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Illinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.279) online

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noaioq atef* xif l»s»o^&tfl» ad X«ki P.*flaffl3»n3fl rioua Jbcje ^Bt»dfo I0 aifcfab


In construing this provision, the ooiart will try to place
itself in the position of the parties at the time the agreement waa
made, in order to arrive at the intention of the parties at the time
the provision for the payment of the commission was considered.

It appears that the defendants ohjeoted to this provision
for the execution of judgment notes by the defendants, and as a
result another provision was inserted, from which it is evident that
the oommission was to be paid fTtm the rents received from the
Engineering Oorporation until the amount was satisfied, which
company was empowered to make a payment each month as the rent aiatured*

we have considered all the objections raised, and are of
the opinion that the oourt erred in finding for the plaintiff and in
entering jud^ent for the amount appealed from. The judgment is
accordingly reversed and the oa««e remanded,

IILSGH MB HAU., 33, 0OK0t][%


'to i»iA. iiii , aolioeldo <»sii He J&eioJbisnoo 8v«d »v.



Defendant in Error,


Plaintiff in Error,


27 9 I.A. 641'


This is a writ of error issued at the request of the
defendant to review the record in the Municipal Court of Chicago,
wherein the court at the close of the evidence directed the jury to
return a verdict for the plaintiff in the sum of 1535.15. Upon
this verdict the court entered judgment. The action by the plaintiff
against the defendant was for goods manufactured upon a contract
between the plaintiff and the defendant, and delivery refused by
the defendsuat, to the damage of the plaintiff.

The defendant filed an affidavit of merits ujider oath,
and substantially denied that the goods were manufactured aoeordiag
to the agreement between the plaintiff and the defendant, and averred
that the contract was cancelled by the defendant for the unused
merchandise, by reason of failure of the plaintiff to manufacture and
deliver the boxes acooirding to the agreement between the parties, and
that the defendant was daffiaged in the sum of |1,000, for which the
defendant is entitled to recover from the plaintiff.

Upon the issues thus formed, the plaintiff offered evidence
established by witnesses, and introduced exhibits Nos. 1, 2, 3, 4,
5 and 6, and the defendant submitted its evidence.

The evidence is substantially that the plaintiff was
engaged in the manufacture of paper cartons, boxes and containers;
that a salegaan of the plaintiff, at the request of the defendant,
called in regard to the manufacture by the plaintiff for the defendant


THf^OO iAllOiaUM Of (

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of a paper display \)ox. In whioh to display face powder, faee oream
and other cosmetioa* Samples were submitted by the plaintiff to
the defendant, and finally resxilted in an agreement between them for
the fflanufacture of the paper display box. The defendant mailed to
the plaintiff a signed order. All of the boxes were manufactured by
the plaintiff, and one-half of the boxes were deliveritd to and
received by the defendant. The balance of the order, the defendant
refused to accept, on the ground that the boxes were not auitiible
fox the purpose intended; that the plaintiff by its agent, in the
manufacture of the boxes, warranted that they would be suitable for
the shipment of goods by parcel post, express, or as freight to be
carried by public carriers; that goods were shipped in the cartons
and were damaged when received at the places designated.

The defendant's theory of defense is that the contract in
question was not a oom^ulete and final statement of the transaction,
and that parol evidence was competent to establish the agreement
entered into between the parties. It is unfortxmate that the
defendant did not abstract the record, so that this court could have
before it not only the evidence introduced and offered at the trial,
but also the exhibits*

As a part of the evidence the plaintiff offered a number
of exhibits, already referred to, some of which arc relied upon by
the plaintiff to establish a written agreement between the litigants
for the manufacture of the display boxes in question.

We have examined the abstract for the purpose of consider-
ing the exhibits, together with the evidence, for the purpose of
determining whether a written contract was entered into, but unfortian-
ately the exhibits, which are important in the consideration of this
question, were not abstracted. The fault with the abstract is that
this ooiart la unable from the abstract itself to determine the

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oharaoter of the contract, as to whether as a contract it was

complete in itself, and. whether the trial court was justified in

refusing to receive parol evidence, the effect of which would tend

to contradict the oontraot entered into between the parties*

The defendant does not seriously contend that the abstract

is oomplete so that the court could properly pass upon the question

involved, but suggests that if the plaintiff had relied only upon a

written order of the defendant, which is an exhibit in the ca,se, a

different situation would apply, and that the trial court would have

been justified in its ruling, but the unfortunate feature of this

case is that even that exhibit is not abstracted. The defendant seems

to have determined what wsa proper to be considered by this court whea

it prepared the abstract of record. This court should have before it

the facts fairly abstracted so that th& court could determine from

the record the question whether the court erred in refusing to

admit evidence offered by the defendant as to what the contract really

was. This court, as well as the Supreme Gourt of this State, has

considered the effeot of the failure to file a proper abstract, and

the expression of the court in its opinion upon this question in the

case of Salisbury v. Deuteoh. 178 111, App. 633 is as follows:

" * * *; nor are any of the several written instruments
introduced in evidence abstracted, we fail to appreciate
the opportunity of doing the work devolving uDon counsel,
and are not disposed to search the record for the informa-
tion th*?t the plaintiff should have furnished in the
abstract, la Thornton v. Muus . 130 111. App, 433, the
court cites aiany authorities in support of the rule there
announced to the effeot that where an appellant furnishes
an incomplete abstract, in Violation of the ru*o, it is not
the duty of the court to search the record for reversible
error. There are many other authorities to the s?ime effeot,
and from what appears of the case at bar in the abstract,
we have no inclination to hesitate in the enforcement of
the rule*"

It is also the rule that where a fair effort is made to
comply with the rule that the abstract shall fully present the error
relied upon sufficient for the purpose intended, although defective

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. ,^ ..; i. ». ..

« ■' '


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•▼l#«©tsJb rf^xfOrf*X.p. ,i)«&«»*ni aeoqiiP:; 9riJ Tot fneioiitvs acqu -SeiiaT.


in some particulars, the abstract is accepted as sufficient for the

purposes intended, and if for any reason opposing counsel is not

satisfied, he may file an additional abstract of the record. The

Supreme Oourt in the case of Hiokox v., Pity of 3prinKfield. 308 111,

28, clearly set forth the duty of the partiea in filing an abstract

of the record, and said:

"This right of the opposing counsel, hoi^ever, has never
been construed to justify the filing of an abstract which
does not pretend to comply with rule 14, and thereby compel
the other party to do wliftt the appellant or plaintiff in
error shovild have done. As we said in Gibler v. Pity of
Mat toon. 167 111, 18, 'it is not our duty to perform this
work of counsel, which, in detail, as to them is incon-
siderable, but v?hen iajpoeed upon us is, in the aggregate,
extremely burdensome. '«

The defendant having failed to properly abstract the

record, and this ooiirt not being in a position to determine whether

the complaint of the defendant is justified, the oourt will be obliged

to assume that the trial court had before it all of the evidence,

and that its ruling, baaed upon the evidence uras p»opcr. The

judgment accordingly will be affirmed,



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S7616 / '■■',/


/ r^Jy APPl^ FROM
Plaint iff -Appellee, ^-"^'/x


0OMPMT, a Corporation,

2^/9 l.A. 64^'^

Def 0nd3,at-%pellant ,


Plaintiff* s action in the Municipal Court of Onoago
against the defendant ws.8 on an alleged contract , After a he ring,
without a ^ury, the oourt enter d judgment for th© plaintiff and
against th© defendant for #1,440, from which the deftndant prosecutes
this appeal.

Plaintiff's sjtnended statement of olaim alleges that the
defendant, on March 7, 1931, entered into an agreement -sith the
Foreman-State Trust and Savings Banfe as receiver, whereby the defeagt
dant agreed to enter into a lease for certain premises located at
3309 West Madison street, Chicago, Illinois, for a period of one
year, commencing May 1, 1931, and ending April 30, 1932, at a monthly
rental of |135; that the defendant refused to execute a leaee, to
the damage of the Foreman-State Trust and Savings i ank in the sum of
|l,500; that thereafter the plaintiff by aeeignjaent became the
owner of the claiis of the Foremsn-Stat e Trust and Savings Bank
against the defendant.

Th® defendant filed its affidavit of merits, denying any
contract was entered into hy and between the defendant and the
plaintiff's assignor for the execution of a lease for the promises.

The facte were stipulated, in substance, as follows;



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.A.i eV2 I .

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..- uoo

xQtm ^xuoo silt (\^«t ^ ^Liodtiit

ijF ^»affJ;4st,©«« «-6> ixxsi': aaaiv-t- tuna; cTj^iril' IP'S

:,> boiT.'-. , ■OffilXl .0330idO ^^oexd-c noalftjsi- 0S5

"That the ■'^'oxQiBan :iitate l-'rust & %ving8 Btank, as
Receiver, assigned its claim against the defendant to
the Plaintiff ox^ Jrinunry 27th, 1933, by an instrument
in vwiting and that Joseph B, Ford, as ?3Ucces;?or-
receiver, assigned hie claiai againfen the defendant, to
the plaintiff on January 14th, 1933, by an instrument in
writing, pursuant to the teuas of an order entered in the
Superior Court of tiook bounty, Illinois.

That the defendant occupied a store located at 3309 W,
Madison -'treot as a tenant of the >"oreman ^tate Trust
& -avings Bank, as Receiver from the lat day of Msy, 1930,
to and including April 30th, 1931,

That on February 25th, 1931, the defendant wrote the
Forema.n State Truat & ^^avings Bs.iik, enclosing unsigned
original B.m duplicate copies of a renewal les.Re for
said premises for one (l) year oommencing May 1, 1931,
at a ffionthly rental of |125,0G, and requested the said
Foreman ;:.'tate Txust & ^-^avings Bank to have both copies
properly signed and returned to the defendant at its
earliest coinrenienoe.

that on March 2, 1931, the Foreman >^tate Trust & -iavings
Bank forwarded the leasee to its attorney, Harry Perel,
and requested him to procure the neceessry court authority
to execute the same*

That on March 6, 1931, the Foreman State Trust & Savings
B'-nk, as receiver, was authorised to execute leases
by an ord^r entered in the -Superior Court of Cook County
in a certain cause then periding,

The,t on March 7, 1931, at the hotor of 10:30 a, m., the
FAreman Stats Trust & Savings Bank, having executed th®
said leases, placed the came pxQp&Tl-^ stamped, in the B» S,
Mail, addressed to the defendant, and;

'fh*t on March 7, 1931, at the hour of 1:30 P. li, the

defendant deposited in the U, ;;>, Moll, a letter addressed
to the Foreaan '-^ttxte Trust & Savings Bank, as Keceiver,
withdrawing' its offer to accept sr-td lease and notifying
the plaintiff that it did not in' end to renew ite leaee
after the expiration of the then present term on April
30, 1931, which letter was received by the Foreman state
Trust & Cravings ':ank as Receiver on March 9, 1931; that
this letter vi&b written to the Foreman State S'rust Sa EJavings
Bank by the defendant without its havinii any notice of the
entry of the court order or the execution of the leaae by
the Foremaja State Trust & Savings l\?aik and the deposit of
the saae in the mails to th© defendant,

Th?t the defendant on '-pril 30, 1931, addressed a letter
to the pl??.inkiff enclosing keys for said premises and
advising that it had vacated the same,"

Thie stipulation between the parties was in lieu of evidence to

be offered by either of the partie© appearing in the sjoove



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cause, except as to aoy evidence to toe produced by either side
oa the question of daraages*

It appears from the pleadings that this action by the
plaintiff is to recover damages arising out of the failure of the
defendant to execute a lease, and is clearly stated by the plaintiff
in his amended statement of olaiia and supported by his affidavit
of merits. The rule applicable to the question of the recovery of
rent upon a lease ae a proper measure of damages does not apply
where, as in the instant case, the pleading is based upon an action
to recover damages for failure to execute a lease* As we have
already indicated, the plaintiff must recover upon his pleading for
whatever loss he sustained at the tiae of the breach. There is
BO question that failure of either party to sign a formal contract
will not defeat recovery upon an agreement readied through corres-
pondence, where the terms of the contract have been in all respects
agreed upon. This rule does not apply to the facts in the instant
case. The plaintiff's pleading filed in this action is not based
upon a lease, as contended for, but is based solely and founded upon
an action to recover damages for failure to execute a lease,

This oourfe is controlled by the plaintiff's pleadings, and
in this case there is lack of evidence to support plaintiff's state-
ment of claim upon the subject of dmaaages# Ko agreement having been
formally executed, and the evidence being silent upon the damages, if
any, sustained by the plaintiff at the time of the breach lihen the
defendant failed to exicute the lease, the court was not jvistified
tn entering the judgment for the amount of the rent due under a pur-
ported lease, and for that reason the judgment was erroneously entered
by the court. The judgment accordingly will be reversed and the
cause remanded.



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37623 / X'" / ,y

IRIGHT & OOMPAHY, a oorporatioj^, ' ) APPIAX* FROM

Plaintiff - Appellee, ) f I



Defendants - Appellanta, ) £y t^ f\ f /A ,0: 't ^-l


The defendants appeal from a jxidgment in the sum of $4(X),
entered in the Municipal Court of Ohioago in favor of the plaintiff
in a non-jury a«tion upon evidence heard before the trial court*

The plaintiff's statement of claim is for the recovery of
|410«59, on an account for goods, wares and laerohandise sold and
delivered ty the plaintiff to the defendants. The defendants filed
an affidavit of merits in which they denied that they were indebted
to the plaintiff, or that they bought or received from the plaintiff
any goods, wares and merchandise on an account stated*

Plaintiff is engaged in the coal business* One Emil
Ehrenberg was the owner of a building known as the Olifton Avenue
Building, and was a former customer of the plaintiff* This owner
wished to buy coal and spoke to Kenneth Johnson, who was in charge
of plaintiff's coal yard, about the purchase of coal for the Olifton
Avenue Building on credit. He was refused credit unless Ehrenberg,
the owner, could get scaaeone to guarantee payment, Shrenberg then
told Johnson that he Shrenberg had made a deal in connection with
the building, and if Johnson would telephone Raymond Moore at the
office of Harry Bairstow, Moore would tell Jo^Jnson about the deal,
Johnson telephoned Moore and asked him to 0, K, Shrenberg' s account,
and Johnson testified that Moore said, »1 have the authority to
authorize you to charge the coal to Harry Bairstow," This statement
is denied by Moore, The fact that Johnson had a telephone conversation



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was admitted by him. There ie also evidence by one Hubbell,
treasurer of the plaintiff corporation, th?;t he talked with Moore,

Online LibraryIllinois Appellate CourtIllinois Appellate Court Unpublished Opinions: first series (Volume Ill. App.v.279) → online text (page 64 of 91)