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106 - 31235

BISHOP-WYATT COMPANY,
a corporation.



Appellant, )

) APPSAL FROM

▼• } OIRCUIT OOflRT,

QOm. OOTJSTY,
J, R. LUDWIO,

Appellee*

Opinion filed March 2, 1937,

MR, JUSTICE 0»00IM0R delivered the opinion of

*«»>^»- 2 44I.A. 6 32^

Plaintiff brought an action of assumpsit againet
the defendant claiming 11388*45, being |1000»00 loan and
the balance due for ooamiaaione paid by plaintiff to the de-
fendant which had not been earned by him. The case was
tried before the court without a jury, there was a finding
and judgiment in defendant's favor and plaintiff appeals.

The record discloses that plaintiff and the d»»
fendant entered into a written agreement whereby the defend-
ant was employed "to sell our 52 success thou^ts and su^
gestions with pvrtfollos and lUtistrated jim letter service,"
The contract further provided that defendant was to receive
as compensation a commission of 40 percent of the net total
on orders ssoured by himj that ttoe commissions would become
due when plaintiff had r^ oeived i»yment in full from its
customers; that plaintiff should furnish the defendant with a
"drawing account on all contracts secured by you not to
exceed seventy^f ive per cent (75^) of your earned commissions
on contracts closed during the wselc in which the advance Is



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aade« Limit drawing acoount not to exceed One H\jndred
and Fifty Dollars ($150.00) in any one week. The balance
of the commissione due you after advances as above out"
lined hare been deducted shall be paid after we have re-*
ceived payment in full from the customers you sell*"
It is further agreed that the Bishop-Wyatt Company will
set aside or loan to you One Thousand Dollars ($1* 000*00)
which may be used to mafce up difference between earned ooBi»
mission and draw of $150*00 for each wee]c«"

After the contract was entered into^ thedef endant
vent to wori ae required by the contract and earned commissions
amoxmting to |4490t87# Ouring this period some thirty odd
weelcs, plaintiffs had advanced to the defendant #1S0«00 a week
until such advance reached the sum of llOOO.OO when such
advances were di8Contina4ld« Plaintiffs also paid to the
defendant during this period of time as and for the commis-
sions which he had earned |4879«33« So that the defendatit had
received from the plaintiff in all #5879.32, while he had
earned as coaoiissionB $4490*87, and the difference between
these two sums $1388«46, plaintiffs sought to recover in the
instant case«

Plaintiffs* declaration oongiated of special covin ta
and the oommon counts and a copy of the accoimt and affidavit
of claim was filed with the declaration. This seta up in
detail the business done by the defendant for the plaintiff,
the charges made and tbe ooaKaissions earned, etc. The defend—
wit filed the general issue fand affidavit of merits, but there
was no contention made by the defendant that the account and
affidavit ole.im filed br the defendant was inaccurate in any



b9rbmsH SiiO Ij^aoxs od- ton ^^cuoea* sj!l««3yb tJtisiki ♦^fcesi

**»iesw noj3« irol: OC*OgX$ to w^iS Sn» aojtsiiJa

iiojjs «»iiw 00*000 it \6 osfM '^'^-^ '*•*■■*'>*« 9©c£vl)» rfox/8 li^rtir

-aisaoo 9r!5- let fefljs sjs »a<il 1:o roix»C( s^d* sfll«/l) ioRtanlBb
bad tmha»\^b '4..ij #?^ff.t c5 *S5*€7aM iJSflTtsa fcarf ei rioirfw aooiB

si qu sJsK ■ '" . '.o;^:i^lT(, ■ ^ ■:■■.- ' . «^ ffliislo to

j^ft- •> .i:...,i., ::,.,, .;»«'* JniBfcnr'""- ■•■•• - -'♦ ijfif sfcissai no i*a<< •♦•-'■■- ■■■■ ejsir



respect* The defendant's position was that after the parties
had entered into the written agreement, defendant's duties
were changed so that he was re<3ixired to spend more money in the
prosecution of tbe plaintiffs' lousiness than would have heen
required had the written contract remained unchanged. The
court expressly found from the evidence that no such change
in the contract had been made. The court further held as a
matter of law that the defendant was not obligated to repay
the 11000,00 or any part thereof that had been advanced by
plaintiff t© the defendant, becausf the oontraot did not so
provide. In this we think the court was clearly right. The
substance of the contract was that the defendant was to receive
40 percent coRmissionft oa the contracts he had obtained, on moneys
received by plaintiff on these contracts from its oustoaers,
aad that plaintiffs woxtld advance defendant $150»00 a week
as & drawing account up to the auia of tlOOO«00# This is
the testimony of plaintiffs' president* The contract then
provided that after applying the 0150,00 per week advanced,
on the commies ions earned, the balance of the commissions
would be paid by plaintiff to the defendant. There was no
provision that the #150*00 per week advances or any part
thereof should be refxmded in case the coaimissions did not
equal that sua. It has been held in such case that in the
absence of an express agreement to ]pay back amounts advanced
to an employee in anticipation of expected commissions, or words
in the contract showing the employee to be pereojftally liable
to repay such advancements, they are nOt to be treated as
loans and the employee is not liable to repay '.his employer
in oaso the commissions did not amount to as muc^ as l^e



-■■ft fii y»fle« 9T0« bisaeft- o* &»Tl«|feits: b^jv ©■: . -..„ v8 fe«j|«.sffo 9t«»tr
9rif ,6«§fi<?iifljs0 ^gfffJfBaw ig"om:#iioo swtitinr'w «"'ii lw»rf fessii/9«iE

0^ .ton bib to&xtfsoo siW 0^x.f.!ft€.o(5 t.tfffferffllwb srf* ®t lii^nialq
iiSsar a Cft>«OSII ^nsfca^"' ' '.ItX^islalq tMt ha*

«rf# ffi +«E[^ efi«o rto^R aj; ftX^,;,f /iocd «M *i ^s^ii "«ifp»

_.^. -•■ •■■'• :ji« ®j?i Ov-f- -^-: - -' '-?''' - • -■?■•- iswaoo flil* wajso ai



advances, Felaenthal Bros, & Oo» v, Gradwohl. 217 Hi, App,
170; Nelaon ▼• American Business Bureau. 241 111, App, 433,
and authorities cited in those two cases. The fact that the
written contract states that plaintiff "frill set aside or
lean* the defendant 1^1000,00 to be used to aake up the dif-
ference between his earned commissions and $150.00 a week«
does not diange the situation. The tlOOO.OO advanced, as
disclosed by the record, cannot be considered a loaa, be-
cause the contract provided that after the advancement to
the defendant of #150«00 a week, the balance of the defendi«»
aat*s ooBuiiiSBion over and above this sum of |150«00 per week
veuld be paid by plaintiff to the defendant when the commia«»
slon should have been collected by plaintiff,

fhe undisputed evidence in the record, however.
Is that plaintiff had paid the defendant for oammissiona
$632*50 aore l^&n the defendant was entitled to receive.
This was brou^t about by the fact that plaintiff was unable
to collect the flill contract prices from some of its customers.
The statement of the account filed by plaintiff showed that
the amount of these over«»«payment0 was ^672,50, but on the
trial a witness for the plaintiff testified that since the
account had been oAde up, plaintiff had collected #100*00
■orsi and that the defendant wotild therefore, be entitled to
#40,00 oommisaiott.. This $40.00 deducted from the $673.40
leaves a balance of $633«40, This is money which the defenA-
ant had received from Hhe. plaintiff which in equity and good
conscience he oug^t not to retain, and under the common counts
filed by plaintiff, the plaintiff is entitled to recover this
sua. Ho suggestion was made to this effect on the trial nor



00»-00i^ jE>»*o9lIoo i>«if lll^^iAlq ^cfw »jfe«B! c»»a £iiia ♦ai/otjo*



is there any suoh suggestion Bftde in this oouxt, but upon a
oonsideiration of the record, we think plaintiff ou^t to be
giTen a judguent for the #632*40, there being no dispute
in the evidence^, as to the over-payment.

The judgment of the Circuit Court of OoOk County
is reversed with a finding of fact and judgment will be
entered in this court in favor of plaintiff and against
the defendant for $632»40» Each party will be required
to pay its or his own eost in this court*

JUD&MEHT REVTSRSED WITH A FIIiDI»G OF FACT AND
JUDGMENT EHTSRSD IH THIS COIFRT*

FIHDIHG OF FACT: We find as an ultimate fact that plaintiff
has overpaid the defendant #632 .iO*

THOMSOH, J. COHOUHS;
TAYLOR, J. DISSENTS,



*d"j:wc'' • ;30© iimQ '»iiS t*' ©d-i tJ8<? **■



Lie - 21244



h, VOCECL AND S« EOKH, oo-partnerfi,
trading as 70G£L & K.Qt.S,



Appellants^



L. A, aHUTFIN ASD J. B£M01«» oo~ )
pf-rtnev, trading as BBNKOH-GlilFFlH )
00., )



APPEAL FROM

CIRCUIT OOURT,
OOOK OOtfNTT,



Appellees^



i



Opinion filedMarch 2, 1937,

MR. JUSTIOS O'OOHHOR delivered the opinion of

the court, . . ,^ '-')i3

•^- _^: ,jt. .. ^ '-.

Plaintiff br©u§-^t Bn action ageinst the defend-
ant before a justice of the peace in the to^n of Oicero,
and had a ^udgnent by default of ^109,50* The defendant
appealed to the Circuit Ooiirt of Oook County, and when the
case was reaohed for trie.l on Msiroh 85, 1926, the i^eoord
dificloses, that plaintiffs failed to prosecute their suit
ada, on motion of the defendants* attorney, it was dlsmiesed
at plaintiffs' ooats fo'^ want of prose oution. Five days
later co^jnsel for plaintiffs served notice on counsel for
the defendant that the/ wov.ld appear the following dsr
and more the oourt to vscate and est aside the order ojf
disiaiasal and ask that the cause he re-inatated and in
support of that motion an affidavit was made by one of
plaintiffs' oounael. The oourt heard the matter on MaToh
31st, denied the motion and plaintiff appeals. So that
the onj-y question before us is did the court abuse its

discretion in denying the motion.

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Tfce only matter the oourt had "before It on this
motion, was the affidavit of one of plaintiffs* counsel;
that affidavit sets up that the affiant was assigned to
oonduot the trial on behalf of the plaintiff; that on
ISaToh 35, 1936, when the c».uss was on the trial call he
appeared in court and at that time requested the said
cause to be held until 3:30 o'clock P.M. of that day,
for the reason that at the hour of 3:00 o* clock on said
day, affiant was scheduled to appear before Judge Friend
la a foreclosure case, in which case there was a motion
for the appointment of a receiver set for 3:00 o'clock;
that at that time the motion was called before Judge
Friend and that counsel was there engaged until 3:00
o'clock in the afternoon; that immediately upon that
statter being disposed of before Judge Friend, he went
to Judge Swansonts court, where the matter in question
was pending, and then learned that the c»u3e had been
dismissed "at 8:30 o'clock P.M. or shortly thereafter
for want of prosecution," and that affiant was aotimlly
engaged before Judge Friend at the time of the dismissal*
we think the affids.vit was clearly insufficient. It
does not state that when counsel for plaintiffs appeared
in oourt on the morning the case was set for trial before
Judge SwansoB, and requested that it be held until 3:30

o'clodc of that day, that the court agreed to this re-
quest* For au^t that appears the court might have
denied the request. However, counsel in their briefs
state that when the matter can* on for hearing at 10:00
o'clock before Judge Swaneon counsel for plai^j^tiffs
appeared and made a recueet as above stated, and that
the oourt •granted said leave,* But as we have said.



4\.ah ^- ' ■ . > ::ioolt'o o^t^ lis'a.j- i>iii:-. ac oi^ «>8im&
hJBmi's''i ^ttst »io*»tf %3^<iii& 9t b^Ii^UfS&s tt^m #u«ltls ^y^

»j3.i;=r,-^ -fi.'wiwti jL«*»ii*;53 a«w j!iul*0at «.# ©ii»i# *J»^-, *-» tadji'

'"'':^ iltaa bB^mr'.- '■" - <:<■ -■■"■■■• '■■-^■-••■•- -"•■'-» ^ij J&nai'sl
<■-,,:,.; aoqif tX®"^^^^-'-^^' - ■■■■■■-' ;«-'■-■"■... .. >.w ai aiooJo*©



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this does not appear in the affidavit filed by counsel.
Moreover, even if the court had granted leave and had
stated the case would be held until 3:50 o'olodk, the
affidavit further shows that counsel did not appear
before Judge Swanson until after 3:00 o'clock and that
the cause was dismissed at "2:30 o*cloot!: or shortly
thereafter,"

For failure to aiake a sufficient showing in the
affidavit, the judgment of the Circuit Court of Cook
3ount7 is affirmedt

AFFZHMEBi



TAYLOa, P»J* and THOMSOH, J. OOKOOR«






$?smM.ao ,1 .wos.iiLom bii ... .sojYAir



72 - 30888
CHARLES O'LKARY,



Plaintiff in Error,



APPEAL FROM

OIRCniT COURT,

COOK COUNTY.



COMMISSIONERS OF LINOCLN PARK,

Defendant In Error J ^ ^ J ^ j^. 6 3 2^
Opinion fil«d Iferofe 8, 1987.

MR. JUSTIOii; THOMSON delivered the opinion of
the court.

The plaintiff O'Leary brought this action in
asBumpsit against the Commissioners of Lincoln Park, a
corporation, to recover salary to nifcioh he alleged he was
entitled, as a Civil service employee, from Maroh SI, 1921,
to the date on which he started his suit^ The plaintiff
filed a declaration consisting of the common counts and a
special count in which Ike set out the various steps by
means of which he came to he appointed to the office of
time-keeper, pursuant to civil service examination, and
performed the duties of that office from April 1916 until
March 31, 1921, since which time he alleged he had not been
permitted to occupy the office nor receive the salary
appropriated fox its incumbent; that on the last mentioned
date the defendant pretended to abolish the office and so noti-
fied the plaintiff, but the plaintiff alleged that said office
was noi in fact abolished, but on the following day, one
Schmidt was illegally appointed by the defendant, to this
save office, which the plaintiff had heretofore occupied,
with; th^e same duties attaching thereto; the defendant having



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to aotRtqo Bd& b-nevil^b SfOBMQJiT IfOItaUT, .HM

31 ,:ii.eH fliooijiil lo stsacisaiaasoO srf* Mni^gA tXBqsm^BJb
s<S7? art i)©2j»I r* 9rf doixfsr o^^ Yt«I-«e leroosri o* ^noltsioqtoo

\titatBic[ ©rtT **jtua Biff t>»^^1s;^a ^tl ffoiriw rro a^JSJb ©j:!* o*

a bas Btsxuoo nommoc sdt to gai^Biefloo noi^iS'ijelosi) a fesXil

Yd eqaJa a.'ic;i;T»v sdt tuo t»B sif a'oirJw /il iasjoo Ijsioaqa

?o soillo 9ff* o* bBtaioqqn 9d o^ ^tceo exl rioiriw to en^Sffi

bo*? taoi^AnxfffJSXs ssivisj© IlTio o* i-ii^j^eiuq tTOfjsajf^-amW

ntttu axei IIt^A moil solllo tsdl- tc B^ttut sdi JbSiBiolisq

ff^'st!' ;tofl bisrf ad JbegsIIfi 9d ^mti doirfar ^oaie ^iSex jXS rfoijsM

YiaX-R8 9d[* eviso'^i loa ■soJC'^lo sri* Yq^^^oo o* Jb«3>;fXiET9g

-i*cn oa .bn« solTto 8d# ifeiXocf* o* bBi)x»#9iq d-rt3fciif*"i«£ji »rf# e*^

»oitlo blm tsiiit fcsgsXXfi m#ni«Xq »xlt iad jniJfilJBXq ad* feell

9no ,Y«* snifroXXol ©ri* no tuci ^b9dailodi£ toj&l at toit ««w

»ttit ot t^flsfcttslaft 6dif %d b^tntoqqA illsjg^Blll saw ibisudoB

«i)9lnjjooo (iV!Otot»r''id .bad T:li;ffli«rcT ^d* rioXrfw teolllc ©ajaa



illegally changed the name of the office to "assistant fore-
man". It was further alleged that the defendant had made
the tisual appropriations for the office of time-keeper; that
no charges had been preferred against the plaintiff and he
had always stood ready, willing and able to perform the aer-
▼icee and duties of a time-keeper, but th« defendant had re-
fused to permit him to perform such dttiea since March 31,1931,

The defen ant filed a number of special pleas,
one of which was to the effect that the office of time— keeper
which the plaintiff had previously occupied had been abolished
on March 9, 1921, and that the plaintiff had never made any
effort, by the filing of a petition for mandamus or in any
other manner, to review, vacate or set aside the order abolish-
ing said office or to establish his right thereto* The plain-
tiff demurred to this plea and filed replications to the other
pleas« The court refused to sustain the plaintiff's demurrer
to this third plea and carried the demurrer back to the special
count of the declaration above referred to, and sustained the
demurrer to that oount» The plaintiff elected to stand by his
declaration, whereupon judgment was entered in favor of the
defendant and a^ijiinst the plaintiff. To reverse that judgment
the plaintiff has perfected tiiis appeal. In the other special
Pleas and replications thereto the parties had joined issue
on the question of whether the office of time-keeper had been
in fact abolished, as claimed by the defendant but denied by
the plaint if f»

In support of his appeal the plaintiff contends that
there was no necessity of compelling the defendlant, by mandamus,
to restore him to the office of time-keeper because he had never



eijaai barf i-njs&nstsl) 9cf# &Mdi b^goXls i9sitriit a«w JI ^^d&n
&&d& ; x«qs93i~s»i;f lo aomo arfJ lol eaoid-jsiiqosqq* Xjsuau exi*

-aae <»d* irrotTaq o;t 9ld>B .&n.6 afrlllxw ^-^js-ss Jboo:^8 eY^BWls bad

^IS8X<jI5 dotosM sonxB 8©jt#irfe xfoxja mTot^iaKi c* ffixd irlmteq of b«BuJ

^BMBlq Xsiosqa lo 'xscfxatrxx jS fesLclt Jhji nslefc arlT

n9qe»i~9ffii# to soillo on* rf^sd* Joelis ariif o* ejsw rioirfw lo 9«o

fej^rfsiXodfi flS8Cf bad bBJtqunoc \l9ssoiVBrq b&ti ItitttiaXq^- ©dt dolfftr

ffle 9f>J8m TSTsn b&d YfMalMlq &Ai tsAt ba£ «XSeX «© fioijeM flO

^flis ai ic auausbfl** lol noi^i^sq s to gjalXlt ©rid- ycf t*Tolt©

-ci.BXq ©rfT *o*«t»dif ^ri^ii aXif. rfellcfJBd-ae o;f :to ©oi%lo bi&B gflX

XJB^»qs '^iW' ot jio«cj Tsattifflssl) »d* &9iic:E30 bam M^lq butfU 9lsii o#

ftrfj £>9flx«;?-exfe Jbn« «©:* tssxeleT eyacf-s aei^JS-ZAXo^l) sdJ !to *m/oo

Bid ^d ba&t9 o* 159*0 aXs tii*aXsXq arfT «#/ij[/oo afaifj- o* leaxi/msZ)

sri^ *o Tov^l 0.r l)»i©#ae »3«r tHaiBgXxui, floqw©x8dw «jaoX;t«t«Xo©f)

Ijexoaqe %9dtc Btii al »XAi»cqs alii* j>©*09!b:»Q eari "ili^aiaXq ©ri*

di/sssl &9aXot bsd asiJ-xacr ari^ o*9:E8ri;^ Baoitsoilqsn bas eB©|q

a»9cf jbisri i8q9«ai-«ffixt to ssiilo axl* ^ads-ariw to aoitsBtsp »sii ao

X<i Jbsinei) tu^ itast>ae't''^ ^'^ x<f &emxjsXo bb ^bndellods tojst at

tBtit ftfonatffloo tlX*iiX«Xq srf* XA*qa« eirf- to jToqqms hI



been out of the office. In our opinion that contention ie
untenable. Whether the office h-d been abolished in fact
or the defen^anthad merely pretended to abolish it, the
plaintiff by his own pleading shows that he had been out
of It since March 31, 1921. It is of course true that the
defendant haa a right to discontinue any office or position
in good faith, if it becomes no longer becessary or useful,
but neither it nor its civil service board has any right
to continuis the position in force and remove the plaintiff
therefrom until charges have been preferred against him and
sustained by the civil service board in the maniner provided
by law. Nor can the defaidant or its civil service board
legally abolish an office or position temporarily for the
unlawful purpose of later re-establishing it» sither under
the same or another name and installing some other person

in it. People, ex rel Jacobs v . Goffin. 282 111, 599,

until
Bv^yone, finding himself in the position of this plaintiff,

has established his ri^t to the position or office involved

either by mandamus or oth«T proper proceeding, he is not in

a position to sue the municipality, and recover bis salary

for the period he claims to have been ille^lly prevented

from performing the duties of his position or office.

It was held in 01 ty of Qhioago v « People ex rel
Gray> 310 111. 84, that even where an ousted employee filed
a petition for mandamiis, seeking both to compel his reinstate-
ment and the payment of his salary during the time he had
been illegally prevented from performing his duties in his
position it was obnoxious to demurrer in seeking two kinds
of relief, one of which, namely, his reinstatement, must pre-
cede his ri^ht to the other, namely, the collection of his



-5-

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tdgii \aJi sjsd iji«o^ ©oiv^ee livio six ton *i tsrftx^c Jucf

bru'' Bit-/ t«ni:»^« imsxslsiq asM ®v«fl ssfsxexlo Ia^cxt flios"t»a»il*

fcsJbiro'tq tBcza&ts. edi at feiaed ^cIvTsb livio »d^ ^ Jboni^rtsuB

Lxficc doxnsa livxo 0.+ i -^ -^-'^BjE-nelai) ^dt ixso loH ♦**! trf

9dt lo"! t-EiT3itoqa5»# ac _ \ to soil:!© n& rfai£<xf« xH^^l

flOBTSKi xBfiio assoB ^^llljs^enx bns Oman r9dioas io dsisa ad*

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back salary^ since that decision^ howeTery It has come to be
held that "no obstacle exists to the granting of complete re-
lief in one proceeding*" People v . Coffin, 279 111, 401;
McArdle v . Pity of Ohioa^x)« 316 111. App. 343, The court
held to the same effect in the People ex rel McDonnell v .
Thompson, 316 111, 11.

The plaintiff shows by his own pleading that he
was a ciTil service officer or employee. He was removed from
his office or position by the Park Civil Service Board* Before
he may be in a position to bring an action at law against
the CoHHBissi oners of Lincoln Park, for salary following the
date upon which he was ousted from his office or position,
it would be necessary by appropriate proceedings to which
the Civil Service Board would be a necessary party, to establish
that the position or office still exists and that he is legally
entitled to it, and has been, ever since the attempt was made
to oust him from it» City of Chicago v . People ex rel Gray,
supra; Gersch v . City of Chicago, 192 111. App. 190,

For the reasons stated, the judgment of the Circuit
Court is affirmed*

JUDGMENT AFFIRMED*

TAILOR, P,J. AND O'CONNOR J. CONCTJR*



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