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Full text of "Illinois Appellate Court Unpublished Opinions: first series"

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Digitized by the Internet Arciiive 

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http://www.archive.org/details/illinoisappellat285illi 



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PEAIkTROM 
SUPERIOR COITRT 
COOK COUNTY. 



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37910 / y ^ y 

THOMAS f SRRY 

Plaintiff - Appellant, 

T. 

ILLINOIS OSHTRAL RAILROAD OOMPAHY, 

DttfezulaBt - Appellee. 

Opinion filed Deo, 27, 1935 

MR, JUSTICE HEBEL DELIVSRSD TH£ OPIKIOH OF THE COURT, 

Tlile is an appeal lay the plaintiff from an adverse judg- 
ment entered in the Superior Court of Cook Ooxmty upon the 
motion of the defendant at the oonolusion of the plaintiff's 
evidenoe. The action is for damages based upon the "Federal Hours 
of Service Act," which oalces it unlawful for any railroad to perait 
any employee connected with the movement of any train to remain 
on duty for a longer period than sixteen consecutive hours. The 
plaintiff was a laborer employed ftuxing the blizsard of Uaroh 7, 
1931, to elean the snow from the main line and switches on the 
railroad property, so that interstate trains might proceed. The 
weather was cold and it was claimed the plaintiff wss required and 
did remain on duty for twenty-two consecutive hours. Both UngM 
were froisen, which resulted in the amputation of one foot and the 
other leg just below the knee. 

The trial court held as a matter of law that the plaintiff 
was not entitled to recover, and directed a verdiot at the close 
Of the plaintiff's case, for the defendant, 

A stipulation of faots was agreed on at the trial, aad 
It was agreed that the defendant was a railroad corporation engaged 
is a carrier for hire and that it maintained the Twelfth Street 
Station as its passenger terminal in Chicago, The right-of-way 
extended south along the shore of Lske Michigan from the Twelfth 



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Str«et Station. Ia the rlght-of-'iray were laid different main 
traoke, and over these tracks trains were operated by the defendant 
in interstate oommeroe* 

The plaintiff testified that he oommenoed work for the 
defendant ooapany on March 1, 1931, between four and five o'clock 
in the afternoon. The temperature was around zero* The snow 
b«gan to fall between 9:00 and 10:00 o" clock in the morning. The 
nen were given shovels and brooms with which to work. The snow 
was deep and heavy, and the plaintiff shoveled snow from the 
switches and the tracks and kept the snow from the tracks so that 
the trains could get through. He worked from the Twelfth Street 
Station as far south as 3l8t street* He finished his work at 
6:00 o'clock in the evening of March 8, having been in continuous 
service all that time. There were four or five inches of snow 
everywhere, and in some places it had driftitd from knee-high to 
waist-hi^, which had to be shoveled out fr<»B the switches and 
tracks* The tracks on which the plaintiff worked were between the 
Lake B,nd the suburban lines* The greatest part of the work was 
done between the suburban and the freight line, where the passenger 
trains ran. Next to the /suburban tracks were two main tracks, 
being the dispatch tracks from New Orleans to Chicago. It was 
ever these tracks that the through \mae^9 ran out of the state and 
into the state* ^Jtl di^yt^ily 

The plaintiff further testified that after breakfast 
at six o'clock A. M. the foreman signed his identification ticket 
for the thirteen hours he had worked, and told plaintiff he could k 
not get home because the street cars were tied up and if plaintiff 
needed more work he could go back to the employment office and go 
to work; that plaintiff went back and stood in line with other men. 



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and was finally employed vlth another gang and was given another 
red identification ticket; that he had turned in his ahfeirel and 
hrooa at six o* clock in the morning, and they were checked in at 
the tool house at 13th Street; that the second time, he got his 
shovel and bxooa at 27th Street; that when he was hired the second 
time the men working with hin were lined up and their feet and 
clothes examined; that the company furnished sacking to wrap around 
the feet of those men that did not hawe boots; that he was already 
wrapped up and had on rubbers* 

Plaintiff continued working until Sunday afternoon, 
March 8, when he experienced difficulty with hia feet. His legs 
were heavy and he could not continue longer. Two men helped him 
«p the stairs at Cottage Grove Avenue from the ywd after which 
he was put to bed in a hotel and later removed to the hospital 
where his ri^t leg and left foot were amputated* At the time plain- 
tiff worked for the railroad it was agreed that he was to be paid 
57< an hour, time and a half* 

Plaintiff's claim is based on the Hours of Service Act 

of March 4, 1907, and Is entitled, "An Act to promote the safety of 

employees and travelers upon railroads by limiting the hours of 

service of employees thereon," The first section of the act is as 

follows: 

"The provisions of this chapter shall apply to any common 
carrier or carriers, their officers, agents, and employees, 
engBged in the transportation of passengers or property by 
railroad in the District of Columbia or any Territory of 
the United 3tate8, or from one State or Territory off the 
United States or the District of Columbia to any other State 
or Territory of the United States or the District of OoluHbia, 
or from any place in the United States to an adjacent foreign 
coxmtry, or fraa any place in the United States throx;igh a 
foreign country to any other place in the United States* 
The term * railroad* as used in this chapter shall Include 
all bridges and ferries used or operated in connection with 
any railroad, and also all ttie road in use by any common 
carrier operating a railroad, whether owned or operated under 















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a oontraot, agrfte9«Bt» or lease; and the tera * employees* 
as used in this chapter shall be held to mean persons 
aotuall7 engaged in ox oonneeted #lth the novement of 
any train*" 

The second seotlon of the aot provided as follovs; 

"It shall be unlawful for any cotamon carrier, its 
officers or sgenta, subject to this chapter to require 
or permit any employee subject to this chapter to be 
or remain on duty for a longer period than sixteen oon- 
seoutive hours, and whenever any such employee of such 
common carrier shall have been oontlnuously on duty for 
sixteen hours he shall be relieved and not required or 
pezmitted again to go on duty until he has had at least 
ten oonaeoutlve hours off duty; and no such employee 
who has been on duty sixteen hours in the aggregate in 
any twenty-four hour period shall be required or permitted 
to oontintie or again go on duty without having had at 
least eight oonseoutive hours off duty*** 

In order that an employee be engaged under the provisions 
of the Hours of Service Aot it oust appear that the employee was 
engaged in Interstate transportation and that he was engaged Ia 
or oonneeted with the movement of trains* From the evidence, the 
plaintiff was exigaged in maintaining an instrumentality connected 
with interstate O(»mBero0, and, therefore, he himself, was engaged 
in interstate transportation so as to bring him within the pro- 
visions of the Federal £mployers> Liability Act* This is admitted 
by the defendant, and the ruuLe which governs in the matter was 
announced in the case of I* 0. E» E» Oo« v. Industrial Ooamission. 
349 111* 451, where the court said: 

"At the time of the injury Oordella had been directed to 
assist in cleaning the switches, frogs and switch-points 
in order to enable the Chesapeake and Ohio train to be 
moved in interstate transportation and was proceeding in 
that employment« The operations involved in clearing 
those switches were in interstate transportation." 

The question hAX"* for consideration is whether the evidence 

is sufflolent to establish liability under the "Hours of Service Act** 

There have been some detlsions of courts of appeal upon the question 

as to when an employee of a railroad is within the classifiers t ion 

provided for by this act* The act provides that its provisions shall 

apply to a common earrier where its officers, agents or employees 






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are engaged in the transpoirtatlon of lAseengers or property by a 
railroad operating in the territory described in the aet^ and the 
question arising between the parties to this litigation is whether 
the plaintiff W9S such an employee ^a described in the aot and was 
actually engaged in oonneotion with the movement of any train* 

It is apparent froa a reading of the "Federal Employers* 
Liability Aot", and the "Hours of Service Act", that the intention 
of 0o:qgres8 was to restrict its provisions to those employees or 
persons actually eng-aged in or oonnected with the movement of trains* 

In considering this case two facts must be established 
in order to Justify the Oourt^s submitting the case to a Jury* 
The first one is whether the employee was engaged in the railroad 
service for the purpose of the movement of any train; and the other 
vsm is whether by reason of the niaaber of hours of work performed 
toy the employee, there was a violation of the "Hours of Service Act." 

We will take up these two questions in reverse order* 
KLaintiff was engaged to commence work for the defendant on March 7, 
11^1, between 4:00 and 5:00 o* clock in the afternoon and he 
continued such service until 6:CX) o»clock •£ the following morning, 
having worked thirteen hours in clearing the track and switches of 
fallen snow* The foreman signed an identification ticket for the 
thirteen hours, and it appeaxs from the record that the plaintiff 
having completed that seirvice stood in line with other men for 
further employment, which is evidenced by the fact that he received 
another red identification card* After plaintiff completed his 
w©rk in the morning he turned in his shovel and broom at the tool 
ho«se at 37th Street, and later he was hired a second time, which 
would indicate that there was a new employment* The question ^i rises 
whether by his voluntary act in seeking further employment after 
he had received an identification card, at six o'olock in the morning. 



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fwr the thirteen hours' work, he would be within the proTislona of 

this act, provided he w?i8 engaged in the service that had to do 

with the movement of trains. Section 3 of this aot providee in part- 

" ♦ ♦ *, whenever any such employee of such oommon 
carrier shall have been oontinuoualy on duty for 
sixteen hours he shall be relieved and not required 
or permitted again to go on duty until he has had 
at least ten oonseoutive hours off duty." 

Z t la evident from the record that plaintiff was not required to 

render further service, but his aot in applying for further work 

was a voluntary aot on his part* 

As to whether the railroad company had knowledge of his 
working, there seemn to be nothing in the record to indicate thst 
the agents of the defendant had knowledge and permitted plaintiff 
to continue work. It might be well to bear in mind in the consider- 
ation of the facts that the plaintiff, after he made application 
the seoond time for work, stood in line at the employ ement office 
from 6:00 A.M. until 3:30 a« M., and received a broom and shovel 
at 37th Street in the yards of the defendant company. It would seea 
from the language used in this section of the act that by permitting 
an individual to work for a longer time than allowed by statute, 
the defendant must hav^e had knowledge th^t the person injured was 
employed for a longer period in violation of the act, and unless 
there is such knowledge, of course the defendant cannot be charged 
with having permitted the employee to w»rk in violation of the 
statute. There is no evidence in the record that plaintiff was 
permitted to work, with the consent of the defendant, for a longer 
period than provided for by the statute. 

The question as to whether plaintiff was engaged in 
the service of the railroad company in connection with the movement 
of any train, is a close one. It is true that plaintiff's work was 
that of cleaning snow which had fallen for several hours, and in 



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©leaning the swltohes and tracks so the trains oould be moved, anong 

thtM were two main tracks upon which interstate traine moved, al- 

plaintiff 
thougl^did not aee any such train during the time he wp-s working. 

In the case of Jones v, Louiaville & I. H, Qo . > 209 S, w, 
850, the oharaoter of suoh employment was passed upon "by the court, 
vhioh considered several opinions of courts of appeal, in constru- 
ing the applioahility of the Hours of Service Act, and wherein the 
persons injured were employed in different capacities, and in 
construing this statute the court said: 

"To hold that an employe, performing duties suoh as 
appellant was engaged in at the time he received the 
injuries complained of, was embraced within the provis- 
ions of the Hoiira of Service Act would, in our opinion, 
be giving to the act a construction never intended by 
Oongress, The federal courts have not gone so far. For 
example, they reluctantly held that a yard-master was 
included, and only did so because 8 rule of the company 
stated that ysrdaasters performed duties pertaining to 
the movement of trains. A switch tender has been held 
not to be included in the words 'other employes' in 
section 3, relating to operators, etc. And in another 
case the Distriot Oourt was unwilling to decide whether 
a man watching an engine was included, but the Circuit 
Oourt of Appeals held that suoh an employe was included 
because he was, in effect, performing the duties of a 

fireman, i^ioh was said employe's regular occupation. 

♦ » ♦ 

We can see no difference between switching movements 
in the yard and the cleaning of snow from switches. As 
we understand the work being done by appellant it was 
not necessary to the movement of through trains, or train 
movements within the intendment of the act, but was only 
to keep the switches in such condition in the yard at 
Shepherdsville that the switches might be used for 
switching or yard purposes. But for the yard tracks there 
would have been no more necessity to have cleared these 
switches than it would have been to keep the snow from 
every switch on the company's line. 

?.e have found no case holding that a section hand or 
any one engaged in similar work was included in the act. 
Were we to so hold, it is diffioxat to conceive of any 
employe having outside work for the company who would not 
be included. The act is not so comprehensive. The reasons 
leading to its passage we have heretofore given. It was 
not the intention to give it as wide a scope as the 
Employers' Liability Act.s 

Tlii reasoning advanced by the oourt in its opinion 4t 

pertinent, and if Oongress had intended to include all employees 



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eiig:?ged in r llrosd workj It wo Id not have limited thle section 
to employeoB defined in the act "to mean per!r;o&e actually enp.iged 
in or connected with the movement of any train,* It ia the 
duty of a section-hand to look after the rails of a road over 
which the trains run, and see that the rails are securo and 
fastened so that the trains may o erate, but, as we have indicated, 
he is not engaged in a service which has to do with the operation 
of trains, and therefore does not come within the provisions of 
the "Hours of Service Act," In the in^ctant case plaintiff w s not 
engaged in a service which would come within the provisions of 
this act, and for the reasons stated, we believe the court below 
did not err in instructing the jtjiry to find the defeniant not 
guilty, and therefore the .judgment is affirmed. 

JUDaMEHT APFIHJIED. 

HALli, P. J. AlID nmlB S. 3UL i.IVAN, J. OOlJCUR. 



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Th« r«tum •!» th» »uKa««» r«ei.t«ii tluit it ««• ••rT«4 on "a 
j»«r»on of (4*f«na«&t*«) fik£«Uj" as Aag««t IS* 1996; AM«a«t 2«th m 
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f»r thft purs»oe« «f sovieii io qa««h kM •«rvle« of im»««a»; this 
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vat ftu|>p«rt«»i by d«f«n^ant'« «rri4avlt te tHe effett tuat at ilia 
tifiiA «f th« alX4Mi«4 aartrlaa af aiUBi^aaa «» ^ija h« vaa a reailtflt af 
lt«« Tarii City «J»4 taat tu« paraofi al ^ia oK &4dr«as io CUiea«e 
ttpaa m^m aarTlca «a« hai vaa a laaaae af t^a prc&iaea, an «»tlra 
atra&4«f , aot ralat«4 ta aisg 1& a»;r *tt<y ^^^ <*ol^ ^'t ^^> <MBpIay. 

1%a daf^aadlarit Ifi thi» eeuxt d«e» not que«tioB tlie rullega 
ai* Uia trial eauri ui»aJ3 tha »etiftf« to qu»aii Uie aarvlca ol' au&aiaaa, 
and tbft proaaa4ij)j(a 1a tiils Qonneetlaa 9kr% laiperta»t anly aa tar^dlBg 
ta amplaiji 4af aidant *b lailura to a^paar. -Jm. Safitanbar 6ih 4afMti* 
aat fUad a aetitlafi t« ir»oat« tha Ju4jj^aiit, vhloh net tor «aa 4«!>ia4l. 

"ShM atataaant ^i elaia allagaa aa obltgitloa itptia tha 4a- 
fan4a»t aa ^uara&tar by virtu* ol* a aart»in Rata and js.graaai«nt 
da%a6 July 15, 1938; an thta 4ata i.aiiiair«, X»a. » axaaut«^4 a 
{iraaiaaary nata by Bab«rt l>. ihiat, ▼lea-pr9«ldi«fit, vnerain it 
pr«Blaa4 ta pay ta the er4ar af )i. 3* iriae/i- r, au«nt far «i. a, 
fiaehar, |9»34.^, i« luatallsiartta} clnMltaciaouoly vitn tha ^aMm^'^ 
tlan %t tha nata thara wa« axaau t«4 aa4 dallverad an a«ra«Kaiit ba* 
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f«r #i9S4«ao sh«ai li»« fialdl *(»ttt of t^« Ineoa* or profits or »a«eta 
•f l.«M»tr«, Ine., •% tfe« rat* of fifty «Sollar» p«r WMk," and the 
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luaatr tl3tls jprovltloa in tlan o«i«iir»«t th»t pXaintlff Assort* 4of«r«i. 
«dit io littteXo mm gM«rnniM»r. 

ia»t i«r«eo« »r*»«at*4l is tiiat tey eortftift crn'?ial<>«« of taio 
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thingo «J*ioh lit hftt fmlltd to 4m, n«ne« tne wialr-tlff e»r>r.ot r«eoTor 
OB tkis Jfc4ir«fl(iaettt smA r&Xw, Fauragracth IS of th# ».ir9<?'-:!i«T<t provldoo 
th«t I*ok»lro, Imo. » i««0tt«i| its not« I0 t^&ymoat of )t«rohan'!lso, oor* 
tolB oot^itblLialiolll lmtlii<»»«», S'tft|>»l,i««fi ^nd i;mif forsulas sol?) aund do* 
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graph 14 Xtots tho pmt»«rty t© te* drt.iv«r«a %s tollot prsparstions, 
tra#ft u&r'kMt \>9nk«, ttat«riisils» fcii7%@ul%s and all »s\ohiiior7 aq4 oquip- 
SBsat u««d in i>yit:'>arinf »tt<?h toiXot preparattone. The «tav«EA«Bt of 
elatis <io«a net 4ai«(ro «ay T^srfojmwoo 'by Fisoixer of his oMigfttioa 
in this re»p««t, D«f«!».t!«jt *« petition to r&cat« Hif.-'- rt-a that no»s 
of tilts property h«^ b#«» fJ^llTor***!, 

?h.« ruls k«o fe««0 etf4i«id -Ik K^riy cases timt plaintiff oao 
not rsoevor on s» $t>gr«^.(»»t utUe^'S he iiae oxaout^d uic obltc^atloat 
STBilor th« »gr««Bi'««it, fet,«^3ttimy y^ Q astfta . IQ'i HI. 53; i^iJLjL-SX 

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th* eourt, <|uotlng from Conoasasro Mul^. vi^i Co. v. ypsf^ro i^str^lsiui 
jgH, , :83l6 hi. Anp. SftB, srIc' it in '*tx l-^cal azioc tliut n*» w.-c boo 
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^wlntlff says thAt I'or a, v<klaabl« «e&slA«r«t4oa, l>«f»r« 
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that h« i« new th« l^ia owner «Dd rtold«r. Sho not« Itself Inpoaoo 
■• OliinatlLon on a«f«6^ar«t; no Is aot & part;/ to it. ^hatfiTer ob- 
Itgmtlofi th«)r« KAjr bo on th« <So2'«n'lauii it by Tirtutf ol Uie proTl- 
sioa In tli« agr*«nettt tb»t «tof«naant vill nivaooo paytsonto on tho 
BOto it til* fun4« of* tlv«» nak«]r« i>a^^ro, Ine., »r9 aot «ir»llabl«. 
Bat plKlBtliT is not » pajrty to tti« ^^rot^ioitt and HaO no intorott 
In It. thio ofiiortaiiiiig of dtfoiiia^t to tiiio ^groot&e»t oppskromiy 
riifie to Fioonoy, t»« kaow of &o ml* that will ouotaia an »etioa 
for onroro«fti«at of a ooatraot by one not a tarty ia It <ind without 
inloroot in It* i^ar caa ^fi aetios bo basoiS •« ^no proTioloa of a 
ooatraot axoiadiAi^ tho &%nite proTlotons. 

V« bioXd tj^ai tao trial o*»«irt ohavkld iiavo vucat-d tho Judaoit, 
l»«raiiniag tha potittaj' t«i vao^te to ct«w4 ao tiso affidiavlt of 
aiorito* 7ho $A44S»«n% is taerefora r«7«roed sm6 the ^auoo io 
VMuikadad. 

llatoh«tt and ©•©onhor, W, , ©©near. 



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Kim w. 



) Olf COOK {J-MliVi. 

HOT wn4! imn. ) 



A^^ttllAAtD. 



^ 28 5I.A. 5 8l' 



!>SLIV1»S» tHK ©i>. „.,... _,_ :Mii'£, 

r«sitt 11500; iai« v»« 4<me» waidi ^u4(.^«nt l9r $li^'<-' ««• •cit(!-r«<l. 
In lt«r 4 •«JL#^ ration i^iMisiiif aXIu^^ed tu&t th« •iretfi« 

4l*agttr«us iMi4 ljsis*eur<i; therfli i« ne oti«t«nti«n ae to eenstruetloa. 

JPlalntlff t«siifl«!4 as to her «%^X(<»^i&«et by d^^f ^»(irtr«i» at their 
lk»ii« fts Silts »v«jatt^«, Unlttago , on th« Suadlajr »i'tera«(»n of Cetober 
B9, 193:^; Ob,* t&l<i kr». KotiLseuilj ti^&t »tj^« ^hu «Xi«6rl«ooe4 iJb 
g«R«f»l bttuo* iiJQ4 li*uii«ry werkj iwu* w%» t«Xa oi' ti»« cleetrlo wrlogor 
ia t^« l«Mfj4ry, I'laintiiT t«8ttri«4 UiSkt tih« ^kb fftmilifir with tliia 
typt df wrlugorj ehts rwportt* lor work od J^ondit/ Bi*t <ii.5 not do laqr 
latuidry vork w&\%l th# loIXo^iaif d«gr. A mIoo ;>;•&» Rlenardo «»• %!•• 
iHm>l«]r«4 »• 4H »«nr«et by diof oftdatito, suad piamtlif oayo tfloo ai«h«x4s 
ohovod h«r vhwro U»» lamdry '»*«, 

i^imiiUtfT «ay» ui«i o& Tuood&y jKorelAt^ otto '»ont 4oim to tbo 
bttiomont 'h«r« tU^- i«un4ry »*• locator and built a firt in » llttlo 
•o»l otevo to Ao&t tn« wftt«r io b<^ us«4 la waouiag tn* clotb«t; oko 
•tiLrtftd iho «»ritigor «»»<1 *rt«'r on* b^ wa»ao4 » eou;a>* oi tubo rull 
•f clothiog tbo wrifig^jE' ouddottly •toppe4; sn*? wnrit*/? th* 1 ^tof 



I8S.A.IS8S 



:aR **.. 



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4 



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tt*«d to siArt im4 Mtop th» wringer, tout vli)i»ttt vffest; sbc says 

idn* «ork*4 t'lft**!) nr tvtusity ndiiut** trylja,;ii tft $&% ui« vrJjBi^ay t« 
«•« W9Tki»^ th« l«Y«r %%ekwar{ :^d forward; th^% tn«r« was n* «««. 
(•ktiosi of dlotU** is ttk4» «riAg«ir &n4 no «»»>• ao r«x At she jKnev 
r»f its •topplegi «!&« wMst ui>atulr» to tb« itite)ri«» aa^*. loxA Mrs. 
RothoeJ^'-lItS fikflid th« cj^or mAid, «^•aa men&rd«» iuAt ta« vrlcgtr liod 
•topi^od «m,i «calit not ^t m^t «!<>rs. tiaU4e«all4 B«id tJuaro ooulda't 
b« «ei3rtb.iii|{ vroAtf vltk ta« wrijagcr* thtkt it waa ir. p«rf«6i eondltioai 
ti^nt Uie «iia«ss, wiVli M^ist Mi«i«aidB, ta*n vetii t.-iCA. %q \u% liMDirj 
imd Mi»* KiOitjArds moved tii« X«ver at Uie -^irksn^tt b«»o«> «C(1 fwrtli 
»n«$ ii ri&aily et&rtodt pljOiitin mm* <»i»ntlim^ witia th« ««»hl»c 
Mftd ooyo timt bjeio otiftrted %q ^ui u «£i««t t^irott^i^ii t^« vr^ngcr; that 
tto>« Bh.<%«rt «&• Iftoaseiiod a&d tko wrl£|!^&r stopped; ta&i; ttho otatrLHi to 
• trai|j^«iit«s out tko ol^aot oe it vouXd sot go ^rou^n la o t^iok 
btttto^i oad tEufct 4ti&t 6i« d^ti WKS i£i tii«i aet of oiMOOtbijag tho oii«#t 
tho vrljagor oMd^ofil^ «i.^t<»d »Ad Uor iei't ii«Ad «ao dr^ivc i» l^otirooA 
tisio rol'Ioro; %hm.% m^« trimA to r«a«ti tho i«vor to stop th.o vriagor 
iMt «Aft oiiaoltt to do 00 i'nx amA^ fii'teoa or t«oiit; uinutoo, uo tlio 
l.«for woo o«»»«vh«t out of roa«Ja. ^« ooj^o t;Ufit '"iiilo hor n,ond »»• 
liotvo^ui tho rolAoro tu« h^^^x r@il<»ar iii.a|^t movinij, w^iilo tho iovor 
rolJi ftr vfto otationarsr* Af tor 9ia.o «x.tr«iot«4 uer iii^d oao ««ttt laf* 
at»lrs and told itisso Bioiiojrdo of &*ts &otfid«at. <^o »«u> tai^oa to » 
dootor ond roo<tiTOd tr««ta«i>t* 

Iji « aiMKt^or of Itf^ort^iit ros^ooto ii%r tootiiuMijr vao coatro- 
dlotod by otJior viia««s«o, Mtliouga i^iaiRtU'f SAid siio lUkdorstood 
tUl« to operate th^ irricii^er <wd ttoodod no iA9tr.«atioBO, ^toao <iic.'^orda 
tootii'iod v&ftt oa fuoodti^ tmruin^ ol too oooidoii^l oko v«Bt to tko 
liasosiiMBt «iti% laalntiir OBd oiaowod aer ho* to o9«r«to tho wriD(;«r; 
oiiovod hmv tho eoatr«l ttos ot the right sidft oi' tho vrtat^or «uid 
Ihiv to tttm th« l«v»r to otart tho rell«ra or to nto|i tno» or to 
yi&t thon in roYvrso. Itlso HionHrdo aXco tostlfiod tiiot oho ox* 



>i«J"£is; 



J "^ ■> 5 '^ Wt .1 * ■? ' 



9HB 



:»I«*k 



flftln^tl to jjlvlirttff Xh'X. 9p»ratloii o^' tii* asaftty r*l«a»a bay oa tip 
of th# wrlnu«r ^iilfth trs>uid, l^y t«/tt«uin4t it, r«a«Mi« iA« r»ll»r« 1b 
0<ui* of «»»r«(«nay. Fl.allitl-iX t«atlX'l«»d tii»t %iiH> Lnmv abaut ibii 
unfety a«rfi«t tat fory,ct »teout it ^hm ia«r iia«d ^Au^jut, «'l.aiatiff 
fr«t «pp«iir«rttXy et»ta'k»n sWut Vy^ilding % rir« xj^i, ti ftuai. Btov« in 
til* bA««£i«&t to heat the ^%t«r« riut it. is Kot 41»put«id lA^t thtr« 
w»» nci eoal »tev« ir; t,'.-j« iaun-lar;?- j*tt«S tiiat Jaot w»t«r J'«.r i»uaiiry 
«o»]| la dlr^wn fr<»(i a plpa aoimestiai^ vi%^ a bi»iX«r, i^vrMua u«ia« 
%h* laundry 4i^: not u>« a^jr i'ir*. 

Sil«t Me;';4ikr<l« t«j»tifift4 taat alter ii** took plalBtil'f 4e«M 
te tlifft 1ft%s«B4»it s^d •xpl%ia3.e4 \h«i. t»|»«»rfltU<»t> oJT Uii* wrio^ar aha di4 
i!i«t ••« li.«r :.^4^ilj} uutil fe>«%v«<!«n IX} 3m s»hA 19 a'cioak 1a tho asmlag 
vHttn Ttlft.lAtiff a^p«aTa<l «it th« b%e«i j|o«»;r, fitaj^lag h#r htMk h%A oaoi^t 
in iiM« «rrln^>r, Mth Ut», Metha&'ixil^ smd &!»• Hl«i^i&rd« tAatlfla^ 
]Kl»itlT«l7 that |»l%ltsitttf ^i4 u@% at iuty %Uk9 ««y taer« vaa aoythiac 
WT<mu vith th« irri&ii«»r. Ji^ir». Eatk«oiilia waya «be was nat 4tt i^o»a 
Ihat Kt^rttLeg aei Trnvn si^thixi^ ^b@ut th« a«ei4ant vmtil »he r«tunia4 
in tta« «v«ii1r||« Ei»» BieJn^igrda t«»ti/lad« dauyi&g "paaitlvaly* tliat 
plaintiff j^rlftr &«$ iiia ae«l(l»/j.t aanplaiaad that tna wriagar had 
atOiip»p#d ^ni Umt, nan waet te y»e b^iawAattt aiatt a«fiiat«<i pialatiff la 
fttartinti: it. 

A Mra. J-owits, a 4«uigi'it«r of tfaf ex^dafita, had g<ia« with hav 
Aatket' flv^wfi to«» a i.ittl« ai't«r nina <j'a.i9ak «.. a., i»ut ratumad 
aloae about t««li>« &*eioek noon. ^»i« caw ^e&a Hia^iar^a trying ta 
laoatc a ^lottior far pialntirf. Mr*. Lowita ^aicatf plaintiff ha« Xhm 
aeeH«r^t haf>i>«nad «m4 ]»laintlff aald th«r« »aa a pleea of laea 
wlfl^lag itnalf «if«9u»<} tka wriAK«r mxA m« w«» trylai; to pull it 
a»t» a« »ha tJNutigHt It might %«►«», .*^f 4 lo •• ilaia»s h«r t^ar.d aaugiit. 
Sana ftlaharda t#«tiriad that sJ^a toaard tiAis aoavarsation and hward 
plaintiff «ay that ahtt waa tryi&e ta ranava a aatall plaaa of Xaa«, 
•r aaai«thiA|g, t^mt i^ot eaugJbt ajrouad tba rallaVt and is tryiatf ta 



u Ta 



it 

b* did tixla work i'or U^« wmiuf^«turcra ol tn« w^fc«iiia«; liuit » f«« 
«•«*!(• l>0i'Qr« th« u«eld[r£it h« &%d6 an Inspstttioi) of (l«f •fo4&rits * 
A«,«]ril»«, going •V*!' it •tttir«ly, Qpftratinii^ i%* eH««kiag it for 
proptr «p«r&tl9n, is^niu^ aver it gaiiexiilXy to «•<« tJi«t t<t«r« v«r« 
BO l$os« eaan#etloat. ia testis i#v1 t<i.&i qu ihtki acoaeioa h« •pest 
approxijf.ut^Ijr ^ua hour lfisp<»atin^ tho i)^ucaiii« >Mid s\>aafl a« Mi«Aaiii 
d«f««t in it oi' anj a iture. 11»« «lui«»a ddterib^d ta« vringor •• 
nttfuynlealijr e»si3»et«d to ttio aM»t«r #it^ a b«lt. a* t«otiiiH at 
to the aafsty 1»ar or .lAvle* >it %hn lap of U&« wrin^or waiaii, wbm 
pusJriO!!, i»us9'llat^ljr r«^«»««!B tii« tv&slon of Ui« roll«r«. It i« a 
frietioB drlv* vrlfigar; thutt ife, th« powor l» <»ppii«4 to tlio lowor 
roiXor and tin* api?«r rf»lX@r turiaa by friotiott a«aittst m« Xovor 
r«ll«r: tn«> uppor roXioT eistuuot ai»*rat« vhor^ vho Xo««r roiXor it 
i40t turniA4£, %i» ao«ffi« t4» n«i^&tivo pXttistiff *» toatia^ajr that vhon 
hor han4 vaa e&u£At tiio ttpp«r rciler was AOTmg by ita4»lf vhilo tk« 
Xowor roXXor soeKi^^A ti^ation^ry* HougXas furtiier t«stiri«d that it 
woalf! b* s«oHw9iieaXlj im^oeoibX^ for tte« nai^lae to otop for fift 
or t^«8ty «inuto» «ltb; aiXootrio 9«v»r turaoA en asdt thon to atari 
a^^ain; Ui»t 11 ih« saehino fito(»p«4 for that X«ti£tb of tiiso -alth th« 
powor turai!)fi on it woald burn out tho motor or fuao; it would not 
• tart of Itc own »oc0j[4. rh« eourt aakod vhtthor puttiJie » Xarfio 
«milt or a^ioot ia tho ytrib^sT Ki^'it ataXX it. to vhien vitnoaa ro* 
pXi#d tt^at thia «aa p«oaibXo but hardXy likeXy. 

Dofondanta ar^uo that pXaintiff it%a not proved tho apaolflo 
defaet in tho vrlngor wi'iicii caaaod it to atop, citing o^X il . t ▼ . 
Worn or . 15X XIX. SfiX . in that eaao a aeaf foisting fall; piaiotlff 
vat hold to havo prova» the dofoot aXlogod by ahevin^ that oeo 



il 



*ii4 



'f «• 



•f th« J«l»t» wM kjivtty «ad n«t {>ro9«rly satlM tr ¥r«ve«4. In 

JteS&t-JLi-jtMijiL-i-fia.. 140 111. App. 408, f»liilntirf«» hmd v«t 
•AttSht ¥«t»««« ap«)»r •»(! lotr«r iMttu; th«r^ w«e cvif^rae* tnat th« 
•A«hiaft ep«r«t.#<l «)*f«0iiv«Xy; it w*e «rgu«(l that nloilntiff ii>id •«! 
fr«T«(tt th« iiaLrtieul«)t.r ri«v or lui9«rf«eti«»n wai«n Qaua»r| tli« i&. 
i»roi»«r worxlBg or Wj« u^t&nine, '£hB court wait? It T»«a 6uffl«l<»ttt 
i« f>roir« thAt It l!Bi»roi»«»3Ply *p<ir<it«»<l. cttlB« Itw^t. SjamaiHiue ti^ 
«$aSSL4:»iLjib..JF^JiJBi!«i:. J-^« Hi. A|»s>. 64 S. «n^ K^l.tn.v. Waldos ■>!, 
1©1 111, 4t>»» 5$t. S»# «l«o %<f-fit^r V. l*Of l«».yie^.,..Co. , IC3 111, 

In th«»« e«ui«« It Ifs h*^li tkat 'i?hftr# evia«re« ©f d^fActlTt 
»Y»#rt&tioB »a!ti»« ft p rim* f.^«i« cftji# of a K^^feetlvt aao/iiri*, te !•• 
i»es« llAl^lllty en the «i«epl«y«r It m^mt b# proven th^t hft k&4 pre- 
vious noti«« of ffueh ««feetiv« »e«r*ti©B ©r stieuld &«»• kaovc i|, 
ilbOi9l|rlA|e th^is tttl# to thft iastiact ««e«, plsklRtlff '• testtioay that 
tJbi* #riai?»r »u?i.dl«isly «t©pi3#4i ©p«rAtljj<; for fiftewi or twenty ftin«t«« 
• r wort *n<J ;h#H au;-1>5««cly at^rtfrd «.:ai» wlg^^t \>ft »«ld to sake a prjiu i 
ffe^lf «*•• of 8l«f*ettv« »fe^c ia«ry, ulthoug^s tha t««tiBo»y of t*>Uj,loi 
i)i«t tmlo woul<l 1»# m«Ghi»i>le(».lly i^posail^lo Qt^sts an eh doubt en 
Hlointlff *• t«»«tl^0«y in this rfstpeex, 

jiotroT'fp, wo #r» of the opinioi-; ta^t tho grtiAt^r weight of 
th« •r»l4ene# Is agslBflt »li*intiff '• claifi that dho notifiod Mr», 
Rothoohil'l of iho «llft^?d €4f^9% In tho n-rlngor b«ioro tho hop-jtonlac 
of t1i« %o«l4«nt, Mr«, Roth«cnllfi*» t«?eti%dn>, oa^portoA by taot of 
)ior Ittui^htor, Iro. Lovits, tonle to na»^ th»t jiro. Rothooiiild voo 
!!•% >ioai« ot tho tlm«t ;>l<&lntiff «eiy» 3h« tel4 iK^r ol U)« aioi/pinK 
of tho wrinic»r. 2«b« Hioh«rao <!iroetly oontr»dieto alaintlff *« 
tostiaiofly «mi to ilii« iueidoAt. X)io tostinony of tiidoo vit/A^otoo, 
In ooanootion with the tRatli.>3tosy of Dou^laa, to whioii «a aato ro- 
forro4, no«j%tiiroa plaintiff 'a atoary «« to tiotico of aoy dafrot i* 



t*<f0 



\i ■«• 



th« «rlfij|«r, «• «r« volX a«^r« t^«t UUn 1« a «|u«0%i«ii of tn^t 
pro;»«rI^ to fe« »yito«ittea to ia« Jury, feut */i«» lt« T«r41ct is 
«tt»ir««Uy «M£iii«i«t tb« ««i#it 01 the •vl<5«Eket ib ia out 4uty u 

FlSiintitt*» •^qa atery It^^t %Xao«1i lyrvtiAtably to tii* 
oeaeluft'lofi ihistt <%• «ubi« pi ''ia«4l a »is»«»t iii tJti« wricg«r it beonaui 
^tftaoh«4l up «t9 a« to r«t«ur^ lii« iM»t oi ]p«i«aiag )»«t9a«n ih« 
roller** sm^ while »h% va« att«»i|»tin4^ te «in<»oth out this baiieh 
i««4aT»rt«utly h*r finis«r« i»«y« ftnaght 'b«tw«0n Ui« rsllora. In 
tiiiii e9im«et^ieB w« «(m»dt udarataBa, if, «• piaiatiff vayt, sh« 
w»» i2si«if«ti|(ia3Ly tmmiliaje «lth th« «a*oliJMii«fli ot th9 wring«r, way ah* 
€14 Met i»a»«^l%t«ly witii ill* 4»iU#r aaad tauoh Ui« vafety btur, «hiili 
woiti^ r«»lei»«« tii« t«B«lo» of t^« jro4X«r« im^l permit tlui 'Withdrawal 
of the hai^d wllJia ^rolxitbX/ «>light injury. It oiiM^t b? aaid that it 
i« tauiiir«r»aJily Ic»qw» that a tioti^ttt wriagar ai thie typt is 
haserdQua te th« ai»ttrai<»r. the 'Jaitigar t^'iat tha i'lngara «ay ba 
draw» b«twaa» tha railara ie 0|»«n loid apparant, jdad graat oautiaa 
w&d (iarftfui.»aaa jeust b« ui»ed to avoiil thia. Xh«re ia toraa in tha 
»tt£gaA«ioj» that plstim^tltf was nat a« timiliskX with thi» typa of 
vringar as «h« rsprAaimtad h»jraal) ia ba, fmd Ux»% th« aaaidant 
ha|>|»il!»a<l )»eea»aft of iaaiii ai that dagr«« of eauti<m whiah ax- 
]»ari«ne« woui ^ taannh oatet b« uood ta awoitl &oeid»nt. 

Tha v«r4i«t af tha Jury vraa f9t ^ZUHQ, froa v?nia}i plain- 
tiff at tha augg««fltiait ef th« court ra»«ittad ll&oo. 'Xhia ianda 
att|»9art to tha ]»olst that tha Tardlet of tha jury «aa largaly tha 
rwsult of paaaioB aod ftra^tt^iea. fhe evid«aea aa to the extent pf 
tha in.fury «ottl4 nat Justify tha MiauRt tn' tha Twrdiet ratuxnad. 

Cauusal fetr dafac^fianis aarn«stiy ar^iuas Viat arrers wara 
••nalttad by tha trial aaurt in hi« rulings and iaatruatiana ta tha 
4ttry« W« iir9 inalln#4 ta think tha oourt was juatiiiad in adaani ai^» 
iAff aatinaal vta to tha naeaaaity of oeeapying lasa tlica in axaaiiaatlMl 



»*i* ryt 'nx.t^fjrii^-at^s I'?;*;-*..- 



Mi 



■■4*>,i*U* t*. 









Dili's *r 



v)rj«i"»««r 






•f vitR«ai8«s, and tb#r« van no r«T«rBibI» trror it. eontiftctloB vltk 
tbe instrufltiona. 

th» trial rtmrt nroperiy r<ifui9<»d t© ftiT** th^ e9«ci«il lo- 
tftrrogittorjr requsetsd by defeiitiaati. Th« lr*t*rrog;.tiory Jolnedi a 
tt»»b«r of <Yu««tionB, to whioi. th« Jury ml .ht Ktak« iiiTfrent 
«n*«ftr«. Sttch int9»rrois«itorlt« «gURt fc» «ln«;,l« *ad 4ir«ot. »9\ff 
iJtg.t ,^i. 3U .JUlg-OP > 152 111. 9: gjg^ jr ,. ..C4B «0»a»fia ab o r r ^f C(^ . , 

»i» 111. S44: v.^f^T. yrftiykjgt 20S in. app. 133. 

It 1« unn#e*««i»ry to n«t-p «>ti»«r Brr^r* &i«l<1 to hsTe oc- 
eurr#4 apoB tls* trial «• t/R'»»« will nut llk*ly occur ngulB. 

KTliftnB* «« to th* «5«in4lttfln «if th« wrine**" •J'twr th» aa> 
ti^-fABt W',iul4 harf ■b*«K of j»ani3'-;oi»nt Yala*. &e auoh «>^l<1«ne« »*• 
intr<itdU'3<i<l. fh«y« it Is »»ndwn tix»t n maohiQ« ^un not V«*n ohan^nd, 
tYi?l#nc« of It* Ci^^xlltifin ^ft^T an »e«il4«/U l« ftdbKi«sll9l«« 3laak 
y. Harrly. SOO 111. 9f{ M»»K\iyy t. Mollne now Co .. 19» in. A^y. 

jPor tho r«^a»©a tii«i iht verdict is *g!%ir»«t th« »&nlf««t 
ir«l*»ht of th#» «vl4«'ifje«, th# Jud^oRt t* rev*rs«d an? th« causa 

Xatetiatt and O'Connor, JJ. , concur. 



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.«:(% $■•.*?.««.'(*»'* 



f.Hf<»#3S'« 



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$8733 

) AFFINAL ITftGll liUAl^FAL COUKX 
^■. ) 

) OJr ClUCAOO. 




Af>p<*lXa<it. ) 



2^!^ T a. p^81^ 



:Ma«lvaiiET) THK onuum o^ fm oguht. 

Flmlntirf brottgbt »aii, t© r«ecv«r Iron A9f(%i*,t*nx hit «l- 
l«(S«»r) Rhar* of cflirii^in 9jcpetn0«s irieurr»4 by th<i VilJiag« la connse- 
tl«R miih %h* s|>*«l»,l ift»f««ms&«i:it i'<»r paving H«rl«a av«r^tt«: 4«f«ti4« 
ant flX(»d A eou t«tr«laljB to recover tuiAtk eaurta^in @ imK wuleh he htui 
paid! to pixilntlff ea aoeouat of Ui««« exp«»ft««; »& trial \y th« 
oourt the i'lnilAg wak Tor j^lainti^T ar»<S a^iainat del>nda<}i an hla 
oount«rel%l«i and Jud^Maut wei9 @Bt«ried ^ai&st d«f«c,-)ajrit far $1050, 
frotc wi;:leh ha a^p««Xa. A mera raaltaX oi' th« faata daatanstratet 
that tht eonolusloKi oi' thi» trial aourt waa ,*|uctiritt4. 

In 1932 plaintiff paai«d an er^linanea proYiding far tha 

paviai^ of Earl«ffi ATtnua im.il thet l«Tyi&g of Ktpeeial aawestKants to 

$iay for thia, rttultln^ 1b ih9 onnflrmatien of an asaansr.ant 

against tha proftarty of d^fumaant in thf> num. of $10,697; defendant 

a|>?«al«(t fro«B that jud^t^nt to tha Sapre«« eourt, whioh appeal waa 

dllarrissad. Api»%r«*ntly d«fandant attampt«d to fl|id aoaa va^ ta 

avoid paymajtit af thia jud^ant; to tii« <»bA ha antarad into cege- 

seeking 
tlatlone %ith tha County af Coojc/to a%v(% it pava (Uurla» aTanua at 

ita own «xp«naa, bat in tkle he was un(iueeaB«ful; daf«»n'laiit than 

nagotlatad witii tha di^iwiky OapaxtAant of th« i^t^t« of Illicoia, 

•aaJilng to hnrfi tha pa-vea>«nt of Harlan avanua Mada by tha dtata at 

ita axpancta; i*^a a raault of thaaa n«f;otiatlona tha i^ighvay Oapart- 

««it acroii'd to luaJra eaid iKprovamant at ita ovn axpanoa providad 

thl« waa agr«<^abla to tha truataaa of tha Vlliaga, w.a ta any con- 

tractero with whaa tha Villa«a had aatarad into eoatraota for tha 

«akiA£ af thia ibprov<(i6ant. 



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•iij 






•«»•« i 



X>«f#niiu}t t'>«n wought to indue* th« trust*** of th* VHXi 

to eea»*nt t* hft-ve th* iaproT«m««it on n*rX«Bi avenue aad* by th* 

Stmt* of Illinois; at tni* tl^'* th* «**«s*n«nt rol* showed «■•*•*• 

m*iitt ikgalnst proi>«rtic* of fiT* parti «», inolutiinf; th* OB***NM*Bi 

of ^10,697 against d«f«»ndftnt** proptrty. Jun* 9, 1933, defendant 

•ubsittHl to th* VllXag* a preposition in writing in «ai«h h* 

«iatM h* a»r*with gav* hi* chsok for 910u.3d in conn*otien with 

tl^* s^>«eiaX a*«*8Ciit«nt ior paving d«rl9Ki ?iv«nu*, fisi<i he tk^r^r^/i t* 

pay to th« Villai^o en or l>«foro ti^o firot tlay of oaeh t&onth th* oiai 

of $190 until th* UMKk of $11^00 ha* b«*n naid; th* l«tt*r r«>oit*4 

that th* total, of #16<.0.8!6 r«» ^restanto the ttaount which d*f«ndant 

had co«iput«d ao duo freci his a* intf owner of th* property on 

Harlan avanu*; it «l*o 9tHt*d th%t th* payvonte aado toy dofendant 

•hould b« h«ld toy the attom«y for i)^o Villain* in «*orow, *nA 

that «h4» th« total amount of $ldOo.36 ha* b«*n paid, *you will 

▼aeat* th* above ai«>eial a*9e«>»n«iitt ani dioohax^o ao a lieia *f 

r«oord th* ahot* tsfteial a*s*«es:«nt» ** Xh* letter continu**: 

*I on^lcratHii^ that ur>on r«e*ipt of thie l9tt*r, y u will 
imodiately iai'!*rt)ik« to obti»ln froti; th9 follow Inij. owri*r*, th* 
aaoiml oot oppo«lt* their /n^*.> otiv* nmrnta an'i that it will rociuiro 
tho paynont of th@ follow ing asMiunts to eoffipl«t*ly di*«<;arg* th* 
•tooTO a*«cenri»nt proe*^4ing{ 

for**t Pr4B*rro. 760* U. 346. at 

tio*li to 30e. 5 • 57o. 6P 

itarrott 213' 3^2. 3« 

Bowsnan Dairy 217' 309. M 

fihoald you finij tiiat you ^r*. not ubl* to obtain th* pay»*nt of th* 
abov* anouato fra»i the above owntr*, «iiji*r in oaah or in obliga- 
tion* or Acr««ifi*fit8 that you aiall docid* to aoeopt, that you viil 
rfttum to «• all p<iya«rito whi«xi I aay hav« &ado ii&j3*r thi* Agr**- 

Tikis latter was »ign*d toy 4*f«i*'1ant. Upon r*o»ipt of this 
proposal the officials of th* Viilai;* aeoopt«d it, and tx)*r*upaa, 
with th* con**nt of tho eontraetoro, eanoolied all outstanding *oa- 
traots for work in oexin^retien with this iiitprev«««&i «tf)d advisoA 
tko Stats of Illinois that it h«d no obj«otion to ito prooooding 
with th* iaiprov*fii«>nt. 



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It ««• iitipul«t«»d Xhmt %h« Ylllis^i« had Incurre^i eertaln 
•x^cAAR* in coune«tJloa mi%n trii« Inprova&vnt and had ie«u*d It* 
-vattchera to e«rtain |i«rtl«8, Inoluflin^ a paviug ttonpaux «hi«h hai 
e<»iG!&i«nettd a portion of th« pr«lli4iii«jury vrork, Th« •eiiedul* of 
|i&ym««t» eontaln«d in th* l«tt9r of daftm lant is ltaa«d upon tho 
•MOOBt n«c«»»«*ry to r«imtjar»e the VilijA^et I'or Its exp«n8«o In thio 
oojaneetion. By th# »nt«rpri8« of d«fiiind«i*t ho had thuo roduood tho 
aaotant of hi» a«B«««m#nt from #10,697 to iX6\A>,2Q, By hlo dol>c«o 
1b tho pr«^oo&i action ho s^^ko to avoid 9«i.;mf>int oi' any aibount. 

Aftnr tho aeeoi»tftrie'<' of <^ef «»ii >aut *a prnpooal tho Vlllano 
proce^i"*! to %ii^ '^i-f cpllsct frois all th« p^rtloo n^aa^A in tho 
1 otter the «£«-^tmt dluo fttm thorn, nxeopt i'roia (ro^litz, which oub, 
aiTOuntlBe to $370.«f , &o«Xita r«fu9<^d to pay. It va» otipulatod 
thot tho Vill«g« wao rii»ady, willlag and -Able to vae^to tho opooial 
aooooojaent proco«dlii|E« and dtoohargo it as i& lioa of rceerd upon 
dof«»c1a£>t *o property upor. th« payi^eiat hy ixi» of tho l»alaBoo duo 
undor hlo prooosal, iiaat«Xy, ^1050, and ir.nX no e#rtifleaio of ooa* 
plotioc or of aeooptain^oo h&a boo'> filed u,. th« »aeolaI asaooomont 
proo coding. 

Dof fttJtdl^Uit art^u«!'9 that hie promlire t& pay wao oondiitionod ca 
plaintiff oolleotlng from all tho porseno naz&od in hlo lettor tho 
uiount oot rvB AGtiroly aft<»r th«lr na£}O0; that tfioy have not ool- 
loetod i'tnm doolitai, hmic«^, it in a^id, plaintiff hat not perfomod 
th*» eonlitlon upon «rhleh <5of«ndsBit promlesd to pay. To thio plain* 
tiff r9T>ll«>fl that tne coBdltion ib^poaod uoen It ix> dofondant's l«t> 
tor vao to obtain th« pay»«rit oi tho anoant oot forth "froa tho 
a^ov« ownnro, «lth<»r in oaoh or in obXigationi or agrooAor.to that 
y%n (tho Villaco) ahall doaido to %ceopt.'* Pi.alntlff admlto thai 
It haa not 9«eur«<l eaah or au agroooiont to pay $370.69 froa 
Uoollts, but oay* that it liao an onf orooablo ohllgution ««ainot uXm 
arlolng Cndor tho opoelal aaooooi^ont proooodln*^ ohloh la otlU 



r VI 



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p«B<fliig; thftt th* Yill«ff« IMS « llan upaa th* property of Uoffiits 
whie^ It « tr«ll4 aii« «iirore«&bI« •^llgaktion aeainat It, ^<4 th<i 
Ylll»«e otTiclalt hair« (l««ld(»d t* Aocept this oblltfatlon In «ooord- 
«ne« vltb tii« t«rme of <}«f cfida^t *■ X»tt»r« 

B«%h MttA**! vay tltuit th« Stat^^ si' IlXinolK ha« eoBit>l#t*d 
tb« latpro-veffii<mt e on t <!>!<(■ pi wt«<l %y tho^ or<}ir>«riC« providing fer th* 
pATcm^nt of H«rl«K AVftnu*, and d«f<>ijdttnt eays that und*r aieh cir- 
etuflstaneitfa plaintiff has no OBforoAatolo obligation ftgainut tho 
property of Oo«lltB, bwesuso b#foro tUo proporty ear. b*" daot^d ao 
dollnQui^nt fin-*, ^n^nlfi. for Ron«paym«nt of any Inctali^ «nt of a •p»oinl 
aao«8SRicr>t it ia n«e9iSBary for tho Village to flXo a e«rtificato of 
ooot and oonpl^iion, waioh, d«f«Mridant says, tho Villag« eaanot do 
ao thoro wa« ao coat to It, th« work hstving boon jonc by the Stato, 
Vo think tho poaiti^u of T^laintiff ia ci^rroot ^hon it aayt tliat vho 
iaqprov«ss«nt hao not boon abandoned, tiit^t tit!>«rft haa boon t •rely a 
aubstilution of the Jl»tato a« the a^«£^«gr doln^^ tho yiork i£>st«ad of 
priyat« eontraot»ra; that thor'S io Botnin^^ to proront t>laintiff 
fT^m filing a e«rtlfi«>at« of eoot and eonpletlon af>d ^imklni. for on 
abatoct«nt of th« ann^s^.^nt aM'^liist tho property of tfoolits in 
0X0008 of tho amotast i^etually oacpendod by tho Village in eonnoetiea 
with th« *orJt. 

Vo ooo no Bub@tafitial r«=a«on why def ondant ohould not pay 
tho amount ao oati inM in uXb oroposal. The Village haa agroo4. 
upon daf onH.ant'o wtiiiing thio paynant, to v»c%t<» th« ap^oial aaoooo- 
Mont and dioo'iar^o it ao a iion of record upon hio proporty* >io 
would thtto obtain axactly what ho bar^alnod for. 

8<Mao argtmont io «ado aa to tho rulings of tho trial court 
upon propoaitiono of law aubmitt^d, wut notiUn^ epooiMo io indi* 
oated. in any 9>rant, it in unnoo": aoar.y for ua to oonaidor propo* 
oitiono of Isiv if tho judijiaont of tho iUwioipal oourt froa whloh 
tho appeal ia taiion io oorroet. feortn qhica&o City Hy. Co. f„ 



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Tfwn fff L;^^ V^^^y, 106 111. ao7j Wgber y. Krtttt .£y]r, 2o3 111. App. a?, 
H»,fCff<IB,,.T« Stfftn LTC M#l.antA3g >1tHt>? fctink . (Ab»t.) 269 111. App. 444. 
iidr«eT«r, f>ro«)e«ltion» of law «r« ii©t B«e<9»»tury under tk* pr«»«nt 
• tatttt*. Ill, Si«fe# B*x ati*t». IV 35, par. 1»2, ehap. 110. 

W« find so r««k«oa to UBagro* with th« flniing of tho 
trial oourt aus4 Ita Ju4g»«fit is aiTirife«<!, 

AJ^jriRM^S. 



«• t V ::■ .-J f ■ 



38631 "^ 

IIA15S Ba^TSEN, MKiiiiistrator of the l^»^ 
Bet ate of iJettie Bent sen, Deceased, ^T\ 

Apoellee, ) 

) APPS^ti mOU. BUFiRIOR 
▼ 8. ) 




WILLI iUii C, PAirZBR arid FREDiSRiCK C 

pan:^r, ) 

Aopellante. 



) COURT OiJ" COOK COUNTY. 



28 5I.A. 5 82^ 



MR. JUSTICE MATCiiSTT DiSLlVSRSD Td'^ OPIiilOK Or THE COURT, 

In an action on the case plaintiff as administrator filed 
a declaration in three counts charging defendants with general 
negligence, excessive speed and wilful and wanton negligence, re- 
sulting in the death of plaintiff's intestate, Nettie Bentsen, In 
IMMh of the eeunts it was charged that defendants '^possessed, 
owned, controlled and by theaaselTes, tlieir agents and servants 
were driving a certain autoiaohile," etc. The wanton and wilful 
eount was withdrawn. Defendants entered a plea of not i:::uilty. 
There was a trial "by jury and a verdict for plaintiff for ^7500 
against both defendants, upon wiilch the court, overruling motions 
for a new trial and in arrest, entered Judgment. Defendants ask 
us to reverse this Jud^ent, 

It is urged for reversal that there was a total aosence of 
proof of own-rsiiip, operation or control by defendanta as charged 
la the deolaratioa; that the court erred in penrdtting iKproper 
evidence over the objection of defendants and in refusing to in- 
clude in Its Instructions to the Jury certain suggestions tendered 
by defendants. 

The evidence tends to show that Earch 23, 1932, plaintiff's 
Intestate, liettie bentsen, died as a result of injuries sustained 
by her December 27, 19 31, at the intersection of i^ong avenue and 
Henderson street in the city of Chicago, Loni^ avenue i3 a public 
highway extending north and south, and Henderson street a public 
highway extending east and west. At the time oi the accident Jnettle 



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cau*:/. i: isif^' 'to ajQli9»t<S9 dJtW' taTo »on«ftlv« 

';o»i»i)a©Ji 



B«ntBMi was riding with h«r husband who was driving an 01d«mobil« 
autoiaobil* in a weaterly direction on Hendtraon atreet. The Olds- 
mobile was atruek by a Buiclc owned by defendant, William C, Panzer, 
and driren by his son, defendant frederiok G. Panzer, who was driv- 
ing in a northerly direction on Long avenue. The colli aion occurred 
between two and three o'clock a. m, Nettie Jbentaen and her husband 
ha^ been visiting at the home ol' a friend, who resided on Henderson 
street about a block hxid a hnll' east of Long avenue, Ihe evidence 
tends to ehow that as they appro aolied the intersection they stopped 
and then proceeded to cross at a moderate speed; that tiie Buick 
meanw^iile approached the intersection coming from the aoutu and 
struck the Oldsfflohile in which deceased was riding when it was 
just past the middle of the intersection. The da^^age sustained by 
the Bulck tends to corroborate testizaony submitted by plaintiff to 
the effect that defeni^anta' automobile was being driven at a very 
great rate of speed, the verdict of the jury was that defendants 
were tiuiity of negligwico, and it is not argued that the verdict is 
against the weight of the evidence. The evidence shows tuat the 
Buiok Ttas owned by defendant William a, Panaer, but was driven by 
his SOB frederiok, who was then 18 years of age and a student at the 
Lake forest University. The father was not an occupa<it of the auto- 
mobile and was not present at the time of the oollision* The son 
lived at home at 5S24 Warner avexiue, and on the evening of ])eceiuber 
2d« 1931, attended a Christmas party at the uome of a Mrs, Uchults, 
3844 iiiorth Long avenue; the party was one where relatives and friends 
gathered. Apparently Frederick Panrer drove the Buick to the homo 
of Mrs, Sehultz, although the evidence is not definite in this 
respj»ct. The car was pariced in the street by tbe curb in front of 
the Schults hoKO, and early in the morning ITrederiek with a eom- 
paolon, Frederic T. Stolley (a brother of Mrs, Schults, who was 22 






, ■ i.i.. \Q i iit! \f X X ir. t-***; 

...... ,,„.<'^,:> V.,,..:- ..vw,-; .■v««)w4.9(f 



»rf;t i"* Imfeij^fi i IKK4* a*>J orfw ,3l«it»b«*rt hob it Id 

i&el'ifleoeCT 'to ^ain^'/s wJo n.«W ^SJSt! *« e b&rlL 



3fi tf 



:JX«xi08 .BHil 'lo t*ii;rc' 






years ot age and lived at 3731 Eddy street) come out of tiit home und 
got into tiie car with i'rederiek Panzer, -nho tii«n drove the car north 
on Long avenue. 

Hobert Wesche, vrno vita a Jdles ivcKanK, his brother Carl and 
a Mr. Cady, also attended this party, left at the same time In An 
autoHtobile which followed the .Baiize^r car north on iiong avenue until 
the oollxsion occurred. Other than as above recited, there is no 
evidence tending to show by wliose direction, or with v?hoe^ permis- 
sio», or for what purpose th« car was being drlvrai. William C, 
Pansier did not testify in the case. 

Defendarit argues that th© court erred in perndtting evidence 
to l>e received as to certain slEld marks on the road at the scene of 
the accident and cites Sillingsby v. aullok . 852 Moh, 235, 235 
H. W, 235; Marine v. atewart , 165 Md, 69 8, 163 Atl. 891; JoJ-mson v. 
C, & A. R. R . Co. , 193 111. App. 632; Mer^ants Loan & Trust Co. . 
y, BcuQ ^e. j ry 115 ill. App. 101. We entertain no doubt that upon lay- 
lag the proper foundation, evidence as to skid marks in competent in 
a case of this nature, Briley Vy ^uasbaiua . 253 Pac. 223; Vedder v . 
Bir el'ej y 267 -Pao* 724. Indeed, evidence as to these skid marks was 
given by defendant, and much of tiais evidence offered by plaintiff 
WAS received without objection by defendants, who cross-examined on 
it at length. We hold there was no reversible error in tbie respect. 

It is argued the court erred in refusing;, to give defendants' 
suggested instruct ione Bos. 1, 5, 6, 7, 8, 9 and 10. At the time of 
the trial section 67 of the Civil Practice aot , since reoealed (111. 
State Bar stats. 1935, chap, 110, p. 2447) was in foroe. It pro- 
Tided, in substance, that instjructions by the court should be given 
only as to the law of the case, be in writing, in the form of a con- 
tinuous and oonnected narrative and not a series of separate in- 
structions; that the parties lulght at any time submit to the court 
suggestions orally or in writing, and before the ease was argued to 



t^Mii0r» :^aoJ. fio 
bft. - 

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on , .fc-^iiiiaoo noisxXXo© 9At 

.y apgiv'c' ; .. , . '-^dl ,?.H'^'i-*: '.l^^^JtLTM .'^^^ •* •* 

.^^: . --ii_ii£fiii.jy4'i ■ ; ♦ ' '- L-Ai^LJL-sQl 

-Y«i flofjt; trinit ;J-o^jcjc»l? on nj:s: . . <iA ..f.Ci -'j. ;. ^-r^HaM^d .y 

. ; , , jo', fiiiof 'fount- ;'ii **-'i"- ^un 

-.f.- -. , - '10 



the Jury th« parti** akioiild be giTen an opportunity out oi tho 
proienoe el' tno Jury to r««4 the instructions which the ceurt pro- 
posed to give au& to make other or furtaer saggeetions eib to mat- 
t«ro emitted, or ol>j«otiono »» to cuoh parte thereof at were deeaeA 
to be iricorreet or mleXeadlng, "eueh suggeetlonc or objeetions to 
be soeeifio"; that 8ugg«»tione not adopted and objeetions Butde but 
overruled might be aade a ground lor review but must be made before 
the Jury retired from the bar or within such further time as the 
trial eourt aiight by order allow before the jury retired fro» the 
bar, or the saoae would be de«i<ied to have been waiyed. Defendants 
did n»t aake speeifie euggeetione or objectlona. On the contrary, 
they submitted ten nambered instruetione, and the only objection 
•oaoerning refusal thereof is as follows: 

'*jii4r. Denaen: ^ow , if the Court please, the defer'dacte at 

this time deoire to object co the court's rel'^aal to incorporate 

into the def «iiidantB* instruotione the eug^Etstions I'or inntruetions 

tendered by the defendants, whicM are ne follows; * " 

followinig mdoh are the ten inetraotione rec^uested. We thin)t, aa 
plaintiff contends, that the forss in ^hicb these requested inetrue- 
tions was submitted eeuld hardly be called specific suggestions "to 
aeelet -th* court in fully and accurately instructing the Jury as to 
th« law* within the meaning of lorrarr section 67 of the Civil Prac- 
tice act, Hotsrever, we have given attention to these requested in- 
Btructiona, us well as those Which were feiven by the court. The 
lenues in the oaae v,'ere eisiple, arid InstruotionB concerning the sasw 
were i'uil imd accurate, covering well the propositions of law ean- 
cemln*.: v loh defendants desired the Jury to be inforiiied, 

Defe^daTits discuss thcee r©<tueetfcd instructions in detail 
and cite eases in which it has been held by t-xie court aoid the 
8*preae court not erroneouo to give the same, Ihe question, however, 
of whether it it error to tiive a certain instraotion is quite dlf 
ferent from the question arising upon a claimed error for refusal to 
give it, A requested instruction jaay be entirely free froB error; 






aei^eet 



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nevertheless, if thn propofsltlon ol' Xaw vnXoa. it aaiiouncea has 'b««i 
cover«d Isy oth«r instruetionia givea to txie Jury, it le not error to 
refuse It. Indeed, the number of inetruetlons upon a given proposi- 
tion of law ahouXd not be needlessly nultiplied and too luany tend 
to confuse the jury to suoh an extent as to muke & reversal neces- 
sary. We hold there was no reversible error in the rulings of the 
eottrt on instructions given and refused. 

i'he controlling questions in the case are rais&d by the 
contention of defendaKts tnat the judj^jaent should not be alJ.owed to 
stand against defendant WtlliaBi u. Panzer. The onlir evidence tend- 
ing to connect hira in sjriy way ^'ith t>ie accident is recited above. 
He wes the owner of the Luick autowobile; he was the fath(?r of the 
driver, who was a minor, The inference perhaps would be .justified 
that the eon was driving with the parmisaion of the father, but ther« 
is no direct evidence on that jjoint. The father diti not testify, 
and the son ^',ave no eviilenee othar tnan as above reolted ay to these 
aatters. The liability of the father cannot be inferred from the 
parental relation ship. The '♦fs.isily purviose" doctrine in cases of 
this Jcind has after muoh consideration boen repudiated by the 
Sttj^reme court of Illinois, ArXin v, Page. 287 111. 420; White v^ 
S«»l %z . 342 111. 266; Anderson v. Byrnes. 344 111, S40; IAii l<>r v.. 
MoHa^le^ 263 111, App. 471; X-pwaeriailk y. Gibbel . 263 111. App. 384. 

It ia contended in behalf of William C. Panzer that the 
proof wholly fails to establish $oint liability, anti that the Joint 
Judgjraent oaiinot therefore be permitted to st-:aid. It iP also urged 
that a judi^ent against eeveral defendaKts is a unit end cannot be 
reversed as to one or more of them and affirmed as to others, citing 
tivak V, GhicaKO & Brie R, R. Co.. 395 111, PI a, and kcDerrott v. 
A. B.C. Oil Burner Sales Corp,. 266 111. Apn. 116; but the un- 
doubted rule announced in those cases has been changed by the Civil 
Bract iee act and so longer prevails, Itinnis v. Friend . 36C 111.380, 



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PlaintliT doe* not contend that there ie aay «»Ti(iMi«« In 
th« record from wViieii tiie jury could reaaonnbly find n«^lig«nc« 
ai^alast fillia& G. Panser, but aasarte -that since plaintiff *t 
deelaration &lleg«£ agency sni d«f<pndants 2 iled only a plea of tli« 
gmneral 1p9u«, this plea <iid not put in lssu«i the ownerthip, opera- 
tion or po«s«H8ion ot th«> %utoraobile, wnloh stands adn^ltted, and 
that vhere the ownerahlp, operation and poasession oi' the autoue* 
hll« ar« admlttad by the pleadings, no eridimee is necessary in 
order to establish the joint ilaoiiity of defendants. Plaintiff, 
relying on the rule anneunoed in M^j^ult a y. hoGjt^rlfii^^, 137 111, a?0, 
afterward aa»ertftd in Chioa^o U n ion Tract ijon COa_y, Jerka ^ 227 lil, 
95, and followed in a long line of cases in this and the &ip]r«ai« 
court, asserts tliat joint liability is udmitted by tiie ol adings, 
Xhe ruld iB not as 1»road as plaintiff contends. V^hile, geiierally, 
in tiie a^set^ee of a special plea, ownership, operation or poBsessisa 
of an instrosentality by wuiek an iaiury was inflicted, Ib adsitted, 
on the contrary, where the declaration allefi;e8 a joint act or acts 
of negligence on the part of two or more defenaarits, such loiat 
aegliKejfice is not ad^t^itted eyen in the abeenee of a special plea. 
In such eases the burden is en plaintiff to establish the joint 
negliKenee as alleged in hie declaration, 'fhie class of cabas does 
not fall within the rule announced in the Jerlca and similar oases, 
but constitutes an exception to the general rule there ateted. 
Yeas el ▼. Alexander . 58 Hi, 254, sustains this Tiew, i>laintiff 
owner there sued several defendant owners of tresoassing oattle, 
alleging in his d<«elaratieu that the cattle belout^in^ to the se-ver«l 
owners ii^parted an icfeetleus disease to plaintiff 'e cattle. It 
was aeld that the burden was upon the plaintiff alleging joint neg- 
ligence to prove it, although defendants had filed only the general 
issue, and that a defendant impleaded in such case could net plead 
la a1»ateffieni, and for that reason was permitted to raise the ques- 



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tl»« •f hit joint liat»lllty «n<s«r th« pl«» tf not ftuilty. Aloe, 
*n Untto d Brewor ioQ v. Bats, m 111, A^^. »9, wh«r« oeYeral d«« 
for.flwnto fll*<l a uloa of aot guilty to s. oharge ©i* Joint nogll- 
gttnois. It waa huXA that ro«»ri» proof of ©wr«r«hlp of tiio i««t»UE«it- 
ality by which tha injury waa Infliotad, *ra» not ouffi cleat to «»- 
tal;llsh liability unier a. plea of eat guilty, 

1» M cDarmptt ▼, A.K.C. Oil Bumar iSaqeo Coyg .^ 2ft6 Ul.Apik. 
115, plaintiff oued two eorrtoratieiia, allc-gifig liability by reaaaa 
of iaiat nagli^exiec in allowing oil to leak fren a taok aad aaro- 
loaa ioctalla.tiOB of t^a plant, together with joint traapaaa ^i. 9l 
ayaij . iho court said: 

"i'lalntilf *a (clalrr. la foandad upon and the deel&ratloii 

ehargeo tiaat the two defendanto coayBitted a tort, tne 2al*»B cor- 
poration %9 priiieifal axx^ th« Automatic Corporation a* a^^nt, or 
that %ht two oornorations 4i<ot«td in concert aa Joint foaeora. It 
hail alwaye haas tha l«w that ^hPT9 twa or eiore daf «r<dai:.t8 are 
jfointly charged with the eoLaiiissiot.. of a tyrt t>ia joint aotion 
of the dofeedante la nogatlTOd by & i^lea of not iiuiity. (iftftUl 
J, Aqpiyar.ior. 58 111, ?'S4; Petero ^t. Howard. 2w^6 iii, App. 610; 
fcgilala V. jfeoauit^ ^. 236 111. App. «9S. S98i BladP ▼. ^tte of t\ . 
DCArhQTii ^ilfi^. Qor^ f. 245 111. App. 4S4, 439VP 

It waa held taat in the absenod of proof of joint acts of n«glig«»ad, 

the ju«!gm»nt waa erroBeoua an to ono of dofendaknto, i^d en tha ott- 

thori^ of LlTtUc ▼. Chicago & Srie H. Co. . 299 111. 213, the judg- 

acst waa rev sorted and the cause roixandad a* to both. 

In Mai^talt v. Ma^uiy^; . 23d 111. App. 296, plain tilf sued 

husband and wife, alleging Joint negligenoe in the operation oi ma 

automotlie own«d by the wife, ind defendants 2'iled a plea ol' not 

Sullty without epeelaX pleas. 7he proof auowad tne operation of 

the autorao^ile by tiie wife alone. It was hsXd tuat a juigaeat 

•gainet the husband was erroneous. The court said: 

"It Is the genc^ral rule ti:xat u husband is not liable for 
the torts of his wifa except when the wife acts aa the a^^ent pr 
sarv4r>t. of tue .aaaliaiid, taJid ttisn lu^dor tue toctrine of respondeat 
superior . Mo^affiar ▼. Cohn. 115 111. App* 31. 

• * * 

*i'laietiff alleged joint ownership and operation, and 

nrguee that the general issue adiidts hoVu ,iiieg**tions under the 
rule announced In Ca^ioi^o Union Traction Co. ▼. Jerka . 227 111.95, 



iwii 



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in'"*.,,. 






anl many other similar oiiaeB. * * 

"•it is laid dowri in all works on plendiag that If two or 
Bore persons ar«f »us<J for ^>. tort co-imltt^d ty one only, a uls- 
jsindsr cannot ^« pleadsi; the roper plea lor thoes not ^^liilty !• 
the general issue.' Yeaael v. Alexanae.r . 53 111, 255; i!icpnoji;y 
LJKfat A -Powsr Co. V. ailler . 5?03 111. f)18. 

'^fe are rel't-rrel lo no cases chaxiglng this rule. It 
voulot be unreasonable to stretoh the rule in the Jerk hi ease to 
include the criarge oi joint liability." 

In tymn y. Stem . 274 Hi. ^p, 667, it appeared tiiat de- 
fendant wife alone nei<,lig-«ntly drove an autoaobils owned by ths 
hiiishand, who was made a defen(1ant hy the in,1ured plaintiff. Plain- 
tiff in his declaration nlleg-ed joint negligence, Defendants 
pleaded the general issue ^itnout a speolal plea hy either ef then. 
nie evidence dlselosed that defendant hushand was not present at 
the tirae of the accid«it, smd this court, following M.cH?U.e v. ;..o- 
^ulgg, reversed the joint jud dcent figalnat th«a and reainded the 
eauae. We there said: 

"This court has held t tat in a personal injury ease where 
the declaration charges that defendants J ointly oo.iualtted ^^ 
wrongful act , the plea ©f not guilty io^s not adiuit the joint 
©rners.tip s*nd operation of the instruji;sutaiity involved, Acdals 
V. atcauigg . 236 111. App. 29'j; Blade ▼. aite of Ft. Dearborn Eldg . 
Corp . . 245 ill. App. 404; McDer^oott v. A..b.C. Jil /Jurii^r ^»ile , t 
Corp . . etc, 266 ill. Apa, 115. 

■» * * 

*In the instant case we hold tnst the plea of net guilty 

negatived tae joint tort charged afeaiiist the def ei.,3ai.te. *• 

In later cases ta.ie uourt una the ^upre^ue court Kodillsd 
the rules aanouBosd as to other points in aahta^ v- Ao^ui^ft . 
( Barran v. Adanich , 251 111. App, 4<ii; Uicala v. i.en.on . S5a 111, 
App, 2b:i, al'fixmed hy the ciupreaae court In 543 111. 6U2) but tne 
rule ann«unced In the former oases th^t wh<?re the deelaratien al* 
leges acts of joint negligence by several defendants, and defend- 
ants enter a pita oi not t/ailty Ai^.liout epecial pleas, the burdsa 
is east upon plaintiff to prove the joint acts of ne(^lit!,ence, as 
alleged, h^is net been changed by these later oases which ssea t« 
annoxince a rule of .convenience only to the effect that in aa aetlsa 
against a servant for hie neglieenco, plaintiff «ay also jola his 
■aster, whs mmj bs liable upon the theory ef respondeat suaerier . 



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Tne deelaration here allege* joint acts of negligence against both 
defendauits, TUe theory of reapendQa'^ ggperioy is i.ot n^t forth 
In any count of the declaration. So far aa Wiiii-ija c. Panzer is 
concerned, there is no proof of negligence at all, an-l the judg- 
ment aigainet him must be reversed for that reason. There is no 
error as to defendant Prederiolc C. Panzer, and under the rule 
announced in Hinnip y, grlend . 360 111. 328, the jud^nent aa to 
him Trill he affirmed, 

JU.DCa£[gJiiT AffyiRMISD A3 TO J'RSnaRIGK c, PAjszaa. 

J^MMINT RB^/BRSISD A3 TO WILLI AK. C. PMZ3R, 

MoSurely, P. J, , concurs, 

O'Connor, J,, speci^xlly eoncurring: 

The evidence shows that Williaun G. Puraer, tlie father, 
owned the automol)ile: that hia 13 year old son, Frederick, the 
ether defendant, took the autoiaohile and went to a party for his 
own pleaaure and net on any errand for his father. 

A father who per&'^ita his son to use an automobile for the 
aon*8 own pleasure is not liable for the torts of his son which 
oeeur while the son is so using the automobile, ighite v, Seit^ . 
342 111, 266, All the eyidenee shows that the father, under the 
law, waa in no way to blame for the unfortunate accident, Jielaoi^ 
T y Stuta Ghioago Factory Branch,. 541 111, 387, 



,fe«?RTi'J:'l« 9\i III IP atiK 



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38660 

ORA. L. PJSRRy, 

Appellee, 

W. U. DARLlKGTOfi et al.» 
Serei'da&ts. 



WILLIAM D« MEYZRIfiO, 
Sherifl* of Cook County, 
Appellant* 




APPEAL FROM CIRCUIT COURT 
OF COOK COUfiTY. 

28 5I.A. 582 



MR. JUSTICE MATCHETT BBLIVERSD THE OPIKIOIJ OF THE COURT, 

Oa May 14 » 1931, an execution issued to Steyering, then 
Sheriff of Cook county, upon a judgment entered in favor of W. H, 
Darlington and agadnst K, I, Perry, husband of plaintiff. July 
21, 1931, Ueyering "by hie deputy levied under the writ upon goods 
and chattels in the apartment occupied \>y the judgment debtor and 
plaintiff, his wlfe« A custedism was put in charge and remained 
In possession of the goods and chattels until July 30, 1931, when 
upon order of the judgment creditor, the levy was released. This 
litigation is the sequel to that levy* 

September 11, 19 31, plaintiff filed this suit, making defend- 
ants thereto Meyering, W, H. Darlington, judgment creditor, his wife 
Mrs, W, H, Darlington, and luatin S. Tomey and Frederick C. Jonas, 
who had acted as attorneys in the matter. She filed a declaration in 
five counts, in each of which she charged that these defendants vi e^ 
>rmis broice into and entered her premises, assaulted her, etc. All 
the defenriAnts except Meyering entered pleas of not guilty. Meyering, 
sheriff, entered a plea of not guilty as to the first, second and 
third counts and a deiaurrer to the fourth and fifth. The demurrer 
was overruled, whereupon he entered a plea of not guilty as to thess 
counts also and special pleas of justification to the effect that hs 
was sheriff; that he had received the execution on May 14th agamst 
fi. I. Perfy, who lived with his wil'e, plaintiff, in an apartment. 



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a»iLt ^:^aliQX9Ji. oi Mw:; -josxe a& ,X£91 , *•! y-^ "^ *^^- 

,ii .W "lo icvs't rix bQteiaii .. „3^jx>wt, « ao^« ,^*aMOO ^c^ tl-xsdia 

afcoo^ uoqi- ^i-xw 9di rtabtiu fceival ^ju;.-2li iixl x^ igaX'XBX'^^ ,X^v?I ,X2 
fittB ioid9b in&sa^hkiX, sxii x;cf baJfcqjuooo in^ieiis^B HSiS nl aX' ' na 

airx ,o9auix(fi a*. ,-X(..ji: ■ i-iliit *^' ' ■ ■^<I*' 

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.aaaol. .0 iLola»fc«l'4 Jbaa x«"*o^ ^"^ ni^«M* bm »no^gniXx»€l ♦« .W ,aiM 

ai AoiiAi^loob B bal- . i axsaxioite «jb b^J^oa ft«ii Oilw 

It. IX a#n«,br»ldft f-adxl^T ^^i£* ■ M«os «t11 

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jniTaicaM .^;fXli,'i^ *on to a«»Xg Jb9T»;Jn*» artxislCfM *f 

bnm hactt9a .isili 9di oi ae^ x9^^»^ 

if»xtm»b tR .iU'tn ba& dtii. 

•••jU 9i MM xillirg ioa to »9lq a bBia: 

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and that by bis deputy duly aopolnted, he entered peaceably and 
leTied on goods not exempt and in good laith, acting by his 
deputy, etc* 

Plaintiff filed replloations to these pleas to the effect 
that Meyering "of his own wrong and with force and aras and without 
cause, oouiznltted the several trespaeses", etc. ^e cause was tried 
by a jury. Motions for an instructed verdict to all the defendants 
except keyering were granted* As to Meyering, the cause was sub- 
mitted to a Jury, which returned a Terdiot of guilty with damages of 
#12,000, JPlaintiff reaiitted #8000 and the court, overruling the 
motion of defendant for a new trial and in arrest, entered judgment 
for |i4000, from whi^ defendant has appealed. 

It is urged taat the verdict and the judt^Fient are against 
the manifest weight of the evidence; that the court erred in deny- 
ing a motion of defendant Meyering made at the close of all the evi- 
dence for an Instructed verdict on the grovufid of variaiice, in deny- 
ing the motion of defendant to strike out certain incompetent evi- 
dence, and In giving erroneous instructions to the jury at the re- 
quest of plaintiff; .that the judgment was so exceseive as to in- 
dicate passion and prejudice on the part of the jury, and that a 
nam trial should have been granted for that reason. 

The contention that the verdict aaid the judgment are 
against the manifest weight of the evidence does not appear to bo 
entirely without merit, since the evidence submitted in beiielf of 
plaintiff is in some respects inconsistent and inherently Im- 
probable. Q.UOCJC ling V. U. S . . 140 U, S, 417; C. &. A. R. R. Co. 
T. Yremoieter . 112 111. 346; highley v. American Excnange i>at'l 
Bank, 86 111. App. 48; 0. f. & St. L, hy. Oo. v. DeFreitas . 109 
111. App, 104; Brown v. Chicago Pity Hy. Co .. 155 111. App. 434. 
There are also many cases which would sustain a reversal, notwith- 
standing the remittitur, because the verdict was so excessive as 



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oJ'^i;-: bLuoif rioliiw seejao -^ri^Ki o«Xa bib *i»dT 
flift satnzDscf ,ic;jd'J:i*i0iW arid" snj'JS*''"*** 






to ahow passion and pr«Ju?Hce on the part of the Jury, Loewnthal 
T. Streng . 90 111. 74; Wahash R. R, Co. ▼. Billiiig|B . 212 111. 37; 
Bldem ▼. C. R. I. & P. R. R. Co .. 144 111. App. 320; LoftuB v^ 
111. Mldqaod Goal Co .. 181 111. App, 197, 

Defendant , however, further contends ean estly that the 
court erred In adciitting tn evidence, over the objection of de- 
fendant, the execution under which the deputy sheriff acted, and 
that the instruction in favor of defendant, requested at the close 
of all the evidence, should have heen ^iven for the reason that 
there was a fatal variance, in that nowhere in the declaration was 
it alleged that defendant lieyering was the sheriff of Ci-ok county, 
nor that any of the alleged treapasaee were coininitted by him as 
sheriff, nor that he acted in the matter of the levy through a 
deputy shf'riff , or that the supposed trespasses were cojomitted 
under color of any writ or other process. In the title of the d«o« 
laration and in the several counts, defendant Meyering is named as 
•William D. Meyering, sheriff of Cook Co-inty," but defendant con- 
tends (and rightly, we Uiink) that this title is merely descriptivs 
and constitutes a« material part of the declaration. West Chicago 
Park Coituaissionerg T. Schjllinger . 117 111. App, 525; Itoll v. 
Sanitary District . 131 111. App. 155, and numerous other oases whioih 
so hold as to other public officials, are cited. We do not doubt 
that the same rule would be applicable in tiie case of a sheriff. 
Defendant argues that the ultimate faet, which the evidene* 
tends to prove, is that Meyering as eneriff of Cook county, acting 
by his deputy, conimitted th#8e various trespasses, but that this 
ultimate fact is not alleged anywhere ii the declaration. Defend- 
ant cites a number of cases which state the general rule that a 
declaration Huet aver and the evidenc* establish facts aut/iorising 
& recovery, Hellenbeek v. Witiiiebago County . 9 5 111. 148; BucJ^ley 
▼ , Kandel BroS| . 33^ 111, 368. These cases sustain that rule and 

ji 



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^di J-jiJiii '^X* a© VI 15 9 sihOBiaoQ tmiii'xu'X .iiKvawo^i , *J3aJ^ii»lay. 

fX^auoa aio -*i» «iS* 5*5W ^aut iav,ii' & Jiiui&aotsa ^axu fesa^^Xia *1 

-i&©^ ©X.^14 9Xfcr . i^bno 

ttM h&sie0 si ij/xia9\;sM. $ sa&iiaa't9k ,«*a«fl« X«T:*\r»e «|4^ roJ:J^jOTtfiX 

.T ii.&}ti ; , qA ,XXI ?XX .■xa.-^ui XXirtigS ,v aieiioiaa.liutseO ai^^X 

»lriw ft«SAe idrLro Buox^Biua bm .SW ♦*^C;- • i-l . ^oi^ jToM. 

iifofc *oa Oi . . -o oiXcfif^ iE:«ji*o yi'- »« liXorf o« 

»oa«i»XT© OiU noli. 'i$»mlilu •jW cf^/i^r e«ii»ny8 i mbmi'XiiQ. 

^alsli - rlBlXd«*«« •oaohlv* «Kitf hnm tov« .tajwa iaM9i.tJ»t«X&»fe 

..« dXirt ;t«iW £.jiJs;Jfsi„'e a»e.'. .odC .XXI,^£e ,^aj23£JebagiL-tl 



al«o hold that a declaration failing to allege a fact, vritliout the 
txietenoe of which plaintiff was net entitled to recover, does not 
■tate a cause of aotion. Tho undisputed eridence shows that Meyer- 
ing did not participate personally in the alleged trespasses on 
Vhioh the suit is baeed« The declaration alleges such personal 
participation "by hlB. 

Defendant suggests that the execution was admitted in 
•Tidence and the motion for an instructed verdict for defendant 
"because of variance was detiied upon the authority of 3kalu v. .Lehon . 
343 111. 602, That case is, however, clearly distinguishable in 
that the declaration there averred Joint negligence oi a master and 
hla servants the servant upon the theory that he was neglig«it; the 
saaeter upon the theory that he was liahle for the negligence of nis 
servant upon the principle of respondeat superio^i; . here, the dec- 
laration alleges trespasses vi et aritii,^ in every count. The sneriff 
is sued personally* The deputy through whom he acted is not jpade a 
party to the suit* The aut>aoritie« seoBi to nold that under such 
oircuniBtances it is not necessary that plaintiff invoice the doctrine 
•^ respondeat supariQa' in order to charge the sheriff. Under the law 
he is nresent whenever and wherever he acts by his duly authorized 
deputy in an off Icisd capacity. If the deputy while so acting cob- 
mlts a trespass, the sheriff is personally liable as if he were 
present. The allegation of the declaration of a trespass by the 
Sheriff i^ substantiated by proof showing that he trespassed by his 
dsputy acting in an official capacity. TJaere was, tiierefore, no 

variance. 20 Encyc. PI. & Pr. 14S; 57 U. J. 9 51, sec. 643. Indeed, 
some of the cases seem to hold that in such case the sheriff, and not 
the deputy, should be sued. Campbell v, Phelps . 18 uass, 61. At 
any rate, by the better reasoning and also by the weight of authority. 
It was not necessary at coBuuon law in sucn case to cliarge that the 
sheriff acted ix. an official capacity. Young v. lon^. 124 Wash. 460; 



no B»B9Mqa»xi b&-g9ila tiii i<i -^liAJtoK-s^cj; sukjiidiixiii'isq ^en MJb ]|nl 
IjBaoeT:sq doas • loi^arMtl^^lf ©Iff ^Mouetf ei jiiot -^xl* iioirtw 

: to elqtoaitq sAS tm^v iitusm^a 

iteX ed* "XdliflU .I'tiTc^riB srfi ^jin. i»hi& tit X' ?&ai^tioae^a to 

9i«w »i' 'ti iX \i:iX«[\osi»«r ai rtiTfcjrfe »rt* ««s«qaei« j . J i.:r 

»ii* X<J ««4Bqe' iiiX»»l> art? 'lo «ol;r«:il«X£ji »rfl' ,J«9a«T? 

eixi ^d bsaaaqaaT.^ ail J-oii* ijnivrorfa Teo-K? t.^ fii*^^*!*^!*?*^^^* ..i fti'isjla 

:^di iiuiJ o.'ijto 0-^ ^a«o /ojj* "X WobX ao.uioo J« Tc:siiya«fr«a^oa a«w *! 



Jaokaon t. Harrleg . 236 Pao, '534; Curtig v. gay . 37 Bart. (i»,Y,) 
64; Moorea v» Winter . 67 Ark, 189. 

Th«i Instant suit was begun prior to the date upon which the 
CSirLI Practice aot 'bftcatiiM effective. Whether the allegations of 
this declaration would be sufficient under the provioions of that 
aet it is not necessary to coneider or decide. 

For reasons which we have already Indicated, it was iitport- 
»at that the jury should be acourateljr instructed aa to the law ap- 
plicable, and defendant argues serious errors in this respect* 
Complaint is made of instruction Mo, 1 fe,iven by the court, which is 
as follows: 

"The court instructs you t^iat an officer, altaoug/i armed 
with a writ of execution, acts at his peril and when he levies 
upon the property of a person other Uian tae defendant in the writ 
and asDunee custody smd poeseesion of such person's property, he 
is liable and the writ will be no defense in a suit for treapass. 

If you find froii tiie evidence that the plaintiff has estab- 
lished, by a preponderance of the evidexice, that tiie defendiiiit, 
William D. Meyering, sheriff, by his deputy, entered into her premi- 
ses forcibly and against her will, then he ia guilty of trespass und 
it is then your duty to find hiia guilty and assess plaintiff 
damages in such sum as you find from the evidence she has sustained." 

It is objected that the first paratgraph of this instruction 
ie entirely abstract and has nothing to do with the facts involved 
in tlie caa-^i at tar. This objectioxi ia good. Moreover, the instruc- 
tion assumes that the property levied on belonged to plaintiff when 
there was evidence to the contrary. 

It is not true (as the instruction says) that the writ would 
lie no defense to a suit for trespass where the officer levies it 
upon the property of a person other than the defendant in the writ. 
If the officer acted in good faith in such case, plaintiff would be 
limited to actual dat^ages; if, in f^ujt, he had no writ the question 
of hie good faith would be iniffiaterial and plaintiff might recovf-r 
Bet only aotual but punitive damages, Becker v. Dupree. 75 111. 167. 

The second paragraph of the instruction, by whicu the Jury 
was told that it ml^t "assess plaintiff damages in suoh sua as you 



i 

't« artoitASSllJs ©fid' asii^tsxfW ,»Ti;l©»'l't» »fii*i«»el ;Jo» ©ol*».«t«i IlvlQ 

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si daJLrtw , fitjeo ^di ^ef fl»vig X .oE a0i*oi5fxi>«£u 'to slweK. ai ^fttelisaciO 

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-&irt;^pai aiii ,'i0VO»ioM » ,5© aiii'i" .HK-a if^ 5>»J3» aitJ" fli 

M»iiw 'ftlitxlBlQ oS bda^oX«cf ao &9I-V9X vs^Q^^q »^* ^*^^ aaauJMSJB woi* 

erf ftXuo'/ 'ru^fili;!; . 'oo'a Ski b'SttyM a«oi'l'tO «d* tl 

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find from the eyldftnoe she ha« euatained," wa« alao erroneoua. 
Plaintiff was not entitled to recover damages unless the Jury 
from a preponderance of the evidence found that defendant wae 
guilty; that she had sustained damages; that the damiiges were 
alleged in the declaration and were the iitunediate or proximate 
result of the guilty acts of defendant. If damages had been sus- 
tained but were not alleged or were not the immediate result of 
the wrong committed, then plaintiff was not entitled to recover 
therefor. We hold the instruetion was misleading, inaccurate and 
oonfusing, was prejudicially erroneous and regardleue of other al- 
leged errors would compel a reversal of the Judgment, 

Complaint is also aade of instruction ^o. 4, which is as 
follows: 

"Tho court instructs you that a trespasser is one who in- 
trudes upon the person or property of another without the consent 
or permission of that person and without authority of law, A 
treapaaeer is liable for the natural and proximate consequences of 
his conduct. If, in conuaittinf a trespass, one inllicts injury 
upon another either physical or> mental he is liable for such in- 
Jury, If a trespasser uaes force or acts in a r'^cklees imd wanton 
manlier, and in so doing injures another, then he is liable for 
punitive damages. Punitive dbuaa^^ea are such damages as, in the 
opinion ox the Jury exaaiining into tne facts of a particular ease, 
will act as a proper punishment and exatuple to prevent further 
trespasses of like character*" 

This instruction in effect tells the Jury that if there is a tres- 
pass by force, the trespasser may be subjected to punitive damages, 
fhls Is not an accurate statesent of the law. It is only when the 
trespass is committed wilfully, maliciously or wantonly that puni- 
tive daoxages may be saiowed. In 17 ti. J. 9 74, tne rule as to puni- 
tive damages is stated as follows; 

"In order that there may be a recover of exenqtlary damages, 
there must be present in the circumstances soae eleiaent of malice, 
fraud, or gross negligence, otnerwise tae measure of damages is such 
an SBOUBt as will constitute a just .-md reasonnble coiupensjation for 
the loss sustained, and nothing more. In other words, the wrongs to 
which exemplary damages are apolicable are those wnich besides vio- 
lating a rignt, and inflicting actual daiuages, import insult, fraud, 
or oppression, and are not merely injuriec, but injuries inflicted 
in a spirit of wanton disregard of the rights of others, * 



14 TO-,- LUiUa^lQ. smsii ^ixtiiimaoti gaovw till 

ban «;^j3«i/ Daaai: ,jjaxi>«»X«it!»i «»^ a©i. .'iol»ic»|l# 

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To the same pffect ore QutXer v, SmAtii . 57 111, 252; Hhodes«.Burl'o yJt 
Co. Vt Gartner . 133 111, App. 164» The inatruction is also erroneous 
beeauee It told the Jury in tiie hypothetical case taat the trespasetr 
is liable Tor punitive damages* Punitive deU'iugeB are net allowed 
a« a matter of rl^-ht, The question of whether they should Ise al- 
lowed in a proper case tlv/ays rests ic the discretion ol the Jury, 
The instruction infcmied the Jury that under the cireumetances in- 
dicated defendant would be liable ae a uiatter of law for euoh 
punitive damages. 

1» W. St. L. & P. Ry. Co. V. Hector . 104 111, 296, our Su- 
preiue court considered a eiiidlar instruction, wnicn told the Jury 
that plaintiff under given circujcastances was "entitled" to such ad- 
ditional damages as the Jury might in its Judgment allow by way of 
punishment, The court said: 

■The vice of thia instruction coneis^ts chiefly in the fact 
that it states the rule as to vindictive or punitivn damages broader 
than the law will warr.int, Wlaere an injury is wantonly and wilfully 
inflicted, the jury aay, in addition to aotual dax^ges sustained, 
visit upon the wrongdoer vindictive or punitive damages by way of 
punishment for such wilful injury, but it is not und'=;rstood that the 
injured party is 'entitl«d* to such damages as a matter of right, 
and an instruction that tells the Jury, as a matter of law, the in- 
jured oarty is 'entitled' to such damages, goes too far, and is for 
that reasen vioious. " 

The instruction is clearly erroneous, for although defendant was a 

trespasser, and even though he were a wilful trespasser, plaintiff 

would not be entitled to punitive damages as a matter of law, but 

only in the discretion of the Jury which might, or might not, award 

punitive damages. This rule is important in this case because of 

the fact that the uncontradicted evidence shows that defendant iteyer- 

Ing was not the actual wrongdoer, and that if he was liable at all, 

it was only by reason of the action of another. 

Complaint is also iriade of instruction lio. 8, which is as 

follows: 

"The court instructs you tuat it is not necessary, in order 
t« constitute wilful or watiton couduet in this case, that the plain- 



V 



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tiff prove that defendant, Williaai D. Meyerlng, eh riff, acted by 
ill will toward the plaintiff, bat it is aulVicient for the plain- 
tlif to Pl-vOW that deferdant, Williara D. i^eyering, slieriff , acting 
through his deputy, acted with reoiclass indifference to the cir- 
cumstances or without any care for the life, person or property 
of the plaintiff," 

It is urged that this instruction asQumes by implication the guilt 
of defendant and therefore constitutes an InTaeion of the proTine* 
of tho jury, and we think the instruction is Justly subject to 
that criticism. It is, of course, error in any instruction to 
assume as true any fact which is in dispute. Hawk y, Ridgway ^ 33 
111. 473; U, & M, W. &y. P ^i v, Moranda . 108 111. 576; I, 0. PI. a. 
Co. ▼. Zaag . 10 111, App. 594; griediaan v. Shuflitowski . 132 111. 
App. 5. 

-Jor the errors In taeae iaatruotlona the jude=,in3nt ia re- 
versed and the cause r^isianded for another trial, 

ticSurely, P. J., concurs. 



O'Connor, J,, specially concurring: I agree with the result but 

not with all that is said. 
Instruction l^o. 4 would in no 
way help the jury, but only 
confuse. 



^ ' , lli.-^' Ill 



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38709 

PBOPLE Off THK STATE Oi? ILLI2.0ia ex rel. 
OSCAR iiKLSOiJ, Auditor of PuTalie Aecount» ^.— 
ol* the State ol' Illinois, C-"^ \\ 

▼»• 

LOOAW S(iUARE5 .'JTATS AHD iiAVIiJaS BAiSH, 
a Corporation, 



LAi'AYiSTTE COUNCIL BO. 361, KNiaiiTS OF 
COLUMBUS (Intftnr*»ntng Pfttitioner) 

Appellant, 



▼»i 



VILLlAi. L, O'COKKFJLL, Receiver of Logan 
Square State aiid Savings Bank, 
( Respondent ) 

Appellee. 



APP-gAI FR(»: 
GiRCI.Ii COURT 
0? COOK GOUHTY. 



loA© D O ^ 



m^, JUSTIOB MATCHSTT KBLIVSKgB THB 0]?IKION ©F TIB COURT. 



This appeal is by i^eti tioner, Lafayette Council i<o. 361, 

iLnights of Columbua, from ai'i order wiiicu iienied. ita prayer I'or the 

a 
allowance of the eium of |27&2,e3 as/preferred claim against the 

aeeets of the Logan Square State & SaTings Bank, in vhioh C/*Conueli 

is receiver. The matter was heard upon exceptions to the report 

of a master. The exceptions were overruled and an order entered 

denying^the prpferenee hut rill owing the amount due petitioner at 

the cloeing ©f the hanJt as a general claim. 

The faets can hardly te said to he in dispute. The bank 

wae elosed hy the auditor of rjubllc accounts June 17, 1932, and a 

receiver appointed, of whom o'Cennell is ouoceseor. The petitioa 

was filed December 16, 1933. It averred a credit in its favor at 

the closing of the baiik to the aciount claiaied, and it ie eamestly 

contended by petitioner that for the reasons hereinafter stated 

this credit at the bank was iiupressed with a trust in its fivor, 

and that the olaim should therefore loe preferred to tnose of other 

creditors. The claim for a preference is based primjirily upon the 

theory that tne fund in the bank was irapressed with a trust because 



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.r.irM- , ., : '-Lisa TT^LOTA^ 2iOITi-l. . 

^i:fiu/ooo* olirfi ^^ %<f b»s0l9 saw 



of an agreamwit made at tlie time th« account of petitioner waa 
opened at the "bank. The facts in this respect appear to "be that 
on or about July 27, 19 31, Peter 3, Riehlowaki, who was then 
assistant cashier of the bank, which has since Gio£.ed, met with 
the trustees and officers of the Lafayette Council in its offices. 
Richlowaki was also the treasurer oi' the coiuieil. The eyidenoe 
tends to show that the question of opening u > an account in the 
bank was at that time disoussed, and it was decided to ooen eueh 
aoeount and instructions were given to him that all the laoney be- 
longing to the couTicil should be deposited in defendant bank and 
the checks cleared through it, but that whenever the amount on de»» 
posit exceeded $500, the excess should be transferred to the First 
Rational Bank of Chicago; that Richlowski agreed to do this an<1 
said that he would follow the instructions. No other oflicsr of 
the bank apparently had knowledge of these instructions or the 
arrangement made between the officials of the council and Hichlov- 
eki, A notice of a resolution adopted that day (July 27, 1931) 
was sent to defendant bank and is in evidence. It is to the effect 
that at a aeeting of the trustees of the couccil on July 87th a 
resolution was adopted authorizing grand knight Jacob A, -.ueller 
and treasurer Peter 3. Richlowski, whose signatures appeared on the 
document, to draw, sign, endorse and guarantee orders and ciieoks 
on the Logan Square State & Savings Bank, or any other bank, com- 
pany, person or persons, etc., "with the provision that checks 
drawn ©n this account will be payable only to the i'irst liiational 
Bank of Chicago,* 

The account was opened, and all checks thereon were signe4 
"Lafayette Council Uo. 361, K, of C, , Peter 3. Richlowski, Treasurer.* 
The first deposit appears to have been made July 28, 1931, in the 
amount of ^1290,71, The agreement in regard to the transfer of 

amounts in the account exceeding ^500 to the i'irst JNational BarJc 



7i . ' i.e. bf.w>- ao 

• xi- ■'i^ .* lie woitto if[ 



does not appear to have "been complic'l with. Two days l>efor« th« 
bank closod, JacoT& itueller discovered that there was on deposit 
1b the bank |5155, 23, He went to Riohlo-^ski, who was acting as 
oashier of the 'banJi: ;^'< told him to move the money to the First 
fiational Bank of Chicago, The hank then transralttad a check for 
#1000 to the yirst National Bank, and at that time Richlowskl 
stated he had seait another check through for |H500 and promised 
he would send anoth<»r check for the same amount, Whil? the last 
mentioned check was in the orocees of clearinA, the hank closed 
and a receiver was appointed. 

On the morning of June 17, 19 32, before the hank closed, 
Mueller learned that his ieraand for the transmission of the 
money to the ?irst National Bank had not been complied with, ^nd 
that there res?ainea on deposit $275S.93. Thereupon, acting as 
grand knight of the council, he made out a cheek payable to cur- 
rency for the whole aaiount on deoosit and demanded payment. The 
teller refused payu^ent and called in the president oi' the bank 
who directed the teller to give Mueller either the cash or some 
securities. The teller then began to figure the interest on 
certain seouritlee, and while he was doing eo the state auditor 
appear<«d and ordered the teller out of the cage and closed the 
bank. The check for $2752,93 has n^rer been paid by the bank afld 
is now in possession of its receiver, Muellor, hoT^ever, was 
notified by the receiver to conie and get the check. 

Several of the trustees of petitioner council testified 
to the conversation with Richlowskl whlciX preceded the opening 
of the aceount. Their teeti.nony Ib to the effect that they 
gave instructions to him that the excess above $500 should bs 
transferred to the Wrst National Bank and that |800 should Xe 
kept in the defendant bank as a. stationery or cos.pensation 
balsj^co, Rlesel, a traetee of the council, testified that 
whenever an amount was over #600 after deposit had been made. 



lot iotr.j :■ ir.'s^jiti.u nw'-:! af'.i^ xnsd B«fP ,oj>fioi^ 'tO 3CflKli X«£ioi^£% 

jUwrf 9d) i B»1X«« &a» *.aej«^:B|^ fc»a*f't»t it^IXtl^ 

•Kl ft**©!. Ao 9txt r© Juo xeXJ'A^ ori^ h«rt9h'io bsm hf»tsi.»qq0 

•^r,' ,i»v»*^ox^ ,t€>lI'»i;M »t»ri»»©i stfi to tt6i»»^s»*€r al *en ei 
,H»«i> ^K©* »>i^ ti^vX*©*^ »i1if v:cf tfitl;ioa 

aol}.> '.10. i«#» » «6 at^'i*' 3iiifeai(M»-"*«b O'f-iJ' ^^^ 6(H»-J^ 



"Kr, Richlowaki was sutJpoeed to draw a check tJid have the tioney 
transferred down te the I'lrat i>ational Bank cf Chicago." Hiesel 
ftlee aaid that the drtly tiiae ixis attention 'r;as called to the 
fact that there was more than $500 In del'enciarit b^jj-.k wao atout a 
week before the bank closed; that at that time there T«i8 a meet- 
ing of the trueteee at vhich RicirJlowaki was present, und in re- 
Bponae to ciueetions he inforraed the trustees that whilf« he did 
not know the '?xact amount, there was more than |500 in the ac- 
count; that they then told him to make a trauisfer of tho luoney 
and he eald he would do so the 8hk.p day, and he v/ae a^^ain cautioned 
not to keep an afiiount of more than |5(X) in the account of defendant 
"bank* 

By stipulation of the parlies it appears that at the close 
of business on June 17, 1&32, the audit of the bank winder the 
eoliutin marked "Resoureee" showed the folloTinti itemt; 

"CaBh on hand #2,861.06 

Cash items 381.19 

Exchange for clearings 1,375,19 * 

tliat its credit balances with other tariks were as follows; 

"Caiase National JBank of ivew York... 2,189,07 
Xhe i'irst National JBank of Chicago 1,157,82 
Continental Illii.ois Sank and 

Trust L>oxiipany of Gnicago 26,512,43," 

In loerxalf of respondent, Mr. Sehultx testified tnat he had 
'been a general man at the bank before it closed and was a bookkeeper 
for the receiver, lie identified exJriibits lA, LB, IC and ID as ths 
ooHouereial bookkeeper's ledger sheets of the closed bank, showing 
the account of petitioner. These records siiow an accomat kept in 
the usual way and that the money was taken out through cnecks drawn 
as provided for in the writtsn authorization of July 27, 19 31, 

These are subs tsuiti ally the facts concerning whioh tners 
does not seefli to be any oontroversy. Petitioner argxies that the 
testimony conclusively shows that the barik agreed to accept tns 
deposits of the council for a specified purpose, namely, to 






, , > **«ai«B<!r to 



61, 



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aj-iw ««si-i^i«!iii' ikbii%9f »^l iml& 



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LliiilUOt) 



rec»lTe, cash and oolleot olaecke d«poalted with It by txxe eouncil 
suid nheu the moaay received and collected w»8 in exoesa ol' <>500, to 
immediately tranaler the oxoesaato the ^'irat l.ationauL BarJc, and that 
the legal efl"ect ol" thia a&reoment was to ixupreas the fund* in the 
bank with a trust in i'avor ol' the oounoil, Petitioner oites 
Drovers' Ij at ional Bank v^ O'ilare . 119 111. 646; ^^erican '^x. x^ank t . 
Mining Co . . 165 111. 103; Peoole v. Lates . 351 111, 439, a/Ad People 
Y. Peoples Bank 3c Iruat Coj^. . 353 111. 47y , all oi' which are to the 
effect tiiat ^fhen a deposit oi' ai special nature is xuade in a bank 
under such oireumstanoes as to make the bank the agent or trustee 
of the depositor to earrj/ out a particular purpose with the money, 
such fund thereby is constituted a trust fund and so long as it 
oan be traced Xiiay be recovered in case tiie agexicy Ib not carried 
out according to instructions, Thus in People y, Peoples £aj:ik A 
Iru8tjCo_, , 353 ill, 47^;, the court stated in effect tuat where • 
payee of a cheek placed it with a local bank for collection and 
the bank mailed it directly ^o the drawee bank with directions to 
reiuit, and the drawee bank, instead of remitting the money, sent to 
the local bank its draft on another bank (where, howeter, it had 
sufficient funds) but the drawee bank failed before the local bank 
was able to collect payment on the draft, the payee on the cneck was 
entitled to a preference over other creditors oi tae closed bank, 
upon the theory that the relationship created by the transaetion 
was that of agency and the smount of the check should be regarded 
as impressed with a trust. 3o in People v. Bates . 351 111. 439, 
where it appeared that a bank had collected proceeds of a note in 
the SUA of #4725 and ttJie uioney was left in the bank for tne par- 
pose, as stated in a receiot, "to be invested in morti^ase leans,* 
it was held tnat the relationship created between the bank and 
the intervening petitioner was one ol' afcCacy ratner than deotor and 
oreditor, and that petitioner was entitled to recover the amount 

I 



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oi* it aB afeainst the aasete whioh ttie evidence showed laxd been 
augmented to tke amount oi' tills trust property, 

The undoubted general rule is that tlae deposit of i^oney in 
a bank creates the relationship of creditor and dettor between the 
depositor and the bank, and the undisputed fu<.^^ts in this redord do 
not bring this case %ithin the exception illustrated by the cases 
cited in behalf of petitioner, iilchlowski was at the tirae of this 
transaction the treasurer of petitioner, and the conference with 
reference to sending the funds in excecE of $500 to the i'irst 
fiational Bank was betwean aim and the trustees of the ccuncil. 
The STideuce does not disclose and would not Justify the inference 
of any agreement between the bank and the council to that *:l"l'ect. 
The only agreei'ient so far as tiie evidence disclosed was that lu*- 
plled by law that the bank would pay cliecks upon the accomit v.-hioii 
were duly aatiiorized. That was the only resolution of whicn the 
bank was informed up to a few days before It was closed. The proof 
shows merely the ©pening of a regular checking deposit account by 
the oouneil acting through its officers. The bank did not hare any 
right to Bak« withdrawals froaa the bwaak nor transfer the funds ex- 
cept as checks were drawn by the duly authorized officers of the 
council. The account was handled as all other coicmercial accounts, 
and there was no special method provided for in connection with it. 
The funds deposited in the account were not kept sepurately from 
other funds, and there is notxiing in the evidence which would over- 
come the preBua.ption that by opening tJiiE account the relationship 
of debtor and creditor was established between the bank and tne 
coijAcil. That is the presumption aricing out of the traiisacticn in 
the absence of a specific agreenient to the contrary, &its v. 
gpreiT an . 360 111, 461. We hold therefore that th#se funds were not 
impressed witn a trust by reason of any special contractual rela- 
tionship. 












|>«8-9i 



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.j&#i;s^xj .;*ajU j&i3«i <ii.i.i.^ ii!&d9tt@d «£W ai£ifi^ X^noi^jtiiii 
/^4Si«4 '««!t «oi'L BlrnvMihAtlv MkisiO. joi tixglt 

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in iae next place, it io oonteiided x'or petitioiicr txiat a 

trust relationaxiip was erected Isy the pressiitiaerit ol' a caeeic I'or 

ths luularioe o:^ tJae acooiait aiid deiuaati lor p&^iueat thereof on ths 

morning tiaat the auditor o! public accuur^ts closed th.e "bank, and 

there are cases viiich eeeui to so aold. ouch is the rule stuted 

Obiter in the opinion in People 7» UhicaKO iituik oi" Uoiiimerce . 275 

111. App, 68, in irhien, hswerer, t'5o oi the Judj^es declined to 

eoneur* The same court, wh'sn the prsciee question was presented 

to it, in the prior case or fi^ople v. Bryn jLawr .it^^te Jaatik f 273 

111. App. 415, reyiewed tue authorities <iaj.d held tuat the luere 

presentation ol' a oneck «rith deuiand lor its payment did not create 

a trust ex aaleiiclo . the Justice who wrote the opinion in x^eop i f 

V. Qnica^Q Bank ol woiataeroe^ dissenting. In the yet later case ol 

People v. li'irst Italiitfi ^tafce Bairik . 2^1 111. App, 1, the court 

said: 

"We are oi t/ie opinion tnat neitner by the presentation of 
a check in person by the depositor, nor by a deiuarid made through 
the presentation oi a drait ty & dra,^?ee oaiik upon a deposit£.ry 
bSJik and refusal to pay, ie the amoimt segregated from the general 
fund or the deposited woney ^a.de a trust fund separate and apart 
from the general assets.* 

One of "the Justices again dissented. 

In People Y^ 0*Connell . 282 111, App. 155, in an opinion 
filM ifovember 5, 1935, the second division of this court, reviewing 
the authorities, held that the drawing of a check and presentment 
of it with a refusal of the bank to ps^, did not amount to a segre- 
gation of petitioner's deposit, nor amount to an augjaentation of tke 
assets of the bank, and that the relation between petitioner and tbe 
bank continued to be that of debtor and creditor. The statement la 
the opinion in People v. CSfaicago jiank of CoBM Berog, 275 111. App, 68, 
seems to have been to some extent based upon the opinion of the 
Supreme court in People v. Denn;iardt . 354 111. 450. That case con- 
strued section 13 of the act of July 8, 1931, (111. State Bar iitats. , 
chap. 16a, par. 37) which has since been held unconstitational 






!9n09 



9'; 



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99 « 0* ^ntfoasf^ 



i^iixi'> 



1* 






and void by the Suprwne court. People v. Union Eank & Traipt- 9^-, 
S62 111. 164. We therefor* hold, on the authox'lty of these cases, 
that no truat relationship was created by the presentation of the 
oheolc as described in the eriflence. 

Moreover, even if we assume tiiat either as a result of the 
original contract or by reason of thft transactions including the 
drawing of the check which iEamedi at ely preceded the closing of the 
■bank, sueh trust fund was created, the evidence here is not suf- 
ficient to disclose such tracing and indentif ication of the fund. 
as Would entitle petitioner to a preference. Petitioner relies 
0" yeQp ; ^e ▼. Bates . 351 111, 439, but that rule has been greatly 
modified In the latex cases of Peoyle v. State Boxik of Maywooc| f 
564 111. 619, f^nd Col egrovc v. Gaupp. 357 111. 499, which cites 
PftQple V,. .St ate B ank^„ef May wqo d^,, The opinion in the case of 
People v^ State Bank pf Maywoo<a says: 

"Since the right to reclaim a trust fund is founded on the 
right of property, and not on the ground of compensjation for its 
loss, the beneficiary loust be able to point out the particular 
property into which the fund has been converted* WVien he is 
unable to do so, the trust fails and his claim becomes one for 
oompensation only and stands on the saaie basis as the claims of 
general creditors," 

Sueh, also, has been the view of this court as expressed in the 

eoiaparatively recent cases of People v. ii^irst State Bank . 274 111. 

App, 46, and People v . Citizens State Baxik, 274 111. App. 444, 

which It is believed are in harmony with the views of the Supreme 

court and the weight of autifierity. Begert on Trusts and Trustees, 

vol, 4, sees. 921-930. 

J'er these reasons the order is aff lined. 

AFFIRMED. 

UeSarely, P. J., and O'Connor, J., concur. 



a/'. 



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tm ftmr satigisax. bakx of 

Pitt tri tiff (AT>s>«llfifit), j /^|W€aI. J1l«lri»)iICIFAL 0091IT 

▼•. J Of CJHICASO. 







28 5l„A. 6 82^ 



m, jyiiTicn o*e«ai^M a»bXinniKB Tin oPiHioji oy liiE vv,-a.vi. 

Qb 1u«« ]>, 1.933, pliilntiff ^brought tm »eilon on a yrtwlaiory 
li#t« r»r ^^«^^'. 4«.t«d Julif tt, l&^se, 4M« 90 <l«y» after d«tt, iia4« 
l»7 4l«f«Bd«nt i^oiffB U, l^biu, tuff pii^^ut Al* it ^»rtir^t««4 l»j tla« 

iSu« »» tl^fi B«t« w»« lit ,$5ll,»ft. i}«f«f3d«nt9 «^a«»ltt.<»d th« balan** 
dtt« on ^# i3M»t« &» el»li&«4« but iil(N9i ft «ouiit«relaiM in whloh thf 
ftir«rr«<i ih»t ^laiotlfl' hj|« Jitt«n|^%«id t» ««ll tk« vtoiUc (il«ig«A ma 
^^Ilott^fftJl t* tii« 8«t« l>ir tt lEVtetly lnsiidft<$uat* prla«. mX that if 
ill* stock had b««» »old «it » t^ir pri&tt th«r« wottlift r«&ai« a o«iiBi4<- 
•rnl&l* «Rftunt <!!u« ^•I'tmiant* »ft«>r tn« f«^«nt of th« not*, Th«r« 
VAC a Jury trial. 0<iir«»4ikfit A« C. tobin'ft »«!»« was «n Motion of 
Iplalntilf «tri«Je«ri fwim %h« «ount«roXo.ln. Xi)«r« «a* a Tsrdiot and 
4udtf»«ri>i in f^var of dafoindam ItoiOB ii&. Tobin on has* oo-unteralais 
far $14, 704.04, ttud pliikiAtiff ai»^«aXa. 

Vm roiforA 4i8«I<^B«* tkai 9l«intifl «aa a n^iiaaal bank 
•aaduatlng itt li*i»kiag W»i»«a« at Hei»i»kM», JU. J,; t^tat tho KXavator 
dit^pliat 0Qai|>ari7, Iise., vaa a Iburm Jarsay oorporatioa oondueting a 
niaiiaf««iurln£ ^ia»t in Mabokan* Safandaot ^•1«b t^, labin and kar 
httftbaad rati dad ia GSkieafipo. tiho awn«d S50 aliaraa of tk* far ^almo 
•f 11^ par ahara of Uia |>Taf«rjr*d vtaek of tka KXav»tar tfuppliaa 
Co., af «kiek tt&9.9Paiy tear kuat>and va« % ^Ireetor, Ha waa prcoidant 
of tko &««iaral yir<tFroof ing Co. of lilirtaio, a aubsldlary of tha 
Owawral Firaproof iatg Go, of youBgotuan, Ohio, and had baan aoxmaatad 
with tko Chioago mmpu&y for 3d /aara axeopt for fiva yaaro aiica ko 



ftXttt 









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':^t l>ll*tfMlf 






r««14«4l At Youuigtio^n mi^ was •«!•• AiiniMccr •!' th« oM^miy. a« 
lB««aB« « '1ir««t«r •! tki* Sl^rmter ;^ppli«» Uo. in l»»«, a4i4 r«p- 
r#t«t}t«4 Mr9. t<»feln*« l&t«r««t in t^«t Ma^Miiy* iU wmi «l«et«4 tk« 
3L«i«t U«* *• a «li«et«r of tlk« a«t»^ll«« «(»fi4j»aay lo Oaioto^r, 1932, 
t«r » r**r, «U34 ^e t««ti,il*4 tii*i ix* h«4 yuatjf Ifitisat* lcuowl«Jc« tf 
ill* Mss^Miy** bu«la«s» ttteau»« of nia w^rlc wltb th« oMkjor ttock- 
holdftrt of ta« OMqiaay in •*«urlR^ * h«v &«»4 i'or th« Mi^yaay; uuit 
l»«$lct)lB« J«nu*r3r l« 19^, h* tpmi » grmmt fart ef thx*« M>iithB 
«a Ih* VttsiEi««» ttf the T^mptmy, tm4 wubammumxlf Mtt«&d«4 vnrl^ua 

O«tob«r 1, X93«., «f<iii>l» M«1«B «.. JablA ti«rroii«4 ^2S,C00 
froM fiXaiK^til'l' banli, g«v« ki«r 9elXsit«rftJL proulKsory not* lor that 
UMttAt du« r»ur m&ti%]ii9 sS%0r 4»t«, «ita lnt«r«aw m% ^% par annuK, 
•Ji4 pl#4g«4 h«r ftOO tkar«>« ol' atoaji; la tlba StappllKS Ua. aa oali^ktaral, 
JPayAotJtt aiT tha uat* waa ^majrtuit«Mi4 by Aajr l4usL<au4, t.. C. Yaclu, tiia 
atlEiar 4,iitm'>^m»x%, %a aeia vaa r<»:aw«ii froM tifi«« to tl4B« at tJ&a ra- 
tttaat af 4al>ndafita. tti.n a.aat ranawai aot.a« viiicii Is tua oaa la 
»\iit, vaa datatf July as, I93S, dina Oato^ar a^ . 1»38, but it vaa aat 
raatlvad ^y 4ef ei danta tiatU Aui^ua> 9, 19332. ifra« tiaa tiaa ma 
flrat aata aa&a 4tta ta datttte«r, 19S:i, plaiUktllT vaa aJuaaat oonlla* 
italljr pr«>aalag far 9«yn«Bt an4 daftridartta aaislni^ far tiaa. Daf aB4* 
mat* «a(la {»ajf^arita a«;r ra^atlae 49600, togattear vilb lnt«r«at aa tha 
aata. Plaintiff rafuaa^ ta irroAt «ny othar ranewaia, aad bftar 
netiae Uia ataak waa aoli ta pl^intirf at auatlaa by plalatlff *a 
attomaya la Ha1»«ka8 at IS a i^'^rm ot fa,75w. ^.radlt waa i^ivan aa 
tha nata far tfela aaauat aadi tha fella»lag Jwnit tba laataat ault 
vai %r(Hi^t. 

la ita atata»aat af elala ru«d Juna 1, 19.^, ol«l«ilff 
aaad fmt^ ttta r*tM af tha aata, av t21,5wi>, l*aa Uia ^2,790, 
laavlan a 1>alauoa af $19«899«I9, altlt Interr^at tnaraaa at •US par 
aaaiUB froa ^9mAm9 11, 19 3S, ttea 4ata tJsk* ataax aaa aall. 



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f »i»ijipn 



July Sti, !»:», 4«r«»4wU» i'U«4 Mt *»rri<laYit of i»«rlt0 m4 
••t'Ofr* in wkieJri iJ»«y iUb6ltt«4 tb«r« wat ft l»«att»«« dut on th* net* 
• f $lf ,%»&•%&« (k* 9lmimm4, 1»ut ftTttrr«4 that if tk* fttock haA b««B 
Iftlriy »oX4 1»y DlaUtlff tii«r« WQVklA i»« a )>ttl«aie« 4u« AmttadmntB 
»ft«r th« fftjfWffRt •! tbt MMunt «w«4 |»lftintirf« vf #6494.75. 

l^fmi^mn%M furiber ftTerr«N3 ttutt niAgotiatUat «tr« oftnrl«4 •• 
1»«t«««n tU« purtlfft «i»J& r«f«^ranett to the iftftHtHi: el' th« lottn loid th« 
«x«9iiti«i» (»f tti« fi^MVal &!»%«• «a4 9*jW«Ht«i ii^«y«eB; Um% th« last 
B»t« «•«• iSui« @«t«l»Ar S^w, 1.93^, i*^<H» th« i»artiR« hft4 furi>4«r n«<»- 
tlatil«»iiK le^rjting t«i«*ttr4 « I'urii^dJr ttxXmizi^u &i %i»% of j9ayn«nt; tbftt 
•e Mi&ytmih^t d« iiji'^, ilL*f*u4mti%» «ff«jr«idi i& pay $3!0i< «n tii* prlii«ifftl 
««t4 |3S^*&0 iat#r««t in. «#»#i4»r^tiofi of m. turthviT (txtflmsion of 90 
4nysj tliftt vrX«istiff «fi>r«4 to i^rtint « r<ui«»«a for ck.* <!&>•, trhitb 
i«f«n4»!'?.t« di«i o«t iiM3ie«ft, wrid <m Ji^ir4Rilr«s* %2, xs;3t, d«f*i.<Sau<tt r«- 
««ivi>4 % X#tt9r fjemt s»l»I.Atlff *« «itt(»fnft7il at liobejtou Infoxttlag A«» 
l'<M8i4«£4t» th«y MA4 tbe «iot« for «aa.l»«ti«MA; t>uit th«ro v«« oonroo- 
l»an^«ne« h^%m9fm th# i»»rtl'!»«^ mi^ fi*i'mt^mt%» wor* ftdTl«td t>mt tiao 
•took «#ul<i ')»« »«ii4 ftt 10 A* A. i>o««ml&i«ir 13, 1^32, anlsBe ibo aoto 
«»» pftid lis full; th«t ^tff^i^wrii^ «i4vift«4 pXairjtirf thoy woro unaMo 
to ftvy tii« »dt« at tj%«kt tiJftt Hmt offitrod to 9«y net l«08 tboa |7& a 
»<mth «B tho |?rlnttifftX 1b a^^itioxt t& ii%t«jr«ot; tiiftt aftarvari 
^Iftlntlff parp'»t%m4, t& iMctm »eld th« »t(}9Ji on Qft««sb«r 13, 19 3S, at 
$$ » ahtur«; yaiAt tA«jr« «iui « totta of $S66 oharoo of profs rro4 otook 
of tfoo ^i«vator %i|»i»ll*>o ooi^pasiy of ti»o |»iir vaXu« of Hot' o atiajro; 
tiMit tho otoolt "^wao elosoly ^eld an^ «»• »ot li>t«d on ony oxcKouso; 
**»««t««t It *»»• »ot trad#4 iJ aa4 »o roftdy iimu*o%» for it "oxlotod 
«t tA* tiwo of ssild »»lo or ftt any ti»o 6«2oro or slnoo;* thot th« 
stooJi trfto p>rof «rrod %» fc» aisaoto on ll«iuidiiti©» »• »oli »o to IMo 
•ftWJingo SW4 that tho totol ftoooto woro ^l.Too.otO in oxoooo of ih« 
total li>asili tl«o: that th« ^eok Tala« of tho otook oxooodod $m^ 
a oiiaro; tHat tho Siii»clieo ootti^aaj h^d actual oaah on haad avAllohlo 

i 



It« fcvl'STi*:: 









1=^ : * 4 ' 



' .«(^ I'illlil 



for %h0 )?r«f«rr«<l vtoeit in ffxtt*** mf $5tt « Bk»r«; thmt it «»• la* 
f«»«ilBl« t« ••tii&at« th« !S»«rk«t ▼•!»« «} th« stook At the tia« ^f 
tuff niilt tr »i «i»3r 9tli»r tln«» b^t tbftt th« ttttok w»t worth in 

•xetas ©f #ftO tt tfeai-ej tfe»» j»rl«»r %o tla« •&!• pi^lntifjr ptti»ii«h«4 
no notlee ol' tit* tttX* aAd notiri«41 n» «h« •>:««pi 4«l'«n4«nt« tf 1%% 
LxktmtUn f •«Xl ih^t a teaks that tk« •«!<» was }i«ld iu prlT«t« mi4 
M4 la hy «tt« Af fii»&niirf *t «i«ploy««a: mat thia ««• purely ar^i* 

ttmxy 9m.^ ib.« p7i«« «a« !••• i^aja oxi4N.t«nth ei* ia« aatuaX Taiu« •f 
th« ttetlt; that 4mtmt4m*i%9 ««r« aot tv^vao ti«a« to find a traynr. 
AAA <i«f«'4a?'t« pifa;y#4 tjsuht ti^tt^ laiav* Ja-I^^wet agaiast plaintiff 

Jti«V«ali«fir :I3, i933, 49fm'iaMt» fll^d an *af3*idaTii. •f 
iH«ritft»* ali»»ltt|jEig that thm ma»vim% {iXaiistii'S' oltti»«4 «ait du« on Ui« 
nata; AanlsMl thtr* «aa way MSA MM. »*i* ®' ^J^^® stock ^4 d«tii«4 
thara va» anything dii# plaintiff. 

^ Mayah f, 1.9S4» plaintifr* ky l«air« ol^ «ettrt» filM an 
aA«n!|«4 etiittci^imt af elaiii, !!^i4 it wa« •r4«r«(l that 4afmdant«* 
affidaTlt af £s«rit» ^%mm4 %& tha an«»^«d •tat«n«at, l«av« mm» glvM 
««f«ri^aat» to fila a s^t-aff vn^ to piaintirf to lilo am aTfidavit 
• f narlto %M*W0%9, m tiLO »oai« dM^ vyialetitff fil^d thlo «K«ada4 
atatOMARt of eiaia in vhioh it eiiikitsi«4 tho faao oi" tho noto, #21,100, 
littt aathis^, vao oaid altaat tha eal# of iho cmlif^t^ral, (m Ayril 6, 
2.934, dof«n<4anto fil«4 th«4r «ott«it<ir^aiJi i& vuaion thay «llo,^o4 thoro 
vaa duo th«tt faroja plaintiff ovor urAd aNiira any ous duo plaintiff 
fron thOHi, *tho o^en of $3d,$90 kjr roaooa of thoir c unt«rolaia 
agaittot plaiatlff ii^ tho ou» of $49, 990. i^, trfaien io b«oo« upon tho 
fallowins allogatioao,* X^on follows n stit^auetit of tho aaklag 
•f the orljgiaal Ia«H3 «iJad noto, tho r«aowalo, tho plodding of tho 
•took ao oollatftral, th« roduotion of tho prinoipal by Vkjaonto, 
loaving |21,SC>c;i tho faoe of tho last aot*, tii« nogetiotioao k«two«i 
ikit parties in Ootnbor, X95S, raid ouboonuently dofttidantt* off or to 



»ttAj<v;>«t .it linr-jta jv»^r^ A^M*? «.-. A/if *|0^ 

•' -"-^ «■ 






JU»dJ« 



pmj 1200 •» th« prla«i]iftl ard l»t«r«ftt of i5£2,&c iii coi.si.j*r«tl«a 
#f in* rvncvaX of 90 day* froM &«;iob«r 2v , 1938; tiunt plaintiff 
ft0r««<l t* •Ki«ari tUM «•%• for 60 dmy but tiaia w«» uot aeooptablo 
to th« 4of«n'1i^t«; thot th« pajrtioo had eorroopon4oaoo oboitt thm 
oal# of tho itoidi ojb Xkcoonilior 13tM: tiiat dolonioiita off«rod to prnj 
not lo«« than |7ft o aontii efi tb« prlcolf*! and tho Istoroot; that 
•B l)«o«Kboir i:^, 1932, plAlDtlff hnlA m priyfa,tn solo ot tJ&o off loo 
of Ito ottomoys 1« Hoboi^on, f^«ro tho SftC aharoo of atoolt voro 
l»ttr^or%«*d to }iftv« bo«n sold I'er fS » onakro to one of plftl&tiff *o 
oaqiloyoeo, thA ]»rde«9ds o)t aueU calo h«>l&£ applied b^ plttliitlff oa 
tho noto, l«aTln({ a b.»lofieo of |19,2$&.SS. 'mo ot.>aut«rolaia tiioa 
o#t u? tho aaoots and liitbllltioo of tHo Jtl«v*tor ^ppliao Uo, ; 
tiiat tiio otook had noror ^an Ilatod ojrt aa^ oaca^uuiKO, «aa oloaoljr 
hold by a ooi&i^ajratiTol/ f««r ladlTi^ufilt, «^d £iad aX«ajra booa la* 
fro^uentXj tradod lis; Uiut It «aa Itapoaalblo to dotorKtao Ita 
ojcaet ffiorkot valaa Oir. tita ;at« oi t^o aala, or at muy ouxor da to; 
that 0£ tho day oi tho aalo it vaa fairly worth #58 a aharo; that 
for oOToraX yoaro pli^lstlff vao o&tirely faAliia^r dth tho flaajaoiaX 
ooatfltlen of tho SlOTator SitppXiea Co. by Tlrtuo of tho baiahiac of 
that oeMfan/ with »l*tiitlff b»«Jt; ti^i»t prior to the aala dofvdanto 
had obtain Ad aororal loaca fra« pl&intlff on ta* profarrad aad 
oo3tn>0n atoc^k; th«t pl»ictlff kfiow tho Ritfioo and ad<lr«asaa of tho 
^artioo who h«ld tho ecwtrolllng otook in the coapany; that prior 
to tho oalo plaintiff publl«h«l no notloo that tha aalo would tak9 
pluoo on ^oOKbor 13th, aad dof#ft4anto woro ftliren no tlao to fiad a 
bayor; that plaintiff know #ft a ahare waa laaa thau oaa^tar.th of 
tho aotual walao of tha otook and toiow that the prloo w»o far looo 
than othor liit«»reoto4 partioa woali UaTO paid had thoy knowa of tho 
oalo: that it waa plaintiff ♦© dut^ to doal fairly and honaotly with 
4«fa&daRto md obtain a fair prioo for tho atoox, but that it 
fraodul«<:itly and eoliuaivoly aold tho otooA to ono of ito Okiployowo 






' ■ f /»1K«v ■ • 

' ■ -^^^f hints. »*^r ««i^ir«<jr 

VjS% MV fl«i 



for |9 « ihtr* *ltb«nt a<fv«jptiii#i&»»nt or r.otiet; tbAt this •*!• qoa. 
•tlttit«4 »•, eoKfflrrtJlon ot* t.h« i»tc>«le WiA plaintiff frftu<$ul«j}%ly 

tt<»ti^?ht to <!ftfrftuA <f«f«krid«ki3its> of tb» etotaUc. «lt)t«ttt «r«viitin(^ tkea 
vltli th« t^rwc^jwda »J A boKf f Jt,d , *? oaXe of the stooit.; that l»y r«asMi 
9t »tte*t e<3«v«r«ioji defen.tiw^tB w«r<i »afcltil»»d to reeovtr froa plaln- 
ttff AOtu^l ^larsafcstii of 137,1 uo "^iWa int«rRSt at 8.?^ frwa D*«*ab4r 
13, 1938, «n4 til« TviTthmr »im <&t fl3,v'aO ftt |wnitiTt 4l«tti)i^t« tj 
r«Afioii of til* f r«Aidiiil #£1^1 aotft os pl^ilntirf; im^ <i«f«G<*aAt« pr«^«4 
tli«i Jui^«nt iMn «3at#r«(t in tn«ir fevor ^mi. against pXaifitifl f«r 

M.»y S, 11?M, fialJBtlfj: fiie« a, r<»pi3f to ti** «eui tMj-olai« 
is irnt«i& it «le> i«4 that 4mf^*iAatr.t ^, C. fel^lia had auijr istertst ia 
tlbt« «to«k« b\3t ttY«rrff4 t»At li i*r«« tiie4^«4 Iby <!«feiv<lant H«1«r j£. 
7ol>ta. n«iatiff turtiitfT lmU«^ l^at t^« listerttt aaA l»««a 
pi^miotljf pski$ toy dl«f«7u1[a]Sit»{ 4«'if.4«?(^ ta%t the •ai«' of t)i« «t»ftk wmi 
»t A frlTatt salt; d«ni«*4 th%t fan &.«a«t« iui<l liiftbllitltts •f Ui« 
Xl«iriit«T ^ppllft* C<»* ««.r<^ i»» %lX«ii(%<$ in t^* a«»ttiiter«lai« mh'I de- 
nied t^^t ihi« ^r«f«rjf«il iitadi^ -«-»« «(»rt)i l&O t« |35 « e^'iar*. It 
ftirtner 4«fil#a that itXa-intlfr was fti^tirttXy fftalllar with Ui« ri- 
ttfUBeiai.l''(;o«94itien «f the Sufpliev 6&&,§nay, ajad ft'v«rx'«4 tUat it &mA 
»aMA« Imt OB* l*iw ta t&« SupfUl^ft oo^^ftAn^ ia IV^Sj ttnat th* steeli 
i» <|tt**tt»n w«a t^ld |!>ur8U3tnit to « r^o^«r cdaf^rred ic tii« ooix%t*r*l 
B*t« wiileh proviile^l that in ess* of ti0r«iult tli* steek aigut to* vvld 
ftt ptttoiltt or $»iri,T:4^t«ii i^&Xst witl)*ut notle* or ndvertl »•««&%, «a4 thmt 
plDbintiff lei^^^it ^<»**a« %&e parc^a*«r «>t sueh sale; th»t plaintiff 
aetlflei^ d«f«irHltMstf ou j^oT(R&to«r 2&tli that th« isale «ouI.t tak* pla** 
SNl*tt)%to<ir 13tH, tin<i th9 tis« »nA filta^** '!?*r« i^iTea; tnat th* plaintiff 
ai*Q a4v*rtl»*4 tit* *al« wowld to* «t ptttollc auetioa at a 8pe*ifi*4 
tlja* aadl ?tl»** ac4 taut t^e •»!« «a* «* ht'ld. 

Plailstiff furt]&«r a«iil«4 tUmt It kB*i» oi ai^y vn* wiie wo«l« 
for 
toi<J »or«/th* «toak tH«o tU<l plaintiff; l«nlM tli* eoiiT*r«l«i of tto* 






a -i'!* ¥ fy^M .1^3 *,■■■??. t r> 






■■.jjirfjfc astatic •' •' ■' ' ■%.UiS''fX3tq 






X* 



•toek and d*rii«4 «1X chari^fts ftS' adLsootKtuat^ eAd plaintiff further 
r«9ll#4 in th* •lt«ni%tlT«, ttiat li' tA« «»!• should b« adjudticd 
lavftii*! fftr Mt/ r«*sa«i, pl«itttiir «till nuiA %a» wvook o«rtlfle»t« 
in lt» (>«8s»«ai«a «ind Control «tfid viui ftt all &!«•• abl* to r«turB 
th# »%ntHt ttalApAlrM t« <l»l'«»'ii»»is» but that 4«fcr«iftnta, »ft«r 
i»«ti0« of th« IntARdcd tnl* iwd ^t't^r the «»!•, nirv«r 9fs'«r«4 t* 
pmy t^* cidt« •r •t«.#l«i«« 4i*u-:amA(itA tia« r«tuxn of tii« steoiu 

i!3tne« !}*f •!% 'timts !ft4«»itt«4 t>iat tli<p a^/^uAt oIsImM Iqr 
;p|«intlff wft« <!tt* «in tli« n«t«, plaintiff «d th« trlAl «r th* «»•• 
off«r«4 thii not*, eMR9>ttt«4 tlio «y»ount ^ti«, vhloti wa» n*t dlspttt«4, 
«B(1 r«>8t#(l« fhsrtupon it wa,« angroed b^ eoyunfttl %ixa% 4«rftridAi2t« 
«sttl4 %<? glr«n tJne oepvrtuFiity to op«n ^nd cl(»30 tb« «»•«, 

flMi &«ai9ta«it •aahl*!' @i' plaintiff ^anJc, eali«4 by tf«f«&4* 
Mit«, t«»tlfiiMl ht waul «m9l07«d by piftintDf baak; that It itlll 
k«4 a corporate «>;l«t«n«!a; tk^t le 0«G«M^<l>«r, 19S4, tiia flrtt Jtatl«Mal 
Baak ef 4t«ra«y City i»ttreixas««l e«rtal{^ af t&a ate«t8 of piaiutlff 
hmnk 9m& a«f!us*a4 c«rtaifi ftf Its liabilities; that prior to tnat 
tia«, J^aimnry, 1935, ti)«r« «raa a r#orfeianlsatieit of tho plaintiff 
1»an)c; An4 that ti»« a«90t» ««n««rnsdl in tao ifista^it eult still bo* 
long»<3 t« the plaintiff bank. This "ifltnoos was Int^r eallod by 
p^Xaintiff and taotin«d that too attoiid^di tiae aalft of lh« eoliatoral 
on ^••mAmT 13^, at 10 a. ». , %t t&o off lea of ttia b«nit*t attomoyot 
that »T, anltJt, pr«»i4ai»t of tho KloYator ^p.al&«<o Co., aaso to 
tfes platntiff bask or that >mTttlBg, m&A wont with tlia vltaooo aa4 
tli« loan olfii^ of tha ^mk to tha attoznoy*a offioa; that tko at* 
tornay aRrtaune«4 ha wo«ld aoll ti^a »B0 sharoa of atook, tho oortlfl* 
oata of vhlah vaa ro4uea4: that tho wltnaaa bl4 #1 a ahara: tkat 
tkaraapOB Mr. ^ith bl4 IS a ahara, m.6 wltnaaa iu turn bi4 Ift a 
aharaj ana titara 1i»al»« no furtJ^^ar bids, t^-ia atocic vaa d«almra4 
«al4 ta wltnaaa far tha bank; that a aaahlar'a ahaaJi far #si?5w/ oa 
plaintiff brink waa haadad OTar f9T tha ateok oartifioata. The avi- 






;.iB9 MM*-- 



tsn 






i««n«« further »Mm9 tlittt IM« wmm nothliag, More ot icao Hum m 
1ioo)dt<*^«plB«: ■)Oec»tiBt with Ui« piaiAiifl* bauJc; timt aft«r th» saI* 
i>V. ftailth w«lk«4 l»%eJi to th* Viot^ with th« vritmttww; %kt,X pri«y t« 
thftt tlM« iir. anltte li«4 called at tJli« bank frof^ \imm te tlm« And 
tKftt » f«v igonttia ^rlttr to tli« «»le ii« ft«k«4 iiftitb Uov ib« i;i«* 
T*t«r £Su9^1i«s 9<».*fl l&a«lii«»{) v»« goiac >Ma4 anltii r«oli«d tiiftt "it 
VMi fttlll not oporfttiBg ijr> tJeio lil&ek,* 

3i»lth, «a^llo4a hj 4«fof3i»Kta, t«»tifi«!d tA*t lt« l«ft th« 
•taploy 01 tlt« lXoY!itor ^pBll«« Go. About ^lOittAr^' 31, 1933, an4 
«t tli« time of tiio trisl «»• Yld««pr«i»idout of a Aoir York oorpor»> 
tl«»; thAt li# w«« «K|ii.o]ro<t as g«n«ral auoiii^Br of tlio Supplies oo&fiaof 
alKlut Ayrtl, 19dC;, «u9d la Jloptonber of i^«t year ^ao «^i.eet«d pr^sl- 
dimt, w^fciioii offioo Ho holii uAtil ^'^ l«»ft ifi 1953; Ui^at b* vao proMBt 
at th« oalo of tk.o oollatoral <%i th« atiom^oy** offieo ta ;;»oosikor 
Idtlit that ho wont to the %mk th«(t jcoorttiag atii tol4 Itr. it»atobol4or, 
tko aoolotant OAoJ^tor, that h# ixao i^^^olag ct -r to t^o e«lo aorooo 
tteo otroot; that aft«>r th«|r i,:ot to th««> offloo tlio lawyor otatoi ho 
vat s«iRg to 9«11 tho S50 ahikreo of ato^^k to aatlafy tlio aoto of 
Mr. 0ii4 Mrs. Sobin mt%4 «xplAlno4t t^« torm.8 of tho »alo sa4 askod 
for M.$mi thm% Jiat«t)aoI4«r bl4 $% a eharo, txie vltaooo thon bl4 IS 
a oiiarot mi<I £mt«li«lilor taoa 1»i4 $ft a aharo; a&d. tiioro boia^ ao 
further bi4o tho atock was sold to Bats^olior; t^at mft«r tiio salo 
vitBooo valko4 aeiroos t^o «tr«ot with At, Sateioldor, vho a«So4 
wltaots wliat &« a«ant by "^eable-erosoing him*; toat vltaoso ro* 
l»lio4 it «aa not a ea^«« of ^3uli}X«*orossia£, bat ii« was aao«k»4 to 
••« stook of raofi valuo belaid of^li for so lltU«;tiiat about two 
wooka later h« was at tk« bttoik «ad «oico4 li«teJaol4or wfeiat ho vottl4 
sail tha Btoek i'or, «m<i Bateiiol'lor ro»ll«4« *l^or tho aaoant of tho 
aatt.* The iritBaBe tHon gavo tootlr<«n]r o^noornlag tha aovoto aB4 
liabilities of tha Xl^vntor :Sttp«»ll«o Co., and a groat auuty flaHaolal 
atatOfi«ata loRao4 by that company aro In tho r«e«r4. kat «o think 



»f 



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a 1 ■■■ <!►:•) 






u 

*&«tkey 9«ri*4 ol* tin* 'toy «^i6» ti%«y •x?i»ttt«4 to get lJa« m»n«y to 
pny the aot«, W% tM» alno f«ll iArou£h« 

til* corr««von£«na« furi^iiftr »h««a th»t »eM* tlioi* i^fiArwar^ 
ftlAlntirf was «tiil 9r*BBiiig Tor payment, wh«n di*fttt>lArit« «t«t«tf 
th«t Mr*. TolDifi hA4 tftn lnt«>r«tt or xeorc tmaa $Xt,ooG in r«*l OKtAt* 
loeateiH at^mr th« ynivvs'sity of Cliteikisio; titat p>lttlRilff a«k«HJ th»% 
thi» %# tum«»^ over to it, >ut f«rt«r oflflui enx>r««r}on(3«(iatt nothing 
IT** ieno In tiil* matter. 

I>*f«n«l»ut» <ii?«ro ^9th gi-vae %««i ^ay* iiotle« Ir; writlo^ !• 
|»«y tiiio not<'f <t»t thm eoIiat«r«d weui-i b« 6&ld» AfttfTvmri ihoy wor* 
«ftoh D9tii'l«d of thti tiflso an4 |»Xftlitt of th« s«lo. PX >Lnttff t>uhii«h«i 
en iHa lOtK -wid l^^th ot '^^m-i'^ar in « &o«rM\ii%p«r oire!AX!^tln«s In Hobo* 
kmti ft un^loo Um% the otooJc •iittl.d %wi ttoXd, givia/i tli« tljn« «Rd 
fi'l^ae. It «^«Lff i^« ^lit;/ of d#f«ii^«At» t« s«# tibat s(mi&« one wmi pro** 
iiRt "Wh* n?oiil<i r»«ty «i fair i»rl«« for tb* •toatk (if th«»ro r'^m «ueh * 
pmtttnn or cow «m) (McSowoljL v., Chicago mm «X Worko . 124 111. 4«*1) 
MNl ftffiitr«3tly th*y Had %dt^, th* n»Hf*i<ii*tit of tu« ooKpany, nnooor 
at tho sal*; but it 1« qxitlt* obvie>u« that no ofi« would buy th<» otook 
at tho tlt^ft of th* *al» beesuao It «as «ntir*Xy too ooneulAtlv*. 
MiA »e tiilr* judlolal notion at th* graat "leftrftBolon «.t th«t liit*, 
(M£feai..,Xf.,.CM.^M.a >lJJUj5.JLlJ^£i^^» » 2''5 iil. A»o. 65; At*ia*qn. 
ft..A..e, y^ Ky,. CO...V.. U.^ S,. a»4 U. a. 843; ^&rriJt.ikm»J^AM. 
Hicfe^OKa, Ya. y. a*nitor*oa . 97 f. (aa^ «4.) 386.) fhor* «a« oracti- 
•aXIy B* Aqaity in any enouwlDorad oro^orty, r«al er peta'urial, at 
t)3at tlm*. Of ooura* it va* plaii^tiff^s duty, r«^'itrdl«*« of th* 
tuiliifiit«4 i^*««y $iymi to it in tiio ooliattral not*, to «*X1 th* 
•oXXatoraX. ^d to ^«t La th« «al# nf it if* the «tri*t**t ^o*4 
faith 3ja<S ffiiir 4«*ii]ift towanf ^ofordant*. J(ut it i* obvlou* 
»l»lntiff m ««t ^itn th* uts%o*t &994 faith. It h«d h**B pr*»ffiui; 
f*r n«arly tw* yaars for fayoiwt of th* a*t«. th* bank did a*t v*at 



01 



LA 



tltn o«lIftt«r«l ftt m&f ti«« *t any prl«c, «n4 it It aIcmt ttxmt it 
wm» willing to aujrrmd^r it to 4«l'«»(tiu!itt ttt anjr tiK« uuon p*ya«»t 
•f th« in4«btttdti«s«. In ri^ot, thin i« •p*«ifl«AXly •T,«t«(| liy 

«eunt«I ftv ()«f»nd!ant» ia hin brl*f «i;i«r* Jft« $«y«, **«> wish t« ytint 
«ttt ^at th« i^nitllAtt Qlaintiff) i& this «■«• to&n now Atmndoncd 
t!t« position it t&Alnt4kl&«d thjroui^Jn^oat tk>« trlAl t^Mt If it* aaX* 
«»• invalid! it wanted to tondor tha atoalc f^r tJfto amoufit of tlia 
••t«,* ^fm^mitm iltjt »9t ivant th« atook undar th«e« eoedltloaa, 
aii4l, ttnfertu7<ataX7, Itlta »aigr i»*oi>l« at itmt tij»«, vara apiiarantly 
analgia to |»ai^ tba noia, imd altouldi sot li» 9«rmitt«(4t to oo«pal tba 
toank to pay for thia ap«OMl,^tiira «toak 1X4,000 in a4di,tio>& to tlia 
|92«&&0 duo OS tl^a Boto« whan ti%a a took h»4 no M&rkai »«•} but 
▼ary IittXa» if tmy, ai^ao^Xati-vo TSkitta. Bat ono aonoX^sioa oaa 
1l« draan t't<m %h* airi4«»fie, ^i «lia ooart aitauXA teava dir«et<^ a 
irer<liet Jar th« i»X«UUitirf at tho elet« of t^a «aa«, but aat 
)iavifi# dena ao, fX^dJ^tiff *a aiotioa for Ja4|i»iafit in ita favor 
fiti«uX4 liatra bofoi «XXow«d, Bot^it^iatiKidiaiS t&a vardiet. 

Stoa Jtt4g)aa«it of tka MuBiaipaX ©o«urt of fcaua^o 1» r*T«raad 
att4 the oauaa T*&.aaA«4L with 'Ur«atlofia to autav jud^waat is ^Xais- 
tiff *a tmr»w for tka anioiiat of It a eXalK. 

K«3Mral7, P. J., and Matahatt, J., eooeur. 



iiotrnx- 



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fTt(*V 



iKI8 TLQSa&KIt, ) 

Appellant, ) 




Ap^xa... i 28 51. A. 5 83 



ill.. 9XSJBJI, J ^ ^ «. ./_ _ _.__-! 



m, JU4TICK O*C0iSJSO» ffiKLZVlSfi&I} YHK OPliiXOK 0? TSX <»JOHT. 

Oetob<»r 17, 19 3S, pl«iiitltT OAUsed Judl^psMit by eenf*»si«n 
to be «»it«r«A on « i>roRil»torjr Bet« for 9500, dat«4 August 14, 
I98d, <tt« 90 Amy tiftor 4»t«, payAbl« to th* ordor of tiio C3iicftg* 
l>ightlaj( lixturo Co. Atnd by it oaaderoorf, against tU9 B«je«r, Al 
Sidor. 7h« ju^i^«nt «ae for |711, b«iB«^ tho fao«i oi tii« noi« with 
iiitorcHit sindi ffta. SO sttomey'8 fo^-s. 

Mi^ 30, 193n, th« court on saetioi. of dof«ndMnt op<mo<! up 
tb* ju4gtt4dat Mid ga^o hla loaTO to dofood. Dofondant'o affidairit 
in support of tbo motion was erdorod to stand as an affidavit of 
ffiorits. It sot up tJ^iat defesAiiant l«aim«d on itt^ 17, 1935, ttiat 
SuAffAmnl by eoKfoesioja had b«fin «rit«rod s^g^ifist iiim; tnat dofendsAt 
liad paid tiio aoto to Uxe piiyoo, tho Chlaatfo ^^Ig/itlag Vlxturo Co« , 
asd hadh rtio«iT«d tbc ncto fro& tlie payot at the t.i»«, but that tiio 
a«to was afterward lost or stolon auad that plaintiff was not th« 
ovnor of It; that Ootobor ao, 1939, throo lays aft^'r tbo judgnont 
>y oonfffisslon «as »jat«r«d, plalritiff eausod an Axoc'^tion to be 
issued, wuieh was rttuniod by the bailiff of tho tiunleipal oourt 
i^o-vombor 13, 1932, t^o return showing defeclant was not found and 
that the bailiff had found no i>rop«rt.y on whloa to satisfy the 
•aeaution; that dof«&'i>ant had all the t.i:iiA r<>sided in <;hioa«;o; that 

his resideneo was ^iiTen in 03x1 eagu telepn ^ne direetorios and he ooul4 
hsTe boon served with an oxeeutlon aad plaintiff desired to do ss. 
JuBS 1.^, 19 35, the oaso «as heard before the oourt witiiout a jury, 
iko ssurt found the issues in f^ivor of dofeti4«knt, Jttd|isi«nt was en- 
tered on the f IndlBg Mid plaintiff appeals. 

I 



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Plfliiiitlff oontmnAt H^nkt uBi«r thv !«« the butrdau wa» on 
i«f«n4*at to •Btftbliaki hio d«f*»ii»« of pwfakimti thai ht faU«4 to 
•ttsialn thio 1aur4«B Mid the finding &a^ Judgia«>J3t In <lofftnfi«tnt*o 

f«Tor Ir ^ikinot tho laanlfftot w^l^ht of thft cnrideuoo, 

thm fiu»nti<iti ioT ^oolalon 1» a qu' etion of faet to b« 

iot#r£..lii«t4 frois tt ao»nl<««»ratioxi of all th« «Tl4«noft. Flulntlff 
offeror iho not* in m-tXimi^tt m*A r«»toa« Xi^f m'u\m\t oall«d t«o 
wlt£t«B««a, JtiQtih L* SiSil3i»aii, fon&or presl^ont r&nrl trftaouror of 
tho payo!^ oT the not», tbA Ckl^aieo JLlgHtin^ Flxturo Co., who 
t^stlflo^ that the tiot4% wa« paid to niM by d«f m^^is^mt. Dttf«rtdiacit 
also toatiflo^ that h« paifl th« «ot« to th« payeo. On th« othor 
«i«lo, Maurlo* J. FionsJcor, trothor of plaintiff, t<?«tlfi«a ho 
paid th« «ot« to the p-^yeo at tho r*f5(U^9t of th« smkmr ©f tho 
»et«, »nd that lati^r on he gav«» tho aoto to Uis 1»rotiiOT, tho 
plaintiff, ill »art pa.3rsj;«nt for nonoy h« had borrow!»<! froE ilain- 
tlff, 

tho oTli^ftnoo furt ior shows that Mauri oo 3. FlonsJic«x>, tho 
4«f«n4aiit Al ii<3or, aarid Alox a. Wol<i^a wore partner* in tho son* 
ttruetion of % building an4 had ipuirchaood el^otrieal fivturoo and 
•tttij»Bi«at for tho Istill^^lag ftm> tho Cnicago Llj^.riting Hxt-uv Co.; 
that th« fixtarto cost noveraX thousand dollars, »ll of which va« 
9al<? «*ooi>t $5<X? -iMS'J, that defmdi^^-t, Al Sider, g«v« tho not* In 
l(ttfstion in pajtsent of that li«il«jrieo, it to«in^ th« ^owunt romaifiing 
4il« ttcm Al ISlior as hio r ^rt of tht ao«t of the fixturos. Aft^r- 
wajrd iho partnership was disaolvod, there bein^; so»« isisundoro 
otan^fini h^twoon Kaurieo J. Flonritkor and th« othor tiro. 

Sidor tostifiod that '4ft«>r Uile occurred, aaurlo* J. 
Flonskor ttnu^i fnr tho f le contaiiain^ all p*p«ro in connffotioa 
with tho purchaoo cf th« -lectrical oquipwont fret;* tho aiiea«o 
Lightinte »lxturo Co., an l that wi tnoss turnod ovor tho fil* 
whtoii ixiadvortofttXy oontai««d tho ttuoanooiitd not*; that h« took 



'■■■cinia«iQ 









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.nxi 



LP* 



htJB* 



i,.«. .i«»tti3 fiM ^ MoviMial .olxif 



» rsotlpt fron Plonsker for th« fiXe at th* tln«, tmd &• t««tl» 
fi«4 •!) th« h«»riag ti:i«t hi* attorney, wxie was Uica eoaduoting 
tho del'«u«Oa ha4 iJio roeoipti his attomoy tU«*r«upou r«pllo4 that 
k* 4i4 hav 8U0h recoipt; e >uua«l i'or pialntiiT Dion aakad his if 
ho would pradiioo tho reeolpt, \)ut tharo vao no r«« onoo; tho r«- 
eolpt «a« not prodaeod and noth^^iig further was oaid utiout it 
dttriS(» %iif> a«ariiig, 

AXox Of. ^oI«ua, called by defeudaAt, testified that he 
delivered the note aad records in the Chiua^so Ligjtitin^ fixture Ce^ 
files after tho dissolution ol t'ae> p&rtnersiiip to ioaurice J. 
PloriSiier -^.' got a receipt for them frc»a ^lotieicer. Ihie reeeipt 
was Bot proiuoe4 or aeeaunted for, nor was the witness ifiterregat»4 
suffieiently on this point. Although eou>j»el for i;>l^intiff In his 
brief laye stress or tU« fuet tiiat the receipts were not pr«duee4, 
ae reply is i«ad« to this point. 

Salxsian, ealled by defendant, testified that at the tine la 
fueation he was president and treasurer of the pay!»e of the note; 
that unofi reoeivin^ the note he <iieeount«d it at his bank; that 
later def »ri<)%i't, the saker of the note, i^ade a payment on aooooBit 
of the note, took up the old note and gave a n^w on-^ i'or the bia^Anee^ 
vhteh he also diseount«d at ti:ie b^aak. 4s furt^ier tf^atified that 
soMe tijsne after the nets was p>ii : to .lim, Maurice J. Ploneker ooko 
to hie otfiee imd asked his to tasJte so»e sort of as endersMBent on 
the not* tut that he refused tc :!o so; tnat Flonsker i^ail the note 
was pnid* Just why sueu endors«sent was £i.eeessar> is not explained. 
l<k further testified that PlousKer said th<^ note had been paid. 2k« 
testi«£ony of iiis witness is sueh eocfused, 

Plonsicer d«iied he h&d ever called at ^alxi.an*s oiTlee; 
deni^^d he ^ald the note w.-xs paid, end denied that be asked for Ml 
•sdorsement of the note by Salsaian. Me testified t/iat he net 
talman on th« street one day ia September or October , 1932, and 



%at- 






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ifnse-*' 



I '.i A.ii LlO J. U. 



It 






\iAif *IM» m%9\i% ^lU OA ngWJ j t 



9tat«<3 to gtftlcMcai Ikmt ^oftrndant, 3i4«r, toad n»t 9*14 tb« not*; 
that th« wiUiosB had giir«in th« not'«^ to iai» bjroUior, who hmd 
J«40B«nt oonfosaod on it, «tnd anicod JJlaliuaaB Xi^ ho woul4 1»e vllllnK 
to oott« to court ao a ^^^Itneos. Juot why it would !»« lioeooaarjr ia 
roquiro any witnosa we siro una^Me to undiorBtaad, atiA ia« oxpXanatlon 
la atada. Tha ju(!«^:j»ent had h«im^ «r.t«rod oti tha Bot« at tiiat ti»a audi 
it «aa more than two yaara th«r«aft#r whan dafanetant aought to op9n 
Vip th« jttfignant, Tha witnaaa Wel<«iia waa tha imala of j^aarioe ^. 
FlonBif«r an^ %t tha tluai* of tha trial «&« atlll a p%rtn«r ol tha 
daf«n4%tu, A3L M4ar, 

Maarie* .T. ^lonaksr farthor t«atlJ'i«4 th»t on Auguat 13, 
192S, ha nawa hla cheek to tha Chiaano JLightiBii fixtura Co, for 
|S07*5i^, aQ4 tha eaxieallad oiioai^ ia in tti« r«»oord; taat this w*a Ifi 
paywi^nt af #300 an aaaouxtt of ta« laota and |7.{iL* fo^^ Interaat; thai 
ha ai't^trward pal^i} tha b3i>,l«i<noa, $Kj^, out wh«th«r tey &u«>ttJ&' or eaah 
h« w»e un%tl« to isay. fho teatiii&oiay of this wltnaae ie alao oon* 
fuaad. Xf tha arl^ljuad nota w»« for fSww, *# i*r«; aiir.:.tle to undar- 
•taa4 why, afttr |tC>C was paid on it, tha note in ^ult wrtuld ba 
glwan ritr IBmO. 

'"dJTtAr a earefitl eoi»ald«r«ition of all th« eviaattaa In tha 
r99i»r4t OKtah af whioh wa h«v« not dlaeuaaad li uiia opinion, wa ;%ra 
«iRaM«» to 8«y what fh<<i faota In tha eaaa ur^. In th^ao olrouaetanaat 
«a earmat say that tha finding and ittttdpaikt of Uxe triaX Ju^ga, who 
•aw ttjnA h^^r^ tha wltnaaaaa t««tlfy, ia i«^'»ln»t tha naolfaat w«lghi 
pt th« awifJofioo. 

Far tha rtasoxaa atatad the J|u<i«,a«nt of tha i^uiiioipal eourt 
af Chioa^o ia affinsad. 

Ma^raly, P. J,, and M«teh«»tt , J., concur. 






a£ && 



.Or.-*:l,- 



»rt' £ji;'t*ijsc j; X'^yi^. 









^1 



'40 



. ,ti»tMGM 



38716 

LOUIS Goam, 

Plaintiff, 

▼«• 

UAX KIRCHHEBOIR and KIRCHSSIMfiR 
BROS. CO. , 

Defendants. 



U. C. LIVILGSTOK and LSO T, KAUPMAK, 
Doing BuslnesB as LIVll^iaSTOIJ & KAUilU^ , 
Petitioners- Appellants, 



vs. 



MAX KIRCHHEI1£ER and KIRCHHEIMER BROS, 
CO. and FRAKK WSSB, 

Respondent s«Appellees« 





ROK 



APPEAL raoi SUPERIOR 

COURT Oy COOK COUBTY. 



O 



5 IX 5 83 



X 



MR. JUSTICK O'COHHOR DELIVBRED THB OPIHIOK OF THB COURT. 

Livingston and Kaufrean, attorneys, filed their petition in 

an 
a personal injury case, praying that they be awarded/attorney's 

lien under the proTlsions of Par. 13, Chap. 13, 111. State Bar 
Stats. 1935. The defendants in the personal Injury case filed their 
answer, denying that petitioners vers entitled to a lien. The mat- 
ter was heard before the court, without a Jury, who found against 
petltlon-ers, dismissed their petition, and they appeal. 

Both parties agree that the question involved on the hearing 
and in this court is a question of faot, and that the trial Judge 
having found in favor of the defendants this courtis not warranted 
In disturbing such finding unless it is against the manifest weight 
of the evidence. With this we agree. Both parties further agree, 
as stated by counsel for defexidants, tnat "The only point in dis- 
pute in the case before this court is; Did Louis Cohen ever ratify 
the contract which his wife, J'annie Cohen, signed on his benalf , 
purporting to employ Attorney Leo iLaul'Eian in a personal injury 
case?" 



The reoord discloses that plaintiff, Louis Cohen, was 



soia»i\M toga JA3.1 



:?. 



B8S .A.I ^ 



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divae 

61 U0.1 



.Vtli^niBt'^l 



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LA jCa-iI 
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rcBff *J«*S ,111 , i.C ,f,i .■ o »nofslvo-i(? ©ft* i«fcn« ndll 

lenifc^ ijiiijo'i oiiv ,>liwoo ari^ e'lo'terf IvTJieii saw ««^ 

tiislew *a*'tlnijia ©aj ^Bni.*;^. aa»laa j^albal't doun goidtaieli) al 

-Bib cii iaioq ^Xiio ©- .edrusl/Us'leJb lol ii»«nti<oo x*' fcoJ^^-^s •« 

"?3«4BO 



MV 



,«i8rfoU eiuoui /ftJt*ra«Xq J«itt »»»#lo«i* fcrfoo«i »ril' 



injured In an automobile accident on July 14, 1933, which he claimed 
was oaiiaed by the negligence of defendants. The petitioners' con- 
tention is that on the next day plaintiff, by his wife, i'annie 
Cehen, signed a written agreement by which Cohen purported to enpley 
LiTingston and Kaufmaua to represent him in his claiis for personal 
injuries, and for which services he was to pay them 40% of any 
amoimt recovered; that six days thereafter, July 21, 1933, JELaull&aB 
■aw plaintiff Cohen, eiqplained to hiia that his wife had signed a 
written agreeinent of employment as above stated, and that Cohen 
ratified and confirmed the agreement* 

Defendants' position is that Fannie Cohen had no aut^oority 
to sign the agreement on behalf of her husband; that it was net 
ratified by Louis Cohen; that on or about July 29th Cohen expressly 
repudiated the document signed by his wife, and employed attorneys 
McKenna, Harris and Schneider to represent hl-a in the personal in- 
jury claim, for which he agreed to pay them 33 1/3 per cent of the 
aiBount recovered; that afterward these attorneys brought suit on 
behalf of Cohen against defendants to recover for the personal in- 
juries; that when the case was about to be tried it was settled by 
defendants paying |3250, 

Vhen the matter eame on for hearing before the oourt peti- 
tioners* counsel called itaufraan to the stand and proceeded to ia- 
terrogate him as to what was said by the witness jxnd Cohen on July 
21st which tended to show a ratification of the written docuinent 
signed by Cohen's wife. Counsel for defendants objected on the 
ground that the petitioner, Kaufman, was endeavoring to establish 
"agency by testimony of the agent," This objection was erroneously 
•ustiined. The evidence was entirely proper; the question of agency 
WlkM nln no way involved* Petitioner was endeavoring to show by 
direct testiuiony as to the conversation between himself snd Cohen, 
that the contract of employment signed in behalf of Cohen by his 



kBMdJUo »/l xiojtxir ,5C(?X .M xLdI ao ^ndMoofi «» X id oi90<^«« n* at bttitstnt 
-aoo 'eisHoiJiJsq srfl' t'^iastfism't^b 'to 3onajili.a«n dri;* ijrf ftj»ett«t> saw 

^oX<3«e o^ li^ttoqtuq a»floO iioixlTr ^d* 4-£»fl«»»!CS* a^fiJi'xm a b9n^l9 ,a»M3 

Jjtno9t^(L 'io'f. mi££o ntL nx iuXA i^waas-xq*! oi ajsttj'tiffiZ bOR noiBanirlJ: 

Xtte "to ^^O^ ittoxU ^ijq o^ a.v oxvt»8 tiox , iivtjsii 

amiR'tus^ .^-f.ex ,12 ^Xwl, ,i9j'i«&i&A^ a-^i> xle **;: .':')voo»i; iauoaim 

M A9xi^la i^ii Sliw etsi iAti^ alii &i Jb9iix£Xqx» ^OdddO t'tital&xq w«a 

osrfov' .ttrut f>iiH ,/.>e;t4B:^a ©vorfB a* iJ its iav.o lepras to Jtfxerja^tiifii cit^^Jiitw 

,d^a«>Kis«'s;af^ tf^i'lli&i 

XXae^iqx© nsrioO xl^feS xlvl- vty^d'^ to no t.c.-'i in-AtioO tsivftd y/i b^itttAt 
-fix LenoeapQ: !>i., .■<!»R«»t«*^". .fianrfpe f»fi« alTTflP ««n««XDM 

-ai X«no8i©< j.tcmbi:i«'X9& isal£^ tuinioO 'to tXaxfeef 

-Jtteci ttooo •ilJ »ic'i»cf jiiiino.'; ToT: no »fiuBO rjaJ-dfita •d^f^aexHI 

efej-SToirf t>n--; g'lnr ■ .TttuiiJi fteXXaa X^anijoo 'ai^noi^ 

#aa.3ii;i3ofr a»*c;ic' Bit* 'to «olJs.-oi'll^i^*T £ tp-oiIb o^t £>a|jnel rioirfw talS 
•Ji^ no •;•"-:'•.. -J, . -.abaf^'t"^-' . ' hsst^lB 

XiS woAB .. . . .uvfisfcna saw taiioi* tc^?»1 ..b^vXovtti ^«w on nlA a«w 
jiirf vu ..-.,, .. ;.^, .^., ..J. ;,, *^ w.ii-.,-.-: 'aaiiaoo 9ii indt 



wife WAS ratified by Colien. Later tbia testia&eDy was admitted. 
The witness testified that shortly before the aocident he had soca 
"business dealings with Mrs, Cohen; that on July 15th, the day after 
the accident, he vent to tlie police siation with Mrs. C;>hen and a 
Mrs. Goldman, at which time he wrote out the contract of eiaployiaent 
which was signed by krs, Cohen on behalf of her husband; that en 
July 2l8t he and Mrs, Cohen went to the hospital to see Cohen; that 
he then told Cohen his wife had signed a contract employing Kaufman 
and his partner, LiTingaton, to represent him in the personal in- 
jury case, for which they ^ere to receive 40^ of any amount re- 
covered; that he teld Cohen he had the contract with him, and 
Cohen replied hie wife had told him she had signed the contraot, 
that it was all right, and for petitioners to go ahead and v/ork on 
the ease and do the best they could. The witness furtner testified 
that at that time he showed Cohen the written statenents of two 
witnesses wliioh he had secured and which were in Cohen's favor 
conceiming the accident; that he had secured the names of two 
other witnesses and was continuing his investigation of the ease; 
that at that time Cohen was in bed with a bandage on his nead; 

thAt Cohen told him to keep on working on the case and do the best 

in 
he oould. There is also/evidence an iteiaized statement of the 

serviced performed by petitioners beginning on July 15th and 
ending September 8th, on which date petitioners received a letter 
from Cohen in which it was stated that Cohen's ^/ife had no au- 
thority to sign the contraot purporting to «iiploy petitioners to 
represent him In the oersonail injury case, an I that he did net 
desire petitioners' services any longer. 

The evidence further shows that this letter was dictated by 
Mr. Harris in the office of McKenna, Harris & Schneider, «nd 
nailed to petitioners, 

Cohen, called by petitioners, testified that about five d^s 



-01 inuoiy , .-) 'r;'A)4i 9rl9o&% ot ®"X*r ■^»ii4' xloiio" 

,*B»rr^n©o 9ii* fsfingia feeii Bda- mid bleibtisi 9'll^ siii fe«JtX<j»i ni^iio'y) 



OWi 'to 0" 

-ua orr fcj 



\uo& igdiiJ i&st^ ftiU* cb tna »&at> odif- 

:'*T.i<v^'i had ©ii n&ii. ff ao8a«rii^xw 



r-.t ^£t^•1l<' .i-'. 



• .-. -a .-> Z .1 i :i «) c; o S h B 11 BU 



R^jt ^lii- iUQOJB JJ&Uii fcsiii.a:^^ , s;'i,jiA>,'j. ■. .. j w; 



after the accident Mrs. Cohen and Kaufu.an called at the hospital 
wher« he was oonfined to hie bed; that they talked about peti- 
tioner*' employment and the contract signed fcy hie wife; the wit- 
ness oorroborated the testimony of Kaufman to the effect that 
his wife had si^ined the contract of employment and that he had 
•aid it was all ri^t. On cross-examination he testified that be- 
fore the accident be Jid not know the law finn of AiicKenna, Harris 
& Schneider; that he first saw them about six weeks after the ac- 
cident at their office, where he went pursuant to a c^l from 
th<H&; that about July 29th a Mr. Uerkin, together with Cohen *t 
cousin, c3Bje to the hospital and Merkin presented a contract, 
which Cohen signed, employing McKenna, Harris & Schneider as his 
attorneys to represent hiv in the personal injury case, for which 
Cohen agreed to pay them 33 l/3 per cent of the amount recovered; 
that Merkin was sent over by kcKenna, Harris & Schneider; that 
afterward, on September 7th, pursuant to a call from the office 
of McKenna, Harris &. Schneider, Cohen went to their office where 
he signed a letter dictated by Mr. Harris, addressed to the peti- 
tioners, advising that he did not want their services longer; that 

already 
before he signed the letter he told the attorneys h^/liad a eon- 
tract with Mr. Kaufman and that they told him Kaufman should not 
have (anything further to do with the case, to vkiich he agreed; that 
his wife was present at the tiae and she also signed the letter; he 
denied that he had said, as the letter puroorted, that his wife had 
no authority to sign the contract aaaploying Kaufman; that he nerer 
read the letter; that afterward licKenna, Harris & Schneider filed 
his suit to recover for the personal Inluriee, and when the case 
came up for trial Itr, ii-cKenna was representing him and Kaufman was 
not there; that he had ne further dealings with Kaufman after he 
signed the letter of September 7th. He further testified that at 
the time Merkin and his cousin came to the ho8t)ital. about two 



-tS^q iu9die b^H-lBi \9iii i^a^ :&<9cf ai^[ cxi b^ak'tacyo saw 9si sx9dM 
-tiv ail} iftiv alii x'^ l^orc^.t^ iaaxtaQO »ti$, kam Sa^ai\oZqF^ 'arc9aox# 

bod 4ii iadi basi )(mm^oiqta» to ^n^stinoo '^ Cj^ii atlw vJtii 

,^»^ii;^n<»-j J3 t^inUfn^^qi etX^t9'f& btus. L^iiqaQSi ^di oi dote? ,nlisuo9 

; ^eTCovo'.)9i Jnuaate ^ ■■''■ smd3 x««f o^ fe>sBT^ fl©iio3 

••t'fto «/(* acei't IJUbo « •# ^oejie-xo^ ,xl;f? rfi^^fttic" . yis'''^(9tlA 

^indxr »olTio ilsiit oi *ii»w «0fi«a ,Tt«6i9a(Jfte ii eiii^E »«£meil©ii 'tp 

;^firi^ :T»3Hoi 8«oivi©e -jl^ri;? ^fuiw ;foii fcifc »d S»di 8jai»iyfc« (STC^naxJ 

^oc fclMorie nfiiii'liXBii «iiii 'Ic^ ^*ii? Jeds b*-u$ «M>-iiijJui ,«M xl^Tx^ joa^J 

^•vfcn <jil ifids^ jfttm'iwKA aiii^oI«i!» d-ft^rtJaoo »riJ ct^^» o* Y*i^o^*^ •« 

•d ttt^M tmtxlueA diiw njioiiawb ^idfiJii^'l: oa bttd 9d isiii ;i*x9di tan 

tm iiktii b9i'tli9»i Mfti^ui ah. ,di\' iB^tM»iq9& tg rtti^L •di *»«a-ta 

«wi ittfodie" . JU;r ia»«t ffdi oi &m.o atauoo aid bOA alifH •«!* ^dt 



weeks after the accident, hie cousin introduced him to kerkin and 
eaid iiCrkin repreeented ^r. A.cKenna*s office; that tney were "the 
biggest lawyers;" that witness then stated he already had a lawyer, 
Mr* Kaufiuan, and Llerkin then aslced him how much he was to pay, and 
he replied 40^; that iaerkin said they clxarged too mueh, tl^iat •¥« 
get the hest lawyers and we will cl-iarge you only 334; we will get 
yeu a lot of money - about ^50/JOO;* that he then signed the een- 
traet ei^ploylng h.r, ]kc2lenna and his firm; that he told th«a his 
wife had signed a contract before that time onploying mxt i^aufman 
and that witness had said it was all right, that hie wife did right 
In signing it; that thereupon Uerkin asked him, "Did you sign it?" 
that witness replied, "Ko;" that Merkin then said, "Well, then, it 
is all right, we will take care of it," 

The ftviderice further shows that on August 2nd, 1933, peti« 
tioners sent a notice of attorneys' lien to deferdants 9nd it was 
admitted on tVie bearing thut the notice was received by defendants 
on the following day. 

Defendants called attorneys MoKenna, Harris, and Gerhhon, 
one of their associates, MoKeuna testified ttiat he had a conversa- 
tion with Lr« Jtiarris about some other attorney who was supposed to 
have sometiiing to do with the case; that afterward Cohen was in 
their offices and stated he did not want the other attorney; that 
there v/aa a conversation about the contract signed by Cohen's wife; 
that Cohen said she had no business to sign the contract; that he 
did not want that lawyer to represent him; that then a letter was 
dictated "by Mr, Harris, addressed to Kaufman, which Cohen and his 
wife signed, advising Kaufman that his services were no longer 
needed. The witness testified that afterv/ard he started to try 
the personal injury case, when the matter was settled. On cross- 
examination he testified that the Cohen case came into his office 
through a cousin of Cohen's whose name he did not recall. 



■>4i* ©-xev yfiui t9ai ;»oi:'l^fi a'j^affls.'U" *;a.t safid'rqsri: ^liiTieii lii«a 

:iomi woxi i!Klj;i M^ium a»di nlAiBH box ^a&Mlusjl .xtf 

gird ,..-.:! :.i'.. .-Jl'Xl'i., ,»tj|«i .;fe»S6 iiOtMkAOM ,tSJA .■^flLix®*'^^"''® i-0j3«J 

tiJsi^i btb 9'tl^ eia iuii$ tiii^X'x lis Sisw $i hltM imsL mm^a^lv ijssit ktut 
SI a^lB aox hid* ^ai^ ^9:4.92 olilitoM aet^m&^aiti JurS ;Si ,^siia^i» nl 

8£w Ji iii^ fij ^fem'!')/) od^ a»il *$iit9in.^t&m ^& •ox^oa a j««8 B%9nolJ 

(aoiuii^t; tan ,9i'3.iMi ^»0e»ASiJ>i a^«m6ifSjs fcaXIiso **aiil>ii©'t»CL 

96. iuAi \i9m%inoQ 9^ araks oi sedoiaj^a en &u^ •'is l>i>«Q nofioO ^sil^ 
a^v? xaJd i oeiidr jiiiij ;jbx4.j ^ift»a©iq»-x ©.t^ i»-<w*ii; *i>iiJ Joew A«a fciA 

•xfiijaoX »« STcaw aaoiviett nixi ^jmU asiuiijiiUi aaiaJtvfc* ,&»tii,Hi« allw 

-••ft-Xd ao ,fc»IitJf>« i««w t4ttiHiB 911? a<*^rtw ,«««© \;iutHl X««o«l»«r •*** 
«oil1e aixi ot'xl »ia«^ •«ao nsxloO art* t»di i,9i'iki90i t>ti aoiiaalamx* 

• XJU»09i #oa biJb til »ia;iis ©aa^iw i^aaiioO 'lo ax«i(»o b iiguottii 



Attorriey Harris, called by defendants, testlliea iie w&a a 
m«aber ol* the firm that represented Gehen in the personal Injury 
ease; that prior to September 7, 19 33, when the letter wa« pre- 
pared in thftir office, signed by Cohen and his wife and mailed to 
Kaufman, he had se-reral calls from JLaufmaa in which Kaufman ad- 
vised witness he was rcTjresenting Cohen In the personal injury sultj 
that witness said hie firm represented Uohen in the case, and if 
Cohen di-ln't want them they would withdraw; tnat ICaufman replieA 
he didn't waunt that, bat if they would give nim part of the fee it 
would be all right for Harris's firm to proceed with the trial; 
that witness replied he was not Interested in that proposition; 
that afterward, on September 7th, Cohen and ais wife came to the 
office at his request, and that he dictated the letter to Kaufman 
advising him that his services were no longer needed, and had 
Cohen and his wife sign it and mail It to ilaufmanf that at the 
time of the preparation of the letter Cohen said ^cutufyjian didn't 
represent him; that thereupon Mrs. Cohen spoke up and said she had 
signed a contract, and then Cohen and his wife said they didn't 
want Kaufman in the oaee any more, and tnereupen witness dictated 
the letter; that at that time Cohen said he never eiuployed Kaufman 
and that his wife had no right to sign his name to the contract. 

On oro 8 s-examinat ion Harris testified he didn't knew that 
Kaufman and Livingston had filed a notice of lien on defendants 
in the personal injury case; tnat iiLaufman never told him he had 
given any such notice; that he knew jk^erkin, out merkin didn't wokk 
for their firm; that he brou^t the case into their office; that he 
had known MerKin for several years and he came iiito their office 
now and then. Ue denied taat ne had a conversation with Kaufman 
in which the latter told him he was goint to ineist on his lien, 

Louis Gershon, the attorney associated with jyicKenna's 
firm, called by defendants, testified that ;ie was present at the 



v-t.-' >• Inao^t^q ajl* ni as do J b»rfrtese»o»"i t»^^ aatt •xt^ t« Tecfmaw 

frsiie^'x i^i£i'xj.^jsd i4iii$ ;^BTtitil^ i»Iud« Y#ii2^ m^ii^t inaw i'^^ih nsx!.o3 
;^1 sal t»£tj ic Jt£q iJttii ^ri^ bAuott x^slt 'ti :tu^ ,#«ii^ tnus^? i'af>2b siii 

looi^rieofieiq ;l^iijc£d° nX fe£>^a»79jni fTon ajsw a^i MiX«ei aa^n^iw ^srft 

teii {)ar> ^b^hassx l^^uoX sa a-zaw aaoXrt(»s >sXii ^«£(# aiXil -a^0<t^te 

9xii »B j^cAv ;a»jH'i&Ltti!i o>f ^1 XXsiS taui it a^ia atXw aXi^ £?fu; n«»iioO 

#-^al»il> jaaMliiai^ bi»0 naileO 99^#aX siiJ to aokt»^Mq»'iq ^si$ te 9rIS 

]^sl 9djBi bi&a ba^. qu dloqe adhoU .anji, aeati&imii i»ui ;jsXf( iBfu^tq^r 

t'ablb x»[ii 0isn alXw mia has, tseita^ ewii^ Jj^fiu; .jTo^rt^aoo a Jbansia 

Mt«^aX^ 8B«a^i:« a9qu»i9tii hae. , oxem pi£; 9a«d ax£^ ifl ftfiin'^u^aX toav 

£UMi'li/jB^ h9x9lQia» -x-arsiit »A hlms n»doO waXi iadi im t£tM ;«ati9X 9tii 

.j^8at*rt«o ^- Asa alii ngXa «»* 4*13X1 on toJf alXw alii »»fic^ fcoa 

J«tti »OEat *'afcifc sxi bsX'^tX^ao^ 8i-'x«eHaoii«aXffiU9ata-8«oia fl«0 

a^os^b.iaXsl) ao a© XI Xrj soijon ja l>©XX't iwaf. «i«;>sai'i|iri.»i bma uam%»MM 

bMti Bii «Xi .!?V9U asiB'tuA-A *Hft? ;da«fi x'^^'tait XAtt««ia«[ aiW aX 

llow ^*a6Xfe aJt^i' ,aiaiia«k waai »is. J^*/i;J ;aoXJon rioua -^tts n^vij^ 

aH i^iii ;a©iti- tisuj •sao axi* J^ijwxd act ;r«ii» ;«(i't "iXaxW lar 

aoJtVXo iXsiii jJiiJt »«»© 9A brua atAax Xjnaraa to'i aX34rt»4 awoazi Jhaaii 

iu.^ijj«^ riiir7 aoiJsaidvaoo i^ iw*n sii JjMXf JbaXiiab aH »a*iiJ' ba« w»b 

.«aXX alii rt« iaiisiij oi i^nlm. »^ *i^ «6*d«X •£« ii»ldv aX 

a'«iiaaiio-4 xUXw i^**X&oaa* v;a£rtotf** aii4 .HoxlataW alwoo. 



time Mr, Harris dictated the letter Tor the Uohena to sign; tJ.at 
at that time kr. Harris asked Cohen if iLaufsian was his lawyer and 
that Cohen said, "^o;" that iie didn't sign any oontraot, kr, 
Harris said, *Mr« Kaufman oallad lae up and represexited tliat he ha4 
a contract." Cohen replied that A-aufman waa not hiB lawyer, saying, 
"Your firm is my lawyer, you represent me;" that then the letter 
was prepared; that at that tifiiie Cohen said his wife had no right to 
sign the contract. 

In rebuttal Kaufman was called by petitioners and testified 
that Mr, Harris had called him to his offios about the middle of 
August, and "I told Mr, Harris I had a contract signed by Mrs, 
Coh«»i and that after the contract was signed I showed it to kr, 
Cohen at the hospital;* that "Cohen said hs would pay me 40J{; 
that whaterer his wife did was all right;" that "Your Mr, Merkia" 
went to the hospital and told Cohen he would handle the ease for 
30^ instead of 40?^; that Mr, Harris then said he didnH want a 
case where the parties had some other lawyer, but that "Mr, 
Cohen insisted and he carae down on July 29th and signed this con- 
tract;" Jthat witness said, "Mr, Cohen is now in the hospital and 
he couldn't come down * * * on July 29th * * *;" that iir. Harris 
said, "Mr, iierkin has brought into our office a lot of cases in tl» 
last few years," and "We hare got to pay Merkin out of this east;" 
that "we Till pay you for the services you have rendered;" that 
witness told Mr, Harris he was going to insist on their lien, etc. 

A client cannot, by discharging his attorney except for 
good cause, deprive him of his li«\, Tulka t. ChtcaKo City Ry.Co .. 
269 111, App, 234, Under the Attorney's Lien Act, ser^'^ice of 
notioc claimijig a lien has the same effect as an assl^vnment to the 
attorney of an interest in any judgment that may be rendered, or in 
the proceeds of any settlement that may be made by the debtor with 
the client, and is such an assignment as the debtor is bound to 






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if, ^Odil '.! ■ 



, ".-■OiiiT^S 






J Si! vii; 



■xi 






si i^nu ,«£t»iXe •dS 



respect. Baker v, Balctr , 268 111. 418, Where a person employt a 
lawyer and agree* to giv* him part ol" the proceed* recovered lor 
the eerylces rendered, and the dei'end&nt 1b notil'led of this fact 
iBy the attorney, il" the defendant afterward settles with the client, 
he vill be required to pay the attorney in acoordance with the terme 
©f the contract between the attorney and hie client. .SHti,t>h v, 
American Bridge Co. . 194 111. App. 500. 

The evidence in the case is that the day after the aecideiit, 
July 15th, Kaufman prepared the written agrees. ent which was signed 
for Cohen by Jars, Cohen and which purported to employ Kaufman and 
his associate to represent Cohen lii the personal injury case, for 
which he was to be paid 40^, Kaufman and Cohen both testified 
that Kaufiaan on July Slst explained the contract to Cohen and told 
him it had been signed in Cohen's name by liis wife; tiiat Cohen 
said the contract was all right and for Kaufman to t^o aiiead with 
the case; that Kaufiuan began worJc in the preparation of the oas« 
on the (lay after the accident and rendered considerable service 
in the preparation of it; that August 2nd Kaufman sent a notice to 
defendants advising tJieui of his eraploysient by Cohen and the terms 
thereof J- that about July 29 th Kaufman entered ir.to another agreement 
©fiploying another firafi of attorneys to represent him for one-third 
of the amount received, which should be paid by defendaite in the 
matter, and the second firHi of attorneys likewise notified the de- 
fendant? of their claim for a lim, but apparently defendants paid 
no attention to the notice, which they admitted receiving from 
Kaufmen, and no explanation is here made why it was ignored. 

The evidence that Cohen did not ratify the contract signed 
by his wife Is based on the testiifiony of the three attorneys who 
represented Cohen in the personal injury salt, tnat Cohen tjld thorn 
Mrs. Cohen had no authority to sign tne contract with Kaufman. 
Merkin, who procured Cohen's signaturo to the later contract, was 



•art'** "'"'■' '-'t t r u- :.,, 

"tot ,»ai?D VI.'!. Jrf»fi«i^ J id 

-?»b wi^ b*lii.SQn 9ai.w«iii a't«Aio.U« 'to unii: laoay ,j:f);tJfsm 

i»jf« fcXcJ- fl»ii©U tari^ .*xwft r/3MU\t I«-««»i£»«T •fft «l nfffoD fe«>*n»8«-r<^*t 



net called. Coher deries he made bucH statement, ETen if tie did 
Btate to the attorneys that his ril'e had no authority to sign th« 
oohtract for him, this would not he conclusive that he had not 
done 80 because Very little credence could be placed on anything 
he night eay. But we think the nsmifest weight of the e-videnca 
is that Cohen ratified the contract signed Toy his vife; therefor* 
the finding and judyment of the Superior court is rsTersed and 
Judjpttent will be entered in this courtin favor of tiie petitioners 
and against the defendants for 40 per cent of |3250, the amount of 
the settlement, which is |13C0. 

The judgment of the Superior court of Cook county is re- 
versed and judgment entered in this court. 

JUDGMSKT REViiRSSD AMD JUDGM3KT HERS. 

MeSurely, P. J., and fcatchett , J., concur. 



v" . 



*tii ouis 9i xitX9tiSua on J^;i »t -ta 

^JlJJlI ^i«r MOdO" nob 



Tiw iisar uaxok tbusy * sSAViiitta -"™-<y«, 




SCeft Its OOMfAifT* Xiit«rT«»or, 






^SSi.A. 5 83" 



im, ^»7XGS o*<^iii«6R li^Tfwmsi rm opxfiXo» or ?«»< couRf* 

In ft far««l«iictr« iiuit« «fter iM% eaus* ««• r«f«rr«<l to 
A MMMittr la ehane«ry, i\, Austin, <loljig busin«»« «• j(m»ai ii«ott 
& e«., «iA« will h^rviBttl't^r b« r^f^rrfttf ie «« (li« d«r«!ia i«r<t, l»y 

fe«4 «el4l to Xouis A. Al.1»«irt, 9<n^ ltis»t<ial3k«d Ia tli* i»uild&8|^ is 
f«r*«X««ur«*on« 1000 (Wq t.^t»«!in4[) g.»lliNB pmt hour '^e^tt' 
tdlv^nt ¥Mtiu» M«tUling pltiirtt* for 199^, en «rii«h hs li«< 
ll«tt» 9fei4l $40011, I#«iFlng » )»al^o# ^« 9( %Am%\ %nmt \iy ih«i 
%%rmu of th« written «oritra«t for th« sal« «n4 iuat >Xlatl<»a of 
ih« 4i»tUXing tiX«»t, It r<N^«l»«4 th« ]!»rsfi«rt3r of t^« ooXXor 
UBtiX fttlljr pa.i4 for; thot «t«o« tho i»lont tia4 not boon faXly 
fftktd for, tlto ^%tmn^fm% ««• 4»ititlo<$ to r«ieoT« It fron tho 
1ntiX<$liic« lHAi t)t# ^r^jror of tlto yetition itao thot ho bo pomltto4 
to romovo tito ^iHtnt. Tko oiottor ««o r«f«irr«d to Ui* aak^t^r «ltli 
(ftlrootXono tliot ho siak* U9 o »ei»«rAt(^ roport; lio femord tho OYi- 
4m)oo« »ft<ilo ai> bis roport, found tbe oals of tho plaAt »o» oa 
«1»«olat« ««<! not o eondiitlonol »alo, and roooKm«ndod tnot tlio 
lBt«rroniitg i»«tltlen bo dianlvood. fho a»«tor oirorruX«d dof ct^dact *• 
•%|«etion« to tho ror»ert, th«y w«ro erdor*d to st«nd oo •Ko^ptions, 
ond oin ftrdor «&• «v)torod ovorruling tho oxooptlono, Approving tha 
jno«tor*o Topert, ond tho intartroniad pttltlon oos dlsaklsnod. Oo« 
foadoat «|}|>«aj>«. 

tko r^ttootloa for dooioloa tumo opon tho ooaatruetioc of 



% 



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^-fi* 



.•irV 






tikimJ^ ««»hu4l4»k 









«l<iV* Jul!.' •■• ■ 



4^.irtt«<i A 40 «3^«« 






m^ It^anM^M^t* 



ih* vrlttwn ««iitrA«t for tht purfti>a«« mni •«!« ana ln»tiaiati«« 
•f ih« 41atUling f»l.«urit. ins oontraet i» dftt«4 July 19, 1939, 
1i»tw««ti Laui* A. Al,ti«jrt ^«r hie Ao^iin*** 4««lpi»|«d «» tk« **l^r- 

eh«ti«]r«* «i«a *lni««t S««tt £. €o.* A«ai^ftt«d it* tfet* "Contjrtakctort*, 
And th« si«t«jri«l pMttWi «r« »a folX«««: *7h« l>ttreh»s«r« unii«rt«iic4» 
Ift Ihir«l3ui»« iin4 th« C9Btraotofii undertaJce i« I'ttjnnliiii to tta» -Pur- 
«lx«««rft, o«« Xi^^ {«ine ii)«aii«mi) galAoci 9«r h&\kr *&<»oit* oolrtnt 
V%euu» Difttiilin^ Plant furtu«r 4ie«srl'ied in t^t «btt%«h»<l Iiitt«r 
4»t«A <7u]iy 19, 19^, to ^. I.* A. Albert * ■• * For «•»« i>ttrofcxfto«ro 
soro to |>oy ia« ^OBtraetojre %te oua of f^c^i^.&D • « «' ioXl-voroA ond 
or«et<Ht on PuxoiuAooro * foundatioisio in Puxmrnm^xt* 1»uUiliiig »t 
tiliioo^o, X.Ii«* Xhm» feliew oth«r provioioAo vkioi't hta not 9*rti» 
ncAt li«ro« rho oofitJ'ftot it tigsod, *l*ouio a. Albert; Hmoot Soott 
4 (^, H« Aaotin.* Xiio ooatraet i« os tiro pago of o X<iti«rh«ik4 of 
*Er»«ot Soott 4 Co*** A tfairi p^e^o, ou tii« «at.« loUorii^^A, is 
»ttoo^«4 «»4 oontftino ti»A loll^trleig: *x:oti«i>>to he, Agro<g««^| 

A«oo»^»iiyi»g iott«r of i^mmm:k ^s^ t» ^r,, i^^i^f f, ^.^srii * =* * 

caiioodgQa III , or hio ift'Ottixtoo. ^oooriptioa 'deott i^Xvont VAouiui 
Matillitit^ I'laet lii».Tiii«s o oi^iitoitjr for h«UidXi&K 1.000 sadlojno por 
hour of 4ry oX««i<ors' airty tiolv«at." th«xi follow tbo pjrle« and 
tJ&o t«r)»» of pA^Wit; &#or %hn bottom it i« aignod, *Erfiost Scott 
& ^mitpmiy, d, Auatin..* ^rintoti caiaoo %h* h^tt^m if- tho foIlovlBg; 
*i'ftrtlo^lor oitoiitlon la draws to m* aonditl^ns of ooutraot 
oriAtod on ¥aoM H«ir«of. * iM tfeo hattk of £aia third ^ago wro o 
ttiuateor of prlniod parotfroi^t* mo fourth |»oro«ro$ife^ la, "OTIl&Hmap 
Of a<^J3ft m^:^Lim, A11 ipaamt oad tf^^toflalfl, altlaough dolivorod, « 
oj'o to roKoljo oar proiporty tmtil tho eoetiplota ^i«nt la poid for i£ 
foil, ttnlooa otixoroiao apoololly orra«t4,e4 for la oritiait. * It io 
tblo ikorocraph tlm.% uoimaol for dofendaet oont#ff>d sutkoa tho aalo 
of th« !»la»t a ooBdiltioaal aalo mtA sot aft abaolttto ona. 

daa the ot&or aido, «oiu;aol for eoAji lain ant ooy that tba 



ao. 



•^ifiii.Jk'Mimii ^^. 



3mai-^-»%t»'^ «uii'^ iitf^0.i. 



■4 $0 mi 

■.Hit *•»«»««» />»ittH nuv *«>iir»«<f» 

:u» ii«»ft ;j^?»»Mv: ^pi Alii 



li»^aA«X^M«'s 



thXrA |i»£» ^r Ut« «ert«au«nt, on til* linMiJi •f wh^ian %]^p9%r» pmrtigtm^ 
4 »l»«Y«i ftuotca, i« aot « patjri of tin* GoairA«tt t)&«t t^« •«Nntr*«t 

«iin«ii»t» of i^ui th« fiivt two »ab««s, «(»« is »i|^«4 toy llio 9artl««. 
Xt l« «n •Xeffi«BtiUl i«l« thai iB a«i«tfuiB£ a ««ntra«l, Ui« ««iur>ixig 
• f tk* ooutr«Gt i» to bo fouad 1» tho to]%« at th« «ntiro oontroot 
vhoihor «ritton on eno or iovorta plooffo of ^A|>or, aik! tho 9X^00 

vhoro tko olg»»tujreo s^p^oy i« »«& aiwAjro of oentrelliJig luportanoo. 

By %ht» «QBtra.ot tooforo wo tho 9ttX'eli»soro «eTe«4 to put* 
oMm^oo, »ja<^ tJbo eontraotQjro »^t««4. to ooii &244 InotgULl, » voouuai 
dl«tilii»jK flatlet in i^o prtttxiooo ifi ^lUloii^o. ab4 it providoo t«iot 
it io ^further «lttierllct«« i& tho Atta.0i««4 l<!»ttor, 4at#<i Jiay 19, 
i9S^»* Tim «&ttaehe4 I«itox> io |»ai;o tlir««« oboTO »#«(tio»'»«l, mti tho 
onXy roforoiKOff ici tlio eoiittr«kot to Uiio lfttt«r io t&ot « furtjniox 
408ori]i»tlo» of iko »r®p*r%^ will l>« fou*id ii)i tko lottor. flM 
Aoooripiloii io tJio only tpart of tJ^o lottor tu«kt eaa l>« ooostnteA 
to bo » i»«irt of tl^o oontrAOt, Xhoro io no roforonoo in tho «oa» 
tr«Mtt to tho offoot t^oi the oonditloeii o; tJnko oolo »Ay bo foiin4 
ia tfeo iottwT. »«||o throo, or on tho tocLCJn thoroof . In theoo 
•lrouftOt«n«o« , tlio eemiitioiio i>rifit«dl on tlio b«oic of tho lottor 
iroto not iaoo rporo t«<t in ift»d w%$t« a 9«rt of ih« 0Q»tjr&«t. 

7%io or4or of tl^o Stti^orior oouvt of aouit ooimty ai^pooloA 

frOA io off iSKOd, 



\»- 









'? ) 



38736 



PEGPLi; OF THIS SXATB 0? ILLII^OIS, 
•X rel« OSCAR Hl^SO^ , at Auditor 
of Public Accounte oi" the State 
of Illinois, 



T«, 



IMMSL STAT2 BAMIL. 



VHSKZaL BROTHERS COMPAKY, 

Appellee, 

▼•• 

WILLIAM L. 0*CO^}iiSLL, as Receiver of 

the IkMBIL STATE £Ai!iiL, 

Appellant* 




APPEAL FROM SUP3KI0R 

) COURT OF COOK COUKTY. 
) 



^8 5I.A. 5 83'' 



i4R. JUSTICS O'COixlSOH DELIVERED THE OPIiflOli OF THE COURT. 

The Auditor of Pu'blic Accounts Isrought suit to liquidate 
the Imiael State BariJc and a receiver was appointed, frenzel Brctliert 
Ce, had deposited money in the l)£jaJc hefore it ^^as closed; its claia 
for #4250 was allowed as a preferred claim and the receiver appeals. 

The record discloses that prior to April 30, 19 31, Frenzei 
Bros. Co., which will hereafter be referred to as the claimant, 
had several cheeking aeeounts with the Iffimel State £anJc, one of 
which wae in excess of $5,000, and on April 30, 1931, Joseph 
frenzei of claimaDt company went to the bank to get #5,000 for the 
punaose of deuo siting the money with the Gomraissioner of Public 
Works of Chicago, on a bid. The draft teller of the bank suggested 
that Frenzei take a cashier's Ciieek for the amount. Claimant then 
drew its ciiaek and obtained a casJiier's check for ^5,000, payable 
to the GoKiBiaaioner of Public Works, and the aoount was ciaarged 
against claimant's account* Apparently the cashier's chf>ok was 
deposited with the Oommissioner of Putlic Works of the City, but 
the City hold up the bids and the check, and while It was bning so 
held the bonk, on July 2nd, was closed by the Auditor of Public 
Accounts. Th.' check had not, in the meantime, been paid because 



d£V6€ 



( 



88 5 .A.I 



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8^ 






1 * Ti»«: •j)-xr<w 



II "to 



,ay 



,JaMA€ £TAte JgMMl 



4 YTtOi-rlaflv'U 



I0 n©vx«o«>i B# , 



»«v 



..i MaIJJIW 



ti»ii&ot^ l8sau%^'4 ,)^«i,tnxoarrJ! e«w rs»v'ls»dv a bsia 3Cxi«d d^i^;t'(£ Xeaorl 9At 

,aX«#ocfj8 itdvieo'iT. arfJ hau ailaXo fc«TS9't*T^ « a« brnwallti a«w oaSJ^ ^el 

, _i, ^ b©ii»'t©i sd 7a^'i«»«9ri IXiw sioiiiff ,.08 .ootS 

lo i>no ,*r; 'I ^.tr?*8 Xemml 9iit d;tlw atoaoooA ?5iKiiio»«la X«tc»v»» feiiixi 

xfqsBOt ,_ ,<?^. XiiGEA no fttf ,000,«| I0 «««a«» Ri eaw xloirfw 

iMi^ 10** 000, 8<J *s,. _^ ^-fied »f{J o>.* drttw x'^'in^oo imisiiislo I0 jr»sn»Tl 

oXXrfi/M. 'to isnoieaiB'Me'J ail* Ji*xw Acettoffl an* galti«««»l> 'to »Q0<3Tt»* 

i^«8eaa<Je *«^<*' •^^ **» laXIs* *'tfiife sxiT .bid u no .o^aolrfO 'to aiitW 

oofU *n«inx«XO »^ni;ooe erlcr 10't 2io»/i© a'loiri**© « o::!** X«sh91* ^erfJ- 

• X'iisx;A<7 ,000,5^ 10't Jlo^rto i!*-iaXil««« « fc»iali&*ri« i^a« *Mxto »*i w»nl) 

AdS''^^'^ ««^ ^m/oiae sn* ftiWi .aMioW oiXcf«r^ lo rte n©l sBi«JB»0 »xi* ©* 

•AW io-ilo e'leliieAu »rJJ xi-i^^'^i*-*^*?* .^Ttxuoooa fi'iru»«i«Xo Jeaxjaa* 

;f^- , " - •' - "-^v -jtido<i to tenoitieXMmeO aiU" Ailff fer>*Xaoq»l) 

OS a.:-: rj*<v ,j. ,,., ,iO»xfo «fW / «« •bid »fi* qjw ^Xpii X-tllJ sxlif 

j)lIcJw*L to lo^lfcu*^ ii^ x^cJ fe990Xo »jcw .fifiS iXw^ ac .aineef ©rf^ Mod 

^3, .i.o<| .^■^Utuv^ «il* flX ,^on bail itoar.f) ■ '^^- .''imic^oA 



8 

It had not b«en presented to the hank, l-iovember 27, 19K1, the 
elalmcunt compaay Tiled a general olalm for the amount of the check 
Vhioh was allotred, and ufterward a 15;a dividend was paid. July 24, 
1935, claiUicint filed its petition praying that its claim he al- 
lowed as a preferred claia. The receiver filed ai artswer contest- 
ing claiiaaut'e ri^it, and after hearing an order was entered allow- 
ing the claiBi as a preferred claisi, and the receiver appeals. 

In hi 8 brief eounsel for claimant says, ''Claimant claims 
it is entitled to a preference under tne Act of July 8, 1931; that 
the Act ia remedial and that filing with tne Receiver was a suffi- 
cient oompliance with the 'presented for payment' provision," And 
in support of this contention eoiuisel cites par, ??, sec. 13, chap. 
16a, Illinois State Bar Stats. 1935; McQ.ueen v. Bandallp 353 111. 
231; People ex , rsly Nelson v« Dennhardt . 354 111. 450, In each of 
the two cases just cited certain contentions were made t: at the 
Act (or certain parts of it) was unconstitutional, but the oonten- 
tioDs were overruled and the Aet upheld. The order appealed from 
in the instant case was entered August 1, 1935, and the court ap- 
parently followed the ruling announced hy the Supreme court in the 
two cases eited. But afterward the Supreme court, on December 19, 
1935, held that the Act, in its entirety, was unconstitutional. 
People V. Union Bank & Trust Co. . 362 111, 164. In that case con- 
stitutional questions wei* raised wiiich were not involved in the 
kcau^een and Dennhardl^ cases. 

Since claimant bases its riglit to a preferred claim on the 
provisions of the Act wViich has ceen declared unconstitutional, the 
order appealed froai must be reversed, 

Claimant ie entitled to have its claim allowed only as a 
general creditor. People ex rel. Kelson v. Builfjers A Merchants 
Bank, 264 ill. App. 3B8; People ex rel> kelson v. Lincoln Trust & 
Savings Bank. 279 111. Apn. 13. ~~~ 

The order of the rjuperior court of Cock couifty is reversed, 

ORHBH REVBHiJED. 
llcSurely, P. J., and Matotiett, J., concur. 



•X* iHf ni£Xo set! :tj&.ijr ;j>iii^i}^ aoiiii»q aii b^lj^X iaa^lala ,a€€i 

-I'ftys e as^ lavisodH %sii liiiw ^jctiii'l i«ri.t bets Laib^aBi si .toA »il* 

,XII <5o .V H.g^jt;.^jS)l£ •§«tt't .«^ai« wnS »;fje*e •jiowXXXI ,«eX 

i.o does al . , frfill .^};|>i^imii»^,, .y floaX^/I .^.X.a^'T.x ^ is£ge»^ ; X€2 

H9fl fe?»Xai»(|(ris tsfc-i* eii'T ."-Xatit?* tfoA »fa- tiie bffXijiireva •taw aaoXJ^ 

-q» #Tcoo ^tiA Brae ,ec . ^ ;;ji/j^it Aiet^d^iK- aaw #«iio ias^aui orfc}- r,X 

oi{# ai iJiiiGu aM»iccfWfi »il4 td Aftoitwiwwus ajaXXu-x 9sii hefroLXot Y;X^«e«*Cf 

, ^?I i»cfe»969<I no jJ'aiJco ©fiajcxiitfia »/:« ^'llei'r£«. J'l^ tiM. .l>a*X» a9««c oir* 

.Xl"«oi^iiti:rBarora. i^«v^ .^d^anXo , *©A «ii* ^iul^ ^X»£i ,S£€X 

•4St "- ■• - - - --■ - Tw w ib«»X«tr rt»w ■floJt*«^;i.-r X^rioltir^itfa 

miit nc ciii»X" -■vt . rr-^i/ «,-• r mfr-p.ati timssl^ ... . ,. _ 

m s-9 V. oXXij ioittXo B^ ^' bsloiiu^ ax 



99^9r»- 






.twortofe , .'. .j-l^a/to^AM ifft .. .i/jLo X 



38106 

ROBERT BRUHER, BERHARD HARRISOH, JOHH 
!!• REEDEP., OHARLKS M, BRAUK, ANDREW 
LINSEAR, MIKE PARENTI and ALBEi=lT l)YKA3, 
individually and as represent ??tive a of 
the memDera of POULTRY DRES3ERS UNION 
or OHIGAUO, LOCAL number 158, 

Appellant 8 » 



THOMAS J. OOU?«PNI;Y, State "a Attorney of 
Oook County, JAMES Pi. ALLMAN, Comaissioner 
of Police of the City of Chicago, DAWIEL 
GILBERT, Captain of Police of the City 
of Chicago, PATRICK J. COLLINS, Captain of 
Police of the City of Chicago, 

Appellees* O 




SUPERIOR COURT 



COOK COUNTY. 



I.A. 5 84' 



MR« PRESIDING JUSTICE HALL DELIVERED THE OPINION OF THE COURT, 
On Jsinuary 14th, 1935, complainants filed their bill in 
the Superior Court of Cook County, in which it is charged, among 
other things, that they are members of a certain labor union, and 
that such union is an association of skilled workers, engaged in 
the killing and dressing of certain animals for market; that in 
the month of October, 1934, and at intervals up to December, 13€h, 
1934, the members of this union had a controverpy with their employ- 
ers concerning wages, and that the members of such union, not having 
eooM to an agreement with such employers regarding the rate of wages 
to be paid, on December 13th, 1934, voted to strike, and that there- 
after the members of the union did not report to work at the place 
of business of their respective employers, and that from such last 
mentioned date up to the time of the filing of the bill, the strike 
had remained in progress; that the strike had been conducted in a 
lawful and legal manner; that no threats or intimidations had been 
made, and no force, violence or coercion used in the progress of 
the strike^ that peaceably, and without intimidation, violence, 
force or threats, they attempted to inform the T>ublic through various 



4 



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TPTTOC- 



.TTSTTJOD 3003 






1:0 nl 



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.^oiloi 









ni ijftjji'i^a ,8xsai03? i>©Xi-tai; 



iio 






JISCfttiSK Off if ^^S8I 



dOAlq 9. 

lo aaorq^iq miJ ax i>6«i; col 01 = 



b6Xioi;r^8& 
jx^oaft JO* iUiltirAX 



devloeg that they were on a strike, and among other things, had 
▼ariotia of the memhers of such union parad,« certain sidenalks with 
a banner hearing the motto, "Thia place is unfair to organized 
labor. Poultry Dresaera Union 158 of A. M, 0. & B* W« of N, A., 
A« F. of L^w and that only one person bearing such banner appeared 
in front of any of the places of business of the employers of any 
ef the members of the iinion at any time. It is further alleged 
In the bill that these persons had a perfect legal right to do the 
aote aforementioned, but that notwithstanding sueh rights, Thomas 
J, Courtney, State's Attorney of Cook County, without any warrant 
©f law, maliciously and oaprlcioualy ordered the police of the City 
of Chioago to Arrest eaoh member of the looal to which these people 
belonged, so appearing on the public streets and highways of the 
6ity of Chicago; that in pursuance of the orders of the State's 
Attorney, Patrick J. Collins, Captain of Police of the City of 
Chicago, directed the police officers acting under him to arrest the 
members of the so-oalled Local 158, and that in pursuance of such 
drdeir of the Chief of Police, various members of the union on the 
S9th day of December, 1934, were arrested and taken to the Oes Plalnee 
Street Station, and that after a hearing, they were discharged. It 
is ftirther alleged that at the hearings of auoh cases, no one appear- 
ed against such persona, and that no proof or evidence of any kind 
was offered by the state. It is further charged in the bill that 
at the hearing of such cases. Captain Patrick J» Collins, in command 
of the Des Plaines Street District, stated that he had been ordered 
by the State's Attorney "to arrest all pickets, and to continue 
arresting them as often as they appeared on the streets," and that 
these ordera came frca Daniel Gilbert, a police captain assigned 
to the office of Thomas J. Courtney, State's Attorney, and chief 
investiggtor for the said Thomas J, Courtney, State's Attorney. The 
hearing was had on the bill and affid'^.vits attached. The prayer 



I 

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of tbe bill ia that "a temporary injunction issue, without bond, 
whioh upon a final hearing may be made permanent, restraining said 
defendants, and eaoh of them, their deputies, subordinate police 
officers and patrolmen, and their agents and attorneys, from molest- 
ing, arresting, interfering with and preventing the plaintiffs, and 
eaoh of them, frcMa peaceably and without threats or intimidation 
being upon any public street or thoroughfare in the City of Ohioago, 
adjaoeat to or In front of any place of business of any person with 
whom they are engaged in a labor dispute, and fr(»Bi carrying a 
banner bearing the legend: "This place is unfair to organized labor 
Foultsy Dressers Union 158 of A.M*0, & B. W. of H« A., A.f, of L«<* 

Various affldaTlta are appended to the bill, and they con- 
tain substantially the same averments as are made in the bill itself. 

On January 16th, 1935, upon notice to the defendants, the 
eourt entered an order to the effect that "Thomas J» Courtney, 
State* s Attorney of Cook County, James P. Allman, Commissioner of 
Polloe of the City of Chioago, Ogjilel Gilbert, Captain of Police of 
the City of Chicago, Patrick J, Collins, Captain of Polloe of the 
Olty of Chicago, and eaoh of them, their deputies, subordinate police 
officers and patrolmen, their attorneys and agents do absolutely 
desist and refrain from molesting, arresting and interfering with 
and prc-rentlng the plaintiffs in this suit, and each of them, from 
peaceably, and without threats or intimidation, being upon any 
public street or thcroog^fare or highway in the City of Chicago, 
adjacent to, or in front of any place of business of any person with 
whoa they are engaged in a labor dispute, and froa carrying a banner 
bearing the legend: *This place is unfair to organized labor. 
Poultry Dressers Union 158 of A.M. 0« & B.W, of N. A., A.F.I.,*, 
proTlded, however, that only one such person or picket shall display 
such banner at the sr-me time before such place of business, and 
provided, further, that said person or picket is violating no law 



t 

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4 

of the State of Illinois, or any ordinanoe of the Oity of Chioago, 

until the further order of the oourte* This order was issued 

without bond* 

Although V\e record does iiot show that an answer was filed 

"by the defendants, «or that the cause was referred to a master in 

chancery, the court on January 18th, 1935, entered an order to the 

effect that a reference theretofore made, toe vacated, that leave 

be given to the defendants to withdraw their answer, and that a 

motion to vacate the order for temporary injunction theretofore 

entered, be set down for a hearing <Ma January 19th, 1935, On 

was 
January 19th, 1935, after a hearing/ had apparently on the bill and 

affidavits alone, the court entered an order to the effect that the 

temporary injunction theretofore granted, be set aside and vacated, 

and the bill dismissed for want of equity. It is from this last 

order that the appeal herein la tai:en# 

There is no showing that Captain Patrick J. Oollins, or 

anyone in authority, had indicated by act or deed that he or they 

Intended to act upon the alleged orders of the State's Attorney, and 

It is shown that all the persons arrested had been discharged after 

a hearing by the court, and before the bill was filed. If these 

people were illegally arrested, it is possible that they might have 

an action at law against the persons causing such illegal arrest, 

but there is nothing in the bill n^ich indicates their right to an 

ordey for an injunction against these defendants for acts already 

committed. There is not the slightest suggestion that any of the 

defendants had indicated by any act or word that further arrests 

were intended, other tnan the language charged to have been used 

by Oaptain Patrick J. Oollins in the court ro(»i, where he is alleged 

to have stated that he had tteen directed by the State's Attorney 

to arrest all pickets, and to continue arresting them as often as 

they appeared on the streets. It is further to be noted that there 



•Ixrtotf i^sroiftJhr 

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i 

is no ahowlng made tliat ^fter their discharge the defendants had any 
reason to fear that heoauee of aiiy act or threat of any defendant, 
fxirther arrests would be made. 

In Lowenthal v, New Muslo Hall Oo*. 100 111, App, 374, this 
eourt said: 

«It is said by our Supreme Oourt, in Menard v . Hood. 
68 111* 131: 'In our practice the writ of injunction is 
only called into use to afford preventive relief. It is 
never employed to give affinaatlve relief, or to oorreot 
wrongs and injuries already perpetrated, or to restore 
parties to rights of which they have been depPlT«d*' 

And this doctrine was approved in Baxter /» Board of 
'l^yade. 85 111. 146, ^jCjrhere it was charged that a person 
had been Illegally deprived of his membership in the Chicago 
Bo??jrd of TradeXJ where it is said; 'If a party has been 
excluded from the rights and privileges of a corporation 
by the action of the corporation, he ought not to be restor- 
ed until it has been determined that the sot of expulsion by 
the corporation was illegal; and yet, if the remedy was by 
injunction, as is claimed here, the effect would be to re- 
store the party in the first instance, evan though he may have 
been lega-lly expelled, and leave the determination of the 
legality of the act to be determined in the future. We do 
not understand resort can be had to the syrit of injunction, 
cither directly or indirectly, to obtain affirmative relief. » 

^^ Wangelin v# (^oe, 50 111, 463, it was held: An injunc- 
tion is a preventive remedy. It comes between the complainant 
and the injury he fears or seeks to avoid. If the injixry 
be already done, the writ can have no operation, for it can not 
be applied correctively so as to remove it. fhat was held in 
a case where the owner of a mill, claiming to have been 
forcibly and illegally put out of possession, filed a bill for 
an ijijunction to restrain the defendants from interfering with 
his resuming possession, as is here done. 'The deed was done, 
and there remained nothing on which the writ of injunction 
could operate.' The case of Fisher v. Board of Trade. 80 111, 
85, is to the same effect, and what is there said in relation 
to the relief claimed because of irreparable injury resulting 
from loss of profits is applicable here. Other cases to the 
same effect: LaJce Shore & M« S. Hy. pp . v. favlor. 134 lU. 603; 
Oofflaisgioners of Highways v. Deboe, 43 111, 'App, 25; World' s 
Oolumbian Sxposition v. Brennan. 51 111. App, 138; Mead v, 
Oleland. 63 111. App. 394; qpff v, Sotert. 65 111. App, 616, «• 

See also i^enard v. Hood. 68 111, 121, 

The deoree of the Superior Oourt is affirmed, 

AFFIRMED, 

HKBEL, J, AH0 DEHIS E. SULLIVAN, J. OONOUR, 












►'.S^ ► 



• ■•■-^4. w- 






» 



38130 

JS33E W. RITTKH, ) APPEAL 

Appall ee^ 




GlROpHf OOI^gL^' 



OITT OF CHICAGO, a Uunioipal 
Corporation, ) COOK OODHTY, 



Appellant* 



285I.A. 58# 



MR. PRESIDINCJ JUSTICE HALL DELIVERED THE OPINION OF THl COURT. 

Thia is an appeal froia a ;)udgmeQt of the Clrouit Court of 
Cook County against defendant for the sua of |6,000«00, entered in 
a suit brought by plaintiff against the defendant upon a charge 
that plaintiff was injured through defendant's negligence. Trial 
was had before a jury, which returned a verdiet for the amount of 
the judgment* 

The charge in the declaration filed in the cause is sub- 
stantially, that defendant, a municipal corporation, waa, on the 10th 
day of June, 1929, possessed of and had superricion over a certain 
public street, known as Clark Street, at or near its intersection 
with a certain other public street, known as Lincoln Street, in the 
City of Chicago, county of Cook, and state of Illinois, and that the 
defendant ima bound to use reasonable care to keep end maintain the 
street in a reasonably s-^fe condition for trarel; that, disregarding 
its duty in that behalf, defendant negligently suffered the street 
at the place raentioned to be, and continue to be^ in an iinsafe and 
dangerous condition for travel, because of certain holes and 
depressions in the street, and that the same had existed for a suffic- 
ient length of tiae for the defendant to know, or by the exercise of 
ordinary care, to ascertain such condition. It is alleged that plain- 
tiff, while riding in a taxioab upon Clark Street, at or near its 
intersection of Lincoln Street, was unavoidably thrown about in the 
cab, by reason of the oab's coming in contact with the holes in the 



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1 

street, and that as a result, plaintiff was seriously injured. It 

is alleged that prior to the filing of the praecipe in the cause, 

and on November 7th, 1939, the plaintiff caused the following notice 

to "be served upon the defendant: 

"To: The City of Ghioago, a municipal corporation, 
William D, Saltiel, City Attorney, and 
Patrick Sheridan Smith, City Olerk* 

Gentlemen i 

Tou and each of you are hereby notified that our client, 
9r« Jesse Vh Ritter, was injured on the lOtb day of June, 
1939, at the hour of about 8:30 o'oloclc A. M., when, while 
riding in a taxioab of the Yellow Cab Company, a corporation, 
upon and along North Clark Street, in the City of Chicago, 
at or near the intersection of Lincoln Street with said Olark 
Street, said taxicab was caused to and did, run into a certain 
hole in the street, thereby seriously injuring the said Dr. 
Jesse W. Ritter, 

or. Ritter was taken home and treated by Dr. 0, W. K. 
Brl^s, whose address is 1524 Thorndale Avenue, and there- 
after as the injuries by him received became more severe. 
Dr. Flitter was treated by Dr. Howard R. Chislett, whose address 
la 4721 Greenwood Avenue* 

At the time of the injuries in question Dr. Ritter 
resided at 3329^ Commonwealth Avenue, in the City of Chicago, 
where he still resides, 

(Signed by Olark and Olark, attorneys for Dr. Jesse W. 
Ritter. Kotioe served November 7, 1939.;» 

Plaintiff testified in substance that he is a dentist, and 

that his office is located at 16 Horth Wabash Avenue; that he lives 

at 3329|- Commonwealth Avenue; that on June 10th, 1939, at about 

8:30 o'clock in the morning, he took a Yellow cab, instructing the 

driver to take him to 16 North Wabash Avenue; thst the driver went 

to Belden Avenue, and then east to Lincoln Park 'est, and that he 

was taken directly into Olark Street; that suddenly he had a terrible 

jolt; thsut his head struck the dome light in the top of the cab, and 

that after this, he was groggy and suffered a good deal of pain in 

his head, neck, shoulders and back; that there was a numbness in 

his feet and toes; that there was pain in the lower part of his 

stomach, and that he was bruised in the lower abdominal region; that 



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he was afterwards operated for hernia; that slnoe the accident, he 
has an impairment of hearing in his left ear; that he misses things 
in talking over the telephone; that the condition of his ear prior 
to the accident was perfect; that his prior earnings were someiaitng 
in the neighborhood of |lflOO«00 per month. On cross-examination, 
plaintiff testified that in 1908 he had an operation for appendeo- 
tOffiy# It was stipulated that plaintiff was paid |1, 000,00 Toy the 
Tellow Gab Gompany, and that he entered into an agreement with that 
company not to sue* 

7he defendant offered no testimony as to the condition of 
the street, nor as to the accident in question. It is claimed hy 
defendant, however, that certain physical conditions of plaintiff, 
claimed to hare resulted from the accident, had existed prior thereto^ 
tt.M that there is no causal connection between such condition and 
the accident. It is also claimed that plaintiff failed to serve 
notiee upon the defendant of the time and plaoe of the accident, 
as required by law. 

Upon the question as to the extent of plaintiff's injuries, 
Br» Clement W, Briggs, a witness for plaintiff, testified in sub- 
stance that he was a phjpsician and surgeon; that he examined the 
plaintiff on June 10th, 1929, and made a complete physical examina- 
tion; that ha found a contusion on the head with the beginning 
formation of a hematoma, which means a blood tumor, the aoctimtQ-ation 
©f blood over the scalp; that he found evidenoe of marked rigidity, 
inability to move the head and cervical vertebra; that there was 
evidenoe of tension, pain, involvement of the intercostal nerve on 
the right aide of the chest, discoloration, and swelling in the lower 
abdominal zone; that he found an inguinal hernia, which means rupture; 
that he ordered ice bags to the head and heat to the lower abdominal 
xoae; that he treated the plaintiff for about two months; that he 



f 

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4 

adTlsed him to wftsr a truss, or be operated on for hernia; that one 
Dr. OhisXctt operated on the plaintiff; that the witness was 
familiar with the fair and reasonable charge for Dr. Ohisslett'a 
serTioes, which would be from #150*00 to $200.00* This witness 
further testified to the effeot that on examining plaintiff ebout 
a month prior to the trial, he found that the hernia was perfectly 
clear and healed, and that the sear tissues had perfectly covered 
the aperture, and that so far as his examination, revealed that 
plaintiff had no hernia prior to the accident. This latter state- 
BAnt was brought out by a question propounded by defendant's counsel, 

Fred M* Miller, a physician produced by defendant, testi- 
fied that he had specialized in traumatic surgery si»oe 1933, and 
that about August 14th, 1929, he ezsuained the plaintiff at the 
Chicago Memorial Hospital at 33rd and Lake Park Avenue; that at that 
time a Dr. Ohislett was operating on the plaintiff for inguinal 
hernia, left side, and that at that time, there was a protrusion 
about the size of a large egg* Doctor Miller testified that in his 
©pinion, the hernia was of long standing, probably a year's duration, 
because of the length of the sae, the peritoneum, on account of the 
thlekness of the sao, and the adhesions about the sac. Dr. Miller 
further testified that "hernias are never brought about suddenly in 
the inguinal region"* 

Dr. Frank 3ohrem, another physician produced by defendant, 
testified that he examined the plaintiff the latter p^rt of J\ine, 
1929, and that he found no evidence of external injury; that at 
that time the plaintiff told the witness that he had been riding in 
a Yellow cab on Clark street; that the plaintiff told the witness 
at the time of the examination that the hernia condition was of 15 
years standing; that he found a reducible inguinal hernia about the 
alse of a good sixed hen»a egg, and thst it vbb easily reducible; 
that in the ooinion of the witness, the hernia predated the time of 



♦ 

Uenxroo a'tnB6a3lsJb yd" ijftJaxusfoqo^q aoi*wt»p js "^d tsso tA'swotti e^w *«»« 

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5 

the alleged Injury. He stated that he made the examination for the 

Aaployers Life Insurance Corporation* 

A witness produced by plaintiff testified to the effect 

that he wae familiar with the condition of the pavement in the 

neighborhood of 1830 North Olark Street, opposite the entrance to 

in 
a hotel at that point; that there was an opening/the stteet at this 

point; that the surface had not been put on, and that there was no 

concrete on it> it was an open hole filled with loose gravel and 

rook; that the cut in the street which he described was from ^ to 

5 feet wide; that that was the condition in November. This witness 

testified that the hole described was from 60 to 70 feet from the 

intersection of Lincoln Avenue and Clark Street* 

The driver of the cab in question testified that in J\ine, 
1939, he was employed by the Yellow Cab Company; that on June 10th, 
1929, at about 8:15 in the morning, plaintiff became a passenger in 
his cab; that going south on Clark Street they came to the front 
of the Lincoln Hotel, which is at the intersection of Lincoln svenue. 
Wells and Clark street; that there were mud puddles there, and what 
appeared- to be a mud puddle, proved to be a hole in the street; that 
the front end of the cab dropped down on the right side into this 
hole; that the chasis of the car i;rent all the way down to the axle 
and bounced up again. This witness testified that he looked back 
and the doctor was on the floorboard; that the witness got up and 
went around to the back and helped Dr. Hitter up. He was half 
conscious, couldn't talk for a few minutes, was in a kind of a darej 
that Dr# Ritter was not able to walk straight when the witness got 
him back to his home, he seemed limp, and he had to help him upstairs; 
that at the time of the accident, he was not traveling o^er 20 miles 
an hour, because traffic ahead of himj. that the depression referred 
to was filled with half mud and water. 

Plaintiff offered in evidence the original of the notice 

X3EX I 



mit 10 



i 









i:yaje IsvsT-i 



.1 



'«i« "/ A i . «» 



cf»©iro?i u. 



eld:" Oi.. ^ii?;: ' 



."JAyOtiJ., 



Toaoo 

< . ■ - ^- 



: I59'^v:>>.|ai© t?j--,w Off ^eSGI 

"A9W 

J.Xf 6i1o .3.^ irwoi- Y.^w tii& Xii? *ia9"3? ISO 3ii;f -o ^.tu^iio 9x1* tf^itrt- ;oXoil 
JoKof bdltooX eri *^^ Jbomtao:^ eeext^iv- bWT .aia^G ';>..' t-^oawocf bae 

^X*u? . . xu i^eql . .K/o'i;^ #«•» 

♦<2»* '-MBJ tlRA Aitm b9iLi\ 8.0W o* 



i 

set forth in the declaration, which it ia alleged, was served upon 

the defendant, and that in addition to the portion pleaded, it 

oontaina the following: 

"Received a copy of the above notice thie 7th day of 
Hoveaber, 1929* 

William 0. Saltiel, by H. &• 

City Attorney 
Patrick Sheridan Smith 
City Clerk" 

As stated, defendant contends that the required statutory 
notice was not served on the city of Chicago. The receipt on the 
bottom of the original notice recSived in evidence indicates that 
the notice was served on the City Attorney and oa the City Clerk. 
Further, in the trial and on the cross— examination of the plaintiff, 
the attorney for the defendant asked the plaintiff to describe the 
approximate size of the hole into which it was alleged the cab wheels 
dropped, causing the alleged injury, to which objection was made by 
counsel for plaintiff, and in reply to this objection, counsel for 
the city stated: »I have & right to go into that for this reason, 
this witness has served notice to the city." Neither in the trial, 
nor in the motion for a new trial, was there any question raised as 
to whetl^r or not the defendant had been served with the required 
notice, and the question is raised for the first time on this appeal. 
The oontention is entirely without merit. 

Zt is next insisted that there is no proof that the 
accident happened in the city of Chicago and the state of Illinois. 
Z& the additional abstract filed by the plaintiff, it is shown 
that plaintiff testified that "Clark Street is the place where the 
accident happened. It is one of the public streets of the city of 
Chicago." This testimony of plaintiff is not mentioned in defend- 
ant's abstract. The court will take judicial notice of the f?ct 
that the City of Chicago is in the County of Cook, and state of 
Illinois. 

Defendant's counsel insist that there is a variance be- 



M 

lo XfUb £ft? nidi aoi^Ton avocfjB ari^ 1o jpoo « i«JTi©©«ig" 



^ . — ^ - - . soi^efliiaaE^-iiseo'xo ©jf# ao fcan X-eixl- arf^ at ^if^titXMfi 

. <,..^-.. , HO I tost do «i:^^- ■'" ">:lq9t aJ. 2)iasi ^Vtitut^Iq lot Xoi^m»»o 

, ...;^. 'ss 8XiS:f lol ;f£!iij etal -.,.. ififsi:* i^ sv^ I* :^9iAtt, x^Xo 8rf# 

iT;^ 9iit flX ^94i*X«m ".'t*- ""'^ e^ 0©X;*^oK Asrfee «jR£f a«efi:^X« BtAi 

,^.. A ._ aejt^r^eifp Yis« arsiic <..-« ^XaXiS" wan • ""~' r-'t-- '- -- " • -on 

. ixc- ,) ..v/ii^; i-.* ^X^tX^fr* pX aoit««tf-aca ^ifl| 

,•{ :.i ' ■•''■' ■; ■'t.Ais 9i''. n.- 3;^j?i©XrfD 'io !^ti~ " '' ' •" '" ' "ii >._v;.\<i\ j-.(i»i-„ou,f; 

;Xo »fii lo Q#©5ijR! DiXonrq $d^ ^o »ar , '. >«acr<?sj:? *««bXooJ 

~i>xi3t»i; ai b&S(oL:tn9m tea aX "Hi^-aXsXq t<> \nt-£\i:u'i^ «XilT ".ogiioiriO 

;f:v. o atti^oa IeX9X£>irt 9Jt«r.dr iXiw iruQ*^ adT «tt>£a;f«cfjij 8»*«;» 

lo ni^ik. £icjt «iooO lo x*^iJ«>5> «if* ai si o;^«oXriO "id ?*X0 edj^ *j?rf* 

«tlonXXXI 



f 

tween the notice served on the oity, and the proof as to the place 
of the accident* It will he noted that the notice served tells 
that the accident happened at the intersection of Lincoln Street 
and Clark Street » and the proof is that it happened at Lincoln Aventui 
and Olark Street, in the oify of Chicago, During the trial, no 
question was raised aa to the place of the accident. Counsel for 
defendant, throughout the trial, as shown by the record, proceeded 
upon the theory that the accident happened at or near the inter- 
section of Lincoln Avenue and Clark Street, In the city of Chicago* 
No question was ralal4 as to this matter either on the motion for 
a new trial, or on the motion in arrest of judgment. It is 
presented for the first time here. 

In Graham v. City of Chicago. 346 111, 638, there was 
aa objection made that the plaintiff should not have been allowed 
to reoover because there was no proof that plaintiff was ever 
attended by the physician named in the notice* There was also no 
proof offered by the defendant in that case that this physician 
waa not the attending physician, and no objection was raised on 
%h9 triiCL on the question, and the oourt said: 

"There was no mention made of the objection now raised, 
either in the motion for a directed verdict, in the motion 
for a new trial, in the motion in arrest of judgment or in 
the assignments of error* It is too late for that objection 
to be made at this time, Pickett v, Kuohan. 333 111, 138; 
Hlc;hway Oomrs. v. City of Bloominaton. 353 id, 164; Tucker v, 
punoan. 324 id* 453; Chicago Burlington and Ouinoy Railroad Co. 
T« Diokaon, 143 id* 368* <• 

We think the contention of counsel for defendant as to the notice, 

is entirely without merit* 

Objeotion is made by defendant to the giving and refusing 

of various instructions* We have carefully examined all the 

instructions, both given and refused* We are of the opinion that 

the jttjy was fully and fairly instructed^, 



3 
T 

■ ■ :iaBi>iv( ■' i aoqu 

sirij o^r ■. .?•'■:. ..: ttwiBap 0% 

,&a:«n 9miS tmii »ri* toi be*^n»B9Tq 
s>:>.7 Stearic «SC& .1X1 a*5 ,mi.i-^idO 1& •s:»-tO .v lagiia-iP nl 
fc^woXXji aftscf ftv.£^ri J©n fcXiroife -iXq »xf.t -r.sB noltde^^o as 

oil o&l'. ' -."• ,■■.,-:: 'asifJe 

ci3ttilBX^''~i airf* #.»«»# »«JBO <fa£t* rax tii5©n»1:9i) exii* x*^ ix^TSfic lootq, 

no b9Blx\ i«jBtF n©i*o0^d<) oa Jbas ,asioifiX^<? gnii'ne.tts srfJ ton axiw 

:bijsa ;tiwos) «f!^ basi ^aolts^up odd" no Xeii* tdt 

t noi^osjdo ftcft "to »ib.sffi aoitii&in on »,«w oraerfT" 






i 

TherB appesTB to be some contrariety of opinion as to 
whether or not the hernia for which plaintiff was operated, was 
a result of the accident in question. The evidence shows that 
after plaintiff's operation, this afflioition, even if it resulted 
from the accident, was entirely removed^ In view of this fact, 
we can arrive at no oth«r conclusion than that the verdict and 
Judgment entered thereon, are excessive. The judgment will, there- 
fere, be affirmed, upon the condition, however, that plaintiff 
remits the sum of $3,000«00 therefr^a« Otherwise, the cause is 
reversed and remanded* 

JUDGMSMT AFFIRMSD OH REMITTITUR OP |3,000,00, 

HEB£L, J, AHO DEHI3 E. SULLI7A1!, J. OONOUH, 



-•T9fi*,iljp» !j-ae»?^ut edV »«»Ti»»9©x«> t^* ^iXO»T34^ M^r^i^xi© #fc«aijifc«t 
ei 9Bir«o dcttf' 4»»JhJT«if*0 ,«eit»rttii3* 00«OG0t<i<j' !♦> J3ii«9 eri* e^loe'i 



38304 

THE FIRST NATIONAL BANK OF CHIOAOO, 
et altf 

Appellees, 



T» 





apkal frc 

oihouit court 



AMAKDUS N. AMDER30N and MAMIE E. ) COOK OOUKTY. 

AHDERSOK, et al., ) x 

appellant.. 5 28 5 I. A. 5 84 

MR, PRESIDING JUSTICE HALL DELIVEI^D THE OPINIOK OF THE COURT. 
As shown by the notice of appeal filed in the Oiroult Court 
of Cook Ooxmty, defendants are appealing from three orders of that 
Oourt, entered in a foreclosure proceeding* The first two were 
entered on June 27th, 1934, The first of the two, ordered the 
second amended answer of Amandus H« Anderson and Mamie 2, Anderson, 
his wif* - defendants in the cause - stricken from the files. The 
second is a decree of foreclosure. The last of the threp, is an 
ord«r approving the master" s report of sale and distribution, and 
was entered December 31st, 1934, The alleged error of the Circuit 
Court in entering the last two orders, is predicated upon the 
alleged ejror in striking the second amended joint answer of the 
defendants. Defendants insist that the motion to strike is in the 
nature of a demurrer to the bill, and, therefore, admits that all the 
facts well pleaded therein are true* 

The bill to foreclose filed in this cause alleges the making 
of a note for |30, 000,00, payable in gold coin, by defendants, the 
giving of a trust deed by them to secure payment of the note, and 
certain defaults, which, under ordinary circumstances, would entitle 
the plaintiffs to the relief prayed. While the answer filed denies 
the allegation in the bill, upon which the action is predicated, 
there is no contention ma.de here that the makers had not defaulted 
in the payment of the note, and in the covenants contained in the 
trust deedi* 



4 a©«Xi»<-:iCiA 



THUOO Titles 10 






9d* Sarrafno ^o^j' S£{* lo i-firtci' '"^ , 1^561 t^^^ QmJfUt flo beio^-ne 

efioeT:ef'n->' A siaeM Jbn/; «©arE9ibflA »h gax^njsmA lo fewaa* i>©fcns£;.B fcrrooss 

Qiil •salxl »d* aoTcl aeiali^d - 99as9 ftd* iii arf'flfiJbHOlaJb - «>liw ai/1 

fl.6 oi t^aitrijT sriif ^o jTasX •rlT .9ii/8oXo©iot lo oMOdfc js si fuxooss 

Ijna ^floitirdiiteitJ Iits »ift« lo ^^oqsu B»i»#iusoi »rf* gaivoiqqjB x9tno 

Silt aocftf £)«ti?oil>»^q ei <»t:9Mo ow^ ihasX orft gclis^fia ni #t«oO 

sil* lo i^vaaB taiQi h«ba9W£ lu»90da »«■(* ■gaMl'^.iB ai Toirfa fiogaiXji 

•if* rti ei saiata o* aoitom •*[* *sii* ^aiacX a^fn/siJuslaG »8;tff-&f)fl©l8b 

9di Liz ifidi htlakR ^nio\9it>sli ^bsm ^XXirf ^^i otf icsTit/iaaJb & lo azx/^an 

•ajn# 0!£« ni»n:9<ftf JE>aMaXq XXvtr atcuit 
al:ffl» orf* e&8sXXi5 sei/po airl:f ni fe»Xll ©aoXoaTol o* XXitf ariT 

arf* ,e.tachn9lei) x^ ««ioo bXog at •l€Ry[.Bq, ,00.000,0!^^ lol ©tfoxt « lo 

fm" »a#on 9rii^ lo *na»Y**<? »Ti/odB o* aari* ycf feasfi taxni- « 1« SHivis 

aX#i;^n9 bLuov ^aeoflfA^aauyO'ilo x^Bflii>xo la&ni; ^doirfw ,«*Xi;^.l»l:i al«*«eo 

»alfl*»Jb fiaXi? Te»wBfl-«; 9tf:f eilrff •fc^xs^^ lalXc*'!: 9tit oi elll^niaXq ari* 

^b9i no IbBtc^ ai noitox*. art* rioidw actqu xLLlti «>xl* «i nolti»S»XXfi BsLt 

^»*Xwslab *on b/^rf atsa'^ya ^a^i tnAt atotf oi)«B aoi^na^iioo oa ai aiaril^ 

8rf;f ni b^niniaoo utaennrQo utii ni ba:? ^dioa Bsit lo ta^MSXB^ ^^ a^ 



s 

The amended answer vhioh iras strioken sets forth that 
the First National Bank of Chicago, together with the Foreaan Trust 
and Savixigs Bank of Ohloago, and divers other banking corporations 
and others conspiring together to wrong and injure defendants in 
the premises, agreed aaong themselves to create an artificial demand 
for gold; that gold is the only commodity from which gold coin can 
be manufactured; that said conspirators proceeded to and did by 
divers means cause to be created vast quantities of promissory notes, 
evidences of indebtedness and other oommeroial paper calling for 
the delivery of gold coin of the United States of the then present 
standard of weight and fineness; that Iqr virtue of the creation of sue) 
vast quantities ef said pr(»sissory notes, evidences of indebtedness 
and other commercial paper calling for delivery of gold coin, a 
great demand was created therefor, resulting in a scarcity of, and 
increasing the price of, said caomodity, to-wit: gold; that said 
conspirators fully intended the price of said commodity to increase 
to such an extent as to render impossible the performance of said 
contracts as evidenced by said promissory notes, evidences of indebt- 
edness anS other commercial paper, and as a result thereof, intended 

to and have brought this complaint to confiscate the security taken 

that 

from these defendants;^/ the said indebtedness arose out of a loan of 
|20, 000*00 to defendant from the foreman Trust & Savings Bank of 
Chicago, who in return executed said notes and trust deed; that said 
bank was conducting in the State of Illinois the business of buying, 
selling, supplying in trade, gold coin used and in use in the United 
States of America, as a necessary commodity for a price; that said 
premises were then of a market value of #40,000,00; that said bank 
was then a member of a secret conspiracy and agreement with complain- 
ant. First National Bank of Chicago, and other banking corporations 
and individuals, by which it was agreed that certain restrictions 



tBiit rlirot s^ea a9:iolif Mm if«l«v lammm JJillMa tit 

a.^o aico fclog xfolifw ttor^ Y^i&osanoo ^Xii© »d* eti I) log ^fsffj^ ;tXo3 lol 
iB«#9£c tTEOGaiJsoiq lo s©i;*iS"fl^.tfp t8/'V b9tiz9ro &<i ©t esi/eo Baa»«B »i»vib 

^ ioo JbXo^ lo YT®vi-. yxill^o T©a«q IploissiKflM?© tsrito ba& 

tUB ,lo x*-^»i«' ::^iJIi* , hamn^b ^«©ita 

bJtea i^J^iftf ;bXo3 ;tJ:ti-o^ »Y*x.bo«ssc' c ^intjte.^saoixl 

bjt«i lo eoaf^ffliolisq ®dt alo'iaaocfai i9baBr o& e.fi ;>ae o;/8 o;f 

"idfibal lo aeonei-i^T© ^ssotoa y-roRaJtr oasfciv ^ '^i*noo 

uuo ©80t:b 88©flJb«*cf»i)fii bi.sB ®fi* \V8#iij8fci«©ldij ©eari;)- asoal 

lo in«e asctiTce 4 ^buttT jfusojftitc OO^OOOtOSl 

Ai.«8 ^sif* \b99b ieu- }^tsjvi^x^ atist' ^y^BOtdO 

t^lXUfS lo aea/xlBJid ©ri* aiOflilXI lo 9*^**8 &tit at Ti^aUnubaoo ee-w ^tuad 

M>tinn ©rt;^ ni ^eu ffi ftcTR b«ai; nlcv , .fiyXqqwa tS^iXXaa 

Jbi^e ;tRrf* \sox': .ibo^woo y7«e8©oox' , 9ffiA lo BBi»tB 

iai'=;o '.jtua *^«f* jOO •000,0-: i^di en:©w a©8X«©irq 

-jBXBXqiBOO rf*Xw *n©«»©t:BB Jbn lactawK A M»dt umw 

srroii-^aoqioo ^ixl^sd irfrid.. ,. —oiffO lo :^n»?.g Uttoiie^ t^m ^taz 

BacitoX^tB*r aUireo tf^dt b&si;, oWw ^rcf tsiai/ijlvifoni fca* 



f 

lA the purchase and sale of gold ooln would be ohserred by said 
baziks designed to bring about limitation of quantity of gold ooin 
sold in the United States and Illinois to depress value of real 
assets upon which contract for delivery of gold coin, held by said 
banlcsy were secured and obtain ownership of real assets for banks 
through foreclosure at an extremely small outlay of gold coin on 
the part of said banks; that said banks agreed that after restricting 
sale of gold coin and causing artificial scarcity of oemmodity to 
bring about defaults in performances of contracts, no further 
contracts, extensions or renewals, calling for delivery of gold ooini 
the performance of whioh are to be secured by liens of mortgj'ges on 
real property, would be consummated by s?»id banks^ that "on, to-wit: 
January, 1932," said banks, including the complainant. First National 
Bank of Chicago, pursuant to conspiracy, believing default in payment 
generally prevalent as to amount of prsctioal destruction of realty 
values and presenting opportunity for gaining huge profits, placed 
said plan in operation by unifoiraly refusing to extend, make or 
renew said contracts and proceeded to foreclose existing liens and 
mortgages; th t said conspirators controlled the bulk of gold coin in 
use in the United States; that Hy virtue thereof they and the First 
Rational Bank of Chicago rendered it impossible for defendants to 
finance, liquidate or secure gold coin to fulfill contract of obliga- 
tion alleged in the bill of complaint; that s^id actions and con- 
spiracy are in direct violation of an Aot of the State of Illinoie 
entitled: "An Aot to provide for the Punishment of Persons, Co- 
partnerships or Corporations forming pools, trusts and combines, and 
mode of procedure and irules of evidence in such cases," laws of 
Illinois 1891, page 204, and under and by virtue of said act, particu- 
larly Section 6, that these defendants are not liable to the complain- 
ant for the matters alleged in complainant's bill of complaint; that 



1 

ao pss.^p.^-Toin lo aneiX ^cf bsTi/osB ecf o* sis rfoijfw to &©fl«RTo'iT£>q ©ilif 

iasmx^q ai iiuptsb gi^iry&ilecr ^x^^^'ita^rfof-.' err jh^r.VETut ^oSjfvOJtxfO to iaufi 
^ ... -., »s*l^olq -„--- -,::-..-,, .— .. \. : istut toistoo sfii*isae9Tq l)fle s^yXisY 

,1.,. i.ito^ bXos to afXi/o' «rfif b&llo^tnco eiotf-AaJt^fix;.. .. - - - ; , ,,'*io« 

intiX »ri? Mfl Y©£f;|- to*T8d* &.uti:lv ^^ sfBlft i»&*.«d-e Jbad-JtflU -jd* ill sex; 

o* etaRt)a9'i:»b tol: sXefiaioqiii *i b^TsbixstT o^jssiift) to :toj?f:i X«nol*«W 

riottiilt to S!^«*8 »rf;t ..., -; • a» to /xoi*.cIoiv o-os-r- . ..^ :,1jp Y»^'xi<l» 

-'^O ,eno8t9q to tatmUflRuH sriJ wt ^Jblro'xq o^ *oa fjA« :f>*Xtl#n» 

, n'flicfttor bciB siTeuitf ,*Xooq grtiffiiot EfloiitKtoqioO lo ^Himi9atre^ 

■ o mr?X •♦»8»i3','o rfoxre ak aon»£lv«i t© ««iXfn brrw .■9>'d.hs».onT. to sfxjm 

i«»l*ti?q ttos hlKB to ew^rrJfv y^ ^fi'^ rrebnj/ brt* ,K)! . ^^^i. .J: on XXII 

«ij?X^ttOo orft ot •X«f«iX *o« e^^ 8*frRjbfl«t»b »8«rf* *s/frf ,a coiJo^e yX**X 

#r,il;r ;i^nJfcaiqao» 1© Hid e » *'«.«x?ifiXe«fOd xxi 1>»s«XIr 9it9tiim ©d^ ttot ^aa 



4 

on or al>out, to-wit: 30th day of March, 1938, said Foreman Trust 
and Savings Bank was a moaber of aald secret oonsplraoy tinder iirhioh 
it agreed with complainant and others to regiilate and fix price of 
gold coin according to progress of subsequent events to secure for 
said conspirators and irelf, highest possible profits; that on or 
about, to-wlt: January 38th, 1938, to regulate prloe of gold coin, 
said banks entered Into a secret pool to fix amount of gold coin sold 
in the United States and Illinois; that on or about March 20th, 1938, 
pursuant to said plan, said Foreman Trust & Savings Bank entered Into 
a contract with these defendants, who, without knowledge of said 
pIaA» agreed to deliver to said bank $30,000*00 In said gold coin 
as evidenced by contract exhibited in bill of complaint, and, in 
addition, to deliver to said bank |5, 500*00 in gold coin as set 
forth in said bill; said bank, pursuing said conspiracy, required 
defendants to execute and deliver said mortgage; that said Foreman 
Bankp throtigh said conspiracy, and the control of said gold coin, was 
aoting with said conspirators without whose consent gold ooiild not 
be secured, and said conspirators, denying consent, knew that defend-> 
ants oould not carry out the performance of delivery of said gold 
ooia; that said contracts, being made pursuant to said conspiracy, 

are void under and by virtue of the laws and statutes of the State of 

and 
minois^^/ that by reason thereof, said First National Bank, com- 
plainant, is in court with unclean hands, and should be denied relief. 

The bill to foreclose was filed on October 5th, 1933, and 
alleges thst the First National Bank of Chicago, a national banking 
association, Kenneth G, Smith and Adelaide Stephen, as co-trustees, 
under a trust created by Douglas Smith trf varioixs agreements, dated 
September 35th, 1932, and as suoh trustees, ars the legal holders and 
owners of the certain principal note and trust deed involved here* 



TO ao ;t^d;}^ isttto%o: ftXcfiaeoti jfs»iisx/l ^^Itl©® JbUB sxo^jRijtqenoo Jbi«B 

,flloo Jblos 'to ocmq ^^slfiT^j < < ^*^82 \*ssjas«I. lilv-^i ,Jxfo44s 

)Io» aioo ijlo^ to ^iJiioaa xit Oif Xoeq t@%Q^z m otaX b»T^txt9 uiOMiS fcljse 

jSSei «;fi'OS d3^;8ii *$/o :8iortJtiXI lax a B9*»#e 6»tlaU «if# Mjt 

)ttti b9Xt$tnB 3[anfl. a-^lvm ^ iun'S fijm»%»% bUe ,/wXq htee a* ♦nawfiii/q 

aXoo JbXog &ise ui OO^OOO^QSl TCajicf ijiae o* ^eviXai) ojT ^«T:i£ tCfiXq 

al ^ba.?. tC^aiisXqssoo to XXicf ni Ij^jioislxs d-o«iJaoo y<^ ftaoiiaJbivs $» 

t^a ».<: riieo bXos ^^ OCOCk < si fei«« ot r£9vlX«Jb od- tfloi;Mlii)s 

ton £)Xwo© l)Xc3 *ii«enoo »eoilir ;r»o^iw tto^isiiqeiwpo J^iBs ri*i?T jjc1*ojs 

tXO-STlqBiioo ti ' < js^^ii^jsmo JS>JL«» #«</* iaJLpo 

-SCO .ioBE LmoltsjCA tBii'i bim t3:o»50if* 0Obp»t x^ tMi \j9ioaiUl 
iaileT JbeiadJb acf JEiXt;oil« J&cb ,«iifl5'!/^^ rtfiSkloc-; tn/oo at «i ,tfl.efJiBXq 

te« j'SSei «rf#2 t9do*o0 no i)©Ii saoXosio i; o* Xii<^ ariT 

Jb^t/^fc ^ejfiKHfiesag-'^ Bi/oiTsv 'v:* xi^imS' aftlgwoG x^ ba;t(«,9T0 Jain* fi voXtfw 
bm Bj9bLoA Lv^Bi afl* ati" ,839;fat/T* rfoi/a 8jb l»ttc < < rracfJK»«'q»8 



, ) 



As Indicated by the answer whioli was stricken, the 
defenses set forth are that the oontraot upon which plaintiffs suedj 
was entered Into In furtherance of a conspiracy to defraud the 
defendants, and ls» therefore, Told« It Is to he noted that the 
First National Bank of Ohloago, which is charged with wrongdoing 
la this answer. Is suing here as one of three trustees \inder a 
trust created, that the suit is brought for and on behalf of the 
beneficiaries of such trust, auad th.^t there is no showing that the 
trustees have any interest In the property involved, other than 
as stated* 

Defendants cite Section 5 of "An Act to provide for the 
punishment of persons, co-partnerships or corporations forming 
pools, triusts and combines, and mode of procedure and riilss of evi- 
dence in such 03,808,** (Cahill's Revised Statutes, 1933, chapter 
38, paragraph 603,) as follows: "Any contract or agreement in viola- 
tion of any of the provisions of the preceding sections of this 
Aot shall be absolutely void,** as authority for the proposition thatj 
beoause of the facts set forth in the answer, the contract betwemn 
the parties to this suit is void, and that they, therefore, have no 
right of action* This provision of the Aot in question is meaning- 
less, unless it is read in oonnectlon with Sections 1 and 3 of this 
Aot, (Oahill*s Illinois Revised Statutes, 1933, chapter 38, 
paragraphs 598 and 599* ) These sections provide: 

*«598t If any corporation organized under the laws of 
this or any other state or country for transacting or con- 
ducting any kind of business in this state, or any partner- 
ship or individual or other association of persons whosoever, 
shall create, enter into, become a member of or a party to 
any pool, trust, agreement, combination, oonfeAeration or 
understanding with any other corporation, partnership, 
individual, or any other person, or association of persons, 
to regulate or fix the price of any article of merchandise or 
commodity, or shall enter into, become a member of or a party 






— §14 J.-li- v'^l si flOl#E0//p fli o l/i. .7,. ._. J, w i;^. .-. CAW i...; O.J.-.A ,...f.. 



10 n i < ... 



to any pool* agreeaent, oontraot, eombination or oonfeder- 
ation to fix or limit the amount or quantity of any artiole, 
oommodity or merohandlae to be manufactured, mined, pro- 
duced or sold in this state* suoh corporation, partnership 
or individual or other association of persons shall be 
deemed and adjudged guilty of a conspiracy to defraud, and 
ba subject to indictment and punishment as provided in 
this Aot,« 

"SgS. It shall not be lawful for any corporation to 
issue or to own tmst certificates, or for any corporation, 
agent, officer or employees, or the directors or stook- 
holders of any corporation, to enter into any combination, 
contract or agreement with any person or persons, corpor- 
ation or corporations, or with any stockholder or director 
thereof, the purpose and effect of which combination, con- 
tract or agreement shall be to plaoe the management or 
control of such ccMjblnation or combinations, or the manu- 
factured product thereof, in the hands of any trustee or 
trustees, with the intent to limit or fix the prioe or 
lessen the production and sale of any article of commerce, 
use or consumption, or to prevent, restrict or diminish 
the manufacture or output of any such article*" 

la OhicagQ Wall Paper Mlllff v. General Paper Co.. 147 Fed. 

491, the plaintiff corpora? t ion sued for paper sold to defendant. 

The defendant filed certain pleas, in which it was alleged that 

plaintiff corporation was organized fox the pwrposc of acting as 

exclusive sales agent for the paper and paper products to be produced 

by certain manufacturing corporations located in the states of 

Wisconsin^nd Michigan, engaged in the paper industry, and it appeared 

that for trading pvirposes, there was a practical amalgamation of a 

number of producing companies* It was alleged that pursuant to the 

confederation, plaintiff corpor?9tion became the exclusive sales agent 

of all of these paper mills, with exclusive power to determine the 

extent of the output, and to fix prices arbitrarily, and that by 

such confederation, competition bstween the producir^ corporations 

was stifled; that upon the plaintiff corporation being organized, it 

came to the state of Illinois, complied with the requirements of the 

law of this state, secured a place of business, and has since such 

time continued to handle and sell the combined products of 21 mills 

in Wisconsin, Michigan, Illinois and other states, as was contemplated 

by the agreement of confederation, and that the alleged combination 



.91'. 



1 to 






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.fcjft b«8»XXi? »»w #i rfoiff^ ci ,«,B»Xq GiaihtM bsXll: icBbaelsi) sriT 
jOixiJOTq ftcf 0* e^oir&onq TScjiJC?: bn*' tsw^iJCf &M let *ir#^6 eslist »viax/Xox© 
jT-seqce ifx ta<- ^x'^&Bvbnt roc- \ati .uu^lffoXM baM atmameBl^ 

taB-gr e«Xs8 »rXftx/i03c» ttii amfiostf noirf'f?T:oq"soc ill^aiaXcf .eoitf'^Tafc^taoo 
Bdi ©flijats^sfc o* iwpoq ariBirXoxs tit lit ^^lllm t?)«?»<? «feeri* lo XXfi \o 

■iioi^atoq^oe jftloufooic "«mt«»<f aottti^q&ot: , ' tofieliioo ifojEre 

a^i to a^ctaa'f- •'rf:^ ditv bttlqmoo ^aXo/ii ^^j-j'^o-a ©rf* ©* mub© 

aXXitt XS to a^sLdboto feenlcfii©© eifr* i h&ijaltaoo •«!* 

»*<»IqjB»*xroo ejrw s«j .eat-^^e Tsild^o Itfi* aioniii-i .ojB^iiiOiM ^aimaooii'S al 

no .)0 fc9?< inds baa , to jfji»me»T8a til* xtf 



l8 TiolatWe of the statute of the state of Illinois herein quoted. 

la passing upon this defense, the oourt s^id: 

"It cannot be successfully contended th^t the contract 
in suit falls within the sanction of the fifth section. Ths 
contract thereby denounced as void is plainly one which 
directly contravenes the earlier sections; one in which the 
trust takes root, or by which the illicit scheme is organized. 
The defendant below purchased the paper in the ordinary 
eourse of business* It was a stranger to the alleged unlawful 
oombination. The sale of the merchandise had no direct 
relation to the prohibitions of sections 1 and 3. The same 
distinction has been drawn under the federal anti-trust act 
( Hopkins V. United States. 171 U. S, 578, 592, 19 9up. Ot, 
40, 43 L. Ed. 290; Anderson v. United St-^-tes. 171 U. S. 604, 
615, 19 Sup. Ot. 50, 43 L. Ed. 300), and this oourt has 
several times held th?t contracts founded upon « good con- 
sideration are collateral to the unlawful scheme or combin- 
ation and not tainted thereby. Dcnnehy v, MoNulta. 86 Fed. 
825, 30 0. 0. A, 423, 41 L. R. A. 609; Star Brewery Co . v. 
United Breweries . 121 Fed. 713, 58 0. 0. A, 133; Harrison 
V. Glucose Oo. 116 Fed# 304, 53 C. 0, A, 484, 58 L. ^, A. 915. •• 

In Lafayette Bridge Oo. v. City of Streator. 105 Fed. 729, 
suit was brought on a contract for the erection of a bridge, and 
the saae defenses, aaong others, were urged as «re urged here, Thert 
vat ao question raised, but that the work was done as it was con- 
tracted to be done, and the court said: 

"The defendant is, in this suit, attempting to avail 
itself in a collateral proceeding of a defense based on a 
fact- which should be determined in a direct proceeding. 
In other words, before a defendant can evade the payment 
of the purchase price of commodities, actxially received, 
on the ground that the seller is a trust or combination 
in restraint of trade, in contravention of the statute, 
there should be an adjudication of s ooarp#ttnt tribunal, 
in a direct proceeding instituted for that purpose, deter- 
mining that such seller is a trust or combination in the 
sense contemplated by the statute. This is in accord with 
the ordinary rules of statutory construction. The practical 
working of any other rule could not fail to emphasize the 
justice and necessity of so holding in cases similar to 
the one at bar. It cannot be insisted that the decision in 
one case would be binding or even persuasive in any other 
case. Each suit to recover purchase money, in which the 
statute is pleaded by way of defense, would call for a 
separate and distinct determination of the legal status of 
the plaintiff, thereby making the claim for the purchase 
money merely an incidental issue. This would be true even 
if the amount involved were but five dollars, and the case 
were before a justice of the peace. The result would depend 
upon the varying conditions of each c?.se as affected by 
the skill of lawyers, the bias of jurors, and other attendant 



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olrcumstanoes« Thia would inevitably lead to auoh oonfusion 
as vould foroe federal courts to ao oonatrue the statutes 
as to protect the due and regular administration of justice 
from unconscionable prolixity and irreoonoilable adjudica- 
tions**' 

There is no showing here that the plaintiff in the suit 
ever demanded th-^t defendants pay in gold coin, as the contract 
proTldeSf or that defendants ever made any tender of legal tender 
notes of the United States in payment of the amounts which they 
admit are due under the terms of the contract » except for the 
alleged defenses set up in this answer. Also, the court will take 
judicial notice of the executive order of the President of the United 
States, promulgated April 5th, 1933, a&d the resolution of Congress 
adopted June &th, 1933, whioh provides that oblig^^tions payable by 
their terms in gold coin "shall be diseharged upon payment, dollar 
for dollar. In any coin or currency whioh at the time of payment 
is legal tender for public and private debts*** 

We are of the opinion th?^t the defensea set forth in the 
answer to the bill filed in this cause, are without merit and that 
the court was fully justified in striking the answer. The decree 
affirming'^the Master's report of sale is affirmed* 

AFFIRMED. 
HEBEL, J. AID DEMIS E. SUIiLIVAN, J, OOiOUR, 



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382X3 

JOSEPH P£HLMAH, 

Appellae^ 
▼• 
SAM SAMSON, 

Appttllant. 




28 5 I.A. 5 84 



MR. PRSSIDIHG JUSTICE HALL DELIVERED THl OPIMIOK OF THB OOURT, 
This is an appeal by defendant from a judgment of the 
Municipal Court of Ohioago» entered on February 33rd, 1SB5, for 
the sua of #364»00 and costs of suit* 

Three statements of olaim were filed in the Municipal Oourt 
lay plaintiff against defendant. In the first, it is oharged that 
plaintiff cashed a check for defendant, payable in cash, for the 
sum of |134*00, drawn on the Liberty Trust and Savings Bank, and 
signed by the defendant; that the defendant wilfully, and with 
malicious intent to cheat and defraud the defendant, represented to 
the plaintiff that the check would be paid when presented to the bank 
for payment, but that payment was refused, and that the check was 
returned to plaintiff marked "not sufficient funds." The second 
statement of olaim is substantially the same as the first, except 

that the allege; t ion is that a check for $12Q«00> drawn on the same 
bank and dated March 18th, 1931, was cashed by plaintiff, and when 
presented to the bank, payment m&a refused, and it was returned 
marked "not sufficient funds"* The third statement of claim is the 
same as the other two, except that it charges that the check was 
dated filoTember 13th, 1930, and was for $130«00. 

Defendant filed an affidavit of merits in each ease, and in 
taeh of these affidavits of merit, he denied that the defendant cashed 
the checks, as alleged, for the purpose of wilfully and maliciously 
defrauding the plaintiff, but it is alleged that each of the checks 



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.OOAOXHO 10 ( «KOeMAB MA8 



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Arft to *ff»fr§fe«t •'^ s&tn'i i^a<sbtt9J:9fto ^rrf XesqqB cjs »i tJt/lT 

ail;t 10^ ^de»G at ttldsxsq ^iasba»te>b %ct 3{09rio s b9dBso \lltal£Lq 

bapi ,in«a agiilvse bofl i-sxnT xti^tiil «rft no flirj?m> eOO.^SXf ^o mu9 

diiv? Jbar. ^^JtlJa^'iXiw ^nBibc&lftJb 9£i- jtncbnftlafe Oil* yd beagle 

of b9;fxi9»oiqsT: ti-nr.JbflslsJb »d:* bUMttsb baa cJ-^ado o* Jflstni awoir-ilpj!? 

*q©oxd ^^atll art* ais ^m*!^ -^ri* f-^XiSi^frve^fsdy© 8i ai^Xe lo ;ta©ffl»*«ta 
•«us« drf# no jnr«sJb eOO.' Tfoftffo ft ^srfJ" ai no l^^gellis ari-'^ 

asihr feflF ,i^i*iii«Xa yd bodeffo e ^ISSX »dd-0X doi.sJI fe«*Bfc Mfr ataAcT 

9di »i miaLti Ito fasiaBi.Hin Mld# »dT ^"Bfiat;^ ta^toniuB ton*' bBJtxBm 

Bsw 3Co9do »d* ladiJ' a«aT'?flo tl f^dt *q»ox9 tOw* T»ri*o «d* e« •■usa 

•OG.OFXt rrol: aew ba^- tOSex ,d*5X larfasToK barf-fiJb 

si fell* t^a-^o rioj^o fli aJiTsm to *i:vflfclTl« ui^ fcaXit Jir^JbaalftC 

ftftp^', +n-p«:-..if5h *»d.+ *.«d? b9la9b ad «^i*[»ai to erf-XvftJbitta »©9dJ to dojsa 

..^* I. ^.;. .^^iis'ill'9 1:0 ©aocrxuq ed^ Tot ,i)S§9XX« b« taioodo ad* 

-flj to do*a t'-di b^^nLXf. ei *i *iicf ^'^'^ ;-.+«x«Ij an* vfllbw^ital* 



i 

sued on was part of a series of olieolcs given to the plaintiff, all 
of whioh were undated, and in wbioh the amounts were left blank; 
that the oheolcs were given to plaintiff to be used in payment of 
loans made to the defendant by the plaintiff over a period of eight 
or nine months, and that eaoh of the oheoks, as to the amount and 
date, wsre filled in by the plaintiff, and that plaintiff in eaoh 
oase, oharged the defendant an interest rate of 25% per month* It 
is further alleged in each of the affidavits of merit that plaintiff 
was not licensed to do business under the small loans act in the 
State of Illinois, and that the interest rate was usurlous» 

Upon the issues made by the statements of claim and the 
affidavits of merit, the oases were apparently consolidated for a 
hearing, and after a hearing upon the evidence adduced, t^ej wer© 
submitted to a jury, which returned a verdict of not guilty. The 
checks upon which the actions were brought, were introduced in evi- 
denoe, and there was no proof of any offer of payment, and no evldenoi 
was introduced to refute the charge that when the checks for the 
amounts mentioned were presented to the bank for payment, payment was 
refused, J^fter the verilot for defendant was returned to the court, 
upon motion of plaintiff, the court entered judgment for plaintiff 
non obstante veredicto * 

The defendant was called as a witness under Section 60 of 
the Municipal Court Act, and testified that he had received money 
•u the checks which he had given plaintiff. 

Plaintiff testified that he cashed the checks for defendant 
at various times, and for the amounts shown on the face thereof, and 
that each time defendant represented to him that there was sufficient 
■OBoy in the bank to pay the checks and that the reason he kspt the 
checks until April, 1931, was because he was ill* He testified on 
cross examination that he wrote out the checks and that defendant 
signed theB« 



s 

lis ^JJiialalq 9(ii ot n»vij t :!.o!.*t:i' lo a®xi;»« s lo t%B^, asw no bmj» 

i»i« i^tisofius 9iit ot ssf tsieexic 9£[it to ^tja^ i»dt ban ^Bdtaom Bata to 

don* at tmtxlsiS^ tMt bsiA ^ttltat^lq 9iii xd al b9llil s-xtw «»tsl> 

ttltcialq t^dt ttT:9t '^ -.tTsliiltr. - '^ "^o ii8fi» ni Jbegsli^ i^tittut si 
»xf* xxi *s>je aasol id5 lel ; tftwd oJb o* Jb08fl»olX *on bjsh 

srij ui. '■ to s*fl;9E8 ;]■*;}■ e erf* \*rf sJbfiw esi/ss ' /' ~ 

-iv9 ax fcdoiffcoiJni 9T»w ,*rigu0'xcr ©taw anoint- rioirfw aoqw sXosxio 

9a9bt-73 on bm-j ^ttiomxeq to rceWr ■ ?i uv si&rljf £«!« ,eoi!»i) 

arid- *ro^ SJfoorio s»il* iisritr *^j sjjx*^ ' ' ^outcTiui bj8w 

tli^fllcXc- aol- tn9fii^i«/(; borts^aft ^rrift:' /.li-tai^Iii lo noitom aoqu 

lo G8 aoi:;»3«C t9£>«u eaenJ-xw j? ee i>»XXflO bkw ^aBba9t^t »rfT 

"f^aoffl bovieoe'T bjsri s. texlX*89* JbflB ,#oA ;^tx/oO ImiiQlauiS, sdt 

^llt&aislq rrsvig b sri »ii ifolxfw 8io»flo 9il;} no 

d-oijfcnsleJb tol oioorfo sri? Issxlit^o ©ri .tttdd- bsJiliireo^ Iti^flisX'i 

te« ,l«#T»rf* soflx »r oiia ctnuoais ariJi' Tot fcn* ^a^Mii" axroiTi-.v *« 

tattai'ituei 8"=^ «i»ri* Jj^iicT oiiil o* b9in9B9%ei«r ta»hnii'i»b »«!* do«o tsdt 

9di iqai 9d no9Ji9r 9dt ipdt bos aioerf© »rf* t^q o;f afnpcf ©if* al x»iK» 

ao ft«i^l^8«* «K .XXl ep^' »<i »aif»a»cf »«i» t-^Sex ,IJticqA Iltau 9:i99do 



s 

One Heman Uendelson, a witness for plaintiff, testified 
that he had a conversation with the defendant about May> 1931, at 
which tiffls he requested the defendant to pay plaintiff his money, 
and that defendant told the witness he would do so as soon as he 
was ahle« 

One Harry Rosenfield testified to the same effeot as the 
last witness* 

The defendant testified that he had not Made the statements 
testified to by the last two witnesses. 

The court heard the witnesses, and we see no reason for 
disturbing Its finding. Therefore, the judgment is affirmed* 

AFFIRMED, 

HEBEL, J. AND DENIS £♦ SUI.LIVAH, J. CONCUR, 



5 

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lot ao9S9r Off efen &m bn& ,80ss®fjti» »{f^ 5t«eri tx'joo »ifT 



.mmmo .t, ,iAviaa^e *£ ma:ar . ^ 'Cah 



38337 

JULIA OOBB0 as Administratrix of the 
Estate of Louis Oobb, Deceased, 



RUSH BUTLER, JR., 



Appellant, 



Appellee* 






.^■^ 




APPEAL 

SVt'EHIOR COURT 
OOOK OOUMTT. 



28 5 I.A. 5 851 



HR* PRESIDING JUSTIOE HALL DELIVSRED THE OPIKION OF THE COURT, 

By this appeal, plaintiff seeks the reversal of a Judgment 
entered against her on April 3rd, 1935, in the Superior Court of 
Ooolc Cotinty, for oosts of suit* The action against defendant is 
predicated upon the charge that her hushand, Louis Cobb, came to 
his death on October 3rd, 1934, because of injuries alleged to have 
been sustained on August 17, 1934, throiigh the negligence and wilftil 
and wanton conduct of the defendant. The trial was before a jury, 
and after hearing the evidence offered on behalf of plaintiff, the 
oourt directed the jury to find the defendant not guilty. 

There are two ootints in the declaration filed in the cause* 
In the fisst, it is charged that on August 17th, 1934, the defendant, 
as the owner of an aut<aiobile, was operating it in a northerly 
direction along Michigan Avenue in the city of Chicago, and that Louis 
Oobb was a pedestrian lawfully and rightfully along Michigan avenue, 
at or ne?»r the intersection of Chestnut Street, and that while in the 
exercise of ordinary care on the part of Oobb, and through the care- 
lessness, negligence and inproper conduct, of the defendant, Cobb was 
knocked down and suffered severe injuries.and that as a result of 
tueh injuries, Cobb died on the date mentioned* It is specifically 
charged in the declaration that at the time of the accident, defendant 
was driving his automobile at a speed greater than was reasonable and 
proper, having regard for the condition of the traffic and the vise 



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.Y^XiiTS *on *n«fcfl9't«l> art* bnil o^ ^lut arf* Mlosiife J-xuoo 

»*««f)ii8l-6fc 9tii ^^cex »ri;rVX JaustfA ao t^tit fea^TBJ^o si J-i ^teixl arf:t fli 
'^Xiad^rton s flJt *i ^fiit^Taqo 3«w ,»XlcfoK!0#i;B ii Htwo ftif;^ •« 

-©ISO sffJ rfaijoiri* Jbna ,dcfoO lo if* no atrro ^T^i^n-t^o *o aeioicox» 

lo d-Xi/iM: « »*! teri* bas.BeiTx/tni 'J-ravep! bs-rallus f^rtt* iwofe bsiLocai 

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r«AJbfl«l9l> t^nafcl©©^ ©riJ to &mti edt op -tjsif* aoi;> inXoefo ©rii* ci Jbes^x"!* 

taut •Xd«fle*i»^ •«» ««tf* t8*.>»»«s fiosoe n Ire ©XldonioJ«« «irf Salvl^il) •«« 

»«0 9it(il ba« ainAi:;r ail* to itoi^ifextoo erf* icol J&t^8«t snivscf 4'X9qoitq 



t 

of th0 public highway in question, in violation of Section 33 off 
the Motor Vehlole Lav* Also, that the defendant negligently 
operated and drove the aut(Knoblle at a speed greatly In exo«88 of 
15 miles an hour through a closely built up business district in 
the city of Chicago; that the defendant neglected to sound a horn> 
or give warning of the approach of the automobile, in violation of 
Section 40 of the Motor Vehicle Law, It is also charged that the 
defendant failed to have his automobile equipped with good and 
sufficient brakes, in violation of Section 31 of the Motor Vehicle 
Law, and in negligently operating the automobile at a high and 
dangerous rate of speed, Oount two charges that the defendant 
wilfully, wantonly and maliciously, and with conscious indifference 
for and utter disregard of the rights and safety of the intestate, 
operated the automobile at the time and place In question* 

F» Bertram Scent, a police officer connected with the 
CThicago Park System, testified in substance that at about 3:35 in 
the morning of August 17th, 1934, he was going north on Michigan 
Avenue, and that the accident la question happened at Chestnut Street 
and Michigan Avenue; that Michigan Avenue is a boulevard running 
north and south, and that GS^estnut Street crosses it east and west, 
and that it is about 35 or 30 feet from the east side of Michigan 
Avenue to the center of the street; that there was an island light 
at both the north and south intersection of Chestnut Street; that 
the lights were not operating on the night In question, as they were 
Installing a new lighting system at the time; that the night was 
dry and the roadway was good; that it all happened in the city of 
Chicago; that he saw the decedent just as he, decedent, got down 
off the curtMuig at the southeast corner of Michigan Avenue and 
Chestnut Street; that the witness at that tiaw was at Chicago avenue. 



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1 

south of azid a full block away; that he saw decedent walking west; 
that he saw him continuously from the time he left the curbing 
vmtll he was struok by the automobile; that the witness was riding 
in a ear during all the times in question, and was traTsling north 
at a speed of about 30 miles an hour; that he saw defendant's oar 
coming north, and that it passed the witness on the left, and 
that it was then going at from 30 to 35 miles an hour, and that at 
that time, he saw decedent walking in a westerly direction; that 
after decedent had passed beyond the half of the east section ef 
the drire, the witness saw the decedent hasten his speed, and that 
when decedent had reached a point a foot or two from the island 
light, he was struck by defendant's car. The witness stated that 
the safety island, to which he referred, stands in the center of 
the street* This witness also testified that there were no obstruc- 
tions between him and the automobile which struck the man, and 
that the street was lighted, and the lighting conditions were good; 
that when the man was struok, he was thrown in the air and carried 
©▼er to the west side of the north island li^t, a distance of 
about 30 feet, and that the oar proceeded about 150 feet further 
and stopped. The witness further testified that at no time did he 
hear any signal, nor any horn blown; that he and an associate 
officer picked the decedent up, that he was then unconscious, and 
that he was taken to the Passavant Hospttkal. This witness stated that 
Michigan Avenue at the area in question is a built-up b^iness and 
residence district. On cross-examination, this witness stated that 
the lights on both his own and the other oar were ll^^ted, and that 
there was a full view down the street. 

John B. Casey, ajiother police officer, who aooompanied 
officer Scent, testified in substance that on the night and at the 
time in question, he and Sergeant Scent were riding in a squad oa# 

\ 



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4 

north on Michigan Arenue* and that he witnessed the aooident. This 
witness stated that he saw the decedent just after they had passed 
Ohloago Avenue, and that decedent was then stepping off the curb 
at Ohestnut Street going west; that at that tlae the witness did 
not notice any traffic or oars; that as they were passing Pearson 
Street which is a block away from where the accident happened, a 
oar passed them going north at a speed of 30 or 35 miles an hour; 
that he saw the decedent orossix^ the street all the way across 
until he was struck; that as the decedent passed the center of 
the east drive, decedent quickened his pace; that he, the witness^ 
heard no signal from the other car, and that at the time of the 
colli si on, the decedent was about two or three feet fr(XB the center 
Of the street; that deoedent was thrown in the air and carried to 
the north island light about 25 or 30 feet, and that the automobile 
proceeded frcm 200 to 335 feet from where the accident happened 
before it stopped; that he, with the other officer, took the injured 
iian to the Passavant Hospital* 

Jiaia Cobb, executrix, and the wife of the decedent, testi- 
fied that at the time of the accident, the deoedent was 37 years of 
age; that they have one child, born in 1934; that at the time of the 
accident, her husband was employed at 32nd & Michigan Avenue, and 
that he was then earning |18«00 per week, including his meals, and 
that at that time, decedent's condition of health was good, as were 
his habits; that he was sober and industrious, and took care of his 
family, This witness stated that she saw deoedent at about 5 o'clock 
In the morning after the accident, at the Passavant Hospital, and 
that at that time, he was conscious; that he was in the hospital 
from the date of the injury in August until October 3rd, 1934, when 
he died, and that the child is still living. 



T4. 

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. Mf •;. Hits «i ijXlrfo »ff# >.ii«f* ban ,f>»16 ©rf 



i 

Oral argument was had, but neither in his brief, nor In 
hia oral argument, does oo\msel for defendant deny th^^t defendant 
was guilty of negligence at the time and plaoe In question* The 
position taken by oounael Is that the burden was upon the plaintiff 
to prove the exercise of due care by the Intestate at the time and 
plaoe In question, and that there was no evidence whatever to sustala 
suoh burden; that there being no dispute In this regard, and no 
basis for contradictory Inferences, the contributory negligence of 
plaintiff's Intestate was a matter of law for the court, and also 
that there was no evidence from which the ^ury would have been justi- 
fied In finding that the defendant was guilty of willful and wanton 

conduct* 

IB MoFarlane v* Chicago Olty Hy# Oe.^ 288 111. 476, In 

passing upon the question as to whether or not the court erred 

In refusing to give a peremptory Instruction to find the defendant 

not guilty at the close of plaintiff's case, the court said: 

"The only question which the court has to determine 
is whether there is in the record any evidence which, if 
true, fairly tends to t)rove the allegotlons of the declar- 
ation, ( Ubby. MoNeili & Libbv v. Cook. 332 111, 206: 
Woodag&n v. Illinois Trust and Savings Bank, 211 id. 573. " ) 

Ija English v. (lordon. 231 Ill« App, 316, an appeal was 
taken to this court from a judgment obtained by plaintiff, in which 
the charge was made that the defendant's autCMiobilc struck the plain- 
tiff at the Intersection of 53rd and Hyde Park Boulevard, Chicago. 
It was urged on appeal that the trial court should have directed a 
verdict of not guilty at the close of plaintiff's case* Plaintiff, 
in that case, was crossing Hyde Park Boulevard when she was struck 
by defendant's oar, and it was there urged, as it is urged here, 
that plaintiff was guilty of contributory negligence. In passing 
upon this Question, this court said: 



I 

't'ti*isisXq 9iii ctoqsj B-rm a«Mxfer ^tfd- tsfj* el Xeam/oo ^jd fls:ist «oi*leoq 

im* 9«iJ axirf *B Qd'Mtf'Bd^ai eil;f t^ ©tbo •irh lo seiotaxa erf* sireiq o* 

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Qj, < « iXI 88S , ^.oO ,YJFi Y^fjS oagoi40 *v ^. , nl 

. , . . .! 

cfridv al ^lllialeiq \<i bttaistdo tiida -/oo ai/l;^ ©ah aaaLst 

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:£>Xjt!8 ^TATOO !»ii:r:5' ,aox*a«itfp eld* aoqiaf 



at ■' 


Jtyoo 


-i^Xaeb grfcr to 
;e0S .XXI ■ 

("*SVS .i)i lit . 





*'Nor oan it be said that It vas negligence per ££ 
under the oiroixmstanoee that plaintiff did not look again 
to see the oar xmtil it cajae suddenly upon her* She might 
well have assuned that if the car were driven at a reason- 
able and the ordinary speed for such locality she had ample 
time to cross ahead of it, and therefore, she w- s surprised 
and confused when she found it close upon her as she reached 
the middle of the crossing. We need not discuss the familiar 
doctrines that each party has an equal right to passage at 
a street crossing and that he must exercise reasonable care 
for his own safety and th^t of others* Each case, however ^ 
presents its own peculiar circumstances, from n^ich it is 
the particular province of the jury to decide the facte* 
And it is simply a question in this court whether we oan 
say th'^t the jury's conclusion is manifestly against the 
weight of the evidence* In this case we cannot so say. 
And in view of the appalling loss of life on public streets 
in our large cities resulting frequently from disregard 
by motorists of the fact that pedestrians have equal rights 
at street crossings, we are not disposed to say that when 
a pedestrian becomes bewildered by such disregard and is 
suddenly called upon to act for his own safety, his mis- 
judgment of the course the aut(»iobile will take is oontrib- 
utory negligence* We think there was ample evidence to 
justify the jury*s finding that plaintiff exercised reason- 
able care for her lim safety and that defendant was 
negligent*" (Italics ours) 

In this case, as is so clearly stated in Snaliah v* Gordon. 

supra, the plaintiff's intestate had the s'me right to the use of 

the street as the defendant* He was crossing at a street inter- 

seotioQ where people usually ordss, and the question as to whether or 

not he was^ia the exercise of ordinary care for his safety iinder 

all the circumstances appearing from the evidence, should have been 

left to the jury, le are of the opinion that the ooort was in error 

In directing the jury to find the defendant not guilty, therefore, 

the cause is reversed and remanded for & new trial* 

RETER9S0 AND H£MAirOS0« 

HEBEL, J. AHO DSMXS E. SULLIVAN, J* OOHOUR. 




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^mwK^ .x. t^i^viijus «s Bi«ata m.i »% «41s3e 



38299 

IN THE MATTER OF THE ESTATE OF 
JOHN V7. LALLITHAH, Deoeaasd, 



AILBERT B. FULTOK, doing business 
as MADISON OIL COMPANY, 



▼• 



Appsllee, 



GERTRUDE P. LALLITHAH, Administratrix 
of the Estate of John W« Lalllthan, 
Deceased, 

Appellant* 




i^PEAL hxd 



OlaOUIT COURT 



OOOK OOUNTT. 



285I.A. 585 



MR* PRESIDING JUSTICE HALL DELIVERED THE OPINION OF THE COURT. 

This is an appeal hj the Administratrix of the Estate of 
John W. Lallithan, deoeased, from an order of the Circuit Court of 
Oook Oounty allowing the claim of Albert B. Fulton, doing business 
as Madison Oil Company, against such estate for the sua of ^^5,000 .OO. 
The oaiise was heard in the Oiroult Court without a jury, on appeal 
from the Probate Court of Oook Oounty, where the claim was filed 
and where, after a hearing before that court, the claim was disallowed^ 

In his lifetime, and for some considerable time prior 
to his death, John W. Lallithan was the manager of the gasoline and 
eoal business of the claimant, who was a i^olesale and retail dis- 
tributor of gasoli&A, retail dealer in coal, and the manufacturer 
and distributor of ice* Claimant's gasoline business was operated 
under the name of "Madison Oil Company «• The claim is based upon 
the charge that Lallithan, as manager of the Madison Oil Company, 
either sold on his own account, or appropriated to his own use, 
86,666 gallons of gasoline of the value of |7,633«18, which sum 
claimant represent s to be the fair market valu8 of the gasoline at 
the time it was so appropriated* 

The decedent, according to the testimony, whs in ohnrge 



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.b3d'8iTqoiqq« oa aj*w tt Mtl# aift 



8 

of the office and yarde of olalmant, looked after truck deliveries 
of gasoline^ and dlreoted the bookkeeper as to how entries should 
be made when gssoline was received In tank oar lots. The record 
indicates that when claimant purchased gasoline, it would be de- 
livered to hiSyOlaimant's, yard in tank oars, and that Involoes 
would be received by Lallithan froa the shipper, showing in the 
oase of ea(& shipment and receipt of gasoline by the claimant, the 
net amount of gasoline to be paid for. In eaoh case there was an 
allowance made for shrinkage, due to temperature. The course of 
basiness shows that in each Instance, checks were issued in full 
for all receipts of gasoline as shown by an invoice accompanying 
the shipment* It is further shown that eaoh of these tank oars 
had stamped upon it its capacity, and th^t in each case the car was 
Inapeoted when it came into the claimant's yard. After being in- 
spected, Laliithan caused an entry to be made in a book kept for 
that purpose, and known as thi "ear book*, which also showed the 
oar number, number of gallons contained in eaoh car, and the amount 
of the invoice, 

Mary Dunn, the bookkeeper of the claimant, testified that 
she had been in F\ilton»8 employ for fourteen years, and that 
Lalllthan was employed there as office manager, and that the witness 
worked under his aupervi»l€»n; that invoices were received from 
shippers of gasoline, on which were stated the number of gallons in 
each shipment; that when the gasoline came into the yard in carloads, 
they were inspected by the yardman, or gasoline salesman; that when 
carload lots of gasoline oame in, entries would be made in the oar 
book showing the oar number, the number of gallons received, and the 
amount of the invoice, miile testifying, this witness had before 
her this oar record book showing the entries for the years 1929 and 
1930, and she stated that such book had been kept in the same manxMr 
and for the same purpose some years prior to that time. She also 



t 

««jtT9vli©i) iowTit rsf^^ bs-AooL ^iamU-&io to aJboceY fin* »oill:o fidt to 
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TOt d-qsX :)fooc .._ _. ars scf o* vt5:.+.L'9 rt/? besifoo iiis^*ll£ej (ba^osqa 

,r50iolKlX Sfid- to 
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it! afloXlfis '?:o terfffti/a »tl& betr^fB «i*^f doXrfw no ^e/xlXoe^-., ., ;fecrqid« 
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ofci ' sric: rOi i.t ;fpri;t otf- Ttoltq 9t.e.9% taoe esoqvifq #««• oif* lot baa 



z 

stated that sometimes Lalllthan would make the entries in the boolc« 
and that sometimes the witness would make such entries, but that all 
of her work was done under Lalllthanis supervision and direction* 
She also testified that an inventory hook was kept, which contained 
a record of the inventory of the gasoline, and that sometimes 
Lalllthan made entries in this book, and sometimes the witness made 
entries therein. She was shown a certain invoice received from the 
American Petroleum Oompany for a carload of gas, and she testified 
that this invoice showed that there was a shipment of 10,066 gallons, 
and the check was stade out by Fulton, the claimant, for the price 
of this shipment, and that an entry was made in the car book showing 
the number of gallons indicated by the invoice. She further testi- 
fied that thereafter, at the direction of Lalllthan, she had the entry 
in the oar book changed so as to show that the number of gallons 
received was 8,066 gallons, instead of 10,066 gallons, which entry 
indicated a shortage of 2,000 gallons; that as to another invoice 
which showed a shipment of 9,974 gallons, at the direction of 
Lalllthan, she made an entry in the car book which shovM the receipt 
of only 7,774 gallons; that in the ease of another shiiaent, the 
invoice indicated a shipment and receipt by claimant of 10,333 gallonSj 
when the entry in the car book showed a receipt of but 8,323 gallons, 
but that a check was given in payment for 10,323 gallons; th»t origin- 
ally the entry in the oar book showed a shipment and receipt by 
claimant of 10,223, but that this entry had been changed to 8,233 
gallons, and that she did not identify the change as having been made 
by her. She further testified that nobody could work on the books 
but the witness and Mr, Lalllthan; that in the case of another invoiee 
received by claimant's office, the invoice and oar book originally 
showed a shipment and receipt of 10,271 gallons, but the figures had 
been changed to show a receipt of 8,271 gallons, but that a check had 



s 

lie *J6C* tiM ^aei*?;*!?® rioxra 93£pfli jiXfcww eeftii^iw sa* Be«i*9ff»08 ;r?ri# J&oa 

9iSt m6t"t ]b«vlco©T soioToi ^XBt^t© M ogroils e.T arffi •aJtaitMi;*' solitad 

iMiXi^a aao,CX ^o trtsmqii ?iornX Bid* fstli 

•oiiq ^dt Tol ^^Ofiifiii-^- ..lo^Ix/S x^f tun 9fe.syE e o eii^ bafi 

Td-no 9xf^ lM»ft s^a .^siiJiXXAi Iff «oXi"e»iJt6 »xi# i*j« et»njiOT«ii* *^* t»i^ 
8iioXX«g ta T^dgma 9^dt tv^i worfs 0^ »^ vrio iloocf Tt«o eif* at 

cisooT *ifv JiJHKJf'f. cirji!^ inc^:/ 'r;-? '^f^t «i: x^jfa» as; ©t^ste sxla ^xisriJlXXeJ 

oXX-Re 5a^,0X t0 *aj3«i.sXe Y«f *«[i®o«'' isffi-.ri^n r ^^,t«5»iijfli »oi©vcl 

!2, i-ro t-jft ianoiXXlsa CSS«OX lot ;r«erxfiq al fievis a^w :(oe. i* *ircf 

5ES,8 o:J ba^tido «••£[ i>»ii VJ:*-K© »i4* *^«f* **'<* ^cv^ScOX to *neffil«Xo 
»?v-K< aa94 sftivjsjl 6'^ »3ii6i{r> 9di ^0-lirt^bX ioa. bXb ©de itdi bas «efloXXB8 

-rXXMi^ixo 3lo©cf t:o bOM •oiov ^Adilto ■•^a^aaiiiXo ijcf b^Tiaoei 

. 8©itfiit ©xft to<J »aiif> ' • t J-,l#09rE fcfl# ttt^mlfi* » bv9»d» 



4 

been given in payment for 10,371 gallons* She also testified that 
la each case of the giring of these oheoka, they were made out either 
by Lallithan or by the witness at Xtallithan's suggestion, and signed 
by Fulton, the olaioutnt. She identified another invoioe showing a 
shipMtat and inToioe of 10,209 gallons, but that the oar record book 
showed the receipt of but 8,309 gallons, and that in this instance, 
Lallithan told the witness to reduce the entry from 10,309 gallons 
to 8,209 gallons. Another invoioe identified by the witness showed 
a shipment, and an original receipt as showa by the car book of 
10,298 gallons. The witness testified that after the original entry 
had been made in the car book, at the direction of Lallithan, she 
changed the figures so as to indicate 8,298 gallons instead of 
10,298 gallons* In another instance, the invoioe showed a shipment 
of 10,367 gallons, and the witness testified that at the direction 
of Lallithan, she made the entry in the car book show a receipt of 
8,267 gallons* The next item testified to by the witness was of 
the same character, where the invoice showed a shipment of 10,364 
gallons, and where the witness, at the direction of Lallithan, made 
an eatry in the car book showiag the receipt of SniM gallons* The 
next item identified by the witness wr;s of the 3?jae character, where 
the invoice showed a shipment of 10,339 gallons, and the ear book 
showed the receipt of only 8,239 gallons. In this instance, as in 
each of the other oasea, the check prepared by the witness, or by 
Lallithan, was for the payment based on the number of gallons shown 
on the invoice. This witness testified that the oheeks issxsed in 
payment for gasoline were made oat either by the witness, or Lallithan, 
and were signed by Pulton. 

This bookkeeper testified to a number of other transactioae 
similar to those noted above, and the reo«i^ indicates that at the 



# 

te^iiti* itPO dJbfias Bt9-: X9M-^ ,»ao«/f» »ft«rf* t» s«iYia aut^ 1<& as.^o ^05?» Mi 
YiivfOilB aoiovxii t9rf;fo«.'S btiUitawbt 9vH ,^aaaiJ;*io ©jriS^ ,no*i0'? fdl 

8£i0 ii?V'; SOS, 01 moi'^ Y^!fa$ sn* ©Oi/>fest «t p!e©n#Ji«r 9x1* Is^io* rfjSxi^lIXstl 
^sirs^la sBBattT! ©iat -^d £f<>m*£r*&i- «©it*¥ai %»&&en'- •aisolXa:^ €08a8 «^ 

. OTT^Jtiia 8 feswoile »t*lovirJt sifif ,a©fiC'4?«jajt iteMQam M% »e.a©XX£5g 86R<t©X 
floii^©^xl-o u. . .'id^ l>8ni;*p»# eB9iX*i:'^ 9jff bttJS'^ 5S«eXX.?.B ves,OX |o 

*3S,0X "io ftfBmliiB -3 be^-srfa ft&XoviTi eiSJ' ©^retiw ^tS'toexsitft 9«^ii sift 
dJtott ,a#iftfXIX«a "io i?o ,*:*!>«•»• i:b »ff* ** ,i5£©«0'i$y ddif iWdifw fees .enoXijra 

icod -r/io !»/f;f ^fonjT »8no£lP7: ^SS^iDX 1:o taom^i^u e to*^otiu •oiovKi »ri* 

^etff mmXXas to T«refjpi;n h; vastf tfi9mxf^ »fif i^il &ii-9 «flj»i(*iXX«*i 



s 

direct ion of Lalllthan, the boolcs of the olalmant were made to 
shov more than 80>000 leas gallons of gasoline were reoeiTed than 
were aotiially reoelved and paid for* However, in so far as we are 
able to lee^rn froa the record, there is no showing whatever as to 
what became of this gasoline* A public accountant who examined the 
books, shipping bills and other dooiuaents, of the claimant, estimated 
that there was a total difference of 86,666 gallons between the 
amount of gasoline actually shown as received, and the amount shown 
by the books to have been actually received* Upon a ooaputation 
made, based upon the average price of gasoline for a period frMi 
August 1st, 1929, to August 6th, 1930, this accountant concluded 
that this gasoline received but not accounted for was of the value 
of 17,685.54. 

Several other employees of claimant testified, but none 
of them explained the mysterious disappearance of this gasoline, 
which, without doubt, was received at claimant's place of business 
In tanks provided therefor. The only testimony which suggests wrong- 
doing on the part of the decedent, is that of Albert W» Hudland, 
a witness" offered by claimant, who testified that about the first 
©f August, 1930 J and two or three days before Lallithantg death, he 
had a talk with the claimant, and that after such talk, he met 
Lallithan, and that he then told Lallithan he had heard bad news, 
and that Lallithan replied: "Well, it is too bad, what is the boss 
going to dot", and that the witness replied that "he (meaning Fulton, 
the claimant) is going to oall the auditors in", and that Lallithan 
said "fell, if he does that, then that cooks my goose". 

Without evidence to support it, the trial court seems to 
have arrived at the conclusion that Lallithan had committed suicide 
shortly after the incident last mentioned, and that, therefore, he 



aJl;^ beriftoea e^iaw ©rtlX©**^ t© am>XX«s ««»X OOO«j08 iw4t ftroas wo£i» 
x-^ sw 8JR :t3l oa ai tioTswoH •rol blsq. Jbfl« ^©vlaeea ^IX«ii*«ws &iam 

»ii^ iX39w*©4 saoXi^a isQij^B ^%&iXib ijB*o^ ffi 8^w »icari* *M4' 

JbeJ&jtrXofioo ^iiei-fltjucoo.^ , --te d-etr^A oJ- « ^ eX #a&a{fA 

-swici/cf lo SQAXe a •*£££«! avXa^o©' ^irfyol* ;t'jjod*iw ,rfoii6i 

^c'tt:: '-'fit isj^ic o&ltit^®i oiiw ^tasmXulo xd berallo esexi^J;* s 

ou ,d*/36ifi e'fl^xiJiXXB'-i duo'idcf a^jsi) e^id^ xo cm* fcn3 «05ex «tf»JUgi/A lo 

t«E ad »iXB* AouB TO«e ;f.sd* 5a:- ,;raiuii«Xo e»xl# ii;fXw jCXfl^ b Jb«jcl 

aaecf «ri;r al *sriw ,fcj6cJ ood- ei *i t,ll&^*' jJb^lXqaa xiusji^iXXiuI j-.«if;f fine 

iUBrfi-xXXjBil t«il# I)fl£ ,"iil aaoti): IXe© oJ ^pilXos «i {^asssdAlv 9ii$ 

♦ "90O0S Y:a aiooo t.^ti:! neri? ^j.^ff* eaol> ^ tjsa 

o:f REsris *ii/oo XJBJti^ edi <*<£ il"ro<:;Qi/« o* aonft^Xv® tuedtX"^ 

iotm foftd-*i:;;iii:oo £)Bif fl«it*lXX ;.,i/Xonoc |)ovi'xia »TB«f 

, loTteiaff* ^isdi fcn« ^banoi*fi»ii taJBX *fl»l)ioiti 9ti.i toitsi \ltz0d9 



was guilty» The oourt, thereupon, made a finding of $5, 000,00 
against the estate without any evidence whatever, to support 
sueh a findingo 

The judgment is reversed and the oause is remanded* 
RETTERSED AND RSMABDSD. 

HEBEL, J. AND DENIS E. SULLIVAN. J* 0ON0im« 



00*000«3$ to gjtiiJbflil jp BbBSL ,aoq0«T»i(* ^ituoo «rfT *xtiJtirs »«w 
tioqqtsu o^ ,i9V9;fftri-(? ©onsblT© y**^* tuoA&tv e^Btae ail* ^eajtjss' 

,g;.. uUa csasaris 



38168 

THOMAS HOIST OOMPANT, a 
corporation, 

(Plaintiff) Appellee, 

▼♦ 

WIU.IAM J. NEWHAH OOUPAHY, a 
Corporation, et al«, 

(Defendants) Appellants, 



FROM 




SUPERIOR OOURT 



OOOK COUfiTY. 

28 5I.A. 5 85 



MR, JUSTICE HBB2L DELIVERSD THS OPINIOI OF THE COURT. 

This is an appeal by the defendant from a decree entered 
in the Superior Court of Cook County hased upon a bill of oomplaint 
filed by the plaintiff seeking to establish and enforce a trust. 
Ho evidence was introduced, but by agreement the ease was heard by 
the court on the allegations contained in the bill and answer and 
on the exhibits attached. The decree entered by the court finds 
that the contract involved in this litigation created a trust of 
the funds derived froa the Sanitary District; that the plaintiff is 
* o^etui que trustent of said fund and entitled to be paid out of itj 
that the defendants had been guilty of a diversion of funds fron 
said trust to the extent of #3>037,51, and are, therefore, personally 
).iable to^repay this to the plaintiff; that defendants have stated 
they will continue to divert the fund which in the future will 
become due the plaintiff, the total of which future threatened 
diversions will aggregate |4,754.19» 

The decree orders that a money judgment be entered against 
defendants for $2, 037, 51 and costs, and further, that an injunction 
issue against defendants, commanding them to desist and refrain 
from diverting, using or disbursing any of the funds which the court 
finds in this decree should be paid to plaintiff each month out of 
the fund provided for in said contract which amounts to ^679.17 each 
month, beginning December, 1934, and continuing thereafter for a 
period of ten months. 



\ 



mm. Jh^iHA \ 



T?: 



.YMUOO 



S8G.A.I2 8S 



8dI8S 

/» ,YaA<lKO0 T8I0H BAMOHT 



iflgKoo lo Xllcf r- noc;a Jbocscf y^hj^'O'^ ^tooD Iko tiiKsD 'xotr9Qtxe 9tit at 

,iBint V 9010^X19 has dBiIcfe#89 c;^ ^nljf^aa Jtltalsilq ^it x^ boLtt 

i<J brs^Bd cow 9&M9 &di is99fi^Tgs x^ iud ^b^cubQiiai 8.sw oo«©!>1t9 el 

fcne i«waixj3 bn.e IlicT »fit al bmil.Ficioo anoitsgelXje ©rfJ itc tisjoo eift 

Ic iBiJii B b9tJf9i.ti ttQlta-^iiftl Btdi nt Bsvloviti tosttato 9dt *j8rf# 
el ?ll*nlflc erfrf ^'^.rfj ;*oiT;feiCl' YX«*Jtn££ aritf moll l>svli»fc tbnu^ erf* 

flsot'i sluHik 1o noianrsvlf) •? lo Ytllug nesii &.eii Biti3ta&l9b ari;t i-axfi- 

vrr-aoBTeq ,«ito^9i»xli »9t? ifie jie^VSOtSi lo ^natxe exi* : ■/ :tni;ij' JblsB 

-.*'te STfiri B^nsfcneleJb **ri;f jllliXfi^Iq »rf* o* &l£ii v 3lcfi5H 

iliw n'wiu'i ftri* ni ifeirfir bnwt 9d& Jit^vlh o* ©mii^aoi^ . r^dt 

7i«:%A b9fta9 ttd ta»iB:^bul x*nom .^ ip.dt eiObTo 99^ o-^^ aKT 
.;.>i^Ofli/t*'^ °^ ^*^* ,i»ri*Tj/i liaB ,ecreod bas XS.VSO^.' •::\tn i." ■.• 

'^t rfoitfw aJbAul »dt to xfl« giilsiifcff. ^ . . i^attxn'fJtb moil 

H..i=a VX«eV8| O^ rtiSl/OSUB riOiriw Jnnrir- >9fcivOTC btti;;^ 9X1* 

M tot T*rtB»ieri* jfli"" ?•+«'' , t cu i>niiuix^v.d ,ri*ao» 

♦srfifffofli fr'^+ "^'i bolisg 



It i» further ordered that defendants pay to plaintiff 
hl7, being ten per oent of plaintiff's total olaim, out of 
payments received by defendants from the Sanitary District, each 
month hereafter, beginning with the payment received by defendants 
in March, 1935, and continuing thereafter until the fmll amount of 
plaintiff's claim be paid« 

It la admitted by the parties in interest in this litigatioi 
that the question at issue rests almost entirely on the construction 
of the contract between Ready Qo» and Newman Oo» Prom this contract 
it appears that on September 24, 1931, Newman Go. entered into a 
contract with the Sanitary District fox the furnishing of all 
materials, eto« for the construction of the West Side Intercepting 
Sewtr Contract No* 4. Newman Oo# gave a performance and completion 
bond, with the Fidelity and Casualty Company of Hew York as surety. 

On February 5, 1933, less t|ian five months after the date 
of the contract, Hewman Oo» suspended work because the Sanitary 
District was without available funds to pay current vouchers to 
Hewman Oo* Fr<ai that date, February 5, 1932, until after the date 
of the contract between Hewman Go, and Ready Oo«, to-wit July 16, 1934, 
work was not resumed under said contract, and when it was resumed, it 
was by Ready Oo» 

It is further recited that the United States Grovernment 
through its constituted agency provided funds under certain conditions 
in an amount necessary to pay Hewman Go# the prices specified in its 
contract with the Sanitary District, but only for work to be done 
after the date of supplementary contract between Hewman Co», Ready Oo« 
and the Sanitary District. Ho part of such funds could be used to 
pay for anything in connection with work done or materials furnished 
by Hewman Go* to the time of suspension, February 5, 1933, nor for 
anything thereafter, except for work done and materials furnished 
after the resumption of the work* 



s 

♦.fclijq e<J ffilx-Xo e'tliifnl.sXq 
3X3 ■;jj,jil eifl"? ' ..-,.-.--. -^ a^jt5JhT:;8q Bdi x6 bo^tti&br esx jM 
aoiitu\tBtioc -si ■ u • -..i-.'. ^^Oicl/j sd-esi susei: *f> aoi^aawp «rf* t^di 

*o«T*iioo six!* flt^r' . -:- ."■ --^'isB. n^^aw&.9'' * — ^rtoo 9£f# lo 

9j.efc »d^ Tft^fi?; li^ntr ^V^tx «:•, Tiaoiixdsi , .<v- fl.ea«f9?! 

561 t^X Y-twt 3-iw-''- , - - ■ riBiureii aoaf^i-ec i-ciiiJ-aoo »xl:t to 

iti ^fcati-/^^ , ■ ittu hsmjBSti ton «jwr irrow 

OO YbraA ««pO fliMBweii rtasratibci i-*Aii»Wt;yo x^^*''^®*'®-^fi<^ry® *o 9*j?t> ©d* Tc»#tr 
0* beau ftd bXuoo ekHf/t rl^ v -Jtrrd-alti YTJSi-JliJ.^S »dJ b'' 

i>©d8iir54rt »X«in0*ii« to axioi) ^liow xitfi'* woid-oertaoo ai •^iif*x«* 'xol v^ 

boditintcrl 8XijJ:«»*50J brtA eaoJb iaow toi tqr»ox9 ^isilamari* aniri^xfli^ 



Due to its inability to obtain the neoeasary fvinds with 
which to pay the oost of labor and material to be used in the 
parformance and ooeapletion bond, Newman Go« was unable to enter into 
the required supplemental oontract and proceed with the work* 
Therefore, Newman Oo» faced a cancellation of the contract and a 
new award* 

Newman Oo. in order to avoid oanoellation of its oontract, 
made an arrangement with Ready ^q*, with the consent of the 
Sanitary District, whereby it assigned to Ready Oo* all its right, 
title and interest in and to the contract between Newman Co. and 
the Sanitary District, and in all the tools, plant, and equipment 
then on the site of the work and to all monies due and to become 
due to Newman Co« fox work performed* 

The Ready Oo» then entered into a contract with the 
Sanitary District to complete the work provided for in the contract 
between Newman Oo» and the Sanitary District and furnished the 
neoesaary performance and completion bond* But Heady Co* undertook 
this only on certain conditions, which were required for its 
protection, and which are set forth in the oontract between Newman 
Qo« and Heady Oo* 

These conditions were, in substance, that all monies due 
at the time the contract was entered into and to become due there- 
after, should, when and aa paid, be deposited in a special account 
to be opened in such bank as Ready ^o* should designate, ajid that 
no money should be drawn from said account except on checks or 
orders signed by Michael Heady, president of Ready Oo* or by such 
persons «« he might designate; ths.t the money so deposited should be 
used to pay for labor, material or other items arising under and 
out of said contract with the Sanitary district and other payments 
thereafter set forth in said oontract, except that after all the 
things called for by said contract had been completed and accepted 



dttm mbaii'i rrssssasa :..:'.+ i.i-:,Jd"o o..t y.t;: Ilc'rni r^it of 3.uG 



•iic. ... 



SEC" 



•i-fr.LMf X ••5;*c/;"i, 












... <n^ 






. ./nod aol*'^ \'~"" 






-©T8ff# SX/fc •BOO- oJ'fli Cj? 



■'-■/IS '{wilU^i- Cli 



4 

by the Sanitary district, and all labor, material and other itoas 
arising under and out of eaid oontraot had been fully i».id, Ready 
Oo* should receive $75,000 as full oompenaation for its under- 
takings and obligations and the balanoe should be paid to Newman 
Go* or to Newman, personally, or to sueh other persons, firms> eto», 
as fiewiaan might designate* 

According to the allegations of the bill of complaint 
admitted in the answers by the defendants, plaintiff entered 
Into a contract with Newman Oo, on December 15, 1931, about one 
and one-half months before Newman Co* suspended work. Under this 
oontraot Thomas ^levator ^g« furnished labor and material to a 
total prioe of |3, 591*66 and assigned this claim to plaintiff. On 
January &, 1932, plaintiff sold Newman Co« one used hoist for 
13,200, payable within thirty days, which sale was mads by a con- 
ditional sales oontraot* and no part of this money has been paid, 
by the Newman Go* 

On Deoember 3, 1938, April 1, 1933, August 1, 1933, and 
Oeoember 1, 1933, and April 3, 1934, the ^hCMUts Elevator Oo» served 
OA the Sanitary district a notice of claim for sub-contractor's lien. 

As to the following evidence there is some conflict: It 
is alleged in the bill of eomplaint that on June 38, 1934, Newman 
Oo* through its president represented to plaintiff and to Thomas 
£levator ^o« that it, Newman Cto,, was unable to complete its oon- 
traot with the Sanitary I^istrict and wished to assign its interest 
therein to Heady Oo*, and th^t said assignment could be made only 
with the consent of the Sanitary i^istriot, whioh would withhold 
•uoh consent unless all claims for meoh8Lnio*s liens against said 
oontraot were released, and if Thomas ^levator ^o, would release its 
eladms, Newman Co* would make it one of the terms of its assignment 
to Ready Oo* thnt plaintiff and Thomas Elevator ^o* be paid the 
full amoTont of their claims out of the proceeds of said contract* 



t> 



Xi^eff <*i«<I tJtXw^ fy 

i^^^izo lti.n. . .as&aalr ^o^«i^^ erf* xix r..*«ri«fc^ 

aid* .^nU .ixo. I«.^n«^.. ^ ^^^*^ «^^^«^ *^^^*^ "^^"-^"^^^ *"* 

^a<.o , i<i Btm ^^ ^ ^^t nl^U^ ^l^sxm .OC^M 

,I>i*q fXBBd ^nA x^ao«. ^l^t to .^x,.q on &n. ,;^ae...t^o X.noi*ifc 









5 

The plaintiff further alleges that Thomas Elevator Co, 
believing and relying upon said representations, on June 28, 1934, 
executed and delivered the release to Mewman Oo# for use in securing 
the consent of the Sanitary District to an asaignment of Newman Oo» 
contract to Ready Co., which would hind Ready Oo» to pay hoth claims 
out of the proceeds of said contract and receive the assurance of 
Newman Go*, through its president, that the release would only he 
so used and that he Newman, would procure a. written acknowledgment 
from Ready Oo# of its liability to plaintiff and Thomas Elevator Co, 

% the answer of the three defendants they admit that 
Thomas Elevator Oo» executed the release and delivered it to 
Newman Go,, but deny that it was given or used in securing the 
consent of the Sanitary District to the assignment of Newman Co, 
contract to Ready Go# and state that the release was obtained for 
the purpose of getting Ready Go« to accept said assignment* 

By the answer of Heady Oo« and Ready, personally, it is 
stated that they had no knowledge of what Newman Oo<»> or any of its 
agents, stated to plaintiff in this behalf and these two defendants 
state they never agreed at any tim© that they or either of them, 
would bind either Heady Go* or Ready to the payment of plaintiff's 
claims* It is further stated that Ready Oo« agreed to make payments 
on said claims only out of such part of the proceeds of said 
contract as would reuMiin after Ready Go# had been reimbursed for 
any and all advances and for $75^000 in addition and that the rights 
of Ready OOti should be prior to plaintiff's rights and that Ready 
Go* should have the first and superior right to all the monies, 
warrants, or other evidences of indebtedness given under said contrsot 
to reimburse Ready Co* for any and all advances and for 375,000 in 
addition, 

Newman Go«, one of the defendantf, denies that through 
Its president, or any one else, it was stated that the release would 



•dO ToJsveia a.FajoifT ;?=rf* b9^9LI& xsid&'tjjl tittfils 
Sfliiims* «1 «aw i usanrsK o* 9ai?3X9'r ©ri* fcaireviie.b ban b9iuomx9 

to socvTi'SS": ^rl;}' i5vl90Si £>nB d-o^T^noo Jbi/se lo &b&&&c- o tiro 

•tf tXfio bluer 9e;--el'^" Si^::* ..;-nt <i-f''9ftx©9Tq 8*i ri3siJOa4* ^.o 



•if* 3nltxjt>.98 at l>9&0 rto n:^,, . d^ xa».^- 



,.t38«O0 



t*11:ttatflq T:c Jaawv^r. ^irr 
= -^"%«X«q fti.'?t!F o? hoe., » 
blnB to e£>960or:c 
»o1 JbftaTtrcrelw a»9(i 
f*' ©fft *firf* imp aoiij.^^ 

^esJtiton »ri* II* ot c. .^o.^. 
M7;/noo Jc>iR» lebrfju n«vi^ 9s9nbfii'i 



.ill oiv .b?r. y*ij.; ■ . ; ;•■: 
.ir-tB ,a*a98B 

„^ lo *uo xLa0 asi«I» Mas ae 

tsjMt.b aixm-^j bIsjQrv «« .tOftT:*floo 



i>j,ijoff 9u»^l9t ftff* ^^if^ b9Sv:te ii~^vi m j. ^-^c^m-^ uiiu <,x^.. ^v ^aneMesxq a*i 



6 

be used only to seoure a written aoknowledgment from Ready Co. of 
its lialdility to pay plaintiff ox Thoaias Elerator Oq,^ and Newman 
Co«» states that the president » Newman, showed them a oopy of the 
oontraot "between Newman Go* and aeady Oo» and that this contraot 
contains all the agreements and assurances made with and to 
plaintiff and the Thomas ^levator Co* 

The contract in question is set forth in the bill of 
complaint, wherein it is alleged that on July 16, 1934, Newman Co« 
entered into a oontraot with aeady Oo«; that in paragraph four of 
the contraot it appears that Newman Ooa agrees to obtain an agreement 
from plaintiff that it will extend the due date cmd maturity of its 
claim as follows: That plaintiff will agree to accept ten per cent 
of its claim per month, the first payment to be made ninety days 
after the first voucher is issued, and ten per cent thereafter until 
paid in full. It further appears, and it is not disputed, that the 
first voucher was issued in S«9tember, 1934« Consequently, it is 
claimed by the plaintiff that the first claim would become due in 
December, 1934* 

The plaintiff contends that paragraph four of the contract 
between Newman Co» and Ready Co« determines its right to recover for 
the amount due, and in construing this fourth paragraph the plain- 
tiff's position is, that when Ready Co* received its vouchers from 
the Sanitary District on account of the resumption of the work 
provided for in the contract, the plaintiff was entitled to the 
amount due, payable at the rate of ten per cent per month until the 
claim was paid in ftill* It would seem from this contention that 
plaintiff's theory is th^t by reason of the fact that vouohers were 
issued by the Sanitary District to Ready Co, for work and material 
furnished by It, the liability of Ready 0©, is fixed and it is obligBd 
to pay SA Installment each month until plaintiff Is satisfied. 

To properly construe this contract we must examine the 



"io .oD Y^e»H mo nit fncm^bslfKHiiQn J3»**itrw s stir^SB od- xXao b»6u »cr 
*Oi»T*aoo sic" . - : ••? rt9sw*«d ^Ofl:[*i»oo 

,:, . , ,1 Yi^t;L no d-jBifd- XksgaXXfi ex tx rtieTSrfw ^tntn^lqmoo 

^ji»& ttq £t«i' a Xliw l^l*flijsXq iSTTdlXol: »« sRiflXv 

erf* tejii ^bBiuqBlb tact si ;fi • , I .XXi/l «i bteq 

•i>sex «?«cfBifto«a 

sol T8voo&a o^ jfdgii e*i: 83Xiittn>*"»b •oO x^Bef Bar. rOO nswrsK C88w*»€f 

i-xo?* oxi* lo noi:^oiflu8^) -; ^nxrcc -tilt 

ads iitats liiaGta laq ;fac. » »i*fc' faaomM 

sTi^w 8T»ri««0V *«il;f trmt 8i '%lX*ai;8Xq 

i%iXcfo si *i Itfiii l>87cn 8l -0^ ^fppfiH \o x^iXicfjpli arf* »*2 ''Cd I>8d8iittif^ 
•l)8il8X*98 «1 IHtatrSq Itim aiaoa rfo r* ;J/r»ffiXX8tf-8ai fl« X«<1 o^f 



7 

terms of the paragraph on which the plaintiff relies, and. In 

doing 80, we find at the end of paragraph fo\rr this significant 

Qtatesent ! 

"It being understood, however, that in no event shall 
Ready Oo« become personally liable therefor, or for any 
part thereof." 

Applying this language it would be but reasonable to assume that it 

was the intention of the parties th^t these claims mentioned in 

paragraph four were to be satisfied from the money received from 

the Sanitary District, and that It never was intended, from the 

terms of the contract, that Ready or Heady Oo* should assume a 

personal liability for the payment of the claims against Newman 

Co. by furnishing means for the performance of the Sanitary District 

eontraot» 

There is evidence that vouchers were received, but in 

what amoionts, the record is not clear* The record does disclose 

that Heady Co«, after it resused work under this contract, expended 

liao^ooo. 

In answer to plaintiff's contention, the defendants say 

that oonst'ruing the contract as a whole, it was the intention of 

the parties that Ready Co* was to be reimbursed for monies expended 

by it in doing the work, and in addition was to receive #75,000 

out of the proceeds of the Sanitary District contract before it 

was obliged to use the balance, if any, in the reduction of the 

claims of the plaintiff* In support of this contimtlon the defendant 

points to paragraph eight of the contract, which is in part as 

follows : 

"And the parties hereto agree thnt the fact that certain 
agreements have been made as to specific creditors, afore- 
mentioned, shall not be in any way construed to mean that 
Ready Co., in any way, admits that they are creditors, nor 
that they have any right in whatever monies, warrants or 
evidences of indebtedness may be paid or given as payment 



t 

tojsol^tti^tt Bit-:: qfiiaAisq to £>n® s nil: •» ,06 gaioA 

cl Mnoi^jttiac: BmXBlo ©BSifS' d^'^ri* S9l*i:^q ©ri* "lo xmitfcaitjil exit aisw 
cotI bsvtnoaj. \9ff0ffl 9ri* fflcil Joei'^el^f'jsa ad o.t et&w twoI \cfff/JTs«T«q 

ttj8J«r«a fBaisv,^^ aiai:^ Jaem*^^ arf^ tcol \:JJ:Iicf.siX Xs/io8'x»q 

«tOBT#flOO 

»«oXcBii) 8 30& broo&"' * roofn 9ri^ tB^flwoiBa i&dm 

•OOOaOaXl 

0C0»2T!^ erlaoet o.t bjbw floX#l^*:!? rr < ^ SnioJb ni #1 ^^ 

tt ©tolecf ^oBTitnoo rf-^.tT.t^t 'tc eJb9»ooiQ Sift to tiM 

9zJJ Tto ncttcub^- t , >i: taoasiBd" arid- bbu ot hvglido eaw 

hflBfc/ielftfc tdt ttoittrntnco nlA& ^o JTorvq-i/r nX ♦tli^nlaXq arft to fmipXo 

KB tiFXi fTi el rioirivr ^foBitnov :j ^rfglg tfqjR'ra.p' ■ ' j 

:ciyoXXol 



ton ^Gto^lbno ' -. «i v*^*-* V. 

10 BtUSTTflW tS _ - aVBr: Tf^fi* 



under tbe oontfaot between Newman Oo. and Sanitary 
District, prior to the rights of Heady Oo» It is 
understood and agreed, between the parties hereto, that 
aeady Oo» shall have the first and superior right, to all 
the monies, warrants, or other evidences of indebtedness, 
given under said contract between Newman Oo« and Sanitary 
District, to reimburse it for any and all advances and 
for the |75,0(X) agreed to be paid as aforesaid*" 

Plaint if f»8 reply is that this provision of the contract applies 

only to paragraph eight, wherein certain specific claims are 

mentioned, and the rights of these several claimants are restricted 

•o that Heady Oo» might be paid out of the proceeds of the contract 

for its claim for services rendered, as specifically mentioned in 

the contract* 

It is upon the same theory that paragraph four is called 

to the attention of the court as being a complete paragraph, and 

that under its terms plaintiff is entitled to recover the amount due 

from Ready Oo* or Heady personally, provided payments are made, and 

that receipt of these payments obligates Heady Oo» to settle this 

claim* 

It is to be observed in examining the various provisions 

of this contract that it was the evident intention th-^t Ready Co, 

was to be compensated for the work performed and material furnished, 

out of receipts of the Sanitary District, before the several claims 

designated in the contract were to be satisfied* It is further 

borne out by the provisions of the contract that Ready Oo. was not 

to assume a personal oblig- tion to pay any of these claims* This 

is further emphasised by paragraph eight, heretofore mentioned, in 

which it is stated in clear language that Ready 0©* has the first 

and superior right to all the monies, warrants, or other evidences 

of indebtedness, given under said oontr'^.ct between Newman Oo* and 

the Sanitary District to reimburse it for arqr and all advances made 

by this defendant, and for #75,000, as an additional sum* 

It is a well known rule of law that a contract must be 



::j 
f ,i'i.Ji 20 ZO ^i ^ X, * 

.... .-L.! Ji , - ...ci 

%: . : ecf ■©■* ( . ..x 

•'i??It> ^f>.tf>A«R ciat'x&o ai»i»rf^y ^$^J.^ ri<f«Tti««'xi«j ©^ Xifl^ 

anoieivoaq sxioirr^v arfd" g/vifliaax^ «! bsinrsEfdo 9€f o# ai *I 
,cO i^mn e»rf* noitfxnjtKJ: *asfci;T9 erf? pf-- ;?i :i-3tld' 4'O.ex{)-flO0 Did:* I:© 
■ rf.inrj'* Iffi^tfj^aci tail? fcajarrot'staq 2C1C' <5l .&8#-«'8/i®^Q0 dcf o;^ cj&m 

ton e"^ < r'i.'& ^i.f.t to fisttoiaiTOiQ ari? X^f *^o 9ni€4 



9 

oonitrued from the four oomers of the Instrument and the purposes 

of the contracting parties determined from the whole of the contract, 

taking into consideration the thing to he accomplished and the 

manner of accomplishing the purposes provided for in the contract 

and the payments to be made and how to be applied. When the work 

was resumed by Ready 0©, \mder the contract, it was to be paid the 

amount due it as the work progressed. The plaintiff, however, was 

to receive its 10^ installment payments provided for by the contract, 

from the balance of the fund remaining in the accoxmt of Ready Co. 

after the deductions, as above ststed* The #75,000 mentioned in 

the contract was to be retained by Ready Oo^ only upon the completion 

of its contract, if the fund proved to be sufficient to satisfy 

this amount* 

For the reasons stated in this opinion, the decree of the 

Superior Oourt is reversed and the cause is remanded with directions 

to that court to proceed in conformity with the views herein 

expressed^ 

mOBXS H£?SK3E0 AND CAUSE 
RSMAHQSQ WITH OlRSOTIOIfS* 

HALL, P«J« AND OEHIS £• SULLI7AH, J. CONCUR, 



iio« »ri* n»xis ♦i>aiXqcr/? sc' od- woa bne ajb^y a^flSKX*'? *^* J^a* 

5rfi J^-laq »ci o? 8t<« ti e^o^stJ-noo adit n^iljAif *o^ ^bsay. fd iD«aLU««'i ajw 

,:,. \ '^ lo iaocooj^ 9^;S at '^XaisiaQx imul adt to -36aBi>«C! ari* tuoil 

tt«-ti^i?.« o* iaalotllun ad o* I>9^voiq: ^iwl: arf* fi: 4*ej?'£jrj(ioo 8*1 5© 

zactiotnib dJti-w bsbctem'si at atusc ^tit J&xsge ijssicovdi: «i tiJt/oP TOiT«q»£ 







COOK OOUMTY, 



38333 

In tHe Matter of THE ESTATE OF , . „ .^ 
JAMES THOMAS KELLY, Deceased, ) /"ilRROR TO \ 

PEOPLE OF THE STATE OF IIJ.INOIS, ) PHDBATE OOURT 
Defendant in Error » 

T« 

HIOHOLAS HADia, 

Plaintiff in Error. ) ^O D loAo 5 85 

MR, JUSTICE {JEBEL DELIVERED THE OPINION OF THE COURT. 

TMb writ of error directed to the Probate Oourt of Oook 
County w??^ iaaued upon the request of Nicholas Radis for the purpose 
©f reviewing the record in a contempt proceeding, wherein this 
respondent, togeilicr with others, was found guilty in the Probate 
Oourt of Oook County and committed to the County Jail for a period 
of one year, vinleas sooner discharged in due course of law. 

This proceeding was instituted upon a petition filed in 
the Probate Oourt by Jack Rubens, an investigator for the Public 
Administrator of Oook County. The petition sets forth that a direct 
contempt had been committed by reason of the fact that the document 
purporting to be the Last TSill and Testament of James Thomas Kelly, 
deceased, was a forgery, and known to all of the respondents 
connected therewith to be such. The petitioner further named the 
persons involved in the matter and prayed that the Oourt might 
require the persons named to show cause why they should not be held 
in contempt of the Probate Oourt of Oook County, Illinois. 

Upon the filing of this petition, the oourt proceeded in 
a summary manner, and heard the evidence of witnesses, irtio were 
interrogated, together with persons whose names appeared on the docu- 
ment as attesting witnesses, and one of the respondeats, Julixis fi. 
Waitohes, who as the attowwy, filed with the clerk of the oourt the 



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1.3 



Ivr b9i:.'\: ^Y^f^OifJ-jT. 9£f;f er oriw t8«rioJl.8W 



3 

purported Last Will and Testament of James Thonaa Kelly, deceased, 
also presented the petition for proof of the Will and Letters 
Testamentary in the Estate of James T^oaas Kelly, also known sis 
James T. Kelly and as Thomas Kelly, deceased, on February 26, A. D. 
1935, praying that the will be admitted to probate and that letters 
testamentary be issued textotwi after proper hearing and proof, and 
that the petition be set down for hearing on May 16, A* D. 1935* 

At the conclusion of the hearing upon the matter of 
contempt, the court entered an order from whieh it appears that 
James Thomas Kelly departed this life on or about the 36th day of 
February, 1335; that Julius P# WaitehUs appeared in the Probate Court 
of Ooolc Oounty, Illinois, on the 6th day of Mareh, 1935» and 
presented a document purporting iBf its terms to be the Last ^iU suid 
Testament of James Thoma* Kelly, deeeased, which purported Last Will 
and Testament bore the signature of Paul P» Zalinck and J«ihn 
Dailyde as witnesses thereto, and which said purported Last Will and 
Testament named Bella Butmajti and this respondent as executors thereof; 
that at the time Julius ?• Waltches filed the purported Last Will 
and Testament of James ThooRS Kelly, deceased, he also presented 
to the court the verified petitions of Bella Butman and this 
respondent, the persona named in the Will as executors thereof, asking 
that the Will be admitted to probate and record and th«t betters 
Testamentary issue to them in the premises* 

The Court thereupon found from the evidence heard in said 
cause that the document said to be the Will of James Thomas Kelly, 
deceased, and which was presented to this court as such, and which 
bore the signatures of Paul P. Zalinok and John Dailyde as witnesses 
to the execution thereof, was not actually witnessed by these persons 
in the presence of James Thomas Kelly and in the presence of each 



I *»•«•••* ,>cXX»"i CBOOit^' B3>tG^-I, to ^^^efts*!s bstTcqtaq 

ea^i-^oJ iMM! lili^ Brief to too^q to^ eroiJiJ^H aa« i>#;^*i -!?>''■' cMlr 

■JR awoaH (»el^ tXU9>l e^no^T edcttj»l> ^o spates 9ifi^ ai Tt'^^iXMiis^a*? 

,3C€i . , X T<3* am "Sfiitisini lox avot #6» trf a&lilit>q ndt t»sit 

Jb/i« tfisei trioxpM "^o ^rpfe if*® actf ao «»>i;oni:XXI tY^^st®^ alooO ^ 

has £Lx u«i«# sti y«^ ^alt^o^isp^! sttwMcumo* fi J^tiiwsvq 

XXi :>9;fToq'roq rioiff?? ^Aseraoa' ^ f-ronT B&»Bit to &a93ijntti9l 

nriot. bur iofliXn.^ .'i XwrH t© s-xir^rfiiiSJtB •f^* *^<xf *n«>«UJif8«T lijcui 

rkfiis lltf: fund b^t^aqrm blait rfolilw ba& tOtsmwit »««e»fit*lw «« ofiyXiiJO 

ItosTdff:!- ezoiuoexB e/^ ;fael)neqB»7 ctiift has nimtiiB. MgM& bmu^a inaantw^f 

Hi-'-, r&nj btstiorti: od^ttm"^ .^ euXXaT, «iiX<* »ia^ #« *«d* 

h»^n9e«?q oeXn sd ^bsBs&o&b ^ilL&fi a,a!KiOiflT »eNi^ti to ^imtifi^BOT tetf 

li^BJC ,loerrscf* E^o;fua»x« 8b XXiW arf* ftl fcajB.cji eno^'sec r^ll;^ ^^iftlitmwtwii 

rfo/d-v I;a<^ ^riowe c t i^Twoo altft o* te&a9tf9rc B*^« fltoirt^ tea «J>9iuBto*Jb 

mnytBsuiiif ^jh whtlisG arfol. bar 3lorr*. s»Ttr*«iis-t» 9«iJ^ •^M* 

•-^ag 99Bsli fd hessextJj-iir x-EX^Jtf*»« tor i o-jieff* aoJ:*usfr«x» edtf o* 

f(:>-9 ^o 9onn8»rra arf* rri brrs xllnH eaaawfT aeiseli 1© &o«»B»T:cr nrit nl 



3 

other, as required toy statute, but on the contrary the oourt fouxxd 
the fact to be that Paul P« Zftllaok and John Dailyde affixed their 
signatures thereto after the death of James Thomas Kelly, the said 
John Dailyde having signed said doouaent in the undertaking est ah- 
liahmcnt maintained in the City of Chicago by the respondent, John 
J« Bagdon&a, and the said Paul P, Zalinck having signed the document 
at his home after the death of James Thomas Kelly at the request 
and instance of this respondent, Hioholas Radis* 

And the oourt entered a further finding from the evidence 
that all of the persons najaed above were fully advised of these facts 
prior to the date when the respondent, Julius P» Waitohes appeared 
In ooiirt and presented the Last Will and the application for its 
probate to the Oourt, and that the persons herein named were scheming 
to perpetrate a fraud upon the court and intended to cause the court 
to admit to probate and record a dooiiaent which the named respondents 
knew on said date was not the valid Last Will and Testament of 
James Thomas Kelly, deoeased* 

Thereupon the oourt found the said respondent Nicholas 
Radis» together with the other reppondents, in contempt of court, 
and they and each of them were sentenced to the County Jail of Cook 
County for a period of one year from the date of the order. 

The respondent Nicholas Radls makes the point that the 
Probate Court of Cook County erred in not discharging the respondent 
on his sworn testimony in open oourt, denying his guilt. Upon an 
examination of the record, filed by this respondent, we are xinable 
to find that at any time during the hearing this reppondent objected 
to the admissibility of evidence of witnesses on the theory thst he 
had purged himself by his testimony as a witness at the hearing 
before the court. So the question resolves itself into whether the 
hearing before the oourt was in the nature of a direct contempt which 
assailed the dignity of the court. 






Its &49%*a} a»%uiimBtB 

r-.e J-^®.4gia ^irja£[ »fe^IiBG miol 



gj^Xj>iioi(?i 4J4i©£iaosL*»^. ^'^^^ '*® ^oitPiffitai f>«« 



atKddos ■ 



,.:fiii,.:,^Q&b ,,'^Xlaj( a^s^oMT «9ajBL 



•fiiusfC «&J .''■'3 eev ' 









The attorneys who appear as amlous ourlae inrite our 

attention to the oase of The People v. -Whitlow. 357 111, 34, wherein 

the oourt speaks of eontempta oonanitted in open court, or a contempt 

that is not in the presence of the oourt, and says: 

"Upon the oommiasion of a conteapt in open oourt, it is 
competent for the ^udge to proceed upon his personal 
knowledge of the faota and to punish the offender sum- 
marily without entering any rule against him and without 
hearing any evidence, ♦ * • Mishehavior constituting a 
contempt committed in any place set apart for the use of 
any constituent part of the oourt, when it is in session 
is deemed to have been ooiraitted in the presence of the 
court, ♦ * ♦ The order adjudging a contemner guilty of 
eonteapt oonuBitted in open court must set out the f^^^ots 
constituting the of ense with sufficient particularity 
and certainty to show that the court was authorized to 
make the order, • • * In a oase where the proceeding for 
contempt is for acts committed, not in the presence of 
the oourt and not in furtherance of the remedy sought or 
In enforeement of the court's orders or deorees hut to 
maintain its authority and to uphold the administration 
of justice, if the party should a,nswer denying the alleged 
wrongful acts, his answer is conclusive, extrlnsle evidence 
m&y not be received to impeach it, and he is entitled to 
his discharge," 

In the oase of People v, Sheridan. 349 111, 203, the 

court stated what would be oonsidered a constituent part of the court 

and said tkat If the alleged conduct of the persons charged took 

place befoiM such constituent part of the oourt it was therefore la 

the presence of the court and a dlreet contempt. The oourt further 

said: 

"The first contention of defendant is that the petition 
filed by the State* s attorney was insufficient to charge 
him with conduct constituting contempt of court because 
It did not contain an allegation that the grand jury was 
Investigating any complaint or charge of crime committed 
In Oook Oounty or an allegation of the object of the Ques- 
tions asked defendant when he was before the grand jury. 
It Is a sufficient answer to this contention to state that 
the alleged contemptuous conduct of defendant was before 
the grand jury, which was a constituent part of the 
criminal oourt, and his conduct was therefore in the 
presence of the oourt and if contemptuous was a direct 
contempt, and it wag unnecessary to file a petition or make 
a formal charge by affidavit in order th?t the court might 
punish him for the contempt. ( People v. Cochrane, 307 111. 
126; People v, Sherwln. 334 id. 609.) since it ws not 
neeessary or essential th3t the petition be filed it Is un- 
necessary to consider whether the allegations of the petition 






* 



'Oja«(iHsrsq 9df nl ton si jfisdt 






4 * 



TO. 



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-liit 1.0 






■,.■-■ eirf 
,ij?il:r bins bam 



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.ill 



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that was filed were sufficient to charge conduct con- 
stituting contempt of courts * 

From the order entered by the court, we find that the 
respondent in this case, together with the other respondents found 
guilty by the court, was present in court when a document purporting 
to be the Last Will and Testament of James Thomas Kelly, deceased, 
was presented which dooitment was not properly signed by two 
witnesses, and the witnesses who did sign, were not witnesses to 
the execution thereof in the presenoe of Jaates Thomas Kelly in his 
lifetime, and in the presenoe of each other, as required by law* 

From the order, the court further found that the appearanca 
in court for the purpose of filing the purported Last Will and 
Testament of Jaanes Thomas Kelly, deceased, was in furtherance of 
a soheate on the part of the respondents naaied to perpetrate a fraud, 
aftd that the oontemptuous oonduot of this respondent, together 
with the other named respondents, when the will was presented in 
the court for purposes of probate, took place in the presence of 
the court, and being a direct contempt, the judge of the Probate 
Oourt aoted properly in exercising his jurisdiction to pass upon 
the acts of the respondents* 

It la evident from the record th'^t the court was imposed 
upon when this alleged Last Will and Testament of James Thomas 
Kelly, deoeased, was presented* 

The only real question involved in this proceeding, so 
far as this particular respondent before us is concerned, is whether 
the order is sufficient in its finding of fact to sustain the 
court's position in finding this respondent guilty. 

It appears frwi the order that Hioholas ftadis was present 
in the Probate Court on the day in question when one of the 
respondents presented and filed with the clerk of the oourt a docu- 
ment purporting to be by its terms the Last Will and Testament 



-fl9f> JOjy^tt-O S 






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a^.brrocreOT 






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6 

of James Thomas Kelly, deoeased, sjid presented a signed and verified 
petition by Bella Butman and Nioholas aadis, this respondent, who 
were named in the Will as executors, asking that the will be admitted 
to probate and record, and that Letters Testamentary issue to the 
petitioners named* 

It is clear from the order that Nioholas liadis appeared 
in court and was present when the alleged Last Will and Testament 
was presented to the cleric of the court - a constituent part of 
the court - and that the same was prepared as a part of and in 
furtherance of a scheme and design on the part of the respondents 
named to perpetrate a fraud upon the court. That, in our opinion, 
would of itself be sufficient, froa all the facts and cirouttstHiioes 
as they appear In the record, to justify the court's order* 

The question is called to our attention that this prosecu- 
tion was founded upon a petition of one Jack Rubens, and was not 
supported by a sufficient oath or affidavit. If we turn to the case 
of The People v. Sheridan. S49 111. 203, we will find, upon a like 
question, this statement by the court; 

"Stnoe-lt W9.8 not necessary or essential that the petition 
be filed it is unnecessary to consider whether the allega- 
tions of the petition thst was filed were sufficient to 
charge conduct constituting contempt of court." 

In other words, the hearing being before the court, it was competent 

for the judge to consider the contemptuous conduct of the respondent 

before the court, as well as in the clerk's office - a constituent 

part of the Probate Court - and ptmish him for direct conteuqjt without 

the filing of a petition or the making of a formal charge, supported 

by an affidavit. 

Since the question arises largely upon the order of the 

court, we have examined the suggestions made by this respondent, and 

are of the opinion thst there is sufficient in the order itself to 

justify the court in finding this respondent guilty and in fixing 

the punishment* 






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bar ,>^«^nuv189t »Jt<ft ^rf atjfrc 9ao ihsfv^^^ist tMft fceislw«r» evfrrf e^ «tttfie 
SAlxll ai fcn« t?Xi«S *«? .ffi&fin at ;t^uo© ari^ V^^^Oi^t 



7 

Upon an exaaination of the order of the court it is to he 
noted that the prooeeding is criminal in its nature and instig-ted 
for the purpose of Inflicting punishment upon the respondents for 
their fraudulent acts* Although it is true that the order Itself 
is not entitled in the najae of the People of the State of Illinois, 
still these respondents have entitled their sereral briefs and 
ahstraots, which are a part of the record, People of the 3tate of 
Illinois VB« the respondents here in oourt, so it is ividcnt that 
this is a orlalnal prooeeding and properly entitled* 

The case of The People of the State of Illinois ▼> Securities 
Discount Oorp *. 379 111, App» 70, has been oalled to our attention, 
wherein this oourt said: 

"The draft order indicates by the number it bears and by- 
its text that the proceeding for the contempt or contempts 
therein envuaerated was brou^t in the name and by the author- 
ity of the People of the State of Illinois, and, in our 
opinion, it is the order of the court in this cause. Under 
the oireumstanees we think that the manner in which the draft 
order was entitled was simply due to inadrertenoe and is 
inconsequential.** 

Uil^n the question of proper title, the oourt in the case 
of Manning ▼, Securities Co .. 342 111. 584, said: 

"As a preliminary question it is insisted that the several 
appeals are not properly entitled in this oourt. In Lester 
▼• People. 150 111, 408, 4t was held th^t ordinarily whetlier 
a oonterapt prooeeding should be entitled and prosecuted as 
an independent proceeding in the name of the People or carried 
on as a part of the civil proceedings to which it is incident 
is of comparatively little importance and that the practice 
is not uniform." 

W« are of the opinion th8,t the proceeding was criminal in 

its nature, and that the court did not commit error in its finding 

th&t respondent was guilty of direct contempt. The order of the 

Probate Oovirt is accordingly affirmsddf 

ORDER AFFIRMED. 

HALL, P,J. AKO D£NI3 E. SULLIVAR, J. CONCUR, 






X:. . " 

LT'fA HaOHO 



38266 

SYLVESTER ADMS and ROBERT BR00ZIN3KI, 
Appellees, 



APPEAL FROM 



EDWARD ZEUTSOUSL, 



Appellant* 




MUHIOIPAL COURT 



OF OHIO AGO, 

28 5 I,Ao 5 8 



1-1 



MR. JUSTICE HEBEL DELIVERED THE OPIHiOi OF THE COURT. 

Tbis appeal by the defendant is from a judgment for the 
right to possession in the plaint if fs» entered in the Munioipal 
Court of Chicago in an action of foroible entry and detainer. 

Plaintiff's action vas upon a purported lease, dated 
Koveaiber 14, 1934, for a store at 8458 Burley Avenue, Chicago, 
Illinois, between Louisiana Busoh, the owner, as lessor, and the 
plaintiffs, as lessees, for a term of five ye -rs from December 1, 
1934, at a rental of #75. per month for thirty-six months, :89« 
for twelve months and $85. for twelve months* 

Possession of this property is now and has been since 
Kovember 13, 1929, under lease by the owner, Loviisiana Busoh, at 
a rental of #110. per month in the defendant. This lease was for 
a five year period, to be renewed for a further term of five years 
at |115* per month upon service of a sixty day written notice of 
election upon this owner by the defendant of his intention to renew 
before the expiration of the term. 

Defendant's possession continued under a further lease 
from the owner, which was executed, in compliance with this option 
contained in the expired lease, for a period of five years from 
December 1, 1934, at a rental of 1115. per month. The owner, 
Louisiana Busoh, has received a rental of |115. each month from 
the defendant from the time of the execution of this instrument* 

The question in this litigation turns upon the plaintiffs* 
purported lease from Louisiana Busch, the owner of the premises in 

quest ioiu 



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ifi jrfOBUfi iicoxBXuuu ,a&iiwo »il;r \d aaaeX x-^ijuu «eS6i «5X i^cfstarvl 

»8*»I i^xiirul R x^hcw b^sjnltaoQ aoieeeseoq 8»*c9f5jndl©G 

a^l c^tx svi't lo ttoi'iSn -' fcanijR*floe 

■Orel: ff^aoK £to«ft Adllii^ !«> XcitjOMl'S » £M»Ti»oa'j B^^d ^ilOBuU jBiusiaiiroJ 
«#aa«tfXT^8al eirf* lo noi^iioara ori* Ic SffiJt* »ai ajcTl *ft.Bfai9l»i> erf* 
»«lti/ai«Xq 9Ai nocu aatuit noi* yl^iX Biff* at noi*a»«p »rfT 



3 

The facta reg^^rding the alleged execution and delivery 

of this lease are, subs t ant i ally, th'st plaintiffs signed the lease 

of November 14, 1934, and delivered it to Louisiana Busoh for her 

signature. The lease was signed by her and returned on November 17, 

1934, to plaintiffs' attorney Mr, Ryan, by Montague Brate, Mrs. 

Busoh* s brother* Mr* Brat* advised Mr* Ryan that the riders attached 

to the lease were not satisfactory. Thereupon Mr* Ryan prepared new 

riders to be attached to the lease, whloh lease Mrs* Busoh was to 

sign and return to Mr. Ryan* One of the leases was returned to 

Mr. Bratz, and a receipt for the lease retained by Mr. Ryan was 

signed, and is as follows: 

"Reoeived of Louisiana Busoh lease dated November 14, 
1934, covering 8452 Burley Avenue, v^ith SyJ Adams, 
for purpose of being held with lessors additional copy 
of lease and until deposit of 3525 made by lessee* 
When possession delivered exclusively to lessee, leases 
are to be delivered to respective parties. If possess- 
ion cannot be delivered to lessee or if lessor's title 
not good as expressed in lease, leases are to be held 
"by undersigned for oanoellation. This is not to be 
construed as acceptance of escrow by undersigned. 
£«orow will not be accepted until both leases delivered 
and eash deposit by lessee* 

(signed) Feden, Melanlphy, Ryan & Andreas*" 

Subsequently, the plaintiffs' deposit of |B10 made with 
their attorney was withdrawn by plaintiffs on December 15, 1934* 

From this record it appears that no further action was 
taken by the parties until this suit was begun upon the lease that 
was delivered to Mr, Ryan, 

In the consideration of the problems involved, it is 
necessary that the plaintiffs recover upon the strength of their 
right to possession, rather than upon the weakness of their 
adversary's right to the premises* The re^i question is) Have 
the plaintiffs an executed lease which was delivered by the owner 
of the property? 

The troublesome proposition which confronts this court 
concerns the receipt* It appears that a rider was prepared by 



o* eew rf08{r?[ •eiM aeesl rfoiriw ,98a^«X (fcfCt ^# 4>«t<sI©M:l'.a scf 0* ar9bi'S: 

:«w)XiOl ei2 ei bus. * bangle 



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jb»T0ViXeX' tiSo&feX tttfocf XXij£u; ^^^ xaal 

^fj bas 

ifd-iv »i^«B GXS$ ^o ;tX«og®l) *»t1:l*fiis;Xq ©li* ,-tX*xtiaArp»«<^Ar8 

-Hi »8J!»X 0rf* noqu n«a9<' a^^^' ^^^^ »-i^^* XX#aw 8»XJ*f.r4 *^^ \^ enttsi 

Tdiiwo 9Af jiS b»iS)-vtL^ olidw a»»»X fj*.tiit>«Bir» ojb Bttld«iJ8^cr •!!* 

txThi»q[o:tq 9Ai to 



8 

the attoxncy fox the plaintiffs^ whloli, as far as this reoord shovs, 
was not accepted and approved by the landowner. The conditions 
stated in the receipt were not performed, in that the amount to be 
deposited isatex tta terms was not fully deposited, but, on the 
contrary^ the sum of $63.0 deposited with plaintiffs* attorney was 
withdrawn soue time before this suit was filed. The receipt Itself 
does not indicate a completed and delivered contract between the 
parties* The deposit of |5S5 was not mad.e, and this is one of the 
eondltlons not performed by the plaintiffs, and further, the signed 
leases with the riders attached were not delivered to the respective 
parties, and the cash deposit as we have stated before, wsls not 

nade by the lessees* 

The defendant in the instant c^.ae is in possession unler 
the terms of an extension period fixed by a lease executed by the 
owner, in compliance with an option exercised by the defendant. The 
term of this extension lease and the rentals payable are as above 

stated in this opinion* 

The fact that the plaintiffs* contract was not fully 

executed and delivered, or accepted by the defendant, does not 

militate against the rl^t of the defendant to retain possession. 

Defendant's possession is established by the lease under which he 

claims right to possession, and, from the reoord, the court erred 

in finding right to possession of the property in question to be In 

the plaintiff* 

Other Questions have been raised, but it will not be 

necessary to consider thep,as we have concluded that the defendant 

is in possession of the property and entitled to retain possession. 

Tor the reasons stated in this opinion, the Judgment is 

reversed* 

JUDOMEIT REVERSED* 

HALIi, P.J, AND 0SNI3 K* SULLIVAN, J. COSOUR. 






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•taaxerai; 



,st eiiiic eg A •u<i ^aoAH 



38393 


/ / y / 


WILEY HITOHOOCK, ; 


U»p£cL^(^ 


( oapl al nant ) Appe 11 ee , 


ojiiouiT oouaT 


WINIFRED HITCHCOCK, 


OOQK OOUUTT, 


(Defendant ) Appellant . 


1 285 T A riJ 



MR. JUSTICl HEBEL DEUVSHED THE OPISIOH OF THE COURT. 

This la an appeal by th« defendant fr<» a decree entered 
in this oause» and from an order upon an intervening petition, 
allowing attorney's fees* 

By order of this court, there have been oonsolid'^ted 
for hearing Gases Mos, 38292 and 38393, In Ho, 38293 a separate 
oplnidn of this court has been filed* 

This action is based upon a bill in chancery filed by 
the complainant against the defendant to set aside a certain so- 
ealled trust agreement , on the ground of forgery* The cause wss 
heard upon the bill of cemplaint; the answer of the defendant and 
amendments thereto^ the count erolaim of defendant and the amendment 
thereto; the petition of the defendant for a permanent injunction; 
the amendment to the cross-bill; the affidavit of defendant for 
summaary judgment for all expenses, and the petition of defendant 
to rule on all her objections, and the intervening petition of 
Fred Holy for attorney's fees. 

The decree of the court finds: (1) that the parties are 
husband and wife, though living separate and apart; that oomplainsnt 
has been a school teacher in the Chicago Public Schools for the 
last fourteen years; that he bought a home in Chicago and had the 
title thereto taken in joint tenancy; th^^t defendant and their son, 
aged 16 years, reside there now; that after the complainant paid 
off the incumbrance on said home he opened a joint sf^vings account 
In the First National Bank of Chicago, about December, 1935; that 



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^f>t)tt9lt>t to aoi^lt^' ^<338ii»<jr :frri>Bi;i5Jbir£ x^ammn 

9Ai To^ «Ioorior olXdii"? 09f»«»li<' i t^f!©«»^'t Xooiio® jb nascf tjBtf 

»if;t l>aif IkiM •SJolriC nl ei. >Y fl.5»iJ^t;o'i Isjal 

?§fllTfl8 *nlot S! daadqd »«f iintfl Jbl-ps no ttttaaidnuont •dt llo 



9 

upon reoelTlng hla salary oheoks he was in the habit of endorsing 
thea and turning them over to defendant to deposit in their joint 
savings account, to be used for family support and maintenance; 
that said sums of money were never intended as gifts from oomplain- 
ftBt to defendant upon oomplainant's endorsement of said checks; 
that only in obmb of the death of oomplalnant was defendant to 
become the owner of whatever sums of money remained in said savings 
aooountj that up to June 35, 1932, said savings account had reached 
the sum of 111,000, but should have been |15,199, instead of only 
$11,000, owing to the fact that defendant had deposited the total 
sum of M,199, in her own name, instead of the joint ao count » 
unknown to oomplainant; that on Jf\me 35th, owing to a run on the 
bank, said parties withdrew the sum of #11,000 out of said bank 
and on June 36th deposited the sajae in a safety deposit box with 
the Foreman Safety Box Company vaults; that both parties have keys 
to said safety deposit box, but were not *«► draw out any money 
eieeept in the presence of eaoh other; that said sum of $11,000 Is 
&OV en deposit in said aafety deposit box* 

(3) That the next day after said sum was so deposited, 
the defendant drew up a so-called trust agreement in her own 
handwriting, the same consisting of two sheets of paper, the part 
containing the alleged signature of the parties having been lost 
by her son, Aaron, whether purposely or not the Court being unable 
to decide; the Court finds that said defendant either forged the 
signature of complainant to said document, or wrote the second sheet 
of the alleged trust agreement over the genuine signature of com- 
plainant, and all unknown to oomplainant and without his knowledge, 

consent or authority; that in faet and contemplation of law there 

there 
la not now nor never has/been a legal trust existing between the 

parties respecting said sxim of til, 000; th-it the alleged trust 

falls for the further reason that there was no trustee either 



{^naiMi&fairjsi hnr *to< que -^JLtaail ici t^asj ®^ «t ^sfoifoooa e^^nivfiii 

•t *Cf5i)G9tdI/ BAY? Jxi.cajtsXqB!oo 1:0 riJiRftU ^iii l^ sai^o .ii ^{Xno c^s^l* 
asiJ.tTr>s Alec ni fesfrr ■ -a T:©V9:^^3iiw 1:0 ^emf© 8iS«r «jBoo»cr 

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:-.c&oq9Jt> AmS, »fxuli no Jbfi« 

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>ci\a'^f; isv»fl T<iM« woa #oa »i 



3 

mentioned or appointed, nor the said trust fund transferred to a 
trustee, and that the parties themselrea still have control and 
possession of said tll,000« 

(3) Finds that about August 7, 1933, complainant brought 
a divorce suit against defendant, alleging extreme and repeated 
cruelty; that fox the purpose only of determining the amount of 
alimony oofflplainant should pay, the properties of the parties were 
inquired into, ineludlng the |ll,000 involved in the present suit; 
that there was a oross-blll filed in said suit; that a few days be- 
fore the oase was set for trial, complainant's then ooxinscl withdrew 
from the oase; that complainant then secured the services of 

John E» Groves, counsel in this o??8e, who upon learning from com- 
plainant in the divorce suit that he had no one but himself to prove 
the charge of oruelty, advised that the divorce suit be dismissed 
at complainant's costs for vs,n% of equity and without trial upon 
the merits, whieh was accordingly done; that no testimony was 
offered or heard upon the merits and no decree of divorce was granted 
to either party to said suit; that no property rights were settled 
and under the law and the Statutes of Illinois no property rights 
oould be settled in that case without a decree of divorce being 
entered, and that the s'^atus quo of the parties remained the 8?me 
as if no divoroe proceedings were instituted; finds that said divorce 
proceedings and all the orders entered therein are not res adludioata 
of any of the matters and things in the present cause; that said 
cause was General Number B-373874 in this Court, 

(4) Finds, orders and decrees in regard to the counter- 
claims of defendant, especially those relating to the hiring of 
various stenographers, attorney's fees in the divoroe oase, and 
doctor's bills eaused by her own negligence in trying to evade 
service of summons in the present oase, are not only unnecessary 
expenses, but also not proper charges against the complainant in 






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4 

thii oaae; that all of the oounterolaima put together are more 
than ©fftet toy the #4,199, of complainant's earnings ^ioh defend- 
ant has appropriated to her own use and which she failed to deposit 
In the said joint saTinga aooount; that all of the unpaid hills 
incurred hy defendant be paid out of the part of the |:il,000 herein- 
after set ajside as belonging to said defendant* 

(5) Orders* adjudges and decrees that the #11,000 now 
in the Foreman Safety Deposit Box 0<Mapany be equally divided between 
the parties hereto, #4,500 to each of said parties; that said 
safety deposit box company be ordered to allow complainant to open 
said safety box, and in the presence of defendant, and any of the 
officers of said company, draw out of said box the sum of |5,500, 
and leve the balance to be drawn out by defendant, 

The court, having heard the testimony of Fred Holy, the 
intervening petitioner, also finds that he rendered legal services 
to the defendant, and that such services are reasonably valued at 
llOO; and the court ordered, adjudged and decreed that Winifred 
Hitohoook pay to Fred Holy |100» within five days from the date 
hereof* 

From the record in this oase it appears that on November 
3, 1933, the complainant filed an amended bill of complaint in the 
Circuit Court of Cook County, against the defendant, his wife, for 
divorce, on the ground of cruelty. From the bill it appears that 
the parties are the owners in joint tenancy of the premises located 
at 3307 West 65th Place, Chicago, and, among other things, that the 
complainant has been in receipt of a substantial income for several 
years last past, and maintained a savings account no, 668028 in 
The First National Bank; that all monies deposited in said aocnmnt 
were monies earned by complainant and monies Which were the sole 
and separate property of the complainant; that for convenience the 
aooount was maintained in the names of Wiley and Winifred Hitchcook; 



won 000«U:| 9i: ogJNii*® ««i:?JG->. 

a««v*ecf i)et)lvib xllt-^- a-o-ffoo x©^ ti:»pqaa i[3f"»t^£; fiA»»so'i »iljr ui 

'5if's tAfJW- jsei: . :0S»*| tO;r»i:6)C!; 8ei#twiq 9^Jit 

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5 

that the defendant made no contribution whatsoever toward the 
aooumulation of the savings account; that in the latter part of 
June, 1932, the aooount was in exoess of #11,000} that ooaplalnant 
withdrew 111,000 from said aooount on Junue 34, 1932, and deposited 
same in a safety deposit box in the Foreman State Safety Vault 
Company; thn.t said hox is held in the names of both of the parties 
hereto under an arrangement whereby neither has aocess to the box 
without the presence of the other; th-t s^id |11,000 is the sole 
and separate property of complainant, and thst defendant has no 
interest in said sum whatsoever* 

To this amended bill the defendant filed an amended 
answer denying in general terms th^t the complainant is entitled to 
the relief prayed fort 

This caviae was finally reached for trial, and before any 

evidence was heard by the Chancellor, he entered the following 

order upon the request of the complainant: 

»This cause coming on to be heard on the trial of said 
cause, the same having been set to be tried on the 27th 
day of December, 1933, and Leslie H» Whipp appe^^ring on 
behalf of the defendant, and John F. Groves appearing on 
behalf of the complainant, and the said John E. Groves 
having made his written motion to dismiss said cause; 

It is ordered, adjudged and decreed that said cause 
be and the same is hereby dismissed at the complainant's 
costs, for want of equity* 

Enter: Q. F. Rush, 
Judge* 
0«K* 
Wiley Hitchcock, « 

Subsequent to the dismissal of complainant's bill for 
divorce, he filed his bill of complaint on Febr\iary 3, 1934, in the 
Circuit Court, and, upon the issues being joined, the court entered 
the decree of January 25, 1935, declaring the signature of complain- 
ant to the trust deed to be a forgery, and entered an order for 
solicitor's fees, based upon the intervening petition of Fred Holy. 
These oases, which have been consolidated, are now here on appeal 
by the defendant* 



erf* M''i!iro:^ Tgv©oa3-,ari?r tmitsjdiz^aoG on siwiffi taiibn^liti sit 

s:^air.He Bsit to aoii^sLumsotts 

tJu/jBV ^*9l\ee arf-.'-'^d-g n.EiUQTO''? arft ni xocf i'-iaoqai 'C<*"®'^ '-^ Mw»8 

^aitTCw «i£rt to rf*od Trc "^ "; jS- ixa^qaoO 

b9bn&tL9 n£- bBlil in^baoleb &!ii lild b&baBme, stdt oT 
o* bf>ima^ Bt iaBalBlqiaoD ©d* Jr-rf^ ewisi- ist&a^g at saiipx®l> T«w»ii^ 

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: ifiStjpnJtjsXqflioo ©il.t la &a^isp9r »d* noqxf i»£>to 



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6 

The point is made by the defendant that dismissal for 

want of eqtiity of the former divorce proceeding instituted by the 

ccMBplainant is yes adjudioata as to all questions decided or which 

might have been decided in that proceeding, and therefore constitutes 

a bar to the relief sought by the complainant in the present pro- 

ceedingt The defendant cites many decisions of courts of last 

resort upon the question of the application of the rule of res 

adiudioata. the latest of which is Webb v. Gilbert. 357 111, 340, 

wherein the court saidi 

" lies judicata has a fixed meaning in law. It embsaees not 
only what was determined in the earlier proceeding but 
covers any and all matters which might have been presented 
and an adjudication thereon determined in such proceeding, 
{ Rop-ers V. Hlggins, 57 111* 344; Bennitt v. Star Mining Go , . 
119 id. 9; Lusk v. City o Ohioago> 311 id. 183; U^irie Ohuroh 
V, Trinity Church. 353 id* 21; Bailey v, Bailey. 115 id, 551; 
Godschalck v, Weber. 347 id, 369,) When there has been a 
final judgment or decree neither party thereto should again 
be permitted to relitigat« by undertaking to change his 
position in the case and to force his adversary again to 
defend against the same matters and matters collateral thereto 
as were properly involved or might have been brought forth 
in the prior litigation, nor shovild the time of the court be 
taken in considering and deciding issues between the same 
parties involving the same subject matter where there has 
already been one final decision, which is still in full 
force and effect," 

In that case the court held that the rule of ires judicata ^as 

in a proper case, 
applicalsile/ and it 1b for this court to determine whether the facts 

in the instant case are such that the rule would apply. 

The defendant also seeks to apply the rule of retraxit in 

this court, and quotes from the case of United States v, Parker. 

130 U, S« 89, as follows: 

"A judgment of non-suit, whether rendered because of the 
failure of the plaintiff to appear and prosecute his 
action, or because upon the trial he fails to prove the 
particulars necessary to make good his action, or when 
rendered by consent upon an agreed statement of facts, is 



»9tijt±tttaoo &ToT-=^';--'rf.-i bns ^gniljsaeoaq tBfii ai b€*blQ>fib noarf sy«i4 td^la 

,0i>5 .III 7ae . ;t7?oXiO -V cfcfaf ?!i rfoicvi to Ja^^f'. .. . >tg.oii>jLyfcAc 

^:.&x. ;•■ iiifoo erf* ais'isi^w 

J; ^:^ 9ff# PLi fe" J 

f^'-.:!^^ , .. .;. ;^.,.: rfolriw aies '■> 



JL .,..!^ 






.'- I. 



f ■ i- f-r-.ift - -:•.; ■■ ■■,■••-:- : <L 

iitf: CIS. , ^R 

,-, --:-' -.r -'v>q 



7 

not oonolusive aa an estoppel, loecauae it does not 
cLeteraaine the rights of the parties." 

la that oaee the reason for the applioation of this rule is olear, 

for, as stated in the opinion, its applicability miiat be determined 

frcMi the facta as they appear in the case. The court said; 

"the judgment was rendered upon the evidence offered by 
the defendants, which could only have been after the plain- 
tiff had made out a prima facie caae. That evidence was 
passed upon judioally by the court, who determined its 
effect to be a bar to the csuse of action. This was con- 
firmed "by the consent of the attorney representing the 
United States, The judgment of dismissal was based on the 
ground of the finding of the court, a a matter of fact and 
matter of law, that the subject-matter of the suit had been 
so adjusted and settled by the parties that there w«?s no 
cause of action then existing. This was an ascertainment 
judioally that the defense relied upon was valid arid 
sufficient, ajid consequently was a judgment upon the merits, 
finding the issue for the defendants." 

The court before whom the divorce proceeding was pending 
did not hesr evidence on the trial day, and therefore did not 
determine the effeot of the evidence on the rights of the parties 
to the litigation. The order of dismissal was not based upon a 
finding by the court that the complainant was without remedy, nor 
does it appear that the litigation as between the parties was 
adjusted, ^e are of the opinion that res adjudioata is no bar to 
complainant's action now pending*! 

Upon the trial of the divorce case no claim was i»ade that 
evidence was offered at a final hearing, or that the decree of 
dismissal adjudicated any of the property rights of the parties. 
While the |11,000 aooujaulated during the aw,rried life of the parties 
was at issue, the parties were chargeable with the obligation of 
the trust agreement. In this connection the oosplainaBt oh'^.rged 
that hia name had been forged to the document, and, in addition, 
that pages had been substituted over his alleged signature. The 
rule of law, which is supported by authorities, is that the complain- 



tfofi 690X5 tl aaif^o©<i ^Xsqqoc^B» a& cijs ©TiewXoiioo tea 
^ m9i&iitsia 9rf* to ©trfgia: erf* twsJjrjstaJb 

i>o«iffirre:r«f) ad" &uvm YifJtXicfBOi:I«iq/? at! t.TerJtoXco 9rfc^ ill betf^tm ob ^rdi 



arf;f /; 

nssKJ r 
oxi 

.flij^aacr 






ooia eo-rov. 



too hlh fi'j-o1:«i7&x!? bn 
a©l#Ti5q ... 

ion ,^eBij- -i.. : . 



■ • >oir©fcJ:v?% TBOri 4'oa Jbii) 



v..,.*.ii«Xqat©'. 



^iCf j|ni£»nil 



BaX;*!^ &il^ lo T^Lx-v i-.yx,- & aift sixXtxdb i>©#rXamiroo.<^ 000, XI|. <Kf* aliilW 
^o ooX^fsXXcfc -■'' ^"■^" - '-asrcjailo ataw soI^t^q arif ^ausax *a ««w 

ariT .«Ti/j;i. '..4.- vi »*»!fX3'BCf«8 H©*'' ^^iii- 



8 

ant may dismiss his bill, •vcn after the ohanoellor has announoed 

his finding, but before a decree has been entered. In the oase 

of Williaas v. Breitung. 216 111. 399, the court said: 

•'The complainant may dismiss his bill even after 
the ohanoellor, upon the hearing has announced his 
conclusions, C gurdy t. Henslee. 97 111, 389,) • ♦ * 
It makes no difference t,h«t the decree of dismissal, 
entered by the chancellor below, is to be regarded 
as a decree dismissing the bill without prejudice • ♦ •, 
But 'it is not regarded as prejudicial to the defendant 
that the complainant dismiss his own bill, simply 
because the caaplainant may file atnother bill for the 
same matter' •" ( Bates v. Skidmore . 170 111, 333,) 

The law is so well established that it needs no citation 
of authorittet - that when the oourt has considered the merits and 
entered a final decree determining the rights of the parties, the 
law of res adjudicata will apply ^ 

The defendant calls to our attention the case of Maffenbier 
T« Gearhart . 357 111, 315, as having a bearing on the question of 
the dismissal of a case by the oourt for want of equity* before a 
hearing and final decree. From an examination of the authority, it 
appears that the oase had been referred to a master and evidence 
submitted \Sy the defendant, eren though the complainant did not appear, 
and when the case was heard by the ohanoellor on the evidence taken 
before the master, the chancellor dismissed the bill for want of 
equity* In that oase the question of the application of the law of 
ref adjudicata was material* 

One of the important questions to be considered in this 

litigation is whether the so-called trust agreement dated June 26, 

1933, was agreed to by the parties and is a valid, subsisting trust, 

revocable only by oonsent of the parties thereto. The agreement in 

question is in these words; 

"June 36, 1933, 

"The money In the Foreman-State Safety Vault Co, safety 
box belongs to Winifred Hitchcock and ^ilej Hitohcook 



• 

:bir.p, iiijoc , &;£ .ill »X8 ,-^ur^i»-j^ «y aatfjilHW , lo 

1:9*1:?^ iC- ..■..-. 6ii^ f 

* * * (.eSi .III ' : . - 

:, s^ 0* sx ,viroX9Gi TCi ;f^ 

.♦ " iq ^i/or':^^' rixd' '':';:? __ ._ :>s 

BAi rot Ilief iSfftonje rpodd 

(.S?;<: .III OVi <,a^:^;;^-:— ,;.,, «v ^. - ,.., .',..... aia^s 

galGna'il t.-, ..:v 3g,e.o enJ .......... a ,J J- is iijro ot ftli.ec »..« -.^...^isi) arii"' 

1© /lol^saup erf* ffo iflXxisad g '^aiv&fi ra ^iJX® <1'T '>''^c « #T:jgrit<qO •▼ 

« •T0l9cf ,Y*il^P'5 to tltBW '.tor +'^'"^'- *?<*• -'^^ «- - IjSfiBll8«Xfc !«£<»■ 

lo *nBw tol Hid 9di boetttsiBib 'xeXXena^il© aii;^ ,^s*ia»« 9dt •tOlMf 

^iAH9&m ti&v g^t%iitm*tM MSI. 

;nuTc.^: f.>i-'5jii* ctt el noX^fatwrp 
X#«l?8 .oO i-Xupv x^slsfe eiea-a-iijiBsao* »A:t at xmom ««1T" 



and cannot be touched or withdrawn without the consent, 
presence and signature of both. This Eleven thousand 
dollars in the above mentioned safety box is to be held 
in trust twenty years for the above mentioned persons so 
they won't be destitute in their old age. If we (Wiley 
Hitchcock and Winifred Hitchcock) decide to break this 
trust agreement at any time 1/3 of this Eleven Thousand 
dollars shall go to each of xis. lAhen the above mentioned 
persons decide to withdraw this Sleven Thousand dollars 
from the safety box, it shall be deposited in some bank 
chosen by them and deposited under this trust agreement. 

In case either Winifred Hitchcock or Wiley Hiteheook 
should die this money shall go to the survivor. If both 
Winifred Hitchcock and Wiley Hitchcock die before their 
■oa Aaron Hitchcock this Eleven thousand dollars shall 
pass, without process of law to their son Aaron Hitchcock, 

(Signed) Winifred Hitchcock 
(SEAL) Wiley Hitchcock" 

In this case the complainant testified that he did not 
sign the alleged agreement, and that the only time he saw this 
document was on or about December 9, 1933, when it was produced 
before Judge Rush in the divorce proceeding between the complainant 
and hia wife* The defendant testified that the agreement was in 
her own handwriting and was signed in the kitchen on a small break- 
fast table by herself and her husband, the complainaiit, and that at 
that time no other person was present. The son Aaron also testified 
that he knew nothing about the preparation of the document; that he 
was not present when it was signed; that he knew his father's 
signature, and that it was attached to the portion of the dootuient 
lost by the witness^ 

It was for the court to |».8S upon the credibility of the 
witnesses in l^la case and determine from the evidence the weight to 
be given to the testimony* While the evidence is conflicting, the 
court passed upon the facts as they appeared from the evidence, and 
In this court ©f appeal we will determine only from the evidence 
whether the decree was against the manifest weight of this evidence. 
If it is evident frcm the record and clear to the understsinding that 
the decree is not supported by the evidence, it is then the duty of 



9 



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bBcxubOTc: - • *' — '■■■■ ,-''••'■ /? 7^a«t>eQ txiodg 10 ne gitw ^aeai/ool) 

-^ssTcf IXifflia j3 no n&xfoJx^i ^^n,t ai h&sr^Xa stw Jbfi^ .v,n.c</xx«Jbifl:iJif mro lii! 
f>sill#8»* o»X^ itOTitA nee »rfT ,*fr&8S'rcf ssr? iKJart^g xsdto ofl ©alt ^jBili' 

«rf# lo \ti£ldJ:b9xo '^at rtoqn asjsq o;J &rsiot> tult tot 8*ir *I 

•/ft ,^i*oiXlno« •! »tia»fcJtv« art* eliriiff #Yflo«'-^*ft»* *^J^ o;f rtftvlg »tf 

titi!^ ,eoiidftlr© <i/f* jWBtt fe^TjRa^qjs Y»if* o/^ ei^3i»Tr ad* «©qir ib»B8J«i tiuo* 

••a8£<iv8 9if* ©©"il yX«© nttkmt^tnb ItJtm «w Xo«;"^o* to frvoo airf* Ml 

rrafcXr* «iri* \o Jrigiew ^esllnjaB 8il* *8nli«si« nepn 9BtC9b 9iit i^df9d^ 

ijsiii ^tbasitx9bav 9tit of tb8X^ fit isoTt *a9tiY8 aX *i ?H 

to x^ub 9x1* n»rf* 81: *i ,80fl»ifcXv» ©do T{tf Jbe;fToqqif» *Ofl B.I: deioal) ©d* 



10 

the court to reverse it. The authorities hold that the Appellate 
OouTt will not interfere irith the finding of a lower court where 
there is a conflict in the evidence, unless such finding is clearly 
against the manifest wei^t of the evidence. This rule has been 
approved in so many cases it will not he necessary to cite any of 
theai« 

The method of service of the alias sumoions upon the 
defendant is questioned on the ground of fraud. However, this 
question of service was considered by the chancellor, and evidence 
heard by him upon the alleged taotios of the officer who served the 
summons, as well as of the attorney for the complainant, and he 
decided that the sximfflons was properly served. The chancellor haviig 
arrived at this oonolxision upon the evidence as disclosed by the 
record* we are of the opinion thst he did not err. The appearance 
of the defendant is in the record; therefore the court below had 
jjurisdiotion of the person and properly proceeded to pass upon the 
questions involved in this lawsuit* 

The defendant complains that throughout the trial of this 
cause the conduct and renarks of the chancellor were such as to 
demonstrate his inability to impartially weigh and determine the 
issues Involved, and calls the attention of the court to excerpts 
tTvm the record of the remarks of the court. 

A party to a litigation will not be allowed to take advan- 
tage of his own wrong, nor to oompdkiin of the remarks of the trial 
jtidge as error when such remarks were induced by his own conduct. 
To be allowed to do so, would cause the opponent in the case to 
suffer the consequences of the misoonduot of another. This r\ile 
has been redognized and approved by the courts in this state. 



Br»An ixssoT) t^;so.. .irtbci'J: 9tii dii 

.0 Ya< «#io otf X'ifB&oo^ii 90' ton Iliw if; 



01 
f«BTOtqq« 






■ 9A bits ,*nj8ci-^XcrE00 ©rid^ g:ol ^n^ot;fj? 
h .£i • oiecf ixu- . _.-.j ^. ; '>3t 



tti «f ' 'b Sri* lo 



»J^ S3 ifcrsre ex&w io^Ieftift«r(o »4(t- Ito «:^x«/sm: fees l^mitooo .... . 



II 

.MSM/ V, iMiSJb l^ ill. ^»». M«| ^^JUifii. Y. aaUte.. X«^l 111. 

Hi. iijrn, inN» « i?ffl»wi« la 2S8 III. agl. -hill* tli« «««f'n~'? »t Us, 
hf «xee3rpte f»»)» %Im r#^Nl, «»sll.«4 mar lattc&tieit) to l>1i« l-;»ag»it.g« 
ef tki9 ee^dft la wmfiaemmtAtm ^«y ^urini^ %ii« ^ouf^v* of tlit* trial ff«t 

«on(l«iet* mw tmu^timt Mm fi»% 1»#«st frop«rly eell»«i to tli« v'!vurt*« 
&tt«iKti»s$$ tlNer#f«r», i£^ t^« ftl>««WjM Gf etMHi •▼tdettett, %)»# rm^.Tkn 

•»ttld iH3t ^ fiiida»i<l«74%jrl &t#|tt#iei''»l» 

Ift t^ift |»«>»««@diiig tM lkm.ii!%sm ^^ «vi4«tte^> K- : v^! nr. 
&, «1l%ft0tll9'jr^ aaa in i»^i$^i»it uisofi «1|« fa«t« t)i4»T'» !« «i<»tHi»0 &» 
tli« r«4a?iS «lil«Ji mmwXe. i»'n%jm%m fte-s Ito ehBiMieller »«• ©> rti.«l, 

^fi |fc:*t» ©ftiiatiasfi ift« «f'-««i* ttt?.! «« •i5a«i?s.«»f i!RT5oyt-?-«t 
^msmi^ tht a^ci^ 0it«Nl tsy fli« p^^i^^- 1« thi« litlfatton, Hjid^ frwi 
»-ar ip|,«?»-« m%-::fipmwm» '■ li#»€l», ®,3P« ®f t)ui 9:»imif>tt th^^t tlto a«urt 
iidi m>^ *SPf ift ettt«r4llg: tk« 4^^wm'^, Tist^y for-' tfe» ^^o^vra • 1« 



rn V 1 ^y^%ij,i^ ,v sTa^ii??!^' ji^i .tftw' .rrx sss?f ^m.^^^ •* itltltf 



38393 

III RE PETITION OF FRED HOLT, 



WIMIFRED HITOHOOOJC, 



Appellant* 




OOOK (foUKTY. 



28 5I.A. 5 86' 



UE. JUSTICE HEBEL DSLIVEHEO THE OPIKIOM OF THE OOUOT. 

In determining the issue In this case we shall consider 
abstracts and briefs filed toy the respective parties in oonsoli- 
d-ited oases Nos. 38393 and 38393, 

This proceeding is baaed upon the intervening petition of 
Fred Holy, who appeared as attorney for the defendant, Winifred 
Hitohoock, in the proceeding entitled Wiley Hitohooolc versus 
Winifred Hitcheook, Case Uo, 38393* ^ a hearing of the iaterreB- 
ing petition, the court entered a Judgment for the intervener for 
legal services rendered his client, Winifred Hitchcock. From this 
Judgment order the defendant appeals. 

The petitioner, in his petition, on which his olaia Is 
based, states that there was no special agreement of any kind 
regarding his fees, but that Winifred Hitchcock had agreed to pay 
reasonable counsel fees, and therefore petitioner prays that the 
petition be set down for a trial at an early date, and that he be 
allowed to prove his fees for services rendered, and which he will 
still be called on to render for the defendant, Winifred Hitchcock, 
in the above cause, and offers evidence as to the value of his 
services rendered in the proceeding in which he appeared, and for 
such services he regarded the sub of |700 a reasonable fee. 

It appears from the record in this case, however, that 

during the course of the trial in the case of Wiley Hitchcock versus 

Winifred Hitchcock, No. 38292, this petitioner was disoh^rg;ed by the 

were 
defendant for reasons whioh_y ' at th-^t time st=>ted; that his services 



.YT-au 



'd O G eA.I ^ 



»8«iX9q(jA 






sesse 

MI 



IW 



- =»Tn:etf:. 



Jb/xl 



.iooodio^tU l)»Ti 



■ sroiTSu^ ,m 



..ocoAoil' i>':':.'li. , •.fcfl0ta£» off.. 



St a'sob t9u »<^ aottitBq 
£>it»7 oif £co £>eXX«o ftcf XXi:#e 



fiiff to ouX 



i-?-^ ni:3l:"iQ ban ,,de«jBO tTOOfis 9d* al 

8TSW 

Jr-tif tjf, ^\jA»itim aaoBs^t to I taiibatt'tub 



were continued by the court and his withdrawal denied. It ia our 

opinion that in this the court erred; that the defendant hnd the 

undoubted right to discharge her attorney, and if she wished to 

continue to act in her own beh-^lf in the trial ehe^had the right 

ttXidcr the law to do bo« 

fhe St' tttte regarding attorneys' liens, Ch, 13, Par, 13, 

Sec, I, 111, State Bar gt^ts. 1935, provides - 

"That attoraeya at law shsll have a lien upon all claims, 
demands and causes of action, including all claims for 
unliquidated damages, whicri) may be placed in their h&.nds 
by their clients for suit or colieotion, or upon which 
suit or action has be n instituted, for the aaount of any 
fee which tiey have been agreed upon by and between such 
attorneys and their clients, or^ in the absence of such 
agreeaeat, for a reasonable fee. * * • Provided, towever, 
such attorneys shall serve notice in writing, • • »,» 

It appears from the recordthat this petitioner did serve a notice 
In writing of his claim for a lien in the proceeding in which he 
appeared as the attorney* The court in the -'djjudlcatior of the 
amount due such attorney from his client shall enter such order and 
enforce such lien as may have been established. The record doe- not 
show that the proee ding was for the purpoBe of eBtablishln, b. lien 
for the amount claimed to be a reasonable fee, but rather a suit 
between attorney and client for the purpose of recovering- a reason- 
able amouiit for services. We are of the opinion that it was the 
intention o' the 1 glslature, in passing this act, that attorneys 
In lltigationB In which they have betsn retained should have the 
right, by petition, to have the court fix the amount of their fees, 
and thereby establish g lien upon the cl^ilma, demands and causes of 
action In their hands by their clients. This did not apoear to be 
the purpose of the claimant by hie petition, here, however, there 
Is a dispute between attorney aan ollent, as in the instant case. It 
would seem to be the proper practice for counsel to institute suit 
for recovery of fees earned in the litigation, so as to five 
the contending party an opportunity to appea and 
make his defense, .hile it appears thot the evidence 



Ti/n ei fl .fcalaafc lAmmibdit^ Bid tms t%acQ 9d& yd b^uaitnoo 
tAaii 9dt Ssrf'srfB I •iii' sricJ iidcf tno 't&ti at ioB oi 9aaltao9 



t>fl«r tafeio rioW" T;.i-xT vtsaiXo »lt{ y.ort xeaxotin dsun 9Sfh fauome 

tor . . i^m ©a a&il itM» no^otflfi 

iSr-i.: iriaiXd.Gtaa lo s^^ocrxxrc. ■ -^ \%ath' »oot<:. ^t ti^t wodfi 

eri# acw .' . ©oXvic®© T.0I ♦(iooaiij ©Ids 

9t**^o^'' ''■•'•d.-; , ' ^tftBnB< , i;d-.stX»J§( X add- so aoi*«»S-ffl 

•Kt ev^d M rrfp fttjnl^* ;^rft tfd^riw Hi li«oi#it$i^iJ: aX 

, :.el al©ri:r ^:o *ao' hbji »d* xi!t *ai ,aoj:l'*#eq ^d ,irf?ji'S 

to ««exffie Sam afcap-asb ,eml'Xo od* il e d»iXd«*«» t^^oted* ^« 

•<1 o:r #00 f>t6 aldT ,et*»*f Xd T/or/* xd eftisuMf «i»d* iri «oi#oj5 

;M ,«eAo #n.«5*p.nl *da , ,i ,i^ ys-mo*** a?»wt»d »ttf^lf» « at 

#iw8 •*ir#X^«rtX o* X»<»fl«oo 10I ©«»^ tsao^q •dj' »d o* ai©e»8 feXt/cw 

•vis o^ fi" OK ,aoi*;'J5lt/X »d* ni fceniKe «i»©t 10 Yt»vood« tol 

ftii.' tJSoqpfM •# xiflm/'jfrto^f.o «« x*"^^Of liui bxi»*noo td* 

•oaei»lv» ©d^ ^^Aoa ^^■,:fr:' 9lia^ .•(t«st»b aid sijfia 



3 

of the attorney wae heard over the objection of the defendant, 
Winifred Hitohoook, before the oourt without a jury, we are of the 
©pinion that the court should have dismissed the petition without 
prejudice. From the facts disclosed by the record, the petitioner 
can not upon hla intervening petition maintain his suit filed in 
the litigation then pending* 

For the reasons stated, the judgment entered by the court 
for the sum of llOO, should be reversed, ajid under the oiroumstanoea 
In this oase and the construction we have placed upon the Attorney's 
LKiL Aot, it wl3JL not be necessary to remand the cause for another 
trial. Therefore the judgment Is reversed, 

JUDGMENT REVERSED. 

HALL, P.J. AND Q1II3 1. SULJIYAN, J, OOHOUR. 



5 



un 



S8316 / Z^ .^" 



ROTH i4. MORTELL, Administratrix of th« 
Estate of Oyrll J. Quail, Deceased, ^, 

Appellant » 

▼• 

GUY A. HIOHAaDSOM and WALTER J, OUMMIMOS, 
as ReoelTers, et al«. 




PSAL FROU 



SUPERIOR COURT 



COOK OOUHTT. 



Appellees* 

28 5I.A. 5 86^ 

Ml. JU8TI0S HSBEL OSLITSRED THE OPIHIOK OF THE COURT. 
Tlie plaintiff, administratrix of the Estate of Cyril J, 
Quail, deceased, has appealed to this court from a judgment entered 
by the eourt for the defendants upon a directed verdict, wherein 
the court instructed the jury to find the defendants not guilty. 

This action was based upon plaintiff »8 declaration con- 
sisting of one count, wherein it was charged that plaintiff's 
intestate was crossing Clark Street from the east to the west just 
north of Waveland Avenue, in the City of Chicago, and that the 
defendants so carelessly, negligently and recklessly ran, managed 
and controlled a southbound street oar on Clark Street as to strike 
and injure, plaintiff's intestate, and that the injuries so sustained 
caused his death* 

The defendants* plea in this action was one of not guilty« 

The evidence of the plaintiff was heard before the court 
and a jury, and upon defendants' motion, the court instructed the 
jury, at the close of plaintiff's evidence, to return a verdict of 
not guilty* 

The plaintiff contends that in considering defendsjuts' 
motion, the court erred by reason of failure to apply the rule of 
law that all reasonable inferences favorable to the plaintiff must 
be drawn from the evidence and the circumstances surrounding the 
accident at the time of its occurrence, and the facts are to be 
accepted as true* Walldren Express Co * v, Krug. 291 111. 472; Yese 

▼• liSl* 355 111. 414; Hunter v* Troup> 315 111. 393« 



^tn»LS. 



THWOO v1 



jK>or/ 






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»«n:Jt^clsX<7 .t.Rri:f t' , nvo» »£t© "io sni^ala 

L'l tasw «xfj 0* ;}"C3S fear ihoiI S-e^'i<i'"tf :gij;.i.w auiegci:* ajw ©^fe^asi'fli 

84^ ^Bfl* 6fl« ,O3J^,0ii{C to x^^^ «^* ^^ »f5i;fl3vA JbasI»v.sW ^o £fttoii 

^ilt»Bb mid. Jb»axr»o 

#^tfoo t>di^ 9T0l©cJ Mjseri sbw t'ixtaljtXc; etiti io so«»i>ivo «iiT 

toibTifTv .? in:w*f>t o;; ^aon^fclva B'lliJ-«i.«Xq to »Bt»Xo »rf;t ;tE ^x^uf^ 

,\Sllu^ tea 

to •itn •((# Y'Kt9[<lA ot •!£/. -:juoo ftii;f «noi^o« 

^8UB lli^ai^ic '^at oS oXcf«T07Vr eeoxie-xi'l'jiX sXo^noeuBarr XX£ ^-^xl;^ wjbI 

8d^ ^Ti6ncroxTi/e «Boa£SB^a^ox£o 9iit ban ooct8i:>iv» »xit noxt awMxb •tf 

•(f 0^ Br» Bio'i.'i oidi (it' «aoa@a-ixyo&«p uti io asiicf ft<i^ ^« :fa»bioos 

BdOT ;ST* .XXI les ^^uruL .v > »0 oeft'xax^^ i^^gTOij-a/ m»irti euj l>e;rqeoojs 



3 

Ttii« facta before the trial court were tliat the plaintiff* e 
Intestate Oyril J. Quail, on the night of February 38» 1933, tat 
employed toy the City of Chicago as a fireman. At the time of his 
death he was a widower living with and supporting five children. On 
the night In question he was walking west on the north sidewalk of 
Wavdland Avenue In the City of Chicago, with the Intention of 
hoarding a southbound Olark Street oar operated by the defendants 
at this point* When plaint if f*s Intestate was about 8 or 9 feet 
from the east curb of Clark Street a southbound street car was seen 
approaching 125 to 150 feet north of faveland Avenue, at the rate of 
36 miles an hour* At this moment Quail started to run across the 
street on the north crosswalk directly west, when he raised his right 
hand to signal the mtotorman. There Is evidence that the motorman 
threw off the switch and applied the brakes, which slackened the 
speed of the oar* Before the car reached laveland Avenue the speed 
was Increased, without the ringing of the gong on the car* i|uall 
ran on and as he did so he reached the center tracks where he wna 
struck by the left front of the street car* The car passed over the 
crossing, and the rear end of It was beyond the south line of t'Mveland 
Avenue when It stopped. 

The injuries sustained by (}iiall In this accident caused 
his death* The street car operated on this ocoasion was a front- 
entrance-for-passengers oar with the conductor located in the center 
of the car* The headlight on the car was burning, as well as the 
lights in the interior of the oar» There is evidence that on the 

WSLS 

night in question the intersection/lighted* As this car approached 
this intersection from the north, the motorman could be seen in the 
car 75 feet north of ^"^aveland Avenue, and at that point the car was 
running at a speed of approximately 35 miles an hour, when the 
motorman made a motion as if to control the speed of the oar* 



s 

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3 

The BUtborlties all agree that the attempt of the plain- 
tiff to past in front of the morlng street oar was not of itself alont 
contributory negligence. The question is: Did (^uail, as a reasonably 
prudent man under like oiroumstanoee, in attempting to pass the front 
of this oar as it was approaohing, put himself in a position of peril? 

In the determination of the oase we must consider the 
question of the distance of the oar from plaintiff's intestate and 
its speed of 35 miles irtien first observed, and also the fact that 
the car slaokened its speed and then iiamediately inof eased it up to 
and running across the intersection, and then oonolude whether or 
not the court erred in not submitting the facts to a jury. 

The faots are not seriously disputed that the oar was 
lighted and could be seen coming frcar the north 135 to 150 feet away; 
that it was traveling 35 miles an hour whmn plaintiff's intestate 
appeared on the northeast corner of i^^aveland Avenue and Clark Street} 
that he was facing west when the street car approached within 75 
feet of Wavelaad Avenue, and after signalling, ran in front of the 
oar and was struok* 

^hat happened is best illustrated by the testimony of 

the witness Richard Thomasius, who wa.s present and saw the occurrence 

from the time «4uail started to run until he met his death. He 

testified that hi was a Division Marshal of the Ohioago Fire Depart-> 

ment, and that he had known plaintiff's intestate for about ten 

years; that at the time of the accident he, Th(»iasiu8, was at the 

northwest corner of "saveland and Olark Street, mailing some letters, 

and was facing east; that he saw plaintiff's Intestate, who had been 

at Thomasius' fire station, situated at 1052 Waveland Avenue, coming 

west on the north sidewalk of W?veland Avenue. Thomasius said: 

"^i I saw the man running across Olark street he was coming 
along on the crosswalk of Wavelaad avenue crossing Olark 



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8treet« 

The man was running in my direction where I was 
standing, running straight across the v?alk, running a 
little towards hia like th':>t (indicating). ?rtien the 
man started running I looked at the street oar. I 
saw it perfectly plain coming right down toward Vsiave- 
land* No one waiting to get on« 

The street oar, when the man started running, was 
about 125 feet to 150 feet north of »'^vcland« I »aw 
him running when he stepped off the curb. When he 
stepped off the curb the street oar wps about seventy-five 
feet frwi the north side of vvaveland. At that point he 
was not thirty-five to forty feet east of the southbound 
trade, he was about twenty-five feet east of the south- 
bound track. Probably be ran right out to the car track 
until he came in oontaot with the car, I do not know if 
he was running at the timt he came in contact with the 
street car. The street car and the man met at the track, 
Theymet at the track and the crosswalk at ^eveland avenue. 
I didn't see hia fall. The street ear oaae between oe and 
the man« 

1 observed him running, and he hesitated, and came 
across the street towards me; and it seemed he threw up 
his hands, his right hand, and came on; and as he did he 
reached the center tracks, or I should say the east track 
of the southbound road; and was struck by the street car 
on the left front, about a foot froa the motorman - a 
foot to the left of the motormn.n«" 

In this case there was a further witness, a Mr. Henry 
Mollerus, who was in the car at the time it was approaching Aaveland 
Avenue. His evidence was that while he was able to see the man at 
a certain point, he was unable to see all that happened on the 
evening in question. His evidence was to the effect that the motyr^ 
aan threw off the vwitoh and slackened the speed of the ear, and 
then imaedlately started up; that the approach of the oar was not 
obstructed by anything that interfered with the view of anyone present; 
that the lights on the inside of the car were burning, and the 
headlight was also burning. 

There is no doubt that the street oar was visible at a 
point 75 feet north of the intersection and was running at a speed 
of 35 miles an hour when its speed was slackened, but as to what 
aileagc, the record is silent. The street oar, however, iamediately 
resumed its speed at the time of the accident. 



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In the disoiisslon of the law having a be?.ring upon the 

attempt of persons to pass In front of a moving street oar, the 

authorities In passing upon like questions are in aooord, and the 

rjile of this court whioh applies* is stated in the oase of Qemlng. 

Adar. V. Ghioa£:o ^^ilffaya OoMpany. et al . 834 111. App. 642, 

"Where persons have been injured noting upon the expecta- 
tion that a oar would stop heoause it was signaled or was 
slowing down, it has been held under v=!rying ciroumstanoes 
that it was negligence to act upon auoh assumption. (Welch 
T. 0. 0. Hy, Co., 308 111. App. 161; Helson v. 0. 0. ay Co. 
194 Id. 615; Ramsay, Admr. etc. v. Oh. Ry* Co., No, 3i772, 
filed March 8, 1930; Winchell v. St. Paul Oity Hy, Go., 
86 Minn. 445, 90 «• W. 1050; Dering v. Mil, Elee. ^. & 
Ll#t Co., (Wis*) 176 N. W, 343; Thompson v. Met. St. Ry. 
Co., 89 App. Dlv. 10* 85 S. T. S. 181«) 

It was said in the Raasay case that if the deceased 
expected the oar to stop, 'ordinary prudence would have 
required him to W9.it until he could have crossed in front 
of it in safety.' In the Winchell case the court said 
that plaintiff had no right to rely upon the motoraan bring- 
ing his oar to a stop. In the Dering case the court said 
where one was hit crossing in front of a ear, that when he 
reached the zone of danger it was his duty to look and see 
if the car had started; that if he did not look or looked 
and took his chance to cross ahead of it, in either case he 
was negligent* In the Thompson case the court said that 
where one had crossed in front of a ear, probably assuming 
that because it had slowed up it would come to a stop> and 
he oould cross the street safely, he had no right so to 
assume, and there should have been an instructed verdict." 

Ill applying this rule, the court in the oase of Foreman 

Trust & Savings Bank, a Oorp. Adpr » v. The qhioago Surface Lines, et al 

263 111. App. 652, reiterated the rule applicable in a case of the 

character before us, as follows: 

"The rule is that failure to look before crossing a street 
ear track is not always negligence per sf. but it is like- 
wise true that the circumstances may be such as to make 
such an act negligence, as f matter of law. Van Meter, Adar. 
▼. 0. Rye. Co., et al., 240 111. App, 371; Nelson v. 0, C. 
Ry. Co. 194 111, App. 615; Ehrenstrom v. 0. 0. ay. Go. 205 
111, App, 583; Roberts v. 0. 0. Ry. Go, 263 111. 238; Myhre 
V. 0. 0, i^. Co. 316 111, App. 128." 

Again, It was said in the case of »eloh v. Ghicagp Glty 

Railway Co., 208 111. App. 161, which has a bearing upon a like 

question in the instant case; 



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•Evidently she expected the eastbound opt to stop at 

the southeast oorner of Aberdeen and 63rd streets to 

take on the two women who stood there In the street 

at that comer* • • • The testimony tends to prove that 

the car wfi8> at the time, traveling fast and thr?t no 

bell was sounded or signal given at or near the crossing. • • * 

The evidence tends to show that the proximate cause 
of her injury was not the negligence of the defendant but 
rather that of herself, • * » ghe may have expected the 
defendant to stop the oar at the corner, but there is no 
rule of law which requires a street roilway company to 
stop its ca,ra at all points upon a signal to take on 
passengers; and it follows that the failure to stop for 
prospective passengers who may be standing at the street 
corner does not of itself prove actionable negligence. 
Westeraan v, U. Rys. Go« of Baltimore. 96 Atl, 355j 
WiBOhell V. St. P. St. Hy. Oo.. 90 ¥. W« 1050. » 

In PJgnta V. G. 0. Hy. Co. . 384 111. 246, it was held that 
the failure to ring a bell or gong to warn of the approach of a 
street car oofuld not be held to be the proximate cause of an injury 
resulting from a collision, whea it appeared that a person injured 
had notioe of the approach of the c?r« 

In Gordon A. Haaaay. Adar . v, OhiC5.go Hallways Co.. et al .. 

217 111. App, 646, the court announced the well known principle of 

law in this language: 

"Ko principle of law is more firmly sup orted by authority 
than the one which declares that at common law one assumes 
all risks that arise from his own contributory negligence 
and th^.t where such negligence proximately contributes to 
cause an injury there can be no recovery therefor, even 
against a defendant guilty of negligence contributing to 
oause an accident*" 

Plaintiff's intestate ws,s chargeable with the duty at 
the time and just prior to the accident of looking for the approach- 
ing street oar, and we assume that the oar slackened speed when he 
looked, and then increased its speed, but it woTjdd not be reasonable 
to assume from this fact* under all the clro\imstanoes, that plain-> 
tiff's intestate, in undertaking to cross in front of the car while 
it was still movixxg, did not take a chance. 

The plaintiff in the instant ease does not raise the 
question that the oar was being operated at the time at an unlawful 
and untisual rate of speed. This was the salient factor in the case 



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7 

of Loftua ▼• Qhloage Rya« Oo. . 393 111. 475, cited toy the plaintiff. 

In the disousaion of the merits of her case, plaintiff, 
oites, in addition to the case of Loftua v. ahioago Rya. Go ., aupra. 
Kelly ▼. OhioagQ Pity Ry. Oo. . 283 111. 640; Grlswold y. Chioagff 
Rva. Oo»* 353 111. App. 498; and Northern Trust Oo. v, Ohioago Rva . 
^., 318 111. 40Z. 

In the Kelly ease, the faota disolose tliat in turning a 
corner of an interseoting street, the overhang of the rear platform 
©f the street oar as it rounded the curve, struck the defendant 
and knocked hia to the ground and injured him. The theory of the 
street oar ooapany waa that the danger from being hit hy the over- 
hanging end of the ear in reading the curve was as open and obvioua 
to plaintiff as it was to the servants of appellant. The court in 
anairer to this contention said: 

"It ia the general rule, as contended by appellant, that 
it ia not negligenoe per se for a street car company to 
fail to stop a oar on signal at a corner, ( South Ohioago 
Railway Co. y. pufresne. 300 111. 456,) and that a motor- 
man may rightfully assume, in rounding a curve, that an 
adult person st?5^ding near the tracks and apparently able 
to see, hear and move, and who has knowledge of the curve 
in the track and that in rounding a curve the rear end of 
a street oar will swing beyond the track, will draw back 
and avoid injury, and the laOton&an ia under no obligation 
t© warn such person againat suoh opan and obvioua danger." 

The oourt held that the aotorman of the oar aaw the peraons standing 

at the point where the car rounded the curve and this waa notice to 

him that they were there to take the oar, and expected it to stop 

at that point. The faota in the |[elly case are not the sajse as those 

in the instant case* The question in the instant case is: Did the 

deceased in his lifetime exercise due care for his own aafety at the 

time he approached the traoka and attempted to paas in front of the 

street oar, when it waa obvioua that the oar waa traveling at a rate 

•f speed that would not justify suoh attempt? He was struck by the 

corner of the oar as he reached the tracks, %nd waa injured. The 



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^i*3-/ ■:■' ^iro t&9ith 

OiiT ,bTultt. < L.0;ilo.;-; ■ "5:0 •ronino 



rale In the Kelly ease was approved in the other two oases, - the 
Grlewold oase and The Northern Trust Ooaoany case, in both of whloh 
It was determined that the question of negligence and contributory 
negligence inrolved in these cases should have been submitted to the 
jury, and It was submitted and the judgment affirmed by this court, 
and upon appeal was affirmed by the Supreme Oourt. In the instant 
oase, the fact that the intestate raised his hand to signal the 
approaching oar, while in the aot ®f running to cross the track in 
fr©nt of the moving oar, m>uld not of itself relieve him of the 
duty at that time to exercise due ©are and caution for his safety. 
He did not exercise suoh care* 

The facts in this case, while unfortunate, are such 
that the deceased was guilty of contributory negligence at the time 
aMd just prior to the time of the accident, and the court in direct- 
ing the jury to return a verdict for the defendant, did not err* 
The judgment is affirmed* 

JUDGMSMT AFFIRKED. 

HALL, F,J, Jim DSNIS S. SULI.ITiM, J. OONCUiy 






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3835X 

OVERHEAD DOOR COMPANY OF ILLINOIS, 
a Oorporation, 

Complainant - Appellant, 

▼• 

AOOLPH H, BDRMSTEIK, et al., 

( Defendants ) Appellees. 



JASON A, IMES and DAVID RJEST, trading 
as M. REST & SOfi, 

Intenrenere Ob08« Appellants, 

▼• 

ADOLPH H. BSRMSTIIH, 

(Defendant) Appellee. 



/ 
/ APPEAL FRO 




o 



GIROOIT COURT 



COOK COUNTY 



5I.A. 5 87^ 



MR, JUSTICE HSBIL DELIVEH51D THE OPINION OF THE COURT. 

This is an appeal by the complainant. Overhead Door 
Company of Illinois, a corporation, and the defendants and 
interveners, Jason A, Imes, contractor, and David Rest, trading as 
£• Rest & Son, from a decree entered in the Circuit Court of Cook 
County, diamisaing the bill of complaint and the intervening 
petitions If or want of equity. 

The complainant filed its bill to enforce a mechanic's 
lien upon the property of Adolph H. Bernstein, one of the defendants. 

The defendants, Jaaon A. Imes and David Rest, filed their 
answers in the nature of intervening petitions, for the purpose 
©f enforcing a mechanic's lien. The cause was referred to a fiaster 
in Chancery, who was subsequently appointed a special commissioner, 
and by his report found against the complainant and the defendants. 
In seeking to maintain their claims for mechanics' liens. 

Objections were filed with the Master in Chancery, and 
the objections were allowed by court to stand as exoeutions to the 
Master's report. Upon a hearing the court overriiled all exceptions 
and dismissed the bill of complaint and the interveners' petitions 



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3 

for want of equity, aa we have iadionted above* 

The oomplainant, by its bill, alleges that on July 6, 1929, 
the defendant, Adolph H* Bernstein, was the owner of the real estate 
therein described, and also known as 637-31 West Adams Street, 
Ohloago« Illinois, the subject of this controversy* 

The parties to this appeal oontend thst nhere an owner 
agrees without restrictions that the lessee by his lease shall place 
buildings or other improvements on the owner's property, he thereby 
authorizes and l;nowingly permits his property to be improved within 
the meaning of the Mechanics* Lien Act, and cannot be heard to say 
as against a olaim for mechanics* liens that the improvement is 
uBdesirable or unprofitable* 

The fact is that the lease between the defendant owner, 
Adolph H* Bernstein, lessor and Joseph Rothschild and Albert 
Rothschild, lessees, by its terms authorized the lessees to erect 
buildings and make improvements* The lessor sought to protect himself 
by providing in the lease that the lessees were to give an indemnity 
bond to protect the defendant owner against liens* The defendant, 
Bernstein, testified that when he found that the buildings were being 
constructed upon his property he went to the lessees, who told hia 
that they would furnish a bond. The bond was never provided for by 
the lessees, nor delivered to Bernstein* 

From the facts it also appears that Bernstein never obtained 
a waiver of lien from the oontractors, as provided for in the lease* 

I& the case of F'ehr Const ruction Oo* v. Postl System. 388 

111* 634, the court held that an owner who agrees, without restriction, 

that the lessee shall place buildings or other improvements upon his 

property, thereby authorizes or knowingly permits his property to 

and 
be improved within the meaning of the Mechanic's Lien aot^cannot be 

heard to say, as against a claim for lien, that the oost is excessive 

or the improvement undesirable or \mprofitable* What the court said 



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r.-f -r^r^nc xl^^nttroai no as^iliodiua \fS9itifit ^^f^xaqortq 

•c W-> =T J^'- '"•c^'?xiO'^i' orf;^ lo. 3fl;io««B »rf* /ilrttf-h? f>«yoicq.iiX »cf 

Ttrno ai{:f irsrlW i,ftXtfr*i!t iaiia».aax/ ;fH8£BOV0"rq«l Sfl* xo 



o ' r . 



3 

in its opinion applies in the instant oase, and where the owner of 
the real estate permite the lessees of the property in question to 
erect a huilding and make improve«ent8 thereon, the amounts due 
contractors for the erection of the building come well within the 
ttechanios* Lien Act* 

The defendant Bernstein in this eaae oannot be heard to 
complain of the desirability of the structure after the same has 
been erected, for there were no restrictions as to the character 
of the improvement under the terms of the lease. 

It was further suggested by complainant that under the 
present statute an owner knowing an improvement is being made must 
object to the improvement; otherwise he knowingly permits the 
improvement, and thereby consents. 

The defendant had actual notice, in writing, on July 6, 
1939, when he signed an application for a permit, which was filed 
with the Oity Fire Department, in order to install gasoline tanks 
on the premises in question* 

From the application signed by the defendant Bernstein 
and offered in evidence, it appenre that oil was to be sold outside 
of a one story building, brick construction, upon the then vac;?nt 
property of the defendant Bernstein; that in July, when Mr, Bernstein 
passed this property he saw aien working and conferring with the 
defendant Imes, the contractor then at work* At that time no 
objection was made by the owner to the contractor regarding the 
construction of the proposed building. Failure of an owner to 
object to the character of the improvement then being made, is an 
indication that he knowingly authorisgd and permitted the improvement 
to go en to completion, and the contractors interested in doing the 
work are entitled to a lien for the amounts due under the terms of 
their several contracts* Friebele v, Schwartz » 164 111. App. 504; 
Hagui SlgQtrio Oo. v. Amusement Pp.. ?36 111. 452. 



i 

e»e^??I #j!# Io ©(SIS'* ®#W !£«JKnxr i^nam^ro^qasl w(# §#• 

•l>Jt«:r)»e fcXoe »d 0* 8.m Xla *«if* 8Ti^»( • ^^^rrsfei-ra «i Jbw^tTco *>«!» 

titPOftT carft s«f* iJOOi' ^flox*OJtrf#cja©o :(I©i;' ^ jXiwrf Y^ote am© »3 to 

a* iC*it» ;3£tirrTsTt:not> J&iia ^i:ir.e-^ «»« w«« »d x:#T:6q©itq Bidt b<bn»»q 
Off ari* #f*ii<^ *A *3fiow *P i«©rit teloisittftott Btit *8»«I #n.e£«ie1:sl> 

©* ^aowo Its t© ©QCirXijrr .^xiJbXxwtf l»«©q©iiT ©if* to aol^oint^eijo© 
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,.t |K£l4rt} Hi fcRtee-rsJnl tito*o t'-P'Xcfiao© ©^ iio ©3 ©Jf 

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,^r^ ^ar ^^^rf-T^^i-iif'f' ;v al»d'.;i'r3 ♦«#0.«rc#fi©o X''(«©T»» TJt©<W 



4 

Tlie building ereoted on the premises is forty by fifty 
feet, and is constructed of cement, briok, and steel, and substan- 
ially built. The foundptions are from five to eight feet in depth, 
and the walls are thirteen inches in thickness. This building, no 
doubt, complies with the city ordinances, at least the structure 
was not objected to by city officials as not complying with city 
regulations* 

The complainant seeks to establish its lien for nine 
overhead doora, which were fastened to and became a part of the 
building. Fxoa the character of the structure, the use for which 
it was ereoted, and the materials used, it Is apparent that the 
improvement was a permanent one* 

The next question to be considered is whether the real 
estate was enhanced in value by the improvement, and if so, was such 
proof necessary under Oh» 88 of Sec* 16 of the Mechanics* Lien law, 
which provides for proof of enhancement in value only where the 
lien claimant pro rates with an incumbrancer. The evidence does 
not disclose that an incumbrance is involved in the litigation such 
as would make proof necessary. For that reason the question of 
enhancement in value of the real estate is not involved, westphal 
V, Berthold. 373 111. App* 366. There is evidence, however, that 
the ereotion off the building did enhance the value of the real estate 
from |6,000 t© |10,000, irtiioh, of course, includes the amount of the 
mechanics* liens* 

It is evident, from the fact that by the construction of 
the building provided for in the lease, defendant Bernstein benefited 
to the extent of from |3S0 to #400 per month rentals. It follows 
that the lease must be considered by the court, which provides for 
a five year term and In the event of a def«ult by the lessees, or 
assigns, in any of the provisions of the lease, the title to the 
improvements shall inure to and become the property of the landlord - 






arid' lo ^fi-eq s &m^^&d Lr 
doi£5wr xol esjy axii^ .STi/ihOiinrft 

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5 

the defendant owner of the real estate. In any event, if title is 
not olaiaed to the inprovement» the landlord has enjoyed the inoome 
by reason of its oonstruotion. 

The defendant had notice of the oonat ruction by being 
personally upon the premisea at the time the work was going on, and 
also by his agent, who oolleoted rent from the lessees for the owner 
and visited the property for that purpose, and who had knowledge of 
the work, and it will be presumed that this knowledge was imparted to 
the defendant landowner, even though the agent did not have authority 
to enter into a contract for the work and thus bind his principal. 
Mutual Construction Oq , v, Bakex. 237 111, App, 596. 

It will not be necessary to consider several motions made 
and reserved by the court to the hearing, for the reason that the 
conclusion of the court disposes of the rights of the parties* 

Zt necessarily follows frcw the conclusion reached by the 
court that the chancellor erred in overruling complainant ^s as well 
as defendant interveners* exceptions to the master* s report, and 
in dismissing the claims for want of equity. Therefore, the decree 
of dismissal is reversed and the cause remanded to the Circuit Court 
of Cook County, with directions that the chancellor enter a decree 
granting the mechanics* liens prayed for in the bill of oomiiaint 
and the defendant interveners* petitions for the several amounts to 
be a lien upon the property of the defendssnt owner* 

OEOEIIE HSTSRSEB ASQ CAU3S 
RKMAIJDED WITH DIRECTIONS, 

HALL, P,J, AND DEHIS E. SULLIVAN, J, OOKOUR. 



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38380 

WESTSRH 3UBURBAii FXiiAfiCIE & THRIFT 
0OMPAHY« a ooxporption. 



▼. 



Appellee, 



EDWARD A. GRAHAU, J(mS DOE, and 
liART ROE, 

AppellantSf 

Oonaolldsted with - 

WESTERH SUBURBAN FIMAHCS & THRIFT 
OOMFAHY, a corporation. 

Appellee, 



EDWARD A. GRAHAM, R. OLARK, JOHK DOE 
and MAHT ROE, 

Appellants. 



APPEALS moU 




MUHICIPAL GOURT 



OF OHICAQO, 



2S5I.A. 587 



m.4 JUStlOE HSBSL DELIVERED THE OPINIOl} OF THE COURT, 
This ia an appeal by the defendants Edward A. Grahaa and 
R« Olarlc from judgments entered by the Municipal Court of Chicago 
i& two actions of replevin instituted by the -Vest Suburban Finance 
tt Thrift Company against these defendants. In each case in the 
Municipal Court, the findings and judgments were in favor of the 
lest Suburban Finance * Thrift Company, The actions of replevin 
Involved the title to certain store fixtures located in two stores 
in the City of Chicago, one at 933 South Western Avenue, and the 
other at 608 South Eedzie Avenue. At the time the replevin suits 
were instituted the defendants were in possession of the personal 
property in these stores. Upon appeal this court has oonsolidated 
for hearing the two appeals, Sos. 38380 and 38381, and permitted the 
filing of one set of abstracts and briefs to cover both oases* No 
questions as to the pleadings are involved, nnd the facts are sub- 
stantially the same in the two appeals, except as to the right of 
the defendant R. Clark to possession of the properties in questbn. 



35 



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3 

The facts upon which these ijudgments were predlor^ttA are, 
substantially, that one Thomas F^aonc, prior to May 1, 1934, had 
operated a chain of butcher shops in the Oity of Chioago. One of 
the shops was loo^^ted at 933 South Western Avenue, and another at 
608 South Kedzle Avenue. On May 1, 1934, Falone went to the plain- 
tiff, th« West Suburban Finance and Thrift OcMapany, s corporation 
engaged in the general finance business and in lending money, and 
borrowed fron plaintiff $1,500. As a condition to making the loan, 
the plaintiff required Falone to execute bills of iale covering ths 
fixtures located in the stores at 933 South 'Western Avenue and 608 
Kedzie Avenue* At this tiae Falone and the plaintiff entered into 
what is called a conditional sales contract as to eae|^ of the stores, 
under the terms of which the plaintiff purported to resell to Falone 
the fixtures in the store at 933 South Western Avenue for the axm 
of S600, payable in monthly installments of 1^50, and the fixtures 
in the store at 608 South Kcdzie Avenue for the sum of ^43, payable 
in ttonthly instsaiments of #53*60, title to be in the plaintiff until 
payments were made* 

Of the total amount borrowed, and there seems to be no 
question that the money was loaned to Falone under the terms of 
the agreements just described, Falone repaid $300 to be applied on 
the oontraets* 

Ob. September 30, 1934, Thomas Falone executed an agreement, 
which is referred to in the briefs as an assignment for the benefit 
of the creditors, to Edward A* Graham, as trustee, Ut)on the execu- 
tion of the contract for the benefit of creditors, Edward A, Graham 
took possession of the stores located at 933 South estern Avenue 
and 608 South Kedzie Avenue, and operated a meat market at each 
location* Thereafter, on February 21, 1935, Graham sold the fix- 
tures located in the Kedzie Avenue store to the defendant Clark for 



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•r'fotJ ;rfixre«< 



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tot tTBiU ta^.ba9\9b sxltf o* »io*» ©waav^ »ia*tX 9rf# at bBir.ool BBtat 



3 

$1500« It is aloo a part of the record that on Septeabtr 89, 1934, 
Qraham addressed a letter to all of the eredltore of Thoatae Falone 
advlalng them of the execution of the aasignment for the benefit 
of oreditora, and also advising them that he had taken over the 
operation of the stores and of his intention to assume the manrge- 
ment and superviaion thereof, and to pay the creditors out of the 
proceeds of the operation, and further advising them of his intention 
to reoonvey his establishments to Falone on payment in full to the 
oxeditors* 

During the course of the trial there was introduced in 
the case nov here on appeal, an assignment for the benefit of cred- 
itors, dated January 9, 1935« fhis assignment was signed, by Falone, 
Graham and a n\mber of the creditors of Falone* On March 6, 1935, 
the plaintiff served notice on ara&am claiming title to the fixtures 
in the two stores and demanding possession thereof, which was refused, 
and as a result two actions of replevin were instituted by the plains 
tiff, and the oourt^ upon a hearing, found right to possession of 
the property to be in the plaintiff, and entered such jiidgment* 

7hs defendants contend that the transaction between Thomas 
Falone and the plaintiff, while in form purporting to be a conditional 
sales contract, was in faot a chattel mortgage to secure the amount 
of money loaned by the plaintiff, and the fact that the instruments 
were not recorded made them void as against the rights of the creditor 
who were in possession of the property through their assignee or 
trustee, and also as agaiioit the defendant E* Clark* 

It is a well established doctrine of law in this State 
that where a bill of sale is given as security to provide for the 
paywmt of an account, it is held to be a chattel mortgage, and this 
was reiterated in a case entitled. The Southern Siarety Oompany v. 
The People's Stste Bank of Astoria. 332 Ill«, 562, where it is said: 



~^^. > iiBai &di 9fBij .iotiafP'i^ ap. ssaote od* ^o Rott^^r^qc 

»tf# to *uo an;oti£>ato sii& x*<i oi- Jba* ^ta^r&iijr aoi9JtwrBriyx> .«« 

olfnsj.ti eirt to fl»ed# sflisivfcB i[9iI;^TJUlr £>as »aol#j5i«>qa 9dt lo «ilb«ftOOirq 

-feeio lo *i'i9fle)J «il^t tot isx^ntti^tBBJS as. ^l£9cps wo ai«if wc« »8jro atft 

< 1 ifoifiA'; nO ,9fxoXp^> "iv e^toJilrsTo f?d;f 1:3 T»€Uawfl Jt bos «u»£LsTi9 

.'• 5l^.^^ -^irir^^.telo Esil ... , oartaa tlitaJtfllq edit 

1381.- ,■ ...ccaoriKKr >nil>0Bia3fc bWR isaio** 0'y;f 9d* fli 

to iigJtE: .. :,,^-- ^^^ »:.■■:■ ^:f Wj06 'Wf* ^ae ,1:11# 

r^RrvT') 9rf;t lo etftfslt ?f;':f i ar; 1 r:.:f p.- li^v ■ti.di ^tuAt. Jbie.t'too&i toa ©rtaw 

,-/i r , ;■ -.'h.ri -"> ^ 'j^C-T ?>/.'.ft ^ •:« «j i p,f rT J 

^rilf ^^' o^^«•^• ,, ^«^^, ...... „,.... 



"A bill of sale giren as stourity to provide meana of 
payment haa been held to be a chattel mortgage, ( ffhittemore 
▼• ^laher. 133 111. 245.) A bill of sale with a oontem- 
poraneoua agreement to re-oonvey upon payment is a chattel 
mortgage, ( Uohaa t. Gordon v, Hiohey . 163 111, 530; Martin 
T. Dunoan. 156 id. 274.) ^If this instrument had been ack- 
nowledged and recorded, as provided by statute, or if 
poasesaion had been delivered to plaintiff in error at the 
tiflM of its execution, there could be no question p.b to its 
validity as a chattel mortgage. The agreement conveyed 
legal title as security by language of bargain and sale, 
possession remaining with the transferer* The essence of 
a chattel mortgage is the intention to transfer title to 
secure the performance of an obligation by the mortgagor, 
and a transfer of title to secure a contingent liability 
is a valid ekiOital mortgage* •• 

The reply of the plaintiff to this contention is that the 

property was in the possession of Falone by the provisions of a 

aenditional sales contract, and that he did not have any title to 

the store fixtures in question at the time he turned over his business; 

as is claimed, to Graham, for the purpose of operating meat markets, 

and fran the profits to pay the claims of the various creditors. It 

Is the rule in this State that such contracts are reo^nized as valid 

oontraets between the parties, and this is made so by the Uniform 

Sales Act, Seo. 35, Oh, 131a, par. 38, et sea. 111, at. Bar 3ts, 1935, 

which provides that where personal property is sold, delivery of the 

property may be made to the buyer and title reserved in the seller 

until the purchase price has been paid. Hixon v. Ward. 254 111, App» 

505» 

Fxem the facts it is clear th^^t Th^ias Falone was in 

possession of these store fixtures as owner at the time the agreements 
described in this opinion were entered into between him and the plain- 
tiff. There is no evidence that Falone delivered pttssesslon of the 
fixtures to the plaintiff except by symbolic delivery of the oontraott 
that are a park of this litigation, and he continued to remain in 
possession after the execution of the bill of sale and the execution 
Of a conditional sales contract by the plaintiff, which provided 
that Falone should remain in possession without title until he had 
made the payments required by the contract, when he would then retiin 

tltla to the property. 



Bttcj'r 



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sifi tTrit ei floid-rtetffoo aiif* ©# Ititnlalq erf* TuG XI^«iE ftitT 
-''^7 0» ^*«in3o©«« arrjs ejTo*-^ +'**'"^ -^^ *>"•■■ •' '^^ ♦s-t ..tft 8 lit* ei •I&7 axft ti 

•60d 

*/iefii0ft'; '^mii 9/. two 8« eft^jtrtf^xJfi &ii>f9 9e9di tc aalBUBBBoq 

alslq •-- V7j»d otai betBtao > 'itiii al b»<Str99Bb 

d to noiaeftewq fiattorlX »t9I1T .ni# 



for the benefit of oredltoxe is regarded as takiru^ the esme rights 
to the property transferred to him as the : esignor had, hut no 
greater, and concede that as between Fcione and the ^'ept 
Suburban Finance & Thrift Company, the agreement of May 1, 1934, is 
yalid, but while admitting that the contra cts a e good as between 
the parties, the defendants contend that there is Qn exception to 
the rxile that where posseepion of property is taken by an assignee 
who holds it for the benefit of the creditors the right of the 
aesignee is superior to the right of a mortgagee named in an un- 
recorded chattel mortgage, «nd rely on ">ec, 1 of the Illinois 
Chattel Mortgage Act, which isj 

*Ho mortgage, trust deed or other conveyance of personal 
property having the effect of a mortgnge or lien upon 
such property, shall be vi,Xid as a^iainst the rights and 
interests of any third person, unless poss ssion ther> of 
shall be delivered to and remain with the grsntee, or the 
ins ruaent shall provide for the posseBsiori of the property 
to remain with the grantor, and the instrument is ackno.vledged 
and recorded (or filed) as hereinafter directed; and every 
such instrument shall, for the purposes of th^s Act, be 
deemed a otmttel mortgage." 

And further, the defendants rely on the case of Gubbins v. -ouitable 

Trust Oo .. 80 111, ^p^i, 17, as having a bearing upoE the contention 

above stated, that is, that the right of an assignee in possession 

for the benefit of creditors is superior to that of the holder of 

an unrecorded chattel mortgage. The court there said, in parts 

"Although the general proposition is that an assignee in 
insolvency for the benefit of crej iters, stands oiay in 
the place of the assignor as respects the property of the 
latter, it would be anomalous if in the case of & chattel 
mortgage invalid as to creditors, it should be held to 
be valid as agoinet the assignee who is a trustee for the 
creditors. 

As illustrated in the Hew York Court of Appeals 
decision, referred to in the Bak^r oa-e, if the assignee 
takes no title ngainet the mortgagee in such a csee, it 
would follow th- t a creditor mi ht, after the sr-signment, 
obtain .iuo.-ment, have erecutior isnued, and thus acouire 
a lien superior to both that of the mortgagee and asiignee. 

At the time Falone signed the ourporte*? contraots turr ing 



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6 

over the properties to Edward A, Grahaun, aa trustee for the benefit 

of creditors, Falone was without title to the fixtures contained in 

the two stores in question, and these conditional sales oontraots 

provide that ownership of and title to the described properties are 

to reoain in the plaintiff until all of the indebtedness is paid ia 

oash, and that thereupcm title shall pass to l*'alone. The contracts 

being MaAiAg upon the foraer owner of the properties he, Falone, 

unquestionably, could not convey any better title than he had, and 

this fact was admitted by the defendants. 

As stated before in this opinion, this form of contract is 

approved under the Uniform Sales Act, which was in effect prior to 

the transaction now under consideration. In the execution of the 

documents conveying title to the plaintiff and from the plaintiff to 

Falone, there were no representations made upon which the creditors 

relied to their damage, nor was the conduct of the plaintiff such 

as would preclude it from denying the seller's authority to convey. 

Upon this question our Supreme Court has laid down the rule, by 

which we believe this ooxirt should be governed, in the case of 

Sherer-Glllett Oo « v. Long. 318 111, 438* The court said; 

"that representation has appellee made upon which appellant 
has relied to his damage? What conduct of appellee pre- 
cludes it from denying the seller's authority to sell? It 
did not clothe Taylor with indicia of title. Clothing 
another person with indicia of ownership does not mean simply 
giving him possession of a chattel. Possession is one of the 
indications of title, but possession may be delivered by 
the owner to a lessee, a bailee, an agent or a servant. 
Owners of chattels must frequently entrust others with their 
possession, and the affairs of men could not be conducted 
unless they could do so with safety, so long as the possession 
of the chattel is not accompanied by some indicivim of owner- 
ship or the right to sell, (Drain v. La Grange State Bank, 
supra, ) " 

And the court then said: 

"The Uniform Sales act recognises the validity of such 
contracts and specifically provides th?>t no title can be 
passed by tiie purchi^ser of goods under such a contract 



-■■i;fi9goie jb©<?it©*i- 






*I V. 



•Ii*> 



•isfc flriollrfU BAi tBtau b^ro-xqqm 
'i9iaimto& %»bAti won R&i:tt>B9iL^%i ndi 



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'imless the owner of the goods is by his conduct pre- 
cluded from denying the seller's authority to aell,' 
There is no basis for the operation of an estoppel 
in this record," 

In the instant case there is nothing in the record which 
would indicate th^t the plaintiff is estopped from asserting its 
right to the ch8,ttels recovered in this replevin suit from the 
defendant, vho wfis in possession. 

The conclusions we have reached in the instant case would 
apply to the claim of R* ^lark, who makes the point that he was 
a purchaser for value and without notice of plaintiff's claim, upon 
the theory that the contract between the plaintiff and Falone was 
but a chattel mortgage, and not being recorded, is void as to Clark. 

Although there is aomd question as to proof offered by 
Clark of the purchase of the store fixtures, and it is not altogether 
clear just how the transaction was negotiated, it will not be 
necessary to go into the details of the alleged purchase. In the 
transaction, however, Graham could transfer the chattels only with 
such title SA Falone was able to give^.and Falone not having title 
to the fixtures could not transfer the chattels. 

For the reasons stated in this opinion, the judgments of 
the Munioip€uL Oourt are affirmed* 

JUI9&MEHTS AFFIRMED. 

HALL, P.J. AlID BSMIS E. SULLIVAK, J. CONCUR, 



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38 381 

WEST SUBUSBAK FINANCE * THRIFT COMPANY, 

Appellee, 



a oorporatlon. 




EDWARD A. GRAHAM, JOHN DOE, and MAPI 

Appellants* 

Consolidated with - 

WEST 3UBUR3AH FINANCE AND THRIFT OOMPAKT, 
a oorporatioB, 

Appellee, 



EDWARD A. (mAHAMt H. CLAHK, JOHN DOE, and 
HAHT ROE, 

Appellants* 



^PEALS FROM 



MUfilOIPAL COURT 



OF CHICAGO* 



3 5I.A. 5 87 






liR* JUSTICE HEBEI. DELIVERED THE Oi-IHIOH OF THE COURT. 

This is an appeal by R* Clark from a judgment entered in 
the Mimiclpal Court of Chieago in an aotion of replevin instituted 
by the West Suburban Finance & Thrift Company, a oorporation, against 
hiaty azMi the court, at the eonolusion of the hearing, found the 
Tight to possession of the chattels described in the replevin writ 
to be in the plaintiff, and entered judgaent upon such finding. 

What we have said in our opinion in Case Bo. 38380, 
with which this proceeding was consolidated for the purpose of a 
hearing, is controlling upon the questions called to our attention 
by this defendant, and for the reasons ststed in that opinion, the 
Judgment entered in the Municipal Court is affirmed. 

JUDQMEKT AFFIRMED. 



HALL, P.J. AID DENIS I. SULLIVAN, J. CONCUR* 



Moin I 



fJ5UO0 



j&aXiaa' 



.k.\iiiJ 



I8S85 

T£S.W 









e>£Ei! «atoc ii!K»% «3^jhi€' «n ^uAmm?i u aHA^raa 















< rfTirig fyii$ nl 9<f 0* 
.A/M ftrfd- ill fj®«r»#xi» #fl«ffli3Jbjtr{; 



•ill 



a CSA .^.l «uLUH 



38430 

SOUTH SHORE SECURITIES CO,, 
a oorporatlon. 

Appellee, 



JOHH S. HEWBERO, et al» 

Appellants* 



APPEAL 




OiaOUIT COURT 



JOOK COUNTY, 



^8 5i.A. 5 87 



4- 



MR. JUSTICE HEBEL DELIVERED THE OPIKIOH OF THE COURT. 

On May 33, 1933, plaintiff oaused a judgment by oonfesaion 
to De entered for the sum of |4»516,71 against the defendants, 
afterwarde confirmed by the court upon a hearing. From this judg- 
ment the defendants appeal. 

The declaration filed by plaintiff alleges that the 
defendants for valuable oonsideration had delivered to the plaintiff 
a certain iiffltrument of guaranty, whereby defendants guaranteed 
the full payment of a promiasoiTr note for :|4,900, signed by one 
Margaret J. Dafls, and secured by a junior mortga|p» upon the 
property therein described. 

On July 11, 1933, defendants filed their petition to 
open and vacate the judgment, and on July 14, 1933, Judge Lynch 
opened the said judgment^ with leave to plead. On December 3, 1934, 
the oamae was reached on the call, and the court entered an order 
that the judgment be vacated and set aside on ex parte motion. This 
order of December 3d was vacated on December 4, 1934« 

It appears from the record that plaintiff had loaned to 
the Charles Ringer Oompany #3900 on a note signed by Margaret J. 
Davis, secured by a junior mortgage on property not here in question, 
and upon a guaranty of said note by defendants. The defendant 
John £• Newberg was in the business of contracting for the construo"- 
tion of buildings. In July, 1938, he was approached by Earner Johnsonj 









,YTKI.rOD 3D0O- 



T8S .A.I S8^ 



•Ije ^-'i t^XCv-^Lfe ,iil SIJOL 



"^ C^^ ^ .a;?aJSIX»^QA 



loJseSlflOO Xf* ^ffSKijLjtft, ^ b®rr : ^ i ^ ^''M t5S "^^sM isO 

^Bta^banliQjh stfd- i'aixi^sij if«t)Xot*'# "to iit/e ©rfi- i:o1: Jbatft^a© »cf o# 

•too ynB bBti^iB tOoe^: ;r<?« TCE06gii!SO"i:q e lo ^nsfaxAQ XXirl: •rf# 

o^r ff»i*li-e»q :tidj(f* b9li\ 9itni^ha&\9b ,S56I ,XI x-^^l. 00 

BidT .nol^osi qj-xjjc? xa «o saie:- J-** /bobt M jTHWHgfitij; erf* !f«if* 

,*r . ^ :'3rfia«coa no b^^^eopv aam Jbfi TOdnaosQ lo rsbto 

.L ^•iB'ST'?! xc/ tftiijiip «G OO^St X^«fTttoO T^^aifl 8*XTiiif8 •*# 

te^bas'iBt 9ti1 »e&n^ba9l9t xcf t>icn blAm lO yttasiietrs * xioqxf iusa 
-^£fT^Ba«e 9tit 10) sni^osx^tnoo lo a8*ixXax;<f »iit a.i sisv s^tecTwaX vS attol 



3 

an ag«nt for the Oharles Ringer Oompany, a real estate firm, and 
t^d about the lot in question. The defendant examined thelot^ 
whloh was prioed to him at $5500 » and shortly thereafter advised 
Johnson he vould buy the lot for $5500 if the owner wotild aooept a 
second mortgage note signed by Margaret J, DaTis, on which there 
remained due the sua of |4,900, as part payment. Later Johnson 
advised the defendant that the owner would accept his proposition 
and asked hia to call at the office of the Charles Ringer Company 
for the purpose of signing the contract of purchase. The contract 
W39.8 signed by the defendants, and provided that Lawrence Mills 
would sell the lot for #5500 and accept the |4,900 Davis note, 
secured by a second mortgage, as part payment thereof by the 
defendants* 

The defendants paid $300 earnest money to the Charles 
Ringer Company* Later the Rii^er Company notified defendant Newberg 
that title to the lot had been brought down and was good, and 
requested him to close the deaJL. On August 38, 1938, defendants 
paid the additional sua of $400 and delivered the Saris note for 
|4,900, together with the trust deed, to the Charles Singer Company, 
and were Informed by the Oompany that it would record the deed^ 

The Charles Ringer Company deposited the Newberg bheck for 
#400 in the bank and received credit for the amount, aiid two days 
thereafter, on August 30, 1928, £lmer Johnson, the agent acting 
for the Ringer Company in the real estate transaction, called at 
defendants' home and requested the defendants to sign a guaranty of 
the Davis note. Defendant Kewberg stated at the time he did not 
like to stgn tuoh paper, and Elmer Johnson explained that the 
Charles ^nger Oompany had acquired the Davis note and mortgage, and 
desired to borrow money on it from the South Shore Securities Company* 
Johnson also stated that plaintiff in the Instant case was a member 
of the Charles Ringer organisation, and th^t "It will look better 



^tox»d& t»aimsx9 fn^ta^'i^b arfT *noiita9u9 at iel 9dt *«od.s blot 

b9%lvb}-i nstifsri^df t-£^;fiorfa tan ,00<^3| ^n aid oi fceoliq sbw doiibr 

« tqsoo.« ifiatm xsiSfwo siiit li OOSS'^ 101 iol ©rfd- x^ Jbli/ow »ri nesmfol* 

•TWf* riolrfw no ,8xv^Cr •!, d-$a^3«EJ5M \cf i>9nsxe ©d^on ©;^3w-xoai l)aooe8 

fl»tnf?^L iftf/^a ,#fl««itA4 *l^«<? 8« «O0e,<^t ^o «£ft 9iit »«iJb iJsnljBfiist 

flOJt#l»oqoTc tiff ftr^'^f*.'^ BXt/ow rt«nw> '^rU* t^^r^* tn,'*£Mi*"^«l) »dt bBBtrhB 

fiioo ««ff •»»#dy^*ri.' '^T^rr-?© ^ff* ^iflsi> •■CKjis^i- arid' rdt 

t9#oa 8ir«r 0(%t*f Xs>e i^Ii/ow 

3'»ri/«ri0 Sri* o* Y®^®"* *99K*'^ -tn^fiwelst) »riT 

fenB tfooojj 8s^ fin- :( ;?oI sri* o* slttt tRdt 

Bta^aelQb ^BS^l t vrgifA aO .Xsefc i; folo o^ aid l5e>*8»wp»Tt 

tro*i ston strM& »fi* J&»T»vile.^ Jjfrs 'X>K^ Jo ».l> J. iffoltlBJb^ ©if* M*q 

^v^■.<-mC^O tSSfli: BSXlBffO 9^t oa' 4 ..;■:::<■ ;?£[* delis' iaifi-»§©* ,00€^-^$ 

»:>eQfc sffj 510091 5Iuow iJ-i iferit Yfl*?<T»o5:^ ^* X<^ ibeaiiotixi: e«tsir tea 

tol ;fO«lltf Siscfws?! eu* i59*l6o<-^: vri^'iroC ^:>siMH aelrcAXfO ©ifT 

*« fe©IXa» ,flol^:f'> p"^ -^ ^- . ^ ..' ' 10^ 

ton blfa erf twBi* »rf* *» fce^t^'rf'e ^iftcfwdH tn«f>fl»'T«G ,e*ofl Biyjsa •!(# 

»rit ttAt l)enl'^Lqx9 iioeaxloT> tOffiXI tejB «i:eorBs t^^^i^a 'isA* ^^ *^^^ 

ban ^s-ytjji^oJB bofi »*on BiTRG wfJ t^ii^poe Iwwf x£t<«<i*s»C it^iH B»lr&&0 

jftMqaicO %9liliuo9ii tnod? dtuoZ i>r.i .-si^t" \il no x»no« irotTOcT o* Jb»Tjt««ib 

t«(fKM» « •»« •e«o *fle*«ni •dit ,- ,_ ..^ _., :fprf* fea»,^;f8 oaX« aoaiutoli 



3 

If you sign the guaranty, and you don't hare to b« afraid, because 
you are not getting anything for it and you don't have to pay 
anything," Thereupon the defendants signed the guaranty in 
question. At the time of signing the guaranty, a letter was signed 
hy the defendants authorizing the plaintiff to recognize the Charles 
Ringer Oompaiqr as the owner of the Davis note, and certifying the 
amount still due thereon* 

From the reoord it does not appear that plaintiff offered 
any evidence except admission hy the plaintiff of the execution of 
the guaranty, which the court considered, but upon what theory the 
amount ©f the judgment was fixed, is not clear from the reoord. 

The principal point made by the defendants is that the 
court held, ae a matter of lav, it was necessary that the signed 
guaranty be based upon a consideration* While there is no evidence 
of any consideration received by the defenda,nts trtien the guaranty 
was signed, there is evidence that the contract for the purchase of 
the lot had already been signed and eattb paid, together with delivery 
of the Davie note secured by a trust deed to the Oharles Hinger 
Company before the signing of the guaranty by the defendants* There 
is some evidence that the Oharles Hinger Companjp and the plaintiff 
oonpany were controlled by the same stockholders, end that the 
of floors were aiembers of both organizations* From the record it is 
clear that Johnson, the agent who appeared for the Oharles dinger 
Company, aeted for this company and was instrumental in negotiating 
the sale of the lot to the defendants and in inducing the defendants 
to sign the guaranty. The reoord also shows that Johnson was an 
officer and a member of the plaintiff organization. 



X»4 of exsd t *a«b uax ^^^ ^i- 'I'^t sfliri^^gaa axxi^ifag t&n &ir 
»l*fli«Iq 9iit bm ttmorptosi rs's^ntii »»XsisifO s>^^ t.r,di •<»££»&iT3 9«o8 ftX 



4 

The general rule of law, supported by the authorities. 
Is that where an aooomaodation guaranty is Issued without consider- 
ation, no recovery can be had thereon by the original payee against 
an aoooaaraodation maker, unlese upon a consideration. Keenan v« 
Blue. 340 111. 177* 

For the reasons stated, the evidence does not justify 
the entry of the judgment in this proceeding. The judgment is 
reversed and the cause remanded for a new trial, 

M7ER3£D AKD MMAHDEQ, 

HALi., p«j. Am nmis £• sox.li?a£, j« ooitoua. 



Jan if. ■ Liia*S»-t^vi ^-^ 



^JJAK 



38537 

B4LCUNAi3, 

Appellants, 



i >tpoelleee. 



V 




PKAL FRO 

MUNICIPAL . 
OF CHICAOO. 



285 I.A. 588 



MR. JUMIOBi km%h DaLI?KR=;D THR OPIHIOS OF THE 



COUf?T. 



In this action Ins'tltnte?' by the nlrintiffe In 
the Municipal -ourt of Ghlosgo, a trial was h?A before the 
court without a Jury r?-nd a judgment entere*? finding the ismeB 
agf.lnBt the plnintiffe, fros:; shieh 3u'.^;Qjeat the pi intlffe 
appeal. 

Plaintiffs' etrteaent of claim 1p baeea upon a 
contraot under »e?.l ent,erecl into by both the pi intiffs and 
the defendants ou January 28, 193S, wnerein the defendants, 
described as psrtie? of the secoad pfirt, olnia to hsre 3n 
interest in cert;- in ineurance poUcies in pos'-:'eRf:^iOi: of the 
plsintiffB, *ao r-tre deRcribea as the ;>srtlee of the ■ irst 
part, i?hiloh policies wer ■ isfm:d u-^on the life of one " illlan 
H^lljoelUB, who died on or -bout J -wry 21, 1933. The po vciee 
fsers made p y^^ble to his estate, 

T"roj3 thie contr-'.ct it ^poeare that the deffndrnte 
are the next of kin oi the deceased, *ho left no purviring 
?rlfe or children, or other hairs or next of kin entitled to 
eh'irK In the prooee'^)p of the pc icies; th?t the pi intlffe 
hold eert?=ln policies on the life of the dfice->8ed aggxeRstlng 



-1- 



\ 



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▼W«€ 



, >Sn 



,KlJ 



5^^H „i\JS8S 



yi^ivtyiM" Off .tl^r ^h##ff#«#1h 



»tsi:f 



tbe exiffl of |3,642, and clsiai th t they hhve been ut to 
expen@« in furnishing •«(Slc?'l aid to the r^eceaped, and have 
alao Incurred liability for funer-^1 co^ts, servioee and arr nge- 
■cate in connection «ith the burial of the deceased. By 
reacon of theee negotiations, the contreot in nzestion was 
prepared by the attorney, ?5h© appeared for the defendantB at 
the time the negotiation^^ wer had, snd it «9e agr'vjd betwetft 
the p.- rties that the pi' intiff e were to r ceive from the pro- 
eeeds of the policies in th^lr poe^esiBioa the mxm of #900 
in full settlement of all oeste incurred in caring for the 
deceased fluring hialast illnegs and for reiiabursements for 
all funeral costs and expensei*, and th-t there w&s to be 
deducted from this Bxm |150 to be paid to the defendants 
for the purchase of s ceajetery lot and the erection of a 
tombetone upon the gr^tve of t e rieceaaed; ttjat the remainder 
ef the proceeds collected from t e insurance oompaniee was 
to be ecftially divided between the plrsintiffs, as partiee of 
the first part, and the deiendants, as partiee of the eecond 
partj^afu^r certain deduction© wer^ ?sllowed. The pi? in; if fs 
Olain the sub of 11,360.77. 

The def&ad'3ntf5 by their sfiidsvit of nserit- deny 
that pl«jintix/e are entitled to recover, for the reason th^'t the 
defendant Ang^ela fclijogima was inf'uoed to sif n the «»lleged 
oontraot attached to r>inintiffs« st.rtement of claiai by fraudu- 
lent representations ©ade to ber by the olaintiffs; that they 
represented that the deceaRed, ■ illi^^m «'liJoeiUB, 1 ft a 
will giving ©11 of the property to Eleanor Bnlcunae, one of 
the plslntlffs, and that the reprasent''>tion was false, and 
knewa sy the ol'intiffe to be false; that nhe deoea-^ed 
Gillian ilijoglue died inteetate, nnd th^t the EtTtements 



0& ta asfrd avi^d. v^tft i'ldt taXalo hxr «SJ^«£^ le man mit 
■♦311 It p feu? =.^ol7 o*Is 

■ ■ ^ ■-I *!»3p»a5»i> 

3s«»OOtO[ Wf* to 
Bill Gi^fajtfiic 



■o:(^i fiii? ,^ttiirjti: -Tic &d9 

•stiif 9rfl *«rf# hay ^9ir\t»9iial bBtb «i*i»ot;lX-* •«iIXi* 



■Ade by the pl?intiffB were for the purpoee of defrnudlng 
the defifCdants. 

From the evidence it sppears that for eometime 
prior to J'r'nuary 21, 1933, Illia« 'ilijoelu*, a bachelor, hnd 
occupied a room in t e pr-jmlpee at 663 Jest X4th Place owned 
by the ol-inttff, Anthony alcvmps; thnt pl^^intiff hid 
advanced money on lo-^iis, for premixaiB on sever'^l 8m«ll Indue- 
trlaX insurance policlss and aleo for his fflsintensnce; that 
both of the plaintiffs were fellow Gountrynen of iHjam 
Slijoelue find had befriended hiai in their home, end on 
April 11, 1932, viijositts executed a will ber^ueathinti t4 
Kre. Bsloiinas all hie property - * including all the ini^^urance 
aoney on policies in foroe at the time of my death * • • 
for her kind acts for meny years while I wae out of employment, 
in furnishing me, without compensation, board, lodging ?nd other 
aeoeselties of life including i^ymsnt on insurance remiumB," 

Upon the death of the ineured the pl'^intiffs had in 
their posssBieion insurance -oolieies, which wer in force '"nd 
payable to insured* s est-'.te, and f^ums collected ;« followe: 



Amount 
of 
policy We. lasur noe Qompany Policy 
7564054 veivtern & southern 1295 
6083512 " " 660 



9126037 " 

9308560 •• 

109512337 Metropolitan 
110705615 * 



6765S54 :>ai*iricfln K'=)tion'»l 
6765553 * " 

6131945 iiutunl Life 

86094543 Prudential Life 



soo 

98 
336 



245 
294 

464. 
5C0 



ffiovint 
Oollected 

1990,27 



50.96 



626.88 

87.50 
87.50 

336,00 
■'02.50 



Oollected 

Ey 
Administrator 



Pl-intiffi 



iidminlstrptor 

krs. ?.ebaa 
Plaintiff? 

"dainistri^tor 
inna Zebae 



§3,680. '2,681.61 



-3- 



r..rr .■,.■• ■ b«iq*rooo 

. •■^fi' tax sic ail* x<* 

^'mi.\x '■: 9£ft to diio4 



■ : '^0?-)fl 



Vf.Q^^. rf? 






-&- 



I'tiere *«r . also two otiier polieiee a^ferefe&tiwg 
|700 or ^300, issued by the John Hsncock Life Ineuranoe Oo«- 
pany wherein the plaintiff Anthony Balcunas war? naaad as 
beneficiary, 

When the Insured died on Janu'^ry 21, 1933, the 
plaintiffs notified Anna l^cOtoss, sister of the deceased, of 
hie death, arranged for his funeral and as uaed the burial 
expenses of |530,50, 

It cTppeara froos t e evidence that a oontroverey 
aroee between the pl-^intlff? and the defendants ??bout the 
Insurance proceeds, whereupon the olsintiff Anthony L^Blcunas 
offered to surrender t e po?. ioies he held piy?-ble to the ertate. 
If the relatlvas would pay the funeral bllle and Indebtedness 
0S Slijoslus to hl«. As a remi t of thl« offer, the nsrtlee 
aet on January 2Q, 1933, at the office of dsf ndante* attorney 
who pr pared the above leentioned contract, which was sitned 
by the plaintiffs and also by %na SSebas and Angela JSlljosius, 
elsters of the deceased, and his brother » Rafalaa ^Jilijossius. 
Thereupon, under the terag of the contract, the plaintiffs 
surrendered poeeeseioii of the int^urance policiee aggregating 
approximately |3,642, upon which collect ions were oade by the 
plaintiffs and the defendants aaounting to spproxiaately |S, 681,61. 
Buhsequcnt to the date of :he agreawent the defendant, Mra, -inna 
Zehas, the only relative of the deceased residing in Illinois, had 
her son John Kebse appointed administrator of the estate, 

i^urln^'; the trial of he ease, the lr;et will and tep.taaent 
ef William Sli^oeiua w^s filed by the plaintiffs' attorney with 
the Clerk of the Prob"te Court of Oook County, B.ttd fro* the 
record it appears that the pl?5in^iffB aseerted their rights 
under the contract si aed by the parties, and the def'ndRntB 
having; collected the proceeds of the policiee refused to pay to 



^.i-: < . . ..^ x<t3fi^-8J» ft.© .feai^ ti&^arfEai ©li^ nstf/ 
Xaiawd »iC* f?««iri - l?t%ix^i Visa -sot b»8afi!ia;j55 ,«(#««.6 fid 

j^il* t;T-tcfr -^titt^fc^ t»|i ^^.t Sjfflt? s'iSli^Witf^'-XQ, «d^ i(»««ri^»<5 •t9i[ft 
grfl!.., ittni -j, .n(?jrrt«T«<ftr ,s6»»90*i:q «oaettt/eai 

^ .ffijtil p* «iil5iOtii:» lo 

,effX«?otiX- el-. cf 08 X« jboj' !«iltX*«l^'XQ tlU xtf 

: •■, YX<-:.J'-Ki';c\ ift+iJ&d'.lsR ad.'' tas elli^aicla 

( infill lii :^feisdT bv:--'':ftss?^ »ji3 -. - _:^-_ - ',.Illo »1rt ,r!-.d©S 



• 


?£(* to to:! 




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f>ri 


:<-i" ;..nf. 


»>cf.i 


ll 


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9;tfi80,i;ir.> f. •■-: 


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ffcrt'? ari:^ '' 




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;0. re 


- 7*arc 


DfiiSJy 



ml 'Mifl'sT .j>loi'. "" ftflcrr, -in'-n'O ^niv^d 



tHa pir.intlifs the fj«./unt. due tfaam undor ix^ t .^rrap, 

l^oa fn exRsin»tlou of the last will r^ud te^taaeat 
•f illlan illjofvlu* it app«ar» th«t tb« plaintiff til«r,noY 
BAleosis, fta lagftt^e, w^!» te reoelvd ^ai of tbe t^f^t^ntor't 
piop^rtjr, «hloh iacluded all tbe iaAiurano« «on«y oo«ln4< dut 
en the life IneurKaoe policies at th« ti«e of tti>.tetQr*fl 
deaths mad fron tli« wlXX it is «vi<S«iift »by th« te^t tor aad« 
tlii» pi' intlJti the «ole ^«(g74t«e. 

Xt ia app-?r3fit frsa ths* f^otP i^s herein ^tfited tost 
% oontreveTey %ro*« b«%ve*B ttee parties sad upofi ooalng to %a 
»gT«eaeat tb« ©oatr'^ct ^ ioh li? bo* the aubjeot of thl« liti- 
gatioa iia«r fitatarf^d iato upoa suffleisat oonsi^ler^tion. Uadar 
tfeia eoatrset tb« pl^latlff KlaaaoT Bsloua»» wTived bey right 
at tbo «ol« li^st«« iiB-^«r tto« will of the t« trstor, sad < athony 
Bmlo\t»a8 rela^std his elsi» s* t e nelcier of n nr^ta *ad «»• 
relieved of hi? oMlg^tiOK to o&y thm burial exponse?. of tiM 
Ab9'^b«(4 ».aouatlBg to $&:^o,50 

Xa «i|^uiiit^ this ©ontr^ot the def ndaate aoted upoa 
MtTiOo of eeyu:iB«l, s>ho sot oaiy pj^er^Tgd th« eoa r ct, but ^leo 
%dTi««d tlie 4«f a^rvBts ia r;g«rd t© thffir rights, aad a« a 
re«ult tteo ooa yovisrtod el l«« of the reypv.ctive partia «ero 
a«ttl«d nad thle ooatr- at «ep enter©" iato. 

Ttee OQurte eaoour^fO the ><ija t»«at of coatroTereiae 
of this ohR3P?*ot«r, ?ad la the ctro of tioiaaoyioh ▼. -Igeth. 549 
111. My the ^pT^ms '^ourt upon - like Tueotion «■ id: 

•Courts of erultjr f«TOr tbo gottle.e t of dispute* ^^mong 
a««b«r9 of « ft?«lly by pgre aeat rather th?a by r- sort to 
l»w, sad the validity of suob contr' ot« ft « b-^en repeatedly 
r co^aired by this eourt. (Cole ▼. i'ole, '?92 III. IM.) Tbo 
aaster f-nd chsneellor ^e/-: woll ^»rr .nt«i In fltidla*. thoX 
tbo -^reeaeat h«re InvolYe'i «^e free froa fr^ud or *la- 
repx'j'ect'^tloa. e eee ao guf Ici-^nt b'Sie for ?»c-^edln» to 

-5- 









ubi^ 



^ifi3 






fti{:f 






Mrc, Sleeth's contentioii th-it fmre w«a present a fiduciary 
r ■jlatlouehlp between nar and the others vsho fisre oot.cernec! 
In ite ffl- king. ( VaoGund y v. -Steele . ?61 111, 206; Bishop v, 
Htlll:^rd. 127 id. 38?.) Ho amblirulty Is sppa.rent in ite teraq 
and ujiless tnere is arabifuity in the Irtnguaga of a oontraot 
the raeanlnf; fftus;t ba deterrained fr05! the words used and 
froBi no other source, ('■.ngleateln v. lint?;, 345 111.48.)* 

From the record we f .nd th^t the contract wae baaed 
upon a sufficient conpideratlorj and understood by the parties 
at the time it wae signed , and there it no indication that th« 
defendant© wers: induced by me^ns of fr-md or alfreprepentstion 
to enter into the contract upon which plaintiffs' -iCtion is 
b?i ised« 

The problem oonfrofiti»g this court is whether the 
contract enterec^ into between the T>l*?intiffB and the defen- 
dante Is an enforceable one. I'roffl the r >cord It appesra 
the trisl court afttr hy ring the evidence renchod the eon- 
elusion that the contract between the ^jartie^s was not en- 
forceable, 

y»aily settlement IS by agreeaent, when fair snd ob- 
tained lEithout fraud hare b en repeatedly approvsd by the courta. 
Btipanowlch v. Iweth. 349 111, 98; fiolt v. Uhleatann. 325 
111, 165. 

'^MIc this ease is act what might be termed e faiiily 
settlement, etil the plaintiffs lave a certain interest In 
the policies of insurance because of the will m^^kin^- the 
pl?3lntiff i'leanor Bslcunrft t e eole legatee under its terms, 
and t e fact that the other plaintiff Anthony V;«lounr.R, her 
husb nd, aesiMBsd cert in obligatio .s In the payment of funeral 
expen«ea, ss v^^ell ss the payment of a ote for $500 irhich 1» 
held ^igsslnet the estate. By reason of theee fnots the pArtiea 
wers ju tlfled in enterint into the contr ict in cuertlon. 

The will executed by the deceased in hi« lifetime is 

-6- 



(.8#.Aii '^^-i ^ZiTL 



•>ii IbG'll 



4 r *ti.X « X i X 



.a^tifo 



vTItL 



,:»-rf--r»v.. r.-f.-t' 






■•>' '»,■■:* ««iti«^X«a ««ilfti»'i:^ lXiiaJt»lq 

... 'i#rf»«» »rf#' i.rwrft jh»«1: ••'#^ 6«jj 

:ti"f«'«iV r' «);;■; s . r r** I V ,■■' ^ -."*ln^mr■T■-1;■ 
• •' - * i ■ * - - - • -- 



on file with the Clerk ol the Prob'ite curt f-.nd. subject to 
suoh AirooeedlUj-S ^s sa^y be deemed neoeaaary by s.nyone h-^vinf.; an 
lnteres«t In the ©Rtate, bu- t'lie T>ould not rjrevent the oertlee 
hnvlng certain rights to -roperty, as isell «f3 clsljae, from 
entering Into a contract to ms.ke adjuBtaente^ and It hae always 
beea the aim of the court r to encoiirysge a fair settlement of 
a controversy between p^^rtleg?, 

athough we ar' of the opinion th?t the oourt erred 
in finding the iBRues for the defend^^nte, we regret th=^t they 
failed to ».i5pear and plve their vlewe upon the ▼arious questlona 
raised upon this appeal. However, se bellfve It only fair 
thtt 8 retrial be bad, and for the rsa= ons ejEpresee':! herein, 
the j|u%aent Is reversed and the eau^e is reaanded. 



HALL, P. J. AID 

UmiB I. SliLLlVAi, J, GO.S'OW, 



: *»»«*£'..■ .--.oi sflli©Ja« 



U>H 



38286 

STAHLET WEBDICLL* 



Appellee , 




\ 

MUNICIPAL COURT ^ 



WALTER RECZEK and KATAR2YHA j OF CHICAGO. 

REOZKK, his wife. 



Appellants . 



285 l.A. 588 



MR. JUSTICE DEHIS E, SULLIVAN dellrered the opinion of 
the coit>t« 

This is an appeal from a judgment entered in the 
Municipal Court in favor of the plaintiff Stanley Werdell and 
againet the defendants Walter Reosek and Katarsyna Recsek, his 
wife, in the sun of #308 as attorney's fees claimed to be due and 
owing to the plaintiff for services rendered for the defendants. 

The plaintiff set forth the services he rendered for 

the defendants in his statement of claim, alleging that he had 

heen retained hy them on August 22, 1934, to represent them in 

the matter-of a default by them in the payment of Interest on a 

note secured by a trust deed in the principal sum of $13,000; that 

he arranged a settlement of the entire indebtedness for |9,900 in 

in cash 
Home Omaers Loan Corporation bonds, and $3,l0^to be paid the owner 

of the note and trust deed; that he received $50 on accoxint of his 
retainer, and spent 15*00 in filing an appearance for the defend- 
ants in the foreclosure suit instituted by the owner of said trust 
deed and principal note. Accompanying the statement of claim and 
made a part thereof was a schedule of the time spent by the plain- 
tiff in doing this work, beginning with August 22, 1934 and ending 
on October 28^ 1934, The plaintiff contends that after he had 
made the arrangements for said settlement of the indebtedness, the 
defendants retained another lawyer to close the transaction with^ 



r^ 



88S8S 






? OA^HCXKOM ( ,T 



.ODAOIHO "^O 






.tlsoo Sift 

boa XXo^isft XalC'i^B l^l^nislq erijf to lotrs^ ai »*ttroO lBqtt>imjU. 

SjU tiesoaH en^«ii5^.93 ?>i!cb i»so«H ^»*I^W »*a^biifllo6 art* *8fllAa» 

bojs 9tjb 9d oi iidfiisXo aatj'i a^yf^arro**© eji 8©Cf to terti 9rf* ffl t«llw 

,ata^bael©& "/"' '- •^^"^bnsi BaoivioB toI ttlialsLq. »dt oi gitiwo 

n| a^iii ^ni^sanqot o;f ^^^Eex t?S titr^k na «a;tf# ^rf bftiiJjB^ei naacf 

« a« *aana.tnl ^o .t/iQtf\.prq ©d* gI fserf* ifcf i-X0slef) » 1o ttajT^iMB aif* 

Mli ;000,5X^ lo bb;b XsqioiilTq srfd^ nJt Jbeab *Bjyri* a t^ fcarreaaa aitMi 

fli 00e«€t lot B9&abot<ffjbal aTltns arf* to *natr»X#*a8 a ba:B|n«Tt3 ad 
rfaao nl 
rtaawo ariif bXijq acf o*\£0X,5^ baB »ai)no<^ noi^jnoqioO aaoJaiaxiwO a«oH 

aiif lo ^oxrooo^ no 03^- bsvlso* ri* Jbe»fc *ain:Jf boB a* on srf^ lo 

-»6fi«lab ad* lol ooafja^aqqa xib anlXll: nJt 00»8| ^aaqa bns (iaala#an 

j^avzi^ bi«a to rceawo oxlif x<f bQiuiiinai JtiuB siiraoXoeiol ad^ ai atAa 

bflA ari«Xo lo i^naaisd-jsta ^dt gJiixa^qaoooA .atea XAqlonlaq bos b99b 

-niaiq ad* ^d i^asqa aaii* adi lo eXj:/b9doe a saw lofiiad* *iJBq a aftMi 

^oitca buA ^E%1 «S8 ;|-ain|i/ik Aitw ^ataal^vd ^iton aid* snlol) nt tltt 

pbad ad ta*1s tsif* ebne^aoo mtnXaig adT .^Sex «SS «edo*90 ao 

•d* ^aaeabd^d'^bfll »d* lo *a;)ffi9X**9a bi£i3 lol atirdnssnjBTxa ad* atea 

•<(*i« 0oi#O3a(LST* ad* asoXo o* aaYvai* T^dio^s b^aisiBx a*n«bflaleft 



out first paying the rlalntiff for hie services; that the fair, 
usual and customary fee for skk^ semrices is |300. 

The plaintiff further claias there is a balance of 
♦8«00 due to him from the defendant Walter Recsek only for certain 
legal serrioes performed for the said defendant. 

At the same time plaintiff filed his suit, he also 
filed an affldarlt for an attachment in aid in pursuance of which 
an attachment writ Issued against the Chicago Title and Trust Company, 
as garnishee, and that said garnishes filed Its answwr 4f ''No Punds"« 

The defendants filed their appearance and made a demand 
for a trial by a jury of six men and filed an affidavit of merits 
which was later stricken on tuition of plaintiff and subsequently 
filed their amended affidavit of merits which was likewise Btricken, 
Defendants finally filed their second amended affidavit of merits 
on which, on motion of the plaintiff , was stricken and jxidgment 
against the defendants was entered in the sum of $308 and costs, 
and the attachment sustained. The second attended affidavit of 
merits answered the paragraphs of the statement of claim seriatim . 

Defendants deny, among other things, that plaintiff was 
retained for the purpose of aiding defendants in procuring a loan; 
deny that plaintiff rendered legal services set out In plaintiff's 
statement of claim; deny plaintiff spent the time set forth In the 
plaintiff ♦s schedxae of sdrvices; deny that a settlement of said 
claim was actxielly effected in the claim against the defendants 
on the mortgage and asserts that it was necessary to engage another 
attorney to close said transaction* 

Defendants further assert that pursuant to an Act of 
Congress creating the Homer Owners Loan Corporation, that no attor- 
ney should receive more than |10 for aiding an applicant to secure 



'i9ol%^'vs3 fMStHi' hole 99l X^c«fflo*8«fo bas Lmsfuj 

«ifi*i90 lol yXao i,««o«^ !C9*IjsW d'fla&ne^'^fc ofit molt mid o^ ©irfc 00.8^ 

OBis ^d ^ilLTS aid b^ll't tttialsiiq ami* em»9 Bdi iA 
dold^ 'to eoaawstvq ni bX& al ^s^ss^omHb tia lol ilTebma «?? b9lt\ 
laacimoZ tsrr-rT ba£ ei;MT or-isolrfO Bd^ tataims 6axf«8i di'iff dfl0fliri.Ofi;>-JjE an 
t^Bbmr^ oH" ^* i»waixs a^i iJdiilt aariaifiisg &J:«ii iTarf* bos ,e9riali«j33 bji 

^X*neifp»adJja ftjcts lllS-AJtBlq 'to aoUom so £tB:ii:>trtVi n»#jsl aj«j* doiifw 
8^ii«ffl lo ;riTjBi3Xllj3 timbfim* bJixa&ik$ xt^di boIJtl xXXaitit atiusJbaelsa 

^^t-fnifflq *5fi* »8'^nir{;f ^eif^fo :§nofi'J5 ^x^^^b n-ia^baaJ^Q 
;rir'A -■ sjKlrrifooiq r^i ei^ricRn-'tef) ,§nJt.bls to ©acaii/q erf* tot fts'fllfl;»-eic 
n'tlJt#fli«Xq ni ^w ;^^ IP itniRlq *Ari* yra^b 

9di nt Atioi ^«a ecit «ri:' : . ,,; _,._ ;. ; :.!.i iO ic *i»fli»*8*« 

bt»B to tadm8Xif*»a s ^r'.fT^ vit«»?'^ -a^olvTas ?o ei»£>©ifo« o'lli-J-nialq 

T9if;foai» *ajsrei/!(# oi y'xpa<2'?o' ;'irl* a*T»«t.?, .-. .iota 9di ao 

,;■-;:'■;■- ;tr!^.T# ?»/««! asrtXo ©i Y'^O'"^'^'^'"^ " 



-3- 

a loan in the Home Owners Loan Corporation, which was the purpose 
for which the plaintiff waa engaged and that the plaintiff had heen 
paid the sua of $50. Defendants further deny that the usual and 
customary fee for auoh serTioea ia |300« 

We think the affidavit of defense stated sufficient to 

create issues which entitled defendajate to a hearing before a jury, 

and the court erred in striking the second amended affidavit of 
merits* 

It is further claimed that the summons in the attachment 
in aid was not served upon the defendants, hut only upon the gar- 
nishee who answered "Vo Funds"* 

Inasmuch as no evidence was heard, we fail to see 
on what basis the attachment was sustained, 

for the reasons herein given, the judgment of the 
Municipal Court against Walter Heczek and Katarsyna Reczek, his 
wife, is hereby reversed and the writ of attachment against the 
Chicago Title and Trust Oos^any is hereby quashed and the cause 
18 remanded for a new trial. 

JUDGMENT REVERSSD, WRIT QUASHED AND CAUSE REMANDSD, 
HALL, P,J. AND HEBEL, J. OOHCUR. 






, -lift a S'xo'iscf g$i£'£t iifibaelsb b^Xtt^a^ dotAv aetfaei »*j»«to 

^c i^ivsl)llljB &sfoii©ffl£ fcxioofta ^di ^atMttn at J&oias *tj/oo edt hsia 

mii to d-aaai^fti;^ eil;t ^asvis ai9'£9ii aHoaAei e/ld" to*? 
aid ^■Aeso&H BSXi&tB^sl bnp :3Jssoa.H isd-i^W Jani^ajs #lifOp X«qi:oimf]i 
«4^^ Jacijaga txteairfo.fi.' Hivf 'sdi bsijs oea^avei ^dBtftd ai «etiv 

.X«ii;;f v«fi a tol bsbftsiBai ai 



'^SWL.At.n ^ 



38393 

JOHU W. KEOOH, 

▼. 

£• J. MI&LSPAUGH* 

Appellant. 



APPEAL FROr 

MUKICIPAL COURT 
OF CHIOAGO. 

285 I.A. 588^ 



MR. JUSTICE DENIS S. StJLLIVAU DELIVEHED THE OPINION OF THE COURT. 

Tht« iB an appeal from a judgment entered in the Uunioipe^ 
Oourl In favor of tHe plaintiff, John is, Keog^, in the sum of tl37.00 
and oosts and egainat the defendant, E, j, Millapaugh for dsmp.gee 
resulting to plaintiff's real estate because of defendant's negligence, 

Plaintiff alleges that the defendant negligently parked 
his automobile on Michigan avenue in the City of Chicago, and left 
It unattended irithout putting on the emergenoy brake, or that the 
emergenoy brake was not in good working order and as a result thereof 
plaintiff iras damaged by the automobile running through a plate 
glass vindoir in his building. 

Defendant in his affidavit of merits denied that the 
emergency brake on his oar was not in good condition and states that 
when he parked his automobile he securely fastened it by properly 
putting on the emergency brake and denies that plaintiff was daaaged 
by reason of any negligence on his part* 

The cause was tried upon a stipulation by the parties and 
it appears from the stipulation that the defendant's oar was parked 
along the vest curb of Michigan boulevard about 300 feet south of 
Ohio street and that the oar was on an incline; th^t the defendant 
after parking his car went into the building adjacent thereto to make 
a business call; thnt he returned in about 20 minutes and saw a 
crowd around a building loor^ted at the southeast corner of liiiohigan 
boulev=trd and Ohio street, which was the building of the plaintiff, 
and upon investigating discovered that his oar had run into one of 



'88S .A.I 5 8^ 






, 9» .; 









OS:' 



»ri 



9* Pic ^ ri^aoTrit 5iftlaaL'a dXleoeoa 






■'.:a(ti© 



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jdritfX' 



•■■:;r> Jafc» <*ii* ^aoie 






3 

th« windows and damaged the building to the amount specified In the 

stipulation, or |18T«00, 

It was further stipulated that defendant did not lock his 
oar when he left It hut that he did put on his brakes* 

It was further stipulated that Police Officer Lalohelt 
would testify on behalf of the defendant as follows; That he was 
a police officer and was on duty directing traffic at the corner of 
Michigan and Ohio street and that he saw an automobile rolling down 
Michigan boiilevard and that it crossed the street and ran upon the 
sidewalk and into the plate glass window of a building at 547 Horth 
Michigan avenue; that after the accident he examined the automobile 
and found that the emergency brake was not on and there was no 
driver in the car. 

It is quite apparent from the foregoing evidence that the 
oar was placed on Vkli incline without any one in charge and in that 
position such automobile was liable to cause damage. 

From the statements made by the police officer, that after 
the oar had run through the window, he examined it and found that the 
brake was aot on and there was no one In the oar, it is quite manifest 
that the damage was caused by the negligence of the defendant. 

We are, therefore, of the opinion th^it for the reasons 

herein set forth, the ^udgaient of the Municipal Court was correct and 

the judgment of that court is affirmed* 

JUDGMENT AFFiaiffiD, 

HALL, P.J. AND HEBEL, J. CONCUa, 



«rf* al bBttto^qB tnuoms ^M o* ■^alblliSQ »ffit b9rf^»mT.b httxt ^^bml ' suit 



ti9dot<^ 'S^f). 



uaoc 









■rf* 



. . ^ uIAH 



38455 

WORTH MIERRITT, 

Appellee, 




MOHTOR SAID & ORAVHL COMPANY, ) OF OHIOAOO. 

a. oorporation, et al, 



Appellants* 



APPEAL FsdUi 



MUWICIPAL OOURT 



28 5I.A. 5 88 



V 



UR. JUSTICE DENIS S. SULLIVAN DELIYEHS0 THE OPINION OF THE OOURT. 
This la an appeal from a judgment rendered in the 
Municipal Oourt against the defendant, the Morton Sand ^ Gravel 
Oompany, on the verdict of a jury, asacsaing plaintiff's damages 
at |695»44, There were two defendants to this suit in the oourt 
below, Morton Sand & Gravel Oompany and Sand & Gravel Liquidation 
Company, It appears from the stRtement in defendant's brief that 
the Morton Sand & Gravel Oompany purchased the Sand & Gravel 
Liquidation Oompany and assumed all its liabilities, so in law there 
was but one defendant, Morton Sand & Gravel Company, Plaintiff was 
a salesman for the defendant and was engaged In selling sand, gravel 
and cement on a commission basis* 

Considerable evidence was he^^rd on both sides and the 
■aln contention seems to be that the plaintiff w^s not employed to 
"service the job" or to be paid for selling cement and th-^t he had 
been paid in full for ail services for which defendant was liable. 
What is meant by "service the job" is that when materials are sold 
and delivered at a place where buildings are being erected and where 
the materials are to be used, it is customary for the seller to see 
that the materials are delivered and unloaded and th?»t they -^re of 
the kind which the purch^iser desired, - in general to see that the 
deliveries of materials are satisfactory. There appears to be no 
question but that the plaintiff did this work, but the defendant 



V 3;, 



'ilOIMUk 



Q^8t 

«TTI»Hi)< HTX9V 



V 



t taol^Mioqtoo js 



88 2.A.lS8g 



( ,&JiaAli&qqA 



ttmoo SHT ?o MO' . aiMSG xoiiaut, .m; 

ad* iti fce-i»i^aei oit^aigi; Leaqqs fl.B si aiilT 

lavRiv %*. ba&B. aetro ,-vni=-0fi9idl) Sif* taaiM^^ iruoO XsqioiKuM 

a98J5KPfi 3*l:T:i±aifiiQ: gaxafeSeeij ^x^ j-oifct«v 9xi* no jXaACfaioO 

3-j8cf^ Italia' 8 'ixi.<»i;j£taa:e>.b iU iii!^ia«J'..tfe ©il^ aoi^ ex««»qq.' > ;'aaqffloO 

ti^jfJXoX',1 .^pMioaoO i»v.9TD i ca£>'3i aoiroU ^tastaetsb 9ac iud eaw 

•aXiiJMf noXeaissio sa9m9t> ban 

0* Jb9x<-'X<Ttt9 tor iiai&lq »At ttid* sd ot aiaoaa aoitantao^ aUm 

brnd ©d *fitf* £)nR .•ffi9tt0o SJSXXI r Mot «^* soiv^tae" 

,»Xtf«i:X eew ^frufcao^eJtr tfalri-t* 'lol «»o1vt»r XXb icol lXi/!t ni fcXaq aescf 

•rtaifv &na bs;ra«79 -^aifuS 9ts agflibXixrcT orraiiw aosXq b #j9 fca^dvlXafe te« 

lo »i' xeri^ t cf.-t fcna t»9£)j=oXflu ^fl.« fieT»viX«l> 9t» 9iBlt9imiL •At tmii 

Bdt tftii «©e o* iJiteann ai - ^b^ilh^b fftnd&ruq edt rioirfw bali 9tii 

•n eo ci n«»gQfi eiacfT .xio^oalBlMa ata alAXna^aa \o aaX^aTlXaJb 



2 

Claims it was done without its knowledge ^nd that it did not hire 

hiffl to do that work* 

Oeorge Hartox^js: testified that he was the Vice President 
and General Manager of the Morton Sand & Gravel Oompany; that he 
hired the plaintiff for the fiurpose of serriolng the work; that 
plaintiff serriced the work of the General Motors Co* at the World's 
Fair, known as "A Century of Progress" and he was the only repre- 
sentative of the Gravel Company within the grounds; that he told 
Merritt that they would do what was right by him for handling this 
work; that no specific rate of oompensation was mentioned for 
servicing the jobs; that Merritt told him that he could procure 
cement business if they could handle it and that he told Uerritt to 
go ahead and that they would treat him fairly. The witness further 
stated that he agreed to pay plaintiff 10 cents a yard on the san^, 
3 cents on cement and 10 cents on line for any sales made at the 
Appraisers Stores job; that conditions at the Fair were so chaotic 
that they required more detailed servicing than any other locality. 

From the books of the defendant the plaintiff obtained 
detailed information stating the amount of material that was sold 
and delivered which was added to the testimony as to the number of 
hoiirs he worked and there was also testimony of people in the trade 
who were experienced and knew the usual, customary and reasonable 
charge for such services. 

The evidence in this case was submitted to a jury who, 
from the nature of things, are well qualified to determine the value 
and weight of the evidence and wherein the preponderance lies. It 
is not the function of a trial court or a reviewing court to sub- 
stitute its opinion for that of the jury in this regard, unless 
the judgment is manifestly against the weight of the evidence, in 
which event it would be not only justified but it would be its duty 
to correct such error* 



t 

STid ton bth i^ ^jtxtff 9^b9lmoa3i att Suodtivt 9aob bsm tl amisXtt 

b£o& eri tf^rfJ jBfeaxro'i vn^qaoO Xdv^iO iwi* ^o ariif-stnes 

•Wit ^niUba: ai^'^r of) f>Iuoy x^'i!'' ^'ri* ^JlTidM 

lol: &snoi:*R«Mi' -niaqiROO to atnii oniosoe on ^-^rf:^ ;:iizov 

uQ!!) t^ji^r ii esdciexid ^x:«ib«o 
iu©w Yed* ^Bri* iiiiB JSedriji 03 

jflomao «o t#n9o S 

♦X*iI«-oI T«fito tm> n.«if* :i»r!*oin;©8 fewXie^afe ©toss Jbtiiirpai y^J^^ *«^* 

' X c • ::d^ Iain©*- i^ 3«i*^t8 nollsaaolfli fealifi^aft 

altfiRfloa^sat Jba.3 if^jsaio^awo ,Xnaeu arfJ^ <f9njf bns Jbaoaaiiaqxa axaw 6rfw 

ax/Xjsv add- aalfflTS.. . j •;»l^fl^jjr> IXsw ftrr. ^^i^nt: . ^ t taotl 

tfl ,9'yii ^oaar^bnoq® ' > * lo ^ilsiaw l»cfi 

-dtta ccf J"raoc» r^fliwax" i^ . 'i.#»mii aric^ toa si 

. -^-A-rr: -1 ' " •' ■ - ^tiat&'^K xXitealinam ti 'Wj; arfi" 

«'r'\itr.i:r rXrro itoa *tf Ma^ow tt Jaava ifolrfw 

»rv>cri9 d9tsB *o»itxa» •# 



3 

Under the practice of the Municipal Court interrogatories 
were filed by the plaintiff to be answered by the defendant, which 
was part of the evidence here. 

we do not believe, however, from the evidence submitted 
to us that the verdict of the jury was manifestly against the 
weight of the evidence. 

It is further claimed by the defendant that the verdict was 
not in proper form* As already stated, there were two defendants, 
Morton Sand & Gravel Company and the Sand & Qravil Liquidation 
Company. The former company, having taken over the latter company, 
assumed its liabilities. 

One of the principal contentions made is that the jury 

failed to properly determine the guilt of either defendant and that 

they omitted to sign a verdict against the defendant, although the 

order of the oourt in rendering judgment on the verdict aesesaed 

the damages against the Morton Sand & Graviil Company. On the written 

motion for a new trial in the court below this point was not called 

to the attention of the court axid cannot be raised here for the 

first timer Defendants further contend that a distinction should 

be maintained between the Morton Sand & Gravel Company and the 

Sand & Gravel Liquidation Company, and yet in their argument, on 

page 9 of their brief, they make the following statement: 

*Ti»» Morton Sand & flfravel Company took over the business 
and assets and assumed the liabilities of the Sand & 
Gravel Liquidation Company in February, 1933." 

This contention asking that a distinction be made between the two 

companies and other contentions of like character, are without merit. 

This suit is merely one for services claimed to have 

been rendered, in which testimony was taken, evidence submitted 

and other investigrtions of the facts made and submitted to the 



siitdi-ej^mnechTX ^itsaO i^xoin^M erf* lo ^oivtoctrq •iljf TC»6irU 

no ^^nsmtJ^i* Tie. tX[fij?a)i?iov .. .. .• ■ ^v,, *..: Xa-^isti) A JbixAfi 



4 

Jury and they found for the plaintiff, upon which the judgment of 

the court was entered and we think rightfully so* 

For the foregoing reasons the judgment of the Municipal 
OouTt l8 affirmed^ 

JUDGMENT AFFIRMED* 

HALL, P.J. AlfD HEBEL, J. CONCUR, 



38541 

JOSEPH SVUMPFEL^ 

Appellant , 

▼• 

AHKA 3TUMPFEL, 




30^ERIOR COURT, 
COOK OOUNTY, 
App«ll«e* ) iTki^ifc'^M ^O Ci^ 



28 5I.A. 5 88^ 



MR. JUSTICE DEUIS E, SULLIVAN DELIVERED TilE OPINION OF THE COURT. 

Tlili cause oaoe before us on a petition for leave to appeal 
from an order of the Superior Court, which was granted. The order 
of the trial ocoxrt, from which this appeal is taken, was entered on 
NoTember 15^ 1934 on a motion to amend a decree of divorce panted 
to plaintiff Joseph Stvuapfel on June 5, ISSS^ Said order required 
that plaintiff provide all necessary transportation from Burgenland, 
Austria to Chicago, Illinois, for the two ainor children of the 
parties. 

Xa Juni, 1925, Joseph Stumpfel sued his wife for divorce 
on the grounds of desertion, in the Superior Court of Cook County, 
Service was had by publication. At that time it appeared frc« the 
proof offered by the plaintiff that he had sent transportation for 
his wife and. two minor children to convey them to Chicago, but she 
refused to leave her native Austria to come to America. Thereupon a 
decree of divorce was entered on June 5, 1935, in favor of plaintiff. 

Some three years later in M?irch, 1938, a petition was filed 
to vacate and modify the decree so entered. On a stipulation entered 
at that time and signed by counsel for the parties it was agreed 
that Joseph Stumpfel would pay the sum of >U0 per month as and for 
the support of the two minor children of the parties, and the petition 
to vacate and modify the decree was disiaissed. 

In March, 1930, the defendant, Anna Stumpfel entered this 
eouatry but took no active steps to vacate, modify or amend the 
decree of divorce granted in 1925. 

In November 1, 1934, Anna Stumpfel filed a verified petition 



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88G.A.I2 8S 



-,3To*ne sew eaejtet ftl If^dcra^ eiiy if»iifw ffiOTt 44h:«o6 JUix* 9^ to 

QOTOvib Tc^ .... ..*. . - -_ ^■...^„i-^;. ...j...... ^...^^i:^ ,c;...;l; *., 

,^#itifDO iooO to *tx/oO ioti9quB •ffd' at ^aoiil"i»»»Jb lo ebauczj} sri* no 
9rft lao-tl tetrre^rfB it (Wait #«i^^ ;^A ^iiei^-soiXdi/a t^ dbiI e.";w toiva©& 

' rroci/9T»ri? •flf>lT8j»A. otf 9eoo oi rtiiBuA tnltna imd sy'^^X o* fi*«0le'x 

tot fofl« •" ri-tBOlB "I9t> Ui, If- ri' 'I .»:: i.'v Xfi^qKWtS (IqABOli tjSifa 

loi.^it?*' ':-'/'>-' bfiilt X»!tcfiBt/.t8 ««flA tl^CC'X ,X 7»tf«aTa1iI al 



3 

to modify the decree of dlroroe entered June 5, 1935, to oonpel 

the plaintiff, Joseph Stumpfel, to provide transportation from 

Burgenland, Austria to Ohioago, Illinois. After a hearing an order 

was entered on November 15, 1934, requiring the plaintiff to provide 

all transportation for the children fraa Burgenland to Chicago, 

Illinois* The order reads as follows: 

"Ordered, Adjudged and Decreed that the plaintiff, 
Joseph Stumpfel, provide all transportation and necessary 
incidentals for the said minor children from Bergenland, 
Atistria, to Ohioago, Illinois, in 30, 60 and 90 days from 
this date hereof or in the altfmative th'^t lie shall pay to 
the defendant, Anna Stumpfel, the amount necessary for the 
above purpose in the same length of time." 

The plaintiff, Joseph Stumpfel, not complying with this 
ordex, the defendant, Anna Stttmpfel, filed a petition for a rule 
to show cause. After a hearing the petition vras denied and the plain* 
tiff was ordered to comply with the order. 

On June 10, 1935, as the plaintiff had act complied with 
the order, on motion of the defendant, Anna Stumpfel, an order of 
attachment was entered directing the Sheriff of Cook County, IllinoiSj 
to take the plaintiff into custody. 

Motions were made by the present attorneys for Joseph 
SttJmpfel to vacate the previous orders and for a stay of attachment. 
The motion to vacate was denied, but a stay of attachment was granted, 
at which time the appeal was prayed and on which it ooaes to this 
court* 

On% has but to read the order to see that it should not 
sta&d. First it is not made to appear from the order nor is any 
finding made in the record as to the age of the children, or their 
sex, whether they are qualified as to health or mentality to be 
admissible to this country; whether or not the quota of admissible 
iSBilgrants frc»i Austria is filled, so that they would be permitted to 
come into the ooimtry; and further the order does not provide the 
amount of money that is necessary and required for this purpose or 








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tJbr Z)eiIqf'Wf» .tort bs?4 ttitnif^io .9if* »,s tC^^X «0X «(mf^ flO 

"to TSb-'.. ^ .alrqaix;*!? jbci. ^ .. iioX#oaj no ^tnl>%@ »tfJ- 

ton tXjwxie Ji: *«"*£!* 'see o;t T©J"ro srf* b.n9v. 0* 4"ixtr »JBjd *xiO 
xan 91 roil tatTo «rf? mo'r ^obsf. ^on ai *X iBi£l t^ha&<j^» 

<»o 0* iti-iXA^ffSK to At:?-y. aitiXiUJp •t^v ^fi>ri;f •r^ii;^©rfl^' ^xei 



3 

to whom the transportation. If provided, shall be given and how 
muoh of the transportation is to be given in 30, 60 or 90 days* 
In other words, it enist be quite apparent froa a reading of the 
ao-oalled order that it is unenforceable. 

For the foregoing reasons the order of the Superior 
Court is reversed* 

ORDER REVERSED. 

HALL, P.J. AND HEBEL, J. OOSOOa, 



J.»..' 



3dt lo ait. ^Bbrnr- 



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,_ju..--;:<^ 


38572 


' APPEAt"filOM 

1 


LOUIS K0HT03, 

Appellee, 


▼• 


MUHIOIPAL COURT 


MIKE GAOIDIS and OUST 0AGIDI3, 
Appellants* 


■ 

OF CHICAGO, 



28 5I.A. 5 89' 



MR, JUSTICE DEHIS £• SULLIVAH DELIVERED THE OPINIOH OF THE COURT. 

Tliie l8 an appeal from a judgment of the Munioipal Court 
entered on the verdict of a ^ijupy in a forcible entry and detainer 
action brought by Loxiia Kontos against Mike Gagidis and Gust Gagidis 
for possession of the premises known ae 3547 Armitage avenue, 
Chicago, Illinois. The jury foiind the right of possession in the 
plaintiff. Defendants' motion for a new trial and in arrest of 
judgment were oveTruledt 

Plaintiff's theory of the case is that the delivery to 
him of the chattel mortgage and chattel mortgage notes was a part 
of the original agreement, and that by reason of the defendants* 
refusal to turn over the same, this refusal canceled the contract 
and that the plaintiff therefore had a right to the possession of the 
premises in question. 

Defendants* theory is that the plaintiff having received 

#75, the agreed price of the merchandise in the store, by delivery of 

the said |75 to plaintiff's lawyer, to be held in escrow until 

defendants could secure the consent of the landlord to a lease with 

them, and the plaintiff having surrendered the possession of the 

premises in question, then when the consent of the s'^id landlord had 

a 
been obtained^ the contract wa^/ consummated contract; that the demand 

for the return of the chattel mortgage and chattel mortgage notes 

was aji afterthought and came after the agreement was made; that the 

plaintiff had no right to make any such demand, because he was not 



S7585 



THUOO JA^IOIAUM ( ♦▼ 



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♦ TEUOO aHT %Q aOIHI^O EHT QSHSVUSG HAVljaUB ,3 glMG JOIXeUL .AM 

^arrn^vi? &gB&ttarA "f^SK 8i=; ftwon:jC assiaid'sq Btit to nolaaoeaoq «ol 

•ri? Ill aoisasaeog lo ifdiUi arid" bauot \ix/j; «dt .sloftilXI 403x50 JtilD 

\o is9t'T<^ ni bnP: Isirt wen .« tol noi*om •8ifl/sftii«t«a mtJ^lialBlq 

j-XRg s SFw a8;fon a§i?stiOE I&d-^Rffo bam &gjs^iT:om X9**Mo til* ^o tBiif 
•8*fl«Jbfr9l©b srf* lo itoess^ ycf *jpri;t £sfl«f ,*a««0WC3A XjanXgino arf* to 

♦itoXtefti/p Hi a»8iiT5ai:or 

\t6Vil9fc Y«^ ,810*8 »rf* rii 9alfort??rioi»« exf* ^o oeiiq Md^;^ eri* »fiV| 

litxiif iroTOBS fli JbXori acf ocT ,isv»!?I s '1:1:1 tciflXq o* Sfl bt&B ndt 

'•in d8'»oI p o* broLbap-1 fnitt to ta»uaoo eri# eti/osa X>Xwoo »*nAfcfl»l9i) 

»rft l:o floi88«e«oq ©ri* fcs'xslMiarfrws j^nlveri ttl^faielq e/l# lnflB ««•£(# 

fcjgif brolbnffl fclre Sff* "io tneaxtoo 9tii a^jfyf £t9{it ^nottBBsJp at •SBiaeaq 

flUUB«£> sd* *<«jf* ;tOin*noo Jbsd'Aflit(anuios\£ttw *0£t*xxoo eif* ^bda JiD^cfo n^soT 

ae^ofl •8J?!3ti:ofl! Xe#*fiifo £tff« ©^^rssrioiB Xe^^jsd© eri* lo niw^sii axl* %9t 

©if* tr:f{* ;*!)«« t^w iMWB99Tg.B ei{* t9*'3:i« 9bro fcaa *ri2nrOri*T9*l« iXB a«w 

on enw Mf ••jBWtMtf «lMajnMil> ifovv t^aus oafan o# tdi^ii oa bad m*aieXq 



2 

personally obligated, inasauoh as h« Ixad not signed the chattel 
mortgage or the chattel mortgage notes, and that said demand for the 
mortgage and chattel mortgage notes was simply an afterthought on 
the part of Clausen, who» at the time the agreement was made knew 
that the defendants intended to proceed against Thomas Tomlides to 
oolleot the balance due on said note, after applying the proceeds of 
the chattel mortgage sale to said indebtedness, and that said after- 
thought was based solely upon the faot that a friend of Clausen 
desired to lease the premises on behalf of a brewery. 

As was suggested on the oral argument, this has now become 
a moot case for the reason that the length of time on the claimed 
tenancy, which was the subject-matter of the suit, has expired by 
its terms. Many witnesses were heard regarding the facts involved 
and nothing would be gained at this time by an extensive recital 

of the controversial facts. Suffice it to say th-t we are of the 

of the Municipal Court 
opinion from a review of the reoord that the judgment/shoula be and 

the same hereby is reversed, and as the so-called claimed lease 

has expired by its terms there will be no necessity for remanding 

the oausei 

JUOaUENT REVHRStO. 

HALL, P,J, AHD HEBEL, J, OONOUR* 



s 

c:-- rot bnjmeb bl^B lisdJ bn.' ^--esoa a-^B-gtrem l»*tirrfo Sii* lo »^«3*Toa 

J aj29d©OTq add gfi.'. .- ^ ^^^ ^^Ij »oa*Xiscf aii* J-ftSlXoo 

istl^ hiss ii^dt bnr t?a'.}nj/e.ia».:"r.i. ^iy^s o.r »!«« S^-SS^tOfli X<»t:^£ll0 bdi 

fcoBjyeXC %© fens lit x « tsdt itOBl »rit ikkji? t-I^»Io« fcsa^cf 8flv jrljgiroxfi' 

IstioBi 6viefl8*x8 n.i5 ifcf ©ax* Bldt tn &malM^ »€ blm^ -^aiAtoa has 

lifoO iBqioim/M 3x13' to , 

8»r,el feaefiisXs bBilao-'iJii art 3- es .&/iis <l)»fiirE«v»ii: ttt fpldtBd naRB Sff* 

«08UBO 8if^ 



38639 

GEORGE F. KRSiaf, »■ Trustee^ 

Appellee, 

T. 

fZLLIAM H« aSRL, et al> 

Defendanta, 



On Appeal of 

WILIilAM H« (Smh, 



Appellant, 




APPEAL FROM 

OIRCnilT OOURT, 

COOK COUNTY. 



285I.A. 589 



V 



MR. JtlSTICS DfJfIS S, SULLIVAS delivered the opinion 
of the oouxt. 

This le an appeal from a decree entered In the Circuit 
Court on July 11, 1935, in s foreoloeure proceeding. The decree 
fotind that In and by a conveyance to hia of the property foreclosed, 
defendrnt Wllliaa H. Oehl had aesumed and became personally liable 
for the pfiyment of all of the bonds described in and secured by the 
trust deed foreclosed and costs in-rolved in the foreclosure proceed- 
ings ajBountlng to 158,8854 28, The decree further approved the 
aiaster*8 finding to the effect that the defendant was personally 
liable, and retained jurisdiction in the coxirt to enter a deficiency 
deorde in the event the property failed to sell for a sufficient 
amoxmt to satisfy the deed. 

By his answer defendant Gehl admitted an interest in 
the projperty and further admitted that he took the property by 
warranty deed from the Carlsons subject to the mortgage debt, but 
denied that he asstuaed and became personally liable for this debt, 
and prayed to be dismissed from the proceedings. 



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&tvr>ttG »di at beieiiss ^otoBb b mo%l XjBSqqje aa al slrfT 
90io?^b T'rf'p .r;n.tbft900i:q ^^a/aoXoo^ot 1^ «Jt t8€8X «iX ijXuX. no ^itroO 
^^rJj to <i';i<! o* eoxxs^svnoo a xd ta.& at t&sii btusoli 

an;. ■ ■ .. ..o'< i::.-' ■'■■.I -io :.i-^ to ia^esxffi ojW ttot 

-f)9900i«T »:t08oXo9iol srfv ii JbfitrlovKi itQoo bnB b®iJoXo®io1: Jba«ft *80i:* 

voaoiolieb a a©*fl9 o* ;fxuoo ^rft wl noJt*oibalTu{; BMilA^erc bn»3 (OXtffiiX 

at *8«TSiai 118 b»d^;>li«bR Xfffr-O i-anbuatftb Tftweaa airi ^8 
trf Y*i*«©-« *rf* aloojf »rt ^BAi be**i(jib« aeiif^iul bos i:tY»4ei;q wC* 
tiKf t*cf»b »^i?f*Tei»s eff* oi ^tsst^jre tuooXrrjsO o^U aoa* B»©b ij^xwiMw 
,td<)b ald^ 'rel 9X(f«lX tXX«ao»ioq 0ai6O«cf boe bamtniaji ed ^arfif b«i;a»A 



Ko replication wafi filed to the answer and on a hearing 
before the master the plaintiff failed to present any testimony 
In support of the allegation of the complaint relative to the 
asstimptlon of payment of the bonds secured hy the trust deed on 
the part of the defendant Oehl. The master's report, however, 
found In support of the allegation a personal liability of the 
defendant Gehl. Upon the hearing, this report of the master 
was approved by the trial court and a decree entered confirming 
the naster's report and finding the liability of the defendant 
Qehl as heretofore stated. 

The plaintiff has not entered his appearance nor 
filed any briefs in this court. 

We have searched in vain both In the abstract and 
in the record to find what evidence was introduced supporting 
the decree with reference to the liability of Gehl, We have 
fotmd nothing. Allegations without proof will not support a 
decree, ^ 

As fmr Supreme Oourt said in the case of Hogg v. 
Hohaann. 330 111, 589, at page 594: 

"It is not true that a decree may be had upon averments 
and charges. The rule is that the jurisdiction to ren- 
der a decree rests upon the facts proved at the hearing 
and which are sufficiently averred in the bill dlsiloslng 
the jurisdiction to proceed to decree. If not averred 
and established at the hearing the bill must be dismissed 
for want of equity, «• 

For the reason that no evidence was Introduced to 
support the charges contained in the bill, the decree of the 



iiitmmd » no baa nawguxa sdi oi bsXil asw aoitsoilqei cM 

^ xsyewofT tttotr^T a'^feJaiim aiif ♦ifi*i) d-fljsoaaleb sri* to trmi odt 
3drf lo xttitdiBtl imioBX&q s actf&-g9LJis sri* to jj-xojqiira oJt feflirol 

< >^jE3^S dX0ltO^91C»if Sis Xi(»0 

taa sofl32js»qq4> ai^ bexeta;* ton »jBd t"tUmtsSq 94T 

: 1^83 a «a d-R ^£8a ,1X1 OE" tfii3J3?aac::. 



* tXftirp* to Jiifiw lot 



Circuit Court, so far as the defendant Gehl 1b concerned^ is 
rerersed and the cause Is remanded with directions to that court 
to dismiss the said hill as to the defendant Oehl for want of 
•quity, 

BECRKS REV!!R3ED AND CAUSI! RSMANDXB 
WITH DIREOTIOHS, 



HALL, P.J. AND HEBEL, J, COSCUR. 






•iJU . . . iiStH CISA ,t.4 ,JJAK 



38667 

JOHN Oo TAYLOR, 



Complainant, 



OARL POOH, eX al.3 

Defendants* 



ROBERT J. WATT, 

(Petitioner) Appellant 

HOWARD K. HUawiTH, 

(Respondent) Appellee* 





APPEMS FROM 



SUPERIOR COURT 



COOK COUNTY. 



8 5I.A. 5 89 



MR, JUSTICE DENIS E, 3UUJVAN DELITERED THE OPINION OF THE COURT. 

Robert J* Watt made a motion in the Superior Court for 
leave to file a petition in the above entitled osuae, which leave 
was denied, and it is frCHi th t order of the oourt that the m? tter 
comes before us on appeal* 

It appears that on July 38, 1932, Howard K. Hurwith was 
appointed the receiver for the premises in the foreclosure of a 
first mortgage for $165,000, for the purpose we assume »f managing 
the building and collecting the rents and profits, although such 
order does not appear in the record* 

The record shows that on July 13, 1933, said receiver 
Hurwith presented his first current account and report in the court 
of Judge Robert £• Genteel, and the oourt being duly advised approved 
the same; th?t on January 27, 1934, an order was entered by Judge 
Robert B.. Gentzel that leave be given Robert J. Watt, Secretary of 
the Citizens State of Ohicago Bondholders Protective Committee, 
to file his objections to the receiver* s second current aocoxint; 
that on August 21, 1934, the court by Judge Sabath permitted object- 
ions to be filed to the receiver's third account; th'^t on September 
17, 1934, Judge Harry A, Lewis overruled objections to the receiver's 
third current account and report and approved said current account 



MOft" 



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,TRuoo SHT 10 MoiHi'io SET QaHsvijaa »Avijju£ .a eiK2G loiTSUt .an 

trot ttuoU roit^quB 9dt at aoltom. a ^bem **«?W .t. trrsdeJI 

«Iji^sqqi3 no BJj e»T0l9cr aMA* 
B lo STt/eoXoa^ol- 9l ?!imexq Bdit ^ot titrii^onr ©ri* bttaioqqe 

,fcioo9t ad* aJt %p.9qqs ton eaofi i©Mo 

^•▼JteoftT i>ii«B t5%X «SX TcXi/l. ao d-^ri* avoxia Snooaic ariT 

i/oo 9ri;f ni taoqei ibne tnuoo^r, iaB'xmiro ifertiT: airi batnaaaTq rfJiwTJt/H 

javoTqq/? t>oaivi)r. yXi/l) ^niacf ttuoti eri# fine »X»s5'aoO .S *i9cfo<? »af>i;l» lo 

egiJffL x^^ b9r9tne a^.w laftio nn ^^SSX ,VS: '%nflua&X, no *^!?rf# taaiaa arit 

"to T[e*9T09G t;J*^v ,t, *tt»oo*' ff^vjc^ ©cf aveeX tfirf* Xasl'iiaC »2 ^a^M 

tSa^^XitiflioO 9vi^oa:roi<^ ttrcnblodbno^ oi^.^ottfO to atr^C aaasicfiO 9di 

itaueoor. ta^'xiav bnoo^m a'aavlao©^ edt o* s£foi*o»(;«fo alrf aXlt ot 

-ioaftfo Aai-JioTsq K;^.erfRS s^JbirL ^cf ttuoo add" »-^5€X ,XS tBtrg^A ao i0di 

r9<im^tti9e Ro i-(»rf* \iauor>or^ btlAt a^xovlaoaT axf* o* J&aXll acf o;r aaoi 

s'rtavlaoart aif;r ot aaoilovtcrc i)aXiitC79T«t aXw9(X ,A y^xjiB agftcrl ,J^e6X (TX 

txufOooM iaB^ruo blBB be-ror^qe bar J"toqai brre rf^rn/ftoo-i taaaTx/o biidt 



2 

and repdrt; that on Hoveaber 15, 1934, the oourt by Judge Harry A, 

Lewis overruled the objections theretofore filed to the receiver* a 

second current report and account and ratified aaid ref>ort and 

account; that on Jaxmary 34, 1935, the court by Judge Lewis approved 

the receiver's fourth current account and report after a hearing 

thereon* 

Mo appeal was taken from any of these orders* 

It appears froa the petition that an order was entered 

allowing the receiver to eaploy a resident manager, Sarah (^uadow, 

at $16 per week* 

The ijetition ftirther recites that the accounts and 
reports of the receiver have been approved by the court; that 
objections were filsd thereto, but the saae were not heard in court* 
This statement is not correct* The orders in this record show 
the contrary* 

Thereupon the petition takes certain items from the 
accounts which had been approved several yesjra before and states 
that some of thea are purely improper charges and that the various 
items in the accounts are incorrect, improper and itntrue; that this 
information came to the petitioner subsequently, but it does not 
say from whoa or when he got the information* 

The petition further recites that on October 1, 1935, the 
receiver had an order entered evicting from the building the resi- 
dent manager, Sarah Quadow, whom the receiver had hired under the 
order of the court heretofore entered; that the tenants of the 
building signed a petition to the effebt that they wanted Sarah 
(;j!Madow to remain and that the receiver was attemptipg to discharge 
her and have her leave the building, which she is resisting* 

The petition asks that all parties be ordered to answer 
the petition within a short day; that a subpoena duces tecum issue 
against some 13 individuals or firms alleged to have furnished 



r 



. Y«^-*K ©S^ • ■'■J^® ^^* <*5ei ,c;I i9«f«&- ' 'c'i' ;tfir6q»"s has, 

,rx»l)io SBSfli- to xa.^ fmtt tteiLAt ajsw I««q^« OK 

i>n,c .....-,.. ...:.:.. ...^tli^c; C-. 

. .Ji... > • ■■■• "-y. ia»m&fB:tB elifT 

Lexsven ■-■--■'■•■•• i--^-.' ' --'j d€>ldn adtfiw^--...^*, 
r .. .*j-r.rio i»qou.v,tB.i X..- ^'■- ' '■■ ? 90108 tedt 

, , Tftcfo*oO ao - • -'—:--— r3rt#iu1: floi^it*? uxlT 

rjgrr^ilosi '' *'" •viw.---i . u.: ' • '' * ^aa fll«flS9t ©;>■ woJbJurP 

»i/eei ai£2fii 522iJli iSiiSMaqcfuo £• i:;'" ;■'//; ;m-r', ■• axfijiv.- i.ji*i#*q 9ri* 
fcorfeIcra/5: »▼«!( ot i)«aiiIXfi aatil -^ ^ ■ ^ £X mob #Bai«a« 



3 

material or services to the reoelTer; that the writ of asslstanoe 
against the resident manager, Sarah Quadow, be stayed pending the 
hearing on the petition and that pending the hearing Sarah (^uadow 
be permitted to oolleot the rents and deposit the same with the 
clerk of the court; that Hurwith be removed as receiver and such 
other and further orders as equity may require* 

At the time the petition was presented in court, objections 
thereto were made by the receiver and his counsel calling attention 
to the fact that the petitioner had theretofore filed objections to 
the reports of the receiver; that the same had been considered by 
the trial court and objections had been filed thereto by the petition- 
er and the same had been overr\iled and that no appeal had ever been 
taken therefrom* 

From the record as presented one cannot fail to observe 

that, apparently, petitioner is interested in keeping the manager of 

the building, Mrs. ^.^uadow in possession thereof* Just how the 

petition of tenants to retain the assistant of the receiver in her 

wishes 
position ag§,ln8t the receiveirs^/would be conducive to a successful 

manageraent of the building, it is difficult for us at this distance 

and with the meager information before us to fathom, lye hesitate 

to adopt defendants theory that this petition was merely filed for 

spite. We fully agree that a receiver' s report should be closely 

scrutinized in order that the property may be conserved for the 

benefit of the creditors and owners* 

While it is the duty of the court to pass upon the receiver's 

reports and auay objections thereto and also give to every interested 

person who properly appears before him an opportunity to be heard ea 

any objections to the actions of a receiver, either befofe the coxirt 

or before the Master, yet - once having passed upon the objections to 

the receiver's report - the court should be equally as careful not 



9onB*aia«B to *iT^ "^s^i- f-it ;'r«Ti!*©©t sxf* o* ••oi-nsa to Isi^wSUi 

vTOtr.uV de^jft.:? -gall ^nibacii baB iioi*lit«q ^d.& ao ^Ir^^d 

ftn Qta!i» Bdi iieoq9b bas s&n^r erfJ #09lloo o* b&i^iai9q acf 

^mtupsti yjsajj •^ii/p® Sis »i[a.brio x9ti&isft bas t»d*o 
fcfloi^os^cfo ^truoc al JbsiJfxee^iq saw noi^iteq 9&:i •ati* aM* *A 
iZoi#aa;r^B ^alll&o Xsaiix/oo eixl Jbuijs Tavxso&n: std^ X<^ »£>«& dT9w otftT44# 

Yd f)9i9bianoo used i).Rri aai^s »iS* tjarf* 5«»vi»05x fwJi- to sJioq®'! «£{^ 
roi^itaq arid- XQ ocTetceild- baXlt fl»«<f l>6if eaoi*o«j;cio Jb«B Jajwo X«ix* ad* 

0£[;t vroii itauL .toe tail ;t xiolessasoq isx websitf^ *e'iM «;gniJbXXiJCr 9iii 

asrialw 
^i3«©03oe -'! o^ ©vioxii>«oo scf t>Xj:ia«i\j^svi»p9i 9d& iBalB^ nottlmoq 

ooaAtatb eid* ;*•«! bu toI i'iiroitliJb ei *1 »;gniJbXl&d tif* to *a»ffl0aAOJWi 

tot 1)9X^1 yXeidsJ aRif rioi#i:;t«q sxriJ ^M* Yio»d* ii*jaBi>09l8i) tqoJt)jB ot 

tX«it«Xo ©ef JbXi/ode *toqo7 R'tavxftoott je5 rfcilt eexgi? ^XXwt aw «a^Xga 

•tft irot JberisBfloo ©d y«« x*^®'?©^^ '" ^ '^ ^'sd* tetto al fcssifliufxntoa 

itviaodT od^ itoqw efiiiq o# ^licioe ad^ to \tub ad^ ai ti aXXdf 
Jb«*«a«9*ifi ytcsva o* ovig oaX/^: fcixa o^atadt aaoi*o©{;do v*^ ^ojh 8*^oqau 
ao fit sod 90 ai x^-f^J^TCocrq© aa mii< axotad ei*t©qq« ^Xxaqoiq ada' aov^aq 
txiroo iu.-^ 'vv^-^r.^i ^e£i;^l9 ^Taviaoai: »^ lo aaoltfoa ad* o* aooitoatdo x*** 

Dt »flai*o»(,'.^, .. iioqti bae»«q gaXvad aono - *9t «'S«*»fi^ •d* aitotad to 



4 

to oreate additional ooats and fe«« against the estate by again 
going over the same subject-matter that has once been passed upon, 
without a showing as to why the evidence in relation to the object- 
ions was not presented at the time of the fomer hearings of the 
objections* The trial court must, necessaj^ily, have some discretion 
in the handling of these matters* 

Xa this case the petition does not state why proof covild 
not be obtained at the proper time, excepting the statement that 
information came to them since that time* 

During the pendency of a chancery suit, the court must 
of necessity retain jurisdiction to pass upon any and all actions 
and doings of its receivers, as well as their reports and accounts^ 
and the practice Is to permit parties in interest to appear and 
file their petitions on a subject matter which has a substantial 
relation thereto and in which petitioner has an interest* 'Aether 
the petition is sufficient or whether it requires an answer can 
then be disposed of by the court* 

For the foregoing reasons we are of the opinion that the 
court should have permitted the petition to be filed* Therefore the 
order of the Superior Court denying eaid petition is reversed and 
the cause is rewmded for a new trial* 

ORDER HSTEHSSD AND 0AUS5 REMAMQKO* 

HALL, F*J« AMD H£BEL, J* OONOUH. 



Koi JsToellJ »!ir08 sv.'jil «yIl*«iBas)©fl »j-atxiB ^wo© l»t%t ft^t •»ao2*o&tcro 
:io::o toonq t^w S'^r'tr' .tacr e^i) «0itl*6«[ «^# ®»a9 Bid* fli 

saol-o* lis fen..*!* xfl.e uoqw esjsq oi^ aol^oife^iax/t ai^'tni ^#ie«80*xt 1© 

, .-fl[tro«9« bar, Btieq^t %i9iit hs XX©« «« 48*r®TJ:»OH^; 8#i !:o sgnlob li&i 

isfXJS i:«eqqB o:f *89^o#ni ai BsitrBG ^Itaaaq o* ei •-oi^osiq eiii has 

iMitaBtBiSk'B € ajPfC rfolrfw ^©t#«B il-est^^ye a no «n«iri#«q Tiarii^ alil 



38407. 

In R«: Sstate of MARIA TURNl^^^ 
Deceased. 




MABT inLSTCHSR BRiOilUSH et al . » 
Appellants, 



f 




T8, 



VSSDlMASTi W. Pm&, Executor, 
eto« I Ov suL • I 

Appelleeg, 



Ai'PEAL illOM CIRCUIT COURT 
07 COOK GOUiiTY. 

28 5I.A. 5 89^ 



]jR« JOSflCE UA7CHETT BSJulVBBS}} XH£ OPIKIOK OF XHS COURI. 

Xhls appeal is by certain persons who claim to Ise the 
heire at law and next of kin of Maria Turner, who died at uhici 
Illinois, February 29, 1932. Another phase of the natter was be- 
fore thia court on a former appeal. In re Estate of Turner . 275 
111. App. 566. There, it appeared the Probate court of Cook 
eounty entered an order setting aside a former Judgment which 
found Joseph OlTet to be the only heir at law and next of kin of 
ICaria !Fumer. The Circuit court, upon appeal, held the order was 
not a final determination of the heirship ef Maria Turner and dis- 
missed the appeal for that reason, lliis court also held the order 
of the Probate court was not final and affirmed the decree ef the 
Circuit court* 

The evidenoe in support of the daia of Joseph Offet (if 
he now persists in sueli claim} is net in this record. The eri- 
dence is inconsistent with such claim. 

While the Circuit court made a uegatire finding that the 
olaimants are not the heirs at law and next of kin, there was no 
affirmative finding as to who are suoh. The decree leayes that 
question undetermined. The parties who object offered no OTidenoe, 
Zhey contend the competent OTidence submitted in be.ialf of claim- 
ants was insufficient to prove their claims prima faeie and say 
If it is conceded the evidenoe was sufficient, nevertheless it 



,VOJ^S. 



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.mmoa ioou ua 



88 



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«aiU<4Xx^qyj.i^l^ 






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.THOOU S^ET UO ilOIEI-lD SfHT aSaaVl^ISia ISOiOfAH Sai'iiSUTi wffll 



3C00 









i . : ■.■■.'.>x -Jraili 'lo'i £jr,9qqa Bdt b9BBtm 

snnl'Vti I afiw cTauoo s^tc^Qfoi^ arf* 'to 

♦ Kuoo IxuotiO 

li (oii^lo liosiB al sd'alvxftq won 9d. 
,:i\i£Lo c£9»9 il^lw ia&iaiBaooai at eoa9b 

oa 8«v 919x1;^ ,aia{ 'to ;^X9a Jboo w«I i« snldiat •jrU ion eo^ «^asfidi:«Xo 

t«rfi 89v«9i soios^ o/fT .xious d-xs odw oit a« saJttall •rltAorxi'tla 

.•onobirs ofl l>9'xeVto i09l<io odvr B9iirf.q 9iiT .b»ati3xs>i9btw aoiim^up 

-aiMSA 'to 'tXjBXiOcT al baidiai'iiut •oa»BxT9 ^oetvq^uoo oil^ ba«;^iiea xoifX 

^«e Z^OB oio4dl »mir<i eraiclo lieiii ovo'xq «^ ia»l9lYtu»al umsw atas 



-aifc Isrie 

1t9i)1C 



11) *»'tlU rtqs" 

-iV9 ' 



appear* under the undisputed evidence, as a Batter ol' law, tliat 
elaimants, by reason of lupedlments (which we will later consider) 
are not and cannot te held to l>e eucia heirs at law and next of kin. 

The eridenoe does not disclose the precise date of the 
"birth of Maria Turner, It appears, however, tlaat she was bom in 
Windsor, Canada, and, the census of 1861 would indicate, in the 
year 1860. The maiden name of her mother was Maxy Elisabeth Wood- 
fork, who was born a slave and prior to migrating to Canada lived 
at Lynchburg, Virginia, She was a person of color and lived with 
her family, as the evidenoe indicates, in a frame house on koDougal 
street in Windsor, The evidenoe also tends to shew that she was 
■arried to Lucian Jletoher, who was also known as "Evolution" 
Fletcher. The names Luoian fletcher and Mary Elisabeth Fletcher 
appear upon meaiorials of indentures conveying the real estate upen 
which the family afterward lived. These memorials were made in the 
year 1859, the one showine; the conveyance of property to hary S. 
Fletcher, therein described as a "spinster," and another showing 
the conveyance of the same property by Mary £. Fletcher to Luoian 
Fletcher, ^he assessment roll for the second ward of the town of 
Windsor, Canada, for the year 1859 shews the occupants of this 
property to ba •Fletcher, L, C. ••; that he was by occupation a 
laborer, was a householder and that his age was 35 years (indicat- 
ing that he was bom in 1324.) The same assessment roll for the 
year 1860 shows the oooupant of this property to be "Luoian 
Fletcher"; that his occupation is "ccm.—Lab,"; that he is a "free- 
holder" and 36 years of aga. The census already referred to, ap- 
parently taken in 1861, shows this property to be occupied by a 
family eons 1 sting of one mazried person, a washerwoman, kary 
Fletcher, wno was bom in the United Stc>tes and 33 years of age 
at her next birthday; that the other occupants were two feoaales - 
Sally, born in the United States, six years of age at her next 



r 



.aiat 1o ;^X9a has vr^X ^>s vrti&d ueua 9di et hi^ii 9€ tomum bat^ ^on «xs 

-i>ooft ii;^9ci;6^i;It'^ vt '^jaen F»htMm •xtT .0681 tA«x 

,i.^Ai.f«ri. n«l :>{.•. I of ha tiiem 

t^M-.i- .,,-:-.,, asinuftix •^^ . ■ 7dot*Itt 

..,,. ^ : -^•, ;M.-;r5h,-: '\q alaiioaK..i_ ..,;_,^ i^aqqa 

»ii f , ,wio#l* Tc^-i'i*^ »^i* iioJkxiw 

... ,^^ .^i'f9iia »flo 9ii* ,»e8X T««x 

to n'^<j* •■ - ■ . :'.>ic;-„- -jtiajB f»'^'-' - •."si'? 

©if J .•..-„•, ^ „■. ^ ToaJiiiii;'*' 

41 noi •' « '-i i.' .^ !j o \;.u c:a>-- -"v; u frii'v.- ; l . -i s' i ■' " 'TS^OTfl' 

"^AOibni) or "■ - ^ ".yj .i gis«a«oil « e^jv ,t9<xo<f«X 

-••n't* A aJt 9d ii^ri:] ;".-.. J'j^qraoo pxr jari.t ;"^»riot»X*l 

9^ to a-i.-ci . ■ iD^>vtxn , : rfottXI 



9 

birthday, and Maria, born in Canada, two years of atf« at h«r n«xt 
birthday, and two males - MoseB, bozr. in th« United States, four 
years of age at hie next birthday, and aampson, born in Canada^, 
who would be one year of age at his next birthday. The aesessaent 
roll for the same property in the town of Windsor for the year 1861 
shows the occupant to be "Mrs, Weteher, widow, and freeholder," 

The evidence further shows that Sally was also known as 
Sarah; that she aoTed to (Jhicago, Illinois, and was twioe married, 
first to Nathaniel Brown and afterward to Robert Thornton; that 
both her husbands predeeeased her, and that she left no ohild or 
children her surriYing. Proof of heirship in the estate of Sarah 
Thornton was made by the testimony of Maria Turner, whe stated 
that she was her sister; that the name of Sarah's father was EtoIu- 
tion yietoher; that the name of her mother was Mary B, • that both 
father and mother were dead and that both died prior to the death 
of Sarah Thornton, whAeh was July 18, 1919. She further stated 
that her father and mother were carried only once and then to eadi 
other; that three children were bojm of that marriage - Sarah, the 
deceeuied, Moses, i^o died before Sarah at the age of 24 years; that 
Moses was never married and had never adopted any child or children; 
that she, herself, was married to S, B, Tuimer, who was living; 
that these ehildren, Sarah, Moses and herself, were all the childrw 
bom to her father and mother, and that they had never adopted any 
child or children, so that she (Maria Turner) was the sisteA of 
Sarah Thornton and her only heir at law and next of kin. 

The precise date of the death of Mary Slisabeth Fletcher 
dees not appear, but Albert Venerable, who lived in Windsor and 
went to school with Sarah Jletcher, testified that he did not know 
anyttiing about the mother of Sarah, but that when he was five or 
six years old he attended her funeral and r^nembered seeing Sarah 
at the funeral. He was 69 years of age when he testified, so that 



r 



auot t&dj^fj'u bBSta*J fx& xsi fi3|o«f ,«»ao^ - a»Xeai oirJ brut t^ltjlctiitf 

i-twrnaavs^ii nxiT .-^cft^-iWiicf i-xen aiil is 93^« 'tc ■i4So>c ©no fttf Jbiwow edw 

•.«»l>Ioj<9»it'i ibae ,wofciw ,t©jSoi«XU .bt^kI* »rf o;? toeQuooo »ri;t Byrodtt 
«^ .7 ■\rXX«^^ Ois t»iit%u'i toa«|)iv^ ©riT 

,^i?ii«ffi ftolw;^ aaw has ^eioaJLXII ,osAdXj]iD ot bevau 9dM t^tit {ifeadS 

10 bll-do on yi^Ki. arie **i; , '.axi i>#ai;«o»fe»:tq «.b«jBtf««£L I9il cito^T 

liexjBd 'to '^^f^iri*i 9di cil qifjeildJi 'io 'looiU .gaivirxwa nt»jcf a»ifcXJtxl(? 

-iiSov-y: n.'z^i 'i-^^ij-'i s'ii't.- .jia 9di j«aJ- jiaJaia ^9X1 ajsw ©££5 iniit 

tUm9h 3i±i 0) loiiq i^tilb kU9^ i^tii l»ae hAQh 9t»w asn^ea fcxiB i;8xi^«1 
beisiB i^iii-iw't axiii .QXex ,6X x^^^ •"^ ito|*r ,ao*n2d£lI itex^C tko 

9tii ^dRUMt, - ©s«iitaisi iwd^ w. mod ^yx^^f OBtbliiio ms>xiii imiii ir^dto 

iMsa ;«'X£©^ ^S 'to fi-^ 9i\it iA Atvta^L vtQti^i h^lb oxdr ,»»aoM ,l)0a«iiofi^ 

;iai:xJ-iin 10 i.iifCy -^flft ijoJ'q;ofcj i.ov a L£xi han Jbsiti^ai itv©a ««w 9»soM 

\,,-^.. - 0.-W ('c.-'mu'i 4 . . -. .;9i"cit«a ajiw ^tXsatsxl ^aiia t«ii^ 

-« Jbe^qoJtu r-iv-,., Mrri ^axt^ ^jb^^ biu ^i^tkisM btm %«A&xt tasL oi trxodi 

to fta^ei:6 v.. ^. .v (larnxiT AltJi^iii) ejia ^AxiJ' oa ^tssrblliio to I^Xlxlo 

,niji "to &x»n ban. w»£ tA xfceri xX-c^ ^^^-^^ ^«* noJ^raoril x^r-t-<«i 

3»ild^0Xl. rUddasXX'i X"^^ '^® il:t£«>.b »xi^ 'to 9t&b »«!iO»T^ *£CT 

bfM YoaXtniW ai b^rll oeIw .aluaiea^V #i«crx& $u<i ,x»«qqa ^on 8ao^ 

wooji ion bib ail tifXJuT 6«i'tJt;»s9^ ,i*£U)i»Xl> ito'x«£ xUlv X9p/i09. fi ^{i»v 

no frn BAw ei( cwiiir isidi iua .ditaa^ 'te 'X^ii^ota ttii iuods ^^aixiixfl* 

dmxsQ ;gAi«a« b(ff^it»iim% bOB lA*i»au'i t^ti k^bstbii^ oil bio bimbx xta 

^*iii oa ^h»i'iti'-' ^ ■' ^ - ^~ '■■' rxjiot M ««» a^ .Limeas't «•--+ ^« 



h«r death evidently occurred about 1872, 

The eoEifflunity in which ttie Fletchers lived at Windsor 
•^HB a colored coEjaunity» There is no direct evidence as to hew 9 
exactly when Mary Elizabeth Woodfork migrated from Virginia to 
Canada. We can take official notice of the historical fact that 
in many of the states of the United otates at that time the normal 
status of colored persons was that of slavery, and that the law ef 
the nation required that fugitive slaves escaping from service 
should be returned to their owners ii> the states in which they 
were boiuid to such service; that el&very was not recognised in the 
Dominion of Canada, and that many such slaves sought to obtain 
their freedom by crossing over to the jurisdiction where slavery 
was illegal. 7he only otiier material evidence so far as the 
Fletcher family of Windsor, Canada, ie concerned is hearsay, ad- 
missible only for the purpose of proving pedigree. 

There is teetiiuony of this kind to the effect that Lucian 
Fletcher, who was married to tnle slave woman, was a white man; 
that he came from a prominent Virginia faiaily of the same name; that 
he had beeit. involved in some troubles there which caused the fataily 
to desire him to leave; that he was given two slaves, a man and a 
woman, and left Virginia for West Virginia with th«H; that the mao 
slave died; t/iat Lucian became involved in serious trouble there 
and left with the woiaan slave. Journeying toward Canada; that at 
the Canadian border the colored folk* refused to let these two pass 
over unless they were married; tliat accordingly a cerejuony was per- 
formed and they assumed the Marriage relationship; that thereal'ter 
Lucian Fletcher went to California where he died of a fever. This, 
the record discloses, is substaiatially the tradition of the i'leteher 
family of Windsor, Canada, concerning the origin of that family. 

The evidence already recited indicates tnat, like most 
traditions, it in some respects inaccurate. Ihe memorial of the 



r 



Oi- eiisia'xi'^ arotT: Jv»i'Aff,L«J TfTotfeO'dVf ff*a^cf«aJtIH xijSsM flftilw YjC^o«t» 
*Bd* #o*»l XAOi-r<^tcirrf o/f icJ-OH ijsioiTl© 9SS& l«so ♦W .«A«ja«0 

J TTi-i » , -rsTjsXa 'to ,tj«ri^ a»ir 8ac;8T&<? 1>»i<jXoo 1o aui&tn 

ax£;r<^o oJ' iiieiU09 B^vjalst ilaus xR;9j« #iti.l;r ^im ,«&^sxx£>a '£0 nolctlAOfl 

"•■♦'•'? *"v^- '-oau«o iiclriw 8iiid;J^ oaXduo^^ aiSGO ai tnvlornl ew^rf Iwsxf fill 

« r:ii/ ;u,si.i J9 ,s@V£X8 off^ ttevis fiaw ail iBii* ;3ra»X o;^ n Iii o'xisej^ o* 

tfma ail* taili ;«o^ xi^Jbw aiaig^l? ^8©W ifti fiiftts^iV *l9X bn* ,fl««DW 

9Trii5 dXcffiu^l atJoiT»« ui *»vlovnl 0flft«©9<f ewiXetril J'feit^ jiioil! •vjbXs 

t ::.^ ;«fc«5rttjQ ftitewct ^fli\;«i''*«®t ,*v*jX« rta/aow »flJ liJiw St9£ btsa 

latljB^wefifJ J-«xl* ;^liianoi:*AX«^ ©a*-^'****^ *^ I>»«6i«a« -^taxl* Jena fiamial 

^tirf.: ' -^tsjdv jaiino'iilsO o* */if»w a:ox<4i*eX'i tmlnthl 

•ntinfr'L-i ' ijiJiiA; ■; adi xlLtttinBtrttfif at ,B«»oioaXf> JbtoOft* ©xW" 

.^ri-y;! J..-.ij 'TO »u* sBliifioao* ^ahatatQ ,ioaJ!>al« 'U x^lam't 

*«oai aaiil ,*Ji-^^* aolaolbnl b«rid9T X»««isi:# •©it^&iv - """ 
Arft i .atfl^Hl' - aawa nl ^i ,^ 



rcfcl estate trar.eactionB, ee we have already recited. Indicates 

that Mary Slleabeth Fletcher at the time oi' the purchase of ths 

real estate on which the fcoidly lired in Windsor was *a spinster." 

ilar&a Turner testified positively in the estate of her sister, 

Sarah Thornton, that the father and mother were jiarried, and only 

once. The relationship the^ ass med to each other shows that ths 

public officials with whom they dealt recognized the exiBtenee of 

this marriage between then, but the faots that the oensus report 

shoY's that two of the children wwr« bom in the United States and 

that Mary Elisabeth was described as a spinster while dealing in 

real estate indicates that the marrisige took place in Canada and 

not in the United States, 

without dispute 
The evider/ce further shows/that a certain L«cian Fletcher, 

the son of Elijah Fletcher imd Maria A, Flstcher, was bom at 
Lynchburg, Virginia, in 1824, His naaie and ag« are therefore 
identieal with that of Lucian Fletcher, the father of karia Turn«r 
and husband of Mary Elizabeth Woodfork Fletcher, The ftvidence shows 
that this Lucian Fletcher of Lynchburg, Virginia, did not go ts 
Calif ornia^in search of gold in 1860, nor did he die of fever In 
California thereafter. On the contrary, the records of the United 
States Var Department at Washington shew that "Lucien", naiae also 
known as "Lucian Fletcher," served as a private and sergeant in 
Captain Hardwicke's Company, Lee's Bettery, Virginia Light Ar- 
tillery, which company was also in service l^ith Braxton's Battallco 
of Light Artillery, Confederate Stetes Army; that he enlisted May 
23, 1861, at Lynchburg, Virginia, to servf during the period of the 
war; that he was assigr^d as a private to Ceptain Pieros B, Ander- 
son ^8 Company ef Artillery, irtiich subsequently became Captain 
Hardwicke's Company; was promoted to the grade of sergeant Juns 7, 
1861; reduced to private December 81, 1861, and was reported en 
the roll of the oo^N^any as present to October 31, 1363; that the 



f 

99iG9i!^at «Bf>;fio9i \bsi»'iSj» WT00. -if* *a ^anei J^Oj^drtA^t »^i»;f89 X«ei 

BdJ to BSiriioiuqi 9xii 'to »«/ j ?«ri»*«Xi. JEJ.#«GrjBsiIS tji^jM ^jsiW 

io 90x^:^8 Ixe Ad^T |>6slm^o&«'x ^X«$& x^^ ei^^ ct^iw sietoilto oiXd&9 

l>as Q»^-:^t@ b9tta\i.9^ nl fixocf oisrw arUbXJtipto «ii(;t 'to o'vi Stidi aroite 

baa ASynnaU ^li: soislvj iooj a^i'xaisflt »jLi.f ;fsjDi.^ sdj'jaaifrul 9iBie.9 la&t 

•XKaiuX mliMd "io -tj^dv^^al »rf.t s-x^riuiftXl tmiassJ. 'to SMiiit dSi'W X«fll*«96i 
«wo''2 tvoaof Iv ,'s;':*ci[oi»X*i :i:xotft9QW d^9cfa»iX5i ■^'r«ll t^ bn^fiuifA fenta 

nX 1 / io/', ,0d81 ttJt feX»l "io rfftiusoa aX «Jtfn^1iXsO 

tf i!Ui?4 .T-^ja hem atuvliQ b a«» ij^vitde *»t»ifo4h»Xi smiouJ,^ «• awejcxsC 
miluiJifiil 9'*!Kif7c«%^ iltkir ftoXruA* at aaX« i»«w ^osqwoo xfoXifw ^^ptaXXJr^' 

-Tfthn/v .a •tnelH flij»*<|aO o* o^avXa^ ^ «« iJ^saf^Xaaa saw ori iBilJ- ;'X»w 
adaitiB'O •xieo'^cf ■•cX**i9|ip»0£/w« HoXiiw .tts J^i^i^'xA to ^c^mqmoO u* aoa 

'■—)■-- :.:.. . ,ieex ,Xfi -sanfiBWosC •^iiYiier o;J i^©o«i>«n :Xd8X 

-, - -^^- - •* to XXO"! •Sii 



next roll call on which uls naiae appeare ia that covering the 

period from September 1, 1864, to December 31, 1864, which snowe 

hlA "abeent at Richmond undergoing sentence of g.c.B, ; that by an 

order dated Mareh X3, 1365, designated a« Special Order ^o. 65, 

Department and Army, Borthern Virginia, the eentence of the general 

eoart martial was remitted. The Union Prisoner of War iiecorda 

Bhov he was captured i^ril 2, 1865; that he wat iiuprisoned at 

Vert Delaware April 4, 1865, and was released from that pest June 

20, 1365, on taking the oath of allegiance to the United States, 

His personal description is thus recorded: 

"i«s 37 years; place of residence Amherst County, Virginia; 
complexion sallow; hair dark; eyes gray; height 5 feet, eeyen 
inches.* 

A photostatic copy of the oath of allegiance which he signed ia in 
•Tidenoe, 

The faiaily Bible of the Virginia faiaily of the Sletcners, 
to which Lucian, the huebamd of Frances Sverett Jj'letoher, belonged, 
was produced an the hearing by a member ol that family, in wiiose 
possession it now i9» There is written in ^ongliand on tiie fly 
leaf of this libit, the phrase, •Lucian Fletcher, Tusculum, July 
X840," and this phrase was identified as being in the handwriting 
of this Lucian ?! etcher. An entry in this Bible also shows the 
1>irth of Lucian Slotoher in the year 1824. As already stated, the 
signaturo, •Lucian Jletcher," appears on a memorial in Canada for 
the eoUTeyanco of real estate in 1889, Howard A. Rounds, a hand- 
writing expert, testified that the signature on the memoriaa for 
the conTOyanee of real estate made in Canada in 1859 and the 
signature on tho oath of allogianco taken by Lucian irietcher June 
20, 1865, were mads by the same person. It w%s stipulated by the 
parties that another handwriting expert, jutr. Walter, w^o was engaged 
In the Hauptmann trial in the Lindbergh case and could not be 



\--: ; ,31. . -)fjjfl'' aid. 

*in;i, ,. i Laaja'.;- < '38X ,* IttqA •xaw.r . ■ioU 

,sas/'i>.t&r4 9r:j to ^Lt-t^'i Blnir^tiy »{^i to aloicf ^Xiais't •JtlT 

311^, , '/tf gall ft© b»pubO'iq taw 

^XuV. ,Mi/Xtto«i;T ,«efto*eXU ««l©»a'* ,?»8«nilq arii , r 

Sm HXcfife 8i , t«r!od'«X'^ ;-u3lo«dL ejtxf^ It 

»rj .(-iS^o^i ^i5««»iX« aA .*e8i isxto^reX^- 

-i)ii.-i - ,. ■■!;.; , ft^ja^ao Xa^i 'to »0ixeA!;«Tnoo erit 

itxda** ,;Mt«<pt» 8^*l«w 

v«#pxij^.. . '•«« •'if* "^cf •fcs« ©itow .fidex ,os 

9d itta bill. y«<jo ii8i«Jfealu. rutouuTerwiH 9di al 



present "by reaBon of that engagemeiit, would, if present, testify 
substantially to the saai« opinion. Ho evid«no« to the contrary 
was 8ul3uitted« 

The evidsnoe also shows that a marriage lioense was issued 
by the clerk ol' the County court oi Amhierst county, Virginia, 
October 23, 1880, to Lucian Jrittcher and JPrances iSrsrett, and a 
return upon it indicates that they were married about that tine, 
vhioh was, as we have seen, after the death of kary Fletcher of 
Windsor, Canada. The license states that both parties were whit*; 
that hs was 56 years of age, she 35; thnt the parents fof the hus- 
band were Slljah ajid Mary A, Pletcher, and that the hueband was by 
occupation a farmer. A death certificate sho vs that Fraiiees J. 
Pletoher died January 1, 1932; that she was the widow of Lucian 
flsteher and was bora fieyember 32, 1344. 

The evidence also shows that this Lucian Letcher, husband 
of Frances Fletcher, lied in Virginia in 1895, after the death of 
Mary Fletcher of Windsor, Canada, and before ths death of Frances 
•▼erett Fletohsr, The elairaants, Mary Fletcher Braamer, Flavonia 
Fletcher Coffey and Cornelia Flora Fletdier Grow, are, as the evi- 
dence shows, daugt'iters of Lucian Fletcher by Frances £. Fletcher, 
Another daughter of said Lucian and Frances was Lucy Fletcher Hill, 
1^0 died leaving an only ciiild, Leslie Hill, w]%o is also dead; both 
died before iiaria Turner, Leslie Hill left aim. surviving Jenette 
Frances Hill , Yirginia Peace Hill and Wanda kae Hill , hie only 
heirs at law and next of kin. These three dau^aters of Leslie 
Hill and the three daughters of Lucian and Frances Fletclier, 
namely, Mary Fletcher. Bracuner,. Flavonia Fletcher Coffey and 
Cornelia Flora Fletcher Grow, are the clali/iants. They all base 
their claiais upon the theory dhat Lucian Fletch^^r, father of 
Maria Turner and husband of Mary Elizabeth Woodfork, was the saSM 



% 



»l>9^^1iucfua SAW 
,»ml5- *Aii;^ ctijocfii b^ii'X&n 6i«v ^«nid- *£j.lilt e^JAaii);.-).- .-luSsi 

n&ivul to wofcJtw Bf{;t eisw eris Jcil^t 4^5§I ,1 ximJOBl Jb^iJb i«!>fie*«^ 

io /:;r«ei> »d$ t&il^ ,eGeX «! «iais^iV at b^il ^'i&ds>i»l'^ »»oai«t *le 
aiaovj^r^t .Xfiflnasoa ttsiiolaiu x^^^ .ai-immAAla arfl' .terfc»;J»X'«- ;^J©teT8 

jWoo ;fei3->fe 'rfw ,XXiB »ii«OiI ,bXi.'io ^jXao ao aoiy^ftX b»i.b oiir 

Xlno filti «Xxitl 9B:i «*tt«t JbfMs XXIH •3*»«1. jstini^iiV .XXii. s^oiuii^ 

ii4Xb»J 'Io tn»i iii* 6«»xfl .nii to ix»n ftn-? w^X *« atl^ti 

VXftAo/ftXH •«»nj»i'4 Ijiu* fM*io»«i 'to vtftir'.-gK&t. 99tA} tuit 5ne XXiH 

box "^©'I't^O •xoitaieX'a ainaT®!** <,iSflff?wTfi.t»rio*#JPi x'l**^ ,YX.e£Wfl 

o8.i-. -^ IXe ^«m' ,»#a«iRl>;Xo 9Xi* oxs ,W««i5 ifjH»*«X^ ja^oXl «iX9enM0 

ft£iiiB ftrfi :ii>w ,atTo'*»©oW d*«fi>»lXg ^tXB^i ^* hasiatsd bam -i^tnifi: iiltwM 



Luclan Fletcher who, after the death of his first wife in Canada 
married francee Everett in Virginia, In addition to the documen- 
tary eridence already described, they produced eridence at to the 
traditions of their own family tending to corroborate the traditlea 
•f the Hetoher family in Canada, liary Fletcher Brammer testified 
that the signature on the laeGriorlal of the indenture of transfer of 
real estate ia the signature of her father, Luoian Fletcher. 

Frank Briscoe, husband of Alsa Geffey, whose mother FiaTo«» 
nia Coffey, was a daughter of Luclan Fletcher of Virginia by 
Franees ISverett, testified that he Icnew Frances Everett Fletcher 
for many years, and that when he became a member of the faciily 
their friendship became quite intimate. He says that he discusseA 
her faunily history with her, and that she told him of the many 
escapades of Lucian Fletcher of Virginia; that, in substance, she 
told him that she herself was a native of Amherst county, Virginia; 
that she married Lucian Fletcher about the close of the Civil war; 
that shortly after they were married dissension arose, caused by 
reports of the foxier escapades of her husband; that when he was 
25 or 30 X-^are of age there was trouble in his home town which 
eaused disgension between him and his father and his father's 

people; that they gave him some ivioney and a couple of slaves •> a 

the 
man and a worrjan; that the name of the man was Arch and that/name of 

the woman was Mary Elizabeth Woodforl; that the three "drifted 

ever* to Fayette county, West Virginia, stayed there for awhile 

and then left; that they "drifted* north toward the Canadian line; 

that Lucian told her that in order to get the slave weman over to 

the Ceunadian side, it was necessary for him to marry her. The 

witness also said that in May, 19 28, a daughter of Frances 

Fletcher and Lucian Fletcher, Ibrs. Flavenia Ceffey, sjuae to live ia 

his home and was there for about a year; that he talked with this 

daughter of Lucian Fletcher about her fatxier's escapades; that she 



f 



-lOi-awoof^ 9fi: V - *9i9v& aoorusi'i bftii-XA* 



^ii«<K 9i:r;t 'to add hlr 



£ii bfil'iiifS ^i^ittsyii a»or«iT^ 
' Idttba^lt'i ti9tii 






A • e«TeXe lo eXquoo 

to ^aiei\jBii-i f;ii xiotA «f 

S). - .-i. ■ 
990 a.. . 

&i.At ■" '•"' '"-■■' 



.rtiff avfis x*iii *«*^* ;»Xecbf 
;cuB)inow ; 'MM 

, i ;.) «>i;t»x«t 0* "5»»« 

n:il ;*tsX WDtii btUi 

• ioi naloiid taAt 

,iibtB nnibenMO 9&t 

■ r''\ ru'icujJ. fcruj a»rio*aX* 
fv.' fit-.- jiifiori alii 



said, "Miy father vaa In a good duuiy serap«a," Tai» witness 
(Prank jBrlsoo«} also indentll'led an JSpiseopal prayer lorok as 
being a part of the family records of the Virginia Fletoneri 
and also a letter written by Lucian i^'letcher to his daug^iter 
Jlavonia* The prayer book, which is in the possession of the 
wife ef the witness, is claimant's exhibit 1S«C« The letter, 
dated at Lynohburg, October 8, 1393, is exnlbit 36, recelred 
in erlder^ce for the purpose of showing that liUolan i^letcher ac- 
cepted the children boim to Frances Sverett i'letcJrier prior to 
their marriage as his own children. The witness also testified 
that the general tradition oi' the fsuaily was that claliiianta, 
Mary Pletcher Braouaer, i!'iaYonia i''letcner Oof fey, and Cornelia 
ilora S'letcher Grow, were recog;nized as the children of Luoian 
Fletcher, 

One of the traditions about Luclan Fletcher was that in 
an altercation orer a colored woiaan he inflicted wounds upon 
another man, from which the man after vard died, and tnat this wss 
one of the reasons why Lucian and the slaTS woman made the journey 
to Canada^ crossing somewhere about Detroit, "across the Detroit 
riTer," 

Mary JT, Bramiuer testified that she was the dau«^,hter of 
Lucian Fletcrier and Prsmces Everett Ji'letcher; that her father and 
Bother, lived together for about 22 years; that they lived on a 
fana owned by Sydr^ey iJ'letcher, a brother of Lucian; that there 
vere many disputes between her father and xuother about "this West 
Virginia tnlng**; that her father's folks sent him out to West 
Virginia with the slaves to get rid of hia; that he had ao many 
troubles and so many fights tnat he took one of the slaves and 
vent off to Canada; that she heard ner father and mother frequently 
quarreling "all the tiae about going to Canada, axid all about tko 



s 

.'•1 T: uisll. 



ittioii- rr.^j.xo 1 .. _,oc»^)"i ©IS)'.' ,woiC a©rt&;t©r«i. *Tor4 

■ . ' -l-x 
'to 1 w.: u»i! eff* a«"- hailxi-Bft* aOiaeis'Xc:: «<j. x-uji. 

M no bdvlX x»*** ^^^^ ;»i«ftTC i^S Juocfi t-^aoi 6s /iX .initio* 

#»9W ilri^^* ly«(ia a»£iiJon. i>i\^ -latiixi't a«rl asowisd a»d^uq«il> Tiosoi siew 

^MN oc bmi 9d iJtttM ; -d ^^ 8- ' iyt^T 



10 



fights and laurdert, and I donH know wixat all." To tJti% rtqueat , 

"Tell what you heard. Why tiiey sad.d he went away," ahe replied: 

"There v/as a terrible murder and his people wanted to get 
rid of hiiii, and they bought this place out In the wilds of Wtat 
Virginia and sent hija out there vith. two slaves, and he stayed 
there awhile. I don't know how long. Anyway, the man died. He 
was killed. I don't know what happened to him and they were going 
to kill hiiji, I guesa, and he took this woman and left with her-* 
X heard him tell it r.\any tiiues, when he got to the "border they 
Wouldn't let hia across and they had a cereraony before he could 
erose the border. These slaves they ^^ave him. were Arch and the 
woman was named — 1 cannot reiiieHiber 50 years ago what happened." 

This witness Uso said that her father taught her to write; that 

there was no sohool near; that she saw his handwriting and his 

signature many times and was acquainted with the signature and 

would know it anywhere. She identified the signature on the letter 

from Lucian fletcher to flavonia (Exhibit 36) and the signature on 

the bottom of the second page of Exhibit 9 ae those of her father, 

Lucian Fletcher* 

£xhibit 7, a death oertific&te, shows that francos 5, 
llotoher died January 1, 1932; that she was white and the widow of 
Lucian if'letcher; that fshe was born £iOYember 22, 1344. 

One of the daugnters, Lucy, was married first to a man naMil 
Hill, and aTterward on April 25, 1901, to Stonewall Scott. The 
license to marry issued by the clerk of the Circuit court of Hock 
Ridge county, Virginia, shows that Lucy was then 29 years of ago, 
which would indicate that ahe was bom in 1872, eigiit years before 
the marriage of her father and mother. The evidence, however, 
shows that Lucian fletcher, after the marriage reeognizod all thoso 
children of i'ranoes li^verett as his own. 

Wo hold the evid^ice above recited (there being none to tho 
contrary) makes out a prima facie case for these claimants. 

The objectors, however, contend that Mary i^rarices Bra;iner, 
I^ank Briscoo (husband of a daughter of Flavonia Coffey) and iaro. 
John J. Williams were interested witnossoa within tho definition 
of section S, chapter 51 (111. State hax Stats. 1935, p. 1615) and 



« ;^c»jLip*rt ^iiJ- •! ** «II^ ijisim weiiat t'nofe Z l>a« ^9t9bitm baa sisi^lt 

Isjj 05 i;>?«cfra6Tv ■xai>iijn 9ldJtii9i « saw ©led^* 

•> .1 ^ v^«■••^r"^•A . . -yen-: i'.i;tS I .«,r|i[w# STa£l& 

■Ji HAW 

.. . , ri4 0^ 

j •. u ;s;ri""" -- id^usi ^adJra'i i«ii ^aii^ 6i«3 osUk maaailtt aJ/flP 

/ttttaxT 8 iff •vrsti <»A» issii ;t«sn X&o4»« cm asv viaii^ 

o ^^tucT^fliiia arid- iiiiB (dS *i«rirf»a;) «iaoT«X* oi tortei«X^ oaiouJ: aioTtl 

lo woIjIw aii* &as •#i;riw jwbw diia ;|r«it* ;a£Si ,i ^s*ik!iTelt bulb i^im^f&iti. 
.>MSX ,as Tdrfmaroa atod bjbw »ife j*:xU jtsrfo^tXU ss&i'jud 

«iiT .ij^aU XXflW»ao;tfci 0* ^li-^^l ,aa Xl'm<^ ao fiXaw^i^it'J^ bim «XXifl 

«*8^ ltd a'£ft»x ^ a»di^ ««w ^ocrJ. #«;ir evo/ia ,«i^i:^tiV ^x^twoo •&&!& 

«lot«»cr sifi^Y *riai» ,ST8X al iwjcf aarw siSs ttuLi ^iBoibal bLuav aaiifm 

^iQV^-'cii ,*0ii»Axv9 aril .-jaAJ-oa feae t»ii*A'i %9Ji 'ttt a^Xixm •«[# 

•aaxi:t XXb fca^la^oa^i 9'a^i'viaia arid t9J"1«5 «"«orfo*»X'». tmioui i»iii avaxia 

*a«o alii a« ^d^aTdvlii aaonai'i lo asTX^Xxda 
osU of anon ^BX9cf a-xaxi;^ ) ftai^id'^'x ftvo>ia aonaX'iTa «4^ bXo4 oW 

.a*fi««ij8Xa aoart* -xot at«» S^B^ »mifVSi & *ao aaiU« (xx««*«oo 

,iaiajVsiiHdL «aort««t t"*®^ J^an* fta«#a<»a ,-xp)vawofi .arxoiaatc^o ^^^'^ 

.eaA Sitft (^a'naO alaavmn to i«*i\»u«A « lo fsJuarfaiiri) aooai«<i atiwit 

loiitlnitab aitt ©JkiiJlir aaaaecilw fra^haftOd^iil aiaw a»aalXXi^ J- f^tol 

^ /sfiwr arnr •'fr.^^ ood A'»..4j>4 rrt\ n* tm^am^tiA B nal^fiaa )a 



11 



that their teatiiuony was properly disregarded by the trial court. 
They cite Laurence v. Laurence . 164 111. 367; In re Petition of 
Saunders . 245 111. ^p. 423. lieither Mrs. Wiliiame nor i-r. . I-rie- 
cee '^ould derive any ismiediate financial advantage from finainge 
in favor of claimants. They were, therefore, not disqualified under 
the statute. 

The persons who raise this otjection should have siiown that 
they had some standing to do so. They have not offered any OTidenett 
tending to show the qualifications required in this respect. Claim- 
ants say (plausibly) that section 3 of chapter 51 (111. State Bar 
Stats. 1935) makes section 2 inapplicable to proceedings of this 
nature, *Iowever that may he, by the weight of authority in this 
country, statutes such as this are not applicable to proceedings ef 
this character (28 R. C. L, 510), although a minority of the courts 
hold a eontrary view. See section 99 of the saine autiiority. (23 
H«C,L, 512.) It has been the general practi-je in the Probate 
courts ol* this State to receive tlxe teatiiiiony of interested persons 
to establish the table of heirship of a deceased person. Indeed, 
sucla testiiuoliy is nearly always necessary in order to determine the 
facts. 

The cases relied on by the objectors are distingui sizable. 
In the Laurence case a colored woman claimed to be the v/ife of tlxe 
deceased, a wnite sxan, and there was an issue between her and the 
heirs aa to their rigjhts in the property of the estate. In the 
Saunders case Dr. Saunders left a last will and testament in which 
his wife, Marian B. , was named as executrix, and the will wus ad- 
Bltted to probate. There was a proof of heirship, in whicli it was 
found that the deceased left him surviving l^arian £. , his widow, a 
son and several granclehildrea. kore theui two years thereafter a 
woman "who styled herself as Grace k. Saundere" filed a petition, 
averring a marriage witli the deceased alJ:iiost 26 years before and 



Ml 



-exi' ■• ••^'^"- »• . .-'-- .QCfA. .Ill Q^ *£3afejayi* 

al.:- '" - ,._;,.,j,(;>u-o- •j.-i u.i :3j.ujii£>ij£q(8««i a. «oi..J'a«MS EO^iiiaa {5€<3X ^ai&tS 

acfiifoo 3j:3- 'iQ ,,j iiociiiH B ilai/orii Jjc-: , (0I<5 . -- ,H BS,) ■$»;JoAr*Biip sJ;4it 

68) .^is.'toiiiki'ti Qiutse 9ri.» 'lo >?Q noiJ-si; ^ .?/5»J:v v^tB*:!*^*)* a LXoff 

£>.>jKdo:i:<I 9iW ni doi^©«iq Ij3isa»y sdv nf^eoi a^^a " ' .2X8 *<1*>?#H 

Ifoldw rti JrK»i»ujJ89>? Jjiifc XXivr im:£ » *'ieX »«»Jbi3iJije .^ •Oiso ftojia^Q 

J, , '/^; : ,, .aeliflii aniviv-Sffa i^iir' iJ'teX itasMOObb »di iodi biwo'i 

« tt^rUiTivtij a"xs«x »"* ^^^* *'=^o*^ .OftifeXi/ialwitaia X«aa¥S»8 A«* noa 
,a#l*i*6<T is Jt»«Xli >'«'£6X)aKfcc . Uottorf AoX^** «i-iw" fUBiaow 



xa 



praying that th« fom«r order ol' helrehip ehould Ise Taoated. Tb.t 
Probate court dieraissed the petition after a hearing, 3ki9 ajppealeA 
to the Circuit court where upon ohjection she was held to be an 
incompetent witneae , and the Apellate court ol' the <:iecond dis- 
trict upheld that contention. That proceeding was in its nature 
essentially different from tnia, in tuat the court was called up«n 
to decide An issue of law and fact between the contending parties. 
In other words, that proceeding had the qualities of a law suit. 
This proceeding, so far as this record discloses, is only an in- 
quisition. We think the court did not err in adroitting tht testi- 
mony and did err if, in deciding the case, the oTidence of liirs, 
Brammer and other witnesses was excluded upon the theory that they 
were incompetent witnesses. Indeed, no objection was made to 
Kuoh of Mrs. Brammer *■ testimony. As a matter of fact, the ob- 
jectors crosB-ezafflined her at gr«at loagth. Moreover, these seek- 
ing to interpose objections were witheut standing to do so. 
Brownlio T. Brownlio. 351 111. 72, Even excluding the testimony 
of Mrs. Brammer, we think the claimants made out a prima fa^ie oaoe. 

It is next contended that the alleged declarations of Ludan 
Hoteher ef Virginia were inadtiiissiblo in the absence of other 
proof of his relationship to Mary Turner, deceased. Jar chow y . 
Qrosse. 257 111. 36, 100 h, S. 290, Anno, cases 1914 A 320, is 
relied on. The autuerities cited sustain the rule contended for, 
with the modification that very slight evidence of suc^ relationsh^ 
is necessary. There are also authorities holding to the contrary. 

Wigiflore on Bvidence, vol. 2, sec. 1491; Re Estate of iiartman . 
167 Oal. 206; Re Clark . 13 Cal, App, 736; Sitler v. Gehr. 105 i^a. 
592. Here tiiere are circumstances in evidence denors the declara- 
tions of Lucian Pletoher siaowing prima facie his relationship to 
the family of karia Turner. There is the identity of the name of 



SI 



,B9iJ"t6q gajLt)..'©: . o^'i flite ' n4 «fci»»il> o# 

.^ioa V ' . ..'tow i«'' 

-do 9Ai fio&"^ ttjaiu s aA ,'^n:offii*a»* a'tSx/uaxttli .B^^/I 'to 'loim 

^floi'ii^ea* 9 AS ^ttJLbuL9X» nova /I . .-■ I U'€ .t^ila^oiH. ,r allawortg 

.saA0 axQf.l ggii^ « Jmo aijem «*£ueial:Ai« »ii* Jlairi* »w .ismniana .: 
fwleiftl 'to 8rtoi•i■fi•Xi.:x•J9^ £»«^*i ^ tt ei d^I 

a«xi;ro 'to ©onsBcfis sri^ ui »IdfJ:8eliJ6<B«i s'l^w aifcls-xiV 'io TsrfoiJftX'S 

,g wgrfp'uil .ib»8«e89b .ismwr v:n«4i o^ Qirianol^al^i aiil to 'iooa^ 

,io't b8£>u0^iio^ aXi.- Itaitcfuft sxiT .no JbelXai 

q^fl8flox;}sI»t liowa 'to oon«6iv« ;^fvAl£w x'lav vtari* aoi^jsai'tlfeaca ttW rttlw 

naa^Xfit 'to s.i..^J-j ■ aH ;I5i-j. ,o •■ . - ,»»n«ftiTK no •ioksIV 

.«i COX . -Uifti^ .V -tQiii^ rof**; . . . . itxi ip a>a ;sos ,x#o rax 

-^'XAiftsb »iii f 1 Qtiat, »on»t ?«*o.xe*amM»Tci • sus o'l^? J- '^'X»H .ROT 

e^ qliianot^tr C*t ■eiii fiJtOjBl £ ' M!9iioiftIl rwiouJ to naolS 

Im .8ffen on: irnhl 9Ai tt ^irndt .leHii/T to ^Ilaal erf* 



13 

Luoian Ifletohcr with th« name el' the husband of Mary Sllcabeth 
Weodfork, the mother ef Maria Turner, as ehoim by the aeeeeenient 
rolle and by memorlale of transfers of real estate. The relation- 
ship was al8o shown by the testimony of the vitnesBes, Albert 
Venerable and Mamie Warner, There was also the faot that the dset 
ef May 2^ 1859, made in Canada indicates that Mary Elisabeth 
Fletcher wae formerly of Lynohburg, Virginia, and the handwriting 
of Lucian ^.etcher on Exhibit 9, a deed dated July 26, 1859, made 
in Canada, is identified as the handwriting of Lucian fletcher of 
Lynchburg, Virginia. We tlaink this eyidence more than sufficient 
to comply with the rale as stated in Jarchov y. Grosee . 267 111* 36. 

The objectors also contend that the adx^iission of eTilenoe, 
as to declarations by one spouse offered to prove the fact ef 
narriage, in order to be ad^idssible , must be made during the con- 
tinuance of cohabitation of the parties; that otherwise suoh dec- 
larations are not conter-pcraneous with the main faetto be prored 
and are not a part ol the res feestae and therefore inadiuissible. 
13 R.C.L. 424; Drawdy v. Heaters . 130 Ga. 161, 60 S. ^, 451, 15 
L, R. A. (B,3,) 190, and aordon t. Crordon . 283 111. 182, are cited. 
On these authorities it is urged that the testimony of MaEiie Warner 
as to admissions of the mother of Sarah Thornton, namely, Mary 
Elisabeth iletoher, concernine^ her marriage at the Canadian border 
and the teatii^iony of Mrs, Brairimer and frank Briscoe as to statements 
Bade by Lucian Fletcher and Frances Everett Fletcher were inada^issible 
because not ma^e during the period of cohabitation. If this evidencs 
had been offered on the theory that it v/as original eyidence froa 
whioh a presumption of marriage would arise, there would be merit 
In the contention. This evidence was not offered or received upon 
that theory. It was received as evidence ad^-issible under the well 
recognised exception to the hearsay rule concerning proof of pedi- 
gree. The ground ef its admission is necessity. This distinction 



ftX 

•aoi-t«X*% sii'i' ,^jei«') X***! 'to »is"i«ix«-i:3 "to elAiiio:fift/K '^cf l>a« aXXov 

S»9tk 9ii4 t££^ ^Qjst 9tii oaiM aA« »i[»j(~ .t:da-xjp.W -^isseM baa »Xtf£ien»? 

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«**ia ,9a8i :ut, b&t&h A©sl> i* ,9 -JicTljrlxa no xtits^ori ««Jtoi/J[ to 

lo '%»£i&i»r'i i-y,i&u>i lo ^jux^x-xv^l^asii oii^ es SaisiiXXitabi., ei: ,«fe£a«0 ill 

.M •lii VeS .stag e tip ^y w pap-tja"^ 0J; |>«**i.t*ji ex ^Xwt: s>jf{^ xi^-iw x,Xq.ffio* 9t 
,ftOa»blv .;i8si«&fi a*l^ J' Ail* 6n«dtiioo otls «ae#9®t«fo s^i' 

-Q»b siouB daiyrtB^iio ^axij ,-adX;fXnq »x£;^ 'ta Qol^-s^Xdaxx .rtBunlt 

.•Idie8iii4l)«iu 9-1 Otis 'ivi^ ha^ ^ia&u. ^? ft4;r 'te ;J*9<i « #0a txs boa 

c:I ,x.U . ,^ 00 ,XdX ^D OCX ,ft25Sto:4i~iI^.. ; ■ . . . I 

.of^ia 3i# ,.^!oX .XXI o&g . i:ti.Jb-x^oa y^, fifi<»,- ^^f^ ^a^' «0^X (,^*» . , . . ^ 

.,,. V .iidaii 'i© ^iio^ix^s®* axi* **ixtl fesis?* asiiiiOJiiiue sa^iit aO 

X^mML ,v:Xaias»xi ,aa^axoin? d&t^ 't« rs^xij-eiw sdUT 'io auo Iub lathe j^_,;Mm 

■X. ■.:. n«liM»fte£>- tJCtlJi ^jj 9#ei'xiu»» ««»ii jjoi^:i»«iaoo ,i©d'oi'»X'S; xCd-acfjisiXJI 

xait«ia>*«U &1&'' idiioimi'i ii9'%&v'& •^^iiA'x'i ba& -xaiio^sXU xiflipvJ Y«f a^« 

9uaabiir9 tisii '11 .rioi*4<^itf^xioo 'to IspXtceq ©«it s^i'SWiJ aJUem *on «8WJB©orf 

ASi'l aaaaJbiva X»«ij|X'XO a** ii i«xl^ ^oaxil ©xiJ oo Aeia'Ho aascf fwjrf 

^jc-cau a6[ JbXi}«>w niftsii ,9a.ii& l»Xx;ow a^i^siictaA lo aoXiq/w^tq £ iloXxfa 

na^v J^aVX»c sxa^to ien g«ir aaaab , aoI^aad^iiOQ ax^^flj 

X«v axi;^ xabau aXdJtaeX^ibi« Boastblr* ba bQri909% «isv !iii(# 

-IfcaflF 'la 'iooxq ^ikflXtJiawiioo laixj'x \««:tjaaii *si^ ' i® Jb»sixx;goaan 

Uv>^.;u -jsxc- uliSX *i*ioaao»a eX a«,laBX«t6*i «#i 't© fixiwoij adS ,»art8 



14 

It pointed out in IS R.C.L* 424. The rule in Illinois ie et&teA 
in SttKrue ▼. Grill ey . 329 111. 458:; 

"Pedigree may te proved by ueareay eridejiioe, but it eeema 
to be well settled that a declaration coucerxiing kirisnip repro** 
dueed as hearsay* to be adxaisaible, must haye been mode by a 
person, since deceased, beJ'ore a controversy arose, unol wiio was 
related by blood or afl'inity to some branch ol' the Tamily the 
pedigree respecting whicii is in question. ( Jar cap v v. wrosse . 
257 111. 36; Aalhola v. .People . 211 ij. Y. 406, L.H. a. 1915-D. 
215. )« 

Other oases in whicii the rule has been applied are Welch v. Worsley ^ 

330 111. 172; iSstate oJ healea v. ^ealea . 254 111. ijipp. 334. 

The evidence in this record is very far iroiu being all that 
we would desire, but it is the best obtainable. The oarties ob- 
jecting olTer no evidenee at all. This evidence notwithstanding 
its apparent ineonsisteneiee, upon the wnole tends to shew the 
marriage ol' Lucian if'letcher to Mary Elisabeth Woodi'ork, a colored 
slave woman, and that Laeian Ifletoher of Virginia, husband oi 
S'ranoes Everett, is the same i.ucian JTleteher who Married Mary 
Slizabeth WoodforK and lived with her and tiieir children in 
Windsor, Canada, and was the fatner oi' Majria fletoher Turner. It 
follows that these elaimants are the only heirs at law and next of 
kin of iiaria Turner, 

It is, hoverer, contended with great earnestness that sino* 
Mary Elisabeth Woodfork was a sl^ive and colored and x^ucian ii'letcher 
of Virginia, her i^taster, ^a,s white, there could be no lawful mar* 
riage between them; that sueh marriage was absolutely void as con- 
trary to public policy in Virginia, Michigan and Illir.ois, as well 
as in some other iiitates. The statutes of these states, as they 
existed during the period in question, shew that such was the laar 
at the time of this marriage. Code of Virg-nia, 1349, cimp. 196, 
p. 74C, sees. 3, 9; Compiled Laws of iidciiigan, 1357, vol. 2, p. 
107, and par, 3209, p. 9 50; Illinois statutes of 1353, cioates 
Treat & Blackwell Marriages, p. 579, sec. 2, pp. 320-823, sec. 17, 



£,1 

M 

' ■■; o;r '.', ■ '.'-■■1 

' ^ M»ci.« 

. gaXs 1 oft. .♦ V . jae iiS> »^" «Xk? i>«iXti9jB «t&os a.>,u:l sli.'-i sil* ii»li. -'G^o lerii^O 

.i»&£ ,qq& .ill MS ^&^^i^9h^^_>v^^m».Is»i i 'jf.ft fe>j-jBJ-cai- ;SVii .1X1 QiS- 

ni .laiJaXljrfi} iJI»^ haa 'xttd iliiw l^eviX fefis Stcotboot At9<iMsllS. 

il ti^tvxisT: T»flo&«JL^ siXxaU 'to -xauc^jBl aili wsw fe£t« ,«I , r.af'niW 

Id ihr»ti £)«« vex ita exlBii xlixe t>nj aajg 9-Jen»mieLf> Q»»iii' iiuLi kwo'XXO''^ 

,t9iniifi ai%siM. 'to iiisC 

•Tea li/tfftiL on dtf biMott •id^U .s^iifw aAv i, -xo jraj5«)i "X^id ^simsTitV ^o 
i0ii «ii i>Xov ^X«d'uXo«ilA nww «3^Xix«ia i^ji« *«iif ;ia&jdiir fiK»ow*«cr s;.4J&ii 
ii^'v u£ .Bxc-^XXI bua, flttmiiiaiid ,£txait|i:lV oi ^£9iX0<l uiXcTijq o;f Y^cjei;^ 

VtoX 9iii QAw a£)ju«t j-HiMi iTu«ia ^i\i>liG,&up ai i^oiiocr d^ri^T 8£ii*Zij& b&inlx% 
^hQl .q^ai^ ,yHiX .ajtmaaXV 't» »i»oO ,»sjaiii'i«ai Bli/J- 'to 9mii- itdt t» 
.(i ,ii ..tuv ,Vf!La: ,a.i.Ui%oXii 'to •weJ l»eXl<?tttOU ; , .or^.ts ,Ch^1'-Vif 
«©3'*J>o ^i'&m 'to a»#irirt;>ii iixertrXXl ;Oec .«} , tfOSE .tJB<i bflw ,'POX^ 



16 

p. 824, 8«c, 23» Constitution of 1843, eeo. 14, p. 74. 

Without undertaking to diaeute in detail nerely technical 
points, it will be sufficient to aay tnat by the fifteenth Anend- 
ment to the Conetitution of the United States slavery was abolished 
before the deatu of Luciian J'letcher and before the death ef Mary 
Elizabeth Fletcher, koreover, by the statute of Illinois Barria^ss 
of thie kind hare since been validated, and the issue thereof made 
legitimate. See Illinois State Bar State., 1935, ohap* 89, par. 
19. We have already stated that the fair inference from the evi- 
dence is that the marriage in question took plaoe in the Dominion 
of Canada and not in the United otates. If objectors desired te 
show that the marriage was in fact invalid in the Jurisdiction whers 
it took place, the burden of proof was upon them to produce such 
evidence, as well as to produce evidence wnich would shew their own 
standing to make objection, JIfiaxy Elisabeth Voodfork was not a 
slave within the Jurisdiction of Canada, aixd the iuipediment was re- 
moved when Bhe crossed the border and canae into the Jurisdiction 
where slavery was illegal. It Uas also been held by the courts 
construing the remedial Illinois statute above cited that unless 
a slave marriage has been disal'firmed, it ie as blading as if the 
parties had been free. Middleton v. iiiddleton . 2Sl 111, 623; 
frescett v. Ayers. 276 111. 242, neither of these parties ever 
disaffirmed the xaarriaii,e so far as the evidence discloses. It is 
true that shortly after his rexease from iiaprisoniuent at the end 
of the Civil war, Lucian ifleteher began illicit relations with 
if'rances JSverett, but x;jaeBe relations were net matrimonial until 
some yeara after the death of iUisabeth if'letcher at Windsor, iiot 
until isao was he married ^o JTrances ifiverett in Virginia, 

We have, at tue cost ef considerable labor, considered the 
evidence and legal questions raised by these objeetors on this 
voluminous record. Vf« mi^t have declined to do so, because, as 



- f 

•b«ia '£o9toii^ 9UQP.i 9ai bOB ,b»^BblLM}r em^d 9onia ttrmd StttiiL eldt %# 

•^ bBtiafib sioio&ldQ 'li ,^9i»tii b^ilstU Bdi al imi bss& B%mmi9 tm 
zioits iiOiskottj oi id^sii nocru a«w 'taotq 'to £i&bikiii njii , »&eXq ^ooJ tl 

aolSoibsixsit ^^^ oii\l «««»o ba^ %®bto^ 9di h*uao%i> 9jus a»dv b^roa 

Bivuoo '^n-j v,(i feX«f{ flssrf o»l*t a«i. . .^'^X.ii. a*w \{;^«»rAjl« •i»Jiw 

9^9laB t^id^t bB&io dvocf« a^Tfi^r^^e Ai.«£dtIJtl XelJ^du!®! et^^t ^ali^/ttiftoit 

•ii;t ti 8« 30xfcald si^ ,&»flwJbt't««iJb ii«9u «£» e^iaVAA ©TfiXa « 

;SSd »IX1 IffS , aoi^5I&g..'^i!L,*J! .»da"t a»»tf bBti n9lirMq 

t^r** 99i^^ieq an .BiH^i^H ,«*S .ill 6fS .b^syA .y ^^Tooa^X^ X 

. .>>oXo9ib noadJbiy* 9sii ajB ta't o« 8sh>^'si^«^ ^^^ b^mirilMB ib 

Jt>:iH »iit J'* #»»wRo8Xiqr-x flwn'i »a«»i.»'S aiit i«^tgK xli'xiitim iadS 9itit 

Xltrjj X»xaon\Xi^»iu ion »*!»» enoX^^^ixri •aaiia ^wtf ,**»ix«»va BaofUfxV 
. ];o«ibul'.v ;r4i 'X9f£o^«X% ai9(Ssitt£<i 'to ci^^Mfe orlit- •xetf'Jus s-umx »mom 
.elvu.'^itV &£. itBttivia. sAoibbiU at t^kivua •Ji saw oeex tiism 
9dt j)«nc«Maooo «'X«(fAX •X^0tt«t}i8Hoe lo #««o ex^ lit ;,ew>£i e^> 

• iri;r no jn»<ro$^t;>o 9»9iU xd M9iJ6i «0ioila#j;ip iJBSittX bae •ontibir* 



^ 



16 



a matter of fact, thare is nothing in th« record ten dints to show 
that the objectors hare any interest in the proceeding that would 
give them any riti;ht to he heard. In tJ-ie Probate wrid Circuit 
courts they should have teen required to mnke prelinlnary showing 
of such interest. Matters of this importance shoull not be tried 
pieceiiieal, as euoh laetiiod makes lauch unnecessary work for the 
courts and tends to prevent the attainment of that finality in 
litigation which is required by the publie interest. 

The judi^nent of the Circuit court is reversed and the pro- 
ceedings reianded to that court, with directions to enter an order 
finding claimants to be the heirs at law and next of kin of Itaria 
Turner and to duly certify sueix order to the Probate court of 
Cook county. 

ksVjshsed mn rsmahdbd with DIRBCTIOJJS. 

McSurely, P. J., and O'Connor, J,, concur. 



61 






38730 

HBHCULIS KOVELTY CO. , IKC. , 
a Corporation, 

Appellee, 

V8, 




URf 



OP COOK COUNTY . 



LIGHTfiBR PUBLISHING COHPORAT ION , 

a Corporation, and CARROLL E, ) . 

vHTxmoK. ^^^^^^^^_ j 2B 5 I. A. 5 90^ 



MR. JU3TICS MAICHBTT DELIVERED 'MB OPIiilON OF THE COUHT. 

Oetoter 20, 19 32, plaint il'f corporation sued defendant 

corporation, publiarier oi' a magazine called the "Automatio A^e," 

and Vatteriok, its mwiafcer, alleging the publication by them of 

an alleged libel, as I'ollows: 

"Sditor's fiote: AUTOioATIC AGS has refuBed to accept the 
adyertising of Hercules Novelty Coiopany for some time, although 
we see it running in chialer iaagazines. They have not shown the 
least good faith and should not be allowed to continue to gyp the 
Industry, " 

Damages were dananded to the amount of #50,000. Defendants file4 
pleas, to which plaintiff deiiiUired, The deiuurrer was sustained. 
Defendants then filed a plea ol' not guilty, wita special pleas, 
setting up that the publication was privileged and justified. 
Plaintiff Joined issue on the plea of not y,uilty and moved to 
strike other of the pleas and filed a demurrer to plea ho, 4. Tim 
notion to strike was not pressed, and plaintiff thereafter filed 
a demurrer to all the special pleas. 

When the cause came on for trial this demirrer of plain* 
tiff was undisposed of, and the court, vdthout making any record 
disposing of the demurrer, caused a jur^ to be iiiipanelied. Counsel 
made opening stateiuents to t ^e jury, defendants' counsel, among 
other things, stating that he would prove the alleged libel to be 
true. After consultation in chambers, as a statement ol the trial 
Judge indicates, the jury was withdrawn and the oause submitted to 
the oourt. Defendant manager was not present in oourt. l^o wit- 
nesses aopeared in defendants* behalf. An affidavit al'terward 



THUdC HOlf.B'iW «0H 



X 0£T8e 

..0 41 ,.00 yraavoML eiJUOHKH 

^ /\ T ^ 9 <? ^ ,ii;-Iii<u'ii:iV 



J. BoiiiDtsR 'to anleidhisr!?* 
i.,„ _ . h'-'>- K.ffp'r boos :)'8«9X 

,a«y>X(i Xfiioix ,%ili.u!ki ^on. 'to aaXci a iflX't a^Ai s^eoiJbni.ileG 

9i fcsvoa Jbfte x^Jti*. ? jseXq sxU no shjbbI i>«nlot Tllinxiiif 

Mi . .^}4 4itdxq uJ is-x-xuittoe) a bo Lit bsxe. aasXq 9tii 'to i&dio sitiiB 

b9li't ioi'ls»'iQj\i Vtlial^Lii baa ,Jb»ea9iq SQa tayt tslltic o;^ aoiiom. 

•««»,Xi| iiBiiM»Qe ddJ lis oi ioiTmi9b M 
-oJLaXq lo lit^iittKi) eiiii lal'X^ to'X uo «(ua9 eauac siiu noxlW 
bxooiii X'^ '^alima iu^niiv ^i-iuoo o. , ttt b9so(i»lbau «aw 't'tli 

linwoJ .bsiXooaqwi , i»-X'x«Miafi •ii;f 'to ^nxeoqaib 

MF AJ^ XotflX l>t>j|:>lXc 9£ii oroxq hlu&w exi ;f«iiJ ^nl^^^s ,asa^£i^ ^caii^o 

X;3iii oiU 'l« ^JiUiH»tfi^a a aa , ttacfxaaiis^ ui aoii^Ai^Xi;aiiou *c»^'tA .arxY^ 

o^ buSilJBdywi •ajtiaa a^U bna nwttibiU'iv eaw xxul axi^idoitaoJtkal asi^vl 

"liw 0/1 ,tiuaQ ai iaBuHtu ion ««w te^iiaaafai j-aai)aa'l»C[ .It&oo eii^ 



subrLiltted Is to the effect that they did not know tho cauB* wm» %^ 
he tried at that time, Tiioir attorney, however, was preaont. Tho 
evidence for plaintiff was submitted, -'ind the court at tho cloot 
of plaintiff's evidence made a finding for plaintiff, aosesooA 
dairaxtiQB in the suk of -^^1500 and entered Judgjaent on the fii.ding. 
After a i^otiou to set aside the judgment and for leave to defend, 
supported "by affidavit, was doi.iod, defendants gave notioo of this 
appeal* 

Tliey contend, in the first place, that it was error for the 
court to try the cause without first disposing of tho doiuurrer of 
plaintiff to defendants' pleas, and it joiust be conceded that such 
practice was unusuaJ. and irregular* It was so held in Hopkins v . 
Woodwax e lf ''^ 111. 62, althougn the court there was ol the opinion 
that the error wa& not reversible, because the plea vfae in fact 
bad. There was a dissenting opinion upon the tneory that tho ir- 
regularity constituted reversible error. iPlaintiff here does not 
contend that the pleas were in fact bad, but argues that tho in- 
ference from facts recited in the record is that the demurrer was 
sustained by the court prior to the trial, Plaintiff eaya that if 
it was not, defendants waived tlieir rigirit to have judgment on the 
decmrrer by going to trial without objection, citing Devine v ,. 
Chicago City Ry. Co .. 237 111, 278, Xhis would be a valid argument 
if judgment had been against plaintiff and, it appealing, would so 
argue; but tiiis demurrer was taat of plaintiff, challenging the 
merits of the pleas of defendants, Defendants by going to trial 
did not waive their rights under good and sufficient pleas, Whether 
tlie cause was tried erroneously without determination of the qualify 
of the pleas, as defendants contend, or the pleas held bad, as plain- 
tiff argues, defendants have a right on the record, as we understand 
it, to contend in this court that the pleas were meritorious and 
that it was error either to sustain a dexuurrer to them or to 



f &A« BBtuao «d;^ wo£q£ i^a bib %»£ii 4»at ^tf»Vl9 9rl ^ Iradtn 

teeaeaa^^ , t1ti#fllaXq -sol anJtf: ' 

axiicr ;. :i«l>rt«'tip , vefcx'i'tij ^tf fe«»5"xoq^ixB 

io tt9TT:i;.a!»i} ©iiJ to awiBoqaiJb ivri't itaai&tw 99imti 9siS x^t of txti09 
^beoaoii ««F itams it feiu; ,s^9Xq ^ ataMhrts'lab ot 't'tXiaia£% 

rtolaigo ui* Stu , . .5t<wl>oyW 

{To ,dXcii«tav*-: r >xl^ 

--zi eii.t aosiid' dii^ aoqu uoialqo B»i4'a9aBiJ^ a eaw &<t9iC! .bad 

3AW i&ftuRXBb QtUt tjtiii 9i bt909i ftdii ak J&e^id^^ aiojat otoi;! soaatBt 

9£Li ao iiMBi^hul i»vj»ii o^ d^iiS'^'^ i:x3j4^ Jbeirxjaw aji^uAftns'tsJb ,^oa ajiv d'i 

ifaeauusiA fciX»V <! •<! i)Xuow aliil' .SVS ,1X1 V58 ^ - o^ ^V'T- v^-tO oaaoiilO 

•a bXx/ov ,auXXadqq£ ^i «kiu9 TtJtiiitMXci #«ai«ae aosuT ImbxI #n9iii^ti/t '^-^ 

•ul ^al^sat llMXia /fltirtitale to iTiTfiit (scv tsituoMb utM Sud ;«x;3X0 

Smkii ot >»al03 x6 »iiu^bn9'U(L ,aftiAbis»'fb t* ««aXq diii to R;tl«aai 

i»/i*dn*' ,49«©X4 i^ttftiait'tiig b^w boo^i X»ba« ai-figXi ilftri* »TXi»« *e« MA 

y^tlu-hp axil t© aoi^i^flLifflBta<>al> ;fttdjrfJlw xJ^«»»»» «♦'!:• bail* ««w aaxixo «xl* 

oUXir «A ,b«rf blaxi 8«flXq •rii to ,fcuawO«c 8*flofca»t»b ac; ,aA©Xq ari^ to 

baeiaiftbou •« sa ,6'xoooi axU uo ^cti^lt » «r£xf a^^usbna'tob ,q»ub'x« t'tl^ 

btm awolia^rx-xaia ©ai*?.- b«»Xi? axi* iiti\i ttuwt niAS at bautaoo o* , *1 

oi la iaa/wr oJ usiTwuiab « rtjt«*aua e^ naiaUl© toifxa •««» *1 *AXf* 



•ntirely ignore th«m, Del'endantB argue the pleaa were aerltorious, 
auad we do not understand plaintilT contenda to the contrary. If, 
as plain ti If contends, thsre was soi ordsr sustaining a demurrer to 
the pleae and the pleas were in I'aet good, derendants are not pre- 
cluded from arguing that question h«re by reason of oniission on 
their part to have an order entered to the effect tnut they electsd 
to Btand by the pleas. This is the rule stated in Jooe|yn ▼. Whltf . 
201 111. 16, followed and approved In the recent case of Konev v» 
Chicago litis & Trust Co . , 354 ill. 144. The case of i>evine v. 
Chicago City liy. Go. . 237 ill, 278, ©n whioa plaintiff relies, is 
not contrary, as auove explained, 

The deiiturrer admitted all facts well pleaded, i'hess plsss 
show tnat the alleged libel was printed on a page of the maga^ins 
devoted to complaints by defendants' custorsers; that on the same 
page appeared letters froju these customers, which, if true, would 
have Justified the alleged libelous statement, whioh, as a matter 
of fact, was only an edxtor's note attached to these statements. 
It was manifestly unfair to admit in evidence a part of the printsi 
statement jvithout the context* The whole matter should have bs«a 
before the eourtin order tnat it might have been iuforued on the 
questions of malice and good faith so far as defendants were con- 
cerned. The court could not properly pass on these questions or 
justly deteriiiine the amount of damages without such information. 
If ws assume the innuendoes stated in the declaration to be true, 
the article in question was, as plaintiff contends, libelous per jf., 
but on the question of malice and damages the whole article should 
have been considered. 

One of the oleas as amended affirmed that plaintiff, as a 
matter of fact, did "gyp" the industry, and charged that plaintiff 
dealt in coin vending machines of a kind that could readily and 
easily be chat^ged into gambling devices prohibited by law, and that 



, ilB'^ batii&T9baa ton ob sir htm 

-»iq ^ofl , ' 3®» #«wl al »i9w a&3£q f^iii has vnBlq ^ri^ 

«o ftai 33 Jctio 'to ixoajsrtw v loiJBjJi, . ^.xiu^iH mtn't bsbeXti 

^T rftqp/- io saao .ii-«o«*T: srC* a/ fc»voi<?q£ fine fea'f'oXXo'i ,dX ,iil 102 

al ,8sl.. .. ,ijtt tt^ , ,,pO .yH. y.tX-j oj^coAriO 

»h«fu.GXqjC0 aivc .ijlisiJnoo Ion 

• njtJ6«s^;ia 9rfdr 'ro o-,«^ .i < MJil fce^oXXs »d[d- t^ri* waila 

•atte aif.l' a ;ar{aaols0O '«^£usliiie'£«B v.d 9;f'ii£:Xq<aoo o^ betov^A 

biijov^ ,'?(.t:; , xff'T ^ at ajBtiDt a 116 aaari* moi'i vi-^iiel l)«i«»q[(|» sna^l 

idiiBM ,'i , . . , i^ai»*tt#« uuo£»tfIl b»%»lLn ddt b^l'tt&uul 9irm'd 

,»Sa»L^ir:.i'': srjir'i oi b»sixyr&tr, 9*on a*T0lxlka ob \£sio aaw .d-os't 1« 

a^pd 9vj,;ri bXi.oiia ^lai^jTeai sXoriw ,^xa3noo ail* tuodilw ;rn9Jfi«d'«*a 

-ao3 8i»*^ atnjsbns't oa iltiB't 6003^ l>ne o^tlam. 'to «riox;^8»0p 

tn srif "ji:-»ii'; '38--, vj ! k) fKijN>u v;XT©q6iq Jon fiXi/ao jnwoo aii'i) *J»9aTC«9 

.„, _. . _ . ... >^Mmh lo ta&^em 9ii> 9atir.tfi'i&b x^**^\, 

^euii id o.-t .f -ttf • Ui f fvifi:J-5j a*o?iita«flai aiit ^aui&BM aw 'il 

«JB. 2SS Bw-'''* .— . -w., J-., .^i-i. iioltaai/p sr,l Blf)iiiA 9AS 

•• Tr ,. .o . •>.«!«» 6 bttp «i!'i>r«'* "ta iioi;faai/p 0dJt flo *b* 

.h«l»l>la£lOO imodT flVAH 
■ ^ f'tfi &»:..;. .*. aseXci af<:* "'■'^ "*■' 

••'" 'riJ)«ai JbHioo teJl* f»tfli a 1« aanljtiaja! gnifcnav iiloo «i tXaHA 
«»iM am* ,yrMl x^ f* t<fttiot<i «*aJ:T«b a&lX(teaa e^al Jbasxurio a<f X'^-^c^^ 



lia thinly -veiled language pluif.tiiT in its advertise. »«nts des- 
cribed tiie siwple manipulatioii required to that end, ioi aiarsninient 
to eui aaieiided plea olleBed "that tiie advert iseiuent mentioned iii 
said ajuended plea described two automatic pay-ofl's and that the 
jacJt-pot in tiie front cari be disoonneoted and the hidd«i jaok-pot 
in the rear would then be in operation and that both jaok-poirs 
can be done away witn in a jil'i'y and the said xuacnine can then be 
operated with pr without a a pay-oi"l' card," We think the pleas 
were in substance meritorious. 

We also hold that the damages allowed in this case are so 
ezeessive as to compel a reversal, fhe evidence in this respect 
is purely apeoulative, There is no proof of the nuuber of sub- 
scribers to the paper published by defendants. There is no proof 
that plaintiff lost a single oustotaer as a result of the publica- 
tion of tnis article. Indeed, the excerpt froci a single page of 
the magazine appears to have been admitted in evidexice witioout any 
prelimin'iry proof of its publication, Ihere is no evideiice of the 
wealth of defendants such as would justify an award of large 
punitive dauiages. In the absence of evidence of the financial 
worth of a defendant tiie courts have held that a jury has no right 
to give any more daiuages than it would if it affirmatively aopearad 
that the defendant was without pecuniary resources at all. Beesoa 
▼. gpssard . 167 111, App, 561; Mercy v, Talbot . 189 111. App, 1, 

Plaintiff is a corporation, incorporated in 19 30 with a 
capital stock of $5000. As was developed on cross examination of 
its accountant, in 1930 it operated at a net loss of $1104,66; in 
1931 it made a net profit of #2534,09; in 1932 a net Ions of 
#1314,44; iii the first half of 1933 there was a net loss of 
#1622,34, There is no evidence in the record which would justify 
* jud^ent for the aiuount rendered in this case, and we think the 



^««ia^^Ou .5«i» tikii: o^ m-ii^p^x suiitiili^qXaAa •Iqait* aAi k&dilt9 

9fa ii<9d;t ftat) »nij.iiu?ii foiise v Y.'^^^^ « iT^i ri*i* i{;«w« eoefr »J n«o 

-(fLH tc T^rfnurn srf:S to 'ieoi^. o« si disii'l' .•vi:;»^Xuoftea xL^tu% •! 

-irtfi. tf^pur.iJBi.'s eX^inla « $a«X YXlinimL^ fmtii 

^^ ,.^ , i _, .: ' - :)X^> :^jiw .i^aijMi ^aXoiJTWf aixi^ 'io ooiJ' 

V .*»olX«itj« eii to 'tooici ^"^^"'•'^■t*'!^ 

^,,.^^ -„ .-...,-, ,- ..-,, -- ;, i;Xt«>* «A **■«§ alXlAfen®!©* "to tiilM^W 

^•ol■»^M._i^>•»■ a<<f.t >,-. noa»J^i;T» "to 90fi»«»<i(* »Jrit «I .««i4*fliJBfc atTltlauqi 

,,.^:^ « ...jri^ feX«>il •Vjnii ei^uee^ inii dr«uBfen®t»& « to iftT«w 

.i ♦crn*" . ■-^■' "■ - ti_y„i;*.,i._.X_XS3?* t'-*^^ **f*?^ '-^^^ ^**' .I>_^e3ft ev . r 

■»« »a©X ;^*a it tfiw 9ti)at €«W 1o liwri ;>«aXT: »riJ nl ;»^.>X£X| 
^i.jft< > t i>Xuov iUftiim Mio»»s *fi(r nl <>9JGi»l)Jlir* on •! aTt/il .M.S&dXl 



eourt. In the •xerclse ol' its discretion, aheuld hare granted the 
■otion of defeudante lor a rehearing in the cause. 

For these reasons the Judpaent is reversed and the oause 
remanded. 

BSVBRSSD ASTD BSMAliDED. 

MeSurely, P. J., and O'Connor, J,, concur. 



38486 



THE PEOPLE OF THE STATE OF ILLIUOVS, 
£X RSL.» 3TEHLINQ OUAHEf^S & OTEES^ 
XRO*« a oorpor^tlon, et al,» 




P«titlonerSf 



THE OIROUIT OOUHT OF OOOK OOUUTY AMD 
BEMJAUIB ?. EPSTEIH, JUDOE OF THE 
CIRCUIT COTJRT OF OOOE OOUMTY, 

RiMpondeats* 




ORIQINAX. BILL 

FILED BY JPETITIOHlKltS 

FOR *RIT OF PROHIBIT imr 

IB APPELLATE OODRT 

OF ILLIKOIS 

FIRST DISTRICT, 



285I.A. 590 



V 



MR» JUSTICE HEBEL DELITIREO TWS OPIUIOH OF THE COURT. 

This oause is in this eourt upon an original petition filtd 

by the People of the State of IXXinoie on relotion of the sterling 

OXeaners & Djrers* Inc., a corporation, et al* againet the Ciroait 

Court of Cook County, and Benjaaln P. Epstein, Judge of the Circuit 

OouTt of the Circuit Court of Cook County, pr?)ying that a writ of 

prohibition issue ag&lnst the respondents. The petition filed herein, 

ftaong other things, alleges that on July 13, 1935, in the Circuit 

Court of Cook County there was entered a final decree entitled 

Cleaning and losing Plant Owners Association of Chicago, a oorpora- 

tlon, plaintiffs t* sterling Cleaners & Dyers, Inc., et al., 

defei»iant8, from which final decree it appears substantially that 

upon the answers being filed to the ooaplaint of the plaintiffs by 

the defendants, the cause having been referred to a Master in Chancery 

and upon the report of the Master and exceptions to the Master's 

report^ the court entered eertain specific findings and ordered as a 

part of its decree: 

• (3) That all parties hereto, both plaintiffs and defendants, 
and each of the«, and their officers, either in their indir- 
idual o<^paclty or acting for or on behalf of said corporation 
or any other corporation, their agents, attorneys, solicitors 
or employees, and all associations, firms or persons «!Ctlng 
In concert with, assisting or aiding, confeder«(ting or con- 
spiring with then or either of them, be tnd they and e^ch of 
them are hereby permanently Enjoined and Restrained of and from: 






T«t<OC STAaJi^^A gi 



0eS.A.l2 8S 






1 



(ill aoi^Xlaq Itmi-^J'xe ax>. aotits tnuet 9lMi ai bX •«JSfjiO eMT 

Jl**o;i .) aa^irl. ^at®fsql *% atamla^U Dub ^t^^suoO afooO to *ij;/oO 

t{»2:>i; i:.£lii Lioitii^ 9<1T .i^iisdJbiBOfiafti; 9ii^ ifttaiA^jB mjBtki aottiditiorq 

itniiQ 9tit nt ,6561 ,?! xlxrt* a© *.«ifif 898©XXi» ,»8«iri# leri^o sftasA 

,^si^i*ii9 sw-xooft Xisnit 5? ^tfttfia aew »x«tf* Y^jkwo^ afooO to JtcboO 

•'Stoqioo t) «ca^cld^ to aoxt^itiHftecA sfftsvO ittfiX^i s^i^xQ Jbod ^aXiSJStlO 

If ,.oflI ,3'r»x6 ^ irrraiyitltJ j^iliatB *r 8ttl*ai«X<j ,coi;f 

t»if^ tXX«i^n«^«i£/e aicsiKftl^ tJ: dtf^oaJ^ Xsait /foiifv amtl ,«tfl«Jba9ttJb 

^ ettltnlHlq «iid to fnlalqmo9 %it at bsin ssiocf •t$m%aa •tit iwqjtf 

»oft«ifO ai rcttse)^ ^ oi^ l>»TT*t»7 a»«<:f ^iv^d ofii/so 9if# ,8#iijiJbfist«J[k sjlt 

B*ffnjM *iit •f t£K>1^7*OKO t>nB t9iBtsM •dt to #«»q«T •!(# ffoqfir A>iu 

■ •« Ibfttolrxo bOA v^ibatt »ilio9qe jU«#<e«o JNne^xzo tuaioo 9dt ^itoq^r 

i«»to*jb B^i to ^s<q 
,eta3JMot9l> t«t ") " 

Ijiillo^- •iio«T»q t© »if' ^fteexoXcfce to 

~n<.', ff> n. ri-^'^tttoftT^OCv « t '.!i-i!' ^"160006 fli 

-in arcf » ; Iqe 



(a) Selling* offering for s?^le* r«Bd«rlng or offering 
to render at retail* eleaning and Dressing scrTloes below 
cost* Selling* offering for sale* rendering or offering to 
render at retell* cleaning and pressing serrloes* for menis 
and woaeB*8 garments @t a prloe less than serenty-flTe (75^) 
oents per garnent* for onsh and carry* and less than ninety 
(90#) oents per girment* called for and delivered. 

Selling* offering for sale* rendering or offering to 
render at wholesale* cleaning services for aen*s suits* 
unfinished* or as is coaaonly referred to in the trade as 
*x* work.* at less than fifty (50^ per cent of the oaeh 
and carry prloe as set forth herein* 

selling* offering for sale* rendering or offering to 
render at wholesale, cleaning and pressing* or as is 
eoomonly referred to in the trade as finished work* Ladles* 
dresses at less than sixty (60]^} per cent* of the retail 
oash a&d carry prloe as set forth herein* 

(b) Advertising in any publication* newspaper* 
periodical* by signs* on wagons* signs on windows* signs 

on trucks* throxi^ the radio* verbal aolioitntions* through 
the use of oiroulars* handbills* billboards* or froi oaklag 
known in any other atanner thet the cleaning and pressing 
serviees as above set forth in paragr&j^ (a) will be rendered 
at prices below those designated in said paragraph (a) hereof*" 

And also fros 

"(g) Engaging in the o^mspiraoy or ooatbination in 
the Gleaning business for tbe purpose or with the effeet 
of destroying* injxuring* or d^tsaglng the plaintiffs* or any 
or either of then by the doing of the acts herein restrained* 

(h) Singly* or collectively engaging in \infalr ooape- 
tition''or unfair trade practices in the cleaning and dyeing 
Industry in Cook County* as set forth in the paragraphs* * *,* 

It appears frMi the petition thnt there is pending in 
the Appellate Court of Illinois* for the First District* an appeal 
frea this decree entered by the Cireuit Oourt* and that together with 
the notice of appeal by the relators* Sterling Cleaners & Oyers* Inc.* 
et al* a 15*000 bond was approved by the court below and filed in the 
office of the Clerk of the Oiroiiit Oourt* with the fidelity and 
Casualty 3o* of Kew York as surety* 

It further appesTs from the petition thst after the approval 
and filing of the bond* the relators did* after July 19* 1935, continue 
to render cleaning and pressing servioe and advertise the easM at the 



/UtiaXH^ S*£13«£Q!S Las 

o* :• ' " ■ ' ■ " • ^ . : ' • " 

r 



o# 













iife; £>!«« iS. 









■-t 

ei[# . . .. .,^.. - - - . «-*w Imorf OC- 4. f-' ♦• 

taXiaoe ,6^ . .. < jaJLXil Am 



s 

aame prices they did prior to the entry of the deoree; that pureuant 
to a petition for rule to ahov o^ueef Edward A, rink^ one of the 
relators* was oa July 37, 1935j ?)djudged guilty of oontespt of 
oourt and senteaeed to the County Jail of Oook Oounty, for a period 
of sixty days; that on August 2, 1935, the Psaoook Cleaners and 
Dyers Ltd., a oorporstion, one of the relators, was adjudged guilty 
of oonteapt of court for riolating the injunotional order of the 
decree of July 15, 1935, and fined $5,000* From these orders appeals 
ars now pending in the Appellate Oourt for the first Distrlot. There 
were further petitions pending a^^ainst certain naaed relators for 
alleged Tiolation of the injunotional order entered on July 13, 19S5, 
and eontinued to SeptOKber 3, 1955, before ^^njamin P. Spstein, one 
of the J\2dges of the Circuit Court. It also appears that on August 
8, 1935, the plaintiffs in the original proceeding filed further 
petitions to hold £dward a« Fink, Peaooek Gleaners and Oyers, Ltd., 
a corporation, and soae fifty eaployees of the corporation in 
contempt for a riolation of amid injunctional order entered on July 
13, 1935, which proceeding was continued to Se^teatoer 3, 1935, by 
the respondent Senjasiln P« Ipstein, one of the Judges of the Gircuit 
Court of Cook County* The respondents filed an answer to the 
petition, and fron this answer it is apparent that the facts are 
aubstantially admitted as set forth in the petition of the rel«ttors, 
and the question involved in this proeeeding is whether under the 
facts la the record the respondents aust obey the Injunction provided 
for in the decree, where on appeal a supersedeae shall operate upon 
the filing of an appeal bond, as provided for by the Civil Praoties 
Act, Ch« HO 3ee« 83, Par* 310» as follows: 

■Aa appeal to the Appellate or Supreme Oourt shall operate 
as a supersedeas only if and when the appellant, after 
notice duly served, shall give »nd file a bond in a renson- 
:^ble aaount, to secure the adverse party* If the bond is 
given before the reoord is filed in the reviewing oourt, the 





tmmuviv ro«t> frf* ^ta» ©iff o# tdX^tf bil? ijexl* aooi^q muib 

OiAS lu »i«\ , ♦ «»6i»«ft v«<iFa o* «Ijy« tot /3roJt*Jl:J^»q s o* 

'/.'■ c;T»ttfaIO i»ooj»»^^{ »dL#- ,a«Si ,S #a8B^ oo *«tf* ;»1^ Y#xie lo 

n»iiT *t9JLi^%l(S jfeni". oo- s^Ali^iijA •«!* itl Bc^jUsfreq iron rt« 

T»t 8ta#i»i*rr fo^aisui lUiii^ttao cTwrifiVf? jgaiiw^ff »aGlfi^*ii tfttfJijul »t«w 

•too «jii;»^«^3< .^ flir , ?'»cfyb<^4«^ o;h &»»ald'm»o bmB 

Ytf « :'!»ani^a©© a^^w 3Sifc»«»ootq tfoi^ «(i£6X «CX 

•Tji It: u* ifl^tf t T«»raiiis aXtft iw»«l Sua «aoX#i;r*q 

««Y*#xIrr 9ai to iToititttq V «^^ «« l»e^#Xnf>a xXlBitOA^tifitni 

jM^ •^ff'Y^qc Ilin^ sB9teaT)»qif« 4 X««cr(jB oe 9t9d9 «»«ir»«i> td^ aX tot 

:imoii6i Rf> ,ox' . /.;« .©©e oxx .ifo ,#*a 

• tAT«|« ilMI&m fTim^^J "tmBtTnuf- vr'. .>. .;, (s^i.^ ct Jjl:9(^M OA* 

a2 tnotf »K* tl ., ^tauomA •l(f» 



amount and teraui thereof shall be fixed and the aeeurity 
approved hy the trial judge or hie suooessor in office, 
or nhere thle is impossible beoause of the absence froa 
the district, siokness or other disability of such judge 
then by any other judge of said ootirt, and the bond shall 
be fixed in said court* If the appeal is from m judgment 
or deoree for the recovery of money, the condition of the 
bond shall be for the prosecution of suoli appe?0. and the 
payment of the jisdgment, interest, dmsagaa and costs in 
ease the judgment is affirmed. In all other cases the 
condition shall be directed by the court with reference 
to the oharaoter of the judgment, order or decree appealed 
from, « 

It will not be neoessary for this oourt to determine 
wilt t her or not the trial court waa aap(»wered to consider the ques- 
tion of the violation of the injunction decreed by the court, or 
tha related quest iona presented by the parties to this action 9s to 
tha power of this oourt to issue a writ of prohibition against the 
respondents. This oourt has considered the original oase here on 
appeal entitled, gleaning and Dyeing Plant Owners Aaaociation of 
OhioagQ. a Oorporfttion. Plaintiffs (Appellees) v« Sterling Cleaners 
S^ Dyara Ino«. et al> Defendanta (ApDellants). Ho. 38486, 
liiiioh la the basis of thia prooeeding, and has reversed that case. 
Therefore tha subjeet matter relating to tha inatant oase is disposed 
of and it will not be necessary to consider the merits thereof, and 
this prooeeding is accordingly dismiasa^t 

SUIT 0I31CI83S0« 

HAU, P.J. AND QmiQ £# 30LL1YAII« J. OOMCUIW 






.n "i':;':'i , 



*fm. , «tATI,HD8 ^.Sr eZKS0 mtA *^,^ ..UAH 



38496 



./ 



// 



OLSIANINC: & DYEIKG PLANT 0WHER3 ...J- .f 
A8800IATIOK OF OlilOAGrO, a Gorj^' / 
oration not for profit, et al, "^ 

Plaintiffs (Appellees), 



▼. 



SDWAFB A. FIMK, and PSAOOOK OLiiiilHERS 
4k DYERS, LTD., a Gorporatioii, 

Dofendants (Appellants), 




APPEAL PROM 

OlROaiT COURT 

COOK COUNTT. 

2S5I.A. 590 



KR* JUSTieS HEBKL DBLIVSRED THE OPINIOS OF* THE COURT, 

This appeal is in t hie eourt from an order of the 
Circuit Go\ixt of Cook County entered on July 26, 1935, finding 
the respondent Rdwsrd A, fixxHc guilty of oontempt of court for 
▼lolation of the decree of the Circuit Oourt of O«itok County 
entered on July 13, 1935, There is bIbo a like appeal by the 
respondent Peacock Cleaners & Dyers, Ltd., a corporation, from 
a like order entered on luguet 2, 1935, finding this respondent 
guilty of contempt for violation of the decree entered by the 
court on July 13, 1935. Upon an order entered in the Appellate 
Court of Illinois, First District, these appeals were con- 
solidated for hearing. 

The court entered a final decree on July 13, 1935 in 
the cause then pending, wherein all parties to said proceeding, 
both plaintiffs and defendants, were permanently enjoined and 
restrained, among other things, from seling, offering for &tl%, 
rendering or offering to render at retr^il clepning and preeeing 
for men's and women* e garments at less than 75 cents per garment 
fdr oash ^nd carry, and less than 90 cents per garment called for 
and delivered, and from selling, offering for sale, rendering 



8€i»ae 






^ 



, (3»®IX©qqA) ellltnif^X? 









Si^ 



06 G .A.I G i^ • 



a4* "io isftno is^ aaoxl tx'rco airft fil ai I^scfqr*? bMT 

»;^aXI6qoA srfd- ai I>sTP*fle leJbio nJB ; oqU ,3S6X ,SX ^XcrL no *ai;oo 
-xioo ^^X'^sqgs ef?»xfd' ^foilfnin l-ntx^f ^KjioaiXXX 1« Ji^oO 

ai 25QX jSX yXuL no ss-io?;'- ^ ■'» -^ •- *- ^.j; 

"iGft Tol §3J:t-'Mo ,.ijaX X99 ao-' '" - -^- ;aot&M ^b%aliit&»er 

»--5«TG ba«= ^xn-^BXo XX -:f - mi^llo 10 saXTt»6a»rt 



■\ 



or offering for sale at wiiolesale cleaning servioes for men's 
suite, unfinished, or ae eommonly referred to in the trade as 
"x" work, at lees than 50 per cent of the cash and carry price, 
and of ladies* dresaeR at lees than 60 pax cent of the retail 
cash and carry price, as provided in said decree, and further 
restraining them from adrertising in any form that they would 
render cleanin>;i and presping service at prices below those 
designated in the decree. 

The respondent Peacock Cleaners & Oyere, Ltd., together 
vith the other defendants named, appealed from the decree and 
perfected an appeal to this court, as provided for by law, by 
presenting their supersedeas bond in the penal sum of $5,000 with 
3tB surety, which was filed and approved in the 'Circuit Court 
of 8ook County, Illinois* 

The respondent FJdward A, Fink was not named as a party 
to the original cause, nor named in the decree entered on 
July 13, 1935, although he was and is the president of Peacock 
Cleaners & ^yers, Ltd., one of the defendants. 

During the pendency of the appeal in this court, as 
above stated, the plaintiffs in the cause did on July 24, 1935, 
file a petition as amended upon notice for a rule upon the res- 
pondent b to show cause why the r- epondente should not be held In 
contempt of the Circuit Court of ^ook County for an alleged 
violatioa of the decretal order entered on July 13, 1935, In 
rendering cleaning and preeslng service of men's and women's 
garments below the prices set forth in said decretal order and to 
advertising their said services and prices in manner allegedly 
contrary to the provisions of said decree. 



a "flea lol asoivisa ,d(axjBJ8«Xo ftlJsasXofiw Ab ©Is xol '■■ax o 

list 08 n^ji 5)-.t»,&x,& 'aeJtfe' 

s^^oAi wolecf aaoiiq 

rf*lw 



lisjijia*":;. 



■i^i« ,esex ,51 tJ^i 



—8 ST f rf* rro^ f .i ■;!■ 

{■-'ageXXA n» %ot \ ....:. 

al ,a€8X /JX xXi/'^ oltaXoiv 

■ •ae«o?r /jao ■; 'uyt:^ _ ^,., ,, ..: ^.,_„ ^ ,^: ^i^x&ba9X 



i 

PiMPsuant to this notice certain of the respondents pre- 
sented tlieir separate petitions f©r a change of venue from one of 
the Judgee of Cook County then presiding, on the ground of preju- 
dice of the said Judge against the respondent Peacock Cleaners 
A Dyers, Ltd, The Court denied the allowence of a change of 
▼enue upon the ground that two changes of venue were granted 
In the original proceeding. The respondents thereafter filed 
their several answers, wherein they denied they were guilty of 
contempt of court, ag charged in the amended petition filed 
by the plaintiffs, and the court heard no evidence upon the 
issues and disposed of the charge of contempt upon the plead- 
ings, and entered an order finding tie respondent Sdward A. 
Fink guilty of contempt of court and committed him to the 
County Jail of ^ook Co^mty for a period of 60 days, and the 
respondent, Peacock Cleaners & layers, Ltd., guilty of contempt 
of court, and fined this respondent #3,000, to be paid to the 
Clerk of the Court, and that execution iesiie forthwith. 

Several questions are presented by the resoonclents, 
9ae of which is that the def ndante have appeal,ed from the 
decree entered in the origipal cause and by the filing of an 
appeal bond, approved by the trial court, the Bame operates aa 
a supersedeas, a«td the court in the instant case was without 
jurisdiction to enforce the final decree during the pendency 
of the appeal in this court from the original decree. 

The pl0intiffs* answer to this contentioi' is that the 
order approving the bond did not make the notice of appeal 
given by the defendants a supersedeas. On the question of 
appeal the law controlling is provided for in Ch. 110, 3ec,82 
of the Civil Praetice Aot, 111, ^tate Bar 3tats. 1935, as 



s 

lo x*«^ii''^ et0«f ^6rft b&laab x®^^ at&reA^ ^nx^^sas Iei9v«a xi^di 

®dt rn>cro ^n.-Tsfeivs cfl bimd ttuoo ©.; , I<5Xq ad* X^ 

•B,*?*!: tqastfaoo Iko asTJRrfo ©rfi- lo 6seo<{ai& fcxia aexrsal 

Qdi Ot r;:.' i:wmo?> ^' •- . ;-:rs£s:tfioo lo \;t.ri'rj iai''* 

8r ' .i&/»*(|f vtaBba 't9b &tit t^rf* ai dojfl^'? lo »ao 

«» "io ^iilil 9tii x^ ^a* aei/BO Xisxiigii:© aril- ni boiad-jia aoTcoefc 
8£ 8«*.siogo eft6« 9d^ ,crx oo Xfii^r 9di ^d oi-'VOxqqK^JbflOCf iBaqqji 
^ijod;l'iw Bern ^eso taaiBiii 9di nt iiiy oos fSAtfteateqaAi « 

xonedneq »ift vjiri^mft so^ioat XjBnil »rf* aorto'tno Qt .olifoifcalij^j; 
.98rtos,6 Xcx.: iU MOt't i-xtroo aiisfi' oi i8«<i;qj3 ttilJ xo 

X^eqqji It* ooiitox' arfj- aaffiw !i<:>a bkh &irocf arf* ^Xvo'^^n T»4i)to 
to iioi^8fi<9p ad;f aO .tjfielbaatQiiQptrai n a^«b4r#l;a# ojfif ^, . 



follows: 

"An appeal to the Appellate or Supreae Court shell 
operate as a eupereedeae only if and v:h«n the appel- 
lant, after notioe duly served, shall give and file 
a bond, In a reasonable amount, to secure the adverse 
party. If the b nd is given before the record is 
filed in the reviewing oo|irt| the amount and terms 
thereof shall be filed and the security approved by 
the trial judge or his sueceseor in office, ♦ • • 
If the appeal is from a judgment or decree for the 
recovery of aoney, the condition of the bond simll 
be for the proeesutlOB of midb. appeal and the pay 
aent of the ju%ment, interest, damages and octets 
in ease the judgment is affirmed. In all other oases 
the ©onditio:^ shall be directed by the court with 
reference to the character of the jucl ment, order 
or decree appealed from. If notice of appeal is 
served within twenty (30) days after the entry of 
the order, determination, decision, judgment or de- 
cree complained of, and if bond is given and filed 
within thirty (30) days efter such entry, or within 
euoh further extended time as the trial court may 
allow within euoh thirty (30) days, the notioe of 
appeal shall, upon the approval of the bond, operate 
as a aupereeaeas. ^fter the expiration of such thirty 
(30) days, no appeal shall operate as a super gedeas 
txoept upon express order of the reviewing court •" 

In the diecuSBioB of this question the co\irt will 
consider the various provisions of the Civil Practice Act in 
arriving at the intention of the leeislature in the passage 
Of this act. From section 82 it is clear that the giving of 
notioe of appeal and the approval by the court of the appeal 
bond operates as a wupereedeae, provided they are filed within 
the time limited by the act, that is within 30 dr?y8 after the 
entry of the judgment, order or decree. However, the si^Aite 
provides that alter the expiratio: of the 30 days no appeal 
shall operate as a supersedeas, except upon order of the 
reviewing court. The language oi the act is clear. This view 
is supported by Par. 1 of ^^ec, 76, which we find further pro- 
vides that where ah appeal is perfected or a.lowed more thaa 
30 days after the entry of an order, the reversal or modifi- 






qo 



9e 



* ♦ * ,*^ 


■ 


09820 -ibiUij jLI.- Ill 

ifi'i^ tl'f'T* Off '' 



















sir*"*- 



Tf^t' 



ni 3^0/\ eoX&p&'x^ XivJtO arit lo aaexsivoiq suoXxssf 9dt «»bianoo 

io asi:'*'-*? edi &Mt TBslo <?i ^x S8 iioitosa mo-x"? ,*o,s aJtrfl lo 
X«©efCiJ& oii* lo d"ri;o® ad* Y«f X.Js'iro'KjG « *fft >&ii6 Xa«<^c[i!5 Ito 9^itoB 

XasQ-qs Oft %\Rb jttsstlcpia ojl* ^^^le ^Tsilif 9d£»ivoicq 

waiT tXif'' . aeX ©rfT •t'xi/oo SiSiweivsi: 

JMMft tToifi ftswoXJ^ no l>o*o©l v©(jqjE it@ ©ismIw ^firf* saMv 

-m!>«a 10 X.6aT»v Tj^® 0rfj T©nr a^fifc OC 



5 

oatlon of the order shall not affect certain acquired rights 

as therein set forth and would Indicate tJist it was the inten- 
tion of the legislature thst where the bond which is to act ae 
a super sedeae is filed within 30 days it shall affect all 
parties and pereone not parties to suoh action, and stay all 
rights and proceedings under the judgment or decree appealed 
from. 

Zt is well to have in mind in this connection, in con- 
struing this act, that Par, 261, Sec. 114 of the Civil Practice 
Aot, being Rule 37 of the schedxile of rules of Court, provides 
for the method and manner of applying for a bond in a review 
court. Bubdiviaion (4) thereof sets forth the form of the 
certificate to be endorsed upon the notice of appeal by the 
elerlc of tlie reviewing court, and provides that said notice 
of appeal is xnacie a supersedes b and •♦is to operate as a 
suspension of the execution (judgment or decree) and as sueh 
le to be obeyed by all concerned." Froaa this provision It 
1« olear the legislatxire intended that when an appeal is per- 
fected by the filing and approval of an appeal bond operating 
as a supersedeas, whether in the trial court or upon leave in 
the reviewing court, such supersedeas shall operate as a sus- 
pension of the execution of the judgment or decree. 

In Haley v. w alter 141 B. W. Rep. 166, wherein a 

perpetual injunction granted upon a final heaxinfe of the 

aerite was stayed by a supersedeas b d on appefl under the 

terms provided for by the statute, the Court of Civil Appeale 

of Texas, 1911, in passing upon the issues Involved, said: 

"It Is this particular r asoning th?t brings ue 
to the result we arrive at in this c^-se. In other vords, 
thtt statute has said in so many words that on an appeal 



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jti 9?{3»X «to«r£r %o tixi-oti. Isii4 9tl^ Hi .MmiBim (»««.b9a7«ipra & sts 

-»*f« « are »:?*x«q© 1£^B 8i»»^««"5»Qtfs il©x/s 4*t£;oo Sjerxw^Xvat ©^* 

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from a final he«rin£=, the giving of a supersedeae bond shEll 
euspend the ;judginent. It is not, to our minds, a question 
of whether it is a politic rule of law, or whether to hold 
that the judgment ws not suspended BJiti:ht be more effect ivt 
in some cases, but simply n question of what is the law. 

The caae at bsr was a. final he' ring on the merits; it 
was regiaerly appealed, w th a supersedeas bond; that 
;Judgment granted the relator a aiandatory in;}unotion «nd, to 
some extent, a prohibitive in-junction; and, tith the 
statute plainly providing that on an appesl from a final 
hearing on the merits the judi^ment shall be cueoended, we 
are unable to do anything but hold that the judgment is 
suspended. 

It follows thst if relator's jud^iment, granting him an 
injunction, is suspended pending respondent's s-rrjeal, the 
injunction ie stayed; therefore the respondent' s failure to 
comply with the orders contained in the judgment and by the 
injunction was not violative ther of, because the same was 
stayed pending his appeal." 

It ie evident in the instant case that the decretal order 

is mandatory in character, and the final decree so st5teB, In 

the discussion of the language of the decretal order entered in 

the inatant ease we reached thie conolusion upon this a peal: 

fbat the language used by the court was mandatory in character, 

although prohibitory in form. The eame language is used in the 

final decree as w&s used in the order granting the plaiat iff s in 

this oasjB a temporary injunction, and in considering this subject 

upon an appeal in the case of Gleaning and Dyeing Plant Owners 

Assn . V, Sterling: Cleaners and Dyers^ Inc .. 278 111. i^pp. 70, 

this court aaid: 

"When we ooneider the order in the instant case, 
the court directf? the defendontg to desiet from selling 
©r rendering olenin;, and dyeing service for less than the 
price epecified in the order, or in other words, in order 
to render service, the defendants nre obliged to sell their 
service at the prices provided for in the ordei^. The effect 
of thie injunction order is mandatory in character. The rule 
is that ceutlon should be exercised in the issuance of a man- 
datory injunction baeed uoon the sworn bill of compl int 
alone. The plaintiff must make out a clear case, free from 
doubt or dispute, as a basis for its isruance. here, -is 
in the inst^mt case, complete relief may be afforded the 
complainant upon a final hearing, upon the facts stated in 






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the bill, the plrintiffp are not entitled to a 

temporary injunction which in (Bandstory in character. 

♦ ♦ ♦ 

What we have said in regard to the mandatory character 
of the order entered by the court in fixing the prices 
for cleaning and dyeing services that appear in the 
temporary injunction ?!pplies with eauel force to the 
paragraph contained in the ssme order that prohibits the 
defendants from the use of advertising medluas in an 
effort to sell the eervice at 'Drioes other than set forth 
in the injunctional order." 

It has been held in Barnes v, Tyoogxap^iioal Union , 

238 111. 402, th.'t If an injunction is m-ndstory, the takix^ 

of an appeal, which operates s s supersedeas, precludes the 

trial court from entering any further orders in execution of 

the decree until the appeal is dispose' of. The court 

said: 

"There are juf^iments and decrees which require some- 
thing to be done for their enforcement and there are 
others which are simply prohibitory or self-executing, 
and others p:r talcing of the nsiture of both, a pro- 
hibitory decree which does not require ?.-,ny things; to be 
done is eelf-executing. It requires no process, but 
by force of the decree itself the party is bound to 
desist from the prohibited act. If an injunction is of 
a mandatory character, requiring: soffiething to be done, 
or if negative in terms but %ith the 8-",me effect, a 
proceeding for contempt in refusing to obey it is in the 
nature of an execution to enforce the comraand. '^^n injunc- 
tion the effect of which is to suthorize one party to 
take poaseasioii of property or to do some act, -.Ithough 
it may be negative in form as ag? inst tbe other party and 
merely commtmdis the latter not to obstruct the former in 
taking possesai n of the property or doing the act, is 
in reiity affirmative in its n' tare, and a proceeding for 
contempt would b^.ve for its object to accompli- h the doin^' 
of the act. An apnea! would st?y any such proceeding, 
while it would have no such effect with respect to the 
poster of the court to compel obedience to a salf- 



ezecuting decree 



n 



"3© from this authority it is apparent thrt here an 
appeal from a decree is perfected from which an injunction was 
granted providing for a mandatory direction to the parties 
affected to comply with the injunction, further proceedings are 

stayed until the matter on appeal is disposed of by the 
appeals court. As we have already indicated, the order of hs 



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oourt in its decree enjoining the defendants from selling 
their service at a price less than the aaount fixed in the 
deeree ia mandatory in oharacter bat negative in form. In 
other words, the defendants are required to charge for their 
services the aaotint fixed in the decree and are prohibited 
from transacting their businese in aocordanoe « ith their 
plan and method lierstofore followed. Therefore, we believe 
the opinion above qxioted is applicable to the matter before 
us herd on appeal. 

Another material fact i% the record in the instant 
ease does not disilose the nlaintiffs suffered any daaiage 
or injury as the result of the acts of eontempt oomplained of 
by thea* 

In the case of Rothschild & Co . v. Boston 3 tore of 

(ShioagQ . 219 Ill« App. 419, w nioh was an appeal to this oourt 

from an order granting an Injunction, we said in discussing 

the question involved: 

"We understand it to be the law that in a proceeding to 
punish, a party for the breach of an injunction, the 
party complaining must not only show a breach, but he 
must also show that he has in some way been injured thereby? 
Citing People v. Djedrioh. 141 111. 665, 

the reason for this riile is stated in the ease of 

Pgple V, Diedrich. 141 111. 685, a^^ follows: 

"Prosecutions for contempt are of two kinds, ^'hen 
instituted for the purpose of pxinishing a person for 
misconduct in the presence of the oourt, or with 
respect to its authority or dignity, it is criminal 
in ite nature, »hea put upon foot for the purpose of 
affording relief between parties to a cause in ch ncery 
it is civil - sometimes called remedial. Numerous au- 
thorities could be cited in support of this distinction, 
but the decisions of this cmrt le^ve no doubt on the 
subject, (crook et al. v. The People, 16 111. 534; 
Buck V. Buck, 60 id, 105; Leopold v. The People, 
140 id. 553.)" 



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9 

Accordingly, the contempt charge on appiicption of the 

plaintiffs Is remedial In character, that la, Instituted for the 
purpose of compelling obedience to the in^unctloii, and of afford- 
ing relief as prayed for by the plaintiffs, and an appeal will 
lie from t]^ order of the court, either In laposing a fine or In 
diteharglng tho defendants* 

From the record as we find It, we are of the orilnlon 
that the appeal of the defendants now in this court was oerfected 
In the mode provided for by the Civil Practice .4ot, herein referred 
to, and that the court In Imposing punishment for the alleged con- 
tempt was without poiser to do so, for w^nt of proof that the plain- 
tiffs suffered damag , Thersfore^the order entered by the oou t 
Is erroneous, and for that reason Is reversed. 



ORDER REVaiRSSD, 



HALL, P. J. AKD 

D£NIS E. SULLIVAN, J, COI^^CUR, 



«yla- iuk '18.1) &dt gai:;!^Tr^£[0ali> 









38497 

OIiEAMIKG & DYEING PL .MT OWKKRS 
ASSOCIATIOH OF OHIO AGO, a 
Corporation not for profit, et al, 

Plaintiffs ('Appellees), 



K0WARD 4. FINK and P& COCK 0I.KARER3 
& DTKRS, i4TD,, a Corporation, 

Defendants (Appellants), 



7 



^ 



/ 



APPEAL FROM 

OIROUIT COURT 
OOOK C GUSTY. 

j28 5 I.A. 5 90 



MR, JUBTICE HKBSL QSLIVEMD THS OPIKIO O^-* THE COURT. 

The appeal in this oaee, wherein the respondent 
Peacock Cleaners A %ers, Ltd, was foimd guilty of oontempt 
of Court in violating the decree entered on July 13, 1935, 
was consolidated vlth oaee Ko. 38496 for hearing, and tho 
opinion filed in that case is oontrolliia^ upon the facts 
and the law in the instant case. Therefore the order finding 
this respondent guilty of contempt of court and asseeElng a 
fine of |3,000 for suoh violatiou is reversed, 

ORDER REVEIiSED. 



HALL, P. J, AHS 

DKKI8 S;. 3ULLIVAH, J, OOKOUR, 



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38916 

PiiOYIDE£iI MUTUAL LIJi lUSJiiJ^GR 
COMPANY OP PHILADiiLPlilA, a 
Corporation, et al., ) 

Appellees, ) 

IBTEKLOCUTORTf APPJaL SROU 




WILTON B. MARTIK . ) ^ ^ -« l' 

Appellant. ) _. — « fT «i 1 1 



) SUPiSRiOR COUBT OF COOK COUiiTY. 

28 5 1^.591^ 



MR, JUSTICE teATCHETT DKLIVEKSD THE OPIlvlOif Oi* THE COURT, 

Plaintiffs filed their bill of complaint February 3, 1934, 
praying the foreclosure of a trust deed executed iJ-oveiriber 18, 1927, 
to secure an Indebtedness in the sum of #76,000, represented by a 
note for that amount and of that date, drawing interest at the rate 
of five and one-half per cent per annum. The interest was repre- 
sented by coupons falling due upon the dates upon which Interest 
would become due and payable* 

The bill alleged defaults in the payment of an interest 
coupon for $2090, due October 15, 1933, and of taxes for the years 
1923 to 1931, inclusive, amounting to #29,475,59, which plaintiffs 
paid in order to protect their lien under the trust deed. The bill 
also alleged that plaintiffs, by reason of these defaults, elected 
to deolare the whole indebtedness due and pe^able; tnat in and by 
the deed the mortgager consented that in case of the filing of a 
bill to foreclose, a receiver might be appointed with the usual 
powers; that the premises were improved with a six- apartment bricJk 
building, half vacant, and that the premises were not worth more 
than #75,000, axii were therefore scant and meager security lor the 
indebtedness, and for this reason a receiver should be appointed at 
once in order that the income derived from the property might be 
applied to accruing taxes and needed repairs; that the conveyance 
covered all rents, issues and profits whleh should at any time ac- 
crue from the premises. 



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.THUOD SKT '•10 HOIUTO SHI' fI?UIS:VlJ*^a nV'CJ-OTA.;a aOITfcUT. «H1 

, ':^ex ,BX teommvo'A bsiua^x^ ^ xo jauij jb 'to siw90Lo©T:o't ©xij j5«i7;«lQ 
a ^oT fe*^fi«as-ic!>'j ,000»&Vt 'to mJ9 sisi ni osaab»;}'cfef>ai: as oixmes o* 

,9ldB\&q ham 9ub sae^^ &X«ov 
*«9i3*ni a£ to ^a9tfix;j8q «xi^ ni etXjujs'lsh Jv»35>XXj6 iXirf efi'i' 
ai«»x ®^* lo't 89X2;.^ 'to bm. ,CS$X ,ai ifl^tfo;**© «irft ,0«JOSi^ ^o't a^quoe 
mVtttnlsLq riolriw , ea .ff'TIk^ GS$ o* liaUnonmu ,©vi0ttl3ni .X'^.eX o* 8SeX 

fcd*o«X9 ,a*Xufi't©b ©eoac^ lu noBBei >^d ^9'^'tliai£iLq izsii bsasXXjs obXb 

Xrf to* ai iMiii ;oXcf«^q has auJb a89rtfe«*fl»l^ajfc «I©rfw ©f«.t ©•Xiilosb oi 

M lo anxXl't 9£li to s««o ai ;J«ri* b&itn«anoo 19 »-%$to!!i »rli bwsA •xl* 

•treat iliiow d-on •i»w 8»«i:ia»i<i »xW ^ariJ- biw ,*a»OAV 'tXari .anifeXiucf 
•iU 7o't x^-^'^^o®^ -xd^Mea Ao^ ^000* •-xo'ls^diiit «'xsw ba^s ,0OO,€Tt ss&di 

•tf ^if;fti» ^^-X9qo-xq sxU aHoi't tsritsfc •aoofil •di imtlt ^obxo ni eoao 

moaMX,»rno9 9di ittdi jailjaqei 6«Jb»aa bne, ••xg^ gaii/icoo* oct bslXqqa 

-o« •«i;t X*'* ** JbXiaoxUi AQliXw miilsfiq. bOM ■•i/asl .a^asi XX« boioToo 

taaeXoaiq •dt OLOt'i atrxs 



On PeTaruarx 23, 1934, Wilton B, kartin, the mortgagor, 
filed an answer, admitting the Indebtedness, the execution of the 
deed and the defaults, but denying that the premises are worth not 
more than |75,UUO; on the contrary are in faet worth at least 
1200,000; that the apartment building is exeeptionally fine with 
large apartments, each of wnlch occupies the whole floor and eaeh 
equipped with an electric refrigerator, exceptionally large and 
commodious, operated from a central system; that a Tacuum cleaning 
system and passenger and service elevators are provided; that tlier* 
is an inter-apartKwjnt telephone sj-^stem and fine white metal enclos- 
ures for bathroom showers; that the hardware is of solid bronze, 
and the floors of quarter-cut oak, wr.d the dining, library and 
living rooms are wood-paneled; that ther^ are individual laundries, 
stoves, wood-burning fireplaces equipped with gas lighters, etc.; 
that the building is of re-enforced concrete, a construction not 
subjeet to depreciation, on a corner lot 50 x 107 feet, and con- 
sists of ftight stories, with baasiuent containinti a large lobby re- 
ception room, a ball room and janitor's quarters; that the roperty 
is sltuated'on the south side of East Walton place at the corner 
of Seneca street and is almost directly aoross the street from tht 
Drake hotel and surrounded by highclass residences in great demand; 
that it is a part of the "Gold Coast" of Chicago; that defendant 
purchased the land about 1917 and paid therefor #60,000, and erected 
and equipped the building at a cost of about $350,000; that the 
property is therefore ample security. 

The bill and the answer were duly verified, 

March 24, 1936, on motion of plaintiffs, the court, after 
hearing evidence, aopointed a receiver, and from that ordet defend- 
ant has perfected this appeal. 

The hearing was continued from time to time, and upon the 
suggestion of the court and without objection from defendant, an 



ton il*to?^ .<?x» Bdalm»t<^ ' ' -^il* ^ni'^ntB Jetf ,a;Mi;al9fc »jbj "cw i>a9l> 
ii»«ft baa lool'l ■• ■ ;.i '" '^'o iioMB ,<Ba-a'?-.i;x.::o:jp ^?an«i 

-aoo fcrm ,i?i9'l VOX X 'Da *«^ it(»frj[«» & «o ,noit«ie»'tq«& o4^ *a*C.<f«9 

inaba9t9b iAHi ,-o»aox:*u to "^•••O feXe-U* tri^ 'Jto ;^it*;(. x *«xii 

bajToaTft b'l lo'taisxx^ bX^^a boa VX@X ^0o«r« ftasX 9x1^ iD»m«ilstxu% 

xett*^ .ttuou fMit ^sTtli^aXjiXq lo txt^tiom no ,d€«X ^,^ noi»M 



appraisal of th« premises rrtk* obtained from the Chicago Real Estatt 
board. Ihla appraieal, made by a eo'ranitteft of fire members of th« 
boarr!, wae received in evi'^ence, defendant objecting, however, that 
the appraisal wae not made on the proper basis. It was conceded 
that the total indebtednesfs due plaintiffs at the date of the hear- 
ing wae 1132,231,68. 'Xhe coi'imittee fixed the fair market valut 
of the property aa of May 5, 19 36, at #61,650,00, 

Mr, Albert W. Swayne, a former president of the Real "Setatt 
boarj, testified for defeiidfints that he had prepared an appraisal 
in aooordanoe with the system used by the United States govermnent 
in connection with its Horns Loan appraisals; that he established 
a value based on repro-luctlve cost, less depreciation for the lift 
of the property, !Ihere were two other typeo of appraiaala, he 
!3aid, one made on the basis of capitalizing the average net annual 
income of the property over a period of the last ten years, ani ths 
other based on the capitalization of the net income of the property 
as at present operated. He estimated the reproduction cost of the 
building at present at #389,000 and deducted therefrom 40^ for de- 
preciation ," (the building having been constructed in 1916 or 1917) 
and gave an estimated net value of $868,330, including |35,000 for 
the ground value, The assessed value of the ground at the present 
time and also the blue book value as published, he said, wae $35,000. 
He had received from the mortgagor, Mr. Martin, a stateiaent of in- 
come of the property, which showed the net annual in come lor a 
period from 1925 to 1933 to be $22,708, He f^stimated the operating 
expense of the property at $12,000 a yeaur, including the taxes. 
Mr, Swayae further testified that tl-xe actual income under the 
leases then existing for the year beginning October 1st and ending 
the next October was $14,860; that deducting $12,000 gave a net of 
#2,850, which, capitalized on a basis of five per cent, gave a 
valuo for the building of #57,000, and with $35,000 added for 



^^evc;^ at-*^^' i>'%riaU •Af ^tf ft««il «»#«tB »<f^ rvrtir »»aaA%ot}9« ai 

i^uujxs. ^ din 3^aisXji«dl<l«o l« nJ^aaif »£Ui no 9/^iis »aq , timet 

lei 10 difiX :it fe»^9m#iaii8fi a»«<f ^xir^ji ajiIJ;Xii(^ 9^} ,acitslo«iA 

000. set «AV ^osjf>G 9;i ,^r7 oyijav i^f^il i^uMd •jU ooX« lioe 9mli 

• -xol Mioft.ii X n aitt /^e^re ^ ''WO 

.••z«id Si - '-^ i>« i:>Ti»cotq •xii^ 'to OBneqx* 



ground value, made a total ralu&tion i'roiu its then earning ov«r 
©f $92,000. Averaging three appraisala of ^254,880 ior reproduc- 
tion value, ^235,000 for its average annual incoEt over ti.e paat 
ten years, and ^9 2,000 I'or its value bscsed on Ita present earning 
power, gives a mean valuation ol* |198,960. kr. Swayns also salC 
that he had talked with one of the Real Estate l>oard appraisers, 
who fixed the fair market value at |61,000. fie said this appraiser 
proceeded on the theory that the ten-room aqpartiuents were a tiling 
of the paat in Chicago, that people had ^oce froib the ten-ro(Mi te 
the five-room apartments, and that taere was no future maritet for 
ten-room apartiiients. Asked what ne would say about tuis theory, 
Mr, Swayne replied it was a matter of opinion pure and simple; 
that he did not think there was any Justification for it; that he 
had h'^^en operating and relating a number of buildings and knew that 
a ten or twelve-room apartment had not eommanded any nigher rentals 
than the four, five and six-room apartmexits; that this building wa« 
one of the finest constructeA in that section of the city; that it 
had Bedford atone facing, vitreous enamel pliimbing fixtures throu£^- 
oat, used in the very finest and most expensive buildings, high- 
class nickel trimming, higher ceilings than the ordinary ones, and 
a sort of mahogany woodwork. He would say that it was the most 
expensive building per cubic foot of contents in the district. 
Thta witness also stressed the opinion that the rentals of the 
building would go up from ^20,01^ to #25,000 during the next few 
years, based on the normal increase of the rents, but he did not 
expect to see this type of apartmoit building get back to the 
point they ^/ere at one time; that an insurance canipany would, he 
thought, lend #100,000 on the property, with prepayments of #2,000 
a yearp 

Walter Salmon, who has been in the real estate and mortgagt 
loan business for thirty years, said that the rentals of ten-room 






5auota 



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apatrtiftent* ^rere Increaaing, an.l tiiut tiiese apj»jt/rent« were rery 
desirable. Mr, But2x«riord» eULso in tne reaX estate businees, aaid 
he anticipated a tea per cent increase in rents during the next 
rental season, and that he estimated the fair oaeh market value of 
the property to be iTom |165,000 to *200,000. Mr. Greenlee testi- 
fied that in February, 19 33, there was a twenty-lour oer cent 
▼acancy in that district, in 1934, a twelve per cent vacancy and 
in 1935 a ten p«x cent vacancy; that rents were at the lowest ehfe 
in 1933, and that there has since boen a gradual rise; that the 
rents, where leases expired May l, 1936, were being raised ten 
^er eoit, and that the property here in controversy should bring 
in the ©pen market under fair conditions $200,000. 

Mr. 01 sen, an arehiteet who had been an appraiser for 
twenty-five years and who owned aaartra^it buildings, estimated the 
reasonable value of the premises to be $19 5,000. He testified he 
arrived at his valuation based on the replaoement cost and did not 
think it waa fair to use present rentals in establishing value. 

Mr. Martin, defendant, testified he paid #40,000 for the 
land and #3f>0,000 for the building; that thex-e were sixty rooiBS, 
also a Janitor's apartment, a ballroom and extra service rooms. 

Mr, Springer, a witness for plaiiitiffs, said that he had 
been in the real estate mortgage "cusiness for forty years arjd con- 
nected with insurance and trust companies; that ne knew the property 
in question; that its reproduction cost, less depreciation, was 
♦109,533, find with the land the value was $136,283; that its 
•conomie va7.ue was not over #75,000; tJiat he valued the land alone 
at $36,000. 

Statetients of rents and operating expenses from 19^2 te 
19 35 were received in evidence, showing the hif^'hest rental to be ia 
1924, which was $35,821, the lowest in 1933, |8,944, and also 
showing the rental in 1934 amounted to $9,126, in 1935, $12,385, 









o't-vin 



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■i'•iJ^^ i\J .':'; 



JJ.J.; j.-is'i Jiitt-;*^ ; 



:1 J-! iK.'. Vt.i'-' I 



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the operating expense* lor 1954, |6610,26 and In 1935, ^5843,23, 
The court gave careful consideration to tnia matter* The taxes 
were in arrears for siany years. 

Defendant cite* Jtf'ranic v, aiegal ^ 263 111, ^p. 316, which 
holds that no tvitJti standing proTisione in the trust deed as to the 
appointmerit of a receiver, the burden of proof is upon cowpltdnant 
to show that the security is scant atid meager in order to juetify 
SkQ appointment ty th- chancellor. We think piaiutiffs nere com- 
plied with this rule as to the burden of proof. At any rate, 
under the conf listing evidence the opinion of the chancellor is 
entitled to great vreight, and the question for decision here is 
whether the appointsient constituted an abuse of discretion. We 
hold it did not. It is apparent, we tliink, fros) all the evidence 
that, considered from the standpoint of permaneuoy, the orijiinal 
Investment was unwise. The true test of value in a case of this 
kind is the fair oash maricet value of the premises. Applying that 
test, we think the security for the indebtedness is iz^eager, 
scant and inadequate, and that the court did not abuse its discre- 
tion in appointing a receiver, 

Xhe order of txie trial court is affirmed, 

McSurely, P. J,, and O'Connor, J., concur. 



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38099 



PSOPLB Oy TWi STATii OF ILLIHOIS 
•X reX. LILLA H« v/ALTliF , 
(jPetltioacJr) Appellee t 



v» 



MABTIH DURKIS, Director of feha 
2)epartaeiit of La1»or of the State 
•f Illiaol&» et al*> 

{Defendants) Appellants* 




APP^SAL yRCai SITPJa^ lOR 
COUPT OF COOK COUHTY. 



285I.Ae 591 



,1 



MB* majaiPIirS J^SIICE SCAJJLAir MLirFJRlD TBS OPINIOH Oi* THE COUBT# 



On Pebruarj S« X9'M, Lilla H. alter filed Iter petition 
for mandwRUSy seeking to be reinstated in the position of Super- 
intendent of Tree KaployiQent* Biyision of Tree 13Biplo3raent» 
Bepartment of Lahor of the ^'litate of Illinois. The petitioner 
also prays that the defendants be eonzaandw) to pay to her the 
ealary appropriated for the position. The Attorney General 
filed a general and special demuirrer to the petition on behalf 
of the defendants. Both were OTerruled and defendnnte electing 
to etand by the deanurrerst Judgment was entered that the writ of 
mandaioae ieeue as prayed in the petition. Defendants hare ftppealod 
and are asking that the judgment be reversed nith direotions to tbtt 
trial court to nuatain their dejamrrers and disniss the petition* 

The petition alleges > in sub&tanoe* that on Beoeaber 2f 
1919 t after petitioner had cakea the examination for the position 
in question, she nas duly oertified »Jid appointed to the positioni 
that on October 9, 1916, ehe was appointed Solicitor of ^Sarploymont » 
Chicago Free EHiploy««ait Offio«B» and served in that oapaeity until 
April 10, 1917, when she was appointed tmperintandeat in eh&rgo of 
women's and alrls* Division under the supervision of the General 



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Superiatendenti that on Ootobar 1, 1933, Martin Durkin suoe««d«d 
Barney Cohen as Director of the Department ef Labor ef the State 
of Illinois, and isald Durkin ie now the director of the department j 

"that on January 23, 1933 Bhe recelred a notice terminating her 
employment as 'Superintendent of .omen's uiTlsion of Chicago Free 
Jxaployment Office* ae of that date, * * * which netioe ie la worde 
and figoxes as follows, to-vit^ 

"SIATS OF ILLIHOIS 
2)I5PAI^TM5.jrr OF JJiBOR 
iiHlIBGyiSLD, ILLIHOIS, 

"lire. Lilla H, Walter 
2315 East 70th Street 
Chicago, Illlnoie 

"Dear Mftdam: 

"Thie is to notify you that your serTloes ae Superintend- 
ent of the l^om«n»B iUviaion of the Chicago Free iJaploy^ent Offiee 
«lll terpiinate with tha close of business Monday, January 23, 1933. 

"This is in accordance -^Ith carrying out the program ef 
eeonoaiy axid for ae other reaoon* 

* *.. ^!!T^ ^i^***»" »^ Supar Intend en t of the 'oawn'a Diyielon 

Of the Chloatro Prao iSmployiaeat Office hag been abolished, affectire 
January 23, 1935* 

"Yours Tery truly y 

"(Signed) A, H* H* itwood 

/assistant Lirecter** 

The petition alleges that the said no -ice was illegal and of no foroe 

and effect in thsti 

"(a) Said notice of lay-off was not signed by the appoint- 
ing officer I 

"(b) That said notice did not designate the title of posi- 
tions held by your petitioner in the claeaified serrice 
of the State of Illinois; 

"(e) That said lay-off of your petitioner as a aaatber of 
the claarlfied S't^rTlos and the retention of tee 
temporary appointees, was in Tiolation thereof." 

The petition further alleges that Atweod was net the appointing officer 
and that "co-incident with the lay-off of your petitioner, on to-wit, 
January 23, 1933 two texperary appointees, one John 3olberf and one 
Lisle Oberhardt, acting as Superintendents of J^ree j^aployacnt under 
temporary authority were retained ae suoh on January 23, 1933 at the 












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timtt your petitioner's ssrTloes wero terninated by eald notlo« 

of January 25* 1935;" that on January 34, 1953» petitioner serred 

a notle« In writing upon the Dlraotor of tho x)epart»ent of Labor* 

d eoaniiji Ing Jier reinetateawnt to the position in c^ueation* The 

petitioa further reoites that the petitioner » *'uader Seotioa 12 

of 'An Aot to leguXate the Civil Serrloe of the State of Illinola**" 

on January S5» 1933 » filed a foraal requeet for a hearing before tho 

Illinois State CItII aervioe Commiasion, and that on June 19» 1933» 

hy leare of iho CSe»ai(islon> she "filed an amended potltioa together 

vlth a letter addreesed to the Illintoie Btate CiTil Serriee CoaBlseion* 

which letter ie in words and figwroe as followot 

^'Illinois state Civil Kerrloe Coib»1bo1o«» 
FprlnFfield, Illinoie 

"Gentlemen* 

"Bef erring to ny letter of January S5, 1933, also the Secretary* o 
reply of January 26th awn my responae Of January 30th, Being 
Rdrlaed accordingly and after due eoneideratlon, it seeaiB in 
order to have a hearing before the Civil Service CoKmiseion. 

"It is my belief, upon InTSBtlgmtion, of the chfrngea ia tho 
(^hlcago :^ree IhBployment office and the sisploymant of non-clvll 
service appointees in that office, lay removal waa oade by evading 
the Civil Servioe Law, for political aud othsr reasons, in con- 
flict vlth oaid I<aw* 

"Hy difuaisaal letter specified *EoonoBQr and for no other {Airpose** 

•'Alleging evaeion of the Law lind the purpoae designated not 
aooompllehed, other euperlntendsnta haring been appointed vrho aro 
not undisr Civil Service, and, alleging x-urth&r that such action 
is in direct violation of the Civil ::.errlce Law, 1 hereby reepeot- 
fully request a hearing and rolnstatemont* 

"Very respectfully^ 

(Slgnod) "Lllla H. VTalt ar 
"Temporary addreae- 
760 nheridan Road, 

Glencoe, Illlaoie** 

The petition further reoltoa that the said CoiBtilsBlon notified her 
that the hearing on her petition '«s»s sot for \ugust 1, 1933, at 
9 o*olee]c A. M»| that "on imgust 1, 1933, a hearing on tho petition 
of your petitioner waa had before the Illinois State Civil "erTloo 
Commission, and notwithstanding tho fact that It waa shown that 






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political appolntaea ymrti acting as Temporary Appointeee, and 

that your petitioner has "been illegally ousted* in that (a) she 

had not rocelTed any notice of lay-off by the appointing officer, 

to-wlt: Barney Cohen and (b) her notice of lay-off did not 

designate apeolfically her title* and (c) the fact that the 

Assistant director, A. H. "F. • Atwood had laid off your petitioner 

and retained temporary appointee? (in violation of Section 5, BvCLm 

7 of the Illinois State CiTll Service CoBUttlssion) aaid Illinole 

State Civil Service Commissi on enclosed a copy of its decision to 

Michael F» Ryan, attorney for your petitioner tinder date of August 

18, 1933, in words and figures as follows, to-wlt: 

••IlilHOIB STATl CIVIL SERVias OOMMISBIOH 

••LILLA H. 'M/aS^mB, EITITIOHISK 
VS. 

BEPAHTMSHT OF LABOR, STATS OF 
ILLIHOI S , ES.SPOHDaHT 

"¥• ia»ery iiancaater, President 
John V. Clinnin, Member 
Ernest Hoover, Member 

••Hearing was called before the Illinois State Civil 
Service OommisBlon in the case of Lilla H. 'alters, Superintendent, 
Free Employment Office, Tepartment of Labor; said hearing being 
called OB notice of January 24, 1933» 

"A statement. In v;riting, in accordance with the Civil 
Service Law, "was filed by the petitioner, setting forth that her 
removal was made for political and other reasons and respectfully 
requested a hearing and reinstatement* 

"Hearing was had on this case before the Illinois 3tate 
Civil Service Comoiisalon on Aa^st 1, 1953« The evidence di&closes 
in this case, that prior to date of dispensing with the seinricea 
of Mra. alters, thera had been three (3) Superintendents of Free 
Employment Offices and after a careful survey of the Department, 
it was determinad that the Department could efficiently function 
with the services of only two (2) Superintendents as they had more 
employees than were needed to satisfactorily conduct the business 
of the Department* 

"The evidenee further discloses that the action in dis- 
pensing with the sorvioas of Kirs* alters was taKen in accordance 
with the progreim of economy and retrenchment of the Department, 

'*The evidence discloses ttftterewas nothing to indicate »hat 
the action of the Department in diij^jensing with the services of 
Mrs* V altera wad taken for any political cause j as no sufficient 
evidence was submitted to the CommisHion by the Patit loner t« 
sustain the allegations as set forth in her statement for hearing* 



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©;? aoXait, ■ .tvi«c UtXO &;>aJha 

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-6- 

*'Th«refor«i the Illinois ntate Civil Serriee Comaiiseion 
findB the diepenelng of th« serriees of Uxo. '^aXtoro was not 
dona for political cause as alleged In her stAteaent for hearing* 

**^« Eiammj Laneastort President 

"John V. Clinnin* tfeabor 

''Srnoat HooT«r» Meajber*" 
Thtt petitioner further alloges that on Gepteoiber 1« 19339 ohe 
petitioned the said UQausissioa ''for an inTostlgation under Section 
14 of *Ab Aet to Regulate the Civil Gerrioe of the State of 
Illinois**" This petition Is a lengthy one. 3y it petitioner 
sought to have the Coamission conduct an inreBtigationt under 
section 14 of the Aet« to determine the methods of adsinistration 
of thtt Departaent of Lalior of the State of Illinois in refer«io« 
to the ntate CiTil SerTiee Law and the rules of the Coaadssion per« 
taining to the position of petitioner* and to take appropriate action 
"to end that your petitioner may he immedtfitely reinstated and re- 
assigned to dutyf and i^lth full componsetlon from the date of her 
unlawful lay-off," %nd for such other action as the OoBanission aay 
deem neet under said section. The petition recites that her 
attorney* Miehaol ?• Byan, receired* on Noveaiber 28, 1933 » the 
following letter frai tho Comaiisalon: 
"l^ dear Mr. Byan: 

"In ansvfer to your letter of IJovember 3rd in re petition 
of Lilla H« Walter, ^^^uperintendent of Free Smployaent, Departaent 
of Lahor* will state request was had for hearing before the 
Couaission under Gt^ction IS and hearing has been given and case 
fully decided* 

"Tory a i nee rely yours, 
(>j;lgned) "W* jSmexy Laneaater, 
President*" 

It aaso alleges that on Deceidbor 1, 1935, petitioner's said attor- 
ney reoairer tho following letter froa John V* Clinuin, one of tho 
Coamissloners 4 

"The Walters ease was disposed of, and unlese it can be 
Bhown that teaporarios are doing this work| froa our investlgatloB 
and Dean Curry's stataasnt ahout payrolls, this is not the case*" 



He ■ 



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•xtcfeasri. siiliMiiXD »¥ totals" 

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The petition «l«o ftll«g<»s that th« Intter of Januwry 23» 1933 > 
was not signed by th% appointing officer and wae thernfore in 
violation of Section 12 of the Act* 

Upon the ox^l arguaont, counsel for petitioner eonceded 
that pet it loner » to eufitain the judgment » must rely upon the oon- 
ientioa that the notice of January 23 > 1933» was not in oomplianoo 
irith Section 12 of the Ciril Berriee Act* ae the Director of Lal»er 
io the appointing officer and the only one authorized under the ko% 
to sake renoTale* The petitioner could not o1»tain any relief under 
her petition filed under Section 14. Indeed the Conaiesion had no 
po^er under that section to reeeire and not upon the petition* (Soo 
People ▼• Aategt 360 111* 31» 35*) The Coraiaiesion vae fully Justified 
in ignoring that petition and in oalling the attention of petitioner's 
counsel to the fact that her rights had been detemined in the pro- 
ceedings brought under Beetioii 12* 

The Attorney Seneral o&Us attention to the fact that the 
petitioner requested a he&ring under inaction 12 of the Aet) that 
her petition shows that her qI&Ibl for relnstateaeat was based upon 
the claim that her reaiOTal was oade for political c&uees; tha& the 
Couoi salon held that she wan not reasoned for such oaunea* and "that 
the action in dispenaing ^^ith the seryicee of Mrs* alters was taken 
in accordance vflth the program of eoonoagr and retrenchment of the 
Department f " and the Attorney General contends that petitioner cannot* 
after such hearingt change her ground and now contend that she was 
not discharged by the appointing officer. This contention must bo 
■vstained* See the late case of People v* Cohen^ 355 111. 499| 50S» 
whore the question inrolTed In the instant contention is fully 
discussed and detorminod* 

The Attorney Oeneral contends that as the petition for 
MUldRnas was not filed until T?ebruary 2, 1934, the petitioner is 
barred by laches. It is argued that the delay of mora than one yoajr 
In filing the potltioa for mandamus Is inoxousablor and that "grea* 



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-7- 

public datrlaent and confusion will result from th« granting 9f 
the writ of mandaMUs in thl« ep««,» "'hlle thare In Tindoubtedly 
aoiutt force In the position of the Attorney Oeneral, narerthelesfif 
we do not deea It nactssary to pass xipon this contention. a may 
say, howerer* th«»t the filing of the petition under Section 14 
does not« as petitioner el^imet tend to exotise the delay. 

The Judgment of the Superior court of Cook oounty la 
rerereed, and the cause la reaanded irlth directions to the trial 
court to sustain the demurrers of defendants to the petition and 
to dismiss the petition for BandanuB* 

jUDiaisyr hisvishsi;2) ahb cavse 

mUASDED ItH DIKSGTIOHS, 
SulliTan and friend » JJ.i concur. 



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58422 



CHAELSS BRSYiat et al«, 

(Plaintiffs) Appallantsi 

IDITA S. AUDBSV/S et al.» 

Defendants* 





CLARA DIhS-SCHMIDT* j 

(Bef endeuat) Appellee* 



APPSAL FROM GIHOTIT 
COURT OF COOK COUHTY. 

28 5 I.A. 591 



MR. PBTilSIDBIG JUSTICB 3CAm.AH D!3LIV1!R1!D THIS OPIUlOU OF THS COURT, 



In the instsust case a decree of foreclosure and sale was 

entered on June 25» 1934* On Gepteaber 6, 1934| Clara Mersohmidtf 

defendant (appellee), filed her yerified petition in the cause, in 

which she asked t 

"1. That the dscrea of foreclosure heretofore entered in 
this cause be vaxsated and set aside f 

"a. That the Order approving the Master's I.eport of Sale 
axtd Distribution be Taoated and set aside; 

"3. That it may be found and declared that the foreclosure 
in this case is subject to the continuing lien of the note held by 
petitioner. * * *" 

On June 1, 1935, Judge Rush, who did not enter the decree, entered 
an order, upon the petition, that the decree of foreclosure "be 
vacated and set aside "and all proceedings taken subsequent thereto 
are held for naught." Plaintiffs appeal from that order. 

The bill was filed en April 1, 1932. It was aaended on 
lEay 4, 1932, by making Clara Dierschmidt (appellee) and Heroan 
Pallas parties defendant to the suit, and Louis D. Glanz, co- 
complainant. Appellee was duly served with summons on liay 12, 
1932, On June 14, 1932, another amendment was filed to the 
bill. On July 12, 1932, appellee was defaulted and the cause 



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bB-x'^ine t9»io&b ©x£c) f/jiae ion bib oxiw tilawJi sgbwL tflSt'X tl dx^uI, nO 

atf atixaoXosio'i lo es-^ioab ari^ ^stii lUol^iJaq srfd^ noqjj «tobto res 

o^Jetarf^ (tnesfposcTuR nn3iw.t aanibssoo-rq XXfi fitts** ©bJraB if>8 bm? boifiajBV 

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flaonoH bne (eelX9qQB) *biauioei8ia BuraXO j-iaiitam x<f tSiSCX ,^ t-sM 

-•Q tSfl^XC .il Biueu hfxB t?iwa axiiJ 0;^ ;JxiabD«>l»ft soi^rusq •aXXo^ 

,SX T&JBAi no anomaxwa ri;ti?/ bsT:c9a y.Xwfe 8jw eelXeqqA *ia&aisilqmoo 

edi 03 heltt B*nr ^fnestbaeiaa iisxi^Jofijp «S;S©X « i^X enwt «0 .SCtfX 

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was referred to a master in chancery* On March 21, 1934t an 

amended and supplemental bill ^as filed making all the defendants 

who were named in the original l3ill and the amendments thereto^ 

defendants. The record does not eho^v that appellee was ruled to 

answer the amended and eupplernental bill. No appearance nor answer 

was ever filed hy appellee in the cause. The hearings before the 

master ooBuuenced on Jvily 13, 1932, ajid the proof was closed on April 

13, 1934* On October 19, 1932, appellee testified 'before the master* 

On May 11, 1934, the master notified all counsel in the cause, also 

John I. Owens, one of the solicitors for appellee, that his report 

had been prepared and that objections might be filed thereto at any 

time up to auad including May 13, 1934, at which time he would take 

up and dispose of any olsjeetions which might "be filed* Thereupon 

appellee, through her solicitors, Owens & Owens, filed with the 

master the following objections to the report* 

"0BJ12CTI0HS OF CLARA BISRSCHBIDT 
CHS OF THE DSFSamNTS HSKSIH* 

"Now comes Clara Dierschmidt , one of the defendants in 
the above entitled cause, and objects to the report of Isidore 
Brown* IDaster in Chancery, for the folloiwing reasons* 

"1. That the tranecript upon .'/hi oh said Master has based 
his report Ira not the true and correct transcript of the testimony 
taken before said Master* 

"2* That the Master is not in possession of all of the 
original exhibits in this case and therefore the :;^ster erred in 
making a report wherein he treats copies of inatruments to the 
same effect as though they were the original documents* 

"3* ?or that the Master erred in allowing the complainant 
to file a copy of a document ^rhen the original of such document is 
not in possession of the complainant* 

"4* For that the Master erred in finding that the com- 
plainants hav3 a first and prior lien upon the premises involred 
in this cause* 

"Respectfully submitted* 

"Cleora IDierschmidt*" 
Thereupon the master formally notified all of the counsel, also 
Solicitor Owens, that after due consideration of the fiLferesaid 



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^€Hjfcit eiil (^ftXiegti-h.- mo't a-ro^ioxXoa nrl^ 1o sno «enij\70 »:■: nrioL 

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t ,fre-«srO ;i?, snsrO «8ic. teri rfsi/otri;? ,©»XX»qq[« 

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objections "and after hearing argiiraonte of counsel in respect 

theretOf" h.e ha.d reached the conclusion that all of the objections 

should he overruled* and that they were accordingly oTerruled. 

Appellee did not file exceptions to the master's report nor did 

■he take any steps to iiave the chancellor pass upon her objections 

to the report. ih&t purports to be her petition (filed September 

6, 1934) is as follows* 

"IN TH3 CroCUIT COURT 0? COOK COUITTY 

"CH/IRI^BS BRSTSR, et al ) 

-Ts- ) IlSr GHAlTC"/iF.Y 

3DNA 3. MTDRmiS, et al ) HO. B-239256 

"PETiriOT 

"Your petitioner > Clara JJierschsiidt » represents to the 
Court as follows t 

"That she is the owner of Hote 'W in the sum of One 
Thousand Dollars secured by the Trust Deed being foreclosed in 
this cause} 

"Your petitioner was made a party defendant to the Bill 
of Complaint herein and on April 1> 1932 » an amendment was filed 
subordinating the foreclosure to the lien of the note held by 
your petitioner; that your petitioner thereupon allowed the bill 
of complaint to be taken against her as oonfesscdj 

"That your petitioner received a letter on August 12^ 
I934» from the Honorable Isidore Brownt Master in Chanoery» ia 
words and figures as follo-fl's: 

"'This is to adTlse you that I have in my possession 

the sum of |212«67> being the aiaount due your client 
(one of the non-depositing bondholders) in the case 
entitled •'Breyer r. Andrews"! Circuit Court Ho. B-&39256'. 

"That a sale was held in this cause on July 24, 1934, at 
whioh the property involred in this cause was sold for the sum of 
Nine Thousr^ind Dollars and a deficiency taken of T-wenty "Sight 
Thousand and Fifteen Dollars. 

*'That your petitioner filed objections to the Master's 
report herein but received no notl'^e of the presentation of any 
decree herein nor did she receive any notice of the presentation 
of the iiaster's Report of Sale and Distribution. 

"That upon cheeking the records in the Office of the Clerk 
of the Circuit Court of Cook County youx petitioner ascertained 
that the complainants herein filed a supplemental bill without 
notice to your petitioner; that your petitioner was not served with 
any summone under the supplemental bill; nor given any notice that 
proofs were to be introduced uzider the supplemental bill; uhat all 
of the proceedings taken in this cause subsequent to the time when 



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the aaended TdIII of complaint was taken as confessed against 
your petitioner was a fraud upon the rights of your petitioner 
and an attempt to prejudice the rights and clal» of your 
petitioner herein* 

"WHERSPCfflE , your petitioner asket 

"l. That the decree of foreclosure heretofore entered 
in this cause be racated amd set asidei 

"2. That the Order approving the Master's Report of 
Sale and Distribution he raoated and set aaide| 

"S. That it may he found and declared that the fore- 
closure in this case is subject to the continuing lien of the 
note held by petitioner} 

"4. That such other and further orders may be entered 
herein as to the court shall seem meet and just* 

"CLARA DimSCHMIDT 

*3y S. 17. Miller 

Her duly authorized agent* 



••STAT3 OF ILLIHOIS 
COUHTY OF COOK 



jss. 



"3. v. MILLSR being first duly s^vorn, on oath deposes 
and says that he is the duly authorized agent in this behalf 
of Clara Dierschmidt j that he has read the above and foregoing 
petition by hi« subscribed, knows the contents thereof, and 
that the sane is true ia substance and in fact* 

"S* W* iULLSB 

"Subscribed and s'iiforn to before me 
this 6th day of 3ept ember, A. D. 1934. 
" "A* L* Gohxxt i:Totary Public 

"(sasAL)" 

In the brief for appellee counsel state that the petition 
is not a fflotloB in tlie nature of a writ of error coram nobis, nor 
OBe in the nature of a bill of review; that "the petition of defend- 
ant was filed to vaeate a void decree* * * * The trial court in 
tlds ca»tt vas without jurisdiction to adjudicate the rights of the 
defendant when she was not properly a party to the amended and 
supplemental bill of complainti" that appellee? after being defaulted 
under the original bill, was not bound to take notice of the filing 
of the amended and supplemental bill; that her rights were fixed 
at the time the decree pro confesso was taken against her* Appellee 



^^. 









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XX»4I<fA •'Xoxi iaiii.Bia*i iii/«V)i 4**i.v q <iaclnpo o.vcc;' e>c xoc c 2:1:^ i;;:iri:: ^r.v j- 



-5- 

w&s the owner of prlnoif£:l note '*W»** ancl Hexnan Pallas was the 
owner of principal note *'£"• Louis D» Olauz wae the trustee 
under the trust dead in questloa* The amended ^ill contained th« 
allegation » **sold * * * subject to the continuing lien of said 
trust deed to Louis !)• Glanz securing notes K and W*" Upon the 
oral argument it wps conceded \>y appellee's counsel that this 
allegation accorded appellee a priority to which she was not 
entitled. The amended and supplemental Isill simply corrected the 
error in the amended billt and appellee* upon the oral argument f 
concedes that she lost no rights Taj reason of the correctlont The 
amended bill* which gave petitioner a prior lien» improperly pre- 
judiced the rights of the owners of certain of the other notes 
secured by the trust deed* The argument that upon the filing of 
the amended and supplemental bill the jurisdiction of the person ef 
the appellee was thereby lost and that to again obtain euch juris- 
diction it was neceasary to take out a summons and serre the same 
upon appellee f is without merit* 

"It is a rule of chancery practice that by filing an 
amended or supplemental bill all previous decretal orders are 
Taoated and the defendants may answer the original and amended 
or Bupplem^tal bill* 3uch an amended or supplemental bill is 
held to make a new case and to authorize it to proceed as thoxigh 
a decree pro co nfess o had not been rendered* The defendant in 
Buoh case has" a right to anarer both the original and supplemental 
^iH» ( Sibson T» Reest 50 111. 383.) The effect of amending the 
bill after a decree pro confesso is stated to be» to render the 
preyioue order to take' the bill pro oonf eeso inoperatlre even 
where the purpose of the amendment is to rectify a clerical error* 
(1 Daniell's Oh. PI* ft Pr* (6th Am* ed.) ♦425; Weightman r. Powell » 
2 DeG* & S« 570.) The effect of amending the bill after a decree 
pro confesso is to set aside the default without any order of the 
court* ( gjl^sen v. Rees » supra ; Lynd on v» Lyndon » 69 111* 43; 
South Chicago Brewing Go* v. Taylor, 205 id. 132; Ruppe t. Glosi 
IBa'id* 80. r [ Qdell Y. Levy , 307 111. 277, 281.) 

''\7here a defendant is once brou^^ht into couri he la re- 
quired to be present and take notice of every step taken in the 
progress of the cause. ( Mix v. Bef?ch, 46 111* 311.) /.ppellant 
Arnold was compelled to take notice of the fact that by leave of 
cotirt appellee might make any amendment necessary to sustain the 
cause of action for which his suit was intended to be brought. 
By the service of summons he wns brought into court, -/here it was 
hl« duty 1^0 be anu appe«ur until the case was disposed of, and ho 



«ilJ noq ' ->CJ8 :i 89*ok sfliiKi^aE &am£^ ^€i 9 lathi oi baeb ^RWsi 

aidi i^t tBiRnsj ilOKi^s x^ fesj^trao-; : osiargr-s Lute 

^Qa aBW ©iCa no iff 'V f?.-^ r.itio^Jtiq, £ 6^Ll&%q,s;. habTOooj? noiJaasIXa 

to sjiilJtl ^a* noqw *^xl* iri&msJh'^.^. sxlT .bs^b *3yi^ ^£{;f vd" bsttfooe 

be ■ etlo 'r . v 

si lIxcJ ^ .->ixc; l.iiii •? 

XiSJ -a 

aii.' inSb: , , . .ilxcf 

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•if bflJB «10 basoqslft aew Muso esd;* Xx*njj i:«OQ>i*3 ^ne- ©cf oj x-wL »i<l 



-6- 

wae entitled to no further notice or serrice under the practice 
in this State. ( Hiehoff t, ir eople, 171 111. 243.)* ( Rttppe t > 
Glos, 251 111. 80, 82.) 

The proper practice upon the filing of the amended and supplemental 
"bill was for appellants to hare had a rule entered requiring ftppell«« 
to answer the amended and supplemental bill. This iras not done. 
But the failure to do so did not affect the court's Jurisdiction 
as to the person of appelle«. /'hile neither appellee nor her 
counsel ever entered an appearance in the cause, they took pari in 
the hearing lief ore the aaster* The only ohjections filed to the 
Blaster' B report were those of appellee* and after they had heen 
overruled they were abandoned. None of the four objections inter- 
posed has any bearing upon the question of jurisdiction, although 
the amended and auppleaental hill was filed more than two months 
before the filing of appellee's objections to the report. The 
transcript of the eyidenoe ahows that because of the filing of the 
amended and supplemental bill plaintiffs deemed it necessary to 
re-offer certain evidence. The master's report refers to the 
amended and supplemental bill and concludes that the allegations 
of the same have been proven. It appears, therefore, that appelloo 
was fully apprised of the filing of the amended and supplemental 
bill, and yet she took no steps to answer the same. Indeed, she did 
not see fit to even filo an appearance in the cause* 

It will b« noted that the petition of appellee is signed > 
**Clara Dlerechmidt By S. W. Miller Her duly authorized agent,** 
and the affidavit in support of it is signed by 3. W, Itiller, "the 
duly authorized agent in this behalf of Clara Dierschmidt." It is 
somewhat difficult to understand how this agent could swear to 
eertaia alleged facts that are set up in the petition and upom 
whieh appellee relies* 

Appelloe contends that because appellants made no motion 



on oi r- ■' ' ■'■^^'■^ 

70£ . :■> tsoxe 



Xl6q?I-« ^l-iiuci-'i betB^tii. v-ri oJ a ix!c«XI»<iq[s %9l »am M 

ted ion 9©J[X©«iq:a tsiUiaa ©XXii^ ,s»Xi©«Q.« to iiQa-f^SL «1^ ©^ »* 

Ki l-raq ^co:f X^^fi- cOutU^- oiwXfl®%^ '^ ■■■ ' ''' 

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Bif;tjn:os ow* fii?xi* 9-^obi ■ — 

a„ox*..T,eIXB .ri;^ ;^.^.^ ««^i«X.nc. to XXM Uii^^mm^^ fc^- ^«^na«B 

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-7- % 

to etrike the petition in the trial court they cannot question 
its sufficiency in this ooxurt* Thsre is» of course* no merit 
in this contention. The petition did not set forth any t^ounde 
giving the court Jurisdiction to vacate the decree. It uras 
therefore a nullity » and the question of the lack of Jurisdiction 
can he raised at any tine. (See Johnson v. gel eon t 341 111* 119| 
121.) Where Jurisdiotion does not exist it c-<?nnot he conl'«rrOd oron 
hy consent or aequisseenee. ( Miller r. Illinois Cent. R# Co»». 
327 111. 103 J Larooa t. Kah n & Co,, 322 111, 147 1 Wiehard r. 
Scho ol Di reet ora i 279 111. /pp. 333, 336.) Upon the oral argiment 
oeunsel for appellee n&s obliged to take the position that the sole 
purpose of appellee In haring the decree vacated was to enable her 
to question the amoimt of attorneys* fees allowed hy the master and 
the deeree. The master's report reconunended that solioitors' fees 
in the amount of f2,500 he allowed. None of appellee's ohjectiona 
to the master's report questioned this recoiamendation. The decree 
follows the Blaster's report in regard to solicitors* fees. Appellee 
does not attempt to argue any of the four objections made to tho 
report* 

App^lee'o petition was predicated* apparently* upon the 
theory that complainants* in their procedure* had been guilty of 
fraud upon the rights of appellee. She has been foreed to abandon 
that position* and the contention as to lack of Jtirisdictien of the 
person of appellee le now raised. There is not the slightest merit 
in it. Had appellee appealed from the decree under the record in 
this cause the decree would have been affirmed, v/e cannot understanA 
upon what theory of law the chancellor regarded the petition as 
suffioiomt to vacate the decree that had been entered by another 
ohancellor months before* 

Appellee has filed a au>tion in this court for a rule on 



BJtia*0t>j -^s dire' 






*aeEu;gis X01O ©rlJ noqU {.fl6S « : , , ;'S; ^i^st^o g os? -liCE^XQ 0:: 

8HOX3o9r,c ' o sr'ol'ff .b&woXXs ®^ QOrl^ ' ,tnifO!'^'^< ©da rii 

9910; ^- .nsi^rai?':. bejMOio ' . 3di tti 

osIXt»c:q-n .ass's: 'prjco, 0.^ frTr^:?,r.T r.r Jiot. ' > . . roXXolC 



.lX3(!fQj3 to mjaTf»c 

|>rta*aT:sf>«« *ofln«o . v«d Wi/owf &©T99b »/ii saw-so aid; 

8S noltfi.'i»q eris bsbi^ssT -xoXXsomirfo »jS* wsX ^o Y^osrl* Sfjsuiw noqx 

• etolffitf exSJWow toXX«onsri< 
n© eXutt a aol ciiaoo aM3 fii aoktom a b^llt a/isf ©«XX«jqq:-A 



-8- 

the attorney for appellants to show cause why he should not be 

held In conteMpt of court for misquoting the original record in 

the shstract of record filed in the cause. This motion will "be 

denied. 

The order of the Circuit court of Cook county of June 1, 

1935f that the decree of foreclosure entered in the oause on June 

26, 1954, be vacated and set aside and that all proceedings taken 

subsequent thereto are held for naught, is reversed* 

OF.WT-. OF JTJ?rg 1, 1935, THAT DECRPIB OF FOKICLOHTJRB 
EMTBIBSD JJJSE 25, 1934, BE VAC/tTED AND SST ASIIB 
AlTD TMT M.L P!10G?1 roiIJGS '"AES'IT SXIBSSOXn?lSrP THSRETO 

AEa mix FOR naught, reversed. 



SuHli^an . aad Friend* JJ*, coaouTtt 



• focstsvr :o- &Xf" . fl<5fff)«ed'ui 



.•?■■. 



*'jb;3«c: .. ■ ? ^£rXlll 



38433 



R. £• HAYwARO COKPAHYf 
a corporatioBf 

Appellant » 



THB LUliDOFP-BICKlirBLL 
COMl'ANY, a corporation, 
Appellee* 




\ 




APPEAL FROH IIDKIGIPAL 
COmT OF CHiaiGO» 

28 5I.A. 591'' 



MRt PR13SIDI3IG JtJSTICS SCASLAJf U)aiY3PBD THE) OPIHIOIT OT* THR COURT, 



In a contract action tried by tlie court without a jury 
there was a finding and judgment in favor of defendant. Plaintiff 
has appealed* 

Plaintiff's statement of olalB alleges that on or about 
May 17, 1934, plaintiff and defendant entered into an oral contract 
wherehy plaintiff agreed to furnish to dsfendaat certain lahor and 
materifiils in the installation of ventilation equipment in the Irish 
YillagOf that was located in *A Century of Progress TSxposition, 
Chicago," said labor and materials to he furnished and the vork 
completed on or before Hay 25, 1934; that subsequent thereto plain- 
tiff and defendant orally modified the contract whereby plaintiff 
agreed to furnish to defendant further and additional labor and 
niateriale in the installation of the said equipment, the labor and 
materials to be furnished aM the work completed on or before May 
S5, 1934 1 that defendant agreed to pay to plaintiff for the afore- 
said labor and materials the sua of $2,496; that plaintiff per- 
formed all of the terms and conditions of the contract as modified 
and furnished to defendant all of the labor and materials on or 
before May 35, 1934; that, although often requested, defendant bas 



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taoi ^'.fi'ioq-xoo b ,niA'IMOO 



Hoim 



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taoiiiiBoqj^S eeeasox^j. Ito '^tu^naO A*" ci fea^fnooX saw tf&iii ,©8«XXiV 

I'iidnifiXc;; \;<i©i • >* hs-iljtbow v.XX,krxo JaflbnwtoL i^ 

baa a«d«X 9iii t^nsmqiijpe bx^e oiia Icj fiai ;?«XXfl*afli erid fli aXwlis.'^ 



': ■ ' tXMl :'n.n -co; - : -^ . , ..; 






failed and refused and a till fails and refusas to pay to plain- 
tiff th» 1-2,496, or any part thereof. Attached to the statement 
of claim is an affldarit of claim. Defendant's rerified affidavit 
of aerits is as follows J 

■C. M, JTorrls, being first duly av/orn, on oath deposes 
and says thst he is the Vice-President and duly authorized agent 
of The Lundoff-Blcknell Company, defendant herein; that he has 
knowledge of the facts; that, he verily believes that said defendant 
has a good and meritorious defense to the #hole of plaintiff's olai«, 
and that the nature of said defense is hs follows! 

"(1) That on, to wit, the 28th day of March, 1931, the 
defendant, as general contractor, and Irish Village Corporation, 
as owner, entered Into a certain agreement in writing, wherein 
and wherehy the defendant agreed to construct for said owner the 
Irish Village at the 1934 Century of Progress; that it was agreed 
that the owner would pay therefor the total construction cost, 
and that said payments were to be made as follows, to-wit: one-half 
of the total construction cost on or before May 25, 1934, and the 
balaaoe on or before August 15, 1934* 

"(2) That thereafter the plaintiff and defendant entered 
into an oral agreement whereby the plaintiff agreed to furnish 
labor and materials in connection with the installation of renti- 
latlon equipnent In said Irish Village, and said Tilaintiff agreed 
that the defendant would be liable to the plalnti'^f for the cost 
of said TPork, labor and materials as aforesaid only if, when and as 
payment therefor was received by the defendant from the owner 
aforesaid. 

"(3) That thereafter on, to wit, the 25th day of May, 

1934, plaintiff f?s sub-contrRctor cjid defendant as general con- 
tractor entered into a certain agreement In writing (a signed 
copy of which is in the possession of plaintiff) wherein and whereby 
it was provided, among other things (addendum - Art 15) as follows: 

"•That the Contractor agrees to pay to the Sub-Contractor 
the total amount of the sub-contract price of One Thousand 

Eight Hundred Thirty-Pive and no/lOO (1^1,835.00) Dollars 
if, as and when received from the Owner, It being understood 
and agreed that all pajnaents made to the fJub-contractor are 
conditioned upon such payments being made to the Contractor 

by the Vmer.' 

'••The sub-contractor shall receive as his share of the 
payments made by the o^ner on the herein stipulated dates 
such proportion of the funds made available as the amount 
ef this sub-contract represents to the total amount of the 
general contract.' 

"(4) That pursuant to the agreements aforesaid the plain- 
tiff furnished smd installed the ventilation equipment as required 
in and by p.' id contract. 

"(6) That the defendant has heretofore recalved from the 
owner upon the construction contract aforesaid the agtjregate sum ef 
$1,265.00, of ,vhlch the sja'rjve payable to the plnintllf was the sum 
Of, to wit, ^14 .39, which sua the defendant on October 10, 1934 



. '^...;, cj., r ir;;. ■ rf^i^ ^firic* r:r 



»r' ; ( 



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nisi; t ^^ yt^ ,ns 

erfrt hfL^ ,^C^L ,3SI ^e;^ s-o ^^ ^ _^ ,^ ^^ 90iX£. 



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-3- 

sent to the plaintiff, and vhioh bub the plaintiff refused to 
receire and accept* 

"(6) That the defendant is not indehted to the plaintiff 
in the SUB of $2,496.00, or any interest upon said sum, or in any 
sum whatsoever, other than the sum of ,14.39, vthlch the defendant 
has been and is now ready and willing to pay to the plaintiff, 

"C. M. Iforris" 
C* M* Horris, rice-president of defendant coapany, testi- 
fied that "Mr. Curtln ol our office handled the transaction with 
plaintiff company relatire to their ventilating work at the Irish 
Village* Mr* Curtin was Chief Estimator of our ooapany and also 
Purchasing Agent for this job** Defendant concedes that WilllaM 
Kuechenherg, superintendent of plaintiff company, and P. J. Curtin» 
former chief estimator of defendant company, conducted the nego- 
tiations and agreed upon the terms of the oral contract. Kueohen- 
"berg and Curtin testified that the oral contract contained no con- 
ditional payment provision* and certain documentary evidence 
corroborates their testimony in that regard. The following is a 
letter of plaintiff to defendant, dated the day after the making 
of the 0X91 agreements 

"May 13, 1934 

"The Lund off -Bicknell Co. 
100 North LaSalle Street, 
Chicago, Illinois. 

"Attention: Mr* Curtin 

"Gentlemen* Res IRISH VILLAOE - #460 

"We acknowledge yours of May 17th, regarding the above » 
and thank you for the consideration shown us. 

•T/e confirm understanding with our Mr* Kuechenberg, as 
follows: 

"50;^ on completion. May 25th, 1934, 
Balanee, August 15th, 1934. 

"Yours very trulyt 

"R. B* HATWARD COMPANY 
By (signed) R. B. Hayward 
"RBHtiB" 

I>efendaat did not answer this letter. An invoice sent by plaintiff 



t < . ( , ... 

• iij;>;iij,^l;i siiiv oi T^q j^<j' ^fuXXliV oris 'i,ti^-2'i x:qv, ix ijxiii iii-sU -i^xi 

©on© r £«^iforfcr d'ns.fflxoq JEaxyoi^lb 

.: ■...nxroIXo'i: ■ . ....... --cfBToeic-iioo 

. , XjPto srlo 'io 

.a«f rr^offa KoJtlRTfS'Manco sri^f tco^ t/o\; jir: -■ 






"ffsHfiH" 



-4-4 

to defendant contains the foXlo.ving4 "Texua of p&ymant., 50/« on 

completion* Hay 25, 1954* Isalance* august Iu» 1954." it also ba&rs 

upon its face tho approval of the auper intend ent •! defendant* It 

Is conceded by the affidavit of merite amd by the testisiony of tho 

vice-president of defendant company that "the ftork of plaintiff 

company was completed on May 2&t 19^,** as required by the contract* 

The contract between defendant and the Irish Village Corporation pro* 

vides that "half of the total cost of said ivork> including actual 

co6t» plus ten per cent (10^) thereof) shall be paid by the Owner to 

the Contractor on or before May 2S» 1934 »** and further provides that 

the entire swount due under the contract shall be paid on or before 

August 1$,1934, The Irish Village Corporation defaulted in tho payaent 

due defendant - approximately |.55,000 - on May 25, 1934. Thereupon 

the vice-president of defendant company sent to plaintiff, through the 

mails, a letter and a "Sub-Contract,'* which latter purports lo bo an 

agreement between the parties covering the work that had already boon 

completed by plaintiff company under the oral agreement. The "Sub-CoB- 

traot" is a lengthy one, partly printed and partly typewritten • One of 

is 
the many terms and provisioas contained therein^the folloT;ingj 

"Addendum* 

"ARTICLB XVj It is further understood and agreed by and 
between the parties hereto, as follovst 

"That, the Contractor agrees to pay to the Sub-Contxaotop 
the total amount of the suH-oontract price of One Thousand Sight 
Hundred Thirty-five and no/lOO (|l,835,0Q) Dollars if, as and when 
received from the Owner, it being understood and agreed that all 
payments made to the 3ub-ContPaotcr are conditioned upon such 
payments being made to the Contractor by the Owner. * * *« 

The letter reads as follows i 

•♦May 25, 1934, 
*R« B» Hayward Coaipanyi 
1714 Sheffield -wenue, 

Chicago, 

"Oentlemeni- Re; Irish Village - #460 

"We are attaching hereto four (4) copies of sub-contraot #460-49 



iri;f 1» y.ae0i^;«i,.,^ uiii x<^ fo«« a^i-xam 'io ji^jsbiii^ arid xc babaonoa ai 
-^ttcifloo a£;r xtf i>«.ti^;;»« a« ".♦oil tea tcsM ijw JbaJsIqaot) a«ty x«sqinoo 



»25Hi:sf<:)XXo"i 9iiv\^iii9-.t??rii I>©aie^ft0« ajotcieivoi^ fees 8«i:9J> Y;iJBm 8Xi# 

to Jojroctss X«ioi i^di 

■■■--'..■: ■•-■"■ -- - ■■ r.i;^ 

lawoXIol tin eb.a©T t©**6X ei!T 



-5- 

corerlng the VHINTILATIO!^ for the above named pro j act, 

"If the teras and oonditioas ae outlined therein neet with your 
approvalf please hare all four copies signed lay your President, 
Vice President, or Treasurer, hare the signature witneeeed and 
your corporate seal attached. If you will thsn return all four 
copies to us we will affix our signature and return one copy 
to you for your files* 

"Please note particularly ^ rticle IV which instructs you not to 
assign nor sublet any part of this work without Tifritten approral. 
We uuat insist that these instructions be adhered to* 

"Tours Vary trulyj 

"THE LUlsn JOFF-B I GiarJLL CO. 
By (signed) C. M. HOREIS 

"C. M. lorrie 

Vice President 
"nr 

iBOl* 4 

#460" 

The president of plaintiff company, without reading the "Sub-Con- 
tract" carefully, signed it and returned it to defendant company. 
He testified that he did not notioe the conditional terms of pay- 
ment stated in Article XV until June or July. Defendant rtceirad 
the signed "Sub-Contract" from plaintiif on May 29, 1934, It then 
signed it» by its vioe-president, and sent to plaintiff the follow- 
ing letters 

"ilay 29th> 1934. 

"R. B. Hayward Company, 
X714 Sheffield Arenuef 
Chicago, Illinois. 

•Gentlemen* 

"RBa-IRISH VILLAGE - 460» 

"We are sorry to adrise you that the Owners of the Irish Village 
Corporation have defaulted on the 50;:^ payment due us under our 
contract on May 26th# 1934, Inasmuch as payment to you on your 
contract with us is contiaagant upon the receipt of these fxmds 
from the Owners no payment can be made you at this tine, 

"We have taken steps to protect your interest and ours to the 
fullest extent possible. As soon as the exact procedure to 'be 
followed is decided upon we will advise you further, 

"Yours very truly, 

"THE LUirDOyp-BICK¥r;?LL CO. 
By (signed) CM, Norrle 
"C, M. ITorrie 
"CLTJ.C." Vice President. 



■ ■■■■'* ■'^lO'tq, J>t.ii«ii (Pvpd*^. tii:^> TO> KOJ^fUilTIIlRy .OfI# 3BX19VC0 

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-6- 

Plalntiff** theory of the cas« la "that the Tontllating 
work was dons on dofendant's direot proaise to pay under the oral 
contraot» entered into hetw«en the partloot The contract price of 
|2»496 is admitted as is the fact of tha work heing fiaiy coapletad 
prior to the execution hy either party of the i»ritten contract in 
which defendant's liahtllty is made conditional. On this premiee, 
plaintiff olaiaa the written contract constitutes a new undertakiag 
of the parties, and must therefore be supported \j independent or 
additional oonelderatioa}" that it is not disputed that there was 
ao eonsideration for the alleged written contract; that it is 
elementary law that consideration for a contract must he pleaded 
and proredj that defendant failed entirely in this regard and that 
the trial court erred la overruling the motion of plaintiff » made 
at the close ef all the evidence* that the alleged written contract 
1»e excluded* Defendant concedes "that the plaintiff furnished the 
vorkf lahor and material pursuant to an oral agreement, but alleges 
that it was agreed and understood between the parties that tha 
defendant would pay the plaintiff for the work only when, as and 
If it receired payment therefor from the Irish Village Corporation* 
the owner. * * * The sola question before the court is, therefore » 
whether the trial court erred la reoeivlng in evidence the signed 
contract of May 25, 1934* V7hether or not the contract was teohni- 
oeLlly valid ^iker per se or as a confirmation of an oral agreement 
is not material* Its value lies ia the light which it sheds upea 
the true nature of the disputed oral agreement, and, whether yte 
view it as a contract, or as an admission by the plaintiff against 
its iaterast in this suit, it had undoubted significance;" and 
argues that "the contract of May ^5» 1934* was the reductloa to 
writing by the parties of the oral agreement previously entered into 
and upon which suit was brought." In its affidavit of merits 



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bos ;:3 tfisriw ^iflo '^.UttijBXq «fiJ "^js^I bXwov? ^ixafena'. 

tnoi^BitxitoD s^jcXXl'. t :3:olsTSiCi itiem:»(L &»vi909i JJt il 

, ijTetei^ild »aJ: itisoo erCtf oiolati" oojt^a®«(^ eXco 9sit .t©nwo »£l* 

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noqu cfe«<ria .-^t lioijrtv ^rl',,iX »cC. nj- aeiX ©4iXr> ♦.C.<5l'3:«?;^«ia iosi al 

tiaj: b^ ■ -iBVoirer-ci itv-mpciT^"^ Xi-*tc .rf -^nlcflTiw 



-7- 

defendant alleges that there were two a^eettenta» one oral and 

one written f and that In both plaintiff agreed that defendant 

would ^« liable to plaintiff for the cost of the work» labor and 

materials only if i when and as pajrment therefor was reoelred by 

defendant froa the owner aforesaid* At the oonolusion of all 

of the e-videnoo defendant Boved "to exclude all testijKoay relatire 

to oral sigreements on the ground that the contract was Merged in 

the written agreement." The trial court reserved ruling upon this 

notion* but in his opinion deciding the case he did net pass upon 

it« It will be seen* thereforep th.at defendant has not been oon* 

sletent in its pOEition as to the nature and effect of the so-called 

written agreenent. In deciding the case the oeurt rendered the 

following opinion: 

"The Courts irow» it would serve no good purpose for thie 
Court to take up the question of the truthfulness of anj witness t 
Therefore* I am not going to go into the evidence at allt suffice 
it to say that in my opinion I am controlled by this contract or 
by this paper introduced in evidence and not by any idea of a 
verbal contract by the parties. That was signed by the president 
of the plaintiff company* and I must look to them for the burden* - 
I will put it that way, if you wish* on which side the burden is* 
And that* to ny mind* has been shifted to the defendant to such an 
extent that I am inclined to feel that the paper negatives about 
what the orijclnal verbal contract was* and that being so* I do not 
think the plaintiff has made out his case by a preponderance of the 
evidence* 

"Therefore* there must be a finding in behalf of the 
defendant.* 

That the written document of May 25* 1934* cannot be sus- 
tained as a nev; agreement is net disputed* and defendant is finally 
forced to the position that the written document vreis "a reiteration 
or confirmation of the oral a^eeioent of the parties*" lie have ne 
difficulty in finding from the evidence that the oral agreement 
between the parties eontained no conditional payment provislen* 
and that the written document was but a part of a scheme of defendant 
to evade meeting its obligations to plaintiff* evolved after Irish 
Village Corporation had defaulted in its payments to defendant* The 



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on ovjjii 6'* *»e«xJxB5 »xfit lo ^.ruMa^'i^^ic- Liy^^o ^Uv .1.0 rfoiJ-flBrrituoo 'M 



-8- 

intent of defendant to oldtain an unfair adrantage of plaintiff 
is obTioUB froB the undisputed faote and clroumetancee* If we 
assume, however, that defendant's contention that the written 
document was conpetent evidence and uuat he considered in deter- 
mining the terms of pasrment under the oral agreement is correct p 
nevertheless, we are satisfied, after a consideration of all the 
facts and circumstances in proof, that plaintiff has prored its 
case by a preponderanoe of the evidence* 

The Judgment of the Municipal court of Chlcrgo is rerereedy 
and Judgment will be entered here in favor of plaintiff and against 
defendant in the sum of ^2f496« 

JUDQMnSHT RSYKRSBD, AST) JUDdMSHT H3PvS IS yAVOB 
OF PLAIHTI5T AM) AGAllfST D'^mDMH IN TIE aUll 
OF $2»496« 



Sullivan and friend, JJ*, conour* 



9v II .39oniS^fl««afo>£lti fws.8 sd?>8lt hfftk}^?f ih&B sjl* affoit s»9J:vtfo si 



j»iJU0J3os «. ' < '->nsi;:i'ii: txis ns^rtLlu' 



58454 



I>A?II) KABS, IVC.f a cor- 
poration» 

Appellant p 

r* 

SALES STIMDIATORS, IITC*, 
a oorporatlon« 

Appellee* 





APPEAL PROM CIRCT3IT 
) COURT OF COOK COUHTY. 

! 28 5I.A. 5 93^ 



MS. PRSSIDIHG JUSTICE SGAHIAI BILIVSRED THS OPIITIOH OF THE COURT. 



An appeal to rererse a Judgment for $209.02 in faror of 
defendant on its plea of setoff and for tlie entry of a judgment 
here against defendant for tl»751«95« The oaee was tried before 
the court without a jury* 

The amended complaint alleges that plaintiff receired from 

defendant the following order > under date of May 1, 1933 t 

"Please enter our order for 400 gross of fountain pens of the same 
kind and quality as we hare been receiving from you. * * * 

"These fountain pens are to be delivered to us at the rate of 50 
gross per month to be shipped on the 15th of each month. * * * 

'•The price is to be $34.00 per gross. Net #154 

"Kindly sign and return to ua the duplicate of this order whleh 
is enclosed to signify your acceptance." 

The amended complaint further alleges that plaintiff accepted the 

order and on May 15> 1933, delivered to defendant 50 gross of pens, 

Of a value of |l,700| that on June 10, 1933, defendant ordered 

plaintiff to ship no more pons until further notice, which order 

was accepted by plaintiff; that plaintiff delivered, upon orders 

of defendant I 156 gross of pens, at a total contract price of 

15,270.95} that defendant paid, on accoxmt, the sxim of $3,519; 

leaving a balance due of |1, 731.95$ that on November 6, 1933, 



*>ti>o.:. 



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-8- 

defendant ordered 50 gross of pens and plaintiff offered to dellTer 
the same provided defendant paid the said "balance; that defendant 
refused to pay said halanoe and notified plaintiff that it nould 
accept no more delireries of pens aind cancelled the contract; that 
there was due and owing to plaintiff an unpaid halance of #1»751*95« 
with interest at fire per oent from Septemher 28 » 1933. 

Defendant's answer admits the contract set out im the 
conpl&inti admits that on June 10» 19339 defendant directed 
plaintiff to ship no more pens until further notiee; adaiits the 
deliTery to defendant of the pens set up la the eomplaint and 
that there is a "balanoe of $Xt'751«95 due plaintiff $ subject to 
credits due defendant on account of plaintiff* s breach of the 
contract I admits that on ^Torember 6, 1933f it ordered 50 gross 
of pens* but denies that plaintiff offered to ship and deliver 
same provided defendant paid plaintiff the balance due» emd alleges 
that on Hoveatoer Q, 1935 » plaintiff advised defendant that it could 
not ship the pens due under the contract because of the increase im 
the price of gold! denies that it cancelled the contract* and 
states that plaintiff advised defendanty on Septesaber 6» 1933f 
that it would make no further shipments beyoad 50 gross » which 
were afterward shipped* and gave as its reasoa for its action the 
inorease ia the price of gold; that plaintiff by its action* oa 
rrovember 8* 1933^ breached its contract* Defendant further denies 
that there is any sum due plaintiff* and alleges that there is a 
large sua due defendant by reason of the breach of contract set up 
ia its eouaterclaim. The oounter claim alleges that it is in the 
business of selling* through its solicitors* items to retail mer- 
chants to be used by them as premiums} that plaintiff* because sf 
past dealings, wae familiar with defendant's sales plan; that oa 
May 1* 1933* to protect itself against the prospective rise in 
the priee of pens* defendant entered into the contract with 



, d^«X65'«Xi^ 'to ©acsXatf fji^qmr ms 1'ii;?jBliBitj oi SJfLiwo &bs &>. ..ton^f 

•cf^ a^hubis i&otioii xsifdxw? Xlw#5« Bjnaq ^uem ©« crtrfa oi tll^tcisXq 

^oviXsb boc qiria o3 bts^sl . i.:i.»Iq; sj^i aeinob ,)«tf ^enoq; lo 

asnoIXj? -bar. <s0r'> ©OfLoXjerf 9il;f Itidnl^Icr bir.c, Jr.^'.biiv.lt;;^ bsliivotc ©a.-j^j 



. JJ .,-' 'J ,. u 



erf* flOitfof: Gii 'zol no:j; s 



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t i^jiiijeX dj 

xo^'5>;>ii«/o© iiiT «iaJt«Xoit®*ax; .' Hi 

t snlXXe« to aa&ctiaijcf 

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ccmplaloant; that on Septeab«r 6, 1933» plaintiff adrlsed defend- 
ant that It would rdfUB« to ship any further pens except 50 gross 
which It had on hand» and gare as a reason for the refusal the ris« 
in the price of pens due to the Increase in the cost of gold used 
in the pen points} that on Septemher 28 plaintiff delivered to 
defendant the said 50 gross of pens; that on IfToveiaber 6» 1933f 
defendant requested plaintiff to ship an additional SO gross and 
on iToTomber 8 plaintiff refused to ship any more pons and adrlsed 
defendant that it could not ship any w)re pens 'because of the in- 
crease in the price of gold» there"by "breaching its contract with 
defendant I that defendant withheld payment of the balance "becauso 
of the failure and refusal of plaintiff to ship the additional 
pens I that defendant » because of the advancing price of pens* 
sustained damages in the sua of |6y370| the differenoe between the 
contract price and the narket price of the pens at the time when 
delivery ol the ease was duel that plaintiff is entitled to hare 
the unpaid balance of $1»624«22 credited against the sua of i6«370t 
and that there is now due and owing to defendant froB plaintiff 
$4,745. 78, -^ 

The material parts of plaintiff's answer to the counterclaim 
are as follows: Ths^t on June 10» 1933 » at the request of defendant; 
It was agreed that plaintiff was to ship no aore pens imtil notified 
to do so by defendant) that on November 6, 1933» defendant ordered 
50 gross of pens aad plaintiff offered to delivsr the s^jbo upon 
payment by defendant of the past due indebtedness, #1,751 ,95? that 
defendant refusod to pay tlie saae and plaintiff ref^tsed to ship any 
more pons until the balance was paid; that thereafter defendant 
ordered no aore pens although plaintiff offered to deliver all the 
renaining p9ns ut the contract price; that on September 6, 1933* 
when plaintiff advised defendant that it would aalee no more ship^ 
ments except the 50 gross, it beliored chat it had the right to 



ftaiY sjli Xj»B*'i»i 3ii4 10^ nosT'ST c «« ©y-ks htm tbnM mn bmS *l ri^ijfw 

<;>y" .^ .,.,^ .- ,,-:■_„ ., . ■'..., 



noqjj sBtca sfli 7:*YiX .iiw£ii*iX<i >>cu: t.aoq r o 08 

iRdi j3e«X<5TtX^ <ae»nb«iJtft>i?M/ swi* *ts«C£ edi t% i«Afoti»l''jb x^ JJnani'iAsfl; 

-•.X': — -r;.- cf. •>:-;.■. ...Mi.' irt^.v^w^^-liii) beei-vfi.i-. t*tJf»fiKiciq* neAr 



refuse delivery because the United -JtRfies had gone oft the gold 
standard and the federal government eontrolled gold; that ott 
September 7, 1933, defendant and plaintiff agreed that defendant 
should Qulsmit the entire proposition to itn attorneys and if it 
was adTisad by them that the HRA. and the fedl«r»l control of gold 
did not Titiate tht? contract between plaintiff and defendant, 
plaintiff would thereupon deliver to defendant the remaining por- 
tion of the fountain pensj that defendant ordered no more pens 
until K'oveaibor 6, 193:!, and on Noverfier 14, 1953, notified plain- 
tiff that it would give plaintiff 10 days in which to wa&e d3llT3ry 
of 60 gross of penp. ; that within the 10 days, plaintiff notified 
defendant that it would make delivery of 3aid 50 gross of pens and 
all othsr p^na ordered hy dofandant provided that r^sfendojat vrould 
pay to plsiiitiff the sum of ^1,751,95 then due and owing hy defond- 
sjit to plaiBuifi for pane previously delivered j that defendant re- 
fused to Biake the payment and cancelled the contract. Plaintiff 
further alleges that defendant sur;tained no damage hecause of any 
failure or refusal to ship pens* 

Tho- trial court based Itn finding for defendant upon tho 
theory that plaintiff breached the contract. Plaintiff conteado 
that while it served notice on defendant of an intention to brpfick 
the contract such notice ic not of itfclf c breach; that it would 
have become so if it had been accepted by defendant as such, but 
that defendant, upon the receipt of the notice, declined to accept 
it es a breach and kept the contract alive by giving plaintiff tsa 
days' ti»« in which to perform, and that within said timo plaintiff 
notified defendant by tslbphono and by written cOBJounication that 
it would perform its part of the contract provided defendant would 
pay plaintiff its past due ooligation under the contract j that 
defendant failed to make such payment, refused to socept any mors 



^T^-> >o Xei^no?> X««5fe©l «►«* fefiF AJS? «>j£i *.^ill fi»i*J X^ be^xrba eMv 

-»HXf:Xa; bfll:i'lon <f.58X t^X -fi-ifllteSiTor ho bir.^ ,r.5^X ,3 ■ziwjwvv',] Xi^iar 

•<ii6VJt;X?b fJi.cig oj rfoi/iv? iti: a'\j,nft OX ililJaisjXq ©vis biuow j.t jad;^ lljfc* 

beiltiffon Xl^rakiilti ta-%eih wX fefifi aJuiiiff $&ii4 r^aoq 'io aaoi^ OH "io 

AXuov; im:lm»i.v»:^ im-it bmk^'v^mi ta^'^i fo yK3q[ laxiSo XJ5« 

- nstefe xd SHXWft -ibxji? »Jiffe nsri^ i5:t»XSTtX.. 'to Biws. &iU -Ai^fxiaXq o^ x^^ 

^aabaiy'l&b iadi i»»xsvJXs^fc X^ff*^-*'*^'^^ s^n&q, tot I'li^fliiijXti o^t Sua 

t1:iiKi:fi E^S *ioffi$tteQ edit &eXX9«ixso ^a« Aatsiaiceq serl* ©aLsiffl cj# bosifl 

,r:noq q:MB <<:>■ X^dtfJ. : ■:ull^-^'i 

•>■'' , ... ,.;i.. ... ^ .. ', V i bSR«rf #Ti*O0 XJB.!">"- n'T'T' 

.,. ..^.. ■•. f-i -V -.^ittfti?'© orf* &pffaft«itrf f^titjsripl . ,^.. -oaxfi 



9«aifl» and cancelled the oontraet; that plaintiff* under the facta » 
had ths right to Inelst upon payment of the past due Indehtedneas 
befoTQ It nade further dellTuriea under the contraot) that under 
the undisputed facts plalablif did no I Dzeaoh the contract. 

fhe law heti.rlng on the oaae is well settled* vhere a cea- 
traetlni;: party giree notice of his Intention not to ooBpljr with lAis 
ol»ligatlon of the oontraot » the other contr^^ctlng party aiay accept 
r.ueh notice ae an anticipatory breachf und sue for dtuargee without 
vialtlng until the tlae for the coMpletion and fiafilljaent of uuch 
eontraotf by ite tenu; but In order to enable hlu to sue on such 
an suitloipa^ory brmioh, lie oust accept it as euoh and eonalder the 
contract at aa end. (S hields ▼• gars on ^ 102 111. App. 53; C antra l 
gaadlng Co» y. Olbsei^ t 306 111* App« 336*) A sere notice of an 
Intended breach of a contract la net of Itself a breaoh* though It 
may beeoBe so if accepted cad acted upon as such by the ether party^ 
yet If not so accepted and acted upon the notice reaalns only a 
matter of Intention and may be withdrawn at any tine before per- 
foraanee is In fact due. (Alyey^Ffe rgusoa Co . t. .ar nst Xosettl Brewing 
Co > * 176 tll« App* 536.} k contract continues in force notmith- 
standing defaultf where the party against whoa the default is nade 
afflrioatiTely so treats It. (Hibernian Banking Ass* a t. Ac kh&rt k 
Sgfa Milling Co. I 140 111. App. 479,) A failure te pay for in- 
stallments will justify refusal te proceed until payment has been 
siade. (Ghleago flashed Ooal Co. t, .hltsett» 278 111. 623, 6ii7| 
i?»«LCo» T. ^wssnj. 149 111. 138 J Plnoh & Co. ▼. Kew Ohio <r . Coal 
Go., X5« 111. App* 989 » S99.) 

It is a oomparatlrely easy matter to decide the ease frm 
certain letters la evidence. The record shows that In the fall 
of 1933 this country went off the gold standard and the federal 
SeTernmeat by r«^gulaticn prohibited citizens from possessing or 
using geld except by geyernment permit, aad fixed the price ef 



jtloi- r-J-^'r-' 






-5- 

gold at $31 an ounott* Every manufax;turer was oonpellsd to notify 
the governaent of the amount of gold It had on hand and obtain a 
license to use it in order to ae.nufaotvu'e pen points and oth«x 
similar artlolesy and the amount that each manufacturer was per- 
mitted to use vras limited* It further appears that the price fixed 
by the gorernment for gold increased the cost of manufacturing the 
pen pointa $8 per gross. Plaintiff sent to defendant the following 
lettsr» dated September 6* 1933i 

"With reference to your dated May Ist, wish to adTise you 
that we hare 60 gross gold points on hand which v;e can deliver to 
you at the price at which the order was taken* We hare receired 
an increase today of ^8.00 per gross more on the points due to 
the rise in gold* Ih&t is today* s price» and it does not hold 
because we do not know what tomorrow's or the next day's price 
will be* Grold is selling at 1^31*00 an ounce > and the prioe may 
go to |)40*00 or more* Therefore » we wish to adrise that all we 
can deliver to you is the 50 gross pens* 

^'Please adyise us at once whether you want the 50 gross 
to be shipped to you* 

♦•We are also enclosing herewith stateaient, and would ask 
ydu to kindly send us a check on same*" 

Sefendaat seat the following answer to that letter » under date of 

September 8» 19331 

*We are enclosing our check in payment of half of your 
inroice* 

"You may ship us the fifty gross of pens immediately. 
We will use the balance of four hundred gross which we contracted 
for and* of course* the matter of price has already been settled. 
You will remember that when you were in Chicago, you told me that 
you had purchased pen points for the four hundred gross of pens 
and naturally, any raise in price of gold will not affect our 
order. You know, of course, that we hare contracted to furnish 
our merchants with pens at a definite prioe and it would be 
impossible for us to ask them to pay mere now* If we did, they 
would simply dio continue the uge of our plan and we would have 
to give up the deal entirely^^ It was in order to prevent anything 
of this kind happen that we placed the order with you for four 
hundred gross of peas in May* If you will refer to our letter of 
April 22, you will find this matter fully explained. 

"Please send the fifty gross immediately as we are ia 
need of pens now." 

Upon receipt of that letter plaintiff's vice president came to 

Chi<$ago and saw defendant's j^esidenty and the matter of the gold 

situation was dlsoussed* As a result the parties agreed that 



M aicf€o bns hnsd ko b&d it bXo® \<3 ietants^ »j;{* to ^H»Ktirp«yfrs *rf* 

Xsm soiiQ ' < ^ ■.' 'I»a si ftX: ' ■ .i-xn^ 

ries blwo < inaffie-jsijo dtivfax&d sdaolons osXje '5*£.^ ^^^ 

Jo ' t :^i!irAl iBiii q4 Tatvsrtfi HffJtwoXXoi ©as jft»a i aabtHflitiJi 

. ©o to vn . 

*':Zi^t. y-r'-c:} sreer Tn ?Rotp y"'"^''^ -^f^? i'j; 7iv3 ^[iirir ;;r'"'* 

t , ■ tot 

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ina Gitii bni'^ IXlw iro-^ ,SS I 

x"yp>tatiti ceo £5 v. :* ferreR «8.nfX*l'' 

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-7*- 

defendant should confer T»ith its attorney In reference to the 
situation and if the attorney gave an opinion that the BB^ and 
the federal control of gold did not entitle plaintiff to osuieel 
the oontraot plaintiff would stand the loae and delirer the re- 
maining portion of the pens* Sone tine later defendant sent the 
following letter to plaintiff* dated Noveaiber 6* 1933 1 

"We hare not as yet receired the fifty gross of peas 
■«hlch you iserc to have shipped us during the i»onth of October. 
Will you pleaee ship us as quickly aa poasihle thirty gross of 
men* 6 pens and tiventy gross of ladies* • 

''Please write us immediately and let us know how sooa 

v;e can expect these pens." 

It will be noted that defendsjit in that letter aakes no mention 

of a conference with Its attorney. To that letter plaintiff* a 

vice president, on Koreaher 8, 1933* replied as follows i 

"V^e are in rsceipt of your letter of Hov. 6th in which 
you ask for 50 gross pens. 

"We wish to advise you again that we oannot ship you 
these pens due to the increase in prices on gold. .e are quite 
sure that we have talked this matter over very clearly with you 
when last in Chicago, and you were supposed to advi se me on thipi 
matter when you rec eiveiT yo iS inf ofaa t lonV" 

"We can only quote you on these pens from day to day 
inasmuch aa there is no set price on gold, and increases in gold 
vary from day to day." (italics ours.) 

Defendant, under date of Jfovember 14, 1935, replied to that letter 

as follows* 

"We acknowledge receipt of yoiur letter of November 3, 
1933 in vfhich, in reply to oiirs of ?Tovciaber 6 askin you to ship 
50 gross pens on our order, you advise that you can not ship theas 
pens due to increase in price on gold • 

"Our order of May 1, 1933 accepted by you constitutes a 
definite contract for the delivery of 400 gross of fountain pens 
at the fixed price mentioned in the contract and is not mads 
dependent on prices of gold. As a matter of fact, it was to 
guard against tha possibility of inereaBed prices that we gave 
you so large an order as explained in our letter of April 2£, 
in which we also eocplainsd to you the manner in which we conduct 
our business and the los.: that we would be subjected to if we 
could not obtain the merchandise at the price contracted* 

"The matter you refer to that we talked over when you 
were in Chicago last relates to the question as to whether or 
noc the increase in the price of gold releases you from your 
obligation under your contract. In this connection, I hava 






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■:•: ni tlPSfeXX&^tJ ***** i»l»*OH ocf IXh^' iT 

4oiriw ex xtic< a re „ aeo%? :^s« want 

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y.l c).^ i^sb moil «Heq ^P<*rf:^ no uoy ©le^P >f^ ,"**! .....x^anf 

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oqnBUi^ed_wit,hjiy afcoomeye and I have eiide a Tored to obtain auoJtt 
other" tnf onaat 1 on" as lA_*T.^A^>-klj».A''yL^ugh 

I_jM jtdTleed that tj^^^^ In bhe prioe of gold dees not re* 
^jsaAg-X^^'^TO'" yoiig eontra.o\« 

"Under the circumstances, I must regard your refusal to 
ship pens aa a breach of contract on your part, and unl^ag W 
recelT« .sfaipBient of .tjig__50_jgro8B requested/Klthtn ten days, we 
ahfiuLl take such steps tj protect our interest under this contract 
as may "be adTieed by our Rttorneys and shall hold you responsible 
for all damages incurred by reason of your breach of contract.'' 
(italics ours*) 

Upon receipt of that letter, notifying plaintiff, for the first 

time, of the result ef defendant* s conference with its attorneys, 

plaintiff, at once, had a conversation with defendant ovsr the 

long distance |>eiephone, in which it offered to deliver to defendant 

the remaining portion of the pens ia accordance with the contraet, 

and to confirm the conrersatidn plaintiff, on ]!fevdmbex 17, 1953 9 

wrote defendant as follows* 

"Confirming our telephone conversation of above date, 
with reference to the balance of your order of pens, wish to 
advise that we have taken this r-iatter up with our pen point 
mauufac Tourer* He is willing to stand by and take a loss ef 
$2000«00, and deliver the points due on your order of Uay let. 

*A.B you stated la the conversation held with you today, 
you will advise u& >*ien to make ehipment of these pens, and we 
are therefore waiting for iastructloas from yoa as per your 
letter of ITov* 14th giving us 10 days* time* 

"I am sure you can consic^er this as good faith on the 
part of the pen point aanufaeturer as well as ourselves, ia that 
he is williag to take this Iosb to satisfy your wants for this 
erd er • 

*We are enclosing her ewith stat ement of your aecpuat 
f^JL*-in,S- .^IJipyjlJ'-E past due, and upon receipt o i~ che ck w e' sHs 1 1 
ihip CLu anti ty "of pens as" requested, in~ your letter of H ov» 14th«_ 

"' ould appreciate hearing fro» you by rstxum mail, and 
thanking yon for past favors *■ * *•* (Italics ours.) 

Thereupon defendant refused to accept delivery of any more pens 

or to pay the b&lanoe due plaintiff, and claimed damages in the 

sua. ef $4,?45«43, which wae the difference between the contract 

price and the market price of pens, less plaintiff's credit for 

the II, 751 .95. 

Defendant, by its letter of November 14, 1933, continued 



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the contract In force. liad plaintiff shipped tlxe 50 groas of 
pens v/itixln ton d&ys of Xorember 14, it coiild not t>e contended 
tliat it had defaulted undor the contract. Upon the receipt of 
defendant's letter plaintiff at once, by telephone and letter, 
offered to ship the 50 groas of pens upon receipt of a check for 
the balance past due. 'defendant refused to ;iccede to this reason- 
able and proper request of plaintiff. The contract involved in- 
atallment deliyeriea and plaini-iif had the legal right to insist 
that it reoei-va peyment for merchandiae previously delirered "before 
it stade further shipments. Hor was that right taken uway froa it 
because it had permitted defendant to make partial payxaenta or to 
delay in payiaents. The contention of plaintiff that the court erred 
in holding that It breached the contract is sustained. 

Plaintiff strenuously eentends that it would hare had a 
right to refuse to deliver teeeause of the fact that the federal 
government took control of the country's gold supply, arbitrarily 
fixed a price of #31 an oxmoe for that metal, by regulation limited 
the amount that could be handled or used by manufacturers, and re- 
quired mejiuitacturers to purchase froa the federal government all 
gold used in their businesses, f/e do not deem it necessary to 
pass upon this contention, nor upon another contention that the evi- 
dence 8ho;9E that defendant suffered ao damage by reason of the alleged 
breach. 

defendant }is.b filed in this court a motion to dismiet the 
appeal of plaintiff. After & consideration of the same we are 
satisfied that it should he denied* 

The judgment of the Circuit court of Cook county is reversed, 
and judgment will be entered here in favor of plaintiff and against 
defendant in the sua of $X9751«95« 

JUD01CS¥r EEVISRS3D, ABOD JUBaiRFf HSRS IF yAVOH OJ 

piAnrriFF abd agaiirt .DrjpEifDAjrr iir ths sum op $1,751.95, 

Sullivan sad SViend, JJ,, eoacur* 



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Bttfttndants* 



(Defendants) Pl&intlffs 1» i§»xor. 



iilRROH TO CffiCWt 
OOeRT OF C<K« 

8 5I.A. 5 92' 



I^ott a ^mormm df f«r«cXasttjr« and oertain oilier ord«rs 
«&tered in a mechanio's lien oase def^fidaats Paul Holubsic and 
Jvlla Holttb^k hare eued out this writ ©f aTrox* 

On ^anuairy BO, 1916, Anton Bedn«r, a sabcontraotor, fll«4 
a bill f»T K«0hani0*e lien againai Frank J^ajar, th« ooatraetor, 
ani Paal flolQbak and Julia Kelubek, the ©wnere, as Jaint tenants, 
•t tJna praperty tn question, in wM«h ha all egad tliat there was 
dma him ttnd«7 the texm ©f a oGnt»a©t hetwcea him. and Kejer ihs 
SUM ©f |67S«95, and f©* ©xtira work and Material, $40, a total ©f 
t«ia.98. Tttfjolph Taeak, trustee undsr a estrtaia trust d©«d, and 
th© ttnktt©vn ©vnere of the notes secured by th© trust deed were als© 
aiade parties defendant* The bill prays i'©r the alXowanoe of a 
raechanlo*e lien and a fereclesure ©f the preperty. 

If^r a proper understanding of plaintiffs in error's con- 
tent ions, it is necessary t© state fully the rsry unusual reoord 
before us. On February 13, 1916, the appeaxane©s of Paul Holubak 
and Julia Holubek were entered by their solicitor, Michael P, Girton, 



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and en Mareh 9» Xfilf>» thm latter fllo^ thslr antfrnnr. On Jf^rraarx 
• » 1917» an •r<l«r waa «nt«7<»d refarrln/^ the eau0« to lla«t«r la 
Ciuuio«ry Boss, fiaid Master's eertifioattt of eYldonoo shown that 
at Vixa hoaring "Mlohaol F« airtoa* Koq^** by Otto w« JiurfonSf 
»•%•»** appoared aa '^OolleltOT for Paul Holubek aad Jvaia iiolubok • ** 
Vftfltor Kooo 99mmen»«4 the taking of teBtlnoay on February 6» 1917^ 
and eonpXetod It on J^ane a» 19X9 • The maotor foiaad that ooapXainant 
im« entitled to a li«n for CcXS.OSi "from which chould 1»o deductoA 
one-half Of the swbj of $407 p&l« by Paul Holnbok to John i» Kolnlokf 
wtaleh le 1 203.50 » laaking |408*58} from which shonld ho dednoied tho 
81UB of f4lB0 to he paid by Paul Holubek to llXlaai C* ^lppMm» doing 
buslnoBf' &e '-IppffiMn Brothora* That tbo c^aid /mton Bedaor la ontltloA 
to a lion upon th^» preatlaes of oald Paul Helubok above dftsorlb«d» foy 
tho mm of $398*&St togothor with intoroBt at tho lo^sal rato* froM 
on or about tho lot duy of Booenbor 1916* ** Tho maatrtr rseooffiended 
that ths eoet of the proeoed Inga bo divided oqualXj botv^oon Paul 
HoXub«k and Anton Bsdnar. On July 2^ 1919| ?attl Holubek nnd Julia 
Kolttbok filod nunoroua objuotiono to the jaastsr's raport, CoKpXalnant 
also flXod with the maator nwoiorous objeotlono to tho rvportt but 
th«y wor^ not filod with the olerk of tho oourt until Ootobijr a, 192a« 
Oa Augvot 27, 1919 » a atipalation wns entered into "eontlnulns and 
holding oaiaeo la aboyanoe without pr<»judloe to aithor party until 
irov«rt*«r 50, 1919, ea aoeount of eoaplalnant'o aolioltor going to 
California for hlo health*" ':«pt«abor 17, 1924, an order nmt^ ontorod 
tranof erring the couae "to tho oalondar of passed oaooo.* Oa Hay 18» 
1923, upoa notion of eosplaiaant, loaTo wae granted to file tho 
»a»t©r«8 report Inatantort "thi5,t the obj«etlon« raloed before tlm 
Xftster otond as oxeeptioas to oaid report. Tho etenographio record 
to be filed by oompXainaat vlthin five daye*** The order of May 13 
boare tho 0.1. of •o. v. Jurgone Sol. for T)of • Holubek," On 






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S»pteBib«r l«t 1W0» the eolicitor f»T aoaplalnant presented to 
tlie c«urt a yerlflea petition which roeltos that Maator in Chancery 
Roes had nerer Bigsed the oertlf leste of cTidenee* that he was no 
longer a ia^ter in ehaneerj and that the eourt should enter an order 
upon hlM to sign the eertifleate of eTiden«e» and thereupon* upon 
motion of eelicltox for eonplalnantt an order vati entered •rderiag 
Sose to sign the oertlf lo&to of oTldenoe* On Ootoher 16 » 19S3« 
upon motion of Bolloiter for ooaplalnant# it was ordered that tlw 
hearing upon the otojeotions to the report of the naater >• set for 
SoTember 1» 1923* This motloA appears to hare hoen hftard ox parte « 
On October 23 » 1953» the following order was «itered« "This cnuso 
heiag regularly called for trial and no one appearing to proseouto 
this oauee in their behalf on notion of Court « it la ordered that 
this oauae be ttnd the snaie la hereby diemieaed without costs for 
want of preeecution*" On iTo'vetaber 3» 1933 » a notioe addressed to 
"^nton PeclTal* aol« for £a4or| Joseph Kroufa* 3el« for Oertalm 
Dft8*i Ja)hn 0* Sfaterst Sol* for Cippoan Broo.t Otto w, Jurgens* 
Sol* for Holubeksp" was drafted by complainant* a solioitar* It 
stated that- on Fridayf IfOTombor 3» 1933» complainant's solioitor 
''shall mere the Court to apprere and enter an order in substaneo 
sustaining the exceptions to the Master* s Heport and ordering a 
decree in accordanee with suoh order*" iittached to the notice is 
an affidnrlt by the solicitor stating ''that he was unable to aerro 
notice upon the defendants » Paul and Julia Holubekf because he is 
not acquainted with their present address} and that a notice mailo4 
to their only known address was returned undelirered** A seoonA 
affidaTit by the same solicitor states "that he somt one Jaaes J« 
Fraaois to the last known office address of Otto ¥• Jurgens^ 
solicitor for Paul and Julia Hclubek« in the City Hall S<iuar« 
Building, Chicago* tllinoisi * * * that said Jmwo J. Trancis 
was unable to locate the said oouasoli that said Tranois made a 



tft^ ft^ee' ^f}th \ti&i»A tut 9iitr.«t sid^ sta» q4 t>«u-'0 aitii 

1©:J i',]- r*:;:,. ;. '^r viisJ . ; J..:;U';i < "Tvl , . ■ . ' "" ?■ ■ ^ 

■ Jt Mf eaosoAd ».it»tfJtfX«>r «i.i.. , . mhst»% ci«i* f»i*wh 

jkn«e»a A * . it . f- v .t i.; --fiv »'■- i>r,.- 



diligent •«arch for 8at4 ooub««i1| atid tbat this affiant %ell«T«« 
that Otttt • Jttrg«n« la not In this stat«f and that he )»« no waj 
•f lo«atlaff the eald John 0. ^attfra," goll«lt»r for 'Zijtjamkn Brothers, 
defendants* n affidarit of Traneio atateo thai "iM wont to tho 
laat kn€P>m addreea of Otto • Jurgens* lolloltor for Paul and Julia 
Holtthok, at the City Hall Square Buildlngt ChUago* Illinois, * * * 
that after a diligent search for thoBi he vas unahle to looate eithoT 
onet and that ho was Informed that Otto " • Jurgons is la :<urop«|*' that 
ho was also unahla to locate <'ator8» solicitor for i>ipjmmn Brothers* 
The not;io« is not dlrscted to Michael F« O^irton, the solicitor of 
record for the Holuheks* and frea the affidaYlts it appears &hat 
thor* was no effort mde to e^rre hia* On Horeidier 3, 1935, the 
trial court, upon notion of c9»plalnant*s solicitor, hoard 9 x imrto^ 
and without notice, so far as the record slMws, onterod an order sus- 
taining eaaplainant* ohJeotioBO to th« master** report mnd fla^laf 
that th^re ^as due eonplalnant the full amount of the lien clalned, 
Tia., I613.80. Oft ^OT«Bher 15, 1935, the trial cowrt entered a 
deeroo, which finde that thero wab duo ooaplainant from the HolubAks 
the SUB of 11,154.56, with interest froM the date of the decree} that 
on failure of the Holuhoks to pay that aaount with Interest in sixty 
days the Blaster in chancery shall aako a sale of the prcauLaes* The 
decro* was entered without serTlce of notice upon the Holuheka, 
airtea or Jurgens. The certificate of avldenoe waa not filed in tlM 
oldrk*s office until June 6, 1955, the delay heing caused, ap^^arently, 
hy the failure of Hoss to sign the oertlfioato* on ltoT&i)*er 15, 1955, 
suba e^uant to th o e ntry of the d ecreet and without notiee to tho 
Holuheks, uirten or Jurgens, the court, upon motion of the selioitoir 
for complainant, entered an order sotting aside tha order of Octohor. 
25, 1953, dlamisi^lng tho eattse for want of prosecution* On 7ehrunry 
9, 1^>^> th« Holuheks filed a ▼erified petition in the cause, which 
Stat 00 I 






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«« ♦ ♦ That on January 3« 1934, th«y were Informed that 
a dioeree had been entered against the» in the alMve entitled 
eaaae on ^CYeaher 13, 1933, Bxnf that this was the firet infor- 
oMitlon they had erer reoeiTed of the »ntTj of said deoree) thai 
upon examining the fileo and records In the abore entitled oausa 
on January 4, 1934, your petitioners discorered that ar\ld decrM 
together with other orders had ^een entered herein, all "ffithout 
any n«tioe to yoiir petitioners or their solicitor; that your 
petitioners' solicitor. Otto •> • Jurgens, has been absent from 
the Juried iot ion of this oourt during all of the tiae during 
whieh said orders and said deeree were entered* 

** * * that on October 23, 1933, an order vas entered in 
the above entitled oause, diemisein^ said eause on the trial eall 
f»r vant of prosecution; thnt thereafter, toviti on MoTsaaber 13, 
1933, without any netiee to petitioners or their solicitor, the 
o<»Bplainant caused to be entered an order setting aside said order 
of dlsaissal for want of prosecution and further finding that the 
.Vi&ster in Chanoery erred in hie report in finding that the coa- 
plainant in the above entitled cause was entitled to a neolianio's 
lien against p«tlti«tters* prenises for the sum of $255 .BS, and 
further err«d in finding that the costs tf this proeeeding should 
be equally divided between petitioners and the ecmplainant, said 
•rder of i^oremtet 3, 1933, further finding that coaplalnant was 
entitled to a lien for t613*80{ that thereafter on Moveaber 13, 

1933, without notifying petitioners or their solicitor, the 
coapXeinant through his solicitor caused to be snterod in the 
above entitled cause a d3oree finding that there wsts due the 
ooaplalnant froa petitioners the sua of (1,154*36 with 5> Interest 
thereon froa the tiae of the filing of the bill herein, and that 
petitioners should pay said sua with Intereet and all oosite of 
this proeeeding within sixty days from the date of the entry of 
said deeree, which sixty days will expire on towltt January 12, 

1934. :::ald deioree also contained the usual provisions for sale 
by a liaster in Chanoery la default of such payasnt by petitioners 
of said sua* 

** * * that ooaplalnant' a bill of eoaplaint has boon 
pending b'v^fore your honors since 1916 and waa r<trick(»n off so far 
ae the above entitled cause Is oeneemed froa tho dockets of this 
oeitrt pursuant to Bule 23 eaetion 3 of this oourt prior to July, 
1933; that complainant's solicitor had always prior thereto 
served notices of all motions in said cf^uee on petitioners* 
Bolicitor or his representative, and that no notice of the 
presentation of said deeree was ever served or oaae to the notice 
of petitioners or their solicitor until January 3, 1933* 

*'Your petitioner therefore represents unto your honors 
that said oause should be heard upon its aerlts and petitioners 
giV'in full op ortunity to present their defense; that the orders 
and deeree entered in the above entitled oauoe since the aonth of 
October, 1933, are void and of no effect because no notice was 
served by eonplalnant on petitioners of the presentation of aay 
BOtlons for the entry of said orders or said <ieorce, and that 
the saae should be therefore set aside and the hO( rln^; on the 
exceptions to the report of the Master In Chanoery filed herein bo 
set do- n for aoae day, so that petitioners rec ive a full hearing 
upon th^^ aerits* 'her ef ore petitioners pray that an order bo 
eaterdd herein setting aside said order of ifeveaber 3 aad said 
decree of srov>aber 13, 1933, and setting the exceptions to tho 
Master's report down for hearing, and for aueh other orders ao 
shall seea proper*" 



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In aufpQXi qI the petition^ two affldaTits ««r« fll«d*on« 
%X Clinton A. rtaffordt statiag that h« had b«en as&ool&tcd with 
Otto '• Jurgonst solicitor for oortaln defondaato In tho aboTO 
entitled oattoo* for aaay yoarsi thai, he eeoupled mn office In the 
saa^ eulto with hl»t ftad haa h&adXod aaoh of JuTc:en*a poreenal 
bttalnesH as ^fvell as aattera whoroln ho was aolloitort that aald 
Jurgona haa reoelred hla aall at lUO City Ball Sqaaro BttlXdlnirf 
139 north Clark strootf chleogo, Illinois i 'hrhtro affiant has offload 
for aore than one yoar laot paat}"* that Jurgons vrns prt^aant In paraon 
In said off loo aulto during a part of ths siioaer of 1933 f oocttp3rlng 
aa of floe therein at times) that affiant N^Ottld haTo had authority to 
accept amy notieoa of awtlon la the sbOT<8 entitled oaiiae froa tho 
ewaplainant or hlo solicitor for Jurgano* or ^ould bans directed and 
Informed anyone seeking to serre nnmo of th« proper disposition of 
aj^ sueh notloe» hut that affiant knows of no attraipt harlng been 
made to oerTO any notice on Jurgona la the a&ld cause "at any tlmo 
la the past atx moathSf although affiant has constantly offloed at 
tho above named aulto »" where mall has been dQllverod to Jurgeno 
during aald period | th^t affiant has r<9oalTed no notices of metlona 
to said Jargons In said eau8e» nor refused to accept any sou<?:ht to 
ho serrod on him. The name of said Otto t Jurgena* affiant b<UloToa» 
has apj^eared aa of said address la all legal dlr'^ctorlos. Tho other 
afflctuTlta made tor Christian H&rdtt statee that he was employed as 
tho law elerk for Otto -v. Jurgons* solicitor of rnoord for Paul 
Rolttbek and Julia Holuhekt certain defendanto In the ahoro entitled 
cattset and has had hlo office at suite lUO City Hall Square 9uildlag» 
139 u, Ulark Street » Chieago* '*for awre than one year lat>t past}" that 
Jurgen@» duriaf: said period* haa receirod his mall at said office 
addresB nnd oocupled an office la aald suite of offices during a part 
of the euamer of 1933 1 that affiant was authorised to a«c«»pt Berrieo 









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•f any notices of metione In tte ahcrre entitled! ff»uae fer and an 
behalf of Bfiid JurgenBf nnd that af riant has heretofore Be«n tho 
solicitor for eoinolalnant in the ahoro entitled eause la the abcnro 
naat^d suite of offices* s«%rTing notioes of notions ia the aWro 
entitled c«iu»e» hut that affiant h»s nmrBi seen hlM there "within 
the laat ulx jaontho* nor any T«pr«Sf;nt&tlYe of hie» nor ha» affiant 
aoea» re ee trod or boon infomed of any aotieee of net lone of any 
kind ia said oduse during eald period} that %ffieat hajo not rofus«4 
Beryloe of any »uch notice of motion hereint that afflnnt beliereo 
that the naaes of Otto *« • Jurgeas and of Paul Holubek hare s,pp&»T9A 
ia all legal and telephone dlrnetoriea during said period ao of oaid 
addreae* On February 1 ', 1934* the Holttbeke filed a Terified 
eifppleai»ntal petition* in -«hleh they state that slnoe the f llia^ of 
their orlglaal petition they haTo disooTored from the records of th* 
ce\irt that their aolieitor* Mlohael !• Qirton* has aoTsr withdrawn 
of reoord as their solloitort that Otto W« Jurgoas was nerer foroully 
Eubstltated ae petitlonere* 80lioltor» nor has there beea any order 
of thl» eeurt allo^'?ing the withdrawal of s^ld airten as their 
eolicitor or the gabatltution in hie stead of aaid Jurgensi that eaid 
<Slrt«a haa nerer beoa esrred by ooaplalnant with aetioea of mot lone 
nade by ooaplalnant to set sold a the order dirvmiusing the «aid caiaao 

foT tant of prorteoutioa; nor jj^s lie e^rred with any notice of a 
tfto til on to entor the d^eroot nor was he eeryod with a notice of tlM 
further ord^r that was oatsred in HoveBber» 1933 » aad that oowplalnant 
did aot a^rre aotioo of any notion on oaid Olrteai that the eertlfi* 
eate of «Tldanoo takoa before Master ia Chanesry Roar, aow on file 
In the e(iuB3« does aot boar the eigaature of aaid waster and thoro« 
fore the deoree and erdero stored in the oawee parj^ortiag to bo 
based on th« «Tldenoe eontainod in aai4 tranaexipt of «Tidenoo aro 
ToiO and of no of foot, and that no deoree could be entered in the 
oaueo until the jsaster duly certified oaid traneoript. The 



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uLi a--3i cattle -ix.ir-. sjau scalix^ JsxiJ <^m« »is;.'^s --' • • i«f^ "^6 ^X«il»# 






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iaMsUAlMiOQS tMUki htm •CA9X «t»<tak«v^oiI c. 

•f' te*i» m4 fciiiotj ae^oea M IaU^ ^a^ . stn^tH or '^o oft* hXf»^ 






•a- 

I^«tltloattrfl prayed "tliat tb«y be glran full opportunity to arg«« 
their oxoeptioas on fllo horoia to tko roymrt of tli« Mas tor la 
Chftncaryi that tha ordero ontored horola oinoo tho aoath of Ootobox, 
1933, which ar« void and of «» off««t, ho sot aold^, partioularly 
tho order of iloveaOior 3» X933, and tho docroo of ifOToahor 13, 1933, 
and that aftor tho oertlfleate of aTldanoo attaohed to tho tranoorlpt 
of evldenoo takoA hefore tho U&stor he signed by said Maotor, tto 
oxceptloao to oaid Maator's r«port bo i^et down for hoErlag." Ob 
Febrtt«ry 19, 1934, on motion of complainant* o solleltor, tho court 
entered an order dwaylag la„lot£ th« prayer of the HeliAoko, Suboo- 
quontly, upon notion of co«j>laln«it, a Maotor In ehancory w&o appolat- 
od a opeolal aM«t«r to make a ^ale of tho proaiooo, and It appoaro 
that sttoh aalo nae oade and that the report of the special maetor 
ae to the oalo wao apprOfTod. 

Plaint l«e in error oontsad that under the reoord the deoroo 
oatorod la thU oanso, the order entered on HoYOBOier 3, 1933, and tho 
order ontored on Sovo«ber 13, 1933, eottlng a»ide the order dlaaioaiac 
the c&use for ant of proiseeutlon, iaa»t be reTerood. It is plain, 
from the racord, that tho oontention of plaintiff o in error imot bo 
ouotalnod. Xo hold othorwlse would be to porslt a niaoarrlafo of 
justice* 

Tho deoreo of tJie Circuit court of Cook county, the ordw of 
VOYeaaior 3, 3.933, and the ordtir of Nor^iiber 13, 1933, oottlag aeldo 
the order of October 25, 1933, dismissing the cattae for ^aat of 
prosecution, are rererood, aad the eaUse la roMaaded with direct loao 
that if tho trial court, after a hearing, eaters an order raoating 

tho order of October 33, 1933, it el^ll than paao upon all exceptions 

to th^ master* s report, and ehall thereafter enter further aoeeoaary 
orders aot InconBlstont with this opinion* 

■■r.(m'sz, Qixii^ -D? 3rov:-jDisR 3, 1933, iiUr Q:.Dm « 

sayi:.mm 13, 1933, asTTiac - -t- -^ o» o(?roim 

23, 1933, Dir;MEs;:i»G TH-. Q •: OJ :»ii035CUTiO¥, 

BuUiTan and Trlead, JJ*t ooaeur* 



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33506 

Appell ee , ) 

▼•• 

YBBUOKT OORBOK, 

Appellant. 




OF/jlicA(fO. 




28 5I.A. ^92^ 

MR, PRESIDIKG JUSTICE 8CAWXAK DELIVERED THE OPIiilOK OF THE COURT. 



A judgment fey confession on a lease, in the smn of $1,061, 
which included #126 attorney's fees, vtas entered in favor of plain- 
tiff and against defendant* On motion of &}sCiejii.iaj:it, an order was 
entered that the jud^^ent be opened and that leave be given to de- 
fendant to make defense, the Judgment to stand as security. In a 
trial by the court there was a finding in favor of plaintiff and 
judgtaent was eritered oonfirEiing the jud^ient by confeesion. De- 
fendant appeals. 

Defendant's affidavit of laerits averred: 

**(!) That said judgment was entered on an alleged claim 
for rent asserted to be due to plaintiff from the defendant for the 
aonths of July, August, September aKid October, 1934, and for at- 
torney's fees, under a lease from plaintiff purporting to deir.ise 
to defendant a portion of the premises Icnown as 110 South viTater 
tearket , Chicago, Illinois, for a period commencing ii^ay 15, 1934 
and ending April 30, 1935; that under date of June 12, 1925 
plaintiff contracted to purchase said premises from Chicago Title 
and Trust Company as trustee under the Chicago Produce District 
Trust; at the tiiae defendant entered into the lease with plain- 
tiff upon which jud^ent was entered in tnis cause, plaintiff 
was in default under the terms of said contract with the owner of 
said property, (said Chicago Title and Trust Conipany, ^s trustee), 
and had been in default thereunder since January 22, 1932, wnich 
fact was unknown to defendant at said time. 

"(S) That on liaroh 5, 1934 pursuant to the provisions of 

■aid purchase contract under which plaintiff claimed the ri^i^ht to 
possession of said premises, a notice of plaintiff's defaults was 
sent by the vendor to plaintiff, and sixty days tuereafter, plain- 
tiff's rigiit of possession to said premises was teruiinated pursMftt 
to the provisions of said contract of purchase, and on June Jl , 
1934 a judt^jent for poesesaion was entered by tne Municipal Court 
of Chicago against both plaintiff and defendant and in favor of 
said vendor, 

"(3) Defendant paid rent for said premises to plaintiff 

during the tena of said lease through the month of June, 1934; by 
reason of the fact that plaintiff tnereafter was not entitled to 
possession of said preitises, and because possession was delivered 






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to dtfendant thereafter ty the Tenrtor, defer iont tjaid the monthly 
rent for said ^rMils«8 to sail vecrior lor the month of July, 1934 
and for the ensuing months of said term for which judgment was 
confessed in t lis cause, 

"(4) By reas n tf the faots hereinabove set forth de- 
fendant states that he is not indebted to the plaintiff in the sua 
for which Jud&ment was confessed agiAinst him, or In any sun,* 

The following "Agreed Statement of S'acte* was filsd in 

the cause: 

"(1) On July 28, 1926» plaiKtiff entered into a unit 
sales ooiitraot ^ita Chicago Title and Trust Company, as Xrustee, 
the owner of the fee for 

Lot 105 in South %ater iwarist, Subdivision ir. the iiortheast 
Quarter of bection 20, Township 39, Range 14, in the City of 
Chicago, County of Oook atxd State of Illinois, * * ■* 

*(2) On July 25, 1932, plaintiff was ii. default under its 
unit sales contract * * * as follows: 

Failure to pay the sum of >^3,490 due under the ten/is of the 
contract to and including the payment due June 22, 1932; 

Failure to pay general taxes for the years 19 29 and 19 30. 

"On July 25, 1932, the Chicago Title and Trust Couipany, as 
Trustee, sent to plaintiff "by registered mail a notice dated July 25, 
1932, a copy of which notice marked for identification Defendant's 
Bxhibit 2, may be admitted in evi^enee vrithout further proof of its 
execution or contents. Said notice was receired by the plaintiff 
on July 27, 19 32. 

"(3) On March 5, 1934, plaintiff was in default xinder th* 
unit sal'^s contract ae follows: 

li'ailure to pay iuonthly InBtall^ ei.ts in the sum of $46C eadi, 
i^ich became due January 22, 1932, and monthly thereafter; 

failure to pay cemit-annual installments in the sum of #270 
each, which beca e due February 22, 1952, and tesii- annually 
tiiereafter. 

■failure to re-psy the sujx. of #164 « SO advanced by the Chicago 
Title and Trust Company, as Trustee, on account of insurance 
premiums ; 

Failure to pay general real estate taxes. 

"On Mar oh 5, 1934, the Chicago Title and Trust Company, as 
Trustee, sent to tfee plaintiff by resistered mail a notice dated 
iiaroh 5, 1934, stating that unless trie plaintiff aade good his de- 
faults or surrendered poasesoion within 3ixty days tne Uiioi*g& Title 
and Trust Coi^pany, as vendor, would Ithout furtlier notice bring 
forcible detaiaer proceedinga for posaesnion, a copy of said notice 
rasirkijd for identification Defendant's Exhibit 3, may be admitted in 
evidence without further proof of its cxeoutioii or coiitdnts. Said 
notice was reoeived by the plaintiff on March 10, 1954. 



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esw Jnflcasjijjt xlolrlMr '.to't m-.' 'to «il*fiom sceiwans eiid' io1 fcn» 

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j to i»cme ndi 
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mik X9bau tlue'i.^ , ^ 

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"(4) On April 30, 1934, plaintiff entered into a least 
with the defendant for a portion of the premises hereinbefore 
described* .:ald leaae is part of the court records. 

"(5) The defendant entered into posseeeion of the praanisoa 

described In the leaee on to-witt the date of execution of said leas*, 

and remained in pogseesion of said preaises until after October 31, 
1954. 

"(6) On Kay 16, 1934, * * * the vendor under the unit 
Bales contract marked Defendant's IIxhlTait 1, instituted a suit ia 
the Municipal Court of Chica?-o for forcible entry and detainer 
against plaintiff and defendant. On June 21, 1934, a judgment 
for possession in faror of said * * * Crust Company was entered 
in said forcible entry and detainer proceedings against plaintiff 
and defendant. 

"(7) Plaintiff stipulates that defendant paid to the 
Chicago Title and Trust Company as Trustee, commencing on July 1, 
1934, the SUB of ^^233.75 per month for the months of July, August, 
September and October, 1954, for the use of that part of th« 
property involTsd herein occupied by defendant * * *, 

"(8) Thereafter, on July 19 j 1934, said judgment for 
possession vas vaoated and set aside and said ■* * ^ Trust Company 
thereupon took a non-suit* 

"(9) On July 28, 1934, Chicago Title and Trust Company, 
as Trustee, served on plaintiff a written demand for possession 
of the property described in the unit sales contract. Said notioo 
was received by plaintiff on July 28, 1934. >*■ * * 

•(10) On July 23, 1934, Chicago Title and Trust Company, 
as Trustee, served a demand for possession of the property involved 
herein on the defendant * * *, Plaintiff admits the fact of the 
service of said notice. * * * 

"(11) Thereafter, on i.ugust 1, 1934, said * * * Trust 
Company instituted proceedings in the Municipal Court of Chioage 
for forcible entry and d etainer against plaintiff and defendant. 
In said * * proceeding a judgment for possession was entered in 
favor of said *-!«•* Trust Company against plaintiff and defendrmt 
on Oeptember 14, 1934. A vjrit of restitution -was issued on said 
judgment against the plaintiff and executed upon him, and possession 
delivered to the * * * Trust Company thereunder. 

"(12) The plaintiff did not voluntarily surrender possession 
of the premises involved herein to said * *^ * Trust Company until 
after the issuance of a \rit of restitution following the judgment 
for possession against him. 

"(l3) Plaintiff's suit is for rent he claims to be due under 
the lease * * * for the months of July, August, September and 
October, 1934, at the rate of i:'233.75 per month, aggregating the siai 
of .^935, together with the sum of C126 for attorney's fees provided 
in said lease. I'he defendant admits that he did not pay to plaintiff 
the rental herein described for the months set forth in this 
Paragraph." 

Tliere was also Introduced in evidence the contract between 
the vendor, Chicago Title and Trust Company, as trustee under the 



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Chicago Produce Dietrict Tr^igt , and the Tendee, plaintiff herein, 
by the terms of which ths Trust Ooapany sold to plaintiff ths 
property In queetionj also the notice of (iefault served on plain- 
tiff on July 25, 1932; also the notice of d efault and notice that 
unless plaintiff made good his defaults within sixty dsiya vendor 
\70uld be entitled to terminate all of plaintiff's rights under the 
contract without further notice or demand and that unlisss plaintiff 
made good his defaults or surrendered poaoession within alxty days 
it would, without further notice, terminate all hla rights under 
the contract and bring forcible detainer proceedings, served on 
plaintiff on March 5, 1934; also the demand for possession of the 
premises served on plaintiff on July 28, 1934, 

It Is not disputed that in defense of a suit for rant a 
tenant mp.y show that his lr.ndlord»s title Is terminated. (See 
Mltzlaff V, Midland L uaber Co,, 338 111, 576; Siaafford v. Hadgee, 
231 111. 140 J Corrlgan v. City of nhloap:o> 144 111. 537.) 

Defendant contends that plaintiff's interest In the premises 
terminated prior to the period for which rent Is claimed, as the 
vendor had exercised its option to forfeit Its contract because ef 
plaintiff's defaults, prior to said period. The contract provides 
that after notice of default and the oontlnuanee thereof for a period 
ef sixty days after such notice, the contract should become null and 
void and the rights of the purchaser should cease and determine at 
the option of the vendor* The sixty days' notice was given. The oon« 
tract does net specify any particular method by which the vendor's 
option to terminate should be exercised, nor does i» require any 
formal declaration of forfeiture* it is the law of this state that 
a forfeiture may be dedueed from clroumatanoes or a course of conduct 
that clearly evinoes a definite Intention to enforce such forfeiture, 
( Morray v. Schlosser. 44 111. 14, 16#) Notice to vendee that vendor 
will expect strict compliance with the contract followed by a failure 



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of vendes to comply for a considerable period of time, held to 
be a sufficient notice of an election to torminate the contract 
in case of failure to pay. (i^tu.ckrath r, BrijtgB & Turivaat 329 
111. 556, 566.) Service of demand for poaaession held sufficient 
evidence of an election to forfeit. ( Thiry v. Jdson, 129 111. App» 
128. See also la re fraoy, 80 Fed. (2d) 9.) The commencement of 
a forelble detainer suit is a sufficient declaration of forfeiture 
of a lease. (See Clark v. 3 t evens, 221 111. App. 233, 239; also 
Carlson v. LevinsojOj. 228 111, App, 104») In the instant ease there 
is the additional fact that the vendor took a Judgment for posBeeeloa 
en June 21, 1934, and that it accepted rent for the premises from 
defendant. Payment of rent raises the presumption of tenancy. (35 
C.J. 959, See. 22.) From the facts in the case and the law bearing 
upon them, it ^rould seem clear that the vendor exercised its option 
to terminate the contract. 

But plaintiff contends that if there was a forfeiture, tho 
vendor was not entitled to rent from plaintiff's lessee until poseesBion 
was surrendered to the vendor by the lessee, that defendant never made 
sueh surrender, and tiie pa;/ment of rent by him to the vendor was a 
voluntary payment and not an att,ornment under pressure or threatb of 
expulsionj that defendant "took it upon himself to prejudge his rights 
and his duties and if he came to an unwarranted conclusion that his 
lessor's title was terminated he should not be exoused from paying 
rent to his lessor." Plaintiff concedes there are oases that hold 
that a tenant under pressure of a possessory writ or threats of ex- 
pulsion may attorn to a paramount title. 

"The eviction may arise by ouster of the tenant by physical 
acts of the holder of the paramount title, or by virtue of legal 
proceedings instituted by him, or by the tenant's yielding posoesaion 
to hi m, or by an attornment to him by the tenant while r^ .inlng in 
possession . * * ^t 7^ctual ouster of the tena n^ is not necessary. If 
the tenant, to prevent being actually aapelled from the demised 
premises, yields possession thereof, and attorns In gooci faith to 
one who has a title ppramount uo that of the landlord and also the 






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rlglJt to Immediate posfjession, thlg is equlvf>l<=nt to an actual 
oueter. * ♦ * (Itals* ours.) 

'• At t ornBieat . It is not neoesaary that the tenant should 
b« actually and pbysleally remored from, or should leave, the 
demised premises* for, in the absence of fraud or collusion on 
his part* ha i« erictad where he attorna to the holder of the 
paraiB0\int title ox takes a new lease from him under preK.sure of 
a poauesaory writ or threafca of expulsion." (36 C* J. 272-3») 

*'Aeeording to the better view where a leasee y to prevent 
being actually expelled from the dem^ised premises » yields the 
poaeeaeion thoraof and attorns» in good faith, to one having a 
paramount title to his lessor, and ? right to immediate possession. 
It is equivalent to an aotual ouster* In such a oase the tenant 
cannot lawfully hold against the title of such party, and he is 
not bound t,o hold unla,»ai fully, and subject himself to an action, 
and is not, therefore, compellable to resist such entry." (16 
B. C. L* 655.) 

"It is well settled that a tenant may surrender possession 
to the owner of the paramount title, entitl 'd to the irnnediato 
possession, and claim an eviction, without -waiting to be s ctually 
eviot*?d by Judicial proceedings? i^e„is_Jlot l>o^^„Jo defend against 
a^Jtitle which he_lmo?r3_m^^^ it is "also tho 

well Bottled rule that no recovery of r enT can be had where the 
tenant. In good faith, has attorned to a stranger entitled to tho 
immediate possession of the premises, this being equivalent to a 
©omplete ouster or eviction." (16 R. C. L* 950. Italics ours. 
Soe also Monta^e^ v. mllahaay_ 84 111. 3S6, 358 & 359; gray v. 
WMtla , 174 Pac. 239, 240 •'F~^ 

As defendant argues, '"fhe facts and oircurastanees attending 
Gordon's attornment to the paramount title-holder should not only 
legally, but equitably excuse any liability to plaintiff," On 
April 30, "1934, when the lease was executed, plaintiff had boon 
in default for over two years, and at that time the total defaults 
approximated 1^14,000. On Maroh 5, 1934, notice had been served on 
plaintiff by the holder of the paramount title demanding possession 
of tho preittises from plaintiff unless the latter made good tho de- 
faults within sixty days, as provided in the contract. Defendant 
was to receive possession of the premises on May 15, 1934, and on 
that date the period given plaintiff to make good his d efaulte 
had expired without any pasrment by him. The following day suit 
was instituted against plaintiff and defendant by thr holder of 
the paramount title, and on June 21, 1934, a judgment for possession 
was onterod against both defendants, ./hile the judgment was in 



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-7- 

efxeot* defendant attorned tc the iiolder o£ tha paramount titlo 
and paid the reat for oha montli of July. On July 19, 195^'., the 
judgiasnt for poaatjadion •-'Jas vacated and the vendor took a nonsuita 
But oa July 23, 1334, batore tho Augurjt inatallment of r.?nt fall 
due, a demand xox iw^iiediate possession was aervad on both plaintiff 

and defendant, ojaA on Auguet 1, 107,4, l:he vendor eoiranenoed forolble 

and 
entry and detainsr procssdlngs against plaintiff and def endgjat/obtain- 

'Sd a judgment for posseesion ag.^a.inB!; both on Septesiber 14, 19M» ▲ 
Trrit of rtsatitntioa issued a^^inat plaintiff and po&eoBeion i»&s d«- 
livered to the vendor thereunder* Defendant attorned to the vendtr 
for the ront for the monthH of July, August, Cepteaiber and Ootoher, 
19o4, at the rate of t'23o.75 per aonth, and it is for the rent of 
those four moathB that plaintiff aues. That defendant acted honustlj 
in the premises cannot "be questioned* He did not attorn to tha vendor 
until a Judgment for posisesBion had been entered against hia, and it 
is plain that he aade the four payments to avoid eviction from his 
place of business* In the r ecent case of Sokoley v. Uay^T j 248 H» T« 
3* 405 y whera the faots in favor of the tenant ^ere not so strong &• 
are found in the instant case, the tenant's payment of rent to the 
holder of the paramount title was justified* iVfter an axhaustlr* 
•pinlGR the court stated that it Tould be ine<^uitable tc hold that 
the Tuidsrtenant would have to submit to actual ouster and be rele- 
gated to his action for damages against the lessor, perhaps insolvent} 
that an undertenant, in a position where he fiould have his ohoiee of 
either paying the rent due to the owner of the fee in order to protect 
his possession, or of .riving up ijosseseion, or uubiait ting to dis- 
possession, and then seek to hold his lessor responsible in d&mages, 
so long as he acted in good faith his paynent of the rent to tne 
owner of the fee is a valid defense i that ''to held otherwise would 
be to violate the moat ordinary prineiples of Justice and oomraon 
sense*" 



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biijc ' !-:.Ai;>u^.;'- . Xuii oi" ^fitli jaur.eiot' biX.* '■ " ^ ten*© 



yiaiatiff raises anotheT contention, vhloh, if we under- 
stand it oorreetly, te as follows i If th« reador suad him un«lf?r 
sect 1, par. Third » of the landlord and Tenant act, he wotdd have 
%h& riglit tc set off agplnct any rent olai»ed by the vendor all 
payments macs'? "by him on Me contract j that the amounta paid ty 
plaintiff under the oontraet "would exceed nn? amount that the 
vendor mi.'^ht claim for rent, and that *henoe, if there is no lia- 
"bility on th© p&rt of the plaintiff to pay rent then there ean lie 
no Itahllity on the part of the defendant to pay rent to the vendor** 
It is a Buf:fioient answer to this rather atrained contention to say 
that it wag not raised ©r asserted in the trial c-ourt, and therefore 
cannot he urged here. Kowever, paragraph Third of section 1 of the 
Landlord and Tenant act a^>>plife.s only to a suit wh«re the owner of 
lands sues, for rent, a purchaser in possession -who hp» failed to 
oomplcte the purchase an<f the poyaeeyi on is terEiiiaated "by forfeiture 
ox nonooBplianee with th© agreement, and possession is wrongfully 
rofused or neglected to ha given upon d@BMfs.nd aada in "sritinj? by the 
party entitled thereto* It has no appllcaision to the instant case* 
\?hethar plaintiff's interpr«i&ation of parascraph Third , sec. 1, is 
oorreot, or not» need not \>s considered* 

The judipnent of the Municipal court of Chicago is reversed 
and judgment will he -sntered here in favor of defendant for aoatr.. 

Sullivan and 5'riand, J.T., ooncur. 



-3- 



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38528 



SSLMA OOWSft 

Appellee f 





CHICAGO MUSI CI AITS* CLUB, 
ft corporation. 

Appellant. 



APPHAi KiOM iroiacii»AL 

COURT OF CmCAGO, 



1 



28 5 1X592 

• IRiSSIDIHS JUSTICE SCANI-AJir I)3LIV1!B3D TH3 OPINIOIT 0? TH3 COURT* 



In this action in contract » tried by the court without 
ft juryt the issues were found for plaintiff and her damages were 
assessed in the sun of tlyOOO* Defendant appeals from a judgment 
entered upon the finding. 

PlAintiff*8 verified statement of claim alleges that 
plaintiff is the sister of Hugo Conn, deceased; that he was a member 
in good standing of defendant! that he paid dues as required by its 
oonstitutioa and bylaws "and was fully paid up at the time of hie 
death;" that defendant's constitution and bylaws provided that upon 
the death of an active member the sum of il,000 "ehall be donated 
to the family of the deceased member i" that Hugo Conn died on April 
7, 1932, while he was a member in good standing, and that defendant 
was thereupon obligated to pay plaintiff the sum of $1,000, but that 
it wrongfxilly refuses to do so* 

Defendant* 8 affidavit of merits denies that Conn was a 
member in good standing; denies that he paid dues as required by 
defendant's constitution and bylaws and denies that he wae fully 
paid up at the time of his death; states that on the date of his 
death and long prior thereto there were in full foree and effect 
certain bylaws of defendant setting forth and defining the re- 



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XltqA n« fxfib oifoO Oo9«H iailj "jtedEteia Beasaooi) oii^ 'io "viIJtHia'i 9ri;t o^ 
ifid^ iifrf ,CX)0,X=i to m: . ■ iittlxsX.. ja^jlXoo noqws-iftrii aaw 

aiil ^0 i*.,b wii^ a. v* .-:. -. i^- , - .. . -, . ^^ ^^^ j^^^ 



-2- 

quirements, rfuties, rights » privileges and "benefito of ttembera 

of the organization; that sections 14 and 16 of said loylawB ar« 

as follows: 

*Sec« 14 ♦ Dues, (a) Membors must pay their dues In 
adyanoe and obtain receipt for the same* The dues hecone due 
and payable, quarterly, on the first day of January, April, 
July and October. If not paid for current quarter before the 
first day of March, June, Bepte«il»er and December, respectively, 
they shall automatically stand suspended from all rights, 
privileges and benefits, and if not paid on or before the last 
day of each quarter, they shall be erased frosi membership* *A 
MSMB7J? VHO STAITDS ?5I3BP^FD?';D IS HOT lU GOOD STAITDIKG AITD AL30 
HIS FAMILY LOSBS IHS RIGHT TO THE DfiiilH MUATIOH PEOVIDi^iD FOB 
IK SiJC'flOH 16, IBT THS ETSFf Hl^ DISS -^'ITHIU iniTETT DAYS OP HIS 
EiSIirSTATlilEifT.» * * *" 

"Sec. 16. Death Donations, (a) On and after - pril 
let, 1925, upon the death of an active member, except as herein- 
after provided for, who at the time of hie or her decease, held 
full measibership in the Chicago Musicians'' Club for at least six 
consecutive months iminediately prior to his or her decease, the 
sum of One Thousand ('^1, 000, On) Dollars shall be donated to the 
nsmsd beneficiary or beneficiaries or the immediate family of 
the deceased member, as the case may be, according to the 
provisions contained in this section of the by-laws; provided j 
however, that the said donation shall not be paid unless the 
deceased member HiiS BSISi^f IK GOOD STATOING fOR AT LSAST HIIT^TY 
(90) GOSSEGUTIVE DAYS IMMBDIATSLY HiJGaiDIirG HIS OB ff-'lB DWATH. 

The affidavit of merits further states, inter alia, that tht de- 
ceased did Bot ee»ply with the terns, conditions, reculrements and 
conditions of the constitution and bylaws of defendant) that under 
section 14 "the dues for the quarter consisting of January, February 
and March, 1952, became due and payable on the first day of January* 
1932, and must have been paid before the first day of March, 1932, 
to prevent suspensioni" that deceased did not pay his dues for the 
said quarter until Maroh 5, 1932, and that by reason of his failure 
to pay hi8 dues before Maroh 1, 1932jp he automatically stood sus- 
pended from all rights, privileges and benefits; that on i^pril ?» 
1932, the date of his death, he had not been a raeidier in good standing 
for ninety consecutive days, as required by section 14, smd , there- 
fore, his family and plaintiff lost the right to the "death donation," 
and plaintiff is not entitled to recover. 



-8- 

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-©b trf* ip-ti-J iAikLJI^lMl ,a»*«it3 asxCtTMl a*ii»« -io i trmhltts sdT 
teur «ixi6i»iii;i9i tenoK^bnoo .a«rt©d «^rf;^ rf^ i« Tl^atoo Jo« bib b»«*,©o 
T»&iUi iisifi t;-rf<f:.'3^iP'. to ^relTCf bn.-^ neUir^r^eco:) »di 1o «noi^xi>noo 

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8CtI xloxesfc ■'■' '■''pvi->f' M^-i<^ nws<i «»v*7fl JtewaJ b/iu eSCeX 

•dJ lol oeitfb bx.. ,,>s -- ' "jnoicjnetiBua *n»T9««i ei 

-sue boo#a -{J.let>ki^oiuz ori tS£«l ,I rCoi/^M ©i^lerf 8»ttt» ftiri "«»«[ o* 

yiibfiAd« bo«» III i»<lB»« « noad }ov -.. ri art .tldoe'o aJti to a^^fc «ii« tS59I 

HOiiBtiob riJiflb" «*ri3 0* ^ili^l'x ori* isdX %lxJrri«X<j fen* viXiw^t atA ,eTOl 



TlM o&se vas tried upon written stipulated facts and 

certain oral and doounentary eridenoe. The written etlpulated 

facta are as follows t 

*!• Tbat on December 31 « 1931 » and for a continuous 
period since tbe year 1908 » Hugo Conn \vas a meaiber of the 
defendant f Chicago kusicians* Clubr a corporal ion» and that 
prior thereto he was a meubsr of the Chicago j^'ederation of 
Mttsioians continuously since March 15 » 1899* 

"£• That OA January Ist, 1932f there hecaMe due and 
paya]»le froa Hugo Conn to the said OhlcRgo Musicians' Club, 
quarterly dues for the quarter Including January t S'ebruary and 
Karoh 1932 t that the said quarterly dues for the period of 
JfiLnuary» Tebrviary and Uarchy 1932| were not paid to the 
defendant, Chicago Musicians' Club, until March 5, 1932| 
that the quarterly dues covering the period of April, May and 
June 1932, due and payable on 4pril Ist, 1932, were paid by 
the said I&igo Conn to the defendant, Chicago Musicians' Club, 
on the due date thereof, to-wit: prtl 1st, 1932, and accepted 
by the said defendant, Chicago Musicians' Club; that thereafter, 
on, to-wit: \prll 7, A, D« 1932> the said Hugo Conn departed 
this life. 

"3« That the plaintiff, Seloa Conn, was and is the 
sister of the said deceased, Hugo Conn, and if any death donation 
is payable by the defendant by Tirtue of the death of said Hugo 
Conn, the said plaintiff, Selsa Conn, is rightfully entitled 
thereto." 

Sefendaont contends '*that the failure to pay dues befors 
the first day of the third aonth of the quarter for which they 
are due, autoaatiaally suspends a aesber, and that failure to 
pagr hefore the last day of the third month of the quarter for 
vbieh they are due, results in loss of mesaibershipi that a meriler 
whtt st&uids suspended for nen-pajrvent of dues nay reinstate himself 
in good standing (except for the purpose of pE^mient of the death 
donation) by paying hie dues before the last day of the third month 
of the quarter for which they are due; that upon such payment beinc 
80 made, sueh meodDer will become eligible to hare the death donation 
paid in ease his death occurs more than ninety days after sueh pay- 
ment;" that under the undisputed facts in the case the finding and 
judgment of the trial court are against the erldence and contrary 
to the law. 

Plaintiff, in the trial court, contended that defendant 



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oi o-xisltat iJBJri- ^ x&dis®!;: « ebiiQqajL;» v,XI -.'Xis «»;;■ 

to It t&daaflp 9il* 1© dinot& httdi &tii lo \, olscf x«q 

Iftifttf ^MMB^iMi rfoi/8 noqu asrii \&ub btb •v;ex(-'t rtnht . .0 

fiol^Aitob rfla«b Hdi stacI o^ •Xrfi^il© 9«oo«>! .f '^r?; «'^ffr , oa 



-4- 

had valred the requirements of sect ions 14 and 16 and wag there- 
fore estopped fro« clalminp forfeiture. In eupport of her poeition 
plaintiff oited to the trial court Routa t. R oyal League # iifA 111. 
App« 152| reeently deolded hy thle divieloa of the eourt. The trial 
court BUstainec^ plaintiff's conttrntion and held that the Routa oae« 
gOTerns the facts of the Inetant one* In its brief la this court 
plaintiff adhered to the position that it had taken in the trial 
court and all of its points in support of i.he Judgment are b«sed 
upon the aBSumptioa that defendant waived the requirenents of 
sect ions 14 aad 16. Defendant, la its reply brief, ehov8> froa 
undisputed eTidenoe* that it had at ©JLl times enforced the preri- 
slons of sectioas 14 and 16 and had never waived any of them} that 
while the deeeasedf on a number of ocoasionsg was automatically 
suspended for failure to pay dues in acoordanoe with sectioa 14p 
it appears la each instance that the euBpensioa was removed by the 
payment of decedent* s dues before the last day of the respective 
quarter for which it was due, whioh was in strict compliance with 
the provisions of section 14. After a eareful examination of the 
record we are forced to the conclusion that there is no quest ioa 
of waiver involved ia the instaat case. Indeed, upon the oral 
argument plaintiff* e counsel was forced to abandon the waiver con- 
tention aad to taie e new position, viz., that sections 14 and 1€ 
are amblgiioue» and that therefore the provisions in the same, upon 
whioh defendant relies, should be disregarded. Because deceased 
was a member ef defendant orgauiizatloa siaoe 1908, it seems imfor- 
tunate that plaintiff should not be allowed to recover the death 
donation and we have therefore given this new contention serious 
oonsideratioa, but we are unable to find that there is any ambiguity 
as to the provisions in sectioas 14 and 16 upon whioh defendant relies. 
Ia additlea to the fact that the deceased was bound to take netiee 
of the constitutioB and bylaws of defendemt, his meoibershlp eard» 



ofttiMK^ Bfim has: ?i ba, icfoaa 1* Skismaiillup^r pAi .tifiri»w luUL 

• III ♦•V^ ijyflfc3»J__X«sefI .T ji4iJ05 iiJLTOo l&tzi ajAi oi b»iio IttialaJji 



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erf* 1© ftoliBttiaxRxv 

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:idi t»TOO« 

sllitiv . nt9b iAtAn croqr ai ft; 









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. ■■--j.vi;. ;i;r. in. .1 ^ :- .• J . '.ill v J £A« tO 



which htt had to oonetantly carry, had upon ite face ths follow- 
ing. In capital*: "WWiimS 'VHOSS DIB3 TOT^ CUJTR^.BT (^UAHT/DFi ARS 
BOX PAID KiPORl! THS FIRST DAY OB* MAIiCH, JUlJTi;, s;^PT. AFi) T)KC, 
STAJED SOSF:iIDE!Q," and upon the rsyerae aido of ths card appears, 
in oapitala, tha part of aactlon 16 heroinhofora quotod. The 
provialons In auctions 14 and 16 upon whioh defendant relies 
ar© also printed In tho bylaws in eayitalB. In the Inatcint 
caaa th<s payment hy the deceased oa Maroh 5, 193<J, of his due«i 
for the first <im-^rter of 1932 autoaatioally reinstated hiai to good 
standing In the elmb, hut »s h« died within the niaety-day period 
fixed hy sections 14 and 16 his hsneflclary was precluded from 
recover ing the •BSATH DOHATIOH PROTIFilD S-OH XS SliCSlOS 16 •« 
While the prorieioae upon which defendant reliee appear hard, 
especially la a ease llJce the present one, where the dec^aeed 
had paid his dues for a great many years, and where, but for hie 
death within the ninetyday period the "death donation" would 
have boon la force, nevertheless, the provisions la question are 
a pairt of the contract between defendant and the deceased, and we 
oannot olmnge them* 

Ihe trial court erred in finding for plaintiff, and ag 
there can be no recovery under the admitted facts of the case, the 
Judgment of the Municipal court of Chicago is reversed and judg- 
a«nt will be entered here for the defendant for costs* 

HHSiS IPCB mrn^^TIDJ^ST FOR COHTn. 
Sullivan and Priend, JJ«, concuro 



-R- 



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S8567 



AHSRICAir TRUST k SAJR3 DEPOSIT 
COUPASY, as Tru8t«6» 

Plaintiff, 



T. 



SHSBMAir GARAGE COIIPA^ et al.> 
Defendants • 



H« R. tUOstrnMAS et al.> 

(Interrening Petitioners) 
Appellants* 

HOBIET BASS et al.« 

(Interrening Petitioners) 
Appellees* 





APEBAL FROM CIRCUIT 
OOBRT OP COOK COUUTY. 

28 5 1X593^ 



MR, PBESIBIVa JUSTICE SCA19LAN DSLIVHE^D THS OPIHIOH 07 THB COURT* 



This is an appeal from an order denying appellants' aotien 
for leare to file their interrening petition and also froB an order 
denying them leare to file an amended petition* 

In 1928 three 99-year leases vere entered into lietveen ths 
Bass estate* Bross estate and Thomson estate^ respeotirelyi as 
lessors* and Oeorge Brumlikf as lessee* Brumlik assigned the 
three leases to Sherman (rarage Company* a corporation* in 1929* 
The three leases corered certain property in Chicago* upon whioh 
the lessee was to ereot a ten-story garage building* The cost 
of the building was partly financed through a $500*000 leasehold 
bond issue sectired by the building and leaseholds* In 1930* 
American Trust and Safe Deposit Company* as trustee under the 
trust deed securing the bond issue* filed its bill to foreclose 
the trust deed because of certain defatilts in payment of interest* 



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tO£9I fii «abXo£{e8soI bii« jjolbXiud arid \';if faoawoss susel bnoa 



.3* 

smd Chicago Title and Trust Company was appointed reoeiyer of 
the premiaeB. On July 8» 1931 » a decree of foreclosure and eale 
vae entered in the cause* and on March 7» 1934* lUlo J« Xlusty 
was appointed successor receiver* 

On December 22« 1934| parties representing the three lessors 
filed their interrening petition in the foreclosure proceedings » 
alleging certain defaults in taxes and ground rent* and asking that 
a decree be entered that the various leases were lawfully terminated 
and that they he set aside as clouds on the title of the lessors f 
ete* Sherman Garage Company; George Brumlik; American Trust and 
Safe :0epo8lt Company > ns trustee under the trust deed foreclosed} 
i^merican National Bank and Trust Company of Chicago* successor 
trustee) Bondholdere* Protective Committee, representing approxi- 
mately ninety per cent of the bondholders, and ten non-depositing 
bondholders, were made defendants* The petition prayed that any 
bondholder who so desired might appear and defend* Of tbe ten non- 
depositing hondholdera five were defaulted for failure to appear and 
the others were dismissed out of the proceedings* Answers were filed 
hy American national Bank and Txtist Company and l»y the Bondholders* 
Committee* The cause was referred to a master with directions to 
take proof and to report the same together with his findings of fact 
and recommendations* Ahle lawyers took part in the proceedings 
before the master* 

The master found, inter alia, that on June 5, 1930, Chicago 
Title and Trust Company was appointed as receiver of the three lease- 
hold estates and of all imcprovements , appurtenances and personal 
property, subject to the lien of the trust deed dated June 25, 1928| 
that said company resigned as receiver and Tlusty was appointed suc- 
cessor receiver* The master further foirnd that the rent in the 
"Bass Lease" was fixed at $6,250 for the first year and three months) 



«s- 



lo -raTieosT bBiaioqqs saw -^cnaqflttJO dewtT inm sId'iT «»eoiilO baa 
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X^auli iL f> 



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be*anifliTe* \IXw1^j»X ©lew aeaii&X ayoia.-: isdie^fr -;:asb « 

,8ToaaeX ari;! "io sX*ld sri* no obrroXo c..s faisittfi ^^es G«f -^dU- v*£f* bnc 

ifceaoXoatc c oq©<^: »t«8 

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-»B/!eX oeiilJ £.£1? lo loTleoei ajsj be^clo' \;n^qaoO taatl' iuao t)X«fiT 

XairoeTeq brta aaonscftdrctfqqjB tainsmevoiCiaJ: XX« lo 5iis a^i^^es bX<M£ 

]6SfiX «8S dmrX beicb bd»b Jain* wft^t lo tt«i:X exi* oJ ^yaj^cfwa t\c^'J:eq««q 



-5- 



#7pS00 for the suooeedlng nine Bonths; $10»000 for each of the 
next three years; $12(000 for eaoh of the fire yeara oommenoing 
February 1* 1933* and ending January 31 « 1938) $14,000 for each 
of the fire years eoniQenoing February ly 1938 » ajid ending January 
31« 1943, and $16»000 for each of the remaining eighty-four years; 
that the rent was payable quarterly in advance j that the rent in 
the "BrosB Leaee" was fixed at $3«125 for the first year; $3»750 
for the succeeding nine months; $5,000 for each of the next three 
years; $6,000 for eaoh of the fire years oommenoing February 1, 
1933, and ending January 31, 1938; $7,000 for eaoh of the fiye years 
comisenoing February 1, 1938, and ending Jantxary 31, 1943, and $8,000 
for eaoh of the remaining eighty-four years; that the rent was pay- 
able quarterly in adTanoe; that the rent in the "Thomson Lease" was 
fixed at $5,000 for eaoh of the first fire years, $6,000 for each 
of the next fire years, and |8,000 for each of the remaining eighty- 
nine years; that the rent was payable quarterly in adrance; that 
each of the three leases provided that the lessee woiad pay all taxes 
and assessments, general and special, levied or assessed upon the 
premises or upon any buildings or improvements at any time situated 
thereon, or any levied or assessed upon the interest of the lessors 
in the lease during its term, all to be paid before they become de- 
linquent and in any case in apt time to prevent any sale or forfeiture 
of the demised premises f that each of the leases provided that the 
lessee would construct a new building, not less than ten stories in 
height, on the premises, suitable for mercantile, offioe, garage or 
commercial purposes, etc.; that by a certain section in the Bass 
lease and also in the Bross lease it is provided that if default 
should at any time be made by the lessee or his assigns in the pay- 
ment of the rent t^hen due and such default should continue for thirty 
days after notice in writing thereof to the lessee, it should be 



Mt4 lo dooB lot 090, 0X$ \miJaom i>txLa ^J:|)d9O0Jjet &di lol ^^^f^ 

ifo<ae tol 000, ^X4 t^9l «X£ -^^^hbL s^lfms i>na «S£^X tl ^Airxtf9|;^ 
XXatfosL iAi[:i9[& bxis tS^CI (X "^ijau'xcfd'i: B^i^nsiaaoo axi^^X •Til MU.!^ 
|M>^X i»c}-v3rfiii9 T^ainism^t ed^ lo ifose xo^ 000,8X^ bfta ^^^91 ,X£ 
n^ ia9'i sdi isdi leoasivbjs ai xiieixsivp eliS.^XBq, B.av ^fi-'i: siltf iedf^^; 
94r«€| iTsa-^t Jatll sxi* not 3SX«£$ *ii bexn aew "ecissa eao^fi* •££! 

Q00tB4 bus t^^^^-C ?-JtS xiAunsT. -^Ibam biu? , - <r v'x«yatf®'3: 8aJtonj&£yB^9 
-■^K ■JMf '«»^ *^^ ^^^ laiaex ii/ol-^«n: is ,n^ui«iiiei add 1:o j^obo lol 
ftSir "soiseJ: nooxaoxlT" sd^t ni Jri»i oilv " '. . aonavbjo x:i ACXxa.*XJ5tfp »X*|^ 
daa9 lol OOOtdl tat^sex ©vil iBilt mii lo ^osj® xqI 00u«S# i-a baxU^.. 

iadi jsonsvbfl nl xXteiiewp 9X«r«X=*<I sistj ;tHffi-£ siii ;Ji5£[ci ia'su?a''j ^'I'l^' 
»3to* XXo ■v»<I bXwo'.^ sesBsX sri^t ^l-aifJ htt-xvotq eee.saX e^'Oit itdi lo Moj8« 

Bve)9a«X ?rf^ "^0 d-s^T'tnt orf^ Kocrc b(jnr©.t;aj3 lo beivoX x«9 'to ■tJSootcerf-J 
•«k »jitr>nf:' , •"•■ i' 3^1 \,i%xt^b ©asoX ®il# «Jr£ 

9dt ialt beblvotq aeaasX edi to doa^ # •'•r-< ;«9?;l:Hi»iq b©«nxBii*b eA* t© 
ftt (I«J;t«^« eft* KBdi ^b^/ -"' * -nlfaXiMC .jf ■>- i'oU'niutioo hXwow «»«a©i 
^ 9J^ftiM% «si«nflo icXi^rm-i ' '' - Xtfe^iua ,a98iKS©irq ©riv*- mo ,i}ii,^,jt»M 

J It; ■' iiidi bf}btToi<z -'- '>i"'" n^ <>sXi- bcj» daa»X 

-X«q 9di iil analaaa ?ixrf tto soac;i.I oxii 40' stsia »d omii xk» *« bXiroiIa 

;*ii^* lo'i oiMil^aoo blBodo iiaaljb rfoua baft 9Ufe ««ii» *it»'x wA* *o ^n»'" 



-4- 

l&wful for the lesBor bo declare the term ended* etc*; that the 
rhoason lease contains a similar section* The master further 
found that at the time the petition of the leseors ^aa filed the 
lessee under the Bass lease had defaulted as follows} Install- 
ments of ground rent of ^3»000 each* due Hovember 1, 1933, February 
1* 1934 « Ifay 1» 1934, and August 1, 1934, respect Irely, and that 
nothing has since been paid thereon; in payment of taxes as follows* 
A bal&ncs of ^ 2, 994 #13 on the general real estate taxes for 1929} 
a balance of $501*86 for 1930; a balance of SU, 277*28 for 1931, all 
i?ith penalties and interest thereon, and a balance of ^^1,740.13, 
with penalties and interest thereon, of the first installment of 
the general real estate taxes for 1933} that the second installment 
of the general real estate taxes for 1933 is |2«720«52; that at the 
time of the filing of the petition the lessee under the Bross lease 
had defaulted as follows: f<l,000 baleuice on an installment of 
groujid rent of $1,300 due oa August 1, 1933; installments of ground 
rent of $1,500 each, due on JJoTsmber 1, 1935, i'ebruary 1, 1934, Hay 
1, 1934, and Aiigust 1, 1934, respectlTely, upon which notching has 
been paid; in payment of taxes as follows: A balanoe of v650«33 
on the general real estate taxes for 1929; a balanoe of #l,092t02 
on the 1930 taxes, and a balanoe of $779*05 of the first installment 
of the 1933 taxes, all irith penalties and interest thereoni that th« 
second installment of general real estate taxes for 1933 is $1,394*35( 
The master further found that by reason of the aforesaid defaults "a 

notice was prepared by said Robert P* Bass, et al*, as trustees, 

Joy 
and^John A. Bross, as lessors, dated August 29, 1954, pursuant to 

the prorieions of said leases; that said notices were signed by 
said lessors and related to said defaults in rent and in the pay- 
ment of taxes) that said notices were addressed to George Brumlik, 
Sherman Garage Company, Kilo J. Tlusty, receirer, American Trust 
and Safe Seposit Company, trustee, and to All Whom It May Concerni" 



ojrf? inxlv «hsbn6 iRia* Bits »T*l3sf> c Iwlnwiil 

9di bslil. .. -. :C£iii&xi ©riir 9.,;. Ms bOut^t 

"llsianl tewoXIol axj I>©*Ios!l:£v5 bad 9&r.8X pb^^jS. .e'S ^sftui; ssseftX 

;.:,.. _ ..... •=>-- '■ ...-.,. ... .... ,... , :rf A 

t<5X«0"w/ '.0 9onf.Xriv. .h on.:; ,auL.ivJii;J tfae'is^^fii bme, t3&£#X«Jn»g; iltfJbr 

;^n90iXXn;fBnl .'^noose oiiJt *J3XIJ i i.iStfX lo^ asxa* s*a#a« !«♦*£ X^Ttsnss »tft 

9ri# ia iMi 4Sfl«0gf,S^ jji: f.SCX xol eexBi e^fl^as Xsotr XB^xenaB erirf to 

88fl&X ssoiff axid idftflw esB8»X ©xti* noltfi^en &f£* lo S^-tXil off* to oafi;^ 

ro ineESllsiisnl rrr. no 9on;3l««f OtK>,X't :«woXXol Bi< fo»^XKi3t?.b f^ari 

^niioia lo c;^nefflXIs*3Xii i5f.«X ,X #ftyswA ei& huh ©oe,£$ to itiiea olisrdts 

. 44i ,*eex tx T- Jjio.,''. ,f.c.CX eX ledHovoIr'. rto «>it;l> tit&ii# 0Ue<X<5 lo dn&i 

cMl aiiliI.;on Aoidv noqu tXlt>rl4o»%a&'X «^SSX ^X ^vju^iSi'- bass «^£«i IfJ 

; eoxi^X . .-.sT^jiii to ^n»iiEr^(5t£ «i « bisg H0«<f 

ao»St^rX!^^ "to eo."«I^-c.^ i5 ;e2f?X 'lot q«x;j^ ©i^vJ-ii© Xx^sx Xiiitsnog 8iS# J* 

;^c»BXX'iiuri J«7.i y eOtSVV. io fionisXstf jj fo«« to^x®* OS©X S'Xl* H* 

eii* ii-^-.;^ jnoBiarii ;JeP-i6*«j; biw. aeirJX«»inoq dikff Xli?. ,Q©xjB*r fifiCX *il* 5« 

0* iuAUP.xUii t^sex , ^ .. ;j ,.; .-.;.>. ,^aoaa»X as ,a80'£ff .A tisioZSjUm 

-Vq ori^ ^' ' ♦^n* "^ '-i eiiXips'U'b ixi-^ 0* be^jsXsi Ut)i yroaeaX fciaa 
,j(iX«i;i« »a'io*-' "^ .,.-..- .-3.^ aftoi^Oii biaa ;t»ji» aaeauait to *£(«b 

•fffMoseO x>M *I omCV XXA 0* btui ,»»««m# ixns^poO ;»Xii«q«a ttsfi Am 



-9« 

that Bald notices were duly eerred upon each of the persons to 
Y/hom they vere addressed and were also duly seryed upoa /^jaerleaa 
National Bank and Trust Coaipanyt as successor trustee} that there- 
after said d 6f aults not haring heen made good ';7lthin the period 
prescribed hy the lease the lessors elected to declare and did 
declare the deaised tern ended. The master further found that at 
the time of the filing of the petition the lessee under the Thomson 
leass had defaulted as follows j Installments of ground rent of 
§1,500 eaoh, due on January 1, 1934, April 1, 1934, July 1, 1934, 
and Octoher 1, 1934, respectively, upon which nothing has been paidf 
In payment of taxes aa follows: A balance of •" 711*89 on the general 
real estate taxes for 1939; a balance of v613*30 for 1930 | a balanoe 
of $244.19 for 1931, all with penalties and interest thereon, and 
a balanoe of $870.11, together with penalties and interest thereoni 
of ths first inatallmant of the general real estate ta;ces for 1933 1 
that the second installment of general real estate taxes for 1933 is 
01,360.31. The master further found that by reason of the said 
defaults and pursuant to the proTislons of the lease a notice im» 
prepared and signed by l^ew England Trust Company and Orrin 0. Wood, 
trustees, as lessors; that the notice stated the defaults (hereto- 
fore referred t©)j that it was addressed to George Brumlik, Gherman 
(Parage Company, M. J. Tlustyt xeoeiTer, Aj&ericaa National Bank aad 
Trust Company of Chicago, successor to imerican Trust and Safa 
Deposit Cosqpany, as Trustee, and was duly served on eaoh of the per- 
sona to whom it was addressed and was also served on .jaerioan Trust 
and Safe Deposit Company; that thereafter said c sf aults not having 
been made good ^jvlthia the period prescribed by the lease, the lesdors 
elected to declare and did declare the demised term ended. Tlie master 
further found that "neither said Sherman Parage Company nor Georgo 
Srumllk, nor the receiver appointed by this Court, for said leas*- 



nsoiff^w-' noqu bsTi'^a \X0i> ©el.^- i^s &d8!e&'si»bjB ©n©v y®^''^ laoriw 

boiieiq cri^ tiM^iw bOQg sb&m nsstf sfi^Vjsxi doja ai"-lij«*!t» 1^ bi^ss i^itj?) 
bib bnB sislosi o^ fce^oeXs 8Soao»I sri* ©o.f5ei 9iij:«r xd i>s«ri'£OB?>iq 

... ... .. ' .... ;: ruy1--;« :<Atl ■-- '-s x 

\btsq ai>Oi. i«:i ^iilr.. -i: ^iyiX- ,-iOTiJv^Q.as^ t/^uVi , .- '-titfoioO J«m) 

X«ien0S feii*^ no Ga.Il', :avroXX«; >'K©ErY;«q ai 

e«n«I««f J3 iOeei reel 0£«fiX#ii; 3to 9oxisi>.(i « seSt'X 'jeos a&x&^ r.'«B*a© X«»a 

fcne ,aoe"Xfcr;^ *a©S9*ri iJlsncc Xi« tX^^Si tot ^X^I^I^Sv lo 

^: asxei sJ^^ia© Xs©i Isteaei^'m^^ lo ^e;5«XXad-ei-ii #8^X1 £xt# \9 

b1 S<5«X 10*5 Bsxi;.) viiir. I3isa©«& ^o d^asBlIX*4©ai: focoof^a tdi i^sit 

bim edi xo no J^HiH exiT *XE»06C,X| 

»!sw §«i3on j« **riAr . . oiiUvo-sci a^^J" oi *Hij|f«'XJtf<i &etc o*XaiaTt©6 

..z<^dP. ,3iiXfiu;'£fI »ano&i) o;t bsaeattbExf: . : . : ( 0^ b0*sx«lea *to3t 

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aTOfassX e«£* ,a?:/;eX ndt \<fl bdtfltoa&^ci ''^'•i' : ■'':: fjooc ef>flffl iif»«»^ 

tSS0»i) iea X^iA^^O B&^ifiC Oisffiisifa dtisa ^tsiitiskr" iaif;! [^fwol 39x1^ tin 



.6» 

hold estateef nor the trustee * * *, nor the "bondholderB nor any 
of them, not' eny of the other defendants to said Interrenimg 
petition hay? tendered payment of any of the auraq 'ihloh are In 
default and no redemption has "been made by any person from such 
default." The laaater further foimd that the interrenia^ peti- 
tioners, as a group, fead mpc^e th« following offer in open court t 

"1. To pay the sxim of :' 40,000 into court or to the 
reoeirer of t]i« court as the Court may direct to he diBtributed 
pursuant to the '!ireotionp of the Court to and ajnon/? those 
interested in the leanehold or to such of then as the Court 

shall find entitled thereto? 

'*2* To assume and agree to pay all unpaid and future 
accruing taxes, which in said laaoes the lestjes covanantsd to 
pay , and 

**3. To release and -waire all claims ^hich they hare 

against said leesee, ^Iherman Gt^rnge Corapany, and all persons 
holding under it or as successor to it» 

"PTOTidedt howeTer> 

"I* That, upon the makiag of suoh payment > the Court 
entf^r a decree vhlch shall find that the term of ee.ch of se-id 
three leasehold estates has heen properly terminated and that 
there is no farther rlc::ht, title or interest in and to said 
three per eels of landj or the lauildine, or any part thereof in 
said C-eorge ;3r'.Mnlik or in said Sherman Oarage Company as lessee 
or in any persons or corporations holding under him or it or us 
successor to eith'=;r of theaj 

"2. That the said decree of this Court shall ouiet the 
title of^ the gsaid three lessors respj^ctiirely in said land and 
building! 

"St That the said deoree shall direot that all money 
la the hands of the r3ceivar of this court, liilo J» Tluaby, 1'333 
hie expenses and proper fees as receirer, and less the sum of 
i^2,400, 'Which iatoor sura shall "be in aJdl«iou to the v40,000 
offered and mentioned in Paragraph 1 above and shall be used for 
the name purpoedf3 15 tharein sat forth, and all personal property 
in hie poBseesien as such receirery including all office fiu-nxture» 
equipmeni and isujpliaa, aid all laajhi.aery, tools and other equip- 
ment used in the operation of the garage and repair shop, in s^iid 
doralse'l premies, and all merchandioe on hand, including tires, 
gasoline and oil, and all bills and accounts receirable, be paid 
and delivGred ovor to the o^^.d lessors .-'.a a group, and the raid 
lessors shall assume all accounts payable of ths suid recaiver in 
the oparation of the garage liUdin«ss in the dsaaised premises? and 
that euoh delivery and settlement by and with said raoeirer be 
aials al the time of the dseree** 

The master estimated the expected net income from ihe premises at 
$48,60C annually, and th:>.t there ahould be available therefrom for 
past due indebtedness on gro\md rent, taxes and for dividends, the 






■^. \BblodhtiOd edi tcoc « " j ^a£*^*0O b/o£{ 

galnevTslnx 61x58 od aittp.bn^'ifib tax ? "^o 

rfoiXB noil noa'csq -^na \:ef eJ&fic need" ntiti noiJq^r lbf|4i /^Xtf«^t 

ejl* o^ TO ituo^ oiai ^ Jiss ^di y^sq, o'- «X 

QYBd \,&Ai doidn qolxsLo lla avi^iv has- ^?>«#Xst 

,^©Yswo£l ^babJtvoT*!'' 

txvoO oxiw t*ndci\aq fi- ttiJiBxa &dt flO'.-^tr ,,1«.*fT , X" 

btse lo doo "lO ta-.t'i'i J bntl Up: 

iedi f.ns bt ii^inimxei , at)&a 3.^\d 

bi*»a o^ nn.-n nx ^asisiiii £0 eX*i^ ^i£:i.ix H'txiii^ 
Hi looiori* f~"r ^-hj:- to e/riM-tird" -••i?i to tbt>BL to 

ai- -io jfx.r 
:oq;ac'v TO ■ 

.xri,3 to ©e-xoe-b bi?a axir d";rii 
. vxio^qatJT si'CtusX fcsrcilj rx'r-3 



tt4» :io ix TO 





■:di 




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•xo 




ToaRcooiifa 




H 

to 9ini 

i^tfkbLta^ 



^O 



«» 



bi 



rib LLBfiB ee"x- 

. .isoaa ips asel "^eii' 

fi b©HOi 
< ' : ;1;^ &" (.c - . 

X ^tsevie-jet tvaUH b& noie 

i :•. -n- XI.,} ::.-.3 .;>::. iX-,-; >;n 



IXi^ biis tile 



baietto 



»« -X0YX 



3fx» ^a an 






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sum of $13 t 600* The aastar further found! 

**rhc)t where i.3 past due on g-o'ond r8n(» apjjrexlttately 
t40f000t "whioh If amortized over a period of five years would 
reduoe the net r'Sturn vo ajti^roxuaately v'^>>6'J0« 

"That a group of inrestors haro aabiaittad a proposal 
aulistanfcially emibodyiag the following provisional 

^(a) That a nevr lease he granted to a new corporatlea 

BUhBt':'-nt;iplly under the termti and provisionb and for the 
unexpired period of the previous leaseei 

"(h) The InTestors to pay to the owners of the fee, 
the full aHiOunt of general tsxes nov: p&.t;t di^e, including general 
taxee for 1933* for ^hioh aaiount the investors will take eix per 
cent preferred stock Bxif^ approximately one-ouarter of the cozjhon 
Btoek) the oalanee of the eoKunon stock to he issued to the holders 
of the honds secursd hy the leasehold icortgage. 

"That there heloi only approximately ,5,600 avallahle 
for dividends on preferred stock and on cosamen stook, it would 
follow that there -o^^ld "be »^v liable to bondholders appro:.:!- 
■ately ;|3,'>J0 per year in view of the fact that the ground rent 
is increased by #5,000 In the ya- r 1935} that unices tihsre is a. 
corresponding increase in income coininenciBg with 1939 there would 
be nothing availpble therer.fter for the holders of the bonds - 
at sunj rate, it ^vould require in excess of ten years' tine for 
the bondholders to realize out of diviisnds the rinount \7hich is 
now available at; a rer.uit of the offer of the owners of the fee 
to pay the sum of |40,000 in cash as herelnb'^^fore .Met forth." 

The aaster further fotmd that all of the material allegations in th« 

intervening petition had been proven | that the equities were vitk 

the intervening petitioners, and he rncomraend ed s 

^"That a decree be entered herein in conformity with the 
prayer of said intervening petition; 

"♦That the proposal of the intarvoning petitioners as set 
forth in this report be eocepted { 

"That the Court retain Jurisdiction of this matter for 

th'i purpose of dfitorainine; the distribution oT th3 funds v.hich 
will he available r=; a result of the proposal of the said inter- 
Tenlng petitioners, ?jnont- such of the partit-s as may he entitled 
thereto*" 

29^0 objections were filed to the master's reportt The deoreo found» 

imter aliaa that the offer of settlement was '*a reasonable and fair 

bauiu upon i^hich a decree should be entered in this cause} that goiA 

oum of ^40,000 should be paid to Mllo J* Tlusty, as receiver, to 

%e distributed by him according to the further order of this Coart| 

» « * that Mllo J» riuaty pay and deliver to said intervening petl« 

tleners or their duly dealgnated agent, all money in his hande loos 



^'^- 



Xa>c.o^O'XQ a 



:u'i .. 



i^swo'i xeiiiticiil -gmimasi %r£f .(SO^t^lil le aam 






m^^BiSus 









TAfssQ a&it0<f e' 



.r::;r6Eixotqci.« y.lBt j-fftscr s-xcift ^ftftT*" 

-'%<-. r'r> hrf- ■*.' '•i n .•,■■ .■ - ^ ■", 



blue i!'.^l d^' :'■ ■■OQ ^^liiv^^ii. ivi 

Bl rh iO J' 



.;• -,-,T fi-n ;! l^r* 



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o .n^ j.ui. 



t bp ^^?;rn^■ 












<«i'i«ino.t«i* 






^lii'l ■ ; .fr'*;/ipa;:. ^ _ _ .. .•i....i.': -./;;• .-tin 'in 'f-^'i-' 



-a* 

his sxpensas as receirer and less the said svim of |2|400 as afore- 
said (to be paid for the expenses of the Bendholdere' Goumittee) 
and shall also deliver to said agent all oi the perbonal pxopexty 
in his poeseasioa as such receiTer^ including ollice fuiniturei^ 
equipment and supplies * and all imiohineryt tools and othe;L> equip- 
ment used in the operation of the gaxetga and repair shop* in sidd 
demised premises^ and all merohandiee on hand» including tirea* 
gasoline and oil) also all bills and accounts reoeivuhld^ and that 
eaid interrening petitioners assume all accounts payable of tha 
said receiver in the operation of the giu-age busiiiea.? in the dozoisad 
premises » and assuiao all unpaid and future accruing t^ixaa -whioh^ 
under said leases » are to he paid "by the lessees and relcsase the 
lessees and all those holding under them or as sucoesRor from ail 
other liabilities.** The decree confirmed the termination of the 
three leases* set aside and declared void the trust deed securing 
the $500»000 of leasehold bonds* confirmed the pagnuent of |40»000 
by the lessors to he distributed to the bondholders as the court 
should thereafter direct, and ordered that the property he turned 
over to the lessors by the reeairers. The decree was entered 

Uay 29. 1939. 

On June 18» 1935, a verified intervening petition was 
presented by appellants, "'bondholders holding bonds on the trust 
deed foreclosed in this proceeding « * ^ laost of your petitioner* 
are depositing bondholders with the so-called Bondholders* Pro- 
tective Committee." The petition prayed "th-at an order may "be 
entered herein vacating and setting sside the decree of forfeiture 
heretofore entered herein and further that ?r. ordsr may be entered 
dismissing the intervening petition of said Lessors herein; that 
an order may be entered herein lor a rule on the Trustee, its 
attorneys, said Chicago Title and Trust Company end said Dayton 
Keith and s&id so-called bondholders' i=rotective Coiuaittee who hare 



«p- 



-^ijJiJ« -rafCi-o bn..M nice J ,-<it©|iMq^^UE# ij0» i a© iXci^we foaa ifiiSK.qi«p» 
bXj-i^ J i^^feTi#?T5i S'XW to «©i4.«ia«qo fed* tti fesau d'nem 



:oV.vJt d ' t : c^i-JjC ooi 



lis liio'ii :o;ia.^ouii 

feOTd^Jns asw 9e'i5»b axil 



.cvlT^v^jt biac 

i . . ^ oriv i.i.G on-c KCfeiisej. 

.::XidJ3fX -vjii^Jo 

•'^'labio T . .ji^lRgTiert* &Xiioria 

»estx ,9S ^«M 



Offv 



cilblod 



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^xcJiii.i-.o. oeXXtfo-ow bX*»8 fcn^ xfi'iiX 



appeared in thie cause » to account for any and all moneye ifhloh 
they have reoeired from the premises herein unlawfully ejid im- 
properly and that your petitioners may have such other and further 
relief as Equity may require and to the Court shall seem meet.*' The 
petition is signed* "By Max Biohmond Kargiuui Their attorney and 
duly authorized agent in this hehalf (>*' and the affidavit in support 
of the petition its also made "by hl«« An order was entered denying 
the "motion of Max Richmond Kargman as attorney for a group of bond- 
holders for leave to file an Intervening Petition. •• Thereafter, or 
June 20* 1935 » a verified amended petition was presented to the court 
Tbj appellants » ••hondholders holding TBonds secured "by the trust deed 
foreclosed in this proceeding, * * * most of your petitioners are 
depositing bondholders with the so-called Bondholders' Protectire 
Committee*" This petition is signed* "By M&x Hichmond Kargman Their 
attorney and duly authorized agent in this hehalf ," and the affidavit 
in support of it yi&s also signed hy that attorney* On June 22, 1935| 
the court entered the followlag order t 

**This oauee coming on to be heard upon the motion of Max 
Kiehmond Kargman, attorney for H» R. Halterman and others, for 
leave to said H* R* Halterman and others to intervene herein, 
and to file their amended petition hereinj 

"And it appearing to the Court and the Court doth findi 

•l« That due notice of said motion has "been served upon 
all parties of record herein, and that a full hearing has been 
had with reference to the matter set forth in said amended petition 
before this Court, as hereinafter more fully set forthj that the 
Court has read said verified amended petition and has heard argu- 
ments of counsel} 

»2« * * * 

"3« That on December 20, 1934, an order -was entered herein 
granting leave to Robert P. Bass, Saa Bass Warner and Harry C* 
ISdmonds as trustees under the last will and testament and codicil 
thereto of Clara 7* Bass, deceased } John A. Bross, individually, 
and New England Trust Company, a corporation, and Orrin Q» \ ood* 
as trustees under the last will and testament of Arthur C» Thomsoni 
deceased, to file herein their intervening petition as owners of 
the fee title to the premises Involred herein} 



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*'4« That ozif to wltt fetruary 25, 1935 » a hearing via,B 
haudi on said interyening petition and the answers filed thereto 
after serTlce of sumaons on all neceseary parties « and that said 
he&rlag was continued to March 8; 1935; that said hearing was 
reset for Karch 25 » 1935 j that on March 25, 1935, an order was 
entered herein ordering that the intervening petition hereinabore 
referred to, together vdth the anerere and repllcationB filed 
thereto, be referred to one of the Masters in Chancery of this 
court trho was instructed to take testimony and make a full report 
as to the findings, vfhlch order also prorided that no fees be paid 
to any attorney in connect io» with said reference! that full hear- 
ings were had before the Master in Chancery as to the merits of the 
interyening petition and the offer made by said interveners ^Ith 
reference to the termination of the leasehold estates, and that 
the said Master permitted evidence to be taken as to the fairness 
of other offers to reorganize and rehabilitate the said leasehold 
estates and that after various hearings extending over a period of 
Bore than thirty days, the Master issued his report and there were 
no objections thereto; that on, to wits May 20, 1935 y full hearing 
was had before this Court on the Mc-ster*s report and on the motion 
to enter a decree la accordance with the findings hereof, and that 
said hearing was again continued to May 29, 1935, for the express 
purpose of permitting counsel for the present petitioners to 
present his cause to the Federal Court for the ?Torthern District 
of Illinois in the cause therein pending entitled *In the matter 
of Sherman Oarage, No. 59257,' bein^ proceedings pending under 
Section 77-B of the Bankruptcy Aot> as eaended, V7hich proceedings 
allege to involve the property described in the decree of foro- 
olOBure and sale entered herein) 

'^S. That on May 29, 1935, this Court was informed that 
the Hon* John f* Barnes, one of the Judges of the Federal District 
Court, dismissed the petition of the petitioners, H. I^« Hstlteriaan 
and others, to reorganize the property involved herein under Section 
77-B of the Bankruptcy Act, as not having been filed in goo-i faith, 
and that this Court was the only Court having jurisdiction of the 
parties and the subject matter before v^hom questions involved herein 
were properly pending; that on said date a decree was entered herein 
which provided, among other things, for the termination of the lease- 
hold estates and that the receiver heretofore appointed in this cause 
be directed to deliver to the intervening petitioners, owners of the 
fee, possession of the premises involved herein upon payment to the 
receiver of the cash sum of §40,000, all in pursuance of the Master's 
report and recoiamendations and the evidence and testimony taken in 
this cause} 

"e. That Max Pichnond Kargman, attorney for H* H* Halterman 
et al., v/as present in open court at the time of the entry of said 
decree on May 29, 1935, and had full knowledge of the contents there* 
Of and participated in the hearing had thereon* 

'*7* That a motion was made by the American National Bank 
and Trust Company, on May 29, 1935, successor trustee under the 
first mortgage IsaBehold trust deed involved harein, for an order on 
the receiver to turn over the said sum of §40,000 paid to him on 
May 29, 1935, by the Intervening petitioners, Kobert ?• Bass dt al« , 
and also such other funds as may remain in his hands for purposes 
of distribution to the holders of first mortgage leasehold bonds 
secvired by said leasehold trust deed, and that said motion was con- 
tinued at various times to June 4, 1935, at which time a full hear** 
ing was had thereon, and all parties in Interest were ordered to 
answer or file objections to the petition of American National Bank 
and Trust Company of Chicago, as successor trusteei 



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-11- 

■8. That on June 11 i 1935 » a full hearing wae had on 
said petition and the answers filed thereto » at which time 
counsel for petitioners, E. R. Halteraan and others, were 
present, and after a full herring upon the merits of the 
petition of the said trustee, an order was entered herein 
directing the reoeirer to deliver to said trustee the said 
Sim of $40,000 and to make payment of additional sums out of 
the moneys in the hands of said reoeirer, as provided in said 
order} 

"9. That on the srjne date, June 11, 1935, the peti- 
tioners, H* B* Halterman and others, through their counsel. 
Max Richmond Kargman, presented a petition praying for leave 
to intervene in this proceeding on "behalf of certain holders of 
leasehold honds, the majority of which had deposited their bonds 
with the committee for the protection of the holders of first 
Mortgage bonds sold through Aaerican Bond & Mortgage Company, 
which eommittee had consented to the decrees and orders hereto- 
fore entered herein, and the Court, upon examination of said 
petition, found there were no new matters presented therein whioh 
had not prior thereto been fiaiy heard by the Master in Chancery 
and by this Court upon various ocoastons as herein set forth, and 
that this Court held that to peralt the filing of said intervening 
petition would merely prolong the litigation in this cause and un- 
duly burden the parties in interest with costs and expenses Ahat 
would be unwarranted, and that said petition was without merit, 
either in law or in fact; that thereupon, an order was entered 
here is denying the motion of said H. B* Halterman and others, "bj 
their attorney. Max Richmond Kargman, to intervene* That at said 
hearing this Court stated that the said counsel for the inter- 
vening petitioners could present, if he so desired, certain auth- 
orities to the Court and that the Cotirt, after examination of said 
authorities I would notify all counsel of record if not convinced 
of the propriety of the proceedings had in this cause, by Saturday, 
June 15, 19351 and further that this Court advised all counsel 
present that it would not be necessary to appear before this Court 
on Saturday, June 15, 1935, ualees they were so notified. 

*J.O* That on Saturday, June 15, 1935, the said Max Richmond 
Kargman, attorney for H. R* Halterman and others, appeared before the 
Court without notice to counsel of record and requested this Court 
to permit him to file on behalf of said proposed intervening peti- 
tioners an amended petition to intervene, and this Court refused to 
enter such an order or permit any Intervention without notice to 
counsel of record* 

"11 • That thereafter on June 80, 1935, upon due notice, 
the said H* R* Halterman and others, by their attorney, Max Richmond 
Kargman, moved the Court for leave to file an amended petition to 
Intervene* and the Court, after examination of said petition, finds 
that said amended petition Is v^ithout merit» either in law or in 
fact, and is substantially the same as the original petition, the 
prayer of which this Court denied on June 11, 1935, and the Court 
having heard all of the matters raised by said amended petition and 
being fully advised in the premises, and after full hearing in the 
matter, and acting in the reasonable exeroise of its discretion in 
the matter* 

"It Is Ordered that the motion of H* R* Halterman and othersp 
made by their attorney, Max Richmond Kargman, to file herein their 
Intervening amended petition, be and the same is hereby denied* 






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-12- 

"It Is TuTther Ordered » and therefore the prayer of said 
petition is herelsy denied." 

The material parts of the petitions, as stated "by petitioners in 

their brief, are, in substance, as follows: That the petitioners 

\f8re not made parties to the intervening petition of the lessors 

and had no notioe of the proceedings until after the decree was 

entered) that the ten bondholders nade parties to the petition 

to represent the non-depositing bondholders did not appear and 

defend and did not properly represent that olass, and that the 

proceedings for forfeiture were isholly foreign to a court of equltyi 

that the offer of the lessors was mafair and inequitable; that said 

Bondholders* CoBunittee in accepting it did not act in good faith and 

did not protect the petitioners' and other bondholders' interests in 

that the committee, through its chairman, attempted to operate said 

property, although its chairman had no experience whatsoever in suok 

business; that the connalttee permitted the trustee and its counsel 

to withdraw from the estate numerous and excessive sums of noney, 

which depreciated the estate and directly contributed to the oondi- 

tlon of default existing In taxes and ground rent; that the trustee 

In 
and its counsel were guilty of malfeasance and misf easano©^^ thai, thv 

secured the payment to themselrea of sums of money unlawfully and Im- 
properly and should be made to accoxmt for said sums; that Chicago 
Title and Trust Company, as receiver, and the chairman of the committefl 
received improper and excessive fees in connection with the operation 
of the property and shoiad be made to return to the estate the moneys 
so secured; that if all of the moneys that were improperly and unlaw- 
fully withdrawn from the estate were returned to it the defaults, if 
any, in the ground rent and taxes woiad be substantially diminished 
and the bondholders woiad have the benefit of the property which 
rightfully they should have; that the building erected on the land 
oest in exeesB of $500,000 and was worth not less than #400,000) 



-31- 








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-13- 

that the l^oiidholdaxs hare a su'bstantlal interest In the property 
and the offer of ^40, OCX) wae groeely unfair and inequitable; that 
the ground leBsors took ao action to enforce the defaults at the 
tine when they knew or ohould liave known of the iarproper distribu- 
tion of moneys to the trustee and its attorneys; that the ground 
lessors entered into negotiations with the Bonfiholders* Committee 
to reduce the rent due under the leases and made tentative agree- 
aents for reduction of the rents and for arranging the rental upon 
a basis so that the payments could be isade; that for two years the 
ground lesEors permitted defaults to continue and at the same time 
were negotiating for a revision of the leases; that this conduct of 
the lessors ''lulled the parties into a sense of security as did 
their negotiations for a reduction and revision for the terms of 
the leases;" that the lessors were now seeking to enforce the strict 
covenants of the leases and to "enforce a forfeiture thereof and thus 
unjustly enrich themselves at the expense of the great number of 
persona who were lulled into a sense of security by the previous acts 
of the lessors;" that the court should not permit them to enforce for- 
feitures in an equity proceeding because the forfeitures arose largely 
on aocoun* of the conduct of tte lessors; that the court should y«« 
strain thmn from forfeiting the leaseholds p-nd should aseumc Juris- 
diction for the working out of a reorganization plan; that the lessors 
have no right to forfeit the leases under any conditions in a court 
of equity, and that the decree should be vacated and set aside and 
their Inteirvening petition should be dismissed; that a plan of re- 
organization might be evolved for the protection of all the parties 
herein, and that sua accounting should be had of the sums of money 
xmlawfull:^ withdrawn. 

Appellants contend that "a Court of equity should not 
entertain a petition or proceeding to forfeit a leasehold »' and 
that "the lack of jurisdiction of a Court of squlty to enforce a 



-Zl- 



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«oa bXJ»«iIe T*^ffP« io *<«»0 a" *arfS iine^noo a^£»BXI©qcj.-. 
iMis ",bXeileaa»X a i^le^to^ oJ sni&s»s>oo"iC[ to nox;H;Jsq a «la^'j:»«ii0 
a •oicj'itt» oJ \:ilijpa ^o JiffOO « to iroiiolbeitftJt, !to :!(?>£}X erf** t»Ai 



-14- 

forfeiture may be raised after decree and even in the Appellate 
Court in the first instance." It ie undoubtedly the lav that 
a lessor cannot by a bill in equity hare a lease set aside on the 
^ound of forfeiture) as it ie a settled doctrine that a court of 
equity will not interfere on behalf of the party entitled to en- 
force a forfeiture, but will leaTe hi» to his legal rsaedies. But 
there is an equally veil settled principle of law that when a court 
of equity once acquires Juriediction it may retain the eause for all 
purposes and administer legal redress as well as equitable relief 
and will dispose of all questions arising between the parties, 
whether such questions are legal or equitable* In the inatant 
case, when the intervening petition of the lessors was filed the 
court still had juri edict Ion in the foreclosure proceedings and the 
property in question was in custo dia l eyis. If the lessors had 
started legal proceed ings that might affect the possession of the 
property without the sanction of the court appointing the receiver, 
such action would have constituted contempt of that court. The 
trial court had the right to try the petition or enter an order per- 
mitting the lessors to have the question tried in a court of law. 
Ae the court had possession of the property, the chancellor decided, 
wisely, we think, to try the petition. If no receiver had been 
appointed in the foreclosure proceedings, or if one had been appointed 
but had been discharged prior to the filing of the lessors* inter- 
vening petition, the lessors would not have had the right to inter- 
vene in said proceedings. The case of Gunniiy v, Sorg, 214 111. 
616, supports the procedure followed by the trial court. There 
Sorg executed to Qunning a 99-year lease on certain premises in 
Chicago. A trust deed was executed by Gunning to one Phillips om 
the leasehold estate. The lessee defaulted in the payment of certain 
quarterly installments of rent, and the lesser served notice of de- 
fault and thereafter instituted a suit of forcible detainer, Befer« 



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•rf* no abiBM t9B *8.39X j; svcri viiffp- .tonn^o loaasX a 

to r^iAio «: ^jErit 9Rln;>oo'i beXv. < nuoTS 

trueo 9. n»iir ;ffirf* vrrjX 1:o sXviit ni-Kj feaX^^tf; i al staff* 

*siX9t sXrf'^v /U'lS ?.? II:r .:^J'■ Rr,3T&''T I/-->i.?I f 5« >. Inli.^*!.- '»n^' apaorrfuq 
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>i:? ri noiaaeaaoqt ^Ai tfoetts Mgija *sfl:: ii^ii &'^ 

-t»q isMo rus isO; >ai bBil vIjjoo Xsii* 

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iiB«<f tori idTlsoert on .noi*i;Jf 

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■0 a^iXXiif-i ©HO o;f -aifirijJi v.tf bsijuooxe 8«w b»©' Saw7.. 
hlsiODO tm ttmmnpG »tli at b&4Lu»1t>b seBaeX rx!T .siBS^.f} bXwi :i. di 
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-15- 

that Buit could 1»9 keapd Phillips filed a bill for foreclosure on 

the leasehold estate* a reeeirer wae appointed » and 3org then filed 

an intervening petition setting up the conditions of the lease* the 

default in the payment of the rent* and averring that the trust deed 

to Phillips had been executed vyithout petitioner's knowledge and 

oonaent, and askln,-^ that the game toe declared null and void as 

against hie interest, that he be decreed to be entitled to the 

posBession of the premises, and that the lease and trust deed b« 

canceled and set aside. The final decree entered toy the trial court 

ordered that the lease and trust deed be set aside and annulled and 

that possession of the premises "be given to petitioner. (See Gunning 

v» Sorg , 113 111. App. 332, 337.) In the Supreme court, In answer 

to a contention that the deeree was wrong because a court of equity 

could not enforce a forfeiture, the court said (214 111. 616, 624-6) i 

"It is urged that the latter decree was wrong, for the 
reason that a court of equity will not enforce n forfeiture. It 
\ViB familiar doctrine that a court of equity will not actively 
interfere to enforce a forfeiture, (l Poaeroy* s 3q. Jur. sec. 
459.) But it is equally well settled that when a court of equity 
has acquired jurisdiction ovar a cause for any purpose it may go 
on to a complete adjudication, and may establish purely legal 
rights and grant legal remedies which \?ould otherwise be beyond 
the scope of its authority. In such a case it will not remit a 
party to his remedy at law, but \7ill decide all issues and make 
a decree-granting full relief to all the pjirties. (Ibid. 181, 
236.) In suite in equity where the right of possession of real 
property is involved, it is not only proper, but t^e duty of the 
court, on the completion of the suit, to put the successful claiaeint 
in possession of the premises. ( Harding v. LeMoyne. 114 Ill» 65») 
Although a bill in equity cannot be maintained merely for the 
enforcement of a legal right, if the controversy contains any 
equitable feature vjhich authorizes a court of equity to take cog- 
nizance, that court will retain jurisdiction for all purpoaec and 
will establish merely legal rights and grant legal remedies. ( 3tickney 
^* Qoudyi 132 111. 213.) In Link Belt Machinery Go. v. Hug hes, 195 
111. 413, it was said that a court of equity having by its receiver 
taken possession of appellee's property in that case, and having by 
its orders taken his rights under its protection, w?,s bound to protect 
him without driving him to a suit at law to enforce such rights. That 
rule applies here. Phillips, the complainant in the original bill» 
invoked the jurisdiotion of a court of equity for the foreclosure of 
the trust deed and prayed for the appointment of a receiver to tako 
possession of the premises. Guiining entered his appearance and 
expressly consented to the appointment of the receiver. The receiver 
was appointed and the property \jas thereby brought under the control 
Of the court to be disposed of according to the rights of the par- 
ties, and the court, having acquired jurisdiction, mit^t then adjudgo 
the rights of all parties to the suit although it involved the grant- 



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-16- 

Ins of legal remedies. (17 ISncy. of PI. & Prt see. 766.) The 
receiTer did not hold the property for PhillipB or for aunning 
or for any other person, hut for the one vho in the end should 
sho'w himself entitled to it. The property haying legally coae 
Into the possession of the receiver, it could not he interfered 
^ith hy any person claiming an interest in It vilthout leave of 
court, hut Sorg could either ask the court for leave to assert 
his title to the property in the posaession of the receiver by 
a suit at law or to have it determined in the receivership. The 
court, in its discretion, could either try the case itijelf and 
determine his right to the property or permit the question to 
he tried in a court of law. (17 -Snoy. of PI. & Pr. 775-792,) 
The court determined to try the question Itself and came to a 
correct conclusion as to the rights of the parties. The lease 
had heen forfeited, and Sorf? was entitled to possession of the 
property when possession was taken hy the court through its re- 
ceiver* Vhen the receivership came to an end it was v/ithin the 
power and duty o: the court to determina to whom the poesesnion 
should he surrendered hy the receiver, and having ascertained 
that r?org was entitled to it, it would not he in accordance with 
equity to order it returned to one of the parties who had no right » 
legal or equitable, to it.** 

The procedure follo-wred in the instant case was also followed in 
Chicago TruBt Co» v. 12-14 ^'^« ^/ashlngton St. Bld g. Co rp., 278 111. 
App. 117f hut there no iuestion seems to have heen raised as to 
the right of the lessors to file their intervening petition. In the 
recent ease of .^scher v. H arri son Cecurities Co. , 79 ffed, {2d) 777 » 
It was held that a landlord was entitled, in receivership proceed- 
ings in the Federal court or in a state court, to take action to 
forfeit a lease and to repossess leased property hecause of non- 
payment of rent and nonperformance of other forfeiting covenants. 
In its opinioa the court cites a number of cases that seem to 
support the procedure here followed* 

Appellants contend that none of the bondholders selected 
by the lessors to represent the class of non-depositing hondholderi 
appeared and defended on behalf of that class, and, therefore, the 
appellants should have heen given leave to appear and defend. Th« 
order entered hy the chancellor on June 22, 1935, dirposes of the 
argument that the views of the non-depositing bondholders were never 
considered. That order shows the pctive part taken by counsel for 
appellants in important hearings hefore and at the time of the entry 
of the decree. It further shows that counsel for petitioners 



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-X7- 

Halterfflaa and othere war present on Jtme 11, 1935, when a ftill 
hetiring was had upon thi merits of the petition of the trustee 
for an order on the receiTer to turn over the sum of 1^40,000 for 
purposes of distribution to the holders of the first mortgage 
leasehold honds* Counsel for appellants, upon the oral argument 
in this court, conceded that he represented certain non-depositing 
■bondholders in the hearings before the chancellor on May 20, 1935 1 
May 29, 1935, and June 11, 1935, and that he also represented cer- 
tain non-depositing bondholders in the cause in the Pederal court* 
Taile no objections ^«ere filed to the master* a report, neverthe- 
less;, the chancallor gave a full hearing upon the report, in whioh 
counoel for appellants participated. The decree in question waa 
entered on May 29, 1935, hut counsel for appellants did not see fit 
to present a petition for leave to intervene in the proceeding until 
June 11, 1935. We cannot commend the practice followed by the 
counsel. After the bondholders had learned of the offer of the 
les£?or& there still remained on deposit with the Bondholders' 
Coiamittee 89.8 per cent of the total bonds outstanding. After 
the chsjicellor had approved the offer it vjan reported to all of 
the bondholders, approximately three months prior to the entry of 
the decree, i'he several postponements given counsel for appellants 
by the ehanoellor ehov; cles^rly that the latter was willing to gire 
tne counsel a full opportunity to present the views of the non- 
depositing bondholders, and it sesms idle to argue that such bond- 
holders were not given an opportunity to be represented before the 
entry of the decree. The failure of the appellants to present, 
in apt time, a petition for leave to Intervene and to filo formal 
objections to the master' r; r^^port, is not chargeable to the chan- 
cellor nor to the appellees* 

The argument of counsel for appellants that the lessors 
lulled the parties into a sense ef security and thereby waived 



-vx- 



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;fit »«8 iOB kib r3rTrT.It?<irr < j 



' ft il OJ.O;:; 1-^ 

to XXfs oJ bBitCi 
io ^iia« erf* o? Toiiq fciiux:oi 



:t ioXXeoELi?ytio arW 

aiibiXX»qq« tol Xftsfu/O'j ntvJt^ ed'mujj. noq;faoq; XaT©v©a 9i£i' .©e^osb snU 
»Tl8 05 sfiilXi.. olS.&oa&£io atld ^«f 

-fwocf floue ciUiJ or- . bXttftfcnorf ^aXcT Jttoqai) 



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-18- 

the strlot provleions of the leaae ae to forfeiture is without 
merit* The eyidence ehowe that the leeeors ^&re patient and that 
they were willing to ohsjige the terme of the lease "to allow the 
property to he worked out," tout their efiortB in that directiom 
failed. UhilB they were entitled under the provisions of the leas* 
to a forfeiture without compeneation, they saw fit to make the offer 
in question and it was epproved by the Bondholders' Committee, by 
the master after a full hearing, and toy the chancellor after he had 
giren appellants* counsel a full opportunity to be heard. Trom the 
report of the maeter and the findings in the decree it seems reason- 
ably clear that the property ^as hopelessly involyed and could not 
l»e eared to the bondholders. liTinety per cent of the bondholders, 
after a full consideration of the situation, were willing to accept 
the offer. iJone of the appellants hare offered at any time, even 
in their petitions, to redeem any of the defaults. Indeed, in their 
petitions, they present no feasible plan to save th? property for 
the bondholders. 

The appellees have made a motion in this court that the 
apreal be dismissed. It will be denied. 

The judgment order of the Circuit court of Cook county of 
June 18, 1955, denying the motion of appellants to intervene and 
file an intervening petition, and the judgment order of June 22, 
1935; denying leave to appellants to file their amended petition, 
are affirmed. 

jUDOMrirr oildisi-? of jim?] is, 1935, jjiocim 

MOTIOir OF AP?3LLA]fTS TO IHriJ^JVJMJ Am) FILS 

AIT iwur/i:Ti:iG i'..'ti'?ion, aitd jroaiCiijrr ord>r 
OF jmns 22, 1935, j^rimriHG kav; to ap^'^ll^jbits 

TO FIL"^ TWiTR J\}nSD'^D PilTITIOST, /O^IKitlD. 
Sullivan and Friend, JJ., concur« 



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bus eneTifti.' I'Blioqq Horn sff* sal-scwob ,a£€X ,61 enuX, 

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38647 



(Respondent) Appellee ^ 
(Petitioner) Appellant. 





APPSAI, HIOM MUHICIPAL 
COmX OF OHICACrO* 



^ 



28 5 IX 593 

Ki, lESSIDISG JUSTIGS SCAHLAS KILIVJSPE2) TES OPINIOH OP THS OOORP, 

Plaintiff, as assignee of the true tea in bankruptcy of 
the ivhitestone Management Company, i^iiloh company operated the 
Brake hotel, susd defendant fer #344 halanee alleged to be due 
plaintiff from defendant for rentals of the hallrooa at the 
Drake hotel. Defendant's amended affidavit of merits alleges 
that plaintiff was not the "bona fide owner of the claim, denies 
that the "rooas" rented were *giTen and delivered to defendant 
at his special instance and request,'' and denies that defendant 
was indebted to plaintiff in any oxxn •whatsoever. After a jury 
had returned a verd iot finding the issues against plaintiff, 
the latter' B motion for a new trial X7ae granted. Defendant then 
filed, in this court, his petition for leare to appeal fro« the 
order of the trial court granting plaintiff a new trial, rrhieh 
leave to appeal was allowed* i^laintiff has not filed aa appearane* 
nor a hrief in this eourt* 

This court is not aided by a stetement of the trial judge 
giving his reasons for the allowance of the motion for a new trial* 
"but we are satiafied, froa an inspection of the short record in th« 
case, that defendant's ooniention that " the on3.y point on which thi» 
court could have granted the new trial \vag on th^ weight of the 



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ftiii fli btct>f>\ ^"odn Off J lo KoikoeqivHi' nu boiT: tbei" .'i/tf 

ttf# tl9itbr rr* .^«ioq v.Xflo ©i£?" ikti^ aolitisCaoo a '^Jajshnolt-f: ifjafi' , 

tdt io idi'lj;:. - M i :, con &jd.i h&iisAX-g BreA bijaoo Jxuoo 



erideAoey" la oorreot* 

Defendant eoateade that "the rerdlet of &lie Jur/ was la 
aecordanee with the weight of the eTideaeet** and that *'the trial 
court usurped the funotione of the iray in graatlag a nev trial 
to plaintiff*" In pae&ing upon this oentention we hare seen 
fit to read the entire trnriBcrlpt of the evidence » whloh consista 
of oral and documentary proof, and! after a careful oonsldsratlen 
of all of the facte and clrciaBt&nees of the c-^.ae -Jse are ^jatls- 
fied that we wculd not Toe justified la suetainlng defendant's 
contention* 

The order of the Kuaieipal court of Chicago granting 
plaintiff a new trial is affirmed* 

0EIJ3SE mAjsrsim plaiftiff a. 



TiiilliTan and I'rlendi JJ«» soncur* 






• ■XUOuv 



386T6 



THSODOKS J* JOH2730N, 

AppelXaaty 

v» 

THSOI30EE A. BUSHOmt 

Appellee* 





) 
) 
) APP3AL PPOM MUHICIPAL COURT 



OF cmcnc-o* 



28 5I.A. 593" 



MR. PKSSlDIlfa JTJ3TICE 3CAMLAH D^LIYSRSD THS OPIlflOH OF THE COURT. 



Plaintiff confessed Judgraant in tha sua of t>5,4C7.96 
against defendant for alleged unpaid principal and interest due oa 
fire prOTiissory notes executed "by defendant. Defendant filed a 
verified petition to vacate the Judgment » in v/hich he alleged that 
"the amount of money actually borrowed and received fro« the plain- 
tiff l>y the defendant was less than the amounte specified in said 
notes ) heing so made as to cover up a usurious charge of interest 
Made hy the plaintiff." The petition sets up in derail the alleged 
facts in connection wich each of the notes. Leave was given defend- 
ant to appear and defend » the Judgment to stand as security and the 
petition to stand as defendant's affidavit of merits. The cau^e 
vas tried by the court without a Jury* and the judgment was reduced 
to $52.34 and confisrmed in that amount. 

Plaintiff's statement of claim allegesi 

"Plaintiff's claim is for money due upon five certain 
promissory aotea, the amounts, dates and maturities of each of 
said notes being as follows: 



i^ount 
$5,000 

3,600 
4,000 
4,500 
4,500 



Dated 
6/1/27 

e/i/27 

11/1/27 

12/1/27 

5/1/28 



Due Date 

6/1/28 

9/1/28 

11/1/28 

12/1/28 

5/1/29 



that there is due on the first promisaory note th^ principal sum 
of 4^661.94 together with interest thereon to December 15, 1934 



S?c)85 



\ 



•TSUOO SET "^lO K0IHI10 »K 

d^»vai^tS4 lo 0108 eiiJ ni tneer^btil feeeaslnoo iticTEfisX^ 

no 9ub tsQiBini bnn Xscjioniiq blsqfr'r begQlXe "TO^ .+ n3fea©l«i9 ^anii58« 

A i»8li^ uxis6nal»u .ins' ";d boii$oi^x£i seiam •^xoaaiiserxq &yxJ, 

fjadi bsaaXle eii dvi.- :2r\^^tu'\ . .zosv oi noi^xc-eq beititBv 

"Btsiifi oiii «oi."i b^ylsoot iuiB b©wo'Xic<f v.IX£tf^ofi ■v:oisoia 'to inuoms sif*" 

iatisiai lo dsaaxio snoiiuciu b qw ngvoo o3 tiij aiwrjia oe Bniotf tBo^^on 

beB*-^-^ •'l^ Xi. oc.b ni q.ij sJes no.. - . isaimlii &rii \ii sbxaa 

te»l9b isrvia saw ©T^a.i ♦asJorx 9A;i lo ifojs© jdiJi»^: noi^oennco ni: a^ost 

•d) ana xtituoce c^ bn^is o;) dXTSjogbjjt ^tH «.bn«leb bcjs -XBeqqis o^ stus 

•«lf0O odl •a;)ixdia lo tUtabillR a*iajRt.ixe'i»b ac b£i»da o^ tioiiXieq. 

leoseXXe oiaXo lo JnsjfflsiT^cfB e^tlxiatifil'i 

miaiteo ovil tioqu oub %&aoai tol ex MifiXo a '"ilJJnl^X?" 
lo i£o«» 'io 99i*xTB*f,M bfi/j 3f>*ah ts^nwoMJB 9/li , Be don •^■xoeBlaroiq 

• as.- n r it^-: r. , firtjpcf 9©don bias 

♦4*U e«KI b«3i: ,+ r-MrM.T.. 

8£\A» VSVXd 

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6£;\X\SiX VilVlsSX ..., - 

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laqiotitivi etii p«*o« t'toeairwo'xa ^srri'J •£(;> no S0b a J: 9iBAi iadi 



In the BUB of ^66.49 i that there ie due on the seoond promlseory 
note th« principal sum of ;i^874.90 together with Interest thereon 
to Decenaber 15, 1934 in the sum of $250.94 j that there is due on 
the third proaiaeory note the principal aum of *850.00 together 
with interest thereon to December 15, 1934 in the stun of f 169 ,13; 
that there ie due on the fourth promisBory note the principal sum 
of $90S.62 together with interest thereon to Deceniber 15, 1934 in 
the SUB of $79*03; that there is due on the fifth promiseory note 
the principal bub of #1,121.07 together with interest thereon to 
December 15, 1934 in the bub of $187.77.« 

Defendant claised that as to each of the notes the discoiuit deducted 
and the interest contracted for exceeded sixteen per cent for one 
year; that the fire loans were usurious and plaintiff, therefore, 
forfeited all Interest; that all payments Bade to plaintiff on 
account of the notes must be credited toward the principal; that 
there was nothing due to plaintiff on notes Uos. 1 to 4, both In- 
olusire, and as to note Mo. 5 defendant owed plaintiff the sub of 
152.34 • x\t the outset of the hearing counsel for plaintiff made 
the following statement to the courts "Kow the facts that we can 
stipulate to. Judge, are the amount of money that wae paid by the 
plaintiff to the defendant for the notes - I think we have those." 
It was then stipulated that plaintiff paid |4,500 on note Ho. 1 and 
was paid on that note |5,215; that plaintiff paid $39240 on note 
lo. 2 and was paid on that note |3,279; that plaintiff paid ^1^3, 610 
on note No. 3 and was paid on that note I 3, 750; that plaintiff paid 
$4,050 on note He. 4 and was pftld on that note $4^366 .80, and that 
plaintiff paid |4,095 on note Uo. 5 and was paid on that note 
$4,042.66) that each of the notes bears interest at six per cent 
per annum, payable semi-annually. After the parties had stipulated 
as aforesaid plaintiff introduced the notes in evidence and rested. 
It Ie conceded, of course, that it is usury to make a loan 
In a certain amoimt and to reoeire a note for a larger amount, where 
the discount and interest exceed the lawfiil rate. Plaintiff* s olii b 
is that he had no dealings with defendant and that he purchased all 
of the notes froB the Monroe oecurities Corporation, owned and con- 
trolled iBy DorenBuehle, Inc., and his theory of law is that the 



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fen;; :ci on:-- ..-,..;,.■. ..-,,. ..,w^ 

- > ^ol cfKeb«el»ft ei!f4' oi I'itiaiMlq, 

,oV. sioa no :05,i»§ blaq lliicislci oisjcfj bftd-sXiniiiJa x¥»iJ^ bj?w #1 

eic«» no Ol'S^f: nirlq, iBd;i |5XS,a$ ©4wn 5s«l^ no bt$q, a«v 

ftlaii tT:iJni»Xq :>sili j08f,£i^ eicK i&ili no blfi? s.-iu hass 5 «ofe" ©#on wo 

olon iiuii no bicq ac • ♦ .on no 3«0,JN^- |>ijaq[ ^ll;^«ifiiq 

h»4M£ufil3e bad. ubiiraq ^xii , lijwiiia-iiaea sXtfe-^t^iq ,«ttjr.n« ib% 

■0 ;?::.f ,7J-.. :-,r3i5 ,^rii? fii<^ «le*1»0 « Hi 

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-3- 

"pureluise of a note in the usual eouree of buelness at a dlsooont 
greater than the rate of interest allowed toy law is not usury*" 
The defendant's claim ie that plaintiff aade the loans to hia and 
that while in form the transactions on their face might apx>ear to 
be a purchase! the fona used tvas a aere derloe or scheue to covar 
usury* Both parties conceded » upon the trials that the sole iasa* 
of fact was: " ere the tranesctione loans to defendant » or were they 
purchEuee of notes from Monroe Securities Corporation?" That was 
the only issue of feet raised hy the pleadings. It im not disputed 
that if the notes represented loans to defendant plaintiff was guilty 
of usury and the final judgment of the court was correct* 

Ruth C. Greenfield* the only witness who testified for 
defendant, worked for Monroe Securities Corporation and also for 
DoTenmuehle» Inc. She testified that she handled the transactiena 
with plaintiff in reference to the five notes. Plaintiff testi** 
fied» "I had all sy dealings v?ith Miss Greenfield on these notesi" 
that while defendant mighty possitoly* haye toeen there when he T)ought 
the notes, plaintiff never talked with his about the notes. Misa 
Greenfield further testified that plaintiff made loans from time to 
tiae through their office) that these loans were made mostly to 
defendant* As to note STo. 1 she testified: "It is a note for |5pOOO« 
It wae made in 1927* This paper was nade out and the note was glrea 
to him, and T gaTe the note to him my self . «^ ^ «^ ^« How who was 
this loan made to? A. Well» to Mr* Buenger.** The witness testi- 
fied to the same effect as to the other notes. Upon cross-examination 
the following occurred s "(i« Vowj Miss Greenfield » I understood 
you to say that with respect to plaintiff's exhibit 1, being the 
first note that was handed to yoUf that in explaining this transaction 
that Ur. Johnson came in and he had some money to loan or inTest and 
the note was made out and giren to him? A. Yesf sir* q,» Is that 
right? A. Tes* * * * (^, When Mjr. Johnson came in the note was 



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.4* 

made out and given to hiai? A. U'ell, he rery often ooae in and 
made arrangements for the note firet. He virould coae in one day 
and say tliat this wao to 1i« arraagsd for poasibly a week or ten 
days later* and then vrhen he came in to get the note the statement 
vfRS made out» (^» Yoti don*t know whether this note - this firat 
note that was handed to youi plaintiff's exhibit 1 - was made out 
the day he came in or not? a, I aould say that probahly it wasn't 
made out the day - that isi it was not made out the first tine he 
came in." The witness further testified that defendant was presi- 
dent of the Konroe Seourities Coxjporation and also president of 
Dorenmaehle , Inc. Upon redirect tlte witness testified that neither 
Monroe Securities Con^any nor DoTeni&uehlef Inc.* nor anyone connected 
with thene organizations reoeived sjay conmiHsione on the transactions* 

Plaintiff Is a practicing lawyer. He testified that he 
had known the Monroe iiecuritiee Company and ]>oveniauehle, Inc., "erer 
since their exlBtenoej" that he knew defendant; that he had had quite 
& few transactions with Monroe Seoxurltles Coapai^t "firm options " 
and these notes here that are in oontrorersyy I bought then all of 
the Monroe Securities Corporation. ^'^ * * q,, * # ^ Fr(» whom did you 
buy that'll showing witness plaintiff's exhibit l}? A. i bought it 
of Miss Greenfield of Monroe Securities Corporation. Q. Was ]fr« 
Buenger there? a. He may havo been. I had no personal transactions 
with him at all. ^. You didn't talk to him did yeu? A« Nerer, 
not in regard to these notes." The witness further testified that 
he reoeired an invoiee from Monroe OQcurltias Corporation, owned 
an(J controlled by Doreniauehlo, Inc., for each of the notes, and that 
he paid for each of them with hie personal oheok made payable to 
the order of Monroe Securities Corporation. The invoicee and cheeks 
were introduced in evidence. The witnesp further testified that he 
bought each of the notes from "Monroe -securities CorporatioUf Miss 
Greenfield;" that he had "no dealings with Mr. Buenger at all on any 



■ntf 



*;. ;: 



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, . .iBimii^ ^'ft'i' "««* siOF.o 






of tlieee noteaf* that all of his dealings in regard to tho not«a 
wore with Miss Greenfield i that he aever loaned Mr* Buenger any 
money and the latter nerer asked hla to loan him money* Upon oross- 
examination he testified th^it he knew Buenger and his financial 
responsihlllty hut that he nerer talked with him at all about th« 
notes; that prior to the transactions in question he had had eimilar 
transact ions with Monroe i^ecurlties Corporation; that he does not 
know whether he had ever made any statement that he had no huslnesa 
dealings with said corporation prior to the transactions in question* 
The follovsing proceedings then occurred* "Q,* l£r* Johnson, did you 
on the 16th day of April, 1935, sign a sworn statonent known as a 
hill of complaint in which you said in part that hetween the dates 
of receaher 1, 1928, &nd May 1, 1931> the plaintiff purchased from 
said Monroe Securities Corporation certain articles of agreement for 
warranty deed, and then further in paragraph 5 of the complaint: 'That 
prior to the date of the exeoution of the first of said optional pur- 
chase contracts plaintiff had heen transacting the same nature of 
liuainesa with the defendant, ]>oyenmuehle, Xnc*, and when informed that 
these optional contracts were to be purchased by Monroe Securities 
Corporation the plaintiff ohjected and stated to said Dovennuehle, 
Inc* that the said Monroe Securities Corporation was unknown to hiaf 
that he had no knowledge of its financial responsibility or its 
effieerst and therefore plaintiff refused to transact buslnesB with 
said corporation.* Did you ever aiake that statement? * * * The 
Witness^ I don't know what relation that question has to do with 
theso notes in oontrorersy* Mr* Mailer (attorney for defendant)! 
i^* Did you sign this svorn statement known as a complaint? A* I 
don't remeoiber just what was in the sworn statement that I did sign* 
Ci* But you signed the sworn statement? A* I beliere - so. * * * 
(%• Did you read it, Mr. Johnson? A. I beliere I probably read it, 
skipped through it. I don't know." Miss Greenfield was then called 



ttitontift\ mil 



^jjB t:^ 'OTftfi tJ- : &Xt!l1;flȣt?^ f:,.3iM xfaiw s-xaw 

-«80*ro HO^lJ .^oitoH oitL n&oX oi «irf faisia^ Xi>T»fi ■JK^dJw.i arf* fcne xsrroa 

'liiq XjBnol^q.d btRa ^o iB' \otii!0^ >j sish oxf* o* lOiitq 






.'I t«aen;^X'- 
'.;xr/i S[iif..iJi.>.i^: nxooM alif;! wj^ia uoy, bid *9 






-6- 

ae a wltnea* on be half of plaintiff * She testified tliat thB 
buslnoae of the Monroe Securities Corporation from June !» 1927> 
to May 1» 1928 t was selling junior mortgages, that the bransaotlons 
in reference to the five notes "^were speoial transactions »" and that 
the eald corporation ^o.e "not in that business •" Counsel for plain- 
tiff then offered to prore that there was "collateral security held 
hy either Monroe oeeurlties Corporation or Bovenmuehle, Inoorporatedf 
for the security of these notes ,** and that the security was not turnsd 
over to plaintiff > hut after a colloquy between the court and counsel 
for both parties counsel for plaiatiff nade the following statement t 
"Mr. Donovan: These (referring to the fiT« notes) have ne collateral 
BO far as we can see now.** 

ELaintiff contends that usury is never presiuaed and that it 
must be proved by a preponderance of the evidence, that plaintiff 
and Miss Greenfield were the only parties who testified to the 
transactions, that plaintiff is as credible a witness as Miss 
Sareenfieldf and therefore defendant failed to prove by a preponder- 
ance of the evidence his claim of usury. It is not the law in this 
state that an affirmative statement met with a flat and oatagorical 
denial by an equally credible witness does not constitute that 
quantum of affirm&tive proof which the law requires to sustain a 
Jud^DEtent. The preponderance of the evidence does not necessarily 
depend upon the number of witnesses testifying as to any material 
subject of inquiry • Even though the same number of witnesses 
testify on each side there may still be a preponderance on one side 
or the other* while the nuatber of witnesses is a factor that may 
be taken into consideration in determining where the weight or 
preponderance of the evidence lies, it is not necessarily determlnativop 
and a Jury or the trial court may be fully warranted in finding in 
favor of a party even if his case is supported by the lesser nuniber 
of witnesses* It is the province of a Jury or the trial court to 



.d- 



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minute 



ti^njiisj 



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Ini:-. , . ,..., 



ill »ofmtkrn 9ii~ -ii^ ftoir.-j 



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(^MW ioaa«X »jrf^ Ttf l>ft*too<iws ai &faax) ei v;»T«<f o 1:© TMJvJst 



-7- 

pass upon the credll}llity of the witnesses and to determine the 

weight* if any* that should be attached to their testimony* 

"The Vritn&Bs* manner > demeanor and hearing upon the 
stand* - his replies* whether frank and open or reluotajit and 
eTasire* - his mannsr of expressing himself ^ whether mouerato, 
dignified and reepeotful on the one hand* or extravagant* 
Impertinent find recklass on the other, - * -•• * are always of 
Yital importanet in determining to what* if any* credit the 
witness is entitled." (lll«_is 3 t» L » X i» R» 66 Q» Co » ▼• Oglei 
92 111. 353* 362.) 

It is not the law that a rerdict or finding which rests alone upon 

the testinony of one party who is contradicted in toto hy another, 

where l}oth appear to he equally credible* will be set aside upon 

appeal. (See iSiaer t. Miller * 255 111. App* 465* 470* and cases 

eited therein; Ghevalier v. Seager * 121 111. 564, 570 j Hayden t. 

Miller* 205 111. App. 147, 148? Mills & Co. T. Duke, 232 111. App. 

277, 280.) As stated in this last mentioned ease (p. 230): 

""STen in a orlminal case where the law requires proof of 
the defendant's guilt "beyond a reasonable doubt* a judgment of 
oonvietion will not be reversed merely because only the com- 
plaining witness testified to the commission of the crime and 
he is contradicted by the defendant. ( The People v. G reenberg, 
302 111. 566; The Pe opl-3 v. "Boetc her, 298 111. 580 j The J:'eople 
T. Maciejewaki , 294 "ill. 390.7'~~rSee also Hyan v. Harty * 200 
111. App. 470; Kolline v. Kronoke , 262 111. App. 648 (Abst.) 

In the late ease of People v. Fortlno* 356 111. 415, 420, the 

eourt saldt 

"This court has frequently held that the testimony ef 
one witness, even though denied by the accused, may be sufficient 
to sustain a conviction. People v. uohanda , 352 111. 3C; People 
V. aurek , 277 id. 621." 

However* in the instant ease* plaintiff is interested in the outeoae 

of the case: Miss Greenfield is not. In addition, there are certain 

facts and clrcumfltflnees that satisfy us that the trial court was 

justified in believing ths ter>tlmony of Miss Greenfield. In another 

action it suited plaintiff's theory of f.-5ct to have it appear that 

prior to December 1, 1923, a year and a half after the first 

transaction here involved* Monroe Sec\iritles Corporation was unkno^vn 

to him; that he had no knowledge of its financial recponsibility nor 

acquaintance ^rlth its officers, and therefore refused to do business 



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with it) and In his r^om oonplaint in that cause he stated alleged 
facts supporting that theory. In the inatant suit it aids his olai« 
to hare it appear that he Icnev/ the Monroe Jeouritiea Corporation 
since it was organized t in 1922, and that he bad heen doing husi- 
n038 with it before the transactions in question occurred. The 
ctatement of Miss Greenfield as to the manner ia .?hich plaintiff 
acquired each of the notes was not disputed "by plaintiff, ^8 
defendant argues, this was n«t a case where plaintiff went into the 
office of Monroe oecurities Corporation to purchase not«s that they 
heldt aor ^ras it a case of the employees of that corporation shonrlng 
pliiintiff a note or notes, with th« plaintiff having the opportunltj 
to pick out the one he desired to purchase; that here it is undis- 
puted that plaintiff zaade arrangements for a lending to he consuamated 
in a v&els. or ten day8» that a note '.vould then he executed in accord- 
ance with his instructions and ha 7/ould give the money for the note 
whan he thereafter oame to the office* Plaintiff knerr that the astes 
were not aade hy custoaiers of the corporation, hut by the pre-ident 
of both of the corporations. Plaintiff was a lawyer, and had invested 
in notes of the defendant nearly $20, 000 f he knew defendant well, had 
done business with hi« frequently, met hia during the period ef the 
transactions, and yet he states that he never spoke to defendant about 
«ny of the notes. Why? 

Plaintiff insists that the invoices he received froa Uonroe 
Securities Corporation, the checks he gave on accoimt of the notes, 
the fact that payments en the notes were made in the office of the 
Uonroe Securities Corporation, aake it plain that he purchased, at 
a discount, of the Monroe Secnrltles Corporptlon, notes held by that 
corporation. In Cleaens v. Crane , 234 111. 215, 230, the court saidi 

*The form of the contract is not conclusive of the questiout 
The desire ef lenders to exact more than the law peraiits and the 
willincness of borrowers to concede -whatever may be denanded to 
obtain temporary relief froM financial embarrassment have resulted 



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-9- 

In a yarlety of shifts and cxmning devices designed to evade the 
law. The ohar^cter of a transaction is not to be judged by the 
mere verbal raiment In \yhich the parties have clothed it, but by 
ita true character as disclosed by the whole evidence, if » when 
so judged, it appears to be a loan or loxbearancs of raoney for a 
greater rate of interest than that allowed by law> the statute 
i£) violated and xts pennltieg incurred, no matcer what device the 
parties me.y have employed to conceal the real character of their 
dsalingo. In Goofier v. Hock , 27 111. 301, on page ."502, the court 
said* *In suoli transaction it is the intention of the parties, 
not the forms employed, vihich fixen its character. If it were 
otherwlae* every species of fraud, oppresBlon and wrong might be 
perpetrated with r)erf'»ct imTJunity. Hence in trials of questions 
of usury it has ever been held that no device intended to cover 
up th^ renl ohar-^cter of the tranQRction can ever avail to defeat 
the statute.* It is the constant practice of courts to resort to 
extrinsic evidence to determine the question of usury. (2 Jones 
on Ividenee, sec. 441; 1 Elliott on Evidence, aeo, 591j gerguson 
▼• Sutphen , 3 Gilm. 547 j Heeve v. Strawn, 14 111. 94.)" 

In fidelity Secur ity Corp * v. Brugaaa , 137 Ore. 38i (l Pac. (2d) 

13l)tthe eoort said (p. 50) t 

'The courts do not pernit any shift or subterfuge to evade 
the law against usury. The form into -.9hich parties place their 
transaction is unimportant. Disguises are brushed aside and the 
law peers behind the innocont appearing oloaka in quest for the 
truth* lv«a the parol evidence rule interposes no objection: 
'iVigaiore on ^vioonce, sec. .-414; 3S ^Zyo* Uaui-y, 1054; Tei-ry Trading 
Corporation v. Barsky , 210 Cal* 428 (292 ?» 474)# If the trans ac- 
tion was, in fsct, a loan of the kind denounced by the la.; of 
usury, no font to which the parties could resort for purposes of 
crestini fstlaa appearances of ianocence ./.ould be invulnerable to 
attack by the truth: 13 Kentucky Law Journal, 375*" 

la 27 H. C* L« 211, sec. 12, it is stated t 

*'DeviGea to Conceal Usury* - xhe cupidity of lenders, and 
the willlnf-nens of borrowers to concede whatever nay bo demanded 
or to promise whatever may be exacted in order to obtain tsaporary 
relief from finaneisOL embarrpeement, as would naturally be ex- 
pected, have resulted in a great variety of diivioes to evawie the 
usury laws; and to frustrate such evasions the courts have been 
coffipelled to look beyond the form of a transaction to its aub- 
fttanoe, and they have laid it down as an inflexible rule that the 
mere form is iumiaterial, but th^t it is the substance which must 
be considered. Ko case is to be judged by what the parties 
appear to be or r&pissBent themselves co be doing, but by the 
transaction as disclosed by the whole evidence, and if from that 
it is in iubtta^ncfe a receiving or contracting for the receiving 
Of usurious interest for a loan or forbearance of money, the 
paitiet fere eubject to the ptatuoory consequences, no mntter 
what device they may have employed to conceal the true charrcter 
of their d etlingb. Cvcry specie?' of contrivance in tho modification 
of any loan or contract, for the purpose of evading the statute, 
being casee within the miechi€)f, e.xe kIbo within the remedy." 

In Payne v. Fewcomb , IC-O 111* 611, 618, the court said: 

"There is no more f^^niliar rule in th«? law than that the 
usury laws can not be evaded by mere pretences, shifts, or evasions. 



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Thia rule runs through a?.l of the 1)001:2, and requlreB the 
clt<9tlon of no authority in ite support.* 

We are satisfied that the trial court was justified in finding 

that the notee reprecented losuis to defendant. 

Defendant contends that "the most that can he said of th« 

plaintiff* s testimonj, therefore, is bhr-t h« made a loan through 

an agent or hroker; and the law is well settled that if a person 

takes a note at a usurious discount from an agent or isroker under 

6uch oircuastances, that he knows or ought to kno'w that the agent 

or broker is handling the transaction for the purpose of negotiating 

a loan for the maker, it is, In suoh a cas€!» a loan direct to the 

iB&ker of the paper through the agent or 'broker* /Jid in such a oaee, 

the lender will not te permitted to hide "behind the device or scheme 

of making the transaction app^etr on its face to be a purchase of the 

note* An examination of the cases indicate£> that chis device to 

cover up a usurious lending, is really one ox the most ancient 

devices ever put in^o practice*'* In support of this contention 

defendant cites a numher of authorities* In 27 B* 0* jb* 216, seo* 

17, it is saids 

"Where the first negotiation of paper is an exchange of 
it for money at a usurious rate of discount to one who knows the 
paper had no prior inception, the cransaction is eoaunonly con- 
sidered usurious, as it is a loan, and not a sale*" 

In 2 Daniel on Megottahle Instruments (7th ed*) 900, the author 

statees 

"g e neral rule as to usury in negotiation of the instruaant_»«» 
Hence this rule may he laid downs if' no party prior to the holder 
eould himself bring an action upon the note, and the holder knew 
that fact at the time he received it, then no prior party owned, or 
seemed to own it, and the holder who is the first owner must be 
taken to have loaned the money to the maker. •• 

In Fidelity Stcurlty ^orp;» , v* Brugaan , supra , the court said (p* 80): 

"\^here the first negotiation of a promlfisory note is an 
exchange of it for money at a usurious rate of 'discount,' to one 
who knows the Instrument had not acoiulrod validity hy a previous 
transfer for value from maker to payee, bha transaction i& conyid- 
ered a usurious loan, and not a sale: B j orkma n v. Columbia Wrecking 
& ]fuel Co *. 130 Or* 189 (279 P. 633)} Webb on Usury, Geo. 155} 27 
R. C. L. Hsuryp p. 216, sec. I7j and 39 Cyc. Usury, 935. ■ 



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In 5yl T»ft«r t* Swani 87 Mass* 134 » the court said: 

"Th* tranaaction prored at the trial » by which the note 
in suit was negotiatad bo the person who r ceived it as the 
first holder for value » was in legal effect equiralent to a 
delirery of the note by the promisor directly from his own hands* 
in consideration of the aoney adyanoed to hia therefor* It was 
a loan of money to the defendant on the note* The fact that the 
aoney was obtained through an agent of the defendant does not in 
any degree change or affect the legal character which attaches to 
the dealings of the parties* Until the note was negotiated by the 
defendant's agent) it did not beooae a oinding and operatire con* 
tract t upon which the promisor could be held liable* It was the 
delivery of tne note to the first holder, In consideration of the 
aoney which he lent upon it, which made the defend^^nt for the 
first time chargeable on his promise. It was not, tharefore, in 
aay sense a purchase of a note ia the market which had been pre- 
viously put in circulation.'* (See also Richardson v* soobee, 49 
Ky. 12.) 

The principle of law stated by these authorities applies to the facta 
of the instant case, yihere it appears that plaintiff knew that th« 
note had no prior valid inception and knew or should have known that 
the sole purpose of the existenoe of the note was that it be trans- 
ferred to hia for the purpose of raising money for the aaker* After 
a oareful consideration of all the facts and circumstances we hare 
reached the conclusion that the finding of the trial court that the 
transactions involved loans to defendant is fully Justified by the 

proof* 

Plaintiff contends that "where a defendant fails to testify 
to facts within his knowledge the presuaption is that his testiaony 
would be favorable to plaintiff ," and argues that the failure of 
defendant to testify raised a presumption that if he had been called 
as a witness his testiaony would have supported the theory of plain- 
tiff. Tb find no merit in this contention* Both parties agreed 
that all of the transact ions took place "between plaintiff and Mies 
Greenfield. Plaintiff stated repeatedly that he never had any con- 
versations er dealings »ith defendant in reference to the notes* 
The rule contended for is subject to certain limitntions and is not 
applicable to the instant case. In Belding v. Belding, 398 111. 216, 
220, the court states the rule as followwi 



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•12- 

•♦It 1b a rule well recofrnlzod, that where the evidence 
to prove a fact is chiefly> if not entirely i in control of the 
adreree party and such evidenoe~ls not produced » his failure 
to produce the evidence tends to strengthen cue probative force 
of the evidence given to establish Buch olaimed fact. (MorrijB v. 
Bciuitable_Life AsauranpejwQeiety of United otateB» lo-rf ]Jeb«"348, 
191 ")!f«"W."i90VT the burden of" producing' eVidenoe, chiefly, if 
not gntire ly» within the concrol of an adverse party, rests upon 
such party if he would deny the existence of claimed facts. 
( Harper v. gay Live ry Oft .«, «!o4 111. 459.) >vhere a party alon e 
poseeasee information concerning s disputed issue of fact and 
fails to brinn forward that information, and it is bhovm that 
it can be produced by him alone , a presumption arlBes in favor 
of his adversary's claim of faot. IlLreat -es t em I ail ro ad Go» 
▼• Bao on^ 30 111. 347.) " (Italios ours.T 

Plaintiff argues that defendajit might have testified as to his 
dealings with Monroe Becurlties Oorporation. Had he attempted 
to do 80 plaintiff would have had the right to interpose the 
objection that such dealings were unknown to him and not binding 
Upon him. 

In the Instant ease during the examination of plaintiff 
Tiy his counsel the follOTJing occurred : "Vhen you made these loans 
did you hare amy intention of doing busiinesa with ttr. iiuenger? 
Mr. Perel (attorney for defendant)* I object. The Court: 
Sustained." Plaintiff contends that the court erred in susitaining 
the object ioa to this question, and cites in support of his con- 
tention -Chi caga_Jitlje,&T^^ V. Ke arney, 282 111. App« 279| 
886, where it is stated t 

"The courts of this State have held that in the last 
analysis the question of whether a contract is tainted with 
usury is determined not by the form of the contract employed 
but by the intention of the partios." 

The court in that oase undoubtedly stated the correct principle of 
law, but the intention of tha parties is i.o be deteirmined from the 
faots and oiroumstances of the case. (See Glemens v. Crane , 3upra _t 
p. 229.) As well might plaintiff argue that defendant, had he 
taken the stand* might hare tesitified to his intent in the trana- 
action. Of course, In a criminal case, where th« intent is of the 
essence of the offense, the defendant has the right to testify to 
what hie intention waa in the commission of the act with which ha 









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1b charged. The caaes oited by plaintiff aj^e not applicable to 
the f&ote vf <sh9 instant case. 

Plaintiff contends that the court permitted defendant to 
Impeaoh plaintiff upon an Iflunatarial matter. This contention ha« 
reference to the icatter of the sworn bill of complaint filed in 
the Cironit court of Cook county in Johnso n v. iipyeninu^hlej,__Ino. 
We find no merit in this contention and v;hat v/e have heretofore 
said in reference to that ovidenoe covers the instant contention. 

Plaintiff contendB thiit there is a variance between the 
allegations in defendant's petition and the proof. It is suffi- 
cient to sayt in answer to this contention, that the question of 
the alleged variance was never pointed out or raised during the 
trial of the cause and cannot be asserted for the fir&t time in 
this court. It is apparent that this contention 1b an afterthought^ 
ae plaintiff 9 at the eonolueion of defendant's evidence* made no 
motion for e finding in hie favor on the ground tlaat defendant had 
not made out a p ri»a facie case. On the contrary, it appears 
that plaintiff considered that a prii a facie case had been made, 
and introduced evidence to rebut defendant's proof as to the alltfsd 
usury • % 

Plaintiff has had a fair trial and the judgment of the 
Municipal court of Chicago should be and it is affirmed. 

JUDGMBHT XIWmMI'D* 

Sullivan and Friend, JJ., ooaeur* 



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38291 

JACOB S/onniL, 



Appellee , 



Appellant* 





APS^AL FROM SUPSRIOB COURT, 
COOK COUHTTii 



28 5I.A. 593 

im« JUSTICB JBRISStD BSLIVSRSD THS OPIMIOIT OP TES COUKT. 



1 



BotJaer SaiEUcl, complainant herein, filed a bill against 
defendant for separate maintenance and on Hoventoer 27, 1934, 
procured a decree froM wMoh no appeal was prosecuted. The deortt« 
provided for a reference to a Master in chancery to take proofs 
and report hie conclusions hs to the amount of money defendant «ae 
to pay for the maintenance and support of coaplainant and of their 
minor child, whose cus .ody was awarded to complainant; to fix the 
asiount of costs of suit, stenographer's and solicitors^ fees; to 
determine the hack alimony due under the former order of court, 
the expenses of the transcript of eridenoe* court reporters' and 
master's fees to he paid ¥y defendant. The deeree also proTided 
that during the pendency of the proceedings before the master > 
defendant was to pay complainant #26 a week on account of her support 
and maintenance and that of their child, as well as $150 as fees for 
complainant's solicitors, but that " by the allo^wanoe of said alii^ony 
and solicitors' fees, the court does not by said order indicate in any 
manner the amount that should he allowed permanently la the abore 
entitled cause." The master recommended permanent alimony of #31 
a week, effective from the date of the raferenoe, solicitors' fees 
of 1750, found that the unpaid alimony under a prior order amounted to 



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|559f and reooauuended ihai lb \)e paid» fixed the ms.ster'0 oharges 
at |768*02» reporter's costs at ^492 and complainant's ooets at 
#44 .SO* Except ions filed &o the «adter*s report were overruled and 
a eupplei&ental deeree was entered in accordance -viith the recoaivenda- 
tions of the masiter» except that the eolicitorB* fees were reduced 
froM ^'750 to $500 and the master's fees were reduced to $400, 'Defend- 
ant appeals froa the supplenental deeree thus entered* 

Th« parties were oiarried Novcwber 9» 1930, and lired to- 
gether until Jttlj 28, 1932. One child w&s horn of their marriage. 
Complainant had been a school teacher in Chiccgo prior zo her 
marriage, and had ne income or property of any nature. Jefendant 
is a physician and surgeon of some fiite^m years experience, with 
an offiee leeated at 91st street and Commercial avenue, in 3«uth 
Chicago* 

Ifumerous points are raised hy counsel for both sides re- 
lating to questions of fact and law applicable to a voluminous record 
of more than 800 pages. The ultimate question in controversy, how- 
ever, is whether the circvoastanoee of the pari;ie8 and defendant's 
income from his profession and otherwise warranted the chancellor in 
decreeing that defendant pay the various sums recommended by the 
master for permanent alimony, hack alimony, solicitors' fees, 
master' 8 fees, reporters' oharges and costs of suit* 

Compli^inant testified that shortly after her marriage ah* 
asBiated defendant at his of lice four or five days a week, kept a 
record of the patienti who did not pay cash for services rendered 
them, and sent out statements at the end of each monthj that day 
by day she and defendant went over the entire list of calls aado 
by defendant to ascertain which of his patients had paid, and that 
the names of those who did not pay were placed on cards | that the 
aggregate cash receipts from patients amounted to HO or ^50 a 



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[JOS SQ<^$ J.8 Si) BOO a'lecito^^x ,SiO*8d?4 iB 

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hot^i^*-! a&olr\'>9 ivl ■:=-;ju ■'<;^cj ^oi^ bit oU 
X«^ Jiuij uiinpn AoAQ to bat 'ow-^ajj 

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Aajf •xcluelre of i;he charges that vrere entered on the cnrd 
reoordsj that her asslet&nce to defendant continued from ^Jovmbext 
1930, until shortly "before the loabj whs born In March, 1933. She 
testified further that prior to the birth oC their child dftfenda»t 
gare her $35 each week to corer food, clothing, help sm'^ incidental*, 
and after the 1»lrth ef the child this euin was increased to $50 a 
week, out of ^hleh she paid the same expensea; that during this 
period defendant paid |70 to f 75 a month for ..he rent of their 
home, in addition to his of i ice rent, expensea, Inaiiranoe and other 
neoeeearieB, which amounted in the aggregate to about 1 1,125 a month: 
ineludiag what he was paying to the banks and for installmenta on an 
autoKoblle purchased during that period for §1,000. 

It appears from the evidence that defendant engagedin th« 
purchase and sale of Tarious securities since 1921, and carried 
accounts -wi'ih four different brokerage offices and two banks during 
the ensuing period and until about 1S33. The record contains 
amserous exhibits showing statsnients froa the hanks i^nd brokerage 
houses with which he dealt, indicatlag that up to 1929, ths peak 
ye-^rs, his accounts ran into many bhoueaatJ of dollars and continued 
in lasaer amounts for several years thereafter. Through these 
transactions defendant undouhtedly made substantial profits. 

William 1. Hohumaoher, a witnass caled by complainant, 
testified from the records of the South Chicago Savings Bank, whse 
defendant maintained an aocount, that during the year 1931 defendant 
paid the hank in cash |l,715.90, and complainant contends that this 
sum was derived from defendant's earnings in his profession during 
that year. Harry J. Rolewieip another witness, testified that he 
had charge ef the records ef the Union State Bank of 3outh Chlcaip f 
and hy stipulation of counsel it was agreed that defendant paid in 
cash and not for the sale of collateral ^5»600 during 19;il» ^hich 



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cOBplatnant also contaada wee. taken from his professional ep.rrilnift 
during that period* The aggregate amount, thus shown to haTe been 
pa-iA by defendent to the two banks in 1951 was |7,315.99f or an 
arerngB of f609,66 a month. In addition to this sum, defendant's 
monthly outlay for oash, during that period, acfording to complain- 
ant's testimony, was OlSO for their horns expenses, including foed» 
clothing tnd ineldentala, $90 rental for their apartment and garage, 
|156 for office expenses, #20 a month for laundry, gas, eleetric 
llf^ht and telephone, and i^lOQ a month on account of the purchase of 
a new Buiek automobile. The total monthly outic^ during 1931, 
including the sums paid to the two banks, approximated ? 1,125. Com- 
plainant testified that defendant's income was more than $1,200 « 
month, and the foregoing items of expense incurred during Ifee year 
1931 were introduced in evidence to sustain her conclusion whieh was 
baaed on information ac.uired by her while assisting defendant at 
his office, indicating, as she testified, weekly cash receipts of 
from I 250 to |350. 

Defendant by way of defense produced record cards tending 
to ohow that during the twenty-three months preceding the hearing 
before the master his inoomo, deriyed entirely from the practice 
of medicine, amounted to the grosn sum of $5,618,215 that his total 
OTerhead for professional practice, including insurance premiumo 
daring that same period, amounted to f 2,469 .90, leaving a net in- 
come of t3tl48.31, or a monthly average of Jfl36.88. It is argued 
that in no event should the reasonable payments for alimoi^ to support 
complainant and her child exceed one-.hird to one-half of defendtuit* » 
income, and that in the light of defendant's tea-iimon;' the amounto 
fixed by the supplemental decree are so inequitable as to warrant a 

reversal ther?(of. 

3)efendant denies that he gave his wtfo an allowance of #35 
a woek prior to the hirth of their child and that ho increased tho 



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9ai:i£S bite itxsr :.ii-:ir.0X ,0*$ ,8L£,fli«»fti^lsi Iwt . ■j^tdi^.L^ 

1© »6i/«iioii/q en ? r5or{c^f?X«# feiw JrfstJM 

tS£Ql sniiifl"' X^IUic v.Irf^inoffl I«i^o? sriT .®IrtfPj»D^B« csJaJfiS wee a 

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eoJt^ofiTq: e^JJ jBoi't \lbxiia9 b^riisb tsciooKi Ksiii ttaitws sriJ istolo^r 

X«;foJ aixJ isri^t ;XS.8I0,e'? lo {our boi: u^it'iuj^cm* tsnioihs-m li> 

BMUii^-xq &on«iL'Bai "ifiibJjXottx t&oii-: oiaso^oi^ tflt ftiJoilisTO 

b^u^iA ..iQtbi^l'i to 9%x.'.x9r^ xltOfctom /? o tXA.ei^itSl 3:© ««tr9 

■wri»0nc«g «»Xtf«itOBP< >• rr ci i»di 

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-6» 

allowance to t90 a w«ek after the child wpb Tjorn. He stated th*t 
hie office rent at the time of the hearing '.v^g ^27#50 a month, bar- 
ing "been reduced fro* t'35j that he bad no assistant in hie offio«f 
and a dentist next door answered his telephone and took hie calls 
when he was outj that his clientele is made up principally of the 
laboring class » from the steel mill district, many of whom viere oat 
of work and were unahle to pay their obligations? that his offioe 
hours were from two to fire o'clock in thd afternoon, and from 
B3Ten to nine in the evsning, in addition to which he made calls 
during other hours of the day and used the Buiok oar, purchased la 
April, 1921, for that purpose; that his garage rent was f8 a months 
that he carried life insurance to the extent of #5,000; and he 
denied that his practice had at. any time amounted to $40 or $50 a 
day. He testified further that he kept a daily cash liook, beginning 
in January, 1935, wherein he entered from day to day his cash re» 
ceipts, and this book was intreduced in eridence. In ad 'Ition 
thereto he also produced his eard record system, giving the names 
•f pat lent a » the amounts of the ah.B.vgen and the payments made from 
time to time. To supplement his cash book and card system, defend- 
ant prepared a sumtrna:)^ in which he set forth, month by month, fer 
the period of twenty-three months preceding the hearing, his re- 
ceipts, offioe expenses, insurance premiums and bis net incomet from 
which it appears that for these twenty-tiuree months his net income 
amounted to $3,143*31, or an average montlily income ef ^138 •88» 
Defendant kept no record of his disbursements, otho- than oaiicelled 
checks and receipted bills* 

The income sheets produced by defendant were» aecordlng to 
his ovm testimony^ made up from the record cards v.hich were kept la 
his desk. He stated that prior to 1935 he failed to pu^ down the 
year on his oard record, and was "kind of careless. I didn't think 
it was necessary," T»at that in 1933 he changed his plan and began 



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♦ aXIxcf tM»Jq;i5».o»i »»« «Jio»rf8 
Ov itifti. toooA %.9fm 7fcsl}fi&)i»b x<^ jQ^tiurbcxq eJt3»iia MKOO0J: e»ii't 
ax v'^twi 3rt9u rioi.l abrtao fatosfit ^di w^t\ qu i^imy tvnosjt. ^^i avio niA 

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noting tha year during v^hloli the serrices vare rendered and pfiy- 
meats made. To support his testimony defaadnt produoed one 
John Springer, v»ho testified that he had be n sngagad by defendant 
to examine :he cards and if possible to bring some order out of 
chaos* Springer teatifi 3d that there v/ere approximately 1,000 
cards, and that mor.i than one-hcilf of them were not d.ited > that 
"from the age of the cjirds they might have gone back ten or fifteen 
years. I could not determine that." The master found that defend- 
ant's records were incomplete and incorrect, and that "no oomploto 
set of books was kept by defendant." This is borne out by Springer ig 
testimony, .«ho merely sumiLarixed defendant's receipta as indicated Ity 
the card records from July 1, 1933, down to December 1, 19S1, and 
stated on croso-examination that he found errors in defendant's 
computations, indicating that items agrregcting f351.50 hex not been 
included in his total and t;hat iteaie amounting to f'Sl haci erroneously 
been duplicated in the list prepared by defendant. ?or the period 
covered by >>pringer'B examination, defendant's cash rsoeipto amounted 
to approximately ; 5,700, but no aatisfi-ctory aho»ving is made as to 
chai'ges other than cash derired from his practice. It is solely fro* 
this evidenoe that defendant concludee that his average monlhly in- 
come during the period of twenty-three o^ontha preceding the he.riag 
was |136%88* 

Complainant's counsel sought to impeach defendant's testi- 
mony by shoeing that in April, 1933, a petition ^as pending before 
the court recuiring defendant to show cauee uhy he should not be 
attached for contempt for failure to pay alimony under the court's 
order, and that defendant then filed his sworn petition praying for 
a reduction in alimony; that in his ansTver to the rule d^fendf^jit 
stated that "his average income at the present time from all sources 
is approximately 125 gross par month," and in his petition for 

reduetion of alimony he made the same statement. Upon the heariac 



f.io sffles 8«i'.- Jir!8oq 'ii bos sifitzo (^Ats- BriimTUB 9$ 

- .nelab Jivta ^jft; iia »riT - -imt^isb ion feiJaoo 1 <.&t^\ 

r.i.ii'nji^iu . - ■■■ .'■-:'<"■' "''' ry "'buloai 

«o:r^ ^JI--;Xc' .'.ol*o«t<i aid ate i bsviisb i- o asAi. ?«il<o a^ag-iaMo 

•Totetf ^ai'.Heq ei, ■ n^ if&it$, a»ir«oria -ygit -^p« 

rtoi*i^»f/ move. . i-mim^lastit 4»tLi btus tiaJbi© 



-7- 



before the master* riefendant admitted these atataments were un- 
true, and sought to explain them >y ewylng that "it ought to hare 
been tl2S net. I think I vjsb Bistaken." Th? period covered by 
defendant's answer to the rule and his petition included the months 
of April and June» 1933 • It appears from the record that during 
prll of that year defendant's income v-'as aa followe: Cash receiptB» 
'90.251 card Index, Cl56»50j receire!; from ICoyea & Co. (brokers) 
|'.571,89, - Making a total of (318. 64, Hia expenses for that month 
were ^159 .81, leaving a net income of * 658 .83, instead of -125 
groBs, as T^as atateci in his verifisd pleading. I/uring the month of 
June, 1935, defendant's cash aocount shows receipts of $98.50, in- 
come as shown by his card index of $132, making a total of $230.50, 
as against an expense item of .t67.85, showing a net income for that 
month of 1^162.65, not including sums derired from sales and trading 
la securities duxing that period. 

In addltioa to the income from hie profession and profits 
made through the purchase and sale of securities^ the evidenoe dis- 
closes that defendant recslTed a one-third interest la the estate 
of his father, which was pro1»ated prior to the hearing 'before the 
master. There is evidence indicating that subsequent to his father's 
death defendant transferred real estate and securities to other 
members of his family, and made payments to his mother which hs 
stated were on account of advanees made to him by both his mother 
suid father, and for board due and owing to his mother af ^er he ha4 
become separated from complainant. Many sf these tranaaotions were 
negotiated through defendant's brother^ who kept notebook memoranda 
thereof and testified with reference thereto. The record is replete 
with contradictions as to these transactions, howevery and it is 
difficult at best to trase the various items paid back and forth 
between the members of the f mlly as shewn by the notations in the 



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i^radiat aid oj i«eupearfAi, ... :,.,. , _i- x 

ftaiC ed 19. In lerftfuD. 

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9di ai mn^timica etii xd xt^od^ ss \Llmi^t ^rii 'zo BtvdamK edi assw^ad 



-a- 

meaorandum book and as teetified to 1»7 defendant and hie brothor* 

WMle conceding that defendant dealt extenairely in 
eecuritles during a long period of tine, both before and after 
Mb ajarrlage, running Into vast suas of money* and that during 
the year 1931 he paid to the two banks homlnbefore mentioned suns 
aggregating ? 7,315.90, in addition to the expenses of his household 
and offioof inauranoe premiums and installments on hie automobile^ 
vi/hlch, based upon the most reasonable estimates, exceeded a monthly 
arerage durlag 1931 of | 1,000, it is argued that this evidence is 
immaterial to defendant* a earnings and Income as of the time of the 
hearing before the master. hile it may be true that defendant's 
Income from both hie profess ioxtal practice and other sources may 
have decreased subsequent to 1932, when the parties separated, tho 
evittence throws some light on the station in life of the parties 
during the time they livad together as husband and wife and It cer- 
tainly tends to corroborate the testimony of complainant as to his 
income from professional souroes at an earlier period and to afford 
a guide as to the relative credibility of the parties. hile the 
master's findings are not concluslTe and may be reviewed, ^we think 
that a eareful examination of the record, upon the salient question 
as to whether or not defendant had a sufficient income at the time 
of tho hearing before the master to justify the charges contained In 
the supplemt^sntal decree; leads to the conclusion that the evldenee 
abundantly sustains complainant's contention that the sums fixed by 
the supplemental decree M^ere reasonable and in keeping v/lth defend- 
ant's income from his profession. His contention that he had a net 
monthly income of only #136 for the twenty-three months ending in 
December, 1934, is not sustained by the evidence. It was incumbent 
upon the master to determine the credibility of the various witnessog, 
including the parties to this proceeding, and if he fovuid in the testi- 
mony of defendant such discrepancies as would Justify him in coo- 
eluding that defendant's testimony was not reliable, and that ho 



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3i*XMj"- J --.a.. ( . • ^'fcfiv o^faJt fir' •■ , ■;•■ '-.ai aM 

oxlesJJorl sxxl to sesftscr' ;oi:<Jl£.i>. ; . ., aaii^aaaTg^ 

x?lidososur e.ld no ainwaxil^j- ;cififixaipi<i »'0*j'«*x»»ii^ t r- •:) v "^ • o biis 

Xfia aaoxuov. 'x&rfd-o bns 9oi:t- iri xIjcq sao it swooal 

:iJtitBb 

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•-'on.'faivo wxlw xt Li&iJXijj-eiw ;toii: ul ,:."r.&X , r)t»<fiafir0«Q: 

iiB9i 9iU fil boiXfti aii \t ;>a» ,sfllft©«owct #W* e4 ««i*')UH[ erf* litrlfeyX^Bi 

•lit 1ai{« hoc (elcralXot .foil esw ^c^OJoii^efttf A^iBMba»t»b ifjufi sniMflo 



.9- 

eought, unsuccesfrfullyi to ainimlaa his eamlnffs and aaasts dttrlng 
the period in question, the master was Justified in placing greater 
reliance on the evi-^ence adr;uoed by complainant and in makiag tlia 
recoBuaendatiens adopted by the court and incorporated in its decree* 

Defendant els© questions the Bolicltors* fees allov«ed eoa- 
plainant and tie master's charges. We have carefully e.camined 
thaee itema* vid so far as the master's charges are coucornod vre 
find thea reasonahle. It is urged that in computing solid i>ora* 
feee the master and court allowed oomplainant* s solicitors to in- 
clude serrices rendered in the prohate court. Te think the services 
were necessary* The proceedings In the probata court were had 
during the perled in which the separate maintenance suit wae pending, 
and the services rendered by complainant's eolicitors vers calculated 
to discover and develop assets belonging to defendant, and sera 
properly included in the award* fter a careful examination of the 
entire record » we are satisfied that the supplemental decree is 
based upon sufficient evidenoe an'? that there are no ao nvincing 
errors for reversal. Therefore the decree is af -Iriaed* 

AF^IBMSiS. 

Heanlan, F* J*, and Sullivan, J., concur* 



fasuxuwxs -^XXii'iDrr.so ©Vf- . a^gxario s'tei»iS«t ^ r* ham iamtk&lq 



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38325 



m THHl lli!A?TJ?rB OF TH!?: lil3fAW, OF 
OTaSHlA CRIMP BRIMS, MCEASSD, 





THE FIRST lATIOHAi BAlilK OF 
GElCAQOt execwtory 

Appellant* 

^ALTm CBIMP, ALFBMXi CKIISP and 
SISSSIS CRIMP HAivVST, olaimanto^ 
Appellees* 



APPEAL PROM CIRCtJIT 
COURT OF COOK COUNTY. 

28 5I.A. 5 94^ 



MS* JUSTICB raiElK) DSLIVMtSD "THl OPHriOir 05' THS COURT • 

Eageaia Crimp Brldgat tlie testabrlxj died January 20* 1929* 
Her estate v/aa probated and letters testamentary IsBued to tlie 7iret 
Union Trust & Sayings Bsoilc* Deoe&1»er 3» 1929; /.alter Crii&p» Alfred 
Crimp aad Basaie Crimp Earyey filed their claim against the estate^ 
and upon hearing 'before the proi>ate court the claim nas allowed on 
June 21, 1930, for |57»473#53* J'rom this order tho executor 
prosecuted an appeal to the circuit court, where the claim was 
allowed Decemher 19, 193C, for |31>516,74. Thereafter claimaati 
apje'ealed to the appellate court where, on November 24, 1931, judg- 
ment T/ee entered allo^iing the claim for 458 ,948. 19* The executor 
thereupon appealed to the jupreme court, where the Judgment of the 
appellate court waa affirmed at the February term, 1933, and rehear- 
ing denied at the sub sequent term of oourt* ^^hile claimants wore 
taking steps in the probate court to enforce the payment of the 
claim, the executor, on October 25, 1933, whioh was four years and 
nine months after the death of the testatrix and more than throo 



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lodut vi- '..j'.:o axiij inou^ ,e3.gV:^t"5'*2^'p ^ol tOeCX ,12 amit 
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-2- 

years after the original allowanee of the claia in the probate 
court » presented bo the probata court "a petition for Xeare to 
file a petition im the nature of a bill of reriew to reriew the 
allowance of the claim of lalter Gximp, Alfred Crimp and Bessie 
Crimp HaxTsy*" To this document was attached what is designated 
as a "petition ia the nature of a bill of review to reriew the 
allowance ef the claim of 'iialter Crimp* Alfred Crimp and Bessie 
Crimp Harrey*" which included the affidavits of Fraiik H. MoCulloeh 
and James H* Cartwright. The probate court denied the executor th« 
right to file the petition^ and upon appeal to the circuit court a 
like order was entered » from whioh the executor now proeecutes 
this appeal* 

The olaim la the probate court was for money collected by 
Bugenla Crimp Bridge » testatrix* as trustee for claimants under aa 
agreement dated December 29 « 1893f made by her in her own right am4 
as executrix of the estate of illiam 0* Crimp* father of elaimants* 
and Hzekiel Smith and Joseph Saetman* The claimants took the 
position that all knowledge of t^he trust agreement and the moneys 
paid thereimder was fraudulently withheld and concealed from them 
by the lestatrix* and that no knowledge of the contract or the moneys 
/paid ever came to them until after the testatrix's death in 
January* 1929* 

The executor's petition is a voluminous dociment* appearing 
on pages 4 to 56 of the abstract of record* auad is predicated upon 
evidence alleged to have been discovered since July* 1933* of whioh 
claimants are alleged to have had complete knowledge* thus barrlmg 
their rights against the estate ef grounds of laches . The petition 
shows the allowanee of the claim in the probate* circuit and 
appellate courts and the various proceedings resulting ia the 
affirmance of the judgment by the Supreme court* The ooinion? of 
the appellate and supreme courts are set forth verbatim therein. 



•s- 



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It is alleged that in order to aroid tlie defense of lache ji j ^ 
Interposed "by the executor to the claiut vaxloue rrlende and 
neighbors of daceased testified t.liat they had never heard of the 
existence of the trust and uhat .alter Crimp » one of the eXalmantSf 
stated that after reading the will of his iaother» the testatrix* 
he made a search In uhe recorders* offices of v/ill and Cook 
counties* the office of the clerk of the prohate court y interriewoA 
certain lawyers and officials of the Continental Illinois Bank t 
Trust Company, called upon certain friends of deceased, and tbat 
the first time he saw a copy of the contract involved was when it 
WPS produced in court on July 11, 1930. In order t© seet the 
aforesaid tsstimony of clnimants seeking to avoid the defense of 
laches , and to show diligence on the part of the executor, the 
petition further alleges that the executor and its counsel spent 
much time and effort searching for evidence of knowledge on the 
part of claimants of the existence of the trust created hy the con- 
tract in question and in searching for the originals of releases or 
evidence as to the contents thereof^ and that within t'^o months 
prior to the filiag of the petition no such evidence from competent 
sources had "been discovered or brought to the attention of the 
executor* 

The newly discovered evidence upon which the petition is 
predicated and by which the executor sought to prove that claimants 
long had knowledge of the existenoe of the trust, consisted of two 
items, first , the letter of Patrick J. Sexton, assignee of the 
interests of ho.h Smith and i&stman in the contract entered into 
by them with testatrix, which was found in the files of the circuit 
court of Cook county in cause No* 263,174, being an appeal hy the 
estate of Patrick Jt 3exton from the allowance of a claim in the 
probate court filed by Szekiel Smith. This purported letter was 
attached to a stipulation of facts and was dated December 26th* 



iV; J stadia ( - )*uyis»Ji:ffl »ia[4^ -^cf beto^iaitxti 

iooO bits I aeoillo 'B-ofctoa^el ©^ ts«« a sfcsa «lf 

, 9B«t)osb lo sfansirl niai^ea noqts beilBO «"^tit«q:£a«>0 tswiT 

; o;.S'.:;]"JCi'b wc-is o:* fcH.ffl t gedp.gX 

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il iwliijaq oif^ itolilw aoqu eonobJva betiawoaib >cXw&it ©lil* 

0i.i y.0 boSaiano:, «ii;U':^ wXwOfssC bifSi ^^^X 

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There was no yeax after the date. That portion oi" the letter whioh 

is material to ths Issues herein liivolved followst 

"ilrs. Crimp vvasi here v. fev* dayki ago a,t- my suggestion ehe 
1»rought Dflth her tha account of charges she had zaade on the children 
ac c oun t and t he piacjBt /bo y t^nd the ^-irl^ were also with her . Sh» 
tall ced to theai alBout turniag t he m.t ter oVer to her a nd t ^y eald 
they" V oVld iTke to har e l"i arranged That way «" 

Second f a letter presa oopy of a releftee dated December 20, 1904^ 
found in the letter press book of McCullooh & McCulloch, aUorneyt 
representing the executor of the estate of PEtrick J. Sexton, de- 
ceased , the material portions of which are es follows; 

••Chicsgo, Decanber 30, 1904. 
Ym AND IM COHSIi>.SRATIO¥ Of the sum of 'fwelye Thoueand 
F/re Hundred "Oollara (<; 12,500) bo me in hand paid, the receipt 
of which is herelay acknowledged, I I^genia Crimp Bridge (formerly 
Sugonla Crimp), as Executrix of the last vjill and testament of 
WlllloBi Q. Crimp, deceased, as trustee, and in ray own personal 
right, and as assignee under and "by rirtue of the terms of an 
assigrawnt executed the 25th day of March, A. 'J» 1902, hef»7een 
??alter U. Grimp, Alfred Crimp and Bessie Crimp, parties of the 
first part, and "lugenia Crimp, party of the second part, of the 
rights of Salter 1» Crimp, Alfred Crimp and Bessie Crimp in she 
contract entered into the 29th day of i^eceaber, 1893 between 
Izekiel .^imithj Joseph ISastman and Jugenia Crimp, and the proceeds 
arising therefrom, release and discharge the estate of Patrick J. 
Sexton, deceased, the Merchants* Loan and Trust Company as 
Hxeotttor of and Trustee under the last will and testament of said 
Patrick J. Sexton* dece^ised, the widow, heirs, legate€;s and deviseea 
of eald Patrick J> >iexton, deceased, Bzekiel f;mith, Joseph Sastmanf 
and their reapeotire heirs, legal reprasentaiiveti and fe.3tign8 from 
all claims, rights and obligations of erery sort and nature. * * * 
I Ti^lease- and discharge tha eatate of x';,T.rick J. 3exton, deceased, 
his Executor, ^idow, heirs, legatees and deylsees from the claim 
this day allows in my favor against Lhe estate of said Patrick J« 
Sexton, in tlae Probate Court of Cook County, * * *. ' 

Attached to the petition is the affidavit of James H* 
Cartwrl.^ht as to the diligence shown by the ex cut or and its nttornaift 
in searching for evidence to sho^ that claimants long had knowledge of 
the trust agreement, and the affidavit of Jrank H« McCulloch, stating 
that >.ie had prepared the original release from v/hich the letter press 
copy was made and v^as familiar with the provisions of the contract of 
December 29, 1893 » as well as the various assignments thereof men- 
tioned in the letter press copy of the release; that vhexk the release 
was drafted he "satisfied himself that said assignment did in fact by 
Its terms assign to 3»geala Crimp all of the interest and rights %t 



dotdw tracf. 



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Valter E* CrlMp* AlfrecH Crimp aad Bessie Criaqp under the oentraet 
of December 29 > 1893 1 and that "before permitting the Uerohanto Leaa 
is TrttBt Co* to pay to l<}ugenla Crimp Bridget personally* the »vm of 
TwelTt Thousand PiTe Hundred ($12,500) Dollars he satisfied hi«»elf 
that said assignment was genuine*** 

Aside from the contention that the prohate court had Juris* 
dietioa to reriew the ellowanoe of the claim, it is urged that tho 
petition stated suoh facts as ^ottld not justify the court in refus- 
ing to reriew the same. It is argued that the preferred erideaeo 
conolusirely shows that the trust had been discussed ia the presenee 
of two of the beneficiaries aad that the third had joined ia a re- 
lease of his rights thereunder* The forepart of this argument is 
hased apon Sexton* s letter of I>ecefflber 26thy addressed to sSsekiel 
Smithf wherein he purports to adrise 3aith that Mrs* Crimp had called 
on him shortly prior thereto at his suggestion and brought vtith hor 
the account of charges she had made against claimants* interest ia 
the trust, and that "the oldest "boy and the girl were also with hor 
she had talked to them about turning the matter orer to her nnd thoy 
said thoy would like to hare it arranged that way." By this letter 
it is sought to prove that the testatrix had kept accounts and that 
two of the claimants were at Sexton's office with her and therefore 
must haTe lesxned of the trust agreement. Helatire to the questioa 
whether testatrix kept accounts, her oldest daughter testified on the 
hearing of the elaia in hoth the probate and circuit courts that her 
■other kept no books, and in fact no hooks of account were orer 
found. Oa the secoad proposition, one Jacoba# Sextoa* s prirato ooa- 
fidential secretary from 1893 until the time of his death, whose desk 
was in the seme office with iexton, immediately adjoining it, testi- 
fied that Xrs* Crimp always came to Sexton's office aloae and that ho 
had neyer seen claimants there. These claimants were not parties to 
the iexton litigation in the circuit court, nor is it olalaod that 



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they had knowledg* ©onoernlag either the litigation or of tho 
letter upon which the ne-s/ly dlBcoTered eTldenee Is predicated. 
In fact, It is not contended that they had any knowledge of the 
exieteaee of the letter or of the proceedings until disclosed by 
the filing of the executor's petition to review the claim. More- 
0Ter» nhile the letter states that he two children were with her 
when 8he called on Sexton^ It does not say that they ware in the 
room» within hearing distance of the conversation allegod to have 
"been had "between Sexton and Mrs. Crimp, or that they were parties 
to the convereatioa or understood what Gexten and Mrs. Crimp were 
discussing. That portion of She letter which states tbat "she 
had talKed to thea about turning the aatter over to her and that 
they said they would like to have it arrange^ that way," does not 
refer epeeiflcally to the trust moneys, and no definite inference 
can he drawn from the statmient alone that she referred to the sub- 
ject matter of the trust. Both Sexton and Mrs. Crimp were long dead 
when the claim was heard in the probate court, and the admissibility 
of the letter upon a rehearing is extremely doubtful, inasmuch as ne 
opportunity would be afforded claimants for cross-examination as to 
the trutfi er falsity ot the matters set forth im the letter or ef 
showing that Sexton was mlsr^aken, or In connivanee with Mrs. Gxtrnp* 
The allowance of the claim was jpredloated upon the breach of trust 
by testatrix, and the executor's coiusel challenges Sexton's intej^* 
rity by asserting in his affidavit •♦that from said file it appears 
conclusively that said Patrick J. Sexton, in addition to other efiorts 
to defeat Bugenia Crimp Bridge im the collection of any part of the 
principal ef the trust here involved » kept a false set of books 
wherein improper charges were made for the purpoee of convincing 
liiagenla Crimp Bridge that there was no profit payable to her from 
the Sanitary Sistrlet contract, * * *•" In view of the doubt thus 
cast upon the integrity of both Mrs. Crimp Bridge and Sexton, claim- 



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ante oould hardly "be charged with knoi?ledge of the troct upon tlie 
faith of Sexton's vague reference to thclcr presence in his offioof 
even though the letter wore admiBBi'ble in evidence. In GBrllck v» 
Mutual Loan & Building Ass*n| 187 111, App. 591, a bill of review 
set up ntijwly discovered evidence consisting of a report found in 
the state auditor's office in which certain admissions from the 
secretary of the loan and lauilding assoeiotion were set forth. The 
writer of the report was dead, and the court gaid , "at most the 
shooing is that plaintiff might hare proved eomething hy the in- 
specuor (i«e*, the person making the report) if he had not| ttn<- 
fortunately^ diod.** e think the utmoat importance to he atiacheA 
to Sexton's letter was that he might hare been a witness if he 
were alive* 

The letter press copy of the release, which oonstitutea 
the other item of nevly discov^ref^ evidence upon which the executor 
sought to have the claiE reviewed, was found In the letter press 
book of MoCulloeh & iioCulloch, attorneys representing the estate of 
Patrick J. Sexton, deceased* The Merchants Loan & Trust Co., as 
executor and trustee of Bexton^ s estate, were paying liriageHia Orimp 
Bridge 112^500 in full settlement of her elala against Sexton, and 
a general release was prepared to p.roteot the hank. By the letter 
press copy the executor herein sought to prove the recitals made in 
the docuiBent and thus lay basis for the clalB that the beneficiaries^ 
elaisants herein, hnd in fact themselves assigned all of their in- 
terest under the trust agreement to 'Eugenia Crimp Bridge, their 
stepmother. It may be af>eumed that ICr. UcCulloch prepared a re- 
lease at that tins to be signed by olainiants, but the original of 
the release wns never produced und there is nothing la the letter 
preea copy that could be conBidered as competent evidence oo prove 
the execution of a release by these claimuats. Mr. MoOullooh's 
affidavit stetss that he "was advised that alter S. Crimp, Alfred 



iO gal.sJtaiton sacebiv© bftt@vo^oi : qw Jos 



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ni •bMU eJ' ' r'.t sto o^fi/i^ftJif 

-', >j<*l art- ni sixfjl.}9{i . ■ ^'Er^iOTcr t^to'T? 

■. ' '•:r:-U'>^ . -rT- 



-8- 

Crinp and Bessie G'rlaip Harvdy» the benef iciuriee of the coutract 
of Decemlsar 29 » 1393f had assigned to Svi^enia Crinp Bridge all 
of her right, title and interest in and to the proceede of that 
contract »" ^ut it doee not aay from >«hom he obtained that infor- 
mation or that he erer talked to any of the claimants or any 
attorney representing them* and if he were permitted &o testify 
his evidence v;ould not he any stronger than the affidaTit attached 
to the executor's petition, liir^n. if he were permitted to identify 
the letter press copy as a correct copy of the original releaeey 
there would still be lacking the necessary proof that these elaimants 
executed the assignment » and without that proof or competent eridenoe 
that they h?d signed the aasignment or knew of its existence, they 
could not be charged with knowledge of the trust. Mr. McCulloch'e 
affldarit further states that he "was Informed** that clatniants were 
of age, but he does ziot state vshere he rpceived the Information, and 
eridently affiant nerer talked to claimants themselrer or had »qr 
personal contact with them. The pertinent ultimate fects sought to 
be established by the letter press copy and 1&. KcCulloch' s preferred 
testimony were whether ol<'iimants really executed the asBignBients or 
had Buffioient understanding of the transaction to charge them witk 
knoT;ledge of the existence of the trust, and neither of these facts 
are convincingly established "by the newly discovered evidence la the 
form in which it is presented* 

Bills of review and bills la the nature of bills of reriew 
may be predicated upon errors appearing on the face of the record, 
fraud, and newly discovered evidence. For errors appearing oa the 
face of the record, and fraud, such proceedings may be filed without 
leave of court. (Harrigan v. Co;mty of Peoria, 262 111. 36, 41 1 
ges tor Johnson i tfg« Co» v. Alfred Johnson Ska te Co«^ 266 111. App. 
130, 138*) Where it is sought to set aside a decree oa the ground 
of newly dlscoTered evidence, however, leave of court must first be 



j^rf^ To abe-^oo-sc has ffir ;^ae■3:©*^?f feft« eXiii «*i!ft^i'r *c»li to 

i*ii*Dii>.uj ,iOi, . _ .i.cJS9C!sn 0iCt sa-t2J«>«i; »# XXMcr jblwow exaii;^ 

-,.r;-. ,^- ■-, , . f.sar.ir-ir. >, > •.!:>;■ "xs^ii XI^M* *BUt# 

: , , , 6-a'3..p.rfo ad cfeit feXuoo 

Xa.3 f>£ff TO i2Yio-jE&a;r arf/ii^- ■; Y.X:^cablro 

b»TX«lciq fi '/iuoIXw "J.V '^*fjX /s4.i -^d, feefls i Itf«:t r a »rf 

«10 B^iisflXfi-^isf .33jjiiwJ!.a >iXXiAi»x r-iaiyAioXo '£*^f£it^xtw sisv xJHoasiitae* 

If, ioeeas': - gixibjiQ^oiQbfliJ ^ualaililira bsai 

eto»t »»e yjdiJieiJ brer , »Ofi»iaix© »ift ^o »sft»J^w>Ml 

♦ beJoe-seitf rioixlw «t aio^ 

#i;ot<^i>- orXi> ^^ Test* aROibftaoPiq; xiojast , < ' '•'*'* 

»tf ietit iaim ^tuo- tiov9w«ff ,»t>fl«>biv» t>»x*T'5oai:b ■\U»«n ^ 



—9m 

had t« authorize the filing of the petition or hill. There li 
tlms Tested im the oourt a discretion to d^t ermine whether the 
newly disoorered eridenee is oompetent» xhether it is merely 
oumulatiTo, and whether it is likely to change the ^e^3U^t of the 
proceeding f and when the petition la presented the court coneiders 
its statements r the affldarits supporting it, and the record in the 
original casot aad then upon looking at the ^hole case the court 
will exerciee a sound Judicial discretion In determining whether er 
not the newly disoorered eridenoe aifforda a "basis for reviewing 
the judgment or deeree, and unless such discretion has heen abused 
the deoieion Twill not l>e disturlied. ( Blaas ▼, Blzaa, 183 111. 132.) 
In the Instant proceeding hoth the prohate and circuil courts un- 
douhtedly conesidered the douhtful competency of Sexton's letter^ 
the oiroumstancea undar which it was written, the relationship of 
the parties and the prohative Talae of the statements therein oon- 
tainedf and also the absence in the lettex- press copy and Hx, 
McCullooh'e afa^idarit of convincing evidence that the purported 
releases of claimants lo Mrs* Or imp Bridge had erer been oxeouted. 
The authorities are clear that the ne./ly discovered evidence must 
he of auoh character t^hat a different; result would take place If 
it were hefere the court on the original hearing (Blzas v. }iilaaB» 
183 111* 1321 Watarawai v . Hallt 29© Hi. 75| Hes&or Johaeon llfg» 
Co. V. Alfred Johnson State Co. > 266 Ill# App. 130 )f and we think 
that neither the Sexten letter nor the letter press copy of releaeey 
even if they should he admitted In evidenee, would "be of such ooa^ 
elusive cmd deolsive character as to bring about a different result* 
The issue raised by the Sexton letter is rebutted by test^imony already 
in evidenosf and the letter pres;.? copy together with Mr. McCullooh'e 
preferred evidence woald at most merely shew that i^r. MoCullooh «ae 
at the time satisfied that his desorlption of the assignment contained 



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ft^^is^L c^ae^ -..ucii^j^aiiiiioc XjjlJefixf ' ' ^ 'i..:;* vnoo \,i;.r. josto: 

^o qxifanoiiJals.- < ' lisixiw; giwliiia ssoKotfsaajo'iio erf;.' 

•%'!M aofciyiou 'x^v , . , , , . itiarie;>.sV/ .': . .eX 

^'ir'i T-rr btrr. tiCZL .crn ' .1X1 0?5. . . ■ it^A i-r .,r: . ,.,,_,_ . y ^yp 
»'- • . :-jn -•- CfC'.I it; ■'■.{(iici:: J «;;;.; 

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.10- ' 

in the release was correct « ¥ut it coxald not change ihe result 
or tue hee.ring without teatlniony that claimanta in fact executed 
the aaai/j/xraent or had kno7?ledge of the trust agreement. This 
apparently Mr. MoCulloch was unahle to prove, and no other eyidenoe 
is suggested for eetalsllshing that eHBcntial fact# 

In their reply brief executor's counsel argue that Sexton'g 
letter to Smith, containing a report upon partnership matters and 
also upon th« liability to ?=rr8. Criap Bridge, contained meaoranda 
Bi3.de in the ordinary courae of 'businsss and constituted admissions 
against interes^t, and that the letter would be admissible upon that 
ground. Holding as we do that the letter ie too rague and unsat- 
isfactory to af 'ord any competent basis upon which the claim should 
be revie^Jfdd , wg d^cm it ^lnnecessa^y to further extend this opinion 
by a consideration of the legal ground upon which the letter is 
sought to be introv]uceU 

Ths only other oontroTsrted question bet-^een the parties 
is whether the probate court had jurisdiction to review the allow- 
ance of the claim upon the petitions presented. In view of our 
conclusions as to the merit:? of the petitions^ it miIII be unnecessary 
to consider the juriEidictionpJ, question* 

We are of the opinion that nelthsr the probate nor circuit 
courts abused their discretion in refusing to allow the executor ts 
file the petit ions» an?? the judgment of the circuit oourt is there- 
fore af-°ixmsd • 

AFFIBJfSj, 

Soanlan, P. J., snd Sullivan, J., concur* 



-01- 



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38405 



MARIS COHBOY, 

Appellee* 

▼ • 

HRS* HAKBY J. BsSHJSf, 
Appellant . 



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APPEAL 1?F:0M SUPERIOR COURT, 
COOK COUNTY. 

28 5I.A. 



O 



94 



t. 



MR, JU3TIC3 FRIJSD D3LIVJ3RED THS OPlLilOH OP THS COURX. 



Plaintiff sued to reoorer damages for personal injuries 
sustained by her while riding as a passenger in defendant's auto- 
mobile in Hew York city. Trial was had by jury, resulting in a 
Terdict and judgment for #4,000, from which defendant appeals. A 
special interrogatory was submitted to the jury inquiring whether 
defendant was driving her automobile at the time and place in 
question in such manner as to constitute a willful, wanton and 
malicious disregard for plaintiff's safety, and the jury answered 
the interrogatory, "Yes," and returned same with their general 
rerdlot. 

The essential facts disclose tlmt plaintiff was employed 
as a maid in defendant's household and had temporarily accompanied 
her to Few York city. While there, on August 14, 1932, after plain- 
tiff had completed her duties for the day> defendant invited her t« 
go shopping. Later they drove throuch Central Park and ultimately 
arrived at a restaurant at 60th street and Lexington avenue, at 
about ten p« m» Plaintiff ordered a sand'Aioh and coffee, and 
defendant took whisky» Shortly after their arrival some of defend- 
ant's friends came into the restaurant. Defendant asked plaintiff 
to wait for her, and accompanied her friends to the rear of the 
restaurant where she remained until about one ft*m« She thea 



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returned to plaintiff's table* and they left the restaurant to 
return home* Defendant drove the car and plaintiff was seated 
in the rear. As they approached Third avenue, plaintiff noticed 
that defendant was driving carelessly, she thought, and faster 
than she should, and requested her to drive slower. Defendant 
replied, "donU worry, Everything is allright," According to 
plaintiff's testimony defendant continued to drive carelessly and 
plaintiff esked her to stop the oar bo that she might get out, but 
defendant refused. The ear was then proceeding at the rate of 42 
miles an hour* Shortly after this conversation the car swerved to 
the left and ran into an elevated structure. Plaintiff was rendered 
unconscious and driven to the KLower Hospital in a taxicab. She 
remained there from August 14th to August 27thf and then returned 
to Chicago with defendant. 

Plaintiff submitted her ease by first taking the stand in 
her own behalf and testifying to the events leading up to the accident. 
On cross-examination defendant»s counsel interrogated her about a 
written statement given to one Paul Menges, dated November 3, 1932, 
by which defendant sought to impeach plaintiff's testimony as to 
the manner in which the accident occurredi touching principally upon 
the question of the willful and wanton manner in v/hich defendant was 
charged with having driven the ear when the accident ocotirred. Cer- 
tain portions of the statement pertaining to the injuries sustained 
*y plaintiff are as follows* 

"When the car struck I was knocked unconscious. The rear 
vxew mirror broke and that hit me over the nose and right eye. I 
did not regain consciousness until I was about half way to the 
hospital. I remained in the hospital for two weeks. I was under 
the Doctor's care until I left Hew York about September 13th. Since 
I have been back here I have had Ikt. Gustaf son, a woman doctor. 
* * * The doctor says it is necessary that I have an operation 
very quickly to avoid my lower eyelid from drooping down and to 
save the eye. There was some infection and this drained out 
through the right eye. There is still a little draining. The 
JDoctor also said there might have to be some skin grafted there. 
There was some of the eylid torn or cut out at the time I was hurt. 
1 have a little obstruction in my nose on the right side." 



bBiiiii>» aas7 tziini&lq, baa i£>a sxtJ svo^b onsbnslsCI ^Biuod. atu^iox 
tc«*a£5 bxiB ,iil8«arf^ eria ,\;Xaa9X9ijao giiivl^b says injsbnal^b ;JxxiJ 

Oi axil£>TtO'jo-H ".dila-t'iXIiJ ei anM^\;ii9y=^ t^i-x' ' jfesiXqei 

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iutS fiuo oiVi xia ^.^d. ■> - - ^ r©ii bsjfwis I'lxiaisXq; 

.nJtbeeooiq aajiff Si^w i^io sriT «b»ajurl3i Jnabnalsfo 

oi beviav/a '£»5 eMf* nol^sattsTnoo sxili -mils. x;X*ic©jtei . :^wofi n» aeXia 

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•1»»0 .boT:tiToo« ;»«»bxrjioja axicJ n<»xiw 'i dJiw besxado 

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Bridle GilBiore was next called as a vitnees on behalf of 
plaintiff* She stated that she had naen plaintiff on June 8y ld32« 
prior to the accident* and was about to testify ae to plaintiff's 
|»hysieal condition at the time v^hen the following ensued! 

*{i« And what was the physioal condition of her face at 
thFit time? 

Ifr* Keogh (Counsel for defendant)! Judge* v?e can shorten 
this. I do not question the injury* I mean* if this is to show 
she was all right before she v»ent to Haw York* 

Mr* Johnson (Counsel for plaintiff )i Yes* 

The Courts All right, Miss Crilniore, we will excuse you. 
There is no question about the injury? 

Er. Keogh: Ho» there is not* Judge." 

Neither Dr. Gustafson* who had attended plaintiff after her 
return to Chicago* nor the physicians who attended her in Hew York* 
were called as witnesses and no medical testimony was offered to 
prore the nature and extent of the injuries sustained* At the 
conclusion of iliss Gilmore*s evidence plaintiff rested* Defendant's 
motion for a peremptory instruction was overruled * and Paul Men^oo 
was thereupon called as the sole witness for defendant* His teetl* 
aM>ny related to the manner in which the foregoing statement was pro- 
cured from plaintiff, and was offered solely for purposes of im- 
peachment* 

Prior to the hearing defendant had made a motion for a oon» 
tinuance on the grotmd that defendant was absent in Hew York. It 
was an oral motion, and no satisfactory explanation was made for 
defendant's absence. Counsel urges the court's refusal to grant 
a eontinuanoe as grotind for reversal* However, since the Civil 
Practice act requires that such motions be supported by the affi- 
davit of the party so applying or his authorized agant (111* State 
Bar itat.* 1935, chap* llOj par* 237* rule 14, p# 2453), and no 
such affidavit was presented, we think the court was justified im 
Its discretion in overruling the motion. Before resting her oaoo» 
defendant's counsel offered evidence to explain his client's 
absence from the trial, and the court permitted him, with the com- 



lo \I«xf»rf fl© f^a«niin Llm *x©ft naff enoBttiT) siblia 

fttl-iiiBiAXq 04 RT. -^jliJ-es^t oi ;teorfjp srv fens tJcrsbiaca sii? o* ^ottcj 

%-ilzoY wsH o5 XIs a.««- jirfa 

• tfOX ««U03t9 XIxw s« «eto (. i XA t *-iifoS ©iS'I 

•i'-^xi^inx tiiJ curod^; it' ' , Off a.r Jiis^nl 

oJ ' T'^'>1o .'.rvf • f ;0!!ii ^ '- ;: Xr.oJfbctt on brr.3 n©Br?3K5>iw a« &dXX&o ©X»w 



~ .: .viflabnoleb tot aaonui- ' '- "^ -^.^■Js•£&Iii e^-iw 

8;>/;:^c. ♦XXt) irm-/?y^ hftsk'totiiun ahi it iwni '^C^'iB^ otio' vife 



' ?l: -:,:.. 



-BOO •ili ^-"i-' «--^'^ '-J 7 ;.;;•» 



-4- 

eent of plaintiff's counsely to have the record shoUt without 
any explanation for her p.Tasence, chat defendant was absent fro» 
the city and not arailable ae a v/itness. Defendant then Intro- 
duced in eTldeno« plaintiff* s sttitemeat obtained by Menges, and 
rested her case* 

The court thereupon iniUired whether there waa "anything 
else»" and the following ensued t 

"Mr. Johnson I That is all with the one exception that 
I would like to show the plaintiff to the jury so they viiould have 
an opi)ortunit.7 to observe the e:ctent of her injury. 

Mx. Keogh: Well, your Honor* I don* t know about that. 
Hare is a oase vnithout any msdical testimony vvhatever. I admit 
she was injured, vliat kind of an injury it is '^e don* t know; 
whether it is curable or not curable. I object to ah wing her to 
the jury. 

The Court: I am willing that the plaintl:'f may step up 
and stand before the jury and the jury may look at her. To that 
extent, without any further explanationt that raay "be done. 

Mr. Johnson: Tea. 

lir* Keoghi You will allow my objection to her showing 
it? 

The Court: Very wslli the objection will be overruled. 

(The plaintiff thereupon stepped before the jury box.) 

The Court X I would also like her to tell what, if any, 
isipairment of vision she has. All right. 

lit. Johnson: Shat is enough. Miss Gonroy*" 

As grounds for reversal it ia urged (l) that the verdict 
was grossly excessive and was arrived at by speculation and not "bj 
testimony produced at the trial; and (2) that the court erred in 
allowing plaintiff to display her injuries to the jury. In support 
of the first contention it is earnestly argued that the record eon- 
tains no evidence ox any pain suffered by plaintiff, that no nedioal 
testimony was offered on her behalf to show that she suffered pain 
or that any pain '^ould necessarily result from the nature of her 
injuries, and that no reasonable inference can be drawn from the 
testimony that any serious injury resulted from ths accident. It is 
pointed out as significant that at the close of the evidence offered 
by plaintiff the court addressed the following inquiry to her counsel i 

*'The Court: Mr. Johnson, may I in^^uirs what was the injury? 
Mr. Johnson: It is an eye injury, your Honor, Her eye was 
injured* 

The Court: All right," 






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ainr »xe naH . tonoH idox «VtMtnx f*'?:* «« ai ;fX ;noaniioC . -:- 



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.b&ajuj,ni 



-5* 

In inatrueting the jury the court carefully defined will- 
fulness and wantonneee and differentiated the same from ordinary 
negligence* but failed to include any instruction on the theory of 
exemplary cr Yindiotive damages, v/e must aeuunef therefore* that 
the Terdict of t'4,000 represents coapeasatory damages. In vie.; of 
the fact that the evidence relating to plaintiff's injuries is 
extremely scant* and is limited to the statements made by her to 
Mengee, unsupported by medical or other evidence* v;e think the 
▼erdict 1b excesBivo. Plaintiff's counsel argues that pain must 
have accompanied the Injuries* l3ut the record ia silent on the sub- 
ject. The extent of plaintiff's injuries is left entirely to 
specvilation and conjecture. There is nothing to indicate whether 
the eye Injury was of a permanent nature, and no evidence of the 
nature of the operation which plaintiff stated Dr. Gustafson advised 
her to undergo. It is argued that plaintiff •'is scarred for life," 
but there is no evidence in the record to justify the conclusion 
that the injury would produce a permanent scar. The cause wa» 
loosely tried. As heretofore stated no medical testimony whatever 
was presented to the jury from ?/hich ifc could ascertain with ajoj 
degree of^def initeness the seriousness or extent of plaintiff's 
injuries* and after a careful examination of the record v/e are 
impelled to concur with defendant's contention that the verdict wao 
reached by speculation end conjecture. To suntain a vsrdlct of 
$4,000* v?hich under the charge of the jury must be held to hare been 
based on compensatory damages alone, it should appear that plaintiff 
received Injuries of a serious and permanent nature or that she 
suffered pain, loss of employment or ^as threatened ^vith some per- 
manent inpi^irment. There is nothing in the record to so indict t«. 
Under the clreumstanees we think the case should be retried so as 
to afford plaintiff an opportunity of presenting evidence, if sho 
ean* from which another jury may ascertain the nature and extent of 
her injuries and assess daciages accordingly. 



-.«- 






0^ tad '\ctf 9£)sct 3^£(3Jite^.';;i 
^siUB iiiflii i.-Bdi ji*.^isp,tB l&ami 



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3 in^ixB JMw •Yud. 



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^.U f>©Xl0iJ91 

unQtmm 
^atmrninauorko Ml* i=«biitr 



-6- 

Durlng the pendency of thie poceedtng plaintiff moved 
to strike from the files an additional abstract of record filed 
by defendant. Prior thereto defendaait had obtained leav<; to 
file tha additional abstract. Uotice of that motion woe earred 
upon plaintiff's &ttoraey3| in accordance rvith the rules, but 
no suggestion or count ersuggestions were filed in opposition to 
the motion. Kelylng upon th^ order of this court granting leare t« 
file the additional abstract, defendant caused copies of same to bC 
printed and filed 'Vith the olerk of this court, nince no object lom 
wae interposed by plaintiff to the motion for lea.ve to file, and 
defendant had bean put to the expense of preparing the additional 
abstract, we think the motion to strike comes too late, and it is 
therefore denied. 

For the reasons st£.ted the Judgment of the superior court 
is reversed and the cause remanded for a nev; trial. 

JirOGMSFI EBTEFSm) ASD CAUS.S KSMAjrOBO). 

S«aalan, P* J., and aulllTan^ J., concuro 






«;: .; V"i\C'' { . ^ 



38497 



SOm nHH^ITTTA and 

/vppollees , 





Sberlff of Cook County* 

Appellant, 



j APPKAL 1^;0M CIPCUIT CODRT, 
COOK COUHTY. 



28 5I.A. 5 94 

MR, JiniTICiJ imisSHB Dl(!I.IYiiBJ32> THB OPIfflOH OF IKE COUEvr, 

imiifeffi :o, Meyer Ing, aa sheriff of Cook county, appeals 
fron a judgment for llfOOO ana eosts rendered against hla la thm 
oiroult court, baee^ upon damages xesultlng from a levy siade on 
personal pxos@^^y 'belonging to plaintiffs, judgment deb tore* 

Plaintiffs deolaratlon oltargeti trespass and arore that 
the ah<:?riff , on April 15, 1933 f unlawfully took and seised certain 
goods an^ oHattels of plaintiffs ^ieh vfere exeapt froa exeeutlont 
also that the sheriff took and seized certain oli^ttels and con- 
verted the» to his own use, and with force eLtui aras took possession 
of thd meat asrket of plaintiff » disp^asoesttd hia, looked the doors 
of his store, took the keys and refused to permit plaintiff to ooa- 
tlnua to earry on his business on the premises or to enter saao* 
TJpoB the hearing jlorenoe Ohrenka, plaintiff's wife, was aade an 
additioa«a, plaintiff, but the declaration was not amended. liefendant 
interposed a plea ef the general issue and pleaded specially to the 
first count that the goods and ohattols wore seised under and by 
Tirtue of a certain execution against the plalatiff and were not 
•zempty and that the goods were returned to the plaintiff ipril 18, 
IQZ'S, upon his filing a schedule olaisang exemption and making a 



T«*8C 









-coQ baa al6^;t^o Ai«iJidu ^G&l9s i>i!» slooi ttiicif^^ 9Ai i&Ai oaX« 

-i:or )alBXt/ ^lonaq •* baatrtei biia a^*'* «r^^* '^•♦^ ^aio^^e aid !• 

• ■' -Q oaelnoiq 9J(^ no «a«rti«»o( &bi no x^tm<> oJ aunil 

«» 9t«ir 8«v ,0tlw a*lti^lil/tXq[ t^R^'s^O aofta'xgX^ ^^al^jseii »ii:i ixoq7 

tffAlarataC tb•^ff«■s ^cw esr Aol^Mrtaioe^ 9ai iud «lH3niaXq Xt&fleidi&lui 

aiU •# ^X^ldacia babaaXq br/n t^i^rauJ; lA^mi9^^ 'BsLi \b a*lq, » fimaoHixa^iU 

ygt teA t»inr basi*:: &'z»w uXa^^^xlo &Bja ai>aa« i»ii;^ $.'U^< inuwi dsxil 

#<M rz*w ham tJkiaiAlfi mdi tauim^A aoUis^ajM nt^itc'j m 'to aui^ir 

• &X Xiiq )ti^ni«Xq adi 09 httoxuda-i artai* «5a4»8 !»iit^ ijsiii i>rt« tiqatax^^ 

m Ti^liLm fatui ool;tq«»JiC ^alMxaXa aXtrt>*^o« s uiiXJtl a^c uaqiis <£f.9.L 



tender of re&l estate. Ab to the third count, the plea ayerroA 
that pled.Btlff TOluntarily surrendered and abandoned posseeelon 
pt the etore* 

The eseential facts diaolose that in January, 1933, one 
yrank Bioar recorered judgment against plaintiffs in the municipal 
court for |723 and costs* Execution issued thereon and was 
deliver ed to the sheriff, who, on April 15, 1933, made demand under 
the execution and on the same day leried on plaintiffs* goods and 
chattels, consisting of certain meets and equipment contained in 
plaintiff's meat market in Cicero* The customary notice was posted 
on plaintiffs* store window, inventory was taken and the property 
was advertised for sale* 

April 18, 1933, three days after the levy, plaintiff John 
Chrenka presented his debtor's schedule claiming ownership of part 
of the goods and chattels levied upon, and on the same day tendered 
in writing certain real estate subject to levy, whioh, however, TuJL 
been levied upon under a prior judgment as well as the judgment 
herein, and released, presumably, because of the prior levy* On 
the sans day the sheriff also released the levy. There is a oon- 
fliot in the evidence as to whether the aheriff returned the goods 
and chattels to plaintiffs on April 13, 1933, when the schedule was 
filed, or whether he retained same until the following Monday, 
April 24th« 

John Chrenka testified that when the levy was made on 
April 15th the deputy sheriff closed the store and "pushed me out 
of the back door smd sent us home;" that thereafter notice of 
sheriff's sale was posted on the door, listing various goods cuid 
chattels levied upon} that he filed a debtor's schedule, dated 
April 17th, signed and svorn to by him, claiming certain exemptions, 
including the soalosy a meat grinder, one slicing maciaine and an 



-s- 

Xa^Joinaui wi* ni niliiaisilq ^aniisg* (tnocrsbut boiCTOosi TtAOiS Siust? 

te» si>ooB 'snivel bIo[ no bdiTSl "^b doteia »sii mo i)ae isol j'ijodz 9 eift 

ax b^al&iaoo iii^aBitU;?» iyns Qi.*i»a ttinir^o lo Ti»li^^inat)o ialeUt^^ 

fte*aoq saw soi*OH '^xeaio^aifo siiT .oiaoiO ni SsjttAm *s*?a a ♦lli^JfrlaXcr 

X^i««Iottq prf* ^»H« naat^jf saw -^to^aevni t'srofeatv? «-i©*9 'gtli^fiiaiq fiO 

nrioT, ItxjflijsXo, fTtsrsX srW te*'^3 a\;.eb asxi^* »£gtX «&X Xitq- 
i'jji;; -o qilJi9%»ti»9 ^txiiat^lo ©Xwfoeifaa s »:£o;r«f*fe alil beiafumitq a%n»iuiO 

ttad «T97»woC[ ,r(o£iiw t'^TsX o^ io&l^ua »*«i»ta X**&*i: ff/«*t©o ?^i'.'- -'■ 
li^ecqim/t »^^ Bit XX»w aa iaoa^ltfui, 'foi'sii a ivftctv a«<¥if b^iva. ;^ -ot 

MV oX«f>&iioB aiij tt«ittr ,£S&X tt>X Xi/KiA iko attitffitaXq ©# ?sX»*^.axio fc«« 
t^nbaoK SB-twoXXol axlit Xx^m; aftAs toafri^id's: •A zf^Aisdw %& ,ftaXlt 

• liil^s; Xt««4 

flo •£«« aAir XV9X 9Ji3 ai»dw imdi b^i'Xlifi^i a^mtAO asiol 

$U9 MK b»i 1 3 Q%^ia «ii £>»«oX0 1^ii£iie ^j^tfji^ft srfi ilijfSX XllS?* 

i.*on it^^^idifttfi iab.i "ionoii ajv tJa«s fat*, 'meb aCaao 9jltf 1# 

hop sbeos suoJtiav ^ti&kl ^-fcb sdi no fjetistxi hbw »Xjia a "kT^i"X9ifii 

mm baa •akdoBu 5k«lolXa aco ,-r©faftlts *••« s (a«XiEio« «t^4 ^ixJr&irXoiU; 



-3- 

electric refrigerator and Tarious other tool* and aooaBsoriot 
incidsntul to the neat buBlneas. He further testified that the 
iee "box contained oertain fresh meats which had been plaoed there 
on Saturday» April 15th, the date of the lery; that the deputy- 
sheriff placed a custodian in charge who refused plaintiffs access 
to the ioe box except for inspection purposes and told hia that 
he could not sell or reaove the aeata contained therein* There 
were two keys to the premises » one of whidki was delivered to ths 
custodian in charge of the premises and the other apparently re- 
mained in the possession of the plaintiff John Chrenka* The sheriff 
instructed the custodian* in Chrenka*a presenee^ that plaintiffs 
might enter the premises and look after the meats in the ioe hoxy 
but that they were not to remove same* Chrenka testified that hm 
returned to the store on Monday* April 17th» and again on the follow- 
ing Wednesday* to look at the meats, which remained in the refrig- 
erator for ten days and eventually spoiled so that they could not be 
sold or used* He testified that the reasonable market value of the 
provisions contained in the ice box was approximately 4lS&» and to 
the average sales of his businec^s duving January, February and Marohy 
1953, which were estimated at approximately #350 a week during that 
period, on which he claimed a profit of 20^^ to 25^4* Upon these 
faets the Jury assessed his damages at |1,0(}0» and judgment was 
entered on the verdiot* 

It is conceded that the sheriff may levy upon personal 
property immediately upon demand, and is net required to wait 
until the expiration of ten days after the debtor is notified of 
the execution. ( Lenzi v. Zimmer, 210 111* App. 260.) It is 
urged, however, that plaintiff claimed his exemption and tendered 
real estate to the sheriff out of which the judgment might be satis- 
fied, but that notwithstanding these facte the sheriff remained in 



«l£^ Hf^i i«»llidoe^ ^sdiViil oK .oRsfiiax/d i®ci9 erf* otf X«}4(isai||||^ 
©TSiii bee-'slq; twad &Bri iloiri?^ B*«©Br ifeST^ r.tBir»o b»at.is£uop zoiT Wftl 

i&tii teiif bloi bus assoqiiiq aoi*©oq3fii «j^ tfqe^jea Kfitf ^1 aifi ©J 
M[y ©r i9t©TtX9i> BM'rr xfoirfwr l© »flo ^ B&& imsi'Xfi ^ii^ Ov e^fiai cw* 9ttm 

,xocf 30i: exlv' ni s^sem exia te&ts Tioel baa a^^ia^m, grili x&*ii» ;^daJ6;a 
«^ ^^rt;; t)3t'^i:t5at ^irfnairlC 4ap;0B ^YOiaef o:J ciun v>^9w x^^ ^'^^ ^9^ 

-"■•'■*•-■ ■ N-rJ- ,\;Ab««nb»W i«i 

• . ');' Vl:c' -.;;?,-, '-y., su- v-.v tui - -i^-wj il»rf ' "'' "-*i'»'f© 

3X1; lo 80X':v 35-:iv..u jj.a.ai:OC r;: r ';.<■;,.- jBf£^ Ii^ili";??^!;. S sM 4'-:: iO ^Xos 

oi bfiB ,a8X^ ifXa^BtalJ^oiqqis qs» x&cT ^ol edcf ni fesaijiiJuo o anoialvotq 

•asffit ne^ •'tSf^ oj ViS 1:o *i^o-x<i « h»HiaXs sii lieiilw no ,feoi"ieq 

tlsv 0^ £>dtJbvp6i: ^OCK al bite « l>flAK»l> ccoqtf \;Xa;^£)tbdai»i %it9^m^ 

to hi> titiiots. r.x lOi^tfoh qjH .xnh net 10 nei;^A>siq3!.9 ȣi lliXUf 

8l i.: {•OdS .q^. .XXI OX1S «,X'i»flMgi.'ii >T i^fm^ ) *rwlisj9oxM suit 

-aiiffia •4F .^iliis ^ncwaafewt tali xl^lriw lo JWo "..liife^a e-rfd o.. o:t.»;t.:r» Xatt 



-4- 

poABABsion for some ten (?ayg s,f tor the claim xor exemption waa 
Eiadc. It appeare froiE the record, hoverer, i.h&t Ciixenka* s olaln 
for exeoiption was not loade until April iath» and tliat h* receirsd 
the goods and ohcttels back on April 24th.. The real oontrorersy 
Ijetween the parties is whether or not the sheriff wrongfully 
retained the goodr fdr an unrsasonaljle period of time after 
Ohrenka made his claim for oxemptionf and this question was eub- 
mitted to the jury b» one of th<3 oentroverted istsuee of fact* 

iUu>ng th<% grounds for reTersetl it ie urged that the 
court* s instruotiona vrere erroneous aM that the yerdiet and judg- 
ment are exeeeEire* 'i?ith refersnee to the first contention* we 
find that the court, in the third instruction, charged the ivaj 
as follows I 

"If you find from the ©Tidenee in this ease that the 
sheriff of Cook County wrongfully leried upon the plaintiffs' 
property, and that isaid property was exempt from execution, 
then and in such case the defendant is liable to the plaintiffs 
f or auoh, jdajna^es j; as are shewn hy the eyldenee, if any, to hare h»en 
s uatained 1»y the plaintiffs*" ~' 

This ia&struotion seems to he predicated upon the theery that the 
levy <.ms unlawful, and the jury were told in effect that if the 
property leried upon iwas exempt f rom e xecut ioa that the lery was 
v.rop.gfully made. This seems to hare heen the theory upon which 
plaintiffs tried their ease, as shown hy the first point urged 
hy defendant in his hrief . It is there argued that the sheriff 
may lery upon personal property inmiediateXy upon demand, auid that 
he is not required to wait until the expiration of tea days after 
the dehtor is notified of the execution, and cases are cited to 
support this position. ( Lena! ▼. '.immer , supra , and :^e8kalniei 
T. Hasteraan, 288 111* 199.) Plaintiffs now concede this rule 
•f lav to he oorreet, hut evidently on the hearing their counsel 
took enother ri&a and m&de the eoatention that the sheriff eould 
not lery without first waiting tmtil the tea days had expired 
wlthia which the dehtoza might file their schediae for •xemptienst. 



^•T<»cft'x «fi -i-i^t i>Jiui fSCibX IxaqA li-^^iiu €>b£{i( ^^ji %«fr nQj;;^c£n^8x» -x«l 
tiI«^«oas liiioitfa ^ii«; ooxi "io ciSirr- 'loi^xaq $4* ii»eiir;l»<EJ 

e^.iJ*nJtfc- . il si ;Jr 

a. *ostt9 ni bins : cxrt »ri* br: 

b»a'r^ taiocL ^ati'l ail* x^ n«cr < i •jxI;^ E^ItI altlinl^Xq 

"iliTsiIa eifJ ierf* b9«r»ijc st^rC:^ .leirtf aid el *xj»bn«l©& "^tf 

•Xwt •W* dbeoKfto won altiitixlnia; f.^sfj , ss «asflL12*mS •^ 

J ii iw Wi Tl^Mt ;|nJ:T««d[ s»rf«r no xXdr..- '•^o'^ -'*' --• ' »'-•/ ^^^ 



At any rate, the Instruction Is mlisleadinf? and iaproperly states 
the rule of l£s.w applicable and erldently permitted the jury to 
find that the levy, which is shown by the evidence to hare been 
lawfully made and now conceded by plaintiffs to hare been »o, 
to be unlawful* 

Inaemueh as the cause Kill hare to be retried* ^e deea 
it unnecessary to indulge in any detailed discussion relative to 
the question of daaiRges, W« are satisfied* however* that the ver- 
dict was excessive. According to plaintiffs* own admissions* 
the meats claimed to have been spoiled* as ahoim by the inventory 
compiled by the deputy sheriff in the presence of John Chrenka, 
and admitted by the latter to be correct * the total meats on hand; 
including sausage* bacon and lard* was 147^ pounds* which at the 
average value of twenty cents a pound* testified to by Chrenka, 
made a total damage of t29.50, or placing the weight of the m«ats 
at 155 pounds, as stated by plaintiff Chrenka, the total value 
of the meats spoiled at an average vauLue of twenty eents a pound, 
amounted to #31. It is admitted by plaintiffs that all the items 
of personal property levied upon were returned to then, and it la 
difficult, to justify the verdict of the jury and judgment of the 
court in the amount of $1*000* 

7ho only other major point advanced by defendant to reverso 
the judgment is that the following remarks made in the closing argu- 
ment of plaintiffs* counsel were improper and prejudicial: 

"Mr. Kabaker: And this plaintiff (meaning Ricar) guaranteed 
to the ?:heriff* »If you* the Sheriff ^ are held liable for any 
damage by reason of the levy you made * * *, we, the plaintiff b> 
will indemnify you, the r.heriff* against loss*' Let him indemnify 
the iJhariff against loss. He has indemnity up v;ith the Sheriff 
against anj such thin^ as this* 

Mr. Ifeson (defense counsel); I object to that* 

The Court J Overruled* 

Kr. Kabaker (continuing): Here is an agreement to indemnify 
the ^:herlff . Now let thsr. indemnify the Sheriff. I say the Sheriff 
took a chance on this levy; upon damaging this man. Sut he said* 
♦ fhat difference does it make to ma? I have the guaranty of tha 
plaintiff, so all I do if I get stuck, the plaintiff will take oara 
Of ma. * * *• Whatever you find against the Sheriff the plaintiff 






«i 9rti*l9i iS3iaaji3Bib J!>i-i.ii;i^r; -ens ui ^^^xa.': ' 

t luiBCf no ziasm Jjb*- t Jj'oe'inot) st' sr:j %€ hBiilmba ba» 

Bi'i cA Avldvi ,3Jbitwoq iXP^l asm «Lt»I bps noaircf ,9§3ax/aa sfii ^i^Xea^ 

tbav^fi « s;^/i«»..' "'^Xieija atfr.aa ail* t« 

•axs-rrt o* i7 ; \€ boofLCTfea Jnloq tot^Ei i^Aic yX«^ •rf' 

-if^r;T ?!iTJeoIo 9At al -.v.r ?-' -.i-.m^ .rx,..tij;:f; >rf.' ;t/5firf al *n©fil»fexrt erf* 



If 9 i lift 



di Gi 






-6- 

(in execution) will iiavc to g&y bsclc to the Sheriff. ;:o you 
needn't worry that you are hooking the Sheriff that obtained 
posaeasion. It isn't the concern of the .:heriff, out of the 
man who Bade the levy in the flret inetanoe. 

Mr* icRBont I object to that CiTguiaent* 

The Court: Orerruled." 

Plalntiffe* counsel seeks to justify this line ef arguaent because of 

the indemnity contained la exhibit 7-Cf which con8ist<3d of a 

letter to the sheriff requesting the appointment of one Batista 

as custodian of the property in question. This exhibit was 

admitted in eyidenoe by agreanent of counsel. Hotwithatanding 

the admission of the exhibit by agreement » we regard that line 

of arguaent improper and misleading to the jury. It presented 

to them an issue ^»hich was irrelevant and immaterial to a proper 

deoision of the cause. As was eald ia the case of City of Chicago 

'■• -^rlglit & Lawther Oil & Le ad Co.« 14 111. App« 119, at p, 125 1 

"Whether the city wb,b Indemnified or not was wholly 
Immaterial, either ao to the plaintiff's cautje of action or to 
the amount of damages to which It was entitled. To argue to 
the jury that the city was indecmified by the railroad oompany, 
so that whaterer daaoagag they should award would not come out 
of the taxpayers, but would hare to be paid by the railroad 
company^ * * * ^ae an improper consideration. Its Inerltable 
tendency was to make them (to say the least) less olroumspeot 
ia OBtim^ting the actual loss occasioned by the Injury coaiplalned 
of, * * * the jury could not forget when considering of their 
Terdict that it was the railroad company and not the city that 
■was to j>ay the dajtiMgesj and it is a reasonable inference that 
this consideration had its influence in their deliberations*'* 

I'or the reasons indicated, the judgment of the circuit 

court should be reversed and the catise remanded for a now trial, 

and it Is so ordered. 

R3ITERSED MTD BiCllAMieiD. 

Soanlan, P. J., and oulllTan, J., concur* 



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33469 



HOBART BR0TH3RS COMPAIiy, 
a corporation^ 

Defendant in irrort 



T. 



tOUIS G. TATTBR, JOHU DOS and 

MAtiY DiM, 

Plaintiffs in Error. 





ERROR TO iiUiriCIPAl 

COURT or cmc-^GO* 

8 5li. 5 94^ 



VR, jusTicii: zkijUhd D.aLXV2;B:na) the opimoH of tks court. 



Plaintiff "brought an action of replevin against Louie 
9» Tatter* John Doe and Mary Roe to recoTer possession of eertain 
personal property claimed to have been wrongfully taken and 
detained by defendants. The cause was tried by the eourt and 
a jury, resulting in a directed verdict and judgment for plain** 
tiff at the close of all the evidence. 

The affidavit for replevin alleged that plaintiff was 
the owner and lavvfully entitled to the possession of one 300 
ampere portable Arc Welder, with motor and aeceseoriesy valued 
at |499*61i that defendants wrongfully took and 'tetained same 
from plaintiff, and that the chattels were not taken for any 
tax, assessment or fine levied by virtue of any law of this 
State against plaintiff's property, nor seized under any execution 
or attachment against plaintiff's goods. 

Louis a. Tatter's affidavit of defense denied that ho 
unlawfully and wrongfully took possession and detained the welder 
described in the affidavit of replevin, and averred that ho had 
purchased this machinery and paid for it and that in addition 

thereto plaintiff owed him ♦468»10, whioh was claimed as his 



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bn^ flsiuJ v,XIij48j«0*- >'■•'"'* oi &®fitJfcjaXo ■^;tii&^OT:q Xafioarreq 

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MUM J)fcuXiJsfi- lifxj:: :-' a;'x^KC!£V; i;crriaai • ' •' • 

XJxr. lo'i 05*31 .wi ;}on , UniaXq xa.oi't 

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set-off* It was further arerred that no demand was arer i&ade for 
the chattels sought to be replevied i and that plaintiff was not 
entitled to file suit in this State because it had not qualified 
as a foreign corporation to do buslneBS or eell property in 
Illinois* 

It appears fro» the evidence that plaintiff y an Ohio oor- 
poration» aold the mohinery in question to Tatter under a condi» 
tional sales contract for the stipulated sura of $lf070« Tattor 
paid |160 cash and agreed to pay the balance in monthly install** 
Bonta of $70» ^ith 6^ interest* The last installment payment was 
made in 17ov3mbsr» 1931* 'hen the affidavit for replevin was filed 
in May> 1953 » Tatter was clearly in default » and under the terms of 
the conditional sales contract plaintiff was entitled to possessioB 
of the property* 

After plaintiff had filed its replevin bond a deputy bailiff 
of the municipal court seized the property and delivered it to 
plaintiff » who took possession thereof* Prior thereto plaintiff 
had contracted with the Morrison Railway Supply Corporatloni ChioagOf 
to rent them an electric arc welder and had delivered such welder to 
be used on a viaduct on which the Morrison concern was doing somo 
eonstruetlon work in Chicago* The rented welder did not operate 
properly, and plaintiff thereupon temporarily substituted the 
replevied welder until the rented machinery could be replaced or 
repaired. Tatter, learning that the replevied welder was being 
used by the Morrison company, sei^ied the same and in connection with 
the instant proceeding a petition was filed in the municipal court 
for contempt proceedings against him by reason of this seizure* 

The principal defense interposed by defendants, as appears 
from their own brief y is as follows i 

"Defendants' theory is that plaintiff, a foreign cor- 
poration doing business in Illinois, cannot maintain this aetiom 



ioti BHV All-'«i£lq iadi bos <:&eiT»Iqf*r etf oJ orisjuoa Bl©i..sxio »fl;r 

ft«iilX.?j!jii ^ton b.off Ji sewsoocf a;^jBifa aJtii^ vii Hub qUI oi beliiin^ 

as ^Jtsaoicr Use ro aaensBud oh od itox;tr,:coqtoa ttgieiol: '.^ a« 

-100 oirfC ns ,lli:JnXi>Iq ^fjxf- sof"^^-'-- '^f^ -^rf^ sso-Xa ._..... 

,-„.)*„o ^rstf-.^r:- "rr- r.i,,r^^ h&istisq i:^-^ ■■■'■•^'' ■""■'■■ .-t'tn-r.-f rt<T-- •";•{;"'■! [''jnoiit 

.vjiogoiq ©dJ to 

0* Tftfcl»w xfowa ooigri.. jIgv/ oii3 oi-xJ'osIe ns;. cisriJ insi o* 

csoe gcio^ a»v/ riTeonoo rtoexi3:oM sflit A'bx.ii'^ no 5oit?: bsaxj ©«f 

•iaa^qo i'on f-ib i&bXevr bditnat oriT -o-;^f70ii'i nx i ,''0U7;t8H00 

t»j(£i £)«*if;}x.*adue \,Xi'r£T:oqiK'^ KOq«©T©ili 'i'^iv^ttf.'rlrr bri9. ^x^iftqptfi 

•to beo^iXqet etf fcXwoo Tciftfihrcrv.r ii-jn '" r.H:>i ■isivelqe't 

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-3- 

wlthout complying with the foregoing statute; that plaintiff is 
bound "by the admiBsione contained in its pleadings and cannot 
deny that it ie a foreign corporation, and that it is doing 
husinees in this state, and that it has failed to sho-w complianct 
with said statute.** 

It is conceded that plaintiff is a foreign corporation and that th9 
authorities construing sec. 94, chap. 32, Oahill's 1931 Illinola 
Rarlsed Statute, in effect at the time this suit was instituted, 
hold that no foreign corporation doing husineas in this otata ^vithout 
a license shall he permitted to maintain any suit at law or in equity 
In any of the courts of this State arising out of either contract or 
tort. To support their contention that plaintiff was "doing busi- 
ness** in this Gtate, defendants rely on plaint iff *8 petition alleging 
that it is an Ohio corporation, together v/ith two affidavits filed 
In support thereof, "e have examined the petition and affidarits, 
and find nothing therein to justify defendants* position. While It 
is true that plaintiff instituted and was prosecuting a replevin 
suit in this State, it has been held that the words "doing business,** 
and "transacting business," as used in the statute regulating foreign 
eorporations "have by numerous judicial decisions been glvea a settled 
and recognized meaning, and refer only to the transaction of the 
ordinary business in which the corporation is engaged, and do not in- 
clude acta not constituting any part of its ordinary business, suoh 
a s institutin g and prosecuting actions in courts.** ( Alpena Ce ment Oo» 
▼ • Jenkins & Reynold sy 244 111. 3S4, viherein are cited numerous other 
cases, including Spry Lumber Oo . v. Chappell, 184 111. 539 | Handel v. 
Swan Land Co., 154 111, 177} ffaxon Co» v. Lovet t Co.y 60 »• J. L* 12a| 
13 Att. & JSng. Ency. of Law (2nd ed«} 869«} 

It has also been held that a foreign corporation may solicit 
business through agents in this Stats, where the contracts are con- 
summated in the home state of the foreign corporation; that it may 
maintain an office for that purpose, and that such transactions 



,b»^0ii?eni- a«w Jii/e ai:ii« &m.li i.. . ^o©t5:® ui i©*«da4^g bsalrsfi 

frf-iiri;* ui :jo r; ;it~ ftJt.~;?nJr- .';t.ha^sQ; sc' ..Claris epn^olL & 

'.'■''' .- "- (aoi^aToq-cor.. ' .: taii:^ 

",8^- .fciow 9H* *aii^ feXeM £ie»tf aeil di «0*«*3 ai'ff;^ ni Has 

9lii . Tlxi need enoiaioeb Xsirolbw^ BBoisuBjun T£d ®va«['' ««;oi;^sToq'3E©o 

•^A ' " . fc«i l^^ p , ^ .. fti. jy^o r^. f?.^. ?.ffi:^iioasQXg bag agi'^ uJ-taggx ag 

♦T _^_ . .X ^X^ fc-^ ■ « .j ... Ki. ij;rt!^fc aclfeJjXog(i « seaso 

ill •u. . . ._ . vSYoJ ••* j^oj,JjRr___, : .'TX .III /-eX j^.Q^^ bixfci>l ffl fflP 



will not const ltut» "doing buslneee* ■within this State. It was 
said In Lehigh P o rtland Cement c;o « v. McLea n, 245 111. 326, at 
p. 3331 

"It would he aanifestly lllogioal to hold that a foToign 

oorporation engaged In interstate commerce was exempt from all 

those provisions of the act imposing conditions upon the right 

to do husiness in the Jtate, yet auoh corporation mitiht nerer- 

thBless he penalized by denying it aooess to our state courts. 

A penalty ought not to be irapooed upon foreign corporations for 

a failure to comply with a statute that has no application to then*" 

In American Art v<ork8 v. Chicago Picture Co», 184 111* App. 
502 (affirmed 264 111. 610), plaintiff's principal office was locate* 
in Ohio, where it manufactured sill its goods. It had an office for 
the use of its salesmen in Chicago, hut the only business ever done 
in Illinois was the solicitation of orders by its agents. The orders 
obtained wera forwarded to its home office for acceptance or rejec- 
tion. The collection of accounts was made in Ohio. The particular 
transaction involred in that proceeding related to contracts solicited 
by Chicago salesmen and transmitted to plaintiff's home office, and 
there accepted. In discussing the question under consideration the 
court said! (p. 503, 504) 

"Prom a consideration of these facts we hare concluded 
that plaintiff was not doing businesB within the purview of the 
statute above referred to, and hence the statute has no application. 
The foregoing facts bring the case within the reasoning and con- 
clusion of the Supreme Court in Leh igh Port Isuid Cemen t J o. v. 
McLean , 245 111. 326, in which opinion the rule under consideration 
is discusaed at length, with copious quotations from many other 
oases* In that case it was held that corporations engaged in 
Interstate commerce are not amenable to the proviaions of the act 
above referred to, and hence by the vary language of the act 
itself are excluded I'rora its opera,«ion.'' 

In Youn^ v. Meyer-Hud olph Shoe Co., 261 111. App, 327, under 
facts similar to the case of -onerican Art \»'orks v. Chicago Picture 
Co., supra, it ^aa held that a foreign oorporation has a right to 
transact Interstate coiiomerce and to obtain business through agents 
in this Litate where the contracts are finally consummated in the 
home state of the corporation* 

On the conditional sales contract executed by defendant Tatter, 
Upon whioh plaintiff's claia of title to the chattels replevied Is 



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leirtool -isr. laqiOKXTq ' 

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based , appears the notationt "accepted at Troy» Cliio» on October 
27, 1931. Ho"bert Brothers Company, "by i). G. Jenkins, Credit Mgr." 
No svldenoe wac Introduced to overcome this proof, and it will 
therefore "be presumed that the contract did noc Tjacoiae effectir* 
until it was accepted 'by plaintiff et Troy, Ohio. Moreover, the 
contract, -which is dated October 24th, is addressed to plaintiff 
at ?roy, Ohio, and requests it to ship to defendant by freigj&t 
the arc welder involved. The a coaptanoe by plaintiff of the con- 
tract did not take place until three days later. ?roa these faoto 
it would appear that T«hile the contract -vras solicited in the Stato 
of Illinois, it was consununatsd in Ohio and was treated by the 
parties as a transaction in interstate oommeroe. These circum- 
stances, together with the feet that the seller resided in Ohio» 
the chattel was shipped from Ohio, and as heretofore stated the 
contract vfas accepted in Ohio, ^ould aeom clevrly to stamp the 
transaction aB one vlthin the purview of the authorities hereto- 
fore cited* We therefore conclude that the defense interposedp 
namely, that plaintiff was an unlicensed foreign corporation "doing 
businesa" in the '^tate of Illinois j v/as not emtalned by the evi- 
dence, and that plaintiff had the legal right to maintain its 
replevin action in the courts of this State, 

It is urged that the court erred in excluding evidence of 
acts relied on by defendants to support the defense that plaintiff 
is an unlicensed foreign corporation doing business in this State. 
This evidence related to a single Isolated transaction, and in- 
volved the leasing of a welder to the Morrison company during the 
pendency of this action. We think the court properly excluded the 
evidence, not only because an isolated transaction is not sufficient 
to constitute "doing business" within the statute ( Alpena C ement Co* 
V. Jenkins & Reynolds, supra) , but also because the transaction 
sought to be shown occurred after the comaencement of this proceeding. 



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Lastly, It le urged tliat the court refused dsf^ndants 
the opportunity to prove their »9t>eff, which was Isaaad on 
rental of spac 'by plaintiff in riefendants' building, 8tenographer» 
telephone and storage charges, and various other ItouiP), aggregating 
•t'B88.40. The court excluded this evidence on the th'jory that a 
plea of aet-off is not projjer In an ruction of replevin, and we 
think properly so. Replevin is a possessory action, e.nd the only 
is&ue involved is the right to the possession ol the chf:,ttel in 
question* Therefore, the 'dmiefjlon of such evidence \vould hare 
"been erroneous* ( General Mo tors .'.ceejptancg Cor^» v. VRupJhp i358 
111. 541, 548; Cheoker Taxii Go. v. Turkington, 273 111. App, 112| 
Fair banks t. Malloyj^ 16 111. '.pp. 277 j 54 Corpus Juris, 418.) 

Since there was no competent evidence offered on behalf of 
defendants to sustain their defense to the action of replevin, we 
are of the opinion that the court properly directed a verdict in 
plaintiff's favor at the close of all the ^evidence. During the 
pendency of this cause plaintiff moved to strike the hill of ex- 
ceptions from the record, and to dismiss the TJrit of error. This 
motion wa3 reserved to the hearing, and will now "be denied. 

Tinding no convincing reasons for reversal, the judgment 
of the launloipal court is affirmed. 

2cej3lan» ?• J., and Sullivan, J., concur* 



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38534 



PHILIP A. ISAJJQWSOS, 

Appellant* 



J. S. BACHB, !• WIS3, H, KA.mr, 
P. J, KDHPHT, A. F, B0I3SBICK, 
!• =i* BACHS, HAROLD S. BACHB, 
W, F. STSBiff, F. L. RIGHARBS and 
J0S3PH P. (HsIFFIIsr, partners as 
J* S* Bache & Oo*} 

Appellees* 





APPEiOi FROK SUPERIOR 
COURT, cook: COUITTY. 

285 I.A. 594 



^ 



t. J^TICB JRISHD EBLIVBEBD THS OPIHIOH OP THE COURT. 



Plaintiff brought an action in torty claiming daBaages 
for fraudvijlent mlsrepresentatione inducing the sale of bonds "bj 
defendants as partners of J» S* Bache & Coiapany* Judgment was 
entered for defendants pursuant to a directed verdict » and 
plaintiff appeals* 

The declaration alleged that in September! 1925, plain- 
tiff was Indttoed to purchase $20,000 worth of bonds issued bj th* 
Orohard Coal Co*, upon the representation that the Orchard Coal 
Co* and its subsidiaries) Soranton Coal Tfining Co« and Lake A 
Sxpert Coal Sales Corporation of Illinois, had at that time fixed 
properties amounting to $19458 9 628 •34 » current assets of ^489,038*28 
and current liabilities amounting to $442,957 .Qli that Orchard 
Coal Co* owned a mine having a daily output of 1500 tons of coaly 
and controlled the Soranton Coal Mining Companyy which had mining 
property with a daily capacity of 2500 tons of ooal| that Lake * 
Sxpert Coal Sales Corporation had at all times $200,000 quick assets 
and normal esu-nings of $50,000 to $100,000 per annum; that the total 
earnings before interest of the Orchard Coal Co* from its operations 



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XaoO MailoTO 0ff^ ;>j3xfrf co±;fj»da»«9i{f»« &jii ^oqi/ t.oO IsoO fttsifoaO 

d eaL>J bits »o? sninM X*joO aoinn'ce':. ,8t»jt*.cai{)i:o€f«a eiJt bnA veO 

taAifoTd tfaiC^ |I8.V<J^,S*^^ oi siil^/moiaa aeiiiUdAil iMriuo bam 

<ia»9 to %t»i OOflX to Jtfq^iWG i^Il/^b a sflivarf ©nim e bonwo .oO £a«8 

IMtJtiila b«c{ xtolilw ibXM«>wO »Bin2M XaoO noitstsitD: ojf.i b«XIoT#noo bm 

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a^988£ loitfp OOetOCttf c«Hi;r IXa id ixpii ixottf^tOQ-suv. ...a... i..oO ixo^pdE 

lAtod srii iA/!i imutitiM f% 90U|OOI| o;t 000(064 to ui^tn'Sjf I««n«£ bxui 



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aBd aooruing by reason of Ita ownership of 100^ of the stook of 
the LaJCe & Export CoaX Sales Corporatloa* and 49 »9^ of the stook 
of the Soranton Coal Mining Company, for the fisoca years ending 
Haroh 31 t 1923 » and March 31 » 1934, were $162 •124*94 • 

It was alleged tbat In pursuance of the foregoing repre- 
sentations plaintiff purchased from defendants bonds of the Orchard 
Coal Co«» as follows i September 17, 192S - bonds to the amount of 
|10,000| September 22, 1925 «• bonds to the amount of |3»000| and ea 
Sept-imber 29, 1925 - bonds to the amount of ^TyOOO, for which he paid 
the aggregate amount of ^2C»016«17| that the representations v/ere 
false in that the Orchard Coal Co*, and its subsidiaries had fixed 
properties Talued at $300,000, instead of ^1,4S&9628»54, current 
assets to the amount of flOOsOOO, instead of ^4S9f 038*28, and current 
liabilities to the extent of $700,000 instead of ?>442»957.91j that 
the Orchard Coal Co* evened a mine haring a daily output of, to^wity 
no tons of eeal^ instead of 1,50C tone; that it had property with a 
daily capacity of, to^^it, no tons, instes^ of 2,500 tons of coal; 
and Lake ft Export Coal Sales Corporation had at all times assets ef, 
to-witj no dollars, instead of )200,000, and normal earnings of, 
tO'iivit, no dollars, instead of #50,000 to 1100,000 per annum; that 
the total earnings before interest ox the Orchard Coal Co* from its 
operations, and accruing by reason of its ownership of 100^ of the 
stook of the Lake & export Coal Sales Corporation, and 49*9^ of the 
stock of the 3crantoB Coal Mining Co* for the fiscal years ending 
l&arch 31, 1923, and March 31, 1924, were, to-wit, no dollars, insteeA 
of I 162 .124 •94* It is arerred that when defendants made these 
representations they knew them to be false and made them <vith the 
intention of having plaintiff rely thereon in making said purchases, 
and that plaintiff did net know that the representations wore false 
and relied thereon* 

Defendants' answer admits the purchase of the bonds; denies 



:l9oSa »Hi lo )(9«9J^ bn£ tJioxo^ xOqioO s&JU'c X«oO ^x««icS ^ 9:i84Z 9dd 

• *-e«*aX.gdJ[ r . « ex tic xf««sM lais ,£Sex ,Xg ifo^«M 
-dTosi gfiloi^e'xo'i siii ^0 »ons0aauq at i»ti.* 5033X1*5 a«w *I 
bradorO edt \o abnotf BJ'nsb^9l'^^ mott bas^rioTWi fj^ijtoifslq anoi;^A^fi&a 
to imrorat* »rii orf abnotf - 5S :. ^ . t:odiS9;Jqf0S iswJtXXc-c a« ».oO XsoO 

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V dixv xirQq(ytq b^ri ^: hi^^mi |Xj8O0 !o aaocr on 

.to a^foea-s eamiJ XXs ^r i>.Mil coifi'aToq[T:oO laXa-y X«oO .I'xoqxfT A »atoJ ftii« 
,lo rsntr.".. -.;.• X«?iio« brts ,C0C,OCS* lo &.s>».f--f?x ,3T#Xi:<M> ok ^*1w«oJ 

fljCi to ifOOX to qritfanoawc ,ci-o.U'i- ...^ao 

BlEitao exasx Xaoai^ ex£3 toI •oO gialxii;!: X«Oi/ no*««toC ©tl* lo ioo** 
biM-#«irl ,«f«XXof • < , ■ rew t^SeX tic cfoisa bojs ,€S&X ,X€ dstusif^^j^ 

■t# ilijhr «>iiw •t,aai bnj2 euXn'i gtf od K»xf* Hr»ml x»fi^ 8itol;fi8io©asnc(i€)'x 

ooXet •«•» c«oi*«^no8fj^qoic &d^ t&di wotot *on bib tli^iKUI^ #Bii# bflUB 

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-3- 



that th«3r made any false rspresentntioaa to plaintiff with the in- 
tention of harlBg hia rely thereon in making said purchases, or that 
they knew the represeatatlona alleged hy plaintiff to hare heen f fa»e 
*r Bade with the intention of having plaintiff rely thereon, or that 
plaintiff did rely Ui»on any of the repreeentationB charged, defend- 
ants further deny that the hond@ of the Orchard Coal Oo« Tfere north- 
less at the tine of thfi purchase and that plaintiff was d'aaaged* 

The facte disclose that these bonds were sold to plaintiff 
"by Itr* Allen of the hond iepartaent of J, s. Baehe it Co# There is 
no oontentloB that Allen had any personal knowledge of the affairs 
of the Orchard Coal Co., and it is oonoeded that whaterer representations 
he made are contained in a printed ciroiaar introcuoed in evidenoe as 
Sxhiblt 1, which consisted of a letter signed hy B. y. Sent, preeident 
of the Orchard Goal Co., setting forth in separate paragraphs facts 
relating to the hiasiness and properties of the company and the sectirity 
of the mortgage bonds. It was represented in the letter that the 
OMKpany had assets of #l»458f000, and current liabilities of $489,000i 
that its earnings were 2-1/3 times more than the interest nhp.rges on 
the bonds) that it had clear title to coal righto in fee to a total of 
2167.22 acres, in addition to 36,24 acres of surface lands suiteble for 
shaft and mine building, with a potential daily output of 1,500 tons 
and a capacity for development of 3,500 tons; that the company also 
controlled tho Scranton Goal Mining Co., with a daily capacity of 
2,600 tonsi and the Lake & Sxport Coal Sales Corporation, which wps 
engaged in marketing the Scranton mines, as well as the output of 
several other large mines, and had at all times #200,000 quick asneti 
and normal earnings of $50,00 to ^100,000 per annum. Appended to tho 
president's letter was a consolidated balance sheet of the three 
companies and a statement that the legality of the bonds had been 
approved by Chapman, Cutler & Parker, attorneys in Chleago. On tho 



*^- 



f -■■ C'^sse/sritrxj^ Wan sB-^^t^oi "^ rroft-f ,r.t -\r*>-r nriK gaiYjsii 1:© noises* 












xtf 



i:«iiq»4ii&0 



lilt ant 



'"i *n3^i?T!T.'- 



rJ bofti^^iios »xs 9b«a sjK 

, ::.*:rO0I 9ll. iO 

It© J0iiiii» or <jr a*. (Osaltt co;?«,-='T©5: ©jS* i^Ki5»'Aima at &«MBi» 

t^s'ios iCottfp 0CO,;:,CiC;i ueatliJ Up ia ftisri oca to&ht^ oaiaX ieii#<i X«x9T8tt 

•*' o^ ^' Tt»<I 000,0011 di 00,bC$ to s»nl«iLo» Xj»«t«H J)«» 

•♦?ri3 »ifi xo ifreerifi »9nj«lB<^ ba#al>JtXoafti09 e atiW Tt«*^«X s '*fl»6i39t^ 



■^i:.-Ti^'^ '^'^ O.iliw 



-4- 

IsettOB of the front pag« of the clroular iippeared the followingt 

"All statements herein are official and are based on 
inforiBation whloh ^e regard as reliable » and vfhile vie do not 
guarantee theiB» ve ourselres hare relied upon them in the 
offering of this security." 

IB addition to the infonnatlon contained in the printed eirciaarp 

fluad in response to plaintiff* s inquiry Alien informed plaintiff 

that the output of the mines was sold to large industrial oonoernsy 

railroads and utility companies of recognized standing* 

It appears from the eyidenoe that sereral weeks after tho 

purchase of the honde Allen called plaintiff to the office of J* 3* 

Baoho At Oo«» and suggested that he exchange the Orchard Coal Co* 

eecurities for the new issue » bonds of the Standard Coal & Coke 

Co*» hecause the latter was a stronger and hotter concern* The 

exchange was made and plaintiff was paid the difference of 4i>l»OdO* 

Seme three weeks later plaintiff adTised Allen that he had heard 

that the honde of the Orchard Coal Co* and of the Standard Coal ft 

Coke Co* were worthless » that the mines were olosed down and no coal 

had heen mined for a long time* Ahout two weeks after plaintiff 

again called OB Allen and told him that he had been down to the 

Orchard Coal mines a»d had learned from Mr* Janes* the foreman in 

charge, that the company was involTed i» foreclosure proceedings and 

had not shipped any coal for eight months and owed the miners largo 

Bvaaa of money for wages. Plaintiff testified that Allen then adrisod 

him that Standard Coak & Coke Go» was putting out #300,000 in notes 

and that if It wae known "down the street •• they wore bankrupt, J* S. 

Baohe & Co. would not be able to sell the notes, and Allen suggested 

that If plaintiff ^ould "lie low for a week" he would reoeire hlo 

money haok| that after waiting a week plaintiff again complained to 

Allon, who told him to be pat4ont and wait another week; that ho 

thereafter complained to Mr. Curran, one of the officials of Bache 

& Co., telling him that he found out about the condition of the 



'i!Micl«Ig. lieatotai n^lla x^Jtu, xJaJtaX. noqBi*^ ci baa 

eoil^o »x{.t o* fiiJaisXtr &i5lX/?9 uaXXA afcnotf eil. ,.;xf.o'x»<j 



-t',.. 



Mi. - ■.-.^' ?>:{ fv 



.;{iii bXOv iXA i(43 l^»XXfi« fil«8J| 

*w XK^Q^oo out J .-.i-Iw ,i5Si^'3r£9 
•Bt»»X STOHiiri erf;f be7.-o hits Gi«;rnoB: irfi^x iaoo ^WJ b«qqli«« *©li Mil 

•e^on nl 000, OOC?. Juo a«±J«iiq nm-; , oO I. jijateO JSiiebastS tMi mti 

^iB«>iBtf« «»XXA bofi ,o«*o« Biii XX«a od cXdw ncf ion f.ijM»-^ •90 ^ «ifo^ 

•4 i^i \:k09v -nAfoD^ *Xaw tee tn&iki*ni ^^ o.> mI^ ^loa ©rf^ ^H»XXA 



Oroliard Ooal Co* and wemted his nonej "baoky and that Gurran proBBiad 
to let plaintiff hear from hiB^hut aerer did sof that afterward 
plaintiff coaplained to Mr* Oriffin» one of the defendants » telling 
hiB that he had learned of the Bisrepresentations sadey that the 
Bines were closed and the ooBipany bankrupt » vrhereupon Griffin llkewiaa 
proBised to let plaintiff hear frcm hiB» but failed to do aof that h* 
again Galled on ariffin* sOBe tiae later » and brought with hiB the 
printed circular containing the representations complained of and 
called his attention to the fact that the mines had been closed for 
eight Bonthe; that the company owed $95^000 on its notes and $335»000 
en current expenses and n«ir equipBent which had been installed in the 
Bines f and plaintiff states that Griffin admitted to hin that ha ka«« 
tha bonds ware worthless and that Allen had no right to sell thea; 
that when plaintiff told Sriff in he had depended on the inforaation 
contained in the eireular Griffin answered that if the Inforoation 
were true the bonds would be worth what plaintiff had paid for thes* 

It is first urged as grounds for rerersal that the court 
Bisconoeired the rule of law applioahle to actions based on fraudulent 
Bisrepresentatlons and in directing a verdict in faror of defendants » 
invoked the legal principle that "one v?ho qualifies his representation 
by language iBdieating that it la Bade merely on information and belief 
is not liable for its falsity?" whereas, the correct principle» as con- 
tended for by plaintiff, is "that one who qualifies Ms representation 
by language Indicatliig that it is msule merely on inforaation and belief f 
and who honestly belieree such representa tions to be true^ is not liablo 
for its falsity." 

Plaintiff* s case was predicated upon the allegation that cer- 
tain facts contained in the printed clrcixlar were false, and known by 
defendants to be false* The rule is well settled that an action for 
fraud and deceit must show six eleaents in order to afford relief: 
(1) The misrepresentation must be in fora a statement of fact| (2) 



•ii *8jrf* |oa •& oi boXJbot Jtrtf ,isxjrt moTt ^^erl l!ii;^cr.?*lc .* Ibeainenq 

ad^ utd riJi'vT iil^uc < is*«X sficl;^ eaoa ,Kii!ti.EO ixo fesXXao aIa^ 

t9\ besoXo neocif b;sd aaatm &di ^&ii- nviiP9it» BkA b9lJjB0 

•lid nl boXXe^arri: n-^/Scf S.?.ri rlr^M^- d-nsffrcriy • '^^ wen In: i,i^as9qxB ia&iiun ao 
waesf Bd iadz ; ,3*/5?3 I'^lictislQ tofl ,a©nlt9: 

no ' ^ 
\R9luhasit\ no bea^cf anoiJos o;? ?>XC'^<>iXq<3:« ^'^X to sXjin: eri* b«Tieoaot>8Jta 

iol^a^0»«ietq^ eiif ^^•ililfajp oniw an© i^f= . « tUt-lftlAXq Xii tol be»b«d^ 

► iX»tf Wt« aoii£ffiici.0£ AC y.r*t»«!!F i»I;(fi.'. j.^ti^ 5^BidBoi'ni ©S'^ixsoaX X<f 

laJX ioa tX ^*><r<tf ttf o? > i - 'uaf ^q^ex 4?J-''- ■^■■'▼*»xX'.:g( yXi i;»a^ 9^ has 

-T90 i«iii noi J.'i>isXXfl sdi floqu Jb«*«olb«nq a«ir »C' v . * ilidaiaX«i 



-6- 

It mast "be aade for the purpose of Influenolng the othar party 
to act} (3) It aust be untrue | (4} the party Buiklxtg tho statoment 
must know or belieTO it to be \uitrue; (6) the person to whoa it 
l8 Bade aust boliere and rely on the stateaent; and (6) the stato- 
Bent Buat be Material* ( Johnson v« Shoclcey» 335 111. 363 » 366 1 
KrankowBkl ▼. Knapp» 268 111. 183, 190.) Applying these principlae 
to the proof adduoed by plaintiff » w@ conclude that he failed to prore 
the charges Bade in his declaration. M&z^ of the rspreaentatioBS 
complained of y^ere mere matters of opinion and not representations of 
faet. It is first alleged that defendants represented that the 
Orohard Coal Co. had fixed properties amounting to $1,458^628*34, and 
eurrent assets anountiag to ^89 ,038 .28 • ?here is nothing in the 
record to show that these values were incorrect. And the same Is true 
•f the representation that the current liabilities of the Orchard Coal 
Co. amounted to #442,957.91. Another representation complained of ia 
that the company owned a mine hariag a daily output of 1,500 tons, 
hut no proof was made of the falsity of this representation. It ie 
also alleged that defendants represented the Orchard Coal Co. aa oon- 
trolling the Seranton Coal Mining Co., which had mining properties 
with a daily output of 2,500 tons, hut plaintiff offered no proof to 
show that the Orchard Coal Co» did not control the Sorantoa Company, 
or that the latter did not have mining property of the daily oapacity 
represented. With reference to the Lake & liixport Coal Sales Cor- 
poration, it is urged that defendants represented that it had $200,000 
quiek assets. Defendants contend that this was a mere matter of 
opinion, but regardless of that question no proof was offered to the 
contrary. It is also alleged that defendants represented the Lake & 
Export Coal Sales Corporatiom to h&re normal earnings of C'50,000 to 
llOOvOOO per annum, but proof is lacking to show the falsity of that 
statement. Finally, it is alleged that defendants represented the 
total earnings of the Orchard Coal Co. for the two fiscal years ending 



dl cm<w o# aoai'iq ?tdi (a) {sy-c^uu ©«t d* *i sTftiI>6 10 voaaf ieiUB 

-t^M^B «di (d) li«6 iStiVBEtiBiif 9A4 no Y^!^:s r>ftA dvat^Xd^r 49Mbi »JusiB ax 

|c>»fi tSdC .Xil «€£ «Te>:<CK?iet.w: .v ii»»R4iQl .J .X«it94^sB *<f *ai«t ^fMMi 

u^lKtoninci ma^sLa s«i'4i:<!q-"^ (.OCX ,«SX ♦XXI SaS ^gq>8a> -"^ ^^"TftSllflilBrf 

8»i4'xe'T«rr' rifjrpfir hrii jfoiriv , > liiciM X«oO AOi^iwx^^ aii* ijialLl9ii 

000,008^ bai< $i $jui^ h^^t U. „. "1*81*1 

* »ai**i Sit- ^>6«i-o > Hi-^i £;iai)fuiQV'fj #4ail? ixsgeXXe os ; .'.tAtcfn^o 

SiLflbce aTU»x i«acn o«r* e«(j zol ,60 Xc»o ftwlMc© ^«[# '^© tanlartjio Lite* 



•7- 

In ^%roh, 1924, as •f"162,124 .94, but no proof was offered to re^ut 
the truth of the statement. 

Plaintiff testified that after reading the circular contain- 
ing the representations complained of, he purchased the bonds, and 
it is conceded that In October of the ss-ae year he exchanged these 
securities for 4;lt082 in cash and $20,000 par value of bonds iBnued 
by the Standard Coal & Coke Co., irhich through some prece^B ot re- 
organization had acquired the properties of the Orchard Coal Co. 
It appears from the evidenee that about nine Months after plaintiff's 
purchase a receirer was appointed for the Standard Coal k Coke Co. 
In the inttrvening period, plaintiff brought suit on March 26, 1926, 
against defendants, seeking to set aside his purchase under the Blu« 
Sky Iiair. Hia declaration, introduced In evidence, contains no 
suggestion of the fraudulent representations of which he now ooa- 
plains. kjo. amended declaration we-s filed in September, 1926, a 
second amended declaration in July, 1937, and a third amended 
deolaration in January, 1928, all of which appear in the record. 
Hone of these pleadings contains any suggestion of the fraudulent 
representations charged, but sxe predicated solely upon the proTlsions 
of the Blue Sky Law. .^hen the ease was called for trial plaintiff 
aeked to withdraw a juror, and thereafter, in April, 1929, »ore than 
three years after suit was first instituted, filed a fourth declaration, 
for the first tiae alleging fraud. During this Idng period of tima 
plaintiff filed various other suits, one against Crone, president of 
the Standard Goal ft Ctflce (C«», alleging that the latter was instruaental 
in causing the Standard Goal & Coke Co. to exchange 1:8 bonds for those 
of the Orchard Coal Co.> and that the exchange was in violation of 
the Blue Sky Law and that plaintiff was damaged to the extent of 
^20,000. That suit evidently proceeded upon the theory that the 
Orchard Coal Co. bonds, which are here alleged to be worthless, 
had a value ef #20,000. Another suit, ba-sed upon the saae tiieory. 



• «lcti.tni«JJi xattr, rui^p.oa tain ^fwotfa imdi &«n:»i>lv» ©4^ ikoi^ sxf;t 

rfneXwbittiil saii io rfoi';^e?©:::^iiy ^c"-;i onisicao' ?:q|itil)j8«X<r *»«*W 1© dAO% 

diAial9»b AJ'tuoli a baXx'i ^b»iuitii^ai iaxi . Jya s«11iJ ^.jt/iB^s o«»afi4. 

lismmutisaJL asm ta^^^fiX ecii isAi i^ai^elL; %m9/^ aolaA A imoO ftim^aQ^^ VJi'i 

lie foki^loir ni saw a^cuutioxe «i{tf insiS bins i«oO JbMQ li%^oi[£) ■ .> 

to tisatX9 Bri;r o* fe«B-'«««b aaw 13id4ii«Xq 4«£l* f)iiF. vrsJ t:^'- saXS «k|l* 



•8- 

«»« Instituted against one Buoloaani likewise predicated on rio- 
lation of the Bl|a« Sky Lav* Another proceeding* similar in character » 
was instituted against Carlton <& Koeppey and still anoth«$r suit v&e 
broucht against the defendants in this proceeding, alleging that they 
had exchanged Standard bonds for hie Orchard Coal Co. bonds, in Tio- 
latlon of the Blue Sky Law, and that he had been damaged in the sua 
of |20,000« The declarations in all these oases were verified, and 
the euits were predicated upon the theory that the Orchard Coal Co* 
bonds, which are here alleged to have been worthless when purchased 
In 1925, were -orth |20,000 when they were exchanged for standard 
bonds, a month later* 

There is nothing in the record to indicate that /Olen, who 
is the only one with whom plaintiff dealt prior to the purchase of 
the bonds, and who is alleged to hare made the representations, knew 
them to be false, and, as heretofore indicated, there is no evi- 
dence from which the court could find that the representations were 
in fact false. Since the action is predicated on fraud, it was in- 
cumbent upon plaintiff to prove fraud by dear and convincing evi- 
dence (Schi avone v. Aahton, 332 111. 484, 498-9), and his failure 
so to do precludes him from recovery. J?^om all that appears in the 
record there is nothing to indicate that Allen, who sold plaintiff 
these bonds, did not honestly believe the representations to be true* 

On the question o" daaiages, plaintiff contends that he is 
entitled to the difference between what the property would have been 
T^orth if the representations had been true and what it was in fact 
worth. Defendants concede this to He the correct measure of damages. 
Hevertheless plaintiff had the burden under that rule to prove v.hat 
the bonds were worth when he bought them, and there is no evidence 
whatever on this point. The argument advanced in plaintif f » a brief 
assumes that because the Standard Goal & Coke Go. went into seeeiver^ 
ship some nine awnths after the original transaction viaa consumniated 



-6- 



wt9«Tfiiio tit xoHwi« tbo^io&oooiq i©ri*on. .wjsJ '^^. •IfXS ^dt to coHbI 

-c. , ioC hxariorjrt) ei,. -notf fc'r .s^frsiifore I>Ml 

■jt -if di' rrcctr ^- taw aiixrtt »£{# 

J:: 'i%3i\ri :.ti', ~' " • ■' '' -.ry -""uJ m* 

,vr:o: \ :■ -ecTc . , abftdcT «y||| 

- r • . : rr»b 

MS.SC evad blxrow Y^t«fo!iQ ©rii f«if^ ne^t^^-vf iJiint 

• 'u •/.. oil »i 9,9^^ b^ ,^^j^ cTiSEgifOcf - ,_. co^-r ^.f^w rftliod <m» 



" ■ i..---. iu am .:-;yj.^, , . njtn •opta q^ilte 



-9- 

that the bonds of thet Crckerd Coal Co. JbOBadoc were worthless when 
plaintiff bought th,em. Xhls asaumption Is hardly oonsinti^nt witk 
the fact that plaintiff made the exchange of bonds a month aftes- 
hl8 purohase, and receired 4^1»082 in cash plus the Standard bonds* 
The Standard Co* receivership had no direct bearing upon ths value 
of the Orchard Coal ">o» bonds* The exchange wae made by plaintiff 
voluntarily, and he does not charge any fraud In connection v?lth that 
transaotion. The total mortgage indebtedness of the Orchard Coal. Co*, 
according to the circular, was |461|600, whereas that of the standard 
Co* was ^1,300,000, and it would appear therefore that plaintiff's 
loss resulted, not from the purohaee of che Orchard Coal Go* bonds 
but from the subsequent exchange for junior bonds of another coinpany 
which had a much greater ladebtednees* In fact, this was the theory 
underlying the seTeral proceedings filed by plaintiff to set aeide 
the exchange under the Blue SJcy Law, and plaintiff took oath that he 
had been dasaged to the extent of 120,000 by the exchange of thes« 
securities. The four suite hereinbefore mentioned evidently pro- 
ceeded upon the aestuBption that the Orchard bonds were worth what 
plaintiff paid for them, and It was only after the Blue 8ky litigation 
failed that plaintiff resorted to the charges of fraudulent mis- 
representations and alleged that the Orchard bonds, whioh he thereto- 
fore contended were worth ^20,000, were actually worthless* 

On the CiuestiOB of fraud, plaintif/ relies principally upon 
his conversation with Joseph P* driffin, one of the dsfendants, during 
whioh (Jriffin is stated to have said that he knew the Orchard bonds 
were bad, that the company was no good, and that the bond 3 should not 
have been sold* since the judgzaent in favor of defendants was entered 
en a directed verdict, we must assume that Griffin so stated, hoT^ewer 
improbable It seems that ono of the partners of J* ^s. B«che & Co. 
should have voluntarily made such a statement. However, In the 
same conversation Oriffin said thet he, like plaintiff, had also 



j>-a? Ail* f.oii»enifoo ni feiw-xl ^^a «SXjBda *ox! «eo& ©if feUfe; i\ll%r>irfuLoir 

..;^.-..,. .... .-„.- . . .-- tii©*ii(e9a »»»JE 

: j^JiiT £;;;ao Hod Ytlitsi&Lq bti» «VJUI ^£ &m£K ^i ishtfti Q'itBUSStSKti tlU 

i«i^ 7^?? *if.f?:' ':^rf* rtotXa Xiao saw .tJ; £rfi« ,Mi»xil «|tt Jbliaq l:it*iii*Ior 

-«i*«Tft«!J- «kd ftolilw tetiit«tf fexi->xi9i:0 aii* tfa^* b»j»XX9 ftiw? «ffol2s!^ffi»»«»^^»l 

,u»oXrf;Jt<*w TriXFxr*o«» «'£»# ,000,08% {T ^w b«ferrsJw»o «T*t 

#tn U0«ii0 r J>MK^ ci(d ii-.iii ooA tho«3 on e4«!^ ^fpm^mtn mit dai^.^ «^)ficf sisir 
1fX9tttt» »»*» a#<i hr 1" ■ T^o tov«l ni :5: €)s.;e^o:/t. alf* «t>itiD , M.'ja K»ftrf *T.»d 



-10- 

relied on the circular, and it is highly improbable that he could 
hare done so if he had known that the bonds were worthless when 
plaintiff bought th«a« In any erent, Griff in* b statement did not 
tend to proTe the facts which plaintiff was required to prore. 
toiffin made no representations to Induce plaintiff's purchase, and 
in fact nerer heard of it until aereral months thereafter, and plain- 
tiff's testimony as to the conrersation had with Griffin could not be 
taken as an admission of the falsity of the facts contained in the 
eirottlar, which is the gist of plaintiff's action. 

What we hare said leads to the conclusion that plaintiff 
failed to prove that he was induced to purchase these bonds through 
the fraudulent misrepresentations of defendants, and also to show 
that he was damaged* The court was therefore Justified in directing 
a verdict in favor of defendants at the cloeo of plaintiff's case» 
/vccordinglyt the Judgment of the Superior court is affirmed* 

ATTIBMBa}* 

Seanlaa, P* J«, and Sulllveoa, J«, eonour* 



*.^-«^ 



38830 



Appellee t 

T» 

CARSO:^ PIRI-S SCOTT & COMPAJBIY, 
a oorporation> 

Appe3ilaiit* 




APPBAL PROM MDHICI^AL 
COUBT OF CmCAOO. 



28 5I.A. 5 95^ 



MR. JUSTICE yRIEHD BSLIVBSRSD THS OPIiriOlf pF THE COURT, 

Plaintiff brought suit to reooTer daK»ages for injuries 
resulting froa a fall on tlie stairway of defendant's department 
store* Trial vas liad before the court witheWt a jury, and at 
the olesc of plaintiff's eridenee judgaeat va s entered in faTor 
of defendant, aubsequentlyt on plaintiff's aw otion, the court 
granted a new trial. The cause is here for r evio^ under an 
order of this court allowing defendant's petitl on for leave to 
appeal • 

Plaintiff 8 statement of claim charged d efendant with 
negligently permitting "the stairs to the basemer. vt of said s 
to be and ireiiuain in a dangerous condition, and ga ve the pl* ^ 
no warning or notice thereof i** that in consequence thereof P 
tiff fell down the stairs into the basement below i 'md was severe J 
injured; that she suffered great pain and became o"b jlig»**° 
surgeon's charges to the extent of |125 suid lost ti. ^o weeks 
at §35 a week* 

The only eridenee introduced at the trial c* 
plaintiff's testimony and that of Hr* Alger A, Clari 
her after the injury. Plaintiff testified that oa t 
at about two o'clock in the afternoon* while shoppjf 
■tore she was descending the staiirway into the bas^ 



insisted of 
,, who attended 
jetober 2,1934, 
in defendant' 
^nt when her 



0f.8C« 






.00A01H3 "^ro I'mrno I 






^Be S.A.I- 

^Twoo exi;f tflciJ^c -ifl B'lYs.^ate.Lq no t^^Xdn©tjp®e<if«fc, *ita«l)fia'i:9fa io 

'C^&xsvea baw *•*,,,, i ««Idtf ^iminacr erfi o;ini a^l»;J& exit a^ol) XX»t 1^11* 
^ol 6etfi«jjix<, tfa ttttaoftcT bfs» nieq *B»%a {»»t»l^«e srf« rfjariJ |6»tJtft«i 

^o betHtftaif ,0 j[j,i<s;) erf* l« b^ouboitml ©ansbJ-vy y.Xno sii:i 
»/>no^;f:: Off , , t»i^lu\ .m lo ^.-.dJ oiw3 TC«o«icias* a 'tliJfiXiiXq 

no/iv ;tit/ itBtiii alii oi f- ' - --■•i«*a sxtcr -^ni^fr ■>"•?- •• '■■'f-' "-^o** 



-2- 

heel caught on the steel plate on the edge of the second step froM 
the top> causing her to trip and fall to the bottom of th« stair- 
way t - a distanee of a'bout six stairs* She fell forward and was 
slightly shaken* Her ankle was sprained and her right knee and 
shin bruised* She was taken ia a wheel chair to the infirnary ia 
defendant's Btore» where she was treated and bandaged* iifter 
leariag the infirnary she returned to her place of employment 
hut was unable to resume work and then proceeded to the office of 
Br* Clark in the Pittsfield building* who examined her and gave 
her further treatments* Thereafter she went home in a taxicab* 

Dr* Clarkt plaintiff's only other wltnessi testified that 
he applied dressings and new bandages to plaintiff's shia bone» 
that she complained of severe backache and pain in the lower part 
of the abdomen t that he examined her three days later and found 
a retrod isplacement of the uterus and a tender condition through 
the pelvic region* Ho ether evidence was offered by plaintiff, 
and at the close of her case the court f otmd in defendant* s favor > 
with the following comment x 

"The Court: It is regretted that the young lady sus- 
tained the injury* but the Court has no alteimative but to allow 
the motion*' 

As ground for reversal of the order granting a new triG^y 
it is urged that plaintiff failed to prove (l) that defendant 
negligently permitted the stairs of its etore to be and remain in 
a dangerous condition* and (2) that defendant had actual knowledge 
of any dangerous or defective condition* or that any such condition 
existed for a sufficient length of time so that defendant in the 
exercise of ordinary care should have had notice thereof* 

The well settled rule of law* v^hich requires one who invites 
others on his premises to keep the same in a reasonably safe condi- 
tion* does not make the owner an insurer of the persons thereon* 
Therefore* in order to permit a recovery in this case it was 



arox't <i»^a baoo^s etii to ei^be eds no 9^alq Laeia »sii no od^^aao leexi 
fia*i b%tnrxo'i ll^Ti edd ,a'ii^^i'^ xia .tuprffl lo e^n&i^tb b - t\;«w 

fOftoc ftixle B*^!tiif!li5J:q o;f sasj^bxstJBd wan bas agaisesii) fceliqqa sd 

*iAa xswoi Bids at eJcxsq; fens sii043^»jsc siers. i i^XqjiHoo tdA 44ue(^ 

f>mic'^ baa i^;sbS. a\^{> oe'^itt -:t>jci fe^^niAGxe da .)i3ii<j «nesiobc(fi drl^ lo 

<TOT«t aUflsfenaleb ni feiuiol *uwoo edi qqso leri lo saoXo ^di iB fma 

«-c8i3iiaoo s«jwoXIg1 &di dilM 
-aire y r{;? *.<^.^ bsjie ;tl j.t^ciJOC sitlT" 

. riox^oa bdi 

*ft/5bn«lf»b ■i&i- rQxq oJ foslxfil 'ilxJKxaiq 4iilM fe«B'5X! si ii 

nl nJUwiftT hoB sif o* &x«ire 3*1: io axx,a;»?4 axli bo*4>i««©« ^XiaejiiLlSsn 

s^bcLvornl l»u3oA b»d iafitmf)1^b iadi (Sl , :;;-o. .i^^b « 

>i;)i bnoo rfoun y.as *«rf;t tLO ,iiai.tibnoo ertiQ&leh xo ai/oTsaiteb \;a» "io 

9; .bns^ob iBdi oa aiux.^ lo tliansX iadloiltut^ a 10I bsialxB 

• lo&ieiS* Soi^oxi bexl evAtf bXworfs eis© xtsflilno lo eeJtotexa 

- .. ^I*B«osjB»t . Q^ciasTq bXxI no aiitdio 

•xio'T-f :; sfioaiftq yiii iLo ittuoni as isxiv/o r:rfj ■v^.-n .lor^ ci&ob tantli 

vX Mi«iO aiiiv^ ax y;xavt'jex x. ;^liMi:i ..iiols-ioiiT 



necessary for plaintiff to allege and prore that the place in 
question was not In a reaEoaably ssfe condition} that if any 
unsafe condition did exist, it iwas cauaed by soae negligent act 
of defendant or had existed for so long a time that defendant, 
in the exerciB© of reasonahle care, rould hare known of it in tlaw 
to hare prevented the accident; and that the fall of plaintiff was 
not proximately caused hy any lack of ordinary care on her part. 

In Leach r. 8«_ S* Kres ize Co. , 147 Atl. 759 (R. I.), plain- 
tiff slipped on a stairway and iras in^lured . It appeared from the 
evidence that her heel eame in contaet nith. the braes nosing on one 
of the stairs and caused a sliver to rip up from the nosing, thereby 
releaeing her heel pmi permitting her to fall and suetaln Injuriee* 
The brass nosing when installed on the step Tftas three-ei£:htlis of an 
inch thick. It was plaintiff's contenoion that defendant negligently 
permitted the nosing to rexaain in use until this condition wj-s un- 
safe and dangerous to persons using the stairs* The only evidence 
offered to show that the nosing had become worn was that of plain- 
tiff, who testified that firfter she had fallen she looked and saw a 
sliver of nosing as wide as her finger and four or five inches ia 
length extending upward and that the edge of the slirer was sharp 
like a saw. The reviev«ing court held that the court properly directec 
a verdict for defendant, and saidt 

"Assuming that at the time of the accident the nosing la 
question was in a drngerous condition, there wa.^ no evlrlrinoe either 
that the defendant knew of the condition or that the dangerous con- 
dition hrtd existed for such n length of time that defendsjit would 
have known of said condition, if reasonable care had been exercised* 
* * * "Defendant's duty wan to use reasonable care, and ther« aae 
no evidence whatever tending to show that suoh duty was violated*" 

In Bohannon v. Leonard ato* stores Co** 197 K* C. 755, 150 

S* £• 356f defendant had a retail mercantile business on the first 

floor of a building and in oonneotioa with it also had a beauty 

parlor ea the second floor. Across the front of each step on the 

stairway leading to the beauty parlor was a metal stripf 2 inelies 



io^ i^nasll^en emoe ^ef fcsexfBO s.ew ^Jt , ;}sij;:6 bib RQlitbnoQ elBHHII 

,*flsfenp1:9£) *i3xf5 soilJ is snoX oa lo'i bsJaXxe Jbexl xo 4a&bn?lab 4o 

SAW lli;rni.c- -I/j'i silcr *ijx. ,jfi9|3ioo ,:j^«©vdiei araxi od 

MIA on suXaoii Qasza i;ii. ,i amso Xs?94i i.'.ul ^firiw ©onafai'sr© 

«1 s«rfoni evi -^ SfiXeOfi to tevlXa 

, f • . . 



T»^ ri 



9di wo cte*a rio^e lo iaoi'L sji^ iso-ru. .looXx baooic: sAi no ioX^uiq[ 



-4- 

wide. The surface of each of these aetal atrips as they ley down 

vas one-tenth of an Inch higher than the rurface of the step* The 

purpose of the sets! etrtp wes to protect the edge of each step from 

vear. Plaintiff had gone to the t>«?.uty parlor and on deseendiag th« 

stairway eaught the heel of her left choe on the metal etrip on tlM 

edge of the step, and fell. The trial court found in faror of 

plaintiff. In rereraing the judgment the reriewlng court seld 

(759)1 

"The lialjllity of the owner or occupant of a ijuilding used 
as a store for the sale of merchandise to a customer or other inritee 
for damages reaulting from injuries sustained vjhile such customer or 
other invitee was in the building* and oaused hy some condition 
therein! is founded upon the principles on which the law of negli- 
gence is predicated. * * * The owner or occupant of the building la 
not an insurer of the safety of his customer or other invitee, whils 
in the building. * * * He is liahle only when the injuries resulting 
in damiages were caused by his failure to exercise reaBon^ble care to 
provide for the safety 01 his customers or other invitees. * *• * 
We are of opinion that the evidence offered at the trial * * * falls 
to shov tliat defendant was negligent in maintaining tho stairway * * * 
The fall was an aocident» for whieh the defendant is not llahlo." 

In both of the foregoing decisions there was sono evidene* 
tending to show negligence of the defendant; nererthelesa ths court 
in oaoh case held that the evidence submitted » hoth as to negligenoe 
and as to noticet was ineufficieat to justify s. finding In f«Tor of 
plaintiff. In the instant proceeding there was no evidence that 
defendant was negligent, and no proof offered that ths stairs or 
metal strip was in a defeotlre or dangerous condition. Neither 
was it shown that defendant had notice of such oondition» if it did 
•xlst, or that it had existed for a yuffieieat length ol time eo 
that defendant, in the exercise of ©rdinaxy cax'e, should have had 
knowledge thereof. 

Plaintiff's claim la founded solely on the contention that 
she caught her heel on the etoel plt.te along the edge of the stop 
as she was descending the etalrway in defendant's store* and it is 
argued that a priaa f^cie case of negligence was established by ths 
fact that "defendant maintained, or allowed to remain in a defeotirc 



-.*- 



t» lovai J3i Jjruio'^ J'iwoa lair^ ©iJk'T •XJtol i^m* ,q©*g edJ' t© 9afMi 



h-tP.L- •C'ri",! 



«i 



-^ - >s> to\ 

S 

■ :.i 



.•.l.tiC'Di5 Hii 



o4 
xiT 






, uiiaiiauiia c.ua^.- 






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kx 



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eonfUtlon, a etalr-vay with a laotal atrip covering the edge of 
each tread." In all the cases cited lay plaintiff there was 
evidence of negligence in ;,he naintjaance of the preaises. In 
the instant c-abo 'fie are unabla t>o I'ind any evidence in the record 
supporting the chiirge and tho arj^umont that uho ata.irv/ay v/aa 
"quite obviously In a defective and dangerous condition." '/it]>» 
out Buoh proof xjlain!:irf ii-s failed to malce a caae, and ..e think 
the court properly mada a finding and entered judgment in defend- 
ant's favor at the close of plaintiff's oaae. i^ince the court 
found defendant not guilty and entered final judgment on the flnd- 
in£^ it will be unnecessary to remand the cass* The order granting 
a new trial is therefore reversed* 

^eanlan and Sullivani JJ«» eoacur* 



. : i i i btipo 

&aj5a 9ni lie. i. ■ -^Pid dwts 



«'it>OHQO t • .• t- ( . ... *. ...I.-- :.;-■.. 



38337 



PS0PL3 O.f STATj^ of ILLIIJOIS 

•X r«l, JOm 3. RUSCH, ./' 

Defendant In iSrror, ' ) !„,, ' / 




3BR0R jWrCoVi^TY UOURT 



HEERY LTiiCH, LOUIS H, CAHBOi^'E ) / 

and JOHJi LIBHA, ) 

Plaintiff! in Error. ) ^ ^ ^7 

28 5 I.A. 595"^ 

MB. JUSTICE 3DLLIVAN DELlVlfiRED THE OPIiilOS OF THE COURT, 

Ihl» writ of error issued out of this court July 2, 1935, 
la proeeeuted to reTeree a Judgment ol the County court of CooJc 
eounty entered by Judge Charles T, Allen on August 17, 1934, 
senteiiclng Henry liynch and Louis JS. Carbone, judges of election, 
and John Lidra, cleric of election, in the 9th precinct of the 
27th ward in the City of Chicago, to the Cook County jail for 
ninety days each lor conteuipt of court 00121^3.^1 1 ted as sucn judges 
and clerk, respectirely, in their canTass nxxd return of the rotes 
east in said precinct at the (General iilectien held ^oYeiiber 4, 
X930. In oast i^o, 37796 a writ of error was sued out of this 
oourt involving the identioal parties and subject matter. In 
that proceeding the conteimnors' bill of exceptions was stricken 
TT&oi the record karoh 5, 1935, and thereafter on ii£.ay 24, 1935, 
this oourt rendered its opinion affiriuing the judgment of the 
County court. 

October 8, 1935, the following motion, which was reserred 

to heading, was presented in behalf of the defendant in error: 

"^ow comes THOMAS J. COURTl^SY, States Attorney of Cook 
County, attorney for Defendant in Error, and ifiOves the court to 
dismiss the Writ of Brror in the aboTe erititled cause for the 
folloTfing reasons: 

1. That the same parties. Plaintiff in Srror and DefendaaAt 
in Krror, the sanie subject matter, have been adjudicated by this 
Honorable Court in court number 37796. 

2, Ttiat the errors aseigned by Plaintiffs in Error in the 
above entitled eause are included in the asslgruoient of errors filed 
by Plaintiffs in j^rror iix cause number 37796, auid all of the issues 



tB£8fi 



t'tort^. .-^ 



.w «li*OL , 



^56 2 .A.IS8S 



oTiS. at a't'titai&l 



.• -n;-^n T-'F? ^;a wm^o sn-T crsfji^YiiarQ: isaVIxiuh edits ut. ,m 



, .H ■ , - ■ -i 

tO'l I.fjli'. . .- 

aa^O";' ssarrwo ixeajr ni ^xiarlio^qB'^i ,ili9lo Jbiis 

alxll 'io tuo vjf 1011 i:w ^ deTV£ .oA »ajBO al .0£9i 

00 --^w wno- .lid * MTQiun9&tioo 9iit aai:|>'j»»©oig ^jij(£^ 

•itf^ to sasto^bul ' !l€Ko a. 71 h&'i^bfwi tru oo nidi 

,d"twoo ^J"auaO 
ftaTt«a«i a«w uoxdw ,nol;tQMB sni-voXXot &iii ,aS€J[ ,8 ttacTotaO 

;9av'X« ni insibam't*b en b^d^ndaa-xci a,«w ^^tilQu*od oi 






•till 'to 



i .TjiU-v'cXXw'l 
(i 






inTolYed In oaus* numlser 37796 cover the Issues raleed in the 
abore entitled cause and esiid issueti have been decided adTereely 
to the Plaintiffs in '?rror "by the judtinent of the Appellate Court 
oi Illinois, first District, Second Division, in cexise number 
37796." 

The contemnors contend that they were found guilty of 
direct contempt as officers of the County court, tnat it was neces- 
sary for the county judge to hare stated in the judtjnent order facts 
as to their conduct constituting the content with cufficieiit par- 
ti ciilarlty and certainty to show that the court was authorized to 
enter the order and that the conclusion of law contained in the 
order that they did •knowingly, fraudulently and unlawfully make 
false return and eaavass of votes oast" is not a sufficient state- 
ment upon which to predicate tlae judgment. 

Ifhether or not this contention is meritorious we need not 
decide, as the contesmors carjnot be heard to urge it iif^re. As here- 
tofore stated, the identical Judgment order contained in the record 
now presented was before us in our review of this cause under the 
preTlous writ of error and it is inconsequentiai 'Whether the par- 
ticular errors assigned now were relied upon in the former proceed- 

it 
ing. Si>ffic^to say that they could have been. 

In Harding Co. y, Har^ifi g, 352 111. 417, in passing upon the 

question raised by the motion to di'-miss this writ of error, the 

eeurt said at page 4?6: 

"The doctrine of res .judicata is, that a cauaeof action finally 
deteriained between the parties on the merits, by a court of compe- 
tent jurisdiction, cannot again be litigated ty new prccerdings 
before the same or any other tribunal, except as the judgment or 
decree may be brought "before a court of appellate jurisdiction for 
review in the manner provided by law, ▲ judgment or decree so 
rendered is a complete bar to any subsequent action on the same 
claiiii or cause of action, between the same parties or t ose in 
privity with them. The doctrine extends not only to the questions 
actually decided but to all grounds of recovery or defense which 
might have been preeerited. ( Wrii^Jit v. Urilfey . 147 111, 496; 
Markley v. People. 171 id. 26; Terre Haute and I ndimaapolis Railroad 
Co. V. Peor ia iind .Pekin Union Kailwav Co .. 132 id. 501; Harvey v^ 
Aurora a nd aeneva Railway Co . . 136 id. 283; dodsohalck v. Weber . 247 
id. 269; People v. Harrison . 253 id. 625.)" ~ 



iL^souffi oaj- 



it 99UBH ni b^rlerai 

. ■■"'£ 



-••aea •£ •- ©J** '*o su^ei'ttt ^.tnoo .tost if) 



ii 



on 






to 



tfi f> 



Vi 






•tt3i 



The cause of action, the subject matter and the parties 
being Identical, the Judgment oi' tais court in case iso« 37V96, 
al'l'incing the Judgment of the County court, ic an absolute bar lo 
the prosecution of this writ cf error ^nd tne laotlon xo disa^ise 
earue is, therefore, allowed* 

In any erent our Supreme coux-t ii. an opiiiion filed at its 
April, 19 36, teriu, in The People ex rfrl» Jp^xn u« kuech v. Jrank 
^■otwas et al , ^ docket £o. 22645 (not yet puuliB.*ed) , in holding 
that a contesxpt case sir.:ilatr io this is not a orix&inakl proceeding 
and cannot be reviewed by writ of error, said: 

"Plaintiffs in error, who were judges and cierjcs of an 
election held in Chicago, fJov«taber 8, 19 32, were found guilty of 
contempt of court by the county court of Cooic county, whicn iru- 
posed various senttftnoes on the different parties. The citation was 
issued and the proceedings had pursuant to tlae statute (omitn's 
Stat. 1933, chap, 46, art, 2, sec. 13,) which provides for the sum- 
mary punisiuiient of misbei^avior by judges or cierica of exection. liie 
Judgments ?>gainst the plaintiffs in error have been al'firmed by the 
Appellate Court for tne Jj'irat District and a further review is 
sought by this writ of error. 

"The atcitute under wuich the plaintiffs in error vrere pun- 
ished provides, in substance, that Judges and clerks of election, 
appointed as therein provided, shall be coiiiaiisfcioned by and become 
officers of the county court, 'and shall be liable in a proceeding 
for conteu$t for ai^y iiiisbehavior in tiieii office, to be tried in 
open court on oral testii^iony in a suriiHiary way, without formal 
pleadings, but sucii trial or punieiimfcnt for contexiipt of court enali 
not be any bar to aiiy proceedings against such officers, crip^inally, 
for ar.y violation of this act,' * - * 

"In People v. Jilovsky , 534 111. 536, we held that a proceedk 
ing pursuiint to u citittion under 'che foiegoing section of the Uity 
Election act, was net such a criminal prosecution as was contemplated 
by section 33 of article 6 of tiiy constitution, requirin^^ that 
criminal prosecutions be carried on in the name and by the autr ority 
of the People of the State ox' Illinois, In the sauie case we re- 
affirmed our holding that conteiupts are not crimes, within the mean- 
ing of the etatute^def ining ruiadeiueanors, ( citing i^eople v. yanciarf . 
supra (Sll 111. 622)) and in People v. V hite, 334 111. 465, we held 
that a conteiupt under tuia act could not be said to be a crijuiual 
oonteo^t, as that term was understood at the ooniiron law, 

"It is furt'ier x,o be noted th;..t the acx expressly provides 
that no punishment administered pursuant to it? terms shall be m 
bar to any criminal prosecution v?]ier*? the same fucts constitute a 
crime, ^rtxerc-ore, the pro-vision pemits punisii^ ent for 'any ris- 
behavior in tiioir office, ' ITaie could include tiany things not 
criminal in their nature, such as boorish incivility to voters ?ind 
many other acts reudily conceivable whicn would not amount to any 
form of crime, Urjon reason, as ^ell as authority, we are of the 
opinion that t:;is is not a crif.^inal case wit-iin the ir^eaning of 
section 11 of article 6 of the constitution, .%n^ that we have no 
Jurisdiction to revierr the Judt^iient of the Appellate Court by 
Writ of error." 



•♦j> -' 'I 



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-ax 

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October 14, 1935, a motion, vi;.ieh was alee reserred to 
hearing, was filed in t>euall of tho oonteomors by their counsol to 
strike defendant in error** motion to diauiiss this writ cf error 
becauee of the irregularity and insuffioienoy of the service on 
their counsel of the notice of such motion. It is auffioient to 
state that, eO. though service of the notice of the motion was 
Irregular and did not coKiply with the rules of this court, counsel 
for plaintiffs in error waived such irregularity by responding to 
the notice in apt time with counter suggestions and with the 
instant iootion to strike defendant in error's motion to dismiss 
the writ of error. The motion to st ike is therefore denied, 

WRIT OV BRKOR DISkliiSfiD, 

Scanlan, P. J,, and Friend, J,, coiicur. 



oo «olva5e siij lo 150ns xoJtTtijaai fens i{*ix»I*s«TE'Si ♦seW Io 08Jjsd»<f 

ftBW noi*om arid to acJtct'oa sii^ to eaxy»»8 jcigisoilij ie ,#e£ii- *#^,*a 
I*»8t-tjjC0 .^liJco aiixi to u9liJi exicr rlcTiw ^J^'^^*© ^0« ^J^' ^^i* *t»3.XW8»'s*£l^ 



38409 



THE HATIOITAL BABK OF THB BSPUBLICy 
ete.» 

Conplainant) 



T« 



JA3ISS £• SWSHBT et al*t 

Defendants l>elow» 




HKARLBS B. BARTL3Y, 

Defendant and Appellant « 

T» 

PAUL CORKSLLf as receirer^ 
AppA3»«* 




APFISAX FROM 
SUPERIOR COTJHT, 
COOK OOUHTY. 



8 5I.A. 5 95" 



MR. JUSTICE SBLLIVAH DSLIT3RS33 THE OPIUIOH OF THB COURT. 



This appeal hy Charles E. Bartley seeks to reverse an 
order of tlie Superior court of March 1, 1935, slloriing certain 
fees to Paul Corkell» reoeirer, and his solicitor en the jp-ouad 
that sucH fees ars grossly sxoessiTet 

Proceedings were brought to foreclose a first xiortgage 
on the premises known aa 5000-5006 Drexel Boulerardf Chicago* 
Prior to the entry of the order froa which this appeal is taken 
the period of redenption following the sale had expired* Bartley» 
a defendant in this oause, owned approximately 85^ of the honds 
upon v;hich the foreclosure was predicated and owns approxiaately 
&5% of the deficiency under the decree entered pursuant to th« 
sale* 

One Murty M* Fahey, who had on IToYeober 28» 1928» heen 
appointed reeeirer of the property inyolredt filed his first 
current report Hoyeaher 17, 1930, showing that such property 



QOhei 






66S.A.I2 8^ 












iJCAm) 



t^KsIXsqqA 5iij8 ixia&ne r 



, serines. -.t na tkLIl.JL-tOD j;UA'a 
* e af:Xs>qc[A 



• T:-KJ00 aET "^O EO 1151^0 E: 



IIAVIJuLUa §t)If(^l ,HK 



no TOJioiXOf) e 



• dB'O'^^ ,bX£V9Xj;oe X&xffl'xcr aooa-OOOC a,£i £c«FO*ij£ a^Rioeiq srf? no 

,-^tiX4a*»a .be^iqx* bail 8X«e sttv' eitiwoXXol fiei^qine ^» t lo fcoi"xo<i eiii 
ebiiod 9il4 to ^8 ^Xd^eoJcxo'xqqB btuwo ,0buao al^fi^' ni ^nsbrtsteb « 

• eX.«« 
r.e»<J ,C&eX ,8S ledneToK «o barf oriw , ^Oif o*^ ♦?.{ \;rftiiM SJiO 

*Bii'x aid b»X11 ,b©TXorni ^*^0qoxfi eriJ io ^tsriftofti bej^nio^qa 



-2- 

was iaproresi ivlth a three-story brick building containing t-welr* 
large apartments reaodeled into sleeping and light housekeeping 
rooms and that he had on hand ae receirer a balance of i'4»120*78* 

March £:8« 1951» an order wae entered appoini.ing ir'aul 
Corkell Bueceeeor x^eoeirar. 

Kay 15, 1951* an order wai? entered dirocting j''ahey» as 
recalTer, to turn over to Corkell, his suGoeBBor, $5,636.78j and 
further directing Fahey' s discharge as recelrer upon auoh payment* 
Pahsy v?aa found to be short in his accounts to this extent and 
his surety thereafter paid Oorkell $4,934.49 on account of this 
shortage. 

Approximately |;9,000 collected during hie Incumbency by 
l''ahey ifae turned over by him or fo- his account to Corkell. The 
following suHuaary of the six current reports made by Oorkell ehows 
the periods corered by aame as well as the rents collected by hla 
and the amounts allowed and paid aa fees, respectiyely, to him 
and his solicitor < 



1st report 
Jan. 26« to June S» 1931 

2iicj report 

June 6» 1931, to Jan- 

uaiy, 1032 
Srd report 

Feb. 1st to July 31,1932 
4th report 

. ug. 1, 1932 to V.ay fM, 

1933 
5th report 

May 25, 1933 to January 

e, 163 4 
6th report 

January '0 , 1034 to June 

18, 1934 

The firtst five current reports of rf^ceirer Corkell were 
approved by the chancellor cind the tllowancec for fees ap above 
indioatad ordtdred Aithouc objection* 

fhea hie sixth current report Aas filed Juno 22, 1934, for 



"Hents 
Collected 


He( 


reiver' s 
fees 


Attorney* s 
fees 


^ 8,013.7i 


- 







8,507.70 


$2,000.00 


12,000.00 


2,400.00 




125.00 


125*00 


2,0O0.0C 




50.00 


100*00 


1,«83.40 




100.00 


100*00 


l,619.ti0 




••MM 


» •> * 


?24,424.36 


W 


,^n\oz 


^2,i5ii5.00" 









airi* ^o J^HWe 



;>.*«§e»^ IXajitOO bJLi;( 



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00, sax 

O0«00I 



ts^.'ei X 



OO.OOOt 

oo.asx 



oa.ooi 



avn;.v'- 



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j'xu^ioiXoa fixii Ijr3 



d"ro-i9n JaX 
JaX .cTs^ 



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•V*r Ilfi^tor' ~;-rl'-,rj' -: "io al-xo: 



fOl ,^r*:ei t^C eiurX btl 






-3- 

the p«5riod above ehown, il recited generally scrriceB rendered 
"by the receiver and his eolicltor and prayed for the allowance 
of fees. Objections were filed to this report "by Bartley whicli 
recited "that the recftiyer, since the date f his appointment, 
has collected aa rentals the gross svim of not in excess of $23,000> 
excluslre of the amount reported in the sixth account, and has heen 
allowed, together -with his solicicor, ftaes amounting to ^4,600 tr 
an .-xEioimt oqual to 20/» of the gross collectioriK, and io, therf-forep 
not sntitled to any further eompensf tion." 

The recelTer*8 srarenth and final account anri report y/aa 
filed T;ec?mbi3r 7, 1934, showing groer rental oolloctionG of 
J^l»497»37 for the pericd fron June 19, 1934, to the date of the 
report and praying for the allom.nce of R4c'ition?.l fees in the 
acount of 1^50 each tr> the :r' ec^iiTer and Ms solicitor* Cupplemental 
objections filed by Bax'tley to Corkell' s aevfcnth arid final report 
and to his dlfschargo as receiver alao renewed his objections filed 
to the sixth report, a.nd arerred thtit the fees therotoforc allowed 
the receiver and his solicitor under tho seeorj-r?, third, fourth 
and fifth current reports were axceapive in tiint thay exceeded 20j{ 
of the gross rentda collected. 

It will be noted that the gross rrmtalK actually collected 
by Corkell, as sho-vm by hl^< e.CTen reports, a^iounted to ^25,921.75, 
and that exclueive of the •'**250 each allOTUsd the receirer arid hie 
attorney ps fees by the order r.pproTing the eeventh and iinal rtiport, 
they hr.d theretofore been allo-wed fees afegr tgat ing ^4,600 under thi 
second, third, fourth and iiftifc cui'rent reports. V.hile it is true 
that Oorkell accounted for almoBt 4^55»OC)0 of rent collections* about 
|9,0GC of that amount repre&snted rente oolleotad by fahey, which 
vi&s turned OTsr to Corkell as hia aucceasox. I'he record also dla- 
olosas r^hat ooiamenciag with ifoyeaiber, X931> the property wae operated 
on a net leaae, whloh necess&rlXy rendered the reeelrer'a duties 



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lees arduous* It ia suggested that Corkell's solicitor also 

a«ted for l^aheyt in isvhioh oapaoity lie was allowed no compensation* 

That faot should and can have no 'bearing on the fees allowed hiM 

as Corkell* s solicitor* 

When Bartley's objections to all the receiver' a ourreat 

reports » as well as to his final report* were called for h&axingt 

the following oocurred i 

"ttr. Smith; May it please the Court, I represent Gharloc 
S* Bartleyp whoa your Honor will recall is the owner of nore than 
80.^ of the deficiency decree heretofore entered in this cause} 
Tarious ohjeetlons were raised and filed by ny client frofi time 
to time to the Accounts rendered "by the iieceiver, particularly to 
the fees charged and allowed* We are here this morning to state 
that suLl objections haje been disposed of without rac.uiring tho 
tise of this Court with the exception of the objections raised 
to the fees allowed to Paul Corkell, as KeoeiTer, and to Joseph 
H. Hicolai, as solicitor for tho Receiror. We would like bri'^fly 
to be heard by your honor on th3s<3 objections* 

*Mr. ^Ticolaii Your Honor, this is the case in which wo 
hare all spent so much time. ^A'e believe that the fees allo7?ed 
are reaoonable and that Ihe final account should be approved and 
the Receiver discharged without further delay. 

"The Courts Aa you know, this case has already required 
a great deal of my time. Mt. 3mith, you have not been in this 
case from the beginning and you may not be informed asto the 
amount of my time and of the Heoeiver's time and of the Receiver* » 
solicitor's time which has been required. Chis Court took notice 
of the fact that the first Receiver appointed in ihia case, Mr* 
Pahy, failed to perform his duties; that thereupon and upon tho 
objections of Mr* Bartley, a great deal of time was consumed in 
straightening out this Heceiver's accounts j that Mr* ^icolal, 
Mr. Corkell, Mr* Bartl^ and his attorney have had very frec^ucnt 
and extensive hearings before me in this regard; that subsequently, 
as a result of these herrings, approximately 16,000 who recovered 
back from the Bond ing Company covering the first Receiver and Mr* 
Corkell was appointed in hia Eitead ; that l!r. 'hartley waa allowed 
some '■^2,0'jQ at thc^t time for his attorney's fees covering services 
rendered by his attorneys during these proceedings; that, ^incc his 
appointment as x^eoeiver, Mr. Corkell has, with the greatest dili- 
gence, sought to collect the maximum income from thi;5 property 
and dsalt with a difficult tenant with respect to whom he had a 
number of hearings; that he has served as rsceiver over a period of 
four years, and that during that time he was J]hasJ presented seven 
detailed accounts, which in themselves, required conaid-;irable time 
to prepare; that objections were raised to many of these accounts 
and that there were many continuances snd hs rings upon che saiue; 
that Mr. Corkell and his attorney, Mr* Nicolal, have spent oonsid- 
erable time with you in conoid-ring ilr. Bartley' b cbjcciions to 
these acooiinta. Countless hours of time were consumed in court 
alone upon th'iBe varlotis he-rings by Mr. Corkell, Mr* J^loolai and 
Mr* Bartley in my presenoe, and that in addition time much pretrter 
than that has been spent cut of the presence of the court, not only 
In managing the property and dealing with a difficult tenant, but 



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-5- 

in the preparation of the accounto and consideration of the ob- 
jections* The Court has taken notice of the aaount of time and 
labor consume'^ herein, much of vjhioh took place in the actual 
presence of the eourt* 

"It is the opinion of the court that the fees allowed to 
this date are reanonahle and are earned fees, oonanenaurate with 
the amount of tine and labor conBumed* oince the Court has personal 
knowledge of the extent of these serriceaf there can he no justifi- 
cation for any further hearing upon this question of feee* and if 
that is the only objection now ponding, it is my duty to approre 
the final account as rendered* together A^ith all past fees allowed* 

"Mr. Saithi I realise that I recently entered this sa8e» 
having bean substituted for fonaer counsel within the last six 
months. NeTertheless, if the court please, I aak that these fees 
be reduced brjcause they are in a proportion of approximately 20;j^ 
of the rentals collected* There is no v^ritten teatimony in the 
record to support the fees allowed, and my position is that a 
reoelyer, as an officer of the oourt, stands in a posicion of ser- 
Tica and cannot neoessarily be remunerated in proportion to the 
amount of work he has performed* In short, the inoome of the 
property ought to form a liaitauion as to the amount of these fees* 

''The Court* I agree with you that the income of the property 
is an element to be considered in fixing fees* However, it is my 
holding that the court has discretion In the amount of fees to be 
allowed and that all of the eleiuents of income, time and labor must 
be considered together* In view of my personal knowledge of the 
latter, as I have reviewed it, I consider the fees reasonable and 
that no furthei hearing could be justified. If you v/lll prepare 
an order, I will enter it, approving the final account as rendered 
without taking teetimony and dlscherging the receiver*" 

Thereupon the chancellor entered the order appealed from, 

of which the following portions are pertinent* 

•♦It further appearing unto the Court that no proofs have 
been taken with respect to the services performed by said Beeeiver 
and his coiuasel as basis for the fees allowed to datej that no 
hearing has been had before Master in Chancery Sidney S. Pollack, 
to whom said cause was referred on the 7th day of December, • . '>• 
1954; that said parties desire that that portion of the order 
entered l^ecember 7, 195^, referring said cnuse to Master in Chancery 
oidney S* Pollack be vacated and that the question remaining with 
respect to said fees shall be submitted in open court, * -* * and the 
court having examined the various accounts heretofore filed by the 
said T^eoelver and the various orders allowing fees from time to time 
in connection therewith and the Court having examined the objections 
made thereto and after having heard the testimony of all parties and 
being fully advised in the premises, 

"The Court IHurther Orders that the objections of the said 
Charles S. Bn.rtley filed June 29, 1954, ani ¥prch 1, 1935, be and 
the sfijne are overruled; that the Sixth Report and the Seventh and 
:^lnnl Report bs filed by thfi asid Paul Corkell, as Receiver herein, 
be end the same are hereby approved* 

••The Oourt IF^urther Unds that the fees heretofore and herein 

allowed to Paul ^orkell, Recsiver, and his solicitor, are reasonable 






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and the Court allo-ws further and additional feer to the snld 
Paul Corkell, as Receirerj in the amount of Two Hundred -''ifty 
Dollore (5'250,00) and further and adc-itional fees to Joseph 
H* STioolalf as his solicitor i in the asount of Two Hundred Fifty 
Dcllara (:|250.00). 

"It l8 yurther Ordered that the said Paul Corkell be 
and he is herehy discharged from further duties as such IleoeiTer*'* 

Defendant Bartley contends that the aggregate amouni: of 
fees alloired to the receiver and his attorney is excessive and 
disproportionate to the gross rent collections; that a rsceirer 
is p.n officer of the court and a public servant and that the compen- 
sation allo-\i7ed to him and to his attorney » as veil as to other public 
servants » cannot he fixed upon the sole hasis of the natture and ex- 
tent of the services rendered so as to appropriate an unduly larg« 

should 
portion of the fund 'ffhich it/be the alo of the receiver to conserve | 

that since the extent and nature of the services of the receiver and 
his attorney entered into the oompensation allowed, he should have 
been compelled to offer proof of such services upon Bartle^'*' s ob- 
jections, the personal knowlsdge of the court, together with the re- 
ports of the receiver, furnishing an insufficient basis for the allow- 
ance of fees aggregating 20fa of the gross rent collections. 

Vxe receiver* 8 theory is that the court had personal knowledge 
that the services were extensive and diligently performed and that the 
chanoellor's action in fixing the amount of the fees approved did not 
constitute an abuse of discretion* 

The chancellor had full power and authority, when the final 
report of the receiver waui filed, to investigate and determine the 
correctness of all hia accounts, including the allowance and dis- 
bursement of fees, notwithstanding previous approval of reports and 
accounts for parts of the period of the receiver's administration. 
( Standi s h v. Musgrore, 223 Til. 50Oj Steele v. T^uprecht , 147 tll» 
App. 646.) 

Bartley was denied a hearing on his objections to the fees 



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-7- 

allowed the receiver and hia attorney, and such fees were approTod 
BOlely on the chancellor's personal recollection and knov/ladge of 
the seryioes rendered and his consideration of the recelrer's re- 
ports. It is true that the receiver's several reports included 
statements of his receipts and dishurseiuents and a general state- 
ment of services rendered by him and his attorney was made in the 
reports wherein an alloTranoe of fees was prayed > but the reeord 
does not disclose any itemization of the time devoted to the re«- 
celvership or the character of work performed by either the re- 
ceiver or his attorney* 

We have carefully examined all the oases cited and many 
others > and while the rule is established in this state that an 
allowance of fees to a receiver and liis attorneyt based wholly 
or in part on the personal knowledge of the chancellor, will not 
be disturbed unless it is unreasonable and axoessive or exhibit* 
a manifest abuse of disorotion by ths trial court, the rule is 
also firmly established that a party in interest, who interposes 
timely objections to the allowance of fees alleged to be grossly 
excessive, is entitled to a hearing on same* ouoh a hearing was 
denied in this case* 

But, regardless of all other issueB, Bartley insists that 
the paramount question presented for our determination is* Bid the 
trial court abuse its discretion luider all the circumstances of 
this cat e when it allowed the receiver and his attorney fees 
aggregating 20^ of the gross rents collected by the receiver? 

That the question of fees in this case M^as decided by the 
chancellor solely upon his onn personal recollection and knowledge, 
that defend^Mit Bartley was denied a hearing on his timely objections 
to fees theretofore allowed and eidditional fees prayed for, and that 
the receiver did not and was not compelled to submit proof as to the 
e2:tent and nature of the services performed by him and his solicitor 



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are all oircuuetanoes whlehi considered with the disproportion- 
ateneee of the amount of fees allowed to the gross income tram. 
the propertyf sire indicatire of cm abuse of dlsoretion by the 
trial court* 

l^ile no means are afforded this court for an intelligent 
and equitable determination of the compensation that should be 
allowed the reoeirer and his solicitort inasmuch as there is 
nothing in the record to show either the character of the i»ork 
performed or the time devoted to it» it does seem to us that the 
allowance of fees of 20^ of the gross rents collected is exoessiTe* 

The Interests of all concerned » in our opinion^ will be 
best semred by a full and fair hearing in the trial courts ^here 
the receiver should be required to furnish proof of the extent 
and nature of the services rendered by him and his solicitor^ 
the ohanoellor then to order just and reasonable compensation 
after due consideration of all proper elements » including the 
amount of the gross rent collections by the receiver* 

For the reasons indicated the order of the Superior court 
of March 1, 1935 » is reversed and the cause remanded with direc- 
tions to grant a hearing on deferwiant Bartley* s objections to 
allowances of fees made under the several reports of the receiver^ 
Corkellf and for such other proceedings as are not inconsistent 
with the views herein expressed* 

B2nniES13D AMD RSKAjmSD V/ITH DIR=2CTI0irS» 
Soanlanf P* J«» and Friend* J*> concur* 



38474 



KELBigRT W. LOHCH, 



%lb''^ '•^ Z^iW.j 





STATS injTUAL LIFE ASSTJRJvSCS 
COJtPAMt a corporation^ 

Appellant » 



HARRT S. LORCH» 



AppolleOi 



APPSAL moU CIRCUIT 
COURT, COCK COUm'Y. 



285 I.A. 595 



y 



MB. JUSTI08 SULUVAir DELlYmniB THB OPIITIOH OP THE COURT. 

By this appeal raepondent. State liutual Life Assuranoe 
Company ef orceeter, MaseachusettB, seeke to reverse the judgment 
of the circuit court entered after a trial de noY p without a ivajf 
affirming an order appealed from the prohate court which granted 
letters of administration to Harry S« Lorch, petitioner, upon 
the preiumed death of hie brother Melhert V, Lorch, 

The petition of Harry S« Lorch, filed ia the probate court 
January 9, 1934, under sees. 20 and 20A of the Administration of 
Setatee act (Cahill's 1933 111. Rev. State., ch. 3, pars. 20 and 
21) alleged substantially that he was a resident of Illinois | that 
oa or about October 3, 1926, Melbert W. Lorch, a resident of 
Chicago, disappeared from his home, has not been heard of or txtm 
since, and is presumed to be deadf that upon due and diligent 
search and inquiry, his place of residence cannot be asoertalaed 
and that hie last known place of residence was 4914 Drexel boulevard, 
Chicago? that Melbert W. Lorch left no last will and testamenti that 
he left a personal estate not to exceed ^11,000 in life insurance 



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-8- 

oarri«d by hia irith certain dealgnated life ineuranoe conp&nleSf 
including the New HIngland Mutual Life Insurance Company» The 
Squitaljle Life Assuxfinee Society of the United States and th« 
appellant in this cause) that Melltert W« Lorch left hia surTlrinc 
as his only heirs at law and next of kin» Harry S* Lorchp a 1»r4th«r» 
and ilma B» Morrisf a sister | and prayed for the issuance of 
letters of administration to the petitioner* 

Say 22 » 1954 i the probate court) after a hearing^ entered 
an order as of May 19 > 1954 » granting letters of administration to 
Harry S, Lorch in the estate of Melbert W. Loroh» based on the 
presumed death ef the latter. Separate appeals to the oirouit 
court were perfected froa this order by the appellant and the 
ether two respondent insurance companies heretofore mentioned* 
Althotxgh not consolidated f all three appeals were tried together 
in the oirouit court and similar judgments entered in the three 
oases* Separate appeals were taken from the judgments of the 
circuit court and this appeal has been consolidated for hearing 
in this court with ease No* 33433} the appeal of the Hew UiUgland 
Mutual Life Insurance Company* 

The undisputed facts essential to the determination of 
the issues InYOlred are that Helbert W* Loroh was thirty- three 
years old at the time of his disappearance OctobPr 3» 1926» and 
a bachelor; that he had theretofore been a normally healthy and 
happy young man; that he was an onion broker on a large scale 
and president of H* ^* • Lereh» Inc., 1421-1426 3olon street^ Ohicagoi 
that he enjoyed a good reputation in his trade and was regarded as 
a "square shooter f" that he had maintained a home for his mother 
for ten years and at the time of his disappearance resided with her 
at 4914 Drexel boulerard ; that in the latter part of September and 
the early part of Octobert 1926 > his company was heavily Indebted 



to *5">n.piff.£-. r -'x:i Tol Dov^';:c- ^^<■ t'^if^xa B tailtc^ ^S ^B;Xi bPQ 

&rf3 Co b83«tf «£loT0J .W ^terfl&'S ^ ®#fi*a© siitf Ki iJTO-i . x-'^^'^H 

,hBa9tin%tB. *tolo;}3T»if eaifl^^teftt) dOiae«L"sf?i ^n»fenoqa»i o«r* Tsri;to 

estild .•tsfflt^hut xsXiai- f<i 

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xaiiioA 8iil zot Muod m t>t*attuttiism bad •d #i3ii;} "It^ioorfa sia&Pei" js 
^l»d lU^ir . eoci^1«&cl(i«a2b aiil to ©aj-i 9d* $a bflw a^fl®\: «ed tot 

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-3« 

to other merchants and to baake; that on Saturday Ootoher 2, 
1926 > he went hy train from Chicago to Cincinnati > Ohio» for th« 
purpose of raising money to enalile his firm to continue its busi- 
ness operations! that iVLfred Jacob80n» an employee of the Lorch 
Companyt adranced him sufficient funds to make the Cincinnati 
trip and drore him to the railroad station in an auto owned by 
the company f retaining the car for his personal use; that Loreh 
telephoned Jacobson Sunday morning October 3* 1926» from Cincinnati* 
and told him that he ^vas returning to Chicago that day on the day 
train* requesting that the auto be left for him at a designated 
garage on the south side; that he usually remained in Chicago* 
transacting business from his off ioe> and that such trips out of 
town as he did make were nerer for more than a day or two; that he 
returned to Chicago* October 5* 1926* and secured the car from the 
garage where Jacobson had left it; that sometime after his return 
he went to his office and wrote reoonsignment orders on certain 
cars 01 onions in transit and left his valuables* including a dia- 
mond stick pin* a diamond ring and a diamond watch* together with 
eertain insurance policies* on his deski and that no irregularities 
were found in the business of the Loreh Company* of whieh he was the 
head* and no shortage of that company's funds was discorered* 

It further appeared that on Monday morning October 4* 1926* 
the auto heretofore referred to was found by the polloe at the foot 
of uinoy street and the Chicago rirer with its starter broken and 
Melbert W* Loreh* a hat* topcoat* trareling bag containing the wearing 
apparel he had taken with him on his trip to Cincinnati, and a six 
or seven foot length of window sash oord on the rear seat of the auto} 
that a letter to "Speed** (a nickname of one Milton C* Coggins* a 
business associate of Lorch) was found on the front seat of the oar 
next to the driver's e*at| that on the same morning Jacobson found 
Lorch* s jewelry and the insuranoe policies on the desk in Loroh's 



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■■■in ttititiai9ttl0 oi qlrt mii no «.. ^ ®jr( X»rr«qqja 

%iuu Mf^ 1t« ^«»s rt«c« eafi ft. .*.*ii8 vsfojbcir lo Hip/i^^X i ot ceres lo 

i\o »tii \o imta inoi'i ztAa no bouo'. a^w (iloiv. -zloo-.e- 3?. •orilaiicf 



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-4- 

priTat« ol'l*loe:| thai; Jacobson also found tlxe telegraph orders 
written by Loroh, apparently oa Sunday nl^jht, addressed to Yarlous 
railroads » rticonslgnlng cars of onions to different peopls to whoa 
tlia Lorch Company owed money; that the police dragged the rirer at 
the foot of v^uinoy street en Monday* ootober 4t 1926» the day that 
the oar was diBC0Tered» but did not find the body of Loroh; that 
Tuesday, Ootober 5* 1926» thiee notes in Melbert w* Lorch* s hand*- 
vriuing on atationery of M« ^' . Lorehf Inc., one addressed to Harry 
Loroh, one to his mother an<i one to a Mr. agner of the Gowmerae 
Trust and Sarings Bank, were turned orer to the petitioner; that 
thede notes ^ere found under the front seat of the auto at the 
garage where Jacobsos haS taken it to hare the started repaired; 
that Harry 8. Loroh employed a direr vrho searched the rirer bottom 
all daiy Wednesday, October 6, 1926» for a blook or more in each 
direction from tiuines'- etreet, but did not find the body; that no 
further searoh was MRde for the body In the rirer; that Harry S* 
Lorch made inquiries of the pelioe as to -where^the body could go;* 
that he directed then to notify the lock-Jceeper at Lockport, IllinolSf 
to be on the lookout for the body of his brother; that the body did 
aot turn up there and has nerer beeii round; that the police sent out 
a teletype message containing a description of Juoroh; that Harry 
Lorch for about two years after his brother* s disappearance made 
persistent in^^uiries among mntual friends and buulness assoeiatet 
of his brother, both in Chicago and other parts of the country v/here 
his trarele took him, in an endearor to ascertain hie whereabouts, 
wi he thereafter made such inquiries when and whererer he thought 
they would be of any avail; that in frequent talks with his mother 
she adrised him that she had heard nothixig from or of Melbert; that 
/'lima Vorrisy Melbert W» Loroh* s sister, made frequent inquirlei 
among friends, relatires and business assooiateB as to whether er 



ET- ^*?0 



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Iv. 

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'■. -^-cjcojat axexlr ©s^stss 
bifliiostib erf ^.siii 

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OH 

: Jpfiadnoo d^sseirf" •Q'cJsXs* Ai 

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-loo^a^ «fe40i:;^au£i bxs;. j&vi».riiii tdiijaiii ^fiOJBfi 



•1- 

not any of tbea knew of the whereabouts of her brother* and they 
all gare her negatlTO answers; that her mother, up to the time ef 
her death, adrlsed her that she had heard nothing froa or of 
Melhert; and that neither Harry S. Lorekg ^llaa Morris nor Alfred 
Jacohsoa had seen or heard of Mellbert W* Loroh since his dis- 
appearance, and haTe net seen or heard of anybody else who had* 

The IllfOOO life insurance of Melbert W* Lorch was payable 
to hie mother, Ella Lorch, as beneficiary* She died Becemher 24* 
1931, and it appears that she paid the premiums on this inBuranoe 
imtil the time of her death* Uelhert "^ • Lorch also earried 1100,000 
insurance on his life payable to M* w* Loroh, Inc* rhis company was 
adjudged bankrupt a few days after Loroh* s disappearcusioe* 

following are the four letters or notes whioh Uelhert w* 

Loroh left in the automobile! 

"Speed I 

Goodbye - old koy - I know you will understand* 

Lovingly, 
tfel*" 

"Dear Harry i 

Please hare no funeral - Just the Hahhi, you and Que -«« 
That*e my last request and plea.se stick to it* 

There are all the insurance policies except one > on ay 
desk - that one is in the N Y Life for <|1000 and beliere Hotter 
has it* 'These I hare here amount to IllOOC in mother's faror* 

The policies in the corp are also there* Thsy can 
eolleet on |70,000 and a refund of premium on the one $30,000 
that is less than a year old* 

Mel** 

"Mother Sarlingi 

Please forgive what I am doing and do not griere over me* 
I am going happily because it is the only honorable thing to do - 
I simply cannot let those who have had confidence in me lose by 
it and there's no other way out* 

Your lore and thoiightfulnese hare filled my life to the 
uttermost and after I hare gone please bear up and remember you 
hare two wonderful youngsters in Hermine A Junior to take my 
place* 

A last big kiss and all my lore* 

Mel*" 

"Xr* Wagner I 

Sorry to do this but there is no other way to keep you 
and my other friends from losing money - and since it vrais through 
your confidence in me - no step is too great to aroid abusing you* 

The insurance money with our other assets sheuld corer 



r 



•£ir«^q s«ir ifoitJ: .* ;?i»dX»i£ to 0wi«tiiy®fll 0li:X 000-|XJ|| ©ri 
.or.s'W9tik nMi rxo affuaiaioTij Oil* feiaft ©da «....^ ,...,;..; j, -- .-... -t-^.y^ 



• oixA^srt^tMu; 



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everything - LlndstroM our auditor can glre you the figuras 
on drafts dus» outstanding a/c pay* and our various inrest- 
ments* 

v/leh I oould put into words ny gratitude for your 
many kindnesses and my regret that this step is necessary to 
do what is right* 

Sinoerelyt 
Mel." 

The respondent inauramce oompany ooateads that the evi- 
denoo fails to eatahlish i;hat the diaappoaranoe and abaenoe of 
Melbert W. Loroh are unexplained » fails to establish that due and 
diligent searoh and inquiry have heen aade for him since his dis- 
appearanoe and fails to ostablish that Melhert W. Loroh is actually 
dead* or» as a matter of law* legally presumed to he dead* 

The petitioner's theory is that the eridenoo establishes 
that Helhert W. Lorch disappeared on or about October 3» 1926> 
froB his home la Chicago) that he has net returned therato since 
that date J that due and diligent searoh and inquiry hare been made 
to ascertain hie whereabouts* but without avail; that,* inasauoh ae 
his absence is unexplained and has continued for a period of nere 
thaA seven years* under the law Melbert W. Loreh is presumed to be 
dead! and that the circuit court properly affirmed the order of the 
probate (Tourt granting letters of administration to the petitioner 
in the estate of Melbert !• Loroh based upon his presumed death* 

Harry S* Loroh and his sister testified that it was their 
firm oonviotioa that their brother Melbert had committed suicide* 
However, beesuse his body was not discovered* it was impossible to 
prove his actual death. It la insisted by the respondent that all 
the circumstances Burrounding the disappearance of Lorch, including 
the financial difficulties of his firm* the abandoned automobile 
containing the letters or notes and his effects, the failtrre to find 
the body and the large amoimt of insursuice carried by him, are fairly 
and reaaonably consistent with its theory that he voluntarily wemt 
into hiding to perpetrate a sulolde hoax for the purpose of defrauding 



t^tar^kt fi£i ac% ©via ««> f©iii«*3 - itsve 



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ulgix 9£ iiitlvr Ob 



-sib aid foonxe ffiirf lol si)£aii n&sc! evBi^ ■^C^iif i, i- iifi^ lioiesa jaogiXlb 
• b«e£i »cf 0? b»J0O8Stf '^XXiiseX ,»r-H iSnsi b as «^o ,&«»A 

soi. benisr- ■ ;■ •- -aori alrf morel 

dYOM to boi':r -If :,-fTi-.-- T'-v..- .rtsada aid 

•xi»nv' ii-^e Ji wBiid beiliase* taJaia a-L^i mijs iiy- . .,£i£ii 
• efeiojtDe to^tlflHoo baM iaooflc^i ^»i£d©'i«j xi^du i«ai- K4^i4©irft«o anil 
odT cXcf2:-aoqi!r ' t , ".yovfoH 

Bffi t>t;X»ci . O0AA7fiftqqaaib bat'O'iaws 3««rtt»*ai 

•XlcfOKTodii/t t/6iiobn8tr« •«!* «anxt air Laioruinil •li^ 

*«j rl* tsiasH^ aijf hiia ••tfon to 8"».>i«I eric* :&«l0i,s*flroo 

tX"*^' ' to^ri \:<^ &ftiit.'ac eofiirtu/eci: "io imsoaxs st^ijp.L edi has x^otf &di 



-7- 

the Insurance eompanlee. It Ib further Insisted that the facta 
and oirouastanoes In eTidence offer a sufflolent and satisfactory 
explanation for both the disappearance and the continued absence 
•f Loreh* The eTldenee does offer an explanation for hie di«- 
appearanoot hut instead of reasonahly accounting for his continued 
abseneOf we think » rather » that> coupled V7ith his failure to return 
home and his failure to eocuiAmicate with those with whoa ha \70uld 
naturally oomirsunioato. If alive, it indicates a strong possibility 
of suicide* 

All the olrcuBStanoes connected with the disappearance of 
Lorch were admiselble as ccaapetent evidence under the petition of 
Earry S* Lorehf whioh was predicated upon the theory of the presuned 
death of his brother, even though they tended to show suicide. Loroh 
was a normal, healthy and apparently hai>py young B»n* He was on 
affectionate terms with the meittbers of his family. He lived with 
and maintained a home for his mother, to whom he was devoted* There 
is no evidence in the record of irregularity or dishonesty in his 
dealings with his own firm or others* H@ enjoyed an excellent repu- 
tation in his business relations* Respondent's argument that it may 
reasonably be inferred from the evidence that Loroh r«igned suicide, 
went into hiding and continuously absented himself from his home 
and the members of his family up to the present time, successfully 
obliterating all traee of his whereabouts, to permit his relatives 
and his firm to eolleet his insurance, is not convincing* The insur- 
anee, of whioh his mother was the beneficiary, was hardly sufficient 
to oompensftte Lorch for any such voluntary exile, evte though, if 

and when collected, the same should be surreptitiously turned over 
t« him, and the insursmoe payable to his firm oould have furnishad 
no inducement for his continued absence, because in no event would 
it inure to his individual benefit* 

There is ample evidenoe in the record to show that sineo 






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blss9>r ori ssciffw i£;flw eaoii;^ d^lir eiaoinitot: 






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,»i>idlJU8 teojiidll dor ^ tXtfsiioe.£»0i 

eoioxi alii «0'i\ "iXe^aiairi hsfrineeef?; \;Xaiio«r rtfe-.j^nlfciii 03 kI ir.av/ 

XXXu'^Bvaoou^ ;afi«6Y( Jraosi »di btus 

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the dieappearsuioe of Melbert W. Lor eh October 3» 1926 » due and 
diligent search and Inquiry hare been made to ascertain his 
whereabouts and that ho has not returned to hie home since that 

time. In our opinion i even though hie disappearance is explained » 
that fact does aot orereome the preeunption of his death after his 
continued and unexplained absence for seven years* 

The major question presented here was before this court in 
the comparatirely recent cases of Pier sol t. Massachusetts I3ut\ml_ 
Life Ins* Co., 260 111. App, 573 | Mue ller v. Han c ock Mutual Life 
Ins. Co. , 280 111. App. 519; and Forster t. Hancoc k Mu tua l Life Ins. 
Co.« (Appellate court case ilo. 38158 - opinion not published.) Ia 
^^^ ^ioyeol case the assured* s aoooiuits were being audited before 
he disappeared and a shortage vas thereafter discoTered» resulting 
in an indictiaent charging him vith the embezzlement of $lt742.40. 
In the Mueller case the assured worked for the insiirance company 
which was the defendant therein and wrote a letter to his wife 
the day after hie disappearance admitting that he was ''about $200 
short on my book." In the fforster case there was hearsay evidence 
that the assured shot another man in a saloon; that this man there* 
after died as a result of the bullet \?ound; and that In connection 
with the shooting a police officer secured a warrant for the arrest 
of TB^rster* who disappeared and remained away. It will Ike noted 
that the reason for the disappearance in each of these cases waa 
far more compelling than in the instant oese. Yet, it ^'?as held 
tha&y while the circumstances may hare reasonably explained why the 
a&sured in the respective cases left his home» they did not afford 
sufficient explanation of his continued absence to rebut the 

presumption of his death* 

After discussing and distinguishing many decisions of the 
courts of review of this state on the question, in giersol v. 
Maosnchusetts Mutual Life Ins* Co., supra, the court held, p. 587: 



bur, »ff^ td<;ri J*; ♦'•cfc.+oO disnoj: . */ ^-^ ^ fOfy.pT09qc.aa lb &xlJ 



: wXijBbno" liw xioixlw 

^aSTI/i 9di tot Oi ;:: /crOrlri ^iiJ :iJlw 

bn^fOf s-cT XJ.J , , 

♦i3i?««t) Bid to nolwQB«a»rtq; 

tttOii ^iOU^i 6Xi.7 ^0 Ci^YITOt) 



-9- 

"An exaaination of the casee indicates that the pre- 
requisites which >^ould justify a presumption of death are (l) 
that the person whose death is in question has disappeared froa 
his last known abode* domioile or residence) (2) that he has 
neither returned thereto nor ooBuounicated with these with whoB 
he -would naturally communicate if alive; (3) that inquiry taaa 
been made at the last known place of abode of the persons who 
would aatur.illy hear from him without obtaining information 
indicating that he is alire* Out of proof of such material 
facts a presumption of death arises as a matter of law, but 
it is a rebuttable presumption whioh may be disproved by evidenott 
of facte tending to show that i.he pa/ ty presumed to be dead it 
alive* See Jones» Commentaries on SridencOf 2nd ed»t vol* 1» 
sees. 285-2941 3 H. C. L«t PP* 703* 709, and see page 714." 

In our opinion there is no inconsistency between the fact 
that the evidence points to the intention of Lorch to commit suloido 
and the legal presumption of his death from his disappearance and 
unexplained absence for more than seven years. 

In 17 C. J,, par. 7, p. 1169, after citing nuaarous authori- 
ties of this and other jurisdictions, it is said: 

"The presumption of death from seven years absence does 
not preclude an inference that death may have occurred before 
the expiration of such period* * * * There are some cases, however, 
in which it Is said that there is no presumption of death until 
the lapse of seven years, but as there were no circumstances in 
these cases tending to show that deeth may have occurred at an 
earlier period, they probably merely intended to hold that, 
ordinarily, no presumption of death arises until the lapse of the 
prescribed period and not to contradict the established doctrine 
that inference of an earlier date may be draT.n where the circum- 
stances are such as to justify it*" 

Henry Blech, one of the attorneys for the petitioner, was 
also the attorney for Melbert W. Loreh in his lifetime* It appeared 
that on October 1, 1926, Blech prepared and acknowledged a power of 
attorney for said Melbert W* Lorch* He was called as a witness by 
respondent, and after identifying the power of attorney and testifying 
ae to its execution by Lorch and acknowledgment by him stated that 
aft r the lapse of nine years he was unable to recollect the cir- 
cumstances under whioh the document was executed* During the course 
of his examination the witness was asked by counsel for respondent 
to relate his conversation with Lorch at the tiae the power of attorney 
was drawn. Blech objected to answering on the ground that such con- 
Torsation between attorney and client was privileged. The trial 



.0> 






er. 



J op: 
••aebi ail $1 

»I .Xov ««6» 3d ♦sriXa 

ban »oas'Xae4-^.&;>i.:a ciu uoat doB-i^ uiiL lo noi^qBuaeii^ IsBaX siU ban 
• exss'^ naves riflM* sioa tot »©n«sd« h«ni:Blc{X9i!JJ 
-/rrorfvU" aiiOT.ooron ^flit^to t9#'k« t§'- • -'Q « ♦ '. . 

xbt^ i p. ao til oiiask^uiif i»dSo bnj-- o B^ii 

e. »ilT" 

■1 hir T'i' ^rf :>ois 



1© xmroQ a besosIwoirioB feu* bexjwjsaq rioelP. ,asei tX taifo^oO i» #J«0 
^ 8«9ii41w ii a« teXI 3«rXoiI hlaa rzol %9i»o^tf« 

X«iti -flv/ iiiel-fo tofi x^^t^oiisi a&«(vd»«r aoiiaaaer 



T1U» •<nit«nlta« ia aji«i»«r»« in , «<w^t | v« ifarrltj 113 Til* 

44t« « •«•« tfttM liy r«fi9«w^ wn% • w)»«r« tbe cimrt BAld at p« 4t4i 

*Xr» Aaojr w^s tlM MtoriMj «( Iaw tmA l«c»l «<tYiMir of 
Jfi09b Harris la hia llf«iil««t *ail all tkat «a« »«*14 »• klM Iqr 
Karri* in r«far4 i« Mm «x<u!«utian •/ %Jm 4e«4»t aw! kUs latcation 
in tteat r«sp4Mt» «ua im1<I tr«i aim ia tlMit ••j^Mii/* Mr* ^Mugr* ki«- 
•«Xf» 0^4 ««%^ i« %9»%XlTimfi t« tluma d««lA«nti«a«* tiM %k» t«m««3L 
f»r liaefewl Atin Barrlit al«« okJ«et«4 tlMir«t«» us»oa IJmi grmtmi tkmt 
%lMgr w«r« priTiltt«*« o«w«iiii9nti«Hi« Ttwi «]bsaia«lX«r ««dKitt«4 11m 
«Tldli«««t 0^4*"^ ^* <^1m t^J^atiMM* IS amrrtm yimrm iiiiwi«lf «IiTa» 
liit«rpesli^S %h9 9^im9titm» eennii^l for oottplaln&nt.'f e»««Mid« tlHi 
evl^cnvft «9Ul4 b« lMMlail«di)il«» )o>ut UMjr coai«ad £.iui.( IttaaaiMli a« 
iMi is ioMt and thii inquiry is niw^ksr t« M(e«ri{i.iB« as bstwMn %hm 
l«i^t»4» iiad4t kia vlXl %»i vlti} er'Uit«« elx^liKUig vioa^r )&is d««A«t 
»Jtet 1» iAt«a4«4 liy Ms 4««4»> thu ruX« /or oxoladiair tJM ?Ti4< 
d9«a not ftPi^* ?kia ^vition im^ 4upj;>or; ia ^aioooll ▼• Jaoko« 

JMl* righto wM tatoJ^oots of eIi<Bi »fl« a ad %fc o<» eXj^&Uilag uadur U> om^ 

jpli titlrji , iJJMrsowo.t 0^ in e«igX^.»»|I7^M ygivi^fiw'' i» aoi r'-.*«rrii_. 
& tto oXi»«t*» <^«»,»iM. 1» »*•• ofioiiU«witanr liispo8itloii» liM 
rolo oooMi to bo otMmioo** (Itolios o«ro«) 

toroli loft no will «ad it voulO oppORr freoi thm itallolso4 

portion of ilM l8y«6tta«o of tlM j^^ootfioit opiaiot tlui%« of tor k&a 

proMiiMd #ootli» tte **riclito oai iatitrtfato" of potltl^iop and hio 

eiotoyt olaimiaiE aador ^s* boio« la coaflioi vith thoao of tiMi 

of attorney 
thktd forsoa rvctpoatfORtt tlw pririlo^o ^ttondoat apoa tho rolotioay 

MKl «li*«t «ao tlMTofOYO "not row)V«4 by %hm olioat's 4o»tli»* 

Attthoritioo aro oiioi by roopoadoat to tlM offoet UMt at«toamto 

■ft4o Igr a tfoooaootf olioat to IdLo attoraoy aa to Mo roaooao for 

oMitiag a li^^ laatraaoat draftod «?o aot priviioflo4 ooMamlofttiaao* 

It io o«ao«<otf UMt tkio is tiio ralo* but tbo liuostioa askod tbo wl%- 

aooo oao aat rootriot^ to aaoh otatoMoato aai tiM ali4«ot&oa oao 

proparly oaotaiaotf* 

PlaiatiffU aatfiapMt«d ori^oaao ao to tte aatorittl faoto 

imp Miplo 10 fsiTo rlao to tho proMo^ption of doatk oo a »at»«r of 

laVf oad iaa«autli as %h» rsoori tflsoleooo ao ori4snoo tbat ^Xbort 

Wt Lorob is allTO tbo trial ooiirt propsrly affiraotf tbn orilor of 

tbo probats coart grsatiac lotioro af aiiaiaistratioa ta Mmrr;^ S« 









"^ ■■''■■■ ""'■ . ■-- ,.-- -w- • «r jt«fl^j iMifeHMimw «i #1 

' '«lli taw tWAll 



-11- 

Lorch in the estate of hl8 brother Melbert "n , Lorch. 

Other points have "been urged and conaiderod, but in the 
viev; we take of this cause we deem it unnaceasary to discuss than* 

Jot the r en sons indicated the judgment of the circuit 
court is affirmed t 

A77IBMikJQ* 

3eanlan» P* J** and >'riendt J*t conour* 



SMtT 



In th« Kfttt«r of the S«t*t« of 

iua.ixsy V, LOACH. 



THX lifi^UZTABLX LIV3E A&W^lUMQJt 

SOCIETY Qi tax aHiti£B iSTAXsa, 

App^XluAt, 



MAWSX 8* lAiR&SL, 




i AJi»: 



PEAL ^fiOa CIItGU2¥ 
fiOOI. COUiiTY, 




! 285I.A.596 



jui. JusTicx ;^u.ivAii najmnuKD xiii; oFXjixeii ojr ns goiiiit. 

Bjr thtt ftpp»«l r««t>on4«nt» Bquit&bX* hifn AsBursne* Sveifttj 
• f thtt Unittd 3t«it*«, ••$k« to r«Y«rac th« JudtfttttRt •}' Ui« Clrouit 
«ettrt, «nt«r«4 iift«r « trlftl igjs nciyp vitiiout « Jury* Affirmittg an 
or4«r Apr>«al«»d fron th« Pri»^%« oourt, waiob grantad i««>tt«r« af 
▲dttinlatration te Marry £». I*»ri^, patiltiafiAr, ui^n tha pr^auaaA 
daath af hia toratitar, MaXfei«rt v. jUQirah. 

Iha o|»inlon In a»a« ho, 3d474 Is f U»4 «aii«irr<mtly with 
thla ODlfiion. Hia f«kata in thi» chiM9 ar« i4antio»X wltn tha f«ota 
in aaaa he, 3d474. 7h« judi^«»i rauderaA )>alatr 1a tli^at «:aaa trat tha 
•aMa a« la thla sM4i tha anBM quaitidna ara praaaetad I'or rarlav. Ur 
Aaalalan in that eaaa (4iffiy.flft y,,8^j^|tL>M^Ha^ M^^ AffHgft^flf VQ'^-»fltfly) 
aontraXa tia <iuaatlena pr«a«iited lBL%Tm, a&4 far tha raaaona thara 
atatad tha ju^j^aet af tha Ulreuit court in thla eauva aiflrwlac 
\h*i arder af tha Frab«te court urantliig Lettera af Adftilnlatratloa 
ta ttarry S* her^ la tha <iatata af hia Itrathar, italhart «. Laroh. 
la affimad. 



Aaaalan, P, J., aofl fri#a4, J,, coaaar* 



ffti 



:::m%. ■xA'^r^ 






965 .A.I 



o 



.SUiivivi .ir, tmuM 



at. 



r^'UcV, 7'rt'r ^:^ ;uii.:Tv:. 



:...Uu?i zf^iTsut .aji 



19 «»*hr»i *io'l i»4»laji»*t4 »'(« an^ijFiiau^ «!««:« futs^j' ^n^ «Jtili al urn wum 

HiWMi tfaniwiA f\ii tiriinrh rf^rt iT onnffi't •««« ^«iij at ooititvft 

.S^Mnrilla •! 
.CttUXVU 



>«iw««o ,.l ,iba»itt |>iA» 



,<i 



SS4M 

In ih« ttAt%«r of th« X^t«t« of 




Q&tirAMt, A Cornoratlen, .'''' ) jt s j 




▼. 



HAIUnC »• U&HQkt 



.y 



ixmi couinf* 



Af>p«a«#. ) 28 5 I, A. 596 



2^ 



im, Juarxos mnj^xvAK im.x^r.iiiB mis o]»uxos o» tm cmnt. 



By Uiia ftpp#«kl reft|^on<l«nt, lt«« JS«gl«»&4 Mutual julf« insur- 

Gireult ttoart, «jn%ttr«4 ift^fttr » tritUi Jj( n,pif p. vittiout « Jury, *f* 
ftxmlag an erAmr appfl)&l«4 !>«« t^m Frofeot<9 Gourt, «hieh grMatttf 
li«tt«r« of Admin 1 at rttt ion t« Mur^y 8. h^rmh^ p«tititm«tr, up«n tli« 
^rmmmm4 <!«»%)% of kto ^rethos', MoXbert W. hereh, 

fhlo CJSiuiio vm» e<»isoii4»t«d for h«suri&§: in thio ooiurt vltii 
««ilo lEo. 9d474. £h« opinion in c%so £>o. 33474 is fiIo4 ooaour- 
roatly vitli this opir>loii* fho f met* In thin oao« are Idotitieal 
with tint f»oto Ifi e»o« ^o. 38474. thm i^idjmmit r«n<lor«4 bolow in 
thot «as« wfto tho ooflMi »s 1» this «n<l Ihe oooo ^ueotio«« »ro prm^ 
•oato4 for r«vl«w. Qut d««i»i0ia In tfeat o*fto {i.oyrti t„ ^\f^^^ ^M^ffltii 
lutfo .Aoo ttronoo «»o^p<irty) oontrolo tho ^tuootlono pr48»«Jito« horo, obA 
for tlio r««oono tner« etatod tho judi^oni of tlio Uirouit eotiri in 
thin oaoito nffiming; th« erdor of tJ^o j^rol»«to eourt grar^tlAg i.oit«r« 
•f i4»lniotr*fcion to Horry s. X>ore)i 1» t^« 0»tAt« of hio Orethor, 
kol^ort V. itoroh, io offinsod. 

Aim mas. 



ftoonlan, IF, J., omtf 7rl«nd, J., eonour. 



■■■o *isti^M 9tii 1^ tt>tiM% till at 



"aes.A.isss ' 









^i 



.t 



,.1 ,kll»l«Kt »ll» .rutoMA 



AT A TERM OF THE APPZL^TE COURT, 





Begun and helcL at Ottawa, en Tuesday, the fourth day of February, 
in the year of our Lord one thousand nine hundred and thirty- 
six, within and fcr the Second District of the State of Illinois 



Present — The Hon. BLAIME HUFFMAri, Presiding Justice. 
Hon. FRAMCLIN R. DOVE, Justice. 
Hon. FRED G. WOLFE, Justice. 

JUSTUS, L. JOHNSON, Clerk. 28 5 T A ^ 
RALPH H. DESPER, Sheriff. 



BE IT REMEMBERED, that afterwards, to-wit: On 
ArK 13 1936 the opinion of the Court was filed in the 
Clerk's office of said Court, in the words and figures 
following, to-A¥it; 



GEN. NO. 8972. AGENDA NO. 35. 

IN THE APPELLATE COURT OF ILLINOIS 
SECOITO DISTRICT 
FEBRUARY TEMJ, A.D. 193.6. 

IK THE MATTER OF THE LAST WILI. AND 
TSSTMIENT OF JAIvlSS LARKINS, deceased. 

CITY TRUST AND SAYINGS BAIHC, as 
::::xecutor of tlie Last V/ill and Testa- 
ment of James Larkins, deceased, 

Appellant, APPEAL FROM CIRCUIT COURT 

KilNKAKEI] COUNTY. 
vs. 

NOLIA EYRICH, et. al., 

Appellees, 

HUFFLIAN - P. J. 

This is an appeal from an order of the court entered upon 
objections filed to appellant's final report, with respect to claim 
made for Executor's fees and attorney's fees. The appellant was 
named as executor of the estate of James Larkins, deceased, in his 
last will and testament. It accepted the tr\ist and acfeed as such 
executor. On July 19, 1934, appellant filed its final report as 
such executor in the probate court of Kankakee County. The report 
contained an item of s?7000 as a charge to be allowed for executor's 
fees and attorney's fees. Objection was filed to the report in 
this respect and the probate Judge being diso^ualified to hear the 
case, the matter was heard by the circuit court of said county. The 
court found that the sum of $3000 was a fair and reasonable amount 
to be allowed and paid to appellant in full for its fees and com- 

-1- 



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niti ai ,6eeBonef) jSiii^fiBj asisrst lo evtstp.s erfi- lo loJ-uosxa bq bessisn 

dOisz a« 6o<rofl fins isisi& edt be;^qeoc . .irLoiminai bn& IlJtw J-aBl 

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ttoct^i sriT .Y^-flucO 8S3lfl2lnBX lo *ii;oo ©rf-scfoig o^* ni i:o;txjo©xo tLpusi 

a'iotuc9xe lot ijewolls &<f ot &8%-;rfo e a/3 OOOVv to ma^fj: hb ftenxBi^iioo 

nl iioqsi QiU ct bslil; aew noltoetcro .aesl ? 'YenioJi-a f>jia aael: 

eil^r i&exi o& bemisispetb gnistf egJbi/i; eJacfo^tg add- JbaB J-odgaso: a.i4J 

8ffT ,x*aif oo blBz \o t-woc -tluoaxo sdd- y^ ftiBeri aew io^TJbjh axW" ,»iU3a 

*nx;oaiB ©IrfsxtoaBoi 5nB ixbI b sst OOOS^ lo mue sxl.i *Brfa ^nwol 4iuoo 

-ffloo 6nB 3©el BJi lot I.fj/1 njt .^nBlIeqga o* bin- bns bowoXIa erf o;t 



missions as executor, including attorney's fees. Appellees filed 
objections other than those directed toward the .)7000 item. All sex 
of the objections filed were overruled except as to the above item of 
executorfe and attorney's fees. The appellant has prosecuted its 
appeal from the order of the court made with reference thereto. Ap- 
pellees assign cross errors as to the objections overruled. 

Sec. 133 of the Administration Act provides for compensation 
to executors and administrators. Costs and expenses of the character 
involved herein are incident to the administration of an estate, and 
usually included in the credit allov/ed the administrator or executor 
for such administration. In re: Estate of Thurber, 311 111. 211; 
Sprinkle v, Forrester, 162 111. App. 45;, Mercy Hospital v. Wright, 
Executor, 213 111. App. 634. It is customary for the administrator 
or executor of an estate to employ such counsel as is reasonably nec- 
essary to bring about a proper administration of the estate and to 
wind up the business thereof. The law intends that reasonable fees 
shall be allowed for such services, to be paid from the funds of 
the estate. 

There was approximately |70,000 of personal property administered 
upon. While a proper amount for such items of costs of administration 
is of necessity largely within the discretion of the trial court, 
yet the la?/ permits an administrator or executor to employ competent 
counsel and contemplates that reasonable fees ahall be paid for such 
services. This co\irt is very reluctant to make any change in the 
ajiiount as fixed by the trial court. Yet agter due consideration, 
we are of the opinion that the sum of $5000 would be a reasonable 
allov/ance under the facts as they appear from the record in this case. 
Y/e have examined the cross error assigned by appellees and are satis- 
fied with the ruling of the court in that respect. 

The order and judgment of the trial court is reversed and 

judgment entered her upon the claim of appellant as filed, for the 

sum of $5000, to be paid in due course of administration. 

Judgment of trial court reversed and judgment 
entered here. 

-2- 



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STATE OF ILLINOIS, 

SECOND DISTRICT T^" 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 Eecords and Seal thereof, do hereby 
certify that the foregoing is a true copy of the opinion .>£ the said A]ipellate 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 ^^y ^^ 

i -n the vear of our Lord one thousand mne 



hundred and thirty- 



Clcrl of the AppeVafe Court 



(73S15— 5M— 3-32) . 



GEN. NO. 8972 AGENDA NO. 36 

IN THE APPELLATE COURT OF ILLINOIS, 
SECOND DISTRICT 
OCTOBER TERM, A.D. 1935. 



IN THE MATTER OF THE LAST WILL .^M) 
TESTA]>,IENT OF JAVfSS lARKINS, deceased. 

CITY TRUST AI>3D SAVINGS BA?3K, as Exe- 
cutor of the Last Will and Testament 
of James Larkins, deceased, 

Appellant, 

vs. APPEAL FROM CIRCUIT COURT 

KANKAKEE COUNTY. 



NOLIA EYRICH, et al, 



Appellees. 



HUFFMAN - P.J. 

This is an appeal from an order of the court entered 
upon objections filed to appellant's final report, \?ith respect 
to claim made for executor's fees and attorney's fees. The 
appellant was naiaed as executor of the estate of James Larkins, 
deceased, in his last will and testament. It accepted the trust 
and acted as such executor. On ^uly 19, 1954, appellant filed 
its final report as such executor in the probate court of Kanka- 
kee county. The report contained an item of -^VOOO as a charge 
to be allowed for executor's fees and atlorney's fees. Objection 
was filed to the reiDort in this respect and the probate Judge 
being disqualified to hear the case, the matter was heard by 
the circuit court of said county. The court found that the siim 
of ^^53000 was a fair and reasonable amount to be allowed and paid 
to appellant in full for its fees and commissions as executor, 

-1- 



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tauit driJ bscrgs , .i-n9nii3«'-a©;t bJiB IIxw tasl slrl ni ,6©eB90©6 

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-aaln^S lo Jtuoo si-acfoirf erfj ni io;ti;oy:<:e rfowa as iioqei iaatlt acTl 

egiBdo a as C00?# lo K9*i ns benlBinoo :^ioaei eriT .^Jnuoo ee3f 

ttoitoeldO .aeol a'-^amot.tB fens aael a'lccTwoaxe aol bewoXIe ©tf ©* 

»r6uL oitKioiq osli ftuB toertesi airicf -rj- d-ioqei »x(c^ o* Selll asr 

'{(f MiJ©.{ 3flw i©*t<8n; ©xl.+ ,aaao orid nB»rf oJ beltilBifpalB gnJtsd 

1-W8 dd* ^art^ bntfol iiuoti ©xiT . y^ju/oo Jjise lo .tiiroo i-lx/oilo srft 

fJiaq bna tiwoIlB eo o# JxiiroiajB oldanoasei Jbns liB"! a aaw 000S4 to 

,7o*i;o3x« aa enotqaxflinoo 6a« soox sifl tol LCul ni d-nBXIsqga o* 



including attorney's fees. Appelles filed objections other 
than those directed toward the ''7000 item. All of the 
objections filed were overruled except as to the above item 
of executor's and attorney's fees. The appellant has prosecuted 
its appeal from the order of the court made with reference there- 
to. Appellees assi'^n cross errors as to the objections overruled. 

Sec. 133 of the Administration Act provides for com- 
pensation to executors and administrators. Costs and exoenses 
of the character involved herein are incident to the administration 
of an estate, and usually included in the credit allowed the 
administrator or executor for such administration. In re: 
Estate of Thurber, 311 111. Ell; Sprinkle v. Forrester, 162 111. 
App. 45; Mercy Hospital v. \]ri ;ht, Executor, 213 111. App. 554. 
It is customary for the ad3:ainistrator or executor of an estate 
to employ such counsel as is reasonably necessary to bring about 
a proper administration of the estate and to wind up the business 
thereof. The law intends that reasonable fees shall be allowed 
for such services, to be paid from the funds of the estate. The 
proper amount to be allowed is, of necessity, largely within the 
discretion of the lorobate court. V.Tien such court has exercised 
its jud'^ment in the matter, only a plain case of an abuse of 
discretion or of the wrongful exercise of jud.^^ent, should 
justify a court of review in disturbing such allowance. Griswold 
V. Smith, 214 111. 523. 

There was approximately ^|p70,000 of personal property 
administered upon. Over :;i555,000 of this amoujit v/as represented 
by certificates of deposit in banks; over $6,000 in liberty 
bonds; and over ^|>5,000 paid to the estate upon a claim. There 
was nothing difficult in the settlement of this estate. The 
securities were in a liquid state and such as coiold be administered 
upon with the greatest of ease. However, the law permits an 

-E- 



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:ai rrl .noJ:*Biu3iniriTi).B riox; Ovti/osxe to lOdBi^falaljnfis 

• III sa^ .le^aeiio'ii: .V elitnirrgS jIIS .111 IIS ,%9diudT to siJ-B^eS 

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SewoIlB 9cf Ilflrfa east sldBHoaflei ^s.d& abae:^ai wsl s/lT .toeiorf* 

oriT .9t3t^e arft to a£)njjt fjrfcf jnoit biaq 9cf od" .asoi-nse rioi/8 not 

9fft flirfcMw Yl95?ifll ,Yols3909n to ,al JbQWOIXa arf o& dTii/omB leqoiq 

BaaJrotsxe e«i( Jixjoo rfoi/a nsrivV .^iwoo ©*Bcfoig edt to floxd-9ioaj!6 

to 9eifcfs as to 9?!so nlAlg jb tIcto ,is*;^Bffl eri* nl *n0iaaf>wt bcI-1 

filuorff 'SBlorexB SmU^hoiv edt to -lo aoiiaioalb 

6Io«reli-0 .eouawoIlB rieifij ^nxdttjiaib al n&Xrei to cTtx/oo s Y'i-t*a*'t 

.5S5 .III *IS ,dtt:^e .V 

^tiaroig iBnoercao to OCO,uVf xl^tamlxoiqqR qbw 9ied1: 

69^n«t:9iqei asw ;^H«ofl^B alrtj to 000, as# -xq^tO .fiocii/ fieiajsixilffifka 

t^ietfll nl OCO,d# i»vo ja^ffleof Jii itleoqeb to aQteomtiBO ^ 

eiBdT; .jEi»Io e noqw 9*a;ta« oH* o* btaq 000, (J$ asvo fjus jaBaotf 

orfT .♦i'B^a© ei.T* to tnonrelifJ-eB arf* xa jTluoittiX) siiid;fon aBW 

-.'^Tarniflifta erf blx/oo r^.^ rfowe buB 9*i»*« feiajpii b xri 01&1, BQliliuoBa 

ae 9ttmeq wbI eiU ,idyonrf.H .9aBe to ;ta&Jfi9i;p, erii xl*iw xioqu 



administrator or exec\itor to employ competent counsel and 
reasonable fees shall be paid for such services. 

If'vTiile we are of the oninion that the allowance in 
this case is an extremely modest one, yet the trial court had 
the advantage of personal knowledge of the matters that had 
transpired in the course of administration, and his judfjment 
as to the allowance of fees and commissions is entitled to 
great v/eij;ht, V/e do not feel warranted in disturbing the 
order of the court, entered as above. V;e have exarained the 
cross error assigned by appellees and are satisfied with the 
ruling of the court in that respect. 

The order and judfpnent of the trial court is therefore 
affirmed. 

Order and judgment affirmed. 



-3- 



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