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in 3 \yis ST..TE OF ILLINOIS 
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\U APPELLATE COURT 
NY DEC 3 1940 
y —— — FOURTH DISTRICT — — — 
Manik P Wallbo 
| A\ ah MAY TERM, A. D. 1940 CLERK OF TNE APPELLATE COURT 
. \ — FOURTH DISTRICT OF ILLINOIS 


PERM NO. 14 — AGENDA NO. 8 






it Court 
visi. 
t. Clair County, 


AR Illinois 


307 LA. 233 


Appellant (hereinafter designated as Plaintiff) pro- 


Tops 





STONE, P. J. 


secutes his appeal to this Court from an adverse verdict and 
judgment rendered in the Circuit Court of St. Clair County, in 
which plaintiff sought damages for injury to his personal pro- 
perty by reason of a fire alleged to have been communicated by 
sparks from a sf m engine, the property of appellee, (nerein- 
after designated as defendants). 

The plaintiff leased and operated a farm immediately 
adjacent to the edge of defendant's property, where said defen- 
dant operated a tie yard. Ti:is was located near the city limits 
of Hast St. Louis, in St. Clair county. To haul the ties about 
the yard, defendant had constructed 4 narrow gauge railroad track, 
on which it operated tram cars loaded with ties and pushed by a 
"Ginky" engine. 

On plaintiff's farm was situated 4 barn. The distance 
from this barn to defendant's railroad track was controverted, 
the plaintiff's witnesses stating that there was a road between 
the railroad and the barn just wide enough for a wagon to pass 
through, while a witness testifying for defendant said it was 
about forty feet from the barn to the center of the track. 

The evidence disclosed that there was a fire which 
consumed plaintiff's barn and @ quantity of hay, corn and farm 
implements stored therein. Plaintiff's wife and daughter, and 
Mrs. Addie Mae Brooks, a friend, who was visiting plaintiff's 
home the duy of the fire testified that they saw sparks and fire 


fly from the smokestack and that shortly thereafter grass and 















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| 
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trash around the barn were burning and the barn caught fire and 
was consumed. The witness, Mrs. Brooks testified there was noth- 
ing on the smokestack of the engine. 

The testimony of the engineer, who testified for the 
defendant was in substance that as he approached the curve, near 
the barn, he shut off the steam and the trams and the engine 
coasted around the curve end passed the barn; that the engine 
did not throw out sparks, and on this particular occasion did 
not throw out sparks as it approached the barn of the plaintiff. 
He also testified that the engine was equipped with three anti- 
spark devices, viz., diagram, sheet screen netting and petticoat 
pipe, which were regularly inspected. Ti:e engineer further testi- 
fied that on the morning in question there was a fire under a4 
washing kettle between plaintiff's house and the barn, a distance 
of about twenty-five feet from said barn. 

The cause was tried before a jury, which found the de- 
fendant not guilty. Piaintirf made 4 motion for a new trial, 
which was denied. Counsel for the plaintiff in their brief 
filed in this court, contends that the verdict and the judgment 
of the lower court is contrary to the lew and ageinst the mani- 
fest weight of the evidence; that the trial court erred in ad- 
mitting certain evidence on behalf of defendant over objection 
of plaintiff, and that the trial court erred in refusing to give 
certiuin instructions to the jury offered by plaintiff and marked 
"refused" by the court. 

The question of whether the fire was ignited by the 
engine was a question of fact for the jury, and the jury decided 
such question in the negative. The triers of fact evidently 
took into consideration the physical condition of the defendant's 
tie yard and the engineers testimony with reference to the spark 
arresting device and his further testimony that the engine did 
not throw out any sparks or fire as it approached and passed the 
barn, Where there is a contrariety of evidence and the testi- 
mony by a fair and reasonable intendment will authorize a ver- 
dict, even though it may be supported by a ———— of wit- 
nesses, a court of review will not set it aside. Carney v. Sheevy 


29>) Hille. ~Os) ab (88 Rob va Pkock, 22). Ti. App. 396, at 399. 


abi) ah 





Where « fair question of fact is raised by the proof this Court 
has consistently held that the jury's finding will not be set 
aside us against the menifest weight of the cvidence. Summers 
VewHendra1cks,, 300 Tli. App.’ 496s Rich v. Albrecht, 300 T1ll. App. 
£93; Jones v. Esenberg, 299 Ill. App. 551; Gregory v. Merriam, 
294111. App. 483; Rembke v. Bieser, 298 I1l. App. 136, at 146; 
Greenticid v. Terminal R. R. Co., 298 Ill. App. 147, at 153. 

This court is of the opinion that the verdict of the 
jury was not contrary to the manifest weight of the evidence. 

It is contended by the plaintiff that the court erred 
in the admission in evidence of dcfendant's Exhibit 1, which 
purported to be a rough skcteh or plat of the physicial objects 
mentioned in the testimony. The witness Tebby, who drew it and 
who identified it, testified that it wes approximately correct 
us to mezsurements but wes not drawn to scale. This sketch was 
a mode adopted by the witness for locating and giving the rela- 
tive situation of the verious places about which he and the other 
witnesses werc called upon to testify, end which it did not pro- 
fess to be mathmatically eccurate, it provided mutter of descrip- 
tion which wes proper for the jury to considcr in connection 
with the other testimony. It wes not crror to admit the plat in 
evidence. Brown vs. Galesburg Pressed Brick Co. 32 Ill. 648, op. 
653.6 

Even if such plet were technically inadmissible, we 
are unable to see thet its consideration by the jury could have 
wrought eny prejudice to the defendant, certcinly none that would 
justify «© reversal. The People of the Stete of Illinois v. Steve 
Jasezelcm3oowldl i. 507, Op. 5Sl6: Horlan Grittcon v. 
Hon, ine. 247 111. App. 395, op 403; Edith-S. Sweney v. North= 
WESTernuNiiGued ake ans. 25) Tas App. 2, op. 3by hthed: Me Cireary: 
VerGrand Lodge Brotherhood of R. R. Tradnmen, 262 Dll. App. 77% 

Plaintiff complains of the courts uction in refusing 
to give two instructions requested by him which in substunce ad- 
vised the jury that if they belicved from u preponderunce of the 
evidence that there was & fire communicated to plaintiff's pro- 
perty by « sperk from defendant's Sea ume then the facet that 
such fire w.s so communicéited to pleintiff's property from de- 


fendent's engine should be tiken us full prime fccie evidence 





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to charge the defendent with negligcnee which must be rebutted 
by the defcendint. 

It hes been repeatedly held by our court thut instruct- 
ions containing udjectives emphusizing any duty, objcet or fact, 
are improper, <s being cc.leulated to confuse the jury. Molly 
vs. Chicago. Rapid Transit Compuny, 365 Ill. 164; Tater vs. Spoon- 
ersO5 lls MOG; Leiserowitz vs. Puserty, 135 Till. App. 609. 

In both of these instructions the word "full" is used, 

a the pleintiff cvidently having in mind the language of the stit- 
ute, with reference to fires caused by locomotives of ruilrocuds, 
Chapter il, Per. 96, Rev. Stets., 1939), provides, "“Thatiin 


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all eetions against any person or incorporuted compeny for t 


recovery of demiges on account of eny injury to uny property, 
whether real or personel, occ:.sioned by fire communic..ted by 
any locomotive engine while upon or passing clong any reilroad 
in this state, the fact thit such firc wus so communicated shall 
be taken as full prime fucie evidence to ch.rge with negligence 
_ Due corpors.tion or persons ******* There is no evidence that 
wa defendant owncd or operc:ted a ri.ilrocd, under the general ruil- 
road luws of the Stete of Illinois. 
htmheasuibeenuneldsthat csectron 12, centiicle stl, of the 
Constitution of Illinois, which provides thet “railways hereto- 
fore constructed or that m.y be constructcd in this Stcte, are 
hereby declircd public highways end shill be free to all persons 
for the trunsportition of their persons and property thereon, 
under such regulutions ¢s may be prescribed by law," refers to 
railroads constructed for public cs contre distinguished from 
privete use, - to rcilro.ds constructed und uscd as common car- 
riers, ond net to such structures built by individuels on their 
own lands, and to subserve thcir individucl und privite interests. 
Koelle vs. Knecht 99 Ill. 396. It neccssurily follows thet the 
"resulutions prescribed by law," such us those in the R-ilroad 
sal Warehouses Act, have no upplic.tion to & privite ruilroed 
such us that oper:ted by the defendint merely «ws un incident to 
the business of creosoting ties. This court is of the opinion 
thet the tricl court committed no error in refusing to give these 


two instructicns, which ure clmost identici.l. 





We find no reversible error in this record und the 


judement of the lower court will be uffirmed. 


AFFIRMED. 





















ü— omen “ict 





VV — — 
STATE OF ILLINOIS — | | | Ba | | 
— 
APPELLATE COURT LJ | 


neT 92 8 1048 
FOURTH DISTRICT —— 
Det EP Vtalb LET 
MAY TERIA eee 
FOURTH DISTRICT OF ILi;nels 
A. D. 1940 
TERM NO. 14 AGENDA NO. 8 












Ss 


ypbal frgh the 


i j 577 1N 322 
Defendant Appellge. 2g! If SS 


STONE, P. J. 

Appellant (hereinafter designated as Plaintiff) 
prosecutes his appeal to this Court from an adverse verdict 
and judgment rendered in the Circuit Court of St. Clair County, 
in which plaintiff sought damages for injury to his personal 
property by reason of a fire alleged to have been communicated 
by sparks from a steam engine, the property of appellee, (here- 
inafter designated as defendants). 

The plaintiff leased and operated a farm immediate- 
ly adjacent to the edge of defendant's property, where said de- 
fendant operated a tie yard. This was located near the city 
lamits-of Bast St. Louis, in St. Clair County. ‘To haul the 
ties about the yard, defendant had constructed a narrow gauge 
railroad track, on which it operated tram cars loaded with ties 
and pushed by a "dinky" engine. 

On plaintiff's farm was situated a barn. The dis- 
tance from this barn to defendant's railroad track was contro- 
verted, the plaintiff's witnesses stating that there was a road 
between the railroad and the barn just wide enough for a wagon 
to pass through, while a witness testifying for defendant said 
it was about forty feet from the barn to the center of the track. 

The evidence disclosed thet there was a fire which 
consumed plaintiff's barn and a quentity of hay, corn and farm 
implements stored therein. Plaintiff's wife and daughter, anda 


Mrs. Addie Mae Brooks, a friend, who was visiting plaintiff's 


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home the day of the fire testified that they saw sparks and 
fire fly from the smokestack and that shortly thereafter grass 
and trash around the barn were burning and the barn caught fire 
anid was consumed. The witness, Mrs. Brooks testified there was 
nothing on the smokestack of the engine 

The testimony of the engineer, who testified for the 
lefendant was in substance that as he approached the curve, near 
the barn, he shut off the steam and the trams and the cngine 
coasted around the curve and passed the barn; that the engine 
did not throw out sparks, and on this particular occasion did 
not throw out sparks as it approached the barn of the plaintiff. 
He also testified that the engine was equipped with three anti- 
spark devices, viz., diagram, sheet screen netting and petticoat 
pipe, which were regularly inspected. The engineer further tes- 
tified that on the morning in question there was a fire under a 
washing kettle between plaintiff's house and the barn, a distance 
of about twenty-five feet from said barn. 

The cause was tried before a jury, which found the 
defendant not guilty. Plaintiff made a motion for a new trial, 
which was denied. Counsel for the plaintiff in their brief 
filed in this court, contends that the verdict and the judgment 
of the lower ccurt is contrary to the law and against the mani- 
fest weight of the evidence; that the trial court erred in ad- 
mitting certain evidence on behalf of defendant over objection 
of plaintiff, and that the trial court erred in refusing to give 
certain instructions to the jury offered by plaintiff and marked 
"refused" by the court. 

Counsel for defendant directs the attention of this 
court, — to the fact that the errors assigned in the motion 
for new trial are not set forth in the abstract. The abstract 
filed by plaintiff merely contains what amounts to a notation to 
the effect that such motion was made, but does not set out the 
substance of such motion. In the absence of such errors assigned 
in the motion, being incorporated in the abstract, the defendant 
insists that there is nothing for review now before this Court, 
ond request affirmance of the judgment of the trial court, for 


failure to file a sufficient abstract as required by the rules of 


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this court. 

The abstract is the pleading of the parties in a 
aourt of review and whatever is sought to be reviewed must be 
ountained in that pleading. People vs. Paul 167 Ill. App., 557; 
isGovern v. City of Chicago 202 111. App. 139. It has frequent- 
“7 been held by the courts of this State that, where a motion 
"sr new trial is filed, only such errors as are specified in 
such motion may be urged in this court on appeal (Grahem vs. 
Dressen 292 T11. App., 15, 23, 24; Gunderson vs. First National 
Bank of Chicago, 296 Ill. App. 111, 1183) and where such motion 
is not set out in the abstract which is filed on appeal, none 
of the matters sought to be presented in the instant case are 
properly before this court for review by the court on appeal. 
Janeway vs. Burton 201 111. 78; McGovern vs. City of Chicago 
202 Ill. App. 139, 144, 145; Retaj vs. Providers Life Assur. Co., 
221 111. App. 459, 466, Meyers vs. City of Belleville, 304 I11. 
App. 633. In the instant case the errors assigned in the motion 
for new trial are not set out in the abstract, and this court 
has no way of knowing the contents of the motion for new trial, 
-without an examination of the transcript of record. In such 
event the court will not examine the transcript of record for the 
purpose of finding cause for reversal. Gage vs. City of Chicago, 
211 T11. 109, 112; Meyers vs. City of Belleville, 304 I1l.App. 
633. 

The plaintiff secks a reversal and remandment of 
this cause, and apparently reclies chiefly on matters pertaining 
to the weight of the evidence, error in refusing to give certain 
instructions requested by plaintiff and error in admitting cer- 
tain evidence over the objection of plaintiff. Under the author- 
ities hereinabove referred to and in view of the issue raised 
by defendant, this court is not in a position to disregard the 
rules of practice with reference to necessity for abstracting 
matters contained in the motion for new trical anc pass on the 
questions not properly before us. 

The judgment of the Circuit Court of St. Clair 
County will, therefore,be affirmed. 


AFFIRMED. 





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JACOB VONDRASEK, e pF &} A 
pe rves,{ : 
— Wf NTERLOCUTORY APPEAL FROM 





v. 


) | 
) SUPERIOR COURT, — 
BERNARD YALE, eo 


307 e's 2.4 


MR, JUSTICE MATCHETT DELIVESAED THE OPINION OF THE COURT, 


* Appellants, 


This is an appeal by defendants from two orders, one of 
Auguet 22, 1940, which enjoined defendants from trespassing on plain- 
tiffs' premises, and the other of August 24, denying the motion of 
defendants to vacate the injunction, fhe injunction wae interlocutory 
and for the purpose of preserving the status. The motions were heard 
on the verified bill, a verified amendment to it and verified anewers 
of defendants to the bill and the amendment, 

The facte appearing from the pleadings, disregarding mere 
eonclusions, appear to be that plaintiffs hold title by warranty deed 
to premises known as 6121-23 5. Wentworth avenue in the City of 
Chicago. The rear of these premises is improved by a warehouse four 
stories high, and the land in front of the warehouse is vacant, Ad- 
joining these premises on the north ic a lot improved by a gas station 
which is operated by defendants, Sernard and Mandel Yale, fFrior to 
November 1, 1959, a right-of-way across the vacant part of plaein- 
tiffs' premises was leased te Mr, Adler, who then operated the gas 
station and who pald plaintiffs $25 per month for the privilege of 
permitting customers and Adler to drive across the premises, in other 
words, to use the same in obtaining accere to and egrese from the gas 
station, Adler's lease has expired. Defendants, who succeed Adler 
at the gas station, nevertheless, continued to use the prewisesr of 
plaintiffs as a driveway without permission or lease and without paying 
compensation. Notice to discontinue these treepasses has been given 
by plaintiffs but hae been disregarded not only by the Yales but by 
ether defendants who upon the order of the Yales persist in using the 
land for the purpose of delivering supplies to defendants. Defend- 





MOAT JAZ(GA YAOTUDOIANTE “ 
.THUOD KOTASTWA 


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ante heave alse placed on the land owned by plaintiffs large tanke 
which they use for etoring oll, ete. 

The amendment to the bill alleges that plaintiffe have and 
will continue to suffer irreparable injury unless an injunction iseues 
as prayed. 

Briefs have been filed in thie court and the cause was 
argued orally. In argument the title of plaintiffs and the trespasses 
by Gefendants and their customers were admitted. Defendante gaid they 
were willing to pay a reasonable aswount for the use of the premises 
but hed not been able te agree with plaintiffs ae to what 2 reasonable | 
eum would be, The answer aleo averse laches and estoppel as a defense \ 
because, as it is eaid, suit was not brought for nine months after the 
beginning of the treepasees, There ie no serit to this contention, 
Chicago Washingtonian Howe v. Chicago, 157 I11, 414, 

It hae been argued the court was without jurisdiction be- 
@euse plaintiffs have a remedy at law by way of ejectment or foreible 
Getainer. A suit of either kind, it is apparent, would not provide a 
complete and adequate remedy. The trespasses of defendants are 
continuing in their nature and whatever the law may have been in the 
past it is now settled that tespasses of as continuing nature in order 
to avoid a multiplicity of suite will be enjoined by a court of 
equity. Orage v. Levinson, 238 T11. 69; O'Donnell v. Gearing, 291 111. 
278 and Taylor v. Pearce, 179 111. 145, It was within the discretion 
of the court to hold matters in statu guo until a hearing could be had 
upon the merite. Nestor Johnson Mfg. Co. v. Goldblatt, S71 11. 570, 
The orders appealed from will be affirmed, 

| APFIRMED, 
O'Connor, ?.J., and MeSurely, J., concur, 



















adaet equal atittntele yt benwe bast edt oe bevalq onfa evad 4 
099 .Ao ———— ‘20% oan yor? donate 
bas evad eTittatela tad eegetin itd ade oy Pnombnoms are ae 
saseed astvonutar se eeetnw eautnt elderaqerit a ‘snttgoe | tite 
Saw setieo od? brie tine eidt at Sofft need syad vient 
eovasgeatt ads bas Mlsolela Ww olst? asd tngmegna at ahtine, Solin 





Xen? Aloe ataahaote( .hattiaha eiow sremosaue afed? fan agaabnoted yo al 
_ #eekeesg act to sen aif. 10% savoun eidanonses a yrq of pabilin exw y 
Wate & tace oF aa eYitintaig Athy nae af: Ste + ——— —4 


te 






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seis LIT SOL spnmagde — — 


am ealsotiaiupl tuedsiu saw FIPAR 20, LONER PEPE 


= — bines cera agaa af #2 phoma ty 
= age Wis atnahavles Io asprageors afl .ydomm atapebs bas otal 1 
ad? nt sont vad yan wad wit tavedade hae euutan 2tade a gakunsange 
_tabae as oxeian gatwaltece « te easaagued 2 asd hedsten wom, at. A gaag 
JM TURN A WL DOMRORAS 9 Sie EAI IA RARE D ove of 
192 wabueas .v Ligand’ a (83° AST OPS .ponmived BMAD at 2 
— edt atatiw sew .Ax OF. — a 


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whe wali’ sé Teheten sealed 449 De Web. ce mete Gan 
. ae n v tea 


 xbanted athahnetah of gackiwe eatsevtiod & 


411635 


MAHLON D, MILLER, doing business as F 
Werchante Currency Exchange, . é 






POLI CIRCUIT couRT, 
inc. SLs ‘ , JOURNEYS, Inc., We 

Re GAIPF}TE, CENTRAL NATIONAL BANE I 
CEIGAGO gnéd * MANUPAGTURERS BATIGHAL BANK 


2p Defendante, 


COCK COUNTY, 





AMERICAN EXPORT LINES, INC,, and UNITED 
STATES FIDELITY AND GUARANTY COMPANY, 
Appellants, 

MA, PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT. 

By this appeal the American Export Lines, Ine., and United 
States Fidelity and Guaranty Company seek to reverse a decree whereby 
it was ordered that plaintiff recever from defendant, Central Hational 
Bank in Chicago, $1223.92 end further ordered that the cost of the 
sult be taxed agesinet defendants, American Export Lines, Ine., United 
States Fidelity and Guaranty Company and Emil Leidich, Ine, 

The undisputed facts are that Hareh 10, 1938, defendant, 
Smil Leidieh, Ine., of Detroit, Michigan, drew ite check for §1223,92 
payable to the order of defendant,American ixport Lines, Inc., on the 
Manufacturers National Bank of vetroit. The check was delivered to 
7, A. Henning, as general agent of the payee, American ixport Lines, 
Inc. He endorsed the check: ‘Pay to the order of Journeys, Inc, 
American Sxport Lines, J, A, Henning, @. 4." but did not get the 
money on the cheek until some eight or ten daya later when it was paid 
to him by Journeye, Journeys endorsed the check to the Cosmopolitan 
Pravel Service and afterward it was cashed by plaintiff, Miller, who 
was ranning @ currenoy exchange business, He deposited it in his bank, 
the Central National Bank in Chicago, the check wae paid in due course 
and he was given credit by the bank, Afterward the payee, American 


—R——— asm 


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Cpt Mg en Mg 







— AGMOTEAN § eISTOASUUAM Be 
wtnabastes | » aie] 
—4 et 


(  .ntnalfeggs 


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— — — 
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Detint Bas ,.onl ,eentd f20qed naotiems off Laoqgqe sat ye ae 
yferedy sereeh & eetevey oF Hoos Ynagaed Una bao VeLTobs? sotnse 


fanoltat Lertes! ,Snabasted mort sevooer Yihtatata tadt berebxe adv Ft | 


gilt to Pk0o ae sa8F Dorehro remeTWT Bnd SC.ES8TY jopootad AL and 
begind ,.ont \sentl troqni maohvoma \senabaeted temlaga dexas ed vive 
ont dolbied frail Ban yntsqeed Yteetaw® bad yRLebiT oor ate 
(twabavteb ,O20r OF Mowsh Sadd —— 

Se .e8et aot Hoedo 092 woud maydioth etewed to ,.ont (Mobbtet team 
“ete ao veel \wanta ——— ee | 
——— ——— ——— gninaet a —— 
vont yeyenrvel to debi oft of yet" tiseite edt bod roſan oi ‘at 3 

‘ edt toy ton bth sed *.4 © ygatoet A Jt \wondl deeqe® wacbate 
‘Aig om ti notte vetel ayad wot xo tigie omoe fttau Koete et? oo Yenon 
- antttoqonaa® alt of doode add Boewobnd syenties Jresetot gi Rid ot 
tenis ioLLIM \Pittatelg yo bedeao aaw TL Domwrette bre otras Loven? | 
Mand edd nt ¢f bettacqed OX vaventend eynatioxe Youeriwo 4 patent now 
cub nt Rate awe nate ost —— —————— —2 











«Ze 
Nxport Lines, Ine., advised the bank that Henning had no authority to 
endorse the check and the bank charged “iller's seacount with the 
amount of the check, Afterward Miller brought thie suit. 

Counsel for defendants saye: “The American “xpert Lines, 
defendant, is engaged in the businees of operating a Line of stean- 
@hips between certain porte of the world for the tranapertation of 
pessengere and freight and in conneetion with its said businese sain- 
tained an office in the City of Chicago, which office, on Harch 10, 
1938, ané prior thereto, was in charge of defendant, J. A. Henning, as 
general passenger agent. Mr. Henning head authority to ealicit passcen- 
ger butiness for the company, and sise authority to receive checks and 
currency and money orders in payment of reservations. He had authority 
to give the company's receipts for these checke or woney orders, ie 
iemued the tickets in Chicage and signed them, *** "; that “Henning 
had no authority to enderse checks made payable to his employer. * 
There ie in evidence a letter written by the employer to Henning dated 
April 28, 1927, in which Henning wae told that any checks he received 
muet be forwarded to his employer in New York, 

The evidenee further shows thet at the time Henning endorsed 
the check to Journeys the latter was in financial difficulty and ebout 
eight or ten days thereafter, when Journeys was in funds Henning re- 
eeivead $1,000 in cash, e cheek for $160.50 and a draft for 450, 
Henning took the $1,000 in cash and the check for {160,50 and bought 
a6 Ameriean ixpressa draft payable to defendant, American Uxpert Lines 
and forwarded the draft to 1t in New York City. Henning advised his 
employer, the American Export Lines, that he was sending this 4merican 
Gxprees dreft in payment of tickets for Mr. and Hre, Lewis Bennett, 
The evidence shows that some time prior he had been paid for the 
Bennett tickets but had failed to turn the money in to the company. Ne 
never reported to hie employer that he had received the 41225,92 from 
Leidich, Ine. in payment of tickets which he sold to Keydel and Huff, 
Afterward Henning's records were examined and a shortage of #6, 500,86 
found, 


«Z. 
of Witediua on Bad gutnnet tat dasd od? Seetvba ,.ont sent sroge” 
ead avlw tayesos sealife beguano Kogd ol? boa dood oul oetonne 
thus eldd tégoou! Yoltlk Duswretté .foedo an? Yo tavome 

<20ah) Trogx4s aaolhrom ofT* ‘tayes sfanboeteh tot Loenwed pg ae: 
~mease Yo antl 2 gnttaroge to apentoud ot at bayegae at sFosbastot 
te modteeupqenass edt cot Binew o2. Yo aqtds 
“Aish erecta! Stae atl A¢iw nolseensor at bua faptort daa sconneaney 
.Of dow! mo ,ce2?to dotsw ,ogantdd te wid eag nl coltte: ae: Benter 
o& .yatane! A .L fnahweted ‘te egueds at aew ,ofered? tofig bra ,88er 
“nowseg Iietion ov yittedttps bad gainnel ah Rd weyaseseg — 
dna sdosds eviooe.. of yt inedtue ov ke ne ehaques of? 16) anontasd s9g 
thuoddive bad wl — 


sil .esabro yonom ve edoede exedd ot agqtooes a! yracnoo odo erts.ot 


geisnes? tact ,” 8° meds bompia ban cpentd) al -etedele ade bowant 
* soyelqgao etd oF eidayaq ebze adoeio seaebss of yttvedtws on bat 
beviewes sai edoodis yas fade blot eae gutanall dotde st ,PE@l ,68: Lhega 
ato well ai teyeique ald of bebtewtet of deue 

bearehse gatenet eat? add ta tad? ewods seddaut sonebive edP 8 
fvods-6ns Uhiwolttis lalonan2? ef gan aetial sa eyeaiwel of adosde adz 
oot giictel hav? ah aaw eyomseoh aety ,a0ftseted? syab met 10 tdghe 
-G84 aot ttexh o bam 08,0015 40% doode o ,faso mf O00 ,f% Sevias 
tiyved San 00.0015 set deed edo due tere wt 000,16 edd soot gatanelt 
seas Isoqgrs sashiqad .sScabaeteh of oldayng Diewh eeengqzil neeltaaA as 
aid beaivae gataael .yot2 dug wok at sLof otenb ad? Ooiiewtet San 
Aeslisad o68e gathage eau ef Tad .wenhs Moqx’ asotroms min reyadqas 
 pttense atwod 28 bas set 20? stedeld. te teamysg 22 Po 2oth eeorge’ 
odd 302 Dloy seed dod od voli, sads amon galt evade aenebles edt 
oH ,eosqes alt of al yasem ene nud no Sollat bad sud atedetd stannel 
(G05? S.C L) edt Sovieoss hes ad dad? aevedqae eid a2 hatieget «even 
(stish hae IeayoR of blow ex dokde utexest Yo ewonyny nt vont \Mosbted 


88,008.04 To enadsose & bus Bentnaxe ew witoser atyatenel Sumeres Th me 








-i- 

Defendants contend the evidence ghowe Henning had no author- 
ity to endorse the cheek for [1223.92 which he reeeived from Leidich, 
Ine. and therefore no recovery can be had in the instant case and 
§23 ef the fegotiable Instrument Law, chap. 98, Ill. fev. State, 1939 
ie aited, Theat section provides: “where a signature is forged or 
made without authority, it is wholly inoperative, and no right to re- 
tain the inetruwent or to give « discharge thereof, or to enforce 
payment thereof against any party thereto, can be acquired through er 
under such signature, unless the party againet whom it is sought to 
enforce eueh right is precluded from setting up the authority or want 
of authority, " 

There 1e considerable argument in the briefs and a nusber 
of authorities cited and discussed as to whether Henning had implied 
authority to endorse the check eonsidering the method in which he 
conducted the buginese of the American Export Lines. Hut we think it 
is unnecessary to pase on thie question for we are ef opinion that 
whether Henning hed such authority is not controlling because the un- 
disputed evidence is that Henning sent te defendant, hie employer, 
$1160.50 of the money he received from the cheek in question and 
obviously defendant to that extent wae not damaged by Henning's en- 
doreement and cashing of the check. ‘The amount the Sxport Lines re- 
ceived was §63.42 less than the amount it should have received from 
Henning but there ie no suggestion that the Judgment for plaintiff 
should be reduced, In these circumstances the Judguent of the Cireuit 
eourt of Cook county 1# affirmed, 

JUDGMENT AFPPIAMED, 
Matchett, J., and MeSurely, J., ¢onour, 


Be 

-~gedtue on bal gntianst ewoao eanchive ef? bnetmoo stasbasted « 
vintbled most hevteses ad dotde 8@, 58815 se? geste of? serobre.of yes 
Se seeo Seavert ef? of Sarl ed Bao qasvEOe? on oOTOIeTEd? Sas sont 
GSel ,etare yeh .Lki 88 .qaeio pwad teomertent efdattoge’ ait to 58% 
26 Bemvet af esytaagia a stone” iesbiverqg mottees tadf .Setioved 


~27 of gegty o# baw ,evEdaceqest Yiledw at 2 ~witendtes twedtiw eban 


soretaie of ne ,lestets egusdesth e evlg of to faeuratant od? mtad 
<0 digueutd Sevineos ad age yoveqeds Goma Yea Iselage Bowed? Inemyaq 
 @9 Idguoe si 72 aotw Seakege Gloag off saelaw yountengie dove yebse 
-taav te Ehisediue aif qw gelétes aott Sobeloetq ef Saighi dewa sov8stae 
fo oo tee ote ot ipods te 

esdena a ban atetud eff at txemimia eidevebiones ef exe «9. oo) 


eliquh Berl galnnot tedtedy of sa hoaunesth bua bette asltlxedteys Yo 


a doldw af becidom offs Qudtediencs soede eit eovohae of qi ivodaua 

ok ned? ow Qui vents Sreqx asolrems ed? to arontaud salt hetoubnes 
aud aeieigo lo eta ew aot solenenp oidd a6 gaaq 8 yussaeoonnm et 
nn of3 seuesed Galifertaes tom af yeiaodtes dou Sad gotnael aedtedu 
<ssyoiqwe sid ,Snabaete® of dnee gudaael tad? af eaneblve Letuyath 
~ao a gaianed yd Segamab son tow Inetxe Zad¢ of taabaeted qlawolvee 
mort Sevieeer evad Sivede $2 tnyoms off mudd atel 26.06) sew bevies 
‘Yisstalg sot toswbet ae tad? eelteepgue ca af ered? det gadncok 
Fiwexto ede to taemyphyl ede aesaatsmwerte esedd al .feeuber ef Sivods 
sLomwltta af yiaweo woe! Bo sumo 

AAI: PUA. os yk Poovan! maeteie: aay pee 

tveneo ,.% ,¢lemeeh des ,.% ,tPedotst 

sate? war ete 

cate Poet, 

 aeiges wE8, ay DP ee. wat 


retyen wt vee we 


ver &iegeotr en yale Mepe Re. BOE. 
4 1007 : 
| a 
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INES te eS 


— 





41174 


MASSACHUSETTS MUTUAL LIPE IR AYURARCE 
GOMPAHY, a Corporation, 














} 
ppellee, - 7 
v%. / 3 ) JAPPPAL FROM 
: x — eu 
MICHAEL J. MANS, ot al.” F SUPERIOR COURT, 
Z a’ : 
i? i GOOK COUNTY, 
pOROTAY Itauiu. * 
Appellant: 1 A. 2 3 5 


MA, PRESIRING JUSTICE O'CONWOR DELIVERED THE OPINION OF THY GoURT. 

by this appeal Dorothy Sherwin, a judgment crediter of the 
mortgagors, seeke te reverse a decree of foreclosure, 

December G, 1938, plaintiff filed ite complaint to foreclose 
the lien of a truet deed given to secure an indebtedness of 585,000, 
The Hanleys the mortgagors, and others, were made parties defendant 
and January 13, 1938, plaintiff filed ite amended complaint making a 
number of judgment creditors, including Dorothy Sherwin, parties de- 
fendant, she on Cetober 28, 1937, having seeured a judgment for 
$1425.85 against the mortgagors, July 16, 1935, the mortgagors being 
in default, aswigned the rents to plaintiff, the mortgagee, and it 
operated the property collecting the rente, making repairs, paying 
taxes, etc. from that time. The Hanleye, the mortgagore, filed their 
anewer to the complaint in which it was alleged that fer a long time 
prior to the bringing of the foreclocure sult the rents had been age 
signed to plaintiff and on information and belief the ‘anleys averred 
that the rent collected by plaintiff from the property was more than 
sufficient te pay the interest and taxes now claimed by plaintiff to 
be due, and more than the amount with which the nortgagors had been 
credited, “ome months afterward defendant, Corethy Sherwin, filed 
her amended answer, | 

dune 12, 1939, Mre, Sherwin served notice on counsel that 
ake would eak leave to five an intervening petition on behalf of the 
Ghieago Title & Trust Company, ae trustee, that it atand a6 a croge 
complaint and for rule on all parties to anewer “and for other relief 





BUR eat Ww aQEMIGE get GAKy LAG SOMNOD!O apse, ——A 
ald Yeo ae¢ibero tasmygbu, a ,siwaeds. ydtewed Jaoqge aidt W, ... orn 
,oxueeloexo? ‘lo sereeb & satovet of axeoe, ,xt9gepit0m 

enclose? of gatslqwoo adi Helki BWttately ,84GL .6 redmsoed 
-900,484 Yo saenbetdehal aa eiwoae of mavip Seed taunt « 20 nels edt 
tnabseted oeisaey han otow ,aueddo. bag ,stegagtion ed? syeiaal ed? 
& guldan smtefqnoo hehnems eff belst Wtdalelg, CEL ol — 
~sh aolfasy siwgedl yatergs galdulont ,atetibere sageghut. to .aedeun 
201 daeagiul ⸗ bexuocs gatvad ,TEGL ,88 aedeoted ao ada .daabaet 


grled erogagires oft .G56L GL yleb ,avegentuem adt teatege 66,08eL0 
Jt bas ,eogagttem ag ,Iiivntalg ef stags ed? homgiags ,tlvateb ad 


tied? Beds? yeioysgtrom gad ,syeinall edt ,emke tad? mond, .ofe,,nexas 
oais gool s Got ged? begelis say 32 dalde of Satalques edt 2 sewaae 
-38 aced Sai siege: ead Sine viveolaetol off te gatgaind od? of sohug 
bevieva syeines edt tetled daa nottaw 20 bam Tiitatalg of bsagia 
neds ovem aow Yueqotg ed? wot? rittatete.wd bateelleo Jaat edd tadt 
et Ttitalalqg yd bowtalo won sexed bas Saenetat edd yaq oF tneloltive 
seed Sei segegtiom ef? dotdy diiw tavems edt asd? gyom baa ,oubed 
helit akwied? qilouwd .taabnsted Diewsed te adinom eaot ,bestber. 
| : stowene bedoess seri 

tacds Leeawes ao eoiton davies alwiedh ,axk ,@6e@L .8i sant 

edt to Liaded ae selttteq gninewietal as evtt of evael ana biwow edie 
aaete « 6a beats fi tai? .ootewi? aa ,ynaqmed tavx? & ef22T ogseldd 

terlor 19dt6 102 bas* rowane of askiceg Ife ne eft 10% baa Iatalqm 








-2- 

prayed for in said petitien,” and that defendant, verethy “Sherwin, 
would aek for @ rule wpon plaintiff to file an account of all rente 
collected, cepies of which were said te be attached te the notice but 
they are not in the record, dune 14 counsel for Dberethy Sherwin served 
notice that she would ask leave to file an amended answer, copy of 
which wae said to be attached to the notice but it ie not in the 
record and June 15 an order was entered giving her such leave, The 
amended answer wae filed in which, among other things, it was allezed 
en information and belicf thet plaintiff, the mortgagee, bad collected 
the rents from the property in question for a number of years; that if 
the rents were properly applied the indebtedness sought to be fore- 
Closed would be paid, 

The case was referred to a magter in chancery who teok the 
evidence, made up his report and found the mortgagors had assigned the 
rents to plaintiff, who went into possession, collected the rents and 
made disbureements in the operation of the premises; that Dorothy 
Sherwin hed obtained a Judgment in the Municipal court against the 
mortgagors, as above etated; that she demanded an accounting of the 
rente and pursuant te defendant's request, plaintiff produced doo- 
umente showlng receipts and disbursemente in connection with the 
operation of the property; that these documents were objected to be~ 
cause they vere not the beset evidence, the master excluded them and 
the recomsendation was that a rule be entered directing plaintiff to 
file an account of the receipts and disbursements and that if it 
failed to do so the bill be diemissed, 

Ars. Sherwin filed objections to the report in that the 
master, (1) failed to find that the evidence showed the amount due 
plaintiff wae lees than the amount it had collected in rents in 
operating the premises, (2) that the aaecter erred in failing to state 
the amount and (3) the waster erred in finding from the evidence that 
there wae etill a emall eum due plaintiff. 

Plaintiff also filed objections toe the mascter's report, (1) 
that the master erred in finding it was lmpoesible to atate the amount 


~8- 

ilivteds yitere .gaabasieh tadd baa * gol2 ltog bias ak «et beyesg 
steer Iie to Sawoooe ae eff% of Thitakelg aoqe ofur 4 ot dee Siwow 
tud saitom elt of Sedostta od of bias @uey dotsdy to eetqes  beteslioe 
svxse alwead® yitoved set Lommvoo AL exw ,bucoes odd af ton orm yest 
to Yow ,tewana bebneme as allt of svael, dee blvow ene Sarit “entton 
odd mi ¢om ai ti gud elton ong oF bestoattg ed of Ahea saw doldw 

edi ,oveel dove xen gaivig Seretne saw aedte na OL exwl ban Srooes 
beueile aav 2! ,agaide seti®e gnoua <dokdw ad Seilt asw aewena debrens 
bevoelfes Sad ,eegugivem edt ,Ttitntalq fad tolled bas coltsmo tal no 
LE Gad? jowsey To ceduun 2 vot motveoup at Yreqeta of? Mott Baer edt 
“#162 ed of Jdgsoe weerbesdedat o8f? boliggs qlaeqoud Siew eFoes ole 
 ghtaqg ef bivow osele 

oo sone ow Yreoneri> O2 ceteam 2 oF SewTIelet gaw eno oT — 
ait Aamgdesa Sad eaegaydtom of7 hbawot dus teoqer eld qu ehew ,oonebive 
fan efnes ef Seteeiion welsaeeeeg otal Snow enw ,Tiidnialq of adwer 
YAtore® tal? jecetmorg ess Lo soktsteqe eid al etmemecyedels eben 

ens deslagea tiyeo IaqiolawM ef? of Saenghul # hewletde bad whwrer® 
‘S89 to yuttsvocca ta bebasmes ods Tadd ULeteta eveds ae ,or9pagon 
od? cdlw nelsvencee af stxeusrundeth Sas ateleoe galwode adanaw 

apd of Sedootde erew esmemuoob opadt tals. tesyong af to AeLtaTEqo 
bas seit bebvloxe istean ot sonehive tesd off Jon atew yey saves 
of IsHlaly yovooukh heretue ed ele « add ase noltebaynwonet’ exit 
‘GL th Gul Has eteemeermGath bas atqieoey en? Yo tanooen am oi21 
sbosetmetd of [L2f eg es ob oF Hoisat 

oA Sad? at s4oqor ony Of anoksoolde Delt mbwaets wwe 

enh Inpows of? bewods oonabive edy tas bat of better (1) (cod ane 
«ah athen at betoelloo Bad 22 Sawome 069 natd eek tay Tretataty 
adete cf pililat al bevse aefese ed? tect (S) ,eondmeniy ed? gattareqe 
lana — — — (8) 2aw tavemm odt 


.ianiata oud mvs Lleun a L108 naw eredt 


(£) sProqen: e'xefeam ode of anprvoetdo betty oats uesa tent | pandas 


tapona oft etate of eidtanognt tow sto gathat yal: forse sone oat ama oe 


ane 

due from the Hanleys to plaintiff and (2) that the master erred in 
recommending that a rule be entered directing it te file an account of 
receipts and disbursemente made in the operation of the premises, The 
objections were overruled and they were ordered toe etand as exesptions, 
fhe chancellor overruled Mrs, Sherwin's exceptions, sustained the ex- 
ceptions of plaintiff and January 22, 1940, entered a decree of fors- 
elesure in which it wae found there wae $76,315.92 due from the 
Hanleys, thet all other liens against the premises were subordinate to 
plaintiff's lien and it was decreed that unless the amount found due 
wee paid within thres days the property be sold, the proceeds applied 
and if there wae a deficiency the master report the deficiency. If 
there were « turplue he should aleo report such surplus end hold it 
subject to the further order of the court, : 

Yrs, Sherwin objected to the entry of the decree and the 
next day, January 23, 1940, filed her notice of appeal in which she 
specifies her grounds for appeal, some of whieh are that plaintiff 
should have been required to render an account of the rente collected; 
that “The Master has found from the plaintiff's evidence, * that it had 
collected more than $55,000 for rents from the property and she says 
the entire indebtedness “hae been wiped out by the collection of the 
rents which plaintiff has received from the premises;" that the decree 
be reverced “with directions that the trial court find the accounting 
as followat", Then follow a number of itema which purport te show the 
amount due plaintiff, $68,699,354 and "as against the foregoing credit, 
should be given as follows:", Yhen follow five items aggregating 
$69,661.17, whieh purpert to show the rente collected by plaintiff 
from the premises and aske thet *a new decree be entered *** * and 
‘give full credit for the above and foregoing rents" and that there 
be no allowance made for plaintiff's selicitors’ fees, 

Ae we understand the record, plaintiff's position la that 


it hee given eredit for the net amount of rente received from the 
premises leaving the amount due as found by the decree, The Nanleys, 


G 


at bores totaer ost sath (2) Soa Yetvatety of eyelash ed? mott ond 
to PmWoo"A he ofl? of $2 Qabtoortd Sovstae sf oft a Pads Anthnoamoder 
ex? jacetmery off to mettaxaqo ont a? sham atnemecandath bus Sqleoot 
noltqeoke na buate of ered erow \eet Baa belwrieve etew anottoetdo 
-x0 on? Bevtetoue ,sseltqooxe e'ntwred® .naw Sefuvteve telleonads eft 
-ecot To Se1eh & Beretna ,ORGL .So prauRel bre Yhitatate te taoltqes 
add tort ou $0685 OTE saw eredd Bawe? saw tt dotity at orweels 
of Stanthredus srow weeinery orf? Pantages’ amett toute Tie tad’ .wigetnait 
pub Siwet tawoms adit ao ofan tas? Bdowwed baw oF baa wott at Pidentelg 
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\tihexs grtopore? sat tattags as” haw 08,008,080 \treabsTe oem tawena 
galveyorgna emett evit welle? neat s*tewoltor be nevis ad Biwoite 
vitdalats ew berostios edner add Worle of Pxoquny Hotdy ,FI,.108 ead 
tna * ‘OP penemne Od obteek ven i tas9 axtaa Bas seelmory off mort 
ocet —* ‘Dag “afved axlegdrot Bas Svods oat to? ¢ Ibex” thet ets? 
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~4= 
the mortgagors, made no objection to the decres and de not appeal. Mra, 
Sherwin, having alleged in her anewer that plaintiff had collected 
rente sufficient to wipe out the indebtedness due under the mortgege, 
the burden wae on her to preve this allegstion. (Boudinot v. Winter, 
190 T1ll. 304.) She made * such proof but sought to throw the burden 
on plaintiff and to charge plaintiff with the amount of rents collected 
without any deduction that plaintiff might be entitled to on account 
ef the operation of the building, making repairs, ete, 

we think the chancellor wan warranted in overruling fre, 
Sherwin's exceptions to the master’ a report and entering the decree, 
If there ie a surplus after the sale of the property, the chancellor 
Can award such surplus to “Mrs, Sherwin or to any other person entitled 
thereto, 

The decree of the Superior court of Cook county ie affirmed, 

DECKER APF LIRWED. 

Matehett, J., and veSurely, J., soncur, 


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41185 
BIGMUKD STAANSS, 


ve 





WR, PRESIDIPG JUSTICE G'CONNOR DELIVERED THE OPINION OF THE COURT, 


Plaintiff, the lessor, brought an setion of foreible de- 

teainer against defendant, hie tenant, to recover poesession of property 

covered by the lease, There was a trial before the court without a 
jury, a finéing and Judgment in plaintiff's favor and defendant 

| appeals, 

Plaintiff haa moved to dismies the appeal on the ground that 
the notice of appeal was not filed within five days after the rendition 
ef the judgment nor within five daye after defendant's motion te 
vacate the judgment wae denied, ae required by $16, eh. 57, Ill. Rev, 
State, 1959, 

The record discloses that the notice of appeal was served 
108 days after the entry of the judgment for posseseion and 65 days 
after the denial of defendant's motion to vacate the Judgment. 

& foreible detainer section is & special statutory proceeding 
summary in ite nature and in derogation of the common law, Wentworth | 
v. Sankstone, 233 I11. App. 48; Oity of Chicago v. The Chisago ‘teaa- 


hip Lines, Ine., 328 Ill. 309. | 
The appeal not having been taken within the time limited in 


§18 of the Forelble Detainer Act, it must be dismissed, entworth v. 
Sankstone, 233 111. App. 48; Gholston v. Terrell, 292 Ill. App. 192 
(10 HE, And, 868.). 

APPEAL DISMISSED, 
Matchett, J., and MeSurely, J., concur, 






‘pe ry 





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41205 





. 236 


MR, paRSIDING JUSTICE O'GONNOR PELIVERED THE GPINION > COURT, 


Plaintiff brought an action against defendant to recover 
Gamages for personal injuries claimed to have been sustained by him on 
account of the negligence of one of defendant's agente in driving an 
automobile. There was a jury trial, a verdict and judgment in plain- 
tiff's favor for $1350, and defendant appeals, 

The record discloses that about two o'clock on the afternoon 
of April 3, 1937, plaintiff, who was then about 37 years old and had 
been employed for some tine as chief claim examiner for the Lumbermens 
Mutual Casualty Company, went to defendant's place of businese located 
at Sheridan road and Lawrence avenue, Chicago, to see about buying an 
automobile, William H. Becker, who wee then about 36 yeare old, one 
of defendant's employees, took plaintiff in an automobile to demon- 
strate the working of the make of car which plaintiff was contemplating 
purchasing. 

Plaintiff's theory of the care is that he was sitting on the 
seat at the right hand of Becker who wae driving the automobile at 
about SO miles an hour, south in Broadway, and when they had gone a 
block to the next cross street, Becker applied his brakes, the car 
stopped suddenly and plaintiff wae thrown against the windshield, in- 
juring hie head and shoulder, 

On the other side, defendant's theory is thet as the auto- 
mobile apsroached the first cross street, it was going about 3 miles 
an hour end came to a gentle stop; that “plaintiff waa sitting off 
balance and fell against the windshield, and that there * a very 
slight injury, if any.* 





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-2- 

The two men who vere in the automobile testified, plain- 
tiff's testimony tending tc support his theory of the case while the 
testimony of the driver of the car, Hecker, supported defendant's 
thecry of the case, There was also a dispute in the evidence as to 
whether the brakes of the automobile were in good condition. 

Defendant contends the verdict is against the sanifeat 
weight of the evidence, should be set aside and the judgment reversed, 
We have considered the teetinony of the two witnesses on this question 
and are of opinion we would not be warranted in disturbing the verdict 
in plaintiff's favor, approved as it wae by the trial judge, on the 
ground that the verdict is against the manifest weight of the evidence, 

Defendant further contends the judgment is excessive; that 
plaintiff suffered little or no injuries and was only laid up about 
three days. 

The accident happened between two and three o'cleck on the 
afternoon of April 3, which wae Saturday. Plaintiff's evidence is to 
the effect that after he was thrown against the windshield he became 
nauseated - that he was dazed; that Secker, the driver, a few minutes 
efter the car stopped asked him how he felt; that he replied he was 
@izzy and stunned; that they then drove around a block or two and then 
plaintiff took the wheel and drove a short dietance to the gaz 
station, the place from which they had started; thet he sat dewn on 
the front bumper five or ten minutes, then got in his own car which he 
had parked nearby and started to hie home in Evanston. He drove over 
te the Loyola elevated station, about two miles from plaintiff's place 
of business, stayed there awhile but feeling 111 he left his car, got 
inte a Yellow Cab and was 4riven to hie heme in Fvanston [about two 
miles]; that “I lay down awhile feeling the came way." That Dr. Weise 
came to see him later on Saturday afternoon and preseribed heat to the 
shoulder, ice bag to the head, and a sedative, nembutol, The doctor 
caue Sundsy, Monday and Tuesday, taped hie right shoulder and told him 
to stay at home and lie down; that he returned te work on. Thursday 
morning following the accident, ‘Several times after that I came down 





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<3- 

late and left the office early. I lost altogether the total of ten 
daye, including part daye;* that for a few weeks he had an extremely 
sore back, blinding headaches and hie right shoulder was sore; that 
afterward he went to cee the doctor a number of times, The doctor 
gave him some heat treatments for the shoulder; that he had a bad 
accident in October, 1954. “The principal injury was #2 crughing injury 
to my left side near the back bone, about six or eight ribs were 
erushed, Phere was injury to my right shoulder ané to my head;" that 
he was making $3CO a zenth; that he sew Dr, Weise several weeks after 
the accident, 

Dr, Welas testified he saw plaintiff April 3, examined him; 
that the subjective symptoma “were miusea, he complained of Gizvitess, 
hasiness, severe headache, pain if the right shoulder and right cheet, * 
That the objective findings were moderate shock, fast pulse, “profuse 
porepiring, large hemotoma on the right forehead, ten¢ceriesm over the 
right shoulder, and the upper right chest." That his diagnosis was 
“gerebral conoussion and sprain of the right shoulder and the mueeles 
of the neck and right eide;" that he preseribed heat forthe shoulder, 
an ice pack for the head and a sedative; that he afterward saw plain- 
tiff a number of times at plaintiff's home and at the doctor's office 
when he “gave him macsage and diathermy to the right shoulder;"* that 
he examined the plaintiff two weeks before the trial which began 
Monday, September 11, 1939 [two and one~half years after the accident), 
and “detected evidence of erepitation in the shoulder joint, a 
erackling sensation imparted te the ear through the stethoscope* and 
gave as hie opinion that the injury received might or could cause 
plaintiff's condition; that in hie opinion plaintiff's present con- 
dition was permanent “Seceause there is apparently damage to the 
structures of the shoulder joint* and that plaintiff paid him $100 in 
August, 1953, 


Vpon a consideration of all the evidenee in the record we 
are of opinion we would net be warranted in disturbing the verdict on 


— 


* 


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ae —— 


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~4~ 
the ground that the damages assecsed were exoescsive, 

The defendant contends "There was serious errer in the 
court's rulings ae to medical evidence.* The doctor was asked to ex- 
plain “cerebral concussion," There were some objections back and 
forth and the witness's answer stricken out. 

Further complaint is made to the testimony of the doctor, 
| that he found there was « creaking of plaintiff's shoulder and the 
doctor gave his opinion that the injury might or could cease slaintiff's 
condition. The errors, if any, were clearly not reversibly erroneous, 

Defendant further contends the court erred in giving an 
inetruction at plaintiff's request. The instruction to1a the jury thet 
if they found in plaintiff's favor that he had sustained injuries ae 
alleged in hie complaint and, ae a direct cause thereof, *he was un- 
able for a period of time to work or engage in his usual occupation, 
then the fact thet hie employer continued to pay him his wager or 
salary during such period is not to be considered by you in as#essing 
the plaintiff's damages, if any, because the gratuitous payment in 
such circumstances" would not preclude recovery. It is said the in- 
struction was erroneous because “it assumes that there were gratuitous 
payments, and though the man was off work only three days the Jury 
from the language of the instruction might assume that they could 
astese damages for a long period of time while the plaintiff was un- 
able to perform his full duties, though he may have been on the job 
and receiving full pay.* 

We think the giving of the instruction does not warrant a 


reversal, O'Brien v. Chicago City Ry, Co., 505 I11, 244; Hoobler v. 
Yoelpel, 246 Ill. App. 69. In the O'Brien case the court said: "No 


injustice is done to a person negligently injuring another in re- 
quiring him to pay the full amount of damages for which he ie legally 
liable without deduction for compensation which the injured person may 


receive from another source which has no connection with the negligence, 


whether thet source is a claim for compensation against hie employer, 


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Aano eh ed dots aot segamad to Sawona (Lert ostt ys oF whe ytekep 
yan aoareq Sewtat ef¥ doldw moltaaneqmooe vot seltoubed tuektly. eidakl 






— edt ABiw netzevanoo on ead Hotdw somoR nñ . 





-5- 
a policy of insurance againet accidents, a life ineuranece policy, a 
benefit from a fraternal organization or a gift from a friend, * 

Moreover, we think the amount plaintiff received for the 
three or ten days he did not work is trivial and ought not to work a 
reversal, 

The judgement of the Superior court of Cook county is 
affirmed, 

JUDGHERT AFFIRMED, 


Matehett, J., and MeSurely, J., concur, 


*· 

& — Cone ten: WEEE ν tuntnge: Seuiteelllt tenga 

oS paetet @ — — —⸗ laeroc⸗rr⸗ mort en⸗⸗⸗⸗ 

alu) Jette tenreee o Sega wale Pn 

—— — Sood Ye twee ToltoqNe ode to dwemybut ede 

. * a ee eitnzedy 8o Qellewen © atid air satin 
——— | ee eee te ah 

| SEARED OS Sp CEE Reais ts ¥ V— — vate ‘Ulouwtew baw , —XE 


| fa QHehy ol been tone ect sewed carer? Seekee Rei Ae 
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oH pie et fahares fat ed sald Govet oe Stiente hy i Dotan) seat } 
ay oe a” eae apne Segitt o se ~hee cotton eat at Segedthe 
OG ED Kei 2té Yl Ree Se eee UP Geer Re eave 2 eek Oak 

2% Sine “id ah Ya ot Beeeddawe aoyetome wht sae Foyt deol — — 
WARREN tat nee owe owen cw edad et Sobuhy coer ginnined yoktaie 
ay omit Ret ieeey of ee Ge gee ey 

a0! 9 Sek A OT ree UNE ie hiner *eeenmerememe ten aale 
Teel Re Behe! wet tac eee 22% eavaded — — 2c 
Stet tl we vee eee dyed TSO Re eee Pe ES 
aloe vee! 2 ye eee Dee a Mane RO. veer ot ms 
ee re ee ee ee ea 
0 aie ae il pe talk eg elhet ink hat — ⸗ 
* to tet etal hate 

* Toe Tee Neo aettomre end edit ae ganna eee abe et —D— 
ee eee ee —— 
eS Loe eet oe seam SaLshith nt-eer ae canker 

wnt ry wet ems Be Tew hme Ae Sa REE B at se ac” a 
Gifenel Oh ei eee set See See Limit att qa ae ee aerenp 
{an adhere Sees) we dolve cobteanqgres ek eorfacde Suet be widest 
sonagiiqua <i? atiw eadiooaese on gad melmw! donncs os ome met evinast 
AO wLGM 94K teckaye aeEenanngnon met mieten — dt: 

















41181 
FOOTE BROTHERS GEAR AND — 







* * 
oe ¥ 


CORPORATION, a pom 
| FROM 






ped 
; /MUNIGIPAL COURT 





OF CHICAGO, 


kK? 14.237 


MA, JUSTICE MeSURELY DELIVERED THE OPINION OF THE COURT, 


Corpo ation, 


— 


Defendant appeals from an adverse judgment of §1'755,40 
entered upon a verdict direeted by the court. 

Plaintiff's statement of claim alleged the sale by it to 
defendant of a number of ‘Worm gear reducers complete with motors; " 
that these were shipped to defendant; that the tetal amount of the 
shipments for which defendant has failed to pay the plaintiff amounts 
to $1755.40, Defendant filed an amended affidavit of defense, and 
counterclaim for damages; the court on motion struck the counterclaim 
of defendant and the case went to trial. The judge ruled that defend- 
ant must firet proceed with its evidence, No evidence was offered by 
plaintiff, and at the close of the evidence offered by defendant a 
peremptory instruction was given to the jury to find for plaintiff for 
the amount claimed and judgment was entered against defendant. 

Stated briefly the affidavit ef defense and counterclain 
alleged that defendant purchased from plaintiff a sample motor and 
gear reducer for a specific purpose which was made known to the plain- 
tiff; that the motor and reducer were required “to pull 20 gage ma- 
terial;" thet the sample purchased performed this work but that there- 
after, with the exception of two of the twenty-four motors and gear 
reducers purchased by defendant, to equal the sample, they 41d not 
Operate or perform the work as the sample had done; that plaintiff was 
notified of the failure of these units to work properly and, at the 
_ request of plaintiff, fourteen of there were returned by defendant to 
plaintiff; that certain of the machines in which these units had been 
installed were sold by defendant et a greatly reduced price by reason 
of these defects; that representatives of plaintiff saw the unite in 








wont & 
‘emioo tAarorm 
.OBADTRD YO 


«88. 


————— ———— 
Od G9 16 to snemgbul seteviu as sort elseqqs taabneted 
,t7He9 sey Ya Besoowts Jolhaey a noqu heretne 
ot 32 yC olae off begolls alelo Yo Inemetage a titvatalrt | 
*;exotom dtiw efeiqmes sieesber 1809 wi0%" Yo aedawa a to taabdbneted 
ss gtit Re Ansoms Saved edt tas? itnabasted of doggie exew eued? tact 
 atavome Thinielq edd yaq of belts? nad tasbneteb doldw tot ataemgide 
shia eanm eb to FivablTie behsems aa belt? Snabasted .0b.88TL% of 
alelexetaven ef? dowida moftom mo Sauo0 es jsegamsh tot mtalorednweo 
~haeteb Jact beivx egbut, ef? fetid of Snow ease ocd baz ¢nabneted to 
Yd Bexstte asw consbive of .oanebive at! ditty hoooong gers deum tan 
sf Faabao ted YW Rers?te somobive edt Yo onelo adt ta hae ,Uttentalg 
qe Yiteataly 1% Dat? of yuwt, ed? of nevly saw mottoustent yrotquexeq 
' -tnahaeted taniags berstas nsw tacughul, has hentelo tawome ent 
atelorstaveo bas canetsh Yo Sivabltte of? YLtetad berate , 
san: shin inlanenh-ce Rtatineanine see nenninienin ease . 
(wGlelg ace ef mvond ebam saw coldy exoqug ofttoege a so teomben aa0g | 
9 ~a8 aay Of fing of" botlwper etew se98nbet bnew totem ed? tade (Rts 
=sred? Fads tod ssow ald? bamrotaeq Seaadouwg efquae off tad? “;Latcet 
1803 bua e190 qwOr-_eneWs od? Yo owt Yo mottqnoxe oat Attw yxerta 
don Bib yod? ,efquae end Leupe oF ,tnabneteb yd devatowg steowbet 
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seid tn baw YLxogoug Sow of e@taw ened? Yo etwlte? edt Yo Bestévon 
od tnabasteb yt beriutet exew ared? to seetayot Nꝛtataſa te taenpex 
Mood Bad atins ened? dotdy nt sentdoam od? Yo a⸗asaoo aau⸗ muaiala 
sosaer yd cotuq booubsa xAs aexa s 3 Saabaeteb we blo orew bell gant 
| at attnw ect wan Widatele Yo sovitetnesorges fade pad ob 





ee ee 







~2= 

operation ané admitted they were not according te the sample, The 
counterclaim contained an itemized statement of damages claimed by de- 
fendant on account of the failure of the unite purchased to operate 
properly. 

Plaintiff argues that the court properly struck this counter- 
Claim as it did not fully ané specifically allege ultimate facts and 
the items of damage, Inepection of the counterclaim dees not support 
this charge as the items claimed are fully and specifically itemized, 

Plaintiff eays the theory of the counterclaim wae incon- 
sistest with the theory of the etatement of defense. There is no 
merit in this, The counterclaim adopte the allegations contained in 
the statement of defense and there is no inconeletency between the 
denial of the amount claimed to be due and the claim of damages ac- 
eruing to defendant because of the imperfect units subsequently deliver 
ed to defendant. It was error to strike the counterclaia, 

Defendant complains of the action of the trial court in 
requiring it te proceed first with its evidence, FPlaintiff introduced 
no evidence, A defendant ia properly required to introduce its evi- 
Gence first when a prima facie case for the plaintiff has been 
established, Santa Rosa-Vallejo Tanning Co. v. Kronauer, 228 Ill. App, 
236, Here the plaintiff's statement of claim alleged the purchase and 
delivery by it to defendant of units at the prices specified in the 
statement, with an affidavit that the tetal amount due for these 
shipments was $1755.40. ‘The affidavit of defense merely denies that 
there ie due plaintiff this amount but does not deny the purchase, 
shipments or prices, Seetion 40 of the Practice act (chap. 110) re- 
quires that ‘every anewer and subsequent pleading shall contain an 
explicit admission or denial of each allegation of the pleading to 
which it relates," Under these pleadings plaintiff established a 
prima facie case and the burden then was upon defendant to establish 
an affirmative defenee, 

Plaintiff says defendant 414 not return any of these unite 
said to be imperfect, The evidence, however, shows that these were 


ad? ,eiquas olf of gatbroovs sen stew yest bettinbe has mos 
-sb ud dentate voqaunh 16 Saamesata beatae’ 0 Den tadaoo atstéxétinde 
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bas ‘ioe? otamta iy gate ¥LLaestiovge bas ylivt ton 526 ¢2 ae mtale 
droqque ton a80b mialoternwes aff to aotfoowenl ,epemeb to ewere ede 
.bosimatt YLfaoltioage finn YLLA ots Bemtsfo omet: edt a2 egrado atdd 
-noont ssw ateloretases oft to wroedd aff ayaa PtigatefT — ove” 
on af xsd? panoteh 6 tuemetets off Yo Yroeds edd Witty testate 
ah bentadace enoifagetia eft etyohe wtaloretawod ed? olde ‘it tion 


| tld neovded Yoneds tenoont on af exett haa eaneteb to saemeratn edt 
“+08 togamsh to otwle ad? fins exh of of bomtale taveus edt to fétaes 


evilab yitnoupeados stinu tootveqnt ont Yo eauaded Saabmoted of {alwid 
“misfovstages ad? oxtegs 09 <orte eaw tT — 

— aAl Stee Lalte edt to notvea edv to dutafqnon taabsiersa "7° 
beowServal Iiseksll ,eoanshive ef! Atv tetkt Heooorg of FL yalthupet 
-ivo af! sovbortal of heatyper ylregorg ef ¢sabieteh A jeonsbive on 
need nad Ttitataly of? 16? gene ston? anfrq & med edt? ested 

aqé .Lf1 G8 xosenotk .v 99 getama? of eLig'~seot ngnae jnedetidades 
bao sesdoutg eff Segelie misie to txemetars e'Tiitntele emf ote 868 
at at Batthooqe onobr¢g sit te wHiaw Yo Pashnsted od Ht ye yROwEtes 
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tant Stites YLloren seneteh Yo ¢ivabsYia omF 10d STNG dw atdengide 
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na mie®noe Iiade gethawle teeuperdsd fae towens prevs® ‘tadt @erlep 
od Qafbasig of? Te dottegetia dose 16 Latneb 46 AGteermba 2 BOLIQNS 
& Serinkidatae Yitataly egatseels eeedd GodA0 “ ,2etalet If deta 
telidades ef tnabnetes noqe asw west — ad? Son san olost subiq 


— 


e n seeds G6 eta weetox tan ———— —— * 
bron Gaedd sat swore \tovewed lesHebive ‘edt © Sbotesgal od 











-5- 
Gelivered to the manufacturer of them as requested by plaintiff, 

There were a number of cueetions of fact which should have 
been submitted to the jury for determination, Defendant concedes 
that some of the unite worked according to the sample but there were 
queetione of fact concerning other units as te whether they worked 
according to sample and whether this caused expense and damage to 
defendant, and whether they were returned by Gefendant, UOefendant 
had a right to accept the unite which worked and to reject those 
which G14 not work, with ensuing damages, 

Many technical pointe are raised coneerning the pleadings 
and competency of evidence upon which it is unnecessary to comment, 
The controlling controverted points relate to the facts, which should 
be submitted to a jury. 

The judgment is therefore reversed and the cause remanded 
for a new trial, 

REVERSED AND REMANDED, 
O'Connor, P.d,., and Matehett,J,, concur, 





»Tildiataly yd Setaevper ae aed? te aeqetealuans edd of borsrtie 
 eved Diveda dotdw fost Ye anotieeup Iq-xsdeen 4 etew otemT. 6 o> 
aeboenoe Inabasted ,medsanierissed ret yast edt of bedtindae need 
viow esedd Sud elques od? of gatbieces badtow atta ed? Yo emoe tad? 
| Bediow tod? asdiedw of oe afiaw aed?e gnianeened Seat to anolsaeup 
of egscah bas esneqes besuae eid? s9eddety Sea efqmae of gatbaeoss 
 dhabaete® .tashaeted yd boaretTe etew yoda? «edtedw hag ,tnadacted 
eeogeenh gatwene déiw ,diow gon S26 dotdw 
apatheelq ad? gatanensoo Seaiat eva statog Leotndosd Yast © os )5 1) 
(—«Smemmoe of Cremeseenay af F2 dokdy soqu oonebive to youeteqnos/bis 
 piueste detdw yatoat ede of s¢aLor statog Settevertsoo gatsiowaes eat 
| —* * it ot ea aetwh 2 of bettindumed 
po bebreaet samo ald bas Deevevet sxeteieds af taomghyt edt .» pabtte Me 
+ eT 
| GEM EAN SA dad cuanmvan. et? ta antelquon daebsierad’ 
stwenoe ,Wystedoral bas ,.bsF yzonnedte 
ley —— bavgt ea jm jpeten tiemmed of seadewtet A ed 
7 Poet dene nee niet pad eee Glen | 
haste t Shadtala 


seeeatnsr AU Sate hy wi ese «= OR 









* “3 Wehr fhe Wah Pein ate ad OFF nate 
yest ghia ithe aa wiht GeRee 

# <i ¢ ‘ F ‘ A PP et hou at she oe avr THe ot doug tate 
8 Mi 

oud Iveco, G20o Pettohele’ ab af oomely 6 Pagan 

— — oa to . —— —E 
nite weg Yaatd WPAERD 
— (O2in tees Te Re We rehte abe RES 
* eo hrnlonk oF dete : 


* 





41191 


PRANK J. HART, é 
appelLanty” 


j 
JOSEPH 3, DUNCAN, £.-—. 






ve 
QOURT, 


 Appe 7 px guns 
MR, JUSTICE MeSURELY DELIVERED THE — — aye rf — 
Le 23 


Plaintiff was employed by defendant ae secretary for some 


ee a eee ee — ee ee? 





ten years; the employment terminated in September, 1909; plaintiff 
then brought thie suit seeking to recover $41,156,46 as additional 
compensation for services rendered by him alleged to be outside the 
eseope of his duties unéer his contract of employment, Plaintiff's 
second amended complaint upon motion of defendant was dismissed; 
plaintiff asked leave to file an amendment te his second amended com- 
plaint, which motion was denied. He appeals from these ordere, 

The motion to dismiss asserted that the eervices rendered by 
plaintiff were within the scope of hie employment; that there was no 
express or implied promise by defendant to pay plaintiff any extre 
compensation and that the claim is barred by the statute of limi- 
tations, 

In 1927, defendant advertised in the Chicago Tribune for a 
*Seeretary;"* information was requested ae to experience, references and 
selary expected; the advertisement further stated - “Young man who has 
some knowledge of bookkeeping and stenography and, preferably, had some 
experience in the buying and selling of bonds and stocks,“ Plaintiff 
replied to this, writing a letter, stating that he had been employed 
for fourteen yeare as secretary to a Mr, Rend who dealt largely in 
securities, trading constantly, taking profits and making changes in 
hie list. Plaintiff further stated in his letter that he had devised 
& reeora system which had received favorable commente from banks, 
brokers and bond men; that he executed all trades that Mr. Hend made, 
looking after his intereste and dividend payments, hie correspondence 
and banking, and performed “other secretarial duties too numerous to 





omen 10% —— rr — thabastes ] hoyotaas » naw y. 


i & ek , 34 —A 
ttitntiele fener ‘tadmetqe? at Beg antwxs? Poamyetane od? ye not 


—* StS — — 
fanct?thba aa 9b .88L,19¢ tevooes of Batons thue ebst — nest? 


fraser Oy j 
eit abietye od ot bagel is abd we borebacr seolvies col wets — 
9 ke Ba: 
e'Ptitntels staemyolqne to toaxdneo ad rebaw noltub yg agen eqoos | 
eresiaoe sadd —** : 
“peaelmelh ta tnabnetes ‘to sotton: * Jatalquos bebsoma 
; ers @ Ff sort ey Aa 
“HO — baooes sid oe Soesbaoms ma eflt of svasl a q 


nid Sees 


etebs0 ened? mort —— ol —— aav pags dotsiw Intela 
‘yd Sevebs]s aeolvien eft tad? befteses aalmelh of molar — 
’ om Saw ered? taut {inenyetque aid te eqoee edt abdtiw oLew Nuau⸗ta | 
>” ghia ‘qha’ Vettntate yoq ot’ teakawtah Wl volaeen bailed “Se eaorge 
“tt 20 etatade edt Wi Bevxed ef alale edt tad? ban nottanmeqnos 
A T6% stwdinT ogsold? edt af besttuevia Ynabaoteb .TSe!l at weir 
, asonore ted conelteqxe of Sa betesuper sew mois acrao tal * retareroec” 
a of nam gasor*® + botate aeitiwl tenemealiicevba off ibetoecxs visiss 
—* bart ,Uiderstorq baa ydqargonete baa gatqoeedsood to sabe lwond oaoe 
Aetentata *.edeets has abnod to galiiea Sas gatyad edt at conetreqs 
- pevolame need Bast of todd galtate yrettel a anitiqw ,aldd of botiger 
nat yleogtal tieed odw bast 1M 8 OF Ytateroes aa exa0y neotauot x02 
ai acanads ynidee Sas atitewy gotsed? ,yf[tnatanes galbuad sserd tauoee 
bestveb had sd tan? etvel etd at dotate ronda — tnt ote 
~adaad mout stagmmen ofdatovat Sev toot bed fet r moree oor 
eban bao ,i sad? sebart [fa Betusexe ed tant ‘ 






Wa 


« avocenun oo? seltub tatstorees rodeo 


aR 


{ 


-2- 

mention here.‘ To this defendant replied saying that the "experience 
you have had seems toe be very much in line with the work I have in 
mind fer you, * 

4n interview followed in which plaintiff again detailed hie 
work as assistant to Mr. Nend, Defendant stated that if he employed 
plaintiff he would expect plaintiff te study reports of financial 
services, call defendant's attention to any recommendation that ap- 
peared therein concerning securities and to assist defendant in making 
his selection of securities, Defendant then proposed to pay plaintiff 
$75 a week for his services, to which plaintiff replied that he hoped 
he might be entitled to more in the future if hie work was satis- 
factory. 

Plaintiff's complaint itemizes four services performed by 
him for defendant which plaintiff claime were extra or additional 
services to those covered by the terms of his employment, The first 
item is the preparation of income tax returns for defendant and his 
wife, Practically all of the information necessary for the prepar- 
ation of theese income tax returns would be found in the accounte which 
plaintiff wae required to keep. The tax returns would be taken from 
these accounte and would require the usual secretarial work, 

Plaintiff claims he was entitled to additional compensation 
for his services in connection with the Andes Copper Mining securities; 
that while defendant wae away a broker urged plaintiff to cable de- 
fendant to sell at a certain figure all the debentures of thie 
company; that plaintiff had special and confidential information as to 
the value of these debentures and did not advise defendant to make 
such sale; that thereafter they were converted into stock which wae 
sold at a profit of over $16,000 for defendant, Plaintiff clains 
#5000 as additional compensation for such services, 

Another itm of service for which plaintiff claims additional 
compensation ia the giving by plaintiff to defendant of information 
concerning the value of securities in the Tax Security Corporation 
whereby defendant recovered a substantial amount in settlement. Plain- 


<B- 
gonetveqxe” off Sadd galyse Seliger tnahneteb ald? oT * ,oted nolinen 
al evad I avow od? cttw emai al doum yxev ed of amoos bad évad wor 
"MOY tet bate 
ald Selleteb ategs Ttidnialg doidw al Sewollo? welviesah MA 6 ono 
beryolaqwo of th Sant betate @oabustet hac ,aN ‘of Snagutecs as d#10w 
intoaaatt Yo staeqer Yate oF TWisatala sooyxe bivow od Wisqtala 
“qa $403 aoltaSneameoe: yYns of aeoliaesta a! tushaeted flee s2oolvies 
Bitdam al tqakoeteh tatese of ban selzixuoes gatmreonos aloueds dorseq 
Tiisgatalg Yeq oF Heaoqorg aos —— atv tquoee ad sotiooles abs 
Seqost en aau⸗ bot igen miantala dokdw o8 —B ‘gtd tot doow « av9 
~aitee enw fuow aid 2 owtwt ed? at erom oa botettae als od 


her 





v bamrotieg seotvase wet soxtmodt tntelquoo ‘a'titgatala — 
lenoisihhs ao auexe evew omlale Yitalalg dotdw tnabnoted 10 ta 

tact? ecf .tuemyoique ald to amxes ent ys Betevoo exodi of sdolvaes 
a tel bas tnabneted 102 antutex xed moon! Yo notteraqorg edd? at mot 
-isqsig off tol y1asRe0en ao ta ams ii ant to Lie Uleottowst jathy 
Motre atavooos oft at bauer ef bivew enwitet xe? emoont sasdt to aelta 
tort neds? of Bivow amutes xa¢ oc? .qoed of Betiwper saw Viidalalg 
ivy iadrsdeuses Laue edd ottuper Bivow bas stawosda onodt 

| Hols saseqaao Lanett hha of belgtene saw od antalo Nuatar 
—D— pata ‘raqqoo —— ant da tw not ooanoo ab teotvebe “ald x 102 
-sb sfdao of Y8tntale begaw usdotd 8 Yous anv suabasted "eiitdw tadd 

ald? to seiwtnsdeb eat Ifa euvglt atedr0o 6 ga ffea 0? tnabast 

ot an “pekiamretat [atinedi ines Pas iatoega bad Moeaiata gad “yenaagien 
stan of tnabas tab oetvba gon bib Bas somutaedeb ened to oulav ad? 
asy dotdw sooga otnt betxevace anew veda rol teoradd ‘tad jets coun 
* guteto Trds28!4 tnabnotes 10? 000,818 reve to ¢ttery a va bLon 
s2901V408 dows 107 mo t#aaasquoo — Eanold the’ ‘a ald 
tanotesbna autalo 22fdatelq etdw x0? ootvien to nett reddonh — — 
nottamrotns to Snabaered of miaaiata —— ot ‘at — 
— net aaogiod ———— xs? ait at | neitinwoes Yo © on , oat on ne D4 ‘2 


r ra? & meseergys' Teg Act ty LP) 
— ——— ‘tnuems dattoutuans a Srusreess Fr : 








-3- 
tiff claims an additional compensation of #5009 for — service, 

Plaintiff next alleges he learned that bankruptey pro- 
ceedings were pending againet the ‘cLlellan Stores Company, a Delaware 
corporation; that after making diligent search plaintiff concluded 
that the market value of the stock was far below ite intrinsic value, 
Plaintiff thereupon persuaded defendant to purehase some of the stock 
of this company and from thie purchase realized a large profit. Plaine 
tiff claims $26,136.46 as additional compensation, 

We are of the opinion that all of these services were within 
the scope of plaintiff's employment. He wae required to keep accounts 
of all bonds, stocks and securities owned or acquired by defendant or 
his wife; also to perform all clerical vork in connection with the 
purchaee and gale of all bonde and stocks, It was part of plaintiff's 
duties to call defendant's attention to information appearing in the 
financial reports relating to securities. In the letter which plain- 
tiff wrote in anewer to defendant's advertisement, plaintiff related 
in detail the character of his services to Mr. Rend, his former em- 
ployer. These deseribe the activities of Mr, Hend with reference to 
securities, and plaintiff set forth his familiarity with theee 
activities; that in addition to keeping the account of Mr. Rend's 
securities he executed all trades in these securities, It is con- 
Vincingly shown in the letter by plaintiff to defendant and in the 
eonvergation between the parties ae to the duties and terms of em- 
ployment, that all of the matters for which additional compensation is 
sought were fully covered and included in plaintiff's duties, 

Plaintiff cites cases where it has been held that where 
extra servicee are performed entirely without the sphere of the 
service for which the contract was made, the law will imply an agree- 
ment for extra compensation, In Hathison v. N. ¥. ©. & i, R. Co., 

76 N.¥.8, 89, an employee's duties required him to inepect engines and 


run them in cases of emergencies; he was requested to and did run a 
switch engine four or five times each day for about sixteen months; he 





entre: ald "o% 00069 to motvennequed Lani? hha nw aekalo Trt 
~ery. yotqurinad tad? honsaet sf eegedfs @xen YMWiafT 
etawele’ so ,yneqwoD serot! nalledoM edd fantaga gnibaeq #ttw ahtbeeo 
hebylonon Witalalg sexes Greg hls gutdem vetta Pads Ynoltatoqro0 
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Zoove at Io anos evarinusg of fandiaated Sebsweteg moquevat? TLtobelt 
—ialt ,¢itowg sywel a Bestlae: seston aldt most bee yabgneo ehMt Yo 
r ert -MOMaoregioe LesoltihdSa aa 84,861,089 emlato Brite 
NLGtiw ovew Goolvtes ererty To [ie Catt nolatge ee Yo wre o> 8 oho 
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10 SHRBROIES YS Dortupon xo Benwe welstaves® bak axooee’ jebsod Ma v 
st tw mottoonnoe nt Xxow Isotuelo [le mrotieq of oats jettw eta 
‘a! TRentelg to dray vow 71 .edoota bas! ebned Tis t6 blab’ hae evadoing 
oft mt giiteoqes moltamrotn? of selsnotea al taabaoted Lise or welticé 
| ettbalG Moldw.ce8tel edt nl jeotttanosd of yhttaler etadqer’ Latenant? 
— beteler Tttataly ,tReneeteaevda a smadnered of aewens al etotw Tks 
-mo ssevet sit ,bmet sa" of seotvase eld 10 Tedestads Oh? Ttated' at 
of eenertetes ditty Baek .4h Yo awteivites adv odtxeeed ened?  i1eyory 
| ated? diiw YFlastitmat etd dtxot rea Vidatale baw’ word bavoee | 
ethno sa To tneecee odd gniqeed ef mote Lhe nb tat? yeore theese 
-a00 of 31 Veettiuwsea enad? wi eokea? Dis betuoens ad 2eL¢ Lavoee 
go wt Bad tnabneted oF TieMtesG’ yes ete AT ene AL mesMNORTgdtonn’ 
“me te amney Baa eolcuh arid ot ee eplitaae en? rooted nottavaeveios 
al nofsaetoqmos {enol Ihde doldw to® sxestam eds Ye Tle! sans \saemyors 
Belge e'ttigetala af bebelant Sas bovavoo ‘tlivt otew taguot 
oredw fade Bled need aad tt ected wetae sorte Tetedtale ants ante 
ast Yo egedge edt tradtiw yFouttne Sewtotesy sis osetress ais 
-so1ge ma ylgmt [ftw wal off 6bac Haw Seats mee “es9 “AbLiw aot setvace 
. 99.8 08 & 0. 4Yuw ov sopgdiegt at “aottnameaxoo etéxe 10? tno 
Ana soatgao toedeal ot std bortupor so£96b at eoyoltqnin ae (8 OI ” 
A niet BEB ina od Beddeuped saw’ ait iastonogtone ‘0b a aot ve 


Med 
od iadi¢non aeedxie —* 3 we doae emit evtt 10 Stuer” | 
wAtoanl® Ames md Tri ities berwrooe — 







4 

brought suit for extra compensation for the additional services of 
running the switeh engine and obtained judgment in the trial court; 
this was reversed upon appeal and the court well stated the prineiple 
controlling, After noting that the law would imply an agreement for 
extra compensation, the opinion says, “Thie rule is based upon the 
probability that for such service there was an intention on the part 
of the master to pay extra compensation, upen which the servant might 
rely. Hut this rule must be cautiously applied, and the service must 
be so far outside of the sphere of the employment ae to indicate a 
probable intention on the part of the master to allow extra compen- 
gation therefor. If the question be one of doubt, the right to extra 
compengation should rest only upon an express agreement. Any other 
rule of law would introduce dangerous uncertainty and instability 
into all contracts of service.” This was followed in Hurray v. John 
Griffiths & Son, 95 N.Y.5. 573, where 1t was said that proof of a new 
agreement to pay extra compensation was essential; that “To hold other- 





wise would be to require employers to have specifically enumerated and 
definitely catalogued, at the time of the hiring, every simple service 
the proposed employe might be called upon to perform, lest ingenuity 
gould subsequently differentiate between eervices, so as to create 
additional liabilities." To the same effect are Voorhees v. ixecutors 
ef Woodhull, 53 N.J.L. 494, and Robinette v. Hubbard Coal Mining Co., 
88 W. Va, 614, 619, 

It 16 undoubtedly true, as stated by plaintiff's counsel, 
that the motion to Giemiss admits the truth of all allegations in the 
complaint which are well pleaded, but this admite only the facts 
stated in the complaint to be true and does not admit that the plain- 
tiff is entitled to recover. Whalen v. Twin Oity Barge & Gravel Co. 
280 Ill. App. 696, 610, | 

Plaintiff claims extra compeneation for services rendered 
over a period of ten years, during which time he received his regular 
salary and made no claim of any kind that he was entitled to any furtha 
compensation, In Levi v. Reid, 91 Ill, App. 430, plaintiff sought 





Cc! 


Te esolvase Janets aba edd set soligeneqnoe aixe 10% tive JIdawoud 
i@umeo tetas ead af @aangbul, beniasde baa ealgae dotive eft galnnws 
aigioniay of hetete iLew suyoe ed? dns Laegga nogu Doeteves say atdz 
102 Iaemporgs wa yiqut Dinew wal edd tad? galton,tevtA, .gatilontngr 
add moqy beaad af oLws iat’ ,eyee sotatgo od? ,nolisanoquoo, artze 
fuag off a0 aoldnetat oa say sexed? eotvess dowa sol tact yotLtdedorg 

_ tigie tasvies eff doldy aoqu ,notsaaneqnoe otkne Yaq of aogaaa edt te 
toum solvies ott bos shetiogs Yamelsues od toum Lua ated tut. olen 
a odeoihak ot of Samayolgra gcd Be etedge od? to obigtue xt 08 ed 

_ eeGtOD aatxe wells of aetaam edit to tang edt ap sostnetal pidsdong 
axtxe of tiyix odd .aguob to eae od sottnoup of 21 ,zotexedd sottas 
‘vedgo Yok .Joomewtga eaoigxe os mogu Line seer Diveda solvanmeqnpe 
Wilidedans bas yWalesisoaw sworsgnsh souboxsa! bivew wal to eLus 
asioh «7 A af Dewel{or amy ata? * .0lva—e, — 


wands, bLod. of’. * —— Baw ————— —— 
bie hetaxcawae YLiseitioega svad of sxevolque oxtupen oF od. biuoyoaty 
solvaea siguia yteve ,galtid edd Yo omds odd ta ,bougolatan xletsatted 
 Wisweged Gael \wretxeg of aoge besiao od tagtn oyelqus Devogong exit 
siaeze of G8 om ,asoivien apowted staisgasrettts yisgaeupesdua, dine 
— anse of OF, * .wottitidall iampsethpe 
DD BULLY S02 baedsyl wv pigegtdel dam Or olalslt $8, LLudbooll — 
| mre PLS MB, BV, ou BE 
Aets anov —— — — ae — <iberduodau, ORME sr awyote 
- enlt af snottagetia Ifa 20 dieut ord etimba agtmasd of notion ody tact 
aveot ade pino efimba aids tud ,bebacte Ifey ona dotstw tatalquoo 
waka lG, Of 408 RAMEE. FOR. ROBD. AAR. OEE, OM RON OE A ED 
AD oF Bolstine aL 23te 
weirs int AND 892, ho SK, 998 
—— sentra * Provera poms basatp, Wgntals oh aK oth oy 


" “raluges ald bevieoe: oa sult aoe ee are —* —* 
Rie. “He; 

mcrw van of boisitne now od taf? bats yaa 20 miele of oban Ban 18 La 

te ei Yaa goae — ag ovit 

— —— Tibtatalg 0b .qqh LIT fe el wv dved at 

















=5= 

extra compensation above hie salary for alleged extra work in the 
evenings ané on Sundays; on appeal the judguent in his fevor was re- 
versed, the court saying plaintiff did not himself regard his employer 
se under any contract liability, ae *shown by his conduct in keeping a 
secret account and meking no mention of it to his employer until his 
employment was ended,“ In Hoss v. Hardin, 79 1.¥, 84, it was held that 
where services are rendered by one in the employ of the person for 
whom they were rendered “the law implies that the services were 
rendered under the contract of employment, unlegs the contrary be 
shown, and thie implication is much stronger if the services are of 
the same character as those embraced in the contract.” Other cases to 


the same effect are Cooper v. Brooklyn Trust Co., 96 N.¥.%. 86 and 
Heideman v. Bolger, 65 Til. App. 658. 

In Sowash v. kmerson, 32 Cal. App. 15, cited by plaintiff, 
the facts are quite different from those in the case at bar. There 
there was no relation of employer and employee between the parties; 
plaintiff agreed to furnish the deceased with room and board; after- 
ward becoming helpless, plaintiff G14 the work of a nurse for the de- 
ceased, It was held that the nursing services were entirely outeide 
the original contract, 

Plaintiff argues that he should have been allowed to file 
his amendment to his second amended complaint. The amendment suggested 
was that plaintiff "informed® defendant he expected compensation for 
his alleged extra services, It should be noted that neither in the 
original complaint nor in the firet amended complaint, wae there any 
allegation thet plaintiff had “intimated” or “informed defendant of 
any expectation of additional compensation. The proposed amendment was 
Clearly in conflict with the allegations eet out in the previous conm- 
Plainte. ‘The court did not abuse his diseretion in denying thie 


motion, Rubin v. Chicago Title & Trust Co., 249 Ill. App. 4386, 489, 
We are also of the opinion the statute of limitations was a 


goed defense. Plaintiff was employed for an indefinite period at a 
weekly salary and plaintiff had 4 claim against defendant for thie at 


eft of t1ow avtee beaslfa ae? yates ete eveds nottaansquos attxe 

28 ‘enw nove? wid nt trengdwl, orf faeqos no peyabayt no fue agatneve 
seyelque elt Suayet Veemtd ton S48 Tttentalg yttyse Favod eit \beetev 
@ Raber! m2 fouBnoe etd yd mwote* ee ,ysiitdall stoatéaoo Ya Tein Hs 
aft {itao yoyofqee sid of t2 Yo notsrom on gatsem Snes Tauooes Fetden 
tad? Lied sav $f .9@ .Y.e OF al ° Webad daw teomtofque 
tot moered edo Yo Yolque sd? af ono Yt hetehaed ere sedtvded ered 
oie eootvese aft tact setfgat wal odt® bevebnet stow Yodt ‘mditw 


to ota sestvren af? Tl tegmorse doum af nottadtiqnt etft bas (twode 


6? sonny tedtO “ tost@noe edt mt Deowidme onod? as retomtato eaten ode 


ies 32 .8.2.0 80 ,.99 tour? avidooss .v aegoeD ond tooyts ‘amie wie 
80 qq SEE G8 .genfed .v masta 


({titsalald yi bordy (UL Jaq £00 St .gouiewt .v daget aT (7! 
ered’ tad $4 Sane cott mt esodt mort tnotwTtib sesep ota Uidad Sat 
Fs jeettiug off neewted seyoLgue Sea teyolque Yo neltafos on enw Wteds 
 mgoo%e thine bas scot defy beaseoeh of? reterrvt of Bootge Trivdtala 

<9D of 46T venud 2 to duow odd BLO Wttatalq ,oeetqfed gntmoved biaw 

abiegue yleti¢ne erow escivise gntein edt Yadt bed aaw FT beeaso 
| @ER% ot bewelle seed ovat Stueds od todo anuged Yttentalt °° 
besooyaue Inomiaeue eft sTdielques behrexs Saooen sit ot trembnomes wha 
sot soliaeneqnoo Heteeqxe es Sasbastet “hemvetal* Titetiele Fatt saw 
es? wf vedtien Get heton od Biegode ¢f jeeetvass eiixe begelia etd 
(uns ovedt sw \tatafynoo Sebnean Sexft ost nt ron gatefquer eafgtio 


«Xe Enebreteh “Demotat® 10 “hevemisat* Sul Trtntaty Gade aotvagétis 


nee tresigems hexegery off wore sensqmoo isqeitibds Ye nottadceqxs Yaa 
a0 xuaiverig oat int tie #60 oneloagelia oft MT toMded Wt Yriifo 


ald? galyned af nolfersetS sid eeuds ten £26 mveo oat? etately . 


{26d {852 qq SEIT eas +00 Sewat 4 of828 symate? wv mtd — ——— 





Rit aoe he a a —— fing 


Yr pnolgastats te otutass att } motnago sid 10 ovis 


* —V—— 


a te boltoq ov tnitebat na 10% bere tane a nan * 


ts ete 10% dnainoteb tantaye miale o 5: 









of 


the end of each week. The #tatute of Limitetions begins to ran fros 
the time «= cause of action acorues. Katt v. Chapman, 243 i11, App, 12, 
and Snails vy, Sullwan Pelace Car Co., 166 Tl. 161, 

All of the alleged extra services by plaintiff, except 
poesibly one item, were rendered more than five years prior to October 
20, 1939, the date of the filing of the original complaint, and hence 
are barred by the five-year etatute of limitetions, 

We have not noted all of the many cases cited by industrious 
counsel fer pleintiff, we have given the affirmative reasons for our 
conclusion that the orders of the trial court were proper and the 
motion te Gismiess should be sustained, 

aff thyda, 


4 orconnor, P.J., and Katehett, J,, concur, 


—ñNiN 
— ⸗ — — 





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qua; PARed fos weer Stiv besdeae wae wade 0 feet ‘yrttately 

woh and GOP anv » te tree att SPO Wikewindy ew ted Gately 
chiotie YoAtire ove eselecn geben ‘ote Sede bind ead OF) eine 
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te sit? ot @eubavted sentage wtale « had ‘erisdiade | Err) weaken ¥a2 


2 J 


41201 
PETER BAIN, 


Appellant, ..- 






Corporation, ang 
FLEMING and EDYARL 
Receivers of CH 

way Company, 


rations, Go 
CHICAGO SURFACY 





MA. JUSTICK MeSURELY DELIVERED THE OPINION OF hr COURT, 

Plaintiff brought suit to recover damagee for injuries re- 
ceived while attempting toe board a street car operated by defendants; 
the verdict was/defendants and plaintiff appeals, 

The accident occurred at the intersections of Divigion and 
Halsted streets in Chicago; plaintiff had alighted from a north bound 
Halsted etreet car which stopped some distance south of Division 
street; he walked north on the east side of Halsted and when he 
reached Division he saw a west bound Division street car approaching 
109 to 120 feet east of Haleted; when he reached the south curb of 
Division the car wae 40 feet away; ae he came to the east bound street 
Gar track the west bound car passed him and came to etop at its 
regular etopping place at the northeast corner of the two streets, 
with ite rear end opposite plaintiff. 

In the complaint it wae charged that defendants negligently 
operated the street car “in that they failed to give the plaintiff an 
opportunity to safely board the said electric street car, “ 

Plaintiff testified that he went around the rear end of the 
street car and, while it wae standing still, put his left hand on the 
grab handle at the rear of the platform, his right foot on the ster, 
and as he started to lift hie left foot from the ground the car 
started, causing him te fall; he testified that when he was in thie 


DE aah 





a y 
et notxwtat 10t sogemed revoder of tive tiguerd Alontota cll 


javasbaets® yo Betateqe 180 testte 2 bused of gattquetta olisdh hevieo | tp 
atooqgh Vehintala hae einabastabtasw telbuow 0a? | 
—« Bat HOleLVIC te awoktoseretat edt te beriw990 Taebless oat 
l haned atconm @ mort Betdgifa bad Tittaialg jognoldm? af etesrte Bete [al 
ql aoieivi®d to diuos eonsteth emos beqqote doldv ino tesxta botalal 
j ef nodw base betefal to eile teas em ao déuon bedfaw ed ytoorte 
| giidosouggs tao tee1se mofalvid Saved tae a wae ef nolsivid bedoaor 
| te dive d2vos at hberened ec noriw phovalall Yo Faas Fost ORL oF oor 
_ toouts Davod tone off of emae of aa pews Foot OF sew «20 ent noketvtd 
‘al avi #4 gore of cane hne mid Beannq 00 Sauod tnow edt Aowtd ta0 
i safoorts owf odd to cemxes tenoddton add ta evatq gntqaots iluget 
i sTttatalq efteoqqo Bae 129% att dttw 
Ultnegiigen ataabavtead take begredo eew 74 tTatalqmos oft aT | 
| ne Yitvetatg ont ovta of Holts? yout tadt nt* 190 footfs od? betateqo 
bid * =20 Sooxts otatosle bias edt Dised yLetan of vere 
eit to Sao test oct Sevots thew of fadd bottitecs Vittatsrt = 
«oft mo Baar Stet eked tuq ,Lftte getinete saw tf ofidw ,bna a0 foorts 
| «a9te ed? no toot —** ald — E en? te aa0et oft ta ofdnad dorg 
aso od? bavowg ed? moxt soot Pel afd PLL of bofuste of en Ban 








22 
position on the car the conductor was looking at him, although he did 
not hear or see the conductor ring the bell, 

A witness, Andrew Linske, testified for plaintiff that he 
could not see over the street car and did not know what happened on 
the other side of the street car; that when he heard the ecreech of 
the wheels the car had etopsoed and plaintiff was lying in front of the 
stop sign on the northeast corner, 

Clara werbel testified for defendants that she wae on the 
platform near the entrance door; that when the car started there was 
nobody on the step or going on the step; that after the car started 
and had gone some dietance someone ran around from the back part of 
the car ang held onto the car but was not etanding on the step; that 
he rolleé off in the street; that the signal war immediately given to 
the motorman and the car stopped, 

The motorman did not see plaintiff attempting to board the 
ear, The conductor testified he wae standing on the rear platform; 
that when the car reached Halsted it came to a stop on the east side 
of Haleted where a lady and a man got onj he gave the signal to pro- 
ceed; after the car had gone about a car length he #aw plaintiff grab 
hold of the rear grab rail on the rear of the car and try to swing 
himself over to the step, but he let go and fell over on his hands and 
knees; he came over from around the back of the car; he was not there 
at the time the street car etarted; at the time plaintiff attempted te 
take hold of the car it was going about 10 miles an hour, 

Walter Ward wes & passenger sitting on the long seat at the 
rear of the ear, facing north, He teatified that when the car reached 
the east side of Haleted it stopped and two passengers got on - a lady 
and a man; then the car started; that when the rear end of the street 
car wae about at the east crossing of Halsted, he heard the emergency 
bell and saw a hand or hands trying to grab hold of the center bar of 


the platfora, 
The greater weight of the evidence tends to disprove any 
negligence on the part of defendants, On the contrary, it shows 


; 
( ) — 
<B- 
bib act cywodtle ,mid ta gnidool saw toteubaen edt is9 edt mo noltineg 
-ifed ox? gait sefsuhncs ef? soe tq Ga0d Son 
ed tadt 2tltntele tot belttesed ,edtall weibaA ,noeatiw A 
no beteqqad tadw vont ton Sth fae wo topite eff rove don ton bivos 
to desenoe edd Suest ed nasty tadt judo toute odd to ebia teiifo odd 
on? mo saw orn Paelt — 10% — Daunte fete * — 
botuste seo oft testa sad? iqete afd ao grog x0 ph ed? no ySodon 
Ie disq Aosd ode BOTT Sawors oes enoanes gonstesh emoe onog bad bas 
Gast jaot= ald so gadbaate ton ame ted 149 edt ofme Sed boa 180 od? 
ef aevdg Uotetbenmt eam Lamgta ode said ;toerts oct at Ye belies ed — 
Aoaaoaa xa9 edt Sas nawsetom edt 
edt Buned of gatiquetts titalaly eee gom bth aamsoten edt 
 jacttalg sa9% etd no galbaade eau ed Seltitae? cotoubaeo .odT .,400 
abia Jase sit as gota a of ameo 24 betetal Bedoset a0. ond motte tage 
~org of feagla edt eveg en ine toy aes obese yhal «.exvedy Sotelel te 
dara Tiitnlelq wrx ed dtgael ane 2 ¢ueda enoy dad 180 edt xetts sbeeo 
gatve of yt Das 169 ed? Yo ta9s sd? a0 thoy dawg ta0%.0d7 to Dion 
“hea abnad aid ao save Liot baa og tol ad tud ante on? of reve TLoamtd 
" eteds ton saw od (geo ale Yo dead ef? favors sort seve euse ed jasand 
| ov hetqtefta Tittauiale emt? ad? te i{hetuste ceo fopste eat ould off te 
. .twed as eelin Of tvods gatog aw 74 ca0.0d% 10 Bod ofat 
aus a tage gaol om no galrsae cegmesney A.eay Sua sed ley 
 Derioaer a9 si Geode Saud Dallezegt of clPxom gatest ,ua0 edt To zat 
(Ybal s ~ no soy sregmeanag ows Sas oqqode sf Agtalak to shia dene edt 
foet?s edt 20 bag xs0% ad? aodu tad? photreds.c20 od? _ned?tasm 2 hae 
Tonegzens ety Sysed od ,betalel to gutesose t9n0 ed2 fa.¢yeds saw 589 
Ye aed aetaeo ods to died dary of vatxu ataaa ae aed ↄ xqo hasa Hed 
¢ must toot opel mid aU oF a al AS 
⸗ evosga te, of nbaee, 4 —— — :teatousetaown edt. re 
9 awode Xtaucnoo ode m0 sstnsbneted to tung ed? ae 


—S———  .- 






=3~ 
Clearly that plaintiff undertook te board the street car after it was 
in motion, 

The appealing plaintiff does not argue that the verdict ie 
contrary to the weight ef the evidence but his brief is confined ex- 
elusively to criticiems of instructions given on behalf of defendants, 
It was said to be erroneous and prejudicial to receive 20 instructions 
given at the request of defendants as egainet 9 given at the request 
of plaintiff, We do not approve the giving of a large number of in- 
structions, especially in a case like the present one where the issues 
were simple. However, it hae been held in a number of cases that 
although a needless number of instructions are given, that fact alone 


will not be ground for reversal if the instructions are correct. 


Daubach v. Drake Hotel Co., 243 Ill, App, 298, 305 and Chicago City Ry. 
So. v. Sandusky, 198 111, 400, where the ruling of the triel court 


restricting the number of inetructions was held to be error, the court 
saying any rule which would authorize the refusal of an inetruction 
otherwise proper to be given, on the ground alone that ae many in- 
structions as the rule allowed had been given, could not be defended, 
With much skill the brief for plaintiff criticizes moet of 
the instructions given at the request of defendante and defendante’ 
brief attempts to anewer, To attempt to analyze and determine all the 
points made in this respect would be merely an exercise in logomachy, 
Most of the pointe made have been made in similar personal 
injury cases and we do not find that any of them, standing alone, con- 
eatitute reversible error, except, possibly, instruction No, 18, which 
in effect told the jury there was a city ordinance making it unlawful 
for any persen to board or alight from a street car while it was in 
motion, and that if the jury believe plaintiff was doing thie he can 
not recover. The mere fact that plaintiff wae violating an ordinance 


at the time he was injured will net bar his right to recover unless 
the unlawful act proximately contributed to the accident. useell v. 





at- 
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 findehy (OL 08 nettenutant pqldtewen ,tqeox® \rowrs sidteneved sepente’ 
| fvivalnw Bt yotsan somantbio Yie s new srad? yu, elt blot vostte at 
mi eee 02 olidw iso tenths 2 wert tdykia vo based of sowrey Yas OT 
opinathito ua gritaloty aew Biisetale tect Fost exew ett scevooes ton 


da Re Se ae —— 


| seolmys sevooes of teigta afd tad fom iLtw beuwial sew od. eate eat om 
he ay nae 720 naar —X ates % ray aa? all 


.TeetioS e918 saeltowresi edt Ti Leavevet 10? dineotg os eon L180 


R tdnamegal at oxfovexe ma Uletes ef bivew soequet eid? af aban atalog 


ea | 


ad 







~4< 
Richardson, 502 111, App. 589, 598 and Lerette v. Director General, 
$06 Ill, 348, and many other cases. On the other hand, it has been 
held that violation of an ordinanee designed te promote safety is 
negligence per se. Flynn v. Chicago City Hy, Co., 250 Ill, 460, 480, 
Here the evidence showed that plaintiff attempted to beard the car 
after it was in motion, which caused the accident, This being true, 
there wage no negligence on the pert of defendants and hence plaintiff 
eould not recover, regardlees of the existence of any ordinance, Under 
these cireumstances, giving of the instruction will not necersitate 

a reveresl, 

The verdict is supported by the greater weight of the 
evidence and was not produced by any irreguleritices or errors in the 
instructions given, but solely upon the facts as developed by the 
witnesses, 

The judgment is affirmed, 

SUDGHENT AFFIRMED, 


O'Conner, P.J,, and Matchett, J., concur, 






P fanned s0h0078G .¥ gtzoned dae 826.888 gcd +545 908 .goshuadans 
aeed sad ti ,bnal tedte ef no .aeeso tedte yam bee 08% gL]. 308 

_ 8h Wolse stoserg of Dongined sonsnkive ma te woltsloiy tad? Bled 
| 08% ORF -L7 O88 «.o2_ewi yetd onanddd 4 OES 428 aaa comeptsyen 
ka Od Duned of borqnadts Tiidatele sed? Sewade gomebive odd oxell 
| HAbvetete sooed Dae aSaebastoh Yo tuaq ons Ge eOmeBtigen on aay oreds 
 eSatiessoen gon LLiw noktountsa, og —— ee 
ee es vy Mere oteeneres em f f i 
«ott Te tdutew tateene ond ———— Ce ae 
‘seshnehesuntetnenannaaenaee 
sil? wi Baqeleved Sha OE EE at 
AB LL Re; «RB esa anion ——— ‘a 
al ee ote -ghOarEstan ed Ongena OMB o5) oy 92. | a 

. o) «TARREGCA. THAMOGTE .......: weet “ts seer edt Reve nsewt 
née eae a — nee, aS om herds eat ed mmepelay —A ve 
| Mle wet el tie sHoee owe NES 
Tipe sae PE: — 
mupee Ges Te sare y otek atts ne 
hh oD tyeet?e eh ee ae ye TSA wete cy 


















even hoe ately oF to Pea f she a 
ed 

i {ita tad swt vor ab ow Bo Qeaae whet 
‘ain dste &k v8 Bhi evewant  gidieees ft cake yoo ere eeme tom | 
aie 44 pees eceetieeeag et te 2 ae enetle peed sat Hoe eal we 
' ¢i aiftitw veo eeet s3u tine Peed ad BOM ta 0 — 
Fie he ae OW abil int cunt, was Se ) tne 

Moo Bo ueidalete sas Teitetade padtt wee oneal « 
lng geveden of teait eff cad tom Lily Aomulat sae oda 
fine ep \.taabtees a8 of sete eoine® ——— 






307 I.A. 238 


~~ er 8* 


j Appellees, 
MR. JUSTICE MeSURELY DELIVERED THE OPINION OF THE COURT, 


The Village of Mount Prospect appeals from an order etriking 
ite cross-complaint which it had filed in a suit brought by Mary F. 
Nowie for sn accounting of moneys alleged to have been collected on 
certain special assessments, 

Her complaint asked that an accounting be made as to the 
special assessments and the issuance of special assesament bonds, It 
alleged that beginning with 1927 and annually thereafter the Village 
of Mount Proepect collected a large sum of money in epecial assessments 
which it wae its duty to segregate and use in payment of certain bonds 
at maturity. An anewer was filed denying in general the allegations 
of the complaint, 

Thereafter, the Village of Mount Prospect filed ite cross- 
complaint making Christian >, Busse, village treasurer, and eight 
other persone alleged to be sureties on his bond, parties to ite crose- 
complaint. It was charged that Busse, as village treasurer during the 
years that the special assesements were in collection, had alsapplied 
these collections and that the sureties on his bond were liable and 
therefore had an interest in the final determination of the proceeding, 
The parties named ae crose-defendants moved to dismiss thie cross- 
complaint or in the alternative to make the allegations more definite 
and certain, The motion to diemies was allowed, No request to amend 





x 


886 — * —2 


| vila RIOD EE NO NOTING HT CREE σ ULE OT A 


& an vd eon hen coe. ee snmonaee | 
patatags | aebr0 as — — seoqaoss | — 


as Bea Fes — — 
vaen yo tdgworw flue a al belt? Bad #t donde talalene-Seee iar 
ne bedoelion need eval of begelta ayenom to to | BAe mes baa sot otuon 
: .otnomengass tatoos atasa90 
ed? of ns sban od yatinvenoe na tad Dedua tatatqnoe xeK 
og = ,sbaed ?semeenens Laloeqe to eonaueet edd bas atnemenoana Tatooga 
(«RALLY 9? sod Tsoredt YLisouns daw TSC d¢tw gatantged tad? Segelis 
Sinexasease ielseqe af yenem to aye egtal s betoelloo dpeqectt auon te 
‘abacd miatteo to tnemysq at ea ban etagetges oF ytuh ett saw FL dott : 
enoitagetia sit Lareneg af goiyeed Sofft saw tewans oA “We dwt am hdl 8 
| wTalalqwoo ons t 
 nmoro etl Bellt toeqeotl Iawol to enelliv edt tod Taored? 
4 teigte box ,seuveser? epalitv ,eeasG ,2 aeiveladd gotdan tataLqnos 
sse0r8 avi o¢ eeltusg ,bacd eid ac selteme ed of hegelia enoareg redo 
ett gntaub ronus asat oysilty ee ,osauG tad? Degrade saw e1 atataned 
beilaqesim Sal ,velteelion al exew sinemeneaan fatoeqa ots sant a 
Baa ofdati exew hnod ald ao selteime edt ted? bas anettoelfoe orva⸗ 
<gntdesoorg ont Yo moltantmisteh Lantt ed? mt teeretat aa bad aroꝛoꝛoau — 
-asoto afd? sotaeth ot bovom etnabasted-seo1 a2 bemaa ——— ot 
otintiod exon snottagetin edt oxem of eviganiegin edt at x0 tntal 
Sneaa of Seeupet of bewolla asw salmald of noltom edt ft a 








yr oF 
* 







o2- 
wae made and the crese-complainant appeale to this court. 

The oppesing counsel properly say the burden is on the crose- 
complainant to show in thie court that the order appealed from wae 
erroneous, The brief of eross-complainant makes no such showing, 
Groes-complainant in thie court admits that the complaint “ie not as 
complete or ae perfect as it could be,* and asks this court to give 
leave to amend the crose-complaint. No suggestion is presented as to 
the character of the amendment proposed, 

While section 24 of the Practice act provides that defend- 
ante who are interested in any controversy may be made parties defend-~ 
ant so as to determine any liability, yet we do not think thie 
authorizes the practice of bringing in sureties over a period of years, 
commencing in this ease with 1927, thus cumbering the record, 

Moreover, the motion to strike the oross-complaint asserted, 
among other things, that the croess-complaint was multifarious as 
joining distinct and separate causes of action; that it 414 not comply 
with section 38 of the Practice act, which requires every counterclaim 
te be pleaded with the same particularity as a complaint and complete 
in iteelf, ‘Section 55 requires that each counterelain must be 
separately pleaded, and section 36 requires that whenever the counter- 
Claim is founded upon a written instrument, a copy thereof must be 
attached to the pleadinge unless the pleader ehall make an affidavit 
stating facte that such instrument is not accessible to hia, The 
eross-complaint does not contain a plain and concise statement of the 
pleader's complaint but merely makes the general allegation that an 
accounting will determine the liability of each of the sureties, In 
many other respecte the cross-complaint was ineufficient and the 
motion to strike was proper and it is affirmed, 

APFIAMED, 
O'Connor, P.7., and Matehett, J,, concur, 


trsoo elds of slavqqa tnantaiqnoo-reete ed? bas eban saw 

-arexs add no et mebind eld Yas Yiteqoug Jommueo gniaogge eff 9 op 
naw mort belaegqe tebro ed? that tameo ald? at wode oF taamtalqmoe 
-gniwods dow: on sedan tnanialqnes-saeto 20 telus edt uoanorao 

aa ton af" @alalques edt tad? aitmbe tuwoe aldt at saante e 
oviy of Puuoo aint avaa bea * ed Sfuoo 3% a8 Sootueg 94. 10 stotgmee 
OF ae Batnoverg af Kolteggque ok talalquee-2967o ety daen⸗ ‘of — 
i / shesoqotg tnenbnena of% Yo ver anya ests 
—— Tadd cobivery tas eoszgaxt ‘26% %0 as netrovs oLtdy —R 





soltaeag aban of yan ystevottaos Yaa al hefaeretal esas otlu etna 


a elit dads fon Od ay ey .WRLidals yao eodereted of 22.00 tas 


iecer oft univedaue aude — itty onas Atty dt gatoseonoe 


betiesas seialgieo-sects eft extcte of Holton edt ,aevoetet “9 7” 
a2 svetuert? fm saw Saialquoc-eeors oat tads ,egaids andto yadda 
© tom BLS PL sade imolfea te seanse orwisqbe tas ‘sonttals gatnset 
ovapanod Yreve eextupet doldy ,0A eolfsatt odd Yo OS nottoes div 
- etefquce baa Salafqmoo « aa yetusfwettaeg emes odd dtiv Bebaotg od ‘ot 


owe Ye Solesg a “eve solteuse at gutgatad Yo eolsoaiq edt sextzod?ue— 
7 







2 ai? <ovenedw fad? aeitwpen 66 seitoon Bas ,bebdelq YLoddiaqen 


git WS edteediies ‘ed ldndd Bad wiel¢ « dtstnoo You sed dadefqnoo-acore 


od Yeun Ataferetnges Mead dace aocnubon 86 Heideen’ “diel de 


ta a¢ tem Yooted? yqoo 4 .tasmwrten? wevdiaw a noqu Sobnue't af atate Me 
} dtvablvte Ao odew {fade vebaaty ody aeofav tpaibdetg ons oF Bedsdede 
| ect? ate of efdfeneoos ton af taematent down tat? arent ‘pildadd 


ne test? coteegetta ferensg otf satad yLovde dud tarzadtqacd a'eabootq: 
gt Jnetdene sdf to dose to yw2tidall oad odtensdes friv galtniesed 
ad bars teatotitwent sew vatatqnoo-eeotd sdf afdéqios Wd — — 
" pomettra WE #2. bra wi — ‘of 





— 






— — ret@oetios amay ee 
ey. Pane ae at sdtoderat baw) 0t Aoaued·o ae 
i ns 4 tit © desi * natehewikanee fh 5 Pay seat mtee * — Me 


41224 


ELIZABETH SUNDBERG, Suegessor Fe 
Trustee to oepke, Es 
feceaeed, AH: ALL, = 
and GLORGE 






Appeliees, | 







wack, ht By MAG ing Caruso : 


— —— —— — — —— 





MR, JUSEICE NeSURELY DELIVERED FHE OPINION OF THE COURT. 

Defendants appeal from a foreclosure decree and orders of 
court denying motions to vacate the decree; the record purports to 
show that the decree wae entered by stipulation of the parties, le- 
fendants attack the decree in this court, arguing that a consent decrees 
is not strictly a judicial decree; that a decree by consent without 
any evidence ic always error; that no proof was taken and the stipu- 
lation upon which the decree wae entered must appear fully in the deaee 
iteelf, 

Plaintiffs filed a complaint to foreclose a mortgage made by 

Clarence Db, Natteson to secure his five promissory notes of 2.4000 
each; answers of the various defendants were filed; there was ap- 
parently discussion between the parties and June 22, 1939, they ep- 
peared before Judge Fisher of the Circuit court, where in an extended 
colloquy between the court and counsel representing all of the parties, 
the court dictated in substance the following: That it was stipu- 
lated between the parties that the court should enter a decree of 
sale in both cases [the other case is Mullins, et al v. Sedman, et 
al., No, 41226, Gpinion filed this day] some time in October, but if 
before the sale the parties should settle their differences the court 
would modify the decree in any form that the parties might stipulate; 
that if, before October 1, defendant Mack should deposit in Mullins v. 
Seaman, $4000 and in the present case a deed to the property involved, 
and should plaintiffs refuse to accept thie, a motion to vacate the 
decree would be allowed as a matter of course, the parties then 







ae 2 PUNO 


é i 
Tue tages 





te siebte bas serveb eauaolewset @ sot? ineiuilimaateaia otty afan 
ot aduoqumg Stopes afd jeeused of9 eteoay of anolitom gntyash sxy0o 
— 8eituay odd Ro sottstugite yd boustae sew eoneeh af? dane woe 
evteed tnepnen.s sags gatupne: dunes pitt at poweb: ⸗ 
tuadtin sasaneo Yd eetosh 2 tasid jsotoeh Letolbul w yldotats son al 
(ght eae dan nase? now Yoorg on sadd prow ayenle at commbive yas 
evneb odd ot Lint aneqqe tava Doretae sew sonpeb ont totdw noqu nottar 
&. ct Ye 66 petteaRiene 
Ue sham eyagsiom a enofoero? —————— of af 
COOP: Io seton yromelsotg avtt eld euses of sonedtak .@ sone1al> 

q “gm Yods S521 ,88 sant dna aciouag 
~eeliuaq od? Ye Lia galéneserges Lonaneo bas sxuos. ont meavtad: yupotton 
| -nglte aew TL Gae igndwolfet eff eonavadua ai betatalh daneo vit 
Yo eeteh & setae Sivoie tumes gait Gadd aokduaq od? seswTed hotel 

ie .Sembel .v fe go .~eallfvi of sase secto ent) evaao died at elas 
tt tad ,sedeted at ent? amos [yah aidt Sollt seintgd Q68lh of yaks 
guvos of? esernesgettth gledé: eletes Divode soltuaq wig aise ott e10tod 
tetalvggte togin seltaag ee tad? mxot yas at oetoeb et ytibom Siuow 
44¥ Eatifoe at ttooqeh Siveds doa tasbapteb: yf asedotey eroTed, (Rh gait 
sbovioval ytasaoxg eft of boob » ease tnesexq ed? nt Bas OOM} man 
eit etaoav of nottom a ,stds Sqeooa ot eavtex attitalalq 
ned sett<aq od? \saxsoo ‘to ahead a — * te 


=f 


‘i 


} 








— 
standing before the court in the same position aa they then stood, 
with the right to have a full and complete hearing but should Mr. Mack 
fail to make the deposit of 34000 and the deed, the motion to vacate 
the decree will be overruled and the decree will follow in the 
ordinary and usual way, 

My, Zimmerman, acting for plaintiffs, stated that this was 
agreeable to his cliente. Mr. Mack, who was acting for the defendante 
and himself, was asked whether the parties present had ali of the 
suthority necessary "to enter inte the etipulation to be binding on 
all parties in interest," to which Mr, Mack replied, “Absolutely,” 

The partiee also agreed as to the length of time for the proposed 
settlement and, to the question whether October 1 should be the limit, 
Mr. Mack replied in the affirmative. Mr. Sternberg, whom the record 
describes as attorney for defendants, also acquiesced in thie agree- 
ment, The court suggested that written copies of the agreemzent be 
given to each of the parties and the attorneys expressed the opinion 
that 1t would not be necessary to have the respective signatures of 
the parties to the agreement, 

Pursuant to this stipulation a decree was filed June 24, 
which recites it was entered “pursuant to a certain stipulation" 
between the parties, all of whom appeared in open court by their 
respective attorneys, defendant Mack appearing pro se. The decree 
also recites that the court was “acting pursuant to the stipulation 
entered into between all parties, after due notice to all parties 
entitled thereto, including all of the parties to the action and 
their attorneys heretofore specified herein." Defendante made 
motions to vacate the decree, which the stipulation indicates were to 
be made so that the court would retain jurisdiction, 

The necessary funds and the deed which the stipulation 
provided should be deposited by October 1, 1939, were not deposited 
and additional time for thie purpose was granted. December 15, 1939, 
the court entered an order overruling the motions of defendants to 
vacate the decree. This order refers to the stipulation entered into 


Cee 
| J 


Soots ned? Yen? sa aettiacg omee olf mt dxvoo adv oxoted gatiasda 
ioe .1 Bivede sud gatused etelquoo bus Iv? e ovat oF tigts ott ftw 
ataeay of gotvon odt ,beeh ef Bas 00039 Yo tieogeh ad? eine ot That 
A walioR {tw oonged eat Iia'Soferove ot Like covet eds 
usw atid tect betate .etiitatelq sot gation — —J— 
atrabesteh eff cot gxitoa avw erty toa 4h —B oleae 
ed? to Ife bat Smee vq coltsaq of? cedtedw Sodes saw ,tieentd Sas 
ne gribatd of of softalegtts edt cant retne of” Yiseseoen Yt trodd us 
* .vievulosds®  beliqet toa AM dol of © Seotstat AE wetttsq Lia 
«ss Bewegeng ait aet emt? to dtgrel att of wa Beotgs o8fa editing eat 
“(tut odd 9¢ bivods f tedoted vedt ody notteoup edt Of (ban ‘sdemettied 
Siocon add mode .gredaTe¥® wh levivesrltts oft at Beffqet fost av 
-corge Cle at Seoretios onfe \RIadbaoTed rot Yomretse Wd wodttoass 
Od Pntrnotgs oF To wetqow nettiiw add Botaegaue dived 6d? | yds 
' Retaige off Beseeraxe eysetotin ont hid eotteeq ade i tea ee “Rit 
to eoulangin eviteeqes: eft avai of yusasenen od ton bivow rt fade 
 tnenennga elt of sottiag ast 
.e8 onwh belt saw pduend 2 nettatoghde ei07 of Peavewwt © 
“‘totvlugits ntattee s 62 tasuetwq” Sewsine anv #2 dettoer dotitw 
uted? y toe new af Sorseqqn motlw Yo [la ,aettasg oft neowted 
| sv10eb ef? ee oxg ynitseqqu doa tastncted .syortetta svivosquey = 
:  nottefugtts ext of tnagerwg gxttes* es¥ txv0o edt sertt eettoor outa 
| seltiag (18 oF setton owh tetta aattiaq {fe neovted otal Beredne 
baa neltoa of? of vettieg ont Yo Ifa gnidulonk ,otored? Sardine 
| OF otew eetantbnt wohtalught® ad’ detdw ,ooroed sdf etaonv ot Yaottow 
| mettetbetist niaves Bivew tiddo oft tett of ebaw of 
netvalugite ot dofiw Deeb ont Bre ebnwt Yimeweoen off °° 8" 
- Pettwoqed tou orew ,CCeL .f tedeted Ye Berteoqed — — 
onet OL Aoclava  Detnary’ new deber Wide Tor omds” Lenole aed Bele 
| stneBneted to wnofson ot Yat fintave obo ia Bexetae YANOo ¢ 
} otat nevetnd Holtnivytse oft of mxoter Yebao eieT ‘oeios ay : 


ES — 


a — 






23 
in open court on June 22, 1939, by all varties te this cause by their 
respective duly authorized counsel, including defendant Mack. The 
order referred to and recited the main provisions of the stipulation, 

January 12, 1940, defendante made another motion te vacate 
the decree, Mr. Mack then etating for the firet time that if he had 
understood the clear legal effect of the etipulatien he weuld not have 
been a party te it, The court ruled that the parties were held by 
the terms of the stipulation and denied the motion, 

In Bergman v. Khodee, 334 111. 137, 143, it was sought to 
set aside a decree which the record showed was entered by agreement of 
the parties, The court held that a decree so entered by consent can 
not be reviewed by appeal or writ of error, citing Paine v. Doughty, 
261 Tll, 396, and Galway v. Galway, 231 Ill. 217, It can only be set 
aside by an original bill in the nature of a bill of review, Hohenade 
v. Steele, 237 111. 229, and Hungarian Benevolent Society v. Aid 
Society, 283 Till, 99, 

It ie mot necessary that the decree recite the stipulation, 
If the stipulation appeare in the record no recitals in the decree 
are necessary. Crow v. Harrison, 248 Ili, 462, 466, In Sehuler v,. 
Hogen, 166 Ill, 369, 385, it was held where a decree recites that it 
is by consent it will be presumed that it is upon sufficient evidence, 
Moreover no special findings are now required, (§64 Practice act, 
eh, 110, Ill, Rev, Stats, 1939.) 

Casee cited by defendants are not controlling, Patterson 
v. Northern Trust Co.,238 Ill. 601, merely holds that a decree must 
show it is a consent Geeree but it does not hold that the stipulation 
must be incorporated in the decree. Krieger v. Krieger, 221 Ili, 479, 
holds that a decree net showing any consent can be shown by other 
evidence to be pursuant to a stipulation, 


Defendante say a consent decree is nothing but a contract 


and therefore governed by the law of contracts, but the case they 
eite in support says, *A consent decree partakese of the nature of 





; 
j alLedd yf onmme ete? of aetiveaq Ife qed ,e0eL (98 enwt ae Pxwoo Moqe tt 
gait OWN teadeotSh yorbertne® , feemd9 bea ltont wm yIub  evisosgnen 
cortatsntta at te enetetvorwy stam oft Sefoet bas oF bewretey sobi0 
etacay Go? moften teiions stam etrebagted Ger SE ern ed 
i bad ad kL fad? omft geuxlt off «Ot gnivate aed? foal 4h, eotoed ene 
| —— ——7 4 
— — tad? Selwx tives of ,t2 oF Yung wi Heed 
orton ee a ee 
Ot Pigwor sow FE TAY POY OTE 288 .gebom W gemeret wt 
ye Ineweerge Yi Sovetae saw Seveds Srecet ey dotdw eonrsek @ ebles Bon 
(nso TowKOO YC Berets Oo» cowed o Patt bled tawoo’ oft estan eit 
 ettiawet . cnet gnttts ~rorre to tite to tnsagee Ww Dowotver of ton 
| gee af efi axe 22 VEY LOOK Fe \yee hed wv yswlad Saw 88s VEIT Let 
| Isbayadel’ .wetver to Eff & Ye emuthw onf mt [itd Lantyluo ne yd wbtua 
: eloo®_ tne. pa. : — — 
i | 80 SLY eae \ypetowe 
| wwettatwgees oad ottoer ooreeh emt tact wemmwover ten ms em 6) 1 
gexoad edd af eletioe om Brose: of? at wrasqas Notteluglie ez Rl 
Y qeiuste? aT (88d ,SOP .£1T BFS oe tee 1 yer Serenesoen ems 
| gh faite wetted: sovtoed 2 etady Bled ean Ff (OBS OOS LET BOL gieyen 
| sonebive teeLerTWwe soqe G2 of tds Seewedeg of MLE th Yasnow yak 
; (Heh oro 208). | Biretupin ‘we ots syatiel? Lateoqe om teveer0K 
( eseL yatat wwe (PET. OLE le 
ggetosiet .galliowne ton exe araebaeted Wh Bette wesdd © Or 8h 
ss Het estoeb » Pact nbfea “even ,108 /L82 888.99 Jaws? naedoaet wv 
| sotsateqtin emt Pale blot Gok Wess FE Ved coneeS Pacence wal oh woite 
| (Oe ELT ESS tem eied wy tegetel sete GH nf Rotaroqroon? ‘od Yeum 
sodto yd mwode od Ha datenco Ytin yRtveds Fon Ser9Gb 5 Gadd abLod 
dec SG BL ge etermeed aes Waanetag od ot vonebive 
 foatiaes « tud gatdfon ak egrteh trennod a Yas ediaheated © ong 
| "ead uno odd tid \edoausidn te wal add yd — 


"se ‘owtan ont * —** —J Layee Piodqae at oth 
ee ot. — treo weet — * 


















o4- 
both a contract and a decree," American Tar #roducts Co. v. Bradner 
Smith & Co,, 238 Ill, App. 151, 158, 
Other suggestions made by defendants are without merit, The 
decree and the orders of the trial court are affirmed, 
AFFIRMED, 
O'Connor, P.J,, and Matehett, J., concur, 







annie — —— — 
| ham att RE: et Pi eit 20t ——— Gaal — 
fh oviat ene Rowe ok cistneiep te: ñ | 
po og nit ae one ene Poe Si when ye 
ore ote Begeet' dian" rome itan. pega wig oe wae. tae 
oe ee ee ee ot) nioactin | 
" te Jy ef Bethe Few heme Bape ahd dexaw sensed i ohtma Wie | 
; oo Pepeive te Seweties on sow? @ taele Seat Pepe aah oulteng ait 
SGU, -* gala} aattne Aeowel ie Cee ae ee ‘et eto t we oi Boer 
; fue a6 GIR new O° De LED Tem ee ele Sew oe Geet a 
etree te Tike oe Re wae eet we ater Tete a 
| — se sio. sgveersnel eacaccun bao — —— 
— atin: saveot aly fase —E— — 
owen adv ns eet ios on tenet wae a eR amo Lhe ee RE 
ee ee ee ee 
ay #2 2 en ct a teeth Ne OE ſ 
Ih ever eS DE ee Me wR ee ee eee ee a a 
Rae ee we te oie 
fame eae wal gah 
odeterget’ an nine wel Wee enacts ie ones weal” esos 
tok yousal & Fou aah ytd OO en eee pas i 
a gotvtalentds at? ele Ktor vee ween PO tet cone “ili wise till 
ee ee ee 
| Se ee ee ee a petoedts Tos ream a Onda sais 
ee se — pains oer wommntve | 
Poe «oe GA os aeNeNE Tee WW ya vga ; 


yee ose’ oni . —E — — “he war ade yt sowtvog ad | 
to nus ats bd be — meted leony aya ¢ ; 


a. hie 


























41225 


Re. I, DAVIS, succeeded by LOUAH 
lie MULLING, ter Pag CHARLES A, — 







KOEPSE, Trustee, eugteeded by 
LEROY A, SARR, as Yiecessor 
Trustee, e¢t al., 






i Appellees, 


oor fem 


3074. EA 


. JUSTICE MeSURELY DELIVERED THE OPINION OF THE CovAT, 





Defendants by this appeal seek the reversal of a decree and 
various orders entered in a foreclosure proceeding; the complaint to 
foreclose was filed January 8, 1927,by BR. I. Davies alleging that 
Charles Gedman, one of the defendants, waa indebted in the principal 
gum of $20,000 and executed four notes for #5000 each secured by a 
trust deed conveying real estate as security; that plaintiff was the 
legal holder of one of the promissory notes on which there was then 
due (1000 with interest. Anewers were filed by defendante. 

Subsequently Logan L. Mullins, as receiver of flumboldt Bond 
and Mortgage Company, wae substituted for R, I. Davis; also, an 
affidavit was filed etating that Charles A, Koepke, the trustee in 
the trust deed had died Getober 6, 1931, and Leroy A, Garr as succes= 
sor trustee wae substituted in his stead. The decree sought to be 
reversed was entered December 15, 1930, nearly thirteen years after 
the complaint ware filed, 

In the meantime various phases of the litigation have been 
before the courts, Davis v, Sedman, 256 Ill, App. (abst.) 607, 
certiorari denied by the Supreme court; Chicago Title 4 Trust Co. v, 
Mack, 262 111. App, (abst.) 632, affirmed by the Supreme court in 347 
Tll, 480, 

The cause was referred to a master in chancery who took 
evidence and filed his report, From thie point the case is in most 
respects a companion case to Sundberg, et al. v. Matteson, et al., 
No, 41224, in which an opinion has been filed by us this day, what 
we have said in that case 1s applicable to the instant case, 











ato aur ac uorurao aur CaRAVEIEG raaaur⸗ vorreva 
Aas 4 Yo Inerover edt doom Leeyqm aid? yo etaaineted i 
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| tant gatyotin eivad .. .2 ya. SSCL vxauiat Beftt saw seoloerct =| 
| faqtoning out at Setdebat amw .atnabmeted of? to eno .nambe® selaatd Be 
a Yd bevywoor dose COOB’l vot aeten «we? Deteoene baa 000,088 To axe | 
ed? aay Tiitetale tort pyitawoee oe etstee Leet gatyevnes beed text 
ged? aaw oredt cotiy ne aeton yrosetmong ont 2o ono to tebfort Layer 
oe setnabneted yd beLlt siow atowans tnovertat ditty OOOL) esd 
not thLoduwlt Y vovleoor os \salTiuM .J mayo yftnoupendw® == ; 
: se ,ovfe jetvad .I .f 10% betusitads saw ,taaqmdd egegetoN Ban # 
nk SbtnWAy at? jedqooX .4 aeitadd tad? Qadvate Botti new stvable | 
sponoue aa tee .A Yoral bas {EOL 8 tederoO HELD batt bowb toed ont? J 
ad OF Figshs gerseb on? .beate até nt Doras teedim eee | ] 
~ot%e eresy mesitint yiisen ,O8@L ,éf sedmened betetae sav ‘peetevet —— 
bolt? new tntalqmod bell 
«seed oved mottegisif ed? to seeadq swoktav omtinsem ed mE == y 
es Citeds) eed ET 88S nasbet vv pivad.atxw0o edt exoted q ; 
.* .90 Sows? 9 of32% ogsotdd youu0 omorqu® edt yd Dotned tuet0tsie0— 
ean at tuveo omerq® ef? yt Berritta ,868 Lene saga IIT 388 — 
ee "ten 
‘doov otfw yuwonado at rotedm 4 of hevaetet saw seus ott 
saom nt af oese eels tatog atdt moet .taoqes ald ‘poll baa ¢ * 
Rag openers v {a 22 niedaaut of stne nodneqnce & agoor 
tab ated aw yo Bottt need eat motaiqo 
— enae tuatemk edt ot ‘sfdeotiqgn 






June 15, 1939, the case came on for argument on the master's 
report, which was favorable to plaintiffs, and objeetions, The court 
indicated that he would overrule all the objections and exceptions, 


June 22, 1939, the following cceurred, as in the Sundberg 
case referred to. The court etated that it is stipulated between the 


parties herein as follows: “That the court enter decrees of sale in 


both cases" (referring to Mullinge, et al. v. Sedman, et al. and 
Sundberg, et al. v. Matteson, et el), setting the date of sale sometime 


after the reopening of court in the September term, It wae then 
suggested to make the date October 1, which was agreed to, The court 
also stated that a motion to vacate should be entered in each case and 
that if before the date of sale the parties should settle their 4if- 
ferences the court would modify the decree as the parties might 
stipulate. It was also agreed that should the plaintiffs refuse to 
accept a deposit of §4000 by Mr. Mack before Vetober 1, and a deed to 
the property involved in the Sundberg care in full settlement of the 
indebtedness involved in the two cases, the motions to vacate would be 
allowed, Should Mr. Mack fail to make this deposit and deed, the 
motion to vacate the decrees will be overruled, In answer to an in- 
quiry by plaintiffe' attorney as to whether there wae present all the 
authority necessary to enter into the stipulation so as to be binding 
on all parties in both cases, Mr. Mack replied "Absolutely," This 

was also acquiesced in by Mr, Sternberg, described az attorney for 
defendants, 

The decree, which war entered June 25, 1959, recites that it 
was entered pursuant to the stipulation between the parties in the in- 
stant case, naming them, “all of whom have appeared in open court by 
their respective attorneys,” and Louis W, Mack, who appeared pro se; 
that after hearing arguments on the objections to the master's report 
the court overruled the same and approved the report. The rest of the 
decree ie in the usual form, 

Mr, Mack failed to make the deposits with the court as 
provided for in the stipulation, and December 15, 1939, the court en- 


— 





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AS MOE: 


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| bra Je to .fambel . ie to eatlied of gniexetor) “asans died 

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"3 next? ame 92 -muot todmedges ect. ak Prune Xo palaegoes ed? seP%s 

“94u09 AGT oF boougs nae sdotew (Lh apdoted atab ont. olan of Betvaggue 
baa saae dose al Sevetne ed Sivesia efoaay of aoltes « tant Detateonle 
 whhb ated? ofttes bfvera coltueg of? aun Yo stad odd oroted Mh tadt 
tigim aotiued ed? 90 vonoah odd yiLbom divow sxmo0 set aeanere? | 

of oagtoe etiiendialg eff? bivoria sade Reenge conta aew 92. «ttalugits 

of Beeb o how ,f tadoted eveted daa salt yo COCR) Bo Pinomes w Fqan0e 

ad? 20 suameisges Liv? nt exec gugdhgy! odd at Sovlows qweeqorg-eat 
“ed Sivow s¢sosv of snotton eft senna out et? at boviewat evenbotdebat 
| edt heed bas Ftaoqsh ets exam of Lak toa sn Siuode .bewolia V—— 
tb mR OP taNOAS AL JbolorERve ad Lit oner008 ent otaosy of madvon | 
ant Lis tasserg seu exec? rentgerw of ae yerwedds ‘attitetelg at yatup | 
| aatbatd od ©F a2 es nottaluqhtn sft ott cetne ot vunessoen wittedsue 
Tot Yonrevta as Hedixoesh ,gredatss® oh ved wt — 

«$f Sadd aettoen ſaaet .62 savt hevetae asw doddw .oaqoeh af? . 

3 afi gilt ot selicag eid seowted neisaluqiza edd of — Satan 











Syoqer s'xedaam eid of smettoeldo ef? ae aaoauua⸗ — — 
edd Te deer od .@veqgen ad? hovers baa omen oct, dekerexave smug act | ti 

i enon Lawman 0d hah ponood i 
ka tauoo edd Arty —— eas oxism of Bolted atom Moo a q ig 
as #1u09 acd \8UEL OL voduaved dna noteatuatee 0 bivers 


ny 1D, Whe Poted pee, 





~Zo 
tered an order overruling defendants’ motions to vacate the decree and 
in the order recited that *the foregoing recital of evente from and 
including June 22, 1922, to and including the date of this order is 
true and correct and is hereby adopted as the findings of this court, * 
The order further recites that the denial of the motion to vacate *was 
pursuant te the aforesaid stipulation,“ It ie established beyond 
dispute that the decree of foreclosure entered June 25, 1939, was 
entered with the conzent of all the defendants, 

Defendants question the right of Mise KH. I. Davis to commence 
the foreciosure, but she teetified that she held the note, No. 3, for 
the benefit of Numboldt State Bank, fhe execution of the note and 
mortgage and the default were admitted by defendant Sedman. The trust 
Geed authorized the institution of the foreclosure suit by the legal 
holder of the note, and Charles A, Koepke trustee, joined as co- 
plaintiff. Kazunas v. Wright, 286 Ill. App. 554, 559. 

The brief of defendants contains a lengthy statement of 
certain transactions involving the Louisville Fuel Co., the Keystone 
Trast & Savings Sank and other parties, one of these transactions 
is germane to the sole decisive question presented, namely, wae the 
decree entered pursuant to « binding stipulation of the parties? The 
record clearly shows that this was so. In Sundberg, et al. v. . 
Mgtteson, et al., No, 41224, in an opinion filed thie day, we have 
held that this stipulation was binding and the decree entered was 
valid, | 

Where a decree recites that it is entered pursuant te a 
stipulation it will be presumed that suck consent was given, Sehuler 
v. Hogan, 166 [11. 369, 583. It has been held that a decree entered 
by consent cannot be reviewed by appeal or vrit of error, Bergman v. 
Bhodes, 334 111. 137, 143. It is not necessary that the decree recite 
the stipulation if it appears in the record. Crow v, Harrison, 248 
111. 462, 466, 

We have repeatedly eaid, quoting from Stoll v. Gottlieb, 505 
U.S. 165, 172, "It is just as important that there should be a place 


— 





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| naw s env hovetne orsmnoloote? to set9eb ata Tadd osuqath 
| RSnabnotoh galt fhe 9 Taeaaco edz ——0 
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MOT «G OK Fen ort Bled oem sade beLrtenet ode 2us \etsmotowso? ott 
fas ston eis to moltuoexe af? nei state sbLodautt 2e i Ltoned of. 
tae ed? .nembet Saahaeted Ww Aettinbs wxeq inated edd Dap. 
Saget elt yo tine suumoloero? onlt to aotaus Loans oats Dextrordt ua 
“09 GH benieal .setesn? sviqeod A solide baa seton eds % sebtod 
aE ght a qod big ape Jaa wy eamwsst ote 

to suemetete iydtgnel a anlesaoo sfunhmete® we tela edt * 
anctayed ers 4.00 Lenk siLtvetued est gatviovas — ale 
Nieltoasmexs seeds to enol —R roauo Baa ined sgaty 
sad aa Xonsn atneneng notin any ovietond sioe pet — 
ait Trotdang add Yo moftaluqtts gatinid a of a⸗avn tag, Peropae ) Seroph . 
— —————— 908 omy otsit pede pvode Vinrasie Drops, 
“evn ah Yad aba boltt nolatge aa ot —2 tg —— 
aa bers setoed odd bas aniihald aew unataaise — add bied 


th Gla Anew 


— 

at et aerava bozetne et 24 sade set tows, peveed. a oxonty, 
+ seiugee ferle eaw Inesa00 fous put beawaezs oc ite 34 apts apsratustee 
beretae sero eh & tadd blout neod aac a os 008, EE oor —— 
— to 2 be 0 facqqs we bowetven od ‘sonase —8 sroanee ys 


OY 2s 


ef town seine of9 tars crass poor gon at #1 — el £2 X aes, #8 mabe a 
Gas —E woe — * ag _ptseqas #2 3 21 note — ey 














ARMAND. O. « aed SF ah. 
208 sonst, -¥ £1988 mont yattoup bine videranqes evad oi, 


et ley dads Santyoget so, teat. at 


Mei EL OA. an Big MOL TALES : 









pay — 
to end as that there should be a place to begin litigation, * 

Por the reasons above stated snd also stated in Sundberg, 
et al. v. Matteson, et al., No. 41224, the decree and orders appealed 
from are affirmed, 

AFFIRMED, 


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










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oo ARN 
240 





This sult was begun August 15, 1937, by a confession of 
judgment which plaintiff caused to be set aside on its own motion on 
October 6. Thereafter plaintiff filed an amended statement of claim 
and defendant an affidavit of merits with demand for jury, tendering 
the fee, and the cause wae placed on the jury calendar. 

September 19, 1939, the case came on for trial in the 
absence of defendant and her attorney. Judgment for $391, 30 =“ en= 
tered on the finding of the court, September 22, defendant moved to 
vacate the judgment. The motion was supported by an affidavit of 
attorney for defendant, showing that he was mieleé ae to the time the 
Case was to be tried and also facts which it 1s claimed showed a 
Gefense upon the merits, ‘hen the motion came up for hearing on 
November 135, 1939, the parties entered into a verbal stipulation that 
the hearing should be “solely upon the pleadings and exhibits, for an 
adjudication upon the validity and sufficiency of plaintiff's claim 
ae set forth in waid Amended Statement of Claim and upon the validity 
and sufficiency of defendant's defense as set forth in her said 
Defense, said affidavit and exhibits, in the same manner and to every 
extent and purpose as if no judgment had been obtained ex parte as 
aforeseiad, “ 

The pleadings were submitted to the court with exhibite 
consisting of Wxhibit 1, a contract of conditional sale to which the 
note at the time of execution had been attached; Exhibit 2, a pro- 
posal and guaranty for sale of a stoker which was the consideration 
of the note; and Exhibit 3, a copy of schedule of receivables showing 
the assignment of the note and account to plaintiff. Upon considering 





“OS 
THUOS UWY 4O HOTMIGO FHT GENaVIUad TTARDTAM rm 
te soteeetaee « yi ,T6CL .6f semguA nuged saw five aldT 
ao aeltem ayo oot mo abten ton ed of beauso Yitsatalg doldw taomgbul 
sialo to Tnesetets Sebaems ma beltt YiLsalalg r9eFtaotedT .8 s9d0FH0 
grivebns?d aut so? Dbasmeb d2te stfaem to tivablttse na tasbasteb Sas 
<tabnoiae yYawt edt so beontq saw cemse ort Bas (90% odd 
edt ni fats? x02 no oman eano ed .OG0L ,OL tedmetqet Pare. 
-ne aw OS L889 aot ¢nomgdul .yertetts t9d baa tnabasteb to sanseda 
o? Devos ¢asbasted ,88 aedmetqs® .tawoo eft to gathalt ot ao Boxe? 
to tivebitis na 16 Setvoqque saw aoltom sdf .Jnemgbut edd efacav 
eit omits oft of a0 bofotm sow of tattt grtwoda ,tnabueted 20% Yentotta 
| s ewots Santafo ef 94 dolce atent oale Bas bels? od of saw eeao 
fo aniveet tet aw oman neltom sdt mem’ .etinem edt aoqu oansteb 
t tad? neltalugite Laduev 2 ofni horetme salttaq oft ,ebeL ,bf redmovol 
fa 167 ,adidides bas egnibasle edt moqu ylefon" ed Siwora gutused edd 
tele a'Vittntetg te Yoneteltiwe das Ytbhtev ed’ mow motsactbulsa 
«NG LbLLav sd? nogqw bas mislD to Snemetet® babmemA Staw at ddxot tom an 
Sise wed al d?tct ten ea satteteb a'taabaeteb to yonelolt tua bom | 
yr0ve of bas tenmsm ewes of? mt ,etidtdue baa tivabltta biae .oeteted 
as stisg xe benletde mood bad taompoul om Yt se saoquvg baa tnetxe 
¥ stig:  * —(b2eaetets 
atididxs ditw ¢useo elt of bettiedus exow agatbaetq eff % 
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moLtgzebleroo oft saw doldw sedotea 2 To olan apt wince baa nye 
gntwors aeldavieoor to elubedon te yqoo 8 co Pididudl bas *9 pai 
——— abgu nuanial o? sauces Bes ston add te | 


—_ 


| 


Le 
the pleadinge and these exhibits, the court found that the promiseory 
note detached from the conditional sales contract was a negotiable 
instrument; that the conditions of the conditional sales contract and 
proposal and guaranty of which the promiceory note was a part did not 
affect the negotiability of the note, which in the hande of a third 
party was not subject to any defense ariaing from the contract, nor 
from the proposal and guaranty; that Exhibit 3 (the sohedule of 
receivables under which plaintiff received and held the promissory 
note) did not affect the negotiability of the note nor the position of 
plaintiff as a holder for value without notice; that defendant wae 
without recourse as against plaintiff and the rights for plaintiff 
for recovery upon the note absolute. The court, therefore, found as 
& matter of law that the defense interposed to the statement of 

elaim was ineufficient in law and sustained the judgment for :351,.50 
previously entered. From this judgment defendant appeala, 

The matter wee submitted upon the pleadings and the ex- 
hibits. The court found, as a matter of law, that the defense was in- 
eufficient and sustained the judgment as entered, The pleadings of 
the defendant (and they were verified) all asserted that plaintiff, as 
@ matter of fact, had notice of the defenses to the note. The plead- 
inge of defendant show that the consideration for the execution of the 
note wae a stoker, and that it was entirely worthless. Assuming 
these things to be true and that plaintiff purchased with knowledge, 
plaintiff wae not entitled to recover as a matter of law. If plain- 
tiff took the note with notice as defencant alleged, he was not a 
holder in due course. ‘Section 62, ech, 98, Ill. Rev, Stata, 19359, 

Por the error in holding as a matter of law under the plead- 
ings and exhibits that defendant was liable, the judgment will be 
reversed and the cause remanded for another trial, 

REVERSED AND REMANDED, 


O'Connor, P.J., and MeSurely, J., coneur, 


is) 








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to agnideelg off Serene ae Seeegbyt att Bentatewn bas tietertive 
ne ,Titagely todd borrows Lfe (Serttxev erow Yet? ban) seabaeteb ede 
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| gninveoh eeeliirow ¢fouttne naw $2 tad ban vedoty & aawdvon 
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! ed £fiw teeupiet ety \oidalf wav tnahnete® Saly attdtiico bas & 
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| gmbreiiaaes socd eaeecom bas oven tt Yo, on 


—————— eee “Se: aie ea aoe ee eae 


SPORD 





Gefendant appeale from a judgment in the eum of $1526, 50, 
entered against him jointly with the Inspiration Placers, Ine., — 
corporation, on the finding of the court. Plaintiff has filed a cross- 
appeal arguing that his total claim of $2118.50 should have been 
allowed and asking this court to enter judgment for that amount in his 
favor. 

Plaintiff's claim wae for services said to have been rendered 
by him for the corporation from May 21, 1937,to Mareh 15, 1939, and 
$42 for petty cash said to have been advanced for the corporation at 
ite request. 

The defendant corporation had a gold mine located at Sewie, 
Arizona, and plaintiff went there to act as superintendent of it. 
Plaintiff had been theretofore employed by Ford in his Chicago business, 
and Ford admits thet in a letter written by him to plaintiff on December 
11, 1937, in order to induce plaintiff to continue in the service of 
the corporation, he guaranteed sume then and thereafter to become due 
to plaintiff for his services, The defense interposed was that Ford 
in later letters (one of Jenuary 29, 1938, which ie defendant's Exhibit 
7 and another of May 16, 1938, which is defendant's Exhibit 8) revoked 
and cancelled this guaranty, 

The evidence as to the amount due from the corporation to 
plaintiff ie conflicting. There was evidence tending to show that in 
the month of Septesber, 1958, plaintiff was notified and accepted a 
cut in hie salary (which theretofore was $250 per month) to $150, There 
was also evidence tending to show his employment ended on January 15, 





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sev opactm® ate mt Dict Yd beyoldus eteteteret? ned bait rttatata 
goo! Ho Ttitntalq of mitt wt ede ftw derrer a wt tad¥ ertnba fat Bate 
te aa kvitne adit ‘al eurttocs or Vifatefe sembal of tebte nt ‘eer ptr 
‘a eub amoood of toftacted? bas sedY tute beataensiy of Kolteroqroo ‘elt . 
Bon tatty aav Dotodtedal enaeres SAT” Jnosttvans ‘etd Wot ‘Tittdterg ‘oe 
co a'tnainsteb af dotdw deer ee yrauaet te (ne) weston weaatat | 
— pesovet (8 ‘thdkane an⸗on· des pti i {OReL ,OI'YRH to oddone fae d 
* vor ⸗ xenaraug tee boLteona Bae 


f 






























12 


ot moftaxoqies sat mort on tnioma at? 9 ua sbiebtve oat bea — a 
at add wore of gathned sonebive See oxeitt” atrot tuase et * tte wta! _ 
| a betqeccs bas bolttvon’ waw winmiata —ẽ — * 
event (OBL) of (dtnom t9oq 0680 ‘Hhw ere J— 
af — ao geri’ | eadergelins aid woes — im 


— 

1939, inetead of March 15, 1939, as claimed, The trial judge saw the 
witnesses, We cannot say hie finding as to the amount due plaintiff 
ie against the manifest preponderance of the evidence, for that 
reason we may not enter a judgment here for the larger sum plaintiff 
aska, 

For the same reason we think the judgment ageinet Ford may 
not be reversed, It is true, ae Ford contends, that hie guaranty was 
in its nature a continuing guaranty which could be revoked at any time 
on notice. American and English fney. of Law, vol. 14, 2nd ed., 


Pp. 1160; Mamerow v. Nat'l Lead Co,, 206 Ill, 626; Rapp v. Phoenix Ing. 


So., 113 111. 390; Columbia Graphophone Co. v. Niergarth, 201 Ill, App. 
397, Ford testified he wrote the lettere revoking his guaranty, put 


them in stamped envelopes and mailed them to plaintiff at Bewle, 
Arizona, Plaintiff just as positively testified he never received 
these letters or either of them, Ford admits Exhibit No. 8 of the 
lettere offered in evidence is only a copy. Ford does not produce any 
definite reply by plaintiff to either letter, and in an extended cor- 
respondence which continued up to the time that plaintiff quit work 
there is not a letter written by Ford to plaintiff which would in- 
dicate the guaranty had been revoked, On the contrary, in many of 
these letters Ford remitted money to plaintiff, and in one of thes 
told plaintiff he he needed money “to jack me up" (meaning Ferd), 

The trial Judge said that the subsequent letters were in- 
econgistent with the theory the guaranty had been revoked, and we think 
#0 too. In the course of the trial evidence was given by plaintiff's 
atterney to the effect that the letter marked Exhibit No. 8 had never 
been in his possession, although he said he might have seen it when 
plaintiff's deposition was taken, Defendant cites Wright v. Buchanan, 
287 Ill. 468, to the point that evidence thue given will be closely 
ecrutinized and is entitled to little weight, That is the law which 


we assume the trial court followed, We find no reversible error in the 
record, and the judgment will be affirmed, 


\ JUDGMENT AFFIRMED, 
O'f=nnor- © -4 MeSurely.J.. coneur. 

























odt wen eubut Iatnd off .domtate as G20 ,8f donat Yo hastamt ,e0er 
Tiivnielg oub tnhvess off oF aH ae Lor tt ald Yao foutee Be coouneatiu 
— iol .oonebtve oft 10 sonmvebrogme Seotinam of tamkage ef 
-« Miivaiele am tegtal aff qe? exced tnemgsul 2 setne —— 
—-s« ¥ee0 Baek vantage teempial sid dalst ew soeeet emat ode cOd : 
gay Va neraug aid tat Bbripteee Erol sa ,awad of et benpueen od a 
emit yon 2 begoven ad Sige cotdw yioRtamy Yalentioes 4 emtan att al 
0 Sek ,2f ,lev ,wet to ,goed dailgod baa casigond \.eotten ao 
i BSL xhnwgds .Y qgaf 7295 ,1{1 G09 ,.90 baal Lita .¥ womemal ORES qe 
aes fil 08 ,siuasgess .v «ch amedvedges) atgmuled 7905 fil OLf 4.92 
tuq Weavers aid golsever eget?el eff oder .od Bel tigeg?, fret 88S 
,eiwol fa Ttisetaia of mate Saitam Sue seqoLevne bequsve al medt 
| Sovieest asven ex beititess ylevisieeg as taut, VWiitetealt anosird 
arid Yo & .0ll FidLckes wPtwde Sv0% madd Lo wedste-no, exette exstit: 


jms soutotg ton agob bint .yqon # Ylae ad sonedive al bovetto exodtel | 


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st Bivow doddw Pidtatalg of Sxe% we setttas wevted a fom et onedh:) 
te Was oi ,Yertooe off ao .kedover need. bad yiueteng od? etaokh’ 
aedv Yo ono al bas ,Tisietslg oF Yenen hestiaes bxot erettel esecdt 
_oftae% gatnaen) “qu ou Seal of" ysaom Sebean od od. Tistatalg Biot’. 
-al view uxettel tueupeadue dt Fatt Sloe oghwl, tata? efP osc wise 
antes oy bas Sekover moed bag Wasgayg< ort Yxood? od sit tw — 
miaad⸗ata ys sovig eaw epsedive Inged ad? Ye satue9 edd ek. sof on 
: 1evon bat & ,of Bidide® bedxaq tedtel edd Yast PoetTe, esd ot Yentetds * 
f nedy th neo svad tdeim od Bian ed digvond le. .golaeeareg ald mt aged 
 iianasiou€ .¥ Sdatay anette TaAhOCIS .Gerled saw Molstaeged e'¥tsIntelq 
viesole od ifhe movtg aed? sonebive ast Sateq edt 08, (BBD LAE BR 
foldw wal eds al sadt tdhgiow ofsstl at betaisas at Ane peababeeentes: f 
AL nome sidtevores on Baty oW .bewoiter Savon Latte: elton “ 
iets Sahel d ba 


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41108 | — 
PEOPLE GF TRE oT/Ts jor ILLtsors,/ | ennor to 
⸗ 
Sefendgn a 
; MUBLOLPAL COURT 
Veo ) 
ROBERT ALLEN, —— 


Plaintiff in Errore 


| 807 1.4. 2417 
WR. PRESIDING JUSTICE HEBEL OfLIVERED THE OF INION OF THE COURT. 
This exse@ wes consolidated by leave of Vourt for the 
purpose of a hearing with three other cages in which writs of 
error had been issued to the Municipal Court of Chicage. All of 
the cases were heard on the same evidence and in the same pro- 
eeeding in the Municipal Court. The brief and abstract of record 
in this case is being considered by thie court as the brief and 
abstract of record in each of the other cases, The consolidated 
numbers in thie court are iios. 41105, 41108, 41109 and 41110. In 
case No. 41103, entikled People v. Thomss Murphy, the defendant, 
Thomas Murphy, heving died since the appeal was token, an order 
has heretofore been entered by this court, on sotion of attorneys 
for Thomas Murphy suggesting hie desth, abating the writ of error. 
The form of action is « ¢riminal prosecution by the 
People of the State of Illinois, plaintiff, v. Robert Alien, 
defenisnt, in the Municipal Court of Chiesgo, upen en information 
filed, The defendant was charged in the information that he “did 
then and there unlawfully and wilfully keep a room on the ocremises 
located st 34 So. Halsted 5St., in the City of Chionge, County of 
Cook, State of Illinois, for the purpose of recording and registering 
bets and »sgers on the speed of a beast, to-wit; « horee in 
Violation of Paragraph 336, Chapter 38, Smith-Hurds' Illinois 
Revised Statute 1931." The defendant wag arraigned and entered a 
plea of not guilty, and a trial wes had by a jury, which jury made 
® finding of guilty in manner and form ae Charged in the information. 
A judgment was entered by the court on the verdict adjudging the 
defendant guilty of the criminal offense in the language of the 


t Tite toes - oe 
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THO Laarbrwwe 


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ie AL YOS ' ater 
ePRaod SHY YO Workrso sa? Cerayrase Ancan SOL TeUL ORLC LOR oie 
edt tot diol to ovael yd betebt igemde sew Sca9 ChAT on yon 
to stirs dolde of eoped vedto eem? dete patxood @ te sseqma 
Yo if sognodd® Yo Yxu00 Leqtokmd edt Of Daueut mond had monye 
s@tq smee oft mi hae eoaebiv® sane add ao btsed: orem goede eat 
prone: to teetietde bas totvd oat .trmé@ Legtolaum oat ut garbeoo 
bas teitd sdf ee Ptv0o alist WW beorebtewe pated et) seo sidnimt ah 
bedabiloanc® edT .eaaan teAMto dt te fone at boner ko teoxteds 
“al OLLDD bar COEED )20L0> {SOLED Leon ous. PevoD neat ab exegeun | 
“tnabaoteb odt ywigitull senodT .¥ igor beleitan <20LLD alk Bee ete 
tsbte an ynoded vow SaMqas Ont onmLe BELT yatred yearRuM wamoT 
| eysotodie te woktom a6 ,txe0 ofnt yd Beteone Aved exotesered and 
-t0tts Yo thts oat gubteds .dtest — ————— 
‘edt xs notsyorcore Lentwteo © a Menton to. mot ent greet : 
ib  laetia drogen oy ,Yteemiiede yetendian: —— *1 
aoldewrotn? 2a aogy .agvokdd te t2v0d Leckotnuil oid at: 4tagbaere — 
BEB att dei mobtamtotat eM xd beg riade nem toabaskeb est, wees 4 
| 200 bree ‘ii? do moot # asew VLLitLte hoe yoiitendns ened? bar aedd | 
A" ge yemid® joys Yo weite emits aot boveksk sof 2, ga bagapot ‘A 






















iE gurdrotatgor bets ghittoob Yo Soqtin OH tot ymhoMLLsh Yo eiokh ood 
hee at setod » ;ttw-od simaed ate Beoqe ade — 
44ut ab u·ae tne, 88 rataeato 288 — ** p sod, y 

4 ey Rene 


A ¢ Baxeinty’ bua bbaghdted ‘ay Panes ead ont 
9 a : obs wrt dotdw gent Whe ai eked bas vers 
* i sao tomtotat ‘ed? at bogeads ef tot — 






2 

charge Contained in the information, snd the defendant was sentenced 
to pay a fine of $400, and Gostes taxed at 38,50; and the judgment 
centained a further order thet the fine be paid in essh or labor in 
the House of Uorreection until the fine and costs were paid or worked 
out at the rate of 91.50 per day for ¢ach day's work or the defendant 
discharged according to law. An execution eas ordered to issue 
against the defendant for the fine and costs and he »ns ordered 
Committed to the House of Correction of the City of Chicazo. It was 
further ordered that an execution iesue agsinst the defendant for 
the smount of the fine and costs and the mittious wes steyed fifteen 
days and the defendant given sixty days to file » bill of exceptions. 


The plesdings in the conse are the information and the plea of not 


guilty. 
The defendant urges that the information attempting to 


oharge the statutory offense under "An act to Prohibit Book-lsaking 
and Pool-selling, Approved May 31, 1887, 1. 1887, pe 95", and 
omitting to allege the phrase “with any book, instrusent, or device", 
charges no offense under the lows of the State of Iilinois, and that 
the judgment and conviction rendered vpon such information is void 
for vant of jurisdiction of the subject matter, and the judgment 
should be reversed and the defendant discharged. In the case at 

bar it is contended thet the information fails to charge any crime 
known to the laws of the State of illinois, and particularly to 
charge any crime under*An 4et to prohibit book-making and poole 
selling, approved May 31, 1887, L. 1887, p. 95" (Ch. 38, See, 336, 
Ill. eve Stat. 1939, State Bar Assen. Hd.) upon which this preseecution 
is based. The provisions of the statute insofar as it is necessary 
to quote the language of the sot provides “That any person who keeps 
any room, * * * with any book, instrument or device for the purvose 
of recording or registering bets or wagers, or of selling pools, or 
any person who records or registers bets or »sgers, or sells pools 
upon the result of any trial or contest of skill, speed or sower 

of endurance of man or beast * * * shall be punishable by imprisonment 





1 heonetaee sev Janhneteb edt bane ,sogtomtehai et ah bentataod egtedo 
saembu, ede Sar (00.8 te boxes aveoo, bag 10098, Yo ont? « yeq ot 
al todel to deed al Sieg ed okt ode toddt Tabr9, todvivt « beatetnee 





baxter to bieqg siee avaod has sagt odd Ltdaw noLgootto0. to sevel end 

tuehasteh ed? to diow a'yeh dose tot yob teq 08.48 36 Oat Od¢ fe tue 
@uent of betebto ahy oliyoexe aA eval oF gatbreoes _Deatadookh 
baxsbto ee~ od baa ateoo das east ant ‘rot saabaered ous —“ 

eae #1 .ogeoidtl te ysi0 eds te aoitoarro0 re seuoh ode ot —9 

tol ensdeas ee sit fantuge suael Hols ywoexe ae tant betebte xed? 

: meszttit beyate aew somittin sds bas etsoo bas ean oat te ‘avons « ons 

ig 

be 


Pe) a5 Zo xEk 


eenohtconxs to Lidd # efit of eyed wexie aeris m · da⸗r vb ode Pet, Bd od 
ton to seig¢ add ban Hoisnmrornl ort or · e200 oe as — 3 

[ of anitenette agdiestetas ed? Jott eegtw sonbneted edt. ee 
—— BadaeRiwweok fididgnt of den, aa* Kobay eenetto Yrotutats one oyendo | 
Y Me ee 
F (“Soiven se .trsmurntert ood yas atte" anetiq ont onal Le of ga2vttao 
ss fait Dew yetoeiil te etac? edt Re awl oae tohaw sonetie ow aepreda 
) btov 2 acitamrotat dour sos hetobses sektetyaes bac tmemghul ott 
fmomphusl oct bas gi9dIan Aaogdve om? Yo modtotbadwy to suv Tor 
tn 9299 odd at -begrodenib saahnateh: ent bas bestevex of b&vore 
saito yts @gzede ot slist audtemxotad odt todd bebnesaen wh G2 ted 
ot Ylaolueltueq bua ,etombiil te stet@ est to eel ed? Of awondt 

.82E 0008 BE od) MBC aq. TORE GE QVOOL ,AE! yt Pri ogo: 





bP Ea aes > as — Nt 


“ 


ae aes 


(2 Yiresseedt ef #4 as tetesad, sfutade edt to stoleiveta eA?. — X 
aqee% ode neeteq yas tact? weblvotg ton eft To syaugand one stoup of J 
oooq cu ed? tat ondweb co duemuttend qtood Yao thet 0% (moet gta 1 
to .oloog Batiiae tone .eTeyow To: NE OMEN p 





3 
in the County Jail for a period not longer then one (1) year, or by 
fine not exceeding §2,990 cr both. Frovided, however, that the 
provisions of this Act shall not apoly to the actual enclosure of 
fair or race track associations thot sre incorporsted under the 
laws of this state, during the actusl time of the meetings of said 
associations, oF within trenty~-four Sours before any such meetings." 
The defendant's theory is thet the information in the ease 
at bar attempts to charge an offense under the Act, but fails to 
charge a statutory crime because of the omission from the inforaation 
of an essentiel element contained in statutery definition of the 
orime, to-wit; "with any book, inetrument or device." It is further 
contended that, the information fsiling to charge any crime, the 
court had no jurisdiction of the subject matter, and having no 
jurisdiction of the subject matter, the judgment of conviction is 
void, and should be reversed and the defendant diseharged, DSefendant 
sites in support of this contention, Peopis v. Sonrd, 270 Ill. 140, 
wherein the court said: 
Me sagieestins pons sacaps sStOsus"at sure, a2 $ts* oy, Loatetces 
we said in Pe Ve 322 Ill. 70; ‘An indietment or 
information charging an offense defined by statute should be as 
descriptive of the offense as is the isnguage of the statute and 
should allege every substantial element ef the offense as defined 
by the statute.® The information here, put to that test, does 
not charge the defendant with any offense known to the law. 
Defendent suggests that the phrase omitted from the informa- 
tion in the case st bar wae contained in the statute defining the 
erime, and thet the omission of this phrase rendered the information 
void, because without it there waa no crim charged. | 
On the other hand, from the brief filed by the People, it 
is contended that the information igs not fatally defeetive and void 
because of 2 failure to set forth the phrase “with any book, instrusent 
or device." it is further contended that the information sufficiently 
charges a crime, and thet even if the information was defeetive in 


form, defendant should have taken advantage of this before the trial, 





to yteey (£1) one Race wvomtel fon Doiteq « ft Lieb ¢eeatod ont at 
ent tad? ,terswed ghebivot? sited tH 00048? gakbovors somoenst 

to Suveetows Lauter edt of YLoqt tom Elate toa atdt to stozatvera 
od? vetau beteroqresn! a1e ted? enekdwtooess doar? boat vo that 
Hise to agnitesr od? te em2t Lawton edd grituh ,veate aldt to ewad 
*,egiiteen dove ye eroted etived thet-ysmor? aldtiw so ,enolteicoeas 
oneo wit wt wodtemretal eft tel? ef Yromld attnwhasted aAT!) 6.0. 6. 
of eifst fwd ,¢ot oie Toby saaetTo aa dgralo of Stqmotta tod ge 

fi aeliesrotat ef? mott aofseimo edt to aawaued epithe Cotusese » speedo 
I . od? to soitinited yrotutete at bertetaoe sregele ictinsees ax to 
li sentert of FI *se0lveb to toenwrtent ,deod yas Atte" {the-ot yemtne 
: ait yomtre ye eytaso OF yabitet aottnmtotns One ,Indt bohaseneD 
ie on paived bar .rettan toofdue ad? to soktorbeltst ¢ on bad top 
et aattoivacs lo snompbul od? tet tam toobdue * edt 0 obtobbedeut 
tandastet ebagradowth — sae bas bestevex — § ape ohbay 





F 




















ORL oft] OTE banal · aigost ostaetnes etdd Yo *** — 
ond o⸗ Ox: deli 









tunaseibal as ted? aad? bel? of 

ar tt te SS 

to tnaomto mat 107 it Gee 

sie, Shetetn 248, $2 cane * 
a 

bonkte tne dt to, spaugin aad ory — 


———— fad? @ ——— 4 Stat nd debe ⏑ —— 


to eint 
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he -entolal off met? bedtiso saaudd ait sande oe —* 
odd padatter otutnt edd mt bentetacs eow tad to sand oft a2 mekd 
noktentotal e1? borskaer snare ebds To Mokealme edt tos? baa: <embte 
sbogvate salto aa gow erste ht stoode lw eousoed bier | 

th qelqoot ad? yo HOLLY Relte et mote yhmad nando 964 MOK eS 
——sbhov Sas evdtooted YLLete? temas AoLtantotAL wid) suds -behaetmcoval 
( ganeirttent glood yan dike" oetete edd dexet tea ot oumlte? ies 2088 
| vebinatties nottanrotal off tat Sebamed tedsuet el OL : 


es vae⸗ * edt to byes — ee 
4 FOU oi talk fee x —A ake Laat 0 F — 


* 

In support of these contentions, the Feople cite Soxmonwenlth v. 
Ferry, 146 iinss. 203, 15 8. E. 484, in which it is suggested thet the 
identical questicn now before thie court was presented. in that 

ease the Complaint failed to sllege thst the apparatus, books or 
other devices referred to, were fitted or intended for the purpose 
of registering bets, and the court there ssid; 

“It was not necessary to deseribe the aethod or manner 

of registering bets or s¢lli poole, or the particular contests 
which were sade the subject ef gambling. fhe defendant «as 
sufficiently informed of the charge agrinst him, although the 
indictment did not go into sinute detail." 
and further, in Cowsenreealth v. Glaney, 154 Mass. 128, 27 8. E. 1001, 
the court held that a complaint which only sileges the registering of 
bets is sufficient. in People v. Semmler, 345 Ill. 272, called to 
our attention, the Supreme Court in construing the statute prohibiting 
book~making, said that the exception stating that the sect shall not 
apply to the sctusl enclosures of fair or race-track associations 
lawfully incorporated and in operstion need not be negatived in an 
information charging the offense, ag the exception or previsoe has to 
do only with circumstances under which the act itself does not apply 
and has nothing to do with the description of the offense. 

Pisintiff argues thet, whereas, the lew York courts in 
construing its statute en book-msking maintain that the exception mst 
be pleaded in the information or else it is fatally defective and ean 
be attacked by a motion in arrest of judgment, and that, therefore, 
the New York decisions cited by defendant in this action are not 
applicable in Illinois under the interpretation of the statute in 
the case of People v. Semmler, supra, 

Upon consideration of the question involved, se have before 
us a8 gugeested by defendant two offenses; first, “that any person 
who keeps any room, * * * with any book, instrument or device for the 
purpose of recording or registering beta or wagers, or of selling 
pools, * * ** and second “or any person who records or registers bets 
OF wagers, oF seils pools upon the result of any trinl or contest of 
skill, speed or power of endurance of man or beast * * %,” Defendant 





(a MPLnanaomne? Oft9 oLg99% ont, snedimotneg event to tocqua Bt 
ie od? ted? betesuyue ef t2 doidw ad ehGb 4 oH Gd , 808, pooh OL gxezeg 
— tat a, .hetaenere gee erage efd? Oxelad won aodtooup. Lankanhtk 
to edoed seuteteqgg edt feat egeidea ef heliet Inieiques.sdt eae 
seogtay 4% tot hekhwetat to bet¢st ote” sod betrotes aeodvebredte 
|  gbdeas exed? txwoo od? bas ,eted gaizetetyes to 
coGaSS 333 33 
— —— 
—— o# oH TS .89L camel PEL .yoneI® .v Mehooumoayed at .rodtus Da 
o gadrsgeiges 903 wogeite Yine Moldy snteiquen ⸗ ꝓaa⸗ bied cauoo edt 
GH Hedno OTe ALT OM Redes ov Sigeet al .tnetosting at ated 
|  patdididorg atutaté eat gainztenon ai ttwoS aaerqe® edt atigddasts®, sup. 
| toa Liade tor sit? teat giltete sokigaoxe edt ted? baa eanthen-seng, 
“enottéboones doatt-e0e7 te tint to eptunetong Lawton, 99 ot uaa, 
fm od bovitagan ed ton been nolterego at ‘bas Detategteoat YListead 
ot esd outvorg to maltcecxs ot as qvonetto oft gatyzado weds omrodak 
tage tom enob tieast tor siz, ** — ——— Hone vine of 











| gusm nontqions ott ttt atetanan ghee t0bd 10 itil, * ecao⸗ 
" a⸗⸗ bae Settootet yiletet ef #2 sete ro soltemretal ‘odd mt ‘ed's od 
- \emoterad? yrede Bre (tetemhet fo teerte al aokton # yt bedoatts of 

| fot Oth Holter ait? al tachaston yt betto ittotetosd Pear a 
G2 etutete edt Yo nolsatenezesnd Oat witty” beard tte “i i 
: stttuiie” xetaded + abate 16 thio Sa” 
| ereted ovat tw wbeviovds dolfesup ede té nakterebitase noqth 
| Aoureq ye sedd* ,sarlt jeoaaetto owt Iuebaetes yo besedague a: | 
‘edd tot eotveb ro tasmutient «food yas itty ** * yador yaa * ae" 
|  gatilee te te yereger to ated guttetal ot Yo yalbrossr 16 bec r 

4s pted atetatuer to ebusoet ode coeteq te “t6¥ Biden bas — — * 
| Ye deotnes 16 Latrt iets Yo ‘tuto ‘eat slog ‘iteog wide: 
' tnsbasvec *.* * * fened to ane Yo sonemwhas to Tewoq 


















5 

suggeste thet under the first offense, because the words ‘with 

any book, instrument or device" was omitted, no charge of vielation 
ef this statute is made, and thet, therefore, the court erred in 
entering judguent on the verdict of the jury. However, when we come 
to consider the second provision called to our attention in language 
ag above stated it would seem thet the defendant hee vielated the 
atatute if he recorded or registered bets or wengers, or sold pools 
upon the result of any triol or contest of skill, speed or power of 
endurance of men or benst. ‘hen we consider further that the 
evidence thst «ns presented to the court and jury wes omitted from 
the record and hss not been preserved by defeniant, we have the 
right to assume that there «as evidence offered that justified the 
verdict of guilty ond the punishment as provided for in the judgment 
entered by the court. ‘e feel thst under the circumstances as we 
have them before us, the offense waa charged within the language 

of the statute and the defendant was notified of the charge 
sufficiently to be able to present his defense, and for the jury, 

te understand the offense and for the court te pass judgment upon 
the verdict. (People v. Yonaldsen, $41 Ill. 369). 

In People v. Cohen, 303 Ill. 522, the Supreme Court in 

part said; 

“= * * great niceties and strictness of pleading should 
only be countensneed and supported when it ia apparent thst 
defendant may be surprised on the trisl, or unable to meet the 
charge or make preparation for his defense for want of greater 
certainty or particularity." 

we sre of the opinion that the court did not err in 

entering 2 judgment on the verdict of guilty thet ees returned by 
the jury. it is further contended by the defendant that the 
judgment «ss void in that the court ordered as part of the judgment 
that the fine and costa be worked out in default of payment; but, 
it would seem from the Criminal Yode, See. 391, ch. 38, Ill. Rev. 
Stat. 1939, State Bar Agen. Fd., that any person convicted in a 


court of record of any misdemeanor under the Criminel Code. may be 








ditties” abtowe edt acusesd yoenstto teri? ads soba tat | ——— 
aottaletvy to agtsedo om ,bettime saw “solveb to taemuttent: ‘a 
al berre P90 odg ,sretored? , ted? ban nedas at stated “eaié Yo 
Snood Ow ede ,teverell .¥tet edt Yo totbrey eas a0 ‘taengtut gaitedae 
ganas i ai aoltastia two of belino nokedvory baoose ‘odd rob J 9 
ead? beteloiv ea taabneteb edt todd me98 biuow th bersze prods es Be 
aloog for Te ,4Rteyae to edad boregatgon te bebrovex ot Lt of utete 
te tereg 10 Senge ,ifbie to teepnoo x0 Int? yas to ron silt moc 
of? ted? vordtect teblenos ew aedt stoned xo mew to ‘coan bax 
novi baseiac axw yrut bas #ived bay of ‘beinseetq aor fod? somebive 
edt evad on ,tiahasteb yd bevresenq ned ton tea has Bugoer ‘edt 
ad Boz deteut tadé berovte somubtive wav rode tied? cans of fdghs 
| Gwoapbut ad ni 10d debivorg oa tmende tinue eat bas eth ‘to tetbrov 
. or Ge sseuet amywotto edt tobaw and? foot ov “two ‘edt Boxedue . 
opeugnal edt aldtiw bey rade oer onnette edt aan “ereted avdd ved 
' “ggradd 94% Yo bettivon saw tunbasteb edt ban ® vinth ot Ye 
etal on? tod tne ,someteb wid sheserq of Olds od oF yldnel 
‘nocu taengbut evoq of txuoo add rot bas senetto od? | oT 
(882 .f11 Oe —E wv siaeet) 


nd fuel omenque edt * +81 abe sandal + 






















— — B yabbooig te sventoizte bas esitooia tary eee 
faoteayee sl tt ade beteeqque baa om 
eat toon of eidany to gleitt ad? go pare reel fasbusteb d 
tegesta ta tare vot semeteh eid Tot mo : To egtedo — 
— — te Wankstese 
ai tre ton Sih Oeste O00 Soe notaigo td Ye ore co RY 
XG bomruter new tnt veiling to foLpiey ot a0 'Fiieagbin, 9 gets 
pnd tuabateb oat wi behaotaes sadéva? ef #5 seat eat 
dngmpbut sat Yo tray an Botebxo sued edt feds at Biov env : 
“ ; 2* J 
— jinemyrq to ¢Luateb Py tse bedtow ad eteob “bas | ea sit a 
+veF ofil ,88 wild ee e008 4dbod caa ia arv head 1 or ' 
f Rae * 
* a beseivnce noareq wee ‘tad eb “sftenh ‘we state 
Mt 7 xen abo fontnix0 odd reba . | 


4 


6 
required to work out euch fine and costs at the rete of $1.55 ner 
day. (Feople v. Herman, 245 Ill. App. 94; People v. Carey, 245 
111, App. 100.) 

From s considerstion of the record in this esse, we 
are of the opinion that there is no error in this record that would 
justify a reversal and accordingly the judgment is affirmed, 

JUDGSENT AFFIRMED. 


BURKE, J. CONCURS. 
DENIS E, SULLIVAN, Je OPECIALLY SONCU CHING: 
i agree with the conclusion, but not with all that is said. 











a 

19q O8.i% Yo Stn ont o2 staco ba oath dove tuo duow of bottupan 
. @O8 syste .v algo wR .agd .LLT Oh8 .gomees ov gigond) . . wb 
fy gooas eid? nf Broeex oct to sedtetebtsaoo w# mett > 
hives ted brooe: eit? ai totrs on ei erad? gant meimigo mit to ete 
- ghamaitis ei soemphet od? yLyridveccs hae Lastevret x ykiteut 

pO iaileria Teaco, ‘gw fe fabaycere at he up ntede 

pe Stents — be PS e Soa ae ii pit See The, SR eee! eee 

eek harren 7 PAD UOKO YdALOWER oh .AAVISIUR 6D OLMEE 


ebise ef tent Lin ditiv ton tud ,aokerionad ent dtly vetme To ooo >: sll 


Ra Bln St. es é eae a ee tout fate aeapee WE Stoke 


85 doy 4 Ed . J re op ay" ate tine "re Date ts sulSeuse 


tent oy ee ant Ma hayo tes 
“Ye ath ao ee aa Oras 
oat ta ea —2 wat tw 
arvish atd deonmre ot Gee Ot OR (gtoslers tum 
* ita ag f ne oe wie war Be , SF a re of 
(85 ehit G3) taeeehong’ «Sakina au⸗ 
a a kak tat ethtsity a7 Ree #3 


tmise Pee 


r of ¥ % mh 


Ho Sede Se Eee ees ol. BZe 





— a? A Yom SiaDeereh 
te Oey ree Ve et ae aire Te Weneuit 
' tp ERiterteo 

} fan? petkion Gee Ta wea OF 


ne Pie Se Seago 2 Be fsozme 
vaniws wee wt tadeen? €ef Fi + Uta ait 

eee Hotes tv az} ; ae t wy a ne: Writ to? Pond BA DigY wee fasnyhstl 
ts wi #4o Outten 4 akaoo ia waidt age tasks 

~~ li «Rt Lasinge> 8er wen mete olvgw @h 
— soevey Ya Gade RE embed tHe otodt {GOL ghatt 


tumlmivs ene ignihas toe nZrae Es Wie £2 Steet to Peace 


re * ro 


41109 






Ve MUNICIPAL COURT 
ELLIS GREENBERG, - 


; OF GHICAGO. 
Plaintiff in Errer, 


807 1.4.241° 


MR. PRESIDING JUSTICE HEBEL OELIVERED THE OPINION OF THE COURT. 
Having considered this case under sonsolidsted case 
Wo. 41108, the cases having been heard on the seme evidence and 
in the same croceeding in the Municipsl Court, and consolidated 
by leave of court for the purpose of hesring in this court, the 
opinion that ve have filed in case Neo. 41198 applies and controls 
in this case, 
Accordingly the judgment of the trial court is affirmed, 
AFFIRMED. 


BURKE, J. CONOURS 
DOEHIS HE. SULLIVAN, J, SPECIALLY CONOURRING AS IN 41108: 
i agree with the conclusion, but not with all that is ssid, 


















Tuer IAcEoTHUN 


sQOAOTHO TO 


“TAS.A.L SOS 

ePiO0 GHT TO WOIRIGO BHT CUAEVLIAG aasan ZOLTeUL ouzoreant — ne 

een hetebiioenes tebay sero ek? berabsendh gatven’* + * 

—* baw somebive ones wit ao Dthen mebd yatvad weasd Ont , “a 
ohare “RoteBiloanso fae grec Kototann 649 ne gadnonbony ome 0 oat mt 

| ait yeru0o ef4? at gadeoed Ye enoatug ed? to? #xu0d to 

alorines base seliqgs SOLES .of eaeo at heLit oved o ‘sntt ao on 


ebomelt?s al trvoe Isitt ed? to taemgbyt odt brobo⸗ 





— 
:QOLL WI 2A OKIATUOROD YAUARONIG 4b yWAVILIGG we 
 ebiee st teat Lis dtiv ton dud ,motawionge vd? dtiw serge I 





41119 


PEOPLE OF THE STATE OF. vlad — 





Je fendant}i — A 
PRUNE LEAL COURT 
Ve Baer 


JOHN RAMASHLA, OF CHICAGO. 


Je 


MS. PRESIDING JUSTICE HEBEL SELIVEXED THE OPINION OF THE SOURT, 


ee tee Mee” 


Plaintiff in trrer. 


Having considered this case under consolidated esse 
No, 41108, the cases having been heard on the came evidence and 
in the csme proceeding in the Municipal Court, and consolidsted 
by leave of court for the curpose of hearing in this court, the 
opinion that we have filed in case No. 41198 applies and controls 
in this case. 

accordingly the judgment of the trial eccurt is affirmed, 

AFFIRMED, 


BURKE, J. COHCURS 
DENWIG E, SULLIVAN, Je SPECIALLY CONCURRING AS IN 41108; 
i agree with the conclusion, but not with all that is said. 


aavoo aattvia⸗ \ | ¢ ye at eae —— 


oe 
Woke 


O04 PLO . 


‘Eas AT voOe sat ab Atte 


‘ex ERT 6 KOTHTIO BAT Civ JN SORTeT 
@na0 hetabifeaned Tehms seco vtdt borebseaeo gad ro 

ute @anebivs ames eft xo bared aeed piv ene et SOLED « 

betebiiesdoo Bea .ttust Laqteindst edd af yarbooneny saey 9 : 

ed? ,truco aids at gnltend Yo eseqtug: — ** 
olorinos taa ia COLL vel sane at Deny : noknige 

* ry ius 4 wae teh Oar “yess 
⸗ —— — 4 me lynn 7m 

oCEMAT ELA 


meas taht wer uepcrbaoh 


° 


:BOLL> HE GA OUINAVOHOO Vidaloase ob * 1 





41117 — 


PROPLE OF THE STATY OF IpLapors, / § 
, A ee,/ d 
Ve i /)* 
CHARLES PURKA, — 


App@ibant. 






APPEAL FYROM 


“ ONIMIBAL COURT 


307 TAB 2 
MR. PRESIDING JUSTEZCE HEBEL DELIVERED THE OPINION OF THE COURT. 

This is an apveal by the defendant to reverse an order of 
the Criminal Court of Cook County sustaining the State's amended 
motion to dismiss a written métion filed by defendant in the nature 
of = writ of error Seram nobis provided for by section 73 of the 
Practice Act. 

The defendant was indicted and convicted of larceny of 
property of the value ef $30.00 in the Criminal Court of Cook County. 
The fects stated in defendant’s amended motion in the nature of 
a writ of error coram nobis appear to be that when the defendant 
was arraigned on the indictment before the Honorable Michsel L. 
WeKinley, chief justice of the criminel court, it appearing that 
he vas wholly without funds to employ « lawyer, Bénjamin 0, Bechrach, 
the public defender of Cook County was appointed to represent him; 
and thot, theresfter, one, Morris H. Sechs, represented to the 
defendant that he was an assistant public defender, and the defendant, 
believing that he was the ettorney appointed and selected by the 
Sourt to represent him and having full feith and scenfidence in said 
Morris H. Sachs made a full snd true statement of the facts in 
connection with the charge against him, and relied wholly upon said 
Mortis H. Sxchs to present 211 and any of his legal defenses to the 
orime with which he was charged and to carefully prepare and present 
his defense upon the trial of the cause. It further appears from 
the facts stated in the written motion that the defendant had never 
been arrested, had had no experience in courts of law, and had 
no knowledge of legnl procedure; that he had no knowledge of the 
difference and digstinetion between the crimes of vetty larceny and 







MORY JADA 


TAVGO JARTMLAD 


CRE’ RT 08 


oTHUG ZHT VO NOLELGO SUT G2ARVIG, san, 9005395, ——— 
to Tebto as reves of danbagien edt yd eoggs oe af otet 

bebnewe a'ecet? odt gainiatoue ysauod Aogd to 1109 Lentutzd ot. 
etutan et at taabasheb Ss DOL soktew aectine » setwatb ot nottom 

adh TO 8Y aodtoon. oi basins 0) 











ck. ereatib} 
20 \ymaoned Yo hetotwnee han betekhal aay Inehasteb emt... — 
- .ytmue® wood to dol Lamimer? en? at 009088 ho suey eng Xo vetogong a, 
J Yo otuten ado al aottam hehnome e*teahaeteb ai botate atost est | 
tnahasteb oft aedw tadt sc oF teedqe siden aasep tors to tise 8 | \ J 
et [se0i¥ oldetonel add wroted tremsothad edt ao beaydarts he 
aat yadconagn tt «temo Lenumdxe ad 2e. —— J 
Asardoe 0 mhastaba yroyesd © yodque of aba tuadtim yore gon 
Aa duscorqon of Dotntonge aw viavod fad Yo ebaetab ektem edt. 
edt of botaeeerqer ,adec€ oH elrtee ono visteorodt ytedt bas 
i innbasteb ont bar ,Tebusteb OL kdise jantaieeese a2 gow Od test taahasteb 
edi yi begeslos bas besatoqee yertetrs sdt onw out teat gatvoriod 
hice mi eomshitace bas déict Livt gatvad das mid taosemqet of Fxu00 
at stont odt to tnometote ovtd hme List 2 sham adon® oH ekxiol 
bine soqv Ulodw beliot bac quid sentegs syrado ot Atty woktooaneo 
sd? of evensteh Loyol ald to wa ban Lis snoeomy of esost Meter 
tasesty baa exeqera YLiutets of bar beyzado enw of dotdw the emtto | 
mort BrAsqge xonttw? th .eeueo oMt Yo Leaea ond noqu ccanten 
seven bed dnshnoteb ont ted? moktom aeettiee od? at botete a1 
had tae yet to sittwoo mi sonoitegrs ¢ on bed 




















xy 


q oat to egbolwoas om had ea tede ee ” 
Bi bas Wroral yetey to comtre — — 


2 
grand lsreeny or of the difference in the punishment provided for 


the respective crimes; thst he had no knowledge se to the value 
of the telephone cable «hieh he ess charged with stealing. It is 
further alleged that defendant did net at any time suthorize said 
Yorris He Sacha either to represent him as his attorney or to 
waive a jury or enter s technical slea of not guilty or to stipulate 
to any evidence on his tehaif; thst Morris H. ¢achs is not the 
public defender of Cook County, th=t he was not am assistant public 
defender of Cook County, and that he had at no time been appointed 
as assistant public defender. It further apvenrs that as soon as 
the defendant was brought inte the courtroom of Judge ‘illiam J, 
Lindsay for trial on April 6, 1939, the seid Morrie H. @achs rne 
the first to address the Court stating “teehnienl ples of not guilty, 
jury weived, stipulate «s to evidence,” It further appesrs that 
Morris H. Sachs stipulated thst the value of the preperty alleged 
to have been taken by the defendent was $30, whereas, in truth, it 
is alleged that the value of esid property, new, wes $5.00, and 
that, but for the negligence and improper and unsuthorized cenduct 
of Morris fi. Sachs in stipulating to the velue of the aaid property, 
there would have been no evidence before the Court upon which a 
finding could be based fixing the value of the property taken; and 
that the errors of fact as charged occurred without any negligence 
on the part of the defendant, and that he was thereby deprived of 
a substential defense which he could have made at his trial, 

The amended motion in the nature of = writ of error 
Coram nobis was supported by the affidavit of the defendant, Charles 
Purks, who swore to the facts contained in the motion, snd by the 
affidavit of Harry Fritz, manager of the telephone departzent of 
the Grayber Electric Company, Inc., who made oath that the Graybar 
flectric Company +s engaged in the manufsoture and sale of electric 
goods and equipment, including telephone oable, and that from 
affiant's experience the retail price of twenty-five feet of the 
@able described in the indictment waa twenty cents per —* fe Ge Be 
Chicagoe 





2 a 





é 


SALAS 


Tot bebivere Inesdsingg edd aa oousTeRrsd od¢ to ta Weeral bare 


aulev edd oF e« sgbeLrond on bed Sel dade joontzo evitosqser ed¢ 
al 12 syatlonde diy begerde nor om dolity Sidgo onosgeles oft Yo 
biees suitodtus omit yas te tem 6b *hebasteb stadt beyeLin xedema 
OF to Yentetin aid en atd tnewon~en OF sodtle asdes® oh atttoK 
eteluqite of to yYtilug tea te seig foptadost x rocas to eu & ovtaw 
odd ton si sdone oH ehatel ted? jtiaded eid Ho Sonebive yas of 
atidug tasteless Ms tom exx on tad? ,ysmuvod deed Yo tebasteb oLiduq 
betaiogge aved emit on #2 hed od ted? bap aXinwod dooti to tebasteb 
as moon eA tad? staoqqs roddtet ¢% * Fees oe 4 otidug tustetces as 
o% metilin egbeb te moorttu0o edt otnt tdguotd sew nataon ed ent 
ame adoo® A sotxnu bing odd ,C8GL 48 Linga ao intzt tod yeebats | 


 q¥iitug tom to coke Lnokasioss® guttete sxyo, ode it eaorbhs ot ot daxtt od 


tedt ateoqae roddtut at * ponebeve. ot an shoves wat 
baygoli« YteqeT” adt to suisv ans 2%, pacatensee . elon, oH wet tol 
oh ydturt al ,onereds .O8) son tustaeted Ot yl sedet gerd grad of 
“Bas ,000d? ace ywee sXoregesg Dine * Satay ost. tome boyotie ot ( 


OZ 


toubaes were gag ban Teqorsad bas voney tiga ode cnet. emt 
a —— bles edt to eulev ont ot pattndugdte at * go⸗t oll otxren @ 


a 


s fo ide equ treo ont noted vonehtrs mene eonehive ¢ o* seog sveg Munn, ead? — 
“ba jaosed yereqory odd Xo oube outs guint boced og Dug gaibes? 
soneyiigon ws —— berxy990 dopredo ll toat te ents, od? fede 
_ te bevitqeb \deredt enw od teste hae yiadaeted ont 20 #uag edt ao 

oletet eis te oben — b4uoo ad dotdw eemereh Letinstedue, « 
torts to tity e@ Yo orut on ble a noite debseme OPT ois 
setradd stashnet eb odd to —J—— as we betsorqye sy sides aA%9o , 
ons YW hae ,toltom oa a mear⸗e taoo — odd ot Aten ode Are 

Yo tasmsraqeh onodgeies ode to négannn atte trisH to tivabstte 3 
radyand ad? tadt dtao eben ote gen _g Wann? oLt fOOiX sadyero og? ~ 

olttoole to elas bas omutoetenne one at begagae se — 


ac taa⸗ ‘bas ⸗ suodqetot ꝓa abotoat avaa ue %, 


Pog wT ehaaets 


‘edt to test n· caon⸗ ‘to eottg distet edt conekteqne 
i} pare 2 el — orl te k® —* 


——— —2 we ·a ptt taamgo tba ont mk 


































3 
The State filed an amended motion te dismiss which, 


after arguments heard, was overruled by the Oourt, and the State ras 
thereupon directed to answer the »#ended motion. The State filed 
its answer in which nene of the materiel ellegstions contained in 
defendant's motion were denied. when the cause enme on for he*ring, 
on the motion and anawer thereto, the state's xttorney made an 

orel motion for leave to withdrew its anewer, ond the Court there- 
upon sllowed the state to withdraw its answer and sustsined the 
State's amended motion to dismiss which had been previously denied, 
The Court thereupon entered an order denying the defendant's amended 
motion filed under section 73 of the Practice Act. 

The defendant contends that the court erred in sustaining 
the amended motion of the plaintiff te dismiss the defendant's amended 
petition in the nature of « writ of error corsm nobis and in denying 
defendant's said amended motion. The purpose ef the motion in the 
nature of 3 writ of error coram nobis is defined by our Supreme 
Court in the onse of People v. Crooks, 326 Ill. 266, 280, wherein 
the eoqurt stated in part as follows: 

“Errors of fsot which may be availed of on a writ of error cora 
nobis or under section 89 of our Practice act include duress, fraud 
and excusable mistake. " * * The writ of error cor b oF a 
motion under our statute, is sn appropriate reme n oriminal 
as well as Givil cases. Such a writ lies to set aside a 
conviction obtained by duress or fraud, or where by some excusable 
mistake or ignorance of the accused, and without negligence on 
his part, he has been deprived of « defense which he could have 
used at hie trial and whieh if known to the court would have 
revented a conviction, " * * The sufficiency of the motion which 
regarded as a deglaration in a writ of error gotse nebies or a 
motion under the statute, must be raised by demrrer, ples of 
Sok te by motion to dismiss, by pleading special 
matter in confession and avoidance, or by making an issue of 
fact by traversing the declaration." 


The defendant states that the outstanding fact in the esse 





is that because a lawyer, without any investigation or preparation 
of the case for trial, stipulated that the value of 25 feet of 
telephone cable was §30 whey, in truth end in fect, the value ens 
#5200, the defendant was wrongfully convicted of larceny and 
sentenced te the penitentiary for an indeterminate term of from one 
to ten years; and thet the true value of the property was a full 
and complete defense to the crime of larceny as charged, 













x“ efoidw eaimeth ot acitom bebmeae an hediy eteat@ od? le ’ 
. Bee BERTH Bde ham yIxued od W SedepvOvO Row ,binod Btwanyygte — 
befk? ater act .xetten obnten ad? tawene of boteetsd agquetedt 
(Mh Doakstio® eacttmedio Indvedem, eA). lo. sgamdolde al sowene eb. 
egoitesd ted ao omen owe off met? .oeteeb exer gostom af tarhagked 
hee SH YeaTOtte a eters odd ~otereds rONERe Dae aoltow, edt mo 
a o) e@nedd O2u00 odd Dac ,T9~eNe abl wetbddde et ovael sed. meigom dato 
ie edt Danieteus bas toeene Bi warbdshw of Btede edt Dowolls.noqu 
— beteeb YLasedverq aeod bad dotde sodmedh of aoltem, bebgems st otare 
a beboese e'iuchaoteb ocd gaiysoh tebre ae begetae aoguereds ¢xyeD edT 
gene 0A s0d00R7% St to GY sectose tehau beLsh sedten 
ss Bite tetewe ai herr etyeo OAs Sod? abaotneo snmbaeteb ·a a wy 
| — E attashasteb oft anigeib o¢ Thitndeig ed? Yo Rotten debaese edd 
pabyneb at baie gideg gegen torte to thtw 2 he exuvem eld ah aokeseed 
 edit:mh modtes 06% Yo — bebrows bisp e'yanbaereb 
 miarcet toe ed headteh af siden mereo seme te tine 9,20 exugea 
\mbenode 088 BOS .L6t O88 cadooai +7 Sigood te aso ade ab ted 
seroLlo® ee freq ms * oat 





ete adh * 9% %, 

fen a et 3 

8 ebhkes $66 oF tn a 6 a 
— ones Y of TO. ne 
PP ——— 


went ¢ blue oa anlar suneteb © To hey 
dolde rs 9 te ed? te yousle 


# 0 said manag satay seve yah 


Lstosg hbase —* 
te Bere rate 6 yaad — 2 bas Sie 
Pre a ops Ne 


—— ——— 
Rotterogste Te MOdImytIaevad Yaw duodtin .reywat a seunped isa a 
| te tas Ch To Audey oid taud Dotolomdtn enka Tok ene anh 20 
naw culsy odt .tonk ai bas dyed ok ggade 056 ann eLdeo enasdqeds at 
bas yaooxed De hedtndvage — —* @ 400 — 







— 
SO ee aE ne eS ie eee aS 






ees 
— 





a 
Soungel for the defendant urge that the sssistant Public 


Defender, that appeared for the defendant st the trial as defendant's 
attorney, did not properly present the defense thut should have 
been urged on behalf of defendent, and that by reason of his action 
the defendant was deprived of the defense thet the velue of the 
property that ess involved in the charge of lsroeny was not ©39,99, 
but was se 2 fact worth only $5.00, and that, therefore, by his 
failure to urge the oquestion, the defendant ess found guilty of 
larceny of property of the value of 930.99 and punished by being 
incarcerated in the penitentiary for such act. The faet is, 
however, that the office of Public Sefender is provided for by 
Statute in Chapter 34, secs, 165-c to 16é3-j, inclusive, Illinois 
Revised Statutes, 1939, and the act provided for the appointment of 
assistants to such Public S.efender, ‘hen this assistant apnvesred 
before the Gourt it does not appear that et any time during the 
course of the trial sn objection waa asde by defendant to his 
serving se Gounsel, It is the rule thet in order to take advantage 
of facts comphained of, objection mat be made to the court se that 
the court could pass upon the iteme complained of. We mist remember 
thet in order that advantage be taken of any acts that appeared 
at the trial, the act complained of aust be made known to the court, 
The Court in the case of Pegple v. Crooks, 326 Ill, 266, 
held that fraud on the part of the opposing party or his counsel 
that prevents one from making his defense is such an error of fact 
ag ean be availed of on writ of error coram nobis or under the 
statute aforesaid, The writ of error coram nobis, or a motion under 
said statute, is an appropriate remedy in criminal cases es well as 
in civil cases, fhe court further held that such « writ lies te set 
aside a conviction obtained by duress or fraud, or where by some 
exOusable mistske or ignorance of the acoused, and without negligence 
om his part, he has been deprived of a defense which he could have 
used at his trial and which if known to the court would have prevented 
a Conviction. The fsets, however, as stated in the petition filed 
by the defendant, were known to the Court, 





i ofidwi deetetnes ef tect agity taehaeted edd tot Leanwod 

E — — ae feted e@% te tnodhote® df tot Bemnsque todd (tohasted 

overt Bloéde tade eemetob ont dmeeetg YLteqetq ton Blb ,Yortod ea 

noltoe abd to nosvet wi gate Bae ,Inohasteb te tinded ao begay moed 

ant to sulew edt tert? esnetob ent te Hevitqeb dew tnabadteb’ ene 

.O0.08% tou enw yreotel to sprende ed? ai boviovn? enw tant ysreqorg 

gid ed .stototedt , fede hae .00.88 Ylno dotde fost s ae ean od” 

t6 Ytling heust sew daeBereteb off ydobteeus od¢ egxu of “oTULiAt® 

‘ prtod yt bedetnug bie 96.08% to sofev ont te Yroqete te yweotel 

,el feet off tow dove Ot yeltawtiaey oft al betavéeotzoal’ 

yd tot debivorq ef Tebastsd oLidet Yo beLtto edt sedd crovered 

J efestiil ,eviavlont .{-08L of 0-88L ,e0ne SE TedqadD as etutars 

he tesmtatones ate tot Hebtvers sou Od hae YOREL Yesdubste Béetven® 
| beeneces tantadsan saat code .rebtetel Obtet deme et wtangetede 
‘ont uaiwh sett yore te tend teoqqn tom week ot eeNed Sad ereteg 
wis of trabasted yd Ghee ane mohtostds aa Letrt eae Yo on twed” 
ss ggetacrhe ade? of tebed as tent wlue odd o2 OL Koamide ed garvies” | 
| tat 08 true ant of Odom od team nottnetdo {ko beathaqtos atest Yoo 
rodmemet teat oF te deakeiqnod emott sit asgu gong biugd’ etH0e eds 
— ddd ef08 Ye to expt od ayadanvds fede webte aE ade | 
sto? at of mons shes 9d tau To boatalanes #64 Odd zuatei ‘atte 
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The other suggestion that seems to be urged by the 
defendant is the fact that the assistent publie defender had stisu- 
lated to the value of 25 feet of telephone csble as being °30,.00, 
and thet ne evidence was offered on behalf of defendant that would 
indioate otherwise; but it does appear that the issue of value was 
pefore the court and that defendant by hia attorney offered in 
evidence the witness, James J. Cunningham, snd he testified that he 
fixed the vaiue before the justice of the pesee at the vreliminary 
hearing of this matter st $8.50. It is suggested by counsel for 
the State that no doubt defendant's counsel hed a justifiable reason 
for assuming that in view of the feot that witness Cunningham had 
previously fixed the value of the oroperty st $8.50 that the trial 
Court would, if he were in doubt os to the value, resolve that 
doubt in favor of the defendant, and on the other hand it seems that 
the court was Convinced that the value of the property was 30.90. 
And go, in considering these facts, the question was squarely before 
the court. In Gould v. Ysatsen, 8 Ili, spp. 242, 247, this court ssid: 
“It is apparent from these suthorities that the facet upon which 
the error is predicated, in order to avail under this erit, must 
be matter not part of the issues tried by the court, but something 
aliunde, which, if presented to the court at the trial, would 
have absolutely precluded the judgment ss rendered, and not = fact 
merely bearing upon the issves adjudged, however conclusive it 
might have been of such issues. It is at least questionable if 
the scope of the writ st common lew, and hence of the motion, 
which is here 5 substituté for it, is not limited by well 
established practice to such cases as are enumerated in the text 
and decisions above quoted. Hut it is in any event suite clear 
that it haa never had, in the practice of the common lax, 2 scope 
wide enough to reach any error of fact, which was embraced in 
the conclusion of the court upon the issues of fact sdjudged, 
whether error in passing upon facts submitted or an erroneous con- 
clusion, beosuse certain facta, which would heve been conclusive 
of the iseves, were not presented. * 

This decision was based upon an action which was in the neture of 

a writ of error coram nobis, and in determining the question now 

involved, we believe it to be conclusive on the question we have here, 

If the defendant wished to appeal from the decision of the court, 

of course, he could have teken the action to the appesis court and 

have the court pass upon the question as to whether the evidence 

justified the judgment entered by the court. We objections were 


made - he seeks to overcome the force of the conclusion reached 








rp )* 
— 





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by the court by questioning the facts that were heard on the trial. 
It appears from the record «9 we find it that the questions before 
the court below were that the evidence did not justify the verdict 
rather than that there was 2 conceeluent of facts through fraud or 
subterfuge. 

There was also 2 further cuestion called to our attention 
by the States Attorney, and that is that the defendant is free on 
parole and for that reason, being on parole, that defendant raived 
his right to this appeal. However, we are not inclined to agree 
with the contention of counsel, It does appear that defendant is 
on parole, and that his release from the penitentiary isa conditional. 
The conviction is still in force ss governed by the statute, which 
is chapter 38, sec. 807, Ille Reve St., 1939, which reeds in part 
23 follows; 

“ * © ®and, provided, further that ali prisoners and wards a0 

temporsrily released upo parole, shall, st sll times, until 

the receipt of their finsl discharge, be considered in the 

0 ge custody of the officers of the Department of Public Welf-re, 
shall, during the said time, be considered as remaining 

under Gonviction for the crime or offense of which they were 

convicted and sentenced or coumitted and subject to be taken 

at any time within the encloamre of such penitentiary, reforn- 

atory and inetitution herein mentioned. * * 

This contention was called to our attention by the State's 
Attorney by motion to dismiss the appeal, which motion eas denied, 
but leawe given to file an additional brief. In view of the fact 
that we have psssed on the merits, it will not be necessary to pases 
on this question as asked by the state. 

For the ressons we heave indicated, the order that was 


entered by the court dismissing the sritten motion that wae filed by 


defendant in the nature of a writ of error sorsm nobig is »ffirmed. 
aa AF TIRMED. 
BURKE, J. ANG SULLIVAN, J. GONCUR, 








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APPEAL FROM 





CRIMINAL COURT 


GOGK COUNTY. 


307 L.A. 243! 

BR. JUSTICE BURKE DELIVERED THE GPINSION GF THE COURT, 

ON July 15, 1939, Giadys *ittenmeyer swore to 2 comple int 
before a Police Magistrate at O&@k Lawn, Cook County, Iliimoeis, «nd 
therein charged thst the defendant, Ghnarles £. Witchell, was the 
father of a female child which she delivered on May 6, 1939, 
Sefendant was apprehended. He was granted = change of veme from 
the Police Hagistrete to ea Justice of the Pesce. The lstter heard 
the testimony offered by the respective partice and found that the 
ehild was born to the prosecutrix and that there was probeble cause 
to believe thet the defendant was the father. The Justice of the 
Peaoe required defendant to give bail in the sum of $2,000 to answer 
the charge in the Criminal Court of Cook County. In the Criminal 
Gourt a jury wns waived and the cause was submitted to the court, 

At the conclusion of the trial the court found thot the defendant 
was the father of the child, A motion for a new trial was overruled, 
The court entered judgment on the finding, which required defendant 
to pay the prosecutrix the sum of $1,100.00 as follows; $200.00. 

in @qual quarterly installments for the first year after the date 

of the birth of the child, and the sum of $100 yearly for nine yeors 
succeeding the first year, also in quarterly installments. The © 


a ee ee ee ee 


defendant furnished « bond with surety, conditioned that he would 
pay the 71,100.00 as required by the judgment order. He then filed 
this appeal for the purpose of reversing the judgment. Defendant's 
theory of the conse is that “the testimony of the mother uncorroborated | 
by other testimony or by surrounding circumstances is not sufficient 

to convict where the defendant st sll times denied any act of inter=- 
course with the mother, or that he was in any «sy responsible fer 

the birth of the child.” fhe theory of the prosecutrix, as stated 










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2 
in defendent's brief, is “that the evidence adduced at the trial is 
sufficient for conviction." 

The first criticism leveled =t the judgment is that the 
testimony of the mother wis uncorreborsted. The second point urged 
is that the judgment is not supported by the evidence. The proseeu- 
trix replies that her testimony was corroborated and that the 
judgment is supported by the evidence. fhese two points invelve 5 
consideration of the testimony. In order to better understend the 
case, we have aerefully read the transoript of the testimony. 8efore 
discussing the testizeny, it is timely for ue to say thet, proceedings 
in bastardy, being civil in their neture, the rules of evidence 
thet govern in civil cases apply, and the peternity of a child may 
be proved by & prepondernnce of evidence alone and need not be 
eatablished beyond 2 rensonable doubt. ‘there the evidence is con- 
flicting, the issue as to whether the defendant is the father of the 
bastard child is 2 Question of fact. Likewise, the credibility of 
the witnesses, the weight to be given their testimony, the opportun=- 
ities for intercourse, the durstion of the period of gestation, the 
constancy of prosecutrix's accusation, are all matters which are 
properly ieft to the jury, or to the trial judge when » jury is waived. 

In summarizing the testimony, we note thet Gladys Witten- 
meyer, the presecutrix, testified that in June, 1938, she was living 
with an older sister at South Seloit, Illinois; thst the sister eas 
married; that she, the witness, wos then 22 years of age; that she 
anawered an advertisewent for a housekeeper, which appeared in « 
Chiesgo newspaper; that she wrote to defendant, who lived at 9618 
Cook Avenue, Oak Lawn, Illinois; thet defendant replied to her letter 
and asked for «a pieture, which she sent to him; that defendant drove 
to South Seloit on June 4th or Sth, 1938; thet she accompanied him 
in his sutomobile which he drove to his home in Oak Lawn; thet he 
told her she would have to take care of a “pair of twins thet were 
two and s helf years old at the tim and do the housework"; that when 





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» 
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3 

she arrived at his home she learned thet he had four children; 

thet there wes an i8 year old boy, Cheries Jr., and a 16 year old 
boy, Wiliiam; thet in addition to the four chiidren in the house were 
® woman nemed Hrs. Sena Surham and her 9 yeer old daughter; th<t on 
the premises was a house which he had made inte two spartments; 

thet tenants were living upstairs; thet the premises occupied by 

the 5 Mitehelis, the 2 Surhams «nd Gladys consisted of a sun porch, 

a living room, a dining room, = bedroom and a kitchen; that one of 
the tro older boys slept in the basement and the other one slept on 
the sun porch; that the twins slept in 2 cribs in the bedroom; that 
Gladys also slept in the bedroom; thet defendant was 4 railroad man, 
and that his hours of employment varied; thet defeniant alse slept 
in the bedroom “unless the older boys were up’; that if the two 
older boys sere up, he slept on the davenport; thet she srrived there 
on a Sunday and thet urs. Durham and her daughter left on the follow 
ing Thumsdsy; thet defendant told Mrs, Jurham that Gladys wes his 
cousin who was there on 4 visit and that he was going to ask Gladys 
to stay; thet Mrs. Ourhem anid her aunt was sick and she left on 
Thursdsy; that on the journey by sutomobile from South Beloit te 

his home defendant stopped out by the airport and made an improper 
suggestion to her; that after arriving in the vicinity of Chieago 

he "drove around the city a while. He didn't know whether to take 

me out to his home on account of that woman being there"; that Gladys 
and defendant arrived at the latter's home about midnight; that she 
slept on the day bed on the porth; thet the first time she had inter- 
course with him was on Friday, the day after urs, Durham and her 
daughter left, which she fixed at about the 10th or llth of June, 1938; 
_ that the act of intereourse took place in the bedroom where the twins 
slept; thet she also had intercourse on the following evening and 
thereafter three or four times 2 week until the first part of 
September, 1938; that her last menstretion befere the baby was on 
July 4, 1938; that the first part of September she found out thet 

she wes pregnant, thet she had been sick to her stomach and dizzy; 























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4 

that she talked to the isdy upstairs; thet “the lady upstairs told 
me"; that she then tulked to defendant about her pregnancy, and 
thet he, defendant “asid it was = lie"; thst later she had a further 
eonvers2tion with him sbout her pregnancy, and thet “he sent me 

home ebout the 25th of September and told me it was = lie, but he 
beat me up before th=t"; that she vent beck to her sister's home at 
South Beloit; that when defendant hired her he sgreed to pay her 
wages of $5.00 a week; that during the period thet she eae working 
for defendant she did not receive any salary; that she =2s home rith 
her sister two days, and thet her sister sent her beck; thet she 
came back to the Witehell home, end that when she returned to his 
home, his wife wes there; that she again talked to him about her 
pregnancy and told hia that he would have to help her out; that he 
gaid "it wasn’t his and he laughed at me"; that he sent her beck home; 
that she returned to South Beloit; that she came back to Chicage in 
Hovember, 1938, and worked for a family on the south side; thet 
three months before the baby #as born, she rent to the Jefferson 
Park Hospital in Chicago for the ourpose of prenatal ecsre; that she 
agreed to do work such as sorubbing and esshing in order to pay for 
the hospital and medicel charges; that defendant did not call on her 
while she was in the hospital, end thet = female child was bern on 
Way 6, 1939. On crosa-exemination she stated that she eas not a 
mrried woman, but that when defendant calléd on her at South Seloit 
she told him thet she had been married to a sailor; she denied that 
she wrote a ietter to defendant in which she ssid she had taken a 
picture “for just that oceasion*} she then identified » letter dated 
June i, 1938, as the one she wrote to defendant; that the oldest 

bey Charles slept in the basement; that “illiam, the 16 year eld boy, 
slept on the sun porch on an army cot; she denied thot she st any 
time slept with Yililiam, and stated thet he slept on the army cot 


and she slept on the day bed on the sun poreh. She testified further, 
On Cross-examination, that while she was sleeping on the day bed 


(? 


Bo 


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bled ethateqy ybel edt" tad? jeutetequ oe ent of —E Ral feds 


baz , Yorang2t4 rod tues tashastob ot bediat medt Sie Fa soll or 

redetut 6 bed oda teved ted? 5 "eli o adel #i bise* tasbaot sb aod 3 seas 

em tanec #0" todd bane , YotamgoTg og tuods mid dtiw aotea are vas⸗ 

ud ,ofi = gew #2 om Biot hae gedmesqes to aeas ad? suede emed 

*. sno —— tod of deed taew ode tad? tess etoted Ww on aed 

red yeq of heotge on ted dortd sachasteb aede tudd tocea dtuge 

— yabttow enw ode tad? beitteq sdt gndxub trdt joo s 0005? To aegew 

ditty emod ser ode tadt jytaiee ys ovieoet tom bth ede sanbagted sot 
ede ted? ; Hod ved tise totals ted tod? Bas ,eynh ort tetete red 


rod suede mid of bedLe? nicga ode tod? jotedt aay stiw ald , 
ig _yoaod dosed Ted tase od tests i*an te boauuul od dna etd. flaney £8" Mige 


todt sende dsuvos sit ae Video? ® tet dauxnon bag ag Fe ou 

| moetsttot oat ot daon ocia wrod ney Wiad el? exoked adtaon ora⸗ 
sie tad? jezae Intanong te soot sd¢ tot opnokdd a Sathana’ An 
te tot yeq of tebre af gutsiaoy Man gatddircoe es down Atgx ob of Baanye 
| * tad a0 Ifo toa bib duabamsteb tad? jasgrade Leathe Bas tathqeed edt 


J 





s ton Bor ) one teds betete ete, aoits limsxe-eeoto AO SECL .O Yel 

| tole acuos ts ted ao bOiieo saehasted made ‘teat tue Aenon belit as 
tat beiaab oda jxoliae a oe heteyan need Dat ode tat Ais Alot Ap 

2B aoa⸗⸗ bed sde bhee ene doide nd Lf. 
_betad wettest a bolttinens goae ode f'netasove tnd? tout, tot" gxutete 

' teeblo ont feds iemenaored ot Stoty ede smo adt ae So a 
Yoo bio taey és ot camel Lite Ri os eds phe X 








bed va ot. na, aadgeese a * ss fate A 





Sit of Daqumtes, gfe apdw ted? tne ,omed. Shageeel, Ot? 08 hey say? 
J 2d stadt zecc ted gfed o? sved bivew ed ted? aid bio? bas yonangore it 


al ogee rao — ined ouae ote taa⸗ ittoled 63008 ot bentytet oda gads : 










ao mod kaw bLtdo slemer s toas bas gintiqeod 22 At aw one oh tde 


stab of ro¢tel 4 efere ode 


| 


5 
and William was sleeping on the army cot, defendant attempted to 


come into bed with her, but thet she told him that Wiilism «as 
sleeping there =nd that he ‘should have more sense, a man of his 
age"; that he then went beck to the house. She wae then asked 
questions in an attempt to impeach her on the basis of answers given 
at the hearing before the Justice of the Peace. Ghe testified that 
“we told her {¥rs, ©urham] that I was a cousin so as to have the 
respect of the commnity out there. No one knew thet I head had the 
baby until I went back there after the baby was bern®. She denied 
that she did anything improper with reapect to either of the tro 
older boys. She admitted that she might have put her arm around 

the neck of either of the boys as s friendly gesture, and that 
defendant “bDawled me out once because I wss kidding with the oldest 
boy. iI was helping him out with his studies and I was sitting on 
his knee one day and he bawled me out for it." She further testified 
on Cross-@xamination that she wished to change her testimony on 
direct examination to the effect that defendant had not visited her 
at the hospital. She testified thet he visited her once when she 
was working in the hospital laundry; thet he did not give her any 
money. She wes also asked questions purporting to show thet in 

the preliminary hearing she testified he had visited her at the 
hospital two or three times. She answered that she understood that 
he had visited the hospital several times but that she sew him only 
once; that she was informed that he had come there on other occasions 
and thet it is » rule of the hospital thet no information is given 
out “when you work for your delivery"; that st the time the baby 

wad bern she did not give any name at the hospital; that the bsby 
wes then taken to the Gradle, an infant asylum in Fvsnsten, Illinois, 
where she gave a fictitious name for the father of the child; thet 
"we were told thet we did not have to name the father®; that at 

the hospital she was not naked to name the father of the child; that 
the job of the hospital end the doctors is to deliver the child, and 
that they do not care whe the father of the child is; that while she 





ia 


ot hetqmetts dacbasteb ion vers va⸗ ao yeigoosta caw matiite has 
sen wetiity tad? whd bles ede tedt sud yvad déte Bed ode deide 
eid to aon 9 ,onmee etom oved bivoda’ ed todt ban etedt galqoote 
bower aed? cov of esndod Oct oF doa fade aedt od tadd 3 "She 
asvig etewens to eleed eit ao rod descend ot tomatts ae al éiolte4yo 
ted? bektisess ode 20004 add to sodsanh odd seead getiuesd odd te 
7 edt evad of oa on ainvoo 5 ben i bald fmntica! . ted bide ‘ow 
edt bad best i ted? word ono Ok o@rodd ‘tuo Ore t oo ont Ys fooqe st 
| betmed sie ."arod saw Wed one rotts oed? decd snow T itddw Yted 
ow? eit to tedtie of tosqest dtlw tegetomt gntdewes bab one sadd 
havete wte tod tue oved tifgde ole todd hettisbe 948 sayod toile 
ted? Sto gatutagy Ubnert a ee ‘ayod odd to reidtte Yo dota ‘ad 
taebio edt div gatbbtd aew I eeuaned some tuo om Detmad’ & 

fig Qatttte eer I bas eetbute afd Atle duo més galgted eev toyed 
sodeect adm "0h act tuo on belned Oa bbb wb me send and 
ao Ynoultest ret sgande of bedetw ede todd motteninaxo~aeeré 6 
red detisiy ton bad snshaetad teats posite edd of sottarinor® seoKts 
ade acy somo tod bettery sd tect beatiteoe one —E odd th 
¥ ‘te ved evig ton bib od dnl avenue & Letiqeeit ode at yabitow er 
ai fod? vode o¢ gaittoc tay atotteaus fades oels ci alt Yorn 

‘edt te 19M better bad of beltivost ede yalesod Yat ‘ 
ted? beotebny ete todd borewene sae soemkd sia ed ed tab 
“Yo abd woe one tedt tad vomit Lerevse Las icwoit odd bodtaty bad’ oi 
enolensoe qedto no etedt omnes bad ed todd bownotad adw vide todd joie 
neviy st nottemtotat om toss Lstiqeod ent te sivt ef te Fits bats 
(Med edt emit ont te tedt EMerowiien ‘toy tot itsiow iy Malta ‘Pilo 
Wed ode tests jet iaso⸗ edt aa ones ‘wie oviy tom BED —E 
setoa Hit tot onevi at wulyes tustat as | geben edt of stoked mend tee 
? tons ibitde edt te rodds% edt — oman avoltitort » 5 Sealy “itd eats 













te todd ;*x9d0e% odd omen of | ved tom bah ow oe | 


taste qbilde sat to redder edt omen “of badas ‘Yon paw ede 1: 


— os —— hes — oat bas Laétevot oo — 





* 


6 

worked at the itehell hoege she went into Chiesgo 2 couple ef times 
to visit a girl friend; thet she did not go inte Chieage while 

Mrs. Durham was at the house; thet after going to Chicago she 
arrived home at 10 er i1 o'clock in the evening, and that she did 
not come in as late as 32 or 3 in the morning. She testified further 
that she had pictures taken but not for the surpose of sending a 
pieture to defendant; also thet she told him that she had some 
pietures taken for an “oocagion just like this". She denied that 
ghe had intercourse with any one other than defendant; sdmitted that 
while she was at the Mitchell home she beenme acquainted with a boy 
in the neighborhood by the name of Low “alters but that she was not 
going with him; that sometimes the itchell boys, ‘altem and herself 
played games et the Mitehell home, or in ‘alters's aister's home in 
the neighborhood; also that she visited Miverview Park in company 
with Walters and others, 

Antoinette Thomas, cniled by the People, testified that she 
lived in a house sbout 75 feet from the Mitehell house; that she 
lived there since May, 1913; thst she enw defendant “bring this girl"; 
thet she saw defendant and the girl go shopping “or some place"; that 
she did not see Gladys coming or going from the Kitehell home with 
anyone else; thet Gladys was a "very good wateh girl". Mrs. Hicherd 
Edema, cailed by the People, testified that at the time she testified 
she lived about a block away from the Mitchells; thot formerly she 
was a tenent of the defendant and rented the upstairs fiat from 
Jamuary ist to September ist, 1939; that while she lived at the 
Witchell home she washed in the bas¢ment; thet she was then asked, 
‘are there steeping quarters downstairs?" snd she answered, *there 
wasn't when I moved but they have mede up two rooms down there since 
while I was living there"; Q. "While you lived there do you personally 
know who siept in the basement of the Hitehell home?* A. "Yes, sir.* 
She then stated that she did not know Gladys, the prosecutrix, 

“last year"; that she met Gladys when she came back “thia year". 





c 





eomk? to aiguos « ogeotdd ofat tuew ode spot Liedoetx ode as Dexter 

elide opens so otat oh tou bib ede tat — inky a thety of 

erik opeoidt of goiog tofte tors jeeuod ont ts eew “madtul oxk 

bib eite fedt Bas ,onineve ont ni dnetoto ir ‘to OL ta — bovitte 

eeierst Beftiseed oa? sgadiwow on? Ad 8 co ¢ be otal es mi ence don 

& Bitibaee to Seomkus oft xo? You Bud heded astutolg had ode tax 

anos hetf sie tady mid Bod ode taut outa jaunhaeted of exudetq 

tet? bwknwb 9x2 ated oki seut Motesood” ma tot mexad souw¥0la 

todd betzimhe j2netneYsh hewt Sonts sto ys délw setuootosat Bad ode 

yor # déis betalevpos emxoed sde smod Iiedodiu od? te enw ede ollie 

ton ate ode tod? tu ardticy wol Yo omen ont vd boodroddiy ton tan ond al 

tfoerei bhe meta .eyod Ifedotiv od? ebmbtesos ee Op ee 3 

“mh mod e'retete Poretic® ai ro yswod Itedotin ‘odd "gn penay “Sones been 
cand at xe welvrsvil’ betleiy ede tedd onls Agia ea “eae — 

—E bas axetil ddte 

ede todd bolttitas? ,eleoe! adé yd Seiieao “Vesna? cttentoea * 
qde tedt j@avod Lladetie edt wort fost && tuods ‘Samed a at *8 

 penengs ‘pide yatsd’ tastasteb wae ore ted? yee een A—“ * * 
————— 

ted {*edelq omoe to” gatqzede on Iniy ait bas ‘tnabaot eb ada teat 

stv sued {Shot sa? next gales to —— evbali 600 doa vit ee 

buotol® secu 3 *iahy dosew boeg Ytow* « eaw etbsld tedd Roe oe 

bettiteed ode omts edt te tadt BSEisieee {biqgeos ‘sate vilos aad 

Site Yfxonrer tad jects mdi bad Mort yews BOela's suede bevil ode 

mow: Pett ettnsegh Sif pedaer bal dunbmeteb ot * —* * 

‘edd te bowlt eae efidw ¢oat JOOOL Fel xedmotqod of del yxanms 

belles abdy ecw ba ddd [dndnsand 600 Al bedeow ode eid iethi 

otsit" betevend fe Bak "Texkasenwsh etodtaup galqeads o1od 4 

| “Woke sroat neod amodx owt qu bbem oved yadt “jel Seta T te Hele 

| ylintoeted wey ob exedt BovEL woy atial® <p {erent ‘palvil Gow t stig 

* .eoY" oA "Temod Ifedotiu edt to ‘tnemeesd ot yal ale — 

‘wtixiuos207¢ ont sevpaty wont tom bib one tile ‘bos 


bytt oF ateteps 207 fas ae. > BS 
—— a⸗⸗ doad ome | eas aoe ode “faad"| 
; *, ? to Wars Sed ‘ite os Bah * 



























Robi 


7 

@he was then esked, “but you didn't see her st any time when she 
worked at Miteheli's at s117" and she answered, “Yes, this summer 

I did. I gave her every dey". The court then asked, ‘when did she 
Come to work this summer, madam, in 19397" The witness answered, 

"I believe it was in August". She further testified that her best 
recollection was that Gladys worked in the Mitchell home in August 
*of this year, 1939", and that st that time the witness lived 
upstairs. On cross-examination she was asked if she knew how Miss 
#ittenmeyer came to come back in August, 1939, Ghe anewered, “well, 
ell I know is thnt he went after her and brought her there"; that 
she saw him bring her there; that he brought her there first on a 
Sunday and thet she spent the day there, Ghe was then asked if she 
would be surprised to know that the warrant was sworn out on July 15, 
1939. She repiied that she did not know anything about thet. She 
was then asked, “Hut you are pesitive she come beok there and worked 
one month in August?" and she replied, "I say she came back this 
summer and I thought it was August". ‘She salvo reasserted that 

Mr. Witechell brought her beck. She further testified thst Gladys 
had ea suit case when she cume back, Isnbel Gmeedin, oslled by the 
People, testified that she lived close to the Mitehell home and that 
she did not see her (prosecutrix) come to or go from the Mitohell 
home with men, irs, Thomas Wallace testified that she lived in 
Freeport, Illinois, and was a sister of Gladys, and th=t she was 
taking care of Gladys's baby, The defense then recalled Gladys to 
the stand for further cross-examination. She was asked questions of 
an impeaching nature in an endeavor to show that on the preliminary 
hearing before the Justice of the Peace she had testified thet she 
went out with a boy named Lou. On the trial she steted thet she did 
so, but thet Lou's sister was always present, She further testified 
that after the baby was born and while the baby was in the Gradle at 
Evanston, she came out and asked Miteheil for suppert for the chéld, 
She was then asked, “Is that the last time that you were out there?" 








oie mode mid yns te ned Oe Sablh voy gud" ,beles aed? cow one 
rommue eidd nal” .berangna ode das *t1ie, ta wtLtedogty ga poxzon 
ole Sib ange” boxes ned taupe edt .*yab YROVE wed went dtd T 
shorewmis ewendse act TCCEL ad yuabam yremue etd? tz04 of se0p 
tuad Tht See bessteos raituut sii ."teugwd at wow tf svetied I" 
taupuh mt amon LLedogkx add mi bedton sybeLO thd? gow mottopLioner. 
havil sventin adt emis fod? fo todd ban ."BECL gravy eidt to" 
eas wod womd sale 2 berles eax ede aoltentnexe-paor AQ ,ettetequ 
cilen" .bemwane mii yBEEL gteugud af oad emo oF oman xeyenmetesy 
fast {*erx9d? xed diguotd hae ted reste sue on ted? ef woad I Lie 
ao SerAt org? sed eiyuord a dade joueds xed yakrd mid wae ode 
su th Seles mont nor alt .eneds Yeh edt taeqe ode sade bas “ete, 
wi Yuh so tuo axove wer tnorten od? gadt woad oF beekrytwe Ae q 
of8 stadt Suede yaidtye wend ton bib Gide Sarit batiq: 






peony | 


bedtor bar eed? dosd ames oe svitheeq ote uoY ya" betes ede 
ded betrecesex o2ks ode o"fauqud aon $k ddquodd 1 has tommae 
W⸗o todd boltttast redtwt oft teed v9d ah x Lhedegty yeM 
| edt Vs LoLtse .athoonG Ledaet Aeud omeo oe mode gece tive s bad 
tadd bas mod LLecotsi ad? o# seole boavaa one told SoLtstee? ,eigeet 
_ £kedotim od? mott og te of smon (xitdyoeneTa) Fed gee ten bib ede 
al Devhl ado tadt bolt ttaed woakiny eomodT gett scem dttw ened — 
une ode todd bas yeybalo to retake * wer bas sstomsitl gtxoqeety 
ot wybel belisos: aedt eeasted sat Weed etaybell to etse gables 
to anedteeup bedes sew edo .noddodinwxereweto vedeaat poy, braze, eae 
Yisdinsiorg edt ag ¢sd¢ vods of KovRohne ae ni out on yaideregns we 
ade tedt besrtéteod bed ede. spee% eat to eotteut edt eroted yalzaed — 
bib, ode. tadd.dotote ede Lattt edt ap aed devaa yod » Atty tug, taew 
_ bosttdeod roddzwt ede ..tmesety eyeute egw setete etal tedt tud soe 
fa, elbexd od? at ase Yded od? elidu dae ated gow yisd ost xorte Saat 4 
abLhso odd, tot troqgae Tod, ILedostay Dexon bar sup SPEER @ 
— foredt tuo oxo Moy ted? omst teed 26, MF LES PPE SOLS 













8 
and she answered, “lio, he came in to my girl friend's and ect me 
then, bag 2nd baggsge." 

The defendant, who is 40 years old, testified in his own 
behalf thet he was purchasing the property where they lived; thet 
he had been twice married; thet he ess diverced from his first wife 
when the two older boys were two or three years old; thet about 8 
years before the trial, he remarried; thet twins rere bern of the 
second marriage; that the tvins' “mother is a nervous sort of woman 
and the children got on her nerves and she just wexlks off and after 
she is gone a while, she settles down and comes beck, he has 
some back on severel occasions"; thst she (his rife) was in the home 
"one time when Miss “Aittenmeyer was there staying"; thet he is a 
railroad switchman for the Santa Fe and works different shifts; that 
he is on the extra board and works whenever hours are available; 
thet Ura. Surham worked there three weeks; that he had an advere- 
tisement in the paper for » housekeeper to take eare of the four 
children; that prosecutrix answered by letter; that he, defendant, 
in turn replied to her letter; that he drove to South Seloit and had 
an interview with proseoutrix on July 5, 1938; that after a conference 
he retained her; that she (Gladys) told him that she was mrried and 
that her husband was in the Navy; that the statement that her husband 
was in the Navy was repeated in the presence of others after they 
arrived at his home, He denied that he told any one that Gladys 
was his cousin, or that he heard any one say that she was his cousin, 
He further testified thet Gladys came there on June 5, 1928, and 
Ure. Ourham left on June 13, 1938; that in the presence of Mrs. 
Ourham and the boys he frequently reprimanded Gladys for her conduct 
with respect to the boys; thet Gladys would sit on Charles Junior's 
iap snd put her arms around him; that he osutioned her to atay away 
from the beys; that Gladys remained there from June 5, 19238, te 
September 18, 1938; that the cause of her leaving was misconduct 
with the boys; thet he saw familisrity between Charles Junior and 





0 
a 
‘en toy bas ethmettt ty i oF sheen elt ene ieee Bile Hike 
. -” Sepougid bae gad jabs 


t 
* 


| if avo eld wi betkivest £0 éveoy OF e2 odW daabaetah act = * 
test pbevil yard ovedw Ybrscote on? grtentotug enw od todd tLaded 
otty teuk? eff sot? Bootevth any a eens ybeEtxhad bolwd abed baa Oa 
RB tuece tout phle wteey Serdt co ow? Orew eyod Treble owt od? node 
ome to mted o2Sw eciet deat tberrenkot of 54ite Sa} erdead oxade 
aemow to doe evowren & at reettes* ‘amex bay dott” fegtlenim bacese 
tefts bas Yto etfaw taut ode hue soveed ‘ted He top morb iio odt bas 
end edt dead somes hav avod sbities “Sas lelide » enog ob oie 
ened od mt an» (tie eid) ede tert ;*enctandoo ‘fousven —— * 
2 et at todd ‘amare oxedt sow rowimusttit eal aoa. tak ono 
fas? padtide SaetsTILS extow Hrs oF odme? od? xe? mando: prt Me 
qeldeltovs etn stucd eévodert etvow hai biadd dteaw Gad lke al’ td 
revise aa bei Od doit jeoon SeNdd rere Beldow malieutl Jax sade 
Iuet end to sree oad of regeusesvod # tot toynq wilt a2 Yaemselt 
| qtaahented ont gat pretrial yo tewewene xivévooon Tadd mye | 





| ap betrres-ews Gite tnt het bie Caybate) oie ⸗au⸗ ——— 
— och 


none sxe enw Biot ait tad bested on yetod Bld bn” bevirrs 
| sutevoo eta enw ede edd Ye Oho Gan twos td thad'te yalswse etd cow 
ho hae (Bet (eeu to Skene Gabe eRbALE BEd betvideed tediaun eat on 
«een Ke ebdbe tt edd HE build FORE YEr lel a6 Geel oe 
foubmoo ted tot eybeld bebdemtuget ylsreuport eid old Bas Sa 
ettotnut wetxedd uo #88 Bivow dyiald aadd yeyd' added dooques dthn 
Youd Yates of Tad berottgnd ‘od ted? jutd baword ouea ted doq t bas at 
| @t {BUC .d avy wort ovens Rektanes Bybatl sods; POT nox - | 

+ Poubhaooe tie naw sees ‘sod * * aed * —— 









yedt TeITte wteite to somenetg ont mt hetaeqes ine yah oad al aoe” ; 


ro ) 





9 
Gladys 13 or 14 times, and on esch occasion he recrimanded her, The 


misgonduct consisted of her sitting on Charles's isp. He stated 
that he slso saw Gladys lie on the bed alongside of the younger bey, 
Wiliiam, and put her arm around him. He further testified thst he 
did not at any time have intercourse with the prosecutrix and thet 
he did not know that he wns charged with being the father of her 
ohild until June, 1939; thst in June, 1939, he wag asleep and that 
ghe walked in and woke him up and asked him to go "dewntown and 
sign adoption papers for her baby. That is the first time the baby 
waa mentioned," thet he told her he had nothing to do with the beby; 
that “she curried on like she did on the witness stand and I went 
back to sleep and she ieft"; that he did not go to her and bring 
her to his house in June, 1939, and did not bring her there in the 
year 1939; that he visited her at the hospital four times and paid 
her money on @ach ogengion on account of her salary; that when he 
visited her at the hospital she did not accuse him of being the 
father of her chtld. He denied thet he at any time attempted to 
climb into bed with the prosecutrix, He further testified that the 
boys siept in the basement “a lot of the summer, 1939." He was 
asked, "How sbout 19367" and he answered, "Here is « receipt from 
the cement man who finished the vealis in the bssement, dated October 
19, 1938." He aleo testified thet he saw Gladys hugging and kissing 
Charles Junior, and that he saw the same conduct by Gladys as to 

the younger boy Yiliiam; that she frequently ent into Chiesge in 
the evening and did not return until 2 or 3 e'slock in the morning; 
thst in the morning at breakfast in the presence of the boys, she 
narrated her experiences of the night before; that he reprimanded 
her for so doing and told her to desist; that he first knew that 

he wae accused of being the father of the child ebout the middle of 
dune, 1939; thet while she worked for him, she asked for advances of 
Gash in order te go into town, which he gave to her; that he agreed 
to pay her $7.00 o week, On oress-exanination/was asked whether, 








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betete OM seek steefted? ao yatttie red to Retatende toutncoula 
stor Togewoy e4¢ To Shiagnele bed Me mo Ski YbALO wee Oale od tant 
ed ted? Sedtisteo? rediuct 8 said Bewote wen tod tug bas (meds lae 
ted? Sta xivtyeeseny Gedy dtie setéodT sted oval ems? Wie te tom bsB 
caf to Tedtet Of? gated Aviv hoytedo saw of tet wont tom Bib od 
sods toe qoolew een od ,C2OL ,onwl wl tedd yOSOL ,enwl Sttaw Ditde 
bas ewednxeb” op of mid Sévee bas qu mit ofow bas al “bes tho cede 
qded off ott teT£? ads ef dat? syed ted cob eteqed molsqohd ‘nye 
pyed ot Atle of of gatdfon Bad Of ved Slot dH 2449 ";Bedettaen Gee 
tose T hoe Boete setetin ett mo BLS Ode O82 nO DOLtTHO Se" daa 
gattd bas wd of dy ton BED od ded {*OTSL dae hae Gale’ ot toad 
“eae od evedtd tad yaied tom Ey bite .886L ysavt af osbed Grd oF 40d 
bidq hee comtt tusdt Lorqsow one th ted bedkeky od tide {eCer-aney 
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eit gited to wit teveoe tom Dib ome Sshqaor ont 9% wed Deakedy 
. ef Bedeworta omit yas te ed rade bedned Ol 4bLbdo xed to-redtay 
odd ten? Destiteet vedstet oN cetetvosaote ene deb bed otas darts 
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meek tekeeet # ef eTsH* ~herewens Of bas "TS8OL toads WOH" boxed 
| wedeteo Daten yraenseed odd mt eLinw WAY bedotAt? od \asm taundo lade | 
guisadd bas yotaged sybelO wee od feds baktitast oaks eH “ened ao s 
a ot es eyhald yi Poubaed smac Odd wee Of todd bie ,todnwe Hotta 
th onedteO Ofnt tree ULeneupedt ode teas jaekl Lew qed eogauey ont 
jantetoe ead at #eoloto 2 to & Litow wtytet ton Bib Sue gatdeve’ ond 
ade .eyod edt to somseotq odd ah teetdnord to guidton vida emt ; 
enema od fadd poréted tdgia edt Yo soonetiegxe tod dotettan 
dole wort teriY od teat {vetasb oo 20d Blot bas yBbod oa tor ted 
Yo eLhbim edt ted® bide edd to redeat ade gated to boruer⸗ wer od 
te estdevbe tot betes ode mtd tot bedror wee oLtde Sot {OBOE 2 . a 
bootyn desde: red’ ot evn °ed dob aitwot oval hd robo a ate 
stodtedn boxes ee \aodtaabasoneeor® a9 9900/8 G04 


— — 










io 

when he hired 2 housekeeper, he slesys asked for = picture. He 
anewered that he never requested « picture from any girl. He 

denied that he requested her to send him ® picture ef herself; that 
on the oceasions he visited her in the hospital he gave her some 
money; th=t he had net given her any goney from the time she left 
his home on September 18, 1938, until he visited her in the hospitel 
in the spring of 1939; thst shen she left his hom he gave her 
#10.25; that she left her sister's address as her wailing address; 
that he did not msii her any money; that he did not have any money 
to spare. On further cross~examination ss to #hether he had asked 
her to send him = picture he answered, "I don't reesll asking for 
her ploture”’. He wos asked, *Yould you say you did not ask for her 
picture?" He said, “Ho, sir". He finally st»ted that he was pretty 
sure he did not ask for her picture. He siso denied that he beat 
her. He stated that after Gladys left his home in September, 1938, 
she came back in Oeteber, 1938, and asked for her wages; that he 
told her he did not heve mich to spare, and thst he then gave her 
#2.00; that the last time he saw Gladys at the hospital was March 23, 
1939, and that he saw her in the reception room; th-t he did not 
notice enything unusual about her appearance. He further testified 
thet after the time in June when she came to his home and talked 
about the adoption papers, she came back again the latter part of 
June, 1939. He finally answered thet Gladys comme back about the 24th 
or 25th of June, 1939, and “steyed until the 15th of July®. He 
further stated that when she returned in 1939 she stayed about half 


a month. 
Rens Durham testified thet she wes employed by the defendant 


as & housekeeper; thet she had given notice tht because of the 
iilness of her sister she had to leave; that Gladys errived at the 
home on June 5, 1938; that she, the witness, left the Mitchell home 
on June 13th; thet Gladys told her that she was «a cousin of Mr. 
Witchell; that the morning after the arrival of Gladys she saw Gladys 
put her armas sround Charles Junior, and that she also sar her sit on 





7 . Wy 
— — 


* 


OH .hruteig 2 tet Holes ayende ed sTeqecdoaved 4 bered od aedy 

eH .itiy yao mott exwteiq » heteenpes veven od godt betewene 

ted? jtleavad to eTetelg o mid baoe of aoaiu does aupoa ad tedt bained 
* amok Ted eveg of detigaod ods ab rod hatiety ed anolesoog sit go 
_Ttei side snd) sit mort Yonem yas Ted mevty tom had od ted? syenes 
Istiqnox edd al ted bediety od iktny ,850L ,8i teémetqe’® ao emod gid 
Ted sveo of esod eld rei ils Heths cede g8GEL te ‘galiga edt at 
jenewbbe galilem tai es seotbhe a'ieteie nod sted (ode sadt 435,08 
Your yoo eved tom Sib od stadt tenon we ved item son DAb ont tastt 


_ betse bet ac reddede of es solieninaxe~-peeto redtzt #0 .9tege of 


tot golive ifeoox taob i* ,betomane od sxutotg 4 aid base ot xas 


Tea To? dae ton bib vox Yon wey Divot" ,bedes sew oH s*exuteig xed 


YWierg vow od tedt betpte Yligalt on , rx te soar adloe “oxutotg 
teed od dad? beineb opie oH ,stwtolg. tod tot aoe fou, der of pe 
e8ESL .r90modges ai amod pid ted wybsio | sests, #1 
od todd jeegee ted to? bedas bas bees stedoged at ao 
| ted eveg apd? og. tagt Ome .o79ge ef fous gyed ton bib. od ned bias 
] 88 Soret emw Sngiqued ont te wydss0 mae od Omkt tend ade ands. :00,8% 
A tos bib od ded yaoot sodiqenor edt as tod wae od tat bas CEES 
boitivees red¢ivt oH -seasresage tod swode Loumuny yaldeyes sodsog 
deides bar emed etd of ouso erin aedw onyl of omit edt sovta tady 
| te gieq retieL ef Ainge Xosd uso ofp gazeged pobtgeba, edt. suads 
a aang edt twods Aoed omae aybali todd betewams yiianit of »SECL ,onuy 
, oH ."eivb to dees od? Litay beynte’ pas SCL aul to ates x9 
iad tueds beyaty ofa, CEL at heggutes, one. sate seg? botate. FAetTy 


| tnabudted ont yo beyoLems wow oie shy HOLEEKOS siti not'® ANP? 
| Sjae to severed test Cotton Mevby bed one feat YroqodMeaion see 











af? te bovirrs eybelo seit yewael ot bed bite covede' Hod Y Beoatth 4 
enol Lomottk eat Tel jbosnittw ote Jone’ teat (LOL ,o SAL ae eno . 
.th Yo MEevod & ehw ene toile ro blog eyDELD tent! {CE oauit te 


eybeld wen ety eybetd to Levirts Wier scorn ttn oe’ ib — * 
Ho tte ceil wee oe le ene tone baw rokuien. eoLtRHO bnuot! uit 








ii 
Charles Junior's iap; that she asw like cenduct between Gladys and 


William Mitehell; that on the night of dune 10, 1938, Gladys left 
home at about 9 P.M. and did not return until 1 or 2 o'cieck in 
the morning. Ghe also testified thet Gisdys said she wae married 
to 2 sailer. She further testified th=t she, the witness, was paid 
$6.00 = week and thet she was paid each week. Charles i. Mitchell, 
Jr. testified that he wes » senior in high sehoeli; thet he saw 
Gladys the morning efter her arrival et their home and thet on that 
morning she sat on his lap, and that she kissed him geod-bye as he 
wag going te school; that like occurrences took place about 5° times, 
and that she conducted herself in like manner as to William; thot 
she frecuently went to Chicago after supper in the evening and 
aid not come home until after midnight; thet she kept company with 
a boy named Lou; that ot the breakfast table she frecuently re- 
eounted her experiences of the previous evening, and thet his father 
warned her thet they were not interested in her experiences and to 
desist. William Mitchell testified in a similsr vein to his brother, 
Gladys testified on rebuttal thet her weight at the time she worked 
for the defendent was 140 pounds and that at the time he saw her at 
the hospital her weight w=s 185 pounds; thst when he saw her at the 
hospital it was in the day time and that the room wes well lighted, 
The defendant, by his counsel, read inte the record excerpts from 
s transcript of the record at the preliminary hearing. These 
excerpts were introduced for the purpose of impeaching the prosecutrix. 
Defendant insists that the testimony of Gladys is not 
worthy of credence, He says her testimony is inconsistent as to 
the picture, She testified that she sent him a picture in response 
to his request. He testified thst he did not request the picture, 
However, on Cross~examination, as toe thepicture, he was evasive, 
He seid he would not say that he did not ask for the picture and 
finally thet “he was pretty sure" that he did not osk for the pieture, 
Defendant challenges Gladys's testimony that she had intercovrse 





hae eybelO aeowted tewtwoe eff wae Sad todd yaa erotik estes 
#tel eybato ,BFEL ,OL onwt to tdpda edt mo -tedt yLfedor tu weeneay 
#f Zoolots & no f Eitaw tutes ton OLB Aan WT © Suede 9a aed 
helytes err offs bree eybako toa? beftateat oale ode” Jgitnrom eae 
Sine eow ,seonttio ot ,ode teds betthtead tedéat O40 .toftca Wer 
“{Sfedorhe 62 eefted® .ltew dowd Bieg ebw one SeHt Bad s66n WOOME 
wee of ted? ;loodon dyid al tolmee & ean Od teat Bektheees’ ab 
tee? no tert? har omen thedt te Leviete ted teste galittom eas aynetd 
od es eyd~hoou min heesid ede tadd Bas cel ett a6 dee Ste Wt Lates: 
 gaoutt 08 funds seely aeot escest modo SAkt that jLodiioe ot githog eat 
“gold jmek LLY of ee commen SHEE mi tatexed boxoubnbe ole" tail bam 
: bas qaimeve edt of Teqqwe tette egheld® of taoe YLeneipoet Ste 
dtie yosomoo toot ode teed ptdglablm ttt £t9nu omen ‘eeoo Fee DED is 
“2% iierorpost ois oldat tektdeotst odd de sait¥ (08h Semen fod 
rodte? eho tedt baw youtuove evetvesy edt Yo evonetregxs ted bemiien 
of bes eeoneitsere ced af bedesvetal ton ‘erew yedd vere a6 Bente, 
tadtord nid 6¢ afov velinge @ al bestadeed ffedod hd ankséty Muvedeeb 
baxter ode omit ont te ¢dgtew ced dade Ledtudet te BePEAgess eyato 
fe ted woe ed omit of to todd ban ebadeq OL eee Uasbteeeb edt SH 
adt de of wae on oeiw feds abnor COL now Pigiow ted Laetqeod/ods 
shetvigh! ILev sew soot Gt fede Bet Olt Yoh od mk dee OR Latiqeed 
mott etotooxe brevet ode ofmt best jeenede eat Ye! (ttehasrepeeaT | 
 gaedT sgetteed yremintlen ott t» Broset ete to tqltoemattle 
exitgupesotq of gntdoneqnd To encrtus edt rot beouhorint exon St@z90R9: 
ton ef eybsil to Yromttasd of? seat efetend tiapnered®  (rret . 
ef nn tneteinnooal at ynemttast xed ayer OH .«toaabero YeYMetor 
vetoqes: mi Gtuwtolg # ahd tase Ode test battivess ode avers oe? a 
“:8tutste edt teaypen tom bib of teat bodhsdess, OH —* a 
— m0 ,xevoroH —— 
Dan etetetq st 19% dec ton — ———— 




















12 

with him commencing about June 10, 1935, and continuing until the 
enrly part of September, 1938. Uefendant attacks her testiseny con- 
cerning her friendship with Lou ‘eliters. Jefemiant points out that 
ehe gave the name of « fictitious person as the father of her child 
when the child was placed in the Cradle, and that at the time the 
baby was born she did not name the father. He maintains that Urs, 
Bdema, a vitneas for the People, testified that she did not know 
Gladys during the year 1938, contrary to the testimony of Gladys 
that she first met her in the spring of 1939. He also calls «ttention 
toe what he terms are contradictions in the testimony of Gladys thet 
the boys were ekeeping in the basement during the summer of 13838 
and to verious other alleged contradictions, The record dees not 
show thst Gladys atated that she taiked to Mrs. Edema in 1938, She 
did testify that at the time she became pregnant she talked to the 
woman who lived upstairs. irs. idema did not live upstairs at thst 
time. She did not move into the Mitchell house until January, 1939, 
One of the contentions of defendant is that the proseoutrix lied #hen 
she said that one of the Mitehell boys slept in the basement. irs. 
Kdema testified that the two older boys slept in the besement while 
she was living in the house. She further testified thet during her 
tenancy, there were no sleeping quarters in the basement, but that 
two rooms sere constructed there while she was living there. It 
will be noted that in the early part of June, 1938, the Mitchell 
flat was occupied by the twins, the two older witehell boys, Mrs. 
Durham and her daughter, the defendant and the prosecutrix. The 
apartment consisted of a living room, a dining room, a bed room, a 
kitchen and a sun porch. Gladys did testify thet she told defendant 
that she «ns married to a sailor and that such statement wae not 

the truth. On direct examination she testified that defendant did 
not call on her in the hospital. On crose-examination, hovever, 

she admitted thet he did enll on her, However, there sre important 
circumstances that tend to corroborate her testimony, She testified 
that after she left the Mitohell home in September, 1936, on the 


edt Litev guleniides bun ,6861 .O4 envl tuods galomemos mld sitte 
-toe giosides? red eieette teofmeted .8teL ,tedmptge® Ro é1req Yiene 
ted? tue etaiog tnehrstol .anetie® wel dtiw qidebnetith wed gainzeo 
bildo ned lo t#ddel od? an sonteq avodeitod? # te amen adh oveg ede 
ad? omit ad? t¢ Sadt bas ,edbacd odd af beordqg aew biido ed? aedy 
8 gad? eniatdaiem 2 »teditel ef? omen toa bLb ofe ated. anw ylad 
woad Som bib asin fads Sedstiserst? qodigoe4 edt tok epontin a .omphe 

ie aybelo te _tomddest alt of YLawemoo ,85CL cevy Ont gaituh eybaLp 
_ nottastis aiino cele of .O80L te gudvqn ode at xed Pom tod, ode Padit 
sn? Gybede to YMeuLeed ould as amoktotbstin0o ore smT0d Od: tage. o8 
SEGi To Tomeve Ont galreh Faomened ed? af gadgedéa over eyod wd? 

tea g8eh bienet ast .sacisotbarinen hegelle redto euedtey ot bas 
ede .G8GL at ome! eth of hetiad ede tend hotete aybadd, todd-wors 
edt ef Solisd ede teecgetg cnsoed Ose omit odd te todd Ytbsood Dib 
ted? te etiedaqu evil ton bib emebi .etk ,etiataqu Devil ede gasou 
e8S0L ,yreunel Lisay cened Lisdngiw en? etad ovom. son b2b O08  somhs 
«fede DOLL etd yOaROTS BH9 todd od sambastod Io snolsuetaos. odt. to! ead 
.eth .taemenpd oft at tyete: eyed Lhedotlé edt Yo ene tndt-bliee ose 
olide tasmeand et af tqole eyod tebde owt edt tedt dettitped smebe 
Ted gnitah Sed? bestateot sedtrut of .oawed odd ah gahvts enw ode 
eit tud ytnomensd edt ad exodtawp gaiqeede om Onme, ened? ,yonanet 





— — — — — Nh ee — 


ene 


fiedogit odd ,88Ci cout to sxeqg ylaoo ond aided? bedem, od dite 
edt .xit#uoeeotg edt doe teahaoled odd 4zetdgash tod bas madwd 
tngbasteb bso# ode teat YRitead Bab eybald. etloseg awe ee 


fon sev seonetate doue todt bag rolian at DOkrt ge ame le: a⸗⸗ 
bLd daghaeted tadt bolkitess ede ————— — ——— 


belt gees qas peatiovion — svoaeta 


th sated? gatvil sow sda aide ovedt batoangenee ouen.gnees Ont 


@ smoot hed © .woos geicdh « moot gatvil » te hetadeneo taentzage 









13 

urging of her sister she returned for » dey or tro about 2 month 
leter, at which time the then wife of the defendant »-8 in the home. 
Defendant alse testified that his wife had returned and ess at home 
st the time Gladys cnme there in the fell of 1928. ‘hen the 
defendant visited her at the hespitsl in iteareh, 4929, which was 
about 2ix weeks before she delivered the baby, he stated that he 
did not know that she wes pregnant. This statement seriously reflects 
on his credibility. He was the father of four children. It would 
be rather remarkable if he failed to note the changed physical 
appearance of Gladys st » time she was in an advanced state of 
pregnancy, He oslled on her at the hospitel and must have known 
why she was there. He testified that he did not know that he was 
charged with being the father of the chiid until abeut the middle 
of June, 1939, st which time Gladys barged into his home while he 
was sleeping and ssked him to sign sdoption papers for the baby. 
Horever, he testified thet Gladys returned to his home sround the 
24th or 25th of June, 1939, and remeined there until July 15, 1939. 
His testimony in this respect corroberstes the testimony of urs, 
Edema, who lived on the second floor of the Mitehell house from 
January to teptember, 1939. ‘She stated that defendant brought 
Gladys to his home in 1939. he alse testified that when Gladys 
came baok there in 1939, she worked one month. We have slao con- 
sidered the testimony of the various vitnesses concerning the 
actions of Gladys with respect to Charles Junior and William Mitchell. 
It is remarkable that the defendant, after reprimanding Gledys tine 
and tim® again, nevertheless permitted her to remsin there until 
the latter part of September, 1938, and again for two weeks in the 
summer of 1939, after the baby was born. The two boys testified 
that they were continually objecting to her attentions. The fact 
that she remained there for 3-1/2 months speaks strongly in behalf 


of the truth of her testimony. It will also be observed that 
although the defendant paid Mrs, Durham every week, according to 


. = J ote vs 
@ . : * 


Fa 
ftao o tueds ow? to Yeh «¢ tet Sorryden ede tetete sed 2e galgey 
oOword Ode ai oow taekesteb end Yo ethe and? ot smht dol to. ted af 
ened te aw Ser benvwtet bad Stiy eid todd bolridedt gale tnahasved 
ett ced® .G86L to [fet ene mt ered? omen eyiald eald ode Oe 
ame olde .@8@ ,dorel at Ledlqedd one te rea bettetv vadtindtew 
i ed tant betete od .ydted sit betevileb ore eroted exsow xiv suede 
| etoorter viewoiltes temetete eid? .toargery aaw ede tadd wods ten BEB 
| hivor fl .eerbiide tust to teiitet ed? aow OH J yetladipero éid ‘ne 
jh wes Leateysy Segaode off ston of BoLiet of TE eldetrendt 16ddat od 
; te stete heenevie me wi sew Ode omtd o #8 BybalO Yo Sonatatqqé 
wort eved team bac Letiqned ott te ted do belite eh Syonanyetd 
sow of todt word tom béb ed tad? Belt hiaed ON Lereds daw ede Gite 
 ekbhin wit swethe Livew biide odt Yo tedés? ode Gated detw Beytade 
et Lice omed ain oda Begtsd eybsio owls dotde t4 {Seer oat to 
evel ad? Tod steve: moktqobs apie of mid bodex ba yatqoele enw 
. oft Dawews owed eis of bowtyred uYDeLO fedd BOLtLteed of provewdH 
 (ROOE (BE Uwt Lttaw wredt dantowot bad (der (eddy Yo dees nd 988 
| sere to Wlealfest sot eotetaderses fesqedy eidt WE ytoukdesd aft 
mot? Savor Lfedetix odd te tookt Saevee edt ao Dovel ode diese 
tiguerd mmebreteh frit Hetete od “GCL Jredwetqe? ‘ot Yrdultt 
aYbALO aoh / tedt Sofivesd ele ede .Over Wi “Sion Ht os WN 
~to0 oaie evad oF .dinew ome Sesirow de OSL ni ered teed ‘ede 
| | ot patareonoo eeeeentiv aolxev edt Yo Yaouktsos Sd Berend 
| {Lisdedi mebiliw ae Sotavt ee LedMODs tonquod Hit be eybeld Yo ‘iodide 
oma bake yakbmoaianges tette Saataeteb edt fede eldetzesioe oF VE 
idtan ovedt alamer ot tad bettisrey exeloddtsven yinge “alt baw | 
edd nf edoow ont tot ateye bas OUeL yredestyen 26 Freq Teetel eds 
tiated at yignorde exeoqe exitnom &\E-8 tod erent bontnnot on ⸗ 2* J d 
“gett bowebeds oof vate Liaw V1’ vient⸗ro⸗ ‘ted * — 








14 
his own testimony, he did not pay Gladys except in dribs and drabs, 


She left the Mitehell home in “eptember, 1938, 2nd he hed her 
address, yet he did not give her any further payments on her salary 
until she «2s in the hospitel in the spring of 1939, and although 
he did not see fit to mail her any part of the balance he owed her, 
he visited her in the hospitel while she was in an advanced state 
ef pregnancy. After the baby eas born she eslled on him. She 
then charged him with being the father of her child. She departed, 
but returned toward the end of June and rewained in his home about 
two weeks. At the time he allored Gladys to remain in his heme for 
two weeks, he knew, according to his own testimony, thet she was 
accusing him of being the father of her baby. The fact that he 
received her inte his home after he knew she was sceusing him of 
being the father of her baby lends strong supsort to her testimony. 
Agcording to his testimony she left hia home on July 15, 1939. it 
is worthy of mention th t this ie the day when she went before the 
Magistrete and svore to the complaint on which the warrant for his 
afrest was issuede 

This case was tried before an able and experienced judge, 
who hed an opportunity to see and hear thé witnesses and to observe 
their demeanor. %¢€ are satisfied that the testimony of the prosecu- 
trix has been corroborated by credible testimony and by significant 
cireoumstances, fhe trisl judge believed the testimony of the 
defendant. we are of theopinion tht the record shows that the 
People proved by a preponderance of the evidence thet defendant is 
the father of Gladys “ittenmeyer's baby, 

For the resgons stated, the judgment of the Criminal 


Court of Sook County is affirmed, 
JUDGHERT AFFIRMED, 


HESEL, P.J. CONCURS, and 
DENIS K, SULLIVAN, 5 DISSENTS, 





weGeed tae adie at tyeoxe aybalt ya tot BEB bd’ ee eres 
OS eis Bet ont hie (O00 Hedtinsie! at theif ‘Leeueerit Whe Rok Vie 
ythice tad no atewwynq tedeeu? ye Yer evty tom bib od vey (awerbpe 
figsontie bore ,C2T Yo Yatyqe off a¥ Lettqeoif Cae HI wow’ eife Tktay 
.ted Bowe en coneles si Yo tene yaw Yod Then of Slt eee tou BD Oe 
atete béonevhn ae mt ewe ode ollie Lediceod wit Ht Yod bedtasy ba 
- ‘ed@ .abd mo bellon ode weod’ dew Yad ‘ede dorm  yolisageta Yo 
| heteegeb on? bike sau Yo wedded odd gated setv' aid begrade nedé 
 $wode smod atd ai beatsner bas saul Yo bas odd — Beweudev tod , 
tot emer etd xi akawor ot wyba so powotia od ont# bud 9a” sedoow ord 
| gee de Pa8d ,Qromkteet awe eld of ibtese wood ea seloee bud! | 
“it dod Fook sat yded red te eedeet sae gored te mid galewobe 
te aid yatevede ecw sie wend of t8dte amod ald Mr Wee - 
| _uplbhtiteed xo oF Yreddie Garde baer wie 10r Yo fect oar Vite | 
q #1 “.@BOL (ar Yiwt me owed ait Her ote Wionttest eld #30 i 
odd baited ‘bails’ nae’ inate Wak ti a vide beh to! yareow OE | 
Hit tot taoview ede debite ab — lle viel tas in 
- bellow iw! Heoata” 
— chee 
| owxeeds of bre noeeonttw bith the hab noe’ OF pete’ a’ hie 
wo onbida’ base’ Geouiteead biiv” beity’ bolts see Vas" bw” eels GP 
asl tagte WW hae wostied Steebead ye Hoeweesortee Adee bad xB 
cif to tontvees” Sat Boveltee ‘epbut ivtxe biY —— — 
‘hdd Fal ewode beooet oat Pode aoiaico ed Yo exe 2 oF —— 4 
SY tisbaot os! Hadi beabbive db Yo deatnenaod ee oe 
Le ah? chee ars sled ate See Oe i i 


feats odd to ten 


BRR NR eee ook erie SE 


rt ik rid} 
Lea SEE VA Ge eee eS sac) te sit 


eK eRe ot ao Lite ws 5 Goud a wie ot 
— Eee” ow “Ese — yaa Beaty oie 





4 

































41304 
FOREST PRES sERVE RUAL ES 







AFFrRAL FROM 
# CIRCUIT COURT 


COOK COUNTY, 
0 “1 4 al A, 2 Hh 


WR. JUSTICE BURKE DELIVERED THE OPINION OF THE GovRT. 


A. PARKIN MILLER, J , ALA 
i Appellant. 





On October 6, 1938, plaintiff filed =» complaint in chencery 
in the Gircuit Court of Cook County and therein alleged thet it eas 
s¢iced and possessed of certain real estate, Commonly known and 
deseribed as the southeast corner of Avenue J and fast 1iath Street, 
Chisago; thet on April 1, 1929, defendant and plaintiff signed and 
delivered a written sesled instrument whereby plaintiff promised 
to convey seid land by warranty deed to the defendant on the paysent 
by the intter of the sum of 915,385.74 in installments; thet the 
agreement provides that the tise ef payment shall be of the essence 
thereof; that the defendant fniled to make payments as stipulated 
in the contract; that on September 15, 1936, plaintiff gave notice 
of intention to forfeit the contract; that on October 13, 1936, plain- 
tiff made a declaration of forfeiture; that the contreet is se cloud 
upon plaintiff's title, and prayed that the contract be declared 
null and void and that the payments made thereunder be declared 
forfeited to plaintiff; that the contract be declared a cloud upon 
the title and thet the cloud be removed by a decree of the court, 
Defendant filed an answer and » counterclaim, This counterclaim and 
amended counterelaim were stricken, Defendant then filed 2 second 
anended counterclaim. In this opinion wé will spenk of the Forest 
Preserve Seal istate Corporation as plaintiff, and A. Parkin Miller, 
counterclaiment, as defendant. It appears thet on January 9, 1937, 
defendant served a notice on the plaintiff that “because of your 
said wrongful nets 1 shall regard said contract as rescinded and no 
longer binding upon either of the parties thereto. I further notify 
you that the undersigned has in response of your demand for possession 





BOM T Th 2 fo 4 


M PINCH *8 





Aru ad Nout ae ce ’ 
J Ad a. 
“Ex A.T YO : $ tents aie be - 


-PHUOO GRT YO NOLMI8O ENT GRARVIASO FANE ZOLTEUL, i wal 
yxeoned® af tataiques « belt Writninlq ,BteL Bo tedezod m0 hy ¥% 
new #2 todd Seyslis atetodt bas ysawo Aood to stuod siwoxts eds at 
bes awed ylaoemeo ,stetae Leet aketreo to hecasency bas betes 
stoowss A#CIL tess bar b eumeva to t9MTOO tasedtuos ent es es bedizoseb 
has beagie ttltnielg bas taabaetob 060L 4f Lingh a0 Saat joysonso 
fesimety tiitninig voox ocin saeayttant belace settite a per. | 
taeryeq od? ne tcebasteh edt of deeb Wasrt69 YS bask bigs 8 —— 
ont tod? zatacat adat al AT6886,8L8 ko mum ott to teteet fd yd 
“gomees ont Yo ad Linde tammyag Yo mit ode tedt seblvety saonoerys 
betslugite ee stagsyeq plan at bole? saghaeteh oat Sanh, (reonpdt 
“patted even teitetelq ,@86L ,al. rodmotgoe se tadd jtomtsaop odd at 
~niniqg ,@88i ,8L redor00 so tad? ;towtsneo edt ttekrot of mottaetas Yo 
bso 9 ak foantmoo OMe Feds ,onutietter to woktatalosh # sham Wks 
hereLoob ed tatacsteds oben etaewyaq ent tad? bas boy ban, Liu ! 
noqs buelo o botalosb ad tosttaoe eff dod? (Xtigatelg of bedietzot — 
.?1y00 ed? to eoTaeh ¢ ys bevamex od Duoko sult tadt fan ofthe eat 
bao wintoretmvo® aidt .steloresaves & bas pewene a2 a 
baonse « belit asd? trsbreted - samdohte orew ata do⸗ 
teetel edt to desqe Lite o9 eanten wf 
tellin aided .A bas Mutateda es wok setogtad 
aTeeL ,f yawn ao test? emneqae at atreiap ap =e, : pa 












3 
of the premises, abandoned the same and has placed the some at your 


disposel., And the undersigned hereby surrenders ali claim to the 
possessicn of the seid premises,” Defendant in his counterclaim 
prays for a judgment for the aggregate of the psywents on the contract 
of $11,832.90. On October 6, 1939, the court entered a decree 
striking the second smended counterclaim and denying leave to file 
a third amended counterclaim. The decree alse found thst the 
material allegations of the compiaint sere not denied by the answer 
and directed that the contract betreen the parties be removed as «4 
@loud on the title, and that judgment be entered against defendant 
for costs. wJefendant prosecutes this appeal for the purpose of 
reviewing the decreé, 

The first point urged by the defendant is thst heving 
received all the payments when the oontrsot wea in srrears and 
having during the course of ten years' dealing between the parties 
never indicated that it would insist upen the strict terms ef said 
contract and having thereby lulled defendant into a sense of 
security, pisintiff sould not resort to the strict terms of the 
said contract without giving defendent notice, and sllewing « 
reasonable time within which defendant could protect himself from 
the forfeiture, The second point advanced is that after payment 
of $11,832.00 in inatallments paid over » period of six yesra on 
& Contract originally for $11,650 and inereased by the vendor 
making improvements to $15,385.75," = sixteen day notice of intention 
to forfeit unless $4,440.69 principal and 91,394,16 interest vere 
paid, was so unreasonable as te be in law no notice at all". The 
final point presented by defendant is that the plaintiff having 
repudiated the contract and repossessed itself of the real estate, 
the defendant by serving notice wpon plaintiff of its election to 
rescind effected » rescission of said contract, and is entitled to 
recover the sums of money paid by defendant upon said contrect, 

As these points are related one to the other, we will consider 


them together, Under the contract of June 16, 1926, defendant agreed 


tr” >. ‘ 
q - 
‘1 | 
’ a] 


g 
twoyY te ten Ot heveiq and bone omen off bonohacda ——— ode to r 
edt gt mieio Lie evehasrtie Weated Semgiexebau ode bak | ee 
4 aieforetmres aid sh tasbastea * * atelaoty hios, oft Yo moheaenaog 
{ ‘goettaoe ed? mo atmomyaq 842 to Stagetyge ods tot treme bart & tot ayerq. 
— gerosb « horefas teyoo ont ,SECL .@ edefeO a0 .00.888, 28 to 
elit of sveei gaiyret bne aksforetmred bedmeme buones edd gaidirte 
adt tess haved oele setonh sd? .mdiaiotognvoo habaeme brid? « 
tewene edd yc belaeh tem erew taielomes eft to anoitagelio Lelretem | 
e es hevomes od eviteay sdt meevted toetémeo adt sede detoatih: bab - 
durhestet teninge bested od teomghet tett ban yeltts edt ao buolo 
to sangtya set tot Lesqoa ebdt setysseom tnebmeted § .ateos, sed 
guived ted? a2 taebasted edt yt beytw tated sett odd. cone oF 
bar exeetre ai aew tosténee edt gest atasmyeq edd Lin bevieosn « 
esdizeq ont seevted yalianb ‘exeey aed to eetuee edd gadrab yadved . 
bken to amxred feisde of? cogs tecend bivew dt tadt betseibal, reve: > 
Ye anes » otal tasbmetsh deisel yexedt gasved bas) soerhmeo, 
ont to egret toings ede e¢ treser tom bivod Midaielg aythauose , 
@ ptiwelie bee ,9odton sashbaeted gatvig duedity, dosténeo bles, » 
woTt tisemin soetex; bivoe sasneeiee doidw atdtiw, emt? eidemooses _ 
tramyeg 1ette todd wf bopanvhe Ingeq haosee SAT -OTUPRUDTOR Ons 
a eteoy xis to: boleeg: 6 £990 blue atromttatnak mk OO SEB SiR %O. > 3 
J _ tebaev sdt yd beeneroed baw 080,410 tet Yitanégivo ¢onntnee a | 
( moftantnd 20 codon ab MoamKts » MyaTe8824SL2 of etmomevonemh gakmm 
! s1ow seotetnd BLedCE Le has dnqlontre VPsOddgdh anolaw thertodiet 
es? o*lis te eefiten on wei nd sd od 06 aidencesotay ca: nen ybieq ) 
ghived tiitnielg edt todd ek saghaeted yw botmeceny tetoq Leakt 
,etetae, Isor edt to tivadts heepessoqet, has soetsnee oat betatbuqer a 
of moktoete uot to Yettmbniq mou sobtam yrivree yoidushactobedte: 
ot belsitns ef bas ,fontdn00 biee to moteatoses § detostte batoade 
_sGoettaoo bine aoow tasbasteb yo bing tenes te α BOVINA: 
| nobdlenoo Lis ew ,redte edt of ene beteloen exe, atato 7 
beergs tnsbastob ,88@L ,BL saul to foattaeo off tebav  y: 










3 

to pay for the resol estate the sum of 711,650.00. He was to pay 
$3,833.32 on the day of the signing of the contract and 2232.09 on 
March 16, 1927, and $233.00 on the 16th day of each and every month 
thereafter until the entire sum wes fully paid, plus interest. it 


was provided that: 


“In ease of the failure of the said party of the second 
part [Miller] to make any of the payments, or any part thereof, 
or perform any of the covenants hereof on his part hereby made 
and entered into, this contract shall at the option of the party 
ef the first part [plaintiff] be forfeited and determined, and 
the party of the second part [Miller] shall forfeit #11 payments 
made by him on this contract, and such payments shall be retained 
by the said party of the first part [pleintiff] in full saatis- 
faction and as liquidated damsged by it sustained, and in such 
event the party of the firat part shail have the right to re- 
enter and take possession of the cremises sforeznid. * * * 

That time of payment shall be of the essence of this contract,* 


It appesrs that on or before April 1, 1929, defendant had fallen in 
arrears in making the monthly installment payments and wes in 
default under the terms of the contract; that on or about April il, 
19239, the contrsct of June 16, 1926, was cancelled by mutual consent 
and a néw contract executed; that monthly payments under the new 
contract were reduced from 2223.00 a month to 2109.00 » month, to 
be paid in seventy successive monthly payments commencing on way 1, 
1939; that commencing in April, 1939, defendant paid regularly under 
the contract until June 6, 1931, and made no payments thereafter 
except one payment on 4pril 27, 1932, of 863.89, There were no other 
payaents made by defendant in 1932, 1933, 1934, 1935 er 1936, and he 
never tendered or offered to make apy peyments under the eentract 
after April 37, 1932. it further appears that on September 15, 13936, 
plaintiff served defendant with a notice of its intention to forfeit, 
the last paragraph of which reads; 
_ “You are further notified that the undersigned has at 
all times been ready, able and willing to perform its part of 
said contract, and that the undersigned is now and will be, up 


to and including October 1, 1936, ready, able and willing te 
perform the ve "s part of the contract,* 


It also appears thet on October 13, 1936, plaintiff served defendant 
with « declaration of forfeiture, end that when the notice of inten- 
tion to declare forfeiture under the contract was served upon 

defendant, he did not complain about the length of time given him to 





 Ys¢ of see SH .00.088, 159 to sam of% etetes Loot edt tot yaq of 
ao OOsEERE bas fostisor sdé te guinyte of? to yob ad9 ao S8ehE8,88 
: dixem yreve bee dons to Ysh ASL sit ao OOs08) due ,TEGL 04. dosed 
(aM: tawreted avdq bdeq VLut ese mus OLEH od? Lataw, xePReoueds 
3 sted? bebtvotg eg 
** ge Maas pe 0% to Nia unk te en ot te. —A rebate 
‘eres —2 to — 55* igs rat Meee —X bas , 
—— hep I 
stifea List af (Httsntale] seq [— 
— * (Pai oat ove iteke Pe’ tet Hy ott 36 yetag Oi tueve”” 
— E—— aid? te tat te oat te" te of ore tetas a oate pace” 
ai a@iist bed tunhasteb ,@8@L i LitcA ereted v6 AO telfd’ exbeqeh’ eT 
“pt cow bue etomyeq taonfiavent YLtawem edd gilsinw at eteotre 
el Lftqs tuods to mo tedt pteersien ed to emredy afd TObhay Hhieteb 
wae ad? hay ptreayer Yittron tent ietuvex® tonttnce wea © bas 
6? ,dtaow # OC.LONEt of dtaan «05,880 noxt beouber ovew tomrenee 
wi Wet no prfoneames etaomyer yiittrom ovinesoour yoteves ak bag od 
aehar ylveiuoe: bleo frebaoteb ,C8CL ,Liwy4 mi gelonsamod FeAT ORCL 
\; xetleoredd stwomyer on Shaw bre ,f66L ,0 onwt Liem tomxttoo ene 
| coats On Otew ored? CBLSOR YS ROCL ATS Aeted am sremyee’ bao tqeeRe 
od baw {SUCL ne GEOL .NOOE \SBEL ROL at tuohaered yo Sheu aseaeyne 
—— goettroe soft robmy etmtnqag Yah Silas OF Soretho-ed borebmex! coven 
See \2k rodawdqee mo edt ormcqge Lodduwt FI .SkOL GTS Langa, tette 
— or ane att to eeltem « dviw tacbnetsh Hevree tridateig 


“a PE EE EE tnbret Hold te dentyetaq tend out 
gs sen bemylersbay ed? dad? beatavon sedsust etm mY ior foo 
to etl meotteq of poliliw —— aids —— semit Lis 

ay .9d [fiw bre von _teertaco Ding ~ 


‘wom wl 
od gatiite hae elda 5 saat ot xe —— — 
—o sa 
— ———————— we 
soni ang nt en tae a tn D8 tnabas 









4 
protect hiaself. The complaint shows that he made no objections at 


the time the notice of intention te declare a forfeiture wes served 
on him, or 2t any other time prier te the actual declaration of the 
forfeiture. The complaint slso shows thet between the time the 
notice of the intention to declare » forfeiture «ns served upon him 
and the time the declaration ef forfeiture «a8 served upon him, no 
payments were made or tendered; that defendant neither offered nor 
tendered any payment under the contract from the time the notice of 
intention to declare = forfeiture was served upon him up te and 
ineluding the time ef his filing his second amended countercisin, or 
for that matter up to the present time. In Lang v. Hedenberg, 277 


Ill. 368, the court said: 


"If a contract calls for suceessive acts, first by one 
party and then by the other, there is no breach by one if the 
precedent act has not been performed by the other. * * * fven 
theagh there were force in the argument of counsel that defendsnts 
in error by their action had suspended or postponed temporarily 
the right to insist upon a forfeiture, the giving of the definite 
and specific notice of April 13, 1914, of defendants in error's 
intention to declare the forfeiture furnished the proper basis for 
thereafter forfeiting the contracts. M Ve 159 Ill. 
61; wat Ve 152 id. 364, Counsel for plaintiff in error 
further argue that the result of the decrees is that a court of 
equity ia lending its aid to enforce the forfeiture of the #1000 
earnest money. Undoubtedly, under the suthorities, equity will 
not declare or enforce a forfeiture where it is harsh or inequit- 
able to de so, Ve 264 Ill. 119, and cited cases, ) 
but 211 the authorities recognize that competent parties may make 
&% Contract as to penalties and forfeitures, and that courte of 
equity, aa well as courts of law, will recognize the rights of 
the parties as to such penalties or forfeitures. Here a court of 
equity is net enforcing a forfeiture. The decrees simply hold 
that the defendants in @rror rightly declared « forfeiture under 
the contreets." 


In the instant case, the power of the court in not being used to en- 
force sa forfeiture. Rather, the Chancelior declared, in effect, that 
the defendant could not recover the payments he had made because the 
plaintiff rightly declared » forfeiture, The position taken by 
defendant is that the plaintiff having repudiated the contract and 
repossessed itself of the real estate, defendant had a right to 
rescind the contract. ¢ are of the opinion that plaintiff had the 


right to forfeit the contraet. It follows that the defendant has no 


right to recover the payments made under the contract. 
For the ressons stated, the decree of the Sirevit Court 
of Gook County is affirmed, GECREE AFFIRMED. 


HEBEL, P.J. COHOURS and DENIS KE, SULLIVAN, J. DISSENTS. 


tn atoiteaido on ehem ef todd avode tateignoe ont stivenid toatorg 
Seyten saw SxueieTze? 9 eteosd of sotine mt to solten edt omks. ods 
#8? Io anliateioeh Laytoe edd ef toitg omit redto yan ge to gmtd. ao 
Oct emi? ont anewted ted? swede osts Jalalanoo pdt. .emvthetzer 
aid geqy bevztoe esw emtiotro®t « staioebh of foktastas. od? to seiton 
Of .Ghi tequ beysee sew etutisitet to mottareioed od: pate ont bas 
toe bevatte. redtien saabast ob tant, ihosebges * eben ne ngaouyen 
to dalton ond sui? 243 wor? tonxdneo ent. reba tasaveg wis “berobavs 
(bas of oy mht aequ bevzen eon, omusietsot » oxaloeb of aoltuatat 
to yatainsetaves bebasme haooee edd yakite ahd to omat od? gatbudens 
ers ——— +7 wad #8 onase saceerg, ods of qu x09t0m todd sot 
~ybtee ‘ttweo “odd 188 +H 

“We WT vert? ,odoe Ovdeesoomwe tot eifes Poottos a YT" 


pe ts on Sorat ai 
3 até ee bibearese ase hor son Cad baa” 


if — toss. —— ets" pre bee Bee — be 
| GRE . ae ve tli 23* 
i— se ah aa 
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“te Piet F ee seseperer £45 —— 
abet — Pelion tone 


“ae ‘eo? beas pated ‘ton et ‘tru00 ous te —8* ont spec fangeck oat ak 
dad? bootie at bor⸗ loen t0 Leona ode — —— — # eotot 
‘one esusoed aban bed od sénemyaq os revooeT tom — ae bar 

v Asie’ ae kt teoq eat out bettot B ↄoꝝe coob “Madgit rtdtatelg 


ban tomrtace add: bererbarot palved tr tegiata eae at t of tasbaeteb 
‘ot “tetas & bad taabaoiab werades. — at Yo Moett 'b 


ed? Bad Witatelg aac⸗ — odd te. 258.98 -stoantaes 263 batoagr 























on ned tanbasked odd add swodlok #1. .pteantneo odd, — 2 a 


stoat¢aco eft tebay sham af 

txso8 ¢hOelO Odt To Setseh od sista ane oe —— 
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87448610 .. AVIAdu a po has Ayo 











41254 
GUY V. LEHMAN, Plaintiff 4 









état poner) g APPEAL FROM 


SUPERION GouURT 






JAMES A. HANNAHSathgE AF y 
defendants (adapopionts), f 


fvveriecs. So 7 J. A. 2 4 4 


MR. JUSTICE BURKE DELIVERED THE ouloun OF THe — 


UOCK COUNTY. 


On Maroh 36, 1939, Guy VY. Lehman, Harry Kiinke, Joseph ¥. 
Murphy and Lewis A. Oryer filed » two count complaint in the ®uperior 
Court of Cook Jounty against James A. Hannah, Archie Welker, =. Ll. 
Ghristopher and Jewel Ten Oo., Inc. The first count averred that on 
December 15, 1938, Guy V. Lehman was driving his automobile in a 
northerly direction upon Ashland Avenue at or near “est 36th Street 
in Chicago, and thet the other plaintiffs rere occupants of the 
automobile; that all of them were in the exercise of ordinary care 
for their own safety and for the safety of the automobile; end that 
because of various acts of negligence on the part of defendants the 
automobile was damaged and plaintiffs suffered injuries, The second 
count charged the defendants with wilful and wanton misconduct. 
Iseué was joined. Before the trisl vegan, plaintiffs dismissed the 
Gage as to the defendants Jewel Tea Co., inc., and & i. Christopher, 
and aleo withdrew the second count. The trial lasted a week, At 
the close ef the plaintiffs’ case and agein st the close of all the 
evidence, the court denied the motion of defendants for «a directed 
verdict. The jury returned four verdicts each finding the defendants 
guilty and assesaing damages for Guy V. Lehman in the sum of °6,500, 
for Harry Kiinke in the sum of %50, for Louis A, Jryer in the sum of 
$8,000 and fer Joseph *. Murphy in the sum of °500. On the day the 
verdicts were returned the court entered judgment thereon, In due 
time the defendants filed four motions for judgment notwithstanding 
the verdicts, one for each separate claintiff. Befendants slso filed 
a motion to set saide the verdicts end to grant e new triel. The 
court entered an order denying defendants’ motion for judguent note 





BORL JAatia 


Tafioo Aglare 


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), staebaeted 


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eYTHROO 2600 


‘KR Ween 


oTO0 ENE TO-MOTELYO ENT CAeUVETEC Wave — — 

-f eset ,sankl2 yrish ynomdst .V wi ,@86£ ‚oc dorm ‘nd ~ 
soktaqu® sft at tataienos Inver ont & BOLEY toyd sh Whwed — 
od 


te ted? Derreve saya teTst oat .oAT ,.09 407 Lowel bas Heddotetid 





e ai elidomotus aid yaivith vee aemdod que (eter an om , ye 


teeny AsSE tear meon To te SunwA baateiod coy mosdeorts yixederon 
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dt Yo s2usquove oxy aoaiala taste edt onde hancement J 
— — 
as premio Ye oue rons mit at oaen weds to Lie todd 


on S22 intgs Bar ~ | 
tadd ban jelidomotus ost te reon ae ae brie ey. worae mao ——— 







‘ad? adasbasteb te faq 989.0 soamgtigen te eg0a walte 
baovee oↄcr sootuutat devetive ottidatede hae be — 
_— stoubaooedm aoanon ina bbe “tin etashasteb ods bo redo ta 
edd beaciwath ertientolg — — ot arene be ato (ues tt 
stodgotedtHO 1 48 bas 4 905 4408 201 ove wbantastah ons ci | 
ta aise 2 begask Labs oat _ swan bagees dt we 
out Lis to ‘erole ods ta alege —* — —5—— 
“petoordd # tot edashastsh to Moston add beiaot ‘Pied babs * tye 
‘ednefasted odd gnibalt dods edolbzéy xwot Beaxieed ‘yuu ‘edt hedititr | 
008,88 Yo mse odd mi mended .¥ we rot eegsunb Sitiiediis aa’ Yeling 
to mwa 6d¢ at toys 2A alwod tot | <6G0 V9 sis st a iekia yeaah toe 
odd yet oid 20° 068! "YO ite ndd n2 yada Ge ‘ddosot nat Bae GO0les 
out ‘at “itodesdd sieuyidg betésde eauee Sad — — — — 
‘puthantedtingon tnetybut tot eaolsom tuck beLft atnabaeteb —. j 
Hell? cele etanba sted niitiitode stersgée dose rot die” toibrey ode 


tehey Sdun néaenyer sat _xovonsr ot 
eat holed: wea s anerg ot ae * —2— 









Se ae ee 















3 
withstanding the verdicts as to 911 plaintiffs and overruled the 


motion of defendants for 2 new trial as to Oryer, “urchy end Flinke, 
The court granted » new trisl as to the claim of claintiff Guy ¥. 
Lehwan, The latter filed « petition for leave to appeal from the 
order granting the new trial, which se sllowede 

The instant petition is filed under a provision of Section 
77 of the Givil Practice Act, (@sr. 201, Ch. 119, Ill. Rev. Stat. 
1939) whieh reads: “An order granting » new trial shall be deemed 
to be 2 fineli order, but no appesl may be taken therefrom, except 
en ienve granted by the reviewing court, or by 2 judge thereof in 
vatetion within thirty days after the entry of the order, on motion 
and notice to adverse parties." The provision is designed to 
promote justice and to prevent « verdict warranted by the record 
and justified by the evidence, from being set aside and lost to the 
party who was fairly entitled thereto, snd such litigant foreed to 
undergo the hazard of another trisl with the further ineidents of 
delay and expense, (jiettaw v. Retsil Hardware Mutual Fire Ins, Co. 
285 Ill. App. 394, ) 

In order to determine whether there was sn abuse of dis= 
cretion in the granting of the new triesl, we have cnrefully read 
the testimony of the witnesses, On December 15, 1936, plaintiff was 
employed as a linotype operstor at Goldblatt Brothers printing plant 
located at Pershing Roed and Yoleott Street, Chiexgo, and Lewis Dryer, 
Herry Klinke and Joseph Murphy were slso employed in the same plant 
as linetype operators. Their hours of work were from 6 P. Me to 
2:30 A, a. They all lived on the north side of Chiezge. Lehmsen 
owned a two deor 1933 Chevrolet Coach. Plaintiff snd his three 
fellow workers were returning home from work shortly after 2:30 A.M. 
Plaintiff was driving and Dryer was sitting alongside of him in the 
front seat. Klinke ast on the rear serxt behind plaintiff and Mar phy 
sat on the rear seat behind Dryer, Ashland Avenue is a north and 


south highway in Uhionge. Between 39th and 35th “Streeta, the east 











ed? belurseve bas —— iis of em atofizev on? 3 
ettail bue yiardl .reys ot i feast, OO ® tot etdebasten J 
F Wiitadsle to sislo of? of en Latet uot & desasts Styoe edt 
98% mort dacccs of oveed tot noldited 6 ‘belit westel, ext ' mendel 
ebowelis ow. Motdw..teixt wou edt gatinety xebt0 

notsest te neleivotc * tefmy belit ef aolgiveq tentend edt 
stae® von 11 Olt oto 168 suet) .90A Sorttoart tivid ear to 17 
benesd sd Lede inime won © yaktarey ‘robto inh tebaer dotéw (@8OL 
tqeoxe qnortored? xoded Of Yan fosaga on the .tebte oat = of oF 
“gt Tears oghul s Yt to .tzu0e galwelver ody ye bediety evsol to 
aeitom te ,Tehto sd? Te ettas onit “yedte yah item alddin wot¥aedy 
of Senulawh wi soletvorg edt * eokfang ‘eatevbs dt ‘oditéa tas 
brgoot sat eo bednavune talbeow’a dibsele Seid ada Wiles, 
ede of teol ban thins tee gated mort ,sonekive edd yd bettttent bie 
o2 beoret tmagdtit dows hare oteredt belektan ‘Uxtet — 
te ataodieai roaern ads one taint redtout Yo bee a6 ‘casi 
"(ce te 
i 3S laa 0's al Sle ag ee 


Beda. galas tah ar stoi , 


beet Uiheme oved ay takes wan oat te: 






















‘gaw teitatela (eeet .4i vedeéosd nO” iw ‘edt to ¥ ? ; 
tanta galtaiza etetters teeidbiod tn todexeuc euytontt ‘ita 
— 

A alvel bas open ho stosa# ttootor bas bao gold de ‘Borevor 


tnain ease oft at Doyosans osts over yg — kab bande Yaa 
gf uu. 8 ott eter ator to etued thedt “serdtatego eqtdenit és ; 
“nsaded 20300210 to able arion od? mo bovis ila youd? —9 hi Otte | 

* —D ‘pad bas naaao⸗ta donot soLorved® eter ‘Poab oft' a Deere ‘ 
aa. A 08:8 softs Ustode Atos nowt — yataruter “erow exeitor votier ] 
oat nt wks to ‘ebtesaols palsse * ors “bas galvixb sew "pow HhdabEis | 


as * * stan * ai 

- veer bas ‘Mitatalg bated taoe Ist eat & ton oxdadix tate <oTt 

ar ivatale sterugay wba a — ted y eae 
od t208 Ta07 













bas arros ⸗ et oun — J 
a OE Mase py Sa ites, dapy 


tene ode ——— “4988 bas 9B aoendsot 
are i Le raven a 


3 

and west streets do net run through, but stop at the weet side of 
Ashland Aveme. The collision out of which the section arose sccurred 
on Ashland Avenue just opposite where 36th Street interseots from 
the west. At thet point Ashieand Avemje is 70 feet wide from curb 

to curb, with an unususl subdivision of traffie lanes. The space 
between the vest curb and safety island for southbound ears st 36th 
Street is 35 feet, all of which space is for southbound traffic. 

The esfety island is 6 feet wide, then there is 2 apaee of 2 feet 
between the island and the southbound street car tracks. The 4 
tracks occupy ® space of 15 feet 4 inches, ineluding the space 
between the north and south street car lanes. Then there is a space 
ef 13 feet 2 inches between the northbound tracke and the east curb. 
At the time Aghland Avenue was widened by the city, the street cer 
tracks were not moved to the center of the street. As 4 consequence, 
the southbound traffic in thst area has more lanes and more freedom 
of movement than the northbound traffic. Plaintiff drove the car 
east on Pershing Road to Ashland Avenue, wehre he turned north. On 
Ashland Avenue he drove into the spsece between the curb and the 
northbound street car tracks. When he turned into jshland Aveme 
there wes no traffic ahead of him, but when he passed 38th Street 

he observed a truck in the ear tracks proceeding north about hslf 

® block ahead of him. At that time plaintiff was driving betreen 
20 and 25 miles per hour and the truok ess traveling between 15 and 
18 miles per hour. fhe truek contimued in the car tracks and Lehman 
continued to drive between the curb and the cer tracks, and when he 
was within 20 feet of the rear of the truck, which was 2» combined 
tractor and trailer, the trailer being approximately 21 feet in 
length and the tractor part about 11 feet in length, he sounded his 
horn and flashed his lights from dim te bright and beck to dim again 
as he was about to pass the truek., Ag he resched immediately beside 
the tractor, the truck turned te the right and struek Lehman's auto- 
mobile on the left side, The biow caused damage beginning at the 





— 


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4 

left front wheel, then the rear part of the left front fender, 

then the left door, including breaking the handie, and the ieft 
rear fender was bedly crushed and the whee] damaged. The car went 
out of control and ever the curb and inte the corner of a fence at 
the northeast corner of whet would have been 36th Street had the 
street Gontinued through st the east side of Ashland Avenue. The 
point of contact of the truck and the automobile #26 almost at 

the center of a driveway opposite 36th Street, A plat received in 
evidence shows that the space ernst of the curb on Jehland Avenue 
epposite to where 36th Street intersects with Ashland Aveme on 

the west, runs for a distance of perhaps 150 feet from the building 
line to a *desd end" amd is marked “unpaved*, The map does not 
indicate whether this is a public or = private street. There are 
two railroad switeh tracks in this space, one on the north side 
and the other on the south side. Between the switoh trecks is a 
apace, whieh from a photograph received in evidence, is used for 
the purpose of parking trucks. #¢ assume thet some of these trucks 
also haul freight to and from the railroad ears spotted on such 
tracks. There is s driveway which gives secess from Ashland Aveme 
to this unpaved dead end space, which driveway extends in an easterly 
direction from Ashland Avenue. Witness Klinke marked « photograph 
which shows that the point ef contact of the truck and autemebile 
was opposite the center of the driveeay. This point is sbout 25 
feet from the corner of the fence where plaintiff's automobile 
finally etepped. Lehman, Murphy ond Klinke atated thet no signal 
of an intention to turn was given from the truck. The impact 
fractured the right knee of Lehman, brealting the patella into 
several pieces so that a one half inch separation of the knee cap 
could be felt before the operation to his knee, the operation, 
umer ansesthesia, was performed by an orthopedic surgeon at the 
County Hospital, by cutting open the knee about 7 inches, which 
disclosed that the upper half of the patelin was in one piece, then 


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* 


5 
there was 2 one half inch seperstion with the lower half being in 


several fragments. fhe soft tiesue was sewed together and heavy 
silk peut zround the broken benes. Your months later i-rays showed 
thnt the fragments were held together by fibrous tissue and not 

bony hesling, which condition is permanent. At the time of the 
trial, pinintiff's right knee was three quarters of an inch larger 
than his left, his right thigh wes smaller than his left, he had 

a 35 degree less bending in his right knee and a 30 percent permanent 
disability. He limped and suffered pain, particulsariy in cold 
weather, and could not do his work as before, which work required 
that he sit with his legs under a linotype mschine on a chair 2-1/3 
inches iower than a normal chair. Pilsintiff also sustsined a cut 

in the forehead in which 7 sutures were taken, and « cut under the 
chin which required 3 stitohes. He remained in the hospitsl from 
December 15, 1936, to January 22, 1939, during which time his 

right leg was in a eset, and after his return home he wes in bed 

for about 10 days. He was up with the sid of @ eruteh for a week 
and used a eane for the fellowing three months. He returned to 

wrok on February 6, 1939, 4t the time of the accident, his esrnings 
were ®61.90 per week. He had been working 28 a linotype operator 

for over 20 years, and was then 42 yerrs of age. The testimony of 
plaintiff was corroborated by two of the occupants of the automobile, 
Murphy 2nd Kiinke. fhe other occupant, Oryer, had no reeollection of 
the occurrence, as he wag rendered unconscious and rewsined in that 
condition for some time, The defendant Archie ‘slker testified 

that he was an auto sechanio and that he was testing the truck on 
the street after having made sinor repairs; that he drove as far as 
Demen Avenue and 39th Street, and that immediately before the 
occurrence he was driving the truck northward on Ashland Avenue in 
‘the northbound street car tracks, with the left vheels at the left 


rail and the right wheels overlapping the other rail. He stated thet 
he intended to turn to the right, or east, in order to drive the 


7 


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& 
truek into the sonce between the railroad treecks opposite 26th Street, 


He stated that when he got within 50 feet of where he intended to 
turn, he applied the brakes and 1it the directionesl light, which 

wes on the right portion of the cowl above the headlight. He first 
saw the glare of the lights of the sutomobile shen they were right 

at his truck and the car passed on after it struck his truez, went 
out of control and hit » fence. He sise atated that before the 
oGeurrenoe he turned his wheels to the right sbout 1-1/2 feet “to 
warn anybody". He seid he did not see what part of the automobile 
came in contact with his truck and that after the impact he sat 

quiet until he sax no one woving in the automobile, when realizing 
someone might be hurt, he went over to the automobile. He further 
testified that the truck was « tractor and semi-trailer, sbeut 33 
feet over all, thst the trailer was about 10 feet high and the 
tractor ceb 8 feet high; that the width between the wheels of the 
eab was 7 feet 6 inches; that the heels on the trniler were dual, 
which added an additional 6 to 10 inches on each side, so that the 
space between the wheels in the rear was about 30 inehes more than 
in front as the front wheels were on a line with the inside dus] 
tires; that the body of the trailer overlapped each wheel sbout 4 
inches; that the front fenders were about 6 inehes wide, directly 
ever the wheels, and thet the hendlights were between the fender and 
the rediator., He stated thet he did not have a mirror or anything 
@ls¢ on the cab which would show what was coming from the rear on the 
right, and that the directional arrer showed only on the front and 
baek of the signal and not on the side, He snid he turned the «heels 
to the right as a warning to any approaching vehicles, He alse 
testified thet there were stoplights on the back of the tracter shich 
automatically went on when he applied the brakes; that the space where 
he was going to park the truck was clear and thet he could have 
turned on » %) degree angle, James Mo. Jacobs testified for the 
defendants that he wns s chauffeur for James A. limnah, one of the 


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7 

defendants; thet he wes working on the shift starting at 5:90 A. He, 
and that at the time of the accident he wea standing at the doer of 
a garage, the north side of which garage wae lecnted on the enst 
gide of Ashiand Avenue, sbeut 109 feet south of the unpaved space; 
that there were tro entrances to the garage, the south entrance 
being sbout 175 feet from the place of the coliision and the north 
entrance 135 feet away. He stated that the sutomobile 9s right 
alongside the truck when he first saw it, and that when it got to 
the front end of the truok it swerved and smashed into the corner 
of the fence and that he ran right down to the car; that when he 
first saw the truck the headlights and directionsl signal were lit. 
On Gross-examination, this witness stated that he wea in the north 
doorway; that when he first saw the truck it was about 15 feet north- 
west of him and that the other automobile wae exactly opposite it, 
about 6 feet in beck of the truck; that when the truck passed him 
it was going 8 miles an hour and was slowing down es it went by him; 
that the truck stopped when it was 55 or 60 feet from the driveway; 
that he could not see shat wae taking place between the left side 

of the sutomobile and the right side of the truck, and that he could 
not see vhat came in contact with what, Frenk Nohner, introduced 
by defendants, stated that he was a chauffeur for James 4. Hannah, 
working on the same shift starting st 3:00 A. He; thet he parked 
his automobile on the west side of Ashland Avenue about 50) feet 
south of the north door of the garage and crossed the street from 
west to east; that he let the truck go by him in the northbound 
rail of the street car tracks; that he saw a oar coming from the 
south in the northbound rail and ran to cet on the sidewalk; that 
the car continued in the northbound rail until within « few feet 

of the trailer, then swerved to the right between the curb and 

the tractor and past the traotor into a fence at the corner; that 

he did not see the truck and the automobile come together at all; 
that he ran down immediately and then went to get help; that he 


=v ae he a M 


3 


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8 

saw the stoplight and signal light on the trailer. tpon croas- 
examination, this sitness stated that when he was half way across 
the street, he saw the truck 309 te 400 feet aray; thet he continued 
to walk in a normal wsy and let the truck go by in frent of him; 
thet when he reached the northbound rail the truck was stopped 75 
feet away from him; that he looked at the truck as it was standing 
in the northbound rail; thet he then weslked east and looked nerth, 
not while he eas standing in the track, but while he woe standing on 
the sidewalk; that he walked over to the sidewnik before he looked 
north, thet he saw the truck down at the corner opposite 36th Street; 
thet when he icoked north the eutomobile was st a northwest angle 
from him about 15 to 29 feet and in the northbound track; that in 
the meantime the truck wos atill standing at the corner and after 
the automobile got up to the trailer it awerved to the right end 
continued in « northerly direction past the truck, mybe 5 feet from 
the trailer, and when it passed the trailer it went on an sngle 
toward the sidewalk; that he did not hear any crash; that he did 

not see the directional light when the truck peszed him but sow it 
fer the first time after he reached the sidewalk, 

The trial court in denying the motions for judgments not- 
withstanding the verdict, and in denying the motion for a néw trial 
as to all of the plaintiffa, except Lehman, necessarily recognized 
that the plaintiffs, including Lehman, had established by a pre= 
ponderanee of the evidence that the defendants were guilty of 
negligence, as charged in the complaint. This ruling slso makes 
it plain that the trial court wae satisfied thet no errors had been 
Committed in the trial. It is appsrent from the record that the 
reason why the court granted the motion for a new trial as te Lehman 
was that he feit the verdict was against the manifest weight of 
the evidence on the question ef contributory negligence. The Complaint 
eharged defendants with having failed to comply with the requirements 
of Sections 65, 66 and 67 of the uniform act regulating traffie on 





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BEB ox tact? pioovo ye tied som bib Od #ed¥ plfowsble edd ‘biawee 

$4 woe dust wid Bonend dour? of ede Fdyit tAdondooth Sds “Soe Fea 
 thewebde sad Basonse od todd odd Fauld Sad cok 

nto edwonpbdt oY anoldon od gadyas ni Hud Lalzd dd” “*” —4 
wed & tot aolton odt —XR at Bue \dotbrey + odd yaibnedadéhy 
besingover Yltacesoen _anmdel dqe0x9 wortintale ‘edd 26 Ets 04 e 
more e yd bedeildates Sad aemdod: gatbulont “Sottadatale Sad dade 

~~ te qituy stew efashoateb odd thdt Somebive ‘odd Yo eenerebaeq 
cidén onte goitut efdt .#italgmoo ‘ode ‘ni bogtedd de sodegiigen 
need bad wrote om dodt Botveieda dew dtuos inded odd 9ddd diate "2 
| ede dade beoost of? dba ducedndl ar #t bu⸗ HE Bestiation 
i noudét ot ee 14144 Won d°Hov donGw” OUP Weledlihy "Fxiee Oa? Qed Wodlide 
: $6 sigtew teotinen ext taniags aw POEeiy Wad efor ea 'gddt dhe 
i} mauatanos oat — ————— 








ao eFttext guftetuget’ ‘tos pecan * 


2 
highways, (Par. 162, 163 and 164, Oh. 95-j/2, 111. fev, Stat. 1939) 


which read: 


"65. (a) io person shall turn « vehicle from a direct 
Course upon « highssy unlese «nd until such mevement can be 
made with ressonable safety and then only after giving a clesrly 
audible signal by sounding the horn if any pedestrian may be 
affected by such movement or sfter giving an aporoprisate signal 
in the manner hereinafter provided in the event any other 
vehicle aay pe affected by such movement. 

(o) 4 signal of intention to turn right or left shall 
be given during not less than the iast 109 feet traveled by 
the vehicle before turning. 

(¢) No person shali stop or suddenly decrease the speed 
of a vehicle without first giving an appropriste signal in the 
manner provided herein to the driver of any vehicle immediately 
in the rear when there is opportunity to give such signai. 

66, The signsis herein reouired shall be given either 
by- means of the hand and arm or by * aignal lamp or signal devi ce, 
but when 2 vehicle is so conetructed or losded that a hand and 
arm signal would not be visible both to the front and rear of such 
vehiole then said signals must be given by auch « lesa or device, 

67. All signals herein required given by hand and arm 
shall be given from the left side of the vehicle in the following 
manner and su0h signels shall indicate as follows: 1. Left turn - 
hand and arm extended horizontally. 2. ight turn - Hand snd 
atm extended upward or moved with 2 sweeping motion from the rear 
to the front. 3. ‘Stop or decrease speed — Hand and arm extended 
downward," 


We agree with the contention of plaintiff that the testimony in 
behalf of the defendants admitted either of the following facta: 

(1) that defendant "slker came up to the place of the contact, turned, 
stepped and listened, and then lit his directional light, or (2) that 
he lit the directional light within 50 feet before he turned, and 

not 100 feet as required by statute. As the court, in effeet, found 
thet the defendants were guilty of the negligence charged and thet 
such negligence was the proximte csuse of the injuries, the only 
question is whether Lehman was guilty of contributory negligence. 
Agcording to the evidence, the truck was proceeding north in the 
street car tracks, The truck driver did not see the automobile 
before the time he saw the flash of the lights, just before the 
impaet took place, There is no evidence thet the plaingiff ees 
driving at » high rate of speed, in fact, it is clear thet he was 
driving at a reasonable rate of speed, He us driving in the space 
between the street oar tracks and the curb, and he had a right to 
expect thet if the truck was to be turned to the east that an 








& 

(GtCL Bose avo LAT OSE oA ghOK Baw. BOL SOL omed) ceyandahs, 
bees sete 

_Seeorkt 2 sett sieidev 2 atut da. AP scaite ate 
ed aec teemevem dove ite, tee aS gp estes ; 
Virsedo « quivay tette ylno med? ban Wihae as ds 


od yee aalvtesheq vis ti avod edt yatbover ¢d ® 
laggin staliqerv0G2 ms gaivig 19ke to saemeton dove yd begoetia. - 
toute we ¢aeve oft ai wpe ng teftsalered senses edt ai 
+taswevem dove yd beteat ts * eLoisev 
 diede ttel to * aru? of aoktnegad %@ iamgis A 
yt heieverrsd feet 


i : ; COM taal ett ——— emigre agg 
Hl been edt onnemmeh | . — nA Lite mie 
Rs om e “ete = v 

| sxbtdatinennd” besten xe eae perk 


: | ; Pe — * iy feos 
{ oe TAO —— 5 * ——— ———— fy 7 
Bee S aR — 
—* Yo ohis sel off mort 





AST? aud 

ad Ytoni tse, odt todd thitadale te aoktuszaes ost Athy SeTgs of 
qa die OF one oy biawor 

ietost gittvo Let art to roas a⸗ bets avd⸗ otaataor eb edt to tlesed 


if date ole See J 
bents? ,testage e843 to sonig ene ot u ‘tase red Law sasbasted tang (2) 
tha Le mee _ pay tor 
| taut (8) mo tty Iehodgoansh afd #14 mode * beaeaeli bas bogqeocc 


Bae beaut od aroted test 68 addéhe tyes inneltooxih. ae thi od 
ihe 
«beet ,fostte at .faueo edt 2h sstutete v⸗ hber auoer ss —* ig aa 


tedt ben bag testo sonogt igen out te — oxew stastasteb edt rf, 
-eoesaie Bir 
Yo odd ,soitutal ei? Yo samme ovomixony of bow sangl — 
o⸗ 
-souegitgen yrotieet doo te Wile aen seh a raddeodw ei ment ce A 
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1 asa RiRie 
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oda 8 mted teut eptiigat oat to feat? oat we od omit od? 
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eee tts ig 969 tod? somebeve on ot . Mage, Soauns | 
en : ; ; om af oxodt vier vad! Gee 
® "on tedt taelo at a sock a 2? oder asgea a gaiv 
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| eonqe edt at gatvich con ‘on .boege to otet oidongnnes —9 — * réeh 
| 3 a Wa tL La? wead Bike Brae ‘ 
ot tdgts ⸗ bad ed bas adrw0 edt bas —— teette edd 
C Pee BAe TS Ta tae 
as tadt dono od? of beatut od os of esv douse 






19 

appropriate signal would be given. Defendants ergue thet it wes 

the duty of Lehman to pass the truck on the left. It is obvious 

from the unususl subdivision of the trsaffie lanes, and the fact that 

the autemebile was proceeding north in the lane between the street 

ear tracks and the curb, thst it would be unressonsabie to expect 

plaintiff to pass te the left of the truck, nor would it be reasonable 

to argue thet Lehman could have expected the truck to suddenly turn 

Tight from the street onr tracks to cross 2 space of about 12 feet, 

The question of contributory negligence is one which is preeminently 

for the consideretion of the jury. e do not believe that any one 

Gan reasonably assail the verdict on the ground that it is excessives 

The injuries were serious and are of s permanent nature, sand we 

are satisfied that the sum of 96,500, which the jury awarded, is 

Not unréasonable. %e are of the opinion that the action of the 

trial court in setting aside the judgment was 2 clear abuse of 

diseretion. Therefore, the order of the Superior Court of Seok 

County setting saide the judgment and awarding a new trial, is 

reversed, and judgment is entered here upon the verdict in fevor 

ef the plaintiff, Guy V. Lehman and against the defendants, James 

4. Hannah and Arohie Walker, in the sum of $6,500, plus interest 

at the rate of 5% per annum from February 7, 1940, in accordance 

with the provisions of Section 3, Chapter 74, Ill. Rev, Stat. 1939, 
ORDER REVERGED AND JUDGMENT HERE. . 


HEBEL, P.J. AND DENIS E, SULLIVAN, J. CONCURA. 





eew th tat Sy stanbaer oc stow by ed bivow Langia statxorgaa 
aughvdo G1 #2 .#t8l Sat no dnded odd Weng OF fomdot te —* eds 
tedt toet aft ban ,e%ied ofttert sat to motetvibdwe Laveuny I Leveuniy od mort ; 
testts odd seensed onnt od? ai détom gathoooerg een ‘bLidomotua edt 
feocne of eldenenxouy Od Nuvo th todt adavo ↄut bak cao⸗· xa 
Geseeese og $4 Linen wax lower add Lo Pak Ue gt Wied ot Wktatare 
am? Yaekbue of Xort Sat Siig ll 2S lls hel OAGRE 
— ‘EL tiods Yo scan @ ragto of — 160 » ies Ont mont tags 
tasniuser; of Sebi edo at sdaradtgaa Yrotdtxted® te Aoltwawy out? 
a J9 eveiind tom ob axnut wd? Yo doktnnetiteiied 
ban hot saat — site 0 — —“ tisenonver ase 





bi 















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a en a Ha 





"tsa 4 on See All REN 
dood te trod rotreqv! edt to tébro ot sordtorsat jaottetiotD 
‘weneh aadaoꝛ o edt, teadags han manded. o¥ Nixi⸗ta Oy Fo 
feorsint aude 002,9% Yo aus Ot a yedton widens Mee Memmay yA 
onatedaa ad OREL 4¥ vtaxde. mort mums req RETO Ofer od? g⸗ 
(— pRBOL ated .79n £11 gbT totmedd ,f conten? Yo snotetyory pat m . 
4 hela THARPOUE GHA GSBRIYSA Fl, —— sae? ab ast &e aa 


‘setonco “ * a enema ‘otk die am 


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Gs Porm kre wet? o t wedbreood i | 
fom O22 Qevéch wae — 
aati’ faut . gii eae te tail? att ene ad pat itt swat aed 
+ X oo. q al creas diced toad foncms Hae 
| font as ,beaye Be ofan wegen 2 te — oh 


i ,tan wht, Bie 2 pots * — 





i tet? n * mem dourd 


41395 
CHARLES Wi. UPHAM, 








APPEAL FROM 
@UNICIPAL COURT 
— GHIC AGO. 


307 L.A. 244 


WR. JUBTICE BURKE DELIVERED THE OPINION OF THE COURT. 


SAMURL KERR, 


On ®eptember 7, 1939, Charles w. Upham filed a statement 
of Claim in the Municical Court of Chiosge against Gammel Kerr and 
Glaire Kk. Kerr end therein averred that in June, 1939, he wes a 
licensed reali estate vroker and was suthorized by defendant to 
obtain a ourchaser for certain real estate located at Altgeld 
Street and Harlem Avenue, Shiesgo, for the sum of 715,990; that 
defendant promised to pay plaintiff a commission, if the latter 
succeeded, in accordance with the rates prescribed by the Chicsge 
Real Estate Beord; that plaintiff obtained Charles &. Mirseh as a 
purchaser at a price of 415,090, who wes and is ready, willing and 
abae to purchase et such price, and thet thereby plaintiff eammed 
the gum of $750, Olaire KM. Kerr was not served with process and 
did not appear. In an affidavit of defense defendant sdmitted that 
_ he authorized the plaintiff to obtain s purohaser for the real estate 
for the sum of $15,999, and thet he promised to pay 2 coomission in 
accordance with the rules of the Chiongo Resl Estate Bosrd; thet 
such authorization was given on June 27, 1939; that such authorization 
guve piaintiff the exclusive right to find » purcheser for such 
property for a period of two weeks only, or until July 11, 1939; thet 
Plaintiff did not within such period procure a purchaser; that 
on July ii, 1939, the authorization expired; thet defendant did not 
renew the authorization and did not at any time thereafter employ 
plaintiff as his broker; denied that pursuant to the authorization 
plaintiff obtained one Charles 9. Hirsch ss the purchaser, and that 
Charles &. iiirsch was then, or at the time of the filing of the 
affidavit of defense, ready, willing and able to purchase the real 
estate at the price of %15,000, and denied that plaintiff had earned 










MORY SABI 
THUGS Aan tOlium 

* 208 OF 80 4 
os Be whist FAG 
»TAHGO HHT ao KOTKISO Eat aanava cac cum SOrrevt eu 
tuometate « bolt? medal 4k costed? ORCL ,¥ Tedmedqo? 0 
“bas Tre femal tentens opeoids te Prod: foatotaut ‘dad di ath te 
. paw ad OBES ortvh mi tadt dorsove atexed? Bae creX J otfate 
of tnebasted penttodtus ase bas relord states L204 beaneotl 
Bioytin te batoool svates {aor micttoe wot ceaadotinl « obadle 
gant 1000.21) Yo mut ot? tot yaynoddd ,ouovi wolteh bus teorte 
tattel act tk wtoheeianoe of neainota’ sHabnetab 


im ‘ 
* 


J— 


hae gailite ,ybeor ek bas bor off ,000,E8% 20 wont & th abe-isada 
pemass Yiitaieig ydered? tadt bas vebnes owe te oendonin of ods 
bas sescotg déte bewxes Yon now HOH ott Gxbelll’” st “te sive Oct? 
aaa⸗ bettimbs taadasteb oaneteb to givebitte me al “athe toa bib 





+ ptates Inox od? tot raeedoneq 2 aindde of thitmsesa oar best un Wa | 


— 





ee 
nt cotsetongs 4 vig ob Bovimots ox faitt baa 


i dade jroo etnted {nef aqnokdo eng to velit ee ddin ebnnbeoods : 
- moktastrodtus dove ¢ad? yeeer ,ve endl as aovty dev hotbauitedéin ‘deve 


deste wor rensdorug © batt of tdgtt ovkeuloxe oft Triwntalg ovms 


dem? pObOL ,if yivl Litaw wo «eine aise owt to betteq ⸗ Tot, xexeogexa 
fed? ;rsesdotmd # OTHSoTE botreg dove aidtiw ton bib. Watatala 


ton bib tashbasteb tedt ydetiqne nolsendrodton ads ,@20L tf vue no 


yolqus sortseredt omit wre ta goa Ot bar aolssxttostus odd 9aneT J 
nottasitodtus edt ot taouetug tat beiaeb ;tedond ald 6a Yretadale * 


tadt bas ,toeetotug edt es doetth .6 eeitedd eno bentesde ttatatela 
edt to gatit? sd¢ To omit od? de to ned? eaw dearth a eek 





Leer ont sentotsg oF olde har gatlitw taal — re aavabette 5 


«beatae bed wWitateig tadt betaob bas 4000.0. 


egeoidd add yd bodivoceta netat ont ditto sonebtonoe ab babosodue — 
a ee doatii .& eelted® bentadde tiftalesg tart jhroat ‘etate® Loh 































ne 
o 





2 
any Commission. fhe Geuse wns tried before the court without 
jury and resulted ins finding and judgment for pleintiff and 
against defendant in the sum of #750, to reverse which this appesi 
is prosecuted, Plaintiff's theory of the case is thet “he was 
authorized by defendant to sell certain resl estate owned by 
defendant for $15,000, and that having procured « purchaser who 
was ready, willing and bie to buy 4st defendant's price prior te 
refusesl of defendant to seli st such price, he has therefore earned 
the commissions agreed to be paid." The theory of defendant is that 
the authorization “terminated by express limitation on July 11; that 
4f it extended beyond July 11, it was termineted by the declaration 
to the plaintiff by the defendant on August 9 or August 14, that 
the defendant would not sell the préperty for 915,090; and that the 
plaintiff is barred from recovery by his breach ef faith in writh- 
holding from the defendant information about the ©S50 Kroger lense," 
The first point urged by defendant as a ground for reversal 

is that “the promise of an owner of real estate to pay a broker 5 
commission for negotiating » sele of the real estate is merely an 
offer of a reward, where no consideration is paid for the promise, 
and the owner has the right to withdraw the offer at any time before 
the broker has done that for which he wes to have been paid without 
making himself liable to-tne broker.” The @efendant)does not 

enge this statement, but asserts that a real estate broker 
employed to meke a sale of iand, who, prior te revocation of his 
authorization, procures s purchaser at the price fixed by the owner, 
who is ready, willing and able to take a conveysnce and pay the 
purchase price, has earned the compensation agreed to be paid, There=- 
fore, there is no substantial dispute between the parties as to 
the law of the case. We agree with the contention of piaintiff that 
in 4s case tried without «a jury, the findings of the court upon 
the evidence are conclusive of the facts unless there is error of 


law in the proceedings, or unless the findings are so manifestly 





























a tueitio tugs adt etetec belt? ees Seveo eff  sokoadmmoo Ys 
bite Titvatelq tot tasmpbut dae pathat at Bet iveor bas ytut 
 kevgge eldt dodde earevet of ,G6°9 to mus ous ak sasboeted tealega 
| een of godt of @2eo oct to Yroodt e'Petéalals .betyoonomg af 
yd beawo states Loot alatroe Lien of tuabaeteb yd bestrodéys 
ody eesdotey © botutote swivel! tat hae .OOO,8L8 tot tanhneted 
(of tadty sete: ettnahnetes te yor of olde baw gritihe \ybiex eaw 
borts® sretered? ex ef ,ookty Moun tn [len of thabaereb to’ Isustor 
$a a2 tuabnetsh to yroed? AT ".bheq oc of Boorye Bnoteshamos Od? 
tedt [Lf Usb ao mottodints cnorexs QW betentiedd” goleasteoddva on2” 
Sottetekesh odd qd betantwret sew ef If wet baoyod bobastes 32°42 
tad? ,Bi tagged wo @ tesgevh mo tnebadteb edt ur Teavakerey’ Odd OF 
edt teat bas 7000.81 tok ytaoqetq sat Lies ton bivow smanaeteb emf 
adtin at dthed Yo donors etd YC yrovooor ott bettad ws WidasktG 
A yQeael TeNeee OE? Sd? foods mol sawrotal tmenaeted ene molt gakblod 
— ——— — ——— poo, 
# tetotd « yao of ofetag inet to cotwo ae to oeteotg eft" tail at 
fe yieres af atates [sor edt Yo alse « pritetfogen tot ‘dotndtninod 
 gtndmone edt vot bing el noltetediadeo ox wrod ,btswod W Ye 4ette ” 
| eagted omkt yas te antto sit wewbastw of enyte edd eal timed edd bas 
} — —— * — 2———— — 
— ——— 
aid to solsnoover of olny yor bast te ofse * — | 
~Teawe oe YC Herth eoluy oie de coeedoreg & soribbbitg’ cheldas Froddis WW 
| add: yoy hae” wonsyeenoe! a eahd wd bien ab jalrise Wybeby al daw” 
-ored? sbiag ed Of BObty ablteentqews od? beats ‘had 46024q vendotuq " 
et an eeitrag edt deserted otejeth Labttasedue” on db! oteaa btet — 
tadd Witaielg to aoLtnesioo odd Kéiw-ootye H soand Gad "48 aa eae | 
noqe twao edt? te ouatendt oat iat atibaet SatGH valet EE” 
te votta sh eteds evains etoet * — — 6 op 


against the weight and preponderance of the evidence thot the review- 
ing Gourt may sey thot they are the result of passion, prejudice or 
misteke, Gratiot Street tiarehouse Ug. Ve St. Lovis, Alton & Terre 
Haute Railroad Go., 122 Ill. App. 405. Uefendant insists that the 
judgment is sgeinst the menifest weight of the evidence. In order 
to pass on this point, we have carefully rend the testimony as it 
appears in the transcript. 

Plaintiff is a licensed real estate broker in Jhiecago, 
Defendant is the manager of the real estate department of the 
Chiexgo Yivision of the Secony Vacuum 011 Company, with an office 
at 59 Enst Yan Guren Street, Chieago. Defendant and his brother, 
Williem D. Kerr, a Chicago lawyer, owned a 50 foot lot at Harlem 
Avenue and Aitgeld Street, Chiesage, on which there was a temporary 
structure occupied by s real estate broker. The title wag in the 
name of defendant. Plaintiff testified that in the early part of 
May, 1929, he called on defendant; that he told defendant that he 
(plaintiff) might be sable to find a purchaser for the property; 
that defendant told him the property w:s for sale and that the price 
was £15,000; thet he called on defendant at his office three or 
four days later and told him (defendant) that he had a buyer rho 
had looked at the property and wns willing to make an offer of $8,500; 
that defendant stated that he would weit until somebody offered him 
$15,005; thet ebout a week thereafter witnesa saw defendant again 
and stated thet his prospect owned a 60 foot piece of real estate on 
Belmont Avenue and was willing to convey this piece of real estate to 
defendant and pay $9,000 in addition; that defendant stated he would 
give the preposition considerstion and asked witness to return the 
following week; that the following week witness returned, at which 
time defendant informed him that he had looked at the Belmont Avenue 
property and investigated the value, and thet such property was worth 
about $2,000, which, added to the 29,000, would make the offer for 
his (defendant's) property $11,000; that defendant told witness he 





8 


“velvet Sid trad sanebive edd to eonntabmogerg has Idglor O0% teatage 
to sethepery ,tateesq te tiger ait ore yodt todd? yoo you txvap gat 
edt #edt etutani tasdaeted 80d qq -Ail GEL . 90 Beorhial otuall 
rebto af .soambive aft to ddgiow teetinem ad? Seatoge af, taomydyt 
th ex Womktest edt boos yYiivietse evad oy ,taleg elds ao aang of 
: | ed qtrosaatt — 2 Ml 

segnotds af texeT ofetee Loox beemondi o at Bhtaheli , “ 
ad? to dremtuegeh stetes Last odt Te teyanam add sou 
eosttoe vty itty ~yasomod £40 muse yooot aft Yo moketviG exxetdo 
sTedtord cit hue tembaeted ogandm> daexse not agY tard C8 to 
“ROLtAH fe tal took G2 « heave yeas eyents? # q7TO 60 matLily 
Cyretoamed 2 say stedd detdw ao ,ogeokd® ,2e0Tt blegtiA bas eumevs 
‘edd ai cow alts ont stele states Jaen.9 Yd Debeuooe. qrutegste 
te freq vitwe sdt ai sect Dothatoe? Thidnield stashasteh to oman 
ed tent sasdasted hiet od test jdeabantob.ao bejico of ,SbCL yal 
| “quPreqota edt cot ueesdeseq » hedt ot oldn od téyin. (Yhddatesa) 
to sami? eolite eft so tnehasted ne beileo od ted? 4000.88, sew 
ode reyed # bad ad tadd (Sunbasted) mid bios hae total eyeb, ry0t 
{008,86 Le tstto ao stem oF yotille eo bas yascony Od te bedeol bad 
ket Deustie: yhedenoe kitaw ripe disor od edd bovets Imabasr9d, saat 3% 
nizgs tacbaetsd wan angativ soStecxedt Aven # tues. —AaA | 
st BPadae Lot Io Speke took OB # Heawe seqeon, ehd tds ete ae 











 eeneten — omen SEAS PRE RE 


blvow od betata dashnoheb — —*—— 
“ doldw te ybontutet seentin doom yatwoliot edt tat plo gatwotict 
 BUNSVA tmomiod edt ta betoed bad od Sarit mks —— elton iN 





RMU es SME ce Fda ee a ge 


é 

was going to wait untii he get a 15,000 effer; thet four or five 
days later witness again taiked to defemiant at the latter's office 
and told him thet the prospective buyer with whom he had been 
negotisting was no longer interested, but thet he, (witness) had 

met a broker by the name of Leroy Hirsch, with whom he discussed 

the property, and that Hirseh might be interested in purechesing 

for 715,000; thet he eas working in cooperation with Hirseh te get 
the purchaser to come up to his price; thet defendant stated he 
would not beck down on an offer of $15,050; that on June 27, 1939, 
Leroy Hirseh, « broker, and witness called on defendant at the 
latter's office and witness introduced Hirsch as « cooperating 
broker; that Hirsch told defendant that the buyer he had wes working 
on the deal, and that he was, he thought, very Glose to » deal; that 
should a deal be made he wanted to know when possession could be 
delivered; that defendant immediately telephoned his brother, 
William >. Kerr, sand stated that his brother had advised him that 

it eas necessary to give the occupant of the real estate office on 
the premises 3) days notice to veeate; thet Hirsch asked whether his 
purchaser Gould take the property subject to taxes; thot plaintiff 
stated to Hirsoh that he believed thet any savings to be effected 
should acerue to defendant; that Hirsch then stated to defendant thet 
he wanted assurance that defendant would sell fer 715,000 "when our 
buyer is ready"; that defendant said, "Mr. Upham [plaintiff] has had 
an €xclusive on this property and I will be giad to extend it and 
give you plenty of time"; that defendent atated that he was geing on 
his vacation and thet "if we were ready while he wns away on his 
vacation to close the deal,we should contact hia brother, who is 

and wis an attorney, who would handle the details of the deal anyway 
even if he [defendant] were in town"; that before witness and Leroy 
Hirsch left, witness stated thet he seanted it understood thst if he 
was suecessful in producing a purcheser he would receive the regular 
Real Estate Board rete of commission; that defendant inquired what 








avat to tyot todd pxetie 000,049 s tog od Litaw thew ef yatoy eax 
sektlo e'xaticl edt te taebe&ted of badiat mlega aewmbin todaL eyed 
deed bod ed mode 6tiw Teyad svitgoeqeetg of? ¢o8? mid blest hag. 
bad (agoatin) 6d tedt tud ,deteotetat reysod on enw galtettegen | 
beanwonih od modw Attn .doesli Yorss te gman odd yd tedotd 2.c0m_ 
gitecdowg at betsetstat sd adgim doezti ted? das <ytteqotq ede, 
ten ot doexil déiv moitsteqeco al gudvtow saw od todd .,OO0SSs ser. 
ed hataté tnebastab todt (seize eid oF qu eg00 0? toeadoazuy ef? 
s8EGL 4TS cau so test (900.825 Yo tee ae me awed Aged tom Dinow 
add ta taekooteb ae Lelico eaantiv hae ,tedowd a <doetsh yoted. 
Raitersqoes « eo doutit bequbotéal eatatin bas soktte e'settel . 
galitow azw bad ed Teyn! eds todd tqagdneteh bled doexsH dat jxedetd- 
toute pieoh s ot seode ytev .tdguedt od qany Od Sadt dan Lesh edtmo 
od dives aclsaseeer asd word of Satacw ed eben od iaeb a bivede. 
grediotd eid beagdqeies vistsibonm: suabaeieh stadt ydareviled— 
tedt min bonivhe bed todtetd eid tad? Seseta bas grt]8d .d malliie 
fo 29LIto efaten Leet oat to tnequpes od? evdy of Vaaa⸗oaa ane th) 
eid toritedw hedes doers tad? jetaeav of soto axed Of eeskmanq edt 
Qitatela godt psexes of to0¢den Ytxeqetq ed? ede? bivog tegadoteq 
beteetts of of egtivee yar tend Hovelled of tedé dowthl of betate. 





tadt ¢aabmeteb ef betnts nade dears tadd gtachwetebh of evr0e bivgosa 


twe cede" CO0géid eet Liss Sivew tashasteb tris someiuees betasy ed. 

bas ead [Ytstedete) oeey «me been taghaoted tadd ;"ybeot el cow! 
bas $2 bastxs of beig od Sitw I bas ysseqetq eidt no wyiagiox® aa 3 
ao Bakey caw ec tase Roveta taskmoted teddy tends Xo wariquoy erty 
ald no Yors as Od oiida yhnee enon on Tie ted? bas molssoav eld 
al ode .teddord afd tectaeo bivede.ewySaeh edt Geese o? noltaoey ] 
yaryas neh od¢ to aileteh edt elbund bivew ody .Youtotts as ean bas un 
yors! has essndiw etoted dadt ;"awot at oven [@ashaeted) om ts cove” 
‘od YL ted? Roogorshays tf hetanw od. todd besare — — 
— ‘edt avieset bivor —— Diesen i 3 






5 
the Commission sould be, and that witnese toid him 5%; that defendant 


then stated that he wanted it understood he would not be liable for 
temp Commissions, one to Lerey Nireech and one to witness; that witness 
then told defendant that he need not worry sbout thet, and that he 
need only look to witness in the payment ef commission; that about 
three weeks after June 27, 1939, Leroy “Hirsch tol@ witness that 

his buyer *es8 just about ready to sign a contract and that eritnese 
telephoned defendant's office and »as told by his secretary that 
defendant was on his vacation; that the seoretary suggested that 

he telephone to ‘illiam Kerr; that witness telephoned “illiam Kerr, 
who stated that he knew the witness and knew of the pending negotia- 
tions; thet witness told Kerr thet "it looked like within the next 
two or three days we will be ready to sign * contract and close the 
deal"; thet Kerr stated "when you are ready, if you will ‘phone me 

I will be glad to meet with you"; that three days thereafter witness 
stated that he was ready te have s meeting in order to discuss the 
mechanics of closing the deal; thet an appointment wes made for 

the foliowing »fternoon st 2 o'clock, which appointment was kept by 
Lerey Hirsch and witness with “illiam Kerr at the latter's office; 
thet "we told him that while we did not have a check in our pockets 
at the time, that we felt quite céertuin that in the next day or so 
we would be resdy to tender him a signed contract"} that Kerr stated 
"that was all right, he was ready whenever we were"; thst they 
discussed whether to draft a regular real estate contract or an 
escrow agreement; thet William Kerr stated that was immaterial, that 
Gonsiderable title work had to be done, and that “if I see that you 
really mean business and you have 31,000 te put up, I rill proceed 
with the title work, and by that time my brother will be back from 
his vacation"; that in fact after having received the telephone e¢all 
from witness the day before, he had wired his brother and located 
him in California and found that his brother would be back the early 
part of the following week; that defendant Samuel Kerr got back 


é&. 
y 







i to? oidadi ed ten bivew of heoterebay si beteow od teag betete aedt 
: —X ted? jaeedtiw of sae bes Soethh youed of eno ,ecolaalnmeo ont 
1 ed todd bus ,trdd tuode yrte» ton beat ed todt tnebasteb biet sed? 
tvede ted? jaodoeiawos te tacmyeq ad? at seeatie e¢ deol ylao besa, 
tad? seoatix Biot dosctl yore OSC ,8S cowl tovte adopw cote 
eseatin tac? ban toatiaeo 2 mgie of ybret tuods jeu, son tod aia 
fade yxsser0se ek YW Died aaw bus POLtto s'duabasted bonodgetes, 
e⸗a⸗ desaregun YretoTO9~ 247 ted? jooldaper sii Bo Rey taebared — 
(«ght 9H mALLLI" penosiqelet ceaasiw tet grteR mal LIAN of saodgater. od. 
| enbtagen gutbaeg od? Yo wead dan apnadty edt goad of Sadd, bodote ode. 
(fen edt aidtsy odL Petood ¢4° ted? xxOK hot eammthy fod anoks. 
eas seein bas toatiaeo 2 agis of ybows ad Lite ow. Bye ooxa to ox, 
tated! hte voy tL ,yhaet ote yoy cody" betate xz9% Fes? "feed 
 seemthe tefieeredt sys seud? sed? j"a0y Mtie team of boty pd Lite 2. 
tt apunedh of tobxo ai gattoom « oven of whset sow ad fads botagn. 
Wd tad aor tnemsnsogge foldy ,deolo'o te sogatetin gatwodtes ed? 
jeoktio stratéel sd? go 719% mesity Atty eneatin bas dostth yored 
pt ating sue at Joep  evad tom bth 9m eLidn, todd mid blot on" sadg. 
es xe ysh trem odd at tndd mdedzeo otiup. £192 om, tas? .omkt ent ta, 
bagete t49K tadt {"toe7tmoo benyie 6 ald rebaed ot ybsot od bluow Om, 
“Wedd todd 4" ene oy Toyemedy YoooT aye ad qtdgiz tle pay ted?" 
As to teersaon statee Loox zeluypt 6 ateth et radtedy begeuvelh 
— tedt gdeltetemms apn, ted? betate nx0% matiShy toe 4tngmeergs woroRe 
yoy fast eee XXL" tadt bug gaaob od 0% bad Xzom ofts%, eldaxedtanon, 
heaootg Like 1 saw dpe OF, 100.57 ara yoy ap papataud gape, Wines, . 
Bort toad ed LLitw sadtoxd yu eptt todd, yo Das ghtow oLht od? Atty 
Ligo anodgele? ot hoveoer, gaivad aoeꝛ⸗ dont mh, fade, moktsony ehh 
_beteool bus rodgamd oid Doxty bad pd. tweꝛoa Yap ↄa⸗ enemtty, mart 
ita edt Xoed oc biuos ——— dart, —* ina 












6 

from his vacation on Monday, August 7, 1939; that witness telephoned 
him and told him that “we were ready to close the deal"; that he 

was very busy that day and suggested thet witness call the follewing 
day; thet the following day, Tuesdsy, August 8, 1959, witness tele- 
phoned defendant, eho stated thet he wasn't sure whether or not he 
was going through with the desl; thot witness asked hia, “hy not", 
and defendant said he underatesd there was a Kreger lease made on 
the property, and that if thet was a fact he did not know whether 
he was going to make the deal; that witness suggested thst they 
have lunch the next day, and thet the parties had lunch the next day, 
which was Wednesday, Auguet 9, 1939; that witness told defendant 
thet there was a Kroger lesse signed, cnliing for » building te be 
erected on the property and the payment of 4 rental of $350 per 
month; thet witness told him that "my buyer was ready, willing and 
able to Gonsummate the deal in accordance with our agreement and 

to pay cash for the property in the sum of £15,000"; that defendant 
said he did not know whether he would sell, thet he wanted to give 
it some thought and suggested that if he did not call the witness 
between then [Wednesdsy] and the following Monday, that witness 
shovld call him; thst on the following Monday, August 14, 1939, he 
telephoned defendant and that the letter told him he wae definitely 
not going to sell for $15,090; thet on August 17, 1939, LeRoy 
Hirsch, Charles Hirseh and witness eslled on defendant and tendered 
& real estate contract signed by Charles Hirsch, oslling for the 
purchase of the property for the sum of $15,000; that he tendered 
$2,000 in cash as = down payment until the title could be examined 
and the deed passed; that defendant declined to receive the deposit 
or the contract and stated, “I have told you I was not interested 
in selling for #15,990." Lerey Hirseh, called by plaintiff, testified 
that he was a real estate broker, and, in substance, corroborated 
Plaintiff's testimony, He further testified that he told defendant 
"the plans and thot will take time, will you give us, or will you 


— — 
— bet * 
J 





— bea oauote⸗ eaeatin tad? zoecct F taoyu, «¥ehaek ao it hae le 
io. on tart i"Leeh oft esole of Yoeet eiey OF" tadt wkd Diot bas med 
P gatwolio® od¢ Line erantiy tadt beteogyee bas Yoh todd. youd Ys, gow 
~elst euant le 28S8L 8 tamgor ,yabeeuT ,Yab yalwoliot ad? dad) syab 
‘ od ton to radtede otue t*aeow ot tedy Setete ode ,tasbaetebh bamodq 
7 "ton wit” eid bexes eaentiw todd (Laeb edt ew dgvetd? gatos egw 
a0 ⸗den Sees teyoth © sew oreit Dootatebay ed Slam dnshasteb bas 
f redgons woud ton bib od font s wax tadé th tadd ban .xtteqona edd 
ihe yout fest botasqae sosatiw rede jLawb edt exam of gatey eam ad 
| eee tren astt donut bed esivnag odt tod? bas ,\yeh dixon, ads donut evad 
ir taabast ot bhot cesntin tras j@B0L © teugud .yabenmbey now Andee 
—9* 26 ot path lt ud ⸗ sot gui Lino ebongie sesed Tegots s ean exedt tedt 7 
. t9 oeen to agnor 8 Ys asaxaq odd bas Wroqom ed? do, beteore | 
bas galiite s¥baor ate “roped we" teat mis blot essatty. gods jddaom | 
b bas taemeetg© two Atty sonubreces: at tech ont eraompenep, of, ite | 
tasdasted tadt {000,84} To awe ↄus at ytogesy ost to. deso, vea ⸗ 
ovis ot ‘betasy as tedz tise bivow ed rodvedy voaa tog bib om, bing 
seontin ont ‘Lise fon bib ad tt tase botecygue bas tiyuod? emog. tf 
hi ‘eosntie tadt — Webern gatqolion odd hue [ysbeeabov) aed? goented | 
od ,088L ,ds teagu’ .Xakaok gaivellot ad? me tedt jmid Lise bivods | 
Fix! cay Of mid biot xeotal ent tod? Dan taskaere denodgetat 
yank eeek ASE teugua mo todt 4000804 ot Live ot gato tom 
hetehaet bas tnebastab ae belico esentiy bas dogzth. aelyedd ..AOaThe 
edt xo? gatites douthl anited® ys hengle sogztnes etaten Laas ® 
berebaet od tant {000,818 Yo aye old tot xtreqorg ad? %o sasdetag. i 
beaimaxe od bLuroe Aits eat Ade ——*— Ade Ane, Hh WQeMB 
teoge ot svteoes of pen atosb ooh taphanseh pag7 thenaet AMOR AAT AA 


ie 


| 
4 
| 
J — — tos enw 1 WON, biot oved, td — Brel Di gat dla | 
} 
| | 
F 
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beltitans Thtentete we belive ve Ye 
beterodorroe sonntedive at ary is, 5 


———— blot oa teat bemtigued ‘sme —— 


wot Hiv te yeu erty voy Lite * ont Lite Seat tan py 






7 
aee@ure us you will sell for ©15,000 within « reasonable time se I 
san work out the balance of this denl"; that he (defendant) seid 
Mr, Upham had an exclusive for some time past and thet he vould 
give him time to work on it; that witness anid, "I'm not interested 
in any exclusive, i just want your word, and if you wili shake hands 
with ur. Upham thet you will deliver for $15,005, that is all I want, 
and Mx. Uphem asked him about the commission"; that witness and 
plaintiff both assured him there would be only one commission, 
Charlies 8. Hirsch, called by plaintiff, testified that he waa an 
attorney and a brother of Leioy Hirsoh, the cooperating broker. His 
testimony tended to corroborate the testimony of plaintiff and 
LeRoy Hirsch as te the conversation and occurrence at the tim the 
contract and check were rejected on August 16, 1939. Witness else 
testified to facts showing that he was ready, willing and able to 
Consuemate the deal for the sum of $15,900. 

in behalf of defendant, Fred Breitling, a real estate 
broker in Chicago, testified thnt he knew plaintiff and defendant; 
that in the latter part of July, 1939, he had ® conversation with 
plaintiff concerning the deal; thet plaintiff then told witness that 
"they were getting pretty close to s deal"; that witness said he 
understood “your exclusive expired", and thst plaintiff answered, 
"Yes, but that didn't concern him, he was proceeding with his nego-~ 
tiations nevertheless.” illiam >, Kerr, testifying for defendant, 
stated that he talked to plaintiff about the deal on Monday, July 24, 
1939, om which day plaintiff called witness on the telephone and 
stated thet he had celled defendant, whose office had referred witness 
to him; thet plaintiff asid to witnesa, “I have an exclusive on the 
property at Harlem end Altgeld Avenuet; that witnese interrupted 
Plaintiff and told him thet his understanding was that any “exolusive 
option or Commitment you may have hed on thet property has expired"; 
thet plaintiff stated, "That's true, but nevertheless I an working 
on » deal on the lot"; that witness then atated that with thet under- 





I oe mi? aidanoasot ¢ aimtiy 000,¢i$ tot ise iikw voy au orueer 
bine ( taabdaet oh) ad tus? ;*inok wide Yo somalad edt #yvo Atow ano 
_. bireow at tede bon feng smi? Sm08 tot oviewioxs ag hed madql ot 
petsetetai ton m'I" ,hiew evsntiw todd jot mo wtew of outt mid evig 
ebaad odere Lite wy th bor brow tuoy stew Yeut Tt ,ovteutoxe yas at 
stage I Lis st tent 000,247 vox sevilob Lite woy sadd mnigt val atte 
bap eeeotia test j"no tee tmaa® edt Fu0de widest heiie ‘medqt sth bas 
eHginntnwot one vino of bivew otedt nid dorvees died Mitasete 
. ae ape od tary bol tLtest ttitatelg we boAl vs — E —— 
— atedord gatteteoos ot Martu youl te tedternd « has yourtotts 
| 





hae Yttatelo to wiowltast od? stsxodettoo of d oterse yromtteat 
Aidt wats add ts sonertiuce baa notinetewne® edt oF we destin yored 
ose sasatty § .@bGL .O1 teugus mo betester svby adedd bas tooT?aeo 
_ oF okies Ino gatiily ,yoset eaw of tadt gatwode etext ot bostivest ; 
ca | .000,2f) to mus Sit tot Lesh si? of amuaesoo 
‘eteree Isor s «gakittert bewt ,taebaeted te tiated bE 
_qtmetaered ben Yitatesa wams om todd pelthised .ogsotf0 ni tesotd 
sitiw AelineTeyAoe @ bed art 2O@L unr to tung ‘qovted eft ai tons 
ted? seentin bLot sodt stituieia tedd jfeeb ed? gaberoomes rtteatele 
ed Biss esontiw — ;"isob « et s20lo ytrere ‘gabrteg orew ‘yede" 
__ ghernenene Yivately tedt bus borax evieuioxe toy" Bootetebaw 
~ouen afd tin getboooors cow ext qutd avenmoo #abib todd Sed Quer" 
_ gtanbastet te? gerytitesd yzrex 60 sciiiit “ eetLedexoven Smoktats 
Ao Leh .Yehaow mo teed edt tod Vittadteda of bediad od teat hOtate 
_ bas emodgoiat adit to eoonths beLine “eieatela yed: ‘dotie mo .e8eL 
casatie berretes bad sorts snody vinshaeteb betine bad oi ent batace 
ett ao oyteutoxs a⸗ eves I" gneontiv of bine tertatelg: soit yma of 
|  betqwrredet anecttte | sett qhoumors btegtit dno melead te Ytcedora 
. wrbantoxa® yas tot ann gathasterobas ati todd mid dled bail Yebeatete 
(gtbettaxe ned reaorg teas a0 bed oved yaw vot Htomtimnos 
_ gatsiton na I, cnetedtreved ud oust ered ote 


$33 


— font ditty tet pores —* —R 
“use ted rity joa ee 








—n— — — — niles a eas 
—— —— — — —— 


ee 


8 
standing he would talk te plaintiff; that plaintiff then told witness 


thet he wens working on 2 deal thet he hoped te bring to 1 head the 
latter part of the week and thet he wanted to cet in touch with 
defendant; thet sitness told him defendant was on the Pacific Soret; 
thet he, witness, informed defendant that plaintiff had something 

in prospect and would ascertain where defeniant could be reached 

the latter part of the week; that om Wonday, July 31, 1939, plaintiff 
Game to witness's office, secompanied by Leroy Hirsch, who eas 
introduced to witness; thet Hirsch or plaintiff ststed thet they were 
working on ® deal for the purchase of the property and expected to 
have ® centract signed the following day; thot they were concerned 
about the pesséssion and asked if 2 cancellation netice could be 
sent to the tenant; that witness said he would not feel justified 

in isquing a cancellation notice until he knew there wae « contract 
that was satisfactory te defendant; thot witness had succeeded in 
Contacting his brother, the defendant, and was informed thet he was 
leaving Los Angeles for Chiesgo thet day; thet Hirseh stated that he 
had taiked with defendant to the effect that the purchase price of 
$15,000 would be paid 50% in ensh and 50% seeured by a relatively 
short term mortgage; thet defendant had told Hireeh that he thought 
the arrangement could be worked out; th:t witness replied that there 
were a number of questions regarding the time factor in the contracts 
that he, witness, did not believe anything could be accomplished by 
dis¢ussing detaiis of terms until there a9 an agreement, and thet 
he, witness, wsa not authorized to approve anything, th=t he sa not 
disposed to sey anything until defendant's return; that plaintiff 
and Hirsch asked him whether there shovld be « contract or escrow 
agreement; thet he, witness, stated thet he had not thought p=rticue 
larly shout thet, but that "if there is 4 meeting of the minds, or 
an agreement and 5 purechsser has put up 2 thousand dollars or there- 
abouts, the reat will be a matter of detail"; that plaintiff or 
Hirech aaid thet Hireoh's brother, « lawyer, was preparing 4 contract; 


ef 
| aaeatin bigt aedd Vadninds todd pItitetety of kind Stuow lef yalbiate 

| 4 odd Dam © ot yaitd oF beqad we tedd feeb s ne gabtvow dev ‘Od Fade 
J dtin dovet al ton of —E od teat bos doow edt to Oteq te9rdal 
plane? oftion) ode no sew dnefareted wil blot eeendinw todd yp dasbadreb 
Qaidtemes bed ‘Lidntelq tadt taebmereh Sommetal ,omendiw Lot tale 
_, betionet od bingo tashaeteb saede wietreous bivew ban doodtoty 2 
“Ytssmtedo SEC Le yLvd ayobnok go tadd qaleow end Yo etme denver Ste 
| ssw ote ,doetiN yored yd bekesqmeons .voltto e aventiw oF Omed 

( etew Yedd tort betate Widntelg xo MowTLM todd yeoonttw oF beouborsith 

i _ @t Dagosgxe hae YiTeet¢ old Te senior ot Tot Leod # ao gititror 
ee yoct tom? push gndveLiot ed? beagis teetiaee » ova 

ec bived solton modieiieonen « ti bene baw folneseeoy 4% Hoda 

\beititest Loot don bivow ed bine axentiy teat ;tmanbs ods oo onee 
—« deaetaen « sew syed? wens od Litne aotton natted ivonen # gitueet ai 
; Bi babseooue bed cesatie salt jfaahaored of yrotémrettad abe thi? 
ane od Sand hemtolad anv dae ,tashasted ele .eedtord Sid gattoataoo 
ed dealt Qetatea doer seit jp yab sede ageoadd tet eelogitt “sot yitivael 
i To Seite eandotiu: od? decid to8%te ade of sadkaeted dtie Bediae bad 
|  Moetteder « yd bemwose 808 dae dave af £08 biaq ed Bitow 000,81% 
tigvod? ad tad? deerk! bLot bas tashasteh mad yogenitom mee Mode 
stead ted? helignt sesatiw Sodt {20o Dudleow oo hive Yitonegneten Sit 
| pfoextaeo edt ad totest emit on? yalbmages enodtedus Yo Todas Ofte 
Xd bedatiqueooe ad divas guidoyne. evetied ton oti .eesttiw of teat 
tost daa ,inesserge my een oxneit {itn ewzet to aiteteb witeevoeth 

ton sew of todd .puiddyae everqae oF bestrositun toni eew bettie (et 
“PRbtntelg ged? jomder ctamabaoted Letny pakdryne’ yet of bosoueth” 

— to toetineo @ Od Diode orods totterin mid hoxen’ dooett bas! 
nanltpen tdguedt ton bed a todd betnte \uwentin (ol dad) jtmbndorgs) 
) xo yabain.ogt Yo gaisoon © abwnede R26 tad? tud Loads tioda’ Ubeat” Mg 
~stad? so etaliob baeagodt:s qu sq ond venom ba tind gH 











9 
that they (plaintiff end LeRoy Hirseh) expected the contrset would 


be completed and signed the following dey; that witness stated thet 
he expected to be in his office all the following doy and thet if 
they wanted to talk to him they could do s0; that he had a conversation 
with plaintiff on Friday, August 4, 1939, at which time plaintiff 
telephoned witness that Charles 5, Hirsch, the lawyer, had been i111 
and that the contreet had not been signed on August 1, 1939; that 
there had been some other delays, and thet sitness st«ted that his 
understanding was thst his brother, defendant, sould be back the 

end of that week end would be in his office the follewing Monday. 
Defendant testified in his own behalf and stated that plaintiff 

first contacted him on March 28, 1939; thet plaintiff submitted 
various offers for the property, which were rejected; that on June 37, 
‘1939, plaintiff and LeRoy Hirach came te his office; thot Hirsch 
asked witness shat he was asking for the property and witness stated 
£15,000; thet witness also stated he would pay 2 commission; thet 

at that time witness did not know whether Hirsch was an investor, a 
manager oF = contractor or real estste broker; that he ras then 

asked whether he would be willing to take one half cash; thet witness 
said, “this will all be over within ninety days, all be built 
probably, and it looks to me like it might be workable"; that 


witness called his brother, » lawyer, who stated "it might be workebid 
that Hirsch stated “we will have to have some time to work this out"; 


that he inouired how much time was wanted and stated thet he had a 
Jot of brokers working on the property and thet he had submitted 

it to people; that he told about offers that had been made; that 
plaintiff and Hirsch answered that they wanted ten days er two 
weeks, and thet witness replied he would give them two weeks; that 
witness left Chicago on his vacation on July 14, 1939, and returned 
on Mondey, August 7, 1939; thot plaintiff telephoned him that 


morning and seid “he would like to get together vith me to talk 


Se — 





“Dwow teertnod off hetoogx® (downt® yored bas Ydmaletq) ‘Wat tna tat’ 
«heh Metete eeomtie sede p yeh Atiwollot edt beimke “bas” obistenes of 
tL teds bas yeh getwoLlet adr fle eoltve eid at 90 of beteeqxe “ed 
pal tnezovnoe # bas ed tent goo oh bivoo yout mt OF Mtae OF béddow yedd 
ss enemebedn amt come va ,08L .Y Heogud \QuBEeT ao Witiadl déle 
EER ved Ded peoywed ont (deerit (2 ceteate ald Udedbby ‘Benedeered 
| Gant ,0904 .L teiget no Bemyte need ded Bad Warinde dad Flay MS 
adel Sed) betede enontiy vod brie leeete e8d¢o Smo Heed ‘bed exedd 
1 oo git Sond od Binew .treBeoteh ,eeddoes ett td wow gutbaate ; 

i eyebaow Gateoliot ot enttYo eld af ed bivew Bis Sede tede to baw 
penenaery tous beteed tee ene iad Ob a a Be 
ss hetttedve Hrbtntnts teat YOReL Oe Mokow He kad betoetmod fexkt 
ATS enw no tect jbetentor orew totde SYHegone bt Yok exOTtS eueltey 

alee goae peo tS eth oF anew Mbertit yolied bas Ht dulate beer 

- pesete anentiw ban yeeros out tot geste sot of tade somites ‘betes 

| tedd protestnmod « yad bivor Ot bePRe Gate” ‘phontiy thax 700 

# toveoust me eov dooe2™ coitteste wont tant bib deoadl bali 

q \mettt aw ef ters proxend e¢etes Ivor to tofsarin os es 

enete Poet daeno tlad ene otet of gatiiiv ed Biuow ‘od’ xedteaw ‘peites” 

Sktws 4c $0 yoyab “eeente wtatte tore od cis tthe Gxdd*" jbise” 

4 Ee es ek ae ee j 

didstros od tigta t1” betote edw’ yxoqwat 2° ‘jxbitdeed dia Beliae' eaendle 

; {hte ehdt axon od subd emae cates wes thea ae 

shew od dat hott ban betaine Sent out dont Doxkdbn dt eiite 

__pettindve bad ect tex bas ytmocoty ede me uit ‘eredend'Yd tof” 
tad zohan as de pad ted exstte ‘hiods bios et ont yotqded oF ¥E” 7 

owt co eymb sted-hedne yeds eae Worewene dowel bow Yitithe. 

Sort qaclome ont mont avig SLvow of bottoow voonn tite bai ete · —— 

honmuton bro C8CL OL Vint ao noktsbov whe ne gysoLdd Her os ' 
co tett mid baaodgeker Wt ttndete” seth YORER YY dengan Ne 


ALet 08 om Hto * —* ed SxErbiioe of” cere ‘0 


ae ee th —— wit — * 


— — 









— 












19 

about this proposed ssle, and I supposed it wes what Mr. Hirseh had 
been in to ses me about and there had been 4 tentative appointment 
made to go to my brother's office the next dey st 10:30 in the 
morning to discuss the terms"; thet witness replied thet he had 
talked to his brother the day before and that his brother had not 
mentioned anything about a tentative appointment, that he just got 
back to werk and thet he bed other inquiries on the property; that 
plaintiff said he would like te get the astter settled; that witness 
informed pisintiff that “your two weeks were up before I went on my 
vacation and I didn't know what you were doing until I heard from 
my brother. He wired me s night letter and told me what was going 
en, and I said there will be no appointment tomorrew morning’, 
Witness further testified thet he told plaintiff thet he went home 
the night before and took papers with him and made several pages 

of pencil calculations, and that he was trying to figure out whether 
he would be better off to seli the property for cash at $15,000, or 
to build on a Kroger lease at $350 a month, or to build « much more 
expensive type of building for 2 large soncern comparable to Kroger; 
that plaintiff said he would come out to witness's house thet night; 
that witness replied thet he did not see what good that would do, and 
that plaintiff then proposed having lunch the following day, ‘ednesday, 
Auguat 9, 1939; thet they hed lunch on thet day, and that witness 
stated he did not like the fact thst plaintiff had eoncenled from 
hig thet there was a §350 lease from Kroger; that finally plaintiff 
wanted to know what defendant eas going to do; that defendant said 
he would not s@ll for $15,000; thet witness said, "I will tell you 
this, as soon as | know what I am going to do about this property, 

I will let you know the first thing, along vith obher brokers who 
are working on this deal"; thet by August 15, 1939, witness “had so 
many inquiries about this thing, I anid to my brother, * * * we've 
got to make up our minds what we are going to do here and do something, 
because I am pestered with this thing"; thet on August 16, 1939, he 


OL 


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biases taepaates tad 10d of alos caw saqbaateh, sade wont, ot Fhe: gated 
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ll 
succeeded in getting plaintiff on the telephone; thet he then told 
plaintiff that he and his brother had decided to sell fer $25,999, 
and thet he had already refused sn offer of ©17,509 for the property, * 
There is no dispute thet plaintiff »«s suthorised by 
defendant to seil the shsk eabats for the aum of 15,009 and that 
defendant agreed to pay plaintiff « broker's commission of 5%, or 
#750. According to plaintiff's version, on June 27, 1939, defendant 
said he weuld give plaintiff » reasonable time, Defendant, however, 
maintains thet LeRoy Hirsch, in the presence of pisintiff, asked 
defendant to be allowed ten days or two weeks within hich to procure 
& purchaser, and that defendant scosded by granting two weeks. 
. Defendant decleres that this period expired on July 11, 1939, It 
is conceded that a purchaser was not produced by that date. Plaintiff 
and Hireeh next epoke to William 2. Kerr, an sttorney end = brother 
of defendant, There is = sharp conflict between the testimony of 
plaintiff and Hirseh and thet of William D. Kerr ss te material 
parts of this conversation. Hr. Kerr did comeunicate vith his brother 
who was on the Peeifie coast, and apparently informed him of the 
visit and proposal of plaintiff end Hirsch. Plnintiff, (according 
to the testimony introduced in his behalf) telephoned defendant on 
August 7, 1939, the day defendant returned from his vacation, and 
told defendant thet he and his people vere rendy to elose the deal, 
alae, according to plaintiff's contention defendant told plaintiff 
on August 7, 1939, thot he was very busy and thet plaintiff should 
Gall him the next day. Plaintiff also maintains the$ he called 
defendant the next day and was informed that defendant had not 
determined whether or not to go through with the desl. Plaintiff 
further maintains that at their luncheon engegement the following day 
the desl was thoroughly discussed and defendant stated he did not 
know whether or not he would sell, that he wanted to give it further 
thought, and asked plaintiff te call him the following Mondsy, if 
plaintiff did not hear from him previous to that time, and that when 


* * 2 oak ete Oe Sale 
5 bie? asdt of tact? jenodeelet edt mo Thitniele ynhitoy al ores 
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13 

plaintiff called defendant the folloring Mondsy, defendant stated 

he had decided not to sell fer *15,0°0. The testimony of defendant 
aa to the conversation after defeniant's return from his vacation, 

ia at veriance with the testimony of plaintiff. He did say, hovever, 
thet on Tuesday he took various documents home with him in order to 
ealculate as to whether to make the deal, Defendant mninteins that 
the case was tried and presented to the court on the theory that 
plaintiff relied on the tender of the earnest money and the contract 
on August 17, 1939, for proof of having procured s purehsser. We 
have examined the pleadings and the testimony, and de not sgree with 
this contention. Hoth parties agree that the principal cannot revoke 
the mgency after the broker has procured a purchaser able, ready 

and willing to buy. (Purgett v. ‘einra 219 111. App. 28.) 

Where an owner of real estate employs a broker to sell it for hia, 
there ia a promise on the part of the owner to pey the broker for 
his services whenever the broker produces a prospective purchaser 
ready, willing and able to buy. hen the broker has furnished a 
prospective buyer who is ready, willing and able to buy on the terms 
end Conditions proposed, the contract is executed as far as the 
broker is concerned. (Glatt & Price v. Adama, 226 Ill. App. 321). 
¥rom these authorities it will be seen that if plsintiff procured a 
purchaser who was ready, willing and able to buy on the terms stated, 
he earned his Oommission. We are of the opinion thet there is ample 
evidence in the record to warrant the finding of the court that in 
the fore part of August, 1939, the plaintiff procured « purchaser 
who was ready, willing and able to buy for the sum of $15,009 in 
cash, which res the purchase price demanded by defendant. It is true 
that at the time the formal written contract and the 21,000 deposit 
were tendered to plaintiff, the right of plaintiff to set as a broker 
in the sale of the property had been terminsted, However, there is 
Competent testimony that plaintiff procured « purchoser whe £23 
ready, willing and sable to buy on the terms stated, prior to the 





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| git xe? tt Lise of texord « eyalems etates Lane Yo xenwo an ou ven 
(gt elo att Yee of aNwS Ot To taeq Odd se ROknONE Meh eROde 
i roeciieteg syitoscnoxg 4 eseuhory Yetard ody ToveRedw asokviee etd 
pos @ Redeinnut ead rederd sft sede Wd ot OLda baaigntiite .ybaos 
amr et ont Ko Yud et aide bos gatlite .ybeet at ore cows evdsooqeora, 
tlt 2m tat an Regunoxe et tonsénes add ,bowogotg saattibace bas 
| (1G oooh Lik SOE apmebs .v gots & tte) «hanreeane af sedosd 
(a Remingng Mtantsle Bt Salt wow of LLdn #) eettinostue ceedt mort 
| bedete avet ed? ao wl of alde due gatlite .%bees axe ody nonedomug 
signe at ered? ¢edd moiniqo oft to ot of ~soteeiance ald beatae od 
ak dest truge ant Ye gabbalt ot stnorie ot hreces edt al eonebiye 
—— gagadoriy @ Romuoong Matatesy odd SSCL .tqugeh Resuaq oxek ods, 
ak GOO 21 Ye mue and got yod of olde bap gatlile.«Waorsow.ode 
“qurt ah ¢E staehnoten yd bedasned eat eandomg Odd mew: dodder qsiaeo 
-— $heoqeb 000,46 edd has soettaeonest ine Learee? ont? emtdedd te tadd 
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13 
aotion of defendant in termineting the agency. It is plain that 
the action of plaintiff in tendering » contract and = deposit, was 
done only se = step in contemplation of an expected law suit, and 
did not add or detract from his right to = comsission. The trial 
Court heard the sitnesses sand had san oppertunity to observe them, 
After a eareful consideration of the evidence submitted, we sre 
of the opinion thet the findings of the trisl judge sre not against 
the manifest weight of the evidence, 

Defendent further maintains that if the relationship 
‘of principal and agent was not otherwise terminated before August 17, 
1939, plaintiff forfeited 211 right to » commission by withholding 
from the defendant knowledge of the increase in the amount of the 
Kroger rent, This point was not put in iswe in the trial. It is 
not mentioned in defendant's affidavit of defense, Nevertheless, 
we are of the opinion that the record does not show that plaintiff 
failed to keep defendant informed as to the terms of the preposed 
deal, or that plaintiff was derelict in his duty as s brokere 

For the reasons stated, the judgment of the Municipal 
Gourt of Ghieage is affirmed, 

JUDGMENT AFFIRMED, 


HEBEL, PJ. AND DEWIS E, SULLIVAN, J, GONGUR, 







ee a a 
‘4 
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onside ants —— 








41327 






Lincoln Trust é/Sevipgs Bok, § fy § appa. Frou 
QIRGUIT OGURT 


SOCK OOUNTY, 


| | 
807 1.A. 245 


MA. JUSTICE BURKE DELIVZXZD THE OPINION OF THE CouRT. 

On July 1, 1925, Abraham Jacobs, Shalem Jacobs, Sampson 
Jacobs and Elia Jacobs, being indebted in the sum of °8,0909, 
executed and delivered their promissory note for said sum, due 5 
years after dste, with interest at the rate of 6% per annum untkl 
maturity, and at the rate of 7% per annum after anturity, and on 
the same date, to secure the payment of the note, they executed, 
acknowledged and delivered a trust deed on the real estate known 
as 6140 Horth Kenneth Avenue, Niles Center, Cook County, Illinois, 
which premises were improved by 2 two story and besement brick flat 
building. On April 23, 1934, William L. O'Qonnell, as Receiver 
of the Lincoln Trust 4 Savings Bank, filed » complaint in chancery 
in the Cirouit Court of Cook County for the purpose of foreclosing 
the lien of the trust deed. On August 8, 1334, frank FP. MeGinn, 
an attorney, filed the general appesrance of Abraham Jacobs, Shalem 
Jacobs, Sampson Jacobs and Elin Jacobs and alse filed an answer, On 
Hovember 22, 1934, on motion of plaintiff, Frank Ff. Roeder was 
appointed receiver of the premises. He duly qualified as such 
receiver and took possession. A deeree of enle was entered. Pursuant 
te such decree the property ras sold by a Master in Chancery on 
December 23, 1935, to William L. O'Connell, as Receiver of the 
Lincoln Trust @ Savings Bank, the mortgagee. On January 6, 1936, a 
decree was entered confirming the special commissioner's report of 
sale and distribution, Thereafter, on Apral 18, 1936, the court 
entered an order direoting Abraham Jacobs to pay the receiver as 


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3 

rent for the use and cecupaney of the first apartaent, the sua of 
212.00 per month. He continued to reside on the premises and 
complied with the order to psy 712.99 » uwonth rent. On April 75, 
1937, the statutory veriod of redesption having exoired, a Master's 
deed was issued to Gharles J. Albers, successor to ‘illiss L. 
O'Connell, as receiver of the Lincoln Trust é Savings Sank. On 

May 18, 1937, the solicitor for plaintiff served notice on Frank 

P. WeGinn, selicitor for defenisnts, thet on May 20, 1937, he would 
appear before the Chancellor to whe@ the case ~as assigned, and 
present the first and finel report and account of Frank F. Noeder, 
Receiver, 2nd ask that the same be appreved and the receiver dis- 
charged, On June 4, 1937, Frank F. “oeder, Receiver, filed his first 
and final report and saecount, which showed receipts of $497.00 and 
disbursements of $475.77, lenving 2 ensh baiance te the credit of 
the estate of £21.23, The receiver slso reported to the court thet 
on May 1, 1937, he surrendered the possession of the premises to 

the grantee of the master's deed. On June 4, 1357, the court entered 
an order approving the report and account, sllowing the receiver 

the belance of °21,.23 for hia services, and discharging the receiver, 
On Oeteber 19, 1939, Abraham Jacobse filed « verified petition and 
motion in the nature of a writ of error corem nobis. The petition 
recited inter alia that “during the tenure of said Frank Ff, oeder 
as receiver, on to-wit: August 18, 1936, in his onapacity as receiver 
of seid premises did employ one Leo Kearowski to spray and otherwise 
chemicealiy treat ssid premises for the purpose of exterminating 
insects and vermin infesting snid premises; thet during the course 
of their employment and while chemicselly tresting aid premises, 

and as mn direct and proximate resuit of the negligence of said Leo 
Karowski and his employee, one Larry Cooper, un explosion occurred 
and fire resuited which caused your petitioner to become seriously 
burned, shocked and permanently disabled; * * * that notwithstanding 
the fact that the hereinabove steted accident to your petitioner 


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3 

eceurred during the temure cf the scx2id frank F. “oeder, 2s receiver, 
and notwithstanding the fset that the ssid Prank F. Seeder, receiver, 
had notice and knowledge of ssid accident, the said Frank ¥, Noeder 
did, with intent to conceal from the court the herein described 
negligent sect, fraudulently ond wilfully, whelly fail to account 

and revert said occurrence to this honorable court, and, in 
pursuance of exid wilful concealment, did sholly fsil to e«¢count 

for the expenditure of money invelved in the émployxent of the 

said Leo Karowski in regard to the ssid extermination work contracted 
for, either in the verified report and account or list of vouchers; 
ami as a result of such fraudulent concesiment the court eas kept 

in ignorance of said accident «nd as a result of said fraudulent 
Goneerlment, this court did appreve ssid report and account end 
entered an order discharging ssid Frank Ff, Hoeder 29 receiver on 
June 4, 1937, to the detriment of your petitioner; * * * thet on 
June 8, 1937, your petitioner did file « complaint in law in the 
Circuit Court of Cook Gounty entitled Jacobs vs, Hoeder, et wl., No, 
370 7046, setting forth in necessary detail the xots of negligence 
on the part of ssid defendant; that on April 30, 1938, an amended 
Complaint was filed in enid action; that the ssid Chas. 4. Albers, 
Reeeiver of the Lincoln Trust 4 Ssvings Bank, was dismissed as party 
defendant oh Jenuary 31, 1939, and thet appearance and answers 

were filed on behalf of the other defendants in seid lew suite" The 
petition prayed that the order of the court approving the first and 
final aecount of Frank F. Roeder, as receiver, and the order dis- 
charging the receiver, be vaeated, and that “this cause be con- 
solidated with the case of Jacobs va, Roeder, et al., Ho, 370 7046, 
and thet ali issues be tried in this couse as an action in the nature 
of a bill of equity to adjust the rights of the parties hereto"; 

that any judgment rendered sgsinst Frank F. Xoeder be made a dien 
upon the premises, end thet a rule be entered against Frank F. Roeder 


to show cause why he should not be held in contempt for failure te 


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a 
present « full, true, accurste and complete report and account in 
his appliecstion for discharge 8 receiver. On Octeber 14, 1939, 
Charles i. Albers, as Receiver for the iinooin Trust 4 Sevings Bank, 
filed =» written gaoticn to strike the petition sand motion of Abraham 
Jacobs. On becesber 26, 1939, the court entered an order striking 
frem ene files the petition and motion of Abraham Jagobs, to 
reverse which this appeal is preséeuted, 

The first two points urged by petitioner Jacobs are that 
(1) 4 motion in the nature of a writ of error coram nobis may be 
brought to correct errors of fact oommitted in a court of record 
within five years after rendition of finsal judguent, and (2) that 
faiiure to give proper notice of proceedings is an error of fact 
not appéering on the face of the record sufficient to sustain - 
motion in the nature of a writ of error coram nobis. Pisintiff does 
not challenge the law as announced in these two points, The third 
point presented is that "the relationship of attorney and client 
between Frank ?. MeGinn and Abraham Jacobs, had terminated on 
January 8, 19356, so thst service of notice upon Frank *. MeGinn on 
May 18, 1937, was not binding upon Abraham Jacobs." Under this point 
petitioner argues that on the entry of the deficiency decree the 
relationship of attorney and ohient censed to exist. He also argues 
that the relationship of attorney and client terminated at the expir- 
ation of the period of redemption. It will be observed that the 
notice of the presentation of the final account and report was served 
on attorney Frank PF. HoGinn 25 days after the expirstion of the 
statutory period of redemption. It is difficult to lay down a 
general rule as to when the relationship of attorney and client cesses, 
Determinetion of this question depends upon the fects and circumstances 
of esch case. It may be said that the reletionship terminates when 
the object for ehioh the attorney wens employed has been accomplished, 
Petitioner was required to take notice of the law of this state that 


it ia the duty of the receiver to surrender vossession at the expira- 











ak Iawoqns» das Mogei ateiqwod baa oteTtyoOR ,ouTt glivt.» tasaeTq 
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| 


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goat to TOTEA Aw Bt egnidseootg te eoiten Teqete Svip of, exulted 
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eccb ttiseteds .gidem getge torre to tite 2 to smytag add gh moltom { 
bekd? oct sedmioy owt eeodd mi boonweans ao, wad, edt mgAotindo. ton 
taeido bas yoatotts to qidenoiteiet edt" sod? ai Dotmenetq, tatoq 
_ mo betecimret bad gadooal madatd faa aglow .4 Anewl aeentad 
as an20OM 6% Aneel moge veddon Re Goivree tadd on .B88L .8 Yreumab 
tnicg atdt tebaU “.sdeoeh mantis soqe gabbatd, tom aew gVERL BL yal 
xoupts ofl @H .tetxe of Season taedso baa Yentette to qidemoltniet 
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AB qn 6h 19, AOLEROONER SEMAETN OF TPENENY OH A SONS 


J 









5 

tion of tpe period of redemption. The interest of the defendant 

in the litig tion continued throughout the redemetion period and 

until the receiver should account. Petitioner was interested in 

seeing te the apeliestion of net rents and in @laiming any surplus 

whioh might remain. As 4 tenant he was also interested in the 

termination of his tenancy under the “eceiver, which could not 

Continue beyond the period of redemption. It is «4 mtter of coumon 

knowledge that the practice in the courts of this county sanctions 

the serving of notice of the applicstion for the aporovel of 

— yeoeivers' current and final accounts, on the attorneys of records 
The interest of the client in the subject matter does not end with 
the entry of the decree or the confirmation of the asle, but it 
continues until the receiver hae been discharged, It is interesting 
to note also that the petition filed herein does not say that 
Mr. MeGinn, the sttorney, failed to advise him (petitioner) th=t 
notice hed been served, It is remarkable that although petitioner 
knew or should have known thot under the usual course of procedure 
the final repert and ascount of the receiver would be presented 
shortly after Msareh 23, 1937, when the period of redemption would 
expire, he nevertheless took no action to have the ofder (of June 4, 
1937), approving the account, set saide until Cetober 10, 1939, 

Finslly, petitioner insists that "the fraudulent concesl- 

ment of pertinent fsots by the receiver appointed by the court, in 
his sccount and report concerning property entrusted to him, is en 
error of fact not appeoring of record within the meaning of See, 72; 
that the trial court being a court of equity had the power to vacate 
the order entered in reliance of fraudulent representetions of an 
officer of court, and should have vacated said order and granted the 
relief prayed for". It will be noted that the petition dees not 

4 dite charge thet the receiver Noeder had notice or knowledge of 
the accident. The petition does assert that "notwithstanding the 


fact the hereinabove stated accident to your petitioner occurred 





ee ——— 


a SS ee, a a a 


— 











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| 











6 

during the temure of the said frank F. ‘oeder, ss receiver, and 
notwithstanding the fset that the ssid Frank ¥. Seeder, receiver, 
had notice and knowledge of seid sccident, the snid frank F. Seeder 
did, with intent te concenl from the court the herein described 
negligent act, fraudulently and wilfully, wholly fail to sccount 
and report said occurrence to this honorsble court*, This amounts 
to an inference thet the receiver did have notice or knowledge of 
the accident. The petition, however, is silent as to when cor in 


what manner the receiver sequired knowledge of the accident, nor 


ig there any allegation in the petition, or elsewhere in the record, 


thet the receiver failed te use due enre in the selection of Leo 
Karowski for the work of exterminating vermin from the building, or 
that the latter and his helper were not skilled, experienced and 
fit persons to perform thet particular work, fe sre of the opinion 
that the petition does not set forth valid ground for relief under 


- Seetion 72 of the Civil Practice Act, For the reasons stated, the 


order of the Circuit Court of Yook County entered December 26, 1939, 
is affirmed, 
ORDER APYIRMED. 


HEBEL, P.J. OONOURS, and 
DEWIS E, SULLIVAN, J. DIGGENTSy 


































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41366 
BERNICE GROSSMAK, 






Ve 





HERMAN GROSS: / h — eae 
— ed 07 é Le AAS ke 24 6 

MRe JUSTICE BURKE DELIVERED THE OCFiNnION GF THE COURT, 

On Getober 7, 1939, plaintiff filed her cemplaint in the 
Superior Court of Cook County and therein represented that the 
parties were married on July 28, 1938, thst she conducted herself 
as a goed and dutiful wife; that on M«rch %, 1939, without any 
provocation or justification, defendant abandoned her; that she 
lived separate and apart from hima without any fsult on her part; 
and she prayed for an saeccounting, for temporary alimony, for an 
injunction end for separate maintenance. On october 3, 1933, 
the court granted a temporary injunction. On Ostober 29, 1939, 
the court granted a further injunction. These orders were granted 
without previous notice to the defendant and the giving of a bend 
wag excused, After the issuance of the injunctions, the defendant 
filed a motion to strike the complaint, vacate the orders for 
the writs of injunction and to dissolve the injunctions. The court 
did not comply with the request of the defendant fer an immediate 
disposition of the motion and defendant appesied from the intere 
locutory orders granting the temporary injunctions, Our opinion, 
reported in Grosgman ve. Grossman, 304 Ill. Appe 507, filed April 10, 
1940, agreed with the defendant that plaintiff did not make a 
showing sufficient to warrant the chancellor in granting the 
injunctions without notice, and that she also failed to make » 
showing sufficient to authorize the chancellor to exeuse the giving 
of s bond, We decided, however, thet the motion did not raise any 
point that the injunectional orders were improperly issued without 
notice, nor that the court improperly waived the wiving of » bond, 
We held that the defendant having waived the points that the 
injunctions were improperly issued without notice and without bond, 


ri 
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a 

could not be heard to object on suéh grounds. On May 19, 1240, 
(after our mandate was filed) defendant was granted leave to file 
an amended motion to vaeate the injunctional orders, This amended 
motion urges, for the first time, the points that the injunctions 
were improperly isaued without notice and that the giving of « 
bond was improperly excused. On the aame day the court entered 
an order thet the amended motion to vaeate and set aside the 
injunctional orders, be dismissed, and that the relief therein 
requested be denied, to reverse which this appeal is prosecuted. 

This appeal again raiges the two pointe which were urged 
in the previous appeal and which we decided adversely to the 
defendant. We then ruled that he waived these pointe by his failure 
to raise them in his motion. By the amended motion he dees raise 
the two points. However, it is obvious thet having waived the 
points, hé cannot now raise them Our view is that the previous 
opinion disposed of the two points that are urged in the instant 
appea}, Prior to filing her brief, plaintiff filed « motion to 
dismiss the appesi, One of the grounds asserted therein is that 
eur previous opinion determined that the defendant head waived the 
questions now presented by this appeal. je took this motion with 
the case, 

Having read the abstracts and briefs, s¢ are now of the 
opinion that the motion to diamiss the appeal should be allowed, 
Because of the views expressed, the appeal is dismissed at 
defendant's costs. 

APYELL BVISHISSED, 


HEBEL, Peds CORGURS, and 
DENIS EB. SULLIVAN, J. DISSENTS, 








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of moiton 6 elit YWitolede ,tobed wel gaklID of todee wher 





-— tedt 2L akoxedt Datronge shnwory od to om. oLeoqae edt watmpad a 
ad boviey had tashasteh ods, tad? Seaimtoted, aglates evolvenq > r 


Adin moitos eidt Soot ov — ———— 


io, o ea ace 


ad? te wou ets ow ,eteitd baw atoertede od¢ best —F iota 





abewolls od biseda Leoqge edt selmaih.o? aoltom edt 




























ts Dogeimplh ef deoggs ede ua a * 












det t3 gs TOs 4 saersae wt 
Aentusas FARIGAs any yout San awoddan 
——1 ae wees wih SED — ————— —* 
ey Liab d ders tas ant tad ? 
) bevinw plaeqetgek Sieeo OMF Bz eo re | 
\¢ otalter edt bovinw yehved tmnoae nab ott : 


abated teadd.te 


— ls — — 


Se 





the price of the safé wae $400 and defendants paid *109 and were 


41114 


HERRING-HALIMMARVIE got COM 
&® Gorporntion, 






Ve i ae calla 





Wy" ace ¥ 
PAUL KORSHAK, LESTYR Kgh Digg ae 
HARRIS, LIPMAR. HARA é Y GRICAGG, 





business as CHIGESE SPATE PiewERs, 


LTD., Appellants. 2 ty 7 T A. 2 4 6* 
WR. JUSTICE GENIS E. SULLIVAN DELIVERED THE OPINIGH OF THE couRT. 
Plaintiff Hérring-Heli-#«rvin Safe Company, — eorporstion, 
brought suit sgeinst Paul Kershak, Lester Korshak, avid Harris, 
Lipman Harris, doing business as Chiesgo State Pawners Ltd., to 
regover the balance of 9200 whieh plaintiff alleges is due it on 
the surchese price of « safe sold and delivered by plaintiff te 
defendants. A trisl wees had in the Municioal Court which resulted 
in a finding snd judgment being entered in favor of pisintiff for 
$200, and costs agninst the defendants on their counter-cinia, from | 
which finding ond judgment defendants bring this appesl. i 
No cuéstion is raiséd on the plesdingse { 
The evidence shows thet the defendsnts wanted to purchase 
a new sofe and called at the place of business of the plaintiff; 
that defendants seleeted one of the sefés which was ister delivered 
to them and a contract was entered into bet»een the partica; that 


all@wed « eredit of $100 on an old safe which they traded in st the 
time of purchase which ess equivalént te $206, for which they 
ree@ived credit, and that the balance then remaining due was $200, 
for the payment of which suit eas instituted. 

it further appears from the evidence that after the safe 
was received by defendants they requested that plaintiff take the 
aafe back as it was toe heavy for their use; thet plaintiff 
refused to teke the safe back and defendente continued to use the 
safe and were still using it up to the time of the trial, 


















































sadneliegga 


So } 8 VAtetkei aver betied 
TOG SMF £O BOMLIG SP GaneVEdNe RAVIIdUS fd SLAG SOLTOUL me 
 gfttdteteetos = .Yarqtol ste? siverti—dLategaictO4 WksalslGo eis oyiol ee 
.eietol bived ,lsdevod tatesd ,tederON dwel taningn sive. triguasd, 
ot ,.Ddl atone’ ete2e oyceli® se ceumkeut gatod ,edztel geagld 
Ho th wh ef aegtile Ttitaiala — D — imran 0 <neeoo: TE 
o¢ Mutsinig yd bexevileh bas Bdee ates « ko ochtq seadonug 4 
berluser deid« tug? iectoimvt ed? mt bed eso —— 
xo? @2iteieic Yo tevsh af heveéme gaied taempbwt bas yatbadt » ab 
nett ,alelo~regnves tied? no atushbusteh edt #eadege etecd han ,00R) 
cognthuely att fo Dieter at noltamp OM... 5% 
secdeta, of Setas: atnetwetek adt todd exade epaehlve edB0 fe yih 
4Miltnisic ots Yo seemieud to sonlg aft te Deksen dae ye wore 
| PegHeLish tedsL ane doddy B52er ods Yo ono Hatoeign etaskacten tndt 
teas jacitreg ad? meented otal beretae sew PoeT#ao® # baa andt of — 
⸗ro bas 0065 bing taekastab San OOD aw Ben add te soltg ode 
‘pdt te at dedert Yedt doade otae Sho ae 09 OOK Ro, toro e Rewetie 
Raed ote 0% 4908S 0 SaRder dupe, aay doidn seedotay to pakd 
‘ _ aow gub galalemst asd? coneled ed? todd bag gtthoxe beyteson — 
‘i jh oeibedethtent eee tive dotde to taemyaq edt rot 
J ote od¢ redte tad? somehive od¢ moxt atesgges ted@tut 4a 
| sist Thitaiele tads beteeupes aati ‘ 
* ttitntelq tad? zeeu thedt tot yvaed oot exe #4 Aoscd. dal ix 
; sid osu of beumtinoo efachasted ban toed etae at ean? 9 doavtox . 
eiaist sdt to omit Gd? ot qu #t guiay Litte ores bas 2 





Ne question of iaw is involved in this case, but it is 
mostiy one of facte 

Inasmuch as defendants bought the gafe, paid pert ef the 

purchase price, accepted the safe when delivered and heave not 

returned it to plaintiff and no fraud is slleged or prevep,we think 
the trial court =ss justified in entering judgment in fevor of 
phaintiff for 200, whth coste against defendants. 

For the rensons herein given the judgment of the 
Municipal Court ia affirmed, 

| JUOQMERT AFFIRMED. 


HEBEL, Pod, AWD BURKE, J. GONCUR, 





— a Pan, wae ae!  ephtlb ee dalle dela 
Be Fe. SR DE Re —— — ae qe Wana Sgt r 





SHERROD Ao Det le eeteet oe ak Reh eee dedebia: (let inalaatitle — 
Cok Ri Sea: ie SESS Agee: ove. eke dh oe ak 
qth yadateniness ify po aaeleetee neeheumieagee ot ac SI 
sive <A ae Re a a am ee 

— eye MAP do few eb er ea liga 

he cere at Aeon aera OER: Beit Gee fe Rhee ES 2 Saad 
i. Shi ferioic at? Ser ensagdar ee Cee RRO w 
# Peg ius Tegel ooo pees etter oe See ete ‘sesher ebachaatnd Ande, 
i feet jestdieg MH sean eet atetet sar Seetiee sé ban silt Oh 
@uns Bex OM bing @derbewhe® Rng (GE. seve Shee aie —X sad 
68 ja nt Mio, geet Goile Mee ee te. COM Se devd 2 Benesa, 
. Kets idan ROS 99S oF, SR ROVE MRA ces iteiafe caster Yo, gmkd 
Ose ane we cahadewes ant sniniedingt ot tame ote ghibova Sevhaneg 
sbaturhiaas pao Shas edo te suey * tot 

Sto: ade «edte tedt eniphive ath @ex? ee ——— a b, 
Cio ela |. otha mca 

wes sger Vidtedholey @ea? bareiypet yeete: namie aed. Asnne ves 
Tiitnsteia domt poee thed? cot Whee dud ame ti 9 doad ad as 

Wii anv of beunltone atgebasteh Saw deme whag get aint Lid oeoren ou 
aisict od? to cade ot of Qe a pans 1 erp dean 











41319 
AWHA KOVAB, 






MUNICIPAL COURT 


* nt 


OF GHICEGO. 


307 IA. 247 


MR. JUSTICE O2NIS EZ. SULILIVAR DELIVERED THE GPIRION OF THE Coat, 





BODERN MUTUAL 
® Gorporation, 


This suit was breught by Anna Kovae on an insurance 
policy issued by wodern Mutual Insurance Sompany on the life of 
Peter Kovae who later died on September 37, 1936, in which policy 
Anna Kovae was named as beneficiary. The policy was for 1,990 
and plaintiff alleges tht defendant refuses to pay same. 

The defense interposed to the suit waa thet the policy 
lapsed because of non-payment of premiums and that the policy vas 
not in force at the time of the death of Peter Kovae; that plain- 
tiff had assigned her interest in the policy and has no further 
interest therein; thet the policy had been issued through mis- 
statecents fraudulently made by the inavred in order to obtein said 
policy, and that the maximum amount to be paid on said policy is 
for $330, 

Plaintiff filed an affidavit for a summary judgment under 
Reale lili of the Civil Practice Act of the Municipal Court. 

interrogatories were filed with plaintiff's claim, 
Defendant's answer thereto stated that if there ess anything due 
it was for only #530, but that they had a defense regarding eid 
Glaim, but it does not state what constituted such defense, The 
defense as it appears in the record before us is not sufficient, 


and that which does appear consists of mere conclusions. 

From a review of the record before us, we think the trial 
court was justified in finding for the plaintiff in the sum of $320 
and costs. Therefore, the judgment of the Municipal Court is 
hereby affirmed, SUDGUENT AFFIRNED. 

HEBEL, 7.3. AWD BURKE, J. CONCUR, 











QZAVOx AMA 


‘2 wie Yiveos 








THs IadtoT 


eOHAVTRD YO 


















PES — Pediat) wud 
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wiley soidw mt ,B6GL , TS cedmeidqe? ao beth te¢al odw eavod x0teT 
Goo, ff et eaw yollog eff .yretosteued as Demon ser envoX sank, 
emcee Yeo of seawtet dashasteb ted? eogelizs —— das 
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+ ~sis dyvorst housed aned pad yoliog edt edt jatorsdt feeretat 
b bine mingde of reht0 ai betvent ont yt sbem yLoneLubust? ctnenerate 
et yotion bier do bieg ov of tayvome mumixaw ont tndé ban yyORtog 
ORs tot 


















edau — yxemmge 2 tot tivedétte we boLlt Yileaieli 

sttwol Legieiowl oct to oA eodtonta L2v20 od? to tuk oton 

entalo e'¥iivaiedg dtie beltt etew seltegagotxse@mE 

aub gnidtyne exe etedt tt ¢adt detete ofeted? toweas at tasbastes 

. bhse Bilhtegex censieh «a bad yed? saddt tad 085) ving tot ao ; 

eit ssenstob dose hetetitedos tadw state ton aeob tk tad aatslo- 

+f qimeioltive ton ef eu exeted brosot edt at elseqqe St es sonata i" 
a! eeroleulones Stem to stelateo ta9cge asob dotdw teat oe. 3 

| \ dads $ od? intd? ow yay exoted breve: edt Yo wekvox s mort 








oF 












41164 


IN BEE MATTER OF THE —— OF 
ELIZABETH PL 








WALTER PLUM 
ve \ i 
CHARLES PLUMMER, 378 
Appellee, 


MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT, 

Walter Plummer, hereinafter referred to as contestant, 
appeals from an order of the Circuit court admitting to probate 
a document purporting to be the last will and testament of his 
mother, Elizabeth Plummer, deceased, 

The will was executed June 6, 1939. Elizabeth Plummer, 
the testatrix, died June 24, 1939, following a severe illness 
attended by various complications, Dr. Joseph Sodaro of Forest 
Park, attended her May 21, 1931, and testified that when he was 
introduced to her she did not respond and was reluctant to talk 
to him or explain her complaints, Upon examining her, he found 
a cancer of the uterus and a diseased liver, She was very 
emaciated and the physician described her as the "thinnest patient 
I had ever seen," all “skin and bones." Her principal ailment was 
an acute diabetic condition, The physician suggested insulin treate 
ments and a nurse, and based upon reasonable medical certainty it 
was his opinion that she would live from one to six weeks, He 
said that the diabetic condition in which he found Mrs, Plummer 
would affect the mind and put the patient in a state of coma or 
near coma, that "as one reaches the state of coma, it affects the 
mind, They can do things that they don't know they are doing, 
Their state of mind is cloudy and they cannot think clearly. A 
person in the condition I found irs, Plummer * * * was not in condi- 


tion to transact business, I saw her the next time June 12, 1939, 


SOLID 
HT 10 ARTTAM ur 
gq 4) J HTS 








2 BOBO LPL LOO POLL OLS ON — 


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to aod to otefe s at dnettsq old tug bas baker edd JosTis SLoow 


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»gatob re yeild word F106) ‘yerdt todd @gerkelt “Ob itad"Yoatt’*. bitter 
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mee 
at her home, They had gotten a nurse, She was propped up in 
bed, It seemed more difficult for her to breathe, i got no 
response to my questions in any sensible way. Her condition was 
worse, I saw her again on June 16th. Her condition was worse 
and she was in a semi-comatose condition, From the condition that 
I found Mrs. Plummer in on May 21, 1939, and on June 12, 1939, she 
was in no condition to have executed a will on June 6, 1939, and 
be of sound and disposing mind," 

When the will was executed the testatrix had become so 
ill that because of her diabetic condition she was unable to see, 
The will was drawn and executed under circumstances described by 
Sylvia Barker, one of the attesting witnesses, as follows: 


"I talked with her (the testatrix) and Charlie (the 
proponent of the will, who is named as executor therein, one of 
her sons) the same day. At 2.00 P.M. of the same day. Charlie 
and I were present when I got in there. Mrs. Plummer was 
mumbling and mumbling, and talking about money and everything; 
that Walter, Tess and George (her other children) had money 
borrowed out, and sim was saying she asked about the money and 
everything between the two of them, and then they were talking 
about money they had, and the different amounts, and then Charlie 
told his mother * * * to make out a will, and he told her that 
she was to leave five hundred to Walter and George, and the rest 
to himself. We stayed there a few minutes and went back to my 
home, * * * When I got there Charlie said, ‘How are you going to 
write it7' I said ‘Charlie, I don't know how she wants one thing.’ 
‘Now’, I said, ‘your mother ought to get another lawyer,' and he 
jumped up and he called Siegler (attorney for proponent} and he 
told Mr, Siegler that the will had to be drawn up right away, that 
his mother was going to die any minute, He was at my house and I 
was going to typewrite it. * * * Charlie talked to Mr, Siegler on 
the phone, and he took notes while talking there, and he told me 
‘You want to take down on the typewriter what he had taken from ir, 
Siegler on the telephone, I never spoke to Mr, Siegler on the 
telephone in my life. 


"0, After the will was written up, you took it back to 
ir, Plummer's house, did you? A. Wo, I did not. Charlie did, 
I wes with Charlie. We went into the room and she signed it. * * * 


"Q. Who asked Mrs. Plummer to sign the will? 


"A, Charlie did, As we were going into Mrs. Flummer's 
house, prior to signing the will, when we got out of the car, 
Charlie said, ‘If Walter is around, just change the subject about 
the will, because Walter is trying to get a deed from my mother 
and I got to get her mame on the will.' 'She is going to leave 
$500 to Walter and George and all the rest to me.' He said ‘Why, 
it would be a crime for her to die without a will.’ Charlie put 
the pen in her hands, At the time Charlie asked her to sign the 


will, Mrs, Plummer drew back and did not want to sign it and 


— 


Ye ae RSS 


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setow exw aottibmos aH .dgél omml no atags ted wee I .eet0w 
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edd) @hluisdd bas (xtisateest i. * ——— 


* eno .ateveris —— ply ty : sh Re = — 
a © «fis s ance Tt 
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— 
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Bt ore —— — date ad oa ——— —— 
bas th agteod taew ton ae bas —— PO a a: 





—3- 


Charlie said, 'Oh, ma, come on,* Then Mrs, Davies (the nurse, 

who was another attesting witness) and Charlie propped her up in 
bed. Charlie put something under the will and held it up, and 
Helen spelled out the letters, Then when it was over, she said 
that the 'E' had been left out and the 'T'’ was not crossed and 
Helen then put them in there, Charlie and irs, Davies held her 
up from the bed, Ome was on one side and one on the other, Her 
condition was dreadful. I thought she would die any minute, She 
was all emaciated. She was like a bag of bones. There was 
nothing to her, She did not respond to questions or things that 
were said, then Charlie said I got the will ready, she drew back 
and did not want to sign it. Then Charlie said, Oh, ma, and then 
they pulled her up and Charlie put it under her, * 4 When they 
propped her up and signed the will, I don't think she knew what 
she was doing, I don't think she realized everything that was 
going on. I did not have any other conversation with her, She was 
mixed what was paid up all around and the money she used, 

Charlie was prompting her and telling her. I talked very little 
to Mrs. Plummer, Charlie was in and out prompting her, She said 
she intended to make me executor, and I said, 'No, I would not do 
it.' * * * She kept on saying what money she had and what money 
Walter and Tessie owed. It was unintelligible. I noticed the 
way she kept mumbling over and over, She certainly was not straight 
in her mind about it, because she did not know whether they had 
paid it back or not. She kept mumbling all the time and repeating 
over and over about her money they had, Walter, George and 
Tessie, 


"The Court: Did Mrs. Plummer ask you to sign the will 
as a witness? A. No, 


"Did she ask irs, Davies? A, No, 


"I typewrote the will * * * not from my own knowledge, 
but was given to me by Charlie Plummer,” 


The other attesting witness, Helen Davies, was the nurse 
on duty. The salient portions of her testimony relating to the 
execution of the will are: 


"9. Did you believe her to be of souhd mind and dise 
posing memory at the time she signed that instrument? 


"A. She knew she was making a will. 


"Q. Did you believe at the time she put her name down 
there she was of sound and disposing mind and memory? 


"A. I would not know any other answer but how I expect 
she knew she was signing the will. She told me it was her will. 
* * *# on the day the will was signed Mrs. Plummer was very sick, 
she was emaciated, repeatedly sick to her stomach and in a general 
bad condition. 


“Mir, Guerine: Q. What was her mental condition ani 
how did she act? 


“A. She was confused and worried and expressed her 
worry in words to me, She was afraid somebody was going to steal 
her money. She said that to me. She was unable to tell the 
difference between a one dollar bill and a five dollar bill. 


She would whisper to me and ask me to help her take care of 
her money, When I went into the room, Charlie would stop © 


st 
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LL 9 gatslom ew ede went off | F 


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ysouen one like sateogelb fs fmalos 20 Saw ete overs 


3 I wed dud, uewens <elto Yas wot tom bivow I wah Pt 
ted eew Tb om Slot, ots. visty ecb guimgie tow" eds: wont ac 

‘iio te yuev esy sould .2il Beg oo aw eS ysb oft mo * 
istenea s ah bus dosmete sai of aote yiboteeqes ybetaionme esw ofle 


r fe aottthaoo Satnem medi Raw Pe o — pemirouD ait. =: —V 
“nes! hoaesaqxe bas be i-viow: —— ; he fox I * 
— anion See a ones, ee oat ad abtow mb yaw 
elt ILed oF olden aew odd (om of dadt bise ode ».,Yonom tex 
-iltd isllob evit s bus Liid salLob eno, a meevred somexeT2tb 

to oxso edad ten qied of omales has om ot aogetdw, binow ede 

) gota binow eilisd) ,moor edt otakt taew I medi + vertom tod 





alae 
talking, They would not talk in front of me. On the day the 
will was signed she was confused all the time, every day. She 
mumbled at times. 

"9. Isn't it a fact Mrs, Davies, that she drew back 
and acted as if she did not want to sign it? A. I don't ka. 
It could be interpreted that way. She was confused and worried 
about everything, * * * Charlie put the will underneath ner and 
put the pen in her hand, Hither I or Gharlie spelled the letters 
and told her what to write. I spelled them out, if I remember 
correctly. After the will was signed, Charlie swore me to secrecy 
and not to tell anybody. * * * On the day the will was signed, 
I did not hear her discuss business and carry on a rational con-= 
versation, She was in a daze part of the time,* 

Both Sylvia Barker and Helen Davies had subscribed as 
attesting witnesses bo the will. The attestation clause is in 
the regular statutory form, and includes the statement that at the 
time of the execution of the will the witnesses believed the 
testatrix to be of sound and disposing mind and memory. Upon 
trial in the Circuit court, however, Miss Barker entirely repudiated 
her opinion and gave her reasons therefor, as hereinbefore set forth, 
and Mrs. Davies, while testifying that she believed Mrs. Plummer 
knew she was executing a will, stated that Mrs, Plummer was seriously 
ill, hazy and confused, and at best her testimony indicates that she 
entertained considerable doubt as to the testamentary capacity of 
the testatrix. 

There is substantially no dispute in the evidence. Mrs, 
Plummer was desperately i111 and in the last stages of diabetes, 
besides other organic complications, Her attending physician 
was of the opinion, from examinations made shortly before and after 
the execution of the will, that the diabetic condition in which he 
found her had affected her mind, that she was in a state of coma, 
or near coma, that her mind was cloudy and hazy, and that she was 
not competent to transact business or to execute a will on June 6. 

Where the attestation clause of a will is in due form 
and the will bears the genuine signature of the testatrix and the 
subscribing witnesses, it is prima facie evidence of the due execu= 


tion of the will. (Brelie v. Wilke, 373 Ill. 409.) But this prima 


facie evidence may be overcome by the testimony of witnesses, In 
this proceeding the attesting witnesses themselves rebutted the 


whe 
ods ysb oft nO .9m To tmeat ak aAiet som wee nag oy sanbiles 
ef2 .yab yteve ,emtt ont [fs beestwoo asw ade boagke exw ILtw 
- ,Bomts ta be {dima 
deed weab ole teadd .eotved .eeM foat 2 Stodtael pt 

sWaxt t'mob T A TSE phe od dnew tom SLId esa ——— 
——— bos beastoeo sew sd@ eu ted Hogetqresat ed biged 71 
bes ted disguiobay Likw edd seq etireri) ¥ * * ,gaiddy eve: duods | 
eretiel edt Belleqe etineif to I sedthi ©, does aod ak seq ods tuq | 
Sedmemot I it dio mods belt 22 «edhe of sadw ted blot bas 
yeomsse ‘od om oxows: eilaadd . 2 aaw Iiiw edd isdTA .yYLdooTI09 
‘te -aew ILbw end yab eas ao * * * ,ybodyas [fet o¢ Son bas 
=fioo Lenoises s ae X¥ttsd bas cesniagd aayoeth ted user Jom: bth I 
"emit oot to.gaaq exeb 2 at eaw ede © smodsuasey | 
ca) Sodbroniieh han tecesd nolel: Rew. weieal skvind dies . 
ai ei senelo sold ateetts salt .Lilw ont of aecnond tr yalteedss | 

edt ta tests tusmedsta eds cobufest Say aro Ysotmiade teleport eds 
oid bevedied ceceontiw edd ILtw omg Yo noksusexe ait to ombs | 
Boqd (town dna Brbit gateoqeth ine aves 20 od of xtctatess | 
betsibuget Ylesidae gexusd eel yisvewo# qiwes $hwortd ons cs fobs 

eivrol tee exolodatesed es ,10Toteds 22108 29% Ted ovsg ann aotatao ted i 
tomapiY .atli bevetiod ere tarit galyiitesd oLbeiw. —— s⁊ bas 
yiawoliee eau aomayld .etK dads betste glilw s gatsueexe tew este warn | 
exe feds eotssltiat yaomtjess i)esi teed Je bas .deeiiaco bie yxed eit 


¢ of tovls nat Seed 


to Wlogaes Viataomss aod eit of 25 auob eldarebtenoo fortes retae 


seal .eonsbive odd mi etuqath on ls tine adie ar ; oxen cr? | 
ststodsib Yo eegete dast only mt baw it istareqeod een ic 
— — —EE sof enol sotiqacs — * egbleed 
Tette Sus sioted yiti0ede ebam enobtsnimsexe mort, ,neiniqo add to esw 
A siokiiw nb ots theoe olvedsth eng Soild yiLtw ed Yo settuooxe edt 
amen to ejate s mt esw esiz teds a brakes 19d beJoorts bad ron bao? 
ean ode dard bas a Paci PO Poking oh wl BN yamioo asec 70 
£2 enw 0 Lin  edusexo of no aeenteud fossnety of tantoqueo ¢on 
mrot evb mi ek Ifkw 2 to sesalo ees A sted 
edt bits xiutateed ‘add to oust erate entuneg ont —— ond bas 
~uoexe ab odd ‘to eonebive elest, amisq, et dt * gatdiicedue 


Seep? cut ERT 


ætaa hdd due GO LIT 96 al aa aban) “Lite edit 20 ‘te nods 


bag wore TRZ5 


al -eouzent:bw to yomlsesd est ud: onoonsve. od ven ausshizaop last 
ory botsudes zovicameds abeeond tw galiacdtn edt yakbe sec org elt 








-5- 

prima facie case, There was other competent evidence indicating 
that irs. Plummer was approaching a state of coma, that her mind 
was clouded and hazy and that she had no clear conception of the 
disposition of her property. The record does not indicate that 

the will was read to her and it is clear that she did not and could 
not read it herself, ‘Witnesses for proponent testified generally 
to the effect that they had known her for many years, had seen her 
twenty or thirty days before the will was executed, and that she 
appeared to be of sound mind. But none of these witnesses had seen 
her at or about June 6, after she had become permanently confined 
to bed, lihile it is true that where a witness who has subscribed 
to a will, stating in the attestation clause all the facts required 
for a proper attesting of the will, testifies on the hearing to a 
contrary state of facts, his or her testimony should be closely 
scrutinized; nevertheless, the evidence in this case relative to the 
circumstances under which the will was made, and the physieal and 
mental condition of the testatrix, overwhelmingly demonstrates that 
she was physically and mentally unable to make a will. In fact, 

it appears from the evidence that the instrument was prepared under 
the direction of proponent, who was named as executor in the will 
and the principal beneficiary thereunder, He procured the witnesses 
and requested them to sign as attesting witnesses, under circum 
stances indicating that St was his will rather than hers, 

Section 2 (chap. 148, Ill. Rev. Stats. 1939) on Wills, 
provides that before a will is entitled to probate four things must 
occur, namely: the will must be in writing and signed by the testator 
or testatrix, or by some one under her direction; it must be 
attested by two or more credible witnesses; two witnesses must 
prove that they saw the testatrix sign the will in their presence, 
or that she acknowledged the same to be her act and deed; and that 
two or more witnesses must swear that they believed the testatrix 
to be of sound mind and memory at the time of the signing. The last 
requirement is entirely absent in this proceeding, Neither of the 
attesting witnesses was of the opinion that the testatrix was of 


_ 
giiveoibst souehive iaedeqaoo reside: aaw. ened: 9869. etost smbsc 

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todd etsolbut gon. asoh baovs1 ed? .¥dteqomq ved to gong teogetb 
bisiod bag gon bib ola tads. sasio 22 #f bas aed of bset aay LLtw:edd 
_ Xiletene3 ‘peltiteed tuemogorg ‘90% 2ona sat £0 . Meerosi ta: baer don 
er" 996, baal. -¢2 TB SY yan, Tot sen swornt bad vend $eclg toorte odd od 
. ofe Jandy bas beivoexe 2sw “Eth ‘onid eroted eysh ads 10 ‘<inews 
meee bad eeceend iw eaeds to enon duel .baim bros ‘to od od berseqqs 
penktaoo Yiscenaateq emooed bai ade 193%s a) envi tuods “zo de wos 
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hetiwpét eFost Sdd Ife eeualo soliateetds edt al gattese Lib s = 
a. of gitidert et} mo aoftivaods atilw eat to gutiasdsa ‘reqorg 5 x02 
— "Whezols od” bivosdte ynomtseos “od to ahd cetoat 20 ‘odada ‘istn09 
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mustio reba «2822 0c! bw galteesds as as le ot moxit boteoxper bas 

“<" eved aedt ——— Litw abel aon SH todd yabtootoat seonsde 

‘atti m0 (eed <edeté .vel iow BAL gad) e | aoksooe a an 
fink egeitdd sot oladoxa of boldtéme ek Libw : : oroed dads oar 


rosataed edd yd bong te bas gatitow at od damm LL. * —— —— 


—— Sh THAT 


“Sat foum #1 hots ooh oxi soba ano ence ud 0 exittsdeet 0 
’ See pene 


— 29eeentiw owt esee oas bv eldibeze erom to “ona A —32 
saree 1g ‘akodt ak iLiw axl amgte xiwataet add wae ved staid ovoꝝ⁊q 
tant Bas pbeob bis tos tent ed o¢ ome odd begbelwomlas “in od 

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20 dew xiadadeos eid Feily “Hotmige oii} to abw eoeesitt] 2 tt a 








6 

sound mind and memory when she made the will, and under all the 
circumstances of this case we think it was error for the Circuit 
court to admit it to probate. Therefore, the order of the Circuit 
court is reversed and the cause is remanded with directions to 
enter an order denying the admission to probate of the alleged 
wille 


ORDER REVERSED AND CAUSE REMANDED 
WITH DIRECTIONS. 


Seanlan and Sullivan, JJ., concur, 


“ik madi denne’ treat pose 
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at 


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41175 


ALEX ®, SCHULTZ (Plain; 
and counter defendantfbelow), «°° ) 


oe, 
— 


SADIE K. SCHULTZ (Def€ndant ) 
and counterclaimant below), 


) 
Appellee, ) 307 LA 3° re 78* 


MR.PRESIDING JUSTICE FRIEND — ana OPINION OF THE COURT, 
Plaintiff, Alex W. Schultz, filed a bill for divorce 
against his wife, Sadie K. Schultz, charging specifically several 





Ve 





acts of cruelty. Defendant thereupon filed a counterclaim for 

separate maintenance, also charging cruelty, and alleging that 
plaintiff had left her April 20, 1938, without any cause, ground 

or provocation, refusing to return and cohabit with her, although 
requested to do so. A full hearing was had before the chancellor, 
resulting in the dismissal of plaintiff's bill and the entry of a 
decree in favor of defendant, awarding her custody of a minor 

daughter born of said marriage and $31 a week for separate maintenance, 
as wéll as attorneys' fees and costs of the proceeding, 

The Schultzes were married in June, 1919, and resided 
together from that time until April 20, 1938, except for a short 
period of separation in 1925. For some time prior to the final. 
separation they occupied separate living quarters under the same roof 
and did not cohabit as husband and wife, Mr, Schultz was engaged in 
the scrap iron business, and his older daughter, Esther, who was 19 
years of age at the time of the trial, was employed et his place of 
business, The younger daughter, Miriam, who was 16 years of age at 
‘the time of the trial, attended school, 

The specific acts of cruelty charged by plaintiff are 
alleged to have occurred May 15, 1937, July 18, 1937, and April 29, 
1938. Plaintiff testified that on the first of these dates defendant 
struck him on the head with both hands, from which he sustained 





= sg nt 1¢ : 6 — ———— tneatelorsinwos bas. | 


3* GH? TO MOYMIW SHT J—— — «a TOTLEUG OMICIZAAT AM | 


1 aoe 
eotevib tot [lid s bolti _3t Lurie? * xota Aatata 


isitevee yilsolifesgqe gatgisdo ,silimio2? .A ebbse ,otiw etd senisgs 
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<*2isnetnian stsisqee tot deew s [£8 bas oyatiism biee to nied tetdgusb 
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o ⁊s LitinteLe yd begisdo ytLeu1o to atos otttosqea oT 
cQS Lhags bas .VECL SL vind Fcet Rt yall beuisss0 evad of begolis 
tasbneteb eetsh seeds to tertt edt mo Sand beltitess Vtinbelt BEeL 
benisteve en dotdw mort ,ebasd tod aid kw beed ond 20 abt dourte 





Dee 

bruises, Dr. Billow, the family physician, offered corroborating 
testimony for this act of cruelty, testifying that when he was 
Called in May, 1937, urs. Schultz was very nervous and sick in bed 
and from the conversation and history it appeared that Mrs. sehultz, 
in a moment of hysteria, had wanted to commit suicide and exert 
violence against her husband, He said that Mr, Schulta's head was 
a "little bit seratched," and that he administered morphine by 
hypodermic to quiet Mrs, Schultz, and continued to administer 
sedatives for several days thereafter until the parties stopped 
calling him, 

Ben Friedman, another witness called on behalf of plain=- 
tiff, had known the parties for upward of twenty-five years, and 
had, together with his wife, visited their home many times. Friedman 
testified that Mrs. Schultz indulged in a great deal of argument with 
her husband and that he had a conversation with her about their domese 
tic affairs in Soath Haven, llichigan, in July, 1937. While there, he 
noticed a mark on Mr. Schultz's forehead, and upon inquiry was told 
by Mr, Sehultz that his wife had struck him, 

Ben Schiffman, another witness, testified that he was not 
well acquainted with lirs, Schultz, but had known her husband for about 
ten years; that in March, 1938, he visited Schultz's place of business 
and as he entered the office he heard an argument attended by conside 
erable “hollering and talking real loud;" that as he was about to 
leave the office Mrs. Schultz raised both hands and struck her husband 
in the face, Sam Schultz, plaintiff's brother, testified generally 
that Mr, Sehultz was a good husband, but that his wife did not treat 
him well; that March 25, 1938, she came into Schultz's place of busi- 
ness and asked for some money and refused to leave “until she got the 
money," and struck him over the head; that several weeks later in 
April, 1938, Mrs. Schultz came to the shopand agahasked for money, 
requesting $200, When Mr. Schultz told her that he did not have it 


she “grabbed a piece of iron off the floor and hit him on the 


«fo 

gitistedorios beistto ,aetoteydq yLimet edt .wol{td .w ,eealnrd 

acw of modw tadd gatytitest .ydLowr to tos aldt to? yomttses 

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aew booed a'stimiog .iM dad bise of basdaml rod teategs soneLoty 

Yd enidqzom betetetaimbs ed add bag N bedodoxoe tid elieti" 
weteininhs of beunidaos bas 8d Luxio’ 2m setup ot —— 
—⸗ aeltisq edt [ttc ted tee10dd ape letever 70% A. 

“eam — 

witisig to ‘tfasded mo bellss ia ost ons cstantbo bt PO ia il 
bas ,2ts0y ovit~yJaows ‘to biswqu 10% eetsisq addy “snvorul bad ys 
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bles eaw —— ogy bis baotls co ‘eeu s bostton 
stub Aouide bed etiw eld tests ad Linios ot ¥ 

"tom aaw et dant bobtiveed (eeend by oddone isatiRstee aed ae 
duods tot busdest tod awosl bal dud est laioe aul ag bw bedatsupos “Lew 
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oft  gaentend 


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— 9 it orig 
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ns 


* evarl dou bab ‘onl dauls ted bios st hutiod ti necdit "0088 sats coupe 


Se Me * i 
ett ao ae tad bas noolt eal me mont ‘to 200k, ⸗ dara ie 
9 me Ao au 











nen 


shoulder; that his shoulder was bruised; that when he turned to 
call the police she walked out, and practically ran away." 

@n behalf of defendant and in support of her charges of 
cruelty under the cross bill, Al J. Sehultz testified that he had 
appeared in court under subpoena; that he was a cousin of plaintiff, 
and had been engaged in business with him from 1927 to 1930, and 
from 1932 until 1938; that from his observation Mrs. Schultz did not 
treat her husband “any different than any wife treats her husband, 
He had an awful bad temper, I never saw an exhibition of his temper 
at any of my visits at his home , but saw it once at the shop." He 
had seen Mrs, Schultz in the shop on only one occasion, in March, 
1938. The parties were still living together at the time, iirs, 
Schultz came in and asked for $200, The witness testified that Mr, 
Sehultz "got hot and hit her and she fell down, Abe Altman grabbed 
him and pulled him away from her, She picked herself up and walked 
away. She did not hit him on that occasion. I never saw her in the 
shop again at any time," 

It appeared from evidence adduced upon the hearing that 
Mr, Schultz was on very friendly terms with a Mrs. Ross, mother of 
three children, who was separated from her husband. Mrs. Gussie 
Goldstein, called on behalf of defendant, testified that she had 
known the Schultzes for about ten years, had visited at their home 
and had met them at social functionsand at summer resorts on several 
occasions, and that Mrs, Schultz had always treated her husband with 
consideration, She said that the last time she saw Mr, Schultz was 
in 1938, in South Haven; that he had a woman in his car and when the 
witness inquired what had become of his family he said he had filed 
a bill for divorcee; that in July, 1939, she saw lr, Schultz sitting 
on a bench on the pier with another woman, “with their heads to- 
gether,* 

The older daughter, Esther, likewise appeared in court in 


response to a subpoena, With reference to the occasion in May, 1937, 
she testified that her father and mother had had an argument, and 


ot bose es cesw ted? pbeaiwid esw sebiveds atd stadt i tebivede, 
* vows aet yleottoatg’ Sas qtvo bodlew ee eolieg edt, Liso: 

te aegiads ied te troqque mi bas tasbasted Ye tiesded ab 
_ bat ed dedd Deltiveet stinsoe .b 1A .iftd seor edd sobaw ysLouno, 
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bas ,O¢eL ot YSCL mott mth dit seeniaud at begegae seed bed bas, 
fon blo: siimio® .et motdeveordo etd movt gerd g8EOL Lidaw SECL: morl, 
basdent sod etaoty Stiw yuo asad Jaenottth. yete" basdessl ted. teen: 
aequst ele to smoivididas 16 wee revex I, r98qaed ded Intws ae best, eb, 
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acl vomtd enf ts tecdegod yatvil [lide esow gekiueg edt. ECL 
| aM funds DeLittest easnthw od .008¢ tod boxes baa mt omed atLudoe: 


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eid mk ded wee xewed I —— —“ eer 
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“bait enla tant HekUideed .inebreteh te Maded ao belisa eutedablod 

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ditiw baadeut ted betsetd eyswls ber stimios .etM Jedd bas .amotascog 
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bus ,dnemgis os bad bed todtom bas tedtst ted sand boktiveed ede 





4 

that her mother became hysterical and fell to the floor. Dr. 
Billow was called and administered sedatives to quiet her, She 
testified that she had never seen her mother strike Mir. Schultz 

nor had she seen any bruises on her father at any time. ahe anké 
that the parties got along fairly well together, except for 
occasional arguments such as occur in many households. She said 
that for about a year prior to the separation her father and mother 
were not on speaking terms, but living in the same house and 
eccupying different rooms, “Father did not make an effort to speak 
to her, but she on fifteen or more occasions made efforts to speak 
to him. His response was to leave him alone." She then related 
her observations with reference to lir. Schultz's relationship with 
Mrs. Ross. The witness had first met Mrs. Ross at a ecard party, 
and later saw her at South Haven, where she occupied a cottage 
several miles from that of her mother's, She testified that Mrs. 
Ross was in South Haven from July, 1937, until September of that 
year, and produced three letters written by iirs. Ross to her father, 
dated respectively July 29, 1938, August 5, 1938, and August 12, 
1938. All these letters are of an endearing and intimate character 
and indicate a close relationship between the parties. In one of 
them she says that when evening comes she gets "so lonesome that I 
just don't know what to do with myself. I do hope that maybe you 
will be able to come here & stay for a few days, that would be 
wonderful. * * * J will be waiting for your call Sat. so until 
then I remain your Nettie." In the second letter she says that "I 
found your letter and believe me I was overjoyed, * * * Do not forget 
that I shall wait for you Saturday night. Your Nettie." In the 
third letter she again acknowledges receipt of a letter from lir, 
Schultz, and says that she is glad that she 'phoned him yesterday, 
because she was very restless and felt much better after she had 
talked to him. "You inquire if I would care to stay here another 
week, I do not know what to say, because while it is indeed 


extremely hot, I can not enjoy my stay here beeause I am very 





— 

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rhe *— 





5 
much lonesome for you. However, we will see about that when you 
come out here whether I am to stay here or go home," 

Esther Schultz further testified that she visited the 
cottage of lirs, Ross in the summer of 1937, and later had a conver- 
sation with her father. She told her father that she had asked Mrs, 
Ross to leave him alone, to which Mrs. Ross replied, "I am sorry, 
you better go to your father and talk to him, Don't come and talk 
to me." She said that in the course of this conversation her father 
said that Esther “could not dictate his friends to him," and that he 
was “old enough to choose his friends for himself, and * * * to do 
whatever he pleases," She further said that she had talked to him 
at other times about irs, Rdss, and that he always made the same 
reply. Esther also testified that during this period she had 
occasion to hear from lirs. Ross, who telephoned to the home of 
irs, Schultz on two occasions and asked for Mr, Schultz. Esther's 
testimony was generally to the effect that she loved both her father 
and mother and did everything possible to promote harmony between 
them; that Mr. Schultz was a good husband and father, and that Mrs, 
Sehultz treated him with consideration. 

After the separation lir. Schultz took an apartment in the 
same building where Mrs. Ross lived and Esther testified that she 
frequently saw his automobile parked in front of the house, 

The younger daughter, Miriam, who was attending high 
school at the time of the trial, said that she had never seen her 
mother “raise a hand to strike father," and that although her father 
swore at her mother, she had never seen him strike her, 

Earl Schultz, plaintiff's nephew, testified that he was 
employed at his uncle's office in the summer of 1937 and until 
September, 1938; that he knew Nettie Ross, and had seen her in the 
Place of business in his uncle's company. He had also talked to 
her on the telephone on several occasions and conveyed messages 
from her to iir, Schultz, and mailed letters from him addressed 
to Mrs. Ross, 

After a full hearing the chancellor was of the opinion 


> 


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that the complaint was not sustained by the evidence and said: 

"J believe that she has had more trouble with him than he has 

with her, and when he says he has been a dutiful husband - I am 
inelined to think that you don't get to be a dutiful husband by 
carrying on an affair with another married woman with three child= 
ren, and that seems pretty well established by the evidence, * * * 
I think he has made out a case of separate maintenance, I believe 
$31 a week would be a proper order for support, * * * You may 
present a decree, * * * For the benefit of the record we are basing 
the finding on a $65 a week drawing account, Two Hundred eighty- 
five dollars attorney's fees and costs of this proceeding. * * *," 

As ground for reversal it is urged that the decree for 
separate maintenance is not supported by the evidence; that separate 
maintenance, being a statutory remedy, the defendant must prove that 
she is without fault, and that the court erred in dismissing plain- 
tiff's complaint. While it is fairly clear that the parties were 
incompatible and had frequent arguments over matters which are not 
related to the charges of cruelty, it is undisputed that Mr. Sehultz 
left his wife's home without any explanation and after having apparent~ 
ly planned to leave for some time in advance, Nothing occurred April 
20, 1938, or immediately prior thereto, to justify his leaving, It is 
evident that many of the altercations described by the witnesses 
resulted from his relationship with Mrs. Ross; that lirs. Schultz knew 
all about this affair and rightfully resented it. The chancellor who 
heard the evidence was in a better position to judge of the credie 
bility of the witnesses who testified for the respective parties 
affecting the charges of cruelty and misconduct, and after a careful 
examination of the record we are not disposed to disturb his finding, 

Plaintiff complains as to the allowance made for alimony and 
support of the younger child, The chancellor based this on an income 
of $65 a week, The allowance of attorneys! fees is not questioned, 


The record shows that according to plaintiff's own testimony he drew 


approximately $60 a week, and sometimes as much as $100, from the 


— 
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on 
corporation of which he was a half owner. In addition to that he 
was paid his daily expenses, such as meals and incidental expenses, 
and was provided vith an automobile for his private usé, The business 
operated by plaintiff and his brother deals in waste material in’ which 
daily purcheses are made of approximately $200 to $300, The sales of 
the company run from $6,000 to $10,000 a month, making an annual turn- 
over of about $100,000, fhe plant on which the business is operated 
is owned by the corporation, and consists of two buildings. Defendant, 
on the other hand, has no income whatsoever and is entirely dependent 
upon plaintiff for support and maintenance. ‘She has reached an age in 
life when there is no reasonable expectation that she can go out and 
@arn any money. Her inability to perform any work except household 
duties left her entirely dependent upon the amount awarded by the court. 

Defendant was clearly living separate and apart from her 
husband at the time of $he trial and the chancellor found that it was 
without fault on her part. He was also of opinion that plaintiff's 
complaint was not proved, We find ne convincing reason for dis- 
turbing the findings of the chancellor and the decree should be 
affirmed. It is so ordered, 

DECREE AFFIRMED, 

Seanlan and Sullivan, JJ., concur, 


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41215 


JACK SCHUMAN, 
Appellee, 


) 
) 
) 
Ve ) 
MARY DAUSCH, a widow : 
et al., ) 
Defendants ) 
) 


ON APPEAL OF ISADORE WOLF, 
Appellant. . 








MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT, 

In 1933 Chicago Title & Trust Company filed a bill to 
foreclose a first mortgage, naming as defendants the owner of the 
equity, Isadore Wolf, judgment creditor, and others. While that 
suit was pending Jack Schuman, plaintiff herein, filed a bill to 
foreclose a second mortgage on the same property, also naming as 
defendants the owner of the equity, Isadore Wolf, the judgment 
ereditor and other necessary parties. Wolf thereupon filed a 
motion to strike the second mortgage foreclosure complaint, upon 
the theory that it would cast a hardship upon him and other parties 
to the suit to incur the additional expense of defending two 
proceedings, that the two proceedings constituted a multiplicity 
of suits, and that the second complaint was filed for the purpose 
of harassing him and other defendants. The chancellor denied 
the motion, Wolf elected to stand by his motion and was defaulted 
and subsequently a decree of foreclosure was entered against him 
and others, Wolf appeals from the ruling of the court and contends 
that under par. 172, sec. 48, p. 2420 of chap. 110 (1939 Ill. Rev. 
Stats.) the court should have dismissed the bill because of a prior 
suit pending. 

The rule is well settled that in order to sustain the plea 


of another action pending at law or in equity it is essential that 
it shall appear not only that there is a prior action pending 





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between substantially the same parties, but also that the cause 

or causes of action and the issues involved are substantially 

the same in the two suits, (1 Corpus Juris 61.) The two suits 

in question were different and separate actions, One sought the 

foreclosure of the lien of a first mortgage trust deed, whereas 

the second action was brought to foreclose the lien of an entirely 

different and separate mortgage under a separate instrument, 
Wolf's counsel argues that Schuman, complainant in the 

second suit, could have filed a eross bill in the first foreclosure 

proceeding and secured all the relief that he could hope to obtain 

by a separate suit. While this may be true counsel cites no 

authorities and we know of none which would require Schuman to 

proceed in that manner. In Torpe v, Letts, 177 Ill. App. 288, 

the court said (p. 289); "Whatever the nature of said prior suit, 

we do not understand that Pretzsch could have been required to 

file a cross bill to foreclose his lien." Citing Jones on 


Mortgages, vol. 3, sec. 1445 and Muleahey v, Strauss, 151 Ill. 
70, In Muleahey v, Strauss, 151 111, 70, plaintiff filed a bill 


to foreclose a mortgage to which certain of the defendants filed 

a plea alleging a prior suit pending which had made the holder 

of the mortgage/party defendant, The plea was overruled and upon 
appeal the court said (p. 83): “We are not prepared to hold, that 
the appellee was obliged to assert her rights by such a cross bill, 
rather than by an Original bill," 

None of the cases cited by defendant holdsthat the junior 
mortgagee must file a cross bill when he is made party defendant to 
a first mortgage foreclosure, The cases relied upon by Wolf involved 
generally suits where there was a prior suit pending by either the 
Same plaintiff or some other person in a representative capacity 
acting for plaintiff under the same cause of action, 

We are of opinion that the chancellor properly denied the 
motion to strike, The order of the Superior court is affirmed, 


ORDER APPIRMED, 
Seanlan and Sullivan, JJey concur, 


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—— ————— —— 
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‘sbearibY ts “ek ‘Jules tolreqe® ef to tebo eff Jediate ‘08 notvodt 
CMAN AEC mg s ah eredt tant ybw don ae bd tind 7 





40514 ” 


THE NORTHERN TRUST COMPANY, .»” 
an Illinois 4 a 
as Trustee, et * 

(Plaintiffs); iüreii⸗ 













v — 
EAL FROM CIRCUIT COURT 


OF COOK COUNTY, 


307 1.A.380' 


BANK AND TRUS 
et al. 3 ; 
‘cout 


was 
A. F. GARTZ,.JR., and HERBERT 
P. CRANE, 
(Defendants) Appellants. 


NN a et et 
a ERR it. * 


MR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT. 

A complaint, and amendment thereto, in equity was brought 
by The Northern Trust Company, as trustee (Emily H. Junkin, who was 
Emily Hutchinson Crane, the widow of Richard T, Crane, deceased, 
was subsequently joined as co-plaintiff), against the executors 
of the will of Richard T, Crane, Jr., deceased, and the trustees 
thereunder, and Florence H, Crane, the surviving widow of Richard 
Tt. Crane, Jr., as distributees of his estate, and Charles R, Crane, 
to enforce against them certain obligations assumed by Richard T, 
Crane, Jr., and Charles R. Crane under a contract with mmily Hutchinso 
Crane, dated December 2, 1912, to provide her with an annual income 
of $100,000 during her lifetime, The complaint as amended sought toe 
enforce against defendants Kate C. Gartz, Mary C. Russell, Frances 
C. Lillie, Emily C. Chadbourne and Herbert P, Crane, sisters and 
brother of Richard T, Crane, Jr., and Charles R. Crane, and against 
A. F. Gartz, Jr., as assignee of Kate C. Gartz, certain obligations 
which it is alleged the said sisters and brother had assumed toward 
Emily . Junkin under the terms of a so-called family settlement 
agreement dated June 11, 1914, as supplemented by a trust agreement 
entered into by them with The Northern Trust Company, as trustee, 


under the same date, which was attached to and made a part of the 





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Piece i 8 








2 

family settlement agreement as Exhibit E, The complaint as amended 
also sought personal recovery from the said members of the Crane 
family of existing deficits between the income actually received 

by Emily H. Junkin under the various trusts in question, and the 
amount of her guaranteed income, The complaint as amended also 
asked that the court retain jurisdiction of all the parties to the 
action to determine the amount of future deficits and to enforce 
the collection thereof, Charles R. Crane and the distributees of 
the estate of Richard TI. Crane, Jr., deceased, filed a counterclaim 
in which they claimed that by virtue of the family settlement agree- 
ment and related documents their four sisters and brother Herbert 
had assumed five-sevenths of the liability to Emily H. Junkin for 
the deficits, each severally to the extent of one-seventh thereof; 
that as between the counterclaimants on the one hand, and the four 
sisters and Herbert on the other hand, the primary liability for 
fiveesevenths of the liability for the deficits rested upon the 
said four sisters and Herbert (severally to the extent of 
one=seventh each), and that the counterclaimants had the right to 
compel the said sisters and Herbert to perform their respective 
obligations to Emily H. Junkin in exoneration of the liability 
which Charles R, Crane and Richard T. Crane, Jr., had initially 
assumed to her, Both plaintiffs and counterclaimants claimed that 
it was not necessary, in order that the liability of the four sisters 
and Herbert be enforced, that the deficits be first paid to Mrs, 
Junkin either by Charles R. Crane or by the distributees of the 
estate of Richard T, Crane, Jre, deceased; that all of the parties 
in interest were before the court and the court had full jurisdice 
tion to determine and adjudicate their respective obligations, 

Both plaintiffs and counterclaimants also claimed that the reduction 
of the guaranteed income of Mrs, Junkin from $100,000 to $385,000 
inured solely to the benefit of Charles R. Crane and Richard T, 
Crane, Jr., and his distributees (to the extent of one-half each) 


o 


4⸗ 
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etis bebnoms es tatslques oft eabodtl bbbditibtans Sod — ——— 

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eot0lne o¢ bus aflotied out? to —E ants cobtmreteh ot noltes 

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sot aise. .H yilal of Wilidart eit to addaevee-svit bemvazs badd 

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te daedxo odd of yLlst9vee) drodusll bas ereveks WT Stee 

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: ovivooqeet utesdd mxotiog of fisdreti bas exetete Btse end Lego 
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visitng bed ..tt yeast) .T brcidid bus Se ee 
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azedete wot odd to wWiltdetl ed} sedt “tobto Mt yas sa tom ‘esw tt 
att of bieq detht of attotieb édd tadd .Beore'tne od dreds bits 

cult to ‘seodudiaalb edd vw 16 ometd if eeftedd yd tedd26° birt 
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noktoubor ‘ould datid pemtsfo ozis ‘pinembsloredapos. bas eMibiatele sto 
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"git baadott bas ener) 4k eeluastd Yo “gkveried Sid OF ‘YtoToe” Bowkins 
“(doo © —— te daodxe os ‘o) ——— "(ons 


ie oO bodomtis 2 aw dekh week Mente “xen 
z 











— 

and that the respective liabilities of the four sisters and Herbert 
should be enforced upon the basis of $100,000. Both plaintiffs 
and cross-complainants also claimed that the jurisdiction of the 
Probate court of Cook county, in which the administration of the 
estate of Richard T, Crane, Jr., was pending, was inadequate for 
the determination and adjustment of the rights and interests of 
the several parties to the action and that therefore it was 
necessary to invoke the jurisdiction of a court of equity for that 
purpose. 

The decree finds that each of the defendant members of 
the Crane family, save Kate C. Gartz and Herbert P. Crane, has fully 
discharged his or her obligation under the so-called family settle=- 
ment agreement and the record shows they have abided by the decree 
entered in this cause, A. i. Gartz, Ire, and Herbert P, Crane have 
filed a joint appeal, 

The essential facts in the case are not controverted and 
they are stated clearly ay ere Pe order in the findings of the 
court, To understand the contentions raised by appellants it is 
necessary to state the trial court's findings of fact and the 
decretal part of the decree. They are as follows: 

"1. That on October 13, 1903, Richard T, Crane, * * * 
as party of the first part, and Emily Hutchinson (now Emily H. 
Junkin, one of the plaintiffs herein), party of the second part, 
made * * * a certain Marriage Settlement Agreement, in pursuance 
of which ssid * * * [Crane] gave * * * and conveyed to said * * * 
[Hutchinson] certain bonds of the Atchison, Topeka & Santa Fe 
Railroad Company, of the par value of $115,000, bearing interest 
%* * #, as and for her absolute estate and property, and in addition 
thereto assigned, transferred and conveyed to The Northern Trust 
Company, as Trustee, certain other securities therein described, 


to have, hold, manage, control and care for and collect the income 


therefrom, and to pay the net income therefrom as received to said 


ES 


* 
Ce el 


7 


ta * 
+ Sag * 


—E bis atotete wot old to eelsiftdstl viene out dad bas 
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adit to nolisiseintubs edd dokdw at .ydeuroo wosd te ↄato⸗ etsdox% 
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sass x02 yiispe to tawoo 6 to noktothalwut —* exovait ot Visee soon 


to exodmen dasbnoteb ent te dogs tact ebat? cor008 ott 
yiiet end eonstd .f Srodxell bas stusd 29 etal ove tite 





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setoeb ond yd bebidas eve yedt swore brooex ould brs toousotas soem, 
evad ecis ⁊d .1 diedt0 bus ..cb gudued .1 LA oauso & brig at betedas 


4 


Loogie, tnteb. #., bakes, 
bus besaevettseo Jon ots caso ont ab egoet al Istiaeces eat ene? Shia 
ed to egatbmtt edd ait rebt0 Lsidmoupee lous Maelo, hetsta ots. sett, 
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tewolfol es sus youll eoxoeb end Yo 2184, —— 
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oli Lin wom) ftocaidot aH er bas it dextt ould ry 
~jtaq baosea ond ‘to Ysisg (atoxedt eTibialelg ot 10 oao Ait’ | 

— Al ,tmesioetgA jnomelidoe ogetata Aistzeo 6 * * * A 
& * * Bisse of beyovios fas * * * vay — — 


“ef stat 3 axleqo? hoz isioth edd te buoe ated aoo — — —— 
geotesat gitised ,000,¢L1% to exiLav 2 ald to eanod — 


——— 


motithba ak bus . gYiteqotq brs etateo ofuLoeds aed tot baa ag .* * * 









ijniasg avou. 
taux? aieddi0ll eff of beysvnos ‘baa boroteasxt ebompizes ¢ Do 
— aletedt eoltiuwose cosldo alenraoo eoodeutt as a 


m Bie O — ae race 
enoont orld sooLlos bas rot e169 bas Lownon sous ei wh, 4 Ae. 


bise ot bovioses ae ——— emoont tom ont — ot bas emovioveds 








Po 
# * * [Crane] during his life, and after his death to pay the same 
to said * * * [Hutchinson] quarterly, during her life, provided she 
should survive said * * * [Crane], That * * * pursuant to the 
intention of said parties, as in said agreement expressed, said 
marriage was consummated and The Northern Trust Company, as such 
Trustee, assumed and took control and management of said securities 
so transferred to it, as aforesaid, and paid the net income therefrom 
to * * * [Crane] during his lifetime, and since his death has paid 
the same to * * * Emily H. Junkin * * *, 

"2, That on January 3, 1912, the said Richard T, Crane 
% * * died, leaving * * * his widow, him surviving, and on December 
2, 1912, the defendants Charles R. Crane and Richard T. Crane, Jr., 
sons of said party of the first part, for good and valuable consid- 
erations therein * * * set forth, entered into an agreement with 
said Emily Hutchinson Crane * * * in and by which they severally 
agreed with * * * [her] that from the net income derived from said 
securities so given and transferred to her by * * * Crane, Sr., as 
aforesaid, and from said securities so transferred and delivered to 
the Northern Trust Company, as Trustee, as aforesaid, together with 
the income from 5,000 shares of the capital stock of Crane Company, 
to be by them severally (each 2506 shares thereof) transferred to 
and deposited with The Northern Trust Company as such Trustee (and 
which were thereupon issued and transferred to The Northern Trust 
Company as such Trustee), she * * * should receive an annual net 
income, without any deduction whatsoever, of the aggregate sum of 
$100,000 during her lifetime. In and by said Agreement * * * Charles 
R. Crane and Richard T. Crane, Jr., further expressly agreed with 
Emily H. Crane (* * * now Emily H. Junkin) that in case the net 
income received by The Northern Trust Company, as such Trustee, and 
paid to her under said Marriage Sattivuaat favacasnt —— 2, 
1912, including the net income derived from said securities so given 
to her by * * * Crane, Sr., as aforesaid, should in any year during 
her life fall short of said aggregate sum of $100,000, then ke % 


CrP 


— 
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bise ,bezeeiqxe Jnomeotge Bhse at as (gtoitteg hise to aortae⸗ai 
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motiotomy emoont ten edd blegq bas ,biseotels as tt of bevzoteastd 02 

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teual asesjioK edT of boris temeat baw. boweat aoduoꝝ d_oney dotstw 
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ton, exif ses af tant (atlas .1 vite won * * #) exter # sea 








bus ,oedeui? dove eas ,yasqmod Jani? atesds io} ont Yd bev. Xd._hev. Oe, 
asuss 134 blse t9fmy bas — — * 
odao osd to! SaomelIjec sgelite Biase. “tebay ‘aap 





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ee 
gaiwb isey yas at bivoce sbinectots &s hts 8 one) * — e⸗ 





* *x * port 000.0018 to ame ——— bisa to duode List ettl sedi * 


—— 
Charles R. Crane and Richard T, Crane, Jr., would, on demand, pay 
to Emily H, Crane, or to her order, one-half of such deficiency, 

"That The Northern Trust Company thereupon accepted said 
5,000 shares of capital stock of Crane Company, as such Trustee, 
and agreed to hold the same, together with the securities so held 
by it under said Marriage Settlement Agreement * * *, and thereupon 
one of the originals of said Agreement last mentioned was at the 
same time deposited with The Northern Trust Company, as such Trustee, 
for the purpose of enabling it to comply with the terms thereof, 

"Said Agreement of December 2, 1912, expressly provided 
that the dividends and income derived from said 5,000 shares of 
stock The Northern Trust Company, as Trustee, should first pay its 
reasonable charges for its services in acting as Trustee under said 
Agreement and in collecting and paying over the income from said 
shares, and also its reasonable charges for acting as Trustee under 
said Marriage Settlement Agreement from the date of said Agreement 
of December 2, 1912, and for collecting and paying over the income 
to said second party pursuant to said Marriage Settlement Agreement, 
and also all taxes, assessments and govermmental charges of every 
kind which might be levied, assessed or imposed at any time there» 
after, during the life of said second party, upon the trust property 
held by said Trustee under said Agreement, and upon the trust property 
held under said Marriage Settlement Agreement, and upon said bonds of 
the Atchison, Topeka and Santa Fe Railroad Company; and should pay to 
said second party quartereyearly so long as she should live so much 
of said dividends and income as should be required to make her net 
annual income, including the net amount of income she should receive 
under said Marriage Settlement Agreement and from said Atchison * * * 
Bonds the sum of $100,000 per year, 

"That on June 11, 1914, Charles R. Crane and Richard T, 
Crane, Jr., together with defendants, Kate C. Gartz, Mary C. Russell, 
Frances C, Lillie and Emily €. Chadbourne, their sisters, and Herbert 
P, Crane, their brother, for good considerations therein named, 


entered into an agreement commonly known and referred to by them 


Ce 
— 
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gtaaelottos dowe to iLsti-eno ,tebto ted of 10 oni ad oH vihast oo 
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esetantl siowe es Xiequod oust? to Asote Latiqss te eorasle 000.8 
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stooteny emrsy erit diiw yiqmeo ot st aaitidasne to se oq uy odd 202 
bebivosg YLezomgxe Stel 8 tedmeost to inewoeTgh bie” * 
to eetade 000,2 bisa moth bevized smeont das ebaobivib ets tadt 
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biae sobs sotanf es gitios mt aeotviee ast ae ‘wegtasto oldsnonses 
biee wort omoont ot tevo gniysq bas gatsoettoo at bas a By 
⁊T obau — 2s gutaos tot veg taro eldanozsez edt outs “bas qe 2* 
aeno oxg⸗ Sise to eteb oft mowt deem ouga snomeLsdoa ogatviall bine 
esoont wat tevo satvaq bas gattoeifeo tot bein ‘sSler é sedueoed i to 
aceaosx dnomol sez ogslrisl bisa of taswe uy weg broo9e bee ‘of 
_ yreve Yo eegrado Isdaemisves bas edtieme aces eeoxad “ftd cals bas 
~orxecld outs ys ts bevoget 10 boeeeaas (betver od dada tar do bdw bab 
YW reqoug tena oct — — bnooos bise to ottt ‘exit “pata — 
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to abaod bkse aoau bas aouoera⸗ Sorome {3d oc or⸗ teren bee cobay bled 
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*2* noe biog. bise nowt Sain emo oz jmemosstee egsitzalt ‘bise tobi 
ts8y 194 00,0018 to awe * edit cbnod 
ee oreaubaa as nar) of A aoLuad® eter tt ent 0 tact” * * 
Aterenm visi ita) 30 oda% e2saabnoteb td tw aedd ogo3 — 5 


— 
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+ ee vd tem OF 

. bomen ateredd enotjatob tance boog m0 ‘ctedvord hed —* = 

ome Liat ——— 
mods yd ot — bas worn —— jnemeetgs as odti⸗. bewstae 





* 


6 

as the 'Family Settlement Agreement,’ by the terms of which Charles 
R, Grane and Richard f, Crane, Jr., agreed each with the other, to 
buy or sell from or to such other, or to cause or permit the said 
Crane Company to buy, each his interest in said Crane Company, and 
each of the said sisters and Herbert FP. Crane, brother of Charles 
R. Crane and Richard IT, Crane, Jr., therein and thereby, severally 
and not jointly, expressly agreed to pay, om demand, one-seventh of 
all money which might become due and payable under the Agreement 

of December 2, 1912, 

"In and by said Family Settlement Agreement it was further 
expressly agreed by and between the parties thereto, including Kate 
C. Gartz, Frances C. Lillie, Wary C, Russell, Emily C. Chadbourne, 
and Herbert P. Crane, that for the purpose of facilitating the 
collection of the aforesaid payments so agreed to be made by the 
parties to said Agreement, other than Charles R, Crane and Richard 
fT, Crane, Jr., * * * Kate C. Gartz, Frances C. Lillie, Mary C. 
Russell, Herbert P. Crane, Charles R. Crane and Richard T, Crane, 
Jr., individually, and Charles Rh. Crane and Richard T. Crane, Jre, 
as Trustees under a Trust Agreement to be executed by them and Emily 
C, Chadbourne, together with said Emily C. Chadbourne, should execute 
ah agrecment with The Northern Trust Company as Trustee, which Agree- 
ment should be in the form as set out in Exhibit E attached thereto — 
and thereby made a part of said Family Settlement Agreement, Said 
Agreement, so referred to as Exhibit BE, as aforesaid, was thereupon 
duly executed by all of the parties to the Pamily Settlement Agreee 
ment and by Charles R. Crane and Richard Tf. Crane, Jr., as Trustees 
under said Trust Agreement with Emily C. Chadbourne, and by The 
Northern Trust Company as Trustee thereunder, Said last mentioned 
agreement provided for the re-transfer of the said 5,000 shares of 
steck of Crane Company so theretofore deposited by them with The 
Northern Trust Company as Trustee, as provided by said Agreement 


of December 2, 1912, to Charles R. Crane and Richard 1, Crane, Jre, 


F 


— 
* 


— — * ~~ 
n Of. a ¢ et ae BR force 


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2 


* * 
9221 fy, ww 


27 
respectively, 2,500 shares to each, and that in lieu thereof each 
of the said parties to said Family Settlement Agreement, except the 
Seller thereunder, should deposit with The Northern Trust Company 
as such Trustee, 1,000 shares of the Crane Company stock, and that 
said Seller should deposit certain other securities therein described, 

“Charles R. Crane became the Seller and Richard T. Crane, 
J¢., became the Buyer under the so-called Family Settlement Agreement, 
and thereupon the said 5,000 shares of Crane Company stock were so — 
re-transferred to Charles R, Crane and Richard f. Crane, respectively, 
2,500 shares to each, and each of said parties to said agreement, 
except Cherles R, Crane, deposited with The Northern Trust Company, 
as such Trustee, in accordance with the provisions of said Agreement 
hereinabove referred to as Exhibit E in said Family Settlement Agree= 
ment mentioned, the securities so agreed to be by them respectively 
deposited, 1,000 shares of Crane Company stock, and Charles R. Crane 
* * * thereupon deposited with The Northern Trust Company, as such 
Trustee, certain other securities as therein provided, 

"Said Trust Agreement herein and in said Family Settlement 
Agreement referred to as Exhibit E, as aforesaid, expressly provided 
that The Northern Trust Company, as Trustee, should keep separate 
accounts with each of the parties thereto, collect the dividends from 
each 1,000 shares of stock transferred by the euvered parties who 
should have transferred stock to The Northern Trust Company under 
Said agreement, and pay from the dividends received from each 1,000 
shares one=seventh of all payments which should be made in accordance 
with the provisions of said Agreement of December 2, 1912, * * * and 
one~seventh of all moneys which Charles R. Crane and Richard T. Crane, 
Jr., covenanted by said Agreement of December 2, 1912 to pay, * * * 
the remainder, if any, of such dividends to be paid to the respective 
parties making such deposits, That in addition thereto The Northern 
Trust Company should collect all interest which should be paid on 
the securities so deposited by Charles R. Crane, and pay therefrom 
one=-seventh of all payments which should be made in accordance with 


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— 
said Agreement of December 2, 1912, as hereinbefore stated, and 
one=seventh of all moneys which Charles R. Crane and Richard fT. Crane, 
Jr., covenanted in said Agreement of December 2, 1912 to pay, the 
remainder of such interest, if any, to be paid to Charles R. Crane, 
Said Trust Agreement also expressly provided that nothing therein 
contained should be construed to release Charles R. Crane and Richard 
fT. Crane, Jr., in any way from any obligations which they have or 
have had under said Agreement of December 2, 1912, and that nothing 
therein contained shall be construed to change in any way any of the 
rights, obligations or duties of the parties to said Agreement of 
December 2, 1912, to each other. That by reason thereof Charles Re | 
Crane and Richard T. Crane, Jr., and their respective heirs, executors, 
administrators, representatives and assigns remained primarily liable, 
as between themselves and Emily H,. Junkin for any deficit which might 
thereafter arise between the income derived from said securities and 
said guaranteed annuity of $100,000, each to the extent of one-half 
thereof, | 

“And the Court further finds that the Trust Agreement dated 
June 11, 1914, above and in said Family Settlement Agreement referred 
to, and the securities therein mentioned and thereafter so deposited 
with The Northern Trust Company, as Trustee, as aforesaid, were in= 
tended as and in fact constituted collateral security for the several 
undertakings and agreements of the respective members of said family, 
hereinabove mentioned, by the terms of which each of the said members 
of said family agreed to pay, on demand, oneeseventh of all money which 
might become due and payable under said Agreement of December 2, 1912, 

"In and by said Family Settlement Agreement it was further 
expressly covenanted and agreed by Kate C. Gartz, Frances C. Lillie, 
Mary C, Russell, Emily C, Chadbourne and Herbert P, Crane that in 
case the dividends and income received by The Northern Trust Compahy, 
as Trustee, from the shares of stock and the securities so agreed to 
be and which were deposited with The Northern Trust Company, as 


Trustee, as aforesaid, should be insufficient to pay all moneys due 


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-J= 
and payable under the Agreement of December 2, 1912, then and 

in such case that they, said sisters and brother of Charles R. 

and Richard T. Crane, Jr., would each pay to the ‘high bidder, '* 

on demand, one=-seventh of any sum which such "high bidder’ might 

be compelled to pay to The Northern Trust Company, as Trustee, 

in order that he might fully perform the terms of said Agreement 

of December 2, 1912, on his part to be performed, 

"Said Family Settlement Agreement further provided that 
thereupon such ‘higher bidder agreed to indemnify and hold the 
tSeller' harmless from any liability under said Agreement of 
December 2, 1912, beyond the liability which the ‘Seller’ had under 
said Family Settlement Agreement of depositing the securities therein 
provided for and of paying the differenee between the income received 
therefrom and one=-seventh of all sums which might be due and payable 
under said Agreement of December 2, 1912. 

"By reason of the provision in said Family Settlement 
Agreement * * * Richard T, Crane, Jr., who become the buyer there- 
under, became primarily liable as between himself and Charles R. 
Crane for six-sevenths of any deficit that might esrise thereafter 
under the said Agreement of December 2, 1912, and by reason of the 
other provisions in said Family Settlement Agreement * * * each 
of the other parties to said Agreement, viz., Kate C, Gartz, 

Frances C. Lillie, Emily C. Chadbourne, Mary C, Russell and 
Herbert P, Crane became primarily liable as between themselves 

and Charles R, Crane and Richard T. Crane, Jr. for five-sevenths of 
any deficit that might arise thereafter under said Agreement of December 
2, 1912, each to the extent of oneeseventh of any such deficit, and 
Kate C, Gartz, Frances C, Lillie, Emily C. Chadbourne, Mary 

C. Russell, and Herbert P. Crane further became liable to 

Emily H, Junkin and to The Northern Trust Company as Trustee, 

each for one-seventh of such deficit, and also to Richard 

T. Crane, Jr., each to the extent of one=-seventh of such 

deficit, and Charles R, Crane remained liable as between himself 
and his said sisters and his brother, Herbert P, Crane, for a like 


— 


—— —— 


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i= 






— 
one=-seventh of such deficit; provided, that upon payment by Kate 
C. Gartz, Frances C, Lillie, Emily C. Chadbourne, Mary C, Russell, 
and Herbert P, Crane, or any of them, of their respective one= 
seventh portions of any such deficit to Emily H, Junkin, or to 
The Northern Trust Company as Trustee, all liability to Charles 
R, Crane or to Richard T. Crane, Jr. on account of the one-seventh 
portion or portions of such deficit so paid, and all liability of 
Charles R, Crane and Richard T. Crane, Jr, to Emily H. Junkin or 
fhe Northern Trust Company, as Trustee, on account of the one=-seventh 
portion or portions of sueh deficit so paid, should be deemed to 
have been satisfied and discharged, 

"4, The Court further finds that on June 2, 1922, for 
good considerations by Emily H. Junkin received from Charles R. 
Crane and Richard Tf, Crane, Jr., their obligation under the Agreement 
of December 2, 1912, to pay to Emily H. Junkin during her lifetime 
the sum therein mentioned, was reduced from the sum of $100,000, as 
therein provided, to the sum of $85,000 per annum, and in accordance 
therewith Emily H, Junkin thereupon, on said June 2, 1922, duly 
notified The Northern Trust Company as Trustee that the said amount 
of $100,000, payable to her annually under said Agreement dated 
December 2, 1912, had been reduced by the amount of $15,000 in each 
year, one-half of which reduction, viz., $7,500, was to be deducted 
in each year from the amount payable to her, Emily H. Junkin, from 
the income from securities deposited with said Trustee by Charles 
R. Crane and Richard T, Crane, Jr., respectively; and therein and 
thereby expressly authorized The Northern Trust Company, as such 
Trustee, to make said deduction from the date of said agreement 
last mentioned, from the amount which otherwise would be payable to 
her, Emily H. Junkin, in each year, from the income from the 
securities deposited with said Trustee by Charles R. Crane and 
Richard T, Crane, Jr., respectively, 

"and the Court finds that in accordanee with said Agreement 
of June 2, 1922, the obligation of Charles R. Crane and Richard T, 


RE 
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rodtornd etd bme axotete bhen abe eae 


~lle 

Crane, Jr, to Emily &, Junkin under said Agreement of December 2, 
1912, * * * was reduced to a guaranteed annuity of $85,000 per 
annum, for onewhalf of which guaranteed annuity each of them ree 
mained severally liable, but that said Agreement of Jume 2, 1922, 
did not affect the liability of each of the sisters and Herbert 
P, Crane * * * under said Family Settlement Agreement, and they, 
said sisters and brother, remained liable and are still severally 
liable each for oneeseventh of any deficit in the net income from 
said securities under said sum of $100,000 per annum, 

"5, The Court further finds that since June 11, 1914, 
pursuant to the provisions of said Trust Agreement so made and 
entered inte with it, and hereinafter referred to as Exhibit E, 
The Northern Trust Company, as Trustee as aforesaid, has kept 
separate accounts with each of the parties to said Family Settlement 
Agreement, and that until the execution of said Agreement of June 
2, 1922, hereinbefore mentioned, said accounts were kept by said 
Trustee on the basis of the several liability of each of the 
parties to said Family Settlement Agreement for one-seventh of 
any deficit which might arise under said Agreement of December 2, 
1912, That subsequent to the execution of said contract of June 
2, 1922, by and between Charles R, Crane and Richard I, Crane, Jre, 
of the one part, and Emily H. Junkin, of the other part, said 
Trustee has properly kept said accounts upon the basis of the 
obligation of Charles R. Crane and Richard T. Crane, Jr. to pay 
or cause to be paid to Emily H. Junkin the sum of $85,000 per 
annum, instead of $100,000 per annum, snd that in accordance with 
the direction of Emily H, Junkin to said Trustee, each of said 
parties to sald Agreement of June 2, 1922, to wit, Charles R. 
Crane and Richard T, Crane, Jr., have been credited in said 
accounts, out of the income from the securities so theretofare 
deposited with it, as aforesaid, each with the sum of $7,500 in 
each year from the amount payable to said Emily H. Junkin from 
the income from the securities deposited with said Trustee by 


RE 


eS Tedmese to dmomboagé hiee webi mete .M y¥Liott of Jt .enstd 
yoq 000,083 to ylmmis beetastety 5° ot beouber esw * #® “orer 


wot Medd to dose yt Lins boedmstony Aoldw to’ tisteoko YoY <ummns 
eSSOL QS emet Yo suomeonga Bitee tal} ee yoldail ytesovee beaten 
Sredx9H Has erosete ed¥ to dose Yo YSLLidelT oF tootts don bib 

evoud Bay .tnemoorgé trowelise8 yTltet bisa tba ¥ * ® ectd .& 
yutlsrevee Ifive oxs hus ofdett bomtamoy ,teddoxrd bua erodes bisa’ 
mov? emosnt ton oil? at stolteb yas Yo Mneveeeno tot doko elastt 
items ror 000.0018 to ame bise tobay sels iuvoee ‘buat 

ler (it om conte ¢ait abart doritiet Hwod edt Wee 

| fuse sbom os tuomeergk Jeux? Bise Yo eworeivorg edd oF taabetig 
| A dhdtiixt 20 of bovre'tes roFtantoted has Jt dttw tat beresne 


‘$qst eotl ~biseovote es sotewtT to pymsquod JeurT — sift ’ 





| | Sremelite¢ YLimst bise of etd xsq eut ‘to dose ashy edaw 
Bt “Ro detemeetgA Hise to motynosxe sud Theme Fait bas \Jasmostyi” 
bisa ql dqext otow evamovos Bise ybonobsnem ototedabored seer 4S 
oid ‘to Mono to YtElidstl Levewee sift to etesd ond no codebet 

to dinovee-ono tot dnemoergA Jmomeltted ULtust bkse of eebtiog 

<S tedmesed ‘to dmomeotyé Bice robaw setts diigta dolfly Proriob yas" 
ectit to doextaos bisa Yo motswoeks “ele od Fnolpeadine Fade “Ser” 
‘get eaet0 .T Stefott bis ens) .fi sefteild noovded Bas ¢d seers 





| efit To atasd ott aoqy edmuodos Bkaw Saou es ee ve ‘oat * 
rer nae er ⏑ ⏑ yy 





“bkse (iteq todd et te’ gubtiivt F Ubet bas .taeq “ono bad” 40" 


| oq 000,268 26 mba ond miaawt .woytbas Od Bisg ed of eaves xd 


tittw sonsbroves ai ted? Bad ynmmms seq 000,008 to baedem! (aman 
bise to dose yootemst bisa of aliases ULim yo motdootth oft 

aot agetde tie bo" (Sset E Sawt Yo" sabimeigA ‘piste 8s eoituag™ 
bise mt bedtbovo moed svatl ,.tt jac) JT Bateort hn omatd- 
omlosoredd 02 eottimose oii Rov? emobit aiff 4b dive GEmbOUBE 
mt O02 ,%¢ to mua odd Attw Hose \btadorots es ot dtbw bos teogeb 
gown absiet, JH Yin bkoe oF oldsysq tatoms ott mort rey done 
Me osteni? bise ddlw bed teoget aeté busooa edd int * 





eT 


·12 
Charles R. Crane and Nichard T, Crane, Jr., respectively, on 
account of their several obligations as aforessid, 

“That said Trustee, since the execution of the said Family 
Settlement Agreement of June 11, 1914, and the said Trust Agreement 
made in pursuance of, has rendered quarterly statements of account 
to each of the parties to said Agreements as therein provided, and 
upon the basis aforesaid, respectively, and that prior to the 
filing of the complaint in this cause and to the filing of the 
answers herein of the defendants, 4. F. Gartz, Jr. and Herbert P, 
Crane, no objection to the basis of the liability of the several 
parties to ssid Agreements, as shown by said accounts so rendered 
by said Trustee has ever been made by defendants, Kate C, Gartz, 
Frances C. Lillie, Mary C. Russell, Emily C. Chadbourne and Herbert 
P, Crane, or any of them, That all of said defendants last named 
are of lawful age and fully competent; that by the accounts se 
rendered to them by said Trustee they were fully advised of the 
form, method and basis of stating said accounts, and that by their 
acts and conduct seid defendants last above named are estopped to 
claim the benefit of any reduction in the amount for which they 
are severally liable because and by reason of the said contract 
of Jume 2, 1922, 

"The Court finds that the reasonable charges of The 
Northern Trust Company for acting as such Trustee, as contemplated 
im and by said Agreements of October 13, 1903, December 2, 1912, 
and Jume 11, 1914, and the Trust Agreements pursuant thereto, were 
the sums shown by said quarterly statements of account and by the 
account of said Trustee heretofore filed herein, to wit: Two and 
one-half per cent. per annum upon the income from the securities 
deposited under and pursuant to said Marriage Settlement Agreement 
of October 13, 1903; one per cent. per annum upon the income from 
the securities deposited under and pursuant to said Agreements of 
December 2, 1912, and June 11, 1914, by Kate C. Gartz, Frances C, 
Lillie, Mary Cc. Russell, fmily C, Chadbourne, Herbert P. Crane and 





* 
0 yylovisooqeet ,.1t yonst) .T btedsii bas ociaad A ‘woftado 
bhagetore 22 enotsagtido Laveves tledd Yo Sntiodos 

Ylimet Bise sey to molivoexs add conte ,66taniT Bisa Fact” * 
Suemsetga tevxY bioe odd haw ALOE Lf enw to dnomeomys dnomorlsses 
japeoss ‘to aisemstate YLueyuatp boiebaet aad , To porisue thq ‘Rt obama 
fers ,bebtvoxg mtereds as eiaomeogA Bind od eobiteq odd to aoas of 
ai} of tobig tad Bae yulevibvoecuet ,biscerote efead ond moqu 
ot} Yo amtift eft oF bine eis ehtd af datefqmos edd Yo yaEtts 
. Saodeol ks .1t ,attod .t 14 (tdisbasteb aff Yo ntozéd etowens 
istever off Lo YWlitdstl eis to etead odd o¢ MOLISe¢do on .ometd 
Betabsmet oz etateoos Bios Yd awerle ws yadmemistgé Biase of bs ttteq 
qudte® 0 é¢o% ,adaabaeted yd ebum mood weve ead o6sdial Bhia ya 


tredtok eis estivedh al) a” elie aiieees® .o ¥ : i iol J Pgs * et 


beuca Jest sdasbactob tse to Ets YodT meds Yo Ya to .snstd ,4 
of agnivotes eft yd fadt piaoteqmoo ¢Lint bas eye Letwal to exe 
add to beatvbs vfs onow Youd sedenrT bisa yo modt oF Setebrion 
‘ahodt yd Fail? Bre yedawosse bEwe gabtdde to dkedd fas SOddom (ator 
of heqqedes ors Hema ovods tasl admabueted Bise Youbsdo bas ets 
Pe dotdw to? Sasioms ofd at aotioubor yas to fFtomed odd mthalo 
““Poottaes bisa edd ‘to modse yd baa’ stussod ¢ sfdatl — tee 
“ @HT "to aeytads ofdsavedd+ ont fad abatt ‘ald? ont? 

bediiquotnos 2s oesenel dowe 2s gab¥on to? yteqmod veut aieds ion 
SLQL R ‘sédmoved ",£09f 4ff todoso0 to “esmomoorga bse Yd Bas at 
ew yototady taawe ug atasmoetgs ‘PestT edd bas hier Lt Sant ‘bas 
“oat Yd bas Stu0s0s Yo etitededate yLiedtadp Biss ee anvostie one 

hes owt idtw ot yatovedt HELI sdotototed sedemtl bisa “%c 











edit hiWoee odd mot satvodt ‘odd Hoge ims teq’ .da89 doq “Lad 
jnomostgh tremoelste2 eystiasM bidé of Gnawauw baa ishas bedtecgeb 
wort eoont edt moqy mmins 194 sitive OH ono {EORE EI tedda0 0 
ssiooe ont 





Yo etnemeerg; bkse of Seauewg bas tobu betieéqes ed. 
.0 eeontstt .xhasd .9 ofa yd Aref IL onmt bas ‘StOL QS rode: 





bas onst? .4 trodreH yontodball? .9 Vike? (fiowent’.o ——— 


-1 

Richard T. Crane, Jr.3 one per cent. per annum upon the income from 
the securities deposited under said Agreements by Charles R. Crane 

up to March 18, 1924, and thereafter two and onewhalf per cent, per 
annum upon the income from said securities so deposited by Charles 

R. Crane. 

"6, The Court further finds that by the terms and by 
reason of the said Agreement of June 11, 1914, hereinabove referred 
to as The Family Settlement Agreement, and said Trust Agreement 
hereinabove and in said Family Settlement Agrecment referred toe as 
Exhibit E, so made with The Northern Trust Company in pursuance of 
sald Family Settlement Agreement, as aforesaid, The Northern Trust 
Company became a Trustee for and on behalf of each of the parties 
to said agreement for the collection and application of the income 
from said securities so deposited with it as aforesaid, and that 
it became and was the duty of The Northern Trust Company, as such 
Trustee, to collect and apply the income from said securities so 
held by it as aforesaid, and, in case of a deficiency in the income 
therefrom, to collect from the parties to said Family Settlement 
Agreement any deficiency which might or should arise between the 
amounts for which they became and were severally liable as aforesaid, 
and their respective shares of the income received from the securities 
so deposited by them respectively, as aforesaid; that by the express 
terms both of said Family Settlement Agreement, so-called, and said 
Trust Agreement made in pursuance thereof and bearing even date 
therewith, the same were made binding upon and to inure to the 
benefit of the parties thereto and their respective heirs, executors, 
administrators and assigns. 

"7, The Court further finds that The Northern Trust 
Company accepted the trusts in and by said agreement of December 2, 
1912, and said trust agreement of June 11, 1914, imposed upon it, 
and thereafter continued to collect the income from said securities 


or the substitutes therefor so transferred to and held by it under 


iit l= 
MOTI emoont eddy aeqy mots 19g sme Taq emo 4.10 genset) .T SusdolA 
eisid .f selisid yd admensengA Sise w9ohny bedieogsb soldltuwoes old 
geq .«tuso xeq ‘tael-sno bus ows isdtcoteds bas ghSCi ,81 doe ot qu 
 ee@iisdd Yd Sedteoqeh os aeliiuucee Sise movl emoomt esit moqs mains 
— sOret0 A 
Wd bas antred ods yd dedd ebakt veci ⸗aud ofl, o 
boviste: evodsniers am to tneusetgaA biaz edd to noeset 
¢mence1ga tan bise bus ydmemeerg snomeLdte2 yLilas't ef? ee od 

as of boutetor SapmoeigéA daomeliiea yliewt biee ut bus evedantouesd 

tO sonevemg al Yocqmed Jewtl maeddtoli ent di lw sham oe 48 Jsididxd 
venal aveigiok eff .bisze10ts ag ,inomoigA Jmeme tie ylimef bise 
zebgisq ed to dose to Masied ao bas 20? setanxl s emsood Yusqmel 
euooni ed to molscotiqas has moisoetLos esd tod dnemeesye btee: 0% 
 dadt bas gbiseerots es 3i diiw beticoqeh oe pets lavose, Slee) mo7t 
dome 28 ,Yfisqmol Jeni! ateddxol od? to yuh edd ecw bus emased tt 

oz eetitwose bise wort smoont ond yLqus bas JoeLloo ed 4eetauxT 
emoont sdv at yonolotieb « to ease at ,has ,dbhesotots aa ¢L yd died 

» taemelitec yLiast bise ef seltisq ont mort toolies of ,mortetedt 
ods aeawted eetis Bisode 10 Jogia doldw yousloited yas Jmemeeigé 
,biseetote as eldell yLlevevee etew bes emsood yess dotdw ret, edavoms 
asistuyose eid mort bevieset smoont odd to werede evijoegeet thedt bas 
eastqxe ong yd gad? ;biseetots es yylevisesqeot madd yd hettazoqsb oe 
bise bus ,beliso-o2 ,iaeuee1gA tnemeLste® yLime™ bise Yo died eazet 

_ Seb neve gaiteed bas tooseds sousmemg at obs InomoeTgA JawsT 

edt ot eipml of bas nogy gnibatd ehsm stew ompa ont ,diwotVeds 

— ,sited ovidceqest tisdd bag oveteds eoitisg add to dPlened 
he : eon) 00. peigtees baie: etotettatatabs 

- tenxd —** oft gad} ebati redgawt Sued e. oo ono 


<8 vedmeoeG Yo iaomectgs bisa yd bas at etewtt edt bedqooos: yasquiod 


acqu bezoqmt ,hI@L fl eal to Jaemergs sewst bise bas ySiel 


eeistiaoce bise mott emooat odd soollos ot bouniinos. ses tseteds bas 
sebae tt Yd bied bas of bottojensis oa tierods aotusi¢edwe afd 10 


“fz us v gad PeOB. «s a eta J ge tTiid 


4 

said Marriage Settlement Agreement and said Agreements of December 
2, 1912 and of June 11, 1914, and paid the net income therefrom to 
the widow of * * * Crane, Sr., quarterly, in accordance therewith, 
and that up to and until June 2, 1932, the net income so collected 
and received by The Northern Trust Company as such Trustee from 
Said securities, together with the income from the Atchison Railroad 
bonds, was sufficient to pay in full said annuity so agreed to be 
paid to Emily 4. Junkin, formerly Emily H. Grane Hem, 

"8, The Court further finds that by reason of the 
premises Charles R. Crane and Richard T. Crane, Jr., during his life- 
time, and the Estate of Richard IT. Crane, Jr., after his death and 
until the expiration of the period of one year from the date of 
Letters Testamentary issued to the Executors of his Will, remained 
primarily liable to Emily H. Junkin, each for one-half of whatever 
deficit might arise in the amount due and payable to Emily H. Junkin 
under and by virtue of said Agreement of December 2, 1912, as modi 
fied by said Agreement of June 2, 1922. 

"That by reason of the Family Settlement Agreement of 
June 11, 1914, and the Trust Agreement therein referred to and bearing 
even date therewith, each of the defendants, Kate C. Gartz, Frances 
C, Lillie, Mary C. Russell, Emily C. Chadbourne and Herbert P, Crane 
became severally liable to Emily H. Junkin and to The Northern Trust 
Company as Trustee, each for one=seventh of any deficit which might 
become due and payable under and by virtue of the terms of said 
contract of December 2, 1912, by and between Charles R. Crane and 
Richard T, Crane, Jr., and Emily H. Crane, now Emily 4. Junkin, 
unaffected by the modification of said agreement as between Charles 
R. Crane and Richard IT. Crane, Jr., pursuant to said Agreement of 
Jume 2, 1922, 

“9, The Court further finds that by reason of the passing 
of its dividend by said Crane Company on March 15, 1932, and there- 


after and until December 15, 1937, the income from said securities 





we 
tedasoed 2o udnpavexys hice bas taemoouys tnomeliseg ogatiial bkae 


os mosietedsd emoont Jea edd bisq Sas ,Alel all ent to bas SIOL .S 
eis iweuasit eonsbtoves aL ,ylroiismp _.14 ,ansT) * * * 1o woblw edt 
beteelioo oe smooni tom edd 4SECL ,8 enw Livan bas of qu tat bos 
mori ostewtl sowe es Ysisqmo0 dewil asedsdrof edt yd bevisoet bas 
hsotlisl moadsct ofd moth emmoml esld di by iedjegot ,.seisiweose bise 
ν henape.oo. et umen ben ALOR a Neg,.a6 tee: 08 Ble 
** * ene — E— — — ————————— 

acid 29, mosses Yd dant. abat? redtad tuwod efT Bn. 

~etit ald gatuvh ,.% ,onet? .f baadotd due oust, — thee 
bas dtseb etd cedts oth .enst) .0 buadosfi to otated edt bas gemtt 
20 e¢ab eid moxt sey ene to bolieq odd Io solisitgxe eds, Litay 
heakeaoy LLM etc to etodueox odd o¢ boynel yxataomstae? atettol 
“evetsdw to Tiedeeme 10T dose ,ilews . yLiml of eldest yltismtag 
abievs .f yLiai ot efdeysq bas eub deoms edd mt satus ddgim tiotieb 
mena: 45 teduoved lo dmemeergs bise to esiuty yd bas tebas 

. ; sS8QL 8 env lo taomeemgs bise yd belt 

to dosmectgi dasmelivec yitust eds te aoases yd Sadly oc 
gilised bas of bowrele: aiowedd Imomergs teat! end bas gMOL LL emul 
_ goomeTl qniieD .0 efei .adashnetob odd to dose, gittweredt, stab neve 


geen A dredtell bag suodbadd .o yb! ~lloeewl «0 yual geliitd .D 


ten? oseddtr0f eff ot bas aislowl .I yas of sldsil IIaaovoe omsoed 


Gaigin dotdw tLobieb yas Yo ducver~one s9t dose ,oodemsT e¢ yasqmo) 


bkse Yo amret esit to estsiv yd bos tebay eldsysq bas xb emooed 
has snet0 .f aclisdd asowted bas yd 4SLCL .S seduoced te Josttnos 
ditui. oH YE Le wom. ee) oH YL intl, aais 9g 6th .g0Het...T bade ts 
eelisdd moewted 2s Jaomeetgs bise to solisoittbom. edt yd bod oo raacu⸗ 
to taamosigé bias ot dasueing -y. Thqometd »T. proves Sas70 .a 





« Galery * J 2* sh 880ö gS, ose 


aaiedsq edt o-mogsos yd tad. abut. — pom att to nes ores 
— bas .SECL .Ul dors so yRsquod east). bisa yd baobiyth,.2tt, 20 


“gekdiasoee bise movi emoont odd 4VC@d gl —B——— 


-lj- 

in the hands of The Northern Trust Company as such Trustee, as 
aforesaid, together with the ineome from said bonds of the Atchison 

* * * Railroad Company, became insufficient to pay sald annuity so 
agreed to be paid te * * * Emily li. dunkin, as aforesaid, in full. 
That separate accounts were kept by The Northern Trust Company, as 
such Trustee, as aforesaid, with each of said parties to said Trust 
Agreement of Jume 11, 1914, as therein provided, which said accounts 
were rendered to each of said parties, quarter-yearly, and that 
thereafter demand was made by The Northern Trust Company, as such 
Trustee, upon each of said parties, quarterly, from time to time, for 
his or her share of such deficit in accordance with the duties imposed 
upon it by said Agreements, That their obligation to pay their re- 
speetive shares of such deficit was from time to time fully recognized 
by each of said parties and full or partial payments were thereafter 
made by them, That on October 16, 1931, defendant, Kate C. Gartz, 
sold, assigned and transferred to the defendant, 4, P. Gartz, Jr., all 
her right, title and interest, as beneficiary or otherwise, in, to or 
under said Trust Agreement of June 11, 1914, above mentioned, but 
that said assigmmuent was made by Kate C. Gartz to A. *. Gartz, dre, 

as Trustee, and wes not intended to and did not impose upon him, 

A. F. Gartz, Jr., amy personal obligation to make the payments in and 
by said Family Settlement Agreement assumed by Kate C. Gartz, but that 
Kate C. Kartz personally and the securities so deposited by her with 
fhe Northern Trust Company, as Trustee, remained liable and chargee 
able with her respective portion of whatever deficit may now exist 

or may from time to time hereafter arise on account of her agreement 
to pay such one~seventh share of any such deficit as aforesaid, as 

in said Family Settlement Agreement * * * provided, 

"The Court further finds that Emily C, Chadbourne has like= 
wise fully recognized her obligation to pay oneeseventh of any such 
deficit upon the basis hereinbefore stated, and that by virtue thereof 
she likewise is personally liable and the securities deposited by 
her with said Trustee are chargeable with her share of such deficit, 


9 


as ,ooteut! dona as Yasqmod dawxl mieddol edt Qo ahnad sad ah 
soatidods odd to abeod bise mov amoont opld Attw iedzeyes .bieretole 
o2 Ydlunas bias yeg of dmololtiwedt omased ,yinquod heoqllal * *.% 
List mt ,disxorpia ea, gatslewt li vind * + * of bteq od ot beomgs. 
as ,Ydaqaoo taut axed sal scl yd sged onow edaupope etareqes, tadT, 


geuti bise of aeliisg bles Ie dose Aitw ,blasexqls ba ,06 





T done, 


etamoose bkse sotdy .bebivesy atoxads a0 «MOL 
tosis ino eYinsoy~nestaup yueliag dias To dase of houabaen exam, 

dose oa qyasqned Joust axeddsov oc yd oban gov husnoh ros tserod9 

a0 yeuly oi oul wos _ysodtaey ,eotiuag ise 20 soap, aga, yeegesa? 
benoqut aeitud old di iw eomsntooes ai tteted dowe Yo eaetie wad x0 atd 
~ox chore eq of molyaghive ctedy Jad? .admomeompa Bes yd ¢2 aogu, 

| Bewtagoves yilui emt) o¢ outy sui eaw ¢tokieb dows 20 aezade evivoege, 
wotteexcdd onew ajmemyec Letdieg 1 Lint bas eebdiag bise. 20 ose xd 
s87tHD 0 of% .fusbaotO _LERL OL sedosog a0, dadh mod. vd. bom 


Pog ake 


{Lo qath eadaed posbaeted sit of hemwtemast hos beagtzas blog, 


to of ,al ,selwiedso 10 Yraioliened ea .gaetsial has. ests —J wos 
ind ,benotiaem eveds .AiGl A. enw to, stnomooigs sayat bios webas 


as th meted . +i .A OF BPten .9 sted Yd obam saw , 


— 


sii mogs osoaut tom bib bus ot bebaetal ton x bee «90das3" aa, 





dian, Sat, 


Aug 2f, Mme ES ont. srlng ot. mmbtentide, Sepenneg, WH 9a Sb.gt* BPP est 
Yasid Jud sito 0 otal YS bemeas Jasmerys tmomeLIten Uitmal bites yd, 
dity rod yd betteaqeh oe aeliiues edi baa yilemoaseg sited .0. ofa 


~ogiario hus ofdsti benkawox goodeuyl 4s ,ymaquod Jews! atoddts0/ edt 


Yebxe you Yau Jtotieb evedsiv 20 aotonog pvitoogeen todd by pide, 
duomoergs ted 20 tauooos 0 eatts tet lsered eats of *2 


ea _gbtseerots as thotieb dome Ys to oes dgaey 7 


i women athe ee tee nee — 2— dnomeg08, % 
edb ead onuodbadd .9 YL dad abel? roddu Jwod eatT* 








ee — earl 


dove yas to dinovosqeno yeq o⸗ aoitsgiide ted, bostngoses, yLLsrt 92 kw 





toorads outa vs. a sds bao. sbotats. Stet odakered ete 
* bod keogee ott runo — bas eidatl lenor aog 


— doxe div oldsopiasdo ou ood ant 


essai 


£ oatwoult if. 
 “yosmigars gg $F te, DAS. toa 
bise 


dsiw wea 


s —— 


—J 
J 


—1 G0 

if any, as may now exist, and of such deficit, if any, as may heree 
after from time to time during the lifetime of “mily H. Junkin arise 
and become due and payable to her, 

"10. The Court further finds that on November 7, 1931, 
Richard T. Crane, Jr. died testate, and on January 20, 1932, his 
Will was admitted to probate in the Probate Court of Cook County, 
Illinois, and Letters Testamentary were issued thereon to Cornelius 
Crane, John K, Prentice, Walter Evensen, and the Continental Illinois 
Bank and Trust Company as Executors thereof; that thereafter the 
said Walter Evensen resigned as such co-executor; that no successor 
to him as such co-executor has been appointed, and that the said 
Cornelius Crane, John K, Prentice, and said Continental Illinois 
Bank and Trust Company accepted their appointment and have since 
acted as such Executors of the Will of Richard T, Crane, Jr, 

"ll, The Court further finds that on December 2, 1932, 
the deficit in the amount due to Emily H. Junkin under the contract 
of December 2, 1912, and said Supplemental Contract of June 2, 1922, 
with Charles R. Crane and Richard T. Crane, Jr., as aforesaid, as 
shown by the accounts rendered by The Northern Trust Company as 
Trustee, amounted to the sum of $14,262.53 for one-half of which, 
viz., $7,137.27, a claim was filed by or by the direction of The 
Northern Trust Company, as Trustee, in the name of Emily H. Junkin, 
against the Estate of Richard I. Crane, Jr., in the said Frobate 
Court, That thereafter and before the expiration of the period of 
administration of said estate of Richard T, Crane, Jr., * * * the 
same was paid in full, one-seventh thereof by said Executors of the 
Will of Richard IT. Crane, Jr, and the remaining six-sevenths thereof 
from payments made by the other parties to said Family Settlement 
Agreement, or some of them, in accordance therewith. 

"12, The Court further finds that under and by virtue 
of said contract hereinabove referred to as the Family Settlement 
Agreement * * * and the Trust Agreement bearing even date bherewith, 
so made and entered into with The Northern Trust Company, as Trustee, 


we L= 
~OT9 Yas ae «yits If ,clotie® dowe to ine ,Jetxe wom Yem ean yyas tr 
satis abiewl . yLiat to emivelif oad gatemb omty of emts mort t03te 
tod of oldsysq bus esb emoosd bas 
— ,\ Tedmovell Ao tad ebalt reddawt tuw0d ofBe .OL"% | 

eho gShCL 08 Ysauael mo bas gotatacd helb .i ,onstd) 2 biadolAs 
ettasod Hood to Jano? otadowd eit mi otadotq oF bettimbs eew LSA 
etisar0d es mooteds beseat stew yYisinomedae!l aiséved ins yetomtLiI 
efontifl Isisenivae) edd bus ,aeemevii te¢LeW! yootgaort .X mdot., ened 
edd isd‘tsewsdd tadt ytooreris esotvesxd ag yasqmod Jeni? . bas wasd 
sogeoooue en dadd ytoegnoexs-~co Howe es beatgheou moamevd aotiew bise 
bisa edd sadd bus ybotmtoqgs moed ead todwoexs—oo sous es mid lod 
afenfiil Ietdnentiae) bisa bas geokinett .A adel ~ans 10 exllemi00 
sonte eved bas Jasmntoggs thet bedqecos Yisqmod tant? bas aed 
«th yonss® .f buadoli Qo LLA edd to etotuesxd uote ee besos 
@SERL 4S todusv06 wo tedt abatt stoddust Siw00 ed? .f0"! oy Oban 
Joattnos edd rshow cisiewl .H yLimi of exmb dnwoms edd mb Sioltsh eds 
SSCL 48 omit Io foswda0d Lstaomelqqsr bhew bets ySLQl(S rddiusoe to 
as ,biageiols 26 qs) ,ensT) .2 ftedotd bas enst) «A aohrald ddiw 
86 Yeqmod JentT atesijie adT yd borebast eSewecos enld Yd aworle 
eloisw to Tlamone tol E2805 ALS ‘Do awe os oF Hodawoms ysotenrT 
edt Yo moiteetih edt yd vo yi beltt zaw mislo o _ VS. FELIS q.atv 
mblonl sl yLtsil to cman edt at .sotane? es gyteqned vabel aveds zon 
etadord bise odd mk , yomet) .f beaott to et¢sted edt Santsgs 
to bolieg oft to noiteriqze edd e1c'ted bus toPiseteds teil .duvo0d 
edt ** *% 4, cl ost) .2 biadobl to otetes bles to soli srtetatabs 
edt to evodesexl bkee yd losin? dinevecsenc Lint of bisg ese omee 
tos1edd eritnevee-xte zititemet oft bos .tb ,oet) 4? buadokl to LLM 
Snomeliteo& yLlmst bhee of toitieg tate edd yd shan. 2taomyeg oT? 
in dd bwevolid comsbroc0e! mt quest Yo emoe™td’ .gnemeonyA 
‘ eudaiv yd bas tekawy Sect ebabt redtawt pawod elt sin oe 

| dnomeLites YLimel edt 28 of bourwler svodentoned SomThHOo kee 
idiwererid ofieb asve gatised tnemectgA tawsT add has * * © —— 
epoveueT as gymsqmod desx2-nredd 10h sdf siti: odmt hevetne bus ‘bento 





-17= 
both Emily H. Junkin, for whose benefit said contracts were made, 
and The Northern Trust Company, as Trustee, became and were severally 
entitled to enforce the obligations in and by said agreements assumed 
by the several parties thereto, and that it thereupon became and was 
the duty ef The Northern Trust Company, as Trustee, to enforce the 
respective obligations of the parties to said respective agreements, 
"13, * * * [In paragraph 13 the court makes findings in 
reference to certain proceedings in the Probate court of Cook county 
in the matter of the estate of Richard T, Crane, Jr.] 
"14. The Court further finds that the jurisdiction of 
the said Probate Court in the Matter of the Estate of Richard Tf, 
Crane, Jr., is limited and inadequate for the adjustment and enforce= 
ment of the equities of the several parties in interest herein, and 
especially to make suitable and adequate provision with respect to 
future deficits, if any, under said contract of December 2, 1912, 
and said Supplemental Agreement of June 2, 1922, as the same may 
hereafter arise; that no action has been taken in, nor order entered 
by said Probate Court in the Matter of said Petition so filed therein 
by * * * Emily H. Junkin nor upon the said claim of Charles 
R. Crane, hereinabove mentioned and referred to; that the power 
and jurisdiction of said Probate Court to establish a lien upon 
said 1,000 shares of stock of said Crane Company, which by the terms 
of the Will of Richard T, Crane, Jr., were bequeathed to Herbert P, 
Crane as a director of said Crane Company, or to control or dispose 
ef the same pending the determination of the liability of Herbert 
P, Crane to the Estate of said Decedent growing out of the assumption 
by him of a portion of said alleged liability to Emily H. Junkin, is 
also doubtful and inadequate for the proper determination of the 
rights of the respective parties to such controversy, and that by 
reason thereof said plaintiffs properly filed in this Court their 
said complaint, and said distributees of the Estate of said Richard 
{, Crane, Jr., properly filed their counterclaim herein, for the 
purpose of having the rights and equities of the several parties 


—— 


— 


oebaat oasu atosiiaos bise iitened szosdw yt ——— · Vise So⸗ 
Vierseves ezew bus emeood ,cetensl 26 ,yasqmod genct axedé zo ‘oat boa 
beomyees atnomeergs bise yd bas at enotdsgtide out soto'sse od bolt tsu0, 
eaw bas euased goquetesls ti tans bos ,ofonedt settisg Latevee ‘oid w f 


exig eotclas of qoetentl as yYeqaod JemsT mrecid toll od te b if ee 
eri x 
-atnomeetgs evisvosqeet bise et aeliisq ext to anokiagiido ovitooqees 


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Oe “hese 
to meistoibeilipyl, ect dasit ebatt resid 0 wwod ‘edt — are 


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boas ,ttered georstak at eeltteq Lexevee old to aotytupe oad 2 = 
ot Joogaet Ad der mola tvoug of eupobs bas oldsd kue ones o⸗ ‘Wistoogee 


—8 2S tedaeoeG to dostdaco bisa robes A ut ———— emt ut 
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atoresis Belt? 08 Holt tto% bisa to rodteli ‘onis ab 2wod odador’ btse 

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~1S= 

in interest herein properly and fully adjudicated and enforced, 
"15, The Court further finds that on December 2, 1937, 

the amount of the deficit payable to Emily HK. Junkin under said 


eontract of December 2, 1912, and said Supplemental Agreement of 


yo zune 2, 1922, was the sum of $88 ,897.01¢) exclusive of Attorney's 


fees, costs and expenses incurred by said Trustee in connection 


ye 


⸗ 


with the filing of said claim and the petition in the name and on 
behalf of Emily H. Junkin, as oforesaid, and in this proceeding, 
and exclusive of any additional compensation to said Trustee for its 
services, for one=half of which sum, together with such Attorney's 
fees, costs and additional compensation to said Trustee, Charles R. 
Crane became and is primarily liable, and for the other half of 
which the said distributees of the Estate of Richard T. Crane, Jr., 
became and are primarily liable to the extent of the assets of said 
estate so received by them, respectively, as aforesaid; that under 
and in pursuance of said Family Settlement Agreement and said Trust 
Agreement of June 11, 1914, the said distributees of the Estate of 
Richard T, Crane, Jr., became in equity liable as between themselves 
and Charles R. Crane for six=-sevenths of such deficit; that the 
shares of such deficit for which defendants, Kate C, Gartz, Frances 
C. Lillie, Mery C. Russell, Emily C. Chadbourne, and Herbert P. 
Crane, respectively, became and were liable, were as follows, viz.: 

Kate C. Garts...cccccscsccccececccncesesse2dy 005004 

Pramas ©, TAU Gisicaccecoesecsavicenccan _ 299200 

Me G, MEMES see secebrecsdeacecvssevens LL,791. 6 


Emily Gs CHAGDOUTHE ccc ceesiessteavaewceses 5s 9 200 
Herbert P. GPANG cp cics ee Vevecsavenneeennce 44,604.77 





making said total deficit the sum Of. ...0+0000900,097201 

"That said Frances C, Lillie, Mary C. Russell and Emily C. 
Chadbourne have each paid theiy respective shares of said deficit in 
full, exclusive of the additional compensation to said Trustee, ani 
of the legal costs and attorney's fees incurred by said Trustee, as 
hereinafter stated. 

"That the share of said deficit so due on December 2, 1937, 
and remaining unpaid, for which Kate C, Gartz was then liable, is the 


St· 
-beowine has hetsotbhuthe CIan bua ylueqoug: ahered! febrddal’ ‘i 
eSECL gS todmpocd Ho teat ebelt seddawt senod-eHDyeyee oT bee 
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te Inemoe1gs etaomelaqua bios bag ySQl 8 -redmbosC "WS tostiaes © | 
ayen107té to evleulowe af 9aT 08,888 to mua esd ow 8804S otttrt,, : 
Roljcenioe at eegenrT bise yd bowiwont seameqte Bag efeds ”: | Py 
fo bas omen edd mi moitkdeq ofd bas mbalo Aled Yo patfit set atin)“ 
auitdosvoig aldd at bas gbiseotols ae yabinwt “oH YL dust to ‘Lfseed 
esi sol sevewel bise of sotiveneques Lanolstebo Yas to eviawfoxs bas 
e'yentott: dove dtiw tedteges yawe dokdw Yo Qiadwdne aot Aaootvros 
of eeltadd .eodeuTl bise ef avijsenoqmoy Lauoitibbe bie eed Yasdt 
to Mad costo ssid toh dns yeldadl yLtuambay 2 big’ omeodd sktsed 
tr 8 coned® «2 basdoli To edetel edd to. essdudbatebb bie Shs Hoty” 
bis to afeues edd to Juedxe ond of eldals yLbammted-ors' bith 6ha8ee° 
| wshau Jadd phiseeiota 2a .ylevidoogeot Hort yd bevicoer oa ofatae” 
| daly Bee deo dxeun ergs dummebitot<hamen tines 30 cones aE be 
to ofeted eld lo geoiudhutels bise odd .bi@L. £1 saul Yo eemsetgh” 
eevisemeds aeewsed 28 eldstl yd types ab cussed ,.%b yous? .Y baadort® 
ods Jens jikolieb dove to eddmovemente sot cided .A-estaddd Bad” 
toons atts) .o etek ,etaabrotes doktw wo? ¢toteb setie’ to Borate” 
ot t4edisH bus ,enwodbsdd 40 YLiul qifezent ,o yank \OEECE oe 
‘,Riv ,awolfol es otsw ,oldsiL exew bos omaded vlevivseqeet yonst0” 


a? To 
40, 886 33 5 — etek © * 
$5,0I0, — eT he eee See eee eee ast tO 
——— terre ee rptetensesesees ooes «Leet 3 — * 
⁊ pO TORRE 6 20 

WWF 4 OO *2 NE OEP OSH OK NEw 10 3232 ents 





raed eee’ ‘0: o% 


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O83 ob 


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.BeGss2 toftantored 
Lrago%y «? —4 


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i: Beex ould Be —J—— ‘ts sora 
elt ak ,ofdstt meat bew sdaed .o sta dotdw sot ,bisqas 


— 





= 
— 


-19= 
sum 423,688.04 as aforesaid, That said Trustee has since collected 
from dividends received by it on the stock of Crane Company deposited 
with said Trustee by Kate C, Gartz and now held by it as provided by 
said Family Settlement Agreement of June 11, 1914, and the Trust 
Agreement of same date, hereinbefore mentioned and referred te as 
Exhibit Z, the sum of $18,536.56, which has been applied in reduction 
of the said sum ef $23,688.04 so due from said Kate C, Gartz, leaving 
a balance of $5,151.43 still remaining due from her as of said December 
2, 1937, in addition to her oneeseventh share of the additional com= 
pensation to said Trustee and its legal costs and Attorney's fees, as 
hereinafter stated, 

"% * * That sald trustee has since collected from dividends 
received by it on the stock of Crane Company deposited with said 
Trustee by Herbert P, Crane and now held by it as provided by said 
Family Settlement Agreement of June 11, 1914, and the Trust Agreement 
of same date, hereinbefore mentioned and referred to as Exhibit B, 
the sum of $18,536.37, which has been applied in reduction of the 
said sum of $44,604.77, so due from Herbert P. Crane, leaving a 
balanee of $26,068,20 still remaining due from him as of December 2, 
1937, for which sum, together with oneeseventh of the additional 
compensation hereinafter found due and payable to The Northern Trust 
Company, as Trustee, and its legal costs and Attorney's fees, said 
plaintiffs are entitled to a decree and judgment as at law against 
defendant Herbert P. Crane, 

"16, The Court further finds that by reason of the premises 
and by reason of the deficits so accruing, as aforesaid, and by reason 
of the death of Richard T. Crane, Jr., The Northern Trust Company, 
as Trustee, as aforesaid, became and was obliged to perform additional 
services not contemplated by the parties thereto at the time that said 
Agreement of December 2, 1912, and said Family Settlement Agreement 
of June ll, 1914, were made and entered into, and that said Trustee 
is entitled to additional compensation for such services, which the 
Court finds to be the sum of $3,250, being at the rate of $500 per 


-l- 
— ie 
betoeilos sonte sad estent! Sise JadT ~ ,bistetots ex $0,880 E54, mua 


bevieoge® ynsquol anaiD to doode eft wo JE yd Bevtovex ebsieobivih mort 
yd bebitvow eso th ye bled wom bas soveh .0 ofall yd setenr? bisa, dtitw 
dana? old bos .MLOL 4IE ons 10 fmemeetga teomeLIyes ‘yLhmat bee 
as of} bortetet bus benolines orotedntored ,otsbentsa td Jaemeergé 
solvoube: mi beliqqs ased asd dotdw ,O¢.d€¢, 819 to mua ons (ht hdidad 
gatvsol audits) .2 ofa Bise mort omb oe"SO,883,€9% ‘Ro ane (Dtew edd (20 


‘aedmoo0@ Bisa Yo es ‘Tei moth epb yatnhsmet Lite Ch. 125,83 Yo sonsisd a 


~mo9 fanottibbs oft to otssia dtneves=ome vert ot HOLPRDHe me (NECK 4S 
as geet a'yanwrodsé bus edaoo Tegel ett buna sodeel hice og, motdeenog 
é a at ity isda teftanteto cf 
abnobivib mot betoelloo souta ust sotentt Bice JafT # HO 6 oper) 
ssa déby bedteoged Yasqmod emer) ‘to weote ‘edd mo $2 yt bevtepes 
bkse yd bobivoi es Jf yd bIem wort baa east) s¢ Sxddtel-yd cotawiT 


daomeotgs det! ond bus Mel .LL ombt Yo thomeough Setomelssoa yLimst 


ei tidisi® as of bettetot bas bomotinem orstedstleted .eteb:smba to 
eds to doivosbe: at boifggs meed ead dobriw: Weder. BLS To mwa edd 
& yitkveol .omer) .4 dudetol moxt Ob os a YT. AODgMAP Bo mud Dise 
eS tedmso0d to ee mid mort ovb entabsnor {Lite 08,800,989 to eometed 
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| bise ,29et e'ysa1ottA bas efeoo Lagel et? bas ,oetawt? es gymeqmod 
tentesswal 38 22 treme but ‘bas oetse6 s of beltitne ous eitiatala 
207.4 daedsslt 
eeeimenq edd to mocset Yd dads sbatt sengant dtv00 od? Pe 

mozsox Yd bis ,bissetels as .gaiutoss oa atkolied only to mene yf. bas 
— Sewtk axoigzo edT 4.1 ,onetd . basifoii Yo si¥seb odd 0 

Lsnotétbbs mzotisq of begifdo esw bas emesed abiseotots as — 


TL ee © ee ae 


devoawsortg A tnomeljsoa yLimel bisa bas. lel ꝓge⸗⸗ * tae —X 


84 


setaui? bise decd bas .otnk beredne bas obsa oe. — — 


bise dois emis odt ja otosedd aetireq ald, Wd betaLgnotaos | dom eeotvise 










oe 


| 


— 
year for the period from December 2, 1931 to June 2, 1938; that 
said Trustee was also obliged te employ and did employ counsel to 
advise it with respect to its duties as such Trustee in connection 
with the enforcement of the several obligations of the several 
parties to said contracts during the same period, and that said 
Trustee is entitled to be compensated for the reasonable fees of 
counsel so euployed by it for the purpose aforesaid, which the Court 
finds to be the sum of $8,500, which said additional compensation of 
said Trustee, together with its legal costs herein, amounting to the 
sum of $42.49, and Attorney's fees, as aforesaid, constitute a proper 
charge upon the trust funds so held by said Trustee as aforesaid, 

"17. The Court further finds that by reason of the premises, 
as hereinabove stated and set forth, it became and was necessary for 
said defendants, Cornelius Crane, John K, Prentice, Charles G,. King, 
William R. Odell, and Continental Illinois National Bank and Trust 
Company of Chicago, and Florence H. Crane, as distributees of the 
Estate of Richard T, Crane, Jr., and also for defendant, Charles R, 
Crane, to file herein their counterclaims against the other parties 
to said Agreement of June 11, 1914, for the purpose of determining 
their liabilities, respectively, as between themselves, in accord= 
ance with the provisions of said contracts of December 2, 1912, and 
June li, 1914, and said Supplemental Agreement of June 2, 1922, and 
that said counterclaims were properly so filed, and should be 
sustained, 

"18, The Court further finds that said distributees of 
the Estate of Richard T, Crane, Jr., are entitled to a decree herein 
directing the payment by said defendants, Kate C. Gartz, Frances C. 
Lillie, Mary C. iyssell, iimily C, Chadbourne and Herbert P. Crane, 
respectively, of their respective sharesof the existing deficit so 
far as their said shares have not heretofore been paid by them, to- 
gether with their respective one=-seventh shares of all deficits which 
may hereafter, during the lifetime of Emily H. Junkin, become due 
and payable, for the six-sevenths of which said distributees are 


K 

tend BCCI .S emt of TECL .& tedmoocd mov ‘botteg ett 10 * 

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bise ters bus gboltoy omer odd gafted efostitnos bise of eettikq” 

to eeot ofdenoesot oft tot bedsemeqmes ed o¢ belt itne eb osveit 

duno0 add dot (biseerets eeoyued ond set $2 ye beyolqno oz Teenuos ” 
to noissesoqmvs Lovott thbs Sise dotsy ,000,B8 to me edt of dt bbatt © 
eit ot eattavom: ,mioveri edeoo Leger ext ashy teddeyos osseird” Disa’ 
asqom 6 eftditans ,bisvore'ts as .eoet ea tontodsA bus (eh. She" 4o me 
sbiszetots es cotent? bise yd Bled oe abot sett Sed nog o 

s2oalmony ont te moxsot yd tart ebectt reddit Jawed ont Phy sl 

| a02 Yiseesoon tow bas emsoed tf ydiaot dee bie betate svodsitorel as * 
| (Rs 4D aeLrerlD yoottnor’a A mefol ,onstO ebbfonxod (athebneted Brie” 

Sage bus Atats Lenottell ehouiifT Latmontined bie Lf6bO".# meLtt hr” 
edd to eeetudiatetb es yomet®? .H semerolt Bis ogsokio<tto ysqmoo™” 

i coLtsd® ydashasted rot cele bns y.2b .emet0 sf Stetelt to otste®” 
eetiuaq wodte eng tenteys emtslotednwoo short absrort eftt of ‘yomet)” 
galtiwroted to sxogtg edd tot C oft to swomesaga Brs2 or” 
“br000s ai ,eevloemedt neewsed as yylevitooqees yeotstitderl ttedy\- 

bas ,Sl@I ,S tedmece@ to etosusies bites T6 anotelvog edt idtw seas” 
baa SSCL .S omth to tnomeetgé Ssdnomblqqit bEst bab (Ser , te eae? 

éd Bivorde hus .beLEt oe — —— ————— pads" 

— + benkadee” 

‘Yo asedudiweth btse Jedd ebakt rods} saw0d' oat 8 

gterel setoeb = of belstsas ete 4X6 ,9meID sf basdotd Yo etetaa edd’ ” 
.D adouest .adeKD 19 OF RT yatnsbasteb bisa yd sHomyeq edd potbtostio”” 

_ yoaetd .¢ PredtsH bas emapodbsio /0 YEtme ,ifede, fi <9 vie jetithr’” 
oa Stobiob gubteixe odd toeotade evisseqaes xtedd to pyLevie sbqedt”” 
-oF <uodd Yd Skee Heed éretosored ton eved eoxade Bisa ateds es 28t* 
dotdw-edtotieh — 
enh omoved ..ablavt .H YLLatt to omtsotkL ond geteob (xed tseted Yeu * 


exe acsdudhivelb bise dolsw to .eddmeves-xte edd 10% yeldetsg bas”” 4 


re 
— 


—⸗ 
primarily liable as aforesaid, as between themselves and defendant, 
Charles R, Crane, who is liable as between himself and Mmily Hi. 
Junkin and The Northern Trust Company, as Trustee, for one-half of 
such deficits, but who is liable, as between himself and said dise 
tributees fer only one-seventh of such deficits, That Charles R. 
Crane is entitled te the order and decree of this court requiring 
said distributees and Kate C. Gertz, Frances C, Lillie, Mmily Cc, 
Chadbourne, liary C. Russell, and Herbert FP, Crane to pay and satisfy, 
to the extent they are respectively liable therefor, any and all 
deficits now existing or hereafter arising, other than the one=-seventh 
part thereof, for which Charles R. Crane has remained liable under 
said Family Settlement Agreement and other Agreements, in exoneration 
of the liability of Charles R. Crane to limily H. Junkin under and by 
virtue of said Agreement of December 2, 1912, 

"19. The Court finds that Frances C, Lillie, Mary C. 
Russell and Emily ©. Chadbourne have never denied their liabilities 
under the contracts hereinbefore mentioned or refused to pay their 
respective shares of the amounts due or payable to or for Emily H. 
Junkin, nor has any of them ever claimed to be entitled to any 
reduction in amount of their respective liabilities by reason of 
said contract of June 2, 1922, which reduced the amount to be paid 
to Emily H, Junkin from $100,000 per year to $85,000 per year, nor 
prior to the beginning of this suit had there been any controversy 
between plaintiffs and Frances C. Lillie, Mary C, Russell and Euily 
C. Chadbourne, except Frances C. Lillie's objection to attorneys! 
fees of plaintiffs; that, from time to time, when they were notified 
of the respective amounts due from or payable by them respectively, 
Frances ©, Lillie, Mary C. Russell and Emily C. Chadbourne, with 
reasonable promptness, always paid the amounts due from or payable 
by them respectively, that they owe no part of said sum of $83,897.01 
of deficit due December 2, 1937; that up to and including June 2, 
1938, they have paid in full all sums claimed from them, except 


—E— 
.iighaeteb bos eevieemals aeowjed as ybtsaerols ea eldatl yhtusatrq 
oli yiiel bos Leenkd soowied ae sidelk ef ofw ,enetO Mh eoltedld 

to Iisdesao wil ,cetawal as ,yiequed Juve p~sedsao0 edt bas, mila 
~ain bise bas ‘Lowa semied 2s ,eldekl et ow dud yetiebteb steve 

fi aelxed teal ,ailotieh doxz Io diaeveg~ano —— soogndiat 
grititspes siuseo aidd to seieeb bas sebte odd of helgline et ened 

«2 Yhto .ofLLbl .0 2eonexl ,adasd ,0 ete bas eeotudivtieth bise 
a¥ieitee bos Yoq of omat) .f dusdasi baw ,ifeeanil..d yreld ,emimodbadd 
ils bus Yas ,I@lemsds eldsil ylovisooqaes ets yorld, Jaedxe alt. ot 
Sinevee-on9 eds aadd sedto walelisg tesIsored so gakselxe wor ettodieb 
wobns eldell beitames gad omas2 A aeliadd dobdw io? ~hoesedd: d1s¢ 

—« MoLteteHOxs ot gadacmorgs reside hos JnomootgA tnomeldtes yLhmst biee 
(Re hae tebe mbslewe 6K YLdae of amend ff eeduadld To ghiitdats edt to 
| SEQL 43 1edmosed to taemevigd bkae to extnty 

oe? Yuk qetlini Sragonett Ist abbott dud, off sQl® oii i kt! 
aeiviiidsti utedd beinoh seven ovad onuodbadd 0, Vital tus clean 

| Redd yeq ed beas/lor se bemolsnem erpiadnbord edoagiago orld) aebmty 
+H Glin spt so od eideysq 19 oNDredawoms edd to sousde evijoeqeat 

_ Yas oF beljtine ed ct Somislo tevo madd to yee ead, tom yatringt 

fo aoasoa yd eotiiltdasl evttoogees whens Io faveme, at aohtoubor 
bisq.ed o3 anuoan oid beoubor dolay _SSQl gS enw to Jootimoo bse 
SOR Asex⁊ TOG 000,28 oF say req DODO, sont mbalowh «H eLtasived 

| yersvorsaeo Yis aced otedd bad tine elit to yatantged edt ios toksq 
yiioi bas [leees .o yrs ,otifii .0 eoonetl bas ettidaisiq sceewied 
‘eyeniotts o¢ Sotgooide eteliits «2 eeorett dqeoxe yomiodbsd? ,2 
Heliivon erew Yods modw ,omts ot emi most .tadd yettitatelg to eset 
atievisceqeet sods ————— aduyoms @viteeqaet edd “to 
eids¥aq to orl vb ainwoug ocd bisqg eyswle ,eeedntqmory eldanoaset 
—* to aus bisa to J1sq of swe Yods ceds yylovitooqens medh yd 
_ «8 0mm gabbuloant bas ot qu tant ~NERL aS codmeseG.eub dtotteb 20 
» TE99RG gitedd mott Dembealo emma tLe List ah bien: qvael Tenet GEOL 


a5. 





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— 
amount claimed for attorneys' fees of plaintiffs and amount 
Claimed for ‘additional compensation' of The Northern Trust Company 
for services in the matter of collecting from members of the Crane 
family for Emily H. Junkin sums of money not derived from the trust 
funds held by The Northern Trust Company as Trustee; that the state= 
ment of account of The Northern Trust Company heretofore filed 
herein shows all shares of deficits to June, 1938, that were at any 
time due or owing from defendants, Frances C, Lillie, Mary C,. 
Russell or Emily C. Chadbourne, were paid in full and that The 
Northern Trust Company then held in account to credit of 

Frances OC, LAL MACs cscccccncccecvececeesPlO,622.91 

Maly Gay RUSSELL b3,4780 99 

Emily C. Chadbourn@.scscccscccscssscccse [302039 
— $31, 683.09; 

"The Court finds that The Northern Trust Company has 


/ already received and taken for fees for its services in the matter 


of payments to Emily H. Junkin under the provisions of the contracts 
herein mentioned, two and one=half per cent, of the amounts received 
from interest derived from the Union Pacific Bonds and the dividends 
from Pullman Company stock held in the principal accounts, and one 
ged dent, of the dividends from the Crane Company stock held in the 
several trusts of Frances C, Lillie, Mary C. Russell, imily C. 
Chadbourne, Kate C, Gartz and Herbert P. Crane, and in addition such 
sums as were paid by Charles R. Crane, Richard I, Crane, Jr., and 
the distributees of the estate of Richard T, Crane, Jr., deceased, 
for fees, and these fees for the whole period amount to the sum of 
$34,312.81; that defendants, Frances C. Lillie, Mary C. Russell and 
Emily C. Chadbourne, each has already contributed to the fees of The 
Northern Trust Company from December 2, 1919, to June 2, 1938, the 
sum of $5,298.51; that Frances C. Lillie has from the beginning pro=- 
tested against the payment of attorneys' fees of plaintiffs and that 
Frances C. Lillie and Mary C, Russell have from the beginning of this 
suit protested against paying to The Northern Trust Company Trustee's 
fees or attorneys' fees for filing or litigating claim against the 


Snvoms bag eYiitatelq Yo eo0% "eyontotts Tt hemtalo Fons) 

yanqmod dent? ateddiot off to tnottseneqmoo Iamoli this! tot beihtsfo 

exist) st Io atodimem siott gattsefioo to cette orl? at weotvase Ot 

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qs ts otew tolt BECK omit of BFtolteb to vetarle ‘Its ‘world mheteit 

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od god bole [fet at Bisq svew .owodbadd .O yLtetl do" Lieeedt 

| to fibeso oF fmvosen mt Biot medd Yaeqmed ys 

See To ET 

wat CISTI ale re 

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abnobivib odd bas ehnod ofttost aola oil} mort bowiieb seorssnk wett 
eno ns ,etavooos foqiontag off mt bled doors ‘yindmod adattret'mOYt 
ods ad bled Aoote Yanquod onst0 edt mort ‘abmebivib ed} to [#068 48g 
“60 yLbati Atoeaun. O yusll gellinl .o edsnedt to edanat Lecevee 
dowe coltiébs mt baa peat) .¢ dredvell Bue séiad .0 e¢8% jantvodballd 

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sbezsooed gett ened ot basdo kh to odades oft Yo esedwebasa th ott 
to me odd ot tnvoms botteg oLodw ody tot geo? overs bad (268 20% 
bate ffeaana “ — “enter 0 — carnage ‘ait us. ete Mb 
satodbat —* 


rye 





—— ‘gattamtyed edt mort eat —* 0 aodae¢T Yorld —— 
Fast hows etttiatele ‘Yo eoet "eyontodts to Frtomyng ent Fentsys Bedees 
aldy’ to patted ‘ont wort oval ‘Theeent .d yrs bie oaths | eebistt 
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edt gentsgs mtsfo yatiegttt£ to gaklPt 10? eest ‘eyontotts 10 sot 





a i 
aa 
—* 


223 
estate of Richard f, Crane, Jr., deceased, or for litigating contro= 
versies with the distributees of the estate of Richard T, Crane, JP., 
deceased, or for litigating controversies with Herbert P. Crane, Kate 
C. Gartz, or A. F. Gartz, Jr., Trustee, or for any services, except 
services with reference to the property held by The Northern Trust 
Company, as Trustee, 

"20. The Court further finds that by order of this Court 
entered herein on July 1, 1938, The Northern Trust Company, as 
Trustee, was directed and ordered by the court to prepare and file 
herein its account covering the period from December 2, 1919, to and 
including July 9, 1938, and that said account was duly prepared and 
filed by The Northern Trust Company as Trustee, pursuant to said Order. 

"21. The Court further finds that it has jurisdiction of the 
res and that it can control the entire trust funds so deposited with 
The Northern Trust Company, as Trustee, as hereinbefore stated, both 
the corpus of said trust funds and the income therefrom, together with 
the right te direct how the account of said Trustee shall be stated, 

"That the Court has the right to take under its control any 
of the securities thatare now in the jurisdiction of the Court, as 
aforesaid, in order to insure the Payment of any existing or future 
deficits that may hereafter, at any time arise or accrue, on the basis 
hereinbefore stated, for which any of the parties hereto are now or 
shall hereafter become liable, regardless of whether personal service 
has been had herein on any of said defendants." 

The decretal part of the decree is as follows: 

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, and the 
Court hereby ORDERS, ADJUDGES AND DECREES: 

"l, That the motions heretofore filed herein to dismiss 
the complaint and amended complaint of plaintiffs and the counterclaims 
of Charles R. Crane and of Cornelius Crane, John K,. Prentice, Charles 
G. King, William R. Odell and Continental Illinois National Bank and 
Trust Company of Chicago, Trustees under the Wi11 of Richard Tf, Crane, 


JP., Deceased, and Florence H, Crane, be and the same are hereby denied, 


tS~ 

omnes gatisgiti ti 20% 0. gboaseoob ,.7b ,enet) .T biadotfi to sistee 

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ete ,onst0 .i Saedtel djiw esheteyoutaeo gatiegitt{ act 10 ,beessoeb 

tqeoxe ,eootvies YAS TOL to ,ooteNTT goth ghfI5D .% oh. 10 g839R0 49 

taust axewidroll elt yd bled ydrogoty edd of egmotetet atiw aeolviee 

. seateMtt 28 Wiaguod 

tawed eidd to webte yd Jedd ebalt dedtawt tawod ed, 208" yyy 

28 ,yiagmo0 gamit mredtrol ed? ,8¢0f .1 yivl ao stored bezetae 

ott fn siageta of Jwoo ont yd botebro bas botoeith eau yootanut 

bra ot —~peL@L .S tedweso mort botueq end yatieveo tavooos ett shorter! 

bas beisqoiq yinb eew Jowooos bise Jedd bas Bel .e vinl gatbuloat 

a Teb10 Stse ot 2 awe ootewTt es Yasqued tagxt avoc ou ‘edt yd beLtt 

eds to molvotbebuwt, aed di tals ebm? sedsawt gasoed efT IS" is | 

div betieogsb oz chant gaunt etkjas edt Loviaco nso tt dedt bus gey 

dod ,bedade exotedatoved ao ,ostemt! ea yymagmod ganrl atedtaol ed? 
asiw teritegod ,soxieteds emeonk elt bas ebawt tes bise to enqioo edt 
-betate od Linde optesmT bisa lo danooos edd wod tootth ot telgta ont 
wie Loataeo ext sebay ales of tdyhs odd wad Juno edd Sal. on 
88 AAuod edt Yo nolsotbetam, odd mt wou omtadlt asta, mp * 

onain to gatietxe Vis to soemped end oxmant od webr0 at ,btsze 

atead erly m0 eenT008 10 eziwy cmd yao te ,TeFIsoxed yom tact attottes 

to wou sts osozed aetiisq ong to yas deidw wt ,bedste eto 

sotviee Lenveteq reddecy to aaelbisget ,Sidatl emmoed sothanxed, Lads 

",adtshneteb bisa to yas ao atetedd bad seed aad 

tewol Lot es at seiveb oly to tasq Ietetpob eff 

ests bas dannoad GWA GEDCULGA ,GAANGHO MAOWANHT et rane ote ee 


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gaat ot stoned boLtt exotovorsd anokiom ont tell . oy 5) 
| emtelorotaveo ony has Atogusta ꝛo dntelqmos hobnems bas tatsqmoo ont 
eolzest0 eoolsmond .A aclol. .otisad atit lotiꝛod to bas ociaad * ‘eodtsst9, 20 

bas Ans@ Lenoldel abootLll Latmemtinod bas ILobO of mati Lt qyatt ⸗ 
const -T bussioli to Ifts ond tobay eostanr? soasoidd to yssqmod dauaꝰ 
| sbelneh yderted See ont, bas of 990879, oH eonet0L¥ bas _beesesed 03 





ed 

"2, That the guarterly accounts received in evidence here- 
tofere rendered and stated by The Northern Trust Company, as Trustee, 
as aforesaid, to the several defendants with respect to the income 
received from the securities held by said Trustee, and the application 
of said income, as provided by the several agreements hereinbefore men 
tioned and referred to, be and the same are hereby approved. 

"3, That all objections to the account heretofore filed 
herein by The Northern Trust Company as Trustee, be and the same are 
haveey everraled and said account be and the same is hereby approved, 

"4, That said Trustee continue to keep separate accounts 
with the defendants to said complaint, other than the Executors of 
the Will of Richard T, Crane, Jr. and A. F. Gartz, Jr., upon the basis 
hereinbefore stated and approved, with respect to the income from the 
securities so held by it as aforesaid, including the income from said 
Atchison bonds, subsequent to December 2, 1937, and to collect and 
pay over such income to Emily H. Junkin quarterly, as in said Agreement 
of December 2, 1912 provided, to the extent and amount and at the rate 
of $85,000 per annum, during her lifetime, and at the same rate for 
the portion of any year hereafter, beginning with December 2, 1937, 
prior to her déath; statements of account to be rendered quarterly to 
each of the parties defendant herein, their legal representatives 
or assigns, 

"5, That said Trustee continue to charge against defendants, 
Kate C. Gartz, Franees C, Lillie, Mary C. Russell, Emily C. Chadbourne, 
Herbert P, Crane, Charles R. Crane and said Cornelius Crane, John K, 
Prentice, Charles G. King, William R, Odell and Continental Illinois 
National Bank and Trust Company of Chicago, Trustees under the Will of 
Richard T, Crane, Jr., Deceased, and Florence H, Crane, distributees of 
the Estate of said Richard Tf, Crane, Jr., or their respective heirs, 
legal representatives or assigns, the several one-seventh shares of any 
deficit which may exist om any December 2nd of any year for which such 
defendants are hereinbefore found Liable; that Charles R, Crane and 
said distributees of the Estate of Richard T, Crane, Jr, each be 
eredited by said Trustee upon their primary liability, respectively, 


~otod eoaebive at beyleoe: adawooos \Lisiiany add taal af! 20 atetee 
ered ent 28 ¢isgalod gawal auevis toll aT yd Sevate bas botebgaet enotos 
emoont eit of toegaes dj iy adnshueleh Ieteves odd of ,bisagiols es 
noliseifyge ey bus gootaual bisa yd bled eelsiaose edd mot Payless 
“com siciedatsied edaemooigs Leyovee odd yd bebivor ae,,emoont bias to 
-bevorqgs Ydoved ers omse odd bas ed ,od berzetet bas benokt 

belli suotodousrd dapooos edd of esmivoetde Lis jadl .§" , 
| eis emse oft bas ed ,eotenzt es Yugo JawT nxerldzoll elt yd atered 
beverags Ydeusd et smen ost bas ed Jawooos bisa bas beluzievo ydezod 
atawooos eetaqes good of suntisoo cogemtT Sige aad PM ny 
to aaodwvexd ont asdd ueddto ,tulelqmoo dise oF adashuereh east, at bw 
(ahead odd mogu ,.tb ,stts0 . .A bas .tb pomatd .f bandotd to Litw edt 
i | edt mort smoot edd of toogqaet dilw ,bevoz1gga bas pie wt erolednteted 
(hse mos) omoont odd guthutont gbinsevors ea Jt ye died. op, xekt-tauoge 
| bas doeLloc of bas .YERL 4S sodupve’ of Imouipoadua, .ebsod soso 
 «tapmeetgé bles ai es .yivetisup ablawl ,N yllmi.of emoont dowa teyo Yeq 
| ete ond ts bas tawoms bus suotxe odd of gdoblvowg SLCL. 9S, zedmeged, 20 
FOR eYez ome ould Jo bus gomideRLl ted gata yaumaa, 19g, 000,288 20 
eJECL gS Todupo0G di iw gatontzed _reiteeted wey Wis To aottieg. edt 
of vised tsp bexebust ed of Inmooos 20, ataemntate yidepb, xed. of. gotaa 
sovbistaseonges Lage, ated. ttored sober, bts. ett 
~hetar2 ® oRGg tens. 29 
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Z splot ,omer) estfentod dice bas east) .8 eeltedd «ons, 4 saed19H 

h atoutill Istaeatisod bas LLeb@ of madlity gastl .0 aelisdd ,eoliaert 
| to [itW odd asbew eeotenil — Lo Yegaiod gavtl baa Ans. Isnoti sil 
| to eeedudingeth .omsa) 4H eomozel bas qbogsoved.o, th, ganiex), .7 baasoli 
exto ove ooae oꝝ thet 70, a0 Th, «9Aste.07, bxoaoꝛa Diss 30, etatell. gag 
| was to gots dineyeewago Latover oy em 
| days dotsy 702 aaey Yas Yo Ba sodmpned. wag, co, tee, wam.slotiin d.bestop 
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hi gutereseugiok eVitlidell yuemtaq tledd moqu ootesrT bise yd bat tbero 





eee 10 geyitataesonge Tegel 


_ od dogo , tb ,ens7) .2 baisdoli to. stated edt 20, Reocugentane blag 


—— 

each for one-half of any such deficit, with the several amounts 

paid by such other defendants last above named, or received by said 

Trustee as dividends or income from securities by them deposited with 

or held by said Trustee from time to time, as provided by said Family 

Settlement Agreement and said Trust Agreement of June ll, 1914, That 

said Trustee in its accounts so to be hereafter rendered, charge 

said distributees of the Estate of said Richard T. Crane, Jr. and 

Charles R. Crane, respectively, with one~seventh of any deficit 

which may exist on December 2nd of any year from and after the 

date hereof, on the basis of the net income of $85,000 per annum, 

so guaranteed by Charles R. Crane and Richard T. Crane, Jr., sever~ 

ally, one-half by each, under and in accordance with said Agreement 

of June 2, 1922, and that said Trustee in its said accounts charge 

Kate C. Gartz, Franees C. Lillie, Mary C. Russell, Emily C. Chadbourne 

and Herbert P, Crane each with one=seventh of any such deficit on the 

basis of the net income of $100,000 per annum, so guaranteed by 

Charles R, Crane and Richard T. Crane, Jr., severally, one-half by 

each, under and in accordance with said Agreement of December 2, 1912. 
"That defendants, Kate C. Gartz and Herbert P. Crane, pay 

to The Northern Trust Company, as Trustee, their respective portions 

of said deficit of $88,897.01, as hereinbefore determined, not here= 

tofore paid by them, or received by The Northern Trust Company as 

Trustee from the dividends from said shares of stock of said Crane 

Company so deposited by them respectively as aforesaid, and that 

said defendants, Kate C, Gartz, Frances C. Lillie, Mary C. 

Russell, Emily C. Chadbourne and Herbert P. Crane, gets 

cefextiznte; from and after the date of the entry of this 

decree, pay, each to the extent of one-seventh thereof, any 

and all future deficits in satisfaction and discharge of their 

respective liabilities to said distributees of the estate of Richard 

Tf, Crane, Jr., to Charles R. Crane, to Emily H. Junkin, and to The 

Northern Trust Company, as Trustee, and in exoneration of the liae 


bility of said distributees and of Charles R. Crane to Emily H. 


“Bratt to etades add Yo eeoduditters bisa of eotftti 


asavoma Inteves oft dvtw ,loPteb slova yas to “Yist-eno 102 dose 
‘Blse yd beviecer 10 ,bemex oveds gasl edushas'teb reilso Mote yd Big” 


ditty betisogeh meld yd eeldicuiose moxt emoont to ebasbivih 2s Seder? 
Ulises! bisa yo bebivery es yanttt of omtt mott sete bise yd blot “to” 
Fad? ~ALOL If oan’ ‘Yo snemseigA dant? Sice bits tuemeemyA dtomelsioa” 


egieds ,borebuas 1eftsetet of of o2 etnuooos est mE setenxt bise! 
Bris 1h ,snstd .T basiiohi biee to eteted eit To wSetmditeld bise 


Stotteh yan to Aswevee-ono ditty _Ulovitesqest jemi) 1A eels) 
eet rds bos MOTT te9y Wis ‘to BAS sedmoesG no dobro Yew dotiy” 


qilitiite seq 000,888 to omocnt ton add to slesd odd mo ,tooted otsb 
~19V02 pth ,oneTd .T becifobt Sas omet .& eottatd yd’ beets ting ‘on 
“daemoomA Bise thw eonsbioovs at bas sobaw yrlose Yd Madeono yLls ” 
“egtsds sdmoooe bias ett mt esters? bisa tells baa \SSer (S mit “te” 


exaodbsiD .0 Yflmh ,floxen® .9 yu .etff2l £0 seoneyt {sited d ofa” 


eid a0 dtolteb owe yns to d3wevea~omo détw dose enstd .¢ dredior Bais” 
Be Beetnstasy ov ymmans tog 000, 001¢ to emoort ton ait “to ahead’ 


vd Aagd·· orio evilsteves ,.%% ,snetd .T prartotil bas enstD 7 eeftadd 
oSi@l 8 ‘tetlmesed To daomsowgA Diez cyt soetébrooos at bus rebar dose” 
Ysq One .T Fiedrell bas sited .0 efeX (etmaditoted Fadl °° 8) 


antokiveq ovitoaqeer thedd yootess? es .yusqmod teuvT aretitro" exit oF | 
~ored tan ,bertimveted stotsdnterod en 10,908,689 to thofteb bise “to” 
Be Yequod sawx? atoddzoll edt yd bevteset xo ,uedd yd bksy etdTos ” 
gaat bled Yo Moose to cerca bise aotl ebuobivkb oft mor? cotewz? 
$utt bas .biseetots es ylovivesqeet mars yd bedteoqed oe Yrsqaiod | 
‘9D Yrell -oLILhT .9 eeonsxT .xtusd .0 o¢ed yetasbnoteb ‘bise 
fekeg ponet? .¢ dredtel bus soxwodbato .0 yLinil gtfesenit 
aiitt to yatmo edd to etab aft aed%s oe moat greta 
qis ,Tosrtarlt dtaevereno to dasdxe alt of Nosed yysq Sot 


tedd to ogradoakd bas moitsstaktsa mt ettotteb — meng nail 
* — i 





“edt of bas qablint .H YLtnt of jonsd GH deltatO lod (20 (omer) st 
att “ost to mofistenoxe mt bas .ootantl as Yyteqmod Squo ‘gemrT prt oereddtoll tent ~ 
— ‘ot net A —— to bis" — Cot i — 


mogu eecvanat bhee yd bod ibexo 


4 > 


26 
Junkin and to The Northern Trust Company, as Trustee, for or on 


account of such deficits to the extent of fiveesevenths thereof, 
determined as hereinbefore provided, and that, to the extent of the 
value of the assets of the estate of Richard T, Crane, Jr. received 
by them, respectively, the said distributees pay to Emily H. Junkin, 
or to The Northern Trust Company as Trustee, in exoneration of the 
liability of Charles R, Crane therefor, six-sevenths of said deficit 
of $88,897.01, or so much thereof as is not paid by defendants Kate 
C. Gartz and Herbert P, Crane, or either of them, (Frances C, Lillie, 
Mary C. Russell, and Bmily C. Chadbourne having heretofore paid their 
respective portions of said deficit), and that, to the extent of the 
value of the assets of the estate of Richard T. Crane, Jr. received 
by them, respectively, said distributees further pay to the extent 
of six-sevenths thereof any and all future deficits, The foregoing 
language in Par. 5, shall not be construed to constitute a money 
judgment against Kate C, Gartz, 

"6, IT IS FURTHER ORDERED, ADJUDGED AND DECREED That said 
sum of $3,250.00, so hereinbefore found to be due to The Northern 
Trust Company, as Trustee, for additional compensation for its services 
as such Trustee for the period from December 2, 1931 to June 2, 1938, 
together with its Attorney's fees in the amount of $8500 for the ser- 
vices of its counsel from December 2, 1931, to the date of entry of 
this decree, together with its legal costs and expenses to the date 
of entry of this decree, amounting to the total sum of $11,792 0495 
be charged by said Trustee in its said account to be rendered to said 
several defendants, one-seventh to each of said defendants, Kate C. 
Gartz, Frances C, Lillie, Mary C. Russell, Emily C, Chadbourne, and 
Herbert P. Crane; one=seventh thereof to be charged to said distributees 
to the extent of the value of the assets of the estate of Richard Tf, 
Crane, Jr. received by them, respectively, and one-seventh thereof 
to defendant, Charles R. Crane, 

"7. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, and the 
Court hereby ORDERS, ADJUDGES AND DECREES, That said plaintiffs have 
judgment as at law against defendant, Herbert P. Crane, for the sum 


2* 
MG to sot eoodanal: &S qYyiaqsod teuiT axed 01 eat ot bos ablayt 


” ands addacver-evit to dustxe aft ot attokieb dose. to tamooos 

» os Yo towdxe oct of .tats bas ,bebkyow exctedniored es bontaseteb 
.- bevbeost y ch yenaxd .T busdots to edetae ond to ateses edd 20 enkav 
hiant .u yitmd oF Yeq sestuditielh bise odd yylovisooqeos, weds yd 
edd Io soivevenexs ak ,eoveusT as Yooqmod Jawal mzoridu0ll esiT oF 10 
tiotied bisa le edéusves—xie yzoleted? eusx) .& reliadd Yo yWtitdetl 
eed ainabaoieh yd bhag Jon ak es Jootand dowm oe 20 410,198 <68% to 
e@hilhl .9 aeorexl) ,medsd to terldte 16 ,enst)..f dueduell bas sfasd,.9 
tied? biaq evoloteted yaivad enwedbadd-.9 yilui bas .ſosaun.d Vasu 
edt to taetxe off oF gist bus ,(siolieh bisa Io emolisog evitooqest 
- Rovisoet .4% y9ar9 .T huacit ti 10 efaies edt to etoags edt to exlev 
Suedxs ovit of Yaq teddavt soetwdbisvalh blew qylevitooqeont madd xd 

— eff .ad¢ielieb omsut Lis bas yas Yoo1Vsdd eddacvee-xte to 
Yssom 6 etutitenoe of beyrtaneo ed goa Ifada ,2 ,teI af egeugasl 
sSitad .5. etek gectegs saomgbut 

‘Mee duc Ha Ea MN IR AE Eh | 
o) Mtedgcoll eit o¢ eub e¢ oF bawet exciedmtered oa —— 
sesivies ati 101 aoitsaneqmos Lasotvibbe 10% ,yootamit aa, yiaqmod tant? 
BERL, Sf sae oF IEG .8 wedupced mort hokieq ed} 402 estemzT cqwa es 
392 edt 102 0063 Yo Jnsomm ody mL 2oed a YoMIOITA ath sidiw todtogod 
20 Yisdue Yo oFad od OF _LhQL yS redweosG mort Leznyoo att to 2eotv 
etab ait of esasegxe bas ajaoo Lagel eth ddiw wsddegos,.so1seb ebis 
sheSQU elie to sue Latod edt of yaliavons..o0190b aids Jo yidae ‘to 

bisa of bersbaes od of Jayoogs bie edi ah eotens? hisa ys begtatio..od 
o3 sisi ,edaebneish blse to doses oF sdimevenmong ,etusbasteb Lexoves 

bee _stgad 
geotudissaih bise of bogiuie.od of Aestedd Adnevee~eno. yong ..4 suedzsH 
»T bade to stsfze sid Yo afeaza odd Yo ewley edd to Instxe suid oF 

.. Roeteds dAineves-one bas .ylevisooqeot ued yd bovieges, oh gonet0 
dat od bets paste 5 oo (novia Sao 9k redaad® giqebastob (ot 
—* bas aaosc Sis, cana <coumaasio auram BEBE ow" pense 08 


svad etitiaisig bisa tell .BUMIDAd GA Daran «BI80H0 ota $09 
mre oft tot ones) 4.4 drodveH ,inebaoteb terikegs wal ts es trom 








= 27a 

of $27,752.84, together with interest on $26,068.20 thereof from 
December 2, 1937 to date of payment, and that plaintiffs have 
execution therefor, 

"8, If IS FURTHER ORDERED, ADJUDGED AND DECREED That 
unless the respective shares of any existing deficit, computed as 
hereinbefore stated, of said defendants, or any of them, as of 
December 2nd, in the year 1937, or any year thereafter, or upon the 
death of Emily H, Junkin, be paid to or received by said Trustee 
out of dividends or interest, within sixty days after written notice, 
from said Trustee of the amount of such deficit, said Trustee, or 
any party in interest under this decree, be and hereby is authorized 
to apply to this court for further instructions and directions with 
respect to the enforcement of the findings of the court herein with 
respect to the control of said trust funds for the purpose of satisfy=- 
ing the obligations of said defendants, or any of them, with respect 
to such deficits. 

"9. IT IS FURTHER ORDERED, ADJUDGED AND DECREED That this 
Court retain jurisdiction of all the parties to this cause of which 
it. now has jurisdiction, as aforesaid, and of the status of all the 
parties to and the subject matter of this cause, for the purpose of 
providing further, if necessary, for the execution of this decree 
and the enforcement of the respective liabilities of the parties hereto 
and of determining the amount of future deficits, if any, and for the 
purpose of further directing or providing for the payment thereof by 
the respective parties hereto and their respective heirs, executors, 
administrators, legal representatives, successors or assigns, who are 
hereby or may hereafter be found liable therefor, 

"10, Any application made under the provisions of para=- 
graphs 8 and 9 above may be made by summary petition of the party 
making such application upon such notice to the remaining parties 
hereto as the court may from time to time direct, 

"11. That The Northern Trust Company be authorized to apply 
to this Court from time to time hereafter for instruction and advice in 
the performanee of its duties as such Trustee and that any of the 








_is- 
BOLT Loetesd 05,800,053 ao teetosat ditty sromdtegot PSSEI ISH to 
evad eTidvaiste daus fas aoxsaq ‘to otab os weer eS redueod 
) «totoxedd uo uoexe 
Sol? unadsa CHA GEDCULGA .dasMGAO sSEHRAUT el Tr 8" 

ae bedpaugo ,stotteb gatselse Ys 20 settads ovisoeqeot edd ——— 
to es meds to vis 10 ,asasbrioteh bise ‘to abotade orotodatored 
* soqu 10 ytoftsoreddd 188% Wis so ,JECL rs9y ‘eal at onal ‘redmoed 
estan btee yd beviesot to of bksq od J — “to ataeb 
eye nod g Law 2909's ayeb Wale ateld tw eovedat ‘to abiobivtb' 10 3 30 
_ fo ,eedentt Sine ot Spttob stone 20 aauons exis to sotensT bise govt 
pinion el ydored bas od — eld obras seoxedut wt wie vs 
ad tw sett gots bas eno tout ent wody ust 10% — 2* andt of tans ‘od 
sh ke ateted s"w09 odd to aattam ext to Jasmeo10%© ‘odd ‘of ‘Fooqeor 
“vie tise to ezoq ing oti⸗ 02 ebrust seuat bisa to fousnes edd ‘ot “Yooqaet 
tooqzet ad bw r_ guna to als <0 ) sedaabun to bise to anoidagiido odd ua 
. —7— — ————— ove ce 

aiid tad? auundac aua GRDGULCA aamano saa eX TI Ks — 
olde to oauso alds o¢ aoltisq ons Ils to sottotbs bast, atsion ro 
end Lis to andate edd to bas btazor01s: as erotiotbe fat tae bent 
tee —E edt 10% eenes e bets ‘to ‘relict Sootdie orld tks ts etitsq 
ip " eex9eb eldly to mottwoexo esid 10% —— creda? ‘qalbiver: | 
otered setiaq ont to aoldiiidelt evitooqest ond ‘to dnomsosotae rg oe 
edd 10% bas wus 11 sed toriob omg to Jawons edd satntmrod ob io 
xd tosreds Smouryag ont “sot pathivorg 10 yatsoortb ———— ws : snoqug 
42 108.499%9 ertorl evidoogeot todd ‘bus ofersd seks aag “ovij oequex A⸗ 
eta ocha angers 10 etozseooue ‘qrovbtadasaongen “fagel eetotonde bai 
toRerestd edit bruot od ——— Ysa 0 —— 
=s129 to ‘esoteivorg « oat “wahen’ ‘ebam soit sdtlqqa’ wih ate 


| Wg oe Yo olitveq ‘Yramus Yd obs od Yau eveds @ bia 8 ‘dda, 


i 1%. ett 





hi moie raea —— odd ef eolioun dum Hogs — sto 

| al AF OP cae GP kath 
Wags ot bos taedaus od bare ashy Jenat sredizoK edt Sat —— —— 

ak sotvbs bre sottouttant ‘xo? ‘tet bsoredt oat oo onu⸗ ait S09 ‘nth ot 

| edt “To ‘ae als ha estan dows as —— * — * ome hag 


LSHVLO 4 
b v8 Be Ore 


— 53 








~25— 

parties to this cause be likewise authorized to apply to this Court 
from time to time for instruction and advice as to their respective 
rights, liabilities or duties by reason of any of the matters herein 
mentioned or referred to, not herein and hereby adjudicated and 
Getermined; and the Court expressly reserves for future determination 
the question of the rights of said Exeecutors of the Will of Richard 
Tf, Crane, Jr. and defendant, Herbert F, Crane, respectively, with 
respect to the disposition of said 1,000 shares of the common stock 
of Crane Company bequeathed by Richard Tf, Crane, Jr, to Herbert P, 
Crane, and by said Executors withheld from distribution in accordance 
with the Grder of the Probate Court of said Cook County, in the 
Matter of the Estate of Richard I. Crane, Jr., with leave to either 
of said parties to apply to this Court for further order with 
respect thereto." 

The following is plaintiffs' theory of the case: "As to 
the distributees of the Estate of Richard T. Crane, Jr., and Charles 
R. Crane, plaintiffs' theory of the case was that while they ree 
mained severally liable, each for one-half of the deficits in Mrs. 
Junkin's income, The Northern Trust Company as trustee had the right 
to collect from the various members of the family the amount of the 
various deficits in Emily H. Junkin's income for which they had 
respectively assumed liability under the family settlement agreement 
in the complaint and above referred to; that not only had Richard 
T, Crane, Jr., and Charles R, Crane assumed a personal liability to 
Emily H. Junkin for the amount of said deficits, but that under the 
so-called family settlement agreement, and related documents, the 
four sisters and brother of Richard Tf, Crane, Jr., and Charles R. 
Crane had assumed a personal liability for their respective one=- 
seventh shares of such deficits, and that both Emily H. Junkin, 
and The Northern Trust Company, as trustee, had the right, as third 
party beneficiary under said agreement, to enforce the liability of 
said four sisters and brother which they had thus assumed in their 
contracts with each other, and with their brothers Richard fT. Crane, 
dr., and Charles R, Crane, Plaintiffs further claimed that the 








dwwod eit ot yeas ot bes rtoditns se hiredt2t ed ‘oaifed elt ot —E * 
evitseyeou «keit of ea solvis bine dotsoudtent ‘sot emt of oft? mort 
ateryed esodianm efs to yas to aoaseon YS eoliub 20 welviticsst edighs 
brs Betcotiutbs ydetad bos’ nteted son ot boristen’ 10 — 
soLtstterstoh oudyt wot esvioues Yfkeetqxe ode odd bas ybentarre 
buasofi to LLRW ett Yo edoswooxt bkae to etdyle’ edd Yo aotteenp ewp add 
tte ,yfevissoqeos .onst) .1 drodubit ytnsbaereb bas $xt wes * 
siooté eames eis to sersHe 000.1 Bist to moti Peoqe tb ot od tooq 
“(@ duodrell oF 2% poled .T Dunsfokt yw badtsetped yasqmod eno ners 
goushtosos at moti sdLateth ont — — * i 


— * 








‘ordtte OF evsel Aviv ,.4% ,onetd pore et to Sdstaz et — 
fittw reobhero wedt«st ct wo⸗ abit os “unas oF * —— bisa to 

| “Wofexodd tooqess 

oak" eens ads to tosis “HEAL, es gabebttee eae” vzut 
eoliaid bas ,.T ,o0sT) .T busdoli to sistel edd to dedudbitelb odd 
wor Youd oLbdw act saw seco edd Yo yxoods 'eTritatile yeast? .ñ 
“$e ak edtotied ccd Yo Matisodd wt soso otautt YLtstovee bontan 
digits edd fad covanxt as ynteqmod tent? axedsto edt qomioont 21 auboloust 
eid 10 twos ond yLtnit edd to exediiow etotiey ‘odd moet feotioo of 
‘bad yodd dotdw tot Smoot atdisint’ A yin at —— —S 


ne Ct: DR 


Ynomsergs tnemetivoa Lins? ony tobe Yitidatl ‘bemvees evisooqeet 


bradot bad yoo Yor faly pot Bewsotes ‘veda bas! Sal st gmoo odd ‘at : 
Gt UWttdotf fertonzéq os homes enced ‘eeltadd bas gto! “Me a oust) .7 ™ 
“odd “tobaws fadd Sud edtotted Bike YW davoms edd aot — “it abt 
dui edmemived béfatéx as Ydemooiys Yasuely — 

aolaedo baa y.ut yocaud \Y bustobit t6 ‘eilgoud bas ered ie aod 
— — —— ttodd tot Wilkes! Lonoa 194 s ‘bomisea & bad pare 
TB Le Fe a 


“abiant if yttowt dived tadd bas sedtotiod dove to episde dt 
baliit ca \sdghx Say Bad .beraway es naga faur? — cis 


ie ate i, 





—— V fe 4 


Yo Yititdstt and estos of heaong⸗ Ese 
qhontd ak bedweee Gedy Bad” yon” monty’ — bcd a uo? bse 
es T bravolh aredttord ateutd iy Bas tents aos 
‘pod dad} bombsto tedden? ertidasata”” * 








<2}— 
reduction in Emily H, Junkin's guaranteed income from $100,000 to 
$85,000 inured solely to the benefit of Richard T. Crane, Jr.e, and 
Charles R. Crane and that the liabilities of the four sisters and 
brother should therefore be determined upon the basis of a guaranteed 
income to Emily H. Junkin of $100,000, and not upon the basis of a 
guaranteed income of $85,000 upon the basis of which the liability 
of Richard T. Crane, Jr., and Charles R, Crane was to be determined, 
Plaintiffs further claimed that A. F. Gartz, Jre, as assignee of 
Kate C. Gartz, was obligated for Kate C. Gartz' share of the deficits," 
fhe following is the counterclaimants' theory of the case: 
"The counterclaimants, Charles R. Crane and the distributees of the 
estate of Richard T. Crane, Jr., deceased, claimed that while Charles 
R. Crane and Richard T. Crane, Jr., had assumed a personal liability 
to Emily H. Junkin for any deficit in the amount of her guaranteed 
income = each for one-half thereof - nevertheless under and by virtue 
of the family settlement agreement and related decuments Richard T, 
Crane, Jr. (and to the extent of the value of the assets of his estate 
received by them, the distributees of his estate) were obligated, as 
between Richard T. Crane, Jr., and Charles R, Crane, for six-sevenths 
of the entire amount of such deficits, and also that as between Charles 
R. Crane and Richard T. Crane, Jr, (and the distributees of his estate) 
on the one hand, and their four sisters and brother on the other hand, 
said four sisters and brother had assumed fiveesevenths of the lia- 
bility for such deficits (each severally to the extent of one-seventh 
thereof). Counterclaimants further claimed that therefore, as between 
them on the one hand and their four sisters and brother on the other 
hand, the primary liability for five-sevenths of the liability for 
said deficits rested upon the four sisters and brother (severally to 
the extent of one-seventh each), and that they had the right to compel 
the said four sisters and brother to perform their respective obli- 
gations to Smily H. Junkin in exoneration of the liability which 
Charles R. Crane and Richard T, Crane, Jr., had initially assumed to 


the said Emily H. Junkin. Both plaintiffs and counterclaimants 


rare. ~e 

oS 000,00L8 mort smoont bestasiceg 2% artalnnt J Let out notd oubot 

bas ..Tt _ ont 20 »T batadota to $ktomed odd ot YLleloa bout 0004884 

hss aren a tot edt to asitiitdelt Read: auld⸗ bas — vi eofxaitd 
beetnetssy | 8 to alasd only moqus beatumretob ed extort biwosta aoddord 

& to alasd edd moqy toa bas ,000,00L% to mblaxt oo Vital ot emoost 
yitlidelt edd dotdw to stead ost sou 000 «28% to emoost beodusteiry 
sbeniarretob od of caw onaxd .A zelasdd bas ge tl oaend * —— to 

to osmpivees 2c ..th gatusd ,7 oA Fasld beuttsLo noctd un niantera 

"ad boktob oft to orssde ‘sdga) .D egsX tot bes sgiido aaw ‘atts * ofa 
29269 ads to ytoods 'etnsmtsiotesawoo edt at patwollot oat —2 sis 

edd to acstudiyeth eft bas omar? .f aelradd .etasmtsLoretaaoo ext 
asfiedd eftedw tadd bomtsio ,beaseneb co% goats «7 bradota 2 ‘otsdee. 
UWilidell fanoe1sq s beeees bad got ometd m, bracoan baie ens oe 

i heeinetsng ied to dawoms odd at ttolieb yas tot abla, aE — ot 
| sutiiv yd bus vehan seeledsreven ~ looresit —E ‘mo? Hose * 5 
| oT Dtasoli edmemusod betelLet bas Shomeetgs jnomeLItea vee ond to 
| otates etd to atezes ext 0 onlay oft to taedxo oxi 0 bas) att “yeas 
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| adinever=xie 101 cnet) «fl aoLtasid bats gett eus ad brunsdo bi mosuted 


5 thn, ng Net 


eselredd neended ae tedd oals bus set Lottob dome to aunoas ortano edd 0 
b (egstee eld to seetudtite lb ody bea) th 98819 * bandon bas xpd of 
|  qbsed aedto edt mo reid oad fas atet]te ive? akedt bas Laan eno orld 9 
| ~sif orld to acidaeves—ovlt bemsees bad “todvomd bes etedets suo bise, 
| dinever-on0 to tmetxe od ot VLLaroves dose) adtotiod: douse 0} White, 
sogwied ea ,e10Totesdd sont ‘benttalo can aurr aanonte loneaaued ——— 
xedto oft no wedded bus esotele aot tieddd bas bad ono osid sto wor 
| 10% uiilidelt oni 0 addnevee~ovi? cot WELtdstt sata ont buat, 
od eListeves ) teritord bas anotete 0% ox ogy betes edtotteb bkae 
Loqmoo of taigta oxy bei yosts sont brs aose idnover-aa0 to daegxe, oud 
~bido evisoeqaet sheds aroꝛraog os rostord bas aredete wo? ‘bias oft 
_fobdw yilidsif edt to aora oaoaone at atlas iH vita ot emotiaa 


ot pemuees VWlets tat bas — omen 2 brass bas ass), J — 


EAS oF cheney 





fy 


v sstalaait iten bisa 
ae tane Gta ae 





— 

{italics ours] claimed that it was not necessary in order that 
the liability of the four sisters and brother be enforced that 
the deficits be first paid to Emily H. Junkin either by Charles 





Re Crane or by the distributees of the estate of Richard T. Crane, 
Jr., deceased; that all of the parties in interest having been 
brought before the court in this action the court had full jurise 
diction to determine and adjudicate their respective obligations 
herein, Both plaintiffs and counterclaimants [italics ours] claimed 
that the reduction in the guaranteed income of Emily H. Junkin from 
$100,000 to $85,000 inured solely to the benefit of Charles R. Crane 
and Richard T, Crane, Jr., and his distributees (to the extent of 
one-half each) and that the respective liabilities of the four 
sisters and brother should be enforced upon the basis of a guaranteed 
income of the full sum of $100,000. Both plaintiffs and cross 
complainants [italics ours] also claimed that the jurisdiction of 
the Probate Court of Cook County in which the administration of 

the estate of Richard T. Crane, Jr., was pending at the time of the 
filing of the complaint, was inadequate for the determination and 
adjustment of the rights and interests of the several parties to 
this action, and that, therefore, 1t became and was necessary to 
invoke the jurisdiction of a court of equity for that purpose." 

The appellants state their defense as follows: 

"(1) No personal obligation is imposed upon any members 
of the Crane family, other than Charles R. Crane and Richard Ty. 
Crane, Jr., to pay any deficits occurring in the annuity funds for 
Emily H. Junkin under either 

"(a) the agreement of June 2, 1912 * * *; 

"“(b) the agreement of June 11, 1914 * * *; 

“(c) the addendum to said agreement of June 11, 1914, or 
Exhibit 'E' referred to in said agreement; or 

"(d) the agreement of June 2, 1922, * * * by which the 
annuity for Emily H. Junkin was reduced to $85,000; 

"(2) that, by the execution of the addendum * * * the 


i) ‘ 


— 
$edt t9hse at yiseeogen Jom esw JL dadt bomtslo ſ auuo eotlatt). . 
tadt beoroine od tedgovd bus atodate wot edd to yiltdsll edd 
seLisd) yd teitie abiowt .H yLimi of bheq Jeri ed ettotieh edt . 
<90a02 .Tf Sussoif to otatee eft Io eootudlataib edt. yd toons of. 
used gcived dzetetat at eotiasq eff to fis tads jhouseoeb W 
7 ~ainwg {fst bed tayoo ois moltos elds at dives edd exited tdguoud 
| atottegtico svitoeqeot atedi olsotbstbe bug entameseb o¢ moltoth . . 
- bemtsle [amo eotlstt] sduembelozosnuos — 
dennis, Asie ant ibn ane: 
| enet® fi salted Io thiensd add of ylolos, bommt 000,%8% of 000, 001% 
| to dnetxe edd ot) aeetuditielh ated bag ¢.th ,20e70 «f btadoti bus» 
; 
| 





wot edt te eeltiiidatl evisosqeer eft Jait bas (dose tlad-sno | 
I beoinsisig 9 ‘to alesd old mogy beetotme ed blvode telteid bas etsgele .. 
ag0re bas eiiijatele gos .000,001% to mpa Lint eit to emoomt 
Ro moktohbetuvt eft tod Semtafo oats [etwo aotistt) gdmantelqmoo., 
(Yo motieieiniads edd dotew at yWawod Aood to tno ebsdoxt ont. 
edt To emis oly da satbriog ecm ,.1b ,omeT «Tf huedolf to edatao oft. . 
bis stoljianimiedeb eid tot elsupebsnt aesw ytnisiqmoo add to yabitt.. 
of aelizeq Isrevea ont to efacretat bas eddgta oft to doomtewtba .. 
ot YIseceosd asw bas smuoed th ,ototeteds .tedt bas .aolies akdt). 
",esoqusg tadd rot yinpe to daweo s to moltolbehwh edt exovat 
tawolfol as eensteh afedd edjete etmalleqgs oT. «9 =) mm 
exeduem yas aoqy beeogml el soliaghido Iaaeessq of CL)". - tae 
«2 btadolh bag snexD .f e2eltedd aeld toto yyfimast ene? edd to. 
tet ebay YStonns oft ak gairumsc etiotiod yas Yaq Od. g. Tl <ometd 
os reigte tebay mblow. H yLtel 
} | 1 —— <add 
> * * LAL LL emt lo tmemeetgs end (d)" :. 
| 0 water eit eapl to dnemsotgs bise of ambaobba ent 9)" 








10 yinemooms Blea at of bovieter 1a! danas» —* 
orig: slotin ya. * * % _SSRL 4S eauſl. ao dnomegm~s el (BY oy ont > 


odt * * * x ih Sa — (eid YC aci⸗ SBM reo Hien ely 





= 3 le 

other members of the Crane family did not assume or become bound 
by the terms of said agreement of June 11, 1914, except for the 
limited purposes specifically set forth in said addendum and 
Exhibit *B'; the limited purposes specified in said addendum, 
which are germane to the issues, being as follows: 

"“(a) Being stockholders of the Crane Company, they 
agree to be bound by the terms and conditions of the agree= 
ment of June 11, 1914, so far as said agreement affected the 
Crane Company or themselves, as stockholders; 

"(b) that they, in compliance with the terms of Article 
XI of said agreement of Jume 11, 1914, will execute and per= 
form the agreement contained in Exhibit 'E'; 

"(3) that the sole obligations, which are germane to 
the issues here involved, imposed upon the other members of the 
Crane family under the provisions of Exhibit 'H', are to cause to 
be transferred and delivered to The Northern Trust Company, as 
Trustee, 1,000 shares of stock of the Crane Company, to be held by 
said Trustee during the lifetime of Emily H, Junkin, subject to the 
following provisions: 

"(a) From the dividends thereon and the income from other 
securities, the annuity payments provided for Emily H. Crane 
under the terms of the agreement of December 2, 1912, were to 
be made; 

"(b) Oneeseventh of the sum necessary to make the said 
annuity payments to be taken from the dividends received from 
each 1,000 shares of the stock transferred and delivered to 
the Trustee; 

"(c) fo pay over any excess dividends not required for 
said purposes to the person who deposited said 1,000 shares 
ef stock; 

"(d) The Trustee, upon the death of Emily H. Junkin, to 
retransfer and redeliver the said 1,000 shares of stock to the 
person so depositing them; 


lem 
based emesed 10 samaas Jom bib yikact ens1) odd 20. axedmem tedzo 
sit 29% Sqooxe ghL@l .il emkl to Jaemeige Shee Yo. amred odd yd 
has wubaebbs bisa at dire't tee yLiaeliteeqe sezoqwq bod karl 
+ -itehaehbs bise at bekikeeqe esxoqumg bediakl odd g'S! dkdtdxil 
t sewollot ea yaied .asueelt eit of onamiey ots dokdw 
yous ,yaagmed ennw sit to esebloddoote- gnked (a). | i .woxd 
setga ot te eseltibaes bus amxed od} yd bawed ed ot eomgs.) (> 
id Bedostis duemeotys bist 2s tat 08 gNOL gil envy to Saemo so. 
9J wi Ay  gatebloddeote ea ,eevloameds to Yasqmed ome) 
« MOkGaA Bo amred ont ddtw eoaskiquoo at yyeds tart CE" ooo of) 
~iaq bas eduooxe Liiw ghM@l gil emul to Jnomooigs bisa to Tk) 
3H! Sidi wt bomietaoo Jaemoeiy, add otot.... 
OF enssreg o%6 doldw yenoltagtido eloe.edt gadd AEM oot te 
eid Aã 
Od ⸗eac of 916 Id dal Yo emoietvorg edt reba yLbas? ems 
Ba guage) gaat aveddxol of? of bewvtleh bas bottetansxdcad 
yd bled ec oF gyusqitod origi) edt to algede Yo nouede QOOgf yootanT - 
odd of voogdwe giisav . vilmi te emiteiil edd yatwh sotesd? Ghee 
tediq mort euceni oft baa nostedt ebaebivib edt gott Lao wyos nice. 
orst3 oH yLiwi roi bebiverg etmemyeq Wainess odd ——— 
ot ouew ,Sf@L ,S tedusce to Jnomeowgs edd to emsed, edd) tobay 
biae “ Mom of Yieeecqun meas to —W 4a nO etd “te 
Mott bevivyot ebnebivip ont worl soled od of etuemyag ——— 
ot bevevilob bas bovivetensid doose add to seuade O00—f dope) ) 0) 





\ gol bexiupe Jon ——— 22009 Ys TevO Yeq 5 a oy 

i eevee 900.1 bis2 bed teogeh odw moateg edd od aezoqumy bias 
F @ ot od borne ‘te 4 geen e 
ot gst: sone — 

| eid of Lode Re gerade 0909h biew, ec Rann OE 


32 
"(4} thet the following provision of the agreement of 
June 11, 1914, Article XI, 
wie % # therefore the said Kate C, Gartz, Frances C. 
Lillie, Mary C, Russell, Emily C. Chadbourne and Herbert P, 
Crane do severally agree to pay, on demand, one=seventh of 
all money which may be due and payable under said agreement 
of December 2, 1912,! 
is limited and controlled by a subsequent provision of said agreement 
(Article XI): 
“*tShould the dividends and income received by said The 
Northern Trust Company, as Trustee, from the aforesaid 6,000 
shares of stock and the $173,000 face value of First \ortgage 
5~1/2% Bonds * * * be insufficient to pay all moneys which are 
due and payable under said agreement of December 2, 1912, the 
brother and sisters [the other members of the Crane family] 
of the parties hereto [Charles R. Crane and Richard T. Crane, 
Jr.] severally agree that they will each pay to the "high 
bidder" [Richard TI, Crane, Jr.], on demand, one=seventh of any 
sum which the "high bidder" may be compelled to pay to the said 
The Northern Trust Company, in order that he may fully perform 
the terms of said agreement of December 2, 1912.'; 
that said provisions were merely an expression of an intent on the part 
of Charles R. ‘Crane and Richard T, Crane, Jr, that the other members 
of the Crane family should assent thereto, but that the other members 
of the Crane family did not assent thereto in the limited obligations 
which they assumed under the addendum and Exhibit 'E,' If, however, 
said provisions were imposed upon the other members of the Crane 
family by the addendum and Exhibit 'E,' it was a secondary liability 
upon them, conditioned upon the ‘high bidder's' being first compelled 
to pay to The Northern Trust Company, as Trustee, any deficits 
occurring in the annuity; that, until the "high bidder' was compelled 
to pay said deficits to the Trustee, the secondary liability of the 
other members of the Crane family did not arise; 


| «Sir 
i to cromeewys afd to notalvesq gatwellok edt daddy. GAM go) 
aX efotita y MOL . Lf onul 
| oD Geansth yatta .) etal Sise edd eroteteds * Ht BM. boy pues 
| od guoducl bas enumodbasld . Lisi _ifezem .0 Yue gehlLhh » 
A to djreves~one ghitemted Ao ,.Yeq of eetgs Yllgueves, ob efat). >.) 
snemeetgs bier ueban sideysq bas eub ad yam sdotdw yenom IIs 
| | | , ',SIQL 4S tedme29d 20 


iy 
-—« themeoTgs Siva to aeletvosg dueupoadue s yd bellettaoe bas bettutl ek 
li ami bisa yd bevisces emeomt bas ebaebivib ods bivodia” 


400. Bkevenota odd most _sotewel as .Yasquod Jawx? arads rol 
— egagixo0! Jer% to owiay sast 000, Vα edt bus date to.ecounda 
eis doldw eyesom iig yeq od tnelolTiwaah od * *.* ebmod 88\l~-2 


ot .SIQ@L .& tedmecst lo duemes1ys bisa rohan. eldsyaq:baa.eub oii 
(yLlmei ener) edd to svedusm wedge edd] arevate dae steddeid.... 


(8s .2 Heeioll bas enet9 .H aeluad—) odeted aetdusq edd 20. 9: 
| gis ed? of Ysq Asao Like Ye? stadt coma nidoreves (ethan 
Wis to dimevecwono .hnomeh ud .f.2b pened? oP baadetd) rebhtd 
bisa edd od yag ot beLisamoo od ves “webbid dgbd" ody ulgdete came 6 (0% 
mselreg VLiel Yom od Jecly tobto at qyaegnod Jaux? aredssoll edt 
| {'.SL@L 8 sedmeced to daomeetgs, bisa Ye emzep eds _. 
| tasq old oo inedat ss to soLsadique as YLeten otew emoteivowq.biee tadt 
—seetedmom xesito ond tad? ot yout) .f Ptadeld bas octatd· ao aacid to 
 -eteduem sedjo oid Jadt tad ,otoveds Jneaas bivoda. yilmst enst0 edd to 
anoiiagiide bestmts odd at ofozeild snoses gon bkd yAtma? emamd eld Yo 
| 





gievewod ,If ‘LH! sidivx® bes ambaebba edd t3ebay bemmmes yedt dotdw 


exist end to exodmem tendo eft moqu beeogakt otem emotetverq bise 
WiLkdsil yrabmooes o eat TL 14H? stétdxi bas ambsobbe edt yd yLtmst 
boLtoquns seat? gated ‘elaebbid dgtsi' edd aoqw benets thao amen aoqu 
etiobioh yas ,ooteust es yywisqaod Jens mrodtrofvedl, od,ysq ot 

_— bekLequos aay. *xebhid dgtst edd Ltias todd aydivene odd mt gakri990 
} eis Yo yiltdslt yrabnooes ond ,ootemit eds. of adtotieb blse.vsq of 


jeetsa Jom bLb YLtme? ener exh 20 exedmem terito 
ae 


-33- 

"(5) that the 'high bidder' alone, after being compelled 
to pay said deficit to the Trustee - if there be a secondary lia- 
bility — could bring a cause of action against the other members of 
the Crane family, but, since the pleadings contain no allegation 
and the record is silent as to whether or not the ‘hich bidder! has 
made any deficit payments into the annuity fund, the prerequisite 
for his bringing a cause of action against the cther members of the 
Crane family does not exist; and, under no circumstanees, could the 
Trustee, Emily H, Junkin, or Charles R. Crane and Richard Tf, Crane, 
Jr., jointly, bring a cause of action against the other members of 
the Crane family, as to the annuity deficits; 

"6) that if a secondary liability is imposed, the limit 
of the other members of the Crane family is one=seventh of any sum 
which the ‘high bidder’ may be compelled to pay on account of the 
annuity deficits; that, under the provisions of the last paragraph 
of Article XI of the agreement of June 11, 1914, the maximum personal 
liability of the ‘high bidder' (Richard T. Crane, Jr.) was to pay 
six=-sevenths of any deficit occurring in the annuity fund, and that 
the secondary liability, if any, of the other members of the Crane 
family to the ‘high bidder was limited each to a oneeseventh of 
six-sevenths of such annuity deficits; that, since the agreement 
between Charles R. Crane, Richard T. Crane, Jr. and Emily H. Junkin, 
dated June 2, 1922, reduced the annuity from $100,000 to $85,000, 
the personal liability of the "high bidder' from June 2, 1922, was 
six-sevenths of any deficits which might arise, on the basis of an 
$85,000 annuity; and that from June 2, 1922, if any secondary lia- 
bility is imposed upon the other members of the Crane family, it is 
limited to a one=-seventh each of sixesevenths of any deficit arising 
in the $85,000 annuity fund, conditioned upon the 'high bidder's! 
first being compelled to pay such deficit to the Trustee, for the 
reason that the agreement of June 2, 1922, specifically reduced 
the obligation of the ‘high bidder' under the terms of the agree= 


ment of December 2, 1912, to contribute to any annuity deficits 








— 
bolfeqmos gatect isfts ,enola 'tebbid dy tilt oft tant cen 

«sil yishnooss 2 od otecit ti - setasiT off ot tlotteb ‘Dise ysq ot 
‘to evedmem coddo oft tentays moltes To eanas s gitad biuoo ~ yWltd 
Noljagetia on akstioo egaticelg oft Sontd ted (yt? ener edt 
wend 'xebbid dois’ off tom to redvendw of es teette ef broder eit bas 
ofielsperssq sat yhant yinnns odd odmt etiemyag trofteb qwrs ebem 
sit to arsdsiem toto ost tanksas mottos ‘to taxdo's gutgntid eth «0% 
edt Biro .acenstamorto om tobay .bas ptetxs ton eooh YIhist Smetd 
,o2T2 .T busdolA bas one« .A eeftadd to yabinwt .H yebatt eootenr? 
to evedient terito oft teantajs mottos to samvo B gatad yylsntot ..2b 
tetiotteb yineuts eft Of es p¢Limet smb1O ont 

SimkI osf? yboeogmt al YILLtdskl yeahtoos’ s “TE faite” (BP 
mie Yte to Mnever-eno at yLkust emetS odd to eredaibit reddo"edd to 
‘odd ‘to tawooss no Yaq oF bel feqmos od yar *obbid HyLH" “edly ‘slo teiw 
dgetyorsq d2at ant Yo anotetvorg ody wobatr tadd pettolteb Yt tens 


femberod stmtcom off ALCL II cavt to dnoméedgs eff to°RKeloifta to 


vag oF asw (.20 ponet) .T beacon) trobpid aysd Say yEtrasts 
feild bas phot ye temeo ont at gabemss0 Shotteb Utd to eilftievoexte 
ens%) elt Yo eredmen torlto ond To yeas Tt YLLLGahe yrabadese edt 
“Go Admevee-ono 6 of oss bod ther saw Trepbld agit” edt oF yLtmes? 
dnemoergs oid sonte .tald pedtorrob ydtanas dove 1 tddadvee-xte 


abla .F yh Bos oot pemerd .T panied \ oer" iat 26Eckdd bended 


,000, 282 of 000,008" mort qWinens off beouber (SOL ys waht Desks 
dew ,SSOL 8 onvl mort txebbid dated! ents Yo YPeELdssl atoeweq’ oft 
“de Yo etend orf ao oetes ijim dolitiy attorteh Yuk’ to ittimeveeluke 
- mahS yoebaooek yts TE .SSOe ,S Siw mort sHMe hoe pee Reet 000,886 
at 3% ,yfime? east ont to eredsiom tense ent nog bedoqut EP yrHie 


gntelie tEerIob yas Yo adwevek-xte Yo Hoes HéMeveesemo se oF Dot tmtr 


‘gl qobbld nytd’ edd moqer Bedtotd theds gba yf knees 600,868 edi itt 
eit cot ,codebeT add of SROMSB Hoke Ysq of BSECSqmod yrtfed Feths 
— vttaorꝛtoae «SSO ,S entit to fuomootgs oct galt moasex 

" moougs elt ‘to emred ond zebnut *aobbkd daft oily “t6 aobisgiido edt 


ettotteb ythmuis yas of edudtzines ‘ot “ster * — 0 dam — 


~~ 
arising on an $85,000 annuity rather than on a $100,000 annuity," 
The agreement of June 11, 1914, between Charles R. Crane 
and Richard IT, Crane, Jr., with the “consent” or “addendum" thereto 
signed by all the other members of the Crane family constitutes, 
in our judgment, a family settlement agreement. By the will of 
Richard Tf, Crane, Sr., certain provisions were made for his widow, 
in addition to the provisions made for her by the ante-nuptial 
agreement. It is a reasonable inference, from the record, that 
the provisions made in the will were not satisfactory to her, and 
Charles R. Crane and Richard 7, Crane, Jr., who were made the 
residuary legatees of their father's estate, entered into the con- 
tract with her of December 2, 1912, by the terms of which the 
widow received substantially more than the ante=nuptial agreement 
and her husband's will provided for her, in consideration of which 
she accepted the provisions of the will in her behalf and 
ratified the marriage settlement agreement. As appears from 
the agreement of June 11, 1914, differences arose between 
Charles R. Crane and Richard T, Crane, Jr., "as to the true 
interpretation of the provisions of said Will, and as to the future 
conduct of the affairs of the Crane Company," and of the Crane Valve 
Company, which differences had been, and if not adjusted would con~ 
tinue to be, detrimental to the conduct of the business, “and pre— 
judicial to the interests of all stockholders therein,” and 
it was believed that the best interests of both said corporations 
and of the stockholders therein required that either Charles R, or 
Richard @., Jr., should dispose of his interest in the stock of 
both said corporations, ‘The other members of the family were sub- 
stantial stockholders of the Crane Company and Charles R. and Richard 
Te, Jr., considered that their consent was necessary for the con- 
summation of the plan which they, Charles R. and Richard T., Jrey 
had agreed upon for the purchase by the Company of the interest of 
one or the other of them, It also seems clear that the other members 
of the family concluded that, in view of the situation, they were in 





=hf@ 
",yittuons 000,008 s so nad? yedéet ¥Fiunas 0004883 ms°m0 yntetxs 
ernst) .f seltadd asewied AI saw te Jaomeenygs ed?’ 
ojsited? “aubmobbs” to “Jneanos" odd déiw 4.xl ,9ne1d . Dusdosf bas 
odud genes yilsst enstd aft to aredmem todo edt Lis yd bongiz 
te iliy edd YE .Smomeotgs jmemelttee (Linc? 2 yiaemgbut ato mt 
ewobiw ain 10% shsu sigw emolzivow aletieo «et .eneT? .f busdeltaé 
isiiqsmmsins sid yd ied tol ebam amotetvesg oft of mots Lbbe mk 
tai ,5io0e1 sis sorl ,someretnt eldgacazses « et tI .tasmecngs 
bas ,te8 oF Ytotoeteiise Joa sxew Liiw ods mt sham enotatvorg ont 
| eds abs ciow ow ,.tb ,enetd .f biedold bas emst) .f neltadd. 
-no0o ery otal beisine ,stase0e e'reddel ated? te esetagel yranhleot 
ods doldw to emved oft yd .SL@L .8 sedmeped to tod uitlw tosis 
taomesTgs Isiiqua-sins oid asdd oom yiistinssedua beviens1 wobbw 
doldw Io soidereblenes at yrs 16% bebivesq LLin a' bnademt red fos 
bas MLeded ios ai lilw edt to amoletvoen edt betqoovos ede 
MOT etesqgs aA Justiestge Jasmeiiser egsirzam orld bekiises 
_ meeused ezois eeonoreliio cant Io snemse1ge) ent! 
‘Suid ofS oF es” 4. 1b ,oet0 «7 bastotl bug onset? .A seluedd: 
ada Wa ot, 2, neg ALAM Dan: ‘aes agen Dire ee mnlanatipel 
evis¥ ems) edi to bas “,yasqmod ematd edd to ettslis eid to Joubios! 
~109 bivow besastos Jon Ti bas ,ased bad eeonetel bib wobsdw yyasqaod: 
(~91q bus” ,zeealend odd to dowbgoo edd ot Iedmemiagob yod of emmbt 
| ; ‘bus “tiered ersblorisete {la Yo edeouedak esd, oF Latozbut! 
actolJ suogie9 bise died to eteetetal taed edd gadd bovolied esw $f 
tO .i eslisid isd3te Jedd bexivpet ateieds eroblorioote oft to bas’ 
_ Yo doove ade ai Jeotedni eld to exogeth bivorla . stb ys? basdolt 
~dive suse YLisiet ery lo exodmem teste ed! -,enokistoquoo bise wdtod’ 


—«btsdotl bos ,f seLisdd bas yosquod easiD ess to enebLoddloode Lettuata! 


“oo ej sol Yisessoven eaw Jaoenoo thedd Jedd bewohlameo —. 
goth goZ Seale La bas .f eolisid .yodt slokeiy nigiq edd to setisemue 
Yo deersdak oft to ysisqmod edt yd sandowg edt sah moqw beetys had. 


: ereduem tedso eft Jsdt aselo emeoe ovis tI mend to testo edt to sao) 


at oxow Yeuld qaoliaudte end to wely nb «Vasld bobuLonoe yLtmer add 20 


—3 5m 

a position to demand of Charles R. and Richard T., Jr., a share 

of the father's estate, which by the terms of his will was given 

to Charles R. and Richard T., Jr. It also seems clear that the 
latter were willing to grant the demand, provided that their brother 
and sisters would share the burden of the agreement of December 2, 
1912, wherein Charles R, and Richard f., Jr., had guaranteed to 

the stepmother a net income of $100,000per year so long as she should 
live, In the agreement of June 11, 1914, Charles R. and Richard T., 
Jr., after stating that differences had arisen between them as to 

the true interpretation of the provisions of their father's will and 
as to the future conduct of the affairs of the Crane Company, recites 
"Whereas, the parties hereto desire that a part of the property which 
comprised the estate of Richard T, Crane, Senior, shall be set aside 
to create certain charitable funds, and further desire that the 
sisters and brother of the parties hereto shall each receive some of 
the stock of the Crane Company formerly owned by Richard T, Crane, 
Senior, notwithstanding the fact that none of said stock was devised 
to said sist * * aU The agreement next refers to 








the contract of December 2, 1912, and recites: "Whereas, all child= 
ren of said Richard T, Crane, deceased, desire that the burdens of 
said agreement of December 2, 1912, should be borne by all children 
of Richard T. Crane, deceased, who receive any share in his estate, 
and by their heirs and personal representatives * * *," Article II 
provides: "Within Thirty days after the terms and form of the bonds 
and mortgage or trust deed hereinafter provided for shall have been 
agreed upon, and Herbert P, Crane, Kate C. Gartz, Mary C. Russell, 
Frances C, Lillie and Emily C. Chadbourne (who together with the 
parties hereto are the sole surviving children of Richard T, Crane, 
deceased) shall have executed their several consents to the terms 

of this contract, in the form hereto attached, each of the parties 
hereto shall," ete, Article XVII provides: "This agreement, when 
earried into effect, shall operate as a complege settlement of all 
the aforesaid differences between the parties hereto, and as a 





—— 

. @tade 6 _.% 4.7 baedoti Bae .fi aafusdd to ceaae h¶ oc nolitaog, s 
stevig aow [Liv ald to sated at ye satin godades ataedtet edt to 

oy > @is tant agelo emeoe opie I tL 4.7 Sigdotl bas «ff aefaad2 of 


. soritord tied? Jat bebivers qbasaed ot taety of gablLliv. o1ew r9hdel 


23 isduesed to tremeotgs edt to aobme aif otede Divow aredate drs 

ot Hootnaisiy bad y. 1 4.2 bradeti bas A eeltadd mhorestm qSfel 
binond= ade ex gaol ee issy xeq000,00L4 Io emoont ten = tesitomgecta ott 
eoT besdoifi Ane .@ cofwald ~AL@L ,fl enw do dmemmonys edt of... ovtl 
ot as modt assewed seelia bad esouetoRith edd gnivete sedis qT 
bas [ftw ofrenits? «ated Yo aneketvow edd to moisgatouqietat eva, eds 
retioe: pynsqm@oS ons) odd to eristts edt to toubaes owsn't edt o}-es 
dohiw ywreqeiwg edd to tus¢ # tedt otined oteted aottiag, oft )yeseaedi” 
ebies toa od Ilada ,tobneG ,ems1) «FE hbisdold to. statee.edd bsalaqmoo 





ef etotet xen Insmestgs oxT "*.* * zodtord bag senede ts biapoot 
cmbLEHo [fs ,saswes" rgettoor bas 4SL@L _S, edmond 2o: toattaeg,, 012 
. ‘to aaeburd off tedt otizebd ,beeseoob yonsi), 2 busdeii: bisa, to,se 
merbiiso Lis yt ered ed bdwode 4SLQL .S redupoed, lo taempetgax bss 
-4stateas eld ot orade yas sviese om .beeseoeh yonetd,.7 dtasdodh: to 

II efott1s ",% * * eevitstaceenqes Ingonusg bia. ested. thet. yd, bis 


seed ovecl ILerle tot bobivoxq s0dtanteted. beeb gents. 10 egegdiom bas 
eileeenfi bas, soe beotgs 

| exit Adiw texivegot orw) enupodbat 10 yLinh bus ebLftd .. esas 
aeons .E buntoLi 10 mosbiido satvivwe efoe edt! exe. otexpsl aolauea 
~ garret elt of etueanoo Lstaver. atodt betuoexs eval LLaste, (beeseoeb 

. e8itasq etd to dose qbeloadta ofewert scot ont nk ,tsattaop etdy. 20 


semw .iuismetgs etdl* seobiverg ITVK efaitth ote." -Liada, odered | 


Lie to tacmelstee ensareine aa (nt eT9qe cEheds taste etek Dekerss 


-36= 
release by each of all claims which he may have against the other, 
and shall also operate as a release and discharge by esch of the 
persons who signs the consent attached hereto of all claims which 
he or she may have, or may have asserted against the parties hereto, 
er either one of them, in any manner whatsoever, arising because or 
out of the Estate of said testator, or out of any agreements or 
negotiations heretofore had as to the distribution of the estate of 
said testator, or as to the setting apart by the parties hereto of 
Shares of stock of the Crane Company to the several parties signing 
such consent; and shall also operate as a full release and discharge 
to the Crane Company of any claims and demands which either of the 
parties hereto, or any of the persons signing said consent, may have, 
or may at any time have asserted, growing, or arising out of the 
failure of any of said parties to secure the right at any time in 
the past to subscribe for, purchase or receive, any stock of the 
Crane Company; and the parties who have executed the consent attached 
hereto severally agree that they accept the stock allotted to them in 
Article X hereof in full satisfaction of any claim, legal, equitable 
or moral, which they have up to the date hereof to stock of the Crane 
Company, and each of said parties agrees that he or she will, upon 
the execution of this agreement, execute and deliver to the Crane 
Company a release which shall be in the form as set out in Exhibit H 
which is attached hereto," 

Article I provides that the executors of the estate of 
Richard T, Crane, Sr., shall immediately transfer and deliver to 
The Northern Trust Company, as trustee under the agreement of December 
2, 1912, 2,500 shares of "Estate Stock," to be held by said trustee 
in lieu of the 2,500 shares of Crane stock previously transferred to 
it by Charles R. Crane, The article also sets forth the amount of 
Crane Company stock which will be held as "Estate Stock" when the 
transfers therein specified shall have been made, amounting to 55,217 
shares, and, in addition thereto, the 5,000 shares standing in the 


name of The Northern Trust Company as trustee under the contract of 
December 2, 1912, It appears from Article III of the agreement that 





gs 
2* 
etedto eft Jeaiags sved yam ed doldw emtalo its to dose yd sesolor 
eis to dose Yd sgiedoath bas seselot s as od e19qo oats ‘LLesde bas 
doisiy amisio IIs to ovedted padostts tneanoo ont mare odw ence 70q 
eereiod eoisisq old denisge betieees ovessi Yau tO vad Yan onde 0 od 
70 sessed gatelis ,1¢ve0edasdw TSMtaM Vos at ,medti To oco rontd to 0 
10 edmemeotgs Yis to ipo 0 a tos ase o⸗ Bisse to etstea edt Yo te 


to etstes oft to noisudtate th ody ot &s basi stotos oten enoltatdogen 
to oterad 2olizeq odd yd tasqs gaitiee ods of 88 TO xtodadeed bse 
gologie aeituisq Lstevse acid oF vaaqguod enet0 xia to toate 20 eorade 
egistoath bas sasolex Lisl s as sisieqo oels Lisiie bus aoenoo dowe 
sud to sedtte dotdw abasmeb bas emtslo yas 20 wasgaod eas ad of 
,oVad Yem ,dneanqo bisa geting te ⸗aos 19g ed to vas, 70 —— eottxeq 
eit to two yuitetts 10 eBAtWOTR bodes ora out? wis $5 Yam 10 
at omii ys da Sogia ond eurecs oF eolitag, bhsa ‘to yas to wantiet 
| sit to foote ¥ois .eviovot 10 o aclo · u — ⸗asrar of Yaaq * 
betlosits tngenoo oft betyosxe oved ortw acliusg edi aus t¥esqai00 ere 10 
wt meds ot bedsolts asote exit dqeoos vests Sasit conga ‘Uletovee orsron 
eldad tupe eisgol ,utslo yas to nottoctetise fist at tostert 4 fo) * 
— 0 


oasad eld to Lode of Yoosed etab ait ot qu ovad ‘ond donde aon 10 
aoqu⸗ eLLtw ede to of teddy eoorges aoksisq bise 0 tous bas Xæaquod 
east) st o¢ teviteb bis eduoexe qittomeerys eld ‘to | mo oexe * 

x tiditixal at to jee 2s mot ons at ‘od Karte so teiw eeselor 8 yesquod 

" odored bodoaits ‘at dotdw 

to etstee ot to etodwoexe edd tadd 2ebivory I oLotich seein 

ot xeviteb bas totenetd vist stboumt LLadte on 9a Tt brads 
soduspod ‘to tnemoorgs exis cobs sosentd es maegaod vrr arrests aon ‘ed! 
cosas bkae yd bled od of " alood® ot ata" to ortiz ‘Odes Rice 9 

od beitetadeid Uauotvory aoose ona) ‘to J— 008 8 ‘edt 6 wot at 
0 Jeusoms eng djao% ator oats eLotias ont -onis 9 A ‘oftadd vd i ‘tt 

ed soriw "Xood8 etatel” es bLed od Libw sto btw aoose wieanod — 

VISQRE of gabtaoms yoham aeed ovedt Latte betttooge toredd | exstenetd 


Lesa. gi sco 
eal at pattbasde eoratle 00042 ont sovonenis soit tbbs nt bits (8 — 
0, Cheap vata * 
‘to d⸗αααοοN esd obey — 28 veo dasa? arendd rol edT to sms 


ne teehee ea ST. ty. Eee Se areeg 
Salt duemmergs edd ‘0 TIT ofetech meet waneees #2 “ster ¢s — 





-37= 

there was a credit of 8741,030.57 on account of an unpaid dividend 

of eighteen per cent on “Estate Stock" standing on the books of the 

Crane Company to the credit of the estate of Richard T. Crane, de- 
of the same, 

ceased, and the seid article provides for the distribution{ Article 

X provides that the "Estate Stock" which shall remain after all of 


the transfers thereof therein provided for, for charitable and other 
purposes therein described, “shall be divided into five equal por= 
tions for the equal benefit of the four sisters and one brother of 

the parties hereto, and said portio shall be t sferred 

delivered in the manner provided in Article XI hereof," (Italies 
ours.) In Article XI appears the following: "* * * inasmuch as said 
agreement was made for the protection and benefit of the Estate of. 
Richard Tf, Crane, deceased, and Kate C, Gartz, Frances C, Lillie, 
Mary C,. Russell, limily C. Chadbourne and Herbert P, Crane, the sisters 
and brother of the parties hereto are now about to receive considerable 
portions of that estate, therefore, the ssid Kate C, Gartz, Frances 

€, Lillie, Mary C, Russell, Emily C. Chadbourne and Herbert P, Crane _ 





e der said ecment of December 2, 1912," 
(Italics ours.) Article XII provides: "For Five years after the 


date when the Crane Company purchases the interest of 'the seller? 

as hereinabove provided, all stock of the Crane Company which is 
owned, or the voting power of which is controlled, by the parties 
hereto, or by the persons signing the consent attached to this con= 
tract, shall be voted at all elections of directors of the Crane 
Company in favor of such persons for directors of said company as 
shall be named by the ‘high bidder,' provided that he shall so long 
survive and remain the holder of a majority of the total stock of said 
Crane Company which may from time to time be issued and outstanding." 


Article XIX provides: "Hach of the several agreements herein contained 
j 
is dependent upon each of the others, and is to be binding only in case © 


this e € agreement is ¢ ed out," (Italics ours.) Immediately 


following the signatures of Charles R, Crane and Richard T, Crane, Ire, 


bnebivih blaqny as to jnyooos mo YE.0EQ, LS Io tiber® « ecw erads 
sit to exood od? mo gathasta "loose efsted" ap acioo teq meatigte: to 
ty gente 2” preees to sfateo od To Sibero odd of yusqmoD ems20 
efoltsiA laotiudiateth ent tot esbivoug slptita bisa edd. bna _desand 
to ifs rests miamot Lfele dotdy “aAoote etated" od tadd. eebtvong x 
tonto bas aided hxate 202 etet bab tvoxq atotedt toeteds arotened — 


boeodtaosae aleiteds eegoqung 








"ies — — — — 
oud r9t%s eIsey evil 0%” sesbivorg. its eloltiA (etme eokfedl) 
*relfoe oft’ to Jaotednt ont aeaaclo auq yasquiod. e9ne10 sid codw etsb- 

at dolrw yneqmo) smst0 exit to dooda Ife ,bsbtverg evodsentotedies- 
| satdene odt yd .bellortmos el doinw to teweg. aeitt ov edt s0 ¢bem©o- 

“noo edd of Setlostts tasancs silt sntagte anceseq edt xc xo .otored 

ener) edt to exotoert 20 anotveele Lia te bedov od tieda fount” 
as plaques Hise to aqoyooulb tot aseeieq doga to tevel af Yusqmod— 

"amok oz Liste ed Jait bebtvoug ‘_rebbid dad’ odt yd boman od Iistle 

bice to Aoods Lstot end to yetuotam s lo tabLos end akemet dns ovbvate: | 

" gatbasdeswo hos bereet od emis ot emtt. mort Yen doinw Yosqmo0 sisi - 











vlotstboan] —* ‘epbisdT),  "qtue_bekasse ¢h dnomemns oxtiae, stds 
etl ost) 7 baado ta bas. enet),..f shat sounangie ens gattwollot — 


a6 fh ~RhOL gS asdnsoot 


== 
to the agreement appears the followings 

"In consideration of the benefits which will be received 
by us under the terms of the foregoing agreement between Charles 
R. Crane and Richard TI, Crane, Junior, dated June eleventh, 1914, 
and of the provisions contained in said agreement affecting us, 
we, the undersigned, being children of Richard T, Crane, deceased, 
and stockholders in the Crane Company, do seyeraily hereby agree, 
each with the other, and with the said Charles R. Crane and Kichard 
F. Crane, Junior, to all the terms and conditions of said agreement, 
so far as the same affect the Crane Company, or ourselves; and we 
do further severally agree that the Crane Company may purchase the 
stock of ‘the seller’ and may purchase the assets and business of 
the Crane Valve Company in the manner, for the price, and upon the 
terms, and may psy for the same in the manner, in said agreement 
set forth; and that the Board of Directors of the Crane Company 
shall be selected, and by-laws adopted, as provided in said agree~ 
ment; and that as stockholders of said Crane Company, we will vote 
all stock owned and controlled by us in such way as to give effect 
to all the terms and conditions of said agreement and will specifie 
cally perform the terms of Article XII of said agreement, and we 

eve agree that we will each of us, in compliance with the 
terms of Article XI of said agreement, execute and perform the agree- 
ment of which Exhibit E, which is hereto attached, is a copy; and 

the undersigned, Emily Crane Chadbourne, agrees that she will, in 
compliance with the provisions of Article XI of said agreement, 
execute and perform the agreement of which Exhibit F is a copy; and 
we all agree that we will, in compliance with the terms of Article 
XVII of said agreement, execute the instrument of which Exhibit H 
is a copy. 

"This agreement shall be binding upon and enure to the 
benefit of the parties hereto, and their respective heirs, executors, 
administrators, personal rapresentatives and assigns, 

“IN WITNESS WHEREOF we have hereunto set our Hands and 


hy * 


86 

sgetwoLlot of? etseqis tnomeetys ents * 

bevisoes od Iftw deisw etitened adv to molvsteblemoo al” °° | ~” 
asfiedd agewied Jaemoetys gsitoystot sd} to emred eft webny ey Yd 

J vitnevele emt bets gtolnwt ,one1) .T bradolt bas enfad i 

eau gat} oetts tnemeotgs bise at beaksdnaoo enofetvory ed} to bas 

i ebesassoob ,enst0 .T breldli to metbLids gated ,bemglerobar edt ow 
| ees Ydorer yileusvee of .yteqmod east edd at eteblodioesé hak” 
ss paseloRT brs one1D .8 eofuedd Btee wild stb bas quedito edt abby mone 
pineus7gs bise ‘to enotitbace bas emred sad Ife ot probit vons29 3 
ow bus jeevloatwo ro yymsgntod omer end foots omer etd es ant OF 
ord cansiowe Yam Yeeqmod ened odd add comgs yLLeaeves redtust Ob” 
Yo 2esniend bas efotes oci⸗ꝰ sessing Yam brs trolfea orlt? to foote 
edd moqu bas ,sokiq cfd aot yrenmsm oft HE yasqmod' ovis? -ensx0 eit 
Saemectge bisa at , tennant off ME omse ony sot Yq Ysut bas yemrret 

| Yetaquiod ens ext To etodoort Yo brsof ort tudt has [lgrot soe 
~88Igs Biee at bebiverd es b8tqobs ewal=yd ‘pata’ _betoolee od Ifsrte 
etov [Liv ov .ytsymod oust) bie Yo erobloiifoode ba tard Sits {tnoht 
Jost te evig of es ysw done at ew ye beflortaoo bas bemwo toote Lis 
~Ltkooqe Iliw Bris Inemoergs fise to enottibnos bus amret oft Lfe-ot 
ow bas cInompetys bise to TIX eLots1A “to eorred” exit iuot10q Yltss’ 

| - enit uid be sone bhiqmos ck aly ‘to oss Litw ow ‘tadd 9 oetgs yLigueved 
-se%gs oft mr0t10q bas eguosxs  titeatoo13s biae to m efotsth to emrey 
bas ¢yqoo 6 2k ebedoatds ‘eteted et doliw it S10HGH dp tdw to dnem 

ai .iftw ede tadd zooxgs enrtodbad® ent) eb pbenglerobny oft 
cdsromsengs bhoe to IX efottt to eno kdkvdeg edt dt iw ‘eoaekfqnos 

bas ¢yqoo s ef f $d bebe iio betw %o Jeemse7ys ‘edd mrotieq ‘big otuoexe. 
efoksti to enmued ont diiw cons Lita ak Le ow tans cotgs Ifa ow 

FI 3 Adnsica doLdw %o snemtas cok ot oNuoens © inemooras bkae to ) eave 


ne rai 4 





) — 4 ak 
i Gain "bb Balt aad th —— 
— —— evisvooqest ntedt bas sotoned —* — 


— pee fe 









“lengteas bas eovits: “ae 
bas eBrtel 10 foe odawoted hall lind we Bebe ek fon a 





Seals this Hleventh day of June, A. D. 1914. 


"Kate C, Gartz (Seal) 
"Frances C, Lillie (Seal) 
“Wary C. Russell (Seal) 
"Emily Crane Chadbourne (Seal) 
“Herbert FP, Crane (Seal)*" (Italics ours.) 


Upon the same date all of the parties executed the trust 
agreement referred to as Exhibit E, and the appellants contend that 
the “addendum" to the agreement of June ll, 1914, and Exhibit E 
control the obligations of the members of the Crane family other 
than Charles K, and Richard T., Jr. The agreement signed by Charles 
R, and Hichard T., Jr., and the so-called "addendum" or "consent," 
in our judgment, are parts of one agreement, which has been called 
“the Family Settlement Agreement." As well stated by counsel for 
appellees: "“* * * whereas it is perfectly apparent from the terms 
of said agreement, as above indicated, that it was one between all 
the members of the Crane family for the purpose not only of provid- 
ing for the control and management of said Crane Company by the 
so-called "high bidder’ and of settling the differences between the 
two brothers with respect thereto, but also for the purpose of 
settling the differences between the two brothers and their other 
brother and sisters arising out of rights or claims, ‘legal, 
equitable or moral,' which the latter had asserted with respect to 
the provisions of their father's Will, and with respect to some 
share of the 'Estate Stock' held by the estate of their said father, 
Richard T, Crane, Sr., as well as for the express purpose of carrying 
out the expressed desire of all the ci en of said Richard T, Crane, 
Sr., that the burdens of said Agreement of December 2, 1912, should 
be borne by all children of Richard TI, Crane, deceased, who might 
receive any share of his estate. Said agreement expressly provided 
for the division of such part of the 'Estate Stock' as should remain 
after the transfer of certain portions thereof as in said agreement 
specified, into five equal parts for the equal benefit of the other 
members of the family in the manner provided in Article XI of said 
agreement, and, as above stated, that they accepted the stock so 


| 
( 
| 


| hey 
“i= 
LOL i .A yomul to yeb dtnevell elit eiced 
Ise) Sous .0 otsk” ‘ 
{sez) eiiftd .D esonstl" 
Is98) {iseewi .5 ytsl” 


re pets aniwodbad) enet) yitmil" 
(,euco eotistl) "( Leobt  enetd .4 dtedreH" 


teutd od} Setwoexe eotiusq ent ‘to [id ets mse edd HogU | 
ssid Buotnoo atnisileggs ont bus A tiditx® es od Howretet Yaciioongs 
a tidiekd hae gel .L! ont to tnemoerys edt of “mubtiebDs” ent 
tonto yLlast onset oft to erodmom oft to enol spiiio eff kode 
eolisid Yd berigte Snemeetgs oT .1l ..T besdolf tins eolzaitd madd 
* Jacanoo” to "nubnebbs” heltso-o2 et bas ..Tb (ST btadolt bas n 
beliso need ead rotdw ytuenoergs sao To attaq one yiiemybst wo af 
tot L[eemwoo yd betste Liew 24 *,tnemeoxgh YaomeLstoa yitaet ety” 
anites odd gov) tmotsgqs YLvostreq et YI esotodw * * #4 peer Teqas 
ils seowled amo esw St dant  bedacthat evods es yinemesrgs blade “Yo 
-bivowg to yin ton seoqang oft 1Ot Yi kms? ost) edd to eiedaiom oat 
ois yd Yasqmod onscd Bise to tnemegsaséa bas Lordnod ddd tot gat 
odd stoowded eeonoreTIth sd gatlitee to bas ‘rebbid agit’ betlso-68 
‘to szoquug et 101 oels dud potetedd Joeqect avhw erodvotd ows 
" wedvo attedt bas evertord owt edt neowSed eeonete?TtTEd edd gatitise 
-lsgel'! ,embslo to 2tdgi« to dud yatetis erdtete bas toddotd 
ot Foeqaet délw bediezes bad 19eFsef Bid Métdw 4) yisiom 10 efdssinps 
emoz ot Sosqasx ditw bas QLLiW e'todtst «hedt to enoteatverq orit 
wtodset bise treds’ lo ofstac edd Yd biel tdoode odstedlt add 10 orale 
ꝛatxiae⸗ to seoquiy neato J “ot 26 eu es . ,ortet .T bredota 
X A to gexbs dd S23 to bikeob boveeiqxs ond tho 
biuote Sel .S tedmesed to ——— bise to endbted odd tend’. .28 
As ta ostw ebezseosh yous .T bradolt te newbiido Lis Yd eaxod od 
bebivorq Yleeotqxe tasmeergs bis® .odetae ef Td Suarle Ys evEeoSs — 
aismet bisode as 'Xoot2 etatal’ edd Yo disq sowe Yo motatvib ed tot 
dnomsetgs, bise xt es toorerd enotdtog Hhatred Yo xetenesd odd setts 
- gestto add to FRtened Ieupe ont sot adusy Lanps’ evht oft (belt reeqe 
bise to IX efotixa mt bobivowg tomntem edd mi ULhiner: Ay Yo evediom 
oa xoose odd bedqooos yedd tund ybodsde evods es .one eiaemeorgs 








\ 


-40= 

allotted to them in full satisfaction of any claims which they (all 

of said children except said Charles R. Crane and Richard Tf, Crane, 
Jr.) might have or might have asserted, arising out of the failure 

of any of the last named parties to secure the right at any time in 
the past to subscribe for, purchase or receive any stock of the Crane 
Company. Furthermore, Article I of said Family Settlement Agreement 
expressly provides that the executors of the estate of Richard T, 
Crane, Sr., shall immediately transfer and deliver to The Northern 
Trust Company, as Trustee under said Agreement of December 2, 1912, 
2,900 shares of ‘Estate Steck,’ to be held by said Trustee in lieu of 
the 2,500 shares of Crane stock previously transferred to it by Charles 
R, Crane; and sets forth the amount of Crane Company stock which will 
be held as ‘Estate Stock' when the transfers thereof therein specified 
shall have been made, amounting to 55,217 shares, and, in addition 
thereto, the 5,000 shares standing in the name of The Northern Trust 
Company as Trustee under said contract of December 2, 1912. It also 
appears by Article III of said agreement that there was still a credit 
of $741,030.57 on account of an unpaid dividend of 18% on ‘Estate 
Stock! standing on the books of Crane Company to the credit of the 
estate of Richard T. Crane, deceased, the distribution of which is 
therein provided for," Exhibit E (Article I) provides that each of 
the members of the Crane family shall transfer and deliver to The 
Northern Trust Company, as Trustee, certain securities, which are to 
be held by the trustee during the life of lirs. Junkin, subject to the 
following terms and conditions: 

"Paragraph (a). Second parties and third party agree that 
from the dividends and income derived from said 6,000 shares of stock 
and $195,000 face value of bonds there shall be made the payments 
provided for in Paragraph 2 of said agreement of December 2, 1912, and 
all other payments, if any, which Charles R. Crane and Richard T. Crane, 
Junior, covenanted in said agreement of December 2, 1912, to make, and 
that one-seventh of the sum necessary to make said payments shall be 
taken from the dividends received from each 1,000 shares of stock 








— 
— — 
“* 


wpm 
Iie) youd dotdw eutels Yas ‘te cotfestetise Ltwt Ab mois os bedtoLls 
,oet) .f btadeth bus omer) .f g6fisdd Bike tqeoxo notbitdo bliss to 
owlist ott to deo antet«s ,bodroees ovad digi <0 evad tdgim (.2% 
ab ont? -yitd $4 daigix entt ornsed os “ebBF4sy Benen deat add Yo ye Yo 
‘enst) ef} to Moots yie co etatoty Yrot edtioadue ot tesq ond 
dnemeomga teomelsiea yLlusi bise Yo I elsiet ,otomraddint .ymsqmod 
2 Buoto bi tq skate st to srotudsexe edd Fad¥ aobtvorq Yldesaqxe 
cteitioll Sif of teviIsb bas tetenwed ylotetbommr Elarte ¢642 (onsx0 
eSL@L .S sedwe000 Yo dnemeotys biwe dobar eosew? ea pytaqmed FewrT 
Yo seLl mt sotane? Stee yd ble od oF "yloode abet el to eetuife “00e,S 
zeLiadd yd dk of borzotenetd ylewotverg Asote enibtd To eotave OOR.S oxdt 
Litw dotdw xoota yasqwod ener Yo snwvons ony APtOY B¥oe brie pelterd .f 
helitooqe nioredt tosredd sreteiers oft cosiw ‘abot ofatelt es bled od 
soitihhs mb ybus .2orle YIS.e oF gettewome (obslit need eva Hace 
cites? giedda0l ef? 0: omact eis pabheinse eoacite’ 0000" UF oF reas 
oale $2 .SL0L ,S tedmovse Yo’ foatinos Kise aobite Sedemet a yabquod 
dibeto « Litie esw exedt send duomoorgs Klee’ 1 TIT LStd ri yr erseqqs 
etated! oo GL Yo basbivéd Hiaqay H6 Yo savdods ho Ye. OFOLLATS 20 
est Yo tkbor ssid of Yasqmod omstd te exbod" eA} ho Sakhndte’ dose 
at dobdw to notiudtuterd edd ,beesoeb .étiswS'.T — — 
‘Yo. dose dad? eobiveu (1 eLotdaA) © Ftdbeet ‘4 a0T HObiVOTG MBOteds 
em? of sevifob bus xetengtt Lisde YLime? eed oft to deodmsar ond 
_ OF ete dotdw yeolitiusoes aississ ,setest? aa ceetsqmoo Yew? grttt aon 
eds of Sookde .abiawl ce te StLt odd get uchh Sosawey ‘end yd Blend od 
4 >) 0) Sh pelt Be BBato “Bate ‘eatdt Slberen 
er ieee" — — — — 

doote to eerssle 00049 Sine mort ‘bovinsh omosril bits’ ebmehivib’ sly tort 
_atmemysg edd obam od {fale o1edd ehaod 10 e¥Lsv eoat O00.REIS bas 
bis gSiOL .S tedmesed to kaouverys) bikea! Yo! S tqeughdet KE “ror ‘bebtvoxq 
— — ——— 
bas youlem of .SL@L gS tedmmosd to Sasieotgs Bisa Ri bedianeves tothe 
ed {isde etacaysq Dize exsm of Yiseseoem ame ont “to itgneveesone “tidd 

_aoote Yo setae 000¢L tose mon? bevtooot’ ehtobivth did’ Mott méilst 








-4l= 

transferred and delivered to said The Northern Trust Company, as above 
set out, and one=seventh of the sum necessary to make said payments 
shall be taken from the interest collected from the bonds transferred 
and delivered to the said The Northern Trust Company, as above set out. 

"Paragraph (b). Said The Northern Trust Company shall keep 
separate accounts with each of second parties, and shall collect the 
dividends received from each 1,000 shares of stock transferred by each 
ef second parties who shall have transferred stock hereunder, and shall 
pay from the dividends received from each 1,000 shares, one-seventh of 
all payments which shall be made in accordance with Paragraph 2 of said 
agreement of December 2, 1912, and one-seventh of all moneys which 
Charles R. Crane and Richard T,. Crane, Junior, covenanted by said agree=- 
ment of December 2, 1912, to pay, and said The Northern Trust Company 
shall pay the remainder of said dividends, if any there shall be, to 
the person who deposited said 1,000 shares of stock. In addition thereto 
said The Northern Trust Company shall collect all interest which may be 
paid on said $195,000 face value of bonds, and shall pay therefrom one= 
seventh of all payments which shall be made in accordance with Paragraph 
2 of said agreement of December 2, 1912, and one=seventh of all moneys 
which Charles R. Crane and Richard T. Crane, Junior, covenanted in said 
agreement of December 2, 1912, to pay. And said The Northern Trust 
Company shall pay the remainder of such interest, if any there shall be, 
to said Charles R, Crane, 

“Paragraph (e). In the event that any of said second parties 
shall die prior to the death of Emily Hutchinson Junkin, said The 
Northern Trust Company shall pay to the executors, administrators and 
assigns of the person who shall so have died, all moneys which would 
have been paid to such person had he or she not died, 

"Paragraph (da). Upon the death of the said Emily Hutchinson 
Junkin, said The Northern Trust Company, as Trustee, shall transfer and 
deliver to each of second parties, and in the event of the death of any 
of second parties then to their executors, administrators and assigns, 
the stock or bends so transferred and delivered by them to the said 


~Lh— 

evods es ,ynaqu0) Jeurl aredizoll adf bisa of borevileb Sas bortotenent 
etnomgeq Sise eeu oF Yxssesoon gue edd to Adaever-ono bas. FH tos 
berisiemawd ahaod add mort bedoelleg Jesteial eit mort asris⸗ ad Liede, 

«30 te8 cvoda es ,.yiaqmod sganil atedtrol oT bisa end ot borovileb bag 
qoou Lfade yoeqmod Jewal aueddaoll eT ble@ .(d) dgstgsted" * 
zscis towLioc LLerie bas ,eeltusq baodes to. Apas als be sdauooas ontereges 
dose yd bowistensat Asode to eotede O00,f dose mor? beyteoon abaebkytb 
-— Lferie dae ~robasened doote berustenest oxad Leds, och eoia asg bnovee 20, 


2 KS 


to — asoteeia ooo.i sone mpzt bevkooes ahapbivtS ant mas? Yad. 


f | 4 ee 





| weompe bhse Wi degnsueves qxoinnt — —— ons%® fl eolaead 
|| Re, dear a ao ad? Bian hee qYeq A, FALL oS medmpeed. te. From 
OF god fade oxeds Yun Lt qabmoblvih bisa to sobmkamet edt yeq Ladle 
| oferesid moktibbs al lode 2o versie 000, bier botheoqeb ony moateq ety 
| od Yam doaca geensdat Lia JooLfeo Lene yoaqmed tent auodu aon eo? bias 
~er0 movtorsrid Ysq LLarle bas yebaod Io ewlev east 000,8RLs Diez ao bisq 
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tesral neddsoH off bisa bud .Yaq oF _SLRL 4S todmesed Yo sdaenoergs 
| od Listigp terid yas 2t ,deorednt sowe 20 tehatamos edt yor Liadde yasqmod 
j | : AMER oo BOL TAD sai 
actiusq baoces Sige to yas Jaclt ausve ‘et an, —* Mqemgsts™ ·... 
ef! bise .abiowl sountiotuil yLini to sdiseb edt.od sobs oth, Late 
«bas etodeiseininds yetoswooxe edi of Yeq Ifade yasqmo): teusl sraddcoll 
_binow doidw eyenom ifs ,b9bb eved oa Llades ow moeteq off to angiess 
: —— — —— 
hosnidoculi yLiml bise edi tositseb edd mogU ,(b) dgsse 
bug totenstt {fade ,codentl 2s ,yisqmod tent sted 
veis to diseb) eld to Jaove edd at bus ,zekizeq 
wengiees bus etojeitaiainbs ,2totusexe thes oF. 























242 

The Northern Trust Company, as Trustee, as hereinabove set out," 
(Italics ours.) 

Paragraph 2 of the agreement of December 2, 1912, between Charles 
R. and Richard T., Jr., and the widow of Richard T. Crane, deceased, 
provides for the payment, quarterly, of so much of the dividends 


and income of certain securities as is necessary to make her net 


annual income, including the net amount of income which she shall 
" peceive from the marriage settlement agreement and the Atchison 


bonds, the sum of $100,000, Each of the parties to the trust agree~ 


ment (Exhibit E) authorized the trustee to pay his or her one=seventh 
of all payments which were to be made in accordance with said 
Paragraph 2 to Mrs, Junkin. This trust agreement did not modify 
the personal obligation assumed by each of the members of the Crane 
family to pay one=-seventh of any deficit which might arise, At the 
time of the signing of the trust agreement, all of the parties un- 
doubtedly expected that the income from the securities so deposited 
with the Trust Company, together with the income from the Atchison 
bonds which had been given to Mrs, Junkin by the terms of the 
ante-nuptial agreement, would be amply sufficient to provide for 

the payment of the guaranteed income of $100,000. The record shows 
that the Crane Company paid a dividend of eighteen per cent in one 
year, and it was not until it passed its dividend on March 15, 1932, 
that a deficit arose, This is not the first law suit that was born 
of the great depression, Three of the Crane children, Frances C, 
Lillie, Mary C. Russell and Emily C, Chadbourne, have each paid 
their respective shares of the deficit in full, and they are not 
parties to tuis appeal, The complaint as amended alleges that 
“since the execution of said Trust Agreement of June 11, 1914, 
plaintiff [The Northern Trust Company], as such Trustee, has 
rendered to each of the parties thereto separate statements of 
account, as provided thereby, showing the income received by plaintiff 
from said securities, and the application thereof, and, since the 


Same arose as aforesaid, showing the amount of the current deficits 


Ste 
v5 M,tuo tee evedgutered 22 — 2s — dauxl aueddro edl 

fame, aotisdI) .. 
asiaad) acewtod «Si0L ,S todmescG te Jnemeotys odd to S dgqetgets% | | 
.ebeess9eb one) 1 Piedoll Ie wobiw edd bas q.th q.T busdoli bas .%.. | 
abmebivib edt to dosm ee to .ylisdisup. ,.tnemyeq edd sol eobtvorg | 
tea ies! ope od Yiseaseen al as eeitiivosa sisties to emponk baw o\:\, } 
Lisde ane dokdw omoat to tasoms toa oft gatbulont gemoont Jaume) 
moetdos: eld bas Jnomotys inemeliges egatiiem eit mot oranent | 4/ | 
~e973s Jemst ont of soidaeq edd to dost «000.0048. 20, swe edd yahaod.,» | 
dineves~sna vod 10 2b ysq oF setauat ent Sesizodiue (8 desde) tem: 
diss diiw osasbioses at ebam ed 0) ergy doidw adneayag Iie 20). 
Nitbom Jon bi Jnonoetys daaria ald? .adalai..aau ot S siqetgeteh 
eus20 ed Yo axedmem eri} Yo dose yd bowese aabtagtice Laaoatog odd... 
oid th s0ahts suigtu dotdw Jtotieb ys te sdtmevearono,.yeq, of yLtme?,:. 
tis seidasq edd lo iis ytnemeeiys dasi orld to gitegte edd to emtt 
betlvogeb oz eetiluvooe eld moult emoont ods dedd bedooque yibedduob . 
Aoaloda eds mort smoont old ditw sedsegod ,yasqaoO ger? edd ditw . 
_ Sot ebivosq of jmetoriive yiqms ed bivew ,gnomseigs teliqua-stas, — 
| gSEQL qRL dot no Baobivib att owes tt Lita Jomeon th Bam yee: 
od nie tad, thon, wal texkh oat dex af obit teens dtobteb stadt: 
+2 eeonetl yaoxbitdo ene19 edd Yo cemil. .mohceewge) daemy edd to 

biaq dose ovad ,enwodbsid .o yLini bas Sfoaawi «0 yao eobiLhl 

tom ets youd bus cllst ot thodteb odd. Yo wetade, evit coqnet utedd, 
dadt eogelia bebrioms ag jatsiquoo off .leeqge abd ot eoitisg.. 
ePlOLl .il enw) Yo daemoegs seul bina to aotduoexe edt comta",.- 

aad ,ootenxl dove ag, ¢{ynsquod tesxl axedtioll edT) Ditstatslq 
ss BO. Ricomedade etetaqea otoredd eoliiag odd to goag ot hetobaet,. 
VWiliaislg Yd bevtocet emoont esd gaiwoda .ydereds bebivorg 26 snuosos »» 
_ edt conte ,bis ,tooreds nolisoliqgs edt fis ,eetitiuoes,. bios, mor? 4 
edtotieh dnori ert 20 dmuoms, odd, saiworin .~bieneno%e 8a: arom ames 4 





43 
and the amount due from them, respectively, on account thereof, 

and has made demand upon each of them for immediate payment 

thereof, Hach of the said parties has heretofore recognized his 

or her liability for their respective shares of such deficits as 
provided by said ‘Family Settlement Agreement,' and the said 

parties by their acts have construed the said agreement to obligate 
them to pay their proportionate shares of such deficit quarterly 

as the same arises." The testimony shows that in accordance with 
the provisions of the trust agreement (Exhibit E), separate accounts 
were kept by the trustee, and statements were rendered to each member 
of the family, quarterly, down to the time of the filing of the 
instant complaint, a period of nearly twenty-three years, It appears 
that these statements were rendered by The Northern Trust Company, 
“as Trustee for Emily H. Junkin, under an agreement dated December 2, 
1912, between Charles P, Crane and Richard T. Crane, Jr., and under 
a supplemental agreement dated Jume 11, 1914, between those parties 
and Herbert P, Crane, Kate C. Gartz, Mary C. Russell and Emily Cc. 
Chadbourne, covering the quarter year ending June 2, 1938, * * * to 
each of the members of the family, that is, the parties interested; 
and statements substantially in the same form were rendered from 
June 2, 1922, down to date." From and after June 2, 1922, the date 
of the agreement between Charles R. and Richard T., Jr., with irs. 
Junkin, by which her guaranteed income was reduced from $100,000 

to $85,000 per year, the statements were rendered in accordance with 
the written orders of irs. Junkin to the Trust Company and ghewed 
the basis upon which the same were made, and that Charles R. and 
Richard T,, Jr., were being charged on the basis of $85,000 and the 
other members of the family were being charged on the basis of 
$100,000 per year, and no objection was ever made by any of the 
members of the family to the statements as rendered, Herbert P. 
called upon Harold H, Rockwell, trust officer and vice president 

of The Northern Trust Company, in reference to the deficits that 

had accrued, but made no objections to any of the statements rendered 
to him by the trustee, nor did he deny his liability as shown by said 


og 


— etsibenat zt — to dose * * sion ped 


aia boshagnges eye}os ered nat neat zag Dies ont 30.fom . steeees > 


8a aflolieb dove to aoaade evitoeqaen xtedd vot vittidalt xed ro 
pias dt has ‘,tnemeotgs soamelite yitmey' Akos yd bebtyor 
edagildo of daemeergs bee ond besttaneo eyed atos itedd yd eettzed 
YWaelsenp Iteiteh done te cotsde efamottregosg thet xag ot mods 
titty eensbipoos at Jadt awode yaomitges edt " negite omsa add ge 
Stanoons atsnages .(G didtext) tnemeexss tautt ed? te suotatvorg. edt 
nedusm dose of boisbasx etow ataomatete bas ,set]sid edd x Agel etew 
add To galii) ex? to omid edt gt avob ,yluetuamp .yiime? ext to 
ersoqgs #1 4g badass ne desta 
xsquod tesxl aredtxol edf a berebass — atsemsyste, eves ia? 
eS seduooed botsh taemeonps aa tebaw atlas vil yal no? oggeurt 29" | 
robss boa ,.th .oust) .T buadoll bag ener «4 eelrad) aeewted ySter 

eotitag. ened aoented MRL gif — —— 
soa® YELM Qa. Lhoagssh «9 xsi 434200, 4D os 9081829. 93 — 
of * * ¥ gScQl S cast patho assy toducup edt gatiovos ,enuodbads 
thetgeoratat eolixag oft gat aai qiiine? oc? 29. saedmes _t, 20, op0. 
eed bevebaor exew maet omng odd at yifelinatadwe ednomedage bas 
‘otab os «SSQE «8 eam goaae bus mort "eta oF awob Eset 4S, enue 
seul Ativ oth get busdoti bas .f eeltasd) as oro ↄ tnomoorgs — 
‘i , 000, 0048 moyr, beoubes nem smoogs beotsanemy ree Atty. spam 
tbr seashro008 at boxobuer oxew efmomodate oul «ts0y eq 000,288, of 
bowode hag Yeqmo) tayxt eds o⸗ staal 9am 2p guebre ante hey edt 
bas .fi gelrasid Jodi bas .2dam oxow omar only doliy aoqu etasd edt 
edd brs. 099 468% to stead ond 20 begrado pated. ote" J at bupdota 
to. eiaed edj no begrsde gated psew yitmet edt 28.8 REPS, Teh? 

cds 20 as. Xd obam TOYO aay mOLTDehdo, om bas. 9228% 7H, 29M SP EF 

4 xodaon » bezebuet, 28 efnem ste. eat od ‘ime? ext to a : din 

.» Saebleerg, soty bas —J demas _ Lhewaool oh Nee’ ogy, dottoe 
S04, sf 20220 ont. 9f. eomnzeten At ayraqme® Sees? seme Teh, 8.2 
berebae etaometste edt to yas ot _ Baebes jo 95 shaw 9 —— 
bisa yd crorle es YStLidell ald ‘wreb on Bib ton ,ostants elt * aus of 























4 
statements, A, F. Gartz, Jr., made no objection to the amount of 
the deficits shown by the statements to be due from Kate C, Gartz, 
and after the closing of the estate of Richard T., Jr, Ae Fe Gartz 
wrote the trustee a letter, received by the latter on January 24, 
1933, reading: "“BEnelosed you will please find a check to your 
order for $2852.54, being the amount of deficit on Mrs, Junkin's 
trust due from Kate C, Gurtz." (Italics ours.) On September 24, 
1935, Gartz paid to the trustee the sum of $10,000 and received from 
the trustee the following receipt: "Received the sum of $10,000 from 
A. F. Gartz, Jr., Trustee for Kate C. Gartz to apply on deficit in 
her share of the payment due "mily H, Junkin under the terms of 
agreement dated June 11, 1914." (Italics ours.) On January 29, 
1936, Gartz paid to the trustee the sum of $20,330.48, and received 
from the trustee “a release running to A. F. Gartz, Jr., Trustee 
for Kate C, Gartz on account of the deficit of lirs, Gartz in her 
eontribution to the anmaity fund of Emily H. Junkin in the sum of 
$20,830.48." Until the filing of their answers neither of the 
appellants had made any objection to the form of the trustee's 
statements or to the amounts shown by the statements to be due from 
time to time on account of the existing deficits, The trial court, 
in his opinion, commented upon the practice followed by the trustee 
and the parties to the trust, and held that they knew "what the 
trustee was doing, how the trustee was stating the account; and their 
own actions put a stamp of approval on the conduct of the trustee." 
It is clear that the present contention of the appellants is an 
afterthought and that over a period of many years all of the parties 
recognized that the trustee was keeping its accounts correctly, The 
appellants are now estopped from claiming that the trustee kept its 
accounts incorrectly. 

The trial court held that Kate C. Gartz, Frances C. Lillie, 
Emily C. Chadbourne, Mary C, Russell and Herbert P. Crane were each 
liable to plaintiffs to the extent of one=seventh of the deficit. 
We affirm the court's ruling in that regard. 


to tnvoms ef} at aotvostde on obsam ,. tb _ad2s0 “TA sednomedee. 
estas) .9 stat movl eb ed ot esmomedate odg yd owode ediotieh odd 
ste) 4% sA goth go? batstlols to efstee edt Yo ynteolo edt rods baa 
«S Yisunst mo tettal edd yd beviese: ,tettel s ostemty exit etow 
ayoy of does s bait sesefq [lbw poy beaclon’* : antbas eet 
g'atinel .exM no ttotieh to tawoms ert gated BR. ccce x0? tob10 

A todmesqe2 m0 (.amwo eotistI) “.ataeD .9 ets mort ont ‘teat 
mort bevieoet Sas O06,0L8 to swe eit sete odd ot bksq si150 weet 
most 060,018 to mye oft bevicoes”" stqteoes witwoitot exit ootenad edt 
ait tkokteb no ylage oF sJas0 .D otsX z0t ooteud! qo Tt ,stted 2 soy 


ee ee fo 
XE YIswAst 20 (.ewo eotfedsT) "AIOE elt nuit bodab ‘tnomeer3 
bevieoot bas ,84,0€5,0S% to ava end ootenid edt of bieq — eet 
eetentt ..1b — +1 4A of —X s2selet s* voreua⸗ oid ont 
tod ak sdas) ,2t ‘to diolteb edt to nooos mo sdis0 A) ot ant ay 
Yo mye orld at mites .M yLtal to bewt yo buns ert of nottsdbrdaoo 
‘estd to reddien erowans tkedt to yatity edd tise * +84 068,088 
z'oeteniy ofd to mot ois oc molsootdo yas ebam bart — 
Gor? oub od of edmemosose outs yd anoe etewoms ext (9F 10 eduomodate 
«dtusos istat eff ,ettotied yntvetxe ors to tausooos mo omtd oF oats 
setautd eats xd bewollot estsos1q edit oq bedsreumoo soln tqo the at 
edt tase’ wordt yest todd bles bots stewed ond ‘od eoltueq oct bas 
thos brs. auosos edd paktate § eaw sedenit est wort sateb eaw ebdeust we 
© eedaiud exis to doubaos edt mo Lsvorgqs to qaste ⸗ tog cnoitds “0 


» baad 


ns at adusfleqqs ond “6 Hots netnes dmezerg odd dont eto at $I | 
bend ods 


zolsusq edt to Iie ausox — to botteg s t8vo tadd bas Ielguodd reste ; 
ont «Vitoor109 agayooos att aitky eed asw sedans nid add Bostmgover 
5 pitt rt irs 
att tqoxl cates ods add gniatete nox? boquosee wom os east toons | 
wi ih hy viddorsoent arees 
is bo a 
gotlitd .D ooaerg — d bios two Isixt edt 
tlose erew exist a Srodtolf ‘bas Cozau 9 Yall eensmodbad® “9 vita 
onoten es 3 
sdtorieb eds to digneveeoone to aogxs ead ot —** * eldatl 


besos best 
basen todd ak gallon ‘idemes “sat he its oW 
; p EE » ton 4 BS Peas 1J twig RXC mak a 





a4 Si 

But the appellants contend that, in any event, since the 
liability of Charles R, and Richard T., Jr., in reference to the 
annuity was reduced by the agreement of June 2, 1922, from $100,000 
to $85,000 the agreement of June il, 1914, could not impose on the 
other members of the Crane family a liability as to the annuity 
deficits greater than the “high bidder" could be compelled to pay; 
that after June 2, 1922, the "high bidder," Richard T. Crane, dre, 
could not be compelled to contribute to a deficit existing on any 
basis other than $85,000 per annum, and therefore $85,000 per annum 
was the basis for calculation of the annual deficits so far as the 
other members of the Crane family were concerned; that the trustee, 
in continuing to charge the other members of the Crane family with 
one=-seventh of the amount which would have been required to pay the 
widow on the basis of an annual income of $100,000, failed to give 
proper effect to the reduction in the annuity fund as provided for by 
the agreement of June 2, 1922, At first blush there would seem to 
be equity in this contention, but a careful consideration of the 
question involved convinces us that there is no merit in it. The 
agreement of December 2, 1912, constituted an obligation which inured 
to the benefit of Emily H. Junkin, and the obligation of each member 
of the Crane family under the family settlement agreement of June ll, 
1914, was a several and not a joint obligation. The agreement of 
June ll, 1914, signed by Charles R. Crane and Richard 1. Crane, dre, 
recites: (Article II) "Within thirty days after the terms and form 
of the bonds and mortgage or trust deed hereinafter provided for shall 
have been agreed upon, and Herbert P. Crane, Kate C. Gartz, Mary C. 
Russell, Frances C. Lillie and Emily C, Chadbourne (who together with 
the parties hereto are the sole surviving children of Richard f, 
Crane, deceased) shall have executed their several consents to the 
terms of this contract, in the form hereto attached * * *," Article 
XI recites: "* * * therefore, the sabd Kate C. Gartz, Frances C. 
Lillie, Mary C. Russell, “mily C. Chadbourne and Herbert P, Crane 


do severally agree to pay on demand one=seventh of all money which 
may be due and payable under said agreement of December 2, 1912," 


— 
ae 
eit eonte ,gineve yous at ,tadd bmodmoo asasilonyy exis *. ot 
sit of somotetot ak y.th go bisioii bas B of — 20 Widest 
000, 00z% Mort .SS@L .S omnl to Some ouas sit ¥d booubor — \o Lemans 
erlt to sevoqut ton biwoo ~ALOL LL enul to jnomeorgs exis 00,282 ot 
Ysinuas off of 2s yYtifideil s yLbmet Oat eatt to erodnon ‘toiso 
ivsg o¢ belieqmoo od hives “iibid dye salt aeg⸗ e ed torob 
comet) 4T busdodi "yrebbid dyid” ody ws5el .8 soul reF2a tests 
* yas mo aetdeixe Jkottob s of studbutnoo of beLteqmoo | ed on. Biwes 
mus req GO0,R6> orctetedt has yunas 198q 000 88% asd xeKito atesd 
edt as ist oe etlolieb —— eis ‘to noid sLuoLso to% etasd ody ssw 
eostanis odd Jadd :bonts9neD S198W Vise? ene70 oxi * rodnon xedto 
dtiw Lime? enet) edd to exsdmom recto orig egtsdo os patcts00 atk 
efit yaq o¢ beaispet ased ved bivew ‘dokdw Jrujons oxi to aidaeve - 
ovis of boltei ,000,001 to emoont Lams ns to atead ‘ext 0 wobtw 
yd uot bebiverg as baw Ys Luntis exld st nob uber oid oe toette ogete 
ot mooe blwow exodd dewld deatt cA sset 8 ont to $ 








rary we bee NE 
Se SP waht — ‘stobicod 09 andy at PR: od 


edt ti at tirom on ek ovedt taxis es seontva09 boviovut gottesup 


L0G eT % 






** to isiw aol ayiido as betes tienco Sie 8 redaso0d 20 3 


iy ee? By B 
“todmem dose Yo soissylico ond bas estas oH La 20 3 toned eds of 
3 O) Sati 


ut onus to dnemeorys Suomeltdor vitae —2 robes itm? emer ants Pood 
| to dmemoengs oT .nobisgiide tatot s Jou bas Lovevea 6 eaw ae 


aug £12 


«2% (920879 4T brad an bas ened of eoLnasty xs bomgte ele ght ot 


«10% bus euriod oid — evsh — — 2 (IE storia) ,jeetteer 


Iisse 10% bebivorg sod Leniored boob ⸗eua⸗ + 0 eyags 0m bas ebnod ‘edd ‘to 
.d Yxsll yadtad .9 efi cone ‘af droduell ‘ba so boomgs aged ovacd 

id bw sedisozod oxi) enmodbasiy “0 veh bas frsveng “0 aeons Aloeeun 
——— gakvivase ofoa “ed ors oferei ———— ous 

| edt o¢ edmeasioo iesevee atoms ‘betavexe eves Lisde (Boase20b eens 
efotizA ",% * * dedoatds os ered s10% ous at {sostiaoo asia ‘teamed 
29 ‘goonstt ada 2 etek base orid eororeredd * # ” a * 


— * aon bas eawodbad * “ta Aterean * ‘yaa ——— 


anit 


“Moher — Ls * — ————— Passed HO. Yau oe conga  Tkaseves ob 
M.SLOL 4S sedmsced to tnsmeergs bise tohax oldsysq bas sub ed vant 





J 


J 


4 

Article XVII recites: '"* * * and the parties who have executed 
the consent attached hereto severally agree that they accept the 
stock allotted to them in Article X * * #," The so=calied consent 
agreement contains the followings "* * * we, the undersigned, 
being children of Richard fT, Crane, deceased, and stockholders 

in the Crane Company, do severally hereby agree, each with the 
other, and with the seid Charles R. Crane and Richard fT. Crane, 
Junior, to all the terms and conditions of said agreement, so far 
as the same affect the Crane Company, or ourselves * * #," In 
several other places in the "consent" agreement the words "severally 
agree" are used, In the trust agreement of June ll, 1914, The 
Northern Trust Company is directed to keep separate accounts with 
each of the parties and to pay from the dividends received from each 
1,000 shares of stock transferred by each to the trustee one-seventh 
of all payments to Mrs, Junkin which shall be made in accordance 
with paragraph 2 of the agreement of December 2, 1912. The reduce 
tion in the amount of the guaranteed income to $85,000 by the cone 
tract of June 2, 1922, did not affect the obligations of the other 
members of the Crane family under the family settlement agreement, 
Charles R, Crane and Richard T, Crane, Jr., in order to secure the 
agreement of June 2, 1922, were obliged to release Mrs. Junkin 
from certain obligations and undertakings assumed by her in the 
contract of December 2, 1912, Any member of the family might, 

for a consideration satisfactory to Mrs. Junkin, release himself 
or herself in whole or in part, of the obligation imposed by the 
family settlement. As we have heretofore shown, the appellants 
for many years construed the agreement in question to obligate 
them to pay, quarterly, to Mrs, Junkin their proportionate shares 
of any deficit. It would work a grave injustice to The Northern 
Trust Company, as Trustee, if the instant contention of appellants 
were sustained. 


Several other contentions are argued by appellants in 


their brief, but it would unduly lengthen this already long opinion 
to analyze and comment upon the same, Suffice it to say that 


be 

ape 
betwoexe ovat osw xolsteg oft bas * © HH szottoot LIVE ‘olottas 

odd das avs Yers tadd ooxas YLicrevee ototed berloatts tneinos — pas 
Jaeenes belivomo, ait ",# * * X oLokieh mi wedt of betfoll[s avote’ 
shongiarobia oid gow # * W cgutvelfot ‘edd Entities insmberys ° 

etehladdoote bas ,beassoeb ,enstd .f basilotA to netbLitio gated’ ~~ 

acd Adin tose yoomgs Yietod yLLgreven Ob yynaqniod suet) edd mk” 

yotatd sf bustioh bas ener A eokusdld Bise end dé tw’ Bas (rant ~~ 

Tei of yinemeorgs bise To emeltibnoy Bas emted ony LEe os roth °° 

al %,* * % asyloewo to .yeqmod onatd edd doetts ome edt es °° 

yilsiewee"” abaow ont daemperge "“Ineenoo” edd mt weostg rerio Isrever 

ont ghMe@L , Lf enw to tmemostgs testt off al Jbeet ots “serge © 

dtiw atquosss otereqer goal of botootth ek ynsgaod tenrT wredixo “~ 


dogo amxt beviecet ebsobivib edd wort yag od bid esbtiakg of? Yo Hbae™° 
— voted esit of dose yd beTrotenetd Aoote Yo kerala 000,.f°° 


ee as ne Stk 


semebieces af bam o€ Slade sohiw givuw) eal os etnomysg If te "” 
~oubet aif .SL@L .S vedmaved to dnomserys orld 10'S dqetgetag Mtbw ~~ 
~aoo oft Yd 060,285 of smoont doetaaisvg ofl? ‘to tevome etd nt nokt” ~ 
raiso els Yo enoliaylido oft SooTis son bEH ySSOL ys sa to sosat’””” 
-tuomeonge Smomoljsee YLitust eid sohas yLtmst enet0 edt to exodnen’ ” 
edt omese of cebte mk 4.1% sels .T Buadoll bas Onetd .A wetted °C 
. tibptuvl yet saseLor of begiido evew ,SSeL' 4S ect to saomesays —~ 
gsi ak west yd bones egatieivebay bus enoktsytice eee: —* 
_ gheigha YLliast Scl to todmem yor. .SI@E 4S sedmesed- ‘to’ dosisneo 


QMoamtd cessler ,cidowt .atM of yxodostatsst nolsstobieaos Prt, Sa «4 


at Yo bowodatt notsagitde ons Yo tied abso sLodw nk teewed to ~ 
etagiLeqqs add ,oawode exototered eved ow oh .dremelisoe —* at 

. stagildo ot sotseeup ah tasmeotgs ‘orld Besstenos erase yaametot ”” 
eotsde stanotiiogoig tleds aisinnt es or Uitettaup’ ytee oF meg 
aiedsio% ed? of eokventat ovary sultow bioow tI. \rekveboyme 20°" 
adtslioqqs to notinesnoo tastemt “odd "TE 58 — ee Visqnod gere 
ith Piet — (2 boar wil. geagse — — 
nk waaliogds qd boxgaus ↄns anctonoonos ·aoelas teteven) "OT 
nolnkge. gator wbsorla abdé. femdusienl — bLssow. — a 
sats we ‘od GE ebPviwe  Semse bad noqw tiéamoo —— in j 





47⸗ 
we find no merit in any of then, 

Since the appeal was taken to this court Charles R, 
Crane died and Central Hanover Bank & frust Company and 
Lawrason Riggs, Jr., as executors of the last will and 
testament of Charles R, Crane, deceased, were substituted 
as appellees. 

The decree of the Circuit court of Cook county is 
affirmed, 

DECREE AFFIRMED, 


Friend, P. J., and Sullivan, J., concur, 












besosaxe eg ole ne ks — tS iy OR a : 

test ao -. oe | ae Tae ee 
Susan * — pn 

—— * ot: J 


ES oh Wate e? ae coun 4h aebandl® Bow eld! aa vt 
8 amon Acod 20 two ⸗auerto sd? 20 sexpeb exft 


tM paella: eWiagaes wintt elt dost he daa 


CME GALES git aevl te tmeeeotga Paper oh ak eee ote" re 
AS i Sheen Cee ON co REIT, 428, GAVEL Bene ok eet 
i sees WAL dariscws abechlvid edd sort vag et bt RORY allt 2e't 
| dtneremars PRwaS edt OF Toke Ee DeTee tant aeode to weiee 
& Seaeiieces af shan od Linde deta gigas ae a7 Riwoiney” its ee 
— OOO. BE SLE gi weds to sompetys why. rod Nqirtyarce ae — — 
Ps: oft: YS COR, RRR od sxoonh Soodmeanyy ef te manapthersicli vil ng | 




















—— Some lesen ~hima'y oe aohae — —“ — 
Celene iat eebew ak (ach yates 8 Smesio hk bas taexd * * Aauo 


—oo,, weet ide — ñ⸗ Br 
 geeig ke Tila) atom redeme Wt SRE S ride to’ 9 a% ni 
Sietaid sacnler .hist 10 or poet omheti ad ao lsntubleaes a * 
«aeld WU hace oe eg e eats So gd qe ek rm eLiealte ek sceueid ae 
athaLiogge oS , iwi euclude ud oved ow AY aren athes 


pram OR CME et ea dtentkh ovat eee De —— 
; soma Mys Ie netinedwse Sashes teas UE ——— ta” * 
re . Leong ys pengts wae —E— A J 
+ —— ates: eres smth i 
ald ee af 38 bila 


Ve 


ALBERT J, HORAN, Bajat 
of the Municipal tot ; 





Appellee 
MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 

T. E, Hardy sued Albert J. Horan, Bailiff of the Municipal 
court of Chicago, for demages. Ina trial of the cause without a 
jury the court found the issues against plaintiff and entered judgment 
in favor of defendant. Plaintiff appeals, 

Plaintiff's statement of claim alleges that on February 
3, 1938, judgment was entered in his favor against the Kessler Motor 
& Engineering Corporation for $4,885.46, im the Superior court of 
Cook county; that on the same date a writ of execution was placed 
in the hands of the sheriff, and "that thereby and from that time 
plaintiff procured and at all times since had a lien upon all of 
the personal property of said judgment debtor, 2. That notwith- 
standing said lien, the defendant did levy at two separate times 
executions upon personal property of said judgment debtor and did 
sell said property at execution sale as follows: Writ * * * levied 
March 11, 1938, and sale, March 22, 1938 for $300 to M. Klass of 
the following property: * * * [Here follows a description of the 
personal property.] Writ * * * levied March 22, 1938, and sale 
April 1, 1938 to A. Rice for $211 of the following property: * * * 
{Here follows a deseription of the personal property.] ‘The proceeds 
of each of said sales satisfied the claims of the judgment creditor 
in each of said executions which was the Illinois Malleable Iron 


Company. 3. That said property was delivered by defendant to the 

aforesaid respective purchasers. 4, That the property thus sold 

was greatly in excess of the amounts bid therefor, and that said 
Sales, and delivery resulted in depriving plaintiff of his rights in 







JATIOLINU WORT 
2 ODAD 


‘O88..A.I S08 


— SHT 10 HOIMIGO BRT GAREVIGHG WAAMADG SOTTAUL AM 
LaqtotwM ed to TItLiel .astoH .& sredLA bewe ybtall oo 4, 
& tuodtiw eemss odt to Isiat ao al enogensh sot ,ogssidd Yo Jamo 
dnemghs bovedne bus Yidately tathsys aeveet asd bavot s1wos eult vst 
-eiseqgs itidnisit{ .suashaetebh to tovst at 
Yrsuidel mo Jadt eogsiie ais{o to jnemetete e'titivatsi41 | 
wove aslaeoK of temksys tovst aid af botejme asw Saomgbut .8Eel yf 
to tavoo tokrequé ond mi .d4.288,48 tot motstoqrod yationtgal 4 
Seosiq asw soljuesxe to tii «6 steb ose ost go tadt yytawoo Wood 
emit Jady moult bas ydersedd teld" bas ,Titwede add to ebasd edd al 
Yo Lis moqu mei s bac eomte eomtd Ife ta hue bewoorg Tiidataly 
~itiwion taiT .S ,1otdeh snempbal, blue Io ysaeqo1q Lamoateq edd 
gomid etateqer ows te (vol bid Jasbacted odd yaoll bise yatbusta 
bib bas soddob inemybul bisa lo yreqomg Ismoeteq mogy anoliuooxs 
betvel * * * gicv s:eawollot es sise molivoexe ts yuoeqoig biee Iloe 
to aeslA .M od OO€% tot SECL ~SS dow .olez bus ,BECL Lf sot, 
eit ‘to moitqtzosed s ewolfot oxo] * * * rysaoqoug gutwolfot edd 
else bus ,8€CL .SS dors betvel * * * tia (.ysueqowd Lenoereq 
* * % sytceqorq gutwollLot edd to LIS@ tot sok .A ot Lkuga 
abecsorg eff [.ytxeqoug denoeteq est to molgqitoesh s ewollet exe) 
rodibero Inomghyt ed to wmbslo etit befletise velse biee to dose to- 
motl sidselish elontifI edt asw dobdw enoidyoexe biee to dose at 





edt of tusbaetob yd betevifeb 2ew YWueqotq bise tad? .€ .ydeqmod 
ioe awit yoxoqota odd Sak? gh wereeadome evivooqeot biseet0ts 
bise tedd bus ,toTetedd bid ednwoms edt to eesoxe at yYivseTg ean 

at eddgia eld to Tittatelg gnivicqod at bediveor qrovifob’ bas yeelee 


od 
ol ——— 





2am 
and lien upon the above described personal property; by virtue of 
which he has suffered a loss and injury to the extent of the value 
of the property, namely $990, for which damages be brings this suit." 
The following facts are undisputed: On February 14, 1936, 
Illinois Malleable Iron Company leased the premises at 7720-7722 South 
Racine svenue to Kessler Motor & Engineering Corporation, The lease 
was in writing and expired February 28, 1938. On February 2 or 3, 
1938, a judgment by confession upon a promissory note was entered in 
the Superior court in favor of plaintiff and against Kessler Motor & 
Engineering Corporation in the sum of $4,885.46. The record of the 
judgment introduced omits the promissory note, or a copy of the same. 
The date of the note is not shown, On February 3, 1935, an execution 
was delivered by plaintiff's attorney to the sheriff of Cook county. 
On February 25, 1938, a distress warrant was served on Kessler Motor 
& Engineering Corporation by the Illinois Malleable Iron Company and 
possession was taken of certain personal property of the Kessler Core 
poration, On February 26, 1938, distress proceedings were commenced 
in the iunicipal court by said landlord against said tenant, On March 
5, 1938, forcible entry and detainer proceedings were commenced by 
said landlord against said tenant, On March 11, 1938, a judgment was 
entered in favor of the landlord in the distress suit, execution was 
delivered to defendant, Bailiff of the Wunicipal court, and personal 
property of the tenant was seized and levied on by defendant. On 
March 15, 1938, a judgment for possession and rent was entered in 
favor of the landlord and against the tenant, and on March 17, 1938, 
exeuution was delivered to defendant, On March 22, 1938, a sale was 
held by defendant under the distress for rent executions also certain 
personal property of the tenant was seized and a levy made under the 
forcible detainer execution. On April 1, 1938, a sale was held by 
defendant under the forcible detainer execution, On April 20, 1938, 
defendant was notified for the first time of theexistence of plain=- 
tiff's execution. The instant suit was filed on April 30, 1938. On 
May 3, 1938, the sheriff made the following return on plaintiff's 
execution, "No Property Found and No Part Satisfied," 


ia 
b 


( ace 
to estaiv yd :ydusqorq Lanoaveq bediisesb evoeds edt moqu meltl bus 
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ddwo® SSYV-OSSY ta eectmerq edd boesel ymsqmod worl oldselLa etomtiIT 
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at bowstne 2ew stom Ytozelmorg s moqu nokeestaoo Ve drombut a s Seer 
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beonemmos sisy ayatbeosorg eeotsels SFO de yrswtfe’ pn 
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asw Sought s ,S€CL gif dorsi nO Jdnamey Dae Senhsys BieRitel Bise 
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m0 .tnshae'teb yd ao bekvel bas bextoe asw duaney Sit — 
at betedas ew doen has nokesoasog wor tremyint « .B6er- et metem | 
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asw else 8 , Beer 8S dosti «0 ,tasbae'teh of beveviteb ¢aw moRiipexe 
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oad robsw eban yvel s bis besiee eeaw taated et to ysibyody Latoeteg — 
| xd bled asw else r “BERL of fiagA #0 .sotiuvexe ‘remtsd>S “oft foro? | 
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“eaksiq to Sodetaixs edd Yo" emis Paxtt edd 267 belton eswsashmoted — 
“a s8ECL (OE Liga no DOLE? aw She dHaveRt ad GmOttkoexeetItty 
C Pherae ko wanton — * ban tana act 86 ahve 






oo 
fhe contention of defendant, in the trial court, and here, 
is that plaintiff lost the lien of his execution by failing to use 
diligence in enforcing it, and the trial court was evidently of the 
opinion that the facts sustained the contention. That a creditor 
may lose the lien of his execution by failing to use diligence in 
enforcing it is clear, In Freeman on Executions (3d Ed.), Vol. 2, 
sec, 206, the suthor states: 

“By the statute of 13 Elizabeth, c. 5, executions taken out 
with intent to hinder, delay, or defraud creditors, or others, are, 
as against the persons sought to be hindered, delayed, or defrauded, 
utterly void, The operation of this statute upon the lien of execue 
tions has been the subject of very frequent judicial decisions, and 
of occasional judicial dissension, According to a very considerable 
preponderance of the authorities, no actual intent to hinder, delay, 
or defraud any one need be shown, What was the intent is a conclusion 
to be drawn from the acts or words of the plaintiff in execution. If 
what he did or acquiesced in was of a character to hinder, delay or 
defraud other creditors of the defendant, his attempted use of the 
writ is, in contemplation of law, fraudulent, and henee no lien or 
other advantage can result therefrom as against such other creditors, 
nor even against innocent encumbrancers and purchasers. 

“An execution and its lien may be avoided by such conduct 
on the part of the plaintiff as shows an improper use of his writ, 
though the motives influencing such conduct, instead of being fraudu=- 
lent, were grounded in kindness and charity toward the defendant, 
and free from the slightest design to injure others, The only proper 
use of an execution is to enforce the collection of a debt, and to 
enforce it with a considerable degree of diligence, To employ it for 
other objects is inconsistent with its nature, and such a perversion 
from its legitimate purposes as brings upon it the penalty prescribed 
by the statute of Elizabeth. The plaintiff in execution may desire 
te allow the defendant time in which to male payment, and yet may 


wish to save himself from all hazard arising from his delay to enforce 
the colleetion of his judgment, He is likely, therefore, to take out 


F — 
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oii Yo YLtnebive asw Suyoo Labw edd bas ott yaloww'no wt conoghits 
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mk otregiith eaw ot gakitet yf solttueexe elt to nehl ond enol Yea 

aS .feY (be bf) anoliveaxt ao msmootl al ,asefo et ¢f yatoultne 
teeteda todius off ,d08.. 008) 

suo delet enoitueexe .& .o 4ivedenlif {1 lo etnias. edd ya". gbEOr 
ets gotedto to ,ntodibere hueatteb t¢ .ysieb ,1bald of dnetnt ddiw 
pebusrted to ,beysleb ,betebatd od of tiguee emoeveq alt Seitegs ws 
syns to mohl odd moqs siutsde elit to mektverege ont ,btov ylvoxde, 
bia yemolatosb Ieiolbyt Jasepest yrov lo deetdbe edd med’ ear ancktt! 


| oidersbianoo yiev 6 of yakirose, .mokanceeth Isltothot L[anokessso0 to 
“qaleb ywobolt of dnodat Lentoc on 2ethtuedtus ey Yo. sonprebnogesg 


: sotanfones a ei tnbimt ost eav tad! .owede od Bear ono Yas buatteb to 
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to Ysleb .cobrii of vetowtads 3 to aew Mt beossiupas To bib en tatw 
ait to sey betqmecds cid .inebnoteb eff to exodibets werite busviebd: 

6 sol on sened Sao ,tnelubeett ye to mottafqmetnoo mt ak tha 
qetoitberp todio some Jaxlega ex movtetedd tiveet md sgetusvbs sedto 
toubmose cove, YS bohlove od yom nokl tii bee sobswoexe aAY ov lho 
,titw eis ‘to sen segeuget as awotle eo Tilbimielg ait to Jxeq ett) no 
~whuatt gated to bastuat ,toubavo dome yatonewT'tal eevistim edf iMyiond! 
| qitishsoieh add basved yhinwlo ins seenkabl mt debavory orem giael: 
qegong Ylno ed®  .24eci¢o ouplat of nyiesd Suntegtix odd movt est Sas 
ot bas ,3deb 2 te noltsellos edd eoncine oF ef moliwoexs as to mer! 

sok St Yakgme Of seonegiith to sowed slderbtenon «Athen th sonetns: 
—s motasovneg a done bas gewian ett dthw tnodatesoent at etostde — 
bodauo oag YEsnoq edd, tt moqe agmbad aa emboqaug otemitigel ath monk 
sotoLas: of | vated aid sont. gttetis baexed) Ife soxt: — * » 








— 

execution with a view to binding defendant's property, but with no 
intent to make any immediate levy or sale, In other words, he 

seeks to convert an execution into a mere mortgage. This the law 
does not tolerate. ‘whenever it ean be shown that the object of the 
writ was merely to obtain better security for the debt, it is 
fraudulent as against subsequent purchasers or encumbrancers, and 
outranked by subsequent executions, Rarely has this object been 
proclaimed by the plaintiff in execution. It is inferable from 
express direction to an officer not to proceed with « levy or a sale, 
or from any language or course of conduct from which vhe conclusion 
may fairly be drawn that the plaintiff did not intend to make his 
writ immediately productive, but rather to secure the advantage of a 
lien on the property of the defendant." In support of his statements 
of the law the author cites a number of cases, including Sweetser v. 
Matson, 153 111. 568, 582, and Everingham v, National City Bank, 124 
Ill. 527, 536. 

Plaintiff was a stockholder in the Kessler Motor & Engineer= 
ing Corporation and his attorney "took care of the records and 
minutes of the company" from the time that plaintiff bought the 
stock, Plaintiff's attorney knew that the Kessler company was in 
financial trouble and that the plant was closed. He testified that 
after securing the confession of judgment he took the writ to the 
execution window of the sheriff's office; that he attached to the 
writ, by a paper clip, a separate piece of paper upon which was 
written the address of the defendant in the suit; that he handed 
the writ to the clerk behind the window and the clerk asked him 
if he wanted it returned nulla bona or if he wanted a lien served, 
and he told the clerk that he wanted it made a lien and to be serveds 
that he also told the execution clerk that he had been informed that 
the landlord who owned the building had placed a padlock on the doors 
of the plant and that so far as he knew there was nobody at the plant; 
that the clerk told him the fee would be $2,60 and he paid that atount 


and got a receipt for it; that he gave the sheriff no other instruce 
tions in reference to the writ; that he first learned that the land= 


—be 
on sitiw iud ,.ysusqoug &' Jasbasteb aathats og yeey, a 44 “————— 
ad bao⸗ tedso al else 10 Yel ots themut vas, eam ot fagjat, 
wal. end eld? .ogegt rom orem 8 odnut aota uoene a⸗ aoyxno⸗ os au998 
eit to vot go ent dado coca od mag IE revered’ : ostazelot Yon Bist 
at gs stdeb coe tot “ys tose redded aeddo od orem, 2sw — 
bas .Bteonsrdauione 10 erezasiousg jmeupee due “datage Bs swe Lubvatt 
mood footdo aldd ead yLleraf -anolsuoexe dnoupoedue va. beinet1o 
ott efdatetut ef #1 .mobiseexe at Tiltatelg at vd pomtaLoong. 
—8 & TO yrel 8 sit tw bevsoxg og tos Teoltie as o⸗ aotrooth zao t cx 
notasLones ene do telw not toubeos lo ee 1NeD ‘10 ‘egemuaal yas cy by 
etd osm oF bnodst Jon bab Yiitatele sly Jedd sat od uts?, yas. 

& ‘to egatasvbs oj susoea of tefitet sud sevivoubo7g Ustatbount ; shaw 
ejnomed ste aid to Saoqqwe aI ",dnabasted edd to Wreqend, ond * 
——— gatbnlost engage to tedanmmi s aed to Toms sa onit_ was ‘i to. 


ni bon «SSR 480% LIT ERE gonad 
298 ,VSE o LIT 


‘wteontaat 4 % todoil solezoX oat at sebLoritoose 8 asm Mittatess 





eh Sadie 


Se abrove1 ot 30 S789 woos" Yontossa abd as —— Bat. 
ont dedguod Vitiabsiq tadt omts odd wort —— odd oe water 
} at saw Ystaqmoo tolzeeX edd tot went ‘Yeaxorts nuausta 4. 


LOM Ree 
‘tails beltidess of -bezolo exw tnalg oxi Sad bas Meeex.. —8 ame? 


ent ot thuw odd Aood ef tnompbut | * gotesetnos ens _patiose t9sts 
eit ⸗ besiostis of sald ,ooltto eriatsede ods 20 wobatw 1 nod tivosxe 


Sry m0 


4 dokdw soqs 19q3q to saeiq oauagee s sable. teqsd 8 Bs stim 
pobaert ad Sass io ive extd: at tasbasteb te. Beembbs Spi 
‘ait beiize aceLo eid bus wobmtw ed? abled xxeL0, edd of pre 
sbovise aeli s bedaew ed 1i 10 gged sling beniyset tf be: * od Th 
tbeviee od of bas sell s ohem ii betnaw od tad} aAselo edd blot ed. bas. 
sands becrotnt ased bad * ⸗etd — aolaore odd _bLos oats, hes Feild 
etoob oxi 0 Agolbag 8 bevel batt gathi ied odd bomwo, bss asl ody. 
J o⸗ ts ybodou aw etedd weet od es 18%, oe tacit bas taslq silf,29 
⸗cuers a bisq od bas 0.88 od binow eet ont mks Bios. anole end dst, 


ay F — 


ñ— redao on Aao sat, svsg.ed gat gti tot dgiece1.6.Jo3 bas. 
-brisl odd gadd bemtesl Jack? ondeFedh pilwods sot. ROCIO AE RORAR? 








je 
lord had made levies on the property of the Kessler Motor & 
Engineering Corporation after the levies had been made; that he 
had known Dr. Hardy for five years before that time; that he did 
not know the name of the man at the sheriff's office to whom he 
have the writ; that he doubted very much if he would be able to 
identify him; that he had had occasion to place other writs with 
the sheriff before the one in question; "Q. * * * I say you told 
the sheriff to serve the writ? A. Of course, I did not tell him, 
He asked me if I wanted it served and I said, 'Yes;'" that he knew 
at the time that there was no one at the plant of the Kessler company 
to receive service of the writ; that the address he wrote on the paper 
attached to the writ was the address of the corporation; that he did 
not know what officer of the corporation to serve and did not give 
the deputy sheriff the name of any officer to serve; that he told the 
deputy sheriff that he did not know who was the president of the 
corporation, 

The original writ was introduced in evidence, It had a 
large capital "C" endorsed on it. It did not have attached to it, 
by a paper clip, a separate piece of paper upon which was written 
the address of the defendant in the suit. No address appears on the 
writ. Edward McCarthy testified that he was execution clerk at the 
sheriff's office and had occupied that position for eleven years, 
The witness, after he was shown a photostatie copy of the writ with 
the return thereon, testified that the large capital "C" on the writ 
meant that it was a case writ, that is, a writ to be kept in the files 
for ninety days unless the attorney came in and signed an order blank 
to return it to the file; that a case writ "constitutes a nulla bona 
return at the end of ninety days;" that the writ in question with 
the return thereon constituted a nulla bona return and the return 
was put on at the end of ninety days, "at the time of the expiration 
of the writ;" "“q. This is a case writ, isn't it, Mr. McCarthy? A, 
That is a case writs" that a writ is called a case writ there the 


attorney really does not want it served, The witness was then shown 
the original writ and after examining it testified that it is a case 


( be 

& tojoM telegok add to ysxtegorq edd mo aotvel sbam bad B10L 

et isd? yebem sosd bad aetvel edd tette moltistoqiod yatseeniyal 

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‘oxi morw of soltto e’tibuede oft 3s sem edd to eater od? wool ton 

of olds sd Biwew of ti soma yrov Boddwob on ted? {ttaw “ors eved 

diiw adivw randvo sosig of notesooe bai bed ed tans quid Ybidmebt 

&ies moy yse T * * * .O” gookyeswp mt eno end eioted Ttitende ont 

eMkd ILot tom b£b I ,oeqwoo 20 4A SSiaw ofd evie8e OF TItrone ‘sens 
‘wera od Jats "'y20¥! ,bise I bas bewise Ft betasw I If om beales ‘sh 
Yoeqmon releeed ols to tasiq wiv ta ono om waw otedd Sarid omits Sis Se 

Tejaq eso me stow ef easubbs eft Sand ydtaw ond ‘to solvise evicost o¢ 
bib ext tosis qaolisieqies end to aeetidbs eft asw Siow ont oF borosits 
evig gon b2b bas svise od Aotyetoqioo sid to TeslTIo taiiw woml Jon 

ont DLot eri staid povree of cookie Ys to eset ond Triwile Yugeb edt 

. 93 to dnebhesuq ost ew osfw wotl Jon Std od Yadd V xotie ythged 

. Mott stogred 

sp dei SI .eonmebive at beombotdal esw tinw Lantgito eff 

wit @d bestosits oved tom bib I Wh no beetobae' "35" ed tysd opwal 
asdtiuw esw doit meqy teqs¢ to opeic SSsisqee & ,qilo teqaq s Yd 

eid fo eispecs zeotbhs of tive edd at tasbmeted bd} to eaetbbs® ext 

edt ts Mxefo aoltuoexe esw ed sadt bekitiess witus0oll biswhd . tio 

s8729Y aevele cout aoivizog tadd betquecs bad bas eolkito e*tttrede 

dtiw iw edd to yqoo otistsesedq s mrode asw od tod ?s eeontiw eT 

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snod sign» astjuiivaneo" Jin easo s fadd.GoLttodd of $2 mwsew of 

,  gidiw aobteoup ai giaw od galt “peysb yYeatn lo bao od} Jd mintot 

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, 


26 
writ; that he generally has the attorney put the address on the face 
of the execution; that sometimes the attorneys bring in a slip of 
paper with the address on it but that he generally takes the slip 
off and writes the address on the writ. The following then occurred: 
"9, Now, if that writ were to be taken with directions for actual 
service at 7720 South Racine Avenue, would the fee be $2,607 A. No, 
it couldn't be. @. Couldn't be, that is right, isn't it? A, Yes. 
Q. But in the ease of a case writ, the writ which is merely to be 
held for ninety days until it expires, that fee would be $2.60 as 
indicated on the writ? A. Right." The witness further testified 
that if the writ was placed for service the fee including mileage 
would approximate $3.50, The writ itself and the sheriff's receipt for 
fees both show that $2.60 was paid when the writ was delivered to the 
sheriff, There is nothing in the record that would warrant an infer- 
ence that the sheriff acted dishonestly in the matter of this writ, 
Plaintiff was a stockholder in the Kessler Corporation and 
was able to secure from that corporation the judgment note in question, 
Plaintiff's attorney took care of the corporate books and minutes of 
that corporation, yet, upon the witness stand he attempted to convey 
the impression that he was not sure of the address of the plant of the 
corporation. He testified that he did not know the address of the 
president of the corporation; that he did not know what property the 
corporation had in its plant and that he did not know the location of 
any chattels that belonged to the corporation, He admitted, however, 
that he told the execution clerk that the landlord had padlocked the 
premises, and it is evident that he then knew the corporation had 
defaulted in the payment of the February rent. As a lawyer he knew 
that the landlord had the right to distrain for rent, yet, after he 
placed the writ in the hands of the sheriff he never inquired of that 
official as to the execution of the writ, Defendant's affidavit of 
defense alleges that plaintiff “had at all times knowledge of levy 
of the distress warrant and the levy of execution by this defendant, 
but did not take any steps to make his writ of execution a lien upon 
the personal property in question." Plaintiff filed no reply to these 


| 


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allegations, On February 25 the landlord seized certain property of 
the corporation, and proceedings in forcible detainer and distress for 
rent were instituted against it. On March 11, 1938, the bailiff took 
possession of certain personal property of the corporation, On March 
22, 1938, another levy was made by the bailiff, Two sales of the per- 
sonal property of the corporation were held by the bailiff. We must 
presume that the property was sold pursuant to the notice and advere 
tising that the law requires, yet, during all this time plaintiff did 
nothing to enforce his judgment. The Bailiff, a disinterested party, 
had no reason to hinder plaintiff in the assertion of his rights, and 
had no knowledge of plaintiff's claim until April 20, 1938, which was 
almost one month after the first sale, and nineteen days after the 
second, By April 20 the sales had been consummated and there was 
nothing that the Bailiff could do to aid plaintiff in enforcing his 
rights, There is much force in the contention of the Bailiff that 
plaintiff or his attorney must have known of the steps taken by the 
landlord to enferce its lien, There is also force in the contention 
that plaintiff and his attorney knew where the corporation property 
was to be found, yet took no steps to levy on it. Plaintiff's attorney 
testified that he did not tell the sheriff to make a levy but only to 
make his writ a lien and serve it, 

We are satisfied that under the evidence in the case and the 
law, the trial court was justified in finding for defendant, 

In this court the appellant, Dr. T. Ee Hardy, and Herman 
Wepman, as assignee of said appellant, have filed a motion, supported 
by an affidavit, for the entry of an order that Herman Wepman be sub= 
stituted in the cause for the appellant and that all orders and judg- 
ments hereafter entered herein be in the name and behalf of or against 
said Herman Wepmen in lieu of Dr. T. E. Hardy, the original plaintiff 
and appellant, The motion was allowed, 

The judgment of the Municipal court of Chicago is affirmed. 

JUDGMENT AFFIRMED» 

Friend, P. J., and Sullivan, J., concur, 


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40841 


EMMA HILL, 
Appellee, 






Ve ei MUNICIPAL COURT 





NEW YORK LIFE insuRahge } OF CHICAGO, 
COMPANY, a corporation, 


Appellant, * 1807 T.A. 381 


MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 

Plaintiff, beneficiary in a policy issued by defendant, 
sued to recover the additional double indemnity benefits of $3,000 
on the life of William J. Kropacek, her brother, The policy was 
in force at the time of death and defendant paid its face value, 
$3,000. A jury returned a verdict finding the issues for plaintiff 
and assessing her damages at $3,175. Defendant appeals from a 
judgment entered upen the verdict. 

The double indemnity clause of the policy provided: 

"The double indemnity * * * shall be payable upon receipt 
of due proof that the death of the Insured resulted directly and 
independently of all other causes from bodily injury effected 
solely through external, violent and accidental means * * *, 

"Double Indemnity shall not be payable if the Insured's 
death resulted from self-destruction, whether sane or insane * * *; 
or directly or indirectly, from infirmity of mind or body, from 
illness or disease * * *," 

The insured died on December 27, 1937, of "a crushing 
injury to the head" as the result of a "fall" or "jump" from an 
archway window on the third floor of the Peoples Hospital to the 
sidewaik below, The hospital is located on Cermak road and 
Archer avenue, Chicago. In plaintiff's statement of claim it is 
alleged: "On or about December 27, 1937, while said policy was 
in full force and effect, said insured received personal injuries 
through external, violent and accidental means, to-wit: by accidental 


fall three stories from a fire-escape to the ground," Defendant's 








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answer to the foregoing, in its pleading, is as follows: "The 
defendant denies that said death was the result of external, 

violent and accidental means and in particular denies that said 
death was the result of an accidental fall from a fire-escape ana 
avers that said death resulted from self-destruction while said 
insured was sane or insane and, hence, was not a death within the 
meaning of the double indemnity provisions of said policy or contract 
upon which the plaintiff sues," After verdict plaintiff was allowed 
to amend her pleading by striking the words "by accidental fall three 
stories from a fire-escape to the ground," and to insert in place 
thereof the words "by accidental death immediately caused and 
resulting from a crushed head accidentally received and suffered 

and not self-inflicted while sane or insane." 

Plaintiff introduced the policy and a stipulation that 
the immediate cause of the death of William J. Kropacek was "a 
erushing injury to the head," and rested, Defendant's evidence is, 
in substance, as follows: 

F. C. Francis testified that he was the head of the 
passenger traffic department of the Rock Island Railroad and that 
the deceased had been working in his department since 1921; that 
in December, 1937, he sent the deceased to Omaha on business for 
the company; that the deceased was taken ill there and was unable 
to stay the number of days necessary to do his work; that on the 
evening of December 23, 1937, he went to the home of the deceased 
and talked with the latter, who was then in bed; that he "sat down 
by the bedside and talked a little bit" with Kropacek “about his 
trip to Omahas" that Kropacek told him that "he had been taken ill 
in Omaha, had consulted a doctor and that he felt so miserable or 
ill that he decided it was best to come back to Chicago," and 
that he returned to Chicago on the morning of the 22d; that he 
questioned Kropacek “about the nature of his illness and apparently 


his stomach was upset and his nerves, and one thing and another, 


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him a great deal and he could not sieep and I asked him what it 

was, He said he could not tell me nor anybody. I asked him if it 
was something in connection with the work at the office and he 

said, 'No, nothing like that; something personal;'" that he said 

to Kropacek, "Well, if you won't tell me about it, can you talk 

to your brother or sister or your mother?" that Kropacek said, 

"No, it is something I can't talk to anybody about;" that he 

then asked him what his religion was, and he said he was a Catholic, 
"so I advised him that if he couldn't talk to any members of his 
family or me, to send for his priest and have him come over and have 
a talk with him," to which Kropacek answered, "Well, that's an idea;" 
that he began to give Kropacek some advice "about taking care of 
himself, keeping in bed, and keeping warm and eating lightly," and 
so forth, and he said he would; that Kropacek said he “had something 
on his mind that affected his well-being so to speak, so he could 
not sleep and he was worried;" that “after the conversation drifted 
around I said, ‘You keep in bed and keep warm and eat lightly and 
you ought to be able to get through this and come back to the office 
next Monday," And he said, 'No, I will never be back.! I thought 
that was just an idea due to his condition and so I tried to cheer 
him out of that and he said, "No, I am through.'! I said, ‘Why do 
you think that?’ ‘Well,’ he said, 'my ticker’ = and he tapped his 
heart," 

Dr. Roland P.MacKsy testified that he specialized in 
diseases of the nervous system; that he graduated from the University 
of Toronto Medical School in 1925 and interned at the Henry Ford 
Hospital from 1925 to 1926; that he "was a fellow in neurology in 
the Mayo Clinic from 1926 to 1929;" that he came to Chicago in 1929 
and associated with Dr. George W, Hill; that he spent one year in 
post graduate work in Germany in 1932 to 1933; that he was a member 
of the American Neurological Association and was certified as a 
specialist in neurological and psychiatric diseases by the 
Psychiatric Board of the American Neurological Association, that 


— — ma 


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he was "senior in neurology at St. Luke's Hospital" and an 

associate professor at the University of illinois; that on sunday 
December 27 [26], 1937, the day before the death of Kropacek, he 

was called as a physician to the Kropacek home about two o'clock 

Pem. and found Kropacek in bed in the front room upstairs; that 

he made an examination of him at that time, and that present during 
the examination were two or three brothers of Kropacek, “perhaps 

a sister, and I think his mother;" that after he had talked with 
Kropacek for a few minutes, “or tried to," he "carried out a 
neurological examination on him, that is, a physical examination 
with special reference to any disturbance of his nervous system;" 
that he examined "all those functions of the body that the nervous 
system carries out, such as pupillary reactions, the presence or 
absence of muscular power in various parts of the body, presence 

or absence of various reflexes that are normally found, and the 
existence of normal or abnormal sensations anywhere in the body;" 
that he examined the patient's mental condition; "Q. What did 

you observe as to Mr, Svinanek tuntition as a result of his 
examination? A. “hen I saw him he was in a very acute stage of 
agitated depression. He was restrained with difficulty. He wanted 
to get up out of bed all the time, He was very agitated and restless, 
wringing his hands and crying, bemoaning his fate, and stating there 
was no hope for him and that no matter what might be done for hin, 

he was finished." The doctor further testified that he explained 
the condition of the patient to his family "and pointed out he was 
in danger of suicide because of his depressed mental condition, * * * 
Because of my opinion as to his condition I prescribed * * * that 

he should be taken to the psychopathic hospital where he could be 
protected from himself." Upon reeross~-examination, after the —* 
stated that he did not make out a physician's affidavit for admission 
to the psychopathic hospital, he asked to be allowed to state his 
reasons why he had not made out such an affidavit, but upon objection 


by plaintiff's counsel he was not allowed to do so, 





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5 

Joseph Kropacek, a brother of the deceased, testified 
that at the time of the death of the deceased he lived at 31395 
Nermal avenue, where the witness also lived; that William was 
thirty-one years of age, single, and a Catholic; that he had been 
ailing for several years; that his sight and hearing were good; that 
he was about five feet, eleven inches in height and weighed about 
160 pounds. "9. What did you observe as to his mental condition 
* * * just prior to his death, A. tell, he went to Omaha, I 
noticed it after he came back from Omahaj" that after he came back 
"I couldn't observe much of anything;" that he told the witness 
‘he had been overworked and was awfully nervous and could not sleep 
nights; that "he hadn't slept for about a week or two;" that the 
last time he saw his brother alive was Sunday afternoon at the 
Peoples Hospital; that 'illiam had not been in any institution 
for mental disorders; that the doctor suggested that William be 
taken to "Merecyville Sanitarium," "gq. Now, what was this comition 
you observed that caused you to call in Dr, MacKay and Dr. Gilbert? 
A. Dr. Gilbert suggested Dr. MacKay. He didn't know what was 
wrong at the time, * * * 9. * %* * Ehat happened on that night 
[24th]? A. Well, he did ask me for a gun. That is what he 
asked for, Q. Yes, A. But, if he had any intentions of using 
it, he had it himself, Q. Yes. Now, did you have to use restraint 
en him during this Sunday to quiet him down? A. ‘ell, he tried 
to run out of the house several times and I called my brother-in-law 
from across the street to take him back in the house, I did mention 
that at the Peoples Hospital, that he will try to run out of the 
place, and told them to watch him," Upon cross-examination by 
plaintiff's counsel the witness testified that at the time that 
Williem asked for a gum he had the gun himself in his drawer and 
he had the key in his pocket; that on that same day the witness 
left the house and was gone for two hours, during which time William 
was alone in the house; that in the house there was also a rifle 
that William used when he went hunting; that the witness did- not 








a | ~ 
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26 

think much of the statement made by his brother regarding a gun, 
as he figured that if William wanted the gun he could have got 

it himself and could have used it at any time he wanted it; that 
William “had a priest" on the Thursday afternoon before he died; 
that the witness did not notice anything umusual “about his head" 
on December 26; that William was satisfied to be at the hospital, 
that he called them up about seven o'clock and said "we should not 
worry, that he had two nurses, two blonde nurses taking care of 
him," 

Defendant offered in evidence certain photographs of the 
Peoples Hospital. These photographs and certain other evidence show 
that the hospital is a four-story building that faces north on 
Cermak road, or 22d street; that on the third floor is a corridor 
whieh opens out onto a porch that covers the entire east end of 
the building; that the porch is about eight feet in width and has 
a floor of corrugated or rough steel "with notches in it;" that it 
has a fire escape at the south end and an archway window at the north 
end; that the bottom ledge of the archway window is three feet, three 
or four inches, from the floor of the porch; that the concrete block 
which ferms the bottom of the archway window ledge is fourteen inches 
across; that the distance from the bottom of the archway window to 
the sidewalk below is thirty feet, two inches; and that the width 
of the sidewalk directly opposite the archway window, on the 22d 
street or Cermak road side, is sixteen feet, four or five inches, 

A police officer who responded to a call a few minutes 
after seven o'clock in the morning, testified, inter alia, that he 
observed the condition of the sidewalk upon his arrival at the scene 
of the death and found that the sidewalk had been washed off with 
water at a point opposite the window opening and he saw there some 
dark red stains which were not all washed off; that the distance 
between the point where he observed the blood and the wall of the 
building was about fourteen feet; that the body of the deceased 
had been removed from the sidewalk before the witness arrived; that 


wig 6 galbtsget too ebi ye sbam'tacmetate eid %6 domm Antdd 
toy ovad blyoo on my odd bodnew motif tL taitd hotty tt edoas 
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pbeih of eroted moontedts yabetunit eft no “geokiq s bel” metiliw 
“bsod eit duod’s” Lesvemms gutityns cotton don bth eeend hw edd dais 
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as fixed aesst sandy gatbliud yrotestwot # ef Letiqaed add dads 
sobiatos s et tool Stk ot ao tant ydoontd BSS to ,bsot asmre0 
to be dase oxtine Sit exeveo sand dotoq & oda SeO"EMEGS Aokdw 
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avoid odaniane’ tt saad qdottoqg edt to wOOLT od sclo a wot! a0 
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— edd’ 20 xbod oft tant pteet moedctot diode! exw ga bbltud 
Sarid iboviraa aaorithw sit eroted Alswebte ost nowt devon coed Pal 


— 
the janitor of the hospital showed him where he found the body, 
it was “where this water wes lying." 

The superintendent of nurses at the hospital, Jean Adams, 
testified that she resided at the hospital; that she admitted 
Kropacek to the hospital; that his brother Joseph brought him there; 
that William was assigned to room 304 on the third floor, which room 
is in the middle of the hospitals; that she talked with the patient 
at the time of his admission; that she thought he looked just like 
any other patient; that after the patient asked her, "Would it be 
any trouble to get a priest for him," she got a priest for hin 
during the afternoon; that the priest left and later in the evening 
she had a talk with Kropacek in his bedroom and ordered an enema for 
him; that after he had been given the enema he felt better and was 
quite cheerful, but stated that he did not think that he was going 
to sleep that night, and after supper she "ordered a sedative for 
him by doctor's orders, He got two allonal tablets;" that Kropacek 
"had a quiet evening," as far as she knew; that she heard him say 
over the telephone that he liked the nurses and that they were 
hice to him; that she saw him last about 10:30 o'clock at night; 
that she saw him next om the morning of December 27, at which time 
he was dead; that she observed his head was all smashed in, Upon 
eross-examination the witness testified that there was a fire eseape 
on the porch and that the words "Fire Escape" appeared on the door 
leading to the porch; that the brother of the deceased requested 
that he be assigned general duty; that there were two or three 
toilets on the third floor, one directly opposite the patients 
room; that there was one window in the patient's room and she 
thought that it was shut at all times, 

The houseman of the hospital, Peter Krolikowski, testified 
that about seven o'clock Monday morning, December 27, 1937, the wit- 
ness, after hearing “hollering,” 'ran outside and looked on the 
walk and seen the patient lying there;" that at the east end of the 
h@spital on the third floor there is a porch; "that after you step 





=~} 

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28 
out on the porch and turn to your left you walk right over toward 
22d street and come to a ledge or archway;"that the distance from 
the door to the archway was fifteen feet, eight inches; that the 
distance from the porch floor to the bottom of the window ledge is 
three feet, two inches, and the distance across that window ledge is 
one foot, three inches; that "the distance straight down according to 
my measurements was thirty feet, one inch;" that the distance from the 
side of the wall of the hospital to the curb is sixteen feet, five 
inches; that when he saw the body of the deceased it was “laying on 
the walk. It was fourteen feet two inches north of the hospital. It 
was about in the center of the archway;" that when he reached the body 
he saw that the deceased “had on a night gown" that "was pulled all 
the way up to his neck, He was all exposed," and the head was facing 
west; that the witness measured the distance from the body to the curb 
and found it was two feet, two inches; that there was no water on the 
sidewalk when he picked the patient up and themvement was dry; that 
after they brought the body of the patient into the hospital the wit- 
ness washed that part of the sidewalk where he had found the body. 

Defendant contends: "Under the terms of the double indemnity 
clause which provides that the defendant shall not be liable for death 
resulting from ‘self-destruction, whether sane er insane,' the law is 
well established in Illinois that the defendant is not liable if the 
insured died from self-destruction either as the intentional act of a 
sane person or the act of an insane person motivated by some insane 
impulse or totally unconscious of the nature and character of his act. 
Under such a clause the degree of sanity or insanity does not preclude 
the defense of self-destruction." This statement of the law does not 
seem to be disputed by plaintiff. In any event, it correctly states 
the law of this State, 

Defendant strenuously contends that under the facts of the 
case the only reasonable hypothesis is that the insured, whether he 


Was sane or insane, came to his death by self-destruction, and that 
the trial court erred in failing to direct a verdict for defendant 


= | Qe 
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9 

at the close of all the evidence, thile this contention is 
strenuously and ably argued, we are satisfied that it is our duty 
under the law to hold against it, "A motion to instruct the jury 

to find for the defendant is in the nature of a demurrer to the 
evidence, and that rule is that the evidence so demurred to, in its 
aspect most favorable to the plaintiff, together with all reasonable 
inferences arising therefrom, must be taken most strongly in favor 

of the plaintiff. The evidence is not weighed, and all contradictory 
evidence or explanatory circumstances must be rejected. The question 
presented on such motion is whether there is any evidence fairly 
tending to prove the plaintiff's declaration. In reviewing the 
action of the court of which complaint is made we do not weigh the 
evidence, · we can look only at that which is favorable to appellant, 
Yess v, Yess, 255 I11. 414; McCune v,. Reynolds, 288 id. 185; Lloyd 
v. Rush, 273 id. 489." (Hunter v, Troup, 315 Ill. 293, 296, 297. 
Italics ours.) See, also, Mahan ardson, 284 111. App. 493, 
4953 ach Co., 292 Ill. App. 104, 110; 
Wolever v. Curtiss Candy Co., 293 Ill. 586, 597. In the light of 
this rule of law, we are satisfied that it is our duty to hold that 









the trial court did not commit reversible error in refusing to 
instruct the jury to find for defendant at the close of ali the 
evidence, 

Defendant contends that, in any event, the verdict of the 
jury is manifestly against the weight of the evidence and therefore 
the trial court erred in denying defendant's motion for a new trial. 
This contention, in our judgment, is clearly/meri torious one, As 
this case will probably be tried again we refrain from analyzing 
and commenting upon the facets and circumstances in evidence, Uounsel 
for plaintiff, in support of their argument that Kropacek's death 
was accidental and that the verdict of the jury is not menifestly 
against the weight of the evidence, contend, in this court, that 
the predominating factor in producing the insured's death was 
probably the two allonal tablets that the nurse gave Kropacek, 


& 
“e. 


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Mt. g BR. ae we: MSY ae 


‘’ ,leoaqoeud oveg sarua edd tadt. adsides. Lenotts a Bd cers 





1Ga 
Plaintiff argues that "there is no evidence that the insured ever 
took Allonal or any like drug before, and we submit that the purpose 
and the initial effect thereof was to induce sleep, but that under 
the influence of this drug, he not having taken the same before, 
that the further effect of the same would be to impair the normal 
functions of the insured's brain and musele impulses, so that he 
could not concentrate enough to commit suicide which could reason- 
ably have been the predominating factor that the insured's death 
was accidental, and could reasonably have brought about a misstep, 
misadventure or accident resulting in insured's death, as found by 
the jury and sustained by the court." Plaintiff further argues that 
“the brain es, and the muscle impulses of the insured were 
interrupted, and that the insured could have functioned by 'sub-con- 
scious mind,' due to the effects of this drug, both before and 
immediately leading up to the acts and occurrence of his death,” 
The only evidence in respect to the allonal tablets is the testimony 
of the head nurse, Jean Adams, that after Kropacek had told her that 
he did not think he was going to go to sleep that night she, "by 
his doctor's orders," ordered as a sedative for him two allonal 
tablets, Plaintiff's able counsel thought so little of this evidence 
when it was given that he did not cross-examine the witness in refer= 
ence to the allonal tablets, There is not a word of evidence in the 
record that tends to support plaintiff's argument as to the nature 
and effect of these tablets. In plaintiff's brief, counsel, in 
support of the argument that we would have a right to conclude that 
the cause of the death of the insured was due to the taking of the 
allonal tablets, have not hesitated to go outside of the record, If 
the two allonal tablets could have had the effect on the deceased that 
plaintiff now argues, there was a proper way to show that facte 

The judgment of the Municipal court of Chicago is reversed 
and the cause is remanded, 

JUDGMENT REVERSED AND CAUSE REMANDED. 


Friend, P. J., and Sullivan, J., concur, 


& : ~~ 
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et 


40855 


PEOPLE OF THE STATE OF ILLINOIS 
ex rel. Oscar Nelson, as —— 










et al. 
APPEAL FROM CIRCUIT COURT 
OF COOK COUNTY, 





JULIUS F, SIE 
(Intervening Petiti 
Appellee, 


Ve 
CHARLES H. ALBERS, Receiver of 


the Union State Bank of South 
Chicago, (Respondent) 


e} U i. ae € 8 


i et 
wy) 
— 


XK 


ee a as es — — — —— — — — : in 
Ds 


Appellant. 


MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 
A liquidation suit of the Union State Bank of South 

Chicago was pending in the Circuit court of Cook county. An inter- 
vening petition was filed in said suit by Julius F. Smietanka, as 
trustee under three certain trust deeds, which petition asked the 
court to direct Charles H, Albers, receiver of said bank, to pay 
to said petitioner certain moneys claimed to be due the petitioner 
for court costs, expenses, attorneys’ fees and master's fees incurred 
or expended by the petitioner as plaintiff in the foreclosures of the 
three trust deeds, which secure three series of notes, a portion of 
each series being owned or held by said receiver, The receiver filed 
an answer denying that the petitioner was entitled to payment from 
the assets of the bank, After hearing evidence the trial court on 
March 28, 1939, entered an order directing the receiver to pay the 
amounts asked for by the petitioner, The order further provided 
that the receiver, upon the payment of said amounts, “shall be and 
he is subrogated to the rights and privileges of the said Julius F. 
Smietanka, as trustee, plaintiff, acquired by him under the 





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respective decrees entered in said cases, to a first and prior lien 
for such advanees for said legal services, costs, and Master's fees," 
The receiver of the bank appeals from the order, 

The verified intervening petition recites: 

"1. That the Union State Bank of South Chicago, an Illinois 
banking corporation, suspended business on September 18, 1931, and 
because thereof the above entitled suit was started and Frank M. lMcKey 
was duly appointed Receiver of the assets of said bank. 

"2, That said bank negotiated from time to time loans 
secured by mortgages on real estate and the borrowers conveyed their 
equities in the form of a trust deed to Julius F, cmietanka, Trustee, 
the petitioner herein, and Courtney R. Merrill, Successor in Trust; 
that the indebtedness was evidenced by a single note for the amount 
thereof or a series of notes with interest coupons attached; that 
in the course of business such notes were sold to persons desiring 
to make real estate loan investments, 

"3. That among such loans so negotiated by said bank 
were the following: 

"A. John Sinila and Alexandra Sinila, his wife on 

the 27th day of November, 1928, for the sum of 

$17,000.00, evidenced by eight (8) principal promissory 

notes and secured by a trust deed on the property know 

as 9800 Escanaba Avenue, and legally described as: 

[Here follows legal description 

"B, Wellington B. Mitchell and Mary Mitehell, his 

wife, on the 25th day of March, 1925, for the sum 

of $0500.00 evidenced by seven (7) principal promissory 

notes and secured by a.trust deed on the property known 

as 9710 Avenue J and legally described as: 

{Here follows legal description] 

"C. George Starcevich on the 18th day of September, 

1929, for the sum of $4500.00 evidenced by two (2) 

principal promissory notes and secured by a trust 

deed on the property known as 10400 Avenue WN and 

legally described as; 

[Here follows legal description] 

"4, That there came into the possession of the said 
Frank M. lMieKey, as such Receiver, as part of the assets of said defunct 


bank, of the notes described in the foregoing paragraph, the following: 


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"John Sinila $7000.00 
"Wellington B. Mitchell 3000,00 
"George Starcevich 1400 ,00 


"5, Because of the default in the payment of said notes, 
the said Frank li, McKey, Receiver, made a request upon your petitioner, 
as such Trustee so designated in said trust deeds, to file foreclosure 
proceedings in each instance, pursuant to the powers vested in said 
Trustee by the terms of said Trust Indentures, and accordingly petitioner 
hired counsel to proceed in accordance with such direction, and suits 
were started and entitled as follows: 

"tJulius F. Smietanka, Trustee vs. 

John Sinilia, et al., Circuit court 
case numbered B=2390603 
"tJulius F. Smietanka, Trustee vs, 
Wellington B. Mitchell, et al., 
Circuit Court case numbered B-235663; 

"tJulius F, Smietanka, Trustee vs. 
George Starcevich, et al,, Circuit 
Court case numbered B-238341.! 

"6, That said proceedings terminated in a decree and pursuant 
to the provisions thereof on the respective days of sale by the Masters 
in Chancery to whom said causes were referred, there being no cash offers 
at said sales, Julius F, Smietanka bid the amount of the indebtedness 
due and owing to him as such plaintiff Trustee, 

"7. That reports of sale submitted by the Masters in 
Chancery were in each instance approved by the Court and certificates 
of sale were issued by said Masters of the properties so sold to the 
said Julius F, Smietanka, Trustee, 

"8, Petitioner further represents that in order to bring 
this litigation and to pursue it to a conclusion, it became necessary 
for him as such Trustee to hire counsel, to advance costs and obligate 
himself for Master's fees and charges, none of which have been paid 
to him, 

"9, That during the pendency of the receivership proceedings 
a change of Receivers was effected from time to time and lately Charles 
H, Albers is acting as such Receiver of the said Union State Bank of 


South Chicago; that the said Receiver was well-acquainted with the 


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steps being taken in said foreclesuresand from time to time informed 
by this petitioner of progress being made, 

"10. That statements of the services performed and dis- 
bursements made incident to said litigation as aforesaid have been. 
submitted to the said Receiver on several occasions since October 8, 
1937, with no specific objection to either of them, copies of which 
are hereto attached and made a part hereof, 

"11. That said charges, with the exception of those made 
for Trustee's fees, have been approved upon proper presentation to 
the Court, 

‘12, That the petitioner himself did not perform any of 
the legal services, but hired counsel therefor anc is obliged to pay 
the same; that such are fair, reasonable and the ordinary fees 
customarily recognized in Chicago as fair and reasonable for like 
services performed, 

"13. That likewise the charges made for the fees of the 
Trustee are fair and reasonable and the customary charges made for 
services similarly performed as outlined herein and otherwise rendered 
without specifying the same in detail, 

"14. Petitioner further alleges that there is due him as 
such Trustee plaintiff in said cases the following amounts: 


"Smietanka vs. Sinila - $1270 «90 
"Smietanka vs, Mitchell - 54.15 
"“Smietanka vs. Starcevich —- 523.51 


as of the dates mentioned in the attached statements, reference to 
each is hereby made for particulars of the services rendered, 
“Wherefore, petitioner prays judgment that the said Charles 
H. Albers, Receiver of Union State Bank of South Chicago, pay unto the 
petitioner the respective amounts herein set forth; that said Receiver 
be ordered to make answer within a short day to be fixed by the Court, 
and such other and further relief as to the Court may seem meet." 
Attached to the petition were statements that the costs, cash 


advances, attorneys' fees and master's fees expended or incurred by 


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the trustee in each case are as follows: Smietanka, Trustee v, Sinila 





et al., $1,770.90; Smietanka, Trustee v. Mitchel], $854.15; Smietanka, 
Trustee v, Starcevich e o> $523,516 
The verified answer of the respondent states, inter alia: 


"This respondent alleges on information and belief that 

none of his predecessors in office ever employed the firm of 
Smietanka, Conlon and Kaaus to file the foreclosure suits as set out 
in said intervening petition and denies that he, as receiver of the 
Union State Bank of South Chicago, ever employed said firm of 
. Smietanka, Conlon and Knaus to file the said foreclosure suits and 
avers that said Julius F. Smietanka caused proceedings to be instituted 
without advising this respondent of so doing and said respondent neither 
admits nor denies that any notice of the filing of said proceedings 
and any demand for the filing of said proceedings was given or was 
made upon his predecessors in office and calls for strict proof of 
any notice or of any demand. * * * Avers that he at no time authorized 
Julius F, Smietanka, as trustee, to institute the aforesaid foreclosure 
proceedings, that said Julius F. Smietanka instituted said proceedings 
by virtue of the powers granted to said Julius F. Smiectanka in the 
respective Trust Deeds; that under the terms of said Trust Deeds the 
charges of the attorneys for said trustee became a lien on the real 
estate foreclosed and that said firm of Smietanka, Conlon and Knaus, 
under the terms of the respective trust deeds are obligated to look 
to the real estate conveyed by said trust deeds for their security 
for their fees, as attorneys for said trustee," 

Union State Bank of South Chicago was closed in September, 1931, 
by the auditor of public accounts of the State of Illinois, Frank 
M. MeKey was appointed receiver of the bank and as such receiver he 
had in his possession the following: A total of $7000 of mortgage 
notes signed by John Sinila and his wife, which notes were part of 
an issue of $17,000 secured by a trust deed to Julius F. Smietanka, 
as trustee, conveying certain real property. A total of $3,000 of 
mortgage notes signed/Wel1ington B. Mitehell and his wife, which 


—1 — 


——— 


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— 

notes were part of an issue of $6,500 secured by trust deed to Julius 
F, Smietanka, as trustee, conveying certain real property. A total of 
$1,400 of mortgage notes signed by George Starcevich, which notes 

were part of an issue of $4,500 secured by trust deed to Julius F, 
Smietanka, as trustee, conveying certain real property. ir. Smietanka 
Was an organizer of the bank and at the time it went into receivership 
he was an officer and director of it. Defaults were made in the pay= 
ment of some of the notes of the above issues and Smietanka, as trustee, 
caused the three foreclosure suits in question to be commenced, Ryan, 
Condon & Livingston, who were also attorneys for the receiver of the 
bank, filed the said suits for the trustee. During the pendency of 

the foreclosure suits Ryan, Condon & Livingston withdrew as attorneys 
for the trustee and the firm of Smietanka, Conlon & Knaus (of which 
firm Smietanka is senior member) were substituted as attorneys for the 
trustee, Sometime after the suits were filed MeKey resigned as receiver 
of the bank and William L. O'Connell was appointed as successor receiver, 
Thereafter 0'Connell died and Charles He Albers was appointed receiver 
of the bank, and is still acting as such. Smietanka, Conlon and Knaus 
performed practically all of the work in the foreclosure suits. A 
decree of foreclosure and sale was entered in each of the cases, Fore— 
closure sales were held in each case and Smietanka, as trustee, bid for 
the property in each case and it was struck off to him, No cash was 
paid at the sales but the —7 as trustee under the 
terms. of the trust deeds, were applied on the bids, The sales were 
approved and master's certificates of sale were issued to Smietanka, 

as trustee, and he now holds title to each of the properties for the 
benefit of the owners of the notes secured by the trust deeds, In each 
decree of foreclosure and sale the court found that there was due to 
the intervenor, as trustee, certain sums for attorneys’ fees, court 
costs, stenographer's fees, master's fees and commissioner's expenses, 
and that all of the said sums constituted additional indebtedness under 
the terms and provisions of the trust deed foreclosed, After the 


i » —9— 


— 


avkinl o¢ beeh teyat yd bemuoee G0%,40) to oweel as to. t18q. eiow estoa 
‘So Istot A .ydasqory Leet aletieo antyovmoo .eoteuis 2a, suited o Late 


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estou dotdw .dotveotes2 eguoef. yd bongte eetoa oasdo aom to — 


wT akin’ ot besb Semis yd beuwose to ovezet as to s1isq si90W 
sdnateine .tM = .ydueqoug Leet aiataeo gntyevaoo ,eetenis. es ,sinstoine 
qinetevieost ofakt toew Tt emit edt ts bus dasd edd Yo tosineyio oe egw 


“vs ert nk ebsm ovew —0— 
wosentd te slnateint bas covert oveds eid Io eeton ort to emoe to Jaen 


.18Yi .beostenutos od oF moljcesp al etive eieolootel seus edt beayso 


eit to tevicce1 add tot eyentoste cals otew orlw ,tosagaivil.2 mohamed 
to Yonebnoq edd gutwi ,estenit edt rot ettue bise ont boLtt..wdasd 
ayentosss es wottdslw mosegaivil & sobsod yneyil ative cueolooro? edt 


doinw Io) attent 2 nofaod ,alasteime® to mitt odd. bas: cstenat odg,co% 

eds 101 eysrtodts es bedusttadue exew (redmom rolnee at ginstolac alt wa 
tevicost 28 bengieet Yewoll bell? evew ative odd tedts emttomos...soteuis — 
etevisset —E— es betniegqs eaw [fenwod!'O .d meLLl tw. bas aned ect to . 


 gevisoot betriogqs esw enedLA HM e6lisi® bas bekb Lhennod!0 aodisened? 


avail brs mofmod ,sisteteime ova es gaitos Iftte ef due ,aaad edt to 


“A vadive eweolootot oy st alton elt ‘to Lie wilepitoerg bemrotsieq — 
—sT0T ,26es9 odd to dose ab Dorsitne eaw ose bas oqpegisetol to so199b © 
aot bid ,seteutd es ,sinsvolm® bas sesso dose at bLoil — 20lse etseoto — 


daw Hess OF jmitd of V0 douse asw th bos. e280 fess al Waegorg odd 
eit ashe setamtd as paket’ ‘Viacnsonbetdsbat ent. dud aeLsa odd te .bisq 


etew’2else oft l2bidoodd “no behlqqa e19w.~abeob teuat odd lo.ampet 4 
esinsisin’d ot boveal siew else to aetsokiidaso a! resesm bas bevorgg * 


oa 


- erly TOT 2otdroqorq efd Yo dosp.od: eldttoebLod wea sd, —B— mai 


doa HY .eboob debut oxide yd betsoce 2zetom edd to..er9mwo. odd... 
ot ebb asi erorid Jolt hewot duod. ond oleae. bus erseolos102, 20. 


— &¥ ronotbe tamed’ bas) 200? at reteset ganehalamsdganpodese, .Asnes 
aoba ezenboddoprit Lanolt Libba bedwtttengs. amwe Bhee, edt 20 Le, tsc: 
a eld sosti  .bexoloet? beobi tewad est ‘to: anolaivorg brs ene 0% 

, — ——— —EE Ser aanke natant: ne 


{ 
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decrees were entered Smietanka, as trustee, took possession of the 
properties in question, is still in possession of them, and, through 
his agents, is collecting the rents and profits. 

Mr, Smietanka testified that he had conversations with 
Mr, licKkey shortly after the suspension of the bank and that “he said 
that he had a number of the bonds and notes in default and wanted to 
institute foreclosure proceedings and would like me as Trustee to 
co-operate in all of these matters and I agreed to do so. I told him 
that it was to my interest to assist in liquidation of the assets of 
the bank, because I was a director and an organizer of it, and one of 
the officers, * * * Mr, Conlon [attorney for petitioner]: Did you have 
any other conversation with reference as to who was to be the attorney 
for Mr, licKey in the foreclosure proceedings? The Witness: Yes, 
Mr. Conlon: What was that conversation, * * * The Witness (continuing)* 
The substance of it was that I was to go along with the general counsel 
of the Receiver, * * * Ryan, Condon & Livingston were the general counsel 
for the Receiver. I did not have any conversation with Mr. licKey with 
reference to who would advance the court costs and pay the attorneys! 
fees for these particular foreclosures, except that Ryan, Condon & 
Livingston were to be paid on a per diem basis out of the assets of the 
bank. I was never paid by the Receiver of the bank or by anyone else 
for the services rendered in these foreclosure proceedings. * * * The 
conversations were then had with the officers, or with the attorneys, 
Ryan, Condon & Livingston, that I would be indemnified against any 
costs or damages, * * * That was about the beginning of the foreclosure 
proceedings. I was given these assurances by Mr. Burke of the firm of 
Ryan, Condon & Livingston, After the work progressed to a certain 
point, tir. Burke came to see me and said that they could not go along 
with these foreclosures, and that I, as Trustee was in a more favorable 
position to bring them to a conclusion. After the foreclosures were 
completed, I as Trustee took possession of these properties, and I am 
still in possession and through agents, collecting the rents and profits, 
I then went down to see Mr, Keenan [deputy receiver] and had a talk with 



































oq foot ,sotenis es _sitatolms betesae etew eeotoeb 
tire ak ysotteempsat a2old1eqozg 
gnogscetd 


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: wedtiot bis atmor ond qittoelloo et ,.2 

ddtw enotisaxevaco bad ed sadd hoPtkveod aamatobme”. al ~ 

bise od” Jedd bas Aned sit to noleneqene off tests <istode Yotol . mi 

ot bodasw bus divsteb at eeton bus ebaod ody Yo todmm s bed ed dant 

od codenat ea Sm stl binow bus egatbeooong eusmoloete? odwd tient 

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ctf Hiftw yitols oy of new T'Yads exw TE to sonevedve ox 

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sili 46 edeces Odd 20 tuo wlesd mob 194 ¢ to Biaq ed of Stew MogegaevE 

eete enoyis yd 10 waned att 16 teviosot edt yd Disc aevon-eaw I s2istsd 

‘edt * # # .aystthedoose ompolootot enond ak porebsiet eoskvted ‘ens 101 

cayentodss eds do tw 40 (ewodttro ont fytw bed meds Stow antoksse1evsi0o 

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46 mikt eds Yo exturd i yd esonsiites eserd noviy daw IT «.egakbeot 

ntatisd 2 of Beetexgorq Axow “els test yttodagnivil 2 mobso9 « 
“gnots og som Bivod void Tadd bisa iin *aebtmes ened amie) -am% $e. 

- efddtovet stom £ at esw sedan tn (Ides baa: yeoumeo sooner ones alt 

oid edt” sro kewESat0o” a og mddiganedod aoto aso 

ots Yo noLeeeteod Sood Soséurt'es I ybototqmo: 

(ednead iiguontld: bas noleroazog ah 

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djiw yetol . tit dtfw mofysetevi0s 


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"grew eommeotostot 
a 3 bas ,eettreqotd 92 
ad bieig bas etaet ett sitteotfoo 

djty afss s ber bas [revtsost Wuqeb 


3 

him about the payment of these accounts - Master's fees, costs advanced, 
and attorney's fees. I had prepared statements of accounts in cach 
case and sent them to the Receiver, Six or seven months after the 
statements were sent, J had a conversation with Mr. Keenan, and he 
said he would let me know later. Two or three months later, I pressed 
for a settlement of the account. Mr. Keenan then told me that they 
were willing to pay the accounts provided that we were able to - = 

Mr. Moran [attorney for appellant]: Object. That is a discussion in 
the nature of settlement. The Court: I will reserve ruling at this 
time, He may answer to the reservation, The Witness (continuing): 

Wir, Keenan suggested that he did not think we had obtained a good 
title, and I as Trustee did not have authority to convey a good title 
by sale, We discussed the propriety of my action and the result of 
our conversation was that if we conformed with their ideas regarding 
title that they would be willing to pay the account. Mr, Moran: I ask 
that that be stricken, The Court: It may stand, subject to your motion 
to strike, The Witness: The language of the conversation was this, ‘If 
you will show us that the Title and Trust Company will guarantee the 
title in you, we will pay this account, or recommend its payment.' I 
then took a typical case that we handled in the office, and applied 
for guaranty policy and I told Mr, Keenan that the Title and Trust 
Company, after it had made its examination was ready to guarantee the 
title providing we brought in a deed of conveyance to the purchaser, 

It developed in a subsequent conversation that the three cases in this 
intervening petition were registered in the office of the Registrar 

of Titles, and I advised Mr, Keenan that the authorities in that office 
would not pass on the title unless I as Trustee was ready to make 
conveyance to some prospective purchaser, In subsequent conversations, 
Mr, Keenan insisted that he would do nothing about the account unless 

I proceeded to organize the bondholders into a trust along the lines 

he had in mind, I told him that I was sure that the title I hold was 
one that I can deliver and will be guaranteed by the Title and [rust 
Company. No objections have ever been made to the title I nando 


ebeoisvbs eseoo ,e09%t a'iosesM - sdmvooos seeds to Jmenysq odd Suods mid 
dose at atmvovcs ta edusmegste beteqesq bal L «eect e'yoniosts bis 

edt iz9tts estderom nevee to KLE ,teviooceh edt o¢ mot dned-brts Seso 

ef bas ,nenseX .t dtiw noliserevaoy a har 1 gto sudw etnometste 
beezetq I ,tetsl eddaom cous x0 owl .1edel wool om tol biivow ef bise™ 
Yeuds sect om blot nord asaesk .eM ,Javoocos oft to tnomelttse™s YOY 

~~ of elds o1sw ow tadt bebiverq efasoses ont yaq od RAtLTiWw oxew' 

at moleevoald s et tedT .tootd0 :[daelieqgs sot Yontosss) mete yeu” 
sidt te gation evieset Iitw I sd«nod endl stmomelsier to satan edt’ 
‘i(geiisnivaos) geeatiw off ,nobtevieget oft of towens Ys oH omit 
Seog & beniside bed ow untdt Jom BLD of tacit bedeoygha Handed ait 

eltis boog s ysvioo of Ytlroddus eved tom HLH ostauiT es T bas (eltiv” 
1o Fuser oi} dna sobion ws To Ylolxgowt exo beeewoe Rh on Shi ve 
gatbregex asebt sheds d3tw bemrotmes ew Tt tadd sew abtyse wites a0 
das I tast0M .aM .Jnyooos aslt yeq of smtiliw et binow year wR 
nottou Woy of Jootdwe ybaste you Ji ituwod off scoldttteved vant Fans? 
I' ,etdd aaw notisareyaes suit to eyswgael en? rezent hi off” - .Sitave os 
oid eodaorsny Lliw yasqmod samT bas oft2t aft sade ew word IEW Ry” 

I ',Jnomysq att busmmecet ro .iaoces ats Yeq LLtW ow’ soy ‘mt Ohsiy 
betiqas bas ,eotTio oft nt helmed ow Sait odpe Leorqyt s M6od ‘aondd 
geure bas off2T ond todd nanook xk blot Tins Yolo ytdeteyy TY” 

exit eotas sey od ybset asw sotdanimexe att obit bast FE tees ynstMOD 
-Teeadioun ot oF eonayevnos to beeb s ak ddguoid ow sikh ivory OItts" ” 
eked mi cease could edd tedd mottnarovmos saeupecda ent psqoteves ST’ 
taiseigod odd to eoltio edd at bousdeiget exew mottiteq"eHitevissat 
sotiio dadt mi eotsizodius elt tadd assesk su Docivbs I'bad .ebitHt 28°“ 
oxlam of vbser asw estas? as I ecolnmeitis odd Mo esq Font Biwow 
<enolssetevaco Inevpeadve of ,1eesdowg evitooqaorq emod ot 951 
eeolims Jayooos sid gods gatisem ob binow ‘ext. — eaten 
aonil ont goole teust s otmt erobLoshaod ent exinsytd of bYbssooty T~” 
2sw box I eftid od} Jas, cue ee, I: dad mbsf) Lod · *  Bar ti at ware” 
taut bus ocart ont Yd besinerssy ed Litw bus tovileb\nmso I Ysdy" an we 

| hoxtspos I eLttt exit of obsm mood tévecowad — * ets f 






9 
by my bid at the foreclosure sale, except by Ur. Keenan and lir. 
Schmidt [Keenan's assistant], and their objection was that I was 

not willing to call in a lot of contending bondholders and seek 

to do something which already was accomplished, namely, a good 

title set in myself as Trustee. I offered to turn over possession 
of the building involved to them so that they might collect the 
rents and apply them on account of the money that they had advanced 
and would advance, And in each of these cases involved in this 
petition demand was made upon me, or request, by Mr. McKey, to start 
foreclosure, Mr, Moran: At this time I renew my motion to strike 
Mr. Smietanka's testimony on the ground that all conversations 
related by Mr, Smietanka were in the nature of a compromise and were 
held for the purpose of settling this matter, As a second ground, 
Mr, Smietanka's testimony should be stricken for the reason that it 
goes beyond the scope of the petition, The Court: I now rule that 
that evidence is competent, and it may stand." 

Harvey J. Keenan, called as a witness on behalf of the 
respondent, testified that he was a deputy receiver of the bank, 
appointed in 1934; that he was familiar with the records of the bank 
and that they do not indicate that Smietanka, Conlon & Knaus were 
ever appointed attorneys to act for Mr, O'Connell, receiver; that he 
(Keenan) never authorized that law firm to perform any services on 
behalf of the receiver of the bank; that he never employed that firm 
to represent the receiver in the three cases in question; that he 
never agreed, on behalf of the receiver of the bank, to pay lir. 
Smietanka any fees for services performed in the said suits. The 
witness further testified that the three foreclosure suits were first 
brought to his attention in December, 1936. The witness was further 
examined, as followss "Mr, Conlon: Mr, Keenan, as Deputy Receiver, 
after the firm of Smietanka, Conlon & Knaus substituted, did you 
have any conversation with Mr, Smietanka with reference to the fees 


and matters claimed in this petition? Mr. Moran: I object to that. 
The Court: Objection overruled, The Witness: Yes, sir. Mr. Conlon: 





C 


— 

std Ons osneel .t yd tqeoxe ,eles simaoloeto? only te bid a —* * 
Ban 1 todd eaw nodtootdo atedt bag ,ltustelees 2 ‘aeaeet] tbLtai tbtaut ioe 7 

dese bas eisblodbnod gxibaetaco to dof as at Ilse ot — ton y 

hoog s ,¥iemsn ,bordeliqmooos egw ybserls doldw gatddonoe ob ot * 

moizapesog wevo aint ot beustto I oo0841 28 AMeeva at 708, oltis ie 
edt toeLloo sdk Yous tadd oe wodt of boviovat gakbitud odd to 

beonsvbs bed yorld Jadd yenom edt Yo Jamooos mo moddd viaas bas, ednon 


Liv erow 
edd of beviovat eeeso egeds to doso mt baa -oonsvbs bisow bas ven 


ftnte 


droge ot , yoo «ti yd ,dzeupet To ,om mogy obam ecw braweb ——— 
salsse of soijon ya wonot I omtd ald’ $4 taeroll 2 — 
aHotisexevace ifs tard deuuong odd ao Ysomttest a" alastotm ia 
oven shen eetuoigaes s to emisa edd ai etow sinsdetn’ . vi yd bed sis vy’ if 
cbavory bnovse 5 24 .tottem eldt gailijea to sxoqung as 02 Bho 
$2 desis mocsot agli s0% asilotite ed bivode ynombtect 2'sunstetm «aM 
tact eLyx won I idawod oct .motsiveg edd to eqose edd ba ye OR ey 
"Dante Yau 3 bas .iupdequos 2k goaobtye —* Aha 
_ et Yo Laced go enentiw.s ea bellee «mancel .vevtaH 
- gised edt to sevylooet yvugeb s saw od ted? Aorthine? & Pg 9 gi 
gad: $68 20 RORPOOT. OAL AT EF NOLERRT AG OE tO) EOL wt hoteiy 
etew avant % aoſaod ,sitajetmd todd eteotbat ton ob ved tedt . 
od Seals. tantooosaliganoD!0 9M, — see... 
go secivica Yas mtoireg ot mitt wal Jedd beatrodius revea Senne 
with dedi. boyelaae teyon ad tact. yited esi}, to reytesest aa, 20 nod | 
Ad, fads, OL AOD. BE BONDS OOS, ————— —* 4 
xeg oF ginsd ody Yo seyteoes ery to Aaded ao be a | 
eat ,atine bise edt mo) bemrotreg as eotvzsa met, soet, ya, sinadelae 4 
ceili eqew adiue, exvagioern} seids edt Jatt betitiees reddit at Dg — | 
_‘terdwh asw eaentiw edt .0€CL «redmeged sk ———— 
etovisces yinged es ynsmoed ti imolmod , TM"  sawellot aa “ake 
PAM AEP og DOSNT EE RGU, SURO A A LEOD. a MRNT ME, ROE — afd soda J 
— * vera 
-$eiit of tootde I. :matol-«tM. Smelt seg atid a. vert 








Zatz 









-10— 
Isn't it a fact that in that conversation you stated to Mr. Smictanka 
that you had no objection to advancing these sums for the fees and 
costs, provided the liquidation trusts were set up in a manner that 
was acceptable to you? Mr. Moran: I object to that, These conver~ 
sations had between Mr, Smietanka and Mr. Keenan were had for the 
purpose of compromising this matter, Mr, Keenan has no power himself 
to pass on whether the Receiver of the Union State Bank of South 
Chicago will pay the fees requested, The power to pass on whether 
they shall be paid lies in the Auditor of Public Accounts of the State 
of Illinois, The Court: I will reserve ruling on that question. He 
may answer subject to the reservation, The Witness: Yes, sir." 
The witness further testified: "The Receiver of the Union State Bank 
of South Chicago is not the holder of the total indebtedness oute 
standing in the Sinila issue, He owns $6,100 out of a total issue of 
$16,000. In the Mitchell issue, the total indebtedness is $6,500, 
and the Receiver of the Union State Bank holds the sum of $3,000. In 
the Starcevich issue the total indebtedness is $4,100, and the 
Receiver of the Union State Bank holds $1,400," 

It was stipulated between the parties that "Charles H. Albers, 
as Receiver of the Union State Bank of South Chicago, or his prede- 
cessor in office made certain expenditures or advances for court 


costs, stenographer fees, subpoenas, and photostatic copies, in the 


cases of Smietanka v, Mitchell, etanka vV. Starcevich, and Smietanka 
vs, Sinila," 


No evidence was introduced to show that Mr, Burke, connected 
with the firm of Ryan, Condon & Livingston, had any authority to bind 
the receiver of the bank to indemnify the petitioner against any 
costs or damages he might sustain in the foreclosure proceedings, 

The rights and liabilities of a trustee under a trust deed are deter- 
mined by the instrument creating the trust. The trust deeds foreclosed 
were not introduced, In the instant case there can be no inference 
indulged in that there was any provision in the trust deeds that would 
charge a holder of one of the notes secured by the trust deed with 


a) oe 


siagdola. au os bedste voy motigenevacs dads at datis tost a SE Snel 
bas eeet odd 10%, same saedd gatonsvba of moktostdo en bad poy Sadt 
sesid t9maism a at qu tee guew adveutd molteabiwpil ed? bebiverq ,eteoo 
-teyaes eased? .tsdd of doetdo I saet0ol .cM Twoy of eLdstqesos. aaw 
ont 10% bal oxew canes sai bas silastetaet . 1 asewsed bad °eadkise 
tLoemt towoq om ead memood .1M .vedtom ekdt gate tmorquds “to e2eq¢ing 
Agus 10 Ansd etes@ gota od to wovicssi ed tedSoctw to esd oF 
todtesdy co eaag of wewoq eT .beseenpsr eset odd ysq ILbw ‘ogsditdd 
etst® edt to edasooos offdii Yo sottbua edd mt voll bheq od Lidde Yeds 
eH .coldeowp Jaid no gutiv« evieeot Iitw I stwod ef? ,eomf£it to 
".aka qaok iezendttv eff .goltaviezet edd of Jootdue “iewend Yam 
Wisk ease aoial edd lo reviveoofl sfI” shelrtiveed tordswt eeontiw edT 
suo eaonkeidebal Ltadod esi to robLod edd. Jom at ogastdd iifwee Yo 
to eveei Isjod » to dwo 001,08 anwo oH .owaet skinté edd ck gacbirtade 
—— 0% al caonbetdobat Latot sift .oueat (ietedtM eis mE“ 0OOOLe 
GI .000,€@ to me ot, ebfod dansd osade aolLgU exit to 18visoof ond bas 
edt Sas ,W0L,d ef exenboddsbat Lato? edd ogast Hotveotst2 edt 
9, OOm Te — AEE TY I AE EE 

eatodls 6°. 4 
~ebeig ald to ,ogeoldd sidwo% to ainsd ott nota ox: 6' aevhooem as 
tiwoo 10% eeofsvka TO eomtibnegxe aistic9 ebem soki'to mt toeteo 
edd at ,eetqos oltsteovorg bas yesnsogdne yooel tedgstgonese” ‘yas2oo 


— ———— — 


i ‘ 


besosaneo ,siwe , tM stadt wode of beopbownl aew ssnebive —e 20: ar 
bakd ot ylsodéue Yas bad ,sotagatyld 4 nobaed: ay To st ed Ad bn 


Ys Janisga iemotitieg edt YLiamebat of Acad edt to" — 


a⸗aagtboo soꝝg emeolooro? odd ak miajeme ddgiar od aedamah Aes 
~zeteb e1s beeb ganz 2 tsbay estewis os to ⸗ 







biugw deda ebseb Jerid ons ahaa tend Sac 
fit be boob dasxt edt yd boꝝudos eoton edb eae 0 






wit. 
all the costs and expenses of a foreclosure suit, 

Appellant strenuously contends that the trustee has a lien 
on each of the foreclosed properties for the costs and expenses of 
the suits and that he must look to said property for the payment 
of his liens; that the order entered in the instant case is highly 
inequitable and without justification under the law. We agree with 
this contention, The trustee is an able lawyer and has had years 
of experience in the practice of his profession. He was an organizer, 
officer and director of the bank and was familiar with the rule that 
he who deals with a receiver of a bank does so with knowledge of the 
fact that the receiver is limited in the scope of his authority, Under 
the facts it would be idle to argue that the trustee made a binding 
contract with the receiver to be paid for the costs and expenses sus- 
tained in the foreclosure proceedings, Mr. Smietanka testified that 
he never talked with the receiver in reference to who would pay the 
court costs and the attorneys' fees for the foreclosure proceedings, 
Certainly no binding contract was shown by the statement of the trustee 
that Mr. Burke, connected with the firm of Ryan, Condon & Livingston, 
told him that he, the trustee, would be indemnified against any costs 
or damages in the proceedings, Mr, Smietanka testified that he told 
the receiver "that it was to my interest to assist in liquidation of 
the assets of the bank, because I was a director and an organizer 
of it, and one of the officers." The costs, attorneys’ fees and 
expenses allowed a trustee in a foreclosure proceeding decree are 
paid to the trustee from the income or proceeds of the sale of the 
properties involved in the foreclosure proceedings if sufficient money 
is available to pay the same, The trustee in the instant case followed 
the usual procedure and the decrees in the foreclosure proceedings 
fully protected his rights, As trustee he is now in possession of 
the properties and collecting the rents and profits. There was no 
showing made that the properties will not pay the trustee what is 


due him under the decrees, The bank receiver is interested only in 
a part of the notes foreclosed in each proceeding,. Yet, under the. 


~tiwe eweoflostot s to eeeaeqxe Bus eteoo ved dis 

welt s ead ested oft sarlt abmetnon yLavomette tneIieyqa ~~ 

to weeneqxs bas steoo edt Tol eeldrsqotg beaoLoetot edt to Mowe no 
 Fromesq odd sot ysteqotg bise of WOOL tenm ef salt ‘bas Uste oit¥” 

xitgid ef eeso Suateml ont at beretae tebro sft tel} Yenotr BEN Yo 

atin cetgs of .wal ond robry nottsoltitert sworltiw bad ‘eldadstipenk 

eresy Darl ear Bus woywel efds as ef setantt oft Jnotdnednos eh?’ 
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efit ‘to oles oft to ebsecorg to ‘smosat Ott mot esdenrt odd ot blieq 
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bewollot sess duagent ont af eotenty od? Jentse off Ysq oF oTdefteve EF 
aptttbeesory emeoLoorel only mt gooxv0d ent bus’ otubeseiy Later wi” 

~ to notezezzoq mt wos at of cotertt eh \\etitgis eit befdesory YL 
om wew evel .e¢iiozg bs edmet odf gntfvelfoo ‘bus eettreqorg She 

@k ter cotenst os Yeq ton Lit eet sqoty salhimatemiannall ‘ 

| ak Yino bédaovesai et tevieoes dnsd od?  ecetseb edd tobi 
edd ‘vebas .JeY .,yatheooorg Hose af beeoLoor0t aid om 48 é 








2 


order entered in this case, the bank receiver is ordered to pay 
the total attorneys!’ fees anid expenses of the trustee out of the 
assets of the bank that belong to the depositors and creditors of 
the bank, the receiver to be subrogated to the rights and privileges 
of the trustee under the foreclosure decrees, The order in this 
case allows the trustee $1,200 for attorneys' fees in the Sinila 
foreclosure, $450 for attorneys! fees in the Mitchell foreclosure, 
and $300 for attorneys' fees in the Starcevich foreclosure, Wo 
good reason has been shown why the trustee should not abide by the 
usual procedure, As we read the record the petition amounted to an 
effort by the trustee to accelerate the payment of his attorneys? 
fees and the expenses of the trustee, the receiver to advance to 
the trustee the amounts in question and take chances of possible 
reimbursement in the future, The receiver was fully justified in 
refusing to pay the claim of the petitioner, 

The order of the Circuit court of Cook county entered March 
28, 1939, is reversed, 

ORDER ENTERED MARCH 28, 1939, REVERSED, 


Friend, P. J., and Sullivan, J., concur, 





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40992 


JOSEPH E, MERRION, | ae 
(Plaintiff and Coumter—Defenfant } 







Ve 


JOSEPH ALTMAN et atz~ 
(Defendants and — — 


Pals Ee * 
Appellants. i 0 7 Le A. 3 38 2 


MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 





Joseph E, Merrion, appellee, obtained a judgment by con= 
fession against Joseph Altman and Adella C. Altman, his wife, 
appellants, for $607.50 upon a judgment note for $500 signed by 
appellants and payable to appellee, The amount of the judgment 
included interest and attorney's fees, Appellants filed a verified 
petition praying that the judgment be vacated and set aside, that 
they be given leave to offer their defense to the claim, and that 
they be allowed to file a counterclaim. An order was entered that 
the judgment be opened, that defendant be allowed to make defense 
to the claim, that the judgment stand as security, and that defend— 
ant be given leave to file a counterclaim, plaintiff to answer the 
same, After a trial by the court final judgment was entered con- 
firming the judgment entered by confession, Defendants and 
counterclaimants have appealed, 

Appellants' verified amended defense sets up: 

"1. That they are not indebted to plaintiff upon the note 
upon which judgment was entered herein, 

"2. That said judgment is upon a note executed by them for 
$500 and delivered to plaintiff under the circumstances hereinafter 
set forth, 

"3. That during the months of April, May and June, 1937, 
plaintiff was a real estate broker and engaged in business as such 
in the City of Chicago, Illinois, and that as such real estate 
broker he communicated with defendants and informed them that if 





2 


.TAUOO GUT YO WOTHIGO SUT GHMIVIGKG WAIMADE BOLTaUC — 

“09 \d Jasmgbhyt s beatatdo ,celleqqs ,maolri1ell oa iqozot 
“Stiw eld pasmdlA .0 sLfebA bas mem lA dqoeol tentags soleest 
yd bengte 00% 10% oto Jnomabut ws moqw O2.YO? 10% eda lioggs 
Snoughnt ei} Yo inuoms anf? ,seiteqgs oF oidsysq bas etnalfoags 
befttqev s beltt etuslleqqa best atyontotts ‘bats teorotnt bobulont 
tedt ,ebtes doe bas betsosv od dnemybut edd Sadd aatyerg gots b¥eq. 
gadt bas yutsio oft ot oaneteb xhecit toto og oval ovis “ed youl 
tact heredne asw teh10 4 ematelowstaseo s efit ot ‘bewolla ‘od ‘yadd 
eaneteb exis of hewolls ed dasbastod tacit densgo od Stomgbsit exis 
~baeteb tedt bus .yitiusoee as baate Joome but ost sastt eaters end - ot 


edd tewans of Ttitntela ,wksLovesimoo s eLft of evael mevig ed tas 


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bus edasbueted .mokees'taco yd 5 Jromg but add* satmrit 
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dese as eaonteud at begsgne bas saedetd etetao [set 8 eaw Tiltatelq 
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Li decid wesld Demotnt bas etasbaeteb dtte hot as dcuuumos ext sexton = 








=e 

they were interested in purchasing the real estate located at 
1415-1419 East 67th Street, Chicago, Illinois, that he could obtain 
the same from the owner thereof at a very low price, and that if 
they would authorize him to do so, he would obtain the very best 
price possible at which they could purchase said property from the 
said owner; that defendants, relying upon plaintiff to obtain for 
them the said real estate at the very lowest price, authorized and 
directed plaintiff to negotiate for the purchase of said property by 
them, at the lowest net price to defendants; that it tien and there 
became the duty of plaintiff to get the said real estate for defend= 
ants at the lowest price at which it could be obtained, 

"4. That after defendants authorized and directed plaintiff 
to negotiate for the purchase of said real estate, as aforesaid, 
plaintiff informed defendants that the very best price for which 
the said real estate could be obtained was $11,500, and defendants 
relying upon plaintiff and the representations made by him, and 
believing the said representations to be true, then and there agreed 
to purchase the said real estate and to pay $11,500 therefor, 

"5, That in order to pay said purchase price, defendants 
procured a mortgage loan in the sum of $6,000, the proceeds of which 
were applied to the payment of said purchase price, and defendants 
paid the further sum of $5,000 in cash and delivered to plaintiff 
the note sued upon herein in payment of the balance of $500, 

"6, That the said representations made by plaintiff were 
false and untrue, and plaintiff fraudulently and with intent to make 
a secret profit at the expense of defendants, informed defendants 
that the best price for which said real estate could be obtained was 
$11,500, whereas plaintiff then and there knew that the said real 
estate could be obtained for much less than the sum of $11,500, and 
at the cost as hereinafter set forth, 

"7. That by reason of the false representations and the 
fraudulent conduct of plaintiff in that behalf, defendants did not 
know that the said real estate could be obtained for less * 


ts betsool stetdee Leer edt gatesdouwg alt beteotstal erew yeds 
nitetde biyoo en told getonklll ,ogeotdd ,teeise ASYO Saad CLAL-GLeL 
ti tedd bas ,eokvq wol yxev s ds Yootedd temwo edd mort emsg ost 
deed Vasv ot mkatdo blvow of .02 ob of mid o&staondius bibow yens 
emt mort ysieqorq bise seadowg Sivoo yeds dotdw ts eldtasoq solig 
Tot mkatdo o¢ riitatele mogu gatyie1t ,etaabaeteb gasit arene Baa, 
bag boxtuodtus .soiiy teowol ytov edd ds etateo L201 “bisa edd medi 
yd ytueqoig bise to seadowgq edt tot osaktogen of Titvakslq betoouth 
eteds bis memt Jt todd yadmshaoteh of solig ton teqwol edd ts mods 
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sighiw ot coduq decd yroy odd stadt adasbasted bomrotnd Tiusatelg 
etnebroteh bas ,00R,IL) asw beatadde ed biuoo etetae Leet biae_ont 
bas ytd yd ebsm anolistasestqgea edd bas Tittatsi¢, moqu aatkyles 
boots esedd bas aedt ,owst ed of enolisdaceeiqger blea edt, gatvetied 
aI@tetods 00, LL¢ yeq oc bas. stateo [set bise ont oesioig at 
adasbaoteb ,soliq casdowy bles ysq of usbs0 at dad? 68%) ov sue 
slots to ehoeoorg eft .000,0¢ to me edd ak asol gags 10m,s bety9081g 
etusbaetob bas ,eotiq egadome bise to taemyeq edt of boblqga tow 
Tiitalst{q ot betevileb bas deso at Q00.%@ lo -mue sedsupt edd bleg 

— to eouslad off lo tnsansq af mitered: sogubewa,eton edt 

etew Tilintelq yd obsm enotistaszo1ges bisevedt tadf 40% 

exem ot tnotat détw bas yisnelubustt Yhidatelq bus .,outtav bas,calet 
-atasbao'teb boamolmt ,adnabseteb to saneqne odd. ds thIoqgetsee 2 
aew hontsido ed blsoo etedeo {ser bise doidw rot soliqyteed edd tant 

feet bise edd todd wer! event bus godt Titintelq esotodyyQQQ, Lis ; 

bas anions 10, ue afd mort ego doum sgt beatstdo.ed blyoo etatao 

— doz ted tantotoer es d200 odd 38 

edd bas enottsinesosges eels? odd ao mogson_yd:tadl. o> ony et 

Jou bib esashotoh «Maced tad ak Ndltatala Yo toubage.taelubyesd 

cod? eae 10% bedtstdo ed bivoo etates Leet bisa ont tant york 











————— sO 


-3- 

$11,500 and that plaintiff was actually paying less than $11,500 

to obtain the said real estate for defendants; that several months 
after the said deal was consummated and defendants purchased the 
said property, they discovered the facts relative to the cost of 
obtaining said real estate, and informed plaintiff that they would 
not pay the note for $500 held by him, being the note sued upon 
herein, and demanded that he account to them for the amount which 
he obtained from defendants by reason of the misrepresentations and 
fraud practiced upon them as hereinbefore set forth. 

"8, That plaintiff had in fact obtained the said real estate 
for $9,000 and plaintiff received for himself, the sum of $2,000 in 
addition to the note sued upon herein in the sum of $500, being the 
difference between the cost price of $11,500 represented to and paid 
by defendants, and the said sum of $9,000 paid for said real estate. 

"9, That plaintiff is entitled to credits in the total sum 
of $820.49 for taxes paid and allowed, title charges, and other 
expenses paid by him in obtaining the said real estate for defendants 
and consummating the purchase thereof by defendants; that after 
erediting the plaintiff with the said sum of $820.49, plaintiff is 
indebted to defendants in the balance of $1,679.51 for which defend- 
ants demand a counter-claim against plaintiff; that $500 of the said 
sum of $1,679.51 is represented by the note sued upon herein in the 
sum of $500; that by reason of the fraudulent conduct of plaintiff 
in connection with the said deal, plaintiff has forfeited and is not 
entitled to any credits as real estate commissions or otherwise, in 
connection with the purchase of said real estate, 

"10. That the said note sued upon herein was fraudulently 
obtained by plaintiff from defendants and is void and without consid- 
eration, and defendants are not indebted to plaintiff upon said 
note or in any/ sum whatsoever," 

Appellants! amended counterclaim sets up that "defendants 
claim that plaintiff is indebted to them in the sum of $1,179.51 


: oxew TD 
(OCR eLLG aot evel aatysq yilewtos enw tittaiely stadt bag OOR Le 


antnom [arevea Jady jatushaeteb 103 etatao [set biez edd alatdo of, 
oft boasdoig etushasteh bus bedsumssnoo eaw {seb bise ody rests 
to gaos odd of ovivelet efost ont bowevooatd veda X⁊ogoxq bles. 
bivow yedd tadd VitIntalg bomrotas bus yetatae Lae, koe antataddo, 
stogs beve eton odd gated «ald vd bled 008% t9% stom edt ysq tom 
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bas enolisimezoeigetata ols lo mosset Yd adasbnetebh moti beatstdo, ed, 
Ao ron Jee etolednieted as meds moqy beottosrg byatt, 
etaseo Inet bisa et bontatdo tost, at bad Vt⸗ataltq FeAT » BM 6. ocun 
at 000,S% 20, me on) .ꝛleaata yo? Deytecon Naaato ta bus ooo.es 102 
edd gated .00 To awe odd mt ntoved aoau beum eto exif of aota abbe 
bieq bus of hevnezerqe ode. lia 20 eotsa acos ad}, nognded, eomese2tb, 
seset29 [eet bise 102 bisq 000.0% to awe bkee edd bas ,atapbasteb yd, 
aue Istod oni at ettbose of beLjtine. et I1.iatelg tah 4" or cog 
_ Hedldo haw ysegrecio siti) gbowolls. bus bisq zexet 202.0%, 0868.20, 
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totte sant i2dnshasteb yd tossed? seadousg eit gattsamenoo bas — 
ef Tilvatslg Qh 0888 To mie bisa od dtiw Yiivaislg, edt gatttber. 
~bueteb otdw rot Lc, @\o.l® to esagisd et at einsbasteh of betdobut. 
biee edd Yo 00S Jadd. {2tbatelg tentess melonresauog « husmeb, egag. 
erit ak atsaog soqs beye ston edt yd botmecesqes at Le.RVo.l? to aum 
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gs etstee Lsot bise to cagdoing odd di iw mottoennos 
vitae tubuer?, asw sloted moqy bewe eton biee edt dant ..0" 9. 19) 
~bleaoo Jaodtte bas btov ei bag etasbacteb mort iidatslg yd dealstdo . 
biee mogs Yitintel ot betdebat som ets AREA he. mols ate , 
7” · teveget enw. “se ys Akzo etom 
edasbns teh" tas « qu ston, malate, bobnoms. tedasllegg a · 02) — 
I. Cale to mre exis Al sles? 9% beddebat et caisesimaiint. 4 









4 

for monies fraudwlently obtained by plaintiff from defendants under 
the following circumstances:" Then follow a number of paragraphs 
which are the same as paragraphs three to nine, inclusive, of 
appellants’ amended defense, The “defendants pray judgment against 
plaintiff for $1,179.51 and costs." Appellee's verified reply to 
the counterclaim states, inter alia, that "plaintiff states the fact 
to be at no time has plaintiff ever asserted to defendants or to ay 
of defendants' agents that plaintiff or plaintiff's agents might, 
could or would obtain the property in question or any other property 
placed in plaintiff's hands for sale at the 'best possible price’ or 
‘the lowest possible price' or used any equivalent expression with 
reference to so benefiting a buyer as against the interest of plain- 
tiff's principal, the seller; * * * that defendants signed and 
delivered the note sued upon and upon which judgment was heretofore 
rendered as part of the purchase price of a certain real estate gale 
and transfer, in which plaintiff represented the seller and that said 
note was retained by plaintiff as part of plaintiff's real estate 
brokerage fee and commission to which he was and is entitled." 

Appellants contend that appellee was their agent in the pur= 
chase of the real estate and that he was guilty of a breach of his duty 
to them; that the judgment is contrary to the evidence, and that the 
court erred in confirming the judgment by confession and in failing 
to give judgment for appellants upon their counterclaim. 

Augusta Walsh, who owned the real estate in question, had 
incumbered it with a trust deed to secure her note for $10,000. The 
holder of the note had a judgment by confession entered thereon and 
also instituted foreclosure proceedings. Mrs. Walsh wrote the follow= 
ing letter to her attorney, De Haan: 


"Chicago, Illinois 
February 13, 1937 


"Messrs. Frisch & De Haan 


134 N. LaSalle Street 
Chicago, Illinois 


“Attention Mr, De Haan 


"In re: Property located at 1415-17—19 
E, 67th Street 





* Our 
“oe 


— 
seban adnsbos'teh mort Ttlintelq yd Dbemiessdo yiiaeLshwsr? eo tnom.sot 
asggitgstaq to today a wolfot aedT ":eeeneseqmotte gatwollo? verit 
to ,ovievloat ,omia of goxdd adigatysisg es omen oft ois doldw 
ganisss dnomgou, ¥stq etasbaetch” off .,eaneted bebroms , adnslleqgs 
ot yiget beitisev a'osliieggA "“,ataoo baw LQ, eligl? yok titsatela 
Jost ey eetude iiivaisig" Jedd «ails setat ,astata misloresawoo edt 
Yow o¢ to etushastos o¢ beduecas teve Tiivaiele ead emis om te.od os 
«igia atsege e'Titiaiele do Titvatselg Sadd staegs'etasbaeteb to 
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witisig to Jestetai edi Jenisgs ea tow » gatiliesed o2 of somersie7 
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 gallisl at bos soleeolnco yd Jnemgbul edd gatmitiaos at berre Javoo 
eittelototaseo ried ymoqu etasileggs 10% tqemghyt evtg,ot — 
had gtettesup al etistes [ges add deawe Oi MLE AI AURA, 20 suse 
sail .000,019 40% ston tert ommoce of boob tewit.o Attu Jt bosedmont 
bag goereds heroine aoleseinos yd tmemgbu a bed.eton edd totebled 
~wollot — 
vo) vetteatl 9 .Yeaiedts xaci —— * 






iid 


cae et , 

m4 

Fda 

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— 





“Se 
“My dear Mr. De Haan: 

"Supplementing our conversation, you may consider this 
your authority to contact the Receiver of the Woodlawn Trust & 
Savings Bank with the understanding that I will deliver title 
to him upon a cancellation of the first mortgage indebtedness 
now against the property. You are also authorized to contact 
Mr. J. &. Merrion of J. E, Herrion & Company with the definite 
understanding that any services rendered by him are to be 
without costs to myself, for the purpose of securing a 
cancellation of the first mortgage indebtedness in consideration 
of a conveyance of the property." 

Although appellee testified, over the objection of appellants, 
that before the above letter was written, he had a talk with a son of 
Mrs, Walsh, at which time the son stated that he wanted to get 
appellee authority from his mother "to work on the deal and whatever 
money was made, we would get for working out this deal, and he got 
me a letter of authority to work on the deal in February, 1937," 
he admitted that the letter of February 13 was the sole source of 
authority to act for Mrs, Walsh. Appellee was a real estate broker 
and advertised properties for sale, Appellant Joseph Altman, at 
the time in question, was a public high school teacher for the city 
of Chicago, He had some money to invest and seeing certain 
advertisements of appellee he called at the latter's office and 
talked with one Corbett, employed as a salesman by appellee,in 
regard to purchasing real estate. Altman testified that he inquired 
about apartment buildings and several were shown him by Corbett, but 
that he did not care to buy any of thems that Corbett then told 
Altman that he had some stores that could be bought at a bargain 
price, and described the premises, which proved to be the Walsh 
property; that Corbett stated that the property would be available 
in about ten days, that he knew the owner and he felt he could get 
a good buy on the property; that Altman told Corbett to go out and 
do the best he could, that he wanted to get a good deal on the 
property, the best possible; that Corbett then said he would go mt 
and get the best deal for Altman that he could; that he knew the 
property wes all right; "that he kmew these people and that we could 


make a good deal and that he could get a good deal for me and get 


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the best deal possible;" that Altman asked Corbett how much the 
property would cost and Corbett stated that there was a mortgage 

on it for $10,000, "that it would take $11,000 or so in order to 

put the deal across," that Altman would have to make a down payment 
of $5,000, and Corbett would have "no trouble about arranging for the 
balanee of approximately $6,000;" that Altman told Corbett that the 
figure sounded satisfactory to him and for Corbett to go ahead, 
Altman further testified that he had several conversations with 
Corbett concerning the deal; that in the first conversation, in April 
or May, 1937, Corbett stated that he could get the property for about 
$11,000, and that he would try to get it for that amount; that when 
Altman called again several days later Corbett stated to him that he 
could not get the property for $11,000 and that he would have to have 
$11,500; that several other people were trying to buy the property 
at $11,000; that he (Corbett) was dealing with a lady by the name of 
Mrs, Walsh, who was selling the property, Altman further testified 
that he did not know the property was incumbered and that a deal was 
necessary in order to clear the title; that Corbett "did not mention 
at any time, anything about clearing the title or what it would cost," 
Altman finally agreed to pay $11,500 for the property and he and his 
wife signed a contract, Altman received a copy of the contract but 
turned it over to appellee. It does not appear to have been intro-= 
duced in evidence, Appellants paid $5,000 in cash to appellee and 
gave him the judgment note in question, for $500, which was made 
payable to the order of appellee, In addition, appellee appears to 
have obtained a loan of $6,000 for appellants, which was secured by 
their. trust deed on the property in question, Appellee obtained the 
proceeds of this loan, Altman testified that he supposed, from his 
dealings with Corbett, that Mrs. Walsh was getting the $11,500 for 
her property. Mrs, Walsh received nothing in the transaction. She 
appears to have quitclaimed the property, but to whom is not clear 
from the record, The Walsh mortgage was at the time the property of 
the Woodlawn Trust & Savings Bank, which was then in receivership. 








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7 
On June 6, 1937, appellee offered to pay the receiver of the Bank 
$9,000 in full settlement of the Walsh mortgage note, The receiver 
accepted the offer on June 21, 1937, and on June 24, 1937, a court 
order was entered approving the settlement made by the receiver. 
The Altman deal was consumuated in July, 1937, in the escrow department 
of the Chicago Title and Trust Company. Save that she wrote the letter 
of February 13, Mrs. Walsh, "due to her advanced age and the precarious 
condition of her health," took no part personally in the transaction in 
question, She did not receive any money from the proceeds of the sale, 
nor did she pay any money in the transaction. Attorney De Haan testi- © 
fied that it was his understanding that appellee "had someone who was 
interested in the purchase of this property." 

Appellee states his theory as follows: “Plaintiff's theory is 
that he was the broker for the owner of the property in question; that 
he had her authority to sell said realty to defendants, but that if 
he did not have such authority it would not constitute him agent for 
defendants; that neither plaintiff nor his agent told defendants that 
$11,900 was the best price for which the ower would sell or that 
defendants could procure the property at a bargain price; but that even 
if such statements had been made they were not actionable and defendants 
had no right to rely upon them; and that any profit realized by plain- 
tiff in the transaction came from the owner and is of no legal concern 
to defendants." Appellee sought to prove by the testimony of Corbett 
that the latter did not make any statements to Altman that would cause 
Altman to believe that appellee was acting for the Altmans in the 
transaction; but when the entire testimony of Corbett is considered in 
the light of the testimony of Altman and certain undisputed mountain 
peaks in the case, it is plain that the testimony of Corbett did not 
successfully rebut the testimony of Altman in reference to the 
transaction, Corbett conceded that he pretended to be carrying on 
negotiations between the Altmans and the owners of the property in 
reference to the price; that he told Altman to make a written offer 
and he "would submit it to the owners;" that he never submitted any of 





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a 

the offers made by Altman, to lirs, Walsh, and that he never saw 

Mrs. Walsh, Corbett concealed from Altman the fact that the holder 
ef the Walsh mortgage would release iirs, Walsh from her indebtedness 
upon the note upon receiving $9,000, It is clear that the Altmans, 
in paying the money and notes, thought that they were buying the 
property from lirs, Walsh and that she was receiving the purchase 
price. It will be noted that appellee, in his answer to the counter— 
claim, states: "Said note was retained by plaintiff as part of 
plaintiff's real estate brokerage fee and commission to which he was 
and is entitled." Under the facts of this case appellee could not 
charge irs, Walsh for brokerage fees and commission, nor could he 
reasonably charge the Altmans a brokerage fee unless he was acting as 
their agent in the transaction, 

It is sufficient to say, in regard to the law of this case, 
that when we find, as we do, that appellee was the agent of the Altmans 
in the purchase of the real estate and that he was guilty of a breach 
of his duty to them, the law is settled, In Salsbury v. Ware, 183 111. 
505, the plaintiff furnished the defendant with $12,480 to be applied 
to the purchase of certain lands from the owners thereof, The defendant 
applied only $6,640 toward the purchases and appropriated the difference 
to himself. The plaintiff contended that the defendant undertook to buy 
the land for him as his agent and that the defendant deceived him by 
making him believe that he paid $12,480, whereas he paid only $6,640 
therefor. The defendant contended that he in no way acted as agent 
for the plaintiff, The Supreme court said that the determination of 
the case depended upon the relation which existed between the plain- 
tiff and the defendant, and further said (pp. 510-512): 

"It cannot be said that, in making these purchases, Ware acted 
as agent for Ingraham and Thompson, the owners of the property. The 
theory, that he was acting as agent for the vendors, is negatived by 
his contention, that he was himself the owner of the property, and 
was selling it as his own property to the appellant, If he owned the 
property himself, or had been given options for the purchase of it 


a a 


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“Jae 
by the owners, he certainly was not acting as the agent of such 
owners in making the sales, 

"He never told Salsbury, the appellant, nor did the appellant 
ever know until shortly before the present bill was filed, that the 
appellee, Ware, claimed to own the property, or to be selling it as 
his own property, or that he had, or claimed to have, any interest 
of any kind in it. 


"The evidence shows, that Salsbury dealt with Ware as his 


his agent, or in such a way that ust relations existed betwee 
then, Ware d_no Ce) vantage o relationship to 


make a profit for himself, which properly belonged to Salsbury. Thee 
position, which he occupied towards Salsbury, was one of trust and 


confidence, and, inasmuch as trust and confidenee were placed in him 
by Salsbury, he could not take advantage thereof to the injury of 
Salsbury. 

"The law upon this subject is well settled. In equity, an 
agent is disabled from dealing in the matter of his agency on his 
own account, The agency being established, the agent will be 
compelled to transfer the benefit of his contract to his principal, 
even though he may swear that he purchased oa his own account, It 
makes no difference that such agent is a mere volunteer; if he pro- 
fesses to act not for himself but for another, he has trust and con- 
Cideenat ia hin, The rule applies as well to an agent, who becomes 
such by volunteering, as to one who is made such by appointment, If 
confidence is reposed, it must be faithfully acted upon and preserved 
from any intermixture of imposition. The party relied upon must see, 
that he meets fairly and squarely the responsibility of his position, 
and does not take any advantage, either for his om gain, or to the 
injury of the person whom he represents, If a party employs an agent 
to make a purchase of land, he is entitled to all the skill, ability 
and industry of such agent to make the purchase on the best terms that 
can be had, and is entitled to the property at the price the agent 
pays. The agent cannot avail himself of any advantage his position 


i 
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— 





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=—10— 

may give him to speculate to the injury of his principal; all the 
profits and advantages gained in the transaction belong to the 
principal. (Casey v, Casey, 14 Ill. 112; Dennis v, McCage, 32 id. 
429; Cottom v, Holliday, 59 id. 176; Conant v, Riseborough, 139 id. 
383; Helberg v, Nichol, 149 id. 249.)" (Italics ours.) The court 
held that the defendant was required to account to the plaintiff for 
the difference, amounting to $5,840, retained by the defendant, See, 
also, the late case of Lerk v, McCabe, 349 Ill. 348, where the court 
said (pp. 360, 361): 

"The relation of principal and agent is one of trust and con- 
fidence, and where such confidence is reposed and such relation exists 
it must be feithfully acted upon and preserved from any intermixture 
of imposition, The rule is the same no matter how large or how small 
the commission paid may be or whether the agent is a mere volunteer 
at a nominal consideration, (Perry v,. Engel, 296 Ill. 549.) An agent 
acting for the purchaser of land, whether by appointment or as a volun- 
teer, must see that he meets fairly and squarely the responsibility of 
his position and does not take any advantage, either for his own gain 
or to the injury of the person whom he represents, (Salsbury v. War@, 
183 Ill. 505.) The rule is well established in equity that the relation 
existing between principal and agent for the purchase or sale of 
property is a fiduciary one, and the agent in the exercise of good 
faith is bound to keep his principal informed on all matters that may 
come to his knowledge pertaining to the subject matter of the agency. 
(Reiger v, Brandt, 329 Ill. 21.) An agent must not put himself, during 
the continuance of his agency, in a position adverse to that of his 
principal. To the latter belongs the exercise of all the skill, ability 
and industry of the agent. If a party employs an agent to make a pur- 
chase of land he is entitled to all the skill, ability and industry of 
such agent to make the purchase on the best terms that can be had, 
(Cottom v, Holliday, 59 Ill. 176.) Am agent cannot deal for his own 
advantage with the things purchased for his principal, or become a 


seller or buyer of them, because of his confidential relation and his 





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ag 
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— 

duty to disclose to his principal every fact, circumstance or 
advantage in relation to the purchase which may come to his knowl- 
edge, (MeDonald v, Fithian, 1 Gilm. 2693; Strong v, Lord, 107 Ill. 
25.) An agent cannot directly or indrectly acquire an interest in 
his principal's business without the principal's consent freely 
given and with full knowledge of every matter known to the agent 
which might in any way affect the principal's interest, and it is 
of no consequence that no fraud was intended or that no advantage 
was derived by the agent. (Fox _v, Simons, 251 111. 316.)" Many 
other cases to the same effect might be cited, but the rule is too 
well settled to require further citations, 

Under the facts of this case, as we find them, and the 
settled law bearing upon the facts, it is plain that the judgment 
for $607.50 entered in the trial court against the Altmans, 
appellants, must be reversed, 

As to the counterclaim of the Altmans: Appellee, counter- 
defendant, received from the Altmans $11,500, The Altmans frankly 
concede that they must do equity by appellee and they admit that 
he is entitled, in addition to the $9,000 that was paid to the 
receiver, to credit for certain items amounting to $812.99, making 
the total amount of credits conceded to be due appellee $9,812.99. 
There are two items that appellee claims he is also entitled to in 
any event, viz., $60, that he spent in advertising the property 
“before Mr, Altman came into the picture," and $750, which he claims 
he owes an attorney for services in securing the release of the Walsh 
note and the judgment thereon. Appellee did not testify that he paid 
the attorney $750 for the services, We are of the opinion that 
appellants should allow appellee something for the services, but 
$750 is an excessive amount, In our judgment $375 would be a reason- 
able fee for the services and that amount is allowed, There is no 
good reason why appellants should be arava for the advertising 
item. As the claim df appellee for the $500 note has been disallowed 
by our judgment, the amount of that note should be deducted from the 





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total amount received by appellee from appellants, leaving the 

net amount that he received from appellants $11,000, The total 
amount of credits to which appellee is entitled is $10,187.99, 

which deducted from $11,000 leaves $812.01, and appellants are 
entitled to judgment for that amount upon their counterclaim. 

The judgment of the Municipal court of Chicago of $607.50 
in favor of Joseph E, Merrion, appellee, plaintiff in the court 
below, and against Joseph Altman and Adella C. Altman, appellants, 
defendants in the court below, is reversed; and judgment is 
entered here in favor of Joseph Altman and Adella C, Altman, 
appellants, upon the counterclaim, and against Joseph E, Merrion, 
appellee, in the sum of $812.01. 

JUDGMENT REVERSED; AND JUDGMENT HERE IN 
FAVOR OF APPELLANTS (COUNTERCLAIMANTS) 
AND AGAINST APPELLEE (COUNTER-DEFENDANT) 
IN THE SUM OF $812.01. 


Friend, P. J., concurs, 
John J. Sullivan, J., took no part in the decision of this case, 





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‘APPEAL FROM CIRCUIT COURT 
or COOK COUNTY. 


307 LA. 383! 






Ve — 
MARTHA HAEGELE, 

Executrix and Appellee, 

MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 
William H, Haegele died on July 9, 1931. By a will (date 

of the same not shown in the record) he left his entire estate in 
equal parts to his widow, Martha Haegele, and Myra Haegele Driever, 
a daughter by his first wife, They were named joint executrices 
and qualified as such in the Probate court of Cook county, but 
later the daughter resigned by leave of court. Martha Haegele, 
executrix (appellee), filed an inventory certifying that no real 
estate nor personal property belonging to the deceased had come to 
her hands, possession or kmowledge, liyra Haegele Driever (appellant) 
filed exceptions to the inventory, in which she charged, inter alia, 
that deceased owned, at the time of his death, 3,443 of the 12,000 
shares of the capital stock of the Haegele Ice Company, a corpor= 
ation, In the Probate court the trial judge found that Haegele was 
the owner of the said 3,443 shares at the time of his death and 
ordered the executrix to file a supplemental inventory charging 
herself with said shares, The executrix prayed an appeal to the 
Circuit court, where, upon a trial de novo, the trial judge found 
that Haegele was not the owner of the said shares at the time of 
his death and ordered that all exceptions of Myra Haegele Driever 
to the inventory of the executrix be overruled and denied. Judgment 
for costs for $21.50 was entered against the objector (appellant), 











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2 
which judgment was satisfied in open court by appellant and an 
order to that effect was entered, Eighteen days later appellant 
served a notice of appeal and subsequently perfected her appeal 
in this court. 

Appellant contends that the court erred in holding tat the 
said stock did not belong to the estate of William H. Haegele; that 
the instrument introduced in evidence (hereinafter set out in full) 
is merely an appointment of an agent and a direction to him to bring 
about the transfer of the stock in the future; that since the 
principal died before the directions were executed the agency ter= 
minated, and the stock belonged to the deceased at the time of his 
death, Appellee contends that the instrument in question "is a 
direction by beneficiaries, one of whom was William H. Haegele, to 
David S$. Horwich, the trustee, transferring and vesting said 
Haegele's ice stock interest in his wife; and Secondly, in any event, 
the evidence, both oral and written conclusively shows that William 
H. Haegele, during his lifetime, divested himself of any interest 
in the stock in question to the sole benefit of his wife Martha 
Haegele," 

The material facts in the case are notindispute. William 
H, Haegele owned 3,443 shares of stock in the Haegele Ice Company. 
On October 20, 1930, David S,. Horwich, attorney, was appointed a 
trustee by all of the stockholders of the Haegele Ice Company. The 
instrument creating the trusteeship is not in evidence, but Horwich 
testified that by the terms of the trust he was to liquidate the 
assets and distribute the proceeds to the stockholders and that by 
May 1, 1931, the corporation had been practically liquidated, The 
3,443 shares of stock were then in the hands of the Prudential 
Trust and Savings Bank as collateral, On May 22, 1931, approximately 
two months prior to the death of Haegele, the latter "summoned" 
Horwich to Twin Lakes, Wisconsin, where Haegele was then residing, 
and when Horwich arrived at the home of Haegele at that place he 
found there, in addition to Haegele, Henry Haegele, a brother of 


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~~ 
William; Mr. and Mrs, Schnitzer; Louise Kircher, a sister of William; 
and the appellee. Louise Kircher was a sister of William and Henry, 
and Mrs, Schnitzer was a daughter of Louise. Horwich (called as a_ 
witness by appellant) testified that William Haegele told him that 
"he wanted to make arrangements about the Iwin Lakes property, the 
vacant lots. Q. What did he say, if anything, with respect to this 
stock or his interest in the corporation? A. He said his daughter 
was getting forty thousand dollars in insurance money and she was 
amply protected, He wanted me to draw a document, as trustee, that 
I would be directed that that stock the bank was to return, that 
stock was to be paid to Martha Haegele," The witness then stated 
that at the direction of Haegele. he drew up the following instrument: 
“May 22, 1931. 

"(1) David S, Horwich, trustee, is hereby directed to take 
steps at hisdiscretion to secure from the Prudential bank, stock, 
insurance, ete., placed as security by William, Henry, and Charles 
Haegele, which deposits were made for the benefit of Haegele Ice Co, 

"(2) David S, Horwich, trustee, is hereby further directed 
te consider the common stock in the Haegele Ice Company, now in the 
name of William Haegele and held by the Prudential Bank, as stock 
which the bank was to return to William Haegele, and to place so 
far as possible the interest of William Haegele in said stock in 
the name of Martha Haegele, with Martha Haegele to have full 
authority to vote the said stock, and the securities purchased by 
David S,. Horwich, trustee, from the funds held for the payment of 
said stock shall be turned over to Martha Haegele when the stock 
at the bank shall have been returned or cancelled together with 
any monies which may be payable later on the said stock, | 

"(3) David Ss. Horwich, trustee, is hereby directed to pay 
to William Haegele the sum of $50.00 per month for the board and 
upkeep of Charles Haegele until all of Charles Haegele's stock in 
the Haegele Ice Company, has been retired at the rate of $2.00 per 


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av 
share, and after such time, Louise B. Kircher, William Haegele ana 
Henry Haegele, are to share the board and clothing and medical expense 
of said Charles Haegele, share and share alike as long as said 
Charles Haegele lives. 
"All by order of the undersigned. 
"David S,. Horwich, 
Trustee, 

"William Haegele, 

"Henry Haegele, 

"Louise B. Kircher." 
The witness further testified that "upon William Haegele's death I 
collected $23,861, which was the net amount due under the policy, and 
distributed the money to the common stockholders and delivered the 
pro rata amount due on William Haegele's stock, pursuant to this 
letter of direction, to Martha Haegele;" that Martha Haegele never 
had the 3,443 shares of stock in her possession and that the stock 
certificates were still in the bank's possession. In respect to the 
shares of stock the witness further testified: "The bank had agreed 
to return the 3443 shares to William Haegele together with the stock 
that Mrs. Kirchner, a sister, had up as collateral with the Haegele 
Ice loan. They had agreed to return that collateral to the owners 
if I presented them with a certified copy of a resolution from the 
bookkeeper of the Lincoln Ice Company guaranteeing to indemnify the 
bank on the bond issue, In other words the Lincoln Ice Company were 
to be liable to the same extent as the Haegele Ice Company, the maker 
of those bonds, Q. Then did you indemnify them to that extent? 
A. I presented the certified copy of that resolution to the bank 
and gave them sixty days to return William Haegele's stock. 9. To 
you as trustee? A. Yes, to me as trustee, which they did not do." 
Harry [Henry] Schnitzer testified that on May 22, 1931, “we were 
called out to iwin Lakes where Mr. Haegele resided at that time 
because they were dividing some property up that my mother-in-law, 
Mrs, Kirehner, was interested in, When we got out there we got 
finished with dividing the property and Haegele stated at that time 
that he wanted this ice stock and all proceeds to be turned over to 








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aevon elogesH sdiwsM tadd “polegeah afdaa of ymottoetth to otter 
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etd of ooqeet mI .oobeeoeeog ealasd oft At Ifbse erew eedsolits109 
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edt movt nottulozss s to yqoo bettivass 6 ashw mens besHeeetg’ I tk 
edt Ytinmebat of gatostmetang yusqao0 col mlooktd edd to reqseitood 
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cubs — piensa! eLogesll: bas — — —— 
of tevo bonis 6d-od: — brs Adose bot wid “bestisw: 





= 2 

his wife at that time, Martha Haegele, A document was drawn up at 
that time which I read because I believe my mother-in-law signed it 
at that time and we usually read practically everything she signed, 
He did state at that time, in fact he has stated that the insurance 
was turned over to his daughter and the only thing he had left, 
outside of the Twin Lakes property, was the stock which he wanted 
turned over to his wife, Q. I will show you Respondent's Exhibit 
No, 1, and ask you if that is a copy of the instrument that you 
mentioned? A. That is right, @. Did you see that signed by 
William Haegele? A. I saw it signed and I read it haters it was 
signed." Appellant's counsel did not cross-examine the witness save 
to show the relationship of Louise Kircher and the Schnitzers to 
William Haegele, WMrs, Sehnitzer testified that on May 22, 1931, "my 
uncle asked us to come over to his Twin Lakes home because he was very 
anxious to divide the property that the Haegele Ice Company owned 
and also to make arrangements for his wife, Martha Haegele, to receive 
the money due on the stock of the Haegele Ice Company. He said that 
his daughter was getting all of his life insurance policies and he 
wanted her to get whatever money was due on the stocks of the Haegele 
Ice Company. Q. He wanted her to get them, Who doyou mean by 
‘her'? A. Martha Haegele, his wife, Q. What was done? A, A 
paper was drawn up, which my husband read and my mother signed on 
May 22, 1931. Q@. I show you this document, Respondent's Exhibit 

No. 1, and I ask you to say whether this was the paper that was 
Signed? A. Yes, this is my mother's signature, * * * Mr, Matheny 
{attorney for appellant]: No cross examination." Appellant testified 
that on May 1, 1931, the 3,443 shares of stock of the Haegele Ice 
Company were “up as collateral at that time with the bank, together 
with his life insurance policies;" that she was the beneficiary ix 
the life insurance policies; that she knew her father owned the stock 
because it was up with the bank with the life insurance policies as 
collateral; that she did not know, personally, that the stock "was 

up with the bank," but she learned that fact after the death of 


— 
ts qu oweth eaw taemuooh A safegosH sitisK yomis Jadd ts ottw Std. 
$2 hoagie wel-nk-seddom yo ovetlod I causced basa i dotdw omit Jedd. 
,bengie ade gutdiyiove yileeltesuq beet yileves ow, bes omtd dads ts... 
eonewednt edt tolt betete ead al tost mt ,omis sect ds,otate, Sth) ol 
ettel bar od yatdd yino odd fae usddgved eld of revo bogausd a au 
betas ed dotdy aoota edd easy qytieqetq acwxed aint edd to eblesuo— 
dididxl e'saobaoqaes woy wode ity L .9 .ottw ald od teve bonus 
woy tadt soommbent oft to yqoo s et tad tt woy Aes bus on 
Ud bengte stadt coz woy DEG 29 sddgle pl pect »A . Themotinem. 
ea ¢£ stoded ¢f been I bus bengie ti wea L.A SekopeaH mati tt.., 
svce asondiw oft setusxs—cegto ton bib leanyeo etiaeliedga "»beagte,. 
ot atexdtoriog orld Se tesdowth catwol to qidenotislem edt wode, of... 
ya" _ff@f 4SS.ysi wo tant hetiivecs ross hada, .2ail ...eLegealt musth 
y1ev saw od sevaned amor nowed.sidw? etd of sove emo of as Devas eLomy 
- Porro Yyrsqmod Sol eLegesit end tadi yxeqomq sddohivth of, axolxns, . 
evissst of ,olegesl adidas ,ottw aid no? ataomeynstts ealam of ogis bas. 
jadd bisa ef .yanqmod sof ofogesl edt to Aoota edd newb Xonom adt,, 
edi bus eetotiog sonsment oltl etd to Lie gmbtteg acm, teddgush etd. 
efogest add to adoote add mo cub eam Yonom tevedadw toy at) ted hodcan. 
“yd meen seyok oni west deg ot tod botasw oH «9 j«Wreqmad 9oh) 
A gh eneb esw hed. «f .@hiw ald.,.elegesl adtieM, .a ' red! 
po hoagie teddom yu bas boot bnedend yo dotdy .q¥ auatb 26w 7° 
- didieixd a'dnobsoqaeh qiaemmoob etds woy wode I «9 LEQL «SS Kell 
acw dadd iwsqsq edd sow ais todiedy Yee oF woy des L bas oak oll, 
Yossie «eM * i pomptangia styedtom va ai eidd 20% .A  thoagte | 
pottivecd sneLieqad. “,woktantmsxe avons of .sliasileqgs, tot, veazodta]., 
ool soyoall add to Avede to eenede EPhes veld, LERL at yall ao add 
qsciteged yined odd dtiw omtd tad, te istedelfos as qu" eTem. yasqmo?. 
ut yretottened esd asw ede dadd "jaetoilog somema (etl eld diy 
Hooda odd bonwo aedte? cen wool ede tadd, yeetottog, sonaauent)ot2E, eat 
es eetotiog soasuvent ettl edd dd iw, nad. odd date eu eam. 3b onusceg. 
eaw" sooda edt sett — — — — 





26 
her father, 

Whether we decide the question involved in this appeal 
solely by interpreting the instrument dated lay 22, 1931, or by 
interpreting that instrument in the light of the oral evidence 
as to what transpired at the time of the execution of the instru=- 
ment, our decision of the question involved would be the same, viz., 
that William Haegele at the time in question divested himself of all 
interest in the stock in question and assigned his interest in the 
stock to his wife. To hold otherwise would be to defeat the plain 
intent of Haegele, We do not deem it necessary to decide whether 
the assignment is legal or equitable in its nature. "The doctrine 
is well settled, that courts of law will recognize and protect the 
rights of the assignee of a chose in action, whether the assignment 
be geod /law or in equity only." (Morris v. Cheney, 51 Ill. 451, 
454. See, also, Savage v. Gregg, 150 Ill. 161, 168.) Other cases 
to the same effect might be cited if it were necessary. That pro= 
bate courts have equitable jurisdiction in matters pertaining to 
the administration of estates, see the opinion of Mr. Justice Wilson 
in In re Estate of Kinsey, 261 Ill. App. 481, 487, where the rule 
is stated and cases are cited in support of it. 

In support of her argument that Haegele, by the instrument 
in question, merely intended to bring about an assignment of the 
stock to appellee in the future, appellant states in her brief: 
"While the stock was 80 deposited as collateral, David S. Horwich, 
the trustee for the corporation, proceeded to liquidate its assets 


and to distribute the proceeds, The pro rata portion due on the 





shit ẽ — ——— 


during his lifetime, and efter his death, the cash accruing was 
paid to Martha Haegele on the theory that the stock had been assigned 
to her by the instrument above set forth including the proceeds of 
insurance on the life of William H, Haegele payable to the corpora- 
tion." (Italics ours.) The alleged fact stated in the italicized 
part of the foregoing is not sustained by the record, Turning to 





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_ stbessong, ecit — 2 — 








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bengtees nsed baci Aoode add godt yrosdd odd a0 ofegesH sitisM of Staq — 
to abesoorg edd gatbwloat ad aoa tee. evoda, poner seeceihinelt mia 
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bestoliatt odd at bedsia dost bogetts of tract —— — — — 






‘of yatnwT ,brocer eid YS bontstawe ton.2t aetegonen edd 20 dn 





ay 
the page of the record that appellant cites in support of the 
statement, we find that Horwich testified: "I had to pay over to 
William Haegele two dollars per share on the 3443 shares * * *, 
I paid that to him as a stockholder," It appears from the record, 
however, that Horwich, when he made the above statement, was referring 
to a time prior to the date of the execution of the instrument in 
question and when he, as trustee, was engaged in liquidating the 
corporation. He testified, as heretofore stated, that the corpora- 
tion was practically liquidated on May 1, 1931, that then "all the 
assets that remained were a few dollars that we were trying to 
collect on the accounts receivable." The instrument in question 
was not signed until May 22, 1931. 

The decision of a motion of appellee to dismiss this appeal 
was reserved to the hearing, The motion will be denied, 

The judgment of the Cireuit court of Cook county should 
be and it is affirmed, 

JUDGMENT AFFIRMED, 


Friend, P. J., and Sullivan, J., concur, 








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41142 


THE PEOPLE OF THE sate oF {LLINOYS 
ex rel, CHARLES HE f 








APPEAL FROM SUPERIOR 
Vv e = 


| v3 i PON OF COOK COUNTY, 
ltunielpal Corporstipa, | — IS 07 LAs 3* 
MR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 

The People, plaintiff, ex rel. Charles J, MacGowan, 
brought a mandamus suit against the Chicago Park District, a 
municipal corporation, defendant, seeking a writ of mandamus 
commanding defendant to pay to relator the sum of $500, which 
he claims is due him as the balance of his salary as superin- 
tendent of employment of the West Chicago Park Commissioners for 
the period from July 1, 1932, to April 30, 1933. After a trial 
by the court judgment was entered ordering that a writ of mandamus 
issue directed to the Board of Commissioners of the Chicago Park 
District commanding them to meet as the Board of Commissioners 
and to pass such legislation as may be necessary to provide for 
the immediate payment to relator of the sum of $500 and to do any 
and all things which may be necessary to be done to enable relator 
to be paid said sum by defendant. Defendant appeals, 

Plaintiff filed an appearance in this court and after 
defendant had filed its brief we allowed plaintiff, upon its motions, 
two extensions of time in which to file its brief, but it failed to 
file one, The able and experienced counsel of the relator has 
apparently abandoned the defense of the judgment, 

The petition, in substance, alleges the creation of the 
West Chicago Park Commissioners; the adoption of the Act relating 
to Civil Service in Park Systems and the creation of a Civil 
Service Board of the said Commissioners under said Aets; the 
adoption on April 27, 1927, by the said commissioners of a 
resolution appointing relator superintendent of employment of 








— ART YO HOTATIO mT aEREVZATA uaguade aorrem 2 ; 
.awodosid .L aclisdd .for xo Aiantata olaoe⸗ oxi? | 
8 ,volwe2id A1et ogeokdd adt danteys o tive “eumssbasat 8 talgurond 
emsbaism to Jim s anhicee sSuabaetod OL w10q709 Laqtotaum 


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| Yas ob of bas 0028 to moe ont to totsflor o¢ tnomysq etalboumt edt 
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| salsoqqas jnsbreteS .tusbue'teh yd mye bise bisq od of 

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<hmatt ex esi moqy ,titttnielq bewolls ow tetad eft beLit ber tJasbaeteb 
of belist tk tud ,tetad ast oLtt of Aolicw mt omtd to enoleneixe ows 
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gattef[e1 goA edd to motiqobs eft yetemotezimmod ais1 ogso ido saow 

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ee 
the Board of West Chicago Park Commissioners for a period of six 
years at an annual salary of $6,000; the assumption of the duties 
of the position by relator on April 28, 1927; the adoption of a 
resolution on June 30, 1932, by said commissioners directing the 
Civil Service Board to place in effect on July L, 1932, a wage 
reduction of approximately ten per cent as to all employees except 
certain union employees whose wages had been previously reduced 
in the same proportion; that as a result of the said adoption 
relator's salary was reduced ten per cent for the period from July 
1, 1932, to April 30, 1933; that the West Chicago Park Commissioners 
did not pay relator his salary as provided in the resolution 
appointing him and that on April 30, 1933, they owed him $500, 
The petition then alleges the creation of the Chicago Park District 
and its coming into legal existence on May 1, 1934; alleges that 
relator requested the commissioners of the Chicago Park District 
to pay him the alleged balance due on his salary and their refusal 
to do so; alleges that as said superintendent relator was a municipal 
officer within the meaning of Section ll, Article 9, of the Illinois 
Constitution of 1870, and that his salary could not be reduced during 
his term of offices that he nad/ vested and property right in the 
same of which he was unlawfully and arbitrarily deprived by the 
unlawful act of the commissioners of West Chicago Park District; 
that the Chicago Park District has now and always had sufficient 
available funds cut of which to pay relator, 

The amended answer of defendant, Chicago Park District, is 
a lengthy one, but in our view of this appeal it is only necessary 
to refer to the parts of the answer wherein laches and estoppel 
are raised, The answer alleges that relator is guilty of laches; 
that he accepted the reduced salary from July 1, 1932, to April 
30, 1933, without protest, took no action against the West Chicago 
Park Commissioners to restore the salary; permitted saidcommissioners 
to go out of existence May 1, 1934, without making any demand on 
them or taking any action in reference to the salary; that after the 


| etenotcetmmoobisa bestimueq xxus Cas odd erodeon oJ eyemoteetumod A184 


f= 
xle to boitveq s tot atenotezatumod Axel ogsotdd geeW to basod ont 
weit oft to notiqmvecs edt 7000,0¢ to yislee Lavnns as ts ets0y 
s to soliqobs sit IVECEſ 8S Ltagé mo sodalet yd mottinog edt to 
ect gatvoorth exsnoteeimmoo bisa yd GSCI .O€ ‘ew mo nottnfoes1 
ogaw s .SEQL .f Yet no Jootte mk epelq oF bigot eotviee Ltvld 
dqeoxe eosyolgns Ifs ot es sno> 19q mot ¥Ledemtxormqge to moltouber 
beovbet ylevolvony meed bad 2egaw eRosiv aeeyoton moteur atsdrep 
molvgqebs biee ey to dineot s as tadt utołd aogouq ousa edt at 
VAM mort bofieq elt sot ime9 t8q aes beoubet ean Ytslaa 2! totslor 
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sotiuieest en) at bebivesg aa ¥tslee ait tojsilet xaq tos bib 
 008@ abe howo yous .féQL 6a IIAqA oo told bag mid gotintoqds 
totuteiG aus1 ogeokd? ed Yo aotd as a ould segelis aedd moltiteq ext 
tad eogetis NOL .f yall no cometetxe Lazel otat satupo ath fas 
Jokiaid Huet ogsetdo ext to etenotee Limos edd Botzonpex t09siox 
Leeston tied? brs Ytelsa ati ao ash sone led begelia edt mtd xaa of 
faqtoimum s eaw toislex incbustalteque bisa es tant eegetia yor ob oF 
etontiII odd to .@ eLotdtA .Lf moles’ to amtnsem odd miitin t9pktI0 
galaub beouber od tom biyeo yisise aid Jadt bas eOV8L To motsustyanoo 
aar at Sxigtt yfteqesq fins posaov \bad od tact yoottio to axed abd 
oft yd bovtagob yitweisidis bis yilwtwelay aan on Aotcw to emer 
gJoliseld ated ogsoid® JeoW to exsnoteatmmos edd to tos Litwslay 
dnelottive ber eyswis bus wom ass Jotijekd Ais ogsoidd edd tedt 
Lae _ stotalet yeq ot dotdy Yo Jo ebaut ⸗ 
ak atotstet Axe ogaotdd, Jasbacteb to tewens bebsoms edT 
yiseasoen ine at tt Leeqcs eld Yo woky auo at dud ,emo vitaned. | 
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tnedpa tp WLinp AL pales tact. sepekta sewpee sgh shontex one 
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pila? Be PA 









fo basseh Yas an bles tword Lw eFEQL at Ya oqaeta ree, 3 o 310, fat 
“edd tetzs sadt yytelez, ed¢ of eomoretot at aota os yas, anit godt 


-3- 

Chicago Park District came into existence on Way 1, 1934, relator 
waited until June 30, 1937, a period of three years, before filing 
this petition, and waited until November 30, 1937, before he caused 
summons to be issued; alleges that the petition sets forth no 

facts excusing failure to file the petition earlier or justifying 
the delay; alleges that since the occurrences in question the West 
Chicago Park Commissioners ceased to exist and were superseded by 
the Chicago Park District; that payment of the money claimed would 
ereate confusion and disorder and disarrange public service by reason 
of delay, lapse of years and change of circumstances; that conditions 
existing in 1933 in reference to the corporate structure of the West 
Chicago Park Commissioners have ceased to exist; that the action 
requested would cause confusion in the handling of funds of the 
Chicago Park District; that no demand was made by relator upon 
defendant prior to the filing of the petition; that no facts are 
alleged showing a legal duty of defendant to perform the acts sought 
to be performed nor by whom the acts requested should be performed 
and whether such acts can be legally performed by such persons; that 
defendant has no funds in its possession from which relator can be 
legally paid; that relator voluntarily accepted the reduced salary 
during the period in question and by his action he waived his right 
to said additional amount; that the resolution of June 30, 1932, by 
the West Chicago Park Commissioners requested and did not direct 

the Civil Service Board to put said wage reduction into effect; that 
relator was a member of the said Civil Service Board and its secre- 
tary; that at a meeting of the said board held on July 28, 1932, at 
which relator was present and acted as secretary, the letter from 
the commissioners and the resolution adopted by the commissioners 
requesting the wage reduction was read and the members of the said 
board, including relator, voted to enforce and put into effect the 
reduction as requested, and directed relator as superintendent of 
employment to put said policy into effect; that relator, as said 
superintendent, put said policy into effect, reducing the pay of 


—— 

sotelor Yell so eonetalue oft omso totadeld wast ogsotdd 
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on do10k e¢ee aottiveq edd gett eegolin ybemeet od of anomwe 
sakyitvest “wo seifise goidiveg eft slit of qiuiist gatawoxe esos? 


#aeW eft aolisenp ut econotayeso eft conte tadt eogetis, XsCob ostt 


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— eae 
Sin Cn 






—4e0 

all employees, including relator, ten per cent; that during the 
period from July 1, 1932, to April 30, 1933, relator certified the 
pay rolls as to correctness, as required by the provisions of the 
Civil Service Act, showing the salaries of all employees, including 
his salary, in the amounts so reduced, and he certified to the 
correctness of the pay rolls in said amounts, 

A number of points are made and strenuously argued by 
defendant in support of its contention that the judgment of the 
trial court should be reversed, but in our view of this appeal it 
is only necessary to consider two of the points: (1) "The plain- 
tiff is guilty of such laches as bars his right to the relief 
sought." (2) "The plaintiff is estopped by his ow action from 
Claiming the monies alleged to be due him," These two points 
are so clearly meritorious that it is not difficult to understand 
why the relator abandoned the defense of the judgment, 

The West Chicago Park Commissioners ceased to exist on 
April 30, 1934, and on May 1, 1934, the Chicago Park District came 
into existence, Om April 28, 1927, the West Chicago Park Commis- 
sioners appointed relator superintendent of employment of said 
commissioners for a period of six years, at a salary of $6,000 
per year, The Civil Service Board of the said commissioners con- 
sisted of one James, who was also a Park Commissioner and president 
of the board; one Roehler, also a Park Commissioner, and relator, 
Relator was secretary of the Civil Service Board, On June 30, 1932, 
because of the great depression and the conditions resulting there- 
from, and in the interest of economy, the commissioners of the 
West Chicago) District passed a resolution requesting the said Civil 
Service Board to reduce the pay of all officers and employees ten 
per cent. On July 28, 1932, at a special meeting of the Civil 
Service Board, which was attended by James and relator, a resolution 
was presented to the said board reducing the pay of all officers 
and employees ten per cent, except in the case of certain union 


employees, who had had their pay previously reduced, James and 


be 


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baad e-xobeu ot $ Luo t2bb Jon ak IL dualt euotod rem Unsere 08 e138 
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j= 
relator voted in favor of the resolution and it was passed. The 
resolution also directed relator, as superintendent of employment, 

to put the salary reduction into effect. The minutes of this 
meeting are signed by relator as secretary and upon the witness 

stand he admitted the correctness of the minutes, After the said 
special meeting relator proceeded to carry the resolution into effect 
and directed the department heads to reduce the pay of all employees 
ten per cent, Relator was head of the Civil Service Department and 
in such capacity reduced the salaries of all persons in his departe 
ment, including his own, ten per cent. He received and accepted 
Salary checks in the reduced amount for the balance of the period 

of his appointment, viz,, from July 1, 1932, to April 30, 1933. 

On each salary check was a statement to the effect that the check 

was payment in full for salary up to and including the date specified 
on the check, Relator accepted the checks in payment of his salary 
and indorsed and cashed them. In accordance with the requirements 

of the Act relating to Civil Service in Park Systems he certified 

to the correctness of the pay rolls of the Park District, which pay 
rolls included his own salary in the reduced amount, The instant 
suit was not filed until June 30, 1937, which was three years and 

two months after the West Chicago Park Commissioners had ceased to 
exist. uring the period in question relator took no legal action 

in regard to his pay. It would be difficult to imagine a stronger 
ease of laches and estoppel against a relator than is present in 

the instant suit. We have heretofore passed upon several cases 
(People ex rel, Mulvey v, City of Chicago, 292 Ill. App. 589; 


Anderson v, Sanitary Dist, of Chicago, 304 Ill. App. 259, abstract 
opinion) in which we held that the demands made upon certain 


municipal corporations were so unconscionable in their nature that 
the 4ssuance of the writ of mandamus would work a grave injustiice 

to the said corporations, In our opinion the instant claim is 

far more unconscionable than were the claims in the Mulvey and 

Ander cases 

ee 2 judgment of the Superior court of Cook county is reversed, 


JUDGMENT REVERSED, 
Friend, P. J., and Sullivan, J., concur, 


aI 


} 


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2AaVaR TMAMDCUL 
eMOMCD gob tsvilinve bas 4.t .f abaoket 








UR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 

Plaintiff filed an action of forcible detainer against 
defendant, The case was tried by the court without a jury and 
there was a finding that defendant was guilty of unlawfully withe 
holding from plaintiff the possession of the premises and that the 
right to the possession of the premises was in plaintiff, Defendant 


appeals from a judgment entered upon the finding. 

Defendant obtained possession of the premises under a 
written lease dated December 14, 1938, for a term of one year 
beginning January 1, 1939, and ending December 31, 1939, ata 
rental of $25 per month from January 1 to March 31, and $50 per 
month from April 1 to December 31, 1939. The premises consist of 
certain vacant lots, and the lease provides that they were to be 
oeecupied by defendant for the sale of used automobiles, 

We do not often find an appeal so devoid of merit as the 
instant one, Defendant's counsel constantly objected to questions 
put by plaintiff's attorney, and it was difficult to obtain from 
defendant's counsel the theory of the defense, After a eareful 
reading of the transcript of the evidence we find that defendant's 
counsel made two points in support of his contention that there 
should be a finding for defendant. The first was that the written 
lease between the parties was mot admissible because it violated the 
statute of frauds. There was not the slightest merit in the point 
and it has not been urged in this court. The second point urged was. 
that plaintiff's evidence showed that a holdover tenancy had been 
created in favor of defendant, That point was also without the 


— — 


Se. — eee — 


—— 








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slightest merit and has not been urged here, Defendant, after he 
had been served, on December 3 or 4, 1939, with a notice to vacate, 
attempted to create a hold-over tenancy by mailing to plaintiff a 
eheck on which he had indorsed: "Payment for rent of lot at 4747 
W. Madison St for month of January 1940," but plaintiff refused to 
accept the check and immediately returned it by registered mail to 
defendant. Defendant refused to receive the registered letter and 
it was returned by the post-office department to the sender, plain- 
tiff. In the trial court, defendant's counsel, in support of his 
argument that a hold-over tenancy had been created, made the far- 
fetched point that plaintiff had failed to tender to defendant in 
open court the check and therefore a hold-over tenancy had been 
created, Defendant in this court contends: (1) "Where premises 
have been leased to a prospective tenant, who is unable to obtain 
possession by reason of a former tenant holding over after his term 
expired, the right to maintain the action vests in the new tenant 
alone," and (2) that it was “incumbent on the plaintiff to prove 
that the defendant was in actual possession of the premises at the 
time the suit was instituted." Neither of these points was urged 
or presented in the trial court and under tihe settled rule they 
cannot be raised here for the first time, We may say, however, that 
there is no merit in either point. There was no evidence that a 
lease was ever made by plaintiff to a prospective tenant. The only 
basis for point (1) is the testimony of defendant that in 1940 he 
called up the home telephone of plaintiff and plaintiff's wife told 
him that they had rented the place, in November, to someone else, 
and that on December 3 or 4, 1939, plaintiff told him that he had 
rented the place to someone else, The burden of proof was on 
defendant to show that someone other than plaintiff was entitled to 
the possession of the premises at the time of the commencement of 
this action, and his testimony utterly fails in that regard, As 
plaintiff argues, even if this testimony of defendant were believed, 


and if it were assumed that plaintiff had rented the premises to 


ia 


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-3- 
someone other than defendant, such tenancy might have commenced 
at a later period than the time of the commencement of this action. 
The trial court, in view of the character of the defense, might 
well have refused to believe this testimony of defendant, His 
attempt to create a hold-over tenancy after he had been served with 
a notice to vacate tends to show that he would resort to any exped= 
ient to hold possession of the premises, Point (2) is a beld cone 
tention, in view of the fact that defendant's counsel, in the trial 
court, argued that defendant was a hold-over tenant. Furthermore, 
defendant took the stand in his own behalf and his able and adroit 
counsel failed to ask him a single question on the subject as to 
who was in possession of the premises at the time of the commence= 
ment of the suit, or at the time of the trial. As plaintiff's 
counsel argues, the manner in which this suit has been fought is 
a strong circumstance tending to show that defendant is still in 
possession, As the trial court stated, the defendant would not be 
defending the suit if he were not in possession of the premises, 
The defense to plaintiff's suit has been a technical one 
from the start of the proceedings, There is no merit in this appeal 
and the judgment of the iunicipal court of Chicago is affirmed, 
JUDGMENT AFFIRMED, 


Friend, P. Je, and Sullivan, J., concur, 


C * 


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40623 


MABEL C, WEIDEMANN, | 
Plaintiff, 
cs J mS . 

) 


Ve 





Ve 


JOHN S, VAN LOAN, ELSIE M. 






Nail atl asl — 


MR, JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT, 
By this appeal respondents John Van Loan, Elsie M,. Van 

Loan and Ivor Jeffreys, seek to vacate an order entered upon the 
amended petition of Lena Akerberg, directing them to account for 
rents collected during the statutory period of redemption, Her 
petition was filed in the Superior court in this cause, which was 
& foreclosure proceeding entitled Weidemann v, Anderson, No. 573653. 

Lena Akerberg's amended petition alleged substantially that 
she was the holder of a $500 bond secured by the trust deed foree 
closed in this causes that on February 28, 1933, Milton Johnson was 
appointed receiver to collect the rents and make disbursements with 
referenee to the property foreclosed herein; that on Aygust 10, 1936, 
a decree was entered confirming the master's report of sale and dise 
tribution, which said decree also ordered that a deficiency judg- 
ment for $33,253.98 be entered in favor of the plaintiff successore 
trustee, that “the Receiver heretofore appointed in this cause be 
continued with all the rights and powers heretofore vested in and 
conferred upon him" and that “all moneys collected by and accrued 
to the said Receiver until the expiration of the statutory period of 
redemption be applied *** toward the payment of the deficiency;" that 
“Yon the first day of September, 1936, John S. Van Loan and Elsie M. 
Van Loan presented *** their sworn petition in and by which *** they 





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asw moandot moglti .{fQi ,8S yuswidel mo Jedd youmao atdd at bozolo 
ddiw atusmeewdels erlem bes atmo ‘det $S0LL09 | of ‘sevioody Seditoays | 
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to bolweq Yrovudate odd 10 wottextqxe edt Litas rovkesos baa eas of 
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— 
stated to the court that they had acquired the equity of the 
property herein foreclosed and subsequently did redeem such 
property from the foreclosure sale *** and because of said redempe 
tion they asked the court for an order directing the Receiver, 
Milton Johnson, to turn over possession of said premises to them 
immediately;" that “by virtue of said sworn petition and statement 
of facts therein contained, namely, that a redemption had been made 
by said John 5S, Van Loan and Elsie M,. Van Loan, an order was entered 
on the aforesaid first day of September 1936 *** requiring the 
Receiver to surrender immediate possession to said John S,. Van Loan 
and Elsie li, Van Loan, and directing the said Receiver to file his 
final account and report within fifteen * # # days, said order of 
September 1, 1936, finding as a fact from the sworn petition of the 
said John S. Van Loan and Elsie . Van Loan that they had redeemed 
said property from the foreclosure sale heretofore held in connection 
with the above proceeding;" and that “in accordance with said order, 
said Receiver Milton Johnson, did on the 29th day of September, 1936, 
file his final report and account for the period from March 1, 1935, 
to September 2, 1936, and did also turn over possession of said 
premises to said John 5, Van Loan and Elsie M. Van Loan, by virtue 
of the order heretofore entered on the lst day of September, 1936." 
In her amended petition Lena Akerberg further alleged that 
an examination of the records in the office of the Recorder of Deeds 
of Cook county, as well as the files in this cause, disclosed that 
on July 31, 1936, the master, pursuant to the decree of foreclosure 
and sale theretofore entered in this cause, sold the property involved 
te one Ivor Jeffreys, to whom he issued a certificate of sale on the 
same day, which certificate was recorded August 14, 1936; that there~ 
after on May 4, 1938, there was issued to Ivor Jeffreys, purchaser at 
Said sale, a master's deed, which was recorded on May 5, 1938; and 
that said Ivor Jeffreys became the owner of said premises by virtue 


of said master's deed, 
The petition then alleged that no redemption of this 


4 
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dowe mesbex bLb yLineupeedwe baa beeolos10t alerted ytreqorg 

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‘blse to mokeeereog teva nud cas bbb brs edeek 8 nodmetqea of 
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aboot to tebt0:0f et to solTio edt at ebrose% ould 29 — as 
 tedd beeoloeth oeus⸗ eidd at e0ftt oxtd as LLow 28 _ ¢@inwos A009 10 
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recy. ae 
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-3- 
property was ever made by John S&S, Van Loan and Elsie M. Van Loan 
or by any other person or persons and "fhat a fraud was perpetrated 
upon this honorable court by the petition of John 5S. and Elsie li, 
Van Loan fraudulently representing to the court that they had re~ 
deemed said property from foreclosure sale heretofore held in the 
above entitled cause and that by virtue and because of said fraudu- 
lent representations to this honorable court, the order of the lst 
day of September, 1936, was procureds" that "because and by virtue 
of the fraudulent misrepresentation that said property had been 
redeemed by John S, Van Loan and Elsie Mi, Van Loan, the Receiver, 
Milton Johnson was on the 29th day of September, 1936, ordered to 
turn over the sum of One Hundred Forty-Five ($145.00) Dollars, to 
said John 8. and Elsie M. Van Loan and also the court was induced 
to order the balance on hand as shown by the Receiver's final report 
and account after the deduction of Receiver's fees and attorney's 
fees in the sum of Three Hundred Fifteen ($315.00) Dollars [paia] 
on taxes delinquent against said property, which said payments were 
made after foreclosure sale and contrary to laws;" and that "no 
report and account has been filed in this cause for the period from 
the 2nd day of September, 1936, to the 3lst day of October, 1937, 
the end of the statutory period of redemption as provided for in the 
order entered on the 10th day of August, 1936." 

The petition concluded with the prayer that the order of 
September 1, 1936, be vacated; that the Van Loans file within ten 
days their account and report for moneys collected by them from 
September 2, 1936, to October 31, 1937, when the period of redemption 
expired; that the Van Loans "reimburse this estate for the benefit of 
your petitioner and other bondholders similarly situated in this 
cause, the said sum of One Hundred Forty=Five ($145.00) Dollars, 
fraudulently procured from this court by order of September 1, 19363" 
that the Van Loans and Ivor Jeffreys or one or either of them "be 


directed to turn over to this honorable court the sum ef Three Hundred 
Fifteen ($315.00) Dollars, which this honorable court was induced to 


* 





| 
| 
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4 

pay on delinguent taxes as aforesaid, by virtue of the misrepresentation 
set forth in the petition of John 5. Van Loan and Elsie M, Van Loan, 
heretofore referred to;" and that “upon the filing of such account and 
the turning over of all the aforesaid moneys, that this court might 
enter an order distributing same to the parties so entitled to same, 
among which is your petitioner,” 

Respondents filed a motion to dismiss the Akerberg amended 
petition, averring that it stated "no cause of action" against them, 
that the trial court was without jurisdiction of either the subject 
matter of the petition or of said respondents, and that petitioner was 
guilty of laches, The court having denied the motion to dismiss, 
respondents elected to stand upon said motion, The order from which 
this appeal is taken directed “that John s. Van Loan and Elsie M. Van 
Loan and Ivor Jeffreys, or either of them, file with this court within 
10 days from the date of this order, their account and report for moneys 
received, collected or accrued to their benefit and disbursements made 
by them for the period from the 2nd day of September, 1936, the date to 
which the Receiver, Milton Johnson, has accounted, to the 3lst day of 
October, 1937, the end of the statutory period of redemption," 

Respondents’ theory as stated in their brief is "that the 
court was without jurisdiction and that petitioner was guilty of gross 
dtsches;" and that "the amended petition showed no cause of action 
against the respondents or any of them." 

Petitioner states her theory as follows: "“lhere all necessary 
steps have been taken to make possible the application of rents collected 
during the period of redemption, in reduction. of a deficiency judgment 
the right to said rents being established by the trust deed and the 
deeree, the discharge of the receiver and turning over of possession to 
redeeming defendants does not affect the right to have said rents 
applied on said deficiency, And where the order discharging the re» 
ceiver and turning over possession was obtained by fraud, and without 
notice, so far as the record shows, the rights established by the decree 
remained unaffected by said order fraudulently obtained," 


Was the order of September 1, 1936, removing the receiver 


JA - 
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motos Yo sass on bewosdle sets tieq bebusms edd” tend bas ‘Wyaedoat. 
“,medd to ys 10 aebaogeer ‘add Sentess 


7 


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bes cellos ajne1 to aolssoilags ont sidkecoq eadsm of sexed ood ‘ovad ‘egode 
daemybut yanetolteb B to moifoubor at .xottqmobes Yo bolteq ed? atu 
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‘mevieoot oid gakvomos Set * — ebro sad aot aenet : 


| 







jm 
and directing him to turn over the foreclosed premises to the ree 
spondents John S,. Van Loan and Elsie KX, Van Loan procured by fraud? 
That fraud was perpetrated on the court to secure the entry of this 
order must not only be conceded but it is admitted on the record, 
By their motion to dismiss the amended petition of Lena Akerberg ree 
spondents admitted all the facts well pleaded therein, But they argue 
in effect that the fraud indulged in by them is not the kind or char~ 
acter of fraud that may be held to vitiate the order removing the re» 
ceiver, We think that it is and that such order was void from the 
date of its entrys 

Just what is the situation presented? Ivor Jeffreys is an 
attorney, He was not a party to the foreclosure proceeding, He pure 
chased the property involved for $5,000 at the foreclosure sale and 
received the master's certificate of sale. The decree of /ugust 10, 
1936, confirming the master's report of sale and distribution, ordered 
a deficiency judgment of $33,253.98 entered in favor of the plaintiff 
successor=trustee, The decree also ordered that the receiver, who had 
been theretofore appointed and who was in possession, continue in 
possession of the premises until the expiration of the period of redemp= 
tion and that the net income received by him from said property be 
applied to the payment of the deficiency judgment, The receiver con» 
tinued in possession of the premises until he was ordered to turn over 
the possession of same to the Van Loans on September 1, 1936, This 
order was procured by the Van Loans by the fraudulent representation 
in their petition that they had redeemed the property from the fore» 
closure sale, Thereafter, at the expiration of the period of redemption, 
the master's deed was issued to Attorney Ivor Jeffreys, the purchaser 
at the foreclosure sale, which demonstrated conclusively that the 
property had not been redeemed by the Van Loans or any one else, The 
record discloses that Ivor Jeffreys as the attorney for the Van Loans 
procured the entry of the order of September 1, 1936, removing the re~ 
ceiver and turning the property over to the Van Loans, Upon the hearing 
on respondents’! motion to dismiss the Akerberg amended petition, 


| ( 


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| — pobre she only eetmeth od ‘noktom Vatiehnoqeet no — 


a+ ‘tedaetqok Te sobto ait eae 


















26 

Attorney Jeffreys, who represented the Van Loans as well as himself 

in the trial court in the instant proceeding and is the attorney for 
all the respondents on this appeal, made the following statement: 
"Counsel has introduced a petition here on the part of the Van Loans to 
turn the property over to them, upon which an order was entered that 
the property be turned over to them and that the receiver be dis» 
charged, *** Although I did not present that petition, I sat in the 
back part of the room, *** JI didn't present the petition but I heard 
it. I was in court." This statement was made despite the fact that 
the record shows that on the reverse side of the order of September 1, 
1936, removing the receiver upon the Van Loan's petition of the same 
date, appears the name “Ivor Jeffreys" as solicitor for the Van Loans, 
This being so it is fair to assume that Attorney Jeffreys not only pre~ 
pared said order but that he prepared and presented the petition upon 
which it was predicated, When that petition was sworn to by the Van 
Loans they knew that it was false since they had not redeemed the 
property. ‘when Ivor Jeffreys, their attorney, prepared and presented 
that petition, he knew that the Van Loans had not redeemed the property 
from the foreclosure sale, If they had, necessarily he must have known, 
Since he was the purchaser at the master's sale, and received the 
master's certificate and the money paid to redeem would have been ree 
ceived by him, 

When the petition of the Van Loans containing the sworn false 
and fraudulent allegation that they had redeemed the property was 
presented to the court, they thereby asked the court to take jurise 
diction over them and the subject matter of their petition, Had the 
true state of facts been presented to the court the Van Loans would 
have had no place in this proceeding, They induced the court by their 
fraudulent petition te take merely colorable jurisdiction over thom, 
Having done so, any order secured by them was a nullity, An order, 
judgment or decree obtained by fraud will be set aside by a court of 
equity at any time, Where, as here, the — to dismiss admits the 
fraud alleged in the amended petition, it is mandatory on the court to 


C: te 

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-7= 
vacate and set aside the order procured by fraud upon the court and 


the bondholders, In passing upon a somewhat similer situation in 


Reisman v, Central Mfg, Dist, Bank, 296 Ill. Apps 61, this court 
said at pp. 66 and 673 


"It is next urged by petitioners that a judgment or decree 
obtained by fraud will be set aside by a court of equity at any time, 
and where the motion to strike admits the fraud, it is mandatory upon 
the court to vacate and set aside the order thus procured, The 
petition herein alleges facts which constitute fraud and the authori~ 
ties in this state and elsewhere have consistently approved the maxim 
that fraud vitiates every transaction into which it enters and is 
applicable to judgments so procured. In Nelson v, Rockwell, 14 Ill. 
375, it was held that (p. 376) ‘a fraudulent judgment is void in 
equity as it regards the party defrauded, and cannot therefore pre— 
elude the exercise of equitable jurisdiction.! 


"In Elting v, First National Bank, 173 Ill, 368, it was 
said (p. 391): ‘When a judgment has been obtained by fraud, it is 


@ mere nullity, and it may be attacked on account of the fraud in 
a collateral proceeding, and equity has jurisdiction to cancel and 
set aside such a judgment,' 


"In Moore ve Sievers, 336 Ill. 316, the court (pe. 322) 
reiterated the rule as follows: ‘A court of equity has always the 
power to grant relief against judgments and decrees obtained by 
fraud and this power will be exercised to prevent the enforcement 
of a judgment or decree which is against conscience *** (Farwelj 


Great Western ——— Cog, 161 Ill. 5223 E rs 
173 Ill. 368; Atlas Nat, Bank v, More, 152 Ille 20 Ming ve 
e 267 Ill, 20.) 

"In 30 W 111 U. S. 640, the court gave its 
approval to this deetrine as follows: ‘The most solemn transactions 
and judgments may, at the instance of the parties, be set aside or 
rendered inoperative for fraud *** The Court of Chancery is always 
open to hear complaints against it, whether committed in pais or in 
or by means of judicial proceedings. In such casesthe court does not 
act as a court of review, nor does it inguire into any irregularities 
or errors of proceeding another court; but it will scrutinize the 
conduct of the parties, and if it finds that they have been guilty of 
fraud in obtaining a judgment er decree, it will deprive them of the 
benefit of it, and of any inequitable advantage which they have 
derived under it.'" 


It cannot be questioned that the decree of August 10, 1936, 
which directed the entry of the deficiency judgment, was a final 
determination of the right of the plaintiff successor-—trustee, to 
have the rents and profits which accrued from the property during the 
entire period of redemption applied toward the payment of said defi~ 
ciency judgment. This was true, even though the owners of the equity 
had actually redeemed the property. The order of September 1, 1936, 
removing the receiver and turning the possession of the premises over 
to the owners of the equity, did not, as respondents contend, authorize 


q — 

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*, 53 
eae ee 








Ben 

the Van Loans to convert the rents and profits received from the 
property to their own uses and purposes, That order could not have 
intended any such result, In our opinion, assuming that the Van Loans 
had in fact redeemed the property, the only effect of the order of 
September 1, 1936, was to supplant the receiver by the Van Loans as 
the collecting agency of the rents, obligated just as the receiver 

was to account for said rents to the successoretrustee for the benefit 
of all of the bondholders, 

Respondents invoke the doctrine of laches as a bar to the 
relief sought by the petitioner, Lena Akerberg, This doctrine has no 
application where the party acts diligently and within a reasonable 
time after the facts upon which the fraud is predicated have been dis- 
closed, “However great the lapse of time, laches is not imputable to 
a party who had no knowledge of a judgment against him and it is only 
required of him to be diligent in seeking relief after he has notice 
of it." Cummer_v, Cummer, 283 Ill. App. 220. We are in accord with 
the finding of the trial court that the petitioner was not guilty of 
laches, In any event parties who combine together, as did the re— 
spondents here, for the purpose of fraudulently procuring an order from 
the court, are precluded from relying on laches in a court of equity. 
(Messic » 292 Ill. Apps. 69; Greenman v, Greenman, 107 Ill. 404.) 

We are impelled to hold that the trial court did net err in 
entering the order from which this appeal is taken; that said order 
directing an accounting by respondents merely enforced the rights of 
the bondholders as established by the deeree of fugust 10, 1936; and 
that those rights remained unaffected by the void order of September l, 
1936, procured as it was by the respondent attorney Ivor Jeffreys upon 
the fraudulent sworn petition of the other respondents, 

For the reasons stated herein the order of the Superior 


court is affirmed, 
ORDER AFFIRMED, 


Friend, P. Je, and Seanlan, J., concurs 





| ry 
| 


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41222 


HAROLD PURNELL, g husineds 
as PURNELL STUCcO RECOATING/ 
A de 









OM CIRCUIT COURT, 





a 


roy A fe OK COUNTY, = 
i B/30ZLA. 389 


é 
MR, JUSTICE SULLIVAN DELIVEED THE OPINION OF THE COURT, 
This appeal by defendants, Thomas Jones and Ellen Jones, 


Ve 


THOMAS JONES and 


seeks to reverse a decree entered December 15, 1938, which ordered 
the foreclosure of a mechanic's lien upon the complaint of plaintiff, 
Harold Purnell, doing business as the Purnell Stucco Recoating Co, 
No brief has been filed by plaintiff, 

Plaintiff's unsworn complaint filed June 24, 1938, alleged 
that he is engaged in the business of recoating stucco buildings; 
that June 11, 1936, defendants “authorized, permitted and directed" 
Vance and Gormley to order from him the necessary labor and materials 
to “dash-coat" the residence and garage of defendants at 918 Belleforte 
avenue, Oak Park, Illinois; that subsequently he submitted a written 
proposition to defendants to do the work for $175, which they orally 
accepted, and that they approved and accepted the work when it was 
completed on July 18, 1936; that when the contract was entered into 
July 11, 1936, when the work was being done, when it was completed 
on July 18, 1936, and when the complaint was filed June 24, 1938, 
defendants were the owners in fee simple of the premises in question; 
and that on January 3, 1938, plaintiff filed a claim for a mechanic's 
lien and that he was entitled to a decree foreclosing his lien, | 

Defendants' answer denied that July 11, 1936, or at any 
other time they applied to plaintiff or authorized or permitted or 
@irected Vance and Gormley to apply in their behalf to plaintiff to 
furnish the necessary labor and material alleged in the complaint; 
that plaintiff ever submitted to them any proposition in writing 
covering said work; that on July 11, 1936, or at any other time they 


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ee 
orally or otherwise accepted plaintiff's proposition to do the 
work; that at the time said contract was alleged to have been 
entered into or at the time said work was alleged to have been 
performed they were the owners in fee simple of the premises involved; 
that they at any time accepted the work alleged to haye been performed 
by plaintiff in compliance with said contract or that they promised to 
pay $175 for this work; or that they acknowledged at any time that 
the work and material in question was furnished for them, 
The answer then averred that plaintiff did request defendant 
Thomas Jones to pay him $175, but that such demand was made upon him 
for the first time approximately one year after the work was done; 
that defendants refused to pay said bill; that on October 28, 1937, 
sult was instituted by plaintiff against defendants on this same claim 
before a justice of the peace in Oak Park, Illinois; and that after 
a full hearing on the merits in that action plaintiff took a nonsuit 
on November 19, 1939, because of his failure to sustain his claim, 
Plaintiff testified that "he had been acquainted with 
Vanee and Gormley for some time and had done business with them, 
and that in July 1936 Vance gave him an order to do the work in 
question on the premises in question and stated that he would pay for 
the work when the house was sold;" that “he did the work and that the 
reasonable price therefor was $175 and that he had not been paid for 
itj;" and that he “knew Vance was not the owner of the premises," 
On crosseexamination plaintiff stated “that he did not 
communicate in any way with Jones relative to the work until about 
a year after the work was completed, when he heard that the building 
was sold, and then by telephone asked defendant to pay and defendant 
refused;" that he “had never met Jones or talked with him or 
corresponded with him or contacted him in any way until said last 
mentioned time; that he made no inquiry as to Jones; that he did 
not investigate the title to the premises and did not know whether 
or not Jones was the owner of record of the premises when the work 
was done; that he trusted Vance and Gormley * * * that he entered 
the charge on his books against Vanee and Gormley; that he sent 


| ee — 
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‘gatb Ltd sae tat — poy — — as — aens 29016 
tasbasteb bas Yaq ot cna aaa snocgeled * * bLer , 








“essed wom don | kD bra, consent, edd 2 | edt te 
ane eit socte — — 
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-3- 
repeated statements of this account to Vance & Gormley in their 
names **#* that neither of the defendants was present at the time 
when he had his purported talk with Vanee relative to this work," 

Plaintiff introduced in evidence a certified copy of a 
deed to this property from Gladys J, Marx to defendants dated June 
26, 1936, and recorded in the office of the Recorder of Deeds of 
Cook County, July 22, 1936. 

William Vance, testifying in plaintiff's behalf, stated 
that “in 1936 he was a member of Vance & Gormley, real estate 
brokers;" that “he had known Thomas Jones, one of the defendants 
for some time;" that "he took Jones out to view the property in 
question and afterwards sold it to him;" that "the property needed 
restucco work and painting on the outside;" that Jones told him to 
have this work done; that he "talked with plaintiff Purnell in July 
1936 and ordered the work to be done and was to be paid for when the 
house was sold;" that “the work was finished by plaintiff on July 18, 
1936," and that “Jones bought the property for resale," 

On cross-examination Vance testified that Jones told him to 
‘have the work done when he and Jones were at the building and at that 
time Jones had not signed the contract for the purchase of the 
property; that “under the contract Jones was to place a mortgage of 
$5,500 on the premises;" and that he "told Jones that the FHA would 
not make the loan unless some restuccoing and repainting was done;" 
that "after Jones told him to have the work done Jones signed a con= 
tract for the purchase of the premises, which was dated May 23, 1936; 
that he "was not the owner of the premises but was the broker for ‘ 
one Marx3" that "the contract provided for a broker's commission to 
be paid by seller to Vance & Gormley *** in the amount fixed on the 
Chicago Real Estate Board's schedule of commissions;" that Jones 
paid him $200 on the contract; that on August 1, 1936, Jones paid 
him $100 more; that “on 'final settlement sheet' dated September 9, 
1936, on premises in question, defendant Jones received check for 


$643,25, brought to nim by Vance as the balance of the loan of 


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—— 





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wine 

$5,500 and defendant indorsed same and turned it over to Vanee for 

delivery to Marx;" that the witness "did not deliver said check to 

Marx but retained $60 of this check and delivered to Marx his check 
for $583.50;" that he and liarx had trouble as to the amount due the 
latter; and that he "kmew that Jones paid Marx an additional sum of 
$369.47 on Mareh 18, 1937, before he was able to obtain possession 

of the premises," 

During the course of Vance's testimony plaintiff identi— 
fied certain exhibits which defendants later introduced in evidence, 
The first of these exhibits was a statement sent by plaintiff to 
Vance & Gormley for $175 covering the cost of the work in question, 
Defendants! Exhibit 2 was their contract for the purchase of the 
property in which the price was fixed at $5,800, $300 of which was 
te be paid in cash and the balance by way of a loan of $5,500. 
Defendants! Exhibit 3 was the receipt given by Vance & Gormley to 
Jones for the $200 paid to Vance on the contract of purchase, This 
receipt recited that such payment was deposited on the purchase price 
of the premises "to be returned if contract of sale is not con= 
summated in thirty days." 

The following agreed statement as to the testimony of 
defendant Thomas Jones is quoted from the record: “He denied that 
he was the owner of the premises in question at or before the time 
the work in question was done; denied that he at any time had directed 
er authorized Vance to have the work in question done, or ever had any 
notice or knowledge that Vanee had purported to have the work done for 
defendants or as their agent; denied that Vance was his agent; he 
iatended to resell the place; he had been out to the place before he 
signed the contract and saw the condition of it; Vance stated that he 
would arrange for the mortgage with the FHA; at that time Vance told 
him that the FHA would require some stucco work to be done, to which 
Jones said nothing; that Vance told him he would have the work done 
but nothing was said about Jones paying for it or that it would be 
charged to Jones; that he knew the work was going on and saw the same; 
that he did not at any time inquire of Vance as to how Vance had 


y «thie 

“ot, eous¥ of tovo Si benasd bos omse beexvobat Jashusteb bas -00U ee 
od alyssa Dice reviled ton Sth” event ty ot tedt "pxtall of YrsviLeb 
Moods, eid xtsl of hovevifeb bas doedo eit to Od$ bornlayet tud xe 
edt sub jawems ont of aes olduont bar xual dus orf Sand "¢0e.€8$ r02 
to mye Lemottibbe as xteM bigsq eenol tart wend” on Yeds Bus qisdial 
sotazswacg ttatdo of olds asw on osoted .NECL ,8L dots ao YR, CES 

| *, coatmong odd Yo 

~Linebt Tittaislg yromtiess e'sernsY to sewoes od. gobi 

<Sonebive mi beorbownh setel edashneteb dotelw ettdiixe alesasd belt 
of Tittntelg yd tnee Snemetste s esw ettdicixe seedt to JetkT ent 
Moljeony ak dtow ent to deos ert gotitevon BYL$ sot Yolar10d ® eonsV 
edt to czsnoimg ort rot tostiaeo «tedd ecw S Shdldxd tesusbaoted 

aew dots to OOF ,008,20 te Doxlt ow optuy deld Hotedirmt ywreyory 
+002, 2% to msol s to ysw yd edmelsd odd has dese mh biag od ot 

o} yelmre & eons’ yd uevig iqteser edt asw € tididxd teinebnoted 
REST ,ezacipumy Yo Josténee est mo eonsY ot Staq 00Sf edt tot wOMOT 
eoli¢ seadourg odd ao betLeoqeb esw taemyeq dove tats bed toot JqLeves 
—E ton ei efee te Josainoo i beamisen adv ot" eoatuorg et 20 
"eysb yoked nt —X 

to ytomtiaes edt ot en dnowedsde beotgs gaiwolfet edTsoi9). ots 
sadt bhetaeb ol” . — ond mov? Setoup ek conobtsmod? dnabneteh 
emit onl sroted 10 ds moiveoun mt eeetmenq ed. to tonwo ext esi od 
| -betoatth bal omtd ye da od dade botnoh qenob anu motinenp xi tow dt 
| Wis bal rove to ,~smeb moiteoup ak atow eft eved oF: eoasY besktoddue 10 
x02 ouch ano ort eved of Sedtoqumg ext eons dt subelvoni a0 sottod 
| od, {inege eid 2aw coneV sacle betneh qnegs thedt as as adnabastel 
ail, oxoied scale old oF duo esd Hatt ect yonsiq-edd Lifeson of Dobson 
ed jast botste sensY ~ik to mokeiLbmog edd wea ris soauttios: ot 2 bong te 









blos gousY omit tadt. LAxl old sd.tw. egead 10m oid 402 osuasts: Bixow 

doldw, oF ,enoh od og tow ooowie emoR, stiupes Divew ABM odd tasit kat, 
1. aroH add evad binow or mid bLod, cogeV tant uatbdvon btse enol 
nl bluow t£ test.10.¢£ 102 gatyeq — * — * * 





~ je 
procured the premises to be restuccoed nor as to who did the work 
and said that he never received any notice of any kind from the 
plaintiff of his intention to do the work or that he had done the 
work or that he was looking to Jones for payment of the work until 
about a year after the work was completed, when plaintiff called him 
on the telephone and asked him to pay, and he declined to pay. He 
knew that Vance expected to resell the premises upon the usual 
commission." 

The only question raised by the pleadings and necessary 
to be determined from the evidence was that of agency. ‘When Vanee 
of Vance & Gormley, the real estate brokers, entered into the contract 
with plaintiff for the performance of the work involved, did he do 
so as the authorized agent of defendants? There is no evidence in 
the record that even remotely tends to show that plaintiff relied 
upon any relationship of agency between Vance and the defendants at 
the time that he entered into the contract with Vance ahd performed 
the work, 

According to plaintiff's testimony Vance, whom he knew, 
came to him, ordered the work done and said he would pay for it when 
the building was sold. Vance also testified that he ordered the work © 
done and that it was to be paid for when the building was sold, 
Jones's name was not mentioned by Vance to Purnell. Plaintiff testi- 
fied that he did not know Jones, had never heard of him and that he 
never had any business dealings with him. So far as plaintiff was 
concerned Jones was not in existence. Having made no investigation 
of the title to the premises he did not know whether Jones owned the 
property or had any interest in it, If he had investigated the title 
he would have found that Jones was not the owner of record of this 
property when the contract was made with Vance or when the work was 
completed July 18, 1936, the deed to defendants not having been 
recorded until July 26, 1936. Purnell charged this job on his books 
to Vance & Gormley and to them alone and he thereafter sent out state= 
ments to them requesting payment and to them only. He stated that he 


| 





f ‘ah ess at 

Aꝝou ond bth ow oF 2m tom Soossptees ed Of aselmong edt homo 
add mort bata ys 7 colton yste bevieoe: seven od galt hap: pus 

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fitas dsov of} Io Jusmysq 182 eonol of guideol aaw od tansy so Agow 
mis beliso Viidmtelg aedw ybetelques eaw Axow ort sotto vex sissies 
ol sYeq of bonkLosd on ins .Yaq of mix Denies dus enadgeled edt s0 
isueu oid moqu —— eit [Iez0or of hotoeque eons tendt wend 

*, soles Lauoo 

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sonsY wedi .youege lo dadd esw ennobtve ert mort bentuzeteh od,ot 

— wid oink doredno ,atelowd edatee Loot onit ,volmued # eoasY ‘Yo 
ob oxi BLD ,bovioval Axow oft to sonametieq edt sol Titvatelg dttw 
ai somebive on ef exedT fadnshoeleb to Juegs bosinodine ont 2802 
boifet Tlidmisiq tadd wode of shoes yLodoues move tact brooen od⸗ 
de etusbretsb edd bos someV aeowded yomege Io qidesottelet yas moqu 
bemiotieg bids comsY détw toatinos edd o¢ah bexetme ed dad ents, ests 
qwecal ext wodw yous Yuombdaed e'Tibtatelg of gatbrooobs: a) to 
nedw #2 102 yeq blvow ef bise bas enob Ax0W edt berebxo ymbdco? ema 


gow acd berebse of dado boltidees coals gous’ . ~bkoe-aew gakbitud edt 


bios esw gathLind add neste 102 dkaq ed ot eaw th dadd bas-eneb 
~iined Yiivatelt  Llemu of eons’ yd denoitvaem tom eow-omsa eteenal 
od Said: be mi 20 breert seven bad yaeno’ word Jon bib od tach Dok : 
-gaw Tidstate[q ea tet 08 embdodddw, ageifsod eroutend yas had. roves 
 moltsyizaeval om bam gakvell .esnedaixe ob Jom-eaw! raemet cham peeune 
edd bemve senot tessesw worl Jom dah od 20etmeng (ett od: olaun edt 2 
efstd eld bedsgivaovat bad od TT) ath abteowedat yas dad 10) yémegoTs 
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valood @£i no dot eldt boguado! Lehwt .BECr 4OS WEN! Ltda bobrooe1 
wovase 340 dmoz <ottsoresy on bab enols madd Od bai’ yolmtod’ 2 epasV Os 
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6 
trusted Vance & Gormley and that he did not communicate with Jones 
in any manner “until about a year after the work was completed," 

The only evidence in the record upon which plaintiff 
relied to establish the fact that Vance was the agent of Jones in 
this transaction was the testimony of Vance that when he took Jones 
out to look at the property the latter told him to have "this work 
done," At that time Jones had not entered into the contract for 
the purchase of the property and, even after he had signed the con= 
tract of purchase, the consummation of the deal was contingent upon 
the acceptance by the then mortgagee of payment of the outstanding 
mortgage indebtedness in a reduced amount and the procurement by ~ 
defendants of a FHA loans 

It is clear from plaintiff's own testimony that he told 
Mr. Vance as the agent of Vanee & Gormley that he trusted Vance & 
Gormley, that he extended the eredit to Vanee & Gormley and that he 
looked solely to Vanee & Gormley for payment, We think it was only 
as an afterthought and for some reason not apparent from the evidence 
that more than a year after the work was completed he sought to 
impose this obligation upon defendants, In our opinion plaintiff 
failed utterly to show any liability on defendants' part. 

The decree in this cause, which awarded a sale of the 
premises in question, was entered without notice to defendants er 
their counsel and in their absence on December 15, 1939, and defend 
ants' attorney had no knowledge of its entry until January 10, 1940, 

On March 8, 1940, defendants presented a verified petition 
for leave to file a bill of review on the ground of "newly discovered 
evidence coupled with fraud." Said petition contained the following 
among other pertinent and material allegations: 

"And your petitioners further represent, that since the 
rendition of said deeree, your petitioners have discovered new 
matter of consequence in said cause, and particularly, that prior 
to the filing of the said claim for lien, the said plaintiff had 
executed and delivered to the Chicago Title & Trust Company a 


general waiver of the lien prayed for in said bill and awarded by 
said decree; that said waiver was addressed 'To all whom it may 


concern;' that a photostatic copy of waid waiver of lien is hereto 


| rt ~~ 
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| pas 
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wiwsq ‘adnisbnoleb ao Wiltdstt yas — * * — 





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— DOORS 















27 
attached, marked Exhibit A and hereby made a part hereof, 


“And your petitioners state that they did not know of 
said waiver of lien and could not by reasonable diligenee have 
known of it, so as to make use thereof in the said cause, previous 
to and at the time of the pronouncing of said decree, That your 
petitioners had never heard of the plaintiff herein at any time 
until one year after the work was completed, when plaintiff 
demanded payment of them; that several months thereafter, plain- 
tiff sued petitioners and after hearing, took a nonsuit. That 
thereafter, on January 3, 1938, plaintiff filed his claim for lien 
in the office of the Clerk of the Circuit Court of Cook County 
but that no notice thereof came to petitioners until, to-wit, the 
25th day of January, 1938, by opinion of the Chicago Title & Trust 
Company. That thereupon defendants served a thirty day demand 
pursuant to statute, on plaintiff to file his bill herein; that 
prior to said Chicago Title & Trust Company opinion, petitioners 
had never had any notice of any claim for lien by plaintiff, 


"That petitioners were informed on, to-wit, Miarch lst, 
1940, by their atiorney, that he had discovered that a waiver of 
said lien had been executed and delivered by plaintiff to the 
Chicago Title & Trust Company, And your petitioners are advised 
that the said new matter is conclusive in nature and effect upon 
the rights of the plaintiff hérein." . 


Exhibit "A" referred to in the petition is as follows: 


“July 29, 1936. 
"TO ALL WHOM IT MAY CONCERN: 


“Whereas, we the undersigned, Purnell Stucco Recoating 
Cos, have been employed by Thomas Jones to furnish labor and 
material for stucco work for the building known as 918 Belleforte 
Ave., Oak Park, Ill. 


"NOW, THEREFORE, KNOW YE, That We the undersigned for 
and in consideration of One Hundred and Seventy-five and no/100 
Dollars, and other good and valuable considerations, the receipt 
whereof is hereby acknowledged, do hereby waive and release any 
and all lien, or claim or right to lien on said above described 
building and premises under the Statutes of the State of Illinois 
relating to Mechanics' Liens, on account of labor or materials 
or both, furnished or which may be furnished by the under signed 
to or on account of the said for said building or 
premises, 


"Given under hand and seal this 29th day of July 
A. D. 1936. 


"PURNELL STUCCO RECOATING CO, (Seal) 
"H, D. Purnell (owner) 
"Exhibit 'A',® 
The trial court peremptorily denied defendants' petition 
for leave to file the bill of review, We think that the court 
erred in so doing. Since the defendants were not guilty of laches 


under the facts alleged in their petition, they should have been 


allowed to file their bill of review. The waiver of lien, which 
was set forth in and made a part of the petition and the bill of 


2 


* 
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evotvery .seneo bise pag gy Ml tngner se ally Po gh ng Bciye 


wey 7 e9e1t99b bise To enor edt to omis 
— ts atoved NAnts — ped teved ber Teltett tee 


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— 10% misio eid bolt? Yiivately — —— 
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& oO 
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— BIC ea moms guibiiod edd tye bet 2 * 
efit — * x20 ar 8VA 


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itud bise so? — bise sdt to oat trv * ot 


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“DERE, Ook. 
(Its0e@) 00 DuTTAOOSA * —— pete 
Fat & (usavo) ffLeausi ad. ,H* * * 
F 1 saan 
Hott it eq ‘atushaetes betaeb ‘trod quo reg tures isbst eat 
duro edt dedd — ow swotver Tet eat An ot — —— 


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F 4 SOT Lae 2. us Se — 


olin. cuert ae revitow ed. volves 10 J Ltd ateds- oxtt-es bev * 





28 

review, was executed ines sual and delivered by plaintiff to the 
Chicago Title & Trust Company on July 29, 1936. This new evie 
dence was conclusive and constituted a complete defense to plain~ 
tiff's claim. The waiver was general and ran "To all whom it may 
concern," It contained no conditions or limitations. It expressly 
described the lien involved here and expressly waived it. It named 
the parties and specifically described the premises in question, It 
was under seal and acknowledged payment in full of the specific sum 
claimed in this case, This waiver furnished an absolute defense to 
any claim plaintiff might have had against the defendants or anyone 
else by reason of the performance of the work upon which the instant 
Claim is based, Although the trial court erred in refusing to 
grant defendants! petition for leave to file their bill of review, 
it would serve no useful purpose to remand the cause on that 
account, 

For the reasons stated herein the decree of the Circuit 
court is reversed and plaintiff's complaint is dismissed for want 
of equity. 

DECREE.REVERSED, PLAINTIFF'S 


COMPLAINT DISMISSED FOR WANT OF 
EQUITY. 


Friend, P. Je, and Seanlan, J., concur, 


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het 


STATE OF ILLINOIS ny NIN 
\ \ * 
APPELLATE COURT aN Cary 
FOURTH DISTRICT (A)! 4 
May Term, A. D. 1940. : —* 
Term No. 1 Agenda No. 1. 


— 


Vine _ — Ve, 


JAMES MACHAC end/ MARY, MACHAC, ores 


a 

— — & 

Appellees } Appeal from the 

| J 
vs. é fcirewit Court of 

/) 
i) 
) 
) 


— St — County. 


EAST ST. LOUIS & INTERURBAN 
WATER COMPANY, 


% 


Bf F , LI Bi 
20 & & @445 QeF & 


2. py ati, Ea A f i fy! 


Appelient. 
Dady, J. 

Plaintiffs recovered a judgment for $476.00 and 
costs on a verdict of a jury in a tort action ceoinst-d@fendant, 
from which judgment defendant appeals. 

Plaintiffs owned a brick house and lot in East 
St. Louis, abutting on a public alley. In March 1938, defendant 
installed a water main in and slong this alley, and in so doing 
dug a trench about twenty-four inches wide and about five feet 
deep. The inner edge of such trench was about six and a half 
feet from the nearest wall of such house. 

The complaint charged that in digging such trench 
the defendant carelessly, negligently and improperly used and 
operated heavy power machinery so close to such house that the 
operation and vibration of such machinery caused the house to 
vibrate and the walls and ceilings thereof to be cracked and 
that the reasonable cost of repairs was $3,000. 

By its answer the defendant acknowledged digging 
the trench, but denied any negligence, denied cousing any in- 
juries and denied that the reasonable cost of the repairs was 
$3,000. 

The first contention of the defendant is that 
the plaintiffs did not prove by the greater weight of the evi- 
dence that the defendant was negligent, — that the "over- 
whelming preponderance of the evidence is in favor of the de- 


fendant on the question of any danages to this building by the 








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operation of this machine." 

The trench was dug by means of a ditching machine 
run by a gas engine. One witness for the plaintiff testified 
that when the machine was working at the place in question it 
ran into some buried railroad ties and "the ground was shaking 
just like an earthquake"; another witness who lived across the 
alley testified that when it struck such ties it "shook the 
(his) house," that he ran outside and saw the machine stop work- 
ing and then start again and "it just shook everything around 
there"; another witness testified that at the time the machine 
struck such ties he was standing about five feet from the machine 
and “when it hit the ties it jarred the ground all around"; 
another that when such machine hit the ties there was "plenty 
of vibration"; another that “when the scoops would hit the ties 
the machine shook and shook the ground" and he felt the "shake" 
when he was about twenty feet from the machine; another that 
"when the machine pulled the ties out the ground would shake 
all around." The plaintiffs and a sister of one of the plain- 
tiffs testified that at the time in question they were in the 
house and felt the house shake and the dishes rattle. Ten 
employees of the defendant testified that at different times 
they were in some way connected with the work in question; that 
there was no vibration at all and no railroad or other ties 
where the ditch was dug. 

Several witnesses testified that before the ditch 
was dug the walls and ceiling of the house were intact, but 
were cracked after such digging, the cracks appearing within 
three or four days. 

Defendant contends that it appears from certain 
photographs "there are no cracks on the wall of that building." 
We have examined the photographs and do not find them at all 
helpful in passing from the question of whether or not there 
were cracks in or on the walls. 

The truth of all this testimony was, of course, a 
question for the jury and we cannot say that the verdict is 
manifestly aeainst the weight of the evidence. There was ample 


evidence to justify the jury in finding the defendant was 





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negligent, and that the house of plaintiff was injured through 
such negligence. 
The next contention of defendant is that the court 
erred in the following rulings: 
"Q. Would you say that any of these 
cracks in this house were ceused 
by natural settling after twenty 
some odd years? 
"MR. FARMER: I object. That would be 
a conclusion of the witness and 
invades the province of the jury. 
"The Court: Objection overruled. 
To which ruling of the Court counsel 
for the defendant then and there 
“ excepted. 


"Q. Would you say thet these cracks were 
caused by natural settling? 


tA. No. I don't think so because the 
house was there so many years and 
it was all right. 

"Mr. Farmer: I move to exclude that 
enswer as incompetent and improper 
end being a conclusion and invading 
the province of the jury. 

"The Court: Motion denied." 

The brief of plaintiffs does not give the name of 
the witness being examined, and does not refer to any page of 
the abstract or record, es should be done. 

It will be noted that although the court overruled 
the objection to the first question, there was no answer, so 
there was no harm in the ruling. 

There was no objection to the second question. If the 
question was objectionable, objection should have been made 
pefore the witness replicd. In our opinion the motion to 
exclude the answer should have been allowed, as the question 
as to what caused the cracks was en ultimate fact to be passed 
upon by the jury. However, considering the wnole record, we 
do not consider this sufficient to justify a reversal. (See 
Schneider v. Manning, 121 I11. 376, 386, which is one of the 
cases cited by defendant.) 

The next and last complaint of defendant is that the 


court erroneously permitted plaintiffs to prove the damages by 


showing the cost of repairs, and erred in giving the jury an 





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instruction thot the measure of damages was the reasonabie 
cost of tie repairs. Only one witness testified on the sub- 
ject of damages, and his figure was the same as the amount of 
the verdict. Defendant contends thet the measure of damages 
is the difference in value, if any, of the property before and 
after the injury. Defendant cites Peck v. Chicago Rys. Co., 
270 Ill. 34 and many similar cases in support of his conten- 
tion. We do not consider any of these cases in point on the 
facts. Each of such cases was a condemnation case, or a case 
relating to some public improvement, and in no one of such cases 
does it appear that there was any charge of or proof tending to 
show negligence as in the case at bar. In the Peck case it 
was said "The declaration makes no charge of negligence or 
complaint as to the manner in which the improvement was made *¥**, 
The action of the city was not wrongful or illegal. There is 
no complaint of went of skill or unreasonable delay in the 
performance of the work." We believe under the pleadings and 
facts in the case at bar the measure of damages was the 
reasonable cost of the repeirs necessary to restore the pro- 
perty. (McDonell vs. Ry. Co.,.208 T1l. App. 442.) 

The court did not err in the admission of evidense 


or in giving such instruction. 


IP ULL Le[0) 


OCT 28 1940 
Mauke GP Walbdo- 


CLERK OF THE APPELLATE COURT 
FOURTH DISTRICT OF ILLINOIS 


AFFIRMED. 





41228 


JCSEPH BLUME, TERES 
and CHRISTINE HANS£R, 





't SUPEAION COURT, 


\ wi 
07 TA. 5407 


MR, PRESIDING JUSTICE O'CONNOR DELIVERRD THE OPINION OF THE COURT, 


Vs 


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Plaintiffe, the holders of certificates of beneficial inter- 
est in a trust, brought suit against the trustee and trust managers 
to enjoin the sale of the trust property and for the removal of the 
trust managers, Defendants’ motion to etrike the complaint was sus- 
tained, the suit dismieeed for want of equity and plaintiffs appeal. 

The allegatione of the complaint, as amended, are that in 
1926 a lien of a trust deed, securing an indebtednese of $375,000, was 
foreclosed an4 the property sold under the decree to a bondholders’ 
committee; that aftervard there was a plen for reorganization pur- 
guant to whieh the Normandy fiall Building Liquidation Truet was 
created and the American Nietional Sank 4 Trust Company named as liqui- 
Gating trustee, Certificates of beneficial interest were issued to 
the former bondholders, plaintiffs being the ownere of 1700 unite of 
a total of 575,300 unite, 

The trust agreement provided that the trustee should act 
upon the direction of the three trust managers who were made defend- 
ants and who had the actual management and control of the property; 
that they might Gireet the trustee to dispose of the property provided 
that not less than 20 days’ notice be given to the holders of the 
beneficiel unite. The agreement further provided that the property 
could not be sold if the holdere of more than 35% of the unite ob- 
jeeted to the proposed sale, 

It was further alleged that Charles Hi, Albers, ae receiver 
for the Bain banks, wae the owner of more than 35% of the unite; that 
defendant, A, A, Mueller, was an employee of the State Auditor who had 



























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supervision of the liquidation of the Sain banke which were then in 
process of liquidation; that about June 22, 1959, Margaret Merrissey 
offered 2100,000 fer the preperty, and upon iaformation and belief it 
wae Slleged that she was acting as nominee ‘on behalf of certain 
persone whose namee are unknown to the plaintiff.” That the trust 
managers agreed te 40 everything in their power to consummate the sale 
“at a price of £100,000 even though they had previous to that time 
received other offers for the property ranging from $110,060 to 
$120,000," which offers had never been submitted to the oxners of the 
unite although ‘the Trust Managers full well knew that if the property 
were offered freely for sale among brokers and persons interested in 
property of euch type, offers of more than £100,000 therefor could 
have been readily procured.* That the trust managers, about the time 
they received the offer from Margeret Morrissey, directed the trustee 
to notify the holders of the unite of the proposed sale; that Mueller 
recommended to Albers, the receiver, that the propored eale be ac- 
cepted and that Albers should not file any objection to it; that 
plaintiffe, as owners of units, were notified of the proposed sale 
and being Giesatisfied “sought out other purchasers” and procured an 
offer from Lueille Rh, Wolff to purchase the property for {106,000 cash, 
which offer was submitted to the trustees; that thereupon Mueller 
filed with the trustee, objection to the proposed sale to Margaret 
Morrissey, signed by Albere, the receiver, as owner of sore than 25% 
of the outstanding unite and as a result the sale to Margaret 
Worricsey wae abandoned and notice of the proposed sale to Lucille &, 
Wolff for $105,000 was sent by the trustes, at the direction of the 
trust managers, to the holders of the units, but that such submission 
was "a mere sham in that the Trust Managers already knew that A, A, 
Mueller had induced Charles NH, Albere to dissent from said last 
mentioned sale and in that said A, A, Mueller did induce Gharles #, 
Albers as Neceiver to file a written diesent from the proposed sale 
at $105,000 even though they had been willing and it was their in- 




























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tention to sell the property at a lesser price te “argaret forrissey, * 
and that the sale te Lucille 4, Wolff was thereupon abandened, 

That shortly thereafter, the truet managere submitted to the 
trustee another offer by Margaret Morrissey to purchase the property 
for $108,000 and directed the trustee to enter into an agreement to 
sell pursuant to the offer ané caused the trustee to notify the holdere 
of unite of the proposed sale “that such new offer was submitted and 
such agreement war made in spite of the fact that no further effort 
had been made by the Trustees to secure competitive bidding from 
Lucille KR. Wolff or from any other person; that “the Trust Nanagere 
are still acting pursuant to a secret agreement with the persone for 
whom Margaret Morrissey is acting ae nominee, to deliver the property 
te such persons at the cheapest price possible* and that Mueller in- 
@ucead Albers, receiver, not to file any objection to the proposed sale 
for $106,000, "That the plaintiffe could procure offers for said 
premises at a price in excess of $108,000 cash, but that it would be 
idle for them to procure and subsait any further offer because the 
Trust Managers have secretly agreed with the principale of Margaret 
Norriesey not to sell the property at all unless it is sold to euch 
principals; and that as a watter of fact the fair cash market value of 
the property is not less than §135,000, * 

The allegations of the amended complaint charge defendants 
with fraud in the proposed eale of the property. In Haskell v. Art 
Institute of Chicago, 304 Ill. App. 395, in passing on the e#ufficiency 
of allegations where the charge made war similar to the charge in the 
instant case, we said: “In 10 A. GC. L. p. 415, in Giseuseing the 
sufficiency of the allegations of fraud it is said: ‘An exceptionally 
high degree of certainty in the allegations of the bill ie required in 
these cases where the cause of action is based on fraud’; that general 
averments of fraud are wholly inadequate, ‘In making allegations of 
fraud, good pleading requires that the plaintiff should state spe- 
cifically the inculpatory facts in order that they may carry their own 


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conviction of fraud and in order that the wrong-doing may thereby be 
made more clearly to appear.’ in Dickinson v. Dickineen, 505 ill. 521, 
the court eaid: ‘A general allegation of fraud, however etroeng in ex- 
pression, is insufficient. The bill should point out ané state the 
particular facts and olroumstances relied on as constituting the 
fraud,' No general rule can be laid down as to when it is sufficient 
to plead an ultimate fact and what allegations are eufficiently 
specific, but the facts in each case muct be considered. * 

In the instant case we think the allegations are clearly in- 
sufficient. It is alleged that when Margaret “orrissey offered to 
purchase the preperty for $100,000 and the beneficial owners were 
notified that an offer of $105,000 had been made by lucille A, ¥olff, 
Albers, the receiver, who owned more than 35% of the units filed ob- 
jections to the proposed sale and it wae abandoned, and the beneficial 
owners were then notified of the Wolff offer, Objections were filed 
to this sale and it was abandoned because Margaret Morriesey had of- 
fered 3108,000 and the beneficial owners of the unite were notified of 
this fact, all clearly showing that the trustee and the managers were 
trying to get the best offer they could for the property. The al- 
legationsa of the complaint, that offers had been made for the property 
from other persone, ranging from $110,000 to #120,000, are entirely 
too general and insufficient, 

Moreover, it is clear that if plaintiffe had called te the 
attention of the court that anyone would offer more than $108,000 for 
the property, the sale would not be coneummated, But there is no al- 
legation that plaintiffs a414 anything in this reepect, 

The decree of the Superior court of Cook county is affirmed, 

DECREE AFFIRMED, 
Matehett, J,, and MeSurely, J., coneur, 





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41257 
ROMAN KOPPERT, 





} ; 
) ‘ PROM 
v. — — 
} CIRCUIT COURT, 
CITY OF CHICAGO, a Municipal ) 
Corporation, SOOK COUNTY, 


Appellant, 


307 IA. 54]' 


MA. PRESIDING JUSTICE G*CONNCR DELIVERED TRE OPINION OF THE COURT, 

Plaintiff brought an action to recover damages for personal 
injuries claimed to have been sustained while he was ériving hie 
automobile vest on fast 95th street, in Chicago, ‘The automobile ran 
into a hole in the street, as o reeult of which plaintiff wae injured, 
There wae a jury trial, a verdiet and judgment in plaintiff's favor 
for 37500 and defendant, City of Chicago, appeals. 

The only point made by defendant in this court is that 95th 
street, at the place in question “was part of the eystem of State 
highways, and was maintained by the State of Illinois; that the el ty 
owed no duty to maintain" the etreet and therefore wae not liable. 

The law is clear that where a street * a eAry is taken over as a part 
of the highway system of the state, the city is not liable for failure 
to keep the street in repair. Tapscott v. City of Chicago, 501 Ill, 
App. 522; Live Stock Mational Bank v. Richardson, 303 Ill. App. 445, 
In the instant caee there is no contention te the contrary but plain- 
tiff contends there is no evidence in the record that 95th street, at 
the tine and place of the accident, was a Federal Aid Route and taken 
over-by the state. The evidence shows that 95th street was a well 
traveled, busy street in Chicago, with street lights, signs, water 
maine, street care and the customary red and green etop lights near 
the place of the accident. "This was prima fasie evidence that it 
was a city street." Tapseett v. City of Chicago, 301 Ill. App. 522, 

Defendant, to maintain its contention that the street at the 
time of the accident, June 1, 1927, had been taken over ae a part of 
the state system of highweys, offered in evidence two deeunente, each 





Pre el $08. Cae ae 


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<2. 

Gated December 18, 1936. One is addressed to Mayor Kelly of Chicago, 
and signed by Ernet Lieberman, “Chief ‘ighway Engineer, Acting Supt, 
of Highways,“ in which it i# eaidé that on December 1, 1951, a map was 
gent to Colonel Sprague, Commissioner of Public “erke of Chicago, 
showing extensions of "State Bond Issue Routes" in the City of Chicago 
and that ‘There have been a number of changes and additions to the 
State Bond Iscue and Federal Aié Koutes since that time. Decisions 
are being sent you, with this letter, showing the present lecations of 
all State Gond Iseue and Federal Aid Routes in the City of Chicago, 
These decisions supersede the information contained on the map ac- 
companying the letter of December 1, 1931.*% The other ie a document 
which purporte to be signed by "F. L, Smith, Director" on what pur- 
ports to be a letterhead of the “Department of Public Yorke and 
Buildinge - Division of Highways - Springfield, Illinois" and is ae 
follows: ‘Federal Aid Route Ho. 120 In the City of Chicago - The bee 
partment of Public worke and Buildings announces that the following 
Geecribed location is now the location of Federal Aid Aoute Ne. 126 in 
the City of Chicago. - Description of Route, 

"Beginning at the west limite of the City of Chicago on 95th 
Street and extending in an easterly direction along 95th Street to the 
intersection with South Chicago Avenue, * 

Upon objection to the admission of these documents by counsel 
for plaintiff, the court announced that the objection would be denied 
“until such time as 1t may be connected up,” - that defendant produce 
more evidence to show that the street had been taken over by the state, 
No further evidence having been produced by the city, the documents 
were excluded, 

Counsel for defendant say: “The legislature has placed the 
exolusive control and jurisdiction over Federal Aid Routes in the 
State," and refer to pars. 292, 297 and 298, chap. 121, Til, Rev. 
State, 1929, 

Par. 292 provides: “The system of “tate highways shall com- 





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——— ————— 












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“eet at wate Deh senaber ‘neve moh ws kon 








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* 


w= 
prise the following reads: *** 

*(4) All highwaye constructed, or authorized to be con- 
structed, by the State and Federal governments, and known age ‘Federal 
Aid Roade;* *** 

*{10) *®* GSueh highways shall be known age ‘State Highways, '* 

Par. 297 provides: “when roads are to be taken over by 
etate. 

"See. 7. The highways designated in this Act as State highe 
ways shall be teken over from the several *** cities, *** by the be- 
partment of Public Works and Suildings, ae provided in eaid Acts, and 
these parts of said State Megunye on which no durable hard-surfaced 
improvements have been started or completed under the provisions of 
the Acts designated in this Act may be taken over by the Department of 
Publie Works and Buildings in its discretion, as rapidly ae the ap- 
propriations made for repairs, improvement and maintenance thereof 
permit, provideé the Department shall first take over the “tate Sond 
Issue Roads, Sefore any highway, or part thereof, on which no durable 
hard-curfaced improvements have been started or completed under the 
provisions of the Acte designated in this Act, forminga portion of the 
State highway system, is taken over the Department of Public Worke and 
Buildinge shall notify in writing the commissioner of highways of the 
town or road district, the County Superintendent of liighwaye, or the 
mayor of the city, or president of the village, as the case may be, of 
ite intention eo to do, and of the date when it will arsume the main- 
tenance and care thereof. thenever any part or portion of any high- 
way which is « part of the State highway system and lies and is 
situated within the limits of any city, *** is taken over, the tepart- 
ment of Public Yorks and Buildinge shell have exclusive jurisdiction 
and control over only that part of such highway which the State has 


constructed ,or which the local authority has constructed and which has 


deen taken over by the State, and for the maintenance of which the 
State is responsible, * 





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And par. 298 provides: "When « part or portion ef the high- 
way shall heave been taken over it shall thereafter be constructed, 
re-constructed, repaired, lsproved and maintained by the State in 
accordance with the provicions of thie Act, * 

we think the two documente offered by defendant as evidence 
that 95th etreet had been taken over by the state were entirely in- 
sufficient to show a compliance with the statute, And this too, 
even if we assume the decuments were original and not carbon copies, 
as counsel for plaintiff contends, there is nothing in either of them 
which showe the state intended to take over 98th etreet, nor le any 
time mentioned when the state “will assume the maintenance and care" 
of the atreet as required by par. 297. Live Stock Nat, Sank v, 
Richardson, 303 Ill, App. 445. 

The judgment of the Circuit Court of Cook County is affirmed, 

JUDGMENT AFP IRKED, 
Matchett, J,, and MeSurely, J,, coneur, 








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41281 


PULTON ©. BUREE, ) — 
App neg “FRG 






v. COURT, 
MAHGARET LEE SURKE, Y) zs ™ GOOK * Ree 
Appellant. ) 3071 L.A , 541" 
WR, PRESIDING JUSTICK O'CONNGN BELIVZERED THE OPINION OF THR COURT, 

Rovember @2, 1935, plaintiff filed his verified complaint 
againet hie wife, the defendant, praying that a writ of injunction 
iesue against defendant enjoining her from taking the four year old 
son of the parties “out of the State of Tllinois and out of the 
jurisdiction of the Courte of Cook County, Tllinois* without first 
obtaining permission of the court eo to do. On the same day the 
court entered an ox parte order as prayed for, a summons issued and 
was served on defendant. becember 12 following, defendant by her 
counsel entered her appearance and on December 19, filed her verified 
anewer to the complaint. 

The material allegations of the complaint, #o far an it is 
necessary to state them here,are that the parties were husband and 
wife living in Cook comty, Illinois, and had been living there nearly 
all]. their lives; that a son was born to them who was four years old 
Mareh 19, 1938; that plaintiff had conducted himself properly teward 
hie wife but that she indicated she wished a divores from him; that 
for the part aixty days defendant had been in California with her 

relatives and when plaintiff refused to send the child to defendant 
in California, she returned to Illinois for the sole purpece of 

taking the child out of the Jurisdiction of Illinois and threatened 

to establish her residence in Galifernia or Nevada where ehe would 

get a diveree without legal residence, her reeldence being in Tliineis, 
and on grounds not recognized in Illinois; that if ehe took the child 


te Californias or tevada as ghe threatened te do, she would there seek 
the custody of the child from courts of these states; that af plain- 


SHAVE .a MOTIUY 


xnuoo — | 


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-2- 

tiff brought euilt in Califernia or Nevada he, on account of financial 
Cireumstanses, would be unable to go there to protect his rights; that 
he hed no adequate remedy exeest in a court of equity; that plaintiff 
haf offered to permit 4efendant te take the child to California for a 
winit if she would agree to return him to Cock county, whieh she re- 
fused to do, 

Sefengant in her anewer séeitted she wae and had been a 
resident of Tllineie; denied plaintiff had conducted himself properly 
toverd her tat on the contrary he “by hia conduct created an Incompati- 
ble relationshiz" which resulted in theis separation, “he admite she 
had been visiting in California for about sixty days and had returned 
to Tllineies for the purpose of taking the child to California beeaure 
plaintiff had failed te send the child to Ker as he had promised; that 
the child head been 111 and ashe wanted to have him under her care in the 
Climate of California which would be beneficial to him. Ghe denied che 
hed threatened to eatabliah her resigence outeide of Tllinols and ob- 
tain a diverce from plaintiff; that the parties on numerous occasions 
had agreeaG thet in case of a permanent separation they would divide 
the oustedy of the ehild between them, and that she would be staying 
in California with her mother at the latter's home, 

Nething further appears to have been Gone in the case for 
nearly & year until Keveaber 9, 193¢, when an order wae entered by 
agresment of beth parties that the injunction order be modified so that 
pleintiff should have oustedy of the child until Veeesber 15, 138, 
with the privilege of éefendant seeing and vieiting the child at reason- 
able times, and that Cecember 16, 1838, the eustedy of the child would 
be given to defendant and she eight take the child te California and 
return kin to Aiver Forest, Tllinols, wiere the parties lived May 1, 
1930, and that plaintiff should have tae custody of the child from 
that time until September 1, 1939; that plaintiff sheuld pay defendsnt 
$45 per month for the suppert of the ehild semi-monthly while the 
ehild was in California, 


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* + ie ad 
“3 2* 















— 

December 22, 1939, plaintiff, upon notice te defendant's 
counsel, fileé hie verified petition in whieh he set up the ilesuance 
of the injunction vane moGifiecation of the order, as abeve stated; 
that the ehild bed been taken to Loe Angeles by defendant pursuant te 
the modified order; that defendant had refused te permit the ¢hild to 
be returned to plaintiff in accordance with the agreement between the 
parties, and the prayer was that a rule be entered requiring her to 
show cause why she should aot be punished for contempt of sourt for 
feiling te comply with the modified order. 

On the same day an erder wes entered which recites the filing 
of the verified petition by plaintiff, and it wae ordered that defend- 
ant show cause by January 2, 1940, why she should not be punished 
for eonteapt of court forfeilure to comply with the modified order. 
Deeember 28, 1839, defendant's counsel filed a verified petition in 
which he set ap that on December 22, when the order requiring defend- 
ant to show cause wae entered, he was out of the city and sought te 
have the matter continued through the efforts of another attorney; 
that defendant wae not reeiding in Los Angeles with her mother; that 
defendant had @ good defense to the petition and wished to anewer it, 
and the prayer was that the court enter an order extending the time 
for defendant to show cause to January %, 1940, December 28, an 
order wae entered eubstituting counsel for defendant. January 4, 
1940, an order was entered which recites the rule entered againet de- 
fendent came on to be heard; that a certified copy of the rule had 
been served on defendant; that defendant wae not present in person but 
hed filed her answer which the court held insufficient, and it was 
ordered that a writ of attachment for contempt issue forthwith against 
defendant for her refueal te comply with the order ‘touching the 
custody" of the ehild, The next day defendant filed her verified 
petition to modify the order entered Secesber 12, 1928; that since 
the entry of the injunctional order plaintiff had inetituted 2 suit 
for Givoree in the Superior court of Cook county in which he prayed 


= 

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dedi — at ieee ‘ae nt mein idle _ po%e! 








244 

for the custody of the ehtld; that shortly after the filing of plain- 
tiff's suit for diverse in Cook county, she filed a suit for divorce 
in California against him; that she was willing te agree that the 
custedy of the child might be divided between then and prayed that the 
eriginal injunctional order be modified so as to promote the beet 
interest of the child, 

January 9, 1940, defendant filed her verified answer to the 
petition for contempt in which she set up in considerable detail the 
adiffieulties which arose between the perties and the scorre#pondence 
between her counsel in Californie and plaintiff's counsel in Chicago, 
This anewer is eworn to by defendant December 29, 1959, and epoarently 
is the anewer which the court found insufficient as shown by the 
order entered January 8, 1940, It is from the order of January 8, 1940, 
thet defendant appeals, 

Defendant contende that *A court of equity hae /Juriedietion 
to adjudicate between husband and wife as te the custody of their 
minor child, while the parties maintain their marital statue;* that 
in the inatant cage the court was wholly without jurisdiction, and 
reliance is placed on Thomes v. Thomas, #50 111. 354, In that case 
At was held that equity hed no jurisdiction to decree the oustedy and 
eontrel of the children of the parties except as an ineldent to a 
Givorse suit. The court there held that neither a want of harmony 
between husband and wife relating to the management of their children, 
nor the right of either to their custody, contrel, support or 
education involved any equitable question of an equitable nature euch 
ae authorizes a court of equity to decree the ecxzre and cuetody of 
children, as between their parents, except ae provided by the divorce 
suit in cage a divorce were granted, 

Counsel for plaintiff contends the rule announced in the 
Thomas case is not controlling becsuee in the instant case he 1a not 
seeking the eustedy of the son but only that the domicile of the child 


ope 
~atulg We gekiet act softs ylonone tad phitd ade Yo ybotaws edt 10% 
dexevih <6% tie a GeLtt ede ,venvoo food at ewsevih wor glue atte 
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etd fit Boywre han wach noewed Sebtvid od Sagi Bitde edt Yo yboraue 
fusit dd stomory oF 40 os Soltibon of —X caboꝛtoavlau Iantytne 
bide edt to. te foonszat 
ot ov wove Bebtsder ced Kort? dasanstes (Or 0 yuamt 
ot S20¥eb stdaiebtanon ut qu ved ede dolitw ni Sqnodnes ret seitited 
eonshaoquertes ett Aan solving edt meewted osew dotew vols twervaeh 
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at YS mvode sa inotor vivant Savor ewes eit detdy sewsne edt ak 
ones (8 etal Ye ates ott mort oi 7 ober 8 Yianset detetas betetae ceive 
me Ue taabaore daa 
wotterberatias wlive to sttoo A saat shmetnee dnabacred 
‘gkadt to ybotene edt ot ve ottv ne duadend averted otuotbuths of 
ted? “{ontats Invites «hedt stat ates aetireg * ‘oltse — hitde sonke * 
Ben \tebtorSatuut Jwouete eLiedw aay Faweo ed? nas jastans edt at 
‘asad fade ax (888 LET Oae .standt .v asmodT as beosta af “somation 
bad ‘tbodaue sd¥ Setsed of molvotbalau( om hed ehupe Fade ‘fod aay gh 
4 of snebion? as 2 tqeexe sottreq wit Yo nexbLide edd 20 
yiomnait te tnd A tosttlod gaat Bed wuent duoo ed? .alus —— 
iowbiide <tedt te taemeganan edt of gnitater ottv bre “pandeont nomad 
. ~" “$8 Peoaque fournes | Werans thedd od sedste ‘te ‘tigi ie 
‘fows ewuton efdadiups ae to solteenp eidattupe vas bovfeval i paltneabe 
‘te Yboseus Bae s1so adit coroeh ‘ot wWlspe ‘to dates a jon: —— * 
— ⸗ ‘wl — —— —D—— sheds ‘neewsed 
 Setnars ote sonore ) 
ot? ni Beonwonna * edt ahassaes — —* ata * —* — 


De aa ee a 3 ton) te eo eed wid. Al. st dl 2 


5 


to —— 


— LIT IS 









— — D——— 
tive 















*54 
vewain in Illinois, We are unable te agree with this contention, 
Several of the orders specifically provided for the cuetody of the 
ehild ané we think the cause eannot be distinguished from the Thomas 
oane, 

ve hold the court had no juriediction of the subject matter 
ef the euilt and the order appealed from is reversed, 

ORDER ARVERSED, 


Matchett, J., and MeSurely, J., consur, 












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41292 
JAMES A, MAGUIRE, 
ve 


LUX CLUAWERS, ING, 





LUX GLUANERS, INC, 
Appe 


v. 
JOSEPH MOTTLE, doing business 


as "MOTTLE CLEANERS, * 
Sppellant. 





80%7.1.4.542 


MR, PRESIDING JUSTICE O'CONNOR DELIVESED THE OPINION GF THE COURT, 


November 16, 1936, James A, Maguire brought an action 
against the Lux Cleaners, Ine., & corporation, to recover $2500 for 
damages on account of the claimed negligence of defendant in cleaning 
plaintiff's ruge which Haguire delivered to defendant Septesber 36, 
1935. It wae elleged that on the date of the delivery of the ruge 
the reasonable value of them was §5600, and when they were returned 
the reasonable value was $1100. December 31, defendant filed ite 
answer admitting 1t received the ruge September 50, 1955, for the 
purpose of cleaning them, denied other antters and that plaintiff was 
entitled to no damages. Some ordere were afterward entered and 
February 4, 1937, defendant filed ite petition praying that the order 
of the court theretofore entered, setting the cause for trial, be 
vacated and that Joseph Mottle be made a party defendant, On the same 
day an order wae entered vacating the order which eet the cauee for 
trial and leave wae given defendant to file ite amended anewor within 
20 days, Another order was entered on the same day that Joseph Mottle 
“be impleaded as a party defendant" and that summons iseue ae pro- 
vided by §25 of the Civil Practice act. . 

February 23, the Lux Cle aners, Ine, amended its anawer by 
alleging that Joseph Mottle, as a matter of fact, performed the 
services in Gleaning plaintiff's rugs, and if they were damaged it 





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Koites on tagword eriwart .A somal ,8t0L .8f tedmevet 

10% OOMNE TeVeSe2 of ,molfareqres a',,o8T ,otemael xu odo sentaga 
Ridnaels at tuabnote? Yo eomegtfgen beatafo est Yo taweods Ao sopamah 
.0% teduetge® tnabusted of bereviled octuged deldw agut a Ytttatelg 
ague add te Yravifed oft Yo tad ot me Sedt Hegelfe saw $1 eer 
beniwte:t orev yer? nedw Ben 0080) ew mode To oulsv sidanoases oft 
at bellt snabeeted .{8 tedwece .OOLD$ raw oulav eldanosasi ait? 
‘ed? “ot ,O8CL (08 qodsietqud ager ent Deviecot #2 gulttinds wana 
naw Titmtaly ted? bus eveltan dette helmed mes? yatnasio Yo esogtwa— 
Sno botetas Srovtesta erow axebso emo® = ,segamab on oO? Beltlens 
xeb1o ent tart gniyerd aottived et? Hellt taabaeted Veer + yrawede® 
od ,laitt qo? seus edd paltice ,Seretne stetotered? tasioo edt ‘to 


gmae oct 0 ,taabnoted etraq # eban of @L9¢6% daseot tate Bae betacuy 


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wae his fault, The next that appears in the record is a pluries 
gummens dated June 17, 1937, which was served on Hottie July 9, 1957. 

Nothing further appears until the following Mareh &, 1958, 
when an order waa entered dismissing the suit for want of prosecution 
and although the exit was Giemiased, ne one seemed to have isaerned of 
this fact, and September 20, 1938, the Lux Cleaners, Ineo. filed its 
Claim against “Yottle, in which 1t alleged it had received the rugs 
from Maguire and turned them over to Mottle who did the eetual work 
Gleaning the rugs, and if Lux was held liable to Maguire, Mottie 
ghowuld be required te pay Lux, 

The next that appears in the record was that becenber 2, 
1938, a etipulation between Maguire and Lux Cleaners te set aside the 
order of Harch 3, 1938, Gismissing the suit for want of prosecution, 
was Tiled, On the same day en order wae entered which recites the 
¢auge came on to be heard upon the stipulation between Naguire and 
Lux Gleaners, Ine., and it appearing that Joseph Kottle had been ia- 
pleaded ae an additional defendant and had been served by proceas, that 
he was in default for failure to file an appearance, that the cause 
wae Giesmiseed through mieprigen of the clerk, and the action was rein- 
stated, Cbviously Meottle was not in default, then he wan served 
there was no pleading in the case claiming anything from hin, and 
when the claim against him was afterward filed he was not notified 
and no rule was entered on him to answer the clain. 

After the order of December 2, reinstating the cause was 
entered, the next that appears ie that February 3, 1959, counsel for 
the Lux Cleaners served notice on counsel for Waguire, sapverted by an 
affidavit, thet he would ask the cause to be put on the trial 
calendar, April 24, couneel for plaintiff served notice on counsel 
for the Lux Cleaners that he would move the court to set the case for 
early hearing. The notice recited that a d4efeult had been taken 
againet Hottle because he had failed to appear and anewer, und april 
24 an order war entered in accordance with the notice, which recites 


ote 
selnule « af Sueoen ais af exeeqqe tad? txea ed? tine elit, aw 
EOL ,@ YUL ofezeN mo Bowaen vew Aokdw \SOL TL emul heted * 
———— 
nots weeaong te sas teh Phen ori? pitheaiaalts bereiae eaw —V a⸗ ‘wore 
te Seatasl even 02 Somaes seo on Senninath new sta ed? dguod) Le Smo 
efi SeLLY .oel ,aranset? xi edt ,O50L Of wadtegge? Baa ,toa% ahaa 
agee ed? Seviewes bac 3! begelia t2 doldw a2 etter tentsgs atelo 
wre Landes aca bkb only alecou OF nove sedt dewwss Bat —XR A mon 
ebtent oubwgak o¢ eidatl Died esw xual UF bia \Sgwt odd gatuaete 
| ak Yq Of Pend: SO: NEO 
——— 
odd obtan tos oF ereneet® aml Ane ordmged neented sottalugiin # .BOOl 
_shodtuoene m 3o Iaev Tr than ad? gatvetnats 0604 8 Aerak, Yo, abso 
bas extigek Kemwiad Bolt asuasse wd mogu Bused od OF HO, oma oAUBD 
“Hi goed bac alt7e" dgonol fads patisegqe #1 daa ,.anl ,etanees? il 
tuid yeneooug Ud Derren seed bad baa tnahaeted Sanoistods me 2a, hebaeta 
oasao. ait tals ,ennaseenqe na 2 of ayuttal 26% tivated al naw eff 
~Aket osu aokios odd ban vmate add Ye soatiqata dguout? besetanth aay 
bevaea naw oc Ged .tLusted af ton san elitox Yieweredo .hetagn 
nw ald mout gaidtyar gaintelo saan et at gatbantg on an auoa⸗ 
Deliiton ton. was od Bels% imowies le saw mid santaye miele edt sede 
⸗⸗ Siele edt sowaae of ahd me benetee paw Lin oa bie 
few waeo ott anisatentos .2 uedngos’ 30 webroot xetth.. aa gad 
90% Lennon REALS ysaundel facts — — 
as ad besaoggem \wUtwpal sot Lesaues no gotten bovase auenses0 xu edt 
.» Aetat att, ne.3nq ad ot onuae eid Jas biuew os tadd evabsI2s 
| Los auas mo ootton derios Mitalalg 1% Leennoe bf kha ; stabnelan : 
2 anne edit gon, of trwoo, oa a Moo Ane RAR TO SAY a 
Pen eon ben een ARTE AO A en 


wéd Halder thie setebenese bt Recebens | 












Se ee pe 





-S= 
thet on motion of counsel for Maguire it appeared that Sottle had been 
served with summons, had failed to file hie anewer, and it was ordered 
that he be defaulted. This wae obviously erroneous because Nottle had 
not been notified, and no rule hac been entered upen him to answer, 

May 18, 1939, an order was entered which recites the coming 
on of the cause to be heard on the complaint of Maguire, the anewer to 
the claim of the lux Cleaners, and the default of Mottle and "IT 15 
ORDERED that a finding of this court be and it i# hereby entered 
ageinet defendant and sounter~celeimant, LUA CLEARLAS, Lneorporated, 
and against JOSEPH MOTTLE, counter-defendant, and damages aasensed 
against said LUX CLYANERS and JOSEPH MOTTLE,* for $2500, and judgment 
was entered egainst both. It ie hardly necessary to state thie was 
wholly erroneous as against Mottle for the reasons stated, 

dune 16, Mottle, by his counsel, moved the court for leave to 
file a epeeial appearance and to vacate the orders of December 2, 1928 
and May 18, 1939, and it wae ordered that Mottle be given leave to 
file a epecial appearance, and the hearing of hie motion was set for 
July 13, On the same day, June 16, Kottle filed his especial ap- 
pearance and his motion supported by affidavit. June 23, the court 
entered an order, on motion of Mottle, which finde it had juriediction 
of the parties, and it was ordered that the motion te set aeide the 
order of December 2, 1939, reinstating the cause be denied, ‘The order 
of default and judgment against Hottle was vacated ond he wae given 
leave to plead within 20 days, 

July 19, Mottle filed a document entitled “Plea of Defendant, 
Joseph Mottle* divided into two parts, “Motion” and “Anewer.* The 
motion wat again to vacate the order reinstating the cause and the 
judgment. The anewer part of thie decument avers that Nettle had no 
knoxledge of the allegations of the complaint, demands strict proof 
and Genieé liability. July 27, follewing, on motion of plaintiff 
Maguire, 1% wae ordered thet the plea of Mottle be stricken. It wae 


further ordered that the motion of plaintiff te strike Mottle's answer 
bea doniad. 


«Bo 
noed faci oLesox tats beaaeqga af ot iuge” ta? fosaues te nelson as tarts 
betebte saw 72 baa .sewenme eid eilt of balta? had anommen agtw bores 
bad sitte! eawaced evesnorse yfauetede aaw aidT bos Lumteb od od tana 

-tewema Of min noqe Soveime mood Saft elut on ‘has Dottston need —_ 
animes odf eatine: dotdw Sevatne aaw tebi0o ma .@80L ,8f * 
cd teweas oft rtnza To tntalqmes ed? no baad of of wound adf Yo no 
ST TE" Bae oifto% to tiusteb ade bne —E ae to ntato eds 
Seretne dor ans at tt dae od tases als? to patbalt B tant aaaadao 
De¢ereqresa! ooooooo— — \Snamtalo~otawos ns tanbaotes 
beaneses segenad dns ,faabaoteb-tetayoo (Suton ol Ponteys: bas 
Tnomghut bas 0688? aeꝛ * SUTTON HERCOL Ane eakMansD xu Bice tontaga 
aa ante state of pineesoen ylbiad at +1 td od rantans boredne aA 
i ed ate anonaet ont tet of8 tom tantoga oa auoanerss "qt tede 
ot evant 20? tues arid even \feeawoo ald Ww of ¢0u OL nur SRM 
eser * Tadao to avehco edt esecav ot bra oonenaeqas 211 
Of ovael nevig od — tans bovebro amv 32 bas eet Of yal Bae 

103 fea saw motton etd to guitasd ott ‘baw eonstseage “throes as ott 

F ~q Satosgs eid Dolby oftton .8E onut .yab oma off a0 “8 vist 
axuoo of 02 eal .tivebstts vd bedrocye molt on ‘ald bas 80 aa «* 
motetbataut, had $4 shalt doteiw otrron ‘Holton ne ceive un boxéine 
od? obten tee of notion ads tact bereb10 —* a baa seeteag ett to 
ebro ed? .botmeb ed snus adit salgarenter ener * —— * r 
nevig sav od bas besnoay saw oLtzox fanteys snomsbut San #tuateb te 
) ab os nba tw bola ot —* 

\Paabaeted to ‘sere belttine easauoon —E efszoK ar ae 
“dt *uewans* Ban *nottol" ,euaq ovd onal Bebivt —— 
“et bas easso att wnttad enter rebte ods otsonv ot tage “ent halten 
on bad eiston Sails nrevs aoaudod aid? te $19 a0wene oa — ——— 
too torso sbnamod tate lanon oat te nuotsagor i⸗ ona to * pe: *8 
nuara to nolton ao .sabwolto® v8 in uasti botneb bas 
aaw an edo tage of ote ron 0 aetg ot fadt Berebao wav —** 


— —— ——— arre· ‘qilsnteta to sottos ott tae 


datetnh nih at betaine eed ain oO 





cin 

Nevenber 1, following, counsel for Maguire moved the court 
te atrike the anrwer of Gefendant Kottle because of insuffieleney, in 
that it amounted to the general iesue which had been abolished by the 
Givil Practice act. On the same day an order was entered setting 
plaintiff's setion to strike Mottle's anawer for November 21, and on 
that day an order wae entered denying the motion, and it was ordered 
that Mettle plead to the claim made against him within 20 days, 

December 8, “ottle filed his anewer in which he denied the 
sllegatione that he had received the rugs to be cleaned. January 17, 
1840, Hottle filed his petition in which he set up that it was agreed 
between the parties that he be permitted to examine the ruge and that 
he wade such examination and wae advieed that damages claimed by 
plaintiff against Lux Cleaners had been settled, January 17, 1940, 
an order was entered on motion of attorney for Hottle giving him leave 
te file a supplementel anewer, and on the same day a supplesental 
answer wag filed which set up the settlement between plaintiff and de- 
fendant lux Cleaners, January ©8, 1940, an order wae entered on 
motion of Mottle to take depositions of certain parties before a 
notary, and on the same day another order was entered on 
motion of attorney for plaintiff Naguire, which recites that it ap- 
peering to the court that no notice wee served on Maguire's counsel 
for leave to file hie supplemental answer, the suppleentel anewer 
wae stricken, VYebruary 5, following, another order was entered 
setting the cause for trial February 15, and it wae further ordered 
that certain parties named be directed to appear before a notary to 
take depositions at the instanee of Mottle. 

February 15, the case was called for trial ae it had there- 
fofore been set for that date, and the report of the wreeeedings of 
the trial Gissloses that when the care was called for trial, seunsel 
for Hottle aid: “we desire at thie time te present a petition for a 
change of venue, THE GOURT: You desire to present it at this tine 
after all these hearings that you have had?" After sone colloquy 


obo 
duuoo ed? Sevos extugeX cet feeauoe ,gitweliot ,f tedmeved. 
ad 4Yovelolltwan: to eaxseed olive" Jnskasteh to x98waaa oc? etlate oF 
e823 Yd beleliods seed bat doidy simet Lageneg orl? of Bedapoms fh fads 
gaitios Seretas aay. tsda9 «4 (Oh oxmas off 8Q fan 99ftoand, Lived 
10 ban 8 aedeevod sot aswana s'elvteN adtats of noktom al ttténtale 
bersbie asw t4 Soa ,colsou oft gatynod beyetse saw tebao sa.yab gads 
eyah O8 mhddiw ais Jeaiega shaw alalo edd of baelq alfa". sade 
og beineh od usidw ol sews oid Ball altte! @ asimeceG =) 
Ti yeas .bensoie of of onus od? bevisosu bad ef tad? eaoltapetia 
Deouga saw 74 gad? au vse en dotdw al aodsitog eid belt? efgdek ,Od@L 
fant Das agai ad? sotusxe cd best terxeg 96 oc tadd aolteeq oft aometed 
ys Somlale segameah tadde Desivie aaw bn8 solteninaxe dowe obam, od 
,OOL Tf wemwmal Seiten need bad etensel® aud faatage TRitatale 


avast ald gnivig olg¢ek sei yenvetts te aelton se berstse saw rebt0 ne 


, fetaeastqqua a yah eane od? no baa .rewene latgemelqque «olf? ‘of 
sb baa BEnialy meevted Guawelstos edt qu tee cotdw belt? saw sowane 
as Bevetas ome weite ae ,2o@l ,@8 yrawasl .ateneet) xed tanbaet 

& o19led aettzed aiadieo te sAoktLeeqed edn? ad efste to woltem 

a0 dezefae sev 1ebuo taivesa Yah oat alt no dae ,yeeten 

gp tL ted¢ rotices dolde ,otiwga Titentel¢ sok Yonuests to meltou 
lounseo s'oulega® ae Soviet saw oolton en Jadt Sayno edd OF gatuseg 
 sewane Letnenelgqve edt .rowens Letagmel gq aff of£3.60 otacd aa? 
‘betedae san tele aedsons ,yeivoliod .8 yiaesdel medalgte see 
berabio setvapt saw Tf Bae .af ysawided fale? sok eames od? galstes 


_ @F Ysatoun a eteted saeqqs 02 Seto01td ad bomen eeltteq slatr00 tadt 


.9h976% Ye eoastant od? te suoltioeqod ealad 
~sted? bad ¢2.ae Lata tet beliac nav-esan odd Sloytawadet oy ol) 
‘te aynidocort, aff to troqen ed? has ,98ed Sate set Gos need crete? 
feoaueo Lalit 201 belles sew esa0 off nadw tad? weaekoeth Lalat ode 
4 Tet soltive # daveetq of ant? wld? ta epiead ov" ‘yhise eftfoK 20% 
_ eeht aldt da tk tneaenq.of -ertned sok PEAYOD SME somo XO aymndto 
_ \eWupe Leg emee aettd, "tad ovad woy tadd egnttacd oeedd Lie 198 bi 





8+ 

eounsel for the Lux Cleaners objected cn the ground that the motion 
for change ef venue came too late since the case was set for trial 
geome time before fer February 15, The court permitted counsel te file 
@ petition for change of venue but denied the motion at the time 
ateting to counsel for Lux Cleaners to “draw an order denying it, and — 
eounsel, set up the reaton that you Enow of for denying 1t.* On that 
date the court entered an order, apparently prepared by counsel for 
Lux Clesnerg, in which it wae stated ‘that the motien for change of 
venue has been filed for more than thirty days sinee the return of 
summons *** agsinst *** Mottle, and there being two defendants te the 
action and conrent to the application having not been had by at least 
three fourths cf the parties in accordance with Section 9 af Chapter 
146 Tll, Sev. State, 1950", 1t wae ordered that plaintiff's petition 
fer change of venue be denied, The case then proceeded to trial, 
eountel for the three parties being in court, and et the conclusion 
of the evidence juégment for 3500 was entered in favor of Lux 

Cleaners against Mottle and he appeals, 

Counsel for Mottle contend the court erred in Genying ite 
petition fer a change of venue on the ground that the reason stated 
in the order, vic., that Hottle had not complied with the provisions 
of par. 7, chap. 146, 111. Rev, State, 1930, was unwarranted because 
there were only two parties at that time interested in the case, ‘“e 
Go not stop to consider the reasons stated in the order or the 
argument made, beesuse the record diseloses the motion was not denied 
for that reason but for the reason that 1t had not been presented in 
apt time, ‘Thie appeare from what we have above quoted from the 
report of the proceedings of the trial. we think the motion for a 
change of venue made at the time the cause wae called for hearing 
cane too late and was properly denied. Caplow v. Saglow, 255 111, 
App. 3389, 

Gounsel for Mottle next contend the suit having been Gis- 


 paktom aft Jad? baseig wif oo betoeide axeneet® ued oft cot, Loraves 
- fetid 102 208 age on@o ode gonin Stel ood omae samey,; to pando, 4? 
allt of deacuse ess isiag @sec ec? .41 yueeidel 19% esoted. omkt  saon 
eek? e862 ta aoitem of Selneh fod eumay te egaade sot. noestizeg a 
bna 42h getyssd sehie an web’ of wavaned? sad eh Leones of galsage 
vasd > * 2h yadyneh wi te wont woy Todd sosess oat qu ton ,loamuee 
<n domtweo ud betaqeng yleneuecge .Tebse ae hocedae due sdt otah 

te egmadio 10% aedvow edd tadg* betete taw Gi doldw md ,etoneedd. sed 
‘to mutes off ponte eyab GWatd? sad? oxom gol Sell? seed sad gamey 
tonel ga YM Perl need gon wAtvad soktaobiqus. ef ef, Pagnnom hna.noktes 
<ovqas? te @ aeisoo! se iw eonsimeces: ni aelgieg ost 30. edd uwek opnds 
( pelestog e'Tiktatale Pest Sovebio saw 72 ,"S68L .ote08 veh ALL Obl 
iaiet of bedescarg sees onan od .belaeh od eunev Re, epastp, 20% 

_ modanienes edt 3@. tne Jaume nl gated aeltzag sould op 10, Loammoe 
el %& “OVS? wf Sereda sev G04) a0 taeagdul somebive ads, To 
saiaeqye oc bee @1990K dandega, aieaaelD 

at griyned at Somme tues ed baetneg efggok yor Leeswod oir on 
hotel, menses off Jasit hevery odd a oumew to egnasio a TOX sOsssog 
anedeiveny ped dttw botlqnoe sou bast afsGo% seald y.atv sobre, ome as 
eomaced Setnacsewan saw ,95@L .egad8 wok LST ,O0L .qade, S)458G,30 
eo 6 .oaee aff al betgotwset wilt todd Ie eetiaeq ont (ine sew eued? 
gl ae ashi edt KL botade ancgaet od2 reblenes,oF gota, don od 
hatash ton sav aeidom edd aoaclest> bucves odd eamsoed , obam sneamyte 
at betneserg need ten bad 3h dad? soreex ant 10% sud nonsen, sass, a9? 
als mort betoup oveda eyad ox sady eoxd ataeqga sid? omit tqe 

@ 3O2 modsom ocd Aatdt ot Lad of? So agathseoong oct. to dnoues 

(. Batueed x0? Delia saw eesmo ed? ent? add ta ebam, euaey Yo. epanslo 
: —— — — ss 
S 2 ineanng OF wee. wer L VEARRG. ARE. 







-6- 

miseed for want of grosecution March 3, 1938, the court had ne juris- 
aietion to reinstate it December &, 1938, sinee mere then 2 days had 
@lapsed sinee the date of diemiesal. If the point was properly 
preserved there would be merit ia the contention but the error wae 
waived by counsel when he appeared on numerous occassions having the 
seurt enter —— in the trial of the ease, Zandstra 
Vv. Zendstra, 226 I11. App, 295, and cases there ¢ited, 

The evidence shows the rugs were delivered by Maguire to 
the Lux Cleaners and the latter, not being in position at that time 
to clean them as requested by Maguire, turned them over for that 
purpese to Mottle whe afterward 414 the work and returned them, The 
measure of damagee in euch a situation is the difference in value of 
the rugs at the time they were delivered to Lux an4 when they were 
returned to Maguire, 

Ceunsel for Mottle contend the evidence is whelly ineuf- 
ficient on this question te sustain the judgment, and we think the 
contention must be eusteined. Thie seems to have been the view ef 
the trial judge exeept for the fact he wae of opinion that since the 
evidence sheweé the Lux Gleaners had paid Maguire $500, there was 
at lease damage to that extent, (Lux testified he paid Maguire 7500 
"to leave me alone.") But we think this ie a misapprehension. ‘ith- 
out going into detail on the question of evidence, we think it 
®learly appears that there wae no evidence of the value of the rugs 
at the time Maguire delivered them to Lux, 

Complaint is made that the evidence as to what Maguire paid 
for the rugs wae inadmiseible because euch fset did not tend te prove 
the value of the ruge, This ie net the lav where goode such as rugs 
are bought at a fair sale. Nothing appearing te cast suspicion on the 
transaction, it will be presumed that the price paid is the reasonable 
value of the goods, Cloyee vPlaatie, 221 Tll. App. 18%, Sut in 
the inetant cace Meguire teatified he had beught one of the rugs at 


-situt om Sad eves edt OGL (8 cote! nettypencty to taaw cot Beaelh 

bat V¢ab Of matt? oteer eonze (BSC .9 vedeened tf stadentet of motiols 

eiteqwne saw tateq off TT .faentwa2h toe sted eff eonte’ Sooqnts 

naw covce ete tet nettwetneo ot wl Ficen of Biwew eveds berrebery 

ete Qniveat snefaseso avetomm no berseqqs af atdw feamsoo ud bevkaw 

eetasdsy jeen0 oF to fare? ont ot ——— — — — — — tote twos 

cae bots eved? eoeer Ban 60% GA IIT O98 Leatebnes Lv 

ot ertige YS Becovifeh otew egirt edt awerte oonebive eft 9 

ext? Sort 24 sotttecd at geted ton \tettsl ad? ban evense ld xu ont 
“fadt 10% revs madd Hemrkt ortegem Ye Betesuper ef ott anete 6 

ed? edt tenuetes Bre teow edd DID Buswrette estw Sl9te oF ovoqriy 

to owfav Hi eonreTtib edt of netteutia & Mowe af eegamab Yo otkeaee 

A —ü U O U U U U —— * a — 
—— of Somtuter 

tune? El fede a2 denensvd-eat — efetes det formed’ 

ad? Andy ow haa pteemebet ect mister: of sotteenp #2H7 hd sitetodt 
to welv ed¥ need ovad of emees id? Bentetens od tim RolsaetROD 

of? conte tad? motntes to sev on Font est dot tqeoxe OBheL Late? edt 
aay ote? (0089 oxteph! Steg bed @reHbeTO xed ad? Deweds boaebive 

068% orkuyal Stag of Bottitect cul) saetee Patt of ogamdb oaset fs 

civ! ndtenederqqante 2 et ottd antat oo tet (* enoth' da eveet od 

$f Antit ow jvonshive Yo softweup edt mo trates’ ovis ghted tue 

egut ent te aviav oi? to somebive on daw — 

IE A ehan at — at 
- averq of Bnet tot BES teat dove cenaved eld teetahand saw egqur od? 48% 
agi: oa Heim SndoR ototle War est Pon et ata” segue tte to ontev edt 

ed? no notohghwe demo of Gatineqqs wathitol .ofee tat a te edged waa 

 9idanoecet act et bhaq vobiq’ ont dex? Bonveory od Lfte sh \nelfeandeit 
ak tw 86L .qqA ET 288 ghgeslLy peverD — 
2% eye asf To ene Sdgusd Had’ OH DeRttowed” wringan’ Ba ’ 











Feo 

an auction st Hot Springe for $2350 about six or seven years before, 
Tt wae sent to be cleaned; that he bought another rug in 1925 or 12926, 
(which wee ten years before the rugs were delivered to Lux for 
eleaning) for which he paid 3500 or §575; thet he bought another of 
the rugs from a collector; that 1t wae a used rug; thet he bought it 
becouee 1% was a very fine antique rug end Ke thought he paid +420 for 
it. A witnees,who wae femilier with the value of such ruge ae the 
ones in question and who seemed qualified,called by the Lux Cleanere 
testified he examined the rugs after they were returned from the 
Gleanere and gave hie opinion ae to the value of the ruge at thet 
time and what they would heave been worth if there were not certein 
Gefects shown, Counsel for the Lux Cleaners, after analyzing the testi- 
mony of thie witness says: “I disagree with appellant [ottle] when 
he states that the only testimony in the record which relates to the 
value of the rugs in question is the testimony of Maguire ae te what 
he paid for them and the value after baillment as testified to by 

the expert witness, and submit that both the value et the tine the 
rugs were delivered to the bailee and the value at the time they were 
returned to the ballor wae testified to by the witness, Marry 
Dag@igan, an expert, * 

We think the evidenoe does not sustain this argument, 4s 
atated, the rugs were purchased by Maguire ~- one at auction and 
another secondhané ~ a number of years before they were sent to th 
Cleaners. They were in use duping thie period, The evidence ae te 
the value of them when purchased by Maguire is wholly insufficient, and 
‘there is no evidence of their value when they were sent to the 
cleaners,and therefore the judgment cannot be sustained, 

The judguent of the Superier court of Cook county is 
reversed, 

JUDGHANT REVERSED. 
Matchett, J., and Kefurely, J,, coneur. 


— 

« peteted otesy aevox yo nda twode GIES6 tet agaiug? tok ta sestous, as 
.280L wo G88 wh gar asians tegwoed od gadt. jhenaelo ed. of. saee anv. 31 
Yo cedteme Salguod ec teat [AVOh co.008% Blaq of Motdw a0t (psilaeets 

Th #@egved of fas? jger Been a sav 42 tad? 1wOToel loo # most egns, ont 
Oh OSD) Diag ox Saywedt od dae yew euploan MALT YLOW.a Baw 22. enunped 
‘emt en sue Sean Jo elev ony Sohw veltinst saw oiwyseentiw A oth 
armnoel? neni ot yi Beline, Seltilasp Semeos efw bag aolseenp nL Beno 


etd wow beaww?es exeu yodd testa apur odd. henkuane, of beltitaed — 


| tad? to eget ot? Yo ewley ect of a6 sotatqe eld evay bow exenaolo 


aladino fen oxen ones? LL diuow nosd ovad Divow. vod? fade bas omdt 


witeed sa? gaingtone asks ,euesael® xed of 20% Jenmyod. meds atoeted 
nedy (n£996%] taalleqes Attu soxgensh Xk" tayae aegatiw sit to yaoe 
gilt 08 aetalor Motte Dicost edt nh Yronteees xine edt. test setate ad 
tase of 08 watwesk te Yaomtteet oct af. molsaou.nd egua.adt Yo eulav 

| YE OF SOLTISeet o6 suemtted refs. oulav eft dae sods cot bdaq, od 

: edt om2t ap? te swlev edd dgod dane tiaduo dae. .anestiv teoqxd edt 
| exe yous emis sdf te sudev edd bee cellad oct ot boveviled exew, agus 
| ELAN amend by ode We oF Saststee? waw.noLdad edtof Bemeut os 


— *  S5eGRe Ae AAyloged 


Sas sesteum ta ae - gitaysh yd beratoumg view sgen.edt, betate 


aig of Soa exew Yad? oXOTed auesy Fo sedmua # + Dandhnones yodtons 


§ ad ,Saauwgua add siatexa tom eech. —A X— 


of 2 sonebive aff  bolitog sidd yaliwh eas as oxen godt. sceneeto 
* simelolvines: yiledw ef eudegad yd beeadogag sod med? Yo eplav edt 


edt 3 Toes o1aw yodd aviv. .euiay «ted? to, eoaehive on of ocadt 


| sbantatena od tonnes tnomgbul, ed3 ero lotent faa,ersaseso 
at qdewoo dood to Iaueo told 
boy oot? Goa Downedign eet Stee #2 vo beneares 





AAT — > hte sly pameto  pyionm: watt ‘te ‘onlor - 


aS a4 wee are eae ‘ 


ane? to Snemgint ect. os a ee 





41514 


JOHN PRABEX and JERRY ** — 


doing business as 
ee | 
BOOK COURTY, a . 


HOTOR SALES, 
etn, | 807 I.A. 543! 


UR, PRESIDING JUSTICE O'CONWOR DELIVERED THE OP IBIUH OF THE COURT, 









FRAHK C, STAGE 


Plaintiffs brought an action in the Justice of the *cace 
court, The justice summons recites that the “cause le an action for 
the payszent of *** contract for garage rent for 2500," The case was 
tried September 19, 1938, before the justice. On September 26, the 
court entered judgment in plaintiffs' favor for 600, and as a@ part of 
the judgment found there wae “due the plaintiffs from the defendant *** 
$500 in an action of asesumpsit for monies due on « contract for garage 
rent." An appeal was taken by defendant to the Cireuit court ef Cook 
county where there wae a trial de nove february 27, 1940, a finding 
and Judgment in plaintiffs! favor for $619, and defendant appeals. 

Defendant contende that since the jurisdiction of the 
justice of the peace could not exceed $500 (par. 16, oh, 79, 111. ev, 
tate, 1939), and on appeal to the Cireuit court where “the court 
finds an amount due in exoese of the jurisdiction of a justice of the 
peace and rendere judgment for that amount, ite judgment is void,* and 
Bewmingway Co. v. Eeagle, et al., 161 711. App. 5, is chiefly relied 
upon, in that case suit was brought before a justice of the peace of 
Sangamon county on a judgment and it seems to be assumed that the 
jurisdiction of the Justice at that time could not exceed 2260, heither 
the amount claimed in the Justice's summons nor the amount of the 
judgment rendered by the Justice appears, An appesl wae taken to the 
County court where the case was heard before the court without a jury, 
The court in its judgment ordered the clerk to asseea dasager at 
$232.23; that plaintiff have and recover thet amount from defendants 









YTRHOO WOO? 


acd see LOT VOS — 


,RAUOD MT WO gorgua guy canayzaza — gorge, oezeraana *7 
eoe age lo eolsent odd ot soltos oe sigword wItigately | 

‘ot Kelton na at gages” edt fads vet tows — sot yt, 9a? ..faupe 
tau o9n0, 947 "0988 70% 2Ap% opatAg FOX tpexzaoo *"* Yo taomyag. put 
ods 08. sedmotqes a0 .eos?aul edt exoted 8805. .9k segnerae?, Sasa 
Yo f44ag 6 28 dae 008) so? toval 'etitdatal al tape * ooꝛeae Frage 
aesdadaod see mov? auaaualg on? gud" aon oundt Dave? taomabut, sat 
POFTsE 102 FoansAep 2 HO oud sotsom. te} Fiaamyens Fe aplioe me Bf, 0O8D 
Apel re, eyo shumsld od? oF, Faphasded. Wi petal tay .° fees 
BaLbus® a ,O#OL ,FS Yusundes even gb Lett? = say, ered? exadw. ytauoe 
Aangae FapapIOD Bae 818% so? xpveR 'sTUMRtaLa ap sagmabet Dae 
| (Sat ꝛe postotbotru) od? ↄeata ↄout adavgnes #aaboereg 
WOR LIT OF 9 8S. stag) 0086 Devore fom Blue oseq eds. 20. sottent 
| sauoe os9" s10du desO0 Fiver? add of Ieeaga ap dae (CSL .agara 
ony Te cotton, 2 to, netvotdetau, sf? 20 seeaxe at ↄus taveme ae abatt 
dna * boy af xOt taomBbul stebset pas epaeg 
belior viteido at ,8 .qgh -f11 —— 
ꝛe pened off to epstent. a greted Fdlguetd, tay tipo ones. tags ee sd 
«98 Fad Domuaps of oF smeee $2 he Inemabul ae xgaueo somaanal 
merit ton 008), besoxe tom Diyos ems? tady_ ta, oeetapt, ont. 29, aetepsbatent 
of Yo Tnuone. pf, TOR, apoRmND A! oattent, oe? at, pomtete, feneme, oe 
| ef of spdiad sew Leogas aA .stssgae pottout, add. xa Sonabaer ———— 


Yuwt 2 tgedtiew txue9 edt eroted sav sean od? evadw sxwo9, xeaued 
ta aopanab pecans of, svete ed? Sexebte taemphal, est at mmo *— i 
efaadasted mort tavema tadt | cA 





VRE 




















=i 
and the judguent order continues, *And now on this day *** comes 
plaintiff *** and on its motion it le ordered by the Court that the 
eum of 252.2% be and the seme ie remitted to said éefendants out of 
the judgment heretofore rendered againet thes in thie court," The 
eourt reversed the judgment holding that the County court on appenl 
wae without jurisdiction to render jJudgsent for more than #205, 
Justice Creighton dissenting. The court there said: “Plaintiff alse 
insiete that although the original judgment was rendered for an amount 
in exeess of the jurisdiction of the justice of the peace, that the 
fact that the justice of the peace originally rendered his judgment 
for an amount within hie juriedietion and beenuse the remittitur 
enteread by plaintiff in the county court reduced the amount thet could 
afterwards be collected on the judgment to an amount for which the 
justice of the peace had jurisdiction, the question of jurisdiction is 
finally and conelusively settled, It will be conceded that if the 
amount due at the time that the Juetice of the peace rendered his 
judgment wae for an amount within hie jurisdiction, then on appeal te 
the county court, interest which accrues after the judguent rendered 
by the justice of the peace may be added to the judgment on appeal 
although it dees thereby render the judgment in execese of the amount 
of whieh the justice of the peace had jurisdiction; but where euch is 
the Case, the record must discloee such facts; but the amount for 
whieh the county court rendered’ judgment 1* in exeess of the amount 
for whieh the Justice of the peace had Jurisdiction with legal in- 
terest that might have acerued on the Judgment rendered by hin between 
the time of the rendition of hie judgment and the hearing in the 
county court, “ 

we are unable te agree with this reasoning but think Mex, 
Justice Creighton was right when he eaid he “dineents from the views 
herein expreseed and from the econelusion arrived at.* In that ease, 
a8 Gtated, the amount sought te be recovered before the Juetice of 


4 
sence °** yak aldg no wom ad" ,sountinos teb«0 tnogbul edt bas 

eit gad? tuted ont yd Devebve of 22 nobtom ett ae bas. one. nualata 
to tuo atmabseted bine oF Sevtines sf ensa ad% bnew od 36.880 to mus 
ea? *.dawoo aid? af sed? faniags S5e1sbn04 oroled oted. tnemghel od? 
saeugs mo tawes ytanod adv sacs wthtlod snomgbot ond ‘deste o% sunoe 
.0084 sade? gaom Tot tHengiut <ebne% oF nottettatust ¢uedtiw eaw 

ovla Yibtasasi*® thiee wieds faueo edl .galtaeeak aetagtet) settqut 
Invos of 102 boredasr esw Sowghul Lankgtse dt dywodssa.tedd atetent 
edz tad? ,soseq ait te soitden, edt to actsosbedint ed) to seeone, ad 
tnonghul aid beusbaet Yiiantgivo eeseqg aff te eoteenl ods tadt Jen} 
aySLItiset edt epuaced bas neddosbatawl, etd nid? ly.cawoms ap. 793 
bivee tad? Invons odo Seouder f1we9 Yawed add af Wssalale yO. Doretae 
out deldw «0% dagoes an of Pnompbe, edt no Seteelion ad abuawiedte 

at aolfodbaiual, to selgecep edt ynoltoliataul Sad so2eq edt te eeltan, 
ect th tad? bebeanoe od LLbw 8k. shodéter ‘Lovieulenco dna eLfandt 
aid becabnes egaey sat Io sodden edt dadd omit odd 3a oud tagons 

od Iseqqe a0 neds ,noitetbetww, edd abdtiv saves sa it sen toempbul — 
Sotsdaes Tasmghet ev seta sssmees deldy Saometat ,fiwes Yaveo ods 
Lesage 80 taewgbel eae oF habbo ed Yam s9n0q, 068 20 wottoul, of8, RE 
fuvems eff To seesxs a2 Saenpbut, add rehKes yYdoredd 800d, 22. dgvodtla 
ek dows onedw Jad jnessotbaian, bad eesoq ead to sassent edt do ise tO 
“Te? Sawome end aud tatoet dove geoleeth Geum dxecen edt ,oanm, old 
(snvene om te aseone af ef dpawydul doudagy sasoo Kiawo ead dotdw 
(wit Laged Hebe sotsplbedawt Sat eoseq odg Ro vodtawt: edt dotdy, ao? 
heswied aid YS berehien thompherl off no Dasnese svat sigin sadt. daoxeds 
wt At yalrised oft dom Ieompbul, ste Yo votstbaer odd, 2o: ombt, ont 
 +voa_ageasge 44 ait laa 

| i Aetds gud geieonaes oict. At dw eerga of eidagy ona oi Feaergosl 
nesty odd gost adaeets" od bie od nee delet waw mordyterd oattant 








.oea0 Tadt al ‘20 Soviaum molesLoneo, edt pest, baw soneorpe. ahened 4 


te sobteul ont sxoted daxevenss sd of #igvow Inunme exit, 





oie 
the peace and the amount of the judgment rendered by the justice of 
the sesee do not appear. 

On apoeel from a judgment rendered by the justice of the 
peace interest is not te be computed on the judgment rendered by the 
justice of the peace but on the amount of plaintiffs*' claim made in 
the justice court, The trial ie de nove. Tindsll v. Heeker, 1 “eam, 
(2 t11.) 137, The court there said the seeond error relied upen in 
thet case for revereal was "that if the interest at the rate agreed 
on in the notes, was allowable, then the amount of principal and 
interest was over 1100, and the Court could not give judgment." In 
holding this sontention untenable the court said: “when the action 
wae commenced, and the judgment rendered by the justice, he hac un- 
questionable jurisdiction of the cause, *** How, can it for a moment 
be allowed, if mo appeal haé been taken, that the justice and 
eonetable would have been trespassers, if an execution had been issued 
on the judgment, and the defendant's goods taken and sold? To state 
the cage ie sufficient to show the unreszsonableness of the proposition 
that the defendant by taking an appeal, and by subsequent delay in 
the Cireuit Court, until the interest had accumulated eo as to make 
the plaintiff's demand exceed #100, such subsequent accumulation 
should relate back and oust the justice of jurisdiction of a cause of 
whieh when adjudicated he hed legal cognizance. The rule in such 
eases ia, if on inferior court has jurisdiction ab crigine, no sub- 
sequent fact arising in the case, can defeat it, when it wae lawful 
in the inception, " 

In the inetant ease, the suit was brought te recover 500 - 
within the jurisdiction of the justice court, Judgment war entered for 
that amount and the fact that an appeal wae taken and a judgment en- 
tered for §19 more than the amount claimed does not oust the court 
ef jurisdiction, The report of the preesedings of the trial is not 


we 
te @02Teul off et Berahaes sasha off Yo teveme oft Baw eoweq one 
ef Yo eotteut ad? yi Peredrey Snewghel 2 mort Iasgqa vad 3G mon 
odd Yd Boredtey tremyost odd ao Bednquos of of Fen ef teeretal conte 
«#2 Ghee atefe 'ePtievetela to heavens eff ao tut soneq off TO solter}, 
san? J .ge%ees .v ffehatY .eveg ph ef faint off taven wokteut oat 
gt neq dello: torre Swoser otf Dien cand? Suppo of? COL (LET &) 
 heswya ster ett fo seetshet off Ut dad?*® eaw Lawrever cot cand Cans 
Ses fogtenivg %o tavema eft ment ,eidawolle waw eeton edt nt no 
wt "“ trengiet evts ton Siwes tayo? ac? bas (OOLP weve’ aaw geere7He 
aoites eff pecdw® thine faxno eff eldawetaw Aestnetnoe afd? galsiod 
api Bal a ,enitan, ade ye bevehnen tneeghat ed? bra ,beonemsoo anv | 
Pneebs * Te? ol mao wok °F ,eeuee ect Lo wokvoddetan, eldawerltaenp 
ban eelfeul om? tore eles weed Ba Tesqys oa 32 ,bevolin ef 
heseet need Bal peleveers aa TL \eueseaqees? seed oval binow oldatened 
etave of Thier Bae sevay shoog atrvashesteb eft baa ,tnetgiut ot 96 
Aeitivecer¢ a to svenetdenceas wy of wore oF tnololtine wt onso ey 
Gk Yalab Mnoupeeswe ef bas eoqqa ne gutter ye tanbeeteb exe seit 
ofan Of GH Of Betaiuuweos bef Taeretnt of? Livny P2909 FlwoTkd ott 
Koitelumons Ceewpestiae down COL besore Ranwed e Ythenlety ent 
te stuso & to noltofbatent, te sobtext ett teve baw Koad eFelow bivoite 
dove mk elwe aff ,eoeartoyoe Lagel Bad ee Sev eO eel be netie Motiv 
~dun on moitetsetent ead gayee tebsetal ne tl at bene 
inftwel sew 1 tetie .o2 Seeled ase jeeeo ent BL Qalatius oat Saeupes 
“J e evar © eld —— — emg at 
~ S08t cevons oF Sdguew! sav Tiee eff? ,ebao Saatent sAF eI 8 &" 
40% bewetae ssw Saemghyt .tswes solvent ed? to neltotbatuul en? Blaby 
“ne tneapbul 2 San see? eaw Loogge an tadd teat ent Bao tavoma tats 
S1n08 SAS Fap0 Fon Goo Somealo Sawoms of? macy weow CLV cok hexee 
Tow et faint ene — —e otaoe caut· 
“oven od of @appon tases. — — — ee 


ey 








ot< 
in the record eo that we are in the dark ae to how the 319 ineluded 
in the judgment wae brought about, 

The Judgment of the County court, as other judgments, is 
presumed to be in accordsnee with the lew, Alley v. NeCabe, 147 111, 
416, 

The judgment of the Circuit court of Cook county is affirmed, 

JUSGMENT APFIREED, 

Katehett, J., and MoSurely, J,, concur, 






















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| tveda — 8B 
a eal ila as aera | 

tt 9 gdatek + youre teat oa ARG sbeebs ki SAO Baie A] 
j eo? sbes BEO2L- ONS eo reth ts he whe ae Sod eeeg aa EG? 
— ol Yniies dood te Pere ae —— * 

ily eg ee oo nr — 


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conten we kek ve Ue a eae abebaeiae! oni” ne t 4 
whet DA ee [Rein cee oe egos saccone 2 ehh | ant hiea: doomamaen' ene ia 


taeete BOE HK Oe “we neler eit Mee ———— 








— A fat Rearewees wee SB — 
J ahaa oP Chee Fee coven whewvig * raehae teh ont? baa’ —E —— ATs 
woks beeqerny ae Ms wee ost hate ‘oH Samtoart ina et hee 
4 ‘eh qatah Seaddeedee «Ss Sie (Longe ee qoktat yt toudaeted ore 
ote 68. $9 Of Sedaiumages Me Peoeerat el? Tizvky heeet ¢ 


— 





a . ‘Peer Atatageoa Csoeegeetis: ete ROLF Saowre Roicsety i) 
he so A to walteiieber, te ecktert wie othe a won wbaitew 
; Pele eh odert ACT Loeae tee Saped aad ‘Ait Soanetout ne riya 


. hevtatae tev feveghe. .Prawee apitant,.ed? ta seit: 
% “8 " B visinesee, & Rie eee? wey —* ne tae wet — 


41331 
JOHN SIMON, 


oy, 
% 


LA 
—* on 
uNIcTE AT 


807 1A. 5437 


MA, PRESIDING JUSTICE O'CONNOR BELIVEARD THE GPINICN OF THE COURT, 


v. 


HAROLD J, GALEN, 
as @AlEN REALTY 





Appellant. 


Plaintiff brought suit ageinet defendant te recover $90 fer 
work he had done for defendant aa a janitor, The statement of claim 
set up that defendant had given plaintiff a cheek for the (90 dated 


May 29, 1931, and signed by the “Green fealty Company, it further 
Harold J, Green, * 


appeared that on the next day plaintiff went to the bank on whieh it 
wae drawn but found the bank was closed and therefore the check was 
not paid, OSuring the trial of the case, which wae before the vourt 
without a jury, counsel for plaintiff asked leave te amend the con- 
plaint on ite face to conform with the proof, 1.¢., to show that 
plaintiff had earned $90 wages ace a janitor for the month of May, 1931, 
ang it was treated as though the amendment had actually been made, 

The defense interposed was, (1) that the cheek was the ob« 
ligation of the Green Kealty Co., a corporation, and the corporetion 
wae not a party to the euit, and (2) that even if the evidence showed 
that defendant Green had orally promised to pay plaintiff .90 fer work 
Gone by him in May, 1951, it wae barred by the Five Year Statute of 
Limitetione, 

The undisputed evidence is that the Green “ealty Company war 
ineorporated March 25, 1951. On the hearing counsel for plaintiff 
stated to the court that he wae suing on the check gigned by defendant 
Green “who, I believe, is an officer of the corporation." It is un- 
Gieputed that the corperation wah wate a perty defendant. 

On the second point plaintiff's evidence was to the effect 
that Green had orally promised to pay plaintiff ¢90O for the work he 





EhKe AT VOE | 
\tiveb amy % wOraxw set Gaaaviaae admhod'o Rbrtdin Bitaremea om 
so Gly —E ey Poasnated taniages tive tdgwow Tiitalalt 
altel Ye taemetase ed? .s09 that 2 ea tnabasted cet toed’ helt Ag od 
bejeab OC) eff t¢% Moods o ttitalalg aovig Sad faabacted tacdd qu 08 


sedgau? 3 — lett ee ad? yo bemgie Sas ,10ef 168 ws 


$2 doldw mo dad ed? of @new Ttttntale yab txen edt ao tad? borsequa 
aw deedo est ereteiei? Sea beeole saw duad ed% Bawet tud avath saw 
tawee eff oxoted sew olde ,esso ed? Yo Iaiet ed? gniawl .bieq gon 
~won e229 Sens of eves! hedee T2itntalq 10% feanveo ,yrwt a twodslw 
tad? woe of ..2,.f , Yoong off tlw @xrotnee oF enat a2t ne talalg 
180L ,ysH to danom oct cot soFinal 2 as aeger 08% bentee had Ttitaisl 
-sbam ceed yilantes bed tnomboema ad? dgveds sa betani? asw i baa 
~de ef? aaw xoerio att tecie (2) , saw beseqtetat erasted edt 
nolvavaqieo ef? Bas ,neltateqtos a ,.03 Wleet seer? oft to sottaglt 
beweds eonobive sit ti aeve fad? (%) Baa give ed? of yYoaaq 8 fom saw 
auow aot O84 Biftalaly ~sq oF Seatmotq yilaw Seti seers Snahneteh tad? 
Te stutat® aseY evi™ edt ud Sorted saw #2 ,SOCL , ya nl mid yd ened 
naw Ynaquod YfiseX moos ant fadd et someSive Betuqathay edt —— 
Wstnlalq wt Leanwoo gatised od? AO .L6GL ES dows beteroqioent = =—— 
“Smabaste ye berate xoode edt no yutue sew on tadd gavoo ed? of Sevata 
~ny af $2 " aeltaxoyxos edt to — na st ,evetied Tt ,ode* noerd i 
.tnsdasted Yuaq 2 —*— aoltaroqres eft ade —7 
fostte edt of asw oonsbive at ttigatalg satoy baos vs edt nO ar 
ed AtOw esl? xo? OF} Tittmtalg yaq Of Dostworg YLiese badd — — — 4 





— — 






=2e 

444 in the month ef May, 1931, Vefendant contends that the Liability, 
if any, under this promise would be barred in five years, citing §15, 
oh. 63, 111. Bev. State, 1939, which provides that actione on un- 
written contracts express or implied and all sivil aetions not other- 
wise provided fer shall be commenced within five yeare next after the 
Gause of action accrued, The instant case was brought Yepteaber 1, 
1939, wore than eight yeare after the claim was due, and the claim was 
therefore barred, 

The claim, if any, againet defendant Ureen having been 
barred by the Statute of Limitations, the judgment must be and it ie 
reversed, 

JUSGKENHT REVERSES, 
Matehett, J., and MeSurely, J., concur, 


— adsotnoe taabastel CCL ,yat Yo Know adg wt DAB 
81g gatete eres ovat at derunt od biwow vetmory stds -tebaw tae 42 

wns m0 agelten fad? aehtvony Anite OCS ages vehi AT (88 ato 
~u0ite fon smetion tvte Ifa daa bet tqut td’ wie eSaeTtB0D aLdstow 
edt Ritts Pxon oxacy 641 pide tw booneidité’ OF'Efade wer Sebiveny abe 
¶ aeduotyst tiguond noe e009 dusdnat ext “ @ 20 eouae 
RES RR ve rary tate, eae eco 0661 
fizakaegtes wet shew stotereds 






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ae ene ae aoe Mt @Piw weetnoe of eau #62 AO tetaty 


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whan “i ti tavets cqutioum ef? Gapedt ap Setause cow #2 Bee 

wth ele ‘4 ate aff 2 say Sovegretar esnetad eff 
seltareyrer GF bis ~oetiarnpees o ,.0d qteel aaa ace Yo nat ages 
bavede eatebive et? td wove Paty (9) Bow ,Chow ap oF UPaaeG & Con Gae 


grew 4 29 io qe 6o Seateere tite fed goeeet vaahistal saat 
” ; cast avi sdf 4 Seanad eow 22 , 2Oer aan wl wid yt’ — 
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wee at t * 


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4135 


In Re ESTATE CF DORA OBERHEIDE, 
deceneed, 


WILLIAM OBEAMEIDy,  / 
/ svpeu 


CITY NATIONAL a ; 


) 
COMPARY OF CAGQ, Executor of 
) 









COCK COUNTY. 


307 1.A.544' 


the Eetate of Dora Oberheide, 

deceased, 
Appellee, ) 

MR, PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT, 

February ¢, 1938, William Cberheide filed his claim in the 
Probate court for $10,589.03 in the matter of the estate of Dora 
Oberheide, his deceased mother. April 6, 1959, after hearing the claim 
wae disallowed and an appeal taken to the Circuit court of Cook county 
where the matter was heard, substantially all the evidence being in- 
troduced on behalf of claimant. The claim was again disallowed and 
he appeals, 

The record diseloses that Dora Oberheide owned all the 
capital stock of the Oberhelde Coal Company, a corporation, and her 
three sons, the claimant William and his brothers Fred and Christian 
were officere and directors of the coal company and in the active 
management of the business. January 9, 1929, she and her three sone 
entered into a written agreement whereby she was te execute and de- 
liver a trust agreement under the terms of which ehe would aseign 
all of the shares of the conl company to a trustee. The sone were to 
continue to manage the coal business as officers and directors and 
to work harmoniously together. ‘There were to be two other directors 
of the coal company whose Guties were chiefly to act as arbitrators 
in ease of any disagreement among the sons. The contract alee pro- 
vided that "If the surplus and earnings of the “** Coal Company, as 
gertified to by a duly licensed public accountant, shall warrant such 
action, each of the second parties [ the three sens] shall vote in 
favor of the declarstion of quarterly dividends by the Beard of 





| YrKv08 nn re — 
— — 2G 7 — 

— SMT YO MOIMTSO 2HT GUAZVIaG RomMOO'O BOITAgt BNtareaad” inl 
et? mb alsin ste Softy obterduedo mabtthe ’ Wéet ,s quanadet , 
| edit" ns’ obiitn Gli $8 with at Gd? Uhl AGA Hb aaa | 
stale sit guttoed cotte .O60L .2 Lixqh .aedtom boessoed eta sBEeAIAO 
Waunod Xo0d YH Pawo suet auld of nodnd Le0qqa na ban SovolLanth aaw 
ent gated eonebtvs off Cfo yLtaldnsdedis (ued baw dertan oe 

has Dewolleeth clays saw wlalo ef? .tnamtalo te Lacod m0 beowbort 

—B od 

edt Ife bemve sbtartwed® anol Sant sesoloath Sioeet off tae 

ged Bana ,nolfatoqsos « ,ynequed In0D ebledued® ef? to Aged ithess 
nattatsd Sus bovt evedtord afd bas sellft¥ gaamlalo edt enon sed? | 

evivon of? al bea yaaqmon {200 oat Yo axotoetth daa sxoottio wir 
anoe seus ted bas oda ,O8°L .© yawns .eeentend sd? to Snomoganan | 
-05 bne ofveexe of av oie ydousdw teemeotge netttaw a otal Derasne 
agiees Bivow ose dotdw to amrsed? off rebay Saemoergs tautt & nevis 
‘od ex9ew asoe ef? estat of Ynaquee fae edt Yo nord edt Yo ffs 
Sas etotoorts bas eteoltte a2 etenteud Isco ait ganar of ounttnos 
‘ptotoents <orde ow? ed of etew e1t0dT xaddogot Ylaveinomiad wow of 
srotastidua an tee of yftelde stew eeltub eacdw Yaaquoo 200 ‘edt Yo 
~ovq oafe Toottmos edT anos ef? goome Snemootpes th te to onso at 
am .¥magmo? Inod °° ed? 10 ngatese has exiquwe ‘eat 22" sadt Debiv - 
oun Saevtaw [lade ,tnagsuooos otiduq a 0G 
ban eter Sfadte [anos soxit ont Tae aag bane 
‘to Based edd yd abacbivib ¢hsetcanp 20 a0. 










2 

Directors at the rate of at leact Twelve Thousand Sellare (912,900.00) 
in each year commencing January 1, 1929," until the death of Ere, 
Oberheide, In addition thereto the contract provided for back 
dividends for eny preceding year in whieh dividends of (12,000 had 
not been declared. 

&t the same time, January 9, 1929, Dora Oberhelde entered 
inte a written trust indenture with the Central Trust Company of 
Illinois, whereby all of the etock of the coal company which belonged 
to Mre. Gherheide, wae transferred and certificates issued to the 
Central Truet Gompany to be held by it ae trustee,and 1% wae required 
te-vote the shares of stock for the election of the three sons as 
4irectors of the coal company and after the deduction by it of its 
fees and expenses, was to pay Mrs, Oberheide the dividends received 
by 1% from the eoal company until such dividends amounted to $12,000 
in each calendar year. On the death of Hre, Oberheide the trustee 
wae to distribute the shares of stock equally among the three gens, 
At the time of the execution of these two documents, “ra, Yberheide 
was about 72 years old. ‘She died January 5, 1937, at the age of 87, 

Glaimant's theory of the case is that immediately before 
the execution of the two documents, the sons, after reading the agree- 
ment ‘objected to and refused te accept that provision of the agree- 
ment reapecting the payment of 512,000 dividends because business 
conditions did not. warrant 1t,* Thereupon it was orally agreed that 
if the dividends earned did not amount to $12,000 a year Mra, Oberhe ie 
would hold in trust for the three sone the balance of the 412,000 
after deducting the amount of the dividends earned. ‘pon this oral 
agreement being reached, the written agreement was executed by the 
mother and the three sons, 

On the hearing it was stipulated that the dividends de- 
Glared by the coal company for the years 1932 to 1956, both inelusive, 
and paid by it te the Central Trust Company, as trustee (who in turn 
paid Mrs. Gherheide), exceeded the dividends earned by $31,767.19 





=f 
(00,000, ,9f%) aualiod Susavort? oviewT teael ta Yo efax of? te arotoerta 
0TH Yo désob on? Leas * OS@l .f quawasl gatonemmos te0y dong AL 
asad wt Bebivorg toastaep odd of erat mote taba at vobtedueds 
bad 000,855 Yo ebashlveh daddy nt rosy gagbooorg yam tot absebiveh 
-betsleeb aved ton 
herstne shledred) ated on 18 Yuawas out omer 947 $4. Yojs 
“YO YRRGque? Four? Lepened on Attw wingawbat seme? metsinw o otal 
Boyroled Aotsy ynaquon Lace ad? To ADOte ot te (fe yoxerdw jstoaitit 
a6d OF Bawant avtsoliisaes bas bevzeteaswd saw ,ebLemeed® em of 
Doutuper way Th Ang.wovesad oa gt ys bled oa ot yaaquo) aaue Laxtaed 
85 enon evidt aff To nosteple od? “OT doota Te senate ad? efov.oF 
po» tL Yo 24 YE melvouded sci? teTIa daa yoaquog teen eft to auetoetse 
2oyeoex abmobiysh ed ebledied? n veq of caw snenmegne Dag.nge? 
ovo.acꝭ 08 Batayeus abnebivib dove Litew yagges , La00 9d} Ont 2208 
<Setquad ed? ebledied? .o1k Yo déseb edt m9 .⁊aox ⁊adao cao dose at 
-sm0a geqdd ed? goome yilawpe Asets to norade orld studingelh of aay 
obiediodd .ar zedacaunos ow ened? To moltwoexe edt Ye amtt edt 2A 
-T8 te egs odd ta .TECL ,G yrauast bold ade .bfo ateey AT dueds saw 
_ WRONG Clesatbames Lady at oꝛ⸗o et Yo yroem a ta⸗aꝛato wots 
‘-s01ge ed? paibaes cotta anon od? .etaemuoeh owt od? te mottueexe edt 
seas edt Iq solatvenq Sault tqe09e of Doswtet Aas of betoeide” anon 
_ Svenieud eeucosd ehnedtyte 000,865 to tnemyaq edt gnttooqeet anon 
| vent Sevtae Yifeq aay ¢1 soqueted? "ti tmetiaw tom Sih amolsibaea “i 
ode? .ax% weer 2 000,858 of tnwone fom DLS bones abapbivth edt 3 
000,814 add to goagind ed? ance gouds edd sot, taunt at dcad bivow 
{axe atas nog! .benuae whaebtyt) edt Xo aaroas edt yattoubed aoa a⸗ 
et YS Botwoexe sey vv AUST: ott bedeaer gated tacmeergs 
| enoa cords oa⸗ han vedton 
aah, abnoAtweh . oat taste hotatogtte, — —* 8 09-5 bobby 1 
“\evtewiont dtod 280 of S60L exsey, ott, 2 dys i 


) 


ES 






23 

and William, the son, claims one-thiré of this amount er 10, 680., 03 
to be due from hie mother's estate, On the coral argument it was 
Stated that the other two sons have similar claims pending for the 
other two-thirds, . 

Prank L, Hume, @ lawyer practicing at the Chicage bar for 
more then 30 years, called by claimant testified he knew Mire, 
Oberheide in her lifetine, her family, and aleo Mr. 0. I. Mann, the 
attorney who prepared the two documents; thet he was present January 
9, when the two documents were signed; that Mr. Mann drew the eentract 
and truest agreement; that at the meeting there were present Mrs. 
Oberheide, Mr. Mann, the three sons and Sophia Knoeppel, s daughter; 
that the papers were examined; that the three sons objected to one 
provision of the contract which provided for annual dividends of 
$12,000, and stated they would not accept that provision for the 
reason that the coal business did not warrant such annual dividends; 
that Mr, Mann then stated there could be no change in the contraet be- 
cause he had devoted too much time to the preparation of it and of 
the trust agreement. Thereupon Mrs. Oberheide said she would net ex- 
pect any dividends if none were earned: “I won't expect my boys to 
pay anything theydo not earn;® that with thie understanding, the con- 
treet wae then executed, Mr, Hume was the only one present at the 
meeting who testified ase to what wae said at that time. Counsel for 
claimant sought to have the three sons teatify but,on objection, they 
were held incompetent and thereupon counsel for claimant made an offer 
as to what their testimony would be, but no point is made in this 
court thet the court erred in refusing to permit them to testify. 

Claimant called Clara Slumenhagen, a daughter of Mrs, 
Oberheide and sister of the three brothers, who teetified that ih 
February, 1936, she was at her mother's home in Chicago and the three 
eons were there at the time; that her brother “Ghria" eaid te his 
f mother: “We cannot pay you the dividends any longer, ae the business 
does not allow it;" that the coal business Lost money in 1935 and would 


80,084 00% Ge Priwome ald? to Butdt-ono amtalo \don ede (mAltiiW Bae 
saw $2 fmomugra foro ov wm  etavee a reittom ald mort eed of oF 

edd sO% galbooy eatalo tsfimwie eved enon awd redid ode tad? Bevate 

my — ag 

| 402 sed ogsoidd of? ta gotetteete aseywal « ews ft aiet © st 

, oa wend of Bertuged? fasbato yd Bolla el, “be in Si 

odd oofe Sas .ufinst ved .satrevtt weit af abfediedo 
“yusuitel fatierd how of ted? intmomundh Ow? att Bexaore Orv Yortorts 

“ fenrsace Mth WoId mnaW va! fads [Domgin otow etaenweos ows ent Marte \e 
eet Pneweng wtew Sed? yettoen odf ta Gadd jtienoseya seid Baa 
ytediawab » .feqqsen® atdqo® Bas ones eatdt ott ans vil ob teduado 
efio 6f Savao(do anos cords od tact tbentwaxe otew axsqeq odd Pad 

Yo wbsobtvlb auana 10 Bebiverq doldw fostince adf to mokaivorq 
jebnebivis Lawns down tnavtaw gon bth weenterid taco odd ¥add Boeken 
sod toattmoe wi? nt ognads on of biuon ered? betato aed? anet sah dade 
Yo bas #£ Yo seftaraqeny oxtt of ontt down oot Betoveb Sait ad cause 

-xo ton Biuow sim Siae oStedwedS .e@ aoqvexed? .tnomoonges ¢ 
oF aod Yr tosexe Tow tbentas eiow onon tt ‘abaebivin ya tooq 
~Lnoo odd (gatbase srehaw 21d¢ afte dadd aces Sod op yend ‘grids Yq 
"pitt ts txemeny eno ino add anv omult at Dedwosxe ded? baw doadt 
noi Ietnyod lent? dad ¥= Stes cow arlw of aa Delti¢eed dw ynldeon 
‘Youd molteetde ao,tud yittact ence oordt oft vad of tdywos Paantalo 
“aeYo me eban Insetafo tot Leunued soqueredt Bas tneteqnoon! Blet sxew 
| nid? at obem af teton om tud od biwow uneattnet abedt’ tad of ee 
Wiktned oF wsitt tiaxsq Gt gatnston at Serco trwos sdf Fans Faso 

.ex! Yo tefdpsiad a negadnemela axel0 Selfao tuamtaro °°?” 

| Ht Susid DeLtG00% ace yerettord seude odd Yo Tetete Baw ebfedtzedo 
gerd? on? baa oysoldd at omad a*woddon Yod va eaw one .0tOl D renter a 
Sid od Bias "abate edecai "weit taall ‘eats ey ta oie oo ‘ence 
aventaud ould ea stool yin sbaebivib edt wot waa e 
' Bivow bdu S862 ni vonn Saal Caecioed debe aa ai 

















o4- 
lose sore in 1956, and he said: **You know the agreement we made with 
you about the dividends,’ ‘So mother said, ‘Yea, boys, the dividends 
that you paid me that the company 444 not ears, I am helding thet 
money in trust for you boys, and ae I promised you when we made that 
trust agreement, when we signed that truest agreement, I am going to 
give each of you boye one-third as you worked bard for it.'* The 
witness further testified she had another conversation with her mother 
at the latter's home in December, 1936, the Friday before Christmas; 
that she was called to her mother's home by her sister, Dora; that the 
mother was not well and they needed a nurse “So I atayed there *** 
for eleven daye;" that she gat with her mother in the bedroom all 
alone, “Nother said to me, *** "Clare, I am not going to last much 
longer, *** I want the household here, everything, to be shared with 
the two girs, I want you to take whatever you want, and the boye 
will get more than you will ever get, *** The beye, you know the 
dividends thet they gave me that they did not earn, I am holding that 
money in trust ae I promised them, and I am going to give each boy 
one-third as they bave worked for it,'* 

Otto A. Geretung called by claimant testified ke was in 
the business of “boiler making and heating;" that he knew ¥re. 
Oherheide in her lifetime and had a senversation with her in Oetober, 
1929, when he put a heating deviee in her home; thst no one else wae 
precent; that she asked him to sit down in her living room, which he 
aié, and they talked about things in general; that she teld him che 
and her eons had entered into “an agreement on the dividends” - the 
beys were to pay her each year; that ehe acked him if the business 
wasn't going well and he eaid "Yes, you should be happy to have 
boys that work as heard for business ag they do;* that she said: *'pa, 
if he were living today, would also be pleased.’ ‘She seid, ‘I am 
pleased and happy about the whole thing.’ FKothing elee was sald 
about the dividends at that time.” He further testified that he 
spoke to Mre, Oberheide in February 1935, when he was in St, 


| 
| 
. 
| 


; 





dtiw ebas ew Taomeewpa ent wond gol'* thtes ed baa ,8b8L af otem enol 


nbaohivibh off ,oyod eet’ Stan redeem ef ‘,abaehivib edd Suede wey 
| garld grtbfod me T euse fon HLS yeeqnoe act text om Dieq voy tat 
gas? shan ev aedw voy Beaimetg I sa bane Lstod soy Ot Gaurd at Yerom 
et palog ma i aamernge Fawte fadit hengie ow mort. Shemeetge avd 

wit *t 22 sol Ona Sodvew woy o—— 


“qodtos tad M2lv aottseterseo vesitone bad ede Deltttee? sedew asentiy 


jramfelsd) eteted ysbin'’ ede .BUCL ,sedweoed a! emad arettal att ta 


eg gad jouod .tateie ted yw euod s'redtem ted of Belleo saw ene ted? 


*e* ensdt doyate To" oorum e babeen ved? bos Liew son nsw tedton 
Lie meorbed sais at vediton ind Meby tan ede todd Mya vad seveteae® 
deme $ak-o0 utente aa cualel. ot <a of Diss aedzan® —E 
———— —D 
axed add hae tam woe tevetade ea? of wey dnaw I aatg ont sit 
edt worl way . eyed edt *** 293 10ve Libw soy nad? wrom toy Lite 
Aadd SnAdLon me T one dom Deh quae todd om ovag Yess tact ehawbived 


yo done eovig of gates se I fae med? beatmou; I ee feud af yonom 


R mp Ae lyn) 

Bi aay ud baltateet tramials yt belian yauteted A ett0> row, 
—— — 
isdeteO nk red dole sotteruewnss o hed tne ombtetel rod mt ebheduedd 
eax sate ono on dent jomod tad Mt sodved yaltact.a tug ed stmty(@8OL 
eal sho deter 07 BatvEL qed at mwah tie oF whe dedee ents Sad? venenong 
pia mid Biot osin dnt Uateneg t sgakda tpoda ↄaatas acs na oth 
aft - “ahsobivib ed? ac taemergea aa" ofa Dotetme had anos. 10d Dee 
enanteud edt It mid heaea ola fede iseoy dean ted Yoq OF eTew ayod 
svad of yquad ad diverts wey ..a0X! » bien od Sas Liew gated 3'aeaw 


aq!" shkew exte dad * eb Yost na aventawd et Aagd ma srow fast ayod ; 


ms I' \htsa edt ' bossatg of onte bivow sYahon aivit oven oot au 
Bias naw ente yakston ‘gala oAoth· sie auraa yeaa baw . } 

- advtadd Dot titast egionu? olh "coma todd te 

98 ad sew ect weddw (eRe quanta tet 


ee —— 








=Be 

Petereturg, Florida, Living near Mrs. Oberhelide's home at that place; 
that the three deughtere and the mother vere living tegether; that he 
hed a convereation with §re. Oberheide one morning when he went in to 
bid her the time of day; that she said the three daugnateres were at 

the hairdressers; that she called him *Otto;* that she knew hiw as a 
boy and asked him to sit down that she wanted to talk te him; that he 
gaiad "ll right, “a, what have you got on your mind?’ She said, ‘You 
know, Otto, the boys have an agreenent with me,' she gaid, ‘Laet year,’ 
which was 1952, *** ‘they paid me really more than they earned, *** I 
can't see why they paid me more than they earned, but they did, *** 
after it is all said and done, *** The money they make I am holding it 
for thes. *** They worked for it and they are entitled te it. *** I am 
giving it to them, '* That he then eaid “I think they are entitled to 
it because they worked for it, they worked hard, *** You know other 
eoal companies have also been in the same boat, * 

There was no croes-examination of any of these witnesses, 
Thie is substantially all of the material evidence in the reeord, 

We think the evidence was insufficient to create a trust, but 
in any view of the case we are clear we would not be warranted in dis- 
turbing the finding of the court to the effect that there wat no trust 
created. lie saw the witnesses testify, ae apparently did the judge of 
the Frobate court. #oth found against claimant and what we said in 
BDelee v. Leahy, 278 111. App. 178, we think applicable here: ‘It has 
long been well settled that courte lend e very unwilling ear te 
etatements of witnesses as to what dead people heave said,* ‘ee also 
In_re Zatate of Carlson, 286 Ili, App. 61 (affirmed Koreen v. Sat. of 
Gaglson, 365 I11. 462); Lea v. Polk Vounty Copper Co., 62 U. 3. 493; 
22 Corpus Jurie, p. 291; Leurenee v. Laurence, 164 111. 567; Flerke v. 
The Elgin City Banking Co., 566 111. 66; in re ‘state of Jianson, 504 
Till. App. 157; Hegginson v. Meggineon, 367 Til, 164, 

| In the Moreen case our Supreme court said: “In an action te 


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RS ey 
el stadt Pred wget patved ec@w rettom arid ius —R souls adi? eid tudt 
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i * as ary? 
} $a sree etetdnwab sould ond Dien ede gaddd ivan to entt ‘att ed Bid 


‘ 
Siitvewihe Tara? 


& aa ald wend oie toads * porro" nis helina ode tat — 


on tact add of Atat of bosnay sue tadd avoh 32m of mid Dexten 
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of Beltigne exe Yedd Aniad 1° bisa aoa⸗ od tad? *' made | ot 0b coteke 


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so29 wedR 
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| 

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03 128 gatiiiwns — * ‘bnel —— dasa bolrtes "8 Low mood 

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bo 

recover against an estate upon an express contract to make 4 testa- 
mentery prevision, uncontradicted testimony may be rejeeted if not 
@lear and convineing. (Mekeon v. Yan Slyck, 225 ". ¥. 398.) Thie 
court, in Laurence v. Laurence, 164 111. 567, well said: 'Svidence of 
admissions made by a person since dead should be carefully sorutinized, 
and the cireumstances under which they were alleged te have been made 
carefully considered with all the evidence in the case. ‘uch evidenee 
ie liable to abuse.’ The Supreme Court of the United States, in Les 
v. Polk County Copper Co., 62 U, 3, 493, observed that ‘courte of 
justice lend a very unwilling ear to statements of what dead men have 
gaia,'* 

Thies rule of law is particularly pertinent to the testimony 
of Clara Blumenhagen and Otto Gerstung,. Clara's teetimony ie that 
she talked to her mother in February, 1936, and December of the same 
year, in which convereations her mother said she wae holding the 
money in trust for the boys as she had promised to do when they made 
the trust agreement. This was more than seven yoare after the scon- 
tract was made and this witness further testified that the nother 
said: “I am going to givemach boy one-third as they have worked for 
it,* which if true would only mean she was going some time in the 


future to make a gift of the money to the boys, 

The witnees Gerstung's teatimony was that he talked to Mrs, 
Oberheide in February, 19553, when Mre, Oberheidge wae holding the money 
for the boye and said: ‘I am giving it to them.* We think this 
testimony was wholly ineufficient to establish the contention made by 
the olaimant that a trust had been established for the boys by their 
mother in 1929, 

' It must also be borne in mind that attorney Mume, who knew 
the parties and who was present at the time the contract was executed, 
makes no mention that Mrs, Oberhelde anid she would hold any exeese 
of dividends paid to her in trust for the beys, is testimony is that 
she seid: “I won't expect my boys te pay anything they do not earn, * 


Se that the testimony of this witness can in no way be said to 
ectablish the creation of any kind of a trust, 


The judgment of the Sircuit court of Seok county is affirmed, 
Matehett, J., and MeSurely, J., coneur, JUDGHENT AFFIRMED, 


ale 
atest # oles of toasdnee avenge: na neqy Boatse ae tanlays “aveoet 
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es ie gen 







41304-41590 
CHARLES H, ALBERS, Reeeiver, ete., 





pellee, 
% APPEAL FROM 
ANDREW H. DRESSEL, et al. SUPERIOR COURT, 
) COOK COUNTY, 
ANDREW H, DRESSEL and JULIA SCHANZE, 
3 Appellente, 
e Consolidated with Consolidated 
BERNARD HORWICH, ete., 
Appellee, 
= T 
: APPEAL FROM 
ANDREY H. DRESSEL, et al, 
CIRCUIT COURT, 
ni ‘g COOK COUNTY, 





ANDREW H, DRESSEL and — — 2. 
07 LA. 544 
WR, PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT, 

By thie appeal certain defendants seek to reverse two 
decrees entered in foreclosure suits which have been consolidated fo: 
hearing upon one set of adetraste and briefs, 

One of the suite wae to foreclose a trust deed given by 
Andrew H, Dressel on one-bslf of his farm to secure an indebtedness »: 
$45,000, and the other to secure an indebtedness of $35,000 on the 
other half of the farz, 

Counsel for defendants in this court say, "There is no 
quostion made by this reeord in this cause upon the evidence, The 
matter was tried before Master in Chancery, a report by such Master 
| Culminating in a deores of sale, 
¢ P | "The question here involved is one of pieading. one The re 
: is no allegation of possesston or ownership or right, title or inter 
‘ est in and to the note and indebtedness in question alleged to be es" 
| forth in either of the ¢omplainte,* | 

In support of defendents' contention counsel say, "The one 
question involved in this proceeding is the failure of the pleadings 












.ofe ,seviees! ,SAS5JA HB BR) 
welteggh A 



















(aaa " 4 


“BRE AL FO * 


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ee eR ab: view 


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’ 


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Soe wah wet 


seietnd bow agaantedn 36 100s 
4 ih ee ie ee ae 
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Kieabersehal na eruose of wet aid Yo 
7 2 See —— 


To Pav), 


om al ouedT® vat Pues ua ¢ nt —— ‘a ee 
pal? ——— J— 
a⸗⸗ux euOgeT' me ¢ Berae nae 
| — pA E- 
weet eve sautbae ky, * * xa 99 
ee 8 —— we. 4K eae 
a of 6? Segelia apices A — u — i ae 


— ale ee —— ae ar — 


er 


my oan 
te show any ownerehip or title to the chose in action, A careful 





J eorutiny of the pleadings, to wit: the original bill of complaint ir 
the Superior Court case and the amended bill of complaint in the 
Circuit Court case fail utterly to show eny right, title or elaim in 
the plaintiff against the defendant or any title or ownership of the 
| note in question to be in the plaintiff,* The argument seems to be 
that because of the failure to allege ownership of the notes and trur 
deed the decree cannot stand although the evidence may show the owner- 
ship of the notes, 
This is all the argument in the brief and no reference is 

| made to any partioular allegations of the bills, but we are left to 
search the record to see whether counsel's argument is supported afte 
we examine the cogplainte. It is not the duty of the court to searc: 
through the record to see if it can find errors in the allegation, 
This is the work of counsel and the decrees appealed from might be 
affirued without saying sere. However, we have looked into the 41~- 
fey. legations of the complaints and find that each was brought by the 

reesiver of a bank which was being liquidated, and in each copies of 
the notes and trust deed were attached to and made a part of the con- 
7 plaint and the receiver alleged they would be produced in open court. 
Ia one complaint it wae alleged the receiver was the owner and holder 















of the principal note on which there was a balance of $40,000 due an° 
enpait, and in the other complaint it was alleged there was now due 
the complainant $55,000 on the other mortgage indebtedness, There * 


ao ete in the contention, The production of the notes by plainti: 
in the two suite wae prias facie evidence of ownership in plaintiff. 


Hendereon v. Davieson, 157 Ill, 579; Dillon v. Elmore, 361 Til, 556; 
Karunas v. Wright, 286 Ill. App. 554, Wo objection having been raic: 
i ia the trial court to the suffielency of the pleadings, it cannot be 
— urged ter the firet tine in a court of review. Brandtjen & Kiuge, 


" — te — 299 TLL, App. 585; ⏑—⏑ eeàO— 



















J— 
—D—————————— * —E—— ae 


Ree La gwoe Tek L2e Dan fy te a eae an ibanig ode te , 

mio al teleljios Te 11:0 Beceee er Bae 0660 eee — 

Hi eiale <0 ol? \thgia wie wees 1 

SA de Qitwiorws ad nists Tas ee — ten at tee leon bt ie 

aot saves Srancpua off: * oe lganup ak 
‘pa Dea seton-ec? to alseyemes. ogelia of ste heay ete tee ee 

‘wie of? wore tom sonebive sc) “tyuany le Bnatel onkad: orveeh ett 

—— 

286 Sea Tele * Mf — ou 


Megha oY faveg act te utut ode som Ne ee — keaze 
pecigegetia edi st et0Tae bald see S232 eat-ae ⸗en si , 
b@ Piste mort Seloegqe aseteab oof Boe eanwen Yo ros ons 
~ ig Git 9861 Dedoel ove om sovetel conde galean Pmeeld 
it yd teyuerd wav dose rndt Sat ‘Dee, tetbneeed adhd 
“aiwatgee dene wi Don ,detehtiptl paied Saw ‘nota * 
VSN Rt Ye Prog 6 shew Deo of Setoud a \ de nae” earn 
TARHe, nege nt beecheng of Divow var desert te tte 
led Dee rene eit oe mevhewer sn heyetia ew — 
—————————— do deter ne ite 
Sah wen saw sted? bepetta aa 82 ta tatgnee dete s da" 
\ myn?  .enonbetdetel @yagerod iadee ere 
TEPAgat yo eeten of? 16 netiouteng edt- us 
— t qideseqvs to conedtes elost ax: 74. 
85G git 180 phon yt goMied 1006 iin 98E yg 
⸗em netreatte x * — 





~3- 
Replogle v, Seost, 299 Ill, App, 270, 

In the Brandtjen & Kluge, Ino., lid’ dep eaid: "The « 
ficiency of the statement of claim may not be raised for the fire 
Sime in the Appellate Court, See, 42 of the Civil Practice Act. 
110, par. 166, Ill, Rev, Stata, 1937, provides: '(3) All defect 
pleadings, either in foru or substance, not objected to in the tria! 
eourt, shall be deemed to be waived,'* To the same effect is Adda: 
Ye Pompilio, 503 Ill, App, 172; Toman v. Park Castles Apt, Blig, 
SOS Tll, App. 2063 Grau v. Trav, Ins, Co., 303 Tll, App, 212, 

The ground alleged for reversal is frivolous and wholly 
without merit and it is clearly apparent the appeals were prosecute: 
merely for delay, 

The decrees appealed frow are affirmed, 


| DECREES AFFIRNED, 
Matchett, J., and MoSurely, J., concur, 


—R 





= ; an J 
J i.) 
* — —F 
* 3 — 
J 
Ae 
a — — 
— & SAR ¥ :* 
7 * 





— — | er 





41452 
| « DAGNY KIZRRMAR, 


) 
SiN Blige / 
i ) 


f A SUPERIOR COURT, 
— 





COOK COUNTY. 
STREET BUILD [ug CORPORATION, a 3 0 — 9 A. 5 A 5 
Corporation, 


MA, PRESIDING JUSTICE O'CONNGA DELIVERED THE OPINIGH OF THE COURT, 

Plaintiff brought an setion against defencants to recover 
damages for personal injuries claimed to have been sustained by her in 
@lipping and falling on the walk in the entranceway leading from the 
#idewalk into a butcher shop conducted by defendant Kypres, who was 
the tenant of the other defendant, the 1255 Kast Vliet Street Building 
Gorporation, There was a jury trial and « verdict and Judgment in 
defendants’ favor, Afterward the court set aside the Judgment and 
verdict and awarded « new trial from which we have allowed the 
Bullding Corporation to appeal, Kypres the other defendant is not 
before us. 

At the conclusion of the instructions the court submitted 
two forme of verdict to the jury, (1) “We, the jury, find the defené- 
antes not guilty,* and (2) “We, the jury, find the defendants guilty 
and assess the plaintiff's damages at the sum of Gollars.* 

The recoréd discloses that at the conclusion of the ergument 
of counsel, on plaintiff's motion for a new trial, the court aaid: 

*Ag one of the grounds for a new trial, plaintiff urged in substance 
that the court erred in submitting to the jury only two forms of 
verdict, one, finding both defendants guilty ang aesesemeant of 


damages; and second, to find beth defendante not guilty. 
 - *?n sonsideration of the foregoing point, the Court guetaings 





 WRUOO ANT to MOTEICO ser canavras AGRMSO*O SOLTAVL ueraraans — , 
revood4 of atmaineted tratags aolton aa titguend Wtatelt * 
af — 
ot wort gathaal yaweonmutee st at diew edt x0 ymttfet baa yataat 
aw ‘ie ⸗⸗— · 


— ae oe 


ai Gnomtot aa sotsasy « Seu Cate Yeu, 6 naw ound — 
———— ot ebtad toe twos ot Bameret tA 
i ado bowotts sid ow dokme mot fated wen 0 Debaaea wT 


— - taahasteh sacte olf verven Leagan of —— 


best tedue $4099 oct anektourtan! ade te —— exit tA © i “ 
— edt Hart seuwt nats ow (5) — * 





2 
the eontention and grante o new trial herein sclely on the foregoing 
ground, * 

There 12 considerable argument in the briefs es te whether 
éefendante were charged in the complaint with Joint negligence or 
whether, af counsel for plaintiffs saya: “it should be noted that 
the Declaration and Amended Ceclaration charge beth defendants with 
two separate ani distinet liabilities. The ocoupant, Kyproe, ie 
charged with general negligence, The other, the petitioner, the 
owner, is charged with leasing defective premises with knowledge of 
such defect, etc." ‘ounsel for defendant, the Suilding Corporation, 
say that under the evidence it was entitled to a directed verdict at 
the close of all the evidence because it showed there waa no negli- 
gence on its part. for the purpose ef this decision we shall seseume 
that the ceuse wae properly submitted to the jury. Even if the 
eomplaint cherged defendante with joint negligence, yet the jury sight 
find one defendant guilty and the other not guilty. Linguist v. 


Hodges, 248 Ill. 491; Sovenant Club of Chicago v. Thompson, 247 [11. 
App. 122; Skala v. Lehon, 288 Ill, App. 262 (affirmed 543 111. 602); 
Pearlman v. ¥, 0, King Lumber Co., 302 T11, App. 190, 


It te conceded that verdicts should have been submitted to 
the jury so that it might find either of defendants guilty or not 
guilty and if counsel for plaintiff was without fault in the two forne 
of verdicte which were submitted, the motion for 2 new trial war 
properly allowed. Sut counsel for defendant say that before the jury 
retired the record discloses that defendant's couneel who was trying 
the Case requested the court to submit additional forms ef verdicts eo 
that either of defendante might be found guilty or not guilty but that 
this was objected toe by counsel for plaintiff, and therefore he cannot 
take advantage of the error complained of. Counsel for plaintiff says 
that when counsel for defendant requested additional forme of verdict, 
the jury hed retired and therefore it was too late, but we think this 
is not borne out by the record, 


=f- 
gaiegese? «iw ae ylefes slesed Iefad wen «4 ataatg Sna nelstactnee ed? 
® ,baworg 

sodtects of a2” atebud ed¢ at teempaye eidarshienes «af oxved? 
“eo sonegiigens tatol dtiw tuleiqnes adt af beyteto oxV|w etnahaetad 
Sad? Retea af Siveda gt tayau attetately «ot fonnuoe ce rods odin 
idiw atasbaeted Sted eyrade sektenaloe’ behnems Sne nolsaraloet off 
ef ,2ocuye .faequees of? aati ilidall Ponstets Dae etarsqee out 
odd yremoltive est ,tedto edt -oomegtigens Lareaey dt iw begeede 
Yo egbelwonwt dite seetmets evitested galeasi Athy Sogzade a2 yeoned 
oltereqre! sAleitue eft seatoe'ted ret Lmanwod ⸗ete oerot Howe 
ta tolbusy besneuts * of Seltiine eaw f eonnbive ont aeda⸗ ‘ete 
=! fgen on saw oust Soweste #2 eeunsed sonedive edt Sis 20 sole sdt 
SRA a a Aaaa av aota tosa otdt Te on ogug ou⸗ 6% 18g ess ae essed 
eft 22 nevi Het ola of Detetmdue iaeioꝛa va ·voo edt tae 
| state Yul ads Foy ,ronsal (jen satoy sttw etaabaeted degrade tn 


v —E -Vilieg ten xo? © oat bea wituy enapared a0 mech | 
LIE TOS .ggngmegt © — 2e dxf taaneved itor LET G88 a8 ae ej 
{908 .£11 605 BomutTrs) 888 .aah £01 aes Mood .¥ aiawe 188i sy * ; 

. (OE qk . fit 80% — 
of »»»———— 













* —D——— 
ton vo ve aun as raba⸗dad Ye Aaeacie Lo batt figs tt Sade on wut, it 
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ayy Mit 


naw {eitd wen 2 ae? sotto eit bert Ladue one — — ——— te 


seed 


2 

3 

| : 
wast ett ovoted tadt Yas tashneted 0% tosausn con sRowolla ‘exoore i | 


Fr) 


: “galyrd nsw ow Lonawoo u'tanhastoh sada sevoteats duoc ons 24 
ea atottaur to amio% Senos ibbs tiedun oF woe acta Detnesper onee | 


* 60 J 
tane Sud ysitwe, son se ling bawo? od —2 stnabaoted * odtte t1 “a 
i tonnan od eroterads ban Mutaiala a0? feanues ee oF ‘boroatds 
ayan iaata lꝗ 10% fenewed te bentelques storie oat ‘te wnan⸗ ot 
——— te art Lanele tba Degeouper tnabueted and maw ⸗⸗ 
‘eae “Hnbst oy Yi \OPAE cod naw 9 uerenedD | a 


She set 
ebtooes aft hin ; 









at 8 








The reeord Giselores that after we jury was inestrueted and 
the two forme submitted, as above etated, Ahe exhibits were gathered 
up for the jury to take with them, the court e214: "All right, You 
may retire, ladies and gentlemen, (The jury thereupon retired, ) 
(Biseursion ty Court and counsel off the record.) The Court: 411 
right, aeke your point. ir, Wright [eounsel for defendant Building 
Serporation]: I want the record to show there are only twe forse of 
verdiet going. I think there should be a form of verdict for each 
defendant. The Court: Wo, I think 1t is a joint suit. There should 
be a joint verdict. Hr. Nerzon [plaintiff's counsel]: It is a joint 
mait, I agree with the Court, *** Hr. "right: I objeet te the forus 
of verdict sent by the Court te the Jury room with the jury, for the 
reagon that it would be impossible te find one defendant only not 
guilty end the other defendant guilty. The Court: I think it should 
be a joint verdict. Mr. Wright: And I object to sending joint verdicts 
only. Mr. Budnick [counsel for defendant Ayproe)}: T object to the 
Court sending one type of Not Guilty verdict to the jury on the ground 
that it is not in harmony with the instructions given by the Court, 
which pertain in ecome inetanoes to each defendant separately, and aleo 
because it deee not permit the jury to find one of the defendants not 
guilty. r. Wright: I join in that objection, too. * 

The Jury returned their verdict on the same day, Spril £5, 
1946, finding defendants not guilty, Afterward counsel for plaintiff 
filed a motion for a new trial epecifying, among other grounds, that the 
court erred in submitting the two forms of verdict. The sotioen war 
overruled July 1, 1040, and on the next day plaintiff moved to set 
anide thie orter, The matter wae heard July 8, the motion for new 
trial suetained, and this appeal followed, 

On the rehearing,July &,o0f plaintiff's motion for a new 
trial counsel for the Building Serperation called the court's attention 


Sa 


> 


. bas betewsteai asw ys), ol vette Tadd neeelostds brooes eT 
——s beteddéag oxsw stididne och dodate oveds eax bese indus amrot owt odd 
eX .teighe LAY :kten Savon od? ancitostay aaied ot ut st neh ay 
; (.beatter mogueredd yuul, sdf) .nemalseoy boa gethal orton yan 
fa teawed ed? (.tn909" add WhO Loonwee baw Pxw0d yh moteawonsa) 
yatblin teabaetse «oi Leanwoo) Sagia’ eM .tatoq as0y eam  tdgls 
Yo satel owt else ous exeds wore of Breet ode taaw I i Laettwroqued 
dose x63 Jolbisv to oot » ed bivode exedt ankdd I .gakoy soLinev 
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sare? ad? of sonido I tadgiaw sch °°? .saye0-ed? Ao tw conge L atkee 
ed? 102 ,yuet ode itv moon yuu, ed? of Sage9 at? YS Inon, FoLdtev Bo 
ton {ino fasbaoleh sno dat? of elétancqnt od Sivow $2 tad? monaen 
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adoibvoy Sasol galoaee oF toeido f pad iidytsw sah Sesto takel med 
| ot of Sonido T t[vougyd taebasteh rot Leaswoo) dosadwh cM - yao 
| bavoTg eds RO GeUt ad OF ToLBeev EFLiwe POH te eGYT sno getbase (tawed 
.awod edt yd sevle enettowntent edg ative yaomied oh ton et @2) tend 
eats baa \yletaiages @nabasled doae oF eeanatent emos af atetaeq dotdy 
fom efaadasted odd to ane Antt of vat ed? Phareq Pom oved th onwaned 
—“ *,ond lae fade at atet I sgmyin’ sh. ee hdep 
GS Licgt , yah ewma odo we tadbuey sied? bensutes yal ef. “oe 
| Wtalele 19% Loraveo buewtedtA .yelivy fon atasdasied gatsal? ,Oses — 
| off fadd ebayer tedte anomayamiytiveqs Lata? won s sed notten a dole? 
OR OLSom edd .oLiuEy Te eeTOt owt odd galetiadus wh devise tumOe 
$98 08 Bevor BUtdatele Yad exon sd? mo dng (ORL 4L Vive deLereno 
wen 10% colton en? .6 Vint Sraed new Totten ed? ,1ebue ald? obies 
. -bewolle? Losqga sist bas’ ,benketeun. Latat 
Wee @ Ot aoljom af Mitalsle te,@ Tink palroedet sx? ad anew east 
taedta e'iquos adg belie nekteroqnod yataliat ed? aot Leanwoo Late i 
Jrsoows ate xd ory — aot 




















a 


ote 

to the fact thet he had cbjected to only two forme of verdict being 
submitted to the jury and suggeeted others, but that counsel for 
plaintiff eaid: "So, the forme of verdict are proper." Counsel for 
plaintiff then eaid that the court, after instructing the jury “un- 
beknown to all counsel in the case, submitted two forme of verdiet *** 
Immediately following thie submission of these two verdlets er these 
two forme of verdict, the Court instructed the jury to select a fore- 
man and retire te proceed with the consideration of the case, 

‘Just at that moment counsel for defendant objected to the 
forme of verdict, and there was discussion between the Court and 
eounsel, in which diseugsion I have aleo joined as counsel for plain- 
tiff, and I suggested to the Court that it is a joint suit, 

*About that time, if your Honer please, the jJurore were 
rising, and while this discuesion was going on the Jurors retired to 
their jury room,” 

From the foregoing we think that the failure to submit the 
additional forme of verdict to the Jury was brought about, in part, by 
eounsel for plaintiff before the Jury retired But even if the jury hed 
Just retired, 1t would not have been too late te submit the other 
forms, before a congideration of the cage was begun by the jury. 

Sinee the verdict returned wae againet plaintiff we think, 
under the clroumstances, she ought not now be permitted to contend 
that other forme of verdict should have been submitted to the jury. 

For the reasons stated, the order of the Superier court of 
Cook county awarding a new trial Le reverced and the matter remanded 
to the trial court with directions to enter judgment on the verdict, 

REVERSED AND AEMANDED WITH DOLARCTIONS, 
Matohett, J., and MeSurely, J., concur, 


<f= 
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otse adv to mekiagebience afd dgiw Beeneng of euizon baa nae 
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«bag F209 ede geayied molesvon 25 nay oradd baa \Sodbuey 20 aured 
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($e dquee welts asf Te tebre afd ~boTada anonaet alt wAT ic 6 bolt | 
bednanes tefdaq odd das Sowneves at Latw wen a gitiaswa Wanco dea) 
Joliiey of 10 Aeemphut cede ot. eminent ; 
| BRORTOGAT BREW GAGHANAA GRA GRAAENEA oo nim eke OR tom J 


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? datlam opeheyoune) pada Lixh, eto coe? deem), 





Appellant, 


WA. JUSTICE HefUSELY DELIVERED THE GPINIGH OF THE COURT, 

Defendant, ino jury trial before a Justice of the Peace, 
was found guilty of violating the zoning ordinance of the Village of 
Oak Park and fined #25; she appealed to the Criminal Court, where upon 
trial by the court she was again found guilty and fined 226; she 
apreals to this court, 

Seetion 929 of the soning ordinance divides Oak Park inte 
four use districte. ‘ection 930 defines Residence Pistrict *A* as 
permitting, among other things, “Dwellings, provided also that such 
Gwellinge shall be arranged and designed for the exelusive use of only 


one family.‘ Defendant, who lived in a one family dwelling in 
District A, at 1026 Superior street, Oak Park, wae charged with vio- 
lating the ordinance by using another building at the rear of the 
premises as a three family dwelling. 1 

The entire zoning ordinance, passed in 1921, wae placed in 
evidence, ‘ub~paragraph 435, e¢eotion 35.09, Article II defines a non- 
eonforming bullding or use as one that does not conform with the 
regulations of the use district in which it is situated. ection 924, 
dealing with non-conforming uses, provides: 

"The lawful use existing at the time that this ordinance 
takes effect of a building or premises may be continued, although 
such use Goes not sonform with the provisions hereof, 

“Any building existing at the time that this ordinance takes 
effect, arranged or designed, or at that tine devoted te a non-con- 
forming uee, may be reconstructed or structurally altered, provided 


such structural alterations shall cost an amount not to exceed fifty 
(50) per cent of the value of the building, and provided alse that the 


. 





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building shall not be enlarged unlese the use thereof is changed to 4 
conforming use, 


"A non-conforming use way be changed to a use that is per- 
mitted ** The ume of a building or premises shall not be deemed to 
have changed because of a temporary vacancy or change of ownership or 
tenancy, however, the suspension of & non-conforming use shall net be 
regumed after a period of conforming use, * 

The present complaint wae filed some time after plaintiff 
ha@ granted a permit to defendant for alterations to the rear building 
and after the work was completed. It wae contended by plaintiff thet 
at the time the zoning ordinance was paseed in 1921, the rear building 
wae used for the occupancy of but a eingle family, whereas defendant, 
after the alterations, was unlawfully using it ae a three family 
dwelling. 

Defendant contends the rear building was non-conforming when 
the ordinance wae passed; that it wae then and ever since occupied by 
more than one family; that the village acknowledged the building te 
be non-conforming, af, when application for alteration to the building 
was made by defendant, shortly after she purchased it in August, 1938, 
the permit wee issued for an alteration to o non-conforming residence, 
not to exeeed 50 per cent of the velue, and the village through ite 
inepectora knew of thie during the alterations and approved of then 
almost a year before the complaint was filed, 

We are of the opinion defendant has failed to suppert her 
position with any convincing evidence that the rear building was, at 
the time the ordinance was passed and ever since, oceupled by more than 
one fauily. On the other hand, plaintiff's evidence supports ite 
contention of s single family occupancy at the time the ordinance was 
passegé and ever einee, until the permit for alterations was granted, 

The only testimony for defendant in support of her conten- 
tion that the rear building was oceupied by two families at the time 
the soning ordinance wae enacted in 1921, wae that of a Hr. Peal. He 
testified that he had lived in the neighborhood and had been acquainted 
with the premises about 25 years ~- back to 1916 or 1917; that he knew 


te 


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® of Bbegnade of Loered? oan anf tealaw Beyisine of ton Ifans goLdilind 
see Bo leretnes 

“req at tad? sev 4 of Degaasto od yen ony gotirdtes-pom ay” 





‘ ay 
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gps cla — non a te nolenoctae od ey —— — 
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(tals Wbtndela W Sebaetno saw 1. Hetetqnoe naw sxow out cette Sna 
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Yiewl cows # oe ti goatee Yllotwalow saw ,enolsmresia ant soo te 
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; Heth aay Satasanos ed? sxered xaey 2 teomia 
asd Sxoqaue of beLial sed tnabneteb notaiqe ed? Yo o1m OH 
#o any galbited aeex ef? Yaclt eanobive yatonivecs yaa Msiv nolttaog 
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. asi atuaqqua sonebive a'tistntelg ,bnad sedte edd Ad. 
saw sovanibue add emt edd ta yonsqwese Ylimat ofgnis. « oh wattantnte 
— saw eaoltaxs) ia xe% Fietny BMY L1PGN bon ta reve, Pitas | 
TAOTERD, 508.20, FROUMR, e ·e —A 
| salt ont ta botlinan ond Wh Batquode, dav yakh tks an 2 cw? ol # 
oH tat .W § to Patt vow ,180L ot Botoetin naw 96 pan rho | A . 
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the occupaney of the building on the rear end of the lot during all 
those years; that he delivered groceries for several fires and made 
Geliveries to people in that building. Counsel for defendant then 
agked, not with reepect to any particular time, if he Enew the names 
of the people who lived there, “the two families who lived in the 
building?* To which he replied, “Ho, I &id not, no, no, I don't re- 
menuber the names.* This was the only question pertaining to a “two 
family* oceupesncy asked of thie witness, although he said he was 
acquainted with the ceeupaney of the building during all tlose years, 

When the building alterations were being made in 1938, he 
was employed by the contractor whe did the work for defendant; he did 
not know whether at that time one or two families lived there, Although 
this witness testified he lived in the neighborhood, he did not give 
an address or his period of residence there, 

Defendant teetified that at the time she bought the premises 
in August, 1938, there were two families living in the rear building, 
one upstairs an@ one downstairs, and that shortly eftervard the 
people downstairs moved; that at the time this complaint was filed 
"there were three individual unite living there then, * 

Ruth Rankin, ® real eatate agent, testified for defendant 
that over a period of four months before she sold the preperty te de- 
fendant the building wae occupied by two fanilies, 

Charles Van Kirk, who has lived in the house west of the 
defendant's property since 1924, testified for plaintiff that one 
person occupied the rear house for several years, followed by a 
married couple - afterward another married couple. 

Mee, Vasey, whose daughter in 1938, wae looking for an 
apartwent, testified for plaintiff that in thie building there was 
just one room upstaire, over a two car garage. 

befendant testified that when she purchased the premises 
she began to clean, repair and fix up the premises and went to the 
Village Hall and got the permit for alteration; that she had a con- 


8 

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obas doe eet? Isuerer 10% sefteootg Serevifeb ed tad? jersey eae “3 
“ged? teebretob 20? Seamed .gathited tadt a} efqoeg of settaviten 
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getg fea BE ad .boodredMaten oft at Bovll of Bottivasd esentin ald? 
shes, ous? sonebieet Yo belaeg aid 20 bnddbbe hh 

| aootwerg s8Y tutgwed odn omit oft ta ade Bortivacd tasbactet “O° °°” 
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) — ———————— — 

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-4- 

vergation with ‘ir, Walle, the building commissioner, who told her the 
permit wae iesued for ea building that wae put to s non-conforming use, 
but he did not say anything about the use of the premisea by one 
family only, or how many families might oceupy it. The alteration 
called for five or six electrical fixtures and outlete in each reom, 
five plumbing fixtures, a gas hot water heating system with six 
radiaters, and a rear stairway te the second floor. 

Ky, Walle, testified that defentient came to his office and 
asked what wae delaying the alteration permit; he explained there was 
some question as to the use she intended for the property; that hie 
inspectors had teld him she wanted to make a studio on the second 
floor weet; it appeared to him from the application for plumbing fix- 
tures on the second floor, where there were existing plumbing fixtures 
for the family that wae living there, that there wee going to be more 
than ene family using the premises, and 1f that was the intention it 
would be a violation of the zoning ordinance. He said defendant in- 
formed hima that she had no intention of violating the ordinance; she 
wanteGd to meke a studio out of the second floor west in order to carry 
on her work in music, and aleo te provide better facilities for the 
family occupying the place at the east. The commissioner, after 
hearing defendant's explanation of the use she intended for the 
property, #aw no objection to issuing the permit, which was dated 
Qetober 25, 1938, 

My. Wileox, a plumbing inepector, had several conversations 
with defendant, and in one of these, after the permit wae issued, she 
said she thought of finishing off the interior of the second floor 
west into a room she might use as a studio, and asked if that would 
be allowed, and was told by him that if she was going to use it her~ 
self it would be all right to use it as a studio only; thet he later 
went to her house and asked if she was finiehing off this quarter on 
the west aS am apartment and she said she was not. He explained that 





ent * biet adv .iwnetselamoe gulditud eld .eiles ah Agtw Rott antay 
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19081 buoeee en? of Ymertote meot & ba ,RwOvathen 

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ant tnghusted dias of -soanatino patnex ont Yo aotaaloty ↄ od Lupe 
edn jecuanibse ↄat gnitatoiy Yo medtuedas oa bat oie 2nd? mts Domne? 
xraas OF Ushi at dee tool? Baepss as? to tuo etbude # oxam oF botnaw 
ed? 207 seitiiton’ aesjed sbtverg of cade baa ,oteum at Atow xed m0 
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botab sew dolce .timteg ad, aaianat. of —**—* — 
vy ARES 2B, TOOTS 
one itawcevaes Laneves bas — — — seat Wess’ ntwiek 
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se0l? bnoosp oid Yo xelnegnt odf Y20 gatdeiat? Yo sawed? oxie Dien 
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Tait bentatexe ol, ofOe, ay, ot Mian, Of. DOe BPINEGR.O*: BERRA 

















=5- 

4t woulé be sw violation to sllow anybody else to live in the building. 
She then seid thet when she bought the building the realtor #aid she 
would be allowed to finieh off some roome and rent them es living 
quarters in the rear, and she figured en that at the time she bought 
the house and Gid not know how she was going to meke paymente for the 
house or make ends meet unlees she did, 

‘. Guinlan, an electrical inepector, examined the premises 
several days after the application for the permit wae made, at which 
time one tenant lived on the east side of the second floor and the 
reet of the building was unoccupied - the ground floor wae fitted for 
wut not at that time used as a garage. He later made numerous ia- 
spections, the last in October, 1959, when the first fleor east was 
used as a boiler room and for storage space, the second floor eart 
used by the same tenant ae before, and the upstairs and downetaire 
on the west occupied by two separate tenante. 

My, Bartels, the pbuilding inepector, examined the rear 
premises in June, 1939; through the center of the building leading 
from the first floor to the second was a stairway inside the building; 
it then housed three separate families, with the east lower floor used 
fox storage. Vefendant at that time told him she had the same parties 
living there as were there previous to the time when she bought the 
property, but sinee then had made two additional rooms, The witnese 
next inspected the premises in September, 1939, and told defendant that 
im the opinion of the village che wae violating the ordinance, and un- 
les# she restored the building to ite original statue as being oe- 
— by only one family, the village weuld progecute,. 

There is nothing in the testimony of defendant or of the 
building commiesioner, Walle, or of any other witness, nor in the 
actions of any of the inspectors, to indicate that plaintiff, through 
ite agents, acknowledged the building as non-conforming for wore than 


a single fasily oceupancy and approved of the alterations fer any 
ateterent aan. 


ee 
| “anidtind eg at evil of eafe yiedyns wolis of nettafotvy 2 ed bincew ot 
eis blue “otlaes ond galbiiud edt tdgwod ore nonw fady Slaw ned¥ ont 
gaivil sa sed? tet ban tamer omer Yio Maiatt ef bevetle od bigew 
tigued ate eff adv ta ¢edt ag bers tt ois one , Teer ad? of eteoreup 
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| ——— ——————— — 
.sduogeet¢ Bivow oyatity od? .yfina? sao tine yt Bete 
silt Ye x0 Ynsbusted Yo wromBtacs wid Ht gutdecn wf ered °°! ©) 
edo af son event ty ueiife yaa To to Velie’ tonoten inwoe SatB Live 
dgwows ,Tiivalalq tai? etsoliat of wrofooqent ody To yne “Bolen : 
nat oxox 10% —— ata | 


—— 








-6- 

It is argued that the inepectors of the village supervised 
the repair work ae it wae done under the permit in question and must 
have known of defendant's intentione with respect to the alterations 
by reason of the quantity of supplies ordered and, in effeet, defend- 
ent therefore should be relieved uren the theory of an estoppel, 

Ne referenee is made te any evidence whereby 1t could be 
seid that the inspectors were given any reason to believe the repairs 
and alterations were being wade for the use of any more than one 
femily in the tullding. UCefendant assured the inspectors that she hed 
no intention of violating the ordinance, This aleo was her reply at 
the time her permite were secured, when she was informed by the 
building commissioner that an extension of the single femily use would 
be a violation of the zoning ordinance as it applied te the non- 
conforming building. 

Ae we have already eaid, defendant hae failed te support her 
position that the rear building was, at the time the ordinance was 
passed, and ever eince, occupied by more than one family. it is not 
unreasonable to believe, according te the testimony of the plumbing 
inepector, #ileox, that defendant unfortunately hed relied upon the 
advice of the realtor at the time she purchased the premises, namely, 
that she would be permitted to finish off some roome in the rear 
building and rent them ae living quarters, It was not until rome tine 
afterward that she made application to the village authorities for a 
permit and was informed of the soning regulations, 

Defendant next complains the trial court should have allowed 
her to teetify as to the character of other buildings in the same 
block and te show that certain alleged orders and directions would 
result in unfair diserimination to her without any corresponding 
benefit to the public, and cites Merrill v. Oity of “heaton, 366 Til. 
457, That case wae an injunetion suit brought to restrain the city 
from interfering with the remodeling of a building intended te change 
it from @ single family to a two family dwelling, and attacked the 





<b- 
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act vo Gomeretad saw ete neutw .Douinee erew adtereq ton em? Sn 
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sod troqqee of Sefiat cect Inebaoteh ,b2ae yYhoorle oved ewes” Ooo 
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gutduvly ed? to Yaomtinod oF of gatbropex ,evelfed ef efdancanerky 
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thoy oct mt aecot axes To detntt of betttereg e¢ bisow sme’ ¢ atte’ 
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| ane off mf eyntbilutl telte te tofeatare oft of aa Ytitees of tet 
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anibaoquorie9 Yas sued tw vod os melthcteteee ld atete at tiveor 
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odd Bexoatta bas \put tious | Lteat one wr — 





~ 

waligity of section 3 of the soning ordinanee ehich forbade the 
erection in certain territory of any buildings except single family 
@wellinge and boarding houses limited te sixteen boarders, The court 
held, under the clreumstances of that case, that section 3 of the 
ordinance wae diseriminatory and unreseonable in prehibiting a two 
family residence but permitting boarding or rooming houses with « 
large number of persons, This ease le not in point, as it invelved 
the validity of an ordinance, In the ingtant ease defendant has not 
Questioned the validity of any part of the zoning ordinance; here in- 
volved was the enforcement of an ordinance, nct ite validity, and the 
exelusion of evidence as to other buildings was proper. 

Defendant's principal claim te error is that the trial court 
disregarded whet she believed to be the preponderance of the evidence, 
We hold that the violation of the ordinance by defendant in the 
respect referred to, and ae charged in plaintiff's complaint, was 
proved by a clear preponderance of the evidence, as is required in 
eases of this Kind, City of Chicago v. farrett Mfg, Co., 192 Ill. App. 


(abst.) 460; City of Chicago v. Howe, 187 111. App. (abst.) 175, and 
eases there cited. 


Moreover, defendant ¢laimed as part of her defense that the 
rear building was, et the time the ordinance was passed and ever since, 
eceupied by more than one family. the asked the court to bare 2 
finding thereon in her favor, “he then hed the burden of furnishing 
the evidence upon which such a finding eould legally reet. Zrentice v. 
Grane, 234 T1l. 302, 309. “Where defendant pleads an affirmative 
éefense he has the burden of maintaining such defense by a preponder- 
ance of the evidence,* MaoNeil, Illinois tvidence, (24 ed.) 474, and 
cases there cited, Defendant failed to maintain her defense in this 
respect, 

The Judgment of the Criminal court of Cook county is affirmed, 

JUDGMENT AFFIRMED, - 
O'Gonnor, P.J., and Hatehett, J., concur. 


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41002 
STELLA 2TRASEBE! 





af ana My sige 


Appellants, 





MA, JUSTICE MeSURELY DELIVERED TAR OPINION OF THE prea, 
Plaintiffs brought suit alleging that defendants, who were 
brokers on the Chicago Board of Trade, failed to notify plaintiff ™, 
Lewis of a change in the market price of corn ae defendants had 


promiseé to do; that by reason of thie plaintiffe suffered a loss which 


they sought to recover from Gefendante, Upon trial by the esurt judg~ 
ment was entered against defendants for $799.40, from which they 
appeal, 

Plaintiff Lewie had had dealings with defendants through 
Henry White, their customer's man, and subsequently introduced Ere. 
Stelle “traasberg, the other plaintiff, to shite; she desired to open 
a trading account but wae told by white that the rules of hie firm did 
net permit trading accounts with women, so it was agreed that “re, 
Strasberg would make her investments through Lewis, and ali of the 
transactions were between Lewis and White. 

Plaintiffe aecert that white promieed to notify Lewis if 
there wees any change in the market of "1/8 of a cent, more or lees, * 
and that August 2, 1937, there was a fluctuation in the corn sarket of 
4 and 1/8 cents a bushel; that defendants 414 not notify plaintiffe« of 
this, with the resulting logs, white denies making such o promise, 

In the fall of 1956, Lewis was solicited by White to trans- 


fer his stock account to defendant Lamborn, Wutehings & So., and Lewis | 


signed a card whereby he agreed to be bound by all the rules and 
regulations of the Chisago Beard of Trafie, One of these rules forbade 
brokers te give continuous serket quotations over telephone wires. 





abe arvoe’ ‘nile allt ee 
~MVGy SHY FO MOIWLAO 2BT GUMNVIUEG ZlanuoeN — Shin 

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ghel, twee att td Lada! soql adaabneteh sort sevcees of tagwes yam, 
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poe ae oe ot Diets: Aare 

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—* — M Oe, lo SARA: POR POREAREREIT 
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-anett of did Yd bottetson paw. atved BERL Yo. Liat eh ATs —E 
elwed ae ,.00 ® egnkdete® .orodmed tanbasteh of nuoson onde A 8 
Aas edwt ot Lo ga Sawod of oF Bownye od xdonecty bane @ Sengte 
— — aolue aned? 20 sa .odax? 20 rnold ogaotdd edg Ye 
aeitw onosigeled seve anotzateup Seuss auoan it aan avy 









~fe 

There ie in the record an account of the various trane- 
aetions of Lewis in the grain market through Lamborn, Hutehings & Go, 
Commencing in April, 1837, there were six of such transactions, ail 
of which showed a profit to Lewis, OSuring all of these tranasctiones 
@hite kept Lewie informed as to the sarket conditions, In 4ugust, 
1927, Lewle inetrueted white to sell 20,000 bushels of Septesber corn 
and to buy an equal amount of December cern, Thine is called a 
“apread® on the Board of Trade, August 2, the corn market fluctuated, 
and White inetructed his telephone operator to call Lewie at about 
11:15 oteloeck in the morning, but the operator reported thet she could 
not get a call through; that she would receive the busy signal; 
eventually she reached Lewis’ office and wae told by his operater that 
he wat out; word wae left for Lewie to eall White, but white heard 
nothing from Lewis’ office all that day. 

411 of the corn trades made by Lewie were on margin and 
Lewle had estecks pledged with defendants to secure the grain orcers, 
Oa the morning of August 3, White ealled Lewis to tell him he must 
put up more collateral, since the "spread" had moved against him, 
Lewle declined te put up more collateral and hie stocks were seld te 
eover the lose, 

Defendante argue effeotively that it wae unreasonable to 
believe shite promised to notify Lewis of every 1/8 of a cent price 
change. eoorde were introduced showing that on August 2 there were 
about 250 separate 1/6 of a cent price fluctuations in ‘September corn 
and about 220 price fluctuations in Decenber corn, in order to inform 
Lewis of every change of 1/8 of # cent on this date it would have re- 
quired White to notify Lewis approximately 550 times. “oreover, there 
ig no @laim that white, in the prior transactions with Lewle, notified 
him of changes of 1/8 of a cent in the market price. ‘There are 
various other considerations which negative any undertaking by shite 
to notify Lewis of any change of 1/8 of a cent in the — 


“8~ 
“saat? auoiiav edt to gnyesee aa Sro;er od? at ai ered? *** 
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fauged al .anet@hiaoo texvem ont of 20 Bewtotal ‘atwol 2a0d et tite 
W109. Sedma gee to afedaud 900,08 iiee of e¢I@ hetowstent alwed ,TSe@r 
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.Dotausens? Fetvas wxo9ec? egaura Abert 20 dueel 9d? ao da·ia⸗· 
tweds 44 sivod Liaw of sopauege emodgeied atd Setoustant erie dan 
bives ade sad? Setuoget retateqe edd ted ,gatesom edt mt aooto o rized | 
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tome od wid Liat of sived Boling otha .6.fouped to patenen 968.98 
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| 199 Tedmet ger al amoltausons? eotxg ta9e « Yo G\ ↄtauage⸗ 088 Avode 
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beitison, ———— gaa tact aete o 9k 
| ta, vxioc ————— 
on tet Mi pettetzehay tmp NA MA·⸗ bia ePEt —* 
at naam ot a B09 4/28 2 pea, stent #9. of 











ote 

Ia plaintiffs’ brief they adwit that thite 414 not promise 
to motify Lewie of any change of 1/2 of « cent in price, but say he 
promigeé to notify Lewle of “any changes 1/2 of a cent, more or lees, * 
and the argument is wade that the words “more or leen* meant a promise 
to notify Lewis ef the fluctuations of more than one-eighth, In their 
etatement of claim plaintiffs aucertes that defendsste agreed to 
notify them “ae often as the market fluctuated at leaet 1/8 of one 
cent," so long as the “epread* was in excesa of 25 peints, The trial 
court based ite finding upon the conclusion that defendants Gid not 
give notice that the fluctuation was exceeding 1/8 of one cent, The 
Judgment entered of $799.40 was the amount of plaintiffs’ loas, less 
1/8 of @ cent per bushel, and this cen only be explained upon the 
theory that Lewis should have been notified as soon as the "spread" 
price had fallen off 1/6 of a cent. 

There is aleo foree in defendante' argument thet while the 
evidence shows “hite endeavored, ,unsuccecsfully,to reach Lewle by 
telephone when the price had changed subetantially, the court disre- 
garded thie testimony beeause it wae of the opinion white should have 
called Lewis the moment of a 1/4 of a cent fluctuation. In other 
words, the court adopted the theory of plaintiffs that shite had 
promised to notify Lewis the moment there wae any change of 1/8 of one 
cent. As we have indicated, we held this theory ie unreasonable and 
cannet be given credit. 

Plaintiffs make some argument that the transaction was a 
gembling transaction, and say that under the “Municipal court praeetice 
no pleadings are necessary in fourth clase eases in the Municipal 
court, Municipal court rule 3, par, 1 (1935), requires plaintiff to 
file a statement of ¢laim setting forth the facts of hir complaint. 
There is no claim made in the instant statement of clai= that thie wae 
@ gambling transaction, The judgment wae not entered upon this theory, 


We are of the opinion the record does not justify the Judg- 


ment entered and it ia reverred, JUDGMENT AKVERSED, 
_O"'Gonner, P.d.. and HMatehett, J.. concur, : 


= 
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— kaked eff .efadoy 88 to sagnae a sow MReosgn’ eft em ged ow. *ytaes 
| Ton 425 etaghasted dad? aetveionoe ett noqu yethast at beand saeo 
ad gage ono Ye B\L yuidenoxe ew motsantont? ait tach eatdon wvtg 
48 {teed faBRetntel Le twems eA? Gow OF. CTO to Deuntne smemghat 
ott peg enieiqns ed Uine aa e289 fan ,Ledeud req tas9 @ Bo BL ‘ 
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tone B Te AL Vie ael let bad eoteq 
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vt eiwed dese of 4d inten soquacus Sexorsebns seine awols sonehive 
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bas eidaneaszetas ei yaeats ede Died ow ——— 
A tan xolfearawadt —————— uoga 
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-tadalqnoe oid te atest mie dt20t garltdes miele To Peometada: a OLLT 
(eae elid sadt wtalo to gapmetate traghak ed mk aba aed ehicalll 
“yen? afd? aequ beretne tom ao tuombut act | 


oghat sts: nbs-eut:t em: nents hammers — 
_GRaReY EA PRMDITL -bewxeves af tf has 










413567 


CESIRA CALZAVARA, PRANK CALZAVARA, 
her husband, and #&D0 CALDAVAR: aN 


COURT, 
COUNTY. 





MR, JUSTICON MeBURELY DELIVERED THE OPINION OF THE COURT, 

Plaintiffe brought suit claiming eeparate damages sustained 
by them by the burning of a frame barn and ite contents, alleging the 
fire wae caused by the negligence of defendants in allowing dry graen 
and weeds to be upon the right of way of the railroad operated by 
them ae trustees, which wae set on fire from a locemotive engine, and 
aleo in failing to keep their locomotive engine and traine in suitable 
order ané repair so that fire would not eseape and be thrown upon the 
Fight of way and property of adjoining land owners; thet at 1:50 
o'elock in the afternoon of Coteber 11, 1938, eparks from a locomotive 
engine passing upon the railroad set fire to the graee and weeds on 
the right of way, which fire epread and wae communicated to the barn 
of plaintiff Ceeira Oalzavara, whereby it with its econtente was wholly 
consumed, 

The case was tried before a court and jury, and at the eon- 
clusion of the evidence for plaintiffs the court perewpterily in- 
structed the jury to return a verdict of not guilty. Judgment wae 
entered and plaintiffs appeal, 

It is well eetabliched that the trial court may not direct 
a finding for the defendant when there 12 evidence which fairly tends 
to support the plaintiff's case, If the evidence supporting the 
plaintiff 4s sufficient to make a prima facie case the court ie not 
authorized to direat ao verdict for defendant because of evidenes of 
contrary facta tending toward an opposite conclusion. Shannen v. 
Rightingale, S21, 111, 168, 175, 








Tae ABY % WOLRLSO. ARY PLN —— 
bomdefeus seganab efareqes anietalo tlw sdgood ethteadeld 0 uen 


dé satgeita ,stneiooe afk aga sied met? # to gainsod ods. yt wold Ws 
aneag eb gedwoila al otaabasted to saaegidnen es? yd, Seaueg saw ont? 

Vi hegarege Dencitos od? To yor Yo Tigls edd. noqw.od of, ebony one 
ane ,onighs svidencost a eext ott ao #20 sew dotdy .sectegnt, 6a, mend : 
eidatiue st anterd dna ontyos ovivonepol sledh qoot ot. geetiat, a2 esis 


ed? neque sweusdt 9, 55a eqR08e toa Divow ealt tad?,.oe asager Sas s9bt0 


ORL ta tad? jonenso deei guiatelbs Yo Wueqeig dae. yey Be sips 


 ovivemecot 4 woul atrece . 2004 SL aedeteO be agonued te oud al sooio'o 


ft sheew Dag apang odd of oust tom daoudden.omt, nogm gnteaag satgae 


— Uliedwe waw afaotnes ees daw 24 qWoredw ,onavaslad, azine? 2issatel@ do 


# wierd vhs ae > bomganes 


PDL LOAM REELS BNIB a — 80 a, 


ant yLbtetquereq fameo ad? BYisdatale wo? pampbive,ede, te: netauso 
naw snemphul Yo Lieg fom Yo fobbuey.aemten of yuh ed? botonute 
Soerlh, Zon. tam. dw9o. Latae add * — OB 2 tn onda nae 
abaot (Lila? seldw esaebtve af eredt aodw dasbmetob off sot gnthadtns 
ond gatixeqqus gonebive edé a sepa at Ttdadela odd, Paoqgue of | 
fom at Sapo. edt ened etestaakny a. clam of: 4 wakek wm Ads WORE 
fm eomeb iran da: srusned: enbae tod amit anne — doa two⸗⸗ 






2 

The evidenee showed that the railroad tracke at the place in 
question ran in 4 westerly direction on a down slope; the fence on 
the nertherly side of the right of way wae two or three feet south of 
the south side of the barn; dead grase and dry weeds from 1 to 1-1/2 
feet high covered the slope of the northerly embankment of the right of 
way and they hed been there through the evuuner, The dey wae clear and 
ary and the wind wae from the south, 

Nina Galsavara, the daughter of plaintiffa, wee working in 
the kitehen of the @welling nearby. She testified that she saw through 
the west kitehen windew a locomotive going weet aleng the railroad, 
drawing two coachee, passing the barn and emitting sparka; thet a few 
minutes later ehe went outeide and eaw the muthweet side of the barn 
burning; thet che called the fire department of the village of 
Libertyville, Til. but before it arrived the barn and ite contents were 
entirely burned; that she could see the grass and weeda starting te 
burn along the back of the barn on their property; that the sparks 
coming from the engine were ae large ae one's finger nail - “Little red 
sparke flying from the south." The weather bureau report for that day 
wae offered in evidence, showing that the maxisum temperature wae 43°, 
with an average of 72°; the maximum wind velocity 16 miles, with « 
momentary velocity of 24 miles ~- the prevailing direction frem the 
#outh, and the sunshine 99 per cent, 

Chapter 114, par, 64, 111. Rev. State, 1939, previdee it 
shall be the duty of railroads to keep their right of way clear ‘fron 
all dead graae, dry weede, or other dangerous combustible material, 
and for neglect ahall be liable“ in damages, Paragraph 96 prevides 
that in all actions against a railroad for the recovery of damages to 
property “occasioned by fire communicated by eny locomotive engine | 
while upon or paesing along any railresd in this estate, the fact that 
such fire wae #0 communicated shall be taken as full crime facie 
evidence te charge with negligence " 2 ecerporation or pervons who 
shall be in the use or oceupation of the railroad, 


~G- 

st ooslg eit ta sdoawt hacrtltas edt tad? Aewosds soneblve ost | 
so gonet ai? jagels awed a mo aolyeethh ylaeteew a al at 8923 eeup 
to Atuoe sont coni? ao.cw? taw yew to fdgia ons to obla yluedtion eft 
a\i-l of I mec? ohesw yah Sat seaxg bnob (ated iff to obte déwo ede 
to Sdgix add te teeeiaadae yluedtxon ait Yo sqole si Dexevon stgtsh Peet 
ine teele saw Yah eit souawe 96d cqvoxst oredd mood dad yedt Ban yaw 
| . i 69 on 8A wer aa bate eft bas Yad 

mi gitaxow soe ,eTitfatelg te settyest ec .atavacieO anki 

diguond? wae ole cal? Seitéteog acl?  yleeed galliowd odd Yo medot td ont 
yhaorlion emf gnole teew galog ovitomeved » wobuitw nalet is teow wit 
| wet 9 gad? tustusqe anldvies des oud eff gateanq .cotloaes ow? gatwerd 
ag eM Lo odin sesweltwen ado war hms ebAatuo taow ede voted eetuNtn 
| Qe sgeillv oi Yo Saomtuaqed oul? oot Helieo ose sate ygmkirrial 
“gxow ataotane att dae crmé ete Soviuus $2 exoted gud ALE ol Livytaedta 
of BMLIIeTe Bheew Soe wRexg eft 908 Sino ate tale bored YLexbiree 
— aReRge Od Peal? PYreeqouE LLett #0 mee oF Yo ned ect yaoLa wid 
‘Bex ohidit* + Lisa cog steno 06 sgtal a8 erew enignd ef? mout gnimbo 
Yah Gadd cot gxoget neque sedtaew off * deen of? moet gatyt? adzeqe 
(86 bev wuteteqnet mumtnan elt tad? yatweds. ~senehive at hererte sew 
| @ dite ,nelim Of ysleeley houtw aentxeam ent) (98. 2b egeteve Ae adie 
edt wort nolfoerts gatitevery ef? - eollm d2 Yo ytloolev yuataemen 

i tne 19¢ CG omidenes ett bas touoR 

Sh aeblvore .WSOL .adate vet WLLL (68 yang yes aetqatd 8% 
novt* ta0fo Yau To sagiu utedd qped oF ehaotLion to yub oft od Latte 
,lalveten eidigendags apetegnah ceive .¢o° sabeoow UID jaeaey baob Ike 
aedivete 8@ deaugatst jaegamsd at *eddehl ed Linda teeTgen tot ban 
of eeganad Io yreveoes st cot Seotlias a sandage anotvom Ifa al tadt 
oulgne avidomovel yuna Yd Seteolammmes Gilt 4d danoteasne* yereqota 

— dost of? .odate ofc? mt Saotiter yaw gaeln gatevag'a ndge’ oLtdw 
Mwv⸗ sist aa aetot ne Peto a RNeediNS —* 






a 

Some revarke made by the trial court indicate that he was 
doubtful as te some parte of the testisony of Hina Calzavara, but 18 
was not fer the eourt, upon the motion te direet the verdist, to weigh 
the evidence, 

Under the statute Lt is only neceseary for the plaintiff, to 
eetablish a prime facie case of negligence againat the railroad company 
to introduce evidence tending to show that the fire wae caused by 
sperke frow the engine. S, ©, ©, & 5t. L. Ry. Uo. v. Hornsby, 202 111, 
138. In i, &. BK. Go. v. Bailey, 222 111. 460, the evidence showed that 
‘from 10 to 30 minutes after a train had passed, fire was seen coming 
from the roof of a building nearby and the building was burned, The 
court held this evidence fairly tended to prove the fire wae con- 
municated to the building from defendant's engine and it was suffielent 
to make out a prima facie case, and the court therefore would not have 
been Justified in directing a verdict for the defendant. 

Ye are of the opinion that plaintiffe’ evidence fairly tended 
to prove the fire was communicated to plaintiffe' barn from defendants! 
engine, ené this wae sufficient to make out a prima faeie case under 
the statute, The trial court was not justified in inetructing the jury 
to find againet plaintiffs, 

The judgment is reversed and the cause ie remanded for a new 
trial. 

REVERSED AND REMANDED, 
O'Conner, F.J., and Matehett, J,, concur, 


| “f= 
saw ot Tadd ofeetbat twee Kates ot Yo ean atteeet” emote” 

af tod ,piaveela® ext te yworltaot aff to adtey onos oF aa Lwttdped> 
dghew ot .relbeev od? Forth of —— — 
bf Mlontate 90k 40? Yranseonet Yee ot! oF otutnte eAt HORM 81) Foe 
Znsyhoe Baorlto: oly tanteyn gonabliyen Yo enne Slow? aubee — 
| — 


oer not [ .v erkgee ace wort exams 


igs 









grlwes mee sew GXET Seansy Bad alert @ sorte wetentn OF 6F Of nor? 


taotertiwe anv $2 Boe ontgne w'onedestes wert golbliyd ade oF Rexwwtme 
wead You Biyow motsest Suites add fn ,se8o Sfest “amine « tye exeeror 
“gaa tine tes edt vet fofStev a galtootts af Bertseet seed 

bebnet Yluist sonshive ‘eYtitateala Gadd noiatqe “edt Ye wea GH oho ConW 


| 
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— —— —— aie 
cies Uteurtea — — — —⏑— —⏑ — —— 





umes 
Ret Qe Se enivisnee at paw tance 
' — — v ae yey pOrs ger gant? . 4 
RES Oe 8 Os atom (TL (rendigan hay TLE? seamen 
| te CEMA? THe tee ~nbper Cth . pear Haeee ees 
aKa AVAL yy i SR awh Be gS OR Re aR cP aa tiotyes ot Sem 
: OP UahRene Vo Wievecw: att aah fewiter « teh aneien Lee eae 
Ra RRR BELT YE: Ten Da aie? Ebeoroty 





He Stat |) gye Fry Aes BE Sedt@iotnorees > dae saw want: 
uate Ment omer LO a enh mean det Sak ap ay RN AR — — aigthmadé , 
ono ther oft te sebPaentiee od idee lel 


“Bewods ebaetkys ott S90 —— — ⏑ eer 


ean owed sew goth lied soit das UEvaOR YoEBE ted & Yo Yoo ede text ; 
Lees bad er Et oot evove of Sebnod Yfebet sedelive etary Sied tamep 


¢ si Seogtiet ps ae a ve separ J 4 






40829 _— 


La SALLE BORTGAGE & bi! SCOUNT § CUP ARY, 
a Gorporetipn, — 
App Hy 







* 


—— 4 


F 
# muerte GOURT 


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Upien TyPEf POUNDERS hashes a 


ment. BOY TS = 492 


wa, JUTICE MATONETT DELIVERED THE OPIHION OF THE COUAT. 

January 9, 1939, the Turner company, defendant in thie ease, 
eecureaé a judgment by confession for #2250.75, in the Municipal Court 
of Chisago, against “illiam Schwartz, deing businese ot GSS =, selis 
street under the newe of “Midwest Printers Waehinery worke, On the 
same Gay an execution issued to the bailiff and was levied on property 
at the above premises, Later the bailiff levied the execution on 
other machinery and equipment at 820 W, 35th street. In each instance 
the LaSelle Mortgage & Discount Company gave notice of the trial of 
right of property. ‘The cases were tried together by the court, In 
each case, on January 27, 1959, the court entered judgment on 4 
finding in favor of the LaSalle company and the Turner company appealed 
to this court. The records will be best understood if considered 
separately, 

Williaw Sehwartz, the judgsent debtor, was engaged in the 
business of buying and selling secondhand printer's machinery. “e 
owned a businese at 653 5, Welle street and aleo at 350 5, ‘ellis 
atreet. Willias Sehwartsz hae a brother named Merrie, who up te June 
2, 1938, had not been engaged in any business on his own aecount, off 
and on he worked for hie brother William. ‘emetimes he worked fer the 
Turner company a¢ a repair mechanic, He was paid from 40 sents to 60 
cents an hour, 

William Sohwarts: testified that about June 1, 1958, he 
(William) wae offered a proposition to go inte the wateh business, He 





| HUGO 287 VQ. WORMIGO AME anavzise TrunevAn sOETEUL — 
.9280 past wt Jashbnateh ,yaoquee nemawt ef ,COCL .@ YIAMBBE) now 
109 Sagheiau ode o£ G5. 088% 1% Aofenetaao YW smeayhul 2 Rexuoas 
eiiev .2 G80 te seouteud gatoh satnawsded mol LL2¥ gantaga yognetdd 20 


adi 00 .asvow wuentsinas 4 REL 









| n nadtwnane at. sptval 322d. sap gated, ——— 


_ Sonstant dase al .Jeouts aaas . oas ta saenqhupe daa vaeatavan cedte 
“Yo Lefas oxy Yo sod2on evag Yamgmod PawooRld 4 egaytxeN eLlahed ent 


al .?anoo sia ys xadtege? betxt etow aoaas oft .yruagong to sigts 

40 dremgdut beeetng sqwon odd ,Q6RL , TS amaab 20 ,9nee Aage 

helasqqe Xo ova At gasbas? 

deqebianco i booteraiay Jaad ed ftw abiooes ent, .tayoo ald? of 

aay at Segagas caw ,203ded gnompoul ot’. ,afaawiet maliity | _ 
SH ,Unenidosm alaegnizg basshacosa guilice bas, gatysat ‘sania 

| allow .© 083 ta esle bag toons ellev Sed 40 enontaut » Denno 
enw. of qu ote saittok boman sedseud @ ead atuawiol walliiy — teers 
| RRO .tawoooe owe ats me neontemd yao at degagae need fon. bad ~O6RL <8 
sit 19% Better et eomtiems. ,mellidw aedtowd eta so beduow od as das 
68 oF efnee Gb mort Sieg saw ek e 5 

ot BOL ,f saul ausu⸗ sade + esntenes, sotawsiog mansLie. —— J 

oH ,seeniand sistas edd o¢ak og oF aolsivoqotg a bevette sav 





=f. 


aid not know whether he wanted 1t or not, #o he sugseated hie brether 
Morrie “take a crack at 1t.* He gold Morrie “equipement to fit the 
nature of the businese,* He laid out for Sorris the plans for the 
mateh company and the equipment he woulé need, Norris had never had 
any experience with that type of business, William prepared a son- 
aitional sales contract by which he sold to Morrie for 43500 certain 
equipwent at 653 ©, elle street, The instrument acknowledged the 
receipt by Williem Sehwarts of 3980 on the date of 1t (which was 

June 2, 1038) and the promise of Morris to pay to #illiam the balance 
of §2550 ten days thereafter. June 14, Worries, as the Midwest Match 
Gompany, executed a note for $3000 te the order of plaintiff, LaSalle 
company, and by chattel mortgage conveyed the property which he had 
purchased from his brother to it as security. The note provided for 
the payment of #160 en thet date, 7160 upon the 14th day ef each and 
every month thereafter for ten months, and the payment of $1240 on 
‘June 14, 1939, all with interest at 6%, illiam ‘chwart:, the judguent 
Gebtor, guaranteed the payment of this note. 

Morris Sohwartz, testifying ae a witnese for GefenGant, said 
hie brother William owed him $450 and that he (“erris) paid te #illias 
in the transsetion $600 in cash; that he then arranged with the 
LaSalle eompany for a lean, His brether took him to the loan company 
where he got a cheek for $2550, with whieh he paid off his brother for 
this property. Thereafter, he ocoupied the premisee with hin brether 
William, Morrie aayes he wae in the mateh business for about two 
monthe, He says he rented from his brother William st (25 per month, 
There was & front door and a back door to the premises, The entrance 
to the business conducted by Williem ae the “idweet Printers Machinery 
Works was by the front door, while the entrance te the buainese of hie 
brother Morris, doing business as the Midwest Match Company, wae by 
the back door, Morris says he sold very little in hie business, He 


soavoud ald deteeugu: af om ,ton vo 84 betnaw ad rodd edw'vond Son bss 
odd Zit of ¢nsegtape”® alese Sloe of *.¢2 ta toate @ oi⸗⸗· aivieé 

oi? sot saniq a siavet wel two Slel ot * eneninud ead % oragan 

bad seven bad alavos boom Siwow od tnesqhupe add Sas —— Aot am 
“OO & hounqesy mahiles ,meaniond te aqy? dads she —R Ae td 
alatsee oosas a0% eLaast of Sioa od ‘sobs At soantace * —X 
add Aegdsfwomies theervtant ed? .toorte alle 4 86 ta tn onqtupe 

aga deidw} $2 2o sted ect me C8CE to adaewie® antLin yd sqtedes 
‘eoaalad ait Gai fty of yaq OF GINVON To seleote eat bas (6BCL ,8 saul 
Motay Seowhth ont ou voteeah (Of eth ssePtaored? aged noe O8RRg tO 
eifadpl ,YRtatale te wice eM? oF 26069 wo? ofen & DOtwsone peAagNsd 
bac of dott yrange ad? Seqoraes egagiian Lottade ye San yyaaqnee 
“got Bebivoay efon a? .eeeeoes aw th of and ord aad mort Denadoung 
bas dome te yab doa. ody moe GOOLE yatad Bards a0 0OL) Yo vMemyad! oft 
me DOSL8 to fasexveq ott Ana ,sdPtnomené? qe? aottwerads Atnom Yass 
—— eed «atcawi® aintsste {RB Fa Teonsead dttw Loa yeRel ot onwt 
| .s7of GA YS Taewyag etd Seavaetawy (rOsseD 
‘Bias ,tasbeeted vot easatiw « aa gatyticaed .stiswiiet ebrtEn, oor Shoe 
‘pALiLt® of ble (elvee) of tac? San 0888 wid Sows aasteew cadvend asa 
‘edd dekw dopnowes nese off fade jddao Hh 0088 WeLsomenarT Odd Bt 

Yaaumes aaol ofT of mid Moot secitord alk .meol w set yaaqués® Pyeror) 
aot tedtord eit Yie Bieq ef deddw dgty (08688 Got deere 4 doy oc erestw 
sotond sid M22v eebtmoug od? Setgueee od piel iacted? yerteqotd andy 
eve tuods tot anenieud ‘deta oft af naw od dys atetet  sawkirey 

Mono 
eonartas as? wontitetg af? 68 ie0h todd whan 500k sdoet a aad -OteRt 
 -EeaneseaM aregn2s SeewSse ont ad MELLLEY YM Revousaso ewamtend ont OF 
eid Ye asontesd od? of vonattae od 6Ltdw yredd tnot? odd ye saw amet 
YW kaw ,Yoagee) dozer trowbiM ent aa exontenwd gate Lateral wedtoud 





eh ,enentesd alm mb — — * vtoob fons , 
aD oat oh Om OF atpdt fs » dome Yhe gee (mits Tea 


Sp hae! a fi ye 






-Se 

remenbers one customer who pald him $20. Me maileé out some catalogues. 
He says his brether #illiem agreecé to help him, “*I didn't have to pay 
hia, Hy duties were inside. I didn't go out.” Horrie says he might 
have done some little jobs of repairing while he operated the match 
business. He didn't sign the lease at 230 5, Welle street. Hie 
brother signed that. He made only one payment of §160 and interest 

to the LaSalle company, in July, 1936, and 41d not pay anything after 
thet. He never had « bank account in connection with hie business, 
The machinery #014 there wae sold by hie brother, December 27, 1258, 
Morris turned the property purchased from his brether over te the 
LaSalle company, This wae about thirteen days before the entry of 
Judgment ana levy ageinet William Sehwarte. Morris Schwartz exeouted 
a bill of gale in consideration of his release from the chattel 
mortgage, On the game day the Lavtalle company wade « written contract 
with Williem Sehwarts by which it empleyed him as its agent for 
*‘yeaconable compensation for the services rendered by him in connection 
with the consumastion of such sales, and not otherwise,* The agree- 
ment provided that William Schwartz wae te hold any proceede of sales 
ae trustee for the company. ‘The agreement was to continue in effect 
until the company should elect to terminate the same on five daye! 
notice. It provided William Schwartz ehould permit the Lotalle 
company to keep and store the property upon the premises known as 663 
5, Belle etreet, Ghicago, rent free, for the purpese of exhibiting the 
same to prospective buyere. At the sams time an ewployee of plaintiff 
LaSalle company went over to 653 GS, Welle street and with a stencil 
put on each piece of machinery a statement to the effeet that it wae 
owned by the Levalle Mortgage & Diseount Company, Yetween June 14, 
1938, and December 27, 1958, William Schwarts seld various items of 
property listed on plaintiff's mortgage with the knowledge and con- 
sent of plaintiff, and €1800 wae reeeived on these salen, turned over 
te plaintiff, and applied on the mortgage indebtedness, In addition 


Se 
-magelaias omoe Iwo Deitan sli OSS mig Blaq orivs Temetawe no. _ Bigiaemet 
Weg ef svad T'nbth I" mid gdod of beergs matiity aoaner aid ayes en 
Sdigia od eaxoas ater Aus og t'abss T seblent er (meltyh, ate 
Hogan odt betexsqo et alkde yatuteqey Yo adot Ann omen onod oyad 
ak deeds aifen ,8 O85 te onset aul? ngte a ante a _sengatand 
fworednd fan 9052 to Fmamyag ono ino aban oH tae begin odzend 
1921s anita yrs WAG tor 2h das 8602 tint at swoaquag oliatad s 5* 4 
—8R ate diiw settoonnse as sauovon Ansd * bad seven. M,. fads 
| g888L (TR redneon soddoud wid ys dion saw iene Dios vissuioan od? 
_ Rat 68 ovo upltond add mont Denadoniny yivegong oat Demruut. adsnel 
| te etee »ar #10 — —— aver tid? suede ame ald? — ete 
bot wooxe st-aaw ee aivcot ,a¢taudod manlise sentage Avot baa dnompbut 
| Septade edt wort esegtet etd Yo moltarebience at else to ittd a 
| toaxtace neg e.tuw a abs qeaquoe eLtatad ais ae amas odd 10. _easer TOR 
” 102 mops ect aa mid Seyolque | ah dotse oa 
aeiasoaae⸗ AL utd yo dovsdaer seotyree eff 10} anes Ke 
~eargs od? *.eaiwiedse jog fas ,selas don : % 















“gaotts at — a paw — oat ‘que 
tayab vit no saan ed? at ankegedt oF Oe. i ry an 0 

| pEfatad edt tteneg Diwodta afeawdin’ wal Ley bobtvo 

50a aa , anon apatnesg ade aogu Yueqetq oft enone Bas ** ot * 
| ait mais ca⸗ —V——— ont, met — iad ee: 


Vtstelq to soyolqne aa ont? sane, add aA sr9 ued ones egy or oeqnong of amas 


Lioness a dttv bas seorte aitou 2 +888 a8 re¥0 v0 tne Waaquee efiniad 
naw d2 tad? tootte ast oF tmonod 09a ‘B Yaentdeom % te esetq dove ne tug 

a Rs saul asowt es — 2 aueo⸗ ia ** Lotel et ys Donwe 
3 anes awoluay blow atumede® ** “gah 98 xedmooe! Dae * 
foe | bas egbefvont oat sate — af tress ——— fa, —X 

















va fea 


seve bowint —2 ne . bovtoow:. a nay OC6.h Baa, «12298 
‘nots tbde al ,eeenbesdobal egagtuom —* ne Seliqga bua ,7 


who 
a gash payment of 7160 and interest wae made to plaintiff by “orris as 
already stated, in July, 1938, 

Yefendant contends the transactions between Morris Sohwarts, 
Willies Schwarts and plaintiff relative to this “elle etreet property 
were freudulent and vold as to the creditore of William Sehwarts, It 
says Williem Schwarts owned substantially a11 of the equipment listed 
in plaintiff's wortgage for a year or twe prior te June 2, 1956, and 
on that date it represented practically all of hie stoek in trade; that 
Morris Sehwartz was a repairmaa whe head never hed any experience in the 
matoh businese nor ateady employment, and that the instrument executed 
by these brothers wae a sonditional sales agreement payable in ten 
Gays; that a substantial part of the equipment contained in this sales 
agreesent was of sueh nature that it could not possibly have been used 
in the alleged match business; thet it was never moved from the 
premises on which it was located, and thet William Sehwartz, who oc- 
oupied the premises, continued to sell the equipment in the usual 
eourre of business; thet the retention of possession and control of 
theee goods by ¥iliiam Sehwartz after he had apparently #o14 them wae 
evidence of an intention on his part to defraud hie creditors: that 
even the joint or concurrent posssesion with Merrie Sehwarts was 
presumptively fraudulent, Yo this point ie eited Nuechle v. Morris, 
131 111. 587, 591, 

It 16 apparent the theory of the Turner company was that 
Morris Sechwartz in the transaction in question wae a mere dummy for 
his brother #illiamy that the Lavalle Mortgage & Discount Company knew 
thie and contrived with #illiam and Merrie Sehwarts to the end that 
the creditors of William Sehwarts might be defrauded. ‘“hether the 
evidence justified such an inferenee it ie unnecestary to express any 


epinion for the reason that the trial as to thie particular property 
was not conducted fairly in the respecte we shall now point out, 


be 

ae abexo™ yd Diifrinta of shee egy gaoubOal hae GOLP Yo snomyeq Meade 

 , 82@L ,qlwl ah  betate Uaorks 

etunwde® aint neevdod anasteasnen® esiz ehaetneg snabaetee ——f! 
ereqerg Poors alfow atte of eviielet Itinlald bee’ asemeiod maLls2e 
$I .aPaewtiot mei (£28 to ere¥toeto eae oF 8a Biov bas taolubmaxt? orew 
befell tnemqduoe af? Yo Ifa ellaltaatedse benwe s@atauiio® maLl(tw ayaa 
‘bea 8602 8 oxyt of colag owt TO as0y # vot egegtiom a ttivataty at 
sad? teat wf apots ast Yo Ife qLieotteaty Sotmenesqe: 72 e8ab tad? ne 
‘ed? Gt sonetrouxs ene bat reren bad odw seowtaqget ® saw Rotewdes alr 
Desuoeas troswisent adit Fatt dae Sevepoiqne Ybaets tem sventeud dstan 
wos si eldsyoq tnoneswge eefse Ieaottihaws o aay axedtord seeds yi 
seine eiet nt Setlatroe toomgiepe ede Yo tug Lelvaatedse w tat teyab 
hess aged evad ¥YMiluese for Biwon o1 tate outa Mone Yo wow Tromonge 
sd? wort Seven toven eaw 2 Sait yeeontavd dosam beyelin anh wt 

“90 oc ,xPtawio® oni (ity tet? bom ,Seteoel taw 2 deldw no eenlmyeg 
 fawag edt nl teeeqiapo off Ilen of hopattnoe ,evelmong aft Betgro 

ty Lownoo bax Relweenvcy to soltnete. edt Tadd pweondend te svawee 
«kaw set Bios Ct neiqge bart of 199% RorawieS maliliv yt aboog esedd 
| Gait (wrod Lbore add Sueted oF Pueq ahi Me MERtastAt aw Yo woREbIve 
| aay aotwdine Sintel Miw otesoaecg tneruvencs so Sato sit Hove 
berate  akdonall Borne ot mnie eta om: Soslubuect Yovis auaeng 
00 2 : £68 (98a — 
Fade naw Yonqwos wort? edt Yo yuoedd wid bnenanaä BEE | b ae 
tot Yuaubh oan a saw nolTeewy Rt Holtesenett. —— — 
wea —— — Tavoowld & egaysve" eLlated one Cart (em LEEW stenisoms whet 
tadd dae od? oF stuawdot efetO" Baw matte A be bevewtane haw shay 
alt cet este — of dyin zPiavdad MeLLLAW Yo set sexy ot 

Yes seevEXS OF Yraseedoany oF ¥2 eonevetad aa doin Dertevent sonsbive 


sroqoug aalus i asa etdt of ag fates odd tadd. monaot edt x0? aolatao 
to — won | Late aw — ag an ylatat Devounno fon tite a 
ty mo Sed ioga Duns « Tua had ec J 


i Uo 








2h 

In the firet place, the rules of the Municipal court designed 
te meet «2 situation such at existed were disregarded. Sule i135a pro- 
vided for an examination of any "party" or “person" before trial. 
Defendant filed a petition to that end and geeured an order for such 
examination of William and Norrie Schwarts, an order whieh wae quite 
apprepriate under the circumstances, The trial judge, without notice 
to defendent and upen his own motion, etruek hie signature from the 
order, Thie was quite prejudicial to the Turner Type “ounders Company. 
fwule 246 (3) of the Municipal court provides that in trial of the 
right of property no written pleadings shall be required ether then 
plaintiff's statement of claim, which in this case serely alleged plains 
tiff wae the owner of the property. It is said thet such examination 
was within the diseretion of the trial judge. Thie away be true, but 
aiscretion should never be abused, The striking of this order was, we 
hold, an abuse of discretion. Uefendants were entitled te this order, 

hecond, Rule 127 of the Municipal court provided in sub- 
etance that the court at any tise might order the production of any 
documents in the power or porsegeion of any party relating to any 
matter in question in the action, Defendant gave netice to the 
opposite party to produce certain documents and plaintiff refused to 
produce the same, The court said they ought to agrees on something 
because defendant would want to see the books, The-atterney for 
Plaintiff said he would not produce them, Attorney for defendant sug- 
geeted there should be a vontempt proceeding, or at leant a continu- 
ance for whieh he made a motion. The court reserved ites ruling, the 
judge stating that the only question in the trial was to show title. 
Attorney for defendant then pressed for a eontinuance and a bill of 
particulars, but the court said, “I don't see so much involved in 
this, All they have to prove is how they got titlhe.,* Later in the 
trial defendant moved for an order on plaintiff to produce ite books 
ef account, and the court said, “Wot yet." Attorney for defendant 


hengies’ trueo Lagiotawy edt to selwa eff ,9eatq taxtt ed? at 
ONE abel oive behtage sib eteow bets txe ta down wottant te a teen ot 
tng 


otalizd axoted *noereq* to “"Wusg* Ye to noltsntaaxe ia ‘aot ‘Rebbe 


Howe ~et sabic as Aerw9s2 baa Bae tact og sold 28 0 x bortt taabaotod 
stew 


I3 


‘etiwe saw dotitw — nA —E Araon baa mat iinw te ‘aols ; 
eolton toot bu eater’ fsies? adi? aponadaswoxte ous nebar .neeraa⸗ 
— wort exp} angie aid sowsta molten nwo ain noqu bao tnabnoted ‘of 
synaqeo? eredawo% ogy? remit ot ot tatorbotory et tup ew ob * “a me 
| ott t0 taivs al tas? nehivens —X teqtotau tt te (a) ‘oad etna 
is Matt ‘xali?e Bextuper ad Slade eva ibaota nett tow on “ueqenq te tight 
whale ‘Dogotia glows esas vide at dotdw atalo to ‘Inenedate “S"thvatala 
mold aatunxe dowe tad? Dias at et ——— ‘edt % ‘cues 0a —2 nh 
“gud oat od yo ate .opbul Lala? edt Ye nettwroetb edb Sidbas tee 
ew \eav tebte eid? to gatxinge eft "sDoauds od seven Bivode Bir wns ss | 
J atid of Beltiiny #t9¥ stnabastot smotteroaLd ‘te cane ma” <hted 
due al bebiveus tuce foqtotaus a? te ves ‘ett na 
ae © nottoubesy ‘afd rebie tetyte ent? we ts ‘woo ‘ear’ tat couate 
’ va od paldater UPray tx to nolaseasog “° <eweq. eid ab 8 ssauood 
ori? of soit on ovey taabneted -motton ‘od? at Surr rr ‘nt 108 * 
or Beoutet Tildatalg ane sinenwoob ntadase souborg 02 —* 
guts enon ne oetgs 08 Sitaue weds bles awe “a. * case ol ere 
“OUGT YontevTé‘ ed? .adood ed eon of tame blwow — 
— —— 10? awe’ steeds oomborg ton bivow od ‘bias s vibbatata | 
~unktnoe @ tecel 2a +0 gatbenoorg tqmornee © ‘od ‘blvede 2 hetooy 
edt? vantLon eit Dovasavs uos ad “ notton « & chan od aed wt ae 
" ——— worn of eaw fatad ott nt soltesup Une edd tad? 5 eh A | 
10 iftd a bas sonauatsnes a 0 benserg ‘god? gnabnoted 30% youre gh 
nt beviovas ** ‘oe ooe + nok ™ bias — 3 get why Po 
| * ot ak ‘seta * oftie ‘tea ‘yout wod at overs os oved’ F ‘yon hak” aad 
agood att soubore of ttitntala a0 tebte ab ster bevels tanadtes” Tat ⸗ 


———— 20% venrotvA * toe ‘ten Btae — 












-6- 

then sald, “I don't mean this minute, I wean, before the trial is 
ended,* The court said, “I don't know, I may, and I may not.* Ur, 
Riseman: “If it is a question of title his teetimony must either go 

to prove title or it 1s immaterial.” The Gourt: “fhe best preef of 
title is the checke which you buy the article with, The canceled 
gheok is the best proof." Mr, Ziseman: “We are entitled te see their 
booke and see what the entries are," The Court: ‘If I think you need 
them, I will bring them in,” 

It is apparent the court was procerding on a wrong theory. 
Manifeetly, in a case such as ie here disclosed, there could be no 
efficient creae-examination of witnesses in the absence of the booke, 
The record shows that repeatedly upon croes-examination witnesses 
when preseed said the books would show the facts asked about. 

In the next place, we think the court erred in reatricting 
the scope of the cross-examinetion of witnesses, orria and Willian 
Sehwartz: were obviously hoetile witnesess in so far as defendant was 
concerned, The defense was based on « charge of fraudulent transfer 
of property in which they were directly concerned, In such o case, 
wiée and full examination and crose-examination should have been 
permitted. 27 Corpus Jurie, $735, p. 904-806, Frequent remarks of 
the oourt when ruling on the evidence showed that the caze wae tried 
by the court on the theory that inquiry might not be sade as to 
whether traneactions by checks and written contracts were bona fide, 
The court said: "All they have to preve is how they got title,” At 
another time, *The best preof of title is the ehecke which you buy the 
article with,* Apparently, on thie theory It was ruled that “orris 
Sehwartz might not be asked the souree from which he obtained waney 
to pay hie brother on June 2, 1935, for the equipment which they 
testified was bought from William “echwarts by “orrie Schwarts at thet 
time; aleo, thet hie finaneial condition and ability might net be in- 
quired into at length; that he might not be asked about his arrange- 


2* 


32 tains edt saeted .neem I .otealea eld? anon #' nob I* bias aed? 
tu * ton var I bnew ,yan I .womdk s'aok I* aan 2200 edt | bebas 
oa tedtio tepa YWiemlttee? ald ei#it to aoras en⸗ a ‘al at I" ‘namea lt 
| to Yootg Feed ad?” :eywod off " fadseseamt ef sf a0 sites evorg ot 
hafesnan oa? cithy afettas asl? yud woy dotdw edeedo ed? af oldie 
' atedt oon of beftiine oun ou" ineneeld ah ".300xq dued olf of deeds 
“poam soy antdt 1 2f* itxwod edt * en aelutas of? 2adw 908 bas adood 
“ight | “ak mest gated ithe 1 and 
Jcrced? gnets 6 ke galtdcooorg saw Sues al? iavaaa⸗ sh 21 * 
on od ues oieit ehonofoath ered ot an dows oans s at “vite 7 
.sideod eit to sonceda od? at eesaentin Ie aottantaaxs~so% * 
aesvent iv meltanlmaxe-esoxe NO qu elbesaeqes —* aworia frooes ‘edt 
: -tveds beiae etont edt woe Bivew sdood edt bias beaona ‘a 1 nade 
|“ pittotizuer mt Berxe tuvoo orl? Antdd ow yoaatq sxen ost at Are 
see.) bas ehvse%  eoenentiv to noltanteaxs-aeore og * 
—* dnabaeted ne ‘at on al eesnentiw oLtsa0d ‘nweivde —E— 
——— tnelubsast te egtade a mo beead nav ‘eansted edt * Senueenee 
— a dowe al .bawteones usooxts aise weds doldw at wroqora va te 
seed oven Sinaris nottantmexe-aacte bas noltanimaxe ite ‘bas. 
te stxaset thespert {808-008 or atau auqre’ ve .begaLausg 
Deir sew ease oat tad? Dbeeods eonebive eat ‘se pads sorte ‘tauoo ost 
of en oban od ton srigin yutupat tad? yrood? ‘ata ‘no tame ed 
" 9BLT anod oxew atoattnos aosdinw bea nines tf anolgosanert ret eite 
aA * eltes tog yod? wod at ovexq 03 coved yaa “Uae Btaa ‘fxwoe edt 
anit qud wey, riod tw atecie eats at oat —* — seed ‘oat sutt “aeddons 
ateron tact belwa aw $k riooa⸗ ants Pr (wldneweach 9 dd be ——— 
xenon bentssdo od dotitw net ‘seruee ‘ed? bedse od ton tigte a —— 
yer? dotdw smomgtupe edd rot ez 8 eau’ cr tadtond ‘aid yaq of 
tacit ts adtawiio® ala1ey ww stuswtio® mebtite nor? ‘tigued 1 ; ow bornidens 
“at od ton ddgim ystLtés Bra note tbnco ie tonaaia tas ‘onta i8 —E 


bigs” sg ydepnet X “oc an’ e 


eognarin eld tuods Bexea od fon Sign ed dads yatpacl 





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— ak 
PP aaa” © 


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=F 

ment with hia brother ae te the lease at 336 “elle street; that the 
ugelesenese of equipment bought from Pilliem fer the match bucinesa 
in which 1% vase supposed te be used could not be ehown; that the 
eentrol of the sells etreet property by Williem Sehwarts efter 
December 27, 1934, could not be inguired of upon the examination of 
ty, Kleinwan, plaintiff's manager with whem Willias Gehwartz dealt. 

When 1t became apparent that “orrie “ehwartr wae a hoetile 
witness the court denied defendant's motion toe make his the court's 
witness and permit full cross<examination on the ground that the 
motion should have been made before the examination of the witness 
began, 

A night seseion of court was held and defendant asked s con- 
tinuance which war denied. It is apparent the trial judge wae in « 
hurry te get through, and that he misapplied the rules applicable te 
the trial ef causes in which the issues were of the kind involved 
here, Yor these reasons the judgment will be reversed and the cause 
remanded for another trial. 

REVERSES AND REMANDED, 
O'Genner, ?.7., and NeSurely, J., concur, 


| * 
nat aage ieoxte afiet 055 ta easel elt af aa sender ald ditw snem 
ao omt aam oven ant wet mallity sort @dgved tnengivps to assanantanp 
(ad? todd pawedls od fon Aiwwo beew ed of Sovouqua naw 2% sotite ab 
Sena atmo’ maLiiti ud vaneqena feeds alloy edt. ꝛq Lertaas 
te noitentuaxe oil? coqu to Sortupat od tom Aloo URI TR wedmaeeil 
 etined sfaawdo® saliité modw Atty teyanam s'2itsotele — at 
* Auteea· ane siiawdos aaaven Sad? aacouaaqa en⸗aod #4 axchc 
attasoo adit aid esas of nolton e'sashuete) betaeh gaupe edd acentiw 
asongin od? Te aolianinans ad? sxoted sham red ovad binoda action 
BLING ED DB OED oo head 
“ROO & Daten daptaores ae bind, eax remain titgte A... — 
A mt tow spbul, alat oat tnoragge af #2  .hetned naw Aoi songunty 
OF aidaailaus aeien alt Detiqquatm od stadt has .fyvqruds fog oF yrtunt 
| Bevleval batt oct to exew sowses ont dott at nenued 2e tetas add 
saan ot dae beaneves eo iltw taompbut, Serdar 3h. nae 
Aatꝛt tadtens 0% bobaaam 
.sagnanas * ROHAN... ri God? delty oh Yeager ‘to 
— — —— Bet «bed, eronna"® 


eG Jeers  4~ a og 067) pte, aegis TR hotd Leaeg as 


Sraehite Ws Gh passe cee 5 TTT ott 
i tact quood? aff as Pemoe ene ve 
eee yl eee Peewee aacdttedw 
ora Yo? ALAS. thine ete) out? 


od omtt® vad xodt one 


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gkeos gaz siz, gow FA erowst? a£4? oh .eltnousesk * ot bx eieltaa 





7% weuges aif Soden of fon od ein sf-snustot 
r wot ,b3al .f cna ne sete ore sid wa of | 
route® maliiin wat? tegwed msn nlas⸗ Noun 





' dale eF lla Awe woke kha iagenaas’ ota — * — iw 
5 : — 
1s S20 @eode butse of Son Pagina at s Rae — — te oank 








MR, JUSTICE HATCHETT DELIVERED THE GPINIGN OF THR COURT, 


Defendante appeal from a judgment entered January 27, 1959, 
in favor of the LaSalle company in an setion of trial of the right of 
property situated at $20 &. 35th street in Chicago, 

The facts in brief are that the Turner company on January 
9, 1939, obtained a Judgment against William Sehwartz, who conducted 
@ business in egecondhand printing machinery at 655 5, velle street, 
Chicago, under the name of “idwest Printers Machinery “orke, Sx- 
ecution isevued on the jJudgswent against Schwarts in favor of the Turner 
company and was levied first on the property at 653 5, wells street. 
The LaSalle company claimed the property and gave notice of trial of 
ite righte. The exeeution wae then levied on the property claimed to 
belong te the Judgment creditor at 820 W, 35th street. The LaSalle 
company claimed thie property also. There was in each case Judgment 
in favor of the LaSalle Mortgage & Discount Company and appeal by 
@efendant to this court, The appeal from the Judgment as to the 
property at 653 8. Welle street hae been coneldereé in an opinion filed 
thie day in #0. 40828, This appesl involves the property at S20 #, 
5Sth atreet. 

In thie case the Lavelle sompany gave evidence tending to 
show that Yr. Selig of the Matherron-Jellg Company owned & printing 
plant which was purchased by the Latalle company on Uetober 28, 1958, 
for $11,386.86, and received from the vendor « bill of sale. On the 


on we 








bt giw ayten 






Ay 4g omy 2 Lae p 
AAAAS. Ad 





e sey ae 





Led ape od 
TRULIA 





s Doe savnittw 

.) BAG2 UT 3 WOTHISG 3ER GEE Jad , SRANOUAN SOTRANS lho 

eset xx Crass’ bores co taenghyt 4 sort Ineqge etasinetes = = conor 
30 #agit edt Yo inded to nolter aa al yasquos ehiaiad ad? Yo soval at 
<OMeOL af Seotde A985 .0 O86 se betantia yiveqowq 
yiamal ae Ynequcs samiet ad? sade era Yottd al agent eg. oF cov 
hetoubnes ow ,sduewrles oailiin gantega taemahul a danlatdo ,@SOl 4@ 
teorde nile .G S86 Jo yromtdorm yatta lag Snadbneces at ementaed wi 

~xil ,aauo’ Yeisen” stetaiat seowblY To aaa ene aehaw sogeotdy 
vent? eff 36 vovet wf ePuaeiiet Fantage tnewgdul, edd ao beweel neltune 
.teorte elfov ,f 568 ta yrregonq edt ao Jonk? Belvedl saw Sra qaaqaoe 

te Ieint Yo soften evay faa yrteqgosg ed? bemialo xasanos offetat et 

ef Bemfaio yYuseqerq off me Aeivel asd? eaw noltwooxs ed? —R age 
eifa@al ad? .veerts APSE .v O88 fa TOsLbeto Snomghul of? of gaoked 

-« Seomghel era dose at eaw ered? .oafe ysaeqerq aldt Semtale yasquoo 
xd Lasqya bas yaaqnod Sawoowle & egagitoN effetet ed? te sovet al 

act of ae tnemybyt edt mort Leoqgs ed? .tawoo ald? of tnebaeted 

Bett? aointge na al beveblanes need nad teoorde allow .8 839 ta yWaeqong 
gs’ O88 Se YWaeqorg edt eovlovat Laeqqe elt .C8800 .ok at yah aide 
ot galbasd eenebive evag yneqmes silegel ed esen afd? wl 
gaitntrg a beswo ynaquod gllet-ronredzaM edt to glfee wi tad? vodn : | 
.880L ,88 tosot90 no Yanqmoo eLIntad edt yd bosadorwg say dotdw } 


Pero eee et ee ee Mee me Ep ay ey eee Oe ee 








—— 
geme day the LaSalle company resold thir proverty to the Judgment 
éebter,#illiam Sehwartz,for £12,525,21, executing and delivering to 
bim @ eenditional salee agreement which provided that title was re- 
served in the LaSalle company pending payment of the purchases price 
which was payable November 26, 1928, with interest at 74. wliliam 
Schwartz: 2014 some pieces of the property and in each case turned over 
the proeeeds to the Lavelle company. He Gefaulted in the payment due 
November 28, whereupon the Lavalle company took poeseseion of the 
property and put Erie Glantz, one of its employees, in posseersion as 
custodian, G@lants remained ae custodian, both day and night, for 
three monthe. He was paid for his services by checks of the Lavwalle 
eompany, which slie¢e paid for eleetrie lights, telephone, ete. Glantz 
was acting ae custodian for the LaSalle company at the time of Levy 
and at the tine of the trial. 

when the LaSalle company first took possession, an auction 
sale wae advertised in the name of the Midwest Printers Machinery 
Works, The sale was in charge of Hr, Winternits, but the property was 
not sold, The custodian testified the Judgment debtor, Willian 
Sehwartz, came over at tines to show customers the machinery; that 
sometimes he was there every day, sowetimes twice a week; that he 
4idna't take anything out of the building without peruiesion froa the 
Latalle company. The witnese did net know what salese were wade by 
William Schwarts but knew that he (the witness) had permigeion many 
tines from the LaSalle compeny to take machinery out. je could not 
remember how many times William Sehwarts had been at the place nor 
remember the last time he saw him there, He did net remember whe ther 
& cutting machine war moved out on December &, but he renembered 
cutting machines were taken out and sold, He didn't know whe ther 
Sehnwert2 showed these wachines, The winterntts company war also 
eelling machinery there, . 

Kleinman, general manager of the Lacalle company, testified 
thet after the termination of the conditional sales contract he told 


we 

taemshet ect ef yfaegenq side Sloaer yequeo elf{eeal on? web anne 

00 gaiseviled bas gnitvueexe {8,594,814 40% 2 daawsiod mat itty zotdes 
~ot naw sf017 Said Sobiverg doide teeneetge aoine Innoitihnss 9 mid 
eoluq asadoung off Yo tnemtadq gatiaeq (sqeoo vi fatal od at hevies 
naliiie <3 @e tnenetat athe ,850L 83 aedmevol sidayeg saw one 

weve bawiwee e200 dean of dee etumqorg edt Yo eevelq exes Bion —— 

evh Taomyeg acte at hetinateb efi stnaquee efiatal edd Of abeooerq ad? 

os? Yo motaasseod eos ynoqwoe eiLalled edd noqueredw ,08 redmovel 

as soleveseoq al ,seoyoiqwa agt to one stash efc% tug haa yYtteqorq 
30% .douis Soa Yah Sood  aelbetave e6 benteaset atm ,salbotaue 
eliatal ett 10 sdoedo <i seotvue, sid vet Steq saw oh vadvnom eoudt 
rtrel® .ote ,snorigeled ,etagil olwtoels set bisq eale dott: ~ynaqued 
sel Te emsd el? te qraquee eifedad eff wet aethotaus en gation uey 
elad ed? to ants off ta baa 

aotfous te ,aoieesnetg Moo? text? yamqwon efieiad off? seme 6 OY 

|  “Wetites sieisini Saovhin wie To omen et? af bertirevds sew elas 
 aaw Youegouy edd feud ,aelavetAdy 1 to eguasio ot sew elas edt,» ,axtrow 
gost pyuenidess eid etamesewe wosin Of soak? Ja devo omad , etaneria® 
te Pact pleew 2 colwey gandi omer , ab Yaeve exsd? saw od Sontsomoe 
! ent ort netestorreg Swostdiw gntblind edd te uo gaideyns osae F! absb 
OR ORAM anew. meta tan wend tem BL> akentiw adh .yamghos! fisted 
sew apleasorreg bad (asentiw oct) af dale wend cad siceedet eetiliw 
tom 6ivep olf tuo yreniioaw edad of yYouquoo olfeted aio sont somte 

| 20m sasigq eff ta sesd bad stcawie® matlilv. set? yaan wod wedwemes 
hbeiodmemea of tud .8 gTedesoe ge Sno beveon. naw enttoaw guittue 2& 

todd oviw womd @'abld of .blos baa two neta? exer sentdbam galeene 
«ofa saw Yaaqmoo stteretagy eff. ,esalsonm esedy Rowodle sftewsiot 
jae? yt Let nee erlt wll es ores. Uieatdose gation 
Hertstec? esunques #Liated dt ‘te segenen Lorneg —— nit 


btn. ot Un Te eee hin Been Cmte Od See ee le Qi os £66 me Bie 











=S- 
William “ehwartz that if he had an opvortunity to sell any of the 
machinery he (the witness) would make arrangements to ¢ell Kip a 
piece, but he said he didn't think Sehwarts sold any after Noveuber 23, 

Movember 29, 1235, Sahwartsz paid to the Lavalle seompany the 
sum of $426.60, taking ite receipt, and on hevember 50, he paid 
$73.40, 

The Turner company argues that the transaction by which the 
LaSelle company took title te thie property and aold i¢ te William 
Sehwarte war in effect a wortgage as security for the money advanced 
by the LaSalle company for the purchase of the equipment, and that 
not being recorded 1% wae void ae to creditors under §1 of the 
Tllinois Revised Statutes, ch. 95. Thie contention can not be sus- 
tained on the undisputed facts. The sale from “elig to the Lavalle 
company 414 not conetitute a chattel mortgage because there was no 
debt from plaintiff to Selig. Plaintiff paid ®*elig for the plant and 
received an abeolute bill of sale, ‘The traneaction between Willian 
Sehwarts, the judgment debtor, and the Lavelle company by which 
Sehwarte became possessed of the property wae a conditional sales 
agreement and not a mortgege. The transaction wae in conformity with 
§26 of the Uniform Sales act (Ill, Kev. States, ch. 12la) and the title 
ef the Lavalle company prior to the time when the price wes to be paid 
wae superior to that of ereditors, Silverthorne v. Chapuan, 259 T11, 
App. 280; Horvitz v. Leibowits, 274 Ill. App. 196. then the debt — 
became Cue plaintiff took immediate and exelusive possession, In the 
absence of tome conduct by which the LaSalle company would be pre- 
cluded, ae provided by §23 of the Uniform Sales act, its rights would 
be superior to those of eny creditor whe might levy. At the tise of 
the levy and even up to the time of the trial the custedian of plain- 
tiff was in possession of the goods, (ce Smith-iurd Ill, Anno. State, 
eh, 121-1/2, $20, p. 489, and $23, p. 499.) Sherer- Gillett cg. v. 
Long, 318 Ill, 432, 149 N. E. 228; Mat'l Sank of the fepublie of 


Ge 
oat 2s Yon Let ef YtIewTIeye de bad ed Sf tedt stimwio® 

a @i¢ [fee of ateemeanaris sdaw Sivow (eect ly edt) od Yrentiiosa 

2S vedmere cePte yaa Slee sfaavtio® anid? at Siew of tnd ,coalkg 
ad? ¥maqwee eilatas off 63 bkag stravip® (6602 .88 tedmerel © ow 
Shae of °C vedawvell ae bon ,Pqleooa Bf gHtiet (08.0895 Io mae 

3 o⸗aAlri 

on? aoide yi nolfosenet? ef? fad’ eengta Yaeqmoe cedty? cfff 

| meiiliv o¢ $2 bles See ysreqotg elds of OL7L8 dood yYnaqghdo olfeted 
heonavhe Lorem asf Vet Yetauees Ae egagseoe 4 Teetle al saw ettewded 
fait Son .Jooetupe ed? to saaderwa od? ae? yasqmes of lotal add yd 
gett Re £8 tobe eeottbere oF as BLOv aay $b Debro9ed! gated-ted 
tet ad Fon mae aoltnesaes side OC tie yaePudat? Dontveh etonkLst 
afie’ad etf of gife® soxt eise off watoat beteeoethaw eff me bontat 
on vaw eted? eewaced egaaduom Isteade aA sousteaneo tom bb yaaquee 
bts tanlg sd3 4Ot Geko Bima Ttentelt .giloet of WttImtalq moxt sdob 
nalilte neevted mo¥onouns? off olan Yo {Lid etuieedarna hevtesen 
fotde yd qhaqmes effated od? baa .tetded Saemgbyt sd? .2tcawdsl 
asian lanolsiines a amr etsaqera O47 Yo beaseesog emased . atumetio’® 
 «dtiw Ytlenetaee af saw Noltoaenew ec? .egegiitos @ Som Sua Inomestys 
 efaee edt nna: (ages i .9tad0 vet {£5} tee esfa® arotiad ett 29-086 
Bag od OF saw selxq aif madw owl? ond of coduy Ynsqnoo efleted ede ke 
fff @88 eneedienyiie $ .euesibere To tad? of sedteqme sau 
tab ete medi §.88f .qqh .LEE ONS pd twodted av zgeevepi 1882 gga 
out ai ,melesesser ovienfons baa atetdawmt doot BiidaLaly gue emaved 
-s1g of Sinow Yasqmee ellatial ett detdw yd Joubnog amos. To: eameada 
bivew efdgiy atk tos velat acotiny ade to o8% Wd debivor se hebuse 
to satd edt A evel eiigie ony tosthew Yan to ased? 6 celeque ed 
~Hlaly TO isihoteud of Lalas wre To outs end OF qu nove Snacyvel ent 
(sedaT® ,ommd .LfT Suwtadgle® ost)  ehoog add Te nefadessoqeal saw I2te 
| AD EESLLAD cape (00 4 O80 aw 00mg nee 















2», O68 112. 366, 192 H, &. 215; and west 
ny ¥. Grahams, 266 Tll. App. 887, 2 8, %, 24 172, 
As will aprear from the opinion filed in Ho, 4089¢, the 





manner in which this care was tried is subject te oriticien, but in ee 
far ae the property at S20 Ww. S5th street ts concerned the rights of 
plaintiff are so clear that these errors could not in any way affect 
the serite of thie suit, in whieh 1t is believed substantial justice 
wae attained, 

JUDGMENT APPIRHED, 
O'Connor, P.J., and MeSurely, J., eoneur, 





net bea i813 47 A 696 908,100,988 goed wosdaatna ties .y gansta 
SVE DS oH Ne TOR Gh ET 088 spalone 7, ramumed epmaatt gadmutye 
08 el ipa 108 2 DOSED Anantne 268, PED xerco FEIN. Oe. candy 
Septet, *4, Petad, emt. 20°°. 0° — 
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2 Yow ys at ton £ioo sxowee ovede fait vente on ona TisEatalg 
- Sedteh, Lebtentedus Davediod a2 £2 dott at ttum eta Dq.etiven eat 
eli ite aoe Bites oop eeveeeng efds ef OfF 28 Gees — 
—————— re noma $4 seagate a feethe as san a 
| ditt te TO ation. Ce Ae tk bbe san 22 datinwowe? sated ten 
see a Dee ae Ute Ae Oe oe ee ee eR 
aifaet eft wD gifs’ cer? ofea eff yatoot beteqgeiiaz ott. a9 beates J 
a ee ee ee aa a eee ad few BAS (magne 
bite Ponty ee wel wate fee Wee) “plies ce Yee »— vet, o> | 
meri hes guested thiitesae ent vatee te fis: — ha ; 
Aandi et verge siete ext ie storied Sreceghat- yah woh 
oelGk Jake? Pokus © tee BP eeye Ae Fe SepeeNtbeg —E . — 
oie Peeled no tae cet Nkee ag? | .gplete econ Ren tnemwary 
elves wet tke 462Re de eee en COR) te ————— 
ibhag sf of saw anter 7 ee ed? of Teta — 9 a F 
LES WOH gga Je" petal 
Sieh ate waa Bel ugg qo are ———— 
om «i .eelersesde erine dew Sem ane daeenoieed ae — — er 













— 






to oak eed 2k ered tiger ae Tee em RenmmMMtEleh 
-slaig te netietebs a9 Satcs ae Wo eke and be gm apres eget 
e582 — WEED wen) hoop’ AMAR ae 





— 






* J é | 

‘ és 

SITY MATIONAY TRUST COMPANY f | 
OF EVANSTON,/a Hati@nal Sanking Corp £ A 
a 


@ gixcurr sOURT, 
Sort ral 
BARAY >, 


MADDEN, 7 aaa —— A. 5 548* 


MA, JUSTICE MATCHETT GELIVERED THR OPINION OF THE COURT, 

Defendants appeal from an order entered Secember 11, 1939, in 
a ereditor's suit directing that the proceedea ef two purchase money 
mortgage notes held in eserow pending the suit,should be applied te the 
satisfaetion of plaintiff's judgment, The cause wae beard wpen plain- 
tirf's supplemental bill as amended, the anewer of defendants and the 
reply of plaintiff upon the stipulation of the parties as te facta 
filed in the cauee Lecember 22, 1938, and evidence taken in open court, 
The facte are not in diepute, The recevery of the judgment,the re- 
turn of the execution unsatisfied, ete., are admitted, The purchase 
money mortgage notes were proceeds from the eale of 4 part of certain 
lands in Sook county, which on June 18, 1928, were owned in fee e#laple 
by Henry A. Pearzons, the father of the judgment debter, The title 
wae regietered under the Torrens law, 


Aeruary as. 1928, Henry A, Pearsons conveyed thie land te 


the Comsercial fruet and Savinge Sank upon certain trusts declared in 
writing, of which the Judgment debtor was beneficisry. August 4, esi, 
by written direction of Henry 4, Pearsons and Harry °. Pearsons, the 
bank by ceed conveyed the land te defendent Katharine °. Sadden, she 
at the same time executing and delivering thie writing! *], Eatharine 
P, Hadden, declare that I hold title to the following deseribed par- 
eels of land, conveyed to we this day by Commercial Trust and Savings 
Bank, aa Trustee for the benefit of Marry '. Pearsons: ***" The 






. 0 Fanaa 
riivakela 
xnaas 


8 K? Pr ame | yO admelleggqa ; bantalte eee 


rauos WHY YO HOTWITO SUT GHARVIUSG THAHDTAN ¢ SOXTEUE ITH ‘ 
mt ,06@L ff t9dmeee! hexetas tobe ne mort 8 eenabaered r 
genom seacdoiwe Oey te eheonorg eff Sad? galvoerth ive 0 nee heed “ 
edt o¢ BSeliqus ed bivede tise ef? gn tbneq worsees al Bled seven egagitosm 
-nialq nequ bree sae saueo off .tnoaghwl e'tittatalg to nelveateizav 
ad? Bas afasbestel te tewena at!9 ,bebneme ea [id Latoomelqqua a' 2229 
efoat of as entvenq ed? to moltvaluqiga ed? meoqu Ttisgnlalq Yo ylqet 
.iqn0e asqe at aedat sonebtve ban ,OteL Sk aedmeoed sexno eff at DoLit 
-91 o02 ,Snswgoel ed? te queveces off  efeqeth at fon om atoa?t ef? 
ssadotig egf bettiaie ere ,.0%@ ,Selteltasaw molsueexe edd Yo mint 
alates to txsq 2 26 sfan on? mont abeeoe1g wrew Beton sgegtiom Yonom 
 gigqnts est at Seawe exsw ,880L .Of enut no dotdw ,yfawoo food al ebast 
elite ef? .totdeh tremgiel sav to asd¢st sdf ,anosiaes .A yunel yd 
wal enero? ef? tobau Beretalget saw 
at Saal eid? beyevnes saeatast .A prime Ser 82 (qraum ns 
at beweloed eter? alstaeo sow: anol agaiva® bas SeurT Iakoueaned ons 
(sBCL .b tenguh .yrsteftened saw rotdeb tremabul, ed? Mofdw Yo ,gal?lew 
eit ,snoeres? .< yrusl Bas sworreet .A yunell to solseetld nestiaw ys 
win nedSeli . ontradseX sasineteh of bast edt Seyevace bead yw tned 
“ontaadite? .1* tguttine efdt gnivevifed Sno gattueexe omtv oman ont ts 
~tay bedixeseh gatwolfet ed? of si¢i? Biot I tadt etaloeb nobball .% 
asnived Bua Ssun? Latotaamod yoysb utdt om of Deyevnos ,daal Yo | aoe . 


edt “*°* innosaass weal Yo FARomed ad oY soma an 





oXTHVOO ROOD 














-2~ 
writing deseribes the lande and ia sworn te by Katharine ©, Madden be- 
fore a notary public. 

Plaintiff's judgment wae for 36,492.89, it was reecvered 
Auguet 12, 1925, in a eult on a note dated Mareh 20, 1926, Thies suit 
was begun Getober 4, 1938, and notice of lis pendene filed in the of- 
fiee of the Segietrar, 

Attached. te the *tipulation of facts filed in the court 
Deceaber 22, 1936, are exhibite whieh are copies of the instruments 
ané conveyances above dorseribed, The etipulation of the parties con- 
siets of nineteen paragraphs. 40, 16 is ase follows: ‘*That the 
purchase money mortgages deposited in escrow by Katharine *, “adden be 
taken and held in subetitution for the land therein desoribed and sub- 
Jeet to the eave truste, claims and liabilities ag said land wae held 
prior to ite conveyance, and that the above entitled cause proceed 
against saigé mortgages and the proceeds thereof, with the same forse 
and effect ae the cawe might have been prosecuted against said land had 
title vemained in Katharine fF, Hadden as it wae on the date ef the 
filing of the above entitled cause, it is the intention of the parties 
that if the land deseribed in the purchase money mortgages war or 
could be subject to the lien of the plaintiff's judgment egeinet Sarry 
P. Pearsons, or could be reached or subjected by Creditor's Complaint 
to the payment thereof, the purchase money mortgages might be reached, 
#014 or applied to the satisfaction of sald judgment.‘ The ith 
paragraph provides: "The Stipulation shall be filed in the above en- 
titled cause and the recitations, terns, conditions and agreements 
contained herein shall be considered ar part of the pleadinge ef the 
parties hereto and be conclusive upon the parties.” 

Katharine ?, Hedéen 1a a cousin of Harry ?, Pearcone, who 
during these transactions wae and now ile a practicing lawyer. The 
evidence shows that cince she tock the title ahe bes held it merely 
for the convenience of the judgment debtor; that the judgment debtor 


=e 

ond mehbal .% eniuadted ef at mxowe 2 bua ehaat ett sedinoenh paltiity 
Doxevoees saw 72 .26.9G%,.89 t0% amw — — — 
tive e107 n douek Retad fon # mo Chum @ mt 468L . OL damgua 
=o oid mt DOLL seebens AA te sekton Ban OSCL .# medere0 auped. aay 
| sxeusatgeh edt Yo sont 

fue> off ai balk siomt te soltalngisa oa at bedoatta oy 
BPnawrttans eott to betger oun Moldy astdldze ous BBL ,88 —— 
-f00 selfusg od? Yo motfalagitea eff .Sedixoneh sveds seonsyernes bas 
ot? tade* tewollet oa at BL .ot ‘orqnrgated seetoata Ye agake 

“od nebhol’ .< aefisiteas Yo wovtnc nt bedieoces sopeyyioe Yaron condone 
 adiin Dna Bedteones atewed? oa od? 16Y Hotfus tvedun af bied tad Wide 
Died wae Bnaf bis sc noftEftdnst Bae vatato otemtd cade dae OF FOO, 
| Besverg esubo SS LSI¥He oveds odd Fast bas (oomeyevace Het OF Yelle 
“goxet seas ad? Heke \Yoousds sbeeoord oof bas wogayevn Stkw fantdge 
bad inal bkae Seniage betvoonod ased evid ¢4g2 owes ocd 86 GosTTe Bits 
"adit Yo ovad eft ne saw 24 ba nebbail A Watisitad mt bodtaden Siete 
seltisg edt Ye moteneknt ont of Ft Jeauaw Befetznd ovede edt Yd gnéftt 
te aw Segeighton Yemen eanutowwe ote nf Bedetoweb Baur Bde Yt alle 
| "tia Seslegs thomgiut ertivadety edt Yo mett ead ot sootdua Wa Bivdd — 
* Yatuiqded eof ther? (Wt Batowtdin YO Béiioder Wa BEE Le Jundedet” se 
bedoser od tdgin segagiter queen eaadorug ody, Yosdedd Snoiryaq dae UP 
AP0f oft *.2anmgtwt Biee Ye woltddtatsad edé of SéFfaqs Wo Bie 

aie oveda oft ni Belli of Ttad: moréatdqren omer” — 77 : 
“! “Nenemeenge Bus enolgtbnce eset? (anoldat soos od? baa sauee ‘pottis 
* “at 0 esatbeota od? to fade so Botebindoe od inde shoud wentdtdon 
* nottaeg oi? aoqw ovinufonos of Bia ofeted saittaq 

Othe BHoonses lg went 46 hidwos a ef Rendan ‘t's diisagad w aw 
“eat? — —— —— ftom } sbode Yariud 

— a bled vad oa Aru foot wo ‘conle add eveds sonebive 


neta » whez me 5* on biel Yo sien 
—— raoanoui oar sat * eb ——— add to et cot 
Te tonod add wit ——— an + ——— 














a 
hae received the proceeds of sales; that she haa aeted entirely at hie 
direetion, anéd it seems on plsin equitable principles pleintiff is 
entitiea te the relief prayed unless some controlling rule of law 
forbids, . 

befendante say theee mortgages may not be applied te the 
judgment against Harry ©. Pearsons because the writings by which the 
supposed truet in Katharine *, Hadden wae created show the laek of 
@lemente necessary to the crestion of a trust, ‘They eay the title, 
therefore, vested in Katharine °, Hadden in her own right snd thet 
she holde clear of the claias of creditors of the Judgment debter. To 
thie point ie cited Marble v. Marble, 304 Ill, 22%-255; Osbern v. 
Reariok, 325 T11, 629-557; Illineis, ete. v. Jones, 38h fil. 498-506, 
and Gurnett v. Mutual, ete., 566 I11, 612, These cases do not eustain 
the proposition to which they are cited. In all of them questions are 
considered with reference to the existence of active trustee, All 
these caves hold that to create such a trust requires a definite sub- 
jeet matter, o definite beneficiary and e definite statement ae to the 
nature and quantity of interest of the beneficiary, and the manner in 
whieh the truet is to be performed, These must be set forth with 
certainty. 

¥e hold the trust ereated in iatharine Hadden by her 
declaration at the time she took title in sufficiently clear and 
definite in these reepecte, The land which ie the subject matter of 
the trust is definitely deseribea, The beneficiary is definitely 
named, The duties of the trustee are clear and certain, which is 
merely te holé the title for the beneficiary. *e hola the trust is 
not lacking in any of theee respects. Hanifestly, however, the trust 
created ie a dry ae Gietinguished from an sctive trust, The dis- 
tinetion is clearly pointed out in Sarrie v, Ferguy, 207 T11, 634,558, 
whieh hae been followed in numeroue cases, in substanes, a ary trust 
ie one in which, ae here, the trustes 1s « sere passive depositary of 


<i 
eld ta Ylevitne Setee ead ots sade jaelaw le sbheoeet, edd hoviooet vail 
ef ttitnialy —— eldatiupe mielg se eneee 02 Sas ,welso~rth 

wel to sive yal llowsoo emee aeolay hegetq Tellot sat o7 beltiine 

adi? of baficgs ef ton You aegepiaom snarls Yau adnabastel © 9! fo 

efv dotdwy qd agat?iqw edt seuneed ancesac’ .« youall Santage Taengeal, 
te unel ey weds badasto sew sebhel .7f sndusdtad af Cewis Sesoqque 
,eivle ode yas youl .tewrd 6 to welesets sid of ytassesen staomels 
gad Sne tian awo ved af meShet .¢ enfeadeeN at Boteev .wrotereds 

cf .t0%ded tanmphwl off Yo siefthets Yo awtale edt Yo sacle sb fod ede 
¥ graded {4S8~eRS LAT 20%  ildweN wv aldaaN bette wt taleg wide 
~BO8-Gr LT 182 gonok .¥ eke seLOGhEAE yUGB+OR8 WLLT Bed tohaseh 
nhatews tom ob aepee cead? 229 Itt 88% , pte ssamgut sv Seensed baa 
exe anotsiaeup anat te fin oT bette wes Yodt dolce of notttuoqorq ait 
iL, ,atesi? erftos te senetaize ed? of smmereter atiw bereblanee 

-due ofialteS #2 sexlvos: tenes? « dope esacts of Dadt blod seeeo an add 
ek? of 24 Saeuetave einttd 2 bes Crateltened efialtes a ytettan teat 
af renmae orf Sa ,Yenlofteasd ad? Yo Seetetal to yettaasy Sis otntan 
Atiw dPeet See od Soom ese? dewtotieg of of ef taut edt vote 

aod Yd sehbat eatunitel af betaore deurt ade Bled of 

ns “nolo YLtnetelYta ef ofthe doot exe amie eit te nodtaneloed 

to veddsm geo(dua edt al dotde Smal e@f .ageoqee: ceeds aL etintteb 
VstintieS at qisleitened edt Jbediieeed Yletialteh ef sewed onde, 

ak deidy ,atatren ane teelo- ena esdusie? edt to wettub od? obama 

al tews? edt Aiod oY .qtekoltened ect trot afff? ‘edt Bod oo ylovem 
gewit off ,teveword ,yfeeetinal setoeqeun eoedt to tar at entvoal ton 

| w2ib et? veo? evites aa movt Sedalegeatin Lf os Yeh @ at betseto 
- obeeee EEE vos Meats? wv gbrre at tue betatog Ylvsels af solvents 
«fees? exh a yoenatedyvea al = .es0e9 euorexun nt bevolle? aced sad dotdw 
1e yuadinogeh evleneq exes 9 ef setest edt vores an ydoddwoat enomt 


x a yt. 


ode 

the preserty without ective @uties, The cases all held seach & trust 

ie exeeuted by the statute of Vsee so that nothing remains fer the 
trustee to do but eonvey the property upon the request of the benefici- 
ary. The truest undertaken by Katharine *, Hadden, 1% will be re- 
membered, states *I held title *** ag trustee for the benefit of Barry 
P, Pearsons ***,* This was clearly a dry or passive trust, the effeet 
of which wae to vest title in the beneficiary not the trustee, Tyler 
v. Tyler, 25 Ll. App. 333; Moll v. Gardner, 214 Ill. 248, 254-58, 

It ie next argued this property scannct be taken under 
erediter's bill by reason of the exception stated in #49 of the 
Chancery act (Smith-Murd Anno, Stats., ch. 22, p. 264), Thie section 
in eubstance provides that a judguent creditor may by this preeeeding 
reach any property, money or thing in action, ete., due to the debtor 








be Ne —— 


An our conclueion that the trust created in Katharine °, Hadden was & 
ary or peseive trust thie contention also is without merit. sell ¥. 
Sariner, 214 111. 249, If, however, we assume, ae defendants by their 
amendeé anewer aver and by evidence offered notwithetanding their 
stipulation te the contrary to show, thet the effect of the conveyance 
to Katherine FP, Hadden was to create an active trust of the same kind 
and nature as was brought inte existence by the original deed from 
Henry 4. Pearsone to the Commereiel Truet and Savings Sank and the 
@eclarstion of trust executed in connection therewith, we are never- 
theless convineed by our examination of these instruments thet the 
trust created thereby is not exempted by thie exception etated in thie 
section of the Chancery act, 

fheee inetruments placed the title in the bank but gave to 


the Judgment debtor (Harry ?. Pearsons) the exrnings, aveille and pro- 
eeeds of the real estate. He was given practically exoluaive power 


a. 

_ douys # dow biad Lia seeeo edi .eeiteh evieon swedtiu Yaeqosg edt 
ody 40) sutanen gaidton tage os aeat Yeo Otntate edt V Hotuooxe af 
~toltened ed? Yo Feempes onl? neque “oaegoTs ado Yovmee gud OD of setaurt 
~ot e¢ Litw #2 .sehhell .¢ sotnadzed yd aedattebay tawi? eff. ote 
vent to @ftened ed¢ wet cetera sa *”* oftit blot t* setae ,botedaea 
tegtie add .saucd wudsrac veo 934 «4 tixselo sew o a” 5 eaot zag⸗ ⸗. 
——— 
a ee eee ee ee eee 
gabe ooley et tommao eiraqenq eldt bougye deem Oh AE on 
act 26 Sei mt devara aetagenns off Yo monaey Ww Lid s'xottbene 
| | OLTQAB BAG (HRT oy 99 0, AOTE .omnA Paalin~da. ) $08, yroonad? 
| galboaoots aid ye yao vortbors Angsphut 6 tad? aebivoxg woaesadue ab 
| Aaah aut oP au ..086 ynotton at ganda 10 yacom yytueqens. waa. soaer 








— waa ov Ti Einguld {maboeleb odd page sede soages enpa wens 
4 Raw aebbal ,i entamisad ef beteone dewys odd tadt notewlonge awe mt 
Aen 2x98 tuodt iy st esta soktnetage ist tered eviesng 10. ¥td 
odd Yd agashsoten 2a eavosa ew ,tevened .20, 68, L6E 218. gonbaae 
| uted? gatbuatedtivgen Soustte eemehive yd bas teva coven behaoma 
somayevnne ↄca Yo soethe ad? stadt .wode oF xiavaaoa edt of molsaluqits 
batx aman od@ 29 faust endten, nn, o8geye.oF now aebball, 5 a toaa ad of 
aid Sas dnt egnive® Bao Faw? Lakovemap? edd of saqnises...A. yrnell 
~Teven 1a ew Saiweveds mokinenage ak betunene. gest te aotsetatagh 
edd Gad? atnewwitent cond’ Yo Keltensmsxe we YS beoatyace anetedd 
Bid? at Desate asizqoene atat ye berqeexe fon of ydetads, bedaste saund 
— , stea xxooaaaq at 29 eostege 

_e van ud dned 9 ot — sgh bonis ———— oversees 
ong baw efleve ,aqeteriae ote (anonsset 12 TO AE 
‘muuweg ovaen Lens ULLaePeaNT AaekG Oem oat ee 









é — ut ide P 
— is Ul 
* Oi, Ek Ie re i 


abe 
to Girect 41] deals with reference to the title, was given the power 
to menage and Control the land and the title, the right to sell and 
te receive the proceeds of mortgages, of tales or other dispositions 
of the premises, It wae provided the trustee bank might deal with 
the real antate or make deeds therste only when authorized in writing 
by Harry P. Pearsons; that the trustee ene net to be requirea to in- 
quire inte the propriety of ¢irections given by Marry ©, Fearsons, He 
was given the right of management, centrol, selling, renting and 
handling the property ené wae te receive the proceeds of any teles, 
Henry A, Pearson reserved the right to revoke the trust and to demand 
& reconveyance. He never Gid either, He is now dead. Ae a matter of 
fact, this provieion never at any tise in any wise limited the control 
or interest of Harry >. Fearvons in the premiges, OSefendante elite 
Binns v, Laforge, 191 I11, 898-607; Rejue v. Graham, 197 ill, 67; 
Yon Kesler v. Seully, 267 Tli. App. 495, and Firet National Sank v. 
Starkey, 190 T1l. App. 652, 

The Yon Kesler case involved a ependthrift trust. In the 
ReQua case 1t was held that the debter under the circumstances took an 
annuity as @ purchaser, and it was applied on his debt. in the Binns 
oure it wae held that a trust fund created by the will of # third 
porcon, and held under the control of trustees directed to pay the in- 
eome to the debtor, could not be reached by a creditor's bill te an 
amount neceesary for the maintenance of the beneficiary and her 
children, whe were dependent upon her for support. The case is 
practically distinguishable ae invelving se ependthrift trust, The 
Starkey case alge involved a testamentary trust where the control and 
management wae still in the hande of executors and trustees, and it 
wae held the interest of the debtor could not be reached by ereditor's 
bill prier te an order of distribution by reason of $49. All these 
eases are 4istinguishable, 

Section 49 expressly gives the creditor power to compel the 
discovery and application of any preperty “held in truet for hin, * 


* 


1a¥0q sit mevin caw ,elsid off oF sonoretes A be 24 ths soexks ‘ot 


enxe al 
‘baa Lfon of Yegia edt .of82e af? Bos Baal add foxtnce ine eonanen or 
of .»,ei aa 

anit Lacqe ti te4to <o sefaese ta ,segegttom 10 ebesoorg ode ovtsoot ot 


tiv Lash ¢dgie Aged eotagad sf? bebiverg saw 37 seoetmong sad t0 
anidiaw af bestvouds as as oy fne oreneds sbeob adam 4168 otates “tees edt 
“ak ot bouleper ef oe? ton sau satawd ad dass janoetset eeu | 
elf .enontast .¢ Ita yd newtg anotdoonts 10 wetvcora "eat oat oxtup 
~ betn gattaes gael ion -fortaes Fneneganan Yo rage ads sete ame 
tetae ye we ahnesety eat ovieoes os naw ‘bas waaera ea aatithaad 
F banner of baa dewst add etovex ot ‘agit aut por ve ex nowra04 A “anal 
te ast? am a oA .bseh won ot of vasdtte tS seven ox _ssouayernoowe 
— solv wa at ent Ye tf Tove aotetvent ty ula? toa? | 
gto atnabaeted 29a mete ‘en? nt naoriaat a — 555 
— ——— —* virt fer \enxotad .¥ bs 
v 2 a ae cs HET 08 ilive® <7 spree | 
. . | ee ee ve a on = 


~ Sltohseen SA Me, 
ad? . 







edt al teed ara⁊ daag⸗ ——— ons 
Dey 3 t ae. 
fa ‘doot Beonstamvorts ast aobaw worden ont “tat ‘Died nae f cane 


os #. ae 5 

anage wal ak 60d etd mo BedLaga * cy ‘haa crenadourg & oa x 
: SW Siew art : iN 

Buldt « to Litw etd yd Setarte baw? — saat Sied saw th ease 

nit of seit aiughts 

“ul et? yaq of Batoorts woetaut * foxgnee “alt reba Bled Saa — 


yo mis Rd Lah et 
‘as of Ife a'zetibers « 4d bedoaot “6 ton bives , edgy of eon 
ng tie §4 wen Jee 
xed baa vestottoned edt te ronanetatas ote ‘0% Timer soe — 

add, Sree 

at sano on? —2 <0 oat now ‘tashaeges ayaw ote 
é x sate dad te iottetatoek 
edt tuned Pitatt baeqe z ‘gaivieval * laasiuvaioa io 


we 0d o sag he 
bes Loxtaee ot otestu faust vistmematees ri * bev foval osia esac 
iat of Ye “Mind. 

?2 bas “hood aut? Bae ‘euedweexe to abmast posed at f titte auw —*— 
Ree), of to ⸗ 
a'aodibers yd bedones ed ton biuee — anit to “geetesal oid Bied saw 

4 


oe aue = .@hh Yo neeser ww noltwdiste 1th Ye xebso As oF z0ltq tthe 
| Send eh yas eldadaboyittels eee eotikd 
ett Teqnoe of cewce aor tbere: —— 20 — 
| Oba ea Shae od bfed® Viencmes “ne Ss mhdenttes bee ee 





=G~ 

that is, the judgment debtor, This seetion wae cepied from a similar 
Hew York etatute, Illinois courts in sconetruing 1t follow the con- 
struction which up to the time of ite ensetment here had been put 
upon 1% by the kew York courte. Eesua v. Graham, 167 Ill. 67, The 
Rew York courts Bave Reid that property, the title to which is held 
fer the debtor in a dry or passive trust, say be taken for hie debts, 
Nerdin v. Slocum, 71 N. Y, 345; Hallet v. Thompson, 5 Paige (H.¥.) 
583; Uliman v. Saueren, 106 N, ¥, S29, 346; Welle v. Ely, 11 NW. J. Bq, 
172. we hold the exception of the statute not applicable te trust 
property which has passed into the centre] and managesent of the debtor, 

Defendants next contend the truct in Zatharine *, Hadden wae 
a spendthrift trust and le not subject to be taken for debte of the 
beneficiary for that reason, They cite Keller v. Keller, 244 Tll. App, 
196; Hollowaty v. Prudential, ete., 282 Ill. App, 844, and #allage v. 
Foxwell, 260 fll, 616, 627, and similar cases. Keller ¥. eller 
perhape goes further than any other [llineis care in extending the ap- 
plication of the doctrine of the spendthrift truet, which wae approved 
by the Supreme court in the case of Steio v. Whitehead, 111 111, #47, 
ana has been fellewed ever gince, either that case nor any other in 
thie state, so far ae we are informed, helds that a spendthrift trust 
will be created unless manifestly it wae the clear intention of the 
ereator of the truest to bring such » trust into existence, The evi- 
dence here is not sufficient to disclose any much intention, 

It 4s pointed out the beneficiary was the son of the donor 
anG & man of mature years, end evidence wae introduced to the effect 
that at the tine the premises were conveyed te the bank by Ais father 
the beneficiary wae estranged from hie wife. ‘he later inetituted 
aivores proceedinge, The case reached this court and is reported in 
Eearsons v. Learsone, 262 Ill, App. 92,. the beneficiary was a lawyer. 
The inetrument by which Heary 4, Pearsons conveyed the property was 
apparently carefully prepared. If it hed been the intention to ereate 
& @pendthrift trust it 1s apparent it weuld have been so declared, 


* 

talinte # 0x3 beiqoe saw aotteon ole? ,sotdeb tnemphyt ods ,ot fade 
“ae ed@ wolie? #2 gatengengo si afauee efongilt — yu ⸗ ee arot welt 
18g, teed Dad oxed tasegpane a?! To ont? va? oF qu dotdw nolsourte 
od? .90 147 TSC gubah .ePavoo Axex well ed? yd #2 eoge 
Bisd of etsy of oftis att ,yhroqorq tant Sled oved: as-w00 trot wow 


say 


<87d0b old tet seks? od yam .dowre evened 30 yuh « at xoddeh ot aot 


(.¥.8) splat & wemomegtt .v Seiigh joh6 . .8 EY guoete ov y about 
apa -% HSE Ul .¥ pidge iG85 ,288 6 oH GOL gonpeed .' ¥ patil 1688 
Seutt of sidapilogs fen etutate ot Yo Old Goons ott bfod ow olf BFE 
toFdeb of Yo Inenegaree bas Loatmoe off ows Soeneg ea Hot che vrs 
«ROW Medial . eatnaritak at geet edt daotnos @xon ofanbrotet hn yl 
Belt Te pee ser gmtat od oF Fomtdue Jom 08 am ones eRupBaege p 
awa AST O83 opdiod .v geligd efte yedt_ Aesaen tal x02 © alos Teer 
-¥ goeliay dae ,00 .agh Li 988 , anon oa ea 
gelled .v aeLiea saenao waliate baa 788 IB SET 
ra neg snthaitne of seae aiond ili aadto WHA nats restr ae 
bovergys Seu doldy .seuat Tilt daege it 20 ontxto0b oat Yo noLtsonta 
s%bS .£5) ELL .basdot igs wv Eat Yo onan pt, nt Pruse, onwnqu adit ys 
at radte da⸗ Yen saas gest xedetel .ontn reve dowel lot need sad Sas 
taunt ⁊ ca dasas # Tady palod ,howtetal eta ew aa at oF erase ‘elds * 
ed? Yo solvnstat aneio alt saw 2 yitnetinse —8 bevaers e— 
~ive off eanetatxe odai fesrry « done ahi bad foun edt te ꝛo aero 
Keksnatal sows ve evolonth ot tuotorT ia ton at * — 
azoneb ait to noe oxi RaW vialoliened act ous betntog 8 " a i ie 
soorts ons OF Heoubortel saw scunhive bas ,eitsey eutan te nan 8 
wedtet aid ve. Snead eed oF Dexernee wre ec outs ae 3 tat 
fetat taal wotal edt tw aid ner? — — 
ah basroges: "7 Ana cauoo end badoaen eae oe 


- toynl 4 sae quater toned oat 3@ —9 ar * 






ra & = 





™ 
LR? Aa 


MM 








chteatanh da aed ene neeils ae A tee oh bi inne tea 


~ Ja 

Defendants ecouplain the court erred in ite rulings on the 
eamiesitbility of evidences. Upon sbjeetion by plaintiff, evicence 
effereé by defendants was excluded as te alleged conversations between 
Harry *. Pearsons and Satharine °, Hadden at the time of the execution 
of the deed to Kise Hadden, These eonvernations tended te contradict 
the writing which was a part of the stipulation and te show that she 
tock the title with the understanding it was to be held on the same 
truste isposed upon the bank from which ehe reerived the deed. dee 
fendante made an offer of preof on this point to whieh objection waa 
sustained. Gn their objection, also, evidence wae excluded ef a 
written declaration of trust executed by fathasrine *, Hadden at the 
request of Harry ©. Pearsons leng after the etipulation in this case 
was filed, and which tended te contradict the facts as recited in the 
etipulation, The evidence wae clearly an afterthought incenzistent 
with the facts ee stipulated and was preperly exeluded, 

Defendants point out the conveyances to the bank provided 
that the proceeds of the trust should be considered as personalty and 
not realty, and we are reminded that the statute of ‘ieee is not ap- 
plicable to personalty, %¢ are not unmindful of this provision in the 
original conveyance te the bank nor of the law applicable, The pro- 
vision wae applicable, hewever, to the proceeds of the trust rather 
than the subject matter of the truet iteelf, The written request of 
Henry A, end Harry P, Pearsons to the bank to convey te Katharine *, 
Hadden, we think, waived thie provision in eo far as they are con- 
cerned, owever,in view of the actusl previsions of that declaration 


of trust, as we have already pointed cut, and in view of the absolute 
control over thie property which the debtor hee at all times possessed 
and nowpossesses, we held 1% is subject to be taken for his debts 
under either the general rules of chancery or the epecifie orevisions 
of $49 of the Chancery act. The etatute Goer not exempt from ite ap~ 
plication property from whatever source which hes metunlly passed inte 
poesesaion of the debtor and is being used by hie for his own purposes, 


- 

— mo egalivs efi si Sexts Sayes ails — ꝛaaaa ꝛreee 
eonebive stiiveialg qt eolteeide seoql .eemebive Te. xttStétaninbe 
aeevSed saglianteraoe begeila of 36 bebulose saw atnabneteb Xd benxette 
molisoons ef? Ye amis oft ta aebhsl ,* ealiedtad bas ancersel.% warad 
folbersnoe of bebeet anottaerevees eacdT aehbsll act of Desh ed? to 
ode tad wode of Anu seitetugtte ed? to guaq 8 eew dotdw gatdiaw edd 
ease add ne Pied od of sav tt gatbanterebay edd Atty alsi? edt dood 

~sG bast od? Seviesss ole Moldy sett Anad ed? soqe beseqal aseuat 

any solteetde seisy 99 gateq alas mo Yoo7g to aelte na sham ataadag? 

® I© beduloxe sav sonedive ,cala .agltoelde sted? a0 ,bealateua 

982 Se ombbal .5 sutuadied yt Botwoexe fava? Yo motgeraloed nettinw 
saao oad ah notialugste ed? rette gaol enoatacl «1 yrtsll to deqmpey 

eas nt belive: ax a3ea) oft seLharzage ef Sobues doldw das fet ane 
cnet aanoons Pdguodd sat te aS Ursele aay eanebive eat Mt 
-bobeiaxe yiaegerg tau baa betalvqhss an teen, wd t-te 
bebivetg Asisd alt a? sonsyarace add suo Snteq atsabasteG . . 4... 
bas (iiageeieg ae bersbienen ed dived saws? 9? te ahesoorg oft dadt 
nga Tom at noall ie studado att tad? Debnines sim au baa .yelaor som 
ei? 22 noietvou eict te iutintany fon ata ov ....¥8Lenented of eldackiq 
“07g adi .eidaelicqa wal att te tom dnad eft of sonayernce tantpine 
roae a toust ef? lo aheseotg ad? of yrevewad .eldaoliqgs saw aolaty 
te teeupet neztiaw eft dinate tawat odd to tadtam soeléue edt nadd 
. onttad?sA of ysvaes of xasd od? of anoguse’ ..4 ceva Acad yunell 
~A00 sie You? 8 ast oe at aetetveng aid? bevtaw ,dnidt ow ,sebball 
aeltazsioeh fads Yo anolatvorg fawtea aele Yo welv ai,sevewol  .bemisa 


siufoada edt te weiv af Sas .3uo betateq ybaettla ovad ew aa ,sausd To 
doan as aoq seal? ifs ta oat sosdeb oat Malte Neteqons est — a 
atdelh ata 02 outet od of Footdua ad + bled w ssonsesaoqved baa ae : 
enotatvory oitioeg: sdf 20 eisonado te sour faveney edt andele tebas ag 
er Rot rquinte ren sob srutass ext” S90 yrewnadt® aft Y0-@bt to 
| otal beaesq YLiaxiom end dottw eorwee vevetery mort Yfeeqote motventig 
-SmGETw|E AWE Bid “Ol ads ys Beaw gated ef Sum aetdeh eff to aolneeaseq 


| nee Fae vane * — t4 24 Sewit ‘in haoge, 2 





——— ⏑⏑ 





wo Be 
We hola this property was liable for the debte of Harry °, Fearecens, 
the judgment debter, 
The Geeree will be affirsed, 
RECKEX AFPIAMRD, 


O*Gonner, F.., and Nevurely, J., concur. 


























nt HA ane eS © weit ae 


| Gener S es nage — sere ety h hte e 8* ** 


| 
| 
| 





| ate, Anh dn ok 20, pehpetl ! pee ? 
| — — — ae 
“ot fines id Dav inady mle sedde ep Anat Og. meee ) 

f ‘ier ob aang 18 90S, 90 mt 8 Sa 
4.38 Doteless on nanan Le ~aotenetse Gham, OR» . 


| 
¥ oa? a oot, .2 oatageitad set tatabane £99. ——— 
| 





Shee Ghat Bh — — — — aca a⸗ aä pred screen, —— pats 
wns ck Des swrn ca seat le Sathana ane, wt babes Atte Ne yl 
aona tagora ——— — — i Rit Me⸗ Pon gran 
oes ‘Sango, aay ban, Setadvelia, sii 
hebietey, sitive i? 2 omenyRT AM adit tae Sete aamaba 
Aa Wiaaorieg fe ynuncomen at AR, Bee WAS 39,9 
740 Tam Oh won 2x seyate alt Bale palsies ek: te bt Pha 
ody at sobalvors, pest tm feo. OE PRA H.R 4 J * 
— oad  stisiawtsoga cei ae 1% nem sind att Of, conmymenen, him 
ania dees Ad? YO Rimmer, st, ok ennenech yale s Lame i 
tn, teegpen nattian aft. ashy * —* 








| aes (iis eth ba 01% 00 shauna * 
an ⸗g acun tons tell te zuchda topunn mete me 
| tintoria edt te. vely wk sen fa, va o 
| Rwatestoq eoe2? ate | A oxi sagt ah: * 


7 

atten ait ae aena os — — 
won bda Ariavn⸗ iat Vea 

‘tee nate — 








whee WER ——————— 





t OF ERROR TO 






MUNICIPAL COURT 


2 3 av {Ae 549 
MA, JUCTICE MATCHETT DELIVERED TRE OPINION OF THE COURT, 

Plaintiff in error was arrested without a warrant and July 
6, 1939, arraigned on an information which charged thet on the let 
day of July, 1939, he “did then and there unlawfully, knowingly and 
willfully cause, sid and encourage Marvin Dupont #ilseon then and there 
being a male child under the age of 17 years to be or to become a 
Gelinauent ehilé, ané did knowingly and willfully de acts which 
Girectly tended to render such child « delinquent child,® in viclation 
of par. 104, ch, 38 of the Tllinols Statutes, 1957, The information 
wae @igned by Beerie Wilson and purports to have been subscribed and 
aworn to by her. fhe record shows that leave to file the information 
wae given; that defendant was present in open court; that the court 
took jurisdiction of defendant's person and ordered the bailiff to 
take him into custody; that defendant wac arraigned and advised by the 
court of hie right to trial by jury; that he pleaded not guilty, 
waiving trial by jury and submitted his cause to trial by the court; 
that after hearing the testimony and arguments of counsel, the court 
found defendant guilty in manner and form ae alleged in the information 
of contributing to the delinquency of a child; that Judguent wae 
entered to that effeet and defendant sentenced to serve in the House 
of Correction for one year. 

The evidence taken upon the trial is not preserved by bill 
of exceptions or report of proceedings. The Judgment was entered July 
6, 1939, February 9, 1940, defendant made ao motion to expunge the 
- Judgment of July 6, 1939, vaeate it, quash the mittimus and discharge 
the defendant. The grounds of the motion were stated to be that the 
information failed to charge * criminal offense ae required by Art. 2, 
49 of the Tllinoie Constitution: that the information was veid beeanse 











i 
OT OANA TO TT 
THVOO JALTOIUUH 


Caan ¥ be 


.fAWOO MT YO ROTMIGO Sat daxividga Tesuoam aOrTsUy Ae 
vist bas inaview « Juodtiw beteevie sew tors af Trisalelt 
tol edt ao tad? beguade detty sottamrotat aa fo beaptere ,CCeL .O 
baw Yigalwond .Viiviwains ered? baa med? BID” ed , Otel tint Yo yab 

ete? Sas weds monity tnequwt alvish egetwoone bas Sis vonsne YALU 
& emooed of. 10 od of wuasy TE 10 ope edd aabew Side ofan a pated 
doidw evoa ob YLiutiIiw bas <yIpetwomi bLh bas ,bitde sneupalies — 
molgaloiv mi *, fide taeupatieh a Bits dove rebse+ el Bebnes “Utoouts 
noisaarotat of? SSCL ,votueata stoatifl edd to 8% .to oor 18g to 
bes bediqosdse ased avai of ataoquvg bas meali¥ oloeed Yd hongle aaw 
neliawretal edt efft of evael tad? eworis broeet oc? ted yd of micwe 
faueo oc? tails jPuweo nece af Sneeetq saw ¢asbnoteb tans jnevly eaw 
of TLilad oA? hovel Sos noateg e'taabaeted to nottotbatiot soos 
eld YC bestvSe bas bengtarts saw Snabneted Sad? pebotawe otal mid exaz 
Wily tos Sebaeig et Jedd (yrs yd Labet of digit afd to sawoo 
ze aAuos od YS Intud of sense nd botsindys daa yun WW Lat gaiviaw 
davon ods loanweo Io otmemugis bas Ymomtsaes sat gatused cette sade 
noltamiotal edd ni begelie ea aret bas cosnam at yt Ling dnabaeted Bayo? 
saw tnhompiwl tadd ~bitdo « te yonoupat ied eae of xau aataoaoo Ye 
eavok ed? al ovaes od Heonetnes Snabneteh baa tootie ta0% of Setetne 
é or one TOT aoiue· vved To 
{iid yd Bovresexq ton af Latat eft noqe asaa⸗ eonebive ofE 
| Vint Seresas saw toenrgbut ef! egekBeseorg te Pxoqes +0 anoteqeoxe r0 
| eat eynugxs of nolton a ebsm taebueted OGL .@ Tomredos 00k 2 af i 
| (@gtadcaib bas aumisein eft daaup ,82 stasav_ sQSOL 8 vate 0 * 
— —— tad? ef of Detase etew molten edt Yo ahaworg ect 8 
«8 .da4 Yd Dottypod ea canstio Lantuluo a sytaso ot be. 













-f- 

the verification to it purporte to have been acknowledged in the year 
"19," which was 1920 years before the alleged offenre was committed; 
that the mittimue or warrant of commitment wae void and was issued in 
violation of Art. 2, §2 of the Constitution of Tllinois and the 
Fourteenth Amendment to the Constitution of the United “tates; that 
defendant was not represented by counsel and the court was without 
juriediction to try the eause for that reason, and that the trial 

was held in violation of Art. 2, §9 of the Conetitution of Illinois; 
that defendant had a meritorious defense whieh he wae prevented from 
presenting without fault or negligence on his part by reason of 
excusable mistake and ignorance. 

The People by the State's Attorney anewered and later made 
a motion to strike defendant's motion which was granted and the 
motion denied, Defendant then sued out this writ of error. 

It 16 urged for revereal that while the information charges | 
the crime to have been committed July 1, 1939, the information ap- 
peare to have been verified in the year 19. ‘efendant cites People v. 
Weinstein, 255 111, 530, and other casee, In People v. MoCullough, 
206 Ill. App. 269, this court held that where a defendant went te 
trial without objecting to defects in the verification of the infor- 
mation such defeets were waived. 

It 1s urged that the information fails to charge a crime 
because it faile to set out what particular acts, if any, defendant 
committed. Feople v. Ellis, 185 Ill. App. 417, and similar cases are 


relied on, ‘The information here wae in the language of the statute, 
and this was held to be sufficient in People v. Yallace, 185 [11. App. 
214, A similar ruling wae made by thie court in People v. Yslker, 
(Opinion abetracted) 306 Tll, App. 600. 

Other points made by plaintiff in error are based upon the 
aesumption thet the information was fatally defective which, ae we 
have seen, was not the case, It is, therefore, unnecessary to give 
further consideration to such points. The Judgwent will be effirmed, 


JUDGMENT AFFIAMED, 
O'Gonnor, F.J,., and MeSurely, J,., coneur. 


a20y of3 mi Deghelwcatios need evad of attoquug 71 Of sottaotituey edt 
{oes tumoe sew genetic beyelis edt oveted ereey OFC cov doftdw * er" 
wl Bounel eae Bae Stow saw these tonos te saorex 10 RumsItia edt Fast 
od? bax stont£iT to motewdteenod ent te 88 8 .daA mottaloty 
tant joutash Borie’ aae to netsutttencd of? oF tnemhnowA ue ase⸗ · uo⁊ 
Pwodd fu Raw woo edd aa Ieanvoo yd Betneneiges fon sav taghavteb 
feist orf Jed? Sas ,monser Fant tot suune ot Yat oF notvotdutrul 
petond LEt te nolvutivanes edz to Gf ,8 J to sottaloty ak bled am 
myst Seteereny “ay 96 Saite soanted suateetizes 9 Ang Amelie Fae 
reads ty SAMGOT,.VE PeOg 248 a9 coment tnen ve tine} Avett in PE 
| ꝛamaana ee eased. odanuane, 
— nets baa Serewonn yann0eeA 0! 9GAFS Ot SS 90°88 AF or onnatan 
_. St Das Setnerg sew dotty gotten s'iaabneteb exizts of motto 4 
a _. Storrs To thaw etc? sue beun mods Sapdactod shelaee sotton 
segtado aoto aerro ꝛat ↄge eLtew tad? lastever sat Daye at ad, nie 
_ OR Mektaaatnd ont, 281 i Lint aesa aauee weed evad of ·re edt 
 @ Aeal set ie tnahaetet Of aney acia at boliicov nsod evad at Fabs | 
igee Lindow .v sigood aI sesso tedte Baa 088 {fT αιια 
⸗egen xnasaato 4 era cu fare bled tiuog sidy ,Cof a4 AS 908 
TT en? to aetiaoltarev ad? ak atosiah of paltoetdo sacs ty os 
op pg BAe ot04 ageeteh dome nottan — 

— a — — un — edt fads Begtw af · J 

— fanbaeted: tae Ut ates teivetsuag tary suo son ⸗ Ph tar 2: * — 


etm 2enao talime has Vie .qgh ,f40 OBL ie — 
—E edi Yo syasmact od? ah anw oxed noltamotal ei? . “ae heiles, 


.qqh E27 tof goattay wv stgged mt dastottrue od “ox Brad ie i 
| et An nt ee ae 
* 008 qq LET dod (Beteardttds motateo) 
end MoqW deand sua rome Kt Trttatsly Ye oem Bvafog weAte oye TH 
wr 88 olde eviaooted — sev aolsaretnt eft.dads nolsqumes 
sig of YraRs920nmH ,oTOTeTeds 9h 4X .neao ott mandi 
Demattis od Iliw tnemybyt off ,etutog pose . old a 


| ‘i at j Reds oe CMADTRA een. ea" i one Y oi Pegsy 4 ys vaste os + te F 


RR ge RARER OORT # 


— aS 


wae 
















— 


we : 


41296 7 
EUGENIA CWYIKLINGKIf 








* couar, 





JUSTION WATCHRTT DEYIVERED THE OPINION OF THE COURT, 


907 1.A.550' 


In an action for pereonal injuries caused, as alleged, by 
defendant's negligence and upon trial by jury there was a verdict for 
plaintiff with damages asseesed at $750, on which the court overruling 
motions of defendant for a new trial entered judgment, and defendant 
appeals, ‘It te contended that the court erred in overruling a motion 
of defendant for a directed verdict at the close of all the evidenes; 
that the verdict is against the manifest weight ef the evidence, and 
that the motion of defendant for « new trial, or,in the alternative, 
for judgzeent notwi thetanding the verdict, should have been allowed, 

Plaintiff was injured Hovember 19, 1956, in a eolligion 
between two automobiles in Aossoe street near the intereection of that 
etreet with Pulaski read (aleo known ae Crawford avenue), in the City 
of Ohieago. Plaintiff, » married ledy, lived with her husband, who 
wag a painter, and their family at 3411 N, Harding avenue, leas than 
a block from the scene of the accident. Plaintiff end her husband 
had been chopping at the store of Sears, Roebuck @ Company located on 
Ivving Park boulevard and Milwaukee avenue, They started howe, he 
driving a 1956 Chevrolet automobile, Flaintiff eat in the front seat 
with her husband, Their little boy about two and one-half yeare of 
age wae in the back seat, 

Pulaski road haa street car tracks in it. On the day in 
question it was dry and in good oendition, It rune north and..seuth 
while Hoscoe street runs enact, intersecting and ending et Pulaski 
road, Plaintiff's husband testified ne was driving south on Pulaeki 


turned 
road and/east inte Hoseos street; that when he wae in about the 


- gudt We wOttooorsent ed2 000 Joorte scone! at setidometcn 














eT AUOO 7* 30 MOTEIG ANT CRAZY: rraudr au aorren ra 


‘Oda A 


yw? ‘Dene tie f Ty 20 © at Sanoexeq 16% seltes aa at. 
10% folbxey a sew oxedt yaut ye Lata? aoqu bas oonegligen e'taa 





| gutlvvaeve tues 60% dots so .080¢ oe Bennseen sogameb ABhw weanuata 





Rerotae Lela? won & x0? taabaered to anol: 
notion » yatlinueve at berte tues edt tadt beduotace af #1. —— 
seousbive oi [ie to esefe ed ta tolbusy betosuth — 10% gnab te 
bas ,songbive od? te gaglow footioam emf Yeatage a2 tolbaev od? tasé 

ovifenas? ia oot mito feist wen 6 16% tnahastod Yo motto edt stadt 

.dewolls need aved bivars ,YoLbuev add galbuatadtivgon taempbut, cot 
notetifoe o at 86s OI xedaevok Sowtat uae Thtasalt et 








qitO ad? al ,(omneva broteot> ea mvond opta) Bact titeatut Abin 4 
enw Snadeuc 19d Attu Bewll .qbaf Detvram w .Yiltatalt legaetdd Yo 
nad? avol ,euneva gatiuel .u L106 ta Lie? slot bas xevdlag & Baw 
Snadnuii tse bao YAttatet® ,dnehtoos edf Yo eaeoe eff wort Aoold a 
fe bevacol ymaquod # dowel ,ormoli to oxose ed? ta gatqqode mood bait 


—— BG 4 * 


ens mer betiage J ·vansva onan 2 has busvoluod sea 
tape sroxt ole as 328 miao toal· 





porto ome: — 

fb ab edd 20. ‘obkemhs Winn — leche 

Muse tia Asaom enwi FI. — 
aus aun Yo guths das yattonetedat a ↄnabn Foorte oor⸗on atte 





“faeated no devon ‘gukvtih elu ox NélViresi’ hamudiat 6¥¥ 
ote Suede at dew od ao · tari iseents ———— otal 


66 





— 





~Be 
midéle of the street he for the firet time observed automobller eoming 
weet in Soseoe street and saw one coming toward him, He saye the 
front end of his automobile was straight vith the east curb line of 
Pulaski read; that he wae fecing east and defendant's autesebile was 
about 20 feet exet of hia coming weet. He blew the horn. Fiaintirf 
said to hin, “Look cut. Those fellows are not leoking where they are 
going.* Mr, Owiklineski saya he then made a desd ater with hie car 
faeing @ little southeast and the south end wae then sbout 3 or 4 feet 
east of the east curb of Pulaski road, “rr. Cwiklineki blew his horn 
again, and the other auto struck him, He saya the frent bumper 

struck Glose to the fender of the car, lifted up the running board, 
suaghed the left fender and pushed the automobile in which plaintirr 
wae riding about one or one-half of a foot. ie wife, he says, 
bounced against him, then etruek the right hend side of the car, Mr. 
Cwlklinski told her to get out and helped her to do so. He says there 
were two Boys in the car that hit thee, These boys had a radic and he 
heard it going full blast, He called the police etation and the police 
came and took the boys to the station. They were near their home, 
where plaintiff went, “he was at the time in the eighth month of 
pregnancy, 

Pulaski read is about 40 feet wide, Plaintiff's husband says 
he drove into the intersection at a speed of about 3 miles ser hour. 
Cars were parked on Pulaski road,to some extent obecuring vision, 
Rosece etreet is about 20 or 25 feet wide, There wae an apartment 
budiding on the northeast corner of the intersection, Mr. Gwikilineki 
#aid to defendant, “why den't you look where you are going?" to which 
defendant replied, “Who could expeet anybody coming from thie way.” 
Plaintiff's husband says there wae traffic going north in Pulseki at 
the intersection, Plaintiff testified in detail, corroborating fer 


the moet part the testimony of her huaband ae to the way the eollivion 
oocurred, | 


ae 

aaimeo aelidenot un heovsando omid tealt edt got ed foorte oxtt te efbita 
on? ayse oH satel Deewe? gatwoo om wae Daa tomita woowbt af thew 

te ont! dwe teas ad? iw teptarts caw 6Lidomotud ald 20, Bae snort 
Saw aiidemetue e'inabaste) bus tase gales? oaw ef tome ihaot thaalyt 
Wtitatalt ,nses aff weld oh .@hew’ yataoo wid to feed toot as tuoda 
ota Yad? stedy gatinol tec ove svollet esodf .tyo dood’ utd or bias 
‘qao old dd te qote Deeb # obam mond od ayee BdenltidtwO ch * .antog 
geek 8:40'8 Feta Welle tinw Bae idtivek” Ua” Ban Feats Wirth a pibeet 
‘iol 818 Weld Ident itv?) ae .ha0e DtWatut to wie tens oct to" tans 
eect tort ost ween eM mae tone otek eéiite bat aaa” \aPapa 
= \btsdd yatiqurs oat qn DOTTET .xad ord Yo totnoy 
‘Qtltnlale Mokdy wt elitometus edt Bedewy bos tobwet shel acs betaee 
eGae Ga jetiw nie Foon 4 26 40mH-end 40 eke 

Se! eR OME Ne Abie Read tages batt dounts sedd yatd Santéga’ Boontied 
 xodld ‘ayes OR 68 eh of aed Boqtbd baa gud tog’ ed abl aro⸗ tinh cay) 
— Bed Older @ Bail Sod cont? lwead ghd sad aeo od AE BLOd Oud otéy 
eotlog sdf She abttate estios off bettnc OY Webtd Ltwt Gahoy 22 breed 
| aod Thead teen eite ead? © mobemtd’ ene oe eyed Bie toed” bik” oka 
——— at omet ott? fa wow od? " pthiw Meatata samt 

gite. “an 2, FiLgaekels —E— 
—* zaads ua at reentataed tu feet 06 — asian anal oan 
ined eq Sefle 8 tuode to beoge # 8 néttosoawtnt alt ofl evetd ef 
“jnototy gutwondo teats saoe of baot tiedtut ao Bétthy" otbw atid 
Shoatraqs te wav ved?  ,sbiw test @ to Of viede aE Footts eondan 
bse ttted oO netvoonetad aaa te camied “Seaeiread adit no yatbthod 
- doddw OF “runtog exe toy suodw Moot voy teas de® jenabieten OF Bla’ 
yew att mort getmos yooryas toogxe bivoo’éai*” dotiqes tnabaeted 
| $e idanfe€ af dewes gates SfPiate eaw erddt aya Bnddedd’W rteentart 
get aatyeredovtod (Etdten af baltites? Mitarart ——— 














meee we Rwy Bay 2 SORA: OLA 
i “motes ttoo ods" ad ‘ed 7 ‘as — to ot yo gion *0 x: ae 
in o Lot Ce af Def tivee? sosdaad a'Y —— soe 


ben 
se foete wt oe aot Weete tule Qteenty eoeeed ete l game eee 


Qefendant, twenty-three yeare of age, saya he wae driving 
a 1938 Plymouth four-door sedan, twe monthe old; that he teok His car 
out of gear and left 1% in neutrel becsuse care were parked on 
Pulaski read and that when he cot there he applied the brakes slowly. 
He had been looking te the left to ses if there was any moving traffic 
because he was going to turn north inte Pulaski read, in the meantine 
there was a crash. lie says he was moving about a half wile an hour, 
Three or four care head gone through so he slowed down fearing he 
could not go through because it wae a buey corner, Oefendant says 
that after plaintiff got out of the car ahe walked up to them and 
gaid,* You young brate should not be driving a car.* fe told her he 
was not a young brat, He asked plaintiff if the little boy war in- 
jured, fe says there wat a radio in the car; thet it wae Saturday and 
a great ball game was on, Leon Kyskowski wae in the car with him, 
Befendant etays when about 12 feet from the curb line of Pulaski road 
he glanced to the right and then immediately to the left, 

befendant’s cempanien, who was with his in the car, did not 
testify, and no reason is given for the failure to produces him, De- 
fendant produced three other witnesses, *alter Kulka, Smil Tangen 
and Carl Yeldbauer. wWaldbauer said he was driving north on Pulaeki 
road; that plaintiff's ear coming from the north cut in ahead ef hia 
in the intersection and made a left hand turn when the witness was 
about 50 feet from the interseotion, The witness stopped and got out. 
The automobile that made the turn, he eaid, was not going “very fast," 
Kulka, « decorator and painter, testified that he was walking south 
in Pulaski read on the east side of the street north of the inter- 
section. When he was on the north eide of Hoscoe, he saw defendant's 
Gar going weet on Rosese etreet. He then saw the car in whieh plain- 
tiff was riding make a left turn; then he heard the two fenders smash 
"and that was a11,% This witness said defendant's ear had stepped 
and thet the other car struck defendant's car after 1t wae stopped, 
Tangen, an employee of the Surface lines, says he wae just leaving a 


-t- 

grivicd saw of avaa ,9Rs To giMey OoTds-"saews ,Foabsoted .. 

uae ald doo? ai fad? idle adtmem ows ,gabes roeh-ty9ek ATmoeyli BSOL » 
Aas besaag ors etap eauaoed Leiguen m2 oi JI0L baw taeg. to, tuo 

| ‘Aieele seiead edt Soliqgge oi cued? tog ec nedw ted? bas beow chapdus 
| olttex? gaives yas saw wree? V2 one of St0L est et watdoot aead. Sad. olf 
omisnses add al deer ideatus efet doros sie of gntoy sav ed auuas 
wor ae often tind @ guods gatvem nsw od ayes. ol timate a saw onpdd? 

| ay Mh Batae? ewok Bevete 9a on Aauontle onog das axap qwex ao seat 
axas Seedbeste come yaud saw PL samsoed aguosds oy son bives 
bap meds of qo doviaw ede tae off te. sue soy 226Rtale weet. Samy 

wel nett Sot eh *,n00 6 gatviuh ed fom Sivode etad gavey wok *.biaa 
| Bt wow Kod aMtNEL odd ML Ttatalg Sesne oH .faret gowoy.s tom, say 
) bas \auvte® saw ot fast zxas od? at ofdas & paw sod? ayn of. .hexy, 
«eit di be uae ase Ai saw IMewoueyk seed .89 eam smag Led taeng » 
(Roe LAeaLel Ye omtl Pump on mon? Fook SL. suede aadw apse, Pnabaored 
 PtoL ead of _letaiboumt gad? bas telytx od? OF Dooney. ad 

ton Dtb 489 eds af wit Adtw ame edu ,otmaquon e'FambMOTO „an-— 
0G .aitd oowborg of euulie? off tot, sevdy at soesen om. bas ,¥tttued 
aogaet Limd ,sdiud wes ies ,eeesentty xodao cords Seoubeug, taahaa? 
idselwi ae dion geivink sew od bise vesedhlaW touedbinw. tne? baw 
Bis, 20 hands a2 t49 dov0M od? moe? gninee cep aM teatalg tact pao 
sau Raentiw ond nedw nav? onad Ttel & obese haa wotsooetstat ade gt 
tne ton hos beqqote saeatin oct. -Moltonatesat edt soTr toet 08 suede 
".20a% YuOv" Butea fom sav diam od ud exlt sham. tad? eLtdomor ue, ont 
| ddues Qattiaw saw od fede Seltivecd ,wetnteq daa retazooed a eX lus 
ee ee ‘Seoute aad Yo obs dame add ae deer daaatun at 
| BttmebaeIeh wes ed ,oopae! to ebto dixon, st mo.cew ed. modi ⸗oꝛ ooꝛ 
| wntslg dotdw at x00 sag wae aed? oi ,feo7ts segned a0 teev gatog sae 
Ao aun axehoe? owe oct breed ad nod? zauat Shel ⸗ ↄuas pathic say Vat 
begqets bad sae e'saabnoted dian eeond tw net ) tie * “Pita? 
sboquota ase 32 — —* —R&& — “as 5s neste — ⸗aus bas 

2 anivest taut saw od aye —R —E— to —E na «a * 














~4< 

eandy store on the northesst corner of the intersection end that he 
waited at the east curb line of Pulaski read and on the north erces 
walk of Soseee street, He alse saye defendant's ear stopped before the 
eellision cecurred, 

Plaintiff was riding in the ear driven by her hueband, Che 
waa not in control of it, and 1t 16 not contended that the evidence 
tends te show she was in any way guilty of contributory negligence. The 
complaint charges general negligence of defendant, and in particular 
that he failed to apply the brakes, failed to keep a lookeut for other 
care lawfully using the etreete and failed to give any warning by 
blowing a horn or otherwise. There was a motion for a directed verdict 
at the close of all the evidence, and defendant argues quite at Length 
thet it wae error to refuse it. Ho evidence was offered by plaintiff 
4n rebuttal and defendant saye thet hie defense having bean established 
by uncontradicted evidence, the inetruetion should have been given, 
Yefendant cites oases such ae Fuller v, DeYaul University, 295 i111. 
App, 261; Simens v. Dole Valve Go., 288 111. App. 288, and other cares 
holding that vhere an affirmative Gefense is established by uncon- 
tradicted evidence, an instruction requested by defendant in ite favor 
shoulda be given. The rule invoked is not applicable te this record, 
There woe evidence tending to suppert the allegations of the complaint, 
and defendant admite that this was sufficient to make out a primes 
facie case, Gther evidence was given by witnesses for defendant, which 
ae a matter of fact, contradicted defendant's teetimony. 

In welghing ail the evidence, plaintiff was entitled to heave 
the benefit of all the evidence tended to prove and te have all just 
inferences which could be drawn frem 1t regarded as true. if the jury 
eould, without acting unreasonably in view of the law, find the issues 
of fact in her faver, then she was entitled to have her cause sub- 
mitted to the jury. Thie 1s the rule leid Gown by the Supreme court 
v. Gook, 222 T11, 206, to whieh this 





ue pe 


whe 

od tact has noltoonregal odt te dewres Saaeds<ek ond no exote yhase 

: ‘ oi fences, Bee 2 

aae% SPuee edt no fee Seo tsealet te entl dxwo taae ott ts bes haw 
edd etoted Beqgets aso e'¥andestsh vysn cata off seonte ‘sooner to ‘tee 





has gon geal 


ede Drad aust tot yd aevtxb aso on? of galbia sew Wihtatart © 
 gonaiitve ed? tid? betastuweo fon nt #1 twa tt % Loktaeo al Fou Baw 
er vsonagiigan yrotedintnos to yfhng yew ya at esw ede weds of abnot 
| an fuoltis. at Sna ,dnabrete® to sonealioon Laren3 — tela 
| xarite ret twesoot « goon of befist .eodew dt “ela ot peta 
| w yatnue yin erty of Bolte? San stooute ody gataw y 8 —R 
— E Detesith 2 v6 aotver a saw ovadt ealwredto “a0 med 5 yabwold 
doanel ta etlup senyia #aadaetes Baa oanebive od Its te esoto sat da 
| “VatdaLaty W Sows saw onnabive ot .3E eailten of rote lw 92 dant 
Dedatidates need gatvad exnetob etd sade eyse dnabnoted baa “tatdudew nt 
-—— ynevitg mead ovad Afveds neltowtent att ,sonebive betotharthooaw yt 
AEE OOS <tatnnertn uated 7 pL 00 owe Hotes ‘softs snahaeted 
| assao ‘esto bas 68 cqqA .ttT RoR , ed ‘sie “Ww pombe {£88 .qqd 
Ud beteticates #s seuateb —— an erode Sout’ gntbion 
— eff at tusbeeted vd bednenset aettewstent an a web ve bed otheart 
bu0ne% ahdt of efdesifaqgs vou at bedeval olirs oct wavvts of Divot 
| —— ned acts to nnoltagelts acit mea cv⸗ “ot gutbnot ¢ oaebiv oe 
aaa 2 tuo odam of seotot¥ine enw afds gad? ez tmba pera bas 
Moti <tnabaeteh “0% “paspent tw ew newly aaw “goneb ive sotto * 24 — 
| oasaeo on 0 'dnabastod befotbartnes test to tedden a we 
\ evad of hefettue Baw Titatase, oonebive dtd ‘fhe — — vas 
J sent, fis evad of baa evow 0? bobnet eonebive eit its to ¢ened “its 
Te odd I -owst aa bobtayen 31 mont mand of hives dobdw aseaerwtnt 
| 






















| woumet odd bat? wel sit ro welv mi tidenosaetau "patton toss Sag 

a oa uat “ved oved ot ‘betstene aoe —2 —— eae ata | 
otig Ot 

sruoe omorcue ad? ys mvod Stal olin edt ak abet —— 


4 ip — ‘SG — ita —* 24 
| ates donate or 08 et ‘388 @ dee? .¥ y no 












Se ott 


= fae 

court and the “upreme court have constantly adhered in e long line of 
eases of which plaintiff cites Molloy v. Chicago Nepid Transit Go., 
355 Tll. 164; People v. Eanisch, S61 [11. 465; white v. City of 


Belleville, 364 Ill. 677, and defendant cites Kelly v. Chicage City 
Beilway Co., 283 111, 640, %¢ hold the court did net err in denying 


the motion to instruct the jury in faver of defendant or in refusing 
to enter a judgement for defendant notwithstanding the verdict. Wer 
ean we say,after giving attention te the evidence, that the verdict ia 
#9 manifestly againet the weight of the evidence as to require a re~ 
versal, 

We ave of the opinion that it was a question for the jury 
to determine whether, ae a matter of fact, defendant wae guilty of 
negligence at the time and place in queetion, in hie failure to ob- 
serve end warn or failure to etep hie car in time to have prevented 
the aecident. Defendant knew the intersection under all the cir- 
cumstances was dangerout,as the evidence shows without contradiction, 
The jury had a right to believe that if he had been giving the at- 
tention to the road which the situation demanded the collision would 
net have occurred, oth parties were fortunate in that the injuries 
were not more severe, The law applicable te thie case is perfectly 
clear. The material facts are not so clear but are of a kind and 
nature which under all the clreumstances created issues properly sub- 
mitted to the Jury. ve are not able to say that the jury acted un- 
reagonably, It is not sontended that the damages are exsestive, 

The judgment will be affirmed, 

SVCGHENT aAPPIAWED, 
O'Connor, P.J., and MeSurely, J., coneur. 








i 

to anif gnot o at bovedha yitustanon avad Saye emetqu® od? Sag twee 
— tégeeys Rhaa! onsets? .¥ Joklan aetio Whitalalg delde to aeege 
2e xZL2 .* stsde 1000 £11 88 fondue .v gfaget yeOL .Lit Ae 

Nii eassge *¥ Xifed eetio teahanted bas .9VE .1fl 206 ,otihvelted 
gatwoed at wee fom Sih f1woe oft Blond of O88 .JEI SBS 99 yawktal 
galevtes ai xo ¢sebmeted le sevet AL Yost erie Somtsenl of aoltom edt 
20% ,deLaney edd golinatedtivéea taabreted se? teougbul « tetne of 


a2 totiaey odt tadt sonehive edt of aodtaetta gaivis 108te,vee ow mae 


“#% & witupor of 84 eonoblve ect? to sdgiew odt tentage ylteetines oe 
xaut eat sot mosqeoup s ney t2 Pact polntge ed? Te.ere BO jy 
To Wiiug paw Cnadeeieh sont to retsam a 89 gtedoedy ectoneteh of 

do of oxuitet ate a2 .woltesnp a cog Sue oatt adt te eomegtigen 

“Detmaverg eyed of gmat mk ase ete gate of etmdted 10 mew Sue avt0a 

“140 sc? Lig vobmy sottoreregat add wank taaduetes tashtons, sds 
aoktothantaea tuodtiu swede soaebive ode 28 BUOTegRAh Fan BOOmes AMES 

_ Pe ad? geivig aeod Bost ad tt sada ev ptted 08 (tdght a bad wast off 

Diuoy notation ed dokasneh aota aus ia ad dotdy Sex exit ot aostav⸗ 

celwuias oc? Fad? al otenwtyot exew aetitag Atok .beriuen evad toa 
‘Utoutteg af ease alti of sidnetiqga wal eft su8ve een toa erow 

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~~ ‘Vreqoig esueat Retaer® aeanetamwerte edt Le rebar sotdy suntan 


|... she Hoten yous) elt gadt yes of olde tom ona, 98. City odd et botthen 





.ovineooxe eta aegamad edt tad? behaetace ton at sl .yldenoesen 





RHAL IA TUSROAIL ef Satya? 4 PLE y eye? Ai de 5941 aoe Pi 


_ SHINTO 44 8 stra ah Aroaaodq 


Hg 


etonownes yalton ties atte "lito 
is btw aie e8F % owe em Bs goat * 
eat af eka? veut ene oF — pesthe 


i. | oh 4 
— 


J + r R a 
" . , ad 4 al cea ones —— ° v Mass Os 3, 1 F elie 
c —4 iM * 





41 


METROPOLITAN LIVE INSPAANCE — 
a Gorporation, § 


* 








Appel. JOC acs 
eVA JORTEL, a2 

App@llant, , » 
and f 3 NG 
LEOHAND JOKIPL, et a2., 





7 eae Ge 
WR, JUSTICE MATCHETT DELIVERED THE UPINIOR OF THE COUAT. 

Eganuel Jokiel died ovember 12, 1938, le held a life 
insurance poliey in the plaintiff insurance company for 21,000, Lesued 
May 1, 1930, This insurance policy when iseued named {va Jokiel, | 
wife of Smanuel, ac beneficiary, It also gave to the insured the 
right to change the beneficiary, May 6, 1936, Emanuel Joklel made a 
written request for change of the beneficiary asking that hie son, 
Leonard Jokiel, a minor, be subetituted, About April 11, 1938, the 
insurance company had received # request for a duplicate policy in 
the form of an affidavit which purported to have been executed by 
Rmanuel Jokiel and defendant, Sve Jokiel. The affidavit stated that 
the original policy was lest and could not be found, A duplicate 
poliey wae Llesued and the insurance company indergced upon it the name 
of Leonard dokiel as beneficiary, The insured died, ae above stated, 
leaving no estate whatsoever, 

iva Jokiel, who had possession of the original policy, made 
arrangements for a funeral for the deceased to eoet $600, exeeuted her 
note to the undertaker, Mr. Winlareki, for that amount, assigning the 
original polley ae security, Mr. Wintarski discounted the note with 
the Memorial Service, Inc. hen the Nemorial Service, Ine, undertook 
proof of its cluim with the Insurance company, it was informed that 
proof had already been made by the new beneficiary, Leonard Jokiel, 
and also was informed of the leeuance of the duplicate policy. 

Plaintiff on June 7, 1039, filed ite bill of complaint 








«Paty aT qo acruras * Gaara ranpran TT8yh AM 
etil » bies of .BHGI SI sedmevol ete folvot Law par 


beweal 980, £6 97% Vsauuoo sonorgeat niaatalq out ad t yotlog eone went 


-, Aodtel o7i Maman Sound mode yok leg qupexyens, ut J toe 

_ odd Donen eat of oveg gale 31 ,Wuatotioned O° sheet ht 

& ahem ieike) iomnami ,0Gf ,@ yall _pWeatoltened at — 08 adgts 
nou od Pads gatane ye tostqaed wt Ye eased? se? saoupey nese tny 
odd ,O881 ff Lings smote bopudttedue od .tonte » .Lfettob Brances 
at yotlog stactiquh « 1? seeupet · Dev iees bad ern est 
Wd hotvoexe aod svad et betsoquug doldw givabsiia aa Yo wx9t ost 
fads dotats tivabivis ad? Aceꝛaot. svi ,taabaered dae Leixel Leungait 
__ staokiqui A shawe?o¢ tog Sines Ana-Saes eau Wetton sentobue oat 
oman edo IL moqs beatehal yaaquoe eenaruaat ost © $96 forests oer weties 
bodaie ovods as ybotd Seruyad aalT ,yuakortomed aa cotaoi byanged. to 
a 09 ona Sal RC: 0g, PETE 

ofiage — i aan * —— aetsnynsoy dad sw af stale ave —— 


AFR 


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| and gatnglera staupar tadt ro? — E—— ow tedastohas edt of eton 
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dads Howretal saw #2 ,Ynaqmoe eonatwanl edd dtlw minto ett to Yoong 
cistio’ busnoet ,yrateltened wen od? yd sbam need yhseule bad Yoorg 
Yoiloq staaliquh est Ye oomavued ody Yo Semmotat aan one baa 
takatqno Y6 iftd ett BeLet see J — fo rusauati or ae 











2+ 

against va Jekiel, Leonard Jokiel ané “emorial Services, Ine., setting 
up these facte; also, that a lean had been made upon the policy in hie 
lifetime by “menuel Jokiel; sdmitting a lisbility of 780,27 Leese cost 
of suit; praying that the claimants wight be required to interplead 
among theaselves, and that further suits should be enjoined, 

The evidence was heard in open court and a deeree was 
entered February 26, 1946, finding the asount due, lese costs, to be 
3767.67, which plaintiff wae ordered to pay forthwith to the clerk of 
the court, which the clerk was directed to pay to Leonard Jokiel upon 
his attaining his sajority on June 1, 1240, or sooner to his legal 
guardian, and that further suits by the parties should be enjoined. 
From this deeree Uva Jokiel and the Memorial Services, Inc, gave notice 
of separate appeals, 

It ie contended in the first place that “va Jokiel is en- 
titled to the proceeds upon the theory thet one whe acquires a bene- 
ficial interest in an insurence policy by the payment of premiume 
thereon under an agreement that she shall be the beneficiary cannot in 
equity be defeated by the substitution of ao new beneficiary without 


her knowledge or acquiescence. The proposition is good law az held in 


eases cited, Supreme Council, 8, A. v. Meknight, 236 111, 549; 
Columbian Cirele v. Mudra, 208 T1l. S80; Urder of Coluabian Knights v, 


Katsel, 164 111, App. 15; Women's Catholic Crder of Foresters v. Bill, 
191 Tll. App, $29, and Leaf v. Leaf, 92 Ky. 166, ‘The proposition, 
however, is not applicable to the facts of this case fer the reason 
that the evidence fails to show that “wa Jokiel had such an agreement 
with Emanuel Jokiel or that she made such payment of the preaiuwe, 
Indeed, in her anawer Eva Jokiel Gees not claim the proeseds of the 
property upon that theory but on the contrary that there was no 
effective substitution of Leonard Jokiel se named veneficiary. 

Her testimony is to the effect thet she was married to 
fmanuel Jokiel, August 27, 1929, “Zach ef them had sontracted a former 
marriage by which they haa children, lmanuel and Eva lived together 


— 


iar 

galttes ,.o0f ,catvue? fatcome” baa Ietdct inane Ri whe avi tandays 
eid al yolise ad? soqu eben nesd bad awol a tact ,osfa tatoo? woes qh 
taoo avol TS.08T9 te weethetl a yates bmbe ¢iasaot Leunan ww ealtetit 

| Raolqrotal of berlwpes ad Paigim stnamialo ed? tad? — jttun 39 
-bentetae ef hivode ative vedidawt tad? Soa novionmedtt rons 

tev @ec00 2 baa Pewoo aeoaqe ai Buses saw * oe ' 

ed of ,a8e0n ase .9uh tewoas oft gelbat? Ones 68 oe rst — 

Yo drole odd OF dy twsitew? yaq Of Setebae haw Tritatele dotdy \VO .TOve 
segue SoLsel Disses! of Yaa of betoowts caw Miele ods deltdw ,tawoo en? 
fagel ald of cenece so ,O80L (J enut ao ysteotem eld gnintaten etd 
-bealelas ed Alwods selftasq est yo ative aadeant tad? ham \nathiuasy 
eelson veg .dal ,eotwre® Igitome” of? .Saa Leldot ave eeneeb Olde wott 
ae ef Isidol avA taco omalq gext? of) at hobaosnes atest e. 6/6 hoy 
~aned 6 serlupos Gd¥ 
suuiserg 26 taewgeq ode yd Yotfoq eonatwent na nt seenormk Later? 

| ak fontas Ysaieltered wft ed ifada tie tadd tnemserga nn tebay nooreds 
tucdtiw Yastottened ved o oO AOLIusttadua edt Yd Betaotehad estas 

| al bled 98 wal beoy at aeltieegerg ed?  .senecantupea do. oghelwont aot 
| 1@0S ff] 888 \Sigkadot wv Age, Lteaped omeygue bette “essen 
| — — LIT .v gleato matdeu sod 
.Y Sxptaexo! 20 3ebx0 offedtad a!agmex {Ol sqqh GeILeer Jerse 
———— oat 08S .42 2@ feed .v Qegd bas — orga LIT —* 
nosaen sd? Fo asa efd? to efoat oft of eldsotiqqe #on af ytevewed 
 Famagetge ne Aone bus fel¥ob avi tady wode of afta? semedive eas saat 
‘auteorg 64% to tnomyad Move shaw ode aden: feLdob Lounam’ dttw 

ecg fo shessowg af stato tom 3003 Loltol avi seven aed at” \Doobat 

of saw ected? vad? ‘yrewtneo ot we fod Yuoed? sadd mogn Yerscora 
-Wisleltencd Seasa ae Leftot hianoed te noktusteadue ov at oorue 

of balinen ume ede 3 acd —B——— — * 





ie 
hae eS ne 


whe 
for eight years, but in January, 1958, he went te live with his 
éGaughter for financial reasons, ‘he eayse she aot the insurance policy 
six monthe after their marriage and haé it all the tise afterward, ‘he 
gaya, "I save the money that I pay for thie pelicy while I had it in 
my possession, I pay every month,” Again she says, "i save money, 
& loan wae made on the scolicy beeause I needed money beceute he was 
sick, I paid on the policy $5.00 every month for eight yeare. I got 
the 65.00 monthiy from saving 1t. I got money from my son and from 
ier, Joklel's gon, I pay, I save. i got money from a daughter, she is 
good, If seve my money, they work, ay husband work, my two sone werk, 
I eave. William gave me money and my tyo sone and I pay policy. * 

Williaw Jokiel, the son of Emanuel Jokiel by his fermer 
marriage, wae called ae a witness by Eva, He testified thet he lived 
with his father and “re, Eva Jokiel for eight yeare after they were 
married, and he lived with “va Jokiel wp to the time he was merried ta 
her niece, He saya, “I wae paying the premium from time to time ag 
were the other boye. I did not have any convereation with Hattie Meft 
[Geughter of Emanuel] wherein she specifically asked me to pay the 
eurrent premium, *** The children started paying the premiums on the 
policy in 1934 after cad was taken to the hospital and after he 
aeparated from Eva Jokiel, Before January, 1936, “va Jokiel paid the 
premiums. Ove Jokiel made paynente for elght years." 

The re-cross examination of “illiam Jokiel wae as follows! 
"4. Ghe (Eva Jokiel) made payments during all the eight years? A, 
tes. % De you know where she got the money? “r. fubenstein: That is 
ebjeeted to, if the court please, ‘the Witness: A, My dad (deceneed) 
was working, Ar. liofeld: % And he gave her the money out of his own 
poeket? The Witness: He was working. &, And she physically peid the 
premium? A, No, &, The money that Uva paid the--~ A, He wae her 
husband, the wae entitled to it, 4. Bid you ces him give her the 
money? A, The oheck, all that he wae earning, every week, he was 


| oye, Ohh tty owas of taey a aBSGL .Veaunsh af Tad .eracy sigte wot 
| yetteq conpzwant ed? tog ota ayes od? ,unoaget Infomant? 102 aegdgmad 
‘od®__ ,buawretta owt? ad? Lie 92 bad dag egeltiss ried? iefta edinop zte 
mt tf Dad 1 oftaty Vetfog sgt uot yaq I sadd Yomom, on? oven I! aves 

“Tones oven I! .8hes, oe eles "Menem. treve ves t. . ,eosaaepned ve 

saw of Onwaped Yonoe Dodson I sausoed votlog oat as pba naw mack A 
tog t .paaey #egte 40? Atqom yaeve 00,8) yoLtog adt mo Dteg T  .xote 
| ROT fag 99% Ym Gout wom tog I tt aatvan wort yisitaom 00.8% ed2 
af ede ,19¢dgeah 9 soxt Yonom soy I oven 1 ,yeq I oper e'fetsol .xM 
| trou 9R08 OW WR .ttOW ——— ARov Leds x⸗aes ee erent. AOD 

"Moedeq vou I Bae sage ond ym Daa Xenon am oyay matttti  .ovae x 
ecnoa au td Lottol Loupem to son ott ,fotsob matiity 
Hevil et tad? Bbeltizess of .avi yw esentiw « ase elise pay, .ppatazan 
yr Ned? ao aa miawy Migts x92 Letdol avi. wa Bas tedtat old Atty 
botrion ony. od out? an? of, gu SpRHeY. ay. det. Dore. od bee, sbetaaas 
A ome oF ont? gout autwors 962, pntyeg. saw J". satan, al. goede, ned 
| FTOH etrtak Mt sottagqzevags yee eyed fom. StP 1 eyed tedeo edt. ongy 
Re ont 1aq OF om Desne yllanlttonge ony stesedy [founon?. 39 setdpmep) 
(edt 90 subiwong on? Batted Setyate aoub dage edt °°? .autmeng taeuye 

pf tere daa las ta oa edt ef mada? sey bad a erye nino 




















acter 


989, xr⸗raoi Pret, —— — 

| cong” BPRS — 2 792 ↄrgorgeg shag Ietsob ord, . ot 

ix ‘TevoLSor. an aay. Aprtoy, wat tu⸗ 20,  sestantnaxs | —E —— Ait Ox 

A Terasy tate ett. Lie, gasaue stngayer obaa (Lettel avi) ofS. 0" 

of tadt intedanedul xt  tyetom og? fog ade exody wort vor oF. of mex 
(bepaepen) Sah, Ui, <b, ent ey — 

nwo sid Yo, 140 yonom of? Fe, OTR OE DO IDET, 1. ca 

ond Stag yitapteyda ede SoA of. “BELATOW. aow oH zoaeggac get teaooa 
“od Nay. 98 oh. cored Dagar 2a xoeea 9B. OH ah Fuastmnns 

ee ar ee | Potties. nee feet 

joe Mt MG aA TURD RAtNIR REE kOe dy ettate, Stet 














~ 
turning in. %. How mach frem tine to time 4id he give her from his 


own money to pay these premiums? Hr, Subenetein: If he knows. The 


Witness: A, ie wae giving in the whele cheek. Mr. Hofeld: &, E 





e premiuge? A, He ¥as 
@, Amd whet she had left ever was 





here? A, Yes, * 


Thieg evidence from a witness friendly to iva Jokiel and 
onlled by her shows she @id not make payment of premiums out of her 
own funds but only out of the earninge of her husband, the insured, 

Harriet Neft, daughter of manuel, testified that {manuel 
Jokiel lived at her brother's house a few days prior to Yew Year's Ewe 
ef 1958; that he lived at her home from the latter part of January, 
1938, until the latter part ef April, 1928, continuously; that he 
then went to the home of William Kubistal, a son-in-law, with whom he 
atayed for about two or three weeks; that he went to the hospital in 
the middie part of May and stayed there until June, 1938, and came 
back to her home about the 20th of June. He wae in the hospital e« 
month before his death, ‘he testified that she had no interest in 
this policy other than “we paid the premium, The first presium was 
paid either in December of 1957, or January, 1933, by my father. ‘The 
children all contributed to the payment of the premiun.” 

The theory of Mre, Jokiel's anewer war thet there was no 
valid change of the beneficiary. She denied Emanuel requested the 
company to change the beneficiary and denied she haé signed aa 
affidevit and releare with manuel stating thet the original peliey 
had been lost or destroyed, the avers that the duplicate policy was 
obtained by fraud and mierepresentation; thet the original policy 
was at all times in her possession and was at no time lost or 
destroyed, 


| 


ss ahst now? aed ovky oc 2b mde of ent? mort dom wot.) lat gakouud 
aa? Jawomd on 12 teketeaedut xt téawlnerq —* hs af ————— 
— ge i Bteteli doen toa· ast at — saw aul * reer 


B¥AG 












| asw ‘seve Stel had ote fadw bad 
bna feltet avz od utinolat seenttw a mort edneneve aear 
“had to tuo eevinere te taomyaq oie fon BED die awore aed ye baltae 
Lbetuanl a? ,Snadesd ad Yo agaterae enlf Yo a0 Uine dud ebddt hwo 
Tounam’. tad? Boltivee? \Levaan® to —X — —E 
ova @uasY woh of aolza ceed wet o envod a andsond qed de havil fetsot 
walt 26 "Fung certal odd sont onod ved od Bovkl of Yade [Aer to 
0° SY yhab igtaudembedos (hott {EGA 46 eteg’abedal ods Lieaw’ 680 
ad mone Avi \wat-mtenon & ,futakduit meliti® to edod add of dabw wedi 
“gt Ind tqaod ode et dmaw ad cald talleew soul? te dud tuods sot boyade 
onao bis 80 nut Liaw ovedd Boyeds ‘ona wail to dang otbbid eas 
"a Tatiqued ont nt aau aft ona Ye ‘dd08 eat “tuods smed ted of toad 
ai Suenetal on dart ots tadt perrizand ede “taeda ard oxcied Atnow 
anw aultmerq dealt dt — ‘eat ‘blag oe" nad? wadte 9 yotlog atdt 
ont sont at xe wd ,Oner ravast ao eer to" Sedaesed Ab ‘net 10 biG 
© auton ot Yo ‘tnowqeq edt of SoduddRoo Els noxhLtde 
— nsw orad? Fads naw aewene al reldel weal Ye qroeds eat 
"ne Beale bad eds belned bas —R * — elias "ints 
‘wotteg Lantgiae ect todd gaitete Seuns 
sew Yotfes odnok Laud ‘ont ‘todd atova edt "4 
““yolleg fadtgtso edt tadd” inoteadn rete 


18 feat —* es ‘a aw ban nélussenog tad — ee 


a \ Hates awe tame Lin toons oF 



























*62 

The evidenee shows that May 6, 1958, the insured presented 
to the ineurence company a written request that hie gon, Leonard 
Jekiel, should be named ae beneficiary to receive the proceeds of the 
policy in the event of his death, The deousent ia signed by Emanuel 
Jokiel by hie mark and ia witnessed by Yalter Heft. 4 paper earrying 
the legend “to be executed by the ineured and the beneficlary* and 
deseribed ae “Affidavit with Release and Agreenent,* had been filed 
with the insurance oompany about April 11. It purperts to be ex- 
ecuted by “manuel Jokiel and tve Jekeil, ie signed by Smanuel Jokiel 
by hie mark, and purports to be signed by “va Jokiel by her sark, and 
subseoribed and sworn to before William fubietal, a notary public. The 
inetrument is under seal, 

Williem Kubletal testified he saw this inetrugent, which 
appeare in evidence as Leonard Jokiel's exhibit 1, at hie office on 
April 11, 1938; that fmanuel Jokiel and Yalter Heft were alee prerent; 
thet he saw Emanuel sign it and knew the signature to be genuine and 
correct; that at that time it purperted to bear the mark of Eva 
Jeokiel, Walter Heft brought {manuel Jokiel te his office, ang Smanuel 
asked him te acknowledge his signature, ie put on the acknowledgment 
and alec acknowledged the signature of “va Jokiel by sark, and gave 
the instrument back to Emanuel Jokiel. He had been a notary public 
for fifteen years and admitted he 41d not see Eva Jokiel for two and 
one-half yeare prior to April 11, He saw her twice after that time 
when che visited imanuel at hie home. He 414 not know whe put in the 
words “Eva Jekiel" and her mark, He (the witness) did net Ge it and 
he 414 not see Iva Jokiel make the mark, ‘manuel Jokiel wae Living 
with Walter Heft at this time, when he acknowledged the signature 
of Emanuel Jokiel he administered the oath te him as a notary public, 
then affixed his own signature as notary, 

Eva Jokiel testified sche 4414 not make the mark, that ehe 
never appeared before Kubistal and that she had never tolé anyone the 


“#- 


od 


dot ass omg beusent ost 820L .8 yal — — eonebive ont 


it £ SePtere 


_ Seenoed #08 aid tant taeuper ———— a Waqnes vonnwant edt of 


hour uber 


«ea? Yo shoecoig sat evieoes of _Watolieasd * bomen od oↄAboau fetter 
| founana W Seagie a Snenyes® eat ohtage aid to saeve ot at whlog 
yalyrias weqaq A .# tal 08 Lae ws dons aud tu my das wee afd ¥ ‘Tetset 


pL ie) 
| bas *yaasestened ed? Sas deumat edt WS Detuaene a of* bawgel sat 
| «belli need bad * SaaesatgA bon esaelon an ey vraeraa a , petaenen? 
“0 ed of efsoqmg Liaga twods —— soastwent rt stte 


lolaot Levmami yi bomgte af «Ltodol avi. das Leto Leunawi qd betues 


haa Ax⸗ re vd Lotdoy avd yd Sonya od of stzoqtug baa «tues old we 
ad? oh ideg Maton & ,fatetdus mall isn ested of wteye * bus —— 
ines seban bed tnommisanl 
| 4 — —— —— etd wos od Anuever tat⸗ taus ———— si —— 
| ao soltte afd ta of $id Litxe a! Lelio’ brane ae b gpaediye a2 Ssepepe 
— E— on te erin Pteli 108 {av Das, Lelser iovs aus fasta seses tL git ttaga 
bee eainneg od of ort omyte edd wont Das #2 apie Lounanl was od sada 
avi to Byam odd teed of betseqraq ot fate sade * —— —* — 
- founswl bas ss0itto aas of Lolset toumasa avvord —— ned att 5 — 
sromghelwonsos edt ao faq st oust analy ead 4* gtd — 
oxan baa .tuem ve fetsot avi Yo orus aasa om dondo tu — 22— 
olidug Visteon a need bad ati mor fownaas of 3 food Socrarizee 
bas ot <03 forsev avi son ton Ste eM, pet taba bas 9x80 ete F 


oul? tad? rots oolws aad wag oH At Linh of sotag 2 tegen 
ont at tug odw wond ton Sib of sexed ald 2% Lowman bet tedy oda as 


& Paes 


bas #2 0S toa bth (neons tu edz) * mabe sed. — — ro shed 


getvis new Lotte. lepnas’ .suem ost eden Lotter, 9— a eon ton 8 pam od 


ort angle odd bogbelnonsen, ont Ore soakt. aad 9022 #9 oF seg fon aed 
,olldeg Yiaton o aa mei oF dino ote beovoterniads on * fe 


* 


yas, 8.9 img auo , ae & aurl}e 8 


acis sade iran oda oxen ton u BRD ⸗ae ——— 54 toe 


ads anoyna blot a0ves bast ese gadget rene fetetded ——i —m 








i ae ers sb ig 


-G= 

policy was loct, The evidence shows iva Jekiel 414 net join in 
executing the instrument deseribed as “Affidavit with Selease and 
Agreement.* There te, however, abundant evidence thet the signature 
ef <ganuel to thie paper wae genuine; aleo the writing filed on fay 
6, in whieh he requested hie son, Leonard, be substituted es 
heneflolary. 

The execution of the Joint document filed April 11, was une 
necessary in order te effect the change, “hen the written request ef 
imenuel Jokiel wee filed on May 6 with the insurance company, the 
maxim that equity regards that ae done whieh ought to be done became 
applicable, and the beneficiary was changed from iiva to Leonard. 
Emanuel Jokiel had done everything he could do, 1s intention was 
manifest and equity would carry it cut. Kavanagh v. Sew England “uth. 
Life Ine, Co., 2356 111. App. 72; Sun Life Assurance Co. v. Williams, 
284 Ill, App. 222. 

It followe the court 414 not err in deerseing Leonard Jokiel 
to be the beneficiary of the policy and that {va Jokiel had no vested 
right in it. The Memorial Service, Ine., as assignee, had no 
greater rights than the aecsignor, va Jokiel, in whose shees it 
stands, <A policy of life ineurance is not a negotiable instrument and 


one who holds it cannot by transferring 1t (in the abscenoe of esteppel) 


Give a better title than he has. People v. Hichigan Ave. Trust So., 
235 Ill. App, 428; Patek v. Baim, 299 I11,. App. 406, Kemorial 


Service Ine, must look eleewhere for the collection of ite clain of 
$600, The jJudgwent of the trial court will be affirmed, 

| JUDGMENT APP TANED, 
O'Connor, °.J., and HeSurely, J., econeur. 


| 





X 
md mtol fou Sib Letvot eve eweda eonebive ed? .taol nsw —8 
hab annoteX aviv sivab2T2A" as hedisoaeh faemurtent edt ants uoexe 

@ustamgts oa? tad? senebive tastasds ,t8vewod wei erst * -#nemoera: 
Ys® ae Bellt gutviaw off onic {andineg aav teqaq sid? oF bun as 
ba bosustvedue od — 2 21d boteoupen od abe al yb 

— “sei — * ot 

osu sav ,IT fixed Belt? tmeawoad takot edt to noftunexs edt 

“ge seeupds Mesttew Se? ned vepnato ext booth of Yebuo at 

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| dtu Deaton well wv dysaaved two 2 verse biuew velupe baa eetinas 





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ba Bad \eangloen os ,.oaT \bivxol! Laitensi’ edt” 9) at Sigie 

$2 SOOM onody nt (SeLsot av¥ [xehglase Odd madi otis sodaeay 

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| Thdtoman 860° qGA ETE Bes Wakes iW debad’ tate’ Lega Lei bee 

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Mh sbeirartth Gar LabW tube rabid bi $W"enildi Sa 0088 

“GET tua. —— ie ’ a Lokiet ah eve Son bib wel 


* 





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fos ao 3 awe * ‘geste 


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he Samy | 


41363 yj 


é : 
ADELAIDE EBEL, y ; 
f APPEAL ROR 4 


4 crnoyaT cosh, 





MR. JUSTICE MATCHETT DELIVERED THE GPIWIUN OF THE COURT, 

Plaintiff filed an amended somplaint charging that her 
physician, Or. Patrick A, Sullivan, and her landlord, Alexander 
Gasoloff, without probable cause instituted prosesdings in the County 
court of Cook county to have her declared insane, Paragraph 4 of the 
complaint averred Sullivan caused his signed certificate to be filed 
with the clerk of the County court to the effect that he examined 
plaintiff and believed her to be mentally deranged and in need of 
treatment; that Gasoloffwmt to the office of the clerk and made ap- 
plication on oath *to try the question of insanity" in the matter, 
Paragraph 5 averred defendants knew the things eaid to have been al- 
leged by them in paragraph 4 were known to be falee, Paragraph 6 
stated by reason of defendants’ actions a warrant issued for the 
arrest of plaintiff; that she wae taken to the (ook County Psyeho- 
pathic Hospital and detained there until September 16, 1937, when she 
was released by the hospital authorities. 

Gaeoloff anewered denying he had acted with Sullivan in the 
matter without probable cause, and denied the averments of paragraph 
4 of the complaint, As to the alleged acte of Dr, Sullivan, he said 
he was not informed but denied he (Gasoloff) signed any false etate- 
ments or that plaintiff was impriscned because of anything done by 
him, 

Sullivan by answer admitted he signed the certificate 
etating he had examined plaintiff and believed her mentally ineane, 


ete, He further answered that an examination made for him of the 
records in the County court showed that Gasoleff, on August 24, 1937, 

















“THUGS GRY YO WOTNTGTO ARTY CUASVIUNG TraNOran sOTTeNt Jor’ 

“od fad? gatytade salslqaoo Sobmewa ha Bolt TeHaLalt 
debdaxelA txotinaf ret Sie movi lind A aelrtad nd datoleydg 
Yinved eft AL egnthoesor, Beturttadt odie eldadorq twodsiw’ rte Loa 
od to > ddavginet .enaant berafoos ‘ed ‘ovad of Yfnse0 H608'46 Heads 


- beLLt od oF ofeolittdes Heagie td Soddao mavitliu® Berisve Satalqued 


Bonkaaxs ef vat? toetre sd? of dive YWasod ade Yo stele oA? Mt tw 
 '% been nt bas hegnexeh ylLatnom od of aed hovelied baw rittasat¢ 
istiam edt mk "ytinaant te motteewp oat yx? of “tac We nossaol ig 


“afa need ovad of Bice egatdd oft wend efaaindted “Béribve @ dqaxgetet 


"8 Mqergaset en fat od of nwond ovew B Hqatgathg’ al ede “Yd Bagel 
oni? tot Bowanl tnarraw A anditoa 'éFanbASTes Yo Honser yt botAte 
~otoyet ytnwod A008 adt ot aede? daw ons tadt ;Ytitalely to teetee 


‘oda node Pees Of sodmetqo® Iidnw ered? Bentated bua Ladiqnort’ onitag 


pelt itodius Letiqnodt 6dt yo besnetet aa0 

od mt aavitive sti betes’ eee SE Pibteaa’ * * why 
sqargetag to adnéntevd edt “Betnob Leagan eldedorg saodtie — 
bien ed ,aaviltee 1 to sfoa begetsa oid oe eA” Wehbitqued off t0"s 
wetata onfat Yaa banyte (ttofoaat) of Botneb ted Pemore ty fon amd ‘oil 
ww enob giiddyns te on uooed ee ee Saw ETM): tadt 40 aeons 


4 94 — 5: Py. | ore 





etaoltit«es odt beagtea ef bettinbs xewana yd ame lige 


enanat ylietoom ted Sevetted bas ttitatalg Sentmaxe bad od —— 
at toe mid 20% obaa solteatowxe o tad? Serswane secltawt of .08e 


SRO BO we . So fered tact bewode fuyeo weeued edt al gheenee piel 


x 

appeared at the office of the clerk of the court and signed an ap- 
plication to try the question of plaintiff's insanity; that in thie 
application Gasoloff said he believed plaintiff ineane and that her 
own and the welfare of others required her restraint or commitment; 
that the records further showed the epplication was sworn to before 
the clerk and delivered to him, and "this defendant estates that he 
has no further information or knowledge, * 

As Gefense number two defendant Sullivan etated that 
September 1, 1937, on the report of a commission duly appointed by 
oréer of the County court, plaintiff's disease was found to be 
sehizophrenic psychosis paranoid trend, and that she was adjudged by 
the court to be "an insane person,” Ae defense number three defendant 
Sullivan alleged “The certificate made by him, on, to-wit: August 24, 
1937, was in the nature of evidence required by the statute of the 
state of Illinois in a proceeding to try the question of insanity of 
the plaintiff, and was made in good faith, with probable cause, and 
without ulterior motives, " 

A replication by plaintiff wae stricken with leave to file 
an amended reply, which was filed and is: ‘In reply to defense 
number two (2) of the defendant, Dr. Patrick 4, Sullivan, plaintiff 
states that she made an investigation in the office of the clerk of 
the County Court of Cook County, Illinois, in the matter of the al- 
leged insanity of the plaintiff, Adelaide “bel (No. 149519); that 
said investigation discloses that a commission wae appointed by the 
Court in said case consisting of Dr. Morris Sraude, Ur. 3. 0. Howser 
and Acting Judge William G, Knoch ef said court; that while it appears 
from the records of said cause that on September 1, 1957, said com- 
mission reported that plaintiff's mental disease wae found to be 
echisophrenic psychosis paranoid trend, said report was either im- 


mediately, or shortly thereafter, countermanded and thereby rendered 














Se 


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Stardom aobnet La Suedttw 

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seneted of viqet wi* tok bas Dols? saw told Viger debnous: te 
Visdatalg svi Lie 4 Aniviad .1C ,Inabneted ef? Bo (8), owe edie 
to drelo ed? to setite aif at aolttegtseoval ma ebam ote: ¢adt aotaza 
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| vꝛa oaa tk oLisw fads jfavon bliss Yo doond .2. mt Can ergbash patsod Sas 


“moo Blac TOL .f asdaetqe? no ted? eeuso Stas 20 .sdve0es yoo | 
od of Bawot aaw onsealh fatnem a'titintele tadt borroget a 


—— 


watt sedihe, saw ate biee ,bnerw Moneuegstodeug atuvatcor tte 











He MOLE at Lae aah PUR: See ee St — 4 
Ry eee ee) ee) ee eg ait tinct. tiene: ei sie 4 


3 

null and void and the signatures of enid physicians to said report 
obliterated; that through mere inadvertanee (go the undersigned wae 
informed by a deputy clerk of said court) the name of Acting Judge 
William %, Enoch, of said court was not obliterated from gaid report, 
thereby waking it appear like a judgment order that was authentic, 
when a6 a matter of fact it ig not. Said investigation on the part 
of plaintiff further discloses that no Judgment order appears in eaid 
insanity proceedings in eaid court, except 42s heretofore stated; that 
said insanity proceedings were ordered diemiesed by said judge on to- 
wit: the 9th day of September, 1937, whereupen the plaintiff was re- 
leased. from custody the following day, September 10, 1937. The 
undersigned hae been informed by a deputy clerk in the office of the 
clerk of the County Court of Cook County, Illinois, that the said 
alleged report of said commissioners was and ia an error that be- 
clouds the record of said proceedings, making it appear that plaintirf 
was thereby 4eclared ineane, when in truth and in fact she vas not, 
Plaintiff prays that on the trial of this cause thet eaid defendant 
be preeluded from offering a transeript of sald report of said com- 
missioners in evidence as alleged in hie defense number two (2) ae 
incompetent and legally insufficient; also frow offering any other 
evidence in support thereof, “ 

Defendants moved to strike this reply, The motion was sus- 
tained, Plaiatiff elected to stand on her reply. Judgment wae 
entered for defendants, and plaintiff appeals. 

Plaintiff argues that under the Civil Practice act (Ili. 
fev. Stats. 1939, ch. 110, §45, p. 2417) the motion to strike or 
Giemias takes the place of a demurrer, and that the reply as te 
Gefenee number two of Sullivan presente a perfeot defense, 

Defendante say the amended reply was bad because the matters 
contained in it were neither etated positively nor on information or 
belief as required by §35 of the Civil Practice act (Smith-Rurd 
Anne, State, par, 159, ~. 176). This ie not only the rule required 


| | = 
| Stoqes blak of sashoiayda btae to sextengiea edt bas Atov baa Lisa 
| aaw bengisuebun ef? of) sonms?tevheni een nguondtt aad? tbevered tide 

eghut gaived lo emax act Ghawoo blew to drelo yuqob a yd Dowro'rat 
— ydteqet Alse soz? Betated lide ten sav tau09 bhse to loonk 0 mabt thw 
oliaodtue aaw fait rebxo tremgbul « otf aseqas t2 gutten Woreds 
tas edt no mobtanitaevnl Blab ton si 22 font 10 «estan « aa 
Dine ai sissq “odvo tuemabyt on geds nevoloeth xedewt Titdstealg te 
| fat [Beata wroletored sa Sqeoxe ,fawoe bias al agatbeosorg Vlasent 
| -oo no eghul Bian yo bosetmelb bered+0 o agetbeosoug wWinsaal bkae 
~o1 new Yilvalaly od? moqueredy ,YS6L ,xsduedqet to yah dt@ ods itiw 

edt TGC ,OL <edmetqee ,yeb gatwolfor add ybotauc mont samt 
oft 6 solTie od? al drole qiuqeb a qd bewtotal need sad bong. 





bled ott tad jatontitt \ytawed dood to #awod yenuod edd Yo dnsto 
~ed tadd corre as ot Sas saw exonoteatamos Biss te trogen ‘begetts 
--qaibataly tad? aseqas 71 galaea mantbeovorg Biss to —— 


om Fe ae Pi 


tnahaste® Bias tad? enuso etd? Yo Iain? odd a0 ‘tant —E 
moo Bhan 20 #toqet Dias to Fqtroansxd « galretto wert ‘bebuloouq od 
as (2) ows <odmun senetod ald nt Beyslia sa conshive ni sxenoleaia 
redto Yaa galtetie sox? oa ta {fnetolttuant ¥Sfagel bas taet sqnoont 
"9 feered? Poqque ab ‘sonsbive 

~aua saw nolton od? .yiqen aldt ediate 62 boven efaabastea” al 
sav Tnemgiut .yiqer t9d no bnate of hetoole ‘Widealelt benkat 
atnoqas Tittalalg Sas ,etashnteb 102 ‘bosotas 

ffi) fea eetteas% Ihvid ede tebaw tad? ‘sougta ‘vittntett ae 

to oalata of notion ed? ‘whe’ a * OLE ide * —— * 


ton saw osm foal al bas dtuat wt oedw jensen! bevaloss ‘Worst saw 

















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 ategzam off shusded Bad saw (iqét Bobneme odd yee adaal 

} 40 aolvartetul ao ton YLovitivog betete wedtien otew Wi Wt Sealataed 
| Duuhi-ddims) Soe eoLsoati Ltvi0 elt to bt yd bertupes os tebled 


ay ey eee, ee ae a ee ee eee 7— ——- ay 





whe 
by thie section of the Civil Practice act but wae the law prior te 
ite enactment. Salten v. westwood, 73 Ill, 125-22; Hurphy v. Burphy, 
189 fll. 560-66, 

fhe pleading was deficient in the respects pointed out. It 
wat also defective in that it questioned the validity of an admitted 
judgment of 2 court of record collaterally, which is not permitted, 
Matthews v. boner, 292 111, 692, That the rule is applicable to a 
proceeding in the County court to try the question of insanity, see 
Moats v. Moore, 199 Ill. App, 270, 

fhe defense of defendants as etated in their anewers was 
conclusive upon the merits in the absence of a reply. the reply was 
preperly stricken, Plaintiff elected to stand on her reply and final 
juégment for the defendants was, therefore, properly entered, eiss 
v. Binnian, 178 Til, 241-45, 

The Juégment is affirmed, 

JUDGMENT APYIRMED, 

O'Gennor, P.J., and HeSurely, J., coneur, 








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a LI eee acta cit 


41119 


PEOPLE OF THE SRATE OF J 
ex rel, MERCANTILE 
OF CHICAGO, a b 
















) 
7 ) 
g corpoyation, ; 





Appgllee, —* rE 
an FJ z ; 
v La h COURT,” CO@K COUNTY, 
é 
CITY OF CHICA a #unicipal he. 
corporation, i a ‘3 0 7 Te 6 6 6 7 
Appellants. 


MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE CORT, 

Industrial Refuse Disposal Company obtained a judgment 
against the City of Chicago on April 22, 1936, in the sum of 
$79,645, October 11, 1938, that judgment was assigned to the 
relator, Mercantile National Bank of Chicago. Demand having been 
made by relator for the payment of the judgment, and the city and 
its officials having failed to pay the sum, relator as assignee 
filed its petition in the Circuit court for a writ of mandamus 
to compel payment. The city and other respondents filed their 
answer, the cause was fully tried by the court and a writ was issued 
directing respondents to pay the relator the sum claimed, This appeal 
is prosecuted to reverse the order thus entered. 

Respondents' answer admits the entry of the judgment, but 
denies the possession of sufficient funds to pay the same; it avers 
the levy and collection of taxes for the payment of judgments and 
the payment on account of judgments in —— af the amounts levied; 
it further avers that the judgment in question was not next in the 
order of payment, and sets forth section 88 of the Revised Chicago 
Code of 1931, providing for the payment of judgments in their order 
of entry and that judgments to the extent of $240,749 remained unpaid 
prior to the entry of plaintiff's judgment, The answer further 
avers the levy of $110,000 in the year 1936 for the payment of 
judgments, $115,000 for the year 1937, and $115,000 for the year 
1938. From the stipulation of the parties, made upon the hearing, 










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to awe ont mt ,d€@L .SS LtaqA no oysoldd tO YSL0 ont Jenthaya. 
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bus Yo ent bas ,tnomybst ott To dnesyaq ‘edd soP es elor Yd ‘obalr 
eongiees es to¢sfaa yawe edd yoq ‘ot Belbst ‘grttvad clsto fio eet 
avtisbism to dis s tot dowoo siwotkO ond mt dots ieq eek GOLLY 
tiodd beLtt adnchndqeor rorido “Bas YSIS eT“ daemyed Leqmoo oF 
| beveet esw thaw s bas Saoo odd yd botat vile? esw senso ond towers 
| iseqas eld? .bemtslo awe ont todsfox elt Yaq OF Biasbnogéet ypabtootls 
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ted ,tnemghy, edd to yrinme oft atimbs iswens ‘etnebnoqeoA 
etoves SE youse oft yYoq ot ebant Saotottiwe Yo motezeez2zog eft sotnob 
bas etnomgbut to Jnemysq sft stot sexed to aotsoelfoo bus yvel edt 


~ 


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edd ai txen dom asw motveoup at taemybst edd tadd exevs toddiwt tt 
ogsoidd beatve eft to 88 moittoee dotot etoe bas .imemysq to teb10 | ~~ 

sobio atedd at adnomgbut to Jmemysq odd acl amtbivorq ,[£eL to eboo 

biequnr benismat GPF, O4SS to daosxe edt oF etnompbut, todd bas y1tne to 

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To smemysq exis 10d O€CL asey edd at 000,0LL$ Yo yvel odd etove 

1589. exis ‘tot 000, e1f8 bas ,VECL rsx eri 10° O00, 8f1¢ ,etmomgbhst 

euatised exit moqs bam oiaaeao to softelaqive edt mont Seer 


—* eh Joa go —* 








wo Deo 

it appears that the total amount of collections of taxes for the 
years 1936 to 1938 inclusive, applicable to the payment of judg- 
ments and interest, is $261,314.50, and the evidence discloses that 
during these years the city paid judgments with moneys from its 
Corporate Purposes Fund in the sum of $641,711.88, This aggregate 
amount includes the sum of approximately $600,000 paid pursuant to 
an order for a writ of mandamus to policemen and firemen who were 
illegally discharged, These payments were made in 1939, under an 
order in the firemen's and policemen's case entered in July, 1938. 
That order does not direct the City of Chicago and the other respond=- 
ents to pay the approximate sum of $600,000 out of the judgment fund 
for which appropriations had been made for the years 1936 to 1938, 
inclusive, and in which collections had been made in the aggregate 
amount of $261,314.50, Nevertheless, the principal defense interposed 
by respondents is that the city has paid out on judgments more money 
than was levied and collected for that purpose, and that by reason 
thereof the city has done everything within its power to provide for 
the payment of petitioner's judgment, It is also argued that there 
are unpaid judgments prior to the relator's, which by ordinance must 
be paid first; that there is no money with which to pay these jJudg- 
ments, and that all moneys now in the corporate purposes fund are 
required for the ordinary and necessary expenses of the city. 

As the principal ground for reversal it is urged that the 
undisputed evidence discloses that the City of Chicago has no moneys 
available for the payment of petitioner's judgment. There is no 
dispute as to the facts. The judgment was entered as alleged, and 
assigned to the relator. Demand was made upon the city, but the 
judgment was not paid, The gravamen of the dispute is whether or 
not the financial condition of the city is such that it can be 
compelled to pay the judgment. After the city had been ordered by 
mandamus to pay the policemen and firemen the sum of $600 4000, the 
comptroller treated this payment as a judgment against the city, 








aSe 

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~gbhut to smemysq ost ot eldsotiqgs ,evienlont 8£OL o¢ Sel raox 
 §adt eszoloaeth eomebive eit bas oC ALE LOSS al qieotetat bas ednom 
avi mou? syenom di iw — bay xdbo corn — eaond gatu 
evsyerg3s eld® BA, (fY.LA0¢ to * ent at boast — od stoq109 
ot sneweisg bisq GO0,9038 yYLesamixorq¢s to mare edd eebslont Jnvoms 

_ etow orf stomet lt bie memsotiog eg exuiabired 10 dor 8 — ye phy 

ms tobay ,C£OCL at sbam otow eseecrysy e2odT .bogtasioe tb vLlegeLit 
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bat tadugbit ed9 Yo tse W0Q,008Y Ro mus “edmabsiodyqa: ils Sein Jed lage 
ECL Gs BERL axsey odd to? oboe mood bad dnekfsliqotg¢e dotdy “x62 
odagemyys ond at obau need bad emottoesifos dotdd ak bas evtenfont 


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Yorom etom atdemybut ac ivo bhaq aad ytlo odd Sad et atasbaoques yd 

noaset Yd Jails bas ,seoqtwg sand tod Betoollos bmi bétwel ‘daw nails 
toi ebivotq od xowogq ad abdd bw gatitnereve ends sad Ytko odd TYoor9eds 
 etedd Said Songre ols ef $I tuemgbut 2txenottiseg “to tomes “out 


SFaem sonsabbte yd detdw ,2aetalet ond Ot rokig ataemghat biedmw Sts 


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eis bast acsoqivg siatoqies odd mt wort eyonem [fs stadt bus ,etaem 
-VWio edd to esenteqxe yiseeesen bas ytshtb1e edd 16d beitupes 
edt Jacid bogu et Jf Iserevet tot bapoty Isqtontiq edt eh “- ** 
‘eystion om eae oysoldd 16 YZLO edd tend seeolorth sotobive ‘beteqe tins 
ot at sted? ,Jnemgbut @!x9a0ttideq to tnemysy sft “tot efdeltaves 
pet (he YODER a Béretnb ‘ail “Sittlig li at? “Sabin dd SF ad SOLD 
ort ted .ytto edd moqd obawt daw Siemed \to¢sIor odd oF Song ties 
to teritoria ef edger oily ‘Io mémevaty ott .bteq gon 2aw dudmabit 
“ed Heo $2 Pads Mowe UF Who odf Yo adtitoAes Istoasnt? odd fon 
yd bersbto mbed bad Yslo add teeth Jtnomybut emgbsit edt ‘yaq 09 ‘bortequs 
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| getto bid Fentogs tnemghut 6 as dabangsg” ‘ht “Servis voattennca⸗ | 
— ee 


mn 

and it was charged against the corporate purposes fund, Inasmuch 
as there had been no direct appropriation for the payment of this 
judgment, it was paid from corporate fund moneys borrowed for this 
specific purpose on tax warrants and entry was made in the books 
of the city comptroller reducing the corporate purposes fund cash, 
and at the same time reducing the amount of judgments outstanding 
correspondingly, Before the comptroller paid the back salaries to 
the policemen and firemen, the corporation counsel of Chicago 
addressed a letter to the comptroller, in which he advised him, 
after referring to section 2=-a and section 3 of Article VII of the 
Cities and Villages Aet: "The foregoing provisions of the statute 
give express authority to the City Council to borrow a sufficient 
amount for payment of the salaries in question, Under the provie 
sions of Section 3 above quoted it would be lawful for the City 
Council to borrow the money from any source outside of the funds 
of the City to be repaid before the close of the fiscal year 1939, 
but, since the City has no borrowing capacity under the constitue 
tional debt limitation, the City Council may authorize the City 
Comptroller and the City Treasurer to loan or advance the necessary 


amount to pay the salaries ordered paid by court from any funds 


of the City ediate cessal or the purpose for 
Same were appropriated and to provide in the annual appropriation 


bill for the year 1939 a sufficient amount in the appropriations 
for salaries to reimburse the funds from which the temporary loans 
were made," (Italics ours.) 

It is conceded that the sum of $261,314.50 was not used 
to pay any of the judgments for which the appropriations and levies 
had been made, except for approximately $40,000, and it is argued 
that this money was used toward the payment of $600,000 made to 
policemen and firemen under compulsion of an order entered in a 
mandamus proceeding brought by the retired policemen and firemen, 
entitled “ilalloy et al. v. City of Chicago et al." As is hereto- 
fore pointed out, the order for the writ of mandamus in that 


«fo 
fdoumesnI ,bawl eexzoqusg etetoqrom oft saategs boeytado eaw tl bas 
eidd ‘to tneomysq eit sot aolialugoiqgs doouth on need bad otedd as 

— tot heworred cyenom bast ed st0q t09 mor? bieq Zow at etnomgbut 
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aso Bast coeoquiq Stetoqies odd yatsubet xs{Lozsqmoo Wie ed} to 
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“egsolsdd Yo Isanseo motdateqres edd Aone at bao meneotiog edd 
aut beetvbs od dobdw mt teLloxsquo9 odd os woddol 1 8 “betsetbbs 
edt Yo ITV slotssi 40 & ‘moltoce bas a-$ molfoee of gataretot rite ‘ 
etadade aed to ance bvo%g Aior⸗err eat sod — ete: 
~¥vexg ody tebad — al soliaies “ods 0 dneateq ‘20% mot ts tes = 
‘yt ony 10% Intwal od bivow it bedoup *8 — 
‘phan? edd to ebletue seus “gh mort Yertont oid —— ano) 


REL | ts0y Teoalt oiff t0 eeoLo edd esoted bkaqer od of wid os * 

wit Henc® oct ‘ohaw {Longe palwossod on ead wid od) Sonte «tind 
| : wi sam wits eee ad 
“Wh eat exizordus Ysat —— — “ent * motd, — Ta 





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fot i suo — 





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anaol seinen aye ould mex ott — —— 
* — ebbradty eben — 
— — 
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bongts at $2 bas ooo, 08 (lsdemtxorqgs tor" tyooxd' ,ebam ‘neéd bad © 
ot shan 000,000% to sabmyad’ eit baited “beeu eaw-yonour eid att | 
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Heat his mémookfoy beriter eld yd digwotd ghtbesvong eximsbesit 
~étorsit ek BA "SLR de: ‘ogadidd to yto Vv cis de. <oLteu"’ betfttne’ 
<Yarld mt exmabnaw toFEaw St rst Gobto" ott (tho besatog” Sxet”” | 





4 

proceeding does not direct the city to pay the sum of $600,000 out 
of the judgment fund for which appropriations had been made for 

the years 1936 to 1938, inclusive, and obviously the court could 
not order a municipality to pay moneys out of funds which had been 
appropriated for one purpose to satisfy obligations for another 
purpose, (Chicago v, People, 210 Ill. 84, 93.) The corporation 
counsel evidently recognized this rule of law, since his letter to 
the comptroller does not recommend or authorize the use of the 
$261,314.50 which had been appropriated and levied for judgments, 
for the payment of salaries ordered to be paid to the policemen 
and firemen, but he simply recommended a temporary loan from the 
funds of the city "not immediately necessary for the purposes for 
which the same were appropriated," However, the sum of $261,314.50 
was immediately necessary only for the payment of those judgments 
which had been entered prior to 1938, Relator's judgment was entered 
in 1936, Therefore, the fund which hed been appropriated was avail= 
able for the payment of this judgment, which had a prior right to 
payment over that of salaries of retired policemen and firemen, 

and we think the City of Chicago did not have the right to the 
prejudice of relator to charge the $600 ,000 payment against the 
judgment appropriation, 

Respondents cite numerous cases tending to support the 
contention that the city had no moneys available for the payment of 
petitioner's judgment, and that a lack of funds is a complete defense 
to a petition for mandamus. The recent case of Deljolf v, Bowley, 
355 111. 530, is cited. In that case the trial court awarded a writ 
of mandamus directing the county clerk of Boone county to issue 
warrants upon the treasurer of that county, The defendants' answer 
averred that there was no money available from an appropriation for 


the purpose. Petitioner demurred to this answer, and the demurrer 


tuo 000,000 to me odd yaq of YIto ot doorth ton Yeod gatboesootg 
TO? obsm mood bail anolistuqozqqs doidw tol bawt tnomgbut edt to 
blyoo jumoo edt yLawolvde bus ,evbewfont .6¢er of OECE ersey ‘edt 
need bat doldw ebawt to duo eyenom yYsq of yJilaqtotawm 2 tebto ton 
tedious 10% anolisgiide yteltae of seoqumq emo Ol betstrqomgds — 
noltstoqzos eT (.€@ .98 fff OLS .eigoed .v ofsdidd) .esoqing 
ot 1eddel eld conte ywal to ols: elds béstngoss1 Ylshebive Leeiinos 
edt to sey edt sstiodivs 10 baommooet Jom esob aeLlotsqmos es 
e2tnomybut tot betvel bas bodstiqo1qgs mood bai dotdw OR. ALE L888 
memeotiog ed of blaq od of boteb10 eelreise to Jnouyeq ont ‘rot 
odd mort msol yisi0qmed s bebaemmooet yiqale on ted .mome7ltt’ bas . 
10% 2oe0q 1Kq edd Tot ywwerecen Yleosatbemmt ton” YIIS eft 10 ebaet 
ORALE L983 to mue add ,tevewoH “,botatiqo7q¢s otew omse oft Hotiw 
atnemgbst eeodt to tnemysq edd tot ULho Ytektboen YLotatbemut eaw 
' perxedae asw daemgbut e'rotafet .8€@L et setae beretne need bart no kdw 
, ~Liave saw \orotsted? dee at 
oF tngix totig 2 bed dotdw siaomybut elds to tnemyaq dy tot bids 
etteme1tt bes sismeotiog bettie: to eetisise to gait reve Snomysg 
edd of Sdgis old over om bib ogacld? to Yt odd uantdt ow bas 
edi Sentsys Jnoniyed 000, 003% eit egtado oF sotefor to sotbuteng 
toltsiiqomes: —— 
oxi sSueqqwe of satbast 20259 evoremun ofts ednebsoqeet 
to dnemysq oft aot eldsiisvs —— on bail Yi exit tart ‘btdndtieo 
eeaetob evelqmes s et abant to dost s tadd bas .Srtomg but 8! reno tt Eteq 
- sXaluod_.v_idiied ‘to ozs dneoot of ,enutebnam to2 aolttveq s ot : 
| “Stee a bebraws duos Istad edt seco tard ar “abet ke at ,Of@ ,£iT See 
* eyeet os auoo edoot to Axe Ls yinwos ods gatdootkh emmabaam to 
Towels 'edaabsisteb eT ,ydewoo salt to rewesetd afd Hogw estnstisw 
ToT sotisiugorqgs ng mort oldstteve ‘yenom on eaw eredd tant berievs 
‘xorumed ot bas , Towess bey or borumeb ‘aeaotd riot erg 


‘olism bolt Eocte 








* —9 4 
ike, 4 FRG Het ator eae 


: * 4 
4 Ptr 


~je 

was overruled, Nevertheless, the trial court, without hearing any 
evidence, entered a finding for the petitioner, The Supreme court 
reversed the judgment as erroneous because the answer had raised 
an issue of fact, and indicated that evidence should have been 
heard to show the answer to be untrue before entering judgment for 
the petitioner, In the instant case a full hearing was had on 
respondents! answer of no funds, and the court after hearing all 
the testimony found that there were funds available for the pay= 
ment of the judgment, 





222 Ill. 9, a demurrer 
was filed to respondents’ answer which alleged that no money was 
available in the municipal treasury. There was no prior judgment 
against the county and the Supreme court simply stated that to 
justify a court in awarding a writ of mandamus involving an expendi- 
ture of seine it must appear that the necessary funds are on hand or 
otherwise under the control of the defendant. The relator in the 
ease at bar met this requirement upon the trial by competent evi~ 
denee, 

A number of other cases cited by respondents holding that 
a municipality cannot be compelled by mandamus to pay money out of a 
fund when no appropriations for that fund have been made, or where 
the appropiation has been legally exhausted, were decided on the 
pleadings, without taking any evidence, and without reviewing these 
cases in detail it may be stated generally that from the pleadings 
it did not appear that the necessary preliminary steps to the 
payment of relator's judgment had been shown, In a number of the 
cases no issue of fact was presented and in some instances the 
petitions sought to compel an appropriation and levy where no 
antecedent appropriation and levy had been made and the money 
collected, as was done in the case at bar. The policy of this 
state is well stated im the recent case of People v,. Kelly, 367 
Ill. 616: “A city and its officers can have no higher duty than 
the payment of an honest debt reduced to judgment, and it is not 
discretionary with its officers whether or not they shall do so. 


@ 
“te. 
Yas yitised Juomsiy ,tiwoo Ietid edd ,eeeleddievel .belurievo eaw 
tues emeigse efT ,usnotiiveg edd tot amthntt s boxesne sanebive 
beaiet bad wewers oft senusoed anosmotts as Jaomgbut ont bee sever 
seed oval bivore sonebive tadt fotcotbat his ,sost to eweat aa 
19% dnemyghbet gutietns eroted emrdiiw ed oF wewerts my wore o3 bused 
so dati wew gutisot (let = oesd dttadant off nl .temotsiteq edd 
ils gatised «ete tavoo edd bas ,sbant on to tewens tagaebaoqeot 
—qaq edt wot eldsiteve- shaw? evew ved? Jedd bnwot ynomtseed edd 
|  Smemybut odd to tuem 
rormmeb & .@ .ffE Ses 4 ‘36°Steof at °° 
_asw Yorom on sad? begolic dotdw towads ‘etnohnogeer oF beltt eaw 
tnempbut. solwq. om eam sxedT -.yuwesew Laqtofnum edd HE eldattevs 
od deft betsta yiqate Sauvoo emorqee ord bes Ytatoo ‘edt aters⸗ 
-ibaegxe as yukvfevel esmebman to dtaw « yathuews mt duos ——— 
10 hasd go o1s ebast Ytseeeoen end terld batch Guild Ys Wilaat Se’ — 
oid mt t6tafor al .tasbaeted oft to Loxwned ont zobrw eelwredto 
rso dasteqmes ‘yd Lsixd ait moqu comeing ste] elds tom tod de oeso 


qotorndt?  SOCeE nt 





n 
% 4 
* 


21 oie 


ae 


Sadt yntbLod ainehbaoqgeet yd hetts ease terlto to tedmen 1 
>" to Ino Yenom Yeq of exmeboam yd —— od Jonas ste ho kau a . 
eit mo bebtood ovew ybetewedxe YLLegel need eat —— aa 
esedt gutwetver twodtiw bus ,eamebtve Yas galtiss “Shodd be “@ tsntbsbla’ 
egathselg edt mort tedd vilsismes betate ed Yam $t tiedeb mt 26289 
exit of aqotva ytathabion Yrsutodesd arts fads tsegqn gon bib st 
etd te redmun 3 aI node’ ated bad tromgiwt *kz0dsler 6 » dnomeg ea 
edt peotstani emoe mt bas betaozetg asw Jost to ‘eweak om core 
oft oto YveL bas seldataqoryqs we Loqmds oF tdgude andti.tvog. 
Yoson edt Sas ofan nmoed barl yvel bas apivatuorgas jnobeoot so 16 _ 
“shed “te -yotiog ed? sed ts easo alt ‘gk enob eaw es — 
NOE gyllek ,v elgoet “to veo Yiovey ett ‘at betade tion ot ‘este 
‘martesgtub stodgy on? Wart ned dtediYe aet Bas yfte AY" 1820 «J oa 
tom 2k St bus ,tnomghul ot beowbot tdeb Jesnod as to tuomyeg odd 
we ob Lfarla yedd ton 10 teddedw exeoltio att déiw ytsnoltemsetb 





6 

If the payment of this judgment, or any part of it, would neces- 
sarily place the officers of the city in a position to prevent 
them from carrying on the essential functions of government, that 
fact should have been shown by proof. (People v. Rice, 356 Ill. 
373)." 

The remaining point urged by respondents is that the 
action must fail beesuse the record shows that relator's judgment 
is not next in the order of payment, as is required under an amend= 
ment to the Judgment Tax Act (paragraph 697a, p. 544, chap. 24, 
Ill. Rev. Stats. 1939). The amendment seems to have been enacted 
as a limitation upon the ministerial powers of city officials, in 
an effort to prevent them from voluntarily making preferential 
payments on judgments. This is indicated in People v. Kelly, 361 
Ill. 54, in which the court said (p. 59) that it was “unnecessary 
to discuss any possible effect of the amendment to the Judgment 
Tax act o& any provisions of the ordinanees of the City of Chicago 
concerning the order of payment of judgments," since no question of 
priority was involved, The court said that "there is admittedly 
more money in the judgment fund of the city than is required to pay 
the claim involved and there is no evidence of any other judgment 
creditor making claim on that fund. So far as this record shows, 
all other creditors may be acquiescent and satisfied with the 
receipt of interest payments such as were shown to have been made 
to the appellant here," Likewise, in the instant case there is no 
evidence that any other judgment creditor is seeking payment of his 
judgment, aside from one who filed a mandamus suit subsequent to the 
institution of this proceeding for the collection of $18,000, It is 
pointed out in relator's brief and argument that the comptroller may 
send a notice by registered mail to the judgment creditor that his 
Claim is ready for payment, and if he fails to present his claim for 
payment within fifteen days, then judgments next in order of entry 
Shall be paid. The record here is silent as to whether or not such 


notice was sent to any or all judgment creditors whose judgments 


6 
a= 
-mgeost binow .32 to dtsq ys 10 yinomybel elas to smomyeqo eds at 
- $nevetg of HMolskeog a ak YL oft to etostiio oft ooslqyLhase 
tadd ydoemerrevog lo amoltonust I[siimes2s oft no pnityi1s. mot meds 
LET GUE yooth .v efoet) .tootq yd mworle mood. eval bivorie tost 
atin | Hine 2 
ond tadd et stnohbnoqeor yd beguy dakeq gntatsmen of. . 
tnemgbryt etrosyetes garld ewore broeer edd eeveoed [let tem moldos 
~biféns 6 ichay botiepet et es .tnemysy to Tobto ord ot duo For et 
eS .gqeco .oee og aVCd dgergstsq) toA xs dromgbnt ed o¢ toom 
 betosne need eva of emsoe Jaonbuome. fT... (RECIveded® .veH , LIT 
at .ulstotyvto wo to erewog Ietretetnte odd noqw rottesimk® ses 
istinexsterg gadtsa YLivstasTov tier? meds Joven, of Fro? Hs 
Loe wwilet .v efcoot mt betsotbnt ek etal Jetcompbrt no edioayeq 
eiseteconns eow tt Farid (OC .¢) Dhae PawOo ors Molter oe VELT 
- Fromgbut ond of dnombriems eds to toeTte eldtetoq yw wenoe Lb Ot 
ogsolt to yO et to eoortanth10 ent to endhe tyvorg ‘yas! to Jom maT 
to soiveenp on conte “,etmomgbut ‘to Jneaiysq Yo teb10 edd yrbartosnoo 
eibestimbs ef erode” tedt bise dasoo efT ,beviovnt eaw yttvobuq 
yay of botlnpot ef send ytto edd Jo br t tnomgbnt ent at yenom o Tom 
 gnemgbet verte yis te sonebive on ek stedd bas bevlovat mtslo edt 
atwore baovet els as ast of  .bnwt tadd oo mtalo gaidem “ot thoto 
off} AYiw beltelise bus dxedeblupss sé yan erotiboxs teilso Lis 
 @bsat reed ova of nwode siev es donde atdomysq Jeetetnt 20 tyteves 
‘om et etedt e2co dustent edv af ,setwedtd "exer taalieqgs oft of 
aid to Sucmysq gaitoor ek tosvibeto Feemabst vedio yi Jedd eonebive 
edd o¢ tnexpeedua dive enmsbusst s SeLET ofl oro wort sbtes ,smombut 
at $I ,900,859 ‘to nottosLIoo edt 10t gadooory 2 tdt to notdudbeent 
yom selLovtymoo ef} Jatt Jnomvgts bas tetid #*toseler mt tuo betatog 
etd tesif sodtbero Snengbnt edd of Lien beretetzor yd solions hace 
tot miafo ebt tueeerq of effet otf EE ‘bas ,snontyed rot vbsea et uteLlo 
visas to 1510 ni dxsn etnemgbut mort yeysb need? aldo tw. Soomysy 
dove For 10 teddertw of Ws taelte eb Stor Brose ofl) /btaq od Lidde 
— seosw evoed kbers — 10 Ys oF jnse aew-eotton _ 


ati adie * runnod 9792 tS oe 








7 

were entered between January 1, 1935, and April 22, 1936, the date 
of the entry of judgment in question, and relator's counsel very 
appropriately say that they have no way of knowing the number and 
amount of notices for payment sent to the holders of judgments by 
the comptroller under the provisions of the ordinance, 

The rule adopted by the Supreme court is that the person 
who actually wishes to collect his judgment and is diligent in 
enforcing collection thereof will be rewarded with a writ of mandamus 
provided there are available moneys in the city treasury and approe 
priations have been made therefor. (Feople v. Kelly, 367 Ill. 616; 
People v, Kelly, 367 I11. 631.) The record in this proceeding 
indicates that the relator comes within that class, that it was 
diligent in enforcing collection of its judgment, and that since 
funds were available in the city treasury for which an appropriation 
had been made, it should be rewarded with a writ of mandamus, ile 
think the writ was properly issued, and therefore the judgment of 
the Cireuit court is affirmed, 

JUDGMENT AFFIRMED, 


Seanlan and Sullivan, JJa, concur, 





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efsb eft s Lia bia .2EOL LL ersimbt meowsod betstite’ otew 
yrov Isentes et4otaiet baa ,moltetup ot thomghut to yrtie ond to 
‘bs tedumn afd gntvetnl to yaw on over yord Jedd yaa YLotatiqoteqs 
Yd etmonghet to-exediod edt ot duce Snemysg tot ested to thioms 
.sonsntbro edd to enoletvorg ont tobay t9lloxwwgmos ons 

nonteq eff tadt at dunoo amerqn® oft Yd botiobe elnr eaT 
mk ¢ueghith et bes tmemmbot eld toellon of eesletw (Liduiss Ode 
axmaiiten ‘to thaw s difv bebtswet ed ILtw tocetedt nottoetios yatstotne 
-o1gds bas ymeess3 Ytto edt al aYonem oldsltsvs ox ox6elt Hebtvetq 
;£d .L1T VOC pvifed .v efgosg) .teteveds sbem mood evad -dnotssiiq 
‘gakisooorg aisit at Stoves ed (568 .ILT FOE av efqosd 
saw Sk tant ,eeslo dads nidtiw amos totslet sty sans sedadLbAt 
conte sass brs ytmomgbyt eff to moigoolloe gntototne mt sasghLhd 


solsstieoteqs as Holdw tol ywesexd ytto add at ofdefkdve oxsw abant 


ot Jermebaien ‘to diaw 3 dd by bebtawed od binaries: \ebam Heed Bad 


to = ‘en? stots say ‘bas —* —————o —— 
— at tooo Ptoetrd ett 
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one Ew ont 8, geet teil ise ae att ae 


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itches ooodw otéd therm dnamenet fie fo <gite & Tet oat ae 


41556 


in the Matter of the £atate of 
VIRGIL M, BRAND, Deceased. 





HORACE L, BRAND, 


Ve 


ARMIN W. BRAND, 





Appellee. 
WA. JUSTICE MeSURELY DELIVEARD THE OPINION OF TRE COURT, 

Thie is a controversy between Horace L, Srand and Armin ¥, 
Brané, administrators of the estate of Virgil H. Brand, deceased, over 
their final account in this estate; the Probate court first heard the 
matter and entered an order; Horace Srand appealed to the Cireult 
court, which entered an order essentially like that of the Probate 
court, and lioreace Brand appeals to this court. 

Virgil M. Brand died intestate June, 1926; in July letters of 
administration were issued to Horace L, Brand and Arsin ®, Brand, the 
sole heire at law and next of kin of their brother Virgil; differences 
arose early between the administrators; there was a delay in filing 
a final account in the estate, and July, 1935, Armin by petition in 
the Probate court had an order that Horace file a final report; this 
order contained a stipulation that the administrators would accept 
as final all the rulings of the Probate court on the final report, 
waive appeal, release errors and do nothing to set aside or interfere 
with the court's rulings. 

Horace filed @ final account in whieh he claimed credit fer 
administrator's fees for himself of $93,876, and fer Armin, $51,125; — 
he also claimed credit of $871.72 for an alleged overcharge for in- 
terest on an open account, also a oredit of 4628,19 on the Erne lL. 
teddies claim, Wre. Zedd@ies is the daughter of Horace. He aleo 
Claimed credit for }600, said to be due #, L. Brand & Co, * 


Armin filed objections to the account as stated by Horace, 
with an audit of the estate prepared by Arthur Young & Go., public 


sth eames —* 


v * Sts 


—— ee 








Bae SG Ve Lswita Geli 


(a tHane. of EM 


{TANGO aur WO ROFHTGS a) exmnvnssa vianuten worvent! {i 
| J A ek wo ah ato trot Hk sat 22H 
i aevo ,Desseoe Bhetl .M L2gelT ‘to etatee-adt te a4 | | | 
| eid Srewd gett Piuoe e¥adord odd porates aidt at —— teat he 
q 22y0%20 ad of bafesqye Bawi® contol prebre ie Herodite ud Waeeal 
(etadou? sit Yo Tale ssBL eltattmonse wore sa Deters dot” Suds 
| —D ee ee ee ee 
| to erodes elu mi {80% anu ofateodan’ Deis bam rege OST 
| eft ,dnawi .W ofwrA bas Saerd . eoarell of Bertet oxew' i 
| meonotet tts iitgutl eadtord «ied? to mid to txen Sue wal te vated ofa 
(MEET mt yoLeb a enw ered? pevotetZalatads off meowted Uftse onore 
at mottite yw mimxd OCCL yu Bam Vettes’ ede RE PRweoed” Fenty 
oid? {euoqer Lantt off? eowi0ll sad aod ꝛo me Bad tawoo otador’ ait 
fqe00s Bivow axolerdalntnbe eit tad? notteluqtte * Beatatace 1ebx0 
Frege Innit edt? mo faveo otadort ond: Yo ngntsin od fn Sant? ea 
eustretal to eblea see of galdton ob baa atovie eeseler .Iseqas ovtew 
i -wgative a'taueo odd roo 
) 20% tibero bealale ed dotdw mt @nuoeom Lanlt.» bell. sont ee. 

. 76Sl 189 .alesA rot ban 898,842 to Veeald q0% aeet — 25 
“fi 40% sgtadoteve Sogelie na set ST. ITS te tinecs beatles bata ot 
wl steal ed? no @f.988 to sibexe s ents ,tnw0oea meqo na no Seer 
oala of .e0etol Yo rotdgund odd af a@kbSex .ncM tale nel ox 
00 & Baan wt .M oub ed of Akae 008% a6? fiber bemtas 























-2= 
accountants whe were selected by both administrators for this 
purpose. 

By agreement of the parties the Probate court statec the 
account. ‘The court allowed Horace {6000 more than he allowed Armin 
ae administrator's fees. This apparently was on the basis of an 
allegeé agreement in whieh Armin consented to this allowance. Other- 
wise the administratere would be entitled to equal compensation, The 
court dieallewed the claim of Horace for credit on account of the 
teddies claim but allowed him credit for 2500 due I. L. Brand & Co, 
The other contreverted matters, including the accounting on so-called 
Roosevelt road property, the prorating of taxes and the division of 
gome of the accetea of the estate, were incorporated in the order by 
agreement of the parties. Horace, although stipulating that he 
would not appeal from the accounting sade by the Probate court, ap~ 
pealed te the Cireult court, which stated the account virtually the 
game ag in the frobate court but alse allowed Armin attorney's fees 
for defending the appeal. 

when letters of administration were issued te Horses and 
Apain, respectively, they agreed that Horsce chould manage the real 
estate left by Virgil, and Armin would handle the personal ertate. 
They made all important decisions Jointly. Virgil's estate wae in- 
ventoried at §972,596.99, and coneisted of a large number of real 
estate mortgagee, notes and sccounts receivable, bonds, stocke, 
gurios, jewelry and cash and an extraordinary collection of coins, 
medale and menentos, 

Counsel for Horace in hie brief questions the allowance of 
interest on an indebtednees of Horace to the estate, citing a nunber 
of caves holding that interest is not allowed on open accounts in 
the absence of any agreement to pay interest and before the indebted- 
neee i¢ due or demand wade for payment, It may be conceded this is 
the law, The facts, however, show that when the two administrators 


" bl 





a me 
uldt 10% erotaxtaininhs dred yd betoeloe etow ody stastavooes 

ody Betase tqwoy wtadert odF volttuag edd 10 tnomoetga — i | . 
atmiA bewolls ed ned? orem 0000) sonxoll bewolls tawo0 af? Aauoeoo⸗ 

ae to otnad edv no saw Yitaetaqgs slat .nest exotattetntads a8 
-eitG .enmawolie aftit 6? Sefteadco aiertA dotiiy nl taomeetga Dogette 
edt ,noldaanequos Laupe of Beltiine sd bivow etotardetninba edt -eelw 
edt Yo ¢auoces mo TiSexy we come Yo wALe ody Bowellaatd sawoo 
00 6 "BAANE LD LH ouB 008% 40% tier mid Sewolts uf ctate eolhies — 
 «bellac-ee ao gultnasooca eat gaibulond ,atetsan bestovertnos — 
‘Yo Aefatyld edt baa sexed Yo ant¢avorg oft (ysreqoty Beox PLevenson 
yd <etto sdf af Sevarsqicont wiew ,sfatae edt Xo uteten eat to’ emo 

od tad? gattaluqtte dgtodtic ,soareH .aettiag off ‘Yo sremeerya 

‘(agp tuvep etadet? odd q oben gattnveses eft mont iaeqas ton Bivow 
en9 Uflanzity tawooes off botata dette \taN09- dtwortd ‘edt ot 
geet: — afexd Bewolla oale tad tee otadoxs ont ae a⸗ nae 
stneqgn edt yatbaoteb 402 

‘bis SORT! of Beune etev soldatalatese t6 enereer ment” —2 
Iner 9f2 ogsnam Sivode sostel tadd Sootga yedt Ulovisnogtot —8R 
——— qd later onstee 
-at asw ofatas a'itgaiY [yleatot enchétosd sistzoqal Lie oben Yo? 
faey Yo asdann sytel « To Seiataneo dia” 80 088 (A007 Fa ‘Botcotaev 
ae .aasorfa ,shnod ,eldavieoss atawoera baa’ woten: shaqnansen “sentir | 
— — te Holttoel foe Yrantinreatixe aa fan — SOOT: —X 
— E—— — 

tO voanauo Aa et? —EEE ati at — v⁊e⁊ Tonmued 6 
q xodunit a yattio states eft od Séax0H to aeenbetdebal na ao 8 one * 
af efaneoea nec no bewolls ton a2 testetat tad yalbted evade 0 
j abotdebnt eft orored Rng deetetnl ya" et: ‘thaneorga bce to X i i 


wh ately Bebesaeo ed Yes aE) « tromeeg * a 
—- gtodietatadads owt edt doscte gadtowodany 


— 

















oe 
conferred as te the open aecount of Horace with Virgil's estate, 
Norace submitted a statement of account to Armin requesting that Armin 
aekneowledge by his signs ture that it was a true atatement, After 
Making a #light addition to the wording of the Gecument Armin signed 
it and made a copy for himecslf, This constituted an account stated 
between the perties. In this document which Nersee himself made ae 

| “stating his account with the estate of Virgil he adsits that the 
item of (871.72, charged ase interest, is proper. In Kelly v. Federal 
Improveuent Co., 192 111. App. 20, 1t was held that where the parties 
after full and fair opportunity for examination have adjusted and 
settled their mutual acecunts, the law will not permit this settlement 
to be reopened except for clear evidence of fraud or mistake, and the 
burden of proof rests upon the party ascerting it. ‘See alse The 
State v. i, 0. KR, Co., 246 Ill. 188, 241, and Dean & Son v. Conkey 
So., 180 Til, App. 162, and cases there cited. The court, in etating 
the account, properly charged interest on the open eccount of Horace 
Brand with the estate. 

Counsel for “Norace next questions the allowance of interest 
on the Erna teddies claim. When Virgil died he was indebted to 
Armin and Mre, Zeddies in amounts agreed upon by the administrators, 
Mee. Zeddies' claim against the estate was allowed for (15,776.75, 
The order allowing thie stated she had no other or further claim 
againet the estate, and she never filed or asserted any other claim, 
Her claim was paid in full by January 13, 1928, but Horace continued 
to pay to “his daughter, tires, Zeddies, an amount tetaling $2670.89, 
This was done without the knowledge or approval of Armin, and Horace 
agreed to repay this amount to the estate, together with interest 
thereon, Ne wae properly charged with this amount by the Prebate 

_— sourt, The everpayment to Mire, teddies wae from estate funds. No 
relief is sought against her. Horace apparently now claims he ie 
entitled to an additional eredit of interest based upon these over- 
payments to Mrs, teddies, but an agreement which ie in evidence showe 





‘a , 
* 
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otaten e'itgat? St bw eowre! to Pnwoses nego wild OF aa Beveled 
aimiA tadd galteeupex atertA of Javooon to tasmevats 2 Settindwa sewto® 
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Devtgia alath tasaveod of to aatbvow eM? oF MOIS IBA Pegs a gaiten 
bessts Faveods ha Sodutitunos alAT .Yoamsit 40 Yqoo a show baa tt 
a bat Yoamtd eoarod okdw Feeuvced etd? nT Veoliuhy 6a nbeWed 
itt Vaile” Wetenh td’ til Yo adhe te A Fe he 
LareBet .v ytfei aT .xeqony of Pheretal as boyradd SVLIVeY to med 
neltaag off sxstiw tat Sted eaw tt .Of .qyA ITT Ber | 6D dnemevoummE 
 bna beteutha ova nelfantnere <ot ytineveqae Gin ban ftvt Sette 
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ns ae ee ae eee ed 
 gatvate at Moo bat Jette ckedy senso Bas ,S6r Legh stir ber ,.92 
ee 
| | etarew ot: Nai 
| geetetat 40 sotevolta add knottseup ten Venter 46Y Leaked 
gy bebW hk? Sau" al Went Legety Wau” Jide bOtbbua’aaAe Gad 
erorontetntabs sity W mous Seerga sfnvons at aotbhos Joa Bea’ nheeh 
av .Btv aft cot Deworle aaw stetee oft Pantnya miaTe “absbbet Lh 
“phelo weitdrst 46 redto on bad ade bodate etdt & ba oat 
nial tite yk Berreose a6 betty “even ode bas ‘evaded bay’ raivthih 
honnttaoo seavell Sur ,ee0r Ex qenwnet ye ‘feet ar Stay daw mas 
28 ,0%aS% gatiated tavoms ma ywetbbet vert yxorMguab Bhi Of aa 88 
soaiok hoa alec Yo Tavonqaa 40 9) polwont Sat dundt iv bho wav eteT 
feevernt Ho tw teddsgod \etacae bt of Pnwowe bhatt vaqor of boorga i 
stadort ef? yd tauosa atdy ddiw Bograce yireqoag ——— 10 
‘pe lebawt otatas mea? ahw setpbes ‘leak 6% dnenys ‘txioo 
“oh otf omtate won (ithereqqn sontbl © iat tentang a ae 














bt)" 







| 
{ 
: i ait i a ———— 1 niet, Pee oe =. file , 


whe 

thet Horace individually, and not in hie representative capacity, 
agreed to repay thie, There is nothing te indicate that thie inter- 
eat in to be paid out of the Virgil Brand estate. hen Mra, ceddies' 
claim wae allewed all details, including the amount, were fully 
known, It was @ liquidated account. There was nothing in doubt as 
the amount of the overpayment. The court properly denieé Horace 
interest on the overpayments to Mra. teddies, 

It would unduly lengthen this opinien to ge into all the 
evidence as to the items entering inte the final aceount and the 
allowance of administrators’ fees, Kost of the matters have been 
agreed upon by stipulations. It wae agreed thet the so-called eosin 
journals of the estate are to be photostated and divided; that the 
tazes on the Hoosevelt road and Chicage avenue properties are to be 
prorated and the proceeds divided; Armin's account on the Aoosevelt 
road property to be approved; an amount of $1609.54, taxes on what 
is called the Hoosevelt road and Washtenaw avenue preperties, is to 
be charged against Horace personally. Horace was to be charged with 
the amount of the Zeddies overpayment and interest, The final order 
of the court was to be considered as the account of the co-adminis- 
traters, the only question being as to the acouraey of the figures, 
and the method of setting forth the respective accounte, employed 
by the court, was aeeeptable te both parties. These etipulations 

Fe conclusive ané binding upon both administrators and will be en- 
fercea co long as they are not unreasonable and against public 


poliey. PFleno Foundry Go. v. Industrial Comn., 56 111. 186, 186, 
and People ex rel. Stead v. Dist., 263 111, 479, 





492. 

Ag @ general rule co-administraters are entitled te equal 
compensation, Hartin v. Central Truct Co., 527 Ill, 622, 637. Here 
the Probate court went into the character of the services rendered to 
the estate by the respective adminietraters and was evidently of 
the opinion that their compensation ahould be in equal amounta. The 








~e- 
{Ustomges evitete@osergs? ald ot son. daa ,Yllaubivibsl seatell tadd 
-teta, sidd @add efsethat et gaidton a! exetd .elds yaqeuve? beeuge 
'yolbhos ,2c8 aed! ,otateo Saas Itgul¥ el? to ano Bing od ot..ah dae 
elist stew .tawoma ef? guibuiont ,aliate® Ila bowolla sav alalo 
aa tdwoh at yaideca eaw exedt .dnwoosa Astablupii a asw dl wont 
sasrel Satned ylueqerg tiweo ed? .dnemyequeve edd To Inwoms ed. 
j hie -20Lhdes .e1M OF ateemtaqieve edd ae Seoxedsh 
eat Lia erat op Of neluteo ali? aadtgaedt ishaw Binew J2 6 cos! 
eet tai Snyooca Lani? ede ofa yntsagae ametl eft of sa eonebive 
nesd evad a1ei%am add to tact seek ‘atoteitataimds 10 womawollio. 
phos Dellaaror olt adj. Doexye sew TI sanoivaluqlte vé noqu beotge 
| etd. Fudd GRebtv,d Sas Detatactadg o¢ ef ore states od? to elaawel 
o¢ ef via eelticqesq sumteve egactdd baa Deow tleveaced eds mo agnat 
thevenoch ssid no tauooes s‘akeiA pbebivts abeasot ori? baa hetarewg 
 Gadw #0 nexed .25.00GLE to taweme ae jSovetqgs od of Wasqenq daot 
et af welizeqou, suaeve wanetdan’ bas baat Gleyesook of? belise af 
dtiev beguado ed of saw esate .yiiamoe1eq sosxel Sentege Segiade.ed 
qeirto Lantt edi @revetat das tacaqaqueve anthbed efit Re davons eit 
~atalmba-oo @c3 to Sayosea ody as beteblengo od of aw txmee oft to 
.sewett sod Yo yaats0s al? of as gaded cettaoup Ylne edt \atotadt 
Hayolqms Lasauc osa aviseeqae: edd as ⁊o ⁊ gaitsea to bodten ed? has 
asolvalughta saed?. .settaag dted of eidatqooes.paw 
ome od Iftv boa etait ee al ncn 
«Ok iduq teetage dae eldanceaemas.toa exe Yedd as gaol oa Leow? 
OOL OAL ,4f5 088 . qed aleteubal .v .00 wahnuel eealt -.yotleg 
(00h LT 628 yt enameled ansant — — 
—— 
laupe of Belsiias ete s1esexteainimha-oo elvi Jatency & ae. nena 
ers .V8S 890 .L61 985 ».92 sama Jantged).¥ s18ue noltaraeqneo * 
—E beobav⸗ aso xaes edt le anfcanada: — ————— a 


\ 






64 
~@eourt, however, found that Armin hed agreed to accept {6090 lees in 
administrator's fees then licrace reeeived and fixed the amount of 
the fees accordingly. 
The eourt properly taxed the coste of the litigation segainest 
“Berece, It was in evidence that he haé pursued dilstory tactics for 
years and was respeneible for virtually all the delay and expense in 
eonnection with the prolongation of the prebate proceedings. Al-~ 
though he had stipulated net to appeal frem the ordere of the Frobate 
court but to accept them, he dieregarded the stipulation and appealed 
to the Cireuit court. Although it is argued on hie behalf that the 
Cireuilt court sustained his objections to many of the iteme found by 
the Probate court, an examination of the record does not support 
this, His counsel cite only four items in which it is claised the 
Cireuit court found differently from the findings of the Probate 
court. These amounts total about 42000, but examination of each of 
them shows that even with respect to theese items the Cireult sourt 
virtually found the same as did the Probate court. 
This is a ease for the application of the rule that where 
the litigation is carried on for the benefit of an administrator 
personally and net for the benefit of the estate, 1t ie preper to 
— tax the costa of the proceeding ageinet him personally. Jdwerds v. 
Lane, 331 11, 442, 451-52, and Felsenthal v. Kline, 214 T11. 121, 
It cannet be argued that this litigation was for the benefit of the 
estate. if Horace loses the estate leses, whereas if Armin should 
prevail it is for the benefit of the estate. 
—* The trial court had before it evidence of the time oecupied 
and work done by counsel for Armin in following thie appeal. It ean 


better determine the reasonableness of the fees than ean a court ef 


review. Martin v. Central Trust Co., 327 Ill. 622. 


and of the Gircuit court 
In the brief for Horace the power of the Probate court/to 


examine inte and determine the differences between the adminietratore 


-a- 
al gavel OOCSE Foeena of Bootgs bad nfo Sade Snvet ~tevever ,sim]ed- 
Io tawotin off Hext? ne Bovioost vietie wm: > 
<Uigatbroees west edt 
daminge molvagltil ed? te sta00 oft Bexat? Yfteqouq tase edF 86" 65 /% 
not soltest yrorsftS Seow Sad of tad? sonetive nt sav oT — 
at saseqre Sas yalob od? Ife yfeotety 40% oidtenoqnor daw Sna wiaey 
~fA ,egalbeecetq etadeta sd? to noltagaolen: et? ditty woltountes ~ 
atadorl edt to areixe off wort Lasqqe of fou betaluqite ‘bad of sguodt 
HoLaeden bre noltalsuqite eft Sefisyeteth od .medd sqedon of Yud sawee 
edt tad? tladed afd mo bewgta ot $f MguotetA {¢awee Fine1tO ede oe 
yt hawt weer t ed? Yo Yuaw OF enoltestdc aid bontatass tuw00'thvo4tD 
Jroqane fon se0h brooet ad? To mofvatianzs aa .d1N0d btadort ont 
eof Deatelo ef $2 doldw #f% awed «wot yleo effo SeemHos BIN” Yala? 
etadort eo Yo agnthar? ef? mott YLonerstt25 Save? taboo #lwoTld 
10 ross le Helfantaaxe Syd OOS’ suede Lavoe ataioms SHedT 24800 
fuses tiseatd ed? omet? soeds OF Booqest dviw neve Sad? swede mond 
| , .7 2008 otadosd off BL ae oman off Sawer ELlautaty 
eretlw gadt ofux off to sergnsiiqgs ef? WOT sea0 es Of atAT OO 
totatsaininbs na te FPtened edt 40% no Beltisd ab nolsagisht ede 
et toqory af 22 ,statae mit to trtened — ae 
Lv tbzawh qr fended mid taathga gnbbooseet eae te atees edt kat | 
of8f ,12T a .80-10) uae LTT 18t (eegd 
ett to gitaned si? sot saw noteegtvlt etd? ¢adt deugra’ od donnac’st 
biverte winch IL sseusdw ,eeRel erated et genet esaxot tI. oFatG6 
-obates ad? Yo sitemed ot cot-at £2 ctarsra 
heiquese emt? eft to gonebive 22 e1eted bad Payee Lalas acct 
neo 92 ,teeqqe ofd¢ gntwelfot at siaxA 10% Loemwoo yd enob arow. Bae 
Qo Puveo s nee nade Soot off Yo seoneldanosaes Of enlmveted «etted 


2888 .11 TRE ,.9D sayy Sevag) .* giseal © .welver 
Z pa) 
yep. gtuou st ate te xeowoy ele eoaxol set Retead ete — 2 Ne 8 


erolavgeiniahs ei? aeeweed a edd onleveted dna ¢ 


ay ee ne eee ee 









-6= 

is questioned, To this it may be said that both of the administrators 
stipulated to submit to the court a11 questions arising out ef the 
administration of the estate. Moreover, it is the law that in a 
situation of this sort the court will proceed substantially as a 


court of equity to determine the rights of the parties. In Trego v. 
in 
Estate of Cunningham, 267 711. 367, 374,/an opinion by Wr. Justice 


Cartwright, it wae said, "To avoid the delay, expense and embarrass- 
ment in the settleaent of estates by requiring a resort, in the first 
place, to a court of equity, it will proceed in a case of an equitable 
character as though a bill in chancery hase been filed, and will hear 
the evidence, investigate the claim and apply equitable rules in 
deteruining the Judgment. (oore v. Rogers, 19 111. 247; Dixon v. 
Buell, 21 14. 203; Heward v. Slagle, 62 14, 336; Yadeworth v. Connell, 
104 14. 363; Thomson v. Black, 200 44. 465.) In such a eace the 
court will act substantially as a court of equity, dieregarding mere 
matters of form and locking to the substance to determine the 
equities of the parties." | 

Other points appearing in the brief for liorace Srand have 
been considered. We find nothing in the record which justifies a 
revereal, 

The judgment of the Cirouit court is affirmed. 

JUDGHENT AFFIRMED, 

O'Gennor, P.J., and Matchett, J,, concur, 





| | - 
sictetsetninks ony Yo dtod Secs Biaw sd yaw PL lsd.0T , Desodtenupoat 


~ 
odd Ie tue gataivse eaotinowp Lie Sxvee edd et diedun of betsingttn = 


a nal tedt wal edt of 22 yrevectoH .otatee od? te noldawetniada 

cos + 44 ELintinagaden bescong LLtw dawoe 909 d20— eld? to ao to aud la 

oY al. westuaz edt Ye esdatt edt salenoted of lupe Yo-tuvee 

oe ta aun 04 VO nodnige sa\.e7G POS LET TOS) — — e 5e— — 

-seatisdae bee saceque ,yeted ott blove of , bien saw th ,tdghawesad 
fault odd oi ,cu0ne4 » yaluteper Wd eetases to taeuelteen ent nt deen 
‘eidat iups ae te eed a ai beeonte ILiw 22 .etlupe to -daw00 se of ,s0atg 

1as6 Lity baa ,beLt? seed aad yunonsio nb Lkkd s dyuedt ss-wetodueds 

nd telie oidsd tuo Tags bas ——— 

-V goeiG (98s 413 OL ,anegeh iv et90t) csbuenghet.edd gatateteead — 

——— ·r stuowsba¥ (886 .b2 &8 ,ofgals .v duawell (208) 6218 At⸗ev 

esd 9060.9 dou mI (.dä.bt OOS, dnetE srinonmodt 1008 wbeeOr 

o19m gatiragorste .yeinne Yo taune # a8 Yilettnssades tos sitw seme 

ed? endwieted of coastadon edt of gnitdeol bas mag? ro areraas 

pred. hetsh onbyetceeh:teleh sake · is Wi ‘ 

@ goltsden|, dole bucvet aff wi gaddion Salt.o% . “sbemebtenoe need * 

et Socom a — rose ar «et tee Ak y K a 

_.  .DewETRa as Pawoe gtyesl9 ad¢- 20 gnemgbwt sdPo wits kent 

canara FUSMAGOW 2 oft ae ie’ fhe OW OPES demas 

ao aan sftedotas bas (44.4 sonnoot 

tie , wheel 6FSRce ol — 

Satin WY to FfPtaved eer er wee — — 


— 


Ser hy Aa te EPs — — 2 ‘eR Ts V2 Re Sere: ARSE n Hee 


~ 














8 ‘if ea [int at aievd got Lona yf eneh aioe. 
ysis RK eae ma ect wit? Qo veer Mahoteen My oxtaveteb tetted 
me ears, 


; 
Se =i Sma. Tove call. kat 
PRLS + Peres FE) at %o Bas oe. 
Tvyoo FLVo i Y. Oi 1G DHS 
Toth Bywes aspoeee ede 4 Wi? HOsRdN-AOT Takes * 


J we \e '* * 


eh * Sand waste? * — * 
—Co wee eta ter otia Ree coaneae secre 4 and weit ‘airtel mh 
— — * — — iste * 


40760 


ROBERT L. SIMONS, f6r © 
NATIONAL BUILDERS BANK 
CHICAGO, 


Apye 





Ve 


COOK COUNTY, 
UNIVERSITY STATE 


i —59 3 it * TrA. 6 6 8* 


MR, PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT. 
This appeal by the University State Bank, garnishee, 
in the consolidated causes Nos, 40759 and 40760, raises but one 
point. it is contended that the court's power to amend the 





order of December 8, 1938, or to reinstate the judgment by con- 
fession of November 23, 1938, could not be exercised to the 
detriment of a third person who had acted upon the faith of the 
record, and that the garnishee had a right to rely on the record 
of December 8, 1938, and on the basis of that order to pay out 
the funds in its possession, It appears from the record thet 
February 16, 1939, the day on which the trial court entered the 
order reaffirming the original judgment and entering judgment 
against the garnishee, counsel for the University State Bank 
called the court's attention to the fact that under its contract 
with Simons, made at the time the account was opened, it was provi= 
ded that in the event of any garnishment affecting the account the 
bank should be entitled to compensation, and a request for the 
allowanee of fees to the garnishee was made in open court, The 
court acceded to this request, and after a conference between the 
attorneys for plaintiff and the bank's counsel $100 was agreed 
upon. This amount was allowed and a credit was taken by the bank 
to that extent. By this proceeding we think the bank is precluded 
from appealing from the order awarding plaintiff a judgment fer 
$1,414.19, instead of $1,514.19, because under the well established 
rule a party who consents to the entry of an order, or accepts 

the benefits thereof, cannot appeal therefrom, (Boylan v, Boylan, 





»THUOD HHT YO WOINIGO SHT GHANVIING GMAIA HOTTSUL OWIdIeaeT , A” 
yeodeinzsy ined otsté YitetevinU edt yd teeqqs ebdr 
ono Jani aoater .OdTOA bus QRTO ,20l seauso bessbifoaaed edt at 
7 edd broms of sores at dusoo edt sat bebaednoo et $I * stitog 
Aoo yd ‘Smomgbut eis etetemtet ot 10 BERL 8 rodaooed to cabz6 
exis ot beatotexs ed tom bLuoo e8EOL s roanovon ‘to ‘noteeet : 
eit to dist ord aoau bedos bed orw moet9q build 5 “to ‘nem ‘ob 
biese: es mo yLet ot tdgia s bas sorte tntsy eid ‘toi? hee « 10087 
tuo Yeq od robo tadd to etesd edt mo bas BERL « § ‘reduooed “40 
tals biooet eid moxt etseqqs at “ssoteaeezog ett ak ebiurt ext 
ot beteine duos Lata edt ito baw m0 yb eid kee ot wide’ 
jnomgbut gatiesne bas — Iantgtxo orld pilonhYiset ‘tabuo 
Ans ofst2 yttexsvinU edt tot Leenwoo oeue arues onl Sentsys 
toaxdso0 asi sobus teas gost odds of notinetss 2! ano09 ods — 
~itvo1g esw tk ,beneqo asw trrescos ont omt exit ts ebsm ceutonte — 
et tauooos eft gatd os TLꝛa dnouale bitsy Yas to jneve exis ak Sarid beb 
ems tot geexpet s bus ,moldsemeqmoo od beldtine od bLvorde unsd 


edt ,Jiyeo mego at obsm saw sede Laisy odd os J ‘to — 


* 






oft moswted somets noo s nodts Bris <deeupet ends ot bebesos ‘fmos 
bosigs esa COOLS L[e2emwoo e'insd oft bas Tiidaisl¢ 10 eyoutotss 
wed edt yd meted esw tibevo » bus bewolls asw dnuome eld? ,.noqu . 
bebrloetq at Masd odd antdd ow gatbsesorg eked ya -tnetxe tacit of 
tot tnomgiut s tittatslq yatbiswe wobio eds mort gatiseqqs mort 
bodetideteo ifew edt sohaw eawsced .CL»tle.l¢ to bsesant eCL PLA Le 


. adqs0os to ,t9b10 ms to yiime odd of etnsanoa ofw YSisg 8 aad te 
alvod .v usivol) ,moxiersdt Iseqqs tonmso tenet es itened ait 


. — 






on Dee 

349 Ill, 471, 473; Reardon v 189 Ill. App. 3, 133 
American Radiator Co. vs. Walker, 276 Ill, App. 150, 248.) Furthere 
more, the contention of the bank that it had a right to rely on 
the record as of December 8, 1938, and on that basis to pay out 
the funds in its possession is not borne out by the facts, The 
bank actually refused to pay out the funds garnisheed until Simons 
had deposited government bonds for $2,000 as security, The bank 





was not injured, and is in no position to complain of the order 
entered, 

All that we said in cause No. 40759 with reference to 
the validity of the judgment upon which the garnishment was based 
is alike applicable to this proceeding, Therefore the judgment 
in garnishment against the University State Bank should be affirmed, 
It is so ordered, 

JUDGHENT AFFIRMED, 


Seanlan and Sullivan, JJ,, concur, 


veL gf ogm .LLT OSL .telupanvoY .v mobased yfVh g{Vh ,L1T QAE 
— (.605 ,ORL squad -ffT ONS , rafal .¥ 109 sotatbes meotzems 
mo ylex of ddgit a bes $k tadd Anad. edd Yo notiass, eo ond -9St0m 
uo Ysq ot etead dat} m0 bas See 8 retatesed ta. 4 “drogen os 
exit So nt va aus eaxod Jon eb aobatObnog att gh aha od 





ccomte {ait booting ehiun odd suo yx of heutttex yLfaston nad 


dsied oclT Vitec 2a 000,S% tot ebnod temrevoy betteoqed bart 
Se eee ee te 

, oa ion . : ¢ wi Iscqgn uket .betesae 
— bkneew Fads eR" OS mE 


boesd asw $riemlcinray of? dotdw noqu Inemgbnt ond ‘To Ye tbtlev add 


sbouiltts “od Biverde anced ess 2 —— ois aie. 
; buenos oft o lo jp@RMATVta Topage 8 ey ees tel Das —— 


E wae @ tad? to elasé edt mo bas aS 7, odes od hod 


| 
‘ wil setae yuuoe Lait? eds iw oo Yah off ,CF OL OF pi 
9 — D — wphe, Lagkgive ot peta Tees: teh10 


ody wo Losnwoo ,seralning ong Senkaga 


ietines & a yo" of? of aottnetisa 2! tenes ont heliag — 


-tvetg @aw $2 ,honeqo now darpods ocd ott oft te ohem gntomte Aizw 


| eat . PxiKe ‘tis tawuletosrey ya to dmeve edt ak Sads bed 


10% woe a ,soisvennpqaea of beltivtae od bigeda gaat 


J mis ⏑ — Se eyed “Tre "oo Te here ev ee eas alts of Debeoos Janes a § 
maa cev VOLE Loammoo c'uned aft tna 


*F , Ss — ener eß : 20 
Lets Mis HeWOLLA BEY CRONE eat afloQy —J 


his Lex nad ed? mated? ow guthbeosenq fact of ie 
pes?) Dencure anh ‘*htntela potiysee gebto of9 gieTh pet ieeqgs seek, 
bupngiideyas Lie at seh ewvaoed .Sleiik * 30 baed yams — 


is * 
J ut? 


ty ie? ct } May ars 
‘ raeal yog. — he St é Pee eee 





Go nt 6bam sew andetetey eld of veo To eongrelie 





So 


— 


is 
‘ 


* 
J 








41186 


ANNIE C, OLSEN, | / 
Appellant, 


Ve 
EVANSTON BUS COMPANY, 


a corporation, m 
- Appellee, 





MR, PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT. 
Plaintiff sued in tort for damages arising out of an 

injury she received while a passenger on a bus operated by defend— 
ant, At the close of plaintiff's evidence the court allowed 
defendant's motion for a directed verdict in its favor and entered 

qn accordingly, Plaintiff appeals, 

i Tue injury occurred on the afternoon of January 26, 1939, 
in Evanston, Illinois, Plaintiff, then 65 years of age, boarded 
one of defendant's buses at the northwest corner of Dempster street 
and Chicago avenue, in Evanston, Illinois, The bus was operated by 
Raymond E, White, who sat in a seat in the front end and acted as 
motorman and conductor, While the bus was standing still plaintiff 
entered the door, handed White a one dollar bill for which she ree 
ceived some change and tokens, and after depositing one of the tokens 
in a coin box at the right of the operator in the front of the bus, 
she faced toward the rear to look for a seat, The door of the bus 
was closed by White after she entered, The bus had an aisle running 
toward the back. Immediately to the rear of the operator on each 
side of this aisle were two seats facing each other which ordinarily 
afford room for three persons, Toward the back there are seats on 
each side of the aisle facing the frent of the bus, All the seats 
were occupied with the exception of one or two on the front side seat 
on the west (or left) side of the bus, just back of the opérator, 
There is considerable conflict im the evidence as to what ensued, 

Plaintiff testified that she was about to take the only 





sua HOTaMAVA - 
etolisitogioo & 
el Teoqeh dad 


#THUOD FHT TO MOIMIGO FHT quasvrazc cua aorreaut burerean i 
ng 20, Juo.gatatis eegemsd 102 stot at bows iaatata 
-busteh yd bsietego. and 8 Mo asacoasad 8 oLtriw be sheget sep. Yawpat.. 
 bewells Janos, exit somebive e'Iitinisl Ie, seolg, ot ta tes 
besesae bas tovet ati ai satbuey bejoorth s rot notion & att: sbasꝰ 
eeiseqqs NaIA ——— — 
eeer 20S yiennst to moomtesis. odd ao beviw990 yuwjal ent 
bebtsod ,9gs to exsey 2a neds etitiateli .elonil{l ,motensvi at 
georte t9eseqmed to asat09 Jeowds tom edt ts sennd 2) sRAbaryeS. 8, ime 
Yd bessieqo 2ow eud.edt .elfoati{l ,mojeusva at ,ouneve ogsoldg bas, 
as besos bas bao dmoit eds at Jsee s at tse onw ,otidW — 








eud oid to dnowt odd at totsieqo edd To tuigis edt ts J aioo s mt 
eud edt to. z00b ext etse2 s tot Aooſ ot te9% odd buswod beost ore 


gaiinus: olaits as bed exd eff ,bsietme ede retis ofidW yd boaolo esw . 
siege ao toseteqo edd to tset odd ot yledatheaml ..daosd edd baswod 
yiiientibio dotnw sete dose gutost etsea ows ot0ew olals elds to oble 
mo etsee ota otent Aoed edt haswoT ,enoaseq semlt 16% moor biotis 
edsee edd ILA and odd to tmort ond gmtost ofelts oft to shile dose 
tsee eble dmoxt odd mo ows 10 eo To moltqeoxe edt dtiw betquoso e1ew 
——— ot to Aosd teut eeu edt to ebie (Stel 10) seow edd ao ⸗ 
sbovenoe tanw of es eonebive odd at tol{tnoo eldareblenos at —— — 
yine eid saad of duods asw onde tant pethianed uateta * wit ; me 





—J 9 ol ee Ae 


2 

vacant seat available when the bus started, Her counsel then pro» 
pounded this question and she answered as follows: "9, Did you get 
seated in that seat? A. No, I didn't get seated because the bus 
started up and jerked and threw mes" Mr, Lister, counsel for 
defendant, objected to the answer as being a conclusion, and suggested 
that the jury should determine whether there was a jerk from her 
description. The witness then added: "Call it a bounce then, It 
was a bounce more than a jerk. It bounced up. Q+ Describe this 
motion which you say is a jerk, as near as you recall, A. Well, I 
was just going to seat myself in the car, when the car moved up, 
bounced up in the front, and it threw my head foremost against the 
heater and I lay prostrate, there. Q. Do you know where the car 
was when that happened? A. I thought it hadn't gone very far from 
Dempster street. That is the best of my memory," 

On cress<examination she repeated this testimony in sube 
stance as follows: “There was space for two more passengers, on the 
Same seat. When I saw that situation, I turned around to sit down 
and just as I did so the bus started up with a jerk, The bus had been 
standing still at the time, That was my impression from the jerk it 
gave, I couldn't say definitely that the bus had not moved while I 
was getting my change, because I wasn't paying very much attention, 
only getting my change and my seat." In the course of the cross= 
examination she also sald: “It is not possible that I might have 
fallen from the ordinary motion of the bus, I couldn't have fallen, 
I have traveled too long and I never had trouble, and I have traveled 
them a lot of times since," 

The operator of the bus, Raymond E, White, was called as 
a witness by plaintiff for cross-—examination under the statute. The 
court, however, refused to allow him to be cross-examined under the 
statute, and plaintiff's counsel thereupon examined him as plain 
tiff's witness, He presented an entirely different version of the 
occurrence, and said that the bus had traveled substantially a block 


from Dempster street to Hamilton street on Chicago avenue, and was 


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‘Baw bus gelmtove oysokdd a0 deowe easier aaitan ——————— o% " 





~ 
about to come to a stop along the curb when he noticed plaintiff 
lying on the floor beside him with her head toward the front of the 
bus. He had not observed her after she paid her fare and walked 
toward the rear of the bus in search of a seat, and did not know how 
far she had proceeded, He testified that after she paid her fare 

he "got the car moving in the middle of the block, about fifteen 
miles an hour, and as he approached Hamilton street to make a stup 
he passed through some snow along the curb and gradually brought 

the car to a stop. He did not notice plaintiff as he was pulling 
over to the curb, but about fifteen feet before the bus stopped he 
observed her head on the floor of the bus alongside of him, He testi~ 
fied that as he ran into the snow next to the curb, “the bus made a 
very slight movement," which the witness was unable to describe 
further, but he said definitely that this "movement," which he was 
unable to deseribe or account for, took place just before the bus 
came to a stop and just before he noticed plaintiff lying on the 
floor of the bus beside him, 

Plaintiff's complaint contained a general allegation of 
negligence, and it was also averred that plaintiff was in the exercise 
of ordinary care for her own safety, Her evidence on the latter 
proposition was clear, She testified that she had taken hold of the 
stanchion or bar in the bus as she paid her fare and then proceeded 
slowly toward the rear in search of a seat, There is nothing in the 
evidence to indicate that she was not at all times preceding the 
accident in the exercise of due care for her own safety, The court, 
however, was of opinion that there was no evidence to support the 
charge that defendant had been negligent in the operation of the bus, 
and therefore directed a verdict. We think this was error, The rule 
is well settled by a long line of decisions in this state that the 
court way not weigh or disregard the testimony of plaintiff or any 
of her witnesses in passing upon a motion to direct a verdict, but 
must allow the case to go to the jury if the proof most favorable 
to plaintiff tends to support her complaint. (Libby, McNeill &— 


3 


* 


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wes 
Libby v, Cook, 222 Ill, 206; Fronskevitch v. Cy & Ae Rye Cos, 232 
Ill, 1363 Reiter v, Standard Seale Cos, 237 Ills 374s) 


Plaintiff's testimony indicated that the bus jerked or 
bounced just about as she was to take her seat, and the operator of 
the bus testified to the slight movement of the bus just before 
plaintiff was thrown to the floor, Whether it happened at Dempster 
street or later and the manner in which it occurred as affecting 
defendant's liability were questions of fact for the jury to deters 
mine, but under the well established rule there was evidenee for 
the jury's consideration and the court was not justified in directing 
a verict for defendant, thus invading the province of the jury in 
passing upon the evidence, The rule is well set forth in the recent 
case of Russel] vy Richardson,et alg, 302 Ill. Apps 589, where, as 
here, the accident resulted from a sudden jerk of the car, The court 
there said (p. 592): “The rule is that negligence and contributory 
negligence are questions of fact for the jury. If the matter is open 
to a difference of opinion, the jury must pass upon it." 

Plaintiff's counsel complain of the ruling of the court in 
refusing to permit the crosseexamination of White under the statute, 
If plaintiff wished to bring iihite within the rule she could have 
joined him as a defendant and thus she would have been entitled to 
crosseexamine him under the statute, 

Since the cause will have to be retried, we refrain from 
any extensive comment on the evidenee except in so far as is necessary 
to determine the principle question in issue, The judgment of the 
Municipal court of Evanston is reversed and the cause is remanded 
for a new trial, 

JUDGMENT REVERSED AND CAUSE REMANDED, 


Scanlan and Sullivan, JJ., concurs 


Pie iia. 
( ay 


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a sal — alae’ nas 


41206 
MARY MACIEJEWSKI, 












pec ee 







Ld 
——— 
eer 
*;. 


GUY A, RI HARDSON “and-WALTER 
» as receivefs, cteh, 


ing bgp ens lana 


/ aPPHAL FROM CIRCUIT COURT, 
\ coox county, 


2 





pe REA 5, 


——— 


MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COVRI. 
Plaintiff sued to recover damages for injuries alleged 
to have been sustained by her when she fell from a street car owned 
and operated by defendants, The jury returned a verdict finding 
defendants guilty and assessing plaintiff's damages at $7,500 on 
which judgment was entered, Defendants appeal, 
The accident occurred in the early afternoon of June 

25, 1936, Plaintiff was a pasgenger in a southbound Ashland avenue 
pay-as-you-enter street car, owned and operated by defendants, In _ 
alighting from the car at 48th street she was thrown to the pavement 
and severely injured, The testimony of the witnesses for the re~ 
spective parties and the theories with respect to the manner in 
whieh the accident occurred are sharply conflicting, It was plain- 
tiff's contention that as the car was approaching 48th street she 
indicated her desire to alight by pushing the signal button and then 
arose from her seat and walked to the rear exit door which leads from 
the body of the street car to the rear platform; that the car stopped 
as she reached the door; that she stepped out on the rear platform, 
took hold of the center handrail with her right hand, and was putting 
her right foot down on the step when the street car started forward, 
_ @ausing her to fall, Defendants proceeded upon the theory that the 
street car stopped at the safety island on the north side of 48th 
street, the regular stopping place, where two passengers boarded the 


car at the rear platform and one alighted from the front; that when 







<TMU0D TIVORID MORE 
«XTHUOD. X009 





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Zee 
the ear then started forward plaintiff was not alighting nor was 

she on the rear platform ready to alight, but that as the car moved 
forward and after it had gone about a car length, plaintiff hurried 
out of the body of the car onto the rear platform, and while the car 
was in motion fell off to the street onto the pavement at or near the 
north cross walk of 48th street. 

It is first urged by defendants that the verdict is against 
the manifest weight of the evidence, Several witnesses testified for 
plaintiff, and a greater number for defendant, and their evidence is 
so conflicting as to be irreconcilable, We have carefully read the 
record and find that at least two of plaintiff's witnesses corroborated 
her testimony and theory of the case, Defendants' witnesses, including 
the conductor, gave an entirely different version of the occurrence, 

It is not argued by defendants, and indeed it could not well be argued, 
that plaintiff failed to adduce evidence supporting her complaint and 
her theory of the case, The most that can be said is that there was 
considerable variance between the testimony adduced by plaintiff's 
witnesses and those who testified for defendants, This presented a 
question of fact for the jury. Plaintiff contends, of course, that 

an analysis of the evidence adduced upon the hearing indicates that 

it clearly preponderates in her favor, without taking into conside 
eration her own testimony, Defendants on the other hance argue that, 
viewed in the light of established physical facts, the record shows 
that plaintiff was not alighting from the street car while it was 
standing, which is the basis upon which she rests her case, and there~ 
fore they say that the verdict was against the manifest weight of the 
evidence, However, all the evidence before the jury indicated the 
eonflict in the testimony of the various witnesses and of the respective 
theories of the parties, and it was the duty of the jury who had an 
opportunity to hear and view the witnesses and determine their credi~ 


bility, to determine the facts from the evidence, the general rule 
of law applicable to circumstances of this kind is too well established 


anew 

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~~ 

to require extensive citations, and is well set forth in Kapella 
¥. Chicago Reilw Go,, 228 Ill. App. 528, wherein the court, 
quoting from an opinion of the Supreme Court of Illinois, said 
(p. 536): "It can seareely be repeated too often, that the judge 
and jury who try a case in the court below have vastly superior 
advantages for the ascertainment of truth and the detection of 
falsehood over this court (the Supreme court) sitting as a court 
of review," A reviewing court is not justified in invading the 
province of the jury in determining the facts, even though there 
_be a sharp conflict in the evidence, 

The principal ground for reversal, and the only one 
presented te the court on oral argument, is that the jury was 
improperly charged, The main criticism is leveled at plaintiff's 
given instruction No, 19, which reads: "19. It is the duty of 
common carriers to do all that human care, vigilance and foresight 
can reasonably do, under the circumstances and in view of the 
character and the mode of conveyance adopted, and consistent with 
the practical prosecution of their business, reasonably to guard 
against accidents and consequential injuries to their passengers, 
and if they neglect so to do they are to be held strictly responsible 
for all consequences which follow from such neglect; while the carrier 
is not an insurer for the absolute safety of the passengers, 1t does, 
however, in legal contemplation, undertake to exercise the highest 
degree of care consistent with the practical operation of its 
business and the mode of conveyance adopted, to secure the safety 





of the passengers, and 

resulting in injury to the passenger, if the passenger is, at and 
before the time of the injury, exercising ordinary care for her 
own safety." (Italics ours.) Defendants do not complain of the 
first part of the instruction, but they criticize the second part 
thereof, which charges the jury that the carrier "is responsible 
for the slightest neglect," resulting in injury to the passengere 


It is conceded, of course, that common carriers are not insurers, 


* 
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but are charged with the highest degree of care consistent with 
the practical operation of their business and the mode of conveyance 
adopted to secure the safety of passengers, It is argued, however, 
that by telling the jury that the carrier is responsible for the 
slightest neglect, the instruction not only unduly extended the 
application of the highest degree of care rule, but also correspond= 
ingly minimized and impaired the noninsurer rule, which is a limitae 
tion upon the rule of highest degree of practical care, Similar 
arguments were made in cases where the instruction was approved 
and the Supreme court of Illinois has on twe occasions held that 
instructions given in the identical language with the one in the 
Case at bar stated the law correctly, The first of these is Chicago 
& Alton Re Ry Cog ve Byrum, 153 Ill. 131, where precisely the same | 
instruction was given in a suit brought against a common carrier, 
including the language employed in the case before us, namely, “is 
responsible for the slightest neglect resulting in injury to the 
passenger," In commenting upon the instruction, the court said that 
it stated the law correctly and was properly given, citing several 
earlier Illinois decisions, Later, in Chicago City Railway Co, v, 
Shaw, 220 Ill, 532, the same instruction was given, and upon appeal 
it was charged that it constituted prejudicial error, However, the 
court disposed of the criticism made by the following brief comment: 
"The words in the instruction that are complained of are ‘slightest 
negligence. Practically the same instruction, with the same words 
complained of, was before this court in the case of Chicago & A, Re 
Coe Ve. Byrum, 153 111. 131, and cases cited on page 135, and the 
giving of the same was approved, We do not feel at liberty to over= 
rule what was said in that ease, and are of the opinion that the 
instruction stated the law correctly," 

In 1923, this court, in the case of Sczuck ve Chicago 
Railways Co,, 229 Ill. Appe 325, had occasion to pass upon the 
propriety of an instruction containing precisely the same language, 


abe 

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and after citing Chicago & A. Ry CO. Ve Byrum and Chicago City Rys,— 
CO, Ve Shaw, concluded: “We think the instruction is not subject | 
to the criticism made," 

Qur attention has been called to several appellate court 
decishons of more recent date where the instruction was criticized 
for the same reason now urged by defendants. (Webber v. Chicago City i 
RyS, Co,, 267 Ill. App. 605, General No. 358823 Otto v. Richardson, 
274 Ill. Appe 649, General No. 37026.) So far as we have been able 
to ascertain the Supreme court has never reversed or modified its 
views as to the validity of the instruction in question and we feel 
ourselves bound under the circumstances to adhere to the ruling of 
the Supreme court. (Waxenberg v,. Brown, 299 Ills Appe 225, 2343 
Hibbard, Spencer Bartlett & Co, v, C © cago, 299 Ille App. 
614, 29 N. B, (2d) 625.) 

| Criticism is also made of plaintiff's given instruction 
No, 13, which reads: “The jury are instructed that, while the law 
permits the plaintiff in the case to testify in her own behalf the 
jury have no right to diseredit her testimony from caprice or merely 
because she is the plaintiff." It is said that this instruction 
was Calculated to minimize and neutralize the rule stated in 
instruction No. 14, wherein the jury was charged that in weighing 
the evidence of the plaintiff and in determining how much credence 
was to be given it, the jury had the right to take into consideration 
the fact that she was the plaintiff and that she was interested in 
the result of the suit, and that the giving of instruction No, 13 
tended to confuse the jury as to how it should apply the rule, This 
instruetion is not a mandatory one and was approved as correctly 
stating the law in Lauth v. Chicago Union Traction Cos, 244 Ill. 244, 
wherein the defendants contended that it was misleading and confusing. 
The court there said, pertaining to an instruction reading, "'The 
jury have no right to diseredit his [plaintiff's] testimony from 
Caprice or merely because he is the plaintuff.' tie think this 


instruction as modified correctly stated the law and there is no 


wn pen 


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6 

error in the giving of it." Instructions Nos, 13 and 14 are differ- 
ent in thet defendants! instruction No, 14 tells the jury that it 
may consider that she is plaintiff in determining the credence to 

be given to her testimony, whereas in instruction No, 13 it was told 
that the fact that she is plaintiff does not authorize the jury to 
discredit her testimony from caprice, 

It is next urged that plaintiff's given instruction No. 25, 
which reads as follows, was improper: "You are instructed that the 
only care and caution for her own personal safety, in alighting from 
the car in question is such care as a reasonably prudent and cautious 
person would have exercised under the same conditions and circum= 
stances, before and at the time of the alleged injury. She was not 
required to exercise extraordinary care or diligence." It is argued 
that this instruction assumes that plaintiff was alighting from the 
car before and at the time of the alleged injury, thus tending to 
indicate that the testimony of plaintiff and another witness wes true, 
notwithstanding the countervailing testimony of several witnesses for 
defendants. This instruction is likewise not mandatory and we find 
that in e v, Chicago ways © 228 Ill. App.» 528, where the 
Same objection was made, the instruction was held by the reviewing 
court. to be unobjectionable, Counsel for defendant there argued that 
the instruction as given constituted an assumption that plaintiff was 
injured while alighting from the car, the same contention that is 
here made, The court pointed out, however, that "if there is any 
possible ambiguity in this instruction, which we are inclined to 
doubt, it was cured by other instructions that were given, ***," 

In the case at bar it may be said with equal force that if there was 
any ambiguity in this instruction it was also cured by the giving of 
defendants' given instruetion No, 23, which apprised the jury of the 
theory of the complaint with respect to the negligence of defendants, 
and charged the jury that plaintiff was limited to her right of 
recovery as alleged, and that unless she had proved the material 


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allegations of negligence she would not be entitled to recover 
against defendants, 

The remaining ground urged for reversal is that the 
damages awarded are excessive, and that the court erred in the 
admission of evidence pertaining to the question of damages. It 
appears from the record that plaintiff was a mormal healthy person 
before this event of the approximate age of 42 years, and was 
physically able and did all the necessary housework to maintain a 
home for four people, By reason of her fall she sustained a 
fracture of the skull, which rendered her unconscious for a con= 
siderable period of time and necessitated hospitalization on twe 
different occasions. She was confined to bed for a period of about 
a year after the accident, during which time she was up occasionally 
but not for any appreciable length of time, Since the accident. she 
has been unable to do any work around the house except for occasional 
cooking and has suffered from convulsions or seizures at frequent 
intervals. The accident occurred more than three years before the 
trial and these convulsions or seizures had continued up to the 
time of the hearing, She suffers from headaches and her health and 
physical condition have been impaired to the extent she cannot pursue 
her normal activities and has continuously remained under the care 
of a physician, 

Defendants say that the amount awarded her would be 
warranted only where the evidence shows to a reasonable degree of 
certainty that the injuries are permanent, and they point out that 
the expert witness who testified in plaintiff's behalf was unable 
to give it as his unqualified opinion that the injury was permanent, 
An examination of the record with respect to this phase of the case 
indicates that the physician testifying, while indicating that he 
thought the injury would be permanent, was rather hesitant in ex- 
pressing such an opinion unqualifiedly, but he did finally say that 


he thought the injury was permanent. From the nature of the case, 


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a reputable physician would ordinarily hesitate in making the flat 
statement that an injury of this kind would be permanent, but the 
tenor of his testimony indicates that he was of that opinion. The 
contention that the court committed error in the admission of evie 
dence relates to a hypothetical question propounded to Dr. Krol, who 
had been attending plaintiff from shortly after the injury until the 
time of the trial, The question propounded calls for an opinion as 
to whether the injury would be permanent, His answer was "my opinion 
is that it may be permanent," and after this was stricken, on the 
ground that it was of a speculative nature, plaintiff's counsel pro= 
pounded the question: "Doctor, without dealing in any speculatious 
can you give us your opinion as to whether it is or is not permanent 
in character? A. Permanent," The authorities cited by defendants 
do not hold that a docter may not be asked his opinion as to the 
character of an injury, but that he may testify as to the character 
of an injury as disclosed by an X-ray film. (Dooley v, Chicago City 
Railway Co., 166 Ill. App. 312.) That procedure was followed in this 
case, and we de not think it constitutes reversible error, 

Under all the circumstances, we do not consider the verdict 
of $7,500 excessive, 

We find no convincing reason for reversal and therefore 
the judgment of the Circuit court is affirmed, 

JUDGMENT AFFIRMED, 


Seanlan and Sullivan, JJ., concur, 


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40939 
HARRY D, HODGES 


Ap — 7— 


Ve 


CHARLES Ay 10 — “3 0 * Lay 670 


MR. JUSTICS SCANLAN DELIVERED THE OPINION OF THE COURT, 





Plaintiff sued to recover damages on account of personal 
injuries he sustained and for damage to his automobile, as a 
result of a collision with defendant's automobile in the inter= 
section of 83rd street and St. Lawrence avenue on December 26, 
1936. The jury returned a verdict in favor of plaintiff and 
assessed his damages in the sum of $1,500, Defendant appeals 
from a judgment entered upon the verdict, 

This case seems to have been well tried, as none of the 
errors that are ordinarily raised in cases of this kind are here 
urged, Defendant makes no point as to the amount of the damages 
awarded, Defendant contends that "the trial court erred in re— 
fusing to instruct the jury to find the defendant not guilty at 
the close of all the evidence as requested by him," because "there 
is no evidence in the record tending to show that at and immediately 
prior to the happening of the accident and injuries in question, 
the plaintiff was in the exercise of due care for the safety of 
his person and property. On the contrary, the evidence shows that 
the plaintiff was guilty of negligence which caused or proximately 
eontributed to cause the said injuries and property damages in 
question," and "there was no evidence of negligence in the operation 
of defendant's automobile." Defendant further contends that the 
trial court erred in overruling the motion of defendant for a new 
trial, because the verdict of the jury was against the manifest 


weight of the evidence. Upon the oral argument defendant's counsel 


admitted that his main point was that plaintiff's evidence failed 
to make out a prima facie case, He further admitted that his 





oTHUO ST %O MOIMIGO SET ouAaV IIS WAIHASE DIreUt +a : 


Lanoe16q to Jnwoo0s ao eogemsb xevooe7 ot bona uoausta 


& as olidomossss etd ot egemeb rot bas beats ese od —— — 
———— orig at — — e! Jasbneteb tw wotetifos 3 to tiveon * 


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* 
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rhs 20 — 


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40 


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sid tent bedtimbs teddwt of .easo otost amtaq 6 two osm ot 


22 

first contention was based upon the assumption that defendant's 
theory of the facts should be adopted by the court, In fact, in 
his brief he argues, in support of his first contention, that 

"the verdict of the jury in favor of the plaintiff is not supported 
by a preponderance of the evidence.“ This argument has no bearing 
upon the question as to whether the court erred in refusing to in- 
struct the jury to find defendant not guilty at the close of all 
the evidence, We find no merit in the argument that there is no 
evidence tending to show that at and immediately prior to the 
happening of the accident plaintiff was in the exercise of due care 
for the safety of his person and property, nor do we find any merit 
in the further argument of defendant that there was no evidence of 
negligence in the operation of defendant's automobile, Plaintiff, 
a physician, testified that he left Burnside hospital, located near 
Langley avemae and 95th street, in his automobile, about noon time, 
to make a call on a patient living near 62d street and Kimbark 
avenue; that he traveled north on St. Lawrence avenue and as he 
approached 83d street he was traveling on the right hand side of the 
street about three or four feet east of the center of the street; 
that he had his automobile under complete controls that he brought 
his car to a stop about fifteen feet south of the south curbing on 
834 street; that the view to the right and left of the intersection 
was clear, He further testified that he glanced to the right and to 
the left; that he saw no traffie approaching from the east, but that 
he saw a car (defendant's) that was then 200 or 250 feet west of the 
intersection and was approaching it3 that the car was traveling in 
the middle of the streets; that he then put his car in motion and 
proceeded to eross the intersection; that after he had traveled 
approximately thirty-five feet and had reached the center of the 
intersection he looked again to the west and saw the defendant's 

ear only ten/téet avey bearing down upon him; that plaintiff's car 
was then in second speed and he immediately applied the gas in an 


effort to get out of the way; that he then heard a loud noise and 


“Se 
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-3- 
that that was the last thing he remembered until he “was waking 

up on a strange emergency table in a hospital;" that defendant's 

ear had traveled 250 feet while plaintiff's car had traveled thirty— 
five or forty feet, Photographs of the two automobiles introduced 
in evidence show that the plaintiff's car was struck on the left 
side, just back of the front fender, and that the frame of plaintiff's 
automebile was bent inwardly about fourteen inches, Defendant 
testified that after the accident he found that part of the front 

ef his car was "smashed back inj" that the frame had been damaged; 
that "the whole body was wavy;" that his car “was damaged beyond 
repair." He further testified that he was traveling east on 83d 
street in the center lane; that the pavement was slippery and at 

the curb was full of water; that as he approached 5t, Lawrence avenue 
he was traveling about twenty-two to twenty~four miles an hour; that 
his car was equipped with an overdrive that becomes operative when 
the speed is in excess of thirty-five miles an hour and that the 
overdrive was not operative at the time of the accidents that he 

did not use the overdrive in the winter time (the accident occurred 
on December 26); that as he approached St. Lawrence avemue his car 
was in third speeds; that after he got to the intersection he noticed 
plaintiff's car; that it was then a few feet south of the sidewalk 
line, if there had been one there; that he did not know how fast 
plaintiff was going at the time; that there were no curbs on St, 
Lawrence avenue south of 33d street at that time; that when he saw 
plaintiff's automobile it was traveling in a northerly direction in 
St. Lawrence avenue; that defendant was then on the sidewalk line 
and he continued to look over the intersection; that the two auto» 
mobiles came together on the east part of the intersection; that 
plaintiff's car was then on the east side of St. Lawrence avenue 

and defendant was south of the center of 33d street; that when the 
two ears came together defendant applied his brakes and his ear 
skidded, the back end swung/toward the north; that plaintiff's car 


sert of caromed off from the front of defendant's car and continued 


on north; that the front part of plaintiff's car went over the side» 


e 
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4d 

walk on the northeast side of the street and over a retaining wall 
into a lawn, where it rested against a tree; that defendant was 

about fifteen feet from plaintiff's ear when he applied his brakes; 
that he did not see plaintiff's car slacken or change speed; that 
after the collision defendant's car rested practically in the spot 
where the collision occurred; that the rear end of defendant's car had 
swung around and the car was facing southeast; that defendant got out 
of his car and went over to plaintiff's car and saw plaintiff slumped 
over ———— Upon cross—examination defendant testified 
that when he first saw plaintiff's car he, defendant, was only a few 
feet away from the intersection; that at that time plaintiff's car 
was probably about ten or twelve feet south of the intersection; that 
defendant was then traveling about twenty to twenty-four miles an 
hours that from the time that he first saw plaintiff's car to the 
time of the collision he, defendant, traveled approximately twenty= 
five feet; that "the left front of Dr. Hodges' car came in contact 
with my car;" that at the moment of the impact he did not know how 
fast plaintiff was traveling, but that he, defendant, “must have been 
traveling very slowly;" that at the time of the impact he, defendant, 
was traveling “maybe five miles an hour," Defendant further testified 
that he had stated to a person who called upon him that when he first 
noticed plaintiff the front end of his, defendant's,car was just east 
of the west curb line and that he saw plaintiff coming there; that 

he was familiar with the intersection. John C. Ingraham, called by 
plaintiff, testified that he reached the intersection right after the 
accident and saw plaintiff's car leaning upon a tree in the front yard 
of a residence at the nertheast corner of the intersection; that 
defendant's automobile was facing west and "elose to even with the 
St. Lawrence curb line, that is the east curb line, extended across 
83rd Street;" that it had drizzled a bit that day but it was not 
raining or drizzling at the time of the accident; that 83d street 

is a four-lane highway and St. Lawrence avenue, an ordinary street 
about twenty-five feet wide; that there was no stop sign on Ste 


Lawrenee avenue as you appreached 83d street from the south, but 


ote ' 

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ane 
there was a light post or stop sign or something like that which 
had been knocked down on the south side of 83d street; that when 
plaintiff was first brought to the car of the witness he was uncon- 
scious but that he regained consciousness when about half way to 

the hospital at a point a couple of miles from the scene of the 
accident. 

"A motion to instruct the jury to find for the defendant 
is in the nature of a demurrer to the evidence, and the rule is 
that the evidence so demurred to, in its aspect most favorable to 
the plaintiff, together with all reasonable inferences arising 
therefrom, must be taken most strongly in favor of the plaintiff, 
The evidence is not weighed, and all contradictory evidence or 
explanatory circumstances must be rejected, The question presented 
on such motion is whether there is any evidence fairly tending to 
prove the plaintiff's declaration, In reviewing the action of the 
court of which complaint is made we do not weigh the evidence, = 
we can look only at that which is favorable to appellant. Yess v,. 
Yess, 255 Ill. 4145 McCune v, Reynolds, 288 id. 188; Lloyd ve 
Rush, 273 id. 489." (Hunter v. Troup, 315 Ill. 293, 296, 297. 

See, also, Mahan v.e Richardson, 284 Ill. App. 493, 4953 Thomason 
v. Chicago Motor Coach Co., 292 Ill. App. 104, 1103; liolever Va 
Curtiss Candy Co., 293 Ill. App. 586, 587.) 

Applying the law bearing upon the motion to instruct the 
jury to find for the defendant to the evidence, it is obvious that 
there was evidence fairly tending to prove plaintiff's complaint. 
“tx # * Before we can say, as a matter of law, that there was no 
negligence on the part of the defendant or that there was such 
contributory negligence on the part of the plaintiff as to defeat 
recovery, we must be able to say that all reasonable minds must 
agree that the defendant was not negligent in his acts or that the 
injury was the result of plaintiff's own negligence.‘ (Petro vy 
Hines, 299 111. 236, 240. See, also, Pollard v. Broadway Central 
Hotel Corp., 353 111. 321, 322, 323.)" (Thomason v, Chicago Motor 
Coach Co., supra, p. 110.) The jury were fully warranted in finding 


a: 
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6 

from the evidence that when plaintiff reached the intersection 
defendant's car was then 200 te 250 feet west of the intersection; 
that plaintiff exercised ordinary care as he approached the inter= 
section and started to cross it; that plaintiff entered the inter= 
section before defendant reached its; and that defendant, under the 
ecireumstances, was guilty of negligence in driving his automobile 
at a high rate of speed on a slippery asphalt pavement as he 
approached and entered the intersection, They were further justi= 
fied in finding that defendant traveled between 200 and 250 feet 
while plaintiff was traveling approximately thirty-five feet, 
Defendant's evidence shows that although he applied his brakes at 
the curbing on the west side of St. Lawrence avenue, the speed of 
his car was so high that the impact when his car struck the left 
side of plaintiff's car not only badly damaged plaintiff's car 

but damaged defendant's car beyond repair, and plaintiff's autoe 
mobile was driven, by the impact, into the yard on the northeast 
corner of the intersection, Plaintiff saw defendant approaching 
when the letter was between 200 and 250 feet away from the inter» 
section, and the jury were fully warranted in assuming that defend= 
ant saw plaintiff as the latter approached and entered the intere 
section in ample time to reduce the high speed of his car and thus 
avoid the collision, 

We find no merit in the contention of defendant that the 
judgment should be reversed because the verdict of the jury is 
against the manifest weight of the evidence, After a careful 
consideration of all of the evidence, including that bearing upon 
the condition of the two automobiles after the impact, we are satis= 
fied that the jury were fully warranted in finding a verdict for 
plaintiff. Defendant also argues in his brief that the verdict of 
the jury is not supported by a preponderance of the evidence, The 
question of preponderance of the evidence does not arise in this 


court, We cannot disturb the finding of the jury unless it is clearly 


against the manifest weight of the evidence, 
Defendant has had a fair trial and the judgment ef the 
Cireuit court of Cook county is affirmed. 
JUDGMENT AFFIRMED. 


Friend, Pp, Jes and Sullivan, J.,CONnCUure 


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41322 


I. 0. orar, 
Appellee, 


Ve 


CITY OF CHICAGO, a 
Mundeipal Corporation, 


APPEAL FROM CIRCUIT COURT, 
COOK COUNTY. 


307 T.A. ¢ 


WR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, cl } 

Pleintiff sued to recover damages for personal injuries 
sustained in a sidewalk accident. A jury returned a verdict finding 
defendant guilty and assessing plaintiff's damages at $1,100, Defend~ 
ant eppeals from a judgment entered upon the verdict. 

Defendant raises no point on the pleadings, Plaintiff 
Glaimed that he sustained certain injuries because the City neglie 
gently and carelessly permitted and allowed the sidewalk on the 
west side of South Recine avemie, at a point approximately six 
inchts, more or less, south of the south curb line of “est God 
streat and four feet, more or less, west of the west curb line of 
South Racine avenue, “te be ami remain out of repair, worn, broken, 
cracked, depressed, with a hole or cavity therein, dangerous and 
unsafe for travel thereon, all ef «which facts the defendant “** knew, 
or in the exercise of ordinary care should have known in sufficient 
time to have repaired and remedied the seme“ before the accident to 
plaintiff; that by reason of defendant's said negligent conduct, 
while plaintiff was passing upom, along and over the said sidewalk 
and while he was then and there in the exercise of ordinary care for 
his own safety and as a result of the ssid condition of the sidewalk, 
pleintiff tripped, stumbled, was thrown and fell to and upon the 
ground with great foree and violence; that he thereby sustained certsin 
injuries allered in the complaint, . 

After the verdict ef the jury wes returned plaintiff dise 
charged his attorney and the triel court entered an order upon defend- 
ant to serve notice of all motions on plaintiff, Plaintiff, a layman, 


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sme Sica Kes Oren otex SRR Ce KC RE 
XXKAAKLAAKRAKIN 

There is not the slightest merit in this appeal, Plain- 
tiff intredueed evidence that showed clearly that the sidewalk at 
the place in question at the time of the accident was so broken up 
and wat of repair that it wis dangerous and unsafe for pedestrians to 
walk thereon, Kenneth Prather, who lived on the lot sext te the 
cormr in question, testified that this comiition had exiseted fer 
tive or six yeors, eect 








welk, in fact, counsel for defendant agreed that certain photographs 
offered by plaintiff might be introduced without objection, These 
photegraphs show clearly hew badly broken up and dangerous the side- 
walk was at the place in question, Plaintiff testified that he 
resided at 5530 South Racine avemueg that he very seldom had occasion | 
to go south on Racine averme and thet he could not recall that he ever 
moticed the defective cendition of the sidewalk at the place of the 
eecidents that on September 14, 1937, betwreer 

all. len lle tae nee hs eet wn te sidewalk on the west 
#ide of Racine avermey that when he reached 62d street and Recine 
avenun he turned to cross over 624 street and while he was still on 
the sidewalk it “andereaved" under him and he stumbled and fellg that 








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— 

he twisted his right ankle and hurt his left clbow, and remained 

where he hed fallen; that Mr, Prather and a few other men lifted 

him from the sidewalk and placed him on the stairway at 6202 South 

Kagine aveme, und about teenty minutes thereafter Prather took hin 
to the Hemrotin hospital, where he remained for about four weeks, 

Prather teatified that he did not see plaintiff fell, but he saw 

him when he wes “down on the sidewalk and there were other people 

. erpound there;” that pleintiff was groaning and seowed to be in pain; 
that plaintiff eould hardly move one of his legs; that he took plain 
tiff te the Henrotin hespital, { 

che secisent, 

Defendant contends that the trial court erred in refusing 
te give the following instruction offered by it: “The jury are ine 
atructed that the City ia not liable for latent or unseen defects 
in the sidewalks which are not discoverable by the exercise of 
reasonable care, and if you believe from the evidence in this case 
thet the sidewalk in question was, at the time of the alleged accident, 
in a reasonably safe condition so far as it was discoverable by the 
exereise of reasonable care, then you should find the defendant, the 
City of Chicago, not guilty, disregarding all ether questions." The 
trial court very preperly refused to give the instruction, upon the 
ground that it had no applicability to the facts of the case. 

There is no merit in defendant's contention that the «vi- 
dence failed to show that plaintiff was in the exercise of due cure 
and ¢aution for his own aafety at the time ef the injury end that 
therefore the motion by defendant for a directed verdict in its favor 
should have been sllewed, Under the undisputed facts in the case it 
was for the jury to pass upon the question of contributory negligence, 
“tthe general rule is that negligence and contributery negligence are 
questions of fact for the jury, and ao long as a question remains 
whether either party has performed his legal duty or hes observed that 
degree of care ani caution imposed upon him by lew, and the determine 
ation of the question invelves the weighing anid consideration of evi~ 








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cence, the question gust be submitted as one of fact. (Chicage, 

: reed Co, v, Hutehingon, 120 111. $87; 
Austin vy. j t Bs @.[e. ante, p. 112.) Before we can say, as 
a matter of law, that there was ne negligence on the part of the 
defendant or that there was such contributory negligence on the part 
of the plaintiff as to defeat reeovery, we must be able to aay that 
@ll reasonable minds must agree that the defendant was not negligent 
in his acts or that the injury was the result of plaintiff's om 
negligence.' (Petre vy, Uimeg, 299 Ill. 236, 240, ‘See, also, Pollard 
Yo Srendway Contra) Sotel Corba, 353 lle 312, 322, 3232)" (Thomason 
Me chisace Motor Conch Coo, 292 Ill, App. 104, 110,) ‘the jury were 
fully instructed on the subject of contributory negligence and by 
their verdict they found that plaintiff was in the exercise of ordinary 
care, Under the facts it is clear that we would not be justified in 
holding that all reasonable minds wast agree that plaintiff sas not 
in the exereise of due care and caution for his own safety at the 
time of the accident, } 

The last contention of defendant is that the evidenge fails 
to diselose that the injuries claimed to have been sustained by plain~ 
tiff were caused by the sccident in question, Upon his direct exami- 
mation plaintiff voluntarily testified that he had had several accidents 
prior to the one in question and that he sustained injuries in each 
of them, It is upon this evidence that plaintiff bases the instant 
contention. Oefendant dees net contend that the damages awarded are 
extessive, and it is very clear that they are not, Plaintiff paid the 
Henrotin hospital $187.57. Or. John A. Graham, who attended him at 
the Henrotin hospital and after he Left the hospital, rendered plein- 
tiff a bill for $367. The jury assessed plaintiff's damages in the 
gum of $1,100, The amount allowed plaintiff for his injuries was only 
$545.43. Plaintiff yas been for many years “a post operative mechano 
therapist." He works for doctors ami after an operation hes been per= 
formed upon a patient his work is "to loosen up the muscles and permit 











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funetioning.” Jr, John A, Graham, who treated plaintiff after the 
accident, testified that when he saw plaintiff, about 9:30 o'eleck 
of the evening of the accident, he found that plaintiff had an injury 
to his right snkley that the ankle was markedly swellen, painful and 
rigid; thet there was an injury te plaintiff's left erm and toe his 
left shoulder, and he also found minor body bruises, ‘the doctor 
further testified that the injury to the ankle affected the tendons 
ef the soft tissue and that it teek some time for this trouble te 
Clear up, Sut he thought that it wes cleared up at the tine of the 
trial, ie further testified that he cuused an X«ray photograph of 
plaintiff's left elbow te be made and that the photograph showed a 
cominuted fracture of the inner condyle, otherwise called the 
"fumny bones” that there is now « union of the picces of bene, 
although some of the fraguents are slightly displaced, ‘The doctor 
further testified that in his opinion the injury to plaintiff's elbow 
is permanent, Plaintiff testified thet for sase years prier to the 
a¢eident he hed a hernia bat that it did not bother him befere the 
aecident and it was not necessary for him to weer s truss, ‘hile 
plaintiff was im the hospital Or. Graham found thet the hermia had 
beeome decidedly aggravated and required an operation, and he performed 
one on September 27, 1937. Plaintiff testified that after he fell te 
the sidewalk he felt a pein in the right ankle, pain in his elbew, 
and a2 severe pain over the left side of the intestines, ilaintiff 
contends that the secident aggravated his hernia, but in our view of 
the amount awarded plaintiff this particuler claim may be ontirely 
disregarded, Plaintiff festified thet At was not until « yeor after 
the accident that he was able to do a little works that he is still 
unable to handle eases involving ankylosis of the knees beccuse of 
the injury te his elbow, ‘The doctor also testified that he treated 
plaintiff from the time the latter entered the hospital until May 5, 
1938. Dr. Grehwm hes practiced his profession in Chicege for a great 
many yoors, lie is the chief surgeon of the Henrotin hnespite and is 


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ese 
en the staff of the Children's Memorial heapitel and the Illineis 
Sentral hespltal., in our judgment, defendant should be well 
satisfied with the amount of the damages averded by the fary, ani 
plaintiff? wight very justly complain of the amount ef the verdict, 
The emall anount awarded was due, in our opinion, to the character 
of the argument made by defendant's counsel te the jury. He called 
plaintiff “an ordinary fraud, a faker, a charlatan,” and he accused 
Plaintiff anid *his friend oy, Graham" of building up a case “from 
start to finish - with one avowed purpose, and thet is to stick the 
City.” He stated that the alleged accident wa a fraud and the 
alleged injuries, « wuild-upj that after the pretended sceident 
plaintiff went te Ris friend Dr, Graham because he knew the docter 
had a convenient memory and would do everything in the svorld te help 
pleintiff in the case, The only defense that defendant offers to 
this vicious and unjustified argusent is that plaintiff's attorney 
mate no objection to any pert of it. It is true that plaintiff's 
attorney was derelict in this regard, ani we elite the argument 
because it seems to be the only likely explanation of the inadequate 
amount of damages awarded plaintiff. 

The judgment of the Cireuit court of Cook county is 
affirmed, 

 «SUVGHENT AFFIAMED, 

Priend, P. Je, amd Sullivan, J,, concur, 





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REGINALD V. DUCKETT, ro 
— f) a 

iia il 
cHIcgGO AND WEST’ 
INC“, a corporation PPEAL FROM 
LOUASE*GHILARDI af 


SUPERIOR COURT OF 


; 

as 307T RG 717 
Appellant. — 

MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT. 

Plaintiff sued Louise Ghilardi, appellant, and others, 
for damages growing out of a collision between plaintiff and the 
automobile of appellant. The accident occurred at the intersection 
of 52a avemme and 22d street in Cicero, Illinois, on December 28, 
19372 As a result of the accident it was necessary to amputate 
the right leg of plaintiff. Before the trial of the cause plaintiff 
dismissed the suit as to defendants Sir Ghilardi and Sophie Andrews, 
At the time of the trial of the cause plaintiff dismissed the suit 
as to defendant Chicago and West Towns Railways Company, Inc. A jury 
returned a verdict finding Louise Ghilardi, defendant, guilty and 
assessing plaintiff's damages at the sum of $2,500. Defendant appeals 
from the judgment entered upon the verdict. Plaintiff, appellee, 
has not filed a brief in this court, 

The accident occurred about 2:30 a.m, Plaintiff had been 
visiting a lady friend in Chicago and left her after midnight, He 
then took a street car that took him to the northeast corner of 52a 
avenue and 22d street, in Cicero, He got off of the car on the 
northeast corner of the intersection of said streets in order to take 
a bus of the Chicago and West Towns Railways, Inc., which would take 
him to his ultimate destination, The busses of the Chicago and West 
Towns Railways, Inc., traveled west on 22d street until they reached 





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said intersection, where they made a left turn and proceeded south 
on 52d avenue. Plaintiff testified that he stood on the northeast 
corner for about twenty minutes before a bus pulled up to the inter= 
section; that when it reached the intersection he waived to the bus 
but that before he could reach it he was struck by the automobile of 
defendant; that before he started for the bus he looked to the left 
and did not see any automobile but he thought that he heard one; 
that, as to the lights at the intersection, he "looked and there 
were no lights there. They were not operating and when they did 
operate, they stayed green all around, I did not see any stép and 
go lights," The theory of fact of defendant was that plaintiff was 
not standing at the northeast corner of the intersection when the 
bus reached the intersection; that the bus reached the intersection 
and stopped; that the lights were operating properly before the 
accident and at the time of the accident; that when the bus reached 
the intersection the east and west lights were redj that when the 
east and west lights turned green the bus started to make a left turn 
on 52d avenue, that as it was making the turn plaintiff rushed from 
the sidewalk in order to catch the bus and that as he was rushing 
for the bus he was struck by defendant's automobile, which was pro= 
ceeding westward on 22d street with the green light in its favor, and 
that the movement of plaintiff from the sidewalk to a point in front 
of defendant's automobile was made so quickly that defendant had no 
opportunity of stopping the automobile in time to avoid the accident; 
that defendant stopped her automobile and took plaintiff to the 
hospital, 

Defendant strenuously contends that the accident was 
occasioned solely through the negligence of plaintiff and that defend- 
ant was guilty of no negligence whatsoever; that plaintiff failed to 
make out a prima facie case against defendant and that therefore the 
trial court erred in failing to instruct the jury to find defendant 
not guilty on defendant's motion, made at the close of plaintiff's 
testimony, and also a like motion made at the close of all of the 


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wo Ive | 
evidence. The argument in support of this contention is not without’ 
some force, but, following the well-established rules that govern 
motions to direct a verdiet, we have reached the conclusion that we 
would not be justified in holding that the trial court erred in failing 
to direct a verdict for defendant, 

Defendant contends that in any event it must be held that 
the verdict is contrary to the manifest weight of the evidence, This 
contention is clearly a meritorious one and must be sustained, We 
agree with defendant that it is difficult to understand how a fair and 
intelligent jury could have reached a verdict for plaintiff under all 
of the evidence in the case, There is merit in defendant's argument 
that the amount awarded plaintiff, $2,500, is such inadequate compen= 
sation for the loss of a young man’s right leg that it is apparent 
that the verdict was "a sympathy verdict not predicated upon the 
evidence, but a desire on the part of the jurors to give to the 
Plaintiff some compensation for his serious injury." The evidence 
shows that plaintiff's hospital bill was $230, his doctor's bill was 
$150, and the cost of an artificial leg was $76, so that it appears 
that the jury awarded plaintiff only $2,044 for the loss of his leg. 
After the evidence in this case has been carefully considered it is 
not difficult to understand why plaintiff has not seen fit to defend 
the instant judgment, 

It would be a grave injustice to defendant to permit the 
instant judgment to stand, and it is accordingly reversed, and the 
cause is remanded for a new trials 


JUDGMENT REVERSED AND CAUSE 
REMANDED FOR A NEW TRIAL, 


Friend, P. Je, and Sullivan, Jo, concur, 


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