo 20 so tion peveres atiitaiate mot Lopes xetet
vat gaiwe slot ont reeage | fon - Pas tadt tasbaetsb ot
. ‘wehto edt shins tes bat eoakan o} grace edt rom bas
nt bas botstemt-or od sevso ont tadt des boa fanalanin
to eso ye ebam ew ivabs tte Ee) ao bien tents te froqgue
ao tett no tettan edt breed dxw00 et «Tecavoe ‘atti ately
tes of -eLsonge Lite tare bate neivom edi bokneh ete
ett ouds Prieto ode bib ak es eroind nottooup Uno eat
to tte: ot re ob ai aihenneth
-2—
The only metter the sourt had before it on this
motion, was the affidavit of one of plaintiffs! counsel;
that affidavit sets up that the effient was assigned to
conduct the trial on behalf of the plaintiff; that on
Maroh 25, 1926, when the cause was on the trial eall he
appeared in court and at that time requested the said
cause to be held until 2:30 o'clock P.u. of that day,
for the reason that at the hour of 3:00 o'clock on said
day, affiant was scheduled to appear before Judge Friend
in a foreclosure case, in which case there was @ motion
for the appointment of a receiver set for 2:00 o'clock;
that at that time the motion was called before Judge
Friend and that opunsel was there engaged until 3:00
@'clock in the afternoon; that immediately upon that
matter being disposed of before Judge Friend, he went
to Judge Swanson’s court, where the matter in question
was pending, and then learned that the cause had been
dismissed “at 2:30 o'clock P.M. or shortly thereafter
for want of prosecution," and that affiant was actually
engaged before Judge Friend at the time of the dismissal,
We think the affidevit was clearly insufficient. It
does not state that when counsel for piaintiffs appeared
in court on the morning the case was set for trial before
Judge Swanson, and requested that it be held until 2:30
o'clock of that day, that the court agreed to this re-
quest. For aught that appears the court might have
denied the request. However, cowmsel in their briefs
state that when the matter came on for hearing at 10:00
o'clock before Judge Swenson counsel for plaiptifis
appeared and made a recuest ae above stated, and that
the court "granted said leave," But as we have said,
ae haw
eitt oo ¢! ereted bed drvoe aad <ottam yino on?
pane
sfonmuon te¥ticniads: tw ono te ‘Cheat ede. toms va
no tadd {it halete oud te titasiac ie tale orl tovbaoe
ed Irmo fated oft no now gewen ot codw BBCI .@8 dotaM
- Bhek ect Detgesper eodt fade ta das tue ab betasag
evab tedt to 0 toofore O88 tas bred oe 8¢ balsa
bine co doofe'o 00:6 to xued edd te tat ovat odd tot
Baeixt ogdut. sroted sa9qq6 ot beluberipe aaw tnattis yyab
woktes € ote owewih-sad do dveont .eeco exwaodoorot « mt
plocieto 94:8 not tae teviepat o te drantalogges edt rot
sgbut, exoted belles saw nottom edt omit tedt, ta. sade
GO2& kha Segagire eredd ew Leaanres hat anus Saeitl
hed soos yfedstbount tadt qroeh... +m ont mi Aoolote
tae ed abae tet enh eroted xe hee wath autted rosa
“ oktaaup ae ott am ait exedw etrsoo utaoansne opin’ ot
toed bed sauce off Yast dewraat medt 5.9 “pulbong eae eau
“tot taste? ettuede +0 Met soos 1g 08:8 te* bonatmetp
“eilavtes aa tee tt te dsl fee ro tte secon to tase x02
efeaeiwe.tb ad? Yo anit edt ta baoicl sgbet acoted . begias
tk .trotottives? yltsets eax tivabttts odt Amtdt ow
“ boxseges ‘atiivntalg 1ot feameo asitw tedd ctete. ton "ved
areted iste? rot tee san dame oie gatarom edt a0 ‘Fxbeo. nt
obee thew bled od oF dade besneuper baa Cesersid eubut
“ox Bidt of beerye #2000 edt gad yeh soit to sioeto"e
“eval digie truoo et etesnqe tady Pdgua tot | oR
‘wteind tleut at Toomseo toveron stesupor ‘ods’ betae!
ork +6 antrand tot 0 a rotten oat mosie ¢ tacts ait Wate
‘attivgtela tot feunreo hon mend sabut exotted fo! ‘9
tedt bas yhotate oveda es teapot a shar ban pervect
vice oved ew as dea ",ovsel hiss betmeng” treo ont
—Be
this does not appear in the affidavit filed by counsel,
Moreover, even if the court had granted leave and had
stated the case would be held until 2:30 o'clock, the
affidavit further shows that counsel did not appear
before Judge Swanson until after 3:00 o'clock and that
the cause was dismissed at "2:30 o'clock or shortly
thereafter,.*
For failure to make a sufficient showing in the
affidavit, the judgment of the CGireuit Court of Cook
Gounty is affirmed,
AFFIRMEDs
TAYLOR, Peds and THOMSON, J. CONOURs
at a
te ne rage Pre as f
“ sfeonsen ud belt? Stveprtte ade at at xapaae
“bad i bas « ose bes BST | Pad taweo et YU me
it anoia'e one rw, bled ae biven
Bese ton kb Tomson tad eworta be .
, tale ses sea ie
4
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72 — 30888
CHARLES O'LEARY,
Plaintiff in Error,
APPEAL FROM
Ve CIRCUIT COURT,
COOK COUNTY.
COMMISSIONERS OF LINCOLN PARK, se
2)
ae
Defendant in Error, . “ae ite ae: 3
4
RE a¢ ¢ A gi be VW
Opinion filed March 3, 087.
MR, JUSTICE THOMSON delivered the opinion of
the court,
The plaintiff O'Leary brought this action in
assumpsit against the Commissioners of Lincoln Park, &
corporation, to recover salary to which he alleged he was
entitled, as a Civil gervice employee, from March 31, 1921,
to the date on which he started his suit, ‘The plaintiff
filed a declaration consisting of the common counts and a
special count in which ke set out the various steps by
means of which he came to be appointed to the office of
time=keepers pursuant to civil service examination, and
performed the duties of that office from April 1916 until
March 31, 1921, since which time he alleged he had not been
permitted to ocoupy the office nor receive the salsry
appropriated for its inoumbent; that on the last mentioned
date the defendant pretended to abolish the office and 80 noti-
fied the plaintiff, put the plaintiff alleged that said office
was not in fact abolished, but on the following day, one
schuidt was illegally appointed by the defendant, to this
same office, which the plaintiff had heretofore occupied,
with! te same duties attaching thereto; the defendant having
it
i }
eee 2) ag, ae es eee
5 igh, eases } :
tomsd at Thttaielg
MORE TARVIA at:
—_ RHTOO “TIUOATO
y¥PKIOD HOG
‘alle’ “Os © oC ee
eo aa
alta HLOOMT % > esawotdeni
etoTttd af tashsaeted 4 oe oats a
eo G Oe RA =
eTSOL ,& dota baltt sotatgd
to motmiqo eff boreviteb WOBMONT SOITTaaL a *
: ai aoltos sins tiguord yreed'd ttitatelg eT
& ,ited afoonid to axenoleaimmod ed? tantsgs steqmirens
new ed begelis od doidw of ytelee teveost of so.Ltertogres
_f8@r «fé dore mort ,esyelqme soivree Livtd a ee belt time
ttitaisiq off tive eit bettsiea ei do tdw a0 ‘etsb ‘ed ot
2 bee Btawoo nommdy edt to yuitefenoo noitsteloeb a petit
yd eqete avcitay eft tuo tee ef deidw at saves Istoeqe
to settto sit of Hatalogqs ed of suso ed toldw to ansem i
bas .sottsnimexe coivres Livio of tasweqq yreqeodmomtt
Lita £81 Litqd wort soitto saris Yo esttub edt Demrotzeq
meed toa bad ed begelisa od omti doinw sente ary its do telt
i
e0 . (sb yuiwollot eft mo tud badetiods fost at to, me
sidt of .tasbasteb od¢ yd betategqs Yilsgelii pam
she lqnane erototersii bed wereetedg edt dotdw °
area
illegally changed the name of the office to “assistant fore
man”, It was further alleged that the defendant had made
the usual appropriations for the office of time—keeper; that
no charges had been preferred against the plaintiff and he
had always stood ready, willing and able to perform the ser=
vices and duties of a time-keeper, but the defendant had re=
fused to permit him to perform such ditties since March 31,1921,
The defendant filed a number of special pleas,
one of which was to the effect that the office of time-keeper
which the plaintiff had previously occupied had been abolished
on March 9, 1921, and that the plaintiff had never made any
effort, by the filing of a petition for mandamus or in any
other manner, to review, vacate or set aside the order abolish—-
ing said office or to establish his right thereto, The plain=
tiff demurred to this plea and filed replications to the other
pleas, The court refused to sustain the plaintiff's demurrer
to this third plea and carried the demurrer back to the speobal
count of the declaration above referred to, and sustained the
demurrer to that count, ‘The plaintiff elected to stand by his
declaration, whereupon judgment was entered in favor of the
defendant and against the plaintiff. To reverse that judguent
the plaintiff has perfected this appeel., In the other special
pleas and replications thereto the parties had joined issue
on the question of whether the office of timeekeeper had been
in fact abolished, as claimed by the defendant but denied by
the plaintiff.
In support of shis appeal the plaintiff contends that
there was no necessity of compelling the defendant, by mandamus,
to restore him to the office of time#keeper because he had never
ae
esTek tosteiees" o¢ ssitto edt to aman sdz pogasdo yltagel rt
fi esbsa bad tasdastedb odt tadt begelis reds xalt aan tl 2 ee
ss tarlt pxeqood~smtt to eofttto edt tot emottsinqotqqs Lavan edt
r ed bas ttitaisig oft teatese2 bewretetq seed bad aey tsdlo On
ree od¢ mrotteq o¢ side bas amtilin ,.ybeer boote eyswis bed
~« bed tasbaeteb at tue etoqesdmonis 8 to geitub bas. ssoty
eo kSOL £8 dote% eonte settih dove mrotisg of mid $imteq ot beaut
geeelq Laioeqe to isdmva s belit tassaetebh od?
weenndnii te sottto ont tadt dostte edt o¢ sew dotdw to sno
hetiak toda’ need had betquose yieyolverq bed ttitmtafat ot do £ che
yas sham reven bed tiitmisia edt tedt bas .L8@L .@ Hoteif to
were at Te evanbase 10% noitised & to gaiitt edt. vd pirolte
adeifods sebro adt ables fee to etsoev ~weives ot renaas, nedto
etiisig, edt .,oteredt tigit eld, deiidstae ot to soitto. bise. gal
tedte od? of emoitsoliqes belit bas selq aint ov. boxramek tats
reTimeb eftiivaisic edt aisteye ot beastex ¢rua0 oat. yasela
Estosqe edt ot dosd rertumeb edt beixas9 bas. selg buine Bid. of
edt beaiateve Sos ,ot berreter eveds acivazslosb. sit selenite
i eid W baste ot begoele ttitaislq edT . «aves. add. o¢ norm
—s ei? Lo Tovst gi Aetetse age taamgbut soquersdw eto lt axs.Lo9b
tasagbu, ted? eazever of .ititaialg od tania,s bas Aombaeten
Ieivege tedto edt al »feeqgs ald betostreq aed, titaisle eds
«Sweet Bomiol bed aelitrag edt otered? anolteotiqe: bas seesa
: sed bed reqeod~omit, to seitio edd xadtedw. to soitseup. ont. ae
ol N@ beineb tud tashaeteh edt yd hemislo es neat
tenis abnetsos ttitaisla edt Lesqas atid) to troague watt rrr
eee ebasm yd ea ont ant Lfequoo to vites a on ea ost
se on bad od suuaed eqoodwontt ‘to soko odd ot wid @
Mtn sett Aan dat
rae
=
been out of the office. In our opinion that contention is
untenable, Whether the office h-d been abolished in fact
or the defendanthad merely pretended to abolish it, the
plaintiff by his own pleading shows that he had been out
of it since March 31, 1921. It is of course true that the
defendant has a right to discontinue any office or position
in good faith, if it becomes no longer becessary or useful,
but neither it nor its civil service board has any right
to continue the position in force and remove the plaintiff
therefrom until charges have been preferred against him and
sustained by the civil sefvice board in the manner provided
by law, Nor can the defendant or its civil service board
legally abolish an office or position temporarily for the
unlawful purpose of later re-establishing it, either under
the same or another name and installing some other person
in it. People, ex rel Jacobs v. Coffin, 282 I11, 599
ll dak, finding himself in the position of this plaintiff,
has established his right to the position or office involved
either by mandamus or other proper proceeding, he is not in
@ position to sue the municipality, and recover his salary
for the period he claims to have been illegally prevented
from performing the duties of his position or office.
It was held in city of Chicago v. People ex rel
Gray, 210 Ill], 84, that even where an ousted employee filed
@ petition for mandamus, seeking both to compel his reinstate
ment end the payment of his s2lery during the time he had
been illegally prevented from performing his duties in his
position it was obnoxious to demurrer in seeking two kinds
of relief, one of which, namely, his reinstatement, must pre=
cede his right to the other, namely, the collection of his
ane
‘gt moitnetaos tadt aciniqe tuo gl pee ods te te zed
goat at Botletfods ased pod soltto edt coitedh eldsnednu .
ae
oat Fi deticds oF bebaeterq yet ow bad? aabnetebd edt ‘so
fue need bed od tedt ewodla gathastg nwo eid ed Tebatelg
“Ring Ped ete Sarwoo to et FY .f8ee .fe dove sonia +t to
“pote ¥eog YO se EIT6 yas auntfncosth ot tiyit 2 ead tas 19 teb
(D Laiestd to Yiadesdelt egret on wsndo sd Xx LE CFs bdog Wt
¢dyix yas asd breod eoivree fivto ati tom ti szedtiem tud
. Viteatata edt scpmtt bas gorot at moitieeog oft. aumitacs of
: bas mid teaiage beristerq ased eved eogaedo Litay mor teredy
C babivorg tenase edt at brsod seivtss Livio edt we bontetens
pused solvies five eti 16 toebmteb sdt ago roi as. A
“eit rot Utzeroqued ois twaq to eoitto ae det lode } Silage d
shew edite ott niet Pdateemor rade! to snogng | Lirtwstew
Bay 7 * ve y oP Py) Be
MoBtoq resto. enon pabifatent | bas oman rodtons x0 be eae
ds.
Sa,
-@8 .{11 S88 ‘atttoo «7
“ Qtivatele eids to no tt taoq eds at Yoanid ‘gatbalt oro Vip
bap 4 Resta Og
" bevioval gottto ro aoittecg ont ot tig te etd horiet Idares esd
‘ uot
aa “at ton el ad egatbeesorg reqory ratito TO Simab mam vd tedtie
i 2 ge Tr id
yrsiae abd tevooet bas vebingtotave ode eue oe Sapasateoe bd
aaa “bot neveng Viagerit nesd ved of entalo od botzeq edt
: pis bite! boat Re Bee be
sotto 10 0.19 ts0q etd to aettub entt aainrotreg a oe
ya ep PLAES A
Dae salen sSemnaehtsenotten at bled-eaw g1 coe vents
ond} seyolgue beteve os. oredw. move taddy.98 yLLE- OLB “we
bad ed emit edt gaitub yrsise sid to raienestediiiinis
etd of settub aid cet ei mort ne agdiiotie Vitagatee ased
| eialt owt galieee at Terma ot suotxondo eaw ti aol? teog
oe oS 2a eriry
“hog fom HL imaainpivasnes etd vena sette Fe ono etetfex to
pn 2 : ee 2 €5h2° 22. ees Eos Bey i
« .ted¢o edt of toy in eld |
back salary, Since that decision, however, it has come to be
held that "no obstacle exists to the granting of complete re~
lief in one proceeding." People v. Coffin, 279 I11. 401;
MoArdle v. City of Chicago, 316 Ill. App. 343. The court
held to the same effect in the People ex rel McDonnell v.
Thompson, 316 I11. 11.
The plaintiff shows by his own pleading that he
was a civil service officer or employee, He was removed from
his office or position by the Park Civil Service Board, Before
he may be in a position to bring an action at law against
the Commissioners of Lineoln Park, for salary following the
date upon which he was ousted from his office or position,
it would be necessary by appropriate proceedings to which
the Civil Service Board would be a necessary party, to establish
that the position or office still existe and that he is legally
entitled to it, and has been,ever since the attempt was made
to oust him from it, City of Chicago v. People ex rel Gray,
supra; Gersch v. City of Chicago, 192 Ill. App. 190.
For the reasons stated, the judgment of the Circuit
Court is affirmed,
JUDGMENT AFFIRMED.
TAYLOR, Ped. AND O'CONNOR | J, CONCURe
ri ed of e090 asd df yrovewod ,soletosh stadt sonte pire
~@t stefamco to gniftasig sit ot ateixe efostedo on” ‘add bee
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cp H it are. mosgmost
Pe, om ted? gnibasiq nwo aid yd awoda Tritatelg ‘edt & thd
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edt gnivolfot yrsiee tot ited sloomii to sremeteatmmol: edt
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fegel el od tedt bae ateixe [itte sottie co mobttaog ont tid
eben saw tquetts edt sonte weve, ceed esd bas ett of beltitae
44 wont td tao of
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noe 48
tuoi ext to fomebut, ony sean: 4 anosset oft 10%
sbomrit ts ai" sadbe
CEMATTUA THIMOIUE cea tem Lm ct
- gitiD NOD. vey - sanop9 CHA a somut
Sa ie Oe ee ch a riProy eo
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| o™ - 30930
~ \ 3g = siuae
LEWIS-SIMAS-JONES COMPANY,
Appellee,
Defendant in Error,
APPEAL FROM
AND ERROR TO
CIRCUIT COURT,
COOK OOUNTY.
Ve
PETER PEERBOLTE,
Appellants
Plaintiff in Brror,
Opinion filed March 2, 1927,
_
GY eS
a bes = Ay wine @& he © be
MR. JUSTICE THOMSON delivered the Ae O oh
the court,
The plaintiff company brought suit against the
defendant Peerbolte to recover amounts due on three promissory
notes executed by the defendant to the order of R. 0, MeGill
& Co., and endorsed by the payee in blank,
When the case was first tried there was a directed
verdict for the plaintiff; on appeal from that judgment by
the defendant, this court held that the issues involved
should have been submitted to the jury and, because they
were not, the judgment was reversed and the cause remanded.
Lewis—Simas—Jones Co. v. Peerbolte, 237 I11. App. 647, The
case was tried a-ain and, on the second trial, the issues
were submitted to a jury resulting in a finding for the
plaintiff and an assessment of damages amounting to $8,451.13.
Judgment was entered on that verdict against the defendant;
the latter prayed an appeal but failed to file his complete
record in this court within the time allowed; he then sued out
oseok = Aas
SAS = BS
ted _ as fad o Set
iA br eB SE ae 2 “Yots
.totingaa
etosrd af pesbeeked oo ilo -V osbxaey
seine ris oe bled
wee
‘ i ae er TPN re ray eat Sh a ; #. nt :
stores of Tiivateld a
Pa ES bE Bea me ei Rae fs aaor
es .8SOL GS doraM beflt moiniqO . .§ «-\htrey len: one
aw n T ® gehen '@ wk) et Re, ad
Quirke rtp ay baravites MoeNoMY AO TTaTe Ril AL: a
SOE NS a Lieven ‘dt
vimienes od bivew, a
: 3 8 r tig ord HOO Titais .
4 ait, oats Ten ta i Aion se Lona ney
sel sored fie eh iafivingiiig ee a we 3
bevioval eavaet sat er tient tx woo anes
tid
we
a writ of error to review the judgment and, upon his motion,
the writ of error and appeal were consolidated for hearing
in this court.
The evidence shows that a concern known as
Peacock & Go.O0f Ghicago, owed a bulance of about #8,500 to
R. G. MoGill @ Go. of San Franeciseo, Both of these concerns,
as well as the defen’ent Peerbolte, were dealers in seeds
and onion sets. In December, 1971 and January, 1923, MeGill
was in Chicago pressing Peacock for payment of that account.
The business of Peaccck & Go. wag not doing well end they
were not in a position to make anysubstantial payment on
their secount with weGill é& Go, But, Peacock @ Co, held
two contracts each dated in April 1921, calling for the
delivery of onion sets to Peacock & Co., in January and
February 1923. One of these contracts was with Hau é Co.
This called for the delivery of 106,000 bushels of onion sets
at a dollar a bushel, The other contract with the Cooperative
Onion Set Growers Association, of which the defendant Peerbolte
was manager, called for the delivery of 11,000 bushels of onion
sets at $1.10 a bushel and 3,000 bushels at $1.25 2 bushel.
Delivery was due Peacock é Co, under these contracts at about
the time MeGill was pressing for the payment of his account.
At that time the price of onion sets had advanced to #1.50
and $1.60 a bushel.
After the plaintiff had introduced the notes in
evidence, and submitted testimony as to the amount due
upon them, thus meking out its prime facie case, Peacock,
testifying for the defendant, stated that he told NeGill
wo Cleo
pag oF
ghottow ait wequ .bas tasmgbet edt wotver of sorte 26 gees
gatzueed ret Se¢abiloance stew sannae Sane sastanats eaaterds edt
; Pits BS vag sey
an sWons wTeO MOD # tad awotia és aah and ont
eee: 008 ,at duocs te egasisd a bewo .ogaetdl “‘te.08 a sooos0t
‘3 ywuereon09 seoct to dtoe .opetomert ag to 29 too aera
absog rT wrelseb otew cnt Ledrae% taneaten att es tiow as
“fp fanen eee! erreunel bmx reer _ tadeaned at sagen £10 2st0 bas
stimooee tact te anomese ‘tot ddooget gaiaveng og0.td0 ak ase
yew ax flee yaior can aaw .00 2 Sopeet YW suostend ost
mo Fxomeey isitnstedswyas oxkan of molt iacg eat tom ot9w
Siet .o0 & Aoonset Woh = 60D & EE ipew apie sauces ttedt
sat tot guitar .166L Léxgd Ri beta’ igo evoattaoe ‘ot
“bas yeswoat ab 208 § doooeeG aa atee moise to yroviteb
fi j ami teey Peas tem
a 4 wad Adiw waw etoscr ae seal to wad of {ravrdet
ae ees eg Hebuo ee Had
— seine to etedeud 900,04 20 > wore edd to es aaat
i de va Pi
| alae ai te tHomyag oar Aalegununanpaaeetneien ulleall j
oat ot et ee Sanisainciet ode sake tet sA
a GAL gLeLER Saas tte BAe see Rete oad 9 OBut bas
ai Piet 8 Re ber than, are h
| “bea sus aiq od? * |
coe x TR eke — ba #
oat pmvens. 90 te ai re eta Eat 1%
ops oom sivat anise aft 3 |
JL tdoM blot ot rade main, ts
paneer
a ee ae ee
—3—
about these contracts and suggested that if he would wait
a little aamae his company would be in a position to liqui-
date its neienant with MeGill & Go. out of the profits on
the onion sets called for by these two contracts, but MeGill
was anxious to get back to San Francisco and was unwilling
to leave without some definite arrangement covering the pay=
ment of his account; that MoGill suggested that they enter
into some agreement coneerning these contracts and he asked
Peacock to produce them so that he could submit them to
his lawyer for the preparation of such an agreement and thet
Peacock accordingly delivered the contracts to McGill for
that purpose but without any endorsement or assignment
by Peacock & Co, Peacock further testified that he never
got anything from MeGill for these contracts and that MeG@ill
did not credit anything on the indebtedness of Peacock & Co,
in consideration of the delivery of the contracts, nor did
he ever return them, but that about the middle of January,
Peacock found that they had come into the hands of the de=
fendant, He further testified that both Rau and the Goopera=-
tive Onion set Growers Association made deliveries to Peacock
& Co. under these two contracts,
The defendent Peerbolte testified that on Janvary
18, 1922, MeGill came to him with the Rau and Gooperative
contracts, asking the defendant to handle the onion sets
called for by the contracts and pay MeGill the amount of the
indebtedness of Peacock & Go., ond divide any profit that
might be made above the amount of that indebtedness between
MoGill and himself "fifty-fifty". Apparently, the parties
made an agreement on that basis, figured the profit involved
in the contracts over and above the indebtedness from Peacock
~~
thew biucw ed ti tard Dedesguee ae -etomrsaey ‘ded “ttods
anit ot aciiteoq 6 ai ed bivew yaaquoe eit eae
ge etitorg odt to tuo 09 4 LiibeM Atte ren att evab
a Ififowk tud .edeasrince est seeds ve Paced uci’ radical soins edt
gat! Liwte aaw bas opstons rt ase of sip see 9% ot avo ina a2éw
oe oh
| “vad od? yaizevos tromegaeTts atintteb once sos ovens ot
ames * Sg
astae yodt teat psteegare Lilo 2 edt itauooos w. ond to taom
; ee Be
boise ed has e¢osts nso saad gatareomen fmonsorye once ofat
A2NQ GehaRe
of’ sadt timédte &Lioo ad tadé of wong ‘souborg | of 500.9%
ot
godt bas taemperee ne dooce te nostexeqe ty ont to% . ard
eRe ELE Busted Be
zat IL ton or edaent neo oat petevileb “gaibroons 40 doen sed
trou fear TO tismsetebae yas twoig tm tud seogreg { page
raven ed tant beitivast vodeeut soo 994 : 00 Ax sep
Iitpon sadt bass etoatt noo sands tet oom wort gahdeyne tog
9 & doooast to asenbetdebal ait 0 umide yan ttbeso 4 ton bth
‘bib toa <etestiaon adv to enews Im edt te notgexsbiemee > at
" ekrsunet to sibbis ads tyods test $ asd rd ere eid ie
oe meh ont to abnst od¢ tai emoo bastl voatt saute | baw? doo ooas
" mpnoqsoo edt bas vel ted suds bolticess codrtat “teas
Samah ot lwighdanion oben noitsinoees atowor a8 Bec Beck’
; oie
270.018 900 ont ses cadet 8
Dh usb aties Oe fants! . eae Una:
at ge ¢act delliteed stfovteet gaatasteh eaPy 6 '!: ste
-ovitsreqoo? bas s68 ed? atte mid of suno (orpox (Stef 86
stee notne edt efbasd o¢ taabasted ott gabten aieatnes |
fant saan ua. -sbivid one +09 Csr
ay § Bad, Pca De es #
: maented ale te
} Yeh SR ibe A Sha a
a atic out Stern stgnnegth
-
if
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-4—
& Co. to MeGill & Go., based on the then market price of
the onion sets and, in consideration of the assignment
of the contracts by McGill & Go. to Peerbolte, the latter
executed the three notes here in suit, for the half of those
profits due to NeGill & Go. on that basis. Peerbolte fur
ther testified that, at that time, he was in doubt about
delivery under these contracts and, for that reason, a
clause was written in the notes he then gave WeGill which
made their payment conditional upon such delivery, Shortly
thereafter McGill came back to Peerbolte with those notes,
asking him to give him three negotiable notes in place of
them, as he Was anxious to go back to G2lifornia and wanted
to be in & position to bank the notes. MoGill made this
request because he seid *you know there is no question about
the delivery now", and Peerbolte testified that he thought
there was no question at that time about getting the onion
sets and he, therefore, executed the negotiable promissory
notes here in suit, which were substituted for the original
three notes, the latter being destroyed at that time,
The defendant testified further that he did not
receive delivery of any of the onion sets under the two
contracts, As to the Rau contract, he said he asked for
delivery several times but covld not get it and then he
got in touch with Peacock and the latter told him the onion
sets called for under that contract were his, Still later
Peerbolte seid he secuted an extension of the time of
delivery. Peerbolte testified further that he was the
manager of the Cooperative Association and the onion sets
called for by that contract were wnder his control and he,
4 2 FS
te soita tedvam xedt otf co bead 4.80 8 LilpoK oF 4008
inommyiass eit te soligersbhieace at ,hoe atee aime edt
cottal od? ,etiodzeet of .00 & LLivet yd atoenince edt to |
genes to That sit sot eine mt oved eeton send edt bedmoene
=gut etfcdsse® .atesd ¢stt ao .00 & Li ipeu of exh agttng
tueda gdvoh at exe ad youtt takt ta ydedt. bethivood: rade
& ,novset tatt tol .bas atoattaes euedt cebay qaevtlad
ioide £1i0om oveg sedd of agton vd? mi nogd tae acu saueto
yltrod@ .qretiinh dove moqy Ismotetnnoe ¢aemysq miedd.ebam
yeoton Sect (tin etfodres4 of Aoed omes LIMON meshen cenit
te sesiq ui eeton oldsiteges eordt mid arig of mtd gabian
Setasw bas simrotifad ot seed og of anoizaa new ef. ee quiedt
eidd abam Sf iioM seston ont! dass oF moitteog anh 96 oo
erode moltasiie on at sradt wond vox" bisa ed eausosd deoupes
as ( tdguedt on tans nottitesd atfodreet ban sMwon yxav hist ‘ett
Gy ‘noine edt gaittey tueds emit tedt te noltaaup On ase econ?
“‘Yerelmota sidalseosen si¢ bevvesxe oveteredt get bas etee
; Taatig tre any rot betotivedue eroe sto hele ative wi erat ston
omit? tedt do Seyottesh galed tester ole -qheton sont
i rth ag hae evit
ton pib ot dade tadhedk betitteet tasbasves ode
ba ay 13 6 |
owt ait tebe etee maine ett to ene te querbtih Svisoet
et bodes ed biee of .tnerties wet add oh Ok! satosrt nos
3 ak edt bam th to tox Divoo gut amie Loewen yeerhiod
one solio edt min blot tertel edt San docoaet Ah be dosed et tog
Ngai f fit¢e Vale eraw soatrkaoo. tadd <chaw tot beliso ates
Yo emit ont vo nocanntia te Dunes of km aPtnbrene |
ey ee ee a ee a a I SR Te ee Pe ee ee, ee
Se ene a
of
himself, delivered the onion sets called for by that
contract to Peacock & Go., although he had signed and
delivered these promissory notes to MeGill in payment
of them and, that he made such delivery to Peacock,
"because they were actually sold to the company and
because I found out in the meantime how this contract
was gotten by McGill from Peacock,"
Fram the cross-examination of the witness Peacock,
it appears that efter his firm went through bankruptey,
the defendant succeeded to the businees of that firm,
Peacock testified that the defendant "took over my former
business, I stayed there and mwansged it with him." He
testified further that he had no connection with Peerbolte
at the time he was testifying. The evidence shows that
Peacock & Company went into bankruptey in March, 1922, snd
Peacock testified thet the first thing he did after that
was to sell pnion sets on commission. He said he sold some
for Peerbolte, He further testified that he went to work
for Peerbolte the latter part of June or the first part
ef July.
The record also shows that during the cross=
exanination of the defendant Peerbolte, he was shown @
copy of an advertisement which had appeared in the magazine
called "The Seed World® which advertisement hed incorporated
in it a letter addressed "To Whom it May Concerns" That
advertisement appears to advertise the business of Peter
Peerbolte, "World's Largest Onion Set Grower and Dealer," * *
"Wain Office and Warehouse, South Holland, Wllinois," and
“Warehouses at Desplaines, West Pullman, Franklin, Lansing,
Norwood Park» ®nd South Holland, Illinois." The letter
i
tadt wo tet Sefiss stee nélmo edf berovifes firegmid
Sigs bengis bed od davedsie ,.00 & sone8T oe Fostthee
daomesq at (ftpo¥ of edten yrosetact” sett berewtleb
atocoaet of yteviteh doye ahem ed Feit bus modd to
“Bas yasqude edt of bioe Ytfentos stew Yedf eabeDee*
fomrdaos elit wod settasew sax at to preot Y oemsoed
#3905 684 weit Fitpom wt metteg ew
ah od oe Ngee: ia By
sioeoss easadiv od? to cnetemtenereene | ont OUI caste saint
aWoiqurdned dguvetss toow wrtt ei cette tads anapaae, #2
_ need tenth Te essatend ott of kebeagowe tashaeten, ot
meer ye tere toot" Snahasteb edt, tant (bertitest, Jooosed
oR wit dtdv $2 Sepecom dan oxadd beyete 1 .eeontaud
-pbdodree’ dtir noltpesnos aa bad od tad? radpaut
tadt arose. sanebixve ect .gaiyiiteat aay od mit edt t
bas ,S861 ,dotst of yotqutdasd otat tnaw yraqwod 4 does
a base watts bib od yatsd tax tt ot faded _beptisest soooens
as ence biog sd hiss eh -aoteeinwon mo stee aetag Lies ool
drew of Josw ed fait. Heats ites ould eat on, bs sx20'
Ftaq tert? edt zo emit to sxeq wattat ody bedi <0
ay Ul Yo
_swanote adt pe bast esods ocala fueges wma re
A amtep nam 0d. getfodreed taedaatoh ‘dr Ye motgentonss
| SRRMOAE OEE 9h AONE had Shin, tenenmdiapene ae be peso
| *Eoteneqseoat bad tmemesiizeyhs dod “bite beee ee
tad? Marooned vsK ¢1mod¥ of * beoverbbs costes grind
TOTO SOMERS OG AEG. Ot STORER. £ i
“tt gear & a Ry Secs Mesh
Gn
above referred to was deted May 1, 1932. It read as follows:
“Having been well informed as to the position
and condition of Mr. Everett R. Peacock, and the
corporation which bears his name, as regards their
finanbial difficulties, I am pleased to advise
of arrangements having been made between Mr. Peacock
and myself whereby I can, and do hereby cheerfully
guarantee the fulfillment of any contracts or orders
for onion sets which have been taken for future
delivery, or which may hereafter be entrusted to his
Cares
It is my sincere hope thet Mr, Peacosk and his
corporation will eventually work out of their financial
difficulties, and in the meantime, I remain,
Yours verp truly,
Peter Peerbolte."
When asked sbout this letter the defendant testified that
the letter and announcement were used for the advertisement
of his business in “The Seed World." He said the letter
referred entirely to the next year's crop. He was asked
whether he was concerned about Peacock making deliveries
and he answered that he had bought certain contracts from
the receiver for Peacock & Company and had “taken a certain
amount of bushels for future delivery." Further, on cross=
examination, he was asked whether he paid for the advertise=
ment and he said he didn't know but he presumed he had. He
was asked whether Peacock was working for him at that time
and he answered: “He worked for me for some time." He
was them asked to explain to the jury, if he had bought
onion sets and guaranteed them for future delivery, ‘why
it was that the adverisement came out under the name of
Everett R. Peacock Company?” and he ssid he did not know
why.
In rebuttal, the plaintiff introduced testimony
tending to show that when Peacock & Company went into banke
, ruptecy shortly after the transactions involved in this case,
-3- 3 ’
| gewoflot es beet tI =.SSCL .f yet beteb acw ot berreter rene. 1
Line SEs qt Laemle "7
8
aig edt oy Bs . yiat Liew od. Re Sos aaa ag he FURS SP a eS
ds Bak doopket # t4ex80E" ve age tt bas
PR oe St 86 ,Smen et fo f PP seeER: re
stoke tt beubnte ax f ube: on esi eh
es docossi .tM spewted sham " peat fyed af. «
mat Yiiuitesdo ydsied ob bas a t fia Rite
ae atebte to atoati ace yaa te das £ as ea
4 sthivt of aedat aesd foams fun tA falne Gat
a aid of betautiae sd pi, onli wa doida to ASD. or
: alc bee deoossd «tv sedi sgof exeents.. "en
ss Setoaantt tiedt To tuo drow YLisetaeve 11} titrate “
eB efismer I .omitasem ait ai base seit iuoittle
r: eYiux t ‘av StuoY eae meee
s is a ie ve
ee wise Pf
tedt bektitass tosbastsbh ed? rettel stot tyods bedae oody
ss Snemendtrevhs sai rot beey oxew tnamsenvonns bas tattel edt
tottel sft Biae sk "brow 5ee8 off" af pacqteud Ada te ;
Sedge eam eH goto a'assy ¢xem ant of lex ites berretes a
avireviseb gaiten daoooses tvoda bemeeoaeo asw od rodteda
mort stoatinos atatres tdyuod bas esi tact berowens of bas
sisizso s ngust” bed bas yeaquonst doeoaet zok novisoe edt
“28070 mo ,tedtryi ".yrevileh exudyt rot te tavons
ae ye Peele ae
a “seitteves odd tot bieq sd redéedw bexan es# ed ,noiteninazs
Re SH ded of bemueetq sf tud wor tab ib od bisa ot bas fans
eutt ted? te mid sect 3aidtow ean doooasd taditedw betes eam,
SH “,omid owoe tot em tot bedrow of ibosewane od bas
tigeed ba od Ti .ytl odt of akefoxe oF bodes medd ean
yaw" yeevilob studvt tot ued? beetasrany Bite Wise olso
le ener edt tebay duo ones taomewteevbe df Pad? ow $F
| Mont You oth of Bikse od Bas eenendbrstes whine
Sor eee eer
sae ies Ses STATES
ee Se es ee eS Ply Se CMe |
MM ot todeass
a 3
wD ante’ >
ee ee oe a
. eet ends a Seviorat 3s
a. sk S ‘
ate
R. Oe McGill & Co, was not listed as a creditor, nor were
the onion sets "represented by these warehouse receipts"
listed as assets, Whether the onion sets referred to in
that connection are the same as called for by. the Rau
and Cooperative contracts is not clear, but that is the
intimation and nothing appears to the contrary, further
testimony submitted by the plaintiff in rebuttal was to
the effect that frequent demands had been made uponthe
defendant for the payment of these notesg and upon the
occasion of such demands the defendsnt always promised
to make payment within a few days,
In support of his appeal the defendant contends
that the only theory upon which the plaintiff could recover
is that it was a holder in due course and that when it
is shown that the title of one who has negotiated a note
is defective, it becomes the responsibility of the holder
to prove that he, or some one through whom he claims, got
title as a holder in due course, Such was the holding of
this court in connection with the previous appeal of this
case based on Chap. 98, Par. 79, Gahill's Rev. Stat. 1925,
This, however, is merely a rule of burden of proof, On
the previous appeal this court pointed out that there
was some evidence in the record tending to show that the
title of McGI1l1 & Co. to these notes was defective, in
that some evidence tended to show that MoeGill & do. did
not own and did not have the right to pledge these con-
tracts and, also, that at least one of these notes was
negotiated after matutity. Some of the evidence contained
in the former record, tending to show the latter item of
proof, is not contained in the present record, There is
other evidence submitted in this case tending to show
ms
}
ate
ero ter _xofibers 4 ee betail toa sew od & LLi00% Oo
‘etqieoat eauorer.ew apeds yd bot nenoxqox® ston nolne ets
ni of dewrotor afer woino sith codt ed stones am botetl
uasi of yo rot DeLiao 26 omae os 078 motsoenmee tant
edt eb tadt ted: yteelo tom st etoart nen evteersqoes bas
2 LET
rotited .yrartaeg edt ct axescan antitton aukimotehe ibn:
ever tak
ct sew Letsudex at Midmisty ect “d bodt Ladue qnomtsess
-edtmoqu abam mgad bar abaaush saowpord tas. toptte edt
Laney og we)
edd moqu fre gemton aoodt te daomyeq: ‘ed tot tasbasteb
heaimotq eyanwis juabnehes odd ebasmsb dows to molascoo
weyab wet a middiw: tasmysq edse ot
ae net! Bag
“ebast.ir00 tmebsasiebh odd tneeee obi te freqque al
F La LEGG mht
Taveost blioo Ittatela anit do dw nog yrosds qine edt tas
ig EE hee yen a ees
ti node dade bas seturos sub at zebfod b env tt sade al
oven £ hot altos on sar alw ono 10 ‘eftie ods tadt anode eo
24 ary % S & ae +e)
tablod gefit te Wi Lidtemoqest ae e909 90 th evitosteb "a
‘ od Oe Gers sey eyes
“te vemisfo sid mow dyvords ono oimoe x0 ‘ot tae svorq of
Bae ty Sane es 3 wierrosse
Yo gaibfon odd saw owe 29BTWOD ees) at robLor & es oftit
AU eis sais sale wit
Gh Fa ea Taw
mice stare von eritidee .@v 08 ae asi al boasd eea0
CASH ASH
mG .tooxg to nabrwd: to elus s ston ak “grovanod | eld?
Sap isha a Dien
eradt sad Pine hataiog tru00 pict Lascqs
ard tent wore ot gathnes brocer ont at soasbive emoe
7: Levitate aan nado avedd ot -00 & LILDoM eltit
bab - & 1L3o0K tet wode oF pebaes yt gle g Beg hls
‘Taco seeds Ugbtle of #égix ont avad dom bib ‘ae phe ‘ton
aaw eston aeedt to sao tecol ts stadt ,oets .bas atoatt
Realetae sousbive sit Yo on08 “tituten 19 %s betsitogen
oa oi to meet seo athorenenteanane neem mtn
Ss oH ghitode .
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re age e helae ~~ }
Ce ee ee ee
Se
4
hie
that MeGill & Co. did acquire title to these contracts,
In the opinion filed by this court on the previous
appeal, efter referring to the evidence as set out sbove,
this court held that the questions involved should have
been submitted to the jury and, therefore, the trial
court had erred in giving the jury = peremptory instruc
tion for the plaintiff. 06, the retrial of the case there
was again sone evidence tending to show that the title to
MeGill & Co. to these notes was defective and there was
. evidence to the contrary. However, on such trial the
sontroverted questions were submitted to the jury and
it is not contended that their finding is asainst the
manifest weight of the evidence, nor, in our opinion,
could such a contention be made successfully, in view
of all the evidence in the record.
However, we are further of the opinion that the
rule as to the burden of proof contained in section 59
of the Negotiable Instrument Law (dehill's Rev. Stat. Chape
58, Par. 79) which the defendant seeks to invoke here in
his favor is not one of which he may avail himself, because
he became bound on these notes prior to tke acquisition of
the alleged defective title in them, After laying down
the rule as to burden of proof which the defendant seeks
to invoke, the paragrebh of the statute in question con-
tinues to say, "but the lest mentioned rule does not apply
in favor of ® party who became bound on the instrument prior
to the acquisition of such defective title." Woodlawn Trust _
& Savings Bank v. Donaho, 239 [11. App. 158.
=Qe
vatoat ten seed? of aftit etivpos bih .od & ‘ftow teey
avetverq edt ao tisso aldt yw BeriY mo teitgo ed ot
eves tuo tee as epnsbive ode of yabrrstet’ wenn
evar bivoda bevioval enciteed edt ade pied Puioo at
leict ont eorotetadt abae yea, ett oF bedt iad eed
~ourtent vrorqne red s yu, edt gatviy at Serté “Bat ftleo
wrodt aseo odt to Lalttex and nO. ttigndatg” auf tot mors
of eftit ost tad} wode of satbast ‘sonehive ond aléy® toe
saw oxeds bas ovitostesh ase edton eeédt oF! 00° 8 I Etbou }
edt Isitd dove ao ,t9vewoH .YTatdade ad? of ‘sonebitve -
bas yiut edt o¢ hettiadse orew cacitasue betroverties:
ett Jentezs al gaibatt tiedd tadt del | tou at tt
‘—amotaigo Tuc ai .ron .soasktve ent. to tgten tical
waiv af ,vflutessooue, ebsm ed moitastnen « pun, haves
Hiooet aft at aonb ive edt co ‘te
is Mace
bc re ie
Te ee er te” Seay Seiad
rae i
v
G
:
RE «¢
es “eds fade soiaiqe edt to teaddtut eta’ oy jnutueeneteb eh
| “ea mottos nt bsaiatneo toorg to ashtad “OHy OF “ee O Lot i
ano tage os; at iftded) wal ¢abmettank ofdateogon ‘at te 8
mk ened exovmi of asigsn tnnbnatsh sitf doddw (89 tat 88 :
‘esuased eMeemt d fievs yam of dois to So fom ab rover” etd
te moitiatupos edt of tolnq eeton saert ao BaUeE <a od
_, arob gatyst metta ,modt ai ofthe ovitooted beys ite’ teedt
| : ailese tasbast sb ade do tde toorg to cobtud of soos
_— aotgaoup at stutata edt Yo Keforrg ex aq ‘edt exiovat #@ 3
lees ton aseb olus benolsnem fasr off tud* Vee! be biome .
‘totzq #noawateat ott 0 haved sweesd ote yttaq # ¥0 ‘cove? at
gees oritostes fou % nore betta St © ot
* LOTR BOF wie ios yo ~
°
x Se v i ’ ‘ ‘4
SNR AS SAAT BL RRO aE a
WE eet |
==
In further support of the appeal it is pointed
out that the court instructed the jury to the effect that,
where one takes a promissory note in the ususl course of
trade for a valuable consideration, before maturity, and
is not guilty of bad faith or possessed of knowledge im=
peaching the value of the note, he would become & holder
in due course and the note will not be subject to defense
of failure of consideration in his hands, This instruce
tion then went on to tell the jury that, if they believed
from the evidence that the notes here in suit were trans=
ferred in good faith for a valuable consideration, before
maturity, and without knowledge of facts impeaching their
validity on the part of the plaintiff, the defendant was
not in @ position to defeat plaintiff's suit by showing
that the notes were given without consideration or that
the consideration had failed. It is contended that the
court erred in giving such an instruction to the jury be-
cause there was no evidence in the record upon which to
base it.
In our opinion the defendant is not in a posi-
tion to urge this matter 4n as much as it does not come
within any error which he has assigned upon thé record,
Moreover, the defendant submitted and the trial court gave
an instruction which was the converse of the one submi tted
by the plaintiff, of which the defendant now complains.
By the instruction submitted by the defendant, the jury
was told that, wmless they believed from the evidence that
the plaintiff became the holder of the notes sued upon
before they were overdue, and that the plaintiff took
them in good faith and for value, and without notice of
any infirmity of the notes or defect in the title from
~Qe
Setatog af ti iesqqe sit to tregqve redtxst af
waedy gowethe ed? ot qriyt oft Betottent yoo ed? tat tuo
to saxveo layer oft af oton Yeovelmotg 8 eeiet sno oxeity
bas .Yirutes sxoted wettevebtenu’ sidavisy 2 tot ehate
~mi sgheiwonl te beaeveraog co Mette? Bad to yittteg tom ek ig
f:
‘ ; ies ti ve" q
_ | tebLod 8 smeosd hfvew et .ster edt te outer odd galdd seq 4
i eenetsh ot gastdys ed tom Lliw eter “eit Bas eetwce oub Al
~ourtegi aidt ,ebasd eld at aditerebience to omilts tt to
Bevatiod yedt 2 feds yt ode Liey OF dé PhO a
i ~enet erew tive at sted esten oft t4i¢ eodehive edé moct A
4 | stoted .noltarsiiames sidaufsy = tet mt8t boos af Betts? 4
i. tiett yaidoasqmt stost Yo aghatwort teodéiy bas .yeltwdan j
a eaw dashreteb etd .ttitetaly ody tw traq ete no YWibtiev ;
ie aainode Witise e'ititatete testes ot wotvieed ni dae
tere TO coltsrsbisaon tuoddiw sevig evéw eoton ed} pads :
odt tact bebastaom at #€ vha list bad aottereptenoo on}.
~ed YIwl edt of avitouttert as dows ‘gaivig at berre tryoo
‘ot do i tw sess bressz ent at soasbive on saw ox9dt e6ya0.
sth gaa
~iweq s oi ton ef tasbasten aay woinige +96 ‘on naa ina
smen ten s90b tt es tom we ab rottsn wide yt OF mole”
broves mit adqu femyteas asd od dite torte yu Wedd
8v8g gruon febxt eit bas bett tadwe sesbdetss odd \eevesroM” 4
battiodue eno alt to serovacs sit ean do tie nottountent as) é
taielquos won Gnatneteh oft dotde te \ttivaten ede yd
Vault dt .ousdasteo ont yd dotdingis aotiourdunt edd ya”
_tadt: sonebive oat mort Devetiog yout eb ta <tadt —,
_ stoq Dawe aston oat $0 xen Ton ot omsoae roth misty 9c
Hoot Ititaiesla eft tedd bes pexrbrs one
to soiten tuodtiw bas ,aulev 20% bas aghest how at aot
mont eftte sue mi footed ro yates edt to ‘Wim
bi pas eae es
-10-
the one from whom the plaintiff received thea, then the
plaintiff was sot a holder in due course. In such a site
uation the defendant may not be heard to complain of the
instruction on the same subject submitted by the other
side.
For the reasons we have given the judgment of
the Circuit Court is affirmed.
<
AFFIRME De
TAYLOR, P.J. AND O'CONNOR, J. CONCUR.
CME Se SS aia PRET ae
Pe es a OL a mn ey sd pane” 4
em MaRS Roo: eee
bts he iba de tae ae ie dy tag AG ‘ , (
‘bret | BENS gs iy Mets : fies ibs Siti As Wat beso 620 i
ee
ee ee eee ae ee
ae ie te aS a
Pee MRE AES SAGER So Seats Seapenni
PO NR ah bea ap i wa amtntin GN i ie lag pala
ORE AN SCM BOLE See eh Rae ait ita Me | aA a
eh ORNS “om i) tent secie:
Sit Th ein naa sent
Yo Wh Pate Dann dg Sen cant
288 = 31108
FRANK KLANDER,
Appellee,
APPEAL FROM
Vo SUPERIOR COURT,
COOK COUNTY,
8. Ae COHN,
Appellant.
reoh 2, ve : <p |
Opinion 54 'F" ‘ 33
MR. JUSTICE THOMSON delivered the opiniOn of
the court,
The plaintiff Klander brought this action on the
case against the defendent Cohn, in the Superior Court of
Gook County, to recover damages for injuries received when
he was struck by an avtomobile being driven by one in the
defendant's employ. The issues were submitted to a
jury, resulting in a verdict for the plaintiff and a judg
ment against the defendant, in the sum of $7,500, From that
judgment the defencmnt has perfected this appeal,
Only two points are urged here, First, that the
verdict and judgment are against the manifest weight of the
evidence on the issue of contributory negligence, and sedond,
that the argument presented to the jury by counsel for the
Plaintiff was improper and prejudicial.
The accident in which the plaintiff received the
injuries involved in this case took place abot 10 o'clock
on an evening in July, 1923, on Irving Park Boulevard in the
City of Chicago, That street runs east and west and is some~
what wider than the average city street at the point where
this accident happened, It contains a double track street
ear line. The plaintiff boarded a westbound street car at
2 . . : sole - see
Ph oe
ae : OD ee ELOqAte foot om oat
be BOWE Jaret :
: ~ ; 3 : Mh SPN ae x titetate
ct ePetOo HOLwRaGTE het ih: eh ay Hy 1
OA j is : owe ae USS 2X aby ee WG LB ges ‘
YPHUCO #000 ete fo ray
a 7 : a
We stat foqek byrne
Pegptr 10 LetierO oe, ake ae
«SEO. EES
Sa to a9inigo edt beveviteb ROBHORT ‘worrey sm
| si Slt
edt no moites widd tiguord rebmsila Tiltateiq OF. ood ¢
to taovod totteqye edt at .adeo tmmastebh aly Faniegs e880
teny bevtess1 asixutal rot segamab teveces of <¥mUved Food
edt af sno yo asvith gaied efidemotua as yd sports. o9m94
s ot bettimdyve ctor asvesi OMT syolgus 8! gashaeteb 3
~gbut 5 bas ttivaisic oft rot ¢ofbxev & mk gat¢iveor qytwt ;
taste mort 008,59 Yo ave et at .Paanaatod ont tantegs tom :
sfesrqe eide Sotosttaq aad tna oetebh oat Sepmapet +4
4
eft tedt .¢etii .sted begty ete statog owt tia0
edt to tdyiew testiasw edt tentage ene tremghst bas totbroy
ebroves bas .saset igen yrotudixémes te sweet edt mo epnzbive
eae Tot fsanuos ye yxut sat ot betaseote Fasmagte voi
-teteipatere bas tagorgnt eeu tite a
oa,
Odd bevisost tlitmisly ast dotdw at tmabloos edt ae a
Mpelo'o OL tumds soala doot 9250 eidt m2 hoviovnt ete | 4
edt at brevervod ixai yatv2t ao .E8L .efut at antaove ,
: nance ei bas teew bus tess sour teste tant sogeotdD eo
my
oredw Sntog edt te toorts Wie sgarens ont nnd
priinaeelioentetes -bonsoqs
-2-
the corner of Hoyne avenue, a north and south street intere
secting the boulevard at right angles. The next intersecting
street to the west is Leavitt street. Midway between Hoyne
avenue and Leavitt street another north and south street
known as Hamilton avenue extends from the boulevard south
but not north, The car which the plaintiff boarded was
crowded and he stood on the step of the rear platform, Shortly
after the car left Hoyne avenue, the plaintiff's straw hat
blew off and at his request the conductor stopped the car
at the corner of Leavitt street where the plaintiff got
off and the car went on, The plaintiff then started back
to find his hat, running at what the witnesses generally
described as a “dog trot," directly east in the north road-
way of the boulevard, a foot or so north of the westbound
street car track, About this time two automobiles were
being driven west in Irving Park Boulevard, in that roadway,
One of these westbound automobiles, to which we shall refer
as the south car, was being driven near the street car
track, Several witnesses say that it was within the west-
pound track or straddling the north rail of that track, It
would seem that the one in the best position to state just
where that car was being driven was the witness Lunkes who
was driving that car, He testified that his left wheels
were a foot or so outside of the north rail of the westbound
track, ‘The other westbound automobile, to which we shall
refer se the north car, was being driven over near the north
curb, That car was being driven by one Clamage, and he had
two brothers with him in the car, one sitting at his right
on the front seat and the other on 4 rear seat. The drivers
of both the westbound automobiles saw the plaintiff's hat
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blow off and fall into the street, and they both slowed Up.
The south car had been obliged to stop at Hoyne avenue, by
reason of the stopping of the street car at that intersection
and it started up when the street car left that pointe It
dees not appear thet the other car had stopped at the inter=
section, It seems from the evidence that as Lunkes was slow-
ing up, the north car came along and passed the south car
and came to a stop where the hat was lying, and Clamage's
brother who was sitting in the rear seat of that car got out
and picked the hat up and then got back in the north oar,
Both westbound automobiles then drove on for a distance of
about 200 feet, at a comparatively slow speed. The testi-
mony of substantially all the occurrence witnesses was to
the effect that as the plaintiff came back along the street,
looking for his hat, he was directly in front of the path
of the south car which Lunkes was driving. The drivers
of both cars saw the plaintiff from the time he got off
the car until the accident happened. He came back along
the street until he was within a few feet of the front end
of Lunked@ car, About that time, according to the decided
preponderance of the testimony, both these cars had come
to a standstill, They were about opposite one another; and
Lunkes testified that if Hamilton avenue had extended across
Irving Park Boulevard he would have been at about the east
crosswalk of that street. The plaintiff testified that as
he started back after his hat he did not notice anything
coming toward him at first, but as he got near Hamilton
avenue he saw “some machines* coming toward him. One of
them, apparently referringto the south car, he said was
coming "pretty close", and he held out his hand and alled
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out that he had lost his hat ar@und there somewhere, At that
moment, as already stated, both northbound automobiles had
come toaa stop, according to the preponderance of the testi=e
mony; the plaintiff had either come to a stop also or sub=
stantially so, and had reached 4 point directly in front of
the south car and a few feet from it, when he heard someone
call out "Here is your hat", Turning in the direetion from
which these words had come, which was to the northeast, to»
ward the curb, he saw the narth car standing there with one
of the Olamage brothers holding his hat toward him from the
rear part of the car. The plaintiff testified that the lights
on the south car were burning brightly and that it was only
after he heard someone call from his left, "Here ig your hat,"
that he noticed the north car standing near the curb. He
then started in that direction to get his hat. When he had
walked a few fleet, = some witnesses say more and some say less,-
he was struck by the defendant's car, which was being driven
west in the north roadway of the boulevard. I+ passed between
the two standing automobiles, struck the plaintiff and inflicted
the injuries which are the basigs of this action, The defend=
ant's chauffeur testified that he was driving 12 or 14 miles an
hour and that his car did not go more than 5 feet after striking
the plaintiff, A brother-in-law of the defendant was riding
in the car at the time and he gave testimony tending to core
roborate the chauffeur, On the other hand, witnesses for
the plaintiff testified that the car wes being driven at a
speed varying from 25 to 40 miles an hour, and the distances,
given by these witnesses, which the car traveled after strik-
ing the plaintiff and before coming to a stop, varied from 15
to 50 feet. It is admitted that no warning signal was given
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of the approach of the defendant's car, lLunkes and the
Clamage brothers testified t's t the first intimation they
had of the approach of the defendant's car was when they heard
the screech of the brakes, just before it passed in between
their cars and struck the plaintiff,
The plaintiff testified that after he heard some=
one say, “Here is your hat," he took only a few steps before
being struck; but he also said he thought the right fender
of the defendant's car was the part that hit him. The driver
of the north car testified that the plaintiff was just about
to take his hat when he was struck, ~ "he was reaching out
to get his hat." This witness also testified that he thought
it was the bumper that struck the plaintiff,
The witnesses differ as to the distance between
the two standingeare at the time the defendant's car passed
between them and struck the plaintif—. One of the Clamage
brothers said there was "just enough room between the cars
to permit another to pass, Another one of these brothers
said the distance was eight or ten feet. ‘he defendant's
driver said there was two feet between his car and the south
ear and three feet between his car and the north car as he
passed between them, The plaintiff said that as he heard
the call from the north car, and started over to get his hat,
® I looked and I didn't see no other car,” He also said
that the space between the two standing cars, "looked to
me t@ was impossible for a car to go through." He said he ~
did not see the defendant's car until it was three or four
feet from him. He was then asked: "Go you do not know
where it came from, do yout" and he answered, *I don't
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know where it could come from."
The defendant's driver and his brother-in-law were
the only witnesses who gave any testimony on the course taken
by his car just before the accident, The driver was not en-
tirely consistent in what he said on this subject. He testi-
fied that the south car was in the tracks, and he was driving
in the roadway and north of the car in the tracks, On cross=
examination he testified that he was not driving directly
. pack of the south car, but two or three feet to the side
of that car, He was then asked: ‘Well, part of your machine
was back of him wasn't it?" His answer was: “after we had
crossed Hoyne avenue, yes gir," The next few questions and
anewers were to the effect that as he followed the south
oar after leaving Hoyne avenue, part of the defendant's car
was back of the south care The defendant's driver testified
that the south car had not stopped but was still moving when
the plaintiff “jumped out in front of him." He was then
asked when he drove his machine to the north, and he said he
didn't turn it to the north, He was then asked how he could
pass the machine that was ahead of him and he answered, "Well,
I was along side of him." He was asked if he hadn't stated
that patt of his machine was back ef the other one and he
said it was, “at one time," and he then added, "up until the
time we crossed Hoyne avenue." Ten this subject was gone
over again and he stated that the defendant's car never was at
any time back of the o@her car,~ Tt was along side of him
going side by side from the time we left Hoyne avenue. uy
front wheels were about at his rear doors*
It was for the jury to say, on ail this evidence
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= Ten
whether, in their opinion, the plaintiff was guilty of negli-
gence which proximately contributed to the injuries he re=
ceived, It has been held in a number of cases that it may
not be said to be negligence per se for one pass over a
traffic crossing without looking. The questiom presented
in such situations is whether circumstances were present
which might reasonably be said to excuse the failure to look.
In the case at bar the plaintiff says he did look but he
did not see anything approaching, It might be eonceded that
the plaintiff was careless when he Left the street car and
deliberately ran back in the roadway of the boulevard against
the line of traffic, although he saw the lights ef an autoe
mobile approaching. But that situation of danger did not
result in his injury, ‘The driver of the south car came to @
stop, according to the decided weight of the evidence, end as
the plaintiff stood or was walking within a few feet of the
frogt of that car and when he heard someone call, from the
north side of the roadway, “Here is your hat." he was not
in danger. It would seem that the question of whether the
plaintiff was guilty of negligence proximately contributing
to his injury, must be judged by what happened after that
time. After a careful consideration of all the evidence in
this record, we are of the opinion that this court may not
reasonably say that the econelusion whieh the jury reached on
this question was against the manifest weight of the evidences
In other words we believe that there are circumstances dis-
closed by this evidence which might reasonably be said to
have excused the plaintiff in his failure to observe the con=
dition of the traffic, so as to avoid being struck. He was
in the glare of the lights of the south car. He suddenly
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heard the call from the side of the roadway, ~- "Here is
your hat," and upon looking in that direction he saw the
north car, from which a passenger in the rear seat was
holding out his hat. Both these cars were in the north
roadway at a stand=-still, according to the greater weight
of the evidence. The question of the space between these
two stending cers and the position of the defendant's car,
ae it was coming from the east, is mot entirely clear.
T,e evidence is to the effectthat the two cars that were
standing in the roadway were about opposite the east cross=
walk of Hamilton avenue, As we said in Elliott v. Trandel,
227 Ill. App. 359, quoting from Stack v. Hast Sto Louis &
Suburban Ry. Co., 245 11, 308, "It was impossible for him
(plaintiff) by the exercise of a sufficiently high degree
of care, to so discover the eastbound car and not have got
in its way. He had, however, 4 right to rely upon his sense
of hearing as well as of sight and to expect the appellant,
in running its car past another car, stopped for the dis-
charge of passengers, to give warning and observe the ordin-
ance of the city in respect to speed. While the negligence of
the appellant did not relieve the deceased from the necessity
of exercising care for his own safety, it is to be considered
in determining whether bis conduct was such as an ordinarily
prudent man might have adopted under the circumstances, and
that question was properly submitted to the jury." Applying
that to the facts presented in the case at bar, we are of
the opinion that this plaintiff had @ right to rely upon
his sense of hearing as well as of sight and it was for the
jury to say whether he was guilty of contributory negligence,
aa~
ai s73Hh" ~ ,yawhsot odf to ebia edt most Lleo edt. caneeil
ets wee of gottoatthh tade of ga@isooLl. Mog bes. Aad wo TOY
gaw dees user adt ob teymeeesg « doidw BOET » (THD, - denen
dtron oft of siox stad s2ant. stot ,bsi eld $i0 gmbh Lod
tdgion ressetg oft of gatbrosoa .iitte~basta #6, ts yaahsor
anedy agentes | e08qs ont te, i eal aa? se ROMh AN? ous te
giao etiaehastsh ode Fe meitieog eat bas area. salbaste ome
_wtseto Rleti¢tas tom, 2i .tra® ody mort gatwoo naw tt ‘8
e7ae tedt ates ows oft tadtdoette oft od at sonsbive ont
~yaete dace off stieegge tvada atom ysubsoy odt ab gatbacte
pdobaswh <wg2elL18 at dies ow ah .eusevs sotlinad todiew
RB gtved 98 toed .v desde mort anitoup C88 -.qqh oL fT VSR
wid 20% oidiesoqmt asx #f" {908 Li 89S. 20d) UE medeudne
setyoh dgid eLtaetertive « to eainzexe ode yd (Yhttmtete)
. #@g oved tom bas 140 davedtese sit reveoeth og ot e749 Yo
eanse aid aoqa ylet of ddgit a yrovewod bad oH .yew ett at
stazilongs edt tosque ot das tigi le aa Liew ee qaiteed to
ald edt rot heqgote 180 tedtens ¢eaq te afd, antame at
~athuc out evreadoe bas yaintsw oyly oF <Srogaeeesg te egrado
| Q % seceyiigna ot elidy .booqe o? tesqaez ai ysio. odd Yo e0ns
Utesecen edt mort heumeeeb ody eveilen ton bib smallecgs: ot
| bereblanes ad of af tt yutetse ane aid rt one gatedotoxe to
| Uitantore nm ea dove saw toubaoa sid vedtody gataimreseh at
e “fies wesonatemgotio en? tebay betgebs evad ig io nee toobsrcg
4 se ttst edd of battiedse yYinegorq ase soiteesp tadé
hh onaceetsgund. ea cenee edt at betneserq stost edt ob tds
| iene kn aA Hei i Aisi
Shs te) Saw te bas dg te tons Liaw es gaizeed toes
2. _ ete Fs o - ste
Rete se 3-2 ° Aus ees
=e
under all the circumstances shown by the evidence, it being
conceded that no warning signal was given and that nothing
was heard of the approach of defendant's car until the sereech
of the brakes whin it was a few feet away from the plaintiff,
One element fo r the consideration of the jury in this connec
tion was whether the plaintiff was reasonably justified in
bis thought that there was not room enough for another car
to come in between the two standing cars, or whether if,
in the opinion of the jury, the evidence shows there was
sufficient room for another car to pags, the plaintiff might
even then be considered as exercising a reasonable degree of
eare for his own safety when #11 the other facts wete taken
into consideration, such as, for exemple, the fact that
the two cars which had come to a stop were at or about the
east croeswalk of Hamilton avenue, when, in the view of the
jury, it might reasonably be assumed by the plaintiff that
the driver of any other vehicle coming up from the east,
would observe ordinary care and either come to a stop himself
or if he attempted to pass by the two standing cars, under
such circumstances, would do so with his vehicle under con~
trol, or at least would not be guilty of such negligence as
the jury would be justified in believing was the case from
the evidence presented.
The contention of the defendant relating to the
argument presented to the jury by counselfor the plaintiff
is twofold, First, that part of the argument is complained of
wherein counsel made reference to the defendant's nationality»
and second, it is complained that counsel's argument was
inflammatory, in hat it was to the effect that plaintiff's
~.
wil)
be oes p a
en
gated tl ,somebive od? yd awode avonstemyotto ot. ts rebaw
gaidten tseit bas aevly eae fangie gaimzew cn ee
: poostoe edo (Citas to ettasbseteb to desorqge od a —
sttitaislg edt mort Yaws vaet vet s sew ef sade esiard oat 0
~osngeo eit ai yrst edt to soitesehienco ont t & smnole en0
a mi bsitifert Yidencsaer sew teed isle odd redtedr voy “wolt
; £0 tedtons sot dgsone meot ten asy erent tadd sdyuosts tle
“ «ti sodtedy TO ,Bteo gatbaste owe nett neous od al oaco 03
ie usw sxedt avons oo ash fv ant evtet oat Yo mp kge oat ©
tig ha tiitalale say «8B8q ct TES redtons rot Rety tao2o2 Thue
on. serged eLdecoaaes 8 gfietoToz® 28 bexobisace od Res Me nye
Sa
aa aout etew atost redto edt {la pra vtolse wae ‘eld rot 9ts0
Gd bad: a or
tact tos? odld eoigusxs Tot .Ba dove odds
Pama satay
ms R. Bika ah he aha
as eit tueds 10 ta stow gota s of emoo bad fo tetw exso ont ot ot
edt to wotv od ai ,gedv .sunevs motlimell Yo _XLewa207 tease
aa a
‘Sadt Tidsaisic sit yd hommes od idenonset tap in, et aut
. tae, edt mort qu yalmoo elo idey tendo wma te tevith
ii Pests ae
i, ‘tisemtd qote 2 of omen tedtio bas exes vesatbre |
Be £6 WEES pt ges
Saba .ateo paibaate owt odt yd sasg ot botquesta od 3 10
es eee . sla
_ oteo robs eloidev atd dtiw oe ob bivow 2880.08 fey
f rt ERG 2 a x iby Og
_ SB eomegitzgen dove to ytling ad tom biuow tase 3 @ sleet
es week 4 ed
- mort eee0 od? aan goivetied ai doftiveyt of biuow yuu ont
bee senweq sonshive edt
SR SHAR seg
Gi of galtaler tnabasted sa) Yo mottastaos easy foe
oe | PMieeiele edt reRLenmico ‘YS Yret ond of doeaseeTy taommyte
«Yo bewkelquer ef taommyrs one to dung todd (tenet sbLotowt at
pean a'tasbasteb off ot beseidbtiibminaiesieantesioninind
(Raw tnouugts et Leansen $9dt bemksiquos 92 91 <haepea has
(Nt atele tart toette oft of aww oh ted al gmt fink
=
-10-
“very life" was at stake; that the case was about to pass
into the hands of the jurors for a final determination of
whether the plaintiff "shall walk out of this courtroom with
compensation for the very, very serious injury that he has
sustained or whether he should leave this courtroom without
a nickle and you should consent to acquit the defendant in
this case, * * * JI say to you that you know this mn is
placing his very future and his very life in your hands,"
As to the first point urged against counsel's
closing argument, it is urged that an attempt was being
made to direct the attention of the jury to the fact of
the defendant's nationality and "endeavor by subtle means
to use that fact against him.” As a general rule, it is
best to avoid all reference to the question of nationality
of either of the parties to a law suit, We are of the
opinion, however, that it may not reasonably be said that
counsel for the plaintiff by what he said, was endeavoring
to prejudice the jurors against the defendant because
ef his nationality. In this connection it may not be
amiss to observe that counsel who made the argument against
which this contention is made was himself of the same nation-
aloty. What it would seem, from our examination of the
- atgument, as it appearsin the record, counsel was saying
to the jury was that the three witnesses, the brothers
in the north car, who had come to testify for the plaintiff
and against the defendant, could not be said to be over
zealous in the stories they had told in the plaintiff's
behalf, because they were of the defendant's nationality.
~as~
apog of tyoda ast ses odt tadt jedste ts eaw “odtt vray!
«fo goktamtureres Lent? » 10% exo) sit te sbaad ody otmt
—— sigtw mpoxtuuog aict to tuo Alsw Ifada" Tiitalalg edt sodéedw
ee esd od geld yrubai evelxee yrov ,yxev oct a0% aolsseans,
duodtiw moottiuos atdd eval biuode ed tedtedw 10 Bt rl
: ab iaghaoteh pat, dkenge ot sagacer bivede soy bas biota s q
ay pi stax eidt wood wor état oy of Wak * *% "seem ehdt
4 *ebasd iwoy ai eltl yrov eld bas exude? yxev etd gatoata
At fennuoo tantegs boyww faicg tertt sdf of ek | ae
gated esv gamoste na tad? boytw at $2 .tasniugté gatsofo
to toet oa of yrut odd to nottaests edt Yoorth és ‘Cham
anager Sitdva yd torseioe" bas ytifenciiad tnabasteb ‘silt 7
ai v2 ,efer fesemeg S oA (“win Gamage tost sade say ‘ot a
ywilssoitan to noitsexp edt of sogerstey Lis Biovs of tesd :
sd¢ To ote e® ative wel # ot sattaaq edt ‘Xo ‘redt te To
vedt baa ed Yidsacrass ton yaw th tad? yrevewod | nolnide
| «<galtovsebm eaw .bler od fade yo Thivmlelq edt TOF “Lee ativo
“eavaosd Jasbaoteh edt senisus etext edt Sekhbterg et
ed ton yeu tf molveemaco aidh ol Wiifenostad’ att Yo
tetisge Saswiyte eit eben odw Leenves tadt ovreads OF aeitae
“HOLten omse ott to Meamid eew shsu ak métsitevnen e Mt “do iste
edt to nviteninexe wo moxt geeee bivow #2 gene Uyetie
gaiyse esw Ieenvos ,brecst edt atetaeyqe FL es .tasmigts :
_ Btedterd silt eonsoatiw garde odd teat Dial dt of
- Mttatedg ont rot vildast of B09 bad one <t80 stron, ont at
tavo od ot saosin ad ton pier sPashastsh edt teatage, bas
om e'ititetats ont ak blot bet volt esttote ttt at pyptoge
. ‘Wthteaoiten e'teabaoted dt Yo ous xed
i va eae Bae
RL Dae
we owe tte Be ae wale #4 Chee see
=-lLl-
We find difficulty in seeing in such an argument any effort
to arouse the jurors against the defendant because of ie
nationality.
| As to the second point urged against the argument
presented by plaintiff's counsel, we would say that in our
opinion, no such argument should have been made. it was
quite contrary to the fact, for plaintiff's life was not at
stake and he was not putting his life in the juror's hands,
Counsel should have limited himself to the questions which
were really for the jury to consider and decide, This was
auite apparently an attempt to arouse the sympathy of the
jury, by extending the subject matter which was being placed
in their hands for decision, beyond # point warranted by the
facts. However, it is equally apparent that the attempt
could not reasonably be gaid, in view
tiff, as
aid not succeed for it
injuries received by this plain
that in awarding bim damages
of the very serious
a result of this accident,
amounting to $7,500, the jury had been unduly inflamed by
any improper argument. if the jury reached the econelusion,
from the evidence in the record, that the defendant's driver
was guilty of negligence, (and the contrary is not contended
here) and that the plaintiff was not guilty of such ne
(and as above stated,
gligence
as proximately contributed to his injury,
we do not feel the verdict my reasonably be said to be against
the manifest weight of the evidence on that issue) there was
ample reason to be found in the evidence relating to the
plaintiff's injuries to warant the assessment of damages at the
amount fixed by the jury, without the jury bein
anything plaintiff's
g in any wey
affected, to the defendant's prejudice, by
counsel may have said in what may be considered his over=-
ae W
5 frotts yao taome te cn dowe af gatess at yeioodt Rh bath we
aif to seusced tushaetab 20d tamlegs ssowwl edb wavots sot
Cart: eerter
tinewgts odt tenisya bogts taiog Baooes oft ot ék* |
asc ai ted¢ yer biuow ow .foxnvoo efttitaiste yw wonneinns
sew ff .ebdw need Sved divede taomsyta dove on ynoimtad
ts fon wie OT SITE nial TOT .toet Sas of yrsatde “ed Evp
.sined elrogut sd¢ @i stil ald gatetud ¢oa eaw ed Buk elste
Ho idw anoitesep aia ot tioanid bes iwtt aver biveda fe aaued
sew aid? -ebloob bas rehlasoo 09 wx edt xo? Ulsor exer om si 4
ost te iti eqmye ong sauors of tqnotse a8 Utastagge et tup 1
besalg gnied sew doidw tes ten tostdue et pathanem MM oveat,
edt yo otnerzew ¢ateq s buoyed «foe tomb ror -eband ated? at
‘dqmetes oft ted? toarecqe vl Lan at it st SNE oe
aTovewoH _setoat,
wolv ai bias ed vidsaosaer ton fisr00 at tot besoowe bem bib
ee ,ttitaiele etd? va | bovisoor eetxotat evotzea Xtev edt, 30,
POS ig fh
eegsenh mtd yatbrews at tent etnebioos etat te » Puree A
ye benattat Urb need bad 7
vat ot 008 ¢, ere
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«fo Law Lo1100 “oult bedoser rt edt “a taseugss
oe zevitbh ‘a*tasbrsteb ang vede brooer edt )
ot , a, ‘sonebive a nos
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bebastnoo ton at YIsTt 00 out bas) _stonegt igen | te Wiley, aw
4 eoneg igen dowe to Ve Ltug ton ase *titatela ads tat baz Aexed
3
A shotate eveds as bas) _eeeat at etd ot betuditta09 Nes, aes 3)
teniags od ot bias og ep ony
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ek.
Vidasosaer va fotbrev eds a A ®t bi 4
sow erode (ounet ade x0 eonab ive oat to tiat0e ‘tet
EB a7 cn ate an
out of gattator eonebtve at at Dawe ed of
ery eiqua
AEP RRR DS
; ait te omar to taoneseoas Co fnew ot eoiwtat taints
— ra at anted a oat
Fucitte oust ont Ve Rex? tauone
‘etMtemteig gatdeyme yt .sotbytera ettashasteh edt of betoents |
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zealousness to impress the jury with the seriousness of
the plaintiff's situation,
For the reasons we have given, the judgment of
the Superior Court is af firmed,
JUDGMENT AFFIRMED.
TAYLOR, P.J. CONCURS;
O'CONNOR, J. DISSENTING:
In my Opinion there should have been a directed
verdict for the defendent as requested. All of the evidence
shows that plaintiff was injured as the result of his owm
négligence, The two cases cited in the majority opinion
as sustaining the contention that the question of whether
the plaintiff was guilty of negligence, was a question for
thejury, are in my opinion, in no way apt. The facts are
entirely dissimilar,
In Elliott v. Trandel, 227 I11. App. 359, a boy
alighted from a standing street car which had stopped at a
regular street crossing to discharge passengers. tHe passed
around the rear end of the car on his way across the street
and was struck by an automobile traveling in the opposite
direction in the oparallel street car track,
In the case of Stack v. East 8+. Louis Ry. Gov,
245 Ill. 308, a person alighted from a street car which had
stopped to discharge passengers, passed around the rear end
of the car and was struck by another street car running on
@ parallel track in the opposite direction, It is obvious
to Segepay ieee edt Atiw vrut edt seotqnt ot weg a
: mo ktawt be etttitn iy edt
CAS Wan Ses Ge
te tuomgdut od? ,aavig ovat ew esoaser oft 107 £ Lamekt as
»bomritts ef tru00 sosxequea ads
Sy eM id OF De hy
el 4
horwee Oey
PRWALTHA THERDETY, ’
gtietirde
at ytavtnoy ed iep
{QHOOKOO VL .6T | HOUTAT
Leusngionapadl ot JIOMMOD4O
ree clans feb
| betceribh & s9ed aval blucta oxodt nosnige. . a qe oe ue
gwo eit to #iuset ode aa bexupal saw. Phlpelaly, #ah?, aeeep
moltixo ytizoten ede at bette asaso. ort oft ,soneg aligen |
— isided® Te sottesup edt dade soitaednoo edt gatnisteve os
Si PON ae
not neiteeyp # daw: omgiizen te ytiiug gow 2ittaisl siq oat
hic Bl
Yeev
ova aveat var ytqe you oa al okelae ve ah OTs .yee
. rat MD 8 melinteat ¥: shine
arene
_ yo & ) 828 aaa ffl 988 Usha wv HORE arses ui
. 8 te bewaote bad dotdw rao teerte gatbnora act bObdg tte
: _ besweq ail + eregaacnsg egtedoath ot gataeoto toot e ‘TeLuyor
* im _teonte edt ‘asoros vow eid ao teo ed¥ Yo bine tHer ont paueta :
a ettaoage: oat a gatlovers: slideaotis na ‘Vd doutte eae bats vy
“tosrd ‘x80 e toda’ ny old at mortoorth
ae #0 Dh eae Say
. i sR doate, 0 neo ‘itt, i a aan
7 pan ‘ohabetuhin 140 toette 6 mont betdgt ie as eh ed a” itis
Bae geen add pavers beseag .etegae aT eatatosth of 1
" f #. ere e LA, ants tar Na af
are ab 33, afots 4, it Lig oF ey z
ee ” ae
30 — 31140 DAATA C 9a
CG. Ae OTIS, W, A. OTIS, S. E. KLINE, )
G, S. EATON, M. 0, HARNEY, RICHARD
INGLIS, Co*partners doing business
as GO. A. OTIS & OO.,
Plaintiffs in Error, ) ERROR TO
CIRCUIT ODURT,
COOK COUNTY.
Ve
CHARLES T.. KNAPP,
Defendant in Error, )
Opinion filed March 2, 1927,
MR. JUSTICE THOMSON delivered the opinion of
the courts
The plaintiff partnership brought this action
to recover an amount claimed to be due from the defendant
Knapp on a subscription for certain shares of corporate
stock, pursuant to an agreement with certain other parties
who, with the defendant, entered into a syndicate to deal
in this stock, with the plaintiffs as managers of the
syndicate, The case was originally instituted against
“Charles T, Knapp, personally and as successor to Charles
T. Knapp & Cos, @ corporation, and as a co-partnership."
During the trial the plaintiffs, by leave of court, amended
the praecipe, summons and declaration by striking out the
words, "as successor to Charles T. Knapp & Cow, 2 corporation
and as a co=partnershipe” At the close of the plaintiffs!
case the court gave the jury a peremptory instruction to find
the issues for the defendant, A verdict to that effect being
returned, judgment was entered accordingly, and the plain=
tiffs have brought the case to this court on writ of error,
OSLis = 08
\. vipa toes \away
“ gutaa ae ‘2 -BITO A W «BIT n'y we.
GAARDIA VRRRAH 8) GM ROTA. 482 uD°
asontend yatob etant .SlIDUL
«009 ms aT0 oA * as
Of ARORAR ( ,rotrs of &tisais(t
eTABCO TIUOALO
s¥THUOS AOS
(
{ ,xotr® al ¢osbhasted
oVGRL ,4& fotek haitt noiatd
te rene edt Sberevitsh “OBMONT OTR fl
‘ttw09 oat
aie pets fe
oites aidt tdguord qiderendieq ttitaisiq ody | thes
teabasteh odd mort aub ed ot bsmtelo tavoms as revoosT oF
eterogroo to setada aistreo tot soltqitoadue @ 90 qqscd
astitsq zedto aistiso dite tuemestgs ae of taawerua foots
feeb of otsotbnye 8 ofat berate <tashasteb edt At Ewg8 eh
eft to atessaam 28 ettitaisig ot add iw. ctoote: eae at
tentege botudivent yleaig ito esw ego esi? 9 |
soelrssD o¢ Tossesoue ef bas —— acon ame
The evidence submitted in behalf of the plaintiffs
showed that they were a co—partnership and were the managers
of a syndicate relating to the common stock of a corporation
known as the Producers & Refiners Corporation, Those who
entered into the syndicate joined in signing a syndicate
agreement covering the amount of stook which each was to take,
Under date of January 15, 1920, the plaintiffs received a
letter signed "Charles T. Knapp & Company" in which the
writer stated that they had signed the syndicate agreement
and were enclosing a duplicate copy thereof, showing their
subscription for $25,000 par value of the common stock
ef the Producers & Refiners Corporation, On March 18, 1920,
the corporation known as the Charles T. Knapp & Company, was
dissolved, A certificate of the dissolution of the corpora-
tion was introduced in evidence,
Under date of March 350, 1920, shortly after the
dissolution of the corporation, the plaintiffs received another
letter signed by Knapp personally acknowledging receipt of a
letter from the plaintiffs, stating that the stock syndicate
had expired on April 1, and that it had been decided to dissolve
the syndicate at that time, and requesting Knapp to take up their
participation in the syndicate. In this letter Knapp went on
to say, “We have been endeavoring to arrange for a bank loan
which wi]l enable us to carry this stock for a period, but
have found it totally impossible to do so * ** We can see
no possibility of taking up our participation at this time,
though if the stock can be carried for a reasonable time
until we can get some of our other commitments out of the way
we will be glad to take care of this."
x Qo
ettitatala edgy to tileded al bettindue ana 38: OAT ye ee
,ewg ne
aregsiem sit stow bas qidereadteg—op & eT. veitd ta sl
noitsxogros & te woods mommeo sit oF gaitefot et go tba “a ko
ow saod? ,aoitsrogtot etsaiteh & atsevbert ed¢ 8s wont
atecibave s gnimgts ai bentot eteoibaya sdtotat beretns
,glaé of asw doses doidw dooce to tmroms edt — tromeoTgs
[RAH
& bevisost ettitatiaiq edz ,OSer Lote wraunal ‘te pe gp ze9bau
\ ‘ edt doidw at — 4 qqend it ee lned® beagie retiel
an $meneotg = et ao ibaye adi bongs bad yodt tadt betste tet icw
i | tieds saiwode ,tostedt yqoo staoliquk s eerie tnd etew bas
doote momuos edd to sufsv tag 000,888 ‘sor nottqizosdue
.O8@L .8f dots 90 .acitarogred eteaties 8 oxvaton nak oe
BaW .Yasgoo) 2 cqeck .f salvedd ed? es anondt moiteroqroo sdt
~stogzoo odt to noituloeeia edt to eisoltitass A wheviosetb
,conshive ai benubortai saw molt
gRoOTS
x edt retts yisrode O88! 08 doxay ‘to etab reba oi a
ie wedrons bevisoet etlitmtaly edt .s10 88 er0Gr09 ‘odd ta no lewloueth
wg Yo tqteosr gaigbelwonsos yt Isnoareg a so% ve _Domgis re¢te4
a etsolbaze Soote odd tart gaitede erhitaistg ont a
- evfoeeth ot bebloab need bad #f ted? bas ok titqa 2 boriqxe bsd
en es ost ot qqenst gaiteeuper bas .smit tert ta et oo tb eo
mo trow casa nettel eid? al .staoibaye fray nt sottstiag as
“age! aned 8 ret sgcsrts of gairovsshae aed ovsd ha 2 avan of
8 i gin ae
Gite Be
- ‘dud -boiteq # Ot dnote eins yxte0 of ay ofdene Efiw do
, i ae
_ eee aso oy ** * On of ot fd texoqmt eiiatot tt
; x0G8 9h CaS
cout enat ts nottegtoiinag mye qu aabies te yltdtesed on “¢,
: Ly BUHRaL Bs
_ emits oldaccenet s tot betris0 ill 80 oote Fer ibe tk boieien
ms, i 4 8 OTN SY
Ԥ od one to t00. etment tum00 redto zu Ey enon e3_a80 2 on Liten
. abd to exeo sist of bela ed LLiw ow
ay be
wm ew
The evidence of the plaintiffs showed that a
number of letters passed between the parties relating to
this transaction. Under date of April 21, 1930, another
letter was sent to the plaintiffs, signed, "Gharles T,
Knapp," which was in reply to one written by the plaintiffs
concerning this subscription, in which the writer said
“our situation has not at all changed since our last letter
to yous We find it totally impossible to negotiate any
bank loan at this time, We will be glad to take some
action in this matter just as soon as it is humanly possible
to do so," In another letter dated May 13, 1920, signed
“Charles T, Knapp & Co., per ©.T.Ke", the writer said:
*T have been absent from the City for some time, * * *~
we wrote you sometime before my departure, stating that
on account of unusual banking conditions we found it totally
impossible to take up the remainder of our participation in
the syndicate now, “** The only suggestion that we can
offer at the moment is that you figure the balance due on
our participation after crediting us with our proportionate
share of the profits of the syndicate, and that we give you
our note for the net amount, due day in 90 days, you holding
the stock as collateral.” After receiving this letter the
plaintiffs addressed a letter to "Messrs, Charles T. Knapp &
Company," following the suggestiog in the letter just re~
ferred to, stating that the amount due was $15,282.80, and
enclosing a note to be executed for that amount, Plain-
tiffs next introduced another letter, signed "Charles T.
Knapp," acknowledging receipt of a letter from the plaintiffs,
end calling attention to the note which had been sent for
execution, and in this letter the defendant stated that
ait
s teadt bewede ettisoatsia edt te eonebsve of )
ot gnitefexr aeittsq aft ne oud oc beaasg aretiol to redasin q
wectons ,OS@L .{& fixga to etab rebay 00 Htomenant aide
e's"
my
Tas
yt esitsdy " ebsmgte att itn ieig “7 OF tase bad “rotter
attis¢aisiq sdt yd asttixw sao of viqex at asw dot | Ms ' <qq ead
biae retinx oAt doidw sé woitghzeadss: aide _gutmzs0a00
any)
ree ee ae sS a
are a
Kk
“qedtel tas to sonte begasdo {ls ta ton aad nottautte two"
“28 J
yas etsitogen ot sidieeoqmt ullatet ti Hast oF «HO
a once atss ot ~-hals o¢-[ hive -s#° ,omit eidt 28 eos £ and
sidtesoq Yinsmud af tt es coca as taut rettem aidy ak sottos
bengte eOS2L .of ysM heteb settet redtons nl ; 1208 ob | oF
sbige teticw oft . "3.2.0 teq ..00 & gant, a a0! {nant &
Bikes some eno2 tot wsto edt wert tusads Fay sy Mead fy ad i! 4
sade guitars ots L8q2b a eroted ont? enoa HOY, - aren on
Ulistod #i bawot ow agoitibaco gained bone eenlern 4 ie imeee wee. a me
ai aeiteqioitisq tue to tabaismerr ad? quay eins ye eidiesoqms
aso ow tt cettesygue ylao sd? * * * Won etsotbaye odt
m0 aub someisd edt orugit soy tadt ef tasmom edt $a TPte
etanoitroqerg two déiw ‘ee atts tbox usrts aot satetensg v0
a goy eviQ ow tedd bos ,8teoibaya ort to etito ty “edd Yo ‘erede
os gathlod voy e@¢sb 08 af yak ‘ome ainuoms Jan ond to ‘eon 90
ui nine git wettel side gatvisog: rettA “. Letet eto as abote one
+ qn +? eeizsn) ,aveaasi" of rettel s besteerbba’ ettitmisiqg:
vet teu tettel elt at goitesggua edt gaiwoltet™, yasqmod
has .08,888, 216 exw wh havens odt taid gattste .ot botret
wmatelt .tavoms dent ret betwooxs od od ston 8 grkeo rns
. owl eofted0" bengta: tottel redtoas beowbotial txem eth:
Bitih
reat
mh
he was unable to find the letter forwarding the note,
and he concluded something must have happened to it,
In this letter he asked the plaintiffs to florward a
duplicate of the letter they had sent enclosing the
note, together with another note, "and the matter will
receive our attention." The proof shows that the
defendant advised the plaintiffs "that the firm of
Charles T. Knapp & Co. (an I;linois corporation) was
dissolved and its charter surrendered in March, 1920,"
in a letter signed by the defendant under date of June
16, 1922,
The attorney for the plaintiffs testified that
at a given time and place he had presented a statement
ef the account between these parties, to the defendant,
showing at that time a balance due amounting to $5,281.25.
It appears that at that time the stock which this syndicate
had dealt in had been sold and the defendant credited
with his share of the selling price, The statement of this
account was also excluded upon objection, In our opinion
it was admissible, The lawyer for the plaintiffs testified
further to the effect that when he exhibited this account
to the defendant he asked him whether that was "the account
between him and Otis & Coe on the P, & BH, stock proposition,"
and he said it was; and further that it was a correct account
and if he had sixty or ninety days he would pay it.
The argument submitted by the defendant in support
@f the judgment appealed from is based on the contention
“that it was necessary for the plaintiffs to show (generally)
previous transactions of a mometary character as a founda=
tion for the proof of an account stated," Even on that basis,
bee
<oten odt gaibtawre?t rettel odt Sait et eldsnoy ecw od
ati o¢ Beasgqqsd evad teum gaidtenes , Deby loaes, 94, Saal
gs braewroh ct attisaisiq edt bodes ad aettel eit i
edt goicofoas tase bad yedt tetteL ‘dt to.etsedfquh
ifLiw xretden odt baa* ton tedvenn dtiw redtogot ston
edt ¢sdt ewode toomg od? "sot nosd. 8.10 evheoes
to grit ont tedt" attitatele of? 2entvba ¢asbseteb a
asw (noiterogros eiomit i a@) .ed & qgeel .T 7 4
" O86 ,dotel af bovobnetiwe tettade ati bas be rf 4
aa to otab 19bay tashbneteb edt yd. ehiaatial xottes, ti al
SSeS f 1@f ; q
feud baftitest etitvnisly sft tot qearotts ‘oat ae ice
snosetate & bedaeeaxg bad of eoetg bats emtd wi
etsabao ten adt of ,eeitueg evedt avswted }aiddel Si itd en
B85 188.88 ot gaitavome out sonslad & omit ted as ‘gatwods
Re (Staoltbmya eidt doidw doote sit omits tect te sade etzoqqs ‘tt |
ve oid
betibeto trabasteb edt bas blo gesd had at ‘#laob bad
Es ic Milan ee a 2
iss to teemetate ont okra gatifes aati te oreda ats aigtw
i og 7}
Et Ae Weve *
| mo tatqo 700 gl saoitest de sous bebuloxs oala aa #musoo0s
R ie ikem hy ah 3)
_ bettitess gititaieilq edz x0t rToyNel oat 0.0 eeinbs ese t $1
’ wa eiiy
paucoos eidé betidides od aadw tat tostte out of edt
if tauooos ott" eaw tect wediedy mid bedas ex tasbastob od “ee
+ Baby ore oe wis te .
ee enOld Leoqeta foots % sf sit mo sod & arto bas mit bemoed
: yooos tosrree 8 eae ti dadt tedtenvt bas jaow tt oy ‘od ba
% es ats ato ae
ati Yeq biuow od auab Loken xO wate eae pe ti bas
Mi yes ee ieee
ftroqque al tnahneted eft yddbettindue tusmugrs ef oyn 6) ))
foltaetnoo edt ao heead et motk beLsoggn daamghut: adi 30
lars nea) wore: ot ataata aie odd cet yiseseoen secon
—5e-
we are of the opinion that the testimony submitted by the
plaintiffs was sufficient to make such a showing. All the
argument submitted in support of the judgment was based on the
theory of an account stated, whereas the declaration filed by
the plaintiffs in this case included all the usual common
counts.
We are of the opinion the plaintiffs made out
& prima facie case and the trial court, therefore, erred
in directing a verdict for the defendant at the close
of the plaintiffs! proof,
The judgment of the Circuit Court is accordingly
reversed and the cause is remanded to that court for a
new trial.
JUDGMENT REVERSED AND CAUSE REMANDED.
TAYLOR, P.J.AND O'CONNOR, J. CONCURes
ata
edt yd bods imeie wronttest edt stadt hia’ “ede “te “e " Sele
eit Ifa gaiwods ¢ doe siam of foto ite ihe inhale
mo besed asw fromgbert ait to trecqua of barb beand oe r
i petit noitevslosb od? anetode jbatate feucoos na te eroods
pemaie teweu od? tls pebulont aso etdt af ettitmlelg he
HSS he 4 AT ee
vedmeo
Lea dqpehsre Ree
tuo abem ettitaisle ode panicles odd os ania ne kee
horte ,oroteiedt ,tavoo sits edt bas aso: Stost smieg &
. a0 fo ant te dastacteb edt 19% soibaev. # gattoortd, at
Toor tettigaietg edt) to
‘Ulgatbroces et txwod sivoti) 90% to ¢aemgbyt, oat
2 ein paivoits
’
ee Fy wee 3 ye +e Shc &
diaek bes
moO
vas ne tou inhs omy aa
S
bait” OF ‘aedtn
T SURES 3 ob ont ae :
iit Me td noawt od
Labey hs fad aq ‘bat
q : ny Peo yas: y
LR AB seed Mf <2 bas
Ny ; -
Nee é ss é bios i
aif is ‘ene see Ke iti i a he
Fd =
44 = 31156
GERTRUDE REITER, )
Plaintiff in baron, }
ERROR TO
ba SUPERIOR OOURT,
HAROLD J. REITER, } QOOK COUNTY.
Defendant in Error, )
: 3 8°
Opinion filed Varn 2, 1927, ‘
KBR. JUSTICE THOMSON delivered the opinion of
the court,
By this writ of error the complainant, Gertrude
Reiter, seeks to reverse a decree of the Superior Jourt
of Cook Gounty, dismissing her bili for separate maintenance
theretofore filed against the defendent, her husband, for
want of jurisdiction.
On October 3, 1923, the complainant filed her
bill for separate maintenance, charging her husband with
cruelty ani adultery. In her bill she prayed for an order
of ne exegt and also a writ of injunction. tpon the filing of
this bill of complaint, summons wee issued and given to the
Sheriff of Cook County for service. Op, the reveese side of the
summons the defendant's address wes given as 241 W. Van Buren
Street, and there was also written the further information
that the defendant was manager of the “La Rau Fastener Co,"
Summons was duly returned, showing personal service on the
defendant, by a deputy sheriff of Cook County on October 6,
1923, Upon the filing of the bill of complaint the court
ordered a writ of ne exeat and also an injunction writ to
issue without notice, The complainant filed a ne exeat bond,
and the record shows thet a deputy sheriff of cook County
Baste - oo
- anne ounnase
( grows ai whale ra Boe Cette
“oF “AD :
a! oe eto ND a, ‘is ue fh.
(B50 mLAAIE vv
i wat
Ber % 3
on oe : vena aga
} stOnTe ei fash beth ee mere
A @ wos ~ bbs rc. | ae 2 i
© Gear Ele doa MY: so har bg eS Oe Ok ae |
oe ae Shy nt oa
to sebatge edt ) betenstos woauont wrra agp
PR ae sae
ee re. tae age. his
shied Ten «taad afoaoe oct sents to stew eldt ‘
$2000 voireque ott ‘te saree 8 ovxaver “ot ‘wheos ution
so memeta tent atetanee ‘got inte od gatusimath .yenued geete bie. pee cay gan he
apt
. got eandewn tod ,tnabeteb sdt temieys, botkk éototereds
roo O9Sft tuentatynon off ERR, .& cada rae
dtie bradeud t3d akg tee pcitame caeoee etarecoe 08 ithe
uh Waa tube’ 4" if te ty ay
TOhHte ws «ot Soeyary one ftke xost at “ted Lobe man ye foure
a te cia oct noqy .ncttonuiat te tiny » cafe bas seoxe 2a to
i rte ot nevig baa bouset cae enone tatelqmoo to Ite elds
ot ‘te apie eesever odd no so lvtes 20% Yraweh aati to _—
£
nome nav WY 188 ea mevin ast eastbhba alte hee’ ® eit e a
aeitanvotent vedduut att aotdinw als saw otedd bas tue
5a) Tenntent veh ad” adt to tegsanr aew Parhaereb ony tant
<B ‘Téa mo Ware Aood Yo Titeeds yom
“dime tanae an + Da | sal " ; il
" Bhewap 2900, ko mine ;
ms te ° tae
LE ee pe ee a ee
wit wo eotvres Lenceteq gatwors spoons vib saw enomme
deb A yt tnebaoted
traco adit tatetemee biel Ente ett dovchsamieit wd i si m
=Z—
personally served the writ on the defendant and took him
inte custody on October 5, 1923, The writ of injunction
wae likewise served upon him on the same date, Thereupon,
also on the game date, the defendant filed hie general appear-
ance, and on the following day the court entered an order,
on motion of the solicitor for the defendant, reciting that
the complainant was represented in court by her solicitor,
and after a full hearing on defendamt's motion te quash the
writ of ne exeat, “and it appearing to the court that said
defendant Harold J. Reiter is engaged in business in the
City of Chicago and upog his representations to remain and
gare for sis wife and children,* it was ordered that the
writ of né exeat be quashed,
Under date of October 16, 1983, the defendant filed
his answer, denying the charges made age inst hia by the com-
plainant in her bill of complaint, Among other things, in
connection with his denial of the charge of adultery, he
alleged that in July, 1922, the complainant had caused him
te be brought pefore the Municipal Court of Chicago on a similar
@gharge, where the court discharged him. In connection with
his allegation concerning his property and income, he alleged
in his answer, “that he is employed as a2 salesman and manager
of the Chtoago office for his father,* and further, he
denied *that he would depart from this State and go beyond
the jurisdiction of the court." On November 13, 1923, the
defendant filed the affidavit of the treasurer of the *Rau
Fastener Company’ in which affient ews py ase Mareld 4. 3
Reiter is employed by said Rau Fastener Com .” This
af fidavit was apparently filed in connection with a hearing
On & motiog by complainant for alimony end solicitor's fees,
se Bre
ass
mis soot bu sashaeteh edt ao 2ixw aft. howxes paver
soltoamiat toe tice oc? Oa .8 aededn ‘to Ybosane ‘eben
wMoqverent tab sass ai? no mid dome Doves estweals aaw
tasgqe Lstadeg aid Dellt ganbeeted ode .stab oman oft, mo ools
eXebeo a6. ered sm Pure ade yab gaiweliat ed? ao bone .S0na
seid onmitionr ,toxbasteh adz tot cotiolfor ‘aiid to no kt ou to
wrotiotios red yw tuveo at potamawreot aaw teantalqmoo edt
aay tasup oF ao kt om, a emule e eh se pauivaod [lot a tetts buns
Sina gant sxeroo od? of gaineongs id bag* festa an te tine
edt at eventesd at bogages ‘al ‘weston .& bictee tanbacteb
bes afar of snoitetnoeetast aid oqw Saez opa iit to ‘to Wi
ye £0
edy gedd baxebto eae tL Symenbhitde bas Ode mid cok @tao
shodemue ad Joey om 20. tine
Ae ty
ally iret) ae
betit ¢mabagtab oat .e8er of redetod Yo otab hat
hoo add yd wkd teatese oben weg rede ‘oat gained ‘terons ‘eid
gi ,agnicd testo gacmd 8 ytriafqmes te tke ‘nod at tusaiata
afd ,ytetives to eytedn ott bo deinet ati mite mos toenneo
atd houwee bad thanialomon off _. GRRL, tio’ as dadd beyotte
ealinks a ao ogemadd bo deed Laqtotawd. ott omoted, Iiyvord ed oF
déiw costoeamen ol ois heguasinedh txame edt oyode », ogtade
begelie ail ,gmoeai bua Yrones¢ afd gatereome mottegolie afd
trate bas Aemeles s ee Seyotems al of dec” growaae wid, at
at redtrut bak. Sgneiteh eid sob ook The oyepdm@,.oft Ro
baayed eg hae state ofc? mort traced bLuvow gab gadt" heineb
yi act ,fROL 81 xodnev@liin® “sixwconh edd Yo sottosbabanty odt
: aka” odd To tenement add To dived tte edt, Hele gashawked
ib biosait vane _ee faeke ie doide ah. yasqaed saseragy
ote? Wanted TaMseaMe orAh bikes gf Hegoleme es cokes
Btiqeod « atte meitosaren ot balit yitaerange mew divebth de
ao tonmenaiew fine WrOMLie gOk tase Lalgmos: Dl adetaillaaal
Se “Esdras ict Lt A Re ar ite baat eh i?" hoionad
wo dee
The affidavit covered the subject of the defendant's
salary, on the same day, the court entered an order
for alimony and solicitor's fees to be paid by the
defendant, On January 15, 1928, the complainant made
a@ motion for the entering of # rule on the defendant to
show cause why he should net be punished for contempt of
court for his refusal to comply with the order of November
13, 1923. Tne court found that there wes due the complain-
ant, under the former order, the sum of $2784,00, and that
the defendant was in default te that extent, and the rule
prayed for was entered, On February 17, 1926, there was
a substitution of solicitors for the defendant, and on
the same day, on motion of the defendant, the court
erdered that the cause be dismissed “for want of juris-
diction of the subject-matter, for failure to allege resie
dence of the defendant in bill of complaints”
The statute giving 2 wife the right to bring
an action against her husbend for separate maintenance,
provides thet i+ be brought in the county in which the
defendant resides, The bill of complaint in the suit
at ber should have conta ined/ juriethensenns allegation.
But the allegestions of the bill of complaint did not affirma-
tively state facts showing tha: the defendent did not live
in Gook County, and the record shows that the fact is,
we ddes live in Gook County. Thie is not only demonstrated
by the return of the Sheriff of cook County, upon the sum
mone, (Raab _v. Raab, 160 I11. App. 554) but it also appears
affirmatively from the allegetions of the defendant himself.
This precise situation was before this court resently in
Plotnitsky v, Plotnitsky, 241 111. App. 166, where it was
Se”
_— i =
ats
attiakcotobh est Yo sootdne ont Gexoveo Phveha te wet
xebre of Soxsty degen Sat yeah Rs ete a petition
ott ye blag ot of vot yl tetint toe Gna yitaats 26%
Sbke #utrtetawon ot \O80L OF wieonks BO \.dalubadtob
a} tosbosieh odd a0 ofes & TO yolvetne 667 TOT mEidom Gs
to vqmasitoo rol beratary ed vor bivede emt Yaw ome’ wolle
gsdmerot to tebe sit ctae qlee ot loathe ghd teh ubraee
oni atemen Leah pub pew ayedy taf, barok teuco ary VOL QSL
fadt one GOCRSNRt to mop ode Lolo Tense em wobete (tas
etvn odt baa gnats Saat oF ¢bew'tob ab aow dmabeated ode
ecw onodd 0082 .TE yreundot 00 vheretan enw wor beunte
£6 See tmebweres act tet avetingvoe to nottudigedue a
truss ad# Gashceteh odd tw action ae ue onise: ‘eid
mee To eae Tot" heewtomta od omag ont tadt berebro
| wheet wget ts od omar te? wot stent andoot dia, ont 28 moitatp
“gabelqnoo te sotel mt diminored nas te eons |
kG
gtd of sdyls SG atte © gabvky evintets emp Some
Woereaste tan stevaqee tot Saadeut wed dertape nettos x6
ont dotte at qWaveo om WE duigvoud ad 42 ede wep trory
tive om at seancaanae = itid of .eehteow taadaoked
a ltage ita Lacie tbton dina \VWwatetace owed divede ead ts
~marhtis doo AL tuialquos te Llid add to enelgagetie ont dum
oh tom oho tavinetay edt omit gadtwede wtoak wtate yhovat
ett tent odd dad? ewode broces oat Das oy ydenred’ dood at
betatiannmed ylao dan Sf aba? sytated aeod hoethl woth md
“aire side mow _¥tume Hoot ko Wwe och Te mmabeD ede yd
acon Omar at eae ‘(ane Qa LLY OBL, Bae dae) canon
stlvents tishyeteb add Ro mmokhaye lie ott moet yLowkhowes Wit
at: Utmonee t2n60 oade wroteon mae neva
eee OL onette Gat vw itt LOG vay “hed kere eo
mies
held that a bill for separate maintenance, brought by a wife
who resides in the county where the suit is brought, which
fails to aver that the defendant is a resident of that
county, but contains no allegations showing the contrary,
way be amended so as to aver the jurisdictional fact ree
quired to bring the case within the provisions of thestatute,
' The chancellor erred in overruling the complainant's objeo=
tion to the defendant's motion to dismise, Complaint
should have been given an opportunity to make the appropriate
amendment to her bill of complaint.
The decree of the Superior dourt is reversed and
the enuse is remanded to that court for further proceedings.
DEGREE REVERSED AND CAUSE REMANDED.
TAYLOR, P.J. AND O'CONNOR, J. CONCURe
foie tfguons #2 Yue oft wren nen tare pee .
fast Ye ) eaok ee # al tinea ot et se ot af
ean tnat Inno ntorseaet odd xera of a ow.
sebutt atest x0 ant tebverg ot aratte wean ode sii ae hee
~et de et smamtsfqmo> ‘ail ganety wixeve ak Berets stenineennpdinadlll
i es — a od aottom icometanindl auld
"putas id hi wet ot ‘tn :
a Le RR 48 rT trot
ilete es SU Aas th Pr ill
OHA set oun
ie ce
nae € i)
Ba) “
a
bie as a
Hadeas need Nien
I ac ee
it A BAS Se iin ee Wy « i’ Waa te! Y
AON GaN BUI co ane Sate Ne
BAR ee m neh Uy Hsia Be , a
Pe Se
300 = 31163
THE NORTHERN TRUST COMPANY, as )
Executor of the last will and
testament of GEORGE LILL, Deceased,
Appellee,
APPEAL FROM
Ve SUPERIOR COURT,
COOK GOUNTY.
WILLIAM S. PACE, ET AL,
SANFRID HARNSTROM,
Pes
Appellant, )
Opinion filed March 2, 1927,
MR. JUSTICE THOMSON delivered the opinion of
the courts,
George Lill, now deceased, to whom we shall refer
as complainant, filed his bill in equity to foreclose second
and third mortgages on property located at the southeast
corner of Sheridan Road and Foster avenue in the City of
Chicago, owned by the defendants William &,. Pace and his wife.
The bill recited that after the making of the two mortgages
held by the complainant and also a previous first mortgage,
to secure a bond issue of $200,000.00, Mr. and irs. Pace
had conveyed the real estate to the defendant Harnstrom, by
quit claim deed, but although that conveyance appeared to be
absolute on its face, it was not intended to be such, but on
the contrary, it was exereashy agreed between the parties that
the premises conveyed by them were to be held by Harnstrom as
security for the sum of $25,000, which Harnstrom had loaned to
Mr. and Mrs. Paces
It was alleged that Harnstrom, claiming to have
become the ower of the equity in the property, under this
ane = 008
4 a ayoaee bear ratty ee zt - :
( hele ae
~besssoed ,ldld SOS@aD _
wOH'E JATIIA ane ;
.TAUOD AOIMATE wee sti :
pe yet <
+YTHUCO HOGO :
i A TH DAS AB waza ’
‘ ta ‘ ~ ape a ew aoa :
i » . ;
£20 .A:1 pb - somBHAA arama
L9RGI 4B deoveu SeLit soimtg® sigs 4
Xo moigtqe sit borevifek HoeMONT SOLTauL ja. 3
pier? ale Zi
ee Mee fee i q
«eter [fade ow modw of ,beessoeb won ,ifid sgrosD i
baoose seofoerot of ytiupe at [itd aid bef? gfnsnisiqmop an
taserivos add te betsool Yrsgorg m0 esgegtrom Stldt bas
to yi edd ni ovnevs <steo% bas beok asbirede ‘to reax00 a
ue .otiw ald bas coed .@ met(liW etashaeteb edt yd beawo .oysoidd 5
y asgagizrom ot edt to gaitem sdt rterts tedt bet foer tiie edt
se ,egegtrom taril eveiverq ¢ cals bas tasaialqmoo ody yd bled
= ORF st bas sei .00,000,008$ to evsat baod & exuoea of
dads eeitteq eit neewted boerys yienexgxe aaw tf “extariace edt
eS
: 26 motsantsil yd Bled ed ot sow modt yd beyevace esatmerq edt
5 ot beasel bad mottenteh whidw .000,388% to nase edt tot we |
ky - s808F vem ‘bas +
si“ OV OF Qeiwislo .motteniei tads begelia oow 2 a
ss gidt tebaw yytaeqora odd at wise oct * vow
a
ie
quit claim deed, was in possession of a part of the property
and collecting the rents, in @isregard of the rights of the
complainant, as the payment of both principal and interest
on the two mortgages he held were in defaulte The bill further
alleged that one Grossman claimed some right in the premises
as a mortgagee or creditor, The bili made Mr, and lirs. Pace,
Harnstrom, the three trustees under the first, second and
third mortgages; Grossman, as trustee, and Lackner Butz &
Company, at whose office the principal and interest was
payable on the bonds under the first mortgage as such amounts
came to be due, parties defendant,
The defendant Harnstrom filed an answer to the
bill of complaint, denying that he held title to the property
as security; alleging the Paces were not indebted to him as
alleged but that they hed conveyed the property to him by a
quit claim deed for a consideration of $30,000e¢
By supplemental bill the complainant Lill set
forth certain payments he had been obliged to make on both
principal and interest which had fallen due on the first
mortgage bonds, and had not been paid by the Paces.
The defendant Harnstrom later filed his crossebill
in which he alleged that the Paces had not been indebted
to him at the time they executed their quit claim deed com
veying their property to him, which was on October 27, 1922,
but that on that date, for a consideration of $30,000,00 they
had conveyed the property to him in fee simple; that there
had been no agreement for the reconveyance of the property
between him and the Paces, He alleged that since the con=
veyance of the property to him the Paces claimed to be the
A 5 ee recs *
aie
as Ca
yirecorg edt to treq # to folegeweog ai ssw. shot Laie ‘a
ont to etdyit odt to Bregevett at ,atner oft gutioeL too. bir
teotefat bas Iagionitg ditod bd terse aq. ait as suanhihigen
wesgaut [lid ent stiInueteb mi exew bied ed eogagitom owt ody a0
sestmetq edy ai tégix smos bemisio aameaor) emo stadt begeli«
(G0e% .atN bas .1M sham ‘lid ed? ,rodibexo, TO segegtrom 8 as
bee baoose ,tertl ot reba eeeteutt serit edt ona anal
ner
A niwG temrlosd bas <seteuid ee <aoue20n) 28
trom bx it
sae geatetal bas Legion ing edt soitte ssedw ts ,.yasqmoD
etavoms dove as egegttom tarit edt tebaw ebaod edt ao sidaysg
# : leita beni en ed ot smao
eat o¢ sewens os Bbslit moxrtvendtsH tashasteb oat, a>.
‘yrreqortq edt of eltit Biod ef tact gmiyaob tabhoeabs ‘t. ffi¢d
as mid o¢ betdshat ton Qtet g20e1 84d gaigelia syeinvose as
By mit Of Ytroqota st Bayevnto Had ysdt tad tod bogetts
4000,.08% to noitershianos s rot Hash sikets tinp
Seis) Te tarred
toa ate sneha. edt ILid aremwet on90 126°
_ Ated so siism ot begiide seed bad ed atnemyeg atstxe0 stzot
tak edt so eub ae list bad doidw teeretat bas, isgleaiag
(x8noat edt ve bisq seed ton bad bas. sabnod sgagtitom
(i —«*Fetedsaaets etd berrt taser mors anda saabaotss odp "PPE
© © pegaebat ‘nS0d Fea Bhd dosed ads saad bey Tth dade rie Rt
=itoo Deeb mialo sisp ‘tiens bestwoexe yadt emit of¥ Fa mtd’ Ot
"str (98 tedotao no pew doidw paid oF Wresorg tons Zalyev
. Pi sen 00,000,068 to mottstebienod 6 rot estab tent ao! Fille" the
eredd tedd yelqnta ost musth ot ysveqotg ent “Hoysvnds bad
Bi: Wrsqot¢ edt to eomeyevmocet edt 16% sashestge on no ed bad
a “n09 oft sonie tedd Degelie 6h .e6oKd Odd “Bae mtd agewted
ens sd ct hemtsfo seat add midOd YereqoRd ete RS BONS
~=Beo |
ewners of the property and that his title was only that of
a mortgagee; and that om February 26, 1923, the Paces had
executed certain notes and & trust deed conveying the pro=
perty to Max Grossman, as trustee, and that this deed had been
recorded and that Pace had filed an affidavit in the Recorder's
Office, alleging that the deed given to Harnstrom was a mortgage
and not an absolute conveyance, according to the agreement
between the parties, He further alleged that the third mort=
gage, which involved a trust deed to one Dawson, had been
executed by the Paces for the purpose of paying and releasing
@ certain judgment, but that this judgment had not been re
leased but had been assigned to the complainant Lill, who
had become the owner of that mortgage and that for that reason
the consideration for the notes and trust deed, executed in
connection with that third mortgage, had failed and was not
@ lien upon the property, but a cloud upon Harnetrom!s title;
and that his title had further become coulded by reason of the
trust deed from the Paces to Grossman and the filing of the
original bill in this cas®, alleging that Harnstrom's title
was not a fee simple title, By his cross—bill Harnstrom prayed
that these clouds be removed and his fee simpel title should be
established and quieted,
Mr. and Mrs, Pace filed their answer to the original
and supplemental bills of the complainant Lill, admitting all
the allegations therein set forth, Demurrers were filed by
them as well as by Lill to the oross=-bill of Harnstrom, which
were overruled. The Paces then filed their answer to that
eross=bill, in which they admitted that on October 27,5 19225
they were not indebted to Harnstrom, but alleging that prior
=
“Fo tedfd vnc esw oftit eid ted? bas yerooorg ‘silt Re sxomwe
bed esoed adt ,SSCL ,88 yraecrdsi mo ted bas yeyagttom 6
=0rq edd gaiyevmos hesb teotd & bas aston aistreo betvoexs
& gosd bed Beeb eidt tat bas ,setett as neneeery) Ket Ot Yuey
‘stzebtooon edt af tivabitts se beLtt bad sost tadt bas bestover
egegtxon s esw motteatsH of mevig beel edt tent yatgelis ,eoltte
trsmeeras adt o¢ saifsooos ,soasysvaoo sfufoeds af tom has
strom Bridt edt dedt bogelis tedtrut 6H” \hettitsg edt moewted
geed bed ,xoewed omo o¢ besh feutt s beviéval do rdw pegey
gaianefor has gaiyeq to sevctuc sft rot atest off yo besageRE
ot asod ton bed tnomgbut eld} sand tod .taomgbut mietxd5 Ss
onm itl tasmisiqnos edt of beagises need bad ted beasel
noseex tedt sot dadt bas sgestrom teat to xsawo ot emooed bed
at hetuooxe .beeb teutt bas eeton ent 102 moltatebtenoe eae
gon egw bas belisl bad _sgeytzom btidt tedd dttw. “soitoongoo
joitlt e'mottentsH aequ buofo s tud .yireqerg gon ty fea i
edt to moeset vd bebivoo smoosd codtist bad efiit eid tact bas
ods to gaifit edt brs aznceowy ot stoxt odd wort bsod tauxt
olttt e!mottenitel tect grigeife .exeo aiid nt Tite feniytro
; — words eats Ilid-seoro wid va ,eloid Siqsite O8t 2 don wew
ef bivode oftld Iequte sot etd bak bovener od ebwolo “eaeds Pant
vbevedup bas bodalidatee
fentgizto edt of tewecs tisdé betit vost jeri Bas ,aw “oy 2!
iis patti tabs eft dared oft to ellid Istnemefgqua brs
wW belit oro ‘etetiumed ,dtrot tee nisradt aaottagelic edt
to htw notional to [fideeaoro edt of Ifid yd as few es mods
tet of rowan ‘aheds ‘polit medd g2087 od? ,belerteve etew
S80 otf redos00 no Sade bettiabs wet doidw at pfftd=esor
roleg teas gatgolio tud “poeta of 2 botdenat ae og
ia a nate MM a
5
sore
to their execution of the quit claim deed to him on that
date, they had made an agreement with him whereby he was
to loan them $25,000, in consideration for which they were
to pay him $30,000,00, with seven per cent interest, he
to take as security for this loan a deed conveying the
property in question to him; and that it was in pursuance
of that agreement that they executed the deed in question
and delivered it to him on the following day, The com
plainagt Lill also filed an answer to Harnstrom!s cross
bill, alleging that he had no knowledge of the facts sur=
rounding the execution of the quit sini! i teenies
except such as he had received from the Paces, He alleged
that Harnstrom's rights in the property wére subordinate
to his and he denied that the notes and trust deed from
the Paces to Dawson were given for the purpose of paying
the judgment referred to in Harnstrom's cross—bill, but he
alleged that they were given to prevent execution of that
judgment and that he had later purchased the judgment.
Mrs. Pace filed a cross=bill alleging that she
and her husband had borrowed $25,000,00 from Harnstrom and
to secure that loan with interest, together with an addie-
tional sum of $5,000,00 charged as a commission for making
the loan, she and her husband conveyed the property in ques=
tion to him by quit claim deed, which, however, was not in=-
tended to be an absolute conveyance, but, under the express
agreement and understanding of the parties, it was to be as
for the security of the peyment of the loan with interest;
that she had offered to paybthe loan and the commission, but
Harnstrom had refused to receive it and reconvey the property.
She alleged that the loan was usurious and prayed thet she
ue ah
we
ey
ject no mid ot beeh mislo ttyp odd to acttvoexs tied? of
aaw od yorsiw min dviw toomectgh ae oben bad yout’ .oFkb
orew edd Motte tot aoitsreblanco at .000,a8% edd aol’ of
od <deerssat uso req moves dtiw 00,000.08 nik wea “od
ad¢ satyevmoo best s msol aid} ret ys twoew as exer ot
eee phptionwtars ai ssw si todt bas quid of motveoup at YroqoTa
- goktesmo mi Beeb ort Setucoxe ort tadt taomeeTgs tent to
moo eff sab: gatwolfot oct -mov-mtd of $2 borevites bre
~seoro efmorteantah ct towams os belit cals fied teantetd
~tus atest a - eybeivend on bad od tudt gatgelis ,ifid
‘hi ebadainiiie ab aan tiop edt te amoftuoons oft gaibminer
Segeile sH *.e95si edd moxt Sevisost bad ef gs dosa tqeoxe
stsqibrodwe eew yereqoty ond mi edge s'motsemt gh’? att
moxt beeb tavxt bas aston edt ted¢ Detned od Hab Gld OF
_ yatysq¢ te sacqzsg edd cot meviy etow moewed OF e6oed Sdt
‘of tud ,fiid~asoto e'worteateH af of bettetst tasag bsp ods
tadt to moftusexe tnevetq of aevig etew wut tedd begets
stsomgbyt eff beeadotaq retel bef ed gedt Bae tdembut
Sa 5 > wot foam eeareet
3 , ede testa - gagel ta Iftd~aeoro 2 bolt e008 om, raahaage
eu. bas mort eats moxt 00.000 28% bowoxzod bad basdaud zed bas
< ei etbbs ae ote xedt got teotedat ag bw aa0L tadé ersoee oF,
gniden sot moleelmmoo of beg t8do 00,000.88 To mug mum Samoks.
“soup af yiteqorg sit bayermco basdeud red bane mea etsol adt
rey Ct oe
oem ee
tage ies aot
: , mal tom esv .tevewor .doid® .bo9b misio tinp yd mid of molt
is «BH 8d OF aS dL ,~eeltrtsq elt lo gatbastershay bas trenderys
_ iteeretal dtiw nsol ed? 20 tnemor ot to yim ee orth rot
| dud efoleatmmoo ed} bas asol edtdysq of boxvetio bad ede sede
: stiregorg edt _XSvRo09 = bas ti evisos: of beawtex bad moxtesnpy
on _ ate tat beyexq bas avoimwey asw oP nih andy heap he
i
Dee
might be relieved from the usurious part of ‘the agreement,
and that upon repayment to Harnstrom of what might be found
to be due him, he should be required to reconvey the pro=
perty, After demurrer to this cross=—bill had been over—
ruled Harnstrom filed his answer, denying the allegations
of Mrs. Pace's cross—bill and setting forth again the sub-
stance of the allegations he had previously set forth in
his own cross—bill,
Isgues having been properly joined on these plead=
ings, the cause was referred to a master, who, after a hear-
ing, submitted his report to the Superior Cour$ of Cook Gounty,
finding the facts to be as alleged by the complainant Lill
and the cross—complainants, the Paces in their various plead=
ings; that there was due from them to Lill, in principal and
interest on the second and third mortgages and the principal
and interest he had paid on the first mortgage, an aggregate
of $70,375.72; that the conveyance to Harnstrom was intended
and agreed by the parties to be a mortgage and not an absolute
conveyance and that there was due from the Paces to him, in
principal and interest, less certain rents he had received,
an aggregate of $23,583e18, There were certain other findings
by the master which need not be noted here, Objections were
made to the master's report by the defendant and cross-complain-
ant Harnstrom which were overruled. @hese objections were
allowed to stand as exceptions and later they were overruled
and the chancellor entered a decree granting the relief
prayed for by the complainant Lill; dismissing Harnstrom's
eross—bill for want of equity; finding that the conveyance
to him was in themture of a mortgage and not an absolute
conveyance and that the loan made by him to the Paces was
«is
tmangergs sit to ¢asq eucitay sit sott bevei fox od *idy tm
* SreP
hauot ed tiyim tadw to mottedtsh oF 7 nomysqet oq ‘gaat ho
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~tav0 mod bed [itd-eeote ald? of toxtumes rest _s#r0g
ancitegelia edd gaiyaob < TOW Bs aid belit smowsanmrail bo ir
-—dva edt aisps Asrot gal¢tes bas [itd~eaors ae Aedes be
nt beirdushs tee ylavoiverg bed ef enottage tla om Sonne
: -{1td-seoro so etd
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“teed s tot ts yori tedeen & ot Herisisr ssw sevso” add‘ yeget
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bes faqionizq ai ,iip] o¢ medd sett exb esw etedt tadd ygegal
fsqionitg edt bas segagérom Sridd bas haeose edt so ¢tesrodat
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5 82S .aeot i
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¥ Ye Sid oF mole
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* Be at RS ae
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YAS bagged
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ba Saetgee s Pie es Be wget fe “ltt
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usurious; and that the amount he was entitled to as
of the date of the decree, was $25,822.60. The property
was ordered to be sold subject to the first mortgage, to
satisfy the amounts due to Lill and to Harnstrom, Other
incidental relief was provided for, to which we shall refer
later,
Harnstro; perfected an appeal to the Supreme
Court on the theory that a free—hold was involved, That
court held that a freehold was not involved, and transferred
the cause to this court, - Lill v. Pace, 320 I11. 522,
In support of the conclusinn that the debt from
the Paces to Harnetrom was in the nature of a mortgage,
the master found that at the time thet conveyance took place,
the property in question was worth about $450,000,00 and that
the encumbrances then outstanding against it aggregated
$226,435,00 “so that at the time of said conveyance to Harn-
strom the property was worth about twice the amount of the
mortgages then outstanding against it," and it was therefore
not reasonable to suppose that the Paces woulld have sold
their equity for $25,000.00 cash, The master also found in
thie connectiom that the deed from the Paces to Harnstrom,
although reciting a consideration of $30,000.00 had only
$6,00 in revenue stamps affixed to it, which was the appro~
priate amount required on notes and evidences of indebtedness;
whereas if the deed had purported to convey an absolute title,
thirty dollars in revenue stamps would have been the amount
requireds
It is the contention of the appellant Harnstrom
L She Ly
3 eg \ 4ahy
C
; -3~
ir ‘ Bo oe ee
$ es ot beltitne ean ed savoms edt dade bas jauso tweu
yeteqorg ent 6.08 888,888 asw eotoe oats to tsb ont to
iL Bes nr
o¢ ,egaegiton tarit eit et toetdue bloe ad o# | berebro >a
e 5h re iv g
sede .moxtentaii of bas [ffg ot oub a? mons edd ytaltse
marie? Ps ere
restex Ifede ow doidw oF eTot bebtvora lal tei fer sao nebbem
void etotel
1 Hey Ts. somes
emetque edt ot [seqqe as betootiraq gotterted ne wid
tadt .bevicval esw blod-sexrt s tad Nueces ods 0 tisod
My ia %
bexze tansti bas hae tovas gon e8w biodser? 2 fads Mot aay |
it HE Oe eS A ane ah Se
mort tdsb edt tad? natevlonos odd to sredque aT geihait
aegegitom s to sxutad edt ai aw mordentel ‘oF wooed ‘ot
weld Aoot soneysvmoo ¥sdt omit edt te heads Davot tetesw edt
tadt bar 00,000,088) tuode dttow asw notteesp at yreqotg eds
e betegevggs tf tantegs gaibastetvo oedt aeomatducons ont
* “igh of sumeyevavs bise to omit adt ta ded? og # 60 Sb BERS
: edt to tavoms edd eotwt tvode dirow asw yitedbad 6He woxte
sretersdt eaw ti Dow “di taniegs yaibastetvo sods wegegtiom
Sioa eved bifvew ecoed oft tant seocque er Sinai Sli
» si bavet oelse totess ext ,deieo 00,000 28% Tok whipe ‘heitt
| gMOntsatgl of 29264 ont mott bos ont rie sort oeinn06 |b Litt
Yao bed 00,000,08% to aolitetsbianco s gabtioer dyvortTs
— teTags esit gen dotdw ti of bexbtls equety eumevat #to00,0$
« jteenbetdsbat te ssenebive ous weton no. honipes: taobhe) wentig
— e8isit etulosds ae Yevaos oF befrogiyg bsd bes writ tb esorede
tome edt need: SERIE RN Dntoee: ne eraltoh yeuide
ae lype to fg ca | bextuper
ei Re te ake ot pie md ov
wortenral asl tecge oat to soMaebmes ests bet ar ned
EG) ae are ae dade Bi
Vas
that there is no evidence in the record to support the
master's finding as to the value of the property, In
our opinion the record dees not bear out that contention,
Pace testified that the fair market value of the property
in October 1922, was between $450,000.00 and $500,000,00,
On cross-examination he testified that in 1923 he had listed
the property at $380,000,00, “in order to get cleaned up."
One witness testifying for the plaintiff gave it as his
opinion that at the time he was testifying, (November, 1923),
the property was worth from $325,000,00 to $350,000.00,
Harnstrom was the owner of the south half of the block
on Sheridan Road in which the Pace property was located,
Another witness for the plaintiff testified that in 1922
Harnstrom told him he had been offered #440,000,00 for
his vacant, and he expressed regret that he had not sold
at that time, The man who placed the first mortgage on the
property to secure the bond issue said that they placed a
value on it "for loan purposes" but not for sale and that
they considered its value on that basis at the time of the
conveyance of the Paces to Harnstrom to be $365,000,00, =
it would "not be any less, I think the general tendency
in that district has been to go up,” 4 witness who owned
property on the west side of Sheridan Road stated he was
offered a price per foot in 1922, "before I remodeled,"
which,applied to the property in question, would give it
a value of $342,000.00, Several witnesses testifying for
Harnstrom, one of them being the father of his son-in-law,
gave values as low as $250,000.00. Even if we took the
view that the conclusion reached by the master as to value
was somewhat high, ell the evidence in the record, in our
is
ant txocauva o¢ broper edt wt eomebive oa et erside” fait
a2 .vtreqote sat to onlay od ot oa gatbalt efor eae
.netteetmoo tedt tuo tsed ton Beeb Broost ‘ett motaige tho
ysteqora edt to eviav fedten thet sat tadd boitivast’ ade
00 000,008 bas 00,000,08M4 neewted sow . SSO rl ted0to0at
betatf bad ed SSCL at todd beititeet ef soltanimexe~ae0ts ‘n0
‘qu bomesfo tog of teabto al" 200000 0888 ## ytteqotg edt
eid a8 3i eveg itivaisiq ot tot galytitees Besant iw eq
(888 rodmovol) patytivest ean od omit sit. eset cnet
100 ,000,088% 09 00,000,8889 sort dttow eaw ytregora edd
doold edt to tied djvoa sdt te tenmwo edt ssw hicasikion
sbefacel aaw yerejore oceT edt doide mi B@o® asbireqe mo
@oOr mi tedt boftisees Ttisatote $a tok aednd iw teddona
tot 00,000, 0889 Herstte need bad od mtd blot MOtHeat AH
Siow ton bad ed tend teceer beeterqxs of bas ,tatosv ata
edt ao @payttom tetit od¢ Beosfa odw mam oft pomld dedd de
& beosla ytd ted! biss Sueet bod ett exueee of Yeteqotg
‘ted? bre efee tot ton tud “seeoqeag aeor tot” si no BuTev
“ed} to omit edt te etasd tedt co evisy oti Berebtaace yds
= 00,000,888 of of mottemtal Of e808T ond YO SORRYOTHOO
qonsbited Lerewey ont Antty T sseer yee od ton® Brow #2
benwo odw sesuttw A "seu og OF aod end ¥otztRRD deltd ae
Gow od dodate bao aAbIredé to bie teew Silt ho YPxdqota
* bolebomst I Sroted™ (Seer at feet oq’ ealey i 50tuthe
th evig Dinew ,aottessp nt Yteoeorg edt ot bubteq AMS tite
eT gadyiivest eeesentiw axeveg 00,000,869 to estar’s
( tekwatenoe aid Yo Tedd AY eat gated invite ‘to ome wort antel
add Soot ew tL cova oa
oviev of es teteem od? yd motentonos edt sade woly
et S
1u0 at ybtone: ed¢ at leis iule ote ‘Its fat ¢
fn
Opinion, would, nevertheless, justify a conclusion that it
was very considerably above the aggregate of the encumbrances
against the property, and, therefore, the master was justified
in considering this element of value as an important one temnd=
ing to show that the Paces would not have been willing to
part with their equity in the property at that time for
$25,000.00 or for $30,000,00,
Appellant makes the further contention that the
evidence in the record fails to justify # finding that there
was a debt created from the Paces to him, and that as there
was no debt there could be no mortgage, This is based on
the further contention that the Paces never promised to repay
him at any time. It may be that there is no direct evidence
of an express promise to pay, but that is not necessary
to support the finding that shove was a debt. There is much
testimony tending to show that it was not only understood
but expreasly stated by the perties that this money was @
loan and was to be repaid in the course of three or four
months, and further that the agreement between the parties
was that the deed from the Paces to Harnstrom was to sonvey
title to him for the purpose of security for the repayment of
the debt. Pace testified that in the fall of 1922, he and his
wife and Harnstrom hed been close friends for some time, They
all lived at the Edgewater Beach Hotel, He said that he
had a telk with Harnetrom shortly before this deed wes given,
in which he told him that he needed $25,000,00 and that Mrs,
Pace had consented to permit him to borrow that amount against
the property she owned, which was the property in question;
that he told Harnstrom there were two ways of accomplishing
it if Harnstrom was willing to let him have the money, One
as
ie ti tedt aodeyiones Yitten;, «eeelodizeves .bivow .meiniqe .
geometdmuone edt To etegorggs oat oveds Udersbhs anon - ULOF aan
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’ “beet enc tastrogmt os ea outsy te taemeta. aide. gatrobleage al,
ot gailiiv ased aved toa bivow eeost edt _tsdt wo da ot gat,
uot eatt ted? ta yirsgotq edt mt YWiupe tied? dtin dreq.
100,000,088 10? zo 00.000,888
odd tac} aokenednoo todivavt oat eoaae taatiogga”” *' °°
stodd an? yatbnit * ytLseut of eList Srooét sitt ai boitebiy
sxost a¢ ted? bas wid of 908% ed? moth beteito tabs olw
ao boned ef eit} ,egegttom om od Bisod' otsdt ddeb ‘on Bae”
-ysqet of bewlmotg r9veq eo00% odd tact achiaetmos Teds wT edt”
sonabivs tosrib om @2 atédt fads od Yew FL yeh yas $8 md
c tesecosa ton et tal tud ,veq od eptetmy eedtqxs ai to!
dos ad STOHT 4odS5 & sew SrOns todd Qeibalt edt seoquue OF”
— heotereba Yfto fon caw th dead woe Of gatbast Yhomisacd”
8 aaw yenon eit tadt eottrag odd Yo botate Yleastqxd Hod°
diet 10 astdt Yo catues Sut af Bisgst ed of gaw bab aot’
asitrsy oft mowted themootgs ott tadd eodeaet ‘bis ettaom .
“yevaos of @o% mottantell of cee! odd mdvt Beeb ode Fad caw”
to tromysqet. odd “cot gtiaose to gs0grug oft tet mbit ‘ot eld tt
wht bos oa 80 ‘Go tae as “Hi Head’ nditig bad bide’ adh Oe"
‘yest sonlt n02 ‘wot abaotzt sacle meed bad mortai ‘bas etiw
a ae tedd bse ex | ,ledou desea vosawonha’ od" +s bovit tts” |
_— qtovig aay boob edd sroted YLtxoe mordamznit abtw aiad w bait”
ie wma tat hho 00. 00d Bk octet stoned abd stadia! fotan a “a
: es i a
eS ee ee ee a ee I ee ce eet ee Le a GP ee a eg ee ae eee ey
ror to exon owt’ ee tsdt
ay il ‘Veron edt oved mid ead ot abbvcae ts veh + eave tt #1
ate:
way was for Harnstrom to take a mortgage, "and the other
if I do as I did with Dawson about five years ago when I
borrowed $22,000.00 from him and pat up the deed as
security", He testified that he told Harnstrom that the
flirst mortgage of $200,000,00 on this property had been
reduced to $190,000.00; that the amount due Lill was
about $26,000.00, and that due on the third mortgage
was about $12,000.00; "and if I get this from you it
would make about $253,000.00", He testified further
that Harnstrom said he would not be interested in a morte
gage “but if I loan you the money on the deed" he wanted
to know when it could be paid back, and Pace replied that
he could pay it in three or four months; that Harnstrom
wanted to know where he would get the money to pay it back
and he replied to the effect that the second and third
mortgages were due and the holders were pressing for pay~
ment and his plan was to put on a new second mortgage to
clean up the two that were due ‘and also take care of this,"
He further testified that Harnstrom replied that he turned
his money pretty often and he ought to have 20 per cent "on
@ loan like that," which would be $6,000,00 on a $30,000.00
loan; that Pace then explained that he only wanted $25,000.00
and he added "I will give you $5,000 or pay you back thirty -
for the twenty-five when we pay you back," to which Harnstrom
replied, "All right, I'11 do that, But I want it understood
that I will want you to pay me 7 per cent interest on my
money while the money is out," to which Pace agreed. Pace
testified that Harnstrom added "I will finance you for
that amount of money." He further testified that he tried
to get Harnstrom to give them some kind of a guarantee “in
Ps
redto sd¢ baa" ,ogsgtzom & ost of moxtenital tot sew yew
I porn ogs ereey ovit tvods moewad dtin bib 1 es ob I it
es beob edt qu tag bas mid mort Of ¢000 , BSF beworzod
edt tedt mottentgH bfot ed tact beliises? sk «yd Eauo9e
reed bad yireqotg eidt no 02.900,008% to egagt ros tenth
asw [Lid sub tavoms ont ted? 400.000,08L% o¢ beoubsr
agegitom bridt sdt ao oub éedt Aas 00,090,088 suede
ti voy mort atdt tog I ti bag" 300,000,812 tueda esw.
asftrut boitites? of . "00,000,588 firods exsm biuow
=tron s nt betsorstat od tos blvow ad Biae nontectait bce
Bia Gy
7 eran aoa ee a ‘
w 4en
eS Lee
ted Bibroes oti ie oo "pide ‘ed bruds ot gedw per |
mottenigh tedt zedtmom tuot to eetiit at #2 “yee ‘blue of |
fosd ti ySq ot ysaom sdf fs9 Hivow ed ersdw word od petmss ;
bridd bas broose edt tadt tostte add o¢ Betiqe:' ‘dBase |
—ysq rot gmteaerq orew ershLod 9 dit hae eob stow e8génFtom :
t ot @guytrom boooee wen s mo tug ot sew mato aid Bas #rom
"eidt to eco fst opts bas" end ovow tetd ows Odd Gu mBOLo
hemnut od teat beifcer mottantal tedt hertiteed wedsedot ex
mo" neo req OF eved of tiguo of bas aethe Ystorg venom Bid :
. 00 .000,.08@ s mo 00,000,.8¢ ad biuow do idw "tet ‘ouit a@et s
| 00,000,884 betasw yino od tekt benistqxe noft soet Padi pasor
| Ytridd Yoed woy y8q to 000,é8 voy evty rhiw ¥* pebbs’ ot! bas
* mottenteh doidw ot “ axosd coy yea ow neliw Sv) tayeaewd” eit tot
booterebay ti tasw I tof .tedd ob (Ft ptiigie Tra” ,detlger
ie a 0 tuotetat tase req fom yaa of voy dmew Fhiw'r Hede
— eoag \Beetge 908% Moldy of "ao at Yomom odd eo ftiw yohom
Td nn rot voy somentt {fiw I" hebhe moreeitad PS? hertedhos
“botit ed tet beititest tedsiyt of ““/yonbin to tnoms Heads
i > Rag “ame
—E ae
Do.
case you die or in case something would happen to you, that
would protect our rights in this;" but that Harnstrom said
in view of the fact they were such good friends he weaddnie
need anything of that kind. There was also some additional
evidence along this line which it will not be necessary
to set forth heresy The conversations testified te by Pace
were denied by Harnstrome,
In addition to the reasons set forth in the master's
report supporting his finding that this conveyance was a
mortgage, the record shows that Harnstrom admitted on cross=
examination that he did not take possession when he received
this deed; the leases were not assigned to him; the insurance
was not transferred to him; and he never paid taxes on the
property nor any of the interest on any of the encumbrances,
Pace t stified that on the morning of October
28, the day following the conversation previously testified
to by him, he met Harnstrom tin the lobby of the Edgewater
Beach Hotel and the latter produced the deed to be executed
by the Paces, and an affidavit also to be executed by them,
cowering their title, and a check for $30,000.00; that when
his wife moticed the amount of the check she commented on it
saying she thought her husband was only borrowing $25, 000,00,
whereupon Harnstrom explained that the check included his
commission and that he and Pace would "fix that when they got
down to the bank, = that le did that in order to keep his recoris
straight," He further testified that they had some talk about
thd time within which this money was to be paid back and
that his wife thought three or four months was probably
too short and Harnstrom assured them that if that wasn't
enough they need not worry, for he wasld give them more time
Bo gadt voy of xeqqad bivow gaidveucs sate ah 10 sib. uOY, SRe9
as | bise mottentsh tedt tud “paids Beh: atdgiz tuo soatotq bivow
| Samives ed ebneitt boog douse arew yedt tost.odd to welv ak
Isaottibhs emce oals asw ored? ybaid ted? te gaidd yas. beer
yrseesoed od ton [liw tt dotdw sell eidd gaoia sonebive
eosi yd gt bettitees snoitartevmeo eat ,ered dicot, tes, ot
amotsant sh YI hetash een
eck esr
aixetesm oft ai dirot ton enoeser edt ot nott bia ‘at
& BSW somsyevmoo aidt tedt guint’ abd satdreqqve Ba
~enoto co bettimbs mottantsl tet awola prover end qogeuetom
bovieoss ed made , aotesseaag eidet ton bib ‘od tact noitanianxe
a oy te
sometveni edd gmid ot Sem tase ton stew asesel ‘odd “ibee ‘p ald? ‘
os aie
edt m0 eexat bisq teven ad bas mi ot bors tanetd ‘ton
_asonetdmyens oft 1 YAS 10 teoretat ost to “ws ‘tom ‘ abasiq
heetees Se Bike
tedetoo to gaintom dt no tent beltitect. Peete, ae tt Ons
beititeet ylauciverg soltserevace ent gatwolfot yeb edt. ,88
| teteweghG odd to yddol edt af mottentgh tom ed, mtd yd-ot
@ 3 betwoexs od ot besb sdt heowbotg xsétel edt. bas feteH dosed
mode tadt {00,000,084 tot sede # bas ,Idtt x tedt gabzewgo
me ohiw etd
| <00,900, 28% gaiworred yino aew hasdend rot sean
Se aid bebsfont toedo add tedt benialqxs: sottenieh aoquetedw
ti co betnsmmoo gde aosds sdt to ¢auome eat Ba
“ton weds asdw tedt xii" bivow soad bas en sadt bas aoteetamoo
- abrooe etc qeed of mobro nt tedd bib ef tadt = qdaad edd of awob
4 tues Aiat emoe bad yorld tact bottitect rodétwt oH "ePdgsente
| bre dosd Bikey ed of ssw Yenom atny dotdw midt iw omtt mds
Vdedorg exw wdévom Tero verds sdguoMh etiw eld dedd
; cll
mute Stom medt evig bleew sf rot saan ichatdliaoteal walt
whee yd betwoexe ed ot cals tivsbitis o8 bas yasogt eat yd
Paeee fede te ted mene ee
—lLl=
if they needed it; that Mrs.Pace said she thought Harnstrom
was making $5,000.00 pretty easy and he replied that he made
his money by turning it often, and Pace remarked that "if this
runs & whole year you will be making 27 per cent," After
the deed was signed and acknowledged and the affidavit had
been executed and Mra. Pace had endorsed the $30,000.00 check,
Pace and Harnstrom went down town to the bank, There, at
Harnstrom's request, Pace endorsed the $30,000.00 check, where=
upon Harnstrom handed it to the cashier of the benk, who in
turn delivered two cashier's checks to Harnstrom, one for
$25,000.00 and the other for $5,000.00, both drawn to the
order of Pace, The latter testified that at Harnstrom's re=
quest he then endorsed the $5,000.00 check, Harnstrom explain=
ing that this tepresented his commission; that Harmstrom then
handed him the $25,000 check and he handed Harnstrom the deed
and the affidavit; and that Harnstrom then went to a teller's
window and deposited the $5,000.00 check in his account, He
further testified that he made some effort to get Harn=
strom not te record the deed but the latter explained that
kb would have to do so, "because if I didn't I wouldn't have
any security,"
Early in the hearing (December 11, 1923) Harnstrom
appeared before the master as a witness and gave testimony
supporting the allegations found in his pleadings. On cross~
examination he insisted that the amount he had paid for the
equity in this propetty was $30,000.00 and that if was not
true that the amount the Paces got from him was only $25,000.00.
He denied that it was any pert of their transaction that he
would receive $5,000,00 back immediately, and he denied that
#
ali-
ete roy Ree
noetasigh tigvedt ete bise eog%.atM ged? 4o4 paniesisielih Xs.
seam od tect beliger ed bas vase. ytterg 09.000 .28 gaidam asm a
; ss gide TE" dudt boatemot soe bas yaetto ti gaimad yd yonom pid 4
moda “atmo Taq TS gaidem od Lliw voy se0y elodw 6 enue 7
bed divebitte oid bas Sesbelwonies bas bemyte age Beeb, edt q
eXoedo 00,000,088 sit beetobae bet sosd .axh Bas besuoexs ase
: ts ,eTsdT .tand sdt of mwot swob twew mot#eaield bas 9nF 4
aston .afoodo 00.000 059 edt beerobas sosd .tesspo1 atmortantso 4
gt otiw cdndd edt Yo retieso act of #1 bobuad woxtunt, { nog
he sot ono Motta at gH ot ptoodo e!xeidess owt ‘pdudvetes® oF
“edt of must dtod 00,000.88 cot xosito ois bas 00,000,884
swat etgottemrgl ts tsdi beititees costal od se0et to rebte ,
matefqke moxtanteh eXoado 00,000,a% ault beerobao aeds od “feeup ;
pail bier take a0 atdincs “oid betasastqet ef dt ssdt ‘Bal 4
beeb edt mort ex tal bebasd ad bas xXoedo 900, 3k adit amid bebaad 4
2 gitalist 8 of aow nodd mottsatel ¢eit hag qttvebltie, out ee
| 8 stmuoons ald ai soos 00,000.88 edt betincgeh: bas wobate
“Hite ¢eg of d4otie once eben ad telt boikidand tedtumt:
= tedt benisiene tedvsi sit tud heeb edt arooer ot ton morte.
is evaed tlabluow I t'abbth I tt eananed® y~os ob es sees
t ome partven sl
mottentsi (8S8er .ff tedmecat) antitsed odd mz vitst 4
Sexy i okitd Be
-yatomtteet evsg bas neontiv 6 aa totesm od? conten 4
v4 4, en ; a
=s8070 10 \eumibecte wit at bayvot anoitags (fe ont ery ogaue B):
| | edi rot bisy bad of tacos oft dedt betabeat ad noitentuaxe
tox sew BE tadd baa 00,000.08 ean yiteqorq side af Yinpe'
4000.88 yino esw mid mort tos epost oft taome ody salle ‘ewtt
‘ oo tds noitosanast thay to sive “ scl todd ‘beisss oi
teat deine od bas euistsibonns ioad 10 ad evieoex b
Bm ik | A apis we) pti,
#“12-
the fact was that he did receive $5,000,00 back at once, in
currency or otherwise, He was asked whether it was not a
fact that at the time this transaction was closed he secured
a cashier's check in the State Bank of Chicago for the amougt
of $5,000,200 payable to the order of Pace and that the latter
endorsed it and handed it back to him, and he said that was
not true,
At the next hearing before the master which eaccurred
about a week later, a clerk employed in the Auditing depart-
ment of the State Bank of Chicago produced two cashier's checks,
both dated October 28, 1922, payable to the order of Pace, one
for $25,000.00 and the other for $5,000.00. The latter check
was endersed by Pace, following which was the endorsement
"3, Harnstrom & Company," which is shown to have been the name
under which Harnstrom did business, This check was paid
m the same date, Late in the following April Harnstrom again
appeared before the master in rebuttal, the lapse of time being
explained by the contention that Harnstrom had been in very poor
health, and, according to a physician's certificate, unable
to testify, The record shows that there was a Mrs. Wilson
who has known Harnstrom since 1910, and for many years had
been his renting agent, handling his property, and at the
time the evidemee in this case was presented to the master,
she was acting as his nurse and secretary. Harnstrom testi~
fied that he sent her to the Recorder's Office to see if the
title of this property was in Mr. and Mrs. Pace; and that she
later took the deed from the Paces to him to that office to have
it recorded, When he testified in rebuttal, upon the occasion
above referred to, he stated that he did not endorse the
~Sf=
ai ,sou0 te doad 00,600,288 evisost bib od tedd-aew toast od?
2 ton esw ti vedtedw betes aaw eh ,gaiwredto 20 yonentuo
betuoee of heeoso esw moitosanats eidt omit, ait (48 tadd test
tiyvoms oot rot ogsolnO to dagh otare edd ai toed e'xetdeso &
tettel edt tadt bus e@o2% to tebte sd? of gideysg 00,000.39.%0
asw tedd Stee sd bas <mid ot doed ti bobasd bas #2 bearebae
| >yearte ter
fextu008 doidw retesm ont etoted gatraed 4 #xon oxi a E Fiuy ten
mSIBCSDH galt ibus edd ai beyotfame dete a cot at is 8 ¢ suods
ty ale
- eattloado 2a! reiriaso ons beoubeoxq ogee ido te Aitgt ot oye ode ‘to ‘tao
emo .298% te rebro edt ot efdsyedq e8SOL 288 sedodeo korak itod
_ doodo tattsl ed? 00,000.88 tot redo oxtg bas 00,000,888 tot
ta9msetobse edt ease doidw gaiwol fot 608i vd Deorobas oe
ener sit ased evad ot awode ef doidw ",yasqmod ry wortantail 8"
bieq sew doao ald? .ecsntayvd bib mortantaX dotiy reba
yoriee montentslH [itga gniwolfot edd at otal ,etab pales ode i
gated suit to saqesl edt odes sates ai rot eas edt ‘sroted bexsouen
— reeg yrev ai need had motdentsk tend no £¢nsd200 ot ww peat ators
eidsay ,etsoltitteo etfaatoieydd 3 ot satbroces: baa «at fad
moali¥ .arll s esw stodt tent ewosle boost oat ge py ot
‘y PF ade ts Vigiae
by: bed etsey yam tot brs ,OLCL eonie mottanteil swont ead onw
| edt ts Dae ,yiraqorg aid natidbasd ytaege gattoet aid used
3 a qteteam edt of betaseerq ssw ee20 etdt at sem@bive- edd omtt
‘mitveet mottamtsH ._itsteroer Bos sete eld ee gaties esw ede
ot TL 89@ ot sotTtO s'tebtooeR edt ot ted tnes ef tedd belt
ede sait Sas jeost vari bas .xri ni aaw ysteqotq eidt To! eisit
ova ot soltte eadt of mid ot eods% odt mort Beeb: edt: dood wets!
\ ae EES A
Ub ep 4
Di es
CS ee ae ee ode
Pe ee ee
Pe ey ee eS ae eee
=13—
$5,000.00 cashier's check in the presence of Pace, as the
latter testified, Furthermore, he denied that Pace had
handed the $5,000.00 check to him, but he said: "He handed
me the envelope with the deed and the —- Well, here are all
the papers, he says." He testified that he then took this
envelope over to another part of the bank where Mrs, Wilson
was whiting, and handed tt to her, He was asked how he
came by that check, in the course of his direct examination,
and he said; "Mra. Wilson handed it to me to endorse it;"
and that she handed it to him with the request that he apply
it in part payment of a loan she hadpreviously made from
him on which there was due gomething in ewress of $5,000.00.
He further testified in substance that the PaceShad been
trying to get him to buy the equity in this property for
some time but he had repeatedly declined to do so, and that
they had finally enlisted the services of lMirse Wilson and
promised her that if she could induce Harnstrom to buy the
property they would pay her a commission of $5,000.00; that
she, on a number of occasions, had urged him to make this
purchase, and he finally agreed to do so, and this $5,000.00
check was in payment of the commission which was due from the
Paces to Mrs. Wilson for negotiating this transfer, in
explanation of the absence of iirs, Wilson's endorsement on
the check, it was stated that she said that rather than en~
dorse this check and bank it in her account and then give
Harnetrom her check, to apply on her loan from him, he mi ght
as well take the check as it was and apply it as she requested,
Mrs. Wilson gave testimony corroborating this version of the
$5,000200 check, Both Mre and Mrs. Pace took the stand in
~E i
e's > ae hy
ix t9.4% edt
edt es ,908% to sonssetq adi at aparo at rotdeso 004000 28
bed eoad tedt beiash oa setonte deat boltitest gees:
RK. & Pid 9
bebasd eH" :bisa os tud .mid of doedo 00 «000.88 ode bebaad
TERE RE:
[fs ste ored .ffeW¥ -—~ sit bas beek st d¢iw ‘ego fowas ‘ont om
atdé doot sadt od tant bettivest oH "ese od “eroqay ot
mosliW sex stedw daad edt to frag reittens ot revo egofevse
ed wor betes esw of ted ot tt bebaad bas walt ssw
Mottsatmexe toerib eit to saryvoo oMt mt yaoon sadt xd 889
West oerobse ot em o¢ ti bebasd moeliw ,ath* «bisa ed. bas
Yiqas sd tedt teeupes ont cttw mid oF $2 bobued one) tat) bas
mort sbam yfevolvetqbad ste asol a to dnremysy tusq) ah df
(00,000.28 to amewas ai gatdtemon ub daw ened do ine mo subst
“need badtenet ot salt oonstedve at bectidecy vodteud oH
tot yireqors aidt oi ytieps edt yod et mid veg oF gabert
tedt bas .oa ob oF banifoeb yYibetasecer sd ort tud omtd “snore
Bas moslt® .ert to esoivras odd beteting Vilsal? bed yodt
edd youd of movtanted soubat Aivos ode FZ todd tod Deatmory:
“ted 700,000.89 Yo nofeetomes & ted -qeq-hloow yodt-ytreqenq
eidy adem o¢ min begwr bad ,anotessoe to tednue 8.20 (eads
00,000 ,.6¢ eide bas .ov ob of bsergs ¢ilaett-ed bas \yeesdoteg
edt mott exb eew doidw aoiekimmes edt Yo sasmyeq ah ase stood
gi stetansxt eidd gaiteitogen 10% moaLew-,et.ot geost
80 taenearobae 2'nosli¥ até to soaceds add to.aottekalgxe
| =e medt tedter tedt bise ede tedt hedste eew ¢2.—%0ed.odt
) evty aedt bas taveces rod ai $2 asd bas wede atdd epzob
/ Sigin ed guid mort asol xed mo ylags of gieedo ted sottenisH
ti cheteaupet ede ae tf YLoqs bas egw tt as soso. out edet Lewes ae
teed Re-neteray gid? yoteexedoeree: ‘Yoonitest eveg aeolth..exM
oe
Ota
«fb Base edt dood ee0% .e7M baa 42K dtod » Hooda 00300088 .
=14=
rebuttal and denied that there had ever been any such
arrangement or that they had ever had any conversation
with Mrs, Wilson involving the sale of this property or
any services she micht render in connection with such a
transaction,
Pace testified that he made an arrangement for
a mortgage to clear up everything, including this loan,
early in 1925, At that time Harnstrom was in ill health
and absent in California, He testified that he called up
the hotel at Los Angeles where Harnstrom was, on January 28
or 29, and talked with Mrs, Wilson, telling her that they
were ready to "put up the money and wanted to know how
we would arrange it about getting the deed back," and she
said she would ask Harnstrom, Objection was made to fur-
ther testimony as to what Mrs. Wilson told the witness,
but he then said that Mes. Wilson sent a telegram, That
telegram appears in the record, dated at Los Angeles,
February 2, 1923, addressed to Pace and signed by Harnstrom.s
It reads; "PUT UP YOUR MONEY TITLE AND TRUST CAN WIRE ME,"
The record shows that later in that month the Paces arranged
to borrow $54,000.00 from one Shelensky, and both these
parties entered into an escrow agreement which was deposited
with the Chicago Title & Trust Company, This agreement re=
cited that Shelensky had delivered a check for $54,00,00 to
the Trust Company, pending the issvance of a title guetantee
policy on the property in question, on or before March 15,
guaranteeing against defects in the title of Mre. Pace to
that property, subject only to certain formal defects referred
$0 and the first mortgage then amounting to $190,000. 00%
hE
foyve yxs seed teve bad ersdt tent betnsh bas fatiudet
soitperevnco Yas bed teve ded yeds ted? 10 teemegasrts ;
to yYirogorg etst To ofss edt gatviovat soaliv, .esK. atiw
2 foue dtiw moltosases ai tebast tdgim ede esolyzes. yas
oS 8 ct
tot tremegnerte as Shem si sed? boltitact ebs%
feel eint gaibs font gaidhyreve qu 1eefo “ot ‘egsqttom 8
dtised [ff at aay moti eat sts auit tect tA veser a yirse
qi bafiso ed ted poltitees of .ebaotaten AF sibel bas
SS yravde. a0 . sew mothanitgi erode aoleynd aod. te fetot” edt
veds Fade Got Sailted aoelty Leth atiw bedfet bas .08 x0
wod woax ot Bejasw bas yonou edt oy tuy® oF Ybsor Stew
ade bac ",doed boob Set yattves tvoda tt egaerts Bivéw ew
“—eyt et Sham aew moitostdO .movientst tea bitiow eda bias
.Ssentiw oft blot Hoeli® are sacw ot ee yromitesd weds
tedY sustgelef s twee moeln? wey tedt biee teat of tua
“geetegné aod te bet] ybrocer ent at etssqqs memgeltet
smoTeantsh yd beagle bas aoe of Heewerbbe (SSCL ,S yraiedet
ham WRIW aad TeURT GHA GuTI? Yanow Muor ¢a Foe" “pebaee sx
begasrte sed0e7 edt déoom tad at redel tact “ewod “roost on?
@eedd dtod bas <Ytensisd snc mort 06,000,289" worrod of
py botieodsh eaw doitw taomootys wotses as otal betes as HiRes
“oT tabusetyZs aidtT .yasquiod teirr 8 othr? ogedtdd’ ode Hbtw
“ot 00500.888 ro} Hoode & bersvitsb bed viene fede tad? bet to
“sotasteug oft? 8 Yo Somauset sit yatbosq .yesqmoo Pale? ent
| GL Motax dteted to m0 woltasup at Yredory elf ho’ Yitoq —
“ot oOsT .ech TO oItt# sit a) Bdootad vantage yhtbobhitany
| “ bexrretet avostsh Lemtot atesred ot Ylao tostdue \yireqotq ‘Peds
. WS $904000, 0829 oF: o-euhnnnennuatemnaeamier daxtt Sit pnw! og
oe oe weins Gj. P78 SBw at ig istaaead t
Ca i ee
eed
As
y
7
ie
fe ae ; ie ui PRISER tye MUN ot
-15-
The esorow agreement further recited that the Paces had
executed a trust deed to Max Grossman, as trustee, to
secure their notes covering this loan, and that the deed
and notes had been deliveredto the Trust Company under
the escrow agreement. By the terms of the agreement the
Paces authorized the Trust Jompany, in case they issued
the policy called for, to pay to "Ss. Harnstrom amount
necessary to obtain deed = $50,751." and interest; and
further to pay the amount needed to obtain release of
the s@cond and third mortgages, ani then pay Grossman
$100.00; and the balance, less the charges of the Trust
Gompany to Mrs. Pacé, The record shows that it proved
impossible to satisfy the requirements of the Trust Company
as to the title and the guarantee policy contemplated by
the escrow agreement was never issued and the money put
up by Shelensky was returned to him,
On the other hand, as tending to support Hamnstrom's
version of the transaction involving the deed of the Paces
to him, the record shows a letter dated November 16, 1922, °
less than three weeks after this deed was given, which Harn
strom testified he sent to Pace and which counsel for Pace
admitted he had received, in which Harnstrom purports to
authorize Pace to act as his agent “and account to me for
@l the income and disbursements of the apartmemt buildings"
im question. He added in this letter that he had no objec-
tion to allow the agents who were then taking care of the
building to continue to do so, and he went on, "put I will
look to you and hold you responsible and will call upon you
for statements which you will please furnish me at any time
eee ee ee es,
Fen ere Rr ore een
{yr Reps
ee
Soe pmeeter me SS
) Bie = -
0
ore aes ’
r On
a ne
& Saag
~Bi-
bad aeog% eds tadt betiost zeddtet tagapoetgs wotoke SdT
of -gotautt a6 ,semenor) ask of Bash teutt & bednoexe
besh eat tedt os .asel eidt gafieves eetcoan xietd eruose
nebuy yangiod tayvcT odd ot¢betsviteh aged bed ‘aston bas
eit tremestgs edt to emret odd ya -tooneargs wotves edt
hoveet yedt saso ai ,yasqmol teunt edt beslzodius aeond
thuoms moitentsH .8" oF ysq OF «tot betLso NaAtog ost a1
bas jteetetai bas ".[éT.084% ~ besb aietdo ot }
i ae
to sesefet aistde of bebsex tavems sid Yeq oF teats
aseecor) Yeq aedd tis ,eegeygdiom | bride. bas apnoea, att
teuxt ont to gogtado edt eo9f,,eoaslad edt, bas {00,0014
bevorg ts teds swoda brooet ed? ,8ae2% .82M, tall
yasqmoo test? ody to edaenexingot edt Ylelitse at,
eee
Ve Hstalgustacs yoilog oot RATS, ons bas oltit eat tes
tug yenor sat oas bevesi Tevea asw tagmso7ys KoTORe edt
nid of besiutor sew ytene:
Tad
almortentsd troqowa ot gatbaed ae .bned tadto ‘site Ta ha Seene?
asont edt to boob odt gnivfoval noitoseast# edt to nofetev
eS8CL .8f teduavok beted tettel @ ewode wel ont Sat d os
“witgH doldw ,nevig esw beeb atid verre ‘adeow oot tied ‘peed
eos% fot [Santen dotdw bn& eond ot tage on boltiteet motte
ot efteqtug mottemteh dotnw at Sevisosr bed ox ‘pestis
16% en Gt tmuooos bre” toons eid as tos ‘oF eont exibition
\wgethlivd saemdcsqa ott to atnemoacsdet’ baé wm body om
~ostdo om bad of tedd Totter etdt nt bewbe off * oltesup mt
ef} Yo onso gatded ceift stow osiw otneye oft wolle bt Mott
Hliw T sud" no taow oXf bas 00 ob of sunttnos ‘of yatbitng
woy coqe ftsp thie bas ‘oidtenegeor Oy biod baa Hoy 0¢ soot 0c
eutt YOS tS om de Livnig® suselc thin yoy wide ae a oer ste bial
-16=
that you are called upon hereafter, This agreement ig
subject to cancellation by myself eat any time." No explana
tion of this letter on the part of Pace appears in the record,
so far as we have been able to find. There is also a letter
in the record, dated December 16, 1922, to the agents who
had long had charge of the building, appointing them to
act for Harnstrom on this building which, "formerly belonged
to Mr, and Mrs. Pace," and directing the agents to pay
the seni annual interest due on the first mortgage the foklow-
ing January, There is another letter signed by Harnstrom,
"owner," directed to all tenants in the building and notify~
ing them to pay rent to the agmts Cline & Dix, "Mr. and
Mrs. Wme S&S. Pace having diaposed of their interest." Another
letter dated January 1, 1923, addressed to Cline & Dix appears
in the record, in which Harnstrom refers to instructions con-
cerning the payment of the interest on the first mortgage
and asks them to see the agents to whom the payments wine
to be made on that mortgage, and if possible arrange with
them to accept payment ofthe interest at that times
Cline testified that the letter addressed to his
firm, dated December 16, was received by them at that time,
but that the one addressed to the tenants was not received
by them until March 24, 1923, He was asked when he received
the letter dated January 1,}923, and he answered "Well, the
first part of January I think," He was later recalled to
the stand and testified that he had refreshed his memory
as to the letter of January 1, and that it was received by —
him on March 31, 1923, being handed to him personally at
the Edgewater Beach Hotel by Mrs. Wilson. Ip that letter
Harnstrom purports to state that he is ill in Southern
-3f-
at tmemectgs eid? .retisered soqtr Hetiso saa voy tent
-saslaxe of Y.entt yas te Denym yd aoitstieonss of foetdue
<btoost edt at atasqas anst to fieq adt no totter ‘etst to" ore
restel s cels ef stent bait of olds need aved ow es tat ‘os
om efnege sit of ,SSCI .Sf tadmoned beeab prooer ei? AY
3 ot madt gaitaioggs gnthtind eft to og zado bed gnof bad
begacisd yivemmot" .doldw gaiblind aide mo mot fret toe
yeq of atasgs edt gaitserth bas * s0ed er baa jst ov
-woliot edt epegtrom verit ost no exh soiree wt ‘leuvnne tose ody
wortentall wi bemgie tegtel vedtons ei erode “Qetauiet gat
—~etitox base gaibfied odd at ataeast tts ot betosrtb smell?
bad .M* 280 3 oak id wtugh edt og Wk yap be ed
gediend “ytaeretai tisdi to Boeods Lb anived eont a a ae
Fae
a Ve ee UR gale oe
gtsecas xid & galiO ot heaserbhs .ShCLF .f yrauast bedab xetiel
—neo encitourteni o¢ aretot wottentel deidw mt ‘Wieder ee “ak
pager tom ganit edt oo tesretoai edt to tromysq. “et 5 i ate)
oT6W atasmyeq off modw ot atnens edt sea ot modt efus bee
atiw egaerre sfdiseoq tt bas ,e3egttom. dadt ao Sham ed.og
*onit tant ts teeresnt eddie daporgag,-2qenn9 ot medt
eid of béesetbbs ssttel oft tadt bettites?,eahl®. ».4> eualt
<enit tadt ta medt yd bovieoer aw SL sedsoceG beteh mett
bevteost ton esw staenet oft of beaseraha ono edt tadt ted
bevisset ed asdw heise asv of .SkCL AS Motel. Litmy madd yd
ode -itoW" boxewans od bas .S8C4, 1 yragnab hetsh cette l edt
ot bolisoet weiel asw ok "ysaidd 1 yxewngl, to 0, tt8q. tertt
Vromem ei bedeotter bad od tadt hettitest bas baste edt —
WW Bevieoer saw ti fede bas .f. oe | :
#2 YLlesopreq nid ot bebasd gaied yeSeL AE doteM, go mid
“Sestel tedt gl smoartw vex yw saaaeaiaamaatdeittari “
ateritves ot [ft et od tedt otata o@ evtoqzug F utes
=175
Californias
We have stated the substance of the material evi-
dence bearing on the issue of whether 2 debt existed from
the Paces to Harnstrom and whether the understanding was that
the deed given Harnstrom was to be what it purported to be
on its face or whether it was,on the other hand, to be in
the nature of a mortgage. On this conflicting state of the
record, we are of the opinion that it may not reasonably be
said that the finding of the master and the decree of the
chancellor, to the effect that the soonveyance was in the
nature of a mortgage, is against the manifest weight of
the evidence, On the contrary, the evidence is clear and
convincing that the conveyance was @ mortgage and not a deed.
In our opinion no other decree could stand in this case,
Appellant further urges in support of his appeal
that the decree of the chancellor should be reversed because
certain necessary parties were not made defendants, In this
connection it is pointed out that although the Trust Company
was made a party defendant, as trustee, it was not made @
party defendant as escrowee; and that although Grossman
was made a party defendant, as trustee, he was not made
a@ party defendant individually; and further that the owners
of the notes secured by the Grogsman trust deed were not
made parties defendant, In our opinion these content ons
are without merit, if for no other reason, because no such
question was raised in the trial court, As to the unknown
owners of the notes secured by the Grossman trust deed, it
appears that appellant himself brought them in as parties
when he filed his cross—bill. As the record stands they
evi= —
ef oF ET!
ji . } ake oF Fhaidee
ive isitatsa off to sonstedue one besate ved all seb hag lh
moxt betaixe deh # sedtede to svaet ant no paineod | somed
aay
edt eae goibastarebay odd. sediedw has mort ental *,. etoat ost
ed of botroqivs ti tadw ed of Baw MOT RIB novia bosb oft
ai od ot ,basd redto edt wo,ee8 tt zedteds tq, Cost 622.80. .
edt to state gaisot{tace aid? 0, .egeytrom & to. exten | an ot ‘a
ad yldsnogser tos ysu ti. tedt soimige . adg to ote ew am rose
- eft te aetaeh edt bas tedesm ont Lo galbalt at eae ie ve
edt ai &aw enmeysv aoe: edt tedt tostte edi ot _ eto Lfeoasdo ay rede
to tdgiow seotinan edt Janiegs ef wgsgiton | 8 re STut Se
igectt “eet
bas teefo et somebtve ony eXtattnep eit 20 seonsbive efit | "
Bl RRS ee ee sae
re bash S tea bas ogagitton & 824 90 MByovVaGo adit tsdt gaionivaoo —
meh pete eertel
+2880, es aa baste bives eet0eb reside « ont a bins apal
fesdqs bir to Frogque mi eogey todecut teeffeqma © % sol hres
easeoed Beerever ad bivode rolleonsdo sft to setosh od: ¢adts.
aidt oI .@# achroteb eber ton eter eetirag qrsaecosn metres:
Yaeqsod teuyT edt dguortis tede avo betakog et: +t aotvoenmon ©
8 siem tor eet tt .wstautd ce .taabae toh yeweg 6 ob|em eaw
Mamseoro dgcodtis tedt Das yoeworsee oe trabasteb suse °
Sham ton esw of ,oeterrt ce tasbarsteb oireq & eben ese:
stemeo att teddy rotttet bors {Uileubivisat tashaoteb yesq wo
‘Sor stew boeh teott mameeoss sdt yo borne oe ‘wet on “oxy! ro"
ato #netnoo sesdt actal¢o wo al .tachasted deteteg ahem:
dove ott ‘dasicoed “,Oeast tr9d3o oa tot th Gebrom quodtiw era.
awonttc edt of @A .tiwco Isity oft nb beater wan motteaup.
oh ~beeb faut? apmadoro sit Ydubetroee aston adé to -eTeAwe «
asitres se at medt tdgvesd Iioamid tue (Leggs dedevwnseqgs!
. Wut baste broser edd wa) wilkd~seoto aan dione ciel
mLb
were not necessary parties to the complainant's bill, for
the esorow agreement to which we have referred shows that
these notes had been delivered under the agreement to the
Trust Company, and when the Trust Company was authorized
to return SheJensky's money to him, they were directed over
the signatures of all the parties to the escrow agreement,
to retain the securities, An escrow officer of the Trust
Company appeared and testified that the notes were still
in the possession of the Trust Company. The decree finds
that these notes “are now in the possession of the defendant
Chicage Title & Trust Company and ought to be cancelled and
_ delivered up to the makers, "and by the terms of the decree
the Trust Company is restrained from parting with the custody
of these notes; and the defendant Grossman, as trustee, is
ordered to execute and deliver a release of the trust deed,
which had been given by the Paces in connection with those
notes, Although this specific relief had not been prayed
for in the bill, it was entirely proper to provide for it in
the degwee, under the prayer for general relief, It is com
plaaned that it was error to direct the release of this
trust deed without ordering a cancellation of the notes.
As already pointed out, the decree specifically finds that
the notes shoula be cancelled and delivered up to the makers,
and we assume that such a course would be a neeessary part
eof the operation involving the release of the trust deed.
It is claimed that the trustee under the first
mortgage and the agents appointed as mllectors of the
sinking fund, set up to meet the first mortgage bonds as
they came due, were unnecessarily parties, In our opinion
this contention is without merit. They wer? proper parties.
«i [>
tot ,ffid ettasaisiqgmoo at ot ao lirag Trsnasess FOR Sxem
ted¢ awode berteter eved sw doidw of tasmesTtgs® wotoss out
eit of sxomsargs ot? ebay beteviTSh aed Hed serou seodt
benkrodéus anew yaeomod fautT edd mode bine yydaqmod’ Pent
xsvo besoorib stew vadd ymid oF Yeoron ef yians fede turer ot
einemee tgs woross eds of ssittsq edt Ife to eereteny te odd
‘teaver edt to xeoitto worors ak jneiviisoes @dt abate ot
ffkte ovae aeton add sadt beltivaet bas Sereeqqs yaaqmod
ebatt serosb edt ,yaeenod tent? sit To doteaSenog edt at
tesbrstob eft to aelaasadéq odd ni wom eta* astvot saedt tadt
Boe beffeonso ed ot ddguo bre yraqmo? fenrt &.8£skP eg Ho tdl
estoab sdt te awret sit yf bae® .eredan eff of qh SexevELeb —
ybotado sat dtiw gaid¢teq sort bemtarteot et yraqmed tavtt edt
el ,setevat a8 ,feesaot) tasbasteh ett one qoston eben? to
ebseb teurt edt to easelet & TSVEIeb bas stupexd of Betebto
seodt diiw soltoennoa at asogt adit vd aoyig. used bad do Ltw
hbsysetq ased ton bet teifer oftiesgs eidt ‘dquods 1a _ aston
ai tk 10% shivorg ot xteqetq yletitas enw tk eilid edt ai rot
“moo ei tl .toiisr [eteneg 16% reyerg sdt tobaw some ont
_aldt to easeles odd tostib ot TOmme asw rt teds bonis
sneton edt to soiteileonso & anizehre duos iw hgites I ul
tad? ebhait yllsoitioegs seroab edt tuo petahen » sits jute bag
eatodem et of qu hereviteb bas heilepase og es ee ent
deg Yisesesend & 3d bluew ee 11100 rs) Henin tad Smveas ew bas
-beeb tauts exit So e429 fer odd aatviovar nottensgo eae to
‘CE : SSF ae eno.
verit odd reba seteuer oct todd bemésle wh et iw exe
ort Te atotoel(@ es betatoggs atneys ott Has ‘Sgegttom
is abstod syagitom faxtt edt teow oF qu tow bau ‘yatdainte
koimiqo tyo al .aeittag yLitadesoomny pranlebhancsiioseinmensind
_ aeeteae senor stow yon? yhireat twort tw _e
a a
=19—
We find no error in that part of the decree
fixing the attorney's fees at $4,000.00 or taxing two
fifths of the costs against the appellant,
It is further contended that even if all the
evidence in this case is believed to be true except that
produced by Harnstrom and his witnesses, the decree should
be reversed because it is inequitable and unjust in that
it does not require the repaymmt of $30,000.00 with
interest at 7 per cent to Harnstrom but only $25,000.00
with interest at 5 per cent, In view of all the evidence
in this record we are of the opinion the decree as entered
was in all respects equitable and just,
It is finally urged that there is every evidence
of collusion between the Paces and the complainant Lill,
such as should ber either of them from any standing in @
court of conscience or from rectiving any equitable relief,
We agree with the finding specifically noted in the master's
report on this point, to the effect that "no collusion between
the said Lill and Pace has been established," In our opinion
there is no analogy between the situation disclosed in
Caaper National Bank v. Jenner, 268 I11. 142, to which counsel
have called our attention on this point, and that presented
here, If the Paces found themselves in a situation where
they were unable to get the title to their property in such
shape as was necessary to get a title guarantee policy, de-
manded by one who was ready to make a sufficient loan to
clear off all the encumbrances against the property junior to the
first mortgage, and without such loan they were not ina
-8{~
getosh edt to tteq tadd gi 2orrte on bat? om
eevee ie | a ei
out gaixet to 00,000.58 Ja aset etysnmed de odt | paix)
kx? Eb ES
staal lenae ott teaisgs stz00. oat. te ade
ett Ife tt seve ¢ait hebaotrod redtiet et #1 mina od
ged ¢qsoxe avtt ed ot bevetfed ei ease eid? ah tomebive
bivode setoeb oft .eoacontiw eff bas mothewtgy qd beouboty
tedt nit tevpay bas eldetivpent ef tt sebsaoed beetever oe
Atiw 00,000 C24 to dmuyaqst sit eriper' tor eceh ee
003000,889 ylno tud mothantal of toed tog Mite teererat
sonebive sit [fs to wetv al tase tog Sts teetstar ttiw
beretas 86 serseb oct moiniqe edt to ete éw Htossr ekit' nt
«taut brs elder tops rapenctess 2028 a
sonabive yreve st ered? dadt bogus yilent? at 1 :
: on eehro
lh taertelesce edd bas aseat eds neewted ‘notent es
rele oe Da Tee
S ai gatbaste yas mort wont to todd to isd a a .
ote flor sidetisps yas gnaividost sort To be sue g ee
A a
r 3a?
a! retecm edt mi beton viisottiosge gatbatt adit Aste o9mgs ow.
s feul ®
m9 wred aoleuifoo on" ¢edt togtte ocit ot <datog aidt mo ‘ter.
Moinigo tuo sl "“,bedeildstes ueie aad 2924 bas fLtd bise eat
ai beeoloeih aoitaytie ed? asented wre. on MM nist .
rs) beh,
Ne | feamsoo doidw ot .Shf ,[1f 988 cZasuiek ȴ, :
betnesste tatt bas .teiog eidt mo aottastss we et.tep iter mn
sted moiteutte 2 ai sevleensdt hawet asont alg e e794,
feue mi yireqotq Todt oF sltit sodt tey of ofdenw exew vodt
~ob “.yoifog setnetevy sItit 5 teg of yitededem ‘eaw as eqads
ot meer tustettive © siaw of Ybser séW odw eno Yd bebidw”
iy ot aot nit yereqoty edt Jenixge esonerdmions edt ‘(18 TY0 tesifo °
: eat ton exsw yer asol dove twor ¢ bas yegeadrom Fert
i$ : a A RRL eg cee Soke ed Oe tk
—20=
position to pay the amount called for on the loan from
Harnstrom, and Harnstrom, as is apparent from this record,
came to/the position with regard to .his transaction which
he endeavored to estabiish in this case; and if Lill, who
had become the owner of the junior mortgages, was not dise
posed to be unfriendly to them and if in taking the action
he has taken in prosecuting this foreclosure suit, Lill
was thereby disposed to not only protect his own interests,
as such action unquestionably did, but also save the Paces
from an entire loss of their equity in the property and
make it possible for them, with the additional time thereby
resulting, to make a further effort to make such provision
for the payment of the amounts found due to Lill and Harne
strom under this decree, we are unable to see how any harm
is therevy done to any of the parties, nor, in our opinion,
may such a situation be reasonably said to be in any way
inconsistent with the proper conscience of 2 court of equity.
For the foregoing reasons, the decree of the
Superior Oourt is affirmed.
DECREE AFFIRWEDs
4 That
mO8—
moxt meol and so tot aeliao tavoas edd yaq ‘ot noltisog
roost widd sort #aerscqs af s8 ~mottetell bas wottedtsk
5 i pete a RIE, rts in
doide gottosanet? aid) of Braget dtiw aol#lecq oat \ee ‘sits
odw gilid Ii One 79eso aid’ ai datidatas of herovesbae ed
said tou aon ,eegsgitom toinui, edd te xomuo add emgoed bad
ie Lftd .tine eruscloers) eid? gaitugsaeang. ahs a EE
wieetssai owo eid tostorq ylac fon oF deseqadh NéoteAs BAW
ss ageed edit eves oats iud bib Uicen us, nokt04 tose am
bas ytteqety edt ai Ytinps tiedt to esol exttae as mort
Aga omit Lenottinds ods dttw meat cot 0f
ss toketverg dove stem ot ttle sedtaut eal nid. Lanes
Cae OD ae
mrad wis wod 99e ot eidenyu ets ew ‘sor00b ‘abide’. Yebau motte
- ytolalqo ‘uo at <ton <2oit tag ‘edt te yas ‘ot enol , Worems et
oaeavne to ¢<uoo s to sonsioanos reqerq edt “dtiw te
t mle stew weap .
CARAT TE wmoae 8 Sate Set et etenlt
Lede asis belies over.
gRob 3 ee et ae ei Be mada
yk f Pesckl Uke: ees ne bay one wd Sabriaa :
rit Sagi be ae as ay tee Lee @' ‘ewote
2 soigos sd} guided ai ti dae yuadd ot Uhseitiay af ot, beng
~aTeli bes Ifti o¢ eub bevet atavgome edt to snemyaq ode rot
yam yan. at ed of bise videnceast ‘ed’ wold aud Ke’ a Asem |
edt To esrosh oat sBOR8ST wneeihat: Tot, Pee | :
bomnEhts, at #uud. coltege
ae «¥en, tie ote wegnab.,
Paes seth: chee ey tea ng agi cet Peete: .
. ™ H Aes eh eats
ea 2h somo Oa soavie ‘
Dekaabe oaw i a
iy:
“
~
wy
that she later paid him $20.00 of that amount;
47 — 31164
PEOPLE OF THE STATE OF ILLINOIS, )
Defendant in Error,
ERROR TO
Vv
di CRIMINAL COURT,
HELEN JANKOWSKI, COOK COUNTY.
Plaintiff in BELO 5 ES aa re A
kod oe D eb
Gpinioa filed March 32, 1937.
MRe JUSTICE THOMSON delivered the opinion of
the court,
The defendant, Helen Jankowski, was indicted for
mayhem, There were two counts in the indictment, one
charging her with assault with intent to commit mayhem,
and the other charging her vith dovkeeying the eye sight
of one Joseph Krysinski with malicious intent to maim or
disfigure him. The jury found the defendant guilty and
fixed her punishment at one year in the County Jail and
a fine of $1,000.00. Judgment having been entered on that
verdict, the defendant has sued out this writ of error,
The defendant contends that the evidence failed
to establish her guilt, beyond all reasonable doubt, The
record shows that the defendant had been running 4 small
candy store. The complaining witness Joseph Krysinski,
was apparently in the candy business, selling to stores, and
he had been selling candy to the defendant for some time,
The testimony introduced by the prosecution tends to show that
the defendant sold her store to # woman named Antonia Drogdik
and that at that time she owed Krysinski @ balance of $36,75;
that at one
Papuley beLIs = TS
<STOMLIGE TO" ra? aRT "0 aivons
torre mi tiebine ted” 2 ea ree a
gy eg
Ne OT sCnAa
SOO LAMTMLAO | 7
Os <p YPRUOO - 3009 5 gegen | oiavomay’ “waa
| : 4 ,TOTeR ot basal gt sae daseg
PED ALL BAGG «0 ccermnms 5 ced
‘a3 TROL q® S62ae Dalit aeinigy °° i» Coon at : as fa bs |
aa to aoinigo sit bexrevited womoat ‘worraut ait GOT Be
: ik ah a rere edt
Sik neee th, tings
oe rot Sedoibai saw _dlenqdaal aveiok.. Aeneas. 9, was inom.
ero ,tnemtoibat ed¢ at. atasoo ort ers. ozs ; moda
gusdyan dimoo of tastai stiw tinsmes, Abie. re anigrado
tigta oye ct gatyouteeh dtiw ced gatgrads zedge. 8 oat be
to mism of dastal avoietfen atiw ttenteyta, dyea0h emo to
bas veliog tashesteab. adt Savor VtwG. ody _otttd ds ) 3 stot
bas fis ytnved od¢ at they eno ta © ssoaitetaan rod bextt
ted? a0 borotas weed yaivad taemmg 00 000,18 to eait «
a , in a
te +
~ en
sto1re to tiiw eidd tuo beue ont Panos goatee
ah
beliet sonsbive edt tadt abstetnoo tachbasteb ont
Sat ztdeob sidencesst {fs biroyed neon ted det
a bas <eetove of gaiilee .seesiaud ybaso odd mt vioneraqas ean
s@mlt soe Toe dasbasteh orld oF voaee aniliee ased bad ed
wus!
time she went t ck to her store and asked Mrs. Drozdik
if she was still buying candy from Krysinski, and finding
that she was, the defendant asked her to tell him to come
over to her house and get the balance she owed him = writ-
ing her address on a card and leaving it with Mrs. Drogdik
for the latter to give to Krysinski, The state's evidence
tends further to show that Krysinski went to her house
several times in August, 1925, to get his moneyy but the
defendant claimed she was unable to pay it and asked him
to come later, The evidence further is to the effect that
one Saturday afternoon in September, 1925, Krysinski was out
in a new automobile truck he had bought, receiving instructions
on the driving of it from a chauffeur in the employ of the
truck company who had sokd him the truck, and they passed
the defendant on the street, and at her signal stopped, and
she and Krysinski had some conversation, in which she asked
him to come over to the house and she would pay him the money,
and it was arranged that he come over the following afternoon,
which was Sunday, September 27, Krysinski testified that he
went to the defendant's home at that time and knocked on the
door; that the door was opened a few inches and he saw the
defendant standing inside, but the door was not opened fully,
but closed again and locked; and that after a few minutes
it was again opened, and suddenly some liquid was thrown over
his head and face, which blinded him; that heturned and left,
making his way to a place about a block away, where there was
some water, where he tried to wash his eyes and face; that
he was unable to see anything clearly, saying that objects
looked as though he were looking through tissue paper, He
then testified that he went home; was cared for by several
doctors, without success, and then was an inmate of a hospital
‘mos
b55L6 ~ Te
Zibsorwd .evM Hewes bas stote sed of io ad tnow oda omit
geifiait bee ,fodiaentayra mort ybasco gaiyud Litte ese ede 7%
amos ot mid ilet of ted bodes tnebmeteb odd tee ode tadt.
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dibsorw .erh mie ti gitveaet bas bis s£ a0 esetbhs 304 Bat
sonshive aletsie scT .iteniayta of svig of ‘metsal ‘eit ‘rot
eavod ted ot tase bienteya tent wode ot tedéaut abast
edt dud ,yemom eid teg of .S88l .tenguA al somlt istevee
mid betes bas ti yeq@ootieidany ssw side bemt slo tasbasteb
tad foette ont of ef sedtewt sonehive ed? .x6tsl emoo of
tuo aew ideniteyth .SS€L .radmetce ai aoomres ts yabust ab ‘eno
eneljortieat gaivisosr ,idgued bad ed dost elidomotus wen 6 at
sat to yolqm=s edt ai tweTiwedo a sort tk to gaivizb pat, 0
beeesq yedt bas .douxt ect mid bLioe bad one Taegu douss
bas ,beqqote Ismgia ted ta bas .teottea sit ao taabastsh edt
boxes ode doidw of ,soltsetevaco emoe bed identeysy bas ede
e¥Snom edt mid yeq blvow eda baa caved onF ot TSVO. emoo. ot mid
etoontstts gaiwolfot edd revo emco ad stadt. begusris ecw tt bas
od tadt beltitest taenteyry «TS todwatqed. s¥ebave esw. dotdw
efit mo bexoont fae emit ted? oa amend. a'tasbasteh edt of tue
eit wse ed ban asdoni wet s beneqo new TOOb odd tedt ¢roob
eViivt Semeqo tom asw tooh edt tua .ebteal aatbote tnsbaoted
if URES OF
estuntm wet e rette ted? bate thewoor bas alse heselo tod
le Geol bY Ps
TeVe awotdt easw biluoil smoe Vine bbire bas bemoqo aiegs asw et
ettel bas bearuted tedt aid bebrite do tw <soat bas heed id
eaw ered? store tems toold & tuads eaig & oe yew ald gatien
tedt jeoet bas asys ats dsow ot heits od oie qxetew i pak
atoetdo tadt gatyaa issele galdt yao oan ot le. big dans caw os et
2 oi _ T8qaq swaatt dgvordi gatioot etew od dguods as bexool
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for seven weeks, without improving, after which he went
to a Dr. Kraft, This latter doctor testified that Krysinski
was totally blind and always would be, and that the condition
of the eyes as he found them was caused by some caustic or
acid. Krysinski was corroborated by the testimony of the
chauffeur, who was teaching him to drive his new truck, and
of Mrs, Drozdik, who bought the store from the defendant,
Krysinski was asked whether he had ever had sexual intere
course with the defendant and he said that he neverhad, He
further stated that at the time the acid was thrown, he was
not inside the defendant's house, The police officer who
arrested the defendant testified that he talked with her at
the station and she admitted she had thrown liquid of some
kind on Krysinski, and in explanation of this she told him
that after Krysinski had been coming to her store for some
months, selling candy, he came back into the rear of the store
with her and had intercourse with her, and that this had occurr-
edat different times up to the time she sold the store,
over a period of four months, after which he visited her at
her home and they had intercourse there, up to within about
four months before the incident involved in this prosecution,
She said that her husband had found out about it and questioned
her and at first she would not tell about it, and then he had
learned something of it through their eldest child, after
which he had again confronted her, and she then told him the
truth about it, whereupon her husband told her to get outs
The officer further testified that the defendant told him
that when Krysinski came to her house on the afternoon of
September 27, he knocked on the door and when she answeredy
“he rashed in and struck me;" that she then acreamed and ran
to the kitchen and took "a bottle of some stuff I think what
my husband used to clean or flush the basins in the toilets,"
eile
tnew ed doidw totte ~gaivorqmi teodtiv ,adeew nevee rot
identayti tadt beltitast cotooh restsl aid? Sterx a s ‘ot
noi#ibacs odf tats bus .od biuow eyewls bas bakid Uinayet | aaw
40 ottauso omoe yd beaeo ssw medt bast ad ee Beye” eit? to
sit to ynomitest edt yd betsrodoTzes esw tented ‘Bite
bee ,dourd wan sid svizb ot mid gathoser aoe odw ‘guie? Yiflto
wtasbasteh sft mort erote adit diguod odw citpeorg’ jam to
wtetal Iauxse bed teve bed ed sodtede betas ‘asw identays
eH .bedreven od tedt biee of bas tashasteh od? dtiw esto
we od .awordt caw Blog oat omit oot #e tend heseve reltfryt
odw trooitto solfog os? ,eavol eltasbneteb edd obramt ‘ton
ts ted dtiw bedlat od tat beitideed tabi tes edd betsotts
Soe to biopit awordt bat ede bottinbds ode bus noftete ‘ont
aid blot ede etd? to mottensiqxe mi bas .ttenteyta no bats
smoe rot etede ted ot gnimoo need bad Ldeateyre testa dads
erode eft to rset edt ofmi aped sma anf ~ybast: gatifee ‘ga sttilon
“-Tqy00d hed widt fect bas pred din setwourstal Ded bas weH “ddtw
estote ant bloe ede emit sft oF qu aomid Ynetoliib tasbe
te tod Setieiv ed doirw tetts ,edtaom rwok to botreq B ‘xevo
tyods sidsiw ot qu ,sted? eatwoosedal hed yodt bas emed) wed —
_ ~«- eftotdsosaorg eidtd ai bevlovai tacbiont edt axoted, adtnom muet
a baxaieeaep bas ti tuods tvo bavot bad baadeud red stadt biss. on8
bad ed godt bas .ti duods List ton bivow ede tatlt ¢s boa xed
"etis ebitds techie tisit dguondt tt to galdeomoa, beazael
_ ect mid blot ast ela bas xed betnoriaeo ategs bed ed doide
«two tag o¢ red blot basdesd tod moquscedm nt. tuods. stent
mid blot tashasteb sit ted? heititess tedtuut teoltio edt
, Xe aeoatatis ext ao eavod ted ot enso. fianteyes godw tect
an ve ne
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which she threw at him; that he ran out through the front
door and she threw the bottel a him, whereupon she ran out
into the backyard screaming and the neighbors called the
police, The officer said he saw some white stains around
the front door; that he examined the floors and carpets
in the house but did not see anything unusual about them,
fhe defeniant lived in a first floor flat and her
younger sister and husband lived on the second floor, The
two latter testified that they heard her scream for help
on the afternoon in question and that the screams came from
the direction of the kitchen. A next door neighbor testi-
fied that she had seen Krysinski the week before, on Satur=-
day evening talking with the defendant, apvarently near the
house, for about 15 minutes, when she came in and he walked up
and down apparently waiting for her, but she did not come out.
She further testified that she had seen Krysinski about there
a number of times before on a truck which he would leave
standing nearby in front of a grocery store, "and he would
be gome fully three quarters of an hour over to her place,"
The defendant testified that she never owed
Krysinski anything; that after he had been sellimg her candy
at the store for a short time, he began his attempts to be
intimate with her and that on one occasion at the store, he
followed her out in the kitchen, where she had gone to get some
money to pay him for the candy he was delivering, and there
he approached her and overcame her resistance and had inter=-
course with her; that she told him she would have him arrested
and he told her if she did anything like that or told anyone abou
it, he would kill her and also kill himself. She also testi-
fied that on another occasion he had intercourse with her at her
ohn
fnort add dgvotdt tuo ast od saat ual d ts wont onie doidw
#uo ast ede soquvercedw ,mid de fetiod oat wozdt ota bas ‘rood
oat belieo etoddgien edt bas gitinseroe brsydoad cd oon
bavots anisie otinw smoe wse od Sise xsoltte odt gees ion
efeqrso bas etoclt edt benimsxe ed tad? j00b ‘tort ‘out
¥ ha:
sont tyuode Laveuch ep dakd eee ton on. sud oeven eit -
Libres” ont te
red Oo8 te{t roolt terit s nf bevtl taavaeteb eaF ivan torre
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ated rot mesxoe tod breed’ yodd watt: pettitest wedtal owt
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=ttest todigion to0oh txsn A .metotia edt Yo softoerii ous
“titet m0 ,2Totsd Asew ont tventeyrxd nese bat ede Fatd bert
ad¢ Teea yitmetecqs .tashoeteb edd ddiw gabiled galaeve ‘Yeb
ae boiler od bus ai emso ode nedw (gedemin Of fudds “dT dened
| B10 emoo ton fih eda tud .rad Tot eaittew yltaetacqa mrod ‘bits
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evesl bivow od sotdw doutt @ ao sroted sbald to dedmuit’s
bluow od bas" ,etota yrscorg & to $aort at ydrsen yatbaste
",s0alq ted ot revo trod os to ranged ott Biyiivncie Beg
Ong RR %
bewo teven sda tedd s:ihiidadigmeatats oat Rha. oa
‘ybsiwo ted grilles ased bed of <odte tect ggeidtyas, idemieysd
sd ot etqmetis etd aeged of ,owtt trode # toh erote. edt. ts
et pexote sd te notasoso ono Ho" Tadd a8 ted dtiw otamtéat |
Smee Yep oF emog bat ode sxerw ,aedotEA odd mt tuo nod bewolfot
etedd bar ~enitoviteh esw anf Yhaso odt tot mid vag od yonom
teint bed bas *eastateet ret smzotev6 bas ted bedesorqqs of i
| betesrzs mid sved bloow sae mid blot eda texts “qed dibe geqsoo
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home, he testified that on September 20, the Sunday
before the incident involved here, Krysinski was out in
front of the house walking up and down, and her husband
asked her what he was doing there and she said he had better
ask Krysinski, She said Krysinski had often suggested
that she poison her husband, saying that he would poigon”
hie wife and then they could be married, and that she said
she hed her children, and he said, “my people and his people
is going to care for my children and his children,and I
said no," It apoears from the record that at the time the
defendant was testifying, in March, 1926, her husband had
procured a divorce from her = as the defendant put it =
"He say Krysinski is my sweetheart, now I lose my home
and my children," The defendant had four children, She
said three of them were her husband's, She was asked who the
father of the youngest one was and objection to that question
was sustained.
On cross-examination she denied ever seeing
Krysinski with the truck driver, She also denied ever asking
him to come over to her house for his money, saying she never
owed him any money. In rebuttal Krysinski took the stand and
denied the testimony of the defendant to the effect that
he had suggested he would poison his wife and she should
poison her husband and then they could live together,
It would seem to be apparent that neither of the
principals involved in this case told the truth, No reason~
able person would believe that Krysinski went to the defend=
ant'gs house merely to c@lect the balance of $16,00, without
ever having had any trouble with her, either concerning that
small debt or anything else, and that practically out of a
a *
Me yabage ort OR todmetaqee® 0 tadt paitivest ade ‘ing
Seu? <“
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ty ee
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bise ote tadt bas ,beit1sm ed biveo yedd aadd Bae etéw eid
elqosg aid bas efqoeg ym" .biee od dae ymorbi ide red bedvode
| 1° dae, Aeibiide eid hae ssthiido ys zet omso of grioguel
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bad basdewd red ,8881 ,doteM ai egniytitees saw dasbaskeb
cra i duq tnsbaeteh edt as ~ ted mexk sotevlh 8 hetporg
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- ed2 ,serblido qwol bad saebnsteb ad? “enerbhLits yebes
seri odw beales ecw od8 .etbasdeet tod oxew, madd te conde bhew
Meivesup tadt of soitootjdo bas ssw ono Pesgavoy » odd To tedtat
. sbeat stain asw
duses yar thaiate
gaisos reve holtmeb ade nottantnexe-aacto re ee
gaidtes teve beissh cals off wrovich dows edt dt iw tdgatayrk
@ roven ode gaiyse .yomom sid tet sexod ned of teveremen of and
; has Soste edt soot ivanteyrd Ledtester ml) «¥ouom yar wid bewo
tad? toette sdt ot tashasten edt te ynomisnsd elt betasb
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eterteget svil biueo yedd. sedt. pre, banana he AON
ses Oat ORFS
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PR pHtiteoie: 46kdbs ned dstw eo
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clear sky she would throw this strong liquid into his face,
The defendant showed by her own testimony that she appreciated
that whatever this liquid was it was very powerful, because
she described that her husband used it with a sort of swab
made out of a bunch of cloth would around a stick,
On the other hand, we see no reason to doubt the
testimony of the chauffeur and Mrs. Drozgdik, in spite of the
defendant's contradictions of their testimony. From all the
evidence in the record, we are inclined to believe that
Krysinski had been unduly intimate with the defendant. By
her om admission, as shown tn this record, her husband had
procured a divorce from her on that ground, naming Krysinski
as a co“respondent, and in that case he had procured the
custody of their three children. In his closing argument
counsel for the State reasoned to the jury that even if the
story told by the defendant, about her intimaoy with Krysinaky
were true, still she had not related a situation justifying
her admitted act of throwing this substance into Kyysinsky's
face and blinding him, The jury apparently took that view
of the situation, and we are not in a position to say that
they were not justified in doing so. While, as already stated,
we do not believe thet either of these parties told the whole
truth, we have reached the conclusion, after a very careful
consideration of all the evidence, that we cannot say the
jury were not justified in finding the defendant guilty
beyond all reasonable doubte
The only other contention urged by the defendant
in this court is that the prosecuting attorney made sud
& prejudicial and inflammatory argument to the jury as to
~3~
~oost sid otai btupilI gaotte eaidé words Slvow ede yle reefo
| betaiostqgs ode tadt quonttest awo ted yd bewoda tashasteb. edt
: geyrosd ,iutrewog yrev esw ti aaw Sisptt elds revetsdy tedt
dawa to #10n s cdiw tt bees basdewd ted tad? beditoeeb ede
eslottea s bavots biwow dtolo to ae a +e: one ks
i
ait tduvch of nogset om soe ew , based todio ed¢ x0 ° ade Suc
edt to o¢iga ai itbeomd .ex bae wwobtwado edt ‘to yaomt test
act {fs mort .yacmttest riedi to eneitethertacs @ttaabnsteb
dent svetied o¢ bantion: sis ow qbreser ext at wonsbive
yi .«taehasted edd dtiw stamttai ylubow ased bed Indenfeyra
bad baadasd tend ,bhteooet sini alt swede Be no teeimba ano rent
identeyxd gaiman .dauotg tadé co tod aoct ean 8 heereae
ses
tmemugis yateofo etd ml .werb iid eecds atods to hos an
edt Zi rove tedd yrut edt ot Bendeecr Stare oft TOY “Bedi
fotinteX dtta yosmtini rsd tucda .thanweted eas vw blot rove
Neubieeh fea} noitestin 8 betalet toa bed ede I£tF6" evade oven
atydenteyyi otai soastedue etdt saiwor dt to tos bodtimbs ted
wetv tsdt doot yltne tsqas veg ont abd ‘galbaitd bas soe?
tedt yse of noistieoq s ai tom ets ow bas _ sottaut ts edt te
betsie ybsetis es .ofinW .o8 galob at botsveut Bae Foy pk ae oT Seen
- afodw ant blot sstireq aeedt to rodtto tadt fretted 08, bo Bd
fstarso yIev 8 tetts ao Leu Lomo oils bedoser ask oF w oiturd
edt ySa tonnso ow teds .sonebive ods tis te “mottexsbt enn
viiteg tasbaeteh edt yribait ft bettitast tou stow vust
etdvob: be speraunsmnat se ere
fi aie te Phe e
“ ime Soren a aller d OMat
_ taabooter edt Ye Segue noltnstans resto xno. Vhcisie' is
: ’ eae ana Yoaros se galiuoveord oat. tedé (St dtu00, stat
eal Vert 9M ef tavawgns rene at Antes
edit bersoo1g bsd ed saso teat At bas |. te
has i
200 Rae Sw ks
~
interfere with her receiving a fair trial, wWe have
examined all of this argument, as it apvears in the record,
In one or two minor respects the prosecutor misquoted
the testimony but not to such an extent as to make this
& material matter, Most of the remarks indulged in by
him, to which objection was made, were statements which
were warranted by the evidence which had been submitted
by the prosecution, One or two statements he made were
very apparent exaggerations, but, on the whole, we are
unable to conclude that the argument was such as to warrant
this court in disturbing the finding of the jury, In
the course of his remarks he referred to the wife and
children of Krysinskis Hye wife was in court and at fhat
point in the argument she was apparently crying and making
such a disturbance that the court interrupted the argument
and had her removed from the room, saying that no such
demonstration would be permitted, We do not deem that
incident sufficiently serious to warrant a conclusion on
our part that the defendant's rights were unduly prejudiced,
The trial court acted promptly in the matter; he witnessed every-
thing that transpired and was apparently of the opinion that
it did not justify setting aside the verdict, There is
nothing im the record, relating t this incident, which
would warrant this court in overriding the judguent of the
trial court concerning ite
Another point is made in the brief involving
@ question of newly discovered evidence as a basis for a
new trial but no mention is made of this matter in the
argument presented and it will therefore be deemed to have
been waived,
yr
mt
Si
ay
—
RAM
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a2
a
Recent
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pes
oe
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eved oW ,fetit wist s gaiviesort red driw one tredat
brooet edt af erseiqs ff es .taemogte efdd te ffs bentmexe
pesoupatm rotusenorg eri Btoeqoor sonim owt xo’ emo al
aids een ot ae tnet¥e oe dose of tom Gad yxomitaad edt
vd of begivbat extemet edt To taol seetien fairetem 6
fotiw staemetsta otew .ohém saw soktnnl de do idw ot aid
bettindus assed hed doldw sonsbive edit ws betnertsn etSw
5 RS Ppa
erow ebem of etnometste owt 10 and sno itwoosorg — W
ets ew ,elodw edt no ,tud conto i aragyaxe taotsags 30
Be ee
taattsw ot es dove agw taemugts ant sadt abu Lo 200 ot ‘oldsms
at Leni eyes
ni «xx; ody to gatbatt ont gaidewteib ak fume eid
Sp AR
bas stiw edt ot betratet of extanor atd to oerueo of
ee
Fant ts bas tryoo al asw stiv ath tdsatayrd Xo mexbitdo :
gnidem Sas gaiyre Vitastsqgs asw ods _tasawgte oat ad Rees
taemugse sdt betgquristal tudo ont test eonsdrut ath “i yell
dove on tadt gaitss LOOX outs mort “evoser tod boi bas
Sie exe ra
teat mesh ten oh 9 ete teee ad biuow “no ttertesomel
mo soleuvlonco 8 tasrisw ot auo tree vitaetolwe sasbiont
; hott iene ts
+beotbuferq ylubau etew etdgit atinsbaoteb edt tade s18q 120
mrt: eae
Weve beeeentinv of gretism oft wi etqnora hetos “tre fsitt omt
tedt moinigo edt to yltnetaqgs asw bes horiqaasrs tadt gat dt
‘ee baring
ei stedT ,tolbrev sit ebies gaitten viivest ton bib ei
SUS RS Be
foide ,tasbioni efdt of gattaler dorover oalt a onsen
GO . ae eTy
edt to tmemgbut sdt patbirreve at true ete P tare nes b Lssow
oth autmreoaoo fawoo , Taine
: ow. exare
gaivioval teicd edd ni sbam #f tatog wertond» bnoyed
. & tok siasd & es soasbive betevooats h piehael to motteeup &
sdf af retdem aids to sbsm at sottaem on tod fsict wou
ride Mh Be sah Nilite fe
syed ot bewesh od exoterods fiw tt bas me ogee a
1 RA NER Seeiletie, ARR SAR. le te BS diol ake 8 e
=—B-
For the reasons we have given, the judgment of
the Criminal Court is affirmed,
JUDGMENT AFFIRMED.
TAYLOR, PeJ. AND O'CONNOR, J. CONOUR,
= sales
\ -
8
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eh
75 - 31199
SARAH R. WILDE and ESTHER CG. RALPH,
individually and as assignees of
MARGARET A. ALLEN,
Appellants, APPEAL FROM
¥; MUNICIPAL COURT
OF CHICAGO,
THEARLE DUFFIELD FIRE WORKS DISPLAY
COMPANY,
Appellee. A Af A =
a ee 1 OD =
Opinion filed March 3, 1927.
MR. JUSTICE THOMSON delivered the opinion of
the courte
By this appeal the plaintiffs seek to reverse
an order entered in the Municipal Court of Chicago, vacating
a default and judgment which they had previously procured
against the defendant, in the owe of $12,000,
The plaintiffs brought their action of the firat
class against the defendant in the Municipal Court of
Chicago, and summons was duly issued and served on the
defendant, according to the pailiff's return, by leaving
® copy with "John Doe, egent, who refused to give his true
name, * * * and at the same time informing him of the con-
tents thereof." The defendant failed to appear in response
to the summons, and judgment by default was entered in fave
of the plaintiffs on January 19, 1926, Within 30 days there-
after, on February 13, 1926, counsel for the defendant filed
& special appearance "for the purpose of quashing the summons,"
and moved the court "to vacate default and judgment and to
quash return of summons," This motion was duly entered and
continued to March 5, 1926, and on that date further continued
CGLle - Bf
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Bubs.
bas hoot Yuh eRY woLton BLE Msanoun—e to atuter deaup
Priesaies todtuvt stab tadt a0. ban BSC A Moxey of | * he Renae
( ida .0, sana rh rqy e masae
men
to March 19, 1926,
When the cause again came before the caurt on the
date last referred to, counsel for the defendant appeared
and asked leave to file a petition under section 31 of the
Municipal Court Act. Counsel for plaintiffs then called
the court's attention to the motion to vacate, which had
previously been made and was still pending, Gounsel for
the defendant then suggested that he was not estopped from
presenting a petition under section 21, merely because the
prior motion had previously been made, and in this conneo-
tion counsel stated to the court, that "that motion may be
denied or granted or anything that Your fonor sees fit to do,
in your sound discretion, But, nevertheless I am here with
a petition,® which he then proceeded to urge upon the atten
tion of the court, The record shows that on this day the
cause came on for hearing upon the defendant's motion there=
tofore entered, which motion the court overruled, Next, the
record shows that the court granted the defendant leave to
file its petition under section 21, to vacate the default
and judgment, and upon consideration of said petition the
court sustained it and vacated the default and judgment of
January 19, 1926, and directed that the defendant file an
affidavit of merits within 10 days. From the latter order
the plaintiffs have perfected this appeal.
On December 27, 1926, the defendant submitted
its motiog to dismiss the appeal on the ground that the order
appealed from was not a final order, and therefore, not
appealable, An order vacating & judgnent on a motion made
within the term or within 30 days after the entering of the
judgment, where the cause is in the Municipal Court of Chicago,
=
ali cls foxeM et
wie > 3
LOSER timed
ny
edi mo tue odd eroted omao pring easiao ate mocta’ bi ml
horasqge siabasheh odd TOE Losinveo ,o¢ boxxe tex teat eteb
ott ‘to 1k aoktoae cahau aottiteq « allt o¢ ovagl bedaa bas
helian sede ettitataiq verk tonnes e#8& Fr9O fagio Lasu
bed doidw ,steosv et aoiton eff oF ott mst te etex me ‘pitt
xeot feenvedD .gaibmeq [fide eeu bas oham aoed Wanolverg
gut beggetes ton caw ad sade Detemggirs mach tasbaret oh wut
si? eeuweod werex . £8 dotese tohaw mle ideq 8 gattaoeerg
~gemroo aidd nt bre .ebsn gaad ‘qlavotvera bad’ no tt om siwiond
od Yen mottos adi" tadt .tiueo ot of berate feemuoo ‘molt
206 Of FIT e998 Tonal mwOY dane gasdtyas x9 bedaaty 20 helaes
itiw ated os f sselodttewen .twe etottoroekh, awoe, 10% ak
anette ant moguiven ty ot bebasoong sedt ed doidw ",soldtteq &
odt Yad elds no tedd avoda Dudoes sdf «txun odt to. mott
~oreds nottom eltambasteb edt mogu gaitned <Ok AO Sup sarso
adt .txow beluereve Huoe adh notton do bebe sboretas exotot
ot eveel tnabsoteh ott betanry txs09 ast jects awode brooer
tiveteh edt eateoav ot AS ‘nobtees tebaw nottiteg ath ‘eitt
a. RS
and nobtited Biante noltersb tence moqs bas : 3.03.
Yo fnomgbot bus tiveleb set betacay has tt bestotaue “yuu0o
er sg RE NAY
Me Slit toshaster ow tect batoes to fmt s280L 4e |
si ide
te we
* Unie
webro todtel ode mort <oyed OL etd bw eg trem to thea atte
cre Deas
Lawes abit boteatreq ovad eYittatete oat
Pa Got a Bg
Hottindor taghagien edt ~8eL QS xedmeoed MO 0 gaat te
sapre 949 Yedh bawory ods so Laoqqe odd eatmmth of foltou ath
toa ,erotere ct fog pease Laat? 6 ton gam nor? be iacggs
Mien gotten 2 co Seonghap oe: ‘Bais soov TSTS BA af,
ede To ystnorne ect tothe eysb. OB middie To mxet et unseey
amie te tasod Ieqiotauy odd iad ated na liao stampa
be
is not final and is therefore not appealable, But an order
vacating ® judgment after the term or after the expiration
of 30 days from the date of the judgment in the Municipal
Court of Chicago, on motion made under section 89 of the
Practice Act, or Section 21 of the Mynicipal Court Act, is
final and so appealable, A. L. Glark & Go, Vs. Gharles Levy Co.,
19 Til. Appe 656; Gellay v. Mathis, 195 Ill. App. 170;
Doyle _v. Fallows, 207 Iil. App. 5; Gramer v. Ij1. Commercial
Men's Association, 260 I11. 516, The petition filed by the
defendant in the case at bar is designated by munsel as @
petition filed under the provisions of section 21 of the
Municipal Court Act, as is apparent from the petition itself,
wherein the petitioner "prays, under the equity powers of this
court, conferred by law, that the judgment by default be vacated
and set aside,® The motion to dismiss the appeal was reversed
to the hearing and is now denied, for the reasons above stated,
In our opinion, the trial court erred in entering
the order appealed from, vacating the default and judgment
pursuant to the petition filed by the defendant under section
21. As this court had occasion to point out in Langner v.
Keeshin, 223 I11. App. 642, and prior thereto in Flora v,
Fields, 156 Ill. App. 341, "it is only where the defendant
has made no motion to vacate, set aside or modify a judgment
within 30 days after the entry of such judgment, that the
Municipal Court has jurisdiction to entertain a petition alleg-
ing grounds for vacating the judgment, which would be suffi-
cient to cause the same to be vacated by a bill in equity,"
which is the relief sought by the petition filed by the defend-
ant in the cage at bar, Section 21, of the Municipal Court
Act, Cahill'g I1l. Stat, 1925, ch. 37, par. 409, distinctly
bce a
tabro oo tui .oldeteadgqe tom erotoredt af Sat iagth toa at
eoltertaxs odt retie vo meet edt tedte toomgbyt & gattaoay
Lagtotnbé edt ui deemebot odd to edb off wOrt eyed 08 Yo
ont to G2 noitoes cobs shaw a6ttod mo ,ogaoido 26 #xu00
at pfok drved: ‘lant od to £8 aeitee® vo Goa eo ldoert
02 yved gots 200 av 09 gy frat ad od | sbicataogge os fné tant?
sOCL sogk SIri #1 ,otdtaw ov yattep 888 oak tit ere
inkotentnd itt “¥ Zomayo 12 sqwe~. EPR 962 .ewols i iv at
ade vf bat tt no ttited ad} 8 aise Ook , A ite :
s ak Iden on yt beteng teob et 5.0 tn 9ERe ‘edt ak Giles teh
ad %o LS noitooe te anotetvora elt rebar betit ‘gottited
«iiseatt nolaiteg end mort tneteqge si ae «toa omer ‘teqte Leute
aide te atewog inne oft raben .eyvere® remo tditeq “ont ‘dhexdie
ane Se a
hotesey sd tly ston vd tnocmg bat odd haskt eal w berrotnes ‘gits00
boutever Bem Leases end eetes tb ot so ttem ott q ‘enioa ‘toe Bes
hot ate aved's encase ost “not be task won et t bas antrsod idl
BUND, SwRLE
gatrotne ai borre uses Laist off ,soiaiqo, tao, ak. She
Jaonyhet bos tiveter ett ymitoosy mont, bokaneads neti sade
foigess eshauv tasiacteb ad? yd belit soi¢staq, odd) of tmaspurg
oW Meteor) af duc teieg of aotmanoe baat ta09, aide A 4f8
oV 27005 ai ofersdt colsq fae . BO .qga: + HE, B88, ,atdeoex
tasineted ott exec yloo at 22" 188 sad Akl, 88, pabloye
tnesgbet, 2 Vilbos to ablas Joe ,etapar, od Hok¢om om aban ead
edt tadd tmemybist, dou. the vatew est tet he eye OF, aidit.tw
-gelie ante siee 2 sistrotne ot ironic aad vg {oe to bai
~ihiwa od bivoe to ke <fnomabet ort nalsaoav a abavory gat
"eubhupe at Eke 2 we benes.ey ‘ed of ‘oman oat cau ia
~buten ods we bers nottttog ent we tives sttex edt ab folie
wep oqo tani! one to * nohtess aad ‘ta sie ‘a a as
5 4A ABs Sues y yey q i
| itomts at <e0e tea ~ wo “saeee tate . et |
wy Gt ak ea tet dalyar,,
CBR ata
codes
says that a judgment of the Municipal Court may only we
vacated in that court after the expiration of 30 days, by a
petition setting forth grounds for vacating, which would be
sufficient to cause the same to be so vacated by a bill in
equity "if no motion te vacate, set aside or modify any such
judgment order or decree shall be entered within 30 days
after the entry of such judgment, order or decree." The
record in the case at bar shows that within 30 days after
the entering of the judgnent in favor of the plaintiffs, the
defendant did come into coumt and "move the court te vacate
default and judgment and to quash return of sugmons." The
defendant, having done that, was obliged to secure what relief
it might from the judgment which had been entered against it,
through such motion, and was not in a position, after expirae
tion of the 30 day period, to abandon thet motion or suffer it to
be denied and then seek relief under section 21. Ag intimated
by this court in Gallay Vv. Mathis, supra, sum a petition as
the one involved here, being in the nature of a bill in equity,
must show not only a meritorious defense and that the entering |
of the judgment against which the relief is sought, was without
the fault or negligence of the defendant, but it must also
set up such facts as will show why the motion to vacate was
not made withig the period of 30 days, provided by the statute,
and that the failure of the defendant to make such a motion
within that period, and secure the relief sought in that way,
was not due to his negligence, fhis is in accord with the
general theory of equity jurisdiction, which requires one
seeking relief in a court of equity to show, as a condition
presedent to his right to such relief, that he does not have
an adequate remedy at law, Where the statute expressly gives
aslo
od vino yee tam) feqiolew oft To dupmgbul: «, tede, oye
SU ayeh Cf to noltaciqze odd sedis duyon tedd a1 bedsoav
ed hinow soidw ,galtcosy tol ebavotg drot gakiteoa ao iptieq
at Ifid 2 ¥0 beteoav os ec ot emma edt ceuxo ot taototitue
tow yos Ybtoom so shige tee ,otcosy ot sottom on 32". yt iupe
eye O8 widtiw beredme ed Liads spteeb to. sabre, tromgbart
edt ",9ot0eb to sohto .daemghyt dome to yttae edt tebts
tetis eyab 08 aldtiw tact ewoda tad ta aeno edd ah brooe
ent ,vttivaisiq edt Io rovet mi duemgbe, edt to gutietae ect
ateosv oF tums adt avon" bas tuuco odai omen bLd tushaeteb
adi “,anomure te outer deaup of bos tamghul baa, ssiuuia
teifer veade erecoe od hogiide acer , tect sooh paivad Sf
a¢i tedtiaga batetne need Sed doidw doommbyt edt sort easbaiane
~srigxe retts ,noitieeq # at toa saw bre yrottem dove dguondé
ati wstics to sottom tad? mobgeda ot ,boiveq yeh 08 e@ to sott
betsaitmi e448 acitesor «sbaw Yeifer dees sedt bas beoimed od
an nohetend 8 bye .erqwe ,aidd a «v yet isp ai tumoo ald? yd
i iupe at tik s ko grant sat odd mi gated ered beviownt eno ‘edt
1
gakretas 9 it tld bas ans Tob motnotisen 8 elo ‘tom wode ¢
tuodsiw dasa «tiigus0e at tes Leer oat dp Seber tenlage Sonsgbut, “odd %
cele teum vi tod sfushos Yop 9 at to coms Afgea 0 ‘tus? ods
ase eteoey of med sow ade yale work fk bw Bm ‘atost Mowe au #08
eotutate sie va bebivora ri os te boieg ‘ont ght iw ibaa ‘toa
woken r) dose oda of tasbaeted ode to orm List oat “pads "Sas
yar tat ad 3 yor c@ Yet ler ent emsrose bas “qbotteg. tat mist w
ads dé tm brave at al aldy oonog t igen aid of ‘eu 3 pty
ane sox iupen so sw snostotbe taut ‘yttupe to roads ‘[areneg
a m0 ttt bivoo sae enone ot Winpe to Proo # a2 tettes gations
., ovat tea ech od tate ‘ehod fer foe we ft ai oF om
Bee Sale 4 ‘sya
sory eeoraxe odutate ae em pros ‘ bogoh
sy le AS, hae bia “a
=o
the defendant an opportunity ef obtaining relief from a
judgment at law, by going inte that court within a specified
period, he may not neglect thet remedy or deliberately
choose not to avail himself of it, and after the period
has rumy appeal to the equity jurisdiction of the court
to git/tren te judgment entered against him at law, All
the reasons open to a defendant in support of a petition
in the nature of a bill in equity, seeking the vacation of
- @ judgment,more than 30 days after the judgment was entered,
are open to the defendant in support of a motion, made with—
in 30 days. These reasons support the provision of the statute
which gives the defendant a right te file his petition after
the expiration of the 30 day period, only wheres no motion to
vacate is made within the 30 dey period; and in all cases
where a petition is filed after a thirty day period has exe
pired, as above stated, it showld give satisfactory reasons
for the failure of the defendant to make a motion to vacate
within the 30 dey period, We have no occasion here to pass
upon the question of whether the trial court properly denied
the motion which the defendant submitted within the 30 days.
The defendant neither prayed for nor perfected an appeal
from that order.
For the reasons we have given, the order of the
trial court, vacating the defauat and judgment pursuant to
petition filed by the defendent under section 21, is reversed
and the cause is remanded to the Municipal Court of Chicago,
with directions to expunge the order of iiarch 19, 1926, sus=
taining said petition and vacating the default and judgment
of January 19, 1926, Langner v. Keeshin, supra; Price v. Warie,
207 Ill. App. 112, ORDER REVERSED AND GAUSE REMANDED.
TAYLOR, P.J. AND O'CONNOR, J. CONCURe
€ ue
& sort totter arialeide Yo yhimetnogge wa tanomstob’ ods
beltioegé & widdiw dues tans ont gated ye com! fe thomgdet
ylodexetiiied co ykeuet tard TOeLeer Jom yam ot boireq
) he breg ett cetiw bas Yr te Ream Lteve OF ten! sabi
yo) genoo eft te nottesbetent ef tube edgy oF fasqqs qattre Beit
[ik al te mtd tentegs boretns teoemgbst etd bozt Peg) Oe
moktitar s to trorqve mt tanbavtod @ of meeo eaoeset OMe
to aoitavay edt galdiser .qtinge at [iid 8 to sritan endo mt
ehoretce ase teonghyt oft cedte eye Cf ad? rom. tromghot '&
~ijiv obem .roitom 8 kee stouque nt ¢esbaeted one of mogo eee
otut ote add ho aghetvorg add tiodqun eabeser eoent . ayeh OF me
\onette sottiteq eit ef42 ot ddgin « tasbaeted etd sowtg do tile
.o¢ geitem on stetw yino yholtceq yYab 08: ed? te noltixtgxe edt
genes {fe xf bee qhobzoq Yab OB edd ltt be obaw at etanay
ane sadvbokrsq yah Woidt # tetas boli eb Goltiaeq Peteite
eronnet Yrotestetiee evig Aivede +4 betste sveda am gboute
retaose OF soltoms.ese ot tahas td odd To one htet bat c0t
i¢kw Ras
8 Bekg Ot 6tSs asteanto® or oral «® Solreq yap" os) ade :
beines yltacorg truco faitd sett todd ere Yovanecdenptede an
opeieh O8 off midtiw betdimdwa’ sd aabnoten edd de ite’ ieokton! olte
teeqqa as regetccas ton tot boyere todd lon teabasteb ort i
Cr il war FCP tebroodads west
: Ke Cee ae ebay Sa:
ade to rabno anit tovlg. svad ow amonsot aut ot
elt baw
o8 taser a ompbst bas #duetot edt giitao av etuues isiné
caer ae he be
beurevex wi off nostooe rebaw ‘taabneteb oat Wd ‘peli ao ithieg
Om ie ae ae
193.001 to toe faq to taunt ode ot bebsawer at savao add bas
ese Lewsey
were B80L er fo tsik to. ‘abo on eguuara o snokdootLb dgiw
‘tmomgbat bas tivaab edit galtsosr bas nObte 0g
us eae okt wea un ae
etiat v pst jerwa ‘horns 7 ‘4 * a
iP REC fon Pie Hee zoguad em Hag ty 9 Sa Wks Gt as as
Aan MAM RBVAD Ova ager avan FALULAO RE
aqh Lt |
eUOHOD ot <HOUKOD'O GHA .b,T "ROMA?
Rabson ee et
bise gataiad
61 ~ 31135
JABS A, BAOPRY,
Defendant in Error,
BRACK TO THR SUPERIOR couRT
Wa.
OF GOOK COUNTY.
BERTHA FLIGEH et al.,
Plaintiffs. in Srror.
eee Se See eel ee
K 2 A>
SAAT (
i kA belle ( 5 o> &
KR. PRESIDING JUSTICE MeSURELY
DELIVERED THE OPIDIOK OF THE CouRT.
Complainant by hie bill sewsht the reaoval of certain
‘imatruments as clouds upon hie title to eartein lote, the eurrender
of certain deeds to him, and permiseien te retain $30,000 paid by
defentant Bertha Feigen to him as exrneet money op account of her
alleged breach of contract fer the purchase of real oxtate,
‘Anevers were Tiled and the cause wae referred te » master in
“ghancery to take evidence and report conclusions. After hearing
“aviaence, he recommended that a decree be entered in accordance
with the petition of complainant's bill, Objectione and exceptions
Berets having been over-ruled, the chancellor entered a deeres ac-
@ordingly, which the defendants Bertha Feigen and Philip eigen by
8 writ of error seek te have reversed.
In December, 1923, complainant was the owner of 30a
in Cook county, ILlineis. Under date of Decenhber 27, 1923,
Me @itered into a contract with Bertha Feigen te 2011 her these
ote for $200,000. fhe paid $10,000 as earnest soney and agreed
© pay the further sum of $5,006 on or before February 1, 1924,
98,000 on or before Karch 1, 1924, and $10,000 on or before April
+ 1924, the balance of the purchase price of $70,000, to be seeured
y Rortgage on the premises. The conveyance to the purchaser was
» to all taxes and asseeswents levied after the year 1923 te
y unpaid ‘special taxes or special assessments for ixprovenente,
ce pe oe
THGOD: MOLT HAE OE AOA ie hoe ease et
EMIS BOW AE 6, fy, Reni
ek tone 7 *aThdaus ware fF oy,
i &: 0: @ Kh, fr . h eu Wig Pap ie iN men io of
ee ‘ ToT eOe wits care rate mee ve |
“BAD x — w wOnTG wee Seumivcaee k
Hee vant rn ee gS Pena pay: on
whetres Qe Lavewen ase Siigaom Liid nas et beara ea
‘gehsertie aHh yatet wietine at elede, ale woes. edvoto aa 8 pdmomrats
ed Bie 200, 028 phates of nolan beteg, foo .abs ot abens atebree
Ge GE as Ba
ted Te faupaga oo wea feeires Be ated os senate? faabastt
4 sttatee faot Vo ssuriotng ons tet ‘gonmdinda “Yo deenud doer
. th tndena a et berxetet som ‘veuaa oad baa’ ‘poitt’ tame exowe
atsans 9 maga anotay fa09 stoqne ‘baa Kesh wild “ot ¢ 69 .
e, soaabrooas as hore dus ed oew0h & sade’ be ie bit’ Gs
asks genre fsa ancl tonya Wait et tasabe fomoe te suite 4
“oa net. ry boredne toltenaeso ond Precraerstnt “ood 4
2504 «te wedusesd to atab xoebevw pron cin”
me ben Yeas taseras sl oie) ‘ibe potpo
BOL LE eedentoe ereted my. m9 800088. To, am, taMhaTy i
Ehrea wreted emo O00, O46) tow VPROL gh Sonat, enoted el
‘boeoe ad: ot ar oe lien wit oe ae £
and to unpaid inetalmente of special assesouents falling due after
January 1, 1924, levied for leprovenents completed, Gomplainant
wae te furuieh a merchantable title guaranty policy within «
Fespaable time, The contrast also provided that if material
defects wore found and reperted ond not cleared within eixty daye
after found, tho purchuser might, ot her option, upon notice given
to the vendor, declare the contract null ond veld and have the
@arnest money returned te her, or she might sleet to take the
property as it then wae and tompliainant wae to cenvey as agreed.
In default of her eleation to perform, the purchaser wae te be
deeme? te have abandomed any claim wner the pranisas and the cone
tract ae to ceane to be of any force and effent. It wae alee pre
vided that should the purchaser fall te perform the sentraet within
the time and in the manner specified, the $10,000 earnest money
should, st the option of the vendor, be retained by Bim as Liquie
Gated damages and the contract become mull and void, Time was
Geclarei to be of the easence of the contract and of all ita
conditions.
Subsequantly, sbout Jenuary 16, 1924, « supplemental
OF escrow agreement vas entered inte whieh medified somewhat the
Provisions of the original agreement in thie respect - it was
‘Provided that the $70,000 purchase money mortgsge should be
divides and placed om varioue anecified lote; also that the
“#5000 Payable on February let and “arch let respsetively, and the
| lena payable April 1, 1924, inetend of being made payable te
ainant, were to be deposited by the purchaser with the
Title & Truat Company in escrow, Complainant waa te
ite and place in encrew hia deeds of conveyance, which was
+ and the purchaser syreed to and 4id deposit $59,756
money netes. Instead of complainant furnishing a
teers avd prilial adaususasnas felecas %e ed om ia de ok Ligh allo wilt
Srontatgagd -bedakango etaranvaraat ‘ov botve tl; acer ye view
Fe “ected bw woiteg, ys mateay oLShe Sidadnody tom a oenlh
“ke dto tem 34 tas hobiveota ode FHWEE NOD ait endo
eyed verte adeit he beisese ton bee berreget haw ne rar abot
tory by polven mnogu .naleye Snel ta, og ie seaaotan ene absao't tot
ene svod bas Blow Kee fthe Geordies welt oeriee , tobaey oat
hich coiled ‘tee
shoataa as voviten of Baw Seige ho Leaner: eee aor gid thd cd vere
od oo wan tetaderwa od? ,wtolueg oF aotten te oe tet - :
enon oxtt fri. nan lnig wet age ahade ome beacbnada, yas et.
worn ante aut $l, cdoa'tie bam aweo'l, tae ‘Lo Od, 09d O8RRB, BP Ome,
aiativ soadtann’ sao wiitreg oF Dle't semddoune act vicinal :
yao Somivrens Re oat ai hae oni» a
oiiiti me mh YW enkadet of robo aed tm woleqo: watt ae
Cd sent hioy bate Chee oncmed deandaey salt: be engecah
ath {fo Vo bow dyerteee eAs tO neneage, one. “ve at ob bh
ont wes of doula gig tes oie +o eet Oe
mM { ;
ek 3) ase RA Le wi
Katee tugam a BAL (Ok naw’ trees pekbaw candied “seta
OMT gustoman belitbon dadse gweed Amwmdean com Cunemotge: WORDED
paw th < toegter ehte ab sommrenge hs o 84a te aaahd
“ed biwgie eysiy trem yetaw omecowny 200,088 wnt tw :
(One Gait only yetak betienge swolury an sinuhld : be
ont? ‘Bite’ .HERVTtORRWO Pat dee! baw el erie nD ohtnigaE
— ohm pba Ro: ree vt amin he " ys |
iar ane myorae
guaranty title pelicy in the sum of $100,000, the enerow provided
that, when all of the deposite were mute, the warrenty 4deedn deo
posited hy complainant and the trust deqds deposited by the pure
Ghaser ehould be filed for record, and when the Chicage Title &
Trust Company shovld be prepared to issue an owner's palisy
gusrantesing the titie of Bertie Foigen for 91%) ,000, subject
to the trust deeds, then the Trust Compant was euthorised and
@irected to pay complainant the $20,000 representing the aggregate
of the sayments which the purchaser agread to wake en the firet
days of February, March and April, 1924, respectively.
Complainant immediately procesded to carry out bis
agreements with reference to his titie, ra. Feigen failed te
Meke the $5,006 payments due February let er Marek Lot, or the
$10,000 payment due april ist. None of these payments was ever
made. January 26, 1924, re, ¥eigen entered inte articles of
agreement with eertain other parties, in which she deseribed
herself ae the ower ef and having eserew tithe to the premises.
This inetrument wae recorded April 3, 1994, and is ene of the
documents which the decree reneves an constituting a cleuwd.
Various deeds vere obtained and recorded, clearing up complain«
ant's title.
Defendants argue from the contents ef certain Letters
‘Galled opinions of title, from the Chicage Title & Trust Voapany,
that the complainant did net clear up objections to bis title.
‘There Letters, woon the hearing before the master, were aarkea for
‘Mdentification, but the record shows that they were never intro-
‘duced in evidences. However, it appears that acne of the objeo-
tions in these letters were waived by the Chicago Title & Trust
Company ond the complainant testified that all of the objections
yaa been “cleaned up."
ee
MAS OU dk aS Ral Bl AY Wile. RMN!
Re PNM RRM ONE iy BAG
Ay iret i mi
iN) : ANS
“tan avons merge alt HHO, COLD to mnie ae al ‘wilde ¢
“oh whook > red etre xt sty fusis ed ubiveme’ sit
ee ‘outs “a pid hee abst So wine aay ‘aa .
the asade ‘agus bad ast? ‘weuie Bite ‘_braoer tot ea ltay ‘aN Je |
Soe Witow aes care se eared ae paragete ag plete Caeauet vi
testdue 00a, OL tet seniet ate cotk ‘ee ees Vib sink cy
nice Bee kcon sm eeu ganyous bike ‘wale aiid” utnon Hein) W
adage ott ante adetar® QO, ONE wat Tait myennadinties a
tent ast ho oolia od beewge wonaitoxnn, ode’ ig bite reek te
i Ee seek Coase bei ciel Joanie "
i. betint nolo tie sly wht oS shuaneted ward
Was ie
mist al Aud “soa we bend ayes i ae ili 8
oat te eto el haw ,OOUL 2 fhega behunoet si veal |
buain ® amtind ieawen ae paveude ‘inthe Si he tee iv
. sate Foc od ‘anttsnre Semen heal bondadan ‘ouae's
r il Se eae oe il
ieinaini ‘glodass ‘to atavtmno oat extvidlwnaed veins bce hes aban
Diana sewed ® etelt @gae bas aid woes aneity Ye" io bt 4
“ \etpee whe of euotadohte Qu tints Hon tinh elindlinit
«oY bodgoo aver (x8 ens waka etre” garded pe ‘oath pinnae is
wont wenn o% jer yl dl " vt cal so" ‘Lunt
-oahde ec) ‘to saad teas a A
eet oY Gi th Wh AS
: saommimbaie one te readies ay
The revord fuetifier the findine of the master that
the tithe to said prewicea was in the complainant and that the
Chicage Title & Trust Company wae ready to lanue guaranty poli-
cies gusrantecing the tithe to smid premiees as provided in the
escrow agreemant, In the meantime ira. Feiven recorded the sopy
ef her contract with complainant, and divere jucqments were entered
agesinst her in favor of certain defendants, July 17, 1924, com~=
plainant served Bertha Foigen with written motice that unless she
deposited in eserow the instalments in arreara aggrecating $20,000
by noon of Jaby 23, 30m, he would declare the contract terminated
and the sarneet money, $19,000, forfeited as liquidated damages.
She failed te reapond, and om Tuly 78, 10°94, there wae served on
her a notice 4eclaring the contract «t er end ont the earnaet
money forfeited aw liewitated faweger. Notice wae given te the
Chicage Title & Truet Company fdemen‘ting the return to complatrant
of the warranty deede deposited in eeerew,
Defendants concede that the contract shewld be de-
@lared null and veld, but insist that equity requires the return
te kre, Feigen of the $10,000 earnest money, We do not so conclude,
Thies in not a ease of sm vender unable to make tithe er refusing &
@onvey in accordance with the contrect. The evidence shors that
he wae able to muke title an¢4 that his deeds were in escrew vith
the Chicago Title & Trust Company. It ia a clear ease of the ©
Proposed purchaser defaulting in reseect to the paymernte which she
had agreed te make, namely, $8100 on February 1, 1924, $8000 om
Mareh 1, 1924, and $10,000 on April 1, 1974, Time wane made the
easence of the semtraat on4 of ite conditions, he fatied to
Make the required vayments an’ she must he charged with the ree
ovlt of her failure.
it should be noted that by the agreement for the esepew,
* titre guaranty policy wae not to rum to the complainant but
sie gegoaws air te net bk walt wet deat Mroges one oy nil my
ete tat hie ¢euabe Same ei? ak ‘caw tne hone hae | ot naaas
whiey YFastnig awbet of ‘thowt pees ‘yaar wait tered # osnts ae
ate af bebivows ae nen board bine at ante vat canteotnatg, EE
ugoo oat bohtonet het werk. aint una watt al a
§ a Ne Ries ae
ty bam ae aie | “satanpsteb aletuse ve aust mt wed
nedaikbinn? ‘Your baos. ant wie loa yo 008 we be et See
ea
saa hotat tupht en fattened 090, 648
ste Bovesa wae onrnitd eer ae Ao’ no San
a
wed ad oe fan sotto | saasemah S hensh hepa at ttetwa!
as we Shay,
slat ay Ruder Dou une csv vrnquet tore Pyriti —
: Giana Rah aan eth ae ee
“drama ab “bad iwoaeh abonh D odape os orn
5
ob ad lake ‘patie ole read obaoaon etnahas ted sh Gi
Obu lo now ‘oe Fon nd ov a Koitom ‘foeaese + 00,048 ‘sah 0 yin
Bid os 0 haa. ai a $;
os) synth’ ton ae ateat than at stdane noha sd te oun we
19) a ear aty
gant grade so anbtve ost .fdattaao wats ak bow eonnbunbiun oe:
Or ok "
gate hbem new ome?
a nD eu
a ‘peteel ene “ene th thn ® “il pei
me
We oe
I Nad
wt ~ Ast hointede at ‘toms ade ins nto
oe Da PUN A) Ot ae a ©
oe
Nee
Y
G
yarns
ee ae
Wee ce ap vi
wna 6H ae Suswen a0 oad wy betes od Sede
tet Soatasomns 89 of a ot ton ean eoton Wnwnary 03 0
was te run to ire. Beigen. the Trast Gompany was ready to taene
such policies, and it was her failure to make the paynente which
prevented the gerforsanee of the agreeceant,
Defentants argue that the feet that the contract
provides that the 910,000 earnest money shall be retainet as
liquidated damages is net necessarily binding ant teat ander
certain clreusetances money oo 4evosited wil be treated ae oa
Ppemalty and actual dwages ouiy allewed, We construe this con»
tract to provide tat the earnest money shail be retained as
liquidated damages, but even considered aa « pornalty, the evie
denee justifies the degree in thie resgect. Goumnlainant wala
$6000 as a broker's commission on this prospective wale, sleo
taxes for 1924 amounting te $1500 and epecial assessments amounte
ing to over $17,006, which by the contract the wendee caawed,
Also there is the lost interest on the balance of the purchase
price,
We do not Alepute the legal eroposttiona presented
by the defendants, but they are net aovlicatle te the facta of
thie case, The deeres ite fustified br the record an’ 1% fia
APPT ARMED,
Matenett and Johnston, JJ,, coneur.
ay) ae Pe era) ae if
Yaar’ eminem lt
Ve
nas, of _om ew woeoo syst ast eT, tins yt? tly dow ht
Hee BERNE By ASR TaN Ny iat aa
t a) ry
Ay date adascoyam ots okom ah SenAaed meek gaat ols pene ae
We ah bab bevnd oy cinteene ae 2%, te spans fic Se 9 Rn
% nay 2 ah hole pena
eon, PTA ANE Oe Ane oa ger ne = weno,
bd @ nd ilecie nom tepeee COO, OL8
, 8a, bontete way mee A Daye Aon 2 ae Se ty
ona. Saale hee walhmad tAesnopoo jen ain engaitah betne ,
it R “ate j
bay Fee
° ha Soteond od Lktw bes taowor oe yeanan sbausboieunte
eG SN TARR Serna i sae
mn ORAS nurdeace ow bowels ee he garage fantow mr
; rk mc yt ei gp
honketen od Maite aon funcriwe sd tad er ot foact
AV rg gate ” eee p uf Peer be ae
ove oat set teneg iid berentaaos neve ted ’ ii |
Aj i : By RRCRURRRTS ER it
biew foe md «Lea sbooues ands ul weno ot | . |
Ret A 7 J mia r
, me vaden erisooquong exe ae apt 20 tame atamuerd
mh Laie seed tine a
fom nee mas bas 008 £6 os coo MOT ‘wert ie
tome ee Aahoo as | 4 ere o * iA ae Hat letaat ry Lia
_ emaerene eehce ots foar3.a00 ens we a bs ute ‘re ,
* had senreda wnat os
enaduroy ad? 6 eonnlad ett Ao sees a “ to Riga: Peach iat
SS We eat de Ey atta oy Pinas ia
a
y & 4 fe Mae
aia oe | Ae } ca ut
ee aie BIS oe ee rn qenatoai scqyeabal al ¥
; tt RETR, Me APS it Se ay ane wow ov
Sa ORE Ba oll ae Bealls batt.
stromag 46th urs « hie et
r ne TOR ale NORE: ges as si Mt rsa hom mayo,
re ¥ a F + svn q
ae ay +e aa bal ahve hil,
A tH a RE NOL Fk ily. Dit ty ™, be, fi mm a
W H { t
i Re NM CR eh SS Mane MR aN MR hiton vs haem ms
146 - 31276
HICK PaLZkILL,
Appellant,
) APPRAL PROM SUPERIOR cout
Va. ,
OF COOK GCOIMNITY.
RAY GHANESRS and ¥. Hi. GHAREDRG, :
Appellees,
BR. PRESIDING JUSTICE MesUHELY
DELIVERED HS OPINIGN OF THR COURT.
Piaintiff appeals from an order vacating and setting
aside a futqment against ¥. 1. Chambers, one of the two defendants.
The mmmmons Yan ivaued sgainet. both defendants and was
served on Ray Chambers, but returned "net found" ae te VW. . Chawbers
A general appesrance was filed by Harry Veintraub, an attorney then
duly licensed to practice law in this atate, although it has been
@alled to our attention that he wae subsequently disbarred by the
Gupreme court.
December 17, 1925, plaintiff had Judgement against beth
@efexndaunte for $3,000, FTume 22, 1926, which war at & subsequent
term of court, defendant ¥, Hi, Chaubers filed a motion and petition
@lleging that he 4i4 net know sald Harry Weintraub whe filed nia
general appearance in said cause, and that he never authorized him
to represent him nor authorised any other attorney to appear for
hie in saif cause; that he first learned on June 14, 1926, that
Marry Veintraub had entered his appearance ani that the firmt knowle
atge he had of the pendeney of said ault or the judgment against him
vas on June 17, 1926, when it was ealled to his attention by Tilliam
‘Baek, hin attorney; he asked that the Judgment be vacated and set
aside and that he be allowed to file hin appearance and plead. Due
Rotice of said motion and petition was served on the attorney for
ff. July 17, 1926, the court ordered that the fucgment
WE ae,”
!
aresn ms
eM imino
‘Reewe AOLAMOS BOG. AAU SSA i | : ev ue.
MERIC ZG Be > of si aha cde
ee Bie i | Po) Cie CARS
rh ee « > at Th KS ia 9 f oS an hifi |
HMROK AOL CA THART Mths 1 maenony”
AOD MEO aN RAL. Ae carey Ea nt Lata
“Nt we ast
BAhsiee shail ae eney Keb eer Aes enere's peice peg eomie et dnt *.
.parnehae tes oe . ott te @8o ot dato ait e fenton | " és
sew ane etaied: ae 'toh ai od Ansitoma Bay Stila itall avant hs ” " rN
mot ls ydt sik o¢. ae. Manat os ton" Heertedes lad eerodun yaa ‘4
sees peerage bical gametes toe “sparen we betes enw Ganetanaen |
ir ds
tome mae Fe Sapsuostit £ ator el eh wed sattoata oF
ent yd bewsnde th neconpemian eae eal tana ah sateen mo Fy
ld danthoga dmemp bart, tek Viituieaky ,@ROL ih panne
Stewpaadue ae ua sey alee ,anee +88 eaut | 1000,88 met
inode tee bas soi am Bote sredue cal ” tnaien'ten ets
aan bois ecw duatemten crak pow work gon bay on
whet hesttedtie adie on tate ie ete bee oh: pe
to? tenqan at youredte cate can heatveddom toe mh SeReN TE
tas? ,WOS ,OL sil me beorwet tou om sont rennas thaw ,
~ ke qn Peak ont sary how oo marten ee ob Severus ‘bat dh
mit fantons oamaestnt oes ty Ohen hes te oman hang ah
gen te betesav ae Punora dart eae vant base aut ov on wat me
nant shoots ee one tans ate ont oe vasa wt 8
againet ¥, H. Chawbers be vacated and set seide, ant from thie
order plaintiff appeale.
Defeniant Chambers hae moved that thie appeal be 4ie-
missed, suggesting that the order is net ao final and appealable
ene. While there are canes helding that euch an order meade within
the term io not final, yet it is new established that such a meo-
tien, te correet errors of fact, made after term time, in a pree
eeeding under Section 8 of the Practice Act, and is a new auit,
and the order therein is final and appealable. Harris vy. Chi cage
House Precking Cq., 314 Ill. 800, and cases therein cited. The
motion to diemise hae therefore been denied.
Defendant's motion presented a question of faet for
the deeision of the court, whiah held in effect that the appear-
ance of 7. H, Cheebere waa unauthorised, ond o9 he had never been
served vith summons he could not properly be sukiected te the
Judgment rendered,
The record in this ease comes squarely within the
Puling in Harrie v. Chisago House Wrecking Co., supra, where it is
held that "the petition or metion must be considered as a declara-
tion in a new suit brought under fection 89." Applying the lane
guage of that cane to the instant record, it ie immaterial whether
the declaration on ita face discloses such errere of fact ae would
be sufficient to recall the judgment.
“Appellee” (plaintiff in the instant onse) “felled te
False any question of law concerning the sufficiency of this
declaration by demurring to it er by filing « plea of
Seka or by motion to dismiss, We have held that such
s preper practice, and that where the suffiaieney of a
4@elaration is not questioned in the above menner or by some
other oroper mode recognised to test the validity thereef, on
appeal no question of law can srise in the Appellate court or
in this court as to the suffictaney of the deolaration, Ye
have also indicated that it ie incumbent upon a party to plead
to the declaration in seme manner, and if he fe satisfied vith
sufficieney of the declaration or motion and sllegetion of
=.
poe
giad wort bite sth ion ton hits be dnnoy ad eta tian 1D im oe ¥ tant
es | eatesoga webatete aren
wih ad inegas aff? tact bovem ant atadund frohuetet wav a
eithatesnys da: kantt a You oh sepie wt dant anh tes naie ‘jenn
akadbe anne ‘aabeo a soar sand galt Los SIRRO one. wrod 9 kide «909
thle a ost, test: borin Lidatae wom ot oh oy, ofantt Yom wt wrod oud
omy a at jiats meet 08s shaw staat ‘te o20% 88 toerr00 ot ‘saone
ee wen re éh hie (tou 202 tome ene te, ga seltoet sobay antbees
00 Rheeee "kis Levert hse Lert wt atone conto at ba
pee haste atprone Libel “fe 008 esa ay a:
- Hes nae need ore toredd act eatin ts os ‘sottes
ae? ent se aaktawen 4 beeiodste ay ttm i see eae ik ‘ern
~an0 i100 OMe Pcs dome at KANN ie BAW een Wet ‘vp moka ten wits
aan tree eit wit 86 Set vent Ben ey aa ote dna ee We!
galt ad Rade tee Oe Meee? Hee Chey ial axoounre 219 bw neivinws
shaxetaey somg birt
add ahitle yfereuse wowoo weap whey of cipiesta’ we vn ne
at Sh wzery jexoeu 09 sabipet powell pape ke 2 white eal
noe fond « od heteitense of Pew in a) penny ott aie eA
otk ont yahelags "88 nedtend awh Yeigatord Stew’ weale wk med
ceisaie Inieduawt a2 62 howe sietent see oF one Warts Qe ORAM
hig ap Poet to eterce dose Geegtawts weet wal wo: ‘Met demoed nt
vttemstnt eft Siesen eo tao ted tee wi
Ae HOLD” fepan frevend wet me Trhtetere) Pee ay) oe
‘es ho yosiotol Ting at? gitiemasaey wal te Hel degerp ol)
ty ete o gall yh ae FF of yutrrmed yd. heck
alt bied eved OW ,aekamlds of nolion qd te a
i he get hed iy eff wtete dost ton ,oekdomng aeqet¢: ‘ie
ap naleieenghibnaae ate 6 are om See i
yah asd ROT e |
te dinon ede tiongA oft hell ane ‘to Henning on faaqae
wR gine Rater Siva mats Vine mit of ae Sugeo ahdd md 7
hasie oF Yhteq # Reww amanan a me) | hf he taot beh oats ipa al
adhw Sette ition et sd Vi den come wee |
te inte aa bas apdtom te rebheriatptaill hee yous torre
uate, abeaen aie wid ah aN as i
=
. © 4, RE
Ht eas ie
facts he should file a plea derying the truth of the facts
stated in the declaration, There was neo demurrer or plea te
the deglaration shown in thie reeord. There is no eounter-
affidavit denying the facts, There is me deswrrer te the evie
dence oF sworn statement aw te the facte made by appellant's
attorney. “* * *
And farther on page 507 the court said:
"Ae the case stands, no queation of law is presented on
thie reeord either as to the declaration or aw to the sul’fi-
clency of the evidence. It was purely a question of fact as
to whether or not there was an error of fact committed by the
eourt whieh culminated in a judgment or order dismivelng the
suit, and sopellee has preserved no record entitling it te ree
view or question the facts. There ie therefore no question
properly tefore this court as to whether or not the declaration
stated, or whether the evidence proved, an errer of fact in the
former proceedings in support of the Jucgeent or order. The
court pronounced judgment ageinet the appellee and entered the
order aforesaid, and it suet be considered ag without contest
on the part of sppellee, because the record 4ooe not disclose
properly any 4efenes or any ebjection to the court's erder.
In order to preserve for review a ruling upen objections of a
party, whether the saxe be as to the Jurietiction of the court
or otherwise, such ebjections must be preserved by a bili of
exceptions or ite equivalent, under our Praetice Act, Much
objections or exceptions cannot be preserved by mere reoltala
in the Judgment or order. Grand Paeifie Netel Co. v. Pinkerton,
2i7 Til. 61.*%
This opinion diepeses of ali the points raleed on the
imatant appeal, and the order is affirmed,
A¥VFIRMED,
Matchett and Johnaton, J3., concur.
stoet sf te core? oat ay Neh ante a ie A Rivet & ate ’
rd. are Ey Se xpasenneh ont we mgt sane he crbtane
atetmunen om ot anatt yer oors mtd an end ne Ae
ebve ant of Teresi en 62 etetT ,adnn Qt yale .
a ick oho ston’ sind oo aa Pores bl sows to
Re i
eae rhdem. dtaew odd ROR ayne! eo Anite RA + ati
Hinneete ab wus te me oeoop oa, pebak ce enki’ eke eae
ae gs ot ga to abhtexvafows a¢ on abies bra
phe Seti ty gp ane | ip
wit } besaue font Far
feos deeds ie an hous bbe oe
pasrtra fon Boob MensoT cpl af
Fnngrobenah
od? ae ASowlet etuten eee Lia Ye semnaeth nolalqe’ wee
pA ape lrar an Has eet. ak *epre poneadrre ily
(UBM 5 OS OR OS Se eee 1:
cai duh ea gah leak uathieae aie ht eae EEE are va tach *
We Eh SBR, VNR OA RS a aataomgennediene
a Gated ero Vee? eee
Be aw a perpen:
PRN LE, PERE 5 ee baal mann
sy wer RG Be td
dai Henk HOH wh
au ri as Neh pare shy i ORE: ise
Rg sone Bae aR RMA RI ie 2 Hs
‘ At Tk amy poe RANG: MRNA we eae
aide ne LO soi Senn web geond
AA
176 - 31306
GREGORY T. VAN KETER, Adminietrater )
ef the Estate of Chester Caajkowskt,
Deeensed,
Appellant,
APPEAL FROR SUPERIOR
ve.
: GOUT OF COOR tomrTy,
GHIGAGO VARNISHED TILE co., «
Serseration,
Appellee,
Mm ot
EA. PRESIDING JUSTICR MesUARLY
DELIVERRD THK GPINIGON OF THR COURT.
chester Ceajkoweki while employed by defendant ree
ceived injuries in a fight with a fellew oaployee which resulted
in his death, The administrator of hie estate brought suit
@lleging that decedent was over fourteen years of age and under
Sixteen years of sge¢ and wax illegally eimloyed by defendant,
which aid not secure an empleyuent certifleste, thereby violating
Section 45, chavter 48, Tllineta Statutes, and ae a result and
sonnequence ef such illegal exployzent and arising out of sane,
Plaintiff's intestate guetained physiesi injuries from which he
G@ied, leaving surviving hie father, mother, brothers and sivtera,
Woon the trial, at the conclusion of plaintify's esse, the court
Amatroct ed the jury to find the defendant not guilty, ond from the
‘Sudgeent on the verdict plaintiff appeals.
Defendant operates a wail paper factory, in whieh
intestate wae employed. The evidence ae to hin age is not
te, tut it may be conceded that at the time im question he
between fifteen and sixteen yoars old. Defendant did not
ané place om file a certificate as required by the Child
Act. Becedent was omploeyed se a “stick boy," “isa work was
| carry a 'box Filled with "sticks," whieh ere about thirty-six
teretatenons mers ea ¥
pletion !
AOTRCUR WIN LAE geen
i a) al
« VFRNOS AQOD Wo Foo :
ran er ‘ : mH «iO arr qminresay 08 ono ti)
! Am), caniteaek a i . bs vd FP a
ne Sh Dec oe
a, ik wat
me ) asso wane ooraneant At: ee Mt hy ane
; a : vagy au Mita yo Diy 4 eN yan pate
hase ae x MOTKTRO mae: RAVE 5 9
ity yb - te. exon nea seo? ove ‘ae nate
re Me ey
, trie b ae Tab ee Seyotenas, eng Pah ‘ted ee Ye, rane
boise irae rt ye bene, sessute 8 ehowktar oe wesonsse es
aed mov bow petting fea santas tok ene Sat oF niet ats’ 1 oat
. sSLaogga Viivatete tedteey out wo
| a bit aa eregent ao eeg A kaw os sesanege Samo aet9 is
gan ut soe wha oF oe socom ive ont «beyo. eate * Men no
apeen bib snubae tec ; fies exave omega ba | ;
beday att xd hoxdope bel sao there * tn 10
saw dsow ath * axed tote" * on oe
inehes long and the diameter of a lead pencil, for « distance of
abeut fifteen feet and place them in a atieck holder. His mother
knew that he worked fer devendant and she was alao told about the
kiné of work he 414 there. Sometimes he gave hie pay-cheek te
hie mother and sometimes te hie ruther.
Alex Kaninekt Tas an exployes of the defendant; he
folded poaper and stamped it. (m the morning of Kareh 9%), 1924,
Kaminski wae away from hie slace ef duty fer «a few minutes and
another employee asubetituted for lm, Deceden? Lert bie work as
a “etick boy*® and went near Kumimeki's machine, A bad roll of
paper cane out of one of the machines and the eubstitute by
mistake placed it om a pile of geod rolia. When Kamineakt returned
he saw the bad roll of saper vith the good rolls and therenren
Placed it with the bad rolle, Decadent then teok it from the
pile of bad rolle und placed 1t with the good relia. Baesinekd
again teok it from the pile of geod relle and repladed it with
the bad relies and admenished decedent to “mind bie own business,*
There were further worda between them, altueugh the evidence is
indefinite as to what was said ond by whem, One witness testified
hat decedent said, "We will have it owt," and then went back ta
his own work, Kaminski and decedent were about the saue weight
and height,
In the afternoon deeeient told another employee,
4 Veesalowski, that he hat had a are with Kaminaki and thet he
r was going to have a fight with his eutelde, Jeually when Aegat ant
left defendant's factory after the day's work was over, he turned
©
to the right on4 started homewara op a walk leading directly te
i the street, but this evening he handed Vesalowski his evercent,
hw and luneh bex, and after going outside they turned to the
j
and walked akout twenty feet, where they waited for Kaminaki,
'
i ae sah
Yo eodatelh « rot , dhameg hee &. mw ke antes, ont bom, ened oat
toxpou eth jwebdod dotte a at med¥ beng bao’ toot aoe st. de |
add suoda biod .caie ame asin dom thobasted vor hoxtow on tact wie
ad Apeseoyee wid syey oe neulsouee coveds DLN oe Meron te bad
igh : TED bl j 2 i BOAR Pi J Hite mercy
a eosite’t ate il ‘eealioncs anos frm, sestom ha)
od pdiwhae teh eas Te oavalene ie aw reer? meta
tot C8 doco Ye yutowom odd #9 oh bequede. tan ueqnq bebLe? |
ban eotuntes wot » tat gent Se ape te: ads mor’, yee saw bis hank
ee ato alt PE Amwbooat sabi wot batwdtandwe seyotemn —
™ Lion bad A ssitnsmoonh e? iinakwed then Saw ell “od Xo tte” a |
& ph BT ie
et ‘Sich ibedue oat yet asiisionm anit ‘te # het te two oar sweet |
ba Rs a. NR ey GN Ce 8 ke bidet
teotobes ‘His stan ee “athor hoow te ehtg 40 th beeatq ye et
ie Pe eh
meqomnd? ‘pin alos hows eae ai he sega to Ator bad 9 ye ro sie
"“GhY with 14 xece abot Sabieced “Velsen had ont ‘eth 9
panda’ 2b. cbbr’ bag Cae “AW ii bi ck Nel Stan”
“dibe G1 Betetger has witer booy to ofig ott mort $f dood atags
© neddiedd awe wid sala” 3) Sdrhopeh ‘bortddaiube ban alter ne od
at sdawtive oat “jveliete amd aeowted ‘ahxoe sodinu/i ovew ve 08 :
geriivess @awadle sid mdi a ‘pine hies oe ‘tede-ot- ‘a -” me nf
A hina ¢ pret te ua
4" 4 yy 3 i at
‘irs ‘gitne odd jivode are ro deoeh ne ‘tind * ve
% point pry he poeeeestl
oe ‘Goat ‘gemw ace bee * dee ah oned ftw ow,
of. hate
LT a RO bed Tisai
atonetqne nodttone bod Sonhnneh noone add ot b
Bk my,
ed daclt Gre dieataod Hoke few * ‘hem batt oat font dlawo Lasev
CO ALR Emme oie ale
; fas knead este eheoett ontario abs ‘0 bw daty x bane eo i; !
Pr Pav ane MO: 2 wes
bored i eve naw teow otek nds ‘notte erotowt ty ee
eRe Mire ae eter phen y eee
os ‘etsdenr ts patheos tinw a ‘ne Basmemorl beset baie Pity he oat ot
ee ae) aa ate ihe er
facoteve ant iewolaeaY bibned ad pak i
nek Ri Mihi Ac AD
j i A i ight
" yar ‘ad heed’ ‘oat feayve AP ig
nant Oh ville Alin Bbide Ade Colle:
yh meee sa dock om
whe came out of the building about balf e@ minute later. Vesalewski
testified that as Enwinski came up, decedent had his “pose up* and
they startea te Tight. & for blows were etruck when decedent fell or
was knecked down and fied within a short time,
Defendant asserts that the reeor4 falle te divselose
that the death eceurred in [liineiv. The statute gives no right
ef action fer a festh from a wreng?ul set occurring eut of the
State. Wall v. Chesaneske © Ghioe hy, (o., 290 Thi, 227. It is
necessary not only to sllege, but 1t must alao be oreved, that the
death ocourre4 in Illinois. Plaintiff dees not point out anyohere
in the record where this fact is established. fost v, Boble & Cs.,
SAG Tl. 357; Walton v. Fryer, 276 i11. 564; & y¥
Of Moose, 285 111. 188; Dougherty v. Amerigan Mekenne Cg., 2665 T1l.
369.
Orn ey ral Ware ex
The evidence ales faila te show thut the alleged illegal
employment was the proximate cause of the death. Cansal connection
between the negligence shown or the illegal eet and the injury come
Plaine’ of must always be shown, and while violation of sertain
Penal statutes constitutes negligence per se, Bevertreless te make
Such neglicence actionable it wuat be the proximate canes of the
injury for which the setion is brought. Garterville & ferrin Coal
Se. v. Moake, 128 I11. App. 133; Schhaop v. Melean County Goal Co.,
235 111. 630. In
App. 116, the court suid with reference to the eo-oulled Chila Laber
Act, that the negligence to be presumet from the ampleyment of »
Miner vithin the prohibition of the statut«, pertaine only te ecoen-
‘sequences which result from such employment, an4 that before an
exployes can be held liable it must be shown that the minor empleyee
was injures by reason of such wmiswiul ewployment, Kolsiiy y.
| Stan: ne» 165 IL], App. 371; Hartnett v. Beste
Seat
a
nh Pe
‘Hinteutasn’ etotat aot a hid shui ith thes out, te tn0 omeie
ee Brute Pag oven" ets hw ten deme ee ane dota boa nm tat bo, iadalee e:
¥e. tte dngtinoot iusto’ Mowtse new Weeke wold ’ cathy of pedzete x
yee he sree: inte AE EP ee: io bh hme: mwa Bedoam a
| enaicn bb ot ey Aton BaF — ea team aeabte ted ‘dm oa
. regi on aovin nancace isnt homed £0 web: hava © ideo odd $8
sa
eit to due wire oe fae, Aeeganae me non phys!
ok Ft Nhe beset Bars: hae oy Th ake 28. SPR AAC
ae Hooamoe doawas vhtee ae te wane esoatxong! at isa: tom
anon: vad aad oie Pee Koqertt nat ae: rosin: aaneai tan ont
ptatene Ho sbtciety efkte Hew rest ev wena tan
olan pd atte Db ‘graven )am Bee moot Tyna: vedere Lomaee
ee iil nonwn sotenenbe tie nate we Pate we, ‘tea enacton
a
.
Store of Uhicags, 866 211, S51.
The proximate cause of decedent's dogth was his pare
ticipation in ai wilawful aot in wuiech he wae the agereseor, He
prepared for the fight by handing hie clethea te his comrade and
Waiting for Auminski to leave defendant's bullding after working
houre. Under such clreweetecces he could mot maintain an action
against his employer for any injuries Ke wight reeeive in the en-
suing fight. If a party suffers injury while vielating a Lar,
although the other party iw aloo a trotisgressor, he cannot reeover
for the injury if hie wilawtul act wae the cause of the injury.
Prye vy. ©. 3, & 3. B. R, fo,. 73 ILL. 3003 Glimore v. Puller,
198 Tl, 130. °
Plaintiff's eoungeal cites a number ¢? caaee where come
pensation wae searded under the Workwen's Compensation Act. We
foubt if such enses are preeedenta in an saotion Like this, but in
hone of them was the injured party the aggressor, and the sward
‘Was based on a finding that the altercation or agcident enysing the
fajury srose out of the employment. In the instant oase the dif.
ferences between the decedent and Kaminski arese out of the former
Leaving hie uevel work and interfering with Kasineki in the proper
Performance of Kies duties; but whatever the asuse, the fight was a
Private, pereonal affair, after working hours, off the preniaee of
the defe:dant and wmrelated to decedent's oxploysent by defendant,
Where is alee evidence that the decedent's garants
knew that he was engaged in this slieged wilawfyl sopleyment and
knowingly permittes it, It haw been held in Newton v, Ulineis O42
‘Be., 6 Ti, 416, that 1f the parents pervitted their eon to be
thus illegsily employed they cannot reeover as benefictarges of
their own wrong, ond that they may not recover damages fer his
death in on action brought by the aduinistrater of hin eatate
_ the illegal act of the parents was » contributing cause ef
Sota
nN ¢ A aye ROG
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gon ous af ' Penionk age gubewiaegad haan pintor ak
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a eye AMAR: hain) Ra Koide 2 sh Hse
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244 © 31376
PRANK PARRELLI,
Appellee,
EBA: | APPEAL FROM SUPERIOR coun?
ve.
GF COOK COUNTY.
PERE MARQUBTTE RATLAGAD
COMPAKY,
Appellant. }
m44].A.
GR, PRESIDING JUUTICR Mesune.y
DELIVERED THE OPINION OF THY COURT,
Defendant by this appesi sceke the reversal of a
Judgment for $7,000 entered upon the verdict of a jury, upon triad
of an action wherein plaintiff sought compensation for injuries ree
eeived, af alleged, in the cours of hie eepleyment by defendent.
The suit rae brought under the Faieral Bupleyers' Liability Aet.
Tt im conceded that at the time of the oceurrence 4efondant was
engaged in interstate commerce,
, The vital queation ia whether or not plaintiff wae an
employee of defendant, the defendant asserting that he was the sere
vant and employee of an indepndent contractor.
The accident happened Yetobar 2, 19235, near Porter,
Indiana, Plaintiff was riding from the bunk houses at Forter
furnished to laborers by defendant, on a handevar furnished by
defendant, te the place on the tracks «herp the laborers, including
Plaintiff, were engaged in repair work, He snd others were propelling
the hand-car by the ordinary handles, when the handle used by hima
vroke; he fell off the ear and was run over by the hand-cax dmmeti«
atay following, reeciving the injuries in oueetion. This handle was
Bid and was rotten inside of the goone-neck or ring in whieh it was
3 a: — ‘cuore of the gang testified that he hand examined «0
|
caaiaa RN ip i
Lal me ara Oe ee) ae
POD wous 40 2 sie ase si et et met. HY,
GAGAIIAN APTI RAM
cs Ok atta Eke erga. |
weg ee: Gan iS c SNH elk,
' qs Uy Ae i a Fe Ly ee. 24 SRR Sandan stteieinn
i
tess EN pO
‘Weer nem wmorreyt puserasaa .
2 CRS cer Xo aorereo any cmv ee
& te Kepseves ost exec tonage aide yl svinniarelt
tote? aves .ymh « ‘te doibiov one wage heretan BRON iia oom
ox ap initat rot aoltanneqens deen Tiitatele aor ite natton
sdanhis'tsd vd # rem tang ey Lege aid te owtwmn sate at bene Lhe oo bee
eee wd Lebdoks ‘ataydtom® Laxehel edt gebay thane: ad san
naw Seabee tab: adgermeons at To watt age a tent abe
Re RoR odatenetot uate
a a ‘Pitaiale tea ve saline a4 soligonp tat hy ad?
“100 ede tar ad tet gakenemew Pnsdad teh edt “Guat i |
Toto@tiaen taphargebak ae Te. ore ba
HILO tame CORE .F sodotee dearcqat tamdioom pat | ay
Brted te aeuyod sew ee) moth gakhde . awe alia:
qe hediediecy? anoabsid a ae nL) eo wxoredal or teat
Bathe Loz swasneds f wales arpa zie wdontds eatt fo ane Le ost ot af
0 ald wrew aterto ba of .whtew shade me anaegiee exer it
ml oe heaw sii OM) neabe ene tiered hve inl -— tay
ean
caw wthnal aie? tation al oeiaibat ay deste als tort ve
eew ob Moki al aly 16 Kohmeomnng ate ‘eo abtent wet ot mee b .
Wes Headey bash ost Pauly to rterent sm 80 20: ame
ot #2 bercoget ban: ia al exit moc ne a cn
seis, hin Kice Acscmsetlt se ak nets” by Mikal Ack ile” las lila as
for a new handecar, Plaintiff testifiot that he hod nao Feeolles-
tion of ever having ridden on this particular handeear before the
morning of the aceident; that he had no rier knowledge of tha
eondition of the handle, and 414 net know it waa rotten witil it
broke.
About forty men, including plaintiff, were in the
gang repairing the tracks. ‘They were spacing the ties, that ia,
straightening crooked ties, and surfacing, which means if there
is a low spot er the joint or center low, they would be lined
wp anf made level.
Refendant presents two contracts covering the time
ef the acoident, which, it asserts, show that this work was
being fone by general contractore whe omployed the plaintiff,
ané that he wae not the employee of defendant. The first cone
tract, defendant's Nxhibit 1, is duted February 1¢, 1923; and
the other, defendant's Sxhibit 2, is dated January 1, 1923. They
de not differ in any material reeaseet touching the question under
@onelderation. They are between the Pere Harguette Rallroad Gem
Pany and “¥, L, Kellogg and i. ¥, Grego, both of the City of
Chieago, Illinois, organised and operating under the eommon law
of the State of Illineis, doing business as the Kelloge-érego
‘Railway Service, hereinafter * * called ‘Contractors, '*
Defendant argues that the construction of thease con-
Sracts is ao matter of law and that the court should bove eon-
strued them as establishing the status of the Kelloge-Grege Come
“Dany a8 an indeventent sontracter woploying plaintiff, and sheula
ji he instructed the jury accordingly. It Le the well extablished
,
ru ‘that, while the relationship betveen two partic to a contract
be & question of low, yet as to o third party not a party to
B, Ke is not bound thereby and the contract in merely one of
As Fe to be weighed along with other facte in determine
ir
“09 £69007 on bat od fect Soest idewd Viftaie lt «tephra wont « tot
wat axeied tacPhant tedee deeew ebdd me ahh iy ys kwe tee. te apis
wit to aohu trom tolee om, Bae ont bane piaedloos et te weer om
#2 Citas aedsot sew ft mpm tem bth bam sae ene bie 01d tone
pat 4h exer Pubgatate getkhwtond ,aom giao” i a ,
ak gasid peeks writ aukovts Oree gout .edewst enig aniziaqet gang
exes th oneem dolde ,etien tee pom .oe bd. baalowee aatlone $5 ;
bantl ef bivow yous wel totuen to tateh add so.togn wel as
| heed obam bas «a
out aid whtvaves stedeénuos see edhbeecw daha 5 e
gow shor ghee tame wade (ke eobed a ldo kee open
CYiitntete oxi negeloae ove wrodoetaues Loxdany Ys Sieh
tee gear Rat “.Seahan tah te weyotaien et teh waw on ¥
bas (E86L Ok yrmirete’ hoted wh ,c anitder eltnehne teh |
watt ae. i quiet Bevab ot ,8 ste tiaele w tonne ih
tehm notieoup git yaliinnet toque, te See tae yee wk seh oe
cms? haottied se Peupae eae ont nogwted wee Yoilt mrenery
Yo vel0 of Yo Hdbe Laneee OF LO Daw ppotteal’ sellers
wal aounon 003 coh gthiitewe Bie” hen Ritmgite (erent 6
‘ PpewWagyolied ens ox aantiowd gates ,ekoatitet ad stett rai
Jerathantned” ballon © © gee tie toned vam i
HOE bone “yo teliowiteass et seit contin Shabir tet” oi ;
tee rind bhwada Puobe wns see Yow walt Yo aoetnia oot
dale eedayyhtes att "Xe wade mate pn dnt a wt
fist hd’ rebstete te galyatque totems tae tnmhanee hak ry
boite Efdetew Lfow wee we YT Seite ensis aetrt OM Be gibmttat
Finely eis” le OF ne iva g wi anirterirod apete need iter hier: oH oh Hi walt
gy yotwe RB fom Yiu Bebe 6H ew Hey! (el ke me Ttebe a
on ise naecananel vena rs09 Nee rw ertoHe Hath tH
| wtktaere tab wl aioxt aca inniaalanes wets i 8
iy A Sal ide pe Dy pa i aaa ke Taka ito Warrinns sae
ing the relationship of an employee. Ghoninger v. Mann, 219
Till. 247; Springer v. Ford, 199 Til. 450.
in
Tll. 16, there is = full discussion of this question, with abund«
ant reference to decisions. Fran thie opinion we gather thatam
independent contractor is one whe undertakes te produce a given
Pewult, but so that in the setual execution of the work he te
not under the oréer «uné4 comtrel of the pergen for whem he deem it
and may ure tis own digeretion in things net specified; one whe
@ontracts to 46 a mecifie oiece of werk, furntening his own
assistants and executing the work either entirely in nesordance
with his own ideas or in accordance with a plan previously given
te him by the peresnm for whom the work is fone, witheut being aub-
jeat to the orders of the latter in reapect to the details of the
Work. The right te contre] the work contracted fur ie an import.
ant test in determining the etatus cf an employee, and generally
if the eiployee is under the contre] of an omployer, he ie ite
Servant. The fact that an employer may terminate the work by
@isecharging the exployee is of considerable weight as tonding to
show that the employee is net the servant of an indepdndent cone
tractor. The fact as to tho furnishes the tools er material
should be considered. The mode of payment for the work ie an
important element te be weighed. The opirien in this cane
Staten that it ie imoceritie te lay jown « hard and fast general
Pule or state definite facts by which the statue of men working ald
‘Gontracting together can be 4efinitely defined im all eames, and
that each case must depend om its own faste, no ene feature of the
ease being deterninative, but all muet be considered together, In
Duinote the weight of authority holds that the right of controlling
the Manner of doing the work is the principal consideration for
: ; the relationship.
OS Bek Me tbnei 6 aeyeds na Te atsesohtacen sit ae |
etc Lae, mea et ee
ROY \aghad tameO Gebetebed yy oa oe kee ob Lien bt )
abide BEI puphoandy whe Yo Mel sowoe th shel eh wrae y@k &
pa tnd weddeg we motaiae shit eet? .soaoiateoh of wpe er :
nevhy @ aviiorg OF wokeraehin ade ome ok thdeantneo rie h ery ero & !
gh at dew ott Pe kot troexe Sawees ery oe tod ) Pluie
Pi oe ee ee eee ee ond wenn 96m
edW ems Peal itascs Mow eyuekig at On aroe tO ae te oom ede é
wore wie sptdete bereas’t seer lo eonte ettiesen oa” OR pS |
OSeebhaaores AE ‘“herline tedelin dow oe gat rutews fae sinated
abv ty we bonne ‘tele eo ale seaaenbona wh 70 wap Re mmee ro
edus qatad suet ke , oie Gk Xeew WE cote cor moma Md mgt umbell e
asd te whtaded ond oF FowqaWT at wOEteL odie ‘to wtobre amd! Oo) Ht 7
ore fe ee ee
— bien ,PeReteu om fo asdeda aid sahara aay
pe Wt OH piyetans Ae ko Teoraes ent SOKaw’ peatrorssinsy .
‘ed teow off chaabeetes ya oye tine fe peat” ernie
oe gakbind aw piytew eidntettenss ve Ot eotetann ont galiithe al
688 dneSdben tat me Yo famvrebe off dea 6d woogie nie’ nee a
tnttednn 49 etoad o8e emite Lace? vile oF ba iba" 4
na at rte die 4eN beednd Yo boa’ bak’ A
Hh snag | rn ' so iy Peecven oll if hovgrconic 7 | te =
pin gniiiow hom ty wuskte ome i ue ai me » hi
"pk anne tie ‘al heattob YLOHIAPtOS wa! how banetinsgte rot vo |
hth SO abet Vad {Bioe% avo bt no babyot towel babe’ Weae | .
Pa ee ne Ree ot ” -
ame iron te ditgar watt Fake wbOOR eaEtolewa to wat
al Peenontine! teen aad pont AW ahha
tts ay
AAPL ess a Se a a Core Ried dec ai mr
y
Referring now to the contracts herein, they provide
that the contreetore shall “do such tallasting, tis renewing and
ether work on the line of the Fore Marquette Aaliway aa the Fere
Marquette may request." They are te 4o aueh other work ae they may
be directed to do by the Pore Karquette'sa representative and eneall
perform all the work to the eatisfaction of the chief encinesr ef
the Pere Marquette or his representative. The rate of wagee te
be paid the laborers ia fixed by Clause 5, and the vere Varquette
agrees to pay the “contractors” for any work not ineluded in cere
tain epecified items the actual cost plus ten (10) par cent.
There are also apesified rates for certain work, such as
stripping track, $3300.0C per mile; moving and placing joint ties
On newly laid ratle, 9200.00 per mile, [t was provided that the
Pate for track labor showld not be beyond 4%¢ per hour. The Pere
Marquette was to furnish free transsertation tc the men and hande
@are, also bunk cara for housing them, The contrast might be
terminated by either party on twenty-four houre notion, and if any
@ployee of the “contractore” wan unsatisfactory te the Pere Mate
qQuette, the chief engineer or hie representative, he shevld be aise
‘Missed and his place refilled by another caployee antisfactory to
the Pere Marquette, It was aleo provided that ony of the werk could
be caneslled on five days notice,
The Kellogg-Grego Company had an ageway or office in
hi cage where men applied for work, Plaintii’ applied and was given
pass to Porter, Indiana.
Tony Bavara, « sub-foreman, testified that there were
men in his gang, which inoluded plaintirs; that Hell Daniels
# the hond foreman or inepector employed by the defendant company;
Daniels gave him orders; “he gave me orders ~- he teld me te ge
| and do what I am te de myself, and he sees the bad ties and
; ‘then, to take them up or do the surfacing; that thie tia has
ehivota yodt lected Kioarinen of ef wan gabete tell il
Meuel ‘ptctenaters ere watteattat we” a6” Efede we ‘ie Spa ph he e te Veal
wnat wed oe aw hai asveuper: Sey! mle “te @aRE ” +o ry
ee es ee “igi ot OM wbebapet wu eddons
rere toa aptinianentne’ ‘pt ee Sbupele were wath vw “a BY botdoai’ «
‘te piaaiveatae “be trig dite “to neettes abbas ene be ‘Bow’ ott tte ir ert
Sagee bo oti ont 00 Rte dae oesoes okt 96 ‘abode ea 808" si
abvaupes' bx0% ane haw. ede ye badht wl wrote it bt . .
tap of Behgtowd vox deer yan vot “nedeaeminoe® mie yme one
stuae 24¢ (02) noe Cede teed Goten ode ones bernebed it
ae than eee aberieon Tet wade: Se Teteegs oe te*ded :
toh gator — Pete glume oan meg — — a
| went ne d er MOE a Sinceit ad ton fh twoite eadot :
amheass Sein reat oe oe. tio kitadueesamnd ree ath Roe gk ert
ca soften Aemeetons, Hilt mines nant, kek eta, arset meta ae , , :
WH Le hoe gate, wR mire hes Ie ey EO sialon of Daten howe
ial went ust halt Wher OMe 2 aims aes * greed akg
aR 9 Deane, eet. ywrAcRAamaa TION eka gO ventana eine sia sem
OF. ERatM te Lene aR ROME Pann MORES EI bem
be Saran, aoe elt, o yaa dault bok kegy cpt, mae ain < mp, as
pen Se a me f
wd eos’ te 70. wean op bes, WERE siosdlapiantea we
ee monet
alps shes tant (MDIAhAdG, omtardog!
Rata gE Fasban an PR ee ere dig. tor Er
6, OF wie BLed oe owt Te gm aii OA femme
he PU Ree, eee hall at tngervienet cl
me wht sheet Seale, pymbor tae
got to go; this place needa surfseing up seain, and he told me
What I shall do;° ** *If he wanted farrelid to do something,
he would tell Bim to 40 it;" *@ “fr Gell 444 not Like the work
of a man on the job, he woul4 come down and tal. me te fire the
Man, and [ would fire him;* *® "1 the work was not dome wl.
Fight, in connection with the laying of the track, he weuld come
down te me te send some man over to Fix it, and £ would do it,
but he woul’ always oome te me an?’ tel] me what te do,*
Another workman testified that he heard Daniele give
Orders from time to time on that werk, “lots of times:* that he
@ave orders te Bavara and to ths witnesa; if Bawara wae too far
Sway, Daniele “would ge te any men and tell him what te de; *
he, the insvestor, picked out the plases where the track was te
be surfaced, and he showed we what kind of werk ts do; the engi.
Reers ured to put the etakes up and advice us wheat we were to do."
The engineers were sumpleyed by the defendant, wade: sleo furciehed
the material and tools.
A report wae made daily te Daniele eo? the exact
Rusber ef hours put in by ali the men, ond Oeniele kent track of
the time. The men were not paid by the job, but by the hour, and
defendant's vouchers show that the work im which plaintiff wae
“@Mgaged at the time of the accident was paid for to the Kellegs~
Grego Company user the basis of the number of men employed and
the tine,
Prem theae and other faets in avidence, we conclude
that plaintiff at the tine in question was an emelgyes ef the
Gefendant, It is evident that the only interest in the work that
the Kellegz-Grege Company had was to furnieh aber. They were in
faet merely an omployment ageney and vent owt laberere as the de-
Pendant might request te perform labor wider the eontrol and diree-
ton of defendant's representative.
eH, naoe id Bane ttage iy enh eae tae sheen sania sae, 4% oo
and sage
entionen ai at Ri koremal Beton wil, ue a teh Sate
oh ae Rist
weg oat euht dom bbb Liege x we ore om ot Cod Ling 5 Lorie not
CRB ae aba ye ok BAY
gat wot at om Ltas aa weak #oune beter ot dot, ot #0 me som *
hho spon ea say Axo me 12 ee Samad one ial her |
it os ee om nate aie ait ee Tere. pina amoe nn. a cael
Saat of dace om Diet hme pa, oo ome. prggnetee, Ae od ted
erin aiedaa® breed oo tet? SO ELL ieed amet ow RAE OMA yyy ene
esi Jedd "ypeemis “to sted? ater godt Ge oaks ae, woke onsen
pet god wer ater 02 piteeette nab ot, CP AR ECR
#4 yeb of tatty obi thet bin geen gen 98 om bimew! wkekang,
ed oe doeed aks oxo weeks aoe dow dowela. poe nd a
whyue ond geh a? dtee Ye babs door ae dowote. ea hme, ~ deen trom e
*,o) at eam ow tein ey onivha hew ger goede sad treed haan ®
Mirae? wehe soldw (towhowteh act ot Aoyetqme: exer atovatgar !
ol ghee bea L .
ee ee ee eee ee ae iste
La teed teed aka tow hee nem out Cha ge adda etme) 24
Bie tet! eae ye aut {hol ear we Bhee Gok ae OMT ean
: wow Tiivalide “olde «2 aeow ea cote wena roy et tambo he »
“avOlind mit os tht Rha Ri Paw ome ate te on te: ta |
bie hws Tom: wom To Wwe @F te a bonlt dabiiulcteiiei
pe a Pi feta da >
* ‘tiie oe jovnebive ab atne't 2080 haw goo rd eet war toaly
‘we Ne em EO Le me eHee et thm OF wea, web wkoy #
aint teow Wilh at Sao re ta Eine Al) nent” ew bro ek AR) yaaa
ak eee wht .ouak a tew? OF gas Dill YamasiO®, smMEDENMORER mal
“oh 016) wn axoxedn tale! s00% bie ‘osetia Semmecogni sh harman te
3 ane dito Kotties oct seme endif nett, at) tamnpem ay tan
i Leviiadcnentqnt
The very character of the work 4s euch that the deo
fendant eould not reasonably leave it to the control er direetion
ef anyene «lee. It wan the fauiliar work of repairing tracks,
straightening the ties an? leveling the ralle, and upem the ralthful
performance of thie in ite detatle denendted the asfety of defends
ant's traffic. It war not a eortract wlth Kelleoggetirege Company
to profuce & wpecifie reault like a bridge,or a bollding,or a new
track, but was the daily wort of traek maintenance,
In Furke v. City and Sounty Gontraet Co., 127M. Y.
Supp. 4600, the court hel@ that a similar contract wes simply one
for organizing « rorking force ta be used under the direetion of the
Pailway company's engineer. The faet that one ef the partion is
termed a “contractor in the agreement does not extend the contract
te cover matters clearly euteide of ite soope. Lt is quite semmnen
for men to make thease persentage contracts, varticularly ines the
modern influx of foreign laborers, whe require a superintendent
Speaking their Languase, and they are generally referred te ae
‘eontractors' without anyone aunsoeing they are independent eon
tractors upon the work whie: is in pregress.”
In 2 r. Vs Lmdvate
4, 276 TLL.
472, 1t was held that the injured party was an employee of the
Pailroad company for the reaton that he wae eubsent te discharge,
and that the railroad company sad the wioht te control the manner of
Abing the work, Other eases supverting thiv conclusion are Rooting
Mata Srarsherh Ina. co. 300 I11, 467; Hatiroad Co. ve Manning,
m, (Ky.) 143 3.¥.
36 Okla. 358. In
sant that the relationship of the parties wae a question of fact
@ be determined from the evidence, and even if there was « conThioct
the evidence the court would not set aside the verdict of the
y it was clearly and manifestly against the weight ef the
wo8 ost Sas? oun, wh weer add Yo Uneammmatg EMM MAE op) wh tn:
se bdewr th we Lowteape eft oF FF awe f ‘cinietoonane's ten dahl sh ox
ened yattioges Re Mtow telitest welt gow 31) 0mday, organ 0
Swtstiwt 8% sage ban je Lien ad yortiowe lL baa o0bd od manetep kease,
wheetes ke eee'tee vi! Bothawaeh eLiated woh wb wae Oly on nance ta
Wigan omeeiagno liek sli tw suendcion a tom aa FE): sotto tine
woe ® ents a Re, omiite o att tyewt- as aay eas
AE OEE 6g
sete etnaky “wane teartion thbake w tadt hdod soem (9d) gy MO,
aad ‘he nOhfeetl) Gay tedce Aoow od wt ikl
ak aohttey oft Yo ano. date teat ont VTeemL ya aye gues
somisnes ect baedue Foe geod domo spetgs eff ah coterteser” ade
omnes Olu @2 FT seonen et to ebsrdee yesenty wuoghamitpeD nd
eid ao ita Lee eg yedeasince <onsesnengianneneniatits com
faebiveninegyy & etheper ate yatetedet ag toc’ eos bab oa ’
Oe eo herie tes Uhletendg. ote Yo? bate cai RES?
ated Piehewtohaivers yout gekeonqua eaoyae) tredtin ‘ade
* ehetgecy mh eh cater ahem pelty goog)
von tats beh oP 00 se tine met opee, WR ule watt
ee er ere a
(Rw NHAN IT Of Goel eared Fee) omeene cult nee ee bm
to anditea sos fourame of tris te we het oom meen Pat hdery mad it a ?
unites ote mathe inane aki? galtcocgge eenee we pnenyePrih .
‘ A i* ,ott Anwar Welt QvBe 24k GOK wit 2 Bitlis ito Levan mA
wai: ee he teh OR of a Ruma fa bs , sit eit ”
tent to nekiearp » saw antenna get Te itanoanson, wid tnt :
Colle 2 waw oTedd ‘TL mewe bee yet ptt sey ihe Sek od we
ot? Ye telhvew ad? odioe tae 01 bine den dome, oa
with Ua Kedew auld dewtene edad teed bik ches ee bh es
evidence, A large number of other gitations mbeght be civen: sleo
some holding a contrary view; but each case must be decided ywpoen
ite peculiar feete guided by general principles above atated,
We would not be Justified im dieagreeing with the cone
@husion of the jury that giaintiff at the time he waa injured wae
an employee of the defendant.
Defendant sayr that olaintart's remedy was under the
Indiana Werkeen's Compornsation act, asd that the evidence chows
that he has received compmeation wider this act, Geetien 13 of
this act provides that sn injured wmicyee may claim compensation
from hie exployer but cannot presesd againat both employer and some
ether person at the sauce time, and ommmet eollect from both "1f
compensation ie awarded and accepted.” Chile the evideanes ehows
that vlaintifr received 313,°% a wees Sor some time ofter the age
cident from Kelloge-Grego Company, there ia mo record of the prom
@eedinge of the Industrial Board of Indiana ond mo evidenwe that
it “avarded’ my sompenantion te plaintiff. The evidence tended
to show that proceedings before the Indiana Bourt were brought by
the Keliogwetrege Company noming the plaintiff as the defendant,
The cases cited by defendant were decided before the Indiana Come
‘Penestion act was anended So as.to prohibit an injured party from
“proceeding againet beth an employer and wisther person “if compen-
“sation is awarded.*
: Piling a claim for s compensation does net deprive
tehity eof the right of action under the Federal Smsloyers'
ility age SARURE. Xa. She 234 Ved. 832,
a made of the inatrvuationa, but they were
im line with” Bla: at liste theery of the oase and there is no ree
$ Veorsible error in this respect.
4 We see no justifiable grownda for reversing the fudg-
ment, and it te affirmed,
AY¥ THMED,
t and Johneten, J7., coneur.
Gale dowdy of Scydnh aaetiatio memiy te: aT Te A shorn v
ae Da kon od Sess. meme Stone Bite paielbe: cuttaeo wate Lone i 7m
ebetada: avota a Sa ioadien : tones, yo bebhny atonh ee BL 00 aa
ee tile. 8S De Bakes ayaa TY mb e Veta eo fom hivew WB lo sia te
aan bene hed aw of ames otk te VELOote he Beet get aa re: v9. a ’
sister babs “anette lt re woverens! x
AS Bats ee aves htt hati bin fey Sade ane dtaebae ted to. ARR AE iA
awots eomebive ead Smee Bie tae woktmnem aed af emmiwe® as
‘te CS mehtert ana. She So baw awl somes qaine Nawheben aac an 3
aBLInEdwYkos minke yao HeeDeme ercw hl ae ane” anisbiedtew
oneal how woyotyas alge fede Iemmerng: Ponsa Sant ete whe
RR Mbedt ans’? deal ton Serrawe haw | oad onmeede’ Ge Gimme tel :
ewe soa Aton GAP ahh * team Bee haba wR :
oie ed Nadie oped sso eNt Hoow Ww ORUOLE: hewienet Lg i
mete ai Le Bignet om mt meee y pine age epi LC) meh tm
a Pe
behar? Soxoptvo oat VP ireeheke od mmitemmmamae tae! etait
ee drQnotd ore eee smaihhad old wee hod saaetsabnen nile ea i “@
sonatas woh ot ae VEbwateede at! gactaman! vasuicsne Who oa ai r
tlt) cle bea wal, eaten? hedote ot gt eter seeae &
oth yi tac bacehat om pid delgge nc 99.08 | anbase nite
manga Th" aparog aeciiene tee Tey OLeMe MA” sou dante the
: ghoul iain te oh. aed gee ah we omer: ante ta vende on ai a
437 - 31569
ISIDORE FRIED,
Complainant,
¥Be
PRABK L. BHLSCHLAGER and
CARCLIKE
L, BHLGCHLAGER,
Aappeallecs,
MORRIS H, JACOBSON and
GARAH JACGRSOK,
AY PKAL FROM BIUALOR COURT
OF COOR CONN TY,
appellianta,.
(On Appeal of SARAH Jaconson)
Beferdante, mt ALN gh aaah
S244 [4 Coe A
Say Saget ma @LL¢ VS op eZ
BA, PRYSIDING TVSTICR ReguReLY
DELIVERED THE OPINION OF THR COURT,
Yetaore Fried filed hie bili ef intersleader alleging
that he had in his hande 57,060 claimed by the defendante severally,
Anewers vere filed and the cauee referred te a master in chancery,
whe after hearing evidence reported that Morris 4. Jacobeon and
arash Jacobson were entitled to the money, The other defendante,
Prank L. and Careline L. thisehlager, filed objections ehich were
“over-rul ed but, as exeevtions before the ehaneslier, were sustained.
The master's repert wae diwapproved ond it wae decreed that the
“Mhlschlagers were entities te the fund. rom thie Garah Jacobson
‘has appeaied,
The controversy arices out of «a contract for exchange
‘Of properties, There ie very Little dispute as te the fects, Dee
fendant Merris Jacobson purchased the tb ilding in question in
Septenbor, 1922, It eonsicted of twenty-one Slate above the base~
ment and two flste ef five and four reoms, respectively, in the
| Damement. The five room flat was ¢complete<, and Jaeobaon testified ;
tat the construction of the four room flat had been started when he-
| the buliding; that the rough pluubing was in, "the layout was)
* end part of the partitions were in, On Karen 1, 1923, the
_ ange. rere A Ma EA,
ere 0 HOO We
Bea eats Suds tap ate tire w®
7 ae ia AD, 9! agi nite .
yeaa sible te Pid wht Bw eI eeewanilir ite! pat
| .eetwteede atestae'tos any yo bemlete O80/00 ehiad ahd ait had = fs
eeGnweds af Teteest a ot Bentetor ommey BHF hal! wetht oto ven
Hae agedioal . aber ot ean! berroqot sa 100 in ind
Shietoe'tad tanto out pain eae ae be CORES WoW toe ddoul
Stow bre ens tvumyse bed yaya sine tan Lt) oantieae a
-beatermie oxen Wolken iets ent saunas veiereaet he a ve *
ee JE heh herertvnnts aw tte é'o*node
ee ee ee ee)
waned aad seri adn 7
ons, ak sttovicnegess | semogt met Baa a9)
patthtent aondanat, Loe hot tqaeo wew gal ae
msl nai bodega mood had Galt wot Tet we to aolite
aw Swoynt ene* yak aaw gabdumtey agubt oe fost
oat “e ot Meme at ?— one — 4 td to.
vy
Wh
Bhlechlagere se parties of the first part ond the Jaeobsons as
parties of the second part, entered inte a contract for the exe
ghange of real estate, which seong other things contained this
prevision:
"Party of the second part agrees te camolete a four reem
flat now in course of conatrustion eat a price of $2,000
in addition to $115,000 aforesnid. Gald 32,000 to be
placed in escrow, enid escrovee to be agreed won betveen
parties hereto at close of donl., Gaidseserowee to pay said
gum of 92,000 te the party of the second part wher said flat
de completed and all waivers delivered to said seserowee,*
The eserewes chosen was Isidore wried, the compiaine
ent. At the date of the contract the rough plumbing ond rough
Plaster of the four room flat were completed, the partitions and
the floors, except a hardwood fleor, were in; there remained to
be done the hardwoed fleor, the hard finish plaster, inetaliing
Plumbing fixtures on4 elestric Lights,
The master found that fmecdiately after signing the
tontract the Jagobeons proceedat te eomplete the four reom flat
an4 paid all the bilie for the work end seeured waivers of lien,
The work wae complete about April 15, 1925, and a few dars there-
after Jacobson notified Ehleckinger that the flat wee coupleted
Qn4 requested that the $2,000 left in eserew be paid te hin,
The Bhischlagerea made no ebfection to the work except ae te the
Kind of glase in the basement windows, ro. Bhisehlager wanted
@lear inetesd of frosted windows, and Jacobson agreed to and did
Bake the change within a few days. ‘the master found that Jacobson
Rad delivered to Fried, the escrowee, receipted bills and waivers
of lien from contractors and moterialmen and that no claim for
Unpaid material or labor bill er lien kad been made,
| The Bhlechlagers claimed in their snewer that Jseebean
“444 not get the work approved by the Building and Health Depart-
“mente ef the City of Chieago, which had refused to allow the
| flats to be cceupied for living purpores, but the master found
i
WOOL wu.
_#e eosedeoant oft ban serqg fort? aed Te ae ttnog aa eroge fitoa Let
eee iit ia
ane wt? tek soartaes 9 adhd Saaogey - » hae dhesinsay te ast
alge fontedune agnids aeaxs sineean hs Rete hres inet to! eonad
i a es roman
dabvane ae ase dogs
TOO ee a ute ames of nopige 2 ‘ai ent Yo ¥2
SOG RE Le: ood @ dm aobipyttanos Mires re
ed of QUE Mee bieeetela a O00. BLLE od ore)
Agee tad woaw: hye tena ga ad aeweeD ns hiaw morn my
hiee yen af sowausad) thee teeth % goute da: '
okt Bhan node drag baa oe sad “Le Pee nga ad! OOO 8 res
* mpwro wane Kian of « apne wd L498 ate Law. he he: todo tenes
aniatense etd phe ike evebeet av nse oifo sawntose ott
depooe hee yokdom ky Hasan ott foaxdooe utd to efab oft SA os
fine, @noksiutag site bode Lewas otow gm? soot teat od tonne:
2 te abeseas ecads sak oun acer hoowstad a” ie me | ereort er
yet tattered * yheeenee debt reed oo pewell beewktad olf omob ib
: <02Qil ebttoede dng aemiexl? y
! i a ita te ylota deo Seutt Hamed aetna wee oy aa
‘hese nee casoh meld ode ToROD OF HebeNeORE MOET ona oot tem) Dn
Cae bt cP emevdaw Rercoen Nee abioe ead Cot witht weds Lone tae bh
PtH CERN HOT wah BREE 22 Ling. deeda Dade Lemma: wale drome |
Kae RET caw pee ot Peutt royal Lee LM delta — rk
| Site oa Bbq Ge wotmes) abt red eng momdd caste 4
i ang of ad Faience <tad oa 6) mobos tee om sham emey a i uf
beotawe twyelioeiak .ath ewobnle tnomeaed ond at asaty to a
WES Rat o@ Bebe d mhedeai ail erehntw fotos he: kaw ewih
“fedndet deed wone't womenes watt Saaenicbennaimmnasen:
wae atte ite w tthe Hey heww. geinceenadnne: ena Fe
tah cae gat-tesio Sige neat un gue. We
‘soavone’ ‘dwatt teween atk omnia anentintot
eget aC gntel tetsu iensisuelnses whe
etd okie oF been ven Rest wo brie open keh. %
\ tare’s ew dmaae lt tart seecune atvAt 03
i
and concluded that Jacobson “ns not required by bis contract to
get the vork approved by the Nuilding or Health Departwents
and 414 not agree to obtain pormitw Trem the City of Chieage. the
master found that the Jaeobeone bad completed the four room Slat
im compliance with their contract agreement, and that they were
entitled to reeeive the $2,000 held in eserow and recommended the
entry of a decree in seoeordonce with much findings end conclusions.
It is argued here that JTaeobeon was bound by the con-
tract to preeure the pereitea and cartifioates from the Gity of
Ghieags. Tt fe said thet the chaneslier was of this eninion in
4eorecing againet the Jaecheone, We are of the epinion that the
Gonclusions of the master in thie reseeet were proper. The eply
Gondition named in the contract wae the cewpletion ef the werk
Slready started in the four reom flat. If fapnet denied thet the
Jacodeons did this. Hewhere in the contract is there any »revision
or obligation upen the Jacobeons te procure perulte or certifleates
from the City.
it is atrongly argue4 thet the contract is invalid on
the ground that it contemplated a violation of the buliding ordl-
Renees of the city. The M@ilechlagers are not in a position te
Question the validity of the contraet. They do not offer to ree
turn the property they heve received nor to put the parties back
into their original pesttions, In effect, their claim is that they
are entitled to retain ali the benefite of their contract witheut
Paying for the work fone om the four room flat.
A further eensideration sunserting our conclusion ta
that none of the work which remained to be done when the contract
ef exchange was made and which was subsequently done by the Jucobsons
Was in violation of any of the city ordinances, ‘he floors, plume
ing ana Lighting fixtures and hard finish plaster added by the
Jaccbsons were all in compliance with the elty ordinances. A elty
is ‘
ot Hates abd ef bendapes tem oe momd gma, dealt nnactonen, bp
tinentisged dee! so gabhd ied aie yt beveroas. dew oat, $9
ent ogee th Le (dake mad sett addon miadde of setae 2 om nab a
dak ager too’ odd tadetuxer had emondgen’ may, ica ;
iii abet aanis fe: a herierae tee SB Pats a
aid bob seemoget ‘ine aera au Siewt 0,08 eid shih ’ in fi : ten
- sin tom fone wate ound att oun sch he com banaDe ‘ak a ne ie
avo> and Yd homed way mondonel dete ioeed Bereta nd Ad: 2a fl
RG GERD alt amet Be rewe bee Renee bene ee ae: ot tort
at woking C208 Ye eae VARReomwede one ger ob tew oh senegal
ot $08) aotatos way tn exe eT. yemoddonal eddy. suaeneenns
esan aut regres BHO Ramee, Wet ob teheam ond, ‘to, 3
ee ee ie ee ee vat daca nok
ote Pea? tolase deeded Of cdot? eeomemet eae. oh betwee sided
abielrowy ye woe of PoatineH Ad mb oNncwal aks DD
werkt Meee Ke ahineog stgeetg: oF, soniaianiin lt) ang noite
‘ee Sapenabws Seeetane eat fade Sewea, ctosentn at 1th. me ce aa
alive @aik ited af ko melgatoky a. tS sasht: 94
of mitieny 2 at ton wee waegetaiomds — eneonae
att Be wore Fon ob yest od tre abn ptt te. Btthdtor, ®
‘text seltrtag cob deg oo tote howhenen omni ‘wilt setnnainast ve
yey dyelt wb etete: ated foes ah geno khbeag veannaaiithi y
Seon iy Caine eet te ee Pine alt De mhaeon: ‘et be baheg
pte away cet welt co gman ttew pat ag am nd
wi woledtoase Yee waibeerionent: ini dSeerent ta anit eR ie
teatdnee sad ‘ioietw swab ot a Poa bascere eda, xan id) 10 820
sasedaoat odd YW SHO VEPROupOedwR aw. Kaden des wham eae onnes
atively ,etdett ext lneodwithte iis ‘ode ergae esauaettae:
ont vd Sebhe oten £e Ho kete. merase: 29 Lang t §
vile A webdnatbae ‘vite “ied ae oenienk cee ak Ol
“dnepector testi fie? that the Tiat 414 net conform to the ordinances
in the 4istance between the floer and the ceiling and the eige ar
the rooms, These conditions net only existed at the time Jaeobeon
bought the building but sleo at the time the Ghisehlageres examined
the buil¢cing and entered inte the contract. Tha Uhl sehlagere knew
the aise of the reoms and the height ef the ealling fully as well ae
id the Jacebeons, wo that if there was any wislation in these pare
ticulars, the Ehlechlagere are as cuch chargeakle with knowledge
ef the facte ag were the Jacobsone,
It hae been held in many eases that, if the work is
fene in complianee with the sontrect of amployment, the scentraeteor
is emtitied te his compenention althoug the work when finished may
Mot meet the approval of the public authorities. Fox v. Rogers,
271 Hass. 546; Kiehvel vy. Bacon, 49 Me. 474; Mood v, Casserleigh,
97 Am. St, Rep. 136; Barry vy. Capen, 152 Kags, 09; Dunlop vy, Keregor,
156 Fea. 545; Howard vy. Lethy, 197 Ey. 324; Morse vy. Waurer, 35 Pa.
Sup. Ct. 196,
Im some miner detaile the work fone by Jacobeom Le
@riticized, tut we agree with the cenclusten of the manter that
there was a substantial compl iamce with the contrast and that under
ites terme the Jacobsona were entitied to the oun held in esorew by
Priea,
The deorse of tha vhaneslior is therefore reversed and
the cause remanded with directions to enter a decree in accordance
With the conclusions and recommendations of the Kaster in weer
and in secerdance with what we have suid in thie opinion,
REVERSED AND REWALIRD
@ITH DIARCTIONS,
‘Matchett and Johnston, 37., concur.
es dann PY ol hh 1) a te 8 Pte? etry Wy Ue OP ANE RT oat > Rm yes IES | a TTR eV ga
aera athae ad? of arto'taoe ten bop. dade okt tats ain amet
to use ont baa grtlion ast daw amokk wait sawvaed avaagel® with i
apedeost omit a2 to hedadee Vide dae mma timoe ened? hoot
Pemmbracae. aiey2 ketowcate add aaht act te wate dew wend LBant ede of
wom exeqn Lion tds ptt .Swettice pak) weak pow dete ram tht
we flow eo vite aublien. ond te seghesd aay pate snot ont Yo ote
“wh plgdt at selde kote yon wnw, mmo ThA, seat fia Doscseboncdusinn
Oudetwond we ke elieay ede Mom me, oe ems wi odd ,otetue!
| : ‘sOneepnl tty eeaxnevanvad sled
wt stow old Cb ane, von yom Bt Siler seed) gee Phy) co.
Notamrties est tonnyodgoe bo soaetion eas cede von bsesen at ou
ann herebalt ae ate ahnow ad? cgeomttde selbieoaagaso: abd:
HeObe ts anita oliduyg eas ‘to fare
ee ae
oh mundogeh Gd sank Hot at mhod nente omen AT,
fee dane 8th Le uMbeaConne, ond, xa be emenn ww Su gmt 3
Tohrm Pass hee dowrdaen one sei
— nh vesdagi one spent ports : “emetenignos: este:
S aiiilinds eet sat ar ta ae ne
nied 5, set ORR sits wi pally Mm sii
eae OR Erte E Re F ay yy. eae:
RMR se aE RO EAS UML, 2d aie Ny vi i '
mt ey ae Canine
A’ i
rn ‘ the a
i AG RE I OES AER iar Sr: i
ae
P tenmliatinn' ape seis Tig FR aD Re FE Te oot Dai:
Be se Mal edasi lalla
jas gee ie Ae a Wi mae gel 3
458 ~ 31587
PROPLE OF THR STATS OF ILLINOTS
ex rel. NAPOLEON SINENAS,
Apoelive,
: APPRAL FROM SUPSRIORN COURT
VB.
OF COOK CoUnTY.
CITY GF CHICAGO e#t al.,
Appellants.
Op A ry i /%, D Nal =<
bes a “t Lolleo VOWPD
BR, PRESIDING JVUSTICR MeSURGELY
DELIVERED THES OPINIQR OF THE Comr,
By hie petition the relator sought a writ of mandanys
te compel the respontente te grant him a beverage license far 3438
Bmerald avenue in the city of Chicage, fer which application had
been made and refused. Resyandents enewered denying that relater
Was a person of goed moral character and reputation, ond asserting
that on January 1¢, 1996, the police officers of the City of Ghicago
found scatrones on the premises 4rinting moonshine liquor vhi¢h was
kent on the presises for sale, After hearing evidence, the court
@ranted the writ of mandacus ordering a license to be iesued, from
which order defendants appeal, The relator dees not appear to
defend the order.
The testimony shows that on January 10, 1926, police
officers entered the premises of the relater and found same men
with the relator drinking liquer., another officer testified that
he made an investigation ond foun? the relater had been arrested
for violating the Lew forbidding the sale of liquor. It alse
eppeare that at one time relator's wife had him arrested,
Aes the evidenae clearly estubliehed that the patitioner
had violated the law and that his former license had therefore been
‘Pevoke4, we cannot any it wae an abuse of 4iseretion for the
‘Peapondents to deny the iesuance of a license, A municipality
| Ri na
{© fantitar to) ost owe
: Hae Te
PYG KOLAR BONE LATIA., ae, '
Css ee oP ‘Sa a Pa S's by 4) Hy ' ‘bi aye oy wi : sig " i
ip EE BO EQ. ve saga
. te ‘euausio @”
OM pet aes iaioatr eam call . Setabibidehs as! Pe ee ad iy aur aoe
" oc y “grey ie h er. RP) lb Metin ai atria
minis war rit ae a ee
Sade wer cd latiratad “et emaatvre web nine ea oe
AR Sree A UY Ra a a we o ‘ aber ' ‘di ii ‘)
exmpbaan ted eo tetgeron entens: pete | alien ee
Bean. matt ganna ts, auetered waht 3807p. ot etaghavgs
hawt avsiso tinge mp isw ret ,agaedcy te cee ody, a0
antigens: eels — donovens. itimmrigns ty
mest ~hewand af od nein & gran ye em
‘eo Sac 990 Keeh ihc ian, an # we
eotloy ,@#2¢k , Oh Ciuarae ao Saely eves vaetent ont '
tee come Sauut dae totason add Yo. noe heotg, uh iil :
Jase QO Lt iamsd aor tte wecltomd .voupes gots
nak Oy v a a}.
tend etoterods hus onneots soul’ ‘ey be ad vi wi
Goo Ley bey Lotus a anak s te meena nie
@annot be compelled te grant a license where a former license hag
been revoked for good cause. Harrison v. People, 121 Tli. App. 129.
The relator's testimony as te citizenship is indefi-
nite and wnreliable. He claims to have made applicatioa, but
could not get his second pavers because he could net rememher
either when or the boat on which he came te thie country.
Tt hae been reveatecdly held that the writ of mendenus
Will not issue unless the petitioner shows a clear and legal right
to it, and that it is the ‘uty of the party againet whem the writ
fe seucht te 46 the net whieh the petitioner seeks te hare per-
formed. Eeople ox rel. Kann
Byildings, 320 11. 117,
in view of the evidence as to the vielation of the
liquer law, petitioner hae noi sewn wm clear lagel right to the
writ of mandaxus, ad the order avarding it is reversed and the
Cause remanded,
REVERSED AND REMANDED.
Batehett and Johnaton, JJ., concur.
AgRHures kato od ste fal otsw no teod ent to el
invalids he oben ost heated gon enna he | food ans 3 :
fiyix Legel tue tanto a evade monn ishtem ot, ane Lee
stew edt mol” tanteoye yoaeq ald to Yun oMt os #3 tuists ane at a
one sent of ailoow sainiaeaelia daeitindbsaiiad ois ible
He ide ah: puanintes Me hee er _% ae yee
gd? No apbowkedy ett oo ye opewbtye wad “te Wel AR O°!
sit ot Srigbx Sayed Woe te ao wwelte Gon Gna SOMMEd ti
Rie Roe Darter! eR ORE I aan OMe baw |
PN AM Bea) a aC uy
Bae wen haai.d Ta
si <rhee att
sniiaaue) mes Pe ee aut
wah ii oreo shee ote:
sani cauianl aeuah ieugiu/ilii als Hel os aged aise ws + ane
OR CM ets SRR iis ale I HY i ‘i . boats iad bis » ea
Pie ae BERN Sevoat od We. ahh MR aR sii Nebo 0 seo Aka tone. iv i)
dE SPae we Reed Male Dies: Ri untae ES na
PEE: RR hist Be wee | ate ‘i ‘i nit A ‘al nia een a
Ce eae a Oe sae oe bait pi ah ne epee wean
Mp Ne me iis cane Bs qlee ee ae ea auc auld weet: en, aasebe
466 - %1629
H, L, V8TTS
Complainant, |
v8.
WILLIAM H, BROWER et al.,
Defendants.
GERALD D. O'SEIL,
Pisintiff in Brror,
BRROR TO CIRCHET COURT OF
vs.
EMNET J, CLEARY et al.,
Defendants in Mrroer.
COOK COUNTY.
ne A eer Moet ee Maa
SG = f y Nicaea ie fi 2 =~
PAAT.A. 625'
4 4 a h- ») Sy
rE hm GL EC Peery C2
. BR, PRESIDING JUSTICH MeStRELY
DELIVERED THR OPINION GF THE COURT.
Plaintiif in error, Gerald D. O'Neil, seeks to re-
vorse a forecicaure deores, the order of the Circuit court refusing
te allow hic te file a petition for a bill of review, and also the
order issuing a writ of assistance for the prawises against him and
in favor of Emmet J, Cleary.
The writ of ervor was originally sued out of the Sue
preme court, which held that, as o freshold was not involved, it
had no jurisdiction and tranaferres the cause to this court. in
324 I11., page 40, is the opinion ao holding, whieh recites the
Pleadings and orders entered in the case. It is unnecessary to
Tepeat these here,
Plaintiff in error asserts the right of review of the
foreclosure deeree on the ground that the record shows that he was a
Receseary party in interest whe was not made a party defendant by
Complainant's bill, Thie assertion of interest is based upon an
| @aended eroee-bill filed by George ¥. O'Neil, which among other
‘things alleged that the presises in question were on June 11, 1921,
an
we
ath tat wind va
8 BOO TRHOAIO OF MORE
ott
Le te te rakitio ¢ ewan
ROXIE AE adngbag ed. : te ,
t
3 a ; ani ‘ae’ PE “
+ ns he Hay ; bh, rm i Ea ae nh
Ge G ey Aa a & n i
Rae worters omteraeet | eh aa”
09 mer tD norxrT0 mee iaierdide® “a8 si ,
“ay Ra : bara Me ca wad Ye Rae Rive Hann
mts 2 oiane | «Aamo - o Lewn, aterm ak, Ti teaba eh “ “eg
gator tem oaua9, tivarto ostd, tn meabeo ost 4 PO TOO |
ent enka fee ,Welives te ifif os a9? aolditeq # ettt anim
RRA 7}
~w ono ‘Le tee hewa mere ee? naw sorte “ a daw ont ,
th .bewkoval fom naw biadeost a an ,fodt ibd co kdw ,duwoo |
ad .3xyeo ahi ot oasee act hewxehanety bas motte the ryt on
os Sevioex Sedkw ,gaihdok o@ aolnigo ost ab 0b opagq 1 AEE OB
Ov (tagesoenaw al fh ome eis ot Sorotem areht9 baw
sewedt pe)
oft to wetvet Yo tight ast efteene torte at ThesateLt
& eaw oo tel? ewese hrownt et dodt owong amd, ao HOTOOD omee
ud trobas'teh Yue e whew toa Bee oilw teonooat wh A dann
ast noqy Deaad at daptetak Yo voliissaw whet. Renteniali
tee gionn soidw fel ® .8 agtpa® xo hotly CEeden
i802 Lf enol mo oxew mottuoup ak wonhowet' ious tout tints
which was five daye before the filing of complainant's bill, eon-
veyed to Gerald D, O'Keil, then o miner, and others. So anewer to
this amended ercee-bill ia in the record, It appears that submee
quently evidence was heard in support of and in opposition to it,
and it wae dismisses fork want of equity. Ho evidence ins in the
Pecord. Ye must therefore aseume that 14 was not vreven that
Gerald DBD. O'Neil had any interest in the premises,
Even if plaintifY in error was « proper perty te the
foreclosure und not made «a party, he oannet complain of a deerea
which doee not affect whatever interest he may have in the premi-
@ee, The decree ie valid an to the partiaw to the anit. Pope
v. North, 33 111. 441; Walker v. Warner, 179 Tl, 16; Clerk v.
Zaleski, 268 I11. 427; People vy. Bvans, 262 U1. 235.
A final resson adverse to plaintifi's maintenance of
this writ of error is that it was sued eut three years, t¥o monthe
end some days after the decree was emtered, which is well past the
Statutory limitation of two yours. Practice Act, chpater 110, sea-
tion 117, Illinois Statutes,
We cannot veview the agtion of the court in denying
Plaintiff's motion fer leave to file « bill of review, for the cone
‘Rents of neither the motion ner the petition are disclosed by the
record,
After hearing the court fouid that George ¥. O'Neil
@nd Gerald D. O'Neil, "parties defendant to seid suit or parties
whe have come into possession ef said premises pending said suit,
er under or through the parties thereto, were in possession of gaid
premises" end refused to eurrender the sane, and ordered the writ of
© sepigtence to issue. As George ¥. O'#eil was a party to the fore-
Glosure proeecding, ve must assume that the court found that Gerad
D, O'Neil was a party who had come into possession of the premises
the suit, or under or through the parties thereto. There
od tewede of .aveiio bas «Honda eos tte. le Abe 8 ites ous
| ~ondwe test oxnegge 3% «brocex ott oh wh any hebagge. alt
,th of smeitizouge at hae to tteveue at brew sar nnant typ ioe
amt mk at coneh hve eit vad lope ‘ta taew tot’ ‘pate bine tb ant tt fa
aa
He ’
turks mevony Jan naw tt das CECE) orotexend seam,
pea taata ott a guotadal All Bad ‘Hed?o a btore
aut of item, ‘Ber A mare torts ak rinsing ut engi eb
od
A
ohne oa) al evad an wil jaoxstat ‘wentase , teerte son toot ions
aga veh dve, 9s 2 astdreg eit of ga biley af ontseh out at
o¥ Btelo 594 pared erg W uy seusa pipe” eet te seat i
j ose oti all ‘ 4 ive. | ,
28 ALL meta, tpn sO pienso 20 met oa L ar ane
rieuied® adoaRlld VEE m9
patios ah damage ons Yo sobtog ost walves toaqag 9%
Ha, EF, AE OLE AH AIS 4 942%, of wand 50% MOH On ALT ta
tilt yf Soweloath gum apivtion ot com mation ot tote te, 2e.eene
r SES REY IRR BE Ag BR etree
“Aout i” awk: snus » oamer $ twee. nee at avantbew, ;
welitod to tive ting of tanhue'tah we bieng” of hnilt 9 fh phone he
_ af ine. bdaa Si aon a soa henng. bhaw, Le UPN A mm, oat
¥ baa to Rolnsons og ae orew , Si ial
‘ta fiw att detebre bas ene out, ‘tat
| oro eat of ime # gow “Etewo 4 A r mated the
| bared taste hao rup0 ee fast
; 4 pho dtc Seri, Sait
‘
n
ry Or n
+ No to |
han knee ose ‘ve aolanesnog aenn i ba , y mee,
eves? voferedt snksumg ocd Ayaroait se, sobnw + 0 the ont 3a
r nothing in the record which contradicts this, It does not avail
4 ) say that this is contradicted by the allegations of George
“O'Neill's acended cross-bill which was 41 amissed,
4 | Plaintiff in error presents no substantial reason for
ng ne decree and orders of the Cireuit court, and they are
AFFIRMED,
t and Jehnoton, J7., concur.
ANN
be ain 8
Ves
Pig a)! pa ,
i, tition ii
” ms ion a
Ba srlahi ea
ed) AEE
ee hi
be st TEA | ROL
i te Wht
ah)
A
Hi wate atnate ohh mang
i
f
45 + ‘1187
GCHICAGS TITLE A&A TRUST COMPANY, }
Appellee,
re APPUAL FROM CIRCE? COMRT
va.
“WILWA 3, HYKES et a2.
(Om Appeal of URS. VANATR BURTOH
et
ames Appeliante. a q 4. TA @ 6 o 6
OF COOK SomNTY,
BR, JUSTICE JOHNSTON MELIVERED HE OPTERON OF THR coDAT.
4 This de = petition filed by the Chicago Title and
‘Trust Company, trustee wider tae will of William J, Hynes, de-
oneeea, to have the will construed.
The will censiaies of 17 eleuees, There is noe aiepute
regar’ to the provisions in the firet ten clauses, The firet
direets that the febte and runeral ‘expenses be paid. The
» third, fourth, fifth, sixth, seventh, eighth and ninth
Fovide Yor the payment of specific beaquents, ali ef wich have
, ) i pala. The tenth consists of a bequest to the wife of the
- There ie no diepute aa to this clause, but cortein
in the clause is diseussed by counsel) in connection with
th @lauses in controversy, ‘The actual controversy soneerns only
in ; eleventh, twelfth, thirtemth, fourteenth and sixteenth clauses.
| The pertinent parte ef the will are ae foellowe:
| “Tenth: After the payment of the foregoing spectfie Lega
ape devise snd bequeath all the reat and rasidue of my
; "Fenn so’ and mixed, of every Kind ond nature, to
® Hynes, for the period of her uotural life, for
‘ el benefit éuring her Life.
4 After the death of my enid wife, it iv my will
ry ek an ae I now own at Ko. 29% Aldebaren Canal,
Lo and the rents and profits therso?, shall
ey my adopted daughter, Wilme J, lynee, ror
nefit until whe is thirty (86) years of age, and
the nals ve until that age then the enee shall veet in her
or, and if ane shall 4i4, witheut issue, before attaining thet
ne Pevatod “gpa above deni giated wn then beaowe a part
ap fire age the death of my sald wife, it te my will thet
’ (866,000.00) Vollare, or or from aaiA eetate shall
‘pp ue eye) ath ~— a vere
TERE FH ee
560 " s Tk BS is te ‘ hea
odngnd te: ort wd ered Ba
sank nt. “emeinne fo age, saat “ae oi ote boone ah
ast Pleg we aseanaxe farm haem ation wnt dais
ated bia Hoiade shh oavan ite le OPE Mis
oat “ap hee Ne te Ae aesrpod gy) l teeae te te ”
ade +o athe ont ae tapped # 29 age tvaon.
ntateoe aud nig tn his oe ae otureo 8 on a |
mer wo} t9nanns ak fon aoe bis pesavestd on :
ik aithente gar me one %
# “e saa tt
hes *
sci Serta me shed ne
be set aside for wy adopted daughter, Wilma J, Hynes, to be held
in Trust for her use ond benefit witil she te Thirty (30) yours
‘oF age, and if she shall live watil that age, them to be paid
over to her; and if ashe sell die before that age, aald dixty
Thousand ($60,600.00) Deliors shall then become a vart of my
‘yesiduary estate; and f hereby appoint the Roman Gathelie
Bishop, residing at Low Angeles, Galifernin, Guardian and
Trustee of the person and estate ef the asid Yilma J. ifynes,
and will and direet that the aid Wilma 7, Hyner ahall reesive,
after the death of my said wife, from audd Guardian and Trustee,
the income from said Sixty Thousand ($60,000.00) Dellare, wmtil
She attains the age ef Thirty (8) yeere, when the “pele ef eafa
truet fund of Gixty Yhousand (166 000, oof Dollurs, shall he pata
ever to her aa aforesaid,
"In consideration for the asguoption of the sa14 trust and
the performance of the said services as Guardion snd Trustee by
the said Roman Cutholic Bishop rugiding in Lon Angeles, Cali-
fornia, Ton Thousand ($20,000.06) Doliava shail bo eet aeide from
my enid eatate upon the deat of my eaid wile, the ineome of which
®we aheall go to the eaid Homan Catholic Bishan wotil the death of
4 Wilma J. Hynes, if she should die belore ihe age of Thirty
$0) years, or until the payment to hor of said Ginty Thousand
$60,000.00) Dellare at the age of Thirty (860) years, if she
. shall live te that age, and after the tereination of asid Guardians
ship and Trusteeship, either by the death or by attainment of the
age of Thirty i320) years of eald Wilma J, liynes, then the ews of
Ten Thousand ($10,000.00) Doliure shell beeowe the property of
Said Homan Catholic Bishop of Loe Angelen, California, and absoe
lutely veet in him se hia evn.
rteenth: I further will and bequeath that after the
th of my said wife, Ten Thousand ($10,000.00) Dellers aall
be set aide from my anid eetate, the income rom vhich ewe shail
be paid to my adopted won, Harry Hynes, of Chieage, Uilineis, in
bly er quarterly vaynentse, in such manner as sy Axeeuter shal
best, @uring the period of bis naturel Life, 4 upen bie
death salt gum of Ten Taousand ($20,000.00) Dellare shall beoome
® part of my reeiduary eetate; e214 income Srow oaid sum ehall
Ret be aneignable, in whole or im part, by seid orry Wyner.
"“VYourteenth: After the death of my sald wife, it ie my will
That the inceme from my said entate left for life to my sald wife,
Pemaining after the provietona of Sections Twel sth snd Thirteenth
ef this instrument are complied with and eatiefied, shall be date
vided as follows:
“i *1A" Gneesixth (1/6) of the residue of said inaome shall go
to Katherine and laura Cottrell, children of my wife's deceaned
Sister, kre, Kary Cottrell, ware and shure alike, during their
life,
if SB? Oneesixth (1/6) of the residue of said income shall go
Mrs. Annie Webster, cf Los Angeles, Culifernia, my wife's
Bi ster, during her natural life,
*'¢* Oneesixth (1/6) of the residue of said inceme eneli
» to wife's sister, Hre. Yennie burten of Chicago, Lllineis,
a her natural life, and after her death to her husband, and
her children, or the survivers or surviver of them, during
ge Lives or life.
«9D Oneesixth (1/6) of the residue of said income shall
to my wife's sister, Mre, oer BR. Bvane of Les Angeles,
» during her natural Life. !
i "hat "enesed ssn (2/6) of the residue of sald income shall go
y niece, ire, Hinnie Harvey, of Norwioh, Connecticut, to be
ld in Trust, however, by my Executor, hereinefter named, and
Ancome shall be paid to her at the rate of Firty ($50.00)
e/a ow
Any
Oe
“tied ef at ,aose! oh amki¥ ,tedcyueh Seteohs wa tot obiee 400
< imtaaaey, AR Og )* sede Last wt one Lites PP ieowed baw eae teal tod deuxt a
hun of oF mudd ,oyo fade Dita eeti Llode ace CE bem ae
yeele Khas ,eye (ase win iad odh Siva ote “US tae -
Ur te seq & wenger west Ehade wre dso (00.000, 008) baseneat
otieteeD tomod sie tate ytored L bre qetadee ciekb haan
hae aged bteyd gp ge eo ingek won fe. ager el. rote
eng »G geek b ot to niet bom doo ‘if 19 soften
ovlever theca wom .. aah blew at torte peers he
aosare! bw oallian® bine anit ,e'liw ddee yen te -ddeod ond
tbe es, pee Let (60,000,008) bnaavodt yenlt biae moet emount es
bien te whete ad? norte ee ous 4G ; yet id? Te won ott outeha: cr
bing of (Lerm .eee fiat (eo. 030, 088) droawed? GiRk® te anne “°
Piametokse ae tes |
bea geet? Shoe ¢ae to aoitquarew at? 16% ey doo
4e eatniet Sun cHtbungs Ga BooteiBS Kies ord “Le enmtet® wd
«Ried ,o*iegud aot af gulbleor qotatt of Londad Ame new |
moet abiae. fen od iLade aerseiiog fed, LG ) hepowont aet pod
te icte ‘ko ogo apie erie f lee ys te Meaeh end Bog rags hh
‘to dteph ofd iter aerial oliodteas nameh bhes ed) of oy
yet? 2e age ot eels? BIS BKyvede wile t2> rere a
boaayged? ysis blaw to tod et fueaneg odd Lisa eo yw
ede “th yormey (86) yor ial Yo ege oak Ja wel ied "dosed
-mibtayi blas to caisaniuted sai2 anette bas pega Saad ad evel 1 Naa
ot te Gaemiintes yo xo ctweh oct ed a ,ticeodiaus? baw |
to nue od wend aso .& amli¥ Adee Lo ereey es yseiel te
‘te ytwqerg wit vecmed Lieta wen) Lott iv a, S0) dower oat
ooede how yo harcot b1a0 482. 1 git aed ‘to qedeld » Ppp dng heme h &
samy wl wk ald ‘al? Year %
att wet2 Bost? Sdaowped bas LLiw tedecn't 2 siemoede sey.
Siar wind Loft (UFR COR, 0 } hana? re! L,Y piss de Ye .
Siento oye se ddo worl savoat ott ,eradoe hae yt cont ebiae ona
me ethoal le ,*gan is Be wert yxkat coe Redyeha Ye a7 how
Slade tolvoon% yo on Younes deve a) , ad nemyae prnaryee | to %
eit ao five gpwhlh Leweant 2 bd te Seiten oak oe. lth ,
esoned Liedte etc Sle (00,090,046) Beenwon? met te ae i *
Lien mow & bao ioet'? eemeal Klaw {edatne Wiawhieed em tor ee
288 4 yrtch bier yd , tng wh te afore at pbldanpiogn od
Coker cea ak bs ya't bet We zae “ea te Kewae ple vette” seeat tot”
et tho Bhoe ga of eke vet Sef otadom bine cet Wert emogas
Asrmesehat day 22% fo? wx t Moeh Yo anole iverd ant tombe He
oth ed Links be fielbtow tam veiw Ke temo Caom prmecstee
‘es itase amped Kine te ovblect edd ‘to (a\e} een tacuuae ware.
berngoeh atotin qu Ya oeehitds Yi tertto) atend See erie
teat gant such seHiLe wuacin bas atads »tiowtaay A Sil peek gets
~~ Lhasa. pawn dd: bbe Leet tao: ORS ‘te (ec) iekausae
ree ites ont ait Ku pekarabnses le aga wed by tetadelt ® Dyas
aoe Ls 4 Leridac toe eet
{Lady eumooat blee te oubtesw: eid to (ONL) sor lene
sthoutlak yogen ta to gare a hoaeG dichal pee te
fener ees smal we eh be wogte hae, ; vo Ki
eas
hase. penta tod bia: “7 ‘amaient: ear te (8
: cnn feaan Bank te mee ehaveso) ,e2a 24
AQ REE, Leow,
ee Khare. rooms biae: ‘te woddany aE Weel
oF at {twolteoune? ,geiwsel Yeo ywertal
ba Me hee «hos. to Pte howe, wediacat qa we
NA 0G) ett’ "to ate oad 20 Hoe ad:
Dellare per month during her natural Life.
"In the event that said income exeecds anifé monthly slier-
anee above provided, it is my will thet such aceumulations, at the
death of eald Mra. Minnie “arvey, shall become a part of my residue
ary estate.
*'¥' Gneesixth (1/6) of the reaidue of seid income shall
go to my niece, Ure, Addie Suith, during ner natural Life.
"It is my “111 that distribution of the inoome to the
parties provided for in thin Geetion Feurtemth shail be made
quarterly if practicable, ewaept az etherwise stated. **#
Sixteenth: I will and direet that after the death of ay
wife, and of the legatees, whe are designated herein to receive
the incone of my said estate after the death of my sald wife,
@uring their natural lives reapeactively, abl of my estate, and all
ef my residuary estate ahwll, a6 the wame ehali agerue by the
death of any of the parties sentioned above, go te the Cathelie
Bishop of Chicage, a corperation, ecle, as Trustes, te be paid
over by him, share ami share alike, to the Saint Mary's Training
Scheol at Feehanvilie, Lilineis, snd te the Gatholie Guurch Exw
tension Seciety of the United States of Ameriea, a corporation,
organized wider the lows of the State of Michigan, and ta the
Visitation and Aid Bociety of Chicage, Illinois, or to the sure
vivore or surviver or successors or auccessor of eaid inatitu-
tione or inetitution.,*
The Chaneelior found, and it fa not disputed by any
of the parties, that the phrase “one-sixth (1/6) of the residue of
Said income," used in the lettered paragraphe A, 2, S, BD, B ond ¥
of clause Yourteenth, ehoulé read “*one»cixth (1/6) of the income of
said residue, *
Wiliiem 7, Hynes died on Kay 7, 1944. After bis death
the following legatecs unter the will died: Jennie KB. Hynes, Barry
Hynes, Annie Yebster, Robert A. Burton and Georgie BP. Bvane, The
Petition alleges “thet by reason of these facts, doubts and differ
meee have arisen and exist between some of the beneficiaries ynder
the Will, and between some of the beneficiaries and your orator, with
Peference to the true and proper construction and interpretation, in-
tent and meaning of the will.*
4 The pertinent parte of the deoree of the Chancellor
are ae follows:
| LY "(m) That the fund of ten thousand dollars ($10,600.00)
held by the trustees under the thirteenth clause of the will for
| the benefit of Harry Hynes, should at once be paid over to the
_ Gatholic Bishop of Chieago, as residuary legatee under the
~‘Bixteenth clause of the will, tegether with all the income ace
-«-« SumMulated thereon from Noveuber 1, 1921, the date of the death
; ‘al Marry Hynes;
f sVTLL fomedem weet genius done tag evs ctet
er eitsaam biee whewaxe oaeodk han feud teow. ode oP”
eat fe \nidaite ineurien Mane fedt Ohh bs wd. Pa pire Bh eae:
ehhooe wt te teeg a emomed Lines o eA oy Bove i
Linde omiink bine te webinars dak te ANE ‘dinte~end . ® i
RIEL Lewkden wos anlows ,td bee a LbSA ek eee enela mayer
ade of sonal wt? “bo met doktedakie 2 Pe yom aie
‘haw od Lieve ddaestaset ain tema wise ak 98t ea ge
tt pedals aebvredso we 2eegae. et biont Soeng 22
we Ye waeok alt rete tare goOeLh Rowe law Tt rAvneedx
gwinies of lnved biiaieoh $20 coe ,sonkeged auld 18 ben,
gbe Shee ae Ve Gee 60s toy etetee bean ee he emo,
kin be Siatee ve te (fe ,¢levisosqnes sevds demtadt thes? ad
ast vd eeisoe Licks wane oo? on , ited etedas /
Obledie> or a dE shat preniagtinend wel rasig ald
i wie Riobail & I re ae i 1m ae i
pate! . é hosed taked ada af aah vege ee ae ee
, i dotHda otLestad aet ae ae qetonsait vekidvnados’ #0 h
ame ogre oe é Pa ba Ng detesh Mee hal weld Te yse sows»
hime 4 te si0t8 alt Vo weed ni Tobaw seston
oe or + i er yeatoh® to ydeto eR bhAvdag, ect |
vitae isn to Squinoewe te hs seaman 2 tevivegs to etowds
“edie: ibaa soem
AS» oh win eet. base o yeu i rere cout * souk
wt nial 9 stneet: ibeth’ [fhe este webct x antenna
oaw “setae bie ‘bam Hine. awte os pte i
sso ‘wi! iy coe vas 0 ateg a ae
; oe
ey
ar errr"
af i are Te smate Sa me
pie att ane Ls ype saalil
ose i
3 SNe 32d Di onan
: en? a yoy!
"(») In the event of the death of Wilma J. Site (formerly
Vilma J. liynes) before reaching the age ov thixty yours, the fund
of wixty thousand dollars (4606 S000 .00) provided under the twell'th
Clause of gaid will, wil. then become payable st once to the
Gathelie Bishop of Chicago ae rewiduary Legatee;
"“(o) That the fund of ten thousand dellare (910,000.00)
ven to the Roman Catholic Bishop residing in Lows Angeles,
alifornia, under the twelfth clauee of the eald will, wihi be
payable to him wren the teratmation of the truat which was
ereated for the banefit of tue anid Pilea J. Hite (formerly
Vilma J, Hynes) under the aald clause.
"(4) That upon the death of Mere, Annie VYebeter, benefie
elary under paregrays B,' one of the aadd ais Lettered para
erarhe ef the ssid fourteenth clause, one-sixth of the pringi«
pal of the fund wider the eaid fourteenth clause veeane payable
to the Catholic Bishop of Chicago ae residuary legates; and
siwllarly upen the death of Bre. deorgle BP, Svanes, beneficlary
under paragragh '', another of the onid efx lettered paragrasghe
of the said fourteenth clause; and se weom the death er deathe
of the benefictary or benefleterios memed in any one or more of
the other enid lettered paragraphs of the wald fourteenth elause;
"(e) That inasmuch as, upen the deatns of the beneficia«~
ries named in any of the Lettered paragrachs of the fourteenth
Glauee of the said will, aliquot parte are set off te the re-
Giduery Legater from the principal ef the fund in the bende of
the trustees, described in the fourteenth clause of the euhd wid
as ‘my gaid entate Left for life te ey ssid «ife, remaining
after the provisions ¢f Sections frelfteh and Tuirteentos ef thas
instrument are complied with ond satiefied,' the share deseribed
in each of the ala Lettered paragraphs of the waid clause as
Yoneesixth (1/6) of the residue of seid income! (moaning thereby
@evixth of the inaome of tae waid renidue't) beeame one-Titth
of the income of the part of the said fund remaining alter the
getting aeide of cneesixth of the aaid fund wpen the death of
Mra, Annie VYebster, one-fourth of the income ef the part af the
@aid fund remaining heft after the satiing agide cY a Iike pro«~
oe ghare of the gald fund upew the death of kre. Georgie
« Svane; and so apon the death ox deuthe of the beneliciary or
beneficiaries mused iu amy one or more of the other said Let«
tered paragraphs of the said fourteeanth clause, *
It is ebviows that ali ef the reoidue of the estate
Witinately wili go to the Catholic Biehep of Chisago. the only
Questions, broadly stated, are whether he ahould raseiva it in
Parte at different times, depanding on certain contingencies; or
Whether he should reosive it ae an entirety at one tiv,
i “ote Cownsei for the defendants Katherine Cottrell, Leura
Sottreit, and other defendants, contends that the proper gonstruee
thon of the will te as foliowas
te,
2 (2) That *** the fund of Tan Thousand Doliare ($20,000)
—~“held by the Trustee wider the thirteenth clause of the will for
the benefit of Harry Hynes upon the death of the latter should
VIVRE LIN (RE rs LO
uN ris!
‘sew aeeo's) SHAY ob awtay to, chao oad te some pag it” Cy
beh “S Ons waits ote agi eed)
a bea ce ee : : fob. .
ont St goKe ts 9 Sage eaheen only t
” [eres 3 DAWee Be |
NG) win ited Raaaioss aed
me bagel wok ab gal ish ene 3
ad fktw .cfiw blak oF Yo yang
me te Bul Be — e ‘te ag
Barnere st} GR .G
«ftpaeit stezade? tiie, da to fan
atte hater iok ata hike wae “te wag * Che ty
whonive 662 Yo Mrakenwon ,enuato wubeie flew
a Like yg po nh Kouede Moveteget bdww Rog sekiy &
haw 3 ied, gadget HA OBOs oe it
qumrined’ apn a 7 % otyren® m
ig Metosrek xia Sivw one ‘te Upton 4 f
adtanh e anh wht wogy os bee penne ty vs hood
hy @tem Yo dae car wl bean a abred bob isaey oT as
5 omens O nvertogs biagreeh aute “2a ge abet here ts
ati T ened bar Do adtewh oe Beg, sree
Aaened yo? 363 ~ ‘ba adden gated peretdek’ ‘ed? a :
«94 gad of The tos wie attag sowphin ,iiie Slee ode
te aluiad act af bat aft Yo faghonizg ers met Saleaed ee ‘ent
Life’ b bas ead Le euvaio ddmewdwet sit at bod bepeeb oo duwad
tombe ~tily how yw of til vot stot seaves hlae |
hdd “ig eee etheY iat SST few? wxe ttoyt te. enoletverg |
geditones gta ont * bet iaktea hw cg dee belie Pate Hg
hed ime Sine ote To wignyemy beteteol x
qetes? saiasom) ‘emoont tlae to aphinay ale 16 |
ai ltoond ehcangs eat Craunhene Pine as Yo daowne
sit eéta galntowst hawt Blee oft te Oeaq et? te ft
‘40 d@eeh ocd seq bavt bine os? to ddeleonne Bo wpe € Be
vd te fiee odd to emoonl edz Le Atisilenae ., toda Sak
wetty OAL 8 To shise galitea ont %edFta Prod yak
eieiess wed ‘Le Gore oes some bet bies ead te wtade ptai
te Uteln Piued esi “ty walianh «a edhe ely ty ‘oir beter
add fdam wale aay to #tax Xo 9a9 Yao o) hee
* sovele dévdadiget blow ote’ *o@
Widnes ‘wile Yo won seee wid tent tude berede ee HERE
bad ont Soyen Bi Yo qedekt wkfortded oilh at by KE ee 0
gd a8 wvtwone HAvonts Wat SedpoiOw wa pending ¢thinerd endthh
ay ;Helpadgnttince alaitien wy Ne Ta ee a :
als eco de Yterhtow ap aa MM erkwwks ‘Siete err
ative {trekisod waltellvaX ednabno'tey wae’ Yele fenced Se
apiretunes tegexre olf fotkt shuasaon ateapnras ‘wate a A
a % ihe Se ene E riled
have fallen into and become part of the truest fund ereated by
the fourteenth elause of the will, or eheul4 be hel’ by the
Bueouter as Trvuetee to be adminiatered by him in seoordance
with the terms of the fourteenth elause of the will,
*(2) That ** im the event of the death of Yilma J. “ite
(formerly Wilma J, lynes) before reaching the age of thirty (30)
years, the fund of Gixty Thousand Dellarea ($66,000) previdea
under Section Twelfth of the will @hall fall inte ond beeome a
part of the trust fund erested by the fourteenth clause of the
said will, or that the said fund of Ginty Thousand Bollare
($66,000) should be held by the exeeuter ae trustee te be
administered by it under and in ageordance with the orovisions
of Geetion Fourteenth of the wili.
“(3) That ** at the death of ire, Annie ®ebeter, beneti-
ciary under paragraph ‘B,' one of the wix Lettered naragraphe ef
Seetion Fourteenth of the will, the ome+aixth portion of the
principal of the fund, the income from whieh had been payable te
Mre. Ammie Webeter during her Lifetime, should resain os pringle
pal of the fund under Section Fourteenth and the income therefrom
should be payable in accordance with the terme ant orevieiene of
said Seetion Fourteenth,
(4) Amd, aimilariy, that upon the death of urea, Georgie
B, Evans, benefieotary under paragragh '3,' one of the six Let.
tered paragrarhs under Section Pourtesnth, to« oneegizth vortiton
of the principal of the fund shewl4 reweain oe principal ef the
fund under eaid Seetion Fourteenth and the ineane therefrom
should be payable under and in accordance with the tema and
Provisions of said Seetion Fourtewnth.
*(5) And #0, alec, woen the death or denthe of the benee
ficiary or benoficiaries named in any one er more of the other
Said Lettered paragravhe of Section Fourteenth until the death
of the last surviver of the said beneficlarios named in Section
Fourteenth, at which time the entire principal of the fund under
Section Fourteenth sheuld basome payable to The Gathealie Mehep
ef Chicago os residuary Legutee,*
We do not agree with the methed of reasoning puraued by
@0uneel in reaching his conclusions, We shalh not state ia detail
@Al of the arguments of counsel, Ye shall endeavor werely to oute
Dine the substance of nix contentions.
e He contends that ainve the teatater, after providing
for the bequest to hie wife in the Tenth clause, usem the phrase
a part of my residuary eatate* in subsequent clouses, the use of
that Phrase “ygresupposes and involves the i¢ea that there was or
should be in existence o residuary estate under the texrma* of the
win "before the death of either Wilma J, Hynes or larry Hynes;"
7 ne } the use of the word “part” implies the exietence of “the
* ef which a thing is te become so part;” that sudk «
me ee nea 3g ma Pho gpectrlbeenag tgp Hide 1
Bs: ore we. Tea ‘a es
ikke wt Yo ome d 3 vas agg ee te 4 ee ee
ere 4%, ankre Ye Beh AAS “th Dieree walt We wa Fe acca ah. kel
(08) yore to lth mY paltoeey ‘grote i Fhe etreny.9
Babiver (000,008) etek tet preg wae
a at i) oan ta 2 oe at ‘Bed
ay Je eaaits $ eheite Be oH
Siok: Saanven? Wwe tw ry ey fe ORS tals “x
“et ad AOtanTt on aS one xt pak ee Reson 4 OF
ino te Reoky Aue at Ww pemebtoone Mk ban soba 1 YC aewede dete:
at hie oat ho 3 te et medgiond
yes redetes awa ere to lndonagh oat te ae
| imnetag Semwtind 248 eat ie ene *,eP
aid te agro Himineaane okt Side Sa
see ca ae saiget ty saan
%
Ses amet wit se eee
Ks
ot one. ete “te ddewoh ‘the ‘doa ‘nas sytietl
ge ae ar gy | “so e ng
biohand On SNS B eiagek aottaal! ts raters
"O88 To Sentnalag ae Winx, hivade, bial ocd a,x tating eit Ne
eoinwnds eeaeds oe fae ase n dee 0, pans aay re
pele wih ate at ke eonek: hh Dee Soho * of biee
a ; Re aides bisa * »
tee oat me
. a ess
ee Aah lo ores Te 9a gall.
tant edd fkece Rhavedengt mien |
tebtnet wf hesaa webrede cheery Don <u 40 tor
By Boot oa? Ue facdonivd wakitae w4e noite fw
an i absoneen vat, oe me ciintn Bera ite Ed
ar.
. coe ne on at
‘é hewmen aabnancdt %6 mitiile’ wile ata do eine a 8, ie ure. 9
ihates ab stein dom fhade RM. eHohalltedan al sii
atae of Gotes Teragtem Lime a
cd Ha i sa % wt
wy at ef pa fi ey )' ay &
7 I . p | A\
hey ¥ , y eee
reaiduary eatate is provided for and defined in clause Yonth in the
Ranguace, “All the rest and residue of my property;” that this is
the first definition of the vhrase "resi duary astata;” that the
“next 4ifinition of a reeiduary eatete” Ls found in clause foure
teenth in the following language, “alter the death of my wife it
ie my will that the income from my estate Left fer Life te my anda
wife remaining after ***; that from these promiaes it follewe that
when Harry Bynes died hie bequest of 210,000 passed to the residue
arty estate defined in clause fourtesnth, becaxe part of that re
Siduary estate, and 414 not go fwmediately te the Gntholia Biehep;
that if Wilma J, Hynes dies before the age of thirty years, ner
Dequest of $60,000 will gase te the rewiduary eetate defined in
Glause fourteenth, will become part of that reaiduary estate, ond
Will not ge immediately to the Gatholio Bishop; that the residuary
@state of clause fourteenth, which by the proviaione ef ehause
Sixteenth, witimately is te go to the Catholic Bishop, will not go
to the Gatholie Biehen until the death of a11 of the Legateos men-
tioned in the lettered paragraphs A, B, C, 0, © ant F of clause
fourteenth,
In our opinion the arguments of cowmoel are not cone
vineing, Assuming for the enke of argument thet counael ta preni se,
Which presupposes that the phrase *residuary entate” wae expressly
defined by the testator, in correct, and waiving the tautology that
ase Consequence would result in the use of the two phrases, “all of
my eutate® and “all of my residuary eutate” in the sixteenth clause,
it becomes necessary to explain why the word “any* ia veed in clause
sixteenth im connection with the phrase “any of the abeve mentioned.”
T™e explanation of couneel in that it may be treated as tautology,
oF else may be changed te the werd *ali” to wake the will “conform
te the Manifest intent that all ef the residuary estate should pase
i the Catholic Bishep at one and the same time." We (think 9 (»..
aii ot diet sewn to uh baal'tvn baw a hebleorg ek ated om ‘yteuh
ah ates ets “pewerts a te ¢y wuatwort fan ane eur £209 oyna
he Hees
nati tat “sade caanh bene® seit sis te rot ai'ten ten ‘
i ne “2 "
tsott sain Re ih bang aa: Tobe eerubtees * to ott?) be yt
te HE x : Ns
th ke tan "to Xiweh ai wart eepawaonn S vuleotter 0 abattem
AA Re Rei
hhee we od nik aa? é ‘ted seeing me igi amoral ene tate ee
2 Reet a A Re
tend owas fet fe eee teow wavs won saute hee ante auekert pinot 0"
nubs ket oid oF Reaaaa 89,088. e tanuped she Beth raved eae a
an gut 1a arey. ooansd attewe dao pawn te ei banitae
a sine we ay
bere stinitud et of: eaanienend °4 tea hte how .etats
ad een wetiat 7 te a mitt orate sath ge or a: : ne
ae
‘eamne to % fm “ 5? 48 a sinechaenes: enti sch a a
Bis clos idk fs ast a a 3 £7 | ‘.
waee ben ates Sete se Ke dhvchineiitdediined viliiiaiaial ‘i te
eekeove @iisecwas fake faamesse “to galew edt eh pebamemAl”» nt
uiearrqxe eew “ataten ctavhipet* aneede: act dade: aewerquRate a
teas aotoivet say univtiaw yao ,dnotres eb» a todadand ols ve hen
‘to Le. ape tlg owl wit Te see Ose at Peet Rkyow comune
age ke dtaroduie ote ah “wdasen erordinon ye kw Lke* feu
sapadeuah boo ai "yaa" Pres oad Yse mlalene 0c: “yrenamsect a
Ream tiaom ered oy Se ym” sea InG os Othe moddoammen mt udtadnd
‘Wielatie? we betner od yoo Ch sate ab Lenaron 2 mob
mera Liiw.ade ere ei ae vaisloas inencaningi
» amt at “as ae i) Dae ane 20 gust abetted
?
that the word “any” ic mot used tautolegically; we aleo think that
4t would not be permissible to change it to "all," ae, in our view,
4t ie not necessary te retort to the rule of construction eontended
for by sounsel that the language of a vill may be changed in order
to effectuate the clear intent ef the testator,
Further in surpert of his contention that 14 was the
intent of the testator that the residuary eetate ahould sot pase te
the Catholic Bishop until ater the death of oll of the Legatees
Bentioned in the lettered parasraphe 4, 2, ¢, D, 8 and PF of clause
fourteenth, eomneet for the defendante Katherine OCettrell, Laura
Cottreii, and other defendante, maintaine tat clause fourteenth
does not state where the income shall go upen the death ef any of
the legatees; that clause fourteenth dees not state where “the cor-
pus of a one-sixth of the residuary estate shail go upon the death
ef any® of the legatecs; that clause fourteenth “treate the residuary
@etate os an entirety ont provides simply that the ‘ineome,' i. «.
the whole ineome frou the whole residuary ¢entate, shall be divided
M@Bong the beneficiaries named in section fourteanth,* In our opine
fon, even though clause fourteenth may be silent in the respecte
Bentiones, when the claurce im comsidered in connection with clause
Sixteenth, the construction placed on clause fourteenth by the
Maneciior is correct.
vl Councel for Katherine Cottreli, Laure Cottreli and other
a nts further contends that "uvson « proper conetruction of
fourteenth ** the gift is alearly to a clase and not te
4 mALviduad benefieiaries; and the the rule is that “where the gift
te ‘to & class then upon the death of any member of the #lase, either
de Sore oF after the death of the testator, his beiefictal interest
passe equally te the survivors of the class,*
We clearly are of the opinion that the testater 4id net
that the legatees under clause fourteenth should take ae a
basis wens ae Sas ee itidackpokosuns haan som ae Pye Ate oats oa
sey tow nce ca * «ffe” of * agua! ot seeing ad se bn eS
| Hotesiet ot to sumont soto on saat adit “ r
uta al + fens wohsansae att Yo arene ut utenet _ cee Sg i
at oneg aoe biunen ates ye ead hae ous tout? roteanys out 4 i”
nowiapes ott te hte Yo taod vide wate Ehtow one ot Loridet
awa be to ‘ es a ot io ®t & ecionr gate bonedzex sat cade
mawat , skoxtga? ea renin stushastos sill 10 tramren _aittaen f
Mbesorers ein! 9 ootetuten stunbonted seat Ps eae vase
2 i aa
te we i sttned eae hia en Lucie enooat ould onesie
%; ae BAat. a we “
‘
ea one” wrest miata ten eon ddcwat-weor sevnte aad?
sited, eae oun . Sasi atuiaa thie wt te
ereeb ioe wii) ‘agaota” aooo cde sbua.to ‘dadt yaoedaged
Ok ¥ ywatoa a € “eile faite eiqute sobhvoty, bam rents ted
sehivil. au’ rie@e’ aiaden’ Cesattiin’ glaiee oat! alex Gheedh Miame ae
ante ‘tee ok “tems iawet onleen * iaial canard 6
agpengex cal? ab faa cke ad veer rnb |
Serto div aghiossane at herebhemot a2 cavete eft ance , bwiiental
Cent ed Miner ee siasiaalh “te desionanon iapatragianien eae teed -
aed Ma eae . wma , ktasoewy abner oe mageesy omar ang
Be v4
mt tee hae setio a es ema Ot ekg eRe xe semen a
Pot yoacte one awe gusty ah CO a ey
SC eC ong
teerstad: dato dienod whi .metaand ont Ye stoma: ed 10 8 et
ony bmotatnos eit reat minim ot 10, oe mucus’
mae gant bdwaia
Bt aera
clase, A gift to a clase has generally been defines ae a gift of
an sgeregate sum te a bedy of perasna uncertain im nueber at the
time of the gift, to be ascertained at a future time, who are
all to take in aqual or some other deflaite portions, the share
ef each being dependent for ite wsount upon the ultimate nweber,
40 Cyclopedia of tue and Procedure, »p. 1473; She Volunteers of
Amorics vy. Pierce, 267 Thi, 404, 424. Tr the case of the Volume
deers of smoricn v, Pierce, supra, the court quoted with approval
the follewing language (pp. 414, 435):
“Whether a deviee or bequest is to « elase or to the ine
@ividuale constituting the classe distributively, depends upon
the language of the will, If from aweh Language 1% appara
that the number of persons whe are to take and the amount of
their shares are uncertain until the devise or bequest takes
effect, the beneficiaries will generally be held te take ae a
Glase; but where at the time of making the gift the number of
beneficiaries ie certain, ané the share each Le te reeelve is
alee certain and in neo wey denentent for (te aseunt uoon the
Rusber whe svnall ecurvive, it ie net a <ift to « clase but te
the individuale diatributively; and thie is generally held te
be the case where the beneficiaries are nawed and thelr shares
are certain,”
We think thet in the gases at tar the legacies previddd
for in clause fourteenth were not intended ae gifte to a clase but
te individuals, The nuaber of beneticiaries io certain, and the
@hare each is to reeeive alec is certain and in ne wey dependent
Wpen the number of beneficierias whe shall survive, Purthercere,
Since the provisions in the letsered peragraph “0” of clause
Tourteenth relating to the gift to Bre, Fannde Burton and the pro-
“vistons Telating te the gift to urs. liinnde Harvey in the lettered
Paragraph “E" are different from each other and also from the
gifts te the legatees in the other lettered paragraphs, it clearly
appears that all of the gifts provided for in clause fourteenth were
Amtended as gifts to individuals and nes te a clase,
i
Ceuneel for the trustea, the Chienge Title & Trust
» Seree with the Chanseller's eonetruction af the will in
i
Nt” a Bd Dea
Xe. #thy o we bewtteh aeed Yliousema, ood per a fa. A anne
oct ts ttn a) aieduooay. mmonieg Yo ghed 4 at mus, Ofapetany
ota oe .nuld omudat & 2a bomieraqene od, of atta ond 9a
eres on? ,cantttem athalton ‘edtg eae Xo, Soaps al. het, ot fh
stedewt eteciein att apa soem #Fl 10% daobamgan, stra toa hy
HA, LEVEL 0G gOThOM OR! bah Wak Te Mh dO
manta’ ond Me oeen, et ah ohtb ghO> Mikkel 14 a¥
ha verte hd re hetanr Piste 829
sah ord. oF Menuet. a oi at deme ‘te eotven a. —
ati wilt reh a ekoritedinte ts eeate vet we tiasos bivih
Ghote A epeegnetl Home aavt Ui .ddiw ont, 3e, egawenrd, ot
Mas Manod oa enlie: in them oe sober a = ak
fey sep ttn. eda SR
& we aaes of bled of YLieiemeg Likw gabualo Piened ,fe
te visu ott Pilg a’ pelvic te weke edt de, qemeeier
2 eriven? af ak deow esnde ads en satinsere he gs
tenant om ah Sau
wei? stuart Grivars WSS oD Bow way om y
of taf aepda e af Filey 4 tom wh Pi Paine ‘atte, oof %
ad fied vofocesey af ote? pee ” Peekbeels w Lewd dete
| uae feat pee Bante ws > itn s Pinan hia on: ee
HOS Pre org: acloogn f wad We te ven oe AR Yass anne’ awe “we tv re
sud wenlo a 69 aethy ve Robin dat ton otew ai eset sats eo
oat ken thogreae at aa teu fo Pra npid ‘te evden att “ad fw
Pavbusoes yaw om a2 bar Mtetaes HY oaks evitnes® of a ea
carotene woe fetes iieda ote aotuete tsa’ tp soda ade gerd
! savas te ial eshte Dour dod | ute al Drs eae ees
haaeiree £ walt ‘pt eevee @ bias oth oo Vly “it ot wien "tae
3 AN ee vat Seren’ ts
ont mot onde Naw tosis sinew mont snexsTAdh » * %
"aol gro a (am: 84
me stv asd ta tol gousteuos e*ectpomnit « ont ake one
all respects excent as to the Chancelior's construction of clause
fourteenth in connection with clause sixteonth, Counsel for the
trustee, the Chicsage Title & Trust Company, snd ceunsel for the
defendants Katherine Cottrell, Laura Cettrell and other defendants,
agree in their construction of clause fourteenth, but differ as te
their censtruction of the other parts of the will in sontroversy.
And while they sgree as to their conclusions regarding the eon
struction of clause fourteenth, they disagree in renpeet of the
Peasone for their conclusions.
Aeoording to the oqnatruction ef counsel for the
trustee, the Chicago Title & Trust Company, clanee sixteenth, if
@xpressed explicitiy, would read ae follewe: “I wili and 4ireot
that after the death of Katherine ond Laura Cettrel., Hre, Faunie
Burton, and 211 the other annyitants, sli of sy estate (amd all of
my Tesiduary estate, as the sane ehall soorue by the death ef Cilme
or Harry Hynee or Mra. Harvey) shadd go to the Gatholie Bishop ef
Chicago *** as trustee **", On this theory ceunsel contend that
the phrase “one-sixth used in each of the lottered paragraphe A,
B,C, BD, # ond ¥ of clause fourteenth, would be equivalent to the
Phrase “an equal share;"sand that in order to eonfern to such cen«
struction the shrase “one-sixth” in each of the lettered varagraghe
Of clause fourteenth shevld read, “one share, being omeerixth, *
We admit that the construction of clause fourteen th
im connection with clause sixteenth presents ume difficultion,
The question ie not free fron doubt. it is true, ae cewmoel fer
the trustee, the Chicago Title & Trust Company, muintain, that it
is clear that the testator never intended that the Catholic Bishop
of Chicago, the ultimate legatee, sheuld receive any of the iavome
fron the estate; snd that the testator did not autherize either by
"positive direction” nor by “the slightest affirmative permission,”
trustee “to separate one-sixth of the principal of the estate
q
pawnde te Mak dag pacion a! wed Looms ons ot Be Jepoxe etooraer ths
OR aa bid id
ead 6 tk ance? . tape txte ene fo. athe mobtooanes at -
HOY igs
pn
me Ae
wait cot oe ans ‘baw eYamquted fount a orate ones 100 as pe 9
eadaahie toh, awiieg bas Kiotta9o stad sttoxtg0d entiorited serbant
oF 4a 19'r as tut «Ahnu tere’ oeua.ts % aot sountence uted at vorm
kos Abpea a
ete versie at AEs. este ‘te ering ostte ¢ ont to nol gowesaaee “them
BY W Th,
_sat08 sits gatbrages tao tavioaee. hosts of ry sortye yee okiew bes
| Wow nde , i wit ae
aad ae Jrennet ut eorganth oat Maanostae? beonke te a oly
| ne Barone ube, a ea
‘saaotay tongs uiedd at nome:
ih RR em ALES
, eae ser fonaugo te noktoirz9na90 ost ot ‘aalbroass es |
ot WBnnotets niin to eee gael taste a scat onto 69 0 . sms
ay ie
dooath fae ate ae Aawas cor an haet eee vaio here: henna
Sah) AR iat el tat
sina strut Lo 19900) stead. ban: onteontna re sidosh aes,
Lo fie itn } edetan ee 6: he setae ivans anata hie sai
auti® %6 avb oar yo urtone itane on “set an satense umubiner
‘te qecale ‘ph keate® eck: as on. neha’ {qovene “2M toy mes
Bs oval Ane dave Sonne eo Wroens m bets a PW coterie ia one ae
“ asinexneton bewerzet, ost te iaae at Som *Kixinws no" rh y
; % RE A aR es) ae
edt ot tan Lay Laeps ad b.Luow siseoneyot nun to 0 ‘ baa sf ey
pH T's
~sne soars od xo'iaee of robes wt Sas Pana" exes a, ss hg
ay Be Beam wee,
auioarqate henssoes ay be tone ae * dixinws.a0" Fasxdkiad iene
i ee gt sehen
eanets
* .iltxdnwoae pated sora oso” beer biwosie ‘Stanesewet
hae #3 yy he woe ie
_ deamon oun so te aodtourtane oats testd ‘shah OW
wna) Se A ‘Becoheee
snobs dot ALS eainy etavania sguenante sevote id kw aolieegnms &
Alta Loe make be
to) seangee oa cared ak at . dso wont sont fon me moksaonp
ah teats «ila aka. ean aso taux? ‘ ofsat eae bo pom gant yas
‘iF et MORTAR wee ee my
ode ta a2 Lonend ents uel hehaoaat avon Kotataes emt, fant ‘
hu | eae “hat ee and ay, Ph tse i
“ iaanoanh ‘eae te ws ovieaes bLuests asatene £ steele a8
ae Laney RR ae inet tig o rg
ye wont ho eel sonisue Saas bib wodasons oat aan how podate ate
ee ea SiN ay ae
* tan tareg evident Be x Sundae sap bool pany
Le
from the tetal and turn it over to the ultisate Legateae." Be do
wot think, however, that these contentions render the Unaneelior's
gonstruction of the clauses im question uwniwarrentabie, Yhe deerne
ef the Chancellor does not direct that any of the inmoome of the
estate should be paid to the Catholic Bishop of Chicags, the uwitie
mate legatee, but doos Find that wren the death of Bre. Annie
Webster, one of the legateas, one«sixth of the pringipel fund hee
@ame payable to the Catholic Biahes of Chieago; that simileriy,
upon the death of Kre. Georgie B. Twang, another legatee under
Clause fourteenth, saa of the principal fund became payable
te the Catholic Bishops tnat a similar genetruction should apply
wpon the deaths of the other Llegatees under clause fourteenth,
Althoug) there ie no #xplieit autherity/for cai’ sonehveatien, ea
think that thie construction carries out the intent ef the testater,
| in regard to the contention of soumaa) fer the trustes ,
‘the chieage Title & Trust Company, that the phrase “one-sixth of
the income” used in the lettered paragraphs of clouse fourteenth,
“should be changed te read, “One share, being oneesixth,” wa are
of the opinion that it is not meceasary oo to change the reading
of the phreee te effectuate the intention ef the testater.
4 We are of the opinion that the construction of the
wilh by the Gianecelier is correct. (% ie the rule that while the
“Wbject ef the construction of a will is to ascertain the inten-
‘thon of the testator, the intention must be one that is expressed
‘t. the wilh and must be determined from the language »ee4 in the
wi, Redisgh vy. Eoore, 287 Til, G18, 622, It is walno the rule
tn SB Will cannot be reformed to conform to an intention not
im the will, Hedineh vy. Moore, supra, (p. 623.) In
@ase at bar we think the intention of the testater may be
e4 without changing any of the language of the will, We
that 4% clearly appears from the will that the testater
Oe ee ee ee :
a talisdow dd ad totes gagdiuasuan oan ae fast stovewed jtanay r
on toak est ,aidwiantiemu “eitoene a2 ‘wile fo ane ‘to no.kt wend
ge Vd paras? wld be oul taut teeke som meet ‘settoonsdd 6
Skate wis yopne Lau “e qenetd witediad wih oF Bind ad ewan e
@inadk weet to daveb o6@ aeqe 2aee Balt eodh ‘tod ssonuger
«od Ket inghoabig et? Yo déikawens janbdegee ret ‘ona . i
peice thele fet pouae te Yo qedeld oltedded wi oe ate
tohtw sedcied tortious ,anwwt 1 obeeend jeem Yar nas at
# kdearenits emote thet! twekonkes off to Cheb adae | sition oe )
vin Hiebae cortornew ade 4a trate a sect fe ofaht' oh rested ¥
a ie eee se heir De wef ty" Ce
oe » seinen AG To Preeti aebtgne oW'ak weit
sredet ees it Te dearth bee Feo ee dete shld dees aha tine
aera ‘gi RR PRenwel MO Reis iwewee auth or — pi “ria tape 4
“ete lal sa Rated , ona eb" hae’ 40: seasaiaree
segue iat reser of Ho yRAtwADee tox cee dust awe '
oo "ata tiNd vite Ae ReRoesat oKe SeMnDENT ED OP Oa
ee ee ae wen ae wsehluede
edit <r ee eC oor a RE
ld Neale we wits te rrermienae
etl RE add 10 bphingalet Sele eit git
* aiitionl oi ite btw oat “bee ene
i
intended that the legncies given to “ilma 7, Nynen, Harry dywee
_en4 Ere. Minnie Harvey, should upen their deathe beaome payable
immediately to the Catholic Biehor of Coteagm. tx our view 44 ie
evident that the teetator intended that what he tersued the “reo
siduary entate”® should be « difYerent, distinet estate from the
@orous oF principal estate, Ce uses the phrase “reslduary ene
tate" five timer in the will. Im clause sixteenth it follewe the
phrase, "all of my eatate;* and if the testater did mot intend it
te have a different meaning from the phrase, "oli ef ay ewtate,*
it would have to he treated am tautology or ourrluaage. The
Tule, a6 stated by Jarman, te tiat “where a teatater unen on
edditions] word or phrase, he muet be presumed to have am saddle
tional meaning.” Jarman on Wille, vol. Ei, po. @921 (6th Snglish
Ba. 1910).
Tn our opinten the use of the werd "part" tn connec
tion with the phrase "ehall become a part of my resi duary atute®
does not imply that the teotater in sn previous oreviston of the
Will had oreated a reeiftuary estate te waieh the part showld be
added. Ye think that in ueing the phrase “shell become a part of
By Teaiduary estate” the testator werely had in mind « possible
‘estate, or, as counsel for the trustes, the Chiesage Tithe & Trapt
‘Company, aptly term it, “a casual residue” whieh might eome into
existence, The use of the word "become" aupperts the view that
‘the testator had in mind, not a residuery estate that he hed
Previously defined, but a possible future estate or possibig
future “eatual residue, *
ey
} i!
Clause fourteenth, ae ve have @aid, presents » wore
: At question of construction, Counsel for the trustee,
c Chicago Title & Truet Company, have argued the question with a
ont deal of force, We fo not deny that clause fourteenth is
Feneonably of the eonetruction contented for by
4
-
ry 2 pry ee a 7 staanaee 8 odeas obtonseo dog pos
Re es a
wort? nae ace sent tage al shan eat notatend odd todd ‘4
tame oe ks a
eit aor ateoes tent ban te ee a, od ay Ras xe
‘8 hontad ¢ tan: pth sofaiecs mols ™ im yataoen wie
* dane " bid itn paerta wit ao wine a sngxott ort tb @
J iv May Bee cae veh
Kon ee
pester ae se i. ty. ateat ae giles “a
Cie ot I
Soak he oe a a a alg if
apenas ch “eteq” raw nd Ye ong - ate solnige- havi ” oe
neteden etoghiaen ue to dtag » eaoned Kimte® santa att : Fin
ant Ya Wate Leong, anol vary # ed ‘sotargod walt nitt Ley ee
Sy y Reale AOR
ae bes icluaatel ORRH wrt ‘a ie ay atedoe ytouh Inox 4 Detmere best £4
Bt RY Ra Mia akg
te PeAg nunoed Abn" Renee. id goles baat fant Mabe ol we
: i Ra NE an i :
anog «. mw ae bod Lows sotegant nd * ) ot
shttavng a boku at by x “penese, yaaa bora
deus: fe OGG2S ogme ben eabt onto out vat foomoe me «tO 408
aren
Sur's, shia
ey?
Pi
ota # nyneeene en ovat one a arent
a
4 PE
i2
counsel, Ye think, however, that the conetrugtion adepted by the
Chancellor is the one that more probably expresses the actual
intent of the testster, In our view, the phrase "as the eame
shall accrue,” uced in clause sixteenth, does not qualify only
the phrase “residuery estate," as counsel fer the trustee, the
Chicage Title & Trust Company, contend, but qualifies that phrase
an4 sleo the phrase "all of my setate.* Be think that the word
*"any® as used in the phrase “any of the parties mentioned sbeve,*
dees not mean “2l1"* of tie parties; and we aleo think that the
phrase “any of the parties mentioned” ie not intended te ret'er
only to ¥lima J, fiynes, Harry Hynes and kre. Winnie Harvey, ae
@Gounsel for the trustee, the Chicago Title 4 Truet Company, cane
tend, but refers to 211 of the Legatess meniioned in the entire
wild.
Yor the reasons stated the decreas af the Unanceller
is affirmed.
APPTREED,
MeGurely, *. J., and Katchett, J., concur.
in| 3 4 Ce RS Re vant Lae a a
hate a
ons we botaohe sm teowise ioe one sate srveves sen 7 aN
vam os io oanmig oes woke 9 - " ytotataat (rr uw pitt w
ela 9 XihLoup #00 ened ,sitanodete onua te at homw ",oxreoon ,
tt yendeate ont xt frases se A wdatoe mn cue
aut aut aude ona | ow bine caeaohets 1° ne
iy Bas
we its kd beubbe com vantaiad od te ie of wto'tos a"
Ba Wi is
eee Phe i is ty ey he
rosivosd aa ‘tes vereoh out bagnte smipna9, ode toh wit aig a J
Sie ae aN RE ie Ree ie is hoy)
¥
4 ek
| aie 3
“tira, me ftesteson ah ol sant
i
z % \ Ae
eine) quae: ay aa ie we
stl | Reheat Me baa aaa
wis Aba diate a8 ihe iy a aio |
iat Heat: davnaco
wip “BR, ae oe amon once i ‘ ie
i Ly viene ore none) ‘iH pon oanen ea:
RRR SEMI op Stott
Ma RAM Na i iN Fl Ng i tam _ <ameag us amt
1A Es ECR oS A ab aie) Ova Sy dll ull fey oe ‘ghte af anne
97 = 31725
—
LUKA KLATZ,
Defendant in Srror,
BRROR TO SUPERIOR court
v6.
Oo? COOK coumTy,
JOSEPH PIETER,
Plaintiff in &Srror,.
Scale
9AAT.A. 636
. TUSTICE JONNSTON DELIVERED THE OPINIOK oF THE coun,
Thie fe an action brought by Lens Elats, the plaine
‘tier, te recever damages from Joseph Preffor, the defendant, rer
‘Anjuries sustained as the result of having been attacked and
“bitten by a deg owned/and kept on the premiver of the defend
=.
BS The case was tried before the court and « jury. ‘The
tury Townd the defendant guilty and assessed the plaintiff's
at the ews of $4200, From the Judgment on the verdict
@ defendent has prosecuted the present appeal,
on the metorial ioaves of facet the evidence ia eon-
: ing. Brisfly stated the widisputed evidence is as folle«s:
: The plaintiff and the defentant had cottages shont tee
away from each ether at 2 sumuer rasort in the atate of Miehhe
Defenaant"s aottage was situated on a let shout lOO feet square.
| about & feet wide extenio4 across the entire front of
fo erendant eottage. The presigenr of the defendant were en-
oy & woven wire fence about 4 feet high, ond there was
i wire stretched above the four feet, sight inches abeve
‘ Pp ef the fenee." There wee an iron gate immediately in
nt © 14 house of @losely woven wire, and there wae a double
gate, The distance from the gate te the verauda was
14 santa id fon GOL dooda tol © we Podantia ear enahieo
neaeele a ay sw Pda. ay TR GRMN ORME er aR tl RAAB. = 8
A aaah ei Le eae” He oe ey .8 Cmte i
at ee
PES ACTH CR MAMME fio fo ‘ ig,
“8 3 a Ai 7 i bg Let ep ea ed ar et Ah fh, pm
Rea” eh ib eit Me Pye wisn a Wi na
ROTC BRL XO MORITA CNR REVS Lay sera SORE He
Roig Ast Ve aa bay
ontetg es edu th ams we youd nal tou a at ala” i
‘ * Pat a et
o' “ tanbuiw et sti sR tT ‘dqna et moet ‘eopanas ovevot of , ‘TER
eM S| yi ah va vii Wh
bas deivasoe aaed aatvad ‘te true ona en ‘itd in
e od erates. og
ahaetad ang Xe tee kmenq’ ‘way ‘a8 ‘tqod baa or a
‘oat nonily & bee foe out waobed: pabat oa ‘sent ‘oat
blbabgeripwsncet- ond pentaden hae YSLing Sneha ted oh baat ch
totbvev oat PN “sovmogbart ont mon% —OU8RE te’ erin” one tn 903 i
Sooinn taonete salt batuoonore wart sy san
aioe @L saeebkeo orl ‘tout ‘te ‘sailed ‘kabredan: otd Pein
‘akestut an et onmedtee betwee thaw osit hedinta nisi ,
owt teode asegadion bast Pawhine ted aed Bein Vr Mate ty ont ih
etek te ated ocr wt svowet Romar 2 fa cndtte saute cont ye
te deen? exléow oat neerton hoboo dae ob tw foot 6 trots hen te
~ wtew tanbno'teh out “to anata ng oat amet t Oo at f son ea |
saw ered? bay ayia see's 8 syeoda voant xiv sive 4 xe »
erodes eodonk dqde tend eek ocd ownda hesoterie 9 |
ai ykotokboout efey work am acw event *, soos . o,
eftieb 2 aww eros tio corte anyon einem Yo oe pig X
ar ahawtoy o3 at otep oils nowt sounged® ot oten
about 44 to 5 feet, There wae a cement walk from the veranda to
the gate, The veranda ras entirely saereened in and there wae a
sereen 4oor at the ateps leoding off of the weranda, and alee a
gereen door leading frem the veranda imte the Living reom ef the
eottace. Both of the doors were kept cloee4 by springs, and the
ses @oor also had a clasp to keaop it shut. Immediately back
ef the living room wae the Hitchen and juat off of the kitehen
Was a tadrcom, The defendant kept two bulideg@s on ihe premises,
a female and her een, The Semale was en old deg whieh the dee
fendant had kept for a long time. The gon was born de 1990, The
dogs were kept for the protection ef the defendant's wife, whe
Was slone a great teal of the time in the cottage. On June 22,
1923, abeut mine o'clock in the mombing, the plaintiff went to the
@ottace of the defendant carrying a bowl of egae whieh she intended
te give to the defendant, and the younger dag attuneked and bit
the plaintiff. The plaintiff hat been to the cottage of the defend-
ant before and had met the defendant's wife, he had shown her around
the house,
ns The principal fucte in 4isoute sre (1) whether the plaine
tart Knew that the dog that bit her was kept on the wr and sem of the
ifendant; (2) “nether the plaintiff was attoeked and bitten by the
4 Just outside the gate of the premises ox at the entrance of the
leading from the veranda te the living room (3) whether the de-
mi knew that the dog had a vielovs disposition; (4) whether the
4 juries of the plaintiff are as serious ag alleged by the plaintiff,
i On the queetion whether the plaintiff knew that the
8 bit her was kept on the premiees of the defendant, the plaine
ir testified that she know that the defondant had two dogs, but
nt the saw only one dog, "a quiet, gentle dog," in the defend-
te cottage at the time that ate was shown around the house by
o¢ abaatey ead movi aker tance » enw oxen? toot # of b sired
a aww evedt bow ni homens yhorkiae wae abomser oath ote C
a onie hae shanties aft te tte sat hens Supte 9d? te, 20 pa 190%
eds to wsod guieks ox? atnk ehanxey ent wot? goibeot noob fn 2 c
ent tae ,ayahrer Yd benoty tqed ety sieoh sat To Atom outst
nad ekeraibormt dune $2 qook a quote’ a bill oath 2008 0m
eter it edt to Te Maih baw andnttet one ase moon aatyit ontt q
~wontnetg oc! xe syohiind owt doar henge ont .aoethad * i
ae ort 8s Raw neh Sie an saw olen? ett lio’ lb Bik ry va ot
REE nied env ape sat sil cs Vid $ 9H:
5)
RE. unt ~~ etn sate at wn + eet 1. tan, tgona. a. 98, 7
| galt of ann MANake tg 9st qyatieon ule ut LWOso!e, ents tugda gt
bebuegnt ole doiiw aggo to wad # yaborage taabaeteb ont te as ;
thd hep Seayedta gon sepewoy wy bas stanboo teh, exe head ovs 7
<bavten o8 Yo spateon Odo of anod hos dtatete oat .Wtkinteta
bavese ao awouin tal oe QO Rim at tenboa tes at tom dad baw otoled.#
iy see aueieh IMA ha teapot il
| atteke ont wostharte. n) ¢ one ee : wine, ten teqjege
| ald te Sandan we mid go Age enw aed etd, fads aoe ou, teu weet 2
ant yf mottid bee tolao tes aew, Tusatesa aca acid A) can co
at to comerane pute Je 20 antiowna oft Ye, sean ae wee m4
“SD pad sacttedy (8) moet advil amt 02 eraegey, aid PPR EES
ad? xerdetw (0) igelisaouhh agoteiv @ bod wed mde secs ae i
itaiole wit yd bepetin on syetsek. ae whe Vikgate Le oud te
Onl) ahd Wak Thhaadady wd scanaidestanaiatel wt
~atalg old .fuabaeteh of to seaton te, oat, sy, Aged gam and 4
dud .ey0b get baa Sambo tab wae dans wea on tath mm . |
“hasten odd ak "gob octaen atedug 4% 429% Ss chie ta
ME enna ont bearen vod, sam asin, tad em tort |
Raed ih
the defendant's wife; that she had naver seen the dog that bit
her before the day that he bit her. The defondant testified that
at the time thet ane showed the plaintiff around the house the
Plaintiff saw both dogs.
On the question as te where the plaintiff was when th
fog attacked and bit her, the plaintiff testified that she was out-
side of the gate; that she had not opened the gate; that rhen she
had reached the gate the defendant's wife eas not on the veranda,
and that she, the plaintifY, *hollered for her:" that she “hellered*
Sgain; thot the defendant's wife 4id not hear her, but that the dog
aid and ome out by the sereen fsor; that there “wee one jump on
the door, on the fence, on my neek,*
The defendant's wife teatified that on the morning in
question she was serubting the rear bedroom next te the kitehen;
that the young 4og was in the house with her, lying on the kitehen
leer between the living reem and the bedroom; that she “hod just
been playing with the young dog with the wet «op rag; that she
414 not knew that the plaintiff?’ wes on the premises wntil she
heard the plaintiss open the door te the veranda and then open the
Sereen door leading to the living room; that she thought at fi ret
that it was her husband, but that just ot that soment the plain-
tiff screamed and dropped the bowl of sage which she was sorrying
onte the Moeor of the living reom, where they broke and slashed
‘Sgainst come of the furniture and the wall of the reom; that she
‘Saw the Plainti?r baek out of the reom across the versnda and ente
the veranda atepe, where whe fell; that the dog hed héld of the
Plaintire'ts arm and the plaintiff wee kiexing the ¢og; that ehe,
the witnens, was Just recovering from a vervour breakdown, and
fainted for a moment; that she quickly recovered, seized the dog
_ Mm4 took him arownd to the back of the house; tuat shertiy after
#2 Bers Boh boo coke cowen Bot axe sont ywithw e+ ah
deste ‘Hib Pe SP rae hie’ ites ‘ont hag “ Ligh — mle eee:
pen
aku ‘ ) aed ag den Maw Wtlw er yaabastiok rt ‘ide oil
AEN bea
*henettol” wae Vaidd “Yund YoY bocested” vidtaidig 0G voit sous
gett said diaatt fie. ted tet dom bis wthe a trubawtos con
ite eevee “git daw ‘west has ao neetos ‘il’ ‘ed te
ae © skip ts we ‘ne peri ie a
at ‘gedovem wit no fend haeTee sed oie aft nhece ot it ‘hae |
‘peed LA eke? Oaaee aegioretinid bit ‘ae aatd A a mie the ee
totedee orld be gilt aed ey te wentast add me’ ‘vow ‘sat J Bia’ we
few? aut ode gee yatvorsed BHP nen meer palwnt ‘ed inpews
‘pain Pode *ypew clon gow wliy Av te ‘gol Yminee. with difhw fi
ons Aiea Goaknern sue so ame Wakadg ols sare
pelt ame med) hae ahanse od 98 robb oMa ‘ange wilde ce
gue SF te Fitgwioct ils teed aoe atv wild ot ‘ eo'é
i basin bal pdapuae teed 30 wt Patt ed wr ta
ha.
vane e i cn
: “bine weed gh” ining oot ui "ail owe
PHA wt ee»
RP ee i
‘a! ease jroo pet ke ‘Ytow one ise otwd tient oatd
obtts brie sbucvaw ot) Heetnn om od To or? es
ode “Xo cy hat got oat ieee PEN wi e Boe be bap
mee ‘bait veuiglecny ne clap se "'
the eccurrence, while plaintiff was lying on « eoueh on the veranda,
the plainti fr gaid-te the witness, "I don't blewe you or the dog.
T had ne right te walk in the house without calling. *
Henry °. March, a vwitriesa on behalf of the defendant,
testified that he went to the cottage about a half an hour after
the ecourrense and helped te clean up the breken «gee; that the
eggs were about two feet on the inside of the door of the house.
Mrs. George timmerman testified en behalf of the 4e~
fendant that she was at the cottage a few minutes after the ocq
Currence; that there were freshly broken eggs on the veranda, on
the floor of the living room, and wp againeat the wali ef the living
Foom close te the d4ser} that she heard the plaintiff say, *1 walked
in. It wes wy fault."
Four witnesses on beauls of the defendant testified
that they had heard the plaintiff aveax of the oocurrance, and that
the plaintiff had eaid that the deg whtacked her when she walked
into the living room.
Om the iauaue whether the defendant knew that the deg
had a vicious disposition, Mire, Seott Myde, « witnese om behalf of
the Plaintify, testified that in the summer ef 1991 she wae bitten
by the dog while whe wae in the yard of the defendant; that the dog
@ame from the direction of the bagk poreh er rear of the cettuge;
that he lunged at her, tore through her ¢lothing, bit her on her
thigh, and planted his teeth on her arm; that "the bite” was net
deep; that she sereaned and that both the defendant and his wife
came to her, expressed regret, and defendant's wife bandaged her
Wounds,
mere Howard Martin, a boy of 11 yeare of age, testified that
in June, 1928, while he was going through the yard of the defendant
~ the dog and started to rum; that the deg jisaped on his bak,
ked him down and seratched hie face with his paw; thst he
yee
‘
4
ey 3
ahaatey eso he Moyes k tH grind eure ‘2th Kode Toy within ysoners4909
| “nat ond 0 yoy, sas $1 aah: gn easknky one ot bias ee btenece
A “yi too apedete vamed vilt ak diaw of tage 0 bas
tagas'tsh ond “ke Tiaded ag wma tee domi 0 ytnelt sill
spe te. aad suas Shan a. fesoete eyatd on want oF jnew ‘act, ‘yaing ‘notte
ads dante isg8e neiond wat ay carte wt KeQtnd tad” sonnrwese *
~ snaudal att io, xodh 60 Lo onset 48d ae’ tee ont suet oth
: “oh ens Ye *uiasind ne bet tans smoiteonat de agiost A ae
abe aud oye wotania wath a eget ion ‘elt 4a ‘aorta, “tant as nine
ae ahneOr eat Hs ama mica? whiodat evee wots smal ° 0%
‘anti ous we iow ait ae ow haut jhadote braaipeer ic). « = fy a
berlyase fanbase de® mid te “Yuoded oe ssinelabe suet : ‘
nial vai “4 PAO TCHS ‘othe Vo taste “vrbbwtalig ast bain
: “hektoe one toate legal masnannd ““ etd Facil hee bt
ae ett Soke wont veslaitin onde *oneosto éveiid ord ao”
te Tinied 9 shaneie wwe aed sete yitott teoethy do.
aot be dae oie or te ponies ‘yak ‘a ‘Qaaté wi etneee{ rs :
get. out hide pean tne’ te® oe Ye ‘terey pe Gah ile
pene ron ant te seer % ston XOued ant ‘to Wehtoot at ont
ihe Sian ae ‘ans eke enna ‘toe Incr one ‘—
thinks the defendant chases the deg away,
it is ecentenied by ceunsel for the defendant that the
date of this ocourrence was not iu 1922, but in 21921.
The defendant offered te show by ten witnesses that the
fog did not have a vicious diapevition, but that he was a gentie,
Playful dog.
in regaréd to the leoue ef fact concerning the injurise
Sustained by the plaintifY, we do net think that it is neesssary to
state the evidence. We need eniy to say that in our opinion, ac«
eerding te the preponderance of the evidence, the injuries are net
Sufficient to justify the amount of damages avrerded by the fury,
Gounsel for the defendant maintain that the verdict
of the jury finding the defendant guilty of negligence is manifestly
Sgainst the weight of the evidenoe; that the verdict indicates
Passion and prejudice, The preponterance ef the evidence, aeoorde
fmg te couneel for the defendant, clearly ehewe that the plaintire
@ntered the living room of the defendant's coettate wannoweed;
that in so doing she failed te exereise the eure and caution of an
ordinarily prudent person; snd that hér negliyenee wae the proximate
@ause of the attack by the dog.
Asewning for the sake of argument that the attack oc«
‘eurred at the place and in the aanner contended fer by counsel for
the defendant, in order to justify the eonclusien thet the plaintirr
was guilty of contributory megliigenee, the prenonderance of the evh-
dence must show that the plaintiff knew, or at least hed reason te
that the dog wae # vicious dog with = propensity to bite
Purthorme re, we ¢o not think that we would be warranted
lime that a finding by the jury that the attack eccurred at
and in the aanner testified te by plaintiff would be mant-
ie werent gn in”
a
yew gob end beakate ee amanita
ont fad? hwhaeted ond vor Leaases Ys bot tod! ob ii ical iy
IROL a doi” Ohi Hh ton Baw epaertved a was we tan
eas Jan? ‘hosbeidihe iad vot welt OF heteTio Sahie ten eat” ? i
oitaee | a ihow od Fad out a wvoloky & oval son bb’ wet
ih in Pavia Lirtye te
wolsvial asta palires ngs boa Yo woes kone og nia yoe at NTI et
of Yxusneoen of FF belts tinted Fou ob OW" C TL Matty alld ye ) snide
~oa ,soiabge two ak sokd Ya of Yino hoon oY lovavbiwe ‘eal ote ‘
dom ati sobruhmk ond ,wotwmnive bus te pond robhndgn tg add ‘ot "
“setet ert yo be taion negemib ‘to thous exe yh tert oF Sante tts
“goibuey wild secs ithe t ookan tushse'teb 989 ret towared a Lani *
Titeetines ai sompiigen to ything taetao eb olt atte ete, oe te
“potentbat Folivoe oft snug {soa tvs wal? te. tein how ont i ,
cbhekia oonh ive ‘odd ‘So somuitebagerta ant ssotbutord: Sino bs
“Wrlinte le eis tate wende Ytterty’, ‘gdatind ee anit OF Lewetdere } “a
«gbeenwonnaty etetieq al tashusteh eld to oot aalwar ont ‘pew aa
wa %e ng 83 ae be wis oie eetevexd on the thst ede ‘ities: oe aye
oouanerty 9d ‘ane vi ag Ot “taal baa ieoerg daohung Y 7
: fore oak take aid ee seaave eis
“ou ontta oid Cd aranseicth te ‘tial aug" ‘aot a — di een td
ve a
trtendata et} void dolauisdoe vite wildewt oF gabe ae
“ove ade Ye eo aerohiowoxa ost , Goad tgon’ “ian naiee ied
et seanet bert goon te to , wean Titalece ott geet world penny
“able 03 votenod oF ‘ulm F “ithe gob bead * en Leper ‘on
908 pone +t rer ot 0 :
n'y beriwide ian b chais™ Dest tigers ne re
= betmn aid sivas £Ubd ndate Ga’ od” hd bee oe FA ah beatae , nih
feetiy sgainst the weight of the evidence, Yhere is m direet con
flict in the testimony, it is true. The two versions ef the oc-
currence are irrreeoneilable, The jury, therefers, were compelied
to decide a question of veracity; and “it is the moat important
funotion of the fury and their peovliar province to determine the
truth of the enee." Peaple v, Boucher, 305 TLL. 378, 380,
Counsel for the defendant further contend thet the
Presonterance of the evidence 4nor not eotabiieh the fagt that the
fog had a vicious Ataponttion, Wa do not wgree with counsel in
their int xpretation of the evidence, —
Counsel for the defendant maiatealm on the autherity
Of Domm v. Holienback, 289 121, 362, wid Whittenberg v. Veber, 280
Til. App. 315, that the trial court erred in refusing te aillew the
| @efendant to introduce evidence te atiow that the deg “as net
wicsious, but was gentie aud playful. Ye do sot think that the
@utherities relied on by sounsel support theixy econtention, in the
ra, the court aaid (p. 348):
“If conclusive proof were made of the propensity of os dog
to attack and bite mankind and knowledge of such propensity on
the part of the owner, it would be imeompetent te chew that at
Some other time the dog was quiet and 4id met menifest a bad
_ @leresition.*** That wae not the ease here, ** ‘The offers in
this case rere to prove the wnifors good tircesition of the dog
anéd his freedom from any disnesition te bite or attack mankind
oF any vicious propensity, *
Ye are of the opinion that in the cage at ber the ovb-
eonelusively shows that the deg had a propenai ty to attack
and bite mankind,
in the case of Thittenbory v. Waber, supra, the court
sid {P. 336) that the defendant “had the right to prove, on the
Sf whether he hud notice of the dog's dinposttion or pro-
te run out and sanoy passers-by, the previous uniform good
of the dog in that respect, and hie peaceable and quiet
-* In the case at bar the evidenee conclusively chews
q . ¢
eas
onus foorukh « ek ocatt .apAbies oer Ye Sita dele oat tendo itis
“Seen ony ‘Te exatusie owe ott abad wi HY _yiontitae? ent mt tens
hei tognuon acer (erotethee ere sat |e Ree Nobby) ‘wks’ oo '
Seercsent Yoou ont of 2" Bae pelkenanl Ye i to haoing # <a
‘Ge Sitkorst oh ot polsk verre a Te aoe
oe aE Le BE moni wy ofan © eane nth 98
any anil? Kien Flew enter sient y” vie ee lscapeotll eit
eae Haid to0% o6e Mabtdwtes son ‘een’ honbtve’ rye , oo nenarobri
ws teins Avie nee gb of ol webitelbbath” bile :
sit a" wa a = tbo
eee “eettavos “ebay ee od veeee renee fabad anh PY ro ae ee ad f
Gn BBW Goh Bas daa wortn OF Warne’ tania or ahi
wi? Adee Rated fim on ew lL ePreak neeS |
add mf caekdastads <beay sedecewe teunwed' Sl ‘the hs. Hed soy
‘P{CRE LG) Sted Peves 6H) weet 2 iy
a a qi teamgete sk Yo Obaw ‘Stew Téoke
| re toa sa Tavoqnnd be apr ee :
aa aunts ot ae pt vi wa ait
bysontaisiiet |
ong x0, moteinecsts b wget + mua fi. :
, Pere, ance’ Law RuATVRTE. OFF 4 if iS) iia AID WAC SCN MBit f ” ; :
selup dus oLdpsaneg ott bas »tpounon dpmult,
that the 4efendant hed knewletge of the vietous 4taseci¢tion af the
dog, Re net only knew of the tro previous attacke of the 4og on
Ere. Hyde on4 Nownrd Martin, but it is wundianyted that the deg wae
kept for the very purvese of protecting the defendant's wife. On
direct examination the wife of the defendant was asked this queetion
Were there any trasps oul there, oF people of that character around
the woods in the néoéghbornecd?" She anewered, “Always someone tramp.
ing through there, hunting and fishing. There is « trout stream
in back of my place, always someone om it,* Om erene exsmination
ghe teatified that she was left slene a great deal apd the dogea
were kent for her oroetection,
Counsel fer the defendent further agealgn errer in ree
gard te the giving end refusing of certeain inatructiene, The ine
Structions have not been set out in the brief, ae is reavired,
‘Geners) Pisters Suoniy Co. vy. Shas, %, L'towmadiey & None Go., 228
Til. App. 202, 26. Mewever, we have exawines than,
The firet inatreuction eemminine? ef is reforred te as
dtetruction fo. 9. The inetrustion, which war ctven at the ree
queet ef the plaintiff, ie as Sellers:
"The weight of the teetineny doee not neeenvar!ly depend
om the great number of witnesses sworn on eltaer side of the
Question in diepute, but it te your duty as Jurere te consider
®ll the foete and circumstances oppearing from the evidence in
oase, together with the number of wlinmesces toriifving on
the one side or the other, and to determine srom that which of
_ the witnesses are worthy of the greater credit; and if you be+
Aeve frou the evidence, wider tae inesructionse ef the court,
after considering all the facta ond clreumetancen appearing
tae evidence, and the number of witnesses testilying on
he reeneotive cides of this case, that the evidence of the
Lesser number of witnesres on tne one wide is mere eredible
trustworthy than the evidence of the greater number on the
fide, then the evidence prependeratesn on the side of the
number of witnesaes,*
E =
We are of the opinton that if coneldered os 4 ctatememt
Yule of low aprltcable te all eames, the inatruetion
me, sinee it makes the auestion of the vrenenterance of
+ devend upen the question of the eredibility of the
nas, te metttooget? suolohye ado Io qpha dont had tmabae teh walt
a geh oct To aMloctte, sugdrony amt ods Yo wert ying tea mE pad
gue gat aay, fart hederom khan oh SR aah EE OS OR, obyl a
) ke an 8 gon Boon tod arid mhioe dy te te. Ae OHTKe Stor rods AOh |
nothapiy atte being daw saghse tad aft to wthe est, Ot tant omny, 4
ary ta tet ourte Ao ll Re BLO has cmtiead Ane, ousasd Mie arama. y
AS EONS KC RWLA" , Barcewmn ods, *ebaadcoddahan pnd ak aboww i
annie tient sat wisd? .gatselt hem gohan youeds Ages a
Mivodivte sant 4 "th te aARMOE, WORRY 9 OMe ky Nee 9 ba
fob ait bas Leah dante a onnte Tel amw ote Sass he Adee, oa :
smpidonterg aed. x0? seek eae
roe wh tone Ny heee. utara Jae bow Tak 089,207 SeOmMOe
oh Qk aod townte at sherieo “a pateg het Bae ann ati
ebathirnan wm ata ld at tee tom lai sited
cl, enn Pies eal a gpa empen
me ot Rowe TET, gt. RO ante toman bitsenditats 4A aie ee _ :
We
ete mors saan
ey ay oe rahe saliwnicges ty
ag rin ahainckin ‘e ‘denen ie he
we? Lo ge an dude yomas ahes
shat avline
axle fe, ahha ny noe ansanvbinneeye wah |
ey
ebbaedie Fda Seiad VE todd Rib a
obktowtdial ott, dekey ka’ womans "
$6 binorhnaceese' bite th Adtewsye Wad wndan be"
waitin: + RAKE atl ie ihe ia
ee elk te ‘eekeihhexo esi ; ht olson ~ohund ae
witnesses sions, wherene the prevonderance of the evidence should
de determined from all the evidenet, which im some cages may ine
@lude Abt only the statements of witnesses but alee documentary
evidence, and real or demonstrative evidence, In the ease of bar,
however, the instruction does not constitute prejuticial error, as
the evidende consiste4 only of the statements of witnesses, In
other words, the instruction was applicahle ta the record in the
@ase at bar. The instruction does net take from *the jury the right
te decide on which side the prepomicrance rested,” a8 counsel fer
the defendant contend. It merely states,an a matter of law, the
standard by whieh the jury may determine the preponderance of the
@videnoe in the case at bar.
The next inetruction objected to is designated ae Ne.
18. The instruction was given ot the request of the plaimtirr. It
is as follows:
"The court instructs the jury that in iew it is not neeas-
sary that the defendant sheuld be proven to be the owner of the
in question, If the jury believe from the evidence that
4 4og was vicious and accustomed te bite wankind and that the
defendant knowingly harbore4 aait deg uvon his premises knowing
said dog te be of ao vieciour nature end used te attack and bite
» and if the fury further believe from the evidence that
sald dog 4i4 lacerate and bite the plaintiff's threat, vrenate,
arm and lege, ae eet forth in hor feclaration herein, ané if the
believe that the plaintiff was in the exercise of due care
r her own safety, then the fury sheul’ find « verdict in faver
of the plaintifr.*
Counsel for the defendant contends that the instruction
is erroneous because {t faile to Limit the care and eaution re-
@Quired of the plaintiff “to the time and place in question, *
We de not think that the omiesion conatituted prejudi-
‘@lal error,as the instructions must be read as a series; and in ine
struction Be, 12, given at the request of the defendant, the jury
| @mplteitiy Were told that the plaintiff was required te exercise
aa care and caution for her own safety “imaediately prior to
i@ at the time of the alleged attack upon her by the said deg. “
bivede woashive ect Te emus bnegety ate game ey wi a
eH? Yo weeae weer ei Metae ,semehive efx Tha tare hondives r ‘i
Pattee eh OLY de Beedentiw Ye etanan sare! itt etna tal ie
(tod do same 0 af pocetive ovttartenokah 46 Kabe bith ebony
es notte Intolhwheag dtetttwaes fom avo aelbenaeen) air’ tae 7
Gk Romane Te ater dard oat Yo tite Kafe bunds ‘bien tve “
out at haeeet s1y 6F ODtae LSyen aaw not toueb eine’ ke” obicbw a
tiyte na? giv oott” moet exat dont seek ao ttorttnnd ent lead th ©
‘eet fanhneo ae *, hodeot morte re hog: eed a
oA? He EL Yo cee ae wl si en date ciseber’ ot haw
add ‘te sonanehannene wate salanet oh yee ere, saaucadans web ‘bite
; ted oe onnn exit ot
OF at hotetginsh el od bodes tide hottonase at teow sat bal mh
#3 AES NRe Sy Gold te dalepor 'eitd be aha wae sakes 4a a
ican) Hey 1
aa te ton ah 8 — faite cratic sos sm
% ® Saare we SOETE &
Sokt epaahivey of wort peetied Lae pat te Beovp at
emt todd hae batinas oft of Wemssevoes ham ay
Tis eolad ot need 0 creas conte A eae ae
% ite aad ae ene fee etedec a tes Wed Db
todd pommhive at? aovt ave tind aaahiek eee gana? bao 4S hs
Pos lige ote soil eo ee =:
pi salata Pd PERS ba, gaat
ee te soto triton ont ry ee a :
weve’ ot meer yg Fast cea
Hs rotons wt
noksovapedtd nae sith anew trib cao: ty ‘dot Epa Mog site matt il
mit Rebihina ‘takes can “walt te cd este 42 aan
| ® mepkhase BE en ke hate Ome ‘eat i hd —_ af
athahetg hededioutins aoteesey wat tet ‘touts paki
ant wk Sas jeobxon A aw hawt od Finm wads ytd eal a
_ Mint eit ,taskao ted est io thexyas arty at
_etomexe ot hostyown ac! renee aid 2 eat
aint onset |
Wet bir Fe Labels
exeh o1ae oat yf to aaa ans
hs ee
ihe ay eh iy
|
It iv further contended by counsel for the defendant
that the trial court erred in giving, at the request of the piain-
tiff, the following instruction, referred to am Be. 16:
“In arriving at the foot of whether or not the defendant
had knowledge of the vicious character of the jeg in question,
if any, you will consider o11 of the facte in the ease - such as
whether the defendant knew of any acts upon the part of the dog
that would indicate to tie daendant that the dog would bite if
he had the cianee, such as atienpting to bite any person without
provocation, biting any person witheut provocation, and such
Similiar acts, if any, in proof on the part of the dog which
came under the observation of the defendant, *
Couneel for the defendant contend that thia inatruce
tien essumes that the eharacter of the tog was vielous; and that
the qualifying phrase “if any* applies only te the clause “and
sueh similar acts," and net to the slauce "the vicious aote soeci~
fically name’t.* We do not think that the contentions are correct.
The phrase “if any" ie teed teice in the instruetion, once te
qualify the eleuse referring te the vielour character of the dog,
‘and again, according te a fair and met 3 hyperearitical conetrue-
=
tion, to qualify the opecifie acte mentioned, az well ae the clause
*and similar acta.”
Gowneel fer the defendant further centen’ that the
court erred in giving the inetruction referred te ag Ne, 20, The
inetruction is an fellows: .
"You are instructed if, under the evidence and iustruce
tions, you find a verdict for the plaintiff, you shall assess
her damages in such sum a8 you may believe will compensate
areeeras? » first, for her physical «nd mental suffering, if any,
rectly caused by her injuries; srovided such injuries must be
the direct result of the ferce and violence of the attack and
by the 4og; second, if injuries were caused upen
aintiff which are of a permanent character, then yeu may avard
damages such ae will reasonably compenenate her for permanent
injuries,”
The objections to thie instruction are (1) that “there
is no Preef in the case of any mental suffering;* (2) that the
Anetroction “allows the jury te svecnlate upon the suppesed permae
| nt character of the plaintiff's injuries;" and that the declara~
A does not allege, and the evidenee does not show, that the
taphag'te, ahs to) Leones vd Dobie tine wastiort ef FF
entaty aa2 te wou pes wld aes wate by “ah borne “Pures tates oat tant
seb as ae OF howre'tes ‘ gehtowcdent ‘gaiwoltiet ‘ad tas +
Saahented esd Son 26 redtoce to ‘teat oad de poivixes at” hoa ¥
apiieres 32 gat ent “to. medoatery sehen . an
gn owe « seayv oA at eden one to a Fenced aut Eh ate 1a
ait est 20 dumg ext togy niu yam. T stoaiea pis Bed
ti atid bigow gob rg Saban oh gale oi ela rebate teeta:
guwiite cesvey gta oFhd of gektqusd ta oa, cp fod
br ira rors
dove Sus ,eohdssoveny twesdin soetog ge eval she
idee rhe gab one le Peg eet ao Yoong at, foe
: | , ".danhrated sae te doldavaondo oie 19
“wonavant adit oapaiy nant aoe sambiee ek one. ‘got gee i
tadt bow pewetaky | ae ao wnid Xe te dvetedty ‘ext ‘gad nomen , is
bite” vaneto oft af «ts net tace eau ae suave yi ‘4
oteae B athe, ten te bv qute® sous to ons of fou base ‘ata tottmbe
aap hoe re anotinetden wae Gadd Maddy toa Cs a, showmelt vite 4
es ame ptolgor teat ‘edt at goles bead ob Seine "ae epee
aaah at ‘be doetedn evotaiv dt od quttuoter sane te ‘Gad €
sertteonn Snotssuanenys » ton tom tist a of + salboones “bia
So Pas)
Ra: eR
eae: sted naagnee anne sack ate see Paces.
ane : pad da end te senekene an sous? ais to dlvsex tout
rebegsia 9 See wo dat ah we t pa
tum es Fo ome B tonto Fam nareenoy # ‘t inet a
stooges Yideamnet. ‘ftae mae Kobe aysanah
ovost® tess (n) ou _motamentunt whus oe waoitestite eae: en
yy
| eit ‘tats (2), *ygatte Te "Dndveom ae ‘te aces one ats o
If 4 Pk Ye cM Man es a a He Ce mn ee eT
ae semen benoceue ont Boge etosuonae ‘od eewt a lo™ mottos
sea, PAG gh a Re! salute die dé i ey) : '
mf “sgt fom oats ‘touts ba Viastawtak @
ant tnae yeas son euek: pert eat oe 1h bot yy
10
plaintiff sustained any permenant injuries,
We do not think that the eontentione are correct.
The plaintiff testifies that shawna bliten on the nesk, right
breast, right arm and beth logan; that the bite on one leg vas to
the tene; that she was “bleeding 21) aver;" that she wat im a
hospital for eeveral weeks. In the case of Pratt v. Davia, 294
Ill. 300, the court said (p. 309): “Some facts require no direst
proof. * * ‘The law infers palin and auffering frou personel ine
jury."
It has been held that the apprehension of poison
from the bite of a dog and the fear and solicitude as to evil
Feevlts from the bite, are proper mattere te be considered in
ettimating the damages for #uffering. Godeay v. Bigod, 52 Vt.
251, 254, 258; In ye the Lerd Derby, 17 Fed. 268, 267.
In regaré te the question ef permanent injuries the
decleration fees not aver in terme that any of the injuries were
permanent, but the declaration does allege facts from ehich reagon-
ably it may be inferred that the plaintiff might be permanently
injurea., Such allegations are sufficient. The rule is that even
if the declaration merely describes the injuries generally, ithe
Out pointing out their seriousness or permanency, recovery may be
had te the whole extent ef the injuries.
205 Ill. 144, 146; ¥
Tl. 240, 243; Bag gket Go, vy. Defries, 04 11). 894, 603;
i #18 T21., hoy. 385, 389, 390, Further.
more, the plaintiff testified expressly that she “could not do
anything with her arm;" that "it is nearly stiff. *
It is contended by counvel for the defendant that the
Pa
court erred in refusing to give an instruction referred to as Ee.
aD Fequested by defendant. The inetruetion is as fellows:
stores ate soeadine dod’ ee ome ‘cata ton! a ho ah mat ee f |
Revere o
a an sere 19 089, oat: Po = tio tataved tot tattooed
toorth on pe nici atoe ‘asta: “4 (eon wud shaw trw0s sg
wad tanseneg wee? gabreTive ius sbtanes | wie Bad wa lt? *w te
atin ‘te node nae naa ods fed Dhed aosd A dal oe el
fbve ad oe Shattelion han swe oda ban gob are ond ie
ab Detehtenon of ot avediam xoqete one ote ead moy’t’ @
<*V RO helt ev migbd° ~.quliteTtwa (tet negoma ads seth ina -
; SOS SOR OK NS, yee heed gat? oe gl ae are ee
ott ae buuiak Jaemanree t4 aaktewnp wae ot ‘Stage i shh a
diieceteah timahnn ome seb al ane :
ononned do biw mors aton? egeile avon moltara Loeb at tad 8
Ukdversenog wa Gelade Tks atete ests saste prve tak
mney salt oh where Belt’ ‘edn to Vere: ote aisobtaye tte aa
ath bw Vileteay ookiwtat ects aad iveuss terol, : ie 7
od a iynawrenee carer te ab mtvol ton cehoxte tow 9
a Ue | ee Ta
one ‘nt te tunane eka
aut; sds curate » asi ats a
cs ‘Som biroo* onle dads ‘whacotane holsheget witiateta ns we oat
| *Tikse qtnoe ah ah” a sade yee 088 ste wate a
salt taste srobaeras ed eat fevauon ee oe & ak
ait ee ot benaeten aatsoustent | a hy » aatnetox ab detre,
es Bs
® oil
Pa ke a a AS
imwaket wa wt avitovesent ot eS tetra
"fhe eourt inetructa the Jury that even if you believe from
the evidence that the plaintiff wae injured ae alleged in her
deoleration or one of the counts thereol; if you further find
from the evidence and wider the instructione of the court, that
in approaching defendant's oresiaes, the plaintiff railed te
exercise that degree ef care and oaution woich an ordinarily
prudent person would have exercised under the sane conditions
and surroundings, and thet such lack of ordinary care and enue
tien (if any) on her part, was the proximate cause of the at-
tack by defendant's dog, then you should Pind the dot endant
net guilty.*
We think that the trial court proporly refused te give
thie inetruction. The instruction omits the element of knew) edge
om the part of the plaintiff of the vicious disposition ef the dog.
There ie a divereity of opinion on the quection thether
eontributery negligence in lis ordinary weaning te a good defense in
an action to recover.damaces for injuries sustained frem the attack
of a vicious dog. The Chicage & Alten BR. 8, Co. v. Nugkkyek, 197
Til. 304, 309 (supra); 3 am. @ Sng. Sne. of Law, vp. 372, (2nd o4.);
2 Gyelopedia of Law and Procedure, op, 340, 301. The rule in
TMilineis is stated by the Supreme court in the case of Chigage &
Alton H.R. So. v. Kuckkuck, supra, as foliows (pp. 309, 320):
"it is undoubtedly the rule in thie atate that if the party
injured has been guilty of heedleuuly pleasing himsel? in the way
of « vicious dog with knowledge of ite propensities, or has brought
the injury upon himself by his own conduct, or hin fault has
proximately contributed to hie injury, such fucte whi) congti tute
@ good defense, This defence, however, devenis noon knowledge,
and it ie only after notice that the public are required to be
ny their guard to avoid injury. It is met secevanry for o plain-
iff to aver and prove the exercise of care and caution fer hie
own protection, but it is matter ef defence, *
We are of the opinion that $3000 would be a fair com~
‘Peneation for the plaintiff, If within ten 4aya from the filing of
this opinion the plaintiff will rewit $1900, we will affirm the
Judgment; otherwise the judgment will be reversed and tne cause
| Pemanded,
AFVIRMED UPON AAXITTITOR:, OTHORYI GS
ARVERSED AND REMANDED,
| MeGurely, P, J., and Matehett, J., concur.
hee
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balk wodin’t moe Bs ivtane hs @ Pima” ag wed o one eee
tect ,fteep a8? Xo Gughtowedent eh, tebse hoe woneblive edit
ed bo fiar Triialelo oAd pone tance a! rapnnion Saison osage
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4 Pe ‘
swiy 6 boar ter diveaowg Pes tales suk dads skate ov. Hae om
epbelvect to tosmede odd adden imo 1dd04900d ont “smo tou nde «
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aN sof
wedliodw geliveus eff ae aoiniqn te ytiererih « #2 erent hy
ak oxheteh Aooy « 62 aiiieants qrea there ait ‘ph touma Ligon wrotusie
Wy a A
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1s henlpe peepee Pree: wique) @68',
mt olet ed? 280 ORG Lae” embooott hte wal to af ithng
gummed Te wasio bus ui said whdiqnt odd bezate ze od
eke” (e080 leq) webekot ak \atqua pusuwateua’ .v ie ae
eieog ont Th Suste hap tg whey ab ole% ast ‘etba edu obi gn gees “
ecgneel anak eer gr jane qote or ores ed ae" seh ‘avalon :
thus? eid te ,touhnos avg odd ‘tieemia x
eied ing val yi sont neue etabak eid ¥F feds nop %. eda
aghe Lowas, Chaney » eorewad. Pr agpeede 8 se
aie per Series ote ei idee aoghy tie } wel tom Seen ih
“sie ae nei LEGG wor OL Php ote pee ge 4 rae! o,
i
bam ‘hat exan “So [spd |
see 1A 4, of Bio 09088. tau, sated capbonpainess ie
te adtt? OAs meet aemh oe aisia te a co Tate keke att ong)
EE ea Lhe on, BOR LG tines othe Veddatnke old wok 7
fauan a? bee honxeves 4 LLie toombut, ent srenttect - va
He WATE TO TT NAMES GA SERANTER has vat gal
uromge Pe prremromyanay Pw Pa
we Hor Me ne ahs Aa af i ony
CEM OD a OM oy ‘en Weyer i
140 - 31270
WADR.TVICHMIL COMPARY,
e Corporation,
Defendant in rrer, )
) BRACR TO MUNICTPAL court
v2.
im OF GHICAGS,
ABDAINS JABROITIS,
Plaintify in Error. PA G2
o>» VU
i a
See NO ine
BA, JUSTICR JOSHSTON DMLIVURED THE OPTRIOW OF THE coMT
Taie is o writ of error prosecuted by andrine Jankol the,
the defendant, te reverse a fudgment by confession ebtained aguinst
him in the Municipal court of Chicago by the Yade-Twiehell Company,
the plaintifr.
The netion wae brought on a vritten agreement between
the Plaintiff and the defendant in regard to the purchase of a
Plane ty the defendant from the plaintiff. A note wae exeeuted
by the defendant payable to the plaintarr, The agreenent provided
that “the title, ownership or right of possession of the property
: mentioned” should rewain in the payee or the holder of the nete
~~ the note was fully paid.
, The judgaent by confession was entered on April 24,
‘1925. On May 12, 1925, the defendant was served personally with
MB execution, On Kay 29, 1925, the defendant mado » motion, sup
| ported by his affidavit, to vacate the judgment. On the hearing
an | the motion, the trial court denied it.
Tn hie affidavit the defendant stated that the first
ge that he hed of the Judgment was on May 12, 1925; that by
mason of the faete that the files in the case vere lest and that ©
' Case wae numbered on the execution as Bo. 1778789, instead of
+ 1778480 , the court number, he and hie attorney were delayed in
3 ar opnertunity to exatiine the files; that he hae a good
? ous defense to the whole of the olaintiff's demand.
m9 dato xant ‘me wn jt 7.
| ee. “Jonaiinto a mea
Sys STROSS
_ 1031899. Not 59S
ete: pee a — he eandineed ro m atte o: ra Neg
is en ee me
bat ia Ss ap ARR ie “ sus digg
Nadi)
dinienn yong te Levee ‘hating “any prt ppg
Agee het arsine Babe wd aaa ke to ipteyse bir
bes urong ~~ oe csp dee,
weegers, ele, te Angoronnan. ae. a xe erm: es
mane palate ponen
et tol peter are ear er vt
a tats Dew Beek extn wknd wee wd ee KEY ad? He,
0 bambi yteverrs: otk an Roltwanme ae.
Ps boynios aroe weercasta ak one tet
The substance of the defendant's defenne, se stated tm his affidae~
wit, is that the plaintiff did mot deliver te the defendant the
piene that the defesiant selected, mit that the plaintiff agreed
te deliver, but that the plaintiff deYivered to the def endont
another piano which wea of an inferior and cheaper grade: that as
goon a¢ the defendant iiecevered that the plaimti?rf ned failed te
deliver the plane agreed upon, the defendert notified the wlatintirr
immediately thet he would net accept the piane that wae ¢elivered
and requested the plaintiff te take the plene back; that the
plaintiff refuses to take back the piano,
Ve are of the opinion that the tris eourt erred in
denying the metion eof the defendant te vasete the Judoment,
Commel for the plaintiff eontends that the sotion
properly was denied for the following reasons: (1) that seetion
91 of the Municipal Court Act provides thet » motion te vacate a
Judgment shell be mode within thirty deys after the entry of
Judgment; on4 that the sotien of the defendent was not made witil
thirty-five daye after the entry of the fudgmant; (2) that the de-~
fendant hae not shown due 4iligence in making bis motion; (3) that
“the affidavit doon not state a meritorious defense in that the
Bffifavit does net show that "the piano was returned to the 4e«
fendant; and that defendant "cannet retain the piane and at the
fame time eseave paying for it,"
In our opinion a11 of thease contentions are unsound.
AS we construe section 21 of the Municipal Court Aet,
it foes not apply te judmmente enterea by confession under « power
f attorney or eomnovit in the absence of the defendant. It has
held explicitly that the previaion ef the Practice Act allewe
| enamine ot ik Puntos wt perapantio macalciliahastepenause’: ?
whet he ARS ws meenee aap, MRD Tah a’ due hae Teh odd be oenentt “
ane Famhiae teh gat af tov dias som Doh Viktate dy wat tn Y ;
ewes VURGRo le it salt b ve boreddew sienaetes ‘wits psi
tao ae ¥eb ae? of hoteviteh Wtitako tg walt tate tod senso
te te8t (ohety teaaeds hae rolwe tad om Xe. aoe sto bow eonte 4
_ patie best Theale ty aid tac? betevege dh toah ae teh asd pe me
Wiitniely o6f bat item Inpbueies O03 .aege Aaety ), Oaake watt tH tLe
hana ties oar dou? onmte adh teonee tom bivew of todd yletat om
ode dani phond onekq aut ted Od Yetemtety att besaoupet ba
; sonwie ot died edad oo Déamler TEM aied
AP Sete Pua tates ghd Sede aeRO BME Re ROW) Ot wh
firemen, edt stagay oF Punhus teh ott Lo aosiqd O42 gn
“teliom eh Peds Shan yas en ee a i
aeitooe Suit Uf) ikamore ghtwostor At re hein aam ichingt
a edsasy of meliim a dealt ovtrrare dod sew Seqhs lat ont * ‘
ers vidoe wat tae wean yderkey white be atom of ftaun & pat 8
saw ee 3 Sua. enw ‘saabiotten id Xe Lacuna ante iow bad tien ent
ae bane ak nece"inb x sai # ates te meer igh :
~~ wat of hoseydon ‘eat on te oneo dead ue
‘ett te bas ‘aunle ond tinge — ihn toa
Rianne OTR RHEL aetna want “Le Tee apiethee owe Yas i sd 4
. toa fenied fete ine’ one Ye oe ie {Sou aearanoy ww WA es
Towed @ WeBaw melawe tate ed howstnm elnometurh of ete ton
ead 9% Lanmban'tod oi? Lo somduda ont at pivemgue’ +0 ¥ oO
«Wale Poa do ttuar’e off need vy wale nd “eantakeenee hei
Beevey vy. Alcock, 9 111. App. 431, 434, By amalewy we think that
section 271 of the Municipal Court Act should be similarly cone
atrued,
in our view the defendant exercised due diligenee in
the cireumstances in filing hie motion to vacate the Judgement,
The motion wae filed seventeendaye after the defendant had
knowledge of the Judgment; and the dafendent alieges in Ate affde
@avit that he wae delayed in filing the motion by reneon ef the
fneorrect number on the execution, Warthercere, it fees not
appear that the rights of the plaintiff have been erefudioed in any
way.
We do not think that the affidavit ef the defendant is
@efective in not allaging that the silane was returned te the plaine
tiff. The rule is well sstabliohed that unieues otherwiee agreed,
rhere goods are delivered to the buyer end he refuses to segept
them, having the right so te de, he ts not bownd te return them
to the seller, but it ie oulficient if he notifies the aelier that
‘he refuses to secept them, 2 Williston on Gales, sections 496, 497,
PP» 1298, 1206, (Qnd ed.) To the same effect in principle are the
er engest
Yor the reasons stated the fudoment of the trial court
and the sause¢ renoanded,
REVERSED ANN REMARTID,
Fely, P. J., and Matchett, J., conour.
od uta od hea ‘gad Line > teehee an! ~n
4
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i ace ps Pe st y
samt no a"
| za ‘wis FY afore gree ’
Aor ar oe ned vad ‘attaiate edt te aaa i
aime Ms ea
ad taghentsh ond ty Five hn ue tous dated ‘gon oxo” ‘ah
wahoko ete an Seavadere ‘one al hood Kind baa wl ah. owk
cshiod var so whe tae we
teaoae oo sonsrtor re tal’ ar cae
, wet wuder od bavad Bon OF 64 jon oe - th ‘ap ‘g
“fails “oisoe aie asitided on “Ph eae BT
Fee 10 onghieen jon tad do wodek ity #°"
| one om » olelnilien at | tei or. “
ae an tes is
ei sae:
, aT 2 wot
nto a
Miah Ce eG Geta SA! Rha aN 5 RN ab “) won kine i,
le Ms Ma Mee a ome ma ey of ici Auta” iat beh ae einen
Rr eh aaggie NS Salt ‘iii ky i a Na a “Semen” ao nay
hey BS baer ay
LM a 4 igh ty sieicieres ae ¥ edn’ 1 ho he AN
14 S- 31270
WADB-TWICHELL COMPANY,
a Corporation,
Defendant in Error,
EBRROR TO MUNICIPAL COURT
vs.
ANDRINS JANEKOITIS,
Plaintiff in Brror.
OF CHICAGO,
_—
Li
a4 4 a gt
on, aim & g ee @ ' 3 4]
SUPPLEMENTAL OPINION BY MR, JUSTICH JOHNSTON,
G
on petition for rehearing counsel for tae plaintiff
maintains that the court misapprehended the contention of the
Plaintiff in regard to the power of the Municipal sourt to vacate
@ juiement by confession sfter thirty days have expired from the
date of the entry of the judgment; that the precise sontention of
the plaintiff was not that’the Municipal court did not have such
power, but that the power could only be exercised when a petition
is filed wmder section 12 of the Municipal Court Act setting forth
Sufficient grounds; that in the case at bar the defendant did not
file a petition, but filed a motion aupported by an affidevit, and
that therefore the liunicipal court had no power te act under section
21.
We do not agree with the contention of counsel for the
| *‘Plaintisr that the motion of the defendant, supported by an affi-
Aavit, Was not the proper method by which to present the grounds
for relief provided for in seetion 21.
In the case of Harris v. Chicago House Wrecking Co.,
me TlL. 505, 506, under section 89 of the Practice Act, waich is
: similar to section 21 of the Municipal Court Act, it was held that
an affidavit witheut a separate formal meticn was sufficient. By
g enalogy ve think that in the ease at bar the motion surperted by
the affidavit constituted a substantial compliance with the pro-
:
i ; Hi 1 ei
: § stolseoy thbrw tow oF “we¥od ox bom Parte loorevnaenl ott eretevedt te ie
# CAN, ey ely ny
CORNER th
iesiat salto Taam all nonse :
aren BORN, ig Ah, toa ee ‘rusk ts a
\ me) G (5) “fet “y <7 m ? Hai «4, ne hel
il uoraunot sortent, - Bs. § worn an ahd oh
* sal ‘A ‘#3 sein ss
Trissiedg ead xo? picuece gat cassie ‘tot weil dog he ‘ Hee
eh saa Ri La jai
ant Yo Ao Et mB 4009 ent bebsederqqae tn ftu09 od tadt ontad oP
etovey ot Saiee deqto tri eit to tewoq ont ot skeen at vines of
ext? Hott Bertaxe evadt ayab yoc dae ett hoterstnee w foombat e
te Hokaaltnod stewie bit ted? jtoeeatut oat 4b yatns ade Ye oat “8
don’ ‘Svat don KES dees tog to trast ‘eit tant oe, ‘cow shitalade ; he
nottivey # cecw Keetbrexe of cfkd biwoo ‘ewer oxft todd ted |! Wek
idx? Yuttiee Goa Povo Teg? toed aay to SL woljose rebay yee et
fon bib suabhe'teh Sit xed ge ane ote ut tedh ; ebayorg’ dio to 1 e
\ gutlveie 2 eae he «s bettocee aottom & beLtt tue , welt Hed & of :
4 eee oe } as BS ACD aL ¢ i 3 ’ ead a eo Pe ca ria a WY pis 4
ba 4 i 5 Wel PARES bay MLA WSR RO Ohi Lot ae: ee cheer ‘ ..
eas ‘et isemyds %o MOktes ded! walt! Wtkw eptge Fon bb OW! + sin ang
«f¥ie na ¢@ badregeque {teehee tab od ‘ta’ nok} en’ out sna Menbither e
abmwrera et ¢neeerg of sokdw yd Dovdem teqete ait ton saw oie 4
off noltese at tot re Reklox toF
‘a fois, Pecteet bdateny
tedd bled eaw tt ,foA to0d° tneke teat off %6 Fe) nottesé. ot jth
qi .tastoitive eaw cotton Iserct etereqee a fwadt bw shania ce
vd bedtogass nots em edd ted te sues ont mi tect Sobett ow eR ses
~org eat asiw sacle tel st snotedue 8 botutteenen savant | sad
Visions of section 21.
Geunsel for the plaintiff further contend that the
@pinion of this court should be modified so as te read as follows:
4
"Yor the reasons sitnted, lesve should be given to the dee
fendant tc plead to the merits, the judoment in the meantime to
stand as security until the merits of the ease are heard and
dctermined. The jJudsment of the court below is reversed and
the cause is remanded for further proceedings in accordance
with the views herein expressed."
We do not think that the centention is correct. The
writ of error in the case at bar was prosecuted to reverse ihe order
of the trial court, whieh denied the motion of the defandant te
Vacate the judgment entered by confession, We are of the opinion
that the motion shewld have been allowed. it follows that the
order, or as we termed it in the eriginal opinion, the judgment of
the trial court, sheuld be reversed and the cause remanded,
Te
eas saad nan garo tocistgy
“ah ‘add: ot ae ach | tats unoaae% a
Ot stations ead mb sabe . wc apes ry oF recon Bh os
bnew based ote eae ott mg atk rem edt Ltt .
bas heeveret ad sie “ny : ce te ng 4
sei cabo aeet nfust rot hebaw
m * bone otyKe sachs awe
Pk A
aides oat te ons w sans sg pare wer vat 8
sey ‘eu Sissi ‘avoito? a “otdal need ovat béwastn dis cs
BEF ERT Bion Setar WA ie ate. Teh ROR ee Roan tat
i" poerahe oat Hokaiao, Aentgixe ot ak ah. beuned
: bobsease cans oe ae dooroven ‘od it
SO RF Pie ROE | PART ake
AN To
ie ae TR AR ANE ee Ke eS LACM NOL MDT SAN AN SSO, 2F
wey Th hy q “ , y/8 \d Fite " Ap te ‘ae § AS. »
BRE ie Oe etre chs ey Se nie aH i di tt ay ie ae G “ae RO 1 aa hanrey Oy ea de we
ANE i
y mn s 9 site) Aces
NDR ark 4 ce eo aaa 1 ay 34
aya fe ath ge \ t / i apt * TS i i Ke
ra e , eS | Mi}
ey “sf r
a Ay IY CME Ks ‘gh i it
at mt
i A eae hes i
i) % r 4. ey ts an
A 4, Oe { et " eRe ah a
a
fi PR “peli em eR MAM boi tit
rae ake vd ed
> , Dray pes in AUP RMN hae Yates ‘iy Saw NaS ty 4a Ht
eK Roe GON RRR: ine a Rares am “ity RE al Oty Me ene val
SO Re ving ay ve pe ‘
SUM Cy BR ger cM A RAL et
an,
Dy
‘$5 = 31178
THY PYOPLE OY TH? STATE
OF ILLINOIS,
Defeniant in Mrrer,
ERNON TO CRININAL CORT
ve.
OF COOK COUETY,
ALLIE WSS5c8,
Plaintiff in Brrer. cr
9AA 1.A.636
BR, FUGTICK MATCHETT DELIVERED THR OPIVION OF THE COURT.
Plaintiff in errer having bean arraigned pleated net
guilty and was tried upen the firet count of an indletment sharging
| that om March 19, 1924, “in and upen one Reuben Tyler, in the Peace
of the said Peovle of the State ef Tilinois, then and there being
| ‘feloniourly, wilerfully and maliciously, 4i4d vith a certain ree
wolver, sai4 vevolver then and there being a dangercus and deadly
| Weapon, make af aesavlt with ao intent the gald Reuben Tyler, then
and there wrlawfully, felenicuely and with malice aforetiought, to
will and murder, contrary to the statute, ete."
, The jury returned the follering verdiets
"We, the jury, find the defendant, Allie VWaeson, guilty of
t with @ deadly weapon, in manner and form, ne charged in
the indictzent. and we further find from the evidence that the
«Badd Aefendant, Allie Wesson, is now about the age of tren ty
© years,”
Rotions for «a new trial and in arreet of Judgment were
ed and Judiment entered that:
"It is considered, ordered and adjudged by the Court, that
the snid defendant, Allie Wesson, te guilty of the said oriwe of
_ afeault with « deadly weapon, instrument er other thing, with
Antent to inflict upon the peraun of another, a bodily injury,
where no considerable provacstion appears, and where the oir-
' of the aesault show an abandoned and malignant heart,
pen the infietmant in thie cause, on eaid verdiet of guilty. «**
Plaintiff in error was then sentenced by the ceurt te
h ) Houre of Gerrection for the tere of one year and fined $106, Te
ore thet Judpment he has suet out this writ of error, Upon the
S the State's Attorney *leeted te stand upon the first of three
oF ae a ; ee ‘
ein the indietnent, ang plaintirr & error contends that thir
my $0 anurans or. ona
pei ter x90 9
stir Wi ewes
pins BH qo basdaseninn “ae cma areata
0 Re
- ty ‘yp
Ngee sn
an foo duno Le Aneapurid aed gakend sort at eng ne th
guckpuase danas the hs te syne tox ant mays a a
alll ont at rea node oe aage bam ate r
anied wand baw aan oh emboul cs v atos8 odie ta )
Re ee SEES
oon ainav09 * se ee bah iwwats haat oan ihe
een ‘no euovoute r ‘gated onde Sam switd ravsore:
{SA
soak todet wedwel bine wit bend 1m debe tioaene Bi pe
od ,teawoiterctea aocliew MP9 betes whhaahanae®: Pulse: :
nreoisweyr paseo tet pale howe wton Ytet. a
to ytilon paomme’ whLiA ,teehae toh oy B22 pewt edt pe
@i bogiade eo ,oxet baw «ean ak ,sOgPeW — @ dake 2 dav
wade tact eaneiive gcd coth Anky weadecitt ew ss oemte, 4
ayers bo age att tueda Wax at aconee? Fettta Syn mm hs
wie dunyhet te daovte at hae Lotnd wat a tet ean tgoi
thats Senedaw paeseanat bee
taey ,tiwad wae yd baghalie far dered ,
te aalto blew att Yo yetley #2 eg
diw gate tandko ro Fosmytant 4
wakes - ysibod a ,.wmeurone To were ie
«i fe ol wise ee ge TOS MLSE OTE E AE Nd
itand dandy thon ban baited nade aa worn #. 22s To aes |
*he ,gofive Yo todiney Bias me anime ony as ama 0 “—s
oT .GOSE hemkt hee Taey eae to mad ond eo i | vidi ha ta
Pa .vouiere. Se: 9 SNC Oe fo howe Ha en em +
4
amounted to an acquittal of the defendant en the other counts, and
that the verdict is not responsive to the first count and therefore
‘will not support the judement entered.
The evidence tented te show that the alleged assault
wap made at 1504 &, 57th street in the city of Chisago, at the
corner of Lake Perk avenue, om March 13, 1924, a little after \
eight o'clock in the morning} that the proseeuting witness, Tyler)
went to that place at that time for the purvose of seeing a Dr.
Gorgas; that the Deoetor was not in wien Tyler first went there;
that he, Tyler, was.reading « newspaper in the stairway, the
‘Office, door. being locked; that plaintiff in error, while the
Prosecuting witness.was, reading a newspaper, came towards him with
& gupyin pie. hands,.and as he, Wesson, got to the stairway, said,
Evil, k122, you," wairied ‘around and as he whirled commenced
Shooting at Tyler;, that one. bullet struck Tyler in the back of the:
wh;
nee.
Prior to this time, Tyler and a brother had a flat
te F, and the defendant roomed with them from 1922 until about
Maron 15th, 1924, - just three days before the shooting. Both.
Sn 3 ti 4 AY >. ,
and defendant worked in the posteffiee, and the fat in.
= the lived Was at 4454 Calumet avenue, At that time Wesson .
yal by Tyler of having hed improper relations with his
Weise s) wife, and Tyler says that he wi sed to send nis vite to
in Oklahoma City, snd asked Yeasen to get $65 or $75 for
pose, ‘and he says Wesson apreed to do this, and that ha, |
+ tdl@ Wesson to ‘give the money to ner} that he Tyler ,aian't
- Utter tag ‘eonVersation and on the same day Wessun nauea,
USNS 8 Dot “ive AY money to either Tyler or Tyler's wire,
| but he 000 PMuantirr tw érvor dante that Tyler neeused him at
me time in question concerning his, Tyier's wife, but says that
St that time; told him in ubstonce that he had’e dietaphene
‘ss DORM, dient :
} 3 Lemans begndte wed dasil wait BF Se hosad. onrgteyl
i nie, ee 4 ogaoat te eidwis Ae ak dome
1 ae ee ee ee
| fu yea te waktwaengng 958: tore gh 4th
| we paleo to ae anny ole cod in (s dart to, wale gost ot, )
pemat gate, dart rely? nome ae Fon eee sobwwt- edb: tant ye wret
sWretete ett ind seman ten a saabeod ante we ri a
sit edhe peontee et reds agit dante qhesour 4 kod ‘oO E
Stiw aid ebuewet smn pcoeeee & nalteor hacer ermiedt Bee yak ittivon
bien ,yoredate woh 2 Bex Asante eat aa! ine sora
Aewmomnon Seki oi: ee ee ‘paises wow Lh is
path Ro downt oii AL cody vow ee ste 0 he ha sah
felt A Bort qa one # hea 4a Pet ode ahd of “aes
pees fbeew te oe ‘noi et ‘as te ts | snabae Yon oP
sig a ei a das accied weak ‘weal’ dout” “ath et :
nt ‘talk palt Gd Sadabineianndl wad ar her ow arse rob hem
45% «oui bu in, ot reine ans ma ot cys
cot aohee yah onan wilt tm be ;
Pree Vf
Fah ae Pi th
yee ut dai
hi Ma ae hee
ace ;
af
AE
CUD tii ar ach
bi noans'ts09 o poh bat ptt att font sae
that if he, Yeason, did not give Tyler $180 by two etelosk, he
Was going to Kill him, and that he said, "If you think you gan %,
tell me now, I will kill you now;” that there was nething for him
feo de but consent, which he did, He says that Tyler asked him net
te move; that he didn't want anybody to know anything about it,
Put thet on Saturday morning he tel? Tyler that he wae going to
Preve that the accvueation was a lie, Me says he wae afraid, ond
@idn't know what te do; that he consulted @ lawyer, Kr. Feathrooke,
and tock a leave of absence from the vestetfiva for tan days.
Plaintif? in errer aay that on the day of the alleged
Reeault he went to the place in question te aee Dr. Gorgas, who
Rad been his doctor for three er four years; that when he got there
he sor Tyler etarding with his back over agatnat the wall; that
Tyler took down his newspaper and gave him "« dirty look” ana said,
Wesson, want 444 X tell you to dot Yesnon, whet fi4 I teil you to
4o?* that pisintiff in errer replied that he was net bothering
Tyler and told him te go away and let hie elene: that Tyler said
he was not going anywhere; that he ¢ame te see the éoator; that
Iyer then cane back and started down the etairs, and before he
passed where plaintify in error wan standing, he put his hand in
hie right-hand evercoat veocket and slaintiff im error whirled ona
fires into the selling; that he used the «un only with the imten-
wa of proteeting Aimeslf from hams, and that he cesse4 firing
@fore he had oxhaunted the shots in the gun,
Tae testinony of Tyler 1a corroborated by othar wits
Produced by the State; that of plaintirr in error by other
whe testified in his bebvalrs,
Plaintify in errer, by his requested inetruction Be, 6,
a the Court to tell the Jury “that an ascault with intent te
me r be defined as an attempt made by ome upon the life of
Wnder such cireumetances that, if the atteapt so made should
se death of the person assaulted, the person comnd thing
Bath ie i, Rain Oa
“1 sieods roe overs ee de 4 sete orks ton at snes soa ke
a Peay tn
: ; ®
.o wed wey satat woy bhon ad anes ban gibt LE ch oS 03 yaten me
as tot prbitya ear ovale gece * von uey aes hte, 1 Wom om Lhe
ns na sis, Paka eed hie taut isis of aha ae sie trea SY ee Sn?
Rusa ins: chee
i oo ee answ ee ‘tae pony se oat, fea speheerbalh ik 4 28
| a ‘te, biota ome at ogee of ahh a war, mee Rtara ge oan ald ast par
paboametrns th, HEL 6 Se thirenon 94 tect pohoot ted Wonk dade
RW ARE Te? wes Tiadeog ads mQXt ponoita Yo mene d a sng ih
howe i ie 68 Le gab nF ao Salad shan cromte RR RA 0) anny
GR isi KO AS foe 08 HOA tOND Ab Qande ot at ney, emt thane
ons $04 ah moae Jase panKey sak To se BOT zosead, ah 09nd Ba
ted? jLimw ont tontegs save deed att dln pathnate aay ann
ahiaa baa “Moat cocth a” mid avay Sad wsqpqeypR wld moroh oad |
a? OX, fot 1 bib tery ,aomee*® feb of way Ilo? Y ahh tone yi ‘ i
_ aastteaitod toa gow on suds fntigqas woete. ah Vithatate test” . ‘
bias idgeah In vane anetend trad sf oe ane a hes * ot ald _ ban
“ant progned oat one at saae se tats jerecinyna a Ly gh
od exoted hoa attede site awob bedsoze haw Aood Preah
| at baou ote sug “a enaithangs ane tents a , nae 0 .
| ae bosuhan wont “ath Msaia te hae toro pe daow nie
; sanamt ae a3 te <tow mast oat peow oa ange tante tine ont,
otal hone wet gait baw ft not ALoante . alten |
» sry oe at ators oat hetenates v4
TL eee
site sate e baverodoras ot ene te womstent oom
Co hoa
ere Nes sorte at Vetsmtesy ‘to todd jee ?
Ch aa Se Ae,
; Fa vet ote mt te *
ot i aa dttw ‘Sowvon prea
ty writ ot’ aecat ‘ene ishery?
oi as es ili oa
a EM Bs.
Migs nowneg ode ,Aee:
" Bg ant
ae
the assault would be guilty ef deliberate murder; an¢, te sueteain
gm conviction wider such a charge, the proef of such facte mast be
made to the exclusion of every reasonable doubt im the minds of the
jury, otherwise you must aequit of thet chazge, The cireunetancas
attendant upon « homicide may be such that the act ia neither
Juetifiable nor exausable and ot111 not be murder, that ia, it may
have been wider oueh provocation and heat ef paesion that the kille
dmg emounted only to manslaughter, If the clreunstancer are such
thet if death ensued the Killing would only be manslaughter, the
eeenilant, if death 414 not ensue, cowld not be guilty of an ansault
“with intent to murder.” The court did not give the inetruction
ey aS requested’, but added thereto this stotesents; "Sut the
enfant may, if proven guilty beyond « reasoumbie doubt, be found
lity of an assault with a deadly weeson with imtent to infliet a
‘iy injury,”
At the request of the State the court,aleo inatructed
}, OF where the cirowsetarees of the senault show an obandenea
; ; Malignont heart, shall subject the offender to a fine net ex-
one thousand dollare mor lese than twenty-five dollars, or
am ent in the county jail ror a period not exceediny one year,
OF doth, in discretion of the court,”
Plaintiff in errer earneetly contendea that ln giving
inetruction and in modifying defendant's requested inatrustion
, . 5, the court erred, begavee the State selected te preesed under
. e first count, #hich charged am assault with the intention te
ahegene of ,deq rmbt shared Kah te whl hag o4, Ado ftunene .
sf ewes efor" Hone eo Noone ate Wigraat, a tage Koha maltalyege.
ott a) ot aes outt ak atusa’ abdassonan weve ‘te motaukone, onatt ot oh
appr tame t he. est agents dans le Mangas Sams 10%. oatwredio «xm
thedies af dea ome tnt dows ee ahdodmest & aoaR tannae ti
wow #4 gt parts o Teh Tent od ton ALM bie aLienuars ton, peda,
me tdat edt busts agianag > dnod hie Rotsanerarg, Hae, eohat set ay
. sing ete waaadenwaste ede HL. stedsigne fe ae od ne, fos ome: On
end tigen Seana, ad yhoo, p6ve Pah Lhe ang hewn, tanh 28 te
hana ag ie Utdaws ad fos AAeg .eueam Pom hii dap th. aap
Redtogtanad wuts avin fom bib devon age i
Ne we ie ier st ah ahs Oorumats, bleh ts ARO
” gone men mo forded at penal ae vy ‘antes ovr 910
oe Aotsnaovorg eidmsad tenes on en eae owed, yon, # Pid
benehinads si wore $hines cd Xe boonat esate, nd A rag ie
ane 1 ee ante 8 ot siscaathd et pow tue oe po
* ,g1v99 out te
pateig af dead ‘sbumigaos «isan xerte at ‘
aadtouaten’ petaeuyet ot sauteed ja aati wh labs:
sursencat # be ssyonne peat; yrs hissed + trate ba
ohne: bemet eda ae gnivoite aegnadnoaenihe. aoe wi sine
wigan wathes 6 tobim of mals aagat sete tuaoi 2
The State adwite that inetruction hse, 16 vas erroneous,
but argues that plaintiff in error wae net injured thereby. I+
dees not attempt te answer the contention of plaimtii’r in errer
that the eourt erred in modifying instruction Bo. %,
It was, of course, ioproper for the court te tell the
Jury that plaintii? in errer might be convicted if the evidence wars
Fanted eueh conviction upen « ovunt which had beem vithdrawn, org.
over, the instruction was not agourate, evan if there had been a
@eount charging the offense, Gestion 26 ef Chapter 38 of the Criminal
Goede, (see Sui th-ilerd's [11. Nev, Stat, 1948, p. 273) states an ele
mente of the offense there defined, the intention to inflict woen the
person of another » bodily injury, where no considerable provogation
appears or where the circumstances of ithe aagault show am abandoned
OF malignant heart. It iz apparent tuen hat the instruction, as
modified, vas improper for the reason that it was sot appliesble te
the count upen which slaintisf in erver wae tried; and even if there
had been such 4 count, it was not on acourate etatement of the Law.
AS wan stated in People y, Bliie, 409 12. H1, "a verdiet of guilty
of the orime dofined by section 9% oowla not be returned unless the
Jury found a1 the facts which ore nageseary te establish the de«
fendant 's gulit of that particular orime, The verdiat wut reanond
te the iasues submitted to the jury, and must contain, either in
iteeir or by reference to the indictment, every material element of
@ erime, (Donovan v, People, 215 111, 880; People vy. Lemon, 232
» 193,)"
Sor the reasons indivated the judyment must be reversed
the cause remanded for another trial,
4 KEVERSED AD REWARDED,
rely, ?. J., and Johnston, J., coneur,
“
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wert gilt Ye Somes ab otewone ae on ea a amon “2 foun f
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82 - 312608
MOLLAND COAL COMPANY,
ration
oleae Defendant in Error,
BRAOK TO GLRUHIT CouRT
vs.
A. fT. PYYER & COMPANY,
Corporation, and OSCAR SOLvy, Coroner
ef Cook County, Tilineie,
Plaintiffs in Srror.
OF COOK COUNTY.
/ >
BR, JUSTICE BATCHRTT DELIVUNED THE OPINION | oy “one coun.
2 4. 7 a A tes rey |
Plaintiffs in errer were the defendants te m bill in
Squity filed by the commlautnant, Helland Coal Company, om August
19, 1074, They seek to reverse a desres enteret by the Chenemller
after hearing ad upon the bi11 and anewer of defendant, Velfr, ae
eorener, plaintis? in error, A. %, Pyfer & Company, saving been Ae-
faulted for want of am answer and the bill being taken an confeased
an to it,
“—_ The bill avers that on July 18, 1924, plaintirr,
6 Coal Gompany, resevered a judgment at law against one
Peter A. Olsen for the sw of 91325.54, whieh is unpaid and un-
Satisfied; that cemplainante sued out a writ of axeoution on
this judgment, on or sbout Julg 71, 1924, directed to the Sheriff
Of Cook County, where Gleen then resided; that the Gheriff made
& demand on Olsen; that on August 7, 1994, comploinant filed a bend
wits the Sheriff of Cook County and direeted a Levy upon certain
Property of Olsen located at 6620 North Aebey street, which
property conaisted of flowers, bulbsy plants, ¢te.; that the
or tr took possession of this property belonging te Pater A,
Ls and hela Possession of the same up t& Auguet 12, 1924, when
: | ident A, T, Pyfer & Company filed in the Superior court of
ok County & certain writ of replevin; that the coroner, by
ue of this Writ, dispossesce’ the sheriff of said property.
‘The bill avers that A. I. Pyfer & Company was acting
|
SORLE =
eee owt Ah Saabasted
i tateo ROMO of KO aeons wi
| i ee ee : Wane emer
i one | ononed “Lay jaan ano «J
a. as Ci es ey
yt 4 torn ak ethisi aes
} Mg Ree TRESS | ahha
1 ; a ToS we. 0 aorKE4o ane mR a8 remtaN te
HI Wi Ne iy ‘ . :
| ih hee * od esanbyetes ocd enaw torre ab it. ae a “Fiat
he
Sncran aa Nimgnod Lead baaklel ,onacbe Lesion std ye SOeY ye
‘i todioonast ant ud hevedue aaah a; Winnie ae ane war * m ,
ee, Pele® sSonben tab Sq teem howe bkes ost mca ‘need sa) aa
em ased yahvaus a NGROD & wHTYT A storia ‘ad Tddate te,
hanno rane aa mudat gning Likt ont dae womena 10 Ro, tee :
Meatalate AR ot chat, mo. Pagid arara, wt OM ici bak
wao sontoge wad to tomswhet a pemeveoyt , mam
eter baw. bien oi ap icy PO BSELE te ave, ont oat
a nell nokinvense to ae * due down atarite Lamon ,.
Warec® eat? of baboons, APOE, £8 aes tuade 10 ne a tes
mies Thbsswte eat tmate pheblanx acd ane.6o exeste yx
baad 4. neces Pais Lemmon ser A ileal ao dens Ane
Adatsos seme WOE @ RACoOREE fre vowed 1000. 26 3 La
she deter stentte waders sah « Saris ta sag lh
a wet oe nahasated xamoqene pina, a REN, |
sone 80 see does gua ae ae ‘ora rere ‘te a cn ia
™” fuee sedan qui odd at bos yh gamete * ; ” ou
“ed 9 ROOT OO eutt sont shoe 0 te. thaw Pee ty
sUrteget a flea ‘to Tinea oma ‘Pasaona saath “ mot
galinn wer yangmad A soryt .T ” tans exes rie ‘wit
fim collusion with Oleen; that A, 7, Pyfer & Company had filed « hound
ef $1,006 with the cornmmep; that the value of the goods wae much
in excess of that amount; that the property wae of a perishable
mature; that Pyfer & Company claimed te have o chattel mortgage
made an‘ exeeuted by Claen ag wertyager and recorded in the of fice
of the Recorder of Deeds of Goek Cownty; but complelaant was unable
te find any reeord im said office of the same. Complainant repre«
sented that the exietence of the mortgage was doubtful, but if it
414 exist it wae civen and made tor an invalid er past considera-
tien and as part of o purely evlorable and fraudulent transaction
for the pursese ef enabling Olen to evade and scirewavent the
proeeen of the sourt wand te enable the A. tT. Pyfer Company te
hold the property a trustee for Gisen; that Pyfer & dempany, after
4iepossessing the Sheriff ef Cook County, sold and dienened of
eertain of these goods and chattels, and were attempting te eel
or @iapose of the reset and reneainder of them, whieh if eoneuamated
Complainant would be let's without renedy exeept @ suit on the bend,
fibed in anid repievin euit, < wiieh bond was totally inadequate
either te setiafy the Judgment or compensate the ameunt of the
Ge04s and chattels of which the Sherirf had bean diapoeneaned,
The bill alee alleged the existence of certain debte
@ue to Olsen, and that he hed an equitable interest in certain
things and actions which it asked might be applied te the judgement
against him; that he was beneficially interested in some real esq
tate, chattels, real er of some nature or kind, ete.
The bill prayed a full and complete diseovery of the
Property belonging to the defendant Oleen; that the 4efendants
Olsen, A. Z, PYyfer & Company and Wolff be required te answer; that
the defendants Olesen and Pyfar & Company might be enjoined and reo
strained from eeliing or disposing of the property of the Judyment
debtor; that a receiver might be appointed, and for ether and
ier Peltor,
heod # Sekt? bel yaeqned 4 astyt .f .A dads [Moll Ktkw wohahiog. %
dow aew ghoaoy att Lo outev ess tors yamesen oil) Hh kWw ‘ood, ke 4
aktatebing 9 "Yo wow yYrtoqere wd dass rinwemn teat tm preeee
agaptrou Lattats » eval of bomlele ynoemne bal rong Pott, inpeny
oltto est al Hehusney bum topmy Mtoe em wea Lo we bodeoenw ‘ban &
olin: saw tanalatqnos aud sxsaved 400d to thea’ to xéitecen wal ’
swtaer SuaateLomee saeikh wilt Yo Ooltie bias mt beweet ae pant @
3é 22 del ,twtedweh aaw eyed com add "to sonetobee of inate tm dom
catebiaage desg xo baterat ne tol obem hae mevtg saw of tate ee
aolsoeeiwa# # eve Lashasa ban gidaroloe Yiotwe «, te tag ea Dee OJ
eit Inpvaws tts hae eheve of redo antisane te enoacuy wit ™
i of yasqno HOTT .F A ott ofdamm ot baw siuge os% Ye ane@eN
sos2a ,yanquod & sedyS Sous juoeLO cet woseuee sa etteRM of i
Ye bee ven tb hie blow ,ysenrg' #000. to Bipe@ ont yatene ve i
“tee ef ankiqamsia axew hoe cetebeee Ban ahoon paste toy be ; ee
be tammass one ae Hig attr ote te tehalouny ae tees mit? te oene |
sdeaod ant ste ote, * SOOKE Dy sndaudall tyedate, suet ad. Bawow. donnie te
ie xltnser fae Betod a kw it, 9 Ae ahvetans., bine at
\ ante Yo fmvome gd? efeemrquas. x0 doar het, at vhedtas, of
sboanensageth aped bad Web ae eat vie B xfs te whos sade Pilied :
aggen ahedren te sommtulns or? begnst, Wks shag Re ai Y doa
ntadxeo ah frevntet odes ipo, an bod of, taeit Saray
ote oats, xe reuten onee 0, x, as tim
ens to yrereanis age kamen fests con & bageng, ai
“9% howe bentebiae o é tam 9 tun gia o ‘etyE ban ame 8 ty
damanytert ode te ydteqany we te Bakeogn th xo ware a
| be node 50% bas ~herahonge og tage TeNkeD eT tesit y% A
The deeree recites that the court, upon scnsidering
the evidence, hearing the arguxents and teatimeny taken and heard
in open court in oeppert of the bill of complaint, finds that
it bas furisdiction of the parties and other facts alieged in the
bill ae to the recovery of Judgment, writ of execution, the levy
by the Sheriff, the replevin of the goods by the Corener on the
filing of a bond for 91,6600, and the diepossession ef the Sheriff;
that a receiver was appointed om August 271, 1974, and made an
inventory of the plants, bulbs, flowers, @te.3; that the chattel
Mortgage claimed ag a lease on the vlante, flewers, bulbs, ete.,
by the anid A. 2. Pyfer & Caonpany was null and void and of no
force and effect aa against the execution and levy, and that
Wolff as corsner, ond Pyfer & Company failed te return certain
plants, —_—s bulbs, otc., te the reesiver, in the amount of
$1,350; that the reeeiver had reverted and been discharged; that
the complainant Holland Coal Company was damaged by the action of
Pyfer & Company and the Coroner to the amount of $1410.45.
It wae therefore ordered and adjudged that defendante
Pyfer & Compeny and Osear Yolff, coroner, should pay ever to tha
Glaimant the said amount of 92420,48 and the exeeution should
fesue therefor,
Plaintiffe in errer contend that a court ef equity was
Wholly without Jurisdiction under the facte aliagea in the bili
ana feuna in the deeree, It de urged in the first Piace that the
‘Return upon the exeoution, iceuet ae set forth in the bill, was
Wholly ineufftectont to confer Jurisdiction on the court fer the
“Feasen that it wae net returned unsatisfied in whele or in part.
: Set (see Callaghan's Annotated Statutes, 1924, chapter
al thers might be werit in thie contention, That section of the
If the bill had been brought wnder Geetian 49 of the
merely declares the rule which previously existed at
gaitebienen coon , tua at deult enbisex sagegh, af, . and se
ioed dae selad gacwiveod hin edaaanay se melt wath aoe Goines . os ‘a
fad Abi ,taetgmes le Lid ert te dnemquee rt, dewron mes
ad Bh Saget adao® teil e bom aetioter ott Ie apdsekbedawh: super
ered ono ,aolasoemh te ciccw ytomunerh Bor CRO OOP, wae, oR) Mi
ent age meaetO? aid yd abou alt o-stva sors itt tune 9b
{Mitre add to aglaowecge La acd one ,000, 86 tet mad a he
ns wbeM eos MOL Le duced om Detmdogqe aawimevboveria |
sagdade sth tats 4.085 ,ecowolt ,wihat _weanky eae
yw ‘lildieaiell eeraakt. danke ade me amaed ee Bak heomnbar £ a
on Ro hap bier, bon Siem aew yaad & geet ok Man ot
soct: hor yyvad fie solteoee add teskeye ae dene Rt ie
Riattes ameter at iokiwt yomgies A te"byl fae. creases oY
bo ‘Sraponbes ait Ad, Savknoen Rat OF y cihe ( @iled BIO WOLT 9!
fast jdearwinnth awed fms hod egy hut tor Loew watt, davis, 300 ss,
To medves ed? yd Me_emed aoe tasqned: #90 dnadioh fatten
or ee Kaeted wad haw cmages so
shanti said bewbul ba dae herebte exo'temests ann te, whan. a
ent ot tare gag bivedla, promote ,TLLOW «9080 Aan. enon
hisale AOAGORe Ons dae riche bine act Sanmind
ear A adel te twee @ dead fede towne ach. areanat aa, iniate , af
ELS att ni hogeLte Btoet eel tehon oly the kurt Saad
sea daeae nr ice aettharthuaatlan we omben sth it
fig at te eLete at pal tebe oe anereyeon _— mahantl i
orld 2o OP sodued "tahay tuhssscr stood bangk ARE wilt wile ih: aaa j er
ndgosto REL saturate hadasannd wi
oistt: hee stake dash tobe aw2 ces ho an stem ot 4
eoumon law, an¢ it is ne doubt true that the rule was that the
party complainant suet, a8 a condition preestent to obtaining
relief in equity, show by hile bil] that ne has exhausted wholly
his remedy st law. This in the rule exprasned in Firet Hetiong)
Bank of Sioux City ve Gage, 7 Til. 207; Durand & Co, ve Gray,
129 Tll., 9, wd many other cases apen which the defendants rely,
That is the rule applicable where a Judgment ereditor
Seeke to reach and have applied to the satiefaction of his Judgment
the equitable estate of the debtor. However, as the complainant
here points out, there is another Line of cages which seems te
Peoognise a different sort of ereditor's bili, im whieh, it ie
gaid, the creditor ie net bound to go quite eo far as that; namely,
a bill where he simply seexs te reewve a fraudulent encumbrance
gut ef the way of his execution, The distinetion between the twe
kinds ef bills has not been very clearly defined, but it seeme that
in this latter clase of bills it is uwoneceesary to ieeue on emecu-
tion prior te the filing of the bill, Hijier ot al. vy. Devideon,
$B @i1. 918, is the leading authority as te the equitable jurisdic-
tion in this kind of bill, and the doctrine there Inia down has bean
follewed in many subsequent cases, ae in I
162 fi. 625, where the court said;
"it is first contended that thie is a erediter's bill, and
that it econnot be browzht until after the return of an execue
tion . It is however woll eettlied by the decisions
or 8 court t a bill im equity te reweve a fraudulent con-
Veyanee out of the way of an execution may be filed as acon ae
Judgment is rendered, and witneut waiting until exeeution is
returned, We ce aes 8S + on ‘hf 5 Gs r 17 Til. 2al; pi PETE. NAS 4 & wi 4 she. “ton “ee
$2 Thi, 98; Amick v, Your Vi seor
It ie next eontended that the deeree must be revereed
decause service was not obtained upon the Judgment debtor, Olesen;
mad Spear vy, Campbell, § I11. 424, and Johnson v, Huber, 134 122,
wu, are sited,
a
Pg Ye do not think, however, the judgment debtor was in
“eat $a8¢ wbW oder nste Tag ond ddwOs om OT OE Saw peed sommes
gainiadde of dustepene hols Minee @ Su seme Sanmte Cened M0
Leseith betewnttte el ea dade REIT wht qd wae ee Mipe aR INCE
“fears wt siotaleaiaas lanl oken eae ah ohne’ ‘ste Se" anieane |
th woe Peat pYoR SEE OP logae yy ae
Abie asian’ ‘e8d No hsw gegu asaet tedeo ‘erst pie orn tar 7
tei tbe taaagjbert, & supa elépok ings oket bas ek Past » Ye anne
topey het ott te aehteate ites oss of bebteqa wad) nn’ Moaored |
Sin als feos PHF ee twvewol ,tosteb oad Lo winded added dupe
ad sued sig heir wong “ko outs *oxvorm a2 wrede Vows. nando
eh th We hite we (LSE Weed ehOX TO 08 finoce Tk a oe
eekemen ptm wo Get of ot hep og OF heared bow ef” xotibore eat" —s
Soncidiagiie tim kobwott 2 wenn gt aivek ydqunte’ 6 wxoite i
eet ont saaited noltentaety wx | sitobnrbexs wht YO yaw sae Mo oe
basse wane #2 ind Hed eEeatD oa inet Hin wit Ne oa
ane omo oti vast ro pecan oo St wsTtd Ye wile” costo hw .
pve. sis ao xe tra Jttid’ bad Yo yan rey ad wd
«othe tewt etdes lupe ed ad om et trodten pathaot | oat? ot om
aged wast stoveile bial eros ote took one Nine | «ttte ty nat ea y
SIG wt aw ,vowso Savewlbude You he Bowed é
| ibiew dame eri? amenity yee" ons
af hin gf er aedtia's ‘* wf Wet? bans bowie sivod bri bdo i
ot oat sedtu Lhiay cf “2
wa ? inkoat > ged beltvan ‘tan’ : waren ah a *
rouer"l # ayowat of thepe, as site, Oe worry)
Wa a fo ie Fe ae
: cate ee, ie es ‘
bentevo% od tun aotaeh ore sic dvd ‘deen en gx"
"yanwto , totdeu pwnage al fer ‘pentards ¥ ott Baw ‘votvane © a0
My iy! oem : ‘hee ay” foe ‘ial eee” 5 B 2 ey? |
Le Shit Laie ane Be ina ee a
this case an indispenesble party. He would have been & propar
party but was not 2 natessary one, since the decree does not
purport to wet aside any conveyance made by him in which he hag
given covenants of warranty. Quinn we. Feople, 146 Tl). 276, afe
firming 45 111. App. %47.
The defendanta, pleaintiffe in error, eoint out that
material avermente of a bill in equity which are nelther admitted
ner denicd, mast be susperted by the proof; that the evidance muet
be either preserved by sertifieate or the deores must find speaifie
facts proved at the hearing which ara prime facie sufficient te
Sustain the decree; that »here « Joint decree Le rendered ogainet
two defendants and there are no allegations in the bill uven whieh
the deeree ie found against one, oF proot sgeinet one, Lt must be
Feversed aw to beth; that a deeres pre contegso aimdtoe enly the
faets properly alleged, but not that much facts autherize equitable
Pelief, or give the court Juri adiction of the subject matter,
These are elementary proporitionse, whieh may be conceded, but which
are, we think, wheliy inmaterial hore, sinee the finding of facts
in the decree and the sllegetions in the bili are, in our opinien,
sufficient te justify the relief granted,
It ie further eontended that the court erred im re-
taining juriediction to determine and settle purely snd eolely
Regal rights, and 44) it is urged that in entering « money Judg~
Bent the court deprived the defendants of their constitutional
Fight of a trial by jury, Brauer vy. Laughlin, 235 111. 268;
Taming v. Aensie, 27% Il, 132, arg eited aud relied on.
We do not think that there ie any controversy ae te
he Tule applicable in suck a ease. If the equities appearing
) “are insufficient te give the court jurisdiction, then « court of
Mquity should not proceed to give relief upon a purely legal demand
‘That, however, is not the case hore, wince the decres finds that
Pai onder ten gile dud! Wed od ee BeetoqeMe od ten
dade ae bolneaan of yaa Ho dit jaabderaogey eieditenet ree
x sensei tics’ AY oes Cae nite ae Wnt Daye th’ oat salty
Wage a Roee was biwne on eitew » fit wn avoga 288 aif’ . ae .
of eet ‘oo ted weit goute .eae trasedne 2 ‘fou 8 ae dud
wnt 44 vt tie ‘BL mht ee whan : ait Yas ore pied :
okae as hee wh a f si by ® AA ata Weale
pair
dont ee Yulee Steves al etttoalale pen ae
Sweetman eititon ode Motte given at fftt a te sieeve 2 fn be
oitiosqn Swkt deem seeds os xo eiaol tise yd bertese oy ea
od tau is et'tve pide? aaitrg eso vohde ‘gaisaed edt da beaver
jeubaga betetred af nevank daiot a ” weente! Vads joouseb as
Pe ene Lee re en ee ee
of deo 94 (ban Panlops Tooke Yo jdad Pvataye’ awe ot oonoeb
ad Glue etka genataoy deg oomweb w Yeas yaeed BF da’ bon
EMRE RS sehreNtwe wHoo't owe tame Fou tu bebo tte yekbqorG
° Seeger wee tee atte Ne ebahs the Birt duizbe a oWhg’ Xb
earns Ye yatonrt et} eoate , snr fete giedead ehtotie , shat
dosing’ Voiitee bith" Cidawt O98 a r
aot at howsn dinrom orlt tents ensii beset bles " iheilllndisiat
“gg ae grin etree eek WP Be vin aig * ‘bie er Pray
errr Tr ae wdas 24¢8e, ‘a
to Mehes ands. Jmotaeane sare set - wad vty of da ho te daiea
daeas Lenol yLouy # moaw Wohiox eviy o% baeoerq son
toad wbakY swtnoh with soate”{ va ve ‘ttf ceovored
. } chattel mortgage, under color of which defendant a, I, Pyfer
6 @iaimed, is mull end void, Having se decreed, tas
yur of equity sowld do full justice between the parties by
y ring a juigment as at law for the valua ef the property
Ae J has heen wromefuliy taken by means of a replevin writ
ebtained by filing on Anaiequate vend, |
: The deares ie just and is affirmed,
Sure’ 1, P, J*, and Jokneton, J., concur,
M a es % 4 44 te a My |
Rad jin the: yg shail the’ “ are ee ‘aie Iabes |
n ran ite ORINDA Meo We yd if wee t esi VM 4 We nt it a fos We as: ota wea ay h. ‘aint Ma bake h yey)
ails was rtd ey” os day t 435 ‘nt ed 4 | pce aay i
Lit eaten thn
ce oh! Roh has oh @ i’ ee Laake pier as
ee ae Hy a ae hay y
is Ait mays ah ra ey bh} 4 ha pene
CH ROR AT ele HOR te a pit 2a ind ong” Bil it
ee ee ee | va i.
; Kees” we tipetya wdlge?s an a the bBo tot othele Ly
onal “aielsna GY Ty. Ie Bak Gadin ‘sane’ wi
wis ree bat anime ie “soak kes ute i sae tied ; |
sietcia te shoal i soa keke ade ne wmes Haiyd t.th oy
: sbisnalce fay Hag will”
| oye ww RAE HopKONY
SCRA Ra A lal ee
(ene m lee ee
- Aik tare, ‘ga habia 1
G4 82 YOY Webhdadeaaies “pip bo we i
Pe a a |
| “hee Rm mh Ah al ono :
101 + 31230
BaB DAVIS,
Appellant,
APPEAL FROM SUPARION COURT
vs.
GF COCK COUNTY.
MISSOURI STATE LIVE
INSURANCE COMPAKY, a
Appellee, Sr aay Waa op ey
2441.A.63%
MR, JUSTICE MATCHRTYT DELIVERED THS OFLAION OF THE GOURT,
The plaintiff broweht suit ae the beneficiary of twe
Life insurance policies fated July 28, 1922, for the sum ef $5,000
@ach, itsusd on ne Life of her deceased husband, whe died on
September 7, 192%,
The defences sleaded were the general iseue, smd that
the policies were never issued, never beawws binding policles, and
that the first premium was never in fact paid.
At the close of plaintiff's evidence defendant ree
@Quested an instruction te the jury in ites faver, which the sourt
gave and mitered judgment on the verdict returned in response to
the instruction,
‘The eontrolling question im the ease is whether the
@ourt erred in directing the verdict. ‘The rule te be applied in
| @eoiding that question is well settled in thie state. It ia errer
to give such an instruetion for a defendant, where there ia any
evidence from whieh the jury could reasonably find in fuver of
the Plaintiff, and in ruling upon such motion the plaintiff is
entities to the benefit of all the evidence in her faver, eousidered
| in the arpect mort favorable to her, Likewise, the plaintiff is
e tled in such case to the benerit of all presumptions and ine
which may reasonably be drawn frou the evidence, and ven}
" story evidence or explanatory circumstances in evidence should
' Fejected. (MoCyne v. Reynolds, 283 111. 168; Hunter y, Troup,
15 Li. 203; v . Cent tt. K +» 226 Ill, app. 854;
4 Song
: RHYGD AGLTAR MOM JAMA ;
«PERIOD QAO. .
“seg ime BES
{TH0O Say %O nOLAIGO ay cami isamninre stmt’,
owe Be ‘indo dren d erie ae vine Siawend nidiindlinte’ eat
Gon, 23 ‘ta meh ons ted ,RHEL .ae ydet hoteh aetodieg soanerenl
ae bolt eae »bantews, penance wos, ‘ya RAL at we ewan d ,
oPROE hb :
sath be — Lareamy oct etaw Dobaote Beene toh ll
ui pipet r ic
biag tent of Wwrea wow myinexy tevk't <a
“ot taoban teh sounkive st Yttsatate Ya eeoke ante aa a
duwrae ost olde ,towat si ad yout eds of neksouveuad 0 |
) wi ‘bens od ot aLue ot? BOTS, Oh
aotse ab $3 setade elds ah boftten Liaw i sokbeany ‘sae
eae | at erent erate ,~tnadonteh a te? aaktorstent, ma ®
at Yr tale te an? oohveu dove soqw galtes a bas qineeaia
horebianse ,tovet ton mk saoohive oat fe Yo od dind ane of nore
gi Vilsatete ast walwedid sued oF efddrovn't thom foedgne & : |
«uk bam otoltamuwotq Sfo Yo dttened wae of ened Mowe wh a. :
atom ew avneunieon ond mott amemh wet i mga "ae
Eastern Yermers' Grain Co, v.. Yernandes Grain ¢o., 2%) I11, App. LO®.)
Could a jury reasonably find frem the evidence in this
reeord that « contract of ineursanee had been in feet made? In
considering that question, it ia coneeded by the parties that the
game principles and rules should be applied as would be applicable
in determining the existence or non-existence of any other contract,
The facte 4iselesed by the avidenece are as follewa:
The defendant Life Ineurarnce company Kae ite home of-
fiee at St. Louie, Uiasourt. At the time of the transactions out
of which thie controversy sriees it was represented at Springfield,
Thlinois, by one Y. DP, Stacy, general agent. Om the iSth of
July, 1997, at Oreatur, Tlitnoeie, Arthur Davis, the deesased hus-
band of the plaintiff, through ’r. Stacy, mode an appiieation in
writing for two life insurance policies of the Ordinary Life Non-
Participating Pien, the annusl premium upon such policios being
$309. The application stated that the applicant hed not paid the
agent anything. The application further provided:
"(e) That if the first prenlwe for the insurance nereby
applied for be not paid te the agent at the time of waking thie
application, or if the policy be ivsued for a less amount or on
any other plan than that for woilch this application is made, the.
insurance shall not be effective witil the policy is delivered te
and secepted by me and the firet premiua thereon setually paid
during my lifetiae and centinued in good health, but upen such
very, acceptance and payment during my lifetime ond sontinued
goed health the policy shall be deemed to have taken effect from
ana shall bear the date of approval at the fiome Office or other
date specifically requested by the applicant, on which date in
ny year thereafter eubsequent prewhume will be due and pay
e.
The application wae examined en Iuly Lath, and because
of faete disclosed thereby, the company segured a further partial
examination ané declined to ineve the poliey ae requested in the
application, but approved it for “hat was known as a Table IIl
anise, Yorm A. policy, with no extenied ineurance and for an an-
—~ Premium of $437.60,
yi
q a
ey ee
Twe policies of this kind were sent to tir. Stacy,
ee ee
— ln oe. OS eer
{802 .oqs .ff0 2 ,.90 pins peponoset 7 00 abort Cine.
aldt ot senebive edt next batt damoneot copy" ae
at %ehan test at neod hast woaert ead Yo tomttace « sat “eons
ou judd dokdcng 000 <t bodeones at th + tolseouy saat a Phe i
ofing? toe od bivow ox hetlogs ef biwode we dit Sas ‘Gildiontre ae
Soartean mite yaa Ya foteiaixeaton 16 gonctaixe edt yatalaretod r
tawalier ee ein aoaohtve odd ed hovelonth ateat ox” it
«te eaten wat Bast enenee wonerues) wth toubasted ont
ture natok tome wnat ade te oat pas 1a vhtuonadit | attyod 3 +8 ta el
bLwd gates de ha gmonyz ges ed a aontta yerovotrnos at At Ae ht 3
te wGl es? wo .tuoge Levensn: ,goet® .@ © mits Wage ont
_ sana Desneneh off ,elvad xutdsa sohonkeet, tad ased, ss ater an
wat wobinn tique, se alam a eoore ad Aeros aha, me, 2am ti
pee @LLt yrankheO wt Ye goto hog. fovenuamt eR ows rt sot nat rr
gated solatfog dom soqy mlnatq Fao crs ane peeve aise
wait blag dors Fos nee thagn one Sanat botage moninn ie we ast ae
; woveneinine oh OR sway oat neltaatiegs ext AMF san :
wred enamine og “ot. eurdoerg sa2t't oxid as vim :
rom gr somali yy set Bouse ad’ yeliog aad tt ie. no bee 8, » 7
wit (obiia ot meliead tinge eldar poke eet tad ais wees
ot beteviteh wf tee ie etd YM he: sriape tty od pelle Lap uaimabiab:
pind ar ee winch be boos gp Bos eae gr Kenpod eth Bi
Saeet feet See eae ‘it inod be
gosto <@ GOLTED omol! wl? “te Love eae ie tinct &
mild cs heveauper yi le
sean “gat
ai gtat dolsiv mo , demo Ada
vo hile eee oe CL oie en
fauened, bien 9 MORE xiv ne pomrenny oem mn, nakpaeshinn oft at ie
Lolting Tadd? & bewnan vieunes 9Ae a xdanel weet
oct ah hotnonpet ae qwrLog eid, eerend oF honttonh, dae mn
ELE altel a ae meron, ae, tate 0%, Oh Raverana dud ig aie
ne a toe baw, enneesand, aieaeniuad sentin ns sa okt
— 98 1008 9
oe te ate a ning et ee
general agent, at Springfield. Defendant directed Mr. Gteey that
the policies must not be delivered witil the attention of the ape
Plicant wae cnlled to theee changes. At the time thet Steoy teek
the application for the insurance he aleao accented twe notes of
the applicant for $109 and S200, respectively, which im the agere-
gate represented the anount of the firet year's premium on the
policies upon the basie on which the spplication was made. It was
the custom of Stacey thus te accept notes from applicante for in-
surance,
At thie time Arthur Davis was in the Shrine cireus
business at Zort Wayne, indiana. Thies business at different times
during the summer took him to Springfield, Tllineis, and Deeatur,
~Tllineis, and the negotiations with Stacy for thie insurance were
Garried on at these places, While these negotiations were pending
Er. Stacy met Hr. and wre. Davie at the poeteffice in Deeatur and
talked’ with them about this inaurancs. rs, Davie said that she
‘ 4idn't think that Mr. Davie could af'ferd it right at that time, and
Br. Stacy replied that it would be all right, eaying, "I will take
4 Gere of it. { will put the notes in the vault and ne one needs to
know anything akeut it.% re, Davie 444 not think that this ovght
= be done, and she told Stacy that she didn't think that kr, Davie
mons give the notes; that she wanted him to pay, if he was going
S take the policy to take it up. ir. Stacy said that it was pore
ali right with him, that he should take care of it, and that
Kr. Davie could not pay up right at the time when it wae due, he
renew the notes. She anid that Mr. Davie should net pay the
out; that he needed the money for his business; but Stacy
| thet was all right, he would take care of it; he would put the
in his vault and send the money on to the company, “He said
@ would take care of the notes and keep them, Mr. Staey said he
Weld take Kr. Davis! notes, we sald he wanted to take hie notes:
‘tant woah tH Dednexth fanbase “bio Pgaheat te “stamys |
“4s add ‘es mottin tes anit it tw netevE tod od ton sous eo lott i
toad yond taza ames wie ah epainats onoutt ne. Dette. saw
Me eatee ont bedanonn on ie at soamnennt ost at motte
“Hae ial we Ho bite Uevileonens 0086 Seca core wo? a 3 Legs, 0
ont ne ma asa 2 a” THe y fount sg cd Hues eae detgooenges et
ase at ere! ane nettao ttage ers tip bets bie atend wae as ae teds
“nk ech pdewetican ox aston sqnooe 08. eustd ae. ae ' :
“ gworts oute out ‘at tow “alye dt oe ane ek sel fn
soaks upto VEDA fis svontaus aed vasa tbat soya sxot a Biss,
-tudaoet ete yetontict Blortgatzet oF abe How? temawe hema yf tees bar
orev pomiuvead © hss xt wore nbae auoitetsoyen oat ne
pulbave orew waoIsivogon ouems ene : sae00k ouons 2
Sony
2 mee n
baa sidaoec at vo frtotaod ont ad alvad eth bas . mm foe Rees
| ou tana baie’ eyed aati soonarwect ene snode aed oie es
Saw oto baat od digit vi bros Sivoo, aivot i toa Anta, 2
ont thtw et sont «tty Be onal ahd fiver $8 test be (oe, yaa
of aheost eine et bee O Lise one ak ee don oie bball m2
tye wait esse ante tow hae wwe one: Ad sual ad :
wbves tail wenice 2 rt: oie sets wowes tee sia ny
yet bare at ae ‘yee oo wate asda oie todd “yeeton |
<9 wow eb suste bik pose, ae ee 2 ‘tes oo wentog ody
basis ie tt te otoo ony b duvocia wel daseid sate oa} ed ‘Satya fhe 3
on vent ane on ander oane ouit te igh qt we toa. Meo aivad er
oe wa tos bdwosie atvat “Ui tnt hao ola anton ae ‘Shaty, :
| wenet ‘tud ‘sunomiawd ala xo canon ous bebvon oxi "i on dasld pone
ont tq bixow oa wh 19 orn. “oaad & hisew ‘ot tis Le e a
bien ei .yanqmos auld o¢ a0 cones od} bags is tua ala a
erommener mre coed baw esdon oath ea ee aad oe
nr tonial es ai ak Cie mre
‘ane eh ound ‘ot pee ah biae a” ws Vg al
oat
that Hr. Davie didn't know to whom to pay it. a would take sharge
ef the notes, We would renew them and give Art a11 the time he
wanted."
Porter Y. Pemberton was engagedt in the clireuns besineses
with Arthur Pavis. In the summer of 19292 and after the policies in
question vere in the hands of Stacy, \r. Pewberton met Stacy, whom
he knew, at the railread station in SevingfieLd, Tliinoia, At that
time Arthur Davie was in Chicage, Mr. Pemberton saye that at that
time Kr. Stacy told Mim, Pemberton, that he, Stasy, was going te
Port VYayne, Indiana, where Er, Davin was to atage « Sarine olireus.
‘Pemberton told Stacy that xr. Davia was not in Fort Wayne at that
‘time; that he was in Chicago, and that if Stacey wanted to see Mr.
Davin he should go te Chienge. Stacy replied that he would not go
te Chicago; that he would ge down to Fort Yayne where the oireus
wee ana see Davies,
Stacy ashed Pemberton at that time if he, Pemberton,
war geing te see Mr. Davie when he went back to Cuicagg, and Peme
varton told him, "Yeo." Stacy then told Peoberton te tell Mr. Davis
that hethad his insurance all fixed un for him, The only difference
wae at « higher rate 4ue te some shortness or overweight, er somte
s
te thet effeet, wii that when he came te Fort Yayne he would
. the matter. Mr, Stacy explained appremimately or presisely
he difference in the premium of the policy te be lenued from that
| +" Stacy told Pemberton “te tell Art” (meaning or. Davia) that.
‘ The next day Pemberton saw Davis and teld him what Staey
1 woia and Davie replied, not in exact words but ewbetantially,
it was all right, and he wan glad that it wae fixed up. Pem-
alse told Davie sbout the other arrengements that they
Stacy an4 Davia) were to meet in another place afterwards,
+ Davin said something about fixing up a note as near as he
Ld remecber it or understand it; that he had given BAL Staey
pptade. ied Aironet «fh waa ed wome of wat, nb atvet at
oe wnat add Lin 4d ov ly bre med weno bhwew on “et
Romp wpat a
ab ne ivitog ga xefte bas ener 1 re tna ‘ods - : gore" vw
ANG Sep a
neler eet Pet sos rodent es coast ‘te absunst ont at orew
i Bs aes 49
pans gd .atoalist bhoitgat at | mk aoidate haoatter ‘ont te. (wes
teeta tp tats eyar cio te teat, a ones 10 ab ow elves “wud ch
of yntoy aay ,yoose , om tart Hobtetea’ vata blot wets. we
Lagonia onbqit senate of saw olvat .2e oteite omalbal soit
paelt te eugal sxot ab gon ane a trad am asid wale ee tose
‘a we 4h
ENG
a
oe A BOM OF bedaaw one u,, fae ae segen at naw od
RES <h He SOR ie
iy ton binor od Jace be hig pene sniyse te of °3 i
4 ie
Ghat fijay
athe, 2S arte ce ome” ta.0% ot soot bie hinow hie: hth.
q, WN tm
il wn 3h pany rostt ta canent: phages ol
sin OOF tenet? 9 inet 208 od none utvad Pe of aa.
wired, xa ite? of anerodive bios weit geet ee |
senonernsh tna ax att ot gm hot? ie sommmnal ot |
oaon te gata teeneve, *e naonocoste onos ot sub etme ‘goithd § j
paar ok ree” dro as inns od nar tact be toate da
_ Ylantowzs ¥ yindaatne tans poakeLaRo watt a retort ‘
_ hate wort peyenk ad a? ohton oat 40 sais bao sie nt
. od® orn ‘bites ‘yond * ’
: sans! (etyes +m gutanen) et tier .
sail abd hiot hata aivat mas “aodan doin’ ah sand wae | Bs | |
An seh 20s ntie tue abrow donne at ‘tom he heat ‘Sivatt Bila tae
| et a box eae ae soni hada Raw ‘a bid ty ta ct al #2 Sli |
war ais Agasuenaneee caddie oat haade “nivat fied "0 Ha
; abtoymerte ove fa odd one ab “goon of den’ ‘Walvea’s
m ot oe won an oton ° A pate ht twee iultedh Test - J
Wh nt iio be RTE WNT a
i ini 3 Sa
wes 88 orto tat pd, tant (82 baad
ar re ae ee Soda raed vat wr
Fit Lae
et
A
ware
_ for the premium at the original rate; but Staer and Davie aid
iH mot meet at the appointed place. Pe:berton sayo that Davia sald
t @ubsatantially to him, "That's all right. I om glad it is fixed up.*
it
%
Pemberton had naver had any business whatever with
Stacy; he woe conceseion manager of the Arthur Davie Amusement
Company, wid had an interest in the conecesaien end of Lt only; he was
Working on a percentage basis, ant he conducted the concessions in-
dependently as Sis on business. Ae had known iir, Davie nrior te
“his death probably three or four years. Ha And met Gtaey every day
er might of a week in which the olreus was given st Springfield.
He nayn that he was with Gtaey at the railroad station for fifteen
i
if ip
mutes, anf that he dees net reoall having hed a conversation prior
that time with Kr. Stacy shout thie insurance. Davia Ald net
anything about any note, and Penberton never Rad any further
erestion with Kr. Stacy about the polioy, He teatified that
414 net know whether Davie ever gave a note fer the inereasad
dum or net. Davis, the evidence indicates, wan and continued to
in good health up to the time he met his death in an accident,
On Gotobar 14, 1922, after the death of Davis, the dew
nt refused a tender from the attomey for the plaintiff tenefi«
of m cashier's cheek for the sum of $238.61, renreaenting the -
Terence in preniua between the pelieies apelisd for and the ones
were in fact sent by defendant to Stacy,
; 6n Septexbor 13, 192%, after the deat of Arthur Davis,
he policies, whieh had up te that time been in the possension of
r. Stacy, were wy him returned to the home office at St. Lewis,
: on September 15, 1922, the defendant eompany, in response te a
from the attorney for the plaintiff, wrote in part am fole
“The application to us was for $10,000 for two noliciles of
cach, ani vag dated at Decatur, I1li., July 15, 1922, the
ideation was for two policies on the Ordinary Life Hen.
Pating Plan, an4 the annual premiwn on such policten is
fib weet: Bi: wang Fel 7 ORME. Last Pek he aelh ply tai tiamney! att scot nt ‘ik
i Agee #4
Bbw ébeatt doris west frottedane “ene de bodatonge ‘wit to ts tone
F ae ih
aired pom ‘ee os bode ne sdb 1 he mY tans” aah ae takai
| Site Hevedace vabatond yim tod tavda Sad woatedas® sedate
amis advent teat O62 Lo dopant ‘ea than ihe
aa we veda” oe he (sie ao lvave ston wie’ Ls tedweba2’ he th tad ban
ant enoloneanos mt Retovbann od Bail’ ‘ehahd bgaradenbg’ a i
tie belie diver lo nea BoA ad Sendai’ sa hited
dette Ye bed qaveR iit aioe ‘has feed “buil'ed itt -
fast babiigeed of .wekhen est anade wade te wa
heomteat att tet ofan o wrey deve Wivell aedtes :
ee Neh don ‘Wit “om seoten thal soannr¥e olf” “ial” .
Stnettoon ms ad ‘ond ade Soin oat ombt elt of ww Mt toe sok
Hiern y o Nie fia My
‘Lin ods jat'vas Ye agian of caste nee Oe tedotoo ao
atiawey Vike rade ty oy 16% “oar orden odd ‘wort xeboes ar
1
od Rake ewaeietiors 1 fd0tS¢ to one ous 40h aoeite aly
vite sai bees aed Svitoge watodtog ead pl auknrs
if sgn Raver Ge. BER
yaad of sombsm toe lhe aaah teat
| Ee 8) es eed Bi aaa
TEPER aes sea Lip
deren te douk ost taste Ok 18k oot ee
wig Jae by
art ot
sora os
ie ial wet ah amet omit fast od ae bod
tine ao ne we
vehied te da wate rae wid ot bonnes mba ibd xd oxen
ee Me
a of aniiogne nt remegnee “danha tod euls MROL she
nares a: te ne ‘fe
whe bd tee at eco Miadedg odd a0
ge eye8 be Tae YB RNR Mint hid
he FONG
“he bolloston ow? ot 900,048 0 4 of at ae
itt POOR: RL gia poh: Re ee . i
ato HELE ytent hero seit me aololog owt tet wow motsao tiac
at wotolten oun ae owkmete Lewnon off fae om lS gaitagte.
$209.00 per annum, In the application the applicant enld@ he
had not paid the agent anytuing.
The application wae exexined on the 13th of July, aid
this exeminution ia Part Ik of our avplication, Beaause of
the facte disclosed in that exanination this campeny eecured
@ further partial examination and declined te leave the
liey in aacordance with the application, but did sgsreve
t on « Table [21 basis, Form A. with no extended ineuwranee,
and fer am eanziual promiwsa of $457.00, and ieauet two polie
giee of that kind, sending thes te Mr, Stacy, cur General
Agent at Soringfield, and galled hin atteition te this
change, ond directed that the polleies must not be delivered
wntil the attention of the aopiicunt «as called te these
changes. ;
Mr. Gtaey advises that he had not had an opportunity te
present thees policiear to the apeiicant, and adviee him ef th e
action of the Company.
Wr. Gtacy at the time of making the arciication, as we
are now advised, tack two notes, one for 5100.00 and ene for
$200.00, and we are today Faques ting him to return these notes
te the nrener representative of ir. Davie, innemuch as these
notes were made payable to the order of %, BD. Stney.*
| We have reeited the muterial evidence in time sequence
and are gonetrained te hold that it wae tneulfictent to require
any material iseue to be submitted to the jury. An examination
ef the written application diacleses that (t was in the eon tewolae
tien of the parties that inaurance might pessibiy be isened en #
; @ifferent plan than that for which the application wae made, ‘The
application expressly states tae conditions upen whies euch differ
mit policies, if issued, sheuld become effective. Three eondti«-
tions were expressed « first, that the poliey should be delivered
! te the apslicant: second, that it should be accented by him; and,
q third, that the iret greniwum shouwlé actually be paid turing the
4 Lifetine of the applicant.
q When the policies eued om were tranaaitted by the
| defentant ta ite agent, Stacy, it added the further direeation tha t
the ehanges in the policies should be galled to the attention ef
the applicant before it wae dwlivered. If we semme thet Stacy,
as general agent, had authority te waive the condition as to the
| Payment of the firat preaiwm, that he might extend credit on his
own Tosponaibility, or if we further sesune ‘that & watvel dee
ost bios $nao Lange ould ties ont at smc xo" ¢ 000088.
% to dee beat 4 aks <t
bisa. Sw ie ote ay nee aa ao iiogn i
te a sav $9 yw tie te ra dat 8 ok
arenes > Lavoksmte, m nfaath
ae Se bud eae bee re serge te ket
wveenes ib tue ytinkdeod Sogn @
oom at EE hedies edie tim ON Hi" OA ew. ee Bee:
wh lee heed fogmek & ati SBPG. ‘te wus Long } lege ge
inreied muse , poet eer emt oat ws te #
RA ob Wadi carie ahs bediag b
‘pewarion ef i int “heager ih ban’
“gon gaum solo tion eds
vaods of hoiiao war semoisogn wie to aw itastie ott
of ythavttenad as bog ian ded, od tat, contebe, ek
@ ¢% te mid eatehe Vi » Paeo lies aus oF ie Fa
se arpietec9! ads 2a
ov he WHO RPbo ETige wilt ynkslense he ond? esd ta boy il .
ok.oae bee 9O,.60£° aol. e Reson ype
oH Seed ataset of wid on taauped why s hota hay
waned sian ‘_) yt ait
*Ofonee oe yt acbe eat {onan
BEAM EDSR ahs mY woah ive’ bey busts att bes boe' eva ov
eriuget oF vento tYiveal bee 92 dad? hood ob bontwetin 9a
esbibinnieres wh seit ent 69 hoabhapnd ~ Ayo shiek ‘horas .
ay “Wie. eae
‘ ahoar mae Meriso Linge eid’ Ko Raw ‘0% ies’ ‘puis wig ts
emoTtis Meee vo kte moa! snolsthitoa our bsdisndal Peery:
tik ads rene :, pis |
ont ee Lphdrnmnadte oun gt + Fee si wa” apg
er eed tame | yea
! haven wth yy
webb bis) "Blut oie ar Shaded to FS us
eat of un aolsibane sat eviey ot wea he stage, ’
bes ad tete “baw te ‘fae ‘eal’ ‘tant “s ae
UR) fae heats ve ye NAS sss
ay po lotion ie ae ‘atl Sieeeinnn . iat Shin i bins OS vk an he ht
livery of the policiter was unnecessary, the evidenoe #till comes
shert of presenting a queetion for the eonsideration of the fury,
for the reason, among others, that 14 doen not discloses a waiver
by Stacy of the payment of the firat premium, but on the contrary
tends to prove an sgreament acqeording ts the terme of whien the
payment wae te be made through the acceptance by Stacy of the
notes of the applicant; and there is net a acintilla of evidence
tending to show that the parties intended any delivery of the
policies te be other than manual, while there ie an entire abe
sence of evidence tending to show that Davia ever in fact ace
ceoted the policies om which auit ie brought.
The evidence of ire. Davis on the question of payment
of the firet premium teria te show, sot a waiver of the payment
but an agreement by whieh, through the use of the notes of Davia,
payment war te be made, Mer testimony im positively te the of
feet that Stacy agreed te take the netes of Davie and renew them
‘Af necessary, he, Stacy, advancing the noceesary funde to pay the
Premium. That clear evidence makee Lt lopoerible to Believe that
Davie ever for a moment supposed that the pelicies veuld be in
effect until hie netes for the smeunt of the first premiwe had
been delivered to Gtaoy. He d4i4 not make and deliver the netes te
“meet the payment of the premium for the policies offered; he aid
net offer to do se, nor when informed by Pemberton, at Stacy's
“Pequest, that policies of a different kind than those apolied fer
t offered, did he say to Pemberton that he would axeoute these
Rotes or communicate further with Stacy about it, ner request
erton te do so.
The briets and arguments of the parties discuss at —
the supposed agency of Pesiberton, If we grant that tt may
inferred from the evidence that Stacy intented te make Perberton
agent te commmicate an offer to Davia, there is no evidenes
| mY
women Site osaehive sf ,yteeasgenmy now aatoklog ont to eter ht .
sete otf Yo mabdeted bate wet tor mo tome aw ‘pet smn one YO rede
bevbie: & seolomth Pon we ph # rode sets tte ‘anome Fikes ome tot t
Sas D. out hin aud Re Bone testi’? bind ve “tommmen wit Yo neds we i
kt ko Bator ts aermed oxtd oo yitioxooes n Ls ed ovens or-ebast
“gult te yeaa yd nenadqwota anit startet bien wa ee one sunaeeg
fosehive “te #ikitaton a tea et wrens ae itawo tiene nas ke estos 1
ond ko YxOTL io yam Mohanta! nekstam oce suse route on aaisaes
* ale Wek ae wd wuts otis Iwusines mats rodse od Pi setoniog i
=e fao at tare ebwat sana wos ot yakban ooanbive Ye songs 4
: ; sfiiquond ma twa se how am antoiiog oe tegene :
photon aotsennp oMld 0 mira aX te eonebive oat oF 4
suworyag eat ‘te avis * shed «08a os enned is Lore oer) ‘emt te
: eivad ‘te aston ent 7 1% oe aa egarotet +o ibe w tunmoerse oe tod. a
oe wit os ylovts lace al enon vaed wr obom ad ey “ner ¢ rayne |
Sih RORY oh Re ane
fa gt woaer bia, aived te netoa eae es ot bentne onge
oat we oF bout vesanogem ous atoaovhe Bo cor papas |
_ fast ove hio’ ag elt tnaoqnt $2 nedem soneh ive santo teat rong
heat septa souk ‘ans ro Yew 005 ont x0 ‘asdon ari Pi
eC ee
ot eaten wit wev Esoh bas oe, ton fst om eons * boserhiod nod |
@ Oe We ee
hie ost phomy tho as tetiog eu? xe smteore ous to snomwee om a”
me ey
a goede ta snelre dae w domo ase 190 408 oh ‘oo te
hoy kyu
tot Softens enndt sade bekal dawre'V'E Be ‘ te wototion send . teem a
Xo he iy pa a
wrens stuoeme biuew oa Jailed ot um as vee “ga be shore" to i orew
Res ay pe
$avuper nos tl suede od sate rede réao tucamed 40.
ve BU) ecm Oo a By peep Lal
f i i net ab a
x) peryshaig,
ta anvonld oltmeg outs te epeoewete hue 5 wtedad oat ‘a
/ we ba ea kB Reel Le bth i ‘ }
yen th salt trary ow XX -A0t 19404 we Konwge heronnre ont fuse
* Ne Raa sli va AN , Rae oe
nossa dint ota ot behand ak oF test? non tee ont moet bers ed
wee Kee + one it in, ted mi Read bia Fai
bemphive om e oxasid nae oe “eTto me wien Renna ) oe
PGE as RET RE | m as pe ale reas me q
im the recor’ from “hioh a fury eowld reasonably infer that he was
made the agent to receive the reply of Dewle to that offer, er
that he wae in any way authorized to sleae up the transaction, He
Was not intruste4 with the pelictes, Indeed, the evidence faile to
@isclese that he het any Aefinite knowledge of what the policies
@eontained, or of the respects in which theee policies 4iffored
from those for which Davis had applied.
fe think ma more can be inferred from the evidence on
this point than a requast vy Stacy to Pemberton to tell Davis that
the policies avsited hie acceptance er rejection. ‘Tne evidence of
Pemberton is to the effect that Stacy sald to him in substance that
when he (meaning Bavis) came to Fort Wayne he would arrange the
Batter. Pemberton also testifies that Davie replied substantially
that it was #11 right and he wes glad that it was fixed us, but
this, in connection with all the other evidence, oan reasonably
wean no wore than the affirmance by Davie that he would be ready to
mect Staey at Fort Yayne ond there arrange the whole matter. I¢
ts apparent that if it hed been the intention of the parties that
the conmunication from Stacy te Davie, through Pemberton, and ite
a ptance by Davie, should conclude the contrast, there would be
ne occasion for a trip to Yort Yayne on the part of Stacy. Indeed,
our opinion the utmest authority for Pemberton, which ean be
Ho jury sould reasonably find from this testimeny that
S38 Was the intention of either of the parties that the conversation
Davis and Pombertom should reault in «a binding contract.
both Pemberton and Davis se undorstecd it ts invicated by the
that eo far ae the evidence discloses, Pexberton never come
ASated to Stacy the reply of Davis, and apparently 414 not
nk that there was any duty resting uoon him to 4o a0. .
= ata
cea rte — aati Rat a rd ee
Saar ee
‘easy qaamtswes eats wovt Hal? esdardnont bbuoe eek soci onan
e)
oar sol tat wink qddanoenes. hises seh mw ay hele mek freeee eal?)
te pue Pie sadt oF whwad Vo UE ee toate ev inges 9d dane eit oath
OF job tooemeed emf qe shots of bestiedtin you eae mt, newer
“Ob aie eommbive oc heahal sae ted ied oad dt hw bopeintah tone
ehintion es? Satw te age teen et iat'teb eae: peat wed tant ounton
“poreNE Re wb tnt Low eeene dpide ah eteeqeatorst Be ter bomtnge
rs ha btqge bast eivet) Me deie wet ssogd me
ao Ghachive AF wet betietal o¢ ase ovom om Maka OP of yal) aed
tan? aivetl Lied 02 aodvedaed of yondioyd seempat a wads dutoqied
te sdtnhire eat waetdos tor to ousntquege’ wid bed Lowe. aoiohiog &
fants sonsto tue ah mld eo biae Yoase vault soot'te ot oF ad aod spde
ee wpanree Bluow vet sayew geet oF) emme. (otrad gatneen) oat a
keh nwtedve pokiqes abwat dead? so2t ideas cede meg rede on
Sud (oe beats baw 2h Sars badg eee pel bre | teghe dhe gow Sb oe
etihasannt Me poenebl we vaste eit Sle, abe sehsoosneo mb yeh
ot eiaet od biwow en sans ebeot ys wpmnont tte ect tame amon om
92 $ee daw b koe ont ogaorm evens tap suey tvok dm nade te
deat ae keine ext” ‘te mobt ond ad ackt med bad ab TU tat soem
att the hosted stafencds ekvanl ot yew dt) mont mo RR
#0 Mitow wrod? ,fomrinoe o1l9 shy Lows bivorie 4 mtwane odd
‘"Seebal ° Seg Ye eeeq oth no eayeW dro at lat 4 tot notnagae’
9d mae Sabie prapietael vob ahh wie veas tnomey out motalge wo:
a be foe 08 anil: ene Ba tend wD, pou hive nc8 sett bor
neiivevernan ont Jedd doting odd to metho be maldaedel matt om
stoatinos gukbald « at siveer biwace 03 20 dasph bow ebvadoap “s
oct yd Detnothak at 32 bootesabow on mado haw aotxs det shes ‘
nitoo TOYO aodtedael ,eseesonth sonebive eit oe A cm asd,
‘dom BL vy idnowegds Daw abv Ro eqn aM? Neeate a8. " Sag is
“9 et ob oF mae woe aaleeer s atiaaatenilaiaindathe ‘ ll
SLR
AN agreement which results in e sontreaet suet be mutual,
T@ defendant vas bound, then Davin wae bound, Ooen the facta
dinclosed here, would it be for a moment contended that the Ineuranece
Company could have recovered in a ault against Davie the amownt of
the premivus on these policles? It ie apparent that the anewer must
be in the negative. Davis vas not bound; therefore the Ineurance
Gompany wae net bound. ‘The evidence faile te disclose that there
Was eae meeting of the minds of the parties, or « definite agreenent
Detween then as to terns,
| Because the evidence discloses that there was ne proe
Vision fer the payment of the preuium on these policies in the scanner
agreed wnen, because from the whole evidences submitted it is apparent
“that there was ne delivery of the policies, and beeause the evidence
gate to disclose facts frem which «a Jury sould ressonably find that
ie minds of the parties met in regard to the terwa of the policies,
“the inetruetion to return a verdict for t@efendant wae property given.
= Plaintiff aleo contends that the defendant ie preeluded
fron setting up a detonse other than that stated tu ite Letter ree
: Hot » 960. 8, 28a;
d Re He CO. VW. Seitz, 214 Tli. 360, und other elmiloxy oases are
: ‘ ted to this point. The letter, however, is net inconsitatent with
defense that there was no contract between the parties, The
cited are net applicable. (Sea 15 Corpus Juris, 609, sea. a.)
The judgment is affirmed.
AVFIRKED.
y, P. J., and Jonnaton, J., concur,
4 ek: Huse ° MH ry M Bite a ‘ Me lt Wh
kooctue vt Tae eeartwee w at eee de lew gosmoet
Ce ee ee oe yee wareaaanealh
sornsxved! salt teat hehrwtooy tieaem ‘a Ot od 22 Siew adit ‘botin tea!
to terdne 28e ahead teaheyw Chew « wh bexeveow' oval B from ‘xtibeh
Joum rewnius exit cat drowaas al 9T eelekley sawiiy te Wmirtiiotd ei
sommeal nd) ecahertodt (haved ton wae wrwatt SowNtaigen Walt WE
gtast Judd edelueth of altar pomwnive watt’ wibisisd” Fite! alate Guill
vases haaainaie icsssingepingalleaoscupliwnpiigel
r isle ecole ye : yoo tae lam th i
ee ee a ee
Sotmnm wie at weiellog eeedd wo ta thncey we YO Fimmy, ly i Wee
snomenst et a2 Sore kevin poms ive ofadw ake hott souesi © foes’ hoor
| gonmhitve oul @reondd Kas ee tobton pitt to Gov tten" ba haw emeitd” bai
(ait ba ehtaenhor hikes Ceot a ite tite inet SesH “anatdalh os alt
| ean be hinges To earnad ott (bt baege at cam oo ttay odd YO ebnaa’s
story ylenqete naw faahas'taht Cor Korbene a tite ole ata ai
keke tiony 02 tamtnatan wite omny unacnids “ewsareledEnie?® (00 Oh
«d% Medtek whl owl Ketade feed nas te | boomed sat sabe ie
ddim deotedonownh son ak wovewed puntwok ext © ianeaan arate
Oa pte bing att anewod dee ninve am weme ored badd omaiee®
(.008 one .90P pe kmeh enyrd OL aoe) ohintseyn toa oem Sultte vita
domed tke of —- Fe cise snisii
yt? lala: ERE 0 LSE NORE CRD 4 Alby diss Mai, ets A Se
ak She aR One aR, ‘taal: ant
PO) Meee mae. MN hi OR eA) a) Chou I YA
pyiaciad an at iclel a Leanne’ yARP retin: Me: ner !
Aaa un a a ad ON 0 I A MO A ak aA ya, iy RO vans Age cc
sosonis onmprossans cunck-omeannrh captain: wate tdiie AON iat a i to
Dari ARR Oh i A ANE mr Biting a ann i: amet ‘ mele SE as
ve om TMU Wo NY eee ra hid a na ait ei 4
119 + 31248
GUARDIAN NATIONAL BABK OF }
CHICAGO,
Appeliant, APPEAL FROM MUMICTPAL
ve ) COURT OF CHICAGO.
RP. Ie LuwIs MPS. GOe, (a
@erporation), and STANDARD »
TRUST & savines B BARK, 4AA
Appellees. Ss «<
BR. JUSTICE MATCHETT DULIVGREL: THe OPINION GF THR GOURT.
Thies appeal is by the plointiff in « replevin euit
from a judgment for defendant entered on the finding of the
court.
The material facts are not disputed and appear to
‘be that a bonk im Onio sent seven dends of the por value of
$1,000 each and by their terme payable te bearer to the plain-
tiff bank st Chiesgo. VPlaintify delivered these vonda te
Hyney Emerson & Company, a bond houwe. t tdeing mn truet receipt
therefor, by which Hyney Smerason & Company undertoek to hold
the bonds as bailee for the account of plaintiff and subject
to ites order, By the terme of this receipt, Hyney Omereon &
yaad further undertook to ruturn the bonds to plaintiff
om September 12, 1928.
i These bonds were not returned and have met been paid
fer. On the contrary, on or about September 15, 1928, the
defendant. Pe J» Lewis Monufveturing Company, through the
‘deter Standerd Trust & °lavings Bank, received there bonds
| ‘ag transaction which the defendanta ineiet esmounted te a
Du but which pl<intirff argues was in fact in the nature
loan, decnuse of on agreement in writing delivered at the
I
i nebo aan analy acai ae
it | aah -_ OTRO rv . ay | pt “
ot Q ih oo ie" pag awe
1 a \ c im ae! h pee my sasestegts
| es es Ohi EN: 337 AE Pier te es
u] ena ART WO KO rote ont «oMmav i” eTURO TAR amet
Gabe! Qe yom,”
ai pia oo 2 RA midemnats oa xe ck mE e5ge alah CaN ala
Os TO AY Od me deemaeD Vidiilbai Rompouh 4
af teeges oun kedugate 262 e4s ato? Reptiles sale at
te pakew coq ost) Re chaod sovbe toes aaO mt ated @ daed
“titeie SA OF TomEd Od oLaweng sed thesld Yo hme soe BO%
| OF whned Cue SereTiien Vedimiagi <ogeotdd ta dang n
febeors Saute a puddles oayed Smee ar egnageed. weenie ws
ALowd of Meotasbaw veegaed A aoumeme gory
footeue hee Wtenbace te demopee sstd wet, ; ne
: : A nose! qonyt ‘sSqdsoot eta 6 abies off Ye oer e TY
| 7 “Milontak: of ae vas aiid ‘oe baadviepaiigaiic) fy
, : ARN A Ey Se ale eae All li
| men mo oe iu ovad heen AaeteX oem exw ebmetl ’ waost.
aes eH8OL .8L sodmorqet samen co wo weiethien oa, i
: adit wore «ymoquod gabensetwmct atwod ob ot ats
| abned sands heviooos aateatl easitva 4 , “gust Stobetnte its
a 0¢ hotumoms tohant adsabaotod eae doldw ” 39 a8 4
’ wan odd Bt fost mt naw vomeEs vikwetese tot nd oenstol
| aid te boxeyiien gaigtaw mk snostwonye ma Yo omer | ne |
time in which the seller, liyney “morsen & Company, promised
at the option of the defendant FP. J. Lewis Manufacturing Company,
te repurchese these bonds within « givem time at a slight
advance in price, this being one of several similer trananctions
“between the ¥. J. Lewis Wanufacturing Company and Hyney ‘merson
& Company.
| The pleintiff asye that thie transaction smounted to
-& short time loan and way therefore ultra vireg the power of
the defendant ¥. J. Lewis Monufacturing Company, and that as
@gainst the plaintiff, it therefore failed te aeguire title to
the bonds.
Plaintiff soncedes that if the defend-nt F. J. Lewis
| Menufscturing Company, 49 « holder in due course for value,
pleintirr cannot recover. |
The court indiented by ite rulings on propositions ef
law that the theery of the court was that the transaction, by
“which the bonds were acquired, amounted to a purchase; that the
| defendant corporstion, however, had no power to muke short time
Toans, but that the transnetion was not ultra Wires that ecor-
poration.
We think defendant F. J. Lewis Manufacturing Company
bea ® holder for value in due course {omtth Burd? s, 132 linois
“Revised Statutes, 1925, chap. 98,7 and therefore, as nanbaet
|the plaintitr, took a guod titie. (Murray v. Lerdner, 2 Wall.
110; Jonee v» Nellis, 41 111. 4923 Metealf vs Ureper, 98 T11.
|APP- 399) Drum Construction Cos vy. Forbes, 309 I11. 303.)
f Moreover, plaintiff is mot in privity end hence as
wt the defendant F. J. Lewis Henufscturing Company cannot
its claim to the bonds on the doctrine of Mitra vires.
Sp re oer en
beainer «gaged © movren yoay exottoe oi dole AL
ouagypo0 span hart atcnannt wiwod 1b 0% Mtannetoh eddy te ake :
ms Saban a tm eat kd Ggevia « Ghiihw abiod owed veadonagon }
axoidoneners inkiste saneven te ono getod ald? yoolsg ak ont ffi:
moozem pet esi aia jemheny shame i bn biel an Leven t )
og hognwona lahd-anisinesle side stadt ld’ Wheat: ont fica
(26 TOMY On! BONkY wally exe toxee saw Ame moos gabe asada s
bs tip ily
ae ‘toate dae eye’ yates eaten akwol «hb + tusbao ted rk
0d G09 Webupen OY DeLteY sveteieds at E otiemnnate ad wee
aiwod ob «¥ drvdaeted add 2 Jats aaheomos » Vebembers ae
of. iad eave airy at robked W eh ¢tyauemet geskerurs ont oa
yon a “ey De Ce bape thal
te eneliheeqerq me agaiioy age ot boda thnk dupes ‘ean
6 .nolsenanoas old Gadd dow Pues Ord Te YebEdd dite Fads wal
sil? Godt poxadoieq @ 62 bednvene yoerhupse wow wpted’ od? to ti
emis teeta waa eo eewey oa had yrevewnd yaohdraegto0 suabas :
~gue tea? worl¥ ovide Jon saw moltosenend odd diuld 400° fom
wioqae) SabTae ECT okwel oh oT techno tad xebsts eH cowl
yoga Soa ae tus] oorses oem mk oway tet gestion i” a“
santana ox ,oxototesid ban \LO@ sqado .2°eL yaedwtet? bee .
cited & «tenor eh twa) «ele he Gowy @ toot binnareainrc ibe:
oLil 89. ..sgeq ems 3 } |
(008 +441 008 .godeal amv 202 wodtounteuet mart’ YORE vey
em pomod dns ea hve. mk mas wh, b nteadotg, LoVe nant a
forsi9y ymsqwoy natzutorwunait alved «% 65 smatmened ood emtey
ny) MARBEL GRRE. 26. oh t2 908» she we oood welt of minke ath 7
ode
(Reetor vy. Hartford Paposit Go., 190 Ill. 360; Heatern Telephone
Mfge Go» ve Molex, 150 Ills Apps 3433 Amerioon Credit Uos v.
Forthington, 4191 Ill. Appe L177.
Further, we think Plaintiff eannet et amy Pate aeintein
ites suit without first making a demand fer the bonds, of whieh
there is no proof in the record. (Unde & Me Rs Go. Ms Boe, 77
Til. 5133 Clark vy, Lewla, 535 Ills 417; Ronenbawe vy. King, 114
Tile Appe 648.)
The theory ef plainsirr is ingenious but cannet avadl
| Water the facts which appear in thie ragord, Judgment will be
affirmed.
AVETRMED.»
MeSurely, P. J., and Johnstons Je, concure
$08 oi kt COL «oOe
ay aie 999 ase ‘Wh sop cea abt den yore’
ae en oe essa
| ——. vente ke ‘Wall igjaapeanop wasnt destseiniaitni
ety Aart to x
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fob ONT REMAN ‘Agee Sipe in ae Ae TR TRE (ve a Bg «
sine usin 18 Wah at abba nl ar 0
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\ TOMS I MMe 9 NE YOO Be | daoaeyennel bad
oT EAT TTA,
Se Ms i ame ee MS Me Ut a fcr
ssl “tua Lot qtiodantet bite (a 4:
steeds wit bereitiaae Ma
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“ORR ee rae ae 3 ‘ n Snake 1 fy Ra
at ae i AI cae IRS RNR RR BSR RE AMR RY CR a SRT RR ig Wa | ee sp! ie wate? rom y a
2Qgtoay ao Re) Ayu Di Rei ey Ee ea
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Healy 4 Nee aR RED Se fee i ¥ { } vie
ens Ae a aya es FP. ON bh BN nt Pies Rf) ¥ shh. Raa wiilk aii i i By Tr st ao
voles AMOR Ki, poktane He 9 i) seer
Se a CM i eM ME niet i Milan
2 en cans Pi: ahs Sieh Heng aS Put eae, whoa, Nac 4.) iyi me ) Sess eres yap Att ao
ait kat a hee ht sa ‘ wah mew weal ile naam anit (ot Ma eS: aes. a
~
+
Bi Mag who Hh a PER Sabet
120 + 31248
GUARDIAN BATIONAL BANE OY GHIVAGO,
Ag Peliast ,
We
¥. 3. LEWIS RASUFACTURING COMPANY,
a Corporation, and STARDARD TAvST
& SAVINGS BADK,
)
}
} APPWAL PROM BOT OLR AL
COURT OF CHIcAdG,
Appelleos,
SUPPLEMENTAL OPINION,
. TUSTICR MATCHETT DULTIVENED TS GYTNTON OF THN covAT,
Plaintasr in ite petition for a rehearing complaing
thet the seurt reached its conclusion that the 7. 7, Lowie Zanuface
turing Company was » holder in due sourse for value “wltihout sure
@Mowiting the hurdie that the trenometion fmvelwed in this case ie
or in not « short term loan,” and it again asserts that the trengee~
tion amounted te sueh @ loon and thet being ultra vires the core
pany the cusporation derived no title te the bonda, Ledgh
- at Seem Coe, 20% Tha. 147; Cakumet & mate ¢
is cs. s. canning, 275 Tik, 328; Bergan ts
‘Bastor, 273 Li. 532, are again cited,
there are two anewere to thie eontention, In the
plinee, the transaction under consideration was not m ohort
Loan, and, in the second plage, even is 14 was euch & lean,
was not (én our opinion) yltra vires the eoxporation,
_-« The tried court specifically held that the transactian
i “Whiten defendant took the bonds wan not a loan,
. Zhe agreement between tha Hyney Rmerecn Company and the
7 . %. Lewie Ranufseturing Company iw in writing, aad im ite plein
@ indicates the intention of the garties that the tranuaetion
. 4 be in the noture of & eule with an agrennent that the seller
L within a given time therealter, at the option of the vondee,
ae the bonds at an advanced price, but the purahaser ai4 Rot
He . BOR SE ~ 06;
#ES, AMR aS Br Aaah. em ee ane
aio ‘
wy malta
ae sa enema
Aakers wont Uamads
| es i panera eee ins whe aH
ae = b G. kee , er Jae 9 eras: opted ?
| 7 Bc ish
RIOR, Sa 1a PURINA mARVTane TrMROTAM SOT TETG
ssulbaul outa “4
Mes
as
fe
R Ps! fs
pale lqmes palicodey a “ot Heltloeg aak ot “hteatort
«oi tenek alwod .t°.% ed? Sad? noken ious of) bedpaet fruree dit /
stun Suedsiw" ovtev tot owxeoe’ oui a tobLod » oor yang@ad: a start ud
wt apa ate? a2 bevhowal no hteaumend ari? test? wldrewe ol? gat? avon
<eavustt’ say Yass wecenen: aagh ot haw *, mea weed Padh’ bh ton! t
wten al? geile esete gakod tact bas ogk a dawe of botami
‘dates ebhicod, sige oo off1s on hovixsh endbenoiee) om ‘
ess. made ek Lee aos so ai, oe
2. MB sHSe .hS1 CUR gas |
a ci ue shotie alaye wus ,866 Kok BS oe o.
| - patt al .audtaetney ahiie @? etewann owt ore suedt pan ;
: rasa & Polk ast Mok satob Lame ‘tw bina Kotsvaeants oid norte,
, mek oe doe sow ok ‘th nove soeke hacons edd mat bia afte
vtakiavenn es ott agsby Pere (aasctqo +9 aa) toa wat
makgeasnend asid aaeh oho ‘Liaw Eton ge ewoo fala ae ee
nos a toa aaw phstod ett dood rabaw tab we
ext baw yinqecd mowrunt yous ad naoweed taousertya eat ioe,
lela moh at hae agueks aw at a2 ata gated garded
nobtoanaet?, asd sont we hi sa oul? ae agttaeamt ode wtiotiad
totion wt tats jnoanetya me. stew odae * to outom exit ab
sooner aed ne aol tego wate td 10d tas tod astt 3 wove 2 abstt
gee bib aesodotwe oa tied esitg hevaawha ‘ne Se shaot note
agree or bind itself to reeell the bonds at that price,
ir, Lewis, the chairman of the beard of directors
of the defendant Banufacturing company, testified that the eoitie
pany had eurplue funds on bond which i¢ wished to invest for a
shert time «- thirty or sixty days -- a4 thie was the reageu why
they were wiliing to buy the bonda on the thirtyeday recurchase
agreement. He sleo testified that the company had quite &® nuaher
of similar transactions every fall, Plaintii’ arguet that thir
evidence is sontradictery ef and tneunel stent with the eritien
evidence and conclusively contreadiectea 1%. Ye do net think ao,
The finfing of the trial sourt te entitled te the seme weight as
the verdiot of a jury, and we cannot eay that ite finding in thie
Fespeet te contrary te the waight of the evidenos,
But even if wa eoult find (oontrary to ¢he triad
eourt) that the transaction in question was a lean, we de mot think
it wovld be ultra vires the powers of this sorperation, or that
Pliesabie,
the defendant Manyfacturing eoupany, the recerd ahows,
Was incorporated’ under the General Ineorperation Act. By ite
charter, ac swended, it was given authority "fe engage in ony other
manufacturing, aining, construction or transportation business of
. any kind or character whateoever, and te that end te acquire, hold,
q (OW and @ispose of any ond all property, assets, stocks, bonds and
Fights of any kina,”
It is elementary that in addition to express powers
The petition for renearing points out that the eases
: OME
i ae to bee tas 28 wbaod odd Shapen of theatt bate ery
| atezoorks to beaod ents eo vata hana, ear yeh ee ta ies
| amon asi Laie bes tieend 1 thie gna nites tou tara tandav'toh eit
| # <e% dowvek of boxadw 7h sok boed me oban't
| vith nosawt Sut wan mhus bike de aye ‘Yiadll doeiteRild =
ReaD Mot wehaqensete ad ao whmed ast yd spat Late tow ye.
todimacs a od twp ional Yeats akon ata todd heals idee? eoke ohh, ssaomerae
ght? gad! weagte Vrliatesms L002 YtOve engktens met? | Lbs
tesghow bie Atte toate lnmopnk fae Yo ies Hilconee, at ‘eonekh
f | nae that ie ear My
.0o tubes vow’ ob OW dE edo tnaxsace ‘Ulevinwss se hme eon
82 adglow mane ot of bali tian of depen dim bsd Perry gabhntt eet
atda al gaidal ash dus? yee founee Om bma., wih a6 CorbTO &
‘i ooh oat aieetivn edt he Sag tewt aah ad pauseion!
sini, ame of “restaee) hel foes ow dl peek Hae
oe er ee
a
Ne ile Ta Sv iri ao
%
tat 19 assessor moreover a
: dl ye
Se ne ee ee ee
= ee Se
,ereuds Aeseow way 2 Yalacyaon gind ch dow | mee oat”
Ge US aifon: ie hae sh Re Ps el i
wat yea’ otsaveqraont haven aay mee
, sqronned
i yale se Maen Shab 4 ge avas am ¢ nase)
Moris! yo ab tt whvanttne wev ta ane 35 phebagmn we 9%
OS HME 4,
te: waded aieet aehtadsoqa ned te aoktowtteme9 spate smark ar ry
[ phubeel ga dopom ‘od baw ‘tate a bam janvoostade ae toe's
ih Tee atl DBA | baked Nee
4 hee akaod atoade vetona cones 1 te ben, OF, te myacath a
NN one % Ye eth
, Shai” “hoes ER ORO RU SS bla wit
eunrog naotene oe wot th } me Salt mn tap an
oo» tettent owe aid outa ¢ 12 yaodtan enn # pt,
secggeage sh exeron dt 30 a a of eden :
fo SER eS
Waray we M4 Dae ath Ay :
9 a ee with tee | owas owt't wont
“ ebiane wit teas ime ae ere. 40 :
3 CH ay a ods ba ae Bee We asd
A ey b at 4
- Atetinguisn between an act yitra vires whieh Le merely on shure of
some eereorate power and an agi which seeatite te an illegal and
void ateumtion of a power whieh the cerperation does aot have,
Tate eourt is not unaware of that diptinetion nor of tue diffiLeulty
hal applying it im particular eases,
| However, even conceding further that thie traneaection
wee # loam and therefore ultra vireuy, we would be diepened to bold
that 4¢ wae only an abuse of corporate power, - Hot an Lilegal and
‘ga ror “era ima
eat a Wea
134 + 31264
OLS CONE and ABE TOPPER,
ading ge LOUIS COREE & TOPPER,
Defendante in Orror,
ERROR YO MUBICIPAL COURT
Re Rae he hee tag Come eS on Nee
VS.
OF (NE GAEL,
ISIDORE GARPER, SAM GARBER
and BESSIE GARBER,
Plaintiffs in Errer. Lee
+ A F py S)
za 4 4a 1. ep
ER, JUSTICE MATCHNET VELIVERED THR OPINION OF THE Count,
Sy this writ ef error the defendants in the triad
Court seck to reverse a judgment for the sum of $2512,45, entered
Upon the finding of the court. :
The plaintiffs eued upon sixteen promissory and
Judgment notes, executed and delivered by the defendants te the
“plaintirre on Kay 24, 1924, duigment by confession having been
“gntered, the defendants wade a motion to set it aside, supported
Dy their affidevite, which were substantially similer, setting
up the defenses of want of coreideration ané that the exeeution
“ana delivery of the notea were obtained through fraud practiced
upon them by the plaintiffe, There was a trial upon the merits
and Judgment as stated,
The evidenoe tended te shew that the plaintiff ene
tiers wore dealers in furs; that defendant Sam Garhker wae en-
in the businese of manulag turing wearing apparel from theeae
; that he purchased fure ond skins from the plaintiff upon an
account, and that upen petition of plaintiffe and ether
tore, he was brought into the bankruptey gourt upen a prayer
at he should be adjudged a bankrupt; that « composition of his
iters was agreed upon, whereby the creditors accepted notes for
ty-five per cent of their claime, and pursuant toe the terms of
Composition the plaintiffs accepted the notes of Sam Garber,
7
: ine syetoreeW ay ome |
ae ee ae
% ’ ae : , CoN
| nn ee
| oy re a. as h h e:
lt nero ar soreI4o “ge cuneate TRABOTAM. Bt
{ ‘tet thnes ak 8 dose to wily Vents to. ew enue vie’ is aims bie
i Aervedne ob eaEEe ae ae wee ‘tet susmgbat & satoves haul sip’ ws
' Pap
' |
/ baw ‘Wroueksong noo tebe wines Rowe oritiiete oat wa
+ ani
i} oas bvadd ediahin lies wat qa bowed ine bas dotvonne uetew sre aig hy
) 7 Pe ee
| anes pated aeknae roa yd 6 among ht wanag ‘a voit ne aitive, os
bevtecane aes os eta oe mld gat a shew adnsbae ab ont Fs nom ms
i : aut svouns sata ete tte \dnkhenanbsiies 10 Snow to estat beet @
i hooltasrs pane? rgvordd eatetdo ter eoton onte 2% ctpr hos bam
at tis nit coma tates @ wer oxestt ‘eT S bate rtd ed matt 09
ae
; shetate ae toombat fey
wie vubsade te weld tart wen or bobans weinas ty oat aiid ite
name eon sean awed 3 i ten Ky sas om at ‘wreLab ww exe: ,
waenls wsarn”s doreneniac ad wat to twoes ‘te aboosinid ond a | °
A mattis VRE eLe alt sete @adis bias out, deanery on dade ‘a ai
| Saad ¢ fra wthidnte sq 1% ankehteg monte deste baw taweone ne
a stu09S weroredaad ext ovat pe eat 08 : on
seed se 8 1 0 neon one doseenea eruseate 8 mote tes
ge
Ieidore Garber and Dessia Garber, dated February 2, 1692, due in
ten months from date, for the awn of $436.51.
Sem Garber ie tae sen of defendants Isidore and Pesele
Garber, and they were apparently living tegether in a heme on
Lincoln avenue, Chicago, where their business wae conducted,
Teatimeny indicates that the defendants are all foreigners by
birth; that they speak the Yiddish language; that Beasie Garber
at the time cf the action had been in thie country four years,
Isidore thirteen years, and Gem since Chriatuas, 1615.
their evidence tends te gustmin in oli ite detaile the
@llegations of theiy several affidavite that on Way 94, 16292, when
the notes ued on were executed, 4a Tovper, one of the plaintiffs,
Went te the home of the defendants, Saw ond Besele Garber being
Present, and informed them that there wae diffieulty in keeping the
@reéiters in the bankruptoy precesdings in Line with reference te
the composition agreement; that the ereditere desired « aevarate
agreement te be signed by defendants; that, if defendants would not
Bign these separate agreemente, the crediters would file a peti-
tion to set avide the composition and charge defendant Som Gerber
With violation of the Bankruptcy act; that he, Sam Garber, would
be indicted and criminally prosecuted; that Topver further sata
that he would prepare the agreements if they would execute the
Same; that Tepper returned after several feye with = mamber of
these papers, which he galled agreesentea, but which were in fact
these Judgment motes; that the defendantea 414 not know that the
Same were judgment netes and did not know that they were to be
exeentea in eatisfaction of the claim of plaintiffs, and that they
executes the notes under the misapprehension that the sane were
these agreanante.
be Cppesed te this is the evidence ef the plaintiffs to Rhe
ft
t that Sam Garber again applied to then for eredit in the pure
4
ee
tt ayh ,S8OL 8 yuretet besed ed — -_, =e orobte
COS ee)
hint han’ wrohtet etiebae hoe ve aoe eat RE esau wae vat oad
che wait me a2 Tedtayed yal te Yiiaptmgqges etew would alk jee ost
Aatouhago aaw enomiand tledd exw ie ‘0ae tale. er ni toast
qf atengtote? La ein atushaetes odd dasle di sahithidy eenioad
rota ekeeed tadd fepadignat MALU od? aanqe vend dad hades
a Vatiwes shi? mt needohed seldom bs. Ro pata ott F
ELAS ,wmede dxstd wonta mS hae ,oeeny ames lt eros
ant aftesos wee fhe ab atavawe ef whone sounh 2ve hott
irs ste sede jae ye ae ‘pent oe ivahtthe bideten ‘uted to stung
(aT beatale ore *e orn «mqaet ae ehotioaxe ores ne bows fob ot dl
quted wedtesii phenet baw sat entaanantoh oud Ye acest whe ov 1
ett gntaned nt ef lvett th ‘pow otods tone ‘wodd bomotad hie Rewer
es aoaen tot sit be onthe at ayathseoore ‘wtewbined “ot! mt gradi
od atecee & bertawd arosiboro | ont det Ltomperyed ea cd
| ie _ caer 'eslAb, vt
tm ayo si a
bine caveat moh Ton bole” HEN Gos sable
dragnet esp fa — rene Fouts + a
NRE TE ei
te rodan ® aetn eel farov98 teste ae sone ta
“beet ad sda to hae aed sntaoxivorne helioa en UP ‘te died
vty sat wont toe bi wPan bas ten ont "gate" san : - sh
wnt tate ban sortientete te mate fo re eernrryt ne is
| ornw nen ot ads ) nobenestoxmgne ta = sete fe
i ve na ee Mn an
outst or wisatede one ie soamnive oe 8 ae ie os ‘Kade raw
RR ms ok bo a i
oto, ote ah tives pe ‘ma av. ne
ehase of goode, ant that they refused to give much credit unless
the father, mother and sen would execute these netes; that the
notes were executed ani thereafter goods were delivered te the |
@efendanta,
There in practically no dispute as to the rules of
Law applicable, Bither the agreement to cive oresit, om the
past debt which Kad bean diecharged in bankruptey, would be a
sufficlent censideration fer the exeoution and delivery efothe sid
mew notes, if the same were in fact executed for that reason.
The controlling question in the case therefore is whether the
finding of the court that the notes were so executed and delivered
and that the same were not obtained by fraudulant representations,
is against the manifest weight of the evidence.
The task ef @h Appeliate court im reviewing a record
where the witnesses whe testified are not entirely familiar with
the English language, is peculiarly diffiewlt. In suck case, the
trial court hae a more than ordinary advantage in weighing the
testimony.
The evidence here i# conflicting. It ie elear that one
OF the ether group of witnesses deos not relate the facte ae they
are.
| The recerd indicates, however, that the defendant Sam
‘Garber ia not wholly defleient in his knowledge of the Bnglish
Language; that he was accustomed in dealing with plaintilfe te
“exeoute trade acceptances sand notes, and that he evidently uder~
‘stood the charscter of such inetruments, We find 4t diffieult to
Veiieve the atery of the defendants to the «affect that these netes
were executed in his presence, they believing that the seme were
it notes but agreesents with referenes te the bankruptey matter,
eh hed apparently been settled several months prior te the
of the notes. The testimony of the defendants in thie
seotow thheto singe avy ot. hows tae mel. dealt heim, shoes Te seed
oat sant peeton ongas efunexo btwow ape hae wertta tedat af
os) of houwTE ed s10w ahooy Tor temrots bar betueexe wxew aede
te ae kaet walt, ot ar, alias ies eevee abil e is ind
Ae te ditew orkg of sanepnaga off wele2®) siihdibaiabeaiie
6 od bSewe wedmerdand a2. bryrated th seed, dart oh heim aod ome
ety emer leok dune wolsmoome, oxth co Mek tate Lage dare kok
connes Gacy Tet hddvoexe sont at amow ome eft 22 4808008 9
phd, wesitedts eh orateznd gasp eat ob solteonp, madi conan *
hateviLee Amy beteoexn on anew sodom anf decd samen ont tw yma a
eeentennemereNes tamtihuenh et doakedde son exew saan, od fost te
ia hl soemmbive oat to dsigtow saw tlanm od, deateue, ie
biooes. 2 gaiwalyes af diyoe afudionghe th Ie dead ea? na
Kipe tabhiaeh yloslaao ton wie boLioned ey nowngend ty + sian
od? ,enao some WL #0 F322h vleadtuog at .egemanet dosing oi
2 Aohipiow at wgatnevba yralhre sacs exem) a toot Pewee Leite
hide se LEN Reel Ebene wh Re oy ee
ous Sed? tasdo 9d 2% .naided cue at ered eomeh tre eM 9). 6) mi)
youd an adout odd etelox dom, aoob soaagatiw ‘ta: crotn todte onto
Mani! nuigatdiongae Hein ccalt! due che Peneweie CL tea meme hots Vea he
ma dapbaaies: gtd Jatt ,tevewed,getacthal trope @8T) sony om (od
he bLgind. oat Ro snholwont ahd ab. daoto teh ytloste tonal mata
gt eVi2enloty, Atty yahlaad ah dawetaungs ear on, fans paQeu~ate
wigan ydtnebiwe va Xmabt ban Redon bm aeenesgoogs Shank seupen
of duel Vets oh dat? aW .atapmnretua dose te retontade oat dnae
avton onodlt fad doo'tts odé of atachon tah edd toyeda ont owed
S70 ome was Sait yalyetiod yodt ,oomegta aid wt bedeoone oF
stottas yotqrriasd ot of sons wtet atiw KI NOWOO TES fwd anton.
oud of volt adliaam taroree bostsee, need yiaanmange bax me |
ght at etandanteb out Yo. + pantie net. ssenteinetiM vo RA om
‘respect ig not persuasive,
The wnoentradicted fact that on the day alter the
| exeoutien of these sctes plaintiffe comuenced sending goods te the
defendants UPON Mengrandum agreenenta, tends to sorroterate the
— testimony of the plaintiffs, whieh ie in (Atireot cenfliet with the
“teatineny of the defendants.
f The burdex of preef wae upon the defendants, The
Finding ef the court fa entitied to the sume weight in this court
the verdict of a jury would bave, and we have no right to set
finding agiae wumlese it ie againat the manifest presonderance
(ef the evidence. We oannet on this recerd so find, and the Judg-
‘ment of the trial court {# therefore affirmed,
AFFIRMED,
eiy, ®. J., and Johneton, J., concur.
ee ae Shh: du: dente Aare hewn ate sit ost it
eels ad sibbery quitiitans Rew mesnaae eetaatny doben-eteth: Re wetteate
edt staxedortos od abies ,ntaensetgs ewhnatenmm Ange. einahae he
eit ew ded kb: - wh ee *) we ” mi
hail BB rea eeteh mal see cee sa0ng 1 wa a> ee 20
sou oF tye ein wie he ta : dia ahumrcmiett sume tien
ss sneeeenanbaiens capensis eneahemademuuion
SER wos WHhRR De a deniabte: - Stare winavi
oSSAT RA, Ra RO ek Oe Rae ls at
HEGGAG ASH A Ree sas Wralaie 40 af KAO RR ag 4 he, te teat pat
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Sys RE RA Daca Rk Wins ae ON wins, NS Epa OR On i i tet Pweg te
1h eile \ s ty "i 3) m ebet ban y
Owe Bie ie Mie! > re i Be ei g TO OR iy
BO ARS ERA RB ah a ae uae Ae ie ae a
HO ie Rae a) ae ea) aU OURAN oRG ne Shae Camaro tin a
BOW IPR MAN Bah amet pial nieitoia or SR coh)
fee RAY UE DM en a RCM ee a # ibe, Bi ont, eS tte the 8 :
BR Ee RMI BS aR ota a Ra ‘et inane Nataon yee at, ici ,
ca ui shi I fete Het WR bbe. ny eae tye we ‘i ihind’ Hi Sine wishin Wes)
RR
OB RETRO AM MIR aN calms ARTI sila he eine seth
Bie AN GEE AES ee RS iy Se oe) ee ake eae | Ee ; #45; i bi
LAY me ORE Fae eu a me | eae Dsbiittyiien
Hp eh
164 ~ 51205
ELVIRA KOSKY, }
Appeliece, )
APPRAL FROM BUICIPAL COnRT
va.
OF CHICAGCG,
i BE, GHAISTRESER, Doing
asinese as JOMa x, * CiiRT BT Mu SRE } : te L
CY AND LOAN GO., and MARY } ey Ad FPA egy
TURRIKE BARRAIT, fo “EE Lolhe Ded 6
Appellants.
MR, FUSTICK KATCHIRTY DELIVERED THR OPINION OF THs COURT,
The defendants appeal from a Judgement ia the sum of
‘$2020, entered upon the finding of the court.
; In her amended statement of claim plalntirf averred
‘that she entered into a contract with the defendent Mary Catherine
Barrett for the purehasse of certain real satate; that sald Barrett
h title enly in trust, for the use of defendant Jehn &, Christen-
» Yho wae the real omer of the preniaes and who reeeived all the
ideration and benefits of the contraet; further, that she paid
Fendante under the contraet the tetal sum of $2030, but that de«
ante falled to carry out the contract in accordance with 1ts
®; that she therefore dewandied the repayment of the eums ad
ra eed by her under the contract.
The affidavit of meritea admitted the execution of the
ne tract on Getohber 3, 1924, but dente? that Mary Catherine Barrett
Meld title to the property in trust for the use and benefit of de-
fendant Christensen, ant denied that defendant Christensen was the
of the premises or that he received the consideration and
[te of the contract or had any interest ehateoever in the
y mentioned in the contract.
The trial was by the court, with finding for the
Laintifr and judgment against both defendants.
| it 1s apparent from this statement of the case that
Res pee pe ERIM wre tae
(ae ORO as
< Nh
ARES sehuhoniel ‘wos aaa a Ra a Al
, ise SC Be aa Bt ie
Sed .hel i & g
»&O
ral se, sae a et Ber ARE Bid ist Wane aa Pwcgrnr, Split el
PF: fe
an tans wat
nk sl mort rescue iia oll :
oulredind Vid taghes'teod sat Aide sowttnen 4 oak howetae ode be
$tevtall bhes dud potatoe Laer slates to ouasionse oid wet Sern
anedol iid 4 aiot danbas'tod Ve wew one Gok Heid Ae Uldo oti We
oid Lip beviesot ote haa esntanre od? ‘to romwo tnot od? ew oe "
bhaq vce dau? ,xendawt pdowrtéoos edd Yo erhteued bax soiserobtaa
oth tad tot CBOSS ‘to mun Laver et tometnoo od sebeu aban os
wrt Aiiw sonebrowen ai toartaca ost tue wxese of Settet adasban
abe aswe od¢ to duomyoqes anf Hobuaiwed wuoteredd) ode tad ve
-doateee oft reba tod yt boo
Gite te aoliunexs siiy dete bwha etivem to Fiveb ite ae rea
tort antwedteed rel Yast Nelooh tue ,eeOL .€ cedoted ae soe
nob "te Pe tONed haw oow SOF Sold Fowed ab “PtoqorH est Of ore bi
ent caw ve sentelea sanbiotes Gadd boiied bad qeeansatie® saaha ny
ban apiterahiewnn oat havtowwy ot edd to wpa tonte out ‘te om
$d wh toveonsede faetetah Yee bad «0 Peontmos ould re hid
temntaae ‘vit at benotdans ydeqer
salt not galbalt diddy tao sat et aa Bits Sell oo,
| hunaceni Meee ‘ 13 aie asegtut ban Trheate
ee wy
f that John %. Chrietensen in fact ovned the property was
ary in order to entitle the mlaintiff te recover ageinet him,
The plaintirr has not appenred im thie aoyrt to eup+
po: the fudgment, and the defendantgacaert thet there ie ne
or of in the reeord of this essential fact,
4 Ye hove examined the abstract, “hich pregwnably is
‘ et, and fall te find any euch evidence, The finding based
on aA mere guess ¢annot stand, and for the reasons Indicated the
t is reversed and the cause remanded,
REVERSED ANT REMANDED,
y, ©. J., and Jouneton, J., sonouwr.
Re a day
CN ha LN wie ce ‘diary heise ‘a
Lane debian Padi a “ een a isin we
ie Ob a hae. Bey . Sees wend
Bia Aelia ait Bei atl ‘ees ni.
Ae ey wee SRN Ny
a 3 wi iui me RB ay aeaaaes iQ
393 = S1525
. L. WRAVER and S, P. WEAVER, )
artnere as THAVSR BHOTHERS, }
x cau, APPSAL FROM MUNICTPAL
ve.
GOURT GF GNTCAge,
ORBUGK & 00., a Corveration,
ing Puciners as ROERARY PIPE
ie HILLS,
Appaliaa. a ‘
2 4 4A] me ot O ep Cc 3!
BR, JUGTICE BATOHETT DELIVERED THE GPINIOR OF SHR COUNT,
The plaintisfe, "ne agpeak, sued for the purshase price
OF 252,500 feet ef pine loge old, am sliegad, to defendant for
the price of $1,010,
The affidavit ef merite denied that defendant was ine
dented ag alleged; averred that the alleged ventract of sale was for
standing timber, and therefere, by virtue of the statutes of the
State of Lowietane {where the trenoaetion teck place) concerning
the enie of imepvablee, nuli and veld, because net in writing.
i The i##ues were subsitted to a fury, «hich returned a
verdict for defendant, The motion of plaintiffs for a new trisl was
oe and there was judgment on the verdiet.
S% Wili not bea necessary te discuss at Lengta some of
Pointe argued. The plaintirts couplain about the instructions,
ae theee were given orally and no objection made or exeention
a to any of thea, plaintis’s ore eresiadted from maintaining
point in this court. ,
The Lovisiana statute concerning the ssie of ime
Hiee 1s & statute analogous to our Gtutute of Frauds. It is
0 e We think, appifeabie for the reason that tha contraet here sued
Pp has been Tully exeauted by the delivery of the timber. Under such
. ‘tute to deny the recovery of the purchase price on the ground
the contract was not in writing, would amount te permitting
en
BSOLE « &
wet TA ON UR AMES, ne ain Th Raaaadh ia
t
F <OOan tid #d VMROD BR Uae ee RINE,
yt
ig © Lcd SANS coe vr nent ae
“trad ime 20" tomarto « wire tanta thitviae ieee
tte OS "hye aOR wy pee, adoro
paren oenstowwy out x02, haan, ie oviw gti ett,
tHE Iaebae' teh of, pbonetin am Slow ened ate Me too? A al
: donk! Ck ote snore bad basso
onk enw ‘ponbeartay: ease iain - epieeda ‘te tivahivta eft Ne
ol aw oiee ‘to toattace beysite one dads howxeve phowe ££6' ul seem
ant Yo aptetave odt ‘to eudviv qd ywtotetets baw testers phi
galetecaes (nonig Xoo sohtesamesd. att etade) anatetead to wen
anitivw af fou amumand ior how fem ,aetdavemmt Ye otne
@ beautes cose ,ytwl # oF badd Lictinew oun mosmn & gett. |
sav fait? wor # wo't Otiitaindy to soktom oft .tnahaated tot ‘eon
; : sto trey ait so door bel, maw wtets fue r
te omen adyaead be mayen db ot veanaenee ed soe Sfgw as |
sRaottourtear add soe aba Lqwor Ti statelg eft houryta adalog a
- Be hiqanne ol & Baan aotsvetse, aga foekas ehtaro wovly ecaw enemy ida ay
| aaiaiasn em nowt heturlewste ete eth uenlete: ORS ae ot 30h
: : pa ete, ahag ak dahog ”
oni ‘to Lee sult yalesnonee ptutads ene be hued ott |
at 4 .abvatl Yo etudnse me of supnetann edudare a aa nen
hove euad Fatima silt todd soasoe odd 40% ahdao thane er w "
dome xe bat! otegnidd oid Yo ysovideh edt yt beaueene whet aed nah
bawoxp edt no eodnm sensionwy, ent oY ’ oat ceuwb of onenen
st Asai
pate! late of Jmrome Rew anit baw “am: 0 ws ma
the etatute to be used ae a instroment of fraud. This wewld be
equivalent te a license for commercial piracy. Such & statute
eannet be thue used.
fhe centrolliny question in the ease, in our ocinion,
is whether the verdict and judgment are clearly and manifeetiy
againet the wetgnt of the evidenee,
The evidence in the reeord tends to shew that prior te
January 1, 121°, the KaeKinnen Lumber & Pole Company, Ltd., & sore
peration organised under the laws of the Dominion ef Canada, operated
® eecl) sawed) st Provenesl in the state of Levieana. Sefandant,
‘Sears-Roebuck & Company, at tae same tine defag business under the
Heme of Rosemary Pine Lumber Mille, oparuted a planing {11 ang
Miatributing lunher plant at Geuth Manerield, Leuleana, which was
about fifty ailes east of Provencal, It alae operated a sawmill at
@ranieane, ieuisana, which wae sbeut tohres miles from South Manse
Field. Defendant had been doing business in that locality for many
years.
in January, 1914, F. A. O'Sullivan became manager of the
Rovenary Pine Lumber Hills ond continued to act as such manager
| ik December 1, 1919. O12 predecessor wee one Gol aman,
‘i The plaintiffs, Veaver Brethers, evmed timber lands in
vert parte of the state and had an officer at Shrevenert, Loulsana;
?, Wanver was in charge of thie office, They had anethor offies
, Flora, Louleana, which was about two miles from Provencal; plain
| ;. T. L. Feaver wae in charge of that office,
bs Prior to Jenuary 1, 1919, Yeaver Brothers ant the Rosemary
Thaber ai .is feat with each other and had sutual acorunte.
On or about January 1, 1914, the MacKinnon umber & Pele
y became finanet ally mbarragsed. It owed altogether about
DOF $13,000, 97,200 or $8,000 of which was aus to defendant,
Pine iueber Wilis, The defendant Mills bet held a first
on the mill and s second mortgage on the teams of the
ae ek A
ad Sivev old? .buett to taametdent we ae Maw ad et etueete in
eivtnte « singed
| bat a i | ‘deen putt ad ton
Hokage aye at aman ens ab messmo : umshtornes. A zc aegis ona
vitestinns has yliests gue taeaytiel bie todntew
7 | | sepaeb tye, ode 9, tolytow ante ia ‘
ot salty tot reget ot. ‘nbaaed bree wit wk canedievs ast a Re
“190 2 yohtd qanquod afot &. todd aeration eft, EE af ¥
dhodatage yabacee® ‘te netnined edd to ewel att soba hartasgze cota
drab tee annekvet to poate edt ok Lao nsvex® te Sf teres toes,
edt teh apadleud yalow amis omes- oho 28. pg fb Kpudeo omnes
baw ifts aalneie a betarege .eisih todmd oak) Briere
eae ils btw Satine dwod Rho tomalk ses fa: Pomnky wo dined yak gectcts
“tu Thies e betaregeenta OL .davasvert te, saws, te a
seis! Atyeo aT? eo Lie owxtls ¢weds, gaw ep dete sanepbnod aeons
tasat WOT WEELOVOE ded’ at meonieud pated awed SoA daa Hifi " “s “
ate pe enned caw h Digit? O all a yenen: ene wa. a
“geigacnn dart at ton od Bound Fave id SELkM wedded ombt ween
xa £00 Gs ew RonRoDsbeG BAK VOLO gf ‘codiaenstt be
“Wat abit Todt heave \aeAKsoet YovaeW pwENtatdle oT
eT ee fe ee ee
po htio Veda ped ¢ott paekt bo whay Se wip orto ves’ ae aves
ottle he phasaeroet Lal aft ‘owe: ounde war “eho Rew ecm Lae
savi'tte aaeit x0 ewtncle mt’ 09 seme dot
poner" dae ‘nat areactoone torwowr fear yh tad oe tole :
sedayodte ters oat hast Bab éohee’ eae Wid bw awh 8s i
“atet 4 ‘tdial id eormt init wn | OL0E) ‘vonuaiet dade 0 009 bill
“gyods selidgodce Bows a2” ‘shdeaae tain yt Oe Be ad |
.drabaiiad oi “ohh abbw itn $06" 000,88" xo 9007’ 000
bani 8 bite Ay otal
! m ‘ a i ee
" 49 bier)
Mackinnon Lumber 4 Pole Company, securing thie indebtedness, Avether
party held a firet sortgage on the teams to secure » claim of $2650,
Mader these cirevumetauces, on or about Vebrusry 8, 1919,
the MacKinnon Lumber 4 Pole Company, by authority of ite beard of
directors, entered into a truest agreement with F, A, G'4uliivan as
trustee. ‘the egreement was in writing and reelted the 112 health of
the company's manager and the debte which were 4ue and wrageing for
payment; that the resources of the sompany were such that a anecean-
fw speration of the mill would pay ahi debte; that a foreclosure
woul? be dentructive and detrimental: thet O'Gellivan would undertake
te onerate the mill: appointed him the sgené and manager af the busie
hese, and turnad aver and delivered te hia all the preoporty and can«
tracts of the KacKinnon lumber & Pele Company "te operate and manage
the same for the beneris of the said company, and te make euch pay
monte to the ereditere er the eald opspany from the funds ariaing
from the operation after payment of the sexta andl expenses of operae
tion,” |
the agreement further reeited that the Rosemary Pine
Lumber Mille woulé advance the MacKinnon Lumber & Pole Company $200
in gash; that O'Sullivan waidertesk the ageney, with eli the powers
of reeoiver; that he undertook to obtain the consent ef all eredie
‘Wore; that ali the buildings at the will were te be warned ever to
htm; that he should render monthly statements to A. ¥, Mackinnen;
‘that all the property, sooks, contracts, *te,, saeul4i be turned ever
to nim; that if O'Sullivan showld aveertain that the Kackinnen Lieber
_& Palio Company sin plant coult not be operated ot a profit, he
%, upom ten days written netics, eancel and /relenee himself
all obligations ond take such steps aa might be neceneary to
tect the Roseaury Pine Lumbar Mille! indebtedussa, sither by
eure o¢ othertise.
It is expressly stated thet the agreement wes dep end-
When the consent of the creditors; that 11% showld exist until
ike
edad monatlna’s nats saitt adetione b tucks mine b Lua 0 “an
©)
Behe weeds semonbemtonan, ert GeO MeO, shot & esa ore
« REDLE, Roy whe ho & wiooe we won e writ ne egnnd t0% sarts s beatin:
Med B plano teode. "0 ae saponet emotes spend ewbent We auth
he bem, mg h 4a, weds onhine 4 remo’ et0u 8 wodanct movin Bans be
en aathhtsBts, AY ste gummereye dave a oak nenwone veriiteen
to mofaed LL aad hetines bra weake tow at ene Sebo tl ont’ “sae
tot anieomny ba bub ouou: io bite etvos’ ont hea ae grant 2" ern gonoe o
atagenus 2 Fad? yuk eror Yaga std "to seonvonen oath: taste’ tei
Swrymosoero¥ «Yate ation’ the you Btw Let bo: ‘noiteriae
edodtndine tine smawhltwa O° gaits ‘pLetnowtetes bak owtion whieh od bn
atagd 600 Yo ‘opmanm bad Figs sats mtel bateboqie {Cth etd ‘Siaekeo”
anos bimi wbmeaotg wot LEV mbt of béaevdteb Bhd Rove hook hog a
waste bine ‘waatelge on” es id ‘ele® Bement moan bn ‘9 oi vpneeee
syed ‘die okelt ot fal \ymiiqion Stas wilt Ye petkaca CNS Ge
eae te ‘Bat ete Aart get epson ‘Kine’ om 46 saab tits Garth
Neale he Wives oo Rigi
<Ptoge hil daw sponges haw adios ane e rom ate ‘noksatsae oat ee
- ! he
Se gr aR he
gait whaiieaah ond add bavioos ctwt ‘delonsmnges a ‘ils
ni ca Ree: ,
OOsG Yeieynios WOH A todd mondtdlend ot sonavhe bvor rosa “
arene eat ‘ff thw yore ge ond sornobuar navi Liye? ‘tai pines |
phi 4 by ela Bh Pe Bh
alaety “tte te Yabnnce oa? abesdo 08 dootsotiny all aid iw tones -
Sp Ras i AN est
ee hwo woweniy’ ba ae ataw ‘ihe odd te ‘eyath fed oat ike eee
ea hae ender ght eta wi .
oy pniy ts Roa ie a of ‘ntnoin ate ‘ehtomom tobnee hworte Kereta roa
ey) it ERB 2 sie)
wave Bennie 6¢° bheode sede vavoetanoe aiood etregora ae. Sie
a PCE PANE RE a Ri Seiaidme
teat
ae *en¥bke & - hedatnge ot en ‘hwo taaty ‘tein ene Oh
ty eae fhe PRS Ras
Tebantt bane tomy haw tbe od ive ted enw syeb mae m0
a ML ig hla h
ob etadadebl ba daybe aa ‘bqoth dows iowa ese Bay enot .
inal ‘eit te “ dbsansbdsnad oie by it wn
a aie eg 4
re
Pe a aah
y ‘e Wy foil
LO yee: CARRY MPN ARN ak
Hae a AS A lie Nal Phe hu tats rit Fla
oneiba(eis dav Fancinnaija hover
fiéng tales Nttode FF dund fete
the dette were paid eff, elthner ty seperation of the oreperty as
provided, or by payment of the debts of the Mackinnon Company.
The consent ef the ereditecs, ef vhom plaintiffs were
one, sens to have been obtained, and Cull ivan began the opera-
tion of the plant. Plaintiffs owned a tract ef tinder land of
about 449 agree, “sich was situated nearer ta Poeranent mii2
thar wus other tisber qvned by the Mackinnon Lusher & Pole Company,
ané while O'Sullivan was thus cperating the will be began nego tia«
tions with plainilifs for the purchase and cutting of this tinber,
end these negotiations reaulted iz a eentract of purchase. The
@loputed and contrcliing question of faet in the ense 4a whether
O'Suiiivan Puroghased the timver From plaintiffs in behalf of the
Rorenary Pine Lusbor Milis, aa plaintiffs oomtend he 4h4, or
as trustee of the Magkinnen Lumber & Pole Company, as the defendant
“geserts,
: Piainti?Y &, P, Vaaver testified that im the course of
‘hess aegotiations he explained to O'Gullivan thet plaintiffea eoulé
‘not afford ta sell their timber ta the BacKinnen Lumber & Pole Com-
of acegount of its finang¢ial condition, but that they vould
i the timber to the Kosemary Pine Lwaber Miila; that O'fubiiven
q : agreed to purchaee it, enti that defendante therefore pernitted
, i te go ahead and cut the timber, leaving the matter entirely
j i bis hands,
| jl Plainsii?’ 2. L. Weaver alee teatified that he told
" s ivan he eculd net sell the timber te the Mackinnon Lazber &
oY Company on aseount of their finanelal condition; that at os
time O'Sullivan came back and tol 4 him taat he hed made
ra ents to buy tha timber for the ae¢aount of tha Ho esmary
ne Lumber Mille; that they agreed te sell bin the tleber toe be
a for ae eut, and that O'Sullivan agreed te pay for it at the
Of each month; that plaintiffs 414 not dirry the accounts on
i
t
a Pe ica eats ae pnazawe Pa “ ae sence ou 20% attigaiody
seatnn ted eat Ba _eaeegee eLot & ede aoan dave’ te
asi TT 6 ae? ine: oi Y
i fe Wee SS PGS Par aay gue Sip) fe i$ Gis)
a enrens ont it sans be ritians eevee o% 48 Wisse se . i
biewe ext Aeatale ageit Labhiiraeshelae iid fe shale est euokrastaxen ‘ges
wD
PEM Ie wey a ee aCe eit janet
; a8 esteaor or) te ng Ldawege rr wont he Me bhag stew afdeb ©
CES ae aaa se ay
peat nene.itent emis te ardor ute we Pomaeyog «¢ te shobive
Cn oe ae vie
eaaw eves ine te sigite v0 ser ed Lhone one te Jaeeaoe eat |
ee ee ee ae
_ tees att anges ork Lis8* Daw sdestatde eee oS oben Billy in o
baw “odast 29 te fount * bene mitsaiess benle war oat We
MSS Ae he egy: a8 ihm
shes trocovengt a9 xss hodawdte sa dig Lite esoten “ares
; f i ee
DY, Sew pra ofa’ 4 sedated oantawan out “d boa tdald ‘geae , 1
ee aid is sa ‘
Baath oagod on ifin out jalerego eanid aa navi Lindt 19
tt hwy, waa’ wa ite
hin oe Pep eae ih We a | ‘a
wee seas ‘x8 senso a wh bos tuaos were el !
heen a ERO SAN a
weston | ah eune ad ah soa te aioteneug aalifer2s¢0
wig Whey gins Bali ry,
ose Ys ‘pies wh avtseatate aor rodial’ outs ‘besocewrg | .
1 TR Ree A RES, gael : ‘his ote
mo bab nd davdmon eveteatetg as eit Se omags ok okt Br tne
Ni Sie ae
ty OL fe ames ke prs Oe ks
aa PE I ENG on Salt ie
- Sa an ay
LY aie GE a Na Ue aa
Pisa ake a wodmes moanbtoe.c ett at tedte stesty Lion ot prota #
% whe bio wea: primp
baa ea ast aud aot 2hw0o Aetonar eta hog samenee mG
a Re Thr) TOR PAC tae Ce ey
et s imi 5
mevliga ae peteas, nodaark oak etaaea oH wnt od todmit ead a
iter hak Raeig ‘3 La a
Bets horny oxo teaeds eduadno'tes tad rie at cuadotug of 2
eee ike. SER iy Bie ic Beg SRR ‘eek bik,
ee i undiaeed outs aatvaes vtedats ote tue sent heeda oa & a
Se RE oa ee etre: 1) PARR Sic) i" end
ca wliigy fi cies af vie lie,
(mtn tent Afiate ta0e Lytonuntt rece | Eioere pod
sillnd oy 0
ham Ded ooh fusit mt Deed baw son toe eh
a Meh MOEN Rees aise
Dveiiink etd 9 aati: pe sak
the booke; that there was nothing te carry on the beoke watid O'owihie
van out the timber and turned in the ameunt; that when the oi tres
talked with O'Sullivan about paying plaintiffs for the reaeinder
of the timber, O'’Suliivan said he would but that the Rosenary
Pine Lumber Bilis nad on account against Yoaver Brethers, -hieh he
Wanted to get straightened out before he sent a cheek far the
timber.
Another witness, whe was the bookkeeper of nlaintirr
at Flora at the time in queetion, testified that se wag present 6%
on the day O'Sullivan cave te Flora and made arrangements with
Weaver for the timber, This witness says that at the end of the
talk with T. 1. Yeaver he asked O'Sullivan if the Resemary Pine
Lumber Mille wae te pay for the timber, to whieh O'Sullivan re-~
‘plied, *Yes," ond that Er, Weaver told him that wowld be the only
Way he weuld handle the secount,
One B. B, Goode testified that he wae eretit wen for
the plaintiffe at the time im question and eaid that he was in the
offices during the time the matter was discussed; that the deal was
‘ Made with O'Sulliven as manoger of the Kosemary Pine Lumber Willa..
Pronk &. Cook testified that he went to Nanefieldé in
the Oummer and fall ef 1920, in company with A. W. HacKinnon; that
he went at the request of the Continental Bank & fruet Company of
_ Mareveport, Louleana, to see T, A, O'Sullivan, who ene then acting
&8 trustee; that the bank had tentatively agreed to Lend HackKinnen
"money te take wo the mortesge indebtedness of the HacKinnen Lusher
4 Pole Company; that they met O'Sullivan in Hanefield; that o'suL.
Awan telid hie that he would net permit the preperty to be taken
‘Out of hin hands woiens beth the mortgage, indettetness due te the
*eaenary Pine Lumber Hille and the timber account of Yeaver
thers were paid, for the reason that the Rosemary Pine Lumber
8 Was responsible for thie lumber agsount; that ne would
' ther have to be paid, or that Yeaver Brothers would’ have to
i abet same aoa asit tn eke as _ yakeien wane one ds tame, inons oa
| ee Bea A: ae
i waned be salt ‘soni douly itr os gui? ad basnay or) toduts ead due 829
ee Vy Be _ as Bye
webatant ‘oat xa atiitsiasy aahyon dnode aav 2£t98 9 athe bodied
| wiawenee ad Pant tut bLaror ad bias ow astuet® pean Fe:
Daal
i emt ste Betw ened od sewast! featays tnwroose zs bax verry
ons tat daeoce ce Edsall od a oxotod eid ponnssiytante tou fe.
| ‘Ey
; ri P ty te be
| : pihinbete Ye weononiveod ona Bow gute vanoade xnedtonh Ay ng
ee
| '
al tanaate kid on toni he hr teat enatsaonp at ont ont ” ssieeel Pi
4 Beebe
“fate aan xmgnn tes obum dae ‘eres ot sume mart Ltueto ib iit
Stas pape es
weit te base ost te soda ayaa abet te ener srodats ony tot
> : aaah bane
ones eEaann OF oad 18 atv bLkai2* 0 benten ot tove08 oh we sane a
bathe ee Heese wt
weet awvat.tutit 0 iy bite : «todads sat ‘a0 CG ae ase ace
‘eno watt wd bituow saad naa piot sovaew Bs tot ‘a
ie Oe
Cees rig
er eae these ada wrt Sask bad ‘thvoss enpob Co ied oar vit
edd at a] va baat bhae baw soisaeny ah owks eng ‘ta eridatese “a
ane aah ont dade ;Beasyoo a ew r0dtea ons omit sas aa e wh nels
Pereruy ‘odour onta wtesian of outs te ‘wepeane as mayb iva! * boys “
al bio iaiot oo base oat ‘tad be Pingase ood ey ae ‘ei
tosis jsoambten x we 4 ate Cd ab +080 20 fier nae bergen
te woe fost & eentt besasoseued, aa ba seenper edt ta tnew on
patton net saw ose may hi kao A 6h one of oonntwod y afrenerenr
enttaas hank oF heottae ecovthnsoet ae dnas ost oaste Leaibatuinn:
wot aetna outs ad agnattasionad oxeatrom one we ad of ‘
Hat
“sovaet ro ‘jawoson xed be rie aeons
ped oaks ‘yuaimnn ok eiit add de
PE peer ee
“bitvwe os sath iehwoawe wom k shad not
Te a ea wee ota Ce
en ‘oved étiew eestor awvee® Bart? to
Pelilevwe the Resemary Pine Lumber Wille of any reeponsibility.
A. ¥. Maekinnen testified that 7. H. Cline, manager éf
Sears-Hoebuck & Company, had given him to underetend that the
Veaver Yrothers'vaceowmt vould have to be taken care of dn cash, and
that O'Sullivan hed stated te him that Geora-Koebuek 6 Company was
Pesponsible to Yeaver Erothers fer thine timber.
This testimeny of Laciionen was denied by beth Cline
and G'Sulidwan, and Mr. O'Sullivan testified tn detei) denying
the conversationa testified te by the two Weavers, by Brnest Lucky
and ¥Yrank ¥. Cock,
The plaintiffea undoubtedly produced the larger awaber
of witnesses wnese teetimeny tended te euetain their contention as
te the ultimate quastion of feet, but wea have often said that in
aeterulning whether a verdiet is againat the weight of the evie~
dence, it is the duty of thie court te weigh the evidence rather
than count it.
Plaintiffs eonten’t that it Le unreasonable te supose
that they weuld have aold thie limber to a party who was knewn to
be financially embarrases’. There io someting of merit te this
@entention, but the weight te be given te it Le lessened very mach
waen w6 reflect that the agreement apparently wae thet the timber
‘Would be pata for monthly; that plaintiffe hed mueh reasen to
‘Delieve that the trusteesiip of O'Sullivan reuld remove 211 finonecial
@abarrasenent of the Kaekinnon Lumber 4 Pole Company; and as the de-
| ‘Pendant points out, it is alee quite diffieult to understand why ,
under the clrewistances and whhle holding mortgages which wauld
have permitted it te foreclose end take ever the whole business,
Mefendant should undertake to ageume and ineur responsibility for
@ $ which wight arige from running the businens of the Pole
my. If the defeniant wished to go inte the business ef
stending tiober and sawing it up inte lusber, tt sould have
oD
| eh LE wangnet yae to ettbe see etousl Gott yawned off & yas 0"
| w tone “eosted 4H Mt dimeta betiitend meankiaat WA 0! OO!
| i nel sucntt bawtorobaut od ated mp by beet owen ry ‘aaiihintseid
: ivan _ nee ab to axa moved od 09 ovnd Mtkow Faces “ erecdort coves"
| Rew anal & taudeonoarest ‘bad? até oF beteda bait mowed dehy rH
modmtt elds Sot eundtont xovnit of ie tebaliagail
Ltuetaid ied G4 reloah aaw aoantioali te yaoulseos atts 9 * as
aaixoo thavob od bob taeded aacretdéVO Jee Bad (uertetagta ba
wound asasit bid Coen ‘wat ore bad ‘od bottivaes agolvesrevaed ot
| ihvedi i “aloes © et an
al lad’ oi? baowhang tied vote inaeaeaite ett” FE cemet
an wobinedoms cies} alefeon o¢ sebaed Yndolsood snedw shots Ba %
a aut “hina sobte oead se ud , doar to wokda asp’ paisa ‘othe
| ahve aaa te ‘paglew oud terlega ak ‘deldrer s ‘gedtece” ak zi wd
worse ponsbive aed vos at fuses Ialeshd 46 vo bo ‘wi ne
eae le “sil Kia west
iF
eoeaens of “ehunnonnotan et ot tame five Stow aitiskieit
| of ros ‘Raw oite ert # od tedemk oho pion aig aur wt ia
wp ie at biunn So wadiide aoe ‘ak oxatt | hokentee riteke. a
sum ‘exer houpeaek wl PE af aerhy od ag “gq tow aut ‘ted. saath
gedals sat edt saw YLinetethe Jabnowrge off dat Geb cret OR on
me ‘mesons dow bod wTthiwletg ¢aitt petite! to hag Od" 8
fatoaa lt ‘tla @ronix biiver anv i ttot o: te qiidnsorertd oe bast” we
“ob Ws es bee ;yMequod +Lo8 4 when dormtimaM wide "kop ecainbtiialel
ie bas tnwebsy of hug bt Ab obtep beta wt fk ao i
oo nog nabs
’ “Basson nie seant von in angi mn bation me ‘ve ‘
| okot ous 2 pee, nalt bal a thy ke
Ke Walt to, sanaten att otal om of mate 4 ‘ ito elt
mate Sy Bik NY So. ag ne
Mi “me bione a antek aie a n a2 .
us helene £5
foreelesed its chattel mortgages and dene ao,
As « matter ef fact, the KRosexnary Pine Lunher Millis
went out cf Gueinesas, and O'Sullivan geased te be tte manager on
December 1, 1919. The tixber, for the price of whitch the plaintiffs
Sue, Was cut aiter that time, and it de difficult te understand:
why defendant would cortinus te ourehase timber far delivery to
the Pele company after 4t had in faet ceased te de business in
their territory.
The contrelling evidence in the case is ‘Ae oumentary,
The contract under vhich O'Sullivan teck ever the Pele cowpany
business ie between O45ulLivan and the Pole company, and defendant
fie not a party to it, ner 14 there ongthing in it from which it
might be inferred that the defendant was te aseume an obligqetion
of thie kind, from the time that O'Sullivan took contrel of the
MacKinnon mill in Kaorch 1930, it sppeara thet the transactions were
@arried on in the none of the MacKinnon Lumber & Pole Company,
Btatements of aceount were made out in the mame of the Usetinnen
company, letters written te plaintiffs concerning the transaction
Were signed in the mane of the MacKinnon Luwbor 4 Pole Company, and
the cheeks by which payments were made were alee executed in the
pane of the Ksckinnon Lumber & Pole Company, Ltd., by O'dullivan,
Reeotiections of witnesses (most ef them much interested) as to
ora) conversations (whieh are denie?) cam huve Little weight as
against the written documents which shew the usual course of buni-
none extending ever many montiun.
The claim that defendant was liable in this trensae-
hy
Seemn to have heen wode only after O'Suliivan went inte banke
om in Mareh, 1922,
fhe burden of preof wae upon the plaintifi's te *etebe
their case by = preponderance of the evidence. The question
thie court must decide 1s whether we gan say, ever-ruling the
“white rodeasd oAke yews eh HAF yeoett to Wited eek
ae tegowim eek ad ot senees auvd Lomo pate (dab atone te wd dw
ati itatetg ede Mo hihe ts wetig odd vot peedure ade “leker (t sodawo
‘pantera et hiro 2th wh od bie ead sian rad sichettn
enagues sfo% edd teve Moot mevilineto aoe lar sree
enemies tes hae Tehomene 90% sith tian inv too maieed ah ‘aig
98 te tite aoe an ef gnc wanes ‘eh ton ft oe Mirch
ate to Lott ag Mood ewe wR TL tes ‘tate? whe ont sidiiia') "” ata
etew axe fFeer meee eae tant wunaqes ak. #60K, perry ‘hi angi gull
et alos & wand Aoaasaaes eitd "te enet aad? ar aes
mmarbionit ae Yo wwe eae a lad #how eter ‘teboen to anaes
“Nodtosnaes ad Qekieres coe ert htntete oe nosriaw biadter © ‘
bam jemonubty #£0% 8 shear tegen 2m? ose! To enter’ weld MP Woy te
NOE nk betepexe we fn’ anew shim oxoe adiomee hae wi
hw LOEO YE YBN eho oot Han dinwt nometitesil!
at oe (hedaatednk Howie eet Xe en)’ ‘dielaartys nid iii ree
ta defy tow wiSehe ovat iene’ (bebe oo? sa bite) ich sen vb
© alltehteet n serai6s aerbar wat woite behaeelninenneee aided i
aa aS
pyaar whee ne ee fe eae
~siei et ovat deww mavbetutt o Dectehiteesleertiers nie
mts ill “sensanate had we ro vi ona
verdict af the Jury and the Judgment entered by the trial eourt, thet
the jury an4 Jucge were elearly sand menifeetly wrong, While the
question of fact is not entirely free frem 4iffiewlty, it seene
Glear to 4#, woom a eonsideration of the evidence, that ve eanot
fo hold, even sesming ae « feet (whieh is not altogether elear)
that O'Sulliven hat authority te bind the defendant with resmeet
te a purehase of thie kind.
Complaint ie aleo made ae to the ruling of the trial
eourt im the admiseion and rejection of evitence, As bearing on
the question of O'iuliivan's autherity to bind defendant, he tore
tified thai he had never made purchases of thin Kind in defendant's
behaif. We wae oxked on cvyess-exanination whether his predecessor,
Celeman, had net done eo, and an obfestion was susteined. Ye think
the ruling was proper, because the queetion called fer an anewor
that was neither asterial te the iseues ner proper on eroes~
examination.
An employee of defendant, whe testified in rebuttsl,
Stated that he had diseuseed the payment of this scecount with
O'Sullivan on several occasions, contradicting G'aullivan's teeti-
Rony in thet respeet, He wan then asked, “That did he tell you?"
ans an ob‘eetion by 4efendant, on the greund that the same was not
proper on rebuttal, was sustained’. The ruling was, ve think,correet.
It is argued thet the court erred in striking out all
rttence of plaintiffs as te a check for $147.25, - plaintirte'
tahtntt 3. It appeared from the testimony that this check was given
‘for & matter whelly unconnected with the eubject matter ef the ouit.
| r Simission to the record cowld enly have tended te confuse.
s It in aleo objected that the court allowed O'Sullivan
€0 state thet the plaintiffs were named in this schedule in banke
ra ae one of hie ereditors, It ia srgued that the schedule
Af was the best evidence, The evidence wan, we think, pregerly
th
SSS
(1 yt dtm Mele? oat wd Noaedae femmatirh eae Dee vat ont Xe fonds
‘eit efiey amotr vidae hewn hey, erent oxow Sabet hie vert *
i tugne £4 cXaEen EVD mov opet, yLonttmy fom ot fest 29 sobten
tommy oe tact ganna bive - nett t9 rettarghisae9 s wOmH ed oF tae!
(vets sartgoyo? fe Pom ot epee) toat tMhdal ‘Balance opye were g hind
deanses at tr taabae ten arte bate ef elronton baal sar cient
Pee iy ain
span abe to pteroig ace
Ae ae YG be me
pera matt te omiin oat ve Rae on onte ak omtasqnod ms
6 es 8B aes ae. Na
mo gatrend eA .anaebive te mektootet ban Hotes tada ot md tan
ae “aot ad ,teahoe tad heute 0 eiitattes a mayb sue! 0 10 noktenn ide
4 Reh Oe tiie itn ca irae
i a? Sambar at batt at t@ conan reg, ahem, even bad wis 3 mid peut.
i LP eee ak ee
ne stonazegnetg ais reciagste Apttaminsxa-asose a deadne et Morell eg
ands eh _sbonkataws eal soltvetdo ae bawe of, ono toa om on bet r
aoa. a ot net oe molten one pasaned rene: sant ed
os Ap teqntg tom awe t oe daw Syria ma 4 0: am a
whee Tk ee eS Dea
Bes turd at, - tr sdk ode Poeien yen, 1 novela,
pp Mee tpeogon ete Yo sanmeng ont Desavon td alo es,
aiteed st awra sce! o Baits Shextne9. yenotngnas, fererne, ne. r
“toe Lind of bib Sade «dorinn wos? san eX tonanet taalt at a
¥)
tom ae Paine oss apr hawt arty et, ne piowbaeren yd “f, Molgosnde ae ty
-toeTr on, dates fice new hers sae mh jteatotom ase wd w, phnd inden, ge the)
Gy SR
sek & * sees pet 2
| Lie suo paige heey ts Re 2A PE vat
| e reir iomtete “ 128,4RK ‘<0 dono of tm arrte be
| nterig sev deetto whid desis woaivaat om aot soueaus + !
a 6 AM
ARS NTN SS Tat ES RON
4 hue oat hie mettom foekton ont athe bos sn aor ay
ae We ose iy a, »
A rm & b La ast ’ aes,
{ rer. ae id be my - ine bsweo 2 drone hel gee begreerng eS
| | A
dayiLty®' 9 hewelta sxwoo ott tod? betoohee ii ta go a bai
— at. edebetioe whey aa baawn —— Mae ag
to maa et
‘Muibeton oat 2 taste lai hea
wend sMakde ow vane ¢
1 BeS ych ne hg Oe i ae SAW ba cin ny f ne aE
oe
There is no revergible error du the reeord an@ the
is therefore affirmed,
AFFIRMED,
ely, P. J., ond Johnston, 7., concer.
+
‘ ok, b A lus » oo:
449 - 31581
INTER-STATE UNIVERSITY OF
SCIENCES, a corporation,
Appellee, APPEAL FROM MUNICIPAL
Ve COURT OF CHICAGO.
EB. BLUMENTHAL and
B. Ge» TROWBRIDGE, supuitenkia’s 6) 4
MR. JUSTICK MATCHETT CELIVERRD THES OPINION OF THE COURT.
The defendants appeal from a judgment against them
for the amount of a promissory note. The judgment was entered
om the verdict of a jury, which was directed by the court
after certoin «evidence offered by ccfendants, tending to show
that the delivery of the note was conditional only, hed been
excluded.
The errors sasigned end srguec sre the exelusion of
this evidence and the direction to the jury to return a verdict
for the plaintiff. Plaintiff, however, has not appeared iin this
court to support the judgment. |
The plaintiff, upon the trial, offered in svidence
& note for the sum of $466.61, made by defendants to the order
| Of Otto Rabe, endorsed by Otto Rabe, Inter-itate University of
Science, . H. Jerrett, and rested.
| One of the defendants teatified that the note was
| @xecuted upon Warch 22, 1926; thut Otte Rabe was present
Mt the time it was executed, but the court excluded the evi-
| dence of this witness as to what was said at the time of the
| &xecution of the note by himself and by Mr. abe. The defendunt
to prove by this witness that defendants were beneficial
(
LS NYA AR aN PRESS fiw sslal
douse oo
Wie:
“0 YULSHUVIMY ATATA-Aw
f. smo kd axoqree hy Pesan
AAUROTMUR MORE LAMA seetleggh | Pe
OOO EO mie EP cr nw Monee te aii reed
won i a : 08 aN . ‘ et malLiagga
a as
\ ar*
Si otee
sane
i sravED aK? YO MOIRING wien canavaaiee TTEMOTAK sorte, =
mold ducttege Smee a mort Leeqys saimabas ted ‘oat
bewdme ace Taseghwt ed? .0ton yroartmorq # Yo dnvoain odd
duson odé ql betoetzs saw doldw yyxwt # to tolhtew a "
wos of uyiowed ,etiabaateds yd boretto eemebive aketzoo” rm)
simedt uch «yao Lomoksthnos saw eden edt Yo yrevites ond sal
te moteshoxe ae oso bergre dee bonghase avercs off 9° -
foltavoy p axevot of Yumt edd of motvouotih ef? baw eonebtye | s
sidtviatiuhe rege dei ened ners ag ttidaials | | Meheatede eit: a
; Seamer, exfd srogqua os a
conudtve af heterte «Lakes ne? moqu «ttkimbatg eft
zone od od atanhaoted yt oben .£0,9088 2e mua odd x0 ¥ stom
to Winserial o¢adi-roeal ,edad 0390 ys beatobdae. sods 0980 |
sbodaet bus aftorxes, oH. ae ad |
asw atom alt deve pedtitsed sdaohaa tab ocd to m0
pea sew odnll atdy, donld gOR0L . RS Moxa, aequ 09 FOS
mkve oma beiw Lene iaeoe mals ual shadunaxe Lied th, ems i :
afd to omts ond do bine naw ta Of ao paamede alslt Yo 6 p
sasbaete aT sodas oil Ys hmm Bowmb yd oton dS 0, nokiuong
Leloktened orev atnohastob sate nesatto aiid ee tend on he |
“
ghareholders in & common iaw trust, known ae the ©. B. Carrier
Company, which was engaged im the business of manufacturing
ever-bumper carriers; that on the date éf the note, defendunts
applied to Otto Rabe, the payee of the note, who wae in the
Business of making patterns for use in the menuf=cture of
@alleable castings, to have patterns mace according to certain
requirements of Peoria Mellesble Casting Compunys that onrtetn
drawings and sketches hed been made by the superintendent of the
Casting Company, which sketches were offered in evidence for
identifiestion; thet these patterns were to be manufactured on
the approval of the superintendent of the Casting Company; that
the patterns were not to be paid for at the time but «a note was
executed by the defendants whereby they promised to pay the
Plaintiff the amount of the note (introduced in evidence by the
plaintiff) which was the proximate cost of the patterns to be
manufactured by Mr. Rabe on behalf of defendants; that there
‘Was a conversation at the time of the execution of the note
‘between Mr. Rabe and one of the defendants, in which it was
agreed thet the nete should be delivered ae collaters] security
‘for the patterns which were to be monufnactured by Keabe, who
ms Named as payee of the note; that at that time and before
| the execution of the note, it was agreed that the note wos
| @@livered merely as collateral security and was not to become
(@ffective and binding until the patterns had been made by the
| Payee of the note, as hed been indicated by the potterns and
the drawings and according to the epecifications; thet the note
hh Mot to be valid and enforceable umlesa and until the
‘patterns so made complicc with the drawings and specifications;
}
ee
my
ia
a
gehere .0 +0 989 on cwomk atewrt? wel soamoe o mt atodblederas
gairesootwnen te aasniand ot si bogegne sow stolate’ . yan
stachapteh .odox aid Re edad ens ao dedd goreizsag teqmud=te
‘ald ah paw ode ,aden ocd Yo ooyag. ody lolalt 0890 os betta:
te wsetoc want add ot cen rot -ernedeeg: wnttaa tensa
aiat ton ad peiwioocon ebiw eruisiteq evad oF come tnew a
niassos sald qyoqua aeti ead wLteved La akroot to ‘ainemwehai
ads Yo nehneenNnegen aad ‘e obit reed bass entotode baa bonne
et. ovmsbive mk benette erew assiosedta tohaw oa. sf
to seartackwrmn o¢ OF otOWw neeteag seedtt dante, anottcolthsnal
Suis TURAYMED QabIna® ose Io Imohsataluogae sad, to, Levesgen 4
Baw Ooemt dad outs ost dm 10% dheq od. 6) don etew. pameddag, a
ot Yon od featmorg Yoold yerpdw etnabme hod sat) ya; ho taoey
aiid "Yi Sanobtve mt boowhOrdas) efes oA Ro demowm weld Wedtmbal
ad ad suyerdag oft To sees otontxong ort aaw’ dotdw (Rhonda
oe tedt duct patmebce'tek to Bhaded ap: essa sth reas ou tai
pen odd Io metigosxe ode Nenad off 9\ sabtommempe: a:
gow oh Modde al yrtardaoten eds 20: 200 bad edad i mows
yutiawoon Leosegaiios as bezovileh od biviesta etom ont aut fa ce
“ott qbdol Ye betutontemem od oF wrew Metitw emiedteg oft m4
‘wTOYed See amt gay dal only sedon etd Yo woyaq’ bald oe :
ake oten ott datt Smowge now ek .odow eae te medeeoes
auoved of Jom anw dae wiswbew Leretal£oo ae bosons ON tk
oft Yd daw novd dad ameoitng weld KRY pakbale Diih evteoey
hte wrod Jog Ges YE Hogoodhal sews hot eo voted wae a ny
atom oy set? Taneises Ptinage veld os watbaobon bas sgkttwaiths
vas Ika ba ovotuw sidenote Xe bas “Swe od od toit
“Gumott ool ose hae aystkwetb weld! abet pabtamce shen 08 eis
DM Mme eM) MBE oe a te sere
<3
that these patterns were never furnished in compliance wikth
the drawings or ao ae to meet the specifications; that aa a
matter of fact, the superintendent of the Casting Company
disproved the patterns and delivery was not made of the patterns
as per the sketches; that the delivery of the patterns was not
meade within o rexsomable time after the payee, Rape, had agreed
to mke delivery, and thst the payee, ave, further agreed that
et the time of the delivery of the mote the mote would not be-
Gome valid and enfor¢exnble unlece the patterns were delivered
within « ressonable time, and tht the note woe delivered on
these conditions.
This offered evicence was exeludec and the jury
imstructed to bring in » verdict for the full amount of the
note with interest.
Seetion 59 ef the Begotiable Inetrumente law,
(Ceahill's Stat., chap. 98, pare 79) provides:
*“ivery holder is deemed prima facie to be a
holder in due course, but when it is shown that
the title of omy persen who has negotiated the
instrument was defective, the burden ia on the
holder to prove thet he or some person under whom
he claims ecquired the title as e holder in due
course; but the last mentioned rule does not apply
in favor of a party whe became sound on the
instrument prior to the acquizition of the
| defective title.”
Section 55, cheep. 9%, pare 75, Cahill's Stat.,
provides:
"The title of a persen who negotictes an
instrument is defective within the meaning of
this Act when he obtained the instrument, or any
signature thereto, by fraud, durese, or force
and fear, or other unlawful means, or for an
dllegsl consideration or when he negotiates it
in breach of faith, or under such circumstances
as amount te a fraud."
Wi
iis
|.
HS
a
i
-
aes
Maaw comatLgmoo Bh hedie isnt OVER w TON eoOd seg. enpmt. bay
&. 8d told fom Roos inage ead Soames eo OB (0 8 ROLE,
eae. ykson oh? te Imehagdakiegue ead «toa, we aga
asecteg, gtd %o chem, Jom cow yRoviles bas ausesdng , orld bovexgn:
| ton Se ARP deg MAI IW YRovdLeh oali dads geadegeda, odd. gags
berms, Haak Odo somerg aid tod te sald eldanoanens heise aplri
told dpetge vesidewt —edel sete os Pad? baw, aero reson |
96 tom, oiwow o¢am odd ofan ahd Ye Yxovsion add, to emt ‘
hoiovidod ones aretseq on. soedmg. eidnes ze ma, parenaipe
80: denen tion: naw gtos pall dodht dete, anmnt pplensscsubais:
nut gone a ee 9 ROO AF Sn
a) nas roy Debutoxr saw wpnnbe Te bem 2Bes MLB ”
at te ecanis shor. att 20% Spthaoy, a mb pebemintad batons,
af capil aaiiead tig ig vy § ‘ iy) aa Nm Be Ma Ay, 2 Hf
r Taaey § i d Tae AER: GRR, 4
_—% awe
: te is ai soem, pada a
wow te 8.
ge oe erat: ye
vhage si eiwa Somat nam 3 da . ‘us tenauee :
ig te aoittohapea, oa 98 xe he Paomuasemt
yoda @TLLaeD (OR coy 180 yale! 68 RiteeeR OK
tee aitohiegen caw meetog o Be.
eure 2 gals rtd bv fe ovtsos ca
toramaes
cat ot) ssa6 =n aonb han We 4 ll vogecents aa ’
a 20%. ae ‘ ee ) chal
ee:
im the absence of « brief by the pleintiff, 4% will
be unnecesaury to discuss the question involved at length.
It is apparent that if the offered evidence had been received
it would have tended to show that the uote had been negotiated
in breach of faith and under such circumstances ae world amount
toa fraud. this proof would have overcome the prima facie
presumption that plsintiff was « selder im due course and made
4t mecessory for plaintiff to preve to the estiefsaction of the
jury thet 1% bed acquired title to the mete as a holder in due
Gourse. Bell v. MeDonald, 308 Ill. 329; Kilegin v. Ortell,
302 Ill. 531; Straus yo Citizen's “tate Bank, 254 112. labs
Justice v. Stonecipher, 267 Ill. 448% Sehintz v. dmerican
rust & cnvings Bank, 152 111. App. 765 lute y+ Matheny, 208
Til. App. 405 Feru State Rank v. Waggett, 250 111. pp. 522.
For the errer of the court in excluding this evidence,
the judgment is reversed and the cause remanded.
REVEREED AML KRMANDED,
MoSurely, P. J., and Johnston, J+, concurs
{|
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“ssldpanl ‘ja ‘pevtownt ‘ib bdnany old “easoukb od exe endl
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teuema biwow svonadamuotte ‘fone “soba ‘pin ke ee
aa a omeoova per bs 1 deuae Gia ernie
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tad bal 8 to He x tal
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of
18} - 31080
WARY B, BIGHIN, Adminietratrix ef
the Betate of Charles bichin,
Deceased, 6) A
t Ai if Le ¢ y +
SU)
Complainant and Appellee,
vs, :
}
}
JOMN PV, RICNIA, PASH C. SICHIR snd |
@ODLIP A, BURESH,
Pefendarntra. ;
)
Om Aprenl by FRED C, HICHIN and
(@ODLIP A, BURESH,
Appellants.
APPEAL PROM SUPERION GoMet,
COOK COUR TY,
MA, PRAGIVIEG JUSTICE GRIDLEY DELIVERED THe OPIRION OF THe covRT,
F This appeal by two of the defendants from a decree
ef the Superior court of Cook county, entered November 5, 1926,
has been consolidated for hearing with a writ af errer cause,
ts. M217, suet out by ali three defendants te reverse said
decree.
Vor the Feneons atated in our opinion this day
‘filed in said writ ef error enuse, No. 31219, the decree of
‘the Superior court is affirmed,
AFFIRMED,
Fite an? Barnes, J3,, soneur.
Daa a0 tne Hom anata,
sl) m8
ies
e802. net vo omeedi any cuneviare ure met ater
st qteomakmome tt tM at
eoneen 9 baal shmahae tes eah ‘te ome a kanaaa “eter
Ve Ben Alene
Nae 4 4s Be ere
bay =
esves Datetne eetautoe dood to tuvoo data wr pe
pina ‘serve Ye Siar > ed altel a si
sakict ag ih ‘ced cd tue bean 0 vase | bie
ne Peewee ek ti
shia ORE “sbeanatte th no
ra
TARA TUTA
37 + #31149
AININA GERCKE,
Plaintiff in orrer, BROOR TO SUPERIOR COURT,
ve Cook COUNTY.
WILLIAM GERCKE,
Befendent in Srrer.
Sane 2 a el ee Rue
eee
2 4
441-4688
Me PRESIDING JUSTIC“ QAIDLEY DELIVERS D ous a cae A “rms f
By thie writ of error Alvina Gercke seeke to reveree
eertain portions of « dweree of the Superior Court of Cook
County, affecting the property rights of the parties, entered
ina divorcee proceeding on February 14, 1926. The divorcee
‘gronted to her from her husband, “illiam Gereke, is not here
gueationed.
‘% Among the errors assigned by her and argued by her
eounsel are (a) that the trial court “erred in entering the
“decree regarding her property rights,” and (b) that “the decree
| determining the property rights of the parties in contrary to
lew ané equity.” it appears from the plesdinge and the evidence
t when she filed her bill (Devomber 6, 1923), fellowed by
fendent filing « cresn-bill, the parties owned in joint
y two pieces of improved real estate in Chicego, which
the time of the surriage (January 19, 1917) were owned by
Gereke alene, ~ one ut Ho. 3104 Prenecisece avenue and
other at No. 3755 NM. Albany avenue. The court found inter
that entd two pieces rightfully belonged to “illiam Gereke
deerecd that the title thereto “be and the same is hereby
sQlely and absolutely® in him, free and clear of my
or lien whatsoever, and thet “Alvina Gereke execute euch
THOS KOTARLUA OF ore
| eYTRUOD ROOD.
kK
yi
ye ae és. at
"88 2.0" eo A.T Bis ERT CAVET A KOELAD, vous ens aie oa
s a
eerores ag aeon oatoan® antvta <oxae Yo aba anit ae |
soad te #90 todseqad edd Yo waxced « to ane ke cog ateee
‘powenne: seotsuay. one Te wedgiy KoReQoTy, One: Sabiootin wydawe
_posonte eaT 080K yEL Yxovndet no yathowoowy eoxpveh a
sid t Saab,” SRK ‘SAE
_ 40d ton ak y9k0798, maeth: “sind ed mor’, aod 99. Scams
EL OR eh ares sae ea a bomedd aon
en x, homgse bem, nk ah aaaliaal onieite Wadi oa tl
‘ ast wadvedue ah boone" fwroo Intet ede sett (a) ote foenme
oeisas os" dacs (d) hast “yadeighn YeRaqomy wet Qetoregen aOTOD,
of qastemae wf eo heaton, outs, 30 eéstyday Wr eqoRg etd peters ee
aonebive oad fant apehbooty ole eon weinbgy. a 2k meee tae baw
Yo NOWELL ¢ (COL 9d codmaoel) LEkd nod boLey one moro dost
jatel a2 benwo aelineg walt «Litd-owore @ waneay: suntaote
Hntsw yopeedd at otedeo Leon neworgms: te i
vd bonwo over (TLOL (AL yeah) sgakrren ode to omke owe ’
hte ea Hoekoaatt DOLE 0% ga sem © ~eagta siored mahi te
, Sedgk bewet suaoo eat. «ommeyn quedsa «Wt care 0m dm weal ont
dota moLiLty 0% begaofed YLLahsdght eopobe ond Gino dads wh
vdeo ek oaiom oF bes oG” OFaxedd OLOks orld Fuld hooapeb mt
Yee he tool dae, ooxk gimtd mh, “ybnawhands bee uetes oodew
oun odepaxo odotel amkvla® desta baw neennne tam mend: hil ure
eRe
deed or deeds of re-conveyance, aa shall re-invest the title
to said premises solely in “4lliam Gercke, within five deys of
the entry hereof, and upom her failure se te do, thut said
master in chanoery, * * make such Recgasary deed or deeds af
said premises" in her name, as shall effectuate and complete
the title thereto, in fee simple, solely in him,
In view of the pleadings, the deoree and che et dale
mente of error, wo are of the opinion that this appellate court
is without jurisdiction to heer and fully determine the present
writ of errer cause, beenuse a freehold is directly involved,
anc that it must be transferred to the Supremes Court under
section 102 of the Practice ~et. (Srouty x. Moga, 188 Ill.
84, 85; MeComb v. Mevomb, 238 id. 555, S5é3 Robmett vw. Miller,
303 id. 515, 5133 Lewis ¥: Lewis, 316 id. 447, 449.) in the
Lewis case it is decided thet a» freehold is involved in a decree
@f divorce, which prevides that, in settling preperty rights,
Ome of the parties vonvey to the other all her interest in
Property held by them im joint teneney. hie is the effeet of
® portion of the deerce in .uestion. nd the fact thot there
biuad other questions invelved in the present writ ef. error cause
desices that of « freeheld, as to which other questions if
they stood alone on the record this eourt might properly
exercise appeliete Jjurisdiotion, does not warrant thie court
im deciding the entire couse upon ite merits, (Marvin v» Collins,
Tn. APP+ 355, 5543 Mo¥urland v. MeForland, 72 id. 425, 4265
Bimlesrs v. ovis & co., $17 Ills 31%) 322.) Se far, however, as
~ decree purports to affect certain property rights of Yronk
(® soa of Alvina Gercke by a former marriage), who
AB sued out © seporate writ of errer to reverse portions of the
upon the eole ground that he wae not made a purty to the
Ad
| . ‘geet te bitd ‘at ‘etd “ebaiadd Vee it phen
“#
olskd od? fqevat-ox lade as ,ooneyovmoo~oe to ated xo es
to ayad evi? aidtiw ,odenet mehife’ at ylolos von taorg yak i
biee got .ob of oe oxmiio® xed mega baw, sv hoored ‘ceonte oO
te shook vo dood YYeeaecen Aten elas * * eGroonede at sotes
aieiqmes bas esagieette LLaie an ¢ouat tos me “neater, bar
"embed Yieten yelgnta ob? nd evoneite okete ”
‘ aly Aienae erie bee sowed ons ~agmtioel¢ e6s Re woly ah «ttl
‘roe stalloqgs oka ass wiseiniyie ace Lo ore Ow ,tettS 20 ° ime
sone wate enkaned oh eid bas used oo me Rdatbs test, empet .
sheviovn yoorth ‘ab bLosleor®. A Gained (bail Nadie re dite 0 ‘8
, rota tenn ne a oi? of Swrtetaduas od dane #8 dod? tim
‘3 511 nas 12908 sy wauewd) odes sondnatt Maia" ‘ROL ‘mokede
eROLEIM oy d¢omdod ysad 288 bi Bee”, a ia $8 100 4
eal mt (.0bm Q0Dd she OLE aaleel iv ofwal_ $8L8 4 8Le soko
semen 9 ah bovieowsh at ptodoeet' w dou beblood atowk ened:
ead ui Lacey ghakigson at , todd eebiverg dokdw'y
“mk deoxednt ved Lhe cinido oe we YsentOD: swhinog mild 20:9
nies
“exods toe dont wld bin satekYnowy Ae pore. h wie he mM
seue ‘toute es Phew devndxy ott mi bevfeval eek wes
tt atoldaesp ratte dotdy of wo gbiertvevt w Ye Sante |
ehxoqerq dd la Prvee ahd Weked sity te mote bootey
“pero aldé stemtrew Jon eee’ veo kdortoa tte th’ eam
emibied .v mhvedl) seebuten o&t migw dies outdo veils: ,
(Oh 0b bE 8 hmaksAOR ov MaakeNtA ERE GEOR ene “a
aa (_tevewos eter’ ee “lear Ay ‘oe SRL OLA Ga & ties.
Rae “té whale eeteyonq aindree 20% of sdmeqzag oF
‘eat y (opndenda a Yoon a) y
edd to anelixog’ saxoven 2 setts Yo" Stew Stetodaw a due h
ene of wtcag 4 ohan sox saw ot cnt Savona aon ah mous »
i on, we think «e may tuke jurisdiction to deekere (as
0 heve wo declared im 4M opinion this day filed, Case Ba»
: 1 50) thet suid portions of the deeres as affect his property
iguts are void for want of juriediction. | |
a The present writ of errer cumee will be transferred
othe Supreme Court.
4 CAUSE TRANGYBRNED TO THX SUPREME count.
Ateh ond Burnes, ides concurs
an
“ts otto i aati lat a's sida ie
‘ey ‘sau bad vpetet ei eins ne eae 2 7
Jom ahd toorte as teint oti 9
ha, wala mei Devil Hiheveng
“sa do niet mansieoe’
Pou wee Aka wt es i soot Meteree ae aL wt nim, Naa.
My i ess adanena we bhi Tae “ested (08
sbeelovs 4 yfitna ah ah ‘eta’ va é pee edit hi
hes 1) ARE
wedhane eA reo eat ae
ae C RRR gg BM ‘ae et Per a aie ce ipo
weeand a ME Dintweel 4a hie vail ye — iad
DRE HN See be
te dow he ocd i eh” anne meee’ oe
“pot ahd lan” aN ae pelea ae
Maiben HERO te r) Ay Keeu Sting ante ont” es ‘ubiecioien “et,
ie he ah te hy sat ee ndw oe ‘aus GRO Oe
‘eee ‘bien il ina al or
( 4 “Ne iii Baie i vt hy des eal ne apitorauein te
weeaats ee
eh ge a) hia’ Os
ede ty Ae isles aces ” Saskia ots |
RE OP URE me
38 + 31150
PRANK SPALDING, ”
Plaintiff in irrer,
ERROR TO SUPERIOR couRT,
COUR GOUN?Y.
yf 4 A | PaOS
PWD O
MR. PRUCIDING JUSTICZ GRIDLAY MYLIVERED THs opLNrON oF THE COURT,
Veo
BILLIAM GERCKE and
AININA GERCKE,
Defendants in “rror.
By this writ of error Frank Spelding secks to reverse
portions of » decrees of the Superior court of Cook County »
entered in a diveree proceeding on Yebrucry 19, 1926, wherein
Alvinea Gercke wax comploinant and “illiam Gereke was defendant,
ane wherein “illiam filed a cross-bill weeking affirmative relief
in the settlement of his property rizhte.
it appears that “peiding, of legal age, ia the son of
divine by © former murringes that prior te the filing of her
bill for divorce against villian (Secomber 6, 1923), she and
WAllism had conveyed vy warranty deed to Spalding a certain piece
Of improved real estate in Chiesgo, known as No» 2048 Fletcher
street amd thet at the dete of the entry of ssid decree ‘pealiding
the legal title thereto. Op lding wae not made o perty te
| . ® Crowe-bill of William Gereke and did not appear av & party
4 the litigation.
\ By the decree ‘lvine was granted a divorce from
because of hie cruelty. As to their property rights
‘ court found, inter alia, thnt the perties were married on
18, 1917, and continued to cohsbit together until about
1, 2923; that at the time of the marringe Villiem
aN i Vive
ia UP,
Att |
HI
rae:
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ih
l
ii
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«THUGS ROLANUA OF AOE We Ee ad ic baw m ‘vay ag tin
METIS, ASD. “a wiox walt
—
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CO
209 feaes
-TAOH MAT CO WONG BHT CLAVE TaRGiRe aorta hee a .
1
; shee hh: gemnnan: Raee | vied
| OR 299% ov ane oe giboLage dent “ore nares ghuw aad yl
} sUiawo? Weed Ro sxwOo tolveqUe ot Ie soreeb 9 6 ~s
| ahecmiw yesel .bi Yraaredo"l al anihesoorg sonora & wi bow "
: sisisbusYod aaw oxfoxe0 mallis¥ bn aamtatgnos aew exorod anty
telies ovwkéamrk ths yatione {Licensee a beoLsr wabith® aterede
. saiate be wreqerq abs Raia) pas:
‘ke stow ods oh +9g0 hegsk Yo euatblag) sade eteoggs Jt
teak to BRLLiY edd of tolag idl tegel wien semr0} a ‘i ;
hee adie «(ones co todas oot) mm tk taaioga ooreven ~ :
eontg tladeres P gabe sage, of bead Waevacw xe beyevemoo: baat
weiogoL® BCS +0K an weoud cogmoldd mk etatae Leet hover
prtbleg® so 760% blew ‘to iéae wit Ye osnd ooht ao sacs as wn 4
os Ysuagq © hem ton vaw gorlbLegt soseredd signe Kogok «
Witieg | a es tneage dons bhe ban sipsal matte %e
‘smodtonte nt
mort sonnets: a bosmery « cl oath eh soroe® ond va
adsigt oregon ‘thoes aa aA oweioung whet . onuroad
a9 be basau oeow setszog ons tate eohke xodat «hewe
awed a iisaw zarl# egos akdastos od poantanee bene, eter :
- MBREELY ogakrtom of te oust out te bade HES ok
— ry
4
was the owner in fee simple of two impreved pieces of Uhienge
real estate, ome known aa No. 3104 Franciece ovenue and the
other as Mo. 3753 %. Albany evenue, and dlvina was the owner
in fee eimple ef » third improved pieoe of Chieage real estate,
known as 2951 HN. Oakley avenue, which “was subsequently traded”
for the No. 2948 Fietcher street property; thet “ilidem and
Alvina agreed that the three pieces of real eatate should be
put im their joint names, ae joint tenants and not ag tenonts
in common, “which was done secordingiys" that at the time of
the marriage Yilliam also owned about 20 nores of land in the
state of Michigan, and ehortiy thereafter he desired to deed
the seme to his son by a former patehaie, and slvins joined
with him in executing euch a deed to said song that Alvine
“protested” against her executing such deed wnlese Yiliiam would
sign a contract providing that said Pletcher atrest property
should at Alvina's death (in cane she died before William) de
Gonveyed in joint tenoncy to her son, Frank “pulding, ond her
Musband, "illiem, and thet Yilliam "“ngreed te auch condition;”
thet William connet resdily understend ond doce not speak the
English language; ond that William, in subsequent negotiations
had with » reel estate agent for the apparent purpose of putting
Much agreement in writing, joined with Alvina in signing and
delivering & warrenty dead (mot recorded until juct before
| Alvina and William separated, December 1, 1923) of eaid FPletehor
atrect property, conveying the same ebsolutely to said Frank
oF ing, ~ ®illiom «t the time believing thet the pspers which
he signed were in accord with said agreements that <lvina,
the execution of said deed and until about December 1,
uses motiihy sastay ‘hood dow amisupexs cod fomtage *
“fi
ageolso te eeoutqg bovetemt ews to olqmin wot mi cacwe ote an
(oat Ona oumew ovglomett 20L6 vol eo simeets ono. getateo Lae
sere ons aw amivl). hme ,eunewn yaadis aM GOhe cot ee tants
yodsted Laer egeoid® ‘te saviq bevexqal Sutdd « te ofgmle o8%
“bobar? ylemenpeadus say" dotdw ,oumoys yoLaed ot tees - aren
bas makiSt© gost bed xeg org deoxds roristert BOR «olor * tial
ed bLvods otaten fswn te asookg oundd ond dadd beoxge omkyd
stnened an dom bun etramed date a cvomom dmbot ated? mi 2s
Ro ould sed fn dest? *“Gylantbxeoes one pen ip ako" anes é
‘gets tk oma te weton Os suods beawe ata mariere ogeleres ea
hes 09 dortwoh om ro¢%eoxedd (62seds bin yasgtsiots Yo te edad
"Banka ‘iekei bee pegakxien ourra 's w nee Elif 02 9am ‘om tage
Vamtyls dad ta00 bian of boob a owe ‘Badauooxe at mtd aah
a) Biogen Ch ae (eos
ee
Oa rep a, § Piney ‘std
giteqety doors xedotele bine toad yotbtvorg %.
“ed (mnksct acted beth eats “pend wh) ddned sill sh piven
ced ban patbiogs “¥eowt ato8 aed ee rem aioe nt be ae
Manta lites dous of hoor” mob itt¥ sada ba etLIV coms
“auld Maggs toa aved ‘Reto band erabaw at ehhh’ bea
te a a8 “bormum | i
sno lialtopon tmoupondivs mk maki ti dans haw boguvanad
a 1h SARS
BRS RM Ba aah
amtdimg te oroquuy ‘Sao tage oats ‘we? jnege etadee fnes a ‘ dtie ‘a
Ban Gr ei ORR AY
ome pekayte i agbyis ath boutet vomid tow ad smoue wpe oH
i wk hin Lies gs a
“probed Sou Lbiom hebteoss som) hoob Qaertow © yaltore
i pola ting
aoledest shai ™ {Ree af Codennnt batotaqea wii ail w.
at Bie VEN ihbed i Sy) Pr '
anant bee ot viotutonds oan outs Ayo rttos ats Bogen
Page aay At "a eas prs! ‘Die ea 3
the ksi ‘axeqee od dnete apshvo ied oaks asia Gm wohtiht ~ ggmkdLat
a | Ue oe De fea “90 | i
gamle souss {duonvonpe kee sake byesea ous br gec : 4
i CRT inte ai # in
ks toddaeo0d swede sitae bates been. phan to aelinoexe hyped ce |
; ree gate hey mh! wae Ree Rie a gil ned
1923, collected ali rents on said Pletcher street preperty
and signed all rent receipts in her own wine, and thet, during
the year 1920, an exdating lean en said property was extended
im the memes of -lvina and William, and net in opalding's name,
amc that for severnl Fears prior te their eeparation Willie
amd Alvin kept sceounte im two Chienge banks in their joint
manes, and shortly prier to the seperation the moneys in these
accounts agaregates about $1806, ®ll ef which (ivina érew out
for her own use ond benefit about December de 1923,
The court deereed in substance that the Franeises
Svenue and HW. Albany ovenue Properties “be vested solely and
absolutely” in Willfam Gereke and that Alvina Gereke “execute
Such deeé or deeds of FewGOnVEyance as shall re-invest the title
te Said premices" solely in Williom Gereke within five days,
@te.s thet aivina pay to Wiliam $1300, we withdrawn from satd
banks, less $200 fer her reasonable seliciter's feesg and that
William “have a lien for the balance thereof upon the promises
MMown 2s 2948 Fletcher street,” Chienge, "title to which is
hela by aid son of Alvina Gercke for her use and benefit® and
| that “execution iseue therefor,” and that Alvina pay the coots,
ate
: The only errors aopigned vy Frank opolding and argued
by Kis counsel are. in substanee thot the court erred (1) in
dsereeing that for the amounts geereed to be paid to “112 4dem the
| ntter should have a lien upon the Fletcher street property and
(2) in entering such « decrec, where it appears that Spalding
"y Mot = party te said suit either under the bill or eross-bill.”
Inasmuch as the present record dis¢loses that
holds the legal title te said Pletcher street property
of
ywuwoqexq sootte sededelt blan wo adaws iin besoelion 1820
gartduas hy edanstd ‘bane eomact tes tod at etatenot wer {Le hoommke fa
bobnetxe saw Yizoqotg Bian Mo naot gotsebxo ma .ONGL newy eM
gemon atgathing WE fom ma (tei lew pie enkvl Mo women ott a
nakLEh mokteunqoe aed? 0f Stag ented Loxives tet add te
dntot ihede ai extmted egeoktD omy AE adnilovon sqed omtvBN ibe
waed ek gyomom oft molietagea ate od soheg Utteds bem saom
tue woxh anivi) doide to ffs bdr sueds bodoge raya’ adnsose
! .E80L of toduseot Peds shieited bite eau tino xed x6
“opatoanst odd dott sonsdodva AL hooxobh. ‘study sat “a
' ” hace ‘yokes hodeoe od” selsxoqerg eisnewys “Seba a tas -
eiuroaxe” eaire® antvts “ged brut oxo et ‘maartee ah’
eithe ents ‘guovaleex LL aste aa sony vHOO-or ‘te bene % Boob
saved owed Bisls bw stored mabitey at vetoed “ava thor 6:
ton wor? mwa te oe 2008.Le asiitie os we ‘entves Yate!
tats ax | toot stxod totes eddagoaces, ‘od et cont “ane «
sdeon oat wa aabels taal ‘ome Selves sunk oe ’
LEN Satta linked | Open de
bouga, Seta “pal binge staeas “é lids SiR ‘atette | ve ee ey: :
BN RS 6 berte ‘Foe edt tad sonsdaded at exe xs earaiee a
add anh ttt od bhag of of booteoh adatrome oat ‘vot bicw th ‘s
| "bite wegoR ‘foonds tododult oss’ ‘sega ‘wok Pena’ rien
“pubblag? tans @raogge Jf ovedw avdtoos 2 dose atest
":tkkd-nsoxs to Lisd sate Gabaw ‘ostbite’ ¢hile bhne ed Wang: 0 40H"
o" "Padt weno tock Piooo tavaetg one aa poesnisais 4
eeroqer Cdorte camddolt bkow' 62 of¥2d Lughat OnLod path
o4>
and presumably has some interest therein, and s¢ he was not
madé a party to the croge-bill or to the litigation, we are
of the opinion thet he hed such am interest in the procevdings
and decree as werranteéd him in auing out the presemt writ ef
error; (inderson ve. Steger, 173 Tlie 122, 117¢ People ve
O'Connell, 252 Ill. 304, 303; People vy. Harrigam, 294 Lil.
171, 173); and thet the Superior ceurt wae without juria-
diction to enter any decree vhich gives to “illiem Gereke a
liea for «my amount upon ‘paléing's Pletcher street property,
and that those portions of the decree aa affect ipalding’s
fights in waid property (whatever they may be) are void. He
should have been mide a party te the prosecdings end been given
@A opportunity te defend. (Yan Viest v. tevitt, 200 I11. 183,
286.) It ie » rule im equity thet all persone whe have any
substantial legal or veneficisl interest in the subject matter
im litigation and who will be muterinlly affeoted by the decree
Bust be mace parties. (Riley v. Webb, 272 111. 537, 538+)
ana the objection that there is » lack of proper parties may
be taken at the hearing or in » court of review on appeal or
ou error. (Knopf _v. Chiengo Neal Eotote Board, 173 111. 196,
‘201; Larson v. Glos, 235 Ill. 884, 58a.)
Accordingly, #11 portions of the decree that purport
te affect any, right, title or interest which Fronk Spalding
my have in said Fletcher street property, anc to create any
en thereon in faver of Yilliom Gereke, is reversed.
} DECKER REVERGES AS TO THE PORTIONS MEANTIONZD.
and Barnes, JJ., concurs
* BBx veer’ vba”,
ih
=
an wf
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aan
ae
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‘Er oe8 smsguixEel 2 efgees, "1006 120 « 54 $28 ‘sone!
Lg Fen Seeds iw aw duien robreqwe ¢ ous ‘ied, oh (ete £ ft
avi egy regret
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& Megaware Rite | a Hgts
i tynkh tage soetta a eaxeoh hes ‘. ane 12 109 4 % raed
a .eter ose (od ane wuld ‘wovedavte) wrecomt Slag ab a te
nevly ‘Med bas ‘iaulisions 9 oats fh. Wis. * nea, aead whi
the. oY) rieoteh of yd
bx gaton “dey keene
‘ye evad ost akon 2e¢ ite Ysa xe tape ah Presi
eotdie doeydin ada wi “gnivcoomt Ente tome 70 Kye £
odaees bats Ye Bedoo tte utente dom og a one bas mols
~odvoae grea ditr eee dab Te eohlay oe sits |
yet eeidiog Yoqotg to eee a wn i deal on a petit yy
‘WO Saeqge No odbvet te dittes ‘a " a2 ‘a0 chased ont ha
OE LET vt (itso sduded tool onvetdo
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pve ev thts beveod off te eno z0g tha ¢ ,
guthtegi snow doit gaoreInd xo SLPS «talgix «ye
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sc DE THE Seivnisinte Hoag or st'tigehees .
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wipe dawala
119 - 31246
G5A Be MIAER,
Plaintiff in Error, EREGE 26 SG°2R 10K
COURT, GOOR GOUSTY.
S44] |
om. PASSIBING JUSTIC“ GRIDLEY DELIVERED THE OFIRIGE OF THA COURT
Ve
YELL? CAB CORPAEY,
@ corperction,
Defendant in Errer.
O2— et Pee tae! Mim ane
in an action for damages for personal injuries received
‘by plaintiff im a collision of two texieabs on one of the drives
dm Lincoln Park, Chiesgo, om the afterneon of July 11, 1925, the
4 » at the elose of all the evidence, inetructed the jury te
the Yellow cab Company mot guilty. They returned euch ver-
end, after plaintiff's motiene for a mew trial and in arrest
judgment hed been overruled, the court entered judgment against
fer costs, which she seeks by this «rit of errer te reverae*
The action “as commenced against the Cab Company and
J. Begers, the ovner end driver ef the so-called “brow”
in which plsintiff was a passenger st the time of the
: lent. <t the end of the trinl pinintiff dismissed the suit
B te Mogers. Her original declaration consisted of tvo counts,
“$e which the Yellow Cab Co. pleaded the gencral issue. he first
éefendants with negligence generally in the operstion of
réspective cabs and that as @ reeult of the collision
ff, while in the exercise of due cere, ete., wae seriously
ind permanently injured. The second charged the Yellow Cab Co.
witn nogiigence in driving its cab at = epeed im excess of 15
Miles an hour in « residence portion of the eity, contrary to
the statute, and both defendants with other negligence. Te these
the Yellow Cab Co. filed « plea of the general issue.
sales Sa oe. aon
oXTUOD 2 BOSD shes
ede ,asek UL vist te neserted to ‘ond. ae coped eater
of isl sdf Setert?enk seomebiys wi? iis te oeeie ‘etd oa ot os
~gey dawe heared s+ wat veetig tes aera seo woLleY ce hod ’ .
feevte ai bes felad wom s 0% shakes etsniiataig: ‘setts <i |
dunioas Aaombut bers2ae swan on} sbokwraere wood iat dusmpant ©
i# ihre oy Be re &
*antever 23 19729 ts flue ‘ahaa ‘e stcon ada, doles Spa ES
: ¥ ye hy SB pee be cig ae
523. qaeqmed ‘dao’ asi? semtage seomesame eaw noises vege se
Shims eeiioeteg cy
“awoxd” boitad~o8 odd to soviet tase eae oult « oh Og
eats 0 mks ead aa ‘egnocneg 2 sow Thomtaty dotde
sted od¢ boncinaté ‘dai oie tai ote te ‘bas mag a
ei ee a LA - mas
aemee owl te beds lenes ap lanrakovs Kandy ise 0h 58
5% ~ ta RZ: ee as
toxkt sh? souest faxsamy ‘odd Soheotg, ‘ak 6
sateh 4a Shiit tee
Qe néidnceqe od? wt “efexoneg | : © i
potelifes ade 18 itesot a a aes See
yuusixes eae sr080 2789 per te mick ®
-00 da) wolleY od? begusie bnsose eat Seals ches
&f Yo sevexe mt sooga « dn dae efi amiviah ak ost af.
wee: = oS penoen. Sees DN
ef yuerises .yite eds Ye molaxeq sommbisos 9 ak twad me: |
esis ef -sccegilyem xesdeo dthe edmeaaston ded na wedaiose 8
wt 3% a
vowoak Leaeten mid Yo ang @ BALER 0d du wOLteY ott
eke
Before the trial plaintifi filed an acditional count charging
beth defendants with willfal one centon negligence and it was
Ordereé tet esid plea of the Yeliew Sab Ce. stand «sc 4 plen thereto.
In accition to witnesses as to the choracter and extent
of pleinsiff's injuries, sme called five witmesses, all of whom
testified as to the details of tne accident. “he alge teatified
@enesrning the game, as did George J. Nogers, the driver ef the
‘brown cab, “ho was ealled by the court. “hen plaintiff had rested,
‘the court, on motion of the Yellew Cab Co. and sever her objection,
instructed the jury that she could not recever from it umder the
itional count and that they must disregard said count as to ite
upom the Cab Company mevec the court to instruct the jury te
mad it mot cuilty 2a to the reumsining counts, and, ac etated in
Bill ef exceptions, “the court reserved the decision of the
ption and for the time being refased io give said instruction to
jury snd merked it ‘refused’.* Thereupon the Cb Company
Ste: e¢ ite evidence and two wliuesees testified in ite behalf,
‘Wis, the chauffeur of the Yellow Unb, Jacob Sehiex, and another
meuffeur empleyed by it, “he happoned te be im the vieinity at
he time of the collision. t the close of ali the evidenee the
. Compomy renewed its motien for « directed vardiet in ite farer,
i, over pluintirf's objection, the court gave the requested
s ruction amé the jury returned « vordiet ageordingly.
«sis he ‘testimony of plaintiff's witnesses, and that of
Bers, dinclosed im substance the fellewing: Om the afternoon
’ Ai, 1925, plaintiff and the «itness, ica Serviss, after
® arrival at the Grand Trunk railesy station ia Chieage from
facstion trip, hired the brown cab s¢ take them to plainti?f's
, @t 4446 Sheridan read. Om the way they travelled north
mh Lincoln ark. It wos raining ané the streets vere
er. + The secicent happened just south of Selmont avenue y
-
gutiyinio devo Leieliiohs ms welt Yhivalslg kabee ‘eds por
ear ¢h bas seaeptigen mesmew gan Lwtttiw atiw ad gape to ae
g@eaad?d aolg a an bimsda 269 dno wellLe¥ esis te weoig biew dead a
ixvdxe bee xstehteds 83 of as esesont be. of metitnne ot” Pigg.
snot ile ~aoeseritiv evil seifee asa packautal es ernigtate
eeitigass gale safe stuabiens nsit Yo eLiodeh geld. ise Liat bo ZT ise
mig te wevixe eds <a 8yotl at sgiest bib oe oe edd podersin
eg batawrs at Baktatatg seek <o1808 ane w betLea aaw ose dao ane
erepere
1aeiJoride a lela bees oo én wolie® pr or en hsou ab truss @
he Kohn 4E wort cewweE som bhvos oda dais coh, ade Sotownts
dt oF ee ‘tae Ree ‘oingeters sam quid dul? Bae dene 10 §
s? seat ar douesuns ee damon euiz seven eager a3. old vi guvas
aE hadsds ge ,hea (eitines gabsthouwe edd er 2a ekiey tem
‘ete Ys weteiesd ed? geveseed exues ene senedsqsene 20. £
” dolsouttaad else evig of sean tes gated cabs cade, 9 be |
gemieeS Ga0 sk? aeqwenedl *. theswtest 2h bedtom & hie
“ Eladeg Pre it asciiseua peakeae he ead: tan egaobiwe wel
aes bare eieiiie® Seeat .dk? -weeisY. ‘esit eo suet tence |
aise S8 mk ad 6 bakoggbM erie-ad bo ge pevetsae
od aatiebive bd Lis WO vaskD enh 8A » enpbeti len, std te
otewet wet at shinee Denvents sce anton att aawaeen
“ Sacral nen: Sean eet eaennnntite cba
sort egooid? ni woktese: spatter. is it i do -
o Mchemnte "oe sianatae ne meni ho
=3-
@n ¢aet and west etrest, in the outer or “extension” drive of
the perk. ‘There is am immer end an outer drive, and the tivo
évives, rumming mortkerly, ome tewirds exch other, and st
Belaent ayenue ikey ace but a short diagtance ep«rt. BZelment
Gyemue connects the two sud just nerth of 1% ts the triongle in
which the “heridam monument atande. The brown esb wan moving
Merth at « specd of about i: miles =u Hour, om the cant side of
the outer drive, “about twe feet from the grass.“ The pavement,
sbeut 60 feet «ide, was very slippery. “Gm the opposite side of
the drive, snd moving im a procescion eeutheriy, nesr the want
@d@ge, were three -utomebilesa - one, = secanm, driven by a women, <«
@Bother, = Suick touring ear about 45 feet Sehkinc the seden,
oy plaintiff's witness, dardim, - aac sce third the yeliow
| about 1906 feet behind the Suiek gar. The sedem and Buick
ears Were trevelling st « speed of trem 15 te 20 miles an hour.
The @river of the sedan cur fer some reaseom suddenly checked ite
apece @né it skidded tovards the test and, passing the brown enb,
” ® toa ctep. Ite sudden cheeking amd ekidéing caused Herdin
‘Be eudcenly check the speed of Biz Buick eur and it also skidded
Bede the brow: ead, hit it but did mo damage te it, and came
J 2 stop. Sy this time the br on ecb had stopped and it stood
B the east side of the drive, near the east edge, facing north.
en the yellow cab, which had beem moving without cheine st a
Sed of sbout 35 miles an hour, skidded, crossed the drive at on
am of wbout 45 degrees, whirled, collided with the brown cab,
ov 6 it back m little, and cane to = stop partly in the drive
7 ? @n the grass ie the @aut. The foree of the collision
much thet one of the wheele of the brewn exh was knocked
. one of ite axles broken and ite radicter jamed against
'm er, etc. Plaintiff was thrown forward and downward.
truck the glass portitiom im front ef her, breaking
|
mest
cs
are
So eee a=
ia PR ap as
te evite “so inmeine” ze heated heel ak pions sage r, bese, fens
“est said las yovino rodue me bea sammi ne of oxed? ae Si
witee We
32 ome vinaize Hone aireewes Poet ivedté some grkonus 9) sev
Ls bb é s 7 ie uma. sna
Sevpank ot a — wounda reste w ae 2 Nom
mt skgnnts? aia ek 38 2 sax08 tout bm ood =. ad asnites cenee, Sep%
Batvens 2 aaw Sze wore ont -abnasa ed aubbsode ade
ws ebis 4 jana | ad ao owed as aegis es panes Sooge a fm sts
eénsneros edt “.20nty ene mos? took ous dueds* eoeizd us3a¢ s
2 ESE Seas eS TS eee DER
ee aS Ot arene ee ae ee ant
SOEs a ge
“deen ont teen extxedsves molnemnesg, a BE pnhven bus &
ee fm oe
pie. Gee Be PR ee OF ee cape 2 OMe
- ata 8 “ sovitb ma bee s one ~ wal éemodun peste
AMY RES. Ga: QRS ea
“ aban eds ‘paldied de? ee Sed, beg selawed gens
seks pee 2
weitey edd ckdé ond ‘bas = ymbivest aarti etrth : |
Gobet tas lnbas’ adv i che Holwh ons ‘halsded $00) OOF duo a
vised sit vatia 0% o@ Sf meri te boogs 9 Ia gabtiovent Pie
‘a8 besos Lashes moasez anor oY ta0 mien a! 0
sino aweed of? gettecag “has re ee
albieli beatae gebbatve bua ‘yabtosdo aeeloe “at spe = ‘ose wk
«gosa
ae Sey age eete Yr)
babble onta $1 Sno x20 totid ald Yo dooge watt donde
ae ch
tetso Eo (42 08 Sa a
eh Bie
= ga
sek
es er
ots wks ssi0 duodi ie f gaiven 20d bei ese
Se gs — see Bee apa eg a eres
feos sedaines sdk fon
BS ROR ARES ee ic 3g
t id
* ig + sat
when
it amd ceusing severe gashes in her head, and hex richt knee
a@mé left leg were injured severciy. “che wag confined in a
hespiteal fer sbout wine vecks.
in view of the testimony introcweedé by plaintiff we
are of the opinion that the court erred im direeting the jury
te return a verdict in faver sf the Gab Company om the issuce
presented by the two ¢riginai counte and the plex therets, end -
dm entering the jucgment im ite fover upon sale Clreeted ver-
ades. Plisintiff's evidence temicd te ehow that, under the
' Cireumstancee «t and before the time of the collision, the
@river cf the yollew exb was negligent im met heving bie aute-
le under preper centrel and in propeliing it ever a slippery
without chains st an excessive rate ef apeed, and thet
negligence om his part wos the preximate cause of the
| sion snd plaintiff's reeulting injuries. ni because of
eomewnat conflicting testimeny of defermicnt's tee witnesses,
: questions, shether the driver of the yelies cab was cuilty
_ Of negligence as eherged and whether that negligence was the
— imate cause of the eoliision and plaintiff's injuries, vere
the jury anc aot for the court to determine. im Libby,
222 ilie 206, 212, it is seid: “In
¢ upon a sotion fer a pseremptery instruction the question
: the preponceranes ef the «evidence doce mot arise at all.
vi ently fairly tending to preve the esuse of action set out
3 the declaration may be the testimony of one witness: only,
md he any be directly contracicted by twenty witnesses of equal
r @teater credibility; «t11) the motion must be denied, * * «
When a motion for a peremptory imetruction is made
y the defendant, * * if the court is of the opinion that there
S evidence in the record which, standing alone, in sufficient
ial
he? SHE eat Seay fee Sse
vemd vig cod bas shoe 208 a sesiesy stoves gatagee aa :
% ee é = Sta x
£ i pent tace gue oat ‘suoteree sesmbak ers pat ater S
1 ees = teties -. ERS
saioow oakn ‘suede tet fad tgs
ot pe ee cre SN ate Sad
ee rebsaias ee heowerias aromiies? oxi % wotr ai
GREE Sah ae IBS
unt ads guisoct2d at bores srpes oats sash 1 sokatye odd to ba
weuiel oi me Yamysod ded ex? Yo rove at dolinew @ tuto |
38. Beg
i entornet og 062 ums ataver Lantpize ons edt WS betnoas
a ete. SS
Woy REZ00T2> Dhow mogU Sove? Hat mt ; dmempbot ads gatneene
_ eat soho - sans sede “8 bobees somebies ae *2pheade Ls o%o.
ue PERS es ebeers:
_ eHolebiles eds te ents asta oreted Lert fs oe
. shy speed sy oe:
on, Pas gatved sea ae dog itzen oan Gas walboy, edd Yo - =
Gragits a teva st guilieqerg ai be Lorémee isqetq teb
$263 Sue .bseqe Ye atex eviannexs on ta. sntndn twos &
Ad, Se name, staninerg sit sew 472g oid me aemeR
2e aamenes Sm .aalrutat gaiiluses atviddmiatg ‘bee sole
seeauoniin tad a'inshaetas Te ysomidsed, ;
widhes sev day weliey odd to sexta on peers cane isnons 9
| ai een semeglipes Jens isiieds ome begtads os pamegiigan *
eto geetuyget o'Yiiistelq Sus mpieliloa silt Yo sasine odemtans
gRG@id ot .amdereded a2 scue0 add 20% som bao grat od
gee eBion ak 2 ¢afS 205 «idl 889 leet ox sddel A Aine
acligss: 82 agisersenk qresqueme « vet melden = geqe gates
She qe esiva dae osm eumeblve ex? Ie sonatesnegomy add.
gun due soiten Ye segse ads STSe OF gtbemhs Uxtad ysasbn
etic suantiv ono te veemiases of? ot Yom wektaratonh lag
-fomge te: weeuenike yaeed od Sedo nexdaes qhveotie e¢ can edi
shelnes sé dems moléom odd ilise. pystitdsbers sadas
phew af seisowizent Tetum co% matcom.s wastes ae |
-5-
to sustain such a verdict (fer plaintiff), bet tant such a ver~
dict, if returned, must be set aside beewmse agains. the manifest
weight of all the evidence, then the motion should te demied. * *
to hele otherwise is to deny to pisimtiff the right ef trial by
jury." (See, siso, Shannon vy. Wightingale, 301 Ill. 168, 176.)
Amd we sre size of the epinien that the court erred,
at the close ef pleintifr’ts «vidence amd on defemdumt's motion,
im imstructing the jury to dieregerd the séiitionei coum: of the
@eclerstion, charging defendant with wiilful onc wenten negli-~-
@gemec. “ec think that piaintif?r's evidence tended te shew auch a
Pecklese disregard ef cansequenses ond of the acfety of others on
the street at the time, om the pert of the driver ef the yellew
Gab, as warranted the submicsion te the jury of the question
@hether he «ss guilty of willful and wanton negligence ss charged
in seid count. Im Falidrem Express So. ve Krug, 291 Ill. 492,
476, it is said: “vhether the negligent conduct of a defendant
which hae resulted in injury te another amounted te «antonness is
a question of fact te be determined by the jury, if there is any
idence im the record fairly tending to shew euch a grees want
Of sare as indicates « siliful disregard of conssquences or a
Willingness to inflict injury. * * am intentions] disregard of
1 KkBown cuty meeeszary to the enfety of the person or property
: “Smother and an entire sbsemee of care fer the life, person or
: of others, such ac exhibits a conscious indifference to
9 make a Gass Of censtructive or legal villfulness
a@ charges the person whose duty it was to exercise care “with
Gonsequemess of a willful injury." (See, alzo teomn a tihieate
‘SEEBNAL COs, S19 Ill. 326, 3503 Jomen v. Kramer, 235 Ill. «ppe
$62, 368.)
= Vor the reasons indicated the elinen of the Guperior
‘% agsinst plaintiff for eests is reversed and the cause is
REVERSED AND REMANDED.
and Bernes, JJ., concur,
~tay a Mowe Jedd 2od + ( Ftbentaty 26x) dohbrey & dows mieten |
i RES SE OSS GE
testinax sid Sankage cemeoed bisa gen od J ease sboaraget th .to
‘ 3 Suh, a az. % tind
belek o¢ Ghaeds solian end sacts reonvbive oda ifs 0 §
q@ dwius oe ttigit ocd Yes — ‘ga onl ee ak satwradze. id .
C.a0k (ook 459 BS yeheuwtds ors 90a) "0
eheexs sque ad? faite ‘ities "die ts dks Sus 'ed"eak oe
eS See er Oa
steldou a*farkestS> ae tae ‘goa aive ‘e ilsalade | te » ead |
gs sect Xan td “Uo Ree ep
ad to wos fangtyfon. sey bucpoveth oc gust, eds i
aks Ses iustie a
=tizak meshes ona iSTELEW dis ‘Suohasto® watgtaiie «mens é
« done wes of Sued seman tye efvthemtaig Ps is a
» Hagscn Sam
we exaiite i Sfstes ed se tee seomoupeauss bed beapeten
4 + ~ % %
geisiawy aif te yout ate oF io bwé erie on") pet sobs Gi)
aeyycHd 26 somegkigns wocaue hae Lshennidlind ‘Gitlin
(2% Te Ce6ewpeawec to avegets fh fetifie & 283 |
Ye puagiaaks Lensbsesdek ak “+6: seine velitvat ob deempatil
“Wtsgewg Te Roc wy ods te yseter eal? oF x eee ee
Kessivtifte Inget 10 oeiiowséémps te cice © olee .nommeH
Ad ke! asito outa @ sew Se sate mag a
‘Snares «webct cme Oe
xelzoga ed? Ye _Ssompiut odd bedeoziat amoanex sd 2
el saves add bum Soarswen ah- |
“ is GEYER Beers SD eho a
emusme9 +00 connate
” - 31196
To STOLOSSKI,
)
ainent), )
Appelles, }
v: | APPEAL FROM SUPERIOR
PH WIERZBOTSEI et Ble, VOURT, GOOK couUNTY,
| endunte),
of JOSEPH WIshuZBOV SKI
ane EES WIERZBOWSKI, Oe a) o
Appelianta, ag 4 ee o> Or
‘MA, JUGTICE BARNES DELIVERED THES OPINION OF THE GOURT,.
This 18 @ bill to remove as eloude upon compleinant's
| tite te real estate known an 2036 Stave street, Chicago, an
instrument Culled a trust deed, er a trust deed note, executed
y Gefencants Jan and Katie Caaplewski te defendent Joneph
Viersbowski, & jucgment by confession entered thereon by said
“Mermbowaki, an an affidavit b» him filed ef record Sleiming an
- Squitable interest in enid premises, and a juégment by confeseion
abtnined by defendent Martin “ierzbowski.
/ From a decree for complainant the two "Lerzbowskis
have appealed. A decree REO confesses was entered againet the
Sher defendants Jan and Katie Caaplewski and Dennis J, gan»
ff of the Municipal court of Chicago.
December 21, 1922, ¢omplainant entered into a vritten
t of exchange with the Cuaplewskis through defendant
Wierzboweki, # real estate broker, to convey to the
Kis the premises known as 2338 Morth Seeley avenue,
ABO» subject to a mortgage for $800, in exchange for which
, Stapnevante were to convey to compliinant the aforesaid
known as 2056 Stave street, subject to three mortgages
t
i
i
Fe
i
SE RR ie eT aad aU A Ee NR ee a BN ad lan agit
iis
RDS ERIN AT RRA RG CTR SER ARO ORT? AME EAA RRR RRR SR RRO Sr a te
“s y 4 : f Veet B ‘if
Py sisi) gS ai il maokhee ‘aca EMD a
Ns OMe REN th ley t Ee Oe 2 IY, on we oid nein eo 9
» * Lat, BHA. te VE Lae CUR’, “ag? ete a 2 eh ekxeeOsore
p av imenic) mir "
, Lo cngmaadoggate S508 Mee
Ome oe a) in Spe Page fs a¥
hes 6 hee UEogeaatw Hane
iss Be : ee
ilgili Sind Ma Naina)
ROAROT te
v ee. Aiebhel [pS : CM) Dake Ault CP | oe Sd atine ve se
sPHwOO ARTO KOTKIO. ae aMeRVEM, au
BN CN i a Me TRG en ae “arco cr
aa aogu atuess as ovanon 92 11d a af eda? ney
RR BREED SCG SSSI SIN” NRE Es ed “) aid
beeuaexe, 900 boos aaares a Bind zat! .
a % his ah y
a wb eo
ANd
“fm sigan bs90e% 2e neha ‘ m —
i Oa Me goa, we x Hye 8 aot ays
Ae poy os St ‘
aopay tron ne eae ad |
NEP ayy 1, ea Mogens
ae
aggregating $3600. In the exchange the Czaplewekis were alse
te give complainant a second mortgage for (1000 on the Seeley
avenue property. ach of the parties wan to pay Joeph
Wierzbowski brokerage fees and comnlesions.
At the time of executing the contract for auch @x~
Ghange the title to the Stave street property stood in one
Tabor, who wus to convey the some to the Cauaplewskie. The
titles were brought down and the porties met on February 6,
“3925, to close the desl. It appeare that Tabor would not cone
vey to the Canplewakis without an adjustment of the encumbrances
On the Stave street property, and a cash advangement, and thet
te obtein the conveyance Joneph “iersbowaki had effected
‘Regotiations in the meantime whereby the prior encumbrances
were to be replaced by « mortgage of $2500, and by 4 eagh
‘payment OF $1049.75, and an amount te cover @xpenser incidental
‘te the deal, The mortgsge for $2500 had been placed of record,
and the Czaplewskis not having the eash for such purposes it
was advanced by Joseph Vierabowski, and it was understood that
“s security therefor they were to give him a mortgage on the
avenue property when the exchange wan effected. To thet
ene the attorney for the Cunmplewskis on thet oeension prepared
& mortgage, and ot the same time a deed of the Sealey
property to the Caaplewekia.
There was some evidence that these arrangements with
were mad¢ at the request and fer the benefit of both
to the contract of exchange, and it is upon such a
that Joseph “ierzbowski sought later to charge the
iad ee of both parties with a lien fer such advencenent,.
t there is mo evidence tending te show any asaumption of
“
onls acow. wiiowalyasd ait epmedoxe ond mt .00neg onteuporss
yale’ edt wo COOLY 201 ogegerom haoose 2 Saasttatquas vk e
Aqeael yoy of gaw eoldusy eft Yo Mond chor ae
4S
hs
eeneaie
ramoineluusoy Dew ao0% sgstovere biowedael
_ tae Mowe xe towtdaoe oft pmbtuoaxs Yo ald ous th wine
hao ah hooes ‘Wrocm seotda ovnds od oF aLOhe oat wgdns
est .snidavalyasd eats of eman ofd Yovnon ot nw ‘tale erode
ef Ytamveiot geo to, beksnng etd brew mead , e ie word ‘daa’ aatel
ooo Jom bien xodeT snetd ‘wuseqqe ¢1°° ekabh ont unto ot 850
Beene timwons pid Xo sMomdewbhe ao suodstw ebiowalgas?,odt ot Ye
dans bem «tnemeonovin dase o bam ,yereqeng sotto ovete ond be
pedwetas bia Relewadeuel? Kgendt sonmevece Leal atatdo 08
anomercdmnons whe add ydecede omtdnaom’ ood Wk aserte toys
hein M4 Bed 008d Yo dyagdien ays beoatyed F “ot wt
od? me ognyeres a mid yin of oxow a ilk’ ‘Voud
dacth' ot shodootté aaw ogmodoxd bit} node: veregeny ‘eum
porngery Keke ceee tans ao attowolgest ad? aed yodtodds
he ‘qosuon’ ‘asl? te bewh’ 4’ ound” “mtn a Pr he baa ¢ ons
” “redsowelqasd edd is
‘Moto stuemegherce deeds Sodd Goadbive smde aoe a Pian
died Yo sPened odd to? bas sesnpds ind "0S ail i
a dows oq ot 42 ban’ ‘less te ‘betetais horse cot ”
gio ogencte 93 Sedat Udgude Mvdudcaunt dqowet dadd Quod
“\dnsawonivhe Adin tot moins tte want isd
gg" iatrentlat wai Pho 02 yrthaes vonebiv pherlicn
(
| fad I ta MT Lea ak dT me i apangaae noe
|
a3-
liability by complainant for what wae necessary te be dene te
@mable the Czaplewakis to get title to the property they were
to exchenge. It seems tes eleur for neguaens that the arrange~
mente with Tabor were solely to enable the Gusplewskia te
Obtain title so that they sould Surry Out theiy part of the eon-
tract, and that therefore they alone vere obligated fer the
Cosh advanced and the expences incurred in such ALTAR ements »
It was omly through such arrangements the Csaplewakis obtained
title to the property ond were put in a position te carry out
their sontract, which a court subsequently held should be,
Oma was enforced. Through the gash eo advanced they were alae
Pelieved of the requirement in the contract of exchange to give
Complainant « second mortgage for 1000 on the oeeley svenue
Property. That os 6 result of such advancement of gach the
Graplewskis alone incurred the indebtedness to Joseph ‘ierabowski,
Qnd thet it «ae so understecd betwoon them, clearly appears from
hie own affidavit filed ef record February 23, 1923, (mere fully
Feferred to hereinafter) and from his furnishing a statement to
Jan Caaplewski four days later charging him with the amount so
‘Sévaneed, and also from the fact that he took from the Caaplewskis
@ mortgage te seeure it. hile that mortgage wae finely, after
refused of the Canplewekie to concumate the deal, placed
the Stave etreet preperty to which they still held title,
ieee pureuant to the URderatending between them the
3 ds* attorney had prepared a mortgage, az before stated,
to cover, net the Stave street property, but the Seeley avenue
‘pre in expectation of the exchange. At the same time,
' 6 1925, the respective deeds to effect the exchange
ee executed and delivered in ascrew to the respective attorneys
| t
i | |
ie !
' -
| ot Sth af od Yuoaweo am ow masber aah Puiielquos yd Yelisde
| orey Youd Yoaeyeny od at Odie Joy O0 abtawelgard, ond ehda
SOgerte oad Sore Joommyia Tet aeelo ood emaee JL, ew RGRORe
: | ed chtaweqand. add: sddame 6b Kiatos omy -tedal sadw: ade
“noo wa? he Fee tied suo Cri Dives yo dads om esthe whad
ot 10% hodeg ido omer omoke, youd, wTehoreds,, ands ae toe
Latetommenrke Howe Bh POOR, esaReGRO ods bas, Soonavae tip
homtodde shimveie cal elt ataomgnatxe dose aywords qlae saw
ha ase YTUND OF ABLItnog a mh Jug oxo lu YoTEMOTE os OF Oks,
& sat Bivesto Led YLsieupoatvn Ines a Hobie _doeidnoo ake
me
cain eRow Yb HeoAvhe oF Hane ods MgwOnd ebopwetan ane &
ovis od wyiedioxe 19 toaxsmos wis mk Suomesiuere dd 20. ewes
ames yotoat at me COOLG cet oyeyisom braver 6 Sphasts Road
oat duov TO sHomnsKeNbA dome Yo dues 2 am dot wo qereme
2 Atwwodtaraat dgesou oo ageisetdsles oss boxawomd amete abl wou :
Mott strange YtwoLe yuodd asendod hootetatay. on toy ah test &
VLE ovoRt) VGELL .€2 Yrowrdot dros to HOLLY dhvAdee a0 8
iat oe tremeiats 2 gabse bere? wld mowk me (wae Ramtesen, ad erre?
& aa Siarena edd iho mth yokgcele vetel wyed, we? dalawelgand &
| aikwwerque? ole mort dost od Head toxk aut OK’ ake Dek 9h
: 29d een tort: uae ogegirem gant? ofht? 402 ereece.08 0 Be ION
Aeonlg ,iach aad edenmenmen of wtiawolquad ecicuiiaal hon.
1OKI2S Akon iLtde yeas dokaw os ytzeqerg toonte vests, ‘a
a .? i Pr) Hewedod gabbnedosodens, od ot (RaMaueE. Leds % :
rhucote CkOInd am «OQaghiem & deiagong hak yomnod ss, twtwaw ta
onnerd Ylaoh obs Jud eYisogerg soomtda, ovate ast som «uHve ,
Sak? omen Old Bh semMcstane ges XO mphsstoogRD th
ogrndone wt? dnote, 93) wheod avtooogeon aad, aHORk 48) CHeME
i ayerxetga eriioagnet a 08 wox999 mL boxwyhSob. bas petwoene :
«he
of the parties to be eld until the Casplewskis presented »
deed from Tabor and secured releases of the replaced mortgages,
But at an adjourned meeting on the following day the Caaplewekia
refused to consummate the deal and direeted the ¢serew holder
mot to deliver their deed te Complainant. Thereupon on May 18,
1923, appellee filed » bill against the Canplewekis for apecific
performance of the gontreet of exchenge, and pursuant te a
Geeree in her favor entered November 9, L923, deeds effecting
the exchange of the properties were executed, and she become
Peeseased of the ‘tave street property, but with hey title
elouded by the documents aforesaid Placed ef recerd in the
‘meantime.
if After the Czaplewskis refused to consummate the con+
Pract for exchange Sovepn Viercvowekt filed of recerd ¥ebruaxy
23, 1923, hie affidavit aferesnid stating that the ouettns te
the contract for said exchange of real estate, describing both
Properties, Were brought together by him and thet ae the legal
titre to the Stave street property woz in Taber and the Czeplowskis
‘hea mo moncy to pay him the balanee due on his agreement for a
werran
Y ty deed to them, and pay the first end second encumbrances
| on the same, he, Joseph Yiersbowski, secured a loan of $2500 on
the Feal estate and advaneed the moneys aforesaid to said Tebor
° secure & warrenty deed from him to the Caaplewskio, that they
" to consummate the deal, and, therefore, he claimed an
interest im the “nforessid reul estate,” apparently
to both properties. Au before atated this affidowit
States that he made the advancement of cash for the
8, and is inconsistent with his assertion of a Claim
t's liability therefor, Later, Merch 22,5 1923,
‘Mise placed of record ssid trust deed embodying a
“i
a badndnntg dtdawdiqhnd bad eeone neal wal Ge Wo kee ale
oar yng dbus nasatgex ‘ond ‘te’ ‘peidator' ‘ye we ae Rime ‘ode? moat bit
elstvwekqau® tid yb ‘yalvelle? ont sé gett oud Beotwo ted AW Va eh
shied werysd add hadoorih bao tuoi edd sdeumvdads 69 Soule
10k oil md moqulotad® sRaanintdmos di bib ehhay’ ‘tothe ora
otnisegs 102 eblabetgen ‘pitt Jonkaga ‘tgtd’@ botke’ wol.te ct
a 6a smerny hne ,ogaeroxe “to Jonxdaes itd wae ine
“uate vite ‘abooh acer (@ toumowol ‘peredaw SO¥e
‘pmoped ode ‘pats’, bedsooss exe0 cathe A eyitasio
ons ‘ait diiw dud ewireneng doorda vt
odd af | pueoes te Laeead Beoriota nénoaue ee
eR i P adits ara ee a ait) i 34
Pi iewewer id x ‘ BH. as SE Saal he) in NRE AR ae ae
*
} eaairacet proven te bektt ixiide deal’ ‘Heeaet
“oe saben ‘odd Qaad gabdode Bsooaote “gb wab rane
“daod “yal@ixvas & vosstad ‘gay % ognatoss bhai’ xe?” thie Sib
| mt bent ta tad sae at e bento stgubie 60 sy
mod? het od aidoeneta weiton’ oad h sul +) aa vant
Guels sods qhhatwtbtgel ano) mit moet boew’ Wabiaie |
na boakake oa Gendteond een ee a wit wi ele
tora “yesbdio Las merece oitd all Viwabaack anv
srvabinta. itd hedade sig od ah’ Vel ehisocent a bund Bosses f
outs “or sno 19 “tgaronevbs ivi ane si
mtals | a od motsoaun oka ihe aaa hi
“ wil ‘Vibra " iene
a wakybodar bead tawtd Dien bones to beoala
-5-
trust note for $1750, signed by the Ceaplewskia, purporting
to convey to Aim the Stave street property in trust to secure
the amount of «sid advancement. Gn anid nete he took judgment
in the Municipal court agsinet the Caaplewakie by confession
July 2, 1923. An execution issued thereon July 5, 1923, wap
Feturned “No preperty found" November 4, 1923. Under on aliag
execution issued December 27, 1925 (after entry of the decree
Of specific performance and complainant had entered inte the
possession of the Stave street property) « levy “a9 made under
@aid alias execution on both the ‘tave street emd Seeley avenue
Properties by the bailiff of the Municipal court and e certificate
of sale of both properties was iveucd out Of said court to aadd
Joveph Viersbowski for the cum of $1926.08, the amount of anid
Judgment with interest. 7
The theary of the relies granted by the decree appealed
from Femoving the several documents of record aforensid as elouds
on Complainant's title te the Jtave street property obtained
through said deoree for specific performance, is predicated upon
‘the conceded fact that im precuring the contract for the exchange
pate properties and arranging for its consummation, Joseph
Ski was a broker and agent for complainant, ue well as the
8 and on the unquestioned principle of law that as such
% he could acquire no right or interest in the property
1 istic e prejudicial te complainant as his principal.
on Agency, Che 2, Yar. 455, p+ 3005 Cotton v. Holliday,
* 176, 1795 Davie v. Hamlin, 108 111. 395 Froehlich y.
SG, 180 Ills 85, 94; Comant ve Aiseborough, 159 Ill. 3833
-Olshour, 155 Ill. 300, 337.)
That the title te corpleinant's property was thus
palaroqimy yatalanalaan’ anid yt hoagie .08TLS 10% o¢om tauert
_ Seee CF saared nd yrxouetg sootda syed’ welt athe OS YAO, oe
| , tnmmgbsr, Hoes ox egam bites m0 stromestayns oben te souons od
| mohang ies Ye aliqweigax® sas fanage 2208 Log ho beni fier at
ame g E00 96 Ea noenedt Henmel HALUCOAR aA A BROL 9 ve
| anki me ‘ronad ESOL oh sadn vet, * pamiak@ Ys sOmOTT, mar lial
ooo oft te eine wedta) 80h 40S todemoes bewand, nonswonae
aula odmk beredne bad danminigaoe Pt, BORMETOTING pitas
tabu obo, aoe ured (germqora toasde ovate off te poxanowone
aunovs osont ines soamde ornds weld, Ado Ho notsupone vette oe
edoortisi9o a baw saren oq to deat one ‘te reeked | oat 18 apa!
bhew oF gues blew ‘to au9 pawent Rw pecounentteny up “3 Lae
bios to smuvene actt bocce a: et hdl
aah
' abuots, ad » Abanor0%e brepes 30. atsoauss0> Pies co eae
ie _ Beptasde yo tag ORE, seoxso ovat oats 8 atane ot dman tela
= coor
woes pedunkborg ss a PSTAE OE OR, | 93%. :
sariaciune 9d teh duatenes wats srehsunerg th
gone’, «Hoke amnuanipo adh co% ohare iy
ond 8a kow as siaonislemee ” 0% snoge Dhe TAs ala
ton as take wok te sigiogtag, hemake un oey acid, no baa ebdew 4 :
qixeqamy, ond mk dugnotat 20 digas Ot ortupes Bisoo, a 3
_ steadontse ald os smamiatgnme at fake touhon9 “ap obte tanga
IB, NOE, 909A, oa of ott pon ne
ces
hw,
‘aaa aa prac s ae w erie
se, HERR gyi UR, RNs weninitrn Wah. Sits mln, ent
MENS NUTS
-6-
Clouded in the interest of ome who was her agent te effect such
exchange, and that the direct result of the instruments spread
of record constituting such clouds was to imerease without her
consent the encumbrances on the “tave street property beyond what
she was to assume, are manifest from the facts atated and as
found by the court. That Joseph ‘derebewski could not obtain any
advantage therefrom to the detriment of his principal, he heving
full notice of her righta under the contract of exchange, which
in fuct he, in the exercise of such agency, had negetinted for
her, is well extsablished by the authorities abeve cited.
Martin Vierabowaki was a brother and partner of Joueph
at the time of these transactions, and o« auehy had an interest
in the brokerage fees and commissions to be earned through theme
Vite full knowledge of the contract for such exchange he afters
Beste, im July, 1923, secured ao judgment by confession on a |
Judgment note given to him by Jan Caaplewaki for $175 and costs,
om had « transcript thersof filed for resord against the Stave
street property. Under thie «tate of facts the same principle
“maton would prevent Joseph Yierzbowski from acquiring interests
antagontetie and prejudicial to complainant applies equally
‘to the claim of Martin iersbowski, and, therefore, the decree
rly provides for the removal of his judgment as a cloud
SR complainant's tite.
3 As most of the facts above stated are uncontreverted
are sufficiently eateblished by the evidence we deem it
eesery to discuss the contention that complainant did not
her case by the greater weight of the evidence.
Equally untemable sre the contentions that Joseph
& valid interest in the Stave street property by his
&
done segnte aa toys ton enw I uel any te bnoregat eat) at boda
FV Wass
browge “etmamurs9 mt, outs 0 ‘ago, goon old dust? baw
2 a RN OR 7
nit amons bw oanoromt oF ann “sbuo fo owe galing tienen breoot
, EOE Tras sgh ney Rn %
pocroniphy ois fear
Medi ke
deste buoyed witeqorg snort evadi ons 0 mennee
any ay tee eal gee!
a8 brs betes aden? sald mot faetinen ous 4 ONAas oo Bew
Bites BREE 4h. CR ORI we ew eR RES gO
al atedso on efee Atawodazel genet sastt otm0D. odd yd be
a's. Ge OR Be
aatvast ‘ot sKaqhont re ald te srivmls90b eat 0 mortotedd ogsdno
hare: eaeee & Ee
doide cognition te toctnoo itd ‘bata afdgee cod te option &
> era Boni
od begottouem nad eonene dows to suieroxe ode mk 6a
eet make to ne Laem:
sbotke eveda ‘eottinudsus ests w podiebidatss iiew
W ve ie ee Lee st of t
rigovot te word i9g bas "gedtosé 8 asm tdnwodaxes W aisce”
, Pa hE ak Ee a Na
teosant as buat cifouse ao be vonok@onemaes 98 ode Yo omtd
Cn a a Si eres Pa: Se Bs
stars sywornds hesiae * 08 omekoatawee baa aoe? dil
ea Se.
NAD es
duedte oat anedinns tre “ot tonzéneo edd to ogbol wont womk Liat a
o Re eer es
en. a0 Hokies tee a dt avnamp best, Le dorugee ‘ane Br Nat at ey
_aads00 ba “arse 20% “tigwas.gsad as |
ete NS Pan Te ott, a
we _ ethtaees
ovat? ods sonbans prose, 702 Pas Xeosedt ‘ee % An ce
Rise *
_sigtontsy one oat toot we atatn ‘ae ope *
Srey is: Rb Bee
“ateoxosat atlayoe nor? ‘Mavederet” agen’ ¢ é ahhh, Aa
Lok ster
GM ie tek 1/9 BAN ER VBI IK
Eko wokiaas son batqnoe at {ole kow tq fae O23)
. , Oe Ce ee et i Mh
voxoss ons ‘sore tortents one sbknwodere aka voll ‘te mialo ®
x Rea ame Be Da dota hoe tS Ree at ee ‘uti
“auso £0 r Be taomabet ahd ‘te fayous ods Ra Mag 7% YLte
Bh a J AW RN RU | ORS, Rebs a, Saalbach o ~ ‘
Bight t vie Rabe AR
ay ve 4 yas peti aire aye Be a ag be
besreverenocsi one Pay iy oveds agpot ond to.
LEENA MAACO DRE Se hp yee
he
a aed ow eomsbhvo eds ye bedetidesss \iltne
wip yan ‘ ROR y RGA adits alin
“gon bb smamtofquen todd ‘nozenndn0n ents pare
DR Me asa th BR aM auih es ii er ae AES, 4 ‘i m
seousntvo ails 30 sinter spdaunp of Us, ng, a
yma y perry ‘ene bao m0 ont om elcome tas
‘y ee pe "N waa oe KG
abd eaeemenene: Prank ape
aFo
advances of purchase money, and that he violated no fiduciary
duty in securing a lien om the came therefor, and later a
bailiff's deed upon the eortifiesate of sale. It is enough
to aay that these contentions ignore the suin fact of the
relation ef principal and ogent between compleinant and eaid
Joseph, and the principle of low pertaining to the same,
heretofore referred te.
Appellant oleae mikes the poimt that a vendec who
secures title by specifie performance oom segure no better
title than his vendor hae at the time performance is deoreud.
It must be manifest that the point hae no application to the
ievues in this case as above stated and discussed.
It is further urged that the evidence disclesea that
dy a balancing of accounts compl inant would etill ewe $1200
to the Casplewskis on the exchange, and that relief cannet be
given complainant under her bill without an offer to pay the
Same. That was a matior that might have been raised and was
presumably adjusted in the suit for epecific performances
The point is siso made that complainant never paid
the Comuissiona to Joweph “Lerabowski agreed upon in the caon-
troet of exchange. ‘The record discloses that that matter has
‘deen adjudged in another suit und judgment in a lower court.
i It is alee urged that the court orred in refusing
Joseph Viersbowski's offer to file » crows bill for affirmative
| 7h The offered cross bill is predicated almost entirely
the uncontroverted facts above stated and slleged in the
» @xcept the main fact as to the relvtionship of agency
ba
*
des wee LR Reeeante
vrekombt’s oa wedabedy vst Saks baa stoma, eastonug ‘te sin
lane sett MO 9 AMER
(6 total ban eto roedd man ors we woh 2 gatiuose nk %
A yaeauteg: ¢ Reet
stawons ab va +aLoo 10 eeont here oats neue booed wITRhs,
Retin aaa Gua ee
+ oats te deo Kine at eros. ‘ui 28 00 S008 onsds tad wa
Ny Ay AN RSI Re: MR A
Mas bess vmeetstgmes Browsed smone oe yy ‘te gp
Yau ie CPKay ale % Sie
some veld ‘ee s pmtatorceg wed * ‘eqtontea ode ods hee qtige:
Lod soe ipneehe | ae
sot pernetoz SkOTOS &
:hAnen ted te O°RPOM A
‘eit sabmew a dealt imiog aii eden ose smalleqgs hie
ioe oy a ate weed
xostad on sTEDOm Co somerset ot ttvegs we eLoks een
(we tow Ste ee:
oduataeh ‘ad oomamre reg ‘amd es te eed ‘soomey ist mail ol
: cod ot ao bevohdeas om ead ante walt: dass “teothanm ‘ot dams
\onebonth ban bbdede ovoda ea get ahd? ak 2
Priaol ‘podetoakb odsebive off" dand hopes ‘teddeu, abs ate
‘o0L¥ oe XLEI6 Bikow daanl Lqmoo sdaueooa! 36 3 Hinkkad 5
od sGiiead “AREY gaits hath” bgmitoxe bad he’ wl
is Yaq Ot chtie AN duds iw Lee wom hel "bid |
“how bina’ NOkEMY bed dead sdlgiher “anils PEPE Wee nig Oe San,
engunetyied baieage baie daveb ota Seely Saeed we
gukestos at dovte games old dadd boytt cota ieee
ovtdamikyt0 YoY Lfke aor « aftr 6d othe eblewesaon® ago
eotkdae Beata Peddotietg: wh EEd seato boxe !
eels mt oogolte are Dedede veda dies sediover |
yomogs “te Ys L Let oft wt oa tect whe Wi “eel 9
ao keariswos ity Baa (odor ‘Eka vill Adib ay ” lavoro
ysuegery sSasnde vag’ edd mo 0kL DdBev io tend wats
Ge
for the purchase money advanced by him to the Ceaplewakis te
obtain the deed thereof . Whether he had euch a lien was the
main issue raised by the bill. If it had been determined in
faver of appellant Joseph ‘ierabewaki, it fellows the bili
would have been dismissed, and that he would be free to assert
his claim én the Stave street property and thue obtain all the
relief to which he would be entitled. The offer wae properly
refused. In fuct, it appears from the record shat before the
Slose of the hearing he Cbteined a bailiff's deed om sud sere
tificate., Al) the rights he alaimed under the éocuments sought
to be removed by the bill as Clouds on complainant's title having
thus become merged in said ceed the deeree not only removed thea
60 far a8 clouds upon complainant!» title, but decleres said
deed te o@ mull ond void and « cloud as te Complsinant and
@irecte thet Joseph ‘Lerecboweks execute his quit-olaim deed of
the Stave etreet property to Complaineate Hoe point ie mde here
that the deeree in Feepeet to endd dead rests upon a fact ariging
after the issues were formed, appellants evidently having waived
the formality of o wUpplements2 vill setiing up thee fact, and
“Ry error in procedure in that reepect.
The decree, therefore, is affirmed.
APFIRMEG.
Gidley, Pe dey, and Piteh, Js, eoneur.
She
*
e
od eksewotqan® ii 08 ahs yf Deonevoe yonom ounsior at
eines IR A RES Le Awa
wud naw moh # dowe beti oot xedzonW ~ » Gooreds head od mba
e SS, 2 RRA RO A
nk dentanoged mood bad 2 3E thts odd yw horteax evant #
h SS RAR Renae ey i POR
Lid ele owas tot sh , bhawodatob Miqoact tnaitoqge te “0
pce Mia AL 4 CaS Dis wou
dxogan i sont od biwow od $ould imme ybosetaekd aveg ovat Bh
iow ae Bahn Raa inte Bers
oats Lis aberde ead nae wreot tovrte ovat sald me miele
Beatty ots 44 ie
uleonnen enw a9x%0 oat boss htme biwow od dead ‘et ag
yt Derg ne werhene
ound arotod dost preset wut moxt eascage #2 yee at eBout
hea : oe ean
“100 bho m0 book attbLbed bomtetde od gatkrooe oft Yo 08
Te eS: ain ONE
al admeeuiool one xo bomtete ot c. als SEL
otnaee tad
gis weal exeas a‘ smantaLamec ne sbueto us ae) exit wt pevemet ye
sual ee i! Rie See bel .
mols heveaws ‘ine sou vetoed ode bosd Dios ak degra Ds
CR Aw aso abdt mk:
gi Pee, woxetonb aus seks he etenaniniguos mom shunke ap 4 '
ae eee eek: og Py
bate Seosdacquon oF aa buoso, i. bet blev inet ort
Peer anne a a.
te, ished ahalend buy ats otuvoxe Liaweds cod
KGa Gee RARE ar ie Wee be]
ened phase ab datog om -geaombedamoe 02 wereaent rie av
i te Bidar AOA «ON ea ig ath 7 7
anda kiss Joa & eapgss esaor boob khow we poranes fs ae
BN IN Roly cae a a a Ae 2 ik
bevdsw gukvad! dtmentye, ‘ amLLeaRs « eb | cree cou | Be yah
he. se Hoe % Bo ay i
iets atont vads ww wa.
Sd ber Lotmomoseawa a te wil
Si rey Ki te HaLoy ge
oqaers sads ak ones ‘as
per BE 9 A SR aaa Ea, Re Gente ee ut Meee Oe as
sos 12a iy sero lexedd s00709b Teen
eee ea: Daa MMe ES ak am oR yt Soap) ‘Ve $4
SR Me MC ST ANN aS tours a
aL OS Pe
Se OS ERE mam oC CMM RA eG M3 i gp ith wt akan
se ‘Stud ri ‘dosnt of tod
CAN ¢ Oe FEL NOL @ UL ee See ene eh wey
Pde i F j 4 ) | n Le ‘ } OP j it
PUA G ce B SL IN I I RE a doth gon toy ‘el se
te NR MRS ACARI by 1A MRAM RE Pe is Mee ii hi
d spaihga i dee WS Wie tees oe ont
vowing COWS Reitaiha PS Ra REY eae ARE al Ra ceil ‘penta’ a
(Ae Tira A dameay RRS! Gapaa! wana. ASE iat Bt ne Me ‘wwe bias:
“on aan tars: Pein lta aN A CURE AOGA BOER BERK OH ‘on ee ill
92 + 31220
JULIUS HELYER, )
Appelles,
APPR .L FROM CIRCUIT couURT,
QOOK COUNTY,
Ve
JOHM GENHARELLA and
BICOLIBA GEBARELLA,
Appellants.
vv fR
=
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’
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aAolhe WW eD
244
WMA, JUSTICE BARNES DELIVERED tHE OPINION OF THE COURT.
This ig bill to enforce a mevhanic’s lien. The
Property in question belonge te appellants, husband and
wife. For their benefit the husband signed « written
agreement with appellee by which appellee wae te do certain
Work on the premises for the sum of S470, The agreement
| Provided thet "Helfer agrees te raise the building * ® # 3
‘feet high on cedar posts, 6'6" ond furnish all material and
labor, aleo to put in the basement all around second-hand 2"
planke for the foundstion and the rest of 1" lumber, also to
Pepair eli four walls siding wherever it ie necessnry and
Tepnir the front fence, and put concrete coping long side
Of ome wall and sidewolke.”
The bill alleges that eOmpleinant completed the
work Called for in the contract, and that including the extras
agreed upon, there was due him $691.91, on which defendant
:
- hour be credited with a cash payment of $150, and the
additional mount of $154.94 for lumber furnished by the
: Hartman Lumber Company if paid by defendants to the latter.
Said lumber company wan permitted to file an
petition on the theory thet it furnished such
to defendents, and the moter found that it was
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a:
f
bt
o..
Agios, 4 rede 7 di a Hip bai ey iy 2 ie Ne ois am) siaee 9 > aa ss fi .
“ ‘d 7 ‘ ‘ ge “eas j "3 “ae
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edd LL0qy. A mn :
Ch ty 1 Pee RR ae a “ye
eTRUOD: PIVOTS MOA: Beka dy nid ct? x
ii ih a
whe ama oye oh
5 aie NO: OO: tesa: al, Banh SG RNR RAEN
pr
aie “tad
eg 8. eeee ees
__ aon SAT TO 0 THLS0., wat CRON LL, asta so ETEUE
wD a id
POS SAL ie igh Pei
SO gee” Se Ee *sineioon a oozatae ot aad al
i Wis iS hold it eR Wits WAS} Pete ty) 2
“ha baadaun eadrailogce ‘of ‘apnotoe toléceup. aa qs108@
WAN CaN a eae AS oe
wh I Oe omits “pandaunt ext “$8tonwd uisds tol 98
Mie) aoneriotish a
niadten ob of aes ‘eoiloqga do kster “6 oolingga seke —
‘ dingt ad «de ari Ae
“dmoasorpe eat “.OVbH to muo ant vor condmong oat me 2
aN as i ales Meh ae
og y, oe ‘pattie ods ‘outer ot nooags wetian® sass
f ie cote: Dee
" ton Laktebinn ‘tte p/aflihsl ty haw ory lateee| wave mo seit 9
aay ae Ae Sg Nah RR
| vis pani-taoooe inwoia ite tnecinece bas ah tam of ate ot
a 4 Rh CRED we. 8
: DERE
ot oaks enedeit lied se teen me so moky shave ot sot wats
ee SRE wb ee
ees ‘yinaanoon ‘at a ‘poverode pai ellew iia
v er ee tee
obte gaol) anges ed szanoe 8 bo, bes “90m. Sent one ahs
z sit ansige tly h Ba RE
ae Be ma ee:
aald badelgmes greabaryace sas wogetia LLid ed?
catine nso pmblintont sald ‘bas gtoosdaog ond at 10? vattan
gaobweted dotde ae okeoseng audhed enh samt weet nee nnoan be
edt baw .0OLe bo dameyog dono « tiv bodthore od bf
ode yt bedtekavert todul rot ae. mee te Sovarete Lanes’
+ ted gol oad O2 simabas tod ye. bag, ae wage ‘wedeest mae
‘no oft! of herthotog uw cmquoy rode Bad
fowa bosetamw? 22 tome qromds odd mo woke htog gmhaows
gow ah onde sae male oa Sew catesioneten: 2
a
SS re
i
iA
es
entitled te a lien on the premises for that amount. But it
Appearing from the evidence that aaid company furniahed and
delivered the lumber not to defendants but te complainant on
his order, ané that dt did not comply with the statute giving
& lion to a subcomtractor, and therefore it Was material
furnished by complainant under his contract, the dsaree properly
ineluded the cost thereof in the amount for whieh he was entitied
ane given a lien.
Ruch iumaterial evidenee was received by the master,
Much of it reluting to the parties’ understonding and inter.
‘pretation of the written contract. fresumbly it was, and
should be, disregarded.
The exceptions to the master's report were overruled
amé it wae confirmed in «ill respecte except ae te the Timding
that the lumber company was entitled to a lien.
The other overruled exceptions on whieh error is
Sesigned were te the effect that the mster's report wag
sontrary to the evidence and not in accordance with the con-
tract in thet complainant di@ not complete the seme ahd defend-
“ante had to hire one Catanelle to complete it at an extra
fon of $100, ond that the master faileé te credit defendants
expenses incurred for Plumbing and restoring 4 cement
“ stdewaix, and that complainant was improperly given eredit
fee Certain strips put on the Outside of the building.
We have carefully examined the evidence and while
of their evidence indefinite and unentisfactory, yet
@ it the mont favorable interpretation we are not prepsroed
f
Baie,
Nea
~&
oh sat — gods sot wesimong odd mo melt a ce hokazas
bun bode iwc? qaageeo 8a id nemnneyy: ants ox yalzassa
ae dmanio (quod ot Sued s2uadao eb as tom coded ants To
aaiv in aguente oda se dw yqwoe fou bth ry deed bem r0b10 a
Pe ae pe a BY aay ‘yt
Lal-ne dacs aur oh exe tovestt ynas avewtimeodua @ od wobt
_ eixoqong prey wale ptonrenee aid wo hens Jusacatguos ud owlaterns
bois ks mo eam oat. dete: ‘46% Nerewe ets wh Yooreds Pens eve ‘pebwats
nye geese. s wovts ‘oe
Cee gee He
adie oad we bevtovst aaw ome says fatxosama dou
S bathe. weal ahcout
potas ‘baw geubaed exobaar tanksxeq oa: os pateates ok Ye Hrs
Re RT UN A a MP NT). ye ae
fae naw ak videausovt .donname> mga hew ay fm v4
1 aat ig th it " Poy i Mi
*
oa wok Pests ta #9 b yee ie ba
pokerneve | oxew od atastena ode oe no oqnons out pees
gait ont oe aa aqooxe adveqnon ‘tte mt owt! tH00 ou ak
S gedeug Mae ke ae on
“snk at els sone anv yaguoo todaul odd ad? ta
and tis
| 7 ort ose no anolsqesxe bokuat9ve santo oat
: DEAR TY! ' ad
ew sroqes otzegncm ost sista suerte ‘esta ot ovewW cs pg ap he
i sf a
“08 ng se be souniroses a tox be vonobive ods of gt |
Saree Ae "bel
WES. | ops OR ata A) MP
ohneteb ade Sone a ond edeigques son or om o dada fag
1 ae BE MRO shame
euixe ma da a atoiquon oF ettonass ‘om oud 8 back a
_admanaered aboxo dal bedto® ‘seteem., ene tat shariinas g
, pela : sal pat wpaurytye ,
80%. etecniee aac i a
SereTOT fom HO, 9y MORRAEOT nom.ons a2 gah
o3-
to way that the court's findings were against the weight of
the evidence,
As to the item of $100: The contract requires
complainant "to put im the basement all around second-hand
" planks for the foundation.” From the evidence it appears
that they were to be placed on top ef the posts, and were not
80 placed by complainant. It ahows, too, that the poste rested
Om the bare soil. Claiming that the contract in theae respects
Was net completed, appeliants hired one Catamolle te put o
foundation of conerete under the powta, and pisce the planks
where complainant *was supposed ‘to put them but did net.” For
such work and other werk mot ineludeé in the contract, but
Secumec to be by defendants, Satanello ae paid o lump sum
of $100. if completion of the contract required placing some
_ kind of « foundation beneath the posts and placing sueh planks
, on top of the posts or otherwise than placed by complainant,
yet in the abeence of proof of the reasonable cost of that
part of the work for which complainant eould be held liable
“the court could not give defendants eredit for $100, or any
rT te part thereot.
The credite claimed for Blumbing work did not come
the provisions of the contract. the court, however,
i something for the new coment sidewalk and preewmbly
that reason charged defendants with only two-thirds of the
» which amount to $157.50. Testimony Felating to that
t and aleo to the strips is not sufficiently clear and
in to warrant « change in the finding.
It is urged thet the evidence does not show that
@ allowances mad@ complainant fer extra work were the
%e tiatew ott daniagn eter ber? e'dxwoe odd 3 we 7
sige SB ik te Lalpeee sae i Z ! waat tet es Ps Geyy jae & ex ap fh ty
ent
esOMOd IVS
en te ~ RN
eotiupst soertnes oat ‘vous v0 wos sels OF
ve f OREN Brvor hansen il
| | bnadbagoe%e baer Lis sneewed ould ‘ak awe oe" Sean ls Lame
Hl ie fa oa et ae
4 wtesgga an osmesive ot eos “02 dase? pol et a
i LOR A SRS nay as Bi ioe. vad wr
at don ous ine .atH0q ‘esd we qos me bopakg e¢ a2 gtew ba A sen
i ii i RR ae es
e hotawe ein0g that sasha 908 sowesie ar + Suan haiguon yd hbeoale «
ia si ah miei Ete Kio Bayaae aan ae RSS
Mee ‘ghoeqews eoad? ni soaxtawo oat baat uatedal? Lion oxed ant
gia: a Bee £5 me
a
| | a aq OF ef Lanntsd Sed ete emer ei waaee’ 2 yeah by
fi otha inet ‘ % Fs Hy ‘ sp
i want ott vonky baa yateog, oat aebas egerones ‘Yo no -" sn
a OR Re el AO a We a
i 20% *. to ate aud woeta 40g ot eaoceu aan snsnisiqnoe oa
aCe BR) ER ERR Gee
fe oud benitene ods nk beoiud Lh gon * seaite
© an * ah ‘RS yous age nent Ae
ul ware qed a hiag aa olleriodad stent vd “6. oo Somna
i Di oem natonig hortmpet teatime ods te mokiolgaae tt oh
: einntg Sour yates tno a2yeg out dinonag motgenaunh » 28 Me
hi ctiusatatgmoa yd bogaly mans eateradse : 10 ut t alt te qos
y Sart 29 Seon ohdasoendt até Rod tour to eome eomeuds ond mt
whdats iva of bie snombatqaieo sto hate tot ba allt to #
Bh OH By ot ‘eRe
wee eo 0058 20% sibeze sdmabaw'teD ovis tae vee a
COIS & ah Patines ws Mey aes be Rael +4
aso jon Rb sinew sateasiy 20 bent ake ebkbere Ont |
Ki ak Mii. ag a ai )
qtovewed sotvee salad sdostam09 eds ‘%0 ‘aula tvere
i KR. ROR EG, 18 py
Ee opms 802% fies Atewonte dneawo wont ont wo%
yavane Sai Aue Rigel hate s wa
as? ‘te atrutitd ~ond ao woke staanme ob hopiaste are
ei Qt. a Mon Sth i sei
duals oF gukiaten vwromiseot “03 tent od Smmosn
* sie eRe ak it an che? o as
bite woe parma tom Py outa ode hae a
fay am tae a MRR a NR Gis? ; ok ta ich, 4
tad wis doa desi ssa al nwa a ae
yi DW eater
as" ‘oxen tow
hy : ¥ 7
renee + fair and usual cost of the sume. this point
inet D etteg been made in the court below, oxnnot be raised
’ for the firet tine,
While the decrees should have expressly disposed
the intervening petition the point is not raised. Finding
9 reversible error we wili affirm the deere.
AFFIAMED »
¥o Po Sep and Fiten, Js, concurs
bopkot of gonmno ywolod
cotlneaptatel hiatiniassiin tt Tout ”
ee “ema
agate hnsssna ail frmnn sf wd me
wean # & weied.eHH att any? a No maid Ba
get shooles vom eb dakeq ont
Fae I DNR wired ead UA ee aa Denke,
ge peKOeh odd aubite titw ow
waite aye @ rs an i tune
ee i
| bar woe aie, bin
La
120 + $1249
WILLIAN G. HARLEY and
CHARLES ¥, HARLEY, ! APPEAL Fee
Plaintiffs iu Error,
} SUPERIOR COURT,
We
COOK COURTY.
| @HORGE 3, ‘HALAS and )
EDVARD C. STERN AMAN.
Defendants in Krror. DAAT A —aOQ H
es 4 A Bo G fxn @ .¢ DB: LP
WR. JUSTICE BARMES DELIVERED tux OPINION OF THE CoUuNT,
This writ seeks the review of a deoree diemigsing
‘Complainants’ bili fer want of equity. The bill alleged a
partnership reletion between the porties end sought an
‘“Secounting. The portnership agreement was entered inte July
“48, 1921, “to manage the Decatur Staley Football Team." Bo
“definite term of the duration of the partnerghip wae fixed
end RO definite arrongements were mee between them for con«
"ducting & football toam for the season of 1922, One was,
however, sonducted by defendants, and the b11] seeks an
‘Recounsing from them for the profits of oth yeare.
bi The evidence presente the questions whether the
Dortnership was net dievelved before the football season of
92 » and whether there was eny necessity for an accounting.
n findings of the master on thoue questions were againat
' ite, and the question before us is mainly whether they
: Supported by the weight of che evidence. We think they exe.
inching thet conclusion it is unnecessary and would be ime
Beticable to review the conflicting and voluminous testimony
on Which his conclusions were deduced. we shall, therefore,
fly recite the salient facts found upon vhich they rest.
HE i Ca Se
aaa
eT oat
ME og iotaad sage “Fyst! SG
. YOLAA 9 B MATIAE!
MOSe TARGA Tans - " ae
aah Saat" - see sel wr
eTH0OS KOLARANS
; oyna 8 ee ath deg nis, Pe RMI tReet eat? ™
ie .¥eweoo BOOS Pa
, @ Q oA on | A is Ces a, eos wit , iacemarte 8
“ar scampi eamLiAs mortedt .m
abba EA il ba Koneso
a) ave Naw
getesiasih eatoob & 49 ‘weenes r ern we tet
a begelia Like ont » qdhspe Qe goow tot L250 sceumemneil
| an tdguon dns woktneg onde negeded selioton qidexemdes
| : ut oiak doredns ont IMoMOOTES gisexsndeeg vt = geek smoot
a | ef * mast Léadtoot yokes): “masse oe ayaeon. or”. (« beek ef
bent? naw qiderensueg old To motiaiwh edd 10 pered og keuk'
«soo wet weds aeewsed oben oTeY adremmgeetts | estates on »
ear oa? 4 TREL 9 te aO8 ots «0% mowed tkndtoo? @ guide
ii ae adoon iho wld baz eedanhweteb yh hedowhaoe proven
\ cetesy dfod Yo vervonq one set mous sont amiss
i | ecig xadgortw anotioomp one eéreseTy oanebive oat ack
; 4 Xe Bonen LLedsoo? ona eroted bovlowedh ton enw i 48 :
1 enneuneeen ne 2pk Yiveooen Ge Bae erodd sedttote ona -
gealage oxow ano toaeuy eaodd ao todgam edd To opment
qode sodtactw vinhon ns eu sio'ted meiicouy osid hens _ adams
coun ends Suid oF svomebhve ot? Ve saptow ait WA petroqaua |
ask ed Bivew faa Yrevasoomne ek &h soiesLoneo dase satsto
ypromtse od aueninuler bate gakéwitiaow ot wnkvon 08 Adal.
evotereds yLiode of sbeoubeb otow anotautomee elt Sobtw a
etawn yeas Koki nog ane esonk dsnttnn ods aftoot Xi
Im the year 1920 the A. Be Staley Manufacturing Conpany
of Decatur, Illinois, being interested in promoting athleties
among its employes, organized and cendusted » Teotball team known
®e the Decatur Staley Football Team. mong ite employes were the
two defendants, who were ereminent football Players. The foot.
ball club wos 9 member of the \merieen Professional Football
Association, composed of a large number of football teams of
various cities of the country. Defendant Halas, waa active in
securing prominent players for the Staley team in 1920, and the
early part of 1921. itm 1920 these playors Were employed on a
salary to work for the “taley Company and were to receive fram it
& share of the profits from the games Played by the teum, after
the decuction of Sxpenees. The team was operated im 1921 mainly
te advertice the company’s business. The Company appointed Halas
ag ite athletic director. The team played that Fear in various
@ities, including Chicago.
In the spring of 1921 the company decides to nove the
headquarters of the team from Decatur te Chiene during the play
Season. To that end its superintendent, Geo, Chamberlain, on
Vanuury 27, 1921, negotiated with *. L. Vecek, Prevident of the
hicage Rational League Bal), Club, and secured a written loase
from 4t for the uve of ite busebell park (called the Cubs Bali
Park) in Ckiesge for the iaet three months of 1921, which was
Signed in the nase of the Chicago Club by Veeck, ites President,
and by the A. %. Statey Hanufae turing Company, by Halaw as ite
Fepresentative,
_ Halas at once beonne active in procuring contracts
from Prominent players in addition to these already on the team
t*
eo)
D4 Sonferred with complainant Williom @. Harley, whe was not
a:
a rip mr
qnaqe? yttuatootumell yokotd «8 +A ade OF0L xooy ond at
sotseldas gakdomere al bodawsedm aiied cobomiLil «aiteooct
sro asad Liadioe® & beveuhaos bun beaioegre . ene yehane aod ane
ea? evew oye Lema ath sow smnet LLadseot woknee ‘tudoood ‘one
took out sareeata itadieot tnenimecg orow odw gatmehaotes ¢
tladtoot Lensdeswtert mawk tem etd te wdaen bacon cus:
$O seme ikadseo: Xo podiuua egrets te hosnaene’ wot satoor
ai ovatus sey | vend Lait tuasdee te » Wadeuseo one Ye askite awed
pdt haw [ORGE ah anos eect ont wed evegein tasuhnene’ ombuar
smo beyeiqae euew wreyata eowdd O89L mh. £902 Yo) dink
$k movi S¥sooes of oxew bine, yanqmed yolads edt sod. drow 08 ered
sade sened add ye boyele wemeg ol? mond eth bore ods, (Reonade
qalew £262 gh hedarece sav seed. ad? sesomeqne te moLioubare
edied seenteqga Yoga at saaeotawd «'egRED. ond ouksewan,
awoknoe eh 99% fant. boyelg maar oalt aagoemsh phteddean. th:
ee a me Ce sOpeohdD yatbutoms vant
ods oven of pobdinod qamemeo adg 1201.20 gateqe: ot ah my geek
‘yely etd gatuwhoneodstd od satepod some) mend ond Yo wend ramphs
0 oRieltadendd » ood ginedmesmiivgse ef) bee, dome oT» smpee
Od te daebkaatg Haoe od oh stew Modadsogam gL8GL 40S rerame
Sunes Modebww @ howuves pnw eis’ Lhoh, eapacd Lenobeel, opal
Skah add ot DaLiad) teeq Sadoand oft. to cowvadd co da
asa solide gS Ro adinen soade sn0k, walt peg
aaoartames, iii me illid ee fac anbMc
mand vcd mo YdaetLa aves 09, meleLdba mh axoyele fevabaont va
dom! wow exter ee ditellon tL EY saamtaignes Moke aoe
o3e
& football player, with the view er accurime the services ef
his brother Charles, the So-complainont, who was noted ax a
player, and other Players whese serviess -5 auch were controlled
by paid William Harley. The conferences resulted in the portner~
ship agreement above referred %0, hich reade ac fellows:
“Charles “. Harley, Edward ¢, “ternaman, William Harley and
George 5. Halag enter into am agreement this 19th day of July,
1921, to manage the Decatur ‘taley Football Teem and to share
equally the profits and losses of said teem, The above four
Mamec will present to Geo. x. Chamberlain periedieally during
the football season of 1921, ao sum of momey to be designated by
them." nid agreement was wigneé by each of the said four
Mamed parties.
Purauant to the arrongement the club omtered inte the
Geneon gamoe at the Cubs park, in the middle of Ogteber. Alliam
Barley attended to certain business matters and had charge of
the gates of admiesion, and the other Portios to the agreement
were Players on the team.
. October 6, 1922, the Staley Company addresued a letter
to "the Staley Football Tesm' confirming a verbal agreement to
Place the names of 211 the foctbali Players (not to exeeed 19)
on the company's payrolls nt a salary of $25 a week, with the
« beption of thoce already being taken Gare ef om regular jobs,
nti {t paid $5,000, ineluding 63,000 to be paid for advertising
a the football tenn'n score 500k, the agreement to end at the
de of the football season. An agreement to that effect was
‘ imto and signed the sane dey in the names of the A. %,
| o ; Renufactur ing Sompony, by ite president, and the “Staley
ube" by George “. Halas, monager, and Edward ¢.
Mm, beth employes of the company on ite reguler payroll.
ae
Li a aepkenes, head SE htt to weky sh. she a
ita #8 bedon eae eae pPmonttoLemeo~ee. eats seetemt : on peed
i yl r Pe ik “ Pa &
| Bn _setoxinan pxey dow ae. aeolvies south axovale :
a WED 4g eae TAN gy he
i 19 194 axis ob bovssuot, aeomore mop. ear yokual wakitt i eho
+ awoson ne shows Boise oe peraster oveds & .)
yu « toh eat HD
ha, oka mokitsw stamanreot®. 0 brew « trot o” wed
Cie, ee ae non ieee hak me hf 0 BS
Hi tie x0 wh. mt addd snommonms ma oomk cade redie eels »% wa
A PMO Sg ERG BP
wate, of bass west iLadeoo® woket uasan0d ‘ost? ogatt nds
mwo} wrod edt Soret bhoe Ye sera tr tae
alk dacs si aun iiibiiun epee se 4
| ‘od ent, poxotae aiuto ri sno so yuan rab pt foam, or
MARSA yrmdosue 20 acubhm ode mh ctu RMS oat 9A nomeD Bip
i te. egredo bad bus exsddom ononbend aiae sr i +, AON EA. RSA
‘ ang ae, one 98 eae juclane “ee WOE
oe Rh a avi tens vane boca og
cesta * boozoxbhe ‘uae Ue . ae
hed a aremnsa'ny 2 Ladxor # fon a “me? Cree: ener
rae PAS ie MERE) Gren ang ae
(ee beoons at dom) aroun Lhed$oo ods ite on
Ne ee
“is f Wy yi TAR
seat Paleo. ee ¥ oxo nekas pied erate eons
} Saameetye ot of sohd ang
i hh, babel ah
yatersrevie <0? bhag od oe 000488 aatnaion 2000s 9.
edd t0 hao at sagsnenge an? oo 'eseoe tune Kha
Phaser s: LRA LER. MES i alt
naw so0tte tats ed saomeorys wh, KOR BET Lhadseo% hd
cm c aekA pie
1 9A ould 20 somaut oat mk qab one a ocd Deepie fave i pee
! PH AO SN NPN i Ah A A) BENS IRS 93 8 on
olate* ait bas sodbne at
hs mares tee Sa" : Me eng n iae fa Re
4? _umebit aun eTOpanam ¢ Jenin: +i} agreed
i ME LE iD RET TE Tia OO,
Prete seth n82 mo gm ed Yo vayeens dies
fhe prefite of the season, chich approximated $21,600,
were drawn from the bank Yebrucry 14, 192°, where the funds of
the club were deposited, and diutributed equally amomg the par
ties to the partnership agreement. Only 07.71 interest on the
bank account remined undistributed, but the same wan subject to
the joint order of Tilliam G. Harley and the two defendentes.
Said sum and certain eweaters and towels in posesseion of defend-
ante constituted nll the seaets of the partnership not distribated,
and these were tendered to comploinants before the inetitution of
the euit end ogain before the macter, and ee the aseter found
are still subject to delivery om the continuing tender.
The partnerehip agreement apparently contemplated a
partnership only for the neagom of 1021, as it epecifiecally
Peferres to periodic reports te Chomberlain “during the football
sensonm of 1921." However, no agrecment wae entered inte between
the parties for the following yoar. I4 appeara, however, that
im January, 1922, negotiations were had between Cheudbe Ladin»
the superintendent of the “taley Manufacturing Company, and the
president of the Chicsge Nution»l League Ball Club with reference
to obtaining « lease of the Gubs bell park for the football senson
of 1922. In its correspondemes the <tsley Company expressed the
imtention te place another football teom im the field, and stated
thet it hed no other representative ot that time than its said
euperintendent. in an interview thet follewed between Veeck and
| Chamberlain, at which defendants were present, Veuck said that
| defendents would have te be = governing part of the football
| team of the “Staley people" if they were to secure the lease.
| Chamber ain gaid thet defendants would have to ge back to
q Deontur where the matter of their conmhection with the fectball
eal
e
hs
“Koy oad Homes Yitaspa bod tesa ‘hele “hone okie way!
‘ahd ah todrodat ITO Chad, diteaderge qhier shlé oa a
od to0h8ite wow omek 948 tod pebicc keiths bebe hy
veteiabno teh amd aits Kiki YORK 40 wekiten to dink, kel,
wbaetes te selina senog At alowed bum wtediowd Peay a ee os
shodedixstash don qhaatondiig ede to aiedda ait Ltn bebnILIhOS |
tm soktashvons alt euqted abana birqued “eo Hixiteel —T oilkdd
inauort isdaan eas 2 ban <rosaion ens veto kane Ome Feels
yhebaet gakuwitttes off no yuevitod 62 sosndat Tein
4 betalquesmes yWodouagee Jromepne hates sak kaa
MEaokihoege #4. am Asn to moose ong, wer ons wo ube
_ Shgcaaee outs secunllie _— fase
ory
aaah dye m
ent? hecnewgne 5 alll ‘tite oi i :
hutede dine ghkek? ote mt ath Srataney i ns o i
‘Ekedoot ats wo mr aad Liste ite ee 1 Xalt pee
| 1 caged edd etadan of vibe oat a i) he “3 sa ’
ey ere eyes rane
Ltadieo’ ‘mate’ iin soltooduod
AT en ea ‘ fy AR a a i as a
\ Rs ete aa rie ee ae et Sh Ae igo ry Us
team would be arranged, bui that he had mace up Bie wind thet
defendants would not manage it. The following duy, January
25, 1922, the Staley Company sent «1 letier te Veeck wtating
that the company hed eoncluded to withdraw ite applieation for
the use of the park for 1922 end dissontinue ite athletic
connections. The company did not operate a football team for
that year and forbade the use of the name of the teams
Thereafter William Harley, seoting apparentiy wolely
in his own interest, and Halas and Oternaman likewise acting
only in their joint intcresatse, sought a leave from Yeeok of the
Cubs park for tho year 1922. Veeck enid he would give the
leases to whoever obtained the franchise from the 4aerican
Professional Footvall Association. Aftervarda at ita meeting
in Canton, Chie, Jamusry 28, 1922, Herley presented an application
therefor in his own saue, and Hales and Stermaman presented one
im their name and that of the Chiesge Bear Football Club, to
operate a football team in Chiesgo for the year 1922. The
franchise was granted to the latter and later they secured «
lease for the use of the Cubs park from Veeck. Both the franchise
nd lease were granted to them im the meme of the Chicago Bears
Football Club, Inc., which defendants organized and controlled,
‘Qnd with which the Harleys had mo connection. Harley attended
aid meeting of the association and wae present ot the session
When the respective applications were discussed and the franchise
Was grented to defendants. “t the mesting Harley alse applied for
and was gronted « franchise in his own name to opernte a team
‘S88 Mileoukes, although he had previously made « trip there with
| ‘Fegare te the matter at the expenee of the partnership. Later
fm the summer of 1922 he applied to the prevident of the Staley
fats beta ede qu eben bat om daale fue cbognainn odbkwow me
autos yeh Gekwaiked of? 46h onamdm tem biuow wtambae’
t gabiads dese! of «essed o saee yeqmed Galeds ods geOOL
| i «o? mbsooiiqg® adi wethtdiv of bebuientos Bom yooqmenledd: de
| ehiolide aIf ovmisnoowkd ban SOL 4? Aeaqrods Yovenm 4
tot tmod CLadinet # singe tor bts yaaqaee OAT penekieot
ae oT Le ne
| poten yilitoteggs gakton yYolial malLlA® westeoredt oor)»
! / iron wadwoels wamnierced® tan ealel dae ,seene deh mee ete
i et? ‘to weer! mort oneel » tdgues potaotednk sankey tied? who
wh old oly Muem eu btw doaov +800L wn oy Gile aWY atuOG) a
ae 3 “ABO oe ead amet natsonae? oid hemtagdy tovDede 0%. om
i| wakros aff Se gbtawted ha . sto htebeeond Lfadsogh Lomo Reems
(mek neRAGGn ie DOPMADIE’ EHKuE ALOK OR eal «ebID 4mereNT
I oxo batman MameeTssO we aKa Se game ewe ELE ee wo OR
ae OF qHRLO Lindow tne agente odie Yo deste bn smn beds
be att sane atey oe <2 egookat Ad med Liné¥oo® @ sion
i wire st Metal hae tersel wit oF sosaory enw watson
oulstocinr? odd mto@’ .xtesaV none aang edie) ould ‘to bow enfd) sw wen
wus omebitdD sit Ye anni uk ak maint Oe nosey oraw cowed |
heLKetamey bute wurtstayre adaodaoted ubtte yvoml dus Ltt
Rebates ta ‘yeltel .eetvetnmos om bed eyeheal wate siokete abv aw
“sitwnes ade to FuesoTg awe bite MO Ree Reade wae 0 "Neto it
suitoare’t vt? hat hemeweaks orew eto Ba'so Ragan wrisongeen aa
ro? hedlqqs oake YoLuel yititoan ald Gk satatadnmttod 98, Rowuen r
moet © oFeTeqe O¢ om swe eM Re dakdeneNT « Kekmueg mM
Mile ered? ylet a whom Yabo Ryerty dock wat toueaite omnia
| tatel .ghtwront tag ot Ye sumugee oath de wedtom ost 08 :
are snobaseng oss 03, bottqqa caaiiad some is
Fe
i
|
-6<
Menufacturing Company for the right te use the obteley name
for a football clus to be operated at another football park
im Chicago. The request was denied. “hile Harley Slaimed
that the applicution was made at the inetenes of Halaw, the
latter denied ony knowledge ef Hurley's intention to apply te
Staley for such purpose, and Stuley, the president ef the
Company, testified thet Harley did net mention any other ¢han
himeelf as interested in the project.
At a meeting of the association, then known an the
National Football League, August 2¢, A9Se, at Dayton, liarley
Spplied for and was granted a franchise in his own name te
Operate « football team at Toledo for that seasen. Harley
and Halas sleo diesgree a3 to whether this application wae
Wade in the interest of the partnership. Vrom these verious
incicents the meter correctly found, we think, sn expressed
intention of the parties to disventinue the old partnership
Feletion,
The contreets with the pinayers followed the pre-
seribed form required by the national league. Yhose fer the
year 1921 were between the individual players and the Staley
“Footbali Club, and those for the year 1922 between the players and
the Chicago Sears Football Club, Ine. By provisions in the
Players! eontrests the club by written notice te the players
to @ certain date might renew the contract fer the term of
year, except that the salary should be such no the parties
then agree upon, or, in default of the agreement, euch ae the
; : , Might fix. The pleyer was required to accept the aslary thus
ed or else not play during the year otherwiee then for the
Wiless Telenaed by it. Thie reservation
ae
ae
‘
ut
ve
4
eR
i)
|
;
ra Rp eS OPES
Setgerateet cece ee
ee
egeagat ge Ta) Obs mae we sagen odd ae% Yieawes whdaust oot
Ming LLavecot wekseae Ss beddaege does: sole thadioat«
“pomkerd eehind 6£id® «Pokies wiw Sesnpon wa? | apeeeds
| hd naka te womesand wad Va ebem RaW no Lsav tigen ead
of i od wehtavenl wo yehsuh tO sabdetvand yaa’ ‘be kwwb ome’
‘gett te dmobheerg ond peokae® baa: enooqung Howe 20% gel
owe ante uit eho aeM tent ASB whtak gaate belt Rtend grey
sdudtotq ‘oats ak bationegad eo ther
et! ee sone mold ,aekdaloeean edd te: putecuniatenion pte
ee anedyad da ghCOR (OS daague vemgesd Ladboot Sie
“gr heuer mee 224 at ootdonect @ bedaity eae bien 209" Rol
Crenegsil stoncbd dade 4oY Ohoxet do med LhaeedY a aie
Gow ROLSOLLEGe Old? redsedte 6d on eotgalh cose datall’
pee tuae oom? moet oqgtharenibang ole ‘te tsmaded oie mR 8
hbumete ae yates dr bite? Goon ried wetsben add atnodd
ehitetead be « eid obatsavoe1s’ 0% piston notiine
‘ bak @ ult bowotlo’® arigata: ' ite atd 2° obbinuinane paren
“gle tOT ovodtt’ "J omgent” Lomb team ests we bexkagion mot eel
“pave aie bee wxeyate tewbevtbak eas" neato
aroyate “ot eww seer od ‘oH0 sot uoste pene dito’ &
oft BE auth tarvoug Ui Veet” auto’ Chhereew eaunl egabi
wairyalg od 0d bolton musa tow i Gumo! vse nd “94
Ye esos of Yet duaeemon’ wate ‘ronen tahoe marten 68
pokevey eit en dove ie hitter ‘gente ite iid peoaee
asi? vo dons \2tnmbityn veld Yo Stimtheb mk YW (hogie warm ae
axle ernie of tqncos Os bexkupedt we cig i” ne iy :
edd er ant oabietutte “eee etd” dba yee ox ‘but
isting 8 Note vtedle’ dike’ “yah We ai ae ta
oYe
of the club and the promise of the players not to pley during
the year otherwise than with the club were expressly: taken inte
consideration in fixing the ealeary, ond the undertaking te pag ite
The conatitution and by-laws of the football saseciation
@le contain the provision that in the event that an organization
holding membership in the asecciation cesses to exist, the other
members of the aseocietion were to be duly notified and furnished
with the namen end addresses of the players releseed by enid
Orgeniaation. <Aise that in the event a joint partnership holds
membership in the ascocistion and ie dinsolwed, the dispowition
Of the players formerly under contract with 1t must be made by
the former pertnera, and the averetery-treesurer notified of the
details of the settlement.
There was no proof of sny action taken under the Latter
provision. But complainante maintein by reason ef the reservation
Glouse im the contract with the players they acquired valuable
Tighte in their contracts which constituted oan aseet of the
pertuership ct the close of the football season of 1921. They
@lso contend that the portmerahip has never been dissolved and
RO account token or settlement made.
The master found thet by reason of the refuunl of the
Staley Manufacturing Company to continue ite connection with
professional football for the year 1922, and by ite failure te
Spply for e renewal of ite franchise to operate as a member of
the Professional football asvociation that on or after January
88, 1922, the Staley Football Club cessed to exiet as a football
elup and a¢ a member of said asvociation, and thet on that date
the partnership arrangement terminated, and that no other
memes was formed between the parties te thia suit. The
**
ta ¥
Car
—
a
er
ae
ee
antenh h9, 8 a? gon ezoyele ona bed er, oie ae fake *
Rises fu
odes woalas “uLaee mex onew uta vale nis kw wate oakwsadte toey
of weg wd gatsled x0 baw ods hiws werokes waa unbat at ae. Save
ae htakoowna Liaui2oo% nas bid owai~ed has noidué2sen09 at?
i PENT RT 1] ks ‘g
mo ktastangre cae deste soy oxta cy fede Retaivery bred , Btataee e
EW | Ge
onde ots vetue os avasan motdetoonse oats at a bela rogues abd
boria kari wom boktasox ad od ot oxy motgadoorne, A snd Bt ot aan
‘bee ql boaactes exeyate ‘ose 0 sonuerbbe ban semen a
“4 Sea fp a
a1! hy
Wott isoqake aus <bovouatd ab an motéatooues ode “ # Bt
a ebse wd ma ak thw $on8m00 volta ctnastet en %
wee to bettisen rosuanead-qxosorze8 baad baa ates uy the
} smo ten hog eo
1 Ay
xoveat aut tse feos motion ve es) Ratios on enw etodT
Rey OTR RE wee ‘4
aoksarrones ads 10 bane w eb teha “emomtazgaas auf = atten
ek! Oty fo Labaats
eLduutay bextapos ed oreynty edi athe. featenge ae . i .
ae PRs * a . if
ode ‘to donna me bodes Leanee Sotsdw sdaauienn nheds bs 3
gaat’? » ined te nonaoe tLadtee® berg te easels odd By
? Sa y Ree Dua
beeen » bovsovnt wae ‘rover aa qidexont seg ods J sot
eben taewels 390 19 mated oo
ak Hers Bee i. y Sat x von 1 Bed He co ye Be we
i aut te Lanuton ate te meaner we teste reed ta ster ‘gil
Se See
“abe sete oonnes otk suatsnoe ee
4 TRIS pos dah be Ss 8
ge mute: ess w ae 300L 100% ag wer J one
ws sacnow 8 92 odunege o@ sotmonort ash Ye
MRE REO
LLedzoo% & te eae oe ‘bone0o uk Limstoot + }
; ; Ma Ney a Re ie ‘ty ol
_atob seats ae nits baa “saotgetooena biow nati
Lae ar wea Nias eta
sete ou toad fo ogomamred 4
homie Sea
-8-
master further found that the reservation clause im the players!
contracts for 1921 was unenforeible agoinet suck players on the
Gisselution of the Staley Club, and was not enforcible in fever
of the Chicago Bears Footvnli “Lub, or by any of the parties te
thie suit, and that mone of said parties had any ownership or
eontrol over the plsyers after thet date, and, therefore, that
the pleyers' contrsets with the Staley Club ané ite good will
cannot be accounted a pertnership aecet of the parties te this
suit.
In reaching these conciusions the master neseasearily
had te accept the conclusions of one witness or another where
their testimony was conflicting. On the version of the evidence
gecepted dy him we see no ocexnsion for questiening his con-
Glusions. The “taley Football Clu» was formed ond organized by
the Staley Nenufecturing Company. Ite athletic director, Halas,
Was to manage the club. It wee used se 9 medium of advertising
the Steley Company's business, The compoamy practienily turned
the club over to its athletic uanager to continue on with its
Mame for the season of 1921 under the terms specified, whereby
the seme was to be conducted by the manager of the club with an
‘expense to the Staley Usnufscturing Company of $5,000, The
Partnership contract was one to mannge the elu» for the four
Parties to thie suit, ond for the division of the profits and
losses between them. Yo time was fixed for the termination of
the pertnership, and the agreement between them and the Staley
Menufacturing Compeny did not contemplate arrangements either
‘detween themselves or with the Staley Manufacturing -ompany beyond
-thesend of the football sesvon for 1921. ‘nd when the Staley
anufactu ng Compony, which held the lease for the use of the
Baseball Park, conoluded not to have a football tens
eal
Solty
a iby
th
Pi
aii
hee
Wi i
i het
mie
aI
eR
dt
EE Eg LCOS
neg A met ei Ca a
Resyed weyea, yi dua’ oo toaws heh welt; As bm, te oer fenaods ,
‘ong Mi wh cule molderrodes odd dest aed madiaw? pe
ait me aeeyelg Meme Iethoge oldierotase: gow LOL aot etemns
ovat ah eidteretne Jan sow hee qdwld yokes’ ode te mokamtes
od sobiieg aie % qe yt ooo gael) Sieddee® esank ageaaids ode
te eres Yue Past meddcong dow ae amo tats be ¢twe oa
taht ,wie bord? qhme .oteh dud costa wreyete ode mae
dhe boom oth oma eho qolat’ onde dike sfentines, " anogs
aitt oF nohitag off ke teous gideteartey « beseveane of a0
is rimrivg tik 4 tore eitowk del pet nail
| Uhuenasoen, aetaan ahd engdnnheree engse ene si et
mipie caddone %@ aponthy ane 20 unodausongs aid Aqanve Oo
Socohive mi te miei odd oO «pode Linco aoe “alomks 998, 1
“Nee alt guinolsuou 20% aolessve om eee ow abt es nates
(Yd beatagte. baw danse? caw aS Liadsoe®,, wolads Osh saao.e
atahel guodoonkh oiseiate odl . swaogmed gaunt on kyaai Wadass
Bledisvss to, tuibem a ae howe oaw Fh). +suko ods oyonan ot
danas qilawdseong WRG MP ‘emoninasd: an yeeqgme! wala
ad2 siddw ao eumdenen 69 eaqanume okteddon wah of xovorduhe
yoy «haltiongs eae? ods cobs L564, to geaene ale amt of
as ttiw tute ot le xegesion om? Yd hedoeoe oe 98 ua we , |
EY oRG, OH Be ‘aismeo? kad nema Yoko ott Of oun
HO" adh 10% dle odd oBanOR Ct eRe eu Sootdaes qhde cored
en ati Org pile YO gokadws’y sel? not ime iam whet et ewkd
te aodianioses eff 26% bexk? wnw omhe of « sls moonted an
THO ott Qe wold Reowded fapwmwenge ald dste bh canaries!
“Aedes edoonepecis etakqmsnos tom DLs yangmnD yaks
wid Yo wad on ot onal ox |
NS)
" mes Lindteor ovad oF fou bebuonbe (ust Lhodaent
==
for the year 1922, ond refused to grant the use of ite nome for
thet purpose the otuley Poeotball Team, with which the contrects
with the players were made, unquestionably canned to exiat, and
with it fe11 the arrangement for any farther manegoment of that
¢iub by the partnerghip. Ase a consdjyence the pertnership wag
Gissolvea, not only by the completion of the ousinese for whieh
it wae formed, but by the exprese will of the partners ac indicated
by their several actions recounising that their agreement was
Limited to the management of the Staley Yeotball Clap, and that
the attitude of the “taley Yanufacturing Company required a new
‘Sfrangement. lt im clear that none was made between the parties
;
te thie suit. If one was aver contemplated 1t was never effected.
The various steps taken by the parties separately, ac above stated,
indicated no intention on their part te act eolicetively or as a
pertnership after the Staley Kanufecturing Cempony withdrew from
the field and they divided the profits ef the elosed seneon of 1921.
Undar the recegnised causes of dissolution of partnership
both by the statute (sec. 31, chs L06a, Cakdll's Ill. Re &.) and
authorities on the subject we think there can be ne doubt of
the dissolution of the partnership in or shortly after Jenuary,
1922. (Story on Partnership, sec. 280; Persons on Partnership,
S@c. 283; Rowley's Modern Law on Partnership, secs 5723 Bunk of
Hontreal v. Page, 90 111. 1095 Bohrer vy. Drake, 33 Minn. 403,
410; Kennedy v» Porter, 109 MN. ¥. 626.)
The general doctrine as stated im secs 573 by Rowley,
omé the authorities there referred to, is as fellowe: “If the
length of life of a partnership mie not been definitely fixed,
‘the firm exists in general at will and may be diesolved whenever
‘any One of ite mesbers bona fide so chooses." It was held in
e)
to% voinm aot Yo Sar bats Putty oY hou ter ‘bus’ Licvenliacpdvaain
ctoortnes eat Moki ative ymaotl Lindaodt yore oni seed :
vadiae af Seadbo yidatiohseoupniy seni wrew wroyelg
duly Yo Veredtegesi teHdxe yaw Cot debe yN
aaW qiduywnding bid sostenpoutos a bs” .qkdwdous
tolis Wi vuomtoud od? 16 wedsetquss oat ve ithe tod \heviews
hotavtiat vo wibading bad To Likw eesxgxe odd ye Ged \bomteY baw
eew doomsetgn Vie? Vets gokcinones ate tton fatorsa ‘eho?
Set baw .auk0 Lhadioo% ‘elo?’ odd to suumegamnn ond o¢ bode
wea a bortupes yanguod ‘pitbaud ota yotow’ ont Ye dhuthete ‘
aetéuig od} weowled phan sew son tals shone ‘en dt *ditemegine
sdodootie. noven sew oh bagalqno dann cove eow ome Sx SU Kaiw eed
sietate svede on thedeaeqea askiung add’ ‘yd sede gst’ ato tua G
& 08 10 Uldvbrosiion fon of sung viedd AO Kotsnbead on saint
sort wedbitt ky Yaaque’) galrd¥entuanit votes ot tod el |
£88k to sontse bodes off % atiinte Gis bansvad yore sal BEedY 4
qidn rol TAY to nottalcbadh YW dodtinn Séaltiqgebein ‘val’ dela WORM
bate {60 UM EE WAELENAD yaaGX sit £0 Ven) ‘waledana one Qe Ms
Yi devon oa oe mae “Sxens tated Wy sooleiin ‘de Ho RUbsieon
qian sed vhetode 40 ak qhteveddday ete te so rdnitoawte @
.Gidatendaat Ho amonre (588 Vouw qbiivondte® mo Yiedt) "VRE
Ro deve tive al pag at Ty ‘wit “wroven: Vern
eQehwod ye ENO Vea it’ atte ha ent keene 688%
ee
LhondY Uleadnetes mood Yon wall qtdorabitend |e Ww WEED Te 18%
xaventotw beviodats of you dad Mtw da Zeeuwoy wt walling inal |
Wet bod wow ue oe at? Amott awvidiiite nok to ome
*
MOE SAME TOGR ly RRL BE OS MN ‘ai sae Rear A Kachina antl opi
=<
-10-
Blake vy. “weeting et ois, 121 Iki. 6G, that where the purtnerehip
Wee not for a definite term it might be dissolved by any aguber
of the firm ot his pleasure by notice to his copartners, and that
the act of one of them im going away and abandoning the business
and property of the firm was of itself suffielent notice of his
Gesire to terminate the copar tner ship relation. The knowledge each
of the parties here had of the separate appiteations for a franchise
from the National ‘saeclation to operate a feotbal} club for the
1922 season in Chicago wax wuffictent moties of the will of the
Pertmers to terminate their prior relation. They well kmew that
Whoever ot the franchise would get the lease for the Cuba park
@nd thet the other would necesvarily be exeluded Crom ite benefits
without «2 new arrangement between then. That the partnership was
effectualiy disvolved oonnet be doubted.
Inasmuch a6 011 the profits from the portnership were
Gistriputed, except the smal) eum of $7.71, which with the tangible
Property left was tendercd before the suit was begun, ae aforesanid,
amd inanwuch as there were no other assets to form the basis of an
a@counting, we think the bill waa properly dismissed for want of
equity.
APPIAG Be
Wridley, P. J., and Fiten, Jo» Concure
Ghsin roms aog att omasin Fost 490 LLL LOL oo fede Bmseows 9%.)
‘ wodeme qs YC hovkonats od Piyde ob mead adindiod # xo%, gor
| dowid On qeiomezeqee at OF sedsan ys cumante ald fa wit ©
| saorlnud oo gatnctaeda bis Youn gaton mk sess to ana 20 ¢o
{ si 20 onliom ineiettion Lisass te anw seks odd tO Koeogon
fe2e agbolwork sai saokia£es gidersas tages odd sage Fi PP ae
saldonert o 18h amolsnations adanaqen fy To ded rod antinog, »
aid 18% dake Liadice? « atarsge oF Rekentognas Lam Anh eae
, ite Ye LLbw ond Je eokion Jaolnkilua pnw operds ms moana
sok? em Llow yoat stptinton wodeg theds egamkaies of gue
“Mam odo suid net aeuek oa? doy bhirow pakdomee? edd, gay. ae
aiones 98h, p00: Nobisann of néavannnneg, Mtge tele nib tal
ERROR, OH: SARE: sama srogwrd od aomopmersa wee & te
byes eb sbadduon ad Femme heviewakd viens
srew ehitlibingiiest ons moxd adhere oid Ake an dommpont
eidiynnd ond Addu Mobsw ¢LTe?S Se sum Shame ould sqonn, « bodadt
ahinatwe'le we .eamged eae those odd oroled Soxebaed wow @Rel 404
te ty head eld met of vterss qadde om enow seeds as sommaem
“ heempionaemiomamamaathb siete ctcbiicaroaniciubin ose: Sissi
Riis ; ena Yi eR SR 2 4 ne ween Rats ae fore) |
; cmH, Pw Meh ese bo Gs MM 8 wees} ‘es
Aa eae om) en ERIE
eR RE sail, ere wae wh ah
MI 9. ND. Se wire t
TA SMO eA YE ay Re itn) ie sh cs
Ee ee ee ed ie
ae ea MP “an oe wai sew ion
Dae ae ae a ana al Maen AR! Anode way i wns
~ N
|
138 + 31268
ALICE G. i2VERTHZ, adminictratrix
ef the estate of Jeanne 5B. Leverenz,
decessed, APPEAL FPROK
Appeilant »
} €ImcuIT couwa?T,
Ve
CGoK COUNTY.
PRASE La ROSA, Fs r 7 A, LC A §
Appellee. ko / Zi fete VU) “x *
?)
4 “— # e4ct UU
Mi. JUSTICN BAKHES DELIVERED THE OPINION OF THE COURT.
Jeanne 3. Leverenz, deceased, for whose estate this
suit was brought under the Injuries Act, wus run inte by
Gefendant's sutemebile and killec.
The deceleration contains five counts, charging
Feapectively, negligence (1) in failure to give « warnings
(2) im operating the sutomobile with side curtaine on; (3)
in wilfully and wantonly operating the automobile, and (4
and 5) im operating it at an umreagonable rate of apeed.
The court teck the wilful and wanton count from
the jury. Om the other issues raised there was a verdict
for defendant.
Shike appellant has assigned and argued several
‘Bileged errors, in our view of the case we need consider
only the alleged error inetrusting the jury at the close
of plaintiff's evidence to find the defendant not guilty
of wilful anc wanton negligence.
The accident took place after dark «hen the streets
Were lighted from street lamps 2n¢ stores along the street,
Sbout 7 o'clock p. m., October 2, 1924. It h=ppened on
| ‘Seat 35th street between “inchester and Sobey streets.
Dae! ofeallogga. 2% 94s te et ragease
gee RS ee ates i EPL
Onda viet sg vs ont a
: we L Lace bel wale
_sTayeo nt ee uorEIso as guavtaas, c eam mn
Tse rt nef eat a i a
ssoilig ae — ovtacsaot
gxttguad® ,ataerso owi't 24
earlier 8 vig of omptist om: —_ Saree
(2) ye detsdait oSie atie OF $2 o at (
ay See ‘secitontons ‘edd intents einotasw ere
| , euas na 35 Sr “
Laravon dougie hit Beigives vad sunktogqs efit
sebtanes seathadiaaadveedinegiersspiertae yay
teexe Bo
sole odd ta wins ond “gubtowidant ne Mi
wakes J0m snabeotes elf Bek? ox ponebive etvatiabatg |
soomegtinen: wodnew ons Iwthiw 4
stootts adi mode #icb ratte eoaly Hoos emebions edt ad
sisorse edd gaole asxode bee vant sessse mort beddght os
we beasqunt ££ .MOE QR xodedo0 cam 0g Motote F uo
vesoorts Yodo" Aas resusdont? mowtod goorsa 082 ts
=Ze
The south side of the block was completely ouilt up with
business stores. The north side contained some stores and
eettages and some yacant lote. The little girl's parents
lived in or over ome of the stores om the south side of the
bleok, somewhere near ite middle. She left her tome and
eent out om the street a very skort time before the secident,
apperently te get some eundy with a penny her father had
given her, and was struck by defendant's sutemebile while
he wee driving the same weat on the north (er weet vound)
street cer track. Ho witness, net even defomdent, noticed
her ¢rossing the street, and the testimony dees not definitely
@isclose from which side she come. It tended to show, we
Ghink, that she came from the seuth side.
Plaintiff's evigence vas te the effeet that defendant
“was driving st the rate of 26 miles an hour} that the street
Wae clear from curb to curb st the particular point where the
‘@ecident happened, ond that there wes no other pascing vehicle
OF car on the street te ebecure hie vision of anyone leering
the sidewalk from sither side nexr the plixse of the eccident;
thet plaintiff wes driving in a ear with closed curtsins;
oe Be put on his brakes at the moment of the impact and
the ear ran some 56 feet before it stepped.
We ehall net discuss whether such « state of facts
panes tates wanton end wilful negligence ae defined in the
feliowing eases referred to im the briefa. (People vy. Toohey,
SI9 T1l. 113; Jeneory ve Cs & Ie Tre Coc, 306 id. 3923
Eeople v. Falkovitch, 280 id. 321s People v. Cambaris,
(297 id. 455; People vy. Schwartz, 295 id. 218; Jones v.
--Eeomer, 235 Ill. App. 362; “und y. Gsborme, 200 111. App-
. 47.) But without repeating what was said in them we
ae
Atiw qu sited yLaselquos sew Avoid ed? Yo shle daues 4
fas aetede amen sewkednen ebie dtxem ed? seotage cosuls
nonoreg a*isks ef922i oil adel ¢uscay cea boa sonadé
end 29 ebte Aswon add ao Hot6de ott WSS Love x6 i he
ue emed ved Pek adh eistte dt <o0n vredeenne «io
ciushhops edd oxoReG auld Suede Yusy < deotts ea mo tuo
ad woddet mal yuwg 2 d2ty Lome ones soy’ OF Uhl .
ei isw olidametion a 'gashastob WW Mores aaw hee ot ae
(oasied “teew xo) sien ast wo duew ame od? gatvEth' enw
_beotton stash te Oye $08, seeaaaty, cae
sant an 2 AER at ven |
watvsel sqeque te meinty sha. exh ge Detain
itwebioos od Ie sonig ed? tess ebbe a reste ee Laem:
secksbuun beubte diby 40k 5 i eae
=_—
ets
« Seine Sah
tes Songs ext Yo dasa add So amload ak me da aM 4
abnaqetn ed oneied Rca 3 OB omen anon ane 1
hiceed Ba ee kt _
agsat Ye state « dows sedges vovould tom Lada oF
ee, ve Sat bea os Pe ae
edt mi bentied sa conegityen Ishiie bus gosaaw cates tte
TROLS. & Theta sg
eyndeet «v efases} satoted oat at ot boxxetex SEED
ares ead Ey Sree Meth eae cat
“eae \ ET 00S guredeo ov smi “1808 qu ofST a
Aus #eta wink? muted’ fetta Sa
ov weds mt hee env inde gabsenges dwosiiw taf
-3-
think they fully justify holding that it was a question of
fact for the jury to determine whether the speed ct which
plaintiff wae driving, being, a2 it wag, at a rate which
the statute makes prima facie negligence, together with the
éetailed circumstanees, constituted wanten and wilful neglii-
gence as defined in those cases.
The decisions relied on by appellee involve miinly
eoneideration of the «eight ef the evidenes ae te wanton
end wilful negligence, a utter, as before etated, not open
for consideration of the court im civing esid instruction.
‘Ags the judqment must be revergec fer such errer and
the cause remandec for « mew trial it ig improper for ua te
@iscuss ct this time the weight of the evidence im the exse,
and ummeceszary to consider alleged errer in giving ether
“imstructions complained of. :
REYSRGRE AWD REMANDED
Gridley, *. Js, and Piteh, J., concurs
~
-
deteigues gun’. sey ® ahha awen ma
10 nelzapsy a env 32 tats paddle X2bteot yLten vet?
dole te booge oats sediede evexmcere 4 = ae mf
5 eri ee J
ae, cdetell * dal ane. $2 aa. ete TR ‘
Pee
Tinton eviotnt setiogan ul pn habkos oom
I a wer
seca ra Mis
“ ye, ae
2 Wy supe eat Je aka! wre oe me ng ve
SER £2 Desa Faas i saint: aon 1
a ee cpae ee
dy Se ry @ Ritsy & hte. eee eS wt hart ae
t23 Bi Pa Tos Se eee Eee ee Bae undaae te; tom
. Sas
te S eae
Oe RE SP BS aE. Reais votes page
180 + 51230
JOHN SRGTVOCD,
\
Appellee, APPEAL PROM SUPERIOR COURT,
™ } COOK COUNTY.
c> y am | A PA at
ROSE BODINGTON, ! DPAATI.A. 644
Appellant. x
\
MA. JUSTICH BARNES DELIVERED THE OPINION OF THE COURT.
This is an appeal from a deeree in chancery. The bill
was filed by John ‘eetwood and his son Tracy, but as the decree
founc thet Tracy was not entitled te relief, we shall refer to
John ‘eastwood oe the complainant, and to the bill emly eo far
as it involves him and the defendant.
| Ag amended, the bill and the preof im support thereof
are predicated om the cleim that ecomplninant ond defendant entered
inte on oral agreement for the purchase of certain real estate,
that she was to, and did sadvance $2700 for him om the initial
Payment, for which he agsigned te her «s collateral for the
Sdvancement ten shares of stock of approximately that volue;
that she took the title in her name and holds it in truat for
them} that she has repudiated the agreement «and claime that he —
has no interest in the real estate ami that the shares of stock
were given to her as a present, and refuses to account for the
dividends thereon, er to return the stoke
Phe prayer of the bill is that she be ordered to return
tne steck or pay the fair market value thereof, alleged to be
on Apria 20, 1924, and asks thet she be decrend to pay
| ," ia due from her.
The answer denied that there wos amy such agreement
igang
eTAUOS MOIRAAGS BONE LAWNGA.. ie Pees art pene, veal OU a
|. RRIGD BOOo » ee Me ae ey 4
“0 bd hel b he | eee geoROanE
* nattoagh
. ROOST BO, Worms 8 REG AANA ORTON
sae Aceh
Liked et | pun 8 ‘a enns ee a Y mo isoqas sp ‘st abst
voxnsh ate se 286 wpa toa aad has boowtee! ‘mot we ‘bedtt
ad uote basi ow stakion Be bons hone som naw west tus auld FE
et ow mo Lad wae od bne «enamiatgnee ed? ae beontee” m
: ‘stunhae tb exe ban mid a0¥! wud #3
| rootess ) seoqque nt ‘door oats nea ihe id ,dooaone Et
boreday faadmetel hte ‘susakotgass asta tole <= prvicreee =”
states Loot aladves Ye seato ug one 0? snoaos'ty9 Lato me °
fokseak od me mei sot COTES oomavbs b&b baa 4Od new ote 4
ont 293 Laxedatios a» ref of Somgduns oat Mohit wo? 00
btwder sous YLotominorags ‘to ioode to eexede wed Smemoons
wo? Qauxd at 4 @hLod dae oman cod mk o£8ht oie xoot ode 4
get Sanat mashoto bes SHemeotye osd bedatbages wok rte Soutd
Hoote te amsorle add tas? Mme odedne Lows oad ab souvent on
ora sot Smarr oa os stouhox dae asic | 8 aa xd co novia ‘
eooda oms suuidex of 30 anooneds- abate
Masset 0% sovedae od ote todd of Lhkd ade . rowne ont
wa 09 bested od ade sats ion heaaid “ase 108 ea #0 ot 4
an ti + 0H wort oun ett LOT
tememnongs tome a ane erent souls bonnes xowene oat | ie
ran y Ue
-2-
and that complainant contributed any sum “hitever toward the
purchase of the property, and alleges that the same wae pur~
chesed by her with her own money, and the deed taken in her
name. it makes mo reference to the stock.
Before filing her answer defendent filed « demurrer
to the bill, and while it was pending beth parties come inte
court by their respective counse] and entered into a stipulation
te the effect that if complainant could establioh her claim the
property should be sold, and cach should reeeive from the pro-
¢eeds of the sole an aucunt proportionate to what he had paid
upon the property, o¢ should appear "from an agreament subse-
quently to be made or determined by the findings of the court.*
Thereafter the parties come bafere the court and
Fepresented that they were willing to go shend upon the
Stipulation, and agreed in open court that pleadings should be
Tiled later to conform to the findings of the court upen the
evidence,
Upon such understending the court proceeded to hear
@vidence and efter the same was closed the plendings sferesaid
Were filed. thereupon the court enter«sd the decree appealed
from, finding, among other things, that the pleadings had been
filed in pursusnce of the stipulation. “hile thie is not
Strictly correct, it being an oral agreement, it ie important
Only os confirming complainant's contention ef such an under-
| Counsel for appellant ¢well at length on the contention
« & different underatonding. “hile the procedure was irregular
n
confusing, we think the case must be considered upon the
® raised by the pleadings and the evidence material thereto,
oy
aid buawet sevedadw mus YRe bedudxtoee tnaminlgmog todd
“Tig sow mon odd Sok? Gepelte baa ,yoreqen ods % onde
a9 a mosey bos om dus «yemom mwo wed aetw ned Ye be
hts odd of nonore ton dm eosam 41 ot
- womniniand a belt deoha'te tewams tod eat LS BBO yy
agnk eames ‘pebdaee diod ytihmeq wow dk ‘etide bows etihd oats
molialngi¢a otnk houssao ae Loaweo owhicegany theme ed ts
ea? wisio sad delidates bLeoe PRN LALgAOo th deds sontto. i
ng ond mov’ ovieoot SLueds Howe or) bios “ed: nboudn vies
‘Bhog baa. al deat ‘oe ‘sbemohexeqon smcen ‘ta. Bs ay wis Ye af
wondins Sienoonye es mars" ange stone oe | wegen porn
*, ¢aeo ots ‘te puri bert? ‘ada ve deakmsos oe ‘1 ‘ohee od 02 cits
de ha bt dis .
fem Saves ods oxwiod wanes eoksr0q ‘ond
, Nhat Why - Bove
‘taba boain oy 09 satin xow vedi dass botueno
ake 3 ~ Noth tees i a f
“ed biwedde wgathootg gual ‘su05 rego a aoerye hae
Rois iy i P. ne
eats noe ad ad bg pala vas oe mxo'iase ‘be
BN ‘Ake Ratio a ed wi
amin Mah siisoo ods subseaverobas adem nog 9”
bieworete agatoooty ony ‘hone Lo sinw omen end % tarte ae oom
bekasqge oeiend ot? boradao Pxweo odd oqusxe:
goed bast Wpathosty odd tend cwymedd todd ymome a0 ‘atin 5
‘yon ob Sno al lb dal dt 9 bl mt
. ane beni bowedtanen od ‘om eane ond ante yo vamtautnoe
wit todd gobiont woo att
sei ‘tnkvetem ‘somnbiee pn ban aguthesty edd we Seater eow
<3-
The decree finds that John Yestwoed and defendant
entered into an agreement to purchase gs.id réol estate, that
he gave her said stock as security for mking the initial
payment on exnid property, that she has reseinded the contract
and converted said stock to her own use, thet the morket value
thereof at that time was $26563 that she ia in posseasion
of the same and shouls account therefor.
The decree ordere defendant te pay cmplaiuent said
sum within twenty days with interest from spril 20, 1924, and
costs of the suit, and in default thereof an execution isoue
therefor and be « lien upon such stock ani the resol estate of
éefendant.
The main fact in controversy was whether there was
eny such agreement. The complainant John ‘estweed, sogether
with his son Tracy, and the latter's wife, who claimed te be
present ot the time of the conversation about the purchase,
testified there was, and defendant and her dsughter, whe claimed
te be present and that the others were not present, denisd there
Was any such egreement, but testified that the etock wae given
te her in accordance with hia previous expressed intention.
Ye deem it unneceasary to repest the conflicting
testimony on the subject. ‘“hether there wos such on agreement
OF such « gift depended entirely upon the chanecller's view of
the Credibility of the witnesses. 4s he had a better opportunity
than we for determining their credibility we find ne good r eagon
for Questioning the correctness of his conclusion thet there
wae such on agreement, and that the stock was assigned to her
to be held as collateral, and not as « gift.
‘ Complainant did not seek the enforcement of the
-
Sa | |
tmanwehed dum hegwtan’ lol sodd, woah? oerpeb edt
hadt ,viotaw deat bhne sovsoing Of domseetgs Be, otat. yao
Saksiat ont pabdem 162 wiseoen ae doosa blow gee epeg
beredaee extt bobakonan eat, gle Saad a | Rise.mm dapm
onler ¢ebiom off Jodi ewer neo tod at Meota: blow bodsovmes
ekemwonem: wk ab gale doe POLIS wow mda dad: oa) Yeas
os eitoven a, demenee: da ee Dem. ame, oni
eka, PoBia lye Yee. a8 Jeshaetes guabee poxaph POE 0: wide
dns oPSCL OS Ling most seoumdat at iw aypd waows, Aigdiw,
| fitend mokiueRs wo Rowweds diuaked wh baw Shwe oho to wt
io ohodae Loox add tao A9Oie sown souN MARL m od, hw nOReR
enw OLOKy “Tedgede wom YoOxeroRtnos wh took wham, amt
‘sentdenad shogwtes stot goonlelqueo asf .. steno o1ge stows:
cet Oo Dothete ogy p@tiw x tnasded add bem, a yoant op nis
salon: suls dap ch, deeemmamrenve add Ro mms ‘eds to, ane
oredd heknod \tueeerg dom sree wtbatde! sith Bae aw’ duone | '
recs ane Reade weld Paals ‘bokthded tye thomeTgs ow "
OTE beowecche wmetvone eld Mate vonsixeoon me itor
geek toa eben eds Reoget av yiteaaoe one thvmeen: ana, vi
rr ee er ee es ae tos kdue ene ty NE
he wet erp Loam whe megh Chor keme Sebabged: rte: wi
vettemanogao aetded 2 ho ee wd s SOon ams Rw. ‘wetet to et Rae seas
aaah hows oat Bek wie leona 0 honey ee | woken
ade
alleged trust. In fact, the proof shows that he was in no
position to do so. He never in fact peid ony money of his own
for the property. Sut if defendant made on agreement with him
of the charoeter stated umd received the assignment of his stoek
im pursuance thereof, ond refused, as fouma in the decree, te
Garry out said agreement, then appeliee was entitled on demand
made im opril, 1924, Glther to have the stock reissued to him,
OF, On her refusal to reassign it, to reeoive ite mrket value
ae of that date.
tt is omly upon that theory thot the decree, under the
Gllegations anc proof, could rest. Sut it dece not properly
Geonform to that theory, umd accordingly it must be revereed with
directions for proper medificction.
The proof cees net show = conversion of the stock. It
#0111 etends in her name and im her posseasion sa vhen delivercd
te her. The bill seke for ite return or ite market value. The
decree should provide for its reaevignment ond éelivery, or on
failure thereof within » specific time, thet she pay the value
Of the stock ae “greed upon, with interest at five see cent from
‘PFil 20, 1924, the date of demand therefor, together with the
amount of Gividents received thereon. The execution, of the amount
decreed would be o lien on any real estate defendant might then
hora but it should not be mide by decree a specific lien on the
Feal estate in question.
‘ Agoordingly the decree will be reversed/with directions
tor ite modifiestion as herein outlined, ench party to pay his
’ a. REVERSRD/ Otte DIRRCETOMs FOR
MODIFICATION OF TH. DECUEE,
Yo #s Jey and Fitoh, J», conoure
a Kh aaw on Sis) avedte Yoong oat fydat at fewsd bog
neo etd ‘to YSnom Yas bieq toek et tover wh Joe ob ed woke
ais diiv Jmomeongc ae oham dnabuetes ta bibe’ eesiiadese wall
doote ahd to teammjicen odd bbvosoy bas bodwea teseotad wy
et qohtosb od mE Sues? ve \doum tit dwh PLodtedd Somes
tans me WLETae vew selivgys aids yimamewtye “bias oad 4
sakd Of bewnstor Moose aad evad a7 xedede VbheT (LRA £1"
euLire Seatinai: @tt evteoo: ef (th ayiaaest of Laewter a8 we
Nea, yetton dean
ahs: sehen .seamob odd Seale “xootd seals ogee yhmorwhodT Ov Oo
-‘¢kseqena fom ened Ph Su@.daex Siueo ytoong dae emodtag
Holy bowzeven od demm JL ULymibxooen bre .yroods Sestd emia
| sR@ERooL Thbem segéeg 26% asks
21 «deeds ocd te motegerneo 2 weda dom geod teomqoeds oy jy
howviled saw gn meteoncog cod mt hae aman vedot-abaate |
steley dozen gtk ve sivdes 292 xo atee Shed ant 9a
ng ‘TO gereyhLod saa dmoameioueet ath aot ebiverg. ALwoste. 9
autor alt Rog ode todd gomtd oltteogs « aidstw teoredt oss
odd sissy NoulteRod ezeloteds beamed Ye eap edd sAROL 90K. J
jagoun odd Yo mpisvopae ait moored? bevivoes, ehmebiykh Xo ts
anit oayte tiynge ted otatas Lees yar am Gell am oo bhwow, bos
add 80 PLL OTLORGE 6 vorsed WA pbem od soe bivoda ok fae.
Liens eth tah qBrestrngi
ce A MM ae a ih
wt @ i i aa, @ inne 1 Hg —
ead yen SH? WO WElTaomeraom
SF ie a) eo ase Rania <u! deri aly EC abies nein
q
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eM ve on settee ane, Dome, sloted
BH Baas
A]
Val
162 - 31293
‘FEDRRAL TRUCK COMPANY OF CHICAGO,
(a corporation)»
Appellant, APPRAL PROM MUNI ITPAL
Ve GOUT OF CHICAGO.
JOHM J. KIRBY, 3
Appelice. » ee A a
oy A A a | pe , £hh. OB
ed KE Lelie UT
Mi. JUOTICE BARNES DULIVERED THE OPINION OF THE COUNT,
| Plaintiff begam this suit in replevin to obtain
“possession of a Bock autemeblie truck upon which it held
‘@ mortgage. Defendent Kirby, the mortgagor, having refused
te turn over the property, leave was given to proceed in
‘rover. The ease was heard without a jury, and the court
“found defendant not guilty. The question prevented is
“whether the finding and jucgmont are not contrary to the
“evidence.
‘ The mortgage wes given for $1600 to sacure part
of the purchas# price of « Federal truck wold by plaintirr
defendant. tefendant’s affidavit of merits does not
the mortgage, the detention or the value of the tack
Kk, alleged to be $1000, but claims he has paid the
indebtedness in full. The only isaue of fuct,
The uncontroverted facts are aw folloea: Plaine
ft & anleeman selivited defendant Kirby to buy a Federal
ek ond drafted a memorandum of an order May 2, 1924,
bag gee CR SNe i a eee? ee
hice PTI a RE I? gaa BREESE om:
ag ; Me Danae wo ae Hs
eAetocew wore ‘eas se “* eee MeN car aire a tieetedea” *
a inate GREENE BE ORBAN TR” oa” supa Be
; BEE MA GOS 9 Ts: IER AS Gye EG ka —
«TaUCD MRT AO MOTEISO ORT COE shia aia
a pet all
#
remot ant me bosnonsn sist oa, ae atm fae
‘ oo, Balt. OE erinee fon, oe, dromponl, bine ye
i a git | iy SA:
- sgatnte, en adie pig ip spe ahone
ee nab adhiom 26 shwebhihe atinshaa kal, | ant aa
: wre - teed orna, yst@, as bach at enonbesdocnt opep
nad mo amb mbshe yes Gar ord eeten aa 4930'bo
aXe TAME M, } isitinaih
yishte Rabin LL sh Re pn Tg ee dts ia tuea: Caadilicsoaaas
7 ! momen pt
ASRS af eX anon, 9 0 su ne mc
ae at to ey ‘aga, am of
oke
on ome of plaintiff's blank forms, containing among other
Conditions that it dw walid only when accepted and signed by a
“duly suthorized officer of the distributer,” and “shall not
be binding upon the distributer until it is aevepted in writing
by the general mnager or general sales manager."
This order was never nccepted mor signed by cither
party. Five days later, May 7, after « vonference by the
agent and defendant with plaintiff's wmager, another order
Containing the same conditions and atating thet “there is
no understanding, agreement or representations expressed or
implied, not specified herein, relative to the goode herein
Ordered,” wae duly accepted by the manager and cigned in
plaintiff's name by him ao ite monoger and by dufendant as
purchsser.
The unaligned order designate: the price of the truck
Ot $5574 and allowed "10% fleet owners’ divcount, $537." No
euch discount was contained im the signed order, nor tit Chord sees
The unsigned order was apparently incomplete for 4¢ specified
Ro terms of payment. The signed ordur previded that plaintirr
Would take defendont's Mack truck for sale, if poasible, $1000
of the selling price to be applied on the purchase of the Pederal
truck, and a separate written agreement wes drawn up and signed
y the perties to carry out that arrangement, whereby defendant
was to turn over his Mack truck te be sold by plaintiff on
- eertein terms, ond was to give his note for the eadd $1066, and
4 _— mortgage on the Muck truck te secure the anme, to be
when the Mack truck was wold om the terma specified,
cette geome sidibuian 1 06Ht6S daaded a'ynbsmbely te ome |
& Uf hengle Rew dedqeve« mode whee bhiew ad oh set ops Lae
gem Lfngda" beta *yuoguebtdede, oat » xHOET26, poaizeds
ete stack. ae
aM
*}
os
oc
gatshue.mt bedqoue ab ch Lkdnw xodgetades odd GOge' sam
nt "sragrome ooisn Levenng 10 ropenem Coney ea
‘ote ud Somgie eos besqeonn ne WRE sow TebRo aha sy ih
ods WE sbavteriion » corte «f Yall (6NEL oud ontt ws
tebe gaksaar regent atiisuinte dt ke tmabsue isd ome ae
ot exotd” Qeald gakiada deem atteldibaon omee pad gatatate
* bnawetaxe ‘neto Ld ndmacouges 1) cHpaseTge. ‘pak basdetobes
bowen boas ons’ od svideter aléiod sotshooe et sald
CY piattuhe” nine opemaee OHS ea besgoboa bub ane *?baaen
aa “Pavia tod il ‘bes hevannal ‘ate! un _ be ne
i a Joa. Bae game aa UG: » xbanlle:
domes wit 26 BERG’ old Sa¥Ray¥ben “bite” beeep tee Pe
om Stee ania texeiioe ‘Your? ROL* Wiwelte baa ateee
eboalvods we “on etobxe Hemgle ont at boniadneo maw “smabb i
hotthseqa 9k tot sto rguoont — ? saw wise beaut
watdmkalg Jad? weblvery tobs6 ‘bony anayaq % 3
oonne” aaeibieg ti Yetbe! whY tena aba i ab (a2 be
Lovobett aati Ye onlin oid’ nb hapaonno w iad wit ree’ ute
inonae'toh dovede' tnembynaten dons et a
te LIbwhleG ta Aton ae ot dows Zonet’ fs Oe
han (Q00L9 bhve eld tor doen ated ovty Of saw Das « en
od OY jeanw Ody wikwoe Of aoWtd aplit” Vid ad” Sbagtion Loaga
bok ttouge auted oxy hk bLod waw mMouree” Mohit watt iaate hig te
atom oid yug eee ne “we |
viowat Laxobst old Yo Gokxg owadotig oft 20 tag we ‘deal
, Ht . a a
The note and mortgage were exocuted. Credit we aise given for
a Union truck for $1250, whieh defendent turned over to plain-
tiff, and for the balanee of the purchase price defendant gave
other notes and 2 chattel mortgage on the Federal truck te
seeurc the game. Being unable to sell the Mack truek plaintiff
petursed it to cefendent. The final papers were executed June
6, 1924, anc the Federal truck wow delivered with an invoice
@esignating the price therein ne $5169, and erediting defendant
With the $1250 and the amount of «dd notes and mortgages.
; Tt wae admitt+d that he padd towards the purchases privge
of $6169 the sum of $4105.50 (including the allowance of $12
for the Union truck), thus leaving a balanee of $1063.80, as
Claimed vy Plaintiff. It was also admitted thet the emly differeee
between them wos whether or not defendont should be allowed the ao-
@alled “fleet owners' discount" of $527 acgording to the uneafgned order»
It seeme too clear for argument that inasmuch ae the we
Gigned order waa never accepted or signed by plaintiff or ite general
Manager or general sales mnager, sa eseential to ite velidity by ite
Very terms, ond both parties wubsequently signed « maw order which
Made defendont no such allowance, and according to which veth
Parties eubsequently seted, the unaigned erder had ne vwolidity
Ghd defendant wy his conduct 4s estopped from asserting that it
a. The entry subsequently inte a signed contract with
atrecent terme ds absolutely inconsistent with defundont's
« “hatever the previous megotiations ond oonversetions it
‘ timentary that they merged inte the written, signed contract.
ne , Dertiee contemplate, os they did here, reducing their
t to writing the contract ie not complete wntil 4% is
» 195 Tli. 423, 428.)
i
«0% movty ova naw hex? spetuenan 9 geen egegtren ban, of0n ¢
~ainig 98 pave pamend dmabmn ted olen 9288, id Fry gry re
20% Lt) ed
wong, daaoms ah oot, marly 384 ott mM, eT Teh, A A Re
“sar Lasobes mts mm sgt Lo fae 0 ha sett
Yrtenbale downs pupae ald ioe a8 obdlan paket seme i ~~
ostelle inhsoans Tey BRMGIG, Sant oat stmabgored of, am ais’
ookaent, ma dghe benwvihed gam downs LaxodeX os ba,
sucha ton yakstdore, dae, .CDLEG wo ade sng sokwe. aa 2 hie
aogendion ban andos bine 10, sem —o eset, tf f
aokrg, onmdenin, ods nbmaned bheg od sale, begs hmin, 1s
O8RLS YW epmaverin, ads yatstont) bani ae mm nea
an sblbegnOLd Ye penning p padvand nuts 9 (homey MARAE p
aonexetish yirie ole tate bod dimbe eke 8 Rad ‘Uh
«og off Sewella od biveds tachueTod Jon xe codieste wow: ow moe
<robto hampton ode of ambitoo? au aeenwe = -
wis oae oo sinecemnind, satin at inate o0t pee AE yy «
faronem att, 20, Tibserely os Ponamybe 7e kasqonns Teves :
sok yd Wthdgow ath at Lahaeonns 20, An aioe Lovonny 1% %
ghebALev on Soak -sqoTe Gcmghem AEF g ho kee YY
ak dekt ade tamen aoe? boaesa, wk Soucoaoe Sa em
Ln wiht deantson, borate a elms oh
atinahwa tod 4 dv dansadunmomh hogKleews,.
bh emp ddwaurrnos bn, ean bsabtogen, swekyerg, nt
storeenos peomki abil es oimk begiem, Wer i ap
ak ah Laie oben > tent tects ot ae 03, gem
(Od a Gh Ath BOL a ghee £99 #2 lies
The court's findinge were unquestionably contrary to
the entire evidence.
Defendant ¢id not deny in his pleadings cither the
‘detention of the property or ite value, The chattel] mortgage
provided for possession by plaintiff upon default of payment.
The evidence shews, so far as the mortgage om the Mock truck
to concerned, that defengont is im defeult ef payment, and on
his demand therefor plaintiff was entitled te its pesseacion.
The court, therefore, should have made « finding and entered
a ®@ judgment in trover for what was not paid om the mortgage or
the note it wae givom to secures
MS The valance of the indebtedness for the Federal trudk
wus eoneeded to be $1063.50 if defendant wae not allowed the
ata discount of $557 080+ Gut this suit ia net te recover the
balance of such indebtedness but simply the value ef the eon-
verted property eo far ae plaintiff hoe any interest in it.
Taat interest was only to the extent of $350, defendant having
pete $650 on said mortgege, and been credited therewith on the
note it was given te secure. Consequently the court's finding
ia judgment ahould asve been for plaintiff im the sumeunt of
3 ), with interest at §¢ from Mevember 11, 1924, auounting te
41 SO. There will be a reversal of the judgment and entry
1 dudguent here for the eum of $391.50 with findings of fact.
phage eren PIMCIBGS OF FACT
AND JUDGMTNT HERE POR $391.50.
Yo Pe Joy and Pitch, J+, concur.
od YIewinos Lideratinewpan wow mane atomwow at
| rr wnhtio symtbuatay wks ah yo dor Naty ganna K
gent res, Lod baste ot ee ee
steed to siwetoh anqu hintale: ee Mokananwog OR bear
nae Sout odd mo spAQe som Hid sa wed Ow (ewode oomObRee
te bee _imeneg “te tkuotoe mt ef canbie bob: bostd) + batexoom
ee at | eet of dolthsne sew Msntelg totomete? nas
es matey. foegon OkOREX & oben owed diwede erotereas yuo
ee ee anon: tom gow deste <0 sovOR? mR a 30 yf
) ae : aetsaee OF awvig naw at sto
wos? Sevwhot att. NOt unambasdenms odd, we oomaiad ash one
eh pre Sin ton. mew saab td AE OBehOOLG od 08: hobooaes
oat covages 22. tom os vn abele gett... ONTEER Ye tmwowe
nttee gale Re oaher ond Vigats ced eemmberdones some 2a) oom
_s0h Gb dooreteh gm sok DiLimtolg.en aX en eesogerg be:
patkead daaheo toy .OBCh ke deedan ols oF ie naw soonedmd
ald no deiwereds aodkdexo 1a0d dan ,ogapeuoe biae wo GEHP
» RABE wee al Chane seTNeE 2 meThS cuties
te Smate ot Ah Mibindele t2) aoad ovat Dkworts smeemgom,
OF nadimrcme 4280L it codoowgh gost Re tu fuountak atte 9
iD Aue Mokemmg bet, sete 20 Leateven 9 ed Like orem 00
sfont To sgaknads, dt ke sain Yo mun one vot ovo Smenggh
7 7
itt ete ih in et Ne aaa WME OTE, OCR
y SH TE
CE er ee
Wi Lis tine LA SN RE Fak i RRA BERG, ape AES balay nanan hi
Padma: te, Ri EMR, 0 aml Se a
PINGINGS OF PACT.
Ye find that the property in question was
mortgaged to plaintiff to secure « note for $1000,
on which the sum of $650 hoa been paid, that the
. of 2350 and interest to date, amounting in
@1l to $591.50, remains unpaid, that said mortgage
de due ond defendant ie in default in the payment of
gum secured thereby and that he has converted
property so mortgaged, ond thet ite value exceeds
: sum 80 remaining unpaid.
nie
at wa sae We
ao wae Bie
GN 2 AY ae
ee 3 ii
a
177 - 31309
KAROLINE BYYALEC,
Appellee,
APPRAL FROM SUPERIOR Gout,
vs GOoK coUNTY.
en weeAEeG, 2 4 Ae hee eee ‘al
Appellant. ) ett lA. 64
MA. JUSTICK BARNES DULIVEARD TRE OPIBION OF THE couR?.
This is an appenl from an order holding appellant in
Contempt of court tor his wilful failure to pay hie former wife
$986 in compliance with the deoree entered in her diverce suit
ageinst him. rom the praeeipe recort before us, 16 appears,
Se recited in the decree of diveres, that the parties entered
into an agreenent to adjust proporty righte and alimony whereby
the wife wae to convey to the husband all her right, title and
interest in and to certain real estate, end waive ond release all
Fight of alimony, and he was to pay her $900. The decree ordered
the conveyance, and that he pay such sum in satisfaction of ali
Slimony, and also $250 for and on account of her solicitor's fees
ane expenses in the onae.
The order was entered on the rule to shew eause and
defendant's oral testimony in answer, and finds that at the time
b rule was entered said eum of money waa due under the deerce
UMpaid, and that defendant hod ample fineneial means to pay
‘sane, and held him in eontempt as eferesaid, and ordered that
wont oy ;
aT RIGO MOLLE BAY TAA , " ian mits
oC TROOO BOWS a) de
FORO A. 1 iN BS bi ; ws
Paty ie
ooo sare wy BORING WaT CARVE wae serra
aN
* Ph aia ag
at Jnnliogag paipied : whe Ha moet “kaagg 8 a ot , ake pe
; YON i
otiw samxe? whit we of ormhbe'? iythiw aha 192 suse te omnt
twa eorerth xust at boxed eoxood oils abn comstiques ate
ce Ky
aN
aStHaQy® ak hd euoled brows oqheantg old ont ld dumt
eee eter oe” a
hortesae eg beg wat tat eonovih we eanpeb ode at bethons
ytesede yromkl« ome odsig ds qi r0q07g textbe ot “imengorge 8 ‘
use ofeid qtoydu vod thm tacdused ode ad yoraes oe enw ante
iia waciies fee ovkaw gas etnies not abatses oo bee nh ton
herelie vowel aff 20005 od We ot nsw wf oaall omombte Yo 2
iis to moltostsiice mi man sows Yas ot saald hae ad
aoe a'toctetion tal to smugoos | 0 bas <0 case vee Ll oon
+ G680 walt mt apamegxe
buses oasino wade ef olive of nO boxesae aaw zobt0 edt A
ants ost3 to Sauhd abakt baa etowania wit enoutsacd Lane a*anaba
goxoen wilt soho ouh uae eonom te sue bine poxneie saw ober
Yq oF meinem fatonsntt oo Legunes bast tuabae to add bite «Shan
fais bewohie bas phiaeeiela os Jagan 3909 mh mabe phot bas oma
wie me peddhumon bas Wekxedn oat ys yorew estt moway |
we honest agieg wal anode atdnom xte poooxe o¢ som Lat
o temparyeg
o2-
The clerk certified te the recerd aa per praceipe
“exsepting mittimus which has net been returned and does not
appeer of record in file.” ‘Appellant's counsel urges therefrom
that no mittimus wee issued and that his client was taken into
eustody om the order without process. The assumption hae ne
basis in the record, and if it had, 4t has no benring on the
sufficiency of the order appealed fram or any question of error
in the record. If appellant was taken imto ouvtedy and without
proper process he may have waived prevegs, for aught the record
@iscloses; and if he did not waive it, hie remedy is net by
appeal from the order, the Validity of which would mot be affected
by an improper method of executing it.
Appellent’s only other polmt is that the payment of the
money was conditional on the wife's exeoution of the vonveyance,
and that it does not appear in the record thet she executed erie
@eliverec it. Appellant has not seun fit to preserve either the
Sffidavit on which the writ was dveued, or the oral teatimony in
SMswer thereto. Yresumably they weuld shew compliemes with the
decree on appellee's part and would suppert the exprese finding
im the order that the sum deereed to be paid was due at the time
of the entry of the rules ‘uch finding presupposes eomplianes
with the order on she part of appellee, It cannot be said that |
‘Mere 46 not 2 sufficient finding of facta upon which to base the
order, Finding no error in the rocord we affirm the order.
APPIRMED.
Oriaey, Pe Jey and Fiteh, J., concur.
saheeons “OG Ra Stoney off of Hokiidxwo Arelo bra
jom veeh bas bowtuten moved tom wat Solaw noms kee ‘pak Sqn.
mor ronan? semen foumeo w' tani teggs *sonh ab hemiyadatal to cage
eant nodes eee amohte wbst Sosts pata bowaed ee ‘mat on oa
on earl mosiqawane, ‘ett .asonetg tuesdi te tab2e ons 0 Wein
vata to gatined om wan ah aha OL BE nasi 5okdeuwe ont ak abe
te x%e Ye nakseonp ete me me holavaqe tebxe, ast 30.N nate
Swosts by bas ‘YQotemn aomt aeshes maw égailegqs shane od F
Wiooet oft Mumate KOT caueowTe bevkew evict Yon “we Witoorg rie
at deat at yiomet ebd od evtew ton S20 ont “h2 tnw totaal
betootts ef fom biuow ie tate %0 Acad cl bietadl oat ait a
vig yeah Wl a Se i
Be ah A ae gi BE th
domeQeveiey veld TW metreoeRe a MethW oft me r’
nein Wiens ite vail Sibodt id at ‘adeqei HoH cues VE Vilkd I
wit) eiiste viene of sh ‘nea Yon aod mahal air: stk 8 peneved
oe
wih diiw sometignos ‘weds biwow Sai edie sow
gata aaotexe ents drowgans bivow ‘bas fag 0 Taube a : von
tale and gr oun ge pang od od goes oe ‘oad. teas ‘xebvo off,
cunt Lge nonoqquners ‘peck’ sowed selwe oat oe eedme: a ,
“ead bhan od sonueee at “obi taqae | be Veo ont ne cohen Os + a
ods ound of dokde aoqn adoot te akon seototitwa 4 rs .
pelenten ti My er aN whe fitik yt Ronee:
o OM |
" »xabro ot mrb¥te « ow breso ‘eal ’
Ke sane dvi Cw eS SRR came 5 4 ge fe a hia * ‘ wk |
cat i
Sessias: ¥ peel iueire eM ape ofl
enasine ot “soa tt hae bee ge a Ge.
* hae eatin wan hee Of ee ee, ee
eters a
206 = 31337
EBAY G. HOoY,
Appellant. APPRAL FROM CLIHGUIT
Ve
MORHIG SLOTT,
Appellee.
Tae
A a
MA. JUSTICE BARNES PXLIVERCD Tax Pe: on ae oy £%
This ia a pexsemel injury suit. Plaintiff, while
COURT, COOK COUNTY.
kr Re et et ee ee”
crossing the street, was rum inte by an nutemebile driven by
defendant, knocking him down, breaking two ribs, bruiving
him in various parte of the boty, apruining his ankle, knock-
img out three teeth and lsosening eignt others so that they
had to be drown. de was confined to hie bed or room in much
| pain for nearly three weeks ond under the eure of « physiciame
i The greater part of the time since then ke hos been nerveus
i and weak and unable te put in a full day's work. He incurred
Ae medical expense of $51. The jury allowed ae damages $150.
It is urged that the domages are utterly inadequate componsstion
for the injuries received, and that the court showld have granted
‘plaintiff's motion for 2 new trind. We concur in the contention.
on ie too manifestly wali-founded to reyuire diseusciom. It in
i: 1l settled by the weight of suthority, and not queetioned here,
t an unressonably small verdict, as “ell aa a grosely oxeesaive
eo is subject to review by the courts and should be sat aside
® new trial awarded in the interests of justice.
Appellee urges that the plaintiff was guilty ef
n wk {ethe
Pu Seis. LO) SS
Rese. ve SS , COLE om col
lia ve itll vie — o ints
“genta moss amen ‘st 5 sone. toatl sine 0 baa ee ea
-Frin09 000 «P08 re eae Pieciehis Bar syeslvlnts
a ») eae i ia" pee AA a Rar Ae
.. u ateticeggan ros
» AE. EO SS ae
at camevnrne tea ‘agrrens By
“fi + NPA
tute YTRMeRR TS Shaw gb Lameeteg oa Pe TY ena
qe merke oLitemeene ne vd oon eure aew .foerds Gt patanly
gate head gotta get gotvogtd. inept wit yaldvont (reebewte
~doomi sodas ald gminiewgu hod ons Th atucg auwheewinl at
Lo NOt Aadd om wiwedes aiyhe yuineeool dun Meo2 bonds Iwo an
Gx mb sees 16 had ube OF Deskinon gow alk attended od Oe
aibehii & 2G oon ed? sebmw bee axoer: petri ylesem net Ate
auerxen ased ard on madd couke enh? esd Re tug cos nabey, iM
_pevnwont of «asec atysh fish « mb tem of aiden baw teow a
bags aagonnh ag bowsle. must wat, 4 S85 te pareanieare:
etna Oven, beets. Pum9e ott todd dps, gharkeope andi a me
Mokinethow gis Hh TARO. #” ahakes, won &, 5OR, tebe om, Pehaad, ' 7
ah $h sBoiveuoeds wxhypo% oF dehaNoInLhow YAdeothnsm eed ak f
cOxad Anat comp JOM Onm Xi Lvedsue, Yo. dighew odeved pekteou £40
evivorexs Glave « so dow, a géoidrey home. qhdomespone ‘tte ts ‘
thtas soe of nteede tas efteoo ad vw webwou od ‘toobdue ad . a
soodsam, Yo advoreda2 ay mt. kooaemb kaka’, won i 2a
Jo wiley ane Bikemiate oid dad ogre i , q
tery negligence and not entitled to any judgaent.
nat was @ question of fact decided against appellee by
he jury, and one that could mot be taken inte considwratian
7 the question before us.
Yo Pe Joy amd Fitoh, Je, voneure
G
BIR ae et. 98 pa hihi 2 deh i ater
oink s cntgthak ah Oe aR apy Soe, (aie ida
muamnen Sent ay: ah ee eT ma: ‘iat
, SORE enh) Ne, et oe aoa:
DUES eipliauta ae Send Paes dane |
Seah ot pieces
wkend iw OME: siaiaen baal vida r°
~
6
Ql4 - 31346
THE STARR PIANO COMPSBY
GAIBS CORPOR TION, APPEAL PROGR WUNICT#AR COURT
Appellant, . )
} GY CHICAGO.
Ve
MOPRIG PISHUR et al., \ 24 Ay A ; a!
Appellees. Taiiek ile © lia Ae
MR. JUSTICK BANMRS DELIVERED THER OPINION O° THE COURT.
This is a replevin action brought to recever
pessescion of a plane and phonograph which were eriginally
bought from pleintiff by Joseph Fisher, the father of
defendant, “no lives with the defendant.
The evidence discloses that subsequently, Mereh 5,
1925, Joseph Yisher filed a petition anc schedule in bank~
Tuptey snd did not schedule the piano and phonograph in
‘QUestion; that complainant's agent called on Joseph Fisher
‘on June 19, 1925, with reference te an unpaid balenee on
‘the transactions and to renew the mortgsger, and asked Joseph
‘Fisher to sign the new mortgages presented to hime Fisher
“wate Morris now owed the goods and should aign the new
8, which Morris did in the presenes of hie father.
. equently Morris Fisher mide payments uncer the new
es, both im cech and by his personal cheek. Seeing in
% «a demand was mde upon him for delivery of the
Bn tele. The demand not being complied with thia suit was
“Brought. The balance due om the piano, as teatifiec to, is
q ” 63, and on the phonograph, 162.57.
Hoth the dufendunt hic father textified. Neither
Sa Wt
DS aint
foe <AsTe tie Wane Zaman |’ } tis idl DiI ROTM
LE a 8 0 ROR TE am
ewe aps iB ee a eee
[ js O At } b ~ t a coacey ot
‘ oH fide RUSS
eRHROO MY 10 Ho INTSO wit aaaavresa omictae mortar ‘m
“erone% Of ddquord WOReOn alvolyed nwt wnat cote
Ulaskpjice wrew doide dortpenedy baw enaly 6 6 sokesoone
to cedset odd ,todelt dgotel qa Vrkembalq woxt degen
ctonbaetob afd thw eewkl ecw ytoabre ts
ait sho weet +Wsesnpendus Jedd avaolonks sonublive en?
wiined mt oLwbedton baw mol¢ived @ baLt® cadat™ dqoaot .8ee
mt sqorgonemy hae gaalq ont Siwvedos sett bab bas yosqe
teekt dyoeot ‘me belies tmeae o* omambatqmon dass tmodsens
ao wonnkad bisgus me ad epxwuetos dt tw a0ek ver ant
dgovot bodes baw gavgogatoa ant woot as bre suokioanna
rorted® smiet 0% hotawaerg aepancrem wan 9d agte of a
wont oad mia bkwoda baa aboog oats homeo won ‘atv bis
sxeedtot wkd ko vomocotg ond wh Sb lest sotite soon or
won ott sete ataseyoq show sedelt atveol xhsan e swell
ai gated ceeds Samosa td yt bow duce at ated «aagageel
ad? to yxevigen coe mtu dogma wham eaw bunmed ad. 2%
now dhe abdd dotw bohtquoo aed Yom hash oat .atestul
wk Od bebtiiand ee 4yomalg odd ao enh obriaked okt 5 Oat ’
FE 8NG geigarqomontq one Ho bas bts .
tanlt2o% .dektktned conde? vhs saahanteh -_ agen
w2e
of them contended thet the whole indebtedness had been paid,
and admitted that both were present when the con signed the
Ghattel mortgages in question. The court remarked after
hearing such evidence: *It leoke ae theugh this man (the
father) woulé be foreclosed, now, from denying thot there wag
& transfer of title there to the rom, and that the son signing
the chatte) mortgages thers establiehed him the owner.” There
was @ continunnce of the hearing, ofter which Joweph Fieher's
schedule in bankruptcy wae introduesd showing that Joseph
‘Fisher dic not schedule the property 2c his own. Hovertheless
the court, in disregard of such evidence, found for the dofend-
amt and entered an order of retorno babensdo.
It ie aifficult 46 understend from the reeord the
Sheory of the court's decision, unlews it was influenced by
the contention of defendant thet plaintiff's agent threatened
action under the prior mortgages unless he signed the new
Rortgages. “ven if he did se it did not amount to compulsion
Or duress. The only proper construction of the evidence is
‘Shat the mortgages in question were valid, and under their
terms plaintiff wee entitled te possession of the wortgaged
property on failure of cefendéent to comply with the demand
made upon him. | |
a The judgment is reversed and a judgment entered
| here finding the right of poxsession of the property to be
dm the plaintirr.
REVERGHED VITH A VINDIEG OF PACT.
Yo Pe Joy ond Fitch, J+, coneure
i
t,
i
vik ood bad oeambeddwbmd eosin eds doit? denmyenos asa |
ate hoomie aos ald wadw inweore ot9ew died sold ee 7
xad'te bodxamot diwoo ofY .maLansiny mt wogagezom £
oat) esha ates sgaroats oo eteet ar” iblbiaee: one alone
gow stone toate aay’ moe «wae «bone Looe od il ronae
ailagts son oe drat hine yO ood a8 wsadd. onthe ‘to x0
ereds “.comwe ods misi bodetidadwo exes sopestvon fostade « *
otroteet sigonot dondw Yed%e vamkzaed odd Yo sonaun inoo
Agee dasa pankiorte benwransat aw wtareinad at oLubed
eaoiutexoved sAmo elit mo yOtogeMG sa, eLabedon, tom kh wade
~hewko® od 40% Dawet sooawnive dows to damgeTekh sb Pcie im
pbuedest presen te “alte mr hpaodae bee a
oa tit saad aaa’ bande sohny ahd deuehstettai’ Bhs 3x i
. ooateu La maw as conten, ssoisived E Me dr dy ut Linsealge
i we
bdo tnage atrazomiatg tusda snobs Yen, Xo mosem
won ons bomate act sola sopenyzom cc 23g ead oda 90
aehssaqaoo 8 taveme son ot ak =. bkh haat . nev) esaenes
| at somebive: odd %0 wo tow? sn09 woqong yaa vime pal eeees
mhedts soon bees sdkLoy orm Boke wony at & oes Batti
se Re ike WE dig. eR Bah OW,
boyead zo ait te fe tueosnod os beks Lane boat fe
vis iS Jy
mca ods ashe eee of tsb to® is oyulne:
re We cole a
hie ona . owes
xasne ~_e s be soorowss ok 4 ang fo ne toniany at 4
“ee af erage, aly 1 Motes eh 29 aetgte vst
eee Teas
ee Heh) By ‘a1 xi , (eS sic esa nah
or 1 gua A “HYE® canaven
, ip Ey RMN MCA DB RAE ch PREY aoe
rervaee ane Fa sidelail ntl fae Whine |
‘nye, y Pi eh i wae £ ui re: SA an Wi. Bi ¥ us a 8 tas Ae Mar + hig i at a ast He : 3
FINDING OF PACT,
We find that appeliant, The itarr Piane Sales
orporation, was at the time ef wringing this action,
. the time of jucgment, entitled to the right of
‘ on of the mortgaged piano and phonograph in
R26 « S1b56
Ie HE POvitigs oy Jomy Niac,
arrested at the suit of
Resie Seniw,
Appellant » APPAL PROM COUNTY comrT,
. Ve Cook SOURTYs
PHS SSOPLE OF TH: SPATS OF i \
ELLISCIE » 6) A 4 Ts PA om
ApPPe lee « pew SS 26 O4 ft
MA. JUSTICE SAKES BELIVERY THE OPANIGH OF THE COURT,
Appellant, belmg held by 4 Saping ad sabisefaciond
issued of 6 judgment against Aim in the Gauperder cours of
Seok county, filed « petition im th: Sounty court for dis
Charge wader the Involvewt Uebters' ast. The petition was
@ismiseed and appelient woe rememdied te the eustedy of ths
sheriff. .
Tha firet point andes on thie appenk de thet the
Pecoerd does net disclose thot wsliea «49 the gist of the
#etion in which the judgment om which said exeoution issued,
Was rendered. The excoution wos iswuse upon a Jucgeant
@geinet appeliant im an action of trespass yi of aria for
SR aecault and battery. Ii de the settled lew in this dtate
that malice is the gist of euch an action. It wee eaid in In re
4 ks. ve The People, 141 Ill, Apps 682, that 1t is settled
"daw im thie State thet malice is the gist of such an action,
:. ting verious ¢ases. Hence we need mot enlarge upon the
act.
It is urged that boveuse the action wae begun
t four defendants, «11 of whom except appellant were
eed out of the osae without am amendment of the
evtmues 099.
“TBO 9 hl b BS
_ tt ant ° moines arr ciamevaaia oma earnest .
4 MUR si it inka’ ba heh. Hh
ware. iaeneinin ot? yenk texeddot yewvtéied ott wohew 2 Agier
ost %s wosens edt 0 bebninmes now smattocan dae. ge .
“est te goby sult aow sons souka vookonth ton “op 08
abies we lgarosxe bbw sho behe me » han ous se : tv ate anh 0
202 2 ieee ae ae sided atten Be a 1. gee atlenge
odege wdst wk Mo boktsen ade ad IT prodied ae tLwaw
8% if, ML dkeo sow VE .w08se0 no Nowe Yo sedg odd at eodtom
aoitewe wh oh deals a «GG o ffl TAL Epeyensd i y :
aged was nolan oe cunn teat 2 tepau « at = ei
osur Sactogge aysoxs, awry Yo Los yudmabietoh ewer unto
eH} to tHeminsau nv dwosd kw oane ode, 9 tm pun.
«Re
declaration, it ia imposcible to avseertain upon which ef the
Gefenionte the biawe rested, und that, therefore, malice should
have been spevificaliy set out in the duclerstion. There was
omly ome iaeuse in the ense, aemeiy, whether there was an
Becauit ani battery vi ct armig from the charge of vhich malice
fe implicd. (Solomon v. Bucohele, 127 Ill» Appe 420.) The
character of the «ction in thin respect waa not different from
& Guse cf trespuce ¥1 St semis Weeause of the use of the word
“enge” in the comuencemant of the declaration characterizing
tht generai mature of the action. Under our statute éither
form of action would be appropriate, (Seas 36, Preetios acte}
The failure to smend the declaration on diemiscel of the other
Gefendents did not change the cherscter of 14 on chuxging o
tertiouse set sgainst defendant, and if there wore/cefects
of procedure in that case they are net cpm to imoviry in this
procecding. The cositeniion that uy reason ef the dismisesl ef
anid defendcnta the iseues wore mot jJeined os to the potitionear
ae not tenable. :
tt is alee urged that the oheriff f<iled toe endorse
On the gapisa "who peid the bowrd” that wae adyameed after
petitionscs’s arrect. «ny irreguisrity in thet respect is net
Open to Guestion im thie groeesding. The omly ivows before
)
the Seunty owuurt vee vhother malice wea the gist of the setion
im the casa under waion petitioner vas arrested.
a t& is also urged tant after the three defendants were
he
Ni |
“eG out of the cacew amd 1% proceeded as te petitioner he
mo motise thercof. Beither ic thie « question epyen to
Mi
By «|
Anguary im thie procevding. 1% appears, however, he wae
uae puna smoktonakged oda me tue ‘ae ; i" q oa ‘3 43 Mead.
tht dow wenale gomboste + cLomut joie: did mt ieee
Hob Laat dnbiin to eyindo oats te ee ee
mast duazo¥ihe ton caw! davanos aide a ads wild he “woteouad
beam out 30 eam od! ke managed dh ssuapicininguitit gpreey:
“aeadto oouaoee so awed “sao 0 dtr ae one ,
obs
qadée: ed 2 Kean tew2 co wodSondtovd vite ‘hana
& getgacts ee S2 Yo xovon'tady ots egrate acai
“ase Db\pvow ones 22. baa \ shaban teh deatnge ‘to siete
adda Gi vrdwots of mage fon ore yaa ouse daaha ak etna th
to Shupteate ents 8 Hob aes ede) stokieesnon ost Ugnt
— wid oF ea. rT Seon prow wont dred a etna A
euTehae ed DOLRoY WEbxede ods toad weirs ey bes
OTs Desnavee aoe dad “daned ents ste git’ ea
fon Gi donyeer sae mt Yhintwgertt wei Cddedal Urdedeei aed
eugted evant ytee eat manure’ a shaliposepsy os
i 0 debian tk en ‘adie vidi ‘i new bee eles, tt
exow admchae tos send itd tut “Vauld beget basa fcc yen
oF mga rabitagtba * rir ta ‘ep’ bilan) Sonesta ull ak
ee ia ot ‘gat |
socio tnecneunan er) eaweshd Re 1h ion Ds te puna a.
- -owmuos ys hevapawige
~ ta
I LI a ee
o3«
It if algo urged that the wpeeial finding of malice
Was necessory, citing cases vhere there was a diversity of
issues in sone of which malice was not the gist of the action.
Rere there war only one count im which auliee was the gist
of the aetion.
Counsel also arges that there was @rrer im the
action in whieh the judgment wae rendered in granting a
remittitur, and in giving om instruction to the jury.
They are coliateral attucks upon the Judgment, and are
not subject to investigation in this proeecding.
The judgment io af¢irmed.
APP IRR De
Gridley, Pe Jo, and Piteh, Jos Soneure
ee) é rt base
ie ANA Wb ARS ay oe,
‘gael Ree
40 - 31637
PRTROMELIA ZONCA and Peter AQHUCA,
Plaintiffs in Error,
ERROR 76
¥e
SUPERIGN count
JOORPH OPSADEK, a minor, by .
AUGUST OPSADEK, his father and Coox couNTY.
next friend, and BD Jonson,
Trustee in benkruptey of the
estate of PATER 2OWCA, bankrupt,
Defendents in irrer. p
PAA TA CA
(ee 4 dL eofhe iS “te A
MR, JUSTICE BARNES DELIVERED THE OPINIOW OF THE coURT, Ly
This writ of error is sued out te reverse the deeres
seing for went of equity a bill of review. he bill wae
ft to set aside « decree enterca by default in a corediters'
“ba brought by defendants in error against plaintiffs in error.
t Relief ie sought by the bill on twe grounds, ~ that
there is error apparent on the face of the reeord, and fraud in
» the deeree,.
; The alleged error on the face of the record congiate,
as claimed by plaintiffs in error, of findings and relies
ward by the deoree in the ereditere’ bill suit “thet de not
spond with and transcend the allegations contained in the
a and supplemental bill of complaint in the creditors’ suit."
ether words it de urged ae error on the face of the reverd
Telief wag granted by the decree that waa net prayed for,
| the eause of action under the supplemental bill did not
Bt as of the date of the filing of the original vill in the
dd ire’ euite
A like queetion was raised in Legner vy. Hoover,
ong
bts RSE v Coe A i ae
: Per i |
‘We +e oa
HO ity hints te! gS ay Pats, i
‘ ee ek , a,
ver eee “ sen
ag bas casi what
~eapeo sor:
eyrnves wood”
pe gh i 4 Sistas nid yy ta
sh tat h vet 9 orkvan Fe
corovh maid euxtvex es swe hexe.eh tonKe, 20, Aiaw: whe
ase AtaE od? .welvet Yo Aitd a yinye to dmaw co? yeten toon:
etONae ah attidahalg dankans.1 rer%s ae adasoueted eli
heed + aebeweny ort mo Litd axis yo ddquen ab tekken
ah buone't bev Sms ,kegoen ad? Te seek acid we sneteqne: tone a
soon00d etd va iva
soretanee oxeoes ade ke seat ‘odd a, TOxTD. bogelin ome
Tob les fee sgekentt to «texte. wt attisaialg we sade
cere eis due” thaw Liid 'euedihow; om? ah. eosoob eae eo be
wid Hh Setthed see anolingoiia ahd orooaneTe ban athe
eae
318 fll. 169, 174. The court eaids
"It is evident thet the court had jurisdiction
of the perties and of the subject matter, amd where
this is so its desree will net be sect aside in a
proceeding of this character on the allegation that
it is not susteined by the plesdings. Srrors whieh
present questions of provedture amd not jurisdiction,
and do not reach the atter of the right of the court
te hear and decide 4 cause, go only to the question
of the correctness of the court's decision and are
mot open on a bill of review."
To the seme effect is the case of Vyvexrberg y+ Vyverberg, 310
Tll. 599, 693. The record not being open to review upon such
® ground it is unnecessary to compare the bill with the deoree.
The fraud relied upon is thet when notices of asking
leave to file s supplemental bill and for default of the Joneae
for failure to answer the same, were served upon Jankowski, one
@f the counsel for the Zoness ae defendants in tho erediters’
‘suit, he informed coumzel for complainante therein in one in-
stance, and their agent in another, that he no longer represented
‘the Zoncas, and in disregard of that fact complainents in the
“@reditors’ bill “acted froudulently and wrongfully in not giving
‘Personal notice to the Jonene.” The fects 20 relied upon do aot
‘Support such « conclusion. Appeoramce was filed in thet suit
for the “oneas by said Jankowski ond one Sryseszewski uo their
| ‘attorneys. They filed a general demurrer te the bill, which
Overruled. Wo answer was thereafter filed, and the said
m tices of later procesdings were served on Jankowski personally,
the other attorney having departed from the city. The fact that
te take care of their interests is immaterial. The
nee of om attorney employed in a matter will be imputed
fe
”
thise dures adf 100k 20k vail BL
settetsetawt bok gues odd posts smobhyo aa ae sil
vaedw has , totam sootdam ext %6 bite GLI Log alt to
# ab obken Son od Adee ooneoh att eacek oh
fede gekdagetio aff ae tedsonada Bhat 16. /
deidy swests ssgalbaota off, or baggy
amisotialvst ton bee orabsoerq to amoliaswo
eka off to adgeax add te redsem ond anger. Je
mo lIeowp et? of Yin op eating # shhoeh pave gepul
O88 Pes moleboed ativwen eds Ta 1 7 ts pa’ ye ae.
: ‘eons a Tappa
Agen wage weivex ed ego wisi ga PSOE
“ sGougeb ould AYiw LLid oct otngwoe Of Yrannpanitn
ont ile” iy 0008 wt
i —— nll a
gakves. te aoa kion wodw dusts wt nog bukfex buext ed? - 7
sane ade te wikwke’ co bale OLE Labuvae tegen ‘sett od owas
ome owas mga ovuoe one dint fe set bo
‘ates kberk wae sl atraheiwted ee Gaowee ony wet
“apt else nib ARboods sitinnlitie ti" :
Dest ecaneniars chip nnt Wh, alt aban Why? tbl lan wa
eed AL advandetymey Jon? Soxfd Yo brcegeroth mi hal ano t :
Bilvda fea wi Yiiwiahow bee uléaotubmart begee Le gies road
son Oh NOqM BOTOX OH otoat ONT "eenniol ade wr ObLVeH L ” 8
Shue Soult a DALEY aay comernugg’ “mo kertoiee » Moma eels
kote 6s Mewoxsagel wo bas bewodnet bie ed asonel olf
‘Mekdw (She kate of vere d Tocoheg’ o pee qo? "aye
hiiea G9 donde OO xed teers eaw cowenn bt! Del
sULiomaereg Mawminit ae bovewe Stew bgmbiesvotg thon” te ane lie
Gand teat om .Ydio vad ade? hetingah harwh eoneI¥s kemde OE
pronabiasinnasdians rr pris isderbt af
<3-
A se@licitor heving entered hie appearanee of recerd for a client
gamnet terminate the relationship umiil there is a withdrawal ef
record by leave of the court, and the relation ie not terminated
without such withdrawal, at leest 20 far ae the epponite party
in concerned, until the end of the litigation. (Erisger ve
Beieger, 221 I11- 479, 434, and Gesee there cited.) Aw suid in
Regner y. Hoover, eupra, im order te gramt relief under « bili
ef review on aecount of fraud, it mast show that the complainant
Was prevented from imterposing « cufenae by fread and without
Regligence or fault upon hia part, ond that the durdenm of preof
is upon one charging fraud to establish it by elear and sstig~
Peetory evidence. “hile the claim of having given counsel for
@omplsinants in the erediters’ suit notice of Jankowski's with-
drawal from the ant Woes positively demied by those to whem ne
@laimes to have given such notice, yet whether it was given or
Rot, complainants in that suit had the right to reeogniae him
as the counsel for defendents therein until he was prepexly re~
lieved of hie duty by an order of court. Sot only were the
|“ S¥ermente of fraud insufficient to susteim the bili ef review om
that ground but they were not substantiated by the preef in the
Gaae.
The court was amply justified im cismisalag the bili
| for went of equity.
| APPTRUE DD,
ae
: Gridley, Pe Joy amd Fitoh, T+, concure
| ay
ih
2 \h 2 oe SP ere i. ae oe
Base anh GAL
ont
a
inohle @ yor oxese ko oomoxceqde alt bowedas ‘palwéd sostottes
he Lewartanka bev & ol writs £ktom, hanno keaton ‘att etontenet tenn
ootauteted don oh motiaken asié acs, hued call * » Peis w sree
Brreg sé tnonge ons an tot o8 baobh de haunt !
0 ROR) emabsog hd kh oss Ae bus ond ren sDosxoanee |
mh bine ah (sneate erudd aeaam ive ere ate ‘EEE, £88 azonet
Sitd a tuk Wehlot saway Oo tokO th eR ONS wy nee
takecguce eit Gott woe team 22 ghuarh Yo dawoond me wabves |
Aedt be bus huort Ud ecawked @ gubeoqnedad mark heteorent
towry 2a mend of! dott ban «tung okd age deat me comely
wading Ane Ygoke ud Oh Mudidades oo dansk getyands exe noqe:
ei Leumicn avvty yatved te micto edt oLkd «semobkys ‘exmie
cddke qetauesionsk to dalton tse towethhers oat ai sgmantntom
Oe mangle Gd ones ed! wodven ehnristoog maw ouse alle mond Lien
30 NOvdy ane th cuddodw soy —ooheen some: aevig awed, of ote ha
wld an tagenet o& glgin asd bad sham dod Hi saeantatqnan 9
ot Yesegety a4 ast, Kado aleteds ebaadasteh 20% (Semmmen 88 :
aul onew Yio BOT oduMeD TO Tobue ma qd yeh ede 19 sows
Wo wakvon\"R0.ALRd i mbatame- os ekg Rewer ‘te sansars
afd mb TOONG Old ye ROG Imosudy sam exo, “~ tad aman 4 Z
ey Seals yd gin ul aide Phas fit BAe ip wile “eee
fhid set aadeadmao at suxataoet, views ese nso Masi: a
; EA lake ne
ERMA Ce ee
ewe ppnmnaniiniyes sang de bom si +3 awete
ee ear ae ee OR aa Ee
iw at feeigaw ‘omen ti Aa RE Sonne ae
Hi , tivated aS
Se Re MP ee ee ee ee
Po we
aw
ae
\ ~~ won Fy
Re coke is, a & \ F
\y™ * \ Ve Nar} <i) Ys
9 - 30862 :
JOSh7E B. RABAN,
Plaintiff in Srroy ’
Va
BRROK TO MUNICIPAL,
COUR? OF CHIGAGO,
PRARK MARR and ELLA BARR»
Defendants in Srror. MAATA eat
es “$F GF A AZ I
eae hs OLMIS ay St |
MR. JULTION VITCH PaLIvY ART FHS OPINION OF tHiR COURT»
Plaintiff obtained a Jdudguent by confession fer
$2252.05 upon dx
; efendante’ four judgment netey dated April 10,
9 Sutherizing sueh a judgment te be sonfeseed “st any tine
er.”
he: The notes were payable “on or before biaty months
“after date." Twelve duys after the Judgment was entered, on
‘motion of defendants, secompanied by an affidavit of one of them,
‘BB order was entered staying the execution until April 10, 1929.
Mine Gays therenfter, a motion by the pleinticy te expunge the
order staying the execution wae overruled. “Meimtiff’ brought
a)
Writ of error, assigning as errer beth of such rulings «
® defendants have aot appeared or filed any brief in this court.
The affidavit filed with the motion to stay the
fom sete forth that the defendants are the owners of
Teal estate in Chiavge, which they acquired on spri}
‘BO, 19245 that cs part of the purchase price they executed and
@liverea to tne grontors certain notes, payable monthly in
s the last four of whieh ure she notes upon which
t wae confessed; that such notes are seoured by a trust
oh
} sas thas de i eine ey yey , wire ae Bie f ie di cig saunas
a nam
som oTH sey TATOG
‘ERO BCE: Bpe ...
. yxagueo set WH WOTMIRO IHF snavEsna OREN: my oh a
We gw ora a woken %
en iN
oli aint “ye vos i
nar penises uns Pe
20 ‘nobseoiaoe w aaa vt . Rc ae oat LONG ag Dd ay v4 ol
cs gu oa" bnoustznn of peer ee to
pai ats ERS pie b
* eae"
exanos Wake santos to fern otdaqen one acu ae ; care ite
iste shotwane 9 aaw saneg at ots soate ay ov * ;
saat % Sl te shea ts an e padanqscaon « nn x
eek ‘ot Lana seas wei nsexs oft yaiyede howedas cio
su NE eS 83 ie’ ois te
ist aR Sah Pen tay}
axie egies es ‘Vibemtale ons Ra ok Sam a “ts barre :
i" Hiprer ay 49
arquoad vanemis -sbotuzove Baw stoke wiyete sae
ge pa ene Se rater ey | CaN
Rae af rs
_ ehh me ROstanee HF # sani
fas butaonxo add wolaG ‘cnadoron ots a py eo afi fenr :
mi vient, sidayom «sever miei teo rena ode head gpoica
fawsd @ yd bovmoes oH dali: “ows er
ovet admebueteb doit baw ates to Rarran mg )
interest, and complied with #11 the terms and conditions of the
trust deed, and were not in default in any manner at the time
the judgment was confessed, The «ffidevit wtates thet the notes
“are by their terms not due and payable until April 16, 1920,"
Thie sffidavit and the notes aud warrants ef attorney appear
te be the only evidence that was heard by the court om the motion
to stay the execution. So far as the record shows, ne evidence
Wes offered or heard om the motion to expunge the order staying
the execution.
URGre ® power of attorney authorises the confession of
& judgment upon o note “at any time hereafter’ a» judgment may
“Mavfully be confensed at any time after tha note is executed,
‘This is so well settled as net te require amy extended eitation of
“Muthorities. One of the wnrliest caves in which it wos #0 held is
the case of Sherman vy. Baddely, 11 tll. 622. There the court ocon-
@trues ouch a clouse in the warrant of xttorney te be a contract
‘Biving the erediter the right, “if he chooves to assert it, of
having a judgment entered Up &t any moment for the amount of the
@ebt.* the court said further: “The defendant has no right te
‘Complain of the judgment, for he deliberately euthoriued it to be
POSES Of the jJudemer
23 t no he makes Having « walid Judgment,
the Plaintiff wos entitled to an execution thereon."
ae
es OE Me brih hf. eb
qi It ia trus that courts ot low exercise equitable durir~
dterion ever jucgnents by confession (lake ys Cook, 18 Ill. 383;
Fell v. Huston, 152 111. 239), and om a motion te vacate such
mt the question is not whether there are errors of law,
" ut whether *quitable reasons exiat why it should not be opened
#0 et in a defense. (Mumford vy. Tolman, 157 Ill. 258.)
49)
anes brie antred odd ihe dotw baliqawe Sata senenete
pda tO anole!
ton exew bas boob 4
oats ede oa tonmem yn Be siento m sh,
woton oft dacd aosade diveblita ot. sbenaetaen gaW aow,¢amgbet a
QC «On hivega “thgeas akdaye, hme awh Son sidine ‘ahead ‘Wot
qenzodte We sonata. bem evden. ond lesa ghvabivae ota
" emoeyetm
¢"
aksom add no suuon out eH piped eww, gosta oonaniee dae col oe
gomobive fit avodin hievet oad mae wt foto igri
guiyede xebto. wild ewgeugxe os mo Sem oe me rand 19 OREM,
sch iphliipmionnen. ual aeoracginky Renan SUR ameneanes -
to selsge aes ant: ngnisadinns saeyoree To, ROMMEL ated! oy aan
neem drempbut, a ee awned ake NAM, a! wine 9 ecu enone
aeene: ud ober edt Totten Bake WE FM poasotnoe od NAEW TO
& aokinthe ee a 3m URE WER PSL BF POR OH paksdne, £how, one 98
at ASed on mnw Oh Mogdead aoves taphhinon a7, Qe, 6810.) snoks bapa
oon Sg: ME ORRAT 9 AD 9 LE LE 2X ci, 0 9800
Honicemag mi od OF eennhs Ye deer aNr: on gpa ony
an aghedewnna 08 sonond9. veh 3A*)etstnhs. aeldoatbonn: ot oot
oct Ne susome edd wer domo tae te ge honed anna #20 aby
“od: daliphs oat sail snaeaeted edt” scoala’: ‘phew oxen, aa me
od of $2 DOvicediwm Betoredileh ed se%: steompet, oath 20, ainkga
admeempian ly cai xeinn odd te nodiniea hee. oe
ba cement toomooxie at bhbeie sos ai
-giuvy sidaeisge oatotaxe, wad do atsneo Feds, RRR BE BL oo ora
S2Ue #EKh ML gahnge.o lel) smbeno tap <i adsomgomh tor, rons
dower: otacsy oF anktom » ae hae @l@S ofS Lh), | Wa
ewok Woonnerte ors oxotte radiodw som oh meLOGOND) ant 3
potemo we sow bkworte’ 12 lw sadxw enoswew wldadie ne rodbecte:
(.eee of£% COS ompmtol »v pyatamit) ,cametod 2 ah
es
a
‘Bat as the only defense alleged tm this case te that the notes
were not due, while the contrary appeare from the face of the
Retes, the motions of the defendants present ne equitable reason
te open the judgment to let in thet detence. Gvdinearily the
words “on or before” give the muker of the note the option to
py on the dny stated or before thet time, but under the reasoning
in Sherman y. Safcely, supra, the usual neaming ef the words “on
or before is changed in those notes by the lenguage of the warrant
of attorney se ae to make the time of payment “depend on the
Prccure of the eruditer," instesd of the debtor.
It might be inferred, perhaps, from the affidavit filed,
when they signed the Judgment notes defendanta did net knew
Judgment could be omtered upon them at amy time. But there
# nothing in the affidavit tending to show that guch lack of
- ¢ if amy, on their part, woo due te any fraud or mine
®, mtation of the plaintiff, or thot there was any understand«
” or Agreement that Judgments should net be confeaned ga
10, 2929.
Yer the ressomea stated, the order staying the execution
OF DAR AMVERSEL,
Yo Pe Jey and Bornes, Jo, coneure
a ne
—_,
a aan ie
rs Ope toad ede dale wena or attest predate ite &
sigan: ast gurl? wk wom obit wl begotten wameeed yi ott
pele tO ob HO me's wenegge Yedenbmea: wal ALLE 908 doit’
abana! bhiind age om dewey wtmnben ve One te” teen ba |
gate hbk a Pe ee ae 08 Fnoogant” “eats
Per me ee snare at
canst oe Matis gost esetod dager: oad + ;
gomataw ste “eo agmegnnd: Seite Gh sigmatel a“ + becuase
ct ta mt
ines did RORY saodttod (homaita ae te
word der bib aarcinne ih oadom setbmapirt nar ats ott
cel dee seme eae ok male Moga Dore sa: od Bite ta
“ae ao eal lial Bet ace : 5
Bess RR ee USER aa AAS rae wy EAR ae OO ae i sie mee
a BA desea WSN AS i
a a Shyness: nek. wet Aes
a RDN feaah ae Bagh SUE Be Sn OO a
Sy MMR ‘Meee iy ath v Sig a peng :
Pie ay We Les CR I eae ee uecsonine
~
ghER VA orentak aa Woe shang) Niiahihle Mond ¥
296 - 31122
DANIEL JONNGON, LOUIS BPANOPLA
and J, &, @PAKOPLE, for the use.
ef BIGK SPERGPOTS.CS, ,
Appellees,
WR.
TORE A, ‘wry tthe, jiaratanews,
om Appeal of Jou A, ORLIN,
pate
}
APPSAL, PROM MUNICIPAL conAT
GF SUIGAGS,
pa a,
j f@ } q 2G7 X
44 4 A @ fA h @ 8) fa, Te
a
MA, JUETICKR FITCH DELIVERED THR OPINION GF THe cOWNT.
Thie is an appeal Trom oa Judgeeut against the defendant
in a garni simont proceeding brought woon the theery that defendant
ig liable, as garnishee, to the judgment erediter of the three
Rominal plaintiffs, for the value of property ueed in the business
of one of thom, alleges’ to hawe been purchased by defendant without
‘Gemplying with the previstone of the Bulk Sales set,
: In Getober, 1922, the Ascher Rosewood Theatre Company
eased ite motion pileture theater in Ghicago te Daniel Johnaon and
Leute Spenopls, twos of the nominal plaintiffs, and sold them the
furnishings, fixtures and equipsent fer $7000. ‘The purehasers gave
thetr Motes for $5800 of the purchase price, seoured by thedr chattel
mortgave on the property purelased and the leaseheid, Im January,
1923, they borrewed from the real plaintiff, Kiek Gperepowloes, $1800
an gave him their fifteen notes for $160 each, payable monthly,
by « eecond chattel mortgage on the same property.
Im July, 1023, Jenason and Louis Spaneple seid the
) y ond assigned the leasehold te John EH. Spaneple, the third
] of the nowinal plaintiffe, Hy the terms of the bill of sale then
e r ted and delivered te Joun B, Spanople, the conveyance waa made
I, ect te the firet mortgage, which the purchaser agewned and agrecd
) pay, At the same tise, John 3. Spaneple signet, um coemaker, the
notes payable to Gperepeulos which were secured by the
ROLE ‘ me ee
sO swatoroe were as seu ‘
+99a0 TH bol
Spas,
Maye)
were Berte lowes 0 a
‘9 ot is
CNG MET TO AOENTYD Ke CRARV LR vom
pe,
{nabantoh edt tomtege sumagbert a seme fabqgn aia" a iota ba ” ty
drabanteb tude Grows matt none Siquetl antboodorg’ tis att tox «
caqatgud os oh. hewn. errecors te ceier wate a Vian q deal
swesidiy taahuoreh wf hesscioy n9ed ered at Baguette sje ‘aa
tee we tes tai ads Xe, anuntorsy sadkaahts gadytey
hae sonnet niet ot | opae ta ms . eT io titer ehh
a ewe tS ee heey. “an x Hoh nie
esta cast Aéow baw “wPUsalete Laatzon ¢ ous te 2 ont « foes
ove ermnsdertirg ont : 290078, bid 190.99 inpe |
fodseds «chests xe bexiore soekte, ona sho targ sit hil ooaas sot ton
2 Cheat ai be weoood nt dae. doeasorwg, eragorg baad a0 o
eoeeh Mitvcumes tale “Mihbadate | fast et wont bos yf
ono 6 idoyag » tlio Pont *aX. modgn sengey Asner
eG nay ey
Paha emus wait a6 ousa tte ‘aah samme, a xe bovrsee
sisi bith M0 “ck end to aumss one « “amuamatg, i tes
aban enw osneyevnoe sit etqanone a aot oe porwr ta hewn te eras
ee bax Aoawron.a senndomwe est ao tie easton taut 6 pit ace ots
segond mortgage,
John B, Spaneple rau the theater for several monthe,
but was unable te meet the pajywente ageruing on the shattel mort.
@age notes, and in Sovember, 1975, he sold the same goode and
ghattele te the defondast, Ohiin, eubjeot te both of the chatter
Mortgnges. John KB, Uoanonie testified that he “couldn't eake a
geo of it, loot big money, tee much money Lavelved in there,
Stepred out.” Te wlee testified that at the time be sold the
furnishings and equipment of the theater to defendant, he made ne
affidavit a9 to hie ereditere ond mailed no metice of the trane-
action to Speropouics. |
it appears that defendant paid mothing for the
“property and the only songideration Joan UW. tpanosle received
‘for hie bil) eof sale to defendant wae defendant's promise te
e@btain from tho Theatre company a cancellation of the lease ond
® reeeipt in full for the rent due and for the Balance of the
“purchane price of the goote and chattels included in ite ehattel
“mortgage. Whether the Theatre company ever gave John i. Gpaneple
@ Feceipt in full dove not appear, but it does appear that eventue
“ally it assigned ite mortgage to one Greabeboum, who fereclored ©
it an4é bid in the preperty for the amount due on the firet morte
@, leaving the second wipalid.
Om Fuly 31, 1934, Speropeuios caused a judgment by
easion te be entered in hia faver aguinet the three nominal
tiffs upon the fifteen notes signed by them which had been
ed by the second cortgage. Woon this Judgment an execution
issued and returned ne property found and mo part satiafied,
in Bareh, 1925, this garnishment proeeeding vas brought on
t judguent.
; Pefendant contends that the Bulk Sales act has no
lication to the sale of the property from John i, Spanople to
ars.
SS
Sadao Laxeves ‘tot tedwndd ant mae “Ei ablldad' a son
“ often fag tasio on oy aaluxsom ataacga ot Joon ot eidanu haw 2
baw abooy ean iad hion a ESS -tedanvelt nit Dew saeton sie
Lotiarts aid ‘te dtod 08 seatdue ,Abiao “teat et ys
& saee 9 ah coo of dads ho St keans otqrmegt it sat .nepante
yield mk bavfovat ‘ation sow oot oeenton ad took ot te
en rlee ed entt edd on. hast, po tthvecd cake on re)
on eham oat iabhuetwh of codeedt ott Yo suomqtupe = weed cin ere
onetd oa te sotton | ‘aa Seddon | baw azo ihens ait bs 0 sven st
sain biqortt a hogy ane ee seit i ied
“Wedd aoh gagddaa blag ye ee bars atenqae ae So be
“nevloten stevamas ait settee Pepe oer thn dad? ‘baa ‘ese
simone o¥dnaban'ten baw Paahieies of tea” ‘we Hid aa "4
haa ovank add to noltattebone @ yanqaoe’ pepbbat ball con't ih, 4
pat Yo bone tad oa x0%t baw ouh shor oxtf ot Livi’ at sqteoes
“fetsnds a44 ah bedwlont afsteasio bam thong elit x0 seit@ Bnd
efgoanas of mek ova ane ‘winauee ‘prduest wh tod wodseat Jogaadt
“us ame beds iwegee wnad of due Sevan ‘You peek a Py , 6%
. + banotae ot ote swodomsort eno oo pe Pin Me Eis yp eg) ae | &
“ ae feet oath no out bow one ott wot eiroora wit at t bie’ ke”
pied ha OE” Magia Beiawes “eat sabvant ip
we soempbut, ry ‘bonis een, 1eeed ni ‘etut a0 00° cue “a
tontaon ‘oud? eit Penhaye tava abt ab been dam ben tat
waned best to hetw ai bod bony, woe gtk
. aptiusexs 8 samba ahs iowa pa ie
ee Si Me Me Le red
sho rintdee “dang on baa awa yiteqetey om
iy sae Pe Ae ee tO
ao © davon sew ‘aalbeboote Taewiia i
inte tame Sak Oh. So er mae abs ie ghee tohe sat A ome
ae Wp ty es ye «el gai yin nab ‘ci Bem a a Boog 8
"9a aon ‘ten oe dei whe wale
A NER FOC te ae SRaen ate hy ae Ca Ae hie es
) ot eLaqnimg® si ute oes ermeaens ott te alas |
the defendant garnishee, fer the reason that the olaim of the
Judgment eretiter, Speropevles, wae secured by the second chatted
mertgage on the property aia the sale vas expresely made subject
te that mertgace. The etatute makes no such distinetion between
secured and unsecured erediters. It applies "to any sale in bulk
of the major port or all of the goods and chattela ef the vendor's
business otherwise than in the ordinary course of trade ant in the
Feguler and usual provecution of the vendor's businese,” (LeSaiie
c0., 28 IL1. 194,) The
Property in question cenetituted #11 the goode and chattels used
fia the business of John BU. Gpanople conducted in the Ascher Rone.
wood Theatre, and such goode and chattels were gold to defendant
"etherwiee than in the ordinary course of trade and in the regular
‘end ueusl proseeution of the vendor's busingss,* It fellowes, we
think, that the Bulk Gales sch anpliee to the sale in question,
Whieoh wae therefore void, 26 agsinst the oreditore of Jenn K,
Spanople, unless the statutory five days netiee waa given te them
ef the price, terme and cenditions of the sale,
Wan gueh a notice given? The resord leaves thie quese
thon in doubt. ‘The Bulk Gales act requires such a notiee to be
given by the vendee, either by personal delivery to the crediters
ef the vendor or by registered mail, ‘he erediter in this case,
Bperepoules, did not testify on that subject. The vendeo, Ohiin,
‘id not testify at all. ‘the vendor, J. NK, Spanople, merely teeti fied
that ot the time he made the wale he did net make any affidavit of
Qny Kind ao to his erediters, We think the evidence on this subject
fis not sufficient te shew that no notice wae given ef the proposed
Sele, sepectally in view of the fnet that hen Sperepoulos wae on
the witness stand, he wae net osked and 4id net say whether he
‘Feeeives from Ohlim os notice of the sale, or whether he knew of such
s
Ne i
"
a os
" penktus shea thrawraee aa top ate baw mR ‘
Honmies mektonisath coup or soem etusate eas eRe
ehiakes) * wasnteud e!sobaey ons te nottvoonexe foun. i |
oh aN % shi ih
ne uso se wa ban snc, nie xeeupng etn R hes ond
ov yaweiiot $i “ynaeniinud a! xohuny et To meksvonsorm Samm
aiotteanp eh 6Len pit of eoliqve pop ace, host vit an tt is
sf mutes ‘to erodibeta malt Juminge an ,higv eink
walt of ucviy sae soften ayeh ov th %
“ensrg ait anges hones out faeviy, totton « i Son
ad of oot on « dome pocket tos wa kat tut 9
endow waist 4 yunrdiod, fanoo0e x wo be eee
seans ef ot tot lowe edt <b bem eblue oft 0
Whe
phany, ott RA pte eaves ton
te divaneee was) eo ~ ha “7 ode oH ohne od mtd, ant $0. 4
foutdun 8285 ao somnbive ert Aika OW aves thnay nial ap bch
beaeqere Adi ‘te cavity ger sohgou om ane wi 99, dente ® pve
to way SoLyowENO RE Made Saxd S90 oy Yo wOEV mh efntooune 4M
an ordain yom sam bab dre hetew shee on Ta i. pesca bw
i“
, , a hi Ae eg FG at i Hpi yy sage ute « Bis si
Wa a Ee ir A, AR pn it po eat he *, sbi lu i ms
gale befere it was made.
Moreover, we fail te find any proof in the reeord of
the vaiue of John bk, Spanople's interest in the property at the
time it wae gold, aiid the witnesses doe not agrer thet Ghlim ree
eelved more than the amount of the Judgment. It vas eseential te
mith, 224 Tli. App. 206.)
Prove one or the other. (Kenski |
There ie evidence that Ohlin anid he received 97000 “in money and
netes” when he sold the property te one Spanuth; but Spanoplhe
testified that he reeetved nothing from Ghiin exeept hie agreement
ae ubeve stated, that when Onlin traneferred the property to
Spanuth, the latter gave Ghiin « check er a note fer an unknown
amount, an4 vhen Opaneple seked Ohdin “if he got enough money,"
he (Ghlin) replied: “About a thousand doliers. That's abi.*
The details of the Gpanwth transaction are not given, An the
Feeord shows that the Theatre company originally seld the proverty
for $7006, free from encumbrances, and as the sale te Ohlin was
Gaede subject to mortgages, wcgregating $7000, it seems improbable
that the value of the interest in the property that wan sold te.
Ghlin wae worth more than the money he reeeived from Spanuth, At
all events, thie evidence Leaves it very uncertain whether Onlin
Feoeived from Spanuth for Spanople'sa interest in the property as
Much ae $1951.15, the amewnt of the judgaent, waloh ie the full
S@ount of the indebtedness te Sperepoules,
| Furthersere, the Judgment is in faver of Sperepoules
for the use of the three nominal plaintiffa, while 4t eleerly
‘Sppears from the evidence that Ghlin had no property in hie
Peoesernion belonging to all three of the nominal pleintiffe. If
. the Bulk Sales act was not complied with, the property im Ghlin's
‘Peeseooion, or ite preeseeds, belonged to John KB, Sponople alone,
- Beotion a of the Garnigiment act was amended in 1923 #0 an to
“Permit © Judgment te be entered in such a case against the
EE tre i ep ty ay a mene rm
Se ae
glance aE bi
YO FraRes ose mk Roong ym Galt oF Sint aw yeevge tel hoy)
adi de yieqor add ot sos wnsel at elgoaags sh mie te wsiae
wo? sid Fas? ootys Son oh asecgat ie edt bus ,biow eee 42 om
oc iei¢newne ow ol steemytat eels We tavomn ode dede ote Berd
SG08 sah .£EL BOR Boke ow tleaok) .nealite ene tO ditt ¥en
hue ydee a2 GOONS hoviovey vt Rha wttdo Veil Woaehive ak eee
_ eheoaed suet qathening? wa oF yoLoKony aio Blow ae deity Mant
fromemtye ale tqeoxe offi mock guiktiten Aevicaes dd. dmay Heo
od YotEYStE ex? Howe Tenet ahlae sew dake /Netese dyed!’
sons te tet atect a to doodd @ WTO ovag totted ont citar
*,vamom sywrone toy ot EA” BROMO bowew whgoane? mare ‘ins, Pou
hha ete etek bewwedd @ teedat the coon (RHO)
eas ak meg fen etn aelpownaand Alonagd eat Vo atlases 2
Yttenem oAt Low gLiasinine gmagmoo wetted odd sade aware htop!
maw BLO Of afoe ef? aa dae ,seomardeupae matt eee, CRORE mi
eiadongad amonn s2 , OGTS galsagotyye ,Segngrtom oF Soe hdd whi
-@t ioe sew tact yrteqouq ome ab Seowetal wir Yo bardave’ ihe Di
he de wott howtwowd of YoRom Set wen? orom Mew eow abe
ALidO ToMtadw Biedusone Yer #2 weveed sombive alae (ated f
ae EtrooTy Ves ak deocetak ot tyonegs cot Asean met bowtie
Liye? ef Mode ,twoamhiot, aah Yo Wearpinn ents aL LEONE ta” ithe
| : seoleoqerees ud anewherdotal ena to Pawo:
rotmoxanogt Io. covet wt oF sanmhet od joxeanectaet 90 Co% |
qleaels s2 oLtae ,eVetate Lomkeen! ae? ofS one oft 4
hd GR YotOCOTY Of bad ALLAO Jedd ogMnb ive” ae moet ated
AD s@Trevate lo Seabsw one lo cout) Sle ad yakyanted aokmndad
aiaitdd ab yduoqoue ond ,kete Bebiques toa mew doa modak Maat, mi
anoia algonaqe sl niet at Doyhoted jeboneorg na tee”, aotediens
8 ee of EOL ah debuome sow toa vnenwe kemee ast bet woleas
ont tenlage wnoe » sows at herotan 0 of tnsmgbuit & tomy
Acie ‘thet
garnishee in favor of one or more of the original defendante fer
the use of the plaintirY if it aporare that the garnishee hos
effects in his peseesgion belonging toe such one or more of the
original defendants, If ne error was ahown in the record orier
te the entry of the judgment, thie error in the form ef the
Judgement could be corrected by reversing and remanding with
T1ll. 46; Gage vy, Peovle, 163 111. 30); but in view ef the ether
errors above mentioned, the judjwent must be reversed and the
@ireotions to enter the proper fudement (Bebulte
@ause remanded fer a new trial,
REVERGEDS AED ARRAN DED,
Gridley, P. 7., and Barnes, J,, concur.
hy te e¥es ve bdo don ‘i aiaiataie
noise buooet 6d Gl dwdilu daw “Koide” dd YE!
Bh Se ak Na ed Y ey dine ai'% earn ih ‘
cad aneenttend
iosnstclonyylong a
as ete Baa sas Reed
PONE:
He SANS
eT ee aE ee sk ie " | ial
ee + bmn. aay alba ai | adi
Pi ROB RE RETE aiays hae TE Ri UiaeeReI iRlitinini donna ‘See ‘at i
5 }. f eo
yay Ct ee i ie Bee Bey ah Dh a / ce R33 a
HARE ie ar a” St in hed Wanaka Mah aeoagt cabal Yai wha + Y |
EG RNS EN a ea i, Sek einer, Bae dake. nk a srt Pe ‘ a
ee a eee ee ae et 009 4
EL RAN ANNAN OE hy CHORD agua g wa Sn Sgaieanm ln ew _
ae Dhow eX Deel “eRe BRAN a Shawayad’ ney vey wn ae one te
A ee RS ah OPN Sepa ee eal Yea liae Mele Sea rite, Ciisteae ner wit ca
¥ ( " ¢ , hha id Ua ts ey ike
had Sae compe stata agian a Bee LE eethaad ee aa Say eke gaat aids
SRO NN EN aN aA, MINI «eR EN a aE bah ithe
SiS ea OB ae Oe esta ‘ Pikes ai alte rv ea ae Wah we ae enn | 1
wy i v4 a (bn rank ee " er
Doe Me i aaa CG ho
eal NER | Bi YA. eld AR cg es al
EL AS ME RNR ere
ki le buon iri Mal 6 hi
WP OP aR, Jb aur in ne a i ‘ia Rhy 9 eT ‘ae te bas:
Hh ame RRR hoy i it ER RE Aw ON oh oe
me nk type nner wale may Doe a aia om us wi
lle i eng nag shel ag Rg ats ia santa marae 4 : "
oe ae ve. Tae Si Bamps Passi —— "
46 - 31160
THE PSO7LS OF THE STATE OF
ILLINOIS ex rele WILLIAM
H. HEYWARD, individusiily APPEAL PROM
and ag president of and for
the ILLINOIS DIAMOND CAB SUPERIOR COURT,
COMPASY, a corporation,
Appellants, Cook coUNTY.
Naa en a!
Ve
WILLIAM &. DIVER, ae Mayor,
ete., et ale,
a ee Se te Be ee
a} 4
a
vw
ee
Appellees.
BR. JUSTICE PITCH WELIVERED THE OPINIOW oF THE GOURT e
Thie ie an appeal from an order denying a writ of
Mandamus which was sought by appellants to compel the
issuance to them of taxicab licenses.
. Appellants’ petition alleges that in October, 1025,
they applied for such licenses, under ordinances of the city
of Chiesgo, which provide that all licenses "shall be deoued
as of venuary 1 «and shall expire on December 31 next suceced-
ing." The order appesled from wan entered on December Ro,
leas. if a writ had been issued om that day, the licenses
have been good for three days. ‘The appeal bond was
ed on January 23, 1956, after the licenses, if iesued,
have expired. |
It appears that the cabana sought to be covered by the
were formerly operated by the Ddamond Gab Company,
became insolvent, and theresfter two Illinois corporntions
formed, one called “Chicago (inmend Taxi Company," te
licenses were iesued in 1925, unc the other, whose
‘PPiic tion was refused, enlled “iliimeis Diamend Ceb Company."
: ¢ answer of the respomients states thet licenses were
BV A SERIOD WOOD (9° fa A POEEIRID 60 ou oat
SAGA BEST te Sa
a}
Sn adit hay pian sii
Ry ae ae
a SS ans Aide
TawOO ax tO Koruna ‘wr cama | oe |
Ye diew os galbyss sebte me mot keouan m8 at etat
eld foqnon oF eteattongs ee stanien anw so ty ouminb
smeonens noise ‘te woats 8 oonaw
aes qtedodao mk “pasta noyoite moi 3830q Vasmaizeags
“tse one to aoonnnivie rebar ,eonmeukl dowe +02 oetteae
bawnal od ‘Linale® ‘geanoghl Le toMd abivenq do kate ‘ ro
-hesoowa tun £6 rocmen ott a@ outgxe IfLode bate 2 ys |
Bo ‘TednmooT to berodte naw mort boLioqie tobx0 oer nal
aeaneotl sil? ~yah fad? mo beweek aoed bart thw 9 cd : ®
saw deod Laoaga of? saqnd sendtt xe? besa need ov: ot
,bawenk %t comannots acta ‘teats 980 96t erp: b
add yt boxeves of of suyivoa adav odd ded erneqee a ane
‘eUsaqae® det haomelt ond yo bodmaego vitenr0? oxo odie
anoiinxeq ies wtomkslt ows red tewredd hae ,emovtoamt ‘ella: 0
ot “,ymeqmo? inet mean fe oyen.tuto” vottne anno ‘sbowr0? @
eegdw stedide oad hee oBaeL ak bounek ore nome
“syagaed da) daomaki ekomsisi” beitoe :doewiox anw notdaot.
i atOW apanvols Bass aodade sensbnogee wit . x8
Re
refused to appeliants because of « rule known ae Rule 6, adopted
by the Public Vehicle License Comsission of Chicugo, forbidding
the issuance of licenses to exbs painted or lebelled eo like
other cabs previously licensed and opersting, as to be ealewlated
to deceive the public.
Appellants olaim that rule 5 is veld. Respondents any
the validity of that rule is not involved, but thet fer five
other reneons the writ was properly denied. One of such reasons,
at least, seems te be good, namely, thet the ordinances require
the owner's neme to be printed on taxicabs in large letters, and
that was not done in this ease.
However, in view of the fact that the licensee period
for whieh licenses were sought hes long since expired, appellants
Gould now derive no pructicnl benefit from a reversal of the
judgment. The questions invelved are now purely moot questions.
"It ie a well recognised principle that courts, in exercising
their jurisdiction in mandamug, will not award the peremptory
Writ where the right sought to be enforced is orhas become a
abstract right, tho enforcement of which, by ressen of some
of circumstances since the comencement of the auit, can
BY, 114 Ill. 185, 189. ‘ee also Christman vy. Peck,
d+, 90 Ill. 1603 The People y. Burke, 274 Ill. 55; The
Be 8x Fel ~i190n vs Koge, 31 lil» App. 3073 and The People
Stevens, 152 111. App. 123.)
ig The judgment ia offirmed.
7 AP¥IRMED.
Ws 's Jes and Bernes, Je, coneur.
ee
= ae
; ae
4 wl
yen ames, dhee ai @ eT Od
orks s0% foatd tad phovioval pa ak , ofan touts to, ethilev &
een scm sere to ond -belaeh yiroqetd aay, Jin, ond amQnney tHe
sahupet gownariove end dace . yen »hOOB, ag oo asivon eno
Serie acgio ign mk odenknat ihe beosatne od id onan atone |
| ‘\euno olde ah ouch dea ‘on eon 3
poigog wgmmnts att dadt soet add 20 wohy ih etovenel
“pdnatioqgs hethaga sonte mol sad sdyion, oxew eanmeatt toAam
od? Yo facrowet w mor? shtened Lopkionxa om wykzeb won Mi
ranodtsosy don YLeWE won OXK novievas ametsneua oft n doxosn
gatstoxone Bh yairsa dads, sigtontaa, bontaxooss ster PAs
YIOsque tag eds Duane Jom Libw epumendcom wt weks |
6 omnpad setiag ak pooroime af et selperoe saat a pte
anus "te aaah Yh ae bihk to daamsorotae orld, dah m
nan _iite of? Yo temsmnonecmion, alt onte Bent suas ina
*,conoie biog agg od shtoned inotdonm, xo ppeopend Me
put) onis 068 +90 «BBL ra Nh oY ala
sages. 08 pee 1%8e vegas ofEE £6 «BRO 2% mmed
POO a Be (oBkh poitgerey so
Ca culeiicon hamnkel and bem eal ROME, OE: cies
‘ Mi My ron SEN 8 8 ‘ ee AND peeeD ‘
is PR ny a hae
a8 ee raha
«0809, aig ue
7. Reree,
a EU) ER Ran: te Ee Re ROME, ee y bonar io wen ao die i
ha aR Bab, aD wd gohan. oF Beth SAAN war he one i
95 - $1223
JOHN ¥. SHANNON,
}
Appellant, APPRAL PROM OLACUT?
ve ) GoURT, cock counry,
;
MICHAEL NASH, ; te =)
‘ppellee. § A ’ fae (ae p
BE Leolheo US ew
MR. JUETICN FITCH USLIVERED Tut oF: ¥ION OF TRE coUNT.
This is an appeal from a judgment for the defendunt
im an action for aceault and battery. The Plies was self defenne,
There were two trials, the first tesulting in a disagreement
and the second in a verdict ef not guilty. The plaintiff
Ginims, justly, we think, thot the verdict is muifeatly
ageinst the weight of the evidenes.
The agsault ogeaurred in February, 1923. Maintire
Was then a motorman end cefendamt a policeman. They took their
Reals at the some boarding house, run by a Mre. Kelly. Pininsirr
Gd defendant were seated sida by side at the breakfast table
one talking scross the table to onother boarder, named Healy.
Plaintirr Claims defendant way intoxieuted, and the facts seen
to bear out the claim. A dispute arose and Mra. Kelly moved
the Plaintiff's chair to the end of the toble. Vlaintirr
Wetified that wnen he finished his breakfast, he erose and
Wed towards the door, that defendant “rose at the some time
ad went ovdumd the table, intercepting plaintiff, and «truck
b : a Vicious blow in the face, causing a compound fracture
of Mooal bones which required a surgical operation and wae
the enuse Of considerable lows to the plaintiff. Lefencent
at thet for two or three minutes after plaintirr's
Was moved, the latter “was arguing and seying how he
my
Se
LUE BORK CARA
OLS d DAB
BRBEE om”
iif hey a i aa
tence et w
oo ~phenddeqehs, So piety ah f
Ws se an
i hepa Sl Vee See an Oe
By as pad ik eee) Mle id es
habia res
ee AE
; seacton
| fabed arr qo wORNTTG mut Qgaaviass ROTTE cornet
nh eal: ei Rang ee
| “tasaba0299, ode x0} snsagbut « mort Lneaee = st eat i
onnseteh, Mos saw selg edt ysoedoad ews duases 102
sesmanxgeoih « ak yoliineoe dorky ons oak
pol ye oo ye,
‘Wihdmtade ost. WLise, com, te, tedbrey, #, weg |
i iia torasov oad sostd 9 takes pop an
eeu hive, ods
a 3G, ddator, a4i,, "
co WRASSE, SRAL, o eanaredo® sh, hogrunne, tunona, ost osama
tkadd. x00d cael smamootiog & Seer deste RE o , Di, ABO ION. & | ae of
Visasal,- gliek awl w ye Mees Oannt BELESARS MAAR ss 4 -
aided saptslesnd ols in obhe yt ebbe. DeheeR, 20 i
Chaat, boann,«tebiaed seddons of, ofdas, ost, soe sabre
mone ate oly, bra giatackmodat aay, sesame hake RERAD
haven <iLel «an, bre enone souqekb + combate, ts sia
_ Mtbamhetins ambied ail? Re, aims gela, 0. ahotio, a 210 a
| eee Plana Oelt nnepiogpoonperansgre camenetea svn : te
Kowrde dae »Witislalg gaisqoonesad rouios os ston an
wmtons% hmsogmen & gokane? eos weld at woke altos :
aun hae gobinrsge “tookguue # bexkuper dots enon inean
Jnnbaetet «Yaksmbate etd! oF duck ofdirobkeie a
a'titiatalg sod'ts assumia god? 10.009 pay dots vert
eit west aabynw bes gabuons aw” saat od «Soro a
0 1 hh
ia AU
oda
could lick me,” and then “walked oround the table and etruack
it with hia fist amc telling me whet he would do te me * * #
and I stood up, and he wae coming towards me * * * with thie
motion (indicating) ond I eume to the conclusion * * © I woalé
not let this fellow slep me ali ever the place, end I etruck
him in the nove.” lnintiff’s stery is ecorroberated by the
testimony of Mre. Selly and of Healy, while defendant's story
is entirely without corroberations
it sppeara from the arguments filed here thet the
probable cause of the jury's verdict was the fact thet plain«
tiff and the Inndlady, lire. Keliy, both testified that after
the cccurrence in question, pleimtiff did mot werk fer two
years, while it appears from a stipulation made during the
trial that plaintitf® worked for the etrest car company from
the date of the anctdent, Yebruary 1S, 1923 until Kay 6, led,
@xcept from April 23, 1923, te August 5, 1925. Gm the basie
of this evidence, defendant's counsel argues here - and pre-
Gumebly mace the same argument to the jury ~ thet the whele
testimony of the plaintiff ond of Mra. Kelly showld be dis-~
Fegarded because voth teetified faleely “in a matter material
to the issue." The matter referred te wos material only as
‘to the amount of domages and was not at all meterial to the
main iseue of liability. Moreover, counsel concedes that under
‘the Tule invoked, the jury were not at liberty to disregard that
part of the testimony of the plaintiff and of Mra. Kelly that
is “gorroborated by other eredible evidence;" sud practically
Sil of their testimony av to what happened at the time of the
Assault Wee Gorreborated by the testimony of Henly, who waa
”
: end is apparently disinterested. His testimony,
ti
ry &
“ie
i deuxte ben ofdet oft buwonge bedlew" wede bao “sem dot Oh
i ** * om od Gb Bhvow ef dodw om gabtios navn oat eld ili kw
| abst dele ® * * om abaowed yatmon saw. oxi aca «oe boota #
i bigew teen ‘moluutonee ons of emno 1 bee. (paks ow kberk ) tno
| pnpsailthg 4 eae eoenty ent teve ifs om uote atten, wht tbe
od yd dotorodertnn eh rots oN Fihel bolt *.onam od mt
| Yiote atimaberter vsinw, aXdool 3 Yo, baa yor «Oth ‘So erom he
ihe ie _ etgksoredesten twoddie qhoetiae
uke baat tn beh BY Witenes weabQaa i on
amen ene tone ete dow Bitiioy a peit Ud Wi wellld bee
septs: Sade wokThbusd died (Vitek .eek yybithaok odd baa ®
ows d@R tow don MES YaMatelg (aekedde) Ab obaidteudos |
add gubiah Shim meivobigthy 4 moxt breeds th shaw’ lie
store YRaqaen w9e gootte ahS ayt booltow “Qe kietalg ‘goad “Ea
sd0RE YOR Kitaw COME (AL eawrd ee fae dise tale edab
- wknad ocd wd ceaer 6d dened od fever led Lies ede dee:
nigh bat = Oeod eodgte Loanwes é*emibanvoh (déiiedive Shad
“whee eMty sia Seawh, ite od suing "lg Win "B6UM
wate o€ Divert YELER veil Yo ous ‘Wataitatg Ss’ 20 giao
Kabeo tine es tne a wh" —Lowtet boLtkdeod Hod sawosod bolnnn
we ‘Gito Labcodee cow of berry ted ved dom ‘batt weer ‘odd
edt oo Leluetem’ fhe oe sort ose Nth eopedidd to" seumee wae
Thaw duly Wodeoseo Loanvon ,cvvootelt .yettematt Ye omabd
doe Deagoweth od _rrothL so vom etew xg ott ehexovmh’ olin |
tose Yio se te haw Weivienacy’ ato: ttavnniesglophiriy
qieostonny dre womeodee elernars caddo yd bodnxedets
orld YO emt? edd do bemoggnat pormetionathcbsi sean
sow ady «ook Yo ymamtouod exe net bodwrodorte daw"
eWomsined ath sbodsowodmeetd gttnbtigt Yeh Bis a
+ peak mb tu shneneyhalen il, GGT GRE, A MONT OEM 1
4
* well as theirs, shows Glearly thet the defendant was the
wOe+ N\SRCOR Vs Claycomb, 52 I1l. 566% Yells v.
hart, 118 I11, ‘pps 217.)
Yor the reasons stated, the judgment ie reverged
@ the cause remanded for » new trial.
Gridley, >. 3., ana Barnes, J., comeur.
a
ond te mihake si ae cata nwa fn Ve" wode be
cae ee os a dares it hh aay vm me, bo
tele oem De ea vai”
eipion wuahe weet v og dboet celta wt "
Gakye tha nae a sidnioati “ :
a YOR hepa wine age: wage ‘viva
Al4 + «(51443
al
Fe Ge HeRORICKS, delag business
uméer the firm name and style ef
Pe Se Hendricks & GOes APPRAL FROM MUNICIPAL
Appeliees,
QOUNT GP CHICAGO,
: Ve
SAM ORWER»
Appeliant.e = — AAT AR APR
a
we
\yJ
MR, JUSTICES FITCH DULIVEREDY THE OPIWIOM oF tHe COURT.
This appeal ie from a judgment fer £635 fer breach
of a written contract. Plaintiff is « real eeteate broker
anc éefendant the owner of « building in Chienge containing
‘eight stores and twenty-two apartments. Im October, 1944,
they executed, simultanvously, two written contracts, one a
ease end the other on agency contract.
4 The lease demised to the plaintiff two of defendant's
, to be ceoupled on a read estate officer fer « term bee
Getober 15, 1924, and ending April SO, 1028, the leanee
te take possession of one store at the beginning of the term
Gd pay $225 u month rent for 4% until Muy 1, 1925, and then to
: pessession of the other store ond pay theresfter for voth
&@ month rent.
By the terms of the agency contract defendent agreed
over the renting ond management” of the whole building
iff fer s period of one year from May 1, 1925, and to
‘Rim ® comission @.ual to two and one-half por cent of the
o Collected, provided thot if defondomt sold the building
that period ana failed “to have the purchoser aseowee this
PASTOR MOA Mh
sSOADTRO TO THVGH
Me ee
—_— si aL)
| i BL ebay toa,
* .
ee ay Me ee Ue we
EO 3
. mee LL ieee Ge spree leo eisai a
<GhKO AT hb Ne c |
eas Ms, Ce } & \ aN -¢- mAs
Seige A GA LO
o TROD 2m7 <0 wasn" ERY quamv Leia Koon aoETOue ew
>
ay) i
donwrd wot 2880 vot dmmegoul a most ob Lecqua aint sige
sedeud slaves Laon o ot Pihiwiehi «toattaos modihawe «
pitaksdson egueid® of gukhiiad a to catere att dmabae'ted |
REL y todas? At cataeuage ewiyanWs bee words dal
@ oo ,otueriees aesdiew ows «tiaweemedlomta shogwowxe g
etoaetaee Yoregn ms teddo acd sa haa
aténehbaetes 20 ews Tiidnkala et! 96 boatawh onmek of
ood aed # tet volta s@agae Lnet » oa Selguseg od oF ‘ial
sonnel ods OSL ,O% Lisqs yakoae bar a hOCL glk vedeae0 yaka
ated alt tw gekantyod of J¢ oxote ome to mokeasanog multe
of madd baw ESOL yk WM Shame 22 wr moe ime @ BELG yor |
iiad 20% xed tawreds wa baw anthewnetasetionesss 0%
“ sinen strane a A
bowngs gabmeteb Seovines: youngest? ty tented Ah)
wbelivd eledw alt te “tuemp_enwm bre gard sewn saab
o2=
agreement,” then defendant agreed te pay the pleintiff “a sum
equal to one-third of the cammdevion for cellection ef ronte
fer the unexpired term of said period.*
Plaintiff took pessession of the two stores ea agreed
and expended over $6000 in permanent «Lterations and fiaprove-
mente in fitting them up for hin uses In March, 1925, ¢efendant
geve him a now lense for five years from Nay 1, 1905, at the seme
rental of #300 a month. The acency contract was never carried
out. ‘hen it wae executed the building was in charge of other
agents, whose contract oxpired on ay 1, 1925, ond was then
extended by the defendant for ome year longer.
| Plaimtary Glaims that he aeked defendant several times
before May 1, 1928, to turm over the renting and manegement of
the building to him ae ogreed and that defendant eadd he would
46 so “in a few days.” Defendant cloime the agency contract
Wee ¢oncelled when the new lenee wan giveme
On June &, 1925, defendant wold the vullding and
Motified plaintiff that his other agents were authorized te
Gollect the rents. This suit followed.
Upon the question of facet involved, the evidence is
tm nopeies: conflict. Defendant and ome other witness testified
. the ageney contract was caneclled. VYlaintiff ond one other
testified to the contrary. There was no jury, and after
re the evicemes in the record we enmnot eey that the finding
the trial jucge, «he saw and heard the witnesses, was mani-
or ageinet the weight of the evidence,
| ? | It de urged that the agency contract lacks wateality
tm ss it contains no sgreement om plaintiff's part to mange
i rent the building for the defendant. A similar contention
———— SS
men ao” Vthdekalq od you OF SeomRe Sembee teh dl ime
atnes o mohioetios tot molentumms od? te senseatneedl ine wi
“shove babe Ye meee tod Leptin
heetg ae nowede ood ade to aolosoanog oot ‘vrboatart hol ct
movortiak Bam emORIotodLe Smwraatton nt 6008h ‘seve aobaogee
tuabeotod «TORE «sioall mi vow ake wo? qu mods gmbIee? md Ot
ase ght tu AROS gk yal aost axioy ovEt vot weack won a utd ¢
beksxae OVER sox Aserémon Youngs dT «Kane ao 008% we. te fad
sodte te egiadd mh enw gubbiiwd edd noiliiones enw sf — .
ee ee ae ee
wicnaeiias stopmot rey cao cot vets ten hy
aomkt feewwn dewhasteh bert wt Pit) satetd” antral" ™ 4
te sreapgemen bet galsaor wel Yewe mad oo OREN’ of al ot
Bkwow nf bine stobmot~o nds dew Reotye’ em wht ov pitkhttid”
toandawe Yomoge odd omhaks Yrenestet Layeb oot a - on
anette eal oaltiot wun ote rat be LE .
pie yeh edited ond Shee Henomiten ,eaer a” acer ta ao
gb Neibwelthies exe set nwitee edet sods Vortatong seh
| | showotte® thve that Velma wily bel
ak somehivs ote ybowtlownt feck vw moncianretloes — wre ;
ROktkeadd amwmd kw coitse “bow bard’ Fethb ne Least
“oto ome bee VRedetaS® .betLoonne aaw soontaies %
ootiy baa ew, Of amw evo? sctwutnpe ‘belt 9d) bok .
waits ae heed ppnantbteprrtplrgetinaldcrniesso to at sith
wiitowtin witout toveiwos yoswne wth seatt! bajar Wen Oe “a
eRoncsot OF Fis WY YRVeLote nO dmommoiegh ot atibwiseien’ 9 ait
woleneimeo ualhata A » dat teas e als “oF gakothud odd tm 4
~5e
te a contract of agency or employment wae held unsound in
ib, O28 TAL. 605, Upon the
" %
i er llc al
Re
1h on feacin donee 2
ME CerLce As ¥ a
authority of thet exse, we think the ebligetions ef the con-
tract in this cxse were mutual.
The court awarded dameges equal te «a full comoioal on
of two and one-half per cont upom the amount of remte collected
by the lesvors during the yeur covered by the agenoy contract.
Im this the court erred. fhe conteruct fixew the menoure of
damages for such @ breseh os is shown by the evidumec, at a
um equal te one-third of the emount recovered. ‘The judgment
‘whould have been for $285 instend of $868. For thie orrer the
| Judgment is reversed, and beoouse there cam be no dispute as
to the stipulated meseure of damages, the eause will not be
“remanded but a judgment will be entercd in this court in
“Plaintiff's fever ageinst the dufendunt for 920%.
REVEAGED AND JUDGMENT HERR,
“@riciey, Pe Je» and Barnee, J+» GONG.
nme one % | ame beantian, nat Ants ow sepens Gti ‘yo hws
ae ee SRR OS file
oe ae
see aire oo nhs
Retention sitar tp, dmwome od; megs $G99 saaeeidtigatthentasiie:s
Ver
att | yr Ske) ome oly
ey ee
Ma vier 4 Pe
at bg ae dk
wes Te anki ice At ae ica, * wens ‘tags
at ning Rae 5 PS eatia aS
: Msc MeN vid
Oe eee aaa se pasa Hack’ Sa Oey: ee ee 1 eile?
ep sie He ah %
be 4 LA SLR aes Heise eae, as ee owt ue Ne
x adauaeaeaa
hae nd Aelionwwe sar Peres ares aS of
di” IR. 9g rua teas Tot ee na tieiead
(- Ht A SRR aL ae tr) wane 5
i i f tn ae 7 ; at : ‘tee i: cee
My CR pee fa EGR RN Ua Raat Be Rain OR Bi Spite gest alae vig bau dus
Oe ie a het faith ‘iho ¢ 4
Kate apenas Mewes ‘eatin’ hint” ‘hapa ae “ee '
bier te Pg a a OE wey ae ay ssibotnia’ Pa i .
voices Golletu Ad «eipha"bee ate as ye bed Cll ee
123 - «32283
jen’ of the estate of TOVIF
a. }
a }
}
Guardian WELER and AWTOR J. PELGE,
Plaintiffs in Srrer, Pron
Ve CIRCUIT CoN? ,
BEINGES end MILI Ge RIGRMAN, COCR COTENTY,
yg ontepoond ond ge Gopartners under ate
firm mome of Kiseman and Heimsene©) A)4 F | ff
Defendants in Urrer. fe “RFR Belhe i SC fe
MR. TUOTICR PITCH DILIVERUD THR OPINION OF THE COURT.
Complainants’ second emended b1lil was dlemicsed
for wemt of eyuity after the demurrer of defendante to it
he been suetsined. Complainante appeal.
Complainants! counsel cerrectly states that "the
is one in the nature of 4 bill of review to correct
om the face of the recerd and ‘or am accounting by
| ts for money alleged to heave been improperly paid
° them for fees as solicitors in a partition auit in which
, “Fepresented Katherine Felke (ome of the complainants
fein) ae complainant." The bili was filed without leave
court, amd the questions presented by the demurrer are
sthex such leave wae secesuory, or whether the bill can be
ae @ bL11 te correct errors appesring om the face
prior decree, or to impeach that ¢deerce for fraud.
It appears from the allegations ef the 111 ond
2 the exhibite (which are attsched therete and specifiesily
eo part thercef) that after a deeree hed been entered for
ition of the promines deveribed in the bill, ond after
ey ee ee ee
! a 7] admanets % glo a ode sede
eo Abi wate aye
A NIOD BAT WO moreso a aewertags. HOES ss
boy,
megane
“pews tak saw w ELke seinem eeeoe “Vedee
Hse yy ao ny
ay Ha eel Ate Mas
foagaa esr iatgmed ai poll ed f
ode’ Suata aedain ‘Usoert09 Touma cumne Ved tania en 4 wired
a dh iad he i yt we
foorwe of wohwes to Lilé # Y9 sxudon | arabe:
Bee
blag yLroqengms ayed ora we seaetia oa ‘ada
BRR ay AAR, SRR *, % m1
sh Rede ae tine nolsiduaq a PY exottoises oe
cbienbetene ag ‘be wae j suite cmb oun
wrnek Suadtiw Solh? ane ithe oat 63
ad geo Lid wd radsedw vo yyidnavend anw nk
oaeh alt oe yebiaogge wrexte Jousren 8 kite a da!
Paes 19% Bornes dail? Sonoqme of 40 .soxp0d bein:
bomen LERM walt * ankeannne ad tee seahal wl
we
@uch premises had been sold to one of the complainants and
the sale confirmed by the court, sn ordwr was made fer the
Gistribution of the procecia of the sale. This erder was
based upon evidence taken upon o re-reference for that purpose
and the order directs that $4000 be paid “te Sigeman & Heinzen,
for solicitors’ fees,” inutend of being taxed as costs in
favor of complainant. This was errer (Moku)
209 Ill. 504, 506) apporent on the face of the revord.
it is further alleged in the bill thot the complainant
Katherine Felke employed thy defendont Heinsen, an attorney, to
‘bring suit for partition of the real estate mentioned, of which
«the owned an undivided fiveeeighths interest and ole had dower
—— a homestest estate im the remeinder, owned by her three
‘Minor childrens that no other porson hed any interest in or
“ elain upon the property; that defumdunt's firm is nemed through-
“Out the plesdings os compleinunta’ solicitors; that the com
plainant Katherine Felke relied whelly upon the odvice of the
- defendant Reinzenm and signed without question all papers and
@ he advised her te sign; that in the matier of the
of solicitera’ fees, defendants, while purporting
eet for and represent her, acted seeretly and without any
to her and without her knowledge or «pprovals that the
Sllowed and paid to them are growely exeensive, end that
¥ Gia not lenrm the facts regarding the allewanece and payment
a f solicitors’ fees until after the term expired at which the
was entered. The record shows thot the order for dis«
tion was made im March, 1925, and the original bill in
ease wou filled in Jonusry, 1926.
bra etnomiakymes wl? to ose od bee med tas austawee i
os set whee awe Rees me abun adi vd baowe Einee ha ’
Baw Rebuy atdt selon odd Be Bovey ads | ‘te ie me
ouagung take 0% eeuoreton-0% 6 mee cemlad winiadin ans ‘boas
emoaadall seston bh ea" bbeq od GO00% toast adoorks scan! oa be
+ 209% sii to vee? oii. - favrosge (oe 008 Arey @
dnaatalqnor ods tout Lhkd oft ak Deyetio eomtswt ab Ot" dss
folie io v bene baie siasas Laos. ea te 0 mensketeg ¥ - “— as
RAPS is « we
towed det oats bea Sunred aitdgtoweyt? bobhvieny hoof
woud xed Ws benwe reobateme wate wh wbasae 20 busdapaod » te
ah Pas KYRA
to mo gaotedal wan bast noetog ‘rodao on tas Amethtido: vu
otlgto sae bom at mt ‘a database Vo saat iwerevor Pid
“aon wild dusts ‘(arog tolion "ef sind eqs on ome ar
A
aed 0 sobvbs salt woes | ode | denser oatet ex" inset r
bao nveqeq fia motveouy awosts be “Dorota, ba pap i ag ry eS
eds te ‘wed den aki wk daxte tagte on weg poatytn br Nap
pakd voi oftite cadanboetes rave? Sampetosion, Ye | oon
Yee, swede tw hes utoross dates 1rd, smoaeqes: bap ts “0% does
at doett pLavonngs ‘0 opbotvont wet, awed bw dao rad oF, on8se
wis baa cordsawuae seers om med? oF dike den beweste ape
wea a
ads dotan da | berkexe aad ods xsd met ri
waib xe sone ome oats woe bxove7 , shexenae aay
wk Libs tam <0 ads ba oh Hoo wokand:
tad Cia) B 5 ots anne & vat ste srl ON ENT
The prayer of the second samenmicé bill is that the
order of dictrivution entered in the partition euit be set
aside, thet the $4000 paid to defendants in pursuance thereof.
be decreed to be held in trust by the defendonts, that “an
accounting may be had and taken of the usucl, customary and
Feasonsble solicitors' fees for legal services in said partition
euit,* and tht defendamts be required to pay over te complain-
ants o11 sums received by them in excess of whatever amount may
be found to be “a proper and resvonable solicitor fee in enid
proceeding,” and for other snc further relief.
It is well settled that a bill of review fer error
apparent on the face of the record may be filed without leave
of courts; or if the object of the gag is te impeach a decree
for fraué in precuring the naiees) my be filed without leave.
But it ie equelly well settled thst Leave ef court must be
@btained before the filing of a bill of review upon the ground
or mewly dincovered evidenee, and such leave in alse necessary
where eavyerments as to errors of law apparent on the face of
tae recorc, or chergee of fraud in obtaining the decree are
with allegations of newly discovered evidenee. (Glos v.
The Peo: 259 Ills 5325 Horrigan vy. County of Peoria, 262
Thi. 36.)
While the bili in this case charges fraud on the part
Of the defendants, the freud charged is not the kind of fraud
. Will sustain a bill in the nature ef » bili of review to
“my a decree for fraud. The fraud fer which such a bill
: y ve maintained is fraud in respect te the jurisdiction of the
. e “which gives a court colorable jurisdiction over the
presented.” (vans v. Yoodsverth, 215 Ill. 404, 4075
Ava Uh
aa
watt send wt chad ‘ve ema peieren ea te legs rng ott
Petes ie eas A od tf
Fee ag hata nie26.bo-104 eae at becesne mokiwéteaka . sy
Rig ae te
Pawnee AN RE ER wh admadae toe os bheq oouas odd 9 dostt von
4 BE RIN TN. Rs Alsi bias
i we” ed 8émshaoty’s waka w fossa at died ed o¢ )
if Ns EO. ON Ba
bem Yranioe ogo eLeareay oats 20 seated bas tat of von pabamion
be
mots beac bh ws uk weoivroe tages 302 east texod totfow etdanoes
; PRR? sho kite
~ataigans bad reve eq gf seriuper od adnubrotss jratd hen wa
tie eae) Smalhs ERC Po
‘ome Hesrecis ‘swvedade ‘snsoxe AP mds wf dovteser amma
_bhee at ont vd Lohien efdaawase ba seqong a" os of r
Eva MUP Ms th) oe #
Yabo estuary “bas auto tot baa RS,
Ee YA 3) wie pee ene
te sot wolno te. hed a , ana hoketou Line
va Mey fh eee Ta Dee
orook susmate Ber best of va vaneo: ea to sont ots ma sneuna
u 4 Heel PRR
oavond a oe ot at fae wit 10 tosgee oad io sah ned
ove duoale By bakes od wear eonned ait unbuwoor at i
SL Re a INR Keg
od gaum éxaoy Ro 2o event dealt bekison tiew vlLospe Loupe i
AR SNE eat ae ie
" hmsn, 93 ower wokyex Ye ERS # 0 gait? vad
‘Weeueaeon onte sk evsed down ‘bu .soresbtye boxevovedh
- we f DME tee Pas 9 en
20 wot alt mo enoxagge ak Yo execs of ue sdmomiova ead
Hitt eet te ee
9m ona) ws yatmtarde at hers te uspinlo 10 «meer
aes. EASE a nd t Dae
i we segentye douovsonk® ‘eed te ameke opetia dabw ont
DRE TENTINY Milne Pa eee ie et ying oe
; LEE @as
GRRE +
Oy nila dines 8 OE RNA ON ni oy
a | ;
Boy nO { { Pe) a BS, ee
es wat 6 bucoe? eeginite wwe shai a tii att ob bet ae "
| bears to inh oat oo ‘a ‘sail “hare odd eedaubao toh Git
‘oF vetver ‘te itkd @ @ saute oe cate Le yore)
BP ‘tae Sie ve i ;
shee # dows dotaty Sox nnwen cat choaea” eek abel aa. ;
y De a Tne RV. Nphpaene re dig Wo me Hint '
elt te seksonbatust aad bs eareeedyit saints
Ri Gy ahah 4 Ry
wiki gp aoticthel mt akdoratee 3 ':
woe, soe eLhl are
whe
Hints vy» Holdenhayer, 243 Ill» App. 827, 236+) The fraud
charged in this bill consists of the alleged concealment of
facts from the complainant Katherine Polke, which defendants,
as her solicitors, wers bound to disclose to her before they
@eeumed to have an order entered in thoir own favor and,
practically, against her. ‘The only theory on which such
alleged fraud could be made the basis of = bili im the nature
of @ bill of review ia that complainant did met discever the
evidence of the alleged fraud upon her until efter the term at
which the order compisined of was entered; and that is one of
the allegations of the eecond amended bill. It therefore
Qppeacrs that the second amended bill falle within the category
of bills in which alleged error on the face of the recerd and
@lleged newly discovered evidence are joined as grounds for
Feview by « bill of review. Under the cuthorities cited, leave
Of court was necessary before the bill could be filed; end in
Barrigen v. County of Peoria, supra, it was held (p- 46) that
this ebjection to ths bill can be raised by either demurrer
or by motion.
There is a further reason for sustaining the demurrer,
Mot argued in the briefs, but suggested by two recent decisions.
In Bilson v. Omart, 324 Tlie 276, 4% wae held that an errer in a
Geeres of diveree miking a oolicitor's fee paysble te com
plainant's solicitor instead of the complainant, cannot be mde
the oubject of a collateral attack, since "the irregularity é1¢
not affect the court's jurisdiction to render the decree of
divorces” and in Re vs » B16 Ills 169, 170, vhich wag
® bill of review based on allege error apparent on the face of
» record and slleged freud in procuring the decree, it was
F }
5
ee
eae soda (OTL 9 OL LET ee
om
heh OM (4OES g RRR. Ge «hL2, Gee. sxawele hol oe wt
‘to tuomieonmoe Bogedia old te atolameo tihd ekdd wt. bag te
sndunbae tod dokde akle® enbvedsa® tacatakgamo ond mock of
“ede oveted mod vd vaglankh os peed otow euxosseiton ted |
hen sore ave thods mh, mnineten, 3a At: COME Ot NY
seme tokio wo yoeds yao oult «ced gomtope, »witoode
wumten ott mh tid o te ehasd ont, oben, bi, Meet eat taael
eld covepeld tom O86 Smamtatqmao dod at wekves 10, EF Ms
dm maad oxie opie thane, sed. mous twart bogetie ond to auaspl
to eae ah gad Sam ghoesedae eow Xe hontalgnon nebue odd mol
evoteundd 43 .LLid bodaomn baopos df Ro anokingetts «
caeygeten add middie aliek Ifkd aebnemn bxaoss and. Soatd etawg
fos. Srooed od? Yo wast od! mo wens bepotia Molde ah meLeg
Ot abewory am Homkel ovr seaehlve, soxevegeth ehvon bags,
ovaek abode ucbsleadige at tobi! owelwes Ye ALte 9 yd week
mh hue, gbaLs? ed dimes Lfio, pas auatod REMAP aa * id
fade, (8% «@) ial sew J2, .gme saheeel 10 Kean Be:
nevus apathe ws beater od fae, Lihd ede oF 5 moleeoh >
AC St i j 5 ria A
NY ARE NR Ra
ste Ttaob ond _aaumbesous x02 nosaen : somteeurt a ak POT be giiadie
rareie bas” setowa% ond yo bodaegnne abel anton coda ak om mee |
o wk sone mo Gard bLod wow Ih rd -£E aae Sua. amahke
naan, ot aldoyen vot attattaliog « maiiag eayes
obam od Sonne ednombaleguon add 3e postent, sort kien ales
bh wthrelugotrs ods" somtn qkanady taeet a)
o orraek ode nebnar oF notcaonton, tte pre rs atte,
mm goat of) me dmozegee sorte eee a0 me honed watires 3 J |
a aa
ma eh eerge8 ned » q mh eae ois ae omen Mbetinen aN mr |
oe vi Sue
that “am attack on a deores by & bill of review ig
teral,” amd that "« w4ll ef review Caniot be made to
tion se en appeal or writ of error.”
if the fraud charged in the bil) de true, une
dy, the complainant has her remedy, but it is net te
* found im such a bill as the one under soneideration.
are other simpler and more effective remedies in
Cases
The deeree is affirmed.
APYIEMED,
Ve P. Jes and Barnes, Jos Coneure
‘ Dy
ASR gh
<qlh wulbvek: 40 Kht a 0 eokbin de enmmadaniaae.
od Aan od donee wetpor Re Ske a” dace haa *y
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Waa Me 4 ated
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has Wis, Gas
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cAI 4 . uy
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May BR tities
b pea: Wi
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erin wed aatw spank emunaetg an tei at nse as
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x Bee Toh .0¥ Ph the ive Weer fe at rr. We
CUI Ab ARON ADIN, «, BORN RE BUROR a OD GER TRS MR A adn, 1 %
VA ik oy ¢ ra eve me Paneee an SS Wee 4 ‘
ae ee A RC OY te) UT a AB ay he Pat Ni hi
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wa a
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ee
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i
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mh aelive aermeeess bai ie,
iy eee Cae Pe) Aa a & Be Sahel waaay gin #
Be OP Re | ie i eae aD 44s A} i te. ,
EEA RU AP ny ah habiicna ah Ras etna h Ne Ri, aR Las sh
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iy HM) i ue
132 + 31262
HOLLANI) PREGS, INC.,
a ¢orporstian,
Defendant in Arror,
ERROR TO MUNICIPAL
COURT OF CHICAGO.
Ve
Je Fe PETHERBY
s
Plaintiff in 2rror. oy
a Pans Viasat? Wig”
6Y
MR. JUGTICE FITCH DELIVERED THE OFIBION OF THE COURT.
This writ of error brings up fer review the record
and judgment of the Bunicipsal court in « firat-olage onse in
eontract. The action was brought te recover the agreed price
or value of certain printing done by the pleintiff. The
statement of claim alleges thut the defendant, J. P. vetherby,
and three other persons, “doin business as Avalon Beach
Company,” owed the plaintiff $2002.40 “for labor and services
of the plaintiff vefore then done and bestowed in and sbout
the business of defendants at their special instance and
TFequest, ae shown on statement hereto attached and marked
"Exhibit A,*” and fer goods sold and delivered, "all for agreed
Prices and fair and reasonsble values" ond in the like sum for
| money found to be due upon am account stated. The attached
*Bxhibit 4" contains twenty-six items, the first of which,
da Oeteber 10, 1925, iz for 0,000 Frowpect Cards #78179,
$3 e” and the last, dated Movember 13, 1928, in for "400
‘Msiness Cards, ete. #78711, $500." There is no allegation
| m the Statement of claim that the amounts so stated (and which
Saregate $2002.40) are the “agreed prices,” or represent the
and reasonable value,” of the business eards and other
| Pm ny Cn Mies | bg) VR AeA
CLO OF MUM 4,
: LOVED. 00 FaNGD. ih ben te
i 2 pie ‘ he IsSIwi Yor sed wy vi Fe are
SS ae yg ; “ recy Ae 4
a i: om ) Kw pe Ptabpixe sm wale cgay aN et fide.
.7THOOG RUT 4O WOTRTGO mir eee woTte on
aR
Rignes ake wokwou tot qu punked serse - thew eta?
Is fk sane eenke-text? » a dupe fog tokuail alg te saps
| eoisg onenge odd AO VO OF, ot diyvord saw molten oat om ps
| ont .tUvatalg od ya omen pabiatrg alesis te ® |
¢ Qrwretite® of «fh dtnabieotob odd Sacto aegeiioa mtale to tn ai
Bs feast molevs an auoutaud pulek" ,anesteq rote vous he
| sonivens ti wodas 10%” Cds ROCKY Yresmbaly ents ‘pew wk ™
| ; tuode haw at bowesand hae onob maxi exolted Bavtiony
fea evandont fasosga whods ta ofneameted to oseal a. | ,
hodtnas ne beiioadin osered smema tote Ho awoda bse e
hooumn cet She” ghevevileb bax biow abooy 102 ome Sed 3
Tot sare eat one ech bees “ynwkow oltnmenaes ime het bas wos
bortoad sea aes ohadede imwones Fey mogu oud o oe muro ;
sdotely 19 dent? ome gcmode xhooyiaewd ankasaso %, ane bo
PT ITS whtad Fooqnes’s al werk ah eset, Ok rodoroo
OOD" wh ak »Q00L «OL xedmovelt booad toad ome aa!
tedde ane obune soomisws os 0 Meouter sénnonses ‘ban
“R-
printed mtter specified in “Exhibit A,” or referred to in
the statement of claim. |
Of the four defencenta, omly the defendant J. F.
Wetherby was served. He filed oan affidevit of merite which
parports to deny, categorically, each of the allegationa of
the statement of claim. After apecifically denying that
plaintiff ever did any work, furniched any materials, or sold
or delivered any goods to him or to the alleged partnerehip,
or that defendants, jointly or severnlly, promised “to pay .
the plaintiff any money whetever,” the averment as to “agreed
prices® ie alse specially deniad im the following terme: "*"Thia
effinnt hus never, eithor slone or jointly with any other person
OF persons, sgreed upon ony price or prices with the said
complainant."
It appears from the evidence that the four persons
Mamed as defendants are, or wore, partners in & real extate
venture in Flerida involving « tract of land neur Pensacola,
eallec *Avaion Beach;” that they engaged the services of one
George L. Priestedt, a Chiesgo real eatete broker, to sel
their Ploride property on commission; thet for that purpose
: retained the services of a number of other brokers or
my that 211 these brokers were onlled (or called
ne vee) “salee managers," except one, named Frain, who
the “sales directors" thet Friestedt rented an office in
c amd d1¢ some business under the name of “Avalon Beach
(Mot Inc.)s" that either Priestedt or Frain gave all
, re for the printing that was done by plaintiff: thet
i printing consisted of cards to be used by the “sales
gers,” daily report cards, introduction cards, vouchers,
a A ES ee oan ars em a inne et
Ne =
PS... SS ee
ar eee eee
Bi os bounohor to %,A Shaded” ml vortinege 16330 besa
smbele Ye Cone
+f ot saebae 20% ais vino »admabaoteb mmmk edd 20.
tesa, Ray nin ie
“oko sfhese to ¢ivebh te wa Sel? wel arneisnserns
sad? grbysob Videos ty: vege week nathale 0 ms ar
bles 1 satabraton See bode heey? ave Yae bis ove state
sehieromiing Aepecia ext? ov To mid 09 wbodg YRe hetsy
Wate os" beakmong eVAhoteves | 20 Mntat sntasouo zen set
baomga" 05 on Snemtove sald “oxewe dose eon ur Bie vm
stat" tamsod andwolio® wate pt botaes Papen, sate 24,
soateg cede yam ad hw xdemtol oT arose. xentte, steven fig
bina etd Atty esokeg xo, soeeg Vain sass POP, heh:
RS IRE” GNRIGR IONE. Seni “stanasaten
3
onouze4 | He 7 tase “soupbtve att sex owe hig —
ws 9 in at vera oxow re a
age ot 4 an 204 ‘ tO 401 28 secabaoteo, on bam
ralennanes aon ‘ss r toont P aatvowk sbhrolt ah r
he ae ee adi A SBS I nay
is este Satd "sdoowl molava®
bE Bie SAE Met) paphos
ktoo es vtoterd otatee aor enone a Rearend *
var Sigh og
one Ye sectvsoe ods | |
“moog tats x02 dat tne den tune a0 we
7. ‘exedoxd sedto m roca ® te Bootvson «
inet oe See ae apie weft. Put jaa way i
botian x0) hosing exww exmiord ore iia oH
ig 1 airgies ew) eo WHT ee a Fh ih Na @
cai outer bo anact 980 ‘aqooxe *seteyanon vera {a Lsave
dg ER RR tab pa dl hate
mt soltte a bosmen ‘shozaatst tade *yundoorth askoe” eal
‘ PI ht: RRR ANNE AN ag
sha nett moiaws* 20 | ost ot whew vsonteud amon bk bus ogaod
Wh APS <n eR mee
ite oven akan +0 Soosvonx® radiate soaks *3( oat |
a, Die:
=
Munir
_ basta pyazsaiatg bol omob ate dad sak. ! axe f
A i Rae aan a amt igh inate tit akan 6 A oe sie
‘aotan” ostd “6 bens aol: rd ubueo to hove heat
apa Sieabieeak <dbuns Sy wea ty banca por:
“\exedouov aban ao
aoSe
letterheads, recoipte, contracts, and « forty-four page
illustrated prospectus. Y¥risstedt testified that he hed a
written contract with ‘etherby and one of the other defendants
as to the sale of the 4vaion Beach property, but that contract
is not in evidence. He also testified that on October 45,
1925, he showed Wetherby the proofs of some of the printed
matter, that Yetherby objected to some of it, but said te
“go ahead with it, ae it was the proper thing te de," and
that after it was done, he, friestedt, presented plaintiff's
bill to Yetherby, who refused to pay it, esying he “wae not
responsibie.” There is no evidence of an account stated.
It is contended by defendant thet the evidence does
not show the value of the printing or that there were any agreed
prices; slse that no authority is shown on the part of Fricstedt
or Frain to order any printing for the cefendant or for the
four defendants “ho apparently did businees under the name of
Avalon Beach Company, of Pensacola, Yloridn. As to the latter
Question, while there is no direst evidence of any authority
from defendant to give such orders in the first instance, there
is some evidence from which a ratification of the orders might
De inferred. Ye express no opinion ev to the weight of the
@vidence on that point. Assuming, however, that sueh
ratification was shown, it wan nevertheless necessary for the
Pleintiff® to prove thet the prices given in "Rxhibit A” were
@ither agreed upon or that the printing wae reasonably worth
‘the amounts stated im the exhibit. There is no evidence
Whatever on that subject,
Plaintiff attempts to overcome thie objection to the
fucgment by the contention that the allegation of the statement
i a
OE
FT a a ee a
oft
SHSG sedi dead 2 tase sadoantaee adqhooor sabaostzodt04
dig Sag age Ve one
an ae
& beet oat sacks boktitand thedsoixt sewdooguorta been "
siaohms tok seddo amd Ye ene bits _yhendeet ste tonntnce nod saa8
fomngaes gosta ud «Wxeqerg Hovall wokawh ala 10 etna ad 09 9a
28 sedodoo sae tas ‘bortisued ouLa x spammbive. wk gen:
ym gM
hetetag oid to enn te e toot os vt caaito¥ “boveia wd «B8e es
ad btew aud att ‘te sive ved beavetdo. vinedsor hskogl ane
— "08 e@ week ls romerG, ‘est oow tk na , as. a
atttiontatg sasnenorq 1 Hooduetat oot ‘eed ann Bete dye ae
tou aes" ont amigas sak we os deawiox ste Bhan
A a ait
betas sausoon Re *e vousb.ive om at oxedt ve
‘peed sumeeiv9 ets todd dmadaeted ww bonmesees uk n
heamye “e ‘oa ete? sieds aati a prions awa te eutay oad veda 9 !
theteotxt to $20q add me awode ub Wkiediua om dad ente ‘enek
oda wer to eunhaston oats ‘cot anténteq A or so ome
‘te wena ous tailed aunatand bie Usnoroage ody _staabaeted a bs
wasted aus vs e sobbuort atanounot hod ’ pee aod sone
wit redsue bnew te nonoh iv» tewrdh oa al ‘ommta ‘ede tod
g PRATE ¢ Ad
acas s pomodant dent wal? at aiobre dove ovis 3 bry tars
xt ¥
este % Sag bow ode et Ba aotnine ¢ on c anorgs ov f
a venod acteurs tnkoq tacts
dasa # nat ve ’ Precgsee oy 2 BoM mt
asd nek ‘erewnonge enokedsxaven sae ak enoda: ane cat ay ert
/ ey alos &
erew “A atkebetaa* at mevky saokxg ode tna “oven 08
210 <ideneanet aay wobentag nnd dats ae Lt en ee
_ someb eee on ue orcad” oshabiine hae at desade = ame
pity e Muah 8 at 80.
exe oh nokioutse | snes ‘emoo8ve oe pounien A gene fackaeckt |
ah PCa DS: |
sanean pate exit Pos nobioyalie ot bass mokscodnen ot? im roa ug
By) BD a Me Te SREY SVS My
avait 6 ¥
| bie
of claim as to prices ond walue is not denied by the affidavit
of aerita, and therefore, under a rule of the Municipal court,
was not required to be proved. ‘There ars two ancwers te this.
One is that the rule mentioned i» not in the record. The other
te that even if such a rule exists, the affidavit of merits
. denies everything that is alleged in the statement of cluim,
end the denial is sufficiently explicit te require the plain-
tare to preve that the smounts claimed te be due were either
; “agreed prices" or the “fair and reasonable value” of the work
“done or mterials furnished. For the want of such proof in
the recerd, the judgment must be reversed and the eause
REVERSED AMD RAMARDND,
| Gridley, FP. Jey und BSarnoe, d+, concurs
Bs
i
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Bae PY wh SAN
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SHS * a | wet
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ies poke kh x
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spa. ew hl :
aan Aap RIES
simon Regtelem’ of) to elit 4 aehay , one tocede” pedir
«nid? oo axeunen WH one wren? cheveng od OF bortesen com enw
‘ytretee ahd wi som at Penokd tas eter aN r
penne Yo Mebane’ od ok Wegettn of teat ganareteve'es |
amtoly ait oxtupos of stoligqxe vhomeno byte’ ak” toktoh ae
euttie vase ont ee oF dombelo etambas emt Sond wren’ t
AioW OMe Yo ouEOY BEGaNosvo% Dad “RAR” ‘om x0 *e00ug)
we Teety Mowe ty daow oss wOt
peman ote: Sah nenaonirne Solan aRREE Se
he aRHt) a dick sd A ath st whem end
ia win angel mee hae a he sug git ye,
(an
i
"ghost koraw’ skakwo som 0
Re eh ae 5 gh byte A ae
wt ai
r Hn eh i Han SES eat a ait quia pane
| atieone ooh senntnd ban ook * i
Be ae Meee aa e bl ws nicl ¢ jamb | ww
Ra
wae
baa
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HO RN, og at sane rahe on
RR Meee gt ae Po ge sire euaKr..
ety Bvt "es F i) ete a) ih hee
a AER COR kta See | Pole” ees eosin mits y
ANA AIEE) y EDS aS ay aa a
\ somhites ‘tout He,
M44 = 31274
THE POOPLE GF THER APATE oF
TLLIBOLG ex rel. ASCHER
TERMINAL THSATRS COMPANY,
@ oorporstion,
Appellee,
Ve
GITY OF CHIC{G0, a Municipal
Gorporstion, “ILLIA EB. DEVER,
Mayor of the City of Chitage,
AL Pe GORMAN, City Clerk of the
City ef Chécago, THOMAS P. KXARE,
City Cellecter of the City of
Chicago, and Joseph 7. Connary,
Fire Commissioner and Chief of
Pire Prevention and Public Jofety
of the City of Chicago,
Appellants.
A#PEAL FROM
AUPRTOR COURT,
Gook COUNTY.
Rae a? iinet tO ig Fine ca ee tc Me Rt Sac tts ee tt
DA AT IN Re cs
“rej
== = \ ; ¢
re 2 kt HBelhe UPS
2 Ane
MA. JUSTICN PITCH DYLIVEALD THE OPINION OF THR COURT.
This appeal ie from an order directing & writ of
Mandemus to issue commanding defendants to execute and deliver
te the relator, Ascher Torminal Theatre Company, a license te
Maintain and operets a vaudeville and moving-picture theater
in the Terminal Theatre Suilding in Chieage, which had been
Tefused because the Chief of Fire Prevention and Public Safety
@f the city claimed that the use by the reloter of certain
draperies in the audience room of its theater violates that
Provision of the Municipal Code of Chicago which reads as
follows: “Ho combustible material other than painted decora-
tions shall be applied te the walls, ceiling or curtain of an
coe
It is conceded by the pleadings that the Municipal
forbids the issuance of euch « lisense until the chief
fire prevention and public oefety and other city officials
L first heve cortified in writing that the room or
Dogars \ f } we) ir
| 7
| | :
/ eae
pi
ye ce eRe
“pez -
Brande
MO STARE | ee
Hida fot xe . ant
seanaen aon come
rane GD
pena. Ay ag
TOS nen 80 anes aRY QravEa WOTEe worradt Py
te ther satsooshs, xoWem mn moxt wt Leaqqa ater, adie
“eviich baz eigoexe af nimohao led sntbaanaes, eanee OF
Oo? eameski « «yregeno wtdcostt Lomissre? sedoaad stotates a
aedaedd eamdolqegntvon one olikvebsey © otaxeqe baa mt
weod bad detde yogooids wk grkbltod extead? Lamkase?, |
Yletal etidv’ bas mokinoyert ext Ym Iekdd ond oummnod be
aistzon te rddalet old yd om aeld J acta bominks yas oe
eid anteloly tetaed? «dh Yo woos vomeiine ods me bi
an ohees datdw egegtad to oad Leqtolmuld ond Yo a |
saxoo0% betateg aodd reite ialtotan sidktawdmos a" sme:
ao 26 MLadxND TO aMbthen yaliuw odd od dokigqa od, ct
*.¥ 70 Vi omet® to guthhie’ que m2 moot onmel
[nao tent eds Jad aguthvela add yd boboonay ot a. wi
relde ons Linu eunols » slowy to enmaumat od abiduet
aietoltie yito reddy bas Ywtas olidug hae modsanverg, @
zo moor ody tod? yutddaw mk bodehero overt sax? 4
ihe)
place where it ie proposed to operate such a theater goemplics
with the city ordinances. It wan stipulated thet the theater
building is a suilding of Ulane V anc that « number of “drapes
were hung in different places in the “augienee rewm" of the
theater. It appeare from the evidence thet these “drapes”
were mie of woolen cleth saturated with ao chemieal solution
which makes the cloth “flame-proof.” Thie fireproofing is
gueranteed by the manufecturers mot to wear off im ten yeare.
A sample of the meterial wo fireproofed was produced in court
end a witmess applied a lighted moteh to it, which, he
testified, won the teat that do ueuelly onde, The record
shows that counsel agreed in court that in thie demonstration,
"the materis] became cherred but did mot ignite,” and the
sample so tested, which sppyears in the record as an exhibit,
apparently shows that result.
Another witness, who was a chemical engineer and
tencher of industrial chemistry «t the Armour Inetitute of
Technology, testifivd thot he had made tests of fourteen
Samples of the same miterial at aifferent degrees of tumperature ,
te see whether the material tested would become inflammable
Or ignite and burn by the prolongee appliestion of heat, and
thet he sfterward subjected the same semplee te the flame of
@ Durning mitch, then to the flame from a city gas main and
finally to the flame of a Bunsen burner at « tempereture of
2200 éegrees Fahrenheit, ond thet “in no oase did the samples
of @raperies ignite or burn by heat of ite own combustion,"
Gd that the flame ef the Bunsen burner "slowly carbonized
) the seomples, “hich disintegrated and fell te picees."*
eharacterized the samples as "fire-resistant" to all
fires," ond “flame-preof* at the temperatures
SSeS a ae eA
qehtquen Tetendt @ Mowe vdeo Of bonoquey at at oredy woatg
tedanid ade todd botaiwgita enw #L +eenmamiore “to orld tke
“aogeth” to recta & tate bee V asato to gabelaod’ ‘aad ennel ;
eds te “moo gometiun™ wd 2k envotq’ sauau tty mt ‘and: vow
"seqaeh” ened Goat sonedivs oh? mer?’ BEHOGEG an ‘eoeaeas
ao séaton Leoteeds a dtivy bataurten diele aeleow 2 ebam oy «
(BR pM Roeregomet okt *s towsg~emenk a” tote Lill sede
sateo mi Ve wnew o8 ton ecoxubo nae wt
“fuppes oft shen eh hownss 6h a wi .
eid bate "<odhays com bth sud hoveuty omaned Labredam
sete me oe beooet odd ak ataeyga. so haw sboteod hal
atiraan” toatl owodls “Lhsew neil
“paw sbomi nie ‘io bint’ « esw oat" sdend Pe vt nt “"
“ws iat Recnt owes kas oa extebndds tadidemnad’ 2b %aeiihel
penturet te ables aont eat od PUKE rr es
sshenienaning te Udogob sueawTstd Fn Lhbthe ht Citnw ree ire
Aidonast tek ekoood Bibs hetins Laraidaa wily cate
hen’ Fak Ww" nd teaoE RGN bepnotony tuft ye aiid ban\b
to emt? oi? 0 gulqmme warn ‘hdd debe babe” suns of
hore tetova bog Oto w ott estat oda oe” ‘ebitd” 5 bd alk
te setetegmed & to tomend inna Sto omelet ond OF
wSiqune siti Bhb dxhb oe ME” dealt Wan sare sons
* serioudues awe eek te! Siro eo ania” to wdboge | 4
seutaveres yiwede” sated netaunnal ehritadinuni it th ;
“Nasobte 09 Eth baie betenpiodt of
kie'od *tnpiotest-wnkt® ee wedge
indicated. ia conclusion was: “Im othexy words, the mterial
is noncombustible.”
' he chief engineer of the Fire frevention Bureau of
Chiesgo testified thot he dic net regerd the worie “combustible
material,” se used in the queted section from the Municipal Goede,
as including material thet “con be mode soninflasmabie by
fireproofing,” and on croes-examination testified that “the
real objection of our of ice downstairs te the lusuance of
this license is that «e don't consider drapes of amy kind in an
audience room can comply with the ordinance.“
Defendants’ counsel inwiet that the ordinance forbida
the use, in the audience room of a theater, of any material which
is inherently comburtibic, even though such material has been
Made noninfilamvable or noneomoustiblie by fireproofing it in the
manner above described. Putitioner's counsel contend that if
any material is ueed in the audienee yoom which iv in fat
Roncombustible at the time it ie used, whether maturally com-
. bustible or not, the ordimamee is complied «ith. The trial
Gourt evidently took the intier view of it and the record shows
that he considered that it wae olesrly proved by the evidence
that the material used by the relater was nencembustible in fact.
Counsel for defendants point to another part of the
| $eme section of the Mumicipsl Code which permite the use on the
‘Stage of draperies that have beon treated with paint or
‘hemicel solutions 20 ss to wake them “non-inflamuoble," and
thet if the city council intended tht such materiale
be used in the sudience room, they would have used
language im the part of the section of the code above
a. Thie argument assumes that the city council used the
) “inflamuable” and “combustible” as hoving different
dakwwdea od ,vhvor waite al’ tmaw modem hegap: 2B joe
ee) wooust metsuovoss. onal, oat ko gonalgne tokdo, edt >
sldiiasiwes” alwow ats deeper Jam pkp wet dott BEER Gee
abou Kogto seus Ot? work moheoon betosp odd Ki. beee aah sy:
Me Ghd ngunligings. ets vd mee" todd Labsedou -
ait” trod WOhLEleed MOLMoRinoxvomagte Be Baa M4
3 opaaweet eff 22 ackataswed co. 9.au0 2 medteogse £
wiauee {tte Te vege) toblenes t'aeb_ oy dams ad eomvons:
eenemtage ot sty Lamon neo meonveoited
ehieue apsmntaxe oid Gadd Sodomk Loummge twsambaw eds) 9
sioidy Lakundom ye 3e stedaeds a Im wet eOmetiee Oe Mh «OMe
Kood sol Lalwedan shige dewatd wove .shdhtonsmon Lm
aed md 24 ymbioommert? ye ekdtiancmoonen zo atone sis
th boss stoteon deanog atxongltidey ,bediseqes owns qweae :
dont ad ak dydtw awer oomehone oat) ak Doow nk Aodaotins 4 we
arr) Ukeutan cedaoae slioas oh Ak ouks od dm ebecbequdan on
faked ofY odd te seliqnes wh somo hoso ads ae 18 & L
Avode Duozes eal! hme 42 Te wade xesdat ond soos, steed a oil
| eaHnbive Ons YS Dovene ThtHALS naw #h fodd RoTObLeROD Pd sath
edost ak Ad Rennteam otente now Retsles att Yd wea Lash a des std
ots te Stag xosigone of fates admebneieh wah siitcnten
galts@, ont ect eAtmung dota oheo LogRokmud od? Xo, m0)
MO tebeg aby bodpord mood ova teat gebae - on 1g
dae ",okdeomatrat~mon” wad orton 9% 0, 08, snp40kin, de ,
“phakes gam owe a oul be pmodne | Adgnaee. a He, Racal FA doe spd
ase oved shew yaks amos wasn kas ald mk sume 0
oveda #308 add 20 metiges el? 20, #nag. tt ecenmeneetste ans
Ae eee
ord bow, Etoaoo eee vite Sealy Soya 7808
aness 2225 atv aes wedges sole bn
-4-
meanings, while according to the accepted definitions the
words are practically synonymous. The ordinances must ree
eeive e recsoneble construction, an¢ we think the construction
_eontended for is not reasonable. One ef -ebster's definitions
of the word combustible ies “Apt to entch fire,” and the fire
department engineer used the seme Gefinition. The evident
purpose of the ordinance wan to pretect the public against the
use of materials in the audiences room which would be apt te
take fire. It is not shown thet this purpose cannot be
eccomplicshed us well by the uve of materials which buve been
meade fireproof artificelly, se by using materiale which are
Amherently fireproof. Ye agree with the trial court thet the
@vidence clisserly shows that the wmmterdals in question were
Moncombustible at the time of the application for the license,
and whether tht eendition ef the “drapes” was naturel or
artificial can make no difference, in our opinion, in the:
application of the ordinance.
The judgment is affirmed.
APYIRMED »
Gridley, Pe deo, and Barnes, Je, concure
|
i
gate Seale atlas Labed wilt Arie ese OF Roongeet
‘egy eters ial tap edqovea at? of gatvaoous wffde oegoidona .
~9% Sawa conmentow eT sanomyumongs Wifeoddsdeq eracebson
ww ktouwree ces add idkeld ow dae .melsogti ames wl danoarar 8 ovkes
‘goo ktiehtes a*vetade! WoenO seldancanot dom ek aed bobmediaee
“wet itt hae “, 2d? Medan’ os sgn” tak efdliaudmog: btem add. ‘to
gagovkvs ot? .aebtialtes cena oat Seas ceemtgny samme
ote’ Jucteye vikeug vid Pooterg oF are’ Somimtbee UetecRow : 49
oF tgs off Diuew Molde aor ooaekbus oad mh SkaLaebam Rea
ba Jonone saegeng Glstt Jord sworn dom ot 8h. ah on
eeod wrad doidy atabesdow te ean ante go diew as
ets dette afdtcotme gakut yt es Choa rthses Moorqort? |
ptew @ekenarry of elelvetnn gf gone eves qh wee ogee
‘eemeotl oy t8Y amlseokiqgy etd Ww owhs ode so ulddoun
0 Ltwdae enw “neqenb” ed Yo ao lstbawo tute cee
eel al yadintge ago cl «womens TEL on exem mam \
Sopra. / ge 8 pone Lose oats te ei
— eoarrk tte ak semmgowh ea) 6).
SRWMAI ERE: co Sek, oes Bowe ALavteantng er, iu
spa BIR” RT IRIEERS, Veh TIA. Sh RO RR ATR aes Rina, pat ‘a
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as Mey a Gye. Ne ira tras eit FEES eS ibe: rt
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183 - 31283
BOLCOMS & HOKE MANUFACTURING
COMPANY, a eorpor«tion,
Appellant, APPRAL FROM MUBICIPAL
Ve
}
;
G. C. ROCHE, Be Eo ROCHE and
T. Re ROCHE, copartners,
trading as Noche Uren.
Pharmacy, CY
Appellees. Ay
COURT GF GHICAGD.
= Silke; wee Ser Ge Wy
MMe TWSTICh PITCH PRLIVARED THE OFINION OF THE COURT,
This appeal ie from a finding ené jucgment aguinet
the plaintiff in an action brought on « promissory note
@xeouted and delivered by the ¢efendantse to the plaintiff
for part of the purchase price of a popcorn michine nola amd
delivered by the plaintiff to the defendants, The defense
was ® total failure of consideration.
. The evidence is not contradioted » One of plaintiff's
‘Salesmen called om the defendants at their drug store in
Chicago to ee11 them @ popcorn machine. lefendants were
interested and asked the salesman whether, on account of the
‘Soming laws or anything of that churacter, it wae necessary
to have a prredit to operate the machine on the sidewalk,
‘
thet they hed no room in the store, but must opernte
outoaide. the enleamun anid he umderstocd a permit was
eary but he would ascertain. Seon after, he returned
the plaintiff's sxles manager, one Kirkland, whe told
mts he "hed been down to the permit department and
out we could get » permit out there," whereupon
ante gave Kirkland their written order, on a blank
rn for a machine to cost $697.50, payable $75 down and
& Ko.’ ee 8 seemitoags .
hes
i “bao BUOOR i “4 MDE A 1)
i t.
ig " ; nae Sat aac Se pon
* ectawro. coo “THOR 4 ses
TRY det to kteraytes @ | a
aero zm ox Am { sSaatcogah : | og
va ae aA he Kite a a ee Li bh a 3a Aone tees ay: 2.
il un Mi 109 il ¥ |
Pee Raich” Si ae
ELOD »
sore edoost Bor.
ie ee a we
- Kk RIGO BAL: KG WALEItO GR. CaseSLeN OSI SOREN os
feakano damming dar gukdat? a mor’ ak tabiega WAdh oo! 6OH
atom YRMelaeg BAe toyed Rotter He ma Vitembeky ite
“ikea ads OF adeunbrwtod Os ye beetew Le! bee: BM - one
bas O8be ontdbom munca 6 Ww sebrq weartoneg su to'e
Scone heh wee pao oity oF Yeksmtaty’ ond qe
smo kende komen $s onsenaraiinin
e'Ytivalelg ‘te vad sbedpthaxtaon Yow Wt vbieobtve batt ,
et cutee are ato do woe onethe ‘ony wo NoLthD moms,
stew ainabse tell . oinisonm ranged ® maxis iiee od
gt oO tomeese ao ,eutedw eameelme od eden bate pose
ginensbon caw ot atedoetede ywltd Yo piberyan ae Bi a
vitawehie sf mo omivioan ond uterege of ttarog w vad of
Stereo Pom dud ,etose wd! ak moor om hart would brane
Sane ‘thorseg s bood exehaw aa disw omeotow ont ote
howiadex ost OP de woes «akadreoed biwow ‘om due” os
bet atv o evade 2 ‘one, Ye¥enen estan beth por al
Rain puiaibcoun’ dkexeq vd 69 awed sod bind” eat | ‘ro bece 20
) Aoqwoxede ",oxetd tue Ylang « Joy bkvoa ow bia
Anald m me ytohvo mead haw wheels bantitkt oveg & °
bere mwob 800 oldwgog 9O8eT¥8e gneo oF ombstonn sear wil
the remainder to be evidenced by their note for $522.80
payable in specified monthly payments, secured by « chattel
mortgage on the machine. Beiltheor the written contract nor
the note says anything about «& permit. The machine was dee
livered to defendants and used about two weeke whom their use
of it wae stopped by the police. Thereupon they mode an
application for 4 pormit, ehich woe refused on the ground that
Gsfendante’ drug atore was "im a residential district.” It
appesra further that there ie am ordinanee of the eity of
Chicage which makes 1% unlewful te seintadnm upon any publie
sidewalk in the city “any fruit atend, lunch wagon * * box,
bin, shew case, plutform or any other arrangement or structure
Ter the display or sale of goods, waren or merchandise” uniecas
@ permit for the same shall first be obtained from the
- Comaleeioner of public works. It alse RPPOALs that ag soon
‘Bs defendents learned they could net get & permit, they tendered
‘back the popeorn machine, and whem plaintiff refused to receive
it, sent word that it was held subjeet to the order of the
‘Plaintiff’. It has never been used simes that time.
. Plaintiff etetes that “the principal error upon whieh
‘this appeal ie based is the edmiselon by the court of evidence
in support of the alleged orvl agreement, which contradicte
“She written contr«ct of the parties hereto, and the acceptance
the court of such alleged ornl agreement ae the true sgree-
of the portics ." There wae no error in admitiing avoh
or in accepting the uncentr dicted statement that there
# 6n oral agreement whieh is not contoined in the note or the
! Pritten contract. The statutes of this state expressly permit
m @efenes to be mide. (Cuhill’s Stat., Chap. 98, Par. 10,
a
eee
=
O2.ac#) vot atom tied? ye beomebive od es tobelemew wild
kettle o Yl Bwumede » ai meuryay elidemoet deltisege mt barman
On Guessmwd aediicw ode codee® omtdena te i an
“ph tym onitonn ofS .tioreg a sods “umber ae P
oan skid sad aoow ows swede douw bao udeadad ten O6 rat
eo Ute yaad cequeriedt «Oot loy ost? we boageve, : ie » ee
dads Remorg vad ao doaton wow Hodde «WRATH r0 Bw sileit «
sf “.goRisekd Latsootitows # sit" oew oxode genb emiiebil
to yko eae Yo eotamtixe me wt wieue guete baonshans vidal .
atkehy ae goku nentebes oF Ketwokie 3% doainh obaw eynilie
vb © bie‘ oaa alae roa thon wine ot ttewo ste
ee ‘a
hk ta ‘gate ef Vasttiow saneniiadh ne mn
hoteband? qgactd (#2areeg a d6yy Sew wend! yeas! semen’ i a vi
debeoet o¢ bea toe VTNmtety NbiMw edi «inital recog ote i
edt te rcobte’ wie 69" “rr ‘aout wow ae ‘tate Leal ciate
inti) ut yaks seca im ihe! ‘y we et vi 8 ‘ia nee
eouebitnw "te sire! waht iS Ht Rach wake it detent
atodhwehave deliv’, suemswege hive Gugettn oth’ ta: ot
wooing ‘orl? An 4. oheuEd sahara: ‘wale “te tobe moe
ee ee vega nana xto%
ait: ayant rb eeheeie oar! ainl eit tee — ;
-3-
entitled “degotiable Instruments." )
In Great “eatermn inee Gos vo Heew, 29 Ille S72, an
action wes breaght on so promissory mote which stated an its
Pace thet the considersiion wee “for the esle of & lease” of
an office on South “ater street, Chiesge. The defendant filed
® special plies alleging, in substance, that most of the con~
sigerction for the mote was o pretended sale of the good will
of the businecs of an insurance company which thet company
aftervards wrongfully refused te permit them to use or onjoy,
Whereby defendents lost the whole value of such good will and
the consideration of the note to thet extent failed. The eourt
held that under the statute above sentioned “the doer is
“necessarily thrown wide open to digclose the whele truth about
“the Gonsideration,” and that it was competent for the defendant
te Piesc end prove thet the note sued on was given, not for the
‘Qale of the lease of the effice sentioned as stated in the note,
but for the good will of the insurance company, and if such good
i wae worth enything anc wae the true considerstion ef the
anc the defendant dic not reeeive it, he was entitled to
‘B reduction to that extent in the recovery ogsinet him. The
fourt ssid: “It is impousible that this statute can be made
fre tive im any othe: way than by reeciving euch proofs; and
im receiving them, the olé rule, that «rittem contracts cannet
pe varied by perol, becomes, in #11 such cases, ineffective.”
te the some effect are the cuses of Morgen vy. Fallenstein, 27
Bt * Bly 32; Gage v. lewis, 68 Ili. 604; Mann ve Smyser, 76
“TAL. 565; oir vy. Plotomeyer, 83 111. 4205 Taft vs Myerscough,
e ’ TAL. 600, and cabo y. Himett, 178 Ills Apps 459. The sume
" le has been upplied «here the alleged failure of consideration
ef the failure of the article or thing, for the
adi me heaate fieide ote ysenetensy a 5 Adee ont i
i “eaaed = te peice sit 263" enw saiserabtanes aula. Sst
bagit gagbaster ait o0yretad etaseie xs308 Anes 0.
mise, ost. 2 dae sactd seonetedin wl vgabgolis. sale Le,
ARES Soeg 84% We sine: de has song a 6ge atom oid. 20%. Bee.
Wiwanen saslt dotate qungses eesiriyent ae Te seated
eweiae #6 oust oF sma dieriog Q3 Seagte: vila tgneas sbgenss:
ise Liaw beog dove Xe sulsv elesis edi deol ainehaet
jeueg eat .$9Lie? duedxe decd of ese ed¢ to meiéas ° a
tt Seem ede° Bomettmen eveds siesede etd etm tat
aueds tdatd alese sdg saaioeth ef gage ehhe serena |
sashasles ef iat smedeques caw 24 sad? sna ",aed30
ad? aa% com ganvig sew SG Seve Stem es 294% averg bus S
eetag ad? eo Satede as Samsldmes eehYie si te veaok porapens ha
dons down Th one qumageon epmanumad els te Like deeg odd Ot 7
si? 0 molsotabiages oua§ wie sav Sue yebdiyes disor ean | ud
et heksidso aew of ¢i4 wvkogo: fom Sk) amnbasted “san al
aa? said damiogs Yuoreses edd at énedae sesit. at, mone :
eae 9G Hae oiuéeds atid tote eldiqvoged ok J1* abies dam
hee qeteosy doe gabeoaer xd aadt yu secte yas wt aviten®
donnae aivexdaeo mediiay odd ,ole: Me odd madd 3 wal
‘.evkzgetieah gaeang deus fia al geanesed gloteg
casa oft 088 salle un Lave, peemepepen ae 4008 =m |
noliaweblames Ye emis? bogedis ess exe idiheipadipeajebie
od ue? «gatas xo eisiizs oct to oum£let od? Ye bedetel
whe
purehase or payment of ehicgh the note was given, te comply
With some stipuletion, agreement or representation made by
the eelier to the buyer. (Seerg v. Williams, 14 Ill. 603
Bryant v. jeare, 16 [1s 2893 emeneed 22 ILie 3133
Gertel v» Sohroedex, 48 111. 1333 J ump BO TLL. 277.)
Ae this ia the only alleged error discussed an
Plaintiff's briefs, the judgment is affirmed.
: AFY TERMED »
Gridley, ?. Js, and Bornes, Jo, concur.
1? = 30951
B. Le SCHEIDERHELE COUPARY,
® @6Frp.,
Appellee,
APPEAL PROG
Ve BMUSICIPAL Gort
scaaes M08. 0.. os GF CHIGAGO,
® oom, “4A N phe
Appellant. FD el
Opinion filed April 6, 1927
Wi. PHESIUVING JUSTIC’ TAYLOR delivered the
opinion of the court,
On September 18, 1926, Dolese Gres. Uo., the
defendant, sent @ #ritten proposal to E. L. Scheidenhelm
Gompany, the pisintiff te gell and ship te it approximately
16,200 oubie yards of crushed stone from Buffalo, lowe to
Phitton, Illinois, at $2.63 per net ton.
Pertaining to the fr@ight rate and how it should be
deternined and paid, the written propesal senthined the follee
ing:
"Se understand the present freight rate is
$1.68 per ton, and our selling price is based on
this rate, if’ the freight rate ie greater you sre
te deduct only freight on the tesie of above rate
should the rate be ieas, we will allow you the dif-
ference in the ae ene. rate in addition to the full
amount of freight
It slso contained the following:
. *Prices are yet eure ¢,.3.& QR Be de livery at
og = ee age sl
t Og SS ae
paid eas balis to be sent us promptly for credit,*
ey
)
4
Ae
3
\.
eyes Si
ser 8 fingh polit oumtao a in
Pe ae i” Berne Oe gee es ee
ent honevt lot aoatat SOLTHVE outereant ma
Pxu0e cd Ye soiatae
eat ,.088 .s088 sesied .O5@2 ,8f eodentet
aietashiete? ,j .% ef. eso ates. sori iee R. sae lad
“Ustanteorags a *. see. bate ifee ot Mutesal oe: e
a2 tee xq cos te sosontsss a:
og biude a2 | von ns ones Fosgnent ase ee —_— is
fentgire bre sx wliies a Pog as ;
e gibere ot Lsabewricn = — eae
fe
On November S, 1820, the plaintiff wrote to the
defend=nt requesting it to proceed to ship five cars per
Gay of the stone until further notice, In that letter the
Plaintif? steted, “we understand at present freight rates,
the price is $2.83 per ton delivered at thitton.*
Pursuent te that proprosel end soceptance, the defend
ant ‘delivered te the plaintiff about 75 care of stone, on which,
tarough come sietake, the railroad freight was charged #t
the rate of €2.70,{and which the slaintiff paid) instead
of 91.66 per ton.
On Gecember 27, 1920, the defendant wrote to the
Plaintiff as fellows:
*Gonfirming telephone conversation with
your HF. Gawit, we wish to advise that both
G8. & & snd c.F.1. &@ P, Ry. people today
advised us on ‘phone that the eerrect rate
en crushed stone carloads from Suffale, Iowa
to Whitton, Illinois is $1.68 per net ten,
fhis rate is earried in C.H.F.e Pe fsrifft HO»
Bis24 - i6C 10403, item No. 938 =nd cHEc.
Goncurrence No. 6467-3, Sy referring to our
quotation you will note the freight ellowance
1 gon upon sas £1.68 per net ton; therefore,
if you will mnke « cherge agninst thie company
on the “asie of £1,668 per net ton snd aub-
mit sll your freight bills we will be only too
glad te take the matter up with the ¢.3.84. Ry.
with a view of obtaining ® refund, as we roughly
estiuste shout seventy-five (75) cars and probe
ably at about $50.00 2 ear shich vould emount to
something around $3, 000,00,
"Upon receipt of this check we will either
endors¢ your secount, or — your approval we
will credit your sccount with euch refund throv¢gh
claim as we aay rective.*
The pleintiff heaving paid the freight cherges
te the railroad at the rate of $2.70 per net ton, mde a
Claim sg@inst the railroad for the difference between
$2.68 and $2570 per ton, and as 5 result, the smount of
ro
ae
oat ot ofete tiifaieke of osek # wedwoved mo eee
2eq see ovit gids ot hesscuc of ee 31 pateseupet ‘ta8 ae’
ect testet tad# ak seoiten sedgaet Lifes encte off te =
seeder Pitz tes’ fasestq te ied se oes: oe * _betata ‘tiatere
* "anaes Ae ‘ta harowl fab not taq ze.8h of arta tg
Anetch od¢ yenstquee: bas Seeovete sad¢ av thesett See
teida ms .ese%s to stag 8T tucde *eigndaly. alt o2 elie YY
os bagsede new Sdglext hoor! lag add ,edstein exes tiguos dt
hustaat (bf2q Yiidaieia edt doide bas) ,O%.S2. te eter a
eae BF ieoxs fashesteh = 49 eoser ats rsdnv0 e) tg aie ene
ithe
es
tes asiteers es oxodqe fos
> ited dete sodvba af dete om .
fave: ae % & st o%-
os Mitten
7 fut 2
; baw Fic ioe |
aSeo
the exeess charges was ultimately pald to the visintifs,
Subsequently, proceedings sere instituted before
the Interstate Gommeroce Commission, whereby, as stated
in the plaintiff's statesent of slaim, end not denied
in the defendant's affidavit of merits, the Interstste
Commerce Comeission, on December 8, 1924, granted «4
reduction in the rate, or teriff, from 41.68 ner net
tom, to 2 price of $1.10 per net ton, and sursusnt theree
to, on December 24, 1924, the defend-nt waa paid the sum
of $2324.03, thet is, the amount which, together with
interest, the plsintiff nor claigse is due it from the
defendant,
There was & trial before the court, with a jury,
end at the close of all the evidence, the court instructed
the jury to find the isxues ageinst the defendant, 2nd
asseas the plaintiff's dameges at $2440,23, Pursuent
therete, there was a verdict end judswent. This avneal
is from that judgment.
The only controversy of substance , ae stated
by counsel for the defendant in their brief, pertains to
the interpretation of the words quoted above, thet is,
*We understand the present freight rate ie
#1668 per ton; m4 our selling price is based on
thie rate, if the freight rate is greater you ere
to deduct only freight on the tasie of above rate,
shovid the rate be less, we will allow you the
difference in the freight rate in addition te the
full asount of freight charges.*
and whether the words, "the present freight rate,* and
*the freight rate,” mean the freight rate as allowed by
Qtientate nit ot biog stent is wae pegteds ngsexs ond
exeted betudizent eres "map thamseng sitanpeedes a
petste se | eeWerads scoivatanco sor sRae) _statexetal ede
. belmeb tox bas waieto % sneesare srttivaiete 9d? at
stetevagal odd .stives te fivabitt= «Gashasted ‘ond at
& Avtarny .ABeL ,8 ta¢esest we .aolcetemed eotemmgd
: os Gay tay BH.18 Heel .Wivet te yeder od? at Reltecber
dtie sedtenes wide devomn aff ah se? (8.38868 Yo
sit Roxio Ph seh et antale vom «Fiabe tela, ” sdaorsdat
} seis © tbe true aes oxoted isixt = ane oxedt
bogowttam£ fsue9 edt, somceve eae ffs. %e svelte eat $a bas
bus tasbasten. ‘eis sentene aemuad oct bat ot tet ett
teensy, B8,0INES: oa sugaaah att hitntatg ety: feeene
faaqge alae steanebct | haa Sokbrey * dae eredt
ee Btep sores tat sort eé
2a
batete 2 4 sonatedve Yo yaroventaod fae oat
ot extadver steted tisdt at dnabaote ede we?! aay
ete E
a teds sttede batogs sbtow silt 20 2 :
GE SEE EF Saat.
sc ie, meen ae igs ieee OH Be Ban ho)
ei ese: tiaies? desertq sdf Sastetehee ee
a ete gan sohay pnt Lien we bas suet weg OUSS8
e828 erecs te eiest oft we.4 :
ads isk wells Ikke ew ge
- gt ia — as. sree PEs
rd
yo ee ecm a
iy - ek
BR .
lt Neal a
ete
the decision of the Interstate Commerce Gomzicsion, that
is, 91.10 per ton, or the published tariff rate then
existing, thet is, €1,68 per ton,
As counsel for the defendant say, the pleadings
themselves enke thet the sole iseus,
The defendent milled several expert witnesses,
and eatechised them, in an effort to srevre that the rord
*pefund* meant, in dealing with retes that were collected
under published tariffe, s repayment ef suas collected
wupen tariffe «hich vere in excess of the true published
tariff; that the word *repsretion’ ond the word *reduction®
reiated to the awerds made by the Interstate Ccomaerce
Commission in proceedings instituted by shippers and cone
signees eho obtained « finding end judgeent or decision
that rates were in exeess of lawful rates, ond rere unresson-
able at the time end plece,
The trial judge refused to permit the introduction
ef such evidence.
It was the evidence of one Bryen, 2 traffic
manager, who it wae admitted was an expert on tariff aatters
pertaining to reilroads, thst # publichea tariff is «
‘publication issued by railronds, setting forth the freight
rate upon which they would transport freight between given
points; that it is a lawful document on file with the
Interstate Commerce Comuission or State Railroad Comwission
end is binding upon the esrrier, contignes and consi gnor;
that the correct tariff rate in effort on carloads of
crushed stone at the time snd place in question was 91,68
tet re te ner a 2 se te ot
i
and saat Yiseae bade bsg eds 20 pee <oy oft eh
sie : aot bd Lcmeah a sand gubseixe
ee POSER —_- ae
martbente ont eee jasbaster ode we ioranos. ‘a at
Wott
seseasatin srouie Kevewos belle $ nated “ er,
bros att sacs song ot droite ns at amodt | s2 tdowt se
hates {ros anes fade wosor ate w palfaob at ,Seeem
““betesfion exes te dasmysqer # eTteet & ‘ile flan “cotite
desul fu send od? Yo eapoxe ai ofed dotdw s¥¥tad mogi
taoitouber* ace of@ one Meoléenecet* Baw ond Gadd PYibaas
autemmot efegetetal ote yf ehem ebtewa ott oF Satelox
mee ene p arene w Roduditent aguthsagerq i acteatosed
ssealg bas salt ot ‘tn oes
seitoubordni oat flare at boawiad Oils flied de Sage “
onto owe: pigs gestion gSOROTs aS YC aeee
out ihe pre tieinen eH “Tvtwat 6 bh ef tas
soieeiasop beortiss espe.
abe
Bryan Wae asked =hether in eptember, 12330, there
whe & mening to be attached tothe words, *the present freight
rate," as understood by shippers generally, those Scoustomed
to the tasiness of shipping, Thet tras abjected to on behalf
ef the plaintiff, and the objeetion «exstained, The defendant
then offered te shew that the sercs, *the present freicht
rate* were generally known and understeed and accepted py
611i shippers to mean the published tariffs. the effer
was refused by the court.
We have difficulty in understanding bos there ean
arise inthe mind any doubt ac te the meaning of the vords
in the paregraph in cuesticn, By the contrect of the parties,
it is obvious that the seller © « providing that it shovld get
net, an amount equal to the difference betveen $2.83 and #1.68,
that is, $1.15 per ton free of anycoharges for freight. Tre
_-—«s: paxagraph in g,estion wes put im as a sicple formule pree
seribing not only that the freight rate of $1.68 per ton,
' with a gross price of 22.83 per ton should be paid by the sure
; chaser, which would leave the seller net 21.15 per ton, “ct else,
in ease of the freight rate ceing something elee than 21.68
per toni it would be charged, ae between them, againet one or
the other in ouch 4 way that the ultimate result would be that
the seller would receive net $1.15 per ton.
In Ligh NelisRs Vs Slosexgheffield Ge., 269 U.5,
@17, the plaintiff, the Sloss-sheffield Go., brought suit
against the defendent railroad for the smount of a reparation
order entered by the Interstete Gomnerce Com: isaiognfor
Sdgiost faenerg aad eehtOs aft oF Dedoaten od of yatnaem & ene
bonevascos seedt ,yilerersg ateqgiss 3 beote Ohms es. aaax
tieded mc of bebeside ase tad? .psdeqide te connieant ad? of
gashadiet “ee ber fetews AOivestde otf Bae tiifaiatq ed? te
#igtow? taseenq wde* jateoe oat gate wore od Sexes abe
‘yd Sorgossé Fae beotershay dae wvord \teciaes ‘or Satins
setts oe Rhian f idsitan ‘4s see of exeqehde
"© ttico id et Beiitted
CAE PRE i ae serbser
388 nent rod wines ni, perenne ge did eee
abrow adj Lo gainven odf o¢ $8 ddueh yas bale etal eadas
| sbeitesg edt Yo toattage at? @ aordsenp gi Agangetsg ect, at
fgg biveds $1 tad? gaibiverg aw wiles s@ ted? awotvds st at
283.48 baz 86.52 msended seaetettib e63_e¢ Lampe AEP AP ge
eet #tyiert wet asegeedonqas te sext sot req S449 ,et tact
oa
Hot eq 83.08 Yo ator Pdgloxd eae fade YlaO foe gat
axe et 9d Bboy et bivade set waq 88,85 eo selxg seoTy s dete
eeic tu ued taq 81.48 fon 18liee ett sveel Divan tide greends
8.6 madi onlo nmistence gated otat tater? edt 2» saan at
6 a0 fealsge .o8? aeersed o5 .bagss Reesangenincie
fede a6 Discs th. evssitis oft ttt wr i Hh
mens
wsnq atin? stqate 08 at toy iw motteiyg Mt droxgareg |
~G=
excessive freight charges, and cbtzined a judguent. The
cleim was made thst the Slieseegheffield Go. e:uld sot
reeever because it wasi mot demeged by any excessive
freight charges, but as te that, the court held thet the
consignor had the right te sue. The esurt, however, in-
agmuch as the sult was agninst the carrier, stated, "ith
the rights or equities as between seller and purchaser it
had and bag no concern, nor need we concern ourselves
with thes.* In that ceee, the court pesecd uron the
phraseology of the contract, which contract after stating
thet the price of the merchandise was £14.86 per ton, deo
livered 2t Chicago, eontsined the following:
"This*price is besed om present tariff freight
rate of $4.35 per ton. In see the tariff
rate declines, the buyer is to have the benefit
ef such deeline, In oace the tariff freight rate
advances, the buyer is toe may the sdvunce,*
After stating that the provision in question wae 2 common one
im contracts of sale, it wea beld that the consignor must
sue if goods were ecld f.0.0, destination. The court
further said;
* fhe Louisville 4 Hashville argues now that
& sale at the delivered price of 614,85 is, by
reason of this provision, the le equivalent of
& sale at $10.50 plus freight; t under a cone
tract of cele at «2 fixed price plke freight the
purchaser would be entitled tin ease the teriff
Pate declines’ to the benefit of *the decline’;
that @ decision that @ published rate exacted was
excessive ia the legal equivalent of « @eline
in rates; that under the provision cuoted the
purchaser would be entitled, as agninet the seller,
to any demges payable by the carrier for having
established and collected the higher teriff rate
thereafter found to be unlawful beesuse excessive;
end that, since the refund to be made by the car-
rier would ultimately enure to the purchaser's
benefit, no desage was suffered by the sekler by
a=
of? ,gneephut « temietdo Sus ,eugrad ddyier? eviensoxe
gen Sivcs .ob blekTtemenseiz edt tad? oben eae ste
evicosexs es qo Begennh sonieuw #1 sauce x9PGo"t
gd? gedy bied faeey ed fed? oF a& dud [ety Fdg feet
“gi eveted saute ea? “ena et Fey Es act bed Temytanoe
atie” .betade [wety ass. ete santas ane dive wae ae Mowren
zk resadoisg bas ‘oiies aero ax eshvivpe 2@ efdgit sit
savinetre wisence oF Soon tek rieenee on ead baw bed
eae seq hoeesy fiues ec) di ati —
gatéeee qedle gosrtade Site ,featdnce sat To qyotees
os ,f09 19q 88.008 sow salimedorem edt To 6 sey si ets
a peoent oe. ap hontatene seni. borewht
ee 2s sag as en
“fo
reagon of the exeescive freight charge.
The construction urged ignores the com
mercial significance of seliing «t a delivered
price, then s seller eaters 2 competitive market
with 2 standard article he sust sest offerings
from other scurees. Gn = sold £.0.b. des=
tination, the published freight cherge from the
point of origin becomes, in exwence, 2 part of
the seller's esst of production. An excessive
freight charge for delivery ef the finished
article affects him en directly es does «
Like charge woon hie raw meteriale, wYercover, the
burden of the published freight rate rested upon
the consignor under the 6111 of leding, Lowieville
sw Le R. Re & i im & Soa.
3 ate,
a 3 . Bes aS wekl a8 nae P th. eontre.at
of sale. The curchaser whe peid the freight did
#0 solely as sgent for the seller. ‘the orrier
@id sot know the previsicn im the sales cone
tracts. ith toe rights or equities ac beteren
e¢lier and purchaser it had and hes ne concern,
mor need we concern ourselves with then,"
- aw —
i, In the instant case, it is not denied that the
amount of the overcharge for freight was paid by the carrier
to the defenient, ani thet the only question to be decided
here pertains to the rights or equities se betreen seller and
purchcser, As to the ménzning of the words in the particular
peragreph of the contract of sale in question, re think
they should be interpreted the same way as similar vords
were interpreted in the L. &ii. R.A. onee. onsidering,
therefore, as we do, that the vords have « siuaple, easily
understood meaning, end that the interpretation wes a «setter
of law for the court, we are of the Gpinion thet the court
fy :
: 444 not err in its construction of the ‘contract, nor in
A Tuling on evidence offered by the defendant,
Finding no error ix the record, the judgment
APFIRUED.
O'CONNOR, J. ABD THOMSON, J. OORCUR,
bod # cs"
ce se _— |
| ; pre ae note tae borat
ould taste siahnaiond tom ai #f ree ‘tneteat ont ar
| bobieah ef a9 moifaeup ‘eiRe aa tear ta Soe <a} shes of od
han tallies asevied es enfdines te ‘wodji« ont ‘en's wi tadieeiy
Esko i isg O86 gi abtos ods Te galneen
aaids se .woiveeup at alae te tose vial O08,
aotow Ralinte oa Yer ange ed? pagenae oe .
gatvebiessS caso AS A od edt ab L bapsaatotak eae
_ thts 5 et ee SS ee
6866-31190
BERNARD &, S8O¥, for the use of
JAMES FLYNN, ERROR TO
Hefendent in “rror, HUH IOCIPAL COURT
OF GHICAGO.
. vs,
& rr nm
u
LYOW & HEALY, & corporation, and < 4 4b A A Ey
M, A. HEALY, me Heiko Us & a)
Plaintiffs in Error. )
=
rat
ot
Opinion filed April 6, 1927,
WH. PRESIDING JUSTICE TAYLOR delivered the opinion
sof ‘the court.
. This de a suit by Bernard 4. Snov, fer the use of
James Flynn, the plaintiff, in the wunicipal Gourt, againet
Lyon & Healy, and @. A, Healy, the defendants, on a replevin
bond. The cause was tried before the court, without a jury,
_ amd there was a finding and judgment in favor of the plain-
#4ff against the defendants in the eum of $400,009 and costs,
_ To reverse that judgment, the defendants have prosecuted
4 this writ of error,
q It is urged in the affidavit of merits in this case
F: ‘that the original replevin suit sbove referred to wae not
tried on the merits, but that they, Lyon & Healy, were forced
d to take a nonsuit, owing to the absence of a material witness.
Lyon and Healy having taken the player piano on a replevin writ
in a former suit and given bond, which is here sued upon,
and having taken a nonsuit in the former case, and the piano
mn ot being returned to James Flynn, from whom it was taken on
‘the writ, it is now claimed, by way of defende, that the
Le to the piano remained throughout in Lyon 4 Healy, and
*
ie i ty Su Rete - sitios Sab °§ wy nfl:
2 ¢ FSA bent? sosnicO Fig eed
ac FE oe j eb $5: i fis i: se es 3
Ye eau, dt xo? ,won .y brented ye ftwe 6 ob ** 83
ate gH Sent em AE “nie
‘eae ee . taneie som. age Lawn
vomtkelg edt Yo rove? ok tesmybet anh) zs
_satoee, bGs,.O0,.00R$ Yo mye ad? of at,
ites ane, “7 peanoten x srode reasoteiee
pa al atest Ae we avede
enone tw Ansreten a a 3e eomends
a fs ome oes
thee atvelart s ao canta seni 0a
eases
never passed to either the original purchaser, Stella A. Tune,
or to one Prank Tyrack, to whom she gave a bill of sole for
the piano, or to James Flynn, to whom Frank Tyraeck gave a
bill of sale,
There is no particular conflict in the « vidence
as to the history of the title of the piano. It was bought on
Getober 11, 1921, by Stella &. Tune frow Lyon 4 Healy, for
$450.00, and she gave to Lyon & Healy at thet time a note
in that amount, payable in installments of $15.00 on the
fifteenth day of each month thereafter, On the face of the
note there wae a clause, in part, as follows;
"The sale of said instrument is made and this note is taken
upon the exprese condition that I shall obtain no title
to or ownership of seid instrument unless and until the
Said indebtedness shall have been fully ore and that the
n
le to mW i seid inetrument r ns and shall
ty wath ent gg V4 ing, . and said’ ey
subject to their order so long as any part of that
indebtedness remaine uncaid; and it ie expressly agreed
that in ease of any default in the rayment of any installment
of interest as it matures, or in ease I shell inecunber
OF remove said instrument from my present residence without
their written consent, then in any of such cases they shall
heve the right to take possession of said instrument, and
also « right to declare all of said indebtedness dae
and payable at once, and to retain any money J may heve paid
them ae rental or compensation for the use of said instru-
ment,.* * * I will keep the instrument ineured in a good com-
pany at my expense for their benefit."
a
;
;
‘i
Sometime in the winter of 1923, or the early part of
sas, one Graves, oredit manager B6r Lyon 4 Healy, after
talking to Stella A. Tune about her account, which she stated
“she knew all shout, suggested that she sign a new note, and,
as she told him she was i111 and could not come in, he mailed
“the note out to her, and she signed it. tie testified that he
“compared the signature with the signature on the first note,
& that it was apparently all right, and he agcepted it as such,
ae? ellen te [Ltd «- oven ode mode ot stOaty? fas % one
8 Sven —. Fiet® wotw oF awel% soma of 3O | vobate edt
hare 1 seo «fh eee ee alas to aoe
eorabies ead at sok we tehuottsse omeietedT
ge tiquod sow tl .omute oft Yo oftlt oft to yserald at ot -
_ ok .yloek & soy mot? enw? A alleges xa feel Ad tedoteo
ten s ehh? fait? do yleek a nok ot eves adh bite a smilie aa
ed? mo 00.818 to stoemEietdeant af eldsyeq sient: tent at
ott TOSat att MO ~eFisaieds-dtaom dose to Yad tases te?
bs sawollot sad <teq ag coats lo a aw oxed? baal
a ar
pated ai efon atdt bus eben ot $usmurseest bias to ofse a
eA ekt2s on aistde [Lede i tadt aettiaas ye foment
| @
‘ soni fr oh nae ws ‘vs hare
\ taal isdaat Viz re treayas ont Pat: ay
rodmeront IL L.eago also ,aesutem #
thodti« Deeabicee plniees va Sovagaeeat ft
ae < sPanarsdact Bias Figs
pores ara els
4. bag. to ££. venaloeb,
ae auch Wid tae fon Yrs Aistet of bua
; a Phe eo aay eft to? molt aeltatanman. an '
tie Leos ‘pement faemottant eit osex : * 888
* .$itemed tieht tot SBEOGRS we ie
‘tw taoq Yitee ade to ,SSRL To tetats. ed md. onttemoe
/RagIe ELLOR b MOE TH tegen tb9 to, prin @
_ hetade eda dotdy ,zavecoe wed tueds sant. +R alias gt :
There was offered in evidence for the defendants,
the note of October 11, 1921; «leo a note dated Pebriary
18, 1924, for $356.82, which recites that it is for a
Washburn Player Piano. It contains cimilar provisions, as
to the title of the property remaining in Lyon & Healy, to
those in the above mentioned note of October 11, 1921,
The feoord shows that upon objections being made
by counsel for the plaintiffs, the eourt ruled them to be
inadmissible,
There was also offered in evidence what purverted
to be a bill of sale, dated November 37, 1924, by Stella &,
Tune and her husbend, for a consideration of $490.00, of certair
perconal property to one Frank Tyrack. The first item,
being the property deseribed, is given as one piano player,
That bill of sale contains after a recitation of the iteme
of personal property, the following:
Seceae dias ona balks bane on ane Healy on aforementioned
fhe bill of sale showed that it was acknowledged
“all of the ahove ping subject to ineumbrances as
before a notary public, and contained the endorsement that
it was filed of record pecember 16, 1924, in the Recorder's
Office of Cook County.
Upon objection by counsel for the plaintiffs,
the trial court refused to admit in evidence the bill of
sale just referred to.
In our jucgment, the two notes should have been
admitted in evidence, all of which were certainly sufficiently
identified to justify their edmiseibility.
.atnebao ted edt 203, conebtve at botethe: naw enedte v8¥e
, Wtayrdet betsh etem.« Gels, ,A8QE fh, wedoreg Yo eton: od
_ A B08 Bh th add aottoss dolde 88,2089 202, ala
ue gaecletvesq talinte eatataom th =. emake edger Tid
ee lt ‘Rhein inamectaieiniil aie
“gh Biles anelise}de sequ sedt everia br608t ot: ‘adotne ee
4 gilt
eset : sat ¥0 nobtat too: a rere es *
Fo i 9 Pik
; nt eh DoS REM
“ddd vl yotobae add emtatace hme yetldd i ator ae
atesbseoan auneed ak .ose@f ot aapearets breve: te belt «
Si anoy vite BE tak GRR Fe merle RS Hk. BHSES
ful CGR ie Shae Bie men? FAA
evi ratnte ot ap Ieeawoo vd wottost fo 5
i gon Oi ee: Peek Py ae ae
es bil oat sonebive at hee od beastet su90
8 he Se he yy Ric
oe) ANN Pc Rea ate ee ue Hak be 4 bith
“goed vate biwode Yo we ott Be simomgent 100, soe
Wemtottine vntatz09 exer dotdw to gh poy’
eri ace ge stetem~ehe wet
etmbs thedt .
Maka 1 ft bird aa
%
abe
Also, there appears in the reeord a bill of eale,
dated February 324, 1925, from Frank Tyrack to James Flynn:
*1 Player piano Washburn, #22999," together with certain
other items of personal property, The consideration
mentioned is $400.00,
"
; Qne Graves, credit manager of Lyon 4 Healy,
: testified, when asked if he had anything te do with the
Washburn Player Piano, No. 32909 saecount, that he had some-
thing to do with all of them at the time he was there, ond
it further appesrs from hie testimony that that was the
piano involved in the aegount of urs. Tune,
It ie the testimny of one Mareen, an outside investi-
gator emloyed by Lyon 4 Healy, that in June or July, 19285, he
Visited James Flynn in his flat at 3816 West Konroe Strect,
and that the following sollocuy took clase:
*, ZT anid, 'I understand you have one of Lyon & Healy's
pianos,’ He said, ‘Yea, I have.* I saya, ‘Where did you
‘et it from?’ Ha trad, *Z bought it from = man by the name
of Tyrack,'
Q. What did you say then?
4. I said, ‘Do you know that that piano, there he an en-
eumbrence of $200.00 on it te lyon & Healy?! He said,
‘yo, I don't. I got a bill of sale from Tyrack for
some goods I boucht from him and I understood the
fano was paid for.’ I said, ‘ell, it ien't, it
Selenes to Lyon & Healy.’ and I mate a demand for the
piane,
Rhat did he esy?
He said, ‘You oan't have it, and if you come back, I
don't want you to come here egain, ae fast a® you come
back again I'1l throw you out.’ fThet is sli there was
to
t.
er
Ye think the evidence amply identifies the player piano
ar ihe sh 3 2 are? + A aS abe Sars epee Bes ae Ye
else to iid » Bxooet edit at wtecqge Stedt annie ee.
wisteso dtie tedtage? * @8R8hq ,axuddest orate ports !
| (ufecd & sows te swganent Sibert enna m0 ‘isos
Rive. TR
*
oat al Sas tod? Yromtiee? o1e don? “etehdigs "ei fot
te ih amas” ome “to tneeses: ot ii'Setonh ate
<teoovat sbtstae aa seston eno » 26 ence esl ee inte
EY TP CML ae
£ ery bake me rp rh ee ; tinal ’ - toot sib Te 1 . Seah, % ; r
e'yLeet & moyl to amo seat ls sce es .
soy Ble -oxedt" payne I~ t.ovad E ae adam AK A
rae ORF ae Oe tt tinned 3* a
Fae | yo Bape WS na eet ec Rae Ast. Bg My #
iaodd by a woy bE
: ng sy BO exodd ,qnaka + mana ;.
i) wise of 'eylaek & a pons Py ” + oy
| sot MostyT mort siss to Lita &
Bue = Rose oe gaa ae hd ge
he edt x0? baunnb © shan T bat Tec
Dip
2 wy Pal iy FS el ge OF tee
De i ,zoad emem woy MM ohae si svad ¢! _ '
| anoo toy 62 tank ae wtiege sted 990 a . fata 4
Gaweetedd Lhe es tad? ‘tue wey words f
‘
Y ogee
" quakq ‘senate oo | odt ‘colsdinesll
oWRR LE Cherie d ty nib’ g Ciera ay
-O-
in possession of Flynn as the same piano which *as bought
by Stella &, Tune; that is, considering not only the
testimony which was given, but the contents of the exhibits
: which were ruled out.
. In the brief and argument for the plaintiffe, it is
stated that the evidence which wos submitted, the arguments
4 of counsel, and the remarks of the court, all clearly chow that
the only question at the trial was whether Lyon & Healy had
; an interest in the piano which was replevined., Considering that
7 the issue, we are of the opinion that the trial court erred in
4 that it was manifestly against the weight of the evidenee to
i hela that 1t wes not sufficiently shown that the piano in
question was the one which Lyon & Healy had ¢old to Stella &,
j Tune.
% We are, therefore, of the opinion that the plaintiff
REVERSED AND JUDGMENT HERE.
O'CONNOR AND THOMSON, JJ. GORCUR.
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103 @ 31232
FeE. NELLIS & OGe, & Corpo,
Appellant,
APPEAL FROM
Vo MUNICIPAL COURT
THE YAKIMA FRUIT & COLD STORAGE ae
CO., @ cOrp.e,
Defendant,
FIRST NATIONAL BANK OF YAKIMA,
& COTPes . a A q \
Appellee, | : ‘
Opinion filed April 6, 1927,
MR. PRESIDING JUSTICE TAYLOR delivered the
Opinion of the court,
On October 31, 1925, the plaintiff, F. E. Nellis
& Co., & Corporation, began suit in the Municipal Court
against The Yakima Fruit & Cold Storage Company, a corpora=-
tion for $5,000e00, and on the same day filed a statement
of claim, containing, in part, the following allegations:—
That on June 26, 1925, at Yakima, Washington, the
plaintiff bought of the defendant 15 to 20 cars of pears, at
$2.35 per box, f,0,bs; that $23,000.00 part payment was to be
made upon approval of the order, $500.00 per car toribe paid
upon receipt of manifest as the pears were put into storage,
the balance by sight draft against the bill of lading, pears
to be delivered by the defendant to the plaintiff at Chicago,
and to be paid for by the plaintiff to the defendant on
delivery; that the plaintiff demanded delivery of the pears,
and was tendered pears of an inferior grade and quality,
which the plaintiff refused, to the damage of the plaintiff
sense. + Bot
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en
@hlfon .a 9 wtEsately ome .B8CL QL tedotoo nO
daued. Lerytoteasit edt at tine maged: entenseene. ee 8 a
DRANG & peltt VAD, Omee. en aor ona, 1902090899
adie eine lLot, ant deka mt gatatstaoe alate by
i sot ead ae
ott motgninest ombist ts yaset “as bees ‘0 0 tat
atu sy iva ale
tm yotiaeq to axso 0s ot ar tu sbiro tob edt to tifguod 9 tisatalg :
od ot maw $nomyad iraq 004000, Sh todd qaoet sod 3 T0q hata ‘
Rha sdiot m0 79q 00.0088 . bro) 86t 20 Lawonaem avqy “a
<2garote etait tog stow a TRHG odd Be saokiasn to. ‘eqns | :
ezecq «gatbal to ifid od teniege tarb tite we se asked ee
eogsotdD ts tg aisle edt of tasbaste edt ee pendtcs os of
ao tasbasteh ext of ‘Yiudatal of edt ee not blag ed oF | aa
eetsog elt to yroviteb bobammeb Plentete ods feds iw nove.
eettane hae italic toinstat a8 * mange: 2b at
mae
in the sum of $5,000.00.
On the same day, the plaintiff filed an affidavit
for attachment, based on the noneresidence of the defendant
and an attachment writ in aid was thereupon issued, and at
2:50 Pome, the same day, was served on the First National
Bank of Chicago, as garnishee, On the same day, interroge~
tories to the First National Bank of Chicago, the garnishee,
were filed,
On November 10, 1925, the First National Bank of
Yakima filed its eppearance as an interpleader,
On November 13, 1925, the First National Bank
of Chicago, as garnishee, filed its anawer to the igterroga-
tories of the plaintiff, F, E. Nellis & Co., ‘The answer
set up the following:
"On or about the 17th day of October, A.De
1925, it received by mail for collection from the
First National Bank of Yakima, Washington, three
certain drafts, each in the sum of $684,46, drawn
by the Yakima Fruit & Cold Storage Company on F,.
B. Nellis & Company payable to the order of the
First National Bank of Yakima, Washington; that
with said drafts it received instructions that
upon receipt of the payment of said drafts to
eredit the amount so received to the account of
the First National Bank of Yakima, Washington,
kept with this Garnishee, The First National
Bank of Chicagos and that thereafter on or about
the 2lst day of October, A. D. 1925, a representa-
tive of F. E. Nellis & Gompany appeared at the
window of its Note Collection Department and paid
to this Garnishee the sum of $2,053,38 ami took
up said drafts; and this Garnishee how holds said
sum of $2,053,38 for the account of the said First
National Bank of Yakima, Washingtone"
Tat on said 2lst day of October, A.D,1925,
and within a short time after the representative
of F, E. Nellis & Company paid and took up said
drafts, the attachment writ inthe above entitled
caus® was served upon this Garnishee; that this
Garnishee thereupon wrote to the First National Bank
of Yakima and informed it of the service of said
attachment writ upon it, and im due course received
an answer from said First National Bank of Yakima,
¢ivebitis ne elit Tiida Lele odd .yab omea ed? nO
gnahae te’ edt to eonebtecy~n0n od? mo heasd einem sit te sot
ts baa ,boomel foquen eit aarw bis at tice tnomdo atts ne bas
fenoittay tetit edt ao seen ane <a suse ‘od (ate aaee
~amgottetal ,yab mse ont a .eodatasay ae amanat to suse
geedetarag oft ,ogn0idd to Lewtl Lane fat tens’ ait of anreet
obel tt a Tew
to tae IEMGivet secht oot. (2b. Of rodaevel oO
tebseloretal as as someteeqq¢s ett belit amtasY
AneG Fanoltak tort odd ,AS@L Bf wedmeved ao
cr Suit edt of towens at! balit ,9edeinrag a8 ~oya0id to
! TOWNES ott “4900 $ ott Low a a thivaiele ont ‘to =
eee gttaol fot out we ton
ova ,xedetoo ey yab SIME ed? guode xe aQt aa
edt mort eoltoetioe trot Liew yd bevieos: ¢f ager A,
co anerstnig ‘guitdedW ,omiiay to dae Leeotited: tauky ie)
wath * ‘Bas to mse edt af doas ,etterb alstceo
of 20 Yoagqaed egarete? biod 4 thet setiey edd od
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we ‘detetene: eet bn rye | one ea. cid ‘i
ite _ faao Be ay eae ted
bise Yo eotvree edt
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& ,
moe
Washington, in which said answer the First
National Bank of Yakima informed thts Garnishee
that it wes the owner for value of said drafts
and the proceeds thereof; that accompanying said
answer this Garnishee received an affidavit of
E. Jd. Lemke, Assistant Cashier of: the First Nat~-
ional Bank of Yakima, in which said affidavit
the said E. J. Lemke stated on cath that the
First National Bank of Yakima was the ower of
said drafts and the proceeds thereof,"
"That at no time has it been subject to
the instructions or directions of the Yakima
Fruit & Gold-Storage Company, and that so far
as it is advised, the drafts and proseeds thereof
are the property of the First National Bank of
Yakima; that at the time of the setvice of the
writ of attachment, it was not indebted: to the
Yakima Fruit & Cold Storage Company, nor has it
become so since, nor did it have at that time,
Or at any time, any goods, chattels or effects
in which the Yakima Fruit & Gold Storage Company
had any interest.*
Attached to the answer of the Garnishee, the
First National Benk of Chicago, is an affidavit of one
Lemke, Assistant Cashier of the First National Bank of
Yakima, that the moneys sought to be garnisheed by virtue
of the writ of attachment were at the time of ite service
upon the garnishee, the property of the First National
Bank of Yakima, and not the property of the principal
defendant, the Yakima Fruit & Cold Storage Company.
Also attached to the answer of the garnishee, the
Firat National Bank of Chicago, as an exhibit, was a copy
of an assignment from the Yakima Fruit & Cold Storage
Gompany, dated August 6, 19255 to the First National Bank
of Yakima, which is as follows:
*" WHEREAS, we, the undersigned, are engaged in
the business of buying and selling fruit at Yakima,
Washington, and the FIRST NATIONAL BANK OF YAKIMA
is assisting us in financing our business by loan-
ing us money and advancing money on drafte drawn by
us on our customers and on bills of lading issued
yom
: farlt o¢¢ cowene biae dolid@ at ,wotgaidest
eodaints) add? bearotnl suideY to Anes Janmeitan .
atteth bise te erlavy sot teawc edt eaw ti todd
4 oh. gach tego tedt steered? aboooorg ont baa
ie oe Hhovieost Sedetatad ala? cewans
a ste aimee ail
t bE RRL og Maw)
edt tad¢ diso wo hotata edmed .G all wr biee
te tomwo edt aan smld ay Bg inet Janclsak ay hy inves
* teweds abesootg odt bas at
ov tostdue moed tL wad omls, on 38. brn Rn
‘gauite’ edd to pric tg xe: weap yeaa yet ‘ous
eet On tady Baa , & F A gtoubt
toexe dt absse ory hae bre) ay pag ia Retiwke fy b- i
te aaah Leovulte tari odd te yinaqore vi
edt to eolvitee otf to omit edt ta |} t
edt otnbetdehat ton eew Ft ra Mayo aie sae
%2 ead tom .Yasquod Maatote Llod &.thv zl
eats tedt 3s ra wld bib ron te ps oe sacoed
_. hon the 0 eles poy) poe #38 -
‘Yoni boaie om & obit ms yf ye
xt: ‘etoatepat ; Ws Be baat
Ost .aedebared adt te Towens ott of badoadta |
. gao to thyshAtts ne wt .opsotm to dagl Lonoktee tock
Ro Anes Lemode gh Qetky ott Yo “veidesd ¢astatewa ,admed
eerie Ww beodelats, od ct tiguor syeron ent pads ola a¥
eolvroe att te outs edt ta hdl inontoatts to thew eat to
Lemcotiait tends ealt te ytreqora ould: eoorinbaesg, ens ogy
_teqloging walt to, vizoqoxg od, ton sana eubtet 26 dae
} chaaeaaed aasiora bod 8 tus antsist feed ‘etasbaoteb
ee 4
ott wbiblatie ‘edt to xowons, ent oF. bos. pu
Wed 6 Raw .tidides as ao woga0t dy To. dao ano bt ait santy
ogsteda bLod & thee emtiay odd most sae wy te na S
dag Teaoitek feud of of a Me sags, nai me per tie
woes
by the railroads for shipments of fruit
sold; and, i
“WHEREAS, in the course of business,
we ie Sage i deposit drafts drawn on purchasers
of fruit with said bank for collection ard we
desire to give said drafte and the proceeds
thereof as security to said bank for moneys
loaned and to be loaned or advanced to us as
aforesaid and for future advances;
"NOW, THEREFORE, in consideration of the
premises, we hereby assign, transfer and set
over unto the FIRST NATIONAL BANK OF YAKIMA,
any and all drafts and the proceeds thereof
which we may deposit with said bank for collec-
tion or otherwise, and any and all bills of
lading attached to said draftea, and we do
hereby authorize said bank to collect said
drafts and apply any moneys so collected to
the payment of any indebtedness we may owe
said bank, whether due or not, giving said
bank full power and authority in the premises
to handle said drafts and bills of lading,
make said collections and apply the proceeds
thereof as it shall seem best, it being ex-
pressly understood that said bank does hereby
reserve the right, and is hereby authorized
to forward iteme for collection or payment
directto the drawee or payor bank, or hace
any other bank or agency at its own discretion,
and to receive payments in drafts drawn by the
drawee or other banks, and except for its own
negligence, this bank shall not be liable for
dishonor of drafts se received in payment, nor
for losses thereon, If said Bank incur any
expenses in collecting said drafts or realizs-
ing on said bills of leading, we agree to re-
imburse said expenses to said bank, including
any attorneys! fees that it may pay, and said
bank is hereby authorized to add the amount
of such expenses and attorneys' fees to our
indebtedness and retain the same out of the
collection made by it."
On December 5, 1935, the First National Bank
of Yakima filed an interplea, setting up, among other
things, that the money due upon the three certain bills
of exchange, @¢ach in the eum of $684,46, drawn by the
Yakima Fruit & Cold Storage Company upon F. E. Nellis
& Cos, the plaintiff, and paid by it to the First
Hationeix Bankx osx Chivas ROS WH THE” PLOHELTY* OF* FHEX PLES
“he
! timk? To atrowy ide 202 ebsoniion ote ‘e wi dh
| . gb ss avg
gaseatasd to se ns nt «SAsiaay®
etescto wig to swath ef aog i¢neupert ow
ea bie mertost ion tot dad hiss b reiea ‘Cindt to
| ghesvorg edt fume atteavbrhise erig of etleob
Byesos TOU Anal bisa of yituoee. as Yoorodt
a2 ay oF heonayvhs xe Seneol od o¢ baw ponaot
gsoasvbs erotet cot base bisserots
ert to etdeunh tubes af, SOTA GN? WOR"
eee bas tetaaest fees ywWored Ow ,coalmexg
i ¥ GO MwAS ITAE TERLY edt ota cove
eels 50% duad bise dtiw ¢ieeqel yam ow do tite
te eflid iis bas yore bane ,oaletedto yo molt
0b 68 hae ,etterh Sia. bo Deuoadta gaibal
Joiee tooiloe ot dasd Aisa oatrodsus weored.
gt My cette ot o& BTenOm See eee yiogs bee et tath
oto Yau ow saoubetdebal. yas te tasuyaq edt
~ Bige: gaivig ,toa 10 ub temtedw .dasd bias
esalmerg adt al ytirodtue bos sewoq Livtodaad -
eeatbal te afiid bre atterth bias efbned of
abessotg edt ylaqe bas amoitoatiice biae gaan
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‘tot eiveti od ton {lade aaed etd yoonegtinem: >”
wen <tmoayeq ai bevicoos ce st tecb fo wonodalh
‘Yas tyomt shat hise Il .neeredd eoeeel Tet ©’
mah Leer to atierh bine gaivest{foo at seenegxe =
eet OF eOTsZe OW _ emg po eifid bise mo gah
econieet bias of suoaxe bias orantal ae
me te yey yam tf: ph sost 'pyenrotte yas °°
pt ant bha ot hoalitodive yoerod af dined
m0 ot eset tayortrotts bose sesmeaxs towa To
‘om te tv emsa Siig ‘ahstex has erombetdebak
"tt yW oben sottoetion
seem Lamotte tartd oct (Beer ,@ sehibesneae Bs aia ra
allt atadieo serdt ent doQe oub yonoe sat tag .agatde
od yd avanh Baten to mue ont ah. feat ~%gustoxe to
(ation a um soges yas sgarote ‘1D & * os Sher t Peal
tant ode ot tt ve bk: hana \Mittatarg: e400 &
“Boadtodtus yWored at das tipia edd evaeese
rondo yoows pau guittes .«elquotal au DOLE? eetasy to
“reaeusmsen ate ce see ie
ad
National Bank of Chicago, was the property of the First
National Bank of Yakima; that the bills of exchange were
purchased for value in due course before their maturities
by the First National Bank of Yakima; that the moneys paid
thereon by the said R. E. Nellis & Gos, Plaintiff, and
thereafter sought to be garnisheed by virtue of the writ
of attachment issued in this cause, were then and at the
time the writ was served upon the garnishee, the First
Wational Bank of Chicago, the property of the First National
Bank of Yakima, and not the property of the principal
defendant, the Yakima Fruit & Gold Storage Company, The
interplea prayed that the court adjudge that the property
sought to be attached and garnisheed, ought to be released
therefrome
On January 8, 1926, the plaintiff, F, E. Nellis
& Oo., filed an answer to the interplea of the First National
Bank of Yakima, It denied that the three bilis of exchange
were the property of the First National Bank of Yakima; «©
denied that they were purchased by it for value, or that at
the time of the suing out of tle attachment writ, they were
the property of the First National Bank of Yakima; that if
at any time prior to the attachment they were the property
of the First National Bank of Yakima, the assignment to it
was withowt notice to the plaintiff.
It further set up in its answer to the interplea
of the First National Bank of Yekima that it, the plaintiff,
had demanded delivery of the pears, but that the defendant
had refused to make delivery, and in lieu thereof had tendered
delivery of pears of an inferior grade and quality, to the
| sexta odd +6 yineqong adv sew yegeotgd to inet Lemolt ae
2tOw agnadess zo al tte ode dads jeniaay 2 rtd Eamost al
webe Emad siedt sorted aerwor ed ak euler rot bowastozug
biog wyonom ond vend qamsiey Yo dass fenoitai santt ode a
bas tHtatate 5600 4 aillem .e 6H biee it ac eooxode
tixw edt to outaty v heeds tar oxi of tfguo8 190 2aero dt
edt wa batt neds eroe esanieo aki at bevasi “tasusioad te to
terld wate” seodnterag ort aogy poveoe: ao taaw. nat emit
fasoiten tarde eat to Uroqore oat gog.abieD: to. some fano2ée |
faqtontey ott to yeregore orig” gor bas amatet to dash
out ago aherers ‘ple a ttt satis out ‘stanbaoted
Ywregorg ase tent aghothe twos) ond tant peyatg solgrodsi
beasoler on of witysro shondatatey bite hattontés of or 2 fgvoe
- sorterost
eille® 42 “at wHhivaiate writ Ose. oe wavs 2
{anoitel terzt mt to aeiqretak o os reweas ne. oh 00 8
egaatons to allid corde: aut tad: betasb th womthey te Angeh
* jauetXe te wea Lomo. at tors ot to Wroqora, ot stew
te tact «o qeuter 0% th ve beeedonaey: oxen vost todt ‘botaob 7
exew yet yetew tnesoatds eft te duo galwe ods. te onus ont
Rl tadd peu lxey to Aus Lao £9 gent’ ott to wrsqotg edt
YWragong oat ay ow yous trons at te ends oF ‘ceteq ‘Onkt yas te
ti ot tomy toes ests Amba te And Samo tt ai text sat ha
| “sthttataly oat ot sotton teonittw om
te Lae
Bolgtetal ett of rowers off ak qu tee ceodtuwk g1 "be
eltitataig ele 8.2 dads aw 7 te det Lemottet ‘text edt Yo
tasbrotel edt gest ti aeag oft te eeveteb beobramab bed —
borshaet bal Yeorsdy Well mt tne yreviieh eam ot beaten bad
—palt of .yetianp bas ebawy toizetal as Yo areeq to yrevitob )
Hans 4
VO tte ith) Re aE ae
‘Sol Pls Reise Cee ob
mie
damage of the plaintiff in the sum of $5,000.00,
On January 39, 1926, the claintiff filed what is
entitled, "A Traverse," in which it admitted that, on
October 31, 1925, it F. He Nellis & Co., paid the First
Wational Bank of Chicago, the Garnishee, $2,053,38, but it
denied that the money was held for the account of the First
National Benk of Yakima, It admitted that the drafts were
attached, but stated that it had no knowledge as to whether
or not the First National Bank of Yakima advised the
Garnishee that it was the owner for value of the attached
drafte; and that it hed no lmowledge as to whether ofr not
the First National Bank of Chicago, Garnishee, was indebted
to the Yekima Fruit & Oold Storage Company at the time of
the service of the ettachment writ,
With the pleadings in that form, there was a
trial before the court, with a jury, and at the close of all
the evidence, the court instructed the jury to find the
issues as to the olaim of the funds in the hands of the
gernishee in favor of the intervening claimant, the First
National Bank of Yakima, and that the right toxthat fund
was in the intervening claimant, Pursuant to the instruction
of the court, the jury brought in a verdict, and judgment was
entered in accordance therewith. This apped is from that
judgment.
At the trial there wos offered in evidence the
deposition of E. J. Lemke, Assistant Cashier of the First
National Bank of Yakima, the interpleader; the three drafts,
and the assignment of the Yakima Fruit & Cold Storage Company
to the First National Bank of Yakima, which was attached to
1904000 «if to mua om at b tttemtatg ire | % ae
ef ¢atw hetit Phitgiel¢ edt .@8O@L 4e8 yteragh a 690005
«tO a tedt bottinhe gt doicw af “oumevert A* .beliitinis
text’d ads bieq ..ob.s abl lei oh UL th gS8OL .Ie redoreo
32 dud ,88,4820.9% .sedetated ond ,ogsntdd to cine tanobeen
sari] edt to tavenpe sdf sot bled aew yenom edt sail: Semkeh
otew af Leh, odt edt, bettinbs #1 .entieY To Anat Snaps
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ton xe gedtedy ot os. eabelwosl oo bad tf. dace bga ques tesh
beidebal any ,sedelate} ,ogsoldd te dngG Lanoltal terit ed?
to auld edt de yoaquc® sgarete bind Adivtt sults edtvet
: wtixw ¢asmiostts edd to eodvise io at
8 gow ovedt yaxot tardt of egnibeels edt dt dT
cis te eselo oft 28 bas <ytrt 2 dein _#tusoo. std exoted Leint
odd batt of yxal ond Dotoumbens tow ont, ,consbive edt!
edt to shasd sdt at ehaet edd to mtele ent of ma oro
fant odd ,tammietlo gataevsedat edt to cowst at sodatmeay
—baut tedtiet tdgit ocd godt bas ,amisdey To duet Iaaottell
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sav toomgout bas .toibrey sat ddgvord yrut. odd ytxus09> oth: to
tet mort atfeqqs aint, dt twerodg, epmabreon s 2) boxetae:
hs . teomgbat.
oat. gomebive nt bezeito, bcd ered | pain seks | ‘
tatil act Yo tefdes> tustateed, wedged: .b Re noss teoged:
eStisth soxrdt oft ATebsataretas dt combicy Ye. nas Lemo.tt si
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of podoatt4.eaw.dotde samtlat Ro tan. amo a a0RE 808
a
the affidevit of Lemke,~which affidavit itself is attachéd to
the answer of the First National Bank of Chicago, gernishee,
to the interrogatories of the plaintiff,
The evidence of Lemke is substantially as follows:
On, or about, August 6, 1925, the First National Bank of
- Yakima, received the assignment, a copy of which is set forth
above, in connection with the anawer of the First National
Bank of Chicago, garnishee, On Ogtober 8, 1925, the First
National Bank of Yakima advanced credit to the Yakima Fruit
& Cold Storage Company, on & draft with bill of lading
attached of F, E. Nellis & Co., of Chicago, the plaintiff,
to cover a car of fruit, in the sum of $684.46. On October
10, it advanced a similar credit a second draft for another
car in the sum of $684.46, and on October 15, another similar
oredit on a third draft (for another car) in the sum of
$684.46, The drafts were ordinary bank drafts, payable
to the First National Bank of Yakima and drawn on F, E. Nellis
& Oompany of Chicago, by the Yakima Fruit & Cold Storage
Gompany. Order bills of lading accompanied the drafts
covering each car in question, and also invoices, At
the time the drafts were drawn upon F. E. Nellis & Coe, the
First National Bank of Yakima made payments for:the full
amount of the drefts by passing the amounts to the credit
of the Yakima Fruit & Gold Storage Company, and those credits
have since been withdrawn by the Yakima Fruit & Cold Storage
Company by check, The First National Bank of Yakima has
not received from any one, the proceeds of the drafts since
the payment was passed to the oredit of the Yakima Fruit
& Gold Storage Company. It expects to be repaid by payment
ef the drafts, which the First National Bank of Yakima has
Yes
ot bodowetts si tiseti tivebitts sik pisihciaen to tivsbitts ot
attigateale ech £0. anizotegorretat edt of
rewortot ee yLisitnetedue af eitmed to éomsbive aap °° 8
tO ane Lonokte dated odt .aSCL (8 PemguA yttods Yo" Lae
decot tea et doivw to yqoo s cinommtess eit boviecse ‘anhiat
Lanett al text add Yo setene oot d¢iw aottoommos mi _bvede
texkt edt ASE 8 ‘sedated ‘nO ,oodalivtay e0g0 tad” “to ster git
ete snide ant of tibero besoasvbe mmidaY Yo daef* Lakokd pit
garbet te {tid detw vtech & 20” oe wgerote Boo %
eMitatele att £09 0.860 ‘to (00 8 etfien .% .t to bolipkers
xedetoo a0 8b 28BH to mie ed¢ mi pttorvt to te 2 coveo Wt
xodtone 0% ttexb beoose « #ibew cettuta # doomavhe $f {OL
satimie tedvens ,8f tedodoO wo bas ,8b,000) tO aia ie KE td
to ave edd at (tao noddons not) #texb built 6 a0 tibex
aideyeq ,wtierh dnsd yxaathro oxen wttaxh edt s94.d80$
atifel .& .% ao memebd bas sadsey Yo Ane Lamoltel tentt adt of
SgHTosa bigd B tiowy ambiey edt yd ,oysoidd Yo ymaqued
ot texd adt belusqusoos patbal te afltd asbi0 .ymasqe
tA ,eopleval osis jae ,soiteenp al we dose.
amt ,.60 2 atifek .2 .t moan ayerh exrow etisnd od anit ed
fiut edtexo® atnonysoy eham amliseY ko Jasi, Seen textt
thers salt of atmuome oft yoiseag yi attend edt to tavems
atihoud ovoitt baw .yasqacd egazos8 bod. 4 tivxt smixeY ede To
egerors blob & tinxd emidaY oft yd avathdtie need eomie oved
eed snixeY to anal Lamottalt erly ont stoodo yd yrsqmod
eonls attend odt to abossoxg add m0 vse wort bovteoes tom
if thu ai te ede to ¢tboro ott ‘od besesy ase sremyeg 6
* taoeen qW biaqer od of ateoaxo #t° “Deaeqned phenee
Wil and ambisy ke fase ‘fanottal fexit orl} doldw ,attexb odd ‘to
OE ON AG a. ASR ian? ys wi ai hansen 1 ARR sah
ee
=f
been advised by the First National Bank of Chicago has been
MAE
The Yakima Fruit & Gold Storage Company has a check-
ing account with the First National Bank of Yakima, These
particular drafts he, the witness, himself persoyally re~
ceivéd as Assistant Oashier, The Bank was in the habit
of receiving similar drafts at the rate of one or more a
day, On the day the drafte in question were deposited with
the First National Penk of Yakima, the Yakima Fruit & Gold
Storage Company was its debter. Such debts being evidenced
by promissory hotes, How they were secured, if at all, he
did not know. The drafts in question were received by kim
from the Yakima Fruit & Gold Storage Qompany, and the amount
of the drafts placed to its eredi4 on the books of the bank
in the checking account of the Yakima Fruit & Cold Storage
Company,
He was unable to state for what purposes the Yakima
Fruit & Cold Storage Company drew okecks against the account
to which the proceeds of the drafts in question were oredited,
The proceeds of the drafts which were placed to the credit
of the Yakima Fruit & Cold Storage Company were available
for any purpose it saw fit to use them, The First National
Bank of Yakima received notice that the payment of the pro»
eeeds.of the drafts was being held up on October 21, 1925,
by @ telegram from the First National Bank of Ghicago, and
on the same day one of the officers of the First National
Bank of Yakima telephoned the Yakima Fruit & Gold Storage
Company to the effect that the funds had been garnisheed,
The telephone message was sent so as tc be able to gain whate
im,
Mee
assed ead ogeoind to Ano Ingoigen texzt st yd beaivhs ased
Koodo & asd Yasquod egarose bloQ & tivz'l emlagY od?
Seeer “san iale te nee ingot? eit tant’ ant de tw tauvooos 7”
~8T Uiabonrem treentt enead ia ttt aed ‘ad taith xaiuo itkeq
| vided oat a eon soe edt + te sie.00 taste tend ae ‘baviee
& stom <0 ‘a0 to stort edt t6 at lexb zaLinte patvionex ‘to |
dite ‘hed lecyeb | eTew ‘aotteoup ak ae tox ult we ‘ont 0 “
BLoo 3 tient ‘smide® eat “een they ‘to woe Tonos ait fart ‘ous
beonsbive gated atdab owe seoddeb abt aw yasqned ogaxota
1 ee tp Hee
ad ite te tL betunee Stay qo wont eactori Ytosainerq vw
i Beth hia way
mis ya bev foos'e eTow notteaup ad at texb edt “Moa wg bib
darome odd bas ateeanqaed egstota bob a a hoet ante oat sox
dand ot to axoed add no ¢iboso oth of beoalg at texb ode to
sgetogh ‘Bioo 4 tre outtsy ody “te tauooos 2 gatioedo ot at
Deh
“
ens wn eee wee oe aa hae,
ant ts Sot aesoyrig Tade x0 otetp. ot 9 haces aan ox. dt
tascoos edt teaiags, aio exo woth, Kawano, egexes8 Lod. plied
bey ibero stew motion, a2 avieth ed} to abascorq edt dotew ot
fiber edt of Deoaly ore” Helin px tasb 9%? to, oheogona geft
aideLievs TOM Yisgroh sweroth bled & tiuxt salaey, emf. Re
Lanett te2:%.ocT. med? say, ot ¢23 yaa, #2 pooqtug. vas x9
_ etd, edt To tromyeq edt ade. eo tdon bovisoet amiteY to. dong
B80 £8, redoted #0 qu bled gated gan mtTeRh, Silt, X60. abese
‘bag, e0ge0idd to suef Lenoktem tert edt mort, awKgs Loz adh: xe
feomotsell tackt edd to axsoltto ont. To eso Yeh: emse, ods ae
egarote blod S. tinet amixay att Reaodgeted sshionninsti Cre
_ sbesdelatsg goed ped abawt eat tent.
otedy alm ot olde ad ot 26 08 sme ine samn srdentes ont
URE ah: OO
Be: Bras 2
= Gree
ever information the benk might get as towhat reason
there might be for the garnishment of the funds,
The drafts in question have not been charged
back, nor taken up by check, The matter was held in
abeyance until this cause is terminated, "waiting for
the release of the funds for our account." Wo entries
of credit or debit are being made, or will be, “until we
secure the release of the funds." fhe First National
Bank of Yakima is relying upon the Yakima Fruit & Gold
Storage Company to reimburse it in case there should
ultimately be a loss,
The three drafts were, except as to date and
amount, substantially as follows:
"Yakima, Washington October 8, 1925.
On Demand Pax to the order of
FIRST NATIONAL BANK OF YAKIMA, WASHINGTON $624,46
Six HUNDRED EIGHT ¥ FouR & 46 LOO, - oceccsvDOliars
with exchange
For car No.NP 93248 Bertletts Lot #216
7 ' Charge to account of
F. E. Nellis & Company
Ohicagog Illinois,
. YAKIMA F R UIT & COLD STORAGE COMPANY
By W.A.Berg, Pres.
On the face of this draft appears the following
by rubber stamps
"May hold for arrival of goods*
"Surrender documents attached only on payment of draf +"
"First Nat'l Bank Note Teller, Paid Oct.21,19385 Chicago,1I11"!
"Coll. Oct, 13, 1925,"
"NePe 2-1," ji
On. the reverse side of the draft appears the
following by rubber stamp:
i
senses dniimct ea #95 tytn nod oid sottametah owe
-sbnut od? to taemdetare oft cot ed tigim oredd
“beytade awed ton over ao ttaosp ak at texb at
ma bled eaw sod sm ont? ootio we os aoied ton oad
tot Balt ten" sbotadluzss at oause atdt Liter sonsyads
ow Litas" aod iiiw xe oboe galed ete ‘tideb ‘to tthero to
| ‘femold ott ¢etri edt "sabaut ont to oaaolet ode exon
_bivode sxedt on0 at ob ‘eatwdaton cs Wa
ER ae
Neh AnH Ges ‘t yh mz
w88CI .8 redoio0 motgatdesh yantdey®
to zebto ae vole “f hanna err
GS, A908 MOTOUTBRAY . {O Was AAMOITAM PARLT
ies hae UR XB
Ota [LO desis fda OOLE Of ¥ Fai»
RES) tod abtetdced BAER hye w90 TOF pc
he ic ae oe ana ei Revie 7% ‘ehae
Prag & Ath Lely. ReDy 9:
0h
gemboms ff gg 20 tf
MRATHOS HOAROTS MEQ | & Try A @ AMTRAT Fo 95 RORRTSRR RRs, i ey
BOTT TOE oA i ‘ve
gaiwo {fot ede ersecs eterb eb io coat ‘ete —
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k tf we le Lae
nits 3 ? T vot poids
ry ee PAE ier oe Bag, bia
ppeeitna se se =
npiics ¥ ‘ Smeal ay
4 NELER ene Oy ad ole eteSLo® ° ae : marae |
as
| hid
Lay oat eel * ie NH, SOR i haiti i ge.
agittue ae WV, taudoaa tH0 rok sbaut ‘edt to ouselex ‘te
pied $ thee suey at moqu galyler ak “aaiktat | bal foes
eeoot aod ware
bas efab of sa tq9pxXe ,.orew sik sini: ok mit pie’
: pawel fok ag whcctastabnilis stauons
10...
"Pay to the order of any bank, Banker or Trust Go,
all prior endorsements guaranteed, Sept. 8, 1925, First
National Bank of Yakima 98-32 Yakima, Wash, 98-22,"
It is contended for the plaintiff, F. & Nellis
& Oo. "that on the broad facta in the case, the money in
question does not belong to the forwarding bank." With
that we omnot agrees The plaintiff put in no evidence, and
as to the material facts in the case, there is no controversy,
There is no doubt that when the Yakima Fruit & Cold Storage
Company deposited with the First National Bank of Yakima the
three drafts; endorsed in blank, they became the property of
the bank, Anderson v, Keystone Supply Co., 295 Ill. 468,
Doppalt v. National Bank of the Republic, 175 I1l. 432,
Further, when the drafts, endorsed in blank, were sent by
the First National Bank of Yakima to the First National Bank
of Chicago for collection, with instructions that upon receipt
of payment of the drafts to eredit the amount so received to the
account of the First National Bank of Yakima, the title to
the proceeds,when the drafts were paid, vested at onoe in
the First Netional Bank of Chicago, and it then became the
debtor of the First National Bank of Yakima in that amount,
Anderson v. Keystone Supply Co., (supra), In the latter case,
the court said,
"Furthermore, the decided cases establish
the rule that when # negotiable paperis endorsed
and transferred before maturity as collateral
security for a loan of money then made, the
pledgee who takes the paper, without notice
of any defense, is a holder for value in the
usual course of business,"
There is no doubt, under the law, but that when the First
National Bank of Yakima accepted the three drafts with bills
l=
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ai yserom ont sneee ode at atost baord om ao “pede 100 4
atiw tone guibzewzo? ert ot guoted #on n90b noLtaeup
bas ,eomebive om ai tug Ritalsle adf _hoemgs tore ow tess
“Yeroverdnoe on at ered? sae taal ab ‘etost tabted su ote os -
egeto7ge BLOG & tivrl satiety ont octw dads ‘tdusb on at oxodt
edd smlisl te ange Lanolt sh text? ams de. kw bet teoged: ‘rand
te yar ccoty edt amsoad yedt einatd: ‘at beexehae ottorh: wordt
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uneG Lame tt git tax lt edt oF mmkey to dagti fenoltgh texil ort
tabeeee nogy tent snottosstant dt bw woltoelloo bei Sasekdd te
ant of bevisnet oe. ‘tavois ie ‘gtbere: oF atterh nit to taoeyen to
or elt it ott oubie® ro inst tenedt git torrt ont te tawoons
mi gono te hetesy bitae’ exer at taxb, eult aedw <abssoorg edt )
edt ameoad orci tt bas 20.50.40, Yo: sad Lanoteeistentt ede
stnyons ted? al amide To: trae: Lanoltel #et2% oft to xotdeb
- +¥_gommebaa
+ yblse daroo pit
.9aee tTOstel ode gt .(etgee) |
» pain to sta efaneton ne iste pau See
ait | ont
sage aLL8 tye fasten ot 4
ett ~ehsm ge sacs’ Ae tee i OR BE
soliton duodtiw .reqsq edt eo ae, Octy
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ee ‘,euemtiens® to eerwoo Tava
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fextt oft modw said ted .wal eile ‘vane “tduob om ef ore:
eilid dtiw etterh serd? sdf hetqeove emiteY to tad Lenoltol
-Lle
of lading attached, it became the holder in due course, and,
as the court said in the Anderson case (supra) “It took
title to the goods described in the bill of liding attached
to the drafts." It follows, here, therefore, that when, on
October 21, 19235, the plaintiff attached the proceeds of the
three drafts in the hands of the First Netional Bank of
Ghicage, the garnishee, the Yakima Fruit @ Cold Storage
Company, had no interest in them, and neither they nor the
proceeds thereof could be held to satisfy its debts. The
court in the Anderson case, Quotes, with approwal, the
fol lowing;
" A&A bank acquiring in due course a draft for
the price of goods, with the bill of lading attach-
ed, is the owner thereof, and theproceeds in the
possession of another bank nicht the draft
cannot be attached as the property of the seller,"
(7 Corpus Juris, 617)
fhe assignment of August 6, 1925, made by the
Yakima Fruit & Cold Storage Company to the First National
Bank of Yakima, contains such recitations as dedinitely
show that it was the very punpose of the assignment to
give the First National Bank of Yakima full and complete
authority and ownership as regards just such drafts as are
here in question; that»ahthority being given, as stated
in the assignment, in order that the First National Bank
of Yakima might assist the plaintiff in financing ites business
by loaning and advancing money on drafts and bills of lading.
The assignment contains these words,
“We do hereby authorize said bank to collect
eaid drafts and apply any moneys so collected to the
peyment of any indebtedness we may owe said bank,
whether dae or not, giving said bank full power
and authority in the premises to handle said drafts
and bills of lading, making said collections and apply-
———— a
+L I~
bas ,eatvop cub at tebied edd smmoed 71 ,bedoatis gaibsel to
Woot I" (Argue) geae soezebnd out at bia’ tryoo edt as
hedéatis gatharté [Lid ody mt bedttoesd eboog sit OF elttt
so god tadd.,eretereds sted Bo [Lol #1, ny thexb ent of
ocd to sbegoony odd bodoatte Y2itaiatg ed¢ ,B6CL ,£8 xodoteo
ko, deed Leqoltet garr% adt to ebasd ant ae etlexb ostdi
_ MBETORE Biod § theE amtaey ot. .sedetersg ott .og20 hip
_ edt, tom, Yedt sodgien bas ,wodt at teetotat on bad ,yasgnod
_ OAT, .etded, ett Yieltss ot bfed ed biyoo tooredt eboeoong
, oot, efevetqgs dtinv, waetoup 9280 soeTebsk sat at Sreee
+ A ay Rhee ~<a she Mi Bis _ apa WOL Lo?
“get tech Careetars ates _ ie hey, Pee
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tte ods i BEN reoaee isa 0 oe to. ao 2
mySeaine edt idoianaend ont eB ai cin .
2
th
Ks &
Say Shen 28% .B tavgva to rimaiennte viapesabaay
fenottem setlt ett oF yatqnob ogstore bod & dtuyt watsey
vlottnie ae anottatioss dows ehisitnco camidey "YO iit
6 tnonmgious odd to seotuanq “Urey ed?) ew FE tailt wile
bee Lqmeo Hae Liv? aisle Ro Xage Leno rten terbe wut! ovdy
we a6 atherh dove teul ehrager be qidetemve bas yt todtire
“betste as \aovdy galed yitrontieytstt \jeotteoup at orbit
Anef fanottel terit edt tedt rebte at gtaemmyteda eis at
sesatand ad t EMRE, at A ar ont, fuisan:diohe watiny to
tostios ‘et Xund hin > eevee dace gag ‘
tt ot betoelfon of syenom yre vache bas atterh bise
_ tagd hiss oo. yen,ow Res sbat to. tnemyed,
ogee d tiv? eyo bia iooatnare
a |
ing the proceeds thereof as it shall seem best,®
fhe assignment then further states that the
bank is authorised "to forward items for collection or
payment direct to the drawee or payor bank, or through
any other bank or agency at its own discretion,"
Qounsel forthe plaintiff urge that the assign-
ment in question was # nugatory instrument. We know of
no law which would prevent the plaintiff, the First
National Bank of Yakima from making such a contract as
is represented by the terms of the assignment.
As to the claim that the First National Bank of
Yakima was merely acting as a collector, that is answered
by what Mr. Justice Thompson stated in the Anderson case
(supra) pe 472, which was to the effect, applying it to the
circumstances in this case, that when the Yakima Fruit &
Cold Storage Company drafts endorsed in blank, were deposited
with the First Hational Bank of Yakima, they became the property
of that bank, and when sent by it to the First National
Bank of Chicago for collection, with instructions that
upon receipt of the payment ofthe drafts to credit the
amount so received to the account of the First National
Bank of Yakigg,kept with the First National Bank of
Chicago, the title to the proceeds when the drafts were
paid, vested in the First National Bank of Chicagos and
it became the debtor of the First National Bank of Yakima
to that extent,
ww RYE
tits tis peibal
\ wa aol Pe ebehs ee) vee
trod 3 19998 e fede eb es Peene sbosoont Wed ant
vse pat bed cota sod tut todd spevneiten ent? a be
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4
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betisogoh Stow clabid at beardbae sitter) Ynsquot 6 yerose | ‘ble ]
UUrocorg off ‘emused yedt yemtasy to Meee ‘tanott am ‘forit ca « ng
feceivet texid ody o¢ $2 yd gage mena ‘baa ‘Saad bade te |
pede dmoltvoutteat Ati iaoddostroo ‘rot @3.0 Ee "Seanad
jd Pinide Sh ebtaes “sade dada “Ste YE Sqbooos Cegts ty
fantoite@ tetia ede to tavooos oat oF bevioo 209" 08 ¢ roa
to Ame Lawoliay fers edt Witte syotatdin Yo. “ta :
otew attard ont code abosoory Sit oF a trl wit logan
bia yogaotd to aed Lonottaw veriy ole nt beveey Y
anita te ane’ nana tertet oe, Pe
rae, Let ele) aia
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4
“13-
fo hold that the buyer, after prying for the
merchandise, and finding it bad, is not entitled to go at
ence to the bank to whom he has mde his payment and get
back his money, may seem at first blush a hardship and in-
justice; but it must be borne in mind that just as soon
as the bank here received the money it became, eo instanti,
the debtor of the sender of the drafte, and so could not
return the money to the buyer of the goods, and, further,
thet the sender of the draft, by reason of its contract
Gf assignment with the seller, was entitled to use, at once,
the credit it had with the bank here; thus relegating the
wuyer to his rights for breach of contract or otherwise,
against the seller,
It is urged further for the plaintiff that the
trial judge erred in instructing the jury at the close of
all the evidence to find for the First National Bank of
Yakima, the interpleader; and it is claimed that the
matters involved should have been left for the sole de—
termination of the jury itself, The record shows that
no material fact in the case was in dispute, and that
being the situation, we are of the opinion that it was
entirely proper for the trial judge to instruct the jury
as he did.
Finding novéerror in the record, the judgment will
be affirmed,
AFFIRMED.
O'CONNOR AND ‘THOMSON, JJ. SONCUR,
a fe
edt tot gaiyeq getia ,reyud eft tedt bled of
+6 oy of Bettites fon at ,bed ti yatbeit bas .eetbnadoraa
tog as taemyeq ald oho esd ed sodw ot daed. edt o¢ seme
~ai bue qidebtad s deufd taxtt 26 moon YOu q¥erom oid Joe
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eAtaasemt g8 .meoed gi Yonem odd hoviooet sted aaed edt ae
ton Since os bas ,atisrwh adi to xebaoe eat To xetdeb ont
etedetat gbas ,vbooy oct to toyed ody oF Yoon odd mentor
fosttnos ati to nouser yd ,ttetb edt to cebmde dite Fade
oomo #s .Sey of bdTti¢ns esw ,rellon ode div tasteless to
edt gutvsgelex ewdt gored aaad ‘od ddiw bad $£ t106%9 ‘edt
poekwrod?o t© doartnes to doserd tot atdgix aid oF veyed
telise oft tenlages
Sf art
ti te
ont todd Viktaiala eds tot radtewt begrt et e"
to sacfo ont te peut out gattourtent at hexze abut ‘Polke
to naa fenote ay teri edt rot balt o¢ somsbive. edt ‘hts
ede dade comtelo ef $i bite yuobsetqredal odt amb
Haha a
meh for ott tot ‘tel meed evsd bivode bovlovai erodiam
das ewoda hroder ecp ytieats eat. edt to ‘noltantmtes
‘badd bas eotuqake ‘ai sow seso ot at ‘teat ‘Terretem oa
‘gan tt tadt aoiniao ont to ors ow sontautia ‘edd gated
wt ods fourtaat ot } spb tabs att rot tegen ‘qietitae
; ne goed bey
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smu TRs, RS MRO. npatel eupkeiieety sal i
SOKO . tb MOBMORT! CRA HO WKOD 'O
130 - 312606
@ARY Ban O2nD, }
Hefendsnt in Errer, ;
) ERRoA TO
Ve o MURIGIFAL © Count
} oF THICAGS.
A. ike WILLIAMS,
Pisintiff in peed A. ‘Be
| 0,inion oe se 6, 1927,
UR. PREGIGING JUSTICE TAYLOR delivered the ©
7 epinicn of the court,
: fie claintiff, Mary Sanford, eleiming thet,
upon a seit fer demages being breught in her nase agninet
the city of Ghiesgo, by the defendemt,n&. L. Williams,
; ae her attorney, «nd = judgvent for #4560,.00 being ree
4 severed and thet anout peid te him, of which he paid
i ber only 2300.00, when they bed agreed that he should
( get for Sie services only one-third of shat might be
: recovered, brought suit agninet hia, the defendent,
far the difference between one-third and one-half of
: $4500.00. There war 2 trial before the court, with a
i jury, *nd & verdict and judguent for the plaintiff in the
, sum of S781, B26 fhe defendent prosecutes this writ of
: error te reverse that judgment.
; The plaintiff's busbend died on July 29, 1919,
@s the result of injuries reeeived in certein reece ricts
in Chiecgp, in 1919,
In duly or Auguet, 1919, the defendent talked
with the plaintiff about « slei= which she sight have
ES
ee gS aaa a i rt sie t 2s
crores at se
s es aff. ee. Boao
or mnt
aE le tied sister 2. Rae. Se Ue «
a a aN at
He eadig eat
LObaee Bas
“#83. AEM tes
et gene a Ca ‘paLit cts eh og acts weutex
ae oe bile te TSpAE itt tie
) bereviten sostar Pane eee, savtana ‘te
hoe Mes Les wearer 4 PASS. esd ad Bigg ges SH a8 tr ae B55)
errs gntnielo brates “eres MbtaLaty ome es wae
faniage seen asd eb Ptguord ynted seg omeb coh stirs x amas
— gMBOLLALY od +a tasbaetsh 94g w ssaeetin 1 vase
Ee sie i ; eee supe et Seg 3 Ce si
“oF gated 00.0089 zot tmoeg bel # ED Siecle
ae Bs ee ot 2%: ah peat a3 PPE eS BE sz ‘eS ; =" s
iow of ide Ye ssid of bieg Suro Sade
eee se oem Seite Foes Bae ee eee ae 4 Ge 7%
ew Pei ee % eer os “‘eeaq % yt Tse 45)
“stmaneten ost wand teniags a ive |
# SETS Seo 4h eer e
Riad a3 ee 50 toe SSR foe a i a
a Seite sfz00e att wated
ee Es aes en Pes Oe ere “Te
edt ad Whealele adt vo?
¢ > ees $e see bark
“'s tien sat enaupanoty ¢ sacar
Be j
igi eae oe Boe oe tha. ged Ree aed ; e
“ener ee “iat wo best a
ale
agtinet the City as the reeult of her busbend's death,
It is his evidence that he told her that, ag she anid
she had no money, he would take her case for 60 per
eent of what might be recovered, and that she agreed;
‘that he investigated the case snd,efter further telke
with her, especially as te filing the suit ag a poor
person, he brought suif im the Guperior Court in the
name of the Public Administrator; that another lawyer,
one De Armant, alao, brought suit for her; that when —
he found thet out, he talked with her and she said for
doth of ther to go on and not have any fight, thet each
of the lewyers snd herself could have oneethird of what
might be recovered; that he told her that if he did not
aueceed in getting De Armant out of the onse that would
be all right; thet he then went before Judge Hopkins and
had be Armant reseved; that some time before De Araant
wae removed he had an agreement that he should get
half of what might ve recovered; that the firet suit
he, the defendant, began, he crused to be non-suited;
that before beginning another euit for her he talked
with her and told her that as they had no writing as to
fees, the satter ought to be put in the fom of a cone
tract; that, accordingly, in his office ehe signed
gontract providing thet what might be recevered should be
divided equelly between them,
A regular form of Gontract and Power of Attorney,
purporting to be signed by the pleintiff, and providing
for the retainer of the defendant, and thet he shovld
Teceive as compensation for his services 2 sum equal to
wave he ae we eee ae
Deine he taee AME ES
a PN ae Yay.
odsnab athasdaud tef to eloess ‘ede an ¢o2p. oui. tanlage
wise asin ae atadds tod bint od tasdd, soapbive vid of *t
xg 68 rot sane tod ast bLuow ad vtomon on bad wa
_Hiamys ode tad bas .boroveoes ot thy ten ¢ ovtir te sae
‘gifed Tetetot todte,hae vaso out hee igeown od tet
tooy as Tine sift week oh mae Usabeoaee axed Atin
wad ai os 00d tolreqee ade ah Clom @dgsord od wnoersg
gteyeet 2 sadiaan dade jsotertadatebs oLidut att to gana
_ ie tedt pred got olive Siguond yoke .fammrd 08 onto
ai Biss ode baa tod dite betlaé ado yiwe tate onset od
done tate .titgdt yt aved tom hae ao oy hid rhladl to deod
| satu to beittooae avai ewes Rownad bas axonal rae re
st ae ae
tox bas of ts dase wa biov “A onde ‘Ghorovooer 8 al hes
| biwow tds even ods te 0 Same, * paitiey at be
eas) feet,
hee anksqori agbart proto onow amt ad tase tig ma 6
eit AO a eeay:
‘Praemh at ovexed omit ‘ace teas bovenss Snsnts ot bad
en ae
t 1% Biworte wa rade tanavorms co bat od bevenen.
‘thse sexi ent sade pooreveoes od ‘4gt0 bade te Med
Ph anid
wativennon od op fonwn ad eft ataabas ton ag yet
oneted A
wadiee od aod 08 aiua redtons gainaiged sxeted me
ot ex gaseire oat bad ene os tate tod bios va mt be
noe a oo met ait at tog os oe tifgiso uaee “y 0 ot geen
a ina bes ous sol¥26 and a vaninosinn 4 5 cone
ey A SEM ae ae es oe ce Nt |
of Biucds bexevenst ad aan ents $98 gathtveta doniae.
tet newwted Leupe bebtvah
ae Mea Mae ae ee Oe et ‘og on,
jeonneet a ‘te s0W08 ban + eine te ae t xoioyon a
a ates eatate one yd baity ta on of ¢
——— ue tanta hey ti
FN m sis bth ted 4
steebar' ay oatines oat 23 2
on Sew
one-half of any acttkement, was introduced in evidenes.
The plaintiff denied thet she hat ever retained
be Armant, or that che ewer hed any conversation +i th
the defeniant se to eagh of the three getting oneethird,
It ie her evidence thet she never agreed to give the dew
fendant onemhalf; that the defendant eaid he would take
One-third, end that ouch an agreenaent was made just before
the money ena peid, Ag to her signeture to the alleged
Contract and Power of attorney, her evidence ie comewhat
eonfusing, but, neverthe leas, we think deqonstrates thet
it was her signature, At first, on cross-exsaine tion,
she said she did not think 1% woe her handwriting; on
rebuttal she eid it wae not her handwriting, and then
On eroee~exaninetion said if she did eign it (referring
to it and three other writings) she signed blenk pieess of
paper. The other papers referred to consisted of (1)
& Power of Attorney, dated linrch 26, 1923, to the defende
ant to collect the judgment; (2) an aceignment of the jucig-
ment, date’ February 16, 192%, to the State Bonk, which
wee wade in order to turn the judguent into cash, and (3)
& reeeipt dated uny 8, 1926, for $2300.00, *Im full payment
of moneys due we from suit against the cityvef Chicago, being
my portion of 24500.00 judgment ae per former agreement with
eaid A, i. Williams.” One tellers, * handwriting expert,
testified that the writing of the mame, "wary Sanford," on
each of the four documents ie in the same handwriting,
On her oross-examination eben originally called end
testifying for herself, she stated that the signature to the
i Sor tne SS
oe Sea
/
By i
i
id
seomebive at haoubottal gay .fromedtioe yrs te Bs
bawiodss tewe hed ata tatt boleh Weber hate weer Go oo.
gtw weltenrseaes que bat TOE oth walt re GaineTA oO
sbrldthane gusttiy eotde bay te tote Of an Panbad to eile
«oh ad oF; OF beerge ever ode Gast bomibroe ced Ot OF
oda? Hite ot bisk tawbastor ect todd YRiedoone" demhast
owated tet shex skye tremetys ms Bhve tett bas ,buhti-~eR0
beyetts e897 of ormtaayte ed of WA sbhey winw yamole mts
gadweeor oh ssaebive ted ,yoetadrA Re genet Baw teerdegd
tad? aetmrrencmed axtid ow (weet odetoven dud ynieahwoe
hotteetete~egorh me gerky FA .otedongte tot ame es
‘ae qyaisivtheed ‘ted ese tf antd> gow DAD bie BERR Wile
pete dee gatebeetied aot too mew OF bie ois kattuden
gittecoten) ¢£ ogte bib ede WW biew seteanton
Ye eseeky dneld bomate ome (egebittiw tema oieitt ‘bas! tee
“(EY Ye hetetence of derneter wteigny xodto oie “toe ero
ehostab ed? of SOR 82 corel Bebab akenmoe gt te xovot 5
~gbut of? TO trenmgiovs ae (8) {jtasmphut sdf doetion of tus
hide ined eteed oft og Sher jor crave’ hageb tithe
(8) bas dese oft teompiut ott axef of Votre mh haus How
tanayoy fit gt* ,00,0080) xo ORCL 8 yak bavth Pqteoey o
gated ,gootm Yeictio od? temtaga tore wink om Sab ee on to
athe tiewrergs vamTet xeq ea teemghwty OO 00808 te noitroy ya
ues gait itwbiad © yavotlon® oa0 Ssemek tte 2 (8 eee
*drehiaes yxeu" jouer ade to palette ond rade’ nenthewee
sal iemband oman olf ak ei etuomreeh, net ott to doe :
hes bo kien YLLankyhao sade we Le toes ot amir eerainy
nas of sasha re tay bones ots Rivero rot qactetaeane
ae mee ‘sek gunaaiversame cae neem 3
Sadie
assignment of judgment of Februsry 16, 1923, wea in her hand»
writing; as to her signature te the Contreect and Power of
Attorney of March 86. 1033, she osid, "Yeo, - thet does not
look like my handwriting. Wo. 1 am not eure;" that she did
not think that the signnture to the Contract and Power of
Attorney which wae undeted, and which purported to retain
the defendent ond to prosise him one-half in cane of settiee=
ment, was in her handrriting; snd that the signature» to
the receipt of ny 8, 1326, for $2300.06, to the defendant,
which states that it was in full payment of what wae due
her from the Gity upon her judgment, according to her
former agreement with the defendant, was in her handwriting,
Goneidering the issue that was made, and the
way in which the case was tried, the chief question that
arises here, is whether the evidences proved that there was
& contract between the plaintiff end the defendsnt that
he should be paid, ae compensation for his services, an
amount equal to one -third of the asount of the judgnent,
leas the discount, In oor judgment, the verdict of the jury
was manifestly against the weight of the evidence,
Anmtlyging the evidence, the conclusion seess
irreststible thet the contract and power of attorney, by
which she egreed to pey him &s compensation for hie services,
& sum equel to one-half, wae signed by the plaintiff.
The expert who execined the four doequmente presented
to him, the signatures to two of which the plaintiff testified
were authentie, stated that «11 four signatures were in the
- Game handwriting, The defendant testified that the signature
Pike
a
a ri wel Dees
shend pil a a (BORE OL qravrdet to Foomagbart ‘to Sa08mg inne |
26 Xew0d hae tooténg? sdk o¢ oxutermte aed ehvea qalsiaw
- 900 noah Fad? « .99Y" bien efe FOR .88 dotey Yo qeanedes
bab ode tadt “youm toa we Laat iakeleweand wa omed dowd
Me TeHOy hae PDOTARAD Ade ef oxutomade odd tadd alakde tan
Aiotax af detroqaug Metin das .bedabies sim, doin wmomotaa
ALTO, 8, aces, oo Ehodwsao, ahd eeleuty of bie Packaateb. ad
Of <otwtamgte off todt Ane galt teobagd med att pam: tenia
stuabseted odo OF .QC.00E8$ Ok 6M QS anit to tqtoney ate
nuh eee fade te Sopeyeg Aint at aon th tog, ameme dpishe
Tod OF yALoTODEs .Keonyhe, tad moqu YEO. ade moek om
spate orehaes met A a steabunted, pdt chow Arnnveym Soaeet
ate aie sic iain |
oo baw \ohew gaw tate Goedd ole gate obbaned 7
dat? sokdmenp Tete ott ate ey a peered
sie weed? todd weveny oonen rye ont teAtedw o ot ree
fade taabmoteh 443 bhe niente) sald ens a ‘torte 3 am
te ieeigre he ope molt ial eae ne
eek en? ‘te Gokivraw oxly stabeghet oT] ie iii 0 vue éaet
bi i eR 33 hie iy
" wOMNb.Ave oe Te dein bind feats ¢isténinds eae
al el hy Y cd ft
aaa paknntane ane ahah. Ath, satin mannan ye
. atiarerie Te Pati Rae AOAERMEO OAR: RARE A
etotenghe ote, toe mtn cesindichio an - anireraad case n
Phy
An ph: WAAL
BAe M0 DEA et Ot eR RTA
ob-
to the contract and power of attorney waa signed in hie office
by the plaintiff, and all that oon be made from the testimony
of the pleintiff in regard te her cignature to the contract
and power of attorney is that at one time she did not think
it wae in her handwriting, and when oslled agein,in rebuttel,
that it se2 not in her hendwriting. further, although he
testified thet the agreement throughout s11 her relations
with the defendant was that he showld get one-third, the
original etatesent of claim abe filed, made no reference
te any such arrangement, and the amended statement of Gleim,
which was subsequently filed, was baeed on an alleged ordine
ance of the City Council previding that as to judgmente to
be entered agtinst the City for the aum of $4600.00 in each
ef the race rict oases, the owount of the attorney's fees
should net exceed 25%,
On the ground that the verdict was against the
manifest weight of the evidence, it becomes necessary to
reverse the judgnent,
Some mattere are referred to in the brief of
counsel for the plaintiff, which pertein to the condition of
the record, and to certain exhibits, »ut in the view we take
of the cise, they are uniaportent, sand not only unimportant,
Dut imeaterial.
The judgment, therefore, will be reversed, and the
cause remended for a ner trisl.
REVERSED ABD AEMAREED
O'CONNOR’ J. AND THOMSON, J. COWCUR,
en
eurtte wie at Boag ea qentedée td tevag sia hina ‘lee !
Yoonitast si% wort ebaw os mie godt tla ban Sharkty oy w
doovdaes ode of veutangy te ved dF Breyer wt THaLaly Wi te
datas tou hth Bin owtd ano tu Gadd at qomrorrs to toweg fata
fetewder ai alec batieg adw baw gud brads ‘tod WY won FE
ste dyeodeta vette gate ixwbast ‘eat ai ton ene 6d Pade
anvideker vad IL0 Juodg20tk? Jrammevge aft todd bosttrasy
ade bind damomo tag Biveds ed vat axe + nitiate Wb ere
| eogere tor on whit hate’ wie siinte %6 tadnebara
atetn Yo Smee tm pabeewe wey haus ataomeyaeete ‘deve yaa od
aakbne bows Le or xe tepatl awe bolts qidawensedion ‘ane thet
“Of ataergbet ot 94 Get yatbtwore Lomed yh aa 26 deme
done ad OO.O0R Bo man se <oh yep ate Janlage beretae od
ave atyanaate ott to awens ong, meindbiniienie biked
ont Puan food sotoany xo ‘bade brvory, ‘oak ‘°° sate aa is
ot yisevecan e9ma0 of a aoonobtys it 1 * + bint eae
Saat ‘want
Ye toded eve mt of. aie 2 y venti mp Siiviann . daar
“te aerttbacc odd of abxteeq Aotin \Yriomiats act tw? toumon
eked ow woty ode al er ne ee a ee
staeeroge ta ‘a0 ‘ten baw atasrroaticn | oe _—_ «tei Ye
“tet
we ERS RR TN AS ERE ARREARS RR
yma a Rwy at inte wrote og ong wood (
Pi a ae a ave
. Rerindhi eas
ite me he mer ae) eae
: exe ua cuenavan sii huh a ied sid il
eg ein 2 Siam
Svea aN RSS BEL ACN SS a i cc i rn ial sh al oat dsm sia
PS eee
TE SSO Se: aad
a
136 - 31266
PHILIP A. KAMEECH,
Appellee, APPEAL FRR
SUPERIG: GOURT,
Qcok COUNTY.
Veo
BAK AARON AND JORN VITALCAA,
&ppellent,
Bie
|
x a ine
Opinion filed April 6, 1927.
“wR. JUGSTIGE O'CORWOR delivered the opinion
ef the court.
Plaintiff obteined @ verdict and judguent
against the defendants jointly for $200.00 in an action
ef trespass for an assault and battery, and the defend-
antes apperl.
The record discloses that on November 1, 1924, -
plaintiff, who was in the grocery business, drove 4% |
hig auotucbile te scuth Seter strest, where he desired !
to mnke some purchases and backed it up to the sidewalk
20 that part of the truck waa in front of the otimmission |
house of 3.Aaron & Sons of which corporation the icfende
ent Max Awron wes president end the defendant John Vitalora
was & saleasen enployed by the corporation, The evidence |
further showe that the defendant Vitelora and some other
eaployes of &, Anron & Sone vere hendling lettuce on the
sidewslk in pea of their eapleyer's place of business end
that plaintiff's truck, becked up a8 it was to the sidewsik,
interfered with thee in their work, and plaintiff wes ree
quested to move his truck so as not to interfere with the
handling of the lettuce, This he refused to do. An alter-
—Se8fe = BEL
bent “a {ie
4 fea sah
- ome faeet 6k 6 ppetioggw OO
; eh Oe oF RS oe Pe eee pee FER DE ale wo the
Re ee a
“i genet 2 sanouaray Hag, OHA
ee O shied o> 2 id { tastiecas,
Ba shea sco BR Be: ses wi
1985 3. Lita bealit MOLL: 2 add Fath COLE...
nt Ca Tae
‘aciaigs ose ‘besavifen ‘aoo9 10 aura pik
. oe = oe ee
1 PEE ine DO
Eig Pa 3 i é we oe rH HM f82 .
4
ihe saat ‘sac geabilia ihenchooiiae tebieanie tie de tee
re acites on ai 09,0088 aot elvatot ataabasteh od? Veaiaga
“ere. ode bee auperens, on: shrecen sn: site samen We
+ a Same rc wk
Sate died! alewe oo
"(288 (E aocnaved go salt eoenfoeth broges oft
4 ' ee = ‘ererd , es feud yYReooTy eth atone ote tamale
_ hatiee® ed ouade uf terde-meten dime ot é
“Alewabte ad? ef uw 22 hedoad bas eeedeney emo (ae
| Robae tame watt Lekecyiciws — * bev 70 gar ate os
SWE Whos tandas tes oct bas i pees cy
Nedab bes att sack$sroetae ad ads W beyelque asnaninn 4.8 |
roots ents bi me eai¥ tasbas tb net fall, panda, ues .
adt me sowtiet aulibesd exer ence 4 mound 1 Ye segelone
bas aeoaissns te grads. etx geigas ‘sedg, 30 omega stovente
sisesbie 9a ot ane 3: ee qe DOXQad downs 9 fR2s d
gt aon ‘Butatalg, bas iter siede ak wade his boretsstat
NRE Ve
ge
cation eceurred between bia and the defendent Vitalors,
Vitealora struck plaintiff in the mouth and severely injured
hia. There is evidence to the effect thet plaintiff eslied
Yitalora a vile name just before the slterestion, fhere is
further evidence to the effect thet the defendant, Asron, prior
to the time of the altercation seid to the defendant, Vitalora,
and another employee of 8. Aaron & Sons *get him out of there#
referring to plaintiff. A number of witnesses, including the
defendante, testified that Auron made no sueh statement and
that he took no part in the controversy and hed nothing te
de with it other then he wae near the door of thecatere
ef B. Amron & Sons at and defore the time of the alterese
ticn,
the jury were inatructed thet if they believed
from the evidence that Vitalora aesaulted the slaintiff and
thet the defendant, Aeron, "stood by and aided, abetted, agsiat-
#6 or encouraged Vitalora in meking said aseault, then Aaron
wes equally liable with Vitalora,* and sinee the: jury found
in plaintiff's favor and against both defan<ants, it must
be presumed that they found that Aaron abetted or encouraged
Fitalora in waking the eesault,
The only argument in this sceurt is sede on behalf
of Amron and it ie contended that the court should heve
directed a verdict in hie favor as requested by him. With
this contention we cennot agree, fe think the question of
Aegon's liebility sas for the jury, fhe lew is cell settled
to the effect that if one defendant commits an assault upon
the plaintiff and another defendant aids, advises, sbets or
encoursges such eseavlt, both are liable, Hildreth v.
Henecock, 156 111. 618; & 3.3, 626; 2 H.G.L. S73, It is
=a=
Aes dtyst r
.steladi? gusbasted edt baw att aseuted PB i
petstat qlererss Ban décom odf ai Whivalety douxte azecese¥
Rslf{eo ttigniale ded gestte ede of eomebive el ered? - mbt
ad erat soivsexet In ad? oveted fevt emac siiv s st0Lssi¥
weite ,feuGh ,Fasbasteb off add soo tte tied oe sommbive redgart
,mrotee2® gashaeted off of Brae no tSaorse Le ot to walk od} ot
‘great ta dve até teg* enc § moreA a ‘Yo seyelqas todten* has
sit gaihdidal [howeawerh te wedetied etivatale of yatereter
bat fropesete doce sa sham gOTsA 7.482 peitisesd estachasteb
ot gaidton bad ban yexaverdaon odd ni deg on toad ed Fait
stesaueds Ye roch 9) taen eae a aodh wedto $2 tte eb
vapaee le eaz ke ante ante sretad bre $8 anek 6 sotes “8 To
Siikint wees at gon seeks
ea > ade bd
- pavabied wit 2 Sas ‘ieiewtient sree —\ nce,
yee ae
hae Pileaist: edt begfeesee avelatiy tadt seaehive ‘eds moet
oteizee ,beitade ,babla Sas qi boota® ,soTeA qeeanested of dal?
aces ned? .tiveess Sie8 gatvancet sxoiatiY Ségemrtsm cee-be
bawe? Yrwg ys3 sonic bes *,srelesiy tiv eldail yileupe ter
dane Fi ,ohavtneteh seed gouings Pee tevet- Bt tt ttw lee md
Doyarwcen® to betveds motes fetd bamt qos fed? bemumare-o¢
ee eiameneee gattne. mh emedet ty
| Tisded ae shew - F108 aide ‘at duntnges “eine ost -— ve
| oved Siuode fumes od¢ ¢adt “out #1 hr i to
I i. eee. esa aS
ane axel ww bedesupe: ee nova ont ai
bak @
SKS
* PG
te acitasep ont aiaklt af _sasxgs tonaso fe paem e286
Pete aS. ema
“beltese Lie et wal er et oe sot x gel
‘ ai gee = ie Pi dog 5 can
xe steds ovata ssi fushasted sedroas has
eo ze pe he Bwi es 4S
o¥ weg valent ons ted |
Mer Sh Bier” erat ei
ah a8 +282 aaa © (SO 4h.0 8 (BED EET
i
=S-
alao the law thet if one is aerely present at the tine
an assault is committed, he ie not liable even though
he mentally approves of the sgsault. 2 R.G.L. 527;
Brink v. Purnell, 162 Wich. 147; Bjue v. Christ, 4 Il.
351. Go in the inetant ezse if the jury believed that
the defendant Aaron told the defendant YVitelors "to get
him cut of there referring to pleintiff, and that shortly
thereafter Vitnlora ascaulted slsintiff, ae disclosed by
the evidence, they might draw the inference that Aaron
abetted or encouraged the assault, in which case he would
be equally liable with Yitelora, The inference, however,
was for the jury and not for the court. [favale v. Jorton
Salt Con, 242 Til. Appe 205; Mocre v. Egsemond, 238 HY, 358,
Seunsel for the defentante cite 2 number of cages,
most of which, however, are master and servant cases, where
the liability of the master is prediceted on the doetrine
of respondeat superior and therefore, inapt becouse in the
instent oxse both defendents are charged in the declaration
as joint tort feasors.
A further complaint is made that the court erred
in refusing to instruct the jury as requested by the defend=
ants that even if they found the defendant Aaron hed used
the words *get him out of there* as above stated, it did net
authorize an assault or mke the defendant Aaron, liable for
one if committed by Vitelora. We think the instruction sas
properly refused. As above stated the jury might draw the
inference that if Asron used the vords “get him out of there,*
he thereby ebetted or encouraged the assault.
The judgeent of the Superior Court of Cook Gounty is
affirmed,
AF FIRMEDS
TAYLOR, P.J. AND THOMSON, J. OONCUR.
~be
aul? otf fe Saeeetq YoTos o ame ti tadt eal ed¢ ‘oie
deed? aove oidadt tee af e€ getthuecs ef Ploseea aa
4738 0.0.8 8 lohunene edt to eaverqqge yliséase ea
ee ees eee eee ee)
sts Devellod gent ont bi saxo taecert eat at o@ 448!
| gag af * erelot sy dxsbecksh ed% Biot gonad duekssteb edt”
“ ekbreds ¢add ane .Tiktalely of gaberstet ered? to fue mid?
ye SsecloesS sa , i bisaialq Betineses atolediy tettascedt-
bivesr od eeap doide af icmese edt bepaevoese x9 Boteede
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S22 .¥.5 B56 ,bregeeot .¥etoatt 7278 sqqd .ifk 6 san ofa
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erede ~aanen JRATT es Bae wetese ste , Tere ws - soni to dnem
eelwtesh ad? no Detaslhsee wt mnemen me to panda wit
sie si sayseeg fqenl .emlsteds Sus weiss = to°
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; Becagsl ged Step ae
herss paniie. add. +a8d sham oh guteiguae sedasuy: A desea Tey ed
shasieh edt qd bedsenpet ea yrah. edt goursaat of guimiecah:
bees Bad aotes Jashaeteb sce, eauok. cedd Be move face stan
tom BLS #2 ,betade eveds as Sonedt to tuo mid toy* ebuew na
<2et elvati 180784 tashasted ade ‘sion te ze Huwene ae satodgus “
aa “so ltoardes! oar cd oe y sanotaest xd bedtimace 2 ame
& gl susheee @ bavoeees
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nae
a a
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145 = 21275
%, T. GOO,
APPEAL FROw
)
}
appellee, }
| SIRGITY GOURT,
)
Ve GHok COUATY,
Appellant. i ree a
Opinion filed April 6, 1927,
BR, JUSTICR O'COMKOR delivered the opinicn ef
the eourt.
Plaintiff brought an action against the defendant
and the Chicago Railways Company and the Ghicago Gity fnilvay
company to recover damages claimed to have been sustsined
by him for personal injuries. fhe esse was tried hefere a
jury 2nd at the close of plaintiff's exse the defendants
moved for 2 directed verdict in their favor. The sotions
were overruled end the defendant, Aeverazan, procecded to
introduce evidence and sfter teo securrence witnesses had
testified and after they were orogs-examined by counsel for
the street car companies, at considerable length, the court
on motion of counsel for the street car companies directed
& verdict in favorof the street car companies, fhe trial
then proceeded and there was a verdict and judgment sctinet
Aevermann for $2,000,0,
The record discloses that about four o'clock on the
afternoon of September 27, 1923, ss plaintiff we in the
act of oranking his truck, which stood nesr the nerth ourb
of West Division Street, from fifty to one hundred feet
east of Crawford avenue, snd fating west « street car was
se AS ae ae)
ee
Bie 3 > Lbtqga ‘barit — _ oat “alan: :
zk as BE IS Cees ee cae SMES em. ode
i
— hottavtet wt bexsensoh monet Serves “gene ot pw hen
EERE SPE: tM gels SE Sate ag aah er
| we, XO AES -*
» $ a * = ~ aie r = } Ties
tng oA 3; pe Bae 5 Oa Toe ae ease a ae ters 5 Pi 2
eZ a RR fs Pe ENE «en
oe ; ba CaS SOR Deen Crease leet
: _aashsstob, oad seategs aoitos ome # or ur ee ae 4th :
qarl iat tae ezeelse ate baa qaagect oye! bast 80 ot)
“Sag istere ated evad od Sastele seposb sevones of veaaed
earner Maha (2 Lonoersy 20 mtd
ghechastab sfy sarap ‘Seoveapazate to: s00to ne aa bas ea,
ao keae - “a oravet —_— #
x88 Seeauee ee SAREE ROT
femoe odd patguer stancepieace fee
betessis siinaes tao Soetée sat <a. oe te: 38
inde e4¥ suslasqnes ta teeTde: alt Seseeteg tekbe
“feature taenghet ben teltTey o aan ened? bas.be
os oat x0 olote. ‘uo? tueda tadt aosoleath
Ses - a ER ee as Ss ae
‘edt al ase Wueetala ae a sauet TS tae
approaching from the enst in Division etrest and the
defendant, Aeveraann, was driving hie truck in Division
street in the sane direction smc shen the street car and
severmann's truck had reached the point opposite where
plaintiff's truck wae standing theze was 2 collision
between the street car ond Aeverzann's truck, aa a result
of which Aevermenn's truck eollided with claintiff's
truck, pushing it forward and injuring plaintiff.
_A& police officer was celled on bebalf of plein=-
tiff end teztified that he was at the northeast corner of
Sraeford evenue and Division street and saw claintiff's
truck etending near the north ours of Division street, about
fifty feet east of him; that at about thet time he sew the
street car and Aevermann’s truck about 150 feet farther east
eressing Harding avenue; that the street car, and Aeversann's
truck which was traveling immediately north of the street
caf, seemed to be racing; thet the etreet car and the truck
were about even; thet he then momentarily looked torard
the north and then heard a eraeh and on turning around he
saw that a eclliisiog had occurred between the street car
and the teo trucks, fhis ese ali the evidence offered on
behalf of slaintiff as te how the accident oceurred and
at the closes of plaintiff's case counsel for the atreet
@ar companies and counsel for Aevermann made separste motions
for a direeted verdict, Both sotions vere denied, and
then two witnesses were called on behalf of the defendant,
Aevermenn, They gave testimony to the effect that for abott
two blocks east of crawford avenue the street car was traveling
west behind Aevermann's truck, which wes straddling the north
Fail of the west bound street car treck; that the street
weil ss
ad? bas geetée solafvig af gese ed? mo? gy
actetvhG al scex? eff yatvivh saw UIAcerTe POA, stasheo tee
fee eno Seetes oelonacelieeatian temtiunntivne sii 04
atede atlecqee seiey o4% sedoaex had soured aime iit
solelifes 2 asw axed? galhnats al sowed ervtiemcaly :
tieserx 2 6m ,deuxd ettasmreved Sm ten ‘goeuta ode nsowted
a? Sita She tie, bah ididoe. apes" a taaeerer os tn tie Yo
»ttiveicig weieatat bas btewret +t —— woud
w~atste te ‘Viated 5 a S erkse | ear ‘aeontto ‘teliog hes mae ) iti
te aeatoo taszedicos edt ts caw ec or) perbssand bas, a Me
S'ttisaielg wee Sos Seette molalve has Guasave brotwery
fyode ,jeerte aciekvic to drae toc ost sane yalbacre doott
et wee Sd emit tate suods éa dade quid Yo tase dent ystst
Sece sed@as? geet O84 fueda wi? atansetevek bas te goede
etaamasaved BGS gERO dzevée off gait jouaevs gasbtet galesors
eorts ef te Giroe yfetatbarst grtievee? ecw dn tte doe
Jourd add baa eo fsomse ecg: tadt yystent af ot hemes gree
browst besiect qiltedmeson node od ged? jaove guode orn
o¢ baste yatouse ne bee deato # bxaet net? baw dixon ore
q cep George oct soseted bexxwope bad Goketticn s stadt ene
8 ao hevetie semebive: ef? ifs naw erat aiowtt ent o&t baw
: bas bownwses sashions sit wot! cf ee Wektalale Ye Maked
fester et ret fecawon ease atttteaiate Yo eeofe eae te
ate patace stow eavitom sed Rk rag ect hn re
stasbastsd ort te Lasied a0. boris: ao ‘soanand in ont
a shots rot teas teats out ot erent tes? eves weet
i palisvart ase tap toons oa ouaers arotwew te teen ;
i drs ost yattnmnte ony faite sowed 6 “
Se sue
sanwteves,
eRee we EE: 3 ny :
ar ea Abo & 3 ; 5
Ching ba
a Fr es ee ee
-i-
car was traveling ebout thirty siles per heur and at
about the time Aevermann's truck had resched = noint
nearly opposite plaintiff's standing truck, the street
ear ran into the rear end of Avermann's truck and threw
it against plaintiff's truck causing it to injure the
plaintiff who was in the set of cranking his truck,
These two witnesses were croge-exeained by counsel for
the street car companies end ene of then was crose=-exaained
by counsel for plaintif?, The testimony of one of these
witnesses wes also ‘to the effect that there were & number
ef broken windows om the north side of the street ear which
resulted from the epllision, At the close of the eross=
@xamination of these two wltnesces, the court adjourned
for lunch and upon the convening of court in the aftere
moon, &t the request of counsel for the street car companies,
the parties went into the chexbere and counsel for the street
oaY comrenier then sgein asked that his motion for a directed
verdict be ellowed as of the time sleintiff closed hie case.
Thés wotion was sallewed and the jury were instructed accorde
ingly. The suit wis digsissed as to the etreet car companies
amd counsel for the street car compenies then left the court
room, The case then proceeded with the result 2s ebove
etated end the defendant, Aevernann, aypenls,.
Although no point is mmde that the court erred
in sustaining the motion wade on tehalf of the street cer
coupenies, we think we ought to say that it wss clearly
@rroncous and prejudicial to the defendant Aevermann, and in
vier of the fact thet the court told the jury that in dite
wiesing the suit as aptinet the street car companies, on
account of thete being insufficient evidence offered on bee
hal@ of the plaintiff, as aminet them, it is obvious that
1 Wiccan
debra a
a2 Res yamewtords Sasbactes sdf 2
its “sud ao: socetee's “sonar + Rane ted ‘
aie
$o bes sced tq ealia ehuiae guoda giifeves? eaw tao
akeg » betgoat bad toevt stmaeetevea pelt odd dude
tevite edt does guthasta etttiteiste otiacane Veaes
gerd? one towed: ‘st aneeEeA to bas Seer acd oder oa
ea? euwtmi ef 24 uatewes deune e*Stisetelg BELA
sfoued aad geniners te tee 269 af sv ote Thueniata
+6 feenwce vd Béininexsmeeors exoe eoeenat bn ont ana
seed? 26 es0°Re waned oat © cet pitepiscesh
reGeun & wes axodt tadd oat ta eds ortoale Saw ‘gevgead is
okie £90 soorta eds te bie ateon nat ao avabatw odord
ac207s ods % see fe ods 3A a4! boo ode arg
_, Marepes t2000 ane seseaant iw on ned? ‘fe eoued
ae
Say oT
~g28 8 ang. ai Peso Xe paisevaos ot wou ‘bas dont
he oo Pel eres
aBBLBET SSR: ts Spests od? rok feanvoe te taoupex ads ts —
oa Lge. Faye
dootts sdf set foeavos bas erodes ose oat taaw bared edt
ee Sa Gt ay ig
bateetih ‘9 xsi, soltes aid fost besos alas es poy crag Fag
22820 end besefo YWitatske oait oat te 23 ligecuce find oe
4 ae Eee ie
tf
CSTONOS betosttant oto yet ads fas. bows seh pee drs
SC iRSGEOG TS8 eects ode of of bseakeetb ane E oan emt cigs
tewen ent #288 goes setasgeco za0 foorte ea tet fsemueo bas
ee SES wear
Srete ne A ueot out at be babose ox aod oo
bests @ruve ode Sect em 8k toe oo gio tte he Pe
RRO Ru0KeN SHY Yo Tinted ao thse eokton 4 ty :
‘Eisele ear th Sade Yee oF ‘oun a2 Satta on ceatamnone
webb "at Fact east oat bt ee 8 ra 48- at Yo wot
- ag ge ema es ¢ 106 Soeris ode tt piemtek: Setar ns :
~4~
the jury would return a verdict finding Aevermann guilty,
because it is admitted that plaintiff war guilty of no
negligence and that he wes injured through the fealt of
Aevermann or the street car ovmpanies or both. and when
the etreet cnr compenieon were dienissed from the case,
obvicusly Aecvernann could not beve been found net guilty,
although the evidence, had the gage gone to the jury as
ageinst all of the defendants, might bave warranted the
jury in finding the street car companies ailone guilty.
The teatimony of the police officer called on
behalf of the plaintiff wae sufficient to make out a case
against the etrect oar companies as well ae egrinet Aevernann,
Whether the defendants or either of them were guilty of
negligence, wae 2 question for the jury to determine, even
Af there was no evidence exeept that of the police officer,
Wor was there any warrant in the law in permitting the
street car companies, after ite coungel hed cross-exawined
the two witnesses, called on behalf of thedefeniant, Aevereann,
to renew ite sotion for a direoted verdict as of the tine
when plaintiff closed its case, Where a defendant makes »
motion at the close of rleaintif’'s case for a directed
verdict, if he desires to save hin point, he must take no
further part in the triol, If he does take such part end
desires @ direoted verdict, the court in passing on such
motion must do so as of the time he makes such second motion
and consider all of the evidence then introduced, J, ,AodWeiy.
So. Ws Velie, 140 111, 59;, Fowler vs G. & We I. R. Co., 192
Tile Appe 123, Of course, if there is more than one deferde
ant and motions are made on behalf of all of the defendants
at the close of the plaintiff's ense and they are overruled
i
ks
fall eae? op pa
wet Lang uaenasveA gathat toabray 4 mite: piven penn oe
on te ge any aaw Tiidaisie tit hers ibs fd th eauin ac
te # fas ons dquent horutat aaw of tadt bas senna ae
9 the bea etitod to saineqnoe x60 Mente oF) TO A ese
9480 ads aver Benelneds stor golaRgeoy, tap torte om
elie ton paver oe ad vad foo hiuen miemeves Ylavotvde
Gm vist ott cf say saan ace had ,somehive odt sMyuodtie
ee botnessay eved dthy te sat onnao ten ais te, Lie PAL Ry
VALing enol ae inaguoe <8, spnyte. On? (ening sed, Yast,
no botlso tonite webtey of¢ to ynoweeked eee
eenn o ovo stew ef greteiTive ger Titeatate set —
aeeTOMNd Sembee ea [RW Be Ae Las iwed Tad PooTts ote Fontan
Ro-ysliny oxew' mens to Tate TO aednehanteh oar Kode:
nove ,eatexotes of pert ott wot ac ttteus a wae” nha el
| pean tte eokroq ent Xe etit Pyeors wendtive bt aie oieite EE
edt yatettorag ef wel sat mi Perce Yee ote
Areioaxsseory ied Lonaved ati tet ta sie big tie 6G
iemorewes ehebESTeBed Yo Rierdd ao belted eoadbad ie ‘ote ba
ent? eff Le ee Pe tivet hatpert® a vat ae
p wedem Parheoteb a vod “,e0ke aff Beeoly fratada’
Bebveeth w TOY onee aCtivtiaty te weote add Be avtia
or ouat goun ed \intey nt? ave oF votteub of Le ytokbaen
bus grag tome oded aod od TE -Laind, oft mh Smee
gave mo yeiserd wf tien edlt atotivrer bet :
mG SSO hgoves dome socom od amif odt te no ob tem miton
prota Te a bopubortst nod? epnebive odt to Lie me
Cee ae ee a #VBRieed AGG ttt OPE gRhley.
whitobh eno ast vom et ered? Th .epton 20 Gg ERE oak, of fh
efasnarteh oct Yo, [ie te Bhaded ae. haw ote omy hee
hosuaneve ass wat bas game M Sciam mien a ett
eas
-5-
and one of the defendants stands by hie motion, the other
defendant by putting in evidence cannot effect the defendant
who stands by bis motion as that defendant's onse must be
determined ae it existed when his sotion for » directed
verdict was mde, notwithstanding the fact that the other
defendant eubsequently introduced evidence : his orn behalf,
Gondon v. Schoenfeld, 214 111, 226;
v. Likes, 225 I11, 249,
Defendant, Aeverwann, contends that the court erred
in giving instructions tos. 1, 2, 6, and 9 on behalf of the
pleintiff, while we might not reverse the judgment on account
of these instructions were it otherwise correct, we think we
Ought to say that none of them should have been given,
Inetruction go, 1 sought to set out the facta in some detail
and told the jury that if they believed those facte to have
been shown by the evidence they should find Aevereann guilty.
The court ought not, exeept in rare cases, tell the jury
what facte constitute negligence, that is a question for them
to decide from all the evidence, Penngylwania Go. v. Reidy,
75 211. App. 343; fracy v. oF 185 Tl. App. 125;
v. Dingmore, 162 111, 658; 1.0, Reh. Go.
Se lee on tll. 43, Instruction No. 2 told the jury
that in estimating the plaintiff's damages, they should tuke
into consideration expenses inourred by pleintiff's for
medicine, medicinal and surgical attention, although there
was no evidence offered that plaintiff bed ineurred any
expense, at least no evidence of the amount of such expense.
By instruction 6, the jury were told, among other things,
that if *Aevermann failed to have his automobile under
ede odd. gmudton aid wi ehuste stasiaytod nit, 20 a0 Ame
tamhagtod wd? toette sons sogehtve at, pated, cd dana tob
a fame oem. 2 inches tek 2408 an aotpom aid NO shasta, enw
hetaorth wh aoiter aid med oatetxe 22 aa hamdare
redie att pede Soak od? pathnatedtiutes .xhag nen fottaay
otiatad amy eid & macebtve heswhomtas ylides
4908 0 1 1% ahadanoog pipiens
ss Et vl OT ER pat epg, tT, 28. ”
herre fxuce sit tedd abavtnon ,aaewteesd ,onabnoted aa,
dt te Radad ag @ bra, QigS oh eet SPD
farooos 60 teemghu, att saseren ton tyke oy oLede 6 thie.
oy Moke or gtoryreo @aderedto 22 aso% nentgowetamt gaadt Yo
atinthe ed oved blonds meg? Ae mann tat 188 ——
Liateb wave al oteat ai? tuo tem of Siguce 1.08 Batson
ovad ot St0e% sand? bovekod ode Rt Pest raat 2M? fot bas
utlie aacgreven bak Diveda yodt aeavety a oat 1 soda wend
Was} ont L127 .eneso geez of sxeoxe tha thug srr aM
Meds 20% gobieerp mah danke adie exe stance atoat tae
ORE gant a 7 ak oY
OS Me Mek 4888 .20t BOL gopommate oF 120 ve ‘ltt
Wis), ate bLoe & sol so dtowetegl > LE {60 guemdey |
tne Hhyots. pod? . 4 toy aaah a Thstagede nate, sattentees a2, 49de
eet a RRAdaieig ql bormeas pemeqns woktoneb kamam | dail
oxedt tyuodtte. giv ttanate. Leo kgaee hen Lane Lem
Yew beweaemt dod Weavedata tat aero de, eaeine ona
oo
reasonable control by not using hie steering lever, brakes
and current controller,* or if they believed that Aevermenn
was driving his truck at a rate of speed exeeeding fifteen
miles per hour, or if he wae driving at such speed that hig
automobile could not be promptly and quickly stopped, ete.
they should find him guilty. This instruction was clearly
@¢rroneous, There waa no evidence tending to show thet Aevere
mann could not use hia steering lever or thet there wea such
® lever on the our, As stated, the jury ought to be told
the law without atenpting to go into the detaile of the evi-
dence,
Instruction 9 was in the lenguage of Seo, 22 of
the Motor Vehicle aot and ought not te bave been given
for a number of regaone, It told the jury that the statute
provided that no person should drive a vehicle of the Firet
Divisions as described in Seetion Ii of this Act,ete, They
were no where told what section 2 of the act provided. Moreover,
the First Division of Sec, 2 of the act refers to vehicles "desig
ead and used for the oarrying of not more than seven persons,*
while the second division of thet section refers to motor
oara designed for carrying freight, and the evidence indicates
that Aevermann's vehicle belonged to the second division, it
is referred to in the evidence an being a truck end, therefore,
was not used for carrying passengers, Woreover, this instruc-
tion quoted the statute further with reference to what would
be prima facie evidence, that the motor vehicle was running at
& Fate of speed greater than was reasonable and proper, having
regard to the traffic, It is very doubtful whether the jury
Would understand "what prima facie evidence is." Stansfie)4 v.
al
; DAE GM ; Euauepe
mod te pany satsoats and pater : dee ov foxdave | | sidanoases
ee i Ve, Sa
wnaere ven tad? beveling yon +4 <0 "sof torta00, ¢ hae
Paget ole oll
weustst yudbowpxs beoge te ad 4 te doust “phil gavin, —_
ali paid beoqe Moun ta gadvirtis ar ad te te Srinagar. pone ;
sate .bauqote ilo tu trae eitquora oe ton on wk on
; vinse te. wae pratoustent ait eS hg mid bert Paw Be
er9v6 tad wode oF gntbnad sombive on ei ‘orett a00sores
can
town aev oxedt tad? so newest gaiterda nie ew tea " ‘ee ‘nae
“bh fet ee OF gene qual Het .hecwtw va yties 9H ao eevel a
ates edt Ye scananiiaad om wted oy —— Fomid ie wat ene
)
te se 008 te pangs we ab new e specs i Abi ie
we mary aed evead ot fon ty we bes rea Pfoldoy ot c batt by
sient od 4482 ent, 9x2 Dict 21 amonpon Y0 xodaum # =0%
Sart ost Ye efotder a evtzb biuede nowteq on tae do by
wou, atte .toA wide i tl sedtoas a bedtunsoh oe amok uv ae
sOreOTEN sbebavors, das ot to & mottove tacts bisa oredn on St a
pianb © ante tne ot exster foe, one te & ; rs te moselvie tex wy ty 4
end sotbat seaehive ea bm Sener x0 f
1 monetyth bacvee edt ot pegaeted “‘sfotiiey tanaaoves 2a
exer ocodd hae Howes a gated es vomahtr od via hile virnyay hn
~oustenk aidt _atowoorci swtogmouang ag hate” Benge on Bg
bisscow acer oo sonore tor tt kw odsay't otutate oat enn mene
be gutoswe cow folsoy coven oct fash «romobive, ‘stash antag 9d
waived .reqond haa aidamomsen dal uid ‘TeteetR baat anal
cat ade toedkte thr fo'tsatrob yeev ba ile "
8) ER he
© Minktanee, "40! sombtre Nese ats * tate ba steobay
ola
Hood, 251 fll. App. 586; Johnson v. Pendergast, 30% 111, 255;
Barris v.Piggly Wiggly Stores, Inc,, 236 Ill, App. 298,
We think the court ought notte heave given instruction &,
for the reason that it attempted to enumerate the various
facts as disclosed by the evidence. The jury ought to be
told what the law ia without attempting to enumerate the
various facta which plaintiff claimed the evidence tended
to prove,
Complaint is aleo made that the court erred in
refusing to give instructions Kos. 9, 10 and 11 offered
by Aevermnn. Inetructions fos, 9 and 10 were substantially
the game and of course, both should not have been given;
one of them waa sufficient and the defendant wae entitled
to one of thea, Refused instruction Ho. 11 was inaceurate,
It stated that if the jury believed from the evidence that
Aevernenn at and before the time of the accident was driving
his sutomobile with ordimary care “and with such cere as an
ordinary prudent person would have used in the driving of en
automobile in the same or similar circumstances", vlaintif?
gould not recover. There mae in substance a repetition of
the statement theag if at and before the time of the accident
Aevermann Yse2 operating hie automobile as en ordinary person
under similer cimscwistances, there could be no recovery.
The pepéti¢ion should have been omitted. Woreover, it was
corrected by defendant's, instruction 7,
The judguent of the Cireuit Gourt of Gook County is
reversed end the oause remanded for 2 new trial.
REVERSED A¥D REMANDED.
TAYLOR, Ped. CONCURS
THOMSGH, J. SPEGIALLY CoN OURRING:
I eoneur in the decision of thia ease, but do not
he
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‘da pe etao powe ten bao" onne ‘wunatbro idte oLison oe ay
hn Se qatviah otf ai hoew aved Bivow aoareq ‘taobune exantbe
*tivdidle ,"esenstenwescte aaticte to enna nde a otidonotus
te mole haqes a aommtedin a) me orodt “stove0s% * ti
Rian aan Sh asetheg heat gall ye Pe B34
tasbioos odd To snbb ode evokad vs tet gene tawse sta oat
abereq WHAdibve ce en Pitdonotun etd salteroqo saw ony
Swatvaoes ed ot Biwon ora de wnsecazamonte ‘tattais sot
eee gue <tovooren betelen seed vad brwoie goke @
‘ ye : ‘eee bat haa aie
¥ aectearibent | 9 fabxo ten ys
ey mcd Teens ebObe
as ‘one “tak? 20 er photo One Yo, temaybep, wf) wh 1 we
ea Lake won A x0, ili opsten, at nen beammenn
RANE, Ok I a
ta ut sre st ated ah at etn E
a iii
=e
agree with a11 that is aald in the majority opiniog
concerning the instructions.
eet
eer anes sai tae 6
ict SY kas
185 - 21317
296 = 31426
PEOPLE OF THE STATE OF ILLINOIS,
Appellee,
APPEAL FROM
Ve GIRGUIT COURT,
COOK GOUNTY,
SHERIDAN A. WRUSEAUK , !
Appell aEte J A 4
cay
Opinion filed April 6, 1927,
BR. JUSTICE O° GORMOR delivered the opinion of
the eourt.
By these avppeale the respondents seek to reverse
eordere of the Cirenit Court of cook County, finding then
guilty of contempt of court and sentencing each of them to
ten days in jail.
\
The reoord discloses that Usrion Thornton, one of
the relators, had filed a bill fer divorce against bis wife,
Hagel Thornton, in the Girouit Court of Gook Gounty; that on
September 22, 1925, an interlooutory order was entered in
thet onse that Marion Thornton, the complainant, pey to his
wide $16.00 per week alimony, and it wae further ordered that
the care ond custody of the eldest child of the parties be
given to the compleinant and that the care and custody of the
baby, sbout 24 years of age, to the defendant. Afterwards,
on April 20, 1926, the defendant Hazel Thornton, filed a
written motion in the diverse proceedings, supported by her
affidavit, preying that a rule be entered against complainant,
her husband, requiring bim to shor cause why he ghould not
be punished for contempt of court in violating the order of
| the court by reason of the fuct that he had taken the baby from
x
im
w
Ne AEN igs
eicst ~ eer
ah 0 Bs us add
Sl OBLAds. TRAPS. ae Ww. manegs
asal foqra
won GaAxega
{THOS TLUOAID oe a
oFeRUOO FORO | |
\ q RUAGQURR WA MAC TSN
boii ee m. ny ‘ f
ed ] a \ pt’ f rr a aN aVRe Lhe
eS8CL .8 LitgA belit notaigd
te tain adit chihcapiand mORMOG 1O wrrauy aft
eng sru00 ont
oxeevet oF age atashaoana’ edt wdowny as enone Ad
wid gakbrtt .Yrauod deel Yo Hruet Perk oft to enebre
at wads Yo Goo galonetase bax Paseo ke sqamtmoe to ys Lbang
stint at ayab ang
he ote notaned? aottan tai aeaeloeth brooar eft apes
aatiw att tealege eorowkh xot (id @ dDeLet Bad yeretatee out
re said jytave Neon to stand short od? af hotemom? Loean
ai bovotne wow tebye yrotimolental me sel et redeetqee
ald of yay ,famntalynon aay asoratott Poktet dads eear tedt
att borebro vedexw't vow #2 bas ymomile teow oq 00.02% ner
ed eettrsq ed? to bLido tuebla vet to ybosarn ban tao exe
ad? Yo yhotane bas exeo oct gadt baa tapas toons a wks
Hay
‘g SOLtt ,motarod? Feaak # aasn0 290 ott , Baer oe t tn ried & 0
tod YS botronqus aagetanecony setaveh et at mer ketone aotetes
staan ialquoo taaiaga boned ad afen s tedt gar erg att c the
Ant POR aA
jon divote ed ed. ‘yal ‘eau we moe all nite gatrzuyer sbandaul x0
Xe tobs0 edt yattaloly at txuon to fqmstaee tok & | q 0d
“Rox YSad oe ao det Ratind pat took ws Yo aoanes we tu ya |
ee
en
Bs a
her, On the sage dey the court entered an order requiring
the complainsnt to show cause by April SOth why he should
not be punished for contempt of court in taking the baby
from the wother contrary to the order of court.
On Mey 25, 1926, the complainant filed a petition
in the diverce proceedings, praying het the order of September
23, 1925, whereby the defendant wae awerded alimony anc the
custody of the baby be vaonted and set aside, and that he be
given the custedy of the baby. In suvpert of this complain-e
ant filed his verified petition, wherein he set up inter alia
that the defendent for several months prior te way 25th, 1926,
had: given herself over to adulterous practices end had been
living in an open state of adultery with one Prince Kenedy;
that the defendant, with the baby, had Lived in ® eingle room
with Kenedy and that she was unfit to have the care and cus=
tedy of the baby; that on Warech 30, 1926, about three o'clock
in the norning, the defendant and Kenedy were arrested, dee a
enuse they were then living as husband and wife in an open
state of adultery, and for thie reason the couplainant prayed
that an order be entered diseontinuing the slimony he had been
required to pay and that the baby boy be turned over to hin, |
On June 14th, compleinent filed his anewer to the
defendant's petition praying that he be adjudged in contempt
of court as above stated, again setting up the above faote,
and on that day the court entered three separate orders, one
requiring the complainant to shor cause why he should not be
punished for sontempt of court for taking the baby contrary
to the order of September 22nd, a similar order aegainst Jobn
Armstrongs & pelios officer of the Gity of Chica ge and another
sig in hie aa sy th Pe
anf aw PO om aE
Oe Ra st
RAs ah Se AN
galtings: Thre ae horetne temo ad? yeh oman ont 40 aed
bivonle od yde MOS LixgA W owt” wow oF dmembalqaod wilt
ied ont yatiad ak argon te Pqwiteon Tot dadatawg of fom
atte ‘to robe ed? of yroreaen i odd mort
aobetioy a he sit trankalgeon att ,280 aS Yani, 0 AS LOY
sedasdoee ‘to rabte ode ted gmt gee. aegacdbees one sorovid ote ayer
ede sae ymont Ie babtaws ace fashreted ad#t qiatodr aes 488
od ot dati" Hhis Rntwa vod Mee Beitiseity od ydad ont to yhoRew
matsignes afit to Proce pl seed odd to xboteup ont aowky
ails tetas qw tee ad ndoreds ,wolttteg heltitey etd belie gas
sO80L 92S Yon of msxG vdtnon Iexaves TOR sanbasted edd tat
y aed bad ba B ecnhinaty swoxse Luho oo we © Yieersil peitpehasrng
ooer | @ wt borat bad atdad am dete ata ae ted wy ‘pane
“ao ban own att evad of #itau saw ove sant baw
Rewiate semdé tends, RIAL 5 donals ne todd edad edt to ybor
ead ,h9s certs stom ghomk bas saphalod oat qpatanon ott, mh
Me to Mh elie fae dasdawd es. gabvls wade whet Nome OeNeee
boyong taeniolewo ah aoeaot aids, wok haw giro? Iba to. apase
wed bad ed Yooalln edt paiumttmwoash heretam, od; rebee as tadt
ant oF nave. bomeut od. yoo eed, ade sited Xe 96, bee oem
Se heey i mine ieee ‘ey ele
edt oF Teens ald sent Panatetqnoe stot om
Yat ‘be “ wedge : | ee
seivat avods oad qu paitton aisha sbonete
3 eae verebre ag acagee vaca beretme tuv90 ts dw 1
oe $e binede oe yi piciin weit: pr te PEs, Sie
“qrantnee wad edt gutted cot Stuoe 6 tqma¥ade
atot santonn YonKe ait te'te'h "one ‘thdubtgna Xe 4
redvout bak shmmened te biird adit ‘ne auld te . ts
Lo ie ua i MEO RS ey Pee 0D. Reed i m8 oh sewn eal if
te phy
=i
ageinet Gheridan A. Bruseaux, « detective, The matter
oame on for hearing and on July 16th the court entered
three seperate orders, one diveharging the police officer
and the other tro finding the complainant guilty of contenpt
ef court for taking the baby on Warch 30, 1936, in violation
of the order of September 22, 1925, and sentencing him to
ten days in the sounty court and ® similar order entered
against Brueeaux, It is from these two orders that the
appeals are prosecuted and they have been consolidated for
hearing in this court on one record,
The record discloses that sometime after the order
of Septenber 22, 1995, was entered, complainant became suse
picicue of hia wife and employed Brusenaux, e detective, te
investigate the aatter and at about three o' olock on the sorn-
ing of March 30th the defendent was found Living in one room
ina five room flat with frince Kenedy xe hie wife, When the
detective on the morning of March 30th found the defendant
and Kenedy in the room he called police officer Arustronge
Gomplainant was also notified and he, with his parents, went
to the flat and they a11 went into the room, which wae then
Gecupied by irs. Thornton, the baby end Kenedy, Kenedy and
Mts. Thornton were placed pnder arrest, snd the police officer
stated that there was no place to take care of the baby and it
was taken by the compleinant to his mother’s home, There is
® dispute in the evidence as to whether Mts, Thornten ree
Quested her husband to teke the baby, in view of the fact
that she was to be taken to jail or whether the baby was
taken forcibly from her, The court was of the opinion that
the baby wae takm from the mother against her protest. It
further apyears that Kenedy wis tried in the Municipal Court
on a charge of disorderly conduct ond fined $15.00, As to
pe
woteen eff ,eelteateh « ,xucosw ,4 aabixed? teaghagn
hesstes ruse ot eT LSet a6 bee gateaad YoY me omwd
cepitto ankloe odo gttgretealh Ono yershe etweaqen worm
tquedine ‘to veltim daadiciqmen adf yatbult orf <edee ott Daw
aohtalokv es 980 ,O8 dowex no Yad why yatdad vot eever to
ot nit yatomeane hay .B9CL ,88 eminedgee to tohr0 ent Yo |
harsetea tah7De salinte A baa aca viaweo ome ai bab se rid
act + ante Anehis wnt eansit work as ee sunomut yan. i
re? hagabiioane aed eyed yed? ban batuoneony ors ae!
“pote te Cos e
_sbroost ome mo tro aise mt gadtacd , |
astro od <eets ambtodes tec? edad foaks Hedyex “ede END ern
| mth eeeoed Pandtetame berets whe \8ONr (8S ebdadtqed to
se yeriieekoh a peummeires bey tine bao otiw abt te: axoteta
ton 64 to dyaleve sends $00de te baa cootee ode etayhtbovad
Boot Ho of yatwht bawot ebw faabastoh odt A908 Moxek Tega |)
ade andy okie ai4 og Yooned some dtiw seit mockievit a as |
Harkuoteh Sat hawet MOF Gta Yo yrtcrow ede mo-owlseeres |
~ wgnortewss woo ftte sok log belies of moot odo at qbenz bas |
Saew aimee wkd Aw yet how neReod Cele wen tee tatgNOD
ae aw do kde gmooy Bed onmk tab Lie yeile hie Gat wine! oe 7 |
“bad YoueN oebones haw qed OH aero Le ew DelgeeO
siete vod tr hae heen ‘enbiiy besiane orem aeindene |
md pant nie ata and et “teansasa i moe sat vm . oe q |
et BONNER Akt endings of an sonsbive ot mh 4 stuqelh s 7
doat ot tm wake wt puted oat eset or ps nds sure 204 botnaun 7 |
scan Yan! ode godgarty te Liat of neat Pe Med gerd ft a q
pal Hokaige sat 2O gam Seaon OAT sted me 7 Ok 2 a
stator ted fonieys tedtom Om pease —_.
iabnaaed edt pd bolet acu ybane® media
ote
what became of the charge placed spainst Mra, Thornton,
the record is somevhet uncertain, but it indicates thet
she wae siso found gulity and placed on probation. fhe
@vidence further shows that about the tine the ense was
tried in the Municipal court, beth Thornton and his vife
were represented by counsel in the divorce proceeding
and that after a conference, Mrs. Thornton signed e
stipulation agreeing that the father might continue to ree
tain the baby and that he would be required to pay no more
alimony, On April 20th following, Urs. Thornton wae
represented by other counsel end ehe filed her petition
on that day agrinst her husband, praying that he be ade
judged in contempt as above stated, and it appears that
about that time oomplainant returned the baby te her,
Gonsiderable hae been stated in the briefs filed
- #@ to whether the proceeding in the two appeals involved
® @ivil or eriminel contempt and also whether the proceeding
ae to the detective Gmusenux was void beommse no petition or
affidavit wae filed azwinet him setting up any reason hy
he should be adjudged in contempt, and therefore, the court
hed no jurisdiction as to him, n the trial of the cage the
matter was heard ee though it was ® Givilycontenpt. It
was not suggested on the hesring that the husbend Thornton
should be dischargedon his sworn answer filed to the petie
tion, Yor was it suggested that the respondent Bruseaux
should be discharged on hie sworn testimony but 411 parties
treated the matter as though it were « civil contempt. We
think thet as to the respondent, Bruseaux, the court was
without jurisdiction, since there wes neither petition nor
affidavit filed, setting up whet acts it was elaimed consti=
tuted the contempt. franklin Ynion v. Feople,220 Lil. 358;
shoranons oth daeikge keoaky aytancio ode 20 teeded Puce
face abteothat 22 dud abeteonme sndwanoe al feapet wile
2 oLtedeng ae kaneis kee yt Eig bmsok cake ‘eaw wits
ae MAD: ede onit oft foods tate wrote weodoentt sons pewe
stiw ald boo motmrasy dted ¢ewod Teqioteut we wh) oaks
_paiboavore sosovlh ott ag Loma we heseeRerqss oxen
te take sedmned’= 26th emostet@hres: atedte geMtd smn
oot ot soektaco tty. de. toe et ast tale: gateunge montotuehee
otom Of YE OF. Hen sHOes:» od Piha od fede baw uéed ott tse
jaw mosaredt .#xi gandeokse?. tO. khrgh int om
woke BP ee red Soft} ode bas Spanwoo radivo Ral Soranaenqen,
“mba od oa Peat ‘Ghiyeta baedawd r04 teniags vb sate A ha
gale atesegs $4 baa sbotete ‘eveda ' we Sqneeace at b ma
wed bad — oar bowie or ‘neat tan00 omit ‘pads me
a ae:
ron tered edgy Pr botata, goed. wail eidocobdeme (6) 00 peel
heelowad ataonga, out sil ak gakbornorg ott oni at ee.
gasbsaging off todiade eade bos tqnctaen Inakekye wokinto ws
a6 mo keiieg on sessed Dov Gkw Warman ovitestes ehh et ia
. Noe seaaes wie ge gakétos wid Penis BOtsh aot sevebe ee
P09 nif, oroher alt bag «que? q0e a2 bogouths ed Biwedwimdy’
ad? see0 oft To daltd oft 60. mid ot ae mattocba test wR
#i stqma¢acey iivis a gos ¢4 tquedt ao beet mow mer eina
— MOtETOM? Hanes gng ted? gatysed e423 ae batoaggae ron my
whioy oft of bells towane atowe mist seb zadomeb oe inode
ee ere taabreqann od? fadt botasapire a2 go, Rath mont
esttrag Lis ted YRomiterd orscwe ak nr Deyraiionth of Biuede
Os temneaoe Like, fren $4 Kownthy it NT as ade benognt
BAF Oe M8: anmeNRNm, stashacaeys ant 0¢ natase dandy”
non noleigeg. nat ion eam ont, eons aeostokbatmat seme te
chferos hentale nas #4 atom sede qu yattton: ,debeh sivabeyne”
em lth OO BE F siic atl BAAS ‘stent ae ba
Se
SS SSS Se
——
——.
a
a=
Heke v. People, S20 T11. 174. But *@ do net wish to place
our decision upon thie ground, beesuse we are slearly of
the opinion that there ws no contempt of court shown.
When the sother of the child and Prince fenedy were found
living in sn open etate of adultery, and when the evidence
unquestionably shows thie to be the fact, there was sothing
Pithin rezaon to do but to tke the child as mis done,
It was three o'clock in the sorning and an order of the
Gireuit court in the divoreoe proceedings gould not have been
hed, hile it would have been sore prosper for the huebend,
Thornton, to have gone as scon aa pessible inte the cirevit
Gourt and presented the facts and have requested en order
thet he be given the child, yet his failure te do so is
Somewhat excusable, at it appernrs frou the evidence that
the aother of the child, after conferring with her counsel
agreed to give the feather the shild and te release hin
fron further peyment of alimony. Lister on the respondent,
Thornton, did seve the court to give him the eustedy of
the child 2nd that he be relieved from further paysent of
einer. wut this notion wee denied and ve think exrenceusiy
@o for the reasons siready etated.
fhe teo sppesle are enronsowbly entiticd, * People
i ef the State of [lincis, appellee against Sheridan A. Bruseous,
1 Appellant, and People of the State of Illinois, Appellee aginst
Marion Thornton, Appellant.* They should have been entitled
‘ ®s in the divoree suit, linke ¥. People, supra, The people were
¥ in ho wey involved and the burden of folloving such appeals
Sauron
=“g-
aoade of. + thao, 200 ob a 8, oe ii one ison!
to insole exe e% aausced havens sldt meq goteloed wwe
sete SS EE PS te eee
Ye ane
won thse S ade note baa. _semasiabe ‘te tata a0c9 y= a Sik e's
eae OF, Sere aes See any
goidson sen arett toe? ort os a8 “sis avore “vicamois 8
tah gee ea Ritdo ose aka tus 03 noeson sui
ee gees, Feo Bet
_@if Ye sebte as bas » pateom outs at tooiete send
aesi evad tea Biveg eguibs
* Peas eT
eusttud att qot cecetg. ores, neat oval { Biuow vt oth? had
tuoet® edt ofat stdtanor es nce aa aney ovad of wucdatedt
saben ns betsecoen svat bas ciock oft pesnenerg bas Sxa0l
ge Sey 3
ah an of sf ovBEiNl aid fey qbilds adg owes os od taas
seed sonsbive add mort exsaqa $2 am eliauexe tadwoncs
/ foanves ra Asie gaitretace ced¥a bitte 949 to codtom att
ee ‘mtd sacalet 0d bre bitde Wah denser “Ste O¥ly ee Seerge
| ghabasqest ot go Teh” .weomllz te saeneag vadieut xert
te ‘ybotane od} ais avig of $4m0e off even BLS ,eedmeest
te teseyes rode t mort Bevelter ot od samt Bad BRM ieds
Tiawosmonse taidt ov bax Bokutt key motton erat Sad yymomtio |
oe | pn |
uO .A sabiveds taniqge oe Lieqga _safoan car to ‘otnte © oe te
WSR RRA Cty Bet sith thay
Mo: Ae. Tor: geek ae Bich diate Miah j
- BONERS INE gle R Ge REAR ape © teseaa a Big
MM det Mee ig ry oy
* pA z
av Pi eS He
CSAS SD agi gages ®
of
should not have been put on the Stete's Attorney,
The tro orders apresled from are reversed,
ORDERS REVERSE Ds
TAYLOR, F.J. AND THOMSON, J. GONGUR,
¥ j
Be ae Wy A A.B
yj ee
| “) wes is
ae 5
: Es ast # LG Hie wee cat
i
\ U
RD nm
oa ie ie _ ine pit
Sct ay sings laa ‘eit NM Hi
oan wih hii
Hy x
op “iis Mh
i i Se C a.
EY ep nga sta,
e mt
aE a, ‘ia
19060 = 31229
THE LINDEN COMPARY, 2 co¥p.,
Pysintiff in Error,) <APFEAL FROn
BUMICIPAL GOURT
re ee OF cHIGAGO.
DAVID G. JOYoR,
Qefendant in coon) ia
Opinion filed April 6, 1927,
BR, JUBTIGe THOMSOS delivered the opinion of
the court,
fhe plaintiff ie in the business of furnishing
interior decoraticns and other matters connected therewith.
it brought this aetion te recover *for the reaeonable, ueusl
and customary value of good# ani merchandise furnished «nd
delivered by plaintiff to defendant, and vork and labor per-
formed by plaintiff for defendant, at defendant's special
instance and request, wider verbal cogtracte,* entered inte
between the parties, as set forth by the plaintiff in ites
statement of claim. The amount of the slaintifft's bill, |
as set out item by item, was 6194,369,46. Various paynente
en account were acknowledged, aggregeting $80,080, leaving ~
® balance of $24,289,646, as the amount sued for, ay his
affidavit of serite the defendsnt denied thet the smowunta =
waking up plaintiff's claim were the reesonableg ueual and \
customary values of the goods end merchandise furnished, or
the lebor performed, end alleged further that on way 3 venaeiend
there was an adjustment of the account made between the
parties concerning 411 the sitters involved, and 2 settlezent
had bet®een them in accordance wit! such adjustment, her by
oqo # aPRSSEOD
eal gadvia (aera et Thttdiert
‘HUG Jatlo rum
z) eo?
opapiss %- | :
; Ores .o arvad
De ee, cK at S00 WE 9 04 4 eay
RO 2 eek 5 Doe BS é
VSL <9 Litqa Bbaiit aoimigo
to agtaiqs edé@ Setevifeh SOSMCHT 201THUL .iR
| Pewee edt
aeideiate? te atentesd s49 a! ef YWitaisiq oa?
.Givereds Satesancs avsitan tedte baa exolsstessh roltedad
fayes ,eidanosas: ed? sot* vevenes of acitea elm? ddguesd ek
han Sedsiew? esibaaioter has aboo, te salsv yramotes® bes
~vaq todas bee dees Bae yianbacteb of Wismtele WW beteviied
3 fefeece q*tusiacdtsS te ,faabesteah tot Theta lelg ww bewrot
ofat hoxvatae *,etoaxtgee Ledrav sober sseeupex Ane sosas ead
uti ak Théseielo of¢ yi dire? fea oa geo idtag add ceaeted ‘
gifts ef Ttitaisis sd? to dauémeotT. .mtaio te tnometate
staseyog evoite¥ .82,068,0053 uae uest ys noth duo tee ne
gaivesi 080,068 sattagetgp2 segtelwomies eres taeees 80
sic yf .t0t Sere daens add as 4,88 688,859 to — «
Staweas oct tad dstae foxhae teh edt stixea Yo tivent
bes inves yoldanosses ade aren inte wetitatels gy guises q
10 ,badeiarst satheaderae we sbhoog eat 20 eevlev yramotewo 7
1888, (8 Goi 20 sadt xedtwt Begelic bar ebowretreg todel eg 4g
eid neowted ston _dmveses ont to teeetauibs as eae scott
fuoseitsos 2 bas ,bevfovat exettaa sdf (fa gatereonen astenaq —
We sendy yon ts ete eonstrooes at andt mpewted bod : |
i
i
fe
thé defendent paid the sleintiff the sum of $40,000,
whieh the plaintiff had sccepted in full setisfaction ef
all ite claims, fhe cause went to trial before a jury
end at the close of ell the evidence the triel court
sustained the notion of the defen‘ant for an instructed
verdict in bis favor, and pureuent thereto, the eourt
instructed the jury to find the issues for the defendant,
Such a verdict sas returned end judgsent entered ween it.
To reverse that judgnent, the plaintiff hase perfected this
appeal.
In support of its appeal, the plaintiff eontends
thet the oayment of the 646,000 aay not properly be given
the effect of réleneing the defendant from the liability ef
the balance claimed by the plaintiff, because the evidence
shows thet there was no reasonable, bone fide dispute aa to
the amount due, execent as to corte in comperetively trivial
iteas. It is the pleintiff's position thet if a eertain
sum is claimed to be due on/aveount, #d there is no bone
fide dispute as toa a portion thereof, the payment of less
then the admitted portion cannot be conetrued as = release
ef the whole of the admitted portion, & number of authorie
ties are eubmittéed in supvort ef that eontention, It will
mot be necessary to refer to these authorities. They are
not questioned by the defendant, aor does the latter sontest
the proposition urged, se stated above, The cositicn of the
defendant ig, however, that this proposition is mot applicable
to the facts as disclosed by the evidence, te gave carefully
@*asined 411 the evidence in the record, and in our opinion,
it sbundantiy supports the defencsent's contention and the
ake
2,08 Yo me edt Witalaly ome blag tasbasteb bod
te aalftostels sa rot ak hetqecon had eigatatc ev do kin
YIsl # eroted Letes. oe Gnew cote on? .emtefo aft ffs
ftuee Eamet of? senobive ed? ita te aaafe sd? ts bao
- Regentteat ae ret taahasten sat Io soltes ale boniatase
Frees adg- aotonodt fnaustec Sas ,eovat eit m- folbres
Paabasteh efit 10% amuse? 68? batt of ‘etal ody batowites:
Pg seq beter x0 tnpegbet bas beatutet aaw tolbisv @ dou®
aig bedvetteq est Wairabszg Jo Hoomgbut ted sezever of
shnatace Wisaists adt .faeqqe ast Yo Sroqqua ats’?! SY
anvils od yinegoty fom Yaw 000,088 edt to Apa ott gad
te. ytsiidaks O63 gest teabawtoh ode. gatess les ‘to #cotte,.
wenshive edd agvened ,Mitataly sat yd sentatenieaiaaial
oF 88 ‘stugot) SREY ggac 49 !canceeen 04 ne orndt dade arose:
sakvine Usiliatecacn neers et aa fqooTe yeah tases 8A?
aiazese # 2h feds acti ieog at titiataic ‘ads eb Or 6 wanett
sued cx ef sxedt bat weqweaee\go eb od of hesiale of ame
easl to deamqey ed? .toorsd? acltrey «of em abadedt one?
Suselex 2 ae besrtenco sé tonsse wolfses Sageaaba odd math
sitoitua te cadmium & .welfrog hettishs act te‘slede eae te
on YON? eatdteocrue onadi ot caer oF ytaussoan ed ton
oat It neielace adf .eveds Seteta ax oyu moltieoqorg edly
Picwméigge Cae 61 golsiseyerg Bide sade ,eeverod gut sembacted
Miluteceo org 08 ssombive ont wl Dencinate as atest add of
OlmegO Tem Ai bar ,oropar edt at soanbive oft Lis Samimane 4 |
| oct bam mo itaagnos. witactmeteh edt ePxequue qiimabmule th
ae gees Seo tio ek gues. Siw eeuetecnna cf ands re > |
Pot
ae
ol
ection of the trial court in allowing his motion at the close
of ell the evidence,
The resord shows that the plaintiff did seme work
om the house of the defendant's gether at Clinton, Iowa, in
1926 and 1951. This work was entirely finished und paid for
in full, snd is not involved here. There was later 2 com
paratively small snount of additionsl and extra work done
out there, which does seem te be involved in the itens
here sued for, The pleintiff«then waa given entire charge
of moving the furniture and other effeeta of the defend=
ant, from me apartaent to another, in the Gity of Chicago;
making certain alterations in the apartment to which the
@efendant was moving and attending to the entire furnish-
img of the apartment. The ¢vidence further shows that
the defencent purchased an old house in Kismi, Florida, and
engaged the plaintiff to remodel it completely and furnish
it throughout. The account here involved has to do, for
the moat part, with these latter tro astters. The last
of them, - the rork st Miami, - was completed early in
1922, end the plaintiff began to press fer the payment of
its account.
The record shows that et this tise the plaintiff
wae very hard pressed for ready cash. It eas apparently
geing along on a e211 working capitel, much of which was
put into this work which had been done for the defendant,
The president of the plaintiff company teatified that his
eoncern, which wane owned by only three er four individusis,
had a rather hard time through the ter period and in the
early part of 1922, they found themselves with practically
, ste
genie ot bis motion aid gins ae $5009 faise ak ts. xo = :
izow suse B26 TtMaisly oo sold adword Sedooe aah “O°
gk ,gvel wtesaitG t2 todite ‘etfadknstst ef? te waved ie tas
set bise Bas Bodatnt? elsritne sow dzov ala? ther Baa 688!
mace @ G6$ef daw ered? Jered Seviovar You of Bas . itv’ at
pick d¥ew <tfxe es Goacieibss te tavced fiewe ylevidareg
‘eal tit at wevteeit ad eles ail hill Slade tal
sateto erties devig naw kedte ivataty ett .x0t Bese ote
sbacteh od¢ to sfeotte tedte bus euréiave? off wo sad
egret. ¥6 “SIR of? af etodionps S, :
fotenst outte « ode, oe pathuaton ban even. 8Ae SRP
__ test eveds tedrayt songnive oct M 23 ne 8 ot 3
bas webinar’ sot me eauod Ato as beaedte 3 hab. 2s
Geieest 2 hae tiers fae +4 Sobomes os Wiratale 7, poy mma q
“wot web oF aed heviovas sxed sasocc a eat.
‘teal oat refine out xesgat spedt ase ol pitopons
on l vine Bede iome cen - ~ ~ steaan 4 $s tro ed? = —
ee a
eeneunnsiiontanl siysaieantclssciaicwies i ie
a4
all their working copitel tied up in thie work for the
defendant. it was the plaintiff's custom to receive paye
ments from time to time on the work it did, amounting to
85 per cent. For some reason thet was not done in the
ease of the work for the defendent. ‘the consequence ves the
plaintiff found iteelf hard pressed for the paywent of the
aecounts it owed to others and they were under the necessity
of bringing about a payment of their account from the defend-
ant, or being in danger of benkruptcy. fhis being the situse
tion, it urged upen the defendant's reoresentatives an
dmmediate séttlement of this eccount. These representatives
of the defendent met such efforts vit the complaint that
the account involved over-charges, oth aa to certein laber
items and as to certain material items. The pleintiff gube
mitted evidence tending to show that the first complaints
of this kind were made im December, 1321. The representatives
ef the defené=nt testified thet they began seking these
Objections of overe-charges much earlier than that.
fhe negotiations between the parties fer a settlenent
ef this xecowkt involved » number of conferences, One deerge,
& ereditor of the sleintiff, whose account with it wae mede
up, at least in part, of items which seen to have beem in-
etelled by the pisiatiff in the defendant's house at Hiami,
conferred with the defendant's representatives a number of
times, in an effort to effect a settlement of the account,
between the plaintiff and the defendent. At one stage of
these negotiations the plaintiff urged that their ontroversy
be submitted to the Association of Commerce Gureau of Arbitre=-
tion. This the defendant's representatives declined to do,
at one stage of the negotiations the defendant's representatives
Ax
—
ads set duow aise at qu belt istiq~w gatizoe shed? fis
SAP.
“qaq avieoe: of modem a'Tiitaisiq sd aay 22 -tnabaoted
et paifacoss .bLb #2 deew edt no onlt ot ont? port aaaon
@4% ai eaeb fon act tadt- sonsdey onde “tet —=Faao xeg 88
ed? exe eogeapecsen edt - | pgaatiastes sah cok drow 28% Ye een
° gt to Pueeqad oct tet Boateng bisd tines haved Wiemisiq
(@intecsa sae ¢8hny Srow pod? baw eredso oF beue $2 atmucrse
-pastes 44¢ gett @mwodes tThedt To ganeyay # gaeda gatyatse Ye
orthe od? yated ‘lat .wodguisasd ‘Yo ‘wegeeb at galed xe aon
fe ‘eSeisodwiser¢et addiiavies ‘get foe ga ek non
eeeitetseesreet sued? .eavedos eff fe seawe leche 8d888
Padt gatelcees edt ftw adeette dome dan Sashasteb ‘e6t Fe
nodel dtatics of en Aad wiogtato~isve beviovat dworse eit
wise Stalag ed? .amett isitetam Atatxss ‘ot ne ban emai
adcinfgues duxt? off Feld weds oFlgathae? seohlve ted
sevitetasessqe: df .f96F yrtdaecet at etea stew Bald aidt to
weed? naiiee aeged qodt tady maieiied tainadteh —
i wtad? gad? 1eiiaes dese segt .
deonetsten u x02 sotrray ott svented eanidaltoyea pit Pre
sogtesh Spd sseoasts lace te rede 4 hevioval taaovos att 20
stem ese $iiddiw tavccee weeds ,ttitatels edt te wedi a
“i goad svat of ates dolde emstt to aiese ai fesol te oo
sine te caved a taebis tes oa a Wisabete att w boiiste
WS wedece «= gevidetaees<cot a! donbesteb ody “ote ia :
wfaweces edt te tromeleree = dos tte ae Faette :; ant 3 iia
‘t went wae $a fitine tb | at bas a iitatalg Sat downed
es ee ae
ete
staged that they would pay the plaintiff 932,000 for a_
settlement of the account in fuil, At this time the balsnes
which the plaintiff elaimed was due it, ras approximately
$64,000, The plaintiff declined to consider the offer of
$22,000 and mace a counter offer, agreeing to accept $50,000,
‘because we cannot afford to stert suit and wait,” Tris
offer was declined. in the esurse of these negotiations
the defendant wade the plaintiff two payments of $5,500
each, one on March 6, 1922, end the other on Narch 21, 1922,
In ¢ach instance the sleintiff signed = reseipt in which it
was agreed that such payment "esa not to impair, te any extent,
the right of the defeniant te demand 2 prover accounting, and
te object to the quality of aaterial supplied er the prices
oharged by the plaintiff. finally, on one of the first days
of yay, Hr. George, eho with representatives of the plaintiff,
hed prewicusly mide several visite to the defendsat's offices
and discussed a settlement with the defendent's representatives,
to no purpose, made another ¢all uren defendent's repregentae
tives, slons, and disoussed the situation with them further,
On that cecssion an offer of settlezent, on a basia of a
further payment of $40,000, was suggested in behalf of the
éefendant, end Sr. George said he would submit it: to the plaine
tiff, He did so and the individuals making up the plaintiff
company, discussed it and concluded te accept it. The de-
fendant's office was advised to thet effect and on the folloze
ing day « check for $40,000 wae delivered to the plaintiff
in behalf of the defendant; and when the plaintiff aecepted
it one of theofficers of that company executed a receipt
im which 4¢ was recited that the plaintiff ‘received of
David G. Joyoe, pursuant to negotiations and settlenent of
| prot 000,88) Tivalale edt oq blue yet tab agate
sonaisd ‘ott ont ats aa “fink a2 tauenos eft to ‘snenoisson
:> wee
vist sntxaxgq ‘een i out eam beaieta Husaletg ade fokte
te xetts sits xeblenco oe bonstoa Iismisiq oot * {000,888
ee Re Rae ith
4608 088 $aac0s oe gateorge szetTo eotau00 s shes hos re)
& ira Pea -
eict ‘ttew sae ie exete 8 brotts: ‘sonase we
+3 Bea a RS seus
acolsattogen ‘ened te eexoee od? ‘ai beak tos ase ase tte
oe ee ae
000,88 Re et asmyes ‘ont titeskaix me aac dashed edt
bel gee
eee it doast ao wadto add bas abi8L 3 dorsi a0 on —
+2 ime a ‘tglsoor 2 2 semgie ttigatsic cad sonkbanh dban of
stacdxs qzs ot stiage ag ter ase saseyag “owe taitd boomy pil
Sa2 “gatas Teqesq 3 ‘banmab of taanasted ode "fo $45 is ods
woe lrg ‘ei¢ ze he tteave falsetse we ‘Whines ode eager od
egah tert aa? to oxo a isa sipaielg ods “ ‘peguede
sthidabatc eat te “eovitatassergst tie ode aT980 “a ree “Yo
: ‘sogttie etiaedasten ‘edt ae ataty iexoves ohae ‘ylewolwerg bad 4 bad
S9visal aeeaT EST 5" fushos tab ads tie ftmnsiiies. 2 ‘besaume tb hie
nopneeexaes p*¢asbasteb mequ Lite sedtens om sseegrans ‘io
“etedient sedi dtiw eoltentis od? besempeth bas. yeaols ,eevit
2 $6 elesd « 5G. ,deaneitier Ye askle ae setessec tad? go
ad? ke tiaded #2 peteeguim esy 7009,088 te deengeq sedetet
waisig eat @¢ of: fimdve Sliver ef bisa eyt090 «1% Sue taabae Tob
Yittutaig af? qu gaides almbivinal edt bas 08 2h OB hae
ob sgf 22 dgs098 of habulogop bea of Beeawpath.<yarquec
esaiiel edé wo has gpetie fads of Becdvbs fax eoltho a'sashaet
tiiesisic ei ef bevevaleh sew 060,009 tet dwede a, yed gat
bedasees thiteiela eft sete Raa ashasteb- eaten anticenet
tqisoss « botueexe Ynaqeso sade Yo exag.
“fe hevisoat! S2itatste sae on potters non 4 de he
ola
disputes over work done, charges for labor and prices
for material on contracts with him concerning his apart-
ment at 333 E.et Welton Place, Chicago, end his home at
Wiemi, Florids (end as part of the lump sua of Forty
Yhousand Dollars this dey peid to ua), full payment and satis-
faction of alloclainms of every kind chateoever thet The Linden
Gompahy hae in sonnection with the covtracts end work
and material furnished in end about either of seid preminaes.*
It appears that the plaintiff executed & similar reecipt
agknowledging full payment and eatisfaction of «11 clsime
it might have in connection with any werk done at the home
of defendant's mother, at Glinton, jows,
In our opinion, the evidence ia clearly to the
effect thet there was a bons fide dispute as to whether
the charges made by the plaintiff were recsonable and
proper; both as to lebor and aateriale, We are further
of the opinion that this evidence olearly shows that the
items exiled in question were not trivial but were sub-
stantial both in number end amount, There is no evidence
in the record, which, in ournopinion, either shows or tends
to show that the representatives of the defendent or that
the defendant himself, at aby tine admitted that he owed
the plaintiff sore than the aggregate of the payments which
had been mude, end the final peyment of $40,000, The
evidence submitted by the plaintiff shows thet on the occag=
ton of one of the calls made by tr. George, with one or tro
representatives of the plaintiff, the plaintiff wae oclaime
ing that 2 balance of $60,000 was due it, and the defend=
ant’'s representatives were offering to pay $32,000 in
oie
goo hey there vodet wok aege ad, seaod es 870 ® The wis
woh EOE wha sul mreonce ams date stonnsa03 6 fatrosan x02
is swod abt bea deucodd ovat’ nortet tad G88 ta tans
re 6 ae qurt ode to frag ‘aa faa) ‘abivort yea
wake ow tre Pasay oR, “pha stow oe ‘hag we “etety ) waite aasiiod
soba oct rat aevecetate bana rrave te ) antofoiie Ye a a
tou baw eteerdien ode siebe noigooange ah sad om
* ean beord bhee to radtio toon ‘bas ah bade tow istaetan bas
tqlasen rattnte a bos unoxe wifemiate ‘ode fade wxeoaaa 2 et
‘awtefe ite ‘Ye aoisenterdan bas Prom yen “Lut aa beLwoatha
. ome! ade +0 on08 sow as in oktonanee ‘at vad saae
; er eootas 20 t stadton at tamaoken re
ect ot ylitaelo at sonehive ate einai nian it wei 1 Mesa tie
Rodiedy ©: aa stuqath ght’ ggod & nee axadt, cade potty
has aldenoasne oxew eitatatg edt ys ebam emgrade edt
Sodtrct ote ot iaisetean hao todat vot 0° ted amen
oat add ewada ylicelo eopebh ive, hdg, tadt gotedyo.
sdue anew ted Latwaad, toa aren A08860up 82 Dosine asott
somabheve on af axomh,., _gtasome bas, wedwue hte dalerte:
viget XO anata tectle —Aohatqon mo me ito ashe TOMS ee, A
das xo soninatad ewe Ye aowstasaoaongnn ait. tat ode ot
hews od pads detidabs owls yde, 0a glinamld taahan toh, ot
aciiw agaemyag ast to etagonyy ny edd, aadd mene i
BAT gAOA MG Re sranyaq Laalh odd, bein «6
~eaion sit ne tadt evoda Rataialy edt xe hettimdas sogebive.
Qe To oe Cle ,oytee® .ne YO, ebam, alive, ort Seemann.
wakelo waw Tigaiety ods ekenialea wat 3o. a
~pootad odd fa gt oirh. asm. 000.008 te,
a orate Tat, of, BARRO RAN, UTADA anNEREN:
SEES Se
a ee ee
.
ova
settlenent of the entire controversy, and ir, Ygner, of the
plaigtiff: company, "Pel ied thet they could net accept any euch
set tlenent/ one of the representatives of the defendant exe
hibited a telegram, from the defendant, sho apparently 96 in
Miami, enich had been sent to his attorney, and in shich he,
said in effect: *if you are attempting a settlesent with
The Landen Company there will have to be # aaterial reduce
tion, I especially question the price on the furniture
that sas made to order.* me of the representatives of the
defendant, who, according to the evidences, had entire!
charge of his accounts and attended to the payment of
his bills, testified that he was complaining of iteas ehich
he contended were cverecharged, from the early fall of 1321,
and that he did net receive & complete statement af the
defendant's bill from the cleintiff until Harch er April,
1922, and thet in diseussing the vericus itens eppesring
on the statement, ae then stihmitted, with the plsintiff's
representatives, he took exeepticn to practicelly 211 ef
the items involved.
fhe plaintiff's statement of claim is on an
unliquidated account and the preef abundantly sapperts the
fact that such was the nature of its claim, In our opinicn
the evidence shoxrs, ag above stated, that the dierute made
by the representatives of the defendant was coth bone fide
in character and saterial as te substance. The plaintiff
saw fit to settle ite contested claim for a further ossh
payment of $46,000, in additics to the payments which had
previously been wade. That payaent wes, therefore, a complete
satisfaction of the debt. Rose ler v. Lampe, @9 Ill. 712;
Ennis v. Pullsan Palace Gar co., 165 111, 161; Ganton don do,
ate
eft to .eemmae .18 bas vestavestass oxite aaa bid ae.
down Yad fqnens : toa aiuoe “yea i radt bad tae 3 eo —_ , rt
“KS fachasteb ost xe Ree hs xd sonatas: ott to sae \aas:
ai Btw _ltsotegge ose aS ashsateb ods gott saats ted a vetitdta
gat doide at bon a tetes tes etd of ¢ mis nad bad dotde (teeh
agie teaseltess 8 gaiéqensis exn wo" ° "oh a tte
<ouber ishtezan & od of owas {lie siadt qtnemod ‘ube,! oa?
__ Sentiaret ed? ae sinc eae aotternn qlisissqes Y° jaete
eo te sovltad mestgot oat ‘te om *rabte of obaa enw tay
forties bad “seunbive ong od gattrecse ode” <éaabie anneten
te tremyag oe oe bahnedte bas etauceea sii ta tee
dolste aesee te stateiquen aes aa tate ‘battiaes itié bis
(HEE te Cet yleae add wort sbogtadeetere actu bebawedaco 3A
| fd Te Feeeetate edelgues- & ovtnont fom bib ad tad} bas
anal ao esr Litew VEBalada ade gork Likd etgushaeted
ye Swett wwokIey go? gateamalh af date bas. gSOVL
‘g*¥tleeinfy oct dotw Sereiades mee on stxoméists adt a0
to Tis en 2g Pe ree: srowkset nese
r * _— deeded
ta od Fase aay,
ps ACS ies a F
et Ae
me haa eo xe ok — ati te ersten oat ase sine 1a tier
sbi stumene ods tess <hotote "steda a ever von yank ode
obit guod dae eae éankastsd eas ‘to sevédages tells
Yibtalase off sonaeadue of aa “Iabretan tee vad
dese radsew « zo? etaie betestno ar ‘algae:
bat so be atesaye brad of colttbbs at 4000 oe aie , |
stahien as csrotoreds eral tmeyag gaa shame aed | ‘gfeeo bs |
ers Lon ee Ge ga 2e pages ote 20 weitnatel
| 8h tsa staat ‘dat Ut ‘BBS an
ofa
¥. Porlin, 2165 Ill. 844; Kell v. Block, 319 211. 329,
The situation is net changed by reason of the fact that
the plaintiff found iteelf in a preesrious financiel pesi-g
tion, and wes induced to secept the settlement because
4t was hard pressed for reedy ensh ent working cerital,
or for any other resgon not esounting te fraud and deception
on the part of the defendant or his representatives, which
is not claimed. As pointed out in Upited Stetes v. child @ Gey
12 “ellace 232, if the contrary position were sownd, no
party could sefely ray, by eny of compromise, any cum less
then what was clained by him, for the compromise would be
void as obteined by durcesj provided only 2 erediter accepted
the amount offered a5 settlement at a time when he was hard
pressed for soney. fo the same effect is Gage v. Barsaice,
87 ill. 329, where a creditor sought relief from a settlee
ment which bad been made with a debtor, claiming that his
mental condition and distress were such that an unjust
advantage wae taken of him in enforcing the settlement which
had been wade. Im NoGormick v. Sity of 8t. Lovis, 166 Ho. 518,
the court said: *If parties could plead in discharge of
their contracts, that they were foreed into them by reason
of some financial strain brought about by their contracts
with others, then tut few contracts would be rorth the paper
used to have them evidenced, All sompromieée agreezents are
the result of © desire to evert or avoid some threatened
or possible embarrassrent or inconvenience. Otherwise com
promises would never be effected." In Hackley v. Headley,
reported in 45 wich, 569, ond agein in 50 Wich. 43, 2 vlein-
tiff claimed that his pecuniary straits eonstttuteac
auch duress as should relieve him froe a settleaent he had
aie
Sates 2
088 tis ee ite. Sin ikl. an tied =
tad? oak suid te soerer yd Dbegueds ton, at. “BO ifaut ix ea?
~igog faisneai? avelzenszq & sé Binet? dbentt Ritatate oft
pensned gaeeeltiee 262 gces0e of Soesbal sew bas, jwckt
| ghatiqas geidzew fas dase qheer vet bexsceq bred: ace ot
aoitesesd bat bust? of gattavane ton sogexe nadte yas zeb xe
— pie: eid a¢ sasdatteh sd2 te dsaq oe ne
: 298852, Stal] at tue betaies eh .daxtelo ton st
on ,baNee 2599. moktteoa eestiaen aff 2S .S8e gosiiax 82
seal eae (ee ,seinerea 3e yor Ww Yer Vistas BLsco ying
ad biney eslmorguen ad? tok sid Vee
batgssoe tedtbents s yise oshivesy . enone
buat vow od osde omit © te. pero eten as bene dein alk
iezel .¥_eugy af faethe seee pd? of ..qenue woh heeese
~si23e5, s eork. eile: tfgeen segiberg 2 eyede 8S of 'S
aid gad? gaimtala .sotdeh © Atle eben anad, dad.
_taufay 28 ¢e23 Jom, expe. sawneekd bee aota
duidy duometi¢em egg gaisrolee al eid te apiad. pe: tantemanes
iS wot G2 hod .f8 Bo ease *1 ipbcebes ot -ebas ened bed
te. apcatieth | al bots Bias aoktiag ue : thes s2ueo.
aoenne ed aod? etal ‘beomet a wat sat _setesst aoe co cine
agnetizen isda ei a note mentee tara ae
tedsg eat dade of bien stpertace et tod ee ew
? baa iol
are atossesage netwotares ‘ta sbrannheve ‘snd ove rad o¢ bane
betetarsts ance Sievi ne 9t0W0 ot eciuad 9 0 ¢lvane ode
| . ei aihtoa Ge: 35>
Bess
€25 Se aa
a ee ee ee ee a a ee ee ee ee es ee ee eS Oe, a ee ee
axeibege . © xe.Bies ot andesite ow ‘roves soem pats 2c
Saat
“abst 8 aw stole OB ak ‘ateys baa 288 do 8b at
~ge
made of a disputed account. The court there well said that
*the validity of negotiations, secerding to this elaim, sust
be deteruined, not by defendant's eonduet, but by the plaine
tiffs necessities: *" * But this would be & moat dangerous
ag well as & most unequal doctrine, end if accepted, no one
eould well know when he would be safe in dealing on the ordin-
ary teras of megotintion with a perty who professed to be
in great nedd,*
In the Hackley ense, there was an amount due
from the defendant debtor te the plaintiff ereditor which
was undismated, Nevertheless, the court pointed out, the
defendant deliberately acted in bad faith and made clains
he knew to be emfounded for the purpose of getting 2
settlement for less than he admitted he owed the claintiff,
which settlement he was able to accomplish because of the
Plaintiff's necessities, That, in our opinion, ia not at
all the ense at bar. iicre, it is true the plaintiff found
iteelf laboring wader finencial stress shich moved it to
accept the settlement offered, but we find no evidence to
indicate thet the asount pald in sdttlement was less than
the defendant admitted he owed.
For the reasons we have given, the judguent of the
Municipal Gourt is af fixmed,.
JUDGUERT AFF LAREDS
TAYLOR, PeJ. AND O'OOWEOR, Ja COWOURS
fats Bige ilew sien? aed 2d7 .emuaaoS bavuserb # 20 sam
tous .eiain aid? of gativeoos samospabtogen te Wiblias ont
oninig 3&2 qd ted sPoub seo Aig Bcuie iis mens bod
oi tn hetencns u © as. piritan lan pli “slow a
a ee ee
wnihze ad? so yaileat at eles sd Sines sd node womi ifew Biwep
eS eh
ad of danse tone ode yotey & détw soltattogzenste saxo)
do tde tapibere Ptipmiate oA oF notden ta
sd ,duo Sobaloe duces <itt data samba
- teiate shen bes thet bad ah pstee yrétetre
* gf paldbey Ye ascites ee tet Netuno he at! cavemen ed
{Vhiewiale ef2 Asvo ed hotaichs of asdt wapplieece tes
“edt Yo sayaned Kalianusse of Si8e eon od dnbne li “4
‘Fs fon ef elites tue at edt” que ition
pavet Tiivaiaty edd sexd 2i #F oe” edit Vd ils warns
eg tf boven dotdy aeorda faicnens’ fanbase og
Reaeean «* Vee pe Hoek af. ‘i, stn ws te iat esta
aed mye haa of i ate ia mh soennays
betes webbed wes od ad Sahil oy vue
; i: i abel svettoe z aise ae Be aay ated ors a
118 = 31247
SAMUEL LANSKI,
APPEAL FROM
BURIOIPAL COUST
OF CHISAGO,
Appellee,
IRVING G. ZAZOVE,
Aprellaat,.
}
‘ !
|
}
Opinion filed April 6, 1927,
ie
a :
4 bere hote f Gvle eS
ef the court.
Judgment wae taken by confession on 5 judgment
“note against the defendant for $1748.00 in the dunicips)
Gourt of Giicage. within 30 days after the judguent wae
entered, the defendant moved the court to vaoate the judzsent,
and submitted hge «ffidavit in supsort ef the sotion, The
| defendant's motion was overruled and by this appeal he |
secke to reverse the order by shich that was done,
in support of his appeal the defendant contends
- that the affidavit submitted by hia made out a seritorious
defense as against the action brought on his note, end fure
ther, that the trial court erred in denying hia motion to
vacate the judgment, because the record shows that the
atteeney in the cognovit exceeded the authority set out in
the warrant, in that the attorney stipuleted that no bill
in equity should be filed to set the vacating of the judgaent,
and alse in acknowledging judgment for = sum including
$96.00 as attorney's feeay although the warrant merely
provided for a reasonable fee. Inasmuch as the defendant
qt gE isk el 30m
“ QDAGERD Wee
OS aS eel eee Be sad ~
a ee en ay ara :
eA Rh PRS
trompbct ad ze celaastaco w “nose aoe, $a Ged pith
fag bo tess oa st 00 .880H8 a8t gaxdast ob ang feais
see treseahet ade vette eyed 98 atieny og 60 L.
tusmgbot, oat etme t.. 2 sxs00 ode bevon taaba ab Oey . aot
oF aetven om te treaqua at Agro Ea, ef becd da ,
_ 9d feoase, ar a 9 TA
j sae a tade foe, iM. bs ta
eubited itea 2 tue ‘eSee eid « bees rede’ eb i
_ si hae ons eid ae ty ord hide’ eth ban
a sees aan caeriae S
stseephut ef¢ Ye gattsoey edt mee of hott? od bivode | ya ions a 2
gaituleat axa s ret tamil, evgresen d= at boing :
pa edt Qs founesnt vont cians ana EU Owen
=
sy
wee
hee sot seen fit to preserve any cf these aatters by &
Bili of exceptions, they are not oroperly before this court
for review, fo authorize the consideration of an alleged
error on appenl, which requires an inspection of the
warrant of attorney or the aote woon «hich & judgeent by
eonfession hae been entered in the Ciresit or Superior
Courts, those documents mist be preserved by ® bill of
exeeptions. Megher v. Howe, 1# Ili, S78; Seterman’v. Geton,
65 t11. 34; Boyles ¥. Ghytraus, 176 111. 376. This, however,
is not necessary in the cave of an appdal from & judgment
entered in the duniecipsi court of Ghicsge where the note
end varrant of attormey are attached to the statexent of
Claim. Plew v. Board, 274 111. 233, They were ae attached
in thie case, aut /the defensent desired to preserve for
review the other aatters which the trisl court necessarily
consicered in peesing usen his motion te vacate the judgment,
he should have preserved his motion and the affidavit he
Presented in support of it by & bill of exceptions. The
facet thet they appear in the common lew record, san avail
nothing. Austin v. Lott, 28 Til. 819; PF
v._Hauseda, 210 111. App. 155; Patton v. Young, 23% 711. Apo.
515. #ithout a bill ef exceptions, this court may not only
mot take these antters ints consideration, but it is impossible
for it to know what the triel court considered in ruling on
the motion to vacate.
in contending that this court mmy consider the
errors urged, even though there is no bill of excertions,
4efentent treats his notion as though it were sade under
secticn 21 of the Municipsl court Act, and cites cases
we a
THR « Re?
2 yd ereaties eseds te que errensrg ad n> geen #00 ene
sium widt steied yiregees, toe ete we .anotdasoxs Ye eit
fageiis as 36 noitessbiasce ect exgucdive rg aeleit wt
add to. se tfoaqent ae eetigpet doide ,fesqqs 9 PORTE
ed treegtat © do lde nog orgs oft ro pms eee
‘eiveqss wo diver£G wiz ak betegvas aged aod aotaeetaoo
ts LLG 9 ys bevnenony od tuum stenmvech soe, CaS
sftisg .w'ashted oy’ yBVG (tit -aT yeeee .w wetuee anoties
sxovered ,aid? ,OTS . ff STE .avextvsD> .¥ sefyod ee on a
Pram bet #2 Bort fsscgH aa te eGen odd AE Ytseeneea ton at
eon sat erode og seid te t2e00 faq te tags od? ab hexetas
te tatesd ste ode ot edna one Youtetes te anertay bas
“beatin 00 ores yedt 88 Att 308 bused .¥ .Y welg .atal
aot evassetg oF sexiest tachaote we\n
ee ea oS eae Aaa it
Uilxesesoen | 02 feat os aide erettan Borger >
FFs
a2 ‘vamp fquozxe ‘te ite a - a te spooky: at eae
fiers ase sSrocet wal monate od? at ramaqe You? tet dot
OG Axieswe Eaay xedet 1612 6S9T @2 ited .w giteea -gnidies
oooh HT 0e Shiér 9 wikia tat saat’ LE O18 cheung ow
‘eine fea yeu grees olde wane thatee We fit a toate te 88a
afvieseqad &2 ot tad _ a0 tere bands afak avedtes oosd? dat gen
xo siiaee at bers isa “Pts. anon! ‘ate seat ef ¢2 003
ee
Soe
Pea aM Sd
ew sontnace on san ‘iat ‘eats y gatbasenen al ; ‘
5 “PL wie Pes
a0 i$ cboxe te fite 92, ek orede Aguoe asva apt
$ Ce £ SA .
wabens bas orew oe goede es netvon aid ataert sazhas
Ys secs &. BH oF et bid
eeeco estio bas 1904 fs02 Lag tod aft to 16 molsecea
i SLSR. D-H eF picvetilasine =
<3e
Spplicable to th.¢ sert of a situation. This sontenticn
is clearly untensble. Defendant's motion esa meade end
must be treated, ss # section made in the course ef the
original proceeding. I was addressed to the discretion
of the trial court, and this court has ne meeas of ascer-
taining whether the triel court, in any sensure, sbueed
its discretion, without heaving preserved, by bill ef exe
ceptions, everything that was considered by that eourt in
eonnection with the hearing en the motion,
The defendsnt having made hgs motion to vacate
the judgeent entered agninet him by confession, even if
the attorney who eppeared in the cognovit, waived more than
he was authorised to do by the warrant of attorney, in rese
pect to the defendant's right to have the judgeent vacated,
it is not shown by this record that he hes suffered any
harm in consequence of it. Rather, the record shows the
contrary. Long v. Soffman, 30 lil. App. 527; Hanson v.
Seblessinger, 125 Il, 230, |
For the foregoing reasons, the judgsent of the
Municipal court is affirmed,
_ SUDGRERT AFFIRMED:
TAYLOR, Psd. AND O'OGOHEOR, J, CONCUR,
whe
acitastaoe at(T ,solteutie a Te Sree yode od Stdeotiqge
(dae then soy aeitnm e'fzshee ied .eltamsiae yltee te ‘at
_ eff te eexume aff si ahem solves 2 ee detest? oo seum
xeigexzesnih et? ef beseoxshhea esr f .paihseoete Eankg ire
-ysoas te easex ex ead geuse aids haa yhrweo fated of? 1)
oxe to lid wi .berresete gaived tuedtte ywitersetb art
°° 4g hPa ade. ome wt athe essen
Be ee Gripes NM
atmer oe nokton , etd sham m paired sanhaste ot sees
u acre a0 ka28 tron we ae Senge Sereeae sing bis
ast? ston bevtor sti venges ode at nerasqgs of . oa 0996 es?
woe mt syentora Yo tagczes edt Ws ob of Dextaostua neat 8
adeoar tepeg bat edt evad ee Sight attasineteb oe ot 2g
| wis Bersttee ead os tate buooer aidt Mt awed sede ton of a8
edt swede brener ont arent at te = asepaados at mead
ae 5
be eo
fe aes, eae PF te ae vos BB —
catia HA rome
Ses gee ab we aed
Lee
yas ee. aa tee a Rene Ohya as
2s wees egos aa “snare annete
igh ed ee eee ar ein 2teent daaben Ted
ee, Se fui Me ee ae ie asiéaen
reins & sey lo tes ae es oe ee wake :
es,
138 - 31269
MOLANE VAN INGEN, doing business
as E. H. VAM INGEN & CO,,
Appellant,
Ve RUNICIPAL GOURT
OF CHI GAGO.
GABUEL Ae SHITZER, and SAMUEL,
he SRITZER, TRG. g F OTe,
Aopellee,
: APPEAL FROM
Opinion filed Apri? 6, 19387,
BR, JUSPICN THOMSON delivered the ovinion of the
The plaintiff, Van Ingen, brought thie action
Sgeinat the defendants to recover a balance claimed te
be due on an Open aocount, this balance consisting of
eertsin items of interest aggregating $416.27. This
interest had been cherged up syminet the aceownt of the
Gefendants with the plaintiff, on overedue balances, The
Plaintiff ean located in Wew York and the defendants in
Chicane. A stipulation wae entered inte between the
parties, *for the purpese of mitigeting expenses * * * and
to avoid the taking of depositicna,* and for the further
Feason, as stated in the stipulation, that the feets stinpuia-
fed were undisputed, to the effect that the controversy
between them hac arisen as a result of the sale of merchan=
aise by the plaintiff to the defendents over « period beginning
in September, 1919, and extending to Oetober, 1923, In the
stipulation it wae admitted that the defendants owed the
Plaintiff the sum of $617.88, leaving = balance in diepute
amounting to $561.31. Invelved in the latter sun were
aaese - e8s
sonnteud toh OMT BAY yr
sn sak 0 aA i saa
ytanlleqqh (2 Peter rt eee
won't asta
AR RL. ya Lb ROR ORES . chin iin aa
“2R008 wearer me en Pg
ee wy
_ Sean TH ® ;
SMe oS! Hae
ls | arGteo # AB TINE oA
ee} ee aia 5 » os ae US POR RR gah aaa
GiteiOy ehte +e Bhat hw UC Takt panos
(PECL Boddeqd DeLikymoigiads 66 (tbr wey
ade We mohekac ete Hever hiet MOREE ROLR a ee ms
ehitre Fes of wet Peete Cente Bee etme |
oe ‘soidee oad Alguosd soogat nat Puretaty = Pe oo
i OF Romtato ‘sonsiad ® xeveo ss es ystems -— rere
Be uniteinnos ronal ad ent “sfame000 aeee 1 as a wt “i
whey ATR Oe pltng ous sasvarmd te agodt nietuse
ome te Sausov0a ade tantage qe beweatda ned ‘bad po
ed? .eeomatad owb—eave. m6 thitaiate ede da be ane
ah etnadacrod edt han stot wit ai bermel Get Vik
| hid RaoRted etal Aerstne emt gothaioatee a 10900:
ben * * * geegerze gai¢agitio he eeeqieq edt TO" gaa keneg
wdtset oct rok ban Naenods Leoqed to gabiet oat btows or
seibnabion sbba glk dade aptentoeiee'eld ak berate 2a s08Ret
Yersrertace ost gadt foette elk oF y he ni oxo Bag |
~aototon Yo ofne of Ye tlusor s a0 avates bed nods mooted
netontged holteq & ae¥0 adaohasteh oft of Yibalase ode ee esi
odt af ,oo0s redotod oP yalhaotxe bas @sRL gxeduotqee at
edd howe wtuabcotoh ot dadd Dettinbe sew ¢L molte |
ptuqath mt soasiad « gntvsot 86,9488 to ave oft Yusaate
Stow mum tetdol ecty at how feval, fS.£088 ov parenenne
=>
wie
certain diacounte and oredite ciaimed by the defendante, which
the plaintiff *for the purpose of expediting the edjustment
of this case,* conceded, leaving the amount in dieapute between
the parties at the sum of $499,135, It was further stipulated
that in October 1934, the defendants employed an accountant
to audit their booke to ascertain the exact amount due to the
plaintiff, and 17 possible reconcile the defendonta’ account
with the detailed atatement which the plaintiff? hed subuitted;
that the auditor so employed accounted fer the difference
existing between the parties by indicating = disallowance ef
eertsin discounts and credits by the plaintiff (here conceded
by him) and by the interest charges whieh the plaintiff had
made on past due balances, (here aved for by the plaintiff),
These interest charges, a9 nbove stated, amounted to $499.16,
The stipulation entered into by the parties concluded as
follows: “The only controversy between the parties hereby
submitted to the court for determinstion are: (1) *hether
the plaintiff is entitled to charge the defendant interest on
the sume past due, and (2) if interest is chargeable, at what
rate ?*
The depositions submitted in behalf of the plaintif?s
included a long line of correspondence, beginning as early
as October, 1920, and continuing throughout the period of the
dealings between the parties, contsining appeals directed
to the defendante by the plaintiff, some of them to Snitzrer
individually snd some to Snitser, Ine., urging some wubstan-
tial remittance to apply to the account which it would seem
from this correspondence was always sub stantially in arrears,
ed
de tae eat andre tod ‘ode w bemtato we thete baa stmovetn Laexee
teembentha ade yate Koes te —— one gor ‘Mlvetale ade
ROOTES atuanth ak tewomes Idi gakvoat ‘ghaheo men *,oane aide te
bot suqate codes new a : BT 8088 to mse one te a0 ting edt
: tanbe0 0008 as heyolqne atnobested od MOL tedote0 wh tailt
ote of wid Fnvows tomnm oy aiatreous of wpand: eke de: eitemue
| tmsoos a tad sche heb aule oitonco se eibanog tt bak. aYhlantiogg
ghatd busters het Ytita teste adh tek da smaszate bellatat odt dtiw
vomexettih oct ret boraveooe boyeters om cetthws oft vadd
_ Yo eamerol tenth a gattmibat yd eelereq heed ue a gadtaixe
bedes.avo wsod) Pits miele eet ye ue thewe ban atnsooakh alarseo
bad Weatase ec? doltw eeprede tworegat adt ys has “(uta ia we
pase on? ‘ye MOT Paar: ‘erad) enemies hat: ont tas ae a
eBORE OF Potaiww boteow erode dn ‘ghee mista taeeadak meee
aa beh fonoe weltreg wf) yd oft Bored an: ons 8 ature tn wine
qeredt welring oft aemtted yormventads Yino matt» > ganwot fot ye
aedgod? (fF) sete welten hw gab wo? Meee ads: od bobemdue
mo #ervredet Poiastel oat syrtedd or Damien af ‘viteataee ode
deste oa "ienanagedar wh taotwrms TE di onary: faaq sare.
fae DR Nan MD Oc BRAS & fag aes tetas
4 ME tie eed ae ye ‘gaeea wei
witeataty « ott to Masted at bets indus “snot tas Me et Nek a
gg RRA 88 setantged seonsbaoqeerx08 te enae aris eas 4
ade te beste nett Puotyuor ts gatuntenos |
pscgecenet) a vig
© be patmon moawe
_botewrsh aeoyt ae hp 16 mines bag Br Suceeae
® at tind to tne t wh. oe yd eted ext nr q /
; xageteg, g i 10) ee fi Ne fie et ee nahh: By 7 |
ot eer mae iid < seetie mee bs gv fed RGR ae : |
wee bfuew #2 Koide Aafia ls br goastt tuet, tt
LO eee ee CMe Oe pie Ri EN pee oy panies? Hei!
-5=
Im one such letter frow the olaintiff to Sitter, in Hey,
1921, the olaintiff stated among other things that #70. 44
of the amount due at that tice, wae fer interest, *the curchases
having averaged due net Aug. 4th, 1980 end payment Feb.10,
1921, or 120 days after the seccount was due net." frie letter
Slee enclosed a ststenent of a leter secount whick the plain=
tiff wrete “was due net feb. let, 1921, and has been running on
interest since that date.* It is neither shown nor “Laised
that at any tine throughout this period, any protest was
made to the plaintiff in the setter ef these interest charges.
- Gm the contrary, there were some payments ance on thie acesunt,
from tine to time, end sesurances on the sort of Sniteer, inc.,
by Snitser personally, that they would de their *very utzoet
te get thie seeount cleaned up in @ wery short tine,*
In putting in his ease the plaintiff called
Snitecer as a fitness under Seation $5 of the Menicipal
Geurt Aet, and efter « fer prelisinary cuections, Snitzer
Admitted that «11 the bills of his concern, with the pkain-
tiff, *accerding to the reoords,* sere paid after they beoame
due, He wes then asked whether it was not a fact that some
ef these bille were pil as such as a year and « half or
two years after they beoane due, An obj ction was interposed,
on the ground that this eas net proper erose—-exasination under
section 25, the purpese of that section being to prooure
Such evidence or testimony as the party calling the vitness
was not able te produce by hic orn eltnesses, The court
Sustained the objection. Te know of no such Limitation
Upen the provicions of that section, In cur opinion, the
Objection interposed ens untenable end it should have been
| overruled,
. sine ; id
ter al , text Lad oF Whitaielg odd went seffei tage eno at
Be ore stadt agaist roiite gnome betota Ttalaly ‘od i beer
‘weaken ade” seeorodal x0? sen .tntt sae a ou dauons a
_ s@E 60% taanyee bas set ah we tec en gerovs gaive:
sotto! etc? * 200 sunk ane aveoos ode wets owah Pars ther |
~aialy sa da tote tmrooes cotal s ‘te tnemesare a besos ovis
eo. af Peet aN
se gaiaast mood and ae tsar aet si tes oub gow? efors
bemisi: tea svoda xeditea or just ckuok deceehl
aw fangerq ya he frsq aide sodguorae att we ta saat
ssegtads dueretat eeoilt 2 stim ons a YWitaiely ed? of oben
sfmnene £ ebdte x6 oe Bd mawyon sue ores cal Seabed tt .
ont test ia te tesg eds ae ietimens tak sc . ngs pee ba i tee
pated ranthoe Ys
tuonty yesv® xisds ab bisow ode tea Ulameted © :
ei
* emit funda Yor # at qo Saasele “pescoes wité $e9 62
RR Lee Hehe’: aay
Befley Titwisle sd? auaa eh ee ee jen
| Eegistow! edt te SF sosteee cakes eaentin-e a6 senttas
-RONF eR jenelteees Yuectelien: wal 2 tote hes sted deed
( agiade 9d? Whe garsoncr sid Yo cifld ed Lia sede deddiabe
Secotd ysl teeté diag orew *yehaocet edt of gatieeneat ER |
sens Foss Fost a fox ase ¢L redgede betas mode aoe oH: -s0ub 3 |
ge ther 4 ae eee.» 60 dene os Rhay erme: SALA UNE Te
Seeertetas aoe ete te 2a 220 wns ed yee sung ent
e Bee Fase
xebaws a 9eetserenesore seqorq fon aw ‘sit? gant baverg
sys ie «tees
| oupeTE of gated mottooe tadt bdr: vega a ibe
scent iv 91% gatifon witeq edt es ag Fr Ph aieas
guwve edt vetevent ie avo ald qo :
mongad mis tow’ on hed vont ‘oF
| eed ovad piniode #f bad bidiiodi
ot=
At the ciose of the cleaintiff's case, the trial
oourt, heering the case without s jury, found the issues
for the defencent. In this we think the court alee erred.
ligt only does the record show pest due itews ef substantie]
amount, Trumning for pericde averaging over a yesr in extent,
the plaintifY fron time to tise threatening te take some
action end the defendents warding it off as frequently, by
sesurances of ¢arly payment of substantial ascunts, which,
in our opinion, wovld elone justify the allowance of interest,
Sonieis ¥. Geborn, 75 iil. 615; Borgen & Selleck Go, v.
Eraser and Chslmers, 116 111. App. 605, but it appears
from the reeord that these interest charges vere shorn
on the statements sent to the defendants from tine to tise,
ena &t leset on several cccasicns, these interest itens
were particularly ezlled te the attention ef the defende
ants in letters from the plaintiff, all rithout any dispute
of crotest, Such being the record, we are of the orinion
the pleintiff made out a good ease, und the defendant,
@nitzer, Inc., (the plaintiff having abandoned any clain
ageinet Snitser individuslly) shosid have been reculred
to proceed vith ite proof, if it hed any.
Yor the renaons given, the judgnent of the
Municipal Goert is reversed and the eause is remanded to
that court fer further proseedings not inconsistent with
this opinion,
SUOGHENT REVERGED AWD GAUGE REMANDED.
TAYLOR, P.J. AND O'GOKNOR, J. GONGUR,
ining 2d? ,8e89 at Tiitaial; ed? 20. ages. add #4 ode peer
_ eseeed odt bavel .ytel « tuedtis asso. sd gataes }
.barze coin f2g00 $52 dalg ov shit at . Ph eet b. ast, 30%
_saitastedue ta eeetl auch, Paeq soda, sane oat: seen wen te
fasize ai tay # Tevo galgateya ebolseg to? galeaus
__ omes sash of gaiaotentds omit of emi? sock hie sale:
. ctigaeupex? sa 730, 98 5 Ste stastacteb agg sno, nottes
eo hte gPFerers iatiastadse. to tasstsg yfres te geome
atanrsted te spsaneifa edt ytitast | eens ‘btowe. onlaies. 00,4 a
seh seaes Asai (210 9108 a. seeded Tad
_semece of ted aoe 0h itl Sit ,esep ted. &
— anode azo" weg rade tomnees Gunde ga st tnoe
eaeth demnmpad eantt ymsiemoe sae aie tod ts bas
“abated edt 86 aeiteshts edt of not ind YMtatveltre: exew
“gBttehnsteb oF fee eae Beoy @ 996 obde Thtts
wisio yet hemhenis gatvad Yiidalaly edt) ..0a ond
“Betivnse onsd eved binede (qllavhivibal etabine Fenthis
“tae bed #2 oR Sheday waist q
ee 3 ade edt ek ne |
‘ast te taaegnat, oa aol enone t adh tot ek 4
| ot Sanaemer ad sure eas on et os @ te
she taesningooat ton @ came aatieat
ite 2 3
Appel lant,
148 - 31278 We
BENJAMIN LEVY,
Appellee, ,
* 5 APPEAL FROM
Ve SUPERIOR COURT,
: ) OOK OOUNTY,
JOHN LUSSEM, }
)
Opinion filed April $, 1937.
MR, JUSTICE THOMSON delivered the opinion of
the court.
By this appeal the defendant secke to reverse
® judgeent for $1275.00, recovered agninet hie in the
Superior Gourt of Cook County by the plaintiff,
The originel declaratian filed by the claintiff
alleged that the defendant ras the owner of and had contml
over a certuia three story brick building, at a wiven ad-
dress, whereby it beotme and was hie duty to exerciee dua
eare in its operation ond san2pement, #0 as to prevent
injury to those entering the premises on lawful business;
yet the defendant disregarded such duty and while the slain=-
tiff was lawfully upon the premises, the defendant so caree
lessly, wiskillfully ond negligently maneged and operated
the building thet by reeson thereof the plaintiff, whe
was in the exeroise of due core and caution, was injured,
A demurrer. interposed to that declaration by the defendant
was sustained, and the plaintiff thereupon filed an amended
Geclaration, setting up the seme cause of sotion recited
in his originel declaration, but with greater particularity,
aves - Bat
t H Pen ery aS ah % he
; ci
By Av ‘ei Wis ae ‘ah a
| ate
4 initial ‘eect pe ie Rig: Mallat
i at Gate. aes sil
aye Tee wy ‘aoe betit maint ee Eh
: ney eas da i ae aS ; mh ¥
yhantine to setatcs ‘eae Sazovtteb |
BORE dARAS A
annie: sola
eTTNING HOOD
ra ea
bewerad of akon dmabwekar exe Lssepaue yiinaec lade
edt ot mad somtage teoreweosy ete iar
Wa late add ye yomueD woooYe ansit. or
ee “ea
tide tale ede w Dost. sottoraloeh 4 foal pines eM
fortoon bast bas ‘te mane ene gw Pusbao te oa “tate, bogota
“ha aovky @ te egal Ld 0 ba yrore gent + shatoee A
au os lerexe oF eeu ek tow baa. suse od +h woradie stem
toeveny ‘OF 86 oe frre nen hes gr mo OFS
jeeomiend futwal so ssedmerg ode satibtue eine a te ae
~giele odf afide daw yeuh dowe bebeijoresd fashastad at Fs 7
“eras Ok Faabaeled edt ,eralmerg ach, mages Eke be ane tur |
hogareqo Ase Hagens Ydwoy hyn bas YAtuti litem eta
ade itaiule act Lowrnds monave ed pede yoikntaud od
Herulal saw yooiduan bee oreo och ; Poses ot mt - "i i
tandmeteh amt yd sokderslo oD ast “bos Da
«feo
4 demurrer which the defendant interposed to the emended
declaration was overruled, wherevpon the defendant pleaded
the general issue and ® special plea of the statute of limita-
tions. The plaintiff filed a replication to the olea of
the general issue and « demurrer to the plea of the Statute
of Limitations, Tre demurrer to the eseciul plea was susteined.
The parties went to trisl on the is#ues joined by the ples
of the general issue and this resulted in a verdict for the
plaintiff, assessing his damages at $1375.00, Judgment being
entered on that verdict, the defendant perfected this appeal,
In support of his sepeal the defendant contends
that the trial ceurt erred in overruling his demurrer to the
amended declaration; first, because it failed to state a
cause of action; and second, because "4t shown on its face
that plaintiff's action wre tarred by the Statute of Limite=
tions." ‘Thies contention is without merit for several reasons.
In the first place, the defeniant did not etand by hie demurrer,
but when it was overruled, he prosesded to plead. That being
the case, he amy not now be heard to urge that the trial court
erred in overruling hie dewurrer. Moreover, we are of the
Opinion thet the smended declaration did set up o good cause
ef action, and it was not open to the other point urged by
the defendant, as an issue of the Statute of Limitations may
not we raisea/oy guaran, wut aust be interposed by a special 7
Plea. in contending the contrary, defendant has called
Our attention to Northern Trust Go., Admr, ¥. Chicano Railways
So., 232 Tl. App, 246; Kirkpatriok v. Monrose. 834 T11. App.
#13; amd Leach v. Ghiengo Gity Noilway go,, 162 Ili, 359,
The first and lnet eases cited sre not in point. In both «)
ve *
hobiena od’ ot hocogretmt tasheote ode doidw corwenh a
babesia tasbastet odd mawetede .belrcrowe wav noktataioeb — |
wt Seek! he wd ad HS & ant Yo son Ley Sebosae « bem wind teoronny oth "
te aeta att of moltectiqes # heltt Tihentale eff scott
acudar? 94% Yo aeke est of tevxeeod o bea owned Aewaag ‘odd
bemisteys eaw nOlg Latooge od¢ of toxtumet emt amodtatints te
anie ole yt hartet, eewsel od? mo feind of taew aoltieg off
edt tot do ftheow dae dp tddoe aide bun oust Lorenay oft to
galed dma dwt 1009 oA EIQ te segansh als gorenenss sthidatate
iseqgs side betee teed taxbasted ant wolbray tasty no ce
abeatace texhmokeb sit Ineqge atd Yo Sage que ak
em et norm aid nd Lorx9 we m2 sooo co) faint»
A ae une
a etate ot betiar ws eaurood ater peda: .
soet eek ae ewede #2% sensoed yhavoos bana ottes Ap neuen.
net innt % etotded att ys sential waw notthe @YMitalelg tele
yenvetet fetever sel phew tacit ie vf noftawtnes eldy! "atone
sorte wid qo Snete Yon hab teeheiy toh ode yooalg Pees t ane Ee
gated tad? vbasig of Debswooty ad ,bofuenevo wow dE itede ted
fiom fated edt todd egev oF Wines oa en Fd “do
edt “Ye ete ow (revere tm gat. :
heoy # yw ee bib wolseteateah pebeides one via pues
“ome stent ‘ante lial i adieal ee
PT eek fe ve Bi
“ Kakosqe & w Reenmeatat ed shall sue tn woh
omg rit bea” suns r teied aekeey
eat “in Ker, 06 veeltad ei0 at
te! TOE: Pa as ey
if ved at” “ymteq at ton ap
ote
‘of them the Statute of Limitations was apecially pleaded.
The Kirkpetrick case is in point but, in our opimion, it is
contrary to the established lew in thia state, Gunton v.
Hughes, 18) 111, 182; ml) v. .
7 Til. G6; Langen Vv. Brainege District, #39 111. 436,
The defendant contends that the trial court erred
in eustaining the dewurrer of the pieintif’ to the vlea of
the Statute of Limitations, I, our opinion, this contention
is likewise untenable. It may not reasonably be said thet
the original declaration failed to state any cxuse of action.
It may have been subject te dewurrer on the ground that ites
Sliegations were too genersi and that i% failed te wet ferth
the fact5with a proper degree of particulerity. fhe amended
declaration did not cuplain‘of any negligence other than such
as the plaintiff hod referred to in his original declaration,
The amended declaration in no sense set up ® new or different
cnuse of action. 1,0, Bolt. Goo v- Souders, 176 Iil, 585; The
General Railroad Go. v. Carroll, 189 11. 273; 6, @ Bed. Be Be
Go. v. Kellace, 202 111, 129; Hagen v. gohleuter, 236 111.467.
The court, therefore, properly sustained the plaintiff's de«
murrer to the special piesa of the Ttatute of Limitations,
The defendant further contends that the plaintiff
should not be allowed te recover, inmaguuch as he is shorn to
have been guilty of contributory negligence, From the argument
advanced, it would scem that the position of the defendant is
that this is so clearly shown by the evidence that 1t should be
held that all reasonable minds would say that the pleintiff
was guilty of contributory negligence. In other vords, that
it should be held that he was guilty of such negligence as «
olan
bodies le Ellalsoce sev gaottetints to etater’ ost mode to
af 2 \Hotaiqe the Me ,eed Pabog HE ef sean HoberaqtT eat
: wate sot ate whee mt welt hetind Coares edt vi bere i
davxt o tment po si om
1 iN “pits # Pin
texae PELs ot intee one rede abaegace tasmaye, ‘ont, Alpe il
to. sety off of Ttetely edt te tortapen, aft potion Z “ ; .
apitenteqo e£0h. golesnre Hh ph gassed inad Te, ‘ptutnge, naa
. Sett Dhes 26 yidappenss, tem yan 7%, elianetay ealwodts ek
enghtos te ouvse yas etnta of AmIzat aottaxeioed Jantatze ode
e¢ add bawety oft ae tertreah of tostdwe asod wiad qen ot.
Hexe® Jo oF bottet we tht ben fewoawy voF oveW eaokengelia
dohatus Sek .yeatetim sing tO woxyeh keqotd «| ahtvoneby wie
ove woth tedte gumey tigen ya Yelatetgns dor bkh ables
woltexeiond Ieutgieo aid at of peteston bad Veneta se’ a
fifesetthh vo wom a que tou enmin Ont Ht aottonatteh bei ua
at bol et OTt exbbiiet Ok inate Yo Meal .
Ou Pe ao pees ree ad teenie bower tt Latha
daveheen} eS .yedwetdng se_guy ay GORE’ corr BOR |e straw oe oe
i wT Eteninty one han Lot owe YRteqory Yoxbterade hives wir
ssn bt ach to j ieee ol Ye aa tatoede ee ey
ied Ne ee wits doe q
‘ahteniase wor en yet onan taspen2e, OE ok baw ” q
of mena 24 of am dowanant xeTnoer of hewa (to iit Aixede
et taanbsen ted, tt Ye, meteieeg ode net ween bfyom po patil
od Divo ot tadt epagbive ode yg my do xite9 to om a ah ee hee
“WMteni ata et tadt we bee ms
add, gnbror x90 ak me | : se : :
8 On woamiigen dove te vim ean ‘on a bind os veda 92
:
“matter of law, ith this contention we are unable to agree,
“The evidence shows that the plaintiff was a postman and that
:
visited the premises in question daily in the performance
hie duties, and had done so for some years; that he was
ia eguired to go up a flicht of steps to » porch or platform,
4 re the mail boxes of the tenants rere located, to leave
mail; that these steps ahd the porch had been in bad
: dition for some time; and that the nlaintiff had observed
ite condition and on one occasion, some weeks before the
ident, he called the defendant's attention to the matter and
Ba: @ he thought it ought to be fixed up or someone would get
mrt. The evidence is thet some of the boards in the floor of
porch were*rotten." In our opinion, the evidence faile to
that the condition of the floor could be seen to be so
langerous, that plaintiff's continued use of it should be held
® be such negligence on his part as would defeat hie action
@ matter of law, The plaintiff was or the defendant's premises
y hie invitation or authority, Sutton v. penn, 238 Ili, App.
Even though the plaintiff knew of the condition of the stens
perch, the evidence on this question being as sbeve stated,
| use of them could not be said to be negligence on his
aS a matter of law, City of Mattoon v. Faller, 217 I1l,
4t most, the question of contributory negligence was
‘ for the jury to pass upon.
For the reasone stated, the judgment of the Superior
is affirmed,
JUDGUENT AFF INMED,
RB, P. Jo AND O'CONHOR, J. CONCUR,
Mewnswter! Oct mee ae
ssoxse oF sidan ars ew moktaoetace ehdd Mahe. iui to, rot ten
tet? Bae xamteoq 8 ean Vihdatalg ed? ¢odd.ewods eonebive oa
pomeatotisg edt af yileb aolesomp wk ageleetq ed? bettety 01
aav ed Sofd jataey eos: zot o@ sob. bad bag gegldub mia %
srottale t dot0q a ot sqets te sagt? 5 qu og et bent ,
eveel of pesonet exe" simaret edt to aexed Eten edt oxed
_ bad mt need bod dotog od? Bite eqere ‘ood? todd {Kieu thes
hovrsade bail tte tabale ed? fous Baa ieutt ence tot noltinae
: edt wtoted axeew omon etolessoe ono so bus softtbnod st
; ‘bas rot tom edt ot not fast? 2" tmabao ten ode betleo ed atneb >
; 3 8g piven PHOBMOE TO amet bextt od ot tdguo tt tagur0t y b :
“Yo roel? ent ad adtsed ad? to once tedt of sonet ive “eat om
ot afte consbive ont wohatqo wo ar ‘a0et otterae 98 ns
8 o€ ot 1998 od bivoe soolt ode 20 okt ibmeo edt “tedd
bled od bineds ¢ te ou bouttt tn00 artiteat sla ‘fade ae 10%:
; : nottos etd taeob bivow ae ‘tse abd 0 conesiige oon te of
meinem at taeda tob alt 16 aaw “Witarste ‘eat er to ‘saddam 4 & 2 |
i" 6th, tt sts sO v asus <wehxodtun ‘to nottatival etd x |
‘geste ‘edt Yo nots tbieo edt To won “Wittntele edt dgwode ‘deve , 88
besarte oveds ae pated nolteeup ‘aldé do oomebive ‘odd core
sid no eeasstigen od o¢ “bise oa Sea blues ‘net %6 ety t
{LE TS qt9dlato¥ Moods sk 20 yt29 . -wal. 2o,nesean a on 2 20]
aaw comonilgas ytegudtisage to mokieaue odd. at BA, v
storms yn 980Gu R0q, OF YTHE oie x9% 6
aotusqen eft te pit oft ,hotats eaagsee odd 79,
ah i049 Meee Eta Bo ii i i ine
%
+ MBRAL TGA ae Ichunongy Pe tame tbe rae!
$k giro notre at ace ARGO yokes + PERO Hh
Gh Snmamt Ly re he Pee. wc at hel
ith Dal ae binge Uy a
ee ag
we? 2:
268 = 31341
Jous J. BAZCHLE,
APPESL FROM
Appel 1eé , |
, BUBIOCIPAR GOourT
Vea
Ge QuIiCAGH.
BE. He HAUGH,
Appellent.
Opinion filed April 6, 1937,
® >
Kad re
Wk, JUETICE THOREOR delivered the opinion of
the court,
By this appeal the defendent aeeke to reverse
& judgeent for $600, which wes recovered sgsinet him in
the Municipel court of ¢hietgo by the plaintiff, in a
@ntract action brought by the latter to reeover the
amount be claimed e2e due him as a commission for bringing
about the sais of certain lands the defendant owned. —
The record shows that the plaintiff wae a rr
Clerk in a railroad office in the Gity of Ghimgo., He \)
anevered a newspaper advertisement of the defendant, éheveta
@ertain farm lands in the State of wisconsin were offered
for seule, After soue talk between the parties, the defende
ant made a prepositionts the plaintiff in writing, reading
@s follewa; “We will give you One foliar ($1.96) sn acre
Commission on any parties that you refer to us to whom we :
sucoted in selling land to. ‘Ye rill also allow you a
rebate of #1.60 an sore on anything you buy yourself,*
The only claim the plaintiff made which wae besed on the
‘Last sentence in this offer, head te do with an 80 sere
es : - “ysex 3 tisea belt otaigd
: ‘Oya rk se em oe Se ae ‘N =. Eas
ap ip Go CALE :s iN AN a
Be oe wa By
te scuaige one bonerzdat | waco soxreuy
Bovey Py a Sa gt ets
wile
tract he testified he bought from a third party, she, in
turn, had bought it from the defendent, it would seem to
be clear that the pleintiff had no velid claim against the
Gefendant ac far s@ thet purchase was concerned, and the
trial court tock thet view of it.
As to the plaintiff's claim under the first
sentence in the proposition abeve cuected, if apoears that
the plaintiff interested » number of hia serueintences,
@pparently o11 of then being engaged in the same Line of
work in which he was, and they formed an asesocietion exnlica
the Enrengo Valley Association, and epscinted one Yaleh
to act for them ase trustee, in purthesing some Yisconsin
fara property from the defendant. The cleintiff and some
nineteen of hie friends then entered inte &® sritten agrete
sent with the defendent, - confirming the authority ef their
trustees, “leh, in & written contract, into which he in
turn entered with the sat eideat; ~- for the ourchase of about
#60 acres of lend. The lend was te be paid for in swenthiy
installments. fhis first contract was entered into in October,
1919, In June 1920, wore people had become interested in this
Merengo Valley association, sone through the pleintiff and
Othera having become interested through other parties to
the first sgreesent. fhe parties to the origins] contract
with those whor hed later beoome interested, uade 2 second
agreenent with the defendent, covering the purchase of a
larger screnge, Agsin, in January 1921, a still larger
oo, imeluding the plaintiff and these who had entered
inte the previous contracts with the defendant, and sone
who had become) interested in the project feliowing the
stededeu af efel borotas ase dostsaco gextt akee
ea
=~
gi ,e@r ,yfteq brid? s mort tagued ad bottiseos od + saxt
oF meee bicer #2 .fentavies age aoet of tigued bod ase
edt tatigus wlelo biisy on bad Tesakate end tadt seale od
eA? bas sbomrsoa00 nos sentoane sad¢ a2 tat os taabaeted
v1 39 voy dade Zoot éxuom Lata
cas ms eee
#ezit a <ebaw aisle ernign iat ong ef pg
fade szasqys $2 ,bstour _— aol? ieeqorg wat sk soustane
| yesoaddelaeno’s oft Lo Vedasit SBedacxorat Yiteniatg ade
to olf emae ed¥ xf beyryae gated ot) Ye fa eltaweoegs
bufion weltateseen es baxwet qed? bes ese ont ode ah at a
delee one hetclegqs bua ,eeltetevesA yolis¥ ogc ad a
asoe bee Litalele edt. .tenhaeted ode wowt erragoee met
“serge sed¢iae 2 ota! betotee asdf chasis? aid to ssétenka’
aiois to qeinediss oat gatenttane - .dschaotsh aft dthegaae
_ fi ad delds otal ,tossiaw aedeics & ah tai yeotemst
tveda te seadomrg ade == a@asbastes edt tiv bowctes weet
eiddaon wi not Bieg ed ef sew bast oat hans eee
“uy PS ae SE ef
widt cf pepgexetal sanesd bad ofgosq 308 Jat oa ‘i
we Deak — FS Cs al
feet Pilewinfe ont éu02 ence of akocank. ;
sek BERS rare
of satensg zdv0 iquerde bateotetat omoood
stedte
Site GRE ote OR
so atdnse caer it oe Lerplead rk se ‘tert ot
eed feta
a te esade tug ees ee: een ose dail . om
egret itive s ,s08r visas po i 6 Be dai
betegas bad ee oaedt cae Wilealals oat
ares bés ,teshootsh oat ad ci.
ody a footers 9 ows uo
a a ee ae ee
= 3
rey.
ee eon
SS
woe
execution of these contracts, made another agreement with
the defendsnt, which again ineresged the screnge sontrected
for. Sach of there egreements took the place of the one
previously sade. The last one called for the curechase of
‘2460 acres, Based om that contract, the plaintiff cloiged
he was entitled to a commission of $1480.00, The slain-
tiff'’s position in the trial court was that this commiscsica
Sime to be due hia upon the execution of the contract by
the defendant with the prepesed purchasera. fhe evidence
shows that the defendant hed paid the plaintiff the cum
of $400, The issues <ere submitted to the trial court
without a jury, resulting in @ finding in the plaintiff's
favor and the entering of the judguent appealed fro,
fmong other things, the defenieant elleged in
hie effidavit of merits that the sgreesent he had wade with
the plaintiff was tothe effect that he would pay the
latter a eoamission of ene dollar en acre for #11 land
sold by the plaintif’ for him, "ssid commission te be
payable when oneefourth of the purchase price of enid lends
had been paid by the purchasere.* The proposition hich
constituted the agreenent between the parties wee in writing
and when it tes introduced in evidence it was shorn to
gontain no such condition ae wee mentioned by the def endent
in his affidavit of merits. The record shors thet counsel
for the defenient bad never seen this written proposal,
Signed by the defendant, wntil it was intreduosd in evidence,
and some remarks passed between the court snd counsel as to
the advisabhlity of amending the pleadings, but no amend-
ment was ever aade,
wis
tia gueasstge tedtens Sban ,efesttace eco? Yo sotduséze —
Referttass eeseten oat heeseréat atess fgite ,tasbasted “de
‘eno ot# 26 eeets eff deo? agasateegs essa ‘te far “sae
te venous 943 tot beltse sau seal eit? vob. qlevoive
pemteio Yitaislg ett .toattacs tae a0 Bete kets” oon
wiialy sat ,00.08M9 20 goleeiawss « of beltitas ase od
sekeeiames cidt fade sa dee feds? 9&2 al agbgieog dial :
ee toexape ov, Ae, Soden Ee a6, 50 abd eum o¢ GP
seschive eat (eT sRAto ING bonoqoty nt S328. é ,
halos ms + tama, oat 0 , satxorae. oat bas 2
af AES
‘diiw obae tad ad fagasome 34? ¢ad¢ e¢iton te pone *ta
“and Gar Bhiow ed 228} go0TIs exited ome reisatate oie
bast ifs tet exee mi HEifab sao to m law tne F
“e¢ of otestaace biea* mid zet trtsaisry eat « tee
" gbwal blae te éeite seats tg st Atrsctoons made 0 leayag
| dodae gotfieeceta s€f * eremadoty: ‘oe ‘@ hisg medd bs
martine ‘ai see estetss 943 soewrsd tawaoetae oat Bede
hdaprententiimener decile" gs
of 8s iseaves $28 tums 96h e e8teset seod hes
ohittas on dud santos ob gata v0 jedan tens
ode
We are umable te tell from the evidence in the
record just hor much wae paid by these purchasers, One
Wood testified that there was not te exesed $3,500, 00.
The third and last agreement entered inte between the
defendant and ‘slsh, as trustee for the curchasers, recited
that the istter agreed to pay $37,000 for the property which
was then being contracted for, of which #15,849.75 wae te be
peid *at the ensesling and delivery ‘hereof, receipt of hich
is hereby ecknowledged,* the taiance in monthly inctallasnte,
Om the theory advanced by the defencant in his affidavit of
merite it vould seem that the plaintiff would be entitled
to the commission agreed upon, if the fuets, releting
to payment, were wa indiested by the reecitels in the last
agreement which the defendant execeuted with the purchasers,
On the other hand, the question of whether the plaintiff now
hae eny claim ageinet the defendant fer a balance in the ay
of someission, the contract between the parties being such
&s is evidenced ty the writing which the defendant signed,
might desend very much on just what took place, *hen the
purchase of the property wee sbandoned,cnd the plaintiff
and bis associates, se the purchasers, and the defendant
as the seller; made some new arrangement whereby the defend-
ant, from the evidence in this record, apparently waived any
further cleias against the purchasers, and they in turn
ocomveyed the property beck to the defendant by a quiteclaisz
deed, The evidence of what took place at that tise is very
meager.
Gn the record, before us, we are of the opinion
the judguent for the plaintiff shold not be permittedte
wily nf seasbive off moet Tied es eidmum eve #2) >.
— sstescdoreg Seed? yo Bie saw tower wad Seal Stoo
.00.908,8 Geeexe of goa gee otede F888 POLTetest hook
‘edt mwesied cial petotat tatesergs teal baa Hanae eg?
bstiest ,ersssdowso aig vot sstese? ca ,d62e% bas Paebme ted
doide YZregere sat vot 400, TES ysq oF Searge. wedsal ede gaat
ad ef 229 S&F @59,22% cotde Ye ret Hstesisade gated mot Ger
doise te so Meek Sobreek yrbvE inten gai issese eat s0% Btee
seeneaticdeat qidiase al eenaicd sd? Fenn stealapip tiie
te sivapitts etd wt @avigetes «2 yd BassevSe*¢te04 ie
@eltigns ef bivow *Yisalete ef Feay wase Bises of nee
gaitalet yecoet Sa 2s ogy baaTge so2éetemeo ‘eat oF
geef add ef afediost o% ys Detesthal ax erow ysnemyag oF
seteetde tg el gia botusaxe tnabao'teh ont ty bits tnomexga
wea %titmiale eds sadtede te aoiteoup ade sband tadto wad 24
is 2 reas a
We" dt al sousind # vO guapasiab edt ten mialo yes and
: pees TEES ee we eke
Aes gated eoitaag one amends feartscc oat Retwrer) to
(ae :: rea
Oc faebatab oie ood gaieive alt J bes
_ ee a8iw stone ‘dood tad fam, ao sous Fer be meta
Yisatals aut bac deacbusde ann Wregery dt to ¢ org
. Pant ag? ee oat bes wosnessiosss, ot ae _yatstpoane abt bas
a tesaugantie wor once eam ghee wool
ae Bevies Ulturtaqce prone: eddy a rd cert sad
rege a does ee sues . eibanee FF 4
“potaied edt to eth ew yar sxotedgetset ‘SHR gee ‘.
etbertiawed ad tea biveda Wriseialg i
i a er
=
etand, mut that the case should go back te the trial court
for a new triel, where the pleadings may be properly asended
and testimony 2<¢ to 211 the facts submitted,
The pinintiff was clearly not a broker and si though
three contracts were inrolwed, the vhcle transae¢tion vas a
Single deal, and the fact that he did not have a broker's
lieense ia quite immaterial. We think we ought to say
further, that from the evidence in this record it is net
certain ehat persons involved in the last contract as
purchasers, had been brought inte the deal or introduced
by the plaintiff, Apparently net all of then had been,
On the basia of the written prevesition, whic:
apparently was the real eontract between the sleintiff end
the defendant, coneuganted when the plaintiff acted under
it, the Guestion, shether he beonme entitled te hie commission
whea the contract of purchase end sale wae exeouted, ag his
counsel emmtended in the trial court, might depend on just
what took place when the parties later made some new arrencge-
ment,whereby the purchasers quit-elsimed the property beer
to the defenunt,
for the foregoing reasons the judgnent of the
Munioipsal Gourt is reversed and the cnuse is remanded
to that court for a new trial.
JUNGHENT HEVERESED ABD CAUSE REMANDED.
TAYLOR, FJ, AUD OT CORHOR, J. CONGR.
a.
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babaons yEtogez od yam egnibes fy odd orate: feist wen 2 tot
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(© aoe moigecseet? eicie si bev ivval etsy seoettaa ieiiale
| etradend 8 eved Sou $95 of cate test ode bas ined eigate
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( $8e GL Ff Sreser edt wt euasheve eA aoeDvady pedteeet
. @Ssegkertat «a feed edd odes Ped asad bed jersecdteuy
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cee ee peas a:
tas Wisstere ede nsseted foxsace fer eae ase
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metoskence | aad ud Belt itee eosoed od “adios “sottenp 963 2 f2
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evi se Tasqss tytn .t2w0e Isizt ods ut Bebmos:
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231 - 31363
EOWIN ANDERSON,
Appellee,
APPEAL FROM
Ve SUPERION OOURT,
3 Qk COUNTY
We We KIMBALL OO, (a eorp,) ‘
ET AL, OW APPRAL OF
LUKE YORE TRANSFER COMPANY,
% COMPe,s ps)
Appellant, Kap *
Opinion filed April 6, 1927,
MR, JUSTICE THOMGON delivered the opinion of
the eou rt.
By this eppeal the defendant seeks to reverse
(& judgment for 2200 recovered agninst it im the Superior
Court of Cook County by the plaintiff, who brought this
- aotion to reoover damages rewulting from @ collision be=-
tween hie Ford bex-rondster, ani a lerge piano moving
truck belonging to the defendant,
The only evidence in the record in that of the |
plaintiff and one corroborating witness,
took place st the intersection of 59th etreet and Robey
street in the City of Chi Ge 90» about @ o'’olock in the
The gollision
ee a
evening on April 25, 1925, There are double street reile
way tracks in both 59th street and Nebey street. The plain-
tiff was driving his roadster west in 59th street, straddling
the left hend rail of the west bound track, The defendant's
truck was being driven north in Robey street in the north
bound track, The front of thepplaintiff£'s roadster
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up eR sealeotis when oe
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collided with the side of the pinno truck at about the
middle of the truck, s¢ the plaintiff put it, or about
the rear wheel of the truck, as his corroborating witness
put it. The defendint submitted no testimony. The jury
found the issues for the plaintiff and assessed his damages
at the amount of the judgnent sppealed from.
The plaintiff's corroborating witness was
the notormen of 2 southbound street car on the Robey
street line, which was standing facing eouth on the north
side of Robey street, at the tine of this collision. This
witneas geid thet the defendant's truck was proceeding
north st @ speed of about 10 miles an hour, snd he gave it
2s his opinion that the plaintiff wae driving at about 30
miles an hour. He déseribed the intersection as being
fairly well lighted. There was one electric are light,
located at the northeast corner of the interseotion,
The plaintiff estimated the epeed of his
Trondster at 15 miles an hour. fie said it was a clear
Right and had not been raining, He further testified
that ae he approached the intersection he slowed down and
looked both wzya, - "mostly to my right® - and that
he saw nothing end proceeded, ond when he reached the
north bound track on Robey otreet he collided with the
. defendant's truck. He said he henrd no warning and that
the lights on the truck were poor, He stated that the
truck went about 10 feet after the collision before
stopping. On cross-exauination he was asked where the ‘truck
was *hen he first saw it, end he answered; “Right in front
of me, - * * * half a foot, - * * * just as we hit it,”
em? goods ta sowed oaake edt te oble oft atte babhttes
geoda ro ,fL tug Tioniatg ode ae Call ad? to oLhbhm
weeudin gatverodertes aid aa ,toutt odd to foody taee ody
yrut oc? .¥Moakive? om bettiandve dashasteh aq? yf Faq
aeyeneh ott Deoawoen baw Yhidadata ett vot auvent emt howe
moet belesqqe tnomgbat, at " Sent ody id
ie a
ane yrs
ane enont ty gatterodernes a ertionilite? ia ep
Yoder ait me cao feorte hawodituas 2 3 Sewcet on one
dicen eff ao dtwoa gaioat nathnids aaw Sotde ,anll tearte
eid? wolaktton ohay Yo ont¥ Odd va ytoorte odo To atte
gaibseooty sew sowed attaabaeteb odt tats bles avontiw
$2 vey of bas .twod na aglim Of tuods to beage ata demeg
O8 tuoda da gaivigh eew Wiitaiely edt tad? actmiqo aid as
‘yaled ea BOlfesersial oct hovtwsakh ok .xhod ae okie
“till oxe obvtobte amo eae exadt boty Lt ftow yertat
aontosuredn! mt al saneo ‘shanti oe ts dormer
Sa! a si Ow
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raelo % eow ¢4 has OH, Hed ae wothm ar te xeeabaes
hes titned viens eH Mota und tox ane fatten —
“dgadd bme ~ “eiigte ya oF etnua? - wee ed stat
edd bedoset of verte haw ydebosoone bas gat fou’
ot? ddiw bubsLToe of doors Yoder no: suit obie e
test bite catenee on Binet 94 bikes ex south ahenchmoted
ot tanh bovete ok sto0q Stow Morte ond no Reig tt “?
oretad noted! foo onlt ‘eorts oe ‘os lyr anil ‘Sout
dort? dd exede beden baw'OH mottAnimaxesonnte WO “agit
duort a2 diyta” pbeteweme ed paw open gente ial ‘ae
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Counsel for the defendant announced at the close
of the foregoing testimony submitted by the plaintiff, thet
in view of the plaintiff's evidence he had nothing to offer,
The court then instructed the jury to the effect thet there
wae in full foroe and effect a atatute of this state, proe
viding in part, thet "when treveling woen any public highway
in thie State, all vehicles shall grant the right of way to
all vehicles approaching interseoting highways from the right
and shall have the right of way over those approaching from
the left.*
fhe court then instructed the jury that "when
® motor vehicle is savpresching on intersection from the
right, within the meaning of the statute and is entitled te
the right of way, ite driver had the right to act upon
the assuaption thet a1] motor vehioles s»proaching slong
intersecting highesys from the left, willmobey the law ond
grant the right of way."
fhe plaintiff's declaration consisted of 7 counts;
the first charging general negligence; the second charging
wilful and renton conduct in the management of the truck; the
third, excessive speed; the fourth, wilful ond wanton conduct
&s to specd; the fifth, negligence in fsiling to yield the
Fight of ewy; the sixth, wilful and wanton negligence in
failing to yield the right of way; and seventh, negligence
in failing to provide the truck with proper brakes or a
proper signal device, The plaintiff subuitted no evidence
whatever tending te support any of the counts exeept the
firet and the fifths
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By the court's instructions, the jury were told, in
effeot, that under the provisions of the statutes of this
state, (Gahill's I1lincis Statutes, chapter 95a, par. 34)
all vehicles approaching interseoting highways from the
right are entitled to the right of sey over those approach-
ing from the left; and that sehen such a vehiele is anprosch-
img an interecotion from the right, “within the meaning
of the statute," its driver *had* the right ageune that
vehicles appronching from the left would obey the iow ahd
grant the right of wy. These instructions avowted in
substance to a perenptory instruction to find the isenes
for the plaintiff. ‘ounsel for the plaintiff, in suppert
of these instructions, relied upomPartridge v. Erbstein,
325 111. App, 209 and HoGarthy ¥. Fagen, 226 111, App. 300.
Counsel for the defeniont aleo cites the Partridge case,
We heve recently had ecoasion te consider this question
of the law of the road, as applied to vehieles at interaeee
tions under the provisions of the statute, and have stated that
we are wnable ¢o agree with those onses, Heidle r
lumber Go. v. 243 111, App. 89.
We there said that the statute in question *does not mean
thet the driver of a vehicle approwching an intersection,
must yleld the right of say to one approaching the same
intersection on his right, without reger’ to the distance
that vehicle may be from the intersection when he reaches
it or to the ratesof speed at which the tro vehicles are
traveling, When the driver of a vehlole approaches an
intersection end he sees another vehicle approsehing from the
Tight, at a greater distance from the intersection and at a
rate of speed suchthat, in the exercise of due care, he believes
a go
ni ybtoe See Yuut wi jenotpouxtea! alemvas ody «
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‘gad tert ayowdgte gatbobeeadn? guldonorqqe eekoidev the
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pete wat add yedo b fuer ¢tel ons mort qaldosotgge ‘es oidev
ai betavors saokseuxtag! goad? Yow to tight ‘ame teers
aaunel add Sekt of wohtoutdeas YRotqmenag 2.0f senatedee
PvoayNR HL athttaials, ae tot Lend «ktatasesg oe wok
008 ge, ith. BSS . aR Ss ov xstaanen ne gee, aA hen a8
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Soldseup etdt reblesce ot aoleaooe dad Wisawees awed Ow
sini te aofeiiav of hekicgs a6 yhnot att te val edt to
todd hetata hosing ham TT. ang te snotsivorg ode, oben oma
be al xe bilo? “saa ‘ono th ‘athe some ° Gileas eta ow
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ws ee ey ae 00 ond adtog, |
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Pe MCR a aac ahs YL esi 2
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i “ ae ae akira ale ais
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CaaS Reg L| ARE he pear en wade 4
enangs th ‘ode et ager dvads be feeds aid oy
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oo to zen od fee sottuswrotad ads wort sd yon aio tdow gust
ice aie fale Braranone da Re ile BUG a ek
ote sedohdov ove oat co ithe as hone Yoaed ax od? of to #2
vt: eo ee re rt
“8 ‘aetosoroqa aiehior ‘ w aowied ait woke
ry eGR vg slid hn ae a ve rabid
eds work ‘gatdeserqan ‘ole Ldew sandtons aottosnxotat
“ eis ath ual ‘¢ Be
8 te hae noktvoenstat off port nonet tb * ty O te gthy
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Ba any EE NRE Y
oie
he will be scroce the interesotion before the vehicle
approaching from the right reaches it, then, in our
opinion, the latter oar ig not one ‘approaching from
the right’ within the meaning of the statute, end se
ag to require such driver te stop or yield the richt of
way. Whether,in exercising his judgaent and going
shead, the driver exercised due care, is ordinarily. «
question for the jury to decide." We held thet euch
was the situation in that ease, where the evidence
showed that the collision oesurred when the car appreach-
ing from the left had reached the area beyond the middle
of the intersection, snd the one approaching from the
Tight had not reeched the aiddie of the interseetion;
and where the ear coming in from the left wae struck in
the rear by the front part of the gar coming in from the
Fight.
In the Heidler Lumber Goxpany case we reviewed
All the recent cesew in this State on this eubject, and
& number in other states. The instructiona submitted to
the jury by the trial court in the onse at bar were cone
trary to what we believe the iaw is on thie subject, as we
have stated it in the cace referred to.
In the case at bar, as in the Heidler case,
we believe that it say not be ssid, ae a matter ef law,
that the statute applied and that the driver coming to
the intersection from the left proceoded across at his
peril. We are further of the sethhingftae evkdmee in the
@Caseiat bar subsitted in behalf of the plaintiff, presents
a different situation of fact then the one which was pree
we
Me pyot
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to tage ot bLoty %6. gor ve revteh sore orl
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ae toutes noe ter ade wont at gainoe tao ode oredn hae
re i Ce mS RR: oe ERS OR
ost sont at entice x08 ott Ye ead tages ode Ww teen mr
Hine. we Aha Bis a SRR A: Ea a
ie hate Roa fe Si Nate 4 me Pe sy aS MY : wis RENT aie Ne ie
i bewotvo ow etan ynagact) eds RUBE it mE Hid ooabiy: ae
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ef ete Lede ane btoset ene ed? ‘nonatm salto a codman
nde Area it foam, one wk ow eed lt et
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BRN se
=
sented in the Heidler Lumber case, There we were of the
opinion thet under the evidence submitted, the isaue involved
wea one for the jury to determine; whereas in the cave at
bar we believe the triel court should have treated the quese
Sion/aa Geb a kaa, that ‘eantion was presented to the
eourt when the defendant submitted his motion for a directed
verdict at the close of the plaintiff's ease, and we are of
the opinion that the trial court erred in denying thet
motion, On the pimintiff's own evidence, the reapective
speeds of these Vehicles were such thet in order for them
to collide as they did and at the point in the intersection
where the collision is shown to bave taken place, al though
the collision occurred at night and the defendant's truck
might have been hetter lighted, the evidence shows that
there wos an are light at the near side of the intersection
at the plaintiff's right, and if he bad observed the situse-
tion presented shen he approached this intersection, even in
@ gasual way, he would hove seen the large truck passing over
the intersection in front of him; but he saype himself that he
didn't even see the truck until he wae within six inches of
it. It ia further clear from the plaintiff's evidence that
the defendant must have been well into the intersection bee
fore the pleintiff reavshed it,
The trial court, in our opinion, should have held as
& matter of lew that the statute did not avply to the situation
presented and that the plaintiff was guilty ‘of contributory
negligence.
The judgment of the Supericr Court is, therefore,
reversed with @ finding of fact.
SUNGHENT BEVERSED WITH A FINDING OF FACT,
FINDING OF Fact:
We find as a fact that the plaintiff was guilty
of contributory negligence,
TAYLOR, P.J, AND O'CONNOR, Jy CONCURe
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JAKES J, LOVOHLIN,
Aprellee,
APPEAL FROM SUPERIOR comet
va.
GF COOK COUNTY,
ALBERT L. UVLERY and
ALICE i... MULEEY,
Appellants,
fa. -f i.
e . & FJ “2 NS
BK, PRESIDING JYSTICS MeSURELY
DELIVERS? THER OPINIO# OF THR COURT,
Complainant filed a erediter's bili end wpen hearing
wy the Chancellor head « decree ordering certain shares of etoak
of the Alice Apartment Building Corporation to be sold te satisfy
two Sudgments held by complainant agninot Albert 1 Bulkey, one
for $309.18 and the other for $454 and ceste; sleo finding that
. eertain Judament held by Nulkey as agsigner cenalnet Leughlin
for 9979.3. was null and veld, ‘Defendants appeal, presenting
twenty-one pointe for reversal.
bs It is firat asserted {nat no replications have been
Kia and therefote the anewers of Albert ald Alice Mulkey must
be taken as true. The decrees recites Yoplications, and as we
om before us only a praecipe record we wuat assume the correct-
of the recitals of the deeree in this respect.
; _ , it is anid that the Chancellor atruck out the evi-
‘ en ? stouching the validity of the judoments held by eompleiaant
ee a et Mulkey on the ground that they could not be attacked aol«
teraliy, but ineconsiatently garaltted compiainent to attack the
: a4 aity ef the eounter-Judanent held by Kulkey sa agaignee of the
Bank of Ghicage against ‘ayy unas The reeord empiaina this.
m latnant *e bil] asnerted the two Judgments agkinat Kulkey.
' Tiled an amended answer, / ‘alleging that the netes upon whieh
8 ‘Judements were obtained were ageommodation notes exeauted at
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a ee HR a iq Ph ae
e Hon? it. ha eunirs, Hey te
the request and for the benefit of Loughlin, fer which he, Kulkey,
never received anything of value. Mulkey aleo filed hie erase-bill
fin which he again asserted the invalidity of the netes upon whieb
Loughlin held jJuiguents, and further alleced the rendition ef «
Judement in favor of the Union Bank of Chicago against Loughlin
for $973.31, which had been duly aseigned te him and yupen which
execution had been issued and returned uneatiofied. Complainant
@hewered, denying the allegations of Hulkey's erose-bill. The
Pleadings thus submitted for the consideration of the Chaneeller
the validity ef ali three of the judgments.
Yoon the hearing scommleinant gave teatimony in detail
@oncerning the execution and delivery of the notes by Wulkey, ree
@ulting in the juiguentes unen ehich the oreditore' bili wae predie
@ated. This evidence tended to establish their validity and te
Regative the allegations of the defendants in this respeet. There+
‘upon eounsel for the defendants moved to atrike out #11 of compiain-
ant's testimony except the documentary evidence shewing the two
Judgments, execution aud return, The court indicated that this
Would be done with the widerstanding that if the defendants intro-
duced evidence attacking these Judgments, complainant's testimony
would stand end he would be given an opportunity to reply in re-
butter, Defendants then intreduced only the reeord of the judgment
obtatnes by the Union Bonk against Loughlin and assigned to Mulkey,
an rested, Therewon evidence was introdyoed im behalf of come
Mainact, aS croes-defendant, attacking the validity of Mulkey's
mt; defendant's objection te this wae over-ruled and he then
duced evidence te sustain hte Judumert.
The sesming: inconsisteney in the court's rulings was
ht about by the defendant obtaining an improper ruling en his
tion to exclude all of the evidence of the complainant touching
; ts Judgments. In making this ruling the Ghonoeller indicated he
Woul Permit the defendant to intreduce evidence te meet complainontts
youlwt ,ae dotedw sot al itguod ‘te 22teaed ae vet han deouper
ffid=seose ab beLT om Sie pak Lr -oriav ke pokeirgae ihovienss. |
dohdy cog Gavan ent to qeihitavat alt bottence shana ot ea i
# te aoteitmerx od? fege Lie vesituyt baw seteivniginy biked b tidagyl
abtitguost teakene’ wyeo ke Yo nok anda oA -Goebt at baba
Se te weg bata aid of bemgteac vivh mood hed Me bide (ere .
tonntslqnod boi %ettwnem Sewcvron baw beite? dood had aoltyoem
ot? ,iitdavegns atystivil Yo eae btage tite Cue hlbyned ber wan
xoLingassld we Yo aodtevehtndor ext rot hegeimduw mutt ents
! - economy bart ot ‘te sors? tke 19 bo tet
Liason at enonboned i) dienhe fonon gnitused ont noe Ks
~or est ferlt vd Rotem atte i syrovk fot bas mol suoens oat
-thote cil babs tanot thors ony se Lelw aout ‘tinsaabet eat ie!
eo haw ee ib hey en He kLtat eo ad hebaet wonmt tee ena
arte ey stonqeor | mbte td nonahas ten wien te onodeasetta sie
ats tau betaothnt teyon at : “site t0 baie sontonne 7
enomtsned a’ faniste Lope ,adoengburt oasis 1 pabineten *
=O at leer o Pe ot reidhns ig blll beh od biwow ont had hast
Ket dult od snmmiiien fate! ab hriguedt deatase soot aot y orth ee
«moo ‘Is ‘Vihaded ak beowhortak # Hae sont tee heavens?
we won halk to Uttb tier edt aabiontts {fecha tah ane o9’ hvll
aes od ate bo Lirtwnere Fadl may 0 nolepetde oF taba a
oni, a alatena of ronan tre i
ake no nator noqorant ae aatatatdo
aay aabiiowse taunite Lome aa ‘te sombtve ne cto ny
| ‘ ad (Rois ie Peet
oat potas shud el Loomena oats pepe ‘abet a
“ ghtuanteLqmee Soom of sonehive oombersat of seated “ fico 8 fs
id
testimony, but the defeniant echese to reat on the ruling of the
Court and introduced no evidence questioning the validity of the
Judgments againet him, Al) the Jutemente heving been submitted
te the Chaneellor to make an equitable adjustment thereof, the
fefendants should not have asked the court te exclude the evin
dence offered by complainant touching the same. aving obtained
an erroneous ruling in this reepect, defendants cannet complain
that the court permitted evidence touching the Judgment against
Loughlin assigned to Muley.
Defendants assert that all the evidence attacking the
judgments was in the nature of a collateral atteck and should have
deen disregarded by the court. We have examined the cases cited to
Support thie, but none of thex is spplicable te the instant ef tua
tion. It is the general rule that where a court of equity has
Jurisdiction of the parties end the subjeet matter of the litiga-
tion, it har authority for the purpose of administering equitable
Pelief to adjedticate all the righte of the partles wate: are ine
Yolved in the iftication,
200 Tl. App. 71; Roman v. Sumphreyn, 220 Ill, App. 809, and eases
there cited. It is wei eatablished that a court of equity hee
_— to set aside a judgment at law upon proper showing.
2% sie ki Md Lo Works, 913 211. Avp. 235;
PRN 14. Ill. 672; Friedberg v. DePew, 200 T11. App.
bad Simson v. Simpon, 273 Ill. 90,
‘ there is much argument as to the finding of the court
at the judgment obtained by the Union Bank of Chicazo against
and assigned to Mulkey was void. The tranesctions between
ona Loughlin giving rise te the nete upon whieh the Judgment
aS entered are involved, snd it would serve me purpose to relate
then here. It is sufficient to say that the evidence justified the
ma that Mulkey obtained? said note from Loughlin by fraud and
on ond without any consideration, and therefore the
wat To galion s62 so d99% of sgode tanhas tab oat tod .. ycgmt, °
seit Yu UElhtiew add yatnolinene eonehtre om honuhotiah ham ert
_ Rettiadue anad gatved atosmbat ot (Lh. thd teatens ademaptial
ont adystennytanetan thy aidettene na..oiae..of, meth eeim a y
he Od whe hane.. oh, Seaton oeld, benina | ‘ave Som pivots at
bow iatde gatvad j one nate Battoug? tagnhe fqmoe ve, mer i
ibe tenae.gone adnan am eb sooqaes. otdd at aablet eroanoyse im
nonnane Same wigharl, writ Metopes panebive. Devt kenog, fares eat d
ee Oe me a tee Tee soy appeal, of 2 dibkdiih
cei elaine eoueh ive oute bho tadt Prone, Fina an eed ary tie vw
PVA ives ham Soedin Loxetatser 0 to wanda ould ad naw etaomhi
ot. bathe. Bones ant bemtmnxs ent, OF ROS, 98d yt bobrenerets
ond bs taste nt ant ot oLdwodinus ot ott te anon dee, mht $9 oan
Bak Cokes Te Taree: a anode sons, akan. Lornasy, vate ahat “ e!
a eres oe. he wegtsm tontdue, eat Dane aoldaeg and he matte,
ohdnt hope FuLbUOne dead otha, “0, aRomrnd, aust ‘xo, et ivottua i fd
<td, ote pdr wien wrt Ne, atviate. os, faeal hahee Na 7. 4
tad sttupe. to, ious r sant, d benad ttnsnp Leow ab a atetie 9
canine Teeomm mga Wal de fnoaghut a, sdinn ane ah Wilk Bn
s8Ge, 0 GGA oA LE BLS... va 8 TAA. CP Sth dy
AG ALE OR, Pageant ae, nie ve
00 41h BO moms
¥
as
i
e190 od Lo wakbal’t. ast, ol a4 Aanowy ss, foun od peat. domed
Peakege cyaetdd Ye daa nodad ols Wh henlasdo, de ogg bas “a
Koevted stoliosanent eff blow aaw yore’ of bong tens beim ad
tanugheh wit voksy moms atom odd ot oaks ouke ta bLdgued baw yo
tale at ooneang, wn rR oR bh Seom 8 fame » shavdoval 07a, berwsan 4
add bellitert souehive off todas Nae ad paolo Lite ad oh, ten
how hua ef abitawod mov? ofas dion bentesde, weaker tart, pi teal |
add oretoreds da ,aetdenehsnneo can, deeds de bas :
LA Tee
judgment om the game, assigned te him, wae Gull and void.
Tae decree properly fount that at the tise 6f the eere
vice of summons Albert Eulkey was the ewner ef 248 shurse of stack
ef the Alice Apartcent Building Cercoration an? that after the sere
viee of sworeons he traneferrea eaid shares to Aliee i. Uolkey for
the purpose of hindering and delaying hie crediter, the complainant,
whe Was entitled to have the sane solé te antiefy the said jucenent
with interest and cestes. The filing of the erediters' bill ereated
@ dies on this steck ané the tranufer to Alice Lulkey wan eubjest te
thie lien. Hing v. Goodwin, 130 111. 202.
There was bo abuse of discretion om the part of the
Chancellier im denying Kulkey's metion to csntinue the cause.
it weuld widely extend thie epiaion to atteapt te
Betice adequately aii the pointes made sy the defendants in their
brief. Ye nuve considered then, but ars of the evinion thet the
deere: 4cen substantial Justice between the parties ani that no
Parasount reason fer teversal appears, The deeree wae in sureuance
of the issues sreeented by the pleadings, and it is affirmed,
APFIREED.
Batevett and Jeknaten, J7., conour.
%
a
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TM 'S if & er
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nase oat Yo webs edt te aasie paws eitegere seteeh oss
doote te sotaise aaa we ‘Benes 02% Sew YRciak SredlA suormme teuee
-se8 ‘ests ‘aette Saat baw aot sanonre® “Sathiled taomttegh cy -
tet xetteit wt eontA od ae xasle blew boris tenet? oe, BQ cry
ston ade tones ‘et ‘etet thers ake gakyaied bap patretaid | te oom, 8
gasmabest, 8 tes eg vielvae ot SLor face ons aved et pak Fane ., eae
betaete fit *arottbess wus to gait’ oat _stteoe pane Peat.
ot ey aban new —_—, ne ed woleaets aud bate avete saat ae a
“ROE £41 08s oe a oht os
te ome pj .
od bal fue Radi me getzanalb te osude ox aaw
eS eee
a ——
& wre
“et sqnesis et ‘golaieo abit besrxe iebaw buaow at comes ne
THY GL araabae'ts axe wf sham atatoy ous ile yes ear sia
‘BAP fac) Aolabge oct te ets ‘tad asso ‘besshieaes oved os 2
GR testi bas doltwog adi movies soltent, tattantadue ch
eeaivatie al Sav netsh oA? eresene Lastover tot aonsex fh
peor fits i si be ‘segnaneeta wat Boek basaenerg eevee —
¢
Si ° Pisse eh
Cahill
st a3 beeee
98 yep he
A
?
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spe “eX eee 22 Sse hii Mee
te NS
2 * Ba ae sx ai toad. ie “
ap = aay
' MOA “i $a bee yee deed oh, Sete
fab 4 ; - a
ei , eee ee yb *
anomakvs oct tate mon adgteis Sitges 264
segs 2 jets einen pe eels S.-i gees Re awa 4 | Pe haved # e
at Se eae he. Besieh ‘ Co ae aS SE
: : . oe ee as Sy j ;
4 gi chet igt te 2 tee ea eree a OR eee ee |
a.
Not tro aad per a hee
Sutgnent on the sane, apeioned tc him, was mull and void.
the deeree properiy Tound that at the time of the eer.
vice of summons Albert Mulkey was the owner of 249 shares of steek
of the Alice Apartment Bullding Corperation and that after the sere
vice of suamone he transferred sald shares to Aliee L,. Bulkey for
the purpose of hindering and delaying bie erediter, the complainant,
whe war entitled to have the seme 801d to satiefy the sald Judgment
with interast and costs, \ The filing of the creditors’ bill ereated a
Aden on this steck and the tranefer te Alice Mulkey was subjeet to
this lien, King v. Goodwin, 430 Ti, lee.
, There war ne abyea of 4iseretion om the vart ef the
Chancellor in denying Bulkey'te motion to continue the cauee. The
parties whose teatimeny he wished te take were in Chisage, and 1t
was Mot explained why he di4 not subpoena thes in oreper tine.
) it would unduly extent thie oplaten ta atteapt to
feties adequately 211 the points nacre by the AeYendante in their
drier. We have considered then, but are of the opinien that the
decree éeee substantial justice vetweer the parties an4 thet no
| peranount reason for revareal appears. The decrea wae in pursuance
of the issues presented by the vismtingh and it is affirmed.
: ) AFFLIWED,
nett and Johnsten, TI. GoOnGurY .
eA. Ae" EGE ee Te A
shioy bia Ilgt saw gure od Pappions man wt ao @ x ‘
ston ond Xe ome oft te tad howo't ylteqerg oeaven ne
Seeds to suxede GR ‘te weary exe wow pwd Lull frei enone} ‘e+ "
seas eit x08 te tuile bax noLeweerre9 yaLCive tapadnoge wetinwat '
tet woutell .4 eblLA of oewedte bdos vorurnanet on enone “te 6
,ttmitkaLynde eAs 4 sedibote ot nace fob hits ae obtekst te woven’ +d
tiemghul bine est “'tetooe or bien ‘oame iid ingle pt Bods trie wae 6
# Retaexe (Lid Yates bhevre one Yo genni: oat / “aieeo fina tatters a8
’ gt toot due adw “edie walle of ‘eehintt at four gual aa Hs of
its Yo Fawy wit? to notterba th "to pr “te ‘ie ade |
edt eames sit ire OF Molten beaeus wires NN
(ed tqusdeu dt) seo terge wits hptte ers bfirow qt”
thous ai Picchnhoadensd ote Haylie oboe ais ly odd Lhe YleCinst
ow tacts a ‘eetisay ett unlene oottant, enmmeminiad a
sonevarse ak wew setded gat J et88 998 foarevas 26% Aoeaes tm
ohoaxittea ak #2 bea stontnante 8 ol? bal sh ei enneah :
CSET V4 ie ane isha et Teas bi i
i ee
— * 31469
THR semmry ants RAILROAD COMPARY ,
@ Corporation, i
nee eee ee
Appellant, APPEAL PROM CINCDIT Coun?
¥8. OF COOK COUNTY.
ROBERTS AND SCHAEFER COMPANY,
ration !
& Corpo * Appellee. |
“>, F 7 R o> ‘O.) !
> A 7, / ge ee
BP fA /4 iy a. | & my J
» hain Lo. 4 oY
ie Sel Se gv GD Yr YF SE Xe
WR, PRESIDING JUSTICE MeSURELY
DELIVERED THE OPINION OF THR CouRT,
hi Plaintiff filed ite declaration in tresvass en the
» Slieginy that threugh the negligence of the fefendant it had
damaged in the sum of $35,000, Defendant filed a general de- !
fer, which was sustained by the trial court, and plaintirr electing
Stand by ite declaration, Judgment against at Was entered, from
q nich it appeala,
The deslaration iis ad tiat defendant company was a
ration engaged in the business of structural engineera and
tractors, with offiees at Chigago, ILlineda, and that as such,
for te February 7, 1924, 1t constructed, equipped and completed
a ary sand hopper for the vlaintirf at Conemaugh, Pennsylvania, for.”
u in sanding ite locomotives, and requested the plaintiff te sand
Locomotives with said sending plant before sata construction
‘beer accepted by the Plaintiff; that in sanding locomotives at
e @ plant a spout attachea to the plant is lowered to position ever
tive sand dome ana thereupon a repe ia pulled which opens the
Sand valve gate and ary sand pours inte the sand dome from above
"gravity; that when the engine is sulficiently sanded saia rope is
and a weight designated 8° @ counterweight attached to ao
; eight arm cleses the Valve gate ond shuts ofr the flew of
z te the locomotive dome below; that the counterweight is essen
te ana & heceseary part of the mechanian in discharging
ary
a into io trac domes and in shutting off the flew or sand when
Be cf «Wile ts" AOTELA sad
tate tavoata. wom AMT or ae ih minenne
ORR, Bed Te foe ‘aS aie Sie:
‘ “unions Ie ei
-oottoagh ”
a stud oO do eis sok CNG ES ai K ahs
at
¥ Us Pa ay ¢ CRS NR
hg HOR to soxarsa am
‘@ edd we aadqaoeh at aolverpions aff hese hhh, :
i beat #2 fashion ’teh edt to someyiiged wait Aansonals 9 ey dintae tte. «A
Bic Lets aey si becky dna haw te POE BEF Se, ater ard ak.
; 200 fo ME Bo cobe Le Pepa’ 9 PxiloH feiss cial Labial weet beatagnon ae suse a
rest
‘ (Wa ataseee
s iin en. nebo ab, tase hoye Ln spideretow ont
hae seheninne Lenvdoutite Ye seenlsud ‘ead at begase vo it
re ea, gadd baw satan dest ‘speed ts ase vio aol,
| _ hedatgees hav Aecatups yhetavagense ot Leak 0 eta
et ehaaw fyannet «urea a0 ta vittate te ‘pnd seh ch gion nia
hime of Tikinkale wed hetnhyan Baws nevis omanel atk akan |
peldovedades blew sxoted dsate gakhage bhan stkw nevite
fe aovigomeget yalhnes ai sat yVideatel¢ ons yd hedqnogs | 3
“ove quitiees: ot Betevel al. tas ig’ sel 08. hetiong te teege muta
ai? anoqe dokdy botivg st oqet 2 Koquetedd ban saoh bane avito
erode mort émob base oct otal erwoed Daun, 4th haw adag. evley ea
ak ngox bias dobage yienstalvive a2 enka em) a9 sie be syd renty
® of busootia teyhewzntaves a %8. badacyteon, delghow se} haw | z ®
Ye welt emt Nie etude jam ocag orkey od aneoty.| as, + tg
the dome is filled; that the counterweight is sttached to a counter-
weight arm, weighe 3° pouw:de and te suspended 94 feet above the
ground level; that the counterweight rises ond falle, tilting up
and down with wake counterweight arm when the sanding plant is in
height above the ground is e@ dangerous fixture; that ordinary
eare for the safety of persone vightfWlly on the ground below tharged
the Roberts and Schaefer Compeny with a duty to securely attach
the same to said arm se that when tilted downward the counterweight
would not slip down ond off of the end of ssid arm and fall upon apy
person or persens who might be rightfully passing along underneath;
that said company 4i4 not regard ite duty in that behalf, but se
@Carelessly and negligently and insecurely attached sald counterweight
te said counterweight arm thst said weight slipped down and off of
the en‘ of said arm and struek James Petrarea, who was then end there
a Lowome tive fireman in the employ of pleintiff, while in the exer-
@iee of ordinary eare and caution, and whe waa rightfully pascdnag
‘along underneath said counterweight, on Vebvruary 7, 1924, snd in»
filoted a depressed fracture of his ekwll whieh exterded inte the
Skull vault and covered the frontal area; that the suid Petrarca
Was seriously injured, and has remained incapacitated te the preednt
time; that said Petrarca instituted a suit agsinet fhe Pennsylvania
Railroad Company te recover damages for the injuries so inflicted
“wpon him; that The Pennsylvania Railread Company requested the
Roberte and Schaefer Company to ssvume the defense of said suit but
it refused to de so, whereupon The Pennsylvania Railroad Company
mettied with Petrarca for the damage inflicted upon him and sued
the Roberts and Schaefer Company to recover the damage which it
suffered in the premises.
The declaration contained six counte, setting up the
ing facts in 44fferent forma.
“While it is the universal rule that the pleading of a
iy Y ; Or 4 bah
| metawon » od botootte of toy howretawoo ett sade shotetm ar oaeh
_ ee mane Ceo ultat By toes eaake tify Loweotuuay. eet tadta bes J 7%
f ah ws tants yakbone ot nocty orem tly kowee saree hiew gelw. sve .
a ites tity bow ats te soaann uit Paty lowiedmes mat. tans am .
E | eronthie dass peusde ey ‘eyoregiah woah bowery olf ovede
; Regtads woiad bawet, att og qi Late yh: exonrey te yteten att «er ®
“ donedn ylotsoos of tis 8 na he Xeumaqued te rendoR hen eftedon
tigtewretavos oad btawnvod beeiis se the vast 8 ara bho of anae
Cee Avge tat hem wie bina te bao one ‘te Xto baw awk ase rer of ah |
{Mtasrohas yrote yaheasy Yue teste od galy tor wif Ginodnng 0 «
: on tud tiered sadt ak gia oF bunyes don SEM agen ‘ite
eae bine Borioatia ylstueeaal saw ciapytigin Baw :
| a to ‘The betes sero heggate Jauiow bine pasts oa beget:
a baw meal ae asin sonsoS soot fowrte fan ‘omen | tno
ip 1c pit eat mane ies es ake hate oe aconntined es im
med bra. KOS S xtaarsde® Bo F sasumsonpnes haem pine ‘een aly
inn, pide: ag 1s dstdapdilias heniawes aac bie i
ainayivecoe% off ¢enioge tive a, dodudhtant. aouwster bas bast:
hetetiat on eoiutms ocd rot apgenns wevond'r ob Yaa ,
edt bodeoupen yanquoad dagrtiah a heavy eran owe saa ; :
ted, tie blae ke etwated ade ommeni GF YnmgeDd we TeMitED ban a
Graqued Meet hak «haw rdgean aalt ehiabecsaael ‘jon eb, phases :
| bene bie ata meee hoes total bpeneh ond 1o% aote eeesoe dake
aD ch hater oni wee: aieunes' ad yal tod ‘tite ten io “baw as
PE ayy | atta ute «ha sratesaes ne nod daxate
sa RU RL RN
! ey
aT) gatbense ome Yads 6 toe dastovtow ‘ae we th re
ity. ie A
party ie te be construed most strongly againet him, this rule is
applicable enly where the allegations ore ambiguous, equivocal, con-
tradictory or repugnant. it does not mean that the allegations must
be hypereritically construed or that dieterted or wiveual meanings
are to be given te language waieh ie weambiguous, the meaning of
which would be readily understood by any reasonably intelligent
person reading the same.
, Defendant asserts ‘that the d@¢laration dees not state
that there vae « contract between plaintiff and defendant, but
Berely alleses that defendant did some of the work or furnished the
materi al fer the construction ef the sand hepoer; that this is en-
| tirery seneistent with the hypothesia that tt was dene wider the
supervision and control of the plaintiff or saceerding to specifienae
“tens supplied by the plaintify, under whieh clrewmetences the de-
) fondant would net be responsible. This argwacnt igneres the plain
| Sverments of the declaration that defendant constructed, equipped and
; @onpleted the send hopper in question and requested the plaintiff te
| sand Ate lecometives at this plant before the plaintiff had accepted
“the seme. The sliegstion that the plant was to be teated by the
‘plaintirr before it accepted the came, ia inconsistent with the
“hypothesic that the work was done undex the supervision and control
| of Plaintiff or according to specifications furnished by it. It is
‘Peanonabee preswption that testing the plant before plaintiff
ted it was to demonstrate ite sufficiency in operation as con~
) o4 and equipped by defendant, ehich test would not be necessary
} if Plaintiff was responsible in any way for its censtructian.
, Tt is next said that the declaration states that the
mh t wae to be constructed at Conemaugh, Pennaylvania, but fails
or the property of the plaintiff. It ‘ie immaterial whether or
* the sander was constructed on the plaintiff's right of way.
WR ofyt elit ymdet Ponta ge vlgaorgve @eem bowstetos ed pram i
} i earrir) ednsov dips wsrorpidas ats saeliagetic ane wrisde eine wah a ,
F fax saglfegetin ead sett mem goa eek #7 . tie agerges ‘“o4 "
ogalnaem Sewiway te bestotakh dud vo Bewrsdaca seis iberiilai re a
te griavew ead javewyldmomy et dobiw egenimed v9 ‘to? by “od OF :
—— * gononeeguand yaw Pre Dootwrvebay ‘¢Libawt of btnow h
| , -Gihee ont bape ie
odesa fon wtoh aoiatatoadh etd jal? afters stint an ret en
toe ,Heabie rsh bad Vitdalete nbawsed sebsthbe a taw oxen #
“ed? Beta doowt 20 How oiit te show Sth taabaston sats aege tin Ethel
“Lae eb shat Jods }eeoqed Baw on to nottoustumes aif 40% ral a
“GH? Sonor wit mw FE douth adaentoqem wit ab te trode tamed! hid
iby bs Aide oF Qakireosa 24 Trivaisiq sits Ye tordned hike to te By r
woh watt seotegesmotte ne dde Yoho .ttidaldte ate eet’ soho a
wialy o8¢ evtonge Ratawete CLT eftiansqeox 6@ toa bigow | od
bua heqgtups ,botoette aes Siero Seed fad? Boltetalesh Pre? rr
oF Pebenke te way hatvesypet bas aolddouy ak ito etyeat Bete aly’ ba ‘
betisons hon Tivataty edt exsted Faaly ette se wevdtonswent
emt ys Botord ed OF Baw Yonia wad tht weldage ren” wat ®, a4
edt Metw taetetanooad wl’ jomie sad betqoonl 9k panded:
‘forsaes bow eo lotrrequa edd tohaw sa0b aw axel ost bod sree
oh at 92 yd boda trast atoteas ftlooqe oo Sakbreses to THR
Seba ete te whotted there ont gabteod toi? mobrqarasxg eedandend’
«nao @@ soldaregs wt you to Pitwe et) ebartemouod oF wae a8 be * |
cthhebewin Oo toa bivew tued Kolitw jtaahaetel <a heyebinn ti
“lkek#earrtemoo af? cot yew Yan at ervtenentiae anv 7
bid sastt aotute wolvasninsh sit odd bien riot br! i me ‘i
afiet dvd jetuevtyannd4 | dynannaod ta botontteneo ‘owt oF wa i
‘to sigs ect 02 eonote'tes Ad kw besaoot at Kquaneenod wiiontw 7
ke weHindw Coden tom o2' ox” “rt voatoly ot te eoaore pra a
vow Ro tight artektatate oxi ine. sosuriteaoe saw cohen
ts i 4 drag? ee ae Mi i i ae
re) Lae
The declaration alleges it was constructed at Conemaugh, Pennsylva-
nia, for the plaintiff. We to net see how the exact location ef
the plant is material.
It is alae urged that there is no allegation that the
ineufficient fastening ef the counterweight to the counterweight orm
‘was not within the knowledge of the plaintiff, and that there are
no fete wien negative the conclusion that plointiff and defendant
were in pari deligts. We held to the contrary, The various counts
of the declaration aver that the counterweight wae twenty-four feet
above the ground, attached to an arm extending outward from the
Sander, and in operation the counterweight rese and fell with the
Gounterweight arm, and that having completed the work the defendant
Fequesied the plaintiff to use the plant for the purpose of testing
its operation, and that while complying with this request, plain-
tiff's employee, Petrarea, was passing sleng said plant when the
Counterweight slipped down and off the eounterwelght arm and etruck
him; that the counterweight was not securely attached to sald arm
an4 that by reagon thereof 1t slipped from the arm, striking
| Petrarea; that ordinary care for the safety of those on the ground
“Bevel verow the sander made it obligatory upon the defendant te
Securely attach said counterweight to said arm ¢o that when said arm
Was tilted downward the counterweight would net slip down and off
Said arm and fail upon any persen or persons below, and that defend-
ant aid mot regard ite duty in this behalf but on the contrary eare-
lessiy, negligently and insecurely attached the counterweight to the
Counterweight arm so that it slipped down and off and struck Petrarea,
. It is also said that the allegation that Petrarea was
at the time engaged in interstate commerce ie a legal conclusion.
| Veually, whether or not parties are engaged in interstate commerce
4 pa question of fact, and it is sufficient to allege this as it was
a @ged in the declaration,
ral)
agviginnet ,dyvaomagd da hesomxéanoo naw a noyetis mottexas foo,
te Holianal soaxe oad werd ne fon ob nv _sTibtatete Mt, ae? ®
om
’ _iabrotam, wil ‘
ea} Sadd wivisietie® om a eteds sesit eae, ont, ab at ope “en ll
mcm defy owned row ad of $y towresavo0 ala to ‘gatnesaat teint “cH
etn oxedd Shit hoe , Vihealele at “hs oghe twecrat ants atts tw on |
sonbro'teh Khe Viddutety tests toler ie nos ould ovitopen Mekae Bin ;
a¥micn ewobwy ofT yaks ace “oad of bLod ov seialton rm mg |
test Wwe't-~) oe es eae ‘Ststdvsédiaies ‘ont taaa wee | so LeateLae
Shah tax en
‘oy wett btawiwo yxihusine wee ie oF botonste Dawory, oat
eae ait tw itet bea oot si towxstasros outs aottaxeqa at bam, :
dnabne tod eis Liew ons bese kqmos gakvad tant ba ad Hotewsesng
gnttaed ‘te on oqttue ant rot die Le oat ony of ‘Taatass, ot 4
ontaky eeeupet 2 ke adie pate Lquoe Ltaw tastt bare matters
ptt Aone — stone baw | gate ontanog eae gousrdet seer at ”
oe ‘gaahan'toh ‘ould aoc whodep lide $f oben ohana a we
ea ray wie
te hiae gate dee? of ‘wun ‘bie og “taytowsesiuree bias dont
‘ty bew teres tte dom b Leow iidghowres awoo oui waa
ohee'teh dari ‘foams * waked saoeteg te sont guns “sows
* ae $¥y ase ee ae eam
ott LAD Ytertnow ‘Be me tue ‘tkaiind aids wh wah 8 ad btagot tou bd
BG OLS RE As
ous wd tity tewrod ards old borina soa (torwopeat brim ‘eee
aeterte% doutse Stas Vo bine awed pongtte th gost * meal
nee do ternt et sans Hohdogo iso vit tame Biaw oats at bhaa
te tintonos Laget « ef eotsnmao Votmsenarat at Boxe “an =
spteanon etatereait ab begegae se setotag 3 fon 30 3 nee
naw HE da whit wantin ° ti bitte s a 111 haf te
robatdy aol ke! ema
saoktataieed ont
The lest eriticiem of the declaration is that there
are no facts alleged therein shoving that Petrarea hed o cause ef
action against the plaintiff and ne allegations of facta Justifying
the assumption of liability on tie part of the plaintiff or any
Qllegation that the payment te Petrarea Was a reasonable amount.
The law charged the plaintiff with the duty te furnish its one
Ployees a safe place in which to work, Under the facts averred
im the declaration Petrarea was not fursisned a safe place in which
to work and therefore his expleyer, the plaintiff, wae liable for
damages which he sustaine’ in the premiges,
The fact that plaintiff might heave paid Petrarea more
than 2 reasonable aneunt in settierent of hie claim 4oos net make
the 4eclaration open te demurrer, ‘The reasonablenese of the
@mount ic subject to proof and plaintiff must eetablish by evidence
the amount of damages it base eustained,
It has been held that ene independent contractor may
Recover for the neglizensce of another indepyendent contractor, in
Pennsylvania Steel Co, v. #lmore & Hamilton Contracting Go,, 178
Ped. Rep. 176. It would follow that plaintiff could recover dav
ages which it has been compelled to pay to an employee because of
the negligence of « third party. Defendant's counsel seem to
@oncede thie principle in their brie! by eaying: “where a person
has deen compelled to pay dawages on account of the negligence of
a third party, the person so paying damages, when he is without
fault or negligence on his part and the injury is selely the re-
Bult of the neoglicence of the third party, may recover such dame
Ages from the third party." Plaintiff by ite feclaration at-
emptea to state n ense under this principle, and we are of the
on that the declaration contains oi] the allegations neces~
to make such a Gase, and the demurrer should have bees
“exes fast at mo2tans toss ony Ye dint de atx bier odin es Fob: %
to eeuas a bad aeraxso% jad? yattvoile mtortesdd beye lin ‘ade’ el wah
wivrisan agor? Xo anottepetia on baa Yehemtaty wit tantegs aottas
bd a9 bala adi ‘to uted ines Be soa %e ison baa
‘a wads sin decets' od ytwh odd adie egret? sa eros
| herteva coe? auis toball anor ot sandy mi snetq wtad 2 senyote
so has at soe.f¢ ote a boca Lorca? oom ear astartet otters soe od al
‘te? oddars an +Titeatele ents to yolqus eke ‘etetetedd ‘Baa 2 heb es
808 hmong ent at bumladens saleicanel ‘eoydmsil
, mt me
oxen aorartet bing eras ‘taty den Tidatele dartt ‘dont ‘ett
extant fou aot mba fa ald te nome ates at ‘towenm bidnnoenor “9 anita
a eet 20 ‘geeunfilesosaex edt ,tertueeh of owe ‘gatioxetook eat
| sonsbive w da hitnsno shee beacon dle howe ‘toong ot tooteee G2 Pitot
3 ‘\oeitinduwe ead’ $2 Gogamon to demome das
= xodoatd aoe a8 a0. qobad eno saad Siee whes bak st (SOPs
at .Taiverinee ennbonnenak tort aie he lpumbeiiniieni loi inhi
ane T7008% bio ‘vibeatace ‘ged? wollet bieee ne ee pre
™» envaned eayosene as of vaq of be tksqmed ngad wbel $2 tie a6
—9@ 998 feaauoo eo! gushae tec “gbted Dilkd @ To sameghegee 6
AOeteg B “tate rantyan ve teiad shed ab efatenitg e hit ebvomoa
to sonny tiyee wilt te $nuoooa mo aoganab al of bokteanen save me
duest iv et oat nate , eogomab aniyeg on nonaeg od Ve : ‘
ot ond efortan of vtwtad ante hee. ter Hy ite "aut hay gis
nad soem savooet yom “temeg phar ont ‘te ‘pane bt a eur We te
| “te mol tera oat aah Oe Witate ss “ sean babi | ant sest 032
itt to ete ow enw yekatoning | whey ‘wehee6 | ra bdbte ‘al: a ex i
~nonsa naptteyesio eat tis su indnon settarn A sii fant if tte
t age) hed py men ee »
need $vEK Siukin, serene. oan hem Sp |
ROT Tm rac Yh on eat pe ae
Y
Yor the reasons above indicated, the Judgment of the -
‘Girouit court is reversed and the cause remanded for further pro
; it, a Diesents,
ston, J,, Goncure,
ss _
hy “ak w mph” He
* eis? wate #9 i iM we
ad ey ah) Sie
RM, a hie
Ree ds dg i Re
wie scl
VERON a ar ae)
if
eo Lia iueeiah
ny 4 ea ee
ie Heute 6 8 thi er oe Aaa o spi ng } :
in hha” Yh teed ee se
MPR T Ri eon ‘iy ee
ena wadowe babe a bets ED” 8 cpm" Se SON was yeah we
RUD WCE A in Har iae ly 78 ; ial “ ee
Yeah pide i p a
A nite ase hy vs aan iat sheath cam
8 the ins “htheoe een T a haul
sei " Ki
oe # “ot Rie cow
Its aclu ulsgsch
ye oe i pee
SRS tga PSH a MAS Be aN a
SN ROR CRO TCR ek
shea fei ae, Oat we seh “
oe * ni Pit abe ge een * Nf
ee ase a Sts
mipeet Age sattoue ble ee: bth
Gh r x
A Ch
ana ‘wetted » hoes, seta
“B78 = sisl0
“pRUCE GODSRAW )
Appelies, }
fi APPEAL FROM MUNIOTPAL cour?
Ff VR.
4. OF GHICAGO,
} 1G SCHINDLER,
Appellant.
BH. PRESIDING JUSTICH KeSUn ALY
DELIVERED THE OPINION OF THE COURT,
Plaintiff brought euilt, claiming » comsissien on the
@ of a theater building belonving to defendant end upon trial
tad a verdict for $2500, upon which judgment was entered and from
" eh defendant appeals.
By his statement of cleim plaintiff asserted that he
* ad avored te eecure a purchaser fer defendant's theater; that de-
“Pendant specifically prémiaed to pay plaintiff ¢2500 if a vrespes-
Hive purchaser seoured by plaintiff would purchase the theater; ond
hat on April 10, 1924, the theater was sold to said purchaser.
'e enfent'’s affidavit of defense 4eried the employment of plaintiff
w that he expented any time or efsorte in endeavoring to secure a
pu er; deried that defendant at any time promised to pay plaine
any sum of money; and denied that any purchaser at any time
a by plaintiff purchased defendant's theater.
There was a direet conflict in the testimony of the
es. Plaintiff testified in considerable detail as te alleged
Aversations and promises by defendant concerning the proposed
. e of the theater to a kr. Hirschberg; that he worked with
rs almost a year at various times after the defendant told
m to go shead ond get a pureheser, Hirschberg was dead at the
ne of the trial so that the statements of plaintiff in this
t are neither supported nor contradicted, This story is
r ‘erable in spots and not entirely convincing. Defendant
py i
.
Oahu sil | eatveg gies
gq PROD ARTIOL ROM: MORE HAMM fe Sei ees Pe van nae
6 TO MO ii oe ROLL yee Bee
is _ RE.
4 Cr a oT, A #4
yes Cpe Rak ‘ MM = whe | |
“yamsraem woTeayt oumeresine - “afi me
FOO MRE WO WOLKE AUNT AMAA La
ont a0 eokua Lumoo Fe galmtote chlies bigots miusatest ‘ Lan
lated sagar ene sanbae tes ot pakynoled gakhiiod notaou? a we ous
aided bas heusdoe aaw dito arg b wt, ain bales soqe. 0088§ xot sotbiey a ei
-9Laeqge taabse tod “sok
of taut bastwaRs wilintata nial Te tueetate eit yo
| “oh Pastd ptadasns a! tanhae tas to sealer © eles oo
Ke aa sopcaary a hd Qoges YeRtale ky wae of doa Lmeney. Thine Hiteegs |
| Frond puataedt ent sansiomeg Sinow Thitmts le wa becuse yeantenoe 4
«tesesouwe bing of Aiea nae wateens oft MOL Of Tinga -
rigtntate to tame Lame eft ea Rave h fame Teh to thvablitta at ds
@ exgoen of gattovnshas wt airc't'te to emtt yaa bebuaqne sul tat
wd te weg. ot hea tnotg emis ye ‘oe teehee teh aah belash se "
mukt ear ta Xomaconng Yrs dans be kaw bre pyecom ‘to ase ye"
stwdaods wt tawbos%od boeostoxug wibtatade w
asd ‘te wos fons orld wk tot tines Toonth a saw exec? cr
Sagolio oF ms S isten Sidareh tactoo at bert ieee Vedas ,
beneeoxe odd gakvteodee sashaeleb “ aon haory boa amelis
ay tw dod cow oe. taste patedieatel tw of wedaode oat to.
Bhos teabasteh, ett tedla ments marten bi ey, * oe Z
od? fm bash gow Biodome ,tovastorcse “ fox tien id wed :
eb at Tiltatete Yo etsemmtorn wih sant ‘ou tebe on 26 om
ob viede aidt =. hevethexenoe er bed tomene xostytow
Inuhue'ted cautomivacs ylexlta soa hae atoqe ak 4
=
~
liar
2
eategerically fenied that he ever made any promises te plaintifr,
‘whe was employed in defendant's theater, and testified that noth«
ing was said as to any claim for eammiasions wntil after the theater
was sold; that he had known Hirsehberg for about eight years and
had had a number of conversations with him eomueneing in 1920,
touching the sel¢ of the theater, The evidence produced a elose
question on the facta,
Whether or not a broker ie the proauring eause of a
@ is, ordinarily, a question of fast to be determined by the
wry, but in order that thie may be deterwined fairly all the
. petent and relevent evidence teuehing this fuet must be eon-
{ ' ered. The trial court refused to sliow defendant to prove the
. eet matter of various negotiations between Kim and virechberg,
ai4 not perait ire, Lewy, an employee of defendant, te teetify
: " te conversations she had with Hirechberg, all of which would have
to support defendant's assertion that he Aimeself was the sele
. ,% uring cause and not plaintiff. The court seemed to be of the
) pt 40n that such conversations, being out ef the hearing of plain-
» Tere inadmissible.
4 The exclusion of this teatinony wan reversible errer,
’ only way the defendant could present his defense vas to show
negotiations, Defendant's and Mrs, Lowy's testimony in this
Wae clearly relevant to the feaue involved and should have
admitted, Amongnthe cases supporting our view are Torte yv.
19° Tl, App. 462; Loving v. Kane, 140 TLl, App. 614; Saith
ma Galt Go., (Mo. App.) 177 3. ¥, 1057; Keith vy. Peart (¥ash,)
| Pao. 928; Chets v, Maney, (Tex.) 146 5, ¥. 352; Lube v. Zordtren
pee S. ©. 667; Brumfield v. Pottior & Stymus Mie. Co., 23
_S 1025; » (Cele. i 1 Pas, 696; White
elimyer, 357 111. App. 435.
, For the reason: above indicated, the judgment is reversed ana
oo remanded, REVERSED ARD ARMANDED,
and Johneten, JJ,, concur.
>
in dW pit i
Ce LE es
vubate ta nf asalmoty yun whem tove od daslt Solund “eh tad Rady
aii¥on tadd BeLtidned hie ste eaent & ‘ ¢ashue tes wa beyoLeuae, new e
aotand? ot cede Livan eaotestnmns vo mate nn of va bhaw sew a
on on tend phtoe s
OPEL a2 Yodo nnoman seit iii ivw snoltentovnen ‘to tedmua « had §
bas wtoey Figte toda tot greddoeclit erweriat bh
ovole # beoubwre seupdive aft «totoods oft Lo olen ont
: intoe’t ox? ne motteom
# to eaume gobo eats at tecoud a ton te homme
v ‘eds «d ‘honionatah od ot “ost +o molsnoue # edi tentire ot ond
gtd he ytedet haniurmrote® od vem ‘sil todd vobe0 at” ted ch
" nin ‘oe ‘doum ‘toat shad siliudied ‘eoneh ee ‘tnaes foe" ‘hae Vaods
aut avote oF saahanteb waite of baeg'tet tos Latie ont "lew ;
“spre didowe th Baa tet imowted ‘Suoltalfoned Rvoluie 34 “odtom foots
‘yittoend ot Seabed rel Yo seyolqum as \ywed . amit ‘tlaned rind
weed bivow detvw Yo ite (guodeoaein’ del het oad sha baaeiinbs 8
okou edt saw Tlownkil of fotd Bokinonen a! adupae tan Pebae at"
| edd ‘te od of bemeon anes eat . alata’ tom baa ‘asad
vwalate 4 ‘te: pabtoust oat to duo 0 anew ‘anol touneenes ‘taal batt
sali ovbianriuraits | moet
“sorte ‘ofd hare ves wer emoktnod nates ‘te ‘poten toxe ‘pat’ wn
wor'a ‘et say ‘oaeteb ‘add dnenors ‘bien “tabiso to’ oat |
what ot wroxtévod elywost ek ‘hue By ee . 4
evant hives Ama heviowns ouank okt 08 Yaavetex yltme fo oaw |
. ‘atxat 9x6 ‘wa ly cue aaterooge eeace ‘et agnomh stlonaaday i
i bate bee vaca’ .tit’ 08" ona Sy aatyed 128) soak’ ret hl
fameat) ) ata estas ieee i a co dhl Leah nl 0 2th show”
oti hae neon eon = a&
m r udivis ay “ on it ee ane
one boerorst ry ‘Soooumyhart ois prereh lae oe at
tam, Pee : 2 Pn Bday BS ai Pai % ‘Svat .
or ea anes bas
Cer OANT By eye P Na AVE ye On) at) ORT Oe eA) he ’ ES ZA Ne SMe tes CUI H AT? ON RD A te PR WRC a
Pa
410 = 31542
‘P. b. SHERSON and URS, P, L.
s
Appellees,
i APPEAL PROM KUNICIPAL COURT
vs.
ah OF CHICAGO,
TEP AUTO WRECKRARG, Inc,, and
TAM RANDALL,
a Se Ret Ri Saar Women Sgt “ace gga
Appellante.
BR, PRESIMING FHOTICH BesimeLy
PELIVERER THE OPINION OF Tie goret,
This ie an appeal by defendants from « Juigment againet
fer $2,000 entered upon the trial by the court of an agtion of
rer. Only two pointes are presented for reversal: (1) miejoinder
“ the plaintiffs; and (2) the amount of the judgment is exeessive.
We The subject matter of the action was an sutomebile and
q : wrongful conversion by defendants seems te be admitted. Dee
fen te aerert that the evidence showe that the avtomobile belenzed
te the vive slone snd therefore the hushand was improperly joined
Braue, eiting Herries v, Brain, 33 111, app. S10, and Migek y.
Grange, 239 L11. App. 360, and like cases, It ie un-
tefly true that in order to maintain sm setion in trover,
intiff mast show bis right to possession and te do this must show
Sher & general of apecial property in the thing eonverted. Plaine
ff must recever on the strength of his own title er right of
ion ond net upen the weakness of the defendent. Henufaeturers |
ing Co., 169 Ill, App. 862;
Ma ffrow, 220 Ill. App. 890; Nettleton v. Kerr, 167 Ik1. Apn.
iy and like cases.
- The evidence shows that Mr. FP, L, Emerson bought the
es Ve MOMOTOR “03 Tigers
mobile in question, receiving a bill of sale for the same. It
4 is kses in the garage connected with the home of plaintiffs. Bmersen
, that on the morning of Christman, 1925, he gave it to his wife;
astute stwaes tanned ade Xo nepaxaon sad
ue 4 8A bia wean
| coveLinga
ny ne 2
SA, TARO TM OM aA,
PEL AC SER Koes SQ: Ry
“t
AS Pare stoning
| Oo . abi
Yaa w mo TRE eure TeRTE niin fe
oRANOD GET ED: MOTTE Set all
vovtasvaxe ‘a daamybat, ‘end we savome “sath (8) a janie
bias ‘a Lhd oma tion aa enw totton wis Xt xeon, fartdue oat a
honl Dose tbe od al dawon szanboaten w neleneyase,
= deat ‘bias ae ase Lift en. pel fe ie | yates i
sand wh #2 Bona watt fae Cond “10h £42 ees j
ase ‘stevens at nolion a ‘natant 08 rate oh Bvsgul ®
. hiss
re ik. hi R
‘
were tone ana? oh ot ha, aptenges on of tiie.
satel .bostevaon gates onl ah were qors, En tons gps aR
oy aii SPAS |
“te “fey he x9 esha awa eke 29 dsgnoxds ous sto b shia ‘
Oy te 9) :
ene ogd are een . 20
+a ead vor ti pe :
odd “itaeom, en yeute, Pe = v9 toe +
oe omen, watt a0. ofan “%e ifktd ‘ aeivieoe
‘abe-to at #rttsinte te * hes ott ‘ihe besoonnoe oo
setiw abst yer tk eves ae yen wnentetea ) Ya anton
ASS
a he PLS)
ae its hit fy
2
that afterwards he and kre, Zmorson respectively used the car whene
goer either wished to; that he made the affidavit in the replevin
muit alleging that he wee the owner of the car because “he would
have to take it bagk,” an they were hawing a lot of trouble about
it. Were this # controversy between Kr. Umersen and © ig ote, 4%
might be a nice question as te which Rad title to the car; yet
there ie no doubt that either or toth of thea had tho right of
possession, There was en arrangement for the Joint use of the
an action of trever in the
automobile and was the proper basis for
names of both of them,
i Furthermore, the question of mi sjoind er of porties
| _miatnctst eannot be raised for the first time in the Appellate court
capacity im which « plaintiff auee can be questioned only by
: ecial plea, und not heving been se raised the objection ie waived
4 eannot be ureed for the firet time in the court of review.
eka vy. Chicago Rys. Co, 316 TLL. STO; Chicano 2 Hews
g20 T1i. 424.
*
rowne, 103 Ill. 317; Penney: ,
any defeot in parties might have been rewediod by amend
t, and since Lt docs nat affeet the merits of the case, affords
9 ground for a reveresl of the judgient. Sangedsany
Tnile there was evidence tending to show that the
or the ear waa considerably less than the amount awarded by
eourt, yet the finding in thie respect was well within the
of the testimony. fhe trial Judge had the opportunity of
g upon the oredibility of the witnesses by hearing them
and observing their conduct and demeanor on the witness
‘There ie not sufficient in the record to justify us in
cieeine with the conclusion of the court as to the amount of
ment.
Per the reasons above indicated the judgment is affirmed.
AFFIRMED,
ett and Jonneaten, 77,, eoneur.
A:
OIE. ew
atesie tego sai bea ylev liewqess Hones .ock hae oc shtewsed te ae ig
aiveiger ol? ab tivebiTte 247 absm of Sand got Bode kw soda. |
bivor af” garaasd tap salt Te meaee walt fay, ad Facts snigecl )
Spots eftvets to fel es ‘antvad oiew yactt ga “, deed ok wget of
ok ,Sthe abt tae nveves’! .1h nasreded yerevottas, # ahs ora 3 :
fey sts0 odd af eLeto Boot po baw of Ra teltenisy ota b ‘ea 9
‘te diugix oSt bad modt to tod xo usdiie gad? I¢duoh on ak : y
of@ ‘to osu Sabot ect tet teoemeguerza ae aew octet stolvasns ve
ead ah wovors to moigen ae tet whoaW wayetg O83 auw baa eLigomotwe ‘
| OO eit 0 ted Va RF
o aol dann to tebake\s te to Aoktemey ont poo TOs TUE
su99 if rte galt ah enh t taytt es? 293 bee tax 98, ee tpt
; awpdven te rwa9 ent sh, aut “er, one on ie a rons b
| yore EF Bit, |
; RARE 25
ovese w berbeces anes aves tye yee oh paren gy «Whee
shee. yanee: ons to adiwes al bh Sk ll goa, (See A ines ue )
outs ‘taste wae ot - gathams oonsb ive. eew oxed onde ne a nee
hebrew trwson ald wan it owe hares om Forbes
es Tears tat & vu
“te thusrouge sit ‘hind onl, iaans 2 ost .
oh M igedt Meas) Uy
aust yuttnaod ue seseentin ont rg yoni genta
“aueudte ox? no aedaemed bas goudmoe thedd yubvred
ak ou eiidert 02 bieset ont at pvsdy a tidy For peli
‘te Sovome eff of en ftneo ont To aglienianas edt esd sitkw x
MN ee te Ue a hy ate Hee
shears at Ynomabirt, ‘ott _betaotbat svoda ar
a ae aguas '* a Ree et eae a
Hah oie vag tin teas eer a)
Brinda ' Sedieie?? NO aRacaaN Nall
pt. RR ae a a ite ” eae va
428 - 31560
pti BLANKSTEE and HARRY
» Copartners Doing Business
as BLANKSTEN & FRREMAL,
Appellants,
APPRAL FROM BUNICIPAL COURT
vB.
OF CHICAGG,
BRAVITZ DRUG & TRVGS CoMPaARY,
a Corporation,
Appelice, OR tees : ms ays;
BR, PRESIDIAG SUSTICH HesuAeLY
DELIVERED THR OPINION GF THE Counr,
Plaintiffs, who are practicing attormeys at this bar,
brought suit against defendant claiming $532 for legal services
@lleged’ to have been rendered by them at the request and on behalf
Of the defendant. Upen trial by a jury they had o verdict fer $30,
and from the Judisment for this mount they appeal.
Plaintiffs argue that the verdict is manifestly cone
‘trary to the evidence, while defendant's cownsel argue that the
evidence shows that the services were rendered at the instance
and request of parties other than the defendant.
. The defendant company operated a drug store in
7 in which Edward Langan had the soda fountain concession
® lease expiring Mareh 4, 1976, The G, B. & G. Concession
ny is apparently 4 partnership composed of Masers, Coldatein,
and Galnick, opersting luncheon coneeesions, The jury could
: ly believe that Blanksten, one of the plaintiffs, was retained
: y the Concession Company as ite attorney in the summer of 1925; that
| . fall of 1926 the Concession Company approached Charles Krawits,
7 president of defendant company, and proposed taking over Langan's
c esion after his lease expired; they arrived at an agreement and
en drew a contract to this effeet; the Concession Company was
content to wait until Langan's lease expired, but became active
tMIOO MATLOLMOM MOBY TARGA
OnavTED to
Ce CN ia EN, ae AOR RR oe
Oy A Chie si a a.
ey care ceaRt ,
Timon Mure TO woTATT mur cama” soli
tad abes ta ayortnod te yate outa ‘ew esi, card ontent 0 ay
“peslvrod Saget aot 8808 gmtoleto tnahantoh deutepe thn.
Shaded a0 hate deouper au? fe madd Ve Avtob ae wend eves a2 be "
ot tot tathere @ hed Youd yuet o Yt kates sogt staabian'tah 8
, aS skabdee Yous fauna ahd se? toem tel ect m
“wtige ‘Asan't brass ah gebbrev 46 ede ‘puy te: aYitalele - oa
Ye ott ‘tad? qugté Lsnitubs @* touhaeten ethir nome ive ott of ~
“eolilsant od th henonnet ono eovteren wilt taslt wwe ob
: ‘ dnedad te welt matt chit ae ltang or
oo ‘gh arose gueb ‘* he tetn ao NE ety: saa aie
neteseasine itadimet eben wid hit magad banwhit eosin ak,
“nolenoodod .0 4.2 . wat OROL YF Kote geltutinxs ouast
M3 aistab to soteeeN "to hewdgaes gttletony-ein ‘a ‘ehtneredas ,
bio cunt, ost .4eeleaeanen meee ns antzareqs |, totatan ,
poniasex any ePub tian te act to wae: Od ait Le tens oven tog .
tasty jetet %o veins Thi ah aeamienl whi “ ae Dini
Cr ei i
aviton smasad gud eee enaod a! may
y fs
rete Le TN LP Aa Peep era Po erg VAT
with a view of getting Langan out before that time and appresched
Erawits vith eurgestionse a2 to how this might be done. Galniek
an4 Gel4sisin tol4 Krarits that they employed Blanketen on an an«
Mual retainer and that he would undertake to do the necessary Legal
work te get Langan out without liebility or expense te Krewits;
@alnick and Goldstein had conferences about three or four times «
week with Blanksten, ~ho advised that it weuld be necessary to
Anstitute legal proceedings for the purpose of compelling Langan
to vacate; that Blanksten drew up o letter addressed to Blanketen
and Freeman as follows:
"With referenge to the notice whieh we served on Edward
Lengan, notifying him to vacate the premises at 311-813 Koose-
velt Road, whie we occupy os a drug store, we hereby retain
you af our attorneys for the purpose of instituting such legal
Procesdings as are necessary te compel ERdward Langan to vacate
the premises he now occupied and te eviet him therefrom,"
Galnick and Goldstein presented thie Letter to Krawits
“explaining that Blanksten had advised that ony legal proceedings
against Langan must be brought in the name of defendant, but that
these proceedings were to be without expense to the defendant and
4 “that the expenesa for same would be paid by Goldstein, Galnick and
‘Belden; defendant then signed the letter; around January 2, 1926,
‘the Concession Company came to an agreement with Langan whereby he
Peoetved « check from Goldstein as part consideration for vacating
the premises; the Concession Cempany thereupon took possession and
Procecdes to operate the soda fountain in defendant's drug stere;
“Wbout Januery 15, 1926, ‘Krawitz received a bili from plaintiffs
legal services for $125, whieh h¢ gave te Goldstein, whe said
Would take care of it. From this and other evidence in the
the jury was justified in finding that plaintiffs were
iployed to furni ah the legal services in question by Goldstein,
D mick and Belden operating the Coneeesion Company, ond not by
he aefendant.
It fe argued that the verdict of $30 was « compromise
ff aonta sure"! + wonuty tuode keeco re tues bat niotubt06 Dae xe
mags « @
betaaatque Bie weak § snus oreted, dei anata gal sseg to woly a —
do hitad attob nd #16 ee whet wot of * anoltannaye (ftw , 7
ta ns no rete OE hove len yay pace se biont, bho a wee a
Leys t Vrsemeges, a o iad Orta tro! om bye on ‘eee “bam xoateor ~
{ad bworaa of onasgee *o witiidnds soit iw See emqund ‘iy ip ‘
ot ctmeengen od bivew #2 sadetst bowlvbe ‘ede Mod ose £8 athe,
stipe. pat Logos %e ewoquug ear tot aantheasore Aagok oats en
Leaasooseruat od besarte tes fone Mv ad A iadiy: pistes paste tetaaer a
aon BLB0 £58 fp anelartg ec Sieony od mls bate
iste: tdexed nig ot tp Seely x ty arane4 bir
Saget deoxe antinudiieal to seaging ade ag) @ CaehOr toe, mae
atagey of ‘Hegred biawhs Lege of veaieoela” 8%s Ge Bat.
is oy » pmeowheree sia wis #ehve wd ft aiapene, 2 me ‘skosnimee hy
fh sxe dupbuoron, oat, wit SEROMA tuesit dw ool ” a tew r SEmapeaene§
ore 9 kde sfiotahsed yd blag ed Bikcow, pian 0% apesoaee, oh
,OSek ,8 y¥rewniat Aewr ta predtet gals beagles Rice Saba s Ob. 3m
esi Yoon ale us yae t dtaw Tagsg ore ie OF BmOo Nake gaa neluaanstod
gud toon 20% avigorh teen did Rae alessd Lod, aoek, Moody. a bovis ha
bins solasoaaog sent Roque weds YRg gay? Ho ianngsed od Miisihlid
jouate weed a! snahao ‘toh ot manbrene aboy ody Ssetene.. f; bpbaag,
art Leake sa won fiad a. baviosey . addins), (S8OL OL per “0m
bhee ode aa od ,nioseh soe 08 evsy od se tain e826 ot, Sou beree . fae hes
: ona at eoneblve wise bie whet wor tt, to etaa 809] Esso? «4
ter ETittatatg sass yaioals at, bedi itant aoe ment :
adored £00 “¢ Sohtwenp ag togivtoe Lage pie, Madore 9
: “d ies fan , Griaqued Hotesroned oad, mehoanay winlntcans
eet we er te nebo )
ea tnorenee, Phil eee ‘te sa niaey, tt as sue at at wr a
verdict. This is evidently the amount of cesta advanced by
plaintiffs in tne legal precesdings, and the fury might wel,
believe that it was only »reper fer the defendant te be taxea with
this, as these proceedings were condueted in its name; alee in
view of the fact that at one time defendant offered io stand o
part of plaintiffs’ bill. in any event, the allowance of an amount
less than the whole amount claimed cannot of itself, in the present
@ase, be sufficient ground for reversing the judgment.
Some complaint is made of the rulinge of the court on
the introduction of evidence and the giving of inetruetions; but
errors, if ary, in thie resneet are not of sufficient importance
to fuetify » reversal.
Ye cannet say that the verdict is manifestly against
the weight of the evidences, and the judgement entered thereon is
therefore affireed, |
APP IREED,
Matchett and Johneton, JJ., coneur.
Pee a
i. ney ae
aR aah ay th ee
ye baoanvis afeos te $enrome ond ‘¢ftasbive al alae aly
Liew teyto eat odd bin Bpalbanoorg tapak ony’ ry aud te
atin bowed od of ‘Janhue'teb edd, yet Te gary ytno nw yt dass .
ad ait Ls jomsa wat ak bedeubava er98 agatbooootg enost fed 2 a i z
a. baste, od pore tts towbae'teb oaks vag te saat ‘seat amt 10
Semoun ae re soaawes fe eda aimeye ene ak + bib ‘aaldatate het t
; tole a
toner , ma _hhouts to tonnes beaike Le Jere: ‘eLouw oh ¥
tes adel Ry gh f Aden itor
“.daoamhat ons gakenever x0 bauer fia to 27am od onus
1b 94 SPARES
i
Fs
eu deve oat Xo and Ler elt 26 tamed baie tqneo aoe | "7
By spe Mt a i a
tod parm dsousdeat ‘te aniv ty ad hate aoneh ive te wo dtouborsat
soantreqsd dad toate to sou ou aoecaer atest me yum
ane ie Rb Be (AY Bi ey) " ote Me @: Le a
7) t
if
‘ede pewnade: fer igie® seiatataite bre stitial te tiginw 9
: beg phir togpaht, hh
ROTO 4 LT, sei ane §
BM oP oer Mee
ay yey, ? ecw oi ae
ities ia Get ilhit AC yi "
4
jf RS felt aR
me | wait Roe See
vill f i nae ; a avai oY " rs alle é Oe Sh . Hi ‘ON Uh Fo "
te ku Bahia Hg Een St Ca ge Wangs RR ta i 8 ge alae NER ios hie Tay | Bind A,
me a a YB sean tee
“eee Rea, wae,
See Ta tase | fe RARE ek Bae 5 Nay "pea , rt a a ar % we Oe
ik A hl OD ila ied hi roel wr 4a
64 - 31177
ARWOUR & COMPANY,
a Cerveration,
eae meet
Aopeliant,
APPRAL FRGH BURICIPAL UOURT
ve.
7. ‘ ile OF GHICARO,
* BARRETT COMP .
a Corporation, k 4 Y
Appellee. , 5 rt 6
MR, TUATICE JOWATON DALIVERED THE OPINION OF THE COVRT.
Thies is an wpeal by the plaintiff, Armour & Coapany,
from a Judement in favor of the defendant, &. L, Barrett & Company,
im an setion breught by the elaintiff te reeover damages fer an
alleged breach of contract by the defendant.
The plaintiff alleges that the defendant entered inte
® contract with the plaintiff to s¢12) plaintiff 16,000 galiens ef
@live oil to be shipped from Spain and te be delivered to the
| *Phaintirr; that the defendsmt refueed te deliver the o11; that
the Plaintiff was compelled to purchase the oil in the open market
et an increased price, and that os a consequence the plaintiff was
; damaged to the amount of $2621.50 with intereat.
ib The defendant devied that it entered inte such « con-
| am and alee pleaded the Statute of Prands.
The case wae tried before the court without a jury.
The principal facta whieh are not in dispute, sre con-
e4 in the correspondence between the parties, ‘the plaintir
iTaetured soap and wanted the of11 te use in making soap. The
t was @ denier in row waterials, and as euch dealer ime
ohive o11. The negotiations fer the purchase of the o41 in
ion were begun with the plaintiff by Justine VYeinshenk, whe
‘a ted the Brazilian and Colwsbian Coffee Company, an ixpert-
E firm, Lut oo the Bragiiian ond Colusbian Coffee Goupany aid
Mines on the barle of Spantsh Buchange and ae the plaintitr
me By , iM 14 i
eame08 a saonnai a | «ase teb “oat te
panera lke ano ‘ott ne! oa . ais fouls Ni Me oe
“ato ote sarge kh at ton ore date, roe foqtoatee ost
Viambate eit mo texaq ait noone’ sanehaoanntine one wt
ene J omoe nation | at vow st fhe wt bo tinew basal aon 7
bought only on the basis of Ueited States Exchange, the matter was
turned over te the defendant, whe agreed te quote the vlaintifr
prices in Mmited States "xchange.
in the negetiatione with the defendant, the plaintiiT
Was represented by Sd4ward 7, Martin and the defendant by George i.
Suddard, On Jenuary 4, 1924, Weinshenk, representing the Breasilian
and Coluxebian Coffee Company, subsitted to Kartin for wmalysiea a
Sample of o11 which Welnshenk eaid wae avout 2 per cent saeidlty and
Was neutralized and denatured. The sample had a ishel of the de
fendant on it. On January 7, 1994, Yelnehenk wrote to the plaintiff
as follews:
"The writer enlled at yeur office en the 4th inet. but aid
net have the pleasure to meet you personally.
On that oceasion I left with your Wr. Gebhort 1 sale of
Commercial plive o11:
ig Densturet and neutralived with acidity net ex-
This oil is slightly inferier quality te our previous oils
._ Submitted, althe the acidity contents is only 2%, instead of 5%,
It would interest ue, if this new type submd ttad wowld be
of interest for your requirements, ae thie of] oan be had at
— lever quotations than the other type first sub-
tt
Thies of1 is particularly used in beth Spain ant other
countries for seap manufacturing purposes, having proven iteelr
quite advantageous.
Since submitting this ofl, the market has again taken a
very notable cliab, ae the Spanish and Burepean markets shew
daily more and more, the unexpected large shortage.
Your kind informations on tuls mew quality awaited, and
trusting that, if of interest, you will comnunteate for "prices,
with Meesre. K, L. Barrett A Co., we beg to remain,
Youre very truly,
Brazilian & Columbian Coffee CO.,
by J. Veinshenk,*
Hewing reeelived from ite laboratory a repert which
showed that the o11 was suitable for the manufacture of soap, the
Plaintiff wrote the Brazilian and Columbian Coffee Company on
Tanunry 8, 1924, as follows:
®attention tae we Weitnahenk,
Gentlenen:
a Your letter of the 7th received, Ye have talked with
i Mr. Suddaré this morning and hove made him an offer of 9$¢ f.0.b.
: Rew York for 20 barrels of Olive ofl -
100 bhis, Jan, shipment from abroad and 100 beis.
B: Tae pecins from abroad,
Se pe at IB el re ar a ahs
TV RES
mer totian oft ,onastioxnt estnad betta Ye oload add ma xhae del
‘ ?eb¢adede oc? etoup of beeTge enw of eta ta, ove a ‘tove :
— engasiioRe aedagb bes kei) at
thitalele oat ,tunban'te mela ad be uo tals ogo ont a
oA ayteed yd Srhen ted welt baw mitwed .% brent et heb acer |
aaiiiaasd ot puldmseugr ,Aeesdanio® , Pes i" en | we brah .
& gheyiaws tok alftaM of Hedtt hatye yang? ee Tl od ashy LOO e
fas ystbise is00 t9y T tveda Caw hiaw davdeale® dp tay tte ve 6) . a
-s& pal, ‘to fedeaLa beat ‘eiqane ont shaw taceb bas Donttertves 1
Viismlelq es ef stony tsp sin de® wonee a? wm “ i#
rt “ee ae
bE tud ant sab i sana, mee wt te bein. ‘ ‘rr
Liateereg oy teen ee te”
Ye ohms 4 due cba’ ot aHoy Mitte Mat I om
wee fon gtihing ae ke Dee tinctereis hae,
8 oT Ts Shae HN hy
: on baa oe ae ie cle thas ae ye pT, le bd cet
eRe FeTET weet Tete ait pase ru cada d Bole
‘thoes: "severg dag a rhsnsmngberce ae tie
en ‘wahaen nee
eetodtg tot efso Row. /
) 00 sores "mi f til ths
, * ieoganie® .Coee
de kin droqes a Crodatedal at ‘stort anit i r
od ,qeod ‘Yo wxudbo'tundd odd x0't ded bys daw“ n26" ote “¢ 6
“he! nag perten a” seal feveasneiol sat asoee
Ais
AULA ire
abide las ae. ime
Otay) one ‘te ve ae ate by i Ay bate f
equal in every respect to sample you submitted, W. ¥. re weighte
fT. o. b.. cars tew Yori, denatured. Ye made thic bid aubjeect te
cable confirmation and ur. Wuddard theagst you would have reply
by tomerroW noon,
Awaiting your advices with interest, we remain,
Very truly yours,
Arwour Soap Yorke,
Baw. », Kartin,*
To thie Letter the Brasilien an¢é Columbian Gefrfee Cane
pany reslied on Jonuary 9, 1924, an foliowss
*“Sttention Kr. Edward ». Bartin:
Bear Gira:
We thank yeu for your revliy ef the Sth pertaining te new
gemple of Obive C11 submitted to yeu by the eriter, in behalf
ef our ehippers sbread, Keoors, Garvonell Y Gia,
After taking the matter up with wr. fuddard, of Me. L,
Barrett & Oo, of this elty, we are autherized to give you
the following quotations, based om our price quoted in pesetas,
and whieh they im turn ere able toe offer to you on the 0. 5,
curremey basis,
Please aste the following, subject ta Gartbenell's final
Gable aceepiance:
MR. ik, Barrett quote thie of1 ©. ©. b. Kew York in Barrele,
at 95e per gallon. In thie ease, all risks remain on your
Rands
In fmke, they will have to ask §1,00 per gallon, in which
Gage they are taking uwoom theoselves 211 riske, which could ke
ineurred on goods ahipved in Burreles.
neg now offered te us: 186 Barrels for eshivment in
anuar
additional: 150 Barrele,for shipment in February
additional: i160 Barrels, for shipment in Mares from Spain.
It iw very 4iffieult to obtain Mareh quotations at this tine
as the market ie daily advancing most rapidly, and since our re«-
cent communioations with you, has taken om quite a serious ase
e
; Trusting that we will now have the pleneure to serve you,
thru our goed friends, Messrs, B, i, Barrett & Ge., and with the
Kindest recurde from the writer, we beg te remain,
Yours very truly,
i Brazilian * Columbian Ceffee Ge.,
m by J, Peinshenk, *
On January 11, 1924, the plaintiff wrete the Brazilian
a a Colushbinn Coffee Sonmpony as follows:
“Attention Mr. J, Weinghenk,
Your letter ef the 9th reeeived. We have written M. L,
: ft and Company under separate cover in regard to this Olive
2 like sarpple recently submitted.
We note that you specify 150 barrels in your offering for
-Bebruary-Maren, Thies will be perfectly satisfactory te
‘Us. Ye would just as soon hove 150 barrels in each car providing
aditytew’ ox iY. hes Ftadee voy wT qure oe divine sere ek! cam
as tootdwe kid sitt ohac oY .betiwdaneh , vat wel wtao..d ae
wh haa nat tn fips otdéne”
acd Mg
_ ftlamet aw ,saetedai adie’ aes aves ‘the ou sais ia ©
pend AM Lect wey i ca
as eta” gage ti Ba Pea VAs A Oe 4
" Mista oT gw : eee Ce
909 POTIOL An tsow Led fre ne bf deavelt. out antes £ shdt, ee
mwoltet aa MOL »e veneme’ mo teases
iabewes 4 busehi Gh Mole RTAM i 6 "
wan oF puinintsad. HIG ops we Her, Hii 1
“REA ded “oth lag ay Blt Ley '
# pine ; protic ide
‘ER Ko betas nue” A. ae chet mace shears agbiad's
woe oviy o¢ hoaltedsue ete ow vote eft? te
atetnes at bedewp aaltg two me hoead "siggy ‘on
, BH osid ae wey, oF wto ef sida etn axed ah gon)
teart ot £Lenodaad ot ‘tee tton eialvotgot ‘ont :
vaferrat nk daet well df ot Lio aldd wt
” toy nO ulawet Winkt Lie — _— ae
de tiie vet mig rag
ag aiwes ‘mee inte Lis
Pa cniuiel oved tinaow wey teywodd asbhwe
ae apg be xe etoryax Sa it Ot be
‘yrarndat at de it sinha an
stot ment yesh ak femme bi ekonied ORL
eake whds te anoliat cup sidigbel a jai ¢ 8 ’
“in exeixee a ‘od hup a P etal, e
avres of winaiuits $43 ower won we
out hw bow er sg re mae
it OR ae ale
42 09 oo'ti90 salam 135 & wal ae 7 i 4 Sede
® dine ete 3 ¥ 7% ; es) Pools iV
SPO 3
noite asl ogo, ubtatete ose ase oS, team pepe ee
NPS ERS, We, bi atu wore, sm
Meo iits i
Lanavieaer iy me soteant tan, (REA vaca ee. ony
od .M meee law eved of yrs MS @
evliO wid of bxaget mk cevOO ecetegqee reymOD Bien
abet d hand sie prof pt elquae
ae? grbae'tLo: wo mh we if xtinege ney, sont atom 4
ad yrodon teliag sores Bar a tSE .cip ne Megan
aukh ivory. ‘tae Haine i hal
et
by
; *
a
Jaman oF “naatt |
Wns ne Atte on
it can be traneperted anafely without any danger of dawage or
leaking and we preewae during the eol4 weather thie can be done
Without 4ifficuity. We now await reesipt of your reply,
Very truly yeurs
Armour Soap Yorks,
Sdv. FP, Martin, *
On January 12, 1924, foliewing « telephona conversation
between Kertin, representing the plaintiff, and Guddard, represente
the defendant, the plaintiff wrote the following Letter to the
defendant:
“attention ur. @. 2. éuddard,
ge ee ‘
Cent Hg our telephone conversation - we have bought
two tank cars of 16) barrbks each { or 8,000 gallons gach
Olive Cil, equal in every reapeet to the sample submitted by
ir, Weinshenk on January 4th; ehipwent 166 barrels each February
ond earch from abroad, same to be leaded in our tank ears and
denatured without any exocnse whatsoever to us, KW. ¥. official
Weights, drafts to be paid on presentation of documents in per-
order, price $2.60 per gallen f. oc. b. Hew York.
Wo have « gail portion of this sawple Left and we would
like te have you or Xr. Veinshenk eend us another bettle of
abeut 4 cunees so wo oon have it to serve ae a type sample,
He doubt Mr. Yeinshenk has shown you copy of his letter which
Will explain to you regarding the quality of this of], We are
Sure that the ei] delivered is fully equalh to sswple suboitted
which we have tested with great care and which we find weld
suited to our needs.
Vary truly yours,
| Srapuy Sean Works,
i ¥. RP, Bartin,*
On the game day, Tenuary 12, 1924, before receiving
the letter of the plaintiff, the defendant had written the plaintirr
ne follows:
| “Attention Br. B. », Martin.
Gentlemen:
As mentioned over the phone to you, ws have entered your
grder for two eare of Olive G11 as per surple euomltted through
ilian & Goluxbian Ceffee Company.
One car of 160 barrels for February shipment from Spain;
@nme car for Hareh shipment from Spain, These care to be bulked
at New York in a tank ear. The price $1.60 per galion in tank,
f. o. b. Hew York, ‘Terns net cash againet bill of lading. ‘The
Gontract embodying these features will be sent for your signature
Separately.
. Ve can assure you that we thank you fer thie business, and
‘We trust it will be but the beginning of further and mere Lue
portant transactions,
Yours truly,
HB. LL. Barrett & Go.”
0 eganah to tegnah yan fuodtly yleten epee | od ano ‘
Fae: wd cave ads aaa yy Pan pe tpnetgh” Bane
foi dria ol wtederor tae to vee’ dps yo ae exes
1 HN a ea nd dart? ete
atte Mer UNE.
; | Pent Tae A ORR os wil pa eon " M
ol saa te rsou niraciqe ina, * padwo tte’ <aOUr RE taunt a0 ae Ny m
ataonerqot ,Srobhel tas |, Tiktalale oat ARths ae ae tga e ake 9%
“edt 0? “totter cial ade odore nyse idl -Faaban Tob ons
“ sbuanut Kel 8° tie Hotede seas
sabedse vioece gy e
cuanto ome, bap gic ne Pe
baa eras asod swe me bebagt = \ ee
fatoltte .¥ «a we “od tevocudede eadoune Yow ¢
“t9q ‘th sfaoswoot to soltedasmexy ao blag ad We
f iet weet yhoo .trotsag neq 00. M
bho aw Daw ftel elomed whit te sy
ine Panskae aadines au uy bere oh, Fo woY
nd (th eved mao of of arenme,
aie: setiek eit. qe eae wat awed gan amosiania®
oe ge Eh, oma me Belt J, phi tdane ade By renin On
hag t te koupe, hs
five hakt oe py Weg hae @%ae Ls.
siitigoat ome tute itor
2) at Wale * alt a mont mane ss
“‘gityivesd ‘waeted” OR OL ef rer ay an ‘ahee Ce
mivalate’ ‘att aed Sew bod taehne tes “Gay pasate di
Fat NMR CH: a ah 3 Ba eee
i ‘i ane }
pene “ ott tat hoisiegtat
cise bexszne ava ee yore yd Gitlay ast to¥e homitiuen my HM
Posen fh boo? Ladue dae q Bu stad nat to aren owe tor 3
ne YAOTans ve es eat
if. paiva? wort Joouqhae Jeberto toe reread O80 ta we end |
bexivd ad od arad ened? . tage oy das
<font mh noilsy soa 00,28 ootng ® "tase 2
oat spathal to Likd de teeg son ‘cone.
osutach te swoy tet dase ad . Sesion neg omen?
auntehaid eked” “eh,
wails enon fiw sei e,
wisalte tal “0 gi * tis aa
On Jenuary 14, 1934, the plaintiff wrete the defendakt
follewing Letter:
"Atiention kr. G. H. Sudderd.
Gentlemen:
We have yours of the 12th confirming the trade which we
made with you by telephone on two tank cars of Olive 012, each
of 8,000 gals. capacity,
| You don't mention some of the features in the centraet ag
Moted in our confirmation of the 12th but wa presume full dee
tails will te mentioned in fine) contrast wich you say #11. be
sent te us very goon, Ales plense advise ue in ample time jJuat
when you wieh te have enol tank gar down for lesdine, We send «
_ +§00d meny cars dewn tc the Seaboard and, in all prebability, ean
Send ever the empty tanks te the noint here you desire to have
them loaded without any trouble er any delay.
: Awaiting your further advices, ws remain,
Very truly yeurs,
Armour Soap Sorka,
Edward ©, Bartin,*
On January 15, 1924, the plaintiff wrote the defendant
the following Letter;
b ae
\
Gentlemen:
Please do net overlook the request im our letter ef the
22th to send us am additional sample ef the Clive OLl which
we have purchaeed from yeu.
Vary truly yours,
aregur Soap Yorke,
By Edw. P. Martin, *
*sttentien Mr. G. &. Guddard,
On Januery 18, 1924, Suddard, representing the defand«
@At, telephoned Martin, reprenenting the plaintifr, that the de
‘fendant hed made a mistake in the sample originally submaitted te the
plaintirr, | |
On January 18, 1994, the plaintiff wrote to the defend
amt as follows:
— Gentlemen:
a Referring to our istter of the 14th, and confirming our
conversation of today ~ the mix-up on thie Olive
+ 88 you say, ‘#9. Geinanenk, is very unsatisfactory.
@ submitted eh the label of Kk. L. Barrett & omnany,
| WO completed the purchase on the bawie of this seuple, as
yd — of the 14th and written cenfirsation of
We have sent our boy down te reeeive at your hands the
sample, but if this new sample does not meet jour require-
ay Weil as the sample submitted originelly, wa shall exe
L. Barrett and Company te give us two cara in accordance
it
Hie
a |
alta odd ot ow matennet weit sb, vk inet a” |
susdsod antes j
|
Probiet 6k ow iieavnat a>
“GW baw body Wade pater Pence wee ant “6 Warde dian a of Be
, sae ALO OVLAG Fo anno hed ome no panden inl. ue woe, et “ote |
! sao gee or Ye
Se Sonténon off of aomrdee® ould ie eamp byt phon
web Lyt onmentg ov dud MTL edd %o pir pees oi ps
af £47 ow way dokcw teactune foal? al beaotiaom od Ei be y
bast, oul? olome ak aw eolvhe seanle oeié ,mvou v as of on
a baoe oY .yihbood sok merch tee dant deve sved oF dalw roy
pol tt tide ove ff wl ,dus Bieadae® ad? of pe Stee yam
are pf pre, 2% badsey faked sat of sdandt wan, ea,
he a vp ste om |
— Bf ba ans teat |
aed ry odie’ awe viilail
ie tiw tho evtio oat s ®,
ae
«eae er
wba teh, aad sia ientinesteaida PRL BE verona, =o
moh ont Jott, -TLemte te ony, pals anmetae .ahnell he
Hee pay
sate om; Ld dina magatate ast ase mr we
Fai aalRy
ns see
“eieteh tar sonae inv et,
by £89% he: sel, oy
i ar a Fs ad To
ou ori tw OX wo $e. By Bb os wy Sf pnt od
4 Seo Eau ow Ctoatgine Lyon oa? aa Liew 6
with our contract. We went to « good deal of treuble te test
gut this of] and arrive at thie trade with you and, under the
cirewnstances, we feel that if conditions were reversed you
Would be entirely fustified in demanding material equal te
what was purchased in accordance with saaple aubcitted,
We sincerely hope that the sample yer «re now submitting
to us will be equally satiafactory te our Laboratory in every
Peapect as previous sample, 4 portion of which we have Petained.
Very truly yours,
Armour Seap Yerza,
Gaward FP. Hartin,*
On Janusry 22, 1924, the defendant wrote to the plaime
tiff as follows:
*Attention bir, B. ?, Bartin,
Gentienen:
Your letter of the 15th instant was duly delivered to us
and we delivered to yeur messenger corrected suomle of the Glive
G11 upon which we quoted prices to you. We have vince bean
Waiting in hopes that you vould’ find the new sample as satige
eahaia for your purposes as the one delivered to you Just be-
ore,
As our wr. Guddard eaplained te you over the telephone,
When the Srasilian & Colwsbian Coffea Company on the 4th instant
delivered’ the former sample at yeur office, they belleved they
were delivering savple of the ofl] sow sent you, They wrote you
on Jonusry 7th regarding tne sample eo delivered and calling
ur attention to the fact that the oll wae dexatured and neutral
zed with acidity not exeeeding 9%, wid that it was of slightly
inferior quality to the ofl previcusly submitted to you. Ae a
matter of fnet, the ofl delivered to you on the 4th instant was
identicsily the same of] of which o sample had previously been
given you on the higher quotation, The examination and analysis
ade by your company could not fail to shew that this wae the
ease, ond that an error had been made in the sample, The senple
444 not in any respect conform to the ofl described in the
Brazilian & Columbian Coffee Company's Letter of January 7th.
The error apparently arose out cf some transpositionsol
labele on the samele onne. Ye 414 mot 4iecover it antil reeeiot
ef your letter on the 12th inst. in which you asked for another
Bottle, It them developed for the first time thet the sample
@elivered on January 4th was from the higher priced ofl,
As indieated in our Letter to you of the 14th instant and
in your letter to us of the 14th instant, the transaction con-
templated the preparation of uo ferwal signed contract, and the
@fror was discovered by us before such contract wae consummated,
in view of this fact, and eopecially in view ef the fact that the
@Frer must have been apparent in your office upon an inepeetion
amd amalysia of the sample, we cannot consent te delivering the
higher grade of1 at the lower price quoted.
ae We are etill hopeful that you may find the last sexwple of
og wubaitted to you suitable for your purpose and shall be glad
te Till your order on that of1 on the termm indicated, provided
_ +yeu ean give us the order within the next few daye. Prices are
re ing on these oile end we cannet keep this offer open more
«than five days.
Respectfully yours,
Be dee Barrett & Go."
1 ane
‘feet at aided Yo ‘toed hone hot dave oF deetkacd aye im
ade redter , ie woy atiw ganat alae dn oviixe ban Sho white ¢
wey hearever exew amolsthnw 32 gaat Loot ow " deta ieee
of degpe Saobvedeas gathcamms af beltitert yhesitan ed hive
' "~ -Bettbodue efqwne etiw goombiroson af beaecotm on ‘ve
goltehadya ron ots way piguax ont Jas? ogee Yinees: *
yaeve at yictaroded ave of yrotestaltes yilbupe’ wd ¢
donlwind aved ew na ldd Yo aoltvod 's 92 Leemanas beau Mae
ee ete? . exe v ey
OT Saee@? 4ae8 “aorta
bins We hd a} rm one By
ee ee oe tok Sua 8a” | pe 2 ate anata BS
evil? ent te alquas betpettde Tegteryen suey oF Beuey
peed souls eyed aW vor of eaehiq betenp ov do daw
ogitas #0 eiquen wea pit ball blvow sey send em of ge
“an Jarl wey of howevifeh oay 947 ma. peRogtud of a
~ecerigeled gat? cove wey OF bouletans srabhye ‘a ue aA
tasteat coh said So yaugod ev'Tio? anidawie}) & aellingsd ond |
yous bevelled yeas oo ktte tw0Y¢ Ja elcase wemnet edt & ov
voy etouw vod? azoxy fone won sho om Yo eLgume yatcovt
gaiifiac hue Seasvisen oo sai ieue wt yeh teues at 9
fevtwen ben bourtaneh saw Lay édt deat eH8 oF aoita
yisnalin te aaw ti dade bas , me aaibeqaty dou yFthles dtiv'’
a eA woe of hoddindes * winnaivery Eke ade af yoihaye. xokaete
aaw goataai “¢) aff an 16% 0 Botevilos Lie.ott , test to seed
ead yeuotvery bad elemit a Mhtw Yo flo sons of? clinekin
sieyiona toe Reh tanianne way ptohtetoup tedght est be Oy wey,
ant aaw' ates gore wate ot Livt fon hives yasqagh aaoy wd
Legume omy ,olgmne ant al shen mead bad torte me. fast :
‘aa’ ai hadivdash £26 of} of arec'taes Fondant Wie fe
#2? yteuonh ‘to wetted et yaad sette? metday ted & *
‘ponmods baoqeuees sine to toe waive eithensdws tend eat’
fey looer Lh tows oi wxeveoeth fom bik oY .eneo efemma edt og @
tadgons sot Aocue poy Caddie mh ,@eat AGRE ed oe setiel Be
elgnae att tes? eal? gant edd x0. je¢oLered itt! Eo Stree i
ehie Bec trad wee de and aod wee ab peeved ad beter yy
| Semsent Aghd wid te wee cf Otte amd wh hedanibal ah... i
onl aottone ants ont ,toedens MRL ods “too of cette lk’
emt bas , soar dago beng da Xawigt « bo. aviteteent¢ odd bots Lene
betemmtios sar toandtuce Soow oneted ay yd Deweroedhs agw | .
ods tad? too% od? Yo wolv nb Ehielvogoe bux , tot 8)
sotvostaal cm meg a9 tio teoe it ren ge see
ome waitarite® hae Foredne Jounsd
Bee adie sh
te” wtqnan Faas oad Dart yur |
baig ed Iietd hae eoegarg bit bs wi
Bets set mt art “ne the |
ay of honevileh yink saw daavend oud ans he pe ae case
VS hg
i
pm AR: |
i 4 oy
Om January 23, 1974, the plaintiff replied te thia Lete
ter as follows:
“Attention Mr. @. %. Guddaerd,
Gentlemen;
We are in reeeipt of your favor of the 29nd in regard to
the Glive O11 which we purchased from you a6 per zample sut-
mitted.
We have just received repert from our Laboratory on sawple
which you sent to us for approval te take ihe pleee ef the emaple
on which we consummated the purchase. Ye regret to say that reur
sample Ho, 236 does not fill the bill. It bleaches very poorly
and the odor is not nearly so charactorietie of Clive Gil as
mur he. 164. We therefore are wnable te secept it in pl aee of
material you sold and would like te know whether you prefer
te supply the material we purchased, im accordance with our
eontract, or whether it ie your wish te have ue go eut in the
Market and buy for your sceount.
We shall be gied te have your deeiaion shout thie se early
ae porsible hecavee we have some offerings before we thie gerne
which we shall be glad to take advantage of te spply on your
# te us, previding you will give an ineatructions te buy eame
in for your sceount.
; Very truly yeurs,
Armour Sean Yorks,
Ga4warda P, Martin,*
On January %, 1924, the 4tefendent anewered this Letter
as follows:
*“attontion Mir, Edward PF. Kartin,
Gentlenen;
Your letter of the 23rdé inet. ie duly at hand, Ye regret
that the last eample submitted to you does not meet with yeur
remente, and are most sorry to have any controversy or
‘@rense arise between ue.
However, we believe we indicated our position te you quite
ot mee in our Letter of the 22nd inst., weiech you say you re-
Yours truly,
w. Le. Barratt a& Go.*
On Jenuary 21, 1924, the pleintif? wrote the defendant
as follows:
"Attention Mr. G. 4. Suddard.
«Gentlemen:
Your letter of the 29th inet. received and reted. In view
‘of the fact that you decline to deliver the 120,000 ibe. of
Olive O11 which we purchase4t from you according to sample sub-
‘Mitted ond in line with your confirmation of the 12th, we are
n * 011 ef « suitable quality on the apen market on the
basis obtainable and will charge M. L. Barrett & Company
the difference between the orice we have to pay and the
at which you sol’ it te us.
A® soon as the deliverice ara made on the purchases re-
| to, will render bill secerdingly.
Yours very truly,
Armour Seap Yorks,
By Bdward B®. Martin.*
wtel whit of Beolicos Yiivatete ext he Ia Yrenareee
brebbut oh oD «hh, witsibobay: es if neuen aa
gee puioes at base eid 4G, ‘tavet ey To. seusoer
rigs Gignas TG ae wag Gort henaitotyg tite
yin ao gtodargded wwe meth HMoues bivineie +r obiat’t
siquan eit Ye py oi? tad of Lavoxrgys tot aw o& tage nee
ae gacd yes of tesgex of ovasiouwe oof botamwenos ow do bite
Seog Yer ‘pasioaeld ei tid od? [42% Sem each BER poh of
as £29 evisd tn gléadiodivarads ws y rg! es el. rg
te pely mt 32 tances of oidany Ota ott £ 8
solety woy tedtodw word of olf Diver ham Sian ; pi, bi
a0 Atiw eocehteoae al ,doaatoxwg oe talratom aa? %
of? gh to 09 Se aay. of Make taney al 72 teceartw he? Y
fasooes troy teh yod. ban
~itae on g2cd doode nate sae tee oved oF bal ad Lh
-witem eibt sw aroted ayaine Tio asec ares. on aeons ahd tee e
‘wey uO yiege ef te egetmrbe otfed ot bety ed £ oe de haw
same. Yard at f enelsouniant se erly Lhte hs geek en ve
atey yin vaeY
ey gnok tents...
emnains m kip wi
aided, % haat sie Pores i d x ot fe hs
ly o® baad ga yich @8 gant pete ug’ te aovtes “1s
marey Hale Sabet fou peed nll batt tending Raid funk ext
H) * eal Sahel yan wpa oF bigigan’ hag be satan
a NO petit ene
* 00 A thors, of
sone estat odoxw tr ifataie one DARE, i‘ it x si
\ebtab hart oil 9B it mo bdansta
vale al .heden baa hovivens. ‘tent “ages. wie
a ‘te .e¢k 000,084 ode wardted af atilooh way
wie atqusn of galhuooor wey soth, homed
win ww MOL ant te mot dood’
4
Counsel for the defendant malatain that the evidence
Gleariy shows “that the parties did met intend te be bound wnitil
the formal written contract had been executed." Counsel rely on
the rule as stated in the cawe of Bl Rene Grecery Co, v. jitovking,
203 Tll., 494, 501, that although a valid contract aay be made by
@orresponience, care should always be taken net te construe as an
agreement Letters whieh the parties intended only a6 a preliminary
Negotiation; that the question in such eases always is; Did the
parties “mean to contract by their correspondence, or were they
@mly settling the terms of am agreement imte which they propane te
enter after ali ite particulars were adjusted, which wae then to
be formally drawn up and by which alone they designed to be bound?"
Tt ie aloo the rule that where the parties have assenteg
te ali the terme of the contract, the more reference to a future
@ontract in writing will not negative the existence of a present
295 Tl. 423, 428; Soott v. Yowher, 227 111. 104, 108. JFurther-
More, it is a rule of general aceeptance that the contract agreed
Ohie Sout
upon ie an obligatory contrast, although it may have been woder-
stood at the time that thereafter a formal instrument should be
executed te express the agreement of the parties. Hall +. Hall,
125 Thi, 95, 101, In the ease of Scott v. Fowler, #97 Thi. 104,
the court quoted from Bishop on Contracts as follows (p. 108):
ay "If parties agree on teroe, however precive, ‘aubtect to
_ the preparation ond aporovel of a formal contract,’ the conou»
_ fenee of their wille is euspended, and where nothing further is
_ tone there is no contract. Yet the mere facet that the reduetion
ef an informal agreement, oral er written, to « formal written
: » Mag contemplated or stipulated fer does not prevent the
oe frem taking immediate effect, The question whether it
: i deer or not depends upon what the parties intended, *
The orecise question, therefore, to be determined in
| \ th @nee at bar, is whether the preponderance of the eviderice shows
t the parties intended that there should not be « binding cone
perasvan avast dat wid arteebe dauia 0 olyr oft cade wh ot,
borgel ive est dads what alsa Sambue toh ext! x02 Leased
thts soared of oF Sadak sum bth aetixeq edt tact” ewoste «f
ae yYlet Line 70 * .badaweexe svod bad FaesIaes mere
aidinode atuanb weenen® ores. ti ‘to enne oad uh, hatodn Me.
w aban ad wen deatiaes bilaw s tquodttioa bad th, hah ad
ae SE aurtdonins ae tom vegan 2, od ayant, baweste ran, 4eone bach
yussioat lene oe OH wchne banned: oakdtag ost a bin, axa n0 0 :
mie pie ped ayanta nanan sone uk noksanuy, ost? tnd. ¥
watt etew 14 Reaohaaqher ten abodd 4 tonutmes of sos
er onoceng acid sind oat chong hein. st Ye maces nth anblooone n
ot wwnela aa, sim ite (pbeteuhhe osew ere foe beta sida eh vee
*Phowsed od at pasa dash yort enodn ido Lew uw bite, . ding 3
Ddsiadsloi a a onan ter wtam ols stagyanee walt te sigan dh amd .
seeerny 6 to eaamduine odd evidagen tom tite gata dew wd
“nea +
eigos’ oft, at 100 sf 2S weeds 8 ;
~casiaw’ 805 POL . Ltt #58 sande. at 2008 sane sane
_bewrys deetsaon walt dais wanntoweue: fererne: ‘io ohert mni
Saline rnedt eyes Qo ah guest de steertaoe qrosaytise ae ,
ed hiwreda $ sooner du ati knarcgtt tee tawrreds fede ‘euid add 4
diel st the8 afe tenag aatt te tohavetye af? sertgre at b
0k it ree aan af zest Ye even ont aT Hoe ae sans :
go? destdust ,salootg sevewod et so oergs ao hte wri
axyonag ett A ytewntios Lewie’t 6 Ye: wenn ait Be nelsagere
‘eh todteu't patadon exestw haw sdabiwceae ab ot « elite:
aoltearer ofa feds soe't wren” wat 36 a
net+iax Lestse’t ad ig mente: Law she Lane
ond tapvete. Fos V9 eh “ye? sedadiet® 20
ns ene galt aaup fi
hi Sabohmanae on
at bemkeret sh od ‘ot perce a
Pai
mega: sonsbive td Le Some Tah ARR EA oil
09 ‘qathats * od tom, ures a
MC ak ne ome
ae RP ed AP en
°
tract until the forsal written centract was exseuted. ince the
defendant denies the exiuteance of a contract, the burden of en.
‘tablishing the fact that the partios did not intend te be bound
wnti2 a foresl contract was executed, is on the defenctani,
WALL ot on on Contracts, Wel. 1, seetion 24, p. 37.
In our opinion the defendant hae failed to vreve thie
fast by a preponderance of the evidence, Gn the contrary we think
that the preponderanee of the evidence oleariy shewa that the pare
thee 414 mot inten’? that there shewld be no kindling contract until
the ferme’ written contract, referred te in the serressondence, was
executes. in our opinion the preponderance of the evidenes shows
that the terme of a complete binding contract had bean agreed upon
inforasdiy, and that it was the intention of the parties merely
that these informed terms sheuld be ewhedied in s formal written
tiiree
Xt will be observed thet in the defendant's Letter of
Salary 18th the defendant dece net say that we wil) enter your
order when the contract which we will send you is axeeuted. The
defendant otates positively, witheut omy qualification, “we have
entered your order,” The defendant then states apectfically the
terns on wate: the order was ontered; and adds that the contreet
be "these features" will be sent to the plaintiff. It wild
be moter that the defendant does not say thet any additional fea
sre will be exbedtied in the sontract., The defendant only gays
“these features,” nawely the terms agreed wion, will be ome
edied in the contract to be sent to the plaintiff, As we construe
Ms lotter ef the defendant of January L2th, it was intended as a
Lee to the plaintiff that the defendant considered the plaintiff
ady bound by the terms which had been agreed won ané whieh
. ated in the defendant's letter; ond that those teres or
ures" would be embodied in a contrast to be sent to the plain«
putt soni jhetevexs Waw Fenton ste Bie faseot ott fit aw
id te aibirund ade (Pewrtitho 2 ty sonsau tee one as kiee ia
heed wd OF ‘bad tad Gon DLN un bdeny SHY ouite Hon one antodl
| + fatgeae"98 ext fe wh bedaven® exw soartuas tastes!
Eg OR ttektoe | ELOY arena no oil
pie ovoxg ee feed aah eat dndtine ra ei? wetaiee sie alll cane
Mkts ow cistiaG® ots 1G jab Pry ot? te venarvobac'sd a
“a0q ott tent wrote YkIMeLe werent ve bHE Te: "
Lheaw teatenwe gudbatd ow va bLeroate gae dy aity” medal toa
vaw ssanebaorner ter edd a2 b Berxoton , Merton edo bow |
avodia eoneb2r9 ooukst te Conareeh sone ane soin.tee ie an” he
‘weer hetge weed hak trartane: gabhard ede Lees: o te nin wild
yiewes saltisy oad 6 ROLE MOT OR ens caw $2 sett hme yh
tw ad kaw Levene a tk badkbodan ed! bitwaile’ eines s fawtdt ad wvond
Kepache eS | | | Wi
te taetot Seabee tee. ade ah sane bewxrende PREHP
tetey tetas. Alin ow dade yan, fen msob ‘thapasted asa ‘anes’ :
s8® chedwoaxe sf wey have Lite ow eohae gowrddew 60d ee ca
oved ow" ;tobteotthiasp yne dvodthe pelevisiteg wosare tiehaell
ost ublandehnens eadete nets tantiaetos gat ebro tie peat
fontIqno a sass whhe baw photstan aan Tedrp wad ioldw “sl
tLbe ¢1, AVilanietg ai? o¢ dane ed Ltbe Sewredas’s owes itd
ano aia kd thie gawk tase yam tae apok dmndas teh ate tacts ‘a
aye vino tmaban'ten AR, fegenmai ont ith iy ments a iy ns |
me ad tide noe heonya, euros ade ‘cloning “yasudast is
ier rae
meranos C hi + ¥eitated sas oe sana ee ao) dpaxsaae vatt bap hry
a Ae Rn AEA Ae ie
& ga, hadans at zow tt wok eat Xe ‘Heabuated 98 Te cen .
er a ee ea c,
Wid tghate aul batebhaags tasbastes ong ae manana wae pe
HS AWRY a
mie bas soae dooms: sod bed fiohuor sated wste, talon eg sooty
nh sh me HL Aes PC RANG Ua hb Ei
'
40 co) sean dasa baa ptestes * Fannie tab wits ak be an
a Ee OR EMRE IRE. NP eteBhy at 8 tik
phate Gib 0) tie od 0) dewiaoa » mt Seidesen ad Svar
The pleintiff's Letter of Janaary 1L°th, vhieh evidently
@rossed the defendant's Letter of the sams date, stated that “we
have bought from you" two tanksears ef 3,000 guilons each. The only
fair inferences from the phrase “we have bought*® de that the plain-
eiff considered that 14 was bownd ani that the trade was olesed,
If the defendant hed reeelvad this Letter of the plaintilr of
Jemnuary 1%th before the defendant wrote the Letter ef January 12th
Whieh crossed the plaintiff's Lettor, 4t may be that the defendant
Would have eaid nothing im ite Letter of January 12th in reference
te a formal contract. Notwithatanding the reference to the formal
@ontract in the defendant's letter of Janusry 12th, we are of the
Opinion that the letters of the portios of Jonusry Lath were aul'-
ficient to bind beth parties mutually by an obligatory contract,
ahd thet the parties so understood an’ inteméed, The vorrespondence
féllowing these two letters strenghhone our cinclusion., in ite
Letter of January 14th the plainticr ures thin language: “We have
yours of the 12th confirming the trade." In ite lotter of Janyorty
istn the plaintiff refers te the elive cil "which te have purchased
Mr you." In ite letter of January 1th the pleintiff sald, “we
competes the purchase on the bagis of this eanuple." In ites letter
of January 22nd the defendant uses tie lenguage: “we are still
hopeful that you may find the last sauple of of1 submitted te you
ou table for your purpose, wd shell we glad te fill your erder
on that o11 on She terme indicated, provided you can give ue tie
ore within the next few days.“ The phrase “om the terms indi-
* 4id not refer to the fermal contract, for that eoutract had
y been executed. The parase, whieh will adult of but ome reaeone
conetruction, meant the terms agreed upon in the letters of
22th. It +111 thus be seen that the Aefendant recegnized
. the terme had been agreed upon and thet the defendant did not
tend that the letters of January 12th should be considered as
Vis cia t9 iy Brew AFR i vienna’ ‘te totted tice ode yen ical 3
aite® ods Reet adm dah eae ead te toated of soennetod ase .
gine wat 08 amoling 900,8 ‘to exuai tant ows id wort ‘hae
atthe le on todd as Parigued ovasi ow? senrdty astd won't ‘sonexeta! th
shoxele sav vot ‘pad dadd bom Banad gue th “tants ‘boxes fenod
“to Wi toate se we ‘te ‘nosdet a bid how tooad hos ‘as antiob wld
“dts Bf euewtet ‘to tod def ‘oni otouw tashao tod ‘etd oxoted mani ie
fanbae ted eda tase od van si t0edtod at rthvada tq oad haednee ity 9. A
poner tet mh A805 vtaumat to: tosjet one ak aaldton bee. ‘wrmd | i
knot? esi ee ‘eoanae tor ante gabon nts iwt ox” ‘ deetbaee faa
at “ro one ow dick veowant ‘te cotoed a tnabiceteb “eae at ‘jou #7 it
“tee exe wm eta to co himag oar ‘to axsstet ostt sat wi
“steerdaes: ‘resayt ite 2h A ‘ehtendwa avletag died paid 6@ ay
sonmsnaquor ios oat soni tak bne hoot wtsh cay ‘on ‘eo Lheae ie Hh daald iy |
: ean wk weed tau lo ase we ene ttdgierts sisttek ‘at vonoiit with wo .
ova oe bogairynad £ift baci Tittatate ead ages wetasceat ‘te 4 ii
‘iawn te wedded at) x # hank ods “pakentinae “gs acle toe
benesiarns orsd ow i tae tte ite’ est? w srotoe porriare ng oad i
HE Se URRY ea
hay! Ve
wosto i ‘atl at * elqumn white Ye stead ony ‘3 ‘6
vise exe on" reyennnet whe ass ‘yaiehoo'tos ay bate’
wey ‘a bade Loniee lie to efqoes deal sad bal elt Hoy ‘shut
xobi9 nay Eiht ot hess, ow teste ol 98 Garett my teh
eid v8 avty asa FOX bebivere . obets yh} ‘amtad oath be the 3 .
| «thal sated oid m0” sanustg ent ad wt al eds aan oo
dos Peacdaon tee ut “Apart soo tesco eal eo cota ‘yb iad af
7 ode bo ‘tt paiihee ae ot ead
-n9eaet 80 tied te hha, tite aes balacuas
hindi im . ay ie Ha - i i
toa pe dash nia ont fase | ane. ‘sou beans 88
‘ ig re ee Cee ae 4 te) aid Ae ae mi} Des
ow ‘deuebznnve ot > tone aris eran, te wrestet oath, destt
; PM gal Sp aR BS Pinan: Pet ne! a MS ATS alin idl Lalla as
1
only preliminary negotiations, and that there should be me binds
fing contract witil « formal centract wae executed.
Cournees) fer the defendant ecphasize the importance
of the following statement contzined in the plaintiff's Letter
of Jenuary 14th; “you fom't mention seme of the features in the
Reheat as noted in ovr confirmation of the 12th, but we preaume
full details Will be mentioned in final contraet which you sny
Will be cent to us vory aoon,* Counsel for the defondant maintain
thet this lenguege of the plaintiff elearly indicates that the
plaintisr recognised that there shoul’ be no binding sontraet until
the formal written vontract was executed. When taken in connec
ton with all of the correspondences, we think that the language
Pearonsably Pill not benr the intersretation that counsel cive te
tt. Furthercsere, we think that when considered independently ef
‘the other ecorresondence the Language ie not auseeptible of the
Mpatruct ion that counsel fer the defendant place on it. Tt wil}
we hoted that Just preeeding this language the plaint4sf has etated,
re Rave yours ef the 18th confirming the trade which we made with
zou." Im other words, when the plaintiff uses the phrase, “the
trade whieh we have mate," it is evident that the plaintiff cone
be that the trade was elosed. Moreover, in the Language ree
£06 on by counsel for the defendant it whll be ebserved that tha
Hater refers te two contracts, + "the contract as noted in our
eRfirmation ef the 12th," and the “final contract" that the dee
a iy was to send to the plaintiff, im referring te the contract
. “Leth ‘the plaintirr expresely aimites that there was a con-
ract elready in existence, indeyentently of the final contract
) the defendant wae to mend; end there in nothing im the lane
age in contreversy in the letter of Jonuary 14th which would
nt ty the inference that the plaintiff did net consider the cene
c ‘Fererre te af the contract of Jnnuary 12th as a binding
If the plaintiff had not regarded itself as bound hy
ebuild om.ed, tives e¢ede toads haw Atte tat toges b cenarigrt
vine ae ve ehetyaona saw toatdaes fagret » Lhe me) doartioe:
.y Pomartieogat oft . om haa siqg ne Fanbhsiates ost cyt, Comomed
,e teteed aYahtataka we mt benbatwen. torendets.sabbhtin. tah
ea} och estytoet of to save. seldaom o moh. woy®: TARE. ¢ %
ocueety ov tut .aeoS edd. te weldartiitges, tee ab heaton, Re.
qe wey catie feanenoe fealt ml banetingm od, dite aktatoh
aiatates tnasce teh ont aot Lonard." moon wy ay OF tana od,
fihd felt aeteo tha ylvaele Vittatata off te agemgaet pte) tad
Ligau toatines yathatd om.ed hAworln pundd dent bowiayovet, dakad
AG ENGD gt feat eee abo tquent gay deatiaoe, aety Aaw $ ‘
_ @aeygoet ant tedt Mahe. ow Ronehancagr tag os¢ te Lis, thine v0}
ot ayia Lonmuos tadt moliatorerp inl 9st toed tom Like vsdody
_ 3e ghtoatasqedst bowed temos aoaly tacit Matas oy ororedine
aie la ofst ¢quqeus tos wh eyanniat od7 eonehagqnoyeas 4
Ake #t oth no peek Osta baem teh eat set, fearon ua ;
i it
“008 yitdmtale oat tant taeblve ot " oben meiee sie vi
“9% : ogaugned oid at os “stanate aow ohand ett east
Pa
—o. ak baton ae tustanog oatg “ vatsertase oe of
“0 oslt basis Mtoactnce Anan ott Ia baat ont te
“teonttse tant avid ae ¢tbconan cabad vom taxe, a
gs ind ME BRD RGA
sual eshi a withisson ‘ea ests ‘han, phnoa ot ‘nae da anh rete sid
bivow ito ket aioe ‘exam’ to totgoe ons at opto
Me a le Cre
“00 ry) ‘aabionoo von ih Tebsalate bad’ done “aoranent tnd ee
Babich cgabnh Mah aie ita ‘
“fguitnaa a 96 98 cranao’ r “feachans aad ae of bo
‘yi Steaua Ne Pir tors
ue hawod aa ‘YLeath Rebragex Jom bast Vubd ate eda
the contract designated «xs the contract of January 12th and had
deemed the “features" that the defendant failed to mention of such
importance as to necessitate another contract, it is probable that
the plaintiff would nave stated explicitly in the letter of January
14th that since the defeniant failed to mention "the features” the
Plaintiff was releseed from the contract of Tenuary 12th, and that
the negotiations would be re-opened penting the reeeint of the final
gontract. Apparently, however, the plaintiff did met cenelder the
@aitted features of sufficient importance to require further nego-
tiatione, an4 seened willing to abide by the contract of January
12th, whether the formal contract contained "the features” or not.
Counsel fer the defendant further ccutend that smong
the dealers in olive cil which is imported from abroad, a general
custom existed of executing formal contracts in all transactions
fer the sale of the ofl; and eounsel argue that in view of this
cust om it is a reseonable preaumption that the parties did not in«
tend that there should be « binding contract umtil the fermal con-
tract Was executed.
a . the only evidence of euch « custom wae the testimony
aay é
of Suddard, whe testified on behalf of the defendant. His testi-
@eny, which was very brief, is ce follows:
"Q. Are you sequainted with the gustom of the dealers in
ve ofl for importere from abrenad vith resnect te the exeew-
tien hg Reema written contract covering sales made by them?
aa: &. tT ask you if yeu are sequainted with that. Ie that a
- ong custom in the trade? Ie there or ie there not a zeneral
@ im the trade concerning such execution?
Ye Objection made an? overeruled.
: 4 A. There is.
Q. What ie the general custom, Wr. Suddard?
A. The general custoe iv to prepare and submit fer signa.
‘ture a formal contract, particularly im imported coo¢e, which
‘Provides for mony things, risk of nen, export duties «-,*
The rule in regerd to the preef of « custom in reference
which a contract has bean executed, is stated in the cane of,
ei. 25 ILL. 517, as follews (p. 521):
~ hal Bete eS — te teats, emt, baseparie
Vi . |
ay
Pewt bine pide rCeehsata te toarton oat hott roel wi
tant? wed’ Ye tetves add warbhiwe irate Wie viet pesgene
; oobi gated t wie oe me ne ty oan d nh Be Perbl e' wasnt
Spee to tdarénes sf ca ebive oF gatriw’ ‘Veones" be aval : |
Fon Xs “nerudent sie” heWhedhos ‘tomnteme ‘hak a Cid Sule re
givens denis bnotigas aacident shahve'tod of? Yor’ Lennted |
iwsnsiey a sheer sort ‘nedvognh’ & wk sie tite’ £ ry evice ‘dd my
“emehesaanatd tte at esoactnen toate’ andtuoene’ te | he as ai
) PAS agi hy,
“whale ‘to woly ry badd ‘supe ‘kouaseg ome Hite ‘ode te tae end
sth be ;
eae
ont ton f ke aolome odo ren no Lsqrooene ‘eftaneseos a ry cy
~ fs i wl err
“n108 aso? ot Lida sonrsnos ampbaas ot ‘bhvents mat te .
; rd ee es Ml Ldn i)
ye Es
~ttase om, “sanenawted aad te ‘niet ny, ‘bepieves pone
“tape? HM, nt s tela, qtey, war So late.
Q ae wrocass walt te. entaws: gat cttw REIAE SD He's :
agenda eat od dhedean Hite Becta matt wife)
ome st Xd shew ageing gabreven . toatinag wrens us r wolt
a tant oft stadt? age Satitlagwas ota Rs ant
“eteim » ton weet al ha eeane ans onees Yue { ono £
ante bcc hh eerie re as eae
Stu Thrsbtwe oh eek totoneg cand ab ts
aust ie 19% tlovue sorepnt ant Model Fie seas
‘do Ley, wioay ‘beat
Mie~ ae tte: Digit Moti ae “sank vane
‘*
“The proper offiee of a eustem or usage in business ie te
gacertain and explain the intent ef the parties, and it cannet
be in opposition to any principle of general policy, nor ine
gonsistent with the terms of the agreemmt between the par~
ties, or ageainst the establigned principles of law, oe Ban
sides all, it must be generally known and ¢atablished, and se
well settled an’ #2 wniformly acte’ upon ae to reise a fair
presusption that it waa knows te both contracting parties, and
that they eentracte4 in reference to it, md in conformity
with it.
To that sage effect are the following camer: Cleveland,
a innati, Chicago & St. Louis Ry. Co. v. Jenkins, 174 Til. 3e8,
“407; Wiscn ve Bawan, > Thl. 493; Jones v. Vickers, 173 Jil. App.
4a, 494, 485; Klaub ¥, Yokoun, 16 121. app. 434, 438, 430; Supe
la t » 7 T1l, App. 228, 232; Sweet v. Leach, 6 I11, App.
‘aa, a4.
In our opinion the tesatimeny of Suddard wae whelly
Tieilent to establish the custom contended fax by seunsel for
he defendant. Our gonelusion is net beaed of the fact that the
' % attempted te prove the custom by one witness alone,
y ya the courts of Dilinois have held that a oustem cannot be
. by a single witness. Eisuell v. Ryan, supra, (p. 822);
Lv. Oni onge & Rorthwestern Ry, €9., 183 112, Apr. 169, 193;
Cerrei2, 293 121, App. 309, 318; Adam Groth & Co, v. Goss
i, 932 TLL. Apr. 480, 454, In other furisdietions, however,
has been held that one witnese ie eufficient, Vail v. Riee, 3
H. Y. (2 Berton) 155, 158; Rorineon vy. wmited States, 15 Wall (1.5,)
q , 366; Jonen v. Hoey, 178 kanes. S3R, 587; in re Eeiste of Jones,
j 41 Te, 615, 619; Penland vy. Ingle, 138 8. C. 456, 457; Partriage vy.
SRESYtR, 99 Alo. 200, 205; Southwest Virginis wh Co. v. Chase
‘Va. 60, 57; 2 Wignore, vee. 2055, p. 2742 (et ed.); 17 Corpue
62% &
®, Sec, $2, Pp. 524, Our conclusion is based on the fact that
- knewn and well settled and se wuiformiy acted upon as te
‘S fair preswmption that it was known to both contracting
ok md that they contracted in reference to it and in confornit;
os «2 ceeclenwd of eget to werene co te ent the seqond eH hi
# iti io 2 haw ,anteaeg oy te daetat od? aie lexe bos oletioons ©
Ome ton yokloy Lapin Yo wey tonira yaa bd meted ‘at ed :
~a0q 943 asawied ¢mmoatys eft Lo eset add sy hw dance lon
' oh mee wel to mtg honing tele ids soe' wid aemke ge tg Ow
on bem ,bodeliiatas bas omaad yiiersaey of taum 32 -tta meds
“tbat welet of we mag ator yieerotiay ow haw by [eer
‘bom ,soifteq waitoantiaen dtod a swoak aaw th dang aot S$ ernre
ae ieiearieiatela mt tite (OL oF enero lon ne he teaernes 4 ree ed
wie Fae ie
shaiere 62 s3eae0 gabeottor ‘ent ats. teats onae te ot
(98 £12 are ramuaeeh 22400 BSE OS, 22, Ranga
on a) Bes sexetott Hee, Nts 8. Sm ye
“hd, ie fF fr a Gh tik OL, song damit 5%
0h LSE? Signed aX toaye jABU 1888. ah. fe ans
ed f ’ / le eu
Pe eT A WAN
‘y Av Pet eae ¢
ios 9 new y baabbas to a wouiteet edt wolatge we ial
na a wee ey
“tw 8 Jonaxoo w <0? bobasduce ‘aio t08 one sa Lisasay,
Mea | var
out Sout ton, euit to amend steel ah dafsuioase tH, .
i" iP de So re “
‘yonade sews te oie ed aoseso ods ovore: of ‘betonttn
Reap a Ae
of soni torneo * sass Adeal vad bom 29 aden ea
(esa a) wae meet? bee Lyte
perg eis oA fil fOL ,.89 .vh ote ten wieto)
ance .v 00 5 MtoeD meha pee , ‘Whe “nek ay
,tarvowod janoldothe tert codga AT Mk ORB .omk tet eee |
@ .pedtl ww hav odie ko kee ek obamt hw it swntd” hee aad
(8-4) aie te Rega am pantdos biti
ah, (898 toa sna eer,
: | oe >
asgred TL iC be fet) cos “ “8008 98, ornare oC 0
sant , teat! ony he bone: at: morserigoe, we tel ser 8
OK eye pRYEIN?!
shore watbiio "ane acane reinstd woah? tia’ aogh. btahowd Lo yoowss
gana lo halve ahmed eat aaah oh, bebaesance omg sat
ebhowotwon at bus $2 of iui at pep yout rau pais eotts
14
with it.
Over the objection of the plaintiff the court admitted
evidence offered by the defendant concerning the mistake thet was
made by the defendant as to the sample of of3 submitted to the
plaintifr,
Gounsel for the defendant in their brie! atate the
purpose for which the evidence wae introduced an Sollows;
"The deferidant has at no time in thie action urged the
matter of this mistake as a defense to the action under that
head of the law. The evidence was offered for the purpose of
showing that the sample subsitied te Armour 4 Gompany by lir.
Weinshenk on January 4, 1924, was net in fact olive of] known
te the trade as ‘commercial olive o11 denatured and neutralized
with acidity not exeeeding two per cent,' but rather o11 known
as ‘pure commercial olive oil with secidity net exceeding five
per cent;' that i, L. Barrett & Company subsitted said sauple
of elive o11 woon January 4, 1924, honestly, whether negligently
or not, believing thie oil to have been olive o11 of the former
description and so believed it to be during ali dealings and
negotiations down to the discevery of the minteke made by lr.
Weinshenk Jonuary 15, 1994; that Armour 4 Company knew the same
Sample to be ‘pure commercial olive of1 with seidity not to ex-
ceed five per cent.' This being true throughout all the deale
-inge here in controversy, there had been no meeting of the minds
upen the very subject matter of the contract, the one dealing
With respect te olive oil deseribed se ‘eomeercial olive oil
denatured and neutralised with acidity net to exeeed two per
cent,’ the other dealing with reepeet te a ‘pure commercial
Olive of1 with acidity net te exceed five per cent.' Gueh being
the case, it is elementary no contract was coneummated,”
There is no evidence whatever that at the tine that
the plaintiff contracted for the ourekase of the cil, the plaintiff
knew that the defendant had made a wietake in the eumple of the
ot, Asouming, therefore, fer the wake of argument, that the evi~
dence introduced by the defendant im regard to the mistake made by
the defendant wae admissible, the evidence does net justify the
@¢ contended for by counee] for the defendant, that “there
he been no meeting of the minde upon the very subject matter of
he contract.”
| tm regard to the contention of counsel fer the 4efend-
1% that there was no memorandym in writing sufficient to satisfy
hat Section of the Unifor= Sales Act known ap the Statute of
a ee et
tan as
“wa en" ee teabiew’ tke to y Teas at oF co howto at 6
yr ss ra eer a : ne
Psy odnde kd hed ‘thot nl timo as al rot tonne
tawes tot aa heowbow at sew somblve ont ao tbe Peng
‘eatt® '
te th
aay Lon
pong ;
act bogey no ites aiae “ne uid ‘on ‘he aan spb8'teb
. sed eho Taine sl Od QweeTOh @ en
Xo srogtwg aad ‘Tat hezaYto saw ponablive ea We
ed Be Ystogmed & tweed of best Lodge ‘eae
owen fo avilo font at von saw ,dReL S ‘erty oa
hoxifewtuen Sat tevusges@h Lho orbio ieloteusea! ne oh
mreak tle spdtex ted ',Joen tow owt gaibeooxe toa rp Hy
avit gnlbeeexs fon qiiblea dtiw Lhe evilte falotemage 6
eiquar bles bets kofve yangand A sortall .f .M sads Frog 184
eee rl i
oh cg
pr binge oy gee tra a? began tage Ltn fie ie a
Tarek ait To Lho sy od ® r 5
as syxttohh tip gurkun sit th sivesiog ob yewsy
d obsm gintaln edt ‘e : sexe om th 3. gig ob aasiandoe OOS
er veut yoacmed & “tomtaA Saclt raoee el einen’ roe 7
“xe of dom ytibliog dtiw Lfo eviia fadnzesiaas omg’. od at
efowh e413 [La tuotnwexd? quad anied lat toes «8 seston ps
shate alt ‘te anifoew am mood bat oandé, val tien
gallash ato aft ,foexsaeo act To aiken
fio eile faloveummo'.as bedixsoeh Lio — coe pe
yo ore heooxe fi gee tena spit mihi
Psermee, ewe # oF. dooqacs saat og
Baler cioesh '.#neo teq ovlt Besoke of Yon Sant Bloa aly a:
0 *, betecmuango kaw Poant ey em Yes oo mmfe ad th ten a
Sod! gahd off dm fea? aevedosiv sonphive om of ose?
Tre wdeke evid ,Lho ose To seadwriree orld CO? hoToantaed’ witemtety
“ptt: MO PLqmaw ont md eededa a phon Sat # meine eR’ Oxy) taate im |
_mdee) om? tet (toomm te Ve exes ext vet (ecateced’d pine a
gd phew aderika ed? of huayew at Prbhanteb eis) et bnseborted sy
(\) Rat 'teteek oa eoeh wnamhive ont jettles tube ase dail a
reds" fac ,whartoh oe aot seacareo” yo 481 hedkodaoa’ wend tet |
Xe abdten tookdve ror oat moqw ebutit oie Le yattoom oa ano
* heen, We * el Y
Pea Sama ee Nia aS Bie i ib 5) ee
*
(ont Bete Pr
aha toh sHt aot Lediwen Ye hdd nade bad od” banget a 7
bY bin fi i WR es rie og
“yahran o¢ td to LT tee weit dew ‘at ‘iat pa ay at sa vai ms
Ra LenS e bs eh eae
ne Adudad® otf ad awoatt ged ‘adhe gs Ws skeen"
ot suomi oh betqaeioecen ya i (nl woke
i ae
ude, it may be said that from the views we have already ex
er on the question whether the parties entered inte en nbiie
t ry contract by their lettere, it fellows thet in eur epinien
er was a sufficient memorandum in writing vithin the meaning
the Statute of Frauds.
if Por the reasone state’, the Judgment of the trial
is reversed, with « finding of facts; and Judiement will be
te in this court in fever of the plaintiff in the swa of
236.
JUOGHENT REVERSED YITM Pinos OF Facts
AND JYDOGURENT RETENED KERB.
hy, P. Jom ond Matchett, J,, concur.
De
he
” ogi ee hora poi ont sate. eho “a
bepiiidh . a tet ta thy aennsitt hesit
ag Gln My 5 a Rieahy eM
tase 4 ott 2 o tm hah oneal
Woe At 8 Ae
ag SOY ke has. jason 9
oe ak
baal ah afk, eae cena
ae io pi da eee!
i Se a. pe pies @
aw PPh See ee Wath 5 eae ea kG hk: Neh Ove
oe oe Sew yee Pw hae ie awe Aha pe asin, aay ee. i *
ely Sie Te meee cs Ae Bae tee
Pe Nes i ea a OOM ga ae a8 Pinteng ah ee
Sete g ROE wake oe any yoy ae eli Way, Oe
hah Hon Lin works at hen eae a
* gays a , 4 % 2 !
ee Renney tere
jet & a Sy as Rh MUR i" A
pecs Re Vn My Ma ¥ se TRY, Bad
;
4 HDrgse avian ta ete Ui apa
SP pki ie hee Nene oe ht
big ge Eth: RE) Ses Te HORE RS ee, lal scree
UPd he: quit Shh aa oe) He ee ee ae egy yal
See Wah ‘Bin arn? a BN a ote hah RR i cian ty ag vie eslh
aioe ot ek: i one Oe TTT, eke Peter, oie .
a UH Sit sea Ae aR, MmeN A geal A Ma a ae eee! yt ssivhaude
ee ee ae ae eet a ak at a 2 yi i ae ois ne e
ee Ste 4 re ee ha ee 2k a MBE A” May’ “pi ‘bono d meal:
hie yet ae emt tore Reg ih! wee BAER eth ery Loum vit ona
Sx
wiimetink ae veh Lewteiieh Reh aiZd is
va wee ROY sil hth ig ar ‘nitabt i we te
Wa
\
ies li
Fy a iat ena ia a
84 - 32177 FINDING OF Facrs,
We find as facte that the plaintiff and the deren dant
i into © written contract whereby the defendant agreed to
ané deliver to the plaintiff 16,000 galione of olive oil
ir February, 1924, and March, 1924, shipments from Spain at
4 per galion f. o. b. Mew York, terms net eash agninet bill
lading; that the defendant wrongfully refueed te deliver any
f the e411; that the plaintiff purchased 611 in the open market
repinee the of1 sold to it by the defendant; that the plaine
fi Was obliged to pay for the ofl purchased in the open market
62 1.60 in excess of the amount whioh the plaintiff would have
‘ if the defendant had performed its contract,
Dest a PAM ae OG A ae TNs ee Tt ai Be i ea e :
RA mer ay Uo PRN I Ue Sn BY AP ae eA fA Ban ee ie ey a iia Hy Wh sb ii
‘7 Proae ee Omree 2 RR RS
sep voted eet, baw wnentase | ot ast “agen ae 5 Dad ov
bey ee “hin at Myaey
6d hoor tnabae'tos est fe x9 te roarsnog Basten a otal
jks kaki %
‘ it ey ant, ; eoaild ease £ sdagatt & bas “er
Mgt
£hte fentogs hang ton hy chi vine wot d oe A “mest m :
yoe eerifah of boewter widetaaotw Prabaered ‘ault tand 4
tates seq9 ane, at Ate Ponateseg Titatale ent sat a
«niete edt pai {Pansies ot ‘we eh of bLoa flo alt eae
deuxem wage ott at hoseadouwe fie ea bladed yaa oe boatido: we
aved hisgow Vitdelaty ome we dde! tawome wate te mae 9
-toartane at bearolieg bad tenbentet nas ‘th
AEN nu
ite Me :
DER Tene ETE Pore ao TINUE en ae A) eae IRMA PA ROL LAD Ps Encl yay OT DU RSP alk nen OTP
68 ~ 31192
BICHOLAS BOXER,
Defendant in Error,
ERROR TO CIRCUIT count
ve,
MARY MOSER, CHARLES REINHARDT
and SLIZABETH REINHARDT,
Plaintiffe in “rror,
OF COOK COmITT.
a
ER, JUSTICE JOUNSTOR MULIVERED THE OPINION OF THR ComRT,
This is a writ of errer prosecuted by Mary Moser,
Charles Reinhardt and hie wife, Lisabeth Kelnherdt, the defond-
mits, in a suit in equity brought by Hicholas Moser, the comp) ain-
ant, ageinet the defendants. Thies writ of error is consolidated
for hearing with an appeal, He. 31500, prosecuted by Charles Kein-
hharat and his wife, in the same euit in wheich Aicholas Moser was
‘the complainant.
The bill of complaint alleges that the compl sinant
and the sdtenaunt Mary Koser were married May 26, 19%, and lived
together until sbout September 24, 1921, when Mary Mover deserted
a that subsequently, shout September 27, 1992, she filed o
pina of 4ivoree againet the complainant; that as a consideration
of the marrisge it was expresely agreed that the compl ainont
“should have a one-half interest in the atock of morchandige,
ktures, goed will and prefite in a grecery store and delicatessen
7 a eted by Mary Moser; that the business had been purchased fer
out $2000 and wae located at Ho. 8402 South Ashiand avenue, &
reet in Chicago, Tllinois; that prior to the purchase ef the
Md business Mery Moser had conducted a grocery store and
Aieatessen at Leflin and Sind streets in Chicago; that on
Posseant on of end buciness at No, $402 South Ashland
re ne » Mary Moser ewes her father pent $700 whieh she had
le pte
ae MERON Baw
tera a tana
TIO LTNVQKEG OT MoRA- f° | eae
~bew'teh tudt <tivabitat net ithodnnd £8 «thw wie view! eal
“ite rtemoe wet THeOi ana tt cd dtgvord vi tups ‘ad Viws's a i
sedhitronwed: ef none te + aw eke “ nanebao teh ont yi - “a :
antes worst of hotioeaex ,008LE vot ,Leegan he iis tw gataandd %
enw sere ea kedn 2% ito Ralw’ ma thane ovige ‘ous al ote We ro i ws
? tua Sa 4
“ tawate iqaos ad tad eoye ite nko Lavion te Lhe ont , |
avis fy exe ORBL 4 So yak be trtem one waaM b Soa tnataoren 4
totumeah to ot yea ne ste thet , ae zoddren tant two ftom
@ LORRY oats fer , ve rodaed que teste “eetanupendue bones
aoltazeh te age m so dass 1 Hire Lae Lomo ent tentoge aovowts to
dae i inion fetal dasit dowrys keene raw 7) onote tam aft a
Sokhaatorem to tooin ode at ‘faotedak 7 Laon & erat on
moanedeo ties hae wrens Prue » wh ad tong ‘hase tbe 903 | e
<9? boaacto'sig amed fel ewanlend eit todd itenom went ie |
a oun bime Selma dda ee Gone all te boamook ow goose
std Lo saaciorre edt of tobtq sods ‘yatomigst soueo ty mt o
bee etate Ytenoty » bedowbaoo ‘bel xoeet yuit one
no tact oyna tt a ageutae base me ‘aboted tos
DaeLHea Mnee LORE «oH te canstows one {to mo nomen
bat erin io ste ore sods todtar oH bow
Be Be hie a
one te noite snaderirg wate to oe an beau od 08 ate an
business which she had conducted at Laflin and Sind streets; that
prier to his morriage to Mary Moser the complainant hed given her
approximately $650, and that about the date of the marriage he gave
her $50 additional; that the $700 wae given to her in trust with the
agreement that it was te be invested in the buginess at Ho, 5402
Seuth Ashland evenue, which was to be Jointly owned and conducted
by Mary Moser and the complainant; that from the marriage until
@bout Aucst 26, 1920, the complainant gave Mary Moser sums of
money amounting approximately to 9496, lese living expenses, which
Were deducted; that these sume were given te Mary Moser by the
@emplninant in trust, with the agreement that they were te be ine
vested in the business confucted at Ne, 53402 Bouth Ashland avenue,
Which was jointly owned by the complainant and Mary Moser; that |
Shout August 26, 1920, the compisinant quit hie cecupation, which
Was that of a baker, and went to work in the store at Ho. 8402
South Ashland avenue, and gave all of his time and services to the
Business; that at the time he wae making $40 o week as o baker; that
he continued te work in the store at #9, 6402 South Ashlend avenve
wntil he was forcibly ejected under a writ ef injunction; that
through the efforts of the complainant the business was greatly
imerensed and sleo the mount of stock and merchandise; that the
Met profits of the business amounted to abeut $100 te $150 a week,
all of which, except small eume for actual necessities, were taken
Poerernion of by Mery Mover; that on the date that the compl oinant
was ejeetet, the business with the steck was reasonably worth
‘$2000 and that it ie now worth $1560; that Mary Moser deporited all
of the profits of the business in various banks, some of the de-
Posite being made in her married name and some in her name bet'ore
f Marriage te the complainant, and some in the name of her child
fomser marriage; that Mary Moser now holds unlowfully large
ef money in which the complainant claims on interest, and fer
z
hy
\
he be
i, We ee
a ee
dant potworte bat! bas abltad de bedtoehnoe beet ode de ldw sani: '
ten cwriy be focnlelepwo el? toeod vial ] oad tent cl OF
oven od epelrtam odd ‘te eteh etd swords Sask Base oad ylodamds
ent avin Cerxt af vor of nev ly saw eore. ond darts ttenot3tDhe ba “
ROMG .oH de eeominad of? ak heteavat og. ty a ew a
betourbmos hae honwa vitalet od of naw xo lew eo nadine
these oye baton as? mpa't dadt pooentelawoo oft baa toned van
to aie towne yee ony Peoato Cqatew off (Ot (Oe Feed ®
she Refer seanne ges anivlt sant yO0bE of Vie tankaoragn pak tonrome
esa ww won Gil ye we anv otew. anne ened taut Dy ohh
ati ad of eta wast? teuit #nemw ergs ort Hit bw anued ak tran F
peicihey btn kel tae od SNR sok de begoahaen aavatent oud a
tat jens old err dashes faim athe, fquoe edit ww heawe catatet,
ci habe He ltaqusoo eka tug tant Lge este ,oeee oe sauasd ,
esa 0% ga exote asld ah dtow of teew bao toed a ‘te ‘dashe oi
edt of asolytos Pon out? etd te Lie aveg see suite aa ddaa. '
Pacis premad a 8s soow a ons galas aa out outs ent te tons saad
comet ver hive Laisa Assos LOS 0 te ‘exote ait ah snow of ‘sown
gusts po dso rusted ‘te ie ‘hod ar hososte eidtowe® saw ont
r iy
teow aes man mbied oats dun ms Lqinno add te aszorts ‘at
ss ae
ett tads ‘yen Thaaioweat betes stooge te teem ‘one onie ham
tind ore yanks hnwoden Lontna ro't aur Lan senexe fates
Ny bin at
ih acht ‘e ovata | waned euoltey at wsentan aa: ‘so ao
Bea) ae "gal Wine ay i
oO haul reac “inal ooh ou08. baw onas + he brane teal one at ota Pri
eh sai LL
which Mary Morer refuses to seecunt,
That om January 10, 1992, Mory Mover ¢laniesed the
diverce suit which she hed brought agsinat the complainant, and
on the same date gold the businers at S402 South Ashlan4? avenue
te the defendants Charles and “liszsbeth Reinhardt for an elieged
@oneideration of $800; that the Kelshardts ere holding possession
and claiming ownership of the business, knowing the facts and
@ireumstances regarding the ourchase of the businesa by the come
Plsinant and Mary Moser; that at the time of the sale the come
Plainant was possessed of a one-helf interest in the business ae
owner; that the sale was Fraudvlent in equity ond vold; that Kary
Moser had no lawful right te sell or dicpose of the tusinesa; that
Mary Koser alone received the beneTita of the gale and that the
sale was a fraud om the nart of 211 of the defendante as ageinet
the complainent; that by reason ef the large omount of partnership
funds approximately #rise converted to her ane by Bary Moser, te-
gether with the value of the business, ogtimated at $2000, the
eomplainant Claims that on a true ond just aceourting he will be
entities te the exclusive evnership and peexension of the busi-
The eomplainant prayed fer an injunction without netice
o bons restraining the Keinhardte from seliing er disposing of the
98 and also asked for tne appcintment ef « receiver,
The complainant aleo prayed that we accounting be had
| t of the partnership bueinese; that the partnership between
| and Mary Moser be dissolved; that the sale to the Reinhardts be
to be fraudulent and void; that the compiainant be declared
the sole owner of the partnership business; that the defendants
reed to pay the complainant what, if anything, should appear te
him on an accounting; that the complainant ts ready and willie
offers to pay the defrndants what; if anything, shall appear
, etagonaa of esa tes, con olk nai ti
odd Dans tam ds reaall peel SNL OL yeeuAey ag tant | r, |
be ,troadetqaes off, Qonkega , Atanas he eat Hoty, tion
auneta Ena dsind deyek SOR dix enentend ont bLoa efah sape
ego thie an t0'h. Serortiates! sitederii® Ban inn Seca 080 ehaaeahenn
Cekercoasog arlkind ose adpiainlel ocd gamd (0088 te gobs
Dm ataet war yabwem .gniataud eh te aheereswo. boi ke |
~ten ait yd aesalend acd che aeedetie off gakbee get eoonnd owe |
amoe eat oiee edd te ants ad? ge tact prose yw peed |
ea nassiond ait at daovedal “ifecd~omen tn hoenensed aawit nu
qted Gould phhov haw yokupe ah Sam torhuwet mae mbem welt dese en .
tale qesediand eff Xo eceqeth te Lem of aofgit uted om iad om
ett Jasit ban o£09 off Le ot Roasd molt hevtoney male & Dom x
fealege aa adushavteh eu lo fi 3e deem aot mo heat? « sew
qidaceatied ‘be foros opal 98h lo nommet ue ten? uae
wed tone ae et ey ted 92 bedrewome ores Undomteataan
yy oe orga O0GG8 Se bodaati ae ree mtond eff to ontat edt righe
of Lhiw act gadtoreoon tant bar out 9 mo tad aeleto tncnke tam
~kapd oid ‘10 motacenoag has qbinroawe avtentens, ait ot hese
@o Lavy stares ew aeliewmtal aa so) beget dmeatakamae om, “en onal
eat Yo griwoqe th te pobiten. swtt athtadntod ant Babatersaee ;
torlenet » Te tue mteggn gat RO, porias wea a ee
pad od giuakd apovem te: aves beyeng oath snnn iene one,
mawvied ghivioutiag wild tad? ponoakend qidemond
ad adbtoindad edt vb ofee oct tude phevheeadh od on oi exit
| petalesb ed tnontsquon rit dove qhtew hae ta Listers od Of
Biuabaetes od dade qoesatnes Gllwreciteg odd 26 ‘omen Low *
of sonata: biworin ypaisttyne ‘is yade tnnacta Leis ste
4
| te be due them on an accounting.
| Service of summons wae obtained on the Reirhardts, but
Vary Moser wae not found.
On January 78, 1922, the Chancellor granted an infunee
tiem against the Reinhardte without meotice on( without bend in age
Gordance with the prayer of the bill; and appointed » reasiver, On
| January 31, i922, the Reifharate Pilea a petition praying that the
| Safumction be dissolved and that the order appointing the receiver
| be vacoted. The Chaneslior vacated the order appolsting the ree
| cotver upon the Reinhardts filing an indemnifying bond.
The Heinhardte flied an anawer to the oomplainunt 's
| baba, in which they denied si) of the material allegations of the
| BhL1, with the exeeption of the marriage of the complainant, Mary
Koser; and alleged thet they were the true and lawful ceners ef the
| business, On becenber 16, 1922, Kary Moser entered her appearance.
On December 18, 1922, the cavse was referred to a Master te ascer-
tain the interest, if any, of the eooplainant in the business; amd
to Aetermine whether the Relnhet4ts had knowledme of suet interest,
| if any, at the time that they purchased the business.
| On Decenher 19, i992, Wary Moeer filed an snewer to the
| viii, in which she admitted that she and the complainant had been
married and lived together, aa alleged im the bill; ad@edtted she
had owned the business at Laflin od S2nd streets; alleged that the
business at Ko. 5402 South ashland avenue was purehased with her own
money end was owned sclely by her; alleged that the sale to the
8 Was valid; denied all of the other material allegations
bill.
All of the defendants filed amendments te their an-
were, pleading the Statute of Frauds, Sections 8 und 9 of the
: end Wife act, and sections 4 and § of the Uniferm Sales act.
ss Om Tune 30, 1924, the Chancellor found that a partner-
sted between the complainant and Mary Roser; found all of
a amass e age ies ne ait 9, severe eat sate M
ott tod? autyery soltivog » het), ik eves ; 25804, oF.) “
ravieoes alt gaiinionen tohan edt aadt has hevtometh od mots
not oct gale dbouge thre oe hesapay, wad,
omtdamate dane oth. of MOwReR ap, net a Hs
eda ta ereamo cia ha tt nee sa Anetta
moa Ea wat Dexetan xoKoW Yuels REAL AL wnson nat
| stoeNe ot tase a ed baxee ter nsw, snare ath EA
| on sannaaatnaes vat at a dene oe edt ae Mate
: sit taut Mantle saint 2 haa, i ah.
A; macnn dee hengaotua way onaers, dae kalg dgirnd
| sald wt ndnm, att fant bonekte, tte eh ;
i tanhtona ste: Andnntow conta. wild sho, the. an
Bipot ahi var an ae i: mp aueaet
|
i)
‘the other material sllegetions of the bi11 to be true; found shat
‘wary Moser sol? the business at Yo, 6409 Seuth Ashland avenue to the
Reinhardts for $1600, nd that the complatnant received no part of
the $1600 ond mo part of the profits «f the business; referred the
|\e@use to & Macter to take and hear the evidence ef an aegeunting in
regerd to the partnership and to report hie goncluslone ef iaw and
of facet. He appeal was prosecuted by the defendants frem thig 4de-
‘ares.
(m June 19, 1926, the Chanesller entered a final deeree
‘whi ch is as follovs:
"The court finds that on June 20, 19294, o deerse was entered
finding that complainant an¢ defendant Kary Moser were copartners
in grocery and delicatessen store at Ko, 6402 South Ashland ave-
=: Chiengo, and that 4uring sai@ copartnershin the defendant
Moser soli the property, aseste ant effeets of sald ecw
partnership to Charles an@ Vlixabeth Reinhardt for $1800, and that
Gomplainant received no part thereof, an? that there shewl4 be an
Becounting between complainant ané defendant Mary Moser in respect
said copertnerthip, and ordered sai4 cause to be reereferred te
tan H. Weleh, Waster in Ghencery, te take an?’ hear evidenee of
Reeourting of the said eopertoerahip business at fe, 3402
Ashland avere, from May 96, 1990, te the date of filing the
Paid, anc aleo that seid Master renort hia conclusions of evidenee
soy lew as to the rights of the cemplainent against Charles and
Sabeth Reinhardt,
| “Court further finds from said report, evidence and decree
| ‘that when Charles and Hlizabeth Reinnardt purchased said delicatese
Ho and grocery store, that said business war ewned in copartner-
nip between the complainant and defendant Mary Keser, and thet
Said Reinhardte, ond each of them, purchased with knowledge and
Botice of the rights of the complainant, and that said defendasts
| Mave failed ond refused to produce any books or recorde before the
| Master showing any accounts or treneactions of said copartuershbp
| @f to make any accounting in said bueiness,
“The court finde that complainsnt fe eniitled to ene-half
if the sum which said wary Moser sold eaaid covartnership business
the defendants Keinhardte, which sald ewm was a fair and reason-
‘© valuation of eni4 business at the time ef the purchase of
«ges Reinhardts.
a aa * court finde that compleinant is entitled to interest on
| 8814 one-half of said $1800 fren the date of said aule to the
*‘Beirhardte, January 10, 1922.
7? "The court finds that compleinant paid out as Master's frees
‘ for stenographers necessarily exployed the sum of $128, and
A8o paid cut on the re-rel'erence of second hearing for Lavter's
® the further eum ef $144.50 and also $44.80 for stenographer's
» Making a total of $510.00.
“Ordered that exceptions of defendonte Nos. 5, 6, 7, 4, 18,
te Master's repert be an’ sre sustained,
‘i ered, adjudged and decreed that complainant have and ree
rer of and from defendants Mary Moeer, Charles Selnhardt and
h Reinhardt the sum of $1,098,665 within thirty days, and
tects Baae't geomet ad ot fae nit to ene) Sapo Tie Babee tion id
ome oF woarecoree 5 sae Taek ano RObR ‘oe ea" eins ck wre ony Dor ct ih
"6 guaq on hevtooed aiid Lei ait tend. pews oom ne : et ire
uta howz tet Lamas wld toe Weasieass sil Leshan j
wom tenet ie ‘bere tw’ rotteoars ate sin ver Gutta, ee
Riek pase: i
pexbithe baw texeoW a Ate (oe ent ne cate tne otso0 oree™
RISA Tate SrAK sage ee 8 Fash ue ted han dannte Lowes fasts
ets boa kled dfnet Sea ol te evete crag oy eg
taetoe tes eft qiteventusepe Siae aaitoh de ate fru:
e9@ bine Yo wigeTie hia Bloage | weingety |
fait bro .CCRIS to Soaetnled dietashl® fee esltedd.
oe oF Byeda oveik take hue Towra: rane ow ber inse
Seeqret si <seoll oseu tem hin teh fem Som aha Le fhe
of Ketuatereor bd ad gande bing bovetive Bam y
te ganehive doo pos aved oF , eteonedd wl ted .
POM Jot Yo seewland ghee atid > toe gn ?
oe yniiIt “to. otah sift oF ,CRRL ,o8 yal oort , vat te 4
eéaehive ‘te axolauioabe Kin Meee. Wea Aan teas oaks yee
_ oe wo knad daahena feats Leas, ont Ae baton aid
| gatteed ban sareblye freq bon mort wh’. contest 4
stnsaol ib bine Benwdow, Phiuecateh MedealiA how we fxadd
want tages at bonwe sav wapaiand hiew tadt or *
ted bow , deed We taehac teh Gm teenie kgs end |
ine egholvoml dtiv bseasote, ,med? to foam foatn a "
atdwhagieh Play PalY hae ,dseadetqaed sad Ye we
ed? etg'tad ebioosx to dood ‘Vile wehorg oF bouton haw
en coo biew ‘to sveltose ney og pPevaaen ae
,aeentoud & las ant gale
Pindeate of balstine ah Sanelalgmap tasy |
eeonlaud a dria cte nits 00 bine bien tosh yieh fh,
<n: ae tiet w Gaw aie élaw do bie 4 eae
~ e pansiaterg ont to ams ond. ta #!
thee fanrodnd et bs fd tone at taanhal oo :
end oF » Low nor Ye bdabiell mena tap ‘
nae Beer eg
ave’ a coteall ae tee bhne tonabe sey ‘wel iil ® sis 4
hme ,AELe UW me pt aooat he
ated oak tor greg rey
hah rai hish nears tat, O8 Phyl cate
ae 8 5 2 a a. Stan han"ton
ie bod tetanw ; ou bh Ge
“ot ins: ved Pep doy Pre heeteeh 4:
hae Mitadaben wokrede Orne yea, w
_ hitkes Rowe! hs dnl atde he cin 00, Be:
ae '
bi 4 pai ie mR HS
Me
that won failure te do so an @xecution issue.
“Ordered, adjudged and A4eoreed that Master's fees ef $75.00
for first hearing, and $144°40 for second hearing ond reference,
making a total of 3219.50, be allowed and taxed against @aid
defendants se pert of the coets im thia euit.
“Ordered, adiufiged and decreed that complainant have and
recover of te defendants the other and further sum of $219.50,
his costs laid out and expended fer atenegravher'sa fees and te
the Kaster, and that exeqution ieeaue therefor,
_ Ordered and deereed that complainant have and recover ef
the defendant the other costs of sourt to be taxed by the clerk
and that exeoution iaeue therefor,*
From this decree the Reinhardts appealed te this court,
Whieh appeal ia numbered 31300; and frem the deeras oll of the de-
fendantes presecuted the present writ ef error,
Ye have exauined the evidence and we are of the opinion
that the evidence supports the decree of June %, 1924, and also the
decree of June 19, 1926.
Counsel for the defendants contend that the partnership
|‘ Dbetween the complainant and his wife, Mary Moser, hare not been
Proved by a prenonderance of the evidence,
We think that this contention ie net correct.
The complainant teatifled that when Mary Moser owned
the store at Laflin and S2nd streets, he had several conversations
with her in which she asked him to lend her money; that she sata she
had to have money; that in some of theese conversations she asked him
to marry her; that he finally lent her money, giving 1% to her in
| Various amounts at different tines; that he gave her the first
Gmount in November, 1919; that she promised to pay him back when
she S014 the store at Laflin and 52nd streets; that whe sold thet
utore and at the time of the anle waid, "Well, Nick, I wibl pay you;*
that she then bought the store at Ho. 8462 South Ashland avenue; that
| after she had bought that store she said te him, "Weil, Hiek, I ove
you #0 much money, you have been lending me. It comes close to $700
vat T owe you. We will get married and you will have that money go
: nthe business and you will ve in partnership both ef us in this
+" that he said, "Yell, all right, be ready tomorrow morning; #
ovsel aoltyoexe an oa be ‘ef vw tiet oo, ft
Oo. are te ase? a'aotaau tad? pReotpeh fae Boia ta’ ta hate
ware 0 gy te beoooee ea i citaen”
bhab sa kayes horn? das heave. e fot @
tine eitd at efeos ‘Sar a? send” ae
baw avad tuanlolqaos ted hoetoeh baw deptatta be ;
Ot. 9288 te one vedeeyt bow tertte oft efachne toh vr
at De aoe? at xedgargesets set bebaegre dan one jad 21209 pt A
etotetas? soon? aotiueoxe Part &
te tavooet haw eral jasnlatomos fare hes teeh ou “hele
oy an ee a
axel oat sind horns ed od ttyae to efeoo vedio”
| “otetean ds event nal tena ae
Peso ehas oe | bekeoean etbradatos esis . PO LBO5 ates wet oa
~b oat ‘ke ihe notooh olf mot emi 100846 boxedawa, al tancen c
) conte 18 how fapsetg wad betunenerg sta ;
notntes end ‘te ons ow bite pone Low quid Doughaase, ated | jae wt
amt aa te bits ‘pean 308, age’ te pene outt some: per a ’
étteront w0q weld dante aeeies ptaabas'tod oat wi pny pe =
need ton aad ,teaol ete whe ake bet bana:
acme oats hd auaanahs .
ne ey Tene
doer 99 ten ol aokeootape wane itaiett sieubeit oW
Sa SEARS: pas
— aeee eta a tt batt hott isess tnoitta Lewoe okt fhe me
sno ttserovnes tatoven Bint oat atnerts mean tne ub Pad ta acote
A a tS pene Bi
are Bion ot, soay yes nex nes of att one in aera ‘etnal
ie
ea ‘tig Wate
ak 0H wa. 2 p nated seat esl fast £ xtient on sant acker
“ madw hod abel. we at heakawia oe, todd. 70ee sp den ey
| | i dase Blok 96a tat jatesrae faite bee er nes p nko
: Namo eq tésw x iol re pas eine ad Yo abs oat de, pod
tent iowaove bao suet ‘sone - oi te. srote Peet Crane
i ety x vio ti (new ab os bine ous oroie saints ite
ai | a AAR pe ens eth
T)| — g00@ ee eeose neutoe: er) ea amabant need .
CY Sip ne ep “ays tae “an
ay oR Geran sant oved ikke we ‘bae Debviam ana, ow,
Me oe at Hs A
| “annae _ ‘we to god ide rentteg hme ri |
ig ee Sioa ah: ab tela i
candace torseset weaes, od. sda Sh ghtO™, obi
that on May 96, 1920, they married; that at that time he wae
making $45 a week an‘ that he said to her, “Mary, here is my
Wages and thie will go in with the businews;" that he gave her
his wages fer about four months; that ehe said that she was paye
ing « olerk $15 a week, that there was not encugh money in the
til, and that "If you stay home and tend te business* we wili let
the clerk go; that he, the complainant, quit his job in Kovember,
19205 and went te the store to work, and worked there until abeut
_ Bevember 26 or 27, 1921; that in Hovenber, 1920, she said she owed
= father $700 and wanted to pay him; that he, complainant, said
=a right, if you take it out of your interest in the store;*
that’ ene paid her father; that she said that she hed had the milk
— transferred in his name; that enbeequentiy they quarreled;
; that she took all the papers and money out of the safe; that she
gait te the complainant that £f he wevuld cive her $700 or $400 he
gould have the business, The milk license was introduced in evie
“dence and showed that it had been traneferred to the complainant
on October 21, 1920, for a period ending December 31, 1920,
& lives, Minnie King, a sister of the complainant, with
“when the complainant lived before hie marriage, testified that she
| had a conversation with Mary Koser about July 15, 1921, in which
: “Mary Moser said that before she solid the store at Laf‘lin and
Send streets, she sent to her father for money; that she said her
“Tatner lent her $700 to start the first store; that he wrote back
. if she wante’ more money he wanted to go im partnership with
- ir; that sche sada she Aid not went her father in partnership;
the complainant had worked in a baker shop and had put money
n | the business after she an4 the complainant got married; that she
him te quit and took him in partnership beeauee the clerk was
more money out of the t111 than she was putting in, The
further testified that she saw the complainant in the
How eH omks tadt, da ntoddy she tetany eer 408 OR a8 a et
yay oe
oe wm ak eed, wen med os hee. oat. tas haw teow. * ee
(TS PI
ey avay ot taitt. *qaeeuloud aid. ‘athe ab a3: Sik, ass. hae an
“nae. aaw ein gece hise eda sade jadaaee. swet sods a esam
“oa wk venta guoe dos ane oreds dade: toow e 088 tr0s9, ad
toe Adiw ow. Ssagalend v2. bane bas awed ete 0% 7a dant ba “4
Spee Cee. ai
ctodawveit ak dot abu thup 1411 abe Lers09 oad 9d ‘tas 1a te L9 4
| ‘tuads ‘Ehaoas eusdd boxtow baa witow ov vote oats on tro me Ot
ak dane oe LE an
hewn ers bine este 08 0 .todovoR a ted qaner A te 08 Ras
os ARR a a hao
bhes aaente Lemos od “fand aes you at bedaow ban ‘cove *
*semose aid mt tuetedad | mw8y Xe sue ah ‘owed wax yh tteke “hi
i aaah coe ni stat ut
gnhe ot hed howt isin Foat baw ode tacts ptodye’ ‘aot 3
ik ne
tee domeans yout xitnwwpondwe dans oma aks ‘at seteotenwe
‘ene tedd jotos wut te due tenon bn weqee oat tie Moat ms
Hao iy
gt
out ened "0 ore sar! ‘eely b tere on t Sasa taeata Lee | oat
wtve al beowhottal saw oanmois site ost senate oa coved oe
$uwate.comon od? ot horus tenes woes fea at ‘soste ‘bewori cl oo
hy eR SN
sone off oan 90d galhas boltne a 0 ans Cond de
ait bw staschs Lone9 ous % upgete a +aukt oon « Bice: rg
‘t bi $ hovi ° ss
oe 3 Sats het tenet ue Trait a ene ed £ Takase #
ae diee mt A808 ves eiat toda 890i yeni ashe Cp a con
baw ais ted, tin oxots esis ‘akon ease oxcted tna ba
‘weet kas ase sess Pena xo estat aos, oe om
Ree CRO
fond otere a tod javote: boat nae toate, ot “oon to ta 9
4
date ahiatoas eq a om oF beanow out woo: Tories
ey (Sy ta ie Poi ix ia cate
i 79 amt yakaawe a oo outs fie
Dovid nt deentetenee eae ven vm hee
” ‘ ne Longe, he SN AN ag olla Sig a r ay al RE yh
7
store waiting on trade.
Leonard King, husband of Hrs. Minnie King, also tee-
tified that he say the complainant in the store waiting on cus-
tomers, ei |
The testimony of the complainant ie contradicted by
Mary Korver, but she in turn is contradicted im material matters
by other witnesses than the complsinant, and alse by documentary
@vidence, and we think her testimony is unworthy of belief.
Counsel for the defendants further eontend that the
finding in the decree that the Reinhardts had notice of the com-
Plainant's interest in the business at So. 5402 South Ashland ave-
nue is not supperted by the evidence. We think that the conten-
tion is net correct.
There is direet and alse circumstantial evidence that
the Reithardts had knowledge of the complainant's interest in the
Duainess when they purchaned the Wusiness fron Mary Howser.
fhe compleinant testified that after hie wite had
ued him for divorce Charles Retnhardt sald te him, "I hear you
got trouble;" that he, the complainant, said hie wife hed left him;
that Reinhardt said you "got the store on hand,” and asked him if he
Wanted to sel it; that he, the complainant, sala "This oaee is
| — dependent in court;" that the estore belongs te hin and his wife;
that: Reinhardt offered to buy the store for $2600; that he, the com«
| Plainant, said, "I cannot sell it. It belongs to my wife and x;*
Mat Reinhardt said, "Get a1) what you can out of her;” that ateut
‘months later Reinhardt spoke to him again about the store in
t ‘ presence of Mre, Minnie King end her husband; that Reinhardt
. ked him, the complainant, how he was making out; that anytime he,
# complainant, Wanted to sell the business, he, Reinhardt, would
‘that he, the complainant, said “Wait till the court decides. *
Bre. Minnie King testified that she had a conversation
: obett no git tam te
wood cate (SA0X Otnatw lat Vo Shedend ,gakt bxanosd” Not until
~eire a ond mt cnmaggsar “ett eee sen
sl debi thitied et Pomatelqawe ert “ts wostcktnet re ee ih
@xodtem Labret ot Bede lpetdase wf) ‘renee oth dud (tonal
ead toad ob” ‘ee tele bie Pon ele Kept ast sana aebaens lw canto
he hed te et rowan al yoomivest aoa dakde ow bins! gered
helt bent Sabdinge eHscirY WthabAD Oh os: Hort’ cowie » ws Sen ll
anes oot to eotien bat ethuwdalen one sacr “eeteeah oar mt watt
aova hhatsnd sigiom #Ob8 od bial ‘eae tend ott it Fee ce sat oF Siw ink
wmetnoo eas fads ‘nail oe Vebaeshive oat w bevroneire’ som ad
08 5008 8 0 el at OOS
secld op debive taténatemoste’ odie’ bias foots wt Sapa’ oo oh
etd at fuoreta a? faoaha Cqlend oat 9 obs Lrocnt Sa stodtito
aopoll veal kovt Geemteud ost boasiiotwe Yett pape
bod Siiw wld taste Yaltt Dov Mend tramde tqung WHR! Oe
wey anon T” (wid of base ‘Manito ao Sted opterts oven r
att “#tak bed othw afd bias - dadinka Sento oxy ut tert? *inscivont,
ot Th wict boxns Bite *, Sawd Wo wtodw at fog" woe biee Hyteditek sy
ae owno eine’ Blow gabtitntqudd ott yon: tent ab ttn 08 i
rotiv aid sie ‘aad ‘oF ogmoled wsote ont fae *stiweo at ga bam
wed af od tact sonaee ‘aot wtode wat wed of here tte £o% ot
Wy hae witty Ye of dynaked $2 02 Live Penns I" ybtaw fet
tueda fas’ stent to Fyo was wey texte be oe" vitae thuacintnd
at 'atote sai tyode dingy ait of oxoqm sotadatod te tad edgadm a
‘ghuedn2e8 tadt pouadegd tod bite Hadas tnsse yee Te wo mete ty
jad watargue Jedd j2ue yabidg sewed wad pte sto Lean om gaRta
“Mae sirtamuss oa ee trast iioe fos — ms ated a :
dae
%
with Charles Reinhardt about November 1, 1921, in her kitehem and
that her husband and the complainant were present; that Seinhardt
said, "Kick, hew ie the ease coming?;* that Aelmhardt said te the
@omplainant, “Do you want to sell your half interest in thet store?;*
that the complainant said no, that he ¢owld not de anytuing unti}
| the case was decided; that Reinhardt zaid he would buy the moment
that the cospisinant wanted to sell,
a
; Leonard King, the husband of Mra, Minnie King, testi-
4
— fled substantially the seme as bie wife in regard te the conversa-
,
i - fhe evidenee further ghewe that on Janusry 7, 1922,
“waite the suit fer divorce between the compiuinant and Wary Koger
‘., pending, the Reinhardte and Kary Boser entered inte « vritten
aa for the gale or the businega at Ko, $402 South Ashland
te the Reinhardts; that in the eult for diveree the complain
“ant had filed an anawer, claiming an interest as partner in the
‘business; that an order had been entered restraining Kary Moser from
mnteg er disposing of the business; that on January 16, 1922, on
“the motion of Mary Moser, an order was entered dismissing the die
&
ae
suit; that on the same date the Relnhardts gave Mary Moser a
for $1406 in payment for the business,
| Counsel for the defendants further contend that the
een of June 30, 1924, and June 19, 1926, are not in harmony.
. ‘The argument of counsel in this respeet proceeds Largely
the assunption that the Reinhatate 4i4 not have knowledge of the
© ae nant's interest in the businese when they bought the business,
| nat opinion they 414 have such knewledge. In this view the de-
Fees haruonize, Yurthernore, 4f the bill of complaint should be
tru a as alleging that the complainant was entitled to the entire
S, and not a half interest in the business, the fact that the
or found that the complainant was entitled te one-half the
bas modotit tom at ,t8eL ,f vedmevell oweds Phusinteet aw hiadd te
fhiadaled gory ydaveedy -diow ‘tae wks Lesion ont Site powdewt t3d te
edd oF Stee Shtedahed todd phan odie ote eb tod” tonite bt
* feross tant mi. teniedat thos 2H 9% tiea os Shaw way ana” dpucsnggtns
£2¢ nut ‘galldyae ob don biwae ed sadé ,60 Bhdd Yadatwlqmon sat ba
ta orl acs ok’ Leaeial ‘Pitedulod bade’ ibsbtosn ea aan 6
hiirnsite 0 OO" tes et hednaw diate He te
sidaed eat We at eee a pane eam! pea
ni teenie ont at — il bai she Go omee walt’ ‘teettnatedon “he
ieee” HER Rae Oe shel” ig sh Moti tine ths ti ‘He BAR HE ‘ge i
{eeer” a eure xo “Fatd wrote ean aoaeh tee ait ‘ah po tik
rovok ital ben’ dette Leas out tibowited socev ih’ tot ate aie ath
geitinvne « atat heretne i808 eta bag edb adakow 6x: anevada
ya fated ritwoe @One Lol de ane ntoindt aft 6 otbe: out ot tapmeen
ntateabo on” ‘be tevth eet oiew one ar tout’ padbea aay
ond at’ tentang fa tebae dic ine aihasa rs” isco nett? eu “¢
mor x60 vt gaditerters hoveding need bet ‘eo btie" no base eva
ae {82er OF yrawint ho tote’ peadRto’ MP Te gubwogs Wo Rant
: “aby eit gates iat lb hetethe eew Lobes iw tee ol eri vo sts .
a towel tat ove sthtunat on ox’ otah Sime eitt ao Heit y¥bua aod
PO SO goateud te Lex Hremeay He be re * x i
“ita! del’ vas eno xonerit athena thn’ its eat Lobawee PONE
" si¢etourtia at ‘bom ore aber ver wut Wie jas er” et onto
utogrkt thbebove toorwan eRe ak fonaired ‘te soneceryes nf nnd
ete Ye aude Leoit vad ton BE wepknetitelt eit tad tot drs
vembilevt! bat dduyi'd voitt nod wai ditind! oil Wt duet wn
web nil} waby eile Ht egnetwonit aie orien ahi aa ‘te
ed eneiven Tit ein te hill iat in B argmseeaiss tes
i
“edd dala Ene ett sweeter ‘ody “net
UE cated Oy pepe i i Hes
10
gum for which Kary Hoser #ol14 the business te the KReinhardts, vould
not be such a variance as would require a reversal of the decrees.
Heyman v. Heyman, #10 Tl1i. S24, 540.
Counsel for the defendants further sontend thet “the
alleged ante-nuptial contract for the partnership was not in writing,
and being in consideration of the marriage, was void and unenferece~
able.” In support of their contention counsel eite the cases of
BeAnoulty v, Keannulty, 120 Ill. 26, 33, 34, and Richardson vy,
Richardson, 148 111. 863, 567, which hold that marriage is not
sufficient to take such an agreement out of the Statute of Fraudce.
It is permissible for husband and wife to form a partnam
ship with cach other in business, Heyman v. Heyman, 210 111. 824,
B32. Although the partnership agreement in the case at bar wae not
in writing, we are of the opinion that the performance of the parol
Gontract took the contract cut of the Statute of Frands. The sole
Goneideration ef the contract vas net the marriage. ‘The complainant
hea lent Kary Moser money before the contract was made, and part of
the consideration of the contract was that thie money would be con-
sidered as having been invested in the business. In other words,
Andependentiy of the agreement to marry, the complainant setuslly
“purehased an interest in the business for a money consideration,
nermore, he gaye his time and services in assisting te conduct
business. We think that the case at bar does not come within
Tule announced in the cases of MeAnnulty v. MeAnunulty, supra, and
ghar BOM V. Rich
te
°
It in further contended by cowisel for the defendants
hat there wes no transfer or conveyance in writing of the business
f Mary Moser te the complainant, ae in required by section 9 of
68 of the Illinois Statutes relating to Husband and Wife.
@ ie se follows:
Aisrow ght bsedale ®t ont. ot RAO TERT pate ion svea.08 Yani, P
mre sand Sail to Lanxexe, s otlupet Rigow se ao nn die
: ORE O88 TET Oe nes
“eae facts pie “aan xu" afnonanrer ont xt eal ae on
Ws Sa page
wands iw at tom ears qhiarentteg one ae feartave Leltew ie
pyc y (SS Soap OB! SP ae iy of eet tha
sore anny baw pag ts ean wopalytan este te Paatgpdarbeet aoa ma
Ny tc) RRS ie Se MM Se a ata Gan Le at RUE
eo acess ont otis feanuaa mol?u03.02 uest Fond Bi: awe at
at agabsasien A he be BE 8 ELL ots sWidunaned ae th
. tom al ope tvne taut bes Aohse Tae 608 aa ‘pox : Kaaba
aeneus PAUP AL Ea Oe Colt ie et eu ie
} about te etudast edit te tua taesow age co down’ falas ad as
@antisg @ aio of otiw bae haadamad ‘Toll eidien Lane g ak or ene
pity ee wae Aggy s .
en ‘fa ors ee eee ed ak mailto eas por
ne oly oie yay a a eg Be faye ‘hy
fon ar ‘ad py ane ade a aoe tHe adstatenst0¢ edt syerodd LA
. se
Ky cdi
“
me TIONS ARE: get a Aiea ‘i
kona owt te eonnunste¢ oat saute sokatce hepa to ome oe een
Fae: NBEO I ays ao binge: tect ab 9G. OR dasa
ofos oat shuar’ i) otetess exia e tne teantaco ot Xoot
oy a BY oe # ee LE Aah’ Jfty £ hist if Cie Mele 7 Sats Leh Cane Be a
toate anos eat sana beta add Pos ane teertnes ade, Peat:
{ OP sf eS iy i ie
te bang hae seban enw teardacs net ere'ted Wreto peg! biel f
. 00 of biiew ven ebay jase cay sontdane ext bo nok tone stone
‘ fe . iS hte #2 aa ng a (
“abrow ‘uediae at seagatesd ot ak Bedesvat med gaived ae bet
Peat Hiei * ie Le Me ie me ii RNG
“Miauten: “Guan eLqmcce ond item °@ sapnas tys edd %o vs
ure ws RR A Ba vy. Se
nedswroh bases yesiom ry met apoatoud ond ab nape a heme
#5 AS, RING ata Sere we Ape Shit, ek
tovhaee os ere al aa tree baw Laoned a bel byithd he an
ek eae: RA Aas
abaaie amos aa mot wd te nao ent teas meres az atta
ERS ae ea. BL Ld
; (apaage te goose oad wt Aeraagpestii
tay iy) Mh Ti wee nage
azuhaetab eas sot fonsweo we foie ,
asontoud ate ‘te pata ter a sonayevnca “4% mien
ca bids Para ae pont
“te @ aoivoen xe dextopes a2 bond peer no ae
ake ban Paadount of aahteton an andeg® a Lost. Li
Meg SMO % PTA A RRR Wee Ne) i SS
-
lm
“g7
il
*A married women own, in her ewn right, real and per-
sonel proverty obtained deseent, gift or purchase, and mane
age, sell and convey the same to the same extent and in the
game manner thet the husband can property belonwing to him:
Provided, that where husband and wife ehall be living together,
no tranefer or conveyanee of goods and chattels between euch
husband and wife shall be valid ae against the richts snd ine
terests of third persons, wunlese euch tranefer or convey~
ance be in writing, and be acknowledged anid reserded in the
game manner as chattel mortgages are require’ te be acknowl edged
and recerded by the lawe of thie State, in cases where the
posseesion of the property ile to remain with the mortgagor,”
We do net think thet the statute is appliiesble te the
facte in the case at bar, In our interpretation of the evidence
the Reinhardts had full knowledge of the fact that the complainant
had an interest in the business at the time that they purchased
the business from Mary Keser; and the Reinhardte also ‘knew at the
time of their negotiations for the purchase of the business that
there was a suit fer diverce ponding between the complainant and
Kary Moser; and that the complainant had refueed to consider an
offer from Charles Keinhardt te purchase ¢he businese because of
the pendency of the suit. In thie view of the evidence the Kein-
hardte are not innocent third parties, On the contrary, in pure
@hasing the business in the cirowetances, they were wrongéoers as
te the complainant, They should not be permitted, therefore, te use
the atatute to relieve themselves from the reeulte ef their own
| Wrongdoing.
; Yer the reamons stated the deeree of the Chanceller
_ ds affirmea,
te
ae AF¥IRRED,
ly, P. J., and Matohett, J., concur,
eteg bie feet ,oigin pro. tet ‘at a aso w Be a eae
tua Bre Sandie * xo Stip Siedene’ Sikatasee et ami sGoR
wi baa suetxe omee oS3 of ceme. od? yovans in iioa sone
ay ot galgaoled ydionet¢a amo Soadand ect Jagd velo aaa
-Mettegot guivif ed Lfede etiw bas tandend ete da pig nea yons
douse apewted elsareta hne aboog to sauevernoo
«a2 bts aidyir en? tanteye oa biter ef Linda ote bite Amodau!
“~Yovaos to ceteaers dove septs ,emmeted bubdt to atexted
” on? al hehtovert bam heghalworien ed bas pants bewonk és
‘haghe fworden od of hetlupet ets sogeyitom Lettede ae tenman-
oo Qe etede Qoeap-al ,osart ales to weak eae oyd’
"megane tom arid ete kaso bri ak bse el ong ‘te aolveoure
ay ey FUG $A ve
eri? ot eldeotiags at etuteds ont anc tats hel on rel
, ve Lis
sonshive ry ‘te aotteteratsg at nr al ted te ‘ease oie “ak ate
yeah Pe i
taealeiqucs ost fait goat ous te syboivomt ‘ke haw etbradnton
Oe Ey eae
beredonwe eons taal emia ond ts ene nhand eds at feqeaat pon?
“amie ‘te ‘wool on Lis ashuediaton edt bite pineal cia ert eeontand 8
tacit aaa aieud oa te ouesionug ons ‘sor ame teettoyen teas iy 90
bee tasate Lawos os moowsed aatbaog sox ovis bd thee aa her mates
ae awbtanco hd poautex baw dawnke tqaee outa tasts am AM
te eauaood eevatand out onedotug tl shresiaton ve kta ‘s yt '
: Pt ele a,
onhed | oats soavhive eats te woly adit al the ont te : 9 Bet af
ang mt avtargaes ould no 29 tisaq pete bapvomatt tea exa aan
aa atnohaitexw over weit ssoonatamronts one mt, foominnd odd aa a } !
oe ot roreteds shettinneg of ton binge ont ceesnneterns ae
are ated? te et Liner od? sot nov fonanitd qvetion oe «
Sak Rent AQ
ee wat |
rol leone eds te oorna’ one “bodeen saeagey ont <o% a os ids ;
eh wl
ae.
4) om: Hane F ; Ye
a dunt dad san Rial sie haan BY ways iia We eh Me
SeGat ti PPh sly Dahan aie Bini A oe Bitte ual
“yy
oaro Mtoe ie rennet eb iN, hi 4 “wt
i Did apie yA SED kek Be MES ae Ws tbe mM He eae had bs
Mae! { dhwiunes od he , Marae Died ent yh “tnoyih ou
ars ‘
Me hat ae we, es eee meh te ae
i Y me my say bi Nal 4 Mah at ah
; f TaN
i = 313060
_-sroxars MOSER, )
Appellee,
vs,
APPEAL FROM CIROUIT COURT
BOSER et al.
OF COOK counTY,
Appelt ants. >)
Kes!
WA, JUSTICN JOHNSTON DELIVERED CE OPINION OF THE COURT.
Thie is an appeal by Charles Reinhardt and hie wife,
th Reinhurdt, from a deeres in favor of Bicholas Moser, the
Lainawit, in a suit im equity brought by the complainant
inst the Reinkardte and Wary Koser.
Thies appesl was conselidated for hearing in thie
rt with the writ of error Ko, 31192, in whieh the same parties
* interested and which invelves the some questions as the ape
We have rendered a decision in the writ of error
io. $1192, in which we affirmed the deeree of the Chancellor,
u ; decision ix eon trek hing on the questions presented in the
ros at appeal.
The decree of the Chancellor is affirmed,
AFFIRMED,
urely, P. J., and Matehett, J., concur, ae |
t es
Pe) ae . tay oY
ee C Ain
; eee , a Me rics!
BY
PS Ms Liew, ee
* Stic
aH: TENORIO ome an, on
(i iN na eemae9 2 1009 or
rein "9 SIRE oe
% pea heh Oi. im
a te gs
a : ‘
SBRO h: 12 ERS
eae ea
‘sTAYOO BET LO NOTRE TRY CRMAVE IAT: coteinat saris: ak!
eS ae TE gen kat aah
athe and Bass shrnssa tex ee fant xe foaene ne at ater, sak au ‘bei
ade ed Be Lotto 20 toye’t ak vated # mont ,thandalel. baieintte
on “mente rqnwe aud we Seared athe, a P hue hue 6 a ea he
: eet yuk bow athvadaied vst tata
Hi ‘sist at aateeod ‘20? hodabifonnee sow Langan gtdt. ate i
ae botag eane nat ewe at SOL@ .om wert.) ne
8 ‘outs on Emo teaoue, enoe, bigal seytovat ap bite ran of
nigemes age Ce Re eee ee hil edit ae
aoe te aie eat vat notetped: a | hetebues, Sad a £ eats ante :
ry nee ery LUNe “y % 7)
: Red foonanto ons te. . $9709 exit boot tia. ow Ho hte ah, 884 |
ant af bataoweng anoligenp ail? ae r ae wel iLots age at ae ’
mm : showed Ts es Tellegoedg ont Ye, penoeh oat canna
1 Re al? ava aah r
TERESA | : a
" x
Pi te Rae eR
161 - 31°92
CHARLOTTS A, NICHOLS,
Appellee,
APPEAL FROK SUPERION COURT
V3.
OF COCK COUNTY,
YOUR CAB COMPARY, a pL
Corporation, DAA Ae °.
Appeliant. yd 44 lt rhe
BR, JUSTICE JONNGTON DELIVERED TUR OPINION OF THE COURT.
faite fs an action brought by Charlotte A. Hichole, the
aintiff, against Your Cab Company, the defendant, to recover dam
ages auetained by the plaintiff when struck by a taxicab driven by
. chauffeur erployed by the defendant.
The case was tried before the court and a jury. The
returned a verdict in favor of the olaintiff in the sum of
DO. The court entered Judgment on the verdict. From the Judgment
defendant hae prosecuted this appeal.
The accident oceurred at the intersection of Vincennes
fenue and Oakwood boulevard, thoroughfares in the city ef Chicago,
} about 9:30 o'clock p.m, Vinsennes avenue rune in a northerly
southerly direction, and Oakwood boulevard in an easterly and
ly direction,,
The evidence relating te the manner in which the acei«
A happened is sonflieting.
q . On behalf of the plaintizf the testimony in substance
that the plaintiff was on the east side of Vincennes avenue in-
i i< to eross Cakwood bovlevard at the intersection of the
re te; that whe reached the safety island in the eeater of the
: ‘ fon; that she looked te the weet and sae the taxicab about
z | bleex away, coming from the west; that at the time she saw the
tes “it was kind of slowing up;" that she then started to croas
en she had taken about one step after leaving the safety
vate 4
«ea tay pi
ih ut
ie :
‘peo corms MOR LAA
ce PRIM WD 19
m is 9 A, i. LABS
_sRRIOD aE bil HOLETIO SAT CRAYTm blend MOTPAyt «A
seeiihia eT ee a re a
out beaded “A | 99s ebsi id Pwr mite 4 em. Hs alee 3
a) sori ds wide
IRICEN Rees HS el Oui eens guetta bovetgen
Pet octet & bine twas anit Ct nth enw ‘ae ee)
Ye one este at ‘bint te ote te sovatt at gotinme &
dnowghut add wort sPatbaey ex! no drbaytvt Rerwein: tena ©
Seite. eae . oly PR EB arcuate is ‘ teoiage wine: between one aust 3 ad
soumnoatY bi sohzeomeesat ” te hoxtweo tod Y :
island the taxicab struek her; that the horn of the cab was blown
at the time; that when the horn was blown "the cab could not have
miesed hitting her;* that the taxieah was going at the rate of about
fifteen miles an heur; that after striking the plaintiff the taxioab
went 2 distance of about ite length befere 1% stopped,
There wae testimony further on behalf of the plaintiff
that several hours after the accident the sen of the plaintiff saw
the chauffeur of the taxicab at the heepital to which his mother had
been taker and that im « conversation with the chauffeur, the chaut’-
feur said that when the taxicab struck the plaintiff he was looking
for a nwber hie passenger had given him an¢ that he ai4 not see the
‘plaintirr,
On behalf of the defendant the substance of the testi-
Bony is that the plaintiff “etepped out from behind the safety
“gone peet right in front of the taxicab; that the taxicab was about
‘four feet away from the plaintiff when she stepped from the safety
Asian; that the horn of the taxicab was blown, but that just at
“that moment the plaintiff had stepped off of the safety island; that
the taxicab was going at the rate of nbout twelve miles sn hour.
| Counsel for the ‘efentant eontenda that the "plaintiff's
witnesses show a state of facts which indicate that, aa a matter
: law, the sole negligence wan on the part of the plaintifr." We
to not agree with thie contention, The plsintiff testified that be-
she left the safety ieland she leokad west on Oakwood boulevard
Ma saw the taxicab couing on Onkwood boulevard from the west; that
| Wee a helf block away ond wae "kind of slewing up." This testimony
ree ® 2 question of facet and not of law, am te whether she or the
of the taxicab wan negligent.
On @ consideration of all of the evidence we are of the
: that the verdict of the jury wae not manifestly against the
e of the evidence. The testimony ie conflicting and the rule,
heagete oh water diane I ath swede te rae * ‘a
‘*ritatalg edd %o Ueced ae tectttw?t eaomtiend pow euedT = 4.
wae ‘vtivatealy sit Yo nee eit Joehivoe of? radia ateod, iateyee *
had teddomw gia todd of rer Ons te dwoteead off ‘Lo twat twade
wtivainto® Wad |, Kew Ttate clo pity! ta tw wetinetsvao a dt tadt ban agdet a
gabtoct ehw an Yetbute a end Xouets Cantus’ ox und tudlt pia
estt eel’ Ha B26 6 Fade bud edd an bow Wankssen eg es
\ u
ite beh di
Pe Re RS pith Ae Pie Ba £
ohieee oat te bo nogeden “eitd rasban toe ost Xo ‘aded a
Hae bt
yietae wuld hating mont tue hecgesa® Titvmete ads tant) wh x
“Sereda tow dadband bos Sedd (hoolned ont te tuo at trig noe *
ere |
Py BOB ANd ke
woken adit mort hequste ote “aado Titsntese ond aot ae |
a) ‘deat tout awd sarod wae dno tant ont to tod a,
att thie tok dottes out %e ‘Ye bocaete, bra vitemtose ni
‘wed ole ae Lim avinwd tuede ha son eat te ‘gates oor ° ee :
RAE Pe sf ie Bok &. ‘a
e'reisatete” ‘ont tax? ghaednes ‘dabne'teh ‘edt 20% Load 8 | saad
we ie h
‘tattam # es tens eton hoat ito hetw atea'y Wy erate * ‘ede " j
ef *.ttltatety acd “Ye fae ont ae wae one 2 2 oaiaad
| ~od dudt borthiwed Tiitalety oat «mo.22 19800 obae we Re eae a
| | trave ivod haowie 9 ais fuse pedook oa pawiel etoran ont Y94 ra
Hl tests itaow ods aoe brave Lied beowise a ‘aaksoe SI |
I Wombtans wha? au eatvete +6 posta now Baw geet
| exit to one “aittoan ef ms al Yo tou + bao toa Xo aetie
bi HBA
od to ons ‘pw gonabtve ext to te’ ue wr , sis 1 '
VT. acne OM is een fy
{|| aiid #irileya sono i ‘ohbs
j if 2 ay He waka: tie ae ‘a se
ji" have wpe
Whies is a familiar one, is that in such state of the record it is
the special provines of the jury te deternine the eredibility ef
the wltnesces, the probability or improbability of their testimony;
ané that a court of review will not interfere with the verdict wn~
Ress it is manifestly against the weight of the evidence, Hale
Harvester Co. v. Hale, 201 Ill, 131, 146.
Counsel for the defendant further contend that the
‘court erred in permitting the eon of the plaintirr toe testify am to
the statement that the shavffeur made to him at the hespitel, and
tn fllowing the trial attorney for the plaintiff te diseuse the
“Statement in his argument to the Jury; that the statement was net
of the res gestae, but was & narration of a past event; and that!
under the well established rule the statement was, therefore, inade
Missidle.
‘ We think that the defendant is net in a position te
assign errer on the ruling of the court for the reason that the
Pd shore that om the trial only a general objection and net a
cific objection was made on behalf’ of the defendant, At the
the testimony waa being given, the trial atterney fer the de-
dant eaid, "I object te that uBless the parties were presen:.*
triel attorney for the plaintiff asked, “Unless who was present?*
trial attormey for the defendant then said, "I object, make a
L objection,*®
It is the well eetablished rule that obfections to evi-
tuust he mate apegifte. Chicago snd Bastern Tllinoie R. 8. Ge.
eiiage, °F Th1. 129, 15%, 133; Diuinele denteal Re Hs Oe. x.
B. 206 Th. 623, 5353. In the ease of Ston reat ¥¢ 1 O42
» 42 TLl. 85, the court paid (pp. 04, 95.) "It han deen ao often
Md by this court that objections to evidence must be specifie that
Ass become the doctrine of this court.* It hae been explicitly
Ld that objections innpugh form as “I object" and "derense
wt ty toons, odd Ie esata sean: ah Gadd ek, poms, ‘os 8 Shana t ak Re aah
Yq Ytiidibare pa? ealmsetad.od work ae te sedans ‘
pwoulsent shed? Yo vs ittdedorgms. xo qo ALddndong odd aaa :
_ att doth gd2 dike ete tiedal tex Lilw wolves ‘to woo i pore
giak owen tye odd to dighew ant dockage eiteothanm at thie
| ; ODL HEL LE £08, +2LoMet 00 sogenr
wi ey jadt pastnes teddint daebae ted edt sot Lome fecrrwaian, fe
at ae Bildeet of Wiltalady edt Yo moe ent guns # hernsee ah hem om
Bae hod honad oft ta model oo ba cr Thien he ent rant taemadare:s
pat angonth of Titeatase ont wwe erated ta, Inted wit geben tie
uh ti saw tancoreta sat tad. rem, oat, or Saesargte wast a oven
saat ban piaeve tas¢ » Lo aotiorimn & mew dud eateon ez ast tm
chal, tail yen Pepoe tate, att, oie hada disagen, Aton ond a0!
: ae Vobkekaka ame, dite soit
i ot ain. a ai con si fab own, ash some. Hate WF drow wt
pitt taald mpener ony apt tauon ee. 20, wahers aiid. 9. norxse, myd
& ton oye, Bolton bdo, Aeron, @ Yhsno, Sadee oni, ag: tad nace; Nien
n ent tA -daighno Teh ad t9 Bieiled, «4, ada ROR, ant enotsovedtin
: “ob ‘emt met, poarorta hah pt ,oavhy yolod saw yaombleued, odd sila
_ “ptaenere oven detisag oct ane tity tart 08 tootde tM),biee tah
"Phaseerg gow ode engi" ,hedea, Tiigalekg oft ro% vesroeea: tobad”
a odsa, sdoehde IY bine aodd gombas ted, mad tah, war atte a bes |
rotienes ht -molsoetie Lor
he ey ik
nt a? | nmastante whi wlery Sede bidedam bow nthe bi A hin ke i «
“re * ood aad oo" (tie ae see} bien ene oat ~ : ¥ efi . é
“elton see “tua ait aes eae wae
objects” are insufficient. Jourden vy. Patterson, 10? Bien, 602,
604; Hutchinson v, Whitmore, 95 Mich. 592, 593; Crabtree vy. Van~
hoozier, 53 Ko. App. 405, 411, The evidence was not of euch a
Gheracter that it was wholly inadsiesible for any purpose whatever,
Tt was competent evidence if the proper parties nad bean present,
The attorney for the defendant should have made hie objection in
Pegard to the parties specific when he was questioned in that res-
pect. Instead of doing that he abandoned the objection in reference
to the parties and obfected generally,
Tt te further contended by counsel for the defendant
that the court erred in persitting the trial attorney for the piaine
“eter in hie argument to the jury to refer to the fact that the ehavf-
feur of the taxiead was under arrest for about two hours after the
‘accident.
the obly objection that wan made on the trial by the
Brial attorney for the defendant to this argunent was that there was
“he evidence to show that for two hours he was kept in the custeday
a the police officer,“
a
4
cal
é
We think that there was evidence on whieh the argument
Wd be based. Furthermore, as was suid in the case of Henry yx.
ea that every lt ceakahuaiel of low or of faet will have the
of exciting improper prejudices, The inetructions of the
and the goo4 senge of a competent jury ore a sufficl ent pro-
ign agatnot ordinary errors of statement and falee arguments of
wn se! «* The reeerd showe that the verdict of the jury wae not the
D t of passion or prejudice, for they anewered “Ko” to « epeetal
atory as to whether the taxieab was wantonly and wilfully
ageinst the plaintirr, Moreover, the asount of the verdiot
negatives the idea of Passion or prejudice,
Counsel for the sefendant further contend that the
is excessive; that the amount of the verdict is “uneonscton«
In our opinion the contention is net eorreat. ‘The only
.
duo 2o2YEww a ot “asoot
.808 oe SOL , mone tds nn by reae a}
bast _ (see ey ae cee
-jepeente aeed bast shane reaots, out, ata no vanes ant a . pe Oc hs
ane meitontde ola shexs ave bigots saa tah, Le set ut eg: .
oant tad at honolteoup acy od cede ottioage pntines oat oa =
soneceter as aetioade edt heaohaeda om tant parted to basses anil i
veh foreney, basootss hem nohiae a
ae Aix ean! te
Zz af 4
“ taabae red, 9 x2 x0? favmwos we oben sno qortra? ot at
wacko La, ont, 70%, xensosts, ie tet nat nated tecog aa howre “gaueb oft gt
~tuesle ant jest sont ong oe wet 03 emt edt of Sevosure ta ott am
erupd_ ows suode x0 deere renew naw v dae tend ‘ate s
oy “a “aes
pil x0 92a,
* a toknt ia ne. ‘oham ane + basis 1 ‘nolsvetito lite este”
sans. any seperate ales val jnahoe eb ont teh. conned ‘a
von wodia of gorebive |
Ww ges tite dotteq ede
$e sagt en “hb Ret Ho aonebive anv = she daeed aw ie
«x xuaait To waco ont ob blow exw en — “bea
ad of ton ot $i ,boe net RE" 080. ait 7 ’
‘gxa evad Ethw ¢eet Xo we WET te puinacnennaii ure, tas, ~
eaia Xo! sto beoneaend ott sasathartors memonqel, iba ioik .
weit dan to Pete @ ate orth tapangmeo. ete onmon, boon ei
‘ye wae tm pofe't how dasmetete ‘to eters ctsath O78 fe Is ht
out “tom Baw cunt oa? Te totbtey alt tat erent Pree edt eee
tans to 2
sok Maat nenownna, nod tot vendbarbeng He setenee aor
yrodagort
ea arteries
Yh at aie deal aa tant eaw od exw ome 0
fehoow
“anteater nit NPSL 8
gornany eft to tegen 247) anne ten hs id
Pe yp OER, _ Cgices # rare tit Sas wes we
iat tankdy Heedao, BOGAN, snabae te Mo nat xo Sons ; “4
sstanmnaa’ ab ser 38 OO Sey oe
aco oft mol
giao oct Laithdvniis Aon. 4 ot a ag nied saunas eines Ra amet” r
AM Oe Be
ey ea)
ee ty
—_
Physician who testified in regard te the injuries of the plaintiff
wae the physician who attended the plaintiff, He temtified that
he saw her at her heme at shout 11:30 o'clock the alent of the aa-
ident; that he feund her bruised terribly ail over the bedy and
in a state of nervous shock; that she had « laceration of the right
knee stout half an inch deep, extending to about four inches below
the knee: marked contusion about the mee joint, hematoma around the
Joint, contuelons on the right arm ond hip, and a deep laceration of
the right orm; aleo a deep laceration of the right thigh, extending
te the hip and about three or four laches below it; that she had a
fracture of the right rib in the axillary line; that she had a two
inch laceration of the chin sbout half om inch deep; thet ehe wae
in a hysterical condition; that there was a fracture of the seventh
Tid on the right side; thet ligamenta were torn away from the hone
om the inner pert of the thigh; that the extensor museles are en
the anterior surface of the thigh; that he saw her eix or seven
times; that she was about sixty-five er seventy years old and that
she impreved slowly om seeount ef her age; that during this time she
‘Was absolutely helpless and in a great den) of pain and adilacomfort;
that she had nurses; thet she still has some imp and that 1t will
be permanent; that while he was treating her she had intense pain
ig
me would nerem it touched,
the plaintiff testified that for a time she walked with
Putches and later with a cane; that she susferea pain; that she
taken care of like she wae an infent,
For the reasons stated the Judgment of the trial court
® affirmed,
Sly, P. J,, and Matehett, J., oconeur,
Te re ee ee siathieey? <a
toed beLtivens eH | Wietmhe TY wad heteette ote nebobwen ,
~-o9 od? ‘to Fag ta ont avo toto Ovitt shote to ‘eubd ell te vcater!
‘bin ebod sir 4ore tte _iabrted boo hese tot hiwot of pes teas
ida TP eee ey ba
tig tt ait Vo dotveresal 2 had ene dads rato ests evertes te state a
wolsd wessat wot 2u0%e od aaihanexe G008 ‘donk oy ‘ted suede oun 8
oat bawote amedama pimikot, oe sed eas toda solnuaoe pesteass send
he eA Ps te et re Me
te "nobdouenat qneb 8 , hewn , ghd has ts tay oat 80 9
4
tI RSE aoictat
galhoesze Hast trig dx esta to aotewteoa! qeok s oote. ite tight
a bad oda sade yak woled asdomt wer <¢ ooustd suode haw wee
* gwd @ Rad one sos jomke erekibes end nt dix tayia oat ia cat
gow ode add pqo0b tond no isd tuede mba ods re pelble 4
sitive sit 6 deudoatt a aaw oveds dadd jnoitibaon Leokesseed a
eao¢ ed? movl yeva artot otow adanemeghl sed? eh te she ole ‘0
‘Mid vile Cetdaiwceindtad da dddd Digldl de Ve vien conn outs
were co xhe ved wae wr Cadt pay ttt ete wea'taud eo
tect hay bho a1a0y Yawved To av Et~ydete swede wow orf fads jee
eee emis aldé galewh decd poge ted to tavesen ao ‘qhera la ‘bowsreiil -
joaoegnekh haw wiag to Laeh gaety & OF bots waniatod Ylotutonda
iiby tidadd ban yatl cone eat SERte ode Soule alien te»
aby aires al bet pate hoon! wena saw scaladeneitonndl Phew ne oree
OD Ga se Ele MO Tc) Pan ito
; vison *"Keldowoe 4a \tuow |
ee hea Mania fe tht LORE. Ls ae
ad be boxten ite omty ® 101 ‘tat ‘be Filed Yisalase ot at mM: *
“sede take ithng borw'tive asin eit yom Ad meee, tote ee
Uy
My uw
sdawttek ae naw ose “ot Ye org ngatet
nonaet ont % ‘
Fxs00 e tates ait te tn ‘tnomabut ¢ as botnee be ret sae be ne a at
Pers
‘ ~OTMR TEA Le the ey PERE RE isi aie, Recah eI’ digas oe ‘ey Al a gti ot in Pe iy ; at Sk My
Ptah was eS en ed TEN Ae ee
| . jh g BS Reta athe oahu ve
emmae® a, Pega gt vce
wth aromephaane Mins Satie “ett comnaat a
wick ity call # ca) jar teosune “ ‘4
q 4) Me : ale ay sa i oc
sith dente
ia pe oad anon cant aotabae hte j
hie aR. lh i yt BR ree Ta
198 - 313350
STBVART 2, SBAMAN,
Appellant,
~~
APPEAL FROM SUPERIOR COURT
OF COOK COURTY.
v8.
BAST ST. LOUIS COTTON GIL
Appellee. ) QAA TA wag 3
he: entin Lo
Ske, 2S
MH, JUSTICE JORNSTON WELIVERED THE OPINION OF THE COURT.
Thie is an eetion brought by Stewart ©. Seaman, the
Plaintiff, to recover from the Bast Ot. Louie Cotton 611 Company,
the defendant, two bonuses of 910,000 each, which the plaintirr
alleges the defendant sgreed to pay to the plaintiff for developing
& process for a profitable use hy the defendant of cotton fibres,
The ease wae tried belore the court witheut a jury.
(“The court found in faver of the defendant and entered judgment on
the finding, ¥rom the judgment the piaintiff has proseeuted this
' The plaintiff claims the first henne aiden the fallow-
Ang written contract: |
"EASY ST, LOUIS COTTON OIL G.,
NATIONAL STOCK YARDS, ILL.
April 15, 1019.
Br. Stewart @. Seaman,
17 Battery Place,
Hew York City.
Dear Sir: s
Confirming our verbal agreement, we provose to Loy
your services, effective today, and if necessary until the let
of July, 1919, at the rate of $750.00 per month, In the event
+f your vork having been completed before that time your services
_ +&04 compensation therefor shall cease.
You are to give us your full time for the investigation
of a profitable use for our fibre, Such use to be determined
ay by the operation of our plant for six montha and ite con-
operation after that time. We are to be the sole judges
_ &@ to whether any use you may discover and present to us may be
_ sufficiently profitable to start the operation of our plant and
dn the event of our having operated the plant for six months
4 Vo continuing to operate it, you are to receive a eash bonus of
- 926,000 in addition to the salary of $750.60 per month to be
ay «
Me
ge ria ‘poten wom e came ‘
| rao 20d to |
saiiedhy @ a Gira \oanie \ek das s k apenas sue “ett b ahs .
ee Do she a A aed
Pe peer ame Pennie SS a Ht ne SR PEK, SELES ae aa dea A
bo Bi e wick Neh: mae iatae Lions ‘ie
“8009 tg to ae iso ao camy ze NOR, worrent oft
RE Sh RN SR . 1 SEN, Peal fuk i ‘
gle vdaaben 2 @savegs er rniveed! anand re ay’ Haat ) pee is att
‘\emiqiio® LES ReVF oh etiot 98 Foot ont “moet eovVeout ot. thibah
{ Ps ie 4
asin oi # ait sae 006 ote te seeunod pre eeT,
SOE. ie ary nabastoh ait 63s
“3 tig io cote nie
Se Se
Bre et ig ae ee
weet, r ‘duosé aw rue. ‘sat “oseted, hekas, naw apie WME ou 00s: nig
ae snomunwt berets hae A ve ahd to Sega ak, dame’. Amana
i abs Besuossery aed Mttalasg eat om hat, aad Bae, Rt
ne Yh ies Peay aha amnesia tae iets he
tat asi, ated Mids akadg OMB oo ete
- ie hak bpandnee, senehen
1 9 10 orso9 em ero Bi seam were'to® Bs wow
ai + ebed iE A ots my Ph ee ty inn awe 2m er
u win 1 ieee pn a oe ees
. ae
«
Pike he defi Phe
cn
“fet ogi fn
santnannestii” one ‘not okt ite’ aye en ae sient
1 | poi igh pp ow oe ah + ewe * ke oP eve: iy
Bil ooo wis Sma siesom ase % a4 red dawege. wel '
wll. gontyt efen a2it ed oe eau ae ys Or wor
yi! «= sage Yat ow OF Toeaetg pre Tevoesth yam Hoy. ;
TAM hon tnafg wire ‘to molksaraqe sid
|| edgcom xin 10% gaety ont bo tate g
*o aimed teas w ovidowe of OH WOE y
e¢ of tava tq conte to edie walt oo rape he at 200, 00%
paid you during your research.
Ve are te reimburse you for any expenses inourred in
the said research but any expenditures that may involve an amount
in excess of $280.00 must first be referred to use fer ow approval
before such expenditures are made. You are also to be reime
bursed for any expenditures for materiale, supplies or equipment
necessary for investigation.
All data and information which moy be the reeult of
ig investigation or any patente that may result frow it, are
o be the exclusive property of the Bast O¢. Louls Getton O41
Company. You are to conduet the investigation in such manner as
ee may deem best and all data and information which you may ob-
ain ies to be of a confidential nature and to be given only to
the East St. Louie Gatton 012 Company.
It must be understood that no use could be made of
the fibre unless the mill is running te the eapacity ef at least
an output of fifty tense per day.
Yours very pte
Bast St. Lowls Cottom O11 Co.,
By J. 9%, Stull,
Accepted by Viee Pree. & Gen. higr.
&. &, Seaman,”
The plaintiff claimed the second bonus under an ale
leged oral contract in whieh the defendant agreed that if the
Plaintiff would continue in the defendant's employ after the ex-
Piration of the first contract, the defendant would pay the plain-
tiff an additionsl cash bonus of $10,000 when the first cash bonus
of $16,000 was payable, namely, after the defendant's plant hed
deen in operation for six months and had continued to operate
thereafter.
The defendant alleges that the plaintiff dia not “in
and by bie investigation ef a profitable use for the fibre manu-
*faetured by the defendant, and as a result theree!, dbecover and
present te the defendant a profitable use for such fibre manufac.
tured by the defendant; that the defendant never determined that
the Plaintiff had discovered ani presented to the defendant a
profitable use for the fibre aunufactured by the defendant by
the operation of its plant for cix months after the presentation
te the defendant of the use for seid fibre discovered by the
:
tiff er otherwise; that the defendant never operated its
Plant for six months after the presentation to the defendant
renee wey ants " stag
ak beuvyent sesesgxe qua tet wey Cetwemtet ef ein oF - o
dayoas me evioral yam ist? sointibaogns yr tud , aan eee
fevetauea two vol ey gt bevxetes od ¢avlt feu 00, es ad
emtey o¢ of onde ete vet .ehem tte eoctetibnedxe sone ams |
snag lupe xe “phiqene ,efeletan tt ha art ye wer’
core ea
‘te ¢iveox of% ed yam fo bir. iettuawiter one at
ota.,¢4 wort ginees you tad? edmateagq you to aott,
£80 aetted elwot .38 tua of? Yo ydseeotq Avie
as tome dove ni Ho hieytdacvat eat fowhson of ote sae
«do you voy dolce moldoare'tat ban atah Lie hae dead yer tf
ot yine covly ad eo? hae otuten 2° £10 mnt oa, & 1d Od |
0 HG ‘marek,
te abam of Hivow ear oa thas beotethen ef Jeue on: at
geact ta to b alaaeiesw ons of galanert sy itis out see Sow “a ene
‘ pee aa. anes bl ap deeq sure hued
hired Vaov etpelt
— fio aoig9p Dire t@ sak i
Ie a ee re Pt aa vised
‘
AOE, My A APRT CORN oi ld! a oh wen “hmnake mt
Cha na “tobias aula Badeod wit Betta heabinataeiiaaes Hk nak nrg
edt td vous inetye tavhioton oda dondw ak dadttaes tete hoget
«xe oi? wots Yolqus a! duabag tos of Wt odubdeiod Ofvow Tratmtalg
nthaty od? yoq Bivow Inka tes ol} ,somrgaon Yet etd Yo mabvarke
auned dase dexhi odd oodw 000,018 Yo abled Mees condbeinhe ae peed
hed tek ottaohew'teh acd aedte ,etnawn po tdeyag saw 000, 000%
eiereae of beuntiiacs hat bas aladmh ate aniuheriorataen’ ab aed
Saiialied seo umotentt
ae? ton ha binges ent ae ae se
he he
test hentawetod thver basis teh: ast easth’ pene
Og geubinetteb' nd of Pith bit bist etevone,
ef the use of said fibre discovered by the plaintiff in and about
the utilization of said use, nor did the defendant continue auch
operation after said six months; that the defendant did net at
the expiration of said three months, or at any time, promise the
plaintiff that if he woul’ continue in the employ ef the defendant
at a salary of $750.00 per month, or any other sum, « further bonus
ef $10,000 would be paid te him, and that the plaintiff 414 net, in
Feliance upon and in accordance with any such promise, continue in
the employ of the defendant ao alleged; that the defendant has paid
te the plaintiff all of the salary, compensation, and consideration
‘At agreed to pay him for all his services in saia declaration re-
ferred to, that vere earned by the plaintiff and ever became due te
him from the defendant, and that the defendant i not indebted to
the plaintiff in any oum whotaoever,"
The controlling questions in the case are questions ef
‘fact. To state and discuss in detail all the evidence would unduly
extend this opinion, There is conflict in the evidence on some of
me material Lesues, but according to our interpretation of the
‘evidence, the preponderance of the evidence clearly establishes the
‘following essential facts: ‘The plaintiff was an expert chemist.
he defendant company, which was owned and controlled by Armour &
any, of Chicago, Illinois, and which was iocated at Kast St,
is, Iliijnois, primarily was a cotton seed ofl mill. John Walter
was the vice-president and general manager of the defendant
- In the precess of extracting o11 from cotton seed, it is
sary to remove the cotton fibres that adhere to the cotton seed
ie done by means of a machine known aa a cotton Llinter, which
the lint from the seed by centrifugal force without “breaking
F injuring the seed," All of the lint is net removed when the seed
) un through the linter machines the first time, and the seed is
; ‘through the machine a second time to remove the fibres still
tuode baa al Yritakely eda yd bone voon th onda bien 0 ons vont
ae puaitagg intabae ted ade, nah. 59m. ro bhew to motdan asia *
| He, Poe. dLE A amb ite koe ode add yectaom ate tna etn makers
ws eae “a hinotg , Oats Yee dat *e. a tuléapm pesds, Adae, ‘he “nobdaxd oon
toadae ted 26t eo yedqnm ot ae aut it00 btwoy, od uu saad ‘rdvata
anand ediiu't 4 ae The Yan to. ddaom eg, 04,0808. 20 yutae ie
Mey st sehen *
“ee toa Bib Vibtatale ods sata bre m gihed of biog od ptwow :
eek awnts ties ‘(etkoorq owe “ae ide apashre90e ak. nm megs © ° cad
bing aad taahaeted od? soit phoue ito am tnabaniae xslt Bvt ene
tiohtazebionno bine <TR SOO R: “gigne Lae ont te ‘Le witatase ‘cual
“02 netiarnlooh blag af agplyien ald LLa tot mis we sl one al
of ogh smnood “ave hime Vi ilsate ta ede wd hemtee eer, etal, 109 boxe
of Detdehsd ton el dawheetoh edt past haw ,dnahew toh ef? month r
*, Sere qu dn aie wpe). gon ail Vibtetode &
to ponroniane ote eane sit al asoitnoup part. ae Aeron dy
Xiubow biuow sxeebive edt Lie {Lote ak snth Mecenensaie
30 omen m0 vondive ed? ak toALaee. eb. oxect, seaceaaanciun anid
8 To modsedacqnetat we of naiitosee ded earns Loksopem @
ald pace lldntas ylsenty oanvhive aie to sone ke bIQgGetg ne a aos ° |
-tehuedn dxeqxe as saw Ytitalaty aaT sates't Lotinnens yatwont
8 twomts Yd beiLouton has Bese sew dotdw yyanqaeo fashae tab e
«18 tanh do betaoel aan dose ono, ,esoahsad, ein. mene
tredioW ooh, Adis Lie boos satios w.saw qhivemiug pehemk sel
_ MabAeTAd 209 To TeysnKe LoToMS han saehtnoweooky om amtite
wl gh bane soeten mort Sto. gattentéxe, Xo, aamporg weld at), een a
home nottes edd of oredhe ted. aan kt notion: eae prone « tia 2a¢e ‘
ety \yotukt mosis » Qn avoml taleans # Ko ouayend emghiatons
Baiieerd tvecdtw soxo? Soputiasaee yo Sooe at mart dmbimdemoyas
booe 1h nes hovouns ton ef taht ont Teka. ™ pone ent eater bed
at boas oift bon oaks $0727 odd woutionm eetahh ealt Myre mr
ABER soNEE't oat ovgaen of one haeweR Mm NE .
adhering to the seed. ‘the cotton fibres which are removed when the
seed ie rum through the linter machines the first time are called in
the trade first cut iinters, and the fibres removed the seeond time
are called second cut Llinters, These linters were a standard product
te an ofl mili. “here was always a market for them. After the first
an4 second evut linters are removed from the cotton seed, the seed ie
put through hullers where it is crushed for the purpose of separating
the meate contained in the eonter of the seed fram the shell and sueh
aéhering cotton fibres az still remain, The separation of the meate
from the shell is accompiisied by shaking sereene through woieh the
Meats fali, and on which{the ateli and fibrous mass collieet and then
fall off. ‘this fibrous mass is imown as cotton hulle. The cotton
hulle may then be ground by one of many preaesses for the pwurpese of
Fenoving atill another grade of evtten fibre whieh: is known as eetten
hwli fibre. ‘This cotton hull fibre is distinguished from the first
a2@ second cut linters which are renoved from the seed and not frem
the hull, im that it is usually somewhat shorter and often contains
‘ on seed shell, Sarly in the Yerld war the demand for cotten lin-
in the manufecture ef munitions increased to such an extent that
. Was a shortage ef cotton Linters, and a large demand arose fer
eotton bull fibre in the manufacture of munitions, The defendant
n inte contracts with munition companies ‘eo furniah them
eotten hull fibre. In order to fill these contracts the defend-
erected # separate cotton hull fibre plant at Zast St, Lowls, at
appreximately ef half a miliion dellars, ‘The maximum daily
diy of thie plant was from 250 to 300 tons. When the war was
the demand for cotton hull fibre for manufacturing munitione
« Prior to prohibition the defendant had sold the hulls te
: t leries at Peoria, [llineis, where they were mixed with refuse
M the distilleries and used as w feed for cattle. After prohibi-
B vent into effeet this market for the hulie was closed and there
|
Kt
cars
SS SS — Se et —
toutote Biabasge a ovw nxstall vacdt | f
dort eo cotta ment *o% fodven b ay Le tae cred? wnbeciyer
UE boew ont ,Soeu Moston Ad¥ wort Havenes den OTL peas
gabseratos to adeqmwe ont +0 peldwet at FL otortw vi tut ityuiorrins
dove Bas tfora ote mex't beer ene 9 cetiee wey th wh tdi bivon |
ateom oct ‘Yo wotteteqes watt | knwo Citta ee wondEY ngtvoy hihi
“grit Relow quote iveroe yibine YW beilediqoonne ak Ctwithl! with! al
noid an Toolsod wate awovdtr bow Lhe icra tite. 80 han toa eal
' gediod Ht Je Ttet Wedd oo wm bwomd ok wean avorvrhy eter tte
Lo saouteg S20 YO? Sones uTe’ Yh “to Bao Ye Bevery ad mene ta wit
nesien an cvoal at code otk? mbes to ebaty xidroma. ete pawl
Sexk? sit? mort bedledeyaisets eb ordi? Crud modded ata wai «
0
‘poe? sot ban howe off vor’? bevouet o@e he Site wrodehe ‘tao
bntadaon wetto tue sal eede podwsiton Vitewew af oe ‘yaw Pe ti
ati Moston Tet bnewoh 9 Yew beeow ond wt vito, Ltede howd fe:
dete Yoodee nw’ Howe od bewcotont vaots fae Lo ornibaYwnne ames
‘tat aeorn Bonu ‘swial os hater ‘late tiehe nodioe ot Spa dcoide! a
‘tradi ted ett lene te totgin Ye ote tentunen ont baal yrdk
ena teberet o> woludeimie mots team “ity bo wiieatdines ti
aAebtod Gat edowntned wesrd’ CLeX Ot Swhve wk Lordity ietidd! weds welll
te’ jabived (70 taalt da die te exert Love cote! atarcaion a wioone |
‘qdhab munbean off etek£on nokiLin b Theil te Utedubrengee!
page gale este aH Vener ob a O88 mor Riv Doikity’ ‘he ww
* pio te Hoa galt ied oe tinct xo" eit Pe LRiut arene Sail om e
9s efiwe ext b1d0 bait Shwbian'ten ocd KeAP ie sitety bt aoae hil
pewter detw Soctn exbie yous erode \abontier | ab ta ore cehs
wkd tebe Yor ta seitten “vot bet & as Bowe bit bothetereeinw
o'tndd bee bebo to waw w6tii wie” 4o% re aS
was no other practicable market for the emie of the hwlie. In cone
sequence of the lack of a market for cotton hull fibre and ecotton
hulls, the cotton hull fibre plant of the defendant was idle, thera.
by causing a lose to the defendant of about $300 a day. To remedy
these conditions the defendant was endeavering to Sind a new use
for the cotton hull fibre. With thie end in view, Stull, the vice —
president of the defendant company, consulted thé plaintiff, Stull
@xplained the entire situation te the plaintiff and asked the plaine
tiff if he thought he could find a use to whieh the eottem hull fibre
could be put, so as to afford the defendant a continuous market for
. the cotton hull fibre. The pluintiff stated that he was confident
he could find « use for the cotton hull fibre and suggested the
: possibility of using it for the manufacture oF Goliulose acetate,
Moving picture flim, artificial silk, leequer and vaver. The
plaintiff was shown through the cetten hull fibre plant of the de-
“fendant anf also the defendant's of2 mill, Tae cotton hill fibre
: Plant was idle at that time, As he went through the cotten hull
‘fibre Plant the plaintiff pulled apart numerous bales and inspected
the eotton hull fibre, and from time to time “advanced some of his
ideas." ¥inally the contract of April 15, 1919, heretofore set out,
was entered into between the plaintiff and the defendant, and the
Plaintiff at once began experimenting with the eotton hull fibre
With o view to making a successful paper pulp for the manufacture
: Paper. The defendant had to equipment for making the pulp, and
Was the intention of the defendant, if the process proved suc-
#eful, to build « plant for that purpose. The plaintiff con-
ea hie experiments with a view to making pulp paver out of the
e tton hull fibre at the Little Laboratery in Boston, Kassachusetts,
the Penobscot Chemical Fibre Company at Great Yorks, Maine,
. 4efendant shinped cotten hull fibre to the plaintilf at beth
of those places to be used by the plaintiff in his experimente,
ongo' al seldnst seit To ofee ead eet 2enltim oldesttonaa ctnvtte om a
notion fm etdtY Ltud notiwe ao doatcmen a Yo alte £) esto i 08
~o1edd ohh new tnehaates ont Ye fante oedst Last mods oe pore
ybonen of sab # 008% taeda: to daadueteh edt Od, anol a gateund x !
ee wen g halt ot pakvavassite Kae. inate tab est eto Ls thans, sued
ately ed? kinda ywole at baw ees AekY ond EY Lie odte0 edit
List@ .Viltatedg sit dadivatoe ,yaaquen tamhanted oot lo tamhlewn
atkata eat? bevax hae Wb aletq oul ad soltautha ontine oct Bembmkens
(ptdkt Lyd moltos emt coda ed sowie bat'Y Bieow am Sutgueds wit Th
i sot soyxtmme twowstenes @ sanabwe tel eit bteTin ot ae om (dee ad fiitew
dapdi taco now ort seule homeda TTRaLade eal ome et tat mostos! eat
ont Netoveyne haw wed? Lind motion ed cet wal iw hat ae
sinsens eaoinifes “te artwden terres bait wor eR gakey to: behddes
eek sexed bee sergeant, ile te bet ese vest orutoe nate
<0 oat Xo Sante weed Ede. jeodtivos ente: Aoarertg: weeacia, naw Theat f
eed fii anda en wet yh ie fdo #7 snmbie ten end: oute Baw Pome .
Lind aotsoo vid dawotts, teow os wa omy tat ge otbt aw dash
betvogsal has eelad myoemrm suedan fo Lang wssnhade cad denaidieg 4 ts
nin le omen beonemheY ambit ot: ombd mar mr MMA Adusd aotspa amp
200 fem exelotomed , RAL 2h Lingh te duwttnop nus isin Naaobn
ocd hie 4 daaho ted, add hrs vandenehiaigiiaeaaiae 7
“on Rovety aepoorg, ost TR sfuabastieb wit we motymesat ante
ato Tt Palate oT seaowtg taut TOY toute ork
ott to two seqee atu patie of ety odhw: eden spee wal tevinast
\aileeusionreati ,cosne® ab yrodaTedud 9het Da wily ae weet Ete nade
wink jena seone: 0 a qwe® edEN Knoliond Focndonet o i
iad te Tetsaletn wits oF onset Lh thishan'tah sdf
‘the plaintiff did met use cotton Linters in his experiments. After
; experimenting for some time the plaintiff? eonvineed Stull that he
‘ had developed a process for making @ pulp out of the cotton huh
fibre that cowld be used successfully for manufacturing paper, The
pleintirr was enthustastie sbout the procesn and ec war Stull, S6
: enthusiastic wae Stull thet he agreed to give the plaintiff an ade
ditional bonus of $10,000 on the same terms subetantially ae the
“first bonus. It was kmown to both the plaintiry and Stull that
“other companies, namely, the Southern O42 Company and the Amertean
Gotten 012 Company, were making experiments with cottom fibres with
8 view to using the product in uenuFacturing paper; and the plsine
“ure and Stull realized that ae a business proposition neither the
defendant nor the other companies could donduet an independent
ess with suecessa, Hegotiations therefore were begun between
“te GSeuthern Cotten Gil Company, the Amorigan Cotton 642 Cowp any
the defendant fer the purpose of wilting. Heither the Southern
Patton 011 Company nor the American Cotten O12 Company had any
e mo hwll fibre; they had eotten linters, Furthermore, it was
that the United States Government had a tremendous stock of
linters on hand, an4 that the priee of cotton linters had
cheap, According to the téstimeany of the Plaintiff Hoekeli,
sentative of the Seutharn Getten 641 Company, otate? that his
iy had burned up a large amount of their cotton linters rather
to continue to pay insurance on them. In these clrounstances
e Pleintirfr and the defendant decided te abandon the plan
enting with cotton hull fibre and to Join with the
of ex»
other two
mies in experimenting with cotton linters, At Hopewell,
» there was a large Supply ¢f eotten lintera and there was
there owned by the Dupont Compony which could be rented fer
eFimenting with cotton linters, In this connection the plain-
a testiries as follows: !
any
WIA attominvgee etd at mxerals aotton ean dom bth Whealetney
‘em tad? Livha Bosrnends Veitatnle ocd el? omen eek gehen sllad G :
thei AGatoe Seb Le two Glna-e Dabinw tet eupnonq a bomokeyon id
att ° .asqeq watreten'tuada Ot qldu tensor: Dt od bku0 8 howe
of —. ERNE Hae ok bee eHonera met taeda: okinodegsiag eam, : tate
hin Wide te hea fer nate wey nd: Roonpe! ent same -LLesB ome ehtonhenth
edt an ¢liotiovdadie gered some oct) me 000,028 ta enmedsitninhit
gait Chee Ror Vubhide te en wited nt smamt eam Poe A
peokeem oft See yon ged Lh0 mw ditye? adh a elonine ke daneeey wa
‘dtiw gardlt netics vtiw eduemiaegas yaldom etow,. qarqmgd, ko. mod: |
wale fe dd bam pregne wabor ew tonam mb domherg odd gemknn, wt on
odd tee bon meth iongexy Reweterd « an aasle Doakdaos lambda ane '
tmepasested ae tookae® Ninos selsaguog edie add, yom tas
ardwted tryed sow WKeletnds Gaoksaltoges ,etevous tke quemss
reed £20 mITG9 sow fiom alt enaged- fhe a085 0) mrodines :
bd os Oct andttod ants dee bo seoqiwg ene oT aban ton |
“ye Reta en eer EDS weteeD amoizegh wxlt wo
‘naw oh otomrectyt .ecatets median hart ynult: ett, bad
te sede nirobnbante o Best snomnnered vodng® hod Lat et sath ne
Ret @eerokl modoad to oot add toe fame Danis WO OXDsARS, Me :
Theta se, Yitsate ke Whe Te yr eeed af? a Bak bt op tn
eid tasty Sesete -Chigned £20 matioo amontwe® att Re mvbhcatawmes |
eertor we date aetoy whore ty Seon ourad tae arr: Ba |
“nein tautro's to omits NE” amt ve Sonaneamk ym oo aoe
“ko “te hake Wie ated of Heh tede ee a
ot testto wld oo bw mkot oF paw eet: Lid angie: Aa a8
(tkewaqel 2A wiih S metding aegw Rake amet Ung ahi
any erat bee wtOrmeT aodtoe to phous ote Lm mam OHM: 9@
xt Betner od bLwed ote atc ga tsa od 1g otamm, ments tie
ih st ont eon able AT yaeeeke: enpatisieses 7 ' ”
7 STAR Kh Seubimdiatin wes ah aime
"Romenber, the hull fibre does rot have to be out aff of
the cottan hulle, but cottom linters fust be out of f from the
eotton seedy #0 it wae » commereial condition that exletea at
the ent of 1919 when we tock over the Dupont property, that br,
Haskell atated «-- meant that we wowld have te switeh our raw
material from cotten hull fibres to eotten linters and aeked
at that mecting in Savannah whether I knew if we eould cook
cotton linters making ae satlafactory a preduet ae we hed in
cocking cotton hQli fibre. I told nim that I theaght we could
do #0; but what theese interests wanted was net an opinien but
an exact test." i
She combination of the three companies was formed and
the plaintiff? was sont to Mepewell as agent of the combination,
‘The salary of the plaintiff was advanced by the defendant each
‘Month, and the other two companies paid the defendant on the basis
of one-third each, Gubsequently in ware, 1920, the three came
panies were crammised inte a company mown as the Stamsoeott Com
“pany. Stull resigned from the defendant company and beesme the
general sales manager of the Stamsocott Sompany, ‘Thore vas no
interruption or change in the management of the business or the
‘Operating of the plant when the Gtameocett Compatry wae organised.
: business and operation of the plant ecentinweda ag it had before
1
ae
te
the plaintiff was agent of the three eoupanies, The plaine
Temainad in the expley of the Stamsocett Company and his
wae lnoressed te 9900 a month. By Hare, 1920, the
if developed a pulp which was considered good enough to
sent to the trade and the Stamsocott Company began the sale
F the pulp. the same process exactly was used by the plaintiff
he was agent for the three compunies and when he was in the
ent of the Stamsecott Company in developing the cotten
into pulp, a8 wae used in develoging the cotton hull
into pulp. The Stamaocott Company used some cotton hull
as well as estton lintere, The business at Hopewell cone
aw from Hareh, 1919, te June, 1923, Im 1991 the plant was
ut down for five or seven months, In 1923 it was permanently
te Vie dye od o. oven fon neek ead ht ‘Ried ond
odd act. The 2 at vient nag 14 an sod Sie, dud. :
a Redo ixw bai gd ee hades |
ot gat bt csaeant 8 or swe
ee Lene eve Share oF tant Me =m Be kfokee!
hectpa bane winetaht aodies of aantit Lind | ane wert ioigedte
avon S£eroo ys “E wens _ eat one Ban tenen dace.
ak bod ar ne mene’ Mt %o! asta An, Be, Lie
piyee ow degpetis I taal wd bE gegen ae ey
ond agiatge sa toa. + Aer, Besa “aioonsdak saul io a
sedvones f
baa bette’ vow _—r emtdy booed te sotbent non bl
ey Jashivn'ted etd ee disbinns’ naw ~ i ig wees Sh
eave te BASS *
eines ous ao L aaniannd ad haw eo kan00 ove aside alt
“ea ‘ear’ ‘le “eile thoscomat® wi te’ semen |
eine NS ath bie Pa
eit 40 Ba mandosed a to od eat “a ‘epande te os
wee ae Rae yi ca si
“shed itaaie bd hoomsesreth Libinengndal ott ede tule a at
alate wet Satan or iol’ Wi, pod tov
hee ‘bale — cicsaioee 1 SATB le aah te wi
wh ah snag 7
sai a aie ial Wilde Ds 1 Weil dle! omnis vay aot ange,
Hos? a0 ane BAgatovad at cared Ptonwsmnst oat . 4
j Bh iN ae Ray , eg pon:
tind notes oid gatgotoreh ‘at ‘brew war ae mere ofa |
Lent mation smon® bean ‘einqual “tonomme’
mit Edowrs qa te feeadswd nit “atetatt
ant’ tanta one kook, at atte pe a a
sacl ge
eetaeamaetog ‘Rew 3 eek Pi rani acs
I soved. The business at Nepswell was net succeseful. The Stamsce
) gett Company lest upproxtmately half a million ef dollars. The
{ eetton hull fibre plant of the defendant company at Zest St. Loute
ata net operate, It wae practically idle.
| ¥ron the facta whieh we have stated we are/ef the
epinion that the conclusion necessarily follews that the plaintiff
Ae not entitled te recover,
It is contended by couwisel for the plaintiff that the
dence shows that Stall promised the plaintiff that the contract
the plaintisr ast the defendant would met be affected by
“the Ofganization of the new bueiners at Hopewell. ee do net think
at the prevonderance of the evidence eatabliahes that facet. The
Ntiff testified te that fact, but Stull denies it. Further-
e, there is evidence tending te render probable the testimony of
« Gn June 21, 1922, the plaintiff wrete a letter to the
Stam: eott Company demanding payment from that company of a benus
/ ‘ f $10,000, In the letter he said:
"On Mareh 31, 1919, 1 made a proposal te Mr. Stull, then
| Ylogeprontdent orf the Rast St. Beuka Cotton O11 Company. Sub
S@quently this proposal was modified by the East St. Louts Cote
_ ten Cil Company to pay me a bonus of $10,600 in cash as and when
es h "Btaaeeentt. company, pith sr i cabal tg proaise the rN a
i, The plaintiff further stated im the letter, "the bonus
# deen due and payable to me ince January let, 1921, ‘nder the
tances I am submitting herewith formal request for the pay-
t oF $10,000 in eash with interest from January let, 19m."
From thie letter it is clear that the plaintiff is
it Telying on the contract of April 15, 1919, with the defendant
. a
Bpany, but considers thet contrect as having been merged into
socett Company, He is holding liable only the Stamsocott
But the present action ie against the Best St. Leutis
,
|
SPOILS Ee eae ee oa
rf
i
SS OSE RE RS
Loa, mitten Sr ms
one ts wee ~feftaneoaws 9 ene eaw ikewe gon te eovaiend nn
ee ee Sf EY. %
att: semacioe ‘te coo ae a ‘es Mototerece = eee wi
ohh ‘eineiseeng eww Ce ase are: Aa re
ont ‘ye\ens ow potaga owed ow ae bite. agent ‘eat ee bx
Pe eth ty bath igen we
Vetdahete éah tad? awal tert vllussesoos aotavionas’ edit taltt wie hath
steVOGOT 8 heats itas som.
end dad ith babe fey add x8? feomoe yt hebaesvace el Ps aa he
font tiow oft fade Tritsia lq edd peateecq Shee aaitd even soanne
(“ee hotootian ad For River sasbasiteh end bow Vrasabe Le ve ow
dnids gon eh a8 .Sieweqek te: eyo mand wae ealt to. mt |
ont , 390% tone aeel Masew secedive edd te eoannananeese t/°th
atattie® (sti aelaoh Lint tye , too? tadd 03 pawttomed nbe ata
te You tase ont 4 Lhotong: Reh mee: eH wat hows socebive wl eteati em
eaten asttes « atorw Pedtadese old OROL, +18 nat sD hs
auned « ‘ke eRe geee: deus Kot saowyog guijanaes. eamaued diowe
“thine on wrtod ond ak, “woayont
wedt ;£owee . ot of Laeecetg * oma I (eeen yee Kosai «0° ot
dpi «oer ge iiQ. aotte? ehluot .38 tend out te soabia
“$08 wkwod st tue® oes qd Pedtibem eae hot yt 2-9 wane
mee bus te Hand at OOO, 88) to sumed « oa
oa of se mina ae
sb aw Dee 37 aang
exrod oar? (ter sod ‘edd ak betede tesgty't! sti snabetie pitt
any Keb 4 LBOL peek {Karey ooete pm ad ofdayed bale ast:
hn
syonbuinee add vlad ragailae L eitoe ate . an .
aivet 6#0 tmat ot Soahage wdinom !
~
Getton O11 Company. Furthermore, the plaintiff is demanding pay-
ment from the Stemeccott Compeny ef only one bonus, apoarently
heaving abandoned all cleim for the second bonus, Im this connee-
tion both Ghandler, president of the defeniant company, wnd Koogh,
attorney for Armour and Company, teetified that in conversation
with then the slaintifr oleimed only one bonds, If the contract
with the defendant was marged into the Staneocett aed" oe ax the
Plaintiff himself snys it was, then Stull's promise, if/any legal
effect at ai1, would be binding only on the Stamaocott Company,
whieh (de not a defordant in the gresent action, Gince the Stamec-
« @0tt Company, however, was composed af two other companies basides
“the defendant eompany, it is highly improbable that Stull would ate
tempt to bind the Stamscestt Gompany in the matter of the plaine
4ft's bonus by a more informal oral promise to the plaintiff,
Moreover, sinoe the plaintiff te claiming two bonuses in the prea-
“ent eetion, tt is diffieuwlt to wnderetand why, im bis letter from
“whieh we hove quoted, he refers to Stull's promise ae to ene bonus
only. In ony event the plointiff should have explained why, ace
Srding te his letter, he accepted without protest Gtull's promise
‘te te one bonus enly ont 444 net ineict that Stull sheuld inelude
in the promise the other bonue alee, The ineonaletent sesition
. whieh the plaintiff ploees himself by hie evn letter renders
, ble the etatement in the Latter that Stull promised that
bonus would remain in Terese with the merger,"
Counsel fer the plaintiff further contend that the
on of tie plant at Aepewell by the three companies fer
the plaintirf was acting an agent, and slseo the operation
y the Stamsoeott Company, wae the operation of the plant con-
exp: by the written contract of April 15, 1919, between the
amd the defendant compeny.
In support of thie contention enunsel for the plain-
that the term "fibre® as usok’ tn the contract was used
rey | i
oe gathasaad ek Yitsmtete ont seromredtrart .ganguad £20 mite
yftanse wae yewstod ene eine te eA geno frp onmte oatt Saulsien
“oe attos aise ak ssestod haan ane ‘te sabe fo tel wetoh ad “pa
sige hae .yasquee tet Aste ott Ye oh tong 9 Dhan ies od ao
aotieeteracs mt sau's bettiteos ragaod bas cwowtk 26% whe
_toertaes ont? ‘tt timed sae yes hontato iiadade | wn hae ‘ ;
tek qa ae eo’ Livae woutt , een gh ovee “ateeintat idk ‘
| Yetn qed ‘Sooseneda ext uo ¥ine ‘yadbaid od piuow the te te
sonmsdé end oondé .aotton daonere old nt fonhaoten. @ You it Bi :
eohised weddagnoo teisd Swed te Pevonsios saW ,tevewdd’ ee |
o$@ biuow Lindi dest sidodovamt qitgid af vf qndquey thenae ten ie
antata od “to seiten oad al eae god frovotmest oat bate wee .
Yihende tg add of oeiaorq into Lewietat ete a ve igdod aE
““waexq odd of seammnd od galiivds wi Tivate ty wtf wonbe’(¥s é
movi gotiak oti wi .ydw Aaoderenay of tue Ptean of PE jtotted
armed oae of ne gubunxd a Live® oF exoior df detedp eved
ile herite Len ernst ntwode biewhaee heal tans ‘wid at
! “vat fond Lito ee thors suite” devsdt! eas at | 2 des
er ee ea ees :
“eS tastt sadtnde wadhaek Yi Gats re wkd ROY emerel ‘ .
get eo digas Head one Yd Rhdvoge ere outa 8 te. el
Perea mn eee saaliepabnie wat
Lined take eae to HoLeamnge OH) wn eieigmad: ee $89
add iesornel ones wisi shea’ bial iichidal | onan eet ed
Be BA be ea oo)
aie RSS ahs
oe watt ‘gat xb? Leaanoa mi
fim ite generic sense ond ineluded both eotten linters an! smtton
en fibre; that the words “plant* and "mill," as uwed in the cone
tract, meant a plant or will wherever the defendant might operate
Bas, whether areeted, wiather to be erested, or whether rented frem
er ce ant pe Ss ——" ee
ethers; that at the time the contract was exeeuted the defendant
a had no pulp plant at Masi St. Levis, and that both the plaintiff
* and the defendant contemplated that this plant should be lecated
é, where it could be wost cheaply operated; that the plant at Hepe-
_ ‘Well was operated in the manufaeture of paper pulp discovered by
the plaintirr; that "it would be an unheard of thing if the law
@onclusively that the written contraet of April 15, 1919, w
utually abandoned by the plaintiff and the defendant, ond thet
panies, was an entirely new enterprise which was not contemplated
at the time tnat the contract was exeeuted. We have heretefere
| _ the reasons shown by the evidence why the contract wae
r an omed, and it is not neecesoary to repeat thet evidence, That
t : agreed to the abundonment of the contract 14 shown
by our statement of the evidence. PFurthermore, the fact
subsequently, at the time that the plaintiff severed hie con~
with the Stameocott Company he recognised that the contract
hat been abandoned, has been shown by the letter from #hich we have
0 a, wherein the plaintiff expressly sayn that the contraet was
inte the Staxsoestt Compeny,” and mokes « demand fer paye
it of “the" bonus by that company alone and not by the defendant,
:
y
i}
it
i}
i
ap
} ol
| of
' :
BON vent 2 Soh MNS yc Ls a ee LS Oe ek
:
~sedy bath en mo, Tyan ne a, Se a
Oietege daiwa Janae teh gtd soretedtiy Like 10. dade & Aamve, 9f wih
HOLT Helse soso co ,heloete of oF teadniy ,~hegonee
tanpasted ade heduegxe eaw towitacy adt wade, at to sent soxeate
Foitglaly of dtod sak der Rduod 46 Jaod te tos ke qheg om owt
botanol of bined dawlg 0264, todd bode loned aoe, tuabeetes wat had
angel ts tan kg aut Gut poetetoes ehanade ¢eom od bfwao $4 ooate
Nel fetevernsh gfud seqeq Te eredectuucm od@ wh botetegovant iO
| Wad esis LL Bas Le breodiny ma oF hdwomdt® toe ftpkembeee one
oat nd DON Rte od Rison getien a test ed od, bho od hee
a ya botorvonnd we crating a Ak gables, eon, ome: he obaves ?
i wil, fe: dia shal” Saves BMG Wat a ee * amead :
mine geod? Le Lia.oe ewe Adiitiies a te Reape saw Oe =
awenn sommhire oa jade oh Teteniele nds bashing 2anine !
(Misi G AEAL 2k Ekagh Lo agatteee cds kre ne dealt qlewls ‘
ted? bie yonhuo teh. asld dam Vitestese ont Et heatwiseneln ek Ln
ethno eet alt wd betaveqo Raw dolde , dowoqeR da passin
Heialgnecagn toe, aa vohiv eoiggtetas wer ghetitae ie Rae
oaviotoned eval oY .esyooxe aay doatineo aad dak g
hat Poet Ao eds Yhe eodad ive ant gd aos aagean ed
todd saonshdve fact teaqer oF Yueseen Femud FR ohm Me |
awode nt foettnbe ef8 he fnomebasds ditt oe, hoota oe iy
ton? a2 ,oromnasitmw’ sobnaiive glk Ie Pawns tee mw -
atoo wat Docevea ‘Videmtade wd? fats emhs wate far %
tome aes et steals hoa tegones ot vee erancantt As De a
ove d gw sis hiby ott Botte Lowdd qt mete need wit yhons us ”
nae Pdoutawr ong ted? coed yduaeonote RRR abe Rat ele side if
aye «et Saaek » eoden hate * waseangte Shas cones bel ovat
stnatee’beh ot et Hom te aL teased tay: i | 7
hoten gar teagan watt see jae aa Mane poking Mat
POE a, Ai) AY NT CAA Ee ED PAU eee Pies Vee eR Te
j
i
We do net coneeda, horevar, that the tearm "fibre" ag
4 a 2 in the contract, included cotton linters, ner that the words
tant* sod “mill” meantany plant that the defendant might operate.
| the contrary, we are of the opinion that it clearly appears from
evidence that the fibre econtemilated by the contract was cotton
fibre and not cotton linters; an¢ that the phant or mill ine
was the defendant's cotton hull fibre plant et Uaet 4t. Louds
, hen had been ereeted at a cost sypreximately ef 9500,000 and whieh
Was idle after the war because of the feet that the defendant could
| c find a preritable use for actton hwli fibre.
We do not think that on the facts in the case at bar
yun sel for the plaintiff are justified in contending that the de-
: mt has attempted to nullify the contract by the "device* of
ak mg in a partner or én eo rporating the business," In our epinion
1 evidence clearly establishes the fuct that the plaintiiy end the
2 % by stutual agreement abandoned the contract of April 15,
ie, and that the defendant entered inte a new and diferent enter
t ) with two other companies,
In the view that we have Sakon ef the cage, it wi} not
gary to consider the contention®/ counsel for the plaintiff
| te the prévesiticns of law. It aleo fallews from the cone
nto # thet we hove exvreased, that it is uwnneeessary to determine
, on whether the plaintiff suecesdod im developing » pro-
)weing profitably cotton nul) fibre, Assuning for the sake
% that he 4id, the process was not used by the defendant
plated by the written contract of April 15, 1919, between
ey
Plaintiff and the defendant, but that contract was mutually
and the new enterprise ut Hopevell wae entered into,
Yor the reasons stated the judgment of the trial court
ly, >. J., ond Matchett, J., concur,
tf
"yito ots Gade “took Swen na htae dba yaa
* Wewinee sign dnadentes ont todd ‘tate’ tn ee “ig,
meet wceonye Yreets #2 Sadt aobitye ‘and te oma ww’, me
iy i wuhinnllued ‘Paorian adt ot Batatemordss ordre ‘odd fend te
hice tthe ve heomnai Sas tant wna shaigui ole bes bio inst @
tia’ ‘the G60, 008 a qhotombeatqen eos a” ‘Aha ne deka ell
ut diesidiichail ‘ere dade Pout “ath Ye ‘eeiend tor nde etd & 7
pense soeditt Lted ndttoe You oad otdad Prede's
get $e dung belt ot tant oat me dale Makdd don on ae he te
ee ee ee
“tg Aeutveb euth ooo Peweinde NMe WERE GIN ay SeirqmnneA Wad Sal
aeiwige ww at *,seenkeod ome want tart ocrs ot mit “te “ood tae 1a ay
ee Ce oe ad voile Ltda ved gcthete « im
Sie Ge eT Pee ee
“vit Since oa ‘Win | itt desire unas t's
wits 8ad oret evo Lor a tHE” seas niet shee
oatardten at Ctorneno dia AYE tach \oomadidee &
eeead rr at ineecanintd — it'vid ey
paneer gaw forntaos deel Card” bee suas
NS Saat ende ‘Haw Llowidel Hu ‘wedterediy dow way
lag, aden sh ee tenmcanattcsnth fotaae aaonaon x neh at
aye as 9) wre
Pe aR ae am eS I Peano:
'
260 - 51322
T. 8. GRASPORE HILLINGEY
COMPANY, a corporation,
Appeliece, APPEAL PROM RUWICIFAL
Ve COURT OF CHIC.G0.
gd. BEACH, tracing ae
TRIMSES HAT COMPARY, —
Appellant
&
&
a‘,
Pet
{
MR. JUSTICE JOHMSTOR OSLIVEN<S THE OFINIGH OF THE COURT.
Pnis is am appeal by 5. J. Brash, trading oe Brash
nme Hat Company, the defendant, from a juéguant ugeinet
the defenéant in the eum of $110.50 im un action brought by
the $. B. Gravwford Miliinmery Compeny, the plaintiff, to
recover the price of horses bait braid siieged te heve been
" eblé by the plaintiff te the defendant.
3 The case was tried before the court without a jury.
* The defendant contenic that he never purcheced the
"braids that it @es left oith him om approval; thet he never
— ae that it ¢44 not work up az agreed; ami that 16
mst /gooe quality.
, The only grounds on which the ¢<fendent seke fer a
- reveresi of the judgment are (1) thet the finding of the court
ji menifestly ageinst the weight of the evidence; and (2) that
the jedgment on its fees iz for « lsrgcr amount than ic shown
by the evidence.
* The substanee of the evidence on behalf ef the
Plaintiz® company ia thst the dsfendami called up the plaintiff
‘Sompany by telephone and asked whether the compeny bac amy
hair braid, tinsel edge, of the kind in questions that he,
dagti ae gubsesd qiieatd 2b 12 U6 Lnecen ae ot slat :
cite 24 —, # mast ‘qfacten ten aed + vengeee be:
7 stnchasted 0g3 02 2 wiemtadg ale
sett fuse ¢uaca aie vroteg bated cow nebo af?
“yewan ad da83 ¢Laveigge wo mid se oubvscriobiadll
A oF athe sind edison soaiion —_—— ven
2 40% aaee 5 Anointed il ale
Pe te a i i I Oe
defendant, =s< told that it badg thsi the defendsmt seid he
would like te see some samples; thsi sarnpiee were teken to his
Place of businers; that he eclecte¢ ene piece of braid ond anié
woulé try it ouij thst twe or three Gaye later he wanted te
) , how suck braid the campany Aad af cortain eslers¢ that he
was told; thet he suid “all sighs I will take thems” thet the
raid wes delivered te nims thai he signed a reeeipt fer it
gmé that the bill for it was left with him
| Gm behalf of the cefenéanmi the evicemee ie that the
iis
-
a
Gaff compemy called up the ¢efencumt and seked him if be
7 ld use some braid below Sout; that the <eferdemt seid “bring
\t around and iet us try £4 out;" that when 2 semple was brought
. , him he endd “46 deee not isok right to me; i wiil heave one
‘Of my girks try it out. You coms in in a dey or Gee ond I will
et you une=s" that the brotd ves delivers “on meworandux"
‘BB that the ¢efendant ws told te use whstever he could and to
, ™ she balance; that the braid wae trieé omt and could uot
Be usec; that 1t was imperfect, “rotted somewhere," “ruffled up
Be the wcchine,* and was “reggedy* that about ton days after the
mid had been dolivered the defendant notified the plaintire
‘@empany by letter that the defendont could net use the braid
- asked the plaintiff cempeamy to onli for the braid.
7 im this state of the evidence, we would net ve justified
ix @iaturbing the finding of the court. The court sew and heard
7 . witmessea testify and on the conflicting testimemy decided in
raver of the plaintiff. ‘“e think thet the finding ef the eo rt
' Bot munifestiy ageinat the wcight ef the evidence.
Im regard to the contention of the éefendunt that there
od bise seabsetse aa dee thad ¢2 gana Shed. ee 44
es “3 ceded erew acigqnues Jaxid (26iguek aioe G9E M. vuat &
bkes kaa Blan! te s9eiq ome pudooien aa date [eeentes We ta
of badsaw 94 tagal aye comls te ows dads jdne 2% Yad ntwow @
oa dads gevetes mteones te Sod yaaqeso afd (sheie Tei Ae
ote todd “preste sind Lite U anzas ste“ Stew om bande th
$2 se% fqionot 5 Sannin of dads taba of bowwviied saw a
‘amid délw Wek asy i 40% ciid eat sake a
ed? fa83 94 coneSive sl imobasiss e627 Yo Uaded 0
ed 34 mii Sndag bar denonnted ets ge wekep Emeguas ,
SRERS" biza fame? ons dads 42oee a ieé sie oaon, ose
atiggeet axe haps: a, sede ott “ites 58 ue am. ¢95 pon me
ate ered ifie t 1am 93 sighs Book to samb 32° bikes 8s .
ity I tan ove 38 yb @ mt et pape BOX +00 02 et area
“wabeeromen ae” betevilek aay Sant ede Sais sat 3 ox
ot ses Aten semi ono Ait se smth th
a
" Betthzaul a¢ 3ea steve or. an
(3
& Varisnee of 25 cents between the judgment ef the court
the evidence, we are of the opinien that the maxim ge
eck * ‘a , is applicable.
Fie Mie einen shesek eget ts entree,
2 Pe Jey and Metehett, des Gonoure
;
‘
;
yea
Stes
De a aS
2 Sead RES RR,
US" PS eR, wae
re
276 - 31408
WILLIAM Z, ROSS,
Appellee,
APPEAL FROM MUMICIPAL
Ve
COURT OF CHICAGO.
MARY Be KESMEY, ) :
Appellant. ~ Eo |
Mi. JUGTICH JOHBSTON DELIVERED THE OPIBION OF THE COURT.
Thie ie an action brought by Tiliiem Es Koa, the
‘Plaintiff, to recover from Mary “. Kenney, the defendant,
$200 which, in « real estate transaction between the plain-
tiff and the defendant, the pleintif’ deposited as earnest
‘money with Tomes FP. Lowd, the agent of the defendant.
i" The ease was tried befere the court without o jury.
; court found in favor of the plaintiff and enterad judgment
‘Om the finding. Yrom the judgment the defendant has prosecuted
t his appeal.
There is no dispute about the material facts. The
tiff and the defendant entered into a written contract in
to the purchase by the plaintiff of = brick residence
om by the defendsnt. The plaintiff deposited with Thomas
“Ps Dowd, the agent of the defendant $200, a8 earnest money,
j ‘the terms of the contract the defendent agreed to sonvey to
r Plaintiff vy a “statutery general warranty deed” «a good and
: table title to the property subject, among ether oncum-
» to "ony party wall agreement of record." It wae further
in the contract that in esse material defects shoulda
in the title and should be reported in writing by the
» if the defects were not cured within 60 days after
wel
aR SJ MeO & ATS: Se RAN ABE ore sod Wee & a
SOP EE? seas ell My fl
4
ASOT MOM MARA
ORADINO FO TaweR”.
9 @ \
ins fi, i |
‘el KK ey. ak \ie ke fo dw
eTHOO ANT eo WorRtso | aus gBivilonesy Mora orsem ms
eas ,anee a WELLE yd ditgwond melden ae es ata? )
sinabiared seta ayenmed 6 & yrall most xoveoet at Masatag
wnhalg odd wsowted nolsonnness states. aan a mi stip hate 008
fusaree an hotleoqeh Tikéalalg odd rimabaoted aalt baa wt
itu toh od Io saonw 5d «hwo a. sama? da tw wm
Giul.o ducdtiw dues od? stoted belts eow cans OMT
isrmghst boxedeo baa Yiisakatg ads Yo rove? mt bmor eu09 is
Sunes eary aut dusbas teh oad iat std mos | “saath ute i
at? s».adoat fakvodam oft tuode odugats Os ak ered? fy
ai doanings aodtizw « otme bossa Javdasieh ols Sam veto ,
sonshtees aekud » to Pihsnbatg ott yd candoug ot ot Legs
amon tie bediwogeh viivatale eat ‘sdanano teh ails @ |
»yesvom taomnas ae 0086 tnabae ten eds to onage ott 4 '
Gd Yavnes of beoxas Anwbaoreb ents toaremeo ott ‘Ww axreod ose
fous hooy a “noes ner eae inzonsy Urosusasa” w@ i wea
-muons rote yaonn ,tooldun yereqong old ce) otek ate
seddzat acw $1 “.Suopon To é momen tye kiaw. eae wa" os
Aiwote atootod Larxotem, ouno mh sorte Soaxdaco odd at
nid yO yaidbor at bedzoqes 06 i 003 hue |
corte. yeh C8 skid be home ion onew ; a 3
the notice, the contract, at ‘he option of the plaintiff, should
become mull and the earnest money should be returned. The
contract further provided that if the plaintiff should fail to
perform the contract promptly on hie part, the earnest money
should at the option of the defendant be retained as liquidated
damages end the contract should become null end void. The con-
tract further provided that « certificate of title issued by
the registrar of Titles of Cook County or complete merchantuble
abstract of the title or merchantable scopy, breught down to date,
or ‘merchantable title guaranty policy" made by the Chicage
‘Title and Trust Company should be furnished by the defendant
within a@ ressonable time.
} The evidence shows that the defendant procured a
ty policy from the Chicago Title and Trust Company.
Was no evidence of any party wall agreement of record.
1 is conceded by the defendant “that ss designed and con-
structed the entire building covers six or seven lote with a
te two story residence on ench lot; that the residences
brick with a stone front, heving separate entrances with
rate steps leading to each ejtrance.” The plaintiff
ected the property before the contract was wigned and
the condition thet existed. He testified that there
six “separate buildings 211 embedded in one; that there
; "just one roof covering all the buildings;” that "there
: Rothing to show thet they are seporate buildings."
: the plaintiff notified the defendant, in accordance
) the provisions of the contract between the plaintiff «and
\ defendant, that the defendant was unable te convey a title
and clear from 211 liens, incumbrances, restrictions and
mn
ae
Bivedia ~Ikimtolq elt to neLige atte 3% Sooutnon ons asokton c
att shommtet of bkwosie yomen Inenxeo odd ban one omens
08 Lie? Afwoda Yidalate ot 2k goats hoblvowg wore 4 onde
“omen Jaukiay ets yotag 2 hel 238 qliqneng tanita’ odd ‘mretes
bédupkuphl aa bewketex ed tueduetob elt Yo melsqo, ont ta bined
awom et? .Riev kas Lia omooed bLueade domsdnon net has eagen
qe bestowed alti? te eeenhtsason @ Sasi hohiveng, aes, to0
sidedasidatem etetguen to eee’ Soot te aotei? te ‘taxtalgos ae
gadan 2 ewioh” diye eemoe eldsinatodan wo off13 ‘et! ‘te onaie
ar ll wont “yotteg — abate slat
phosssotcen’ ditnhecteon’ att Sans awoxte sombtve oar
prot eet be Barca — ade one ens
ane bas borgineh ax tate?’ ‘dtihathy tid we re
a Siiw atok moves to xle eteveo pathliod oxbéae 5
de ow odor
ae La
avomphiant edd dads t¢oL done ao seaobteox al
“a ebbnettxs slate gatvart atnort ‘neha’ a iy a
““Witintate oat ae oa oa palboor errr
AN es ae
) bemgie ‘a seasta00 ona oxoted wrong | oa
. Rise S(T We ee ‘aust Ge
ated? todd bodtizhor elt shptatze bast ali tonoe
ical saad Mone mt hebbodun bth
pt alte Aaah oi’ gallos Soot
i weg bttear edaeegon ok ree os oF “
°. piabscooom ok” \ Sie heotan’ ‘oe sortscon so EN
Bata baminircanth or yom:
easements" and demanded the return of the $200 earnest money.
The defendent did net cure the defect.in the title, as requested
by the plaintiff. Gubsequently the defendant sold the property
to another party.
It is conceded by the defendant that the preperty
Was burdened with an casexnent not of record. But the defendant
Contends “that a statutory deed dees not warrant against such
an easewent as is objected to in this ease;” and further con-
tends "that the plaintiff was presented with the guaranty
policy 2c agreed upon in the contract of purchase, that all
liens and encumbrances were mentioned in said contract; that
@asements were not specifically mentioned, but were contemplated
in lew;” that “the contract was signed after inspection of the
pooperty ond if there were any easements they were open, apparent,
and obvious and by law were taken fully into consideration by all
the parties; that “they were part of the contract which provided
for a warranty deed without mentioning liens, encumbrances, re-
strictions or caseuents."
The plaintiff contends that *it wag net provided in the
sontract that the plaintiff take title subject to this defect,”
thet the “defendant had full knowledge of the defects in her
ne
tle, and signed a contract to convey a clear title except
“wall agreements of records” that “she should have seen to
t that there were party-wall agreements of record, or else should
have contracted to give a title free of such ensements and
Tictions, knowing thet she could not make the title contracted
We agree with the contentions of the plaintiff.
Section 9 of chapter 30 of the Illimeis Statutes,
+ Modem tnowsne OSH ed? To auuset oM2 dadmemed nae “atassons
bedoupet a6 .9idld otf) ml. sos 2os om? oreo ton bts suedners % e
qireqgerq ed? hfce # mihuee bo oad vhimowpoadye +Pitenhelg ode x
: ety " Ok a reine s
cpbieun ord snsts ‘tashaotes ett vd Seboomoo at er : Ly
a i
dash ted sit #8 .bteoes te Jon Jaenvans ae aotw ‘belated
dears: fentage fasutew Jon. Bee boo) yrohudese 2 : a sano" :
» toe todiunt bas “teeeo ends ok ov hotostdo wr hl ‘toomone
eimenarg wad sf der betuseorg aaw Miseahele ets age ne
tte ae » oasaeony 9, dontineo aad ut oq boorpe g
tadé ¢tonntmen bia ak bono tinem otew svonardieone: bas
ae ie Pedy
hejalgmeinus etew Jud bene t¢mem video oe ton od « EE
ads te nol¢seqamt tests hoagie eaw foséaoe ont" Sats tent
sinetaqgs yaeqo oxew yee adneasase wie ouow oxeds ™ bas :
+ ap wel pote fy
Lin ve Bois atablamed enn xhtar west eter wat x boos auolvse
co ad m
pathy!
ne BY j ys oy: heel a
a8 s90u ‘ered biwess ein Sauls sepnoeos ra einmaverss o cia
ah! av te i Hy eg i ae ,
blwede vale 19 cirxo0st ts stnensoxge Law ge 20@ ous. eat Sade |
sae 1 ea a i He i i Pag: | Aa me)
eis atnsmanse tous te vert oxens a ovks ot be. ovad 4
SMe aanaheh Man Sa Pica
netoasouee onthe a2 oes ton biwoo sta sae, _Babwonl « Soke:
Pas ot ihe Ay eta ge (i |
abe. Pir ee eg
Titanate eatd ‘0 anobscotnoe odd ae covas 60
: N BPE cae a ¥ sn We
saotusadé etowiist ase LS ‘0 were
: HMB A. eRe. ae yer ieuean Suche oy
i regents a
ade
Féleting te Conveyances, provides that a warranty ¢eed whall
be deemed and held a conveyance with the covenant that the
premiees are “free from «11 encumbrances.”
The principal question then te ve determined in the
Case ot bar is whether the easement in eontroversy wan an
enoumbrance within the meaning of the statute, The rule in the
state of Illinois is that a right te an easement of any kind in
land is an encumbrance. Beach v. Biller, SL tlle 206, 210}
Weiss vy. Binnian, 178 Ille 241, 24% im the case of Zelea v.
Binnian, supra, it wae explicitly held (p» 246) that “while it
may be the rule in some of the ctates that a granter's convey-
@nee of warranty in « deed doce not inelude an sanement, thig
@ourt hae adopted « different rule in Beach Veo Biller, 61 Iii.
206."
We think that 1t dees not follow, ss counsel for the
defendont contend, that beeause the plaintite signed the con-
tract after an inspection of the property and with knowledge
ef the ensenent which was open and apparent, the easement Wag
“taken into consideration by all of the partiess” and was * part
Of the contract which provided for » warranty deod without men-
tloning lienc, encumbrances, restrictions or easements,” The
Plaintirr gid not waive the right to object that there was an
easement on the property by signing the contract with know ledge
Of the existence of the easement, for the reason that by the
of the contract itself the dofendont agreed to give the
ff a warranty deeds and accerding to the nuthorities which
just cited above « warranty deed includes on easement
TA Gintnsas Ss on ehouswanes. 3
Counsel for the defendant further contend that the
rt erred in entering Judgment against the defendant; that
oak t = fone, as, ameter fos, asp ak sass fons? 0% Moivde ok
do kee wabt deossun eas o gnthaeson tase “gp000 qimextaw a
om
Ahad, ply NAROEAY i aes REOLIORG,. eG OMAR AOD 8 wats se
964 dat tpamore 962 sake oameeayane #,O8K nen tenet
Lwonaaiane. delay ty Msaaunatdauawe 115 wax? oon! wm 8 OG ae
este att peatanith, ad of aedé aotsaoup ingrontyg, aa, phe : 7
Ao Baw NaKovensEoe Bt sreROeNo. ene. 1 oes enix phy aad 4 a sa
cid aut okin ost, .ogugeds on Xo amiaaes, ood mist te, gonenie
sh, bakh: yas. 20 samanmne me 99, 48Rb%, jodd oh, akomhit
pA ORR AOR ohh AR, 0: | fh sears tt
sy mahal 3a neansot RE yuna Boe Me ESE MEEes Eee LS |
#2 ektee” sacle (26S, +), iad, yiiloiians gam 7), ..2aee.
~qorneo azotnary # sagt agdain oats, 0, ones, a), ofr, wt
gids .dromennn, na adutoms Son aopp, dead 9 At, nexzan to 98
£04 £8 MALE D oN stowed mt akin inpretith * dedeona ies
4
ten ods dompte TisatalG odd, saanoed setts <taotmon inate
_ sghetwont ddtw haa qoteqgexs edd Ye apkgoedsnt mm mente | bos
cov Saempase etd .laoragqa be MaGqe FAW ott snomeace sit
4 PERS agate ea “geokdieg og 9 ile we nottoxebiance | dere vB
“agnor womt wats tostines ott “amamate w snd aa a per
Re ted OI Lew
: _ ena <“d aout moans wat sot «nouns ont %. ny i
i LS ROI Re es
ons ovis oe norms snonaeted ott “uses sourauos odd Uo a
a ROP ORE Bah 4
a, Ob yikes tye Rig bers.
demesne a wonetent ‘hesb Waster a svoda bette |
eta rare “
ot aauit + naosaoo 2 tone a ie * yee im es ate wet fi. ]
datd penatme'ted offs santuge tuna oetzotne ea bore mM
the judgment should
been entered against Dowd. Sines the evidence shows that
held the $200 earnest money
af the pleintirr was entitled to recover,
a agent for the defendont,
judgment properly was entered ageinat the defendant.
‘Bishback y. Brown, 16 111. 74, 75; Murphy v. The Yeople, 104
“Tl. 528, 535.
! Yor the reasone atated the judgment of the triel
is affirmed.
AFFIRMED,
» Pa Jey and Matchett, Jey coneur.
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gaa - 31420
“ ROXANA PSTROLMUK COAPORATECH,
Go ratien
i ae : Appellees,
APPEAL PROM SUPERIOR COURT
¥5.
4 OF GouK cowry,
| ~ABTUONY PRILLC,
1 Ly : Mi 6)
fd “2 te Lethe
BR. JUSTIGR JOHASTON DELIVERED THR OF Ti 208 uy THE COURT.
oh
>:
Thia is an epveal by Anthony Prille, he defendant,
fron a judgeent entered wider section 55 of the Practice ect,
, in favor ef the Roxana Petrolwm Corporation, the plaintiff, in
the em of 0491.70, whieh wae part of the amount claimed by the
“plaintirr, Ae to the balance of the plaintiff's claim, the court
‘ ered that it “stand for trish in due course, *
The ease was tried before the court witheut a jury.
ee The demand of the plaintiff was for $6491.70, tha
j “price ef gas and Keroraene #614 and delivered te the defendant;
also for $90.84 for laver and material furnished in the installa.
. “thon of a pump at a filling station of the defendant; aleo for
4 0.82 whieh included the cost of installing certain equipment
“ one of the filling stations of the defendant, aid the cost of
re ef this equipment from the filling station.
The principal queetione in the ease relate te the
of the court on the pleadings. To the plaintiff's declare
and affidavit of claim the defendant filed the plea of the —
| issue with an affidavit of merite and a plea of set-off,
y leave of court the defendant amended his plea of general isaue
ith affidavit of merits twice, and his plea of set-off once. To
he defendant 'e amended plea of set-off the plaintiff filed a
eral and special demurrer. The court sustained the plaintifr's
r Bins Ki pe sy £ a, Sais ate cue
I : PANSY i pres rn LUE RAE Se ae ¢
\]
ToonOLAtaN | one aaa: dws wat wei aa
fe Red
¥ > ‘ mie 1 , bie
Jy Wit Shy de teens cheat as a ey
oe a es 4 i ho wy 8 sal Na, He. OPIN + \.
eH Ke Ts
t; 2 4
/BADOO wait eG KOZ MK" aur pea noseicion ome ne
ere ot ,oflins inion d mA eo evens wet oy att "4
ghee Gelforty wilt te 86 voivoee Pops borage . 7 Pepe rh
oo LYtidulete with snoltexeqred: myo Loates wanott oie ‘to te
ods we tome fo $ aw on walt. "te aah aa ite basw 1 OF, £0898 te
fivos ott itis Lo a tris alate asd "te eonated at at eA Tu
* .seretr06 oa at Iattd tot fant a oY batt |
Cut 2 duets tw suites watt ototed heist ew cr) sat |
oad , OC. Lene tot sew Wtbsatete esit 6 panne aut
s eaebae tee wide o8 hansetfed frum ntew “enied ote hae ong te ¢ :
wa itatent ei? 2 books Lori’ faimdam Ban teint tot 08,088 at
tat gate jd aabsie tab malt %6 moh Ie38 mk ese a oa og
daomqplpe niatios galiiagent te eos ed? bobs foal sto bie 8.
Ye dee o00 baw , foabri ton ony Yo aselsate pment ase wm
sapidades yuhiLe? eft aor't $29 cig hupe im a
edd 69 o@e lot @ean oud mh anolcagup fagtouleg Pr
wi loeb a Vitealaly ei of .egathewty eat ao pabieelion
ent to aoty axdtt betY snwbaetes ede mtate “ 1
Se aR
) a
A]
5. @emurrer. “herewpen the defendant meved for Leave te mand his
- pmended plea ef eseteaff. The aourt allowed the defendant's motien
ané gave the defendent ten daye within whieh te file a second amendeg
‘plea of sateosf. The defendant, however, dia net file a sacond
amended piew of set-off, but at a suceeeding term of court elected
te stand by his first amended plea of aeteoff, The pisintiff moved
te strike fron the files the last paragreph of the affidavit of
Tite to the defendant's second amended plea of the general issue;
Qné further moved under section 56 ef the Practice set that a Judge
mt be entered againet the defendant sm the plaintiff's declara.e
f with affidevit of claim im the eum of $9401.76 with interset
five oor gant from Sertember 14, 1925, The court ordered that
# last paragrach of the affidavit of merite to the deiendant's
ee ond amande? plea of thea general iwaue be stricken from the
files, sn4 that Judgment be entered in fever of the olaintify in the
! of $9491.70, The enurt did net allow interest.
In hie pleadings the defendant did net deny that he
indebted to the olaintiff in the sum of $9491.70. In nie affi-e
‘a it of merits attached to the second amended ples of the general
4 Sue, the defendant alleged separate defenses te two items of the
tiff's claim; but as to the item of $9491.70 the defendant
‘@ly referred to his amended plea of set-off an eteting a de
to that item, As the demurrer of the plaintiff to the de-
‘es amended plea of set-off had been sustained, there was,
: » at the time that athe judgment was entered, nothing in
» record te show any defense to the item of $9491.70, In fact
Ne defendant's anented ples of set-off offers te *ailew to the
La ntifr $9492.70 of said danages,*
- ‘The first contention of counsel for the defendant is
wat the eourt erred in sustnining the plaintiff's demurrer to the
endan ‘a amended plea of set-off, |
a Ee a
wie beau of avert set bovew | fapsondeh oxtt, smeuown dt
‘aplgon a? taphroteh ent hewolle drape oh, , #8kangoa ve le "fh
ea MY
bebaeax biomes & Silt of do biv ants hw! ayeh sed Snabaw red, ott evey. on
bapose a OfPt Téa BIA , wevewar! stnebag eb oat + Restae. Xo 09
¥
1,
,
bsdouls siwod ‘to wend gathowoore o ta dud. a tis-doe te ookq. »atiran -
bevou Vilesioly ont .TMoateg te ooka behasms tart? wld yd Pi ot
“te tiveb ites nag he draregeree g faed eds velit edt taedeh aahnae, 4
pound ereaey ait Yo aste $obiscms bavosa’ ‘a! Sunday ake ‘es’ ad
wabul, 4). tad? toe, eagtoert ont. To. OR, apkseee sehmp doveor aedtewt, ae
cota fooh st etlinielg od? me tne ue teh, edt tealeme baxorie of bi
fac tesad Sti~ OF. £0D8) To swe ei sh whale Xo, 2Awaba eshte wel
test hetwhre gree om! PCL yh Todamt ret mow? teen tog ie
2 deabne tok esis ag, 9? trom’ Yo, @iveb lta ont paella ines
| wait mort node st4 9. od evens {axoney on 70 Rae, sPepnars.f
7 oat at Vitininte odd te owe? at Denetos ad Sey feet Bie want
aes sfponnsad, watts tom, Sib gras oft . OT. £eRCR Yo a
al tags, wun: For HL taghas teh eset ayaibno te aid al +i) "abated 7
~28ha ah SL 107 £0098, 2p, owe oc ad WR mtate odd of peddebat vay
faxenoy oft 1p avig hobapus haogge edd of dadgaisa Swe yeos “a
odd to gust ove of aeaneiep storages, popesia, sanhae tae edtig ey
fanbootoh es OF LATE to wedt ent of om. dud imate .@' Taree ke
sob a githints oe The-tea te aglg hehovgs ete of Serge tee) foxem
ont oct oF Tiisaiate eat te Forvugeh edt aA. nwt h taal OF OR
ROU OTE, ,Romdstnne ceed Bed, Ttomteg to, arian sean
nt gakitoa ,deredny wow imag bal, ox bial al OG, Ta gt
toat GT OT, £en26 ™, oma d ocit.9d 990 Fe, ume wees huh
O88 OF wetia” oF ateTig Mester Tq.wale fotovaa tambon
a ho er * anane aed BAAD 30 OTL HOMEY “
eh b taahnoreh auld or reer MOteyotaee, tenet 0c vanat
at od toctmarmeb EH a MA i
“4 Vinwtee teante babies oe
4 In cur opinion the defendant is net in a poeition te
Peiee this question, for the reason thet he ebandened hie first
auended lea of set-off by moving for leave te file a seeend
inate plea of seteeff when the plaintiff tg demurrer Wam eurticined
te the first amended plea ef wet-orf, It is the rule that wneve «a
party acquiesces in the ruling of the court in sustaining «a demunesr
he hie pleas and takes leave to sieat over, no question ean arise on
femme ae to the eulYfieleney of sueh pleas, Dunlap». Chicago, Bil
is
Fy, Udes 159i Lil, 0G, 422; Goyle v. Clty af
» 193 TLL, BOL, 80%. fo the same affect in pringiple are
She feliowing caseat Galton v,. Gibumge City By. o9., 95 TL, Apes.
’ » 9; Marrie vy, Witilis, 200 Tli, App, 402. the election ef the de-
fe mt at the subsequent term to abide by hin anended plea af sat~
aid net change the aituation ag at that time the order allowing
1 M, on hie motion, to plead ever after the plaintiff's demurrer
been sustained, had not been aet aside, bul wag atill ia ef feet.
‘She record shows the defendant in the attitude of aseuming direstly
| Asisient poaitions.
| Ve have examined the defendant's sended plea of sate
of: » however, and we are of the opinion that it 1a defective in that
it Seeke to set off unliquidated damages arising from alleged breack es
contracts other than the contract on whieh the plaintiff hae sued.
is the rule that unliquidated damages growing out of an alleged
h of contract, distinct from the contract suet upen and in ne
rise Connected therewith, cannot be made the subject of a set-off.
7 at, 721 Th. 355, 333. Counsel for the defendant meine
that the amended plem of set-off states fucts which "shew a
defense at least by way of recoupment wider the general iseuve.*
he Tule we Just cited applies as well te recoupment os to set-off,
M4 Cyclopedia of Law and Procedure, p. 695. Furthermore, there is
ne item of damage in the plea that coulé be recovered by the de~
naw only in an action of tort, and Ghat is the item of #800
| ot aeLs Le wy & a2 tom al doshas tar vis solaleo wwe at
| deurt. hi hosohimda ast S devid uoumOT ead oT sito Rs eoup windy
haowen & Lit bf O¥eed rel unten roe ‘Vientew to Py
Sonierewe eee cere abet a ceka Le ex) malty Vendha’ yg’ rw
& wubsiw Sekt Whur Bed BL OT YWrowtew to ety bobumla Pui
Seah A aakataswue: mt Sea ons ko’ pat bere wats we aeons tnpeil ak
sp OR kts ten mehtagup. oe y reve hawker of Rie. welad bios bedi |
PRMD RED 9 alae “sane ke singe To “en on hey ba ent ot he Leo
ah nidou ee Seas paee Ome aeRO aRE Loe Lee tee ~ 3
te elgioalty ah dentro bie o6d of geeN yp coe Pes Ga: 3 of we
eompa gRETO ER, spo yindie apes den oe med cae smsabe . aiwolt ots :
“Ob ost Re aaitowse BAT RBS aad VET OOR adh 55s MP.
gakwecie foie wie ‘Amte dieite the ad id beets tee as ten &
RRR NRA Le Hat made SBE Beate 62" waded ea aba ae"
‘shootte at Sige" pan tut ,ebine 490 med Jou bad \bemleteud need a
eidoert gaioreds We hud hoe ack at techawred oats wade bods ‘ode
cients. Peete kRY hata me 2 a tigts teeq, tonsa. oom
ates Xe sig Witnsicieat a tecsneeh de ‘dAlibdals avdacaw 8), aM
|) teak a ovitonten ek O fade adtites ods Lo Wea er bad” (tavatiad th
| an Soeerd Seyello aot yalelio uoqumeh Kevabing iad Wie dom ot net 4 |
| bags aac Then tnll oie) wptie ne soaTtipn ext! can} eertds sbentdnde
hagetin we Le tho gakwomy gahauah bovh trp ssi sai aire itt 4 9
on mt hi muck feo Peerthop emt seek doatoely ,toekeies’ Yo! Mine |
\Uionton a 2o, toahdun sat ohana tonne jstekworehD Koren niuby hme
eniam @agdae teh ead Nolo desaged PERE: ChE GLEE LIS se etapa
awasie” op hetw atoeh setae Rendon Ne mo Ly” hobs ost t
*,ovnek Loroney ond unhmy teolemronn® te want feed monn OH
sTigetes of ae saomeuaoes of Lhoy aa nodinge: bebo samt 0a
oh onan! jonomtedtant - BRD otaedan eel er ar atoncetee be |
te wal baxovoour' od Shwod snst sade pif ah yee Te mms heE
iy 9088 ‘to awash ac? ak sade baw), ease” i aN nis wh ye tid
revairirg the damages dere te defendant's wire, cement ond ime
ente cauted by tearing out equiprert® by sinintif?, In the
of Rebineon vy. Hipbe, 44 113, 404%, the court said (p. 400):
are avare of no lew whieh anthorizar the ymiiquidated damages
ing out of a tert to be sat off in on action ex gontracty.*
ar, the defendant faile to allege that the ites of $800 fer
@ was the reasonable, customary cost for making the repairs.
Counsel for the defendant further coitead that the
erred in striking frem the files the leat paragraph ef the
ef miant’s affidavit of merita te the seeond amended plea ef the
iesue.
Ag the defendant has mot filed a bill of exeertions,
question sreseriy should not be reviered by this court.
It ie the eule teat tn order ta oregerve for review
@ question of tho correctness of the ruling of the court in atrik-
g ® pleading from the files, the pleading itself must be incorvorsated
® bina ef exceptions, Tljineis ety Go. vy. Kunro, 209 Til. App.
}, 411. However, we have examined the ruling of the court and we
Mk that the ruling was correet. ‘the paragraph itself contained ne
Tense to the plaintiff's claim, It serely referred to the defend-
b’s amended plea of set-off as follows:
“arfiant further states that ae to the balance of plaine
t4ffts said demand the mature ef the defense of the defendant
ds a set-off of damages suffered by the defendant by reason of.
breaches by the plaintiff of certain contrast, which said con-
tracts, breaches and damages are connected with the plaintiff's
Said demand; and all ef wnier said contracts, breaches and dame
a eve ore set up in defendant's amended set-off heretofore filed
herein,
As the defendent's amended plea of set-off had been
La by the court to be defective on the plaintiff's general and
ro}
ial demurrer, anéd as we are of the opinion that the court's
yay
Ming in that reanect was correat, it fellowes thet the court properly
Puck from the files the last paragreph of the ancnded plea of sete
oak ite trenawe aren wi enetnateh oF sant ‘awpenied say aatelacen | ’
ort nt .YEEatade ye MPnematiye Belo ‘settioy “ haonined aden
8 (008 ay brea tow ett 8Gb LS LEE BN pee lw peelte ns : te
oganat botad inp tiew pitt wemtrorl tue ig heter wee mepeprersaroti
ih ~ndbosdto0 xe adiden av. wt Ys gon ot ot F100 a te ve ta
ogy OOBE Xe sodk ont Feild Suerte ot WELAY danbatn) wilh) weve
iy ‘atheas' ‘edd gitbies tet Seog yenniodews jw tdsnoemet sue sew wha
wad teil ‘Padtdoy nechiys daabite teh. er Yo? “Kona °°. tet
one to dyatywtag feat ‘oat wo ttt dt mork yatdatde. di. asia @
as te aole hebseae Sadene Wat ‘at Loiiegons ve shes at dvohan
¥ Lye
nebies
; efrwes a ‘a benntvoe od tox tone ‘etkeniee
t
atinie at roe ‘ead ‘ke ‘gach Len add ‘te sonndosarsa ot ne ‘he
Bedaventooak ed doy tines patbas fe walt moet eg ‘gon
“aah Lit @o8 “azn vw 200 vie stoptfox “sae LF geome
ov hae tryoo ost “to goiter oui Santaane ovad ow et ss
eat Bantad avo niondt dont gartag oar * “ doetred | sae yaa fara ext é ss an
“abate dl oF Bereta il 7 cosa ny ‘vit iF ot ais
hg ae a
wn wolvor tat orcnnet: es mh at tant efor ent “ah
ey a8 "tye ie. ‘be a9 0b. 9 ie. ee
sajesnos arene ota irs
et bio erg Poa 2100 Porson
@ ¢
tiaty eit? dblw heresanos ote &
me peunse ty avoatined bisa be. i b
be oui es eretoderes shares hehbaras @ Aa oe
awe sini ot ‘
ni dawoo edt todd setahgo ot..to. ete ow ma, inns germane hi
ehusqosg sen add tnd avelse? #2, ,tapszen saw soocass, dads, mb g
“tan Iu ae sen henpRH, dt To, dgargntng, teed ot, apE2%.9 08 . ame) Oe
Ne ae cae te ee a Bete iene ae gee —
Counsel for the defendant further senten’d that the
gourt erre? in estering Judgvent in faver of the plainti7r ia the
| t oF 89491.75, and in ordering that “the balanee of the laine
Raff's claim stan¢ for trial in due eourac.”
; Ve think that in view of the etate of Bhe recerd the
eYeperly entered the Judgment under section 6% of the
Pr tice act, At the time that the Judgment wan ontared, aecord«
2 @ to the rulings ef the court, wiien fa cur opinion ware serrect,
" Was nething in the record to ahew taat the defendant denied
he indebtedness of the item of 8491.70. Gn the contrary, the
r Mencent, in his amended plea of aoteot?, oivered “to set off and
te the plaintiff 99451.76 of said damages.”
a Souneal Zor the plaintiil’ have asaigned as crosae error
he refusal of the court to ivigiude in the fudement interest in
ne ex of 3304.49, It is the gontention ef counsel fer the
Lai ‘M4fT that interest shoulé have been allowed under meation < ef
apte 74 of the Tilincia Statutes relating te Interest. Ye are
r the opinion that the plaintiff is net entitied te interest.
q For the reasone ststed the Judgment of the trial court
affirned,
A
AFYTREED,
ry Pp. a., ane ¥aetehett, Tae OTE «
if
i iM
“ede dons puwsasco weddiet fimbne ten wal see’ frareed © atetaen
odd wh Tragatetd ad ‘ig covet uh das inh’ ‘gtilto dike it bee
onl t's ody ee oone Low oie” gust! gettebye at baa OPN tg om
latin TN dated ea a Lied Oe hee EO 7
edt Brose ‘galt to 2gil9n “oud te wa ew aL desl dle aw OY De ‘int
gid te Ba ‘sisoon thoy tiombul, ant bewedas Ylrwgong owe
-Bicoos ‘bere ait ade Fitemyhat doo tadt oabe aoe 9A Pde eet tie
toextes ‘eiew asialgo geo AE Ae liw Cae oad “ta Wgith fers om od Pe
betms dasbav'ish exe dads ‘Wont 0% bide old WE yakdsed daw Ont .
ade eere1t noe out ao” OFS 2ebeg ‘to med a dy Yo eadanaede ied Wl
bets Aco don as? hone tke itowdoa te svg hehuems 9 ie ad’, ta
a *
oases rnutt * staat ‘Saat bas btpeete ce: oat
saad aa fescue ag ele netike earun ae ‘oeaial ‘i
: “te e ‘aelteos sek hawod ta tha evel Sibi dai :
ota av dasternt of yatleter medusath a ait te
steowstat ‘ot be tetas teat of ileviitn ty wes? ‘tad pt
‘ur09 ‘dates: of te dani one nove se winding ot seat
edie Dh We ee ae
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Pedal eae ea
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t Bi, fo SKUs a ‘ i fy 4 i q
ra th a ‘
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mi Be GRRE i i 5
RR goin ame ACPA To Unease AON MEG ces Ch TaN i, Migr MAG, iy nay
Sait PARRA titel: Te Sibia oh OW eR Gtpiaias veil hd
AR? RH OR RED I ly aR a aan ing Pea Med Fretanty A ORAM
eR AMIR A ee eT Ml Naha Rei hain i ai
-
PR LR om ai Remon. wiehe Ra Higa nel eng. Dayan mth ilies eg
390 = 31522
MBYZA GRERH ond BRSSIER GABEN,
Appellege,
APPEAL VAQH BURL CIPAL COURT
vs.
)
OF CHICAGO.
CHICAGO FIRE AND KARINE LASUKARCE
é
COMPANY OF CHICAGO, ILLINOIS, a
Corporation, i
Appellant, a, aes re)
BR, JUSTICE JONNGTOR HELIVERSD THE OPINION OF THe Som,
« '. ‘his La an anpeal by the Chicage Fire ané Marine In«
? Suranee Company ef Chicaze, [llinois, the @efendant, from a Judge
: ment in the eum of $252.95 in fever of Keyer Green and Beeete
Green, the plaintiffs, in a: action brought by the plaintiffs to
t Feoover damages for a lose by an alleged fire under a fire tnware
ames policy isaued by the defendant to the plaintiffs.
Be The case was tried before the court without a jury.
He trie? has been flied on thia appeal on behalf of
‘the plaintifre,
) the alleged fire originated in the eleetrieal equip-
in the building oened by the pisaintiffe.
In their etatement of claim the plaintiffs claimed a
famage ef $192.95, of which $162.95 was for Luber and mae
al in replacing electrical apnsratue, and $40 for plastering
Caleimining, As the epurt alleoved damages in the sum ef
2.95 only, it im evident that euch damages were intended te
the eoet of replacing cleetrical apporatus.
The principal queation in the eage relates to the
struction of the following clause of the poliey:
d “Chis Company shall not be Liable for any lees or danage
~Fesulting from any eleetrical injury or disturbance, whether
from artificial or natural cause, tm or te any of the electrical
+Spperatus, machinery or connections, hereby insured unless fire
‘g » #64 then fer loas resulting from fire only. ««# *
ene eutetie Ne we 5
Pong nga diogia ya Res "ny
m #8, Da ae a
ae Mi St
oa BS
“ia nau
Paton anerorii wot uawedR
,ooxcray wo” 6
:
«Wit pabca® bab er 28 ogee tn b6d vat Tasqen an ‘ae
aphirt’ a nivtt! Yoobnbreh. ont javoabctY “Sgbelad Yo yaegs
alwent nis ward wy Yo vorst ht re.sese te len’ bal’ at
a4 BIMidalote odd ee oMeotd aoltoa wut ar, atibinbote oats oat,
‘wndbak ond & teas S224 Boge tLA ‘ade Ge tnot ‘a 40% sesame
‘ Jetraratinca ofa of phebantes ost ae bousad yok
.vwh 8 duoitiw tages ead wood bates ‘dew vees ens ott va’
etna’ “ad inoqat what ‘bottt nsew ead “Yolxd ou 0 eth
wine dn" nee. Ka dale “el ye ini
al “tabbed to ond ah bodoats to ot Boye te ‘oa
sav hatade fa std we bemwo ‘gadbttwe bard 7)
a hontats wTitvaiatg et ale fy ‘te Jovamdats tiedd ox
ait bao teak to? aow ae.car8 flo dstw to 289.8008 te ouann i
aatiasonte tot OF baw 1 aindie "to geen te leaeh epithe tai x
Le swe ond ob somsmad hawotls Pah bas oa spat
ot bohaetat expe sepewih dove Sods taebive at th yess *
ssetewedqe Saolsteole gatoalaer to teee sith |
ott? of eatoler onad etY Of nelteoup fagtonteg out i
ryokfag eit Yo eadets ynbvottet out * «
ajoush to abot (rs tod oLSHRL of Som Chortle yoogao
gositadwe ,eoaediadakh hiv quai fav kris fe ee
fmobtios te ect ‘to yu of xo md Canon Teredam To"
elt eae Law bets ad i sige sank ioom
* #ew .ytao oxtt got gate
Ree i. ki vtone Oe
Tt fe the contention ef scunsel for the defendant that
the evidence does not show that there was a fire within the meaning
of the clause in question; thet "there was no preof of any setual
ignition in this case outside of the eleotrical equipment, except
a flame at the beard te which the meter was attached, and there
Was no proof of any damage resulting from that flanwe,*
in our epinion, according to a fair conetruction of
the clause in question, if there was a fire in the sleetrieal
(@quipment within the ordinary meaning of the word fire, and the
electrical equisment was demaged by such fire, the defendant would
de liable fer such damage. This is the construction which we think
is implied by the felliewing language in the brief ef counsel for
the defendant: “In the ease at bar, the pleintiffs' recovery is
‘based on lose resulting to the oleetrioal equipment in the building
ineured, but such less wae enused by sleetrical injury or disturb.
ance, and not by fire, and the policy sued on specifically exempts
the insurer from liability in euch case,"
q The precige question to be determined therefore is,
"whether the evidence sows that there was a fire. ‘The definition
of the word fire applicable to the present case, ae given by Febe
ster's Kew International Dictionary, 15 as follews; “fhe principle
of combustion as manifested by light especially flame, and in heat-
ing, destroying and altering effecta." The definition ef the
Dictionary is at follows: “Combustion, or the heat and
At evolved during the preeess of combustian, *
The substance of the evidence on behalf of the plain-
is that there 788 a “big flame” about 2) feat in the elec.
ri light meter; that the meter was in a metal bex; that there wae
a >! ece of board burned; that the boards outeide the meter box were
Mined; that the eite walls were burned; that the fire "started
| the floor;* that "the house was full of sueke;" that there
tans tnapae teh an? <0 Lowturay ‘ta mel) qettrton orm wk ee: oe oe
gee Poupene std wbetheeelt a eae wind tod? words toe ‘goob vonohive
favise te “lo Yoste on saw every” tant inottaene ot senate oats + .
tqeaxe ,towaqivpe Lag litoele et [6 ab inte. eno why at é thm ai :
event baw ,bomoatin saw xobem edt so kdw of, hanged | ad gg omit 6
* eaelt gent wott galt ineet ogemeh yas te Toot¢ on w
ke Rotfsuxtaace da"t & OF yalbtoooe smotalge “re at
sa iatoe fe ott ak ot22 @ eaw sv0d¥ tt neldeony ab cautle ry!
oat ow ot Hiew ade “te pakanen esenkdte ect lad bw dm
bigow ganbdadtes off pwal't dawe wl beysneh vow Qneankygo Leok
duids ot ekiv aoltewttenes off gt eit? ,egemgl dene 20? Saat
to? Lexsuse “te Role ead xi egatanel gabwoLeot wilt. ge Siva tga
et wtereanr ‘et ttntele aot pted go anag ort oT" 1 tamhae toh, od
palbited eft af Paenaiepe: oo ivtants oct of gat feeazoeeod im ‘
~feurels ue wartime! Lasistodty. US beevas. sam snelvfoge Ind ,b mt | c :
stqmsxe ¢ikeottivogs sq hove valley edé One, entt ydiven hia . “a
*,eoen coum al yoilidakt moat? sitet .
yak ertotoreds hentsredeh od of aniteoue seteetq eft ~ i
Aoittad eb ext .ettok aow eters dad? awein wnaetive emt x90 od
ada yd nevhg ec ,deco saemety 642 of whdonlsgan @mkt brow out | 4
efgiouisg #i8* rewellel aa gi», yrsehiesd Lengttensegal woh ota ta
ofaad mk doe ,omntt pikaioegss eg ll et botaetiass os gobtagdang _ r
odd Yo soltinkted oat * eteetie galiatis baw galyont oh val
bas Sod nit xo aoktandaed®. reoito% en.o2 quamohtole wautenl
} S fiettondan® he @aspeig #38 gained bovlowe ah ry
cainig ond io ‘tiled ao eugebive est te eocatadee oot |
«vote orf ot deo? 48 duode “emee® pad « BOW oxosit tadty@
naw oinstd suctt jxod Ledem a ak gam Deere nald, teat: seo tem: amy he
Sm Age rare ae
W nod mtn ott, antago, wbeens astt tas: gBoaeeedt. “he aorta
“Ml eo ease Ne WS Cie Leb ast tty be iat
‘poPente er $ashd'g bosteset sono RMR ;
ermilt sect nian. to Lfyt sew sapori oais® Sant “sort ‘ott
Were i)
was a fire “on the wall where the wetere were placed, where the
Wood was burned eli around the bex slew « outside of tie box”
that "Lt wae burned black;" that °1% wee burned dike ashes;" that
the fire was extinguished by the janiter by water with a hose;
that the firemen aane after the fire was put out.
On behall of the defendant the substanee of the evie
dence, *hich consists of the testimony of agents of the defendant
Who exweined the premises after the fire, ia that on the weat wall
of the basement a switch tox or fuse box “had avidently been
shorted;* that the wiring wes all melted and burned around the fuse
box; that there _— "no board scorched by a flame, ne charred weed; *
that “the damage wae caueed by «a short elrewit in the slectrie
Wiring;" that all the wiring inside the metel box was charred; that
the inaulation was charred jana she lead which makes various connee-
tions te the various parta fas melted and had drepped down to the
sia ef the box.
According to our interpretation of the evidence there
is ample evidence te sustain a finding of the court that there was
& fire within the meaning of the word fire, as defined in the 4efi-
Bitions which we have cited above. In this view of the evidence it
ers:
we that the defendant is liable for the damage to the plaine
a’ property.
Counsel for the defendant further contend that the
nt should be reversed for the reason that the insurance policy
fes "that loss or damage if any should be payable te the Chi-
0 Title and Trust Company as truetee, aa ite interest might se
ns » and the Chicago Title and Trust Company was not made a party
, the suit,”
\ This objection was not raised by the defendant in the
ure below, either by its pleadings or etherwiee,
The anewer to this contention, however, is that the
Se pe ee SO,
Sit pera wai aco Lat aunt a eld oh bend qatnte anf Che taut
mpeiitite siolnw eter geht Baw ext fax herewil eam nth atte
che
0a wensee soon ke ome ares om, and axed Kio ost, ao" ext a a
* sxe ast te pbketye » * ag fa xod, eat, baer ihe Demat aa be
fast, " seocdaw oat bastard way ae tas * alae ks beaitud ame 1%, a
poand a Aekw eodem Bd aodtmnt ante, at bode tonatexe ao okt
ale ke. reo nniane aan Mate: outt aid a9 ithe sav wont nat
ehva e237 To seuoder #2 Saebue keh a te. ‘thasind 0 0 yg ‘oe wen
tmnt ted std ‘te mega Ie YRomtseod act? Ye atnteave do haw , eon
Siew teow arith mo Seale eh outer odd we'te ns ede boatuaxe
meng vhinohive Bax” nod wast to mod tim a manera
‘want ond Reygate | RoR Y Oe Rew: bas Syn: hte mew yak the writ) taste
myboow horus om itoitt © yd becietens fied an” es oils ttt 7
obtsae he suid ak theptio drone ow vd own “ase saninah sts
Shrent
ett 92 nwet feeceh Rat tine, saan tan rage os
SUNS Sonohive off lo adl@ateatetedal ceo oF geakbroosh oo eo 00) ae
oa erect dad! vaeep wd ‘be oetial? # aledewe at woROb IVS 9 Len
ekiwh ortfont Bealish on ,o8t) buew ey Lo gitlagem eit wid dem 7
dk ooaebive adit to welv wht al .eveda tetto mrad ww ota “wit
ethely O02 of wgsmah otf wo ide ks ae dmhne ten wet ns
F. a Cee, ORE fe nalts Be } snes 1 i Ait Baek ae
A wh LAE Re (edi he Soke 4 i OEE) SNe MN te le Bon es a ©
ee
Hh i HO eng ey
tt! Sanaid Hoanwirotow nadtant tuebaw'tes ott wot hema o
yolieg souwidant art Jade wowna: ott rot bewxsvet we otinite 5 :
ah ed of ofiateq ed DAwade ena Td egenel to eee oneter ont ‘
gy Voigt dedend al oot we pended aw) ymmgeed dart han OLF27 og
Vote # Ment tae Haw YoOD eevee pn wT nanan |
me Toe Cet ee ee ake: Labs ee RE
oar at marietta ‘ekg: uo Rewher sir saw neltoetdo wht! lah nn “d
me anky son bwsecite te aquthon fy ast yd woitthe wos og
te ats al ever ert «nahi ned cee. ote od. tower wat 6” and
‘ ’ sigrment of errore does not contain the objeetion,
fe Gounsel for the defendant further contend that the
committed reversible errer in over-ruling the “defendant's
fon«for a more apecific statement of claim, at which time the
mdant requested a eopy of the policy sued ucem be made a part
Plaintiffs' statement of claim, same being the inetrwment ayed
on, *
~~
We do not think that there is any merit in the conten-
The policy of ineurance is in evidence; and the dee
nt has act shown that it hae been injured in ony way by the
of the eourt.
Yor the reasons stated the Judgment ie affirmed.
APFIRR ED,
ly, P. J., and Matchett, J., concur.
TANS aint)
stohtootde wale nbad cee toa aeoh atoTte te
NG a Pad Sea A NBS AL ARR Pi Oy SG am Sy UR, aan taaml
estt ‘tat awe ssi Jasdew'ton oat 20h Lonaned
ah bane an Cee Om Rate le
a’ troxbaw9b® uit pat Lutetoes ak torte eid
Rene VAP Res ane ea SP ca ae ESA Re Dig
ond ott sonee ” vata fo ‘to tapos ate bay exon a rot
sang bam od mony ie howl” wirag él Ve Gaon 2 bod
_bewe Paemenret oat" ‘said sie valato wi cna sase “Watton
a, bh. hala WOR a
A a ‘
Pal Anil Set hae Be heey
‘nada i ae Se He ‘epoaye whey ie ¥f
“santo ‘sae ~ pga when pl
gat a swash OS RY By OV, i WO GAG ity oat drut
Bae te
Pe BRR
o"
fe
woh old ns pebade ied Wh BP oddiodan'Ye eelteg Sa" a
ae “a sania ‘ad Bowtie ‘toed poured 16 to aid fa ts
hg Ree cag DORR LR “ite ip RARE ge RRR RRR emits Foe ii 5 fee “Sa
oglu att ory | oa ae
(RE RE REE ES sonnet pla bse HAP Shi eens
Deepa ugh sian SN oa’ ea, Reena) Beat at Sat see aus ‘aaa ha
ah feck
st Habba ae
vane ant fo
prakh Raw bite ack la es wn Ansceiin Meurer Gath ‘tame aN.
ba PARI RGN NE RES >
deat pr SO “Guana tae “oR ka Siok eee Re ah ioe he BR se
Pi ae nie arama ERIN ae GRRE SHORE SAREE RAY as By samuel aii ohh ae
Ai iw ike Ge he Ogle Oe oe ella RE ese sn sahuly
ARTA DRS i RARE ABBE OMS SER RE ae rk gn
(hE DRO DR OEaeny celta abe Ae lane i
ERY HorcraRWE Me Ca ty HORN el SNe ‘Thaaann wt Sey “tan |
RS: % MMC ame AN ER CRE asc ayy ick Mts OT ‘meant ay: “ihes eee. “ate?
day een SRR RE ae OR ee ot ll age aay ot ee
weeny af Igiaraiing ope ae Yom eee aR whine viii blddead ~~
7)
re nie Some .
Be ae ae altuna L Mrneanannile na en ot ae ‘
sa. 3 oma
V8.
a FURNITIRE PACKING
ALY, & Gorporation,
| Appellant.
vey ee
gi ts sang
APPEAL YROM MUNICTPAL CouRT
oF CHICAGS,
)
)
© } Ae | i 4
fw At Lele O44
- im QU
«BR, JUSTICE JOHNSTON DELIVER THE OPINION OF THE COURT,
g Thies is an appeal by the Central Furniture Packing
Jempany, the defendant, from a jJudgsent in faver of irs, J, Cermes,
, Plaintiff, in the sum of $2665 in an action breught by the pigine
to recover damages for the lese by fire of furniture delivered
)the plaintiff to the defendant for storage and safe keeping,
The case was tried before the court witheut a jury.
No brief has been filed on belial® ef the plaintiff on
appeal.
On the trial of the ense no evidence was offered by
@ plaintirr to show that the fire wae cauned by the negligence
'the defendont. the only evidenge on behalf of the plaintarr
Vwespect oY the eause of the fire was the testimony of the
aintifr thet she did not think that the defendant knew the
of the fire. The evidence on behalf of the defendant tends
* that the fire was not cauged by the negligence of the de-
Tha rule is well extablished that when the proof shewe
t goods in the hands of m bailee have been destroyed by fire the
Le Will not be presumed te have bean negligent, but the burden
puoct 4e on the plainti‘f te show that the batles was guilty ef
aa
—
Ny ig rete
So Ee
; emv09 mATOTION 3 ante sea
-ha0 U9 to
«PROD ner to. norma | eee “RR Ene oda, rorrert
tiie? eet ti? Upetaeh auth ed teseee nw nb ni? As A if
Srered .b eek ho tee oh daompbol « omet ptawhanted one yn
onmialy ostt v@ @tguetd weigsa ae wt 208 Ye core ad? at aM looks |
boroviieh sui! husw® Se oUt yo wnad, at xol aopemeh severe of
sgaicons ohan fae egesede tet Foahns'teob oid of Trhtatela os 7
sent, s tuovieaw faves ett exoled holxw asew gare eff. >
fhe thdhakaie ods he Thasiod BY boii nowt Pats 4 sak on i
¢d boxe'tTio eaw coaehive em gaws est to daksd ous 10
gomeghinen edd yd beavaa aow et) vod dealt were of vehsatocg (
Ttitataiq edg to Yhoded me eonebive yiae eat .tandaeteb ould!
oad to eomisood ot aaw ors a2 Lo cava of To stooge “
nde wand Incdae'wh odt tusid lati? ¢om Hkh ore godt? Trbs aby
shat tuahaetob odd to teted ao eomshive edt .antt ane a .
«ih of? te gong ligen ad yd bereno tot aw oeet wet ode id :
tobid aad dard pre ae mnod vet oe beaver od von ithe @
‘te yiliny eaow oofiod ony fect woda of Te dentate er a9 yok Yoo be |
pp. 101, 195, 184; Stondars
© Tl, App. 363, 367,
‘ It ie aleo the rule that there fe ne Legal duty ime
sed on o bailee to insure goods or chattels fer the benefit of
eo owner wileas there in « contract to do eo of a custom exieting
hat requires 1t, Parker y, Dietz, 203 [11, App. 120, 123,
In the case at bar there is ne evidence of such a
or custom,
Vor the reasons steted the Judmwent is reversed and
\@ cause remanded,
BRVERGED AND REMANDED,
ay 43
how hedveves at ‘paemyhat ‘Se ‘hetada “tas td
ee
Pe Pk ee Ra eM ne aes NM) eS OS ES i
er periar
Be EM te Aig mah sat #4 a al US Rt 4
C1 aE I Pe aes ive SD} ey cd ay Ge
Ree ee, eee uf ne at pt Saaapae
én ne tee ett ae ORR ee
ew, Wee RE
od ut eae ak
it C r
vy Sawe Pe
ave ee es
Cie eae prise:
vaewie, wie ta anal
Fhe TEAMS aR ;
aus vay Os Metin aS
64s ty RANE Sa REE TE RE OR aeaal ate c.
eC eh ana
Pe MME Ae ORM ef
Ea Me hala Sais smh
pst ar ie)
ner lee 4k tPA Je
-
nie} aad, dail
Pep Dente Rei MS MD
abRh WOE (Qi stp me gp « we ws
«443 = 32273
Aap
‘PANEL 0 tmoreRry, )
APPRAL VROK CIRGIIT COURT
VB.
CITY OF CHICAGO, a Munieipad
Gerveration, ILLIA B, DRVER,
Mayer of the City of Chicage,
an4é MORGAN A, COLLING, Chief of
Police Departsent ef the City of
Chic .
oe Apnollante.
OF COOK COMM TY.
mo
i «a
we ad
b
I,
ete oe
fps
af
: a
" SR, SUSTICR RATCHESTT DELIVERAZD THE OPINION OF THE COURT.
a The defendants, City of Chieage, ite Bayer, and
»?
. Chief of the Police departaent of the City, appeal from a deoree
by which they were permanently enjoined “from iliegaliy interfer-
| q ing with Deniel O'eherty, complainant, in any way, shape, manner
er form, or disturbing, trespassing, molesting, herascing or in-
terfering with the vesceful enjoyment, possesrion, use and epera-
tien of hie business ag a real antate broker, at 762 Sast Perahing
Read, in the City of Chicage, County of Cook and State of TLlinois,
oF from wnlarfully threatening to arrest, or arresting any of the
exployeen an@ patrons, while masting together in peaceable and
i. assembly or from whlawfully seizing and eear'oning the pore
| t0n of complainant, or depriving him of his liberty without due
r pr sess of law, and from searching the persons of the comp) ainant
others om aid premises, when sangaged in lawful eccupations,
rc from searching the premises, without warrant of law or au-
jority, but nothing herein contained shall restrain the Police
teers of the City of Chieage or any ether law wnteveina atficer
entering the wald premises in a lawf'vl manner uid in the
and lawful exercioe of the police power, or from entering
The cause was heard by the chancellor upon testimony
“Raman TINBRT A mo amram
“perannod = toad
ak a | aun 2 tat re
‘ + eed oH
s ‘
ole A BES } PON ait a im
ine a yak tk 4 ant
‘isp vii oN
En a
-pertveO wnt ae aorerde rr eave rat PrhotAa Wee , ai
a pee aaa nS MER EG
Baw TOY aah. 19080 bo, ta, eas Staabaeten ont
satel @ mores Lie eggs sUtlO 948 to toeastogeh oabiol aft te
~netsodad does monn* hextelae X12 Mon comcenie bos ci wn
gatiecet fawk S20 de \sextend Staton Look @ wa non udnvd spe
umtonaten Ye adatd hae toed “ko ytmced jeanetay te ean ett mk hi
i iid xe wet te Pnwnaw derony ko 592 dno te ont aabsoxae
gab kot ore vc ce ktade Senkasaos akotad aatéton ‘ted
woartte aateretas wee weno Aol 16 ‘neee § te no he ear ™
taken in open court. The proof tended to shew that the complain«
ant, Daniel O'Doherty, was the leaves of certain prandiseee vituated
fn the City of Gnicago, Cook Gowity, Tliduois, known and described
as Ne. 752654 Kast Perehing Resd, holding the eame under a written
Lease dated April 10, 1925, for # term commencing uy 1, 1925, ena
@zpiring on April 8%, 1927, the written lease provided that the
premises should be oceupied for cigar etore and wort drink porlor.
| Gm April 23, 1995, complainant, G'Dokerty, subleneed
that part of the premises known o@ Fo. 754 to Jehn Lytten, the aub-
lease providing that the lessee should ccoupy the promises as a
store-room fer the eale of soft drinks only. It appears that Noe.
182 and 754 wore at one time gomnected at the rear by meane of «
door, whigh hae alnee been closed up by a eolidA briek wail, The
prentons knows ag So, 754 were twice raided by the police, rilty
a having been taken out om Getober 6, 1983, and thirty-one, ine
eluting complainant, G'Deherty, wore on another oevasion in 1923
“gharged with gambling.
y Gn January @, 1926, complainant obtained «a real esq
‘Sate broker's license from the Gtate of Illineis, and on January
8, “1926, ® Similer License from the City of Chicago.
Om Cotober 3%, 1026, the Chief of Police received
atten notice from Henry Barrett Chamberlin, operating ¢ireeter
I the Chicage Crime Comuinsion, to the effect that complaint -
Cy been made to the offices of the Commieanton by telephone from an
, source “concerning the follering alleged gambling houses, *
ng others naming “Daniel O'Doghorty, 752 Bast Mth etreet, firet
00 » hondbeok," Gn Hovenber 4, 1925, Chanberlin again tn writing
; Ait ed the Superintendent of Police that "on Menday, Sovenber 2,
me person unknown ta thie office telephoned tat the same places
0: A to you a9 alleged gashling houses in my letter of Geteber
oti running, that on Saturday and Sunday they were
12, patronized,*
Sg TN gE OT OO
g,)
ian
Ne ot A ge Naw lle j
Ya ae oe eh
othatywoo gid jad waite oF babaed Tootg aaa
Meeane te:
aetiiaw o i omas if? auth tie sho i widened tek mn
» Sek Pinte a
bay omer ft ye pakomemmon ated @ tet ane 408, idagh
oat dade bab ivexg oaned wees iiwe oat. eer Qh kinga wo
stoking amt otom has exave stage Tot he dean o ot bios :
boaee (due otrxodad! > etomaio Loum ,8Ner , 68 Linea ao | , .
afise oth ,e02o—L aol OF BOY Lok aa samt non teotq ead Te tae
& @® soa kwnng matt Yeuooo b Lu adts songed, ba fane aaibivere
90% sade oracqqe #2 .¥ tao axtabed oe .% tes asls eh og “
cient , aaen ‘a, toot onl? fa beteonnae watt e046 9104 ae
ee hkaw Yolus bikos 6 we oo howots mood (Momo ane ho kite
eee cre ee)
eet apatiog ont hod bon ter eokwe onnw oar <0 “ sotbagget 92 hat
apa
oat apatonys 1 alt baw 1888 2 xede200 no hse nodes ‘stead 8 é
NRCG TE sa cs oa 8.
‘ener aa notaneve “ont on ae exer cot nested 0 0 «aankaiqnes
ity
hay depen poitos rt» etn oda RRR am pb 0 is ‘i
Totornth padsarnge Mb Leo dwedtd $200, wom moe! po bton
Syeda “ques testt teeta edt of) .aolnmdened eal onae to of
ne oasen AOR I ARN NA byt, 08
Onned sunlidnmy Deyetia aitvecto? att aataxennes* anes
fark? .geqrte AtM sand KET AOA NEM te A fe
ft aaduovot a Wha ae data, oobser eat dire has
Reon le ons ess taste sential, Aion geen Jiu
: sit sre wat ata bm
The bill alleges that members ef the wolice derartaent
ef the City of Chicago, vithout warrant of law er authority, ine
yaded these presises on January 15, 1995, and mode an iLlegel
search of the premises and of the persons of complainant and other
‘M@ployercs, and that complainant “Le infarmed and believes will con-
‘ tinue te visit said premises and ferge their entrance thereto,
@@arch your orator's persom snd the premiges and witheut warrant of
‘Lev or authority, and have so stated and threatened to do, at any
time they were in the neighborhood.*
+ the evidence tends te anew that on January 15, 19258,
two officers entered Be, 782; that they steoped ome man ag he wag
"getting wp, sid that these officere searehed everyone who ware in
Place, including the complainant; that they made complainant
up ond searched him and ordered him to the rear; that they
ket hin to oper « pale, whieh he told them he 414 not have te
}, but in the meantime the other effleers were searching and
ered the occupants out, sn¢ told them if they came tack again
Would break open the safe and leek them wp; that the police
cere forced open the drawers to eomplainant's desk; that when
searched complsinant they pulled kim out of a chair, went
eh his vest and took bie beok. Compiainant says there had
no disturbance pricr to that time; that there was a 4eck of
"but no one playing at the time;* that he did net ase the
re isee fer the purpose of gambling, and that they had not been
used at aby time since he secured the license, He says the
1 ce officer told him at the time that they would chase anybody
it there that they would find.
One Ceay, ah omployee of complainant O'Deherty, tes-
hd that he wae o licensed resi estate salesman to the extent
lat he had an acknowledgment of » receipt but had not am yet ae~-
red his license; thatyhe was present at the time of the entranced
ana wetton vice” tee tbls ‘Yastt’ ayer a aid
Ser we ee vee etal ‘erie va &
ee me Th Boge cabs
ee ee i
ote ei ne ieraaad &
=a tbe “nabs tthe Fis ‘Bedebral ar daeakas Canad tan
‘bide bd Riahes Gini bored bie soelanng b i ike oe
to revnivahapanoal porate tents ‘ie a *
TARY Wat)
Se eee es
fi eid yi ‘as ‘tt on ional ei edt ie st hasan’
Micki’ ‘SB eae ‘pads ‘dis 2 se snttndon cae
ty aide halos ite SF ht ‘borane 10 hind ma bai tne be
eiaihar lh AG tele ra wien Shari sland Cae
“a siohied aa Kae” mut ‘ematd” Blor ‘od par oten ©
te Bd ata. Pat Pe? gaat 1S Ae ta
ia, patdetmen @tow expe hte ‘xd utd aonke mao 4
oo A I
aren dand sane wot 2 anes biod baw a ane Sisadyeoe
ait a ON oe
setter one Yard ew wld ‘ipot ‘baw’ othe outt exer toon NN
AES AAR. ARTS. RR MSE Sally ate
ane ‘yas Yaook ee ay +e orem ast nego Le edrl
SRR aE ea Fake OA ORT AR
hd vase a0 tee Ak boty eos dnp niet
\ Nei oneal aoe ‘dont kao stood abit te ob ban to ia
‘2b bed 2 Bew dtodd dad yous: homli Mh rian, 8
witd! iiy dad’ BLS ox Sekd pombe ote "de paige
lanedhion Ha aie “Hail + ha signi ta rm
Dennlbshanaaoll ebisene ‘oat bouden od be
a 5 Bia Io po a mae ch ls
Hy bina Bu r i an Rust
pb yy
ria it lilt .
ce i ou ee i at Bi le oa |
NM
* of these pelice officers; that he wae pulled out of hie chair and
“the officers went threugh his clothes, wut their hands in hie
| poekets, took out the stuff they wanted an4 gave it bark ta him;
that before they came im the witnese wan talking with Kr,
ees. and that wan all. Cooy gaid he had been in business
for his own account fer a salary in Ghicago ae a soveulator mere
than anything e@else; that he had not been doing anything for some
tent months, and that prior therete he was in the stook ane bond
nt
)
Dusinens; that he had been practically idle eight months, travel-
fing some; that O'Doherty had just opened thie real estate place;
a t prior to that tine his eele business was the avTt drink parler
oa fA eating heuse, wd that he had been in that business for ten
p GOrYicer Doyle, whe is ete of the parties whe made
[oe raid, teetified that he had a telephone eail with referenee
the place; that he went to the rear of the glace amd found about
m men, pogeibiy eight, sitting at a long table; that they ar.
isted everyones in the plage, telling them that they were police
cere, and that one of the men was surly ond said that “he knew
leun well we were police officers,” and would not stand up; where-
thay gratbed him by the ceat and cot him ep on his feet and
@arched him; also that they pulled owt a drawer in the table be-
hi Rd the radiater, looked in several other places where it was
: eed something might be énnadndion bat did not find whet they
lecking for, which vas guna,
Thea other officer engaged in this raid, whese nawe vas
*, teetified that he waa connected with the Detective Bureau
that when they went there they found ‘four er five people
ay |
ai
‘Mg cards, #0 they stcod them ali up and searched them; that
ne of the men eaid, “I know you ore police officera;* that thie
ra mow ahout A ii wp, 9 they took him by the coat eol-
us WA Ay
that he. the witness, went inte a baek room
Boe Alan ali te tun beLing gew of Init pamMIito wohton ements
he cit mbes thot fey yassitete mbt Masons aiid amore
pats et Asad 22 wrag hem bm dria verte Tite att site Moot , a '
ati Siw gattiag exw sane be watt ak esi ‘yeas oxotad ¢
_ mrantend ak cond Rest of Dhow yaad fhe aaw asd Bete ,
ton todalsougs 4 an oye id) a Yeates « tot Fanogom wwe Bla 9
ores. te% gatdiyas gattoh annd tea hat od tadt yoate ae
baod ban toot ots al gee en otenext tghig tons bee,
efoverd ,aciaom teigte efbt ~tiankdoexg anet bed on tase
pomalig obetan door shit bonage Sent had yraoade
ralgzag Uaixt Troe os? gow sewntied oLoe ata oaks taste, ot Rink
tot tg? ceemlend dans BL aeed hed at hans Mt, erent We |
ese ith
ne ve
ee
, SOR BAD BONG Row Fae pas por i ay
‘obee ose, soeeteg aute ‘ho ang poe ‘te F ootyut, Bd Shed f
Re Sa ry Heit
congretes ee lw Line sagdgetet # est on eane phic hd e 3 ! *
ert bawte goa hive bre 1 Sermmetnte vetoes wow ow api
bao got wht go ay Bis Foy dew tego sat yo ts Dedtary yosld & OCH
«oF Ohta? od? uh Yewarh @ due ‘koLtug you, teat opte Lda then
saw gh sassy apoaty taiite Lewy rps, teh peteok ¢tosakhat hatin 960 bts
gods duaty hath tom Bad sind via tegegen. nd spin 9 cert kia # hae EEE
rey oy a halal nie ne
Pa *) te PR ay yl
abst; eas m sarap, sihten pecs *m ”
oie Fano salt yo gabe anot, eed, om oh
BOOT too’ « noed dew ,waomtiw wat od haste
ee eae
and asked what they had in the eae, and wae sxewered, “Nothing at
pli;* that he sake’ them te open it wp ams they salt they wewld deo
Bething of the kind; that when he got out oe! the door be aaid that
they would hear frem the officers later, |
; The avidence shows witheut contradietion that the
efficere entered the premises without a searek warrant and without
& Warrant for the arreet of any person, The briefa for the City of
Chicago discuss ot length, with mumercue citations of autherity,
@ right of police officers under statutes of the State and ordi«
ef the City te arrest and search persone and premises with
warrant, but we 4o not think that a consideration or determina-
ef the questions raised im that record are at all necesuary
to a deciaion of this case,
We Ciimk 1t fe apparent that the things whteh the
metion restrains the defendants from doing are so indefinitely
stated as to sake Lt impowaible for any official charged with the
. nforeenent of the law te determine what is or “hat ie not theredy
| Fert: éden. The langusge is so general and the order is 6o Limited
| 1 y that provision, which provides that nothing in 1t eontained shali
re rain the police officers from entering the premises in a lawful
mer and in the proper smd lawful exerciece of the police pever,
: ‘At would seem at the most to amount to a direction te the
? lice not to vielate the law withent giving them any information
2 to the specific things whieh they might er might mot de.
Tt has been so often decided in this State that the
rule ia that ceurte of equity will not interfere to reetrairz
eiale eharge’ with the duty of enforcing the law from enforaing
* that it should be unnecensary te restate the luw on that eubjec
t has been specifienily so held in Poyer vy. Village of DesPlaings,
* “TAL. 122; People v, Barrett, 203 111. 99; Chicago Stock Bxohang
Claughry, 146 111, 5372; Shekel v. Roche, 27 t1i. App, 472. If
| 4
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oh bbw wat han: cared eens. age Sk neq of mut baatna eat tate”
dams Dion ced neem nais Ye tae: two get meat dads phaka one t0't
| Ee ADI gs aMhdad erent ee nae mec t how Bite
ag task’ aghdeliattaon Soni aoe nwode agmebl we ‘pith: ai? an te
teed eben deuetat:doenes actuate aenkansy emecbeereh | a
— Payee eo ae nar. wtoled ent Blom tea Yale Ee: 5 ere ak SH ie t
_ac¢tinetivs ‘to who tins te eelerenwe Ay te ymngaed to naween® oat hi
nthue fag wast og To aedutete isha away trte 96 2teq to! diye’
Hite neakerg hae eaceteg doting hae tenets Oe FO one cor
ere ee er eee ee Peatia”
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onan elie ro note toot "A
een in er ee |
Plodtal'iedad om axa yateh uw’ eotedne tes wilt eaihortewe Aghios
ee eo eo ee ee
qionad? toa ei guste 9 wt dose eatermdeh eo wo. wall Tor amnimme
bediols ot ab sobre ait bam fesrseg op mh wpompiiat ea Cm 3
Linde tentedaco t2 nk gabon dad? moblvoxg toliy ymelatvong ¥a
Gate a at esekeore ast galvedae mort woot ie notte wae! atadt
teweq #ehiog eA? to ea lowers fytwat haw woqety wal HE Nie noel
vat af aoltoothh 2 oF Smnss 98 Soom ost te Kone bivow OE i fs
ao rinercoltmt yar medé quiviy twadtiw wal wah sialety of Yoh wale
yh hen detgaet We eter yente alte opie wit towdel edt oy a
ails gut? ofae wddt mt bobtoods amsta ‘sw’ apmif nan ar O°O9! ©
atetieen of eretxodut gor Lge ytiage Ye aroed’ tedy! of me 3
gniovetan un? wl ot yatorotis To eewk bey daly hegtade WE t
po kdun deme us wok so sbadehw od yanebowaeie amb tibet ety
Yom etl eet bite peslaeanytiene wen’ 9
La PRO Vega LAKE Wey
iy bathe | iby: at 28 ore sche et Wah SER, 9 SiR i ong
eis any exeeption te that rule in thie Stete, we heve not
gited to s cave which mo holds, CGicere Lumbe
Til. @, te cited and relied om by complainant, That saes is
Ly distinguishable, in that efvil rights enly and net the
ad inistration of the criminal law of the tate was there in«
The deeres of the trial court ia reversed,
REVERSED,
yy, P. J., and Jonnetem, J., soneur.
hop rae. Rec yah Winget Or calaeae Wh ap 4 ve pe a? A eh wane” Saha
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wfth one at ante ptost elf to wad
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ABE SWERDLOVE and SOL WATUS, )
Ee Appeliees, ) ASPEAL FROM CIRCUIT couRT,
hb j
| Ve GOOK COUNTY.
| [US SHAPERA, EDTARD GLASSER }
FRED URISS » } ss \
Appellants « j .
Fa |
WR. JUstics watcaerr psLiviney THe OPTNtON oF THE co RT.
¢ In an action on the case for false and fraudulent
mitations, a jury returned a yerdict for plaintiffs
damages in the sum of 82500, upon «hich the court,
motions for 2 new trial and in arrest, entered
mt, from which the defendants eppeal.
= The evidence tends to show that on April 28, 1924,
4 h plaintiffs purchased from the defendants one hundred shares
} in the Adams 43rd Street Garage, Ine-, and alae purchased
| : eo garage business conducted under that mame at He. 914 East
| Ard treet,
% The pleaimtiffs allege that they were imiuced to make
ich purchace by false and fraudulent representations of defend-
ats te the effect that the garege in question was doing a large
| profitable business, was paying large dividends, yielding an
jeome over and above all expenses of $500 a monthy that the
. » With ite equiguent, leases, ete., was of 2 value of
Over and above ali liens and encunibrances; that the garage
8 fi lled to cnpacity with about eighty-five actual rentals;
a } the garage, with its equipment, leases, good-will, ete.,
3
& by the corporation, and that defendents were the
1 be ‘ef sll the stock of ssid corporation; thet the same would
yi
al
223008 FTUOSTD KOAT AAMSA ‘s
oTTHIOD 2068
bea a A 3
GO A. ok hLNG
Phot mer fo worerce sat cenavnrat TOT
teelvouast Sao eeist i973 eeav ede so aobioe as ak
arissaialy xe tolstey = bosmsex eek B 43
__ sn state me, St tow 0
Aexsans afeetre gi bus Leitd vem 2 tot enokion.
i“: ghee atasbaeteb ets deide sext
er Ah Lhugh a6. sats wede of abmet eomsbive ott -
aerate bern eee one edmebactesh e828 moxtd beastiow, et
heessiote Osis bas ..onl .ogeteD deat sath nineteen 26
gasai aie of ts Seas tomit seb botesbmes eeerlasnd .
= elas ei becubul sxew yodd sad? egeiie eltiasteig ae Be
-bap tes % aaelinsaeseiget iasintuay? bas saint w canal
eguseil « gehen was agisasuy at seeing oss Jasid seotte ead “ ad
as aatakety sahusbivis sgisl amkyaq aw csaculesd olds :
cxhetens fauton evhi-yedsto suede athe gioegee « ot 7
e399 giliv-boag »asenet 2ecom taps ag Siw as aa : as &
one
be transferred to plaintiffs, and that plaimtiffs vweule thereby
become the owners; that the total encumbrances against the said
public garage business was €2500, payable £100 a months that
the debte ond outctending secounmts duc and owing by the eor-
poration woule not exeeed the sum of $200; that all ef these
Tepresentationsa, upom which plaintiffs relied, ware false and
known by defendants te be false; that the business was not
profitable; that they did net yield an income over ond cheve all
expenses of $500 a month, ox any other aum, but haa/e long time
been operated at « leses; that the carage was not of a value of
$2600 over and chove all liens and encumbrances; that the value
ef theysame was leva than the amount ef the liens ond encumbranees
‘Ogeinet it; thet the garage woe not filled to eapecity by sightye
five actual rentals, but, on the comtrary, there were no more than
“thirty-seven cor: or automobiles which were actual bone fide
Pentale, and that the income from the actual rentals of the
| @arage business was ineufficient to pay the overhead cperating
| @xpense; that there was «t that time an ordinance of the Vity of
Ghiesge in force and effect which required any pergon conducting
| the business of a pudlic garage to obtain @ license therefor; that
defendants had applied for such license te conduct such garages
and that the licemse had bean denied; that the miilding in
: ; ch the garage was in operation had been condemned by the
fii department of the City of Chicage as umfit fer the public
business, and that the fire preventive department of
City of Chiesgo notified the defendants thet they could not
in or conduct a garage business at that places that there
fe outstanding accounts agvinet the ssid bueiness of more
mm $500 unpaid.
The various propositions submitted by defendants
_edeteds Skanew wPhkiaiaiq. tals bas eathisatate od bexteTaaess re
bhoe off tontens agomntdmemne Inted edd sand ee
i909 eft ed gikwe has oud sndinestbrgdiniiabated gag at
eueds: 49 f4 sant ,GOR) te ave of? beeexe fea btvon anbtoni
fen enka ertw .belLor e¥tiiaiatg dobdw wean’ sonok onde He
gon anv’ geemteud ede fat? poutet oe o¥ ndanneo Hs | ns v8 se
ike ered 7 ree amoons ss Moly fon bih yodd dadt tofisnetien
aks gmoc o\bed Red gate seskto ue 6 edison a G08) te oe eeogm
to obfey « %@ Jon eae Sgetag Oot tats tank a 9a badaroge ana
outer od? gait Yastneuayons bas onoht 6h: pendingoccaby.
neonmrrimuons’ ba! seokh et? to dso odd watt anbd saw & i
«¢giyle yo Yhosged oF DOLELY tom aiw egerin’ eas’ ‘tote 4 omtn ,
ted? ovem est exow otedd (erednos wit do’ dae yatednet Laas
et subd Lagtes Wrew doitw volhdodetus 46 Perr
sit aEsimbe Enon ot i sho tna
"yabteregs haseteve oily yaq 63 fwetolttwext wew awenk
‘te ysiD ott to ‘eoieeckivtd nw nk) Yaad bw Waw ae va
yaks owbaod neared ate betkapet Soide toetto bas: enw? a
Saskd ytotenons purselt » abstde ‘OY sgotag oiiong’ a “to
eegexng Sows toubkde oe ‘bodookr Moire 18% DehLaye had ot
ee palbieud oat todd jhetwed mbad bed semvoet ad mm
oid ue bagew anos mood bad notssreyo at pega aot oh
eiidug edi 10% dfn ox ashen hee eo oad Yo Sms tage wl
4e dnomdasqeh ovisaoyer wt Yt bas Fide wie’ ” sadtelae ‘wyiil
gon Divvs yous son) admutmo tes bad" bontaton | 0:
waend tadtd’ bienneck saat oe hissnanl bent - Howbe
aa niieay >
ai
a
A}
Py
i a
ethintt 2
tte
=3-
@ll go to the point that the evidenee im the tace woe insufficient
te support the verdict and judgwent. efendamts seint eut that
the burden of proving a fraad is om the party alleging it; that
the evidence te sustain a cherge of fraud suet be clear and con-
vineing anc leave the wind well extisfied that the allegstions of
‘fraud are true, that ae a general rule false assertions concerning
‘Yalue are not actionsble and do not relieve the vendee of the
— of investigating! that a party hee a right te
genie Ris own property anc is not bound te underestimate ite
Yalue; that fraud must be affirmatively preved like any ether fact;
“that where transactione are a2 @equoliy open to an honest interpre-
‘tatic: as to a dishonest one, good faith will be preaumeds that
mere concésluents Will mot ususlly amount te Preud; that it is
t } duty eof a vendee to infestigate fully before purchasing; that
ffs connet recover if they cic mot rely om the representations,
ef which sre elementary prepocitions of law as applied te
ef thie character.
A fraud is a false representation of a material fact
» with kmowledsce of its felsity or im disregard of whether
| At be true or falas vith an intention to deceive, and whieh
a deceive and which resulta in injury. ‘Ye have examined
4 hi evidence in this cese ané are constrained to hold, mot only
we camneot say thet the jury vase not justified in returning
@ verdict or the court in entering judgment, but thet ony
her verdict or any ether judgment would have amounted to
age of justice.
= dven if it is coneeded that the alleged statement
| 7 | te the value of the property was omly an expression of
nh lon and therefore insufficient te sustain a charge ef
2 wad the other cherges made and established by a preponderance
teeiciViwenl eaw aaae of) sfvesmehtve eis sans ¢etog°egs ‘oad
dosha: iso. taleq eisvhastol sfapaghut Boe e9tbesyonsa. 3
gads gdh gaineiia tied eds me et Suext ooprivetq ote
acy bas tnele ed dauy. Seas? manana cone avbives
Ye emoldrgatia ou? dats belisling Liew bain edd eveed beegeten
guisnesces eolrgeces eniad eign Larsaon a en teddo pees ete se
eit te aehasy odd _eFailes- gon 65 oe Sidangiian dea 9% oes
oe a ck a apeltcgiseem:. te yes
wth. adoulsastobar. ot Snued son.ed-bae. g@usgome nsie-ats-2
tos sadte Yee efil Sereny qisviiaesi tts ed acum Sued
~Sigueiai gasses ae 94 mege yiicaps sa a74 eagiéagement
_ dead qbonuscig. ag Lite dtlel boos .ane geamedsts 2 mn
eh dh dad? jhev? of dayome. wilowes Jom LEke @ aaneilii
Gass spats oaks CLO. fey lzeenad et webeew ie on gaunt
(+ ado liainagesqss est a9 Yie% fon bio yous 2h xoveses dommes BThhed
: of Reliugs aa wal Ye anchsleogery, yisinomele ere deten Tel
0 eas Sse $2 omeis lo ta te@genede efet
ten ieiteies 2 to settedmpacigst. ostai & af att al ;
weddeds Ye beagexets a2 1 eiteds?. aah Se canbekenns a jie ety
Reidy bas <ovisess ef golinatak ibaiate etek 19 eusd 4 7 |
ins dee abfod @F pemtoxtense Pee 2 has. anno ata at iat gam dai oa |
guleimést ak Seltican), jon ase qual ede ease sagt x09 2 |
_ Was told and .tmomyaul, gaisotas ah soe. este, x
(09 Sedtuoan over hives tmeagbs, xedde xpe 2 moors
“dneams ete bapesia ws tame | 2 ven ign 4232 noes won
te pelesomgse sq (iso uaw x nee meet
8 B3
Ye opiatio Biatows of smoker vivant exetowidd ban
sti wo Pagar COLT
Seen 8 A.) pods idatas bite ote
ngs geld loogeene ¢
the evidenee are more than sufficient te justify the verdict.
the jury were justified in believing thet the plsin-
Telied upon the fise statements made,
t the reason fer teaiting to
might have
ome of which was
5@11 the garege was thet éefend.
more time te devete to another business, whereag
ihe real FeSsOR Was that the city had refused te issue a Liconge
a the reconeendation of the fire department. —
The jury was alse suetified in believing (chich ve
hi ik the evidence showed beyond any reasonable doubt) thet
te Gefendents represented that the garage waa bringing in
thet aseured & subetansial Srefit 16 was not im fact
im enough to pay expenses.
“mY ome of these false statementa, knoringly made
mwhich plaintiffs relied and were cemeged) is
the verdiet.
The jucgment is gust and it is aifirmed,
| APY IRMED,
sufficient
iy, >. Jes ond J¢hnaton, de» Concur.
Lgintg wid sad pabyetied Bf pottizesh ose"
haenimamsasancsite
quanen ade Line 2% gubzined seX:
ge deida) ‘patie!
See Ry
oe ats
Aersss
4 vs aN ae ee ae
. Se. pp tee Fees gee Teak ae See
‘
e¢ dnoteatiee aoslé mono msi ot :
tunes sntusanks et OMe 8 :
sapaes ob eaosseeiot baw eob ¢%
teih Be 2a Blea s oak peasagtnietine
res a 4
re = st -
— +
oe aes
i atpaeesas. pases ena i ete | ia ‘wit, ian ;
ee a
whe amt, er
in ote todd gebeemen ah 42 9% aoe
Yiee oar: blatas aca ao » — es
% fe oss ae a2 fg kek
= 31333
- woxacs L. BAARD, )
Appellee,
APPRAL FROM SUPERION Count
vs.
} OF COOK coUNTY.
RY BARDSLEY and
LE D, BARDSLEY,
Appellants,
Dy | A TF ‘ (
fd “ER EE holies
BR, JUSTICE MATCHETT DELIVERED THE OPINYON OF THR COURT.
The 4efendants heve perfected: this anneal from a
. Higment ageinet them and in fewor of the plaintiff, fer the eA
of $906, entered uper the verdict of a fury, after uetiens 7? ®
trial an¢@ in arrest had been over-ruled,
| The firet point urged for revereal is thar the court
er ed in denying the motion of defendante in arrest -f Judgment.
zh @ motion was in writing and vas stated te be wtte upon the
rr mné that the action wae an action on the gx«8@, while the aver~
r te of the declaration ehewed an action ex contracty only.
| The declaration in question, in the introductory
thereof, states that the plaintiff complains of a “plea of
re pase on the cage,” and the record discloses that te this
@claration, which in in three counts, the defendants filed ploas
} not guilty, which were appropriate pleas to an xetion on the
12 . The verdict of the jury wae also in form responsive to
ab an action, namely, guilty, sand the recerd shows that the
; nts in instructions asked in their behalf requested a
er et in thet form,
The declaration in aubetance averred that defendants
leesees of the plaintiff under the terus of a written
ase, which was attoched to the declaration; that the lease
ee Tied that the premises should be used by defendants for an
t studio, and for me other purpose, - that under the terms
a
ag
“Tew rn wine’ ibaa
fe ak alld ait Be ae
ar rat ay ca Key’
iN
7 efile dt a So
ieimebnenrct cia artes Oe ag ME C78 fink wih bi) veshnin i
_ 700 EE 0 NOTRE HY
a aeons, Seen. ‘ee Aevow TTY awa si ant
|
.
erred edt tohagy fast +
ef the lease, the defendants scimowledged that thay head reaelvad
the premises in good repair and promised te reatere the same in
that cendition with the exception of erdinary wear and tear; that
they weed the presiees or purposes other than these for which the
‘Same were denised and neglects’ their duty with reapeet therete,
to the damage of the piaintifr,
| The defendants contend that the plaintiff? has mistaken
‘hte form of aetien, and cites 1 Chitty om Fleading, page 200, te
the effeet that -
"In order te vrevent the confusion wuiech migst ensue if diffe
ferent forms of sagtiona, requiring 44 fferent oleae and differs
ent judenents, and of a 4ifferent nature, vere allowed te be
Joined in one setion, it is a general rule that setione in
7 fern ¢5 qontzaets eannet be Joined with thove in form ex
i They also elite and reby on the statement of the same
iis
_ ‘Suther, pages 264-8, to the effeat that -
“The consequences of a misjeinder are mere izportant than
the circuwsstances af a particular count beine defective; fer in
the case of ao misjoinder, however perfect the counts may rege
pectively be in themselves, tie declaration will be bad on a
if General demurrer, or in arrest of judasent, or upen error.”
In their reply brief, however, defendants shift their
ground somewhat and etate their point te be that, having inetituted
euit end the nature ef the suit being determined as an action ¢x
Aiste, it was improper to join in the declaration counts in an
. tion ex contractu,
| Purther authorities are not cited, nor are we ine
by the brief of the defendants what partieular edition of
he several works of Chitty te relled uoen, nor are we informed
by defendants, in somnection with thin shifting position, which
arti oul ar counta of the declaration are regarded by them ae
sing in tort and whieh in contract.
After a conelderable search through dunt covered
8, we have found the quotations from Chitty upon which
ante rely in a volume which, the preface indicates, was
= Tareas Se <a
Anon ONG ie EA
——K—<
bovivost bad ep ast teddy Seghs brome chnihentah Ld <ooaes one %
Bryy ive
ak amen edt orotees * nonecne 2 A ‘baa ckaqes, laaiodiid seo:
atke YR owes sityhw M6 bie wolentios ant danvere of 4 . 3 ‘ae :
wmrarthh hom gaol tomwetiih gaixiever. ,eagiten to want damnek,
ag af bewel ife dil Wager YnoraThih'a Yo baa meen -
a eto ah euee we" nary’ ie'beahet od + 7 Sah
ia he ahi as eae (
Sey te
wae ahd bil + nepiee ¢ aie att a9 ater, hae, s othe, ents, yet, Restiae are)
se 4 * fad, toes out. oF duit oa se
af cat certnnee aa ot siisishts fate Os be Ged ms :
1 Pa ae ek sth dbvinawlar as %
* WORE manger Hoy hrapaG has, ‘te ‘tuekee. fr 40 <xenumAh Leong
‘thet rae) ‘atanhae kop a herengs, ete hid eeaee, steal Kew oi "
hotutitaah gutvan .fodd ad of dahow, about aisda fas deciwece :
ao, .ripttas au ae dealereteh gated ttua add to oratan, om
ae th adage Golteratoeh 443 92 alol et teqotgml sew #2 pied y
perevon temk, caning: win ® ron esa o 99
Listed aoe, WIS LD MOG R- whasds i Dh died
sow .seteothal son terg ais ytle Rater, gemekn: a at vier ae
pared by that author prier te the 7th of Nevenber, 1403, and
ul %
my
wh eh was published im 1878, [It wae ne doubt improper at that
‘ {and under good practice in pleading is, we dowbt net, still
woper) to deolare in case when the eotion is in faet in aeeumpeit
or to join in the same doclaration tounte in ease and in seeunpsit.
(se Gebbert v, Packington, 14 Gnglish Common Law Keporte, page
152.) Prior to the enactment of the gtatwte on that subject, in
: ‘ormity with the generni rule, it was held in iilinole that
te in treapase and in ease were impreperiy Joined tegether.
iradbermy, 80 Ill. 82.) These cases alse bold that in
ef euch mliejoinder ai ther ef causes of action or gounte the
“deeiaration would be bad, and that a motion in arrest of fudement
2A be allowed.
That either tn action in ease or in assumpeit is
oP er, and that these are concurrent renieties fer wrongs auch as
th se of which the plaintiff here complains, te held ta the well
@onsiderea case of Kevin v. Pu Pals Yo., 106 TLL, 222;
that « misjoinder ef counts may not be taken advanstage ef wron
4
etion in arrest of Judgment has been decided in ©, & A. FB. Be Go,
r. Murphy, 198 112. 462,
The statute of Amendments and Jeofails, Snitheliwrd [11.
+ Stat. 1925, p. 1li3, chap. 7, see. 6, provides:
*Judemont shall not be arrested or stayed after verdict **#
Fifth «- For any miapleading, insufficient pleading, laek of
Solor, wissontinuance, discontinuanee or misfeining of the ioene,
or want of a joinder of the iseus.*
The first contention of defendants therefore cannot
a In the second place, defendants contend that the Judg=
‘ian
a ent must be reversed’ beeaune, a9 they say, the record fails te show
hat plaintiff mate a densnd wson defendants to pay the ameunt of
%
Y needed to make euch repairs as were required in order te
-
a.
‘4 ae
©)
Peer 3 Ay aay prises, WON: PE Re ip
ny “Hoqunee ate vane at aoatou ae i taste
AGAR i ARR Were Re i ;
ifow ash mf then at vamtscemio oxo ¥
ke fir =n H Hos ay ie wy ieee
see, bd ey sna 2 ; tn soa ¢
fae
et brvlinsds dct \edtetoet ‘ban ao'at asa Ne » Monee |
Sh SAS ghivowy 6 otek (¥ ageme” Cth ie Bi
wan guihaey Beret — <b bodoores of Sau Se me
Hehe ae ‘hare au,
ade te" padete ta ar mi Noo
i oe Dah
3
PM tis Ca okie er iii bg i ad A ROSE: Pe ‘al beanie
whut, at, Foat, heaton ntti wait a: 08 hc
thee tee wee Lae MER tht alan ae st Gwe waratare M
ipestere the premises, Thies sentention, however, ie incensistent with
ee assertion of defendants that some of the eounte of the declara-
tion are in tort, Our attention has not been esiled to any ease
where it hae been held that a previous demand is acesesary in order
to maintain 2 suit in am aetion wpen the cane, Defendants cite
a net Palmer, 99 Tl1. App, 899, which wae an action in debt
“upon a bond, and Baker v. Whiteside, 1 Breese 132, which was an
acti OM upon a contract for failure to convey a lot of growd as
ty,
“@greed, neither of which are similar to this case upon the facts,
lt It ham been held in Chicage Rock Talend & Pacific R.R.
Co , 125 TLL. App. 2, thet notice te the defendant be
brincing evit is unneecsseary in an seotion on the cage te ree
for nersonal injuries, Im Niemeyer v. Brooks, 44 111. 77, it
te hel4é that in an action om the eontract a demand is wirneesssary
wn ooe there is an express stipulation im the contraet te that ef’
, t; and in Yard v. Montgomery, 67 111. App. 346, it was hel4 that
the cireumstences of a case are sueh an te clearly show that a
4 would be entirely unavailing, « formal demand before bringing
Mit ie unnecessary. The record here shows that such a demand woulda
ave been unavailing.
P a In the third place, the defondants contend that the
ot is arcsinst the evidence and that the rulings ef the court
an the instructions of the court with reepest to the evidence are
roneous, The written lease between plaintiff and defendants ree
that the premises were onteared ypon in geod repair, except as
in otherwire specified’, By another provision of the lease it
a stipuiated that the lessee would pay for any a4 all revaire
st should be necessary to put the premises in the mame condition
men the leases entered therein, reasonable wear axceptad.
Attached to the lease was a rider whieh epeeifically
certain resnects in which the premises were not in good
&
a
5 a — ee
PS ee ee, ee ae ee eee Loe
TR OO (Sn Tee RRS US Ree oP
TASS ad os A ai bi }
a ae i ‘s hy
tw taeteredooal wt _eTovewost Hols assay pit, i aaestoans s
setnsond nl % agnico8 vids te ents fans edapbanten te
agto tanh antec Cshcain ons “nog ( molope ca 1 at te a
saan ak nalioa an aBy ho hate 00 ak AE ae mares aS .
debs a as Wes) ee
Road ciel sig kate she omen &
. whe a stuf * oun ate x
pk a aogn oneo, abe » | rest + fat to mate «
4 UN
Vi
on et re one ho ) notden ai a wessresanay » at ee
$4 ee .nst rv “sauaon oy saxnandl al vwetentat mR
dans vat now 22 it ae, EEO tema pon. tba
ot ween ites At me fn. fae 8 :
"hen
A ial Hen
a a) deals tym tm nitive! santas ess ,won tg rate, ot, Salle
ae hiwitke (ythaaqer doow at noes! Bale” ‘out aalLe la ca
#1 oobi t ode Yo node lvoe ‘tons ond veo ‘etéses titwndre &
pelea neta cid frie cab the a wah
seeg at an eter neeee ae
Pah
g *
Wage aay ce :
A a ds ii be di eatcan denny NEN
p and recited that the plaintiff leaeor would make the necene
repairs in these respects. There were something like twanty=
ve different things which tae lesser agreed to de in order to put
| prenises in preper comdition. fhe lease did not fim the time
within which theme repaire should be uade, Dut ploeintiir, we
think, eorrestiy argues that the law would preswae that thie work
vor: 4 be done within « reasonable time.
The testimeny of the plaintiff tended to show that the
pla tiff aid wroceed te make these chances, and that it teok him
abe + three monthe to complete them. The term of the Lease began
: June 1, 1919, and defendants sntered inte vossession on that
t . The lease wae executed under date of way 14, 1919, prier
Oo. the defendants complain that the court refueed te admit
lence offered by them tending to show the actual condition of
he building, either on tne date of the lease or upon the date on
h the agtual entry was made, but on the contrary limited the-
o@ to the condition in which the buliding was after the ree
ae agreed had been made by the plaintifyr.
In this situation, the jury was entitled te the facts,
} t would have been manifeatly unfair to have permitted evidence to
+ given to the jury as te the actusl condition of the premises at
¢ tine the lease was made ond at the time defendanta entered,
also permitting evidence to be offered by the plaintiff
Rding to show that he had made these repairs ae agread, and both
ae were entitled, if they requests” the same, te inetrnetions te
ad as to the law appliieable. The deforidants say that the
Ais confusing and contradictory with reference te the ade
; ef evidence upon this point, but they 4o not point out te
. the specific rulings upon the evidence of whieh complaint ie
°. Manifestly, we cannot search the record to discover error
dl | they do not point out,
ee the defendante also contend that the statement that
ates wit gatsitenoe one omnct “satoo gees oe lt at vehews
duq a. Rebte ad oh od booage xoanes call , ha pete yaks
mts Po AY tou bib nae f ot Hols thaoe Pants, “ate
nape penn oe te ened ont swt, sb kena, ot hae m vote
Saas A, nnlawege on etnk beresay sdanboe top. hee. ‘
notre 9 RhOk ahh wee te ovah ashen taduoaxs nen
_ Sbmihp OF bone tare, Pipe alt tad fle Leno panel ere ca
4 ; fF FA ABER mit
te ape theseg houses eae vost Cy gauhave aan ats ve pete 99 4
Sh nehe Fee eA 1 De
io ote itt nog to oaoet ost 1e etah oad oo roittte : pabbih
Ban
oat poabats qiertioo nit mo fed shea war “quam tanton ou
“so ont mite aaw gabnciod ous foltw at ‘aot? 1bavp bond ot
-Miktate tq nds of obex wood pa ine
i Wate Reg 1% Bs
Lateey wy 02 “he89 1 a0 aew weet, ous moitavdie a kas be
Rie easy
at penmehive bots harog oved of the'lan cidant haan mood 0 even
Pe ti Lay ay A)
Sa toa tawtg odd, te Hots ih soo inupes ait oF os wml ont ee i
we dome dtes ataphas'teb ont? nett ta bas ban nae nanos ay
Oa San anne
_, Pebtabete eit “et hers the ad of aemohtve aetteteane
dt os fats cheer ns ma ata ges neat abpa fast we gant nee
af anofdourtnat oF ,2nme ost Soduanper weds * nb pny se
ant "tas tae atnat.ew top ont “pddeo dings wal ot at
i 10 ik VO 8
aha ods od goKere Tot oan viototnetiaes be pease
BR YARN ths : ee Ben Ts ;
of due inden Fon oh vens tun sfisdoa whit mec ‘wp dam £
it SRI GF "| eB is arate
ad take fqaoe sto bete te sonobive ‘quis Eagy ol :
oh ha cs Xe
xowne orooe tb ot broom pon sawaen fonnae pt vi
Ae ei i ie Ph Seay nu te #9
. A vei
Ruin See RI swe ee ake CH oe nay
the premiees wera received in soot vragatr in o relative term; that
a Structure whieh wan intended to be weet as a alaugiterheuse or
" foundry might be considered te be in @ geod state of raenatr,
Se
when, fm the same eondition, 14 would not be senoidercd in a aon
Dbition of geod repair for use as a dwelling house. They aleo aay
that the lease musi be conatrued with reference te the use which
as te be sade of the demised premises, aarely, that of am art
| “ptuato, and they say that the physical condition of art studies
S well known -and weld expressed by the colloquial term “Bohemian. *
» thererors, the stipulation wae made that the preaises were
ered — in good repair, 1t must be construed as meaning in
yd repair in view of the use that was to ba made of the some,
i@iy, that of am art estudio. The defeniantea eay that in apecliye
the particulara in whieh plaintiff claimed the prenices ought
‘ be restored and with reference to whieh they were not reatered,
. ntif? ascused that the premises must anawer te the desePiption
f ‘geod revair ae thet term would be properly applicable to « fine
t-class residence, and they point out that the plaintiff sought
gharge the defendents vith the coat af eomplete new clumbing,
mith Polis.ing the fleors, with replasenent ef sink, pipes, het
* 7 heating apparatus, art glass, bent plate glass, moulding, ete.
| All of tiie was a proper matter for the coneideration
, the Jury. It is significant that whereas the testimony tended
0 Bhow that the plaintiff nad expended the ews of £3342.48 in ree
ai upon the premiura, the verdict of the jury allowed plaintiff
only to the extent of $900,
The defendants, in the next slace, contend that the
ee confused and commingled certain itame as te the eendition
he premises and sest ef repairing the same, and that proof of
* cont of certain items was allowed in evidence when anid items
We not chargeable to the defendants, Among such items are named
“tad soot 1 ovitetex. # at digs panty al ‘alias dasa npeynnn
A 0 eaomantdyeade . a pean od we pobantnd ager Sie Stier srotourte. 4
a op ehee to otarg. Keon # 42 oF of bompblenes ad ate ertnae
~non 2, 7 hoxpdienoe ad fon bigow tt ymoltibacd pane att, a2 yma
We ole weet .sevod yalifewh s me pay 0%, ghager hog, Xe modi
Ho ldw vey a3 of aosoreiet didw bewvatenen od daum qnget ont Sag
ote me Te huale ,eionpn, .epedniorg beelaeh ext) ko gham od of ‘
aMheie ete ‘te mons itave lapieycg ead teddy ws xen, beta ae
© a Brat” wnat Labupoktog ent vd hovanrqe Sfow bas wen i kLow
etew tie Leos ese tact Shai sal okdelughon Lod coroneteds a
mi aateson ge bourtanpe od geum $2 ,atages hoop at as
oie ome Ye, shes ‘o¢ oF Sar test? eeu er tH waar, me ‘te
wrtivoen, ws tact we haghae teh 98 ,othyte #3e xe Xo. eat ea
tiguo. aoe tees g, a homeo Thitatele dotdw al duo teelizag oat aa f
Nerernos, Sout: oxo w, yas tobrte, oe, porene ten, the han: herpiaen sd 9
aoliel¥oush, esht ot tewene doom, goehunse @ one tent. pocuned., Pktaty i
salt a oF eLGnetiqgn ylzogerg od biuge med Jedd em win mt ae: 7)
tiguoe Tratate ly wee tad tue toton wale Loe ,eopentegs ivaton
gbabdans ts, von ste Lqmve te $805. eat At Se atnehasted odd v1 y
My ton yregtq .take te dupnepe gon dg dw ,wsondt oat pubeattes att
08s get hlyom HOBLS atate taad a bam ly ote audewqqe. Reh oi i) ads
Roliatmdsieuce ef rot ad tan mgote * aow whit te om we Peis
bobuns enoals and out neote de dant dnsettinate ae at yet ball.
~o7 mh ae. Shes ‘So sure oid dodanqae beat Tabet oat ge Us Lek '
vitsulety beweL tn wh only te dotbury out yhod Laer, ont: 7. i
, 0908, ‘Io gnotxy ost oF, yene a aah
ene taut aww sito soa xen eng at aneganent, tA te annad
omees ten ait seientve mie sevette ‘oar bya
moi tests fin canoes aso wat | fl 4
“met
Bat
oP ta)
i
= a
Sema er Hn.
=r
” y
@hanging the toilet bowl from one Fluor to another, placing - new
vows for the one taken out, rubbing ond polishing the floors, but
as plaintiff pointe out, the record shows that this evidened was
stricken out by the court and thet the attorney for vlaintiff, in
the presence of the jury, Jieclaimed emy intention te ask for ree
covery for those items,
It is next centen4ted that the court erred in the giving
ef instructions »hion departed from the theory of plaintiff's ease
@8 averred in the declaration, Plaintiff says that eseh count of
the Aeoloration slinged that the defendants "fsdiled and refused te
pay for repvaire that were necessary te out such premiaes in such
pendi tien ae they were miered upon, reasonable wear exeepted, *
but that the court gave imatructiona to the jury voor the hypothesis
that the defendants were obligated to make repaire euch as would
“place said promises in the tame condition as they were placed
by Plaintiff in a reasonable time after defendants entered upon the
sane, reasonable wear exeepted,” and that the jury were directed
that they might find domages for plaintiff for the same necessarily
expended "{n and about placing the said premises in the sums eondi-
“tion in whieh they were placed by plaintir! within a reanonable time
see
7
after defendants entered upon the same, reasonable wear expepted. ”
The aefendante say thet these instructions were a de«
from the declaration, anid the nivtins of tham constituted
ereible error within the rule laid down im Himred Coal Go. vy.
an, 114 Tll. App. 668; MoCabe vy. A. T. & 8, F. fy, Go., 154
+ App. 380, and Hedger v. Chicago City Ry, Co., 207 Ill, Apo. 26.
The lease in question was dated May 13, 191%, and the
ndants entered upon the premises on June 1, 1919. It was, of
purse, necessary for the court in its instructions to construe
a ® written contract, and this required that the rider and the
e 8: te which it was attached should be construed together for
pean a snide y tity antes idiementss ae windheodund foLiod ast gatge
aed satel? od? gudiohheg.hae yabi cen tre nedat, ome, wad. 0% ae
naw aoapdtve akte tau? sworn drogen way ytwe, cntee Tenia
ek ,Viitatade. os ysttetia ost tad? pte twee of8 yd ane 3
ot A8t vee of aghiaetas yaw homtiatoe lh , yum, odd, to. ssngneng, 8
! LAN plane os ote, ©8909 ROL 98
ativig gis at hetie sues edt, sac? bobmesnne, Pee Ah oe) ol we om
sane a Kedsaia ly to epee ond. Meth hots saps, Ap dite, wee was sh,
Lo tens daae fast, ayes, Thad ede S%,. sodden feet aed. adheneien,
ot beavten ban tothe’? wtambsrs aoe axe dansist! heoetie. wotewrntent
Sewe 22 genie vy dose tro.e?) etanetogm emow vadt atone | mot,
© Ged ere ae Aka ce, Som epsT herngee ome, TOs | Oe, maks & ‘
slunaioqed gt sen em mit: of axehlogsaed, oveag smo wd te i
| Pheew ge dove axcdands etom ef hesoglide exon stern seh MR ‘
“feoale weer yoor an moletoges,omee df od oon dawng,
ens oye boTWlAe RtoMhor tet cele ome eideacsgns waa xt Mes bg
Petooth) atew worl o@ tad? dam. *, hatqnene, anew, otéannaan, 49
qilcocaoper omne ale aot This ade Le, LOT gopameb, dah’? Sia a sce
«lhwoe emure ost m2 eomdaw re Dhow odd pulps he derede: a ae
oni? addenmacet a akiriw Uiddmate yd Ana te oxow vod, dohicat
* Sevens 1a OL eeHO% 4 MGR HO come heresies af cmbiee tad
oth 2 eter gaoltes vide mh) anand @octt yoo atoeheo tab oo? ie
bedat hoa mes mot te qobwige ext Rom nettaretoed ous wert,
eat dane bent sb awely hae afin ont) cibeithe wort: nie. ie
or ls a oes, BOR wetthe oft PRL af
eH baw. 8 00
om haw ,OURe Oh Yak beta aaw Bole Rop, lh oogol eat —
te sa th OO ahem, ae gen loony male, siege: Santon
9 aireremon sao livorasent ats) ad dewon, OA: BORIC HERO,
Mele at rh ka aah snes bercdaeen: whale. ban, afomrsacn, ane2 aw a
teh endeRes Rawmernawe, ad, dkaroe: deconsee naw $i siodsn 09, 08
“the purpose of ascertaining the intention of the parties. Meanie
| festry, it could not have bean the intention of the narties that
| ‘ the defendants should be required, at the expiration of the Lease,
| to take out the repaire which plaintifr, by the terme of the
anes, had been require’ to put in. Such » construction of the
Writings woul’ have been ridiculous. The instruction may not have
haan entirely accurate, in that it faile te cever the liability
: ebligstion ucen the defendants to repair snd restore such items
a8 may hove become defective vetweer Tune 1, 1919, and the date
won which plaintiff completed the agreed repairs, but in this
| Respect the inatruction was favorable to the defendants rather tha
aie gee =
te tha plaintiff, They have no reason te eomplaia.
4 The eases cited are exsily distinguishable, but te
- atecues them would extend thie opinion unduly aed even » eanual
i | examination Siseloses Mp the cases are not similar.
Defendants further sentend that the remarke an4 eon
duet of the trial Judge in the course of the trial were improper to
‘Ouch « degree ae to constitate reversible error. The record aise
b Gounwe@] in the case, ae where the court said:
"You near what I eaid, 4ian't you?
ir, King: Yer.
The Court: How, keep quiet,
Mr, Eingt All right. Bxception.
The Court: Don't be se 4isputatious,*
6 again, where the court said to counsel, "You may ask o lot of
polish guestions,* or again, "Don't harangue the court,* er
» “Don't talk so much,” or again, “He is going his own weary
.""or sgain, "Don't argue with me, ** Don't waste any more
” or again, “I submit that you will keep your seat ond keep
et,” or agein, “If I let you start talking, you'll never finish."
We do not find anything in the record which would
the court in making remarks of this kind, but it must be
SS
od seme th tut hake wkte TS ebeaawe |
akoat elisa alt Lo molvandnd A? yaitoieteiine to bn s !
Aon wotiray ost to modsaneat edt wend wrest ton wien #2 ‘ett ve"
,oaend one To nabies lane ott ge ,betkepen ed’ Styria! Waeb ue teh bel
ult To meee d male od VIRGIN Ly sock Wetagot’ oild Rib oa
ett Te setooorteso w Moy® th tee ot, Oe kupo avod BEN | oeand
ovat om Yam toligettent off Jevotyothiu angi ovad hiwow egal! -
Ut Mitel’ ad caves pf aL iot Of add af otetinen ekouttne 6
waged dopa etacades hee sisaet of ataahie ten OS) tipo winnie
ptad ond tas , Aol Uh atwh ndettod avbeso ten’ nahiesoli ieee
- ghee ok ted yatisewr Meengs est Sete qmew’ Ved drene Mebane’
anid totter otnaion' kok ont wt atdovevet seromerzontienl oa¥ sheqeee
Hhelgnen of soacer ou eved Yast” “runanacer se st
Ob tak paddadabentttn Dy yhinan ote BOTS aeaeo ‘OAT © ii etd
Lakes» aave baa hsbme wees vis antes Bvt ant ad
: steiiale toe ety seane pst Qt eosetow th ‘maktacabim
attoo baw auxeust edt sede hageneo -cedray't edaebde ted | setvady te
of tegetamt acer Cetnt oa? Yo wetnon ele BD ‘Wete La bie waite
MER fneons oth torte o MW hevever efus Hates of na Hoty 4
axtos Pavegtth punk ai fst duos veld Yat mateote ese ty ‘aint is Wi
phtew fuco ott okede as oem ad upton
, - twoy Shab ES Bie i ‘Yoity ‘tal wage” 0
Leki inser ta rv a
Hudetidh RS jwiad He Doves ER na wd
ete e ae sgnat OY" | Lewtnes oo Baie cima “With” web bi"
“no Monies antt -Mnantad ont wteyh co *,kanttnoup ste BtoeY
Utaewl ie ald) gitteg ed. eh abagead * yoiaade ansey ibe ‘ ‘as ae
eee yt eaew etme ee on ctw bite 2 ae a hhege. worm
Te Te ee a piel
* do kat Rowen LA wou! pgmaaied (aeade wey EOL ORLY jallga a |
Akwow sly kite budoet sageahehnete IT se 1 on
ental in fairness that rexarkre sf this sert sae te have bean «ta
“tributed among course] in the esee and witnesses with impartiality.
The court etated of a wltmess for the pluimtiff, “He cught te be
“pent te jail," and rewarked to counsel, “It is yeur business te
Veetns witnesses here that con amewer the questions you whan them
$0, not te impose an awfully deft, willful wan upon us. I think
ie must have been a wliness before because be runs aray from
everything."
is Hot attempting to condone thig language (for courts
4 be resmeetiyl and Alenified), we are disvesed to hold that
.
the imnartiality tith whieh these cenevree were distributed pre-
vented infury te the eause of the 4efendant. We therefore hela
4 & the errer in thin reepeet was not reversible,
ae Tt ie next contended thet the court erred in refusing
t Feceive evidence offered by defendants tending te shew that dee
fe fante had been damaged in conseguenes of plaintiff's failure te
\ & covenant in the lease with revorence to the repair of the
f. Defendants eay that, althougs ne claim of seteoff was filed,
y hey had 2 right to recoup, and cite Bebooek vy. Trice, 18 Til. 420;
gs Preble, 90 Til. 381; Keating v. Springer, 146 Ili. 482;
Stafford, 284 111, 610,.
It is true that recoupment may be hed by a tenant when
in am action for rent under a plea of the general ioeue. De«
. te here, however, did aot plead the general issue, but not
: dity. No eases are eited holding that in an action on the case
such a plea a defendant may sive evidence tending te show a
of recoupment.
: A® already snid, the record in this case, considering
: amount involved, ls volumincus. The case was trie@ under a
on, where (we do not doubt as defendants contend) there
s S& misjoinder of counta, and the task of reviewing the record
adiwow ai ieee hdaile Boh shape ss s enieenenicils dole ial
éadd blot at heeoqedt ona.ow ,(holilagih tas tektoenneg od,
mong bedideatath extow senvenve. mend? de taw Atbe ett fe ddmmame
biod au@tetedt AF... Iaehae tad, oat De aneomiod oti wrath %
mn Pid teres dem wow teagoey ehde mby torre tas ef
gatentes af het dees emi. pate bebsetaoe, saec gt 9k. wee” - eens sie
cob fad} wore, oF gatbued? edembarte® yd bene iio, apaebire, pyleoey. gi
of.emllat a Aliaielg In sesenpssasg, at beoyameh aged ad. ate
exit Ye) uiamet oid ob gonote bet Clie enend ald 2 Smamerep,
oll t naw Pieetes, to siake om: somettio; Hons, THe. wena
Ls sot tons bette ons. gQreern oF MaRS A:
;i@s fil OS ,ganmings .e amigo: (486 57 O8 .ghdos
waste taoned « yd hat od yam emwnqu90o saat ‘pred 2a oie ‘i
«et ,agee8 Jere amy, ost! Ye, cota. a, wahoo, teers fer Be ak he
fan tud ,eneed Laremy ond Soodg Jon b&b .torewod ,ateM, apanhow
onas oc pO Amides an ud tacit gakbites, hedte exe espn ott ike
p wots of arlhord eonoblee @eks, yew trehse tod © 29 be ad
a ee ee a a ra tained: Ms
aulmoblucsy wane yw Bet rr fetoood wi pes 6 “al
oe eben Det saw oRAe MT semmmbmmetow wb apenas j
erott (Rewiaas atoms ror"heh oer Sdewh dont oh ww) wail ys t
“bequet nut onkeotyet Xo md mae Riayat He |
Na
a3
s (as undoubtedly thet of trying the cave under the pleadiags wae)
x By 4iffiewlt. We think evbetantial Justice hee been done,
! ot dthetaiding there may be some arror in the reeord. Defendants
| ‘a mot dewur to the declaration, se they sight have dona. They
| mot ask the court to require the plaintiff to eleet upon whieh
he would proceed, a motion whieh, if made, we supvore would
ave been granted, Ye do not think the parties should be put to
. expanee of another trial, and in view ef the faet that, by a
jewhat devious path, substantial Justice hee resulted, the
nt is affirmed,
AVFIRUED,
(Rel nad a0 median’ Mnkiaveadya daidd oF at hen CUR °
Stusbaaled toga jet? tk vert anon od yam oxst aadhantets
oak shacd avast figte yond me, aottatntewh old Of awh tan
Hotiy wom foots us Viidarale esd orivprr of tumoe edd mm te
of twq od bivosa eetitng out Ambit ton oh oF whetnany goed,
fm ys ptadd fost edt Yo wely at bar , feted waltone Yay .
i a PRA Got Receipt, ede Rae ee t i" 8
fav gate eh wl yatta aae eo ty eR eY cata,
RIOD Qe leng : saa soliadtios
DH Se ae Ng SRA RG RR Ee As ERE TA 5, I Rate Ue ae
DR RT RS ARR a BERN) NRE HR Rae es aa AE A a Hayat hovel apo h
wo R \ : % i rn 4, . his ij ¥ gh ¥ Pe | af oy 4 " Abilify)
ES MRS LAR Ce LON Oe WR CM a a RE Meee SC Sa A Lr NRE Bae URES
fy }-.¢h PU
Be a G CAD We Sres y
t ‘
) a En
i Whi
A ER, ER, saute
ee iy A as wet Obes ew amReE Oi pinceveeiiania gy 9) Nae ay weit. wa, wv eis
doth. wade bo di tee, eal Te, Ee ei RR a NR RR a ee
‘
SRA) RENE IMIR NAN MI RN ORES) RN ayy B ay th: tk ‘Rosset ne Pp Ta, arenes a
a cls Bk acca dan RR. le Rath ie See NAN RN | ip gia wae Lats oh”
A SRR AEE RAE RES WOT | hats Tan re way barton t (i
re an hile sta ‘wath with lbscaii
BSS eR SME CH th 1
Daiamndant eae RN RA i akan RES oe nie: jietooaso ‘tay
(323 - 31455
4
THE FIEXFLUME CORPORATION, )
@ corporation, ) APPEAL PROM MUwTCT Par,
Appellee, }
} COURT OF GHICAGO.
j Ve
| JOSEPH WURT BURG, DA, S
ie Appellant. fe “SH ol he
Im an action on « written contract and upon trial by
awry there was a verdict for plaintiff in the sum of $909.37,
“98 which the court, overruling motions for a new trisl and in
s entered judgment.
The statement ef cinim alleges that on or before
mber 10, 1925, the plainticf entered inte a contract with
th defendant te menufacture and deliver te the defendant three
etric signs at « price ef $1013. The contract is set up
: 2 eee yerka and specifically states that the price docs not
nelud: electrical connection frem the sign to the building
further states that the “price deez include securing permit ;"
"price does include paying city inspection fee," and that
p vate permits will not be guranteed."
4 The statement of claim further averred that plaintifs
tured the signe; that on or about April 9, 1923, plaintirr
the same to the defendant; that it did ali thet it was
juired to do under the terme of the contract; that defendant
1 @ om said account the cum of $200; that pleimtirf was entitled
}imterest on the balance because of unreasonable and vexatious
“tad ; 3 that by agreement with the defendant it chemged a werd in
al at the additional ané agreed ressonable price of $14.16,
Pe
|
Pas: WN
tae .
f A
}
§
}
}
a sas toTMma HOE LABS
. omar a 7au03 :
“989 et Kesh
> f+ a Be
: Rae gs
eta Ser “o MOIMETO ane axaavnzoa SEuROROY xOETTT
“ Sunes Oe po Pm ae wodsiee a 0. a wien ae rabrel
soma Me 7 ba
ousted =e 8o ar sopthe, mtake. 2 ypc get oat ta pa
adiw destéace @ 82K hozeias trésatelg outs onset ot on
semis igabasteb esd of wovilos be ommgon tunes oe. Sime! ne
qs $as sk Seazizee edt 8 6-EL0L% te eaing 8 ta. mgs :
gem aces asiza asld desig assase aiieolsinens, paella i
gRlolisd eid of magia odd sert aoilseanies, Lsotutooke
“jaimtog gaiswese obylowt Pert sotaq" ed? soni aetata,, i
dedi daa ", 20% noltasqant yle saiyeq ehutont soo sobs” &
vitinintg jak? bexieva rods’ abais te dasuntade ont. .
VUteskniq ~EROL .@ Lixqs suds xo wo dndd gampha ods | wie 8
aew 32 dora ike 2d 32 tant daembested add 09 emsa ons -
: “dankasted fod qdootanes ad? To eaxed ond tobe ob 09, bes: et
heisiins asw ‘witentale sess Ried ze aire ods amsqooe Atee 2
auehiazov Date chdencecomas to savsood coneiad eas a ‘
si bxewr 2 sopensio et sashaotsb edd 8 bw saomeras WS talt
g82.8L3 to ootug eldencast1 heorgs ban fates isbe ome
aie w &:
a
eal
and that there was a total amount due of as4 with interest,
fex which it repeatedly demanded payment, which wos refuasd.
The defendent filed an affidavit of merite, in which
he sdmitted the manufacture anc celivery of the signs, admitted
thet he had peid the sum of $200, and admitted that he owed te
ime plaintiff « met sum of $249 for twe of the signe which he
averred he was ready and willimg te pay; that the third sign
Was never delivered to the defandent in accordance with the
terms and provisiens of the contract, ami that he was therefere
absolved from payment or any liability.
| By amendment to his affidavit of merits, the defendant
alleged that he sigmed the agreement set out in plaintiff's
, ent ef claim, relying on representations of the pleintifrr
th & plaintiff hsd secured the consent of the oeners of the
> Upon which the sign waa to be erected; eheress, the
fi a wee that the owners, whe woe the agents ef the building,
‘aad not consented to the erection of the sign, and on the contrary
. “adviees the plaintiff they would net permit the erection of said
‘sign on the buildings that defendant would not have executed
agreement tut for these representations of the plaintiff.
The first contention of the defendant is that pleintiff
suec on s eritten contract alleging complete performance
mot recover without proving such fact; that the third sign
Bot conmected as agreed, snd thet ft was therefore the duty
; the court, at the conclusion of all of plaintiff's evidence,
, Girect a verdict for the defendant. Om what theery the court
have granted the defendant's motion for a verdict in its
when the plesdings admitted money to be due upon the con~-
Taq » We are not imformed. “e have no dewbt it would have been
te grumt the motion.
tana
7 We te
stsetesul dix £868 te sain sunean Ensed o saw sseds geld
éheuwvtet anew dgide ,émemesq Sebmemed ~betaeqer: $4 deity @
dels ai ,edtsex Ye éhvebtiis me ROLES sushae te ont AB
Sestiaba ,emgis eff te erecifed bax oxustostirase | 24 ei :
es seve af ged? hedttabe bus ,00S$ Ye mes oxi bias bed of |
en deity Bags eas te er? se% 832% to ave Jom, @ Ths z
sale betty ear Sand Vion, 00 aniston oon Ok .
. 8 Adlw eemeisocer mh inebesteb ef9 of bexsyhiv’ coven «
sassatth.sore Attest, ws seucetens ote Sa
“ weeRttdsit ome to atau lS? boven
fanbasts§ edt .adisem to sivebivie ald 02 taeaben re
a*tiitahaig of ine gen taomwnge oat bongld dd Halts bogett
VUiaielg ans to emeltsseseecaex we gnigies walsta to
odd te avteve isi 30 drscnod tt sisadée ‘bid Yikimtate 4
_ tid dsedede gSedene0 3¢ 02 caw aute ond dolde meqw vi ere
sBMESL tied wd To BSadgo Sud Stow ade .ezomws ond Sad iin
yuerises od? no bas .agts eds to Roldsoxs off of —
ates te metéesre edd tiexsg dem Alwew yeds V2 area Ba
Sedworcs swad Sou bivow SusBasteb tad? fental
gvitsatste ade to ametscdmesetyex ensas tox Sod dnsmsesgs
Wifmlalg ints vt dtaiaeted ade Yo Heldmedney ‘intel
somaretieg steLgues pulgeile tesueass meagixw 2 a ‘me ‘sat a
wie BrEde od? add pyost dowd gulverg dvedsix sevess: |
wan ad? ‘exetesedd tow 3i tests bas stooge te edo
rd ;
x
, sarees:
“Heo pee
ik Boheme area
seed ovat hitvow 38 sdees om oved ok vas Nash
ys ee k eae 4 a Lew had eee aaa 2 ae aahal
ay | smoisea: sid smuty oF
Sha ost Lae es Ses
There was a conflict im the evidence as te whether
the plaintiff represented that he had secured the consent of
| the owners of the building to attach the signs The verdict
ef the jury upon that issue of fact ia in favor of the pisin-
tiff. te are not disposed to disagree with the jury. ‘%e de
‘ot think the written contract can be construed as requiring
“the plaintirf te obtain the consent ef the landlord. Ye think
that would be a very umreasonable conetruction of the contrast.
it wae clearly, in our opinion, ¢efendent’s duty to obtain this
permicsion from the landlerd, and, since the evicence indicates
“that pleintiff was: ready and willing to connect the sign and
Reve Gone so had he not been prevented by plaintiff's
ad, it must be held that he substantially complied with
provisions of the contrect. Defendant, not plaimtiff, was
Gefault, and defendant cancet use his oem default as a defense.
It is next urged by the defendant tht the court erred
i permitting the office wamager of the plaintiff cerporation te
ae te instructions given by him to am agent of the plain-
in regard to securing permite for the ervetien of signe:
evicenee perhaps should haye been excluded, but as the
testified to, in our opinion, gave the proper sonatruction
; the contract, which waa at amy rate for the court, we think
Whe error, if ony, wis narmless.
The defendant next contends that there was no conflict
; 2 the evidence which justified submitting to the jury the question
ff whether there hed been a full performance of the contract
@B plaintiff's part, and for thst reason he also insists that an
a 1 to find for the defendant should have been given.
We agree thst the evidence upon material pointe is not
‘geitesr: edf qrut cfd 629 nabkidindoe belt sent, de tdw semeiive oad |
sevidade ae sn oomphive odd ah JobLines, Ponape
30 dmwenes sul? boxwosn had of $nui9 bedmoaonges stilelg on
detbuev aff sania eile doatée of smbbited odd Yo wzeende
awinty at te sews? wt uf test te smal omens ;
ob oF > stem} sd dete pexgendh 0d Deaogathton. ous OF - 0 Vill
Beirigges aa beexzenes a8 ste geacsnos nodsirw nts sous 2
inkéé o% sheoktesd eft Xe dmcamen etd mlaide of Yebds
sfaomines sd? ty eeigeutiases sidanseatsan yrer @ od toma
ait? ateide ef “ind atisinbasteh gneiaiqo swe sh atisap in ae a ;
acventhat eamehive ad? conta .hun ,breLomel odd most te .
aunt stake odd domamen of galifiw aus peace Mutts é
a"itiisiale yd dedsovesg ased fon a hed om amok med
sithe auiiques <Liahimesedue ed tastd. Died oc suum 38
ace s¥tisnbatg fom .iaeiwteted .foardaen: esd te anvietveny od
senvtoh o es Siuctsh eee att oan Sonags tasks ted haw haste | “
betzs ¢uwes end? fuft daskae'od alt yd bogus dxem ek aE wee
. ee ‘abicsitigtvo Vikiniels: of2 To tegen sok ite aie waliiiereg m
waisty odf to Snopes tic of mic Ye movtg emoldoncsomh ef ae yhieud
satigis te weitests ad? tel «fimise guksvoee et Steges af 7 i
dd ac tnd (bobuiexe méed send Biveds aqadred somesive |
selienitenes ts¢e7q eds svay .Holaiqe wo mi .of holtidesd
SRIidd oF eseego Ss <6% odes ume ds sow Meda ,Seotines oo
sseolasod dow", ue Th, |
#oifiass on Rew ood? dads chmedaeo txot taabmetsh ett” foe 4 q
‘gaasinge edt te oomasiottes ‘List o meee’ bad orede <eapaae |
as ded? e¢oleet cala of measor dome te? heey dteg” !
sovks goed eves bLvede deohas tab edd x02 bat? eS. n
gor al sinteg intiotioningy emebete saeciatloomeet SY 9!
28 be ah 3 det, we ~
ee ise eee, Se ee
‘dict, but think uncer the undicputed evidence the
f was entitled to recover.
The judgment is therefore affirmed,
oh
Ye Be Jey and Johnston, J., coneur.
pie) | ees in
ee abate enedatae aw
iachnndsints semen Ts male eect panel ig
Bee Bake Bit oe er: ae petite dee
ee eeigotasace Tab eelaig ee
Be Seog me OF we Ye aowky &
be metvects ole tet! atteeteny 2
Beth WA” Pend eae Raed eat siete
heise
watsdane ae” “otet ee ae psa
we
$66 - 31498
JON Z. BISSKE,
Appellant,
APPEAL FYROM SUPERIGR COUR?
vs.
ei: OF SOOK COUNTY, :
om J, BARMAN, On i
Appellee, PA Sf | Ly
,
te
i ER, JUSTICE MATCHETT DELIVERED THR OPINION OF THE COURT,
ih Taie is an appeal by the plaintiff belew from a fudge
‘uont in-favor of the @efendant, entered upon the verdict of the
dur, returned in response to a direction so to do by the court.
ua The sentrolling question is whether the court erred in
Sting thie verdict.
The declaration averred that on December 13, 1923, deo
nt drove hie automobile se negligently im a northerly diree-
wpen a public highway known as the Vaukegan Read, that it |
plaintiff while plaintiff was im the exercise of due care.
Other counts charged newligence in failing to sound a
or give other warning, in operating the eutomobile at an we
a mable epeed, contrary to the statute, and in failing to sarry
The defendant filed a ples of not guilty and a special
A An instruction was given at the close of sisintiff'tsa evi-
nes. The sole question is whether plaintiff wae guilty of such
Mtr ibutory negligence as would bar a recovery. It is, of eourse,
, that in this state a plaintiff must allege and offer
tending to prove due care for his own safety, anc, failing
the evidence tends to show that at the time of the
the plaintiff was o night watchman for one Donahue, whe had
a ) for laying water pipes, called main pipes, in Biles,
=
A att fo VERS GIRS RITES aa ROAR LENT SUA
i id J . , Wey wn
; 4 ; il
Ni, is 4
BNR a Be as VaR Sea. ROU
ie “EAM owner womt ramtdh iti
RY “y Xx000 v0 STS MDa: ny Ae “a lO, | nw? ie sng
i so | HA SLA ot !
‘oe CO ar fis io weetto a
: we A @ ua +
:
nari tg SMe gal i ue da Sie: Ayn ve i, a
| eTHOD ERT. TO aorKE4O eet anna tame TTT ap rrevt
: abet a wath weind Vittntale add ed daogen ma. 0k o kat
| act Yo gaibxov oe aogst henesae ,enehue'teh odd te cova't: ais
meg ost xd Ob of cf moltoetl® @ of eamegnes at beauties,
‘ ak bores sesra ot aeildede at amlioony palifotsace ot
fos iuew akse |
ooh 88S Bk xediasonit rie taal beereyn nokteraioed <<
agacih ehtedson a al cL ney kyon oe eLideootua at avorh |
: ot gads bnoll Mage de odd as ang 2h spermatid ahiduy. .
setae ob ke om Lorene ‘edd et aw Mibsatete ef hebw: vibrataca
a bawow ot paliter ak sonen tigen begtess ataves todto hy irs i
ait th #8 elidonotie oid aithterere at aaherew odio ovte to 2
writes of nabttat fit bax aiutnse estd ad ruatino beeen
tuted ‘ond vd bartueen ae state wong te warkey i
» taRomem a hese Yeti toa te ne ty e beth ‘trpbae ted out cia
| otwe a Ttitahete te oanko wold da ies ty naw ine Bato i ; a % ue
down Yo vi flug saw vinealate not oxi at molarity fon ont 98 om ,
enn: ee ddan
outdo Te ~ hd
baat ote soul cod eg “t0"t “amie ‘alata 8
(etre ak swoate atom ‘bette ae '
=
a
T1tinets; that these pipes were being laid in the Yaukegan Road, and
that it was plaintiff's duty to take cars sf the lights and parts ef
the machines no that nobody weuld rum inte the machines or inte the
dugout made for the pipes.
y The excavation there was about five biecks north ef
the place where the accident happoned and on the east side of the
Woukecan Sond, which at that point ran nerth and south, with a
iat curve toward the point of the exeavation. It was the duty of
the plaintiff to look after the road light st the exeavation, witch
ier
7 about 260 féet long, and plaintiff had placed Lights there ebdout
feet apart. The excavation, om which the lights rere piseed
} the west side of the read, wae about a foot ana « half frem the
concrete,
Plaintiff set the Lights and then went gout sleng the
a) lh Road, as he says, to see hor the lighte were set, and he
. South far enough wo that he could mee that the automobile
. sould gee the lights in case they happened to hit the
B, and see thet there would be danger before thew,
Atter going far enough south for this purpsese, he
around te go baek neorta, aid juet aa he turned to walk north
he looked around but didn't see anything coming, so he
ped out a little further to see if he gould see wore than one.
gh } on the curve, and there he was hit.
He says that ans he turned around to elise up the lights
on the enst side of the road, for the reason that he wished
r & view of the north-bound automebile drivers to see that
r could: out the curve ahesd4 te the nerth and eee the lights there;
he went to the east olde of the read te get the viewnoint of
| vers, This point of the read was near to the residence of «
he which was situated on the weet side of the read, Plain-
Shout ten eteps after he turned around « ten or fifteen
| he says - when he was hit. He liao asinine of the sutomobile
Sel a a
ke a ae
Be Ree
aeqte ais sot oben 190%
xe ¥
| i cud ea ‘i
te ‘dd20% wield evil fede saw ovate Boldaveoxn. et i:
ot to ebte toee ode ao bine hous anes taebtoos mst owde vente: be
cy Ha bw sihdaroe bet siatom wi datoq tant te sto Rohe baat
‘to Yted ond aew 3% 0 Marooxe oxi te takeg ent baarot orn (aegh
sedi yontteresxe oitt fo Seg tt dace aad: Tse dood of Yettatete
tuods etedt seeyil beoadg das Tenia de baw’ ened rent ok iG Ea
hooale wtew Gy ll ost Ao lite mo \ModdevsoRs @xT> Pete ‘feet ae Mi
ae Ot thet 6 hee root & Shoe Rew ,haot BF To” obie teow |
Vir | ( bikow hel : eebe
“eit yale Keohe: few mas Doe bomgEE aed dee” ‘Vuttatals mre
ot hae (fan eh abiy hl end vom eRe ot joEatred as GhwON ty °
ehkistio tae #60 gate G00 Bingo ed Baga oe agar nei ek woe
ote 22a ac beoeqend yest send) md ediighi'ad? sea) ston
hess atoted I9Heh ‘ed Adcow ened tasdtoome baw
i od ,poogteg atid agit depos mgpone tal: Bihan’ BOTTA hy os
dévou Aiow of deca? ad ga! taut, Sai. Ha Seat: Rem oy 0d emi
ad ee animes palieyme soe at ahah sud. hag ote bedood ad
faa ARTs MTGX Fe HLrodoed Th oss of xecieuut eset a te |
bu f Seeiampantimee 523%.
ita 2 £ aia qo sala oF bots hemtied oc ha CARS RYAN OH ot Bye:
‘galt bee bo atOrleh page havodaKnen ont pape
peat eight ord oon Hie oereh hae ot Rew wae” oat! dap
Yo SwheqMPv Aad toy OF Baot ort “to odie tae eto ord
a ‘te eoseliset eat oF rmants ot sow baer with! Te: doloy alte |
entelt habe odds to ebtaeanw! 21 ho: baton! i
mee ytut 16: ked = Davos BbaTEe am UaetA’ ry) a
pe ok the car ost ee al *
ra Poe ee Tee Papen
atidenedinn : ot rir pabized ’
a.
“before he started to walk north until he saw Lt close to him, and
that was all he knew. ile says there was no hern soutded and
Bothing but the brakes attracted his attention to the automobile
defore 4% struck him. It was « very clear might in the fali of
the year, ond he wae freseed for all might work. .
Walter BE. Garvych, the owner of the residence, tee
tified that between six and sixethirty in the evening, while he
Was having supper at his home, he heard o sudden seream and the
gudden sound of squeaking brakes; that he imsediately ran down
yume gay an automobile parked on Yaukegon Road, going north, and
found the plaintiff lying in fromt of this sutcmebile; that plain
“tire was lying on the leftehand side of the automobile, in front
We it and in front of the wheel; that the autemobile ras on the
net side of the road going nerth; he says that he saw at the
ene of the accident the chauffeur of the automobile and a man
ar anger, and br. Teete, a neighbor, of Niles, ond the plain+
fs Hie reeolleetion ie that the lights om the car were very
ir. Teets od the witness, with the help ef the owner of
oer, put plaintiff in the rear seat of the automobile,
dntiff wae wieble to walk and was sereaming with pain, He
there were cinder sidewhlke on beth sides of the road.
in a shoulder of earth on each side of the conerete about
or feet wide, and then the cinder sidewalk, and tnen the ditch
01 fraining. At the point where the accident happmed, Yaukegan
Tune almost straight nerth, and that point is about four or
" hunéred feet north of the intersection of Mblwaukee avenue
14 Waukegan road, There were street lights aleng the road, and
@ accident happened right in the villace of Biles. The street
gh were far apart, possibly a block apart. He says that he
ere the lights were cowl Lights, and that at the time he
there was no traffic on the road.
gr a ae oe
ren
ee
PR, OT
is A yt
‘\
Sa S.,
a
>
oa Laan
Beh 5. ee Sry = (eal Saat Goi ink ee a
" hae ‘ie ‘oe beate $i wus oat thie ‘dion ‘Bhav''od' “pntuade ott’ i
“ite te Peas ferrdoustee alte ‘Yo daoer ak Yabyx vuls atere dt
4 sant ‘et
| A
pecn bebavon ‘nat om Baw exoits eae ‘oh wena as ‘ha
skideoorie ont as ie Lo med oa aia bohiertia soderd ode dod
54 aks ‘
to i fet ote mh ditoy ban tee Le eT & san it Rotd sown ..
; gpa hia
. tow titgta ike to? hecsors som gh 2 TaAey
eth tan ay
wad eousb ines oats to sone odd lowered a wi inW
cele! ¥
ast ok bite (gainers ond a ‘gialed ache nn ate nnowtad saa b
‘end Soe onev9a wobhom o “breed ee sand ‘eld te woque "
ae
ogo eet ¢ibdeiteomd of Fant jnederd ‘satieoupe to pire
bus fren yafoy bad dayodusl nd heittnd WE1Seantua i i *
Yaort ‘nt ,elidouddua wide “to OK fo ‘Biased tet | itd ‘ie “aie “eave
ee ap aan oiidomorme sdf tact jieady of rr) tao ‘al reais
add ta wad od judd wan nat petrton yaldy Keod bide te onli ts al
fest & forte ‘eft tivities ‘edd “Lo ‘tre Mun sty od fnoklodn oid 6 2 ike
wttteiq silt biuw ‘\eetia Yd (xodinise a sadeet Nie nds, as
UTSY Stew ca at! ne ‘otdpis eat "pada at “Weidde ekeoes “4
te xemwg suit te ‘aten odd thy Koeannits bin at aseet a
si ne las
on sated | Ag he aethnas aa ‘soe hid tiew ve Singat whi
ve
Hodth edt nos? ono fawebte tebats ipeeh sailed :
nerve -sinleeia hvenhoond sis arent fred feelaellt
“han beet wed wists abegaie peees os -
asdninh eit a6 iniigties Pesca vite dhe ~~ no
LEM CMe ia MRR MA apa yyy gui wit ee ee 3 ie nae eat ini
M
Th.
ii
bps
)
i
The Aefendant, calle? ae a witness by the plain. rr,
teett fied that he owned’ and operate’ o Cadillae taxicab of his
own for the Wiversity Club, and hed operated autesmbiles cince
1910; that on the evening of the accident he had « passenger, Dr.
Siumerman; that ot the time of the secident the weather wae fair;
‘that there were a few street lights on the Vaukegon Road, but he
didn't pay much attention te that; that he was driving ehout
“twenty-five, maybe faster, a trifle faster, thirty miles an
hour; on the enet side ef the Vaukegan Nead, about a feot from
‘the eige of the conerete;: that he gay the man when he was about
eient er ten feet in front of tim; that when he sow him, he tried
‘his best to stop, put on the brakes, but that he 4idm't blew the
“horn er euything, thet he hed regular Cadiiise cowl Lights, wat
ata not have the Lights burning in front; thet the lichts would
i “thew about 300 feet; that there were no other cars in front; that
was looking shesad all the time while he wae driving, but 414 net
@ee this man until he was ten feet in front of bin,
| At this point the court tel4 the plaintiff that ne
RO case, denied a motion to withdrar a jJurer wid sentinue the
» and indieatet that he would direet a verdict, and, after
ad dence of the physician who attended the plaintiff and who tes-
Arh oa te facts shoving damage, the inetruction was given. It te
| ¥Y wonecessary tc discuss st len th the very numerous cases
by defendant in suppert of the ruling of the trisl court.
others, he relies on O'Reilly vy. Davis, 120 BH. Y. 3. 993,
here a pedestrian walking om a streetear track, hearing a car in
re it of him stepped off the track into the road, vith whieh he
as farilier and which was much traveled by vehicles. The plaine
f pedestrian teetified that as he was stepping off the rail he
back and 414 net see anything, on? then stepped off and
four or five feet, vhen he wae hit by defendant's autono-
He alee said he could see in back of him for a distance of
“7 bakete “ A menagiw # oa fe flog hah yiedonadioea eat
; ae te ae ody c a
tet wo dap bens oeELthe® F hatenece Daw Doawe ait sent helt %
ps a ith, \ a Tye! a sg
eonte bid idometus. betareqe ht ane 10 wiletovtalt oat mi 7
et P gey on *
2a teaneeeng cy beat out 7 a9 tone ats 20 antaaye ont ae tat
juke sew indteaw oats sand too ots te ale oud ta “pastd yam
A Meg i
oa tud chaet aorgostin sit 2 senate jooxta => a ater ated?
eRe tae
suas sabvicd one od Sethe jtade of mots ao doe toms one ry
oe
ce Yee Ree ts
am satin wets tafont oftred R ytefas edyan “evtteyag q
Le, a
aot feat 6 ede aboot aogoiva® oat te able tas ‘old ao 7.
t bi eR ae oye
trrods naw ex as te wi sat mae oat jaa sototeaee oat te ogha
Bie iit oe op 8 ae Ge SRR
hetat oat abi wee ea Aesie tants ats Yo tae AL soe aos 28 i.
oat wane 2 oth 2 ed teats Sard eokars ont 9 tue sos of
aus atayh reo. ont ithn® mo Larges, best of Said, ia
ra Wee cd: ene XC: Me a
himew Paty ht sat tome seine at pated adiyht ont svad tom b,
tage : tao at eetines ar) ag onew wands auf? tea 908 Zo 7
son at rue antvish naw ot silse oats wrt iba Bworte paenees v
a ea Ap i Hy
amt re. taott at sent ant ane at Shaw nua cl
bei Bie Wed Ee ee ne
wi teat vabeat ne ont beet fren, ata tates nbd tA 4 ay
Pos deine he:
ive dae |
pit ‘euats x00 Sia rout & ‘wonhdt te os nozaon f be Leemb 18880 on !
Lae et jae ‘
we ite toliney 4 4 “deen te b Lown ad ‘uate basnobbat ban
Rey Brags UN A a.
“and ‘one hon Vittate le outa behaotta ‘ose se bo layed
a be Smeg
ok + movie cd noktowrsaad edit ogo pale ont atest
4) ce “th WA tees 7 ct
gene exotaaua sol oatg df; te sunoals of rrerey
* pad gy by he eae i
.fw09 dois ent te patter co Xe seongue at “tanbonteb @ he
sai eat Pi aah aR OR PM =) OER,
) ee 2 a. a of ao nelion wet wessste a
“4 4 OAC a ee ea ay
at haba s aatnend (Soar ussdroste 4 ae gatdiow nates Dog
on si Rate sig tw hao oat oust wont ana Dae | mtd x9 Pat
Ble eh ean sai die i teed wy ¥ 2
wahete oat, stelotiny xs Dosavand prin err, Seder fan hte
a Dey ce
od Stew ae, ve pttagn ae wae 8 oe niet Pe si As ignet has :
Be eee jae
nm '
ine. 9 honanse oe bam hy rem Hime. ¢ oe, seman
Fat satay et ah
i anata * 20% adsl Po ‘oud ate aoe biuoo nd b hee ontas Bi
ee 4
| nono 0! sasha tep we 4
: te f
i oe oe
[ee
about 200 feet. Upon thie rather Tidievlous testimeny “hich, as
the court pointed ont, imileated that whike PlaintiLer walked five
feet an automobile moved 200 faet, whic, aseuming the awn wae
Mekxing three miles an hour, would indicate the auntomebile was
@eing 120 miles an hour, the jud:ment for plaintiff wae reversed
amd anew trial erdered.
Defendant alec elites and relies en Prinoe v,. Claugen-
177 FE, ¥, 8, 168, 5 ease in whieh a plaintirr
had futement where, agecrting te hia testimony, at about half past
ight in the evening he had been walking south on the weet side-
Walk of » certein etreet until he came to another street, at which
point he eterped down inte the roaédway ant continued iu the same
near the curb ef the westerly sidewalk; that when he stepped down
fate the roadway he leoked norts and south and cewld see a distanee
of about two or three bleeks ond thereafter he did wet look ony
‘more, but when half way te the next street was struck frem behind
| by en automobile owned by the defendant, and the court reversed the
r é ent, holding that plaintiff wae guilty of negligence as a
Matter of law, |
Virgilio v. Walker, 93 Atl, 815; and Barus v. Weat,
aM BR, YW, 806, are alec cited, the one, however, being easily
! shable, ond the other, a8 wa read it, directly sontrary
; to the contention of the defendant, since, in the opinion of the
° rt, it ie there stated that defendant's counsal argued that
Tiane on « country highway myst look te the rear at stated
le to see if vehicles were coming; but the esurt said, "We
we aware of no such rule of law,"
Defendant alee cites Hedy
oo 584; Helen vy. Hew Sarper Hotel Co., 196 111, App. 94;
gileago Ry, Co., 222 Ill, App. 625; Sober been vy 0 lease
226 Thi. ADP. 661; ; Loe. af wiht CAMS Eis Be» 216 Til. App.
7 ral :
en ee ee ns on dios bie cette eats teabaood ae )
Webtabe te & ila bow nt anes 8 O92 as of. a ree wa cit. yu! ,
fase Lion tuode de \Wemltead add of paibroope sree fmm ,
soble: eee eat no “3uoe Behitae mead ba oat aakoovs eas. Ly ov
dn beter ts (teanxte ‘tent one ‘of emmy aut, oh¢ag soarte mietiag © ‘ne :
bey he
i @imoe ot ak eval aos howe Ystwhaor odd atat mwas Deqeate od if
2 av oh bean te ok dade. Pry piLewah be tivodaow na to dw eat :
| tabla 2. oon riven. Dax stawes bare ito podost ent arheor ot
eee wood Sees ‘pis eit aud tan ues: i axeodd oan 19 ow -
if batted mort! Moura saw Joorte ena ode of yaw ‘ihe ‘hedin ted
' eAd Hawtever. davies odd. bas faa bao tes ould vd boawo eiivesotve ae
| * 8 poadg bigot % We lws enw Middatata tase amidsos Pri a“
‘ ss 44 rt ip os ae ig yee pe:
sun te te
ES sah 3 me : dehy } ,
»dae¥ ax xarzatl bie sem fad, Be sada wy obtiaay ioe
i} 14. bbe apa gia ae
ilens gnked .tevewor 09 od shette on ke oe 208 oF a.
° y . OF ey
7
| ' rand cow eitoosty wh hoot ‘oe as » Tesi edd. haw *
ee ae kee
ost ‘to nokateo auld eh sorte sfaadanten ecld to. sole ze? ave amt
sy he eat Saat
‘gait Bownte Leumwiso a'fanbae'tos tans bovase ‘exede of #) vot
tL On Massy Si an
hetate ‘te aos ot OF took diem waif hal vrtawes ® no amet
oe vbtee’ denon oil tis palace ote ‘peta liow ‘th ne a ot ale avin ed
res 4 f ve $194
* wok to out soba ext te Stew
He Ds aay 4 eae A Re
eb @ ¥ Said heed Povywersyen Hy ne om
e
s)
i}
|
,
a
9: a. ai Col ust - ret pel ny: fs * By is we ‘ Ws ry i
| aadyk ,x0d eat" er i
Ruxane Hat fs ae mein, sth we
tai ie
ah) aaa ORR | RE
» j
Ce dP eee ee Pd, Oa
128; these latter all being cases in whieh this court reversed with
| . finding of fact under supposed authority under a statute which
has since been held mot to grant such power,
a
|
e There le no deubt Eamk of fhe rule ef Law apoiieable
he , which has been etated so often that it cught net to be
| psessxy to cite authority, nawely, if there is any evidence from
‘wai eh a jury acting reasonably ean find for the plaintiff, an ime
traction to return a verdict for the defendant should not be
Defendant does net argue that he was not negligent,
ni in view of all the facts and clreumatances indicating that the
L: intiff, at the time he received his injury, wae in the line of
‘ duty, that he lecked back only a fow moments before he was
ick, and the admitted speed at whieh the satomebile was being
| » the question of whether or not pisintiff was in the exer-
, of due osre, wan clearly « matter for the jury.
The court erred in inetructing fer the defendant. Fer
is error, the judguent le reversed and the cause remanded for
no ther trial.
REVERSED ABN REMANTBD,
el » &. J., and Johnston, J,, concur.
ane beerover Sion birt” oli it aonbb pated Tie cotdait' of
‘ia tate siytase 8 tonne hebriwiad gna whl ries
ea)
\
We Oe ves
ge FHV RNY Os Rt
veaeg tigen tou kaw ont tard oman re eed’ dein bietet © at) es
edt fod qubdooioal esonedsauette hab bial CU a tah ,
pacer! al abe oy whit ct sich! okt gh" eb
St ERA: cr eA eer fart to rer: te ssa
Na
PS BS ORR RUNE yg SORIA EEE ed iat att
ch ea xh A: as a oh 8.
ae he chao hina wine ab uM
‘ damoniall aL aL Ree ee 9 thet ot ee sl # dian
Rakes Oya apt Lahsiow at ose of ween
* ee nk ata wr ‘wim
ii oder gettke Savant )
bls ool a ro
Yeh oh it ate sistas esrencias
oft Nae al a ak als 1h
. HO }
lac Rees Fp
OB. werres wrcmerr verve om OPINION OF TRE cour,
This appeal is by the defendant fram a dvégment in the
of $2550, entered upon the verdict of a jury, motions for s
: er trisl ond in orreet having been overruled.
Plaintiff sued fer Commiesions slleged te be due to
B on eecount of the sale by defendant te Hicholas V. Deligiannis
Sad Antonie V. Deligiannis, on March 10, 1924, of = parcel of
t, at the southwest corner of Halated amd Congress ctreets
f@ Considerstion ef $85,000, |
| Pleintiff's statement of Claim alleged that on or about
Mat 14, 1923, defendant gave te plaintiff a description of the
Stated that he desiree to Sell the property, and requested
mtiff te find a buyer therefor. The plaintirr submittes the
y to the Deligiannis brothers, and that as a result of
*fferts of plaintiff, the property wae seld to them.
The affidavit of merite demies that defendant employed
iff or requested him to secure a purchaser for the
end denies that the preperty was sold as a result of
itt s efforts.
The defendant contends that the court erred in
tions given to the Jurys that the plaintirr was not
i to recover under the evicenee amd that the verdict
. =)
Seats
aR
$1000 aeg10 8a oR ASA I
,ORs9THD 10 ;
ey Z er goa ee a Oe
i ey h 8 KC :
G9 S4 a et 7. ' as a ee
aoa aut 4 HOLETIe ‘et cmonavELsd rab “gore
ae & “2 ae
ei Meek ES Page ae
A
eas si treat o movt tusbaste® sit x et Sosase atet ee:
gd ub eg od boystts csstdttanes cok bone 2Ut ts ee
“SY eafesto lt of ianbeieted Me toe ot Amann
bas setetat: ‘ne Heures sestatsove a —_
* 000, 88% 26 mottexeptston 4
suods ze so Goes bogetin mtato. ‘jo datemed ed & gyyttiensss 2 Speake
tara’ 6é évag daaineten Veser aii
asdues yes bab .ervegesg ad? Iise oF seriees od gate beakee Vb
ea sagd edie vidéniaic a¢f .toleted? toy 3 pat? ot stand
te siuaes “@ es sasiz bas eet otumetptied at rg - ot
smeeé at bios sae qotaes ea ssviiarate < 25 sist e
sixes te dtvsbiits idl a
shunt
— aisosts ‘seezsoe
sig 9 ‘moiiqisessh a vikew
boyotaae, suabsiaTed sasté netash a
ait x0 reasisusg = exseer OF mid sodennpes a isaiaig
ne tiunor a an Aton ane virenemt M$
The record indientee that the jury was instructed erally
by the court and discleses no epecifie objection by defendant at
the time the instructions were given. A general exception seems
te have been taken to the instructions «a givem, but thie is net
eufficient to preserve the slleged errer for review in thie courte
Ve therefore will not reverse for that reason, although we are
satisfied from an ¢xemination of the inetruetions that there wee
error in one or two respects.
. The controlling queation in the reeord, aa we view it,
is whether the verdict is sgeinset the clear prependsrance of the
@vidence. The cvidence in plaintiff's behalf tends to show that
on August 15, 1925, he called upon the defendant end aoked him if
he was the owner of the property in questions thet defemeant said
he was ome of the owners; that the property had belonged to his
er. Whe upon her desth left it to himeslf and other heirs;
t defendant asked plaintirt whether he had ony purch ser in
nie ané plaintiff said he had ene fer whose business the
Property Was suitebles; that defendant eaid, "'Te@li,s it seems to
ne that @ deal ought te be mace here, the broker ought te be able
te maxe a deal here,’ and then he asked, ‘What do you think you
on get fer the property.’ ‘Yell,’ I ssid, *2 rather not akewer
Wet question.’ ke said, ‘Why mot.’ f said, tit might prove
mg if I om uneble to meet the price that you say T ought
| @ble to get. I'd rather have you set the price on it.*
" he said, "Well, we have hed wome talk about that, and I don't
ink we will sell that property for less thon #85,000." TI anid,
don't know whether I cam get that much,
would net pay on that basiz.’*
Plaintiff saya thet he then wemt to see Deligionnis
@nd om the next day reperted te Plaintiff on offer of
that apparently
000 for the propertys that defendant teld him that other
wh hit aetowesamt aan ‘uel mde toate - aod kin pronon ae Oe
ga Sashes tes Ut so leeatde ekiiogge ai aveo Louth al re:
sous i AN Ml
" Fi
opi (ne ifs
PE ents at wolret tat cate neialike maid ovr
‘pun ow dywordLa qmonnes, tad? sez ea teves, test ht i Ye ox ‘ ?
sor myer Snake iiapeaaguasii ont, bs no Ld ankman @ the nent nokta:
Di... Cond 4b ao ak 20%
‘ ey ¢ {
ne bel nn ee
ooh voly oF ae, oPtnees od? Mh. BOL BONE, BF
one 20 epmassbnog9 ane Le, odd senkags oy »
seat woslg of aboot tieded atrunseiagg at come wobtys phys. 06? ,
vk mkt bees hits dies desta od, ade 4 en. no bis ttl 4
_ptee snpnie® sede pnotinowy & mi yisogons eat ft 2 ee sf Bg!
oak ot oop ted boat Dd. a tial “hexe Pan mel 30 9m, }
perstort wollte baa Thomanhel oF 94. ‘ook a8 shag ties Poe: ' |
mk concsovut mn waek ond sede be ahsanaee,
| eit enombeard onasty 10% teas ’
% ot, amen: hig Akg, sPhae saeinge’ atest . | ;
etd ad of sayeo elon, wt owe ebe Per sigue, £05)
0% std? 2% ant: reeset Beds eee e
towsan fon cottos E* ebt, re SEA pou?
even aad ah! dey, x. es ron
sigue 3 yee Key, fed ode. ott dope, 08 whee, ae
Yoh me, opiate O98 Rah hy ae taattt "
étxob, 2 pam, fag? swede, ding moe bad es
phiee T ».000.804 mast? anok wt ven saat 4 -
elinoxeigs gadd edoum, sal? 2
| “ ho
FARMS
-3-
parties were interested in the property} that he better put it
im writing, which he did, but a few days later the offer was
declined. Plaintiff then suggested to defendant that the
prospective purchasers might roise their offer one or two
thousand doliers, but defendant said he would not consider thate
Plaintiff again reported toe defendant in Setober and
reported that the prospective purchaser “might offer $70,000,"
but would mot make the offer unless there was sone prospect of
it being accepted. Defendant told plaintiff to cet the offer
ond put it in writing and he would take it up right away with
the other people. Om Getober 25, 1923, plaintiff wrote defendant,
meking an offer of $70,000, which wasithe final offer as he aaid
of the purchaser. The letter also stated thit $3,000 of the pur-
chase price would be paid in cash, and a mortgage given back for
the balance of the purchase price. Plaintiff, in the letter,
which is in evidenes, strongly urged that defendant accept the
offer which he said would not stand open.
Thereafter, defendant informed plaintiff, as plaintiff
‘says, “umlese I could get an offer of 935,000, it wag useless to
ask the other people who were interested with him te make a deal.”
i Movember lst, plaintiff, with Nicholes Deligiannis, sew
fendant at his office amd plaintiff saye that he asked them if
had met before; that they said “Nog* that he then told
e endamt Deligiennis wes the purty to whom he hod been trying
7 0 #¢11 the property, and that he had agreed to accept the
position to pay $85,000 for ity that defendont asked how much
; ee » amd Deligiannis said he could pay $5,000 ensh down, $5,000
‘ : oix months, $5,000 in twelve months, ond a mortgage for the
. » Pleintiff eays thet he then sugyested that defendant
kK his own attorney for advice what to de, and defendant agreed
7
$i toq xaddod on sums ¢ twWroqoug edt mt Sotoexsdmt etew wots xing
eaw a<etto adé togad ayob wat s gud 45ho mt soldw nares
exe dass dr boe koh od bedaognes todd Yikes’ Bi
v owe 10 ono torte sheds beket Jdgim exenodoceg an J o
etads tohtawon jon biuow sf Siew SHabasted dud eotalleb banas |
| ban cedodo0 mi tmabseteb of bedzeqex atoge Yteatals Seiad
4006, 098 tet te ddigim Tomadouuig evitcoqeaxg ods sudd bedno 9"
to feoqaeng see exw exedd evotar <eTte odd oan fem. biwow aug
torte eg fos ef tikémbelg Bios. Jombae teow, . sbotgosos gated i
ake qyows fdyls qu 4h oaleg bleow oot Sam amkotow mk’ oh swat
stagheotod atouw Vikdatelg yeIeL .£8 sedevoO mo” setqoog wiles!
bine of us aeite Laat? midianw dodo’ (OOO.ONG % torts a
tg oft To G0O.6% dod bodate oale ‘teste oat tae. ‘ont
ing
LNA
ot easfoay aay 92 4000.86 ro Yate tia doy Weide dad
*, Lands & estate of min cow bedsetetak ovew esty wet vedio
was yetemokgitol ankoxoit wetw viddndaly del 29
2 molt dustue od Vand vysh Thivmtaty bus vette at mye
Bkog moxie sit aasis MER” bho uate nM” meticgpiccs
gatyst aed Shel of dost of ydcsg ont wow etanstghtod tf
ont gqseoe of seerya boat ‘ea saat bas eeerogeny ou 9
BPG) pe oh
dete won hole taboo soils a 0 9005268 we oe ao.
we
with his attorne
te meke an appointment/as goon as possible; that he saw defendant
the mext day at the office of cefendant's attorney; that the
attorney asked what the deal was to bes that plaintiry HALA,
"The property is selling fer 85,006," and defendant said,
"No, no, I want $85,000 Be’ to us, my people will not stand
the expense of the abstract, the stamps on the deed, or the
' Commiesion.*
Plaintiff says that he teld the attorney that this
would be an unusual proceeding, to whieh the attorney replied
that it wea all a matter of agreement. After further conver-
sation, plaintiff says he spoke to Mr. «. Deligiannis on the
telephone and told him that defendant now wanted the cost of
the abstract and the comaission added te it, which vould make
about $87,900,
On November 5th, thereafter, plaintiff tele éefendant
that he had seen eligisnnia, who had of fered to add $600 to the
$85,000, rather than have the deal fails that Nicholas Deligiannis
had left the city, and the deal would have to avait his return.
‘Plaintif’ says that about the middle of December, and after
Several interviews, defendant told him that the price had been
Faisec to $87,000.
Upom cress-examination, it was d-velope: that plaintirr
hee several conversations with Deligionnia prior te to August 13,
Aves, ane thet he hod discussed the property here involved as
wena a8 others, and he admits that the first and only discussion
: te brokerage commission was in November and im the office
of Jerreti, the attorney for the defendant, and that defendant
1e listed the property with him.
Antonio Deligiannis testifies that he first started
tions with defendant with regard te the purchase of the
a tty in 19213 that he sent plaintiff over to see defendant
”
éusiiis toh wou al date tetdtnect ak Snel an RUORRMOOEA te Ma ©
at Sault pyemcedds alinabastes te ookTte odd to nab dxom me
eblog LURMRiadg tats gad at ane Lino %. asbs dads jedeo variety
shtoa dmehaoted hem 4000.88) 502 ymkifos at, yi xegong. emt
bttade dom Likw ohqoog wm vat as gem 000.888 sanw t oom el
ndoone y book edt am eqaeds. ond etowatedo, ong, to-eanogxe od
eidt. facid yomsedes odd. pled od dome oye Tikdelall |. 4
fuilqus qomotia emt dokdw oF. egniberoorg Leweun
eaevnoo satan redty ¢itommoya 20. zed son, atine “
| 0 bt a phonetyh fed »° «tl of elega od ayes Wtimkela ampds
| 2a Sa90 edi Sette won Janduored Jody md nies, sna onongs,
| slam hinew fisldx «th ad bedde softnaimmes ode bnew
OH},
Inndaskes of0s srymtate, «0d taoaeas + mi, poMenies bose
edd 02 000% dda at aoxete head odw yndamatgi tod mess abo :
atanaigifed aslestol® dads glint faob ons ayatl mals seldom 9 OO0e
oMUIet ait dhewe od eved ALeow Lash ould Papal nats
tette ban ,tedmest toe sihoia edd guoda dnd w |
mood hes sabre sci toad mts bay samdantod gawey
Vetennetian’ teds 2eqedov.d eow 2h, sina
‘
sth Jovgu. of wohag ebraskgiled déiw sxolisenevites
26 bevdowns oted wsectre, walt, Demaamnnk hah a
_ bedzate text? out tut annrteesd
Bak oa: We
#8 asa say AE AR eae sty ten eee aie i ie’
‘distal eve mis IH70 » saat tase of dadt (i508 ab
SE ee Ve SOM ROY I PER ge ‘ ~~ Si . we
«Se
to buy thie property, giving hime price of $65,000; that plain-
tiff came back onc told him he could not buy it for $65,000, and
that Antonio told him to try ond find another property. The
witness ssid that after the deal was closed he heard plaintiff
say to his brother that he (plaintiff) worked fer the deal and
"you ought to give a few hundred dellars, two hundred deliara,
because you closed the deal directly with Mr. *aters."
Hicholss Deligiannis testifies that befere suguot 15,
1923, he asked plaintiff to try to buy this piece of property
and told him thet they had tried te buy it in 19213 thet he told
Plaintiff to offer defendent $65,000; that plaintiff reported
te him that the offer hod been refused and thot an offer of
$70,000 wae then made, which was also refuseds that plaintiff
eftervwards said thst he could not do anything with defendent and
would drop ity; that plaintiff afterwards showed him other property
which he did not buy, but afterwards he Deligiannis closed the ¢ eal
with defendant for the property in question; that plaintiff afters
Wards asked him if he hed closed the deal, and he said “Yeo,” and
that plaintiff said, ""Well, he said, ‘Don't you think I am entitled
te a couple of hundred doliors for my services; I went a couple
Of times to see Mr. Waters.’ I said, "You didn't close the deal,
80 I don't see why I pay you a couple ef hundred dollare for it,’
And he said, ‘Well, if you feel that way, it ds all right.’" This
witness &leo says that negotiations for the purchase of this
‘Property was opened with defendant by Deligiannis brethers in 1921.
¥ The defendent testified that he first met antonio
‘Deligiannts in 1921, when he ealled in response te a letter
¥
’
aie he received from the brothers and discussed this property
nith émtonios that in December, 1923, he next saw ntonmiqn at the
of his attormey, He says that when pisintiff called on
;
&s
iy
| sitet told 1600.00 Dolsoing a ald galviS «v@roqora@ ated wt ot
hen ,O00,8R8 cok 22 vod fom blues of mie) PLos ime stoad ati:
ont «Yemeqong. sadfens. oak bee Yre 69 mks bhed chaoteen: ta
| Vksatadg oeoed od benele wow. Loob ods xOste tadt bhoovnmonmth
| bas Lomb eft 10d dodxow (RRAtmtetg) ed dads coddend elated. gil
| eotaliod bocimudt owt ,eteldok bexbaumt wet o, ovky oo: siteae woe
| Yexoda’ an Ai kw ELiver ts isob odd bagels’ Ps jms
| bk Feines OvOCRs sods wOREeort ahanadyriot adketele
| utunqesa Ro seeing add yxd of ost of Titemtadg owtew od yOe }
Bod at nals pBRE mb aE dvs bode Ihe ysis: toad intel bit
| bagwoge: Vebdabaly dads (000,036 smabiotes rots od TTEswhal
Yo 4ette ms said bas Domrtes ased Bat et te odd Got te ‘ *
| Tissntale tedd gdsawhos onin eaw sodsio .obam gets wow OOO
| ‘hi Sumkeotel Aitw gaukseqmn ob don oLwee ef dod? bine) eitniel
Yeager, terse mit hownde shtorwer he Vksakelg daly beni ‘
Lae ® walt bevels ekaxokylink of absawtedhe ded .yd fox dsb a
erode Wktakely tad? smektueyy: mh MP eqemg asd: met stebavten ia » a1 |
bre “g9et" bisa ok bas .Leeh odd beeede bra wah Ta mbt boital! ye
‘potdhine aa. i ankdd way o'med! y bine of ySLoer?* codon URRGeANe te
ehgeag @ dnor 3 tasolvies we we? santLod doxboml’ te: elgiood’ vi
efeo ol? ocede #'nbkb wok? yhton T teexose’ awison ed memnen
teak sek atelhed bet basd To oLyueo @ soy Rag. t ‘Yale one 3 aos 4
ahd? “*, duke Lhe ad dh a Yow dad? Look wey th Stowt (knwo oa
alts Yo soaslewy od 102 enaisoisagon ante aysu obe we a
{90L Bt exadgord gtanatgllod YC Imainoted dete dorege naw iyseege
otmeses som deukt od dest boktisaod snennnsn ean «
medted s oF estogeat ah belles om teadw (SRO. ka
elreceny athd bonamects one eucddetd extr mee? panrrarerey
ait ta prnnens enn ewes. ast 1608 promot a tate alnaem
Hi
nh
aa.
=6-
August 13, 1925, he told him thet the property was owned by an
estates that it woa for sale, if they could get their price, but
thet plaintiff would have to make the preposition to him; that
he anid that he (defendant) said, “ald right. You put the
proposition up in writing, and I will submit it to the other
heirs;" that nothing was ssid about the payment of any commiasion;
that plaintiff afterwards submitted an offer of $65,000, which
Gefendant refused to submit to the heirs; thet he afterwards was
at his attorney's office, and thet his attorney then told them what
Was wanted; that they would consider $85,000; that nething wae
mentioned about commission, but it was stated, “ve wanted $85,000
Ret; that didn't include the commission, bringing down the title,
and the re:venue stamps" that plaintiff seid that that was not the
gemeral practice of real estate meng thit sellers were supposed to
pay the commission, but that defendant they wanted $45,000 nets
thet claintiff afterwards got in communication by telephone and
Wanted to know if they would open up the deal sgsim, and defendant
told him that the deal ss absolutely closeds that they were
through. The witness says that he did mot st omy time promise te
pay the plaintiff any commission.
‘We chink a preponderance of the evidemee indicates
that there was no contract of employment. The fuct that
Megotiations for the purchase of this property hed been opened
Detween the parties two yeors befores that the whole transaction
ang conduct of the plaintiff is consistent with the theory that
he was acting en the agent for the pre esed purchasers instead
of the vendorses thet defendant was only a part owner of the
‘Property, ond disclosed that fact to the plaintiff stating at
Saiferent times thet the propositions must be submitted to his
ot aakmorq sale vane oa fom bib ed todd ogre enondhy ‘eth. 4
eG | is iain bs ee ae a a
plan Ob aaa nan ghana, athbedh ah aie ate sestungs
Sed geokiq “keds tog akvoo yd Rh cohen wet maw th todd qetodu
Jatt qukd e¢ golsbmegeng edd oclan of ovad bimew Thee rr.
ods jug woY «tight Lhe" abkae (tombaatos) laahiieeal bina
_ eeato wit oo bf Bimcwo Lhbw t bam ggaddiow mk qr sohsheoge
{Nokeaiamos Yas Io Ianmeg of? fade bine caw guddiom gems Menmhe
_ sto tile, 4800.83%.%0 sotto ne boddtedre abunexathe Reentesa tag
sew aiteniedte ed doit gended otf) of thewoe ee doawtew Ineh te
Sate eiasls Blod werd Yomande ned gael dma ook rhe w gomrotte ake
gum pabssor sacid gO GO) teglenoe OLuar yott tent. eaten i
$00,886 dadaws 2°" .hodnda aaw 2h dod auohontames goede | “6
eWLthe aft ovo grignixnd .soterinaes veld ohetons | Oni stat a
ett fom saw toud tad? Uhow Vikimtaty dott “ququade SuAOTERE o
eo foneuguy exe QtéiLve tlt tao odetew Lax Sy en
999m GOO. M64 Gedemw godt taebae tab ‘Wansld: Sad: evo kee Remawa
bus snaigetes wl nekscolamonns ab dog ebtawred te qrtomtade |
srebaches au ethege Leak ode qu soge Siwew yosd) Sh woth
oo wet yet Sade phenets cletuloede sow Leodi walt Poste mabet |
tO Lat ieemas (oun rekeatate ast
Resaotenl eomesive axis ‘hime woe haegeng @ aide ® )
ets 2oek ef? wtaearolysm Yo @oottnoe, om st alti M8
banaye need hod iyitegeng ald? Re wemeleneq od tot asbh oe, —
MO LTeuaeect oLocive wt geld gouolod amacg awe nokta esd a
suns, yromls ose City saetahamon eh Wisndekg salt 0; toutes
hantank gtonesionmg, beso erg om? 10% sanpe pelt) pay BIER | 7
odd Yo WHO due 6 LENO. Bat Papbap Reb Pecd gercahebm: aki
te gehiote Vibsakelg eds, 98; fon geal? bosofeaks ‘Pata
ait od bedstadwe od gat imei onttan ne
,; ig
aN)
ote
@o-owners; that after the deal. was closed plaimtiff made a claim
for commiseiona agsinst the purch sere - all tend te correberate
the testimony of defendant to the effect that pleatntiff was not
employed to act either fer defendant or the other owners of the
property. Indeed, it may well be doubted whether the evidence
of the plaintiff is sufficient te show prime facie the empley-
ment of the plaintiff. A preponderance of the evidemee indicates
that plaintiff wes not employed by the defendant, and without «
eontract of employment, he ie mot entitled te recover. (Silcex
ve Andrews, 150 Ill. App» 276)
For the r ezsons indicated the judgment is reversed
ané the cause remanded for another trial.
REVERSED AMD REMANDED,
MeSurely, ?. Js, and Johnaton, J., conoure
nielo @ ohem Vibiatele bowokey apw Land odd cotta sod patemvrons
aiaxre@oxtes 69 beet Lia + ewparciomg edt Senkege emebeat ="
fee gow Vittaiety dows Soerhe wit of iaadmoted Yo yombeuon a
edd Yo wxckwoe <neldo on? To daabarteb <6Y anmdhe doa’ wt is
we geet eld Shoo wbeg wede GP omotot we e) Vensmditg’ wai
soduebbal vorwrtve elf Yo spnoxebmogerg A «TUNmteLe emt ke
we dwertste bas 42andee tod ont wh Seyelems tem asw Tetembate iy
“ROORLY) «wveser oF SeLshine dou of ont ,trem~plgme te! dowel ¢
becuwreN Gt sammgbel of? bedavting ehenee 2 ade Ot si
We I Sa: IEEE ke SEN ks
UI ARE ore ORR Rue ode au Au ues Rie ey ay i
Saw, etait ead artic Stents saa aguante We peda
PR RORY, Shtbas vee A Res RAE RRR Ae anne qari ae Ta RGR
(ie Cleon se Clr
} 0 ; shin st at hay Me ait OER hei A inet Oe
Thay ; SAA EEIMD Rend SBME SiR Rites AC ea Sh) aa ep it Bey By ao
wees Weenies srr. ee Aaa al ba ial aaa i tam era a
BARES Hate Lae: Ral Ap, See Ra legit ana Namal amie
i P Oa ie ,
ah
462 - 31613
LILLIAN GRACE MeDONELL, }
Appellant, ASTRAL FROM CIRCUIT comT,
Fe COOK COUNTY.
JAMES HARTNETT, : ee , =
Appellee. my os eZ _
MR. Justice MATCHRTT DELIVERED THR OPINION OF THE COURT.
Thie appesl is from an order entered By the Uireuit
en Deeomber 5, 1924, overruling the demurrer ef i.illisn
HeDenell to the answer of James Hartnets, respondent,
te & petition fer s writ ef assistance.
The petitioner elected to stand by her demurrer, and
order therefore dicemigsed her petition.
The respondent, James Aortnett, eliheugh Kimself on
practicing at thia bar Kes net appeared in support ef
b ercer appealed from, end the appeal must therefere be decided’
thout the bencfit of his views as to the low applicable to the
The record diseloses a bill filed to foreclese a trust
on duly 29, 1922. Te this bill, domes Hartnett, the maker
he trust dee:, the Central irust Co. of ‘llineis, as trustes,
@ Lillian Grace Mciionell, who wae alleged te have some interest
te the lien of the trust deed, were made defendants.
Res Hexwmett and Lillian Grace Me-onell anewered, she «dmitting
@ allegations of the bill of complaint and alleging that on
ne 20, 1915, che recovered im the Circuit Court ef Cook County
. ageiuet the defendant Hartnett for $5,295 damages and
ceste; that execution thereon was returned by the sheriff
ed, and that the judgment was im full ferce and effect
| y,
eET8ROD MEO’ ear ot ea ee “ee resi
a Ces
| oA tS # J BN oN -soitoass
| Mh BREA, SRD Mh ul tay y wi MTORR. ORE a
<ABO0 SRT tO ROLNIGO ART CREE remota sore
“i sheen ef : aa
- $hwort0 vats “ef beresus rebro me ‘wor? at Losqus page A ca
as eee he
maktiRt Ye exceed ol? pabivxzeve DORE 2 tado00d » ne
sdeebregsss. atentet eons Ye rowan ol ef Lienotert
seomnde tues te aisy a et goitiseq 4
tea .tertmmsS sed od funte 63 ‘petoote “somes ideq ott ore
.mehsiseq ted Secelnntd sieleted? iste |
ga Usewis dasediie .tiestroH comat yimenmoqest AT
Yo Sxouque at dorasque don sad sid abd staan’
dimbiens od euebessid dar faswes: aid ban qmott deLsecge tek.
aes o2 eidooitiga wot ss of ee awely aid Yo $Ttoand oad §
tonsd « ocokosiet of BELL? Liid s asuolosth szpoet oat |
cote ed3 .idandcel somal .ilid aid? of .S8eL «85 lat me
xeedaved as ,aiemhill to sev Samxt Leréaed odé 2008 sonst
fesxstni smoe swat of dogelia saw ase _Stouotest eoox® mabitet
seiuaineled ehax oxew ahosk demas ed Yo well oe, ot |
gutisione ast -fetowars Llenaine pean mekiled all 2
mg ted? yatgetio haa Inbaigmoe Yo £Lt¢. wes te on
=Ze
and & velid lien upon the real estate deseribed in the bill.
Phe cause eas put st iesue and referred to a master
who reported in favor of the complainant finding the facts with
reference to the judgment of Jume 20, 1914, 25 alleged by
Tdlliem Grace Melonell.
im December 1, 1922, all the parties being represented
by their seliciters, the court found that it had jurisdiction and
‘@rdered the master's report approved end further specif ically
- foune that Lillian Grace Hevenell hed «a velid lien upon the real
_ @atete for the emount ef her judgment. The decree entere: in
Me
| its éetaile conforms to the act spproved June 11, 1917, amending
rtain sectione of the act approved Barch 22, 1872, in ferce
ri, 1872, ae amended by subsequent acte with reference te
_ sale ef real estate uncer judgeents and deerees, directec the
"moter te execute the decree, and that immediately after the
expirction ef fifteen months after the date of certificate of
Anfebtedness te be issued, the premises should be sold by the
ae in chancery, or by hie successor in office, wless the
lsc been prior to that time redeemed.
On December 5, 1922, the master presented a report
the issuing of a certifieste ef iniebtedness to the
zamt in accordance with the statute and decres, the
of a duplicate of said certificate im the office of the
® ef Cook “ounty, and om the esme day ean order wan entered
“Pesiting notice to ali the selicitors of the filing of the
pert and approving and confirming the some.
Om April 29, 1924, the mater filed his report of sale
distribution, dated April 25, 1924, reciting thet on December
. 1922, the premises had been duly redeemed by lillian Grace
ede ae a judgment ereditor in accordamese with the provisions
sffkd ad? mk SedizeeeS edadee Ine edd moqu meli biisv & ul
gedean “ 62 Settetex Sane eeni an Seq anu euwan oat sie.
‘débw agest off? gaint saanisiqaes eds te seve? at aaael
ar — ee gSl@l Os cai te Jinan dist ‘ea? o3 ‘eometotet
3 effemoiell soa¥S Deegan
‘bedeeceaqges patted selditeq odd ifs ,SSeL af. qedmoact ideas all
bas metsothedaut Ged dt gad? bauot 2en0o ond .etedichies «keds yd
giles) tiosqa <edéast bas hevetaq® #<ocst a 'tedoem od? Setends
feet e€i seqs meli &ilev « bail Ligmote€ ogat® matifii sad? same’
ak oovedae saxsed aaT ~daemyiul ted te sawene sd? cet sfate ,
gutsoome «Tick eli saat bevowggs foe sof3 of samokmeo | ettaseb oft
comet mi <ST6L »8S Sorell geverges tea ede Te enmisooe mthads
of somaietes ative stone smexgeadse yd behaews se .8V8E .f ve
ofS Sefcocis .gootesk ban esaomybsi ashaw sdaéze Leet to rel:
83 tedte yYiadaloaml Jed tue ,ewtsod ems. eae0ens Os
te vteeithoves Yo efah ed? teFts acitaed mesd2ht Ye
e6¢ Gd bhes od Biwede asaimesg of? a beweat of 62 es
"wat? aes goo8Tie mi wenssoone afc ed ro .ersemame ub
shomeebeu amis jedi of toleq aosd bed oni
$teqet « bedaiisevg esdead ods .L8OE 48 tedmesT 20”
eit @3 asombesdosai-te etsattaerse a Ye gitkimea’ off 3
ed? youssed bas Staseds of3 Aide somebtooen Rt triettelgs 2
| adlé Ye ouktts eds at edeotiisses Shao te etsothgub ote Galt
Borsise So¥ Sehae HS {sb Hats SEs aU Rua yytawE? desd To toSnbsal
exis te galllY ond Yo exmsishien ons £58 es outdo °
sine %o exeqot abd eld aedos odd «REL OE Lhags ao
rodeeost so dad? galt tess ePORL 42S Liaeh ‘setah ymotse
enen® mot liht Xe emote ire n206 ted sonia a ‘
-3e
ef the atatute; that the sheriff ef Cook “eunty en Sccember 3,
2925, issued to her a certifieste of redemption whieh vac duly
fecorded on Lecember 4, 1925; that the moater had duly advertised
the premises to be sold ‘gril 24, 1924, a= per certificate of
Publication attached; that Lillian Grace Me-onell bid $13,000
therefor «nd the master sold te her the said premises.
| The master further reported the ciztrivution of the
“oun realizeé from said sale in accordames with the terms of the
“@eeree showing « valance due on secount of the principal of the
“gertifiente of $179.47.
: Om April 29, 1924, leave wae given the defendants te
4 pet 4
objections to the report within five days. The record
te disclese, hesever, thet «ny sojectione were filed, and
M order was entered on Kay 7, 1924, thet “mo couse to the con-
, heaving been shown,” it vas ordered that the repert of the
ser be approevec, ratified and confirmed im ali respectse
On Mey 165, 1924, Hartnett wae notified that om the next
: She petition of Lillian Grace Belonell fer 2 «rit ef assistance
ald be filed, and on May 16th, an affidavit and comand were filed
. that on May $, 1924, ome GlenA, Lloyd had exhibited to
- ett the master's deed to lillian Greece MeDenell, dated April
1924, covering the preperty cescribed im the demand, and that
a signed by Lilliem Grace McDonell, and reciting the decree
becember 1, 1922, the sale of the premises to Lillian Grace
Pomel) April 24, 1924, the iasue of the master's deed te her,
ted April 24, 1924, and that demand was made for imediate
ef the premises.
-Om the came Gay, Lillian Grace Helonell filed her
petition, in which she set up the proceedings heretofore
Smc prayed that a writ of assistance might issue directed
URAL otters tye tedaete
26 tedmescG me Ysuwe) See? Yo Thixede edg dadt yotudets ate 1
| yind cov dalde molsamones Je eteotits199 9 redo? bowant 4284
| bog hotevoe isk bad seteam odd dost Gi00L, od sadmposd io bebtess
| te edeghiheses oq 26 2950L gO Litas bfen, od o2 seadmang-ad
G09,649 Biv ifsmeck coast meliill jad3 phedeeséa motisah tds
Lo) see: st@eteong dies ad? rad ef alos totess. add das soTeTe
| @88. 3a gakéudinieis ef Sedsaqet sedéuet.eegece @8F apo)
| eif Ye sued off diiy venabinsee et elea bhan mex? bextgeonam
eS Be fagioniag sii Yo Jeseose ne aah. secaliaeocniacionuel anes
93 giustgetes sd2.qevig. aancemns hSChe a ae
| A Stese7 s8T seb weil aids iv <teges Shs Otow: > ll 8
5 : bag hadi exer avoltesiée. yas. os stevenad <taofeonh of
| neo Sdi OF cause OB Sn8s 4260 41 Yh no Soret ex medeE,
- gtté Be Steget oGs sacs Seaecte gew. dh “eemgae mead waives Sine
_ sadesqacs Jie ai sengdines bin, RAbhsad g oovO Reg Se,.2E a
inom oS¢ 0 Jad Sesiiden sew sdentuel -50L 08h WOE Boy o
sonndeiees. te-d2se 9 16). csens% K.nen® mehiihl Yo,melssseg @
hall? orew hemes one Jivasivie ae 24304 yak me bas. obehsl em
O32 2ev idisias bed oyedd sAgoi® spe 980k <0 ewe, tad? 9
Ling.asteb _iianaisk sont) askiétt.oa, enbvolgetaee ode a8 =e
dials bag. becmek odd at bevtroseb ysregeng esd gabteven, ofl
‘conse a8? gpliiees bus otinwetet. anges. seALELE. v6 ware,”
. Meee melihis 92 Leena st vs del aine ahs OE.
etal dommes zat chem. 20 9.tenge Jedd Des pie cit 088 £ te - :
SESS, Rte RE RR a
roel
«ge
te the sheriff of Cook County, commanding him thst he, without
delays preceed to put her in possession of the oremisen.
Gn Hay 20, 1924, James Hartnett, by his attorney,
filed & demurrer toe this petition, snd after warious dilatery
preceedings, inclucing = petition fer a change of venue, which
was granted, an order was entered on October 4, 1924, overruling
‘the demurrer and directing Hartnett te answer the petition within
five days.
Bartmett then answered setting up that st the time of
‘the execution of the note and trust deed, he was owner of the
| sea described and resided upen the same and had an ¢atate of
eteads thet he was at thet time the head of « fomiiy, residing
with the same upon the premices, and thereby was a houscheléer
‘entities to a homestead estate, which «as exempted from enale fer
or other claim by foree of the statutes of Illincis emacted
. the legislature pureusnt te the requirements of the constitution
1 Illinois; that in the trust deed he waived only the benefit of
' exemption and homestead in favrer of the hoider ef such
ty and of no other person, «nd that petitioner wes not the
for whese benefit such waiver was made, and thet at thet
she was not a judgment creditor ef respomdient Hertnett; that
j if Lillien Grace MeYonell is a judgment ercditer of the respondent,
‘he decame such long after the execution of the trust deed, and
the law then and mow in forec, she had uo right im the
| Superior to respondent's homestead estate and exemption,
Bd was mot entitled te a writ of assistance to dispossess
| t and his family. |
Harhnett, as respondent, further answered that the act
‘1917, amending the statute then in effect relating to judgments,
8 and excoutions, if given the construction for which the
Pe ee ee a ee
. jaeelmeig M8 Yo Robeseewsg et “cord diy 62 a veede
" wectodin ald yo. 3feudtsl demat poet Of Yul nd OOO
qreiskiS aveFiey <efta bas etOEDiteg etad od t9vmmed @ tefl
folde ,oimsv 1 Symes s tet molStieq 2 gatSutont 4 qed Seses
uktiovenve jSS@E ,2 t2des00 wo beze308 ‘Gee Getce Bd , Bedale
wttsiw seftiveq od3 aware of SdendveR gut¥octis bas Yer
‘ seamen h ae AE ype
esis Yo xemwe aaw od .de08 tems ous ote: ode te Mete
%e efsése ne bad bea saeaglteendons aheguenasceee Dodiaoesh osesae
‘Sintite deed s acs Ydexed? oon 29a lnterg off weg aia
oot Weee Be nedqsoae ce? Aolity .ofesee beodeomedt & 6d. sania
bodeane ekowhift ‘te avdageds ont to sewer ‘ed sitefe zegve <
nokie¢kaencs eid Yo edetnetiinpet ous 62 tetewe<y omistebgel od
to ditsaed od? Yims bevicw od heek faire? ofS at Soxks (tonasss 9
"Hous Ye “sete? sii¢ Yo aoval kf seoteomed bd ne tiquexs
és 360 EW Ges he hid Sas Wk ee ele Se a
$ds $0 HadS bao ,obin vie sevice dete fate becegsive
geld (edoadcal dadasmqes Yo r9dise28 Suemgoet s We aw €
one ‘pats bed TesBbore ornnore ta 2 ae 1 one
ee » de
se iquons dase statue Resd ssa ‘eViawiabudee oe
eee
*Ssusuaowadh oF ttdebies BS a 2
tes afd teat perewens zedsuyt etetaogses | te, @eséiek
<i ty spdely ach yet Pa tee ee
edmonpeert os waktaLor ‘ootte at ands sButade ‘edd guthwoms 4%
: * . 2 fee 4 Saale. 2a gaog SLR, a
SE ae dolse s0¥ mbhduiedemee cat mit rig tt am » bas we
-5-
petitioner contended, was wholly unconstitutional amd veid because
the act so enforced was in deragction of the veated rights ef
petitioner, of which the Genersi ssembly and the judicial depurt-
ment of the state could not deprive petitioner er interfere there~
with, so such right of homestesd estete and exemption was protected
by the particular provisions ef the bill ef rights of the Illinois
‘Constitution and of the fourteenth amendment to the federal
- @onstitution.
ze The answer of the respormient eleo averred that the
Riteees Ageembly enactec the homestead and exemptions statute
ureuent to previsions of the constitution of Tilinois, and that
petitioner had not brought herself within the terms of auch
“ whereby the homestead estate could be taken or acuuired
, Petitioner, because she Hed fudlec te preceed in the manner
bed by the statute.
The amswer of the respondent referred te the files
n records in the cxuse, which he gsnid would shew that toe
Petitioner had failed to take all steps required by the statute
| ” had failed te comply with ite requirements. That the
ai ea gteps or re uirements are, the enewer did not state,
ut Glleged that the purported sale, upon which the petitioner
22 od, was mli amé veid “because of defects appearing therein.”
‘ Further the anawer of respomdent Hartnett denied the
dsdiction of the court to enforce the claim or demand of the
°
From the order sustaining the demurrer of the petitioner,
Lidem Grace McDonell, to that answer, this appeal is prosecuted.
he abeence of an 2poearance or brief by the respondent appellee,
nia Sourt ie left wholly without information, as we have alresdy
M4, of the rules of Ia uyon which he Felies, and the court very
samcest Siov ans isaoiisikiemessy ylieae sae 2detue tesa: x8RO :
te efielx hedacy est te seddcgersh mi mew. beozotes em dee dl
-tasyeh fete ttet odd bne ~idevess LesemsD ond dokde te qysemots 20
-sved? suslzedui vo comeisiseg evingeb som Sivoo stase ade egal
betessexg egw anliquezs bae atséss Sas@anmed Yo: fgie dose ee geod
| abombiSt elt Yo etdghz te L124 dg to paoletveny selvosizsg,
iatebe? edi of 2geebseas dissea@ine: eds to fee aed BES
_.. @82 Sad Sstvave oaisdeegeogess offs Be-seweun ead =
added aseliouaxs ine bastsemon odd dedoeny ydmeeh
datz bas ,etenkiil te metsucteanes ef? te samlevore: 8 | .
ewe ‘e.amxed ff atdsiw Yieaned sdquord den bat temols tit
neRieyor XG seis? od Rimes odetes Rooteomad ond qdenede ods
‘sonmam sdf mb dowsexg @f vofke? Sua sda oamsasd . somoliides
Z 3 _ aetutase edt yd
eka edd ed seueites, sentengers, oad te sewers ot
| eng feds worts Bier tus ad dotite. + Pamne: ods ak, sh
siutate of3 yd Aoximper counts. ie wast 2 ottet 3 and 08
ext? ssa! .edmseottwpex s€¢ Gee ylqueo ef bel
eiase nt A a
-6-
much regrets the necessity of deciding thie case without each
assistance.
Indeed, the suggestion of the sctitioner and apsellant
that the real purpese ef the opsocition te the writ ef assistance
‘i amd is to enable an iasclvent iswyer is enjoy the petitioner's
‘property, rent free, as long us possible, umder all the cireun-
‘stenees which appear in this record, seems quite plevcible. The
na inite amcwer of the respondent «ould seem to indicate that
theery of his opposition is thet th= waiver of the right of
ad in the trust deed was mice for the benefit ef the helider
the trust deec slome and mot for the benefit of one who there-
ter might become a judgment ereditor. If that is the theory
Which respondemt relies, it is Mly necessary to peint out
in « long line of decizcions by the highest court of this
it Bas been held that such a @efense is unsveiling. (Smith
137 Ill. 68, Herdman vs Cooper, 158 111. 583; Schroeder
140 ill. 155; Gidfielé v. Evlert, 148 lil. 6173 Butler
205 fll. 6053 Sutherland vy. Leng, 273 ilis 309.)
All these cases im substance hold that a judgment ereiter
eemin; frome prier sale dees not simply remeve an encumbrance
7 ' the way of his execution, but that om the contrary a title
at am execution sale upon redemption by a junior judgeent
® relates back te the judgment from whieh the « edemption ig
by and is paresmount te amy title acquired subsequent te the be-
ef the Lien of that judgment; thet by failing te redecg
; he sale uncer the decree of fereGlosure within the time
@ by law, the mortgagor loses all right to redeem, and that
e ‘fails te make such redemption, hia rights are gone.
‘We are mot aware of any statute of the state or
: wm of the courts changing this rules and if such exist,
|
|
mmuso cite os eta cobra votdauned eo gua on eso ene 9m a
gede stentbak of apes Siver sestanqent ‘oatt . qewsae 88 a? !
va dityane iia to swtsir cbs toavah mmbsnowmen eit ae seeds ?
uppfodt off ko Bktened sat x0? cmannundtinintel inngii ad ea
cageeedia abt ah dott ML 9 TOSRI0RF pace a mceoes sAgha
“ge anteq ob snannnan iam, 8! sain snes a
cwabae ‘totam duatgie odd gt amaiolee? 26 90% &
sous sea. Met rie
eH 988, 0A LL FEL i
Lets sped +
7 eP.4 aft 20>
sem) -guifievasye ai some ted ©
“(2 @OE #fih 67s ‘
“gonetpéus si 90use lhe Lia
Pores ese saomabeh & isa! afed fa¥ eee. Es > ae Ea
tom ooh omnes me ktq # ox (gals
seapicaeen® SF svesss tT Uaals # T: eed ee
ekais & YSSTSBO? adi a2 jodtt au sok2uoexe aid 20% ua -—”*
azwambut, xolauy © xa mo biqanesos nous eke no hawooxe | w te
et moksumaoe + ead, dokty sen? seep ods et oad ed sean tor :
aod eit of sanugoudea Detiepes. akete we o3 saomenea
spobet of gutiict vd dais jsauewiet dost o ehaall ot tes
gesoed 28e “go tums hae ols
Ee
eke ods ale srapsthite en ee =
s eBoy S55, a atstght 28, |
eusvAa
™, etese i PEAY, 2e.2ts! ane ee et ides: ou ae ede
sae
_ gtetxoe dove aie b coach
TS ee ht Ss fe ak
we deem it the duty of this lonyer defendant te point out
the sume to the court, In the absence of any assistance
r i the respondent, this court will not embark upon a
' of discovery.
Be: The order is reversed and the cause remanded
r i @irections to the trial court to sustain the demurrer —
petitioner te the anewer.
WITH DIRECTIONS.
SS)
ur dy, '2 des and Johmeton, J., concure
s+ Aare ee
7
%
ee Lae Ae St
=
igen hie 3. BOREL
A. WHETKAR,
Appellant,
v8.
ME X-RAY COMPANY, a Corporation,
nd ACME INTERNATIONAL X-RAY COMPANY, p
| APPSAL FROM CIRCUIT couRT
OF GOGK COURTY.
rooration,
Appellees,
BR, JUSTICE JOMNSTOW VELIVERED THE OPINION OF THE COURT,
This is an action brought by Hiram A. Whitman, the
pe intiff, against the dome Away Company, a corporation, and the
a me International X-Ray Company, a corporation, the defendants, te
re $1500 with interest at five per cent. ae salary alleged to
e due to the plaintiff from the defendants for the last six months
if hits employment by the defendants under a written contract,
- Ting a perled of two years.
The ease wae tried belore « court and « jury. The
returned a verdict against the plaintisf and the court entered
ent on the verdict. From the Judgment the plaintiff has
uted the present appeal.
The contract was entered into oriuinally between the
tiff and the defendant, the Aeme X-Ray Company. The parties
: | control of that sompany subsequently organized the Aeme Interna}
X-Ray Company, which assumed all of the obligations and lia-
ities of the Acme X-Ray Company.
One of the principal grounds on which the plaintirr
for a reversal is that the verdict is manifestly againet the
ef the evidence,
The bill of exceptions does net contain a motion for a
w trial; and counsel for the defendants invoke the rule thet if
e bina of exceptions does not contain a motion for a new trial,
@ question ef the sufficiency of the evidence cannot be reviewed.
aM
ca ii stn iS sett
notterogred a° YHA aHOS ee
“AYHAMHOO TARR qyubTraitan A
ga tae wth :
TAUGO TRVORIO MORE SARI, ,
-YTMNOD MOND TO
Sy a Co saases bP a
Tatoo MRE FO Bode ar CURR. worengot nortant -
ode , tart hd? .A marth yd deigaoud ‘peiten, rus os ‘stat
ans Bite ,Molimxovtes « ‘Tasqned Wahiad ener ody ) tontee ams,
ef ,eonebos teh ond medtareques a ‘ens qusd atak Laxoltarere tak
od hegetle etalon sa .f00o weg evdt fo seotedak dthw o08.£¢
ait mow ate dwak gee tot adawhas'ted oft wot Wrdembady wala on
Seardans nese lew a tobue atuabse teh oft yd. ‘utpon¢0 Laan cy
-8ta9y owt te botres *
eat .ytet & bas Pewee » ero'ted betxs naw seu od?
bersdme ture ost baw ttheaiele oat Santune tothe a bemuton 1
tad Viitaielg edt taomghnt eat sort tokiner oat me Fi
— g Laan taney ond fei
ox? mawted ylienkvive sai bexvdtan sew foordsaos oct .
aeldwadg off ,yiteqecd cahink Hou ot ans hre Tob ous bgp
we kt has useltegiide ear to Lia desyaee Mo Lei seed as
Tiltutele ont dokdw wo sbavoty hixgkeditng tite ti aad hae ont
od? Sontuge YLtao'tionm et goticoy ot Saud WE fentover islents
Souebive edd "to |
| a cot aoliom » olatnee son aeob ubadtenens: to. kine oat
‘th fudt oer oat axoval afnehag'teh. ong wok fewruren one
oho won « uot astiom ao wias nop sou gooh meaner sie 0
PIE ITN ent RANT, RED WER BOLO (ce nti ey ead |
Greenwell v. Hess, 295 Tl]. 430, 462; Whitely v. Rule, 230 111. App.
M18, 220; Briggs v. Page, 222 Il]. App. 223, 224, 226.
. We have exazined the evidence, however, and we are of
the opinion that the verdict of the jury is not manifestly against
the weight of the evidence. “he services which the plaintiff agreed
te perform by the terus of the contract related to taking charge
or the fimeancial operations and matters under the control of the
board of directors of the company; te assisting the company in ite
business negotiations, leases and purchases; te aiding the company
in Taising capital fer conducting and expanding the business; te
advising and gonsulting with the General Manager and Production
Mansger, and te rererting te the board of directora ae needs might
require "in regard to the projects and enterprises of the company; *
‘and te devising ways and means of “meeting same and all extraordinary
- akings.* It ie contended by counsel fer the plaintiff thet
he only defense presented by the defendants on the evidence is that
' P Plaintiff refused to sell ateck, We think that thie contention
r Mot correct. In our view of the evidence there ia aaple evi-
, om behalt of the defendants, independently of the question
| the sale of stock, to suvport the verdict of the Jury. On «6 con-
r ion of all of the evidence we do net feel inclined te disturb
he verdict of the jury. According to the familiar rule, it is the
province of the jury to determine the credibility of the
ses, ond the probabliity or improbability of their testimony;
@ a court of reviewwill not interfere with the verdict unless it
® manifestly againat the weight of the evidence. Hale Blevator Co.
q 201 Till, 131, 146,
Counsel for the plaintiff further contend that the
um t should be reversed because ef prejudicial remarks made by
\e trial judge. |
By Thie objection has not been preserved for review for
of Ca) hain oe
‘ae ine
iy ‘
a) Pea
We Hy
A . SLE O88 Joke vy vie LW s8Ob , 08d J LIT BOT yp v, Ld
LOSS js88 ,E0% seh .O0T RSS one geen tae fOeR
Sa ers io her waveweal ,sonehive end beonleaaxe sven fe ):
ftenlage ¢ltte'tines fon al yxut esd. Xe dodiaew alt tds a ast
hootge Ytitatala ead dodtw doolvren od! .eoathive oi? ty _
aytany yutied ot hatalet saatdaoo outs ‘te ‘gues eet ed mw ry ,
eae to Lottuon edt t8bay axattan heey anaitarene ietousait ong
ath ak youqueo ent yaktalars od sysnquce og ‘te A I ‘te
Chagwes aff? gathia of jaessdoxeg ban, sosasd, ,amobiatioyean aaea
» fF poagaleud of? guihoegxa doe gaitoubnas.ce’t Latiqna, me |
noktoubon’ doe, sepened Latoms 9 ad¢ ot he pak Leeson hen mms, ‘
otigise ehoee ea atetogt ls Yo bieed ott of -gattrocetvot tat orege: ,
Pzymaqee eae to soatvqiadss dae edsotony oxlt of beagom me?
Yoslhy oateee dis boa gees yalttoen® to asasm das ayer: eatadweds 06 2
gant, Yhitetele off vot Losnvee yd bobactmos) oh dio) teae : ase
tact af onoehive ect mo, atuehaeted anit (ye betes med a
mottant age ahd tact Maks 6% yaoode Liem et) Bremer tet: Wake eke Se
otve @fgua af ated? eocodlye edt to weby cao ak . shoaetood
noktasup act ‘te ylsowhasqebal .eteebaeteb add, te Sielinddinis
809.8. 90.0 .~%eh oat Te. toibyoy. on) adtoqare ef) loose to ohae ont
duwHkh oF bonifoad £96% doa eb.aw pemOdive pad. to, tha) Yo: a8
oi 02 22 olen wdLhawt ont of pathtoaods..«gtwloadt Yo fotbwr 4
pede le “ee hlidinate edt calmteted ad yank ese te soabvong
VUitomiteod «heat Ro ytblidedoraml, cs, ye ilidetong, aad hate 0. We
$2 eeetow. dotorew oat -oltbe, ous txotal ton. Lliwepiver te tare ae
590 totave Lh fee. .eenedlte ent) to dulgteweade /tembsgao ht
| ADL eg ABE, the 2Lo%
08d dads. baed mee, Nabirote: Vibsmdalqoads rot Lesimuad Ca ial
ef ohom aitseees Lake thuatesa to ‘ennaood heuxeveried &
Kee RROD SNR a ou bedi bide hy bw sande wie
the reason that the recerd does not show that exceptions were taken
by the defendant to the remarke of the court. Publie Service uv
Za Leatherbee, 511 111. S05, 804. @e have considered the objec-
tion, however, and we think that the remearke would not justify us
im reversing the judguent. he remarks are as follows:
"The Court: I read it [the contracé] twe or three times, I am
‘paowing that a eale of stock was like a sale of everything else.
He was to furnish the braine to finance this concern, whether it
was by stock, or by some other way; that was up to him. How, lat
us see what the efforts were.” Counsel for the plaintiff maintains
that the contract makes no reference to the sale of stock as one of
the duties of the plaintiff; that “had it been the intention of the
“parties to the contract that one of the duties of plaintiff was to
geli stock of the company, certainly the contract would have so
stated in ¢lear an4 tMaxtiguous germe;" that the remarke of the
court "plainly informed the jury that the court construed the eon-
tract to require plaintiff ae one of his obligations under the cone
“tract to sell stock of the new company."
" It is true that the contract does not specifically
“provide that the plaintiff should s@11 stock as one of his duties.
oh, think, however, that on a fair, reasonable interpretation of the
tract one of the duties of the plaintiff was the sale of stock.
- Counsel for the plaintiff further contend that the
“@ourt committed reversible error in giving the following instruction
the request of the defendants:
"The jury are further instructed as a matter of law, that
the wdertaking of the plaintiff in hie contract with the de-
fendant, Aeme X-Ray Company, is an entire undertaking, that is
to say that the plaintiff is required te have performed his
_ entire contract up to the date of the termination thereof, and
_ 4f you find he has ao performed them he is entitled te the ene
_ tire consideration for the last six (6) months thereof, that
_ is to say, Fifteen Huntred Dollars ($1800), but if you find
_ from the evidence that during the last six (6) months of the
term of the plaintiff's contract he failed or refused to fully
Zi i ; \ p
vas Cy fi , ‘ih held r boli Shas, a aah te of “4 - ‘ j i.
er ee oe eee! OES ES em Lote ae mee OMe Perey ey Ry en pe eee eT SUN e mle Cae te ae Are URS any Ve nae eer} TT Ae PE AA DUN ON
eaaled eto eno kiewnne. dats were tend snot hnoeet edd aes
202 solvie® pikvyt avo ode to antenna ott ‘be: — Sect :
Oe h EQ ‘oat hewebienieo evad oW 808 ¢G08 s EET ILS ope nad ,
ver eritaat ‘fon biwew attest adh bast inkl we bate orenians ost
‘ GeweL fet ae 6tn witeiaet delit » Fotos inh ona attexovet n
ath oamaltavede hat Tpeerme wa] oe bao sieved
pale gubityseve to oie « Gilt wav deat Te eine a tot 3 i ”
HL sextdoue jeteones HAY ooanatt oF eatord odd dw dat ‘ee enw .
tei wok see of qo eae fasts Pent todie wimpe et te Boots ye ”
entesaiadt’ Yr bite Le wae tot Leaayed “Jeter arte tte edt tate
to oad we Sooke To efad eut of odtexe ter on woslae doartaoe ost
ont “to notenet al sy need fh ban” fests 7M boule ke ote te worn r
oP eer wibsain te: te! tyes uid ‘te one suet toartdindn eth ra
ow evsis bro “Yoo tiaee eaty Ee eosoD: _aecusigninn’ eit Ye atone
way Ne wibneser ws Fes *yamTey avon bTaaimy bile as toon tat
neo “8H? HeUTtaneo Poo wat Yodtt etn, ond ‘Boats setutinte™: ra :
othe ony tain taolinglico ald lw eae as YibYolely ethhpwr oF ts. 4
) 0M speargaicy: won 9ad Ye dete Stow wh to one
Utaaet ivece fon geoh SeeTsiVe OHI Tadd ours BE OT nek ay nae
OR ‘abut ke OnG Ke Mooke Flew bkwoe Tivnhate weit” ob a
wit ‘Se nebiatexgtoded ekissouane tint as ao cant \xevewor / : waits
Moose to afew ede maneett £9 inte by OMT Yo we Lewd ent Xo Vine’
ertd geek bueducs anceewy We Mtelg one ate Keningaty visto Dh ve
Kotiontett gaiwelLot ond gabvky wt tects »Liletovet: ‘ba fo taunt
RE: Ae \ pegnenhw ted we Ye 8 coupon wal
«eke ae ‘ee, reeten @ ae bedoreden! todvavtt ote eee atm =
~9h ect? cthw toarinow olhd al pr gern tl a Ri. af Aid dt fins hed cf Re
ak tedd ,quiiadrohay waliin om aa sY"titea L oop, Ginn hee.
at Mebacunet et
ald homso'tyeg evad Ot ba
has Rootes aeitenioad so E etaee Ehe
ome oft of balélioe of of most beast g oe M4 bf od ax kt erat
bar ral ,teotsdd addsom (8) xin prs
bolt woe th ded . (00RLO) wae llog berth null tteoe tht :
edd to atdnom (o) xe aay oat pabunh teat fc amon
TALE tt SEENON 38, Pe we 2 aX, pation. 6: OMENS, BM
perform the duties required of him under hie contract, that
then the plaintiff is not entitied to reeover anything even
though it may eppear from the evidence that he performed a
pertion of the duties, and your finding shall be for the de~
fendante, *
Ae the instruction is met ingorperated in the bill of
@xceptions, the plaintiff is net entitled te have the error ase
signed on the instruction reviewed on appeal. (The People v.
Belson, 320 111. 270, 280, 261; Greenwell v. Hesa, 298 Til. 489,
462, 463). However, we do not think that the instruetion is
erroneous.
The grounds of the objection of counsel for the .
Plaintiff to the instruction are stated in their brief as fol-
lows:
“Here the court instruets the jury that if the plaintiff
failed or refused to fully perform the duties required of hin
under his contract, then the plaintiff is net entitled to ree
Gover anything, even theugh it may appear from the evidenee
that he performed a portion of the dutiee, and your findings
shall be for the defendants. Here the court in substance and
effect instructs the fury to find the lesues for the defeniante
if he failed te sell stock,"
We think that the plaintiff was obligated to perform
‘@1l of the duties required of him wider the contract.
; In our view, the instruction does not direct the jury
fn Substance and effect to find the issues fer the defendants if
ae
believe that the plaintiff failed to sell steck. We are of
opinion that the sale of stock wae one of the duties of the
tiff contemplated by the contraet, but the instruction does
ot specifically refer to that question, nor is there anything in
. instruction from which reaconably it could be inferred that
finding of the jury should be dependent om that cuestion
: one. The instruction merely refers generally te the duties
aired of the plaintiff under the contract.
Per the reasons stated the judgment of the court is
AFFIRMED,
ily, P. J., amd Matehett, J,, soneur.
neve gakctyne vevacst of beLtitaa ton ah Th. :
a bawre'tveg of sede egeebive end wert't tneqqe Cant r f
meh et tot sd Liede galont? swey baw, aeleeh end ze
fast ,¢oexdooo eis veobaw wht to hertiepst peiene auld erro
te tei silt ak hetatoqrovat Jom at no tboustent oe. oh
ata xorte esis oved at hos itae sou et visdatelg aus ie asa
! yap’ ll Ay
pa ) “sdaoaas an bowalves aol dourtdent Py a0
| . 003 ated ee 220i .¥ Lommpend 18, obs ore ut oa ”
: er makaouetant signe tant ainsi? tom oo ow xDveroH
|
| r oss ut tow: suse 0 te aoitootde ost ‘te showers outt ”
: ~£0' as ‘wind tho? mk bogase om | aotgowsdant + alt 0 Pit
' Wee: RAVAN Bi be Fh on mh) Rs " fey prs ® & a
SR Cried Hae
Titatete outs th ast? wat ons eg ee tue ‘edt ae m i.
.) wha te Gatiopes aebtuh off emotueg yifet of bella .
meet OF Beli ivae ten ab Yrdeute Ler od nods ,toatimos wit shar (
i porehtive oft west sesqge yom ob sawots weve te" ‘
| apaihast ewoy dus ,aeliwh ond toe welttog a =a,
haw eonatedus ak dueoe edd etek .dnahae bed nar ae
efuabnn ved ond Mints sennnd est thank" yet seit ‘stowxteuh
|
|
| " feode ikow. of re
web gwd Sogaqgtidd ame petinabite edt date Aahdd oh. . ,
steattece edt woh ale Ye dot hepet cabin pal bial k
Ktwh edd Soerth ton arch aottewetand odd, wede wo ai ie
d admcbee' tem avd cot eenend oct det? ot toette one a
| Ye ett oW stisote Liew of kethet Whi atate ext eid ovedsed ys !
| wae “to alto eit to one sow teats Le phew eat fads ; | : a :
aeoh autiyordemt od? dof ,seandaoe salt yh bedetgaataoe Wiles ai
(us gablt gon windd ob tom pdelteoup ¢add od co'ten Ci teod! ‘
fadt borwint of bineo of Yidauenmen tly dete sco ae
meiteawp dat wo aneherend ad ipesacurhaioiel amt
webinh ats oo videreney axates ‘yamween. as : ee
Eee savior theming cated sn Ray pi
} a: Lista asta! i) Becca tach ete: ‘gnotien? edt xgt ond dime |
i ah. RAG Ye ivy)
DEY “nt si ee been winner
ise aloe ad oA incre ae TAL ire ti
$81 - 31513
INES I, TINSLEY )
q Appellee,
APPEAL FROM CIRCUIT COURT
vs.
r OF COOK COURTY.
W. 0. DICE,
Appellant.
PAA TAIESL
BR, JUSTICE JOMNSTON DELIVERED THE OPINION OF THE COURT. .
This is an appeal by ¥, 0. Dice, the defendant, from a
Judgment on the verdict of a jury in the sum of $3500 in favor ef
Inez I, Tinsley, the plaintiff, in an action brought by the plain-
tiff to recover damages for injuries sustained in a collision be-
tween an automobile, in which the plaintiff war riding as a suest,
and amotor truck owned by the defendant and driven by a chauffeur
of the defendant.
o The undisputed evidence shows that the accident oc~
in the afternoon of May 2, 1924, near the intersection of
street and Parnell avenue, public thoroughfares in the City
rT ion, and Parnell avenue runs in a northerly and southerly
ion; that the plaintiff was riding in an automobile by
ek was going west on the north side of 7ist street; that there
. alley which runs in a nertherly and southerly direction about
, tb weet of the intersection of lst street end Parnell ave-
; that about 100 feet west of the alley there is 2 railroad
duet which crosses 7lst street; that the collision occurred at
; that the automobile in which the plaintiff was riding
Ddeing driven at the rate of about 22 miles an hour at the time
we collision; that the motor truck was going at the rate of 3
Oe ee ne
A a a i OS ee Oe Ne ee arm,
: .TPRMIOD AOD 10
7 uish ree hes $ ' Atri Rn, me 2 af . bia
pee ie eid - mete i a 7 ae \ x ties } y i) ak ' “4
MECOLiCt pe: NS ot ee
aa
Sah
Bae oes, dy wie ase @, (hae
sa no dishes te wnt wert 20 we w ieviews me a ake
te sore’, ak pore Fo, mart, eslt ah wt ¢
‘g
a tetbroy, Lad ins
te ngttooetodst oud “taess ae te pa ae ses il ,
Wis oe “ 4 4 ‘ a
, ‘@ ‘oO ads ‘ab toto itiiercontd ‘wb tetra nares ite
ulred new Bite ‘ulse toad oul ad anerd sontee Fase fads te
"Yh tdi ‘bee ‘etitaaleoin add wad” ‘dunce ‘chee bow
ed ethdometed ax ak Qathts aa UTEs ake te eee aMdy
“eltdomotua wits ‘hatte potidowoasa odd ‘Ye sonia sath
“rodon'sad Fails ied watts ‘ont staoe x 2
ta beemiooe att “a si ‘sy fal
as ei ih ie
4 aties an hour; that os the motor truck turned south to go into the
alley to deliver some nerohancise the collision oecurred; that at
the time the motor truck turned to go into the alley the driver of
the motor truck gave no warning either by sounding his horn or ex«
tending his arm; that the plaintiff was injured in the collision;
that four of her ribs were fractured about 2 to 4 inches from the
sp! @, and that one of the four riba was fractured in twe places;
that the plaintiff was black and blue from her knee to her shoulder;
sat her back and entire right aide were blask from bruises; that
e remained in s hospital for one week; that she was then taken in
M ambulance to her home, where she remained in bed until May 30,
44; that the discoloration on her hip and baek did not disanpnear
duly, 1924; that she suffered great paim; that she was attended
Physician for 5 or 6 weeks after she left the hospital; that
g that time her back was bandaged; that she still has pain in
er Tight side; that she has had pain for ever a year, especially
, the weatnor is bad; that when she Joes housework her back be-
3 te hurt and she has te stop and thet this condition continued
| D to the time of the trial, mamely, Mereh 4, 1926; thet prior te
@ accident che hed no trouble with her back or right side; thet the
ge ts of her spine are sore and if they are strained end re-
4 rai ed they may get worse instead of better.
: There is some conflict between the testimony of the -
: ; fleur of the automobile and the chauffeur of the motor truck
the facts surrounding the immediate happening of the collie
The chauffeur of the eutomobile testified on behalf of
mtiff that as he passed from uncer the viaduct he noticed
tor truck; that the metor truek was about at Parnell avenue;
® motor truck continued to go west and that he continued to
st; that he was watching the alley for trucks that uicht come
we
eae oak “3 ot sitsgoa beaws sound toto, oft ae test tet te @. 7
te tact jhowkcecw netut ikaw olte te koueite rou dant ‘evE oh ot “2 .
te tegich edt yolia okt asub eg o2 hostd Aguas tose 9:
“xo 16 tot eld golbavee Yd tedtio gatenew on oveR Nowe tos:
smetaditos ane ct hecetak aav wrhimtaty asd Sedt pee wit on.
| eas mort nest md & of & dxoda poudentt Otew adit ted to wot @
jagoety, owt at borezesut esw adhytyet oft ty aL all -
| rob tenn “east oe serct ‘eal hyn oul ae dont saw Wiftphae ot t
a nested seule enw oi ‘taste oaw ene ‘aot | Ant Reo # a Fes
i 108 von Ets bed ph ho mba ‘ote eta tr omod wot of sons 7
maeoqneth tox his tend he hd ued ite mart ' aids ee
beuattaos mode thao w Ratt Sat baw ate ot 1 aet ot Cas we
of toitg gad peser «> do watt aktome tata oes 3 bo sank :
| est} Sort venta data he xe dood ted aahe afdyors on pat
i est te wont to0e as svewied ( tot naoe 5 non 02. ot
Hi veo Raa
| she wes rasom add By) ‘ue Mcesi0 ott Sais el priereal oat
gk eee
: mb Lfon at to aathon gad ota! donmk oss gnih bows omrase ier
! Ey A
| boots ou ‘on torhety ont one sot a a
| reunove Eten te foods aay stort totem oth dwet? pao
4 Pa he! iy RS na ae segs ahs
i od bountsaos od sactt hae teow o3 ot heats noo ries’ 03 om
’ Pia ail Sid pio oif bau ob item
+ yaldotew one
enon sigtm tart? eeinad ‘tor ‘gotta ead
nt of there: that as he cot up to ich 2 feet of the alley he
Rotioed the moter truck eut right im south; that he was about
ul feet from the motor truck; that he wanted te co over to the
court to get away from the motor trnek; that he got about s half a
“foot from the south eurb, but did net get on the curb bevore the
“mecident happened; that he did met blew his horn er give any
“warning: that he did not put his brakes on, “ae I figured he
j chauffeur of the motor truck) was going te let me through;*
he thought he could cet past the metor truck as it wes going
Wily; that he thought the chauffeur of the motor truck wae
iting for him to go throweh; that the moter truck aid not stop
or decrease its speed; that if the motor truck had continued at the
| @peed 14 would not have touched him; that the moter truck
et Wave increased its speed.
The chauffeur of the wetor truck testified on behalf ¢
f the fefendant thet when he first sar the automobile in which the
tiff was riding it wae about 120 to 130 feet frow the scone of
eceldent, and that he was shout & feet from the alley; that
he next saw the automobile it wae sbout 75 or 100 feet away;
he did not look at the automobile again witil 1t was about
12 feet away: that between the time the sautomebile was about 78
se away he did not see it until it »ae right up to him; that
thought it would stop and paid no further attention to it, amd
t kent right on going; that at the time of the collision he was
bs lutely at a stendetili."
Ome of the principal grounds urged for revergal ef
1 Judgment by counsel for the defendant is that the verdict is
the weight of the evidence; that “the recor4 eompletely
te disclose any act of meglicence on the port of the defende
Tn our opinion there ie ayple evidence to sustain a
me de Pownt tueo Kes Bours roto eld Eh tests phoecge eth o
% ‘tiated xe hokt ident tewst todas odd To .ewewnds o8% 6 ei
edt dafdw mk oLitowdae edd wan text? ost ooste att trahony 3 \¢ é
‘to saoon off aodt toet.0lL.eF OSL tueds ,anw th anthte.say, Tres
\ od elie ot to towd & tune od gw top: tt en. Sastt. emt, he te
yates pemed tadd qaltene at cote duo mest, gotom ent hee kie
‘A att wt. sev9 09.99 ho duew ae tevtt pdoust Aotam pelt. meat aoe,
& had « teode toy od todd qhowet cofom edt mott yews, tom eh dae
edt: weatted. dius odd .ag tog toa hth tod day dgisoe, ads mort doe
win ovis We ates Bld wold tom fth of Jedd, ghonpaead daadloa
od See y Exe” ye aedend ots dug goa bth ed dads 4s hs ‘a
"* palaces om toL of palog sew, Taw Totem ody. be wean, a8
‘guhoy eer Ph-er south totam 900 aueq toy disco of tAsaodt, ad $8
Rar hoard wotom oad te mwe't'tbywede oft, Aap at 9K sect sthwel
qote fom hibo sowed totom edt gadt jstawortt og of wht rot wmbthe
valor tt tedom off dat pakd hedowedoved Yom bileow th te “es
. ahoner wet bane sat a ° te
feds PYe Le oMd mort 4007.8 tuodea now octane howe... Pome
yawn test OOf t0.8T tuode pay th efisemedye on? ae. dzom oat bie
‘tugda caw th Lhd me thege eftidemetas yea te.aleod ton babe .
BY gvade naw elideantys ed? omhs ond neowded dant, pews: leah
tadt pods of qu tdyta eer itt) Livan themes gem bik ot ewe
bre It ot noltactte tedtue't omy hleqobae, qote bLwom tt tfysost
atv ot naeeifon odd Roms ont te \tedt: raHtop) ato, take
Cidiey eh Maa Give Bale erin a shale 9 Sh oS Liddabaate a to
°% Levtovet wot hagry ehauexg tagtoatxe ony to os i
ek doktrow auth Serie) at tashesteb wait sot. Ansanoo eo tromabet
opfete tomes Brenet oft” dete paouob ire. galt Ts titg.tew a: Zr
“hee teh oat De taeg pan a-nation ae
finding that the defendant was guilty of negligence. In eonsider-
ing this question it must be borne in mind that the motor truck
ef the defendant wae driving west on the north side of Vist street
and that the chauffeur of the automobile in which the plaintiff was
riding was driving east on the south side of 7lst street; in ether
words, the two vehicles were approaching each other from opposite
@irections. In this situation it was clearly « question of fact
for the jury whether the defendant's chauffeur, in starting to enter
the alley, was negligent in turning south directly across the path
ef the eutomobile in which the plaintiff was riding without either
"sounding his horn, extending his arm, or otherwise giving warning.
Furthermore, it was also a question of fact for the jury whether,
in the circumstances shown by the evidence, it was negligence on
the part of the defendant's chauffeur te start to turn into the
@lley, instead of remaining on the north side of let street until
the automobile in which the plaintifr was riding had passed,
On consideration of all of the evidence we are of the
“opinion that the verdict of the jury is not manifestly against the
“Weight of the evidence.
Counsel for the defendant further contends that on the
isputed evidence the plaintiff was guilty of contributory negli-
The evidence showe that the plaintiff did nothing
ively to prevent the collision; that she remained passive. The
intiff testified as follews: “I knew the driver Mat and felt
5 we under hie direction of the car and I relied upen him, *
. The test as to what constitutes contributory negli-
jones as a matter of law is defined in the case of Kelly v. Chicago
: » 283 TL1, 640, as follows (p. 645):
"AS a general proposition, the question of contributory
*Megligence is one of fact for the j under all the facts and
stances shown by the evidence, ev. Chic a
Co., 289 Ill. 476) but wases oecasionally arise in which
“tohianes al sswaoyiigen ‘te Wilivg sow danbanteb at dad’ aubbat
doped xodes sult sand bake at eated of teem £t moltaowp ‘abst ‘sal
tonrse sefY lo aide diven add ag dar gatvith: egw taabas'toh ont
eae trituialg wat do hate aL olidemetum edt to aye Thiedy oat $068 ‘haa
testo mi ptewtts Jedt be obi cidwon oct oo Seno gateicth: ‘enw gates
stinoyge mortk seuite sioae yakivsoidds Ot9w aodolsewvows aad » vebxeN
goat to moltsoup « vliasic saw 3h molianthe wide at sonektoon
ao of gaitvess sk ,qwettveds a! duabag'teb edd wpsttecin get eal: ‘
iieq ost aeoiws “Steosth wos yalarwe ah daogilgen enw yee kbe | si
tousie duoitiw gubbie sav Thlinislg sa) siokdw 92 eLidomodse ae
sgalmcaw giivia selwiadse to ,ate ald galbooixe yesed ahd)
wer vas oad tek deat le woideoxo «2 oxia oaw Oh),
nO eouegiivan sow tL ,sanebive edd yd amocde. soanetouuotte ott
edt ada mut of disde of wetness al icabao teh ode Do da0q
——-fiktow goonts fos) Ye hie ston od 20 palatauen te dnotead ,xo
ar shosang had gathts maw Wiktabals oid si Rad ook okisomss
| eit Lepte ew soaehive ot to Lfa ‘te, no lietotiaaos AR 4 |
ent ganioga yLtaetinam tea as viet odd to tothe ont fade bat Bagh
edt mo gadt aboetaqe aosiaut fanbue%ebh sdt r0) featwed -
«lingam yrotudiataco to ydilvg sew Satine ly add smn
Wal watson os
aiaoia bbs Tibialedg es tadd exode,, eocebl ve, oat
ont .eviagag pealenst oie jaa . paohatison aid, dmoveca raite
" $fet bug duM sovEd ond woot I” rawoLtor ae hettiseet Wiubtmkad
™ mtd moga bol los % paw. tan ast Xo padsoong aid cab i
wLiges utosuddutnos sodut ideaog, deosive as as tned. pa, r cahie ht
once lG.¥ 4ssek to seny oid ak beatted at ma Xe cuttin ane so
(089 4) wmolson ae .Ob8 th P85. afi ox
i etotadin ace to soltéoup oad noLdteoqong 0% ‘s aa bie
- ban nena edt Le xebaws ip Maer wh To ape ‘te one af sonegt fas
MiB ay CL ce cay rE oe ae . it, 9 MD senso inn yo Ase §
a person is so careless or his conduct so violative of all
fational standards of conduct aprlicatle to persons in a like
situation that the court ean say, 28 & matter of law, that no
rational person would have acted as ne aid ent render Judgment
for the defendant,"
In our view we cannot say as a matter of law that no
Pational person would have acted as the plaintiff aid.
We are of the opinion that the questions whether the
Plaintiff should have been se watehtul and vigilant that she could
have discovered the danger of the collision in time to warm the
chauffeur and prevent the collision; or whether she was justified
in remaining gunaive and relying on the chauffeur, are questions
of fact for the jury.
Counsel fer the defendant further contends that the
@ourt erred in giving the follewing instruction om behalf of the
Plaintiff;
"I? you believe from the evidence that wy witness in this
case has knowingly, wilfully, intentionally or falsely testifted
as to ony matter or thing material to the issues in thie case,
then you are at liberty to entirely reject the testimony of
such witness except in so far av it is corroborated, if it is
corroborated, by other credible evidence, or by faets arid
cireumstances appearing in evidence,"
The objection ef counsel for the defendant to the ine
Struction is that the word "er" after the word "intentionally"
“gave the jury free reign to regard or disregard the evidence of
‘SB witness ac they might see fit." Lt is evident that the word
“or" was inadvertently inserted after the word “intentionally*
@nd thet the instruction should have read, “If you believe from
the evidence that any witness in this case haa knowingly, wilfully
oF intentionally, falsely testified,” eta.
,
*
_ Hon, We would not impute such lack of intelligence to the jury
as to presume that they assumed wider the instruction that they had
SB right to “regard or disregard" the testimony of witnesses who
We think that the jury were not misled by the inatrue-
believed had testified “knowingly, wilfully, intentionally"
to the facts. Such an interpretation of the instruction would
fifa te evitelol¢y oa touhaoo atd xo emeletas £) aa 0%
“eat tf a al endeted of eleotiogn foghmos to iivases, » fenottex
soot claaiaaliail in pear ae a i"
ry Li * taahue teh, odd tot
on teas wel to tetiac @ te yan dorase ow weiy sgo af . eet hae
bth VMigalelg aft aa betes evad bivow moaueg J |
ers tostt ose enolsasrp edd add aataiqe eds, te, ote aw.
bisos ose desist ona Ltety has igtvodgew os seed syast btvoda, 2 ttaied
, eas ate ot sald al mate dilos and? te teganb scit bererconth»
he tts tant eam asia sesditesiw 0 jaolelifoo edd saoverq hus 2 |
_SHoltsoup ota ,Wweliuvato ea% me gaiylos ‘Enrtam. ovienag ssinioe
‘a 9 eWeark, 9gie Md nares ‘
eda tase “ abaed noe xonitin', tnebustted ont tot feared
sniielt t Wi
esis to ‘VLeiled xo Roiso wa ta ad giiwetlot est activ ta pee ieee ae
aiid of eeamtiv yn sacs oonoblive at were ove, sed
be Ptites? yloatst to yllam ifdetnt ylivttiw ,
,oaeno aldt mi aeweel wn? of faliedaa ge A 6 ok 4.) ae
Yo ysidultast ed? dootet vierigne ot vireo? “HON
i i Yt ,besetodartes ot df ap xat os ak i bw ue
a n nner ted xe" “sHontebtve aldibexe i Sano pies
*,epaebive mt pin noo aooustenwyonts
wok ontt ot tuahsie tee edt tot Loenros ‘to aelioakse OAR 6 nw: i
“yLiasoltassal” biew odt tod%e “x0” brow ott tact ot mo kfosrnt by
‘to sonehive oft fisgetaibh to fine of aglex ert uml anne a ‘
een pps tent dnobtve ai gt "ak ooe diigin yous as pas :
"Tilasotiapdat” biew exit x9fte hodxecuk yfiaeduovbeat waw —
, Mert eveklod wor “i” sheet eyed, bivosia aoivoutsagt edt Sacit, be
hiv kaw sVigsiwend eos grav adeld as segadiw yaa sect, Be b tym, me sid
| _12te, "be ltivee? yleetes Milano hiner,
~ourtant pad a poppe som. otew, xxuk, elt dant, katie OW). F
| Wet ed? of seasyiitesat ro, Yost dope esuqat ssdinibihel ne fa
bast cous tend sottouztest ong sep eur Payne Wf
ose eongont tw ko werratiet, ate .
enchant aici ‘
geal AE
6
have been absurd.
Gounsel fer the defendant further contends that the
gourt erred in giving the following instruction on besald of the
plaintiff:
"You are instructed that if you believe from the preponder-
ance of the avidence, under the instructions of the eourt, that
the plaintiff was in the exercise of ordinsry care Ter her own
gafety at and just prier to the eecurrenee of the aeeident in
question, and if yeu further believe from the preponderance of
the evidence, wider the inetructions of the Court, that the
defendant ¥. 0. Dice's servant was guilty of any negligence
Glleged in the plaintiff's declaration, or sny count thereof,
which caused or proximately contributed te enuse the accident
and alleged injuries te the plaintiff, then your verdict should
be for the plaintiff even though you might also believe from the
evidence that the driver of the automobile in which plaintiff
Was riding at the time and place in question was also guilty
of some negligence proximately contributing to bring about the
accident and injuries to the plaintiff, *
it is maintained by counsel for the defendant that
this inetruction “asawnes that the plaintiff was in the exercise of
Ordinary care, whereas there is no evidence in the record that
Plaintiff dia exercise ordinary eare;* that further it assumes
that the plaintiff "by reason of the fact that she was riding in an
automobile driven by another entirely relieved plaintiff from exer-
eising ordinary care for her own safety.*
‘ We think that the instruetion obviously is not reason-
omy susceptible of the constructions which counsel for the de-
A
fondant places on it.
. It is further objected by counsel for the defendant
the court erred in instructing the jury that in estinating the
laintirr's damages they had the right to take into consideration
future suffering and loss of health if any;" and “her loss of
and inability to work, if any;" and that “there is ne evi-
in this record as to either of these propositions,"
a We think that there is sufficient evidence to justify
, ne instruction. Furthermore, the qualifying phrase “ir any” is
ed in the instruction. Again, the first paragraph of the in-
Bh) Po)
is as follows; “The jury are instructeé4 that if from a
a we P css oa thle
a URS SS lei 8 le Ee 4
» 38 bite | {
oa Wade” ‘ehae 09 sedstyt sabastos ‘abe eek Kenmod:
‘4 ty bat Ny
ond ‘to ‘Linco an ankteorcteus untwolLot exit, antirhy mt paves.
ome ete. Ot. evra
-tebtogetq ag mot? owetiod wey ti surlt bederttemh exe weXt) oh
test ,tunce off ‘to enoltowrtent edt tobex ,eonebive sad to
wo Kel Le wtHo GROLibie ko satovexs ext Sl waw Tittalelg odt ,
at tuphiooe oad ‘to sometiyese edt of t0lxg cont bas ta Sistas
| te senerobao cht aft woxt evebiod versa? yey te bee’
| odd tedd ,¢uy0D off To amoltourtamt osft pe toon bh
, arose lived yas to vi llega saw sosrtes afoole .o 4. Ww ;
,ioetent taves yne to ,ttotiataloeh MEN te BY odd mk bea 7 a
dnoftoee oat vous ot hedudtienoe yLogmmixete ‘xy
| héers foiftey woy medy ,VMitialaly oft af fe ise at Be;
odd mov ovo klod vale gata wey sgkor neve’
DRE Semlteey ate cael fan
| idem ey ete ho
: ° gqet Popo ved Bilt ver Loa moo we bocitadmtnit we pe Or ow
i is oa korexe psd of new thi¢niatg edt tadt somaen® wolsebk eat £
eas | ta Bropss ene Bt eousbive olf wd w4pe hentaigy tng sx
ee goinrena’ oe ouayt sath young: ytatbio oo teres are ae ,
si et! auth ix’ ane sig ae ton eng ‘to sonst eo vragen
~tex9 most, TEs state hove tiv’ Yietktoa to Mit ohn Me ney’
nti , eek ek ee cunukinals 4 aa
~fonsene doi af ytnwo betty io tonsa me due Yeas anatt ow ’ met techn
* be ba cet” ceniived anal anny. ting Yo otdrsqdoame rf
vain ve Gk oT EE ont 18 sul dy lal
eet oil “cor ‘resus xd enn ous ar ltt na
ond Gikttonkies ad vets veal’ old “uitevtteay | nt Bexte om esc)
gelvexobtanos Uiad exe? ob ditgtd bat ‘how ote — i ‘
to eeol ted” bas *pyme TF fb tort Yo’ Walon Waa! Wil
“Wee wn wh Wiel yale’ bale Wyigree FR sed WH
* nao theoqedic wmoike th itt he” diab bibobe what
writent oo geld ‘ie wear Si Slt! 8 ad
PRY oy Mek » a
il an he Ps
t
preponderance of the evidence and under the instructions of the
Court, you find the defendant guilty, as alleged in the declara-
. tion, then you will be required to determine the ameunt of plaine
*iff's demaces, if any, so far as such damages as are alleged in
her declaration are established by a preponderance of the avidence,
af you find they are so established."
Counsel for the defendant further contends that the
court committed reversible error in refusing to give the following
instruction on behalf of the defendant:
"If you believe, from all the evidence in this case, that
the motor vehicle in which the plaintiff was riding at the time
in question wae being driven on a public street in the City ef
Chicago, in violation of the statutes of Illinois regulating
the traffic of vehicles upon public streets and highways; and
if you further believe from all of the evidence, that the
plaintiff knew, or in the exercise of ordinary care on her part
couké have known of such violation of the law by the driver of
the vehicle she was riding in a sufficient length of time bee
fore the collision here in question to have cautioned the
@river of the automobile plaintiff was riding in not to violate
said statutes, or to have prevented said driver from violating
said statutes; then the Court instructs you that so driving sald
vehicle in which plaintiff was riding contrary to said statutes,
Taises the presumption that the plaintiff and the driver ef the
Moter vehicle in which plaintiff was riding, at the time and
_ Place in question, were, as a matter of law, guilty of negli-
gence; and if you further believe from the evidence that such
_ Megiigence was the proximate cause of the injury to the plain-
tiff, without which the injury would not have happened, then
you should find the defendant net guilty."
We think that the instruction is objectionable for
"several reasons. It assumes as a matter of law that there was a
Riuty on the part of the plaintiff te caution the chauffeur not to
“Violate the statute or to prevent the chauffeur from violating
the statute, whereas the question of the duty of the plaintirr in
these Tespects was one of fact. Furthermore, the instruct sion
does mot inform the jury what facts must exist and what speed must
| } exceeded in order to create a prima facie case of negligence;
2 does it tell the jury under what conditions the prima facie
a i@ of negligence may be rebutted by the plaintiff. In the ine
‘Struction numbered 15, given ot the request of the defendant, the
were properly instructed in regard to the statute in question;
AP _eotenene ‘mh etutose.
i ce ee
dad te enoldoutteni aft tebay bas gonehtve ext te poaeres 16
waxeisad acid ah Segetial se eo Lhury. tnehae ‘tad ll batt Oy, re 2
tiale Le drurome ey oabirga teh ot bariepes od thy MON, nese am ta
ost bene iia eX 2 Begeaah dowe as tat of , Yee te .sopenab, a! 3
,oomebivs ad? ta goartehaegerq e ys bededidatao Educa Bo! sateloob s
ye
| " bodiitdadae od ote yout batt hi?
ot! nied shu tao0 nostra daabas'tes ous pred fenag9o |
gatwotser oul oly oe patente ak texte 0 Ld twvevo" besttinoe otis:
pa YG va ie rae ay ay: ay a
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dnisae paar ene and powabibed uly bee mox't vevebhid woe ray
emis of? fa pnipit wew Trivnlaig one do biw at wfodsevr totem
‘to VSR) ead af Yeouta ohidug = ne merinh gated ese ae!
: il creticadn anes a2 bla Sra ot te eriaon hale ‘al
28 agissite 9 Rege we is
oy fait ,eomdtva act to Llw aott loved fed “paddas’ Ray
ttae nod wo ete ytectbto te wetotexe odd ot to , wont aan
te teviah eat vo wel edt Le aol¢aleiy dowe Yo sweat ovad iy
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gif Bemoltene svext of soltvesyp af greet mobet( Doo we ere?
eteloty ot fon at gaihts enw Tri¢siole eLitquotus edt to tovic
paltatels moxT seviah blso bodoe rene ever ot re utete hb
bliss aaivixh o4 Jedt voy etowxtant stwod edt mecdd jeodutats bie
Wesutates biew of Ytetdetos yatbiy wow Trivatete dedie af @L9
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pig aft boron gasi sven gon bivew. qu hak sat aio lowodwedd he)
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zat ‘eidanoiteotso a noldourtans ould aus ‘sin dett ov
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oF Fon tesa D Taw sho eat pativas oF Wigste le oid ‘to tag
galdsfoay neat aye vedo ait inovena os x9 atuteta ok one ,
‘a rbsude Le esid to eth oud te to LY @Bup ous asotede per re
ny woh donstant elt ,romrouigau toa 0 uae cov asoscart anes
toxm heegn tote Bs fade osm neon fae ea oe Sere ~“s
, steere ot tobto ak beds
aN me got a ie
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erty me tg is i er ee
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STN TPa AP ee
Wah, at
and in the instruction numbered 18, given at the request of the
defendant, the jury were instructed to find the defendant not
guilty if “the sole cause of the injury to the plaintsfr* was
@ue to the negligent operation of the automobile in which the
Plaintiff was riding,
Counsel for the defendant further contends thet the
court erred in refusing to give the rellowing instruction which
the defendant requested be given:
"The court instructs the jury that the burdeu is upon the
plaintiff te show by a preponderance of the evidence that she
was in the exercise of ordinery care just before and et the
time of the alleged accident, And the Court instructs you that
she is not relieved from that duty because she was riding in an
automobile, but the law is that where a parsenger in an autonoe
bile hase an opportunity to learn of danger and void it, it is
her duty te warn the driver of the automobile of such denger."
We think the inetruetion le erroneous in that it ase
umes as a matter of law that it is the duty of a passenger in an
Butomebdile, who knows of a danger, te warn the chauffeur of the
danger, The duty of a passenger in thie respect depends upon the
facts in the particular case. It may be that in some circumstances
is Would be wmvise for the passenger to interfere with the chauf-
four at all, as the chauffeur might be confused or excited by such
rference; in other cireums tances it might be reasonable and
er for a passenger to warn the chauffeur of a danger. In our
Minion the question is not one of law but of fact. Hepner vy.
k, No. 30529, opinion of the 3rd Division of the Appellate
tT, not yet reported,
it is objected by counsel for the defendant that the
rdict is excessive. We think that it is not necessary to dis-
" the evidence relating to thie question, We have stated the
mee in this regard, and we are of the opinion that it is suf-
tlent to suppert the verdict.
i For the reasons stated the Judgment is affirmed,
AFFIRMED.
rely, P. J., and Matchett, J., cencur,
be! te LO Ae eek ti
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:
400 - 31552 :
*<BARVSY L. CAVENDER and VILLIAN
» comm, Cepartners es CAVENDER
& KAISER }
Appellants,
APPRAL FROM MUNICIPAL COURT
vs.
OF CHICAGO.
JULIUS BECKER,
Appellee. )
a
>)
MR. JUSTICE JOHNSTON DELIVERED THE CPINION OF THY COURT,
This is an appeal by Marvey L. Cavender and VYilliam &.
Kaiser, attorneys md copartners, the plaintiffs, from an order in a
preceeding under section 21 of the Numicipal Court act, vacating a
Qudgment in the sum of $600.02 entered in favor of the plaintiffs
in am action brought by the plaintiffs against Julius Becker, the
defendant, te recover attorney's fees for services alleged te have
eee rendered to the defendants by the plaintiffs.
a. In the oricinal action for attomey's fees the defend-
b filed an affidavit of merits sworn toe by the defendant, denying
the itemized statement of services in the plaintiffe' statement
of @laim alleged to have been rendered to the defendant vas cor-
» and denying that the plaintiffs expanded the court costa and
. set forth in the plaintiffs' statement of claim, Thereafter
“defendant filed an amended affidavit ef merits sworn te by his
attorney, admitting that the itemized statement of court costs
Moneys expended for the plaintiffe, as set forth in plaintiffs’
mt of claim, was correct except as te four itens.
The case was reached for trial on September 25, 1925,
Md was several times continued until November 6, 1925, when the
having failed to appear, judgment in the eum of $600 was
on the verdict of a jury against the defendant.
On December 5, 1925, the defendant filed a motion te
the Judgement, and in suppert of the motion the defendant
PMID arora wom TARA
OOADTHO @O
Hie
2
La
rsa bes #N LEAS
. mnictee fs wohawrat) ae corsa 46 sases, ia ‘i se Sl
a ad toore | ne ne wehitseinsg ou canes me ‘hie a
Pere ee aes Ce ee ee Se en NA ke De
ad
wee: aan Suntinetos: eae ‘ov + parewnie’ idee while 0 s ib
bas ‘ateve: Ixvon ete bebwenes fabiiperiicek bi railt "a ibate
atone teen tw tiomagn se Sinton 32 was taut
faYitiniate mt deter fon an wtntita te out te
filed an affidavit in which, omong other things, he alleged that he
Wee net advised that the case was set for trial on Noverber 6,
1925; that his attorney had agreed with the plaintiffs in September
to have the case set for trial at "a later date,” but that the
attorney failed to notify him ef the date; that his attorney “did
mot appear in court at any later date but threw his case,”
Om December 28, 1925, the court entered an order vacate
ing the judgment. On January 5, 1926, the case was upon the trial
@all and was continved until February 16, 19°6, for the reagon that
the defendant was not ready for trial, On February 16, 1926, the
@ase was continued to March 2, 1926, and on Maroh 2, 1926, it was
gontinued woitil Bareh 25, 1996, The defendant was present in eourt
on January 5, 1926, February 16, 1926, and Vareh 7, 1926, and Mareh
26, 1976. On Maren 2, 1926, the defendant 414 net appear in court
and on motion of the plaintiffs the case was continued until April
9, 1926. On April 9, 1926, the defendant having failed to appear, a
Judgment in the sum of $609.02 was entered againet the defendant
OB & verdict of the jury.
On July 14, 1926, the defendant filed a petition under
‘Section 21 of the Municpal Court act, being the present proceeding,
to Vacate the judgment entered on April 9, 1946.
ve The petition which was sworn to by the defendant is
” follows: ©
4 “Row come the petitioner, Julius Becker, defendant in the
above entitled cause, and prays to thie Honoratle Court that the
udgment entered herein on April 9, against him in the sum of
i 4.06 be vacated, set aside and held for naught, for the reasons
hereinafter stated.
i Your petitioner shows that the plaintiffs herein had prior
te the institution of thie action, acted and represented this
“Petitioner as his attorneys, and as the relation of attorney and
@lient existed, the plaintiff collected large eume of money at
Various times, for whigh no accounting has ever been given by
the plaintiff, or h is petitioner (defendant); that while
_ the cause, herein, vas pending, your petitioner, who, was by’ circum-
_ stances compelled to seek employment elsewhere for his hivelihoed,
+ and being unable to attend court, or employ counsel to 4o so,
_Sgreed with the plaintiff in adjustment of this cause, snd not
_ 8 & waiver of any claime for ameunt collected by the plaintiff
ost dat? benotie oot ,apatdd tonto gem ytotdw ak shvab vee ae boll
At) re disor olf ig Lals3 tot toe saw be ed fete tds bantvbe | oat”
tedwedqed m2 attidatalg oft cdte neetiga "hil! qereesee ek fi an
ond texts dud *,atah toint a” te tekee ae? gee ease sit
| hib* qoares9e aba tad? jetak odd to kd ytiten of te flat bi
"ease aid wert ted efeb coded ae Isl tues ME eeqae f
fase EHO awe dovetae Pe09 oe emed (BS cvdesedl mit ,
kodes aks nogy set eane oud ROL 2 Ytevoat od .tnoughet add 9
tans noswer ont xot ,OuRL OL Yraurdol LRtaw bewaldod BAW bela
end aees iat Uta seo’ #0 vtakes tet Be Ssransie? tou ane tanban'teb
9734s
eaw #2 28er 2 forte 0 bow eee Rg ova of beuattace
eS AT EH. sy
“race at groeere anw tashis tos ont .880r ae. serait fhe aw Dountaa ,
onal bam B80 e fern daw 1a8er AY; eae oases. 58 tment
iy, ES ;
sures at mangas # om bth {nabs teh ant sper tt sori, 00. eds, pe
BF * #4
Eixgh htm eucts s08 aver o8a9 ens etitentarg. out »” molto ba
8 mo qae og doxia’ amived fowbun'teh ante 108 Or 2 Angk #0 8
tne bine keh outs tontone bores, ay 80-0008 te hail oat ad oe
wins emt, oat 2 * tater
webaw ‘nels ited a beset snabas te eas aeeet ee rat ae wy
Se tM | f 4 hige toe i
“ Babboaoere fmoas%9, ons gated 1208, fxd tego sar out A mo
cs ie Bat DB thaee ane vy
kA
¢
ace Be +
ve To.
exit a duadintes eoieel tae qo he hieg, ot
ont gent Pied aaron abit oF ayer” Bow be
te awe edt ot atd tenisga ,¢ Litqa sa nieead | eres
anova gat rot ,osywed tet bio baw phtes: veo” ‘ nha &,
tolre And shoved BttRente ly soe gaat evote TOTO
eldt badoereteet baw Seton , molten eli? to ae!
dete “wate dea To og Lo odd. en hig aynorted xe ad:
ph eM = saaye ® bento eed wiles TrLI mtate
oLisor decid r(dushanteb Yt tenad
-muotio ‘ydsrewoodw ,t9 nel ehiteg +
ssoodifevis wid cot eassiweete 2
198 ob of Lesivoo yotyme to,
fou hte ,omume wise Yo samara
Webv abate ang ie madeerielh
ad wis;
1b An Re hiyainn'
, Ly PAB Nyy SEN Poe ides }
ey é i ae
Re) re 5 if YY, th a ae
PRA kN Gin me a a A al
and his attorneys, he, thie petitioner, gave in full settlement,
for the amount claimed in this law suit, a certain nots dated
July 26, 1925, for the eum of $250.00, signed by Zarnest
Masnarits, and received from the plaintiff a certain ace
knowiedguent in words as fellows:
‘Received of Tuliun Becker the nete (286) of Sarnest
Mesnarits dated July #28, 1924, This nete is taken to
investicate ite value and determine whether or net it wtll
be taken in settlement of sage of Cavender et al. vs.
Becker, an? to be returned on demand if no settlement is
made, Charles Gyongyosi not te be held Lisble. .P.Fubman, *
*and reliving on the promise of the plaintiff that auch note
would be in full settlement of the claim sued upon and ree
eeiving no word of any nature from the plaintiff te the cone
trary, this petitioner believed that the enid auit had been
aiemicsed, but afterwards learned that in vieletion of the
agreenent, and the promise of the plaintifYy, they on April 9
procured a Judgment, which fudement is unjust, unfair, and
was a deception upon the court end this petitioner, the de-
fendant.
"ie, therefore, at tais, the earlbest opportunity, res-
peetfully prays that the Judgment entered in said cause, be
vacated and set aside.“
Over the plaintiffs ebjection te the sufficieney of
the petition, the court held that the petition wae auffielent,
The plaintiffs thereupon filed twe affidavits traversing certain
allegations in the petition. One of the affidavits, which was
made by Herbert P. ¥yhrmann, an attormey in the office of the
plaintiffs, is as follows;
"That prior to January 5, 1926, Julius Becker telephoned
said affiant and requested that the above ontitled cause be
@ontinued and stated that he had reeently had a fire snd that
he 414 not have time to prepare fer trial, that certain ree-
ords were destreyed or they were in such shape that they were
mot available fow evidence, and that at the requeet of said
a thia affiant continued said ease until February 16,
926.
"Said affiant further states that wren the case was next
upon the trial call thie affiant appeared in court in anawer
te said esll, that Becker was present and requested a continu.
ance of ssid case, that the same was continued by the court
until March 2, 1926,
"Said affidgvit further states that en Mareh 2nd, when
the case was next upon the trial eall, this affiant appeared
in court, that Becker was present, and again requested that
the case be continued, that he had ne attorney and was not
ise prepared for trial, that seid Becker suggested » settlement
. to thie affiant end agreed to submit a certain note to this
¥ affiant for his exawinatien and consideration in connestion
With said settlement, thet the case was continued until
March 16, 1926.
\ "Said affidavit further states that when the ease was upan
the trial call om Mareh 16th, this affiant again appeared in
ecurt, that Becker was aleo present, that Becker was not pre-
pared fer trial and requested a continuance, that at said time
he again talked with said affiant about settling, that he
, fos Le doe fist at evaa ,romelilieg olds joe eyo te ‘aad bite teri
hosed aton miasase « .tiya. wel abs ad rin tomeue elf sot
aa xd mgt Sap agen 2 _ por hw poker OS ely ©
26 foe a salote ect sext dorleoes iixensat
a) tawollet Ge izes’ a a 4 3 ee
deorret to (O8l) ofon olf tecsed apiivt % te RR
of moxat ot o¢om als? .s8er , ee tit bed ey tereieeie eve 2
LLiv 4h. tom. to, tovldodw onurp ded ‘a elev a rye témoval.
P sv ,fe to tr ‘to ¢aao to tneie (73en arg neat » ‘eer
al teeomigcoe on amb to. hearetet of of ban ,tedpas
* cocmigst GH woidekt bled ed of ten is S notte ne bial
eton down dant TYiidaleio eds Io eefoorte elt moo aa His
ox bas aoqe bows miale afd to’ gaeta'lttee ak ed biwow
aitae ott of Ditintale ed? ath. exvten to £tow hy,
need hat ghue hhee on) Sard bow kfod oaitites wk
joy oe Ne woldeleaiy ok ded hem sel. phunwte we Evo b *
@ his tay a pay viola pod gy om , Poa ee
ade ton ,2autsy al gaemp ter sive a
“sad oe tion Hog wiit ban axneo ent Weunaress. :
“SOT colin tkdees sesdiine sae oveKt td a” ina are 3
ad. gerag Aies af, Range 3 sie tig ast, alt file sed ae |
: Bits at { bit,
to yous be lYtwe ast of indwiad ‘erntinte ly eat oi! M eit
daolotYive saw woly tied ont tedt btod Yue with: Pert
aledxes aataraverrs wtiwhtria ovd ‘belty aequéuwiit evLeile te: *
'eaw atodtiw yedivebl Its eds “Lo 'end monttieg ont AE edo temded
eas Yo goite ) watt aed Woarad da ate mentqiietelay | i frossoX es ‘bi |
sawg hfe éx ab ys
tds iie’s gorge! activi ,ocek .2 vrawmet of sofa fe
ae onao Rene h ie evoda oct tat ora one I .
‘Pact how oult o Bad yltmeget ban on fake hedete Sou :
«oot nistroo tad? sale? sot @teqete of omit svad phe ay bak
anew you? tadt ccna coed ni etew proves, “<0 Bagh ape: hie
bies 19 teevpet oct te fedd das , "Jantras alae ses ee
,ed cease Sita nas bisa preteen ‘ona
funn aay saan. “nate cemcior Sepals andete serdar? tnaltte bad?”
movese of fivao at beyecqqu daniYte aida f Loiat
wiligon # beieoupet hoa inbeetg ange
srw ED . ast ut. Bawats aos eae A ou
male | hae ‘dete Ho dade abtere sereue”
. arnae caw feeltta elds ,ifeo eee
fest hedeevges lagen Sas, oi
fom ene hie yaarel te ox beat xf,
Ey ot ego ab, 3 8 ae
adel yng ak
alu aad
I) Vs OME Pte a a) 7, er Ry Oe a SOP CT Sa ee e
felivere’ to said affiant a note dated July 25, 1924, and asked
thie affiant to ascertain whether or not plaintiffs vould accept
gaid note in full settlement of their claim, that sald Beoker
stated he would not guarantees the payment of sald note and that
he 414 not want the endorser held, that thie affiant teld said
Becker that he would take said mote and, if Becker weuld give
to said affiant satisfactory information as to the respensi-
bility and ee te whether or not said note could be collected,
that he would take the same up with the plaintiffs, that sat
said time this affient gave io said Becker a receipt fer said
note, conditioned sae above, that said Becker stated that he
Would couwuwmicate with affiant by telephone on the fellowing day,
that this affiant was not called by said Becker at any time, ond
that said Hecker made mo effort, in so far as this affiant is
advised, to comaunicate with this affiant either by telephone,
mail or any other means whatsecever.
"Seid affiant further states that he did not at any time
agree with eaid Becker that eaid note would be accepted in full
Settlement of the claim then pending er that he would cause said
suit to be dismiesed or thet the plaintiif would not take any
further or other stevs in connection with said case.
"Said affiant further estates that when the case was next
upon the trial ¢all, March 28th, he again appeared in court, that
Beoker did not appear, that no pereon appeared for “im, that
erg affiant of his own motion centinued eaid case wntil April
at.
"Affiant further states that when the oricinal judgment was
Vacated in this ease in the month of December, 1925, this affi-+
ant vas praesent in the court room and that the Jutes, whe vacated
aid judgment, stated to said Becker that the plaintiffe were
+ @mtitled to have the case tried, that he weuld set it for Janue
ary Ss and that Becker muet be preonred fer Grial.
Affiant further states that when he talked with said
Becker with reference to the proposed settlement this affiant
Stated to said Beeker that if said cage was eetiled, the plein-
tiffs would give to Becker a release of 11 claims to date, and
that the plaintiffs would require from Becker and pareares
Schrieber a release of any and all claims that they might have
against the plaintiffs, that if this litigation was ta be ended
against the defendant, ali differences sust be settled against
the plaintiffs.”
The second affidavit, which was made by Harvey L.
*
=~
; nder, ene of the olaintifYs, is as follewa:
"That the above entitled ease was first reached fer trial
the Municipal court on September 25, 1925; that same was con-
ued of several occasions until November 6, 1925; then a judge
Ment wae entered against the defendant; that said Beeker did not
@ppear in court on any occasion when said ease was wpon the trial
All between September 2hth and Nevember 6th; that on the Sth
| @ay of December, 192%, said Becker made a motion to vacate said
- =gtdement and that the court vacated the sume during the month of
De ember, 1925, and set the case for trial on January 5, 1926;
eS, t said court at said time stated to Beeker that he must be
_ Prepared for trial and dispose of said case.
i. “Said affiant further states that he never entered inte any
“bargain with Julius Beeker, nor 4i4 any person on behalf of the
a ntifT agree with sald Julius Seeker, at any time, to settie
i Gase or dismiss the sane; that am execution has been issued
=
——_—
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tiled Ake Susie ,whety “tert ‘to doomed ewe! Liet af rons.
fadi bas stoa bier ‘to saemysy end ss dnateuyg ton biivow en. pet,
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by h
We
ERP owe Se Te Se ee Ue ene Fann ee eee
upon the judgment entered April @, 1926, snd veturned by the
Dailiff of the Hunicipal court wholly unsatisfied; that to the
beet of the knowledge, information ond belief of this affiant,
eailA Becker recites outside of the City of Chicago, in the
Village ef Merton Grove; that ho has no telephone; that this
affiant has filed in the Superior court ef Cook sounty, TLid-
nois, a ereditors' bill against esid Julius Becker and others;
that on about the 27th dey of May, A. D, 1926, this affiant
wrote sald Becker a letter, addressed to him at Horton drove,
advising him of the filing of @a44 creditors’ bill.*
mn
After hearing the matter on the petition sand affida.e
yits alone, without taking any oral or documentary evidence, the
‘gourt entered an order, whies is the one involved on the praesent
appeal, vacating the jJutgment of April @, 1026.
i There is no dispute between counsel for the defendant
—" counsel for the plaintiffe as to the law applicable to the ease.
‘The only question is whether on the petition and affidavits the
the judgment.
in our opinion the court erred in vacating the judg-
The gist of the petition of the defendant ig that the plaine
agreed to settle their action anvetunt the deforndeant and age
ited the note referred to in the petition in full settlement of
Ivir claim against the defendant. The conclusion, hewever, that
he plaintiffs accepted the note in full settlement of their claim
Le negatived by the receipt, which ie eet out in the petition sand
whi oh the petition slloges wan given for the note. According to
ni receipt, the note was not definitely accepted, but war merely
BD conditionally for investigation, In the affidavit of ¥uhraann
. 2 Dbebalf of the plaimtifre it is averred that no agreenent was
D L with the defendant that the note would be accepted in full pay-
e %; that when the receipt for the note was given, the defendant
tat ed that he would communicate with Fuhrmann the next day, but
hat the defendant failed to do so.
| Gn a consideration of the petition and the affidavits
>, a St eS eee
=
q
; more _ sie maddie: ‘ith (aaen. a@ iiega Pei ne dooms ath a ~
| ont od tauls thee leeane yisote tooo tagtetonl orth eRe 7
ene wheis “ie Tetled hae aeitang ter: ,e, bet oak wilt Leodes
one 22 ogee MO he yRlo elt ode whtedeo nehinwrm : baw
kis duns rectqniys fat om ead ont sax pavord sorte te eye SLn¥
wf Lik yydmmon eed Te diydn nekde emt mt onhbe OL? wet tok te
etedho. brs tooo agtiv’ Siew demtage “LLEd Metes Mo ten os
daek Vie abt YORel GA. pie to ows APT ent hieda my .
saver so dead ts widcet feresthbe ptetteioa tedeell fb tae
Am patted * eephhtie ts Ataw bed pak eee | wath “he mb pitta
MR os ety TK bi Sate a eo
s woh VR bats aaleniog one ial i S00 ent yard sorta a ide
Wy es hy
pore ssauinilh Sate recite eae me sfiswe ‘qi euheat: Pareto
PR ek a
fesaiee em oul ae bevsovad oa sets a seiheew. bo fi ‘Boro dne |
4 Ss ay Rl abt aii yy a
ves ¥e sete te tiem 9 at heh
eh A mes a * *
— eat jalsaoey ak sures srwos od: soknaye swooad
‘ ree iy %
wndale outs isis a anhna’ten ous 29. nolytang, ous x0 p ta 3 rf
ay
te damn t8300 stu ak mote toea ons ak ‘et meant’ i saa
a Yoteoe 82 Hels RR
taht ad «Ho tevfonos ont “stasbasttes oat bast |
iste Shoo ind Same ieview cee ad even nts ‘hols
5 FUE
hae! wottiven ot at ovo tea at Vio hate ,oqtooee sued? oe kde mM |
od gnibroesa © Ciel out ter new ty enw erent ee ne sot
YLoIeN saw Jad ,hosqeoDH YLOTIAiep Sant war atom Sie \ «Wil
soarreinneted tw Wheahive ott ake bres ie tery ai age Mt ap
© Pathe he OR eee
aw soevorye a teas borne vil wa Ph wTrLsiioty out ™ Neenit
eae ya ek ahah Pope ote ie dergeh ats eget
ign kaa at dorqsooe og ntasow ‘avon ee tere ge he
%y Fae pe aa RRR NS pay, iis asl tae WY fe ¥
taba’ eit siewieg: ase eden oat Ot dq lowe! ehh besponat ory
‘ Was eR MM ig’ Kc ee SO Aun Bie oF TR eA
a awe von eee: -annenar Ag baw oteotnumres tbie
oe ee: Wee ch a5 Rae, oP i eke
Pcvarragoot i
9p WSR if 1 anys
4 mi, doh ee Oe, Lee SAR ee RN he Ul
ir Mg tebe aD Se Se eel ds PRO SOL, ide vag ead
7 ne lement of their eliaim and did not otherwise agres te settle
eir olsim,
y Yor the reasons stated the order ef the court vacating
ye judgment of April 9, 1926, ic reversed,
REVERBED,
rely, ?. J., and Matchett, J., concur.
\
2
ate: semonhie 7 a sous
Hide Nedag Hana) Od Hee Me Dy rhe ha
pate 3 Poa Rats it ie Ds
He
Me lal Lacy
GaN
me. ky a piel: ahi
ag,
416 - 31548
MORRIS J. WISHNEVSEY,
« Appellee,
| APPEAL FROM CIRCULT COURT
ve.
6. ¥. WESDRICK, fr., W. A.
. and PATL A, DRATZ,
Copartners Doing Business os
: ICK STUL CO.,
Appelisnts.
OF GOOR COUNTY.
She F ed el tar Na Aa
ER, JUSTICE JOHNSTON DELIVERED THE OPINION OF THR COURT.
Thie is an appeal by ¢. FP, Wendriek, Jr., and @, A,
‘Peters, copartners doing business sa Yendrick Steel Company, and
Paul A. Bratz, the defendanta from a judgment in favor of Borrds
we. Wishneveky, the pluintiff, im an action brought by the plain-
«barr Oh & promissory ncte which tae plaintiff claims to own as an
imnecent purchaser.
# the ease wat tried before the court and a jury. At
wt :
the Glose of sil the evidence the court inetrueted the Jury per
..:, to find the issues for the plaintiff and to assess
"the plaintiff's damages at the sum of $2921.81.
The note is as follows:
"2780.00 Janmary 23rd, 1925.
30 4ays after date we promise te pay to the order of
ational Salvage Co., Harry lL, Hidler, Trenton, #. J. Trenty-
Seven Hundred Fifty Dellars at First Kational Bank of Harvey,
Tllineis, Value received with interest at the rate of no per
@ent per annum.
; ; Yendrick Steel Company,
= By 0, FF. Wendrieck, Jr.
; ES en,
_ The endorsements on the back of the note are as follows:
"Paul A. Dratz
National Salvage Ce.,
Harry L. Midler, Pree,"
* The evidence shows that the National Salvage Co.
Was a corporation,
The only question te be determined is whether the
“Botional Salvage Co. Harry L. Midler, Pres." is
erListea
THO GO nino MOR Ma
i ie dahl f
ee SS Mk
atmulioaga
.YTauOS waa
gl eg eh srremae
BEART WA Mad
Lidice at ata Cake ee dae en Pehemret Pe! po
om GO ar a | pS ES CF AERTS: ROA
TS ae a ae
2900 MAT NO MOTHIGO RAT CRARVIANT NOTEMNOT. OTTOUL , aM
A oF ban ,.%0 , ao ichas¥ .,'t “0 ye Laer an ‘at alst
bas . ye quod teese daiahae® an suanieud yaloh ‘Tact teqes exot
aictel Yo seve? at ag me bast 8 Ol sSashneleh oct ,atenk A 4
sahete oat yd dxawotd apbgee oe at ,Vtttalole edd volarealas r
he ta mwo oF puntate viidatatg os dele ston Ytone tnotg 2 a9 Tt
stenadoug &
‘
fh eat & btw dcs09 exis oxoted betes jaws gee9 oat | lite
“194 vast out besovnt and Puwsos ods someh tvs ena ila 16 smote
REDSTH od haw Tittalere galt ‘aot aoues t oad Beck's . ot .
18 £8089 Xo mus ont ts nogount at vite
fewottor s ns at ton ot
ORL , bee yremnet =< on
to sebre eat ot vag oF o2 mone ane otah ate nc ih
«giteaw? .L . ,wodaert , re ihle ft youll eo
sCevral te Semi faneided terit te exe i fot a
aq ot to efat edd te deoxotal Atte borings vee
angined Lact dobthas¥ ie
x oithas’ ,f .d: “et
2
the indorsement of the corporation und also the indorsement of
Harry L. Midler individually, or whether the indorsement is that
of the corporation only.
The 4efendsent contends that the indersement is inat
of the corporation oniy. The pisuintiff eentends that the indorse-
nent is the indorsement of the corporation and alee the indorae-
ment of Harry LL. Milier individusliy; that the added term “Pres.”
hel the name of Harry L. Bidier is merely deseriptio personae.
; The authorities on the question in controversy are
‘onflicting. We have not been referred te any decision of the
Swrese Geurt of the State of TLlineies whieh is directly decisive
” the question, but in auppert of their contentions beth counsel
the plaintiff and course) for the defendant have cited from
‘Tlidneis Appellate Courte decisions which are not harmonious,
Slee have cited fren other etates suthorities that annowee
ieting rules. The Illinois eases relied unen by counsel Yor
Plaintiff are as follows: See) ow vp, Ainselig Glase Ge., 36
App, 412, 414; Duffner vy. Ball, 86 TLl. App, 519, 521; Right
] Syke Surlesaue Co Loulavilile 7, & St. L. Consolidated R.R.
as 40 Tll. App. 49, 50; Ghadeey v. MeGreery, 27 111, 283, 254;
Pike, 162 Tl1. 241, 246.
fn our opinion the Supreme Court cases of Chadsey y.
Sy Supra, and Hately vy. Pike, supra, do not sustain the
mtention ef counsel for the plaintiff, In the case of Chadsey
4 o evreery & note was tinde payable to Janes @. MeUreery, treasurer
| the B. %. & A. BR. Co., and the court held that it was mot a
i of the company but of Metreery individually; and that the
r , Treasurer was deseriptio personae. If the note had been made
a le to the company snd to NeCreery and the indorsement had been
ned in the name of the company with the name of James G. Hoe
Y, Treas., following the name of the company, the case then
have been analogous to the case at bar. In the ease of
A 7s
‘Sa
PMR IN ec! Wann asta
Ph Same
ey By tet
am : \ ie ni
Tor Cae ald
te suomeatobad eft cate how felteategrtoa edz ‘ke sooweutobad
fat 1 inowsarobat ost resitecie to Titowh Syke wo Lb2i ot
| eine not texogz09 oats
fads 2 sdammetobat ot tari? wf hee das tnabge ton ont
fans ia aes
~ootobak edt gatt wbustaoe Witahs le ont “ne tte, so Heacoqeie
awetonat sat ow Le bac molternrton edt ‘te Susmoetobak ont 6
* .ae7tt" axet hebbs eda tarsi? iwfLeubivtbal we Like ok era ‘te
+ PASOB ISS abtatioesb yiotom af te {ha ool SS actad Xe onan a ma wt
exe URtevetincs nk agltecrp edt ao etd dositue eae
env ‘te nolelosb wets os ‘bertetos mood tom avast ot Heb:
Wiersth elsoor is ef dele aboatttt to esnd® ony te sxe8
ea ntos ddod enolinetnos ‘ghee to deocenre at sod metsweup: onan
‘owt boots evad taanme ted’ oi 20° ieonyee hab” Tiiteinte edt
aay o beveiete it fon ete me tety amoln tows wfewed ve tioqgh ‘atoati tt '
Suiaremee Fess eels ineitwn ante ta xen sgt: Reete oved o
Tor Kwak o. edn hetiot geand etowhcrt itt - eeu snheed
— mee Peabriay2 ‘
| wet ‘pase Ore nek Wicd ae , | i hl
“Gall petabsioens? oi. . thd sk aft te
| bait a BOR, LAR. axe rss
sccm ‘xo sonao aduged naar mit in ca thy an ers
| aah shavers don ob e = ah big “5 mart 4 ay
Weebly “te sana odd. ak “| Welaniate ads 10% Leeonon t0 ote a
enwana st o Vtee TDi 2 soot of eldayag ohn AE dion a.
a fon enw ¢h tadd blot tnoe edd bas oe ig i a
eid sacs bas iXtkoubivtbat cuore, Yo tud Yangnon oad ee
oham aeod beat ston wae IT “Amores. Sidelines ase comaent }
nod dad banmeexena) ot han. yieeo ot ban yaagaoe ot at:
~oit »0 neat ‘to nua oald ag tw henson ent “a ae |
nodt wean oid vangase ‘paid w om ote amiwortor y-anort «at ;
Wid YM aus 28 hice Maistre kote amen Rel? Pe) ey |
te onan » ont at tet te onan oct of swoyolana used re met
St a ad ee, im * onan Mirena Pr Set
Hately v. Pike a note in whieh the Exposition Depot and Hotel Gom-
pany promised to pay to the order of “Adolph Pike President"
$20,000, was signed *The Exposition Depet end Hotei Commany,
Adolph Pike President, Pli Brandt Secretary," and wae inderoad
as follows: “Pay to the erder of Walter ©. Hately. Adolph Pike
Prosi dent, Yor value received, I hereby guarantee the payment of
‘Mas note and interest at maturity, or any time thereafter." The
court hela that the note was payable te Adolph Pike individually;
that the indorsexent was his individual indorsement; ant that the
word "President" was deseriptio personae. It is obvious that the
facts in the ease at bar are entirely dissimilar, It may be stated
in discussing the question in the case of Hately v. Pike, supra,
tne court quoted the following language from Daniel on Negotiable
struments (vol. I, see. 16, 4th ed.) which tends te guppert the
nts tion of counsel for the defendant;
i "Where a note is payable to a corporation by its corverate
‘Bame, ani is then endorsed by an suthorized agent or official,
with the suffix of his ministerial posttion, it will be regarded
that he acts for hie principal who iw diselosed on the paper as
_ the payee, and whe therefore is the only person who can transfer
the legal title.*
The Appellate Court cage of Lumley v. Kinsella Glass Go.
Fa, Supports the contention of counsel for the phaintiff. In
le Appellate Seurt ease of Dufiner v. Ball, supra, the question in
itroversy was not decided. “he court expressly aaid (p. 52h):
ks "Counsel for appelinnt and counsel fer apvellees, in their
Tespective briefs and arguments filed in this court, have dise
useed the question whether the note described in haee verba in
Special count, is the promise of the corporation alone or of
z + and the appeliees jointly; but we do mot feel called upon te
ease? question, because it is net invelved in the atate of
In the Appellate Court case of Night Hawke Burlesque Co.
want Llie, Evansville & & naglidated N.A.Ge, any
ij ueation in controversy related to the following due bill;
le, Ky., Apl. 20, 1990. Due S. J. Gates, agt. L.%.& St. L.
-noW 1686H ban toge@ motrecgem ead HoRiw att stor ® 2s
®tueblewxd oak sty Leha® Xe Thee ‘od ot wen vy :
CA einted Latou fries toqed no ttle oqxtt ext* hemghe ase at
‘Bewrobau aw ove * Wutereed: thnaed kate sfaob tenet oxi
ontd ig Sona ctedar .0 x0thaW te eb ‘edt as we :
a oie hoe
E te 5 3
“te deeonngng afd voenwxaiy wore t .bevieon eg lay i simi
omy ae
oat * susd'teeaost oan we 10 et ttstam ts tanned bap aten 7
feltewbtythat ‘oun datos of oLdeysg enw oton oad dass itea ’
wad sat! bate itaemonzohat Loublyibat end ony tuomeatobath ons
Pe hk ao
out tadt avolyse @1 -emonies oitaizessd gen "du taore"
; BY, i pe, Pty aS Gas
setae ad wa 7 a itabends extine ous md ts snag edt at
Ny
Ait sBAAT yx loda te anes ous at aotveaup eat yateauon tt mt t
sidal toaer mo bo hoot sox enous f paves te’. ont beveup
ee ee ee
‘ouia sronena 0 aise? fp ate (be ane aw en i. fo) man
Afuabae teh, ost 07 Eee woe to
| ae
esexor oti wd gender ‘ of pyre on ‘ak eton * steer
LtYoute: a tngy: Hae ae od Dewtedis medio haw!
bebtaas ‘od ae ag | ibis ial ok enue ae diet
Y, Peg Re ben alee & ode acy *
arid ag pil aos eae ott as orotors 29 ate San
Pa ee A et “footie ca 0
495£0 elionnds a Lous. ke geen dtund stalleqad oat.”
a .Ythdetady sot aot Leansog to oobtagemte ed?
ai avltecwp 90) paaaue «fied oN ee Ne mee tenet ae
7(f88 «@) bhaa yeas teem, draped, matt _ shabhooh to
tied? of ,goeLlacqe oxet Lanuutga.: bite Sou Shaged ta'% «. :
Pega Ho nin ~tewem alfay ab boll af com ts bus steixnd ert
bodivoaeh stom sq) cteddedw aaldeoup &
it eo ery 4 Moitaxssazves edo Io ea ote “eat al Fauop ta
ot sony boting feet dat oh or ded yyttasel ews
to sfate acs ak dovioval von al dis herria Molreoup dautt
ve ny aided a
a icen
ee a
, ee in Se
by Wain Haha hi Cy he | we & Hee aN viae j f
P to aaea., e400 Pune at 098 03
“gaia Sanh, sneak oaks : nian pad aoe ah om
cok 9K, BoZort Zook. steer sBotad, vhas PS nO Oh 18 £06 40 et ms si
‘
Gen. R. RK, the sum of Forty-one doliars and 60-100 fer transpere-
‘tation 16 persone Louisville te Bvaneville, ind., and 337.61 in
ash, Total, $79.20. J. iL. Cain, benager Night Uavke Company. *
he court said (p. 5): “This due bill, of itselr, furuiehed ne
@vidence entitling the plaintiff to reeever frou the defendant.
the emount mentioned therein was payable to 0. J. Gates, not te
“the Yrallroad company, and the addition ‘agt. L. &. 4&4 St. L. Gon,
BR, R,' ie a mere deseriptico personae’ not changing the legal
effect. This due bill wae signed by ‘J. L. Cain, Manager Wight
rt Company,’ not by defendant, or by one shown to have lawful
rity to execute the instrument on its behalf," It is ap-
4 that this cage is not in point.
Further in suppert of their centention cgounsel for
“She plaintiff sited the following lewa cames: Heffner vy. Brownell,
7 ) Towa, S91; MeGandless v. Belle Plaine Canning Co., 78 Ia. 162;
ay
hers Dubuaue Mattress Co., 87 Inu. 346. In the case of
effner v Brownell, a prowissery note war signed "Independence
ie. Go. v. B. I. Brownell, Pres."; and the court said that it was
@4 that the company was bound; snd held that as there was
| te indicate that Brownell was president cf the corporation,
) was individually liable. In the ease of Katthews & So, y,
i me Mattress Co, and Jehn Kapp, it was similarly held that Kapp
as individually liable on « note signed, “Dubuque Mattress Ce.
in Kapp Pt,” In the ease of Hegnd)
HUES H. Weasell and A, J. Hartman, a promicsory note was
gned "Belle Plaine Canning Co. H. Wessel] Secretary, A. J.
r President;* and the court held, following Heffner y,
L, that Yessell and Hartmen were individually liable,
wn be Seen that these Iowa decisions support the contention
sel for ‘the plaintiff, But in the subsequent case of
1 n - oe & a BEG Kae 1riner / C¢ 8 OT) | P ® bay Th gti: nk
<
~Tagenar? tot OOL-08 bar want fon pheonexet, Yo sare nee Moh
" Wd ite,
oe 40.786 Saw, » abit ' 12 LL Leper’ of o£fhve tod enowteg ee
* Yate para’) etven Ri ity att exact mend ak t ; 20808 aver
ont hedte Lowe's (uses t te yf be oub arene (08 a) btaw reo
Renee “h SO asa
-tasbneteb oxid pene xovaoo °3 Wibsntate out Baila tens
of $a s80)a0 soul PY 3 > ftdavng oan mses Neaoliana
ages acct "yathyatavts ton "enmoexeg obsedza00k @ orem # at & |
pie
digi topacsait , ated woh 7 x hougte eal se oub onset
DUD Siw CoD Yam ee
terms ovad o awe ono ws ‘te «$tinba0 top we tou Md a
PRS A Ke ¥ RY Bah
oe ot F *. hosted est ne “tromyrdead le véuoore ee yt
Fl mig wake “he Dy
ark ee statog ak tea et oond ohie tant
we r CaN ie ipa
wo iwanyoe “apt jandneo shone to drwaque ot sonar
Vy ua wrk Ee
koa
i 32) yy
ae freee avo guwofter one bed to Ritd,
‘te uap ould a ORE wet 6 + +228 as vost
pone biiscenal™ bo cigte ea bo | eres Menem Btewaie a3
am ab dasit bias Prue walt haw 4", sorte 4 Lito cower ar os 400)
aaw ened ee tame fox hoe rhawod enw ee eee te ‘
oY 100. attest to te seme ont ol sehde hh cela tk
Gen Hane HLow Glantiate aew an.
ee a ey cemetery: ccounet et ee pers 7, teren.
aX. xea) thay gittwas ‘Lott Died fraroe wait baw “jy tnob lw
SL lanka geet Riek het wee adideat i cou ats
© Bokinednes. ext atocuie. soolahoad amdt nia
te nao Youpemtea bid — |
196 Ia. 64, a contrary rule war announced, ond the onse of
Heffner v. BSrowneii Was expressly over-ruled, the court saying
(p. 75)
"We are reluctant to over-rule «a prineivle established
by our prior decisions or te express our disapsroeval of the
result reached in any given case. We are, however, se firmly
and abidingly convinced that the conclusion arrived at in
ROUT, What we tact decline te fellow then as prececente.*
In the following Tllineis Appellate Court deciations
it has been held as to notes the signatures to which were in a
Similar form to the indorsement of the note in the case at bar,
that prima facie such notes were corsorate obligations only:
Bhompeon vy. Hesselman, 132 111, App, 257, 259, 2962; Derby vy.
Gustafson, 151 111. App, 291, 285; Northe rn Goal ¢ ‘
fyrreil, 133 Ill. App. 472, 478; F
Til. App. 390. To the same effeet are the following cases from
other states: Reeve v. National Bank of Glassbero, 54.3. J. Law,
208, 211; Draper Go., 87 Mass.
(s Allen) 334, 339; joagh, 150 Maes. 140; Latham y.
Houston Flour Milis, 68 Texas, 127, 129.
5 In our opinion the indeoraement in the case at bar was
nrina facie the indorsement of the Wational Salvage Company only
one not the individual indorsement of Harry L.. Midler, for the
“eason that the name “National Galvage Co." and the name "Harry
&, Widler," with the abbreviation "Pres,* following the name
“Hationsl Salvege Co." imports prima facie the relation ef prinei-
ond agent; and inasmuch as every cornerate act must be done by
atural person, Midler must be deemed prima facie to have exe
7 ed the indorsement as agent for the National Salvage Company.
: 2, 54.5. J. Law, 208, 222,
Vurthermore, if, as counsel for the plaintiff maine
Min, the indorsement constitutes an indersenent of both the
‘te sean ant hae vpnaemnsaion oew efee yhetdion a bo «al ,
egalyaa dees ott a he Livrt~ters psa ‘saw
(ee
tetelideter efelositg s eleteteve of Inatonior ete eto)
add ‘to fSevroteqeeib two anorgee of he emoletoeh solve xe
ytawth om ,revewodl ,ota 88 .weao aovig yne Alcbedesed sf 4
ak ta bovine apiaeloaoe adit sadt teh pp tang hed ban
aeons tedsie wet a baw , OTshia: TEAR
" kine boot sa mods woite: hs oe
ORO: RES AU ae
exotalosh Pawod ete sieqga atonttst salwostot ome as
a at ete do but og sets tanyte ons aeton of a sox yeas
"rete suotiagiide sterertes. or8w neton Mowe sia aaa
“sEReted pee , eee THR Wh LE rex HB MME
2 faed_aendeaoslisot ;28S ,188 .a¢h eer ar
88 £ ame8-bog_ steno eas sere Pa eh 1 eae M po
mot mone Leaisennt 4d ete sost'ts onse oat at os
Were. ie ty BRS MAD Oy
pa jObL email OBL 4 "
“OL TEE staxe? Cy i
asw ‘asd ‘te none sid sub taawos en st ans nulatgo 100 ya |
onset mtd aaiwester * eons notte dvorssa ons | aber * am ro th AM
stontxg te nettaier ouit alge saa etround 2 A ahaa
“£8 oved oo atoo't sas balan beuoeb J os from tsa
PORT) SRE
«eats gato opav ioe fanol ta oat ot jaone as smeaows bak
is ai
Lis 1808. smad ot hed 3 Ns resins
3 Fy
Nola
onion Vidktatetg ouit ba Inos00 98 big ae git,
ect atod Ld | tagane eh, an pte ig
AF AR MGT
miss aud ‘i
wa
wvhierid a
Bational Salvage Co. in its corporate capacity, ond Harry L, Widler,
in hie individual capacity, then counsel are confronted with the
da emma of explaining who signed the neme Netional Salvage Co.
Harry L. Hitler 4id net sign it if the signature Harry 1. Midler
with the abbreviation of “Pres.” after it ic te be considered as
‘the individual signature of Harry 1. Kidler only, the abbreviation
"Pres." being merely Jeseriptio personas. In other words, the
Single signature Harry L, Midler cannot serve in two capacities,
Ramely, an individual capscity and a corporate capacity. As the
company wae a corvoration the signature of the company could be
made only by a natural person, The name National Salvage Co.
‘@lone, without being followed by the nawe of some natural person
“purporting to have authority to sign the name of the corporation,
“Would not be prima facie the indorsement of the corporation. It
follows logically therefore that if Harry L. Midler indereed the
Rote in his individual capacity owly, then the National Salvage
Go. has not tmdersed the note; ani that if Harry L, Midler indorsed
the note as president of the National Galvage Co., then Harry L.
‘Midier has not indorsed the note individually. According to our
‘epinien, which we have already expressed, Widler indorsed the note
ae
i, the Netional Salvage Co. ae president of the company. But as
oy
the note is made payable te the order of both the National Selvage
Go. and Harry L. Midler, the note, to be complete for negotiation,
be indorsed by both,
Section 30 of Art. ILI of the Negotiable Instruments
provides that if an instrument is "payable to order it is
“3 tiated by the indorsenent of the holder, completed by delivery."
7 + 41 of Art. IIL of the Negotiable Inetriments Act provides that
@ an inetrument is payable to the over of two or more payees
; indorsees who are not partners, all must indorse unless the one
nao: ing hae authority to indorse for the ethers. It is se held
edd ait by sesnetene ome Lemmas amstd ele, nee A
te) agar ing fasniie® omen ott donyin gaiw yakats Lee” toy 8:
£9 LH 2% oi apaeal menennts oath: = ob rh em — ARON
waitin sis ae noth Bi * vera v2
‘eas brow rastd 0 wi “BABS TOS Teen ¢ eioron patter gs
ahi toegee awe mh eTTOR tosses aoLhhit wil eek outers te ot
im sae Or
esis aA Yeloaqea pderenses -* hae ‘loogus Foubtetbat as
od ‘bLveo wrt wae eet te otedasy te ent ‘wok tare: i090 a ‘av
| +00 egaviat kano2iaii ern sat ‘moateg ‘fawdet ae ‘lite
moored tetwtan emos ‘io Sua eit xd Sowotiott ‘pated to sing
.aongerciriee ext to emit ost aie of Whreitus vail of jars
3 me ¥
Tosischinaies icin amas obad oe at ane
epariat kenoldolt ould Pore setae ‘eo aaaao ‘tewbtvtbad ‘aia at 7
hawzobad re ib ba st ‘ertad bs act bis jetom ‘one ‘beeconad dom wast 4 it
ot yrtel ‘hei a0 opeving Lenol dak ‘ona to fae tawde a8 Vien el
two ot nakbroeva “ifoub ivtat aton ‘odd poatehak | ane
ston out bewtodat woth hil shonastaxe waorke svat aw ia 2ate om
ae tw a ynaane oatt te snobtasra wa +09 euavine innettatt >
ogen sion tenotia ott sited ‘te xabr9 ‘oul? ad stdayey oben ad ngon
. tok tetd open “ot ateiquee od oF eto ott ston blt L yexett |
ta et as, me “ stltod ye pom abet edt th
weRR Cre viel
‘adaomrrea nt efdaks ogo ste to ‘pix a Ye 0 mohioes
ah th coban od oideyae" ak ‘Seometend mo XE ‘pane ited :
# exer ilos “a bese cymes ‘tos fod ald te dcomavebak suit w beta sones
sans seb. vetq ‘toa adcenart gent ‘eidotdogea wild Ye bestiid toe Seki
BoIYaG exon xe owe te toste old of bo hdaaa | Fis ist ae tet
one ond eselay serobat ewe ‘Lia setoadtog bias pond * asoutobal 7
Ai ei a a et i
biod oe ad at ‘setsiio eit ‘tot “eaxobat of yoix
oie =
AVE Hi,
Band
pier
¢
tm Grane v, Kereantite Savings Bank, 295 Ill, 574, 576.
It is a well established rule that a promissery note
has no valisity until the name of the payee appears on it as an
indorser. Blatchford v, Milliken, 35 111. 434, 440; Yout y.
Mekhart, 209 111. App., 30, 34; Hoblit v. Sandmeyer, 166 Ill. app.
‘431, 435; 7 Cyclopedia of Law ond Procedure, pp. 71, 792.
in our opinion, since both payees did net indorse the
not in the case at bar, the note was not in proper form to be
L at ly negotiated, and coneequently the plaintirfr did not aequire
@ Lega title to the mete. it follows also that the plaintiff took
at reenet to ali legal and equitable defenses, Virst Sati ong.
Ban: Centrelie v, Strang, 72 111, 559, 560; Sturges v. Miller,
r ma. 241, 242, 243; Pierik v. Mueller, 201 [11. App. 108, 109;
at Jeffers, 127 Ill. App. 307, 310.
| In thie view, the trial court committed reversible errer
: ‘giving the peremptory instruction to the fury to find fer the
intiry.
For the reaeons stated the fudgient is reversed and the
Pemanded.
REVERSED AND REVANDED.
y, P. J., and Matekett, J., concur.
eve ove VII 208 done enttyed oxtiiaote® pv eeedd
‘oton yrosolinwr «© tad efor Bode hiiague Tew’ et erin uae mbit
die av 2 ae stesera seyey oie To ember “Be tha Boosts
segagt po8W (bee Lert ee guettee Pert.
Jeg £27 Baz <aoamiaet vt 1tdon yee 08 /qga liter ‘gon’; dial
ee Lee ae {otwheoost hie wil Ey nea’: i
ed? serohat fon bIf deoyeq sivad #enta jab takes te ak ne
‘od OF vive sdqotq Ot sok aaw “6fom ott [ted 36 Sano Mt “ak .
atigpss tos ‘bth ‘hstateaty ot ‘yltie upoano” ‘pm be durtouony poet
dood Ytitate Ly eu? saat wala ewe tto’s at 8408 od oF onsed
degoiiel gezst snowing tas eked tape pan fidget the’ oF fateh ry
see enh te " weg “Sorr Oe rk (eer rch a es J
xorie elsidraves bed limcgn ditres ‘Letad eat” ‘GUS hepa’?
‘eae on BAN o Sat ‘was nt wottonr sons Bani: + a a 2
a a
satan iaihadosien aes Chwarae ewan Hew aa bE
wo Line aR Gm. 9 NERS font 2 ‘a a A FAR eR ee take aay tr sil
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ois “kee UR, nod Sots
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UW Lae ate fe freee namie ea aaah a ie Pk
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HPN el ah ib RE Bae AS na te W} rf awn tare wh toe 8 ' ee |
Bibel Ras MA ORLL Apne Ae admny ” dont wes oct Biomed | i
ey A ak ee I NC SC PB wh oe el ee hare oy beh gatos
47 - «31277
SINCLAIR REFINING Co.,
@ corporstion,
APIEAL PROM CIRCUIT coURT,
Appellee,
GOOK COUNTY,
oT i ee ae A
Fw
Ve
Lours PAVIAKOS, trading
as Nick Pavlakos,
33 Appellant.
i gn Mel i arg ir Ni aes
mm. PRESIDING JUSTICE GRIDIRY DOLIVERRE Tag OPINION OF THE COURT,
On May 14, 1925, plaintiff cemuenced an attachment
suit on the ground of non-revidence againat louie Yavlakoa,
“trading ac Hick Pavlakos," to recover s balance of $1298.31,
@laimed to be due for curtain gasoline, oils and lubricants
3 li and delivered during the months of suguet, September and
” e 1924. Under the writ the sheriff at tached certain
na estate, known as 6707-6709 South Reeine avenue, Chi¢gageo,
by Louis Paviakes, who was a resident of Athens, Greece,
BA then in that city, Plaintiff's declaration, in addition
horized agent for that purpose, a gaecline station located on
4a Teal estate; that Bick Povlakou, acting ae such RTI »
the merchandise, and had paid for some of it; and that
Was a balance due from the defendant of $1298.31. A general
of defendant wae filed by attorneys and an affidavit
@, sworn to by Mick Pavlakos. The substance of the
: lavit is that defendant did not control and operate the
. Station but thot his son, Hick, did se on his own
oe
ps, ae ee eta
ee
‘w=. ¢- Ue
Sarrn$
a.
= eens
a aie >
v
if ‘gis Hing
{TMOG TIVOALG MOKE WANT, cliente
aTeMyoR 2009 segaranrurne
ES “ a een Bakbend og
Ses fier x ee VES ae
: ssl suena nets
THOR mt 8 noruTsg, a, emmy 180 180 “gortavt + bia
BR? WOR
Promlonsss 1A bebreiaton’ “*tomtete , eed: ete ball 0) pa
“ g@kagvet elwol seattingy bosiebtues-nbn % te saw at
Ror te epmaled s teveoet oa yal ee ce v7
* “ggmmetegnt bas ele soniLonen ditadane tot eae bead
Dovid rodunsqae PRD Xo aid wom ‘ods yakeed
— BaateD badtosd otal Valdes “adi iw ai “yb
Ta aN
minntnne at : aaaneatie’ oiritemter aie | iy |
sh dots od .tauoe Lotoogs a bemtadmoe veces
ssotalvat atwed ,tusbowted esis atiaes bisa yatunb- dontd
qiud hao won at .corntvet talk swords baa YE 9 '
no hossood nokiede/ontioamm o yRaoquig Jade or da0g :
adaeyn Mowe va gelioa pandatea% Bok dactt yotesan: taor
sald bow qa22 cmos tk bbag food bets soakbuadosom | oad ons
feroney A ohbs8OSLE Yo jmabnstod add work sath” epmlad a aoe “"
divabkite ta hae ayorrcosds qd boLit aaw- jmodneted te & wf
edd Yo sonadadua atY seodakvat ao2t yd ov axewe: - en
ais average haw fotines ton bib.
mre ait oo o@ bEh to kW nee wie gata’ toe snnente
Ae Ny
ft Jou
o2~
account; that defendant did not purchase the merchandise or
guthorize its purchase; and thet defendant was not indebted to
Plaintiff in any eum. A trial was head without a jury, at whieh
two witnesses testified for plaintirr, ond Hiek Pavilakes fer
‘@efendant, and certain writings were introduced, including a
@ertain power of attorney to Hick Yavlekoe, executed by defendant
om June 2, 1924. The court found the issues for plaintiff,
assessed its damages at the full amount of ite claim, and, on
May 4, 1926, entered judgment against defendant fer $1298.31.
This appeal followed.
The main iseues on the trial were, whether Kick Pavlakos
in Ordering the merchandise, did eo on his own aecount,s or ag
the duly authorised agent of defendant, Louis vavlakes, and
“whether Sick or Loule owed the claimed balance (ae to the amount
of which there was no dispuate) to plaintif?, it appears from
oe; bills rendered by plaintiff to Nick, in his nome, and
tron certain letiers written by plaintifr to Hick, that eredit
for the merchandise wac given solely to Bick, It appears also
em the testimony of plaintiff's two witnesses, Matthias and
» ite employesa and whe sold for plaintiff the merchandise
oredit, that neither ever saw defendant or ever had ony deale-
: OF correspondence with him, and that the eccount on plain-
t 8 books for the merchandise was ageinat Bick and not defendont.
It also appears from Nick Paylekos’ testimony that
at's real estate was improved with a store and eseoline
ition, with the wowed accompanying tenks, pumps, ete.s that
ao eathnadoiss of3, eeasosug om DED imebweted dackd 4 Same
od beddoMt Jon enw tnabanteh sale ban jveodo tq ast 7s
doidw 22 «¢uwh o suodiiw bad wow Lakes 4 raure Ye ak Dekdele
oe polekwat Hort Baw «Ythenbalg 20% sorttent Fe ite oi
o patbuiont ebeoubestal oTew apakd baw aiagsec. bee a
B duabere to gd boTHOOKS vodtervet aot av wonnantin: te — eH) oh
;Trisataly sot sensed only Haser FtHoH MT: 4OROL oh “a
mo ,bua eabeko att to jmuems LLu ade Ja ogame ast ,
Ug best vor smabuerod sankags sammy tat beasane ace a a
: - pbowolLer Laoage « |
.ouan Eeked: en ma sentosh emathannisil ate PF
aounlvss. Bork veddode
HS SE ,aMvages HVE ohn ao oa La a Oo hboeiaatonsar: 968 ®
hee cagialves, ehvod ,smahanted To: ORepe:
drome wed 22 wa). genelod demisio ods bona” abwed so ont
BOL BIRLA th «esemsale OF (etauqekh om: esr sineutt 4
ben aga abs ih <RokW of Bidiaiale ys dorehses: aneae:
thdeus dedd aHolh os Vssabels ve medaka: areesoniat dad |
ene araorge Gh. «teal oF, yleloa marys sav. 8 |
LidsoM qapennatie owe o ithsatale Yo -oromtond: ‘
gathaaderen od2 Rentale toh dion ody bae: anoyolqme eth
oLagh, ys, bath FFs 7% drape lob wae TeTe sedition dad
wptheiy mG snNQnDe Od asd, Bt ath, id bw. eonebaegeosxen
tmabao'tod Jom bee wotlk saniage sev eatinancsen emt “set aood
Peaks, NECES OOe Saadalwet Bait ork Fh al wk BT) 4
onkioang pas evove a Mike, ovo 288 ossteo. Lnoe alt -
Bald 2.089, «sng aed with eraGeeOOR bowen ag: st
a Sune te eH of Jew datnibero eb nBSOL, aes: ro Hinem 6
oxyixogeh mid od. suodwend, sais aonmhe eve oxedd | het
NS ings she
aattonne A ee, Son 108 HERS 200, sont 9
i
i
Dem Beh
Fata ati Md Sy ey aly ot a
-3-
etation, who remained ae defendant's tenant, selling gavoline,
ete., wntil curing the month of Moreh, 1924, when he vacated
the premises before the expiration of the lesve; that when
defendent left Chicago in June, 1923, te take up hie residence
im Greece he left the munagement of the real estate and the
Gollection of the rents in the hande of the witness (his son);
that defendant was desirous of selling the premises, and that,
when fagler cdaundoned the premises defendant eonsented by Letter
that, pending = esle of the premises, the witness might operate
& gasoline business thereon on his own account, and eclely for
his benefit and not for defendant's benefit; that when the wit-
Bees made hie first purchase of gasoline, ete., he informed
Matthias (plaintiff's ssles agent) of the above facte, and
plaintite extended eredit for the merchondise to the witness
inéividually and not ae an agent for defendant; that some time
uring the summer of 1924, defendant, being desirous of making a
‘Loan upon certain of hie Chicago real estate, forwarded to the
witness &@ certain power of attorney, dated June 2, 1924,
(introduced in evidence by piaintiff); that under this power
ih
of attorney the witness made such loans that subsequently,
: the effortea and negotiations ef the witness, the premines
B question were sold to the Standard O11 Company, but the pur-
: r 2 refused to receive a deed therefor from the witnees (acting
attorney in fact for defendant); and thet the deed therefor
’ quently was signed by defendant in Greece, waa there duly
MRowledged by him, and the sale wae duly consummated.
: During the trial, and before any evidence had been
tending to show that Hick Pavlakeos wan running the
Station for éefendant and as the latter's agent »
Eien = ack aman
Se
ee
vautdonsa ‘ekizon ‘tuanod oSnoboereb eo batkomex enw hi
“S peanenw et todo week (Moda Yo sdiom oid ‘pat ie re
tay sash tonnel ‘ede YO moksertyxe ott” ‘oroted | aoxiwong a %
eoeish leer okt we eed eF oher » oct ab “eonioka” shot ‘Va tabire'
“ont bite oiates iby ony’ %6 smomegacom ay ‘¥ter” iat 48 rid
yea aba) wana? bw itt ‘ho “@hivoat oat’ ‘at ek ond to ‘Wo tba
| waie | bea sboalmany ona Prise) te ouorieed anv “paanaarsi
moedae: xe hed souies ‘duahao tit Weulwoxd ‘ont bodacious oye I
esereqo ‘tala toe sound ie ‘ot? (weatmong of? to aha filte’|
«ot viotoe hens stewoooa ame awe oid mo mooted? ason .
“Apkw old! woaW dat) (4itiaed elstadedtod te aes Tinie
i a al
“tno tek ‘eat ode poullovan te bait
“iy sadont wvods ott Ye’ ‘(imoge ‘solos ott by
" waontd ber ‘ota ‘og Suibmartinos’ ‘edt et espe dots one t
rey sual wh Wah iS Wa
emis aes ‘bode ‘{omabaetob toh tmoas ‘ne co %
ons
a gatden to euro ‘galed (taabooteh bet to comm emery:
ad ed bobuar6? sotetaa Lnox ogeoldd abt Yo beaters ;
isa yaloanete a Aas ise ee ni
hrc a east ‘bosab <yenred as “ta xowoq Hin? 500 oe one
So pian tee r O sp yh
“gawou ‘gistd voham “dastd ‘iCHusndaty vs ik oak
ante » Beata ms lus ‘wih :
“vubdnoupendua ‘pot inset dows pas rere i's f
, wore ee
sontmony, ois ‘seaoaste oda 0 suotsctsenes bem adxette edt i
Re ek! ii ey ht aay ap ee 4
am ‘oott ‘oud ong £20 bashed oda oe bien. otew molieow
uct Rhee STR ae?
beanies
' gations) uaeueiw ‘pul soz? “rolereds boob a ‘ovioaes ot
Lb aki i ek a8 se bis AY Saye Ban PR mR ty
qotorentd ‘bab ‘and teat ‘aus j (smaivere to 10% oot ak oma
‘of euunetend tie adele Ghent pane
via eroniy ‘aw es00008 at danbne tot eet a aaw yd
eh oc aa thar ata uso ad aes. ak ie + Se ht Bes om
sbod mason vist asw efon ods ban qeaid yd be bein:
Naik a iE ap ‘ahs a Wig seein a
Heed bod somsbave wa ‘exptod bas tabad oe |
os RD ah AS et j 4s een hit “ahaa Pye — ~
esta patumirt naw setakvat ao at ‘gene woe o2 gaulbaed
Se a Bet Me HE NE ee ee
senene e’teseal edd ao baw soobmoted tot moltedte
aie
plaintiff's witness, Matthias, wan allewed by the court, over
defendant's objection, to testify aa to a certain declapation,
Oleimed to have been made by Nick Baviakes to Matthias about
Jume 3, 1024, when he solicited of plaintiff oredit for sertain
@acoline, etc., vias “This property o11 belonge to my fathers
IT am running it for my father; I om handling everything for him.”
Biek Paviakos denied making any such statement, eo far ev it
Pelated to the gasoline station business, at thet time or at
any other time, to Matthias or to any other employee or agent
of plaintiff. Ye think that the court erred in allowing Matthias’
said tectimony to be admitted in evidence. I% 4a well settled
thet “an agency cannot ve proved by the mere declerations of an
Qgent, when the fact of agency is in issue.” ( Prest. * ve Tows,
225 111. 138, 148; c ! Gehott, 135 Ill.
685, 668; Merchants National Bank vy. Nichols & Shepard Co,
B25 Ill. 41, 49.) Im she last cited case it is anid: “The
source of nuthority is the principal, and the power of the agent
oan only be proved by tracing it te that sowree in some word or
act of the alleged principal.” nd we fail to find any competent
evidence in the present record tending to show that the defendant,
Louis Pavlakos, ever authorized his son te engage in said gasoline
ste Sion business in his (defendant's) behalf or to pledge his
| eo: endant's) credit therefor, or theresfter ratified any such
. by his son. On the contrary the evicenee clearly shows
a Hick Pavlakos purchased the merchandise in question seleay
Gwm account and thet eoredit fer the some was given te nim
dually. Plaintiff's counsel contend tht the power ef
above mentioned, given by defendant, waa broad enough
language to authorize defendant's som to operate for
is
z9¥e + taro ons ‘d howal la enw cas dad Jal stuenstw arvats ;
2 Pe
rmoksagtoad iad x99 s i“ na Wdsand Lol _tmattontde tens
(rede Md ‘oe mpraded | fhe wreuest eae veiv wan, ae
Er. as “xt en staomednte Psi we pthxon ‘bokned oe fe
to 1 enka ‘Poats ta saasatnud wo hseda smitonsy wists oo ‘be
dnepe x0 oeyotgaa sasisa vita os 1 endsks dai ot coats “tilde
"enhcaait wstwolts aut verse S108 ports vosts ada ev lyatda
OR eRS Oa be
potsion Liew wd n ssonodive ut ore imho og of ‘wmoaisaee
ua %0 saoltat soon wren ond ve evox od senna “xonoge
ah eRe
seen a setnoss) "sous mt ak vonoae 9 teat oad ast
Ls eee daode.
ait | tbtas at cy nase betke Sen ots at (eee th 1 a
snags outs % owog outs bins <Lagtomtyy outs ok ‘etdzedana te
SRR NEWS ON Machi Me
“Ye beow onto ak sorue: ‘yause are aatoont ‘wW hovorg .
4 ve a
venta ne ‘we ‘a? ot Kho ow bes # Aagtoatoy honedta
ont kong ‘phoo ab epee ot mon ‘ahd bexizedins ‘sove ia
| nel apbele oe Lbatiod “(a davome ton) nid at aaen ef
stow ans poktieer ‘rotteonede 8 ‘etotoxedts iiboxs ¢
ewosta Unaode somohtee ond quer inee ead 0 sm98 “abst w a
ORT 2h eheat es
elalon notdnouy ‘at ea tnasasoat ‘ent bosetinug 0 sodalvet
ahs oF wovha Baw Mate ‘enh aoe ‘ghterw dots eng “one Ruf ori
bad 19mg ‘odd Soda hmedmor Lenakoo ‘alytdentost |
sgsons baoxd uaw stnabaeteh W sevid hint wi
“ 8 4 Repke a bes
‘wot obarege ‘ot moe a" sashao eb ‘paizedena os
His wie futile Bee Aegean aa to ghaiey awa have py
mi)
‘i
SOL SNe a 6 yaaa!) Ur ta vai Mi Baa Ni? aad S|
io
defendant the gasoline station business on the premises, After
reading the instrument we cannot agree with the contention.
The powere granted had reference only to the sale or mortgage or
Lessing of defendant's Chicsge real estate. And the clause in
the instrument giving esi¢ son the power "to purchase any personal
Property and real estate from time to time ae he may choone,"
when read in connection with the further Glause, *to make ail
alterations and improvemente” upon said real estate as he may see
fit, clearly refers to the purchase only of such personal property
er chattels as might be necesaury for the mintenance and upkeep
of the real eetate. urthermore, when the firet credits were
extended by plaintiff to Wieck Pavlakes for @usoline, eto., the
Power of attorney bad not been delivered and at the timeswhen
Plaintiff's agents extended the further credits for the mer-
Chandise sued for neither of them hed. seen said power and plain-
tiff could not have relied upen it.
Tn our opinion there is no evidenee contained in the
Present record tc support the juda@ment of the court against
Louis Pavlakos as rendered, or which sould support any judgment
against him in cny amount in favor of plaintiff. It is clear
that Mick Pavlekos, and not defendent, is plaintiff's debtor for
tho Value of the merchandise sued for. Aevcordingly the judgment
of the cireuit court appealed from is reversed without remandment
ef the couse.
' ‘ | JUDGMENT REVERSED WITHOUT REMARDMENT,
"a amd Barnes, JJ.» conoure
c
“aos oon ons Re onetlaad solsaia enliloarg odd pe
atotiondana asd a3 he so1me sonnee ow Smemustd anh eid, pakbs
19 egaptien we aise on? oF yleo senate tes bad Sosaomm acon
(Mk onsiado ot MA eetetee Lnot onooidd afsaadne ted, Yo uitas
iemoaney we eantoxug os” qawey add mow biae salvin snomunsant,
) Pamancstes Nain off, am OLE OF, eon kd mote" eaacaw fa0 baw yaxous
List gale Of" .senake xadduv odd ditw Kektooubs Hé, hoor am
oon Yer wi eo Statae Last bin soqe *adapmovonyal hoe an0 2
yrenqeng Lamontad down te vino sandowg ont o¢ ate'tos vieaake
qookeyr baw sousmednion acd 20% Venwaswen od Migte a a9 boat
exaw gthhese dexkt axle apsiv. + Monatsh ass setedee. dave 9 :
Aad, qente sonhhonay 39%: moat wo% Bate od. Whamdeig ee ° ye
“modi gomts oad dc hae Sonerised mead.dos baal aso 0
oko at bontetooo sonabive om wd. enostd lia sae a8 thas saul
_dremgiul gra tmqque Bhwow doldw xo ,herasaes ag, nodateet
“seks af 41 .Vikgaiolg Ye cers? wb Joaonu, we al std Ste |
met sotdoh oY iidmtale of .tanknotee om ham «xodelve® aot |
traghbnomes tuoitio baauovex of mext aoLeaqge Stoo, ¢hweade. é
ME iy ae "pen Ree A iS Ro hopping I of oye a aay aan nein
ii waitne CF aR eae
WINDING GY FACTS.
We find as ultimate facts im thie case that
int, Louie Favlakes, did not purchase from plaintirr
¢ merehandive im question; thut Mick Paviakes purchswed
‘come solely on his own account and that eredit therefer
extended by plaintirs aolely to nimy thet Niek Pevlakes
) authority, express or implied, as agent, to purchase
eine for defendant ond bind the latier therefor; and thet
@ndant iv not indebted te plaintiff in eny sum.
Hat: eRe aR shai ae: muna LAME tea Mae tg.
ARPS R REY, BORE, PULA ME RRR IF
0 MGR a Re Phar: We ey BAe ween ih eat
ee EA. GRR: AOE: pitt, GMa
aching: MASH, eo area: pa > ‘pneagaeimbsentecboattie
ri igh Phe) Re in iy”
JER aay ei ess “ye tiie om wy
K; ast : “
SR eae cen aa
mies. Diet AR
wei & Hans f PEN, ang
ea sea, Gg, RIDES abe Rae up bab greiippnntbert
ee ee ‘wi
ob pr etmletn,. Ri St MOR ect net Dw
PUN ae ah yon, aa hi. | sale
A
Myth Aa, Hye Rare ete
Ri? way A Le ae i
iy
156 - 31287
Miaanr, 5 se: BIRCTRIC LAMP }
ANY, @ Gorporetion, j
Appellant, }) APPRAL FROM MUNICIPAL
Ve COURT OF CHICAGO.
BOARD OF EDUCATION OF CHICAGO, ier e
Appellee. sg :
Wi. PRESIOING JUSTICH GRIDLAY DELIVERED THE OPINION OF THE coURT.
On Harch 10, 1924, plaintiff comenced an action in
geeumpsit ageinst the Board of Kduextion of Chisage to recover
damages for its alleged brench of a written contract, dated
Vebruary 23, 1922, in that it refused to accept deliveries of
the balance of certain incandescent eleetric light lamps and
pay for the same at the contrast prices. Plaintiff claimed
damages in the cum of about $22,800, being the balonce alleged
to be due at enié contract prices. Im addition to ite affidevit
Of defense, defendunt filed a claim of set-off, in which it
alleged that it had suffered demagea by reason of pleintiff's
breach of the contract in the gum of about $23,500.
@ somewhat protracted jury trinl the following verdict
a returned: “Ye, the jury, find the issues on plaintiff's
c at mt of claim and defandant's set-off agninet the defendant,
and assess the plaintiff's damages at the sum of no dollars.”
h 16, A926 ye yer judgment upen the verdict
plaintife for costs and Sppealed. Mo cross-errors
@ here been seoigned by defdndant. Plaintiff's counsel dows
| Complain of ony of the court's instructions. His main con-
9 &2 we understand it from the various points made in
asro rue Mowe Gaawta C
,OnivIKy 0 YaOD
° Xp ab iy iy i 6
ethOS GBP WO wormaso ane aHaRVL IAG
bes ‘vguat sight wkxsoele Jewoenbssont ntoareo we | a
hemtals YAsabol® eeeokeg doasinor std a onae ous aa
© begets eoasiod orté guted 1008, 254 sued % to one out ak Boge
thenbhrke eft of molstbda at “saeohag toaxdaow bhoe aa ab
FP donde wt «Montes to miato a beret imobmoted «ame
i ei Yutiatels ‘te moase vs sogausd vox as baat at tots
a ; ‘2008, 808 tuods 0 ease eats mk touxdn09 ‘ot © dosed
tobtuey patwolle’ edd tates ‘url besoursona faswnaos a
ae aPtkenkely ao coment ont bak? vytut ead we hoard ox
atiagnnieingely wats! tentage % To-dea a dandosted hate wha te er
eee! (30 mua odd fe pened a Viiemialg 3
tokbuey oui wens srompbut boredair. wee bent ase
ib? wtorte-asose ow obo Leeqas bas steep 10? “yenamtatg
q amt foamwon a PRtsabals + dana ten Na bumra teas rood ered ®
I oneo shew oil o amte L4 parca wick at éureo ode @ be % abatgnos
| ah sham adehow aura busy oats nox basta ham ow ax ame
} "— qdd of yxoxdnoo et suompdwh, one tact af tend rotmisg
Im plaintiff's statement of claim it ie alleged that,
under the written contract (copy atinehed ORG made ao part of
the statement an Exhivit 1) for the purehose by defendant of
the 98,000 lemps therein mentioned and ageregating at the con-
tract prices $40,316, there had been « shivered to degendant about
41,500 lamps “AR nocordance with eatd contract," te the total
‘Value at said contract prices of $17,524, which hod doen paid for
By its oe would more fully appear from a written atatement,
“@rhibit 2, (attrehet and mate @ pert of the statement); that the
Balence of anid Jompe (about 56,500) “have been tendered by
Plaintiff to defendant in accordance with said contract,” but
that defendant hoe refused te receive them, toe plaintisr’
damuge in the cum ef $22,792) and that piaintirr at all times
‘es Deon, and still is, rendy, willing and uble to furnish said
Lampe. In the contract (intreduced in évidenee)oplaintifr¢ agrees,
in Considerstion of the agreements oftervards mentioned to be
kept and performed by defendant, “to furnish eng deliver® to
defencont the designated lampe and at the prices mentioned, for
he ‘Ghicago Public Schools, and “AB pbrict secordunce with the
pe Wifdeations ond propogai” of plaintiff, “hereto attached ani
* me & part of this contract."
i In defendant’ saaffidevit of merits it denied that
plaimtire had tendered any lamps ae alleged, or that those which
Mad been delivercd and paid for were of the type and grade
SUDA fer iy the contracts er that it was indeptes to plaintife
sume
In defendant's amended statement of set-ort it te
in substance that under the contract plaintirr We. @
to furnigh defendent "elestrie lemps manufactured
0'y MateOaT CeO i a
Jo ay REG gan
is
———
rt Ge
ajodte begetia ef 2h atalo Ye feeuodade o*Venembete mx a.
so dug o eho hme hodostte yeoo) smentnoo mead thw one” 20h
to sunhwated “ot eecdomg oft vot Ch atdtstad wa _smomatnge
win ad? ce ymbsngersnge bus bemoan nkoged’ wasnt
suede tecbasted 63. peterdto’ maed het ovetd? pBit,Or> seoloy a
indod ade of “agnomtnns bing st.to emmieog oe. mk" ommend: |
tom ipod tuut do dete jana, e20 eC) ihe bg ‘goatee pte te ou
yinccancnsidae &, OER songs ohter wom bfeow mm KR
act Sct 1(daemnaote edd a dq & ofa bea nectent oat 08 the te
* (00a, 08 suede} oquat ake te 00 8
Aa Ae Wey
su *\goaasnee bins dew ponabroo0n a fonbaoreh oe
MER? 5 ay eth
saute Lia ta | tabendete dass aa gor, s28 Les mats, ae at
Aten staderuas? oe aida pai pobisie sense, vet ‘itse “bn saeed
e997Hs dibemtase(woaeater at soouborsnt) ‘toordmae oud ‘et ey
WBN si vey
‘e ov hone £3 aoe abrawzod'ts odmoms 9ge oad to noida poh
WER Pe
RA aie
to? sbeun komen, aon es ‘te ‘bats eqeat ‘pedamye vob hehe r
in yy "ey escoo onde ake” om,
con dine at" sees sakeosdot
el ie
os “xeyssa® Ae Soho? os" ‘insaaotb ‘oo Searre
mi oh ae sie
i
ty
vitiminta ¢ 08 ; bosdonat « soo a itt oT + stoorbans we ry
Ve Ae ;
OH ae ak Pages tigen mer iw i "
a2 an ovten bei tnaso tot oncom 2 tee shay cyl
Bae vibentata tovadeon ose nob tout?
eid eyeniny Ge siti)
ed syn enseoese" tunbatted Hokey on
on WR aipeheen tani me Meee ig a » that” eee
ond, walt beak Gee
whoo
by the Keystone Klectric iamp Yivision of the General <leetrie
Cos" that of these contracted for, defendant ordered about 42,000
Aempe which were delivered te it, wut they were of “an inferior
and different type and quality,” end Were “tetally ani wholly
Gefective, imperfect, worthless and of ne value wheteoever for
Righting purposess;" that fer these delivered iamps defendant
‘paid to plaintizr the total aus Of 9175960, and did so before it
Rad knowlecge of their werthlessness for lighting purposes, or
that they were not “Keystone” lamps; and that plaintiff hos re~
fused to accept the return of anid selivered lamps, or te refund
the price paid therefor, to defendant's damage te thet amount, .
There are allegations of further damages, andes rg defandant's total
Claim Of set-off, $23,580. Attached as am exhibit ip «a letter
(afterwards introduced in evicense) written by pleintirr by its
President, Earl Arcola, to defendant, dated January 24, 1992,
(avout one month before the exeoution ef the eontract eaued upon)
* follows:
4 "In connection with bid heres for supplying
We incandescent laups ts the ard of béuen ion, we have
| 0 advise we are applying 2 discount of 37% from the
Standard list prices (used by all lamps ees!
‘ type B Vacuum —— lamps snd carbon : e and
+408 fro ¥ from the list prices on type C., or ge £1. led lampa.
@ have rigeng the past year supplied a ply oll of
oleageee used i Hoare of Porgy = M4 n
: at b “4 ny tone
: im @ paregraph of the specifiontions Felating to the
P Tungsten Fi lement dompe, 1t is said “These epecifications
. the hisooa sci of the inrge Musde lamps to be
= * Mesde is « trade mark spplied to those incandescent
_ in the construction of which the manufecturer recelyes
? t of the advice and researeh of the Research Laboratories
obesoare Lieames Bo tu ‘te soe ha By bid qmad Obtsvels anosayat cas
O00 ,0d Suede hewWHxe seevaykek , oR bedoowsaes aod ‘to gods %
roltwras aa” Yo wtow you? daw .2k Os Setevetad oxow vioketwing
‘¢eliese ona qilased” gvew baa "yyd eLawp bee ogys dhoweT Ree
ROR Kovoatrde oMLev Ox To bie KOLAILOW sos T TOMER eovese:
tuehno tod vqant Aereviied wacdd woX Saad “Peosoqemqeambse
OL gaGted te bkd dma 908,040 to mun Lased ott VtkImbadq ied
To swoomeuey gtlidgil t0'% eesineolds ww thede Te egbedwoml
aerer Vibiwiely Gots see { dyad ramos eyex” dou avew wot
bew'tes 02 28 yaombl Sedeviled blaw 6 ataton wad sqeoue od be
_ Maro! $a? Oo ogumbad’ 9 amohaw wh wr” vtoteuedy bien oobi
fnged a 'tuahon'teh gain (aegrass cade YO anolsiyot iw ote ot
Teste a wk Lidhdxe mw ae bodowi sa — OBE SKE YTro-d oe” ton
web YS Vidsalale qd meet iow (eomehtve ab, heawbontnd: abe
REL VOR Grew Hoses _smabaoteb oF yaloows Leek qimonl
(aout Soe Pontdaon 86d Yo MOLI MwOND wd wLOTOU oe |
Cr eR i ten
ihe
a ee steretae
i oa
; ‘
Emi how
trwonehsumont cod ee ape trom hod a ot gbuait ' « boatyitl
i : arn he sitions at
40
at Sehenectady.”
The evidence diseleeed in eubetance the following:
After the execution of the contract defendant ordered ond received
(Aimeluding some replacements) about 41,500 lamps, for whieh it
Witimately paid plisintirf over 17,300. Most of the lamps received
Were sO-called “Congress” ianpes ond not “Mazda” lamps. After
mest of these deliverivs bad been mado, mony complaints were
Feceived vy John Howatt, chief engineer of defeondent, frem many
@ngineors at the yorious school buildings where the lamps hed |
been instalied, that mony of them were defvotive in that seme
@xploded when the current was applied, some turned black or
smoky, some white or milky, and some burned only a few hours.
About twenty-five of these engineers testified to theese facta.
Howat’ tentified that upen investigution he found thet mony of
these defective lamps were not “Wasda" lamps ond that in other
particulars they did not conform to the requirements of the
specificntions, A. J. Horfmn, an electrical engineer employed
Wy defendant, testified thet he specialized in clectrie Lightings
het he was fimilinr with the provisions of the contract and
ope Mfiextions in quection; that im accerdemee with those
1 : visions the everage life ef o lamp wag 1,000 burning hours
. t the "Made" lamp 4s such a lamp, which io manufactured
, 0 to certain specifiontions outlined snd adepted by
re Research Laboratories at ‘chenectady, which work in harmony
- the Bureau of Standards at Fashingtom, 2. Cos that the only
p ‘Manuf»c turing lemps, in strict eecerd with the specifics tions
ih } Contract im question, woe the General Mleetric Co.g and that
"Congress" lemps, so furniched by plaintiff under said contract,
hot comply with enid specifications. As the reoult of the
which defendant had had, as regards the lemps which
“Igatworte® ee comatndws mt deeeleath enaebive ant! nb
hovbovet bie diated itintwetoh Sousa weld te" saphena ad *
$b sto.teew 20% equal 006,52 Inete (admanovetgoe smbva’ gehbuts
hovkeout aqank ald Ye Swe . 008, TL) wows Whsmtatg wEay kot intk
26e%) saGmad “abewl™ tou one equal “eeogned® salLaovon’ @
“Gtbw ofmtniqaoo Yaom whem Rood hart wobrovi feb’ wabde te ‘
Guns mer tacbnd tos to veomtymy Yodts yd same rie ts
Rew wemak welt oxesiw ugabol ewe Loose adetiow Bat” OW wbmeel
eetn Goold wk avlsow'teb oxow meds to ysie died 4h tt wie
te Contd bowed men ,betteqn tow decoy ek albert
setsod weit a yhdo bomen omoe ons oti 6 oR ob
saHuat weadd Qo DOLtEe6eF aeeontgan evade Ye ovltoy +H
Yo ‘yim Hale hero Of makeoghinown? moqe Hee bntinedad He
nadda a toil? Se oquat ahicort” Foe Ohow udm ovtdoutel si
add “Yo Waiddaontepen aad Gi mxdinds son’ hes Cede" Sliee
begetenh ‘tonatane Leokxseoke ae Sennen ob A oemp kes
we a 3 { we fe
CAR RRM By 4 ile
ND Yeadon Pol Wty
‘a
U , ey
qmomted mh gow eotew rials an ankrotonsitat mn
eho ond goskt YoD 0 «Mocnatdan” Ja ehuebaae oS wanmm
emols vottiovge ed Mtky Amgcpe dotrte mk «eqn Bukuwton
doaht daw §«09, okgt ook, Loviren® baht nay 9 kiepatp. a 0
sfoortneo Aan rola Mubsakalg et dectekera? oe «mum ”
od Ro dhwoan aad Oh annihtoak Boge koa std be
sto bite agqael ods abroget an ahaa best trabaeteh setae
i Pad
" t :
ri ‘ 7
a qf aay
it bear's i
As oat i
Ri i Mh ee
i dans WU halt ae
=5-
Plaintiff head celivered, cefendant, although requested, refused
to order any more lamps umicr the contract. And, nlthough pleine
tiff alleged in his statement of claim thot the balance of the
umber of lampy mentioned in the contract bod been tendered te
defendant, plaintiff's evidence failed te chow thet 4: ever mde
amy tender of any such lamps to defendant. Tho teotimeny of
Plaintiff's precident, Sarl sreola, was only to the effect that
plaintiff? atood ready, able and willing te siesta the balanee
of the stipulated number of lemps which would be _ ‘in accord with
the specifications ef the sentract. He slee testified that in
hie opinion most of the delivered lemps, although net “Mazda”
lamps, sufficiently complied with the requirements of the
spseifioations. my “eight thet thie teatimony might have had
Nefore the jurywme greatly leeanened, if net entirely overcome,
ys letter, introduced by defendant, written by the witaess as
Plaiatirr’ s president om January 53, 1923, in response to defendant's
suggention thet plaintiff submit a bid for the furnishing of
electric lamps te defendant for thet year (vis, the year
ing the one to which the contract in question epplicd.)
It appeared from the testimony of Hoffman, (whe drafted the
pee deations for the preposed contruct for the year 1923)
ha Qold specificctionz were identical im their requirements
Mth those of the specificntions of the contract of February
| ? , 1922, in question. Im said letter plaintiff, by Arcola,
w te the then president of defendants
"Ve have received a copy of the apecifie tions
fer furnishing incandescent electric lamps * *,
and letter accompanying seme in whieh you.
anvite those intending to bid to point out conditions
_+@mbodied in the specifications that are diffiewlt te
meet. * * Those specifiesntions, s5 written, ere
Bidders to the furnishing of ‘Masda' lamps. a
haawtot ehadaanpes dauods La etasbis tes shorert ion, ba. LES ry
mk ly syseoths Lin Om ptonsdno ase aobmb waatid exam yam aoe
edd, Wo pomacad ont gusts tate re, annumaate, wht Ah begetia 22
et boxphne? wand beat tonsdngo ocd ah heme Le som womed 3 ;
rm seve, (2 desd ween, of bosip? oommntye, o'itemkele »lanbeot
Ip yaouteand eit, _nbabaeten os. agmual, Hon, We. 76, ravent wi
tad spothe ems, od “loo par salopus, dae, 2 omebhom Tg of?! Ly
NRA Lae ott sevise® of amisfin ane, pide, «yhoo, honde, ™
Adivw prego ado esos. desde squad to rede bess
at sed pottites? cule ol »egandmon gat 20, asorseoih i
“tebpak tom dguodiia ,uqmel pemereled on? 20, FOMm: APTRE
$id 2 atmomettayes od8 tty bebtames, septa +
he eves, Adgim weomidnes whad 198d 2aRhOH NB e MOR ETIRT
9mm Te FO yiogieae fon x. doapen es VhtnerD, i ba . .
as saosiiiw oct a aod ¢ baw sdmaba'ted Wf, boon iex k, wi |
s tacdaw eb, os sampgees a5 BORE a& Yreueicl 20, aayhlagys & Tee
2o patdedewat ods 103 bie # ¢ieine, ‘Wiiatele sod ‘ 0 htae
cous cm NA cat) ‘aegy, tacit s0% fmobme pep od eqmat ott
nr pattgae wolfaouy ui tpandaon aie ie Late OF , wt 9 ,
add paatwxh enle) aisenti20N 20 vaeahyney sol sort bor
(snes tay odd ce, fousenoo baaeqang t 4 oe 20% ont :
ednompaksp et sheds, mh Laobigebs onew al dtchs r
eiomndet Ye teatéaog ode Be, ame Lined tongs oat 29 node
_aatents Ss Tittahase, qntdes dios mk smohsaemp mA 98 8
_ ttmepaiten, 26, Lssamnitogins ould 8
_amobtcasstong tei |
2 jalee thaws pom Oro yang oe ‘he. oe 3
93 Pec haw one tysld xe ic
pid al pare ee '
Rlestris Covs anda independent cumpanies oun bid
under these apecifieations. “ * Kanufacturers of
who are not affiliated with the lamp trust,
asda lange axe barre fren bicding.s
After donsidering the provisions of the contract in
question and the scvomponying specifiextions, and after re«
viewing the evidemec, we are of the opinion that plaintiff did
Bot prove such & oxee a8 warranted the jury in awarding te it
any demges. Under the contract plaintiff wae required te
Geliver lamps in strict sccoriance with the specifientions before
paynents were due therefor from defendant. Some of the Lamps
were received and paid for vefore it was ascertained thot many
were not of good quality or of the proper kind and did mot comply
with the specifications. After there fucte were avoertoined
defendant wae juetifies in not giving orders fer the b lanee of
tthe lnmps contracted for. It is well settled that before a
party to « contract can recover damages for the claimed broach
ot the other party to accept deliveries ef articles contracted te
be purchased, such party must chow that it has performed or
efteres to perform its part of the contract, and is not iteelf in
default. (Horber Brothere Cos v. Moffat Cyele “ow, IGA Thls B4,
92) Turner v. Ovgood Art Coo, 225 Ill. 629, 6377 Graham ve
9 44 Ill. $85, 392.) Plaintiff nlieged in ite otatenent
thet it had tendered te defendant the balance of the
contracted te be purchived which were imo coordance with
et ond specifications, but it introduced no ¢ vidence
om such tender ex tenders. ‘nd, in view of the provisions
ne ‘eontract, and such allegation, plaintiff cannot rely fer
! of dam.ges upon the theory that there wae what
to a woiver of « tender, or that a tender would have
ae
haces «att ol ahem earl 20% een whee oid:
bid aes asleegwes teubeoqobak on baw gs09 Bhrdeg
ae! ¥ mnenuine ie: n> sanahiaol hioegy eed ee hop
Saunt? geal odd Wkw hedallivta gow oe ede wqe. h
asks 99 Lose v0 senate ‘eer eiot mk Roslberag: ie be
*sgatbote meet bowxed tm heya Pe ae
Ae I
‘u ‘dowttnen ants to eno te kveng ‘outa satsobtemos 0dtA
et rode ba samW Liao Doega, sakyarqaoons ‘oat ‘kee ‘no .
selec eae
abs p ikintale dats nehstge ons w ore oS senate yore tte
“9d betkayes saw ‘vitentate doesdaes add tobal
exeted enohiaotttooqy ont she ‘e6nhbeeoes aohitn a
agent vals Yo anol sdanbmetos mort rohoxeds ouh
atone dst’ bunk sd r0oaa aw ot sietee 202 beg hae bobs i
danas don bah hoa cere ‘neque eat ‘te “0 wi dans ply be dou
“Bamkes0907 oxow } aboot ovo tosth % Free 0 ;
eo betoatinos wetstisa te eobreytiod base |
Ph (Raia og
19 Dowroteoy wad $F Saclt wesko ama baa
wh woutt tom ab aan ‘$ooesm02 ‘eng oy ane bis! “
198 AEE £06 4.92 afew totod os 400 grmdiond |
+x.saster® thie 2008 of IT ess “2 Oo fa) hose
daoutnde ent on bopetin helene (eBOe 9808 940
od) Yo vonared ond Inabawiab oe bevebmed bad OE wa
ta ke ‘wonabron9. a at oxow Ko bite henaseemd os 9 odo
wonebtv © on: beoubonten #h ‘oud ‘ane tésoistooge as hea
a a see As Sa a
enw dudvery euta Ww wore ae om i
Sat ‘ay panes pers www att
Af] ATO Me bea ae ap ih
avad hiew sehand a inld 46 er :
Te
Deen unavailing, (Shultz v. Hamilton, 149 Til» app. 306, 408,
Expanded Motol Co. v. Boyoe, 235 [1l. 244, 289; Walsh vy. North
Amerionn Storage (o., 260 111. 322, 351.) urthernore, plain-
aff did not intreduce any evidence aa te the amount of damages
whieh it head sustained by reason of defendant’, alleged refusal
‘te accept the balance of the lemps. The meacure of its damages
@ould mot be the contmact prices therefor, but the difference
between these prices amd the fair market priees at the place
and time of the bresch. (Burvay ye oud & Cos, 167 Ihde 368,
$74; Bagley vy. Findlay, 42 111. 524, $25.) There wan no
@vidence that plaintiff hid stered the balames of the lompes
for defendant ound 5" 4t notice that this had been done.
oad ve do not think thot the court comultted any
revercible error in refusing to admit in evidence certain
duplicate receipts {ofvered by plaimtirf) for some of the
MBiverse lamps, which receipts were signed by defendant's
superintendent of mupplies ot tne times of the reepective
deliveries, and which, <beve his sicnaturc, had the printed
vords: "I have personally sxemined the goods herein recorded
ame find them equal to specifications, contract and samples
: | every particular.” There wou no evidomer that said
‘aup t opaned the pockeges containing the lomps and
them, or that he had any knowledge ag to the qualities
lemps im guneral, or any knowledge of the contract or
tions in guestion, or that he hed omy authority te
. Rn Metensant by «amy such statement. Yurthermore, the
0 #0 reveived were fully paid for by defendant.
Ror do we think that the verdict of the jury is 20
ané uncertain that a valid judgment could net be
bred thereon, as contended by plaintiff's oounsel.
p00 6ORE eh VLET COL Vmoe twat yy aa tule)
Bash wy Baty ees ge +18, rd eh ae ot
ombake «oubiesoitrent (4208 (oe 6EKt Cor re
aogemeh IO Semrowus ene a an vomabiye ye souboutat, “tom bib: ®
Lauter hegeils « "Seabee bab 20 meant We Pomtatous bad th do
sepemeh eft 20 oziyamm, oul”, natant od? Re sonslod ote tqecoe,
BomeTNTTAD od’ sud gto lors? seokig tonutnee exit ae me
apoly afd to nookry cotsem het, of? bas weobag onods
vn (BBE «EAE VOL cn92 & byrne oy emma) selonoad, Pee
_ 6% mew gnadt open ane AEE. 8 Lonete 0.
‘ - qeonog ad? to vommled ord horete beat vipemtage fads ae
seaok topd hed wks god? opkdor 4 woven baw, dmaastan
Rate Rotdlemoe anwes od dots Mnkad, som o>, OW, BM oy i
ana samebaenak sanbi: teapnbasnnebciiia ahd kane
nds 20 omoe sor (Tiitwbalg wt boxiRe), atatooes sents
i Saabae tes gd bonnke ovoe abyioves te idw nected; zoe
prbtengeey ods to aomks. eas tm, aoliqusm to dm . .
bedaben osld had, soxetem. te. abil ovode athe ale, Bite 9:
habupoot meted nboop oMd, bamhucae ¥SLenee xg: a _ a
walames ban tewstaon VeRO LIwoLBhesge eb Lawpe mois ett:
yo hee duets pomwhhre et Rar fase Sematont 8
anksitas» aslt ot eli inl lie
0 tpetduen odd. 20 ogdakepad yao xe aLawonny ee
OS: Mb bawsioone ges fw: sar eayrisnmnigromyneningien \
| OE gO oMoK ater 5 tmemn tds. sie YIN wired J
eta obae ted Yt 10% hog TehLeth: oxen si you one
ob cn at 26 ea aa wa
i tet Laos soem to, bkLev wend mks rove ba @ :
Be Fne, a ge
» Lone soe Ry yf Seobnotaon am moouedld
‘@learly appears that the jury found the iemes againet
efendant on ite claim of set-off (of which defendant tu not
“ complaining), and it sufficiently eppeare that the
|sury found that plaintiff, on the issues presented by ite
in nt of Glaim and defendant's affidavit of merite, —
entitled to any domages. Under this verdict amd
6 We preper.
Our conclusion is that the ducgment of the
court should be affirmed and it ts #0 ordered,
PS:
wi an Paar? Ws
aR ere 8 aa ac wig es re
rie Slee ws Nga me eink? § ee 4
get» doe. d
Mot
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ae WA ea ere. o asthe ry Dienst sf rah ne bane
SAUCE, Nauk RRR TE: I AE avin : nner mf
wee a Si aohensen, Deu
een presi aca a me Wowie ty tle habs, ae,
Reh Mt, nigh Ayes sail BOW tr ai bea nds
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ete Rae aie 2a ka
ign ‘ Rh dh Nt $y 2 es NEN, ate i
173 = «631305
AHTOR SES IGEL et ale,
Cenplainants, i
ve
WREUE MOTOR GO., et Shes ‘
befendante. )
)
CIRCUIT COURT,
LIAK J. ST. George, ¢ coum:
Petitioner and sppellant, a sah
¥e
GHICAGO TITLE 4 TRUST CO.,
_ eepondent and Appellee.
oy
\
PRESIDING JUETICS GRIGISY DLIVERED THE OPINION OF THE comR °
By this appesl appeliant secks toe reverse an order of
be Cireuit esourt of Cook county, entered March 15, i826, dis-
sing for want of equity his petition, filed by leave of court
on October ll, 1922, im the pending chancery cause entitled
" gh. v. Urous Motor Coo, et els, - being a bill for
eceiver, an accounting, cte., filed Kareh 2, 1922.
He alleges in substance in the petition that on the
y the bill wos filec Jnceb Goldman was appointed receiver of
@ aenets of the Hoter Co. snd that he qualified as euchs that
| the following day certain orecitors of the Heter Co. filed a
et in the United States Court tor the Sorthern District
Tlinois, praying thet the Meter Ce. be adjudicated a bank-
P thet one EK. b. Buell there was appointee receiver, and he
sk immediate Possession; that on Hareh 30, 1922, the Cireuit
, authorized Goldman to issue receiver's certificates te
ee fumte te pay the claims of sli erediters whe appeared in
nl Proceedings; thet on June 10, 1922, the U. &.
vi
ra
a
PRI rivonts” ‘ 1
- YTS AOC3
Has a Meee G
' @2age te evaek yd boltt te i? bog sid giisos te dese wr
hetSisme eesse Creonade gulbaey odd mt ¢SS0L Qf vodote
set {116 a guted - «£230 4209 s9d0% anazt Fs 3 2 wy:
880£ (S derail BOLT ,.ode .sulsewesea me
id mo gent? moivieeg sts mi somsadcn at nogotie oH ve
te xevhecet aodakocgs ane sanded Sonat neki vaw {Eis set 9
acd tfews 26 beltifery od godt bas 200 todo of Te ‘
& Bell? .00 seseH eds te exee isons aindreo yab guteottot
. sobededs. aiauisweh etd tot Sume0 aeteds oegiat ads co oh
~dusd 3 begeottatba ed 16% resek oils dust senyong oes
anak zoe | fee neie0oq
ot baa ,sevisesst setniocua ase oxed2.. shone 2 Seine a. te
tiusthO ef .SSEL ,00 doxel ao tad? qeekeconni :
eo soganitisies etapvicess susst ea ccna silat
ai sgiamue enw exed2boxo Lis Ye amials oe ysq of ebawt 6:
oS AU edd 290K .0£ amt mo sat tagatboosoxg veto
an
aes
-2-
@eurt entered an order, conditioned upon it appecring that all
eeheduled clsims aginst the Heter Co. had been paid, that the
bankruptey proceedings be dismissed; that certain erediters
filed their cleine, whieh thereafter were paid; that, «itheugk
petitioner filed « cleim in the bankruptey court, he chertiy
thereafter withdrew it a& Celdmen's request, and es a result the
| ¢h ef cleime filed did sot contain his eclaimj that on
- 20, 1922, it apvearing that sll seheduled claims of
@reditors of the Hoter Go. hed been paid, the J. Ss Court dis-
imisese the benkruptey proceedings and directed ite receiver te
10 © the assets toe Goldman, sc receiver in the Girewit ceurt,
mieh wes come; that on Setober 6, 1922, im pursuance of am order
the Cirewuit court, the real estate of the Eoter Cee wae sold
f $69,006; that, beenuse of certain secured benda outstanding
aga! % the real estate, the net sum realised was net in excess
. $45,000; that mo order has been entered in the Circuit court
. mg leave ts Greditors $e file claims; end that petitioner's
im is for attorney's services rendered by him te the Motor Cow
. g im all te $2250, - also for court costs expended in its
nal: » amounting te $135.20, - alse for damsges to a Bethlehem
» model FF, amounting to 24604, which the Meter Coe “took
2 om or about Jume 12, 1926, and agreed to store for
r'a benefit, but instend of storing it, weed it con-
2 until Mareh 3, 1922." Petitioner's total claim, as
te * may for convenience be tabulated as follows:
_ Por professional services rendered to the
Beter Co. up to January 3, 1922 $1500.
For eszional services renderec thereafter
up to Jume 30, 1922 7S0s
4 court costs advanced 13.426
; ‘For damages to Bethichem truck, Model F, 4600.
ANE A ChA Era e &
iy Vine Re
fie dais gaixoeggs 22 meqe bomeisibuee .19b<0 m= me daar
wit Gost gbtag soos bait .00 set0t odd duatnpe emake botsba
sieishers Bhsiise Jags ages tant Ree rm 3
Karena La vtods 1olag gies. 9d tnesedd tolss coatete xtess te:
Urcone of gAtaes Yosquidinad edf of wists | beki2 vemelet
edt ¢iveet # aa bre ,~seeuger e*asmbied: acek seiatlagie zestsert
mo -tads gukaio. etd sleises dem S25 dehlt euiela.to eleber
Ye emseds belubonve Lie 01s palsooggs 92 ieyimyes &4
i ee
te
Nein Specie 4a We shies Ree Lael
heuer ahand mexEess Fags tes te _Sauened. *
RATES Dy
Gane
‘sescxe at Jon saw benbieos ae ton eats “seseden Ls ae ph gircntis
suwoe ‘thasox29 odg beg bozesas a6. eet = oe asks Bigs 2
ssa
a trenbit ivou taste oe domtase os2 bad e101 4903 es wwe:
ee
Bae ok
eel xeseit edt s sie ss Sevobner venience atpanosis: 207
ei gt bebasqes ef209 #209 702 cake - O8SS3 08 e? ifs at & oat :
muleldsot of sepamsb x02 seks - 1080888 oe Cy moe
; BEAD SEE VE eee Es
doo" «09 retell sit sokdw 190008 8 B cg eer ye o€ 2 !
’ tore : wes 2 eS
; tet ouose es deoame ‘ban Oxer ahh onst Beg oy ze a0
net Sa ae
| aoe $k ooax it patzese to noegaad Passed be Speer emo.
ae » ateto fates at xemoistees * wsnex oF
4
fe further sileges that «hem the truck wax received
by the Hoter Co. it was new and im geod condition and worth
sbout $4690; that it he¢ cost petitioner $5,108.95; that its
present worth is not in exevss of 9300, The prayer is thet
the receiver be ruled to answer, and thet petitioner be granted
such further relicf as “equity” may require.
and
@émitting the hsppening of acid court procecdings/alleging that
he had no personal knowledge that petitioners claim was *well
On January 26, 19235, Goldman, «s receiver, answered
fo G3" that ke bad been informed by the president ef the Hoter
Coe, ibe Se Ssumkoweki, that it hed agreed te pay petitiener in
rendered
petilement for legs1 services /up to February 20,5 1922, the
ef 800; that, ac to the truck, the same eas delivered to
Meter Co- at petitioner's request and fer hie accommodation,
giving it inmetructions to acll the same fer $1800, and later
' $606, but that the company did net sell itj; that it waz
tly demsagea”® while at the premiees of the Motor Co., and ig
Bow worth over $300; and thot the reeeiver is ready te pay
emount on petitioner’s claim as any be shewn to be just.
Gn the same day the Cirewit court (Judge Rugkh) ordered
the matter be referred to a master *for hearing end report,
with hie findings." Much tectimeny, including that of
e tioner and Ssumkowski and severel witnesses ealies by
' tioner ae to his claim for damages to the truck, “ae taken
» ® the muster, and the hearing was vonciudced during Aprii,
92 >» The tramsorict of the testimeny was, however, net returned
ate court until nearly two years latere
The pencing chancery cause of Emeisel et al» vs» Uraue
‘Sevkaver-wew Pound GF nade Fath goyscie” te " -
“gideew bee mod? ites 506g Bi Pes Coe baw 92 Ved" ni
B85 30s -qBQsSOLjey vanodJiveg Sedo bad HE Tadd 4
@adé aioseqesg od” soost areal ade valet HALT
natnaxg sé stanania aaa ban tite a tere Sole —
RE weesisheee eae ee bebege O00 of sit st
bets
eat ees 88 sgrsueis® 63 qa\eun iva Lbs 5 a a rae |
Rial ‘Rete sidss uxt sate —— oF of ea
Qi Bolies esssensiw Lovevea bud tilowe
sedd che giswes od9 Gf copes adt skal pare |
se san ea ea hn
betwee fon ,towevor yaw weet
Meter Cor, et shes had been assigned originally te the eclendar
of Judge Sush, %m April 20, 1923, the executive committee of
the judges re-nucigne? it te Juége Scanlan, another judge of the
court, whe conducted a lenxthy investigation as te oldman’: acts
emi doings us receiver. Subsequently the comuittes erdered that
@ separate chancery eslendsr be prepared of S11 causes (mearly 300
in nuzber ) im which Goldwan hed acted as reesiver and that they
ve @esigned te Judge Seanlan, who aece further imvestigations and
Summoned and hourd many witnesses. Ag 2 result, om Mey 14, 1923,
the court (Judge Seanien) entered an order reaoving Goldman as
receiver, and appointing im his stead the Chiesge Title & Trust
“" Which ig still acting as such. (See Sn¢igel y+ Uraus Motor
253 Ill. Apps 50, S2s Id, vy. Ic, 323 Ill. 452, 455.)
Gn January 15, 1925, on petitioner's motion, the court
7 Seanlan) entered an order that the master, te whom the
ition ha¢ originslly been referred, “file with the elerk of
‘ : Gourt within 10 days his report eof ths Sestimeny taken, * *
at 2 # 28pert of hie comeluciong ef law and of fact, provided,
’ ever, that petitiensr gay te the master hia charges and expenses
h have accrued in connection with anid reference.” At this
iB® Judge Scanlan evidently hed determines that gubscquently
er woule be a new hearing in open court upon the petition,
out regard to the prior reference. Petitioner paid the
’ r*s fees, ete., emounting te over $35, amd the macter made
rt report, dated and signed om January 22, 1925, and returned
to the court, together with the testimeny, which is
in the present recerd. <ithough it dees not appear
) to have been filed in the couse, it, however, was ordered
EBded with the clerk, and frequently was referred to by
sabonion oft ot wiseutgrse homgiose geod had oft
qe. entd lanes evicgoone adf ,cS0h 208 Liwgs 20 ko
of? Ye wehe, sedtoue .oainand smiuk of ah pomptsennet ms bs
gson otaunhio® of as maldegitawwt wituael # ¢ eet os!
oy aia Caner Mtaitiesth pe scbawine , eee _—
edd Ast bas vevieost ea betes & vad matte? sole at (secu
ee wamddageasdwed Oks Te? BOK ome eae linan® Lm os
eSS0L ahh yee we .tivess © 84 soca ead be yas fewest me
ge-sombic® gatvosst tebe a8 bezeiae (aninast opout ) ee
gauxh A ef823 ageotm. oda bopde eid at gat snsegE® Sam «roves
eit Si) aston, on sation igtse ot means
a pad ae
ee taf
oo 198d «ELE £95 ooBLo¥ ahh 198 608 ragh Af 43 08
sae ana enoisem atzanpasiseg me eB50L 8k xual 50 yore
meld gosie. 08 a tedaem, etd dads sohxe se Rowedne, (aataesi %9
e-dunke emg dye elit" .,borestes meas one. tdi veh
© > qasded gaeetians et. satiate
yess $e “seomete tet ntoe dite noiiosanos re be
eee fads segtaseieb bea. Rare
sdaan andes us etek es
ot douse summtinne ont mie sakbene bay ee
ssoqas fom aged 1b dpeoieis «bteoe% Fae
sodeirie gow stovewod ad! 999829. nd mk Et? aod ov os
<e od svar eon cismenge one stents ot 0
7.
:
7
=5-
Opposing counsel snd the presiding judge, ang treated as seine
@ true and correct transcript, om the subsequent hearing, which,
however, waa not hed until Moreh Ss, 1926.
Om the hearing petitioner testifics in his ewn behalf
as to thet portion of his claim for atiormey’s services, in
Which he was corroborated in certain particulars by the testimony
of his witness, lL. J. Leon. ie alse testified ag te that portion
“ the claim for damages te the truck. ie wae Crees~-examined
a Great length by counsel for the present receiver and the
Previcing Judge. It appenred from the eross-examination that en
Marek 31, 1022, petitioner filed «ith the referee in bankruptey
in the U. 5. Court the following claim againat the Meter So.:
3 Ze bill rendered for professional eervices te
Janucry 3, 1922 B1G5Q6¢
Te court costs 2évanced Les
Te damages te Bethelhen truck, Model F 28006
Total + = owe $4915.20
it will be neticeé that the item for services azounting
9 iO, as contained in the petition, dees not appear in
er's claim as filed with the referee in bankruptey, and
: in the petition his claim for cumages to the truek is £2100
uiees of-hie claim os filed with the referee. Petitioner
testified on crese-exeuination in substance that
Ome week after he filed his claim with the referee, he
its thet he made thig witherawal at the request ef
the atterneys for the receiver, Goldman, and upon his
al Promise that he sould see to it thet petitioner's
Would be paid, after investigation and order of the
mi Court, out ef assets im the receiver's hende; thet
ef $750 for attorney's fees (contained in the petition
im the claim as filed with the referee) is for
) gai gatebea® cov ttm 8s ee
hated gwo oid wi se2hbsaed gene tiizeg paissad: etd BO.
gk ,eaei vice atyeriests. set minke. eid te: coin a
~uomissed oid “a ereiusisiag Bieesee. ak bade
mobixeg dais of an aokthtesd wale eh, cmeedek od meenaieci ‘"
-Bontaaxo~se6us. ese eM . fous? aed 08 aogonab vor state oda
dt eqs soviooes daosea od? 40% Lonnuae. ee atte, fang.
ue tesla mekisninexe-saove ad? ao1t boxasqaa: 6 saab gutbine
weeartined: ak eaxeter off déieoboLit wemods lds 828. it tae
tee mato std sembege abate: nienaand og tue “ ee
e6.580R8 lowe eee) Rate: as be be! eat = :
pai snsesss: ‘gostvans s0l eset odd teddd pesteen 06 the 4 fea
mh useage somnse® weoigideg ad@ mb Seats
essen ee peretex on¢: eae wuheele
Soaks ab tonid. sat oe auganinb ih ahaha ae
bs et wow bas bos amatae vevvinons:oas ne tO!
-6=
services which he rendered the Motor Co. in endeavors to keep it
out of bankruptcy; and that at the time he inserted the item in
the petition he believed that it was one properly chargeable
against the Motor Co., but that he has since become convinced to
the contrary, and that he is “net now insisting upon it." Being
pressed to expizin why he had increased his claim for damages to
the truck, he further testified in substance that when he first
Saw the truck on the premises of the Motor Goe, after it had
been used and damaged by it, one Ryzskowski, an officer of the
company, informed him that the company could repair it, sell it’
amd get $1500 for it, and the witness directed that the company
repair and sell it but informed Ryzskowski that he would claim
damages fer the difference between the amount obtained at such
ite and the truck's fair value when it was delivered te the
company; that the company did not repair or sell it, and the witness
‘finally took it away and ascertained that the damage thereto was
‘greater than he first had supposed and that it practically was
Ss; that at the time of filing the petition, claiming $4600
» he believed that the amount claimed was fair and proper 3
that, meither at the time when he agreed with the attorney for
| BR, receiver, that he would withdraw his claim from the bank-
ruptey court and file a claim in the Circuit court, nor at any
ub Quent time, was there any understanding between petitioner
| n | Goldman or Goldman's atiorney, that the claim to be filed in
‘the Cireuit court should be higher than that filed in the bank-
court. As to the value of the truck, when he left it with
| ue company, he testified thet he hed purchaseqit, new, a few
: 8 before, for $5,108, - paying $2000 dew and giving his note
balance, which note he afterwards paid, and that it only
en driven about 150 miles and was in good condition. He
testify what its market value was when left with the
a
$i qosd od auovesbas ai «e9 tote edi bexebme ed deidw seoiy
wi medi edd betzeant ed emis odd ig Jet bas iyedquedtusd 20
eideencnite ‘lssqoig omg aay di Jedi bevelled ed motiizeg.
ot Soomivaco amoesd somic asd si dedi sud 4.99 setok.od? ie.
guist “.i3i mequ guiveiani wou des" af ent Sanit SMB %
es eegsmsa x9% aielo gid besastoai bal ad yaw. iste pom
daxit ed asdw Jedd somadedue ai beliiiess 2eddiwt od -etoutd |
basi Ji tefte ,-09 rosol ot Yo seaimerq odd mo dousé odd
aad To tsoilte se .tdewedesyi eno .tt yd begsnsd bas deem a
“$8 ifea .ti aisgex Sines yasgsion edd geds mid beazeini «yma
qaaqsos ed? ded? befoosth aaemiiw sid bag _tt ro? OO8LG gop
aislo bisow sa edd tlewodesyi bowtelat dné gt ilee bas the
fosa-te Seaiside tavoms odd sesadad eomozeTiis edd xo? a0ge
oa? of borsvifeh asw #t aedw ouisy xizk atious3 ‘sas bas $
anemsiw odd Sus efi {fee 19 theqs< don bLb ymsqmoe edt ‘tedd ive
aew Cieteds egemsd efi tard Semtsiteses bas yews ot soos Wis
enw ylissisosiq Ti teds Bee Soaogque bad taxi en a * te
OG3S$ grimisio .woisiseq esd galt? to emid edt ga Jastd gam i
Para)
| peqezg ons tist cew bomtelo tavoma odt sand beysifod od. poge
toX youtosss esd diiw bootgs ad modw omis od te tandtion tad: j
~aaed eft movi sisio elf werbddiw bivow ef jag’ ,tevieoot
Yas se 108 .smu09. $tuext) esis Fs 4 mista & efit bus 5 ENGO
resol? tog needed aatbastexobay ‘se oteds Bay, vomit , Jas
"mk betty ed of wile eds gscld ,yomtos ss. 2 'nasthLod (30 Be iD.
winsd ead st bert? sats seid _sedgid sd bivede 5 Aaee dixe zk9 |
déiw 3k ster et moe woud os? Yo oulsy edit of sh .dme
wet s went :tboeato we, boat od dads bektkiaed ed.
eter sid paivis bas web 008% aatveg - | ¢8OL.8¢ x92 Ob Lr Be
vine ¢f tadd us bieq ebemrreats ot stem so itv <oountad se |
oH snot zones boon a Ee SANE tuods mevith asod)
tee Bethy ax ‘ims | RS Fed oe
ait is bw tel went: aay " shier Sodtam ee vere °
=-Ja
Company. ©n the hearing before the master he had produced as a
Witness one “inter, a dealer in motor tracks, from when he had
purchased the truck, anc who there had testified ae to ite serket
value. ie also there had produced az witnesses Mra. Phillipe
and Jobm EKoleki, «ho testified as to the condition ef the truek
When it was left with the company. These witnesses were either
oat of town er could mot bo found when the hearing was had before
Taige Seanian.
| As to the claim of £1500 for attorney's services,
petitioner’ s ewidenee disclosed im subetence the following:
“That early in January, 1926, the Hoter Co., vy its president,
& verbal agrevment with petitioner whereby se was to receive
a annus) retainer of 7500 for atterney’s services te be rendered,
‘for advice, ete., end was to be paid additional compensation for
e: wices in court and for time expended on apecial matters; thnt
: o the rétainer for the year 1920, he @as paid $500, leaving a
bal due for that year of 22003 that in the latter part of
2621, this agreement as to payment of « retainer was ean-
fs lesving then a balance due on euch account of £367, «which
unpaid; that petitioner acted es atterney for the company
litigetec cases, known ae the Gibbens and Yisconsin Lime
| ? + cases; ‘hat in the former he performed services (detailed py
pet tioner) which reasonably were worth the charges he made
the f. Viz, $200; that in the latter (so mechenio's lien case
& meter and eftervards befere the court upon exceptions)
6 many appearances and rendered legal services (detailed by
®) which reasonably were worth 8500; and that he com-enced
Om & bomd in behalf of the Heter Co. aguinst a bonding
y under on agreement that his fees therein showld be con-
Upon a successful cutcome, that he advanced costs te the
#82 dooubesg bad on regecn add sxGInd getseed ela oeEeg
(bad ef ainaie moTk ewlowr? teseq ak coLasd .radehi-omo: asea:
segiae BFL OF we aethienes wed exacts ote baa tems ede are
|, SARLEREE sani sasnendte am Sensharg bas exedd gale cal seeut
mews ode ae soliLeaes sd? o8 ae bektiees’ ode nan. .
2 soldie etee sonaaiiin saad? «ymaqsoa exit sede fed uae ah oa
oxgted nat a8 pakzeod eas medy poue? ad Jen Aiies xg awet te : . a
a anscivase atyeatests sat 0845 te sbake #9 02 ea nace
igeivelio? eds somededue 6) benelouln sonpbive ation
_ iaebteone att ve 000 430% ad2 «MOL, sctaunel ak haa
eviever of sum od \Seredw cemmdelaey sidbw smamerye Endsowe 7 2 2
ebhotelmet ad a2 geebvive & gems sae. wet BOER te ‘wontates, couaue 1 as
"6% Als oreo faneiziobe tieg ai od ase iy nats stelvhe | .
“Ande jesesdam Selous mo hohasgre emi x0) ban sme mb ase 20
8 satvonl .005% Shaq enw en .098% aaey ahd 10h xankeget ade 3
Se aay setted osté i dade 10066 Ye qey doris 10% eub a sadn
fay sou temiases « Ie smmenyeg oo ee driegoasga alse, 8k
Hodis .892% iw tmwecne sosie oe oub Sonniad « Rad yakwanl » !
ARES ace <6% Wereiss en bedow noneiss tog deat. ‘i bbegen .
_ Mail shemoseis bas aged kO eda ah som «sence Seammleet ont
“i SeLiatss). soaivres Samreliag of resEnet od pel done ‘&
obese od aoynasio salt Atzow ores eidenencen sige {
sane soil eTetaadonm a) wesdel onli st Jaci Seven. ehe®, 3
(apeisasaxe Hoge, seo sdt exe ted, abtswzadts, fan ofan
‘oa Selteisa) ago Lytae > Ae sousaaes, Ae, 2G
*8-
‘@mount of 2135.20, whieh mever were repaid te him, that the suit
@ae afterwards turned over to another attorney for the company,
ané that he dees mot claim any fees om account ef cerrices rendered
im thet quit. The ageregute eum of these item: is $1,080.20, and,
ae the nex receiver introduced ne evidenee “hatever on the hearing,
We ore of the opinion, after reviewing petitioner's evidence, thet,
as to that portion of his claim relating te attorney's fees and
@0ets sdvanesc, the court shoule have allowed the came ac & clain
@seinct the cetate in the receiver's hands te the extent of $1,080.20.
Gear the clese of the hearing petitionsr asked lesve
to read the testimony of the three witnesses, who as above men-
tioned had testified before the master on the prior reference as
te the market value of the truck when first received by the Kotor
Ge. and its then condition and its coméition after use by the
‘Sempeny. Upeén ebjection the court denied auch leave, and, upon
1 pitioner persisting in nis motion, the following occurred:
f THE COURT. I will mot aliow teatimony of amy of those
Be witnesves that were taken before the master te be civen
ie om thie hearing.
L GR. ST. GEGRGZ. Those two witmesses were avorn and they
i? testified im the same proceeding, snd I don’t knew why
le sds god should put me to the expense of having them
& here.
THe COURT. You seem to have some difficulty in understanding
me. i have ruled ang that ends it. * * Your motien te read
the testimony of Hrs. Phillips end that other witness given
before Maeter Doyle is denied. *« * The court is net satisfied
that there esa a effert made in that preceeding te
represent the extate wili not sllow that testimony. I
motified you of that three days ago and you asked fer time to
get these witnesses in end you have had a couple ef days now.
* * This matter was calles for trial three days SfO0 * *
fall your next witness.”
Whereupon petitioner called another witness, whe briefly
s amd petitioner, agsin taking the stand and attempt ing
) testify ua te certain conversations concerning said truck, had
ome Jnnicki, engineer and assistant general mineger of the
Soe eee
eee
HE
rae
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Sie SE
Oe ee SO Oe ey
a eee
Yt SE PRD eR eo
SSS ee IT IL an em es
ene re xe Ba i aah a
a’
*
ee
ous od3 dai? ,mid 04 aiegon $228 toven ‘dotde 08888 Ye —
ees. abe
< Gages wif aet vyewtezéa teddons si z8ve baernus shrowiadie s
Reqeheet eecirzes te dauoses Se eect rte aiade doa e009. od ‘todd :
mis 408.060, 22 of weed) ogadé Yo ave edegetsgs ett ‘tise sad
< is eee
eueiteed edd ne sowedate semaive 62 beeu sosdat xevisoss weet ot
Fra ae indy
edasts soomedive e*someishing pabwekver a98%e sobaige | ’
“baa soot efysarodds od gabselex misis old Te ‘Gebieeg 3 $eas od
ree
esiemnpihewweptiniepecteret
+88. 060,2¢ Ge Suedzy add vf shusd e'xerleost of@ at otates ‘asta genie
avess pawas ease ds 32% paitood ‘ods te sols ‘eds 200 ee
wile seeds an ane’, casneoms he soudé eds ts womteaas of odd hae
“ga eemeieios misq anf ao “todase ‘aut exstied ‘sabtlzoed ‘hat to
wesell oatt WE heviooe: dex 22 nedy Howrd até to satay settam ot
Ph ip BOSSE eh
es x een zadte els ibee9 ‘a2 baa neldinaos aad ast Sas +
sean xb seth ve s
noge ban estael deus bekeed ames ont nettostse mag ee
b setursee galvoile® ott eso tsoat okt wt gubielarsg sreseseis
. ound? [wks te Gienktoud whtin ten thee t .Paueo 2a
eevis ode! adams ol) ec9Y00 ahsiy oxom said” apenas ie
» ees ana weil
aovig agendiv sedge gad bese eghid iti
ape sea al or ain ® # ee ee
e? aeeaere 3. obra Fists .
& eymemisass suds mg on 308 Hm er
o¢ emis cet Seiden sey bmn ow egskh eapas-
ono _eqab te aigzes 2 bad erad gey See ai
® * seme syad eentt, sabes. we? seiies. ape.
ee etalk: anes <=
heal dour? Biss yatexoonce
bh esis Yo cogsanm Levene imedelous bas woomigas «
Motor CoO+e, waz mot silewed to testify ac te them, and upon the
sole groumc thet any statexents wede by Jonicki were made without
| Guthority of the company and net Qinding upon £4 or ites receiver.
GE. ST. GEORGE. Hew, your Boner, with reference t@ the
value of the truck, I suppose voumsel would ebject that
i seule not be qualified to tcutify us to ite value, so
i eek that I be given Opportunity to bring up the witness
who would know ite value and saw it at the time. I an aot
preparec te do that now beesuse ef the fact that I alvays
had the impression, thouzh the court seems to think i
should not have it, that I would be allowed to read sone
of this testimony.
Tas COURT. I have reled in ali these Solémen matters that
i wouldn't eller testimony given before masters during the
Soldman regime. *“=* fe found menmy ef those were
soliusive, and I am just follewing out the rule that I have
_ Used Fight slomg im all these esses. It isn't in this
particular cusez; it has been in 6li of theme
BR. ST. GAOEGE. I would like ts Rave time to call A. vimter,
who testified before and she knews this truek. I have teen
unable to find him but I think I ean, if i get a few more
Gays. iI was umable te do it yesterday or the day before
because I was engaged in « trial.”
Thereupen, upon objection by reeeiver's counsel, the
eemiec petitioner's application fer « eontinuence for the
pose of procuring the testimony of said @itmesses, “inter and
Phillips, ssying: *I am Just finishing these Goldman claing
‘hie is next to the lest ene and we must go om. (all your
x witness or close the onse.*
Mh. ST. GiORGE. Is the eourt aware of the order entered
_ 4am this case for me to file this recerd before iagter
~Deyle? ne to the order of January i5, 1925,
3 oned
THE COURT. Mr. St. George, you have made that statement
here in the preliminary examination 2 number of times. I
told you that we had stepped all the assters from anking
on claims that were being heard by masters at the
time that Goldman was reesiver. * * * i stepped this one.
You came befere me and asked for the privilege ef writing
it up im this case. * « * 1 told you I had ne objection
_ te your heaving it vritten ap at your expense. There wag
| &bselutely no understanding that thet evidence vould be
| Used on this trial, * * « if you have « witness, put him
+OMs let's finish this mtter.*
add moge Dame quads oF oa yticees of bowtie: seit abit (ine
éwods iw sham ere Iisimel qf sham etaemedage wee said bm wn al
etevieoor afi so J aege gatiacid tem hae yaegeee ny s v
sbetiwsee paiwolie? add ,
om ©5 -somsustoy Mo lw: sOuct sw0ey pwek .SeHORD 6 TS -
tad Saeiee Siwex Lanmuqe oanegue k gxouz? add te cufar
Om yauiay sf2 02 sa Yliteo? ef teltifiagp ed gem: aivew Bro
eeensiv ed? qe gmizd 63 yd lave coyge pre 3 ed I gad? ges I
Son am i cemit sts ta $2 waa sms. sndey's Sey pee:
Sunts l badd Goat olf Se sanuned Gur Galt 46 of Siz ;
az 4 doddt of umees iayoe ods sounds amp De) ye
anes Anes of bosnite od binwe X dadt 505 ovat ‘eet
of
gals gueéian cemhiet geod wi bokws. eyed =.
ais sxieub axvadcau sagisd oa wouliaes we
sh etas geod? to. ymen.tewot.s¥. * *F
evad i Sad? eis ofd duo guiveiie? jeri, ae .
pitt Gi t'mai 23 .geace gest ifs ab eas ae
mei te iLa at aeod ead 32. 4989 Ss
<xednt® hte 63 ants oyad ee exit hluwe — goat ay. sae
fees orad oXepu? 2 jc ape
gen wh = ar ; i sbazsacr. Rit . igi Eee
Steled 7 g ai & 2 ons aed
Ser -ioenese a vevioves es aebsooise bese ieee rey.
odd tok ‘eoneme tage * wet uni senting = eneen bee balaeb 3
as See Ree B
bees soamty eaousensiv hice te <monlieos ond pabuswery ‘to
eatots mesic ened? gadde tat feat, ae E™. Saaiyae 5
we REESE ESS er
ge¢ Pis0° .ho ep gume 6 owe one Soak odd ov sxem wt wks R
ert
pe Ee RE ee: Seared lee ag
: aipestace hatin: bal: 2p tke eee :
+ ae ezetsd Hteexy eite SFE oF be to’
OF ate: Wns to eee x,
-10-
Upon petitioner eteating thet he had uo other witness
present, ané upon receiver’s counsel stating thet he €ié aot desire
te intredace any evidence in ite benalf, the court ammeounesds
“The cave is closed.“
The heating consumec practiesily the entire court day
of Hareh 5, 1926, but the orcer appealed from, diemiscing the
petition for want of equity, wse net entered until 10 days later.
The eertificate of evidence diccleses that om Zereh 18, 1626, and
before esic order was entere<, petitioner presented ta the eourt a
| so-called petition, which is in the astere ef an sfridcerit suppert-
' hile motion fer a continuance, and aseked leaye to file the saumes
petition ize signed amd verified os of March 6th. The court
denies the motion and immediately entered the order appesied frome
‘after reviewing the prezent record, and considering the
: tne and circumstances disclosed, we axe of the opiniesn that the
| ft, aa regearés that portiom of petitiomer’s cleim for damages to
ihe truck, erred im refusing te gremt a reasonable time to petitioner
be procure the attendance of the witnesses, A. inter, Mrs. Phillips
| febm Molski, er, if amy were beyond the reach of « omeeun, to
their cepositions. fetitioner's evidence sufficientiy
that he was entitleé to recover a considereble sum for
jes to the truck occasioned by the unwarranted acts ef the
Co. The testimony of the witnesses referred to, taken befere
Baster on the prior reference, afforded seme basis for da7i-
éetermining the semount of the damage. And we think, in
ef Judge Seanlan’s erder of January 15, 1925, that petitioner
warranted im believing that he would be allowed te read the
| timony of said witnesses, so taken before the mister, on the
as u hearing, and that, when the court ruled to the contrary, he
| sound iw aadte ‘ex bash ed adv ynisete aedtd a Gulf dogs |
ettash tom BIS af ‘Gest gakreds Loonies *esvivoot aogh = wed
theowietes Swoo ed Uinded otf ak eomebive vin eebte
*.besels ‘ar
Mab Five otto ods Eleotdoosy eid gattoad ext pe
sit: etctent seen Sateen ear site = eo
seman. ass ekiz ad. awash ss 5 stenisal Jae :
dane od? “888 decel Jo ax be Lidaey sas bommbe st
“MOTE helena Teds 982 bexeiar “sdatboamt bmn wonton wd 5
Sg “ies PEP we
ores galvobisnes ona sbresen tuaseng site siiaatves eRe a.
oss tant 26 kaige ek Ye sts ow yhseolents eonstocune ie ban ade i
ao sogeuns xe? atnis erametsteeq Ye sorry oaeie abuagen oo he ;
wemalsioeg ot omia eidaer set & Jagex of aslenter ai bores yenty
eqLifhK saat .rode2™ <A yaeoonzty ent2 te eomabaedsH Sit!» .
ae sasnogiere: 2 te deeb 24 bnoyed ‘suo we nd lhc £
ced maar berneter ‘seonbadbv bpm te fp Pde con,
“h26b 202 akesd capa padres oh 7
SS Ames sv ba a .
soap idlieg, add seat at
ond Sar, 50,
-ll-
was entitled to « comtinusanee for « ressanable geried, se that
the evidence siresdy heard might be supgleaented by the teetinony,
either in open court er by depocitions, of sald witnesses on the
@uection of the «mount of damage deme to the truck.
the main camtention ef counsel for the receiver, relied
upon to sustain the action o¢ the court im ¢ismisaing the petition
fer went of ecuity, in thet petitioner is met entitled to recorer
@my sum for the reason chit he come inte es court of equity with
Whelean hends. 1: is argued tht he wauw guilty of “reprenensible
conduct in connection with hie claim, comstituting a fraud upen
the court," (a) im that he withérew hie filed claim fram the
referee im bankruptey of the J. 5. Seuri, amd files the present
fpeitie im which he claimed « largely inerecased sum, and (b)
rs that he withdrew Kise claim from the batikruptey court uader am
mt with the ettormey for the receiver (Goldman) that if he
dé go his claim would be taken eare of and paid out of the agsets
: the estate in the Circuit Court, and he failec te dicelese,
ither to the bankruptcy court, er tothe Cireuit court in his
ot: tien filed, the fact of ithe making of such agreement. Ve
et agrec with the conteution. *e é¢ not think that the
aj record discloses eny reprehensible or fraudulent conduct
le B the part of petitioner. Counsels' strained and unwarranted
ea, many times regeated im their printed brief and argmeent,
sonatitute proof of such cemduct. «nd ve fail to find any
@, when petitiener ai the request of Geldmun's atterney
| hig claim from the bankruptcy court, thet any improper
agrecment then was made between them or subsequently
to be consummated. As te the increnses mace in the
k it sufficiently appears that the same were mag< in good
Furthermore, petitioner's claim ig im reality 2 lay
Sats of gheiteg sidemoenes # tot souk liaee & BS bab dite
eyneaitess aziz we podmousiggas ‘oe dete bas breed ebestts soushs
wee 0 nsenscd be bhte Yo come lileoges ys ze $xueo sege at
stlows2 edd 62 ened epansh te Saveur oat Ye '
hetiet yxe¥iooss od? set Lansmos to ne isassaoo when eat”
woidtdog ‘exis guise tan ie ak su90 oid io netdos te aiatewa ote
ereeet ee ‘belsices ten ak songtd ifog sods nt a wtihes te sac
dake ge iaye te sume 2 Sixt sme oe foals nasser ott wets we)
oldhanadeuyex* Ye YsLlwy caw oa Srsts nemgan ei ti -ebaad seed
—— beaxt 2 pabiud téames wutale aaa dike mpeerietie aL oak
| ed mos? minke bath? aid wexbisiw ed sedi ak ts) "eas
hacienda ps veke® iets 12 aMes oo 2B eae le wvquadaed at 4
Beep tes
(g} ome are sesnongut elegusi. a pg Or nel stodete mb
nS, ai 8
| a cohnw fa0s egatined oc) moss minke oi wexbidiw oa d
ed 2E aasls {esr Lob) asvlouss adi x0? wesossa sitd abe oa
Pash zs
ret
ee
Di ee
adoass ed? ke ia hioq bus Yo ors9 msde? of biuew
conefeais ae Seita’t od ana siti08 ‘dtmotk® ond ak ‘edases
nis at S08 Siwoxid eat: os xe «twos wesquraaed sald et
: 8 -dsomssage cose lo gaislan off Ye goat sid soars
a ‘edd fads Matas ton od 9¢ smotsnotace oda dite
tennaes sno iubuext 2 odienodenqor yas easoindte pxeger &
‘qua bait of ‘fier os ah . dewbaos ‘oes aisité hind ledtiecanie |
- xawrres és ‘elasmble® Ye dewwpsx edd aa. aemeks deg wet tiene
seqeramd yas gudd- cose es a tats ia waked
-12-
@laim ee distinguished from an eyuiteble ene He seught the
recevery of certain attorney's fees claimed te have been carned
ané certain unlijuidsted damges ocensioned to petitioner’ s
aute truck by the umverranted acts of the Meter So. smi we do
mot think that the “anclenam hands" doctrine applies. Sut even
if it whould be scensicersé aa applying, becauce of the Piling ef
@ petitien in a pending equity ecuse, wherein he prayed such
relief as *equity* wag reguire, still we do met think that the
@ectrine should silitate sgainst his recevery in thie ease.
MSG, 202 Ili.« 593, 597, it is exid: “He whe
@omee inte « court of ecuity must come with eleen bends ond ons
who does iniquity cxnnet beve equity, but thot moxim is limited
im its epplicetion to where the substance of the thing is in-
| @quitable, and the inicuity must apply to the perticwler subject
matter. It is not sufficient to bar relicf that inequitable
conduet should relate te the proof of some item or some fact,
| and where the orizin of the claim is not inequiteble s fraudulent
| act im relation to it will mot var relief." (Sec, alec, Fagan
| We Beotberg, 320 111. 536, 594.)
ie: For the ressous indicated, the order of the Circuit
appealed from, wherein petitioner's petition wan dimalased
ie want of equity, is reversed, and the cause ia remanded with
| Girections that, ae to that portion ef petitioner's claim for
“Attorney's fees and costs expended, it be allowed as a claim
| age t the estate in the present receiver's hands to the extent
| ' $1,080.20; amd that, ac to that portion of petitioner's claim
Gemages to the truck in question, there be a new hearing or
end further procecdings had not incensistent «ith the views
in expressed,
REVEREED AND AGMAMDED CITE DIvEcTions.
oh and Barnes, JJ+s concur.
ods dgguoe oh =. 9 2idetiuop Ha mest bodekrgateels em chs
‘beatae Heed avad os Semkato aaet s'¥satedée mingsee Bo. us
a*toueis Meg o¢ Senelesese anjamed petsbhnption ataseon &
Gb aw bee .09 uetok of? tg stoe heduextamm odd. yd donna :
move gud, .seilyie entusood “sbmed macivaa” of sadd tubds &
38 geil od¢ be sence? .gaivicge we bereadenoe ed Aluagia,: 4
dows Soyaty od miesedw yeavee Yiluye peibusg # md me i:
ods 22883 Said? fom o> ow LEbde youtepen Yam “slope” we Tobke
+8oa3 Bids gl qreveoey aid danings sdesifia hfuode: aia
cqsie oH” shdwa ef 22 qT@2 (888 .££L. 508 : -
eno Site abasst aene dite enon énum ystupe Ye too.» osm
bedttl ol aizer tad’ Jed yylupy ered seneideliiintiel
~tt ah gudsit elt lo gonadeduy gis otoce o3 salebenenctitesar:
gsatdwe tweiwetstsqg od? of vSqqs comm yshwotal edd bac. , '
eldaéiupeat ges¢ siker 8d af seeles twa fom oh at. «
-ion? cues ae sedi omega to Joosy e639 of txts. biwede da:
sesluieoe? a addadémpont som-et shake odd Ye ahatse odd ened
Bene) genia 008) “,tekiog: ing som iLiw #2 02. settalox mi
| (808 4580. .£53. 085 cauediees «
StuozhS ef Bo tebte eff .hedasisel eaegags ed RTs ne
oecgiaess aew aclzideq a ramelélsog siorede a86rt boLaegga § 0
sie bebuemox at sauen ad hes sbosteven af «xsiure. to Ae
. 90% miele s*teaeitigeg te sottxoq fads, ed a2 stats ‘nmeldve ui
“miele @ se dewalt of 2 shobasgae afta, sic erbhs ati 028
Seedae ef of gomad e'ssehvsot Sneseug. one wk etedaq od2 @ |
aisle a'rpaaléaiseg te 624209. dedd 95 om gtadd bee GOs!
ao gibieed woes od onedd. aia —
evely add Sow daadeismeont Jon Sui anakss
eee Litgesektiee 2h mae
(ebet wtate a eames’ sngumedrre ae
186 + 31328
JAY BTOUGH, CORNELIUS J. H.HAINGTON,
4
GEORGE F. CAROLAM and CHARLES E. Loy, jj}
. rtners unger the firm name of } APPEAL PRox
» HARRINGTON, CamOLAN A LOT, }
Appellees, ; SUPERIGN CUURT,
é
¥e COOK CoUNTY.
ERSTE BH. HABAscz, |
Appeliante /\
th
| Me PREGIDING JUSTICE CRIGLEY SLLIVERMD THe GPIBZISCE oF Tm: cogRT,
Ly
te recover the reseoneable value of atterney's services, claimed
| : im an gssumpsit suit, commenced Eovember 25, 1924,
|
have been rendereé te defendant by one of plaintiffs’ firs,
“Gay Stough, during the year 1924, a jury returned verdict in
Plaine iffe’ faver for $1256, and om April %, 1926, judgment
was entereé upon the verdict agsinsi defendant, and he appealed.
. The declaration censisted ef the comzen counts, supported
pen affidavit of cisim in shich the «mount due wee stated te
be $2500. On Boevember 6, 1924, Plaintiffs: remiered an unitemized
, te defendant, ae fellews: “Te professionel services, 21250."
a ite receipt d«fendant refused te omy the bill, upon the
#8 them statec that the amount was exceavive and unreason-
le, and the present suit foliowed.
The only question fer our determinstion, ss we read
present somewhat lengthy transcrip: of the evidence, is
the werdict and judgment ore exeessive, ae urged by
samt’s counsel.
rier te the year 1924, ané while the plaintiff,
“tough, ease acting se an seciatamt «tterney for « Chicege
| of attorneys, he and defendant purchased jointly certain
estate for re-sale at a subsequent time, and the
eNO TORT LEA ULIsRN00
+ SELGaRS bate
MONT JABstAa to omen sit aa xoae ax
hoa: eXGd & RAONAD . HOTS
Te 25 HOT asata - eeoelloggé
-¥iageo x009
las = ra} m. a2 i. & 4
&G OD «fhe bag DG: etmabdone
ages SUT Co MOTEIGO WHY asaayritc TRL sora ouctaaa
0 RR Ss ate 5 eee
“—bned 988 sndeevel, bepue.uaeo > gol atemewny ae a i.
hentnce qungheson , s*yearesss ‘gwSst 0h ne add. ois
carck t Jathitmteia Ye ane x tanker tes oz boranaen. med een
if ai toboxey a bemsudet it a sBSOL xem, ont pekcad wsgar085
a ‘arog, aces 8 Lizgs so bam 20Bo£6. 0%, sor? 0% ome
sboiasgaa Sa bus 2 imabpeted senleges dolnaer. ong: Og
nud xoweare 22409 someon od? Ze p mond a
| Of bevesa sow aud smuome, ast solir at malo te sbvabhiie. ta.
bea tmes ine me doxebnet etitvatsly PSL 28 aeduove a> 0088 *
*.088t¢ aetolvrse. iscolesstexg, er? ‘ tawolior ae sdasboetab ee a
ods moge, +iad¢ ods Yay OF poawtes daehaotek telson: atte
~moepetm bane ovinasexs, Sey Jamo ote —_ dheeteaes
ae
purchase proved ultimetely to be a profiteble venture te beth.»
‘Im January, 1924, plaintiff, after about four years’ experience
ae om attermey, formee the sisintiff fire, and from time to time
thereafter and until Gotober, 1924, <cfendant consulted him pro-
fessioncliy on certain legal mtters arising in connection with
@efengont'e business and hie persons) sffaire, and pleintiffs
imstituted three suits in acfendent's behelf. ‘pperently ne bills
for services as rendered were sent te defendant. tough claimed
that defendant seversl times requested that the rendering of bille
be deferred. Defendont demied this, and claimed tht tough
, wal times told Kim that, if the real estate venture, ag to
hich they jointly were giving some considerable time, proved
he iteable, he (ccfendant) aight *forget rer the fees." Suring .
oe Ey 1924, Stough, individuslly, imatituted am action ag-inat
c : endent for the partition of esxid rexl estate. This ection dia-
pleased defendant and resulted in the breaking of their former
y relations, end subsequently pleintiffs' bili for services
mentiencd wae rendered, which, ae “tough tertifiec, wes
“on secount,” although it deca not om ita face so purport to bee
Steough tectified in detail an te the legul services
ia on cach matter, stating the number of hours consumed
him, the charecter of the services, and the results obtained,
| He claimed the value of the serviess te be over $2500. and
' Chicago atterneys, basing their teztimeny on thet of “tough,
te the charccter of the services and the time consumed as
» testified as experts th=t sbeut $2500 would be 2 feir and
ible charge. Prom an examin«tion of Stough'’s tectimony,
fT, we ere impressed with the facts that some of the matters
to are ef comparatively minor importance and the charges
therefor are unressonsble, and that im othere most of the
sided oS oussmey eidaditexrg « od od yisdemiiin covess.s
eonelasgxs ‘atosy tel iveds tetie «Tibsmialg .aSOl ee 8 il
eh 2 od emi? most bas. garit. Pitenialg edd deaxet 4%
-o%% wisi Sedivestion Jasheo tos ebk@t atedespo fits —_
diy Holioexnes ai gubaiia exaddem Lagel ainsise ao
attismisicg ban ,etiatie fameeicg ald. San gadeiend ks
eigid om Yidmexagg? + LLasied o*saahas toa ah atina ood das
bembals dgeod? «daebnelted 92 deen oxew hevebaod we siaiate.
abiie Yo gatvehest of3 Fos bodeonpet gamit Laveven Patek
Higwoge Joel? Douiate bast gaksd beine® daranoted .peszeteb
ot an eOIINSY ededas Leet eats x sods. at hos peaks fers
beverg, s%u23 eidersblenco ames gaivig stew eisiet 3 ; od? a :
_ Sank eae *-asek ex! sucde segro2” siipte Sigin (Sanbas tes) 2 aplns *
fastoge woizos Sal besus teat eeifawbeytint elgg: ade oa ,
ais mottos abt +ogetee inex aise 3 mks biuag, < coeur bake 3
t0axe% ahedd te sniasend eas at betiuser ame. , Smaeagpee I
; asavso8 vox Lf2d ‘attidntatg Usmonpondsa | baa nokts fox x<itesed
Gav holthsesd fguods aad pupae. ebetopaer 8 nav P 26 3 ¥ v0
ood 38 teem o seat Bae a tox ween at daneds is pte : a
eecivios Lugel oat a? an Liason nt palitinet 4 ast Pee “af
bouwanos waned te odour aaa eitigese » sta, s , 0 :
<feeksiite eéLanex at? Sits soolwiss eae % ratowsade | ods
Bene = 00888 seve od 92 seskense ed 30, outer ods, pomtnt
aes
ey om
tne ata? + of bine CORSE unde dad? afmeaxe- an,
eyo hs od s"dauose %, micas | aa i ae
ered dos ais % ones. oft
nat
Pe ee ee
eds 20 om erode at ‘dete | oma age Pate 0
UR ¢ te Foray Ree =. ind cman sw a
time ¢laime< to have been comeumec thereon was unneceesary, ané
thet im ethers, for which large charges are made, the reoults
lof the services were ef no benefit to defendant.
There ia no quection But that Steugh rendere¢ some
services for which defendant should pey reowenable feea. But we
| think that the emount awarded by the jury eas unre senable ané
“excessive, and that the judgment should be reduced by a remittiiur
@down te =3 “heat was said in Haigzh v. Mumday, 12 Ills Appe 539,
1649, 4s =<pplicsble in thie ease: “the general rule is well stated
im Eggleston v. So2rdman, 27 Mich. 14, to the effect that the pro-
fessional skill and stemdiing of the persem employed, hig experience,
| the mature of the controversy, beth im regard te the snount involved
| @Mé the character and moture of the questioms raiseé in the cxse,
fe wel) ae the result, should «11 be tuken inte sonsiderction, in
fixing the value of the services rendered.” nd, as te the
testimony ef the expert witnesaee referred to, the cecicione in
Meiennomy ¥. Chicago, etee Re Cor, 167 Ill. 497, 510, and Lentner
¥- Kesminoki, 171 111. pp. 570, 572, are in point. im the
a Cease it is sai¢: “‘hile opinions are receivable and
‘Satitleé te due weight, the courts ere alee well qualified to form
r r independent jucgnent on such questions and it ig their duty to
‘d 3 . —
| Aecordingly, the judgment of the Superior court is
pieintiffes file sith the clerk ef this court e remittitur ef
©, in which event the jucgwent will stand «effirmed te the
ABPFIREEDS OB RERITIITUR oF $4505
OTHERSISR REYEASRL: AND BAWABDED.
a and Bernes, JJ., concure
Ste .Crsnetesnse soe mooted) Somwemée aed owed of bombar
tinged wd? ¢ shaw Sta eagunds gurel @oldw det ,aredde a %
| <eastusten of fitened éa-10 Ree —
ween Sevebaed siywod? sods “Sed meitaoug om ek evedt
ow dui geet bf¢arice-ex Hy Liteds tadbitetoh do tee set eee. ‘
bets OLfexee-stmm axw Yew ot Yd battews samdee eile “Gdie Me i
Haikisiast a yd hooded oS Muods snamgont edt tdad bad lovbused
C28 Vga SEET SE oydbme wy delat mt Bhde ese ate” shercetoves: |
Sedete Liew si Stes Lavemig att” seed elds at Stéedttdge ae
nomg om? destt S920 BH? of .8f sdort TS .membicet ov wt osantys a
yousslusgss did ,bevelgas moeveq off to gaibesds’ van 14a 2 |
bewlownl tnuomé 8dd Of Beoget al deed ,qedevetsnen oF Ye 5
- ySaee edd ai tewkes amatsadny ‘wails te wumdat Bas vissouaiean’
at ,aehacashiencs out sedet ad 10% Simetle ¢disevs aulasies
“gig od ea .S “. betebnex esolytis edt te ewter o:
ai anetstesh ed? sed gertelss sseaensy viicags: wate
sates fan r0%8 00s Eto tok’; ge she 288 4 sbasstds “vs
“qld si .du2og BE ore 200° O08 sdgk Sixt Cee hee
“* °" gas gidevioeex ais omeiuign Sie" ithee wa 22 Sise ys
acot af Saltitawp {26s ela exe Weived edd stagton sas 68
gt ue: “heads a “Ef bas nadie sous me sesegoul “dwabreg oa a
oe) SE GR 2 "te ates ge tmelee ome ps
a2 dtseo wodseg@s salt To Fnditgant eit: rehdiaie ieke a
et Siddiw gests ,Leli? wea & tet Sodiiondt a
te mdigdises © sadee alae Ye ote ace Hone ek Yt eFetendat
“eats 08 pomeeeT a Sines ty saat bt dn dts 2
ae ieee Fh.A eae nibs Aa oe ae » Sie
B20 - 31352
GUST. KARAMBELAS and
JIM GEORGESGH, ecopartners
doing business as
EK. & Ke PRODUCTS Co.,
APPEAL FRO WeICTPAL
GOULT OF CHIGARG.
i ee Mn tyne Baty rst Rr Rian Mi
Appellees,
Te
LOUIS MATALAS, z
appellant.
BR, PRESIDISG JUSTICe GRIDLEY PCLIVERED TRE OPINION oF tHE COUGET «
On December 14, 1928, plaintiffs commencee an action
im seoumpeit ageinst defendant, = resident ef “enesha, “isconsin, 7
te recover @ balence of {1517.66, claimed to be due fer certain
Merchandise eold and delivered. freceedings by attcchment in aid
(Becnuse of defendent not being a resident of Illinois) followed;
the beiliff levied upon an auto-truck and certain goods @wned by
defendant; and, Gyon defendant giving « forthcoming vond, released
the attached property. Defendant entered s general appesranes
anc subsequently there «20 a jury trisi, resuiting im a verdict
and Judgment against defendant for the full amount of plaintirrs?
in plaimtiffa' amended statement of cleim varicus sales
ane deliveries of merehendise, Cites from July is, te Hovember 21,
1925, inclusive, and the ssounts eherged therefor, ageregating
$6,783.94, are set forth, ac are yarious eredite by cash or check
‘from August 1 to November 21, 1925, aggregating $6466.23, all
rane & met bDelames due of $1517.66. flainsiffe aleo clinimed —
‘thst, Seid sum wae due because of on account stated’ as of November
‘2, 1925. Im defendant's amended affidavit of merits he claimed
‘ae he ha¢ paid for ll merchandise delivered te him and denied
y aecount stated.
On May 7, 1926, felloving the dury's verdict, the court
| SANTOINI MOMT Jawa
| sOBADIES W TAvNO
IO PO NE OO ihe gO IO REIN,
&s
*
Ee ee a 6A @ 2 eo
ating dab
TRUS WNT Qs ROTEIAS Get CLARE Lake VRELAQ aorramt
: snkiee, ne voosammss extlialals “bil a scdeciisett 20°
_ eaienooel’ rodaono | te saobtaor 2 sSacdad tes: dandage ¢
nisaxes 20% ab bs og. bamdeto 2B. TLELi Ye oomaled a
bia Bi gnamioos2a xs aguinsvoen sbovewiieb bas bioe i
{dowolle® (alembisi: 2 imobiect # aaied ton imobaoteb 20. ss
wd benve shoey aisiis9 bas doutt-ocus a8 aoc be ie “TLied @
peu soken «baed gadavodsse? a pabris ssebao to Lseal Sead ‘ ame ate
BORATSORLe inxeneg # serosu9 sanbeo red reqezq Ss $i
godeuer we mi aalsivaos eekrd. eat 2 ase aod a
sernamlale 2 sevoms Lis ont. x0? tacbastoe desta te:
7 B,
Ste | BE008e§ emai tse ines :
Nees Sees <P ee rac >
beakate eels evtasalads “bo. SLEEE 1 ok: vies a
gyre x dager s
sadinialt: Shak bekebe. tawoces. ss te eaunoed sub saw
hostelo ec stizes 3 2 ——* 7
basmo> dun a 08 bot rodesen.
truce edd .f@siocer “— ed 1 test 8
ee Eee ey ee OO VET
Be
entereé judgment egcinst defendant fer 51517-66. ‘ithin 30 days
thereafter, om June &, 1926, the court amended the juigment order,
fume pro tune ss of May 7, 1946, to the effect thet the sttachment
be sustained, omc that, im accition to the general execution
ordered, a “special execution alse issue against the property
attached herein.”
We heave reviewed the evyicenee intreduced by piaintiff,
as leo the testimony of cefendant, ami ve esmmot eay that the
verdict is mnifestly against the «eight ef the evidence, as
contended by defendant's counsel. We think that the evidence
sufficiently disclosed thai there wie am acceumt stated between
the parties ac of Movember 21, 1925, showing an indebtedness for
Merchandise sold and delivered to defendant then due and owing
fm the sum of $1517.66. (First Hational Sank vy. Kuight, $6 111.
Wl, 193; *eigle v. Srautigam, 74 Ill. App. 285, 292.) And we
‘think that the evidence sufficiently divclesed the sale and
delivery te defendant and at the prices mentioned of the mer-
thane ise in question. {Price v. Sohn, 99 Ill. App. 125, 114.)
defendant failed to show ony payments te plaintiffe which had
Ls been duly credited to him.
| a Defendent's counsel also contends that the jucgment as
da ly amended ané entered is contrary to law, im thet there waa
, , @vicence introduced sustaining the attachment issue ond that the
Fr ry did not pees upon that issue. The fact that defeniont was a
dent of Kenosha, “isconeia, was not questioned om the trial.
Weds defendant, enlled by plaintiffs under section 33 of the
MEAGipei Court Act, admitted that he was a resident of Lenosha
ond ‘@ngaged im the fruit business in thet city. There was no
isue to be submitted to the jury as to the question of defendant's
@. Amd the court had power and durisdictien, at any
>i
ayad 0% mias2¥ 00s PLZkS «0% onoeae 8B Jamiasa ~amamgout te
steht Sencsouey ast, ane “bs neteeue sawe0° ‘ea .OREL- ce Senne so
treason? 36 ‘sie fade foatts at? o8 .aser- a call Ye 88. Be
soliunaxs fereneg ‘gid ed sels this at «Sade ve
wisqeta. ‘ead all saank ‘outa Bo kiveexe Askosgs* 8
ettisaiale x? neewbertat osae dive wate sewet¥st vad ov
eggs tats qae Jemmeo oF one yiHebdze td, te Yao2 aed asle «
' ge goumebive edd Ye idgior az “Semlegn visestines “gh i
eneebive edd 3200 Antds 6. teenwoe atzashestes od
peswasd pefeta dmwosox ke eae Subst jattd Soaotoate Ub ok 2
xot espubeddoimt an grzvede 2506 Lis tadubvel Ye on aotieng't
Sgiatwe fas exh sess smsban tod od bewevited bas bfen ¢
; sek) ode FEELe to mes
‘ew Bee te & at ‘
‘phate “saontoests issn estates: aedd ws
iene ols te bomelénem seokg: ent so hos aniaton oor .
4,82 tie og 2£F2: OR: eslol sy sotets ae
> $ext sericea stitdetalg oes dneenyan. mee wesie: Of: gelta®
said ot beet beto eles
“ea taghat adoantann’ ont Seem! eAEmaeaN TAS |
« pave Sete garka mk at ywaf ef yiononos st Dexadan: hae beonienen
edd jrsfe Oa oxmet tnnentontuis: ot gatanatoun: Sompbuta a oa ben’
@ cow Omabneted sods sont wat somanh sod megs sanyo
isted edd mo Daastseenp ton cow stand ann 9
| ads to 22 welisee sobmy eTRIsKRele We alten pin
\pitgeset to tembhwes aunaw od: tart fattimbs «toh due? Leqgho
ge naw quem? ote dods mt wesakend Toekoosh mE sai
a’ hemnie amas a aiiearen so een .
gia a5 vsotsorbatsa San Tovey hed Saute SFR sb
Hrget, wie ombaeee ts Ps MS -..
es a 2* vf vee.
| time within 30 daye from the date the judgment woe entered,
| te amend it as the justice and right of the ease might seem te
|wequire. (Krieger vy. Sricger, 221 Ili. 478, 484; Hdwards v.
| Irons, 73 111. 583, 585; Grubb v. Milan, 249 T11. <56, 461.)
Finding ne reversible errer im the reserd the
| judgment of the Municipal court is affirmed.
| i APPIREYD
| Fitch ond Bernee, Siey Concure
shoredae eow Insmgbul, add sich edd mort eyed @
92 ap0a, sshahainindiagais Ne ao edt a ie
a tow ies {Re cg AES EE scien
2
BS ee: et es. 3 SEG
es
ee ae use eae aS Ue
Same es a SaaS aR SU ia
papluceaines) “Tete da Mens asa eee oR bags poesia: Bote:
8 36 Sahe ih meets
at: Cae
230 - 51362
BIAZARETH GLOOR,
)
Appellee, APPEAL FROM MUNICIPAL
Ve ; COURT OF CHIGAGa,.
QHANIZS COOPERSMITH, j 2
Appellant. )
MRe PRESIDING JUSTICR GRIDLAY DELIVER“E PME OPINION OF THK COURT.
Prom an order of the “umicipal court denying defendant's
motion to open a judgment for $470, entered against him by con-
fession on a written lease on April @, 1926, thia appeal is
prosecuted.
| By the terme of the lessee plaintiff demised to defendant
@ certain apartment in « building at Bo. 1058 Loyola avenue,
Chicago, from May 1, 1926 to April 36, 1927, at a monthly rental
Of $135, payable in advance. The judgment ie made up of the rent
due and unpaid for the monthe of February, Harch and April, 1926,
and $68 attorney's fees. Wo complaint is mde as te the amount
¥ atterney’s fees included in the Judgment. ~
Within 30 days ufter entry of the judgment defendant
red and moved the courts, supporting the motien by a ewern
| tion, that the judgment be opened and that /ve given leave te
, fend upon the merits. After admitting the execution of the
ASE» etc., defendant alleges in the petition that on January 7,
926, he “vacated” the premisea, ~- the rent for that month having
paid; thet on that day he presented to plaintiff a "auitable® |
% tho was “ready, able and willing to poy the rent * * for
ihe remainder of the term,” but that she "refused to sub-let
, hi premises to said tenant,” setting forth ae her reason the
TACLOLNUM WONT LABIA
ee 70 taRMIOD
eda ht foie
@ fl © Ub
»TAROS ae: %O WOLMIGG GMT GUASVIING YARDITAD SOLTAVL OMICISARE «1
A Cro ane ced,
a *emabentek nitinia s189% Lia betes oat <0 ‘abs he ‘mort j
“noo vd mint Jeskene berodae .OThS cot sSereargeul a noqe of
at Lnoqua mtd? «O60 .0 Linq mo ounnl nodtiwn o we nok ec
ss .
tuabavted of bentmvh T2idmialg eesat add be named Ok
ours skeen HGOL se de yathlind 2 md, Janastage mindxoe
iaduex vdeo © do yPSUL OE Liaga os Bee a val mor? somes! }
ox ond to qa obam al guomghet oat .oonnwds mi etemyng ‘ &
eDSRE yLiwga bas dow yyxewado€ to asdnoe of? tot bragaw baa 6 r
sasoms ed? of us ohom a2 tutatanes ok .apek a Nomnosae eae '
~ ,davegbut edd st dekutonk eno? atysmsetse 1
inshastoh seoaphurt ects to Wane Tee te aye OF atdary
il
nieve # “ed oe arid gal srocewe aixwes ody hevem be
ef ovael moviy od\saite Soma burton ad daamybut edd sedd
els te meliuaexe arts pms sibs neat) sedkvom eats noge |
a? Ytowmnl mo dade mekeiged wt? ma aegolia daabastob esddo |
gikvad dinom tnt 18% smor ost ~ I eecmpsnn ast forvny gh
tofedue od boautor* ole auetd sud + mies mr 2 : -
soaks noanwt cock an Ad to% patesee, "hanes bhoa of atc
‘gt 4
a»
*yeligion and mationslity” of the proposed tenant, “whose name
fe Bane"; and thet “on or about March 15, 1026, the premises
were re-let by plaintify." |
The sole question fer our detarminntion ie chether
defendant's petition, taken in conection with the covenente of
the lezse, stated such facts as required the trial court, in the
exercise of # sound discretion, te grant the prayers
Tm the lense there iz « covenamt that “Lessee shall
‘not sublet" the premises, or any part thereof, “mor assign this
‘ease without, in each case, the consent in writing of Lessor
‘thrat had and obtained.” And in the thirteenth paragraph there
lie the further covenants
"If Leesee's vight to the pesseasion of said premises
shall be terminated any way, onid premiese, or any
thereof, mays othe Bak Boke be re-let by lesuwor, for
account and benef eueo, fer such rent and upon euch
terms and to such persone ond for such hay or oa eg
6 may eeem fit to the aeerers bus Lesser shail Bot |
nor to do any act w eereers or axere cy aiid ,
| Whateoever, in or sbout the proouring of B... 4... re srentel
| oF Senant to geste the oy oi of Lewesee or otherwine,
Counsel fer defendant eontends that where a tenent under
Written lense abandons the demined premises before the oxpiration
tf the term it becomes the duty of the lesser to take charge of the
ises, and if poseible to re-rent them, and thus reduce the
t of the leecee's liability. In support ef his contention he
several decisions rendered by some of the appellate courte of
As “tate and refers to the following statement aw contained in
| : @ opinion of our Supreme Court in Vest Side Auction Coe v.
Snneeticut ete. Ina. Co., 196 111. 156, 162, vias “Upon the
mt of the lensed premises by the tenant it wae the right
of the lendiord to take charge of the premises,
asvaimem eis g7nes vane) sioxsk fuede to me* sass na ‘ m vent
a ae Ww We ab
” *, Yebomtelg ee aaknox ‘
soa sane ve cabteniegntr 200 Sot wohtsenp oles odT uf if
Yo asasneroo saad ai hw fe Lt oeamop i moadkad HOLE LOmG bai a
eds oh ,otw09 Labss aig bortspet aa atoat down ‘potate onsol
| stoyotg add sancy of eno dt onoatd paves. ae) e C o2
tL asin waneal” Sauls saamevos x ak ound onans ats al 2
4 " EPO Bye in , ‘s
bis My bu 2 son" ‘steered rong we co ‘seaimowg ona * setae
ia at. a RR
“toneot te wats ber a moanoe os «Paes oso ad sweatin | a
. aed i Beet ae" hey wm sw ™
oxed? Agoxyenog dtmeoguhde oad = baa *, destarée bate oa 9
eal ONY
“Admanevoe wont a bdal }
eT ® sant ss aw a a mh es a
ing a eke te _2e,solanousag, ‘a oe tags « oeenad eteognat i
ong yee me.
<o% eros on “ed Fn rng ad ace sieereas
: see a
tee hege bee faes Some tet ye
tore XG miele Be it ba be
aliaiiabn ond eze20s qratenny: den bent act 2 ste Ga
old te emeoate waked ee geneel off Yo xia, jot RIGO &
ed coabde suit ona qmond seaemon ot osdinnog Ag a
wh Beliqednos aks to azoqqum aL a WhLidokl g'oanage asld.20
to aio otgiloqge add te owe Ww /maxennny suioteioed ax0v03 90 "
kh hontasnes ne tmometade gakwolte® add o2 a0 gear -
+ 090, mo.ktgmn obk3 doe mb tu09 sbcabuininds
ait » See sake gid abeh ALR, gril
sigts ode naw ah bdesonge 7 om hs
Fh eae pratt yy ¥ nee ‘i
9 am hee BE ant to wpred wen | os oceans « wis 20 mab
ci
preserve them from injury, and, if it sould, re-rent then, thus
reducing the damages for which the lessee wae liable.” In that
ease the lessee sent to the agents of the lesser the keys of
the Gemised building, with a letter to the effect that the leseee
ould not use the building, te which the agents replied that they
weuld not consent to a cancellation of the lense; after the
agente reeeived the keys they put up "to rent* signe om the vuild-
|dmgs the lessee claimed thet this showed « surrender of the
‘property, but the gourt held to the contrary, and, im affirming
[the judgment rendered by the trial court agsinst the lessee, for
iment which accrued after the delivery of said keys, ete+, used
\the language abeve quoted. In twe prior declsions our Supreme
|\Geurt decided that “in case of an shandomment without feult of
\the lnndlord or as the result of his acts, he way re-enter and
again tent the premises and eredit the lessee with the proceeds,
ane his so taking possession dees not relieve from the payment of
rent." (Humiston, Keeling & Co. s Wheeler, 175 ILl. 514, 5165
Marghs}2 v. Grogve Clothing Gos, 134 Ills 421, 424.) From an
ay
‘opinion of the firet division of the appeliate court for the
02 Tlle Appe 418, 423, it appears that the decisions of the
a 3 late court of this State are somewhat conflicting upon the
we ition whether, efter abandonment ef the premises by the
e @e before the expiration of the term of the lease, the ,
me must, if he can, re-rent the premises, thereby lessening
. tenant's liability on his covensmt to pay the remt reserveds
@ apprenend that this seeming conflict may have reeulted because
t ditcorent facets or different provisions im the leases in the
considered. In the onve of Haw ve Bakex, 113 Tile Appe
153, decided by the Appellate Court for this (first)
end ead cume~-ax ghfgoo- 22 22 , bun « etabat aoe? mane
feds wi 8 “Sekdsil caw owaael eet sto Lalw x0? asgeuoh ont
te eyex ont sgenel oft ‘to adneys wed oa dmea Pe oa r
epmael ect dudt dyethe wold oF r0sdat » Siw rpaboied peeks
wuts dnwkt bariqes atnega any solsw of em Eka end oan ton a,
“odd tedts tounel add to motieifoonne a of “tmoonoo de toa bl
~hLhad add me “seg ke "se as* au sq world ayou est Heid Wy
ed? to xehneswe a powode pied batt beataLe ‘oounel adi |
prckarst ts wd + baie ecko xémen od of kext dxnoo wae aud aun
10%. aonanod oat tomkegn ‘tw0898 inane ont we perobaws eh
boas go030 ao ates te wroviLen out ‘sa¢%e heybon atniaent
easraya. zee emoleioo tolm ows al -datouy eveda
(Yo Aine? dwodeiy dneemanaeds na te ona0 > at" sont it bonions | ,
amin iion nai ow — ‘to goad snooet tele mi Wittens @
nate $s’ eb La ihe WHO Pied Whabeel ida’ i ee a@h oid tt!
Odd hing patel tines Hamwéwoe baw dest abet w Ann ‘te
ate ed otebeo ty wt to Fatanobkads hosts |
Oat .okeod aad Yo treed of} 2 Me erkyve ab reat
“ahaha eink) (bbe bibet” dati seiesor ae nie
chowroaux Sew vad yoq od Saambvon elt me piihidesl |
satan od f bedinaet overt aad vobsiawe ‘gate ‘ote: ‘teays
WGGA sLLt OLE 1 zapkat + te oune ede RE
ae "hep wide ; i BR WEE f pPiaRa {id
(dork?) abste bi gxw0d sdallouga
ee
| he
| district, it ie said: “vhile in ease of abandonment by the
| tenant the authorities sare thet the landleréd my re-enter ond re~
rent, if he cen, we know of no age im which 1% has been held
| that the iendlerd must, if he can, re-rent or lese his remedy
against the lessee on the lence. * * The contract remains in
| force, notwithstanding the abandonment of the premises by the
temant, and the tenant's covenant te pay rent is umimpuired; and
we gonmnot understand mow the tenant, dy hia own wrongful act,
oan impose om hie landlord the alternative ef diligently seeking
| another tenant or losing hie remedy on the covenant.” In Hermon
lve Gallaham, 214 Ill. App. 104, a cnee decided by the third
| ddvi sion of the appellate court fer thin dietriet, the court eadd
[(pe 109)* “It would seem to ve the law that * * the mere
| abandonment ef the preaiees by the temant ond re-entry by the
| landlord does not give rice to an abligntion om the londlerd to
|@méeever to re-rent. Of course, after re-entry, the landlerd may
by writing make himself lisble te exereise dlligence in re-rent-
| img, or he may re-enter and re-let and he chargeable with the
‘Fents he sactuelly obtaing. But, in the absence of any euch
/Yoluntary conduct, more abandonment ond re-entry do not gblige
the landlerd te endeavor, by affirmative action, to decrease the
tenant! s ifebility." In the Hirsch case, aupra, it sppears from
the Opinion thet the tenant had yoeated the promises used for
ee: : business purposes before the expiration of the term of
h lease; thet prior to his doing so he had presented to the
a “thoroughly reliable” ossignee or eublessee who waa
“3 amd able to lease the premises for the balunce of the term
r e there conduct a different kind of a business, but thot the
. had refused to accept the offerad tenant, either ae
oid ye temmoshneds 20 osno Gt akaAm shkee eh a2 doby
nox bat tosa~or yon bre Ltnnd ode auld Onn watdtvedtue eel
bier teed wan &2 deidw al euse on te work om 4 nee ot be /
honor std aod to seox~ve yee va UL cdma bxoKbnaL wily
“mE asihnaod Senténbs ed? © > vonnek ee no wouues otto Beal
ald 4d eeaimoty wit Yo seosteobrods one yakbeoreivew vo
bie {DvTlotate we tee Log OF saansvED a*vuONDe otf dum 4 Sel
tou Ltynorw nwo eld YC etme one wart Desidewo Re |
gutsiven vizeogi iid Ye ovidamrredin ems broLomat att aa songeh|
xomesh nt". omaneveo edt om ybomer chil galeok ce Puamed , ‘i
thekdd ons va bobioes sand @ yhOL vqqh ef LD Ske y Lie!
bice Sapoo ads ,dohisesh aids cot sates staiLeqga vale we )
eet et * * Faso wed whe ov oo mown Rhuow 4I >) af
edt Yd YIdMOWE dee sumed ods yd sontnony odd Ro donut
of wrolonel odd no Mortmalide us of <umeart 7 ;
Yas brothas ons ,yriae~ou 10s te yeeurES BO. sOnetestt Of i
-thet-or mi sdeegiih entetexe of eidekk YLowmhd tam ats by
‘edd Hdlw eldecgiade ed bas dek-ox das aetoosen yam
weua ye 6 oonseds ode wt oul semkosdo YhLiNtes on
gailde fon eb yxtmo~ow Gms tnommshasds ‘ert , dovbago
odd eweorseh of .aoleon evitomtlttn “dt: ‘Sroveebae ‘ee
moc? eresqes 22 «atgey (endo Boag th wt wt *,qoegheane
to% tiuiy avatmorg off botoariv hit damned erty dads ‘nekely an
to mitod adY to wolscitgxs eit ocerdd sedeqtig ‘ancatend whi
‘edt od bodnonote bait od oo gakéb ctst*d wo bed ond Poades
ake Gite oedketdde xe dongtena “oLdad roe Udquoteds” @” biel
aed ud) 20 opmelad uy 48 wdutmnng Yee’ bowel Os ‘ate te 4
‘tel? Sods Sad pedombamd a’ te Sata tawaetenD a's |
8 taddko ¢dmnmEd hoteRte oafs » eqeoub Ot b
eT
4 ¥ i AN ae wih ie ‘ M aes |
Be Ree) AL A aa 1A AAO TARR ag Cs yl
| <8
| aesignes of the lease exeept at ea largely imoreased rental er
| @8 @ sub-tenant of the defendoent, that the seterial covenants of
| the lease were the game substanticily os these im the present
| ase above quoted; that, three months’ rent having scerued on the
| Lease after defondent had vacated the premises, the landlord
| caused a judgment by confession te be entered ageimet the dofend-
| amt in the Superior court of Cook County fer said rent am
| attorneys' feess that after defendant's vecation he had placed
the keys of the premises im the lendlord's hands, and the latter
| had put up “to let” signa but hed not succeeded in re-renting:
| the premises; that defendent's motion, supperted by affidavit
setting up thewe facts, to open up the judgment, etos., was
| denied; anc that he had appealed. The appeliste eceurt held
| that @oid tenant's affidavit in suppert of his metion to open
wp the judgment "failed to set ap a meritorious defense,” and
| affirmed the order of the trial court, saying in part (p+ 426)s
| "The lease, by ite terma,was not sssignedle, except by the con-
sent of the plaintiff given in writings yet accerding to this
| Sffidayit the tenant in possession made demand upon his landlerd
| that he accept a tenant other than himself and a tenant who
| proposed to conduct in the premises of the plaintiff a business
She lense, might be conducted therein. It would certainly be
r ‘novel proposition to held that a tenant in possession might
MEN Fotee convent to an asvigneent from a landlord.”
In view of the covensnts contained in the lease in the
mt cnee, the statementa in defendant's sworn petition in
to Liteor howomvent “lepwmd » dn Sqenkte simak etd tea sa.
‘to wdaengvon Lattoton eff tatd ptanhastes edt to @neand—d : :
daoenty afd ah ened? oa ylLobimadtodan omna en tne, :
ats eo ioexoom aabved toon fait mde word badd 4 bedanp 6 v4
SweLdast ode ,wowkued of) noteowy ket Sncbaoted notte ws
«(ate a? tagtags bexetin ad of molenetston td sromgarh w | v8
han sve bhis 0% Yared toed terezie: -salrequeeds ae
Desaly hat of nelécosy a'imibme ted tedte ads quoek "ey “
Taitad etd han ~ahoad athrethaed ot mk wonkmong ete te angel |
Getidter-92 ab babowsouns tou bot ted sapke “Sek od? qu ti i
tivanatta yt wedueqqas smobtem aldmahme ty) Gadd 1 va ba " e
Bev ends gtavmgert ex? qu Mege of eadead coed? qu +
Adgd dumme ebalieyqa wht «heleoges bad of dads sents use
sein 6S mokoom oid Ww ouegqwa mk stveblY ka atemaned %, baw i
ite "youn ted seokzotines » ge tos 2 hodba't”, sevempit
a(R) eg) Scag ah gadton ¢tteo Leine odd Yo. xebxe oad
wee end yC tox yokdenpisae tom saweumed ast. whi veneeli
aids of gatrxeoes any Temkshuw of sovtp. baineeaitees we
pete Smead ean Reoombe cnet sian deine a teen a we
aueaiaud 2 TUiskaig eff Yo avoimucy end wb soutdaon oF heneg
_e ames ond 08 galatgoos eMelde Jas mort roveevabaines
of Ylalatoos Aisvaw i salenedte sofewhaos od sighs 4 oe
sgt moseaoanog mt Mmened o dose bkad a2 mee’
i “ehwadonel » most savomphuas
one at waned att wb bemkesnen, admanoy ult, wey at bess
gi molsigen mrowe wtamoban ten oa asarnmend sat noes a
stodeeauy mi ameagbuh Senaetaon edd moge e¢ moktom ald. 2
eds 20 oua,ew pamohedoos. 2onn.iaaen. veto sabe ae. Ada ot
=6-
aiieon thet the Zumicipal court properly denied defendant's wetion,
fis petition doses not disclose thit he has a meriteriows defense te
plaintiff's claim for the rent which ig the basis fer the judguent
ae confessed. Ho alleges that he “yaeated" the premises on Jonuary 7,
2926 (when there was more than © yeor of the term yet to run) but he
states mo reason why he did so. Ye farther alleges that on the day
ne eft ha presented to plaintiff = “suitesle” tenant, whe was roady
and fele to psy the stipulated rent for tho remainder ef the term,
but he does not give eny information concerning thie propesed tenant
other than hia mame. Me further «lleges that plaintiff “refused te
cub-Let the premises to exid tenant.” che nad a right te so refuse,
| er wn express covenant contained im the lease, via, thot “Lesser
shall mot be required tc accept or receive any tenons offered by
lessee." Furthermore, the porties covenonted that, if the lessee's
right te possession should be terminated in any wey, the premises
"may, bub peed not, be re-let by Leaver,” and “Lenser shall net ve
| * * to de any act who tuouvers er exereise any diligence
ever, iu or about the procuring of anetiver eccupsmt or tenant
te a ttente the dawagea of Lessee or otherwine.” iiefendent finally
@Aleges in the petition that “on or about March 15, 1926, the
premises were re-let by the plaintiff.” This allegetion is notice-
bl for what it dees not atate, via, shen, under the re-letting
: ‘ ot, the new tenant took or was to take possession. For aught
t Sppeeres the new tenant was not to take porseasion or begin
; rent until May 1, 1926, and the judgment az confessad only
a. @@ the unpaid rent for the months of Pebruary, Moreh and
: i » 1926.
2 Yor the reasons indicated the order appealed from is
AFPIVGIED
ané Barnes, JJ., concurs
| ' snp been at iashreteb halneh Yxeqery PiH9% dagketaul ads ost mod .
of panste suoieeisom » ad ot so? puedonth Jon a9ad mmtitaa
tnewgbul ests wet winad galt of dotew snot odd 10) mlelo ai ets a
+ raat 99 soainery ons “bedeour” os sud ouantte oR. donmetig
od sud , (ours, of toy aed gid TO qeoy @ malt stom wow oped? ged ’,
woh oft mo fad? eopetio reds? oK .00 bbb ef wir monaes ae
Ubnox sow ouw gimwmed “eLvading"” 2 Iksubala of botanenna.ad ¢
erred aig to nbulewes of) tot daod bogeluqiva add yoq 4, oA
tnages jeaeqezg oad gedersy oon woke xrgo hee, Wis, o¥tg fom, @
oF hogaren’ Tthintats. dans copetio watsent OR «panama kel se
reawies oa mi dHyse + bad add “ostaned Bana oF sendmorg. ons a "7
Moenol" sacd yuky senort od? mi benkasuoo tuenereo sqexuxe na :
A beqette dsoned yao eyhenes TO dgevea OF *eS eR bic J
rage £ bb. wa. stezene so mmnaets, ae Wis Ob er.
saan 30 carqune. xeiteas 2, satTunere at tweds, ato
baste dmobmetes “,selwradte xo vovaed to sagen anette
tis ie esbhenatie eidl, “sVidimleats se pis sokan omg
BAisaleet odd sobew pe a antehe sos ooh 14 Jode cot A
dsigere sO% smokseweneg alo? o¢ vaw ve aleod dommes wom oe
akged <¢ tolageeneg dad a2 Jom yaw Saeed wen O88.08 oie
vino bosuetnes Gs Inamgnal aff baw 9 V6CL of Ya titan fae aa
_ hee doth qetouydot Ye adémom vet to dao bingawe ous be
i phe ed ape alley ila R00 a
mn al won? pecangee tense ons | besaotint aneacot a i, ne
Shes, eka iar | cee 1 A ee sl me OMe. a: vow ahd wi
dows :
eteroaten aebS ¢
| 264 ~ 31396
| GREGORY T. VAN METER,
| administrator of the
| @etate of Charles H,.
Anderson, deceased,
APPRAL PROM
SUPURIGR COURT,
COOK oun TY,
»
| Me PRESIDING JUSTICE GRIDLEY OULIVERED THR OPINION OF THE COURT.
Appelies,
We
| MIDLAND CASUALTY Company,
| @ eorporatian,
| Appellant.
Ra le gg My San Rte at ima = Rage Ea
This appeal is prosecuted to reverse a judgment aguinat
| defendant for $1,500, rendered after verdict by the Superiter court
@f Cook county on April 30, 1926, und baged upom a policy of
| @ecoident ineuranse (dated august 12, 1915) and certain receipts
| for monthly premiums theresfter given. ;
| : It appears from a ictter, signed by ene of the daughters
| @f Charles M. Anderson (the insured) and mailed to the company on
October 9, 1923, and received by it, that anderson “wae killed in
- automobile eecident near Wauconda, 111.” on Amguet 4, 1923.
Im the letter the number of the policy is stated and informetion
ot) ‘Requested as to the “beps necesanry to eellact on it. It
‘further appears from Anderson's written application that his
‘ecupation Wae thet of a motorman in the employ of ome of the
‘etevates railroads in Chicago; thet in ease of hi« death by
‘y cident he desired that hie estate should be the beneficiery;
that he agreed "to pay the advance premium of $2.40 on or
before the first day of each month without notice.* On the first
of the policy, numbered 119,406, it in atateds
“MIDLAND CASUALTY COMPARY, Chieage, hereinafter
Called the Company, in consideration of the first
Payment, and of the monthly premium of $2.40, and of
wOwE alten”
ye nde |
RTMEN nooo ue
Suntane Sxomgdu, w ouxevert 02 detonowony wt en th it 4
Seon vobtaqu at qh tokorey vedts berabaot .008, 59 2oY snebhol
Re ePR Deg w meyer Duwi hee WHEL ,OK Lied ao eonwbe i
ehatnnen abebene Biae (MUUE {8x Seupar detab) oomexwont aac
sgt baa Mili - sterky ced Too TOy menaoeg ha
atatdpund of IO omy LS DemQte ,tOeseL a mort SenNgEa ae <i a
mo yqaoe eal Of baLtam ee (DovaRE ods) montehitA LM oxen"
Mt DOLLEL wow” moerebMA Ceci, 8k ea sweausiiinaid na ei i
ORCL gd Boag Mert SLl .chaeomay tak saebleoa atten *
mOkiomey tes as bareda wl Yoklog oid Ye Meee odd rddde odd a
. oT 6th we eadlon oF ytennsoon aqedd od? 0) on naddeugs mm
hd Jade ap idoetiqga awid bows rowsebes nett wiawgga " -
Oh Ye cam Ro cgigue od? art nemo dew Te Wats Wow HOR 8
ee ose t ot ‘be leave a
Aetoke. ond odd. od Ghworls etades ohh tnd sila cue )
mo Ob SS 2p auaeug egsevhd o8F Yr we ne
rank Oct m0 “aonline, senate atime: Wp ta ext ai
eMedia ot bat x <eeee vt .
noe lnlered yout
the statements, warranties end agreements in the
application endorsed hereon and made a part hereof,
# O28 HEREBY INDURE Charles Me smderson, * *
by Occupation a motorman, subject to the provisions,
conditions and limitations herein conteined and
endersed hervon, from 12 o'clock noon, standard time,
* * of the day this contract is dated, until 12
e’eleck noon, standard time, of the first day of
September, 1918, anc fore auch further periods,
in the renewal receipts, na the at OF
- a
Sacet tt Cehedule of 1 = nities) © inci pel
Sum - One thousand deliars,* ater
Then follow provisions to the effect that if, while the
policy is in force, the Imeured shall accidentally suatein bodily
dajuries, resulting in the lows of hin life within 90 daye from
gate of accident, the Company (paragraph (o) of the policy) will
pay the “Principal Sum". In paragraph (m) it ia stated that
"each consecutive month which the ®clicy shall be eorried, without
Gefault in the payment of premium therefor, ehall ade one per cent
te the indemmities payable under paragraph (0), but the total of
‘MWeh additions shall never exceed 60% of the benefits therein
“provided ter ony less.“ Im paragraph (p) it de provided: “Keasen-
@ble notice must be given in writing te the Company “ * after any
injury * * for which a claim may be made, with full particulars
thereor and full name and addrese of the Inewred or beneficiary,
as the cave may be. Affirmative proof of death * * must be fur-
‘ished to the Compony within three monthy of the time of death * *.
‘the Compeny ehell not ‘be Lisble in any euit to recover under this
Policy, unless the seme shali be commenced within one yeor from the
time herein provided for the filing of final proofs hereunder.
‘Clains not brought in accordance with these revuiroments will be
‘forfeited to the Company.“ In parcgraph (r) it is provided:
| “The acceptance of any renewal premium shall be options] with the
Compony and if a past due premium shell be made to and accepted
\“ ss a
Mea
oe
ade ak stouomootne dune eobtnatzew ,etmometase oni”
stooved frag 2 oham bua moored benzebae ao 4
ai Row Te ber re eng memcpy rr ye
sancioivesq of) of oehdee .namnesem a sto Bap hd
hae boaketoes gloved emoliotiotl bmw
eeale Saehbaeda emwon doelo's GL most «
aL Thing ebodad ak Suatdnes abst, we
‘te jew sedatgho ed to yh yeaa
OSs ekRitw Xk sould door asd 08 ae pate worte? anes a
eiibod sisiase elindsodlooe Kiede bowel ed? sini (04 rl :
mort aah 00 midtiw OLtt Ghd Yo weet dd aE gakekoued 40N
ite (yotiog adi to (d) dacspamag) qinqaed add srmpansen’
Seid botede ah 24 de) Aqomarag Al, « "mt Lag, # *
tuodsiw pheinaee ed Liane yosle! sat sotdw amen OPE
tase veq ane baa Lele , ie Wor ed? smleona Ye dmomyng ald ak
to Lnsod wtie tad o{d) dqangeweg nob estoy sets masa.»
| seborxeds oti tuned ena to OS keooxe sewer Lhado mand
toate thotlhvetg eh 2b (q) Aqetgeeeg 2h mere ,
‘Qs tedta * * qageed ede ot antenee ot soviy 06 deme entdoa
ateiuolicog Lint iw yotam od yom mhelo @.dokse cok. Lae
a¥tetettemted xo Sexmont safe te eaetbha dase mast Shot amie %
~wH% ed Jawa 4 dosh Yo Joon wasemnayts ood. yumionsp ¢
o* * dine to omis alt Yo gelgmog wows gutite yaogmed eds of, bode
gids sete wovenet of vtue Yue Bh ehdakl od tom Lada yaaged, «
ads moxt toy oto Mivilw hoomeenes ad Linde suse, oct atitiadl
ronmental gtearg Laks ke yekids. ots aed sbblidiaDiaibieh
ad Lie c#uomote ex seeds Adiw eonebenvos a2 stguend, dom om,
- pbehdvery. at $2,.(x),Aqesgorag. al» ahi hodhote
od tite Loweksge. of Leda avinore) Somoneg we 20, eomadqvens.
basdgooen hae ot bee ot Liaste enckmo eg auth nega aici «X
a8 a aici Mtge Bk ws Mae aa Aa pedbamse
ame ay)
Ye ah lent
isd mph To THe peer eN
Cn
reel bl
nie hy KY
awa
-3-
by the Company, * * or by any agent of the Company, such accept-
anee shall reinstate the Policy in full ae to disability reewlt-
ing from accidental voiily injuries theresfter suutnined, * * .*
Immediately following the signatures, ¢videncing the execution
of the policy, there is = copy of the imeured's« application, and
then, wnder the heading “Motice,” the fellowing#
“Premiums are due on the first duy of exch month,
in advance, and must be so paid either at the Home
Office of the Company, or to such person ae may be
designated by the Company in writing te receive them.
In cave of death by secident * *, written netics
thereof containing particulars must be given immediately
aoe Give policy mumber when writing the
The action was comuenced om October 215 1924_ Levey
within one year from the time provided in the pelicy for the
filing of final proofs of the insured's death. Toe plaintiff's
Original declaration, consisting of three counts, defendant
“file « plea of the general issue, and © special plea, to the
—@ffect thet affirmative proof of the incured’s death was not
‘furnished within three months thersof, as provided in parcgraph
(p) of the policy. « triel, commenced in Jenuary, 1926, a
| Juror wan withdrawn and the couse continued. On February 15,
1926, by leave of court, plaintiff filed an smended declaration
@0msisting of three counte. Tn the firat count, after setting
forth the policy in haee verba ané stating that the inaured was
killea accidentally in an automobile accident on suguat 4, 1923,
| = the Village of Libertyville, Lake County, Illinois, it is
| averred that "on, to-wit, November 1, 1923, there was furnished
the Company affirmative proof of death, which said date was within
three months of the time of death of said decedent, and final
Foofs thereafter.” It is further averred that the insured, during
Ms lifetime, kept, performed and complied with all the terms,
“suapatties ade my sotvone ‘phan: iti
ehiaom done te yb deck? off? ae sub 9 na. shell ;
one ene oa wae Shot ba 0 tenn mba. souevbs om eousvbe ot
Bs MOSS 8 68 te cungune? gorr2O
canes Ghee od My ai ‘yregaed ed? bt sotampiges
, ie im “ tmobtoon ¥ steed 10 ‘ena® at i
acs. od gaum etacduo mn
ae ants igo repalw ‘esta vollet Trl are é: 7
aedek : oases, ve ‘sneane ne pies onK posts, (a
192 Ale adh 4, SORE DE pth, oe, saNn, on ct
e'Uidinialg 2. «ine e'beawant sai te etoony lisa.
tiehaptoe yadmyoo vewuly te wihgutenoa nots ssalgod, Lamhe
eal es .49kq Letoogs @ dna ,emust Loremen odd Yo o9lq .
“pee a08 Sines a'eexwamk sls te dooss vd omek ite Paphos
- erage sé bablvexg ae od ezOKs shines 9 ezed
4 eB80L qu samme ah resunemon, oates, a a.
ehh Graundol m2 phonmkdaee sauee ome nse. mee nam FO9
aoliatolonh bebwege m4 | bodes, ‘Mitmlals 209,20, pai vo 4 s
gabeten xogts .tavon fest? ody al .pdawon cess to wmbeatom
now honmal ad’ tad? yabtode bas gdaey peat gh ” :
ABSRL gh dauge a6 dasdloss eLidomodun mt, Edetmabions 6 De 4
hf) quhomiits «ysl aml yolliyastedtd Yo emaECaY, ae
dotiotarw? sow ones nGeee of ode ver, ad Senet 90”. fade 9
widow yaw oteh bhaw sty hat, siteeh to Roowg, a
fant? do h semebened btog to Esp) am “i in
o4-
provisions and conditions of the policy) that defendent waived
the condition requiring payment of promiums om the first dey of
| each month, veeause defendant for a lone time prier te said death
accepted the premiums on the iGth or 26th day of the reapecstive
months for which premiums were due, and agreed with the inaured
that the policy should remain in full force until the 8th day
of each month for which the premium was met paid on the first day
theroofs and that on Yovember 8, 1923, letuers of administration
were granted to plaintiff, as administrater of the deceased's
@atate, by the probate court ef Cook county, ete. The averments
of the second and third counts, although in souewhat different
verbiage, are substantially the game. To this amended declaration
the defendent pleaded the general issue and several special pleas.
One wae substantially the same as filed to the original declaration
as ebove mentioned, and another was te the effect that pisintif? 7
failed to pay advance premiums us provided, and that at the time of
Mhe Insured's death the policy was cancelled vy its terms.
‘a It will be noticed that in the first count the averment,
relative te “affirmative proof of death” ie that the same “was
furnished” within three month's of the inaured's death. And
rt none of the counts in there an averment that the furnishing
ot such affirmative proof within ouch time was waived by the
Ye and in mone are any facts atated showing aneecuse for
furnishing such preof within the required time. On the
“tried, bad in April, 1926, plaintiff made no attempt to show
q pat within said three months affirmative proof of the ineured's
\ th by accident wae furnished te the Company, but, over
mt's objection, he wae allowed to imtroduce certain evi-
claimed
which he <7 tended to show an exeuse for not furnishing
| uottexnfood bebe abst? of me ) “fabiantadue eta
Adeeb othe ‘of ee bay ow gee a tt taoinotoh samme
evitoaqeet wit? Ye ysb aaes" ne MeOL ond ne an ' :
Sostant esd dé iw booms foun “soub view oi ne 9 iota adh abe
ya eas wehé teen sovol tit ih ‘ahaa Sheds w whieg :
a*hesaoaed + walt ‘te sovnctulalabe “ sTabtntale ot detnen ;
ae A Rakai, . Rie ae
atone ve oat. pe a eames: aloo bo dxw0d stadoug: wd:
ws Heese
| dmovettth festrasou m2 spuonte ta edaaion bubits hese bagoee |
ar | Sits PRS ge ies:
sogekde
eres a ett
oonnke tetoogs iawovee ons evant Lecanog whe pobaatg _Anahae%b
wR, RANGE San 8
wohsanatoeb taas io was eo bette ea ‘oman out oer be A
‘ ’ PCE ge RIE OY, eR
witiaioia Sat doorre ests ee sew “oitdeas bee demo ts mou
Ca RAN Rae fui
‘ke wank one te todd ‘ws sdeblyorg 5 od ‘ceutnorg,
a sarod ed! ve betSveneo baw elfog outs s sgoeb eth ) :
; 43 pMOnnts anne a oil Ka
iaomrove ame saas00 touts esis el aaitd beotsen od ildw sagt rae
. Eh Yh ri grat ie Ae
anv" sate oti duds st “dinod 20 Yoong eyiiontt * 8
HNO RN
dole
bas osttnob et bexweal outs BD a'ddao8 onus has bw
REE 4 mad
‘pabae oar ads teat tavaseve Co exeds aL stav0e < »
wuld ca bovkaw anw omts sows ‘abdtt be toons ort ?
i rest cau a , VG,
sot oasioxt sa ‘gatwode. ‘badedo gost ao oa ak 2685
TH, mee a cin 3 o a ney
| ose ag soma bortuger ods bai by ‘00g sess Ra
wort: ot Aqae 90 8% som ‘Wealats oases sheng mt
_atbosrent en te Rens evidows23%0 atencat worms hoe saudi
wve vied syoque? edt of tedetmeg? ae
t2 on Sica
=tve ioe ree vowborsai at howolta aaw
Ds ine tach
| aha bee ton ot eaiiox 9 as vote oF
afe
guch proof within the required time and thot defendant by ites
acte hed waived the furnishing of such proof within such time.
Im view of the everments of the declaration, we think that the
@ourt erred in admitting this «evidence. It ia the well setiled
Pule im this State “that, if the plaintiff intends to rely on
facts which show « waiver of performances by the defendant, he
must plead such facta; thet he cannot plead performance and ree
Gover unger proof of waiver of performance.” (Kxpanded Met:
Fireproofing Co. v. Boyee, 235 Tlie 234, 2695 Hart ve Carsley
Mfg. Coe, 221 id. 444, 446; Feder v. Midiend Gopualty Co», S16 id.
B52, 559.) im the Feder case it is said: "The object of ao
declaration in an action-ai law is to state the facts constituting
the pleintiff's cxuse of action upon which he relies to recovers
#0 as to enable the defendant to prepare his defenee and meet the
facts alleged with saporopriate evidence. in order to recever the
Plaintiff must prove the esse alleged in hie deceleration. * #
He tienes make one case by hie allegations and recover on a
different case made by the proof.” Furthermore, by the terms
Of the policy sued upon, the making of affirmative proof of ¢ oath
Was @ condition precedent to any liability upon the policy, and,
as soid in the Feder case (p. 660): “There cam be no recovery
a @ contract against one party «hoae performance in dependent
on some act to be dome or forborne by the other party unless the
de ition precedent has been fully or substantially performec by
the plaintiff or he has averred and proved a sufficient excuse
er ‘the non-performance .”
. In addition to the letter sent by daughter of the
to defendant on Cetober 9, 1925, first above mentioned,
® which the Company replied on October llth, a Chiongo attorney
(ge
ete ‘a saabaotes #8 ait bs wake hetkepes out: ‘ebeld bw ety fen
Ket) my
sand shears mksts bw wong ewe “te gitety et ott beview hast Bi
Hels Lak LR ma ‘,
asi aactt mecha? ow sods arndeck out %e staomievs agi to 4
; a - smb a
bekiden Liew eek ak ex -sonubive waste antaétabe me ies 1
oS am) be
0 ier ad nbavgas vademtats aside data ota ate, ah °.
os sfuabae os edd “ed ponearretres head tovkew a wore dade af
beats ®
Pind) bikie sonmaro ro, bookg tonnes wat sods tagoat Hose baoke, Fe
BaP eel Si ee
: sit ive Seromt *. oonamett9R %e sovkow % “Ins
“snlnsed ot 0008 05 des oA E08 egnya «7
0
gett ‘h wares
Dt DEE on wihas yi o¥_aehelt iDbs ay ob Be ag
a ‘to ooide eat ‘phos ok ak sea zebes ous mk (088
n ae a Hie
gabsuedsanoo atoat ong ebadn oe ah wat sn wolves na ak Hoke wend
PSR 9 Wee ips
exeveues od aehiex ex sietsle ogt aokion 10 onwoe erribradete |
Ce PENA ES Te: q
oda #0 one anae ied aus oceqeng oe envsaeten ou pag weet ot Re
Ae ee
‘ost weveost as s0bx9 ak ‘seenebive osabqexcge as iw sepesie “
ae TREE OE, OR
* ‘ <mohéotekood wid na hegetia puso eale ‘Svorg anon" :
ws ee aie Path i ay Hat 4
| a mo tovov0r tas estoLdepeLte whi WS vane | sy '
3 wares oda we a oromrodezt “sdeong on w ota ae
‘thine 2 t0 oor ovbtawstite te aukwon ost +s0gs Bown : | Neston ve af
" Weta” ¢ HS
ait oliog ots nog aithdats wa os suadeowre rege ‘at
Ay Ray a Hy. ep Fy
sPvo00T om od ning exact” (0ae a) ed beg toe
a YANO AYA AS Hild a
fasnaaesn ak eonomtots0q saestin ema one dontins rtd
Mei yy al pera
ons aselaw yx zeta astd ‘ed sunodsoY 0 ausd of of $00 amas
' silva Ree ee i: SRR a
we oomro 1106 “Liakinatasus 10 xkiwt wae ead susboeuny WP Bhs
ani PAE SOS
oamore smoked tive # Bevo yen aaa add out pn Tebae
ie Pi ; 4: Pik Seki eer
a a ’ Pi POS. Mea ore er, %
pen tw ‘otityses 8 we si08 | ostok oa es wordkbbe ra oe i
ve RR Segue Ris why
sbamek ten oveda, ant? hlahiad « soGedee ao gavhaotod o% brass
UE a) A ce bis ef tp ha a
WONT 2 5 ogre a caaae modes no ger yt ma
‘ ai / °.
, Mauer 8 PS ae
ce A ck
: mt CT) ’
PE ae An iy ees NP CR CY
ei
wrote defendant on Nevember 1, 19255 in part ag follews: “In
re your ©. K. Policy, No. 419,806, the insured, Charles M. ADAG? BON »
died in sugust of this year. I hereby certify te that fact.
The deceased left him ourviving three deughtera,. * « I¢ you
Want any further proof of death sheets filled out, be $600 enough
t@ so indicate ond we shail of course comply with your wishes in
the premises, Until then wa shall consider this then the filing
of the claim.” Affirmative Brool of the death of the insured
Was required to be furnished by Hevenber 4&» 1923. Pleineity was
Rot appointed edministrater until after that date, and forma}
proofs of Anderson! & death by accident were not furnished to the
“Company until Mareh 26, 1924, Under the provisions of the polloy
We do not think that said letters can be convidered ase furnishing
the required “affirmative proof of death” of the insured. They
were merely belated notices of that fact. Furthermore, plain-
‘tates | theory on the trial wae that the furalahking ef formal
proofs ef death within the Fequired period had been waived by the
Company.
q The premium of $2.46 for the month of August, 1923,
was not paid prior to suguet 4» 1925, the day the insured wag
‘kddtec, All previous monthly premiums had been paid. it wee
‘further Provided in the policy that “this policy shall terminate
Ameciatery upon the death of Insured.” Inasmuch ae we have
Fenenee She conclusion that the judgment appealed from should be
ond the cause remanded, for the reasons above stated,
from commenting on the evidence intreduced by plain-
| es /S@ sustain the averment in his declarotion that defendant,
the condition requiring the payment of the monthly
on the firet duy of exch month,
RAE EN bite ay ai
%))
a eee
”
Tie ie
dds “Venetier ‘aa dxaq at 200k (6 tedmovor me: snasmeran ote
a LB gakxand yhotmamd ost? sO BLL on a eakLot ad woe
toot snatd Oe “Ceaieen Ydoted T«,taeg whe te sexu ah bad
Spey a * atetdguad dents gabviwase mie steak benaeeed. es
od aie beLfl? ehveda dendh Yo LoSrqisedsTARi CHR oa
mk sudeke uieg aehy vlaase ‘ened te Linde ow aoe odaokbad ea
gukts® ind Wadd” ake tobtamvo cinde ow meds” Lio sontenne
petwend edd XO Ateow ose Te Joose wyitamn kDa: Smashes eft
gav Webdmknls «8800 4h remiomewney Bh act oesieneso ed of host *
patie ean’ gated: Goals cade Lkdoe xedratotstabe hute2eges
oat of pétatitnst ton axow tmebinow eo sitanh otmoweone: ae
‘Wottoy ‘val! We witedatvony vals 1#bal> odROL gOS ori Lhsus
agneigiel ws bovebtanee ed mAs avetoel Shes soaks asc,
“att -hewiant ada te “dteo 26 Reend pbtamaite pwrhapee
~alakg oubcineietwt «feat! dais Re gootien: badaked: viene °
foatet te gtistatens? ess. godt enw Labeto 9d 00: quest @ "
oad baal hoview dood bed Sokteq paciuper ede aadehw diaab te. ove
, a: fie ‘i bee RIA NA aa ny denne sha oe
ann barged Se mem whe TOT Pek, en vite 4
giw hotel’ cxte gab one ,f80L 4d Page ot TOk56, bdow, Some,
Ohi PR GhRng set Batt comrtanng ikewom auorverg Lia ha
—— fkoda qalhoy wide” dade qotieg adit uh hebhwoue
gest be ae Motion | %e bona to reaob oi? age Ted re
od Aitute owe oLwoqae setsmydart sid sents mokemkonoe oft, bad
bodage Wveds anonset Gile TOT a tebeaeet: ‘euune etd ban Rowe
euketg yd bovubacénk oommbiye ott ao grttnannae mort he
berveunsintal sold toldothfood ek ok amemsave one mhodaue at
Host peskiog etd Yo GIRS of? pakewbdembawe TH vemuen :
ee ee peichapae mods 209 vid te
sanoom dose Yo Yok tuekt od? mo mal
shana ete boom ad
~ Pe ger remee ete
For the reseonea indicsted the judgment of the
perior Court ie reversed and the esnuse remanded.
7 teh, J+, concurs.
« Justice Barnes (specially comeurring): “hile I concur
br what ig said reapocting the grounds given for reversal,
[ think the preot wee inadequate to show waiver of peyment
: the monthiy promium in advance, it deing optional with tha
ow my under peragraph (yr) whether it would eecept « monthly
dua efter it became dus, vis-, on the firet of each
. The fact that 1¢ had elected se to do im the paet
dé not deprive it of the right to elect otherwise im the
: « Here no payment whatever was made for the month the
tec came to hiv death.
el meen
Sy eer
f
call _ ‘semmgnay «ia ‘hed bo khak emmaoee yh
vvaibieue i coco ieiiae hd ha’ ‘sodeasitay”
be ‘6 pee broneene eA jomareds ba i Rall
oe Pontes ed as Say Fae
ea aE PRR, RR AA,
‘he
, z Phesen aun Ula Bera (i a ai Si siti a foes
Rebuy hse eRe cca a SR UR Se ROE RR Ge (RO aan OMAN Manes SNR aa ee,
‘\ ok BNA, ay
* on
waa PY BSE ADRs aig te Care sg ee
vw
> FEW iar ~ Sohsairerin 8s
Brena a A t aie wees
eh ee ae)
Re ey Bia B A
AP ee ARN a OA NA ben BG, Site, FARMS
ee me en mee ks ae “Pawn bil ‘ahve
i Hat Ne Salona, yates.
ee te aa
ney IM fh
Be a |
ad we ae
Sa ee NOES, halal scuihan Baie bi Vey.
v
Hie Hea aver me oe tk ‘bee ah i sxe oan
299 - 32432
BARRY SHLEMARY, BAX SHLENSEY
and MARCUS GHLENSKY, doing
business ag Me Ghleneky & Sone,
Appellecs,
APPEAL PROM MUMIC IOAL
COURT GF CHICAGO.
ee ne ee ies eee
Ve
JACOB SCHOLMBURG,
Appe Liant * e%
re
Whe PREEIDING JUATICE GRIDLEY PSLIVERSD THN OPINTOW OF THE GoURT,
In a first clase action in gsoumpsit, comeencad June 6,
1924, plaintiffs, in their second smuended atatement of claim,
@laimed that, solely by virtue of an account stated and agreed
tipon vy the partios on June 27, 1922, for (1203.46, there was dus
to then from defendant the esid sum and interest thereon from
said date at the legol rate, or the agaregabe aum of $1 54'74 DG.
In defendent’s affidavit of merite he denied that on June 27,
saz, any aegcount vas etated between the parties or agreed to by
hin, or that. he owes any moneys to pleintiffs. After a tried
vishows a jury the court, on April 15, 1926, found the issues
et defendant, assessed plaintiffs’ damages at $1474.96, and
jucgment wpon she finding, ond defendant appealed.
q The main contention here made by defendant's counsel fe
th % the finding is egoinet the manifest weight ef the ovidenee
om the deoue whether on June 27, 1922, the oleimed secount sued
po ‘Was stated by the parties er assented te by defendant. In
§! Juris, ppe 684-5, Sees. 262-3, it is seid: “Em ateting
an account, ae in making any other agreement, the minds ef the
a p must mect. * * Te constitute an account stated, the
ee of the balance must receive the usgent, express or
Lied, of both parties. * * And where there sre mutual
aA
XAGQIDIWUM MOAR LaReea hated ofl
| | iy eae & vir B
eOOMNTHS GE TAMOD aeoallegga. ono
+700 mut w WOIEL EO mr a cay Yann sorrento te
oS otte% buemecmme «ibgomong ot wo tdes dake barlt aah ¢
«miele to dmemetads deooome bavoge thedd ab arenes: -
heoxge hie Hodnse Jewoope me Wo eptaly od Ure tate 2
oub axe wthdd 20000) get AWOL GV oma me esterag oor
‘Mon omit Senee th, Sain eats bam ae empha mae A |
obQe 573.54 ‘To mire odewotann ond to poten Segal edd de
— g%R oni’ me taitd Sokmod of stivom Yo pemertiere »b
qt of boeten te kokiveq eff meawded bodate aaw Snuegoe Waa a
faktt a seata eattismbate ot wyotem yon core eal taslé 0 4
aaarnak od bawot .BSCL «UL LkegA mo .otweo od? yal « na b
bun , 89. aTaL8 ta ogame ‘attiaiele beeoeaes stanbasted $ :
holeaqys dunbasteh owe ,gakbatt odd moqu sxnmgout,
at foomee a'eaabno tet qd shee exod ne len noel a
bews Seueosn somtato odd SRO «TR smh mo xadtode pa :
ak sdatebuetods yt of botwoces 0 voksxog ead ue betate
gaklieda ak* tbioe of o2 sede snp ed “ot venta
9 canrgxe vtnseas ous avionet teil, ‘eealad ene ‘te
Keutum one ozedd onody bak + * swonsnag dod 20 4
-R@
or cross comands, the purties must coms to on agreement as te
the allowance or disallowamee of the items composing the secount;
there must be an adjustment, a balamee@ atruck, and an asvent
to the correctness of the balance,” (ee, Peteragn & oo. vs
Wachowski, 36 Ills Apps GGL, 6633 Atlas lye & Ces Ve
Forster, Yaterbury & Co, 153 ide 558, 566.)
The evidence discloses that the three plaintiffs were
Gopariners in the procuce comniasion business at Jeliet, Tllineie;
that defendamt was im the brokerage business at Bee 79 Vest South
Water strect, Chicago, trading under the name of Uchoenburg Fruit
& Produce Co., not incorporuted; and that during the year 1921,
and the early part of the year 1922, the pertiee head had certain
Business ¢ealings. The instrument or account susd upom (intre-
duced in evidence by plaintiffs) 1» written im typewriting upen
Gefendant's stationery, is unsigned, and ia «a follows:
“June 27, L922.
Bet on 14 care Grapefruit td 06
Balance - Your 1/2 - $166.06
Less (various items ef credit enumerated, * totaling) ~ eae
Ake
Gr vetiins expenses to Florida $125 « 1/2 $62.50 ~ i
Due Shlensky oa ¢.Fruit “ P
ms
one wo care Cucumbere, Yoo. 43019-43562, {1071.45 1/2- 536.73
i aa per secount asles rendered
as on car Grapefruit, Mo» 25024, $89.56 1/2 ~- 294.68
A om car Rewtens se per your invoice - 262.18
V2 Less car VYinesaps | ~_ 28
Phd o
A ‘cucumbers token out y Uhiensky as per our
4 inveice nat May Srd ~ 348-75.
4 Due EH. Shleneky & Sone ~ $1,303.46"
The testimony of two of the plaintiffs was te the
“Affect thet there was no record kept in pluintiffe’ beoks of
: | Matters and dealings referred to in the agcount; thet on
) 27, 1922, there wae a meeting had in defendant's office
me \
of es Saemorge se es omen Seem solitog arid «edmond sare 3
toareooe vd gukeogawo amerk ots 20 sonawollealh to coueniio s
ftoune ae hes yhoutsa momeled m ¢tnemtay ine hae Ms im %
o¥ +92 S mouresed ood) “seannhod oid re vy )
a 990 wigews owl geld) 48004 108 seyA ttt oe «ikawortew
(0B 628 bE OL 4209.8 wemdih ta gan tene
sro atihemtelg vould oft Jom? waaodonde peer On
pukeokif£t ,Jeifel te agemkavd soleeinacd sewserg bath ek sigh ! :
uel Fee¥ OC vi gs eacnlaud vgncetexd odd at eaw deal é
tars, gradeacsied Ye oon ald Tobm. gatbets adgantdd stoeste::
efSOL maey, ony paix Jedd Ana pboiasoqzoom. son «9 0), combos,
ukadaon bad bed op2étag oil? «288K wor, ood 26 asag YLERe ot.
~ottl) noge Bewa smuoape x0 jnomusden) oa? ,epmbsved
wocus pabtRuwour? mk mooehev ah (aBtivatate xe manne .
| _faMOLLeh sa ak ar »benpdecw penpebate ater
s808L 4 °R paul” : penn
| oop a ROCRERR. tursnges in ph me ot
80. 9aL8 - as
sno - poaal af E ‘a
feeae = (poster Dad aiestine tigers te wos cotter) at ea
ae 0 gd ap ae ele abbrore ot ewprnd
a ee Loa Sa hare kite
et.8ee = BNE Bho LTOLY pROBESLOED, om rod ure
84,808 ONE abe o. slew
6h. 388° = oo wo 9 wae ae pts
i | BR oo
ii) Siow Somlnmneat ou lanes Yate eawabieg exe mane |
A. Ghs yee UR oe ar Ovas |
xt man ay ae ‘i? eal i ts + a
“Bhs 6064 £8 nf ‘ nen 2 olenatee, 4 aul.
j hi “Geo balid catia : ca cont
ade oe anw ettigmtate wut 2» owe te mondsaed ad’? in ata
te SM al, 4 vane #4
% aleed Nertemtoty as tgon oreo + ag S csiall
r oresty . taste,
: § Pi ot Dae FH ‘wl ie |
0 seats {immooda alt at oe bormeter & fees J
ole See eotnd at Wa: smntored
otto etaanbaored ab ‘bot ere, & sav aredds S808 he ies u
aes RS ey cS Ya ¢ DES
P
|
+3-
at whith the two pleintiffe, defendant, and ohe Gladye Post,
beokketper and stenographer for defandmnt, were preaent, and
oertain deslings previously had between plaintiffs and defendant -
were discussed; that at the conclusion of the conversation aid
after Kine Poet had typewraiten said seveunt defendont handed
the poper to one of the plaintiffs ond stated that he asecented
to ite correctness, The testimony of Mise Post, no longer in
defendant's employ and called as plaintiffet witnene, was moat
umsatiofactory. “he had no independent recollection of having
written the account out on the typewriter but she *supposed"
she did, and thet, if she did,» she muct have dene «eo om Jume 27,
1922. Defendant’ s testimeny was to the effect that no mecting
“wae bad in hie office on June 27, 1922; that he never saw the
| account until the present action wos commenced; that he never
: asvented to ite correctnecs on Jume 27, 1922, or at any other
times that he hod nothing whatever to do with the drafting ef
= papers and that ha dic not know who had drafted it. He
eR account atated. After reviewing the abstract of the
‘teatineny, we do not think that shey showed by a sufficient
r ponderance of the ovidenee that defendent ever sasented
the cerrcetnese of the account as charged, or that there
sFeo% wERNLD unio bao , stebus'ted orb Limcaiy saathound 7
| hese «Stes aong SOW, Jaicts Ys xe? -tadqangonmede bua
Mnenteted ime sWResdiiaty moewsed dot qewOhvedg agit tied “e
Poets aobiserevsed aad va to kedzoned odd te saad shennan otem
pubnad smabaneo Ensousd Blea Kev) keveqys Sat Foot wall 200s
pedmeada of todd bedate baw wRPieelaly ott to ts co it
vi
we
wh Tognee on (3eo% Bei Vo Yromtived wd Veet ne
| aom wow Vowene kw “ATEN LE eo betting ‘haw Yoga dé cabinet
qakya:t Yo no tenettoow® Ynsunoquduk on sult oe” |
*peecgyas® wile dud yedivwogys ef? me Que cues ew
“ATR cuit we 9m tes vid Sees ‘ote se a
BAtioo om sat outRe sid oF maw Yeomered wtmmbaw tor 4
etd cee vow wid fade PSSAL «VS om wo wOR IS wit nk wim wl ?
ede Yio ta we SACL TL cml mo wremvoowwed wet ot Dedeewied
to gAbstord ety MA tw od eo xovedacte yatsison hel om daslt ' ahd
SH +32 Sod tard bed otter wom Seer ako: wa dieky tenn | ei,
ROR 4EDEL aye tas epabkso srod oot Hess | per aeeaes, ,
iD = eRe
eaux 106 uit kkeau egentsty ah ate som saw Pr vy ke
ssoance te ‘gem oa te qeatiast: oat ee ‘he tetwdorxsoo ane oat ehds ot
hahaa godei abmne tha, ak ash atk beng: bao a see it
ogantl® ah dont eet! i ainits awoste edenoke oon oomaulre os ta
swe Od toast ona ywhad dost? soon wan 2 ee xe! vanek’ «0
+ teusono.n eal? to areereerrr? ce of hetueses ved (hd
Stead sd’ se oven xerwees es feta oun 18 OP at %
td Re doossade ett yobwehves «eth .botadn samooon ee °
Sopkelrioa a ed woserty’ weit? ante debits” i 0b ots ie ;
Aeswenan were smabmN TEs donald HaRObIvO emt RH vumetD be
Sted? Pete to deg tenle an” » drove ‘aite te pin eas gate"
week ye a Cami wd ek RAE ae Re wnt ae or m ‘
jas ever nn aocount stated between the parties in the sum of
$503.46, or in any other cum,
Accordingly, the judgment of the Municipal court is
seversed without romandment,
and Barnes, JJ+, coneure
a wa we ota oat 30
EMRE be
‘Bagel
tuna
LOR Be,: Om Fy
eRe Wi aut
h é ss balay
aw yee Ps a hehe Ta EA \ ae) bi ey ao aac wt
Di. Was ye web ht tia an
Y ROLE ih fe) di i al Me ONS
Siteinwe, woe EON 4 HT EE A demi |
ae bg Re eel wrk Ua
me oi hay A
+ W/ BY uh Neer
Cy eran? a
RT ' ie
Pit,
ahs eb &
Bt. amie Rea Bie Aah ai pete ue
TSS eae.
SA ig ty ‘5 ve wih nee
aut
PINDING OF FACT.
a We find as an ultimate fect im thie ease thet
Para
ere wae not sr secount stated or agreed upon between
a
we parties on June 27, 1022, as charged.
ahs,
.
,
«
"
R
wy
JED... 4
my hal
» *
ve Van
1 . " AR
¥ ¥
EERE =
ihe Qa
afDAR CO OULAMETH score Soe i ee
dads enoo wide at fost esunteiw an ca bath 68 >
nowwted noqu boowys 16 bedete savecen tt fox Gow |
shograte os \SSOL . TS emul mo aokdueg
236 - 51568
ASROE ADLER
’ )
Appellee, APPSaL, PROM MUBICIP SL
Ve GOURT OF CHICAGO. oi
JAMES PATEIUIL, \
Appellants
BME. JUSTICE BAEMES OYLIVRREDY THE OPIMIOR oF PRE Gout,
The principal point raised om thie appeal is that
the statement ef claim is insufficient to suppert the
gudgeent appealed frome
The action is ome of the fourth clase of the Munieipel
| | Gourt of Chieage. The ctateaent of claim alleges that there
du duo pleintify the aum of (285, being the purch«se price of
| a. certain notional essh regixtexy, woieh plaintiff purchased
‘from éefendont for which, with other items, he received » pill
ef gale from defendant, that plaintiff war aubsequentiy
| “Motafied by the Hational Cash Negister Company that the void —
| ‘Pegivter was previously sold to ons Churles Burbour, and that
| tt had a iien thereen for 0285, whieh plaintiff? haa paid te
) a 7 Defendant, without seeking to question the eufficiemey
ef @ald statement of claim, but apporembly undergtending the
ture ef the action, filed hie «ffidavit denying the several
sbieons «foreauicd and any indebtedmes« to plainsify, and
Gaze went to hearing on the issues, resulting in « finding
judgment sguimst him for $220, |
Seetion 40 of the Municipal Court set provides that
in fourth class cases a statement of plaintiff's case, if the
sn hie)
Ne ee ee
(ey aati oti MOme Lassa | somite ag *
yebantan w caueg TP here wt Fannie
NEB», hd BP Een sa aa a
AE sisi
STAMOO AT O WOXNTAO ger cauyine we
me te Pe
baat ok Laoaus wid? mo boelex mutes Logioniag oat
wld drogqeue of tuetoktiwent of wate te snomwtees os
f i ‘ lease votsouas es
Loukohent out te eeale diame? ada to, omo ef wo iios edt
onedd Sid eegvife mieio to taametate aft open kid 20. nee
‘to eoteg candeteg od? aaiod 802) to mae ems vabdmdatg ‘ oh
hepato wg Widdssalg dgtde ,xadoiges duso Eaao bs vst, misdee ;
iid « tovtooss of .ameds redo aviv «sobdw 1X toohmeted mos
Utaaupendue saw Yekenbele dad .enadnetoh moet otew .
kes sil? aac yangmed rodelged dan? Senotioll edd ber ue ‘0.
fail? hein, gtwodxall well? ae of dkon yLeuprvesq aaw vot Age
e¢ bteaq wot THtadelg doldw .on) wo) meaxedé wold a bad
aS ae
Yousiok tea esis | haoktineep: ee print taoris bw snabar ted ‘a
edd yatbostoxohes YLtuereqqs dud yaketo we. smemotoee bbe
forever edt yaturd givedlite eld. ‘belek mottos. wat to
brie «Tkebalg oF anpareddoral ye baw bkesoreta c obs
Beleess « ah gabtionet gueiial eld ao gatiead oF tuo onan i
oORGE wee mkt dunboge pia 5
dadt aebtvorg. 02, haadal fompoumee a %. on see : sie . :
oo fd we
euit be on a contract, exprees or implied, shall consist
of @ statement of the sesount er of the nuture of the demand,
one thet the court may udept such rules and reguletiong as it
may deem necessary to onable the paxyties, in advenee of the
trial, to ascertain the mature of the plaintiff's Glaim or
Glaims or of the defendant's defense or defensea.
The rules of that court are net befere us. We must
Presume » therefore, thet thea rules afforded defendant means
of ascertaining the mature of che demand if he did not under-
etand it. But there is nothing in the reserd te indicate
that he did not understand it, but joining issues on the
Bllegations it must be inferred that he fuliy understeed ite
mature and in the trial proeeeded to meet and roaiee all quege
tions of fact or law pertinent to the case,
It ie true that the pleading dees net wet forth all
the élemente of the ccuse of notion with the formality required
4m comson law procedure, that it does not Gefinitely sliege
the nature of the lien or the express or implied terms of the
Contract or bill of ssle upon which Liability is sought to be
predicated. But the decisions are numerous in this and the
Supreme Court affirming judgments of the Municipal Court
Where the statement of claim was so defective au not to wtand
the test of requiring each element of the couse of action to
be expressly stated, eepceially where the parties went to trial
) O8 the souumption ef the existence of the several elements of
*’ @ause of action on which evidence was introduced and the
“trie had. (Eu ty of Chicago, 272 112. 404, Lyons
* Kanter, 285 id. 3563 Sher v» Hobinson, 298 id. 181.) It
| UMneceasary to cite cases from this court te the same
.
i...
«bead wid Yo ousten ead Yo 2 pines"? a r
sk ea aitod 3 eisiget hun eolsx dose Goh" wast $xu00 eats ed, :
ont ‘Ne eosinvoe Bk vavkd xq eit? “eXdano of wuoncesen meeb w
Pa) ‘tote atridvatela exis ‘to eimden od abasisoua o ans
- spoameteb to sastotet oMaraabmo rom oot Ye x0
“ea exe tad son sxe owed tadd tw ec ont . a
\ gre Ht ey
on
doum oF
ene seitinstod bebrotts wali. ect? “toate 070 ose
onebeud tom ‘Bkb aa. "8S bara es xo wustim odd antmietuoesn 2
ogavkoad os Sxo00% ons ak pakdsos at vies yf sit pane
ost RG ‘poseet guutsihol gud Py pavgereda fom BED
ati Dooterebey YLhut eat. dad bexty Rath ad sae od amoneaged
eaewp Lhe oabes hans doam of balnonerg saree Ld yt eh
iis saver tou io eed. seleaite ona anit ¢ si os
postuves ytiiewu? ed? doky aoktos Yo eeueo eas 9 ro asian
eyoits wiodimties som sven at dad? sivxubooesa te “3 a0.
etd to paced dedignt ch spr PPE eau
a6 of, ddguon sk WHL2GaiL dotdy noqu ofae 20 S626 70, dent
edd bin ats ah aw@xomain gin eaeleioed odd out she aagh
deargd Lagtobeatit eng to etmomgint pickersk ite srwos, sae
inate of son ge evizvetoh oa saw solo 20 duemetate. Maat bon:
ot getios te vonen aft 20, énamete done n taper to duet
fabsd od tamw malixeg odd oxerty yitetoagae "tes ere
So atnemete Levoveg edd Yo eonedakxo | ols x ma oy Bg
edd dna begubortat eaw eonobiys so ete a0 ny
re i
grays 10d odit £VS «ogae shy | ri
43 Gekbk adh 893 mina pee <a 288 + gegmet
‘guna ott 02 gum elds moe? aeego athe os Yxesneoean
Where the statement of claim eurrieciently epprices
defendant of plaintiff’ « demand, even if it is techniendly
defective, it will be vegurded os sufficient after judgment,
@epecially if tha lasuce joined are such se mecegsarily—
require proof of facte defeatively stated.
274 Tlle 232; Gamble~hobinson Comer (o. Ve Us,
262 ide 400% Sher v, Hobinson, aupra.) Ye think the etate«~
ment of claim here woe sufficient to apprise defendant that
plaintif? claimed » breach of a covenant im the 0141 of aale
ef the article in question warranting an absolute right of
title and possession of defendant, but that the Nstional Gash
Register Company helé «» walid lies thereon for part of the
| purchase money to the extent of $435 which he was required to
pay» Bo other cause of action sould realiy be inferred from
the statement of claim. We must presume » %00- im the absence
ef a bill of exceptions, th:: evidence of such « state of
facts ese necessarily heards
Chile the judgment vas for $220, we must presume that
that amount wae in secordamee with the evidene.
The judgment ie affirmed.
(Gridley, Pe Jes and Fitch, J+, concure
tie
MO all : hated , : mi ‘
| |
aeadnuge Vidnetohtim sinio Yo tasmvdede wily vr9ae stadlishs :
“bkeoltastoes of 94 1b poewe _ both eVeksatete te
_ytrompbul, vaste émokodthee as baler ed ELRWw 2k,
| Ulieneevon aa gowe ora Somtet wane Pond Ty es.
ebaaeS 6% 8elS) .sbedate —evirasten atowt’ atest
02825 a) ese 9 V8 5
roteda an? siakds oY f+axgwe casanidest ue sage yobs
gorte inaban ted oadtgaa af samhod tte now. ened mao:
efon te Lite ede me sunieroe @ Me danoud & bombere
Bo take otwtoada. Se Ul danwmeW mel seo mE oxatens
fino LacohiaB oft sods dud pinmbeated to momsenen
mile Yo fag xq mooreds RELL ALL x aLont
af Qeskwpwr auw ork smdalw A9.te -teets we ot Seetie
mont bevestah od Ydows ee
eopneds ad? mk .oee aomwacre geam ol snbele Me summits 0 on
2p, efade ©. aint 20: omtriatinn a cate — es
#asha aoe # ania om. ere 30%, Rew, monger, neo ocaae 9 “
MOP ETE: Ame tke: onmebTosea mk But g WA
eked wh alpeats BS eh emeananieagntantie ;
seh is
; tes wacromgioue Sle Rien RR Sg athe.
pF Mee me : Ad v AA Attar? ute ai
ee Ay ie hme ae a eee Aen Fa aie yt é My ae a moe ie bac wee
sa _ eTaRACHD ky aaiog 2% ome “eb eto
eae CT ae a Le Ake bey ai a Pe ees tate Ee
phi. uy aan Bee bait me me ncganane, pitt
S it ied
viet shat ISO Arete) Ba Ae bial eaten oe
o j a a a We Nhe By ib Luis PIE AN i dans
ye ee at BaD Vy Fae Bie + BY
Haas Oats ye ws im Mioaitle, Red ier, Pais st Lata) rst oo qn heabe hiv:
BE a lle BY if PURER ill ii
at od, Bene didlo aah, pre atte, + oh waien Ae
tates
ulate
427 = $1579
DRIGHT BROS. PAPER COMPARYT, )
a corporation, APORAL PROM SUPERIOR
}
Appellant »
COURT OF COOK COUNTY,
Ve
MORRIS °. GINZBURG,
Appellee.
> 4 fal
MRe JUSTICE BARMES DELIVERED THE OPINION OF THE COURT,
Plaintiff ie a jobber in news print paper, Defendant
is owner and publisher of « Gudly newepaper known ae the Daily
Jewish Courier. <After a preliminary conversation between
defendent and plaintiff's salesmen Mulveil, their negotiations
fer the gale of print paper culminated in an alleged contract,
Gonsisting of a letter from plaintiff to defendont stating the
terms upon which the paper should be sold, and defendant's
Roted acceptance thereon, It reads as follewst
"The Jewish Courier,
AZth and Halated ®ts.,
Chicage,y Tile
Gentlemens
This is to acknowledge your order placed with
our Kr, Kulveil fer
3 ears 32" width Rolls Standard #2 Yhite Print,
basia 24436-327, wound on 3” inside diameter iron
‘ ores, rolle 30" diameter. Shipment to be made
< 1 ear duly, 1921. —
Lh Gar Augesl cls
1 car Sept.,1i92le
The maximum price at whivh this paper io to be
se a te you is Sig per pound net cash 30 daye from
te of invoice, alasvai delivery. Ye are to give
a the benefit of omy reduction in price which the
mill mekee during the lite of this contract.
Your signed acceptanee hereto constitutes a
contract between us.
Very truly —*
Dwight Broa. Paper Coe
(Signed) Re Be ttle,
RBLs:S
Agcepted: Me Pe Ginsburg.
Date 4-6-2],"
a
a le Re me ens
H
:
-
'
i
Ly
Se he Rs ~-
= = Se a ar ia
em:
aly
save ‘
Bah gage rte
@tese
~
od Ramet
ws & ” a a wee pas
A009 2 am. «6 arnse, ue aounytaad ghee
fia A poiyae ile ee et seca
Rt ME aVRR
thohme tet .eqhe Yaied wwor'wl <ecdot 2 ef Vhambe: |
eitad std ae medi xeqagtwod YLLab Ste ‘semedtdig baa ‘tone.
asdded wetientwwses yuemtahletd @ Os Rh "See ih
angidjadvonon «keds oLtovins momweiie oP thintata ogg a
ggodethee BegeLh ma aE bedawkatio it panied grt
‘gtentSetel hme ted ov Biwede aged. ‘id ti sede
| ‘sawellot ue eheot a1 ‘abort 6
Bb ede le rh
Cie Sez Re a) EY Sak cy ¢ Ae a ge oe
dohw peoskg robe Wey apbotsomton wa ak 4 ie
“a 2“.
feavk odie? Sh htsbaede wife uehte tn" pon I,
soul soteneih ehieai "E me bower REXOS Ob
oben of oF thom lds . ¢xetomaks ox ikes 4sets
co gE BS Fo
f 5 Neat ; Ot Cra * RD
ad of ah goqeq alsid dolkdw dn & a A
wort ayeh OC dean gon ret teqg oy OF Me
evig af ssa aY «ytevkieok dLawse bees 4
ads dolidw eol«q al geiiewbe: yaa te shteced edé. vote A
stomutnos ati? to wk odd ME Agee Br
& ostudhiancd adored epnedqnoos bemyle w0t
(i a moonted sonxtnes vi
on
The suit is predicated upen a breach of this centract
and the commen counts in indobitatus ssquapait.
Ko question arises on this record as to the fact that
defendant accepted the fiset twe carloads delivered te him and
became obligated to pay therefor, ané the judgement in favor of
Plaintiff is for $1500.15, which includes the balenee ef $1224.60
found by the court to be due on said twe carloads, and 0275.55
fimterest from Getober, 1921, when the suit wae begun. Plaintiff
appeals because the court found that it waa aot entitled te
recover for the third earlosd. Appellee aselgnme orose errors
in the allowance of ‘interest.
a former appeal from a judgment in plaintiff's.
favor for a greater sum we held that the alleged contract between
the plaintiff and defendant wee vague omd indefinite aw to price,
and unenforeible unleve it could be shown that the phrase
“reduction in price which the mill makes" hae an established
technical meaning in the trade dealing with paper. (238 Ill.
Appe 21.) The evidence in the recerd indicates that it did not
have such a meanings Henee, as we are bound by thet decision,
MO action for the salieged contract price can be mainteined,
. On remandment the trial was before the court without
a jury. The findinge and judgment appear to be based on
Gefoendent’s liability fer the recsonable, market value of the
firet two esrlosd shipments, which appears to have been the
Game us the invoiced prices. To that extent the right te
recovery is not questioned. The controversy arises ever the
Fight to recover for the third curlont.
| The first carlond was delivered im July, and the
“second was on September 7, 1922. About September 15 plaintire
attempted te deliver at defendant's place ef business 34
a
}
| feaudaoo eit Yo danend # mogy beteekhong ak thus ont '
| dieuemess axdedidpaak ak edausoe sooneo eda ;
tadt deat ott oF ve eorex akeld mo agahta mors woup La outa
| has mtd od boreviten abnoixee ow twekt ond besqooen
‘% ovat a1 fanmybyt ort? ono ptohowats yaq of detagttio ona
| OD DSALE Ye Comelad odd vodutoat dotiw 08£,008L8 “tot wt vai
SEAGTSS bas sabaoliae owe bis» ao ouh of OF. dxs00 wnt ys oe
Thivmialt aged enw Shwe one mote 2LkOL yredod00 wort ssoved
| 9 hake tame om cen $k gould nawor suiee aid opunged aeus
aout enox9 amaiecs maLiogs), »daokiwe butds odd xe seyo
— ninosetet te somemedia Mh
alg ai dasmghat, 2 werk Leeqce amerot am.
minieddnentins sogatin ef) dade bod aw sum metnome 6 1 Pam
2wndug Bao etlattphat hae suger aw taodav tod Bas Yrkdmh
Sinmdg etd tad aware od biver 2% suakas eldipup’
bedekidedes me sat “norton Lotm ott dokdw volng mt monte
oLEX Bet) otoqeg dttw yabiaod oboud ped mb. oataam: a
Bom Db $2 toms oasootnat rxooen ott tt oonsbive edt a .
‘ateletons dedt x heed oxs ew ae yeomell spuhasen a sows .
hemkwinkes a aso yolag Joaddacn bogoile ots, x0? notsos
a
Suotst ia Stow acl exeted saw Lake e169 teombegmes, 90
SRN woe hoa ane
me beaad od of vase Ixoayiu Aas agutOnES OM ny
ond Ye gulav soduem . eidanoanet vate 26% walgheoas ws sabine
asd eased svat of wteoqee Motte sesuocn tas o00ken0 oud Om
iy in a ie Be Fas
ot daighs vit smo 9m0 dass oe: “seolng booteu? ede an
magi Si se aR
ant 20ve osu dts ywroroxines oat “sbemokeaeuy sot
16 ye Sodus j Oty Re Ae he Sia er Goa Sah
aheateet men I wr . a
SE oe ee
att
Asie Be pein
ead dace wet a Nine ttin' nl me
Ee ONY
Viksaiolg Sf cotmedyod swede HBO 48 30 rs ne ie
dé saomiand ‘ho eoakg alimabmoted 4a sovbtob’ a
se
Frélle of paper from the third eurload. The evidenee ia econ-
flicting «2 to what took place ond war seid at thet time with
reference to neceptance of the some. The tectimenmy for pleintiffr
de to the effect that defendent did not have reom fer the same
and requested plaintiff te store it. The testimony for defendant
fe to the effect that defendent refused te accept she delivery
on the ground that the September carlenad called fer in the cone
tragt had alresdy been delivered. In reaching ite findings the
eourt evidently sccepted defendant's version of the facta, and
we gannot soy that it was mot justified in eo doing.
The third car was compigned and shipped to plaintiff,
and after defendant's refussl te accept ihe rolls so attempted
te be delivered by plaintiff the entire esarlead was stored in a
Warehouse in its ow name, and rvemsined in ita powsowsion and
umder its control during the entire time <fter the orrival of
the shipment. On such 4 state of facta the title thereto cannot
Be aid to have passed out of plaintiff, The proof therefore
444 not sustain the count of plointiff's dvcloration predionted
@m the theory that the preperty im the goods passed to the buyer.
| The counte predicated upon the refuel to receive the
Goods are manifestly based on paragraph 3 of sec. 65 of the
Waiform sales Act. (Cahill'e Stats. 1928, Ch. 1210, par. 66.)
That provisien of the statute provides that although the preperty
ta the goods has not passed, if they cannot reatifly be resold fer
rf Fexeonable price the eeller my offer to deliver the gooda to
“the buyer, and, if the buyer refuses te receive them, my notify
buyer that the goode ure thereafter held by the selicr as
for the buyer, and thereafter the seller my treat the
# ag the buyer's onc may maintain an action for the prices
evidence tended ta show thet they could be seld for a
“KOo we sonebive af? »hootime bubels oae mont pr ap Ye
dvhw asks dooid ta phew one te ‘ooatg ood saw as ‘6
epi SRE ih)
wesntala “tok wien toe8 ont + oai98 edt ‘te sonnsgroos ed ws
i, “gas oat co moor ovec fon bb tashuoteb “bnakd jpette. ont
sasheokes 20% nom 3008 oa? oda erode os bey 7 hake ie | na oe "
wre htod ads dqoone boustor emobawted ‘batt La
“woo ot) wh set betian pooksne sedmasgne one teas sawora Bis e ;
mar
said wgntiml? ath yaddoor at sderwytted mag ybuonia hed &
beies anno oH? 0 moloxev etéanbaetod potgerne ‘vituohive we
| vumbeb ov mt boltitaw, tom now a ‘jail ou Oumual
eVetihtatg ob weqgtite baa bomgtenos vow sob buts ‘pubd? edt ve
bosquests on alles ost tqo000 oF Loswier ‘ettuebeo tod or 2
a at svete waw bookies ‘pitdae ‘pal Tiivale Wi beteviied’ r
bh AT pai a ed % Wish
Peta Ho lesevseg adh mh bosttemes ‘hea vena 80 aot mt ; 4
Ye Kevivee ode toes out? wxkeme ade ‘aabsuo tousnes ane ‘
Saanso odors okehe ort ‘adoak % Study ery o staomgiie 4
exetozets ‘toorg oft Thiintaty te tuo ‘beang ovad on reg
botae kaorq nokinxclood etWakomdetg ~ ines “ht niadeue on
i ae Lahn wif
f eee aid ot bewnag ahoog odd ‘ak wrageny ‘oad “pads wedi eal |
da hacaanae™ OER 8
| is oviaces 6! Enoutox ome oe bedsot dong ® OS
3 RE Rese ES: Rae Cro
eas ‘te U8 vose eo 2 slqeratos no besad yodoethem ona sh
{99 sig “eA ey “heer ededl at tbe eee tees ented oat a ao
wiroqeny dds dpiideite dadd wehiverq ‘aduande odd t9 a0 bv aa
mot Afesst od Yitinex Jonnso ‘ot ‘Gt "tee SM sgn gh Mo
of sheog aii tevitob of worte wm 1 xakion ot
wotsen an aa sit 0 soar abi at 2 oe roe
| elt Sooxd Yo token ot
pete Pig sg pe eh RSS Ct) 4 By WIS, Mee oat
eatee ass ban 4 os at a |
RRA L oem oh "e wake “ :
- senkeg odd <et ‘dettos na mis eT ic
4 pe aig be i rk" ae powsuse, ene En ee | Pi
a ol bron’ ed Ativos ‘gots suits woth wo :
Haw Pe ip eS ypeaiiinaie tke st ng ot ides
cha aban al were. fh
deo
price greater than claimed under the contract, and on before
gtated, we have slready held that the contract is not emreraible
as to price, Vurthermore, the facts az adeve atated do net
imdicate that plaintiff held the goods as vailee for defendant «
There was no notification te thet effect. Om the contrary,
they were held in plaintiff's own name. Under such « state of
fects the proof did mot suppert « couse of setion under the
special counts. Plaintiff was, therofere, relegated to hie
Gause of uction on the common counte. The evidence doce not
Support a stated sccount, and, as above stated, it does not
show thet plaintiff sustained any demages from the refusel to
Receive the goods, even if there was an obligation te resetye
thesi.
In view of theee conclusions of fact it is unnecessary
to consider the various points of law diseuseed in uppeliant'«
brief, for thore could be no recovery fer the third carlead upen
the evidence under any theary of the cause of aotione
The question of interest raised by eppellec seens te
be well taken. There is no basia for allowenee of interest ander
the statute upon the facts of this case unless there was un-
Peesonmabie and vexatious delay of payment for the first twe
Garlosds. The evidence indicates thet in September, 1921,
@efendant questioned the vinding effect of the contract with
‘Teference to the price for the first two carlonds. This was
‘erere peynent would have been due under the contract for the
‘Second curload, and only about « month or so after payment
‘Would keve been due for the firet earlosd. The suit was begun
about & month theresfter, end thus far defendant's contentions
tave been in the main sustained. It was said im Sonmis vy. Clerk,
+
yQtexinoe eds of abontie todd of mabteotsieen on pats 23
to state # dom a6de «eons mee a Itheetela wt bfert wy
em? tobe moksee %o sume 2 PrOgEER tem, bbb ai ont ae
ahd of badayeler ,oxwtoneds snow ibs ee Le sBimuon, ; 2. on
tox soob omebive oT sadmvoD mommon, ect Bo. sozson 30, vi
G0 BeOd Th pbEseFe oVOdA ue gbuM «smIOVDA dedoge B HOG
et Leattex aff mox?t sageach wae bonkadeum RRL. a de tat
wy belay ee me ltrgkiae a mew wre Ub neve PnOne IE
/ oF ps 4 a4 aa i
Moy oF ah Bae
YIaeweoomm ok Th iit‘ iliacil ( wely a
elineiioggay af beoewneds wool Re edatog amehiay add ¥ kaned
aogy Saeizae detae ents vas TRovanON. ono DIMER OHS HOR 4 ‘
“ smokten To oateo edt Ye yrosds ym cohey |
ee ames: selleqga Yd beaker saetegal Yo woktagup oat ce
wohnus ¢éoredmk XO oomewoltn 19% ulead om eh oxndT «astad '
ht tow acoad oneiny goey ald? 30 atoet oxtt emt ‘
WHE Sask wis tot tronysg To yeleb eueliaxey bmn eldanan
CEREL gtedwatge® wh sans endaatonk ssHove, 8a +8
thy Sooxteos eds Yq dots yrthaid oft peaeisqeup sand
eow ahd? subesdtoo ond foxk? old tot aokzg ont! oF gone
sremyoy etle oa 2 cidmem éuods ay Krag ANP ENE, ; ne]
‘eae daw FRuw OAT hooks #oxkd ond xOX ob bed aver ot}
hae hs ede neameahneinigincs oma ae a. ft ‘
NG Gee
oS
13 Tl. S44, S47, that no fixed rule con be laid dow by “hich
te determine in every cave wheat abali ecometitutie euch umreseon-
able and vexatious delay of payment os will entitle the erediser
a.) interest; thet the question must Keeessarily be determined,
to & great extent, on tne circumstances in each portioular qaae,
amd thet there must be soacthing more than more delay te
| authorise a recovery of interest under this olanes of the
atetute. v@ 60 net think the faste of thie case ering the
eleim within the conditions when interest ia allowed. Gon-
sequently the judgment will be revereed with findings of fact
and judgsent will be entered here for the ausunt found by
the court te be due for the first twe carloads lees intercat,
Ramely, $1224.60. Bach party will poy his oun coutse
BLVERGED WITH PIRGINGS OF FACT
AMD JULGRENT HEAR. POM O1284 G06
Gridley, Be day amd Piteh, Jey concure
tonsn yE mob Lak of seo otis bond? on 498s 108. 4AM, oft
| nosso town sturtsenee Linde tome gege Koyo, wt. enjumres an
nos ies one okakene. Ehw ae dmesg TO yalad. apetzagey., baa,
roomieceses od Wttonssven, femme met yous and 2am, Aseonetas
1880 sale lene apae mt mooted amumELe mia AO gtaadae a ee
ae aioe ore, rest won Bahl erveme eS Gti axed Bad
onl te cowale ahs asbew dexetal 20 Torsone» gastos
“ie yeeg ous obs Y0 vor? id Amist 206 93,0. oni
ono) shewells at fuezesnt medw eaetotinqa ibisagiothie
cseorotat onek ebondsse | ons. souk one x0? ou bo oe
uN A octonn abt we tiin we10g dont “sone nsest ,
OORDIRIE 5 Ww ’
ha Re eae MR EE BRIE npn
go iii eae ee eed ties ee bine’ “we «veil
si he RE SRR! RS name Ave i
RI Ge ca US ROME ot et Mae te Ma Nas Sa SF acpatain ave TRA Ree ue Ways hood Ait A
u CO a ee hee Wiis > gu a Min A i eR x : « eupiab deo
Hebi A ina Man neets OL ORS UR MR pina nears MEY
pacar done hae UR aR pnttaait ta Aa Wi a ame at RY ek sins ing aaa
oo Mab TGS Ree Ve oa SG aa NR OND CR a le wht natant
ween Ba nee latges ale) Sake Chahine tak att DRO Mee (waren AP area shasengol
Me dee aane RCO QM CRINGE RE death! Si aS bay. eal, me ‘ none
Ay MRR NG Ap DONORS I a ocr aE PRA HR Eta Pee Bi paling, 9
ei pin Pes am ‘ iy Cy Whe iy Ai, Bee prea * ih a ne fs . hs
aren! eR, +: ye Ranga ME et a a ASAD MAIR... EGY bcd wot ni
CC me A ee mE ae mee ayes CER,
vis. Bey aia Rn ada bay 4th awe. sexta Bk, weenie ii
PINUINGS OF FACT.
We find that defendoamt refused to socept the third
of pauper referred to, that pleintifl retained
ssession thereot after the refusal, thet the title therete
as i mot pass out of plaintiff, thet ot the time of defendent’s
. te aceept said curlead there was & market velue fer
paper equal te the awount of dumages claimed by plaintiff,
that plaintiff sustxined mo damages.
DUR eR RE REITING
Hi
Galas ond sqnows eo bushes sankmeteb dad yeh? on |
edareUs eLULd ane dads yhaawtor od? meals dawned:
a'eauhge teh te oaks ods 8a dads gThkeatake Re due, a
274 - 81406
JOHN OvIaNTY,
Appeliant, APPEAL. PRE BOWL CL PAL,
ve ) OURT OF GHIcAgO.
ADAM KOUTKA @t als, )
Appellees.
oy A
WR, JUSTICS BARNS DELIVERY Tem OPINION OF THE COURT.
Om om affidavit ef dufendantes a judgment aguinat
then entered by confession upon a judgment note signed vy
them and puysble to the order of plnintir?r tor $2000, with
interest, Was wet agide oné they wers permitted te appear
ane make a defense, the affidavit to atami as their af"idevit
of uerits. On sutmiseion ef the cawe to «a jury, the lewues
were found against pleintifs.
| Only one question is rived on thie appeal, namely,
whether the verdict was not agninet the weight of the evidence.
| fhe defense sot up in said affidavit wae that the
note Wee given solely fur the accommedation of the plainti?f
one for hie use and benefit and was witheut comaideratiion, and
tase plainviif defrauded defendants im evtaining the note.
It appeare that plaintiff head been conducting a soft
erin parlor that was closed by an injunetion orders that he
ft Teards purchased the buginess of anether acft Grink parlor
furnishings, ete., from One Joe Grawiez, at a different
- my that «ftor running the same for about five doys he
: informed by the police that he would have to close up or
11 outs thot he and adam Kowtka then entered into an
ey
MEEOTMEM BORG data Mint adem Loge. sak
—e8Gat iho Be TAU
ee oe ee he oe
\y Py ; » page, om"
ifPGOLALE ANE i.
ehAER? We 49 WorKIse aut sunuetne sumac an08e4 L
tuntone anougdul # cdaaban ob te ‘dbynbltte ne oF
bei et nediale oon deonghet 2 maqu i nolonetnon go Bie
ey vad cet St ‘Wlentalg te, tidz0. ‘uit’ 9a pet
oO adide OF Bodelenveg oxew yas ‘poe obhea’ porivon
piviingies <body aa nadia ot Fevobiite sds Jonaeten
eeuiat oct oQreh » te ey Epo ~ adtem
\Vhteatete sembage
a ehosan sTOORen: wits mm hectet ab soltdeawp ano ‘eit
eoomebtve od to Silg door vad taninyes ton sew dotbuey one
dit tact wow Shycakito blue at qu gon venvtoh OAT | |
TAdmiake es Yo mossodommorDe odd rr YLoloo aovly aaw wi
bas gtolintedinney Ipodsiw aow bea er tened one enn abt wok |
sodon wld guimiatde Of etuebueteh Boauwr'bod | - |
Ston n qabsounnes wood buat Piddalnte tadd. exaeque dT
oi add setae meliomutnh ma ue deooke ‘qu Baas setae
‘welnag, Mahxs Slow sestteme Io awenisgdd one heeedousg «
dno rid # aa ecolvaw? oat ro mort goee crannies
on woh awit Spode ‘eet oun old acme Ode dead
on ti'sende:bt wed chien wt ae a
ne obmk betedae gone soleveX mahi baw wt Sotd Yaw Le
Pe
arrangement whereby Kostka teok poosesrieon of ond conducted the
g@-cnlled soft drink parler purchised from Grawies. The
transection wae evidenesd by a lease of the premises from
| Orawies to Kostka and the trensfer of the license of Orawies
te Kootke ae a retail beverage dealer, and alae « bill of sale
‘trom Amnie Svienty, the wife of complainant, to dam Kosta
Of the stock of goods in said premises, consisting of cigsurete,
cigars, beer, tobaces, claseware, and slao of the good wili of
“the business, in consideration of (1650.35, and evidenesd «also
by the judgment note in queetion. ‘hat all of theese documents
wore signed end executed by the respective parties is not
quentioned. Koetke took pessession of the premises eso leased
te him end the etock of goede so sold to him, and conducted the
‘business fer a peried o° three and one~helf months, when the
place wae elosed up on a tharge of his vieleting the Gram “hep
| Aet. The papers bear date im July, 1923, ond he took possession
| of the premises about the 15th of that month.
! The burden of proof was upon defendante to sustain
|* their defense. They were the only witwesses for themselves,
|The court ruled that the wife was incompetent te teetify in
| vous of her husband. er evidence remains in the record,
| wt is very meager and dees not sufficiently bear upen the
& to have any purtiowlar fores, even if it were competent.
The main poimt in dispute ie whether said written
7” S represent # bona fide or merely colorable transactions
0 A thin question of fact plaintiff and Adem Kostka differ. But
| he burden was on the latter to sustaim his case by @ pre-
; e of evidenee, and we do net think he did. He
mitted that he paid the rent for the premises while he was in
ere at the rate of $50 a month, and did mot deny that he had
on? hatouhaen baw te molaseacoy toed adteeh ydovedw tmom :
edt senlwax0 MOT howsrterme sedsog aekeh shen ined
moet noatueng ens lo goael a yd beomebiro saw mene
aoivex® Ye anneok£ ef? To teem? ed Worms #tdeox a
eine % LL20 « oola bas ,xolooh egoteved Lhavet « 66 ald *
sXteok mab 0? «tmaahalqnos Yo ottw ext eVaotve iit
satetigte ‘to gaitatanos woatnorg bise ab ahoop to Loose -
te iftw’ boos oxtd te odlth’ ible sorewsenls ,ovontod sibed -
onan beonmoive hae POC OUSLY Yo moliotebiemes me ren how <
atnomoo aor? Yo fle saat .aptioowy at ofon Susimbut, on
fom ak tolixag evisooqers ould qo dedeoero ee, en 7
boast Om Keelmetg af) Te motcanecog Love ebtaok |
O49 Detownmes bite subd OF Akoe os ghoon to Meets ed die oobi
a) nose guidmen ULetoone hae sonld Ye dodreq @ Tot. sepa
qoute mont odd gattatoly uid to spredy # ae qu deat 49. Ae ‘
seksaonacy Aged et baw glSCL gydal wf ated saed, cot edt
civ! oa oe jgehtom ded to Mees ade tuode wee tmong. &
gietawe Of atnadseted mogy aor toorg, te aebuad od?
smovloampede 0's ‘wowg ond bye <ime edt prow, Nome uw teh 1 ti
Rh Whines O35, sow doqmouns gow phi. pad todd resonnboe |
sdxeoe” odd wh amines conedive coll» dmadaued. worl 29, 2a
odd soge awed Ydawdadvhue som woe, Sha copes, yxov ba
ciuedeques puey 22 31 more .eatok takwors tom, wR ovad OF we
medehew blow xeddedw ot edayalh mt dmdoy, ahem. edienan
snob someunne elderetos YLeorex ae ott aust # smonpaer a
| ROKR mend moby bee Tibdmtake Pow Reps woah sa
eR, & RC geaoatd windows oF Rudsed, ont anak
wa obi ont Babes, Am sb, em Dem, « OR NREE: MM o
mt ce a site soadnse od to2 dvs old hlaq aa tnd bob
oct ext dail? ‘yd Fon DAD hem sltwom @ 08} YO ofet odd S0 ove
paiéd interest om the note. He admitted thot he operated the
| business for the three end one-half months, alates the stoek
| of goods and chattels tht were treueferred to nim, and thet
| he replenishes the stock with moneys he took in from the
: business, which amounted to from 05 to £10 © Gays ams that he
never made on accounting of the game to plaintiff, and that
| plmintire’ never asked for ome from him. it alee appears tinet
| when the business was closed he took such chattels as were
| mot temoved from the premiges to his own home where they appear
te have remained. ?laintiff denied dam Kostka'n testimony
| that the tranenction wae one for hia accommodation and not a
| genuine saie, and seems to be gapported by evidenoe to the effeet
that Xoctka at the time of miking the purenave sought to raine
| money for that purpose, ond mot being able te co se, gave his
note. There was no evidence vhatever of fraud, ae pleated by
| Gefendente, emd it is difficult to reconcile the execution of all
the papers aferersi«c amd the giving of said note if they were
intended ee a mere matier of form to concesi plaintiff's ownership
|
of the preperty, or to wunderetand the neceavity of defendemt Adam
m signing the mote and procuring hin wife's signature thereto,
| Of plaintiff silewdmg the mittes to rum on for months without
amy accounting for tha prefite of the buminees, if it
&@ more pretended tranenetion.e
We tidmk the verdict tos agaimst the «eight of the evie
S. The judgacnt will therefore be reverued and the couse
§ beon tried by @ jury it will be remanded for a new trial.
REVERGEL Ab REMARDE Le
Léley, P. Joy and Pitch, J+, congure
: My /
ny
dt dodnsoge ad sede Seddamio al etn edd mo deers th
3 Unosea od ombhson esti nom Teleome Sea goad? ed 20% gonad :
i das bee gabe oF SuTEM ARID? oF dade eiedsoria han ahoom
|: tt ext sh howe. ot aqonon date weose ett . :
Pye Ane «Kab 4 O68 of 8 2072 98, desraomm cinddw oo
<aiirvaitsntais in > onesie
feds punegga pale 43. «mis monk ene 793 aeine, saan mh
Bhd oan, «08.00, re aida nacho fon, bus speoqemy, fod, 303, eH ,
Ud hebasiq, vo ¢buazt eo novodady axaedive of, mw POE ot
tO aosimpens add eLiongoss 92. siwoksiip Shed eine xo bane
roe quis 2h stom Dine, ‘te grtwhy ond Ame obaws obs
qidarxemo a'Tiisnlal, Leevnes od axe? te ceddam, eran a snails
Msbh AnAMeRd KO YWivswoam ons Onadenvomm of to achat td 3
seiorets oaubemgin a'etlw efd paisunesg bie odor oat - wok aides
tara be aalttes C02 BO ME OF xOd tome osld sac Sb vahada, 20, Ae
dh Li ganoniamd gy to edb hong ade sak watoraenn,, fit 2 tk :
| MOR RARNN, De RERIER, 27R se:
okee rs 29, 6, bali, oss, anion aor foshaey, eae Sate ies
a9) SRMOD, ot, bie peateTe? |e pre teeas. site sopagdet, ont ®
efakes wag «20%, hobmamm
Sh .. eo —
.
|
AAA eile ( rit
| 4 at 4 Ve
302 - 31454
GOLDENROD ICE CREAN CORPARY,
}
a corporation, ) APAAL PROB CIRCUIT COURT,
Appellant,
G08 COURT? .
¥e ae
Appellee, }
MR. JUsvics BARNES DELIVERED THE OPINION OF THE COUMT.
This ie an appeal from an order ateyimg an execution
wmtil the further order of court that was issued upon a judgment
by confession entered against ccfendamt on Ria certain
promissory notes.
It is urged that the order ig not a final, and, there-
2 HOt am appealeble one. Im that. contention we concur. The
; “until the further erder ef court" manifestly contemplate
aetion of the court, amd thet the ercer ia temporary
i tits msture and not permanent amd final im character. It was
ae held in a somechat similar order im O'Hara v. ?enneyivania
Bake, 2 Grant (Pa.) 241, where the execution was stayed until
*
othe: pending preoeeecdings were fimeliy dctermined “subject to
su " further order of the court as the justice of the ease may
her require." The questions presented fer consideration,
fore, ae to the extent of the power of the court te stay
execution, and vhether it was abused, sre net properiy
. use Being without jurisciction te entertain the appeal,
it must be dieuiseed.
: APPEAL DISMISSED.
¥, veo Jey and Fitch, J., concur.
DBO eA Eth Rls > eto
es
i Taleo 2RT to woTMred amr caevict" enti |
; ? abrg@ESS vd
‘ mahiwooxe ae aatyeds 3 xobte | na mez? Laoage ae at oka
‘ tnemghel a Roger pomees | fae jad @rwee ‘te sehee 3 4 ‘
Cece weet
(sisdia9 ei a8 fate beso tsb somtags hototen |
PP
qi Sed ORS AS x
3 ~sred? Sua s£ag!% 9 $0m at sobve ods sods boqum ab T i
. ost. + tuanes a mo l?msnon doms ai id efdatanege an fom 48
aiaignstnes Vidvotione “dumee te sebae Teddies eds ® ie iktew"
Sg aet pet +
| Rustogmnd ok T000 os Salt me 4stu09 a Yo wonsoe
pang suespstads ms feait ated sapaant eG, aginst cnt ceie Ho
ee eee oe oe ee
dnbiunhiones ze? botuonens flashes, ae ae
Gale 22 fuses asd Ye tonoq alt Yo seetae of? 09 ae .eteteT
RR: SONA OPE AE Ee ee
‘SCL Gh, Lae sdesgtaads ots aaa
elZeBIRTI DAseta
“
wasn ce aod aur ort +5 ea
wee
mon OF THE STATE OF ILLINOIS,
Appellee,
: APHAL FROM MUMIGT PAL
: Ve
5 COURT OF CHICAGO.
: S corporation, isi HHATA Cee}
OR» os 2 Y, d ¢ Ly . ie as E ‘
‘ sppetient, 9 JHE olde OD @®
o TUATICK BARWES DALIVERKR THE OPINION OF THE couRT.
The appeal in this action presents the same questions
‘have already been dscided in another ease having the same
; b» Hos 31456, consolidated herewith, in iaace land have
aie day filed an opinion reversing ond reminding the judgment.
ne Some order will be entered in this oase for the same
REVERSED AND WEMANTID,
¥, Pe Tey and Fiteh, Jo, concours
As
| LAT OT MN MOAT Zareta
sODADTNO FO TaD eve Rae
NBO Bled Sen
| neo ane 08 waturt ‘at camartane rete sit «
sp Fogg 3 aap tees oe gee ‘saahgreen't oes |
enkhouniiy oman, ade poorer wastes otee at SACHA AF ctw
sane os ytivet eras tediseme at peal
i Ba
sTme00 YaLac
ay ee,
5 ont 203 oen0. mgt bezetno of em,
oa ae, am TC | RA Cav EA Bed ae py
sade ees b iteee
HE RE ES BOC id % ‘ we. B 4 oF RY aR gua VERS) TRB
i, EAS Na Kk A Fd yee Sra c) OR
wile “suave te eHoght berm Soke Pt ty
Mea ay gee tie;
NARS SHG ie HERES CROLT Go See eR aa nigga Aba Baten mt om errs,
ii tna a ae See ce ee uk emits meta Tem ree oda <
4, he
Sw? ton Rea: Renae dl ate oak, ue < ekangane J
yeas oi ey Gee Ty set ip eee, “ae ae gels
ME eS RAG aS ES. an RIAN) MSH ate cata hoa Comet ht oe rr
Se CEE Oe ay ay eee RA Pee i) 6. RRR eye 1, MRE
i ; Dt
ohewelewnks oe Rea
RRR gies gy Ne ae, ei, ak hy eS, ogee
326 - 31488
PROPLE OF THE STATE OF ILZ.INOIS,
Appellee,
APPRAL PROM
ys ve MUNICIPAL COURT
nN oP ourcAgo.
WIIWAUKEK DAIRY company, ae
& corporation, DA A
a Appellant. hed ie Se
om. TUSTICH BARNES DELIVERED THE OPINION OF THE COURT.
iy) ¢
i wd
i The appesi in this action presente the same
westions ae have already been decided in another case
the same title, Woe 21456, consolidated herewith,
| which we have this day filed an opinion reversing
md remending the judgment. The same order will be
in this case for the same reasons.
REVERSED AND KEMANTE LD»
@y, P.» Jo, and Fitch, Jo, concourse
IoMA—
AT A TERM OF THE APPELLATE COURT ,
mand held at Ottawa, on Tuesday, the fifth day of
October,
and twenty-six,
ee
State of Illinois: é j i.
3 .
ent--The Hon. AUGUSTUS A. PARTLOW, Presiding Jugtioe.
aoe
Hon. THOMAS M. JETT, Justice. i; ee
p
Hon. NORMAN L. JONES, Ju
JUSTUS L. JOHNSON, Clerk.
E. J. WELTER, Sheriff. »)
ce
BE IT REMEMBERED, that afterwards, to-wit: On
FEB 21 1997 the opinion of the Court was filed in the
Slerk’s office of said-Court, in the wordg and figures
following, to-wit:
within and for the Second Diits fae et Pe the
oe.
in the year of our Lord one thousand nine hundred
rae a inp abe pa mint
rf
;
7569 (April Term, A.D. 1926) 3
- Milton Halowell, Admr., etc.,
Plaintiff in Error,
Error to the Cireuit Court
j VSe
a of La Salle County.
_ Chicago, Rock Island & Pacific
N
a
%
al
¥ Railway Company,
4 Defendant in Error,
af
on This suit was instituted for the purpose of recovering dam-
4 ages from the defendant railway company on account of the death
of Howard Halowell occasioned by a collision between an sautomo-
bile truck in which he was riding, and one of defendant's passen-
_ ger trains at a crossing near Ottawa, Illinois. A trial before
Da jury resulted in a verdict and judgment in fevor of the defend-
ant.
i The defendant railway company operates a double track
railroad extending west from Chicego through Ottawa and into
Pieus and other western states. The highway running west from
_«Ottawe is south of the railroads Between the highway and the
Pyailroaa is the Illinois and Michigan canal. A short distance
na th of the railroad is a range of Illinois River bluffs. At
68 point almost due south of the railroad tracks and 3.93 miles
West of Ottawa, the public highway turns to the north, crosses
F high bridge over the canal and then crosses the railroad right
way. This crossing is known as the "“Moriarity Hill Crossing."
On March 10, 1920 plaintiff's intestate, a boy fifteen
years of age, was in an automobile truck with Albert Windus
Bnd the latter's son Ernest. The elder Windus was driving and
at on the left hand side. Upon the same seat were his son and
ard Halowell. They were returning home from Ottawa where
ney had been in connection with some business of the elder
— (a8ek ocean
ete ont
sawo0 timesiO edt of torri
oY Fried effsc ail to :
" otttoat i Bis tat
aw RBG A aie Ri 2 bind Cathoe ay sy ;
| eign
,TOrTe at snaboetet —
De
abana: A valomtiil ,swatto teen jd eae’
sharstes ott Yo teva ‘at tuengivt Sal FoLbaey ae ak”
otni brs swetto dgurowdd ogeotdo mort teow sutbaodee
mort teew gainarr yawdgidh et radii nrotaew neddo
edt bs yawigid eft noowted haosties wit te atuee
eéoneteth trode A
digiy bot iter eH? eekauts’ Hed? hak fando ont ifovo Sai bin
hinsdaunuiciaed ILL ytiueixom” od? as awornl at gu taaoro etiit
seottii yod 2 etsteotat attitntelg¢ oser Or
avhatw tredfa dt iw stonrst aide tae a8 mk eew ,
Brees ariveirs asw anbaotW xebLe oT
‘Bte moa etd erew taea omse odd nogu gee
etsdw swaitO mort enna aicintie erow silt
‘g
-2=
As they were attempting to cross the railroad tracks they
were struck by the defendant's passenger train No. 17, which
had left Ottawa at 10:10 o'clock on the west bound or north
tracks. This train was 18 minutes late. An east bound train
left Utica at the same time No. 17 left Ottawa. Wo one on
the west bound trein was eware that it had collided with the
truck; but the engineer and the fireman knew that something
hed happened because the blow-off cock on the south side of
the engine was knocked off and the steam was rapidly escaping.
The train was stopped as quickly as possible about one-quarter
of a mile west of the crossing at 10:15 o'clock. About the
time this trein came to a stop, the east bound train on the
south tracks whistled and went by No. 17. The eseaping steam
from the blow off cock was so dense, the engine-men on the
. east bound trein were not able to see the automobile which
| head been struck by No. 17 and thrown onto or near the east
bound tracks. As a result the east bound train struck the
wreckage as it lay some distance west of the crossing and
= the three bodies over east of the crossing. They
\
ae
_ were all badly mangled; and no parts of their bodies were
found west of the crossing. However, most of the truck was
found there.
- The weight of the testimony shows that at the time of
the accident, the day, though somewhat cloudy, was sufficiently
ser for people to plainly see a distance of one-half mile.
> railroad crossing was equipped with an automatic bell and
either side was a "Stop" sign. The sutomatic bell was
n to have been in good condition, having been tested the
a y before the accident.
The declaration consisted of ten counts but the rd, 4th,
6th, 9th and 10th were dismissed; the case was tried on
© ist, 2nd, 7th and 8th counts. The first count charged
ates? purod dace MA otal neath er aaw y mbeet ta
“mo oho OM sowsdtO Stel VL ou, omit. omse edt a.
edt dtiw bebiffoo bad tk stadt etsws asw alert. 9
guidvemoe tad’ wend camexlt one 5a ‘xoentgas, @.
to ebie dtwoa edt no sooo Tho-wold edt. ‘sussvod
-giigsose ylblqsx asw mseta ent baa tto beadoomst ace
. tedtespreno tuods sfldtaaog as Yldolep as boqmods eew
edt dwods .Xo0Lo'o 8L;0L #s gmtaaozo ext, to taew
edt mo ated bused teas edt ,qote s of ems ‘niet? at
na baitialladieaniiai ed? SL ,04 yd taow bas betiatan
~ pte: tisd-one be spmededh a meen shatere st: of
bas Ifed ottamotse as diiw beqqispe em, autaagro bec
wow Iled otiamotss edt eftg de | "aoe a pod Ob.
ae
negligence in the operation of both of defendant's trains and
that the plaintiff was struck by both and died as the result
thereof. The second count was a general negligence count and
charged that plaintiff's intestate came to his death from having
been struck by one of defendant's engines and trains. The seventh
count charged that the death was the result of the negligent
operation of one of defendant's engines and trains in running
them at a high rate of speed without ringing a bell or blowing
a whistle or giving reasonable warning that the train was approach-
ing the crossing; and that plaintiff's intestate was struck by |
said train and thrown between the two rails of the adjoining
tracks and while unconscious but still alive was struck by an
engine and train coming from the opposite direction, which train
the defendant knew, or by the exercise of reasonable care could
have known, would pass the point where plaintiff's intestate lay,
and the defendant negligently failed to stop seid approaching
. train. The eighth count was approximately the same as the seventh.
The question to be determined is whether the verdict for the
defendant was werranted by the evidence and the law. It is con-
_ tended by the plaintiff thet the morning of the accident wes
dark and foggy; that the epproaching train from Ottawa was travel-
? ing at a speed of approximately 90 miles an hour when it reached
_ Moriarity crossing; that there was a curve a short distance east
&
of the crossing which obstructed the train crew's view of the
"crossing and also séstructed the view of those in the automobile
* Tuck so that they could not see train No. 17 as it approached;
that no proper warning was given of the approaching train and
that its speed was excessive and dangerous under the circumstances.
‘ Photographs taken at various points along the public high-
Way south of the south rail of the railroad tracks as well as
; testimony of witnesses on the trial conclusively show that
thstanding the curve in the railroad track and the cloudy
‘ tree eHxT “see ene er 2 tfnis Sab is
yd Moovrte ese otgteotet a! tritatale er’ bas
ied te bee! yrottoor ks stiaoqad edt moxk aubmob bi
BLtreor stan aldaroassr’ +0 selorexs edt td to’ vane
wet gtatootrt e'ttitetala eet taetog ett avaq’h [sre
guidesorqgs Sise qote ot Holter Pltnegs faon tas
(ect RO wokvoatwerg: shard ene betourtedo Motdw'g
elidomolas sdd-me aeodd Yo weiv odd bodourteds 08.
jboedsséxade tious VI sow mhexdowoe don’ biwoo 0
pas aistt. gaidosoxgda : etd to» nerks cate gotmesw
: aeonstamootio edd Tebamasonegnsh bas. oviaasoxe hepiail .
~4—
_ eondition of the weather, the occupants of the truck from the
- moment they turned north on the public highway to eross the canal
a#né the railroad tracks, had an unobstructed view east alone the
tracks for at least half a mile. The extent of this view was not
materially shortened at any place south of the tracks. No matter
what the train's rate of speed may have been, there was nothing
so far as the evidence shows, to prevent the intestate and those
with him from looking to the east and seeing the train in apt
time to have stopped the automobile and avoid the collision.
Counsel for plaintiff insists that the trein was running
90 miles an hour. He arrives at his conslusion by mathematical
) deduction. The only witness who gave an opinion as to the rate
| of speed, said that tim when the trein went over the crossing
it was going between 50 end 60 miles an hour. The scene of the
“accident was not within the corporate limits of any municipelity
“and the speed of the train was not regulated by any rule or
“ordinance. At such a place the railroad company hsedan undoubted
“right to establish the speed of its train giving due regard,
however, to the safety of passengers and also of persons in the
Dexexcise of ordinary care traveling on the highways over and
“across the tracks. (Partlow v. I.C. Rye Co. 150 Ill. 321.)
i the situation was such that a person about to cross the tracks,
ze the exercise of due care for his safety, could for a distance
ot & half mile or more see an epproaching train, a speed of 50
even 90 miles en hour cannot be said to constitute negligent
Meeaxation of the train. In this case it was show thet from the
nt where the public highway turned north to the south reil a;
TN )
the railroad tracks was Stich teeth ond that the approaching
tr in could have been seen by plaintiff's intestate throughout
entire distance.
He was a rugged strong boy 16 years of age, had been raised
a farm, and had been driving an automobile for st least a
ear. He was of sufficient age, intelligence, discretion and
tom aw woiy aids te. dnedxe ont Lim 8 sie ta tn
ee,
tetten of s.exoatt. edt to stmoe enakg ae ae (bones
aniston aew ovedd need pvad yen booge 3 ‘to ott!
_» wftoteti£os edt Dheve bus sci peieiaa pre salah
Hsesth shit
_ gmkanere aan atend edt todd. mitakans Rama
ak te ofson ef? xvod me wan: 08 fas 08 a, nomad
| et oqto zm yaa to otimty etereqnoe ould mbitiw @ ton om
i ™o elute yaa xd betalegex tom ean alent 4 ott Sue
so teR0%, eu, guivig ofett. att. be. aauk nak
eit at anoareg to cals Sas ategneassg te, ute
Bae {evo ayside tel elt a0 ant lavent0%se:% |
(ef88.i4 LET, OBL ve OD, ARM ue Ded, ook wortees), a
bbe ddsioa oat Od ,ahhron bomtot. cael onan
ih — BSS nd Ma
- gatdesoraus edt dadd, baa. neat ae .aaio
vila to ROWE my DS Sac vale ic
beaters noed bad .,9gs..to arasy oceae meena,
experience to understand and appreciate the danger of attempting
to cross railroad tracks without taking the precaution to look
and see whether or not a train was approaching. It was his duty
to use his faculties in ascertaining the approsch of the train
and to warn the driver of the truck. (Pence v. Hines, 221 Ill.
App. 584; Specht v. Chicago City Ry. Co., 233 id. 584; Greenstreet
yw A. T. & St. F. Ry. Co. 254 id. 339.)
Whether or not the whistle was plown and the engine bell
Was rung were controverted questions upon the trial but we think
“the weight of the evidence largely preponderated in favor of
the contention that such signals were given.
There were no eye witnesses to the accident and plaintiff in
“error insists that the evidence was sufficient to raise a pre-
“sumption and establish a prima facie case of due care. Pursuant
% that view upon this question he tendered to the court the
i
following instruction:
“
—-
"The Court instructs the jury that if they
believe, from the evidence in this case, that
there was no eye witness to the death of the
said Howard Hallowell, then, in determining
whether the said Howard Halowell was in the
exercise of ordinary care, as the term is used
in these instructions, the jury have the right
to consider his habits for care, caution and
sobriety, so far as the same are shown by the
evidence, together with all the other evidence,
facts and circumstances shown by the evidence in
the case bearing upon that question, together with
the presumption that a careful, prudent, cautious
and sober person will act in accordance with the
instinct of seif preservation where there is a
* known danger to be avoided."
ae eee
2 The evidence tended to show that the intestaté was a sober,
ite
_ industrious boy but it did not disclose what were his habits
as to prudence and the exercise of care and caution in the
Ordinary affairs of life. In cases where there are no eye
Witnesses, a plaintiff is not permitted to merely prove the
Tekeident which resulted in death, and then rely upon the in-
wtinct of self preservation common to e11 men to exercise due
sare and caution. He must go farther than that. He must prove
ea aid asi bes santloeoxage aew | kant B _ tom x0 te
foortensexd . 728% »bi SES
at rtieaiata Brus taebtoos = ot eosvent in ove oe r OrOW
Pag BRS
‘oemen. »OTSO aus to ease otoat autzg a Kabsantae 8
cont a tals cot ait inne ek desod edt"
tedt .suse aidt af estebiva edt: lapel basins a ¢
eit to diseb edd o¢ aeentiw oye on saw exedt
gittetaredep ni ,nedd \flewolsh prawol Bias
edt at asw Ilewolsi buawol Bisa edt tedtedw
bears ef met eft as ,o%ses yranthro te sétovexe!
tigix edd evad yrst oat ,anoktoux¢ent eeedt mi
~ Bre potigas eres vot atidad sid - “tobtaton rae
edt yd nwoda ozs omea sdt as tet 08 yee
,sonehive vedio eft Ila Adiv tedteget:
ok eonehive edt yd awode seonstamuorto Fag atost
Ntiw tedtepot. moiteepp tedd negu gaizsed ogee’ edt’.
avolivcac ,TRSDNTG "ives 8 tedt nottiguvyeastg
odd Kiiw sooehto0be xk tos [Lkw coeteg redea
8 Bf oweds oxadw set ara eeeny tiee te ;
*LhEDfora 6d. ot
eden 8 Bay Remeiena® acd: Yeutt wodd Ot bebset oomed
‘adided eta evew tanw seotoats ten h8s tt dud yor.
eit mr notineo fue etes” to dalorexe we aes
eye on ets ered sredwy coast at “omer 3
et Aten matt! routust aig
the deceased's habits not only as to sobriety but as to prudence
and the exercise of care and caution in the ordinary effairs of
life. (Newell v. C.C.C. & St. L* Ry. Co. 261 Tll. 505.) As was
said in that case, if there are particular facts present which
would tend to throw any light upon the question of whether, at
the time of the fatality, he was in the exercise of ordinary
care, such facts may also be shown. In the absence of any proof
of such habits or particular facts no recovery can be had be-
cause of the failure to prove that the decedent was in the exer-
cise of due care at the time of receiving the injuries. Where
there are eye witnesses due care must be proven from what
|
.
actually occurred, but where there are no eye witnesses and no
one to testify as to what decedent did, then proof of habits
ere admitted to raise a presumption. Therefore in the above
quoted instruction it was not proper to say that proof of habits
plus a presumption are to be considered in determining the
i
- question of due care. It is obvious that if there is no proof
a cea
of hebits of sobriety, prudence and care of the decedent in the
ea
Ordinary affairs of life and no proof of perticular facts show-
ing due care, then there can be no presumption. The instruction
twes erroneous because it stated that the jury had the right to
*
pie
_ Gonsider the decedent's habits for care, caution and sobriety,
F:
together with the presumption that a careful, prudent, cautious
Ss no presumption.
All instructions given on behalf of the defendant sare cri-
ticisea as being erroneous. ‘some of the criticisms are not
Without merit. For instance one of the instructions told the
y thet it was incumbent upon the plaintiff "to establish"
his case by @ preponderance of the evidence. The use of the
BAW 2a a 2808 .LIT LOS 000 sgt ad cde’ 10.0.0 Some
ag
erad¥ .eolzeter adt gutvteset to emit edt ta esd: enh RO ee:
tedw mort nevory od tanm eres enh goavontiw es
ett Sainimreteh si betebteroo ed of evs vieuaaaaala
‘ ses on at exedt <f tadt praia ek at 8TRS oni ae
: 4 CE BE ae
~-woda eatost xofwo ttzsq to. “toon on bas our 40 “entatts
are
mores ent -noRiqmseoxg bor on m29 eredt wont oteo: nb
‘ovouit eouedi tote al bas ots to at ded t6 “room on
Hee aS .
“outs to | eax ot soneBtve ont it sonsxetio
RTOS oe Pea
sas
4 word “establish” instead of "prove" has been repeatedly cri-
| ticisea and a few close cases have been reversed because of the
error. In this case, however, both parties committed the seme
; error. The plaintiff's sixth SavheeeVien canbites the same vice
en the defendant's instruction. Courts will not give heed to
- complaints made by one who has committed a like error. (West
D@hicago street R.R. Co. v. Buckley, 200 Ill. 260; Funk v.
Babbitt, 156 id. 408; C.& A. R. R. Co. v. Harrington, 192 id. 9).
Although the defendent in error's instructions were by no means
accurately drawn such a situation does not justify se reversal
of a case in which substantial justice has been done. (Ford v.
Pord, 257 Ill. 241; Mam v. Brady, 67 id. 95).
It is contended by plaintiff in error that the trial court
erred in excluding competent evidence offeréd in his behalf.
The witness, A'Hearn, engineer on the east bound train, was
asked about an alleged conversation he had with engineer Connelly
immediately before the coroner's inguest was held. ‘The court
properly sustained an objection to the question because it was
incompetent for every purpose, unless it was intended to show
that the witness had made statements out of court in conflict
Rick
. With his testimony on the trial. The witness was afterwards
By
J asked if he did not testify before the coroner that the train
4 Was standing when he was 1000 feet from it. Our attention is
not called to the page in the abstract where this question is
to he found, or to the ruling of the court upon it. The alleged
error is not properly presented to us. But even if it were,
the witness admitted that he hed testified before the coroner
and head signed the transcript of his testimony, and we can find
no Place in the abstract or record where his attention was
“eallea to any statement contained in the transcript, which wes
at Variance with his testimony upon the trial. The same obser-
vation may be made concerning other questions propounded to
«tro yLieteoger mesd aad “ovetg” Lo beotank ules tdetao Sone
edt to saysoed Aeavever goed eved seaco eaolo wah e-has boatoid,
enge edt bettinmes sottrag ited | tevewod ).segs akdd ay renee
solv emea add antetcoo oottosttant aitute,.e'tritateta ‘ec core,
ot See ovtg ton Liiw etow0d...aottouttsat al dusheetes, odd am
taeW) .toxre efit s betdiameo sad odw emo.ud oban adnielqmog
2¥ dno, 08S .£IT 008 ,yefsdont «v.00 «% f toorte egsostdy,
a(@ bt RCL .modgntrtel «F400 0.2 Ah oD 2OODueSh MOL ttddes
agsom ox yd exew snoitorttgnt s'tozre at dnebsoteb, edd dawedtia
isetovex s utiten} tom acob nobjsudie stove awash yletersoos
-V bro€). .2aeb nood aad cottart Lettnetedna dotdw mb: onge De
a ek » (G8, bE VO .ChStd «sem 7IMS LIT TS bat
txvop Isitt edt odd sorte at Tittalele yd bebsetaoo eh ahs cathe
-tiaded aid mt Bayetto sosefitve. tneteqnon. guLtbsLome seb bertem:
9 gee ttent Baged dese edd me. cebaiane. roel" Rend kw sod
yilenre) veertsans dtiw bed ed nettsereynos hon Si ae
grseo ed? . ,hfed ear ¢eoupnt e' xenotom edd exoted yhe !
sav tt easaped nottaesp ed? of moktostdo as hontatara aixeqomy
wode o¢ Psbnednt new ti aaelun .,eaoqrag yreve ‘toh good oqmomne
, totitnos ab tives to.duo atnqmetata, ebsm,, ath anend ie one. att
abxewretis eaq saentin edt, »leixd edt: mo ynombtaad ate dtae,
niaxd edd decd romoxoo et oxoted ykideet tom bib od Sh bedea)
af mOituedéa swO .¢f moth, deel, OO0L eam od, ned gntbosta:e '
ai atiiaeup aidd exedw teartuda edt st. egaq edt. of boLine. te:
Sogeiie ed? tk noge txoge edd. to gallon odd of, xo ,Samoh on m
anew 22 Ei neve tof .a5 0%, beduceeng: irons, don oh devs:
Aas
Seit nee ow, bas. .yromitaes jatd: Tp tqixoanest. dé, ae pad na
asw xoitnetts aid exedw buoser to. desrséads edt. ah cosa. Ag
ese: dotdy toitoanaxt edt mb bontednoo. bee ade ene. 0 post 2
~reado emsa edit. .lefxd alt moqw yaomtteot abd dite pace
ot bobawogorg exoiteexp. xodto yu bwneomon. pier 2.
-8-
this witness and to which objections were sustsined. The court
properly emcluded the portion of the testimony of the witness
Smith concerning the condition of the crossing bell between
March lst and March 10th, 1920. It appeared on cross examina-
tion that he was not able to say whether the bell was out of
repair between those dates or not. But the witness, Clark, was
4 permitted to testify generally on the condition of the bell.
e We think the rulings of the court upon the admission of testi-
; mony were substantially correet and that the plaintiff in error
was not at all prejudiced by them.
An examination of the entire record fails to convince us
that the verdict of the jury wes unwarranted by the evidence.
Miiieed we arc of the view that plaintiff failed to prove by
a preponderance of the evidenoe, either that the defendant was
guilty of any of the acts of negligence charged in the declara-
thon or that the deceased was in the exercise of due care for
his own safety when he received his injuries.
Under our view of the case the verdict and judgment in
the trial court were correct and should be affirmed.
Judgment affirmed.
draoo od? -benistese ere enoktos {de dotdw ot tetcas sooty anit
- . PBULMEKS QBOTD: HO, botecque df. .08@L ,dd0L dors hows tal. soma
et. ,2eent iw edt gpl ..dom zo + aeiveeneienne aul
-lisd edd te noistiaucs edd, ao pil steneg. Vibe of bedtimeg
~itees to, seigelads oft soqa tzgoo edt. to: egnifer ont sintiid ot
xouse ak Tiigaisig oft dadd. bas foenzoy: yiietineta due orew yom
ooo) smtodt yd: Seolbaterg Lie ean
air asomivaoo ot glist. S1osex eritae edt to noitentmpxe md ©
-sonebive edt yd Setaerisway.eaw yusl edd saieieinass a
3 ed over. et belist tittaisig. jedt wolv out to-exs ew Beebal
ee taghuetes edt feds teddies sonobtve. add te. SenaTebmegetg
ea -stsigeh sit at begreig. eonagiigzen, to aton out ko yas te yttins
bees “ £0b eves. ovh. te: eatoxexe ont ai-gay: benseces cedtsd adeimeimeee
. seetigtnt-etd-beyieset edinenw: ytetas awocakd
Mi-taemghst bas tothtey,odd ease, edt To woim ame: Seabed «0 my
,houriits ed $iveda bas. tesrneo erew tres Leist edt
“mo too gésacads te. chee God arent eh aa
-cabemrclkts igemgbobs: vc questdead ete doar
Sts. ah i o Yi Rete
Sage OOD gee is Sate Rae geen NS. ne
af Ro eS eee ah GS caer onde dete
goth det Bad Ot, atk og Se a, ae
ease winectee ton 6d Seine
ets Heke. me aand bey asl |
; fae: sae Yrowiaeamn 4 ee ey ee Cae ’
TNEAE o da Prost dene See Gat rei.
% : 2motts ude erode Ayosen te steeen esd ae ee eee
‘ hay
, , sarees Syney ape s 34 gy ;
ix SEDO Raa SE. ae he tlee
RCS eh Gs FCO, | URE a ee ee Se on OD EEE “ae
DUH TE bf 9: Bas ye ott sLecdedie. ey Peay a Se SA Behe Aa ata, apt Prose eae,
Se
TE OF ILLINOIS, cs
OND DISTRICT :
I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
id Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
ereby certify that the foregoing is a true copy, of the
4 aid Appellate Court in the above mae cause, of record in my office.
; In Testimony Whereof, I hereunto set my hand and affix the seal of
said ee, w at Ottawa, ae OS Ce of
J
in the year of our Lord one thousand
nine hundred and
late Court
*
ee
mg ;
AT a i aan THE sPELLATE COURT,
f Ff
j i i
un and hel
at Ot taw; on Tugsdayg the fifth day of
Metober, i
the yen of ours Lord cnethovesha asa hundred
pad cal Six wi fin and) for the. ‘cond District Of athe
° a
linois:
Present--The Hon. AUGUSTUS A. PARTLOW, Presiding Justice.
Hon. THOMAS M. JETT, Justice.
Hon. NORMAN L. JONES, Justice.
A goo L
ZL Vd Ne A i, | 4
JUSTUS L. JOHNSON, Clerk. 2 a= tele 6 Oo
x E. J. WELTER, Sheriff.
1d JLUe REMEMBERED , that afterwards, to-wit: On
MAR 7 ~ 1997
Merk s office of said Court, in the words and figures
the opinion of the Court was filed in the
following, to-wit:
October Term, 1926. 64
William H. Fiser,
appellee,
VSe i
Appeal from Cireuit Court
Chicago and North Western
4 of Winnebago County.
eilway Company, and -The
ity of Rockford,
appellants.
Partlow, P. J.
Appellee, William H. Fiser, recovered a judgment for $250 in
6 Circuit Court of Winnebago county sgainst appellants, Chicago
and North Western Railway Company and the city of Rockford, on
account of damages to an automobile, and an appeal hes been prose-
‘euted to this court.
Several grounds of reversal are urged but it will be neces-
8 y to consider but one of them. The evidence shows that the
é tomobile was damaged beyond repair. The only evidence offered
ak ee the question of damages was that it would cost
etween 4400 and $500 to repair the automobile; thst two undamaged
ires were worth 13.50 and that it wes worth $12.00 to remove __
automobile from the reilroad track to a gerage{/ Evidence was
ffered by appellants tending to show that, prior to the accident,
automobile was worth from $35 to $125. No evidence was offer-
2d as to the value of the automobile after the accident except as
tc the value of the two tires. ;
Where property has been injured by the negligence of another,
né the property can be repaired, the measure of damages is the
ost of restoring it to its former condition, provided the cost
of repair does not exceed the market value of the article before
; injury; but where the property has been destroyed and cannot
s nepatzen, the measure of damages is the difference between the
rket value before the injury and the ane of the wreckage.
-d8@L ,mxeT tedotoO —
reall .H me
,eelfeqqs —
8 gle
peedeow dotO bam ogee hel
edt bus ,ysaquod. bam
,Dbtetxzooi te *
-atnaslleqgs
. @xwed tisetlo mort Iseqqa
-Yinwed ogsdenniv to
sb oI ,wol:
at O@s? rot tnomybet cs borevooet ,teatt .A metILiW ,eelLeqqa
; @gsotdd atueliegze ganiegs ytoroo ossdenntW¥ te grv00 timortd
a mo ,fxetsxoof to ytlo edt bas yasqmod yewlish atetagW dirow
a es ~se0Ty seed asd Iseqqs ne base ,eolidometss me oF eegsamab to tro 001
~trsoo aidft of bode
~eooon ed [Ifw vi tud bogus ots [setevert to ahawotg “Estever
edt Jedi awoda esnebive ed? emedd te eno dud Tebianeo oF
botetto eenxebhbive yine odAT .tisqet baoved hexsmsb a & dome
geeo bilyow ti tedt eew aonsmsh to notteaemsp edt 20 amr
begsmsine owt tad? z;eltdomotus edt tieqex ot O08 bus oon noewd
evomer o¢ OO.85% dtrow asw +i ted¢ Bae O@. 8i% dérow erew gerk
4
J
-esw somebivi \essts,; s ot dosit bsorlitex edt mort eltdomosus |
,taebtoos edt o¢ roivq ,tesdt wode ot gutbmet ataeliloqqs yd berett ;
emote asw eonebive cH .a81% ot 3&2 mort ddrow ew eLidomotss
. 88 tqsoxe tuehioos edt tetts elidemoetus edt to exTay edt o¢ as
‘ s2exit ows edt to eniay edt | i
| ,xedtone to eonegtigen edd yd berwtat need ead ytreqora eredW e j
edt st esgsmsh ko sryasem edt ,berisqer sd nso ytreqotq edt :
taoo edt hebitvetq ,moitibaes remrot att ot tt antzodzer to.
eft meewted somerettib odd at segsmeh te etvaseom off sboxt
-egetoetw edt to esisy odt bus yistat edt ototed onley
be \
leDonnel1 v. Lake Erie and Western Railroad, 208 Ill. App. 442;
tathan ve Cleveland, Cincinnati, Chicago and St. Louis Railroad
ompeny, 164 Ill. App. 559; Crossen ve Chicago and Joliet Eleétric
Railroed, 158 Ill. App. 42. \
There is no competent evidence in this record on behalf of |
ppellee to eustein the judement. There is some evidence i: ee
4 d f ' \
elf of appeiients, but the a of the ges is so in excess
£ the emount of the that we are not justified in affirm
ae : \
the case.
The judgment will be reversed and the cause remanded.
Reversed and Remanded.
os
ha
i\ ;
\
es
:
A!
BX
ef \
y AEN
Pk}
bs
ae
Is
I
IN
% s
= mee ered
.bebuamet sauce eit fue beatover ed tiie
ee ek Serena iert # beweveoet reat make lee (88 Neaes
sbebnemeg bas beetovell :
strs Liang Sei lege ysis. ogadeRRE Re tawed 3 ktotes
. eas Tins, yc yael eae wretiaW trot
antic ga oF pepened ‘Te. es
juve wate ‘et
sy tO eho koxewse
ake tid Neb tangy: ot §
Reed lade” etal :
yc) sauinidasis ot ze
roftdemesne 34 taqen ot 008k base
dither oa
‘ ay ¢ COUGHS * Lonatay
7% +
ea 33 ve cost iey Bale
5 we. SO Oe
e
@
: heres Ray orden peed: weasel ute cong ‘eas ako aad
| konmied sonsreth Eb Sai ae Br oe.
ATE OF ILLINOIS, bs
SE COND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second District of the State of Ulinois, and the keeper of the Records and Seal thereof,
ereby certify that the foregoing is a true copy of the
@ said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of
said ae, Court, at Ottawa, this day of
in the year of our Lord one thousand
Sine yey sohbet nee ee cerned tbat malice arti ee
-
Rote ise eer eae
Hi gol) stallageA alt to hat): MOREL iY Ve
Jostait: [988 bas’ ebtoogé att Ye ragsou ody nn ail Yo pate
"
ee
;
‘
©
AT TBR OF TH a COURT ,
:
and held at es oF Tuesday, the fifth day of
Bicper, in the.yeay of our Lord one thousand nine hundred
and twenty-six, within and for the Second District of the
State of Illinois:
sent --The Hon. AUGUSTUS A. PARTLOW, Presiding msec.
Hon. THOMAS M. JETT, Justice.
Hon. NORMAN L. JONES, Justice.
JUSTUS L. JOHNSON, Clerk. A 7 Bh
of are Zi. ir 6.
fH. J. WHEE. Sheri ft.
a)
nO)
t
i BE IT REMEMBERED, that afterwards, to-wit: On
MAR 17 1927
the opinion of the Court was filed in the
slerk’s office of said Court, in the words and figures
following, to-wit:
4 e
ea ; *< eo ee 4 "
Fay ees iy ry ny X32 ae Ory rie ae Ap
as res i r 2 ‘ 5 a3 ey
Ln Ls a . ne n\ ' =H ' i sone “aaah ie
. t en aie
An ne
mm ; re
‘i { { a
”
Agenda 17
APRIL TERM 1926.
a£ SLOAN, ADMINISTRATOR ;
j ESTATE oF HOMER SLOAN,
APPELLEE
: APPEAL FROM THE CIRCUIT
vs. COURT OF TROQUOTS COUNTY.
AGO AND BASTERN ILLINOIS
AY COMPANY, A CORPORATION, :
APPELLANT.
This suit wes prought in the Circuit Court of Iroquois
by by Samuel J. Sloan, Administrator of the estate of Homer
2, Sesacca, Appellee, against the Chicago and Wastern Tllinoigs
ray Company, Appellant, to recover damages on account of the
1 of said Homer Sloan, deceased, which was occasioned on the
enth day of March, 1924, at a Tailway crossing in the Village
£ d, in the seid county of Iroquois.
It appears that Milford is a village of spout fifteen
people. The main business street if Jones Street and runs
‘ana west and is crossed by the trecks of appellant running
ly due north and south. Three tracks of said company cross
‘Street. The deceased was driving east on Jones Street a few
es after midnight and in attempting to cross the tracks of the
lant company on said street, the sutomobile in which he was
g and @ moving train of ears of appellant, collided snd re-
| in the death of the plaintiff's intestote.
A jury trial was had, finding in favor of appellee in the.
$2800. 00, on Which e judgment was rendered and this appeal
ant followed.
“he declaration consists of five counts. The first
eral negligence; the second charges the violation of the
ace of the Village of Wilford; the third that no bell
YI shmesa
OSL MATE
Balt eed
; WELIEITA - an
TIVORIO FHT MOHT TAGITA (yh Rage =
-YTHUCD IOUSORI TO TAUOD
erlourdit nesegan ra
(HOTTAMOTHOO A ,YHAIMOOD
TH BLIELA
edd no Benctassoo saw dotdw ,feasooed eo Le semi biea |
egalliv edd ni gutaaoto yswiist « Ja easel sHoxsil 7 to vad
anur bas teottg eonot ti testda eeentend atem ont " sofaoeg i
an iow cap teat to edostd oft yd besaoto ai bre taow |
ggoro yusqmeo ‘bisa to edoart eoxd? .déwoa bus ddron enh y
wet s teerte aenct ne tase gnivith asw npampicesec st rom
aaw ect pare irk ettuomieen edt a Biee ao
-et bas bebitIIoo ,tusllLeqqs to ateo To ntaxd gatvou
geri? oT sadeurco evit ‘to onstam notte:
edt to nottsloty edd Segzade booed ot
Pup iates:
p whistle was rung or sounded as required by the statute; the
arth that the crossing was in a populous part of the village and
m the main street and that the train was driven across the crossing
an unreasonably dangerous rate of speed; the fifth that the
rain was speeding over the crossing at a highly dangerous end unsafe
rate of speed, and that the crossing which was in the center of the
r age and used both day and night by travellers and because of
mildings, obstructions and other structures, the erossing was an
musually dangerous one.
To the declaration the appellant plesded the general issue.
q
number of errors are assigned by the appellant for a reversal of
1 judgment. Two assigned errors are argued. The first is that
@ plaintiff's intestate was not in the exercise of due care and
7 ion at the time of and immediately prior to the collision that
be ted in his death. The second is that the court erred in the
nitting of certain testimony that was offered on the part of the
ellee, namely, the speed ordinance of the Village of Milford. In
w of the conclusion that we have reached, it will be unnecessary
discuss any error or errors assigned other than the one relative
‘the admitting of the speed ordinance.
In the trial of the case the following sections of a
tein ordinance of the Village of Milford was introduced over the
ection of the a »pellant. The ordinance admitted reads as follows;
| "RAILROADS
"Sec. 1--SPEED LIMIT--PASSENGER TRAINS--It shall be
unlawful for any reilroad company, railroad engineer,
_ conductor, or other person to run or Operate any loco-
motive, or train of passenger cars, upon or along any
reilroad track, side track, or switch, within the corp-
_ orate limits of the Village of Milford, at © greater
_ Yate of speed than ten miles an hour.
"Sec. 5--PENALTY--Any reilroad company or railroad
corporation who shall, of themselves, or by their agents
or employees, violate or fail to observe either of the fore-
_ g0ing sections of this chapter, or any railroad engineer,
_ ¢onductor, agent, or other employee of any such railroad
_ e€Ompany, or corporation, who shall violate or fail to
_ Observe either of the foregoing provisions of this chapter
‘Shall be subject to a fine of not less than fen Dollars,
_ mor more than Two Hundred Dollars, for esch offense."
ae
ios
ie kaaesyex 8 tot tuslleqqs odd yd bongtaes ets etorTe oe
tedt ai tarit oat whee ete ero] Prien owt -dnomabot
ayn 3 o) He apes ( '
bas Sts0 out to egiotexe eit nt ton saw ‘edoteotat s‘ititaisla
he BSE
todd ae ie EE too ‘add of roitg ttetatbonmt baa to “ont art nop
a: ri borts ttu0e ed? tais ef baopee eft’. “sitaes ‘eta “at 5 oo i
ne
ett to aaq eit wo bexetto asw “jedt quontteot ‘isttus "to" aattti
BOLE 7 Sa ae oot
al - .bEOR LEN =o ensiiiv alt to. ponantbro ‘beoge edt ‘(iemessa fe
“ytsagooonmy ‘ed [ftw th bertoso vad ow toad ‘ Stentenbs ais $8"
yet Oe Siss ett ook molt
c eeitales eno et nad tonto: ‘bengteas « atorrs lee Torre yas aa
“seonsuiiro beoae ‘edd +o eee es ou
et 3 “to ‘ane ittoes gatwoLtoy ‘edd enzo edd to isint aad Ee "
edt 870. ‘beoubordnt aaw prot lim ‘to ogsiliy ‘edd gee ea re
ewoltos as abaer betdinbs eonentoro oft oe Bt
‘@CAORITAR™
“git ‘ffete ‘dT--8UT ag? aeOuRee A ——PINEL ‘qmadeset
_ stesniges ,bgetliest.,yssqnoo-bseylisx yaectet Le
-oooL Yus etsteqe to met ot nogsreq tento ro ,Toto
Yasognels "Te mogu. ,agao tegnegasg Ttoxvgiers x0) yevidos.
pe eit otdtiw ,dotiwe to ,fosrt ebie ,tostd bsoxlisr
totsets s vs. sbroL LIM: ‘Te: eggLLty: ond, tovatimals
“lag “tort a8 noite wel asit beege to e
a 7. te?) 93 Ly EBLE ee
Saecttee ‘ro qusqnos saactios YHA+-¥DIAMIL-~€ ‘aoa
Te atnege tuledi yd to. ,eevlegaed?d to: .ilsde/odw nokist !
--etet edd to redtie evroade ot List to etslotv ,seeyotqme
,teentgne bsorlist yas te ,tetqedo aidt to akottads ’ ifog
Beott[iat dose yas to esyolgms tedto to ,tnegs ,tot
of £ieteoro etsfotvoTiete arepaticonen ay
tstqedo aidt to anoletvotq gniogetot edd te ter
sayatel hog. ‘not inedt eseL ton hocentt ss loted:
i nr pEaetto aaee tot ,atelfod bins 7
45
Pen
tidy sae brakes ates Ag sith 43 4 if ed rf sab Eh
—_
s It is the contention of appellant that since the sdoption
the Public Utilities Act, now known as the Commerce Act, cities
na villages organized under the City and Village Act have no power
regulate or enforce an ordinance regulating its speed of trains
beach a municipality.
a In City of Witt vs. Cleveland, Cincinnati, Chicago &
;. Louis Railway Co., an opinion was filed by the Supreme Court on
he 16th day of February, 1927 which determines the question raised b
ah.
(the admission of the ordinance complained of by the eppellant.
%
In its decision, the court among other things said: "APRIL 5, 1924
s city of Witt, a municipal corporation brought suit against appel-
nt in a justice court for violation of an ordinance of the city of
p reeulating is, dena of passenger and freight trains running
rough the city. The- defendant was found guilty in the justice
“t and an appeal taken to the circuit court of Montgomery county.
| Case wes there tried without a jury, and the defendant was
guilty and judgment entered for $50. and costs.of suit, end
a
oe
case is now before this court on appeal from that judgment.
The ordinance under which this suit was instituted pro-
ts any railroad company to run, or cause or permit to be run
hin the limits off the city, any passenger train at a greater
} of speed then ten miles per hour, or any freight train, or
En
omotive engine not attached to a passenger train, at a greater
e of speed than five miles per hour, and provides a penalty for
violation of the ordinance. Defendant objected to the admission
the ordinance in evidence off the grounds that it is unreasonable
its terns, contrary to the commerce provision of the constitution
he United States, contrary to and in violetion of the constitution
linois, and that since the enactment and passage of the Public
ities Act of this State cities and villages are without power to
dinances regulating the speed of interstate or intrastate trains.
b's Objections were overruled and the ordinance was admitted
ce. Defendant excepted, and has assigned error on the
ae Se Piao: 8h: sem ane ost ht
gotsqohs, edt. somte tadt, soutsaess ea) mice Pheddy af
», eeitto, ,Jo4 eotemmod eds as Rone won ,toa goltilisy, ai
tewog en evant tov egell ty, bas gd iO, adt,:
Be, iG SER a ai pg NORE wl ae
pli ee SB
» 8, ogseidd., ptteaatonio,. Aeptexet way ddtit, 2 e849, A 5 an
d beatst nottaenp odd sentmreteb dotdw YSel See
eis ptneLlegas, edd yd te benisiqnos gonsatbhxo. odd. Pink? OR ane: ®
ASeL,& fIAiA", sbisa agatdd, redte guoma duimoo. oid, yo datonb. 8
-leqgs tantegs tive tdysoid. soitatogros, Lego tow & ott 20, utd
to ydio edt,to eonsnibxo, xe, to wotieloty tot, dxu09, epee fall
aoloost ante. sinc a hrs, TERMS: ta. ;
, soisant. edd at xalivs: Samet aaw snstoodes end, i suite, ons
"inseo yremogtaey. to ¢aveo Jisorto. edd ot no HAL AOE: oy . at
Saw tuaineled edt bas ,ytol 6; tuockdt tw. ie ae dt aa ae :
bns,,disa, tosetaoo bus, .08%. t0%, botedne soemgbul, bus iL
soe, edpengbnt ¢add. mort. Leeqgs x0, tis09- alt, axoted | moat at oee
~orq hbotutifent asw tive add todd, xe ber soren thro. PD a
“ure ed ot dinreg "0 savso,s0 oT oF tenance, Saoat ier ae Ps
xotserg 6. te aitard, tegmorasg yas. ,yvho odd toa tim td
xo, ,niett tdgiext yas, 16, twod, weq aelin god. ned ‘ooga,2 ,
ietibes a ts ,nietd tegneaasq s ot. hedostis ton ontgae 5 ark
“go. txv0D. emetque add qd. bellt. sew, mointgo
eldenoass ts ak i ee ehavorg oases |
28 EBS aie rel; 5 hes noone P oibies 2
nolistitenos ‘eid $0. Fete Tae PITOMNIOD, oad i ne
s + me
senierd, stent eo ‘atsnosnt ae i
0. adt Ef bao fe Leszena,
tf
8 |
a
é
Hn
—£F
-
gs
HH
it
a
Catt ' " — —
ne FANE
While prbor to January 1, 1914, cities in this State
i power to pass ordinances regulating the speed of trains while
lic Utilities Commission, and by "An act concerning public
utilities," approved June 29, 1921 in force July 1, 1921, (Laws of
121, p» 702,) created the Commerce Commission and vested it with
eneral supervision of ell public utilities, including the power,
generel or special orders, rules or regulations, or otherwise,
a quire every public utility to maintain and operate its plant,
ripment or other property in such manner as to promote and safe-
ra the health and safety of its employees, passengers, customers
the public, and to this end to require the perfommance of any
which the health or safety of its employees, passengers, customers
the public may demand, (Laws of 1921, sec. 57, p. 733.) By this
; the General Assembly, in its discretion, withdrew from cities and
lages the power theretofore exercised by them with ref¥erence to
) speed and operation of railwey trains and such power is now vested
the Commerce Commission, another agency of the government. Village
Atwood ve. Cincinnatti, Indianapolis and Western Railroad Co., 316
\ 425; Northern Trust Co. v. Chicago Reilways Co. 318 id. 402.
? On April 5, 1924, when this suit was brought, the city of
t had@ no power to enact or enforce the ordinance in question.
adm ssion in evidence was therefore error."
In view of the hotding in City of Witt against the
eland, Cincinatti, Chicago and St. Louis Railway Co., we are of
opinion that the court erred in the admitting of the ordinance
he ‘said Village of Milford and the judgment of the Circuit Court
eauois County will be reversed and the cause remanded.
eS
ei: = -
=
Reversed and Remanded.
*
vem) ote
all
Saar
iy
a
a
tp RAT
cnr p aee
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Nes 9 LTS
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SO desccg Lee Beet Tis D Aisa sabee yt be @
aicekiee at: eonantore ak ve
cy flac 4 B54 SEt
otage abdt nt ‘Bettie “prer x racket ot rola elite
a 7s
oxic extant ‘to beese: one gatie lager eoonanibt0 stag )
: Lee ee yy Pe ae
“ensensq odd ye vidmebek fetened oat saeitio dove dguordd :
ape ach s 3
a MSE, Re Phe é
~® eaettiiity oildag to netisinyer edt 20% obkvorg ot Joa nA
: + vy ro ee Me
ent betaers “Arer f (rest ert ot rer’ 108 sap -
‘Eideg puleteoaoo dos. nA" uw 'na wo zea tne) ‘aeReELEeY ol
Bina & K a AP ieee as
to aved) Iser if iat ‘soto? ai Fser es eure bovorgus * aed:
beak AG ge =
‘itiw a besuey sae notaatmmed e9t9:c100 ‘oat ‘Suteote Cs
+
yaetrog edt gatbutonk eeltiiies olling tie to cata io
“ eatwredto xe venoiteinyor <0 ‘eolor | .2t@b10 S dives ae te a
Ynate att atateco ‘bre nistoten ot wittts oktéaq es ‘tee
~etse fra etomors of an teanen Home. tet vtreqorg “eddu To #non
atemotale ,ategmeaaad - aseyelans ati to ‘qotee ‘bus “aiteen edd a
baie pi :
“gna to” ponemme req edt ‘otkapor ot ‘bare anit oe bas otidug aia
eels Bree ain
evonoters — -otosnseaag sbeovolakb att ise Yiekes 26 “ad ieed ott ‘do tat
atds ye’ ces «aq (Wa .osu “tser to awed) ~baaie® wa jo tday 9 H
Ome
Boe seitio mort worbidd iw wolteroatb att ab "vlemewad farened edd
ot ‘gonetetss at iw moat Pt. pan foxes’ orotederoit sowog ‘oi? aoge
DOee Soe Wee ae
Botgev wen at rowog dove ‘Bas ‘autotd ‘Yewtior ‘Ye “no idaxege bas heeds
heudyl wea. ee
egslliv ‘treme ve3 ead to ‘yousgs tedden a0 fae tamed sorommed en
at. cold “aie aa
dle fon baotlist nradasi bas #ifoqenatsnt \2t9anntouto v
ovisea
2803 .Br ele 16D ayanites ogaotsto vr +00 jeut? ‘wreddrom om 76Sa
pas ii ‘raed oh ‘oeys te
‘te b et? sett Ydtgsord aew thee akde ned bser x If Engé a0
EEG. out he. iietebe
-A0 1Pasup nt poniantheo eo eoxetas ‘so toans. of Towog on bad
A SOAS eee Ga eiase “sow Sonobtve at ee et
es eS ? 3 ia see an
‘edt naceinbvag tein To Boatnd salsiod | aad tid hesid ar
“eonantbre orig £2) ) antsdtnbe ‘ea = be ents —
ie 5 page 0h see
ps
EB aS Cpa. D Cee re tanked .
OF ILLINOIS, }..
ECOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
ind for said: Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
ereby certify that the foregoing is a true copy af the
a “ Cama SAN
€ said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of
said yaw Court, at ye this day of
n the year of our Lord one thousand
nine hundred and
ag |
f the Appellate Court
SHOE
inf ate) BE ur he onetd a he pti
a
2 vis Ay.§ Pant,
ate ans Seiad Lins ¥
ET ne Peaticy oF 2 va
watt: t98 onnoited i lon ri fh
\
Bi pina BN Mg
BR STI EOI REI A aaa AA Ee,
di ana) 5 naa it
ti
{
;
&
AT A TERM OF THE
ELLATE COURT,
mun and held at Ot awa, on Tuesda
i
Oetober, in e ye
,
ietheofieth day. of
}
of our Lord © thousand nine hundred
and twenty-six, witha and Xen they Second District of the
State of t1Mnol
ad
Hons“ THOMAS M. JETT, Justice.
Hon. NORMAN L. JONES, Justice.
CHUSHAUSi miley. JOHNSON, Clerk.
2441
WGA dig MPEIIMNS -Saveh ert icc
A me -|
e A ® O ) 6
BE IT REMEMBERED, that afterwards, to-wit: On
MAR 17 1997 the opinion of the Court was filed in the
Slerk’s office of said Court, in the words and figures
following, to-wit:
fe "$)
wig
hanry
mika ie eh
Ue =
‘PEOPLE OF TER state
ILLINOIS,
Defendant in Error
,
Error to the County
vs.
4 Court of Lake County.
NEY PETLICK and JANE DOE
jerwise known as MRS.
NEY PETLICK,
Plaintiff in Error.
The states attorney of Lake County filed an information
i ‘the County Court of said county, charging Barney Petlick and Jane
| Biitbernioe known as Mrs. Barney Petlick, with a violation of the
mois Prohibition Act. The information cénsists of two counts.
first charges the unlawful possession and the second the unlawful
; of intoxicating liquor. A jury trial was had ana Barney Petlick
“found not guilty. As to Mrs. Petlick the jury returned the
ug verdict: "We the jury find the defendant Mrs. Barney Pet-
7 guilty in manner and form as charged in the information and re-
en 4
that the court show extreme leniency in passing sentence."
Motions for a new trial and in arrest of dudmniiat were
and denied. Before judgment was rendered on the verdict the
os attorney entered a nolle of the second count. The court
iced Mrs. Barney Fetlick, plaintiff in error, to sixty days in
Sounty jail and it is from this judgment that the plaintiff in
P prosecutes this writ of error.
|
The testimony on the part of the prosecution is to the
t that two officers went with a search warrent to search the pre-
| of pleintiff in error and her husband. The evidence discloses
28 they approached the premises and entered the yard the plsintiff
ro:
ran into a corn field and was pursued by the officers and in
OSssession was found a bottle that coutained intoxicating liquor.
ey
ence further shows that the officers found a bottle of moon~
ae
Whickey in the corn field into which plaintiff in error ran;
€ home of plaintiff in error 9 glass was found which smelled :
¢ rn ee os : ~ 4
VASE SS ad i a nT
‘Ytarod edd of Trott
-gsnwod saat to srs00
ay
Fm ; .
“esta to moftefotv s dtiw ,dotitel yentsd .atM es nworml { oats .
satagoo ows to atetenéo motismrotat edt wtoa nottiabsort ate
ei
. eat bhentutet yrot edt dolified .arW of aA outhin pee
_ ated yeorrs@ .atM tusiseteb edt Batt yxs~ edt ew" torte gate
—et bas noitsmrotat edt nt begtsdo a8 mito bis Tents ak hia
jain edt .tmyoo buooea edt to eifonr 8 Seteiae :
-otg edt dotsee o¢ tnatrtew dorsse 3 ad iw taew areoitte + alae
eeecloath eonsbive edf .baadesd ted bas roTTS af iis tel
Ze
ngly of moonshine whiskey; that several men were sitting under
ree on the premises who had been drinking from a pitcher which
d like beer and several glasses and bottles were there with foam
them; that in the opinion of the witness the pitcher hed contained
r or home brew.
It is the contention of plaintiff in error that the bottle
prosecution claimed they found in her possession after they had
ed her into the corn fiela Was medicine She had been tal king for
ness; that the bottle contained a substance given to her by her
:. brought it to the home of plaintiff in error and that she was
g it as medicine and for no other puppose. She denied knowing
f
ALLE
f about the moonshine liquor the officer claimed to have found
he field. Plaintiff in error insists the men sitting under the
‘drinking from a pitcher were strangers; that they hed merely stopped
‘the shade tree in front of the house and borrowed a pitcher and
BLaSSese
A number of reasons are assigned for a reversal of the
ent but in view of the conclusion we have reached it will be
lary to discuss but one. On the trial of the ease the court in-
the jury on the part of the People as follows: "The court
cts the jury in the language of the statute that after the going
ect of this Act, the possession of liquors by any person not
y permitted under this Act to possess liquor shall be prima facie
se that such liquor is kept for the purpose of being sold,
ed, exchanged, given away, furnished, or otherwise disposed of in
on of the provisions of this Act. It shall not be unlawful to
. rivat
Bere in one's aiWelling only, provided such liquors were law-~
equired and are for use only for the personal consumption of the
thereot and his family residing in such dwelling and of his bona
sats When entertained by him therein; a burden of proof shall be
? possessor in any action concerning the same to prove that such
was lawfully acquired, possessed and used." It-is the contention
in error that it wes error for the court to give this
doidw tedediq es mott gnidatth -meed bad oul baste tesa eat a
msot dtiw stedd etew GES KOE bas. e noaae ty tha tiated pues
Pas | | ES BERG satexd om
eittod edd tedd voure ot tidateta 6, sottuagltlh ott Bt
bet vert setts molensgacq tod ot bao’. yoat bemtete ao tas
tot gotuet seed bad ede ontoiben agw blelt mroo: edd odmt- ted
_ wed yd ted et mevixs ueuahueee 8 bentatneo elttod: edt tedd ,
acew eda add bas torre nt Hittntete to emoe out OF aE” :
: “gelwenx beineh ede senoqaiy ‘tedto On tot ‘bua’ entotherm ea
Buwok oved ot bonis ro Teo Tho oat tompte’ dct ddicom Sas Ssbeae ,
but rebnur pattsta nem edd avatent toxre or “str tobe: gy
boqgora “lorem ban ved isdt iaregnerte “exow yertosry b 8 mex ‘Sri
“bas. wreddodia | 5 Meloied bas sawed ond te short int “poxt’
ot ale = oe a
0 Re Me ip: 2 Pa Me tine » Vie A a Hie
rela & PEARL gh Bete Dee ai. ara ay bi
antes ant xotte fartd ‘eiatate ott Yo ‘egeuanet ipso ante |
ton ‘eared une ¢d arompit te nOtweeaaog edt “Fou you whe Se
efoat onbeg ‘od [Lacie ‘roupit aneaneg ot tod did? tobi’ be
, ay aa sited’ +o eaoqaniry “pitt 20% taem | ai ‘opt oi
nt to boaoqalib eaiwredto ‘to boda tnrst “Xsue ) rovig “Sb 3 .
ot fytwa ten ‘ed ton Efede #1 - ek sind Yo “a anctelvery ‘edt to
‘wal etow eromptt dove: bebivotq. “wine “gn BPSwip done ‘nd Speelipte
odd to no ttgnvance Iencetey ‘eit tot Ylno' oar “xot ers + pas 1 port
: “axod eid to baw gaittow’ ‘douns ‘at ‘galbiaer ies ain one C
od iisde tors Xo nestund 8 “utetedt tit ‘Gd bea ite: tite dtd Sel
“nd Housel
noidaetnoo edt at- #1 : "bea ‘bee ‘boeasesog , bextip BE v1
; HO £1 hoe ok De Ete gg eat
Bhs eld “ovis ot ‘peoak <i is tot xoxre - BBW tt fade eee :
Sec cane Motiw. hoo} ee weet a 4G ere ee Kiet. 5 i a
BE
fore ‘fautd overd “od emee ae satin ied, ‘poftos
Se
ruction. It will be observed that the instruction is in the
age of section 40 of the Prohibition Act and it is claimed by
fendant in error that a similar instruction Was approved in People vs
4 $05 Ill. 593. In that case an instruction quite similar to this
Bsas under consideration in connection with Section 40 of the Pro-
bition Act, and it Was there held that the provisions of Seetion 40
? constitutional, and were within the power of the legislature to
. but it was not held that the siving of an instruction of this kind
8 proper under all circumstances. In the later case of People vs.
te, $16 Ill. 52, this question was again before the court. The
struction in that case was, that the possession of intozicating liquor
ins one is prima facie evidence that such person keeps and possesses
a liquor for the purpose of bartering end selling the same. The
guage of these instructions is not identicsl. ‘The instruction now
op
‘
ore us is that the possession of liquors by any person not legally
mitted under the law to possess liquor shell be prima facie evidenee,
e while the instruction in the Tate case related to any person
Ssing intoxicating liquor, whether lawfully or otherwise. For
8 “reason it might be argued thet the Tate case is not authority
| holding that the instruction herein given is improper, but on
59 of that spisien the court held that when a defendant goes to
1 and introduces evidence disputing the facts cl narged against him,
is then a question whether the evidence establishes a case against
beyona & reasonable doubt, and where there is such a contest in the
ence, there should be no instructions given as to what constitutes
ime facie case. There was a contest in the case now before us as
he possession of intoxicating liquor in violation of the law.
4 f in error went to trial upon that question, therefore there
i have been no instruction given in the lenguage of Section sal
@ Prohibition Act.
q In People vs. Elmer Mizer and others, No. 7538, filed in
“Court on May 29th, 1926, an instruction in the language of Section
| Prohibition Act was given and the judgment of the court was.
aldk o¢ Tellmta ettep noltouxtent ‘he easd: , get foe kine Sn LET a
“ord edt to Ob goitoe® dtiw mottoenaco at noltetobigne: gre :
Ohumoiteseg to anétatvorg edt jaar bLex eteds ao a2 ‘bre , +8h an
ot exrtsleiyel eit to tewoq edt siddiw exer bus’ ieee head pte ike
baits git te s¢tverstent ae to anivie edd tedtd biSsd°son' eaw gb te
tav afqeed fo ease tetel oft al seeenstemotls [ie reba regen
eff .dustoo edd Sroted Kisses ‘eaw notteenp etat ,8¢ ‘perre are
| rorpif gatvasimetni te fo fausaa og ett tadd ,4sW eaao°tsdd af no ites
Beaeseseoq Hus ages soatey dogg isdt éonebiva: etost sabeq af” 0%
es? omeq edt galtiise buna gnitetred to ‘sasqisg edt fot 0. f .
went nottouttant edt .feotinebt fon at anoltoutéant eaedt Yo ss i
“bread ten neere¢ Yas Yd arompki te “me tedseaod odd’ tect et: aus
,eenmebive stoat emixg ed [fade seopil seserog of wal edt nobaw ete.
nested (ae ef betalet eany ete off at notvddrdenk’ ‘odd oftae |
Tot (,datwradio xe YListwal ‘tedtedw ,reaptt: paitoolxodat satan
gd ttodias somet eats ete? édt dads beugta od taetm 2
no tud: ;toqorqut al nevig ntored noltourdant edt tedt sic.
ad ancy tasblien <b é aouw tute GIda Perce cals Settle’ ‘tant Ho "Ce
wid dantege begrads etoat si? gaiduqeth eonesive deowboxtat Bam
@aciaga ease s wsralidatas senehive ‘edd rodtedw aottadsp ‘s ‘went
edt of dastnos a dove ei oredt ovedw One jtdeeb sIdancese® a Bm «
aovudivexce ¢adw ct as mevig snottomrtant ‘on of pivode erent
aa ey Sreted won, vaso ont mF teotnoo # uaw bonnie wouns” bape:
- wal odd to nottefoty at xocptt pattaotxotat we at |
pred? svotexeds coideesp tedd noqr Latyd of’ ‘tu cinta fa
1 Ob moktoeg to egsrenel edd nt nevis nottouetant ‘on need ev:
we EH EE pee ston notard
at Heli 88a som ,exrodto bie A sav kocanedies
4.
reed because of the rule announced in the Tate Case.
In People vs. Levin, No. 7607 decided by this court on
ra, 1926, an instruction was given on the part of the People in
guage of Section 40 of the Prohibition Act. The judgment in
536 was reversed on account of the holding in the Tate case.
It was error, therefore, for the Court to give instruction
es this cause that is in the language of Section 40 of the
tbition Act. For this reason the judgment of the County Court of
oounty is reversed and the cause remanded.
E Reversed and Remanded.
4 2050 atin
ae ten08 ward
os iain woe wes i
Ey densi out stoi a ae tort
os erento mies
res eter 9 <5
waar ok eres wd*R48 :
RR eeioo 08 OTB duet Salted bh” Bae” bbaxever ad
son git nates ing Binamolt® iis" Beaten me p fade’ sae eae nae ad
Sid SAGan. CES se aE
oe eae sekieryad: Reo venta? ae fen
ifenignabe: Pay’ |
Se faut Bie — eae ae eS weeks ae
ease’ iva atwe® exten og £ Sh fee ef oapeave ae:
Betas hae Ge ae eee ‘aes i. tae notrssband a ——
Ce a eee iy he eR at
AOR eh Fee RE! A
(Re cee! tial
pon a A at ae
ge: EAE RSENS.
9 Hex we otedt etsia (Ane ude sb
oid nae onbare tan ieee Ket ee cian et oe Barca
2 Heel. Gall a Jeeta ae aoe oats
be me tretoiy aut ay oats
TATE OF ILLINOIS, }
BOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
aud tor said Second District of the State of Ilinois, and the keeper of the Records and Seal thereof,
hereby certify that the foregoing is a true copy of the
le said Appellate Court in the above ey cause, of record in my office.
ff In Testimony Whereof, I hereunto set my hand and affix the seal of
said Bys urt, at as, ay 7 ae of
in the year of our Lord one thousand
¢-—— CA Cz
piel,
Cae ee,
yk of the Appellate Court
Co
nine hundred and i) E
1ovaT
Ba WATS
mb Put ane
$:
if , } q
AT A TERM aa at COURT,
1 | rE
‘
% & j 2
SE | 7
i
On Tuesday, ithe ‘fifth day of
‘ ij
of ou Lord a thous
Begun and held at Ottaw
October, in the yea
j
f
and twenty-six, within a d for the econd District of the
a
State of Illinois: i ‘.
sent--The Hon. AUGUS A. PARTLOW, Presiding Justice.
Hon. THOMAS M. JETT, Justice.
Hon. NORMAN L. JONES, ee
tay Wa (aah Gea mea
JUSTUS L. JOHNSON, Clerk. fe “2 OF A’ G
—m— @L2 @ % Ly
E. J. WELTER, Sheriff.
BE IT REMEMBERED, that afterwards, to-wit: On
MAR 171927 the opinion of the Court was filed in the
Clerk’s office of said Court, in the words and figures
following, to-wit:
28.
Ps LYMAN, Administrator
the Estate of ROSB
MAN, Deceased,
Appellee,
Appeal from the County
Court of Peoria County.
PROPOLITAN LIFE INSURANCE
)
)
)
)
)
)
Vs. )
IPANY, Incorporated,
)
Appellant.
This is an appeal from a judgment rendered upon the
rdict of a jury in the suit of Ra Slyman, administrator of the
Ate of Rose Slyman, deceased, appellee, against Metropolitan Life
mrance Company, incorporated, appellant, for $467.02, upon a
licy of insurance issued by appellant upon the life of Rose Slyman.
The declaration consists of one special.count based upon
Ppolicy issued October 15th, 1923 by appellant. To the declaration
sllent pleaded the general issue, plea of tender by which $4.50,
tim paid upon said policy together with accrued costs was tendered
) court, and a special plea alleging incorrect, false and fraudulent
ners made by deceased to questions propounded to her as a basis for
issuance of the policy. It is alleged in said lest special plea
Sioned that appellent relied upon the information given by the
jasea in answer to the questions propounded and that it had no
isage until after the death of the deceased that the information
n Was incorrect, felse and fraudulent. To the special plea alleg-
that the questions set forth as having been incorrectly, falsely
ft udulently answered appellee replied that the answers made were
the deceased, Rose Slyman, but that the answers were supplied
ingly on her pert and without her consent, authority or direction;
ET
ca
She signed her name to the application without explanation as to
ni ers given and denies that she gave untruthful answers. Sub-
t1 by leave of the court additionel special pleas were filed by
lar at setting forth various conditions of the policy which are ag
ytasred edt mort [seqqé
“tdns0d sitoe{ to dxw0d | "
SOMARUGUT ware es
ashi eich
edt cogs berefaer toemgbyl s mort Ieeqqs we ak ohne °°
edit to rotarteainimbs ,osmyle@ bo to tive edt of cable ia ‘
etit astifoqorsel tantegs ,eelfeqqs ,boaseoeh (nam [8 encod. te
2 mogy ,80.%08$ rot ,¢molfeqqe ,hetstoqroomt ,ymeqmed ex
,memyle sao to stil edd moqw tuslleqqs yd beveat eonstwant to
mottsrsioebh. odd of stualleqqr yd 88@L ,dv@L tedoted bewaat yot
,0G.52 dotde yd reboot to eaefq ,evaat Isremeg edt bobselq tnalk
- gelq fstoega tasl bise mit boegelis at tI seokiog edt to sons
edt yd nevis aottsarrotat edt ooqs betfer tusileqqs tadt |
om bad ¢t tad¢ bos bobnueqotq emoltaemp edt of xewane ot
a.
motssmrotat edt ¢adt beassoeb edt to diseb edt totts tte
| geile selfq Istoeqs edt of .tnelubystt bas eelst ,toerroont
- -YLealst \yidoettoont meed gnived as dézot tea anckivesp edt #
- etew ebam etowans edt tedt betiqer eelleqqa betewans ylinels
_ atten etew ervewens edd tedt tod ,asmyle ont i
-du@ .etowans Intddwxdaw eveg eda tadd sehaia hee sorta é
86 3ts tn bie yolloq edt to anottibmoo auotzay ire
Re
lows: "If, (1) the Insured is not slive or is not in sound health
he date hereof; or if (2) before the date hereof, the Insured has
m refected for insurance by this or by any other company, order or
ssociation, or has, within two years before the date thereof, been
ended by & physician for any serious disease, or complaint, or
ore said date, has had any pulmonery disease, or chronic bronchitis
’
cancer, or disease of the heart, liver or kidneys, unless such re-
ion, medicel attention or previous disease is specifically inserted
Pine “space for Endorsements," on page 4 in a waiver signed by the
retary; ******ohen, in any such case, the Company ,may declare
i
8 policy void and the liability of the company in the case of any
h declaration or ‘in the case of any claim under this poliey, shall
Limitea to the return of premiums paid on the policy, except in the
sof fraud, in which case all premiums will be forfeited to the
: ve"
The nitions) special pleas then alleged that Rose Slyman on
date of the issuance and delivery of said policy was not in sound
th but thet she was suffering from, to-wit; disease§ of the lungs,
it: tuberculosis, and for a considerable time prior thereto had
| suffering from and was affected by, to-wit: diseases of the lungs,
it: tuberculosis, of which fact the defendant was not sdvised and
Y kmowledge. The additionsl special pleés also set up the fact
‘the deceased hed been within two years prior to the date of the
ance of the policy treated by various physiciens and surgeons and
mndergone a@ surgical operation which fact was not set forth in the
for endorsements and was unlknown to appellant.
| Appellee replied to the special pless denying the allegations
set forth and denying misrepresentations. :
The evidence giscloses that Rose Slyman was a Syrien; thet
Bi unskilled in reading and writing the Bnglish language; that she
not intelligently write her name and was uneducsted. The insurance
Led for by Rose Slyman on October &, 1923, and the policy
upon was issued to her on October 15th, 1923. All premiums
es a
xo ,tntsfqmon 10 ,easeatdS avotrea ‘eH cet sieianieoiess ned
t
‘potreant viisotttoeqe at eesesth avotverty to noitnetia Isotbem _ <! <
edt yd.bengie.tetiew.a-nt dD. egsq m0.", " gtaemeatohak. cot; songs”
— etefoeb.ysm, “aagmed odt,,2ac0 deme yuo at. eelernts "oh aca
o¥Ms ke -egso, edt af: Yasqnoo -ed? to. ak {Roane edd. bas- bhov--¥e ary
o sant eeos. tats. -Sea0lis tigi aneil a Eednecnenenetnite itt ae
ba 1 to. ytevifeb bas epasuaet acid to et
| ies edt. to. geasea tb. stiw-od ,motl guitetivse aay. ede. ants ted
‘ bed.oteredt yoitg emit, eldstoibiesoa,s.10t bas. ssteoLsoredut,
aguul edd to. aeascadh, :tiw-od. yd. Sesoetts asw bas.moert gat mm
bas, S5eaivis ton asw,)tasbeotes edt, tost.dotdw,to- sateolvoxec
- goat edt ax tea ogie eselg fatooge {saqliibbs edt... 9% st
edd Lev eteh.odt. od; t9itq, axeey owt, midtiw need. bod eee
bre. enoostua fas. esatoteydy, asotray,<¢d:, botaerds yous 7
odd at dixot, dee dom: aey, toast dotdy, Baiada: on )
¢ 8 _yeileg, edt), bas * aael, cae pneniten
emyimerq (fA «SSL ,dtat redoso0 ne su cr:
7
oe iia
hes
ie fully paid in accordance with the terms of the policy. Rose
a died February 20th, 1924 from tubercular meningitis. The
: Sary proofs were made on forms submitted by appellent, duly
cepted by it and payment refused. ‘The application and policy of
ns: ance constitute the contract of insurence between the parties.
It is the contention of appellant that in the fall of 1922,
e decessea had tubercular peritonitis and was treated from December
22 until Februery 1923 by Dr. Knapp. It is further contended that
@ was operated upon by Dr. Hanne, on December 20th, 1922; that the
Ration consisted of the opening of the abdomen and removal of a
ge amount of fluid and that tuberculosis of the bowels was found
| that it was necessary to provide drainage and she remained in the
pital until Jenuery 1923. It is further contended by the appellant
- the evidence shows that from February 1923 for a period of four or
; months the deceased was under the care of Dr. Cooper, who succeeded
mépp in treating her. It is also insisted thet Rose Slyman was
a doctors care in February 1924 for a period of thirteen days at
ena of which time she died from tubercular meningitis. Appellant
upon the fact that the application signed by Rose Slyman dis-
that she feiled to advise the appellant of the fact that she was
d upon by Dr. Hanns, or was treated by Dr. Cooper, and that it
foils to disclose the fact that she was in the hospital under the
? Dr. Cooper for four or five months during the year 1923. It
ids that the policy was issued within three months of the time the
ed had been ucder the care of Dr. Cooper and without giving the
mt information as to such treatment.
fhe record discloses that the application was taken by an
(of the appellant company by the name of Berry. It is feir to
e from what is disclosed by the reeord that the answers to the
ions were written by the agent Berry. After questioning the
eant, as shown in part "B" of the application Rose Slyman in res-
9 & question answered that she had had an "operation eight months
ps p@R0Ms eetheg odd fo gored odd ae bw sonvizoves wt Ategy¢Lf oe
(AT. «Gitigainen telyoredyt moxk ACCEL | dAt0S .yusweded beab F
Nish ,tasliegqs yd Settindue amzet so eben, exew 2toorg .Vte8
So yotlog bas nottsoiiqqs eft ,..heavter ,daemgeq. ohne att ada
-aeitreg edt meouted eonstsnal to dogtineo edt 16 ) nme
,¢@80L. to ffet edt ab tadi dtasileqgs to.
bare ta 68 ab thin: sh
tedmecel moult betgert aew.tng eitvinot ized - telvotedst bad beavers
_ healt bebsodaea todd cat, ek AE v aca o1@ 4d S3eL- vasssdel Litag
edt tedt.;SS@l ,dt0S redmooed ro onask : EGE, omnes het anage eg
e to Levemey has cemebde , eods..ko guimego. Rat 3 Sa
baet aan, pfewod . edt to etaoivetedsd tedd bas {biatt tot 2
edd at beqiswet oda fox eganiox obtverg of yrsaccooen eam dt dad
talloqqye edt yd foknetnoo seddtwt eb tL. ~SSOL aeraanal of kine, shed
To 180k to Fotzeq a. tot E8@h crasrdet mort tadt awoda sonebive eds
Bebocoowe od -zeqoe) .%@ to etso sid tebav asw heaseoob edt ld
, Raw seule ca0f tadt boteiank oalg ef 41. stedantteoss ak aan
te .ayed seqizids 20 hokteg 6.16% ASG gsaveder (Gt etse erotech
dualfoqgs sabtiguinen teluotedut moxt heiS ada emthuletde to ba
~ath aamyl2 egos yd beatae mottaciiqgs ed tadd fost edt moge @
aw ode tald dost odt to daslfoqqs edt .caivhs ot belieh ede dads im
+h stadt bas rodeo) 1M, edchetaewt 2am to aaNet ah ond ae
od? .tabos fettqaed edd, ab Aen ode teddy joe} edd qmelog be aed Ltot
TL. SSCL) teey odd gaitch adéoom evi 20 190% Tk TOgeOd »«Mt ; ;
edd emit edd to adtaom eatdd midd ty boveet.acw, yotiog edt si tots
edt goleig tecdtiw Sao toque) xl To atae ed) reehax mead bed B “*
(fio tocntaett doug et ac mobtamxotab :
ue id neisd sew mottsoliqgs dt todd eegofoath breoey oak
ot tat at tI ‘CITEE to oman edt ud nuaqmoo tusllogae:
edt oF axowans edt dait Saeqet eft yd beaotoe tb at tectw am
edt guimotégoup totta . .tted toga edt qd modsiqe tem,
-omeot at nemiLe cao wottaotlaas hapesbebslaséainashniit:
asid mom tig.te. Aobteteqo" me bed bet ede tadd ;
ifs: heed re xedoteo 2G eel BF Beer
ii ee
‘Vey i ae oes)
In answer to another question she replied, "I have not been under
e care of any physician within three years except", Dr. Knapp, Peoria,
linois, Lac Cervis 1-23."
In answer to a further question: "I have never been under
ont in any dispensary, hospital or asylum, nor been an inmate
any almshouse except 1 Month, 1-23
Rose Slymen, applicant, wes also examined personally by J. J.
alson, examining physician for the appellant company, and reported
er health and applicstion for insurance as follows: "This is to
rtity that upon the date last written I personally examined
dress given in part "A!
at the
hereof, the life proposed for insuranee and
i made the signature at the end of part 'C' and am of the opinion
t said life is in good hesith ana thet said life's constitution is
3 I find the pecuniary circumstances Satisfactory and the insur-
» applied for in 200d faith with the purpose of being continued.
lerefore recommend that this application be apeepted.
son.”
Signed J. J.
In view of the fact that the applicent was e foreigner un-
ted, either in her own language or in the English language
- Teasons above mentioned, namely:
and
(1) apprising the company of
eration eight mouths prece@ing the application for insurance; (2)
ag the company of her treatment by Dr. Knepp; (3) confinement
hospital in January 1923 for one month and (4) exeminstion ana
rt by the compeny's examining physician, a reasonable conclusion
lat the deceased truthfully, honestly and in good faith without
attempt to misrepresent or defraud, answered the questions on the
leetion to the best of her ability and understending. ‘The snswerg
1 and the examination by the physician were of such nature to cause
mpeny to reject the risk if it did not think well of the
v certainly knew
applicant
if the application was perused that ghe had had a
illness and thst having gone through an operation it must have
@ serious nature. The company having all of this information
2 it and then issuing the policy thereon should it now be heard to
es ge
rebos ceod tom -eved I% ~, Bet tqow ede noftgesp redtenn of towers wl.
.sitoel ,qdant .xd oj teeoxs: erse8y eo tit ofdtiw detoteyite yaw Yo
| OM 8Qel etvre6 wed
tobne necd yover ered I” qmottdaerp “elttut soot ‘cowens are o
otount: ig meed AOE © PROPOR 2 Leéehqeeat - mersanegaey spas: ob
7 eSak | kdl 2 eee: ‘oamesdamtn .
ot =G yd: YLiandeted feciausxe calle sew ,duBot Laya’s “msg @ wack am
Bettogqer Sie pyoeqmon Jaeelleqqs od sot tatotayuta gntntewme |
: en @Poeid?". rewollet se sonercant tot notdiest que: bee ema
edt da bertmaxs ylfLaroarsy I nettiww teek sted ond aegir Sands
bas -esnetvank tot beaoqorg STAC silt jYoored’ "A> freq nf mevEg ,
aiolatdo edd ke ma Sie 'O* d¢esg to Bre eds te onstangta ede oF
‘et noktetivanos eteREl base dads bes Atieed boog es ober 5.
ge ot? BoEY
, -Bovnisnoo anfed to esouniy: ‘end: a Fie at ist pag 20 co ae ‘s
-% wl DORRID “Betasegs ed xotteotfeqs iit +eit¢' Srommover ©
WO L: ES IES ch tee es ‘
ie temgtorct «2 culecanieibcen iat ‘Jedt Fort eit ko wety HT
$nsS sgzuugas! dailan® ent of xe egepgasl: nwo weil at wedsie
to ynsqaoy edd gnieitqge ({) sylemen sbenotsmem avode encase
(3) yeonerpant xot noitaohiqge edit enkbeoexg entiom tigate nete
otnemerttaos (8) 4qqgahe Lit yd tnemaert ved: te eBGMOD ot y
? us xoitsrimexe {d) bre Stnom eno? tot CReL graeme rae bf
‘netarionen s{dantaser es ,netoLeydd grinioasxe at yttsqme a! el .
s$uedtiw dtiek boom at Bae Yitasnod: MiintTt ‘vonaeved ‘eat.
eit no ancitesrp edt fetewass ~byevbeb: To dnbaerqeta te or ‘
atowans edt sanibnetetebns fos yhittis’ rest 20: teed: wilt ot ai0t
eauso O¢ exrhiten fovea to ere¥ natotaysg eit: xed. no tenting et
5e
lain?
F Rose Gyman died of an entirely different dise:se than that
which she was treated previously, hav¢éing died from tuberevlar
' tis. The disease she had in December 1922 was tubercular peri-
iis. The testimony shows that tubercular peritonitis is e differ-
Raease from tubercular meningitis except as to csuse. When she
in 1924 it was not from tubercular peritonitis eccording to the
imony of Dr. Knepp. It would appear therefore that the deceased
Rexpletely recovered from the previous illness and thet her death
saused by an entirely different disease and that the deceased was
ound health at the time of her applicetion for insurance.
. An insurer may by its conduct waive e condition of a policy of
‘insurence limiting its liability to a return of the premium received
. date of the policy the insured was not in good health.
: Where an insurance company issues a policy on the life of a
a and accepts the premium therefor after she had informed the
ny's examining physician that four months previously she had sub-
Md to an operetion and two months later it consented to and issued
ond policy on her life without any reference in her application ag
F condition of health, the insurer waived the condition of the |
7 thet its liability was limited to the return of the premiums re-
it the insured wes not in good health at the date of the policy
‘to prevent it asserting the defense to an ection on the second
y that the insured died of cancer of the uterus. Eagleton vs.
at al Life Insurance Co.j 193 Ill. App. 306.
| A warranty or representation as to the condition of health goes
) the extent of an honest end true statement of applicents belief/
Bite: Life Insurance Co., vs. Moravic, 116 Ill. App. 271.
The policy and application were prepared by the appellant
y on their legal form for use for such insurance as applied for
> Slyman and many questions are lengthy and are susceptible to
1d various answers, and for one unskilled the application was
iS
us and should be construed strictly ageinst the insurer in favor
“ aeisoredst | mort both 5 gathvast ee bes roe
Gas q ORES
iteg <8 sLuotedst aoe seer redmesom ae bed ede oageath |
Gee Becta pease $ ¢ 2 $s ak pe Po anes + cree
—ra2k lh 8 a alvtnod ineq selvoredst tadd —- 2 wnomtsaed
a y mig" Cue i ioe cE S a i ie
7 nedW “eee 2 of as dqoore eltigainen
bea jak . othe rg
Seged ot BAERTOROR ee ckcnchesaaet, 5 reluoredsd | ‘moxt ‘ton anu
Mer nope FP Popa r pet B
Beasoood odd Foatt oxoteredd ‘ssoqus bLsow aT
Ry i Fy cherir ys ey eek ae Hee Reig
eee rod ‘tod bas asenitt aso tverg odd mort pozevesss Vl
re! oie She" ver notine Sige bee
oem boasooes exit tad oma eascath Snozoth 20 vlertine as
pee Fangs vas: SoHE BS
voonetant zot notgsotigas rod to. emit oft te se
see ere ae vir ocee ny” Ye 8 Peon as
to yottoa 8 to mcb¢ Ebaeo 2 nog toubnoo ati yd yen sergeant
*
*
hovtooet awinerg ont to ausder | 8 od vtattgeee ati gatdimi
rane esa reel TERS Se GS f a3 ow a2 ei
+d? Laod Boog at shout aaw ‘berwact edt ‘<ekee edt
WR Se wagtey oe RENF OSS OR
a te “etil ont a0 yokfon 8 ) eewent yasqmoo eonstyant As
A NS Pre (eign hFEGY Race ae Mee
“edt poero? nt bo. ote xerto “xotor0ds mss bevoEG edd + adaee
i RAP SESBS 4 Re? Hae Rey eS
sa bat ode yievetrerq adtnom poi “gaiid mato keyg galntasxe,
tee sere b recehe: SEES Fee teey ye ae Le ca
8 tuodd bw pil boe seit i10
ic EP chat H i py ape ee paar tam Ft ae ait we yh se
“ott to “noitinnos: outs beviaw zoxwant od dit Led to mobi
“gremens hee fei eda! - Cree eee
-9t enntmetg edt te xvtox odd ot bed imht esw qtiitdsti att
ys f ate Sobtocex”, water tage? S
wetlog oilt bald oteb ods. $8 43 Teo boos mk ton raed betwen.
peveat bas o¢ picasa di tedsl addon ows bas moitersgo 28°
be Se
a 7) e 7 bh 5a ay vi
x e, i$ Bey i we
“ Breoes ont a0 nots0s ns ot ‘eareted ent guttzeaas ti daneve
mee Am enc Set GOO ererwel wie
vs Hee et 4
ay ‘note. em sevreda edt ‘to TeoRse to beib: Sergent odd
eek met ah pe ee eee eye
a 4808 ee SLIT 8eL y+ed. sorstsa
+ aes. AiVabe Apa es 2 4 Bete Pe r “4
Ss apie as i? AR eter Beak io tar MO ck +> oe ees Sar sha aS: ses ee
2908 ae laod ae noid tbnoo out od as notisineastges to.
Po, se
teenie te a
\renred etnsotiqaa to ‘guomedste omst bas vaonox 52 x0
CR aS Sea
iV ag IT ate “otyst0l ee
J ienbotogsh (eke wah wet eeneae
“$uafequs old ue bersgstg ezow notssotiqas bd yoltog é
fi PES Peete OR See ow ae
“aot bot tags as somutant sone 0% eas rok stot Isge
Be: pipe his ee sels ER ape
“ot otdtéaeoase ors bits yuligael ets anottaemp ig ae!
rick SEMOR Dt Woe Lhe eds ened: Su Pram Saag «
‘ase nottsotigas ould “boLiinens ene 0% bug ,@te
AD) fate ne BEE BY Ye See A } Se eae: ee i
‘t0v8 ne roman utd Aentens elteiste. cee
; f nopLedd ok fon* one.
Ge
a Smith vs. Bankers Life Ass'n. 123 Ill. App. 392.
In the sbsenee of proof by the company of fraud or inten-
bel misstatement on the part of the insured the policy was not rend-
WP ¥evalia merely becsuse the answers proved to be false. Wo repre-
tation is false in law unless it is made with actual knowledge of
‘felsity or under such circumstances that the law must necessarily
ate such knowledge to the party at the time when he makes it.
pier vs. N. Y. Life Insurance Co., 221 Ill. App. 420.
It is the contention of appellee that when Rose Slyman
yered the questions propounded to her by the agent Berry end eppel-
t's exemining physician J. J. Toalson thet by so answering, even though
—"
@nswers sre not as definite as they might be, they were so suffi-
ntly and honestly answered eas to apprise and inform the sppellant
ne @id have a serious disease or illness necessitating the
ation eight months preceeding the application for insurance. This
enough to put the appellant company on inquiry to ascertein further
fature of and result of the operation for the purpose of refecting
risk if they so desired. Agein when she stated that she hed not
| under the care of any physician for three years except Dr. Knapp
eoria, Illinois and in answer to the question if she had@ ever been
t treatment in any dispensary, hospital or asylum, or been an inmate
: almshouse or any other institution, and answering one month, was
cient to put the appellent on inquiry to ascertain the physical
ition of appellee for the purpose of rejecting the risk if it so
Appellant adduced no evidence to show that Rose Slymen was
L good health at the time of making the application on October 2,
‘There is nothing to indicate that her statements in response to
be .
Stions propounded to her were not made in good faith or that
ks”
vere other than honest and true statements off her belief.
It is also insisted by the appellont that it failed to endorse
| secretary in the space for endorsements on the policy as indi-
sy o the conditions heretofore set out _in this opinion. Failure to
rse on the policy by appellant and the acceptance of the appli-
“nett to fuart to. wnbqaio 9 ont ca foory +6 nee ‘
~bae' ton saw ‘yoliee ot betuant ond te “Ft0g ‘est ie The
-osqet on seaisk ed ‘ot havea preven edd e east: $ BELTS
to _sabebvont ey tw oben ‘ah sa agora wat’ AY oats ae:
2 vio ihe Whee
eirebaesoen “Sag ‘wal oat baad doountes r
ott asian act ost ‘ouit edd ‘ta. ‘qiteg edt of “bane yoo ie f
+082 aaah oEEE tae ae saponins i eckidbats
ot eS
buat os reve gatzowane | of a tedt nvalsot ea ,s ‘Eetoh ae z xe 8
ithe oa etow vend ved dda tar yedt ea “odtureeb & aa 8 don ets et we
‘tuelieqaa one état tae ‘ealiqgqs: ‘ot as ee ae onoit |
ott gaitadlaseoon “geontii x6 “paesets auofree Ss ot et
alt? soomermant ‘got ac btueltgue ot ‘gatbos eeete at aiitnen #1 ,
roddaut stadreoes of wrinont 0. quegaios “Guetieqgs see a tig’ oF nx |
ae isoayes to eacetuq ‘edt Tot nottsrede ead “Yo ftveod baw ee" %
“ten bad oda add boiste ode mende nisga “sbotiaet ea Xedt beh 24
‘qqank aie iqooxs aTR6y oom rok ustoteyda yaa to. erse oil’
Ustemest
need teve bad oda ti no tasup ‘odd od Towans nt ‘baa z.
es aie?
: efeunt as neod 0 ,awrlges re tattqaod “wraadegaly: qua EE fied 39"
ERG
Baw iddnom exe gutrewara ‘be nottudEvant tedvo {HS TO 22 IF
Ree ae:
Leoteyita 1 ont nteéueoke of ‘webrpad no ‘nel todas: aut 30 is
o2 4t ti dalix edt gultooten to. sacgirg eas <o% ry
ant seal seof tad wots ot senebive on ‘peoubba dna
e ‘xedo200 m9 no B8 80 Bc dill edd + gable tos ‘omit Bex i attest
steiied zodl . ‘pinosiedate ence’ “Soe. cp x6 begin: ve
oaxobre of boList “tt tad ‘gneLlodgs. ‘edt ‘yd ‘potata: é tiatin’ _
, -tbel a8 veitog ond no ‘etnemeatobas: rot a hehe out |
ot ersibel - snotatgo anne ‘ak ‘do toe” oxctodoxed
f Me he
Ses Stn rete yeh Bas
% -Eave err one eoiissqeoos: pred ‘bas B
or with the knowledge of her previous condition «as revealed in the
lication constituted a waiver on the part of the appellant precluding
a denying payment of the claim under the policy.
Complaint is made of the action of the court in modifying
Milant's given instruction no. 1, and in the giving of appellees
ruction No. 3. Instruction No. 3 given on the part of appellee re-
4 to the question of waiver by appellant of the provisions of the
ey: We are of the opinion that the court did not err in giving
| instruction. Modified instruction No. 1 complained of was more
rable to appellee than the rule woulda permit. We do not think
= is in any position to complain of the modifying of the instruc-
sause the position assumed by the appellant in seid instruction
et under the facts in the esse there could be no waiver at all.
We, conclude, therefore, that no reversible error was com-
@ in the trial of this cause and that the judgment of the county
of Peoria County should be affirmed.
Judgment affirmed.
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re Aaa L Nec ah aunts thane Sa 37 Mee ie ON
- edt st hotsevex Pa noistonoo auotveng rod ted
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oy “sorfeaas 3 to 2 Pay one ne nevis 8 Pos ‘nottouttent
edt to. emote ivory add ko sontteqis i rey niet * — bad
Sse a st
erom asw % ‘pentstgnog . _ oe, cetitis ate ret. EE
Pe es a
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cee Sse
ATE OF ILLINOIS, 1).
SECOND DISTRICT I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
er reby certify that the foregoing is a true copy of the
O—FAAAa D1
e said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix, the seal of
said Appellate Court, at Ottawa, fc Mane ctr of
ay 7 the year of our Lord one thousand
nine hundred and
e Appellate Court
ca
boninods 2 iortes AG Giiys) 49 nos aflt aM:
line hundred and twenty-seven,
ond District of the State of Illinois:
Hon. NORMAN L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice.
JUSTUS L. JOHNSON, Clerk.
: VDAAT A ABRG 3
FLOYD S. CLARK, Sheriff. Bd Avy A. 656
a
_ BE IT REMEMBERED, that afterwards, to-wit: On the Opinion of
3, 1927 the Court was filed in the Clerk's office of said
rt, in the words and figures following, to-wit:
CU etn Ue iat
2 SHR
140\
bie
i
Janis ange bene
ate
Sy ape
W. Foraker, Appellee
3 Appeal from Circuit Court
a ve of
I Will County
Slocum, Appellant
J;
James W. Foraker, appellee, brought suit in the cireuit
of Will County against P.H. Slocum, appellant to recover damages
mltine from a collision of two automobiles. A trial was had before
Ty resulting in a verdict and judgment for appellee in the sum of
The collision occured in Joliet. Eastern Avenue runs
oximately north and south and is intersected by Osgood Street which
| approximately east and west. Just prior to the accident appellant
ariving a Ford Coupe south on Eastern Avenue and was approaching its
section with Osgood Street. At the same time appellee was driving
sar cast on Osgood Street approaching the intersection from the west.
; collided and as a result appellee's car was thrown on its left
ith the front toward the west, about three feet east of the curb
of Bostern Avenue and a short distance south of the south line of
§ Street. Appellant's ear stood upright and facing south against
curb of Eastern Avenue about 50 feet south of the intersection.
\ It is urged that the verdict is ageinst the weight of the
iy
4)
mce and that the court gave three instructions on behalf of appellee
~
‘eontain reversible error.
s For 200 feet west of the intersection, Osgood Street has an
ne of about 7 feet toward the intersection. Appellee testified that
@ bottom of the grade his car was travelling less than 20 miles
ir and that when he reached the top of the grade at the west
a : line of Eastern Avenue, it was going less than 15 miles an hour;
8 he came along Osgood Street he looked first to his right end saw
? ling, then he looked to his left at the top of the grade and
ito the street intersection; that when he looked to the left
ant's car between 40 and 50 feet north of him on the right
gxr00 ¢ivoertod mort Lseqqa
to
ytasod I[Lfy
tivotio oat ni tise tdgsord intial ,roxustel .W eemst
aegemsh teveost of tnalfoqgs roo LB -H-¢ tants3s ytnsod Litw to?
eroted bad eaw Initt A .eelidomotus owt to motetffoo s mort 7
to mue odt nit oelleqqs rot tnemghst bas tothbrev s at bate cunaticl.
anur osnevA mtetasi .teifot ai betyooo soferifog edt
fo.teiw testteé poogad yd Befoostotat et base dives bus diiron wletes
i tasileq¢s— ¢esitooe edt ot teita ten& .tfaew bas tese vletemtxera
at gntitoeotage asw brs ornevA aotetasd mo dduoe aqsrod bro s -gatv
auivith eeaw selleqqe emtt emse edt tA .teetta Booged aid iw =
tefl ati mo mwordt saw wteo a'’selisqqs tineaet s ea bus BobLiLoo
duro edt to tese vest eetdt tuods ,teew edt brawot Tnoxrt edt x
to enti divoa edt to divoe sonsteib trode s bas syneva nrotaak
teantens dtyoe sntost bas tdgiray bootea teo9 a'inefloqqA toot
~toltosntetnt edt to dtsoe test O¢ tyods osmevA ntetasd to deuo
eit to tdgtew odd tenisge et totbtev edt tadt begry ak tI
_ torte eldiexeyer a eps
ms asd teetsa boogad Mottcearednt edt to taew test 008 or
edt boitivess eeffeqqa to Ltpeatod at edt brewed test F tsods to
aolim OS asdd seel guiffevatt asw teo aid ebaxg edt te motte
£ eng oF bexooL od sco tet - seeilieiaceliiale yp
2) | | - ari
edt no mtd es al deck. 08 Bue |
@ side of the street, and that he blew his horn as he saw appellant's
9 He further testified that he was compelled to swerve to the right
ise Slocum's car hooked into his car and turned it over; and that
e speed of Slocum's car was 30 miles an hour.
Appellant contends that he was travelling not to exceed 15
6s an hour and appellee's car was travelling from 35 to 40 miles an
: that he looked both ways at the tcbiensndwe and saw appellee's
1 about 80 feet distant; that after seeing it he swerved his ear to
left and appellee's car ran into his cer from the rear with such
ee that it landed across Eastern Avenue against the east curb.
There were no eye witnesses to the accident other than appellant
pellee. It was incumbent on appellee to prove that he was in the
tise of ordinary care for his own safety and that of his car, and
“the collision was the result of appellant's negligence. These
} questions of fact for the jury. We have examined the testimony
Renot say that the finding of the jury is manifestly against the
ME Aac eyidanes, In fact wo think the evidence is sufficient to
the verdict. A reviewing court will not reverse a finding of
court upon questions of disputed fact unless the finding is
fly contrary to the weight of the evidence. (Noyes v. Hefferman
1. 539; Fahnestock v. City of Peoria 171 id. 454; Henderson v.
y 116 Ill. App. 539.) 7
‘ It is claimed that appellee's 6th instruction failed to
in the jury in assessing damages to the amount claimed in the
Bration and to the damage shown by the evidence; and that the 6th
rs instructions fail to restrict the personal injuries and the
ge to the car to such as were alleged in the declaration. The
; sm of these instructions is not without some force, but we are
ible to say that as given they were liable to mislead the jury.
sr, the 7th instruction does limit the right of recovery to such
' as are shown by the evidence.
Appellant also claims that the 7th instruction authorized the
© allow damages for mental suffering and that there wes no
in the declaration to authorize. s recovery for such dmmazes.
“=
e'toalfeqqs wee ef es ored ata weld ed tedt Bos teotde edt to obte
tdgit eit of evrewa of Bellegmoo caw od sestt bottisasd re oH
selioug’ eater
tadd Sas < gt teve, tf. serous Sas tso eid otnt bexned r89 “eT muoole 2
“yaped fs eolin OS sew tso ea'mrooleé to
che Pt: sl rseag Resies.
@f£ becoxs ot ton anif{fevaxt esw ed tedt ebsetnoo inaltoqas
ms egelim Ob of g& mort gatilevsrd asw Iso @ ‘eolleqge bas nwo aa
a Ligeti 922 bas Hotvoounetit edi ts ayae tod bextool ad tadt
od 29 ali bevzens od 3 gatesa ‘xbite tas “jaastets Jeet 08 ten
sf pane h Ts Tum EE Ve
fowa ‘dtiw Teer ‘od mort 80 ‘ald ofnt net 20 8 ‘oottouse bas [:
Marys ee rs 8 ve = oe 5 vert es
Hey Berk. r:
aro tase ot taniass eoneva atedasi eaoros “‘bebsat OTT far
jotizev @ tt BhEt Fees i
bitattecas noid Texto. ‘tnebioos eae. of sonnent te 3x9 on ste cam g
edt ak asw than any vibe ot geen £0 trodmroat eaw i ‘ wel Legs
hoa peste sola itte oe S
— (780, ahd te taxtt bas etotes 0 ald tot ergo YIsi ce)
; iy it hate sotree see: leer cee >
‘ood? ssomaiigen e'inalfeqge do #Ivaet ont ase notatito oo
Bs < nex Dee. Pipe > Tae =
“wanitess ont bentnaxe evade ow oyu edt vot gost to emotta
ie ie sitven agrod Hept Se
etd fantegs {itect tnam Ee crt ods to ge tbat sat tedt hae
z Be %& eerie baewat Arte 4
ot tnotettie et eoueb tye ‘odd sine ‘ew fost al seonebive eo.
ns ANS f e > ; j epee St Hes Suge ss e
he salar? 3 earevex ton IL iw sxa00 “guiwoiver A Fe se ra 9
aha stot = 2 2A Fi fiz fehiifes Sot
al gatbalt eds eaolan fost detmyato ‘to a fogs
ay i em ey Pa are Be ey an hee a ce ee —
aamzetton av “aevom) “seameb ive eit to Peon siic nae ot hate 109
Fr eee;
ft. Ne
f MSTA shea PS pe bate
‘od boltet notéourdant ato a Yeettons todd homtafo ak
ant 26 d Licey oft ted? Senter eR ae oe
ont ck pomiato tnuroms odd ot aegameb autacoase wa bi odd
ey eet ev ss 4
“age ould tadt ‘bits ; caeneb tye edt wd ‘nwosde. egansb oar oF
i Ty igieers nia
adit bug ao rrotat SAEORTNG aat totatest re ftat oltourte
int off to teow swe? OO
_ edt -aoitsreLoeb ott nt bogolts exow as dose ot ig
Pieecl xs ee tie oe f Seay Peake 4
exa aw “tad ,ootot emoa dur tm on oy sustreecrous sae +
ei fi tery tee. att atags ont: Se
“Est ‘odd baola im ot oldatt orem sees nevis ae ee
ohtourdant WV ed
dowe ‘ot yrovooet to “tig fe eae ‘Sime eoob noitorréan as ,
i is ee i ae peels i ay Ci Fire ay RE Re iets: are a bs
ae é Be von x
ment ;
sa bes
ma ee
af s get sao ta Stal ae oe
on oe ‘otoitd tedt Bas guitetive
foo MS aan s [oad od Sle ted® pad tteowterel A :
. Roasme ose bat yrevooss 8 ttle ot noliere Co!
| decleretion avers that appellee was greatly bruised, hurt and wounded
divers cuts and wounds were inflicted upon his body, and he became
™ s sick, sore, lame and disordetfed and that he suffered great pain.
plaintiff is always entitled to recover all damages which are the
ural and proximate consequence of the act complained of; and those
mages whieh necessarily result from the injury are termed general and
the shown under general averments of the declarations. Only those
ages which are not the necessary result of the injurg are termed
eis and required to be stated specifically in the declaration. But
, body and mind are so intimstely connected thst the mind is often
rectly and necessarily effected by physical injury. There cannot
evere physical pain without a certain amount of mental suffering.
mind, unless it is so overpowered that consciousness is destroyed,
iB cognizance of physical pain and must be more or less aifeched
eby. We do not understand that the instruction or the admitted
Pin this case contemplated any other mental suffering than that which
nseparable from the bodily injury; therefore no averment of
damages “— necessary. (Chicago v. MeLean 153 Ill. 148.)
The seventh instruction is criticised because it permitted the
to allow future damages without an averment of such damages in the
Tation. In West Chicago St. Railroad Co. v. McCallum 169 Til. 240
ernment in almost the precise words of the declaration in this case
hela sufficient to warrant an instruction for prospective damages.
testimony of appeliee tends to show that he had not fully recovered
e time of the trial. Instructions as to future damages have been
6 y upheld on similar evidence. (Swinesynski v. Kelly Coal Co.
ll. Appe 158; Rumpza v. Knickerbocker Ice Co. 148 id. 433; Shew-
|. 606.)
4 It is insisted that the 4th instruction on behalf of appellee
datory in form, and emphasizes the duty of the jury to consider
n elements of the case. The portion of the instruction complained
8 “The jury are instructed that the preponderance of evidence
s not, necessarily, alone determined by the number
b. ow Ba eu pboalord ifsetg sew a: tones
ss ote
esos bas.
‘ F Z ager ae é ® Deeg
_eaod? ino “ano HeraLook oat to atueateve fexessg rohan. 9
5 , pak es he ¥ + eat
pomres sts emt odd to tinaes viasaever ott ton ets
; . Res ‘yal tasck ie
toe snottarafoos out are vifeottieesa betete ed ot boxkupes
Ya Bee Sees a a 2
eve al Bockm auld taxtt bedoentos eleteatiat 08 ets bola pes
feos [yu Of ete gee.
- tonne ees cearbat ieotayte ve betootte ‘Uitranssoen 528
a P RGIS aR a
ed Latnom to dosoms, sintre0, & dioatt kw see
-‘betoorte aut z0 ‘oot od team one aheq tsolecta ‘wa
eK e ee
beteiana, ont m0. nottorstent ait ted bnetatebay tom
ar trerr say ten
ig eres’ 7 es
> 4.
to dnomevs on ouokered? reswtst uitbod edt mort ef
OL LE Bek naoiol Si epeossd) _etaneeont sat ae
2 rere hie ty fa Bie ie es :
A +e a Hae
ons. VEIT ear eukinbellox ont chawsliad ae : ognoidd soon aL
“mod eves -aeganad oust ot as | snolvorstent stabst ‘oad “to
ieee aud Lf ostream
10D re swe “ y qBonok i882 Basa eax jo et gh
a ae id i feo sy ae
we ey Fs # a aceon al
oS SA eee |
Mee et REWS adh wel aod ae
Ds eagrine) as oe add te pam. heed “sontnasion bus ALOT
RR bas
nn testifying to a particular fact or state of facts. In
mining upon which side the preponderance of evidence is, the jury
a taxe into consideration not only the number of witnesses"
‘im addition thereto certain other enumerated elements. The giving
‘a similer instruction, although criticised in Lyons v. Chicago >
y Ry. Co. 258 Ill. 84 was held not to constitute reversible error.
Recuxt said:- "This court has refused to reverse because of the
ing of instructions substantially like the one here in question."
S nstruction. in the case at har was faulty and it should have been
ifiea or refused, but when considered wkkka with appellant's 19th
: instruction which covers the point objected to, we cannot think
jury could have been misled. To gustify a reversal on account of
or it mst appear from the record that upon another trial, if the
‘error does not intervene, a different result might be reasonably
jeted, so that the error would deprive the defendant of some
riel, substantial, legal right. Where it can be said from the
rd that the error assigned gould not reesondbly affect the result
ariel the judgment of the trial court should be affirmed. (Stans-
t ve. Wood 231 Ill. App. 586; People v. Heard 305 Ill. 319; People
jeir 295 id. 268.) We do not believe that the error complained of
et ad the result or thet if eliminated a #ifferent verdic® might be
onebly expected upon another trial.
Finding no reversible error in the record the judgment of
sircuit court is affirmed.
Judgment affirmed.
‘ oor cone Se oe a
-f
mee ess hate
okt 8 eurzood earovet ot ‘Beaute x a aaae
re sa
al sort Sian ed Ano tf ered ae tage alii
: ee Sacer ee
tome rtte dd Bioode ‘¥tws fait? odd to rae in
} TER Me: t)
—_ tit wR Bisek -v Japcciyal capil oad cA tit t
Piva
ia otbroy doen ra “boteictunto xf tet xe bese a
ATE OF ILLINOIS, )..
a BOND DISTRICT if I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second District of the State of Ulinois, and the keeper of the Records and Seal thereof,
lereby certify that the foregoing is a true copy of the
4 a Of ti stn
he said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of
said Appellate Court, at Ottawa, this (ME) day of
in the year of our Lord one thousand
of the Appellate Court
Tb aan
the eee ojalise aah at. me
* atoll lead:
1 dleegd pete cent nerpeomtad he
ers
De NT i
* ty hall
tickers
Uy
ahstaat
bi
aM
“day ef April, in
se
ine hundred and
ait
ue
tt i
of the Stat
, De i I
for the Seednd ae
hy
‘nyo
resent--The Hon¢ THOMAS M. JETT, Presiding Justice.
Bi
L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice.
JUSTUS L. JOHNSON, Clerk. ; y
FLOYD S. CLARK, Sheriff. 6) AA gals
ko “Ee OD:
BE IT REMEMBERED, that afterwards, to-wit: On the Opinion of
13, 1927 the Court was filed in the Clerk's office of said
irt, in the words and figures following, to-wit:
Pe keen Ue aA
pag HV amon
at mianAor
la be
WOTTR
yy
w se ett =.
wane Fyeeeoee oe
12
People of the State of Illinois,
il Defendant in error,
Error to Cir-
Ve Guit court of
. Winnebego County
es E. Allen,
: Plaintiff in error.
Plaintiff in error, James BE. Allen, whom we shell call the
adant, was convicted in the circuit court of Winnebago County of
ng in an open state of adultery. The indictment charged him with
ng with a “woman whose first name is Gertrude and whose last
or surname is unknowm." The first oount also describes her es
ws complexioned woman about five feet in height and of the age of
t 45 years. A motion to quash the indictment was made on the
that the neme of the woman should have been alleged in the
tment, or if it could not be ascertained, it should have been
zed thet her name was unknown to the grand jurors. The indictment
sufficient to inform the defendant that he end a woman, not his
haa lived in an open state of adultery and to inform him of the
ure of the charge. (People ve. Green 276 Ill. 346.)
It is urged that the evidence is not sufficient to estsblish
lt of the defendant es cherged in the indictment. ‘The testimony
ve that be lived in an spartment building in the city of Rockford
Gertrude Allen, from sometime in December 1924, to the last of
1925. He married IreMe Mae Behring on April 24, 1925, in Chicago.
refused to go to Rockford to live with him end he continued to live
) with the woman in question. He testified that Gertrude Allen was
dow of his deceased nephew and was only his housekeeper; that
: s nephew died in 1909, she came to Indianapolis where he was
living end kept house for him; thet he paid her $35 a month and
ror the upkeep of the house; that another nephew of his and se
of hers lived with them; that they lived sbout two years in
lis, moved to Detroit in 1911, and from there to Chicago in
,atontLil to etet2. ae Re
torre al Tree
=fiD of tora Eevee Jip mabe
to gusod Jisd vO :
ytourod egsdommtw
noltA »
»soxre. at wuneebets.
edt Ifeo Efede ow modw ,veL[A .% comst ,toTre mt thidmislt 4
to gtawod ogsdennt) to Jxs00 tivotto edt at betotvmoo aaw ,o2 sai
d¢iw mid Bogtado dnomtoibat eft .yrtetivbs to otnis mego He th
tas :
ae ted aeditoaeh oale suuoo tectt off ".nwomlar ef omantye
edt xo obam saw tromfotbat edt daasp of nottom A .etsey GP ¢
edd at begelis mood eved Sisode semow edd to omen odd “i
need evad bineoda si ,banistueoas ed ton SLu0o ti tk to ta
duomtothai ed? sarotmt Basta ed? of nworsias esw omen tod tedt é
att tox ,aemow es bas sd tedt doabmoteb edd mrotal of ts
edt to mtd mrotat of bus qresinba to etata nego as ni bovil bad 4
(.988 .fII SYS neetd «vy ofgqoed) sogtedo adt to
ef fatidatae ot tneftofttva tem ef eonebive oft Jadt bogua af $I
yaonttaes ef? .itnemtotiat edt at begtado ag tasbusteb odd ‘to tt i a
_ brotafood to vito odd at guibiivd dnomézaqs ms ak bevil od tout |
to teal edt o ,8eL redmeosd ai omivemoa moxt ,MoffA sberdte
,ogeotdd wk ,d8ef ,82 [itqa a0 gaitded eall ofterl betrram eH 4a [
avil ot besaitace ef bas mid dtiw evil of protaved of og od Boaw’
eew neffA ebuttieD tadd bettttieet eH -moldseup ot aamow odt ddiw.
tadt j;reqgeedeawod ald yine saw bas wodqon boaseoeb ais to wo i
asw ed etodw atfLoqenalinl ot omao ede ,@0@L at belb wodqon ati
pas dinom ¢ @68 sed bteq ef tedd jymtd tot savod tgex bu gutvtl
a bus ald to wedqen toddons tadt jeasod odd to qeedqs
at etsey owt dvods bevil yedsd tedt med? dgiw bev.
St onsoidd of etedt mort bas -fleL at tiered
"where they lived until 1920 or 1921; that the niece also lived
4 em in Detroit and Chieago until her merriage in 1920 or 1921; that
‘Allen's nephew lived with them in Chicago; thet he, the defendant,
1 dig continued housekeeping until December, 1924, when he went to
tora and engeged in business; and thet he lived at a hotel tempor-
y, but being in we poor health with stomach trouble he arranged
» Allen to keep house for him, agreeing to pay her the seme ag
The apartment they oceupied is of the type ususlly called a
shen tte hotel apartment.” It consisted of a living room, which
: at night as a bedroom. There was a double bed in this room
: folds up and disappears behind a closed door xmk in the daytime.
was the only bed in the apartment. There was a sun parlor, a
tte, @ dressing room end a bath. In the living room there was
enport end other furniture. Defendant claims that the davenport
eken into the kitchenette each night and that he slept on it
; The hostess of the spartment-house testified that there was only
into the kitchenette and that it opened from the sun parlor
BE 29 inches wide. She also testified that the davenport was 35
jo wide, and 83 inches longs It appears from these dimensions and
iM description of the furnishings of the kitchenette thet there wes
ry in it for the davenport. There is considerable evidence in the
the effeet that the defendant held out Gertrude Allen as his
introduced her as such elthough thet evidence is denied by
ore ht. The agent from vhom he rented the apartment testified
hi defendant said he wanted it for nimself and wife. ‘wo of his
888 associates testified that he introduced her to them as his
’ of them ststed thet he spoke of her as his wife on other
Bs
A number of incriminating circumstances appear in evidence
g 9 show that he and Gertrude Allen lived ‘together under such
eS ac was caleulated to reid@e an inference that they aid
88 Muux man and wife. If the proof showed beyond a
\
ea F
bovil eels ebeta edt tant eiaer to O8@L [tte — ean’
tedt ;{80f xo O8@L at ogaitram ted Ihde ‘ee so tet oh te mot
-tuisbsoteh one oH Went poneotdd wt meus atin bortr westgou an s
et thew ot ise pact ,Tedmecet Litns gntqeedeanod | :
-xoqmed fetod « te bevil of tad? bae yeeettbeird 3 edie ham |
begnerta of elducts dosmote dtiw défaed tooy me af gated. tad 4
ge omss edt ted yaq ot gnieetge ,oid tok sewed geet of nolta +8
ad? Jiao ffadn ex wed nelis of see cto ek eee a.
s bolfas esti yy d ent KO ak Perynove’ aka
‘Yietvw \noo® SxivEl 8 Yo bese tecod VT)" Ltseidh ses deen wth
woot wind nt bed elaveh s caw oreH? Groorbee" Ss baitidanibins<
somttyhb off wt att Yooh Beaofo & butted axeeyyedth :
8) wo Read nve’ s weir erelT ° ledeindesye ic bot ie ata
‘gow sors mote wabvif SH? aT oO Vdhed @ Bae Poot 4 aoe
Progtiered ott Hrtd Sin icici "Uinta? a ie rou
OE de Pata et Suita EN ain ERT eSHHON BE it | ea
gino saw ‘srodt doa tertitver seved-thetiiteqy’ cif |
toltsd ‘nue Sit dott betego’ Fk Tait bie’ dee odsifoF EE § 20
: BE aid Ved qtOED wilt Yai BOVE Se obit! wae oh aii 7
| bra anchtenemts sadt® mor? areeqye FI «igre! ‘eetont B tw
| ak text fet ei¥erodod it ede to wt fife Herot ect OW.
9 ; 6X2 AE sonoBive eldstediaace et ered? strotineveb ote xo¥'S me
| aff ae He Irk obwettsb fio ‘Bred via sHoTeD Sie Fede sovtno ous « oe i
: Gd bOTKON Gt Gonebive Wut Wiybole EY Howe eu Hen Seeley eee
“Heat drom! regs odd hotuoe 6 Mody hee endyaeHT Vhaee
etd Yo vw \ettw bas tfouktd ror Fr peitnew eH Dida! AiteBite!
O° gti ge WHY of ror Seorbortivt off tent beTETtae SF avthLBO
ee fo’ SEW otn ‘ks vod te oxeya’ oi Set neeenetaiiel
ia an wesneatieqoagionk of ema ere (OOC) of Satie
“ ponestve ni wséqqs Reon tamferlo gti oitmetelt
dose robrir Yodttegog’ sore sty sabe no Fin
Sb vert f8Kd Sonbretit hat Vbtay ee 3
= mee a wot hd :
i
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by
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a
leaabie doubt thet they were in the habit of committing edultery
r, then with the evidence that they were openly living together,
fense was proven. It may of course possibly be true, as cihimed
defendant, that no act of adultery ever occurred between them; but
_ men and women assume those relations, commit those indiseretions and
; ad themselves with the circumstances, width; by the common consent
iis ind, based upon human experience and observation, lead to one
mr jion--thet of the existence of an adulterous relationship
ay them,--they can have no reason to expect that courts of justice
1 put & different interpretation upon their conduct ana by some
: ss of artificial reasoning refuse belief when all the world would
need. (Crane v. People 168 Ill. 395.)
It is urged thet the court erred in instructing the jury that
se you find the defendant guilty of adultery in manner and form
bh ged in the indictment or either of the counts thereof, then the
| of your verdict may be ‘We the jury find the defendant James E.
m guilty in manner and form as charged in the indictment.'" The
» fact that plaintiff in error may have been guilty of adultery would
1 sufficient to authorize his being convicted of living in an
. ate of adultery. Before one can be convicted under our statute
roof must show not only that the accused committed adultery but
he lived in an open state of adultery. The instruction is subject
: ticism, but we feel, however, that the interests of the defendant
} Rot prejudiced by its insufficiency because the 14th instruction
his request stated explicitly to what extent the evidence must
to Egetevaicn the charge as contemplated by the statute. Instructions
to be reaa as a series. Where a series of instructions embrace _
lew of the ease when taken and considered together, and it appears
1 the reeora that substantial justice has been done and the law of
awe say been substantially gixyenk given $o the jury, the cause will
rs Boonie 198 id. 162; Quigg v. People 211 id. 17.)
ee ee ee ee eee >
I
Yretinbs gatstinmoo to sidad eft ak ezew yodt dace $d
stedtoge? guivil yineqo.erew yedd: tad) Seared tye: ond, 4g] 7
_ -bemisse ag ,oatt, ed vldieaeq. setseo: Yo. yan aE ie sov0x4 ‘aowe ;
to wad? Howie d honryese Tove yrotivha zo fea en: Sadia tes
bus gacitetosihui enous: # tang; ~aaolisiex exesds- peeakies senor : "8 49
tusaseo Nome 9 aad ce ,foldw ,seegnayvaavoxto. od lithe! 2OY sf o
ong, ot Baol »agitsvioade bas eeaetzoqxe nem ‘nous Seand: b ,
' _ qhiaactieles auczetishs se te eoneteaine edd te testd antes
estteart to sirscs tadt tosaxre ot moaser ca oved nee otnn mods . 7
enioa yd fos toubuoo thedd soqe motdedosaredat- twerettth os tag
Bisex Sixow od? Lis oedw tetied easter aninoaset Istoitivre to wat
Smee (B08 9 ffX SOL ofgeed av enget useen bem
tact ts odd. anitaortact ni bevre trv0e odd todd Hogue aber
mrt bas cenega of yiedishe to wtiiog tashaoted eat batt wey” soa
Mit, Net. .ReAed?, mAnsee, 94k to, naa he ‘mm tanmbeAiad ei i ears!
ot pemst tnabaetet ott. Salk gust ont ow! od yam oy ko
ex? *',dsemtertsai edt wt beguado aa- exe baa mento af. >
Risow yuotinha to ytling sood oved yam woute at Utkintelg take 2
1a ut gaivil %e hetotymos guted afd oxkxoddva: of! tustotttnd ws
etviste t06 soins betpivacp ed nap ano etetek +yist inde: a ts
_tud yietLlube beitinuos. boaveos ent tedt y Lae tom wed tame 8
tgofdim el ecitognyenct ed? syxedinba bo edetes meqo Lalaah :
= deabxoteb odt.to, atusretmt ett tent provewod ,Loet on ted: ce Sbet
eolieuriest SdMf. edd eevaced yoreloltivant etivyd on
tonm soqebive edd. teetxe tedw of ylttoliqne. botete: troupe ahd 3 ; :
atoiiomngss! s.sfeteda od? yd betaiqnotnes es sgtade edt: tds:
_ soerdae accitegrdest te aeites a ovede weeltee a aavbat
vin, the 5th, 6th and 11th instructions for the People amounts
© more than an essignment of error, and as no reasons whatever are
din support of the alleged error, it is waifed. |People v.
mer 271 Ill. 515.)
3 It is insisted that the court erred in refusing instruction
1 offered by the defendant. The substence of defendant's refuded
: tion No. 1 was given in his 14th instruction. The refusal of
er instructions is not ground for reversal where others stating
ects the seme principles are given. (Henry v. People, supre.)
: grounds for reversal sre urged but we find no reversible error in
ecora and the judgment of the cireuwit court is eccordingly
Judgment affirmed.
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OF ILLINOIS, )
Ss.
OND DISTRICT
I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
he reby certify that the foregoing is a true copy of the
he said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of
said Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand
oer
k of the Ease Court
vy Cey
#1%
PE TSIeM
eet sean agent: te aoe # a |
et
“ins eiesn
Derhel we)
DARK ER Tee rao i toe ea
haar B10 ) ji ‘true
seven,
within and for th eond District of the State of Illinois:
esent--The Hon. THOMAS M. JETT, Presiding Justice.
Hon. NORMAN L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice.
JUSTUS L. JOHNSON, Clerk.
FLOYD S. CLARK, Sheriff. DQAATA eR ra
leas # fa : 4 3 wp é
BE IT REMEMBERED, that afterwards, to-wit: On the opinion of
13, 1927 the Court was filed in the Clerk's office of said
rt, in the words and figures following, to-wit:
Dt
we
oe Loe.) ee
bieas
18
‘Morgan, appellant,
= Appeal from
VSe Cireuit Court
of Peoria County.
n Baily Carson, et al,
appellees
Appellant, H. D. Morgan, filed his bill in chancery in the
cuit court of Peoria County against appellee, Reuben Baily Carson,
al, seeking to have two deeds absolute in form declared to be
gages and to have the right to redeem therefrom. The bill was
by Morgan as assignes of a judgment creditor of Charles W.
nsfelder and Elizabeth Gruensfelder, his wife, and upon a hearing
chancellor dismissed it for want of equity.
In 1917 Elizabeth Gruensfelder held the record title to two
es of property described in the two deeds in question. One of
tracts was encumbered for $3500 and the other for a slightly
amount. There was still another encumbrance on both tracts for
$2500. In July, 1917, Elizabeth Gruensfelder and her husband
yea the properties by separate deeds to appellee, Carson, subject
1a encumbrances. There was a dwelling house in which the Gruensfel-
‘Ved on one of the properties, and a store building was on the other
Within a few xiys after the execution of the deeds, Carson leased
dwelling property for one year from August 1, 1917, to Charles W.
isfelder for $40 per month and s written lease was executed to that
On the same day or shortly thereafter, they executed an endorse-
on the back of the lease whereby it was agreed that if the lessee's
Who was then in a hospital, should die during the term of the lease,
ath should terminate it on the first of the following month.
a and Gruensfelder surrendered poss#ssion to Carson. In a short
after the deeds were executed, appellee gave a written undated
Gruensfelder to purchase all of the premises for $11,000 at
me within a year from the deste of the option. There is a conflict
ce as to whether Gru | Pe
g ai attorned to appellee
mort [seqgAé
a tasod timottd
i sytared aireel to
edt mt yxeonado mt [ltd aid beLlt ,msgroM .¢ .H ,dmelleqaa
— ymoeted YLied medued ,sellequs tentsgs ytnsod siroet to tisoo
eS : ed ot bexsfoeb mrot at etwfoeds abseb owt oved ot eae
cy | asw Iitd oT ‘.motteted? moebor o¢ ddgix edt evad o¢ bas as f
. apy
.W aeftad) te tod¢tbero tnemabut s to aengtees as megroM yd
Siete i)
anizaed 8 noqy ba .otiw aid ,tebLetenenzd dtedsxtifi bos tebL
sttispo to Jnew cot ti beagtmaib noftnan
3 ‘ owt of gigi} roost odd Sled tebLetamewr) déodestiH Viel m1
bs Ree to ex0 “\motteoup ni abeob owt odd ni Bedtroeeb: sit toe
| yltigife ga tet vedto edt Bos 00888 tot perodmurose naw ato:
to8 etosxd died mo eonstdmrome redtons [{tte aew otedt mel
buadawd ted bus tebLetenenxD dtedastia Viel ,yint af .008s¢
tootdue ,moats? ,eelleqqs o¢ abeod etatsqea yd aeitireqoirg edd « OX
alg
Letenoued edt dotdw at sevod gnif{fewb s aaw etedT -eseonstdmsone
- tedto edt no esw gntblted erota s fue ,aetiteqotg eft to emo mo bovkt
peasel moets) ,abeeb edt to moitwoexe edt tetts axes wet e& nid he a
es aeLlredd ot. ,TIeL .f tangy4 mort teey emo tot uirecext guilier
tect et betvooxs esaw easel aedsinw s boe dinom teq Od¢ rot tebLote
- -eatobas ns Botwooxe yedt ,tettsetedt yittoda to ¥eb enmse edd 0 ‘“
ivananat edt ti ¢adt beorgs esw tk yderedw easel oft to dosd edt mt
<e
an
al
easel edt to mret odt guizeb eff blyoda ,fatiqeod s at nedd saw ©
edtnom antwoffLot odd to vatit edd mo t£ etantmres bisoda |
trode s aI .foared od noteatesog botebnetzwe rebletaneyt) 6
betsbas nettizw s eves solfeqas ,betvoexe etew abeob odd ted
a
paid rent for the dwelling while he lived there, and as to whether
a appellee received the rent from the store building after the exe-
‘oution of the deeds.
: By the amended bill, it is alleged that Elizabeth Gruensfelder
without funds to pay the note secured by one of the trust deeds
was fearful it would be foreclosed and applied to Carson for
pncial assistance; that she conveyed the premises to him as security
such sums as he might be required to advance to prevent foreclosure
f the trust deeds and mortgages; that although the deeds appear to be
Rtate, it was expressly understood, intended and agreed by Hlizabéth
Mansfelder and Carson that the deeds and the premises therein conveyed
to be held by Carson simply as security for such advances as he
ht, from time to time, be required to make to prevent foreclosure of
} trust deeds and mortgages together with interest at 6% per annum;
said Elizabeth Gruensfelder would repay such advances and interest
hin thirty days after such advances were made, and that upon the re-
m nt of the advances with interest, Carson would retonvey the
premises to her. |
The: answer to Carson denied that he loaned to or for Elizabeth
lensfelder any money and averred that at the time stated in the amended
he bought the premises from her, and that Bhe conveyed the same to
m in consideration of large sums of money advanced by him to her, and
at the premises became and now are his absolute property; and that
| 8 part of the consideration he discharged aWd had the encumbrances
the premises released.
| A large number of witnesses were examined and the testimony
“voluminous and conflicting. Gruensfelder testified on the behalf of
pellant that in a conversation between his wife and Carson mt at the
pital, an arrangement was made for a loan and the conveyance of the
jperty to Carson as security, substantially in conformity with the
of the bill. He also testified that Carson demanded the lease be
Suted because Gruensfelder's creditors would know of the deeds, and
. asked Carson for something in writing to protect his and his
eer serent in the property and this request resulted in the giving
tsdtedw ot ba baa ered bevil off ot hate’ gatttows ort
Lid bobaoms oid te
| xebLetanors) ddodee tra tat? ego te ait st
rm "3 rfz
Le .¢
abesh temtd eft to emo yd berwoee eton edd wea of “aback
© shew igh poe
Af Bk
sot moetad ot betiaqgs bus pane teenie ed bio w at inties
| Yttxvo0e as mid of seeimerg odd beyevnoe ene tadt joonstatens !
| etmaofper0® tae vet¢ oc eonsvhs. ot baxiapst ad dietm enh eas amare
‘ od wad lene eboeb ont dares te tedi , ;asgsqétom baa ebesh teost
‘d¢eden iia va heetgs Sra bebnetat ,boovareboy ylerexaxe oom seins, :
ee a8 - beonsvbs dena, 0%, ee, es yigata moered. ya» Bho. od
-£o ersacfoezc? tneyetq o¢ eiusa og. Serinpert,ed somtd, ot) omkt
(james Teg a ts teoretnt d¢iw codvegot..aegest rem, bas? ebeos'd
taotetat baa eeonsvhs: ose yeqer. Sigow. a tebletasesse witodantiarht
| ee wtf’ ‘mbay todd bas ,edsi0, otow geonsvbs, dows, setts: aysh. vutakdt
| odd yaw bLaon moered ptaotedah Sim nnenamba ot ore.
o co
— sod ot até vy beonsvha, yenom 29 Bie aek te cohen ial ‘
ees en 4Utnoqoxg etuloads, eid era won. bate. aniseed, asaimenc ait 4
“eoousr away. ont bad. BiKs bogtadog th, est, nottaxeblanoo: eft: 209% 8 @
_ sbease Lox’ een tneny it
Rat tae Foes yas
aceeaet t odd bas Beniuexe, Oxew. gerneed ia: £20. rodmea.eptet A ae
. written option. Ajl this Carson denied. A number of witnesses,
f whom are cousins of Gruensfelder, testified that his general
tation for truth end veracity is bad. Three of them also testified
onversetions with him in which he had indicated that he had sola
property. Graensfelder and two other witnesses testified that
on's general reputation for truth and veracity was bad. The attorney
arew the papers testified that Gruensfelder and Carson were in his
ce a number of times; that they talked about whaking the deeds;
Mrs. Gruensfelder's acknowledgment would have to be taken at the
ital and that the substance of the proposition, as far as the deed
concerned, was that Carson was buying the property from Gruensfelder,
thet Carson was to pay off the mortgages. He also testified that
nsfelder and Carson figured up the balance that would come to
nsfelder above mortgages, taxes, costs, ete., and agreed to an
ot that would go to him; that he heard them telK about payment
Beate, and thet there was never anything seid or done in his office
| would lead him to believe that the transaction was other then a
fide sale. He further testified thet nothing was said about the
mn at the time the deeds were delivered, but it was drawn lester.
It is impracticable to review all of the evidence in this
: ithin the limits to which an opinion should be confined. Hnough
has been set out to show that there is an irreconcilable conflict
Piatinony. In order for appellant to be entitled to the relief
sd for in his bill of complaint, it was incumbent upon him to
blish the utkmgutiamex allegations of the bill by the greater weight
i eridence. Whether or not the allegations of the bill were
lished by that weight of the testimony was primarily a question
he chancellor. fhe burden is upon the party alleging that an
rt % purporting to be a deed is in fact a mortgage, and it must
stablished by clear, satisfactory and convineing proof. (Kelly v.
mm 279 Ill. 33; Council v. Bernard 219 id. 392.) The law presumes
e absence of proof to the contrary that a deed is what it purports
, that is to sayy an absolute conveyance. The burden of proof is
he party claiming such an absolute deed to be a mortgage, to
a os
,aoagontiw to er, A sbotheb re aie et pe iperirgh setth
3 id “0% toes
fetenog. ald tedt bettiteet ,robLotenesxd ‘to. an tases ets modw
SD BETES ipa ee bie
Beltitest oafa medd to cerd? shad at yttoatey bas aiyer. ey
bLos. bad ed. tedt botgotsat bed oa dotdw at ant ef ithe. ‘ano ttssn
4 Sehagns gd een
_teadt beititess aousend iw zodito ows bas ‘rob Lokenogsd »UTTS:
: (ey abs er is Are: 3
yentosss ett hed aay xdtoarey bits ftoxt rat no ttedoqor Tateneg @*
t od Bae ae Cea ae
aii at exon noasa? bas sob fotaneut tot holtisaet ateqeq ent
| jabeek edt gatish toda hodlat gods tent jeomts ‘te <i3e8 i ‘
| . etd te moedat ed ot eved blac" tuompbotwenios « 2" xobLetanewso om
beeh oct as ist ae a0 ft taogorta edt = eonetadsa off teat bees fs
(reblotasoirr most ytzoqezg eft gelgad, new noats0 pry
tadd beittiast cule oH. sqggagi zon ong tio ‘yeq of aaw noeTe0 | ~
ot ence blyow tadt sonata eds a ‘borg it gps i ote
as of Searge jae ,,ote .ataoe a0xad ,2egagtten svods nb fe
£3 eS Fon :
tosmgag tvods Riet mot bused od teat jmid ‘ot 03 “bisow -
HSciG: S Beeyg
eotitto aid ai.esoh te bise satidyas <oven aaw ‘oxedd raat bas Pree
o nA 3 x g
RoI, ae ROY Gite Ke are
eit tuods bise asw guidton tadd bottidess maint oH oie
S3ib Re ieee
atetal mwerh sew ve dod boreriiob oxew aboob posi emis ods ts
THR BIN OT rad
Setcnu, OL6t ak sonebtve odd to Ife wotver of eldsottoaraut at 42
Me | 3 ge STS evcte WE elk ee
_ dguont, .sheattnce od bioda no bntgo ns dio stn Dei adimit odt midd ty
3 & BitS eboeayel, ad 9
» Fotfiaoy sidgtonooen:t ae at erode teat woda ot ‘tue toa seed
: Re Wp | AEG te es,
Reifot odd of beltitae ad ot nstfequs sot ‘tebr0 el +
SUA aa So 33 Foes Parse oe
of siid mogs. Pie - aaw at .txtelquoo ‘to {fid etd ‘at 0 rot ’
LR OR OO. Oe Ag eae een
halon teteetg edd yd [fitd odt to anottagefls mmmbeypmbis ‘e@
aap ae eT 2S sea Tred bes
Ber, atid. edt to Asolisgelis edd Fon To xedtesd¥ Pe yerst)
DANA Sa BS Wiz! és
Hoiteesp 2 vitveming ue yaontteed odd 20 _tigter tedd ed bests
Lhe iE eke ih. SRR er eo Pa
Se sadt gatgelis. yateg eds Rah et ‘nobrud ef? zoel
SLECYN OD Sd eee
tegm o£ bas .S3asgttom a dost nt at boot 8 og ot gattzoqume 2
RS a GONNA ER ie aie
«V¥. ¥ilex) . oor sutontysos bas yrotoateltaa .tselo yd beda
i) od 28 FROGS Ry Ba Bee oF:
eamyaetg wal ent (+ ses apt. ers brsr0€ v Lionvod Res REE
(al QL OR co km aie ie
.e@tegzog di tedw et Boon B tastt yrsrta0s outs ot toorq to babs
#8 Las Dae Ph, UE Diag at
BO2i evri09 of ifoads is ¢yse ot at ten
vee Lae Cad erorea oMtg e ara Aww wes
ot het Aaa 8 ed of eee etutoeds os dope git. ytieg
Pee i > a Be : it aoe. Bice (eres ee ie th ak es Rete f
Bt, toorg Xo fe bssrd eit |
n his claim by evidence, sufficient to overcome this presumption
> law. (Heaton v. Gaines 198 Ill. 479; Williams v. Williams 180
1.) This, appellant has failed to do. After an examination of
estimony and exhibits in this case we are of the opinion that the
slloz did not err in dismissing the bill.
fe
The decree of the circuit court of Peotta County is
Decree Affirmed.
ie S Age ay ape
tqmrasty eee evo of
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= al ov ametLiiy
F : stand. Cs NOR Sane
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Gackt awh
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Pe Pe BOROE A ice pet
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iad aaa BOA, pet sak heme # | oe a ne to.
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Re SER pre: ame
“ton: oseg's a
ATE OF ILLINOIS,
COND DISTRICT j I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second DistriG of the State of Illinois, and the keeper of the Records and Seal thereof,
e reby certify that the foregoing is a true copy of the
In Testimony Whereof, I hereunto set my hand and affix the seal of
said Appellate Court, at Ottawa, this As "___day of
ee the year of our Lord one thousand
nine hundred iv, =
U/
tee Seen i Sy m
giver) stelloqakt odt to aval).
dosiadt lage? bra’ y an
e \
» ae Dae
rel in Magrath fn! yl Are pd a ryt) ane Ry eaceouese laa mane See al
i , i Manat
I ‘ Sito witne rit Drogen Les)
10 leas oilt yilte bine baad yan od cane ted
Me yab,: zr Ps tk Se Nt Ta
Cet ate 4 ro e a
Hon. NORMAN L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice. AG
JUSTUS L. JOHNSON, Clerk. 2 A. AYA. 65 ¢
FLOYD S. CLARK, Sheriff.
{ May 26, 1927
BE IT REMEMBERED, that afterwards, to-wit: On/ the opinion of
the Court was filed in the Clerk's office of said
+t, in the words and figures following, to-wit:
pak
SHOW
" }
ew
aM eT
iTS
ag
é
Shs i
Agenda #5.
hia J. Case,
Appellant Appeal from the
if Circuit Court of
De Kalb County.
from the Circuit Court of DeKalb County. Cynthia J. Case, the
ant, filed her suit against Charles V. Weddell, the appellee, to
for losses alleged to have been sustained by her by the sale
e1 of certain shares of the capital stock of the United Agency, a
it rating corporation, through fraud and deceit. Cynthia J. Case,
ei that Weddell, who was a Director of the United Agency, conspired
other directors and officers of the corporation, to mis-represent
Bae finencial condition of the corporation to the public generally,
noble the corporation to sell its stock at prices far above its
Se yalue. She charged that they did make such false representations
er; that relying upon them she purchased 750 shares of the cepital
k of the corporation, peying therefor $16,394.00; and that she lost
entire purehase price.
‘Upon the first trial of this cause, the trial court instructed
ju y to find the defendant not guilty at the close of plaintiff's
ence. Judgment was rendered against the plaintiff for costs in bar
le action.
“The plaintiff appealed to this court where the judgment was reversed
the couse remended to the Cireuit Court of DeKalb County. When
r the first time the case was Number 7064.
cause was again tried at the Februsry Term, 1925, of that court
a verdict was rendered in favor of pleintiff for $20,969.83.
ment was rendered on the verdict of the jury and Weddell, then appel-
| eppesied to this court. On the second hearing in this court the
ment of the Circuit Court was reversed because of the giving of
us instructions on the pert of the pleintiff and the opinion
@ in Number 7264.
34 sbnegs —
eft moxt [seqqa .
to fars0D tisortd
Ytnsod dist ef
Pa sis00 eit eroted need ead easo atdt owt &: bride oxié af at
oe edd ,easd .& sidtaydo .y¢snnsod éLa%ed Lo tesa tisortd odd ‘mot £
o¢ ,eelisqqa edt ,{f[obbeW .V aelrsdd teoisss visa ted beltt tnel,
efea odt yd ted yd bontatanea meed sved o¢ begelis acaaol rot 3
8S ,youegA botinU edt to aHoota sage 4a eds to eotsde ntetze0 to |
,9280 .G sidioagd ,stooed bias brext ‘dgrotadd ,moltsreqroo eae
ne *ToueRA botinU edt to sotoetid 8 esw ode Llebbew tadd 6
- dresetqot-etm ot ,sottetoqros edt to eteoitto bins atotosrtb t dt
Ritexonss otideq edt of mottstegros edt te motttbmoo Istonsatt
_ _ ett evods tst Peotae. ts woote ett {fea of nottereqros: ait
notisineaetger evaist dora beat bib yedt tect bogtedo ed? sousy
fatiqss srt to estsde O&¥ beesdoteq eda ‘modd nogs goiy¢for tedd
aol edé@ tadt bue ;00.S¢8,aL% xrotetoedt gniysq wie ttazoqros edt %
soottg eeadoisg ort
betouttent ¢rvoo [aittt edd ,eanseo aidt to LIsitt saxit eid H0
g'ititntelq to eaofo edt ts ytitog ton tnsbmoteb odd batt of
ted nat eveoo tot ttitalsatgq edd tanisgs betebnmst aaw inompiut +e
rnottos od
Boerovos aaw tnomgbst edd exsdw disce atdt of belseqqs tiitntelq i
nedY .yduwed diskxe@ to frwed Fiwortd edt of Sebisiet eanso
Dd0Y tedar% esw saso oft omit song ont x
“fuses $add to ,éSser ret yarrdeX edt ts beizd niege asw eaves
«68 .2d@ ae, tot ttitaislq to xoveat of betebmet aew me
edt txusoo atdt at antrsed buooea ods a0 «t1900 aid of bos
to anivis edt to eaysoed beatovet asw tx70) tEworko ort
ee
mataigo od bus Yidatslq edt to dzeq edt no eno btomrd
‘me opinion rendered by this court on the first eppeal of this
Peontains a full and complete statement of all the facts in
“ease as they appear from the evidence offered by the plaintiff.
. the first opinion we held that the evidence of the plaintiff
rj tended to support the averments of the declaration; that
pher this evidence showed fraud and conspiracy was a question of
| for the ¥ jury which should heve been submitted to it. From an
Binstion of the record itsppears that the testimony wma as disclosed
the record on this appeal, is very similar to what it was on the
ba appeal. :
“We do not deem it necessary to make a detailed statement of
facts in this case. The testimony on the part of the appellee tends
rove his contention. The evidence fairly tends to show that the
ements made by Weddell were made in good faith and believed by
fo be true. It was a question of fact as to whether or not the
dant Wmiieizk Weddell had conspired with others to sell the stock
| United Agency by means of fraudulent representations.
In passing, it might be well to state thet the reeord discloses
‘at the time of the sale of the stock to the plaintiff she lived
her husband Francis M. Case, and her daughter Miss Stella Case,
4 Paw, Illinois; that the actusl sales of stock to the plaintiff
made by A. Le. Morris, a stock salesman of the United Agency.
is hed previously sold some stock of the United Ageney to Dr. William
Y, who wes a practicing physiciah in Paw Paw, and was, at the time
le sale of the stock to the plaintiff, and for some years prior
to, head been rooming at the home of the plaintiff and her husband.
‘Morris sold the stock to Dr. Avery, the doetor introduced Morris
Sila Case, and shortly thereafter, in May 1917, he sold 5 shares of
to her. Dr. Avery of the daughter, afterwards introduced Morris
@ plaintif?, and he made three sales of stock to her. The first
was made on June 7, 1917, of 137 sheres of stock, and the purchase
was $3000.00; the second Sale was made August 18£h, 1917, of 513
£ stoek, and the purchsese price was $11,300.00; the third sale
vas arranged for in November or December of 1917, sna finally
Sighs tn al en meta anette geen mie a my em Me 1 + pee al te Seah me ly SON a a I a a en ls Tar a rere nai
2 pcan ay ; is 4 i
atat Sg faneun tarit ea no ¢iusoo aids yd borebaet picks
y aeo0 :
gt atost edt fis to merengue te bas Ifst |
-ttttintefqg ot ve. ‘povekto: eanebive edt mott teeqqe qedt a8 8s
ttitnislg edt te soebive edt tadt bled ow ake a
tefit s:mofietalpeh edt to atnemtevs sds Jtoqgsa os yee
abs ae
“ine aoite erp @ aew Tear teeny. boa bases si a soneh ive nel
; ett tg Lad Bod GE Brae
ms more -ti of eid india ead pena Biaode donge wart x edt +t
diated tec sepagg TED os? woxe s
beaoloats as ax Ynomiteos odd tai? ateene te Sreaee edt te aoktun
tape tive red Betts: oF
; eng a0. 2aw tt tadw of ‘arb ta crey at OnE atdd mo breost ¢
Ge tes ot bopelia sedaesl som Se
-Leeqqs &
<tivae ea? %e evades whedon Boom
%o tnomotse bottoteb 8. eis ot Vissassen, ti meob tom ob of
$9 Dt REO G Ses okies: 3
sbiet eelioqus ott to irsq out no yaomtteod “ea? +9869 aids af ef
ch od we Gi Cirepney peg Gs 2 a
edt tent works, “% abnot efziet sonebive od? snotiaetaxoo ald e
2% TeOoITeS Bee SkOSSORLG Bere
ww peveitod bua st bt bog a oben etew [fehbeW yd ebam adnes
io oe costihetn Lebdiedeee
out ton ro reditonte ot as fost to ne ivaenp 5 gaw JI .entd
“A Firs 1 hee aay.”
toore ond ffee ot arento Aa bw bextganos, bed Ltebbe
gu it testads eae Cpe
sanoitedneaetger ino tobaest to ance “yd vorega bet fk:
3 SUN ghar ee Tima
aoeoloats brooot oat add otate of ‘Low od tdgte th ,gateaaq
oivakegtoo ade
“povit este etitatslq pity eo? inate edd ‘to eta “ot Se eae edt
SPADE SeGeotse, Ieise
(9880 alle whois roddguas ted bas 008d oi eaionstt basdesi te
) Laie? test edt poe
weidntolg anit of aeota ‘to aetaa Tautos out ‘tedd yatomi tll prigio
es caisetel sa Bake ae eee
wyomoad potiay ont to ansaaetae yore a ,alrtol of .A Yd 8
See cae sreig Aah Lae
abtren sa o¢ conned betinw odd to feote amon ‘pron yiesotvetq re
+O CFD
emis ont 38 Lanai bus Wad wed nt fistotayda gutoitosrq 8 asw odw
He “tit oy Sefmegga PLES RTe
going axaey amon wot bre. Ttitatalg oat et doote edt te e.
' \ ot of tetsacee seme
Sanden ‘tod hae widaiale ond 0 omer outs js gnimoot meed
on? eat Sart “eae
attoM boouboxtnt xot908 odd sCreva 7 ‘2 stoote edt Sfoa 2!
. snagdat 6¢7 ¢2 6932? Bees ane ‘onsen @t
to gerade a pLoa od Ler yok at reftsotont yitxrede bus ,saed
uvar ne Rezebaeet nen Bet
alrroM beouboxtnt abrawxedke reddgaab edd to YLOvA »TC 23
sut e0% te totoeov. war oe Paige 3
dexit owt toot ot xoota to aelsa esetd? ebem od bas.
: teen Bases AF 2G LLTOD o Lae oF bok
santonm ost bas foote baie ——— ver to LOL «¥ OHNE |
Hause vet aaet “preoe * ae ;
&ia to weet a8. Fema ebom naw efsa Bnooes adt {40
“a thigalgits str Fe tray ong, ae asoee
alee: ‘Spat ae 00, 008 ue aaw soltg sasdorsg 22
x0 swipes nists
brs ,VLeL to te
rlaete se fe
pleted February 20, 1918, and was of 65 shares of stock and the
Rise price was $1495.00.
Qhere is nothing in the record so far as we have been able to
Sertain, to show that the defendent had anything to do with the
1e of this stock to the plaintiff, or that he knew thet an effort
ME beinc made by any person to sell stock to her. The record shows
t the plaintiff has known of the defendant for years, as an honest
1 of good business judgment, but had never met him personally but once,
| thet was on February 20, 1918, at the office of the Unitea Agency in
gO, where the plaintiff went with her daughter to complete the
ase of the last block of 65 shares of stock, which she had
riously agreed to pruchase. It appears that the only conversation
‘the plaintiff ever had with the defendant was at the time she
| on February 20, 1918; in that conversation the plaintiff
ifies She said "Ma Weddell, I would like to know what your opinion
bout the United Agency Stocky" and he said "I @on't think there
ay better, I don't think there is any better investment that I
of"; and she further testified; "And of course that sounded
of encouraging, and I kmew that he was a farmer and a good busi-
mar and I thought he must see something about it or he wouldn't
to it."
me record further discloses that Dr. Avery testified that he eins
m1 Ysation with the defendant about July 15, 1917, about United
ey stock and that he told Weddell that he and Mrs. Case were going
215 on his judgment in this investment," and that the defendant
"it was one of the best, if not the best investment, that he knew
| the United States; that he was putting his surplus money in the
ny, and he couldn't help but advise others to do the same," and Dre
| municated this statement to the plaintiff within a few days.
above and foregoing are the only representations or statements
d, the record to have been made personally by the defendant.
It is the contention of appellant that the cause should be reversed
1e facts. After a careful exemination of the record we are not
set aside the finding of the jury and reverse and remend the
ew triel upon the ground that the verdict is contrary to
edt bus wloote to gerade @8 to aaw bus ,6LeL ,08 yxendet
msoo STS Vg Beare” eow’ eoleg.
of elde need avad ow as Ist 08 broDeT eid mi ShtheGa ake
edt dtiw of of gnidiyas bad Sxabueteb out ted wode 62° {at
- grovte na #ed¢ weet od dads to (ttttetely edt ot woota aidt
wots brooey 6d? wed ot aoote Tfea ot moaxeg yas ed ebant 3m:
faonod us a8 ,eraey tot thebastes eft tO nwort eat trthiata’ ed
~pouo gud ‘yflemoateg fata tem teven bad “dud” ,tmemg bbe aabatead Boog te
gt yokegd betia off to eottte oft te ,BL@L (0s Yxestdst m0. eaw $6
eat etefqmos ot soddguab red atiw show’ thidets te bad? or eiti’ Os
bad ede dotdw ,toote to eeteda 83 to Hoold dast eit to ad
no ltears vo ytso eft eft axeoqqes $1 ,opadosrg of beers vas
pie emit edt ta asw inabneteb edt dtiw bad teve saniktatd
gtitatarg edt néttearevnce dade mi Yerer™’ Os Vranrdet a0
mointqo ‘<ro0y tedw wort ot exit bIsow I _flepbsw. Sil” bisa ede e
otedd untdt t*aof I” bisa of bas "give g ‘qomsya bosint ont &
i tadt tuomtacvat softed bast) at exedt Sorte! “gino To tetas
febavoa tedd satvoo TO baat pboititess todd tt ota pnb :
-~lesd boog @ bie vemtet & as ett tadt went I bad oat Sure
t'nbivow ef to ti tuods tems box tesm ‘ed nage, I oy
a atest Se
bad ed derdd hektttaet yreva «x0 tadd eeaotoath rotted? broost’
botint trode ,VE@r ,af yiet tucds tnebmoteb ont ittiw nokta Es
gntog eTow 9e80 .a%M bea od tadd ‘ffepbey ‘plot ok tent bus aloo
Jusbneteb odd tad bas ",tmemtaoyit ets st tnesghut a
“sini od tadd teemdaevat deed edt tom tf teed edt Xo. eno aaw 2
“edd st venom anfqtve ald suitévg eaw ed tadt jastete ‘potted
st bas ",emaa edd ob of etodte’ satvbhe tod. qfed ‘fabivod it Bais
,ayeb wot e ofddtw Stitntele edt of tnometsia ‘git Berek
ginemotate 0 gue ttatnseerqe Yiae ‘edt ots gatogetos ‘bis “ills
-tusbmueteb edd yd yLissoared ‘ebaat deéd svat ot prover oft
fearevot ed Sivode eagso odt tadt duet leqgs ‘to ao Bitdnée out ot
don eta ow bioset oft to nOLanisiexe Iytorso s rodta ” ato:
edt baemet Bue oarevet bas ysl ont to gethatt edt sbtae ted
Ot yrertnoe at tethrevedt taddbasomg odd snogd Labet a
nifest weight of the evidence.
tt is insisted that a number of snutractious given on the part of
llee are erroneous. They are not argued in the order in which they
re numbered. The most serious objection seems to be to instruction
8, which is first criticised by appellant. Instruction Number
sas follows; "The Court instructs the jury as to the question of
spiracy as charged in plaintiff's declaration, thet the burden of
of is upon the pleintiff, to prove by credible evidence, by the
ater weight of the testimony, that the defendant, Weddell, is guilty
harged in plaintiff's declaration of a conspiracy to defraud the
iG¢ generally, and the plaintiff in perticular, in the purchase of
stock of the United Agency; and if the jury finds from the evidence
’ he defendant Charles V. Weddell, did not enter into a epnspiracy
harged in plaintiff's declaration, then as to the charge of con-
Bey, the court instructs you that the same cannot be made a basis
recovery ag against the defendant Charles V. Weddell.
It is insisted by appellant that she did not allege in her declara-
t Weddell conspired to defraud the plaintiff in particular, and
$ contended the instruction mistates s material element of the
Tation. This is a misapprehension. Where several are charged in
Hlaration in an action of deceit as being engaged in a conspiracy
ich the deceit was a part, they are not liable merely because
he © entered into a conspiracy. Entering into s conspiracy to
| illegal act or a legal act by illegal means, is of itself a
18] offénse, but no right of action agsinst the conspirators arises
/ Some person is individualized from the public by acting to his
7 upon felse representations, made by one of the conspirators, in
prance of his object. The conspiracy is not, ss in a criminel
gist of the action of deceit. It is the means by which the
it may be held liable for the actions or knowledge of other persons.
imation of the declaration and each count thereof, discloses that
rges & conspiracy and in legal effect, is a charge to defraud the
erally and the plaintiff in particular.
yertd fe tae ar yebro oft is Berges tom ste” gout Savanna
goktsertenl ef ed oF ameoe iro Feo} do anottee Sacm ont 41 : ste
rodeott aotgesrtent -.teslfeqqa ¢d bealetti¢s textt ab doldw
Ye motteevp ont of 28 txut edd edoustant tied edt" -tenoLLo
“Ge pebrsd odd tedd ,notteatatoobd: a'ttiftoterg of. pogtano as’
eit yd ,donebive ofdibsto yd evozry! ot ,teituiale edd! eget
- yttieg et {iebbow ,fhebasts b edt: todd), YsRomTsEos: edt TO figtew,
sit peattes of YSstigames & Te notveteloes alititataly aiobeg
Ho éaadotse oct at jrslwolixeq Ht thitntele edtibas (eiieres
sagen oad oie mott able vxst edt ti bas Pyomesa petiat eit to
yoatiyenge @ ein retae ta’ bib |, ffobbe! ov eelxedd: tnebiceteb®
6 Lee" to oe eit of as med: re ee wee Bi
bet selwottrsg at ttinielg ont buexten: ef satednan ifepbew:
‘eat % taomefe [etrotem # wotetata sottosntent sat bebners
at besisio ers {steves ered .motanedertqqsaim s af gta? “90.
. “Gostiqenos 2 ht besegne gated ca tleseb: to notion ne oki nokt
heertecd yLoreit Sidell ton ove yous treq 8 BSW dleosb: edd
“ot Yost ryaroo 8 otnks gaitetnt | “ Wposrtgassoo a: OtaE botedae::
°@ SIeett to sk {sneotn — gd tos’ sali a ae edi
Ke gt
tmtte a nt ee ton wt ‘esstth qeieea'a eit .teetdo wit Roiies
witeoeb ko no ttes. oid Le |
* fen
edt xotiw yd emsem ody at #1
moereq vette te springs xo enotves edt rot efdstr yee ot
The instruction is not & peremptory one so as to bring it within
‘Tule announced in Schwartz Admx. Appellee vs. C. & & Northwestern
¢
Co. in case 7396, thas court, as contended by appellants. It conforms
te he charge as made in the declaration and each count thereof. We
) of the opinion that there is no merit in the objections to said
action number 8. It cannot be said to be misleading when considered
nection with instruction number 4, given on the part of appellant,
auction number 4 is as follows:-
See jury are instructed that if you find from the preponderance
he evidence under the instructions of the court that the defendant
e11, Conspired with others to sell the stock of the Unitea Ageney
8 of fraudulent representations; and you further find that any
x more of such conspiretors personally, or through an agent or
S, made a statement or representation which falsely represented
aneial condition of the United Ageney; ana if you further find
he evidence that such conspiretor or conspirators, knew said
mt or representation was false; and if you further find from
Hitenes that said statement or representation was made for the
of selling Unitea Agency stock; and if you further find from
ridence thet the plsintirtf learned of said statement or representa~
: md if you further fina from the evidence
an
that the pleintiff
ordinary prudent person, and relied upon such Statement or
oe in the purchase of United Ageney stock, then the plaintiff
led to recover and you should find the defendant guilty."
is next insisted by the appellant that the court erred in giving
sion No. 3, on the part of appellee. It is said that instruction
gnores the element of conspiracy. It Only requires a reading of
action to show thet ig is not subject to the criticism made of
auction Bo. 3 is ag foltlows:- "The court instructs the jury
Bieta: &n action of this kind it is essential that statements
L to the transaction should have been made; that such statements
related to a past or existing fact, and not to some future
th «i the statements should be false in a material respect; that
inst Whom the charge is msde should have known at the’
xd ot as OB Sao rotated ip vor” gk nol ont
exmbA attamio® ‘ht? pei aOnns af
“qtddiw tI gut
By petroaqa
qe Bebretnos es {tree gece aea8r ees
ay stootadi shed fase’ brs notteraloeb ea? nk eben ga: 03
¢ nf ¢irem Of BE “prodt fad? no batao <
oer odie’ iet@
. _ probdonataar 4 2% 5
wedmaliegqs
bisa of pnoitost de’ en
gnibeole tm ‘ed o¢ bree ed font
ss tedunt “pobtositent it tw ot
-ewoflot as ers rodmun 10.
rode waosretant oan eat)
‘bexebienoo nodw
Teqas to frsaq edd me neviTy |
ene
wogetq ait mort bat wey tr t
_-duabsotob oat fedd druoo ott ¢¢ anottomrtant edd Tebny ‘wom
oat Te isota ont flea ‘of ‘evenfe idiw postaea
janoftstdewetqe? trefybysaxt t
* gorreted
‘yonsal ‘potiad
eit Batt ‘odd ut HOY p18
yifenostog srotatigednes asia 6: ve
176% Xe ‘Fismededa 6 obsm
oidg 6 <oistines felons
dove ‘gadd -obnehive
as 4
“0 ‘Jireas ie dgurotad <0
“podnoastcet Ylealst ‘dotdw asotrataees
“batt seddznt soy tH bas PEs
‘erofetigqancs TO worsriganes
mort bait <antttet coy tt bas yeatst eaw no tratmesetaer ‘10%
Rotdaduoastde1 TO ‘themetsta Sise ‘faith eos
mort ‘pakt <edteut BOY “¢} brs” “loot gouega botint gutitea”
2 to ponreel atzintetq sat vant-e
edt ted? eonebive eit mout bait roddest” pogo te
‘png jwoareg tmebytg qeeukbre aa
rq ent ak pire
fogs botind
gise ne
ot tot Sina aBw
-stnozstae% Bas) ‘sxometsta 5is
“e¢ttntele
Pe tremotsda owe moqy hotter
Aeota qonega bottht to. santo’
offs poy bas” wevenes OF
“qantatsra edt neat
nett torg on oct batt pis
¥euy Taatfeqqs ett ud bobs tox tale
“gaivis at berze txuoo efit
sefteqia’ ro" grag Sit HO. eye
tbeet @ aotinper vino $f wqosriqands te tiremele” iff @
# wota ot a0
to Vie maitotstxo ‘ont of toot gon af ot desi
t ent atourtent favo ent™ ~ewotLlot ‘gs at & (0a a
ttussae ‘gt tt prix ‘gti? te mperrer
iebont mae eyed “tesa ectsieonrays vot
noltowtyant sand Siew er st"
<0 ant
acta
atnemedatu faut Ie
‘ptnenedata Sosa bade”
sautat amog o¢ “Non bua
<otam ‘2 gy ‘Setet od piesa” ‘ed
test ;foeqaet ist
’ one oved bivcda haw at
e ) the statements were made that they were false; that the pleintize
114 have relied upon the statements so that Ekeya they are the material
Reins cause which influénced her action, and that she should have
fered damage as a result."
Purthermore, it will be observed that the instruction statts out
‘saying that to sustain en action of this kina it is essential that
4
ements materisl to the transaction should have been made. “When this
truction is considered in connection With the issue formuleted in this
@ it cannot be said to be subject to the criticisms made thereto
ippellant.
It is also the contention of appellant that instruction No. 9
J
x By appellee is erroneous. It is insisted that it is bad because
Bs
Be
the jury that Weddell had a right to rely in good faith on the
ation of the assets of the Unitea Agency made by appreisers in gzood
and upon statements as to such value made by other directors or
rs of the United Ageney in good faith. On examination it will be
i that instruction No. 9 told the jury that Weddell had a right to
‘in good faith upon the various things enumerated in the instruction
far as they were shown by the evidence, provided the jury further
ved from the evidence that Weddell believed the same to be true and
i upon the same and that he acted as a reasonably prudent man."
astruction is not peremptory and it does not assume that Weddell
i good faith, nor does it invade the province of the jury in any
for the reason that the jury is referred to the evidence for its
mination, as to the good faith of Weddell. We do not think rever-
? error was committed in the giving of instruction No. 9.
llant also insists that instruction No. 2 given on the pert of
is erroneous. This instruction is ag follows: "The court
the jury that fraud is never to be presumed, but must be
oid proved by the party alleging the same. The law presumes
wis
1 men are fair and honest -~ that their dealings are in good
a Without intention to defraud others,.and if any transaction
lestion is equally capable of two constructions, one that is
+ ors 5 Cent emt tadt 08 | ednomosaze gerry pare
hae
o ered. Sivoda ova tat be .noitos xed eee ‘gohan 9 8.
es Tas a s
“tuo ators no ttowziea ods tad peyreade. od cttw ae
ee %
se oe tact
mo
“Gadi Inttnoeae ak ‘th ‘bab aids to mottos: fe state
etiie nese gaan reed aonb biwode nohosanstt out ot foteots
ald? at bods iumrot escak oat sdiw no ktoeanco at borebiance gee’ ot
ofored (3 sham awa lois ito out of foot dire Cae of Btw ug somes
Be ae Sate
Se sh sR S
¥
cong
ee a
‘ eauoood bad at tt todd betaleat at oa
edt 20 did tot boos aE yet ot dite « Fs) bast ae
Boog at axeatstqqs xd bam vonegs bod iat odd to asores, “et “to,
re “‘aoteotb <edito “e ebom eulsy dose ot as ainonosata ts]
‘od Iitw gt nobtentmexe 10 afd hot Boog at romegé potial oat a -
eh digit a bail Liepbe¥ tedt yet oid bios @ 108 eHtowrdeat ted
nottosstent edd ak poseremune agaist ano trey odd meas
rortt2 vrst edt bebtvord one Bi Te: edt a mwoxte ezow ont .
% x rf
sey extd od of emia eit parece’ Leb
as potoe od Sortt bao comes
33 eth en
en faut eouabive odd
* cosa taebetg ‘ldencaset &
| Etebpol todd omiaas fom ‘good it bas cxovguoted ha Ae, of
as at wast, edt ‘to eonivota odt ebevn at g0ob ‘tom op
cy a Grae
ptt. r0t eomehive odd of boxtotes ak east, odd todd, noes
-xov8t anitdd Pica 06 ew “ELobbeR ‘to sitist boos edd od
| 2 oF “nobtoussant 20 saivig eit ak Bosstamoo
of nottouxtank ‘tad ateient
5 > ed: 8
to tama rid XC nevis &
$x109 oat” awoL tot Bs ak ‘noiteuszon! ai,
: d at
ed taum tad bomraoxg ad ot woven ak baat ‘ad poe
“some oad anigelia yized sti x gre
ER aa Papa y
Sere deonod ba iat pas,
Ro i ed mt Se L : aS
_goitoseaatt ques ur bas. laxedto baccten od me.
pomuraet “¢ wat all
Pa
“boog “nk os agnt tees xiedé isd
ad eno vasreitosttanco. owt to
pr ond honest and the other that is dishonest, then the lew is that
e trensaction questioned is presumed to be honest and fair."
4 The part of the instruction to which the objection is argued was
consideration of this court in Alexis Stoneward Manufacturing
Lay ve. Young, 59 Ill. App. 226. The defendants third refused
struction in that cause was substantially identical with that part of
Tiitrestion criticised in the case at bar, and the court said:
je think that the third refused inetreotion should be given. It is
™ for the jury to understand that good faith of appellant's
leers would be presumed unless the contrary appeared from the evidenee."
ike instruction was under consideration in Schroeder v. Walsh, 120 Ill.
The same objection was argued there as is argued here and the
rt said that the instruction was not obnoxious to the objection made
_ Hughes v. Lockington, eel Til. 571, was a case for fraud and deceit.
fourth instruction given on the part of appellant was modified by
court and in its decision at page 575 the court said:
“Complaint is also made of the modification by the
_ court of the fourth instruction offered and given on
behalf of appellant. This instruction was to the effect
that the law presumes that sll men are fair and honest
and that their dealings are in good faith and without
intent to cheat and defraud others, and where a trens-
_ ection is called in question end is equally capable of
two constructions, one that is fair and honest and the
Other that is dishonest, the lew is that the fair and |
honest construction must prevail. The instruction
_ Was modified by the court by the addition of the words,
- “umless proven by the preponderance of the evidence |
to be otherwise." The instruction as originally
Submitted stated a correet proposition of law, and it
would not have been error for the court to have Bbiven
it as offered, but the modification did not render
it erroneous or misleeding. In other words, the
additional lenguage did not materially change the
meaning of the instruction."
&
«Other ob jections are argued to the instructions. We have considered
and taking the instructions as a series, we are unable to say that
jury were misled by the instructions given on the part of appellee.
re being no reversible error found in the instruetions end the jury
g passea upon the questions of fact and having found against the
ale basgte ‘at “netéeetdo ond doid et no tvourtent auld 20 ae
oy
BS al
ge aT _aneris | od pivoda nottorrten! beautor baht est
aw repeoulos as nottarsbtexco ‘nobus « asw Bigs, 2
6
ft oe eee
Ps ee A a
oud qd we Heuo th ibn pert to aban ‘bate at ae
-. MO Gevigcbas bevelte settouttart diver sdf te
toetts edd o¢ eaw mottouttest atdt stasileqgs To
faened bus tiat ers nem Ife tadt esmeerq wate
tuoddiw bas dtiet Seeg ni 913 agnifesb tiled? bert
gusts 2 etedw bos ,erdiddte beerted bas deere of
to eldeqss yliewps et bus nottaemp ai befIeo et
eit bye teencd bua tist at tand¢ eno fenottonrtenc
bas tist edt stadt ai wal edt ,taenora tb ak foe ys
- »- poktountant eff: afisaverg San nolttomrrtenoo
,ebtow ont to mottthhs edt yd txyoo edt yd belt.
gonehive odd ete sonstebaogerg odd yd d hevorg
gifanigitc aa nottovrvtent eff ".6 sip
ti fas :.wel to’ kottieogorg toe tr09 s bedsie’ b
revid aved o¢ dty09 ett rot torte need evad
xobpet, dom /if moitpottiipom ext
end ,ebrow teito. al -gaibseletm oO" ae
eld. eared Vid ateedea. uring cops
r
ion of appellant, we are of the opinion that the judgment of
mit Court should be affirmed which is accordingly done.
Judgement affirmed.
sono) x
a
wy By Sap tan
oe Ts oA x a
PRM E Pe ae
TAG eer”
ineas
maad gts
sla
Wass
ATE OF ILLINOIS, |...
ee DS TRICT ‘a I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
ereby certify that the foregoing is a true copy of the
eso Os
I e aid Appellate Court in the above entitled cause, of record in my office.
a, | ‘ ‘
e In Testimony Whereof, I hereunto set my hand and affix the seal Of
said Appellate Court, at Ottawa, ie de Goes day of
in the year of our Lord one thousand
nine hundred a enty-
of the Appellate Court.
= ef
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ay ead
OK Seetkrott
Tee
the fifth day of April, in
and nine ndr enty-seven,
f
esent--The Hon. THOMAS M. JETT, Presiding Justice.
Hon. NORMAN L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice.
JUSTUS L. JOHNSON, Clerk.
ani:
FLOYD S= CLARK, Sheritr. * wD, A aA
“i Z
fe :
A fe mer js G
AS gna’, ‘a wien r A
ete OD 6
May 51, 1927
BE IT REMEMBERED, that afterwards, to-wit: On/ the opinion of
the Court was filed in the Clerk's office of said
rt, in the words and figures following, to-wit:
=
wis . Ea SL ou eats ae ey ee
at ay ei ett aac iti
nt ner u ; aoe
; Anes 7,
Pc
«
5 4
al
Appeal from the
Circuit Court of
Winnebago County.
i? Appellant, S. B. Geiger, instituted a suit in the cireuit court
Eitanebaco County against the city of Rockford, appellee, to recover
54.47, claimed to be due for extra work and material furnished in
digging of two artesian wells Nos. 2 and 3, under a written contract
hich appellant was to sink four deep wells for appellee.
The contract is voluminous and includes numerous specifications.
elis were to have an inside diameter of 14 inches for a depth of
eet, and 12 inches inside diameter for a further depth of 1200 to
‘
feet into the Potsdam formation, until a depth satisfactory to the
eer was reached, but not to exceed a total depth of 1600 feet.
first or upper portion of the 14 in. section was to be provided with
@ pipe 15 inches outside diameter extending into the rock, a depth
10 feet, sealing off all surface or groand water. The specifications
am the following clause: "Geofogical strata; It is believed that
@lena and Trenton Limestone such as May be seen in the various
: ties in and around the city of Rockford, underlies the proposed sites
he wells at depths below the surface not to exeeed twenty-five (25°)
fty feet tick (50'). At the Eamerson-Brantingham Company's well,
~ the city well sites the distance to rock was twenty-two feet
through clay. It is believed thet the St. Peter sandstone will be
intered et a depth of epproximetely one hundred eighty feet (180')
r less below the surface. Below this will be found,
Mt
the following
ts of the general nature and approximate thicknesses nameé@;:
Thickness
i... Sandstone 200" to 500°!
Dieguesies
90" to 180°
adposits,
1500" or more
‘ trata are liable to varistions in thickness and structure,
Ne i cacti i
ait goxt Lseqgé
to F4vod Tisotlto
sYinwod ogsdenalw
gevooet of ,oelleqqs ,brotwdoo# to ytio ont texisgs ytnrod ogsden
bedetnuwt Ietretem bus drow stixe tot esb ed ot bemtelo Aye
at
6 bus S ,aok allow ngtestxs owt te gatggib4
toatdno9 nettizw se robacg
.selleqqs rot affew qoob toot ante o¢ asw tjusaileqqs dotd
22iio
to dtqeb s tot eedont SLI to tetemsib ebtant ne eved ot stew aller
FF
a
idaottioeqa eroremon aebulont bas avontmutoy ak fosrtnoo edt .
ot oost to diqeb tedtust s tot totemaib obtent gedont ‘Eo ba8 test :
a edd ot yrotostaties dtqeb s Litas coltamrot mebatod oat dnt Je
i teet OOSL to dtqeb Latot s besoxe oF ton tnd poroset ese
saw hebivera od ot asw nottoee mt AL odd to motttog Teqqs we teres
ages. a ,doot edt otnt guibnotxe netemstbh ebtatwo aedonk @f eqtq :
anottsoitioega ef? .tetaw bapdrg to eosttve [fs Ito guifesa — tect
_tedt bovetfed af tI :statte [so igogoed" regualo aniwolflot edt
eit at meee od Yam as dove onoteomid notnet? bre snot
P|
i
asoitsy
stie peaoqotg edt aotizebos ,brotiuoo# to ytio edt bnvote ‘bas mi 7
(a8) evit-yinewd beesxe of Jon sostime oft woled aditqeb ee |
{few atyneqnod medgattastd-noatemall odd ta .('08) spbtee roe Om
test owt-ytmewd sew Hoot ot somedalb edt gotta [Lew ytto edt |
@d ILiw onddabnse vetst .ta odt pelt povetied ef tI .yefo very
(085) tect yidgte betbhand eno qlodamixoxags to dtqebh a te betes:
gatwolfor edt ,basot od [Ltw atdt woled .costxve oft woled agel »
‘Homsn aeaagmdoidt stamixorqgs bas esuten [stenes edt to
aegonmiotd?
¥00a o¢ 1008
108L of OR”.
etom to '008L
. eeondotidd ok 21 =
variations shall be at the risk of the contractor, and said
tor shall not be entitled to any claim for extra compensation
iy variations in said stmata, or for any additional labor,
Riad or appliances which he is obliged to furnish by reason of sueh
dations or from any unforseen diffieulty encountered in the prose-~
sion of the work."
. The contract further provides that all loss or damage arising out
ne mature of the work to be done or from the action of the elements
: l any unforseen circumstances in the prosecution of the same,
on unusual obstructions or difficulties which may be encountered in
Osecution of the work shall be sustained and borne by the contractor
S$ OWn cost and expense. It further provides thet no work should
egarded as extra work unless it was ordered in writing by the con-
ig engineer and endorsed by the Superintendent of the Water De-
bent, with the agreed price for the same specified in the order, pro-
I the price was not otherwise determined by the econtrect, and that
se ms for extra work whould be mede to the city before the extra
! Started. It is declared to be the intent of the contract that
on must be done and material furnished in accordance with the
factice, and in the event of any discrepancies between the plang
cifications, or otherwise, or in the event of any doubt «s to
= of any portion of the contract, specifications or plans,
Bgincer shall define which is intended to apply to the work, and
my work or material not specified, but which might be fairly
es included in the contract, of which the engineer should be
» Shall be furnished by the contractor without extra, charge.
1ated quantities of work and material are sp Troximate and are to
i only as a basis for estimating the probable cost of the Rx work
F compsring proposals. The actual work may differ therefrom and
ig for payment shall ve the actual amount of such work done and
. furnished, and if it cannot be otherwise agreed, the engineer
all cases determine the amounts end quantities of the several
which are to be paid for under the contrect and all questions
bisa bas ,TosestsACS eit to dats edt ts oaibeaiee ne
mobtaanoqno2, exis z0h: eigto yas of beltitae ed som pints:
‘dome to poaser yd deiner of hegitde at ef doidw ‘suepitioas 10. q
edd at. boretarcone yd isot trib, meseatoins Yas mort 10. @ 2
evcok te “tis sie tart . “etzow, odd: Le
tuo) gaietzs ogame. 50, agoL. is stadt, aobive tq: salen tosxtnoo. os
laa ett: te noides edt moth; 1; snob, od, 0d» Axow. odd, Lo ots am,
,emsa edd. To motisoeaotg: eit at esonstemmoxio nesatotry Yas:
cE horetasoone, od, yam doidw eettivottiib to. anoitosttade, Lewes, mo
rd OD: edt. yd eaxod, bus: bonistane ed Lisde xxew aaa icnsnin
suidiiel grow om tedd eobivetg codduut ¢1. > -panegre, bas Fame, * st
seeo7g
« re eid
. ip totew edd he seaptnsctieckne tt edd yt beetobae sano
mebre: odd: ab hbettiosqe emse, enh rok eoitg, beers ont, —
ae goantnoo eft fo dnedmt edt: sich soennaeicell shots
esis dito eoushroses fit bodaiatwt,taivedem, Fret REDD? Ae PED
—_— edd soawd oct reionagqetogth yas te dnevs, end th, Bas,
Lraq ph we ddrob am Ko. tn07 e aed, Se -MO. oaiwsedto xo ,enokdes
gamle xo, ano ttaothioega:ohessinow: exit, To, ale
Sas row. odt..ot gigqgs, oF pebnetak et sot dw, enkheb, L Lede, soon
-¢intet ed tigi siohdw dad sehen gon, ene
tea exten trond iw, natunte edt vd sine
ot ore bre. otsmixotade ers faixeten bas, axow, 20, aaiiitaasp »
atrow six ont Ba: aa! vihiilats eit gauttemitas tot atasd 8B aS Y
anode hast 78
bus moatexedt roth ib ‘yen arow [satos oT -elsaoqortg
seontgne are ‘cores ‘eaiwzodto od tonne tt br ae
‘relation to the work and construction, and decide all questions
ative to the execution of the contract on the part of the contractore
Dastimete and findings shall be ¢@onditions precedent to the right
» the parties to arbitration or to any action on the contract, and to
y rights of the contractor to receive any money under the contract,
te first well started wes No. 3. After it was sunk about 53 feet,
+ rock wes not reached end appellsent ordered the work stopped. He
ified the city of this fact and the Suverintendent of Water Works ux
nged & meeting at which appellant, the mayor, city engineer, Mead,
gent engineer, Trestler, and the Superintendent of Water Works were
ent. At this meeting the matter was discussed; appellant refused
roceed further with the work unless he wes assured of compensation
extra work that would be required on account of bedrock not being
at a depth of from 25 to 50 feet. The Mayor threatenéd to
§ suit on appellant's bond unless the work went ahead. Appellant
‘the mayor he wes privileged to do it. Then the city engineer,
Suggested that appellant go aheed and complete the work And
+t & bill for extras, which he would Look over end meke a report as
at he regarded as an equitable adjustment. ‘The Suggestion was
rently agreed to by all parties, the meeting broke up amicably,
ppellant proceeded with the work. In well No. 3, bedrock was
MEat 95 foet cnd in well No. 2 at 68 foot. Me filed a claim for
xt: work and the engineer after examining it made a report
mending the payment of $4915.47 by the city for the extra work on
; wells. The city declined to pay the claim and appellant in-
this suit, filing a declaration containing a special count to
| the general issue was filed. He later filed the common counts with
of the sccount sued on together with an offidavit of claim. The
of gener:1 issue was filed to the common counts. During the
\ of jurors at the trial about five months later, appellant
:0 strike this plea from the files ané for judgment as by default.
i.
round that the plea was not accompanied by an sffidavit of
quired by Sec. 55 of the Practice Act. The motion was
angideassp [fe ebioeb. bas: Hettonstenoo) hae aixemieddye i x
stotogtincs edt.to-dtsq,edt,ae -tosuiaeo edt: to mobivtexze! sdts03
ddgizt edt.ot daebecetg encldibues edcLiede aguibel® tage! 8
e¢.bae ,testéinos ett so nettasgaiaced | ‘TO. no ttorthéeactdomette
~tostines odd tebas genom yas: AT ENIET: ae coteevaneieatl Yo
steot S6 tuods wane aew I retta ..8 .ol ay betista’ Lew daxth
2 @Hy shegqeda ayow.eds hetehxe has ileggs sbaackedtetes tio ane ;
3H ett tots. to, tgebusiniteqre ed? bas stost abiy te “yao cond 7
,fseM, coomigne gtic ,toysem odd ,Juekleqgs clehiw ta guttesm is
: Por axited..reds4 te.soeinetabtequa ions ‘baw. ,ralteort? « . Peonbgne 4
- gop easter tnslioqge Gbeaanselh agw toddem edd gai teom aide. ta
seiteaneqymoo to Setrase caw ed eso Gus tow edt catiw mentee :
guied tog A9onbed 2¢ Jtuseoua x¢ hetinpes ed hivey cade weow
_pt bbuetsowt royem 26h) yteek 08 of AS merk Re akt gah: te
<dmelioqgs,. -baoda, smey, axon odd meoin sued elinmiteqga 0d
qxteeniags, ytig. odd wodl wth ob at begehtiwirg: aewed to yan :
« Batigaghes om, ott efelyuoe ine baada, og tuellogqs: decid
a8 drogex,.4 expe, be cove AooL, bivor ert dotdm,.,paxtme ae
Baw: qoidneggua. edT,. «tcemtachis.eldediope: te. ee babiegets od
Bed .wideotme. gi <tond gaitees sit ..esitisq fia gs ot beoxrgi : e
_ sem. Xpoubed .& 0% Liew al: athrow odd) widiw bobeesorg om rf
rot mieto «, boLit, el » steel 88.46 S oR Lfow mi: hrs, teek, 7
«, #£0qe% @ shsm ¢}. guintmaxe teshs: teohigag, paid bi
me tzow, sitxe odd. et qdho exit poo MP. BLONgi te Seomgan said
“Hh trelleage bre siale edd coy ot RemtLoob: yt te: mes
oF Jouoe, Ietooga, & gninisinoe. woisetelooh eo gekter tas
ddiw atavoo, moomoo. edt bell? retel-al »helid. anw ousads La
(edt .»migio. to, degehitse ae atin, sedtexzods mov ‘era: damons
and appellee was granted leave to file an affidavit of merits
Fine same was filed. The cause was tried before a jury and a verdict
; returned in favor of appellee. Judgment was entered in bar and this
. followed.
We think there was no abuse of the court's discretion in refusing
strike the plea and to enter judgment as by default. (Stafford v.
lis £20 Ill. App. 22.) The motion came too lete; it shoulda have
Dinpte earlier if appellant intended to rely on it. It is urged
_the affidavit is insufficient in thet it alleged conclusions, was
frocel and did not specify the neture of the defense to be relied
"the substance of it is, that if any such labor was done or material
nished, it was furnished at appellant's own suggestion and request
7 &@ eontrsct for the digging of certain wells at an agreed price
foot, which agreed price appellee has paid in full, and that there
‘no extras contracted for by appellees The defendant need not state
evidence but only the ultimate facts which will give notice of
nature of the defense. (Firestone Tire Co. v. Ginsburg 285 Ill. 132;
leon v. Rose Hiff Cemetery 291 id. 416.) We therefore think the
lavit is sufficient.
‘Appellant is of the opinion that the slleged extra work and material
‘Outside the contrect and not specified in it, and that he can recover
t value as fixed by the evidence; but according to our view the
Wes not outside of the contract but was contemplated by it, and
ery, if any, must be had under it. The specifications @id not
it ly state the depth to which the contractor would be required to
Evench bedrock, although it is evidenct that the parties thought
mld be reached at a depth of from 25 to BO ft.; nevertheless,
ontingency of greater depth was spevifically provided for.
After the slleged extra work was finished, appellant submitted
i11 for it end the engineer made a full report giving his findings
xing the amount due appellent. Whether or not that action was the
(of the agreement reached at the conference above mentioned ig
le consequence because the express terms of the contract provide
4 .
> estimated quantities of work to be done and materials to be
at +
oid Bat) ESAS
aud bas ad st botedas asy ieee pes Pg rovst ek
av “prottede
fie yeh Aree es ho
eee Be ie ek
oved bivore oy yedal cot emso pay gy ‘ (38 Page
‘boat at tI att co “ylex ot pebaodal ielinaes ts settee 66
a8n no Lesrfonoo bogeiis “he font nt tuotoittwent at tirobitte
better ‘ed of oansteb odd to omwiten aud vttoeds gee Hryrey
ES. ae Pa ee ae
sizeten To en0b Baw neds ‘Sowa we 3 dedé ms roe te yscanjesle asia
iar reaie
taoupor ree no itesasve awe a"taalfoqge te ‘bode laws ine 4 ber
ft LAT oe so
eolta booms ne ts allow ntedre0 ‘to gataatb ould rot tositinoo
es us fet neal as Soe
ered? Sout bag Lio at Sine eed eolfeqas eolrg beozgs soidw TO
S Sees aber eae
tate tom Boon tnebueted oat eel Toage “i s 0% betosténe re {
fi, Ps eet Ge ae is Behe
- to sotvon ovia iLtw fo iatw aon? etamttin oad y fo pat porns
Gag ek ees ee aaa
sar Risa aes gurdanto ov 0D exit ‘oncdaot tt) seanoton edt to ound
. on ubint yee <a eye arabomaaiee maaip
edt anid exotetedd ev (008 +bi res protened Sx eaok 4¥.
C 4 ! Ht SSE RRA SRE
stnoto lta ai tiv:
: fi fy Pte oft deat
are? on ‘baa fxow artxe bosefts edt sand meLmtgo ‘ont to ag ‘toeLle
ie 8d ST a
evooet 1189 od tadd bas dt nt beitiooss ton ‘baa FostTn0o edt abiea
wad a Deere
edt woty 00 of galbtoovs | dud jeonebive orld ye bextt big
ieee HPSS Rees
Fe bas tt vd bedelqnoinos aaw aud soardaoo edt to ebfetwe ton
F Etenre Sok ane Seemann: SI
tox bib | anottsettivega | edt tt ‘sebas bad ed temm ie
Hye Be Paty rote Be
“ddigurods goltseg oad ‘tadt ‘Yonebive al tt rt sguost ta er rr 288
tee bee tay alte pet Bee;
yeacLedézeven jit 0 oF oe aor? to daqes s ts bedeser od
eeLomh ee et ee eae
rot bebivoxg. itsoitteocs Baw _ ddqeb Peleytnonts Pip youe
: med Sie ie € eR ey, ie De \ Pa 25
best indze tasifeqie boda inte asw dtow aioe hegelia eit
es : i, MONE Soe: BOC Dee ape
agnibalt etd. gaivis droge, Lint 8 sbhsm cooit 8 elt og
SIRES GE SS 98 tes wee play, cere
edd as¥ nottos todd tou ‘ro rontostiy panel secs ® euh trvoms od
“ J A LS SRA Sa Cast le. esa. ihe REE ey
of at bono iinom eveds, gone totno9 edt pV rorme age tnemectgs
; Lek ORS AES ee eee 3
3 $ % : edt 6
v coe test inge. oud o amzed asotcxe, lads:
ished are approximate mm only and that the basis for payment to
ientrector shall be the actual amount of work done and material fur-
oa. Where s contract requires the engineer to estimate the amount
and to fix the price and further provides that his report es
those items shall be final, his decision is conclusive on all parties
th -absenee of fraud or mistake. (Barbee v. Findlay 221 Ill. 251:
bees I. & M. Canal 5 Gil. 526; Korf v. Iwill 70 Ill. 420.) Under
) contrect in this case either party might file written objections
' decision of the engineer and submit the question to arbitration.
ee did not avail itself of this provision and is therefore
luded by the decision of the engineer, there watias no evidence of
@ or mistake.
We do not think the clause in the contract providing that the
Pactor shell bear at his own expense, all loss or damages arising
of unforseen cireumstances or some unusual obstructions encountered
12 prosecution of the work applies or was meant to apply to the
ers in dispute. On the contrary, it was foreseen that the depth
Sirock was uncertain and the contract so indicates. It specifically
ides that no work shall be considered extra work unless ordered in
ing by the consulting engineer and endorsed by the Superintendent
ater Worké with the agreed price specified in the order, unless
price was otherwise determined by the contract, still, appellee
sted on the work in question being done and was aware of the under-
ding with the contrector that he would submit a bill for such work
thet the engineer would ldok over the figures and report what he
t would be an equitable adjustment. Under the circumstances, the
lirement that the order for extra work shell be in writing was tS ae
7%
(Hart v. Carsley Manufecturing Co. 116 Ill. App. 159; Rail-
Go, v. Moran 187 Ill. 324; Stubbings Co. v. World's Columbian
ei
sition Go. 110 Ill. App. 210; City of Elgin v. Joslyn 36 ia. 20% 1 i
fe
Le se ‘of the contract relating to the shiakep ay, or eurixicee
applies to the drift above bedrock. It is evident that the
strata meant to apply only to the strate of which the
a eal
vag La £0 svtestonos ‘ed acters ehe: gh od tteda a
ae Ee BOE
ras ft ‘T8 vstbart pe eoduaf) soxietaim 70 bust to ‘8
mebnu (5082 .£IT oF fist iv ‘trex 7288 as: a “Eanad 6X
aneitostdo eatdion. elit tagim wrsy routte ‘azo app
noltésiidxe ot no Laesp ae i tad bas reentgae ‘ont +a Hele
Pes ‘etoterodt at bas no ietvors anid ‘to tieadt ‘Lista dea OO Oa
to soneb ive On ppl g exeid .zwentgne ‘edd to Yo neisioos ead yd
a.
ies ox > f 2 ; ot 5. AP ~ ys Nd & a Ast
age _soaetabo
aa ees = SOAS SO
ish add tect “gatbivera: tosxdnce ‘ond at ‘exste fo ad aan a,
atom ine @ 15S.
ee et yface of inpee com ro “asttaae “Trow pa Se notdvoegot
ak? ee a, ele ee} SEE SSR BS ks :
Loo fre ) test ‘neaeenek aes. at “ Vissineo edd m0 Sie
| ; Sat eases She aif ks oie
“aetsotbnt oa ‘fosténop edt bre cree ee eer
hao ee por} of
Bee ius Cgehae edt hi polttoere soy boetge oud it tw
oa nae fs
eeliogas fbtta toartnos ond we bontmzeten eeiwrestto. sew oolt
Pith te & Lyte ag
ee eit re sa ae atiw sa.
is (Oi. Bad Beate ee
ot dase txoqot ‘bas aomiy ft ont zove foot Bisrow pPaguarni Ay
Ceeosedamvorts ent zat “4
“pay 3 att ine nk od Liede izow eek et oh 3 nei tela
“Eis [@8f .qqa It aff 200 “pubeurt aston verazad +¥ $t6H)
& xebden£0d a"birow .¥ tod agetddte 388 Mo NE soxox -v
ob as ‘efact .¥ aig if %e “qtea. 1@LS aGek: tT OLE . a
She teat <0 abomlot dt, ond o¢ ai cae
bagi tnobive "al aa siootbed erode ere be
Sete thickness is given in figures.
ppellant insists that it was error to refuse his second offered
tion. With this we do not agree. It stated an abstract pro-
or of law anc as drawn could afford the jury no assistance. Nor
, fina any error in the modification of appellant's 10th instructione
ss llee’ gs llth given instruction told the jury thet pleintiff's
; 4, while not binding on the city, must be considered by the
to rether with all the other evidence in the case. Plaintiff's
it 4 is the report made by the engineer es to the amount he found
€ contractor on account of the extra work and material furnished.
we determined that under the contract tis report was made by
ngineer in the line of his duty as ‘specified in the contract and
it ie binding on appellee in the absence of fraud or mistake.
Beeesedicial error to give the instruction. Appellant's 4th
iustruction correctly stated the law applicable to this
to | and should heve been given.
pelliee's first siven justruetion refers to the contract as
*f's Exhibit 4, while the correct number of the exhibit is nin,
ef the fact that the engineer's report and poeonmendation was
Mt 4 the instruction was misleading and should not have been
It also assumed there had been an attempt made to change the
There ig no evidence in the record to justify this assumption
2 that reason also it was error to give it.
We think the judgment of the circuit court is not in harmony with
aw and the facts of the ease and it is accordingly reversed and
Reversed and remanded.
wv
‘3
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ee
2 ae at a tdtixe ang to ‘todmec toort00 edt efidy .& tidied at
aoe oc) -(S°UREE Gt gevig at agony
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a
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nora tosttsde a2 botats or 00oTRs ton 8 or etd? ces ae
01 _2penstateas on er out Brotts ALr00, awstd nt bug wal %
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etttitatelt nee esd at soneB ive xesiéo et tte atin ted
Bw
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sbodeturot Lottoter: bus sro" outze edd, ‘to tnucoss 80 xefoaygaee 9
FZ
xe or sa0 troget, abst tosrtzes out tebas sand. beat ‘ates
. dentine ue ok ieticevaw: as er ale %o onif ont xt veenkgce
ergtate 26 boat to ‘soneade ale atk _eelfogae 0 gatbotd et ¥
crf ud
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tes
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as toortnes act oF axoter sortouxtent nerds textt e'eoL.
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a aeod eved ton pinode baa antbaots tn aw seltowsdant edt i
ont egasty, of cham tuned a s ng need bad onedt Senwa emaze cate.
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ep.
<-
OF ILLINOIS, ae
SECOND DISTRICT iret
he said Appellate Court in the above entitled cause, of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of
said Appellate Court, at Ottawa, Ge Oe aA as of
I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
FO a ae PT AR OY ey ae
2iKT Biron? bi
p
vaitiaa
Ech AR
My NO tik
fue ey nw
Ri s
ant
\ ae ‘Prety: 5 .
fh vif ar kerstyh +
pe , . Ai iy
of our Lord/one thousand nine hundred and twenty-seven,
within and for the Seeond District of the State of Illinois:
gsent—-The Hon. THOMAS M. JETT, Presiding Justice.
7 Hon. NORMAN L. JONES, Justice.
Hon. AUGUSTUS A. PARTLOW, Justice.
JUSTUS L. JOHNSON, Clerk. | .
FLOYD S. CLARK, Sheriff.
6) A } eS
’ May 31, 1927
BE IT REMEMBERED, that afterwards, to-wit: On/the Opinion of
the Court was filed in the Clerk's office of said
in the words and figures following, to-wit:
eee
——
é
ar
30
Jd. Galbraith, Administrator
is non of the estate of Michael
man, deceased,
Appellee, Appeal from the
Cireuit Court of
Ve Peoria, County.
e Harrigan,
Appellant
This is an appesl from the circuit court of Peoria County to
a judgment overruling objections filed by Maggie Harrigan to
partial and final reports of appellee, Ernest J. Galbraith,
Bictrator de ponis non of the estate of Michael Harrigan, deceased,
approving said final report and for distribution. Appellee, as
le administrator of Peoria County, was appointed administrator de
Be non of decedent's estate in October 1918 upon the removal of
2
executor for failure to inventory assets. The right of appellee ~
rve as such administrator de bonis non was contested thromgh
7: ive appeals to the circuit court end to this court, but his
intent was held to be regular and about the middle of the year
he entered upon his duties. His firgt report and account was
d in the probate court on December 7, 1920 showing the receipt of
in funds in July of that year, out of which he paid the 1918 and
taxes against the estate and epplied $3505.83 on a elaim of
2 County for back personal taxes against the estate, leaving $500
S hands which he retained for the payment of the 1920 taxes.
) Mey 25, 1912, the county filed a claim for back taxes for the
, 1908 to 1911, both inclusive, against this estate in the sum of
053; on the back of which claim there appears the following: -
1: allowed by the Court as of the 7th class, this 25th day of Mche
1913, A.-M. Otman, Judge". Wo other entry of such allowance was
On February 7, 1924, appellee filed his finel report in the
be court showing the receipt of $3965.40 on » claim due the estate,
is
00 as the balance on hand from the former report, msking a total
=
totatiatnimbs . witistd ted :
feado il to edstee edt to non
beaso0ed 4f
edt mort Iseqqd ,eelfloeqqa
to ¢gusod ¢isorid
-ytanod ,sft0ed
tnalLeqqa
et ytawod strool to tuvoo tivotto odd mort Iseqqs ns at eid
ot negiirrsH otgasM yd boelit anotteetdo gcilurrevo tmemgbot @ w
itistdia) .l teent® ,eelleqqs to atroqget Lanit bas Letts
.beese0eb ,msgitisH TesdolM to etstae edt to nom ainod eb totsetse
es ,solfeqqA .mottudizrteth tot base droqer Isnit bise gnivorgal
66 totstieinimbs SBetntoqaqs aaw ,ytnvod sirosZ to rotstteinimbs 9
to [avomoxr edt soqy 8Lef redotoe0 at ststee a'imebeosb to nom 8
° gelfeqgs to tigit off .atesas yxotuevai of etulisi rot sotmoexe
aiggotdt betaotnoo asw nom aimed 05 totstieinimis dove as ovine
ee
a
ald gud ,drso0o eidsd o¢ Bas tives tigorto edt o¢ elesqgs svies
8
xeey edd to ofbbim odd tuods bus telwger ed ot bled aaw tuomtnd
asw dovooos bas droqer taétit ai .eettub aid soquy beretas od
Re PRT
to dqteset oft gniwode OSL .Y tedmeoed no tivo etsdorq edd at &
bus 8£@f edt bisq ed dotdw to tre ,tsey sadt to viol ot abavt ni gi
*
to mtafo s go &8.8088$ boilgqgs bus etstee edt tentsgs aexed
008% anivael ,etstae oft tantess aexst Isnoexeq Hosd rot vinwod. sf
-aoxet OS@L edt to tuemysq edt tot bemtstex od dotdw abusd
edt tot aexss aosd tot mislo « beltt ysasoo edd ,Sfel oS ysl
to mya oft of etateo atdt tanisga ,svieslont dtod LLeL oF 804
~:guiwollot eit atseqge otedt mislo dotdw to dosd eft mo 4
soli to ysb d#@S atdd ,eaalo Avy edt to es tumod edt yd bowolls
asw sonswolfe dose te yténe redto of. ."egbst Hut oa, 8.8L
eit nt troqer Lentt eid belit eeLloqgs ,bS@L ,¥ “qissrde 20
pee edt osb mislo s mo O&.8aes$ ko tqtooex ordi aaa
63.40. Out of this amount he took credit for items totelling
: 32.67, leaving a balance of °“3250.73. He asked that this balance
tributed pro rata upon certain unpaid claims including a belsnee
89.23 due on the said claim of Peoria County. Appellant and
topher Harrigan, s« brother of decedent, filed separate objections
ne reports and on the hearing, the probate court sustained an
ection of appellant to the omission of her claim for $459 and
fest and dismissed all other objections. It found there was due to
ie County $3689.23; to Maggie Harrigan $717.83 end to other
ests $148.26 and ordered distribution pro rata. Appellant
aied to the circuit court where an order was entered thet appellee
t pay the costs of administration including attorney fees; that
ext pay appellant's said claim which with interest amounted to
85 and then pay the balance of the claims pro rata.
‘The contention of appellant that the memorandum made by the
B s court on the bakk of the claim of Peoria County for back
5 did not amount to a judgment would have great weight were it
f the fact that appellant is not in a position to urge it. fhe
plea judgment of allowance of this claim has twice been before the
i Court (Harrigan v. People 305 Ill. 242; People v. Harrigan
171.) In the last mentioned case it is stated that the order
€ circuit court dismissing e certain appeal amounted to en affirma-
the order of the probate court allowing the claim of the county.
1 nt is now estopped to deny the validity of the judgment of
jance and of the interest charge. If a judgment existed, it of
se bore interest. Estoppels of record, to the extent that they
1 rties, will also bind their privies. (21 C.J. 1067.) Appellant
privy to those proceedings.
He contention that the probate court was without jurisdiction to
‘the claim for personsl taxes assessed against the deceased
s his lifetime cannot be sustained. This phase of the case was
tigated in People v. Harrigan 294 Ill. 171 and in Herrigan v.
‘Tll. 242. Whether the probate court hed jurisdiction to
aA
°! Seadoo fae 88. ¥ivé nagiviah Banaue és! Pee Yeasee yee
‘gneiteqqd” i8s8e°Ote a6 Ptddiede th hexsbad bad Ss reach
98 * BF Bedacome #adteFn? ati Horio atere-Btae reozuteneaan
mC [8 “latde ong embers Sad Yo Sole tad oad Gag "HEMT E
“ “we ind — ebamt ruinexromem otf wate pBieaprcine tit iene
— sae trodxe’ ont are Stover a eal 0nd Ba ‘
ene” shine 1G0 HOY Seetvrtd shed?! ‘pire date cei 4
ate Te yah Aves alat gale adgv edt “Ho “ingifittescorty Wadk Fy
: x og id aii dred fw pacts! sHirsbscor ‘ane
the claim for taxes and whether there was a judgment entered are
tions that cannot be raiged on this appeal. In our opinion, all
ers pertaining to the judgment of the probate court on this claim
been determined by the Supreme Court snd are res adjudicata.
ert is claimed by appellant that no credit for the taxes paid for
years 1918 end 1919 should have been allowed; that there was no
pe y in the administrator's hands belonging to the estate during
; time; that such taxes were excessive and payment was never suthor-
7 y the probate court; and that it was appellee's duty to protect.
s te egainst their payment. An administrator is regarded by
ute in matters of taxation as the legél owner and possessor of his
dent's personal property after his appointment and until the property
istributed, and is therefore personally responsible for the taxes.
ple v. Ballans, 294 Ill. 551; People v. Hibernian Bank Association,
ia. 522.) He is entitled to be reimbursed for such texes paid by
(Sec. 271, Chap. 120 Revised Statutes.) Since the title to per-
13 and right of possession vests in the personel representative,
p legally accruing thereon efter the decedent's death and before
rit ution is made, are assessed to and should be paid by the executor
iministrator, without presentetion to or allowance by the probate
; end when paid he will be entitled to credit therefor in his
’ as expense of administration. (Woerner on Administration 2nd
Btar page 691.) The money which he finslly received in 1924 and
inted for in his final report was derived from a promissory note
ring to his decedent end was e taxable asset of the estate, not-
tending it had been the subject matter of litigation for a number
seers. In view of the situation disclosed in Heinrich v. Harrigen,
iM
gj
ll. 170 we cannot say that the taxes were excessive or that the
| erred in allowing credit for their payment.
ppellant's having offered no evidence in the circuit court to
in her objection to the allowance of attorney's fees precludes
eration of the objection in this court.
ors | bezetue. taoms5st. 8 saw pred, xestase neat 2
ite totmige tio aT |
mtafo aldt ao tx009 eaties, ‘ode ra pots at go oat i
a3 seteotbytbe. ger; ete, baa Jrsr09 ometqua , ead ‘yd Aes
e On agw oxedd todd jbowolls aod ove, Asets eger. cd
|, gubust eistae edd at gntgnolod abosd a! Foteqia Letahe. wet H .
odds Teveu aBw, Sremysd | has eviaaeoxe | oxen: eexat demnstedd ‘
Joovora o¢ tab ateellogqs esw dt tedd base jtas0e etsdorg,
me xd bobragox ak tofsttelnimbs mA _,tnomyeq tied dantegs
| te Teagegeod bas tomwe. {fssof edd, ai disiniials ane at
wi
é stag sexsi pro ae ponents at of pass zene uae
Teg ot otis edt oonig (.aetutste beaivel OSf .qadd
oviteduonexaer fsnoateg oats al aleev ao tagoesog ss 3 i
bre acer, at pevieast “a Ligae, est. sot 80 Pied 3
ia tom, otetee, out to , tonne efdexe?: 8 : asw | ba, Srobsaeh ab
7 odonuscr 3 sot noifegiti£ to, redsem doetdma edt need fated 2
| ,Mogivrel -v doltmieH ot beeeloath nottentie. edt +o
_ oii, tat x0, eviggenxe exw nexad ated cel
wo years and six months without good cause shown. Appellee
his finel report within three days after he received the bulk of
the money which came into his hands. The estate was involved in
tigation for years and because of it he was not in a position during
REEL bo wake 5 final report. Under the facts in this case appellee
not chargeable with interest.
Pin his final report, appellee took credit for $77.28 as a payment
yon a claim of Sucher, McNemar & Moore. The claim was settled
thdrewn subsequent to the filing of the report snd on the hearing
Llee admitted the fact, but through an oversight the item was not
kon from the report. There is no controversy about it and the
ak would have been rec\tified hed it not been overlooked. The
3 of this appeal should not be taxed against appellee on account
uch oversight.
“3eN
: ppellee as state's skienae et Seavie County represented the county
eople v. Harrigan 305 Ill. 242, and it is charged that he acted in
ble capacity amounting to fraud. xme An exsmination of that case
‘not reveal anything justifying such charge.
1 1 other errors assigned have not been argued and are therefore
Rderea as waived. We are of the opinion that the order of the
: court should be affirmed, except as to the Sucher, McNemar &
e iten, and that item is hereby excluded from the report and the order
sted so as not to include it; and the administrator is ordered to
‘distribution in accordance with the views herein expressed.
Judgment corrected and affirmed.
nen
“eeksequa onwoste oumen. Boog: aos ba extnon, xe. sae 3 Ros
ae “poytevat as% etstae ext - » 98 bees. aie oats one, aden
: galza6. neistaeg 6 at dom ead. od. th ‘3es sasmeed. baa exsey: 0k ;
| seltogas. ease. aidg ma atoat, edt xebaers ei tenes: Lemkt: er extant | omk :
| kisbé elaton «2 co gafscosed abeqideenietaiainas elsanys
he ase Daas. B26, aioe, xox dee dood esllogus .st0ger. tent 8 £8 £
3 belttes.eaw sielo ed? .e1coM 4, xemeleh sreHlom: Kovwta toe a0
geen, add go Sas troget edd to gailit edt ot 3uempeadyan. ne bd
gtom gee, gett odt tigtarevo ne dyuordd tad ,test edtebedta Bi:
. ht bee tk. #@da Yareyeoisaes On; at Sra: 9ueqon..ous smoz® oes
96% shelcolzeve need don;t bad, heititjoos, need evad bfao
ear en eeallegas ia ee od gon, binodg. {eoqag : 2 til ts
: ee eee uae Be ein riulas ad ad Sele ego oj adeigteneve.
es out | hele. oe. aitoel to. yerrogte gs etate a8) re og
at hetos ed.ésdt begusde al ti, baa, Lindos rece Ok een eae . fn 4
Ee oSotemeton . mee odd ot ga tqeone : shows itte, ey pine
“ ebso git bos txroger. meh mort bebsloxe. ydetod, al med tas.
ot anI de ood Sg wm Lite
at Be aR eee
Webel A ee RA os
i ate a af the te ae
ois Gide fs ohio ED Oh pagel
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e
>
Sar ae
E OF ILLINOIS, }..
eo) OD DISTRICT. I, JUSTUS L. JOHNSON, Clerk of the Appellate Court, in
and for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof,
he teby certify that the foregoing is a true copy of the
— YZ
h e said Appellate Court in the aboVe entitled cause, of record in my office.
: In Testimony Whereof, I hereunto set my hand and affix the seal of
said Appellate Court, at Ottawa, this. day of
in the year of our Lord one thousand
Noirs cps Wg adage Al NY Te a
hi Sve) etaliaqg dé edt Jo drei
Atoeted} Ieo® ban ebroaast
42 ot zitte baw bawd yen jae
»
_99ifto vat nt byoost
We
oft sao bio a0 10 4h
5
att
Gen. No. 8012. Agenda 37
October Term, 1926
The People of the State of Illinois, Defendants in
Error. i
VS.
Lynn Beckham, Plaintiff in Error.
Hrror to the Cireuit Court of Champaign County
CROW, P. J.
Defendant was convicted in the Cireuit Court of
Champaign County on an indictment of two counts
charging him with selling intoxicating liquor in vio-
Intion of the Illinois Prohibition Act. On trial by jury
he was found guilty on both counts. After the motion
Yor new trial he was sentenced to confinement in the
county jail for ninety days on each count, the sen-
tenees to run consecutively. He was also fined $250)
cn each count and to pay the costs. It was further
ordered by the court, that if, at the expiration of the
jail sentence under the second count the fines and
_ costs should not be paid, that defendant should work
out the fines and costs at the rate of $1.50 per day in
ithe county workhouse until said fines and costs are
discharged. Defendant prosecutes a writ of error to
»everse the judgment, assigning twenty-six errors.
The evidence as abstracted has been read care-
_ fully. If the jury believed the uncontradicted wit-
uesses who testified for the prosecution there is no
room to doubt that defendant was guilty in manner
und form as charged in the indictment. No useful pur-
pose would be subserved by reviewing it. Seven wit-
nesses testified for the prosecution. None testified for
the defense—not even the defendant. So far as ob-
“cetions were valid the court did not err with regard
io them. Indeed it seems that defendant did not suf-
ier and was not prejudiced by any of the court’s rul-
mes. They seem eminently fair.
Me Page 1
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t > j
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t ‘ eel 2. LEER ar
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5 o - 5
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It is objected that the court did not require a
~yvritten bill of particulars. A. motion was made ask-
ing for one. The court said he had not been ruling
the state’s attorney to furnish such a bill, but directed
iim to furnish to defendant ‘‘the data that is, who the
sale was made to, and when, put it in the record here
or hand it to counsel. Can you do that by 9 o’elock
Monday morning?’’ Mr. Hodson: ‘‘I think so.’’? The
court: ‘‘All right; that answers the purpose.’’ One
ef counsel for defendant objected to going to trial
when the case was called on May 20 and made oral
statement under oath as to the bill in particulars. He
said he had not received it in writing. He was ver-
tally informed by the state’s attorney of all he could
require. It was within the discretion of the court in
this case to grant a bill of particulars. If one was re-
quired to be furnished in a proper ease, it should per-
naps be in writing. But defendant got all the infor
mation he was entitled to and the assignment of er-
vor is without merit.
It is objected that the corpus delicti was not
proved beyond a reasonable doubt. The jury heard
the evidence, saw the witnesses, and by their verdict,
under the instructions of the court, indicated in un-
mistakable fashion they believed beyond a reasonable
'oubt that defendant sold intoxicating liquor as
wiarged. The evidence of guilt is so convineing that
it is believed no one could entertain any doubt as to
‘Nis euilt. But it is urged against the verdict that
the prosecution did not establish that the stuff sold
-yas intoxicating liquor; that intoxicating liquor has
a legal definition; that the word ‘‘beverage’’ is used
in its ordinary sense, meaning liquid for drinking.
All of that is true. But a legal definition of intoxi-
«ating liquor is fixed by statute. Anyone selling any
Hquid for beverage, that is for drinking purposes,
with an alcoholic content in excess of that provided
by the General Assembly is guilty of selling intoxi-
eating liquor. It is further urged that whether a liq-
nid is fit
Page 2
for beverage purposes depends upon whether
i not it is agreeable to taste and is free from poison
cr other deleterious substances making it unsaie to
take into the human stomach, as a drink.
That contention proves too much and is therefore
:allacious. It involves a double standard. A respeci-
zxble portion of the community believes that the best
‘“tiquor’’ that ever came from a still or brew Louse
*:ust be excluded under counsel’s definition of fitness.
Another class makes no inquiry as to content of poison
and inquires only where it can be obtained. But with
the statutory definition applied if it would intox-
cate, it is of course intoxicating in fact. If it possesses
zn excess of the alcoholic content, to sell it is a vio-
‘ation of the statute. The first description may be
iestified to by anyone who has drunk intoxicating liq-
nor: the second class may be established only by
chemical analysis. From the evidence in this ease as
:¢ the manner im which defendant went aboui his
imsmess, the night time, in out-oi-the-way places, the
roung man who bought it, regardless of everything
«ise there is and ean be ro doubt in the mind of a
reasonable person that it was intoxicating and that
it Was bought and sold for that purpose. As long as
the law is unrepealed the courts have no authority to
whittle it away by construction.
Error is assigned that the state’s attorney made
anproper and prejudicial and inflammatory remarks
calculated to arouse the passion and prejudice of the
jary against the defendant. While the argument for
ine prosecution is set out in the abstract, that for
-lefendznt is not. Counsel did not observe strictly the
rales governing the arguments of causes before courts
wnd juries. The only purpose of argument is to lay
before the jury the evidence so as to show that it es-
tublishes the conclusion contended for, In
Page 3
that con-
nection the law applicable may be and is proper to be
-tated. Vituperation is not argument and is always
out of place in the trial of any sort of case. If the evi-
dence in this case left any doubt of guilt in the mind
of the reviewing court, the remarks excepted to might
result in reversal. But under the evidence no such
result could be applied without beimg hypercritical.
in view of the conclusive character of the case against
defendant, if he is hurt it is the result of his viola-
tion of the statute and for no beneficient ulterior pur-
pose.
It is said the Prohibition Act provides punish-
ment for its violation and that the sentence to work
at $1.50 per day until the fine and costs are discharged
ig unauthorized. The punishment for violation of the
act may be by fine and imprisonment. The Criminal
Code provides: ‘‘That any person convicted of petty
luxeeny or any misdemeanor punishable under the laws
vt this state, in whole or in part by fine may be re-
quired by the order of the court of record in which
the conviction is had, to work out such fine and all
costs, in the workhouse of the city, town, or country,
oy in the streets and alleys of any city or town, or on
ihe public roads in the county, under the proper per-
son in charge of such workhouse, streets, alleys or
publie roads at the rate of one dollar and fifty one-
‘vandredths dollars per day for each day’s work.’’
(fahill, Chap .38 See. 384.
This section is all the comment that is necessary
1 reply to defendant’s contention. It has been ap-
plied many times and the court did not err in apply-
iag it here. The instructions have been examined in
the light of the criticism leveled against them and
they afford no ground for reversal. Finding no re-
versable error in the record the judgement of the Cir-
cuit Court is affirmed.
Affirmed.
Page 4
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oe St Here RLY be af (ig- ond “Yee olin
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Gen. No. 8032 Agenda 18
Iva D. Kelsheimer, Appellant
vs.
Dessa Kelsheimer, Appellee
Appeal from Champaign
NIEHAUS, J.
In this case the appellant Ira D. Kelsheimer filed
a bill for divorce in the Cireuit Court of Champaign
County, charging the appellee with willful desertion
for a period of more than two years prior to the filing
of the bill of complaint.
The appellee filed an answer denying the charge;
eid thereupon the case proceeded to trial.
At the close of all the evidence adduced by the
appellant, to prove the charge made, the court direct-
ed the jury to return a verdict finding the appellee
not guilty; and the jury returned a verdict accord-
ingly; whereupon the court dismissed. the bill of com-
plaint for want of equity. This appeal is prosecuted
from the order of the court dismissing the bill; and
error is assigned on the action of the court in direct-
ing the verdict.
The evidence in the record however clearly justi-
fied the court in directing the verdict. It appears from
the evidence that while the parties lived separate
end apart nearly all the time, and for more than two
Page 1
years prior to the filing of the bill, the separations of
the parties, one from the other, was either mutually
acquiesced in by them, or was the result of quarrels
or disagreements concerning their marital relations
and their respective conjugal rights and obligations;
but the evidence does not show that the appellee will-
fully deserted the appellant as charged in the bill of
complaint .
We are of opinion therefore, that the court prop-
erly directed a verdict of not guilty, and the order
dismissing the bill is affirmed.
Affirmed .
Page 2
1) aarti Taga eth fied
Wlatinw pula’ naw Agtite
afertanpy Te thier olf aa th, Ain)
‘ettottolat faticaan gad)”
Hhiwe salle alt pit } words Hye a
Jo Mie aif al bonteindts eats tie thong
{ott Pato’ Galt Sankh ecto tons
eilitiy foie tx
“cofeta. 81h: brite
wi ei Se foe
a N
| ROE series
ae } ( )
Genera: No. 8048 Agenda 27
Maude A. Lindsey, Appellee.
VS.
John H, Lindsey, Appellant,
Appeal from City Court Canton, Fulton County.
NIEHAUS, J.
In this case an appeal is prosecuted by the appel-
lant, John H. Lindsey, from an order of the city court
or Canton, in a separate maintenance proceeding to
procure support for the appellant’s wife, Maude A.
Lindsey. pendente lite. The court’s order requires
the avpellant to pay $12.50 per week; also requires
{he apvellant to pay $50.00 solicitor’s fees and $25.00
for suit money.
It is contended on appeal that the allowance of
12.50 per week for the temporary support of appel-
lee is contrary to the facts and not warranted by the
law, and because the support of the minor child is in-
cluded in the order; also. that there is no warrant in
the law of this kind of proceeding for the allowances
made.
The bill of complaint field by the appellee charges
that her husband the appellant, has been guilty of
adultery; and that he has wilfully deserted and
abandoned her; and that she is living. separate and
apart ‘rom her husband without her fault; and that
slie is without means of support for herself and the
‘ninor child of the parties; and without money to
eroseeate her suit.
It is clear, from the averments of the bill that the
appellee is in need of money and means for her main-
tenance and support during the pendency of her suit,
and for solicitor’s fees and suit money to enable her
fo properly prosecute her suit. The statute provides
im Sec. 1 of the Act concerning separate maintenance,
{nat an allowance may be made to enable a wife to
prosecute her suit, as in suits for divorce. Chap. 68,
Sec. 22 Cahill’s Revised Statutes, Sec. 15 of the Di-
voree Avt provides, that:
Page 1
ee Reaver ae Lame - ¢ :
“seule ad aft de uses ne
‘Tn all cases of divoree. the
court may require the husband to pay to the wife or
vav iufo court for her use during the pendency of the
-uit such sum or sums of money as may enable her to
~rints in or defend the suit; and in every suit for a
sivoree the wife. when it is just and equitable, will
be eni:tled to alimony during the pendency of the
suit.’’ It is true that the appellant denies the allega-
tions of the bill of the complaint; but the merits of
the appellee’s cause of action are not a subject of
inquiry and cannot be determined on a motion or peti-
ton faz temporary alimony, soliciter’s fees, or suit
money, to enable her to prosecute her suit. Harding
v. Harding 144 Ill. 588: Cooper v. Cooper 185 Ill. .
165: Reisschneider v. Reisschneider 241 Ill. 92; Nel-
Son v Nelson 219 Ill. App. 571. The appellant con-
tends. that it was error to include the minor child of
tne parties in the provision for support of the wife.
Vechriecally there may be some ground for the appel-
taut’s contention; under the statute, however, if the
cusband abandons his wife, as alleged in the bill of
.omplaint. the wife is entitled to the custody of the
runor 2hildren unless a court of competent jurisdic-
400, "on application for that purpose, shall other-
wise «rect. Chap. 68, See. 16, Cahill’s Revised Stat-
utes; but it muts also be pointed out, that in this case
the child was left by the appellant in the eustody of
Jus ws'e. who was thereby put in position where she
had to look after the support of the child for which
ine anvellant was legally liable; and that under these
circumstanees the support of the child could only be
effeetuated through the mother; and by an allowance
+o th: mother; and it clearly appears also that the
uppellant recognized this fact by having made some
payments to the mother for that purpose. The sup-
port oy the child in this situation is necessarily bound
ap with, and has become a part of the provision to be
meade for the support of the mother during the pen-
leney cf the suit; Low vs. Low, 133 Ill. App. 613.
We are therefore of the opinion that the court did not
err in that feature of the ease. Moreover the amount
allowed for support and maintenance is not more than
shoul.} have been allowed for the support and main-
.enance of the appellee alone, taking into considera-
tion the earnings and admitted net income of the
awpel'ant, as disclosed by the record.
Page 2
es =
asl aint An) ‘il Wo a i
i) jiu alt oo cn, La) ail ok nk
; it ney Hine “F459 Taps coe if ne
valid haben hi ite Bic
A sisieh eatin ith wie meth at
heya dant sical ae 6 tid “ith
site "9 wodshite i she ue Sebi he of aff
jas 0, ec “ pres Sain ‘i
S
tow 08: ‘it ie ‘sods : fa ni t
00 ibeianel oat i
een ‘oft te oe 40% parent ‘
Aner odd aii! igeletes, ausreid tf, ari
od ” ete satintae. ott lier oe
inet Ag pees add wd polis e Aten $
giant feowbagnton hs hates % paslae sonvtittt: 7
ee
i soe asian inci ‘tell oh moins os
4 Ris sai ‘iiteo 48 te per tet it a
ie ahi ee bas eid mg ta
We find no reversible error in the order, and for
the reasons stated, the order is affirmed.
Affirmed.
Page 3
ay ats
Gen. No. 8026 Agenda No. 14
Oetober Term, 1926
W. J. Lateer, Appellee,
vs.
Jennie C. Neil, et al, Appellants.
Appeal from the Circuit Court of Shelby Countv.
SHURTLEFF, J.
This is an appeal from the order of the Cireuit
Court of Shelby County, denying appellants’ motion
to open a judgment entered in vacation in said court
upon June 1, 1926, in favor of appellee and against
appellants and asking leave to plead and to stay ex-
ecution. It appears from the transcript of the record
presented to this court that after the entry of said
judgement on August 2, 1926, appellants presented
their said motion and submitted certain affidavits in
support thereof, and that on August 13th the court
entered a final order denying said motion, granting
an appeal, and entered an order:-that a bill of excep-
tions be presented within forty-five days, but no bill
of exceptions was ever presented or approved, and
none appears in the record. There is, therefore,
nothing before this court other than the common
law record. However meritorious appellants’ defense
ruay be to the note in question, presented by the affi-
Gavits accompanying said motion, the affidavits are
uot before the court on this appeal and can only be
made a part of the record by a bill of exceptions.
In Peter Hand Brewing Co. v. Nauseda et al, 210
Ji. App. 154, it was held: ‘‘The abstract, which is the
pleading of the defendants, contains the affidavits
vead upon the hearing of the motion to open the judg-
ment. These have no place in the statutory record,
Page 1
AN
OCD whan, | ,
a cer it ait dots
rollogrb. raptind:, Gus tt
a |
“sive ity) to fou i re) I
rnin) edtode ter dar70t tide! Dm ail wort lnsupcy 7
4 A ora, rT
jist) oft to hae alt mot ‘thange ee al. wet ae
stalion ‘eigen aaa heaeity! eee 9, io
ietie prays: Sat tacit to shad a’ Aen rt sis
ty yore od fetal papley ot erwil ytebAaen bin’ adsinllot
hates " pt ts ieee oath 1aerOh ‘eons Ww avdseoe
PuH09 “ite yest ek 1: an “Stn
patter SOOO kine auiroh, vatirg:
4929 to tfid 8 tai, “oD sa We. Soiree Date
Wid at tad axab all “vio ities Dobie
ba
but belong in the bill of exceptions. As the latter doe-
winent has been stricken we are not privileged to ex-
amine or review these affidavits and consequently are
not at liberty to decide their probative force, but must
assume that the ruling of the trial judge on the mo-
tion was correct and not in the condition of the rec-
crd subject to challenge. Horn v. Neu, 63 Il. 539;
Alward v. Harper, 253 Ill. 294; People v. Board of
Review of Cook County, 263 Ill. 326.
“‘In the condition of the record before us the
jugment must be affirmed. Schwartz v. Brinks Chi-
cago City Exp. Co., 198 Ill. App. 381.’’
To the same effect is ©. R. I. & P. Ry. Co. v.
Town of Calumet 151 Ill. 515.
Finding no error in the statutory or common law
record, the judgment of the Cireuit Court of Shelby
County is affirmed.
Affirmed.
Page 2
Gen. No. 8096 Agenda No. 32
October Term, A. D. 1926
Columbia Weighine Machine Company, Appellant,
v.
Alvin, Henkel and Enno Henkel, Partners, ete.,
Appellees.
Appeal from the Cireuit Court of Montgomery County
SHURTLEFF, J.
Appellant brought its suit in assumpsit in the
Montgomery County Cireuit Court against appellees,
to recover the contract price of one Columbia mirror
weighing machine. The declaration contained a spec-
ial count and the common counts. The special count
alleged that appellees, partners, made and delivered
to appellant the instrument sued upon, as follows:
““You may ship us one Columbia Mirror Weigh-
ing Machine. It is sold to us with the understand-
ing that we may return to you at any time within
thirty days from the date of arrival of the ma-
chine, instead of paying the purchase price. Re-
turn shipment to be made to above address, by
freight. Should we not ship it back to you within
thirty days from the date of its arrival, we will
pay you the purchase price of one hundred and
fifty dollars, fifteen dollars per month until paid,
first payment to be made within forty days from
date of the arrival of the machine. Should we be
. two monthly payments in arrears at any time the
entire unpaid balance of the purchase price shall
become due, with attorneys fees amounting to 20
per cent of the sum in default.’’
Page 1
OG. Oe ahd sy
ARE ORS
dialioney Ay: deren saciiton te a
er tas go)
pe dek ements ive ;
a ooloth
v nee es eee ad. bea)
Root ogg s | Jane Pare: } Sian y.
evenfeet insisted } tte i shonin +h vart ion
“pegs (loa vil bei | cota
gausioes Synenyt iid 1a lad “st soba We
eal 1g (R meaty ht
nibhige titer OF Hoa ee
Sie: wae idayitio R “tO aie
as A fv 9 Ys olny
There was a plea of the general issue and de-
fendants gave notice in writing that they would give
in evidence on the trial that they did, within thirty
days from the date of the arrival of the machine, de-
liver the machine to the plaintiff, and that they would
further give in evidence a breach of warranty, partial
failure of consideration, that the said article did not
comply with the warranty and that said machine was-
defective, of poor material and would not weigh prop-
erly, and was not fitted to do the work for which it
was intended.
There was a trial by jury and verdict and judg-
ment for the defendants, appellees in this court, and
appellant has brought the record to this court for re-
view.
Upon the trial, appellees, without objection, of-
fered proofs tending to show that on December 20,
1924, and within thirty days after the receipt of said
machine, appellees instructed their drayman to take
the machine and reship it to appellant, and that the
machine was taken from appellees’ place of business
on December 23 or 24, 1924, and billed by the drayman
to appellant at New York, at the railway station on
January 5, 1925, and that said machine was reship-
ped, the delay being accounted for by the testimony,
tending to show that on December 20 or 21, 1924,
there was a violent sleet, wind and snow storm in
that immediate vicinity and generally in that section,
which blew down trees, limbs, poles and 'resulting
that, for a considerable time thereafter, traffic upon
the railroad and upon the streets of Nokomis, where
appellees were located in business, was effectually
blocked, and the storm is described in some of the
testimony as being wunusualy severe and practically
unheard of in that section. It was shown by some
testimony, uncontradicted, that the machine was ship-
ped as soon as it reasonably could be shipped after
the storm, Appellant objected to none of this testi-
mony but, in a spirited manner,
Page 2
énatls ‘ietbiw ih vou ‘tot tii inj at ine:
“ate: orn pear 4e, LerwPhsns std ‘is adel AY
Fyfagevay wevaly tealt (vers, vital stay 5 ttat babe
danohks ae ri ter aes
iia 1 adt siveottiath fo
s
ti, dabivien sot
3 : Pe es te Beaten ty Se
oak fi herein bat onc at
Hitt. ato sige a riachidens:
softy: dy senegiele
Haat abet is
cross-examined the wit-
nesses in an effort to minimize the effect of the storm.
Appellant and appellees tried the case and offered in-
structions, which were given to the jury, upon the
theory that the issue was whether the reshipment of
the machine was delayed by the act of God. The court
instructed the jury on the part of the plaintiff, appel-
lant:
“‘Tf the jury believe from the evidence that the
written agreement between the parties was that the
defendants were not to keep the weighing machine in
question, unless it suited them, and that they had the
privilege of returning to the plaintiff if they did not
want it, within thirty days from the date that they
received it, that then the defendants were bound to
return the machine within the thirty days, as provided
in said, agreement, unless prevented by the act of God,
or public safety or unavoidable accident, and if they
did not do so the defendants will be held to have elec-
ted to keep the machine and pay for it at the agreed
price. ’?’
Appellees’ instructions were of a similar purport.
No objection was made to any of this testimony until
the close of all the testimony when appellant moved
to exclude all of the testimony concerning the inability
to return the machine on account of the inclemency of
the weather on the ground it was not set up by spec-
ial plea. This the court denied. Appellant now con-
tends that he was taken by surprise at the introduc-
tion of this testimony and that the inability to return
the machine by reason of the act of God does not
come within the purview of the pleadings in the ease
and, therefore, appellant asks for a new trial.
In Wheeler v. C. & W. 1. R. R. Co., 267 Ill.
325, the court held: ‘‘Where both parties to a suit
submit instructions declaring the rules of law applic-
able to the facts proven and request the jury to re-
turn their verdict in accordance with those rules of
law as applied to the facts proven, neither party can
be heard to complain that such facts were not within
the scope of the allega-
Page 3
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roi ad! pea bt sit ay i recat Ue Pt ee fizh O12 eee
iyey ! , i Lepr! aentloag bi taallepgh
yi / ‘ 4 + oS g .) jeer id eaty fe
taomuyidest sf tur mv. spre] ect. Galt” wipeY
7 ae ih oat 7 fev alidy ow yinectamine hd
F ip} lt Te Pity | : oy ies rand terri
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p ui a r he ie stantitcotabs
it bad volt fad: lw sie bition 4 aman lend Paea ye
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; ; Bitsy Ay Of SULT ee RS WT ey
s : }
vodi Jer) satel ads moi? sent “rid? nidtie UT inew
4) based sow atanhawtel ed? aadd jade Ai hevionys
bivety oe azole vor? a7 widhtiw aulitinne cf wae
hoP to tos ed? yd hotrevety avefas onnieeria fide
~aalt Yi ioe tosbioos oidahtovasan vo esta rr at
i eT aa lad a4 Hy ie it tSiole gett < chip or
oe aft. in tf qoP van Bee sandsene eat nes4 ob hag
yale
rorruy antintie a To vow eagilods lent eeabiaqugi
Huw vraniies? eid lo tan ai shares tteitwntta oy
svodt Hallarqu ‘nthw yoordited edi (hi Ga minty ae
Tfitidaci af peineunros ¢anmbiead dap tetis inlicin whe ;
Yo aeere elf 96 durc0she 48 ‘alrtieher ai coppers
Ane fod tur exw 4? Seo ad wo ‘votedady
‘
une Woe hailed AU beiieb dene sl? ae a ted ta -
ishowal od? in singe vd dodat Rew oif’ inet
risiet of vittidsat. «lt ted ina rarities aide
vit fy tet) to tou 4? Fs Convair od sithonat ant Pin
cea aft e6) amusilsnnkey ashy Yor woteanieg th vidt aio
ah) wan a dal ated cts gatipegift shit
A 0 OD We. osalost Wal’ a“
lise # ot Soihey find sel" “tf
sifiete wal te eaforr 4 artigo amy Tareinar th ie
’ way, 44 taorass hina AParniy SE ‘vsuruek Lie
> etlet ase? rife setalase® Hr inde? qidt hoe
a) vita Toltiog jisveréy’ otha alt at Gethin eng
qidtiw die 4499 ian inga. haf? rinfovie pt
ae ret tte std to
A
.
:
4
:
tions of the pleadings un-
der which those facts were permitted to be proven.
(Illinois Steel Co. v. Novak, 184 Ill. 501; Illinois Cen-
tral Railroad Co. v. Latimer, 128 id. 163; Chicago &
Alton Railroad Co. v. Harrington, 193 id. 9: Donk
Bros. Coal Co. v. Stroetter, 229 id. 134.)”’
A new trial cannot be granted upon the ground
stated.
Appellant, in a motion for a new trial in the court
below, presented an affidavit made by counsel for ap-
pellant, presenting certain facts as to the weather in
December, 1924, as newly discovered evidence, which,
as stated in the affidavit, an observer of the weather
conditions would swear to upon another trial as a
witness. We have read the affidavit and it states mere-
ly cumulative proof and conclusions. ‘‘There were
no unusual conditions of weather in said county which
were superhuman or in opposition to the act of man,’’
is net the statement of a fact but a mere conclusion:
but the affidavit does state that there was a sleet
storm on December 19, 1924. Appellant cannot claim
to have been taken by surprise on the trial when he
made no objection to the testimony and joined in the
issue upon which the case was tried.
No other errors are pointed out that wonld war-
rant a reversal of the judgment and it is, therefore,
affirmed.
Affirmed.
Page 4
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af p02 slonifft :103 MT bAL slawoWh .v 00 teolR elouilit)
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ro ONCE Vee int
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i wt ‘aR eit watlord wots a Sista sion arto
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oss
General No. 8027 Agenda No. 15
October Term, A. D. 1926
Bloomington Auto Sales Company, et al, Appellees
vs.
Indemnity Company of America, a Corporation,
Appellant
Appeal from MeLean
NIEHAUS, J.
In this case the appellees, Walter Ritchie and J.
E. Wyckoff, co-partners under the name of the
Bloomington Auto Sales Company, filed a_ bill in
equity to reform an insurance policy, known as a
garage policy, which it is averred was issued to them
as owners of a garage, to insure them, and each of
them, against liability incurred by the driving of any
car by them or by their workmen and employes, in
connection with their garage business; or in conse-
quence of the driving of any automobile owned by
either one as an individual, when driven either by him-
self, or by any member of the family.
It is averred, that the policy inadvertently and
by mutual mistake contains the word ‘‘corporation’’
instead of ‘‘co-partnership’’ in connection with the
name Bloomington Auto Sales Company; and that the
name of one of the partners, who was to be insured,
namely, J. EH. Wyckoff, is not contained in the policy;
but was inadvertently omitted; also, that the so called
family rider, which was to be attached to the policy
for the purpose of insuring the individual members
of the firm and members of their families against lia-
bility, was inadvertently omitted and not attached to
the policy, by mistake. The bill prays, that the policy
of insurance in question be corrected, so that the
Bloomington Auto Sales Company insured thereby, be
described as a co-partnership instead of a corporation;
and that the correct name of one of the co-partners,
J. E. Wyckoff, be inserted therein; and that the
‘family rider’? be attached to the policy. The
Page 1
ty per hes rey ones” ORO | « :
“ny To sierra ohhovd tires efit
| an
he, sare fe ‘LOE ata 4 sete “nig
: MCE unt vault eee
nboohioe tac ait ih tenets " ealnet hod wsotgieit
Ae ay sy ep aal Sie ie
ied TINS Ge Hoty cake to Cebeitionk abit
Jorallonyn ti Ses ye inet:
be seem iiern Gascon
| KA ba eae asa
Jb Dee oti Ala b ast vty laeth gene eid it Whe
iit te tiie de owas CMR on | Roda i
mi Hid — a ‘ela ies ola said Bilasanie if
wf ooeolyiny baa anh Meee te
ae it 1) ier beashess Soy NH en ail
fiudibe «nk ‘sate tah aie pe
allor uit ot tnaifontae a hod a
ar Nth dal
fee Pedy cid
P qdosndi
sig i %) f
appellant filed an answer to the bill, denying the ma-
terial averments of the bill, and the right of the ap-
pellees to have the policy corrected and reformed.
When the cause was at issue, it was referred to the
Master to take the proofs and report the same togeth-
er with his conclusions, which was done. The Master
found that the appellees were entitled to the relief
prayed for, and the appellant filed objections to the
Master’s report, which were afterwards ordered to
stand as exceptions. Upon the hearing of the excep-
tions, by the chancellor, they were overruled, and a
decree entered granting the relief prayed for. This
appeal is prosecuted from the decree.
It is contended by the appellant as grounds for
reversal of the decree, that ‘the evidence does not dis-
close a mutual mistake; that the mistake alleged by
the complainant if it existed has been waived; that
the terms of the policy as written have been accepted
and ratified by the complainant; that the complainants
are estopped from asking the relief prayed for; and
that the complainants are barred from the relief
prayed for by negligence.’
The facts upon which the decree is based are
found in the decree, namely:
‘““That the complainants, J. E. Wyckoff and
Walter Ritchie were, during the entire year of 1921,
partners doing business under a co-partnership name
or trade name of Bloomington Auto Sales Co. That
said business known as the Bloomington Auto Sales
Co. was established in 1919 as a co-partnership, the
members thereof being Walter Ritchie and Guy Wyck-
off, and that the complainant J. E. Wyckoff became
a member of said co-partnership January 1, 1920, and
that from January 1, 1921, said partnership consisted
of Walter Ritchie and J. E. Wyckoff. That said
partnership was engaged in the automobile and garage
business in the City of Bloomington at 405 West
Washington street during all said time from its incep-
tion.
The Court doth further find that Freese & Com-
pany, Inc., was the agent of the defendant, located
in the City of Bloomington, Illinois, with full author-
ity from said defendant to sell its insurance, to solicit
business for said defendant, to collect premiums, to
investigate losses and liabilities and such general
powers as insurance agents usually and customarily
have. That said Freese & Company, Inc., did not at
any time act as agents and were not authorized to act
as agents for the complainants or any of said com-
plainants. That the predecessors of Freese & Com-
pany, Inc., who likewise represented said defendant
were the Freese Insurance Agency, and Freese, Clark
& Company.
Page 2
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pt hersokvta, alrmawreatie oa iloitye ‘fx0qar, Aitaate
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5 bas. .beltrei yo gay: would wolivarindes. tt ae au} ie
BENT tot hazeeg toilar ait aiitaerg ‘barony oote , ae
Lowel ad pork botroowang ai foe
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That most of the personnel and offi-
cers of said agency were the same from 1919 until the
date of the filing of the bill.
That April 19, 1919, the defendant, through its
duly authorized agent, Freese, Clark & Company,
issued a policy of insurance tor said business of
Bloomington Auto Sales Co. and named the insured
in said policy as Guy Wyckoff and Walter Ritchie
doing business as Bloomington Auto Sales Co. That
said “policy on insurance then issued indemnified the
insured against all liability for injuries received, all
persons in the service or employ of the assured, en-
saged in or connected with the operations of said bus-
imess, to whom compensation of any nature is paid or
allowed, ineluding loaders, material handlers, time-
keepers, salesmen, demonstrators, mechanics, washers,
chautfeurs, office force and all others, and to cover
accidents resulting from the use of any automobile by
the assured, if an individual, by a partner, if a co-part-
nership, by an executive officer, if the assured is a
corporation, and also said policy had attached to it
a rider known as a ‘‘family rider’’ whereby it was
agreed by the insurance company that the policy ex-
tended to cover the private and personal interests of
the said copartners due to the operation of any car
owned or driven by, them and their immediate fam-
ilies. That the premium for said insurance was based
upon the payroll of said business and included the
sum of $1,500.00 for each partner of said business and
$1,500.00 for each salesman, and that the premium
was based upon the estimated payroll at or about the
time of the issuance of said policy, and which estimate
was at the end of the year verified and the correct
amount of the payroll taken as the basis for the
charge of the premium, the rate being $2.10 for every
$100.00 of said payroll.
That on April 19, 1920, being the date of the
termination of the first ‘policy, a new policy was issued
by said defendant, said new policy being practically a
duplicate of the prior policy, changing the date of the
issuance and the expiration, but in its essential parts
hke the first policy, That at the time of the issuance
of said second policy, an estimate of the payroll was
again made and the premium rate charged _ being
$1.50 per $100.00 for personal injury or liability and
$.60 for property damage liability, or a total of $2.10
and that the total amount of premium upon said es-
timated payroll was $105.00. That on May 5, 1921,
an audit was made by the local agency of said payroll
and on said audit of the payroll an addition of $40.96
was made to the premium, making the total prem-
ium at said time $145.96. That on June 1, 1921, an-
other audit was made of said payroll and at the said
time there was added $115.50, making the total prem-
ium on said payroll as audited $261.46.
That upon the 19th day of March, 1921, Freese
& Company, Inc., the authorized agents of. said de-
fendant, for the purpose of again issuing insurance
covering the liability of the said business and the part-
ners thereof, prepared a Schedule of Statements, the
policy to be issued under said statement to be for
twelve calendar months beginning at noon on the 19th
day of April, 1921, and ending ‘at noon on the 19th
dav of April, 1929. That said statement was signed.
“Breese & Company, Inc., authorized agents, Bloom-
ington, Ilinois.’’ That the said agents of the de-
fendant in preparing said statement described the
assured,—‘ Bloomington Auto Sales Co.’’; the ad-
dress of the assured as ‘405 W. Washington street,
Bloomington, Tll.,’? and in answering inquiry three
of said Statement as to whether the insured is an in-
dividual, corporation, partnership, trustee, assignee or
receiver, stated that it was a corporation. That said
statement also included ite cinented pay-
age
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roll and in-
cluded therein in said estimate $1,500.00 for two offi-
cers or proprietors, $1,500.00 for one salesman, $900
for office and clerical help and $5,000.00 for all other
employes, and fixed the rate of premium at $1.50 for
personal injury and $.60 for property, damage, said
total of $2.10 being payable as premium for every
$100.00 of payroll, and that the total premium as es-
timated at $218.40. And that said premium on esti-
mated payroll was paid by said J. E. Wyckoff and
Walter Ritchie, doing business under the trade name
ot Bloomington Auto Sales Co. That i inquiry No. 10
of said Statement, and answer to said inquiry therein
contained were as follows: ‘‘No accident has been
caused by an automobile owned or driven by the as-
sured and no claim has ever been made against as-
sured as result of such an accident, except’? —‘‘ None
except known to company.’’ That there had been some
small claims adjusted by the defendant company for
said co-partnership prior thereto. Said statement fur-
ther provided that the policy was written on the basis
of an annual adjustment of the actual compensation
for such period as provided for by the policy. That
said statement was not signed by any of the com-
plainants and the facts therein stated were unknown
to the complainants.
The Court doth further find that immediately
prior to the date of said last mentioned Schedule of
Statements, Ralph Freese as representative of Freese
& Company, Inc., called upon the complainant J. EH.
Wyckoff in order to procure from him an estimated
payroll of said business for the ensuing year, so as
to incorporate the same in said statement and for the
purpose of the issuance of the new policy. That said
J. E. Wyckoff then gave to him an estimate of said
payroll and told him that there were two partners and
that $1,500.00 was to represent the services of the
said J. EK. Wyckoff, $1,500.00 to represent the ser-
vices of Walter Ritchie, $1,500.00 for one salesman,
and the balance of the payroll was estimated upon
the payroll check book. And that said J. R. Wyckoff
made inquiry of Mr. Dobbins (of Freese & Co.) as to
whether the said policy would cover and insure him
against all liability for the operation of the automo-
bile personally owned by him and that said Dobbins
then and there told him that it would cover all lia-
bility of both J. EH. Wyckoff and Walter Ritchie
while operating their own automobile or while the
same was being operated by any member of their re-
spective families, and that said representation was
relied upon by said J. E. Wyckoff. | ‘
The Court doth further find that in the making
out of the Schedule of the Statements by, said Freese
& Company, Incorporated, through the inadvertence
of the scribner, one of the members of said Freese &
Company, Inc., the assured was described as a corpor-
ation when, in fact, it should have been described as
a co- partnership, and that the policy of insurance is-
sued by the defendant in compliance with said state-
ment described the assured as Bloomington Auto Sales
Co., and further described the assured as a corpora-
tion
The Court doth further find that there was no
corporation engaged in the automobile or garage
business in the City of Bloomington at the same time
by the name of Bloomington ‘Auto Sales Co., and
that the only Bloomington. Auto Sales Co. operating
any business in the city of Bloomington was the co-
partnership business of J. E. Wyckoff and Walter
Ritchie doing business under the trade name of
Bloomington “Auto Sales Co. That the pay roll upon
which the premium was estimated was the payroll of
the co-partnership of Walter Ritchie and J. E. Wyck-
off doing business as the Bloomington Auto Sales Co.,
and that the premium was paid by said co-partnership,
and that the eqaporation eon as
age
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the Bloomington
Auto Sales Co. had no employes, no property and no
business of any kind or character at the time of the
issuance of said policy.
The Court doth further find that in the early part
of 1920, the parties interested in said co-partnership
applied for a charter for a corporation under the name
of Bloomington Auto Sales Co., and that the charter
was then issued, but that nothing further was done
in reference to turning over said business to said cor-
poration, no officers were elected of said corporation,
and that while it was the intention at some future
date to turn the business over to said corporation,
said plan was not followed at said time. That said
corporation was not functioning and did no business,
had no property, no employes, no payroll, until Jan-
uary 1, 1922. That on January 1, 1922, said co-part-
nership finally carried out their plan and transferred
the assets of said co-partnership and the business
over to the said corporation. And that from the time
of the issuance of the said charter, the early part of
1920, until January 1, 1922, said corporation was dor-
mant and had no interest of any kind whatsoever in
the business of said co-partnership, which was then
conducted under the trade name of Bloomington Auto
Sales Co.
The Court finds that the policy of insurance coun-
tersigened at Bloomington, Illinois, the 19th day of
April, 1921, issued by the defendant, being Policy No.
G-6070, and known as complainants’ ‘‘Exhibit B’’ in
this cause was through inadvertence, accident and mu-
tual mistake issued to Bloomington Auto Sales Co.,
when in fact the name of the assured should have been
and was intended to be J. E. Wyckoff and Walter
Ritchie, doing business under the trade name of
Bloomington Auto Sales Co. And that the deserip-
tion of the assured in said pelicy, paragraph three,
under the title ‘‘Schedule of Statements’’ wherein it
is stated that the assured is a corporation was by in-
advertence, accident and mutual mistake described as
a corporation in place of a co-partnership.
The Court doth also find that through inadvert-
ence, accident and mutual mistake the family rider
was not affixed or attached to said policy, though the
premium collected therefor included the risk of in-
demnifying or insuring the said J. E. Wyckoff and
Walter Ritchie against all liability arising out of any
personal injury or property loss caused to any other
person by reason of the operation of automobiles
owned by either of said co-partners. while driven by
cee of said co-partners or by members of their fam-
ilies.
The Court doth further find that the said policy
issued by the said defendant is known as a garage
policy and that during said entire period said Freese
Company, Inc., as agents for said defendant, issued
like policies to other owners of garages in the City
of Bloomington and that said indemnity against liabil-
ity of the members of the co-partnership as contained
in the family rider, was attached to the policies issued
by them during the said period to all other garage
owners which they insured and for which a like pre-
mium was collected as was collected from the co-part-
nership of the complainants, and that it was the intent
and purpose of Freese & Company, Inc., as authorized
agents of said defendant, to attach such rider upon
the policy above described. :
The Court doth further find that the errors, dis-
erepancies and omissions aforesaid were not discov-
ered by the complainants or any of them until some-
time after December 17, 1921.”’
The findings of fact in the decree are sustained by
the proofs in the cause, which clearly show that the
name of J. E. Wyckoff as a partner was inadvertently
omitted, and that
Page 5
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the failure to attach the family
rider was also the result of inadvertence and mutual
mistakes as well as the substitution of the word cor-
poration for co-partnership in the policy in connec-
tion with the firm name. It is well settled that where
parties to a contract of insurance through inadvert-
ence make a mistake in the name of the insured, or
in the description of the property insured, or where
the policies of insurance do not insure the persons or
interests intended to be insured, a court of equity may
be resorted to, to correct the mistake. German Fire
Insurance Co. v. Gueck 130 Ill. 345; Home Ins &
Banking Co. v. Myer 93 Ill. 271; Robinson v. Union
Automobile 198 NW 166; Keith v. Globe Ins. Co. 52
Til. 518; Cook v Winchester Fire Arms Co. 82 NW
315; Mercantile Ins Co. v. Jaynes 87 Il]. 199; Conti-
nental Ins. Co. v. Ruckman 127 Ill. 364; Snell v.
Atlantic Fire Ins. Co. 98 US 85. And it is no bar
to a reformation of a policy that the suit is maintained
after a loss has occurred which would fall within the
terms of the policy as reformed. German Fire Insur-
ance Co. v. Gueck supra; Mercantile Ins. Co. v.
Jaynes; supra; Snell v. Atlantic Fire Ins. Co. supra;
Equitable Safety Ins. Co. v. Hearne 22 US (L. Hd.)
398 ;Graves v. Boston Marine Ins. Co. 2 US (L.Ed.)
324; 14 R. C. L. 208.
The record does not disclose any evidence of
waiver by the appellees of their equitable right to a
correction of the policy; nor is there any evidence
which might invoke the principle of estoppel.
For the reasons stated, the decree is affirmed.
Affirmed.
Page 6
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General No. 8034 Agenda No. 39
October Term, A. D. 1926
Bessie Ervin and Tymore Feeback, Plaintiffs in Error
VS.
People of the State of Illinois, Defendants in Error.
Error to County Court Vermilion County.
NIEHAUS, J.
In this case, an information was filed in the coun-
ty court of Vermilion county under Section 11 of the
Criminal Code, charging the plaintiffs in error, Bes-
sie Ervin and Tymore Feeback, with unlawfully living
together in an open state of adultery. A plea of not
guilty was entered to the information, and thereupon
a trial was had which resulted in a verdict finding the
plaintiffs in error guilty, and they were ordered to
pay a fine of $100.00 each and costs of suit. A writ of
error 1s prosecuted from the judgment of conviction.
The principal errors assigned are in reference to
instructions given for the People. One of these in-
structions is as follows: ‘‘The court instructs the jury
as a matter of law that guilt may be shown either by
direct evidence, or by circumstances from which, ac-
cording to the usual laws of reason and common ex-
perience, guilt is clearly inferable. When these cir-
cumstances are shown the presumption of guilt dis-
places the presumption of innocence.’’ This instruc-
tion is erroneous. While it is true that guilt may be
shown by circumstances appearing in evidence which
satisfy the jury of the defendant’s guilt beyond a rea-
sonable doubt, the guilt must be inferable from the
circumstances in evidence and not from any usual
laws of reason, or from common experience; further-
more the presumption of innocence is not displaced
by such circumstances, and the presumption of guilt
does not displace the presumption of innocence when.
such circumstances are shown; but a defendant is en-
titled to the benefit of the presumption of innocence
all through the trial,
Page 1
a
until the presumption of inno-
cence is displaced by evidence of guilt which satisfies
the jury beyond a reasonable doubt that the defendant
is guilty of the offense charged. People v. Foster 288
Tl. 371. The seventh instruction given for the People
is as follows: ‘‘The court instructs the jury that the
offense of adultery is sufficiently proved by cireum-
stances which raise the presumption of cohabitation
and unlawful intimacy.’’ While this instruction is in
the language of the statute, it is nevertheless mislead-
ing in that the jury could readily infer from the in-
struction that the offense with which the plaintiffs in
error were charged was the commission of an act of
adultery; and that the proof which the statute in-
tended should be regarded as sufficient to prove an
act of adultery would be sufficient proof also of guilt
of the plaintiffs in error of the defense charged, which
was a living together in an open state of adultery;
the proof of adultery is only one of the essential ele-
ments of proof to sutsain a conviction. In the case
of Miner v. The People, 58 Ill. 58, the point under
consideration was passed upon by the Supreme Court;
and the court there said: ‘‘The crime of adultery can
not be sustained by proof of the familiarities shown
on the trial, or a single act of illicit intercourse, or a
number of acts. The language of the statute is, ‘an
open state of adultery.’ The living together must be
open and notorious, ag if the relation of husband and
wife existed. The illicit intercourse must be habit-
ual.’’ The commission of adultery alone, however im-
moral, is not sufficient to sustain a conviction for the
offense as defined by our statute; it is the open living
together by the parties, in a state of adultery, which
constitutes the offense. People v. Moreland 186 III.
App. 562.
For the errors indicated, the judgment of con-
viction is reversed and the cause remanded.
Reversed and remanded.
Page 2
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General No. 8043. Agenda No. 24
October Term, A. D. 1926
Frank E. Yeazel, Appellant.
vs.
Frank Bowman, Appellee.
Appeal from Vermillion
Niehaus, J.
In this case the appellee Frank Bowman, obtained a
judgment by confession in the Vermillion County circuit
court against the appellant Frank E. Yeazel and others;
on a $2000.00 judgment note which he held as collateral
security for the payment of indebtedness due him from
the Alvin Grain and Electric Company. The judgment
rendered was thereafter opened, and appellant was given
leave to plead his alleged defense thereto. He filed the
general issue and a special plea, setting up his defense;
but the court sustained a demurrer to the special plea
filed; thereupon appellant by leave of court withdrew
the general issue and filed an amended special plea. The
court sustained a demurrer to the amended plea; and the
appellant elected to stand by his amended special plea;
whereupon the court ordered the judgment to stand as
originally entered. An appeal is now prosecuted from
the judgment; and error is assigned on sustaining the
demurrer to appellant’s amended special plea.
It appears from the averments in the special plea,
that the Alvin Grain & Electric Company, of which the
appellant was the president and principal stock holder,
and which was in the grain and electric lighting business
at Alvin, Illinois, had become financially embarrassed
because of a large amount of outstanding indebtedness;
some of which indebtedness was in the form ‘of judgment
notes of the company, which had been signed by William .
A. Yeazel and Ellen Yeazel, the father and mother of
appellant, as sureties; also other notes signed by other
parties
Page 1
tntatation en ied of dldvr abou
oat sis nk ntonieiotin| to A
~
as sureties or accommodation makers for the
Alvin Grain & Electric Company; also an indebtedness to
the Farmers National Bank of Rossville, Illinois, which
was sescured by chattel mortgage on the grain elevator
of the company and machinery and equipment connected
therewith. The company also owed anumber of debts
which were unsecured. On April 16, 1921, the company
in order to satisfy the different secured creditors, and to
delay any attempt on the part of creditors to seek
immediate satisfaction of their claims, and so as to enable
it to continue business, made an adjustment of its
financial affairs for that purpose and a contract was
entered into in writing, which took into account the liens
and securities held by the different. creditors; the property
of the company and of the appellant; and the property of
Willaim A. and Ellen Yeazel, who were liable as
accommodation makers and sureities on notes represent-
ing the largest part of the indebtedness of the company.
This contract was entered into on April 16, 1921, by the
Alvinn Grain & Electric Company, the appellant
and William A. and KHlien Yeazel as_ parties
of the first part; certain creditors therein named,
including the appellee, were parties of the
second part; and the Commercial Trust & Savings Bank
of Danville, Illinois, as trustee, was party of the third
part. The contract referred to, sets out certain items of
indebtedness of the company, and the different persons
or corporations holding such indebtedness; and the
securities if any which they held respectively. Contract
refers to the indebtednéss held by the appellee, as
tollows:
(e) Frank Bowman 2,000.00
Signed by said Company
and Frank Yeazel
Frank Bowman 2,000.00
Signed by said Company,
Frank Yeazel, William
A. and Ellen Yeazel.
The last note bearing a
credit of $1,500.00.
This contract recites, that the first parties were indebted
to the second parties in divers amounts; and that all of
Page 2
| atk sol sredacir + sellaibeoaal 10 aoldonum Ci ty
“et eugatodohat mt ols verano ‘ohisaltr a. nied mey
dante aionillT allivecodl to seine Lanois | 4
2 toisrals airs act ip, “eadndroan fetiedy. Ww parts
sauanapra feseeaieae bas tyes bea yts
| aldo of 2,08 a bss onion .
ai ta dvgcorsentibe ena haar ‘
sie ‘as aati 8 oe fee) loka anne Me oF
whrsund alt, wusdibows snare tlih watt fel ot
to ethos wl bag, Anailonte ap iio Ty
| eee. oie te ieoa barca ak a
ade? cd tet bY, tat skin aaa
eo steel asic ae
anditny anogel tly ade bie pesca
wt bie” iaarabad sett dou hvewd
obligations were the debts of said company, and the said
appellant; and that certan portions of said debts were
secured by said William A. and Ellen Yeazel; that the
appellant was the owner of all the capital stock of the
company; and that the said first parties were desirous
that all claims and debts of the creditors be placed under
the control and management of one person to be designat-
ed as trustee; and to give security for the payment of
several amounts of indebtedness; and to arrange for
carrying on the business of the company under the super-
vision of the trustee. And it was stipulated in the con-
tract that William A. Yeazel and Ellen Yeazel, were to
execute and deliver to the trustee a trust deed for Thirty-
five thousand ($35,000.00) dollars on 3484 acres of land
which they owned in Vermillion county, for the purpose
of securing the parties of the second part who held notes
bearing the signatures of William A. and Ellen Yeazel for
the several amounts due such parties, as specified in the
agreement; and William A. and Ellen Yeazel agreed to
convey by warranty deed to the trustee, the 3484 acres
of land referred to, which deed however was not to be
recorded until the conditions mentioned in the contract
were performed; and it was also stipulated in the contract
that the trustee would endeavor to negotiate a loan on
said land or such part thereof as would be necessary, and
in an amount sufficient to purchase the chattel mortgage
held by the Farmers National Bank of Rossville; and to
raise money sufficient to operate and carry on the busi-
ness of said company; and to discharge other pressiing
indebtednesss as might be necessary to pay, upon finding
a person who was ready to loan said money, the same to
be borrowed upon the mortgage and note of said William
A. and Ellen Yeazel, as a first lien upon said land; and in
the event, that such a loan was made, the proceeds were
to be paid to the trustee; and upon receiving the money
derived from said loan, the trustee was authorized to
release said trust deed for Thirty-five thousand ($35,00.-
00) dollars, but not to discharge the indebtedness
Page 3
Prey Ts donee “alt ek
aut i atinyta aphisan ai ite
alLsirgiveb st “i Ne a art 0% ana inn
Ok
agers
wactenitey “oad in reir lion : a oe
mror tine! vedtoy Hadi’ eae % one to: wai meni ald
ae deena f teat yh Gnk ‘A ate? ve nig
wut et bo: i hie as himiventel Wabie ib 8 Sts0
‘Wek og aes ‘eh ' aus Peat pion by bone
foevuay ates ni Pscinastenis acaunl
ae
secured thereby;
and that upon the procuring of said loan, the said
warranty deed was to be recorded that the said trustee
was to acquire the chattel mortgage held by the Farmers
National Bank of Rossville; and that the said chattel
mortgage acquired was to be held by said trustee for
the benefit of the creditors of said first parties as in the
contract specified; and the appellant agreed to assign
and transfer to the trustee all the capital stock of the
company. It is further stipulated in the contract, that
the trustee be authorized and have power to borrow
money upon the real estate referred to, in addition to
the loan above specified, in an amount sufficient to carry
on the business of the company; and for the purpose of
borrowing such monies, the trustee was given power and
authority to make, execute and deliver a mortgage, deed
of trust, or other security, upon said land conveyed to the
trustee by William A. and Ellen Yeazel, or of the
company; and if deemed necessary by the said trustee,
said trustee was to take the proper steps to sell the
property of the company, or the interest owned by the
appellant, and the stock therein, for the purpose of dis-
charging any and all of said debts. It was further
stipulated that the trustee in addition to holding the
title to the property agreed to be conveyed to it, for the
purpose of securing a loan thereon, should hold said
property for the purpose of securing the payment of the
indebtedness to. George Musk, The Farmers National
Bank, Burwash Bros., S. J. Miller, Philip Cadle, J. 8.
Christman, and C. J. and C. K. Palmer, out of the prop-
erty conveyed by said William A. and Ellen Yeazel; and
by the company and by the appellant; and for the
purpose of paying the claim of the Farmers National
Bank of Rossville out of the assets transferred and con-
veyed by said company; and that the trustee is securing
said payments of said several amounts due to the last
mentioned creditors, should save and preserve for them
and each of them the respective securities against the
respective first parties that they then held; the trustee
was
Page 4
bertiyekt hevire ya
fiime> ath mated
ren bee ay >) ote fs “4 ¥ !
aight 46 adc
Sndd toenines ides Heb tt aie spa des
We rowel hla al } af sich oah
oar nearer eae ini
Rot MR it
‘pre at Sota
he @aertinag 6 chant id tile rT re penn St
as saab f
Fucienpi ne) breed te :
en iif aa en wars
ery s yy 5d st
ity, The a needa pin bene oe
i ek here Ay ie
Hel ber t ia vag
is lag! yh
ay ts: ey Fieve
Meet eat raret ian tiger iat he Be be
ir ae Eee
also authorized to operate, carry on and manage
the business of the company; and was given full power
and authority to sell the plant or property of said
company, or any part thereof, upon the best terms
obtainable, and apply the money derived from the sale
of any of the property owned by the company or the ap-
pellant, first, toward the payment of any money borrowed
or raised by said trustee to operate said business, and to
pay necessary current bills of said company; and the
balance of the money, if any, received from the sale of
said property, was to be applied upon the indebtedness
owed by the first parties to the other parties named in
the contract, in proportion to their several debts. It
was also stipulated that all the creditors mentioned in
the contract as second parties, agreed to extend the time
of payment of their respective claims for a period of
one year, and for the purpose of preventing the transfer
of said notes and for the purpose of facilitating the
collection of the same, agreed to deposit their notes with
the trustee and the trustee was to give each of the said
creditors a receipt therefor. It was also stipulated that
in case the money owing second parties mentioned in said
contract was not paid when due, or the interest payments
not paid when due, and in case the said creditors to whom
indebtedness was at that time owing was not paid when
due, under the terms of the contract, then the Trustee
should have full power and authority and was thereby
vested by all the parties of said contract,
with power and authority, after selling all of the
property coming into its hands from the said company
and the said Frank Yeazel, and after supplying the pro-
ceeds thereof in accordance with the priorities specified
in said contract, and if any balance then remain unpaid,
then to sell the land conveyed by said William A. and
Ellen Yeazel, for the payment of the balance of said
debts, and the said William A. and Ellen Yeazel should
be first given an opportunity to borrow an amount
sufficient to discharge all of said debts and if a loan could
be procured by the said William A. and Ellen
Page 5
dhw.zeeon sical sieoqah i
“Pine ot. 1@ dag, 9 avig ot aw aot a oat
Hales nigkiis oats hil bi
pons tial.
ont. td, fla: ‘yotit me a j
wis we} po ais A) set
Yeazel, for such amount, then the trustee
should re-convey said real estate above described to them
and the money derived from such loan, paid direct to said
trustee and distributed to pay off said debts to the
creditors mentioned in said contract; but in case the said
William A. and Ellen Yeazel were unable or refuse to
borrow, or otherwise raise the money necessary to
discharge said indebtedness to said trustee, after the
application of the proceeds of the sale of the property of
said company, then the trustee should proceed #6
foreclose the right of redemption of the said William
A. and Ellen Yeazel, including the allowance of solicitor’s
fee provided that the said William A. and Ellen Yeazel
should have ninety (90) days notice, after said debts
became due to raise the money necessary to discharge the
lien before foreclosure proceedings should be started.
That said trustee should have the right to employ counsel
and said trustee and attorney for said trustee, should
be paid a resaonable compensation for services rendered.
Tn case there should be other creditors who hold, notes or
securities signed by any of the first. parties to said
contract, such persons might become parties to said
contract by signing their names thereto at the place
designated for additional parties, and such persons should
be entitled to the benefits of the provisions of the
contract as against the property of such of first parties
whose names were signed to the notes, which such several
additional parties might hold, subject, however, to the
priorities created in said contract in favor of said trustee,
and subject to all other conditions and provisions in said
contract. The plea further avers, that the said W. A. and
Ellen Yeazel, in performance of their part of said
contract, executed and delivered to the Commericial
Trust and Savings Bank, of Danville, Illinois, their
promissory note of April 25, 1921, payable to the order of
said Bank, for Thirty- five Thousand ($35,000.00) Dollars,
and at the same time executed and delivered to said Bank
a trust deed for certain real estate owned by the
Page 6
wy
hs ne Hadagrs: plas anes ‘dosixouta
barwbres adele jor roidesitmna rts Sts onOmB
“Se ebdeier big ante anes ean? ed eins
pies 08 : aos met
bigu he oo silting
oil? i
BDI dec
hind tu ‘pe sony ;
Palbeenntnente | ‘out ot
in jewel im f
said W.
A. and Ellen Yeazel and described in said contract, for the
purpose of procuring of said second partis to said con-
tract as held notes bearing the signatures of said W. A.
and Ellen Yeazel. That at the time of the taking and
delivering of the said trust deed by the said W.
A. and Hilen Yeazel, W. A. and Hllen
Yeazel owned no other property except the real
real estate mentioned therein except one small lot of
household goods and farming implements, which did not
exceed in value, Four Hundred ($400.00) Dollars. That on
the 16th day of April, 1921, this defendant was the owner
of all the capital stock of said company, and that said
capital stock constituted all the property that this
defendant at that time owned except a small portion of
household goods, which did not exceed in value Three
Hundred ($300.00) Dollars. That subsequent to April 16,
1921, and prior to December 22, 1921, this defendant in
performance of his part of said contract, assigned and
transferred to said Bank, as trustee, all the capital stock
of said company for the purpose set forth in said contract.
The plea furthed avers that The Farmers National Bank
of Rossville. Illinois, gave public notice that on the 26th
day of September. 1921, the Bank would sell, at the hour
of two o’clock P. M., in accordance to the terms of said
chattel mortgage of Janurary 13, 1921, all chattels
included in said mortgage; that on the 24th day of
September, 1921 the Illinois Electric Company and the
Duncan Electric Manufacturing Company, being the
creditors of said Alvin Grain and Electric Company, but
not partes to the contract of April 16, 1921, filed in the
Circuit court of Vermillion county, Illinois, a certain bill
praying for a receiver of said company and to have an
injunction against the sale of the concrete grain elevator,
and other chattels included in said mortgage of January
13, 1921; that a temporary injunction was issued on the
26th day of September, 1921, as prayed in said bill. The
plea also avers, that on the 22nd day of December 1921,
another contract was entered into by the ap-
Page 7
add 4s a bartdera h ine ct
“o> bie ot ebay oe hi anes res
AO OW bite Fo aershmengia 6 dit auttige ‘pate
Mie Yetled add Doren i eh ita dat" Bi
ORS bisa? ork se” Byam Eo Fat
opie’ be Bares ai Py {efi reo Y. %
isat sa a cher ny tedio:.
te fai Heme ab igs: me “pisveds erin
sont bibs tint ‘atnaerotaind actisnnt by uh
md tad ctelfoU (ODOUR) hebriaHl Hind sis
asnwe df saw jdnhealhaby arly 102! TA to a
° dea he
bie tend” ben Siesanes"” ies 9 ilo0 ne)
k FY? tenths he TAOS buy Mls? ‘bod ritartoo
Lo nolo (erie n' Jae ro antic yt ine
oiinees auiae
. fis ar
Sarre “pecgabite Yay se
deel hacrm yeu ve
Asti baal
*“pawnttcion hind rei deer gapherty ali no? ‘gna
piven losnitsl exacted st outt tape ihn
bree ey aortas, old ag | eee i
indtadac oie (ker ery |
0. Waly) ES SAP He ne TEN
ad} bas qnagiot) steal wont bad Aue
Ot Tate heey ep
pellant and
the Alvin Grain & Electric Campany, as parties of the
first part; and William A. Yeazel and Ellen Yeazel, as
parties of the second part; and the Illinois Hlectric
Company, Duncan Electric Manufacturing Company and
the Rossville Electric Light Company, called electrical
creditors, as parties of the third part, and certain
creditors including the appellee, which are denominated as
secured creditors, under the contract of April 16, 1921,
as parties of the fourth part; and certain other creditors
elassified as parties of the fifth part and parties of the
sixth part and parties of the seventh part and parties of
the eightth part; and the trustee in the agreement or
contract of April 16, as party of the ninth part. This
second contract recites that all parties to this contract
were desirous of reaching an agreement and settlement
whereby the interests of all said parties might be adjust
ed without further litigation and expense; and it sets out
the various items of indebtedness, and the amounts due
and owing to the various creditors, including the so called
electrical creditors; and the amounts due the appellee;
and makes provision for settling and adjusting the claims
of the electrical creditors by mortgaging all the projerty
of the Alvin Grain & Electric Company to secure Twelve
Thousand ($12,000.00) Dollars of mortgage gold bonds
which were to be paid over to the electrical creditors in
discharge of the indebtedness held by them. It also makes
provision for the payment of the unsecured creditors
from the proceeds of the sale of the wooden elevator of
the company, and from the sale of certain corn cribs and
shelling machinery. It is also stipulated that the parties of
the seventh part, designated as unsecured creditors, agree
to accept payment of their several obligations against the
Alvin Grain & Electric Company, from the proceeds in the
hands of the trustee at the time of entering into the
contract, or thereafter coming into its possession from
the sale of the wooden grain elevator, and the Five
Hundred ($500.00) Dollars for the corn crib and shelling
machinery. It is also stipulated that all
Page 8
has esi
mis suneeeei Bina nh ao
Inoivtuala Hallan’ semeaelieh? Angi |
pinta. drts Ph tidy, ei, 1g eaitaon a
CI atop mi aly near edt ho ;
a rs ‘fh 3
1 notacral, oe i
parties to the
contract agreed to refrain from filing creditors’ bills, or
any other action against the Alvin Grain & Electric
Company, but were to abide by the settlement, compro-
mise, covenants and agreements therein and thereby
entered into, as a full, complete and just settlement of
all the several interests of all the parties thereto; and
the second contract also contains this provision: That
it is further understood and agreed by all the parties
thereto, that the agreement should not change, modify,
alter or affect the contract of April 16, 1921, except
insofar as was necessary to carry out the terms of the
contract of December 22, 1921. And that said contract
of April 16, 1921, was to remain in full force and effect
as to all provisions not directly in conflict with the con-
tract of December 22, 1921. It is also averred in the
plea, that the parties of the seventh part to said second
contract were to receive no payment from the trustee
for the several obligations which they held against the
Alvin Grain & Electric Company; and it is also averred
that the appellee, together with other creditors of the
Alvin Grain & Electric Company, after signing the con-
tract of April 16, 1921, deposited with the said trustee
named in said contract, his notes of January 6, 1920 and
of November 5th, 1920; and left said notes
with said trustee until the contract had
been fully executed. It is also averred in the plea, that
on the 16th day of December, 1922, a cerain bill to fore-
close a trust deed mentioned in the contract of April 16,
1921, was filed in the Circuit court of Vermilion County,
Illinois, to the October term, A. D. 1922: that a decree
of foreclosure was had in said cause; that according to
the provisions of said decree, the Master in Chancery of
Vermilion County, Illinois, sold the premises described
in said decree and filed his report on the 12th day of
August, 1924, showing that the premises were sold to one
Philip Cadle for Twenty-two Thousand Two Hundred
($22,200.00) Dollars, and showing that said amount was
Twenty-three Thousand One Hundred Seventy-two
Dollars and Sixty cents
Page 9
Pf, aoe a ¢
(ied: Sresiitheto waleeh POTS 4
tenets oh URTRD ORIVIA
, se ‘ le
vireo Aramelitee, Boss
f J oy itéyy@at
‘ ‘ [ gic
My Spe (At bbs 2
hey sed fib egy beg
ay } may
aoe ee ivy 210
bes Wee! VOsRs i
Paorgads bate felit
ia ae wel
FSITLaRy ay LS iv
sit f {
¢ att PRES
5. Weer 4 ”
i c
, ‘ } } sity Exe ‘ ‘ot WI
14 Hy
WKY) ke
F)
6: OF yp i
; t
: yd MCW 22
Pe ak Bees eiabar eI i (se sau ae dinadlehih mal ai
ey fehl sad (53 oat t Brew weit - ae ieee k i
decir ith Brent: gente Re Onl Verse
‘ctwoa biol Wedd \igtiw ees
ay
ante os
Finca omin ai dt bee VaRERTOY vine
: . i
Ly to “1 uv
£ ve - w?
er OfLt2h Ue /
: , ae oymor
reir Huse sith aire hadwmo@ed tS8t
; banner <2 uhuae tT pater Alt | aaRntting ia
bipa) 8 brit) (OSes
+5 ti
Ef at v5 aueis
; a “Sve OSs
if eas oD BES Ise
he domes si i hi eit) igaoan ae duae
crt a —_ se i.
a rah
ay
ary & tert} ‘Banas Tato
i
hy ACS) ah 2 Haine
Hearn). RAAT
te rab dye yen they! Rae er ait
te wy yy ped at f
($23,172.60) less than the
amount of the debt, interest and costs in said cause; that
the proceeds arising from the sale of said premises were
paid by said Master in Chancery to the Commercial Trust
and Savings Bank, as trustee, as aforesaid; that on
October 30, 1924, said trustee distributed to the secured
creditors mentioned in the contract of December 22, 1921,
the proportionate share of each of said creditors; that
the appellee received at that time, Thirteen Hundred and
Two Dollars and Thirty cents ($1302.30), the same being
his share of the sale of said premises, and on January 6,
1925, the appellee received Six Dollars and Highty-four
cents ($6.84), from said trustee, the same being the
appellee’s share of the rents and profits then in the hands
of said trustee, arising from the premises described in
said trust deed. It is also averred in said plea that the
note of April 24, 1919, sisned by this defendant and others
on which note judgment was entered in this case, is the
same note that was given by the said Alvin Grain and
Electric Company as collateral security to said note of
November 5, 1920; that the said note described in the
declaration herein was delivered to the plaintiff by the
Alvin Grain andi Electric Company, for no other considera-
tion whatsoever except as collateral security of said note
of November 5, 1920 in the princinal sum of Two
Thousand ($2600.00) Dollars; that all of said parties to
said agreement of December 22, 1921, have performed
their respective obligations as provided in said agreement;
that all the secured creditors including the plaintiff
herein, participated in the proceeds of the sale of the
property of the said William A. and Ellen Yeazel and
participated in the rents and profits arising from the sale
of such property, and nothing further remains to be done
under the agreement of December 22, 1921.
It was admitted upon the oral argument of this case,
and upon the production of the original of the contract of
December 22, 1921, in open court, that the appellee did
not sign the same; but it is insisted, that the appellee
became a party
Page 10
Pham smagt sib
: “at, A) SAE GES)
iJ
F be
r
Cyt’ asi ‘a
ty ain ft bias o
ue ont, ft Badinsael
‘ ih yet ae
z hy gD Poh
ems
i
ey, aa
to the second contract by participating
in the settlement provided for thereby of the claims of
the various creditors included within its provisions, on
the basis of the rule applicable to such cases, cited from
Corpus Juris Vol. 12, page 273, that “it is not necessary
that a composition should have been signed by a credit-
or in order to make it binding upon him and bar an action
on the orginal debt. Assent or acquiescence, as by ac-
cepting the benefits of the composition or acting under
it, is as effective as an actual signing.” And it is con-
tended by the appellant, that the two contracts referred
to, taken together, constitute a composition agreement;
and that the appellee having become a party to such
composition by participating in the benefits and settle-
ments and adjustments provided for by the second con-
tract, is bound thereby; and the composition effected,
resulted in a release of the debts compound and ex-
tinguishes them; and that consequently the creditors,
including the appellee, who are parties to the composition,
also lose their right to retain or enforce their claims
against collateral securities which they may hold.
That a compositiion agreement or the term comp-
osition, means an agreement between an embarrassed
debtor and two or more of his creditors, made for the
purpose of securing to the creditors a part or all of the
debtor’s property, or property furnished by another, and
applying it pro rata, or otherwise as agreed, in discharge
of their entire demands. Hunt, Composition at Common
Law, p. 352; R. C. L. Vol. 5, page 868; 12 Corpus Jurisp.
251. It is a necessary element however to constitute a
composition of the character referred to, that the
composition should have procured for the creditor a part
or all of his demands; and that he received such part in
discharge of his entire demands. There is nothing
in the terms of tthe first contract which
which binds the appellee to toa _ discharge or
release of his entire claim by receiving payment of the
part provided for his claim under the contract; and it is
equally clear from the averments in the plea, that the ap-
Page 11
to” Pern
aan fete ote
pellee did not receive any benefit from, or any payment
on claim under the second contract; but that the amounts
which he received, namely, $1302.30, as his share of the
proceeds of the sale of the premises, and the $6.84
received by him, were for his share of the rents of the
premises sold; and were provided for his benefit under
the first contract, or the contract of April 16, 1921.
Inasmuch as the appellee was not a party to the execution
of the second contract, nor by having participated in any
pecuniary benefits derived therefrom, he was not bound
thereby; and that the claim which he held was not to be
satisfied in full by part payment which he received under
the first contract. It is apparent, that there was no
composition of the appellee’s claim; and that the effect of
the payments received by him on the indebtedness he
held against the Alvin Grain & Electric Company was
merely to discharge to the extent of applying the
payments as a credit thereon. We conclude therefore, that
the allegations of the special plea did not show a legal
defense which barred the appellee from recovering a
judgement on the note in question, which he held as
collateral security.
For the reasons stated judgement is affirmed.
Judgement affirmed.
Page 12
xeibicw, havisase aii t +0
On eew wai Miia teen
pf / /
¢
y, f ‘ /
/ iA /
f &£
y,
General No. 8053 Agenda No. 45
October Term, A. D. 1926
Edward H. Richter, Doing Business Under the Style
and Firm Name of E. H. Richter and Sons, Appellee.
vs.
Indian Refining Company, a Corporation, Appellant.
Appeal from Sangamon
NIEHAUS, J.
In this case an appeal is prosecuted from a judg-
ment rendered in the cireuit court of Sangamon coun-
ty against the appellant, Indian Refining Company
for the sum of $8400.00. The appellee, Edward H.
Richter bases his right of recovery on the negligent
handling of gasoline by an employe of the appellant,
in pouring gasoline into a tank of appellee’s automo-
bile truck on the premises of appellee; and negligence
in handling the instrumentalities by means of which
the process of pouring the gasoline into the tank was
accomplished; that by means of such negligence the
gasoline was set on fire and several automobiles and
buildings owned by the appellee, and goods, wares
and merchandise situated therein were damaged and
destroyed. The declaration contains two counts. The
first count alleges, that the servant and employe of, the
appellant ‘then and there roughly, carelessly and vio-
lently pushed and brushed an iron or galvanized fun-
nel against a portion of a certain automobile or auto-
mobile truck of the appellee, causing the same to
throw sparks whereby in consequence of which said
gasoline then and there ignited and was set on fire.’
And the second count charges the negligence to be:
““That the defendant wholly regardless of its duties
in that behalf carelessly and negligently poured and
splashed gasoline upon, to-wit, a certain automobile
truck and certain electric wires and electric appli-
ances and equipment of said certain automobile truck
whereby and in consequence of which said negligent
and careless handling
Page 1
ee M3 ee FA
Mh ete aig , .
Ch Ow Or Ba NEF
age cet ksh . |
OAR SE TAT aban sath nian reabitot
itis setts ivf’ .
casio A aes
v} :
+ Bee YOM
Raaiesoea nt [eK isoxoi Be
. ‘goramande uso
it bai i Uh ny +
BOL ‘iain hile vallenbanis a
bia Homatant isda ation Donal vibes
hak 1) Sh
tear satahtiee Hey, bee:
edit Shitoet ton siete hd *
ab oinine (aecigarno
Vedas: at balay ee ieasiee ispRRMHOS sTEs
past cork aot bans at) PO MTRAL:
poitaehy Bi Fi oR BS sca lsu
Crea terect i
ehiora his
ETS date es
Heagpeb oak ious adn
of said gasoline, the said
defendant, by its certain servant, caused a fire in and
about said certain automobile truck. ’’
The fire in question occurred on the 5th day of
July, 1922, in the afternoon of that day, when Mr. Car-
roll who was employed by tke appellant for that pur-
pose, came to the premises of the appellee on the cor-
ner of 6th and Reynolds streets in the city of Spring-
field, to re-fill the gasoline tanks in the several auto-
mobiles and automoble truck of the appellee. Fdward
G. Richter, who is the son of the appellee, and who
was present when the fire occurred, testified with ref-
erence thereto, as follows: ‘‘I had known Mr. Carroll
about one year and a half. He was delivering gaso-
line for the Indian Refining Company. He was deliv-
ering at the rear of the garage there-—trucks and cars
standing there. He had been coming to my father’s
place of business during that time. On the Sth day
of July, 1922, he came there about 3:30 p. m. to fill
the trucks with gasoline—see what they needed. I
was in the market when he first arrived. I did not
talk with him on that occasion—had seen no one talk
to him. After he got there, he drove in and filled
the Dodge truck that was setting there in the yard
with ten gallons of gasoline. He drove in with the
auto truck with a tank on it of gasoline—a tank truck,
Indian Refining Company. The first truck was set-
ting out in the yard—a Dodge truck. It was used in
connection with the meat business. It was my fath-
er’s truck. After that he went to the garage and put
ten gallons in my ear setting in the garage. J had
a Stevens touring car. Then he starts to fill the little
truck, setting in the middle of the garage—the Repub-
lic. That is where the fire started. It was setting
there in the center of the garagie; my car set or the
north and another truck sitting on the south—this
little truck in the middle setting kind of close to my
ear. Mr. Carroll started to go through and I told
him, ‘dad, don’t go through there, I will back the
truck out for you. ’ He said, ‘no, I will get to it.’ I
was standing at the back of the corner of the truck.
With that he walks around
Page 2
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the left hand side of the
truck, steps up on the truck there. I told him to be
eareful, he would slip and hurt himself. With that he
raised the five gallons of gasoline up over the seat
and started pouring. The gasoline went all over the
seat, and in a minute I heard a horn blowing and a
fire started, just like that. I was about six—eight feet
away when I cautioned him about climbing up there.
He was to the west of me and I was back of him. I
was to the rear of the truck. I saw the gasoline splash
and run, It splashed all around the side of it—around
the sides—all over the floor boards, around in there—
you could see it splash around there. When the fire
started he was pouring the gasoline into the truck.
He slipped. He got up on the running board and
started lifting the gasoline over the _ steering
wheel. As he did his foot slipped and the bucket of
gasoline fell into the seat—fell down there and the
gasoline spilled all over. As the bucket fell in the
seat we could hear the toot of the horn. The seat was
turned back. The gasoline can fell right down into
the seat, across the battery.’’ He also testified, that
the battery in the truck in question was a storage
battery used to start the car and electric lights, and
for the use of the horn, a regular automobile battery;
and that the battery was fully charged with electricity.
He further testified that ‘‘the horn button on this
truck was alongside the seat board on the left side
sitting in the seat. The horn button was a round black
button—a regular button that you see on regular
horns on automobiles—ordinary type of horn button.
These horn buttons are not water tight because they
have to work back and forth when you push them in
that causes the contact, as I understand, for the horn
to blow. They are not water tight—gasoline tight. ’’
J. F. Maddox who is an automobile mechanic of fif-
teen years experience, testified as an expert having
special knowledge of electric batteries and electric
wiring, electric horn buttons and horns and electric
equipment generally on automobiles and automobile
trucks, and the emission of sparks in the operation of
electric horns and horn buttons, and that he was ac-
quainted with
Page 3
the Republic automobile truck in ques-
tion, He testified that the ordinary horn button on a
Republic truck throws a spark when it is operated;
that it throws a spark every time a contact is made
and broken, that is to say, every time the horn is
blown; and that the spark thrown by the operation
of the horn button would ignite gasoline. He also
testified, that in case a connection was formulated be-
tween the two posts of the battery, together with any
metal substance, as a gasoline ean, falling on a bat-
tery and striking the posts of a battery, it would be
likely to cause gasoline to ignite. W. L. Chapin, who
testified that he had taken a course of electrical en-
gineering in the University of Llinois and made a
study and experimented with electrical equipment of
automobiles and automobile trucks, and in reference
to batteries and horn buttons and electric wires, and
was familiar with the character of batteries and horn
buttons and electrical equipment on the Republic
truck. He testified as an expert, that the horn button
would throw a spark whenever it was operated, that
is to say, every time it was touched, also that if gaso-
line was poured on the horn button it could get in
the horn button, and that the ignition power of the
spark thrown was sufficent to ignite gasoline. Frank
Offer was called as a witness for the appellee, and
testified, that he was in the automobile business and
familiar with Republic trucks, and with the truck
owned by the appellee; that the truck of the appellee
“‘had a horn button which was on the left hand side,
inside the seat riser—against the seat riser.’’
That ‘‘it is a button that fastens on and about the
size of a quarter. There was nothing about the con-
struction of the horn button to guard it against any
liquid running through and getting on the contacts
and wires of the horn button.’’? As a witness for the
defense, the appellant called Thomas C. Carroll, its
employe, who did the refilling of the gasoline tanks
on the automobiles in question. He testified with ref-
erence to the occurence in question: ‘‘I put the funnel
in the gasoline tank and took five gallons of gasoline
and I set it down in the seat. **** After
Page 4
I placed
the funnel in the gasoline tank I set five gallons of
gasoline upon the seat. The gasoline was in a five
gallon measure, in a five gallon bucket. I set the can
on a kind of a board or slat piece there. *** Then I
reached over and got a hold of the funnel with my
left hand. The funnel was in the gas tank at that
time and I raised it up and got the point of the bucket
before I started to pour in; when the gas went into
the funnel it went to the ceiling. Q. What do you
mean by it went to the ceiling, A. Flame,—ignited; I
threw everything away and got out of there. The gas
was in the funnel when it shot up. *** I didn’t hear
no explosion. *** The flame shot up just as I started
to pour. The gasoline was probably still in the funnel,
I don’t know; that is a little too close for me to figure
on. At or before this time I testified the flame shot
up, I did not spill any gasoline on any wires or on
any part of this Republic truck. Before this flame
shot up I did not spill any gasoline on the batteries
or the electrical equipment of the truck. At no time
before the flame shot up did I slip or fall. After the
flame shot up, I dropped the can. ”’
Carroll and Richter were the only eye witnesses
to the occurrence; and considering the reasonable and
just inferences which the jury would be warranted in
drawing from the testimony of these witnesses, this
court would not be justified in holding that the ver-
dict rendered in this case was manifestly against the
weight of the evidence; especially since a determina-
tion of this question, to some extent at least. involves
the respective credibility of the witnesses, which was
a matter for the determination of the jury.
The record does not disclose any substantial error
in the admission or rejection of evidence. It is con-
tended by the appellant that the court erred in ad-
mitting the testimony of the expert witnesses in ref-
erence to the effect which a contact with the electrical
horn button would have to cause sparks and ignition
Page 5
of gasoline. We are of opinion, that this expert testi-
mony was competent; especially in view of the evi-
dence, that while Carroll was going through the pro-
cess of refilling the tank of the truck in question, and
just before the blaze which started the fire, that the
horn was blown. Expert testimony is competent as
to matters which do not lie within the range of com-
mon knowledge and experience. Elgin, Joliet & East-
ern Ry. Co. v. Myers 129 Ill. App. 12; Byer v. Peoria
B. & ©. Traction Co. 156 Ill. App. 47. Traders Ins.
Co. v. Catlin 163 Ill. 256; German American Ins. Co.
v. Steiger 109 Ill. 256; Mahistedt v. Ideal Lighting:
Co. 271 Ill. 154.
It is assigned as error, that the court refused an
instruction at the close of the evidence, directing the
jury to find a separate verdict of not guilty under the
first count, because of the insufficiency of the evidence
to sustain the charge of negligence contained in that
count. The question of the sufficiency of evidence to
prove any of the issues involved in the trial of a case,
is for the jury to determine. And we are of the opin-
ion therefore, that the court did not err in refusing to
instruct the jury that the evidence was insufficient to
support the charge of the negligence contained in
the first count.
It is also contended, that the coutr erred in thie
viving of the first and third instructions for the ap-
pellee. The first instruction is as follows:
The Court instructs the jury that in determining
whether or not the defendant was guilty of negligence
in this case, you should consider what a reasonable
prudent man would have done under the like or sim-
ilar circumstances, in the handling of gasoline or
other inflammable materials; and if you believe from
a preponderance of the evidence that the defendant,
by its servant, failed to exercise that degree of care
as would have been exercised under like or similar
circumstances by a reasonable prudent man, and that
such failure, if any, on the part of the defendant’s ser-
vant to exercise such degree of care was the proximate
cause of the fire which destroyed plaintiff’s property,
then and in that case you should find the defendant
guilty of negligence.
It is contended by the appellant that the negli-
gence referred to is not limited to the negligence
charged in the declaration. It is true, that the in-
struction does not in express terms refer
Page 6
Bie
to the negli-
gence charged in the declaration; but the purport of
the instruction is such that the jury could not have
been misled into thinking, that the definition of negli-
gence had reference to any other negligence than that
charged in the declaration. The charge of negligence
in the second count of the declaration is, that the
appellant carelessly handled the gasoline and oils in
delivering them to the appellee, and it thereby caused
the fire. It is sufficient to say, concerning appellant’s
contention, that if there is error in this instruction the
same error is contained in the third instruction given
for the appellant; and that therefore the appellant is
not in position to raise any question about it on ap:
peal. In our opinion the third instruction complained
of by appellant, is not subject to the criticism of the
appellant concerning its purport and effect; nor do
we find any error in the refusal of instructions reques-
ted by the appellant.
It is also contended, that the trial court erred in
its refusal to grant a new trial on account of certain
newly discovered evidence. The newly discovered
evidence is set forth in an affidavit made by one F.
J. Scott, an employe, who had been working for the
appellant as a traveling salesman for about eight years
prior to the time of the making of the affidavit. He
states in the affidavit, that on or about July 6, 1922,
he was doing special work for the appellant in Spring-
field; the day mentioned being the day after the Rich-
ter fire; that he had an interview with Edward G.
Richter, one of appellee’s witnesses, while the build-
ings, which were destroyed, were still smouldering;
that in this interview he asked Richter how the fire
happened, whereupon Richter, in answer to his ques-
tion said this: ‘‘Why your man spilled some gas while
he was filling the Stevens car, and I, or some of us,
threw a match in the spilled gas. I walked over, to a
truck with the Indian Refining man to fill it, looked
up, and the place was in a blaze.’’ He further states,
that he did not communicate what Richter had said
to him, to the appellant until over four years
Page 7
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had elapsed,
when he happened to hear about the verdict which had
been returned in this case; and he then immediately
reported this evidence to the district manager of the
company at Lawrenceville, Illinois, who communi-
cated it to one of the attorneys for the appellant. The
reason given by the affiant for not letting the appel-
lant know about what he had learned about the cause
of the fire sooner, is that he had not been employed
in and around Springfield since the time he had ob-
tained the information; and that he knew nothing
about the pendency of this suit; and had known noth-
ing about the setting of the case for trial; either the
first or the second trial. It is sufficient to point out
concerning this affidavit, that it discloses a remark-
able lack of diligence on the part of the appellant em-
ploye, who was apparently investigating the cause of
the Richter fire, in the origin of which his employer
was involved, to communicate the information which
he says he obtained, to his employer; and the affidavit
also shows a lack of diligence on the part of the em-
ployer, to find out from the employe, what knowledge
he had about the case. Aside from the lack of dili-
gence which appears on the face of the affidavit, it is
obvious that the evidence referred to pertains only to
matters which could be used in an effort to contradict
or impeach one of the appellee’s witnesses; and it is
well settled that where newly discovered evidence is
not conclusive in its character, but is merely cumula-
tive or contradictory of other evidence; or in its na-
ture impeaching, it affords no ground for granting a
new trial. Springer v. Schultz 105 Ill. App. 544;
Knickerbocker Ins. Co. v. Gould 80 Ill. 388; Tobin
v. People 101 Ill. 121; Kendall v. Limberg 69 Ill.
355; City of Paris v. Morrell 52 Ill. App. 121.
For the reasons stated, the judgment is affirmed.
Affirmed.
Page 8
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General No. 8058 Agenda No. 33
October Term, A. D. 1926
Mary A. Bergman, et al, Appellees.
vs.
Sarah J. Rhodes, et al, Appellants
Appeal from Macoupin,
NIEHAUS, J.
In this ease the appellees, Mary A. Bergman as
an individual, and as trustee under the will of Henry
Bravford, deceased; and Theresa M, Pratt and Vir-
ginia H}. Durston, filed a bill in equity in the circuit
court of Macoupin county, making Sarah J. Rhodes
the appellant and her husband, Frank Rhodes, parties
defendant. The bill avers the death of Henry Bray-
ford, who died testate December 2, 1901, and the pro-
bate of his last will and testament, which disposes
of certain real estate, including 652 acres of land, sit-
uated in Polk township; also 80 acres in Carlinville
township, all in Macoupin county, and a farm approxi-
mately 93 acres in Madison county, and a residence
‘lot in the city of Carlinville. The bill avers, that he
left surviving him Mary A. Brayford his widow, who
was also deceased at the time of the filing of the bill,
and four children, namely, the appellant Sarah J.
Rhodes and the appellees Mary A. Bergman, Theresa
M. Pratt and Virginia E. Durston, who were his only
heirs at law; and were also devisees under the will.
The bill was filed for the purpose of carrying into ef-
fect the following provision of the will:
“‘T direct that at the death of my wife, Mary A.
Brayford, or as soon thereafter as practicable, the
surviving trustees, acting under this will, shall sell
and convey by good and sufficient deeds all the said
remainder residue of my estate in such manner and
on such terms as they may deem best, and shall divide
the net proceeds of said sale equally among my said
daughters. In the event of the death of any of my
said daughters before the distribution of said pro-
ceeds of said sale, leaving bodily descendants, then I
direct that the share of such deceased daughter be
divided equally among her said bodily descendants.’
And the prayer of the bill is for an order and
decree for the sale and distribution of the property by
the surviving trustees under
Page 1
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the will as therein directed.
Summons was issued and served on the defendants in
the bill; and they appeared in court at the June term
following and thereupon joined with the complainants
in the bill in asking leave of court to amend the orig-
inal bill by making all the parties thereto, parties
complainant, and changing the purpose and the pray-
er of the original bill. The amended bill which was
thereafter filed by leave of court avers, that all the
complainants are of opinion, that a sale of the real
estate involved as provided for in the last will and
testament of Henry Brayford, deceased, for their
benefit, would result in a sacrifice of their respective
interests, because the prices of all farm lands were low
and the market for the same poor; and that these
lands if sold by the trustees at that time would not
realize a price actually representing their value; that
because of these unsatisfactory conditions, they would
sustain a loss if the real estate were sold at public
auction; and that they had therefore decided to exer-
cise their right of election, and that each, one had elec-
ted to take her one fourth share of the real estate in
land instead of money; and they waived a right to the
sale by the trustees and had agreed that this proceed-
ing might be treated as a _ partition proceed-
ing for that purpose, so that the share of each of
them in the proceeds of a sale might be set off to
them in severalty in the land. The bill prays the
court, that a decree may be entered confirming: their
election to take their share in the land, and that they
may be decreed to be owners thereof as tenants in
common; and that the lands may be partitioned be-
tween them in kind; and that commissioners may be
appointed and empowered by the court for this pur-
pose to make such division and partition between the
parties; and to assign and set off to each of them the
full equal one fourth part of said lands in severalty, so
that each of them might own and control her separate
portion of said estate in severalty. Thereafter a de-
eree was rendered in which the court finds, that each
of the
Page 2
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parties mentioned who were complainants
in the amended bill, had agreed that such land should
not be sold by the trustees, but in lieu of such sale
had elected to take their respective shares or interests
in the property in land instead of money; and the
court also finds, that such election is a reasonable one,
and is approved by the court; and that a sale of the
real estate as provided for in the will by the trustees
would result in a sacrifice of the property and a great
loss to each of the parties interested. Commissioners
were thereupon appointed to make the partition of
the premises referred to, in accordance with the pray-
er of the bill; and the commissioners appointed made
their report, in which they set off and allotted to each
of the parties complainant in the bill certain parts
of the premises described in the bill, on the basis of
valuations fixed by them, on the respective parts and
parcels which the parties were to take in severalty.
No objections were filed to this report of the com-
missioners; and the court confirmed the same; but
later, during the same term, a motion was made by
the appellees to set aside the report of the commis-
sioners; and the motion was supported bv affidavits
concerning the fairness of the division between the
parties, and the correctness of the valuations made by
the commissioners, and legality of the action of the
commissioners in fixing owelty. Leave was given to
the appellant to file counter affidavits concerning the
same matter. Afterwards upon hearing, the court
vacated the decree confirming the partition of the
premises; also set aside and vacated the report of the
commissioners on the ground that it did not make an
equal and fair partition and division of the land be-
tween the parties; and the court then appointed
other commissioners to divide and partition the land,
as directed in the decree referred to. The commis-
sioners last appointed made a report, that the prem-
ises were not susceptible of division or partition with-
out manifest prejudice to the parties in interest, and
made an appraisement of the values of the different
tracts and parcels.
Page 3
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The appellant filed objections to
the report of the commissioners; and a hearing was
had upon the objections; and the report of the com-
missioners was approved, and the court entered a de-
eree for the sale of the premises as in a statutory par-
tition. An appeal is now prosecuted from the order
of the court overruling appellant’s objections to the
report of the commissioners and from the decree di-
recting the premises to be sold.
One of the contentions made by the appellant is,
that the decree confirming the report of the first com-
missioners which made a partition and division of
the lands with a provision for owelty was in effect a
consent decree. The record does not show that this
decree was entered by consent of all the parties to the
same, but merely that no objections were filed to the
same; and the record also shows, that the motion to
set aside the order confirming the report and the di-
vision of the land made was made at the same term
in which the report was filed and the decree of con-
firmation; and it was therefore within the power of
the court to vacate the same; but the questions con-
cerning the propriety of setting aside the order of
confirmation are not involved in this appeal. We are
of opinion, however, that the decree of sale entered
was improvidently entered, and was not in conformity
with the relief prayed for and decreed. The purpose
of the amended bill and the prayer thereof, as well
as the decree rendered in conformity therewith, were
to divide the premises in kind; and to prevent a sale
by having the premises divided among the parties in
kind, for the reasons set forth in the bill, and found
in the decree. The amended bill and the prayer for
the Equitable Relief sought and the decree of the
court entered in conformity therewith, rests upon the
presumption which is conclusively established by the
averments of the bill, that the premises involved are
susceptible of partition or division in kind. The ap-
pointment of the commissioners was for the purpose
of carrying into effect the relief granted, namely, to
effectuate a division and partition of the premises in
kind; and this was the only function of the com-
Page 4
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missioners appointed in the decree referred to; and
when the second commissioners reported their inabil-
ity to make division or partition required by the de-
cree, it was within the power of the court to appoint
other commissioners to make such partition or divis-
ion, as the decree required to be made. It does not
necessarily follow that because of the inability of one
set of commissioners to make a partition or division
in kind among the parties, that other commissioners
will not be able to do so; but the decree for the sale
of the premises is in direct contravention of the re-
lef granted on the averments and prayer of the am-
ende Pr
For the reasons stated, the decree of sale is re-
versed, and the cause remanded with directions to
sustain the objections to the report of the commission-
ers, and enter an order appointing new commissioners
to make partition or division in conformity with the
decree entered granting the relief prayed for.
Reversed and remanded with directions.
Page 5
Gen. No. 8033 Agenda 38
October Term, A. D. 1926
Jasper W. Stringer and Melvina Stringer, Appellants,
vs.
T. KE. Burner and D. L. Burner et al, Appellees.
Appeal from the Circuit Court of Hancock County
SHURTLEFF, J.
Appellants, husband and wife, who were com-
plainants in the cireuit court, filed their bill in chan-
cery to rescind a contract of purchase by them of real
estate from appellees, on the ground of fraud, and to
establish an equitable lien against the lands for the
amount of an advancement of $31,800 made upon the
purchase price at the time the contract was made,
and to have such lien take priority over a second
mortgage executed by appellees about twenty months
after the contract was made. Appellants had been
farmers in Iowa for several years and owned land in
that state, later had purchased farm lands in Knox
County, Illinois, where they had farmed about 240
acres of land for seventeen years, and about four
years prior to the transaction in question had sold
their lands in Knox County, retired and were living
in Peoria, where they owned a home valued at about
fifteen thousand dollars. Appellants held a second
mortgage for ten thousand dollars upon eleven hun-
dred acres of land in Indiana (subject to a first mort-
gage of thirty thousand dollars) negotiated to them
by Benjamin C. Koch and Oliver J. Hamm as B. C.
Koch and Co. of Peoria, which did not become due
until Mareh i, 1922, and appellants owned no other
property.
Jasper W. Stringer was fifty-eight years of age
and his wife forty-seven, and they had owned their
lands in common. Appellants knew something about
Hancock county lands as they held a mortgage
Page 1
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amount-
ing to $31,800 upon lands a few miles from the lands
in question, acquired either by trading or by means
of a loan. Appellees, whom we shall treat as the par-
ties defendant, principally interested, resided in Car-
thage and owned the 34,209 acres of land lying about
five miles northwest of Carthage in Prairie Township
and described as the north half of section 8. Appellees’
lands were encumbered by mortgage to the extent of
forty thousand dollars. The other defendants were
William M. Gordon and William M. Gordon, trus-
tee, the O’Harra Farm Loan Company, First National
Bank of Augusta, Farmers State Bank of Mendon,
Kendall Brothers, the Peoples State Bank of Hamil-
ton, State Bank of Adrian, Farmers Bank of Bowen,
Marine Trust Company of Carthage, Hancock County
National Bank of Carthage and Scott Belknap. All
of these defendants are interested by reason of being
the holders of certain notes secured by second mort-
gage on the farm in question, given about the first
day of March, 1922, to secure bona fide indebtedness
of the appellees, amounting to the sum of about sev-
enty thousand dollars.
The contract in question was entered into be-
tween appellants and appellees on June 23, 1920, by
which appellants agreed to purchase 342.09 acres of
land from appellees at the price of three hundred dol-
lars an acre, making a total sum of $102,627. Appel-
lants made a first payment of $31,800 at the time
the contract was entered into, assumed the payment
of the first mortgage, amounting to forty thousand
dollars, and were to make the final payment of $30,827
upon March 1, 1921, when possession of the lands was
to be delivered to appellants and deed given.
Clyde Johnson was an attorney forty-three years
sft age, and had been State’s Attorney of Hancock:
County and resided in Carthage. Johnson and HE. G@
McAnnulty of Carthage in the summer and fall of
1919 listed some farm lands in Hancocx County for
sale and among others the tract belonging to appel-
lees. Two of appellants’
Page 2
oar
ero
Ott eine inary RU pubees mi
vad inns as, barks fer bane ‘buat
principal witnesses, Oliver
J. Hamm and Benjamin Koch. lived in Peoria and
were engaged in the real estate buisness. It had been
arranged between Hamm and Koch on the one part,
and Johnson and McAnnulty on the other, that John-
son and McAnnulty should list the lands in Hancock
County for sale, and that Hamm and Koch in Peoria
should procure the buyers. Hamm and Koch had ne-
gotiated a second mortgage for ten thousand dollars
on lands in Indiana to appellants, upon which they
received a commission of two hundred dollars, and
in September, 1919, Hamm had persuaded the appel-
lants to look over the lands in Hancock County.
Hamm was thirty-seven years of age. He was man-
ager of the sales department of the Wayne water
softener appliances and Domestic LHlectric Supply
company, and had been so engaged for eleven years.
He also did some real estate business out of Koch’s
office. He apparently knew little about land from
practical experience. Koch had been a farmer en-
gaged in the electric light business at Freemont and
in the real estate business at Peoria. Koch testified
to no representations made about the farm or the
land. He did talk some with Johnson about the til-
ing on the farm but nothing was said by Johnson as
to tiling which in any manner misrepresented the
land. There is no testimony tending to show that
Johnson had any practical experience as to soils and
land except that which he acquired in 1919 and 1920
in making a few farm sales. It appears also that ap-
pellants became interested in the profits that were
being acquired in the rapid rise in price of farm lands
at just that time, as Hamm wrote McAnnulty in De-
cember 1, 1919, after appellants had looked over var-
ious farms in Hancock County and appellees’ land in
September previously, as follows:
‘“‘Mr. and Mrs. Stringer called at our office to-
day and are somewhat interested in the 320 acres
of land you mentioned in your last letter. They also
have a party who is interested in a good 160 acre
tract and will bring them with them to inspect it when
Page 3
——
ones peers puntata
“bine eat rite aide lonial noi ‘ot
tshonadi ith ron wise nie it i kee |
ssiiniehs att ee Hats muta truth foares, oboe n0t
joe pan has w pe cinlnes
wferel Spuhieallt Sebel sa
atew tats eifos sts th 2 Smeets .
“wbortok gsr: w bein sal ais iaonld
they come. They are very anxious that Mr. Johnson
should be on hand to show them the land and are
now planning on coming over with Mr. Koch and
myself the first part of next week.’’
It is admitted that appellant’s mortgage for $31,-
800 was ‘‘on the Cook land out here southeast of
Carthage.’’ How they obtained it the record does
not show. Hamm, the principal witness for appellants,
testified ‘‘that the Stringers were good judges of
dirt, good judges of soil’’ and in a letter written to
Koch under the date of January 22, 1921, Hamm
writes: ‘‘He is certainly hard boiled but I believe he
will see that he had better take it now while he has
a chance to get it.’? Hamm had been acquainted with
the appellants since the middle of July, 1919, and
about the middle of September, 1919, he took them
to Carthage to be shown Hancock County lands by
Johnson and McAnnulty. While Apppellant Stringer
testified that he was purchasing the 342 acres ‘‘for a
home,’’ it is evident that he did not have sufficient
funds or property to complete the contract, mortgaged
as it was for forty thousand dollars, but it is dis-
tinectly shown by appellants that Koch was to furn-
ish whatever funds appellants might be lacking to
complete the purchase. Appellant Stringer, his wife
and Hamm testified that in looking over the land in
September, 1919, Johnson said to them; ‘‘I have 342
acres in this tract of land listed from Mr. Burner, or
from the Burners, for sale, at $300 per acre.’’ Mr.
Stringer said, ‘this farm looks rather level and flat
to me, is there any tile on the place?’ Mr. Johnson
stated that there was a small string of tile near this
line where we were at this time, he also stated, or Mr.
Stringer asked Mr. Johnson, what kind of soil he
had on this farm. Mr. Johnson says, ‘We have from
two and a half to three and a half feet of right black
soil, underlaid with a yellow jointed subsoil, which
will drain perfectly.’ He said, ‘When there are a few
more tile in the land, this farm will be one of the
best farms in Hancock
Page 4
as (eet we Fai Sat austin neta
Kat Ares a bie weal
. ; daw ‘Pebiee
; hese swt isis sch oveelencpagaie gist
» Tapstitvas, stank dno Dial: toot
aeolimironat 4ilt dh bestatde ‘weil ne
el papede rent aneventiver essen * a)
cui ‘19 AS " cabal vo ‘5
ead ot olibw wrath ti catia cue we gogo
iHiw hodainepor asad ine: sous di segtod
biel earn te ‘itil, ads “so
ome
SE wx dil, Pt add me uaa
eereth aM siroryt hedeil dreal Yo te
ai i cen sheiay yong ae aa sid
County, if not the best.’ He
said, ‘There is a fall to the southwest of, I believe,
from five to seven feet to the mile, which will aid in
the draining of this farm.’ ”’
They drove around the farm and alighted from
the machine and went upon different parts of the
farm. It is shown that before going to the farm the
second time Appellant Stringer asked Johnson to get
a spade and Johnson said he would get a dirt auger,
and that he did go to some place in Carthage and re-
turned and said the party who had the auger was not
at home. No mention of spade or dirt auger was
made by any of the parties after that time. On. this
trip the party drove to and examined the work of a
tile digging machine and the layers of dirt in the
drain to depth of about five feet, about a mile and a
half north of appellees’ land, and pronounced the soil
very satisfactory. Substantially the same party ex-
amined appellee’s land the next day a second time
on the September trip and examined other lands and
farms and were back again examining farms and: ap-
pellees’ lands about the middle of October, 1919, at
which time Appellant Stringer testifies that he stated
that appellee’s land was very level and again inquir-
ed the nature of the soil, and Appellant Stringer and
Hamm both testified that Johnson again described
the lands in the same identical language that he had
twice before, always emphasizing that the land was
underlaid with a ‘‘double-jointed yellow clay.’’ On
this trip the party examined another tile digging
machine at work to the south and east of appellees’
land and found the nature of the soil very satisfac-
tory with black or brown dirt on the surface, under-
laid with a yellow clay. On the trip in October, 1919,
appellants first met Appellant Burner and as to this
meeting Appellant Stringer testifies:
“Went up to get the blueprints. Hamm, Johnson
and I drove up. Met him in the back yard. Burner
said he had a blueprint of the ditch where the tile
should go somewhere about the place, but he
Page 5
cathe y
itis in? thw. Holdin
juli Apsditsitee Ban atu)
salt Rg ea ahs ae Auoahite
si}. “ANE yeah ais, aad ‘agty
‘PRE ers
Sis) yan Gt
WPTE it si at
pera piles a. sieinglaia
ete aeugtaly Bi tyint baadetics
didn’t
know where to find it, but he would try and look it up
later on and furnish it to me; and as to the hedge
posts, he wouldn’t put them in the deal with the
farm but he would take the price of cutting. ”’
Appellant Stringer further testifies: “I didn’t
see the farm again until the latter part of May, 1920;
went with Hamm and met Johnson at the hotel; went
to the east side of the farm where they were plow-
ing corn. The corn was irregular. Johnson said they
had a late spring and couldn’t get the land ready to
put the crop in. Hamm and I walked to the hedge
posts. Johnson got in the ear and drove to the north
set of improvements. After seeing the stumps I
walked with Hamm toward the north set of improve-
ments and discovered a pond and some stumps where
an orchard had been; asked Johnson about the pond.
He said a little string of tile would take care of it
very nicely; saw clover field on the west side. John-
son never took him on the west part of the farm to
show him the soil; left the farm and when going along
the road Johnson said, ‘There is some yellow clay
sticking out of the side of the bank.’ He said, ‘There
is a fair sample of the clay that is on this Burner
farm? 2?
Upon returning to Carthage the party saw ap-
pellee at a garage he was building and Appellant
Stringer testifies: ‘‘I talked to him in the presence
of wife, Hamm and Johnson; told him that I liked the
farm but didn’t like the buildings and fences; thought
_ they were poor and thought $300 an acre was too
much. Burner said I wasn’t buying the buildings or
improvements. He said I was buying real Illinois
farm land, and he went on to tell me that the farm
had a black soil two and a half to three and a half
feet deep all over the farm; that it had a yellow
double-jointed clay sub-soil all over the farm; that
it needed a few tile, but after the tile was in there
the land was such that it would drain very readily,
and it drained to the southwest, and at the southwest
it had a natural outlet. I told him that I thought $300
an acre was too much.
Page 6
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Na OF teal Sp Ih ‘eval ied vadient
id et OY Pree ‘todtel |
Hidwiintatent lt A: Iapiad out eb
wba STORE seal
ea ‘ Erk thiiestt twat teh: evoith fet f
Tayonte add iyalboe
phe vihdaiaiuis Yo: tonal pat
eerily wermntrde ooete
Freep oelt derouls re
Hite ero: aaah bisow >
mer “ailodee: init “at 4
cued teen ite al i og penning
ly r
MN, ’
‘ erent Ya ‘te a“ st Ut ua
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Hat ox CORY RARE, ere:
NWA EEE RBM alist oils omuliy
el Tho Woy. sued nfivow
eke aT pte od
He said he had already turned
down an offer of $300 an acre for it and he wouldn’t
take anything else. He said he was going away and
Mr. O’Harra had the right to close the deal. I thought
the price was too great and we went home.’’
After making the three trips to Carthage and the
four examinations of the farm extending from the
middle of September, 1919, to the latter part of May,
1920, appellants testified that they had coneluded not
to buy the farm; they considered the price too high.
After this in June, 1920, the witness Hamm testifies
that he sent for Johnson to come to Peoria to again
persuade appellants to purchase the land, and that
Johnson came to Peoria and met Hamm at Koch’s
office and sent for appellants. Appellants went to
Koch’s office in the evening and met Hamm and
Johnson. Stringer testifies that they persuaded him
and his wife to go once more and look at the land;
that they never had inquired of the tenants on the
farm anything about the land; that Johnson had told
him that Burner was all right and a truthful fellow,
and more than that they had told him that Johnson
was. Hamm had told him that Mr. Johnson was one
of the leading men in the church and that he was a
very nice, honest and truthful man, and that Mr.
Burner was one of the head men in the church and
was a very truthful man. Stringer further testified
that Hamm had told him a number of times the church
which he (Hamm) belonged to, but he had forgotten
which one it was. He knew that Hamm attended
church in Peoria. Appellants were Methodists. This
testimony is enlightening as tending to show the
measures adopted by the witness Hamm to have the
sale made to his clients, the appellants, and the later
turmoil in which he embroiled his fellow churchmen
after he had secured his commission and the bottom
had dropped out of land values.
Appellant Stringer testified that no one ever
called his attention to any white spots on the farm;
that he relied on the statements that the farm had a
surface soil of two and a half to three
Page 7
ei ew re, bcos
at Las ariisin bis he ‘erat rh ‘aban
mn 4 donee atta sus wh
hoe. t baton) “ants oat
and a half feet
deep on top of double-jointed yellow clay, and that
it would drain perfectly. In fact, in the record the
depth of the soil and that it was under laid by a
‘“doubled-jointed yellow clay’’ is repeated so many
times in those exact terms by appellants and Hamm
that it loses much of its descriptive force. From the
record it would appear that each time appellants or
either of them met Johnson or, Appellee Burner
Stringer inquired each time as to the drainage quali-
ties of the land and particularly as to the nature of
the soil, and the stereotyped answer received—always
in the same identical language—impresses this court
that appellants had not relied upon any of the former
statements made by Johnson or appellee. On the
trip to Carthage about May 20, 1920, they talked with
Appellee Burner and Hamm testifies: ‘‘Mr. Stringer
said to Mr. Burner, he says, ‘we have been out and
looked over your farm and,’ he says, ‘it looks pretty
flat to me,’ and Mr. Burner told him that he had
figured on tiling the farm, it had sufficient fall, from
five to seven feet to the mile fall to the southwest
corner to drain it perfectly, if it was tiled, and then
Mr. Stringer asked him about the uniformity of the
soil and Burner assured him that the whole farm was
one uniform grade of soil all over the entire farm. It
was black loam soil from two and a half to three and
a half feet deep and was all underlaid with double-
jointed yellow clay subSoil, and if tiled it would drain
perfectly, and said he was not very anxious to sell
the farm. Stringer offered him $90,000 and he refused
it. Then he told Stringer that he was going to the
Democratic Convention and if you decide to come
to my terms I have appointed O’Harra, O’Harra and
O’Harra to transact my business for me and have
authorized them to close the deal, and Mr. Stringer
also brought up the question about the improvements
and the quality of the improvements, and Burner told
him, ‘you are not buying improvements, you are buyiug
black land and it always raised a good crop with even
one string of tile on the farm.’ He says, ‘I never
Page 8
pain aid pores |
eae Alt: A: vat, soa itn
bo dita
had a crop failure on the farm.’ He said, ‘I will leave
it with the law firm of O’Harra, O’Harra & O’Harra.’
He did not mention Johnson. ’’
As to this meeting with Appellee Burner Mr.
Stringer testifies: ‘‘Mr. Burner came out to the car
and we had a little talk about the farm. I told him J
liked the lay of the farm very much, butI didn’t like
the buildings and fences, they were very poor, and I
thought $300 an acre was too much for the farm. He
said I wasn’t buying the buildings and improvements,
he said I was buying real Illinois farm land, and he
went on to tell me that the farm had a black soil two
and a half to three feet deep all over the farm; that
it had a yellow double-jointed clay subsoil all over
the farm; that it needed a few tile but after the tile
was in there, the land was such that it would drain
very readily and it drained to the southwest and had
a natural outlet. He said he had already turned down
an offer of $300 an acre for it and would not take any
less. He said he was going away somewhere, I don’t
know just where, and he says, ‘I am in a hurry and
Mr. Johnson knows what I want for the farm; he
has got the farm for sale, and if you do make up
your mind to buy the farm Mr. O’Harra has the
right to close the deal and sign our names, my name
and Mrs. Burner’s name.’ ’’
After this meeting appellants returned to Peoria
and had coneluded not to purchase the land. Appel-
lants did not purchase the land until Johnson went
tq Peoria at Hamm’s solicitation about June 20, 1920,
and persuaded appellants to go to Carthage and look
the land over again. As to this trip Hamm testifies:
Mr. and Mrs. Stringer were urged to make another
investigation of the farm. They came over on the trip
when the contract was executed. Met Johnson at the
hotel by appointment; went out to the farm, John-
son again told the Stringers that the soil was uni-
form, was underlaid with a double-jointed yellow clay
and if tiled would drain perfectly; went to O’Harra’s
office with Clyde Johnson to draw the contract.
O’Harra said he had power of attorney. O’Harra
said, ‘‘I have always considered this farm the best
farm in Hancock County,’’ and
Page 9
says, ‘‘ You are not
making any mistake in buying this farm, that the
farm would be worth $500 an acre in less than two
years’ time. ”’
Appellant Stringer testifies that in a few days
Johnson came to Peoria and about eight o’clock in
the evening someone called him from Koch’s office
and he and Mrs. Stringer went down there and met
Johnson and Hamm. He testifies Johnson said: ‘‘ ‘I
would rather sell you that farm because I want to
sell you a good farm,’ and he asked me if I would
come back to Carthage and look it over once more
and make up my mind as to what I would do, so I
came back to Carthage and had another talk with
Mr. Johnson.’ Mr. Johnson said to me: ‘It is a mighty
good farm and that I was lucky to get it for $300 an
acre; that he knew that Mr. Burner had been offered
$300 an_acre for it and had turned it down.’ We fin-
ally decided to take the farm over in MeAnnulty’s
office.
We have quoted from the testimony in the rec-
ord and it is the only place found where either of
these witneses have omitted the representation as to
double-jointed yellow clay under a black loam about
three feet in thickness. The contract was executed in
O’Harra’s office on June 23, 1920. O’Harra had
a power of attorney given him to _ execute
the contract for appellees upon specific terms.
Before going to Carthage, appellant went to his safety
deposit box and took out his thirty thousand dollar
mortgage and took it with him to Carthage. At
O’Harra’s office appellant stated that appellee ought
to let appellants have some hedge posts, and O’Harra
stated that he was not making any trade. The con-
tract was discussed and O’Harra stated that he had
no authority to change the terms of the contract or
his authority; that if appellants did not want the
farm on appellees’ terms, it was all right, they need
not take it. Appellants signed the contract. It was
under seal, a simple contract to purchase the lands
upon the terms agreed upon. Appellant Stringer states
Page 10
i:
for ae Hata i ren: ee a, es ix nN, y
welt todd aapned wild aahyed, ik vitals ¥
ow enna weal, int wuss Aes anime
sh,
ailairo insta ‘oi tat $
| etal! (fit aden yi
ea: gas ; ashe, i
upon cross-examination that in examining the farm
his mind was never upon the nature of the soil and
he had been told what the soil was by Johnson and
Burner and that he relied upon their statements and
never inquired further about it. There is no testimony
in this case or claim that Appellee D. L. Burner
ever made any statement about the soil or farm, or
that she was a party to any of the conversations or
had any knowledge upon the subject of any kind.
The record in this case is voliminous and it would
be impossible to cover all of it. We can only set out
the salient points. The contract covered the land and
certain posts, wire and material which appellants
were to have at cost price. Appellants were
to assume the payment of the forty thousand
dollar mortgage and the interest after March 1, 1921.
Appellants were to have the rents upon the land from
the date of the contract in compensation for the in-
terest upon appellants’ mortgage of thirty thousand
dollars, upon which March 1, 1921, there would be
eighteen hundred dollars in interest due. Appellees
also, by the contract, transferred their right under
existing leases to appellants to go upon the lands and
plow after the crops were removed and to make re-
pairs, and the contract covers and transfers a tele-
phone and wiring upon the farm and in all respects
conforms to the power of attorney held by O’Harra,
the attorney in fact.
After the execution of this contract, appellants,
in the summer and fall of 1920, visited the farm, drove
around it and were upon it and, as Appellant Stringer
testifies, ‘‘were very proud of it.’’ They entered into
leases with the tenants upon the farm for further term
after March 1, 1921, when the contract with appellees
was to be completed. In the fall of 1920, as shown by
all of the testimony, the bottom in farm lands had
collapsed— the ‘‘bubble had burst.’’ That fall and
winter appellants strenuously attempted to collect the
Indiana mortgage for ten thousand dollars, but without
Page 11
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bits lide atlt to soturbiars: ould eben 40
ine moaittol, su maw ee st dnthw b (
PN 5 atl liane daily aloe
» AO peor “oy foe acl tdtdelss deegueepbate
aa uaa its Lene weleieg aig . :
“nth, alt tot aeltsaseognens: sh sada: ae
bawemod) ttt to ape trode tahmalngany
ad fofivon writ) UROL nk ort, Hoiiwe. 94
aollogeAL oa daoratst ab wnallol) Aviva
han hight edt horeleawsd, _dareasios :
Dying abvical! aah inocu oma adulloenepsr od an
-o solanr 0d brut. bevorton vow eqote s
slot ay polacen bine stoves \behites. ond
eooquet Hawi baa apne aon
anetthE€D te blot, feu i bainre: rh
success. The testimony shows no attempt on the part
of appellants to sell their home in Peoria, but Koch
did negotiate a mortgage upon it for $7,500 which ap-
pellants learned in January, 1921, could not be car-
ried through or the moneys furnished. As early as
January 3, 1921, Hamm is writing McAnnulty that ap-
pellants would require ten thousand dollars more
than they could raise to complete the contract and
suggesting that appellees take a second mortgage
back on the lands for the amount. A few days prior
to March 1, 1921, Hamm and appellants went to Carth-
age and went over the matter with Appellee Burner,
and stated they would not be able to complete the
contract and had no funds on hand to apply at that
time. Appellee Burner told them not to worry about
the matter but to go home and he would give them
time to raise the funds, but no particular time was
mentioned. On the evening of March 1, 1921, Appellee
Burner, with his brother, appeared at the home of
appellants in Peoria and tendered a deed and had a
contract signed, the terms of which would extend the
time of payment for appellants ten days. Appellants
sent for Hamm. He came and advised appellants not
to sign the contract. Later, after the Burners had left,
Hamm advised appellants to see a lawyer. Up to this
time appellants had made no complaint about the
land and testify they were pleased with the purchase
and ready to acept the farm. Hamm took them to a
lawyer, as Appellant Stringer testifies, to see about
selling part of the farm to complete the contract.
They went to Carthage with the lawyer, as Appel-
lant Stringer testifies, to see if the lawyer would ad-
vise his client to purchase a part of the land. Appel-
lant Stringer testifies that the first place they went
to in Carthage was to the ‘‘Advisor’s’’ office to see a
soil map, and states that the lawyer did not like the
looks of the map. They returned to Peoria and sent
for the witness Boers at Lacon, a civil engineer, who,
with appellants, the lawyer and two other witnesses
experienced in tile digging, went upon the land the
latter part of March, 1921, and
Page 12
(i
ee aa tow reais peer
anki 25 pene ad tiie peers vb
Auge filstow! Meseewenl guld po Eh
ethices re oul park |
auld hatte abana oft aii men cits
made various experi-
ments in testing the soil upon the 342 acre tract.
Boers testifies: ‘“‘We went to the Burner tract, and
under my direction, two tilers we had with us, the
two Abbots, dug test holes under my direction over
the tract to determine the nature of the soil, both the
surface and subsoil.’’ At that time they had a copy
of the soil map and by these diggings they endeavored
to verify the map. Most of the holes were dug on the
west side. A few were dug on the east.
“‘We found that the black silt loam extended prac-
tically over the entire east half, and extended to a
depth of two and a half and three feet, and was under-
lain with the clay subsoil. On the west half, in the
north center and northwest portions thereof, we found
a brown-gray silt loam on tight clay. This brown-
gray silt loam over the tight clay, the surface soil
varied in thickness from seven or eight inches to
twelve or thirteen inches, the average being about ten
to twelve inches. In most places it was underlaid to
the depth of twenty inches by an intermediate soil,
of a more or less plastic nature, a brownish-gray in
color, and more or less impervious to water, though
that to the depth of twenty inches or' more, was under-
laid with a tight clay, very plastic and impervious to
water. This intermediate soil was not at all times
present, in some instances the top soil at a depth of
of ten or twelve inches verged immediately into the
tight clay subsoil. This tight clay subsoil is a very
plastic, viscous and impervious clay, having the ap-
pearance of unvulcanized rubber, as near as I can des-
cribe it, and when wet and broken apart, to be in
horizontal layers. ’’
“‘The farm is flat, with a slight fall to the south-
west. From the nature of the soil and the nature of
the subsoil and nearness to the surface to which the
impervious clay lies, I would say it would be imprac-
ticable to tile it.’’
“Tile, to properly drain cultivated land, should
lay between two and one-half and three feet below the
surface. If tile were laid
Page 13
ee
a rob: OMe soit s0
(2 ag sso bgeis ;
in the Burner farm this way
they would not work, or would work so slowly it would
not be beneficial. In some years if the distribution
of moisture were proper, fairly good crops might be
raised, but as an ordinary thing, the top soil being
so shallow, it becomes thoroughly saturated with the
heavy spring rains, and being underlaid with the im-
pervious strata, it keeps it wet for such a period that
it does not drain out properly and does not warm up
soon enough that seeding could be done as early as it
could in better drained soil. Then, as the season pro-
gresses and as the top soil dries out, and the summer
droughts come on, the plants would be required to
draw their moisture from the lower depths and this
same impervious strata would exist, and would hinder
the capillary attraction. On the Burner farm the im-
pervious clay would lay above the tile. ’’
Boers further testifies that the east half of the
farm is much better than the west half and that the
west half of the tract would be worth about forty per
cent as much as the east half. .
Boers was on the tract again in October, 1921,
with Appellant Stringer, the lawyer, and Evans, Wier
and Snyder, who were witnesses from the State Uni-
versity. The consensus of this testimony is that there
are about one hundred acres in the northwest part
of the tract that is a shallow, light covered soil, eight,
ten and twelve inches in thickness, resting upon a
“tioht’’ or impervious clay which prevents drainage,
and in shortage of rainfall, drys out and the crops
erowing ‘‘burn up.’’
The soil map, made under the authority of the
State, through the University, and in the hands of the
farm advisor of Hancock County, was offered in evi-
dence, and shows, as near as we can determine, sixty
to seventy acres in the northwest part of the tract to
be a ‘‘brown gray silt loam”’ or ‘‘tight clay’’ and that
the balance of the tract is a ‘‘black silt loam on clay.’’
It is conceded by all the testimony in this case by the
witnesses who had any knowledge upon the subject,
that there was some ‘‘spotted land’’ in the northwest
Page 14
¥& ” ih pa " sant att ft ’
f afaio's # ie shone ae el hlnow:
_ sabi fvbreiw! fogs ‘bepae bloow
ntl -sel tee, baie hi belie ae
si in rls mt oie wai 5 ta ih
Penn's cod
ih
part of this tract where the subsoil was a more imper-
vious clay, but there is a wide variation in the testi-
mony as to the amount, its nature and its value.
On the 31st day of March, 1921, appellants served
notice upon appellees which contained the following
statements:
‘‘Hor the purpose of inducing us to enter into the
foregoing contract, you and your agent and. agents
represented and stated to us that thd top soil was black
loam for a depth of over two feet and the subsoil of
said real estate was of a type highly desirable and
well adapted to farming purposes, and particularly
that the subsoil underlying said land was of yellow
clay and porous so that the surface water would freely
pass through it, and further stated that said sub-soil
was first-class in respect to its drainage qualities.
““We relied upon said statements and each of them
and believed them to be true and were induced thereby
to enter into the contract aforesaid. We have now
discovered that said statements and representations
were false and untrue in this, that approximately one
hundred acres of the West Quarter of said real estate
has as a surface soil a loam of a light brown color of
a depth of about eight inches, immediately below this
is a gray clay stratum of plastic and impervious clay
to a depth of about 18 or 20 inches, and underlying
this there is a stratum of very plastic impervious clay
of a thickness of 8 to 12 inches; that this clay is im-
pervious to water and prevents the drainage of the
surface water from said land and is so near the sur-
face that it is not practical or expedient to tile said
land by means of tile ditches and that there is no
practical way of tiling and draining the said land, and
because thereof the value of said land for farming
purposes is greatly impaired and its fair cash market
value greatly depreciated.’’
Appellants, therefore, in the notice elected to ter-
minate and rescind the contract and demanded the
repayment of the sum of
Page 15
Ugeyanee a
ead ail) ie codtnits on
nk ate lets
han sai i ea
meld ay emer 1
$31,800. At the time of
serving this notice appellants delivered and turned
over to appellees the new leases appellants had taken
to the tract and advised Appellee Burner that they did
not want the lands. Later, about June 16, 1921, ap-
pellants caused their contract of purchase with appel-
lees, having a notice of rescission attached, to be re-
corded in the office of the Recorder of Deeds of Han-
cock County. The notice of rescission attached to the
contract and recorded is as follows:
““To Whom it May Concern:
“Notice is hereby given that we and each of us
have rescinded the foregoing contract on account of
certain false and untrue statements and representa-
tions made to us, which induced us to enter into said
contract; that because of said rescission we expect to
and will start suit for the recovery of the $31,800 paid
under said contract to said T. E. and D. B. Burner;
and notice is hereby given that we claim a line against
said premises to the extent of said sum of money.
“Dated this 16th day of June, A. D. 1921.”’
(Signed by appellants. )
Thereupon, on October 6, 1921, appellants filed in
the Cireuit Court of Hancock County a praecipe for
summons in assumpsit and summons was issued re-
turnable to the October Term, 1921, of said court. A
declaration in assumpsit was filed in said cause on
October 6, 1921, based upon special counts and the
common counts. This cause stood upon the common
law docket of the court until April 22, 1922, when, by
order of court, the cause was transferred on motion of
appellants to the chancery side of the court, and ap-
pellant presented a bill of complaint praying for
equitable relief and praying summons issue for the
additional defendants holding mortgage lien claims
and appellees in this suit.
Page 16
It is charged in the bill that the representations
made were: ‘‘That all of said land has a surface soil
composed of black loam to the depth of about two feet,
and that underlying this for several feet was a yellow,
double-jointed clay subsoil, which was pervious to
water and of such a character as to permit the free and
uninterrupted passage and absorption of water falling
upon the surface and of such a character as to permit
water by capillary attraction to pass freelv from the
subsoil to the surface.’’? This charge as to represen-
tations was made in one count of the declaration in
the common law suit. We set it out as it contains
phrases not previously used by appellants such as
““double-jointed,’’ a term enigmatical to many wit-
nesses in the case, and we have not been able to find
the term in the dictionaries. In fact, but one witness
of appellees’ forty-five witnesses had ever heard of
the term or was able to define a ‘‘doubie jointed’’ clay
subsoil. It is noticeable, also that appellants did not
use the term in the notice of appellees, and the term
used is peculiar in this record.
Appellees produced over forty-five witnesses.
Appellee Burner and Jolinson denied emphatically
that either of them had used the terms and language
ascribed to them in certain respects as testified to by
appellants and Hamm, or that they or either of them
had made any statement about the tract that appell-
ants could not see for themselves. Burner’s descrip-
tion of the amount of tile on the farm, its location, the
slope of the land and the out-let to the southwest, was
all borne out by the facts as proven. But some of
appellants’ witnesses from the University testified
that land could not be drained where ‘‘tight clay’’
was present, and that statement, from all the testi-
mony, as an academic question might be true in cer-
tain isolated and extreme cases; but, from the testi-
mony, it is not ordinarily true in practical farm drain-
age, as many of appellees’ witnesses
Page 17
mailer, nolan bo stodter
‘incre ha “taba
testified. Just
how much ‘‘tight clay’’ or brown gray silt loam there
was on the west quarter section, it was difficult to
determine. Boers and his assistants bored holes at
various places with no particular system and came to
the conclusion there was about one hundred acres of
so-called inferior land, Stringer testified that he had
never heard of ‘‘tight clay’’ lands. Burner testified
that he had never heard of a ‘‘double-jointed yellow
clay’’ land and each may have testified truthfully.
Appellee caused a survey to be made of the entire west
quarter section of the land and a hole to be dug every
two hundred feet in each direction. William Jeffrie
Horney, aged seventy-five years, a farmer and sur-
veyor, who had had experience in farm drainage and
given a good deal of attention to the nature of soils
and the effect of tiling, testified for appellees:
“‘T did some surveying for Burner on the Burner
farm; dug holes on the farm in company with Dona-
hue, a soil expert from Macomb. This was done July
last, from the 4th to the 9th; dug a hole every two
hundred feet over the west quarter, beginning at the
southwest corner; used thirteen stakes in crossing the
quarter section. Then we went north two hundred
feet from that and back on another line, until we set
a stake every two hundred feet over that whole quar-
ter of land. Dillon, Cook and McKee dug the holes.
After the holes were dug, in company with four or
five other men, Cook, McKee, my grandson, Paul Hor-
ney, and myself and Fisher, and a soil expert from
Macomb, investigated the soil; took a tile spade and
sliced down the side of that hole to the three foot
depth, laid out the slice so that we could measure the
soil and the sub-surface soil and the sub-soil, and pass
on its quality. My grand-son, Paul Horney, kept the
record after we passed on it and agreed on what we
could. This record was turned over to T. HE. Burner
at the close of the investigation.
‘““There were two distinct ponds. Some of the
holes came in the ponds. One had two. The soil
in the north pond was rusty and was jointed, but
showed rusty streaks through it like water had laid
on it; have drained ponds like that successfully.
Page 18
bina! hagiid asa ais .
_atiog Y est old, Oba
‘<The soil in the south pond was the same as the
other; think it would tile drain; know about light or
white spots in land in Hancock County. The soil is
harder to dig through than black soil.
‘‘The last hole was near the northwest corner of
the west forty. There was more dark soil toward that
corner; put down an extra hole at the northwest cor-
ner; saw a quarter of an acre of light land up near the
northwest corner. That light soil will not drain as
well as the other land; think the Burner farm can be
tiled.
Q. ‘‘Did any of these holes go down in any of
these white spots on this quarter?
A. ‘Yes, there was several holes that the soil
was tighter than at other places. Now, I don’t re-
member; it seems to me No. 20 or 21, that is east on
the first row, was about the worst of any I saw. That
is the hardest. * * * That is my recollection,
just from memory. I know I found that to be toler-
able hard soil.’
You can’t tell the white spot as well when there
is corn growing on it; ‘‘couldn’t see it for the corn. ’”’
That soil was tighter and harder than in the ponds.
Sometimes the white soil was in a spot and sometimes
in a streak. The drainage of the east half of the
Sinele eighty is toward the east and south. The plat
shows two distinct drains, outlets, near the southwest
corner of the west quarter. There is a well defined
fall of the east part of this farm to a drain there on
the south line. There had been a heavy rain and they
could tell the drainage of the land by the way the
water had flowed on the surface. The white spot
comes in between stations 157 and 158 just south.
Between holes 49 and 50 there is a windmill. The
circle around station 85 represents a pond. The circle
near 127, 134 and 135 is another pond. Nothing grow-
ing in the pond when he was there.
The arrows show the natural flow of the water.
There is sufficient fall to drain the farm. The lines
give the direction and
Page 19
1 yn aon
Bb ow. itd |
ie wee
beset 9 de nse
euitiyb pero
of bon atupiat dt
oto y edt siti be aso
the figures give the rise in feet.
Most every section has a fall, and when they are added
together there is a good, fall on every line.
There is enough fall on the farm to successfully
drain it; thinks the soil will drain on that farm.
Q. ‘‘Did you find any hardpan in there?
A. ‘No, sir, not any hardpan that I call hard-
pan. Of course, there was a close, tight soil in a few
spots that won’t drain very easily, won’t flow freely
through it, but you find it everywhere over this county
and even in other counties.
@. ‘‘You may state whether or not you have
found such spots in practically every farm you drained
in this county?
A. ‘‘In many of them, yes, sir. ’’
Didn’t dig on the east quarter. Most of the west
quarter is a brown soil ‘‘with occasionally a white or
light spot. ’’
“‘T have a recollection that there was no bad soil
except as I tell you, occasionally, probably twenty
holes on that whole farm that I considered pretty tight
soil, hard to drain.
Q. ‘‘Yes, sir, take hole 21 and describe it from
the surface down three feet.
A. ’’Well, it had apparently a good little bit of
soil on top, not deep.
Q. ‘‘About six inches?
A. ‘Yes, sir, and a subsoil or sub-surface soil
that grew into a whiter, lighter color. While this
showed on top, it didn’t show as plain as it did below
the surface, because it had been mixed in the top by
plowing and farming. Probably some day it had
shown whiter.
Q. ‘‘How deep would that be, Mr. Horney, the
sub-surface?
A. ‘‘As near as I can remember, probably six or
eight or ten inches, may be nearly to the bottom of
the hole, of the light colored soil.
Page 20
Q.‘“That would be this whitish-looking, stickier
soil?
A. ‘‘Yes, probably the same as you have there.
Yes, it probably does. It was as light as that.
Q. ‘A kind of sticky clay?
A. ‘‘No, not necessarily so sticky, but it wasn’t
a jointed clay, exactly, but it was porous. ’’
It is better to take a testing of soil with a spade
rather than with auger. The auger pulls the soil to-
gether. An auger compresses the soil. It is better
to lay it out with a spade.
Joseph McKee, who assisted the witness Horney
in surveying the tract, had spent a life time draining
land and had placed three hundred and fifty miles
of tile in Hancock County. He testified: ‘‘I know
the Burner half section of land. I was on that land
during the month of July, 1923. I dug test holes all
over the quarter—every two hundred feet. That was
the northwest quarter of the section—the west half
of the half section. I dug most of the holes myself.
They were dug by stakes set by W. Jeff Horney. I
was there when he set them. The stakes were num-
bered. Stake No. 1 began at the southwest corner
of the quarter. From here they ran east. The last
number east on the first row was No. 13. Then there
was another row two hundred feet north, then west
again. This was continued back and forth over the
quarter, up to 169 holes. The last hole was in the
northwest corner of the quarter—or rather it should
be the northeast corner—the 169th hole. I put down
holes near these stakes. They were practically all
three feet deep. I probably dug a hundred of them.
I observed the kind and character of the soil I was
digging in. I examined the soil in all the holes. We
dug down’ by the side of the hole with a spade. We put
down additional holes in the northwest corner. We
were looking to see if we could find any hardpan. We
put a hole a little northwest of the last stake in the
northwest corner. I
Page 21
vhs ie Kee
sei sone femme 6)
sbotnt mo
woud ie
onion: sabbath to aan Eau.
Ker pishuiee Yel, We si im wh
taal od»
axoilt od.
sven: rae j steal As@8t
‘Hs, elissitoatg asew yet 24
ated: tovhesiiadd al wars elder .
ae Toe sdf tote
“a possi wal aa an
Ww TSer09 sie i
ne pei Bard nt bias:
heard about it being a bad place;
that it was the worst place on the farm. I put the hole
down three feet. That hole was clay loam; it would
drain. The additional hole near the northwest corner
was practically the same thing as the stake; it would
tile drain. There was a hole came in each of the
ponds. It was a kind of a brown loam, and a grandu-
lar clay subsoil; it would tile drain. I did not find any
hardpan on the west half of the Burner land. I am
familiar with hardpan,
““A day or two before, or at least a little before,
I put down these 169 holes I put down some other
holes promiscuously on the land. One was about
station 20 on defendant’s exhibit 3. There was some
dispute about the ground being hardpan, so I dug two
holes there practically and left a partition between,
and poured a couple of buckets of water in there to
see what it would do and the water seeped through
from one hole to the other. The partition was six
inches thick between the holes and the holes about
three feet deep. The soil there was porous. This
was a white spot where I put these holes. The soil
was porous. I found no soil on the Burner land tight-
er than I found at this point, No. 20, where I poured
the water in the holes. I think that there is plenty
of fall on the land to drain it. I did not help Mr.
Horney in this getting of the levels, but I had taken
levels myself once before over the same farm.
Q. ‘‘Now, Mr. McKee, I want to ask you wheth-
er or not, in your opinion, from your experience as a
drainage contractor and tiling different farms, and
from what you saw of the soil on this farm, on the
west half of the Burner farm, it is practical to tile
drain that quarter section, of land and all of it?
A. ‘‘It is, yes, sir.
'Q. ‘‘And will or not, each and every part of that
quarter section of land successfully tile drain?
A. ‘Yes, sir.”’
Page 22
ils sins i ee fi i cn
slow add: ai fe sae G
“‘T have had experience in tiling farms that have
white spots on them, and on places such as were found
on the ponds on this quarter. The tile laid there
makes it the best part of the farm. I have laid tile
in ponds similar to these. I do not find any tight sub-
soil on this farm. I did not find any land in this
quarter section that you would call plastic clay or
any white spots which would prevent it being suc-
cessfully tiled. I have had experience in determining
the character of the soil in putting down holes on
land. The only accurate way is with a spade. You
can’t do anything with a two-inch anger. You bore
down in the soil and that destroys the pores of the
clay, works it up together and you can’t tell whether
it will drain or not. A two-inch auger just putties it
all together and mixes it all up. You ean not tell
anything about the soil after it is baked hard—after
it is mixed together that way, nor can you tell imme-
diately after it is taken out. There was corn growing
right up to the pond—that is, the north pond. I ob-
served the crops on the place last summer. They
were good when I was there. You couldn’t tell any
difference in the crops on the light places and on the
rest of the farm.
Q. ‘Now, I will ask you how this land will com-
pare as to tile drainage with the average land up
through that section, Mr. McKee, as to whether it
will drain as well as the average land up through
there?
A. ‘Yes, sir, it will.
“T have had occasion in laying 350 miles of tile
in Hancock County to observe the effect on land sim-
ilar to the Burner land, where tile is laid through these
spots, and through ponds in soil similar to the Burner
land. We have these spots in almost any quarter in
Hancock County. There is no quarter where you
can’t find it. This is as good a quarter as there is in
the county. ’”’
Page 23
are) bini it cr pert
neh bish caret PA Sains: be risa
Albert O. Behnke testified that he was a farmer
and stock feeder and says in the latter part of June
or the first of July he sold what has been mentioned in
this record as the Behnke farm at $265 per acre. He
says he does not know what it sold for when sold the
second time but he says that the third time it was sold
for $325 per acre. These sales were made in 1919 and
1920 and as already shown by other witnesses the
Behnke land was not as good land as the Burner land.
It was purchased at $325 per acre by Grover Barnard
who had formerly lived in that vicinity. This wit-
ness, Behnke, says that he had known the Burner
farm for fifty years; that he had always considered it
a good farm; that there was always a good crop on it.
This testimony was corroborated by numerous
witnesses, men of practical knowledge of affairs, and
in such numbers that this court is impressed that the
condition of the soil in the part of the tract in question
is not a hardpan or impervious clay underlying any
considerable portion of the tract, but that it is spotted,
there being in places light spots or streaks where the
surface soil would not extend so deep and be underlaid
with a harder clay, more difficult to drain, but still
porous. These spots and streaks were found on near-
ly every farm in Hancock County and as to the amount
of this land on appellees’ tract, it is practically im-
possible to determine; one witness testified not over
two acres. Of actual land underlaid by this clay,
probably there was not to exceed twenty acres. There
may have been more and it is quite possible there was
less. There was testimony tending to show that one
could see and observe this light soil by going over
it, and Appellant Stringer’s testimony corroborates
this theory in the importance he imputes to the claim
that Johnson and Hamm would never take him over
this part of the tract. Johnson testifies that they
were over this part of the tract, and that Appellant
Page 24
Stringer saw the spots and that they discussed them.
The testimony of over thirty witnesses was un-
disputed that in June, 1920, similar tracts of land in
Hancock County were selling for three hundred dol-
lars per acre. Only one witness placed a lower valua-
tion upon the tract—$275 per acre—while a few testi-
fied that the price had gone as high as $325 per acre.
This testimony was competent as bearing upon the
question of motive that appellees might have to com-
mit a fraud. Appellees had purchased the lands in
the spring of 1919 at $220 per acre. The increase in
value is not remarkable under the testimony in this
case, and to those who remember the ‘‘booming’’
times. There are certain features of this case which
are remarkable, some of which have been pointed out
and do not need further amplification. Appellant
Stringer testified that he purchased these lands for a
home, as corroborative, we take it, that he relied upon
appellees’ representations as to the soil. If he testi-
fied truly he made a very improvident bargain, at
fifty-eight years of age to purchase a tract of land
encumbered by a mortgage for forty thousand dollars
and without the means to pay for the equity, and with
no means with which to tile, drain or make repairs
upon the dilapidated buildings and fences. The nat-
ural thing for one desiring a home, in the opinion of
this court, would be to first find a market for the one
which he has and, at least, before he purchases to
provide himself with means sufficient to pay for the
equity in the roof which he plans to cover him. This
appellant did not do. If appellant were speculating
in land, and purchased this tract for a resale, at a
profit, which he expected, this court could more read-
ily give credence to Hamm’s testimony that Appellant
Stringer ‘‘was a good judge of dirt.’’ The testimony
of Hamm is not impressive in this record. At the time
Hamm was advising the Stringers to see a lawyer and
assisting in laying the foundations of this litigation,
Page 25
1109! sos Sid thy
Ghebunh adlt honor
__noipr witihign ath sage die a) TRAE
- siteod ob EL iow ald, ot-may actontinh .
ie pecgreprint epee a
ant ary mar mt + $a
begs stil alba o}
he had in his possession a good remunerative commis-
sion paid by appellants for getting them into this diffi-
culty. The record does not show that Hamm has ever
offered to return any part of this commission to ap-
pellants; neither does it show that Hamm was de-
ceived or misled by any of the false representations
charged to Johnson or Appellee Burner. In fact,
Stringer substantially charges Hamm with aiding
Johnson in keeping appellants away from the west
part of the tract. Appellees’ conduct on March 1,
1921, in offering to extend the time of payment and
delivering the possession of the lands to appellants,
as appellees had done, hardly seems in accord with
a fraudulent transaction.
The Master in Chancery found that the testimony
did not establish that appellees or their agents made
the false representations upon which appellants relied,
charged in the bill of complaint, and the chancellor
has approved that finding, upon which a decree has
been entered. The burden of proof to establish these
charges is upon appellants. Hungerford v. Behrens,
308 Ill. 414. The law. applicable to this case has been
aptly and forcibly laid down in Crocker v Manley,
164 Ill. 296, where it is held:
‘““InFarmsworth v Duffner, supra, which was a
bill for the rescission of a contract of purchase and to
recover the money paid on the contract on the ground
that it was entered into through false and fraudulent
representations, in the decision of the case it was said:
“Where the means of knowledge are at hand and
equally available to both parties, and the subject of
purchase is alike open to their inspection, if the pur-
chaser does not avail himself of these means and op-
portunities he will not be heard to say that he has
been deceived by the vendor’s misrepre.entations. ’
It is there, among other things, also said: ‘In Lud-
ington v. Renick, 7 W. Va. 273, it was held that ‘a
party seeking the rescission of a contract on the
ground of misrepresentation must establish the
Page 26
ei ‘ ha ie
“Bib gIOD nubian hows. & piaaRaoKt
-PTtify atult obs usd): Ritition, wi alaotle :
04S seiaenhaesinr apse
opt iad yeas mallee ae
tte pesianse noid:
ptadtteenia.id ir pata en one
Ativ ieee ih antnge action, aitob,
saat? ‘heildiateo.ov shel ea ‘asbagtt sia
ametled ¥ brobennnl ahoslloqen mot oe
raed ealionas aidd ot sditolicicenivarbk ae) \
velaeM v peau a, seve besa
os y Mat: Cask Paidaand baie
heurory ould to, tonidaoa aft no big coi
trafohrett baw cole. dauond ‘oihai
Give gaw 3iaend oil, to aolainah ont
bite feed ta. om aeholaoad to eaneat
to ween aii bara ~asltzag idtod.
ai dail ‘lo: od, aioe Bi amy sat MG,
ot ao taarinoo 6 to cok
oft daiidetas jemm cobtaigoesutaset
same by clear and irrefragable evidence; and if it
appears that he has resorted to the proper means of
verification, so as to show that he in fact relied upon
his own inquiries, or if the means of investigation and
verification were at hand and his attention drawn to
them, relief will be denied.’ In the case of Attwood
v. Small, decided by the House of Lords, and reported
in 6 Cl. & Fin. 232, 233, it was held that ‘if a pur-
chaser, choosing to judge for himself, does not avail
himself of the knowledge or means of knowledge open
to him or to his agents, he cannot be heard to say he
was deceived by the vendor’s representations.’ And
in 2 Pomeroy’s Equity Jurisprudence (sec. 892) it is
declared that a party is not justified in relying upon
representations made to him: ‘(1) When, before en-
tering into the contract or other transaction, he actu-
ally resorts to the proper means of ascertaining the
truth and verifying the statement; (2) when, having
the opportunity of making such examination, he is
charged with the knowledge which he necessarily
would have obtained if he had prosecuted it with
diligence; (3) when the representation is concerning
generalities equally within the knowledge or the
means of acquiring knowledge possessed by both par-
ties.’ But if the neglect to make reasonable examina-
tions would preclude a party from rescinding a con-
tract on the ground of false and fraudulent representa-
tions, a fortiori is he precluded when it appears that
he did make such examination and relied upon the
evidences obtained by such examination, and not upon
the representations. ’’
In this case there is nothing to show that Appellee
D. L. Burner made any representations or knew any-
thing about the land or soil or had or appointed any
agent to act for her, other than O’Harra through the
power of attorney and the terms of the contract therein
recited. Nothing in the record indicates that Appel-
lee T. K.. Burner had any more knowledge about the
land or soil than appellants had. Certainly it is not
established by ‘‘clear and
Page 27
he ee Pee shiva sdagon une had J mri
iy ans ne sacle dich ae
heowat A to coke oooh Lh bakwuh: al 4
a te badioges, ban liek to sesoll git ed 4 sige
ty TEAR 8 te Sp Red Baw ite) ER ‘SRE ing
fig sind apab: ey thawttontal, oh a8 ol ot tsi
wail sis ite 8 ‘ake te lt oie
hte ithe.
1 ot Bit taba nen jee “iets ie vellaaya i
chy alte "4 ve bennneOny exihval wort suns
“Boilie Slduseaaed ataniay
SOD ae ci baigeen se
Gael, BETGROTSY subtubuet) ‘pars signs He
i yr fad aampgnre 4b odie bebrloag ‘oid
eit. coau Buiter tan oranges
ey
es
=
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s
=
pies
=
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=
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E
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es
-
a
“YR WP Lo eal mobonkyoe we
vtEn bes ETOAC oe 0G) Dusah 1, ssid !
nit shyuertclt I nl
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ithe vil xy Howrhudp only te. orto} ane hein 4!
lagi deilt Bebe otbat bxogoe
"f
ot drods ae hob ont:
tor ebb vintategOo ob
irrefragable evidenee,’’ and
this court, from the record, is led to the irresistable
conclusion that this litigation would never have been
in the courts had not the panic in land values and
business occurred in the fall and winter of 1920 and
1921. We ean not say that the finding of the Master
and Chancellor as to the false representations claimed
to have been made, is against the weight of the testi-
mony. Weare satisfied that it accords with the testi-
mony. Other questions are raised in the case but
this finding makes it unnecessary to consider any of
them, except one.
The bill prayed that appellants’ claim for moneys
paid upon the contract be established as a prior lien
to that of the second mortgage upon the lands, and
the decree dismissing appellants’ bill for want of
equity apparently is res adjudicata of that question
against appellants. Appellants have assigned error
that the decree is contrary to equity and good con-
science and in not finding that the lien of appellants
for the amount paid on the contract is a prior lien to
that of the second mortgage.
_ Appellants and appellees have presented this
cause to a court of equity without presenting the true
relationship that these parties bear to each other
under the terms of the contract, in a court of equity.
Under the decree of the Cireuit Court and the finding
in this court appellants are denied the right to rescind
said contract, and it is still in force. Appellees have
never forfeited the contract or brought proceedings
to recover the balance due upon the contract, or to
foreclose against the lands. Appellees are in the posi-
tion of mortgagees in posession. (Lewis v Shearer,
189 Ill. 186; Rhodes v Meredith, 260 Ill. 143; Mie-
demav Wormhoudt, 288 Ill. 537; Ward v Williams,
282 Ill. 641; Knights v Knights, 300 Ill. 618.)
In Lewis v Shearer, supra, it was held: ‘‘The
appellant contends that Rudolph Topsico— having
failed to pay the purchase money when due by virtue of
the conveyance of three of the heirs of Frank M. Tat-
um to him, the bond for a deed was forfeited and he
became
Page 28
ae
wait! “sot Bap tie :
sae eee ber ionic
invested with the absolute title to the un-
divided three-fourths part of the land, disencumbered
of any right, title or interest therein of Rudolph Top-
sico and John A. Shearer. In a court of equity such
contention cannot be sustained. In equity the land
upon the execution of the bond and notes became the
property of Topsico and the purchase money that of
Tatum, and the transaction will be considered in the
nature of a mortgage, and treated as though a con-
veyance had been made to the vendee and a re-convey-
ance taken back by way of a mortgage when may be
sold and assigned, and the assignee may enforce such
lien in equity. (Lombard v. Chicago Sinai Congrega-
tion, 64 Ill. 477; Wright v. Troutman, 31 id. 374; Hut-
chinson v. Crane, 100 id. 269; Church v. Smith, 39
Wis. 492; Conner v. Banks, 18 Ala. 42 (52 Am. Dec.
209); Gessner v. Palmater, 13 L. R. A. 187.)”’
The contract between the parties was of record
and was an instrument relating to the title to the land
or some interest therein, at the time the second mort-
gage was given, and the notice of lien or rescission
‘“being an instrument not entitled to be recorded,’’ as
contended by appellants (St. John v. Conger, 40 Ill.
535) may be disregarded as notice to the holders of
the second mortgage indebtedness. The interest of
the parties in said lands, under the terms of the con-
tract, not having been litigated in this suit, it is the
opinion of this court that the decree of the Cireuit
Court of Hancock County as to appellants’ right to
rescind or cancel the contract, should be affirmed, but
as to the rights of the parties, appellants and appel-
lees, under the terms of the contract, the decree of the
lower court should be modified to show that appel-
lants’ bill of complaint was dismissed without
prejudice.
Affirmed in part and Decree Modified.
Page 29
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PLEA Te
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STATES OF ILLINOIS. a {7 Mi
ef Ns V Pe
APPELLATS COURT MS Tom.
‘i ey on
47H. DISTRICT. Ve.» 9 =
ee, f 99>
oon VE} s
Liye tey oe
OCTOBSR TERM, A.D. 1926. Nog
for <4), a
Mie
te. 35, | AG. WOx lbs
MIS ECKMAN, . ;
Appellee, ; APPEAL FROM
WS. : MADISON
‘your wILp?, ; COUNTY cou?
rf Appellant.
i.
7, Pete + Appellee is a real estate broker ond was employed by
ant to 7ind a purcheser for e house and lot he wished to sell.
hile mpaetiations sexe pending she snowed the property to @ 're
Dively, who Was very much interested and said he wanted the property
or one like it, The party who hed previously looked at the property
ided to take it and the deal was closed. Appellee +014 appellant
it ‘Ure Dively wanted to buy a property like the one she had just
La. She says that appeliant then told her thet if she got him
that she got her commission; thst Dively ceuld select any vacant
lot that he wanted; that he made a selection; that appellant
ht the lot, built the house thereon for Dively an‘ sold the
mises to him for $5,000«00.
Appellant testified that appellee talked to aim about
‘appellee tola him that if she made the deal with Dively he
pay her @ commission; that he told her he would make the
1 ag ae Wg V8
Pa
Nae OTH EET-90 weame 8
te \ RPSL wh
Meter aes eked » PHUOD ATAMINGTA
{ LS 4 gs (\ hak
ae ro) if Hite 3 SOT RETT oH eae
vay _ an
oh
<e Ng | i
pase iol aes sak’ 208 8E0900,
~Sanor Bah ne eh, Se o ;
ae
eOL 20M DA
ort TASTE,
K “wear
»PAUOO THRUOD |
~
no AT NRG
A0.0B. Ve Se Wer ct
XC Seno fae Bav oie otlend stabeo feet a 2 ,
inalleqaa tai? gaoivoetee & obam sik dah ia
eit bfon hoa ylovi' sot moexerit eexod edt tise ie of oa
#002000 8% wa
dvoda mid oF bexlat seLleqqa sais boit Htued he 11h
iofse tot Sad ede tadt tot tussey odd te b
ei ylovid dviw Caeb oat ahem edie K7 saast nis ‘Brot
cuit exian Sisiow ox wed Sot of tastd rep tanto 9
ee high enough so that she could get a commission of 5%;
| he never knew Dively and his wife until appellee introduced
to them; that when he went to see the Divelys they knew
nh app@llce that he bought the lot for $1350.00 and was to put
> a house for them for $3650.00. The price was satisfactory
) appellant and he sold the house and lot to Dively for $5,000.00,
sllee was not present at the final consummation of the sale.
received a commission from the seller of the vacant lot based
on the purchase price of the lot and sued appellant for her
commission on the value of the house, $3650.00e She recovered
a verdict and judgment for $162.50.
We are of the opinion that even though appellant
was not present when the sale was finally consummated, yet
“ghe/the efficient and procuring cause of the sale and is en-
‘titled to her commission, Zllis vs. Dansworth, 49 Appe 187;
‘St ANnviON VSe Potts, 117 App. 80; Cowan VSe Day, 156 ApPDe 105;
Geer vs. Chapin, 165 App. 654. Acting as reasonable men the
| jury could not have reached a different verdict. No reversible
error having been pointed out, the judgment is affirmed.
Wl He be pnt
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_, Sig 04 ogW Bey 00,0288 tod tek edd aiywod od tact oolleggn mie
| ywlestetise sew soiuq ofT 000 608 98H 20% opdt wot eenod aq
00,000,280 xok vlevid od tof baa eerod est Blea ei hoe tna tcoce tl
»otee edt to motdesmwancs Lanitt 4d3 te tneaetq tox saw oekt “A
Hotend fol tusoay ot! to xetlen ont moxt no Leetemes 3 bovtesex
tea vot tnelfeqqe Sere Sua toL edd to eolag easdoxig
berevooer sit .00,00080 ,oemod odt to ontav odt mo motaal
208-S8L% wot dnamybst, fae 4
sasileqgs dgrroctt tiove said moimtqo adt to ots on.
fey ,bolaammanoo viteakt new ofse. odd moxdw aed l
wwe al bon elas edd to eanso yatissote bua. eis
sTSL sqqh CS ,ktrowaid sev alia ,xobeelumoo tod e2 |
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na, f j STATZ OF ILLINOIS.
}. APPELLATS COURT
a 47H DISTRICT.
q
a OCTOBER TERM, As De 1926.
Ny
NW)
ft), <*
i)
q TERM NO» 25 AGe HO. 10.
a Cy ig a oe
un Key & Lh L% Co fea
a eo telhe UU YX et py.
ih ; if vats } / Aw
«SOE Ae =HUBEES, : Paige Or ES
a Appellee, : APPEAL FROM Fey oh bey
wii, : C\ é
a V3e : WHITE CIRCUIT \V.) . 8 {929
j iM 3 : Che, Cry) er *
_ LOUISVILLE & NASHVILLE : COURT. PaO ho) Ny O0-
my. Be « STA re
Re Re COe, . - Pi elle
; : MOpsy
Appellant.
Berry, 2. J» - Appellee recovered a verdict and judgment under
@ declaration charging that on august 28, 1925, appellant had
been operating a certain line of railroad for more than six
months; that it was the duty of appellant to maintain fences
along its tracks, and gates or bars at farm crossings, suitable
i land na? fiatent to prevent stock from getting on the railroad;
that appellee had thirteen head of cattle in his pasture; that
they escaped therefrom and went into his neighbor's ficld adja-~
ent to appellant's railroad; that appellant had constructed a
- torn crossing in said latter field and had placed a gate in its
se so as to allow the passage of stock across its tracks; that
ellant suffered said gate to become in a state of disrepair,
so that it wes no longer in a safe condition to turr cattle and
prevent 2a getting upon the railroad track; that by reason
7 £ the condition of the said gate, appellee's said cattle passed
=l-
’ :
wih TORE, 0 mas,
: aN
pet, SEARING. : yy
<DOLSTEIG aight
“sane etl ah vate eeeab0”
of .O8 DA
A oe “ir am b-
oe é- oe qe vibes we re < iss
fala AY VY) te AAAS
‘ee
RO. got | MONT aARTTA,,
sabih \ MEV0EIO ITO...
~§ A eRe Fidiphe : : etaGs
+
4
Be
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+
—
om
pes
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5, E
ye
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ea Ma we ee ee ee ee ee
= ees eee i
out of his neighbor's field and went upon the railroad track
sand were struck by appellant's engine and train of cars; that
_ ten of them were thereby killed and three were seriously injur-
ed, etc.
Appellant's main contention is that the court should
have directed a verdict in its favor. The andiapatea evidence
is that for two or three years before the accident the posts
were spread and the gate could not be latched; that a wire
was used to fasten it; that wire fastenings frequently break;
that the gate had come open at times. Appellee testified,
without objection, that he and appellant's section men wore
at the scene of the accident soon after the train struck the
cattle; that two of the men went west and one went east along
the track to find where the cattle got on the right of way, and
that when they returned the section foreman told him that the
d eattle came through the gate in question. He also testified
a that the cattle got out of his own field through a defective
fence into his neighbor's field, and from there they passed
through the gate on to the railroad right of way. No one
testified as to the condition of the gate immediately before
a or immediately after the accident. One witness testified that
he saw the gate a few days before the accident; that he went
through it; that the posts had spread and it could not bs
latched; that there was a wire to fasten it, and that he
¥ fastened it with the wire at that time. He alse testified,
without objection, that when he next saw the gate after the
, accident, it had been fixed up. Appellant called but one
witness, one of the section men, but not the foreman, who
said that he walked the track on the morning of august 27th,
and observed that the gate was closed.
The statute required appellant to put in gates at
_ this farm crossing. The gates are a part of the fence, and the
ety to — the fences in repair includes the duty to keep
the gates ze and mequrelyeueyeh so as to afford equal
| dostt Ssoxltot exid ele fcow ban Bion a |
toads yes to aletd bus entsne 2 'taaLtenae a
Bis ode F109 edd feds er. no Leta. nten
socobive Sotogatbar eff . tows otk at tole
? ateog exe tnebioos edt etotoed BTSOT ponds
| | etiw a test pbedotvel ed fom. Sinoe aang. ode
2 sh qitnexpey? agatcotest ext test :
Saal
Senin shit selec ob: bins wotttyieit”
Sno eit ea Lo deta be oie
taxit Boritiges eganttm mtd: _stugbiene edt setts
protection from stock getting upon the tracks at such places as
at other points, C. & Ne Fe Re Re COo, VSe Harris, 54 Ill. 528.
In that case the gate had been left open for a week and the reil-
road company knew it was open. Tnere the fastening consisted
of a chain and hook, which was fairly good, but the cate would
play back and forth with nothing but the/hook to hold it, the
court ssid:- "In this condition iit was subject to be opened dy
the action of the wind or by stock rubbing against it, Cc. & A.
R. 2. COs, VSs Morton, 55 App. 144. In that case there was no
@irect evidence that the gate was opened by the action of the
wind or by the stock, mt the court considered it a fair inference
;
ag it was opened in cone of those ways. ‘here the question
Yew as to whether there was a sufficient fastening for the cate
ana there was evidence to the effect that the gate was so con-
structed that but little foree was required to open it, the court
gaia thet in ell probability the horses opened it by rubbing and
‘pashing ageinst it, C. 3. & Q. 2.2-Cos, VSe Finch, 42 Apre 90.
: The testimony of appellee that the section foreman
told him that the cattle came through the gate on to the railroad
track was hearsay ana incompstente Had it been objected to the
» no doubt, would have excluded it. ‘The evidence that the
gate was repaired after the accident was incompetent but it was
Duet objected to, Howe va. Medaria, 183 Tl. 288. Litigante are
no position to complain of incompetent evidence where they
low it to go to the jury without objection.
Where evidence is hearsay and incompetent but is adq
mitted without objection, it is to be considered ana given its
natural probative effect as if it were in law admissible, Ascher
Bros. VSe Industrial Commission, 511 Ill. 258 # The effect,
ly, of evidence of repairs having been made after an
ace dent, is to operate as an admission of negligence, City of
ylorville vs. Stafford, 196 Ill. 288-291. Such evidence is
to be interpreted by a jury as an admission of negligence,
eS VS. Percival, 152 Tile - If a party is content to
Ss aan oxedd” ous ‘aii i * BRE’ wage’ Ba
“ekd Yo nofios Bae xe beneie! aw edap ay tele |
aonsne tat tis? s te bored Lune taxa ‘galt tag: oot: ait a
oi) paus ond ‘oxen sayae eiedd bo: dro att Benen =
ots oat ‘sot ‘Sntibreat ¢ vive beso stad ote tots
208 Tq gs etonkt “ay sot are ye x te itl ane
Bamos0% aoisess fol tat —- ‘te (io: )
| oat ot bedbetdo eed tt ‘bak dito seiqiitiont pre! ne " |
ead fad) eonebive ea ete wivew i ihn 8 0 ‘
eaw tf aed biennale ase boaheae ott deat Sine
“ iy fre! “Metegacdat Bae werdat wa ’
atl nevis fin boreblaies od oF eb Sk! ssontostee
todoes veld tecieba ‘wal wt erow df %2 be toorte. or
toot te ent? Wisaee Pe sg es 3 3 ss Reatinio® Sabrbestint 12
oe tolte ehem med Fenn wamaseirneshdthenge
let improper evidence go fo the jury, without objection, he
cannot complain if the jury has considered it and given it its
: y natural probative effect. |
| / Appellant insists that its peremptory instruction
should have been given because appellee was guilty of con-
tributory negligence in failing to maintain his own fence in
such manner as to prevent the escape of his cattle into the
field of his neighbor. That contention is without merit, C. &
soe “We ReReCOe, VSe Harris, supra; I. Ce ReReCoe, Vee Arnold,
a7 Tle 173.
| , In view of the facts that the posts were spread and
_ the gate could not be latched; that such was the condition for
_ two or three years; that a wire was used to fasten the gate;
| that wire fastenings frequently break; that the gate had
q come open at times; that appellant repaired it soon after the
, a accident and that appellant's section foreman examined the gate
, @ few minutes after the accident end told appellee that the
eattle came through the gate, we are of the opinion that the
jary might reasonably infer that because of the insufficiency of
the fastening the gate came open, or that it was so insecurely
‘fastened that the cattle opened it by rubbing and pushing against
ite That being trae the court did not err in refusing to
; t, direct a verdict in favor of appellant, We would not be warranted
; a in holding that the verdict is so manifestly against the weight
b of the evidence that it should be set aside. No reversible error
having been pointed out, the judgment is affirmed.
U /
oa Pike ake: twoddaw fell out of oy, s sone re
edt otal elites eid co sq sone ont inorea ot |
40 tltem woud te al wol tnotmos deat +pday hon as BY
‘,bLomna .e7 p290oFafh mr a apse. ee mt: i
Tos, 020 ten00, oad Baw done, tact abosotat of. fon) bs
stay ouit - Bemtnaxe — noLtov aan. fact
exit taste eeLleqie Sf0% fom tneb tose odd nei
We ‘nit tact to faigqe eas to ame ow aatay oat
zo ‘yore! tact odd to epseped ded vetnt video
wernocect oe eaw th dad so nO) on ote, ould Be
: “od paiestes al xo af ai a f08 0 eat 2 ms
botasrre od tose Binew et Bia **, jes
y
g # #
j “7 eS ae
j OF i ee
| i j state oF ILLINoTs. A
a
LS "A
APPELLATS COURT Lip
cf iF ee x
40H. DISTRICT. 4 fe, 25>.
ap, ty LO)
OCTOBER TERM, As De 1926. “hoy fy — Boy
3 exsaye jr
"ERGY 0-9
Xo,
"7
m NO» S06 AC. HOe 2h
Y MODLIN, :
Appellee, t APPEAL FROM
vs. ; «MARTON
VA ARROWSHITH, Admr. etc.,: CIRCUIT couRT.
Appellant. :
‘a Od — rm A
CV AA fe r >of
a “4 sf f - : al |
| ae | hn fine ~
res witli ; oti ne
ak, Soe
ry, Pe Je - Appellant's intestate was a widower, and all of his
dren were married. During the last nine months of his life
the daughters. Appellee filed a claim against the estate for
vices rendered in caring for the deceased and regovered a ver-
f and judgment for $893.00.
Deceased first went to appellee's home in November
» under an agreement by which appellee was to receive $10.°0
r week for his board and care. He remained with appellee until
s 4, 1923, and appellee was paid in full for that period. Prom
> 4, 1923 until August 3, 1924, deceased was cared for by Mrs.
an On the latter date he was brought back to appellee's
1omée where he remained and was cared for until his death on April
ag
The undisputed evidence shows that all parties knew
and understood that appellee was to be paid for his services. ‘The
only controversy was in regard to whether he should receive a
mable compensation or $10.00 per week. At the time deceased
a aE
a sOLONILII TO SPAKE
retOD Searaeeca,
spormterd aad
Be Syl a
OGRE of oh MT $80 TOO Kee hee 2,
. i i | fit
ie a
«SS = GTE ak PE ay Bee Pee wasp BSR UP ee TR ne at) ii
‘ Pee O I Susek wo bis Date bela
meer awh) lh, apa at
MORE TASCA = g .eLleq
i: MOLBAR «| a . gry gat Ne
sBSUOD-TIVUSTO . aqvode etmbA DPT
gine ae, et mal Lac
i) oe) chek t oS be S SEN RRR ERPS ie eee Ae aaa
nike t
eis to ifs one ‘ea & Baw bined ‘st eadtiaxt = - at
“@FEt eid to eddemm cate deat odt gate nce mete
wim So'bindond tii ti on osdiogas 36° dal ll rig ee!
| ’ te eRe meo & betit bottonel ”
x £ WAREZ R
“‘tedneva% ak owed atseltoqe ed teow its
“O06 one ‘eriesss od asw sotfougs ‘io baw" sal hor
“Hida oo LLeqte itiw Seutenes ok “sors0 bass preach id
mest “sboizoq todd 70k ‘ftwt ot ‘biog caw colleqan bas ,
| san <d sot bora sou beesoooh yates Vs toxpah tite & agers |
eteelleqas of toad sinew as rie AOS vette pk it "no oi
_ Lisa ro ttaeh okt and — benae aw ste, saat ag «rede
worst wiki ite tact Sle! ‘eoktab Ss Wesabe 2
ef? .sepivreg eid rot biag od oF a soltemis teas booe
| ihe 8 evieost pisses od tostedw of ase aw Ye
Seesaseh ontd ed? $4 Guar ne 00.0 ab sotdeonsasoo °
s brought back to appellee's home in August 1924, nothing was
id as to what his compensation should be. There is evidence
ing to show that he admitted that he was to get $10.00 per
2k The evidence on the part of appellee is to the effect that
a eondition of the deceased was much worse after August 1924;
that he was confined to his bed practically all the time and had
to be cared for like a little child. ‘That his clothing and the bed-
elothes had to be changed several times a day; that he had bed-
“sores and required mach care and attention. Wo fault was found
with the character of the services rendered. In the gtate of the
_ proof we would not be uncranted in holding that the verdict is so
ratty against the weight of the evidence that it should be
ud 3et aside.
:. Appellant contends that the Court committed reversible
‘error in permitting three witnesses to testify as to what would be
a reasonabl< compensation for appellee's services before a proper
foundation was laid. ‘The record discloses that one of these wit-
sses was permitted to answer without an objection being made to
e question. It also shows that when the question was asked another
witness appellant made a general objection which was overruled.
2 2 law is well settled that when an objection to the admission
of evidence is of such a character that it may be removed by fur-
proof it must be stated specifically at the time the evidence
is offered. A general objection will not reach an objection that,
sumably , , might have been obviated if specifically pointed
: There was no specific objection except in the case of
ene of the witnesses. Other witnesses testified as to what would
a reasonable compensation without any objection being interposed.
ere was no reversible error in the rulings of the Court in the
fission of evidence.
Appellant contends that the Court committed reversible
ror in the giving of Pe third instruction. It is argued
=-2=
abod edi bap guiddofe ets tad bilo enteat. 8 oat rot B
“hed Bad od sadist
| baso? eaw tinal off
odd 0 odste ext mt
ob ban ules moidoeteo oe , dodttw “ovens oa; ‘be
ie a * PA hk hig b)
rectors bexaa Baw nos p0up edt cone fade eworie vals a1 i sot
? LA r eh ke a i et iy
_ sbekasxeve, gen doit 202 iostde Eoxemeg *. cher
aL eR ich Faye Rabe bet ye 5 Sap:
“nolealna ents of fo} tootdo 8 aod ie
ep Eh Se
pei aes
ey pe ao
someb ive ond. int ot te ‘ehtaorttosga tage ay
vant soitootdo na doaot tom thw beget ,
Mes ae ints
ouit ch 2009 ods 40. sonl.ior nad! uh s0%%
PREG } CS NS eurkar On ore
WE a TM es
eldtexeve: ‘bod Stamoo pr lcd ors tats ahaotave
sehen a! aT “ssoRootdeat- -Batss ete0 Lea am
aide A ne PEE SN nt we
eta ‘Bin My
oa
alta
pia
at the instruction is erroneous because it fails to require the
-y to find from the evidence what was a Teasonable and customary
apensations While the instraction is subject to criticism in
ithet regard, yet in view of the fact that the issue was simple and
| sily understood, we ere of the opinion that it was not reversible
or, King vse Swanson, 216 App. 294, It is quite evident that
jury acted upon the evidence and were not mislead by this in-
rauction. The evidence on the part of appellant was to the effect
at a reasonable compensation for appellee would be “$10.0 per
eek, while that on the part of appellee was as high as 342.00 per
The jury allowed appellee about $25.00 per week.
Be ity
: It is argued that the said instruction is erroneous
‘because it told the jary that damages were to be awarded unless
‘tne further believed there was = contract for such services, and
in that event they should allow appellee such sum as they should
a@ had acerued to him under the contract. That part of the in-
sti action is not accurate but we cannot gee how the jury could
have been misled « Appellee, of course, could not recover unless
. e was as contract express or implied. Appellant tried the case
on the theory that there was an express contract. ‘The instruction
. ae
ae
simply means that if there was mo express contract then appellee
‘would be entitled to recover the reasonable value of his services.
fe are of the opinion that the giving of this instruction was not
reversible error in this case. We find no error in the ruling of
the Court on any of the other instructions, If the condition of the ©
4 ceased was such as wes described by the witnesses for appellee,
we would not be warranted in holding that the verdict is excessive.
‘The jury evidently concluded that appellee was not entitled to as
wach as he Glaimed, but that he was entitled to more than appellant
ittea he should have. We cannot say that the verdict is excessive.
Hie judgment is affirends :
4 © Me repaiil eee
; -~3-
ae tasbivs ot kup ei 37
wot elds x xd ‘bolats fon oxew ins vonesive ry moan &
} ey
toorte até at eaw saat fouge xo dog oad me souebive @
ELD edd botxt fuallogws “shod font ad ‘weorgze 3
go ioortent eat | stooxtaoe eRengze sm em vexeds Sa E06
to pmiinx odd nt zotTe om batt of ‘Sale borer |
exit nt mitiheos oad 31 weno Hesateat roxio oat x0 ea
. ey TOR
0 ae
a. Oo Se
STATE OF ILLINOIS i ail as
APPELLAT! COURT ee veer
A) py By SY
47H. DISTRICT. eee
ba ie ae
Cie,
OCTOBER TERM, Ae De 1926. “oy
TERM NO. 41. AG. NO. 28.
= 2
eS rig fi y fi . _—
. fig . ; a
=
Se Fe CATESZ
Appellee, : APPEAL FROM
WSs : ITY COURT oF
ROLLA M. TRESCE, : #$wWEST FRANKFORT, Ill.
Appellants :
Barry, Fe Je ~ Appellee recovered @ verdict and sateaiaek for
$105.69. He claims that the judgment is based upon two
; dies one of $75.00, and the other 350.69. He testified that
he gave appellee a note which included 5120.00 for insurance
on certain premises for a period of five years and that he
afterwards paid the note to appellant; that appellant only pro-
cured insurance on the property for one year and that by reason
thereof appellant owes him $75.00. His testimony shows that
he never saw the insurance policy and that all he knows about
it having been written for one year is what some one else told
hime
As to the item of $30.69 appellee contends that
appellant charged him with that amount twice and had given him
eredit but once. The record discloses that these parties had
a 8 settlement in 1922 and the sheet showing the balance then
ye
NEN eas grees hii
TE ee ees We ee
\ Alyy Oh AS ; Re Bs netgn cate aN ee aah
| : ES pul aiiekeity nig! Pore ere aoe
SS Ro eee: IAP ecm sos sane
a:
$3
bot
SS
a6 98 Oe SS oe Be ee
To'b Steps tial si tanta, cS) fexoreoes siiteeasl’ mt. oy, — ae.
ted) bolLitaod ell. 2G08$ elite oud Baw ,0042%E 2o emp Rams
~otg yliio dnwtlogas sui
moans yd Jacl fae ta8y, sm et wbical eat ah E
tact, aworle yoomitess off »00,.8T¢ mid aowo. iviittadetn
.. trode awond od Lie Jadé Soa qatlog. sonetnent ot, wee. coves
Slot oole, eno ange Jace Bl mney em xo, motdion mend galved, Z,
i
|
| due was offered in evidence and im regard to that there seems
i tc be no dispute. The sheet shows that appellee was civen
| ereisit for $30.69. He makes no claim that he should not have
a
a been charged with that amount once. If he was charged with
4 it twice and credited once and gave his note for the belance
q
dae, imeluding $30.69 we are at a loss to understand why he
- shoula now be permitted to recever that amount from appellant.
. } From a eareful consideration of all the evidence
fin the case we are of the opinion that if appellant is in any
any indebted to appellee for either of the amounts aforesaid,
he has failed te furnish sufficient proof to sapport the
judguente The verdict and judgment are contrary to the evidence
and the judgment is reversed and the cause remanded.
— hee. REVERSED AND REVANDED.
sorts onw eesteqes tend awe. teede yt
eved sor blvode en tadt jabato on genta, oH...
stie Segtade aaw ed I ‘s20n0 seo seat
Bona as edd tol sags rd omy bus om9
STATE OF ILLINOIS.
APPELLATE COURT
4TH. DISTRICT.
OCTOBER TERM, Ae De 1926.
mene ee rs ia =
ee | -
~ he
NO. 434 AG. NOs 40.
FONIA SHIMKUS, :
Appellant, $ APPEAL FROM
YS. : GITY COURT oF
DARD OIL COs, : EAST ST. LOUIS.
Appellee. :
tY, P. Je = Appellant brought this suit to recover damages for
ries alleged to have been caused when she was struck by one of
llee's trucks. She averred, in her declaration, that a servant
| ellee was driving ea certain motor-truck on Collinsville Avenue,
st St. Louis, Illinois, at the intersection of said avenme and
nois Avenue; that while appellant was walking northward and
SS the said Illinois Avenue at said intersection, and at the
where pedestrians were properly walking across that street,
yllee so carelessly, negligently and improperly drove and managed
said truck in that it made an abrupt turn eastward inio Illinois
6, and as a result of such carelessness and negligence, and
ithout any warning to the plaintiff, appellee then and there drove
‘Said truck into and caused the same to strike the plaintiff with
foree ani violence, etc. There was a plea of the general
and a verdict and judgment in favor of appellee.
i
os wiz
A i ‘ a
”, P f 3
2)
+2IONILII GO STATE
T0009 SMALIEITA |
“ve POLITELY 9
Neo ead <A HS@ “eteaoRD0,
ae F% . A i an B, FS Salk Ons "
0s erin
ie rane
(( V3 “a M Me Lec itaecegh. ih Lee Deis
i} te BAY ue a
gia - | ‘ ae ‘
sil ot ; | (MORE atta gg
} J abr ae
ih A Wi iG isto a m0 FEN0O MESO $ :
ind SRP Ty ch : ig
eth nk avagicl ie ae e1U0d #2 rea oy
-" ‘ ig 4 . i &
tot aegenab revpo er: of 0 ‘ehate teguotnd doatrogga -
te ex10 ud touxte asw ode neciw hoes aged. eved of Ne
tnevice 9 fads ioLaneLoab x00 ai bevieva este |
ent ts baw nagdecsieas bisa a ernova stomiiit ‘bios
stooute teat eaotws palilew wireqosg, arrow wisieteobog.
Be oneness Baca evorh yizeqorquit fae Litnepifeen , viasoterae
aoc iret tnt Sisetese suas dqartde ee bam § ve dent ak sont’,
oa ,conegiizen bas seonaye Loxeo, dona te Singer s 38 fae
everh exodt Sng eae volteqae ilatate, ede, Aah seen rs
Appellant argues that her counsel were denied the
4 of making a fair statement to the jury of the issues in the
the facts they expected to prove and the principles of law
icable thereto, That argument is based solely upon the fact
when one of her attorneys was making the opening statement
6 the opening statement to the jury, which must be brief and
6. No reading of the pleadings." It will be observed that
take it that counsel was at liberty to inform the jury as to
ssues in the case, as to what he expected to prove and the
applicable thereto. |
: At the close of the evidence appears the following:-
‘Court: Are you thronch? You are wasting too mach time.
ease could have been tried inside of one hour and a half at
.
'one o'clocks Mr. Costello:- I will submit the case without
Smost. we will go without lunch. The case must be finished
te Mre Zully:~ The Court is in a hurry. Under the cir-
nces, we will have to abstain from arguing the case."
Dat t.0a A written motion for a new trial, specifying the
ints/apon , was filed. The only possible reference therein to
matter above quoted is to the effect that the Court erred in
ly restricting the argument of appellant's counsel to ten
s; that appellant was deprived of the opportunity of pre-
ing her Gase fully and fairly by the undue restriction and .
mitation of time for the trial of the ease. There is nothing
e record to indicate that appellant's counsel were limited
ten mimuies' argument, nor is there anything to show that the
said anything about limiting the time that counsel should
j for the trial of the bacon gatas the remark above quoted
x
mi
oxen
B ri
sect
wt boinah | orew reestioo rodt aud ae
“roo « edt ibaa ataolisce wat a0
vomit ‘Sosiet ‘oot patteon | om ‘w0Y a
PR iy We: AES bs
te Tlad 9 bus snoi snp Yo obtant be
Bene
oh was made after the evidence was closed. It will be observed
t in her motion for a new trial appellant did not rely upon the
round that the Court made improper remarks in the presence of the
It would have been better if the remark had not been made,
at appellant is in no position to complain.
When the case was called for trial in its regular
ler the Court ordered the clerk to call s jury. One of appellant's
orneys then stated that they had just discovered that Dr. NeNary
> was Subpoenaed to appear as a witness for appe liant, was un-
voidably absent from town, that counsel wire tuforued that the doctor
mild return that night and would be available as a witness the next
ningg that he was the only doctor who attended appellant for the
njuries in question and was the only expert witness who knew anything
about theme Counsel then asked that the case be laid over mtil
he next morninge The Court then said to proceed with the trial.
nsel presented no affidavit and did not offer to be sworn to his
: tement. In the motion for @ new trial no reference whatever was
> to that matter and appellant ig in no position te complain there-
4 Appellant saw fit to submit her case to the jury with-
out offering an instruction in her behalf. She complains thai the
i structions given for appellee were erroneous. #e have carefaily
sidered the instructions and the criticisms directed against them
ne of the injury and that she was struck and injured by reason of
the negligence of eppellee. Appellant testified in her own behalf
ma she had no other witness. Illinois Avenue runs east and west,
Collinsville Aveme north and south. The evidence shows that
@ are two street car tracks on Collinsville avenue. Counsel for
lant say that there are = two street car tracks on illinois
bevtoade ed iftw 3% .bevole eaw sonebive oat toda sham anes
ot sogs wor Jom bb snettoage 3 Inixd wen a 70 wo ison brah
esha need tout bast arenes ot 2 “rotted ss e we bisow dT 8
-rebryex ati ot faint wt ‘beriao aew een0 oat sea ;
e' dos i tongs do ea00 +vrot, 2 Leo ov #10. oxid Dorebro 00 Fa
: Cais
“Veattol oat “Saas boror09e tb taut bed went todd hotata | cre
ore eew ,tumktoqas od egond bw 8 ie ‘feeags: of Be
todos odd toad becrtobstE ‘oro foumwos tat utiod aon | tax .
Ha
: ata oF rome ad of sotto torr Bib ‘baa ‘treasitia ¢ on 5 botnneny
Binet
‘eat “rovsadu sourotor ok dened woe a 20 mtiom edt at
~oredt dda Iqaoe ot ‘sok tod os al et ge a cai tedt
ie ght
rh
4 ts Le oie ict ‘
ait by wat ‘ont of ‘onoo ad Siména of 2 wae nettenea oh
od ‘dads ‘anletenos edt tiaded ned at oveamt na 3
“ pibstanes evant ‘ef “-asoomoaxe gro _epitegys. 20% ot : morta 22
wots fartiegi posoorsi som tortie odd buts ‘eb iton eat etd”
[Ted ea A
egekbrs eff at xx0 tom Bt) ‘0 ot duct mn tniue ot
mon |
i 4)
De ot
“coh bo ehlovens eid a mum oe dad? coos tual ) aay
oad oe tolxg ohedieane Sia irda “uietas wo pa ih : 4 :
to noeaes xd bors tat bas sours oa ‘este “tant
aS
PES
Maded wo x04 at Botti tnae “tastloy os .
,} sew bisa Fens ways une vA slomistt nae i tw nese na a
teas awoste eousbive oat _iitweg Sue al = Se
tot feens09 »oun9¥A “eit tvanLioy 2 une om
Roba 0) MORES tow a ohh
atomtiir so ) asdoad Bait ot oe aon exenis
es
Avenue, but if so, the record does not show the fact. Appellant
“testified thet she was on the sidewalk on the east side of Collins«
" yille Avermme going north; that before she stepped off the carb she
“Looked both ways before she started to cross and that when she had
taken eight or ten steps she was struck by the truck and that she
| was then on the first street car track. The testimony on behalf
of appellant tended to show that she was going south from the north-
} east eorner of the intersection instsad of north from the south-
east corner thereof; that she was struck when she was upon the easter-
a
ly street car track on Collinsville Avenue, and that said track was
ten or twelve fect west of the cast line of the pavement on Collins-
Ls
ville Avenues If the testimony on behalf of appellee is true, appellant
must have been in the act of crossing Illinois Avenue diagonally
from the northeast corner of the intersection and she must heve
be en several feet west of the regular line of travel for pedestrians.
“the driver of the truck hed arproached the crossing from the north
end intended to turn east at the intersection on Illinois Avenues
He says that when he reached the point where he should turn east he
"hed to wait for a street car to pass on Collinsville Avenze, and after
4 he car passed he made the turn ad as he did so appellant struck or
wo
wes struck by the radiator. He says he had no time to warn her, that
he stopped his truck immediately, jumped of? and went to her; that
4 was up before he got to he# and that she insisted te him and to
a policemen who was present, thet she was not hurt.
. It is apparent, therefore, thet the questions of
, sligence and contributory neglisgence, were questions of fact for
jary. Wo reversible error having been pointed out the judgment
s affirmed.
Ct palit
| ae a
“SteLlegds. .tost edt rode tom 200i Svooor.edd,ee8 those), emmeyl
wantifod to able.teae odt no Atewobte odd ap sew ede tedt bobth
ede dxso odd tio baggede ede ompied edt. qddtom gniog pamevs
bar ede aetw ded? bee egoto od hetrets 9e.. etoted., eyew sido tb ©
ede dadt Bre dows! ost yd donnve aaw, ote agela med x0 tigte: 16: ad
-Rigded so yaoatised off «aonzd saq soexte. tet kt hai shai. ss
-itwon, edd aoxk steoe gales ser ede dadt wos oF bebmet 4 i we
atvoe ond mort cdrom, te, Bactent moltsaeretut odd to, 7
-retese ed} cogr usw exe xoilw Aootde sew ode tedt ; rooted? somrep
easy Yosvd blep tedt Sua ,oemeva eilt¥eatif{ed mo asett. a0 toorte
“ork ifoo so tuemeveg out 29 oak feae od Yo, dpem fost ovfewt,
inaifeaqs ,oert af eolleqqa to Ligdced wo yronitse? ed¢, TI... a OURGTA,..®
‘lfenoystD oxmevA etonlil gatecote.to, tos edd m2 seed evad |
evad tasn ede bog apitocetodak edt to. tearoo. ee sabi
-eneintnobed “ol Levert to eatl wa frases edd. to, dee. Spe Lee vee
ddrors ot movh putavem edt boloonay sped sost edt saris
eoseeva alonifi] ao molteourtstat oft ta wees att of, Bobaeiat
ed geese mut Bieeie ad erosdw inlog eit feroser of modw dads ayeE
tetle bus ,e.nevA elfiveriifod no ausq of 189, teenie B sor tiaw ot !
~ tomste tnafiegqe 08 $15 oc sa bon oct edt qhag od hoaeeq. m0 ¢
dads yxesi wer of omit on bad oS ayee of, erotather odd yd atgamn
tad pred of duow Sua, tte, Suqnw),,clotalheamt Asa abd beqaosa,
of has mi ot Sesuteat ede Codd ham Cox of toy, oil. oxo ted) am Bmw
stro tou vaw ofe tad? ,dnoveny gaw ode oitog
fo exotsaens ort! desit ,oxateud? ,duemsqgs ef al
“S02 deat fo emoideeup etow ,cosatinan cided aA Lats
tnompbel eat Apne dint i 00: palved xezte eld
RE ain « eth ha ‘
AGN pie 2. Mi TOR CTD aie bunts hig say eee ey ot yy ih
ar yal ee
fees)
ery
biases, Spm IRUR te As vid a a onpai ene Kat Fy
4 : - moved the Coart to find the issues in his favore che |
a motion was denied, and appellant offered no evidence. The Court
i found the issues in favor of appellee and rendered judgment
; y accordingly. |
In his originel brief and argument appellant made no
- claim that the evidence was insufficient to establish the re-
By Xetion of landlord and tenant between the parties. He was per-
mitted, on cross-examination of appellee, to show that while
ing a mortgagee only, he is not entitled to the possession
HY -1- si
a ap St % ‘ y of
i “) xb
STATE OF ILLINOIS. lj 4 Ce
APPELLATS CouR? a JAY
22.5 ” e a ge
2. a oO © et
47H. DISTRICT. Bey Aa es
eH A I
OCTOBER TERE, A. D. 1926. iO es Hi
eo
| TERM WO. 55.6 AG. TOs Ble
; oe P. HOTZ, : ~ Wate Meta ics ee ae A
Appellee, : APPEAL PROM
3
YS. : MADISON
‘JAMES U. DUFFIN, =; GIRCUIT CouRT.
Appellant. :
Re f }
piven
se ay
we J
~or edd dalidated of tessionems sibeaan alee
~1Teq@ naw ef sasidveg cid gosvied. Daas wow nicoucvssin 40)
eX telw bamehiaen Mabel tings 0%,
2a
a , Ab, de i +
RR ay ee re) fy 3 NG ite
i yaer or) ‘q bs oe if ae My ng? ag R R vip
ats igs, Sa Tau BA t fu ey) Me eile yt4
A, Sie Ae ml Rie Man Ura as aN cet ne) TS
eaimexq, edd od ake sat ot
selieqqe Jedd bun ,egeydzom
molsaensod edt of sotstine, fon a “ «
“08er “ A oe
e
SUL aa eer cacae lam
“ito eTvvEtO
ny
- woe rane
; oy shai ae eS . : Ree ay Ae stain aa : an
nmaualianvanaions oa: seerenn cole, neers or
a eA a ¢
Pp ee PAL th Ar ol
seaore0 fi ‘
i
i.
Si mh ta wd at
By
Fn he a | ie
Gets
Neh
Sop
Ay
iwi
Wied
mes 2
Dot the premises in question, and that appellee, not being en-
titlea to the present possession of the premises camot maintain
By aes action for their possession under the Forcible 3ntry and
Act."
a Appellee answered that contention by citing authorities
4 i ke the effect that a tenant cannot dispute the title of his land-
:.: either by setting up title in himself or « third person.
insists, for the first time, that the rule does not apply to
ae
_ this case because the relation of landlord and tenant never
. arecovery. When the complaint was filed appellant had
‘failed to pay his rent within five days after a written notice
and demand was served upon hime Appellee was entitled to the
possession of the premises and the judgment is affirmed.
GOe Leptin
=f nett ed Joa ,eslleqqa Jadd na aneteubeittid wt oe teeta ost? to
riadot an. Jones goulmexq bit ‘to notasoneog teenety edt of boltit
Brae wet ‘efdtexot oat ‘obes: seleeseood thedd rot haces os
abitirodiod guldle yd aotdnetuoo tant. bozewame eetleqga :
boat aid ‘to efttt edd efvqeth tomes tuenet 2 tadt tostte ed? of
inoxeq Bett) a xo Viweutd of ofbi4 qn Gabdill es bene eee
trd ,wal edd el dose tedt atimbe tualieqgs tela Uger ga at
“Se ylaga ton eee efx ont tat? emit dexkt ot Sek Paes
tsvor dnaned bra brofbuet to mottelex att eammood ease tat
oft Botobiesos ylivtews ovad of eveisaeq oft ainsi’ Sosaize
bad teatleqas helit aaw sichisbiall: edt sod’
eoison nettinw @ telta ayeb evil abitiw gxex eid yea of pottst
edd of beititas eaw eelleqga uid noqgy bevies saw a al
bewr lt te at faaenit end Sa esomsehelinn to tio
ne paw at oak iD ah ane AM a
See: RN, RTS
é tea Ramee s
Hive
Se ae SS RUC “e PLOAy Dia hE A 1 RY Sb ehh
ASAE: AA EE Tite a Sle hang x i
Bah a8 ail Ee gta OTE Ae aim eaetaar’ RRA Maange ti Hah rs :
RMR rh ae Ss oo arto UL crs a ut init ohh’: sitar: woe 4
pA ice lPpani rg) Sioa Aye site ee aR ANA” CREAR i aha eae Da, Roary
i Wie hs ee ame ee mig i es! Mig ERO ea ahhh Se
ON ah BRAS CRS Ai ARE vidi, ae ono rty ; ‘
Biase A ahd, MRA mates acs wile ek Spoteeey: oan
Lancing, uted Doky, | Raa n anata a inl ni hes we Loe med Sante. ae on,
Kua Dap tpsenene eR aNd) Raat ane ei fan HA Ae Stat sberguacneba aN yt 4
3
i: mm: nal
f ee oe "eraraqenetene™
f STATS OF ILLINOIS.
APPELLATE COURT
47H. DISTRICT.
OCTOBER TERM, Ae D. 1926.
PERM NOs 57. AG. NO~e 25.
ad ee
& “i
: BA ge 7
i <e oS Ds
Kid 4 cf 2
Me Ws COCKRUM, : ea Pl
Appellee, : APPEAL FROM 7%, 5/ ff &o, ie
: : “IIa £) = ia
VS. : FRANKLIN CTAd
: Oar,
CHARLES GUALDONI, et al.,: CIRCUIT COURT. “B55,
Appellants. 3 Weis:
? e 5 hea
Ret A. @@R
Barry, Pe J. ~ Appellee was the owner of a thirty ecre
tract of land within the corporate limits of the City of
Sesser, Illinois, adjoining the switch-yard and tracks of
the C.B. & Js Railroad Company. In 1921 he sold the
land to appellants for $9,000.00. A portion of the
purchase price was paid in cash, and notes were given for
the balance, all of which were paid except two for 32,000.00
each. They were judgment notes and appellee took juag-
ment by confession which was opened on motion of appellants
and they were given leave to plead.
Appellants filea the general issue and also
a special plea in which it was averred that at the time of
the purchase aha as a part of the consideration therefor
appellee agreed to extend Jordan street across the tracks
and right of way of the railroad company; that relying
upon the promise of appellee, appellants platted the said
land into town lots for the purpose of selling the same;
" that without the extension of said street across the said
“alien
-asvoo ssa
ae,
Th d sai
i ‘
Hue nds
he r
yi r
a i dot Seams
Ps =<
ereeet waa os +8.
4 ope era a to sean nese abn » seo
an
Bee tine one, coimstie
by + Si
Bee wr ont. ‘Sion. od aser at
Ook “ett to bitoni | A
,
My
a
-
ilroad tracks the said land was of no value except for agri-
i ealturel purposes and that for such purposes it was only worth
$4500.00, etce ‘To the special plea appellee filed a replica-
ion denying that he agreed to extend ssid street, ete.
a Yhe trial resulted in a verdict and judgment for
$4,000.00. No instructions were asked on either side and for
gome reason the jury allowed no interest on the nctes. Appellants
the prime of life. They claimed to have a verbal agreement -
ith appellee in regard to the extension of the street across
the railroad tradts at grade. Appellee testified that at the
time of the sale he did not agree that he would extend the street,
bat informed appellants that the railroad company had purchased
‘other land from him and had promised him a crossing but that he
did not know whether they would give him a crossing without a law-
suit. All of the wrties were presumed to know the law. the power
to extend streets in the cliy is vested in the City Council,
Cal aghen's Ill. Ste Ane Che 24, pare 65, cl. 7. Under section
68 of the Public Utilities Act, appellee could not have the
set extended without permissioni: from the Jtilities Commission.
the railroad company were willing that the street be extended
cross its tracks, appellee would be powerless to extend the
eet without, the’ co-operation of the City Council and the Utili-
es Commission. That being true it seems a little strange that
ellants would rely upon the alleged parol] agreement with a
over eighty years of age, and pay 35,000.00 in cash, accent
—2e
visto | medd erom Baw dstioves ,slar odd to outs ond oA
Bune sonsiieqxe to mom suentesd exrow edusifeqqa Sne ens te arney
Inoheerpe Iadvev 2 vad of bémtefo yoo?” setil “to ‘emita odd ai
“geores footie oft ig ooisaedse odt od Biegot nt eslfeqaa saw
* pdf Ja Sade ‘Bortiiesd eellecqa .cbary és ede? badet tox ot
~teotta ead Bache ‘Binow ed tedd sore Jom bb ed ofae oft to omkt
Bevedoteg bat yanemoo Aéotiet odd Jed} stneltecae semtetet tod
‘od dad dud vatesors mtit Boatnorg Hed ins wld mort Biel rodte
wwal @ euodéiw putewtite o mid evty binow youd veddoiw word dom Bib
sewog od? wal oft worst oF Semmteng How vbttiay' odd te LEA othoe
| Ptomse9: wito edt mi Sotaey al YIko ent it atesate ‘Siterxe of
Nolisee tebat .V .f0°.88 sxaq JAS cdo mk oe EET ‘a Minige L680
ache one tone bvctgul assis tlgciiam olidet edt to 8a
“edt Bredxe of eas txowod oe bluow Mp ot yk ett eaotos
wifidt ead bax Lionped ydio edt to scan toonte
jadd egnante oft G ambée 9 opty Sated dant’, apbettinasp woke
‘g détw daomde'ngs Lotte Segelta ‘elt noah ba tars eoniiees
“fqe00a ,deao’ nt’ 00, 2000.8 -— tne ee
Pig
deed and take no steps to enforce the alleged contract until
hey were sued for the balance of the purchase price.
Prom a eareful consideration of all the evidence we
re of the opinion that we would not be warranted in setting
de the verdict of the jury on the ground that it is se mani-
estly against the weight of the evidence that it should not be
¢ mitted to stand. No reversible error having been pointed
qu . the judgment is affirmed .
he : . APPIRNED,
~s
cn
re bin so 44
By hs ie ms a 2 ea at : “ :
cst ial ae shrrthn Pe Aleks a4 !
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eae ee Bae ae Sai tena! de we et te Saal aad ee, ane
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Pat
S feey 00" SATE OF TLLINOTS.
APPELLATE COURT eit hy
Li pt Beat Re
4TH. DISTRICT. ie hes [2)
Pre, Bee
“449 i
OCTOBER TERM, As D. 1926. WW. eo?
OG ih ae ‘
EhK op yt | 1) .)
iegiyan?
ia i NO 626 AG. HO. 4e
iRISTINA BOLE, 2zecatrix, stce., :
Appelles, 3 APPEAL PROM
VSe 4
: CLINTON
ALBERS, ‘
Apoellant. t CIRCUIT COURT.
6p q ¥ R ao Pa “Ky
aG4T1.A.661'
her husband, Henry Bolk, alleged to have been caused by the wrong-
} act of tee appellant. Her declaration averred, that, on
bruary 15, 1925, eppellant willfully andi unlewfully assaulted
and beat Bolk with a chair and other wooden instruments and with
s fists thereby inflicting bruises, wounds ami injuries from
ch he died on Yarch 6, 1925, etce The trial resulted in a ver-
end judgment for $1800.00.
Appellant contends that he was charged with murder
i insists thet the Court erred in instructing the jury that
lee was only required to prove her case by a preponderance of
evidence. If an indictment, containing the same averments as
declaration in this case, were returned against appellant he
very promptly move the Court to quash the same and the mo-
, would be Allowed. Malice is an essentiel ingredient aaa an
etment which fails to aver that the killing was with malice
ethoaght woild be fatally defective.
~~
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NOES TaRgtA
HOTWIND
.tevoo PICOHTS
‘YT Oe: @ Fic big LS
BEE ay ath Nat
In a case of this kind the cause of action is the
‘ongful act, neglect or default which causes the death, Crane
Coe & TeReRe COe, 255 Tlle 2593 Mooney vs» City of Chicago,
259 Tll. 414. ‘The wrongful act charged in the case at bar is an
sault and battery end appellee was enly required to prove her
e by a preponderance of the evidence, Miller vse Balthasser,
Til. 302; Burgiel vse Aniol, 218 App. 466. To entitle Appellee
murdere In an action ex delicto, if the plaintiff proves
enough of the material allegations of his declaration to make out
‘a cause of action he is entitled to recover, even though all of
‘the averments are uot proven, Postal T. + Cs. Cos, v8se Likes, 225
mi. 249%
Appellant did not request the Court to instruct the
ry that appellee must prove her case beyond all reasonable doubt
and the instructions requested by him fairly conceded that a
eponderance of the evidence was: sufficient. That being true,
is in no position to complain of the court's rulines on in-
structions in that regard.
4 Appellant argues that the proof fails to support the
de eration, that the verdict is contrary to the weight of the
evidence, and that it was the result of passion and prejudice.
Appellent and Bolk met in a soft drink parlor at Breese, Illinois.
client wanted Bolk to pay for a dog, and Bolk said he had al-
dy paid for it. Appellant became very anzry, swore and used
languages He seized a chair with both hands, lifted it and
sgered toward Bolk, who was seen by one of the witnesses to be
Liing to the floor and appellant with him. During the trouble
a city Alderman who was present, told the bar-tender to stop
the fight. Appellant said he was going to get Bolk and the bar-
der told him to not hit him and to behave himself or he must
lee ve; that the bar-tender told him he must not do it several
eSe The bar-tender says he grabbed appellant and was trying
to keep him off Bolk; that he held appellant from the time the
=2= j
nail oxox of ilepes vino 2 eotteate. yr wrotiad Baa i .
,ressadd Lat eaevy tellii ,sonubive ond to soitare bao qoxd 8 we
eelfeqqa ott ttme on 200% Th Bis fo tnt ay Le Kyu ince 2 in
wiling asm y dual leggs tans ero os qikesooed fom ea ak Bhi es
- sevora MLIntole oat 1 ,otoifeb xe smliea as at et0bt
Pa, exten of no LisiaLoas ald te aa ttagetta Intustan oa aid
8 tot philic cet per setae sn salina
sent jaied Daan efagtolt ive, Sew, pened tne. Pt 39. QOU8T
~nt re punt Lex er seme ott. to Ehalquoa.. oe fo og os at
‘ oper, aad at
est tronane | of altot 100% ost tase noupas duaktough
“eat to Sig iow odd ot greta. ad tohbrev eat. todd, «BOR ta
| sootbut ore Sa 10 Laas 0 Sivoes ost Coad 3h todd, baw 294
ouhomzttt (928 80ne dad soltsg anich flog « nt tom atoe, bas
ois fad ad Stee Atos Sas 908 8 Tot wea. oF Tine Sosaam, tom ite
boas bus erowa Tre Nrev. omgoed ARLE adh mt pia hs
, Sas i Botte ahaa, hdod at ie siesio ® bexien of »epengr
od ot eosaend tw eal %o, ano yd e08, Baw ain EOE, bis nt rn
eldnort esd galt wslsl ati ina fLequa ban. ° of
gore ot rebiotrod ast? ‘Sfod ,tnesezg Ber ow some |
=e edt bre xo top.¢3 paloy gen ed Bigs IuaLiogas. of
tena ed to ‘looms oveded | of Hows. md. Pee pigelipinng hin
fexvever ti ob don tana ua mid bfot rebret-tad edd stadt s
ond waite atopibes autteaa: ice a pHfoe 320 mis aon |
man says that he found the policeman about five hundred
from the room where the trouble oceurred. He also says that
he returned with the policeman Bolk accused appellant of
g hurt his shoulder and there is no showing that appellant
ed to that accusation.
While no witness tostified to having seen appellant
ike Solk with the chair, it is quite apparent that those who
e present were friendly to appellant anid the whole situation
such as to give rine te a reasonable inference that such a
w was struek, There is evidence that appellant slapped Bolk
that appellant stated a few deys later that he had knocked
k off the table. Many of the facts aforeseid are undisputed,
is the fact that Bc0lk complained at the time that appellant
t his shoulder. | |
The next day the doctor was called and ean X-Ray
closed that the head of the humerus wes owt of its socket
the bone was completely broken off. An operation besame
sary and although all of the usuel precantiens were taken
i’ was followed by blood poisoning from which Solk diede Appellant
| led three witnesses, who testified thet while Bolk was at
“hospital he told thom thet his condition was due to a fall.
In the state of the proof we would not be warranted
‘holding that the evidence fails to support the declaration,
that the verdict is so manifestiy egainst the weight of
ue evidence that it should not be permitted to stend, or that it
1e result of passion and prejudice, No reversible error .
g been pointed out,the judgment is affirmed.
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Term No. 22 Agenda Noe Bl
APPELLATE COURT OF ILLINOIS,
Fourth District: [pp ih zs
Mp AI ale 8
ee eS j fe aes Le (0)
: me
\ Sig,
OCTOBER LERM, A. v. 1926 Tah ic
| “gor A)
aa Ds reata e
Mei ei?
ROBERT BSELING, )
Plaintiff in Error, )
) Error
-vs- ) to the
‘ ) Randolvh Sounty
JOHN PETTY, BPAITH PHTRY ) Gircuit Caurt
and A. J. WYLIE, )
Defendants in frror- ) 4
Fea ma A ha i ~
ee eee ee
Plaintiff in error filed a bill in the circuit court
of Randolph County to the September term, 1925, in and by which
bill it is averred that on Harch 4th, 1982, plainti?’ in error
recovered & juigment in the circuit court of Franklin county
against vohn Petty, one of the defendants in error herein; Dr-
Evan ¥. Petty and one Louis Penozzo, in the aum of $2,188.91;
that seis taba to the rendition of said judement, the said Jom
Petty was the owner of certain real estate described in aaid
bill, locatead in Randolph County, subject to two certain mort-
cages, one for 42,400 and theother for $400; that on March 7th,
1922, plaintiff in error caused an exeaution to be issued on
said judgment to the sheriff of Fran'lin county, on which a
return was made, “Defendant not found in my county, execution
i
AMS Cc UL CEAaT AC SY cia oA
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t 4
: fone es ‘ae
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ees de yy iy ne cept ehelG Mba 5, eee ae ry it Ce,
- i. te CEA: PAR Dhak SECRRRERR OF BRS et esenaty +0 09 ye
ow oo ai “ase UES te! apie” Os
alls gus aon Sree Mek oh Me So ie Mae Oe keane aiid om
e ne RMR eile eee eesti ap ada boat Rober teil ‘
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es hs ots Hee pane ave bi va
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Mi eachyaaaine st RY bs mn. agit ah ia ae f4 ih ESM it Map i ’ hae ok
: Me ee ae of ‘edoaloe igen Ae
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in a Pa Pa aie
Ra hy
Prem e Be Set gi Ra: omctess shes RR hy Liem en ona Ar 4
tank. wpe eans ne ppt nerstagioy bist ohndk i ‘Mae. at
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GE Raa AMARA SE Ui ak! TR ay ga nS SRR ane uee ae ite Hequd tet hei f
Fite
a el
Hien thos to, ey ot ys & i of aera ay sath apd aut 7
iis
donde ‘yd poe ot caset” ‘eve! redtesaee 69 08 eames aa ee
‘ Brae! ye wisael'¢ his coats \ , re 4 Y
y a oe iftd,
Keay te ik
OTS tt Ahiatola. der’ de dowsu oo dad sid be “ 30
bitte Chee’ ri th i
? ey ash
f
rane Ti iaeeia 3 30 “0” he. eae’ ay ~
“10 aptened Sore’ ve eooalivete Je. bead 40 eho,
Vib Aalb "sé ‘eeu idl GF (aeebtell efile se ties UI.
orotate ot Snemiit fixe 8 Wetii bes Heaps ei a
| bia mf bediacneb 3) we tas aiadatse ge oer o F ©
~tr07 atetree ons of soetder rvoued dg f¢ boas Moe
utgs HomsM cro: yrs he not sede : cia F os OC
not satisfied." That on July @rd, 1922, an aliaga sxecution
was issued to the sheriff of Franklin county, and 4a return
was Made thereon: ”
Jot aerved, defendant not found in my
county." That thereafter, on August 29th, 1926, plaintiff
in error filed a tranacript of said judement in the office of
the Clerk of the circuit court of Randolvh county; that on
gaia date an execution was issued thereon to the sheriff of
Randolph county, which said execution was returned on Sep-
tember 3rd, 1925: “No propartv found.” Theat on May 23rd,
1921, prior to the date of the rendition of said judgement,
"but after the indebtedness for which said judement was render-
ed had been incurred, the said John Petty made a pretended con-
veyance in fee of the above mentioned real estate to A. J.
Wylie, another dePendant hereinafter named, for a pretended
consideration of $1.00. ..... That the said convevance was
not bona fide, and was not real, but was a mere sham and was
made with» the intention of defrauding your orator and the
other creditors of the said defendant John Petty out of their
just demands. ..--. That on the same dav the aaid A. d.
Wylie made a fraudulent and pretenied convevance in fee simple
of the real estate hereinbefore described, for a pretended con-
sideration of 31.00 to the said Faith Petty; -..... that the
said premises are now held by the said Faith Petty, wife afore-
said of the said John Petty, in trust for the said John Petty
and for the uss, enjoyment and benefit of the said John Pettv,
and for the fraudulent purposes of preventing a levy and sale
of the said real estate under and by virtue of said execution.®
Said bill further sets forth that the said John Petty
is a man of no pecuniary responsibility and is vosseased of
little or no property other than that he fraudulently conveyed
to his said wife, and that the said John Petty "is not possessed
of any goods and chattels above his exemptions, and that he has
no personal or real estate liable to levy and sale, except the
;
4
K
nofduoexe watia ga S800 (bee etut ro ahaa “.portekyse dom i
rite A boa ~rdonoo gildnes to Wicewke eft of boueet caw
| yor ort bereret ton tneboe et bovies Gok" gHoevents init an
Whintafa ,~ReCT .ddeS secaud oo sot tsotats ted®, ".viavoo
90 paren. wit mi trore bel nfse te talvosnse yd & Bet PP ow nk
no teadt iytenmo solohored 94 ‘toto tiwanpo edt to arefo edd }
Jo Ptisede. eft of Meateds Darec! Rew WoPrduoeze ms etab bier
ages ao bansudes esw ontdtuosxs ipa doidw wena defober at
“a aes wah no. tant "food vereqaay off" 2 ORer DAP tedmet ia
adm but bt ae To pottiiver ef 20 ated, esis of song , TSO:
~ Tabor Rew towne biae doidw 10% seenmboidebat eft tedts gud"
108) babreterc & ebem vite ool bree oft ,bersyvort) need bert be
‘ ys of oteasece feet bene timem eyods: ect +49, 0% oh sone
bobooserg Bey borer a one? tnelnetel sedjoge ,etiyy
Raw comavernog rane Ot SedT «as. 90, 4° eo AC MSE ane
5 ici od don
ese bre mats ere paren tud Fae tones aa bye qebtt
eat. 7? Tosene TLIO’ at boueriob Jo sottretat eddtdtiw wails x
sheds 30 ee waeer sot snahootes oe ent to atos thes, xodto |
vt cA Bisa att dei MRS: ies co seer amb nt -ebosued teut, Paap i
lhl e04 at eocevevitoS bebret eng’ bets duel ou burt & obs eliy® iy
“H09 bebtotona & 30 cbedtwoseb pipledatoved etsipe, teed add ig) Ate
chan Paden reedot AdtoT bias add o4 00,1 30 sottaqemhe, —
cast et iw prste? 1a brag odd we bf ert, Foe. P30 BORLME TE Od fey
vtter Noy Btae act mot sense af eiaet attol bieg eds, 30. bias. |
19909 mgt bier « costs Be Pened bs soomyotre, ~enu echt. 02, bee. )
one one wel & andtnevens Jo eroqtug Jtrolubuert, etd. 193 aie
"eno Hyoene pres 40 ently nd boe vob chatabes, jeer biee obs \%
vttet ndot bier eds tenis d3n09 Bt ot: agidaey, IL td phag, , ide bet
10 Beenesect wt ire fore Jd2 enongen. yar AUST (OO boy Rei fay:
boverane YE gmotwbues, on ted neds nette, yanegosa 2, Wothttln: ‘a yo
| beanorony the i voted dot bie, ont tees, DGS et tm, DE bie 3 if ot "
ty Ha it hey
ned of ted Bers cen Homans att ovo, PL e, dats. bog eboos, ras
Ee ha MOA '
ants trsoxe 2 af ee pas vrol vee efdatl sdegro fgen ng Kener o8..
bs » 4,
pee eRe a arate abe |e aE ee
rh
premises above mentioned," and prayed that the anid deeds above
mentioned be sét aside, etc:, and that said real sstate be made
liable to the lien of said judgment and sxecution.
To said bill, separate answers were filed by John
Petty, Nis wife, Faitn Petty, and the said A. J. Wylie:
The answer of Paith Petty is to the effect that said
premises were purchased with the money of heraelf and John Pet-
ty, and the title to ths same was taken in the name of John
Petty; that a mortgage of $2,400 was placed on the sams to the
Sparta Building * Loan Association to pay for Certain buildings
erected on said premises and for other improvements made on
said real estate; that thereafter another morteare of “800 was
made to said loan association and that the proceeds of said
S600 wortgage were turned over to John Petty to reimburse him
for the <oney he had placed in gaid premises; that the dues and
interest on said nortgages wore all paid by the said Faith Pet-
ty, and that she #&as the equitable owner of said premises, and
that the said John Petty, in order to place the legal title in
his wife, Conveyed ths same to the said A. J. Wylie and said
Wylie conveyed to the said Faith Petty- Said defendart in er-
“ror specifically danied the allegation that aaid convevance wad’
made to her as @ sham and for the pvurnose of hindering and de-
laying creditors, but averred that the same was made for valu-
able considerations as above set forth. She further denied
that she had any Knowledge of the indebtedness owing by her
husband to said John Musatto, for which judgment wae afterward
taken in the name of plaintiff in error, assienee of the note
on which said judgment was taken.
The answer of John Petty was to the same effect as
the anawer of Faith Petty, except that it does not go into
detail quite so fully, and does not aver lack of knowledce on
the part of Faith Petty of the indebtedness for which said
judgment was taken-
>
ered a ebaeb brow stit fois beybrg bee * boro tte ear evods pettmetq !
i siniek ‘onl otates f wer bist gedd bon , oth /ebita Soa’ ed” Hono tive
Leubdaoss bos yao tor ‘bise % etl ets of” eldatl
into’ ve belts eIev stewscne edeieg oe hake ‘pla lt PR
vertye ae RY bise ‘ectd bos ,ytted deiet (otte ert sti
bise dest ieee ods od ef yite9 ad Pst 46 owes edt ¢ oy
= $09 onot bea 2Leorod to venoc sid ntiw besed day: atew dade:
etal 30 ames yer aey ‘nelad paw pam, edd od slstd etd baw ys
arid od “em ae odd 0. “peoaiq. eRw Gon, 86 Jo Gigay dvons | 2 sade” ‘yeted.
one? br tus ntednes “04 vag ot aofdatooveh néod ¢ adrorrud seemed es
Rak: ban stoneveran! madd 10? boa eoeineng biea wo “fedoerte
wa “pont 40 ean tom satitons: toNaovadd dard :otesae ‘Yaot bike
bt ‘ae Ao abegserg edt Sactd ‘hea ‘nolsdsiooras “asol- ‘bias’ 6° Siam
ae eanudnion ed ytage eufok, ‘od ave bend erew epasdaon “Oong
toe newb ad sects peveimeng blew ni beoala beet ‘et ‘yond etd ‘0%
Dhan a visits
~t6F Ha hon eats one ed bees {lb -eew vena trom bisa 1 ooo Paha
ee epartsroxe bhae Pi reste ‘alded ine ons aah” ext dane bas yt
nt sitit Tegel arti ae. ba tebeo BE vd tod fiiol bise ef Seets
bres pee ab tet Ae 4 (Dy ont ‘of omek end bey eveon (ou etd
=F a at trebrotoh bre s9dse% dian ‘pian acid’ ‘ot Bayevdos’ oily®
bias b ccigihdubaniaha bran ted Holden's at? betneb viteot tosge fox
ah bees metabo it to eerie: Gis ols “bieiis vatleclal “mele a ot ‘eben
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~utey 0% eben man smae, oft seid beoben ud .etod bess gotyal
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Batre nos tar ona Sedat: dae ‘ovods as erotdetebtanod” elds
is
brinesatte eaw toon dottw “403! cod teenit
“98on ons a0 sana tner rome ot Ditniela 40 enea eft at” ‘aie
Hh | ,
aA fost oman ent ot Baw eddes eae “90 rewarte este ti Sey
Fa use id ORF
bise aoe ro? ‘eesobeddebo! ‘edt 20 bapsachourips: ny) seg ents
wm pT ots A
san tah de oR Gms UR a it de a Yeo if iake'ss - wore) ae
rat vd. poten ecsntedcohih wt he baila wos bed or ifs
‘ sieved eaw toeusint | “plea dolde so |
“ote! om ton pike a Deda gqenne. vated ‘MS EBT to "etielkiene ° on
te onbel mony vi foal rom. goo Nicosia bows eel tud be) odtup trader
—
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Replications were filed to said answers and the cause
waa referred to the master to take the evidence and report the
same to the Court. The evidence was takzen and reported to the
court, and on hearing the court found the issues for the defend-
ants in error, and dismissed the bill for want of equity. To
reverse said decres, this writ of srror ig prosecuted:
It should first be observed that the renort of the
master and the certificate of svidence do not include all of
the evidence heard in ssi
ad causes. <A large nomber of the ex-
hibits which:were offered in evidence are not included in the
master’s report nor in the judge's
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be Certified only by the clerk. The record also faile te tn-
GClude the judgment vaterired to in said bill; in other words,
the record affirmatively shows that neither said judgment ror
the transcript thereof filed in Randoloh county was ever of-
fered in evidence. The failure of ths record to inelude 411
of the evidence, and especially the jud-ment which is ths basis
of this proceeding. would warrant this court in affirming the
judgment. However, we have deemed best to consider the case
on the merits, a3 counsel on both sides have treated the case
as though the record were in Condition to warrant such consid-
eration.
There is no svidence in the racord provine or teand-
ing to prove actual fraud in the making of said conveyances,
by virtue of which the title to the premises in question vested
in Faith Petty. It has uniformly been held by the courte of
this state that allegations of fraud against creditors ina
transaction of this character must be established by clear and
satisfattory evidence. :Bonnell v- Yilder, *7 111. 727; Bowden
ey
v- Bowden, 75 Ill. 143; Pratt v- Pratt, 96 111. 184: Schroeder
v. Walsh, 120 T1l. 40°.
The evidence on the part of defeniant: in error Feith
Petty and John Petty is to the effect thatJonn Petty and Faith
“
en Geo “ate hoe eyawore bP ae OF belt? erew ‘yokenemre de “pale Radiata
edd dooney bose SoaebPve se effet of ahte em ott oF her eeey Aw
edd nt besroqder: Bye wedE? paw “obras ive “edi “9hude ede oe onan
bmssens ont dot Severe! anidewey BHWGe ame: stritecdt fo bow .taroo
oT swhtuie 20: tokw aot TTTd Otte ‘bopbbueth” bud .roaet wt ‘gine
» boteseaor ot jTorse To tive aide Jeeroep’ abt ap SeTtevet
‘vletd So dencet) ett tet r Poverpado 64 tewbD Bruce FT! MON
to file -ebofori ton ob atnebive oteottitrao! ots bee Yetesm
LS pe vodtt Mecdaditer oweT AL? Sadao beet oi Boat” Someh Ee Bete
edt pe hebulont god sta socvenive of bevetttq aréw dotdw ag febdt
at geovsed tud pataoltrtees “at asbup aed ‘arl on bg og WES ae
cat OBE et bey Carew pase sat” Sebo ldad Wd plas Bers feded be
eeborae sottateP iti ftd bRee at oF petaeed “siding buL “ott ‘ohuts
ngairy > tere Bark! ofipr istertl fom Utedt Svode vPorr sent? t4s bacder vaay
ineethe ewe leony tdies ‘deTebaad ‘af batty Yooetans ‘s4Pa Seemed | ent
fie ebtifankeot Brotern oft Io eaht ta? ent”: Loonéhive al
etetint ont: we her tche Cacideritinie’ orth WETaYCodwe Hts lhGmaNiye ate ae
cot McEMT PT oY S400 ett godttaW Bigow .getdeooenty wind Ye
@uiao ert rablsaod of Jrod Bemesb eval sw. tevewoH” Since But”
whtenioo done doseew od dotPP bios ‘mf Stew BXbosy ott diebortd we
wi ee ee oe
eheet WR! ve breed bynoee oh Wi eoWebive on ap Svagr > 7!
eneo oft atest overt mabic tod no Tt secuso es gad
Sn duseapeiubittgan Hier Fe entities aff of Berert Tautoe ‘evotd ot or
betery ‘neMisedn nr? neslireday "ed r” ‘oF PLHP Ged dope’ eet ae
hes oat ween eat we Dhert (weed efnrathow wad sp hale 3
par psc Ebase tretene Bubwt 90 e0OFieeolTe datf etede ebay
fort westo yd Bedeifdates of ten tedcpradd! phe 90 We Ei obeweRTe
gobwed er NT TA (ebriw. wv! Fi eatiogh Vesoetitve: Bote! |
pebpentioe svotra ren ve (syese tw ages veer acca io
a, ee Pe 5 a eo eee
co Hae
Petty each contributed #425 on the purchase of the vrevises in
question; that thereafter a mortgage of *2,409 was made tn the
Sparta Building t Loan Association to pay for certain buildings
and improvements made om said premises, and a second sortenge
for $800 was made to said loan aseociation by said narties, to
reimburse John Petty for the funds he had contributed tovare
paying for said premises, and that all of the payments for dues
and interest on said mortgages were paid by Faith Petty-
This being the atate of the record, the alleration
of actual fraud in the making of said conveyancas is wholly
unsupported by the evidence. CGounsel for vlainti?? in arror
contends, however, that whether or not there wae actual fraud
in the making of said conveyances, that their’é6efact wae to
hinder and delay creditors, and that therefore such convevancen! |
would be fraudulent in lay-
Before a party iG ontie ted to reliaf in a case of
this character, it is netessary to allege and prove a transfer
which is in Pact Praudulent as to creditors, or i? the convey-
ance is a voluntary one from the husband to the wife, that the
judgment debtor did not retain enovgh money or proserty to ray
his debts. Dimond v- Rogers, 203 I11. 464-493; State Bank of
Clinton v- Barnett, £50 111. #12.
Plaintiff in error further contends that, inaamuch aa
the execution to the sheriff of Randolph county waa returned,
"No property found,” that constitutes prima facie evidence of
the insolvency of defsndant in error Jnhn Petty. That state- .
ment is correct, aprlied to Sertember 7rd, 1997, the time of
the return of said execution, but it is not proof that on Mav
25rd, 1921, the date of said conveyances, said Jonn Petty was
insolvent. Merrell v- Johnson, 9F I11- 224; Bittinger v. Kas-
ten, 111 Ill- 260; Paloon v- \icintyre, 119 111- 292: State Bank:
of Clinton v. Barnett, supra: In the latter case, the Court at
page 518 says:
opt pesimesa. add Jo seedatuq, eft oo 2M besudtadgoo dose yiseq Hs
eft o¢ che ger 00D, OF %o/ exendnom a. vas teoneds tant, iootseoup
anntittud vtetseo cet ver of, mobtatoonaA god £ autbhiyd sotage
espe tao breoen © bra: sertnetg biee, co eben einemeverqmt, bas
ot ,patiran bhae yt colt ahoorps ceol, bisa od) eben, eaw OGBe, aot
primes Letudtdtneo bat ed shout oft, oo yited, oot, earmdaser
verb) tot. steenved..6at) Jo [Lea cada, bos bor Emerg. bise, 107 golly ag
parttet ahtat vd bied, even senegduom bisa vo, Jeesedal. bye
motteselie dt cbyooet edd Yo odste, odd, gnted ehIT id io 4 9/5
Hote et sepceyewoo bise Yo yaizem edt of, burs Leto Jo
» Torre of Tit tolele tot Lecorod -egnshive, ott xd betmougemae
obyer? Larcdor a2. anotd tor mo erdere, dads cTOVONOH Ad SIOD
‘ise paw doeTahets taris POOORY EPCS: bieS Io. acinen ond o2
Fhe acienirenonrt nik stctee exofenant tenth bot vetoed thers yatob poe seboid
aon se «wal 9). dpetubuant, ed, bl yow
3 RAD) H bt Telfer od bolttige gb yiteq A /eMO IO oy) ecu
; qisetacant .¢ ovenw foe erelils ot vtpanecenm Bi, pt _yietoeiadto eit
“eterna ot ‘Si ovo yRrod thet of 26 Jgelubvedt Jost al eh sohiy
edi odedtd ‘5 e*iw eit of Seedeant att sont enc yisdaufov 6 Bt some
TeIovoh wetecor: "oO vero idavene niatet Jon bib toddsb»toeme bul
fo gost ens? :O9A-PAL OET S08 egtonofl «v boomig) ,aideb etd
| | -S£8 -1f1 GBS stopmed ~ osenke)
ne! elias etadt abnetaos azerdit toT1e Sh MeIpielt
e bennenh art mew winKo Aqhobres, to 79 Daedea att od. maramonauale
» tn ooonabive ate? et bry sesus kon nog tate. * bouOt vtteqetE CY ie
setete tedP >. ettod adel tome mf deeboeteb Io yoaeviosnl edt
Yooeht aft ehh Lore tedmetoe! of Heltlaqa «toe T1099 ef soem
Lone oy tadt Mon tg dire be id f tudo fsgooke i bse, Yto.mwter ent
Jeary, o Haq ntiel Stag ° resoneveraas, bhae te aisebbabins sidhonindle
soheW fe pean tas 1877088 M478 v.goemset (+e ermal | nempekem
“hin ates 1908 ante all .grydoTo¥ «vy pooh ey. LOM ETE ged
‘Sp ctruom ety! wae8o, rested jand: ne i oetaee sparse ‘Botsild 2e
CHkaNhe iim V9 H9% slant ton) neh iee ally aieua ib aa ave open eg, AE Be
“The bill does aver, and the proof eatablishea, that
appellee secured judgment against Mra. Barnett, unon which ex-
ecution was issued and returned nulta bona: This establiches
‘prima facie the insolvency of Mra. Barnstt at the time of the
return of the execution. There is no averment in the bill eof
the insolvency of ira. Barnett at thettime of the wift to ar-
pellant and there is no proof of that fact in the record- .....
Appellee having failed to prove fraud in fact, the burden of
proof devolved upon it to show that Mre- Barnett renderad her-
self insolvent by making this gift befere it could establish
presumptive or legal fraud. In passing upon this question in
Moritz v- Hoffman, 35 111. 553, we said ‘p. BSA): “No one will
dispute the principle appsllant see%s to astahlish, that a vol-
untary Cconvsyancs, whou the grantor is indebted at the time of
its execution, is presumotive svidence of fraud; and a fPraudu-
lent intent will be deicekaiad: Gocte the fact that the party can~
veying was indebted at the time the conveyance was executed,
and that as to pre-existing creditors every conveyance net made
on a Consideration valuable in law is void. The principle is
thus broadly atated, but it is subject to gome gualification,--
to this extent, at least, that the debtor retains in his ros-
- session property sufficient to discharge 411 debts sxisting at
the time of making the conveyance alleged to be fraudulent. Tf
this was not permitted, trade of every description would be
very much crippled, and instead of there being an active inter-
change of property the whole business of the Sountry would
stagnate.'"
This latter case xa fully answera the contentions
made by Counsel for plaintiff? in error, and shows that on thie
record under the law, plaintiff in orror has whollig Pailsd to
make out & Case. There ia no allegation in the bill and there
is no proof whatever to the effect that at the time of said
conveyances John Petty had no property, or made himself insol-
<a
: pitive a Reh Rc) SH a ra rg ae Wri ak. ae gt ED at ee sede ay vl ie
tet (peda tidrtes too add foe (sees cook ffrd ere 8 Veet
“re dottw pode" #iewned ved teetend doensbdt Rowsee Sefrerde
. BHO Sak AEF dy Foul ER Yd Woden Meas MURR Re aniog
, ,
446 TTF
con Ge Sake wae Se en feds te dtéaseé Jedd So yYouovfdeat éaP
ati nf dasmnéve on ef enédt) doi juodxé ede "90 tindos
woo enboed et POF “gode send 4d tedug (Oh SP oaede baa eee rey
95 sebsic oN} (FOR) cE huest ‘everg 89 belted solved eeffeqdi
cuart beaehoss tied=ed sev Jens wote of 42 mnogu bevfoveb Ioouq
“padraesds ptboo iP erdvea dary Stak gotten ga? Fheer dap ties
Wwe WoPseeup ‘pttd “nogd aotee kg cr » bUETT fosgef TO avi sqaise og
rie ono of® (NAF lg’ Brae ow [eae VEIT Be (oeesSou wP Sat OR
-fov e tett .fetiaeiee of stese thaliedok efgtontag ode oftaedb
"98" Gard Gite ah peddobe eb: Fasneks ene abi Posh reee waRaae
-ubties? o hee tbtes? Yo somehive evitamveenq nt .aotdudexs Bat
<tiod usaee etd tend toed otf poe! pabvboly’ ed [ftv tnedot sool
e ( heiusexs paw ancevevdas edd ont) sd9 de petdéebal Baw gatyor
obex dar Saveveveoo vrave Biodi bers anteerzoreng 6? Be Feat bak
: et tG shag” ont ibtoy at wal at otdectav’ sb P sere brenso. & 46
~The sastti thu ‘ede Oy sseh one RPT Abe bebe el y edee eee
Or REA eh biased doddob ony Cee ehank Nees eras us
tn aottetys etdeb [Tle exsedosth oF snetorsouse edseqorg moleees
2
“ed bruow botadthaecs vzeve Io ebatd beds twrhe' Soa" Baw’ etd
eat? svytton te sated onettd 46 bedsan? poe \Bereqivo Hodm! yHev
brick eased aad Se" eben aad! oksalliesis paporntiehigdrers |
Ee tdvesrod She bWewela’ writ wa Shwe Werk ober ret wae
pat so ted? ewore Boe sores of Mtdhlelad Yo® Tenawod yo ebsm
int heltee vifady cet torre ot 99 Ydofeto ws Jedd rept’ Bioves
vals red bee [td oft of oobtenelfe of of ete?’ Veelso # ue eitem
NT en ae onks wut ae dadd toette eify of Wevedadw Ibte ‘on bt
-foent Merm?d bam to evdvogona’ on bad ysted riot! Sboeyevedo
ya
“redattdates nidt -endd stfon bastudes ber beveet eaw mdf dice
3T nas tel cebi ery ed oF bar of Ts “ebreyeuneo orl t “ant iam cre eu td ed .
4
*
ee, a a
ls
i
4
vent by virtue of amid Conveyances. The law further is that an
creditor "“witnout a lien has any rieht to cowwwalre that hie
debtor is givine away property to nis wife or children, unieaa
such creditor can eatablish the fact that he has not retained
enough to satisfy existing debts. Such erantor must mare him-
self insolvent by such szifts or Convevances, and to imneach
then, fraud must be charged and proved." Moritz v- Hoffman,
35 Lil. 553. and in Faloon v- WeIntyre, supra, the court holds
"if the creditor fails to prove insolvency of the debtor at the
time the Conveyance is made, he is entitled to no relief.”
It is also @ principle of law wniforély laid dewn by
our courts that, before a creditor can maintain an action in
the nature of 3 creditor's bill to set aside a canvevance aa
being in fraud of creditors, he must first have exhauated hig
remedy at law. 27 Vorp. Jur-, sec- 578; wcConnel v- Dickson,
45 Ill. 99-109; Dormyeil v. Ward, 108 111]. 216-219; Detroit
nee eee
ee
Rolling Mills v. Ledwidge, If? Ill. 308.
While the bill alleges that two executions were ia-
sued on the judgment to the sheriff of Franklin county, and that
ths first one waa returned unsatisfied and the second was re-
turned "Defendant not found," no executions to Franklin county
were offered in evidence on the trial of said cause. There
were other parties defendant to said juderent, and deere is
nothing in this record to show that said judement could not
have been satisfied out of the pronerty of said defendanta-
For the reasons above set Porth, the judement and
decree dismissing said bill for want of equity #111 be affirmed:
Decree affi
/
a
re
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P33 tedd ntafamne od tig bv gpg ewe, eke we IBoH LIK” rOdtbernp
Ree fe epee Ene TO ente wit, od aateqong vere ootvia ed sotdeb
_bartetey roe Avent ach hart tour ads ABELL ACES, OA OL eae Bae
“Hit uaties form otoars ove | edd aoltnixe yiretdae.ot mute
Hoseqet ot hee .eeonaneriao yo otiin done yd Jtreviount Iles
eM sy sinew. % “Lear, bas poryeds ed term buent <meris
abla? dries adit .pscup ety igloy sv PROLSZ FE HPES: 86S LET BS
edd $e -mntdeh edt Io .vonewlorgt ever od el fat nosthets ed? 34"
wa tet Ter on oF bel tt ine iat od. aban Sf consyevegs els emi
Pl grat bier winsotion wal 3e elgton ips eke eh 8h) tou dau
ME cottqe cs .nivigiss ope sod phe1d emreg sent a 5
cae
iS COTevertee .f ehied sin sa# AUS ato teetencaeienaie oe
< Btt botnamize eval tavt deun ed ygr0gtber0 4 byen? mt anted
aMQeSOLd -v Lenredol 1899 20m wh. .g70U. TS wal de ybemen
vp figateg 728-908 1 5T OGL oge% .v Legumrod 906-00 511 ee
708 ATT SRE sgoghebed ¥. 20LiM aot gloe
ehh eTer sro ttuoers ows Fett aegott es ALtd. ods el ia yah pinkie
Feit one) wtnvea afl tags? to Tirole edt oF torombut edt go beue
o RON SRe bro ger art Hae betietianay beyqudey eae eno daxti edt
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co TAT. .-gause dies Fo Ceitt edtiao esmabive,e nt Seer ag _ OTEw
ey nt exerts hoe « PPORR DEE (PEE A AMER REO ae 1. terde eTew
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boa toon hit odd eMtio? toe. evods enoeset ad ¢ Fea: “ay Oa
‘homet*te ed If tw etivpe Io soew9o?, fiid phhae gndectaelh eexpeb
Joo Diiegy gnero het pias tad? wore ot bre
Me PR AP YS aches API E abe as
amir essoel
by ee # re ° i * ° “ % ak 4 5 m yy
b+ ny ; Mga OS eee” apa aaa
eae PEEL Wik OR Pee i tel een eC ilinee mR: 9) C7 aaa lear ai Rae aaa
de VM Se ag ates Co Ls. | pal EE Be ET, “eal one Maree Wyo he oe ne
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NAR ee Sak ea Pg ee SE Se
ee ee - ,
Term No. 32
In The
APPELLATE COURT OF TLLINOIsS,
. Fourth District:
OCTOBER TERM, A. D. 1928
ERNEST JENKINS,
Appellant,
Appeal Prom the
-Vse
Saline County
ROBERT JENKINS, F. M. HART,
NATHANIEL JENKINS, THOMAS
JENKINS, D>. #. RUMSEY,
Appellees:
Gircuit Court
Pet TR OO oe a) &2
ue ee eee
|
Ly
c
-
la
A ee
Appellant Ernest Jenkins filed a bill in the cirevit
court of Saline County to the April term, 192, against appel-
lees, alleging that they, with appellant, were sureties for
one Robert Jenkins on six notes ageresating *4,514.53; that
judgments were taken on said notes and were afterward satisfied
out of the property of appellant; that on the date of the rendi-
tion of said judgments, and up to the time of the filing of
said bill, said principal, Robert Jenkins, was and continued
to remain insolvent, and that appellees severally became liable
to pay their aliquot parts of said indebtedness, eo satinafied
out of appellant's property: praving relief, etc’
To said bill, apDellees filed an answer, admitting
“
: 4 ON a ey earl all
0 Rang m
sf
- *
ey T SA Rs8 Ms
Th
edt, ol ie at Bete) eine aan ae te ate
eBIOMTIIT FO.TRUOD. HTAMIMTTA, ajo | dees:
sdofetetG démy0ef) a. ae
BSSL 6G nA MART HMAOTOO, Ma gon genie
0 Sa ee
Aleut ay toe ni MES?
OKT MEL TLEMEE
pas, PML uch ge st ae
i
“edt mot? feeqca pi
wo Tanti eal we ta voir MALY G33 av> \ Cena) gut
ey
ie
‘gonad setfae
a Bog hae year THAR, how Fl BAT IMAL. :
Ce oNe te Teh ea ES | *BAMOUT , 2kI SNM Tae
‘ ae | LYEQUUE «Sy. Gi, SUT MCD
a | ‘ a aR + me bagiseeickar ! ae
é rin Vey Shee ge eer 8 ator oh oo: Sue elena tan
ee yy
wb, gBOQOE Vd. MOTMTEO oi fei Qn ope
a ae
Eye Aart
‘gtieats ed at trtd 2 Berts entiost Fooors toa feqaa
~feare geotine , ASET emrod raek edd od Wuuee “extfse. ‘90 ta00
. ast here hea
‘wot Bette: erow ,tralleqqs ddiw saveria dact anigelta ciate
Ga ene:
tacts 7 80. NERA anivapeias sojon xte no ‘eatxaet ‘predoa | ento
Hanh.) apni anda’
hatte bine ‘ba swraddes ovew bre sedon btss ao vowed onew pdrremy but
-thres od? 90 oted ett no ted? idoal Leggs to. ‘ydseqong ‘ens 40 duo.
69 ap A Eas G 8 ARM Bs
@y ant? ent 40 ‘om odd ‘$e qu pre edeearg bot, bise to mots
beuntinoo hee eer Silat sneer aes phen: efhid bhed
sldekt enaded. vel armean aeslloqqe: ipa tase -snetfoent gtane2 oa :
beltntise on Lenouboadobn! bt ee Qo edt8q toute thedd Ved, od,
‘ote ,tetfer actvarq rvotegorq etna! feqge to tuo,
antttimbs Tomens Cy & belts seolfeqqe Ets bree ot
nd
the making of said notes, the taking of judement thereon, and
the sale of appellant's real estate to satisfy the same, and
further admitting that H. Robert Jenkins, one of the original
signers on said notes, had deceased since the making of said
notes and prior to the filing of said bill. Saia answer ex=
pressly denied that appellant was a surety on Said notes, and
averred that he was a principal thereon with Robert Jenkins:
denied that Robert Jenkins was insolvent at the time of the
making of said notes, and expressly denied liability on the
part of appellees for contribution as prayed for bv annellant:
A trial was had before the chancellor in open court,
a finding was made in favor of appellees, and appellant's bill
was dismissed for want of equity, at his costs. To reverse
said finding and decrees, this appeal is prosecuted:
The recpyrd discloses that in November, 1918, the said
Robert Jenkins and one Loren Jenkins formed a partnership for
the purpose of operating 4 garage and conducting a sales avsency
in the city of Harrisburg. Said partnership continued until
the latter part of 1920, at which time Loren Jenkins abandoned
said partnership and thereafter had nothing to do with the bus-
iness. Robert Jenkins ran the business alone until the early
part of 1921, when appellant became a partner in said business
theretofore conducted by Robert and Loren Jenkins. The record
further discloses that while said business waa being operated
by Robert and Loren Jenkins, they became indebted to the extent,
of some $9,000 or $10,000, which indebtedness was evidenced by
notes signed by Robert Jenkins and Loren Jenkins aa principals,
and by appellees as sureties. Appellant was not a siener on
any of said notes at that time. These notes were renewed from
time to time, and were outstanding and unpaid when appellant
entered into said partnership with Robert Jenxins. During the
partnership of Robert Jenkins and appellant, these notes became
due and were renewed, Robert Jenkins and appellant sirning said
bre .cooerett trem but. to neiiyes aid ,.eeton bias to gotvem eds
bye .omas eft ytatiae of eietne [eos a’ inet fegqe to el8e eos
Lagtnite eft to eco <0 £Noreb jvedoH .K Jatt gnissinba serge?
bise %o anitem oft socte beesoveb bat ,beton bise #10 pig
=Fe vewens bie? «flid blae to anift? edd of solr yon sia
bas .sedom bras so véovun 6 pew daeileyqs dant betneb yleeerq
arbinat: s1adoe A¢iw noeveis [satootad & sfw'sn sats Heiveve
att 30 amt} ocd te Jooviesnt aay ddrvool sxedoh sadt botneb
ant no. vdtiidall beloeb vilaveraxe bos ,sesom bise te gnivan
"tral locas vi so? bey sit ex fotdod fHdiod a0 peeileqqs to dTaq
-tur0o megqo af velleonado aft eroted bel eaw Isitt A .
fLid a'soalfeqqs bas ,soelleqqs Yo rove? af bast 8aw patho Es £
A ph PMN
eeTOVOT of, tetaon sic de .yeivepe to! dese to? Desatanth prt
| sbedupes en el Iseqqe elds ,eet9eb bas shales: ‘bie
btse ant Ole! eredaevoll mi tects aenolseth eflesare: ed? >
TUT RAE “pe
“ot qithersattaq & bemto? eal wnret nerod: evo pre’ i a ttedon
ead: Helen # aot toubcod poe og etay 8 antdereqo Jo enogitYg ett
Tirtou Beun ticnoo qidevendued bree. yudelieH to ytto edt ot
pordhisda acviweel voted emts Mokdwi te \O8CI Yo dxeq tettel edd
~nud aft ativ ob of anidten bad ted tasvend be qidevendaeq bree
yep edt Tijoy enols sseoteud ott ste eine’ sido .aeent
Fiddcged Tarte) i
prec ted bise ot Ten dreg 2 emsoed Spal Foqge oe aa a 30 oxsq
wien eh
Hroset ot? samt toot MOTO bas todos , bezoubsoe erotozoretd
Se A ik ea ‘ aed,
bstacteqo nett 9 3aw neon iewd bias of triw Sacl3 eevofonsb scecteag”
di sali ( ¢) OBR ME eee
t1etKe ods ot betdebnt omaged vers “cect xioet a boa trodes vd
Mee) Ua taahie payee aN vee itt 4
yd heonebive Baw seonbed dint aontiw (9004 ort 10 o00.@¢ onos Io
Popcrns wih Sa Utes
«a laq toaing Be an tsiaal noted bine satdnel sredor we ‘beoy te sedan
Py Rena “Paes Ret ae
ae from fe @ Jom BBY tovet t eq A spolieue ee evel loqas i ‘pas
TUR MANE Are: Aamo AL Tag ahi
_ Mott bewenes ovrew sesos ‘ecert vous sede cl esdon bise Yo ye
3 et} Be eae dy mee MW MB eke ah Re ;
toa! beqas mode Bibeqess fice nat boadadue oan bos .euis oF emt?
By
ats sored | temdsteret ‘Yredoit aide ginerensaed btes OS bevesne
reeks OG a
eupded Begon ope? .fmer Legge, ‘bos snitinst sxedel 40 40 qinfe-ron eon tis
di A IS RE ee
“pies nertdate eeutiomie bre-eatanet trodok « bewere sew bus eub
sal
“
%
7
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5
renewal notes together with avpellees. These latter notes are
the notes upon which said judgments were rendered.
It is contended on the part of apnellant that, as
the notes formerly signed by Robert Jeninge and Loren Jentina
as principals and by appellees as sureties were renewed, that
he, appellant, signed the same as surety and not as principal,
and that, having had to pay said notes, he is entitled to con-
tribution from appellees. On the other hand, appellees insiet
that when appellant entered said garage and sales business, he
did so on the basis that he and Robert Jenkins would be liable
for said indebtedness then owing by said firm; that 2t the time
appe llant cucared into said partnership, it had asseta consist-
ing of certain automobiles, accessories, etc’, claimed by an-
pellees to have been worth from %9,000 to *19,900, and that an-
pe llant paid nothing therefor, other than his undertaking to
become liable with Robert Jenkins for said indebtedness.
Appellant was the only witness testifving in support
of his theory. While two or three witnesses testified in hia
behalf that when certain moneys were borrowed of them, Robert
Jenkins transacted the business, and that they did not know of
appellant's connection therewith, said testimony was of no par-
ticular probative value. On the other hand, the testimony of
appellees is that appellant had in effect stated to them that
he went into said business for the purnose of helping to pav
the indebtedness.
Robert Jenkins testified, among other things: "He
(appellant) was to go in business with me and help pay these
debts and make the garage a paying proposition; help pay off
these debts of mine and Loren's. He went in with me then. The
notes at the City National Bank was renewed from tire to time:
They amounted to something like *9,000 or *10,000. ‘nen these
notes had to be renewed they were renewed bv Loren's name be-
ing left off and Ernest's going on." This witness further
ats eetor resitel Lah a -eeotleqos.ditw Ten tegod aejon L[aweaet
-bstobret stew etuemabyt. bise OP, BOTH Beton ons
ee. ,tedt tealleqqe to itaq edi ne bebaadnog BL ST... :
sotyaek ratod AO, ani taal tredok yd bermte Y¥ivem104, Beason. "agi
tests .beveret etew seitere es neelleqqs yd bos eleq koa ag . ag
cfagqtonina #@ ton bre yiewe os emae oft beagte etosilegqs .ed
-99. 0% beltiitne ef ef ,eoton bisa yeq, of bed goatvail,.tedt.boe
tetent aoelfeqqe .bast tonso efit 50 ..seefleqgs mort notsudias
ed ,anesteud aelae bose egetey bles HoT ae aaell eqqa merle stadt
efdatl ed bfuow ent veel s19d0H bas art sant steed, eit ao 08 bb
emti off te tedt tm7it bisa yd antwo meds erenbetdebat bise to?
~tetero® eterees bed tt .dideiesinag bias ofot bexsaae tasilegge
-7a yd hemtafo ..ote ,estyosesooa .eslidomosus mtst1eo to avi
-78 sens bere 1290s Of* ot 009, et mort dtrow, ceed ered of eoolteq
os agttasneboy aid matt tedio totetedd gnidson, btaq dust feq
-aeorbetdebni bi se oO? BotweeL, suedoa Site, Sigett omoned
sora mt antv3itest eeeadtw vino, edz. ew toslleqqaé. . eee eat
eirff of bettitret seesentiw seus to ows ol idw. “reeds ake to
tyadoa meds, "5 beworred ev tew svenom miasi09 ode tans. Matted
%o wou tom bth vedd sant bug .Seetieud add bedosenend. 20 fareb
- Tey of to saw yoomitees biss at Lwertedt soitoenno® a'tnelleqgs
So visomtteet edd ,Saal terito edt 00 “-euLav, evi tedong aol uols
tedt ment of betsts toels of bed jasl legos tad BL. eoelleqas
vag oe noitqied to anortug edd 104 eeeetons bise. odat tow ed
_o vop. speenbesdebat edt
ef", seaotdt, sadto agome ,betttiset. ectineh, dtedoh siden ae
Dba
saedtt vey cfed bee om diiw eeenteud ar og of Baw (sastt gaa),
3% yeq qled ancttteogorg antyedq 6 ‘ggetes ett exten. bas, aideb
oft... gots om dttw at jtaow oH. -8 19670) bas Qe 130 eideb exets
‘omit ot.ertt mor? beveres see nse ‘Lecotten yi outs $8 segon
eeett vady .900,0L% ro 900, e ewiE. potddenoe , ot. besa re edt
ire ener et neo vd beweret ener, ana beweaer od, oF. es, neds,
sedtrut acentiv elAT | "sno, aotos, 8! sees a8 ‘Mo ser pet
ee ee a a eg ee ree ee, ee
testified: "At the time of the dissolution of the partnershin
between me and Loren Jenkins in the latter part of 1929, we
had several cars on hand. Some ten or twetve. Thev run *a0n
or $900 apiece, some of them. ..... We had some tools, fPix-
tures, and a lot of accessories." This witness further testi-
fied: "When we (referring to appellant and himaelf) went in
partners, I had an agreement with Ernest Jenkins that he was
" to pay 4s Much ag I was. ..... I don't remember the date of
F an agreement with Ernest with regard to him and me assuming
a the payment of these notes- It was the year 1921."
Appeliee jiathanie! Jankins testified that appe liant
said to him that "he had gone in business with Robert to pay
this indebtedness-" Appellee Thomas Jenkins testified that
"Ernest said that he was a partner of the business, and could
pay it off if they would give hima little time- Ne said that
he Would give a mortgage on his home if Nathaniel and T would
give him security to get the money. He said that he would help
to pay these old debts in the partnership- He said that he
went in to help pay the business out- Said that he tonk
Loren's part of it."
While the general rule is that an incoming or sub-
stituted partner is not liable for the existing obligations of
the partnership, yet it is also true that an incoming or sub-
stituted partner is liable for existing indebtedness of the
partnership if he expressly assumes such liability, by his con-
tract of partnership. Frazer v. Howe, 106 I11. 5@%; Penn v°
Fogler, 182 I11. 78; McCracken v- Milhous, 7 App. 1F9. The
law further is that such assumption by the incoming or sub-
atituted partner need not necessarily be by an express under-
taking- It Gan be inferred from the Condit of the party and
the circumstances of the case. Frazer v- Howe, supra; Penn v-
Fogler, supra; alter v. Edward Hines Lumber Co-, 77 app. 97;
20 R. C. L., p- 985, sec. 219.
ow O8ET 70 rag aeiter vet ot eq!
RR oy
fy i j
oon rors vor -evions 70 “aed omen
to
=x? sefoos ogto8 bea oF ee
ee seca? seondin erat a "-nornosre Ha.
airtmunae on ke etd ot bragen agie
"reer ney on new 31
ett test bras of “satdenendseg etd ot
toos oft secs bree + $u0 puomtoud ox
a
aR.
¥
re
he Rie ene od Aor «oul
an me Ne
elt phar seca VY “evognny
Counsel representing the respective parties are
practically agreed in their statements of the law soverning
the liability of a substituted partner. This case is there-
fore to be determined upon the facts. That being true, and
the case having been heard by the chancellor in open court,
we would not be warranted in disturbing the finding of the
chancellor, unless such finding is clearly and palpably
against the weight of the evidence» Fabrice v. Von der Brelie,
ee a ee ane ee me ws — ee
190 Ill, 460-465; Haug v. Haug, 198 I1l. @45-50; Hudson v-
en re ee we
Hudson, 222 111. 527-528; Village of St- Anne v- Cover, 223
Sharp, 103 App. 239.
In our judgment, the finding and decree are not
against the weight of the evidence, but are amply eid tn tend
by the record.
For the reasons above set forth, the decree of the
trial court will be affirmed.
Decree affirmed. — ao
Term Ho. 33 Agenda No. 33
In The
APPELLATE COURT OF ILLINOIS, ee
Fourth District:
wn w ee
CITIZENS STATE & TRUST BANK, )
Appellee, \ Appeal from the
-vVs- Wadison County
HENRY EIMERS and ALBERT HIMERS, ( Circuit Court
Aprellants. )
~ meee
Judgment by confession on two promissory notes was
entered September 2nd, 1925, in the circuit court of Madison
county against appellants, in favor of appellees, for #5,244.
On December 18th, 1925, on motion of appellants, the court
opened up said judgments and gave appellants leave to plead.
One of said notes, for *3,500, was given in final renewal of
a aote of 43,900, 4400 having been paid on the principal: the
other of said notes, being for $1,100, was given in renewal
of a 32,900 note, #900 having been paid on the principal:
To the declaration, in the usual form, apnrellante
filed the general issue and four special pleas:
By the first special plea, apnellants aver that they
were fraudulently induced by the officers of appellee bank to
make and deliver to it each of said original notes, the alle-
gation being as follows: "that the fraud of the plaintiff as
ent mor? Lesage
ie
‘ad
Wei | ter:
ae TissOR enantio, rea as
Le go ere, J iyonkd sean
Jejustfooan
‘gaa ote nt reo
sie 18 N08 yo ‘MOTTO.
¥ % eae a
ae a mle Wig *
+ eet Fy
to each of said notes Consisted of the plaintiff, throuch its
cashier, assisting and lending its inPluence to Jesae F. “ep-
pel, 4. L. Simpson and Ll. FP. Bagby, so that said Nervel, Zimn-
son and Bagby, through arrangements with nlaintif?, Praudulent-
ly got possession of the proceeds of aaid 47,990 rote and aaid
82,000 note, in payment of worthless stock of International
Aerial Navigation Co., said plaintiff receiving benefits of
the fraud by retaining a portion of each of said principal sums
of $3,900 and 42,090, and delivering the balance thereof to
said Keppel, Simpson and Bagby." Said plea further alleges
that: “On June 13th, 192%, said agenta arain came to the home
of the PERE eC and at that time brourht with them a promis-
sory Note prepared on a printed form furniahed by plaintiff,
for the principal aim of $2,000 payable Six montha after date
to the Citizens State & Trust Bank of Illinois, with interest
at 5% per annum; that said note was brought to defendants with-' ’
out any request by defendants to aaid arents or tn the vlaint-
iff, or without any authority from them to said sagenta;: that
then and there, at the home of defendants, said agents solicited
defendant Albert Eimers to purchase stock in said company, and
solicited both defendants to sign said note for #2,000; that
defendant Albert Himars agreed to take atock in said company,
and both defendants sicned said note for the principal sum of
$2,000."
It was further averred in said plea that said “epnel,
Simpson and Bagby took the note for *2,900 to the bank and de-
livered the same to said bank and that said hank naid to said
Keppel, Simpson and Bagby 41,950 therefor. Sala plea further
avers that said stock was issued by a Missouri corroration;
that said stock was of no value, and that the charter of said
corporation was forfeited on January Ist, 1925, for fatlure to
‘comply with the annual registration laws of Missouri for the
year 1924;" that said agents "falsely and fraudulently renre-
ec? Agere? L2tbterele ets Mo Letefenoo shut bree to Hfoee od
~ver .4 seect of pemenlin! est yntbvel bes aaltsetera tetdens
qt 2 fecal biee tedt om ,ydnsi .o .0 bos gongmic wd af feq
-trefebu\ss .°oftotefo odie eicomandante denords e7dg 26 bie roe
‘bien Bre ator O0°.F* flee %o ebessotg off Yo mofemensog tog YE
facntiperatHl %6 ‘Hoode enefdiice Fo doemyvaq ot .edon 060,88
90 ehttened sotvicoes Wiatala brag” Syo8 coltay lye Latioa
antic Teatentdd ples °o done Yo deféiog & satotates yd buen? orfd
et Aoesett sonalad aff smtreviPob hee (O00, 8? pore 00e. 88 Fo
eagefls “pentdau sola bran “Sydgel bow vorqmie .feqqe® bise
emart oft of eso visas stevens bihes eer aA SOL Sel , FOS fhe,
-nimord a medt Mat jteuord onto dadd $8 bos edoslineteb end to
itiset hed Yd “hore tows e198 beduing © 00 botaqetd etom yto0e
osast eth SRIER x10 eldevag 000,84 20 ‘wie “regFontig ‘end 464
desratat stiw yatoati rt ro Ure seust 2 etet2, enestdEo ont ‘od
+e AF to e drpberetob ot tdauerd ase eton Biase tad? Santee seg 88 te
-thtefe ads nF <o etroenes bise ot Sig ehwate yd seasypet yas ‘Se
tett yathesn bree of meds mon? yvtfrodiue yos heron bite ‘30 cess
bottSttoe afters bree ‘“edGaboeteb 46 Smid elt #8 Soreds ers font
bas “pyeparss Hees 1? Hoots eradsauq oF etowla paedt hse SaOIOR F
toads $008 88 769 Sddd BFee elke o8 pJowineteb dod “bétborréd
eyonanod Bier a? sooth evek oF adams evetia dtbdr 8d ebROTeD
‘Blow ‘Bhae Boddy Pe Snbpaeten asd BAS
, Die CARRE ete dia BER O00 Se
~feadey Stee fat 26rd pied’ ot ‘Poraeve eddies aba FE TO wen w
-~ob BAR Had od# 64 O00, c° S04 etd Ott Mood ydaad bis woogmnld
htas of faa “Yoad bree Sats sae Aosd Bias of SBE AY Bondy PF
46 mire Peqtoatea até to4
+. ee eae kt i Geet aa eee We; RAMA SS
nodivut Adrad pP8d lxotencdt Ode, ff y¥dg ad Bis "Hdegate .feqae%
reiotterodsoo Patiobsatl B yd potash Sew #6dse BEweyeads etevs
“Btee Vo aafdeds Add Jods nah’ loptiey of Fo "dew slsoke bise Sats
of stuf tet 40% .S00P [fef vrkudal do bodbottod aaw doPfetoqiod
gat yo padodn i 96 seat aor detdetdse féutian’ odd Stew '¢lqwoo
iéedon wfdnsfabdat? Boe vieefa?” sanegt biea sade": Seer “sey
eee
sented that the stock of said corporation which thev were
selling defendants was valuable stock, and therefore, confid-
ing in the false and fraudulent representations aforesaid,
and having great confidence in the plaintiff and believing
that the plaintiff would not, through its cashier and agente,
carry on its negotiations and dealings as aforesaid with and
bhrough said Keppel, Simpson and Baeby unless the latter were
well worthy of trust and confidence, defendants then and there
signed 3aid original promissory notes, and not otherwise, and
without any Consideration whatever.*
The second plea is of a similar character, and is
confined to the matter of the note of 53,500. The third plea
is similar to the first in its averment of facts, but ia
restricted to the $1,100 note. The fourth plea sets un the
defense Of usury, and seeks to have credit on the principal
for all payments of interest made by appellants on any of said
notes:
igplications were filed to said special pleas: a
trial was had before the court without a jury, a finding was
made in favor of appellee, damages were assessed at *8,244,
and an order Was made that the judgerent enbéred on Sertember
2nd, 1925, for %5,244, stand as the judgment of the trial
court. To reverse said judgment, this appeal is prosecuted:
It is first contended by appellants that the officers
of appellee bank had actual knowledge, or that the facts and
circumstances in connection with the makings of the notes in
question were such as to warrant the court in holding said
bank and ita officers to have had conatructive notice of the
character of the business being transacted by Kepvef Simpson
and Bagby, and that appellee bank, havine profited by a dis-
count made by them of 24% on the nottes sued on, it thereby
became a participant in the fruits of said fraud, and by virtue
thereof said bank is not entitled to recover any part of the
eter vert. dotawr rots anog@o9 bie ‘Yo bate dole ae? tent Aadnts
-biinoo ,stoterett bos , Foote olden! ay eaw ednsineteb antites
, abieeeroce. a dot dat da taeelubuer? boa este. ods at ant
apivetied bere tiftofalq eit at sonebiinos panels 2 aritvert bas
eetosgs bos tethaso est Hguonw J fou biuow Ti jaLsiq ond tacts
boa dite bl aeeto ts 2s) sazotiaeb bos enoivelsogzea ett m0 ye
etaw tettal edt eeslou yvdesd bas corgmte sfeqgez bas ciguonetd
erent bee certs atrebretob .S9TebiIso9 boa feuns Io yetdriow Hew
foe, ,antweredto ton bar re9son ytorr tog Laciaiato biae beanie
*. coved edw notsstebtedoo ie Ms gir dg
. 8 bos ,tefopranto asfimte « to el sefg brovee ent
selq, hbtids ef. 008,82 %0. ator edd, to. n109 3 80 edt of. bon tines
at. sud <etost to tnemreve ett af text oni ‘od selinte ®
add ou etee kofq ft~oo? ef? ,eton OOL, 1p. ects od bedoiniees
feqtontaa sft mo tibet even. os exeee bre ewes 20 sensten
3,4
biae 40 yaa no etnelfleqqs yd ebsm sesxosat to sinonysq Sie, 108
f teselq [atveqe bise oF befit etew eae! seo! Laek « me
SBN. mot bort s Vt, 8 tuods iw swoo edd stored bet “pw Lats
BBE. a@ 3a Deneerrs, etow eonemsb see! Teqqe 20 neve’ at eben
nedmetqs® no beware dreny but, edt ted. obam., ase » TOB70, we tne
fete oft Io Jvemubut edd ea boat] . dS, at 0% 2880 tins
“hetuossotd at Isaqqs ids :Ioompbut, bie eerever oT .dus00
araortto edi tadt estoslf[eqqa vd babsetooo seri? ai f1 metre
be etost ett tedt yo ,exbelwoad feutos, bar ined set feae to
vi. veson edt, to, antvseo edt watw sot toerago at eeoratemonto
biee aniblod of gsruo09 est svartew of as Move een not seeup
att Yo eattonr evitoursence bat ‘syad Pa, BIpOlTIO Bat bem ery
rosamri 2 \erqeX vd betosenert gated sventeud oat Oe nodonnade
~efb # vd bes ttoxq anived oteed, Gel 5 are did | Bie. Xia ee meee
_wdortesd tt m9 deve seston edd mo RES Io mot yd ©
eban
SM RSM le fue ia Lt
eusativ vd bos busty bise to etter Rod ue. Rites ate gy 4 ; sana
Pie ue eh hase
att Fo deteq U8 FeTooOs. of beltitye ton ie fede bise loeredl
principal or interest on seid notes; in other words, that an-
pellants have 2 complete defense as to both of said notes.
Fraud is mever presumed. It must be affirratively
shown, like any other fact. Wright v- Grover, 97 T1l. 49@-4%0:
Boles v- Henney, 32 Ill. 1370; People v. Lott, 34 112. 447;
403; Brady v- Cole, 164 Ill. 114-121.
The record in this case, as we view it, wholly Pails
to sustain aaid charge of fraud. The evidence is to the effect
that appellant Henry Fimers had *nown “epnel for some time pri-
or to the giving of the notes in question, and prior to the
giving of the’ original notes of which the notes in question
were renewals; that he and Albert Fimers, hie father, had both
purchased stock in said corporation, and had settled for the
same, prior to borrowing any moneys of arnellee bank with which
to purchase, when again solicited for additional stock in said
corporation; that when solicited to purchase such additional
stock, they stated that they didn't have the money to buy and
wouldn't pay a high rate of cuesteat in order to purchase the
same; that said agents thereupon left appellanta, but returned
to them in a few days and stated that they had found a nlace
where they Could borrow soney at 5%, viz., at apnellee bank:
that thereupon appellants made application for 85,790 nar vei hes
of the stock of said corporation; that they went to aprellee
bank, signed a note payable to said bank, due In six montha,
for $5,000; that thereupon the cashier of anid bank icaved a
araft payable to appellants for 34,750, which draft arnel’anta
endorsed and delivered to “Neppel, Simpson and EHaghy; that, some
five days thereafter, appellants paid ssid *8,000 note, with
‘the accrued interest.
Appellants further testified that thereafter these
same agents again solicited them to buy stock in ssid corrora-
tion, and that they at first were reluctant to do so, but that
«te hed vee brroe cred to chopaager Soham ‘re teeretal ov Leqhomieg
wretomobter to riod ot es sathteb etehqacw # evar) sds liber
¥ Lewisham t 39 erect iene dP) heme agy reiveln a Bethe mee oe | 0?
7 OFRWAO GOTT OF oo cteyort acy Inter et ato yeti! aes otf ynwode
pee tt TMP aoe? | wiekgesd .O8L iid sb eyoutel w' selpd
ttl O88 a ieley 0 geboerioe {OVS ffl V8 yehensey + megenD
otial oh) haeley oo LCE aide BOL, usted! oly naa eos
elied xtlodw 4 tt wolv oF 2a pened sid dat biotetodh (noe D1 ee
foette eft-ed ef sovebive «iT parent So satado Shar othadewe ot
~frr ears emer tol Teaqe? ovo had eens yunek rel leqga tans
ot ot sete bee aoiteeupy wh: soto eit foowoivits edt of ‘ial
he htepep afreator: ott Coble to eaten Lenmiet vet edd! tongoivty
Htod ber yest ett armen todmadhA Sra od! dade pel ewener erst
add: to? befdtor! bat fre” ,.coltenoatoo (biea oh! Hooda bonatlounny
fotdwittie anad pal Leatin to Breton’ vite an twortod” ott rot ( OmwS |
htee tt oleate Ireoteibbe te? bedi ohfte ol ask soctw, ebad ong Oy,
fannisthbe cove eerdosut of bettotion meaiw tedtd taottavaeato
bray vid.ogty epee el F ewert SobtD yedd ted besetvecyenit . toote
atid: eneroney ot, tobto mt deetetet to sternigic s yaq é? abibow
hoemmtetitud: . pdsehtogqe dal soquetehs adverse Oree) dads! ; eres
SOR eecboto™ betoveds datt betete’ hos seep wer @ io mals ot
toad eolleocds: te geatv .YR te pomot: worsted blood yetid! erveaw
def aie sor HO: rod cot tnotiqaeebem AImeLs ogqD Hoqueteds! duns
aogattleqdqa atuddew vel to ted tneté¢eroqvos B18 fo Hoots ons to
watinor:tiatat ash gunadh Sipe ot aldnyng adorns! beng te: <sorkd
gs botent tered bise te: vodtiens: ots abgesvadd tele) pOOOgsROMD?
atnei Terre: sath dotdw: .08%, M etretqaliag¢e ot eftayng! ter
enos, tedtopedgelo bam nosqate .hecrsiot! bevertleb Sab bearobse
ddim, otedo000,a* Sina bisy eteehl eggs, sed teedode ayebrevty
A ata RCN an A at Re “a $aetesinty bowtops ante
onettimedieotatd taft bodttteed redgauY adealiog¢ arin tinagh
BONO bter, stistgote gud od) mont “hoster lee tiage ied ¥ 6
tedd ted pos ob ot dtmdonled enéw! teatt denyeds teds\be
said agents represented to them that thev were cettine the
full amount in preferred stock at par valve, and in addition,
they were vetting a bonus of an equal amount, par value, of
the common stock of said Gorporation: that beth the preferred
and the Common stock would yield them dividands at the rata
of 8% per annum; that they thereupon agreed to purchase %%,900
par value of stock; that they went to annelles bank and ex-
ecuted a note to said bank for $3,999: thet a draft was isaued
by said bank for said amount less 23% discount, or for %7,an2.80:
that they endorsed said draft and delivered the aame to said
agents; that thereafter they paid 409 on the rrincipal of aaid
note, reducing the same to *2,500; that said note was renewed
from time to time, and that the note for 7,800 sued on in this
case is the last of said renewals.
They further testified that thereafter said agents
again solicited them to purchase stock, ard that they siened
an application or contract for 82,009 par value of said steck:
that this application was given by them at their home, and that
a note was filled out on one of annellee’s blante for %2,000,
payable to appellee; that the stock was delivered to anresliants
and the note was delivered to Keppel, Simnann and Bachy: that
said note was taken by said agerts to apnellee hank, and that
said bank issued a draft for $1,950, payable to Keppel, Simpson
and Bagby, therefor-
The record discloses that apnellee bank had nothing
whatever to do with the sale of said atock to anpnellanta- The
evidence in the record also whollv fails to show that apnsllea
bank or ite officers had any Knowledge whatever as to the char-
acter of business being transacted by “ennel, Vimracn and Bag-
by. Henry Eimers testified: “He (Dacklesa, cashier of appellee
bank) asked me whether I knew them fellows and T told him I
knew Keppel." Said witness was then asked the following quea-
tions, and made the answers following the same:
caftoanttten erow vedt tadd mont ood hotrereimeg esduroge bine
~oortibbs mfebre >. oufev vequte Hoote bherreterq ei davonta Lied
Foi ae hae ores c bateome fevroo af Aoveusodoacantiten exew yours
Berrotexq att dind fads. soattetcor a bisa: to:toote Sammon veds,
atatoonf te -apsebivil medt-obl rig bi vow i woete KoMMTOo eft bra
000, 7% eeadomry ot beotna aoqusr eds) veds Fads» poe T8T R880,
hee.
-¥o bow wad cnet Cantey & of toew‘veds tady 7 #90%e Io: evisy tag
hovest sew ters eters’ 7000, By 29 Inet bise et eton # betyos
04,898, Tt Tot to ,socooR th PES evel tovoms Stee 169 doadbtea yd
sob t ae di Suis efit bevaet heb: boa tisswh bisa: bestobas yeds tait
biae 90 fagtogits edt me OOM bisa yond testwoneds dads padcons
baewerey 8? ocer Stee, tetp POOR, DR od onze edd gatoubet peso
efit nbicro, bese 008% Rn? «ot efonveds tems pos emid 6d embas mors?
Fd wes Puan tvnk do ade cB RaR Yo Jack snd \etsesmo
1 (etae_e bineonddtoevods -dedt beLtiteed reds ged hin \ eine
ferme Be opadtd ft ett ‘Bee etoote evredtotudg oi caierasisesahidonl uuu
ivoogs StAR Tp ecules ter Of0,e% vo? Jostéceo to wolseoblage- ne
sett hye: ected sheds sa wend we govlgcsawr met taollqqsvetdds tags
(090, 9% sod ploeld aleellecgs % eon oo sue belli? ese etoa:s
ataptileacne of betevit ah: naw toote ent. dans seefleage of efdavag
todt ‘nikal Laat weneeke cfeqqded of betevrifeb esaw etoa esd bas
tet ca law setleaqe ot ptrege bisa yd Setar Baw eto. phew
sopatTe tnadem of efdavag 089,14 102 Sted @ beveat soad bie
oP horsey poe ved fy ede OF hows,
aqidton bed Need .collegqe tets 2enoltelb bidet edn fo ie
of? atealferaeved Moet s brag tat efse ed diiw ob of veyed ate
aah lerrm dana oworle od ether eftode sels byooet ott ‘mf eonsbivs,
eteso edd of en voyedet® og hel good vers: bad er9ottto padi 0 Mad,
‘ompil por como? pfegaek yd betoserest sae bed eeentaud Ao sehen
we! ances In settieso ~natvogl) ef". tbertiteed evemtt yaneh one
RES oe fiod, Fe show eed fer omeds wert T erozeciw reat bose (sad
“ameuh actvolto? ath beves cedd raw abertiwoBtae o(" Leqee? sanisl
nwo wilh cea un a came netroltot esowena laminate wht
cy
eB!
i
4
Dy.”
a
of
vm
‘if
CE ee ere
Se PO i a ee ee ae
eee
a eee
a ee
ee
Fj ee a eS as ee
"9, Didn't he ask you what the Concern was doing,
what kind of business?
"A. Yes, gir.
"9. And didn't you tell him they were making auto-
mobile accessories?
,. Yes, sir."
So that, so far as the evidence ia concerned, 411
the real knowledge that appellees bank had with reference to
the business of Keppel, Simpson and Bagby, was derived from
appellants. The record further disclo6ses that appellants
were relying on their own judgment in reference to the purchase
of said stock, and not on anything said or any representations
made to them by the officers of appellee bank- We therefore
hola the evidence insufficient to support the charge of fraud
against appellee bank and its officers, and that the eourt
correctly so found-
As to the defense cf usury, we are of the opinion
and hold that as to said note of $1,100 and the original note
for $2,000, for which said *1,100 note was given as a renewal,
the plea is not good. The stock for which said 42,000 rote
was given was purchased at the home of appellants, and said
note for %2,000 waa given to Keppel, Simpson and Saghy, in pav-
ment therefor. The fact that said parties may have sold or
delivered the note to appellee bank for %1,950 would not avail
appellants:
As to the note of £3,500, which was a final renewal
of the original 33,900 note, the record is different. The
43,900 note was given to appellee bank at its banking house.
and the officere of said bank, instead of sivine to appellants
43,900 for said note, only gave them $3,902.50; in other words,
a discount was made by said bank of 23% on said note. Said
note, by its terms, was to become due in six months. The inter-
est agreed to be paid, of 8% per annum, together with said dis-
*Bqtob easy arene edt tade gow ee of PBB OM soli sda
| coe oR pR@ngeud Yo. on2s: tedw
The AOE, pad”. Pout
~o tye anf tom stow yedt mid [led MOY TBE BOB eS as saps mi ewes
| Seottorseoos..el tdon
eae Shy r <TR, OT, nA op phi Ye
iTe ,bermrsence af eorebive aft es tet .oe etadt AOE ik oh haety
, oF sore ts tev diiw bed aned, sef loqaa tedt sybel worm Fass ett
. mot) beviteb aaw ,.vydaaG bas foegmiz. ahead te Been Lege, eds
esjnslleqas tends ees@losib tediiu? biopet dT. bioel Leqgre
vee edomuc edt, ot eoceteiet of Icomy bul, awo, thos. £0 ante fan: aad
anoltasnenerqet vie 10 biae atidivas 90 Jon bra ,doodte,, bise Ao
M etoteteds oF | - toad seffeqra to, exsoftIo, eid vd gedt, of obee
ill 30 ke ats remine ‘pe. doototyaucnd ecttap ire, ens, blond
gape edt torts pee aaepbite atl Soa, Aned eelfegqs Jeniages—
_.banr03 08; eanene
| avelon. ant 30, OTS ew eV eu 39. paneted, ed Oe: BA, titade ay
aston Tamia io. end bie O0L, {2.. to, eiom, Dies. od.e8 (edt, beccnen
fewones £ e2 certn sew fon 0OL.1% btas dotdw, 799) ,000, 88. m0
_, sfor 000, 8% bten.dotdw - 10% AS90398 .edT. -Loox, tom .at» selq, eta
pres .8toel leqge To, aatod end +2 beasdo-wq esv.certz sew
~var of atgee ora corgmis legged of mevig saw, 000,88 10% eson
. 70 Bion ‘eved yar poltveq bisa stadt jest SdT,..totetedd trom
ffeve tom bfuew 080,18 10% tied eelleqqs ot eton oft Lenovileb
er) Pe a vatoel Leagqe
fewecey [anit s eaw fotdw .008 aot 49,.e40c end HOE PA Ys rg an tdp aihg
edt -fretetaib at bros eds . oto G08. EF Lenighro, edt 29
| eet ar tatinad Bat hal bay ‘Sah Lene of HOVER BBE, ator 000.8%
wiiat bees ot aotvin” to beosent, oad bisa Jo ASAPH NO (edd hers.
eabtow yatto mf :0R cde, Bt med4 svea yico .etor bise, FO, R08 ca
hres ,9tor bise no RES 90 ined Stee yd Fs Lhd aew toneouth @
-resat edt ‘ed3caom xia nt eub emtooed od, ew Pures edhe, seton ’
“sib 6ta9 d¢tw ted tenot simuogs meg Re 30 beg od. ot beaman tee
count, made 2 total interest at the rate of 10% per annum,
which would be usurious under the statute.
Usury is a defense so lone as anv nart of the debt
remains unpaid. Harrig v. Bressler, 119 I11. 4A7: Gabe v.
in discussing the extent to which this rule applies, sass:
question made as to usury arose under the act of 1857, and it
was there said: ‘While it is the rule of this court that usur-
ious interest, once paid voluntarily, cannot be recovered back,
yet that rule does not apply when the transaction has not been
settled, and the lender brings his action for the recovery of
an alleged balance. In such case, the borrower may defend by
Claiming credit for whatever usurious interest he has paid in
the transaction. This is not using the usury law as 2 sword,
but strictly as a shisld.' ..... The doctrine of this latter
case was approved and restated in Mitchell v. Lyman, 77 Iy1.
525, where it was said: 'This Court, while deciding that vsur-
ious interest, voluntarily paid, cannot be recovered back,
holds, still, that so long &s any part of the debt remains un-
paid, the debtor may insist upon a deduction of a@11 vevrious
interest paid, therefrom."
And in Cobe v- Guyer, supra, the court at page 57%
says:
"Usury in one transaction cannot be availed of in
another. But settlement and agreement upon the amount due and
the giving of a new note do not preclude the Antone of usury
existing in the original transaction. So long as anv part of
the original debt remains unpaid, the debtor may insist upon
the deduction of the usury, (Payne v-Newcomb, 100 [71. fll:
ee ee ee
jenkins v- International gank, 97 id. 568; House v- Davis, FO
&
r ‘ ¥ a
.murige ‘ted yer 10. baare ae ‘de jeorose? {esed eg * ebeur <tovoo
u Bes Dur Peay Rice ! Ow *'
-edusete ort Tebow cuetawen a “bite fe voli
i y BL f
_fdep ong | 39 sa s7 vos es Bret o8 ennaten | 2 al yowet
aE Sa ) ae
av adot 7 Thb trl ore solar OTe .v pisaey | ~Skaqei ent enet
iti
a
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he
$3
eet nag. +e terr08 eri esque .zel epee v ‘gitret ot
: Wy wh yee
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Rigi rp ike) RAGES MOO ae | Say i
Ons f8e «ffl TE elghaad “v yolyse 40 enso ent oi” \
(REE EB Seaton Bates gut
of bee SABI te fos bed sebow sents ewe oo es eban not taeup
ie einpe ease Me tice 8
tees ted? PID eins 46 are ed al ‘$4 el tdv ?bhtea oveds ‘ae
hemes vo WO deer Le RR A a, dae aaa
wtood betevoost ed tounge tiinedoutow bh eq acne . teoretnt evot
aged. ton ead pottoeanaty “ott pede yigge doer ged syoe 3 Sang “Foy
Pee Etevooey. ant +04 motsoe eis santas reboot fea ea ye
vd BaeTeb | 2 el tigen ed OBx9 owe nt _se0nat ad \pegettarn os
“or bteq ead odd teeratnt etre Puen névetadw “Ye ‘fibate fre
“Roe.
Prone B a8 wel yee exis afte er at sil -no# sonenss
: uf
sostel alte to ‘eoimteob ot? asa ee "bletse. B nae rsonete dud
i EU, iets GS MBS Be as al ea
et fi. vr seed + SIodotny at badatoor bre bevowgqs eBw ‘Bo
(tH, i ay CE iy Te: ag
~aee tadt, apthtoo efinte Stu0e ete" bie ese sie eroriw ‘Vasa
z, ¢ ae PRE ALR
load. boxsvoost ad fonrse ro i eli teseutov peepee ean
I Reta pe BRE ets Hs Rha, HOR his vee
ge, eqtanss tdeb eft 20 s180 Ain es aco! OB oats vifita .8
ee UE oh ite AGE) Rit Anca Rei
po ioet ils to nota oubab 8 roger detent Aon tosdeb ot <b aq
Mo Vere els
".wowterada brag Saerodnd
z ok BN! § Tithe ESN “a a CF 99 pelt at eee he Ba By
aVA eaeg ts fauoo oft ,erque .Teyu) -v edo ai BOA
ate E Rake er
Ni yes ui «4
i iF PeMae MEY ui Meret: aa
mE, To betters: od Sonsn0 sor toenassd eno ai ‘eapet”
Me alan {BBS 6. Bie he Ge 4 he
bers at iatons ett goqu inomeoras na demel ten dua St sve
UDR: Pec SOMME Brees ty MS A
“wtung to ‘grootet. etd ae sgltst vy $00 ob sion wed 0 ouiela? "See
9 8 OR de
~to diag wns os, aot rat snot tonanens facta ho "ede yt aot atxe
Ea aE NE ae ote A) Bg 3
esegu tetant. yom sosdfob ont abteqaw. ‘hekines $d ok Ieatginxo eats
Re a Ae MBN Sy Be Reg 4
Fey eae. Siliry 1.0 5 00f. «groorer. fl one Bd) . vives eft to nob: abe ene
| alte ot 0 RMI ttn By a uae
C4 Bie ast
OR Ake, "TrQBey 1S8R, “BS 2228 L209 Lavek sees ‘eine bbioet
aa i
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n°
BY,
S,
|
id. 3@7;) and only the balance of the arineimat remaining
after the application on tne principal of all vaymenta, wheth-
er of principal or interest, can be recovered. (Harris v-
Bressler, 119 111. 4@7.)"
It is Contended on the part of annellee that the
eaaeitne lot usury Cannot be raised in this case, far the reason
that appellants submitted no propositions of law. Thia roint
is not well taken. ‘The fourth plea raises the issue of veury,
and as the record clearly discloses that usurious interest was
p2id on said note of #3,500, being the final renewal of the
$3,900 note, it is the duty of thia court to an hold, even
though no propositions of law were subritted. P. CG. G. %. St.
Le Ry. Go. v- Ghicago Ry- Go-, 200 Ill. 1#2; Cohn v. Armatrong
Tire & Yulcanizing Co-, 222 App. 572-574,
The record discloses that %717,82 was paid as inter-
est on the 83,900 note and the renewals thereof. Apnellants
would therefore be entitled to a credit for the amount of aaitd
interest. The judement in this case will be affirmed, provided
twenty days from the filing of this opinion. Otherwise, the
judgment will be reveraed and the cauase will ha remanded.
Hot the pot
Witenes Leqtontaa pid 20 omelet eds Cag hem tL TOS ome,
~ftone ,strenyed Tle %o (aatogtad esd oo noiteotiqas edd teste
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einatiena® .Toetert aiawenes scy bos eton O0€, 8% eds do. a,
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bebtrosn cbomat ste ed {ftw sero etdd of toems but. edt. tRetedtet
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Term No. 34 Agenda No. BA
BS “ ‘ae
In The ft fy
y is Pogue)
Fourth Dietrict. “OF <9, Ct)
Poko fs Qa;
»
Rinigaegea Wa f
CSE ke e
OCTOBER TWRM, A. D. 19264 Me oe
i“ MA) >,
oy, ‘3
FRANCES VOLLUZ, )
Appellee, Appeal from the
“~ve~. City Court of
MAY E. MOGER, ( Hast St. Louis.
Appellant. )
Ak ta eee
etre eT ae ie Rigike %& Zt as
OPINION by BOGGS, J.
An action in aasumpsit was inetituted by annsllee
against appellant in the city court of Fast St- Louis to re-
cover the amount which she had paid on a certain contract for
the sale to her by appellant of certain real estate. The
declaration consisted of the common counts, to which was filed
a plea of the general issue. A trial was had, boaeiiies ina
verdict and judgment in favor of appellee for the sum of #318.
To reverse said judement, this appeal is prosecuted:
It is first contended by anpellant that no recovery
can be had in this character of case on 4 declaration consist-
ing of the common Counts.
We do not deem this point well taken, for the reagon
that, on appellee's theory of the case, which the jury evident-
3 ly adopted, she was seeking a recovery of liquidated damages,’
Pee gre
Bek
re
AX i
wey
ik
ra a)
n°
Vig od .
we aes ba EP oxi eo One)
¥ NES Begin hakat Jom
ap aly " f Fey Ke Pigs "
’
\cnealis oj eae ah HA Ah ee
ae a t
58 cof shrew. | i ER aad a, Siete
: Lh ig Deere
f G aLo#TIIT HO TABOO Pads HEA 7
V
sate
Wc) AI Ae ces hm te. i
stoistera S408
Vie eS A MY F
3»
S eS mia
ps
Rx ASel .C 2A ¢ HAUT AREOTOO
aye Br a re OY faa P aig dlc Th ah yy ate Sah ae
ers \ ite SG. BE ee
j ‘ F ee 3G ae ‘.
Hy) vein Mae eNe iene SHOUARE *
ead aor roach . coal eqs
ERS HT aR ae ae Cae Rea ae AY Ss atid
40 Fiat take} efit ) “BY.
ee so hat OR a ee ReLER vik
~ptuod d8 sens } oom a ¥
f pi kay 2 ln {, oe Oe BEL Bees Ay co) /mertas
Ai a
“ea. AT ee ee “th
PET GCE CLO NES ie ee.
del 80008 vd Koritido
Pega denies. WKS a NRRL eeicf BL OLE get RS SAT
y gee be eis
perp a oae
ren ie Nt ee hee Me a ii A Be Bel agen Re pak ae Se Se Bey ek Sie: 2 oes
eel feqre yd beotugistect ecawittequveae at. MEL OMrObyoi, psig’
~er.od eived «¢2) teak Jo dauoo ytto ett of. tuelleqqs sentage.
“0% toattaco atatieo & 70 .bheq baci one dobre Bas og edt tEvED
of? .otatne Teen ntayess Yo tive ecae Ys mast of oes at
daft? new, nary ot eRtoteco common ead Ie betefagoo ooftataloeb
eat acttfusee, .bed eaw Tatyd A event Iaseron eft to selg 6
<Arat to oA and no? eelfeaqs to rove? at sooo but bre tofbrey
-betvossoig ef feoqae sidd ,dnemphul bier eetevet of
vievooey oo tats inatfeqcea yd bebretnoe test? el dT
-tateoos coltaraloeh 2 oo oreo to tedoetatD atd? ot bed ed a9
-asneo sommoo edt to aot
nore set sft to? Renbih ifaw toled etdd meeb ton ob oF ta
ey ga vrut edt dofcw .er8o et “to. yrosd?. steolfengs: 50. tats
* 0 on om eb besebiynpr{£ 2 vrewrooe7 & noLxeoe eer erie _betaobs wt
\
ot inamits Uait Rabat incts. Slob le ae nome ure leh aide
That being true, a recovery could be had under the common
counts. Concord Apartment House Co- v- O'Brien, 228 111.
It is ala9 contended by counsel for appellant that
the verdict of the jury is against the manifest weight of the
evidence.
It is conceded that appellant, through her husband,
H. J. McGee, sold appellee certain real estate for the agreed
price of $4,975: that appelles made a cash payment on said
contract of $2700, and that the contract provided that she
should pay *75 per month thereafter; that she paid the Pirat
#75, but afterward, by agreement between appellee and appel-
lant, acting through her husband. H. J. McGee, payments of
$50 wers made by appelles and were accented by arpellant on
said contract. The testimony on the part of annellant is to
the effect that appellee paid #25 on said contract. Appellee
testified that she made two payments of “RO each for which she
did not get a receipt.
Appe llee's testimony with reference to the alleged
agreement between herself and appellant, made through appel-
lant's husband, H. J. McGee, is aa follows:
“On the 18th of August (1925) I was sick in bed and
4p. HeGee came to my house, and ty little girl went to the
door; heasked where I was and she eaid, ‘Mother is sick in bed.’
He said, ‘Fannie'--he never called me Urs. Volluz: he alwavs
called me Pannie--he said, ‘Fannie, von can't “een the payments
up on this house; I Have got this house sold, and when T sell
this house I will make an agreement to pay you back what vou
will have on the house here as soon as those other people eet
in the house-’ T[ said, ‘All right, IT will get ovt as soon aa
I will be up-' Tf was in bed from the 18th of August to the
12th of September and he kept coming from day to dav; he sold
the house to some people by the mame of Strecker; they moved
somaroo eds vebow bed ed Biuoo yregeoes 2 ,ound noted Jed?
-fIT 682 .rettG'O .v +00 sBiion joondreqA Stoonoy BI0800
oe
Oe ee
«<BBR-bRS JTL sae 90798 cv <ey, Aeogg ex! ibis Wig -088
“datt trefleaqs wm feamroo yd pebae tae9 oafe at a aren
est %o trinfeow seaotinam orft tertens ef yu etfs to toibrey edd
Bae ae Ro ee | seortsbive
bosdeud ner Ae vond t dost Teqqe tacts behesroe et 27 !
beotae’ ant wot states [nen nl agus selleqae blog ,oetol . .#
aad 80. Frente aso & sbem eplflegqs sand FAVE, MF 3 sotnd
: ede fend hebivorg soartnos ont sedt bee ,OOER: Yo Foatsoo
test? edd bisq ene Jats trediseteds inom req V8 vee bi yore
-feqge bs eeffeqar neewred toemeoty s vd ,brewre tts tut eN8
ite pi teny ag alan! Dow .& .B .beedent sel facout goitos <toal
ao toatl leqas vo hetasooa ener prs pellecqa yd eben ere oat
of ef tasllecqr Yo txaq edt co yoortjeed en? .goevdnco bine
eet eyan., .t9pttioo bier ng eat blag eelleqgs. tect Toette. eds
arte fotde io? doas oa? ‘Jo esoomy sc Ove, eben, ate dads beittives ;
Mati -dgteset & Sey tom bib
benal ls ent # od porete tet eee yooutseedt &' pel laqca
sTeats’ Hatrort? eben .toetTleqqs bow teeter deewsed ieemeeig.s
“rewolfo® ea el ,ocdom 1) Hy boedeun “at iar
“boe bed af tote sew T (2901) teteuAd S0 Atel edd BOY” meg
edt of show [779° orsatt vir bye .eebod ya of emeo Sebiou’, Gk :
"bes of Hote et Fedsou' . bites ents bas baw Tt “ered w doitaeeit” bagi
avaxts of fsurlay Vetw Sm bof feb” keven ed" ermmag!” bib 8
be wee ww ene: Ten nites i) eh ast ei! ele ed fan eil ois aan Ste Tih | Ray (Bes Reiter hie :
eiremvac elt qeev Steed voy ,etnoat’ . hae od--etraet en belies
[fee T oetw tis sbtoe eebor sind on” evel! T ;bellod Bids Ho an
“'GOe' Facte sons vow yar oF Sretesige He stan [ftw 1 esvod eths
“fea efqoeg xatito erons ef none ae Shed adabh” edd hsboikn tttw
ee oor 88 tuo sen Aliw I .tinia rent’ bise bs 3 rive - eau i edd ct
“eds oF tecgeA 96. ater ett} inde ped "a din "Me ed Iftw I
bro’ ed fveb os! wah" “moet poten oroxt on ‘pia’ 4oledqoB° 0° aes
© bevog weed frevoese to “omact ons va ae oF sia kas .
=e:
ee
Se
into the house the Saturday after I got out: Tf called Wre-
icgee during that time and she said, ‘I want you to zet out
of the houses, and fr. McGee will séttle it with vou.' IT left
with that understandine.”
On cross examination annelles teatifisd, arone other
things:
"He said, ‘Fannie, cf don't think vou can keep up
your payments. [ have this house sold and IT want you to ret
out. When I sell this house I will refund some of vour money
back to you." I said, ‘All right, ir. McGee, I will set out.'
He said he would refund some of it back. I didn't exnect him
to refund all my money. I expected to pay rent."
Grace Volluz, the daughter cf appellant, among other
things, testified: :
"I heard a conversation between my mother and Mr-
icGee with reference to her leaving that house- Mr. McGae
said he wanted us to get out; that he had already sold the
house- [I don't remember anvthing else."
On the other hand, H. J. “eGee denied having made any
agreement to refund to appellee the whole or anv part of the
funds which she had paid on said contract, but stated that he
put appellee out of poesession of said premises by process of
law. Appellant testified that she never said to apnelles that
hsr husband would settle with her ‘appellee).
The evidence was therefore conflicting as to whether
or Not appellant promised to pay apeéllee the whole or a part
of the funds which she had paid on the purchase price of said
premises. The record discloses that the verdict is for only
$315, and according to appellant's testimony, annellee had mid
in $625, and according to appellee's teatimony she had paid in
about $725. It therefore clearly appears that the jury were
intending to credit appellant with either the rental value of
said premises or interest on the purchase price for the period
-otif betfeo I ‘tuo fon Tt tefIe yebawsse ex3 Seuod ond odnd
duo jen of vov danw T' . bres ode boe en? Jadd amtwb eepoll
sof T tuner Aétw $F ofdtee [fiw eadov saw foe (esued end 40
: | : '* lsotbostevepas sent ofttw
goto anora ,bettttees setfeqge no ttectmexe BRotd nO )
“bbaatad
ay eat mel wove wMnetat ttaab 1 ‘etoaak’ . Biss el"
“$on of wow teem T bes bloe eruot efit eyed T -e dreamy 8 “LOY
venom uor To amon pbautes Iftw q ‘eeuod elds ‘Sfee > ned ‘Ldu0
* duo “fan Tt tw .9oroK yt tdais foe weer J 1 goy ot ‘oad
mbt soonks F6b2b t “Satbed $2 96° Gmoe bauted brnow ont bias ot
* $064 vaq oF besoeqxe 1 .yermom yor Ifa bios os
the ey
vi
srodto magne toatl feaqa to ican ons “suttov eoLtD
spettisees } saaolits
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tk rat
oh pos senttom vo veerted ‘noftapsevaoo re ‘pared & hah
| gehaw ink’ -apued Jedd antveal ted ot eoseteiet Adiw eeboli
od} Blow yheowls bai ef dadt :3uo ges oF ey bednew ed bigs
".eefo umtdévos sodmemet t'G0b I “eeuor
yoke oben uotved bhetmeb setow it .R Cbakd’ tendo end a0
ong 40 frag vse ve alodw oat Getlouce ad beuter ob jromee tgs
‘et fed? bodain ted .Soetisod bise oo brag bat ofa dotdw sbuyt
ay” skeaord vd noptwend bles Yo NoleReesog to Jue Self cage tug
tent seaffeace of bse event ode Jed+ beltisres ‘guelleqgé wal
iia!
‘.feelfecqe) ted néiw eltjiee bluow poedeuti ert
sattodw ood es “RetdorlInoe exoteradd eew eonebtve edt "4
‘4n@ # to efodw oft sellégae yaq of beeinowg tnelleqqe Jon 10
bree to Soiae bent ntin OHS co bia batt otte dolce sbaut ed¢ F
vitro tod af totbray att tacit Recoforib brooey edt “ leonimong
bia bad eaitadgn .yoomi sees e* tosl lege 0) ‘natBroods baa Bret
of? brad bat ele vromtteos a‘ eetfoqua 03 aaitbroooe baa 20nd sk
exon Grim, SAe dads nrReac® yitsolo ero ?sterds $1 eave suode
ho sufav Tatuet ott aaddte. Hate suetieqae dtbero. ot ‘g0tbnesot
bot taq. ett ee! Salag’ pe ea ‘edd “10 + aStcha: ak apeuneve Meee
during which appellse had possession of the same, the testimony
being to the effect that she went into nosseasion of said nrem-
ises on September 19th, 1924, and that she moved out of the
saine On September 19th, 1926.
Unless we can say that the verdict of the jurv was
against the manifest weight of the evidence, we would not be
justified in reversing the judement on that rround. Snoderass
v- City of Chicago, 152 Tll. 800-R05; Rlynn v- Chicage City Ry.
Go-, 158 App. 405-407; Tennicot v- Donk Bros-, 158 App. *49.
Counsel for appellant also contenda that, if it be
conceded that appellant, throuwh her said husband, offered to
refund the toney paid by appellee, there was no consideration
for such offer or promise, for the reason that annslise was
being dispossessed through forcible entry and detainer pro-
ceedings. Tn order to substantiate that claim, apnellant ‘mist
have made proof by competent, record evidence that she had a
valid and subsisting judgment for possession againat appellee,
and that she was dispossesssd by virtue thereof. No such
proof was made.
No instructions were given on the part of apnellee-
There is no serious Complaint made bv counsel for annellant aa
to the rulings of the court on the evidence. The verdict, on
any theory of the cass, is not excessive.
Por the reasons above set forth, the judgement of the
trial court will be affirmed.
J ment affirmed.
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PEER Nae Oe Me
PY Ae
PO ee ap eee Re
Se het ee eee ee ee
In The
APPELLATE COURT OF ILLINOIS,
Fourth District- Pees
fa fii Reso
---enn i) i “yf pu Py
Ne
OCTOBER TERM, A. D. 1928 Feo ae
sae we
ROBERT L. PATTON, )
Appellant, Appeal from ithe
-Voe- Lawrence Gount?
SAVILLA SHIPMAN, f Circuit Court
Appsllee* )
—— eS oe d Th. . | fa SP
OZ se eo 6 O)) yo ji
OPINION bv BOGGS, J.
On March 2nd, 1920, apneliant caused jivdement br con-
fession to be entered against appellee in vacation after the
Webrany term of the circuit Court of Lawrence county, on two
promissory notes, one of said notes being dated June 70th,
1919, for *5,873.18, due in eix months, the other of said
notes being for 32,82%.21, dated June 1Aath, 1919, due in aix
months, both of said notes being signed be anrellee and ravable
to the Bridgeport State Bank.
On Warch 290th, 1920, on motion of annellee, leave waa
given to him to plead in each of said causes, the judementea to
stand as a lien. ‘hereafter, at the Wag term, 1°28, of eaid
Nhe ihe said lek Ste were Consolidated. To the declarations in
atid causes aa eeledatidatod, appellee filed a plea of non as-
gumpeit and six special pleas, by aad special pleas ‘were
A. a 4
| i,
e Mae 1
sae vik Deere: MOP ser yates som
‘é if t “ i K * 4
; 1 aN ll i
iy SON ka REA AS Ae yagi i
Pay i Bae q
ban ah ees We HAR eG ‘ t aL aT 4 i afi Be mS ccs DA oH hey { ‘
° td ‘ eh DM CM OB oh ORAS vid ®@ ieee ;
$8 JA! pbrema a aa eel ear one
| - Cie, | aye ry a MR On dM | } .
ua a. 5
a ‘ oni are Hay aah ¥ Politiek ee Whe > gong & Bar wh
i c = “ ee a ae pete 6
eat OUTAIT 80 TALOO STA aT TS
“Jotatahd diauod
ings 3 a ‘ a A mY ety yi ith hes OIE ap
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eal ® 3 J nts t en oes, | San ae Ch sy) Ay
a peer Ql of, ugar AREOTOO, beh a
oe hat
rte ey ‘he ee? vivre Pei d Feet LYE Rath e
. at Lanite ( Lethe + NEN ic RRR a Re nM Re Sh tte Fs
o. aia
) (wertag a sito
roe soar teqna
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Peet £ es ms a ee f Ehire Bee
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het ae “ay |
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wet 233808
v ela range * ban
A hpi Baie! pte er oF peri ed ted eee une ane
\ staat ES! : RO MN es PSE et
ih ‘ A iS nee me Py ates eo ee ie a
od uaa ae <PeDo8 yd HOTAISO
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i
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in PRP EEE poe ee i my apie
no PHOS tivoniD -
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aie ye ud ‘ati Ore te ober bie “pote #0 |
att nai Fe aot: hace ae sat roc SHebit dnl eve te % pe bles ‘es
ash ao Le Hii gonbtwed 0 frlioo pivots Ee ey
aor eat betab antat watoe bree Yo eno eae qtobetwore
wT Dae Mo Yetta. ent Congenm x Fa) “oW sue! er a6 .a? 107 id
Ke OF OUk WV OCPE . Reet emcy: | beyek fo. See sil 0% gered “aed
eld sors, brie ealfaras vd AMM ented, sete bie te. sitod &
dye!
a abe ue hy ' cor it rom9
A fy, Roa me \ oy és e a." 4 , ‘ ‘Ne
aay evel .oo! Toqma 79 pore t na ‘vor nonak HO
nd ntoessbut edt eh BRUBO hler 4o fone Of beefa co ‘etal ot wovis,
btaa %o ,aRcT cmtect v BM ond ds ere*Reerent sagt ‘f ae brace
payee Past saa
a yesh
“ps for Io nelq # hells pels bane Betrbttonneo as nesueo
hh anotgayefosh ons of . pedeb! Lopnes emer persieo, bise sooo
vs i RS ate
error naela Siete! a ha tole n sivadiek ate a Siam
We ey thy ae
afterward withdrawn, and a stipulation was entered into to
the effect that any defense nroner under anv special pleas
Iignt be offered under the plea of the seneral issue. A trial
was had, resulting in 1 verdict and judement in favor of annel-
lee. To reverse gaid judsrent, this appeal is prosecuted.
It is first contended by aprellant that the court
erred in refusing his motion made at the close of all the avi-
dence, to direct a verdict in his fPavor- As there ia no sere
ious conflict on the material facts in Controversey, said mo-
tion raisss @ question of law, on the determination of which
depends the right of recovery in this case.
In October, 1918, aprellee owed the Brideenort State
Bank approximately °12,000, repressnted by two notes, of which
the notes here in controversy were final renewals and balances
on certain other notes owing said bank. The record tends to
show that at this time appellee was in straitened circunatan-
ces financially, and that he conterplated taking the benefit
of the bankruptcy law. T. #%. Mooney, the then cashier of said
bank, proposed to appellee that if he would paw 10% on hie Ing
debtedness, that he would release him Prom all Sis liabilities
to said bank. Apnellee acquiesced therein, and delivered to
Mooney his personal check for $1,200, which anid check waa paid
in due course. Thersupon dooney executed and delivered te ap-
péellee the following receipt;
"Bridgeport, Illinois, Oct. 9, 1918.
"RECKHTVED OF Savilla Shiptan #1200.90
Twelve Hundred * no/100 ---- Dollars:
In full aéttlement and discharse of a1 liabil-
ities of myself individually to the 5ridgena-t tate
Bank. Notes to be taken up as soon as ultimately
paid. )
"T. M. Moonsy,
Cashier Brideeport State Bank."
ef ofsf bevetcse PAW nod detuet te, 8 fog, ganar dy browred te
paola (af mee TOR TOL. went ec detab ye dacs toate att
fered A .+ournrt feneren edt %o neta od yebow sath oe ‘ed tate
-feare 9D ‘move’ itt Seeambvh boe tobbrey © of ao tdtaec es ae
- betwooreng af [reqgn ettt..éremn but Boe sereven oT .e@ef
tauoo ett tant Jogsileqas: vt, beheesneo ; Semthe et BL).
~Ive sit Ile to pzoto eft. ts ebem coisoavatd git tenten ti boris
Tom Or ab sierts oh oToOvs? eld ot do tprev # Foerib od 189060
sow thee tarerpr tone: at atost Latgotarn. nid 00 tol tne auot
Aotcw 36 npr dentaradob ant an. ~Rel to sotseeup 8 eeetay Hold
sooao aldde oi, yrevooe: To pis tik end. eboeoeb
en ard ie 1 ;
e
erate rramenbine. ot bere seri aras Sher | waederoo ot
Rel iA;
fo taw 90 «Beton. meet yd beoree sng a O00, sf? “ted suixorage xe
wanrah ad. 0 g.0 Lemar g's Tech? over: yevevottnes mt eel, aston ent
ot, sbrot.brooes ent ....%*ned bree ohiwe codon route a Lad%@9 no.
ie, re
A
Patter tints 4
aerowed ead env? shad betetquesnce ot ted bos: hfetonsett s00
| Shae Bo wAitend opt ond .eaneow. .N.T wal vodqinad: entd to
“eet atc oo ROL vag bivow of 92 tant. soltoqaa. od. beaoqong pel
mob stticeny ett [fe mon? sid epesfer bitlow od dacs tani |
ot ‘pesevi Tab ban cml onodd ‘Peceetipoe eof feagh ined Bares:
ig ey
ptaq sew Yoerfo bier dotdw 4608, £8 103 Hoedo. en Pe re
gs ot boner ite® bas Betdoore ‘qaaset soquetent | nae ssh ag
yc Wiebe a aad waa OLAS ae tial siitwor tel ott ‘satfog
aren, AY “) ¥00 3 vetoaht it droment tat” Fe a
Mp) Yaa
mito Dordt Lanta LE Paw, gol Loans emis elds te sect wore
sig thee ak wade Be iy ABA
ag “od ngage” ; meg | py ae . ‘Sema taa pene a0 Seaiawet? see f : ut
-arallod ---- OOf\or & ‘Bevbak: He a
“Lefdatt fe A6 smradoeth bes “fedmotdtee fled ale iat |
ofete dogen bead ‘ens. ‘os vi tadérvinal ‘Gtéeve do 6 PIG san yas ati
riademts fa, Ey) oor Ps ay ‘peed od rt ge aedor ki a gH Adem 6)
hi!
a Ob as Haid tt An Ri 8 a aE Te Ot hanna iy ate not Bee on vibe i
Pr ad INA i 9 ae el) aaa pi ia
Sind att sisenntin idea” uh sbare Kn ae eine
a OK i oe ph br (Sa Red hs anaes ee x
a
”
we %. Arnold, attorney for anpelles and a witnesce
in His behalf, teatified that at the time of said transaction,
Mooney said to appellea that "he Pelt A moral abligation toa
not let the bank lose any money ne anv obligations ernavine out
of this, and he asked Mr- Shipman to let him hold those notes
there in the bank and he aaid he would take them up personally,
and at Mr. Shipman’s direction I finellv turned the notes back
to Mr. Mooney."
On December 2Fth, 1918, at Moonev's request, apnel-
lee reneved said notes, the accrued interest being added to
the principal. At that time a receipt was cxecuted by Menoney
to appellee, reciting the giving of said last mertioned notea,
and containing among other things this recital: "That there
is no personal liability of said Sevilla Shinran for payment
of said notes, ..... that the cate are renewed so that they
my be carried along by said bank to enable the undersaiecnad
to pay and satisfy the same.”
Said notes were again renewed bv annellee, one nate
being dated June lath, 1919, Por $3,323.21, ana tha second
dated June 20th, 1919, for %5,372.18, both due six months
after their respective dates; the last mentioned notea heing
the notes on which judgments were confeasad herein:
In September, 1919, the state auditor's office re-
quired the directors of gaid bank to take up certain notes of
s&id bank, aggregating $137,153.52, claimed by anid office to
be worthless, among which were the two notes here in contro-
versy. Thereupon, in Sentember, 1919, certain of said directore
took up said notes and executed their own notes to the bank for
a like amount in paymant therefor. Thereafter, at a reeular
mesting of said directors and prior to the maturity of aatd
notes, it was ordered that said notes, with others, ba by the
cashier éndorsed to 4obert 1. Patton, plaintiff in thie case,
who was to hold the same as trustee Por the directors so taking
} * LAN
shoottw a ber Sel feqqe +o Yertosds bTomrA Je Li POE
no ttaentat? Bike SA sivFY sdk Ge Seo bebattces Wat ated’ ete et
ot mopteg? ldo) Teron eo Ffat of" Fatt eolfeqqe,ot bias yeneoM 9.)
“Sto antwate Sroktankt do vos yd vornom Vos esol Saed oft BOL BOM 4.19
sednd exons Hlot wit Fat od gamqlde .4M Botea’ on fhe Qetdy’ So ee
evifeedesvog ou moth exat bikew et ing od ie Ared ond ak erred)
Yosd Rotem odd bsrt0t bl fentY 1 sol tost) b eR olen ide idk ge" bak
a | OS yenoom er ean
-Terds «tenieey a vernoom da OL eL aoes rodmeded BO its At: OP as me
Ot debbe anted deevretit Harries edt beter: biwe bemenorr eel
vyetool vd betupexs nhw jo Feber: ge emis dade, oa” -Legtontag” edd
(aston betoticver tant bien %o achvin end aotti den (oelleque ad
etter, gael |: Pagtbe7, GAY BxarA: donde goths! gottevbe BM
OY Feary Ag 7167 rremmer tte sfitvet hiss to yetlidsi lt Leteeteqi ian at fly ay
“matt tert oe beveror ove ore eft tadd’ rere eRe 2OR bi ee PMs: fin
cali bagel oft efdede ot toad Pree ye noola’ betauso: ed am
. HER | oe enat: oot ete tose bre kag’ od
fib: yy, Diab Sek
wile: tant as: “ f
“ brocee, att ‘bee (Te. "S65 not POL (tet! emul beta, aioe,
“| pdtiom Ste ov Htod (BI. NAN vet LOLeL, attOg oul Dede. a
ented peton. ano Ppt! Feet. oft 4 Teothy sy ftoageen thedd seste
eto eno <aetionge 9d’ baweret Of sys stew peden ‘bred i
“ntecod Reese ties prow ‘etrvens bug) dotntw ng! soso edtd
"Sen. aot Fo esos tben’ pdade, oft PLOT, <redine tg 2 an bowie Abi ae
%0 epjon miattes qu exat of shad Brwe Ao prod ootth. ‘otit. Bertie
ot sotto bine vd homtate REVEAL Vere, go isaperwae «Aad. bhee
-nvtnod at eaten eestor ows etd ele Hoine Rr octet’ eaeldsron ed Wa ;
atotoetib bran ‘to ntsfres Veet .wédvesqer irs (Hogvorer?. AN EMOY Litas
16? whed sit of codon ero yfend bojuoems bre geodon bree qu Hood.
“wattmes Rota .settaoved? “ano tered s Io eo yee ok toveme oxt By
“bine an edtaotex oot Ot gored. tne brotet te bree to. gotten
etd vd ad yevedto othe .peton Bhan dads bere bn ew th 120s00
compro pint ot Ithintaly (cotset Ri) ‘daedo% od beenokne retriewo He
nota ‘on “erotoeytb | ‘edd 0% eedouyd ef eres add bfort ot pew conf ‘ ‘ Wea
the same up. The record wnoily fails to disclose that the
4 board of directors, as a board or as individuals, had eny
J notice whatever of the parported compromise of the indebtedness
D owing by appellee to seid bank, until January 1920.
| It is insisted on the pert of counsel for appellee
that 7, Me Mooney as cashier of the bank, and as executive
‘ ledge on the part of the board of directors.
| Without going into a detailed discussion cf this
J question, we are inclined to the opinion that a cashier of a
bank should not bo held to have authority, without the direction,
_ Imonleage or acquiescence of the board of directors, to make conm-
| o_o of this character, which if repeated three or four times
Sheena deplete the capital stocks. 3 2eCele 448-449. It is not
- eolang however, for us to base our decision on that proposi-
% tion alone. The record discloses that appellee, after the
q alleged compromise agreement was entered into, permitted the two
q notes to remain with said bank as a part of its assets. On
maturity of said notes, appellee twice renewed the same, and in
each instance increased the amount of said respective notes by
the amount of the then accrued interest. ‘These notes were in
q the bank as a part of its assets, gud appellee had knowledge that
1 this was true, as disclosed by the second receipt which he took
; _-tron the cashier, which contains this recital; "fhe notes herein
Bridgeport State Bank and not negotiated or transferred."
Even though it be conceded that the cashier of said
Ee ae ee
Ses oie
eee a
Te
edd tad? seolosth of @f1ae yktonw Bub dor oft hae onion ad
“Spee fad satanbivibat ae xo Pred e es photeerth ‘to ‘brsod
‘gpenboddebul oft Ie esaimoveamos Sedrorrng ead to xevedade pe btoe
: sO8ek yranmet’ Ilda jYood Bhar ot cnr baa!
eelieqqd tot Seensoo te treq edt ‘no hod dent! at cit a
eviisoexe aa fae ,ined odd to neideso es ‘casioost ‘at oY test
«i biee selmotquces ot box txontra Tits? sew loexedt ten Pie
“wwokt [na tvods Ie Bae yt trodibe “seetixe tow Sicatiw enone ties
. <sdottn 30 Baa oat to ce Wt ah
‘gidt to Gofgemoet® beltatel @ ofrt ‘pantoys today | tiny
ea toldess @ tedt notatxo ett of bonifoat one’ oe! ileal
mo tiserth edd Suede Le ,Utivodina evad of Sled od” for ‘b Larocta dmed
-coe elem of ,arodsorts to Draod ont to oemecneiupém to ep be wont
aenit ‘toot xo ‘esmutt botesqet at doliw predovetade aint to sea Inorg
dom ak #1 wOBbGD4 ol.0.k & Hoods Leddaaa ‘ont’ atelgeb bioow
— dad mo mot etses ‘Yoo edad OF an ‘Ot agnawe {Tinsecoes
‘gts codta ,colloqce tad? peaoloats brooet od * Snio Lat mobs
owd ed baddinrog yotak Borefae saw Snonoorgs oe imo-rymOD Bbegelis.
“a6 yatewes eft to daq's ee dined’ Biee Atty atenes 0d aodem
mt baa ,emed edd Béwenet oo bt sottequa sodoa B2ae ‘to te tantom
‘yd eadon ovifoogaes Bike to snocme eat Beasoront ‘soraitend sone
mt otew edtem eded? 4 tuetedsai’ homrooe mest ect to tawome edt
“toil ‘ey be Twos” batt seLiogas bing atonee att sh orag @ Ba: Pod co
Soot od MO te dcioeints Sndooe 6Ad yd fecpioats aa jest’ eaw ated
RRted veton edt"! “YLatloes sida actatone 0 tite (tebe eats most
ed? qa! Brod ed od ,botnéexe yah ehid! puted 8a 0d Be'rrotor’ sien
«, borretanert “se botaltogen son iis asp state trogey
‘Pise to tetdasd sat teat beboowto ed oe dbececordsainet ohh
Pra j is 4 Wee ; ae. aes Nea pie: ; Wiest OM ft A # , iy ei ae th) ih
’ rt \} Cay F. frst \
ah Bete ME aa UES) ee nee OMB Tia iain Mt ida DR if Ry hi Nik a ie
ay Lecfiat 52 ee 1% ae Pa Ae th Al el dates
ER MS REMMI MOM yo Day ar Mua Mee sea iil Ny KAY tod ay. ot ee
bank had the right to compromise with arpellee as claired by
him, yet appellee, by reason of having allowed his notes to
remain With said bank as a part of its a24asets, and having re-
newed the same on two different occasions, increasing the
amount of the principal by the accrued interest thereon, is
not in a position now to clait ths benefit of said compromise
as against the holder of said notes, who paid full considera-
tion therefor in ignorance of anv infirmity or defense to said
notes: é
It is contended by appellee that the bank tn this
case Could not have collected the notes in avestion, and that
therefore appellant as the agsignee of said natea cannot col-
lect the same.
At the time the two notes here involved were ex-
ecuted by appellee and delivered to eaid bant, no receipt or
other written memorandum was given by said casthisr to anmel-
lé6. The notes, as the record disclessa, were held aa a nart
of the assets of said ban”, and there is nothins tending to
impeach their validity except the testimony of annellee and of
4%. 9. Arnold, His attorney, and the fact that the aame were
given in final renewal of the other notes, which apneallee in-=
sists were compromised.
The tow be that the maker of a note cannot, by parol
testimony, vary the terms of the written contract, viz-, the
provisions of the note. Mosher v- Rogers, 117 111. 44; wur-
chie v« Peck Bros. & Go-, 160 I1l. 175-177; Usnsley v. Mitchell,
147 App. 161-182; Bank of United States v- Dunn, ® Pet. 52
me
8
_——— ee = ae ee Ld
L. Ed. 316.
In Murchie v- Peck dros. % Co-. supra, the court at
page 177 in discussing this question saya:
"The second defense sousht to be set up was an ale
leged agreement, by which the note was not to be paid according
to its terms, but its payment was made by such agreement depend-
lla at taal, iat lil
yo fLomtalo es poll eee dtiw ealmongmoo o¢ dogia eit bet sAned
of setod eft berolles gaived to SOSBST yd veeifoqqa aot nie
= oy an hve re ah FOGTE ads Bie, Steq a8 e8 goed bise diiw hina
Meer ee Lakiodalh : hhh Laem ah SNL Cale
ay aie se ‘eno }n acon. “tawmetire owd fo ome. eet, bowers
ee a ee
Te
at cero brn s tocatar ‘beuroo8 mi ae pry edt to tavoms
iene ts ete oO ny me an am teats San :
enimeaannd pe 0 “Htened sa Wests. ot wor soidteoq a nt ton
Fee OM Gm a Agi Wer MOE RE BS ay ere
~arabtarioo ited 'b! Ra ose “8? jon bie lo neblord eat tool ages BE
Sige s piy Wh ae } oe :
bien wea seaoteb | 10 se pel Naty ‘one Aa emeroan! ot ao Verent noid
nag kas ome aL Rib ae) ie
oy seh re SS aay Panne, Vcc sy Sa eet tat ORS SR AS ae aa i Bicone wae alte rigs ne ar reas
‘i -eotod
bear (ea Sint eg a Y ps a OR a i :
L
niet at cor oan lil corte ‘ve Letties.a02 in
ile 1h AY ya" ve rh a oie a OE a a laa Bo
tet? For . poitak at iS “ot wea ten acl t bas feat Sey evel ton bigeo e8Hh9
mers ON ha eee aie hee nek UA a aaa
-for tomes escton Hien %o fikek: hike uit e& see, etoteteds
ca A EUG oteh CORS A Reale rs OM: ae CS MR Eig Bat soe a pr ROP eae ¥
.omen edd tool
es bis ia ok eee aa ee RNa a
“x9 ones in goth er ati nee ow? edd ony ont gA
S Oe see ehoe the poeta edt ighake lie aR eaten |
ae daheoor on aed neko of pertev il ab ts oe! logya vd betuos
WEES aR MANN CO SR ee ge ik Mt pis) Goeth adn ae iii ed pe ys
steemh of crelfano hiae AS novia 2 AW mubsarouer Noddiww +
Ser; o be yet? ‘ote cmopofoetb: bye Der pay s& ,eetom aff .eef
as Vu ee! CE eas ine
ot a raat offi pe ai ‘ered ne ‘vined bree tc etenna : Cie a
- ae ky TE UR a ae
dosequt :
30 ‘bo8 settaans a5 econ} feed ‘edt ‘Gqpoxe yotol fev ‘itentd d
yt eae + ae
eye he 2 tat Ou aN ae aly eer ay ad
a hake
erent pty pee sys saat one "bee ventodda i) “elowtt
acy Ag one Pat Ae t i ane AYRE RR wh Lok AM
4 wea ia ‘i r Oh Fah i ay, i vee
“oF galieaen “pho bry ‘hetor ch 8b. eit to. ‘Tawoners ae 2 ie a8
2 ea te OR MT ae ee ee ke metus By cay ry a
pee fmorgnoo e1ew B
. DR ROA oe EY fed Sak Persie sen ane Sag ec Set
Seder A dor #0 ator & 0 egy age ed tate ei wef
WR ne saline er Aelbaet Be CUS pe Racine keh cee ea ‘cima 5
ine cae | Sgrs kis retttaw ett 6 ewe! ens vtav .yeomitesd
Se ae ee BR cl ; aye Redvaiaia hecer: aaeeR ae? ea: Shea Bie MeN
~ mye ABS ok <edor evid to acsotat vor
Rolla he 4a Rete dhe th ms oe, one
“f ee n iy: he Big Patt epi Hy athe
—~
EN. BGR ed ah aif: RE itay” c eew Ny
‘ fang? t |! ou vets aia Piper arr ee fr oar oro o +k ie me
ae Lay mie cai hee sna? iad
MRE a: 46% A .oog0 + ¥ svete & hottnv 2 . f “ath ©
Apeitat Bikes eee” Wess eies ie hee Mn eae en Dale: at ‘abeten
-810 58).
ha
a8
ata ert 4
Cry ert,
2
' ret SL aM hole)
sin
iG
‘3
ee ee ee ue a sited aan a tie ha
ie ue
ta taro edt +BITUD 1100 4 ae weed ye
ee ee Me Re aki
Teves sot desup eirid Be polls ak hie
Being Pack! owe Oba he Mae ac a ae a ae anes Real
-fe ne ese gu tee ad of trnivos eunse'teb Linh te can
rons cpsolala ae eae
ent upon a sale of certain property by the makers of the note.
To this proof, objection was sustained. Thies war no rore than
an offer to prove a parol agreement inconsistent with the note.
A mote Cannot be contradicted or varied be a previous cr con-
temporaneous verbal agreement, and it was not error to exclude
such proof." Citing Mager v- Hutchinson, 2 Film. FR; Farlow
v- Boswell, 15 T1ll. 5@.
That the title to the notes in question pazeed -toa
appellant by the endorsement of said cashier, and that he was
a holder in due course, is amply sustained by the case of Pat-
toa v- Young, 233 App. 516-519, being a case where the cueation
directly arose as to whether a certain note sandersed bv the
cashier of this sane bank to appellant passed the title there-
to, the defense being that there was "o Consideration for the
giving of the came to said bank. This court there held that
the directors of said bank, for whom Patton was acting aa trus-
tee, having had no notice of the want of cons
ob
aeration, the
title passed to said trustee and that he was entitled to re-
cover on the same against the maker of said note, even though
aaid maker received no actual consideration thera?or. Sse
Cahill's Statutes, chap. 98, p-. 52, a3 to what eonetitutes a
holder in due courge:
It is also insisted by appellee that notice to the
cashier of said bank of the compromise cmurported to have been
made by him with annellee, was notice to the directora of said
bank, and tnat ovis directors and annellant, sho is actine ag
trustee for them, are not ina position to zag that they had
no notice of such Compromise.
In addition to what 'e have already said in thia con-
nection, if is to be observed that, while ordinerily notice to
the officers of a corvoration is notice to the corporation and
its directors, this rule does not obtain where the officer is
individually interested in the transaction in question. Seaverns
‘ Rig RA oy Mes AUER US
Sain ac ‘to anotan ens ir wd Seto te ctedzeo ‘40 eh & mnogu ay
PS oR). MES Rae ae Cay BG ba Bh
ey Gere One Peet atop “herb adeun ect ; 0 Sat do i Abas a het, ‘ot
3 Ley past fy 5 t peat ave’ a RAE 3: steed ys ih
setor ett atin dvoete feo: ont juemaorys Lonsq & aye od tetto ne.
he Rieak tt a SAR SNR arias
=f 15 avolverd syd ketene TO beds [bexga0s off sonnso din A
fi04) t Te |: ee vy mea ey
aby foxes of Torre ton sew dt bo -ioomoonaa tedaey avo mioqzes
- . : me ide , ‘ 4 ent (itt st a 3 De et s
wolyay 2999-9 0) 8 yggenit atk sy zopek ‘pat $i sf * -Qoorg dove
+ ‘ He ivserey lay g's
ea LNT ‘a tested
* 9 } co tetads, ees
ot. beanse ol te eu ot ees on pa af plats ‘eae sad.
PR aS Tp tb
a agers
Si ee
ne eS
BAW orl tatt 2 bye , reideas bi Be Fede saad kiitcaai ons al toelleqqs
t
-ted Se aneso etd vd bertiesegn vitne el “98 7H00 “eu at ae &
ay . ¢ 6 c f Oy RAS ey
notteauvo oft sxc eeno s acted yay a-8fa aah tag saney “Vv Bos
i ‘ j : CMA ge 48 eed iy
eft nd hoavtohae ston Otago Fs med Serie of 86 ‘e208 yfdoerkb
Fatty ee Wan Mees. 4
-etent aldtit ert besned sional od aned ores eid 0. ‘seideao. 3
att =o eats eeaii wack Of Be ores sedis abet: soneted ond ,od.
Pee Ws kee
teat bred er rf domne: ats? m Yrvadd Byes ot amen ‘edd % ativin
ae ORTON 1s ae ar!
~out 8 natdow Sines iscohaued: med. 300 vioed bhee, 20. sxodoortb. 4
¥ ees
ess ood Fereheews nD 49 doew ade te ‘e03don ‘oft. ‘bed gotvad eed Ne
a ie 4
nit og betapars “ptt ex tac + one cesmeried bine 04 ‘bane el tig
ep heat | a easel
¢
POLINA Ta a Cae ta
seh hastened + oot texebi eros Isugoe on bovtesen “83 gat ‘Bbee
PD) eet A By go
aor ere radon hice 10 ya vem end deniose ¢ exes ost fo. Wecioh stg
"e eotut! ones dete od we. ca “| . ee “gas eodudad e'ifidso
2 side one He Y SIAN RNG ee Re
“eems09 ub pet tebfod
‘edd re et ton tact setleqqs vd begotent ‘oela ee aa
PRU Sa “ih te
need overt of beirogwit ont moreno oct 38 ined bie to lagi ey
i A ek
bree to ‘grote fh pnd oF ‘aot toc eaw wad (soe teie miei yd eben.
i it i ee Apel y z y, hay
bas Herndon #t ‘eae inet tecns baa arodou 1 Ladi “aed” ‘ee ee
Ra hy ae
eet acid fant) eRe ea: erated: 8 61 “ton. rer ‘(ues 0%: ‘eeteuys
BF Ag O's Min,
mbaarsside isis Ae Jo eoltot on
45 ail
a ie, ; ae a i
-1o0 nidd mt Brae ‘vbnesth evar “ov ese of ehstste at,
j Ne. be RA e yt i} pie
ot gotten yiitaentbhye ‘of tifa: Amatd Mieke ed. of ‘et ah a
y
‘ Ses ta ah % Hi viel ie iat bt, eit i hy
bre Not terran oe a poy sfsae mye not aexodto 8 Has ete0ltto ont
big) ie Sh,
or mentee. pe deter ni Sahat ne parte fie ets 3, coodeeure | ‘adi:
el Pa tpeORTS 38} RT COVES A Ee MM TMM ol eR Rk ORS We bad
gE Tsse cottnenp rt cofsonenand es af.
- el viel Sri ubtvesor
Were
31 aia
v- Presbyterian Hosp
ii
tal, 173 111. 414; Wheeler v- Home Savings
ae
Bank, 188 111. 34; Higgins v- Lansingh, 184 111. 201-797; Hanne-
= —— ee
ken v- Sheaff, 226 App. 386.
In Seaverns v. Presbyterian Sospital, supra
&
—_— _—
sosoital, supra, the
court in discussing this question at page 4°0, sava:
"On principles of public policy, the knowledge of the
agent ‘Ais imputed to ths principal. But the rule does not apply
to transactions such aa that under consideration ‘the nresident
selling to the company), for in 3uch 2 tranaasction the officer,
in making the sale or Conveyaiancs, stands as 2 strancer to the
company- (Stratton v. Allen, 1C. #. Grean, 229.) Wig inter-
6st is opposed to theirs, and the presumption is, not that he
will Gomeunicate his Knowledge of any secret infirmity of the
title to the Corporation, but that he will conceal it.”
In this case, Moonsy informed appellee and his cnun-
sel &h the time of said alleged compromiae, that he felt that
the notes should be paid, and that he himself would undertake
to pay them. This clearly indicated that Mooney desired to
have the notes left with the bank a3 a part of its aanets, and
that, for some reason in connection with the taking of said
notes, he felt that, as between himself and the bank, he should
make the notes good, and of this appellee was well advised-
It is insisted on the part of counsel for anrellee
that appellant is seeking to recover the full arount of said
notes, without giving credit for the *1,200 paid by appellee
thereon. The record discloses that the check piven by appellee
was not made to the bank or to T. i. Mooney as cashier, but to
T. Me. Mooney. There is nothing in the record to show that the
proceeds of this check passed into the asseta of the bank. The
record further discloses that annellee, when he left the notea
that were in existence at the time of said allegsd compromise
with the bank, did not require that any endorsement of the
$1,200 paid by him should be entered on said notes as 4 credit,
acta etoR-v qaeleot# (: Eb ak fl Sey seen pelsedydaess. ¥
ne aie tate an St
abe | oe ROBE 7 oga 980. 220088 oa
Pont cence: <TedtiqioR getradudeeyd .wopggevess M160 Go yn
:evern Off eveq Ja nottesup efdd gotenvondb ni davoe
efF096 aabal wont eft .volfog atidua Yoreelqioning nO
yiqas tor seob efur edt gu@ .Leqioniaq eff 03 botuqni el, these
frobtesae eft) cottevebreros veo Jedd ee dome, esoisosenerd ot
eTHOFING |At ootdoerabad + dooe ot set qlgmaquo® erfdy ot gntllep
BAS ot sovnenth # se BLaete ,aomeyevaoo 10, ef se edd) gaisem of
So khketrr ath (O88 gabene wh uo J \elta ee nodterte): ; 1 Vereghoo
ar tedt tow yet nottamuessq: edd. bee ,ettiseds of Heepeqqo; ed. dae
ett So ydirwi te! ¢enece ves to esbolwons alm edmolmm moo Ile
aay "of! Lesenno ate af dads cud .noitesog te®, end, of ef tis
-otro) pin fee sé ihags frotreh 03 VEN OCH: 4 QPHO PBF MT i er heey
gens sfeY art tedt yorimovmes thepelle bhea Ie ool od tate
etatrobry br vow *feemid eft dadt bre .oteq ed) blwode eedgen, , edit
“ed bevheab Lienien jatt betcothrh yhiselo efdt> |.wedd. yaeq) od
Box (ndonne off Yo Juag «© em teed edd dtiw, del eden edd. oved
biee to aniled oft idrw codttooenaoom mturceaet amos, 40% .ded.t
pluoda ad Sed adit pos Meemit meawsed es. dads the? en vaedon
-bentyvoes flow eaw eslfeqqs eidt to baa ybooy aston edd otest
eelfsras tot [santo to tesq ett ro Dbetekect et or
“obtes %o totsone £f0% oft tevoosr od gai seen BE tuelbeqqe dadd
\weftenge vd biaq OCe,i% ett cot ¢ibento gaivig tuodtiw eestor
“galferrs vd tevin Yooto eit dand sesoloa lh prover oft » sooneda
of tud .vetdedo ae yenou .o.T ot So Ap ad) edd ot ebam Jot eaw
att tatt wore oF byrooey ons at satdidon- eb erent, iweneod «ky aT
ant? .twed edd Ao absess oft oft! bepseq Moedo eidt to ebeesoig:
omston ott Ftof od cadw pealleqys tend nevolortbh terigau? brset
ge trovgrqo bers! fe Blas to omit oft ae oonederue mi esew tedks
nh vets tg terenwewohee vos techs ewbeped dor BRB i etl ad etd. adiw
‘Oleg se bero aréereeton |‘ biad ino bere des od ‘biuodea mid yd bled 008, Lh
and in renewing said notes, he renewed the same for the full
amount of the principal. with the interast added from Sian to
time. He is therefore not in a position to claim credit Por
the $1,200 ao paid by him to Mooney. |
Errors wers assigned on the rulings of the covrt an
the instructions, but in our view of the case it will mot he
necessary for us to discuss ths game.
The questions involved in this case are Iuestione
of law, and if Wwe are cowteat in our holding as above set
forth, the court should have directed a verdict in favor of
appellant. That being true, there is no occasion for remand-
ing this case, and judgment will therefore be entered in this
Mf court, confirming the judgment originally entered by confea-
sion on said notes, at the cost of appellee:
| Original judgment confirmed.
2
TAM? 983,703 omne, pat, beweger, eh, S0d0R, HEAR Bod se
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Term No- 50 Agenda No. #0
ied {>
In The KAA
vf, :
APPELLATE COURT OF ILLINOTS, Q ke, So SY
j é
Pourth District.
-—See ee
JOHN DUFFNER,
Appellee,
Appeal from the
-va- i
CLEVELAND, CINCINNATI,
CHICAGO & ST. LOUIS
RAILWAY COMPANY,
Appellant.
)
City Court of
: Granite City:
)
On December 14th, 1924, appellee, while driving a
Ford Coupe on Pacific avenue in Granite City, was struck by
a freight train of appellant, his automobile was seriously
damaged, and he sustained personal injuries from which he had
not entirsly recovered at the time of the trial. Suit was
instituted by appellee in the Cityv court of Granite City to
recover for said injuries-
The declaration as finally amended consiated of
three counts, and Charged the negligent operation of appel-
lant's said train through Granite City and across Pacific
avenue at a high, dangerous and excessive rate of apeed: the
negligent failure to ring a bell or sound a whistle as re-
quired by statute; that appellant undertook to furnish a watch-
man at the Pacific avenue Grossing where said collision occur-
ee “ v ‘
an ¥ iN ;
fF L j 4
é
% B: rs {
“hy rs q ;
hen ; ;
mh z he be el pads a ;
OF ca! sbrren A : : Pai. v ' 08 ol ateT ;
cA, ly Fe AN ORS BON see is NS
SRLS , 3
AS od? oT
aN MA A “S| BTOUTIIT WO TAUOD wWrAdgagth 66 dees, wh
Nee OD" gitar -Sofadet@ Adawoet Era CREE ee
se’ Peto
Ga hail ACCI .d «A cMAGT WaGOTORG” 66 oe Ahh
ABS :
“a ‘
a ee et " r ee y . ‘
; HEAGHUC AOL.
: . 6eileqg a). Pe: Vine BF
ett mort Ineaqga ng Rees We
ri ee, ee a hr
LYAMHT ONTO (CAI RWSLIO
eIU0l .Te # ODAOIHD
<YRAGMOO YARII Ag
So d1ryed ytd
-yd?O oettoe i
ee dl [i aed oe LO cl Oy
eet ull en } $aeflecqa |
Fe ad Bel S ASC. ee re
mo ee oe a
»& »2nD08 vd KOTATIO
gs amiviegb eftcw ,eellsaqs ,sS0f .dsOf tedmeoed a0
vd Noutte saw ,vdiO ettratd ol euneve oftiosd ao egrod S104
vieuoites ssw slidomodus at doe! feqqe to olets ddagiet? a
had ef doridw ror? esivutot (scoeteq bentasaus ed base _begameb
esw tive »[atrs ett to omit ofd tea berevooet ylettdae fon
o¢ wht etioerD to ieuoo yite estd ok selisogs yd bedudivant
-solru(al bige 10% tevooen
40 betetenos bebrome yiflanl? ee meftaralosd eft ti
-feare to cottereqo imeaiiass edd pegtedo brs .adnvoo eens
DPUOST @antOK bas wth etinayw: dgvorit otent biee e* doe
eft -besae Jo eter eviaseoxe bos. evoreansb vflg Ea # d& ourove
-ot ee sitetdw #2 bawoe 10 [fed # anit of ewiltat Joogtigon
-fogaw s defor? ot Yootrebay inet heqre te0 ietusede yd betiup
| -1190n sofetifoo biee erate: qiifeeor euseys ofti089 eds de mem
red, and that on the day in question, as annellee was annraach-
ing said crossing, said watchman negligently failed to warn him
of the approach of said train, whereby said collision occurred,
resulting in the injuries sued for. All of said counts alleged
that, just prior to and at the time of said collision, avnellee
was in the exercise of due care for his own aafety. To said
declaration appellant filed a plea of the general issue, and
a trial was had, resulting in a verdict and judgment in favor
of appellee for the sum of %1,000. To reveree said judrment,
this appeal is prosccuted.
: The principal ground relied on by appellant for a
reversal of said cause is that appellee was not in the exer-
cise of dus care for his own safety just prior to and at the
time of said accident.
Pacific avenue on the west, and Nicdringhaus avenue
on the east of the hereinafter mentioned tracks, form one con-
tinuous street, running practically across said entire city.
and is a much traveled street. Ssid street or avenue is
crossed at right angles by some sixteen or eishteen railroad
tracks, which run parallel to each other and occuny a anace
of some 200 or 300 feet cast and west. The first six tracks
on the west are not used, 32nd were referred to an dead tracke-
the other tracks consist of the main lines of the Wabaah,
Burlington, Big Pour, C. t E. I., and the C. & A. railroads:
The Wabash has the most easterly of the tracts: the C. tA.
the sost westerly. The Big Four and Alton traing use the C.
%* A. tracks going into St. Lovis, and the Big Four tracts com-
ing out. At the time of the injury the Big Four train wae
running on the ©. & A. track, which was the Cause of some con-
fusion in the testimony, some of the witnesses referring to
the G. & A. track ae the Big Four track, and yice versa:
With reference to obstructions to the view looking -
north @s one approached said Crossing, appellee testified:
-forerata asw oalleaqds ae tottesup of yab soll es baat hoe . ber.
mil aver ot bol ist yitoreatiasn marcdodsw bles ,.xetteseoto bres act
ebeyiuooo Sotalifos bise yietedw ,.ateys biaea to mained: fal att Ip
henelfia atjowos biss te [fA .704 beuve seltutet seat at denies
eslieara ,notsiffoo bise to exit eft ta bmw ot soltq seut .tadd
bier Of .vtolge ovo Bik to} oreo Sub Yo eetotexe effi at eaw
bo pevert Terence oft 6 Ref # helt? toelfeqcs notsetsi deb
ove? at Foreonen best bra torhb rev bt &T oofdivueor , bar eew Istas 2
‘i devata hut bran gavevet of 9.000, fF 9% tie os to? eelleqa& to
Ri .betneseotg al Iseqqe eins
e 0% toalisars vd ao beltfet bovors [Ag tontag oat. ees,
~texe edt of jor saw eelloqqs darts dt 6etsd Bran %0 "debbie
eds ta bos ot tofsq dept. vietae swo- etd tot erso eyb Yo eafo
ptr Kaisa ae stoebroon bree to onts
BUMOVK. ‘snihantenett bow ,seew eds a9 eunSyR oft road” Yd. ae
-oo ero mrot, ,.atoatt benotsnen vedtartever eft to tase ent so
.Véfo erites bles ecotos yf Sorsobtq ymionet ,teorte avout).
ni euneva vo Jeette fis® <teerde befevets toum & et bee
beotf tat. veeidute so veedxte ames’ yd sefane tdgit te beeeoto
sone e waxtoso hor vette doge of Tefleveq tue dstdw .edoaets
etoatt xia sevit ott ldeew bae dese ‘toed "OO 16008 ‘eros Yo :
~pNoRTF SOB nh lds bedtetoy ovew bas bods tet eanw Seow ede od
(ifieada® off 80 sent niem SHd To Mine stoett "retth Shh
sepaorfisy .A #30 ees Bia Od. Oa" LO yamOe gta! meager
cA 4.9 effd petoRts ont to vi rodeed! seer oft eat desdaw oT
Oo eft osu ententt Ost A bee yuo greet? o, yfeeteow seer ont
-mno sYosed quoT ataledy Boe petted .¢R’ eam gnkog’sxoart .A 9
pew niesd eoT gtd ofeo preter eds Yo omps eds FA olgue gar
-109 sion > Cayo eff ane Cotte (eoets A #00 Gad ad ga batioe -
OF antynetay sospentin ets Io enon (yiwodrteet ens at dotent
“segev éaty bis (soars 1068 gia sat we Forad: la ew Ody
~igatseot wety ott ot ano MeuTtedo St eodereteT AIET An: ete RA Co.
oeberthta6te aekleqas _26iaseto Bias’ bedosotgg 8! end ex stort .
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4
"AS you approach this track from the west there is a bie plant
on the left hand side, called the Américan Steel Foundry. aAf-
ter you get east of that you find a building £0 or 28 Feat
wide and about 100 feet long, of Reimer's Coal & Feed Corpang.
The next building is the Terminal freight house--about 29 or
25 feet wide and 90 to 100 Feet long. Its length extends par-
allel with the tracks, and the track is about 20 feet sast of
the east side of the building."
YW. S. Gray, a watchman for the “abash railroad at
Said Crossing, a witness on behalf? of appellant, teatified:
"The ferminal has a building west of the weet rail of the track
on which this train was coming. There is about 20 feet Pree
space between the Terminal building and the west rai1."
Appellee testified that on the day in dguestion, as
he approached said Crossing, he wag driving about 20 miles per
hour, and that when he got about 20 or 40 Peet Prom the track
in question he came “almost to a complete stop." He further
testified: "I looked to the south and to the north, but vou
can't see nothing until you get right up to the corner of that
building. Then I started my car and was running in low: At
the time I came almost to a stop I saw a watchman standing on
the other side, Close to the Sidewalk, about one or two feet
from the sidewalk. ..... When I observed thia watchman, he
Was standing there facing the shanty (watchman's shanty), and
there was another man standing on the sidewalk Pacing him, and
they were talking together and he had hia stop signal in his
left hand, and it was hanging down, and that made me thin thate
the train had just passed. ..... After IT glowed down and
started up again, the other fellow waa Saving something to the
watchman--I know the watchman there--and then he started running
toward me and waved with his paddle to stop, and I looked at
him. I didn't know what he wanted because I know him, and then
when he points and I looked, the train was almost on ton of me-
“SneIe Std & eb evens) deer, edi mort soard, eift doacigde toy. Ba”
Lea. erbavo® tease naotrema ot bef fso ,ebta baad, dtel, aft mo
“foe2 89 to OF wnbbi rede bolt voy sed, To. Jane tex. vor tet
Qyreqrad beet f Leod a'semieh ‘to .gtol seet OOL suods bas ebiy
vie a Of Hod e-eavod ddyiet? Dengmmet end ef satbiiud axon ett
-t8¢ eboetne ie edi >.amol dee? COL of OF bos btw $907 as
Io" tane peat! ‘08 duods ‘ef soars eft bos ~exoe1s ott Adtw Aelle
“.antbiiud,.odt Yo ebte tease “orl
ge prodht as desde etd to? cemdodar. & (yA 68 Ey vase ay
shortisnet etaafleaqs Yo steed 19, sreatiw. 2 uals bhee
Sone¢ 4+ 30 thar seew edd to deow gatblivd 6 ead, lexiated oT”
“ger? Josh OF tuoda at atedt. sndines esw wierd. etdd doidw mo
“trey geo oft poe nethfind Iemlmzel edd meewted epsge
ne .antteeup af vab etd oo ssid betiiseeds eelleqaé \.) ./ 0)
4a ROD hOS tuods anivind eaw ed «Rilosono brea. bodoroigqa ed
Moet ort word toe) OF 19 OS troda. tog. ed oecw dads bap . wos
erty” SR "odode etelqnoo # o¢ dromis” seman of sottreup st
yor tut ction stid-ot Loe ‘dduom oft oF bedool I". theliitses
sant Yo sverrrao and cod aus. drigit don voy Litas gaiiison, sen, t'mae
ga wol (gh Actoows way boa ser ym bedtste I. med? -gatbiind
(G6 adthaate rendodaw 6 wee 1 qgote .@ of deorhe..emso 1 emis ond
‘ae ‘ows so so tueds oYiswobis ert .od eaolo.,ebte sertto odd
od ivemdotew Bid hewrendo TadW idee) sAhamebie(; nt nee
pas’. (etiede slesetdtow) yiceie odd golostvereds gatbues
bers enter yttoat Nfavebia eds go ge fhoste, dem seddors Baw prea
ett nf Tet te qose eid beri vec ba 8s rettopod gaitiet,ovew.yveds |
er bit Shad Wond foe (ood geigeed eom. Ft. bos, bos, Mol
‘Bas Swob bowels! Toda 4h eas sbereeq dest) bat atett end
Stead shIddenee antven exw wollet tedto edt). atanae qu bedtete
antonue Bediade ed trertt pow-+ereds memcodtew: edd: wou! ‘Te-comdodor
fa beXoo 0) bow’ iqodeot albbea’ oie aise bevew bie on) baawod
riot Bas «MEA wou 1 seusoed bednew ont dedw won, $1 abkb T amid
‘it pst Ps bite dudwtw vor p cited: en gbodlool Tine adnted esl avortw
a ee Oe ee ge eS
Sr aaa ae) Cee ne a a ao
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The front end of my Gar was risht on the Big Four railroad
track. I was in that position when the watchman started
toward we. I was running slow. The best I could do was get
off. I put the gas on trying to get off. The train struck
the rear end of the Car and side-swiped me. Prior to the
time I was struck there was no whistle blown on this engine
that struck me, and there was no bell ringing. There was no
warning of any Kind given of the approaching of this train."
7 Gus Tom, a witness on behalf of anpelles, among
other things testified: "I was coming from work that dav, a
little after twelve o'clock, and I Come over the tracts and
a fellow at the first shanty (shecwatehzan}, he came out to
stop and I stopped at the next track, and ata IT saw that
train coming [I stopped right away, and the other watchran--
I looked over there and he was talking to the other fellow,
and that fellow just hit him and I Rear the wreck. I never
paid no attention how long the watchman near the middle shanty
talked to the man--it all come at once- T saw the watchman at
the middle shanty make like that (indicating) with his hand
when the train was Coming about five or ten feet. Duffner was
right to the track at that time.” This witness also testified
that in his judgment the train in question was running from 25
to 30 miles per hour; that he heard the whistle on the train
blow once before it reached the ainda that he did not hear
any bell ringing-
The witnesses on the part of appellant testified that
the regular whistles were blown. and that there was an automatic
bell on the engine which was ringing al1 the time as said engine
approached 3gaid interssction; that appellee was driving at a
speed of from 25 to 40 miles per hour, but that as he neared
said crossing he slowed down and then afterwards speeded up:
The watchman and certain other witnesses on behalf of anneltant
testified that said watchman held up his stop signal as apnellee
_baont bar 9G aie etd cto stata Faw ISO YM on ae tsext ed?
4 boivate. qemdiod aw edd enw aottteog. Jas. at pee T .ftoers
on, esw ob alyoo. I tead. Sat mele gatogua caw. em brswos
Hounds sient ont -7I0 fon oF peters oO e&y ond dug cs 2@,
ects of totad 79% beqive-ebte bos igo edt Yo Aso wast, esid,
oar
eotane obs so owold eftetcw of sew. sora adlangnin cade Shinn
se ard
boty | etc exer -anigats cee. oo Bew etend bog 2 Od, AOute seats.
| "eotant nid? %0 20 tdosorqqs ont Je sevig bald, yg. Je Bo. Locigw,
. paopes. abel loqas 3o Afaded eee eesudiw & hot eyD. |
8 wah tacts sibel mos? snfmoo saw 1" :beitigess ranlult, wadso,
PB satale pvoand ons 18Vv0 emoe, m bon eFootD'o, eviews tosis. pli site
of dup ems oni tencteseneds), yioede Jert? edd ds, wolie? a
stadt wee z oesy bre (yFoets f¥eg pas, $s, beagote, J, bas Gods,
+i pmeniDg aw. metdo, oft Boe yV ere sda ia, boagota: 7. gatmoo ole
_svortes seddo ata ot gcisias esw of bos exedd revo bexool 1.
seven 1. -toerm eas zaet I boa wid, Jtd foul wollte? tad¢ baa
aietenny pi
vinerin etpptn ens eal feadotsw edd ROO! wor moltqgesdss 9 ohh Me:
te sett eds eae i Pinch a8 em00. Ata. Ai--oem ods ot beatles ,
_ bred nt sister (avtaeotbal) sags etit ex Sat, vineia (eibbte edd.
288 soo et Oe fete it 70 evil jyeds amigo? ese ataas ad J oene
borviseos oats seonstty elat ".omtd dads te dostd edt. ot, Stats
ae sont sot ows Bee hot Taenp nod Lets. Sis isem but, eis Mh dtedt .
ment edt 0 alietow he dol basen oa ead itso Fed, Bella 98 oF »
neert ton bib ott farts iat asoro a3 bertozer 42 2 Toted sone wold.
vie Su a sh sea tas ACR saat AB He yahet 09 ah alagivs Lae te +
tact port trot year togaa 20 3 dasq edt. He gona
of toon te a eer enent tacts poe Erol Ss. axew seftetdw sal aes. Med, ¢
Ab seis (e et
i
entuae bres hit ont, ods {18 Bai aeks ese Aotdw Lae emia ge POF O42: »
B as arava paw ‘eel { oaae Jang, Asotsoensesat AS eee
bevesn ed ica Jans oe a t8O8 19 sella oP of 6& PO moe, 2 G
Dy fx Pes alse ¢ Reo MKt An ase cm iy BAN
Rb ae, pbaeeres 3s, Spas aint Mica Pokey b bowels, sf po tavore alae.
tet Tene to rected 89 ponsondin 18 ie pial bos cemdotaw ent,
*
sof feags an Tennis ere etd Pane candor PY, Bh ae ate Rea a eae
m, pact RES
+
af
Re, OE A gl Ce eee eee,
Pate
ae
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aot abe
re me Se Ree.
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approached said crossing, but that notwith-tandine, annellee
ran his automobile on the track and was struck hy said outie
It was @ question for the jurv aa to whether or not
appellees was in the exercise of due care for hie own garety
just prior to and at the time of said ollinion. Tf the jury
believed the testimony of appellee with reference to the ac-
tions of appellant's watchman, he was neglicent in failing to
warn appellee of the anproach of said train in sufficient time
for him to stop his car and avoid injury. The tury head the
right to take into consideration, in determining whether or
not appellee used due care in approaching said crossing, the
conduct of appellant's watchman; in other words, if aprellant
maintained a regular watchman at said Crossine, persons driv-
ing along said strest and over said crossing had the right to
rely on said watchman using reasonable diligence to warn them
of the approach of trains. C. St- &. & P. R. R. Co. v. Tuteh-
imson, 120 111. 587-593: GC. R. I. & P. Ry Go- v- Slouch, 174
Tak. 58-592; C. % A. R. Re
{a
Q- v-. Blaul, 178 111, 13%-laa;
Deheave v. Hines, etc-, 217 App. 427-471.
In Chicago, R- L. & P. Ry. Ca. v- Clough, supra, the
court at Page 592 in discussing this question, save:
"A flagman was stationed at the crossing in question,
and it was his duty to know and ceive timely warning of the near
approach of trains, and appellee and the public had a richt to
rely upon a reasonable performance of that duty. The refusal
of the Court to give the instruction was fully justified by the
decision of this court in Chicago, St- Louis ¢ Pittsbure Ry.
Go- v. Hutchinson, 120 T11- &87, and other caser.”
We are of ‘om opinion and hold that the verdict of the
jury is not against the manifest weight of the evidence-
It is also contended that the court erred in refus-
ing to give appellant's fourth refused inatruction. So far as
said instruction states correct principles of law, it wae cov-
anffoata .antieatestinvion ¢edd tud ac teepyo btee’ bedosordqe
ve tent fis vd douete esw boo toa rd oft mo efldomotve att wet
for 10 ‘torte ot pa eth od Soo oofteoup # Baw ¢T 6 885 8%)
vietaa nyo att xo eteo eub Yo eriovexe edt nt eaw eelleqaa
evil ef? IT .ttotatifos bres Yo omit end te bee of tole’ tent
-on afd of gonaveter dite eolfeaqe to ydomt tees edd beverfer
at eakliet nf tesetfeod sew ed .memdosew e'trelfeqde to’ eword
ott duotoretve wt attend bres Yo dokocqes eft Yo eeffeqds aver
att bad veut ef” .eaute! brows bas tao eft gote of utd 10%
‘ao todfertw atilatmvedeb of .cotterebrenoo otmt oles of thats
eff atimporo bles aoidosorqqe vi srs eyb beew eefloces ton
trelfecds 9} (pbyver tetto of taemdodav a't¢ualfeqqs Yo toubaod
-vitb anoetoq ,nrtaseS blee +8 namdotew weliigot 2 bettPesnt sa
of fifaty etd bad geissovo bites tevo bas teevte bise cols yal
man? ovaw at sonestlib efdaccese, attod hemiotew bise fo yLex
-folu sw io lg) 9 # 9 132 19 Lentetd to Hosoxqas ens Yo
“pet Uaeerd -v -oD <7 02 2 «I of JO: Bdd-Nee LITT OSE \aoeot
aABT-HE rt Aer tuale <¥ +09 «2 oR AP Cd Yeealtase ret
ark Bie ) TeR-e8 -o7A VES ,-oFo .senth iv suestiog
‘odd segue wiguelD .v .o0 .yn oF 2 o VE possdicO or”
: a (por sa euy eins nofesuoeth er sea 93.27 ‘te dais
cnobieoup et. nuteeore od tae Bonet fate caw cement eua, ote
neon ett I xetotee yferid evita bos wont od yaub eto saw +E baa
‘od Sdn ft & bed offdua edt bre’ selleqqe bse \entest 40. Monona &
f[rautes) ett v tub tats to eorex? req aldenceset & oun ylex
‘oat of Bofttteut vite ‘eew moldourien? oft ovis of fxu0o edt 0
+3f aoe artdets?9 9 etod «32 ,onsolsD of tatoo efdd to motereen
"aeons sotto bre ,vR -IfT O8f seeenddasel Lv 90
eft Io totbyev eft tard Bion pre moto tae Lan to ers of
”"Seoreptye edt 30 fri tow Yeetinan etd | tentega Sout’ et yuut
-duted af beste #ru0o end sade bebresdeo onta ef at) 0" Pie
“ge te) 028. .notfoudian! beewien aeiee eléselfedan ‘avin 09 ‘grt
* vod ew $f lwat So nelgldates soeesbe aedesa nel demchome pte’
ered by other instructions given on behalf of appellant.
That being true, the court did not err in refusing this
instruction.
No question is raised as to the rulings of the
court on the evidence, nor as to the amount of the verdict:
For the reasons above set forth, the judgement of
the trial court will be affirmed.
Judgment affirmed-
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en
Term No. 52 Agenda No. 4
In The
APPELLATE COURT OF ILLINOTS,
Fourth District. fo TF
OCTOBER TERM, A. D. 1928 , | ei
ALBERT SENCIPER,
Appellee,
-V3s- Appeal from the
City Court of
Granite City,
Tllinoia.
H. ©. MASSEY and ROY W.
MASSEY, Co-partners, do-
ing business as MASSEY
BROTHERS >
ee re ee
=)
a
Appellants:
ay. .
XY &
OPINION bv BOGGS, J.
This is an action in assumpsit, instituted by anpellee
against appellants to recover for an alleged balance owing by
appellants to appellee on a contract in and by which he wae to
drive a milk wagon for appellants, who were engaged in the dairy
business in Granite City, Illinois: The declaration consisted
of the common counts, to which appellants filed a plea of the
general issue:
By agreement of parties, said cause was referred to
one Wesley Lueders as referee, to take the testimony in said
cause andj/report the same in writing, together with hie conclu-
sions of law and fact thereon. The evidence was taken by aaid
referee, and was reported to the court, together with hia con-
clusions. The referse found and reported to the court that
§
Ao, oH BphrrenA
, 2 ty a ‘ext {
ont ae
: i esi ein Tae ay eee RO See
{2TORTIIT 70, ba tua emaganata 4
ria tiger A pach ae A Q
of a pat sorateta CPTHOR moe a,
eg ON SL US Gi
Ch eae A Fe Rh,
i my: 8 HSOf .d |. A Maar ARAOTOO
. ‘ Ne rf
5 fi a] Nae hi 3 ‘ om ee e as: Se
¢ ro ae a pers hae i" ;
= : avi aasare erry Sa a aE ey, 9.
usp Sag 138 af oR
Yous” ( (ABI TOUNE TaWEIA
-eerleqqa
adit mor? L[seqaA ( “av-
%o gauod vito
evtiod esinstd -W YOR bos YHESAM .O .H
sptontr gt ( -ob ,evedtreg-00 para 2
( YHeBAM Be bain
( -egnelleqaA
ea OD: «Bi L a ey x
~b .Ben0d vd ROTHIFIO
ae ee ee
eelfsqqe yd bejustseat .tieqmyses at eeteoe ees et ‘ets?
vd gniwo sovaled benel ie 8 102 tevovet oF etoselleqqa sentags
ot saw eri dorty vd bos of Joayino® # fo eel feqqa of agua! Leggs
witrb ont nt ne aaa ayew on etoaelleqqe. 10% Nogew afte g (eviab
boseedas notsatel Seb est -etooliit .ystd etinaya mt 50 Le
adt+ Yo eelg & beri? efnalfleogs soidw ot ,eimyoo: Homnoo cand +0
| : 3 east ferenen
oF bentoex paw sees bise eelsitsg 2 suompenze ys
hires mt eoortsees: ond estes og compete ea erebond rel aor eno
“Tanne: ent ite nentenot cagitiar of emo edd srogenkbas eaueo
bran vd noted BBR eousbive oc? snoerosd dost ae bbs to acote
a a
“noo atd adhe tetitoand «F109, ond, pt besrores eon bas ‘seometer
ener edt -emoneuto
“a
tect t1010 9 pele ot bodsages boa bauo? 98
2
«
there was due from appellee to appellants the sum of #99 ..85,
for which judgment should be entered against appellee. Excen-
tions were filed to said report, and on hearing, said exceptions
were austained, and the court found that after allowing apnel-
lants all amounts justly owing to them from appellee, there was
due appellee the sum of *#345.77, and judgment, with costa, wae
rendered therefor. To reverse said judgement, thia anpeal is
prosecuted.
The principal contention of appellants is that the
finding and judgment of the court is against the manifest
weight of the evidence, and that the court misconstrued the
contract entered into between appellee and apnellanta:
The record discloses that on April 24th, 1922, appel-
lents entered into a contract with appellee for his employment
as a driver of one of their milk wagons. Said contract, among
other things, provided:
"It is hereby agreed that for his fanpellee'sa) services
rendered in behalf of the company, a3 herein provided, the said
driver is to receive the customary wages set for one-horse
drivers by Teamsters' Local Union No. #1, which is at this
time 835 per week, payable weekly. ..... The hours of service
to be set by the company, and to be not more than 84 hours per
week. It is further agreed that the first *30 earned by the
driver shall be retained by the company until the termination
of this contract, when it shall become due and payable to said
driver."
Appellee began work under said Contract, and worked
for a short while, for which work he was paid by appellants:
Thereafter, in July, 1922, he again entered appellants’ emnloyv
and continued therein until March 12th, 1924. Appellants paid
appellee 835 per week for his services rendered up to June Ist,
1923, and *38 per week thereafter. In March, 1924, a dispute
having arisen between appellee and apnellants as to the ctate
78.08% So muse etd atnelfeods ot eelLeqae wort evb eaw ented?
-~ceoxt .ealfecqe tentane bovetoe ed bi vores Snembu; dotdw vot
anoksiqoone Bras .attreeni oo bos .droqer birse ot bell? evew acehs
-fecaoa aotwolle vaste tedd bouo? tevoo edd bose , beri atane or 8w
new erets .sellsaqa mor? madd of acttro sisighet ednitroms ifs wsaad
new .eteoo stiw «tremnbat ine erm ana ‘Io mye ets eelicqas epb
at faeare Leaks Giwadebet bhas nesenins of .totetelt bevebues
Si -bessoseorg
att dant of AE NG to eu radeduoe pang pi edT
“ih ssettaar oft jantans si dygoo off Yo dnemmbut bas goibott
edt beysteroorim druod oft sats hos . OOMeBENG: edd to tig tew
“adostfeqqs bra es! laqcs nvoades ota! beresae toatinoes
~fsaqs eaer edd Be hag ro Jatt genet OB th brooet ent hy
fovomvofame whet a kel feuen fiitw sdersage ir) eink beredas agus!
morome ,doasitnoeo bret -eronsw Sligc ised 90 eee te ped te =)
be “Ebebi veg <egnint tedto
seotvran (mteellenqe) eff sot tans beetys ydeten ef 31°
bteo off ,bebiverq steted es .yeeqrod edd to Wared nt berebyet
enrofi-eno 163 foe eensw yiameteuo ont eviteder of et tevitb
sfidd a5 at net .f% .of wotaU [sod Kapbigpehewsnney ve eteviah
eoheren 20 eanod ont nag -visteon efdevag vleow ‘104 eet eared
sou
9c sation Ma vari strom gto od us boe cTnEqRoe arid ve toe ed ot
4 f Abele tr i At
orf ida Bosse Ors tant eae ants peorge nec a ea deca
bot kaahersee ets tigou ynaqmod orfd vd ben! ater ed trade ‘uevaee
bree of nicayer: bo oub enoved I Tacte i pepe ti \ JoptaOo ‘eine oe
Pe ONE a MEAT aN 2 goviab
betcton ber ,toardaco bi ee rebay tow cay eel Legg On ae
“eanetfeqaa oc bheq Baw er ‘sow Hotelw 703 Vel inw é ‘dsorte 6 10%
ene
vor ‘nina! feaqe Roeate ates a “ager. Uivh o ak “rod wordt
bier edaeftenga “Beer t38E fovaX fitou “oteneats beu at ane ee
as Vise eeae
tel omet o4 gts bexebrer noolwie: pet 108 Hee ithe eet oo!
¢ het) : a : AT i pectin aso
esuan tb B vised sort ot os 2oret ‘tose pers “e .eSer
STORIE si rb Oe Wi Metre 9 meeyrery
pao ois ot 6 saver teaae ‘bas pel reais aeewsed neetss ant
|
i ety Ee eT ee
of their account, appellee ceased working for appellants, and
thereafter this suit was instituted by appellee-
One of the questions in dispute between said parties
is as to whether appellee's right of recovery was limited to
$35 per week until said scale was increased to ®38 per week,
and then to $38 per week for the remainder of the time he was
in the employ of appellants, as claimed by apnellants: or
whether appellee, under the terms of said contract, was entit-
led to recover for overtime and for double pay for work on
Sundays, in ~eeping with the provisions of the scale Pixed bv
said Local Union No. @l.
Article 6 of the amtpact=e=se sereement entered into
between the PReES Ray Lome) Uriel borkwod of Teamsters, Chauffeura,
Stablemen and Helpers of America, Local No. @1, and apnellante,
who signed to be governed thereby, provides:
"All teamsters, chauffeurs and helpers shall be paid
from the time they leave the barn until they come back. Nine
hours per day, starting time 7 A. M. till 12 o'clock noon; 1
o'clock till 5 o'clock. Suo-h ie day on Saturdays, 7 A. M.
till 12 noon. All time over nine hours per day and five hours
on Saturday shall receive time and 2 half at the rate of @5
and 70 cents per hour, which rate the man is receiving."
Article % provides that "it shall not be compulsory
for employees to work on holidays or Sundays. If so doing,
shall receive double time, except when holidavs immediately -
precedes or imtediately follows a Sunday, in which events ice
and milk wagon drivers shall work on Sunday at the resular
scale of wages.”
Appellee testified, and it is not disputed, that he
worked every Sunday during the time he was in the employment
of appellants. While he Could not definitely state the number
of hours he put in each week, he testified that there never
was a week in which he did not put in at least 84 hours:
bos, atralfer¢s 105 aotvaow benseo, Peri adan a tono9 98 ‘Medd Jo
-eelleqas yd botuttieot, paw, tive eins rod tsoredt
4 iy
petinsd bie ceswied etumeth mi esotseeup eft to. an0 | Ps
ot betint!, saw yrevooe7 Io tein tet a ‘eel leags beter tags of Be 2 ot
_«3eow ter 8F* oF borsetoni sew olsoe bias Litou teem seq S24
Baw of omit edt %o vebalamey eit sot, teow req 68? ot oeds bas
_, %o se¢os!leqas yd bemtalo ar vesoeliogge Yo yolame oft at
-titoe paw ,.tosntinoo bles to smvet edt tebmu veel leqge redited
_, fo, Ntow 20% veq efduob to%, bes emitrevo 102 tsvooe of bel
vd bextS, efsor. ett Yo eno talvorg edd ridiw. aatqeox al, «ayabous
i Mee : Sa ‘ fh 0%, noial, £8900], Sia
oft bevetes, tremeetas Serarahdna eit 70, 8 efotsaa
wetvet teat catatemneT Yo papier tors, Lanotseatesal ods seowted
Nee AS ae
catcatfegas bys .I® .of [soo . eee Io ateq! eH bos nomet dese
ieobtvorg svesrorty, bentevos, ad ot Formate, one
bier ed [fare ereqiedt hoe emwettwado ,otesemeet If A" het
Sor. toad emos vent I tite fimad edt evsel, yoda eats eft mort
f noon Aoofa' © ef fits) .u +A v emit gottiacse Ly8b teq. eqwod
-M AT .syehrusse oo yeb BM ai-oa0 Meets" 8 ILEs, Hoel oto
atuvot evi? bor yah, r9q, esos enta seve outs ILA .soog Sf 1fts
49 0 estat eft gs tet s bos emit svtoecvet [fede yabwsse co
" Seaotvteoes et oem ont etex fotdw actus xed sgteo 2 See
vsonfugqman ed ‘toa (fate ¢6" tedd, aebieore | sf elotsiA dea
2n0tob oe 31. -eveboue 0 eveblil od a0. ow of ‘canine 102
_wfetatbemnt evebt for ecw Josoxe .emtd efdwob evtovex Iferte
aot atreve doinw ot .vabrue # swolfo? wiedatbiepih aa casts I
ALUN eT eat 18 vebous oO. Aer, [fede eteviTb fog ew ai tm bors
: r PRPBRM to ef noe
_ trenrofgme ont we ese ef. ents ent arene Nebepe, atta
_xodinut ot etste yfesiotteb ton bi yoo ont elise sedualfeags
teved oreris sats betitired ed, teen, dose aE dug, oct estuort, "
“BLOT 88 dnref ds ae tas too, bib on (Aoldw ot Heew 8 8.
emt tart _ Casein tom ef 3f bas | sberttaper seins ‘i
li
-
-— 2. ~~.
5
i
Appellants do not undertaze to dispute by the facte
in the Case the time claimed to have been nut in by arnellee,
but undertake to show that other drivers who had the route
which appellee had, did the work in seven or ei¢ht hours per
day. This evidence was objected to, but was heard by the ref+
eree subject to objection. Appellants further contended that
appellee did not put in all of his time while out on the route,
delivering milk, but that he was using some of the time for
his personal business.
This latter contention we do not think is sustained
by the evidence in the case. We are of the opinion and hold
that, under the contract entered into between appellants and
appellee, appellants were to pay according to the acale of
wages fixed by said Local Union No. Fl, and that the trial
court was correct in so holding» Appellants practically con-
cede that this would be true, but say that apnellee, without
objection, had from time to time settled with them at %35 or
$38 per week, without any Claim for pay for overtime or Sundays.
The evidence in the record tends to show that appellee did not
know, up until he ceased working for appellants, that he was
entitled to pay for the work done by him on Sundays. We do not
understand that appellee would be barred of his rirht to recov-
er according to the terms of his Contract, even though its
provisions proved to be more beneficial to him than he had at
first anticipated.
Counsel for appellants in his argument sava: “Tt is
true that the agreement or understanding with the union and the
employer was that milk drivers were to receive some extra com-
pensation for work performed on Sundavs, excent where a holiday” ©
immediately preceded or followed such Sundav. Appellants,
having signed this agreement, knew of it. Appellee, a member
of the Local 61, was bound to xnow of the conditions, and it is
apparent from the evidence and from all the facts and circum-
etos? eft vd etugeth of e‘sitebay Jon et hi amabeci
F
eel featos vd of foe. need evel of bemtsfo ont’ os osao mie ef
‘ts f
era Tees a
etuonw ads bad Om. gzovinh rsito Sati? wore of etestebou ted
NOR anwad fig isso MOVER at Ua9w ont pib vbact elt onae doidtw
‘eter, ott iad husod epw dud ,.ot betoet do pew covehtve ‘eta “Nyab
tead3 poipend tos vent? edrelleqga wozsest do of soot due eore
.otiion. psy, oH of tdw entd pic 10 Lid ot su ton ‘BID eetteags
70% emit oft 49. emoe antes 6 ow oi dads ue cat tm naitev if eb
| . -eaontend Tetowreq afd
id a et Yetdt gon ob ew noLinesaoe nedsel ener aye
‘blot brs notetqe att Io ors of +9880 eit ab “souebtve ett ed
bE EAR Le ehh
. bre atnatfecga npewted .otnt. beredes sowrin0o etd Tebow dads
Pes | olson ent ot Bai brooor vEq vs ete¥ osaatteags selieqqs
GEROSE) SST Bo ee arate ee Pee
rate ont teat bee Lin sok rola [Hoo] bias yd boxtt BeRZew
peep Baek eed 2
-noo vifsotiosno sigsfleqqa -an blot oe ot s2en700 ‘baw slide
iy
suods be »sellores. Sait vee sud ound ed bluo® ons ‘poahs etiee
40 aah ja medt ditw beltstes entt of onts nor? bad solsdsetdo
Py bors 20. emitrevo. oF . yea. TO? gialo Aisa tuottiw oom “eK ere
ton BIB sel fogae tadt yore, of ebred trove ons o£ ‘oonestve eat
psy. od. tect ,etmelfogqe 07 aot aro beeseo, ori risa qu Woo
Form oh, oF, (aBY BBOUE,. ro atc yd esiod TOW, end 102 yea of belt) dee
-vooet ot eands pti, 19. Seinxed oo bluow esl i sqqe atts pieathetloalah
tt dauodt, nove, .toente09 eid 40 ented ods of “poténcees -e
“theseqtorsas tavt?
f i . ’ REY aaah Pita mala Oye
Ee ® f EP YER, doramumsne etd at pioatteqge 703 Teenod ae
(Mili CRIES OME ne
ent .b98.notay edt dite an! boatserebous ise Joomeonas eds tect out
1G) Oise ie yee ae hey &
ts path, ad. oars mid ot Ay le a9 ed etom ed ot povong eno feiverq
lad ee ph
~moo BTIxS aren ev ieier ot etew et eae atte tend Baw xevolque
RE A hon Se 5
vabh fect 8 lesen Jasons bysbque 9 boro 160 drow 10 mo ftseceq
thet. OEY more fi
ae ~adnellegca. + yeboue ove benol fo3 70 rch i Lahore
aedmom.6.cosilegga .t?, 39, meoy .soremoerne ‘eidd eng te gat
EO oc PaaS 1 PARE ip fe
aa tt bog. .agotai bao, ett 40 wort, of “bowed alia isood efit Yo
Bete Sok. EES ams « eetareaied | Sa
-muogto. Bre. Pgont od A Le, mont bow eonentve ‘aft mor? Sneieg¢e
ie AA NE ESR AN Fa eit om all
stances in this case that during the long time of employment
neither party, at any time, contemplated vaving or receiving
any Compensation for overtime. Notwithstanding the fact that
appellee belonged to the union and was in a position to have
demanded pay for extra or overtine for Sunday work, yet he
never at any time made complaint or asked or expected any
other pay except the weekly pay of *35 and 838 per week,
pospootively<*
Counsel for appellanta is in the position of prace
tically admitting that the contract provides for payment Por
Sunday work, but becauss of the fact that appellee had not
demanded such sxtra pay up to that time, eskakm that he is not
entitled to recover therefor. We are of the opinion and hold
that this position is not well taken.
Appellants insisted that avnpellee was indebted to
them in the sum of $294.45, as shown by the books kept from
statements rendered by appellee, which eredit the court al-
lowed appellants in full. The court then found that annellee
worked on all Sundays from August lst, 1922, to June Isat,
1923, making forty-three Sundays, which at double time amounted
to $243.81; that from June lsat, 192%, to March 12th, 1984, he
worked forty-one Sundays, which at double time came to 4254.1,
maxing a total for work on Sundays of 3498.42, and that apnel-
lee had worked for appellantsthree weeks for which he had not
been paid, at $38 per week, coming to $114.90, and that there
was *30.00 retained from the first moneys earned by apnellee,
making a total, with the amounts owing for Sunday work, of
$642.42, and that, crediting appellante with the *298.45,
a balance remained owing to appellee of %345.77, for which
judgment was rendered.
Appellants do not undertake to show from the evidence
in the record that the finding of the court as to the amount of
Saba suws %0 evid nool eft ant sub send evap afd at eeonage
“entv tooo 1o palved betafqmedago ,omit yas te py diag tedster
+ art t ton att ncibostaitivioi -enidnevo 10% dofiseneguo® yas
sed nd wottisor 8 of saw baa: cofnu oft oft bernoled eelleqqs
ed fey pee zvebora tT exmiirevo TO Siixe tot vsq bebnemeb
yas betosaxe to bavae vo Intelqnoo ebsm omit yas $8 “oven
. Yoaw asin BEM bas Be? to ved yiveew ent tqeoxe yaq tedto
| ". yLovitoeqe en
-oang Yo aottteod edt of et ataelleags to? fesavod
aot doomvad "0? eebivorg tserinoo ent teats antitinbs yilsert
too bert sefleacqs sadd toad oft Io eeuaoed Jud . grow yshave
paca ot! jad saateedae wei tects of qu yeq sitxe dome bebosieb
blot bor nolntao ort to ete oF .rotetedd tevoses of heli ting
| -sexet [few ton ef motsitnog aint dads
od betdebst Pew eefleqqe terdt boty tras, eimel leggy cowry oy iuyy
mo? t¢e% axlood ets yd swode ef ,ah.808$ to mus edd at mend,
-fR too ett ti bers cote ,cellsqqce yd bershoet etconesate:
: peed Make tetd bayot neds tases ant, -{Ig7 of ejasifeqge bewol,
Sof equ os «88 ef ,tef geugué mort aveboue [fs so bextow,
beinuome ents ofduob ts eto tdiw .2vaboys ee th t~yirot. gotten ,&SP!,
ef , Baer Br fore ot ,280f . tel soul mort tads. 715.888 of.
“ta. past ot omeo emits efduob ts Mofiw , ay shore eso-ysi1072, bestow,
-fetes tasd bos (SB. 80D "9 eye&bous go stow 709 Latot 8 aotvam,
ton Sad ed dotdiw tot s¥voew souls ataslleqgs tot betsow bat eel.
stedd fads bos ,00-.S1# of gotmoo ,xeow seq 88% Je .bisq need
coef leaqa vd beoise avenom JetiT eft mort benister 00.088 esw.
to tron vRHAWE Tot aoiwo atovome eft CItw,.Latod 8 gotten,
AR. APSE ent ative etoxifeqgs antttbero .tedt bos e She SPE.
“ Tot <TC.ABEF Go solfeqqe ot antwo bontamey eonelbd. a
| | : i | _ besebret 8sw_ soemg but...
sonab rye edt won woh ot Stas Tebos Jon ass ednellega a. ane Se
to IoVvows ont of 38 hates and 30. no ibeats | eds. sadt biovet nen
|
Me pert
sane put in by appellee on Suniays was incorrect. Neither do
they undertake to show that the finding of the court is not
correct; provided the same is based on the scale of wages fixed
by said Local Union No- #1. That being true, we see no occaa-
ion for disturbing the finding of the court as to the amount
due -
Counsel for appellee insists further that arnellee
is entitled to recover from appellants for having consummated
the purchase for appellants of a milk route from a competitive
company, and for which he insists appellants gave him to under-
stand he would be paid. The trial court did not allow anrellee |
anything on this claim, and as appellee did not assien cross
errors on the record, he is not in a position to urre -aid
claim here.
For the reasons above set forth, the judgment of the
trial court will be affirmed.
Judgment affirmed-
65 ortd Pom. sdoert0008 BaK
¥ ‘
ah arin
‘evEteagamp>: co Ly ee epuet at & ii, esner toga.
dl f 2
appellete Court \ 7 ! Agenda Now Be
Fourth District re Se tlie Oe Sea
October Term, Aw De. 1926. ~
DAA T IN 6)
ple of the state of )} a oe Ws
s upon the Relation )
» Hall, ) APPEAL FROM THE CIRCUIT COURT
Appellant ) of ae
WHITE COUNT¥<~" ,
se oe
Sater ty.
| Owes » iE
> Appellee. ) Fp So (2)
ee ee
OPINION BY HIGBEE, J. agoruy \,
Yoon Var.
Mey TAG
* sg
This is an section of quo warranto to question the ri ght of
o, George Sweeazey to the office of alderman from the third ward of
ity of Ceymi. The information alleges that appellee in April, 19:5
@uly elected an alderman from the third ward of Carmi and on the Llirst
ay of Mey of that year assumed the duties of that oijiice, and hes
thet tims continued to act as such alderman; that before the tirst
July, 1925 he moved from said ward and has since resided in the
ia ware of that city, end therefore, was not legally entitled to hold
‘office of alderman of the third ward. fo the information appellee
: ‘Plea of justification admitting his election as slderman and
g that at the time of his election he resided in the third ward, and
tinued to reside therein. fhe plea further alleges that prior to
ection, ne was and rian then hss been emphoyed ag e@ superintendent @
sto rage plant located in the third wardy that his duties as such
rintendent required his presence about the plant in the third ward the
part of gach working day of the week, and sometimes on sunday and
Ing the night; that he resided in a dwelling near the plant which he is
' ‘and etill continues to lease from his employer; that about Juliy,19<5,
et a portion of this residence but retained a part for his own use;
8 wife and daughter, in order that his daughter might be more con-
er 1y located to attend school moved temporarily into the second ward,
t he continued to reside in the former dwelling in the third Ward.
| Upon ® trial before a jury a verdict was returned finding appellee
Lt a “Motion for a new trial was overruled and this applet pertect-
ree witnesses testified in behalf of appellant. {usces witnesses
ia i 6s¢
+t 20H gh wg, : ( #1u00 etalieqgA |
Pena ' J he toluteid diwoG =
; Di : »oeer ol oA or are stu Sui od
¢> S o, Pi Ps nn > ; ieee
£99 AI LS :
A900 BEUDETO a MORE TAStia
We nen aba
Pa) ty edt no iseoup oF. otnerxam emp: to notion a9, a
to brew be bib aiid govt matte bts te eottite ott of Yensont
ase Leaah ah ooLieqas ada sogelia sot ten oak ost |
fast ot AP hoe ‘byt00 ke Wea brkit ode seat adnies :
Satie qe no ltare otal ext of tae ener ont te ne
bne camepla es no NoeLe aid putts dbo, Bel fool tise ;
bac ,bisw bridt eat nk Sebleur ed Rolteese ots to ihe odd
ot xot tq davon’ eege Lie add art selq edit
of in substance that they had frequently seen appellee going to
rom the dwelling in the second ward where his wife and daughter
some testifying that they had been entertained in thet hom of
8, and that appellee was theree One witness, a grocer, testi-
hat he had delivered groceries purchased by appellant, to the dwell-
the second ward, and had seen appellee there when making such
ries.
Appellee in his own behalf testitied thst while his wife and
fer had moved out of the third ward, he had retained his residence
t ward; that he retained a room for himself and kept some clothing
ading there; that a portion of the time spent his nights and pre-
A
fake’ of his own meals there. In this statement he was to some
“corroborated by the man and his wife to whom he had leased 4
of his dwelling. Other witnesses were permitted to testify in
1f of appellee to stateents he had ude to the efivct that he was
oving out of the third ward,, but elation ing ,his tee phere,
on was ‘made to the hates £ this, aS EEAMEA on the grounds
: elf-serving and inconsistent with ps s eats:
— the question of residence the law of this state is, as laid
in the ‘ease of ae ve Shumway 222 Ill. 54, that the intention of a
oe though not necessarily conclusive. To the same effect is
: a liershall 80 Ill. 74. In Wallace ve Lodge 5 Illes Appe 507 it
1d in ettaobment case, involving the residence of the defendant in
. that declarationSmade by the defendant as to his intentions at
when he left this state concerning his return were competent, and
course of the opinion the following lenguage is used?
eenleaf, in his work on Evidence Vol. 1, Sec. 108, lays down the
hat the declarations of a party made at the time of a change of
ce or jinietie, or upon a journey, or where he leaves his home, or
‘thither, or remains abroad, or secretes himself, or, in fine, does
her act material to be understood, such declarations, meade ‘at the
the transaction, and expressive of its character, motive or object, '
ont 3 okt yatta
: “ong bus — ie Aloe fing
= aid gatos to caoqang ott xot sist be wa
a “feet te” “euiae ‘oad of:
a. aod ati. eovael ont pert ee
B00) emt at £20 Cann aotere
rded as verbal acts indicating « present purpose and intention,
therefore admitted in proof, like any other material facts".
We conelude, in ceepadenes with these authorities it was not
aamit the statements made by appellee,jin relation to his residence.
Complaint is made of the trial court's action in giving and re-
instructions. It is urged that the court erred in refusing to
6 relator's instructions 5 end 6.
Instruction 5 reads as follows: "The court instruets the jury
plece of residence ss used in these instructions means the place
¢ the defendant as hesd of a household maintains his establishment and
the ordinary business of keeping and maintaining a home", and
ion 6 reads "the court instructs the jury that the term ‘residence!
in the lew regcuiring an alderman to reside in the ward from which
lected means actually bodily residing and living in said wsrd, and
mere intention of holding some place as his residence other than
@ where he is bodily present and where he maintains his household".
th stated abstract propositions of law and might readily have been
ding when applied by the jury to the tacts in this case. We are
aetnton that it was not error to refuse then.
Senpiaine is also made that the court erred in giving appeliee's
etions 8, 9, 11, 12, 15, 16 and 17. Instructions 8, 9, 11, 16 and
said to single out portions of the evidence to the exclusion of
avidence. hese instructions stated to the jury that certain iacts
din each one if established by the evidence might be taxen into
ration by the jury, in determining the residence of appeliec.
tepether commences they are not to ne See giving of these instruc-
Our opinion does not constitute reversible error in this case.
Instructions 12 and 15 wevinad the jury that if it believed from
idence defendant resided in the third ward end his wife and child in
ond ward, yet defendsnt would have the right to visit his family in
2nd ward without losing his residence in the third ward. ‘hese
ons correctly stated 2 rule of law applicable to the facts in this
Peas es’ ae eee a A Oe Oo eens ek Oe be RALSS
sor inemat bass. eaoging Juesetq. s. sibel <etee Ladzev. AB: ibebtager:
s"adost Laliotea ioddo. qna.edll ,tootq at bets tube: exoteteds ote:
tom gow tf eottixvodine eaedt dttw gnunhepons mt, ebmLesoose® genio:
soosebtect aid et motdalet at,eelleqis 44. eben etnemetade oat timhs ot x
~ot ‘bos satvig.a2 goltoe s'tiwee Lalit edt, to: shen: ab tnts£qne02. ate)
OF piiuien RE bexrrs Sas0o eft tadi-begyy et gi.:: weno ktouatenh ga.
ey eee 8 bas & euoitousient e'teteser: edt
Cw sdt atesrsant txi08 adf" tewollot es absés &.noiteustenk + oat
esalg edd 9ité via emottouigeat eaedt mi bees Bs-eotebizet to esada- enti
bis foomd ba idatce- aid sai stiti ast blodeexod e to saat ea teabae'ted edt 2
bite ,"emod s yiinisiatan bae satpeed to saeutend etensbte odd etosl
teakehtnes* atot oft dsdt yset edd etourtent wus op, edd" shape & molsown:
oldw #ort bisw ett al edleez. of, Aamtshla fe... anbttspey wal edt at feat
bee” brew bise.ok gaivil bos gatoisex ylthod ylianios akaon beteete. esi
fad tedeo: vouehlows aia. 28 spare, opO8, am fhLost to. Aoltaotet orem edt,
‘F*btoidenren: ara eniagatan. ad. by Side. bile’ Sadewrq: Ritaed ek omen seca
avec eval MbLa0x, tdain ove wal to enotdéieoqorg, toanteds: neds.
Ste OW << .9éa0° Bids al etost edd. oF, waa edit. yd. ‘battens: medi’ aut bo
| ; sued! eautox ot torte tom mew tL todd. motatao. oxi
i ebetea di Siivigg ob bette, tiwop edt: dedd. ebam: oeieel- Pai ekamed » bt
bas af ,£f ,U ,8 enoltourteal, 8 f one-0f. \8L,,8Li4 fine +8. sao2toss:
te molsufoxe oft Ot sonebdive vit. te enottxrog.dgo o.(gnte,cH<b fipa, ond
etoci oietreuo tad? yrs) edd of, betsta anoltourte ti: esed? «> Foonebd v9.m
ogat meacsy od tdyta voneblive. edd. yd. bedsifdatee. ti» site. dose i benos
svolleqgs p gonebleys aes aul ataxedeb nt. .ytst. eit, yd -aef Bt 0
~ouaramt eaed] to gmiviy Coca od rs ton ors yedt ohanace cecienetie 0
,esao: atd? at Torre oe ig eiutitanoo tom agob goinkgo, eaten
aicxt bevetied tt tt stadt yrsl eds bostybs, @L pow .3f amottowsteah. ..
ait Stine bas ottw eid bas brew buidd edt gt bebiaes. Jasbuo2od sousbive
af yfinesi std tiety of saat edt ovyad bivow tusbaeteb | toy brew, bagoee
_ seo bie bubs eds ot eonebiao ; eld Rateol trodd tw. baw none
aldy of stost odf of oidsotiqys wel to. eat & betete itoess09 eiottas:
gah 16 WEP aay POR: bi one te
wcll
AppeLient refers to and depends largely on the case of People v.
flihorn 100 Ill. app. 57} as sustsining the claim that the facts here
*
boule be held to show that appellee had changed his residence to another
rd after his election.
In that case Ballhorn who had been elected Alderman for a certain
ected to represent. Upon the facts in that case this Court held that
llhorn had changed his residence. It was there shown however that
1 lhorn had not only moved his family from tie ward he was elected to
resent and rented his home to other parties but was also engaged in
bus ine ss in enother warde
7 Here appellee has continued in business in the ward from which
) [ons ai which requires his presence there ten or eleven hours &
‘but also reteins 2 room in the house where he lived when elected, which
| occupies part of the time end cleims ss his residence. Therefore the
lei ng of the Court on the facts in the Ballhorn esse can have no material
aring upon the eonelusion to be reached upon the facts in this case.
This case presented to a large extent a guestion of fact for the
arye There was no reversible error in the instructions end the verdict
ould not be disturbed unless it was pene) see the weight of the
idence which condition is not shown ~ A Whe Fecar de
ay No sufficient reason appears for reversing this judgment and it
ae affirmed.
ig. AR IRMED.
Wt ly be.
YY
*¥ eigoei to eeeo edt mo Ylearel ebaeqeb bar oF axeter doe: hele
exed atoat edd tad? aisle édt gatniste me: ea {4 sqqa -L£T 00L 4
, tedvOne of eonsbisex sid boptads) bad. eeileqds Jad? > wota ot bie od ei
; . “) sortoete’ eth vote i
Miséies a tol aaatebla betesle seed bat onw avedifal seso sadtoats © ae |
: oiew gedtons ofch ebiswredte yitrode bevom epineV’ to <e17” add at i
aaw od Baow odd of minter of saw mettnetpt bextt) ata. date" hop! Eli 1
vant Bhed tusrcS efdt seso tadt at atost vent oqu.. >, tnesetqet: ee /
gals tevewed awode oredt-eaw 3 T: . e@OHvbteet alt ‘bognado bed a
cy Heioele saw od biew eit moth elimat etd pevom yino som bad a
Ri begesne cele eeu ted aelttag ved to od° eed ‘aid botnet bits * the
brew téddoms Bt age
oldw gest 6rew eft ect eseatend mb bonatinge aad: eelleqca exroh” ages
S eised soveie to sed exedd soneeurq ald estisper totaw (be ;
diotdw, ,betoelo nedw devil ef osaiw easod oft mt meets enteter ete oh i}
eis eroteted?. .- .vomebidger eid sa emtalo Baa emake oat woittag aetatoom
-feftstan on evad ase esso axedfiiai oft at steat edt a0! fas00 ods to au
e@eeo eldd af etoat eid-acasr> bedeads: od od Ne teslonca 8st on mies
ony 20k dosti 6 meideenp 3 taetee ogral a of Sedmeastg ees: ehitsc bi cal
toltbrev efit haa enoltouxseni edt of sore 6fdiaxvevses on eaw Seed? © nn
edt to tdatew edt dee Uiteotinss eav tt eeelas hedteteto’ sd ton |
ab moss a os s#ode ton at moitiggos dotte ve:
ti des foergbyt eidd gnteveyer sot Stseqy a Aosaey jneloi Thase® ‘oft !
yg here. £ tts is
BHT Sia
Porn a HEN pala Seether eg REND
No. 19. Agenda Woe 20-5
Appellate Court, ae yy
Fourth District, LR GR AG
f S ? we Sel as
Bee
October Term, A. De 1926 jf |
4 Johnson,
Appellee Fa
Appeal trom Gity Court
)
)
)
‘ada ) ey
| rans a
h Feraud and August ieraud, ! . fe She
business under the tirm nae Granite ithe S ge
tyle of Feraud Brothers, ) “log ¥ ,
Appellants. ) eeu f 7 OS
af
oS g
OPINION BY HIGBES, J. Sn e.
on
Bdward Johnson, appellee, brought suit in assumpsit aha
eph Feraud and August Feraud, partners, doing business under the name
‘raud Brothers, appellants, in assumpsit to recover eommission for
Dalleges sale of real estate belonging to them. ? The declaration as
ed consisted of the common counts and claimed 4925.00 to be due
ellec. Upon motion of appellants, appellee filed a bill of particu-
Is averring en sccowmt stated between himself and savpeldants in the
ter part of August, 1925 for ¥9c5.00. fhe case was heard by the court,
hout a jury and judgment rendered for appellee in the sum of 4 9452006
,elllee in his examination in chief was assed if he ever had any business
nsaction with appellants and upon snswering in the aliirmative was asxed
t the nature of that business wes. To this question he answered "sale
@ piece of real estate". He then testified that later he had a con-
gation with one of the appellants. Be—tit-net—deteti-thet-conversem
+ one ofthe arppetients. He did not detzil that conversation but
ted "we agreed that there was $1000 due me as commission on the sale".
a that an agreement had been aa ekn as fhe court ruled that the witness
1d go into further detail in the matter end the examination Erénestes
follows:
- ° E
° Well, state whet was it... as nesr as you can?
. I seid to him, You will have to the first of September, the third
oe
Sk gt aie FBP ee ;
F - Trek ae Par = a - , ie ggt
% , RES 7 * : ee “ ser
= « a, 8 ce ene
se 20H shiera
1 TEHOD etal tequs ae
ae . ee
P. iar Jolstoni A¢apot
{ osu uk as are! 1 eM c#00
ER ad rf w Pana :
ee See as eS @ 3
< £ q < a3 ae Sa Me (ee
bi0* aoe aees fasdia Gas winded hes ae meee ie
a SN, ; ae : A ary se Big EOS tte em BY e
im ox ee ali fi kas Wet Maes = eae pe
woe ste t .buated deuaah Beto » bate |
{
{
: es 2880TH. xa worse i
$ ut ia fest
eat ans” ods “gdb .ay ‘eduntaud antos éteatrag bueret ‘#siqnackon
Tor ROkaatomos tevooe?r os” srequuees at ,stuslleqta yeredtoHe ie
$2 Rot Fatetesb “ont <<? deat foe: qitsneted ‘edetae. isenoto Stee? ‘begets
eh “ed OF OO JSS" } SutiaLoiine estapoo momeo: okt 40 bode ek
A eH62TtAI Xe LLid <e Setht* Seklerda ‘yetasftoags. £0) ‘dons odsanelk:
“ody mb ethegtoays om’ €ivantd ‘noowted ‘betede” tan doomone BAF revi
esinst edt ¢ breed’ 3 daw sado ed? $O0s88e 8: Se aaer + tae aes
elas" bexevens od ao Ba ou> ae of ies ‘seen! and pis ie rr.
hues 2 Gad) ont retat taeda: aerniaios ned” ote cs / sterossie tani 3 to a
oe
*
ed ) Lioda vetieqad’ Pike bode testi ons gnosis arse ca be
~S L9a00 ° SS ed sta elamia. fon “Qa eaw ‘Hol taetevaoo ‘oa ‘tad
eaealiv edt edt beLan” ‘fuwoo edt : sbodoaee ‘toed ‘bad th ‘tie
metacanse Holjaningxe edt 5n8 re A odd aut Ltages redeaut 12 ott
: aa
—
‘on this contract end that will....
On whet contract?
_ 4 On this sale.
Bas Alright. Go ahead.
ie And taking ten per cent of the amount of the first payment, if
consider the sele was one hundred dollars in cash, two hundred dollars
‘the 16th of August and two hundred dollars on the first of September,
a five hundred dollars in ea note, that would be ten per gent of the
mount cue, if we consider that the first payne
= Well, go shead and teil the conversation there?
Eb Well, that was the statement, that was the conversation between.
L and that I thought I should ve entitled to at least ten per cent ot
“eomuiesion.
an. and did you talk about what the amount of the commission was,
e entire amount?
es Ae I couldn't state whether it was stated in terms other than thet.
5 one hundred dollars being ten per cent of it".
He also testified that he afterwards recuested payment of
pellants, and that he was paid v5.00 on account, and that on two other
asi ons he was paid {25.00 on account. He was again asked it there
- been any agreement as to the entire amount due him, and over objection
7... was permitted to answer that there was ab agreement and the
jount was $1000.00. This is in pubstanae all of appellee's testimony
nding to show an account stated. Qn 6ross examination the court
‘led that appellants could not cross-examine appellee es to the original
anusaction, that is the sale of real estate. This was on the gro nd
the eetion being upon the account stated the original transaction
ij not be inquires into. Upon the same ground appellants were
. The three checks of §25-00 each given appellee by appellants
e introduced in ovtdenees Sppellants testified that these were
; loans to appellee and the checks were © marked. Appellee
r testiiied sapt the word "loan" which appeared on the checks | in
=Be
2,
ee 1690 ee "else abit 0. . Al —
. “.Sseda oO ~ sighe ts ae
ose . TaemyRe Aerte:t oat to. dayogs . edt fo. THEO. Leg oot “gi iolesy ‘OA oe he #
etel feb: psvbowd od ,fase at sieilob oerband ato Bem. olga edt. rebtence
aS. “te. dtele - :
ott Ye. Fase TOG ated od bist ow pact ,ot0n s ae etetton bate baa ‘evit
‘eSaemyed detit edt tans steb temog. ow tf 29a sa
,isdvedqes to, gextk wt me etafiod berxbasit “owed: bas: te sf
‘Toredt soli sesre TAS ‘ait Lfet bate beesds..09 - ellew fhe |
tvew dod” “pdt ineievaeo “ott ean. tadt-, tnewetade att aa Sed, ALAM 3 why
to « hic ¢ ‘ced fede. taseL ta ot- aoitt tag. ed oLoode 4, Sdapodd & fatal baa
ra . [. S>ee a Late + J x Yi
(a eee beedo on
Seaw ‘Motentauos eas +o #agosie. edd tadw Su ode aad. 9%: pip, & ee
=k 4
Sor a: ¥
4 Boot va Ny
Sate ance TOATG- euttod fis betede- Bow: vt nodded, iste thm. ae Le
‘5 as ogt ie HOD ESz Bes Basen. 8 veLse. bexpaws ne
te simeory 0 beteci pet abrawsetia: od fads. boltivess Sele, of Barge a
xoitte oad ae gait one . aon D2: #0. OO 6845 Siag eow ent tadd. sales
_. oredt Et- boxes shoe Rew 0% 2: -dastonoe. 80 00,85) dfaq. sea f
notvooies <eVvo Sis eaik ond THEORA. etitas ony. oF. 8. See
ou 62 ont uot st adtwoxe acre ere : b peek Rabies i , s 2b
fanlgéxd eat of as- selleqis SRIGsxO~BBOES tom bin 90, poms wr i is
bit otR ond gO BOW, att... .atates Leer te. oiaa’ pid ek. ede, Fy "9 2858
faoltosatier? Lantyito ont betata. tngooos, ont “mogs a rr edt t
“prev etasileggs. bE OLB - suse edt nog. . aaak. nana a LSD,
ei Rs E ae. a * ne RE Hr MD Ble os.) feb ty a re
‘ r : ‘ 4 oS PR OF Se Ee eS + ae
orew veod? gaat bel tbdees perey ass dO
eotloqqs bested: ‘ otew exioedo oat bee sottenas: ot a + eee
at exoede edd mo beteeqqa fotdw "as0k" nage. edz | feat mentee) rere
=e
13
eee Te
ree
i
idence was not there when’ they were given to him, nor when he cashed
Hh It ig insisted by appellants thet even though this is an action
pon an account stated they should have been permitted to cross examine
ppellee concerning the original transaction, and should also have been
eetteee to testify in their own behsif as to the game;}Sald to deny
nat they had ever employed appellee to sell the real estate in question,
r that he had anything to do with the selling of it.
It does appear in the evidence that appellee did not know the
arty to whom the real estate in question wes gold, and had never even
eon hime In our opinion it is unnecessary for us to pass upon the
yuestion as to whether,es this was am setion upon an account stateg,it
as or was not proper for appellants to introduce aveeenee as to the
Fig inal transaction upon which the account stated was based for the
ason ‘that when appellee was asked the question if he had had any bugi-
less t¥ansaction with appellants and replied that he had, and thet it was
soncerning the sale of the resl estate, the question of the criginsl
transaction was opened up and appellants had the right to cross examine
him upon thet question, and also to introduce evidence in their own behalt
ix connection therewith. It was therefore error to deny appellants the
testify themselves eoncerning
right to cross exauine appellee and to
ct that he sold the
appeiies's employment and to deny if such wes the fe
real estate in question.
Again it appears to us that the conversation testified to by
De onilee does not smount to san account stated under the rule laid down
5
a 1 Corpus Juris page 564. It was improper to permit him to testify
He should only have been permitted
the wher ange question whether
that an agreement had been reached.
‘to detail the conversation, leaving to
thet conversation amounted to an agreement ,emount due on an account
g stated, While the evidence that the checks were simply loans to appellee
te not entirely satisfactory, yet in view of the errors above referred to,
we are of the ae the judgment should be reversed and the cause
be remanded.
VERSED AND REMANDED.
Jultihee pratt
bedaso od medw vom ,wid of osvig srew gedt intent: etedt on eon
foltos 8 @f aidd desiodt nevedadd atnelleqas ‘Ud Wotatenk al’ ar
OHiMeke seors oF hottintes geod evad hisode yedd beteds - tavodos ie 1
Seut Oved ogle pinode ban Holsovan ant Lantaiye ed? gftt ar vonon oefte
quad OS lee a om: oxtt of ee ELadted avo yheds mi ¢titees oF betta
| lobteesy ub efsteu fae7 edd liege ot sefleaqs begolgne tere Waa fide
+32 to gubiiee edt itiw ob oF gai etehy! baw et eats
on? Word tom dt6-ealleqae test Sonebive edt #P rasqua eens a” Fe?”
Heve toven bad ons , bios say NOt teer Nf efetee [oer ott none ot ‘Ge
2ea¢ o¢ Bh xot Uxrseeeeenmy’ gi ti aokatqo wre ag!’
Fh, bedate tausosa as eqs gobtoe
edt xogn
O* ate a
Hs caw atdd es woddods of a9 motes
admellegqs rot xeqorg’ tom Bow ioe
Sid oF as Soushive soubersns of
+oteteo Leer ‘exe to ates ent Paes
Of tHaix off bad ataaltenqs ine qa beaeqe. esw’ ol Feet
SE sogeblve eorbortat. of “08 fa “bun! iokteens teat mogs a
edt asnelieqas ured of ‘YOrre exeletedt gow +7 sd tiwetede no} o0na08
Eointagnc0o gevivameds Ctitest ot tne eelleqes entisxe dora. a
SULISKS seoys
tiasied ve ghoeag
¥d of bok
tigeot moltserevace ent tedt ef o¢ widieas de ata.
Wop
bial, ales ett vehas betats. ftsoocs ms ad teetriis fon boob «
Btitecd of mtd timeay og reqorgmt eaw eI oi age: 63sq etcat :
bess Inted ised evad yLite Bfuoda off beioser asad bad taseor
tedvedy. xeiseerp ony _ dco ent of Retreat eal ct, bi :
deena i# 6 pub 7 fu onay, tHeMevserga ge Ot bottom Bes she
oifeaqge: ot sasol uate. orew ‘edoede ext: Sane eoneb tve bat ‘ertay oS a ete
o¢ botieter svoca exorze eat te wolv at sey oCt0tes tet dag stax! fi a
arao edt baa. Seexevert: od | 6 Loode drteng het a ‘otto o:
Sal Feet.
| POR,’ scabetuia lets we eek pene om <
URCHASAR Ghia .d@o mse.
i od We — &
Red \
Noe 2e. Agenda No. 41.
Me ny
Appellate Court, ee
October Term, 1926. bl Ma oe
Fourth District. 1 a, i a
Pha 9 : \ aot a:
Go Ca von
| of 8S
2).
e Durbin, } J. ee! OS
Appellee, } SAA
Appegt- from
VSe ) “sy
Circuit Court
ago and EBestern Illinois
ilway Company, a Corporation, of
- Appellant.
Eftinghame
Cu
STATEMENT OF THE case & 4
’ his is an action ef trespass oe oe aa brought by Irene burbin,
ppellee, against the Chicago & Zastern/Railway Company, appellant, a
ole personal injuries sustained as the result of a collision
be tween the train of appellant snd an automobile driven by appellee.
) | trial before a jury a verdiet for $4500.00 was retumed in favor of
ae after motion for new trial was overruled judgment was entered
n that verdict to review which this appeal has been periected. The
leration upon which the case was tried consisted of one originsl and
two additional counts. The second additional count charged both willful
nd wanton negligence on the part of appellee. At the close of appellee's
déence the court on motion of appellant instructed the jury to find
appellant not guilty as to the second additional count. fhe first count
of the declaration charged generally that appellant so carelessly and
ligently opersted its locomotive engine toward, to and across the high-
crossing therein mentioned that it collided with the said eutomobile
eaused the alleged injuries to appellee. The second count charged
lure on the part of appellant to ring the bell or blow the whistle on
said locomotive engine as required by the statute. fhe evidence shows
t the sccident in question occurred at a highway crossing near
Pp llant's station in the villege of Mocassin. fhe mainstreet or highway
Hoeassin known as Effingham street runs east and west and appellant's
k erosses it im a north and south direction. Appellant's station
-1-
\
& « e / ae te »
Ye
x sc
‘aed hig af my Pe UC ei tas ‘
»id sO abmoga | | diye cit pa ep
; : ‘: 3 “7 . ‘ | z m : | da . *
ee .trewed etatt aqqal o See Aer maige
eee me O26! wre? aedeted shires) ote
ons ear fees TOIT EM Rowe F Oe ee
Satie ee es mays
a, af & ~~ Ss gy ter ag See
Gey * 5 re ae Ry ; '
Set ES Oe “ gee a ae as
me ae bolleaga
w pean : :
ct hoe tea hgeee ae ~
ae divorty - we
@ Roxb til metes & boa.
Ne
to jaottexogz00 “a eheqnee:
eas fd wey pes ne .
sMadanktis rack teats |, ASS 5
er ees em etn a, Glen. COA ea site
) OR ED (6 Bie Be a AD HUP a0 aura
3 3 — me ae oa: ess ee
okevsd meth APs f axa venus ys 5 sesqeors oa MA 6
‘ 2a atontlIT : 20 mold # oa ma ad
at teal loage - yagi od Wow L toi \gretact ry ogne do edt tantags: 6
A aa 5 { fe) Re
m0 betLics, a to. fine ox ont 8s bemtatasre bebemat isaoere £0t tevoo
Prins a wae? dette
eee oe yd navies aLidoaesse fis Sate tsi toags ‘0 Alert edt seews
ai, OARS aR a aa
te. sovsi BE bo meicto1 32 00 o0aeg sot forbrer 2 weak id 0 tod fatst,
bexetag eau tueayant be Liryxeve eal Lain wou zot so t¥0m er pehrs =
“soit Papas. fae aaamaay em
on. sbotne tog Hie ac ead. foeaee a tale dette wolves a4 SoLozey Abese !
a oe Shey ES ty ee ee ro) ea? ET te cane
bata Lestaive exo ‘te batsrence belxd enw enzo. ‘edd do tdiw mogs sold: al
CORES pal UE eer gia. sinker
fe bitew dood bagrade . tas0 9 Aanotttoba baoove oat _ sadEmo8 fanot tt 2 0
ae x Pave ef asa ies oh TET aia
tupiloage to 680 Lp edt oh ssoitoags to pat oat no sagen staat aotisw new 6
eee eer ee ts ee
rs: of beat ont hesourdant jaslfeqas to notton Ro ¢2g00 ed? —
Pk tr Pate ged ta + BSS
tewoa gexbd ont (ARTOD: {anat #toba boson, ext ot ee YWitms ton nm ie
Ga gaa cae 2 asane arg :
“bas elaeelezpo 8 tnalLoqae todd pilereaos: bogredo, noktetaloeb ent
Ph ONS eee ey
“Maid ad. svor0s bas oa + bra0s, oniae ovitomooes eft beste eqo. yltoog tls
POG ea ene EY aa aie
el idoncdue bios. edt dtiw, pebiLics a todd ‘benot son oo ee
“ash feegs Gis y ree
bagiacto $150 9. bac0e8 edt _seelionqe od aotsotat Leth oe ‘besya:
a oe eae U% ee
no eftekde add wold to ‘Led ‘oat guts of $mal Loge to fs tae baa ex
RE ee = ‘eee ae ve? ge
swede penabive: e sotutate ont d spot se ontan omooaL
at w boat ven Pete
Se Ms ot east an ;
teen gutssone yewdg bet 2 ta bovzuvee, aes ssesp at eee ‘tes
perish 10 teortenton oat sstonsoa » ae hoes i oe . pis
ne
a
Belcweco oa
ese Be Rina
| about 200 feet north of the crossing snd west of the railroad track,
Zh does not curve until it reaches about three-fourths of a mile
th of the ‘erossing. Just north of the highway crossing a switch
rack leaves the main track, on the east side thereof and runs to the
jorth for probably more than a quarter of a mile, Appellee testified
. on the morning of April 26, 1924 she left the home of her friend
ie kyle in a Ford roadster belonging to Mrs. kyle's brother, a 1923
1 with the brakes in good order. Mrs. Kyle drove the automobile
1 the store of William H. Homani; was reached where they stopped to
zet some gasoline. This etore was on the south side of #ffingham
Street some 200 feet west of ESRB Groce, and was located upon the
south edge of the highway. About 24 feet * east of the store was e
‘about 10 feet high oe 16 or 20 fest wide east and west. Bast
ahis shed was the Heman'e dwelling which wes located sbout 20 feet
south of the highway and sbout 100 feet west of appellant's track. Hast
f the dwelling about 40 fect west of the track and 15 or © feet south of
e road was a trees 20 to 26 feet tall. About 10 feet east of the
welling was a small garage that stood back of the house. Bast of the
Slling and west of appellant's tracka were also some driven posts and
111 shrubbery. After getting the gasoline appellee herself drove the
Appellee further testified that after they left the oil staticn
he thought she heard a trein whistle to the north; that she looked to the
south and saw no train and she then looked to the north and saw a train
oming from the north; that at that time she was 45 or 50 feet west of the
ailroad track and was travelling about 8 or 10 miles an hour; that when
she was 4 or 5 feet west of appellant's track she saw the train coming
from the south; that she put on the emergency brake and also the foot
brake, bot Was wmable to stop before reaching the track, and the train
truck the automobile; that when she recovered consciousness she was on
‘$he ground, and was later removed to a hospitel at #{fingham; that her
‘limb was broken, and efter an ex-ray was taken an operation was performed
a her, and she remained in the hospitel three months, efter which she
was taxen to her home, and has not been able to use her limb since; that
«Be
a
,toaxt beoulkex edd to teow bas gakeaoto eft to dixom test 008 ‘node.
ofin s to aidtuot-oe ts 00 8 gedoset $2 ittos evans dons aeob fot
s
dotiwe s amteaoxo omnig te edd 2 déron tout .gnteoviswedt to. aaa
eit of saya bas to ovodld obits tens ond io lowst tam edt eevael os
bettivees oelfeaqca «- olla 8 to tettasp a ont erom eldod oe a0 its
ae ge Le 4
baoki! toi TO ood ous fie! are eSeL ,ag thea te gabertom eat a0 te
&ser s sodtord e olex Sea ot ssignoLed rotabact S10% a ak efca ote 7
nee Re «ase
olidomodsa oF evorb aly eeu sr0bT0 boos ae soderd ie dt,
ot poqaots contd oxeiw bedoser aoe fixamok oH makitey 3 to etota edt its
aadigat 228 te obte disoa ont io ean erote eit? vomtloneg amos t
oat soa hess OL eaw bats .Soor? ‘tnalegae, te sa0m toot os ‘entoe test
& Baw exots ont to tess . toot 268 tiroda vvomtyad edt fo. cate ate
- tail ;
toot teow pata , fase ebly tet os 10 aL ‘baa ghd foot ; %
R ene 5 lige SRS, Ree
teat O8 twoas bed aol aa8 dotdw gat ifenb @' nemot ext eaw bets etdg
ies ADE MAL? See
teat ‘vigent ‘e'taalteqrs to teow toot o£ tsode bas ‘yendatd’ ode zo hg
es + xa at 3 Ss
to dace ‘toot mR x0 Lf bas ‘dooxt vont? to teow ‘fost ob tuode gubllews ae
: PORN So oe ele ee
eds ie se20 geet on tu0dA List toot as oF 8 ‘eont a saw baor a
edt xo dass - soauod “edt $0 Sood boote fade ones Kiso 8 eaw ‘gate te
bas ateog sovixb 9 eat 08 o6Le ere exossy e' tnasieqas ‘jw deow baw 30
edt everh tiered seitouge antioeas edt ‘gnisten weit setoadonte a
ik 5 Liedah BGs *
wot até Eko oad tes outs retts tact ‘bolt seer reddzat oe ee :
exit of bedool eda sadt dixon edd og eitardy tex’ 2 Stead "ella: taguod 6
pF ee: pag? OS FRE a
aber a wee bao Agron odd of beaook noits ‘ods one atost of wae bao Ate
ee es eg ; phe
ads te Seow toot 08 to ap aew ada omté fade ‘te ‘tout adgron edt pk oa
SE Md 33
ned $ads ixood ‘Ae aoLia Of “0 6 teow ‘gabtiovort sew ‘baa deett
peta LRT e Aig psa
-_gatiteo nba’ odd wae aris doot? ve molroqas to ‘teow toot a m0 ma
if heehee: | Sage it
foot ais oats ‘bos edsrd od ‘ont fo tee ods. tadt ener: ‘edt -
Hi ey: i ae eer
Alot adi paw rdoass wri yaldiones roid qore ‘ot efteas eew tad ous
Sides hts Sale SU Meee OLB,
m0 BSH aria -aventenolsartoo berevooer ode ‘aodw tad ‘oxtéonotua add do.
: ae) AD kate ea ee oe ao Sen, Pree ee ek ‘oe
“ed tedt jmnacign 228 Qs Lat geod a “ot bevoue: zotal ‘ew ona .deuroxa @
Re Se Acar Bee Be SAR Rs i
“benso%x04 aaw He? 8 ax9q0 ize) nedet ean 1 UetHE® Re cadin ‘bas , fexord
he a a Maes it 3) er ses ELAS BAG. bet, ae Rigid i <
vita dot dw nofts eddnon peng f Lasteaod ott mt benteset fe a0
ie ES As i Ra aac eS Rae AR ae ag PARR ES. a word ;
“tadt peouts pert: ‘xo ean ‘ot elds seed ton ast. baa eno ‘ted ot oat
aR fen
Pt ’ Ph By a
Ay i }
he aia not remember mesking a written statement to appellant's clsim
“e won April 50, 1924, which was introduced in evidence as defendant's
nibit 2, but stated that the signature thereon appeared to be in her
hs ndwrit ing; that she did not hear any bell or whistle sounded on the
eS from the south. lirs. Kyle testified that after they left the
ng stetion and as theypassed the Homan dwelling she looked to the
and did not see any train; that she then looked to the north and
the train coming trom MA direction and continued to watch; that
about 5 or begat /aypeilant*s track she saw the train from the
uth and jumped from the automobile; that the train from the north was
the west track in front of the depot and about 200 feet north of the
wae
rc being when she ow it; that she did not hear any bell or whistle on
o rain from the south, and never heard the train from the north
listle. This witness was also shaw atiatenca statement identified as
ndant's exhibit 2. She admitted the signature, but denied the last
ortion of the statement. :
3 Jesse Doty, a witness in behalf of appellee testified that at the
se of the accident he and Walter sytert were unloading grevel from a
‘standing on appellant's switch track about 200 feet north of the sross-
and that when he first saw the automobile it was about 100 feet west
ppellant's track, and was running about 8 or 10 miles an hour; that he
the train coming from the south, but did not see the train from the
until efter he got down to the plece of the accident that it was only
& few minutes after the secident until he noticed the train; that he
x heard any bell or whistle warning on the train coming from the south;
: the train from the north was about a quarter of a mile away when he
t noticed it. fhe witness Walter L. Syfert testified he saw the auto-
lle leave the of1 station end noticed it before he did the train coming
1 the south which was something like a quarter of a mile from the cross-
when es first saw it; that the automobile was traveling from 5 to 15
8s an hour at the time it left the filling station; that no warning of
Kind was given by the train from the south; t. at he eal the train ae) the
north, and that it was pulling in on the switch w her train w
ming from the south, and that the train to the -nortir wes then-about.a-
he -3- s
oa
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-elfuepaoteb ea eonebive ak heosborin: exw dob Oe Lr (08 ‘fbx 04
ted mi os of beseeqga nootedt owt emg a odd tabs betare tad a oo
edt ao Bebiuuton aidetaw xe LLod oy ‘teed ton. Oth ede tedt: _ tp tage
eid JieL ysit tedte tadt beltiteas ef¢a arti née, as sot? a:
pit o¢ bexool. exe gaitlewb nemok ent. boeeadyert? eB baa fot tate Bat!
bas déwn edt. of botool madd oe tad atest wate eee tom 2b ba
tads sdodaw of bemmtises bas not toot % aozt auton ate
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asw Afton ent most atasd edt gady. ipPagegeerre eat work beqauy ha
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no eltctiw xo fied yna tse tom bib eis - tact it wee eae wedtir gitkat
see
at
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as belittineh! taenetata pengte ‘trot 08 Le ask asont be. ‘ata « eat
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ed tad? potert edt peottox” 24 ittas $0952 860 edd teste eorenta wr s
jddsoa off mork Satsce mi est eas te ant ante oftat dw 16 ited “en: eee
od meds (ewe ota & ko ‘TostaLp a “30d: saw sveon odd woz aterd “edd:
-ostis ed? waa on: bet itsaot trots ad todist agent tx of? ii ah bootten te
grision mtsxt old bro ed sxoted dt bootton: brs mortate Ite edt! ovaet 3
-seoto oft mort ofhe: a sodtanp 6 outs suistenos eae ‘dot aw aise: eae
@£ oF & mest guitevert sae eltdonotss ont ‘tart et was toate ant i
to. gatirew oH gadt jmotdate gabeit t edt ‘tot a “Oat S | add fa. “sured ae
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2-d80d.s neds. BBW iinet eeu od tedS Bas ,diude cae mort gat
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Aasern
le away. This witness was asked about a cut in appellant's right
PY iy south of the highway crossing, and testified over appellant's
Mition that this out/about three-fourths of a mile south of the orose-
and was about 12 or 15 feet deep. Dr. F, Buckmaster testified in
if of appellee, that he attended her while in the hospitsl, and on
morning of the 28th of April 1924, operated on her fractured limb;
_on-dpril 29th, the day following the operation she was quite sick
excited and at times was in a condition of semi-stupor; that the
[ote ry, reasonable and ordinary charges for services such as he
ered appellee would be §500. or $600.00¢ Omer Hill the chief operator
aepeliaxt at Mocassin testified that it was a part of his duties to
ake a record of the time that the train from the south which collided
ith appellee's car, and the one from the north, arrived, and that seid
bord showed that the train from the north arrived some considerable
inutes later than the one from the south. He stated however that he
no independent recollection of this matter, and, upon objection of
he appellee, the court refused to admit this record in evidence.
8. Heath ,conductor of the train in question testified that as they
Oached the crossing that moming he was riding in the caboose with
emen Rolls and Peet; that as the train approached the whistling post
engineer gave one long whistle, and as they neared the crossing two
and two short whistles; that he looked out and observed the signal
at the board at the station which indicated that orders were there waiting
™ him; that when the train stopped and he went back to the place of the
cident: that he did not see the accident, but that as they were carrying
p6llee into the depot she told him her brakes didn't work» Sehe- brakeman
ot testified that «s-they-approsched -the crossing he was in the caboose
the train; Aiat the whistle was sounded for the whistling post and also
r the station as they approached the crossing; that he was on the leit-
: side of the caboose at that time; that they were tasking appellee from
ath the car when he first saw her, and that as they approached the
sing there was no train coming from the north; that he looked to the
h and could see for one-half mile in that direction;
“ae PJ
tigi t e'iseliegaa at dye s duds beves saw -ecenttw alk? - ows oLh mt \
-atinel eqges tere bebiréeet Soe ,gtteeoro Yewdgid edd 2o.désoe. ws"
~aacte oft “te divee elie a to eddinoi-soids suods a0 eid? tadd. attest
at bet lites? tedaandom «1-<ed ‘eG 90h Teet aL-s0 Sf dwode saw bee 9
ne bun ,fetiqaed ed? ak eftdw toi bobmetts od todd -,celleqqe to Rise
cdteki Setutoatt test ao: butatero eSOl Litqa-to as6s- ait to aterm ¢
uete eatiep aaw-ede aotteneqe edt antweilet. yab ond. +8103 Bu 0 te
. edt talt proqate-ises’ to s0ithotos c gf -aew gomht J3. bas bottoxs +
@d Be done -eooivide .xel ‘segrade yest bio: bas : elt anoeses: eTrante
tetovedo teldo:adt LITH 1am0300s008¢.t0: 6008 ed: yb Laow collegues bexebs
od asiini eid te disa o aew ti tad bobtisaet atcanec te, tuaLioade,
bebilieo doldw digoa edd mort ater? edt ted? emty edt to breet 602
bies Stadt bas. ykavtese ,ddvon edt moth eso .eds. baa. mee a eel fodga a:
eidatebianos enos-sevitta dtyosodt moxt miog® odd edt: ‘bewode bres
on tadtiaovaeod Betate ah. das ca. aad mort, ene. sdt- aedt etal eotue
te agiiseide-negqr , bas ,retted-sidt te- wolteeLcoogs tupbiteaebnb atk
wonenlve at brooex etdt thmbe ot Seastox txsco edd. oe kbega 4
gedtie2 fads Beilitesd moitserp a2 ofest edd -to- rod ombmooy dd aH: «8
ddiw esootse wdt ah yatétr- ess ad-gnimow tadt- guivecrs:edd botovowt
sa0q gat iteidv. edd .betosoiqds atatd odd as todd deed. has a Los meme
ows gatesoto. eit hereon godt sa-bne ,eftaide gaol ene -s¥38. rooutgae ¢
famatc edt bevrogde fae dup bedool ed stadt. jeettataw. ‘trate owt: beara
guidiaw. ersdd etew eteizo godt beteotbal dotdw-noitseta sf, te. Based. edd,
ed? 36 eoafq edt of dead. taewred bee heoqqotaatatd. edz. spdwetads oa. i
Buiprtao erew Teddies dadd dod. ,dmebloos: add. dea: tom RLE: od. dads rtaebts
Saneiard. oth gaxow ¢'nhbto aeaertd ted mid bLod- ede soqep ent. oFuh 90 Lied
es0odss oft: ai-saw ad gatesvee- odi- Sedosonge gedd-we tadt parson a
oefa fia: taog: gittitaidw ett tok. bebages saw. oltetdu ont toch gatas. ont
“dies odd so uew od todd ygntcnore oft boddnerads, yent aa-aoltede -odty
mort selloqqs: antuss orow yodd add pentt: dade. te ‘@a00dsD: wht tobe be
ett bedosoraqra yedt) aad adt: bas ,.xodswaes tent? od node ten ent itso
vodt ot bedooL od tad: yeitrom edd) mont: ‘ BaRoo Mets, caidomad fei
Mus Qe a int ES Gay pe Fat x rd Gable: cast eras ction esti meee au
“ye
That he helped carry appellee to the depot and heard her say her
kes would not work; that es he went back to the sation Me looked to
north and paw a train headed in on the switch track about a quarter
of a mile north of the depot, Brakemen Rolls testified that he heard
warning of the whistle at the whistling posts and at the crossing;
that the first time he saw the train from the north was when they were
returning from the carrying of appellee to the minister's home; thet when
the train stopped the caboose was three or four car lengths south of the
ssing, and that as he got out of the caboose to go up to the atotion
© saw appellee and the automobile at the side of the track, Albert Day,
section foreman for appellant testified that at the time of the
aecident he was about 500 fect east of the crossing in question; that he
had just come from the depot down appellant’ s'track to the crossing and
then turned east to his home; that as he left the crossing he saw the
trein about three-fourths of a mile to the south; that prior to the time
he saw it, he heard the whistle for the whistling post end the two long
end two short blasts; that after he reached his home he could not see the
train any more until it got within ebout eighty or one hundred feet of
. erossing, and at that time he saw the automobile approaching from the
west, That he ran back to the scci@ent and helped carry appellee to the
depot; that he went to call a doctor and when he returned the train to
the north was then coming in on the switch; lizabeth Haase testified
in behalf of appellant that at the time of the accident she was living
ix the Homan house to the west of appellant's track and just south of
Rffingham strect; that esstket-dex at about 11:50 on the day of the
aceident she heard a train whistle just ss she wae ready to start from
@ house to the street; that she saw the train before she left the house
and it was then four or five ines feet south of the crossing; that she
20 1d not recall how many blasts of whistle she heard; that she did not
see the automobile, but heard the crash; that she did not look to the
rth. On eross examination this witness testified that,on further ¢ on-
eration she did not remember where she was when she heard the whistlee
We He Homan the owmmer of the store and dwelling west of appelaant's track .
stified that after appellee and her friend had started the automobile
-5-
sot yao asf brood due fogs odd oF oofleqqs Yxteo beqied af ted A
ot Sexecd wi Aotfate edt of oad thew ‘ed ga dates prow tom: bisow- isi
tetianp « Prode dooet dotiwa. edt ao at bebset abart a wee: baw déte 7
hice ef dat? belitdead a Lieh eemedesies etoqed ett to'dteom! obi
igtiveowy odd Fe-dere ade og ‘gotlielmr edd ta eitebiw ext 26° gabe |
ores yor mate caw dtxox eit mort Abert “odd waa elf ents fertt att
aedy Fatt pened atedehiter add ot weLleags ke antyTTeD! edt sont
eis to déves. adtgael tao as0t. 20 estdd’ enw ‘secodso eift bogrore "atu?
noitete eat of au OR of Se0edED edt to tuo! toy edee teay tam \ganten,
Yat Stata tests edd to ebia aft ta Aiibdiodo daw corte bec: woLeqaa: wae.
ad? ‘So oat edd te Sade baitiiee saa ileqds: sob Bonyeot mebtos
od fail puottedin’ af gilea@ore ctiy ‘to tees tow% O08 dwode sew aah toh
bis Gilugote vid 0? sootvedtialloqge nwob toyeb wih hott ero tyet-s
edt wae ef-“gateeote edt $teL st ex Tadd; sated wid od dese Bethe aka
omit suv: oF soixq todd pitwor ott e¢ sfim “ste! aditxsol~vvnds dreds ats
anak owt odd ‘one Se6q ‘gatitaidw edt cot »isebiw “odd: baer orl VE wate
edd see tor BLivo sh andd cid. bedoaot et codts pane qetansd daotts ane |
"ks Jook bevnmt Bie “to ytdgis tvods afdéiw te, ti Litre ovom eawats
odd Moxt gitdosdrgye ofteowstnm odd we on cinke daatd. te bn! gynbeters.
eit of Seitedse treks baqist bus taebl ose odd--0F oad tee tarrnsis se
od Slaxd sat demutis of asdw has wet.0b-s LDso lob tiem et tat
Beltivaed dessl died aatie’ “ydee tee edt ‘ne at gatwos matt ese
gatvil ecw ede duebfoos edd Leen s ont te fant. vnslleqaa ‘to-Ataete:
“to dé@see tact bas doetd a'Soalleres to teew: odd “oF -onstodt asinelh ont
“edd So yeh ent no OG: ff trode te geb-tediese suitd qoorwks mia:
ont trade of qoner aw ete detent oftetdwantiens trina ite
saved aft dtef-eda oreted ntotd ade wid ede. ‘ted; Svonds “ett ot Rance
ene ted? patldeots odd to Atnoe tout ‘oxbeod ert x0 ever mode: aw ot 4
: Pome bth 968 sade shtsacd bade eitet site etesld: Verret wont é pare
“edd-ot Bool ton obb Sda fade yteete’ enh preed ded etidouedye odd «
onoo taildiut Ho, tadd bot tidest Baers tw ate nor toninaxe:2do%e '80 ists
-oltstiw eit bitpet ete sodw ecw ede eves sediener toms26 ipurhinabies
dost @' dosalsgge te toon aalilerd ba tote coeds to pest
@Lidomotss edt bedivte sat baotzh os tm gokcouns noth aa: baat
en RL are
heard a train whistle end his recollection was thet it was one long
and two short ones; that he then stepped to the east side of the
saw the train to the south possibiy 800 or 1000 feet from the
that he could not distinguish whether the whistle he heard was
a train to the north or south; that in a statement he formerly made
/ said that the whistle he heard he took to be a whistle of the
to the north of the highway. ,
_ A witness for appellant testified that a Ford automobile such as the
driven by appellee with brakes in good working order and having two
engers could be stopped in about 7 or 8 feet while travelling at ten-
es pe an houre Appellant introduced in evidence a signed statement
erning the accident which its claim agent W. F. Tweedele stated he
red from appellee at the hospitai on April 30, 1924, and Which she
| over at the time and stated &% was correct. This written statement.
rrea to as defendant’s exhibit 2,is to the effect that appellee did
look to see if the train was approsehing as she was interested in
ing the auto started and if she had looked towaré the south she surely
a@ have seen the train approaching as a person had a good view to the
uth with no obstructions between the track and the Homan dwelling.
: : : tise testified that at the time this statement wes taken
pellee told him that she did not look to the south after she left the
filling station, and that,if she had,she probably would have seen tne
train; that when about ten feet from appellant's track she glanced toward
uae south ané for the first time saw the train coming from that direction.
Appellant also api at in evidence a written statement purporting to be
stened by the slay Bessie Kyle, wht@htyg? C2Br 26028 he secured at the
same time as the one from appelles. This statement, however, the court
: upon object ion of appellee,refused to admit.
| The statement purports to have been taken on Wedneoday, april 50th,
“two days after the operation. Mrs. Kyle,also testified,that she walked
ong beside appellee as close as any other person as she was being
house
arried from the depot to the minister's hoye , ond that appellee did not
there state that the brakes didn’t work or words to that etfect. This
witness further testified that she was in the room with appellee when the
ie io
ee ee
anol emo eow J: tadd eaw mobtewllooes ald bas. eltetdw atery,¢- 19
gat ic ebts' tase: odd cof bgidets modded tadt jaeno troda-owd : nad
vid moxkE deek OCOL xo 8606 yidtesog .dinoe -odt of ulerd: ‘edd wee bas" i
any btaed od eltatde eft sedtede datigaitels tom ’Leoo: ved add ; |
abs vixresdsot an ident ate ‘2 af ted “pAdévoe te dhrom edd ot atest. ’ q
ett to eftatsw s ed ‘ot id of ogned ed eftetdw edt Feit Stee Bes
| Cavidgid, edd Yo Mtvom ont ot um
sit ee deus oltvondtse Brod 4 -tendt bettiteet test ieqqe sot secttiw A.
* wd Bub vad' bas vebio sakdxew boo3 al eedoxt dtlw eeLleqaa. yd nov Eh
- fet te gut flevast eitdw teetk: & xo © tuode at beqiode et bites eregnee
judvetsta berate a sonabive ni beonbortal dasifoqqa . .isod me ee 86
ef Oetstea eleboew? .4 . dmege Mtalo ett dotdw teebtoos odd gatirten
‘edo doidw bas SUL 0S Lived no Lediquod alt ta wellegas net bors
inviolate avtéluw std? toors00 caw kk betate bad emit, edt ¥ reve w
&Lo seileqqe gadt teekie edi of af Ss tididze e'taebaceted ee of boxze
Si beteoxetal aaw edb ao gutdonotade caw miss oat tt oea of sook
qietms eta dtuee sft firawet bexool bed ee i baa bedreve otus ont ‘guts
et of wel¥ boog & bad soste, » es guidepouqys aterd edt ‘meee ‘eYat “bE
“gait iow femok oft has Acard odd. mbewted enottousteiio’ ‘a ate a de
“ é dad oem tuametate cist amit Sat te Pad Sobtitaes eek
eit thel- edt xefte divoo oft of dooL, tom bi ede ‘itd ott hicoal aecte
‘edt neve svat bisow yidadorq, eda oat oda ut, tant das >“ hotdeta gXEL
Brewot beounts até doatt a'tnafleqas mott feet inex) ‘deiod a aot teat jm
stad toon b fads wort salar abaxrt add wae. ants: dang ae fail hal inte
edt t2 bersees. od lomeveaigtn ely so ise .
tyson. odd ssovewod tnemetete ats? . ool Logie: mort sno. ost ae ault
me es re -thmbe oF besuior, doflecas to mot tostde a
306. Lisda\{abncube ao feet ‘need errs ot advoussa tadiet ete edt ‘
howisw ofa tad, botttves? oats. elgd set” - Snolsezeao. eit mova sab.
acog saw ede a8 does oq i 5este ca as. sate eoibbctoaas eb é é Be
tom 615. eelleqas tad? bas , prtet e'novstatm. od ot: toasb. ode ost boty
eid? iteetie tal ot abxow <e- row ‘tapi eederd. -oild tot cotta" or
edt «edw eelleuqa-asiw moor eft mt sew~ede- take bottt fact aeddzot eas
oo
gnt in question was signed, and thet during this time appellee
5 in an apparent state of stupor part of the time, and that at times
would rouse up to some extent and then seem to fail back in a sleup
mpors that appellee did not there state to the claim agent that at
ime of the accident she was interested in getting the car started
aid not look to the south mor if she had looked toward the south
e would have seen the approaching train; that appellee did not read the
nor was it read over to her. Appellee testitied that she did not
emember secing the claim agent nor did she remember of him visiting her
t the hospital or of ever seving or signing the statement purported to
been signed by her, and she also denied making the statement to the c
duetor that her brakes failed to word.
At the close of the testimony appellant moved the court to give to
jury an instruction directing a verdict in behalf ot the appellant,
in cS «OP LION BY HIGsEH, J.
claimed by appellant that the action of the court in denying
its motion for a directed verdict wss erroneous for the resson that the
vidence shows appellee was guilty of contributory negligence and was not
she was injured.
ne due care for her own safety at the ti fo sustain this position
appellant argues that the evidence clearly shows that had appellee looked
the south efter passing the Homan residence she could have ‘nom the
rain approsching from the south, since the evidence shows that for
Practically sll the distance from this dwelling to sppellant's railroad
ack the view to the south is unobstructed and the train would have been
seen for a distance of at least half a mile.
2 No doubt it is true as a general rule of law that if by the exercise
if ordinary eare on the part of appellee she could have secon appellant's
in epprosching irom the south, then the law made it her duty to ses
the tay ane if she failed in thet respect such failure would bar a
“recovery by her in this case. while true as a general proposition of
aw, the above doctrine is not applicable to every case involving personel
njuries from an accident such as in this case. The question of whether
rx age spicnbae was in the exercise of due care and caution for her
. - T=
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amit ta ctadt pan s emt g. edd to Seaq rogude: ‘to state dnetaqqs aacnlin
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of evig os. drso9 edd bevem Jaa fiequa Contvaad. wal to
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edt $8d% gogaer odd 10t eS 0asorze. #aW Jolbtey bevoarip. a tet beasts
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heed ov acd bLitow : phe d- eit ben: betourttad ony. Bt aigog Pah Ot: wake lh >a" a
ho) Syrile Ue RSeRe aH cele sited ten £ te foth: 5 30%
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eee Of Vanb wed te eb sat wal oft. faa adtube. eat MOXL gata e OEY 3. 1M
* 700 bine. otmibe? dong toogsoy. tate mt botke® ede tt ona he
ie noltieoaorg dvtene, & gs, amet eLide:. .28ap. aint. ed Rd eae
Lenocareg BALViovsi- seap (rove. at eideeiiggs tom. fom et COLA OOh. er Ads: od
wodtedy 20 eottecup ed? . .eeco erat at oe Anohbeed: naan
tod Yet Hertsed pms e280 258 i iy Okt BE Rem: enh ean ft
naa
m safety or was guilty of contributory negligence was & faet to be
texmined by the jury. Failure to look at «4 railroad erossing to see
fa train is approaching is not negligence per See tt is nercligence
a fact ai there are no conditions or cirecumstanceswhich excuse such
oking,and depends upon the facts, conditions and circwistances in proof
rounding the accident. (Boule v. I. C. Re B, Co. 86 Ill. Apps 255,
nicago Junction Ry. Co. vs. amrow 114 1d. 501.) The evidenee in behalf
“appellee tends to show that she paw the train approaching trom the
) th before reaching the crossing, and that her attention wes upon that
a If this were true, it is our opinion that even though the view
> | the south was unoostructed and appellee could have seen the train
= from thet direction if she Peptic vt - ed, she would not be chargeable
contributory TO Ee in not so’ Going, since she was equally
rgeable with notice of a train approaching from the north. The jury
es to determine the cuestion of her contributory nagligence or failure to
prcise aue care and caution in view of all the surroundings at the time
dif they believed the testinony in her behalf thet her attention was
seted to the train at the north, then uncer all the conditions surround-
- occurrence sag shown by the proof, the jury would be justified in
jing that appellee was not guilty of contributory negligence. (Gibbons v.
» B. & Ce BR. Co. 265 Ill. 266, © & de Railroad Co. vs. Pierson 164 id. O86
f ny rate there being evidgenes in the record tending to support appellee's
n the trial coart to submit the
The
atent ion in this case it was incumbent upo
[ s to the jury and deny appellent's motion for a direct Verdict.
evidence ag to whether this train was approaching from the north as testi-
to by appellee and some of her witnesses,is somewhat contradictory,
there is some little evidence on the part of the witnesses in behalf of
peilent tending to sustain her contention in that behalf. We cannot say
bat the jury who heard the witnesses testify and saw their cemeanor upon
Bi et tnese stand was not justified in accepting the version of her
esses rather than those imxxekext of appellant. While the charge is
that Neb sowie easily have seen the train from the south if she had
i, yet none of the trainmens placed upon the witness stand by appellent,
‘of whom had equally as clear a view north to the highway as appellee
a, =@-
<
- go oe toe t e-esw sotegtiquar yrated badnoe ‘te gt linmm“aaw $0 Ytetaan
ees of gatenoto Bsorkiet« fa deok of empliel -~ axeh odt.gd bombegal
eonsyliivem ei sl - .easeg -eoneg tigen ted at paidosorqge ef ‘eiast ie
dose eentone dol dwaeodgetenirotko<r0) anoitibnoos om ste -otedt.24 dex
root, of essusdemsorto bte-acottomoo atest edt moga-ebmeqeb bus yaks
.28S .qa .ffE 68 200 i week: ov ols Ob sFHehbtogs ent ge thas ow
tisiea af eetebive ent ({(i£08 wbb SLL wormh set 400.698 nottonsil-ogee
ai? mov? goidesdidon atet? end dew ede tad) wote.of -eboeg -eebleqgs
tadd Noda say HOT dnotts Ved Jad Boa gtbewors ony autiiouet er dted ad
wobv off signed? nove tad¢-notaige tuo’el $f joert Svow ekds RD
pice? vif weer eva: oldies vellegde baw betourtedoad eaw twa adt
deifoouty Fah aévk gat
woR EI: ‘gies fede 0 a
exe edt .ddton ‘eat mex satdosotdqe ‘nkard a- % dotten atiw® ieee
aifsegtade od tom bitow- ode- ee *
gitgups ‘sew oda oonte ~stdo8
of sxuLlat 16 osaagtigen ytotedixfmos ted to aotteeso ant: okies
emi okt ta eadhbaveiiwe odd Lie te Wétv aE Boftueo Sue tao ine tes
gse moldmetre ted todd hiedéd xed dt yaouttess od¥ Betebted “ode EE’
~houctive angittemos et Lie tubad imedt |, ddim ons Se -aistse eae at) t hotoat
“Ob pottitast ed bigot cea ones toorqg vdt yd mrode 28 8
.¥ gaddd $2) Some stised: eis taaeeined: ‘to Utitus tom saw celled
536 .6f SOL AoayeLd .av 16D Brot List wa a0'r,0a8 w£f1 See 00 fale .0. a8
e'oeifeida: txédaus of gutbaed Seoge, edd AL spkehive st ed orsdd etat-ynn
old Shade ct Yrw0s Latrt st? seqa tooduueNt-eaw #2 vedo emt ad mol daed
one tolorot Woorts. a Yok moftom~e' tmallogra yaeb bas Yewl eas ote
ee ere eee Satdssdtaga aaw aiart etds sedéodw oF ge bones
.er Ofotbarinos Sanwomée et wedeaad te tems to ested boe eelledea qd ote 8
sen eh oxo dt”
Use Toanse ef ~.tferted tadt at sottavince ‘ed miotada ot gutbtes¢astse
ogy tonmksued tisdy wee tan “Utest eestentiw wit breed one oqaut «
fie tae a “aes
tut te molarev eat “Qabtossoh at bektitast som daw: biate asa.
ek aguado od? sLid® steel foqqe “to ikembsieitk cet “ass isan aout
pad aie ti dtiee oft oot niasd ent ndes® ered” Ultede 6 Bios eae” fads
teoliedia Ye busta seeadiw etd nos badald “felongt S49 oat 0! “etter fy (bes
te tiated of ‘aecaentiw edt i tyaq edt mo>-eomebive oftttl teme
sad Seuas as yaedyid eat ot deo wely rt xe0lo 88 eiLape bed mod “2D a
-8- |
hed from the highway to the south of-appellecsdideusf2Mee her car until
it Was struck by the train. It is quite lixely that if sa train was
iapproaching from the north the attention of the trainmen on the train
from the south would be diverted to the train coming from the north
Bastecd of an automobile apyroechiag the crossing on the hizhwey. This
would also tend to explsin why none of the treinmen saw appellee's car
until after the collision. It ig also insisted by appellamt that the
evicence does not support the verdict, in that it shows no neglizenes
ox the part of appeliant’s servents in operating the train in question.
There was evidence on behalf of appellee showing that the belli wes not
sounded nor the whistle blow, as the hirshway was approached. On the
other hand there was testimony on behalf of appellant to the eficet that
such signals were given. While the svidence on this question is con-
bradictory it was a matter within the peculiar province of the jury to
Pa
lecide and their verdict, in that regerd should not be disturbed.
d Numerous of the court's rulings woon the admissiability of evidence
are also urged as error. 50 many isolated bits of evidence are pointed
mut in this branch of appellant's argument thet to diseuss each of them
pould extend this argument to an unwarranted length. We deem it
botfictent to state that we heve exsmined each one of thesem matters of
evidence referred to by appelisant and are of the opinion that the court
committed no reversible error in its rulings thereon. It is also
a sisted by appellant that the sixth instruction ggven in behalf of
appellee was erroneous for the reason that it advised the jury, in case
the jury found the issues for appellee, and that appellee had sustained
damages by physical injuries, etc., it would not be necessary for any
fitnesses te express an opinion as to the amount of such damages, but
Jary themselves might estimate the same "from the facts and circum
stences in evidence, if any," and did not confine the jury to the facts
nd circumstances in evidence on the question of damages or on the
stion of such injuries, pain and suffering. In other words it is
ended thet this instruction permitted the jury in determining the
lamages to consider intéense which had no besring whatever on the question
f damages, We do not believe this instruction is subject to the criticism
me =Ga
SS ,
Lisa 139 sed. oA onenibzoeiiecge-te Adeoe ont et casey tal at 207 2
Aa Ahagt @. 3b tact tleatl etiee et BSG abbesd: oe wa soute: ox "
Gisss, eddme qomntaxt edt 10)mohtmnesta ot Atx0% ocd most gadiosorg
42 79%, odd wort, gakgos short, odd 08: Dodrevtd, od ubLaom, ‘ats at
abi. . (awdald edt no BatgReto scid sai dveona a) eLtdompdme 9, ore
Tes ‘eed Loqae hail meamek wed ods, ‘to otis saa & ladane: ot baer eta bts
4 vit tact, toe Ltoqae 7 besetent: cate. at: ah saobe Loo ‘edie fe:
| epneadizen om evoda $f tad? at .tobtcor oat troqase’ tom eal
snonteong . BL. ua wee odd saisazago at ebasvs0s. e'tapifequa a drag .est
: sou aae Ree: odd ted gatmeda: eolioase. to: Listed 10. eoneptve: eam oe
edt a0 sbodogosaa.s 2B, waucig it adi aa +av0ld, eltetde end ron bobs
fad dootte edt 3 thaLleaae to. estod Cy woatseed. om ‘oxen? five
“Moo Ad gottaoup ends, 0, soaebive itd ohh oaerdi, oped ite
beratog ots, eonvive 1p até getasoat naw a
th, Move. ot ' a rdtoned betuerxonae as 08 } aa ou
_ tes ‘odd one, sotatgo ost to. ors, pan . daatiouss. wd. ot ane ee
, oa in et fk. ssoot0ds, aguiles, ete ME sour, ofdlarever. "00k" pod $ hae
20. 2fssed of genes poitovrtent. airte: 26, test pases otek
Ewe
Pak
Nala, 302: Urseagoait, @4. | toa bison, th 19980. yeatweten: conead 10Ra0
dug, cagnanas, done ke, tasoma, edd. ot 28 setaige aa. peesane, © eee etd
a eon ig base. ataes, oat me" omae edt, stent ise, tag to aovle batt ne Tae
stest » ead oF cau até one xne9) don: bth, bas, Py ee: “th. eee: | i: , ois
_ pat a0 a0 eogenah ro gotten. edt 9. sonebtye sh otneats woxio, b
gk J2 abaow zedto al. i _saatseYige bap aheg senkzeh ea,
add yeiabrreses, AE ah, edt. dott imeod aot touegent 2
Roitessg edd. ao, aovetede Satta 9 eat doi din eonehtve, poet |
ators te eit of yore at noitountent etd t evel fod ton ob a PHN
nes ae
; Pa oe
an instruction in almost the identical language 4s the one here
somplainea of was approved by the Supreme Court in the case of
orth Chicago Street Railway Co. vs. Fitzgibbons 180 Ill. 466, and Orr Vv.
ahfiecld lifg. Co. 179 Lil. Appe 235. However, in addition to this
penotion a further instruction was given in behalf of appellee which
advised the jury that "in determining the amount of damages the plaintiff
fe entitiea to recover in this case, if any, the jury nave a right to
take into consideration all the facts and circumstances bearing upon that
n by the evidenee" so that upon the instruc-
question, only which are prove
en misled upon this question.
g
tions as a whole,
It is further contended that the seventh instructi
erroneous for the resso
the jury could not have be
on was also
n thet the jury was savised that among the elements
# damage to be considered by them would be hospital ana géoetor's bills
dial by the evidencé. It is eontended this was erroneous because there
pellee had become Llisble for any payment of hospital
was no proof that ap
- doctor's bills. There was Pp
ina doctor's bills for the services perio
roof ss to what the reasonable hospital
rmed, esmounted te, ang as it was
pewn that she was dense years of age at the time she was injured it
Cat that he had become liable for the pay ment
pears to us from e11/P
of said bills, and in our opinion
It is also contended that the court erre
if the jury believed appellee
head of
this instruction was not errone suse
@ in refusing an instruction
offered by appellant to the effect that,
ng from the south and attempted to Gross &
knew the train was comi
jured, and 4¢ the jury further
end was on account of that fact in
Raseved that in the exercise of due care she should not have attempted
and that her conduct in so doing was ne
the verdict should be for the defendant.
pelleg knew that the trein was
3 ahead of ite In
Q cross the east, gligence that
ontributed to her injury then
gre is no evidence in the record that ap
-eoming from the south and thet she attempted to eros
dence in the record tending to show that she
absence of any evi
ally knew of the approach of t
eross ahead of it, it was proper to refu
he train from the south and attempted
se this instruct ion.
ted ene off aa “exatiSdat ‘tsektaebr ont ee at not tor tenk Peas 1g
te gelao eet ae e400 sirereie att we ‘boverads eau <S hi ¢
-V Tx0 bop ,3ay JETT OB ‘endda gett .8v 00 vaw ftaH Yoorts cael We
atdd of mofiitoe Wt {yGvewo ade Laue Ltd er ye" ‘aul ttort
doiaw Selietes To tiaded at nevis saw wottoumvent ‘ana’ a a aelsheee
wees ey ris ie:
ritdaleLg oad aoyameb to aston odd. sutstuzetes at” feud <ie S edd’ fea
Sk RES Arey jae Mr cre
oF Sd8hi & ofan’ eret eas 1 tits Ss 19820 abds a Me dfitg At F ot persian,
BP Se as
tens oust Sat 12d seensteavosts bia etoat ps
“TEs Soltotebtenee _otat Pie
Yeonebive edt ud HSTOrg ore dott ‘lao poitee
Be “head
Av megs betein goed sv an tox bis op exat ods »9Lode Engi ee
Ea ait 2
“olYTsmE os Reag Saud” 08
shoiveeus ef
osia sae Got tourdant d@ueves ass fads bebe 100 x
oitao 2 at of |
me Shae
ademeis SAT snome tardy beatvbs enw vest odd teds os se od tot 480 enor
eliid a'totecs bAs Latha od ed b ivow aon xd boxebtemco ed at
wredt gausged
svosnotre saw eldt bebaetmop et $I seoneptve od a seed
Latiqeos %o te omy aq “he 0% eldekr emo ed bat cel Leqge tads oor on an
fadtge or old siernex. edt sanw of 8s loorg esw oxed? seLfhd 202200 7
Gew SE ee bts . ot hetawonn Bem rotzog evolvres odd rot elit e " tof oob Ou
$f Powstak sew ade eitt off ta oge to _Br89y, neodsigte saw ede @ oi wo
edt
eldeli emoood bad ode todd too ta tie : ment an cs
ton gay tol tonttani aide nolmiqe 0 mE baa rer bias ik
hoivoutdent ne suteytey nt bette soo ext fait babnesaoe cate at 4 =
welleg¢a bevsi fed tre off th osdd tootte odt ot J
inn L tones ww 5 exetto
0 bavia esore of bedgiietta ban s$soe odd mort gatmoo
‘gow § i eg aa
ere ee suber
tontuet Yat odd &E bas , boapta toat ads to tanos08 a0 aaw bats pa
betgnetta evaed tor bLtede Sia etg5 eb to estoroxe eutt om seas bevel ted
kat Pa yhe Va ee
teat esaegtison saw salon oe ok tosa00 sod fat ‘baw
eoext ede Eas
tanbuotes oct nods eutat red 0 betad tee,
women Li sagan tadt bz000 oda at ooneb ive on ro ret
Pee ea tte
ot to boede “neots of bosquatta ors dads baa sts08 oat so2T gatmon
de tads wode ot antoaet bzover ot ak eonebtve tas e:
ae Ce ee
20 won
Santor of xovomy ar =* watt to © Deoite sore ot
diem eq oft rot
onal
eB SLOT e
ot od bloode tolbrey ode
@ew Start eds Patt
basqmotis bra atgoe edt mort aterd odd ‘to oaora qs ait
strot tourtant aida
~-
Kise} ~ <a aS AY sii inte 8g
7
4s further contended that the amount of the verdist in this case
zcessive. Phere was no denial of appellee's injurics. Her cone
was testified to by the physician as well as /Epperies, and in our
the amount allowed rss uot excessive. There peing evidence in
art sufficient to warrant the verdiet of the jury, aad sedng *
sible error mogjin the giving or refusing of instructions or in the
the
of the court upon/evidence, the judgment saould be and is sfiirmed.
¥ IRMED.
lh he epntid
rs Me SF 2 eee ean f SP RE nets ae Oh STS: Pehie ah
e820 steed totteor ed be tawome vs Sant pete we bernie oe me.
-a99 188 aN ateelloqgs te Eobaep on any erode ae 8 ’
a0 Oh bate. apectoalkgs ifew ae natoteyda ode i ‘cf bobtiteed gsm & |
ai soseotve galod wredt soviegeoxe RE sa ars is sumone on 7
i gates bas <Uret edt to fothtey at diprcte agy ? Bs oui
sak; at 20 enoltocxieat to ) gatewriex x0 ae Bs
yee geet eh aa eat wy ‘pata:
pit 4 ii ht FOO E aoe « a nei ie
Rh
Sy 2 ¥ “ SVT oe. Fe #f . “Soar os, me, 8 oie
POA 5) On wat Z 2S deowes
A aw SENT fe Pag ip toad tiene. ae
heat
it th gid Be Weitax eee. tute ees On ry Pit, OR RRE saathe Bees E
Boe Beet Bee os aR: Bea pyar SC TOA aah Pere | che TOE, sh ehe i Rog peb, .
a Ra: cree fs oo Qay odes Bae, See
Ke eee
ad? c
«Ste Feds Rena \ She wor “8 OR. wt tt
pe
ERRotte tie caw wot tenetans BEAD ei hes cea) ai and eitad tion x
y Sepia ed oivnie davely cals es ae
; ne cies iin ae
* , ee ie Se Me ME Rate eT Rd a Fant sexe et boner
" res ee A a
fl ~ Gee” SSO TP es geass a he Kage. TER eg an seg aoe axhata Py wean
j Fe) apa rai: ay,
as "ig PRC, LE Sa ea aa a tamwone ae nti mata, she
a9 i Be t
et OO OR TORE OS me: eae x tet
A ONS GER
BAS SRN A Ag RR NE Sg Yr a emia ia ae ae 3 tia: ent ad? ‘apone }
lng 8° Sahat as
Say ltt Ae WOR A. FER Sat ae mere CENuRE 3 of beatae
“ ete Dap ie
mee ee ne + ey Gest <2 eee} A? ea rk Ht aetat ort ti wt ce wi 3 ae bee inl
‘Se tat thea Weber we Seas Bi 38 aoe sags Sita, Aaron Heel me
ex
~ Na
thor wees stds RE ees eh hee wie be Sonne ;
oe
A.
MITHISS Se BIvOe SF wees peewee - sonra. ade +n wid ry BML
USI OE TOR! Bit ee eee Con sae Re de * ba oie nts
: ¥ 2 ee,
oe4. Agenda No.38.
Appellate Court,Fourth District.
OCTOBER TERE,A.D.1926.
3 & a we
| WILLIAM J. VEACH, ) eo © See
e ApvelRee ) i ASy
ao val
ae i ) Appeal from City we, 4, < ae
W.STEGYEYER and C.D.ROBINSON, ) BAgT 7 Lonisie? ., Se a
ER INPLEVENT and AUTOMOBILE 0 i Oe, SL
‘i UD i ae
Appel lant ) “end w
Opinion by Rignen, 2 = +
---o00--- 244 i.e OO
This case was before this court at the arch Tem,1924 on
which occasion a decree of the trial court in favor of apvellee
was reversed and the cause remanded. (Veach v.Stegmeyer,233 I11.
App.559). In the opinion of this court filed in that case,i8
found a complete statement of the facts,out of which this suit
arose. Upon the cause being redocketed in the trial court an
amended bill was filed,and answers filed thereto by ©.1.Robinson
and Weber Implement and Automobile Company. Upon the second
trial it was stipulated by appellee and the answering defendants
that the evidence submitted before the “aster in Chancery on the
former trial should be considered as the evidence on this trial
of the cause,together with such further evidence as should be
furnished the special “aster in Chancery by a date named. The
additional evidence submitted,nowever,did not relate to the
chattel mortgage given to appellee on the car involved in this
suit or to the release thereof. Defendant J. .Stegmeyer de-
faulted and a decree pro confesso was entered against him.. On
the hearing the court entered a decree finding that on the 12th
day of July ,1921,J.¥.Stegmeyer was indebted to apvellee,W.J.
Veach in the sum of $3825.00 for which he executed his promissory
note and to secure the payment thereof ,executed and delivered
JAE. OM ebmagd | x 2.
-doinieid détso% t1009 otal ioqah. iy .
caege hae PS
so ae ‘
Se eae se 1. dA, uAgT ARAOTIO 3
oN 2 if : : are: LS Piha i Bou
KJ ee j gy Tha Gs i Yaad 2) eA cee NaLsate, .
Ke g? O yid mort Iseqq&:. | Paya Sal0S SIPS: Boas ad
x nis Bi: tex3
ss ages. 2 POME =v bu? es wen lite oreialaae
et ag at AS PS We ‘a ¢
py ae AR bios at b-90 aTLAQUOTUA: per
he ihe Me Po aaieid | y saat eggs
age
ee : BS SPE eo. eas sas
Lee Ss US ‘Tieetigt yd noidtad > ‘ + ie re
GOO. A.EKKS? ee: 3 Be eee
ons
co M2@f.areT dora od ts dyuoo eidd etoted esw eano einT
selfeaces %o tovst crt dy0o Ieitt edd to se1oeb 8 notesooo do tlw
-ffT 88S, veyengedé.y noseV) .Sebnemer seuro oid bie beetevet anv”
@i,eess deid mi befft sxs0o eidd to moiniqo edd al (ad agh
dive eidd Moide to dvo,edost edd “lo dmemedade otefamoo s basot
ne divdo Ieivd edt nt bededoober anted oauno ond #OqU .eeors |
noptiteh.7.9 yd oderadd belt? etewenr bth Heltt-es9 Eftd*bebcoma
hnoose até’ oogl = s quaqaed elidewmodis bar dvemelqmt redeW bon
aduehnotes satvewens ond base eelfecan yd bodefuqide eaw Jt Iniad
ert co -yteomed) af tedeas™ edd svolsd beddindue somebive edt dant
fetyd aisdt ao sonreshbive sid ea petehieros ed Siuvore fetws tomtot
ad blvode es eonshive reddrut dose id fw Pronger:
ed? .bemen o¢sb » yd yreomsdd ot rade [stoeqe ond bedeinwt
ad? of edefet dom bib, revewon, bedd imdye sontebive Jano i#ibba
eid ai bevfovat teo edt no selleqqs od wevig ogager ont fodtadto
-ob royomgede.¥.L dasbnoted .tostadd eeseler odd oF 10’ dive *
nO mid tentegr beteias esw osestmoo org se1oeb & ‘bak ‘bed inet
AaS{ ent mo dadd yxibai? eetosh « ‘bevedne é1u09 it gira aie a
-L.¥, sellecas o¢ beddebrt aew ‘reyomedé. W.L. 1901 » Yfut “to yb
yrossinota eid haduoexe ad doidw rot 00.68868 to mus edd mi dosed.
herevifeb hee badusere, tostads dromyaq edd ersose o¢ brs edon
to appellee his chattel mortgage covering the abtomobile in
"question, known as “Lexington Car", No.25112,Votor No.41344" and
two other cars; that on August 24,192l,upon representationgmadé |
by Stegmeyer, appellee executed and gave him a written release
of said chattel mortgage,which Stegmeyer later,on September 7,
1921,without the knowledge or consent of apvellee,filed for
record,imm and the same was recorded in the office of the ree
corder of 3t.Clair county, I]1llinois; that apnellant obtained
possession of said automobile and sold it and retained the pvro-
ceeds of the sale; that the reasonable market value of said
automobile at the time apvellant took possession of it was
$2110.00. The court further found that the representations
made to appellee by Stegneyer when he secured the release of this
chattel mortgage were false and fraudulent,and decreed that
said telease be cancelled and set aside and held for naught.
It was further decreed that defendant J.W.Stegmeyer pay appellee
the sum of $4669.68,being the amount of his note to appellee
plus interest thereon to July 12,1926; that appellant Weber Im-
plement & Automobile Company pay appellee the sum of $2616.98,
being the reasonable market value of the automobile as found
by the court together with interest to the date last mentioned¢g
that whatever amount if any,should he realized by appel 1S
from said weber Implement % Automobile Company be credited on
‘the amount decreed to be due anpellee from fétencant. From
that decree this appeal has been perfected..
The principal ground argued by appellant for a refer-
sal of this decree is that the evidance does not sustain the
4 allegations of fraud on the part of said Stegmeyer. These allega-
tions were that on July 24,1921,following the execution of the
chattel mortgage to appellee edaty te stat , Stegmeyer revresent-
ed to appellee that he had a purchaser for the Lexington automo-
7 bile covered by the mortgage; that he would be unable to sell
soe
ai elidomoime end yritevos ognys 10m fed deco aid eel lage 0 im
bos “SBGLh. of totew Sid. oH," Sago | stodgnived® as “nvonx motdeoup jl
phangroidednsrerget sogu SS2f M8 deugud do Jedd ,ets0 teddo owd | 4
gerelet nediiyw 6 mid eveg baa baduoexe ae! legge re yemged2- x
.) tedmasged ag,tedel soyomgodé doinw eysydrom Leddedo biss to. 4
tot helit,eelfeqges to Jrearog v0 epbolwons ong net ERS
781 98d To e9itto edd at bobroast 28H. ORB. ads. bees sah D0 98 ol
baxisjdo dnelisaga tedt ,etoni fil, ydauod séas0, 36 to. tabyoo a
-o1g oft deniatey bos gi floe bus efidomotus,bise to noleesaeoq _
bire to eulav dgoxtam sfdsnoeret ond stadt, efse end to. eheso a
sew. $f. te nolensezog Zoot saat lacus emit add das el idomodue
ano fipin eeetaet eft dadd bawot ‘yoddwt sru09 oft .00.0L15¢ 3
aint to eeecler edd bewose of medw reyemgeté..yd estat od. eben
tedd beetosb ons, dnelubysit bas ealel.stew sgsadtom, Letdedo
jigver tol bier bos ebies gee bne belleonso. ed, eeselet bigs
colleqan Yar reysngede.W.L daebaeteb Jad? beetoeb rodiret.eaw tf
seifecqs ot edon ein. to ¢ayome, ent ‘gaied.83.03088. lo mye edd
~#l rodel tus! feoge dedd ,9801,S1 ylwl,od, soeteds, tactedat eulq
82.1588 to sweedt eefleqqs. ysq yaagued; oligomotus. 2.Jgsmelg .
bawol es elidowotus edt to suley Jedtem oldecorssr. oid gaisd —
_ ybonoitnen test. oseab- edt, of. dserednt asig redsegod. Sis ead. xd
Seb! foaue yi beri fesr ef bivoda,yos ti Joyoms sovedscw, deds
ao. hedthero, ed yasqmo) alidomotus.#. dnemetqml. ‘reded. Aige most
pork . stasbnotscor3 ealleqas eub.ed. od. bestoeh dovome edt i
3 hee need Bad. freqes, Bids, 8198 | dads
-tatet & oe dik eat yd begets - Sooty, Leg lonin Wirsedia ee
_ od atadeus don eeob somabive, edd Jedd_et. eet, sidd 0 fee —
~sgelia srenT ...teyemgeds, bise, lo diag add 0 usr, 20 enoidegelis RS
ait Yo soidnoexe ond gu iwol oi i8L.2S. xu. mo, ded. orem anotd .
-travercey reyemged 2. £3 atest eelleqgs ot a
-omoiue cotanixel edd xe, due & bed od teas eel loaga, i
{fee ot eldans ad. bi vow, of. teod Acanateom, yen a6 ras
cout vara aa Fo ek eye ah. ga a
s Ee f
~-
- _~
the same unless appellee would release the automobile from the
lien of his mortgage; that he requested appellee to execute and
deliver to him such release; that Stegmeyer vromised apnnellee
to dispose of the automobile and turn the amount reblized there-
from to appellee j}emd that relying upon the~nioeseine—ef those rep-
resenbstions,and believing that Stegneyer wauld sell the auto-
mobile and turn the proceeds over to him,apnellee executed and
delivered the release to Stegmeyerseee that without selling the
automobile or paying appvellee any amount,Stegmeyer,on the 17th
day of September,1921 filed the release for record.. These facts
were testified to by both appellee and Stegmeyer. J+ is not the
contention of appellant that these facts are not shown, but that
they do not amount to fraud. In our opinion these statements by
Stegmeyer amount to fraud in law. As a general principal a
release or discharge of a mortgage obtained through fraud will,
as between the parties be held inoperative.. {Henschel v.Mamero,H
120 111.660.)
| In our former opinion we held that the contract note
signed by Stegmeyer purporting to pledge certain automobiles to
the ®eber Implement and Automobile Company as security for in-
debtedness owing by him to appellant,was invalid because not
acknowledged or filed for record. Apvellant therefore acquired |
no lien against this automobile in question by virtue thereof,
and in our opinion the trial court properly held the release in
question to be void as against appellee. Appellant further
cOntends: that even though the said contract note was void as a
chattel mortgage it amounted to a conditional sale; that the title
to the car in question was in the Weber Implement Gnd Auto-
mobile Company,and therefore the chattel mortgage to appellee
was not a prior lien thereon. It is not clearly proved that this
automobile was originally included among those named in the
contract note but even if it was,in our opinion, the giving of
‘a
sae movt sfidowotte ant sano for hIvow ee! feaqe ane fad ome
hee edusexe of selleods hadpeuper ent Send” ; egagdtor “aid to ne, <
es! fonds Sse tnote royenged? tend -eeneler dove mid of ‘roviteb
~orditd pontléo dria ons ond ered bre af idomodus ald io “ee ogelb ab
wn es Sid oct Siivies saad tars af Leqqh od ‘ort
-oisre off fis b Lowe rayemgode dedd wiivelfod brs, actoitédnonet .
bare bedvoene ‘eet isoce, mid od +ayo ‘pbeesotg old odd bila oridiee 4
end. grilles tvodtiw dard Suet toyonmed? og easier and betevifeb _
aavl edd ao Foyonaede Jowoms yas seffeage: “ar tyeq 10° aroaedae |
atost eeas? 1. brode% ‘xof agns ior edd balti iset. todnstqee “30 Yeb
edd fom et tb” Soyanasde bas selleaga sitod yt od ‘poft Eodad otek | c
joel? dud nwore dort ots atont csedt dadd “toa! foqge to wo tdtaddon 4
yi atnomatets atest notn Etro “0 fl .buav? od ¢nuome Jon Ob yedt
# teotonive Peron pet .wef nt hoert ‘od Sossome ‘royemsese
iftw buert Hauora? heat! inido exendros £ to gyro tb 10 aie.
SS. meme! v fedtoerst evi geregoni plod ed pw.) anid néewded ‘as
na oad fff: ost
sian Sonn Saba bee “vada bled-ew sofwigo temrot-wo ab) "5
o¢ eefidomodas sisttes égbelq of snidrogtug “reyemged? yd beagte
~ti Tot yditose ex -Yanqmod efidomodué dae Jnémetqul vede® etd
‘gon seusosd bifewrt ea@.énefleage of mid yd aitwo eeénbeddeb
“bevinpos etotersdt daslfeqqA .brocet tot balit to begbelwoados
stootsdd oudtiv id noideoup at efidoncdaa sidd deatege neil oa
ai oneofet odd biad vfisqorg dios [sty odd aoiniqo “oo RE bas
reddit tnalieqqd .eoffeqqa dentsas és bow od oF ‘noisestp
© ae biov esw eden doeténos bise edd dguodd neve Jad ebnedaBo
efdid ant teadd [else [snort tbaoo #0)’ hedntoms tf egegitom: ‘Teddandis
‘sod4 “bo® tnemefanl redel ot nit enw doiteaup mit Yao edd of
aslfeqqs of eusydtom Todterls ott evotetedd bax. yieqmod ef flom
aint sect hevera Ylyesfo tow et PL’ mootedd weil tei @ tom enw
etd at heres eeods ‘atome bebufoat 1 Werdbieditd efw sfidomodus
to soivig evd.noiniqo tuo ni.esw ti TL deve dud eton JoBrsmoa
-~get oBond
seatie J
eye. A ee
ace .
this note by Stegneyer to appellant can in no event,be a condi-
ional sale to appellant for She reason that the evidence shows
this note was not given to apnellant to secure the purchase
g
a parties as a conditional sale. Appellant also argues that the
4 decree is excessive in its finding of the market value of the car
4 in question. The finding of the market value of the car mss
based upon the testimony of appellee and Stegmeyer, who, while
4 they did not qualify very clearly as experts on such values,
appear to have been advised to the actual yalue of this car.
We think their testimony was properly admitted and was
sufficient to sustain the finding of the court as to the value
fof the car in queation. In our opizion the proof supyorts the
report of the special master in chancery and the decree of the
courtswhich should be and accordingly is affirmed.
iffirmed.
%
Ms
-4.
pas Faas 5 ah Eo sie
oo
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oa
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at Mae ae oe &
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ot SRE ay
beonsvbe ine! feces fio tele _Xesrom 701 nevis ew ‘dud. 1h odd to eo ing
¢ aN eh bs tres Doge
eid yd bebnodni tev on eew ‘nointgo wo at hae reyomged? od
hig Bea Pd Gr a eee
edt edd eaugte cela dneffeqcd oie Lanois ibvos 4 pe bide Fe ‘ah.
te9. art to euler todtam ait. to gt bat. efi ni ovteeooxe ei mt
ses kaa a & rey wy,
GBH THD ond to eu lay deat ond to geibait eat 10 idee soup
es RE iy 2aars
el idw ore vrovomget 2 brie sellengs to yromivaas orld ogy —
fan
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ees wee
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ae “aat “Ean A
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Hides = ears “Sates ms] it Sah
silt adrooque Toorg » ould noivigo wo al 0 ideaup ne hace ond, 0
peter
od? to ser90h oats nee Uesoaside, neg bind Isivege odd to i780
SO Fan Re iat: ea
bemrt't’ te ef Usribrosos bce: ed buona selena
seo ca
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Sepik eat gee) Beer are BOT ea ore Lac fred eeages
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&
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sca he Pe See Meas a ite a eee ae :
vee ART agar oe bE ae ae
2 ar See ROLE Wa Vitara Pe saw oy Ptgueeiee”
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io ard
Term No.31. Agenda No.23.
APPELLATE COURT, FOUPTH DISTRICT.
OCTOBER TERM, A.D.1926,
ALBERT KELL,
) | - & ane
Appellee So Tb
v. a aay
é € pe ny rig
) Appeal from MARION y eo a
THOMAS J.ARNSTRONG SYLVESTER C. Wop dg toes
“Ee? Ma 4. :
GARRISON,firm of ARYSTRONG & rane J wd
One Ap. ‘
GARPISON, meee
Appellants. ) ner
Opinion by Higbee, J.
C
x
---9N0--e
Albert Kéll,aprellee, brought suit against Thomas J.Armstrong
and Sylvester C.Garrison,vartners,doing business under the name of
Arnstrong & Garrison,apnellants,to recover damages for the breach
Be Reaneecn which appellee claims he made with one Frank Schwartz
as agent of appellant for the purchase by apvellant of apnellee's
erop of pears in the year 1925. Upon a trial before a jury
appellee recovered a verdict for $140.00. A motion for new trial
as overruled and, this appeal the annellants seek to reverse
the judgment entereé on that verdict.
Qn the trial appellee testified,in substance, that in 1924
5 he sold his pears to appellants through Frank Schwartz as their
a agent; that in that year he did not talk to anyone except Schwartz
and his pears were received by apvellants loader,"'r.Keynodds. He
was permitted over objection of appellants to go into detail S
* as to the 1924 transaction which was in substance that the pears
were sold to appellant$through Schwartz and were paid for by
appellants. He also testified that in 1925 he had numerous coyver-
5 sations with Schwartz ,in which Schwartz it ietetane: told him
a not to sell his pears until he “got our prices” and that Schwartz
aid "Armstrong &% Garrison treated you good last year,let them
have the pears this year for they will do as well this year as any
bel
o2S.04% sires ate fF. 0% mreT
TOLFTEEC WPRUOY TAO) -RPALITGIA- 52 ci otem eked
OSS I shd MART ATAOTOO ae - Pash : :- ta, 1a aati s a
z 7 Race ‘ngage |
Pps, oe é ; % Sri ay
YW ee E eefieogh 4
ok AN a ( Ke cs ee) aes Py
ea ee ; ep Mg a
\ HOTA mort Leaage
= my WS eo Atereavaye, MORTEM L ‘eas?
so" A 1h a
+ rn Fives 3 soH au lo ari? NOBEAAAD
Y\ coke? st Saha ee
yale 2 oe tiaag
<ayo* : ee, (- .etnel Seach x as ast a at Fm em ed
~ L,eedaill a] noite ; oe
- » a aK @ —— ak eon Cae
air L eemont? taniaga Jive Jdhguord,9e [facan, Loh eel
to aman en dt.aebass esonieud apiob, PTOND TAG. noeirsi.2 Ear
doserd eft .rot sagem “evooet of, edna! Loge novirsnd £ goord amté
sérewio® nett eno ddiw ebsm ed -emtelo sel leqqs oisie doaténoa Jo
e’seflfecar to dnelisaqe yd sasdo tug orld 10% soel longa. To jneye i
‘ym & eroted Sein, a nog .d82f, THEY oils ai eteeq, Yo ¢ Goro.
fetvd wen tor noiton A 700. OhI8 tot ‘Jotbrey Bg * gorovooet | Heggs o
serover od fear etaslfecas ond Iroaqs eidd, 8 bolurreve Sc ee
totbrev dent £0 Rit tromsbivt, arid
ASOL wt dadd sonsdedue at, befttiseed eel feqqs isiis end ad. .
viodt ee sdtewiod set’ siguordd edna feqqs os atseg eid ‘bloe on
ndvawiod dqenxa enoyns od Aled dom bib od THEY secs ok tad ; ; Ines
of -abBomyel 1, rebsol ejnsileqas xd beviecer eTew etseq eid. bos
2 ftateb ofat og ot etmelfeqae to no itosido tev bodd iwreg eeu
areeq sci dard sonpdedoe af eew do kee noitosenerd Sef arid of: be ne
yi tol bisa oT0% bore sdrewnoe iguoisd taal feos od bloe eter
<rsygoo ayotomun bad on aSOf mi sand bettitess onls oH einaliegas —
mid blot sorsjedue ni sdtawiod dotiw ni, sd rawriog Aid bw acoidee :
sitewio® dant bas “esoina wo tog" ed Lidny B1#9q eid [fee ot Son
rodt Jel teey inal boos OY bedsors woeitted # spotdemh" bine
wie es taey eidd [few es ob Fliw youd to? iasy eind eteeq edd eved |
one else;" Ahat this conversation in substance was had several
times.. He also testified that following this conversation he took
a portion of the early variety of his pears to anvellants at
Alma and was paid for them,but that appellants refused to accest
and pay for his other pears. He was also further pemmitted to
testify that after appellantSrefused’ to accept his vears he went to
Schwartz and asked Schwartz if he was authorized to buy pears
for appellants,and that Schwartz said he certainly was. Appelleeds
brother testified that he heard the conversation between appellee
amd &chwartz prior to the tine the 1925 crop was harvested in }
which Schwartz urged appellee to let appellantShave his nears.
This was the only proof tending to show that Schwartz was the
agent of appellant $
In behalf of appellants Schwartz denied that he bought any
pears in 1924 from apnellee for appellants. He also denied that he
ever told appellee in 1925 that he was buying vears for apvellants
and denied having any conversation with apvellee relative to
buying his pears. Poth of apvellants denied that Schwartz had any
authority to purchase vears for them. Other employes of appellant w
who: were looking after the loading oy pears’ appellants had pur-
chased ,testified that while some of appellee's vears were received
others were rejected af the car because they did not come up to
the standard required. It was incuwnbdent upon apvellee to prove
that Schwartz was authorized to purchase pears as the agent of
appellants. The doctrine that the statements of Achwartz himself
were not competent to prove his agency is so well’ established that
it is unnecessary to cite authorities eo holding.. It is sufficient
; to say that under a well establisned rule of law,it was error
for the court to permit appellee to testify to théstatements of
Schwartz that he was appellant's agent. Even if these statements
were competent,in our opinion,the vreponderance of evidence does
Ss not show that Schwartz was the agent of appellants. The evidence
ae
2 iG: exo?
fevsver bss eaw sonstedue mi no idserevnoo. eins A S ite ero :
foot of acitdastsvnoo etdd snivol Tod ded? be ft idead oefa eH -aeikid a
te ens i fecgs of atesq eid to ytertey yire6 oft to ao itrog s
Segoos od beeuton etosifoqce tate ted medt rot bisa any bre amis
od bedtinwed. teddvut cafe eaw of . erasq! Yeddo etd ro? x80, bre 7
od dew ef atreg. eid. dgeoo8 od beauterdinal legge istte dene yiidesd .
-BIRED . yu oe besttoddus: esw ad Ii ‘sdrawdo® 83a bre sda $08
adssfifleogh eb. yinisétes of bise sdtewdod dertd bnavednst regge ey
seffeccs moowlsd notdteetevmoo ond breed oe decd boitidedd xeddord :
ak bedeerrad sew goto GSel: one or id ead od rolt¢: sdvewio8. bas |
saiso0 ein evedcinel feaqa sel ‘od eslfeqqs begiy sdiewiod ‘Hoisw
ad: Baw Rd TSwAOe dedd wore 69 sathret tootq yino end enw etaT |
eee is 2tneLfeqas: to ee
Ye deiguod ed tedd peineb: sdrawloe edna! [feqgs ’ to ‘Meried oT! Gea:
ar tad boineb on le of -sinal Leas 10% eal foors mort ASeL ae ;
veda! fears tot arse atid eae on tests ser at ‘eof Tongs bios save °
ot ovitefet sel fords Hitt iw no iteersvn0d vas given beined | the
Yate bail ndrewrio® dent beine’ edna l fears to Mod + Btseq_ eid wid is
w das! leges. 20 eo yo laine rod0 mand ot 1890 sendotuq: od wbresgus S
-tsa bar edasl Leags BXROT sje gaibsol ould Tod te gritoo! Tee
hevisoey stew emsea e ‘se! Teqge To emoa elise ders bottidasd bean sed +
od gu emeo ton vies Nene eausoed THD old hs besooter otow eteiiso
svor? o¢ sel feaga nogu dnodaxont asw $1 «bet ivpet brabrede erg A
to dreams ond as BTHOg eeantoteg of bos iorldus ew -sdtenilo® todd
Ag et, ae
tleemia ndreusoe Yo adnomedede, ‘edd send enitdoob oat -edneffoqgs |
sent bade i fda? ‘ae ‘Llew oe at Yorregs eid evorg od iaodeqnoo tom exew
dootoitive at dT -gutblod OB. obit troridus etio ot Wiseesoenty ie |
ToTTe Bew Stews ‘to efor hoilekidedee Tfew & rebay todd yee od %
Yoddnem sodadepdd od ylideot ot so! Leage 5 tereq ot woo oa .
_ adoometade ogerdd Li nove . dogs at inal Legge Baw od es ; 7
Wr Ra ‘x oa
naoh sonebive to sonetehnogere od stein igo 100 nt, .$nae.egmoo etew ‘
goreb ive oft ena Tonga to nena orig Bow w ndramio? ee son :
peal" Sip are Son BO eR ei ceed Steet eS SEES :
ae A i oll
See
wo
introduced on the part of appellants shows that while they did re-
ceive some of appellees pears ag’ the car the others were rejected
because they did not come up to tne standard required... Avvellants
claim that certain instructions given in behalf of arvellee were
erroneous in that they assumed as true certain facts which should
have been left to the determination of the jury. In our opinion,
with the exception of the Sth instruction, the criticism made is
not well founded. That instruction in substance was that if the
jury believed from the preponderance of the evidence anpellants
entered into a contract with apnellee agreeing to purchase
appellee's 1925 crop at the price named,unon the same terms cone
cerning the size and condition of the vears as had governed in
the purchase of the preceding years crop that appellee
held his pear crop until notified by appellants and thereupon
made arrangements to deliver his crop to gout a ok the car,
ard if the jury further believed from a preponderance of the evi-
dehce that Seeks Biecizadvons load of the nears and then
refused to receive any more,and the jury further believed that
appellee was then and there ready,willing and able to deliver
the remainder of his pears subject to the contract but that
appellants refused to receive them,then appellants would be liable
for their non-performance .
This instruction it seems to us does assume that avp-
ellants had purchased appellee's pear crop in vreceding years,
which was a material fact to be left to the jury. It is also erron_
eous for the reason that it omits the element that appellee's
pears refused by appellant ze bo be of the standard re-
quired by the contract,Before appellants would be liable for re-
. fusing to receive them,even though the contract as claimed by
appellees had been made. This was a very material point in the
trial of this case,and being so material it should have heen
a
-ot fib yodd elidw dadé ewole edaaliegaa to stag, edd m0 Seoubordn ni :
beatoet sr erew avanto end 189. oid he atseg eeelleqqe to 908 vies
ednelleqad ..herigpet bisbasde edd od er emeo don bib yest saussed
stew selfieqar to Tfisded ai cevig snoidountani mindres dad nisio
bivode sotdw adosi ateires euis se beryess yond Jedd at ‘evoonorts
Neintigo wwe ml |.yue, add To moidsdiameseb edd of diel need eved
ei-ebam matoltize end moitomient Ade odd Lo sotsgenxs ead sidiw |
et 1i dedd ese eonatedue ak noidouttemt dsdT .bebovol Liew Joa
ainelleags esonebive edd. to sonerebrogetq snd mort. bevelled wi
esedotuq of satestge sel leqqs déiw tosiigoo fr odat pevedns
~109 emres sree sid. moqu,bemsa soiire act. ts goo SSel steel feage
at heorevog. bed en etaeg edd to. noidibnoo bas-esia srs gainteo
selfeqqe tadt qoto eteey gnibeserq » add to penro mg ont
nogueten? bas einslloags yd beilicon, di day qoro THOg eid bled
Teo and da. iisase o¢ qoxo eid sevileb og ednamegner ts obem
-ive ent to somevebaogerd 6 mort boveiied tedizel vist ont. TE ine
send Orn eteeq edt to beol ono bevisoey pene dant entiob
dtd deveiled teddy el yw edd bas.etom ys eyieost od booier
tovilfo’ ot side baa ynillin, vbset eredd bas mend Baw 9s {feage
tedd Jad Josttacs add of doefdue atseg ain. to “‘rebrisnet ead
sidsif ed diuow adnsllangs meld madd evisost of beautey | adanLleqge
| * gore to treq-m08 tiedt rot
-car tedd emuass gech ey ot emeee ti no itoutdeni Beige eo
,81KSY gnibesetg ai goto rseq.e'e9lleqgs beesdorug bed adnate
ovis oeis-ei ti .yroit edd of diel ed.od dost {sixedsm s esw Adis
e'eefleqas iadt inemefe.ond ad im af ded mgaset, ent ot taba
=o1 brshaete ent: toed, od), mie < ros dnelleqge yd besutey. aTsoq
-or tot afdeil.ed biuow: adaal Looms. sroled ,Jositno9 end. i, botiup
yd. bent alo er Soars m9 edd spond neve mot. evioost of, arian’
edd «i dateq Isitedam yisy. 8 Baw eid - obam peed bad eeselleqqa |
need eves biuode ti.laivedam o8 gnied baa,eepo eidd to leit
SRE 8 OF RIE OG Ee ee a
luded in this instruction which in effect is a mandatory
tr uction..
For the reasons herein given this judgzent must be
rsed and the cause remanded...
Reversed and Remanded,
> a Die Si
Bese AE ae 2 Hie ae ous
Bick ie eee iS i ws
sai sieseae note
pale 7 OS 2
er oe eee GES + te. Scineten: bia
‘gal daage batt gore ANE SB, “yi Knee otis
Reem. Bets EPIL ERS. AE teltisnn Ji dw.
Wea s tt kote eke souateb
ne Kee ap naa coe) Dave back atta, &
feats oe pared: Hid 1 Deed: ante Bartacey, “Wate
se Cavan ts £ Tetke, 3 EC RO PAP. oFee:, ye:
Beh Sy Ch ag. pits ae zat eee eral hie
a ee a son a oan
1» RED Seen ie Sidi oie eG
Term No.3o. Agenda No.29.
7 APPELLATE COURT, FCURTH DISTRICT.
OCTOBER TERH,A.D.1926.
\
}
CLAUDE WELCH,a Minor, by :
C.W.WHItE his next friend, Q9AAT A, 664
ees
Appelleé )
Ve . Appeal from City Court
PENNSYLBANIA RAILROAD CO“e ‘ EAST STELOUIS.
PARY ’ bs / / } ti >
Anvelleat ) es ev ig)
F; te : oe Ly
: Nal aie ae 2 927
Opinion by Higbee. “Sino
a) 2 SHEE bot :
=neehax-- re
Appellee Claude Welche,a minor, by C.W.White,his next friend,
filed a suit in trespass on the case against Pennsylwanie Railroad
Company, appellant,in the city court of Hast St.Louis, ]1linois,to
recover damages on account of tne destructkon of his automobile
alleged to have occurred beéause of the negligence of apnellant's
crossing watchman..
The accident in question occurred at a point where a pub-
lic road known as Kings Highway running approximately north and
south,crosses appellant's railroad tracks at right angles. At
the crossing in question the Baltimore and Chio railroad has two
tracks and the appellant, company eleven.. The tracks of the
Baltimore and Ohio Conpany are south of those of the apvellant, the
north rail of the Baltimore &% Ohio tracks,being about 127 feet
south of the south rail of appellant's tracks. Appellant's south
track is known as its main east bound track and the next track
north as its main west bound track.. The other nine tracks just
north of these two age switch tracks. The Baltimore % Ohio tracks
E aré some ten or twelve feet higher than the highway to the south
thereof. and two feet higher,as it appears fron the evidence, than
appellant's tracks,so that ‘there is a decline from the Paltimore &
‘
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Ohio tracks north to appellant's tracks of about two fect. Appellee
testified that about 9 o'clock on the evening of December 4,1925
he,with a Miss Frances Huskamp,in his Cobe automobile,came from
the south on Kingshighway and after reaching the top of the Bal-
timore & Ohio. tracks,started down the incline to appellants tracks;
that at the time he crossed the Baltimore and Ohio tracks he
was,going about three miles per hour; that his brakes were good,
and he could ha ve stopped within one foot.. Appellant maintains
> watchman at this crossing who has a building,referred to as the
watchman's shanty, just South of its south track and on the west
side of the highway. Appellee testified,as he came over the F.% 0.
tracks: appellant's watchman was standing opposite his shanty
wating a pole with a paper on it which he understood to be 4 sig-
nal to stop and that he did so; that at that time s string of cars
was moving across the highway on one of apnellant's tracks; that
there was sufficient space between apnellant's tracks and the Bal-
timore and Ohio tracks to the south but he was about a foot from
appellant's tracks when he stovved his car; that it was fifteen
or twenty feet from the north Baltimore and Ohio track to anvellant’s
wy
south track; the proof nowever este ee: by actual m rement
that distance is 2 little more than 127 ee when( fhe string
of cars'cleared the highway the watchnan motioned for him to come
ahead but that his engine had died; that for about ten minutes
he attempted to start the car with his starter,but finally ran down
his battery; that during this time the watchman asked him what
his trouble was and he told him his engine had stalled; that the
watchman then left and he did not see him until’ after the accident.
Apvellee further testified that after he had exhausted his
battery he attempted to start his engine by cranking the car,,.
but was unable to do so; that he then stood by the side of the car
talking to his friend for about fifteen minutes and decided to try
to start his car by pushing it on down the incline; that his
-2--
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gedunim ned duoda vot dard sbetb ‘bad amigo ‘eid ‘dedd’ dad beers.
nwob. net yilenit dud edtsde eid ddiw 159, hake etete od “badqmedts: en
dedw min bedes memiote ond emis eld gatrw6 ded tended ‘ats .
ond Jedd ,bellace bar en igde ain mid biod en bas ’eaw eidvow” eid
inshiose eld teHts Lidew mit sea tow bib ed baw Wher neds mamlodew
"gid hodeurrixs Sarl on tedte tetd boTitdeed reWdwY eeffeqga
eo add aitiners Ww ent myo. eid grade ot betotedde: of yraddad
‘20 add to ebia ons va boodge ned? en dant’ poe” ob of efdent aw” dad tan
wrt of hebioeb bas eadarcte need tht duodey so% breit? ‘eld of gia ied :
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friend then took the driver's seat on the left hand side,or west
side of the car,and that he went to the rear to push it; that
just as he got to the rearf#f of the car,his car was struck by
appellant's fast mail train coming ffon the west. “iss Huskamp
corroborated appellee and testified that when he was cranking
the car ne was compelled to stand between the rails of appellant's
track; that as appellee started to the rear of the car she moved
from the right hand side over to the driver's seat on the left
hand side so as to ste@r the car while it was being pusned by
appellee; that just as she got in the driver's seat she saw
appellant's train approaching from the west and that she then
moved over to the east side of the car and jumped out; that the
next thing she knew the car was struck by the train and she was
standing by the side of apnellee. Appellant's watchman testified
that he remembered signalling appellee to stop; that he was then
standing in front of ‘his shanty on the west side of the highway;
that he signalled when appellee 3 car came over the Baltimore and
Ohio tracks and continued to signal until he stopped; that when
appellee stopped the front of his automobile was:ten or twelve
feet south of appellant's tracks; that he signalled apnellee to
atop because of the freight train that was coming from the owest.
Tae watchman further testified that as soon as appellee stopped
he stepped back over to the east side of the shanty to get out of
the wind; that after the freight cars had passed he walked down
to the main line to see if any other cars were approaching, and
uvon finding they were not, gave apvellee the signal to go ahead;
that appellee was: unable to start his automobile and got out am
raised the hood of the machine and at this time there were no
lights burning on the car; that he then went north over some of
F) the other tracks and some ten or fifteen minutes later returned
to the main lines finding appellee still there trying to start
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his automobile; that he heard the passenger train whistle to the
west while he was standing xuuxs between the tro south main tracks
and began to wave his red lantern across the highway; that at this
time appellee's automobile was in the sane position as before,
about twnor twenve feet south of avrellant's south track; that he
then saw the car was being pushed up on the crossing anc called to
anvellee,who stuck his head out from behind the machine and
looked around,that the automobile wag: then struck by aprellant's
train..
The testimony of the watchman was corroborated by 2.C Craig,
a patrolman for appellant ,who testified that he was about 80
feet from where the accident happened, seven tracks away to the
north:and that while from where he stood he could not tell ex-
actly where the automobile had stppédd,it appeared to him to be
from ten or twelve feet south of appellant's south track; that
he saw appellee pushing the car and it appeared to be moving
toward the north although he could not tell whether the autono-
bile was on the crossing or not.. This witness further testified
that he later had a conversation with appellee in which he told
witness he was trying to start the car by pushing it down the
incline toward $he arvellant’s txaek main line track,when the
accident havpened. Appellant's engineer of the train which struck
aprellee's automobile testified, that as he aporoached and whistled
for the crossing and when about two or three nundred feet from it
he saw what appeared to be an automobile moving on to the crossing
and that it moved out until the windshield was even with the
south rail and then stopped; thatt he applied the emergency brakes
which were in working order, but was unable to avoid the colli-
sion as t train was travelling at that time about 35 miles an
hour and could not be stopped in less than 600 feet. His state-
ment concerning the application of thé brakes:was eorroborated
by other members of the train crew.after the train was stopped
ay
edt od efisidw miatd Tego as and pr sen ei! dedt ; oLidomedus eid j
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exostt olen aduoe owt end needed wrmt gnibrese aew ‘on ofide teow “4
eid de oeid jyewlgin odd eacios ateine! bet eis ‘evs ot aged. be 4
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end of yawe edoeit nevee, beregqseri dvebioor: ong oxoria mort ‘fast
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6d o3 min ot betaeccr 31, basqqte bad elidonosas atid ‘onede ‘\idop
dett yrorrt Ateoe a! tne Leqqs to Assos feat oviows ‘50: red mort
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gerbvor. edt ot: benseqae dt bose 189 edd ft teense sellegas wer ‘od
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ond owob di iteug yd ne9 ott dvete. of ried eeu od ‘enont iw |
end. cen, ford anit chem teaxt a! inst feaae ete brewed onion
es fokiy aiatd onld.-to 190n ine ‘ettnaf Leqqh -beneagar! sneh toon
befieicw ore bedorotaa& of es deels (bottitess elidorotua s' esl Teas
di mot? Jeet berband estat ro ond twos aedw brie grieeore odd 02
aiieeota ant of mo anivem elidémotus ne of od berseqas: dectw wa od
ent doe reve ssw bleinabriw -ontd Lideias duo bevom $f dedd os
hes AE panos
setesd yonesreme aid bs iiggs eff ddesé beqgode: aod bas thet déwoe
ee ryt
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ee (or
as eefim Ge suede amid. dada te pit iovert Baw aietd ed ea noi
a hearts ae
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eis 27GB 4 oes 8 63
baterodoriey ssweedayd aad to nottnoilqae ond ‘gainreoroo | ‘dent
5 ot Oa. ae y
haqqode esaw miard old 799 th.wer9 nievd ond to: eredmen: Tadd 0:
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‘sone of the crew went back to the scens of the accident. Appellant's
cond#etor testifiedtnat he there had a conversation with apnellee
in which apoellee told him nis car stopped between the Eh ltimore
and Chio and appellant's tracks and that he jin attempting to push
it over the track, pushed it in front of the train. This is sub-
stantially all the testiaeny in the record as to what actually
happened at the time of the accident,and we have set it forth at
gome langth, because no complaint is made in appellant's argument
ofthe ruling of the court in regard to the evidence or instructions
and the arguments on both sides are almost wholly devoted to a
discussion of the question whether the verdict of the jury was
warranted by the proof in the case.
In our opinion this evidence satisfactorily shows that
anpellee's car vas in a safe position when the watehman left hom.
It was no part of the watchnan's duty to see that appellee did not
afterwards get his automobile into a cangerous position. (Fuller v.
P.%.B.Union Ry.Co.,164 I11.App.385). It is charged in two counts
of the declaration that appellant's watchman ordered appellee
to stop and come to a standstill on the railroad track and cross-
ing. There is no proof whatever to sustain this avernent and
appellee's own testimony is that he stopoed within one foot of the
tracks. The preponderance of the evidence does not show that
the watchman was guilty of any negligence in stopping appellee,or
tnat he failed in the performance of any duty he or aovellant owed
to appellee. We are also of opinion that the greater weight of
the evidence showed that appellee was athemoting to start his car
by pushing it down and onte amellantts tracks’ when the accident
happened. Wot only does the testimony of appellant's witnesses
tend to show this fact,but we are of the opinion the circumstances ,
as testified to by appellee and his companion“ aiso to this
effect. This would seem to us under the circumstances of this
case,as disclosed by the record,to plainly show contributory
<5.
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wml d3of nemdedes ond -nody aoidiaog-etes!aoai. mw. t#9 8’ a6 fleqga a
ton bih eeffedca dadt eas of ydub a aamdodew-end. to.dtaq. oft ase dT
.¥ tel fy} inetd fecg -epovagnad +e oduielidemodus aid doy ehrewred ia
adaveo owt ni hegiads ef dl ..(CREaggha! {1 28Le09.ei- cote Gehe se
tal isege ferebre cumiodex, 2 treileqqe dead, aoidetfosb, ed. to A
~ga01n bus forys¢ hbeovfiat odd’ go Lfidebasde.s of emoe, bas qode,. od :
brs dnarrsys sidd oledesse od tevedadw: loorgon es. e790, uae
ald To Joot ego winiiw beqqode os) dadd et Yromiseed nwoe "col feags
gadd woe: don aeob somebive edd. to soner ebaog ergo? eieets
to selleuges guiggeds mi sonejifgom yur te: ylivg: ase asnrioden.odd
bewe trelfeqon +o ac yiub yom lo songmretseq. ond. HL, heLivl on dade
to tngher vhisew, edd Jett: netmiao, to, oe fr ore oF, . sel fogge 0d s
Te9 etd donde od gaidqmetton exw salfecog ted, bewora. oonebive odd
deeb iosso-erd cede edorts: eldantleqqs. edro: ben apwo bb Baideag x! e
eengent iw e' inal lemag To yromisent ele. -eeob xlno, Jol bene
Boone demori S ond oi igo odd Te. Tn ow dud. joel silt: wore oF ‘aed -
>: pitied os iF BS ro ieiaqmoo ‘eis: be eolfeqgs NG of beitidesd en ie
etd lo esonatemuorts end) mabe. 689 of: meee bivew aisl,...Joedie ;
nan bck. sacl fp Tents ois br ons: eid seal an aee, i
_ ws es
3
a
e
ae
ligence on the part of appellee.
We conclude that the preponderance of the evidence in
is ease did not support tne ver¢ict for apvellee and the judgement |
“e ‘ bAg =f
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i, 33 Sa a
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ia
SRS 2 SE RCIANE DE: OEE SO aie Biba AR Ot 5 AR tae
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Lass ae
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me Se Eyes 3 Arenda No.14.
APPELLATE COURT , FOURTH DISTPICT,
OCTOBER TERM A.D. 1926.
_—OHBNRY PINKSTAFF°et al, ) 2, Re
PA
ne Appellees) fe,
v. ) Appeal from LAWRENCE, &~) // 1)
cf / ‘ ;
JAMES PINKSTAFF) ) ke Ra [Sp |
\ a ee é
Appellant. ) Wy é 9p ——
fe De, hy ae pe]
Op Ok vy Pes re
Weise NN,
Opinion by Higbee, J. "Er afte”
Mo; t
@--+00---
This is an action in assumpsit brought by Henry Pinkstaff and
his wife,Ella Pinkstaff ,appellee$ against James Pinkstaff,avpell-
ant. On trial before a jury a verdict was returned in favor of
appelleeSin the sum of $329.34,and this apoeal was nerfected to
reverse the judgment entered on that verdict.. :
The evidence shows that appel lee, Henry Pinkstaff and apv-
ellant James Pinkstaff are sons of Anna Pinkstaff,cdeceased,the widow
of “artin V.Pinkstaff who died about 1904,leaving said Henry
Pinkstaff and James Pinkstaff,together with Charles: Pinks taff
and Susan Wampler as his only children. This suit was brought to
recover for the attention and care given said Anna Pinkstaff by
appellees,under an alleged contract claimed to have been made on
February 3,1922 between appellees,appellant and Charles Pinkstaff.
On the trial appellees: testified that Anna Pinkstaff had made her
ome with them in the year 1919 and they had cared for her until
her death on Degember 3,1922.. Appellee, Henry Pinkstaff, testified
that on february 3,1922 ,his brothers Charles and James: came to
his home at his request,and that he and his wife then told his
‘brothers: that they would have to pay for keeping and caring for
the mother; that appellant wanted to know what the “price was";
that witness told him it would be ten dollars a week when she was
D)
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=o BR Hatesinid yrrel , se! feaqe dads aworle sone ive eit ea
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ad sd esr £9 eefiedd dtiw tedtegod, Patadn 19 eemel bets ted edn ed S
ot ddauornd aw tive sinT .metbLido vino eid as relamall neene bas
| yd Thetedn co eh tee revig sts9 hae noidnedds ond tot tsvoDeT
no ehem weed eyed ot bemialo Jonr#n09 begel fs rR yobau eee! fers
tisdednit selva) bre dank Tacurn. eeelloaqs neous od SSOLE TAUT Sell
ten ober eel Vadednid secerh todd bei? ideas: esol foags. [airs eid 0
Lite red sot berea bad yodt bers Ofer “TSBY exid at mest Adie emo
het tidead Viedowtnid ytaell , oe! Leama oer, & +rodmenell fete ddsob red
od sao eemal bee eolrsdd arositord eid, sser VE Prawrdel no Gadd ;
eid blot medd otiw eis his ed Jedd bas. Jeoupet aid de “enon Bid
tot af Exes bres artigos 10% (Aq od 9 vad binow ‘yond sedd eranitord
"gem 89 gra" edd deodw wor ot bednaw dnslleggs todd. 4 tedcom odd “¢
enw ore ironies jeca a axeliok asd ad bidet di midi blot esent in tet
up and around the house and twenty five dollars when she was down
in bed;. that appellant said he could not keep her and that he
would pay his part; that apnellant further said if they would go
ahead and keep her the rest of the time she lived they would pay
appellees what was then due them "back pay and all"; that they
counted up the time and found the mother had then been with
appellees thirty two (32) months and appellant said "all right";
that there were four children then living and appellant said he
would pay one-fourth part of the amount there agreed uvon to be
charged by appellees;: that it was agreed by those present that
each child should pay one-fourth said charge® but that Susan
Wampler was not present to join in the agreement.. Austin Pinkstaff,
a gon of appellees testified that he was present and heard the
agreement made and that it was as stated by his father. It appears
that Charles Pinkstaff later signed a written comtract to pay his
share but the evidence shows that appellant on at least two
occasions thereafter refused to sign such 4 written contract,
stating that he had not agreed thereto.. This suit was brought
against appellant to recover on the alleged verbal contract.
Appellant denied that such an agreement had been made at all’ and
in this was to a large exteat,corroborated by his brother, Charles.
Practically all of apvellant's argument is devoted to
the contention that the evidence does not show the agreement was
entered into,and that appellee's testimony does not show any
consideration for such a contract,so far as pay for the 32 weeks
prior to the alleged making of the contract,is concerned. The
evidence as to whether or not this agreement was entered into is
directly contradictory,and it was within the peculiar vrévince
of the jury to decide what witnesses they were going to believe.
They accepted the testimony of appelleeSand_his—witnesses. The
trial judge,wmm who saw and heard the witnesses testify,by
overruling Ytaaté on for new trial,was of the opinion the verdict Hath
ae
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yadd dadt ; "Lis ons yaq siosd*. mend sub nedd esw tasw eee! locas
adiw meed wedd bed reidom end bavet bas omtd orid qu bedavoo
"dogo fle" “hide gamlleqas bre eridmom (S83) owd yiridd eee ffeqqe
ad biee deefleogs bre gaivil nedé mevblido wot ever arend dei
ed oF moor heerge etadd dnvome adt to drag déwot-eso yeq bivow
sadd dnspete enodd yd bsexgn eaw ti dent -:eeelleqqa yd. hasrario
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edd breed os dnoeatg sew off denis baitisess, eos legge. to foe 6
erseqqs J wtodds? eis yd be¢ete es Bsw ae sald bas ebsm ‘SnemesTge
gid ysq o¢ tostdmoo nedtinw # bemgie wabas Yadetnid eeftend Jedd
owt dasef{ ts wo dnalleagqr dads wore eonebive ent ud et sie
tosvinos metiliw © dove mia ot beenter ted tseTadd | ‘2x10 12.8090
dirord gew dive einT .oderasd pootgs ton ‘pad od dad ‘gatdade
.dostinoo [sdtev begel Is edd mo TevooeT od dnat Teqqa Jentage
bed (ie da ebem need bedi dnemestss ns Hove dedd beimeb dnestoags
.eaivsd? yedtord ets vd bedstodottoa, thedxe egisl 5 od esw Bessa
+ bastoveb et dnemugts e'dnelfecce to Ifs Uleottoerd Nae
Baw jremesras ait wotle ton 290h somebive add decd noitnetaos end
yrs wore ton ea0b “yromidgod e'eolteqqs tant bia. odmi betaine
adeew SE ert 10% vey ep ist oB, tosténoo ‘es dove tot noiderebienoo
ef? .bemteosos ef,doetino9 “edd Yo gn bole begelis. edd od “to rrg
ei oink beredne saw dremeetar eidd don ro reddenw of ‘26 sonedive
ancl vero teilsoeg add middiw esw oi bra roto? ber mo yidoerib
.eveiled ot anion eter yeudd soneend iw dadw ‘ebioeb o¢ yw etd to 4
an? saasondinei bar teo! Lore to yoni dees ont ‘betqeoos wat
yd, Yi ideost eeneontiw end braed bas wee “ontw 1 rebut Tsty
wank} Yo 26v8y aft noimigqo oid to aew laird weet tot xo Ed on bbe
; ee
stand. Phawe was proof to warrant this verdict and this court
cannot hold that it is so manifestly against the weight of the
evidence uate is ec ee it,should be reversed.
lft appellee y ‘testimony considered as true,there was a
consideration +o support the agreement to pay for the services
already rendered at the time it is claimed the contract was made,
since he swore that appellant agreed that if appellees would contin
ue to keep and care for the mother until her death he,appal lant ,
would pay his share of the amounts mentioned not only for such
time as she would continue to live,but for the 322 months prior
thereto.
The only other ground urged by appellant in his argument
for a reversal of this judgment is the fact that nine instructions
offered bysappellant and refused by the court should have been
given since they stated the law applicable to the matters of dee
fense. “e does not,however,assist us by indicating wherein the
trial court erred in refusing the instmctions but asks this
court to examine them and "see how important they were to the de-
fendant".. In compliance with this request we have examined these
instructions and have failed to find that the court committed
any error in refusing them that would call fora reversal of
the judgment.
Judgement affirmed.
Nol CG be reprtel
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Term No.b8. ae Agenda. No.1l.
Appellate Court,Fourth District.
October Term, A.D.1926. ~
-<e-909=<6 =
ee ee 3
JENNIE KERINS, a
Appellee.
v. | Apneal from
JAMES R .PRUIT7? and MARTHA G. ST.CLAIR..
PRUITT, his wife, HENSY T.RENSHAW, ce ae ee 2 | ee
Trustee ,ZNRY BERGMAN and THERESA LOUIBE” i Tes Tins
BERGMAN, his wife,and PETER WITTENAUER, ) eae ee Wy
(HENRY BERGMAN and THERESA LOUISE 5a. Fig igs 7
BERGUAN), A i
Appel lants ) ) Tobe JA
Opinion by Higbee,J.
o-<00ecee
This is an appeal by Senry Bergman and Theresa Louise Berge
man from a decree of the circuit court of St.Clair county, ren- i
dered on a bill for foreclosure filed by Jennie Kerins,appellee.
lt appears from the record that on October 8,1918, James
R.Pruitt and “artha G.Pruitt,his wife,executed a mortgage on cere
tain premises in the City of East St.Louis to Henry T.Renshaw,
trustee, securing the payment of a promissory note for $950. This
mortgage was recorded November 14,1918 and shortly thereafter
Renshaw sald the note and mortgage to appellee. No assignvent of
the same was placed upon record, but Kenshaw endorsed the note and
delivered it together with the mortgage,to appellee who has since
that time retained possession thereof. Until April 8,.1920, Renshaw
collected the interest on this mortgage indebtedness,and paid the
same to appellee. On Hiarch 28,1919.the Pruitts by warranty deed
conveyed the premises: covered by this mortgage to avpelads . The
deed provided that it was “subject to mortgage of $950.00".. On
March 23,1922,appellants executed a promissory note to Henry T.
wp aeaecrai’
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“aa% ydnsie a” ais. $2 to doo divstis ond to. serceb. a mort ‘asm
‘Yeolfsqas.enitel atacel yd belit e1ta0fooT01 or “Eid "sg no teieb
Gouiel BIOL rededod no dail bioosy add mvt erdeqge FL” ne) |
res 10 aration s Seduoexs,stiw Bid, saint. 3 adste™ ‘bas ita.
medecal.T. yrnal o¢ sivod.J€: feet to ytid-eddd ai 268.
ein? .0G22 sot eton yroeeimotq-e to Jnemysa edd sp irwo9e .86 rr *; i
vad tested) softy ote bar S{OL, M .redmevol “bebrogst eaw “open :
to dem tena, of -ool Lega, od enetd-tom | bya ato a2 0%
bis eden od¢ beetobse wacieel did brovet aogu paosla 98 ‘etd
sonia ext odw ealleqqs of egegdrom. odd siti reddegod $a: sbeseake ss
wadenol SOL ,8 Lines {idee ostaiit noieeoreos benteder emid Jedd .
and Biaq be peonheddehnt ogeg tt ow. siad 10 deeteini ond: pedoal loo
bash vinsriew yd adtintd odd. CLOF AS forall a: .eelleggs o¢ omse ‘
Awsacs ot egesdrom aids yd betevoo reesimerq ont ‘boyeumod: 5
0 .700.00% to ogsadram od tootdue® eew di dadd.bebivorg | bead :
.T yume og atom yroeeimorg & bedyoexe. ednst feqas SSL .éS. dovell
a Renshaw, trustee, for $1200,due three years after date and at
_ the same time executed a mortgage on these same prehisea to secure
this note to said “enry ?.Renshaw, trustee,which was recorded on
“arch 27,1922. At the time this mortgage was executed Renshaw
told appellants that he could not deliver them the old note and
mortgage that is,tne note ard mortgage = in this suit,un-
til he had had the mortgage released and after thak it was re-
leased he would mail them both the note and mortgage. Appellants
did not see the note or mortgage at that time and as a matter of
fact Renshaw did not have them in his possession,
On #arch ot Honcho filed for record a release of appellee's
vee it Py
mortgage dated March 28,1922. Out of the $1200 provided for by
appellants’ note and mortgage, Renshaw paid them 2270 in cash and
retained the rest in purported payment of appellee's mortgage
indebtedness, but no part of this was ever paid to appellee.
It appears to be agreed by all parties that appellants’ mortgage
for $1200 given by them on #arch 25,1922 is a prior lien to
appellee's mortgage and the trial court having so held that
question is not before this court. On April 14,1922, Renshaw
assigned said 31200 mortgage to Peter Wittenauer. 1+ clearly
appears from the proof that Renshaw's release of appellee's mort-
&%ge was made without her knowledge and was fraudulent. Appellants:
knew of: appellee's mortgage and the deed to them from the Pruitts
was made subject thereto. Appellant Senry Bergman testified
that he was to pay the Pruitts: $2009 for the property;that he
paid $500 in cash,gave the Pruitts a note for 9500 and was to
pay the said $950 note. The payment of appellee's note wags
therefore to be a part of the purchase price paid by annellants
for the premises. Appellee,or her son for her,has always had
possession of the note and mortgage fron the time of their execu-
tion. The proof does not show that appellants knew Renshay vas
~2-
“ds bap egeb Gadhs Betsey eethd oud, 00818 not -eodedriaeman
evose od eedisera amsc seeds wo aneydvom & betusexs wats anee eri
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eine! feacA -.ogeadros bas eden odd figod. mend fia biuow on. bees!
to teddam Ff as bas emid gedd te egead tom, 10 ‘don ‘edd ‘98 cc ‘bit
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a'esflenqe to seesfet a brooey 10% belit a aa coral nO be
yd tOl Sebivera OOSI% edd To #o0-.S8°L.8S dota boteb pene.
baa“deso ot OVS? madd bieq vadened, egngirom bas ston *adnel fogge
égrzdror ae’ selleqqs to tuemyad ' badtoqiug at deer ant: bonister
Bod nan ad biea reve sew eidt to treq on Jud, sesnbeddebai
saegdvom 'ednelleqar tedt welding Tie yd beotrast od of: arpeags a1
od weil soitg © ak, SSer és dora a0 mons vd mevig: OOSIE-101
dadd “blot 08 sien Jiyoo [pts sad’ bre exsgdTom &: "est feqqe
‘wacenet, SCOT MM fivgA-n0 “.d1uo0o eint ereted-ten’ et so ideaup
yfveefo 41 revenadvil ted0% ‘ot egegtrom 0081S ‘bine bengiers
«trom e'eelfegqs to sanclor & ‘wedeneh ded Toor end wort erseqye
adnelisogA .inefubuett eae bas eybelwend Ten tvoddiw-obem ‘aay Ogee
attiutd erg mort miedd of beeb erfd brie SxendT on! eee! feqqe to wom
baitissed samored yime" dnalleqgA lodetend footdee ‘sham eer
oN dandiydreqota edd +o? OOOSS ete tea “ond gag oF ‘esw od daiid
o¢ sew Bar COGP rot atom 2 eds tind ong svg. dero ot O08 bksq
esw odon e’salffecas to tremysd edt socom CGeo b fan end yaq
atael leaden yd bira soit easdorug edd to dtaq 6 Od ‘od stotetadd
hed avewle sas .red vot noe ted 10 /esfloqqA-“Peodimarg eld ot
-yoaxe yiedd ‘to emis sad mort opendiom his eton°Sdd to to ieeeeeod
paw werered word oe dadd wore’ Jon -eedb™ loorg Sx? Hold
aos te bgt
Pixid ee Teh PT pee %
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the agent for appellee or that they relied on that fact in the
transactions connected with the execution of their mortgage.
The factt that Renshaw was made trustee in the mortgage
gave hin of itself no right or tse authority to receive payment
of the debt secured thereby (Leon v.WcIntyre, 88 111.App.349).
If the trustee releases a trust deed and recaves payment of the
debt without actual authority and without producing the securities
the party paying has notice of the want of power in the trustee,
The inference of authority to receive payment of the securities
is founded upon the poeesssion thereof and it does not exist
without possession. (Fortune v.Stockton,182 111.454; Stiger v.
Bent,111 111.328; Keohane v.Smith,97 111.156; King v.Harpster,
306 111.202.)
Appellants having made payment of anoellee's mortgage to
the trustee,Renshaw,when he was not authorized to receive the
same and having taken fron him a release without obtaining the note
secured by said gericsaw ts ehareesbie with notice of Kenshaw's
want of power to receive payment thereof and release the mort-
gage. In accordance with the law as baid down in the akove au-
thorities anc the facts shown by the proof in this case,the de-
cree herein must be affirmed.
Vat | : Decree Affirmed.
\
ant at dost dat no betier vedd tend. to. ea fieqar’ rot ‘rege sel
-ogagivom viedd to soi tvosxe snd div betoonmoo vero itonensy:
ansatrom add ni eodauys ebam ear waderel dadd: ddoa? of?
inemyse avisoar od ytivediue ee 10 dduiy on TMoeeti to: niet ‘ve,
(O88 qk. Lil SB,eumteied. v nos!) ydeterd ‘beru.em ddepredd: BY
edt To. deremyad sevnoor bie ‘heeb tend #2 eeaselet eotentd) “ent a
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-esitinnoes edd to dnemyeg sviexst od: yd trodéue: to eotereimi Si
deixe Jom eo0b divbas tooteds soteeessog ant moqit bebitiobe
otWotemit® ;AGh, IL] S8ijnotdoose. v' attrdrot) “00 Leesaeod” duoddt
todegvel. + gaih :OGI. 111 TC .ddim’.v omsdool; 888s LT {LE dine’
ey | | (SOS SfIT- 80
ot egendiom e’eelleccs to tnemyaq aban arived ednal feqas™ sti ates
adit evieosr od bositodtus don esw od medw, waleof, sedeutd ar,
eton edt ariniatdo juodd iw seselet a mid mo1t ceded oqnived basveme
e'wedenel to esidon atiw af Shicnses: ogentrom bee yd bewwoe
-trom ond apaofet baa toasters droniysa evieoer od rewog to dna
-ue evode oft mt mwob bied ee wel ond ddiw somebtoook al. ee:
“0h oft,eeso eidd of Tootq end yd mwode. adost ond bs eeidinor
-,bemtitts ed dagm ntered ser:
eSNG bai eo
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Perm No. 61. . Appellate Court | f &_ agenda Now 5.
ra
Fourth District
March Term, Aw D. 1926.
Lf
es. Nee Opin (On
hn Pp, Keim,
f Appeal from Circuit Court
Appellee
of (Vss of f= j t} r
/@, Kenehaw, et. al., St. Cleir Countge Os fer fy)
et Miller and Fé meh Lis
ee tN ee et Se Set er Seer
t
w.
m Monynihen,
Appellants.
OPINION BY HIGBes, J. Meinggt
4 On October 17, 1922, John P. Keim, filed his bill to the
mary term, 1923, of the circuit court of St. Clair County to foreclose
ertain mortgage making Henry f. Renshaw, Nettie P. Kenshew, Willis 0.
Sarah Mayo, Margaret Miller, John Monynihan, Alex 5. Vien,
P. Murray, Jr., and N. ¢C. MeLain, parties defendant. fhe bill alleges
st on April 16, 1911, Willis 0. Mayo and Sareh uayo executed and delivered
Henry fT. Renshaw, trustee their promissory note in the sum of 41000 and
secure the payment of the same executed the mortgsge sought to be fore-
sed) which was duly recorded on the 27th of April, 1911; thet shortly
27 the execution of the said note ond mortgage appellee becakée the
thereof, end has continued in possession of the same up to the time
filing of the bill.
fhe bill also alleges that Margaret Miller purchased the premises
sd on the 1zth day of June, 1919, at which time appellee's mortgage
record, and that she had due notice of the same; that on April <5,
enry T. Kenshaw, trustes ,freudulently released the mortgsge involved,
fp one John Moynihan claimed to have some interest in the premises as
23 that the other defendents nsmed claimed some interest in the
hargeret Maller filed an answer neither admitting nor denying that
| were: indebted to Henry T. Renshaw, trustee in the sum of $1000,
oe Peay geil ee
. arecgqe Leta edt at peaoltman ano est 8s cassia 2 sous feats
oC sO sb mega >... ‘ P $200. etslieqqAa
whhaleis ia dor 0% ee
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bas 2005 3 to me ont RE ‘Fon eye ietse: Spe sovewss snutonois
- gitone tacit wer tira ‘te jaar vat 0° ‘pasted tnicaasabean bes
oid opfiasad oviiegaa egeg irom bite ete ‘bine ont eacituoene ont
. eatkt edd ot - ‘Sia: ont to Herseonaea t at bonsittnos ged ba: stooredt
BEN at Maan
geu bhorg ote benadong tolt tt toxayiail feat p eogeita’ oa da ‘Etta: off is
egegtrom a tesifedda oat doidw ta Oren Bante to” ‘ee ted: ‘ent ae ‘bev
Ge fi Mi “BO ait jemoe edd to volt om sae ‘ball ot “tact jas on é
; sootivags ‘to agayis oa Pe + footdue bits “TOree kat ee 2
stadt gat yueb rom anttd inbs “eeddieon ‘Tewans” ‘ne ‘poLetes EERE.
or to mua. aut Bt eoteint Scones oe ‘ertiell® of: ‘baddooet ore fer
ra, and alleging that whatever indebtedness it was given to secure
been fully paid; that the mortgage had been released on the record by
end that the sale was not a lien on the premises
ary ft. Renshaw, trustee,
This answer further alleged that on June le,
Miller a bond for a deed for which
ser ibed. 1919, Henry 7.
w executed to Margaret ghe paid
Wo 900, cond itioned that when this smount wes paid said Khenshaw was to
eute her a warranty decd, and she was to assume & mortgage of §1000;
the last of these payments had peeh made, but that said deed Was never
ted, ana that the bond for 4 decd given herby Renshaw was recorded
the 29th day of August, 1922; that she went into possession of the
O—
perty upon the execution of the bond for deed, ané hed continusd in
session thereof ever since; that she, the gaid Margaret Mdliex, was
premises from the said Henry {, Renshaw.
titled to a a@eed to said
: John Moynihan filed an answer eontaining the saue statements
eming the execut ion £ the note and mort
Henry T. Kenshew and his wife
gege in question, and further
leging that on the Biel, of April 1922,
recuted their note in the sum of yL000 to John We Renshaw and also
recut ed a mortgage securing the payment of the same om the same property
that said mortgage was duly recorded on
sseribed in eppellee's mortgage;
ot set forth, purchased
e zist. dey of April, 1922; that he,
r of this mor tZege + and at the time of his
produced a certificate of title issu
on some date 2
nd became the ows purchase of
game said John We Renshaw
st. Cleir Title and Guaranty Compan
ed by
y showing that the fee simple title
0 the property involved was fully vested in Henry T. Renshaw end Nettie Pe
fe and thet an examination ot the record
that the mortgage held
and to
Renshaw his wi then showed that
ellant had been reieased;
r to the mortgage owned by appellee
Replications were
the mortgage held by app
by said John koynihan was superio
ny interest of Hargaret Maller in or to said premises.
Piled to these answers, and the cause referred to the Master in Chancery,
report of the Master in Chancery the court aiter
on the coming in of the
entered a decree finding that en
overruling the exceptions thereto,
\pril 15, 1911, the Mayos executed the
and that shortly thereaiter 2p
aie
note and mor teage sought to be fore-
losed by appellee, pellee became the owner
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sd eiavaetada: emse oft. SRtnt atn09 Sowoms ae, be,
: teddant one Bolte y. sk exegdr om. baa, otom, end
-oltw a tel baa wedened ig eral. S80 Steps.
eete: bas» Wedewed Cun auto. ot C00LG: 3
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beesdorsg efiltot tos. Fon. ered onge ot dads 4836 s
aie eacdoxsq sid to vik edt. +2: Bas. + som
¥d bouset Biter 0. etagi isos a boouboxg
ltt olqmis ‘eet edd dads Beiwod a karoge, . sates bao. ;
at aévten Sits wastes
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fait bewoda aeds. ‘Broper edd to Sottansnsxe
blot sas Rade Os ont tee eee aet need Pot.
e101 od. 08 te ousat soa
that said Henry T. Renshaw continued te pay the interest to
e same;
that in August, 1922 the firm of which
lee up until April 5, 1922;
4 Henry T. Renshaw was 4 member failed and was later adjudicated a
that on Seprember le, 1219, the Mayos
‘but made no mention of the mortgage
krupt; conveyed the prope rty
bived to ssid Henry 4‘. Renshaw,
nvolved, in their deed; that prior thereto, on to-wit, June lz, 1919,
_* Margaret Miller made & contract or bond for a deed with Renshaw
- the purchese of the premises herein involved subject to a thousand
of which was &
on of said premises,
ar mortgages, payment ssumed by her; that appellant
ler the reupon went into panneres: ana eontinued in
phe possession of the same to the time of the filing of the bill herein,
el, 1922, said Henry @, Renshaw, as trustee, fraudulently
on April
ee executed a release deed, releasing
without authority from ap pell
ellee’s mortgage, but thet said release was not filed for record until
‘oril 25, 1922; that on April 21, 19%<, seid Henry TI. Renshaw ené his wife,
a by appeliss’ Moynihen,
6 of appellee's mortgege was filed
was shortly aiter the
sxecuted the mortrage owne which was filed for
ord on the same day that the releas
record; that this note, dated April 21, 192,
a to appellee Moynihan,
ubt as to the dete when
cord after the Renshaw fsilure,
execution thereof sol
3 that there is some do Moynihan purchased
‘ame Loan; that he filed an affidavit of re
he acquired it April 21, L922, several
but that in this case he
stating that days prior to tne
peoording ef the release of appellee's mortgeze,
testified he purchased the same on april 24, one day sien to the record=-
a ng of the release deed.
3 | fhe decree, then, after referring to some finding in proceedings
shaw firm concerning which no questions are
in the bankruptey of the Ren
he time of the purchase of these
_ raised on this appeal, finds that at t
"premises by appellant, Margaret Maller, vuder her bond for deed, appellee's
and she was charged with notice thereof; that the
- mortgage wes of record,
1922, of appellee's
by Henry T. Renshew on April <l,
lease deed executed
s ordered and decreed to be 3et
orteage was null and void and the same wa
-b-
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It was further decreed that the mortgage owned by appellant
nihan end afterwards assigned to Ralph Cook, which assignment was
pavers, was null and void as against the rights of appesilee and
nt Margaret Miller, and appellee's prayer for the foreclosure of
mortgsge was allowed. From this decree the defendants Margaret Miller
hn Moynihan slone ap pealed.
fhe evidence shows conclusively thet appellee's mortgage had not
4 pate ana that the release of this mortgage by Henry T. Kenshew trustee
asudulent and without authority from appellee; that at the t ine
y tT. Renshaw gave lsrgeret Miiler the pond for a deed appellee's
teege was of reeord and she assumed the payment of the same; that at
me appellant John Moynihan purchased his mortgage, appellee's
ge had not been released of record. Under these circumstances it is
r that appellee had not in any way lost his right to foreclose his
Zee ‘the only question involved on this appesl is appellee's right
Beereciogare of his mortga
te
ge and as the proofs fully sustain the find-
¢ the chancellor and the decree entered in accordance therewith,
th decree should be and is here by affirmed.
Gy he uprth
DECRHX AFY ThieaD.
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CURTHE Dales Lec Ring
ICTOBALR TER en Del masa Omie
ry ro
bet Som Agenda Noe 5e
erm Noe 61.
~
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\ See [reviog s OP1M Ary
JOHN P. KEIM, |
24 i of, Li A
Appellee. ai as
Aopeal from the Circuit Court
‘VSe of
St. Clair County.
HENRY T. RENSHAY, et. al.
MARGARET MITLER and
JOHN MONYNIAAN, i
A-vellants.
SS SOO Oe OOo
Higbee, J. - On October 1/, 1922, John P.keim, filcd his bill
to the January term, 1923, of the cirevit court of St. Clair
county to foreclose a certain mortzage making Henry T. Renshaw
Nettie P. Renshaw, Willis ©. Meyo, Sarah Mayo, Margaret Miller,
John Moynihan, Alex. S. Vein, ii. P.Murray, JY, and N. C. Me
Maactontint. The bill alleges that on April 16, 1911,
Willis 0. Mayo and Sareh eyo executed ond Gelivered to Henry
T, Renshaw, trustee, theixy promissory note in the sum of $1000.
and to secure the payment of the same executed the mortgage
sougth to be foreclosed, Which wes duly recorded on the 27th
day of April, 1911; that shortly after the execution of the
said note and mortzage aypellee became the ovmer thereof, and
hag continued in vossession of the sane uy to the tino of the
Filing of the bill.
Tho bill als) slleges that Marga:et ifiller pur-
ehasod the premises involved on the 12th day Pe gue, Lolo
at which time the anpellee's mortgage was of record, and tuat
Ns
She had due notice of the same; that on Anril 25, 1922, Henry
Te kenshaw,, trustee, fraudulently released the mortgage in-
volved, and that one John Noynihan claimed to have some inter-
est in the premisss as mortgagee; that the other defendants
named claimed some interest in the premises involved as re-
ceivers or otherwise but that the interests of all these de-
fendants were inferior and subject to the rights of apnellee.
Margaret Miller filed an answer neither admit-
ting nor denying that the Mayos were indebted to Henry T. Ren-
shaw, trustee, in the sum of $1000. , but admitting that such a
mortgage as the one mentioned in the bill a»nvears of record,
and alleging tnat whatever indebtedness it was given to secure
had been fully »aid; that the mortgage had been released on the
record by Henry T. Renshaw, trustee, and that the same was not a
lien on the premises descrived. This answer further alleses
that on June 12, 1919, Henry 7. tenshaw executed to Margaret
Miller a bond for a deed for which she paid him »900., condit~
joned that when this amount was paid said Renshaw was to ex=
ecute her a warrenty deed, and she was to assume a -
mortgage of #10003; the last of these oayments had been made,
but that the said deed was never executed, and that the bond
for a deed given her by Renshaw was recorded on the 29th day of
August, 1922; that she went into possession of the property
upon the execution of the bond for a deed, end had continued
in nossession thereof ever since; that she tho said Margaret
Miller was entitled to a deed to said »remises from the said
Henry “,. Renshaw.
John Moynihan filed an answer eontaining the
seme statements concerning the exccution of the note and mort-
gage in question, ant further alleging that on the 2lst day of
April, 1922, Henry T. Renshaw and his wife exeouted their note
in the sum of $1000. to John J. Renshaw and also executed
Ces
>
_— yy ao
oe
=
cee
a mortgage securing the payment of the sane on the same prop-
erty cescribed in ajvellee's mortsage; that said mortgage was
duly recorded on the 21st day of 4»ril, 1922; that he, on some
date not set forth, »urchased and became the owner of this
mortgage, and at the time of his vyurchase of the same the
said John J, Renshaw produced a certificate of title issued by
the St. Clair Title and Guarenty Comsany showing that the fee
simple title to the »roperty involved was fully vested in Henry
T. renshaw and Nettie P. Renshaw his wife end that an exaninat-
ion of the record then showed that the mortzase held by apvellant
had been released; that the mortzase neld by said John Moynihan
wes superior to the mortgage owned by appellee and to any inter—
est of Margaret Miller in or to said premises. Replications
were filed to these answers, and the cause referred to the
Master in Chsncery, Upon the coming in of the report of the
Master in Chencery the court after overruling the exce tions
thereto, entered a decree finding that on A»nril 15, 1911, the
Mayos executed the note and mortgaze sought to ve foreclosed by
appellee, anc that shorti: ; thereaftor appellee became
the ownor of the same; that said Henry T. Renshaw continued to
pay the interest to avpelle up until Avril 5, 1922; thaf in
August, 1922, the firm of which said Yenry T. Renshaw was @
Inember failed and wes later adjudicated a bankrust; that on
September 12, 1919, the liayos conveyed the property involved
to Henry T. Renshaw, but made no mention of the mortgage in-
volved, in their deed; tha% »rior thereto, on . to-wit,
June 12, 1919, appellant, Margaret Miller made a contract
or bond for a decd with ienshaw for the purchase of the premi-
ses herein involved subject to a thousand doller mortgage, aay~
ment of which was assumed by her; that appellant Miller there-
m5on went into »vossession of said premiscy, and continucd in
the possession of the same to thé time of the filing of the
Se
D
ae
mm
aie Cote eass a ’
eee ae
jiked Pp ole
ym 2h, ;
bill herein; that on April 21, 1922, said Henry T. Renshaw, as
fraudulently
trustee,/ ‘and without authority from appellee ex-
eouted a release deed, releasing annellee's mortgage, but that
said release was not filed for record until Anril 25, 1922;
that on April 21, 1922, said Uenry T. Renshaw and his wife,
executed the mortgage owned b; avvellant Moynihan, which was
filed for record on the same daythat the release of appellee's
mortgage was filed for record; that this note, dated April 21,
1922, was shortly after the execution thereof sold to appellee
Moynihan; that there is some doubt as to the date when Moyni-
han purchased the loan; that ho filed an affidavit of record
after the Renshaw failure, stating that he acquired it April
21, 1922, several days prior to the recording of the release
Of apoellce's mortgage, but that in this case he testified
ho ; purchased the saie on April 24, one day prior to
the recording of the release deed.
he decree, then, after referring to some
finding in »roceedings in the bankruptcy of the Renshaw firm
concerning which no questidns are raised on this anpeal, finds
thet at the time of the ‘ urchase of these »remises by anpellant,
Margaret Miller, under her bond for deed, appellee's mortgage
was of record, and she was charged with notice thereof; that
the release deed executed by Henry T. Renshaw on April 21,
1922, of avsvellee's mortgage, was null and void ana the same
was ordered and decreed to be set aside.
It was further decreed that the mortgage owned
b appellant John Moynihan and afterwards assigned to Ralph
Cook, wihch assigment was not of record, was null and void
ae against the rights of avpellce and appellant Mergarct
Miller, and appclloe's prayer for the forcelosure of his mort—~
gage wes allowed. Prom this decree the defendants Margarot
Miller and John Moynihan alone avpealed.
es
The evidence shows conclusively that appellee's mort-
gage had not been paid and that the release of this mortgage by
Henry T,. Renshaw trustee was fraudulent and without authority from
appellee; that at the time Henry T. Renshaw gave Margaret Miller
the bond for a deed appellee's mortgage was of record and she
assumed the payment of the same. It also appears to us to be
shown by the proof that at the time appellant John Monihan pur-
chased his mortgage, appellee's mortgage had not been released
of record, Under these circumstances it is clear that appellee
had not in any way lost his right to foreclose his mortgage. The
proofs fully sustain the findings of the chancellor and the
decree entered in accordance therewith, and therefore such decree
should be and is hereby affirmed.
DECREE AFFIRMED.
Not to be reported,
i oe 4 =e Pe - a
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aie bone biose: Te aw opegt tom e'eellegqs beeb ry %
ed of au of etesgge cede $f .ommee) oft to dnenyeq ond
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FUN EE AN fA Ae
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* ess. ik / ps
STATE OF ILLINOIS. pA
ry Lg sae of 2s
APPELLATE COURT Be egg ee
eedot CAA 499,
47H. DISTRICT. “Ope YT fh
Tae, v j i
SP Pe, v *
Rye ae ‘a ae £-
OCTOBER TERM, Ae D. 1926. Cen
TERM NOe 3. AG. NOs 19.
a
gq es
SH
HENRY YARDEIN, et al,
Appellants, : APPEAL FROM
VS. : ALPON CITY
EUPHRASIA De QUINTAL, : COURT.
Appellee.
PER CURIAM - RULE 15 of this Court, provides that the assignment
of errors and cross-errors must be written upon or attached to the
recorde In the case at bar no assignment of errors has been written
upon Or attached to the record. ,
The requirement that upon appeal or writ of error
there must be an assignment of errors written upon or attached
_to the record, is not a mere matter of form, to be considered
waived if not cbjected to, but oe of substance, The assi-nment
of errors performs the same office in this court that a declaration
does in a court of original jurisdiction, and is equally essential
in the forming of an issue upon which the court can properly give
judgment, Ditch vse Sennott, 116 Ill. 288; Aetna Life Insurance
Coe, VSe Sanford, 197 Ill. 310.
It is not sufficient that the abstract of the record
shows an assignment of errors which is not written upon or attached
t@ the record, Ditch vs. Sennott, supra; Benneson vs. Savage, 119
el-
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sotteusfosh s jedt times aidd nt ssltto emse et amtrotteq exo Tre to
isitneaee ulisspe sk hue ,noltolbetust flemtgixve to txumoo ge ak esob
avin ylteqery nao drpoo edt doldw soqu enact maa to gaturot estt 7
Soilarsent elll amfeA 2868S .{1I aff ,dtomnee »av dodid ,dnemgiat —
eOLS ffl Vel ,frotast .av 0200
bxoorx oft to dgoarteda ect tads twetoltioe ton at $1
bedoadie %o moqe netiinw tom el doldw axorxe to teommgiaes me evade i
QiL ,ege7se .ov moxemmed ;atqge ,itomnmes «ev gotid ,hreset ods ot heh
111. 135; MeIntyre Life Insurance Cos, vs. Poople, 205 Ill. 370.
No errors having been assigned on the record, there is and can be
"no joinder in error, and therefore no issue for this court to try,
——— Vse Savage, Supra.
i | The cause having been submitted for final determina-
tion it is too late now for appellant to obtain leave to assign
ierrers upon the record or for the court to require it to do so,
‘Ditch vse Sennott, supra; Benneson vse Savage, suprae The failure
to assign errors on the record necessitates a dismissal of the
"appeal even though alleged errors are argued in the briefs, Voges
vs. Davison, 306 Ill. 357.
This court has taequently called attention to the fact
ee a
=
thai it is essential that the assignment of errors must be written
_ upon or attached to the record and unless it is there is nothing
for this court to consider, Naroni vse Paitson, 126 Appe 205;
i Beacon vse Blobe Printing COs, 128 Appe 307. It is unnecessary
to cite other cases. ‘The appeal is dismissed at the appellants’
costs.
2ONE 4fET HOS ,aLqoed .Bv 00D Snastbent eth exuiaten eae er
ed aso bos el eredt ,fxoods odd no hemgiees oped gilvad axort | ol
crt of txyoo eid vot exalt on etoteredd bao ,voxre at tebertot om
-oniwredéS Ienit rol Seltindss meod gutvad eauao edt wi) 9" : ;
tgteas of ovacl niatdo ev tuatfeqge sot wor etal oof ak ok ens
{de Ob of 2h exiupot od dunoo oft not xo Hrooet oft moqn ator
erlial off «stgre oe evBe »8V mowenned SRE 4 yy ve aot
od to Isasineib « aotatisesoon Sxooer odd so ‘sort anions of
eagov ,etefud od? at denny exe BXOTTS Beye lis ee 978 tesaae
ee
toast edt of soltnoste heliao Tidaonpage sad dxpo0 ald? | :
asetéiuw of tacm etotro to tnemmtase oft tad? Iettwoese el od wd
a at erodt al at ane fie ne Hxropet oat ot Seroatis 70 moc
BOS otc GSE oad bet “87 ino tai! aehboiae ot dxmeo aldt 20%
uEesosocmn es 47 (Y08 vagh OSE 000 pakmdae edole vev megan
oe ; gas ES. a
tdinaliogra ods ta beee hme? at t Leoans oat wenao seatto etto os
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taoo
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/ PRA
STATE OF ILLINOIS. hi [fe he
ee) LE Bt | )
ae eye APPELLATS COURT FER wt hee
gue 258 \ i tg 99
47H. DISTRICT. oe “7
Clee J | \ ie
Fou, TH vel) by Ae
OCTOBER TERM,AeD. 1926. SES
f ony
TERM WO. 44, AGe HO-« 34.6
THE PEOPLE 0% THE
STATE OF ILLINOIS, APPEAL FROM
Appellee, :
i : COUNTY COURT OF
V5~ :
: BOND COUNTY.
GEORGE STANBERY, 3
Appellant. z
Per Curiam: - The transcript of the record in this case shows
that appellant procured a special bill of exceptions pertaining
to certain remarks made by counsel for appellee during the trial.
It further shows that the general bill of exceptions bears the
following endorsement:- "Presented this 50th day of September,
Ae De 1926, Silas ii. Triel Judge." There is no showing that
the general bill of exceptions was ever settled and signed by
Judge Cook. All of the alleged errors argued by appellant are
such as can be preserved, only, by a bill of exceptions.
The abstract of the record contains no assign-
ment of errors. It is well settied that the assignment of errors
should be shown in the abstract, which shovld present whatever a
reviewing court is asked to examine, and for a failure in that
regard the judgment may be affirmed, Superior Lumber Co. vs.
Tracy, 76 Epp. 5513 Independent Electric Cos, VWse Donald, 86
Apps 106; Marsh vse Jones, 106 App. 577; Brow vs. Otrich 119
Appe 136.
a e
. on _— tat09 SUATeeGA vib ee Ne
a AMA
NV eit 2 BRO: sh A MEee casonoo: HNO pediag co ,
i 5 es iw ey a ih 3 Bah " een Ras paar et i) ‘ ‘wats 9 ccna s sayin Dy ;
WT URRNANTI RD ay mee
RAE, a4 eeute
SCS Kea Se UPS Rag ut CMP hm ae, Cay setae ey! PL sae S hci ta Mike am ik
He
eid exwod ano2itoose To" ELM tecehey bits! dead aeite Wd
|, wodeedqet to yab dios edt besucners" a c
decid guiwoile ox et exodt ac a
qd Bens fe. pene boride, 20
20 .Dinune se. o68 onitoat: dusnecselit fee
err doitdO »Sr morose: 1 oo 8 or
fh
All that the abstract of the common law record
shows with reference to what was the verdict of the jury and the
judgment of the court is as follows; "Pages 6 and 7 of record.
Minutes of trial, judgment, verdict of jury, motion for new trial,
judgment, judgment, motion for appeal." In the abstract of the
purported bill of exceptions pertaining to the same matters, the
following appeers: - "Pages 213-214 of record. Verdict of the
jurye Pages 214-217 of record, Motion of defendant for a new
trial. Pages 218-219 of record, Ruling of the Court denying ea
new trial, allowing appeal and bill of icone cane. ete. Pages
219-284 of record, Final judgment of the Court." ‘The abstract
does not show what time was allowed for filing the appeal bond,
or that a bond was ever filed or approved.
It has been held that an abstract of the record
and a judgment which merely refers to the judgment as « judgment,”
“judgment on finding" or “thereupon the Court rendered judgment
upon the verdict” doss not furnish material upon which to base
grounds for the reversal of the judgment, Amundsen Printing Co.
VS. Empire Paper Co., 83 Appe 440; Gilbert vs. sprague, 88 App.
508; Marsh vse Jones, 106 Appe 577+
Four juries have passed upon this case and it is
now here for the third timee We would be fully warranted in
affirming the judgment, solely, because of the insufficienzy of
the abstract to present the alleged errors relied upon for s re-
versale It may be that the clerk of the County Court simply.
neglected to show that the general bill of exceptions was signed
by the Trial Court. Notwithstanding the insufficiency of the
record and the abstract we have considered the various contentions
urged by appellant. |
We are of the opinion that the Court would not
be warranted in holding that the verdiest is so manifestly against
the weicht of the evidence that it should not be permitted to
stand. It mey be that the Court erred in some of its rulings on
aa
brgoo8 tet ce pommon, oat to toasiads out Fads ra (vg Saleyse MD ee (
edd hae yust edt to telécer edt eae tedu ot sonenatas. atiw me :
_ afexoget to T fae 0 eeyet” — sewoLlod ae 2 at tame etd to Poona ;
mahal. tetas | w
ond to toasdads ond ot “sleogge ~0r moitom ,smoughot »
ont eretian enes oft oF Rutiniaireg anoltqeoxe to Lli¢
eas te soLiret »fiooe = Lo PESRSLS eeyai" - pateeqga .
wer 8 1% dnabneteh to ao ttou eitaoon Lo TESadES pareet®
8 gatyued tusod, edd to. Rechiot ‘sbuooes To CI8-848. segel Lake
_ Boged . .ote ano2tqooxe te Ifid bus Lnegqe gulwolla statss oa
dsettade ed? ",dencdD edt todueayhot Lemth phsooer to 8 S He
nos Looaye sit yatEt x0} hewessa cow matt fas wots tom ooh
a abe rota 10: oki rave: mn: hand a Sadtiail
proost s ete to deawieds os tad’ bled mood and cp ae iain Ait i 4 :
% « torong bal" ee teogghal ed? oc axeker qieram do kiw dnemphat. «- ee. i
tronyast Lerehags Pod edt aeqwozeds™ 0 "yakhalt oo eases ,
soed of seide aot latyeten se tuxst tomas. ioRiRey id, moa
00 2ateld senhamms ,taemRhel edd te laeeres O68 AAR MRR
AMT, BO. soarparaa Wh « Pred LI 200) -cqh BB 4909 toqel) extant or
“TRE ah O02 sem} ee sermaH, ane
elds sae, eeao etal mocn beweagq evad aobenh 29% 4 yon, yyy ahve
at hetneview Link od Sirow ew . vomls, abit ede x08 ee we
to yoneloitiment edd to gensoed ,yleloa ,tnsmpbeh, od pecker ete if
“ox a xo% noqs Beller evowre begetie od. tneaetg od toavéedsedd
viqmie dived ysamed eit ko supls edd Jedd od yam a1. valance
Hangkhs ssw anotiyeose te \Lfid Laveney eit ted? wode of hetoetyen |
edt Ro youoldihivant ost qalknetedt wok 4tu9e0 fads? emt yd |
emoivmedaoe amitay ode betehiasos evel ew tearieds. odt poe Bxopes kB:
gtd logge: Ud Sopa i
Jon bizew Jum edd tedd aoiatge edt Y ome MH) oo See
samkags Yideslicen oy sl tedbrov edt tadd-gatetod gt bonarcey of :
(OF Doddinreg ef doa biscse $2 dadtcomebive edt to tdatewedt
HO agutinr aft Lo euou mt Sexve 100 edd dadt od yom #1) /sbuete
taixt wom. 2et mottoa curt to so.buey , i
‘id
opinion
iy
yj that any errors committed in that regard were not so grave as to
require a reversal.
Six instructions were siven on behalf eof appellee
and fifteen on behaif of appellant. Some of the criticisms di-
rected against the instructions given for aopellee would apply
q with equal force to some that were civen for appellant. In=
structions were given on behalf of appellant which were more favor-
¥ able than the law would warrant. Taking the instructions as a
series we are of the opinion thai the imaceureacies in those given
on behalf of appellee were not such as were likely to mislead the
| jury as to the main issue in the case. |
Appellant argues that one of the attorneys for
appellees made prejudicial remarks to the jury. One of the remarks
complained of was made in the op@ning statement of the case and
was to the effest that appellees would offer certain evidence.
‘The special bill of exceptions shows thet appellant objected to
the remarks and the objection wes susteined by the Court. It al-
go shows that there wes no objection made to the other remarks.
Appellant has no ground upon which to base a complaint in regard to
‘ee remarks of counsel. No reversible error having been pointed
- oat and the abstract being insufficient to present the alleged
_ errors, the judgnent is affirmed.
Ma | he S a
y; rm]
noldige od? to oxs ow tod ,eomebive te aolenfoxe ine aoteatnbe oft
heial as over | 08 secs teil SEN at achpobinenee emrre yas feds
i ae 3 MaRS?) RE eae ey ce hh at 2g ertsper
selfeqys to ‘ifeded mo mort, orew arottortdens ete 8 8 be
“=15 emelotiiro edi to amoe © tanflenqs to Maded mo meottiF bag
qigqe Sivow eelleqca «ot movi) anolforriin? edd Jemtays Belver
ett ,tnaftogg¢s vot movhy exe deat smon ot comet Tempe atiw
-tove® eto svow doliw duatieqga %6 tLadte’ no howdy * ‘eren eaotiostta
& be atbltomerént ace yubtat” etaecaw tb Loti Wee AMY eet Wile
nevts ‘seeds ui epkbipcbedaut oad wade te twhad bad he Cee ew eelitba
ad peotete: od wat etow Ba down dor avew optfeqte te REsHee he -
“ Jeeeo ant nt eweer | test ee
ciottes ad? to emo dedt ‘pomea Ges. eRe SS) MS
attemer oft to amd aytut eft od sitwamer foto Lint sug eben ‘sei toges
‘bus ones odt te Seterstate gcctiird Sit m2 oben eew to bontsIqme
< ecxoStve atadyeo “otto Sivow selforda tatlt tobtee Gat oF Baw
“bd bedvetde tstfeqys tadt arated beoltypeone te Cre —
acvehnint Fest od! yd fexletera aew cotéoetde otf Bre ectuamd’
“,eaktemet testo eff of obam notdvetdo om ast ered? dant parents
od Suegey at Hifelquos a cead oF ifs Edw moe Breer “on ead dae Liege
peoeite need ysived roxce eIdterever off , feunwod to ‘eeemer ont
Usaeahani ‘edt taoierte bad tretoltrant pxted toatteds edt hue tuo
il a Pi sepmpene: bal dhonsngons eae serttine
ri DOR Ue «tne Sieet Pie,
a deer
TREO iia) ge alae a eel ai aaah ae
ig CHR
oe %
Mediates > Wite 9
ee ay ant Seba ctr aia age
sy SSP ati Aaah Steneeaes
SSN 1h EI ai Re ERE DK BRT) SR ey
FAR SPA EN i Ans cite REC) ft Ths DEERE ne
Aad yt yD ag ae a ee aes hae
~~
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so
—
>
eb AR AEN ae Pie ti ot ol wi si
ve < tne ;
HR ANY
| Stal OF ILLINOIS APR 15 1907
\
~ 2 eS ;
~ i AVELLTE COURT rhe», Q
F Tec ee ~) Roe
SA ea ae roe PELLATE.
FOURTH DISTRICT Trees Tales or URE
MARCH TURIT, A, D. 1927,
faRi: WO, 1. AGHNDA NO. 1.
Tis SLOP OF TH! ST..TE
Oi? ILLINOIS,
Defendant in Brror, : WRROR TO COUNTY COURT
raw
elec
Vo. > OF MARTON COUNTY,
JAMSS OGG, :
Plaintiff in Error. :
t
a
BARRY, P,. J, =» In August 1924 an information was filed again
plaintiff in error charging him with a violation of the Prohibi-
tion Act. At the March Term 1925 he filed a petition asking
that the search warrant be quashed and the property seized to pe
returned to the owner. He also moved the Court to quash the in~
formation, At the November Term 1925 he was tried and convicted
and a motion for a nov trial having been overruled he was fined
50C, 00 and costs and sentenced to the county jail for sixty days,
It is argued that the Court erred in overruling
the motion to quash the information, If the Court mode such a
ruling it is not shown in the abstract of the record. It is
arcued that the Court erred in striking the petition to quash
the search warrant, etc,, from the files, The abstract fails to
show that the Court made such an order or that any exception Was
taken, The abstract does show that the petition aforesaid was
not preserved in the bill of exceptions, /s mction or petition
ef this character, as well as the ruling cf the Court thereon,
must be preserved in a bill of exceptions, People vs, Levin, 518
Ill, 227, If the Court struck the petition from the files at
the liarch Term 1925 it «sould have been necessary for plaintiff
id eee
in error to procure a bill ef exceptions in reference to that
matter at that term of court, or within such time as the Court
might. then allow for the filing of the saine, Runyan vs. American
Glycerin Co,, 250 App, 3513 Wabash St. L. & P, Ry, Co. vs,
People, 106. fli. 652/ .
The aostract must be sufficient to present every
error relied upon as the Court will not search the record to find
errors not disclosed by the abstract, Pecple vs. Paul, 167 App:
557; People vs, Yuskauskas, 268 Ill, 228; People vs, Armour,
307 Ill, 234,
It is argued that the Court erred in admitting in
evidence a portion cf the "mash" which was seired by the officer
for the reason that there was no valid search warrant, That
point was made upon the trial of the case before the jury and
after plaintiff in error had ‘ filed his petition to auash the
search warrant, etc, In his petitior he did not claim that the
mash was his property or that the same had been taken from his
“possession or his premises, His petition shows that he was clain-
ing that an illegal search of the premises of other persons had
been made and that by reason of auch a search the evidence in
question had been secured; that the »roperty so secured was the
property of other persons, On the trial of the case he was still
Making the saine contentions and we are satisfied that the Court
did not err in admitting the exhibits in evidence,
It is argued that the Comer erred in permitting
the Stete’'s Attorney to ask Jeading and suggestive questions,
While the abstract shows that counsel for plaintiff in error ob-
jected to certain questions asked by the State's attorney, yet
it does not disclose any objection on the ground that the questions
were leading or suggestive. some complaint is made of the remarks
of the State's attorney in his argument befove the jury. The
record shows that the objection to such remarks were sustoined
by the court, The error assigned in that resard is that the --
ww
8
an
verdict of the jury is the result of prejudice and passion engen-
dered in the minds of the jury by the improper and prejudicial
argunent of the State’s Attorney, The Court having sustained
the objections and there being nothing to indicate that the ie
dict is the result of prejudice and pzssion by reason of the re-
marks we would not be warranted in holding such remarks to be
reversible error,
It is argued that the Court gave improper in-
structions on behalf of the »rosecution, “Je have carefully con.
sidered the instructions and the objections raised and while some
of the instructions might have been put in better form, yet we
are of the opinion that none of them were misleading, especially i.
view of the instructions given on belfalf of plaintiff in error,
It is argued that the verdict is contrary to the
law and the evidence. If the evidence offered on behalf of the
People was true the jury was fully '‘ warranted in finding that
he defendant had been proven guilty beyond all reasonable doubt,
In the state of the proof we cannot say that the verdict of
the jury is contrary to the law and the evidence, Finding no
reversible error in the record, the judgment is affirmed,
APIRITED.
Not to be reported,
if a - / [ f~ APR i 5 1927
} /\ : ) .
%, Va. | P3
y Morvai i way
: | f CLERK OF THE APPELLATE COURT
a 3 f |] € @! FOURTH BISTAIET GF ILLINGIS
\ f aA | ct a
at SWS OL LLLINGits ===
4PPOLDATS COURT
POURTH DisTRICT
OP wg OS Ot OP me bw oe ed i em oe oe Oe
MARGH TSR, Ay D. 1927.
TERM NO. 7, AGEND.. NO. 2.
FS0PL OF THE ST..TS
OF ILLINOIS,
zefendant in rror, ERROR TO THE COUNTY COURT
Va. GF SaLINE COUNTY.
DICK NORMAN,
Plaintiff in trror,.
eo @e 6 ae ee 48 of we
BARRY, P. 3. -=- Plaintiff in error was charged in ean information
with a violation of the Prohibition Lay, Upon aracisnment and
after being duly warned, he entered a plea of guilty and was
sentenced te the Illinois State Farm, & few devs later he filed
a Written isotion supported by his affidavit for leave to withdraw
his plea, to set aside the judgiuent and for a new trial.
He contends that the Court erred in overruling
his said aeeh as The abstract of the record shows that a bill
of exceptions Was signed by the trial court but it f-ils to show
that the Court ruled on the notion er that pleintif? in error as
cepted to the overruling of the sae,
A motion of this kind, and the Court's ruling
thereon, arc not parts of the Coimuon Law Record, To become such
they must be incorvorated in a bill of exceptions, People vs.
Levin, 318 Il. 227, The abstract of the record :wst be sufficient
to present every error relied upon as the Court will not search
the record to find errors not disclosed by the abstract, People
vs, Armour, $07 Ill, 234,
Gee TY A pe ‘eVoek: = ies ter aon *
ari iadedebebr ess, mabe re ae 4) ae ha 7 i
6 .0f cA ot ki leer a
t oT. 26 ee
PAID VIMO GY OF Homie: : Sista: ak dasbaetec
ry -_4¢ P i .
YEQUOD MiTi.3 Ww -: ae
oe el Os i ,»moxrat al ttirinisl
noliceroetat ms ai bogteco saw aotirs at Stétntelt om. .% a Yeina
bas F riouacty Fees nog wat acotstkdidexsS eff to aottsLokw & dtiw ;
asw Oue yilisg to sefg a hetetns ed ,bearew vied ynied sofa :
Beli sui total ays wat a joel odn3G eloail rg onlt se beonotiion
wothdtiw o¢ avesl tot diweditta pid yd hod zoqqure not sos odd ia if
-iaitt wer 8 Dok bans drecmbut ant ebhas goa od eolq ald
gaifuxtsvo ai Serve FiwoD amt dads abtisines ol
Ifid g #orld ewone Drooset sit to tonrvads off .30 kt 6am bane’ bd
urs
wotk of BLi-t $* ded dxvoo Loixtd scct vd bonnie asw snons qaoxe m
“xo toutes ak ttidekals isd
saitvyt s'ixsoU edt Sis bata elit Io aotvon A
r
fine saoosd of .S%05e6H wal mosmuod ant to aivad jon ote
eae x good ,enoadgeoxs To Lf[id s at hodsxocteont os
tasisitines ed sein: baoosx ed Yo sossdada salt
douses ton Lidy dupod odd en noge bet fest core yaove Sa
atod
si¢cose tos &
lea
If the Court overrulec the sotion ané there vas
an excvension to the ruling, plaintiff in error has failed to pre~
serve the saue, and there is nothing for us to consider in that
regarc, It is argued thet the information was not filed in
the County Court. There is no basis for this contention ex-
cept the mere fo-ct that the cleris failed to endorse the cate or
the filing of the information and simply married it "filed",
Tne contention of plaintiff in error cannot be sustained, Tor the
reasons aforeseid the judcpiient of the tounty Court is arfirned,.
AFFIRUED.
Not to be reyorted,
Decoy
Sem moktat 4
: sy iéd Sokot tat w3erte
ee
far
js. totrnataaa sine moh aisad an ae one,
eric sass ad: Jontiso Torte ik MBbentatg |
signe otkih x) ri dias mbar eg aud
te aimee my
HSI E EO Bes
y, 7
f 7 :
at 4 f ‘3 } paar) ? pian) ’
epee, FILED
ff } 1A
\ / / aie ; j ine Oy \
ea STATE OF / LLETFOIS APR 1&5 1927
f “Vine ay »
/ FOURTH jforstRIcT “Sam Qbear at Sy ak?
f CLEAN Sr THE APPELLATE COURT
LOOPLLATE CouRT URYK OISTRIGT OF ILLINOIS
TRCN Te SoD. Loar,
ToRL NO. 8, sGLEDA NO. 7,
“BLDORADO ‘HOLS. LE 2
COR2GR TION, : ACB 2, BRO?) 6. BILE
Appellee, g
. COUNTY CIRCUZ?T COURT,
VS. . q
JOHN TERZIS, OT ab, 3 w a Cie
Appellants, 8
BARRY, P. J. -= Appellee sued annvellants before a Justice of the
Peace to recover for inerchandise sold to the Busy Bee Cafe. There
was an appeal to the Circuit Court anda trial without a jury.
The ceurt found the issues in favor of appellee and renr ed
judgnent against appellants for $154,090,
It was stipulated on the trial that the gocds in
question were sold and delivered by appellee to the Busy Bee Cafe,
fhe only questicn involved is whether avpellant, John Terzis, is
liable for the value therevf. Appellee's imanager testified that
he imew that Hr, Terzis was planning to start a Cafe; that he
talked with him in regrd to doing sone business and that ir,
Terzis told him that Roy iiargetes w.s going to run the Cafe; that
he said to Terzis, “John, Roy's credit would not be any good to
us;" that Mr, Terzis reglied, "I own the cafs, the fixtures and
the whole thing, and Roy is simply going to run it;" that he wantec
Roy te think he was responsible for the gcods; that he gscid to
ir. Terzis, “very voll, your credit is good but Roy's is not" and
ree ferzig replied, "I will teke care of that." He says that
of
lir, Terzis ordered soiue/ the goods in question,
ir, Suick, a salebman for appellee, says that
befozxe any of the goods were sold Mr. Terzis told him he was
going to open gs cafe and that Roy liargetes was going to run it
for him, He says that ne sold the first bill of goods to Terzis
and iJargetes amounting to about 3100.00 and that the three of
them were together on that octasion for an hour and a half;
that Mr, Terzis tcok part in the ordering of the goods and over-
ruled Mr. Margetes as to some things he wished to order, There
was other evidence to the effect that Mr, Terzis was fre-
quently in the cafe, that he often examined the ice-box and ine
spected the cash register.
‘hile Hr, Terzis and lr. Margetes testified that
they were not partners and that Nr. Terzis was not interested
in the business of the Busy Bee Cafe, yet, in the state of the
proof, we would not be Warranted in holding that there was not
sufficient evidence to render Mr, Terzis liable under Section
16 of the Partnerships Act. The trial court was in a bet’ r
position to judge the credibility ov the witnesses than we arc,
and we cannot say that the conclusion of the court was manifestly
against the weight of the evidence, Wo reversible error having
been vointed out the judgment is affirmed,
APEPTREED ,
Not tea be reported.
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23R NO. le. AGENDA #9, 3.
——a
at yas re D
PAUL ALBRECHT, ,
Anos Sui tu i Spiga a :
“a } APPBAT. TRO MADISON COUNTY
CIRCULT COURT,
OMPHGIN? TOUNSHIP, et si, 3
t iP elle \
Beary Pe sy Apveliant sved the towship and Christ Bunte
pefore a Justice of the Peace to recover damages alleged to have
been occasioned to his horse, buggy and harness by reason of a
bridge being out of revair. There was an appeal to the Circuit
Jourt and thet court directed a verdict in favor of ayoellees.
The Law is well settled that townships ere rot.
‘liable to respond in damages for injuries resulting from roads and
bridges allowed to kecome ovs of Yepair, Town of Weltham vs-
Temp Oo el Sloe) Buscelh | vs. Tew of Siewoerm, 57 Mie Soin
Me a2ecore Qisslosss that prior to the som-
ans sued annelles Bunte to recover
mencement of this suit anysii
9
dameces for nersonal injuries alieged to have pneen sustained as a
3S
result of the same accident and that the trial of thet case result-
ed ina verdict and judgment in favor of Mr. Bunte. That being
true there was an estonvel by verdict, There was no liability on
“the part of the towmship and an estonpel by verdict as to apvellee
Bunte. The Gourt, thereforc, Gid not err jn directing a verdict
in favor of anvellees. ie might acd that there was no evidence
d
Bora)
offered, so far as the abstract shows, tending to prove tho
extent of the damages alleged to have beon sustained. If Mr.
Bunts were shown to be lidblé the jury would not have been
warranted in allowing apnéliant more than nominal dsmazes, in
any event. The record fails to show that Mr. Bunte was High-
way Commissio: er ovin an; way responsible for the accident.
Having failed to point any reversible error the judgment must
be affirmed.
AUT TRMEDe
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OC'TU BER THRU fe. ADs OSG
TEAM NO. 54 AGENDA NO. 57-
YILLIAM B. SCHNEIDER, )
Anpollee, )
) APPEAT: FROM CITY count
VS ) ein
\ EAST ST. TOULS ILLINOIS.
FORT DEARBORN CASUALTY } ; a |
UNDERRITERS , : )
Anellant ) ie ogee —
Barry, P, J. Aopellent insured apvellee against any loss by reason
of the liability imposed by law uynon him for damages on account of
bodily injuries, fatal or non~fatel, accidentally suffered, or
alleged to have been suffered, by any »erson, or persons, by reason
of the ownership, maintenence or use of a certain automobile.
The policy contained a »rovision to the effect
that a»npellant shoulda not be idepie while the avtoinobile was being
operated in any manner 3rohibited by law. While the po icy was in
force, appellee, while driving his car, struck and injvred Albert
Scheik. Mr. Svheik sued ayvellee and thereupon he gave arvellant
notice thereof. Avvellant eroloyed counsel to defend. apvelles oWwates
"
the trial resulted in a verdict and judgment fer “5000.00,
| Avpellee sued to recover on the inusrence contract
which he set out in his declaration with the usual averments.
Anpellant filed the general issue and four special »nleas. The
secend special »lea was to the effect that the polic. sued on pro-
vides that avpellant shall not be liable for injury occasioned while
seid automobile is being operated in any manner orohibiteda by Js77,
fie
iy iny
and that at the time of the alleged bodily injuries sustained by
Athbext Screik, mentionei in the declaration, the eutomobile covered
ay said policy was being overated and driven by avpellee in a
manner prohibited by law; that is to say, at a speed greatcr than
was then and t: ere reasonable and vroper, having regard to the
traffic and the use of the way, and so as to endanger the life of
iimb or injure the property of another person, towit: ut a rate of
spsec greater than twenty miles an hour on a public highway in a
elosely built up residence district within the limits of the City
Heeb Ge WOvuls | Tat di sS.<
ri
6
Appellee replied to the second special ples that
ppellant waived the provisions of the policy set forth in said
olea, because imniedately following the ' dAnjury to Mr. Scheik,
he gave rotice thereof to appellant and when sued by Mr. Scheik
anpvellant employed attorneys and defended appellee in said suit,
rmnowing all the facts and circumstances, etc. Appellant demurred
40 said replication and the same was overruled, and it then elect—
ed to stand by its. demurrer, The trial resulted in a verdict end
judgment in favor of apvellee for 45,303.13.
Avpellant contends that it is not liable and the
Court should have directed a verdict in its favor because ef tho
fact that appellee has never peid the judgment recovered against
him by Mr. Scheik, This cannot te sustained. The obligation of
appellant was to indemmify appellee against less by reason ef the
liability imposed by law upon him for damages on account of bodily
injuries, etc. ‘shen lir. Scheik was injured the liability was in-
curred and when the Court enetered judgment against appellee the
Loss on Dott of said liability was sustained, Ravenswood Hospit—
al vs. Casualty Co., 280 Til. 103-
Arpellant contends that the Sourt erred in wersruling
its damurrer to the veolication to the second | special plese.
a
2
Pos23 the cecora shows that szpeliant elected to stand by its
Satu demurrer yet if arec eappvears thet upon the trial of the case
enoeliant cffered ev dence as to the circumstances under which Mr.
Scheik was ilijuyed and questioned its witnesses as to the rate of
‘speed at which appellee was @eiving his cay at the time of the in-
jury. It also offered proof as to the injury having occured in a
built-up residence pertion of the City of East St. Lotis. It sub-
mitted instructions to the effect that if appellee, at the time he
injured Mr. Scheik, was driving his car at a° speed greater than
was then and there reasonable and proper, having regard to the
traffie and the use of the way, etc.,then, and in such case, the
jury should find in favor of anpellart. Several of such instruct-—
ions were given at the request of annellant. Having been vermitted
to produce its evidence in sunport of its second special plea and
the Court having instructed the jury at the request of anveliant
upon the theory that anpellee had denied the averments of the said
plea, appellant is in no position to contend that the Court erred
in overruling its demurrer to the reolication to its said plea,
But at any rate the second plea does not aver that
the operation of the car by appellee in a manner prohibited by law
was t.ie cause of the injury to Mir. Scheik. Accident insurance
policies usually zontain provisions whereoy the insurance is not te
extend to injuriss caused by, 02 wuile, cx im consequence of, Violet
Baz the Loews In order to bring She injury o1 Geath witain the terms
9i this exception there must be a elsax violation sf some criminal
law; and no protection is afforded to the insurer by the fact that
when injured or killed he was violating & civil right, a law or
ordinance not cirminal in its mature, or s rule of morality. In
order te relieve the insurer of liability the insured must hare
been actually engaged in a violation of the law at the time sf the
4
injury, acd the injury must be shown to have resulted from the act
36
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which is claimed to be unlawfu es at least to have hed a causati-
_connectien therewith, 1 Corpus Juris, 457,
In ordér to defeat a recevery under policies avo 1d
ing or limiting liability where death or injury results from the
insured's eriminal action, or in consequence of any violation ef
law, or from an unlawful act on his part, it is hela that there
must be some causative connection between the inusrer's act and
his death or injury, 17 A. I. 2. 1005. ‘there a policy reduced the
Liability of the insurer in case the insured was injured while: ¢
violating the law it was held to aodply only when tho injuries re-
sukts from the causes named and not to limit liability where the
insured was kiiled in a collosion between a motorcycle which he
was riding and another motorcycle, though he had so procured a
registration sertificate or license number as required by law,
Fischer vs. Midland Causalty Co., 189 Anp.e 486,
In a suit uvon a policy, providing that no claim
should be made for an ’ injury which might han»en “in cense~
guence of voluntary exposure to unnecessary danger, or while
engaged in, er in consequence of any criminal act," an answer
that, at the time plaintiff was injured, he was in a public high~
way, in a state of intoxication, which is a criminal act under
the statute, and, "that the injury happened to tke plaintiff while
he wes engaged in, and in consequence of a criminal act," is bad
en demurrer; the conclusion being. <« mere conclusion of law,and
mo causative connection being shown between the alleged eriminal
act and the injury, National Benifit Association, vs. Bowman, 11
N. Bb. (Ind) 316. It is immaterial whether the death 9f the insured
resulted from a violation of a criminal law, or of a positive rule
of civil law, provided the vielation of law was such as increesed
the risk and naturally led to %i1s death, Bloom, vs. Franklin Ins.
Co., 97 Ind. 478.
We are of the opinion that in any event the nlea was
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ee ott UM Cre bt 6 LA de OR ee eee a
: Mi : ey
: betes he fe 7 wud yey ay > PF: “sD js
pre BS fee ROME ae hy i de bw rit
7 » wy e 7 aa | 1g PA 5 Me ao ioe
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bis
aa v2scaugé It failed to show any causative sonnaction vetween the
(3500 W10la¢ion of the law and the injury, I the revlication
Wes 104 4&2 390d one it was a suffisient answer t3 « bad. plea, Gould's
Pic Ghe 9, SG. 57% People vs. Central Televhone Go., 23
Rabat
~w
AGiRnE:
260-276; “leatherfora, vs, School Directors, 317 Jil. 495-508,
Appellant cannot complain that the defective revlication wes allew-
ed to stang to a defective plea, 1 Chitty’s Pi., p. 668; L. N..
A. & Co Ry. Coo, VS. Carson, i69 Til. 247-255. The replication an?
the plea being tad, they aust Tali together. Ill. Fire Ins. to-
7So Stentom. 57 PLL. Sb4—-S59,
Then. again. appellent insured eppsllee against any
toss by reason cf ths lisbility imposed by law, etc. Another prs-
7ision purports tu re.ievs appellant from all liability if the
injury occured while apoe.ice was operating his car in any manne's
vrohitited by law. These xrovisions are very inconsistent. If
the polisy in question is to be so construed as to relieve appoll--
ent from liakrility in all cases where the insured was operating
his car in a manner prohibited by law, the insurcd would have na
protection in most cases, Tractically all automobile accidents
ere due to the fact that some law has been violated by one ox both
of the drivers, Where there are conflicting clauses in an insurance
contract, the one which affords the most protection tm the insured
Will control, Monehan vs. Fidelity Ins. Co., 242 ili, 486. Tae
policy in cuestiecn is so framed as to be susceptibls wf cne cen-
Sivucsion in the hands of the Soliciting agent, amd of quite e dixt-
ferent ene in the hands of the adjuster. It has been sn held that
oclicies should not be so fremed, Travelers Tass Cos, vVSe Dunlap,
160 Till. 642-247,
Ww
Appellant contends that the Court erred in modifying
two of its instructions by striking out the word "fifteen" where
it apveared in said instructions, and inserting in lieu therecf,
ie
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the word, "twenty". The secon? ee at ples avers that appslilens
was operating his car at a rate of speeA greater than twenty miles
an hour, etc. The instructions in question were svidently banca
upon that plea as there was no other plea presenting that defense.
The Sourt Simply chang3:d the instructions so as to correspond
with the pleae Appellant is in no »esition to complain of that
modification. No compigint is made of the Gourt's ruling en any
of the other instructions. No revers.»le error having been shown
the judgment is affirmed.
AFTIRMED»
Not to be reported,
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AP: SuLure COURT
AFR 1 5 jgo
FOURTH DISTRICT
ee ee eee ee 7" Wi . ‘ AN | \ 5 X s ey
t FOUR; ArRE! i
oc? "OBER TERif, A. D. 1926, OURTH DISTRicT OF LET
THRE NO, 1, AGENDA NO. 32.
Tamed ¥4 Keeley and John
Keeley,Partners, doing
business as Keeley Brothers
Contracting Company,
Plaintiffs in Error,
Error to the Circuit
os Court of ladison County,
©@ gee en oe eh te oe
Tllinoia Glass Gompany, : pin
Defendant in Error. :
ee
HIGHZE, re Plaintiffs ‘in error, hereinafter called shane
tiffa, brought this suit te recover danages from defendant
in error, hereinafter called defendant, for the alleged
breach of a contract entered into by said parties on august
24, 1920, whereby plaintiffs undertook to construct certain
buildings at Bridgetown, New Jersey, for defendant. The
contract contained the following, among other provisions;
Gencral Conditions,
3e The Contractor agrees to furnish 211 material and-
equipment and to perform all labor necessary to the excayv <-
ation, erection and completien of all plain and reinforced
concrete foundations, walls, eolums, flo@rs and machinery
cmplacenents in the following buildings: Power House, Worth
and South Producer, Houses, Batch Plant and Factory Building.
All material and labor to conform exactly with the crawings
mentioned herein and with thesé specifications.
Drawings.
4, Drawings of the various portions of the werk will
be furnished by the ommer as the work progresses and accepted
by the Contractor in writing, as a binding portion of this
Contract. Any suggested changes of alterations therefrom
mst be submitted in duplicate form, as sketches or drawings,
and must bear the approval signature of the Owner's author-
ized representative or agent.
el e#
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SiyettD- ses of zUOtsE — re aegquoD. ualdouzsaad
- ; Ce See tort ae a3 au Dalaniecroint ;
- a¥iaued mosibed To gaued.. 3
$ ea oo 4
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5... «tori of tushaok
. : ies ee Bes rae [. gy ty aa
eniaigq Seifso tsttenkoved ,soxre af eritinterd ~.b 4
- o68 fear | ork
Tashisteh wert aspaunb anovonst oF tive eide asiguont
Saneflin wit OF ai ede tek Pe) fino x98 tomtorodd st0r79
: ' ; vest
j tama co ecldaag bkae vd ofnt doredne doszta00, a ko Aircon ny: hs
Ese
: sent
ont _disancteb tot swourat wall wmod ogo ra gaits. :
: ‘Nee reap
sumoisivexg todto groms 4s giitved fot ests bontatnao seeeiaee
anal ps Letom
“Sus fnalester Ife de birt ot seetRs. aodoantqed oct ee
« Taoxs oft 02 ueneseoa toda Lis sotyeg. ot bia dmesqiupe
Seoronter been ileig tis to meitaigmos bas noifeets ,aok a
Yeenijogn fps owbol} . analor. 0 BIS eacoltannurot :
UF<9H | Sadi. rowel Smehlbh Lad putvollot ad¢ af sta
ennihliug ytotent. bas. tantt sotad aha ,teoubors déuoe
agcivstS ed? miiw yivoaxs aiotaes of todel base Ealzegam £5
-2notisoliisegs Hbeeht atiw bap Meee mere reas
as
”
nS Rapes Meow sit. te anole "OE BOL ERT nts. to.
» betceoce Ens een: jog Ruow off es xermre sags
- ‘Gins lo aptiveg gathaid = as .woilsizg al sod s
2 moa toned? anoltates Le to aayiete boda :
gayi wach 30 Sat exe tix ,8tot: siooliagsd . ci Bett ecu +
=torliss 8 Meee wO ect to suadosgia Ievourgs edt tasd
i ilkiaas: =o “oediid
eae
: =
di
A=396 Plan of Sauitary Sewer System,
A=397 Plan of Drainage System,
A-398 Foundation pian,
A=399 Detail of Piers,
A=405 Detail of Piers,
A=407 ixcavation Plan,
4-429 Plan and Elevation Main Building,
It appears that in order to enable prospective bidders
under the contract to submit their bids the Plans above
mentioned were furnished to then prior to the Petting ef the
contract, One exhibit in the case was a letter from the
defendant in error te plaintiff, under date ef August 5, 1920,
containing the following: "Under scparate cover please find
Prawings in396, 597, 598, 399, 405, 407 and 429, A407 is
correct for excavation on Hain Building, The remainder of
these drawings should be used for general information only,
until such time as they are completed and checked, which will
be done in ample time to avoid any delay," Plaintiff's bia
was on the unit basis, se that they were to be paid
at the prices named for the material used and labor performed,
The amended declaration, after averring that plaintiffs were
engaged as building contractors with their principal effice
in the city of Zast St. Louis, Illinois, and that defendant
Was & corporation engaged in the manufacture of glassware
with a factory and its principal office in Alton, Illinois,
then averred that defendant desiring to enlarge and improve
its plant at Bridgetown, New Jersey prepared specifications
and plans for the purpose of securing bids for the work de
Sived, and furnished plaintiff with the sae.
The declaration then stated in det.:il what was shown
by such plans and specifications, and alleged that plaintiffs,
after determining from said plans the amount of miterial and
labor required submitted their bid which was accepted and the
contract in question was entered into @ the 24th day of
dugust 1920; that after the oxecution of the contract plain.
tiffs went into possession ef the lands and lots, inen tioned
=
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node re again ke sx to moeit Yee
: % i sig stottebeuro™, Beeak
Larsrd to Ltetod =
,ateid to Listed -@ ¥
sial® moitevacxd. T0b—s
pilbiiu® satel ackisveld bas aaa ASS A
°
‘ort he 3 ) urises tl ofF of solu. ted of betiatorss shea one
‘odd most «peteL a ery euso ont al S kd intro om. -.fosataoe
,O8tl 2 damnsi te stab «t9ebos .Tthtatete oF ters ae seca’ :
batt osseig reves oteneqos tebe tyakwollLot ede’ Maree
*. sebekartss off .actihlivul aled mo OLtAT AGED xo » gorse
<beitoitey todal bra pees Let sotam arti ‘tot Hane. cooing ant ta
stew etitgatats ee ay lLTrieTR tot ts otsaraloed hohaams at :
ostite feutonica «iedd diizv axotemrinaes ati ted os besenag
tmsbaste® gant sus ,stontiil ,sivod .38% tes Io. tte. ol at re
aneifsoitisscs pie ysetab weet wot og tna, pnts a
- 0h Ztow sit 19% abit anise te iik Clk eit rod. anal :
atiw B3.Lsntelq heskehseit eng
awotn ges Jade Ib dob at bet sie nord nottmtefost ot a
.enpe add”
,8iRisninig grit baneifie Sis vsacitseltiosqe bee: r
ain intesdom Yo Stems oft eusdey bism ork
Sig Aner batdeour new Soiviw Sid ~hesit hott faduw
“O- yeb GsSh self se ofak ‘biredae Base ; F ,
etiteig Sositron aaticto mobsuoexo. psi setts tad
ee _ Bese dd cn Mi. asoel ong ‘host ‘edt mh aed:
in the contract where said improvements were to be constructed
and incurred a great expense for equipment, machinery, tools afid
appliances necessary for the work; that afterward on September
29, 1930 and on Noveiaber 12, 1920, modifications of the contrac y
were agreed to by both parties, The dedlaration then alleged that
after the cxecution of the contract and commenceiient of work thbwet
under by the plaintiff's,defendant "furnished detailed drawings
for a portion of the work described in said contract, plans and
specifications, in conformity with section four (4) of said eens
tract, and that plaintiffs proceeded without delay and completed
said portion of seid work in atcordante with said contract, plans
and specifications, and to the satisfaction of the defendant and
the defendant accepted the work se performed by the plaintiff's and
paid them the full price to which they were entitled for said sae
tion of such work in accordance with the unit prices, providing
compensation to the plaintiff*s for such work."
That on April 4, 1921, defendant, without any reason or
justification, notified plaintiffs that owing to business de-
pressions and other unavoidable circumstances, they would proceed
no further with the performance of the Se ae ee plaintiffs
to place no further order for material or equipment or any work
exclusive of the buildings they were then enjaged on, and that
when defendant was ready to prooeed with the work it would notify
plaintiffs; that since that time centracts had been let by de-
fendant to other parties for portions of work covered by the con-
tract; that while plaintiffs had at «11 times been ready and:
willing to furnish the material and perform the labor, yet de =
fendcant refused to yeriit them to do any more of the work they
were entitled to do under the contract; that said contract was
advent2geous, beneficial and of great velue te plaintiffs, anc
had they been permitted to furnish the imaterial and perform
the work according to the contract they would have mede large
profits amounting to the sum of $157,628,50, 4 plea of the --
IOUSTANGS Ss OY
Bes niood .yaeni:iiosn ,¢aamqiors Tok senrona: #
ssdmedgen sto Sigeteiie paddy. jsisor edt 102.
Kspgttes eff) to sHottesitebom. OS8S oh nodniowalt
“ Bike is : fod te eee te HOSES eT Aeb srt sBolsnser ipod, 5
ec be eh OL to: EMSS DTe OO TE oF soartaeg: asst! te —
bar cunitig ,ocmimos thse ak beditogeh anow out. to ee
09 Binge to (4) trot moidoaa adin Xt harra Soe wae: eto ;
Heteiugoo hee. echoed tvoacdhiw heaoecoag avibvalaly gant fas
ban ttispasiteb sid to. ste lia taitoo edt ot fae, aso t20ttoage 3
216 atttisaiale sit YS. somvetreq a6 Agey ond bosyeone Aashuotes |
wiog biae cot baigitas stsweyedt-doldaweod, soite. List oud. atodt Bt
avrifvors .eonliq dine ent siiw osoaebaegoe ak iow. dove
* grow deme rot e*Xtitatelg at od mobs ;
[5 Becreyvwos dvedtiv ~ouskastsb 4, I8er yb Ibu: 1. ted
Gustiteod oF pakwe? dab atiivatelg. he ltiion weotteo
hesooiy fivow Cond ,s6otstseusiie efidahievany solto bap
Siitaielg botts oes sisow sit ho esrmermotaeg oanlt- athe xed
Lew wan co Fivsogk bane Tes Eatved au otis texto. xorldaek om
edd Soe , sa Sex ia sets, one 7 scarlet: pale i ovte f
bas vheet asd sents Pts 3 6 Gerd ovetendedq ate at
~ Of dou , Novel ods. aaoteae bua Lobresemaeds, tak
4 tart Dhow ec¥ Ro Seem cee Ob. od: waded baton, ot doeut
STs ,BATioniate ed estilo Fy Rwy
‘isiveg ies Saicetam ont dadeast of: bed
Sard shrun. oven pated erie oa -
general issue ane notice of special matters of defense thereunder
were filed by defendant.
On a trial before a jury a verdict wds returned in .
favor of defendant «nc this writ of error was sued out to reverse
the judgment entered on that verdict. Plaintiffs offered no in«
structions and no criticism is made of those given in behalf of de-
fend=nt. It is however contended by Counsel for plaintiff that
the trial court erred in rulings on admwissibility of evic ence
and that the proof failed to sustain the verdict,
While the declaration claims damages ohly for the refusal
of deféndant to permit plaintiffs to furnish material and labor
for certain buildings, claimed to be covered by the contract yet
the bill of particulars furnished by the plaintiffs on iaotiion of
defendant states that dcoimages are claimed for the refusal of de~
fendant, "to permit the plaintiffs to furnish any material and to
perform any labor necessary to the excavation, erection and com
pletion of ali plain and reinforced concrete foundations, walls,
columns, floors and machinery emplacements in accordance with the
contract between the plaintiffs and defendent and plans and specifi-
cation made a part thereof as herein referred to in and about the
following structutes inciuded in said contract, viz:
South Producer House,
Secené unit of factory building,
Third antt of factory building,
and e2lso for failure to vermit plaintiffs"to furnish all naterial
ana to perform all labor necessary to the excavation, erection and
completion of all plain and reinfor¢ed concrete foundations, walls,
columns, floors and machinery euplacements in accordance with the
contract between the pisintiffs and defendant. and the plans and :
specifications made a part thereof as herein referred to by permitt-
ing the plaintifis to furnish only a portion of such labor under
such contract, plans and specifications in and about the folloving
structutes included in ssid contract, viz:
a 4 eo
‘ = bs
zi é AS
~y F ou et
atl ne Si)
Sg%2aysI Oo
i
ne a
~ Eh £. OOFE
* bat
@) a) a ss
Y { >"
eg to) rh
Lo Ba
Say Fz tf
iro BOLGOR
‘
etl
aie r
By =* gst Tsk
Si ivivi gH
Pig ansLer
pre tts oF
feen adj vd Serevou ed of bestighs .apakhiied pterzed 0%
aries ov tot Amsinto ane senncinh deht sotata- tippeereb |
Holssbavat sfeaisseo Bsoto niet Bits GEAEE Iie to aokioiq:
umife baa daabneleb bts attttntale ad carted ¢ostinog
bis oof Sextelet alovent se toereds? Jaaq # shar moltco
SOSA oc etonGce beaire tabey bry atste ‘Eis. 71.0 soktokgnae |
Qieirooos wi anoesoelegde eRemiegm ices exood't . arma
isiudoue Yo. setjscog # ‘eine dete? at artitaintg odd ‘gat
stérti Ledosge “ta. eotdon. a. ‘oliesl tev 7
*
i
a
>
‘
mm
.2aabesteb “dt sca {
- 4
wrote: em toinbiss @ YIs§- 2 er0ted iia ‘@ nO j t
|
sua Asve saw stone Fo Jisw efes oe dahie te | to. 0 torst)
eitidatesd tolirer fed no betedns | pea 3
uh mevix, svodd Yo sban a&- amtekd ito ott ete. cask cen
iy xot fosavoD yd Sebasiaon tevewor et sz taibaey aq
et yiiftidieaiabs mo eg¢rkisx at bexie datos Seiad anit
~tolaxer sad. ntaveva of ‘bolist ‘Sooty ots. ‘Hout orm
yitto senrntwbh atteto sotdetcegoes sit siinv
Loixoden dsinkws? of ettitateta tinieg of thabaetaly te ”
“
a
en
Pa)
t
%
Co
—
tel
gk taftela@ sis “ds fate lorie> ara fuel sreg to ELtd: org
stu rnc .detows of et tisaini¢ ses. dtneceg ot" Goeebtet a
Vidoes ,toidavgome, emt oF) Yetesoosh t6dak yas srict+9q 2
bicoon ak adtnoneonlqus! yrontsoas bas sroort, satawSoo Be
ostines bine ak bobs i out netutouss a - aatneLtos
sawol = hits dM th diyet oa 4 wy ae i ns ; ‘
patblind yroront 9 Cae D708G ;
ERLSHG VSotuerl bs ren TEES ST
etiigulatg tluxeg of sielist? cot -osig Baas.
PROLLY GMS wld - ad taeasoem. todal 20s mgotzeq we pees
Sty bist @ashuotah br Sith alg eat neented tomitnas
HextSIsz aieted as lesveat Iteq.e Sham siokteotttooTe.
‘
wa
f eo hinge ogee i Bie ert : Seen
ee tecty tect. fPEae aA Dene Loatt
Power housc,
worth producer house
Batch plant,
First unit of factory building,"
In other words while the deolaration claimed damages only for
defendant's refusal to permit plaintiff to furnish any of the
materials and work for certain buildings named therein, yet the
bill of particulars, alse included a claim for damages bedause
of defendant's refusal to permit plaintiffs to furnish all the
material and work fer the construction of a main factory building
ef the general dimensions of approximately 700 feet north and south
330 feet east and west compesed of three units, while defendant
centended that the detail drawings provided for a factory building
of only ene unit which was to be 220 feet north and south by 330
feet east and west. The trial court adopted defendant's views,
the holding of the court being based upon the theory that there
was no binding contract between the parties until detailed craw -~
ings ef each building were furnished by defendant and accepted by
plaintiffs in writing under that portion of the contract which
provides, “drawings ef the various portions of the sork will be
furnished by the ovner as the work progresses and accepted by the
contractor in writing as a binding portion of this contract®, It
is further contended. by plaintiffs that the plans submitted to
them for the purpose of making their bid, provides for a Factory
building 330 X 700 feet, In this connection it should be remem-
bered that the letter to plaintiffs in error accompanying these
plans under date of August 4, expressly stated that all of those
plans except A407, which was merely for excavation on the main
puilding, "should be used for general information only until such
time as they are completed and checked", It is contended by plain-
tiffs thet plan A397 provided for the construction of a South "ro-
@ucer House and other buildings and showed that the factory build-
ing was to be 330 x 700 feet, but that plan was Bimply entitled
"Plan of Drainage System" and plaigitiffs' contract did not include
ackbited vrotent ote
‘Tot elmo eahannd Somiako nokisieloeb ait of
ents xe Panel dsieivt of Wiidataly 2 kertedt ‘of ial
add toy stewed? Semen sgarhtte dtatteo tot F ‘0
suuobed asgemsh ret miclo a bebuloak vats
gnthiivd yxoteat atax a to moidourtentoo edt x02 adxow: hee
Htgoe bag ditom 2683 GOT ylatemixodggs te énotemenkh La: an
tushaetob slitin .ndinw astdé ‘to peneqmod. dase baw dees
sxkbitud yrbdost « tot ‘bobtvexq pgrelwieb ‘Ttateb oat tnd i
OSE Yd “ciduos bas ddaen ta9% OSS ad of anw dotcw dim sate:
,awsiy & *hebnoteb heigobs x00 fabut ‘ont? “Seow bao tare
east tarts yived? od? aogi bessd sited #209 ods ‘to ai
: werh Betintes ittaw aetirad eld sabehaiahsiris fosttnos aekbars
yf Hedgsooe Sis tanbrteteb wd bad te borne oxow gab Lhd ‘done
foldw torxtnes edd te note rod decid ‘reba ad at eh
od
aad
fiw Wage ‘shi to
be)
uy
atte Yd Savagoos a
$I. .“todttnoo etdt Yo oidtog nithatd 8 es sided ap ee
ot bodtindun saaig an t teds attivninte ‘wd. bebasdaoe ;
Wistoss 2 10% asbivorg , bid «ad oats o—_ tS Be soeseh ‘ott
—HSuSt sd Deionae Ft xoltoanses
Stordd aalinsgumsss taxa mi atte:
“Hisig NX Sabautaeo ab +¥ .“beaideria bruss vasekqnee 6
sox stened 2 to nodtemv ties Sat" ot bobiverg
~bitud grodoct od? taht bowsta Ana aaalbbsiud
: Selti¢as yYiquse sp wale Ioad Sed tae,
phirtoets Poiati wh I onad nay rata bait
the drainage system, Et seens that sid plan A397 did show the
lacetion of different buildings as conteiided by plaintiffs and
while no dimensions of the buildings were wentioned therein, it
is claimed such dimensions could be ascertained by application of
of proper skill to the intetpretation os such plan. It appears
from the prrof however, that these buildings were only sketched
in this plan and that there were no deteaihked drawings of the sane
as providec for by the contract.
Smpert witnesses in behalf of plaintiffs testified that
plan A397 did show the number of buildings and buildings of the
dimensgiens as contended by plaintiffs and testified in detail as
to the amount of materials and labor recuired for the construction _
of such buildings had plaintiffs been permitted to complete sae,
Other expert witnesses in behalf of defendent testified that it
contained only genexal plans concerning a drainage system with
Which plaintiffs had hothing to do; that it was onky a general
plan of contemplatec enlargement in the future and didnot include
such detsilec dravings as would be submitted to a contractor for
his guidance in the work, No detailec dravings were ever sub :
mitted for the buildings whih plaintiffs contend they were not
permittedto construct, It seeis to be conclusively established
that the only detailed drawings or working plan submitted to
plaintiffs in error prior to the execution of the contract other
han the plan of the ey ee were the plans for the con-
struction of the First Unit of the Factory building, and that
those detcils showed such builcing was to de 220 x 330 feet,
The Court refused to admit said plan A397 in evidence
upon the ground that such plan did not contin the detailed draw-
ings ef the buildings referrea to as proviced for by the contract
ana that such detailed plans were never furnished, and hele that
there could be no completed or binding contrect between the parw
ties for any certain building or buildings until such detailed
drawings were furnished to and accepted in writing by plaintiffs,
oe
aid woes bib SOtA asf¢g bise said Bese a
t+! .nierary batodtno: ot B uassthas oti. as
*
eae ie A apate pm
to nokscotiqgge qd, Senisiseose ad Sisoo Bookamscth Sone
i
arssqqs a1 ieig deve vo coksts torgtotak ant oF.
betiotois yYine otev spaliiiod sass fz he stevorod |
OHtt5e out te. anotvesb bodilnish on stew otertt doris ag:
stogzdnos ond bs i Pode
tic} Settitesd ekeiintalg to Bieted mi soasond Ly sons
ag, Listed a boeltisasd pra emittatste “es sebastna east
bE Syarit hot igeat Fuiwncles to eesiod ak voswent ty feogee:
< iit ott lag
fitiw wetaye sueniarh s nulaxsonoo Dyer, harxenss iso
7
Lar UPN ee oe Fly
Esteneg 2 vdeo vaw Jf tad? 7Ob of ynddzod bast ovttindesg
ae bs
obufoni Sombib Soe eustul ot as taonenta tae Seeniqesame Yo a
tot sofsstinos sos Said haiue of bisow 38 sated | pottnteb
fom gtew ett Bbratnoo 2 sttidntetq dist. ‘apabbiiwd acd ‘Re
bedeiidasas vieviewlanos sdé-od aiese FF oe i
+ | a 2 Py oot pe -«
« of bettinduce ante
talio Josttxon 2nd to nottueeze oft ot aolsq- tests “ah wits
“ao ofS tot nasiq od saw wade Teneditedea: ‘eat 29. ase
dodt boas ,eotbityd » crotoa® oxit to, $i sexet ewe Yo not
Me me tg
eis es ee i oe + 2 . be
SRiehrLyve of VOSA nal 7 Stas Jibs
“nah Salirngebh alt aisaade gon BLS nna sans, 2 oad avons by
: hn pares .
bolinjoh slowea LE dow attend, bet) > Sabha
ation moa Ve kd daw ok peers Sra9 oe) 3 DOU
A ‘ k rer ts) a i ; a. » " oH
44 i R patie 5
° ie at
foes
This apvears to us to be the correct construction to be
placed upon the portion of the contract to which it relates.
The same contention arises concerning the Porer House,
which plaintiff claims was to be 100 x 100 feet in diiensions,
However, it is shown that plaintif? -did construct 2 power house
50 x 50 feet for the defendsnt for vhich they were paid the sum
of $4195,15, Under a supplemental agreement dated Eny 15, 1922
a Batch Plant was constructed by plaintiffs for a lump sum of
$31000, The Batch Plant built under the supplemental contract
was only one half the size of the Batch Plant claimed by plain a
tiffs to be shown under A397, The North Producer House was built
under the general contract as was also the First Unit of the
factory building, 220 x 330 feet, For all the work done both
that under the genercl contract and under the supplemental con-
tracts above referred to detailed drawings were furnished by de--
fendant., These detailed drawings were all furnsihed subsequent
to the date of the contract, sugust 24, 1920, save probably draw-
ings A407 hich as above stated covered only tne excavation onthe
main ocouilding as stated in defendant's letter of sugust 5, 19:20
3t also appears that the North rroducer House was er-
rected under a supplemental contract on the unit basis dated Oct-
ober £0, 1921, and that detailed drawings were furnished for this
work.
It is further contended by plaintiffs that the eviéence
shows plaintiffs were prevented from furnisning all the material
and work on certcin other buildings for which detailed drawings
xere furnished and acce»ted. There were however introducec in
evidence receipts signed by pleintifis reciting that they are in
full for work on the buildings in question or in full for final
payment, and se are not disposed to disturb the ver -
dict of the jury on this ocuestion,
Pleintiffs further insist thet in any event tlicy are
entitled to recover for 421 tons of reinforcing steel which it is
‘sd od mofdenttanos Joes108 ont. oF od" as ball
.vwoteior §£ oid: oF sosiines asia to » nots
,BeoK tel of
, Bid Fanos h ad Jan% ooL x aor ‘od of enw ‘ante Io 2
wre silt Siar ay ow ors array ros drsbasted ond Bits
GRE 80 ut Aedah dronoemgs is Jucouts Lage % bed
to mre opi £ TO? Bettis
+ pore too Cagmnie Lee ue
“i Books ac $n Lt inde! ecut to esta ie ‘edt sao
= ite end ‘ fica
$tisd osw enuoli xopubots dtioM onft VOSA. Tehay avon of
aid to die gJaai% od? onie api ue soextaoo faronsp
dtod osteb uxor ale Fie 20% 599% O86. x: 088 andb isd fica
: hee Highah > Wye aera ne ot
ton Igdgomotgdya adi teas bas ioomtiod: iokoney ra
¢ S5ofaloxet otew andiwntb belfisieb of sornotes av aaa ast
ulino moitcrenxe odd ulao Soreveo Sotndea evods aa dob v0
Sree:
-f90 Soteb ektead dteur oft mo forrdnao. sronomoiaque bt reba
gone hits ot Inde ettiisaisia ¥d
(nttsd ey ott Ufo paeicaniw® 1
ME. DAONHOTITL xayower Sra
. L * e eg
WA 3s Yous Jeut suisiaas Bae: TES Riley, ee baagte
”
- Tov om. -; le ders BE ed- Sones ase ws sol
iN i
“ ja aN >
was out Theva: Vig at Sci ai
a
il
her
bi» st Ji dotsy Loote pike 10°
contended they ordered for tie job anc were not peruitted to use.
The claim apvyers to be that 700 tons of reinforcing steel were
furnished by plaintifi of which 278,9 tons were used and paid for,
and the balance not used, The only evidence on this subject
appears to be certain Gata taken from: a letter fro plaintiffs
to defendant in which it is st..ted tnuat pleintiffs have estimated
such steel at 700 tons, but we find no proof whiecn would justify
us in disturbing = verdict of the jury on the ground the pleain-~
tiffs had not been paid for all steel furnished by them to be used
in buildings covered by the contract.
In our opinion the court committed no error in ruling
upon the evidence and the proof is sufficient to sustain the
verdict. lo other errors are called to cur attention and the jucg-.
ment therefore should be and is affirmed.
AZPUPMED,
Not to be reported,
it, out Dt, sottastia tuo of belise-eta etotre tadto ‘ot ~totbisy ©
ot Dott ium ton wae Sus dot, as 20, devebta wat bebmotace
‘ ‘fa sto gees 9t ‘to pant OOY dest od od ax..8qge ainto est
Sieer Bug beans stew snot @,8°S gin tie to stidniotg ae | datatics?
odfdse ofa ao gonohtve wire att ,hsan ton sons tad oni hee
7 COomt tecgelL | -iert novet giat aistrso od ot Se
itee sve eYitiaiale jens bet de ek @) dodo nine Siotsh ot
we Sisow okt) Toet; oat Heit. ow sd laa GOT ¢s foots ove
t2ic sid bawors akc aco wart edt io- +2 stbver p nakdzuders mi bondi
o¢ meds yd Ssdairrut Loots iis ar froad tom bec! exaks
sfoota oa 9nd Yd betevoo. gmk biband | ak
eo
ut oi toute on Soitkaes Fxoo ‘ont ao kako sto al
t-
+
sid mindveauve of tnatsictee al Loot ent Bos Sonobkye ony ld ;
-houitie ef bas of bistode ototstens saem |
6 TY Sa ES :
bsttogex of ad Som 4
xf
TATS “OF” coe (eee
Robe ; Ys \.
/ APPELLATE COURT ClEAK me “y NOG
f — FOuey s Hoa i uc auar
aq
Nols
T>RU NO, 8,
HAZEL MILLARD,
Appellee,
Appeal from the City Court
V3,
ef BAST ST, LOUIS, ILLINOIS,
ARCADE FURNITURE CO.,
-ppellant,
(FE)
"
ee 2 oe 92 ©f OP oe
HIGHIG, J, Appgllee, Hazel lhillard, brought this
suit against appellant, Arcade Furniture Company, to the January
Term, 1926 of the City Court of East St. Louis, to recover dame
ages for an injury which she sustained on the 16th day of
Wovember, 1925,
The cause was tried at the January Term, 1926, of
court before a jury, and resulted in a verdict for appellant,
This verdict was set aside and anew trial granted. The casc was
agoin tried at the lay term, 1926 of said Court and a verdict and
judgment Sareea in favor of appellee in the sum of '33000,00.
The declaration as originally filed consisted of three counts ,
put before the second trial the first and second counts were
dismissed and the case wes tried on the third count which, in
subst-nee alleges that on the 16th day of November, 1925), appeiie
ant vas conducting a genercl retail furniture store on the ground
floer and baseiaent of a certein building on Collinsville Avenue
in the City of Jast St. Louis; that in this store a stairway led
froin the ground floor to the bascment as a itcans of access to
the besement for appellant's eustomers,; that it wap the duty of
appellant to keep this stairway su_ficiently wellelighted for the
TOLATLIA
s 2) echae a So 0 an clliew dete OY ae eb relate 1 Poe x
: : :
k
* > nr , ee
$ etROL: a oh ME. 2: O00,
~ elon mae aes Se ak eh ne ee aoe OE He poe ey
_ CoA cat
99 Lfeata is
4
,.00_ SHNEIUAOE au %
vats ‘ |
+e @e SS 6% «hb RE Oe
abil} 3 finword bart? i foxelt 06 Llpgok ; ae < oan 7,
Burs OFS OF —Fj¥SogmeD saat ici ebeota _imsifleage Janet ye die
i CoC ot tisokd .id tae <0. g2u0D | yiid et to ase. pea
to Yah 23S ert to benksteve ede dio kaly Ysias as 23% Boye
| OSes ae
to" ,8ceL rel vrovaet eft ta bstat sew eames ent ee
JJapiteggs tot Joibievy a at bed fvest bag uaet 2 oxoted etu00
em Suan aft ,fodicr Isiat wea’s bas often tea ong fotbrey ‘aiat 3
foLhroy 8. brn assoD Bian. to OS@L arrest yeat ons to hoing atcpe,
0 ) 00! Si to me 5 et silacgs to tort. ak hoaxes om tony our 7
- PEN if Ro botekanos Aattt yiienkjita eA nokta safoeb) od
oe
toes bas Satii oft Lobtd heaps ong oxoted ce
gauoo Hrd) s8t me beisd is eed. ont ben bocainale
~Tadinevel Jo Bab Ad wkd ao ind asgolis sonsvadia
o1088 cutioms Lister Loreneg # ‘gaisoubaoa eat dims
SUNS TZ) BEAT ERERE AT Stirs ae ud wt i189 a to Sasegatd bee 20082
& skose ‘ahild ok dacs sainmd td test: to ED ott
Ets ag >t
are of its customers; that on the cay aforeerid, while anpellee
Was exercising due cure and eon for her own safety, she was
using this stairway in going to the basement, and that appellant
then undertook through its servant or agent to illuminate the
stairway by means of a flashlight, but that aptellant's servant
or agent carelessly and negligently failed to light the stairway
sufficiently, which stairway was then and there in 2 dark and
poorly illuminatec condition; that as a result thereof appellant
fell with force and violence down the stairwey to the basement
breaking her right leg and sust-ining cther injuries. To this
declaration a wles of the general issue was filed.
at appears from the evidence that on the day in
question whill appeilee was in the basement of appellant's store
purchasing some furniture the electric lights went out. «Appellee
was accompanjed by her three year olc son and rs, J.J.#ddings.-
her sister in law, After the lights went out appellee and her
party, together with appellant's salesman, IncNichois, who was
Waiting upon appellee, returned to the upper floor through this
1, >
stairway, vhich consisted of one straignt flight of steps and
led to the southwest corner of the basement. #rom the foo t
of the stariway there was anaisle or passege-way about three
feet wide leading to the right or north. After returning to the
uppver floor appellant sent one of its cimloyees out to purcnase
“lash lights, snd the seme when secured, were then distributed to
avpellant's salesmen, It would appear that other customers who
were in the basement when the lights went out remained there
until they were cenducted upstairs by salesmen ecuipped with
flashlizhts, Appellee testified that when heWichols, the sales-~
man, was supplied with a fl-shlight he suggested that they return
to the basement and look at some more furniture, The said sales.
however,
aon ,/ testified that apyellee suggested returning to the basement
tow
ané that he objected, but upon her insistance they did return.
appellee was corroborated by her Sistcr-in-law, that it was the
9
rate at to ks cod
athe SLO ai AB: todd - paak dibs SotankewhEe 4 ehioog
‘niveteut tao ated ae: ime gel es cor Yakiaome
tren atuinil ofidoote att sist in? soos pitssslot
mort, ,tressesed eff ke tamrros Saandiane aald: ot: bet”
ines Tongs isa wd eek ‘at gee bedoubads ‘omoWw yous Lkiras
es peed
rn ToaeG FARE. eh
sa hkst
ated? hes odd enw badetints ote dodely celmnotot eae
a’ yYowsksso ed} seed eonafobly pag goto? abe £fe%
polt? ecw aueel Intaces’ att to adie se aotterasoed
jest: sonebive oft mort ereecge TH" <= 2)
loiqe to tnomoend ent a sew pstlleq¢a Litiw aods aap:
eyi bre ope hio taey ead? sted a belnaegmoson: ‘aw
“5 ¢uw trow etdyii oz rod LA : omen ag sotaty: roe
roto Aamo tee 6 *sncileggn ad tw wautdogod: ong
sooft teqqy ot of Dominges .eelieg¢ds nour: peiks bam
capit® Iigteuta sao to boteleaes dokmr eats
We O93 ABBY so eleiens usw exon warktnte. eit ke : J
westA- decom mo Frieda: odt-oF pabbael abiwy. 4
isavol@uo afi to one save tasiisera <o0tt noggitt nt
iems oigy betsass. tec amish -ead srs seodgil Aout ;
fous Sect tveqes Bivow #2] jaomuedee @ "iaekbouee
ie. Git ££ ott epsciye Jnomdead ould "BE oxow
‘ioiie:i sodwitact beltibtaed sellsegga. ends Slee te”
eteoggue of - tdetbisk LY « Asie bebigque aps, : ee :
STUSLIP?T stom anog - 3
MEE UES. Soest
r
p MS LE oe EES
saiecsman who suggested they return to the basement, The testimony
of appellee and her sister-in-law is that the sclesman started
down the stairway with the sister-in-law imuediately following
hia and appellee with her three year old son in the rear. Appellee
ana her sister-in-law both testified that the stair-ay was very
dark; that the salesmen kent the flashlizht directly in front of
him, end when he reached the foot of the stairway turned to the
right up the aisle to the north and thus left the stairway in
darkness: and it was at this time that appellee fell and sues
tained her injuries, KkeNichols, testified that appellee was
imnediately behind nif. as he went down the stairway, and that he
80 walked and helé the fleshlight that it wes © directed back of
him so as to lisht the stairwsy in front Ries He also testi-
fied that appellee was followed by her sister-in-law, ana that
anotner salesman with a flashlight in his hand was coming down
the stairway back of appellee's sister-in-law. 3; that appellee's
child began crying as they started down the stairway, and that
when appellee was within two or three steps of the bottom she
attempted to quiet the child, by slapping or shaking him, and
it was then when she fell; that he attempted to catch her, but
was °°. unable to do so. This witness wes corroborated by
gnotner sal<«siuan who testified that he was immediately following
this part down the st-irway.
Four grounds are presented by appellant for a re-
versal of this jud;ment as follows: (1) that apzellee did not
show by a preponderance of evidence she was exercising due care
and caution for her own safety, just before and at the time of her
injury; (2) that she did not prove that her injury was due to the
negligence of appelian*; (3) that the trial court erred in re-
fusing to give four instructions offered by eppellant; (4) that
the verdict is excessive. It is claimed that the evidence shows
appellee was not using due care and e:ution for her own safety
for the reason it appears she knew the Lishts were out, and that
a.
Nwow ace Ye siate ett dadt beltiteed ciad welmabisdabs 5 ted
af dr bus ,yornists sdf avob tase orf “an a 1 fitkdod fed fai
to ford Seteot hs ~ m $2. Seif der fstanet iid Sted: ‘omy bosttow i
: bs
~it eer: oats: ok be ~ te. ton? ai: Yawkiewta say sive Ot): ae 08
sate orn yatislent—tedeien sed Yd fewelto® wae eokingme dat
mwosh yataes cw eet eiei sik triskfiesrt ‘Be shin nasinaias an |
| s'ealisccs taki 7 wilt vedete 2 selfegge tes ose isan
“ bas ,.“yowriciea ely awok SséteJda wot aa: ankeso naged %.
ada siocvtod 13 So agate gourd to oi mal iw aw ential
bas; gt sniustle co Ratega tds Yd ipit ide oly chia at a
“eS to} tip liogys: ue £ Wenig ote ebaitorn Da, eee
jor bio sellers tant (0) teweliet-ga Prony batt, wists : 20
SEso id inh!) a ecw. orla: eonebt we: Yo a ee al
eae SO arid wild bien
4 Dit OF “Sih, cagw agru Labs
iT he sees typos
203 ({3.) 42dcts i Louts Kes hove hth wnototee ae sue ‘nied
Svea eopshivea cots tadt boskeke. ahh £04 owt sesoRe Ok
Weise oo sod wk: soksure Ga pias:. ox gu Jon
~ Riecis& Om i: Oke atou: as ELH. och
the stairway was dark before she started to descent the saije,
It is true thet the evidence shows she had such lmowleiige of her
surroundings but it must be noted that the negligence charsed
by appellee is not a failure to light the starway as she vas des
cending it but the alleged negligent act on the part of the sales-
man in turning up the aisle to the right after he had reached the
foot of the stairway, and failing to keep the flashlight so that
it would shine upon the stairway, Both apvellee and her sister-
in-law testified that the salesuan was several stens in advance
of appellee who wes a large woman weighing 250 pounds and that
the sister-in-law was between her and the selesman. These alleged
acts of the salesman wes clearly something which appelleec ould
es foreseen as she started down the stairway. If appellee's
injury Was caused by the action of this salesman and not the
failure of appellant to properly illuminate its stairway, the
jury wes justified in finding appellee was not guiity of con.
tributory negligence if they believed ner and her witnesses,
as the verdict shows they did, As to appellants second contention
that is that appellee filed to prove her injury was due to the
negligence of appellant we are of the ovinion that if her injury
had been shvon to have been caused solely by the darkened con~
dition of the staircry, this position vould be well taken, if
however, it wac @ue to the action of the salesimn in turning the
flashlicht from the foot of the stzirway, tue wosition would not
be vell token. Upon both of the abore cuestions of fact there
Was conflict in the testimony, Appellee and her sister-in-law
svore to facts which if true, sustained appellee's alleg-tions in
her declaration of negligence on the part of the servant of appeil-
ant and due care on her part while appellant's selesman, HeNichols,
swore to fucts testified to by appellee and her said wit-
ness, licNichols, was corroborated to a considerable extent by
We H. Symonds another sslesiman and Cora Lipount esshicr of appell-
ant, swore to a siatement made by appellce soon after the accident
which waa to soc oxtcent contradictory of her testimony on the
atoiate ted prs oelfouge fyod Law hed 6G. iit’ Og ie
gom.vie of acode Eptover epy egetee one roid bok te,
fnate ebavog OaS pakiyiow smew eptsl a sow Bait.
a9 F
ay maka ab asunetes alt
icon: :
erm oLtrew SS £EOL One ,¥
P sod = as A
Lots “SOE 25.8 20 £ Bak 25)
isferienotata axon bees satisdak curombsood oil — if
as
MG tdodae side nbiaaos
“fifsuis 4 ssidacn S1sHoy wht gro) brig
FieS L7G ae Tovia gece solfegde “Ey
MLS AO YRndi zoos won 30. GEasS haa Say.
trial. The jury sav all these-witnesses and heard their tes.
tinony and were in a iaueh better position than we are to de«~
termine, wiiech ones were siore wortuir of credit. They decided
the preponderance of the evidence wos favorable to the sik
tiff, and we do not feel that this covrt is in a yOSition to
el
over=ride the verdict of tue jury in thet 6Zare,
Appellant ofvered seven instructions anc the court
refused four of then. he three instructions siven cic not in
any neanner cover the question of contributory neglizence on the
part of appellee, nor were any such instructions given at her
instance, The first of eppellant's refused instructions stated
a generel proposition tiiat iv one goes upon the vrenises of another
by invitation anc is injured by reason or soe defect or existin::
dangerous condition wiicn the injured persou knew to be danserous,
danages cannot be recovered for the injury. This instruction
men advised the jur: that if it believed frou the evidence that
while appellee was in the store the electric lights ceased to
burn; th-t anpellec expressly desired to go to the baseient, and
that apoellant procured e, face er Waien but partially Li-vted
the stairway, anc that appellee Imew of these cenditions or had
1 :
imowins ther as appellant; that notwith~
As >
the sae opportunity of
stendin:; suc knowledge sas ctteiitec to descend the stairwes and
was injured . While so coing, then she covld not recover any
danages, This instruction does not apoly to the case stxrted b
the ceclaration, upon which apoellee aust rely, Which was that ner
fall was caused by the salesiian so turning the flashlight at tne
foot of the stairs that what light it did give was not reflected
upon the st:irway. The second and tnird of adpellant's refused
instructions arc along this saie line <néd ignore this sate eléuent
of this case aac as all these instructions directed a verdict, it
seeus to us ther wers properly refused. "An instruction -shica
nresents a different cuse froi: tuat declarea on, is erroncous?,
Schnidt v, Balling, 91 Tll., App. 388, The fourth refused instruc -
jury
dsiogs stated aiong other things, tuct if the “believed fron the
evicence - = - = = - = 8 =e ee ee eee eee eH eee
- ah ae rs gh Mone sty Re rete bss 3 oitdea” SOUR nk ‘erer,
-
Sabipes ‘rom ~.didans’ 6 “iderow ‘evel exer Sas stokiae FY
" rer a¥ | ifacow: +22 ee gonrcb hws: ear to sotirr abitog ete
at maks ! ak of gahboe etht gach Leek ger os amr bas
| huoeat sace me ae oie 0. fokbxsy bas ‘abt
x! J urerj our heck coved Sere eia sd on LLoergt
ek tom SES 1 uae ty, proitserderk Seads oo Scart te nator tise
act aa Socéeilesn wishribetaed Te netiaesp omy 18¥00 | a9)
sort te mevtS, “esto Hourésnt deve eas etew ton: calle on
i 78 andivovasadh bsdvlot eins tleqggs Fo! duxkt ad?
eerie =o 248 . Gib Ft
Sndduras tO oO 2ae Sipe
auoieiiinh o¢ Of wats vesioy bertal sav soe 80£3 £00
og torrpenti- eiatt ° ne Nas silg vol Ssxevoost od donne.
tict ‘gonedive aly poat bewekLed Jf Tk seams Yaug sas boa tvhe,. sc
ul
of Soacso ktrkit orgteoets
e4
beri to ssokii ices seat? to weet selfLocgs Sats! Sas « caeiaes am
wtiviwten gait witriLoqges es regi tukwordl Te eo Lapdtoqdo. ote ast fe
bas ‘owetata end beooued of Set aodts ete apse iver Sone ae
Cts govoags dom bio sia cond .antoh on etiaw” ‘somutat :
a8 a8n0 aid oF viogs ton seo a iajatinle abet z
to Pigs acw cadet: \xflor Fou osiisegn tie brew oes oontniatged git
oar 1G ee hivierty sata Pyke EEF He nevada ony vd: boanio sor Kiet
bstoeliat dou aav evig bth S2-TeekLl Fete are ends eo a axe to. | |
ASGNTet eliastiec.s to Sehey bes Baooes: ear 4 naene ste ects
Meelis sis8 Bh orenek ban sail eee wees aie ote: ‘anoks \n 3
hy g bolostis anokaguisant ouact 1 ao 556 e800 ote
Pi iby tir hobtoos tank oA® DAsurror «<Ireveay otaw cent
"BNOSNOCIS @£ .moO Sevekoss snd (OTE atid | Hose TAED
~oosnient beastei ddtot off .65e Rese | as ie | |
wast
aio Liogt Sevabled’ eds TE facs Passes ocido
- ~ - ~ ~~ ~ ~ ~ - ~ ~~ ~~ —_ =
appellee knew of the conditions with reference to ligat and noi.
withstanding such knowledge attempted to descend the stairway in
question then the appellee "assumed whatever risk there was",
This instruction was properly refused as the doctrine of assured
~isk which it seems to invoke is only applicable to cases aris-~
ing between master and servant. Conrad v; Springfield Ry.Co.
249 Fis. X25
While the verdict may be somewhat high vet we do
n-t believe that we can held it ‘.. is excessive under the
proof in this care, It was shewn by the evidence that anrnellece
suffered a fracture which extended into her ankle; that shewas
unable ta be on her feet for two montha and even then wes coia.
pelled to use crutches; that ner ankle was still at the time of
the trial swollen and painful, enc that this conditien - may
last for a yeor or more from the time of the Aes In the
case ef heyszels v. Chicago City Ry. Co. 177 i112, App. 534, where
the injuries complained cf were very similar te those shown by
the evidence here, a verdict and judgment for 32000 were sustained
by the Appellate Court from the First Distr’ct and while the
verdict in this case. in our ered nay be large. we do not
feel jutified in helding that it is so excessive as to warren
a reversal and ve must therefore affirm the judgment.
JUDGLGNT AFFERMMD .
Net te be reported,
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bisiteantyed :v Besach Teese bras sot eau nsertel gal
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4 TOs ovEtasexnea BE "ob fort neo ow starkt: ‘stot id
soffoges tat oonabivea ods vd swede asw $Y. ,ouge. ekat at toes
iWon tech saiine ted ofak Bebaedxe to Site stutoont & rete
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oo ul ,yietri ond to esctt oft ort orom to "ay 2 to% gent
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VG Owoory eRnody is web Rete YIev stew, >. bontalgnos ao fas beck ‘eeu
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wid “elirw bac totutgid gecki off nest fape8 stslisqgh size yd ~
¥ aE caret of Yeu woteige a0 ab Jesse elds ni tolbgey ~
¢ er i 85 sviaasane Of BL FE. eatt natibivd ai Hoettig rT Co {90% a ;
VAomyoNt ot ersitie oto texeds veut en: bie Isexover 6) 7
hotsogen of ef SoM
2 2 Te Creo EG EON CO ai
THE PROPLE OF THD
STATE OF ITLINOIS,
Defendant in 5Srror,.
RIT OF ERROR TO, CIRCUEP, COURT
or
MaDISON / COUNTY.
VS>
EARRY CLARK and IR JIN
EATRIDGE,
Plaintiss in Error.
OPINION BY HIG3u., Je
Pleintiffs in error, @arry Clark and Irwin Ratridge, to-
gether with Stowell Beach, were indicted in the circuit court of
Madiscn county, Illinois,for violation of Section 1 of the
Criminal cede which is Section 1 of "An Act for the protection
of bank devositers." All three of the defendants named in the
indictment were found guilty, but a new trial was granted Stoweli
Beach and the case against him was afterwards dismissed. The
indictment grows out of the failure of the First State and Savings
Bank of Woodtiver, Illinois, and the same conditions in substance
exsist in this case as exsisted in the case against these same
plaintiffs in error in which an 9 .inion was filed by this court
on March 31, 1925- The verdict of suiltyas returned by the jury
found each of the persons charzed guilty anc fixed their fine at
- 290,00 each, and imposeé an additional penalty oe plaintiff
in error Eatridge of ene year imprisonment. The court enterec.
°
EEE ne a TOs ws
PS Oe ee
Bt oNTPranee Soiree ee a
te 7 TOD a p . if ey Ftd
ne
Pa moran e Te. at a ¢ how ye
mh. hh Yh, tt :
+ oe Ws SEE RISATaneneah. Meo oh
ke =) a” = z
> eee Secor wc ke 8 2 A Pace ag 0
% yt “ ii pip: Ere. Ses eee aie Ue ee Ue Sta eee . pipddgesapnnd
ra M AGRLOR
\
“ERT TO BIOL aRt
_ gSIOULiTT TO arate
ators ‘of teabnet¥ad
TROD VIUOALS OF AHORA TO TIF
5 ay
WE bite WAG YAg
yl OTE REA
sox at eatiatert: se
2
RN NS ON
ob , cfOLH Ya SOLRITO
mot .ombivist ciwel bis tigl) Vxish ,torre «at attitntolt
io yigoo diverio ot of betothai extow ,foaed LLewote dtiw tedton
oid to £ uottoes@ to soitsicty tok, elaatiit etasos moe tbaeli
mnoitostorgy ent «ok toA ah "eig. I aottoe& af dot ctw ebeo Lantnixd
ig of bomex. atashioteS edt te eexdt ILk ",exotiaoveb dod to.
rlowese Betasts easw icoitt won es tod wins Basot - oxew tuomtol bak
ont? -Seenivedh ebtewredts saw mia ventians sesso eit bras donk
Parives Six a¥ese tealy eis TO ori tet edt to tue a0 tno itethuct
be mt enettibaco onied edt hxs ,efoniif{l ,xevitboot!. to xaadt =
omnes oeedt tgontess oneo sit at betalexss eb eass ‘eiat ot tales
vases aids yo Beffit ees moinice an dotee at tonte of attivatele ‘
Sat od Bada? eeytlinn te toi sicoy asdf 2aeer , £& so Tali pe:
tieid Boxikl Sas ytlinog bereede ano atag out to no8e Brsok
ttttnisiq of es . utlexee fasciitis os semcent bas ,fose 00,008"
Seisdes troc5 sot - «hyeuroaingnt weey om to aabitdos onto ad
<P a
rae
judgment on this verdict fining eech of plaintiffs in error
$290.00 and sentencing piaintiff in error Hatxidge to imprison-—
ment in the Southern Illinois Penitentiary at Chester for one
year or until discharged according to-law. Since the record
in this case is in all substantial matters the same as the form
er case above referred to egainst these nlaintif’s in error,
and since nothing nas been callea to our attention changing
our opinicn as to the csrrectness or the ovinion rendered in
that case, we adopt, so far as appiiceble, the former opinion
of the courte
The only difference between the two indictments is thet
in the present indictment plaintiffs in error are charged with
accepting a deposit from one Emil Krauss ot the sum of $145.00
on Cetober 23, 1922, knowing that the bank was on that date in-
solvent. The history of the bank from the time cf the acventing
of the deposit in question to the clesing of its coors on Nevomber
17, 1922 and during its Liquidation, as shown by tho record in
this casc, is fully set forth in the fexrmerx opinion in this
court, and it seems t: us to be wholly unnectessary to incorpo~
rate the same ih this »ninion.
Plaintiffs in error devote no little portion of their
argument to discussing the contention that the closing of the
bank was due to unfavorable business conditio s and not to any
miscenduct on the part of plaintiffs in error. The cause of the
insolvency of the bank and of plaintiff in error's contribution
thereto are immaterial. The material issue in this case is, was
the bank insolvent on the date the deposit was made,and did
plaintiffs in error know of such insolvency when the deposit was
accepted, and was the deposit lost to the depcsiter?
It is earnestly contendec by plaintiffs in error that
the burden was upon the people to show the insolvency of the bank
on the date in question, and that the peo»le did not meet this
a>
i , se ee at
ea is r aly 4
store of api ate to
WO MT TePBoth te yastisehtaetl Bs oe RET syeieteioe batik aR
G-roc ett 2 .wol ow enibroons beguadbers gitag sis
ams ext Sa enaa ott enetia fathietidae fie mt et “ORR. ‘Sisit Fed dua}
aoe a serine ‘ceade fankens betcotle: emnds: aane: me
x Sit hae ja seo feed ear giddom eo icra baa,
Ry tanite y rors as f mross “to ont ot ses motatee EEO: ai
tclaiges coiext sit volisaliqga 28 Tat Ga (sae en 10880. sae: 4
ohh: 00 oat. ». a
oysid bys ry woah owl sd? meevted, soe tatters cae oat. Sine
Sty * OD pte cote of etht ditede Sxemt os Sat inene ng a on
CO,ga5) foe eft to segecd Lint poo moet Jiaoged, a aniktaees
2 adah Veit ao esy Aned edt sem 3 natwona gaSO@L | eS sedtoto? AO,
ftdigese ht ts euid edd mort, shoad pat. ho [monet aan: ‘tana’
Be. eeod 4G qiiattlo ect of goidmanp ah dt eogeh oat ee
i Srowei it awode ¢6. ,wiisebingsl edk ied) ‘bow SBOE, as
aidt ah sofeteo sorter end af sina vee “et Lae peekace!
room .ot wrareer sige ci fode ad of pa aut
‘tad? to wobbrog actsi! en eteveb, fo%¢e ah sttsateld |
eit To snteote-om ted? soi tadtgo@ ent attieesoets a¢ Baie.
Yils oF Toaman # Olt ibaco saenhene ohierowerge, oF 90h, sew, aoned 5
ods to-2c0so BAe .xonte sf aliicsiaig: 26 Pay end: oe tombqeos fm -
. dinjoo9.s' sorte.at tWidaieiq. te bos gad edd 49, woaar toast.
Say | ogi 526 iid. ok eee t feivatem 997. -fatretamat’ ona are
‘ Beh ise, of eiw Jisovea oct eteb
ow Fieoces..¢ “eB
He ye. ah as
ech i strids LBC G at LIB OC
es ott te godevivent odd rate of oly a5 9 Te
teen Tot BLh otoogg edd tact big sneataea, a
kurcene
In this case, as in the former one, the testimony of the
witness, Slivka, is largely relied u»on tc establish the insol-
vency of the bank uyvon the date in question, and his testimony
ard other proofs on this question are substantially the same in
this case as in the other. ‘The witness, Slivka, it is true, did
not testify in detail as to the investigation he made as to each
note, dut he did testify that he had made an investigation of
the unvaid notes and was of the ovinion he could arrive at their
Wetue as a whole. We are of the ovinion that there was ample
evidence te justify the jury in believing beyond a reasonable
deubt that the bank was insolvent on the date in question, and
that the plaintiff in error knew of such insolvency and there
sontention
is no/ . ' that the deposit was not lost to the de vesitor.
:-contendea
Ete ef Gar . ° that the indictment charges that the de-
pesit was mace en October 23 while the preof shows it was made
on October 27 ane that the jury by the instuctions was required
to find that the bank was insolvent on October 23. It ap dears
that s@ne cf the instructions refer to the insolvency ef the
bank on Cetober 23, yet most of these instructions oertained
the following: "It is sufficient if you believe bLeyond a reason—
able doubt from the circumstnnces in evidence that the bank was
insolvent at the time said deposit was so received.” Further,
several of the instructiors offered by plaintiff in error alse
refer to the date in yvestien as October 23.
Even if vlaintiffs in error were in »osition to complain
of this discrenancy, yet ve are of the epinion thet sconsidcring
the instructiexs as @ whole they were not prejudiced thereby.
The samc comylaint is made in this case es in the former,
36
22 eTOMLE Task m4 , Ts “y ‘ alt sf . Spy 2889 iad of ei yt
aLonces deiids? : ‘or pakiet vflostal af svile pepentie 8
; : " MSW eee nee Siok ie
= ghana ele =F mitaging sf efan emt 1 ied oo he Yous
ai ouiee odf Vifateundsdas sic wottacdy afdd wo ateoug vende Bas!
; . ; see ws 4s lhies ee
»autt ef +b evils”, 4cecciw off -.tedto Sit af ge Saae ekar
: ; ; ; ; ‘ ; er a ae ce cs) We
920 of-se@ aban ed metas svi adé St -aa Lfeiob af Uti seert slicu
+3 ttanitaowsk as of her ed ted «tifest ae oF ton ota
‘ Ur Ms Se
Se-eyitee Bfacs ea sokaieo edt To eee Ban ‘Betos ptemw ont.
- “ pe a Pan ny es " mal eee 4 Sad
a ear Bord AS + rar any STS BF ott Foite x ee nse
jidaxcanet s bthyed gukrotied Af Wark ed vanedit se ‘eotoBE¥0
5 matt ext tf SS ark ceo. hvevyBRoent way shore? ety tend Saien |
rticd3 Bos zoaovleent sown te watt rere of Shen eeie aff fet
no ttretaop a
»Tetivaged eft .ct teot tem saw Sineged oat Saat \on "Ty
pobastave ar)
~ab add tact esos tromtoibet sit. fades Ng ar, Hane
Ag os ay O48 i alidw &&8 tedofo0 om sian aaw Heer
exits itoutent © J yxut act cad? Soa. ¥S. zedpgo0 meas
ig@o.gs @ OF a0 ioaxt eaw tasd eae Ft aut pabecee
any i9 Yoaoy i tf Scr od 5 tiometent ait Xo atest
Thad ae are I c > taon toy ,8& tedete 0 go: game,
EME EBT 4, DIS ES esa ai ‘tise ef #3" sgntwoligk eit,
: & Ly Sock emmMotto edt next tdreb sida,
gry Pa sf: z ;4 g 4. 3 Ha 5 ay iii + 2) xt + 7 trovicaak
oad oitogrieat edt to Inseved-
: £ for
; - ~ 3 - *% ROVE
put d re ro a6
a fea 98 Pet — er § Fin }
that the verdict was improper in that it fixed the penalty. As
held before, that part of the verdict may properly
that the verdict was improper in that it fixed the penalty.
As held before, that part of the verdict may be preperly consid-
ered 2s surniusage. It is also contended in this case that the
judgment of the court was impreper in se far as it attempted te
fix the time for which pleintiff in error Hatridge should be
cenfined to the penitentiary. This is not such an error as td
necessitate a retrial ef this cause as such judgment may be
corrected by the trial court under the direction of this court,
s® as to make the >rison sentence of plaintiff in error Hatridge
an indeterminate one in accordance with the lew. (Armstrong vy.
Peeple 57 Ill. 459; Henderson v. People 165 Id. 607; People rv.
Boer 262 Id. 152).
The judgment will therefore be affirmed as to the plain-
tiff in error Harry Clark. As to plaintiff in error Irwin
Hatridge the judgment will be reversed and the cause remanded
with directions to the trial court te enter oa proper judgment
in accordance with what we have cboeve said.
not to be renorted.
Mia a cat
oA WET inceg ost Soxik #4 tort nt te orga enw tokirer
yitoqnig em talbvey eat to bia. teas is oot
walt tad? omen sity of kobe tnan nals at ¥F -ogseutiava
_ fotemetts fi es tat ea at teqeiqnd eow saad ost. 20;
et Sines enSintel torre af treidatsle ao ide tot oaly
ch e&@ 1Cxte na deve gon ‘ef ald? .yxettaetioe on? ot.
eg yan txemabal dave es eaveg etdt te Satater a oops tae
Per?
,tuse aidt fe woltostib oft sehay damog fata eae we bots
enbitish tonto wi 2titutstia to eqaedieg moo kar ont exam 0
+¥ Beoutdaara) .wal ent otin somebroses af en ot
-y aleoet 3708 .6£1 Gal efeook av noatebaok A8OD ue
Try att ot en bosrcitte ed oto Rete at Lhe taacabet oat
“iwey torte ar Teitntnigq of BA #x0L9 gree rote i
foSinred: seuss od? pra foeatevear od Ihe topmabag eae
faaugbyt roqdaq 2 veane et Sisco Inked ort of anette
-bies oveds ovet ow fadwaidiw sons
f 4 ‘ 1} I | cS : [ r iy
/ ? i * “4 = = estes jt by
f ) : . | | Aj at 2 a 257
; f ay eee
: / ff er r F ‘ - CL E \ \ ry > VN AS Pe
— STATE OLRAI L Lit WA 1 Sot OHI SIS TRICT OF A ERURE
APPELLA@tE ‘feootR,
FOURTE DISTRICT.
MAROC HT BRM 5 Ab Dod 82 7
TOR’: NO. 13. ACENDA NO. 5<
LARNER LEEDS, )
Avpellant.
APPEAL FROM COUNTY COURT
VS6 ) OF
WABASH COUNTY.
GLEN NADING ‘and ‘
PAUL NADING, )
Apyellees,. )} ee
)
OPINION BY HIGBuL, J.
Appellant, Larner leeds brought suit in repievin against
anpellants Glen Nading and Paul Nading before a Justice of the
Peace of Wabash county charging in his affidavit for replevin,
that he was lawfully ertitled to the possession of 200 bushels
ef yellow ecérn and that appellee wrongfully detained said gocds
and chattels from him. A weit of renvlevin was issued and duly
served, a echanse of venue taken to anothcr Justice of the Peace
Gid a trial had on Jamary 2, 1926. The Trial Justice found
from the evidence that appellant was not lawfully entitled to
nossession of the prceserty reolevindd and ordered that ea npellee
have and recover pessession of the samo. On the day of trial,
a writ of Retorno Habendo was issucd by the Justice. An anneal
was asked for . to the sounty court by avvel‘ant, an appcal
bond execute by anvellant, with a surety, which was 4p roved
and filed by the Justice. The parers in the case anc transcript
of the Justice of the Peace were eertificd by him to the county
Che 1 ke eee ye a
ae amt at ee soem bor slapper enone ri aeide i +4 ‘ “pe
C225 .0 A.) OS BO ee
. 3
em ite nan ee ee ae ae i en nines mag is a een ame wtih le Alten mam a ae
See ee ie
4 ae
Ri
‘
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court, the certificate bearing date of January 22, 1926.
Upon the trial in the county court ap»ellees, by their
attorneys, entered a motion in writing tc quash the writ of
replevin and dismiss the an-eal for the following reasons:
L's The court from which this action or cause was appealed
had no jurisdiction to hear and dctirmine said pedis in that
no demand was made by the plaintiff of the defendant er either
of them for such proverty before suit was begun, as is by law
required.
Be This court is without jurisdiction to hear and detirmine
said cause, in that the matter in difference is the adjustment
of partnership affairs, such matters being of the jurisdictien
of a court of equity and should have been commenced in a city
court or circuit court.
Be County courts have no jurisdiction to hear and detirmine
questions of dissolution and winding up pertneorship affairs,
4. that ene pertner. of a partnership cannot maintain
en action of replevin against a co-partner during the term of
rmination
ef. permina ts of such co-
such co-partnership, nor after th
partnership until after their partnership affairs have been
previously adjusted.
5. The anpeal taken in the above cause was not perfected
as is by law required and should be dismissed.
Ee Ana for ether and further good causo to be shown to the
courte
On the hearing of tho motion, the county csurt granted
the sama, dismissed the appeal, directed the clerk to issue a
orocederndo to the Jusitce and entered judgment against a .pellant
for costs and he prayed for and perfected ar apneal te this court-
Appellant assepts and the record sustains his clain, that
appellees introduced ng eviderce and filed no affidavits to
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suppsrt seid métion.
As te the fitst réagon absigned hy appellee for the @is~
missal of the eaepoeal, it must be borne in mind that a demand
is not always necessary before bringing an action in replevia.
Kee & Chapell Dairy Co. v. Pennsylvania Co. 291 Ill. 248; Crans
Ye Kroger 22 id. 74. Whether a demand was made sr not, was a
question of fact which could not be taken for granted from the
mere statement Pelion that no demand was made. Whether a
demand was necessary would alss have to be detirmined from the
facts in the case énd there was no proof on this subject sub-
mitted.
The second, third and fourth reasons relied on by anpoiless
in their motion, are all based on the theory that the suit grov
out of differences which arose between the parties ctver certain
partnership affairs. There is however nothing in the record t%
show that any partnership ever exsisted between appellant anda
appellees and the ceurt could not detirmine the question raised
by points 2, 3 and 4 of the motion without o~oof as to whether
such a partnership had ever exsisted. Point Number 5 of the
motion states that the apoeal from the Justice of the Peace to
the county court was uot perfected according to law. It appears
from the transcript of the Justice and the papers filed and
certified to the county court, that the appeel was prayed for,
allowed and the ap»neal bond filed with the Justice and appreved
on the day of the trial. Nothing then remained to be done but
for apvellent tp: pey the feo for the filing of the transcript
in the county court and for the Justice to file the same in said
courte It was necessary for annellant to pay the Justice of the
Peace tho filing fee within 20 days after the judgment was
entered. T.o record ghows that the case was tried by the Justico
of the Peace on January 2, 1926 and the certificate made by
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baron ge Sy6 seltesh est div BeLze Sno faeces edt bos
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him sand attached to the transcript, was dated January 22.
1926, which would be within the proper time cnd shows the pay-
ment of a filing fee. It is however contended by anvellees
that the record does not show that anpellants paid the full
amount of five dollers filing fee required by law. This claim
is based uyon an entry in the transcript under ths head of cost
as follows:
Piling fees for Co.Court, naid by Larner Lecds, "3.00
There is nothins in the transcrivt of the Justice of the
feace or elsewhere in the record to explain this item. Apnellees
interpret it to mean that only $3.00 of the required ‘5.00 was
paid, while aspellant insists that it shows that the fvll amount
of ‘5,00 was paid as the filing fee. In the absence of any
further evidence on this subject, we must assume that the ‘ustice
of the Peace did his duty and collected the full amount of the
filing fee within the time required by law, for otherwise he
would have had no legal authority to file the transcript and
other pavers in the county court, as he did.
The courty court erred in sustaining the motion of
avpellees and dismissing the ap-eal from the Justice of the
Peace with judgment against annellant for costs.
The judgment will thorefore be reversed and tho cause
remanded.
REVERSED AND REViANDED.
not to be reported,
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