sary for Landis, the complainant, to go to Cerro Gordo; that he left the stock of goods in care of his clerk, with directions to deliver to Wolf, the defendant, one of the three keys to the store when he should bring to the clerk a deed to the land; that Landis went away, and returned Monday, March 25th, when he learned that Wolf had left with the clerk a quitclaim deed purporting to be to 166.14 acres of land in Clay county, but that the deed did not properly describe the land; that Landis examined the deed, and informed Wolf that he would not accept it. The bill also alleges Wolf did not furnish Landis an abstract of title, so that the latter did not know whether Wolf owned the land or not: that Landis informed Wolf he could not have the goods until he complied with his agreement and paid therefor. The bill charges that Wolf was fraudulently seeking to get possession of said goods without paying for them, and that he was an intruder and trespasser upon Landis' rights. The bill prayed that Wolf be compelled to account for the goods sold, and that he specifically perform the terms of his contract. The bill was answered by Wolf, admitting that Landis resided at Sullivan, and owned a retail stock of merchandise, but denied that he was the owner thereof when he brought the suit. The answer admits that the boots and shoes were the property of Landis, and also admits the execution of the contract on March 9th. The answer alleges that Landis took possession of Wolf's farm, and leased the same, and took possession of the personal property on the farm, and sold and disposed of a part of the same. The answer charges that the defendant Wolf had complied with the terms of the contract; admits that Wolf was to pay Landis $800 in addition to the personal property, consisting of the farm, stock, etc., and to pay for the fixtures at the invoice price, by giving the note of himself and wife and chattel mortgage on the fixtures, as soon as the amount could be ascertained; that Landis accepted U. S. Wolf for the $800, and caused U. S. Wolf to enter into a written agreement to pay the $800, and thereby released defendant from the payment thereof. The answer admits that Wolf was to give Landis a mortgage on the fixtures for the invoice price thereof, and states that the invoice had not been completed when the suit was brought, and that he requested Landis to complete the same before bringing the suit; alleges that when Landis left for Cerro Gordo he gave his keys to his clerk, Foster, and told him that when Wolf brought the deed to him Foster should deliver to Wolf the stock of goods, the keys, and all the money received since March 9th. The answer states that Wolf delivered the deed to Foster, and Foster delivered to Wolf the keys and possession of the stock of goods; that he was in continuous possession of the same when the suit was brought that he (Wolf) was at that time the owner of the stock; that the deed

left with Foster was a quitclaim deed, and properly described the land; that he (Wolf) was ready to pay the balance of the purchase price, if any remained unpaid, as soon as the amount was ascertained. Upon the trial of the present suit upon the injunction bond the bill in the chancery suit and the answer thereto were introduced in evidence.

John R. Eden, J. K. Martin, and E. J. Miller, for appellants. W. K. Whitfield and Mills Bros., for appellee.

MAGRUDER, J. (after stating the facts). The damages claimed by appellee in his declaration are, first, those alleged to have accrued to appellee during the time the injunction remained in force-that is to say, about eight months-upon the alleged ground that appellee was prevented from merchandizing and making profit on the stock of dry goods in question, and from carrying on his business as a merchant; and, second, fees of his solicitors and counsel in and about the dissolution of the injunction, alleged by appellee to have been incurred and paid by him.

1. It is claimed by appellants that the court below erred in allowing appellee any damages for injury to his business and loss of profits therein while the injunction was in force. It is well settled that in such cases damages which are remote, speculative, and incapable of ascertainment cannot be allowed, but where, by the issuance of an injunction, a business is unavoidably suspended, and thereby injured, damages may be allowed. It may not be possible to show by demonstration the precise extent of such damages, but profits for a reasonable period next preceding the time when the injury was inflicted, may be taken as the measure of such damages, and as the basis of an estimate thereof, leaving the other party to show that by depression in trade or other causes they would have been less. Chapman v. Kirby, 49 III. 211; Greene v. Williams, 45 Ill. 206; Gerard v. Gateau, 15 Ill. App. 520. In the case at bar there was evidence tending to show that the business of appellee was injured by reason of the issuance of the injunction. The final decree of the court in the chancery proceeding for the specific performance of the contract dismissed the bill and dissolved the injunction. The dismissal of the bill and the dissolution of the injunetion were conclusive that the injunction was wrongfully sued out. Cummings v. Mugge, 94 Ill. 186. The only question, then, in the present case, is as to the extent to which the appellee was injured by reason of the issuance of the injunction. Upon this branch of the case no error of law was committed by the trial court of which the appellants can complain, because the propositions of law upon this subject submitted by the appellants to the court were held to be the law in the case. The trial court held "that under the breach alleged in the declaration char

ging that plaintiff incurred damages to his business as a merchant, he is not entitled to recover anything for anticipated profits in carrying on his business." The court also held for the appellants another proposition of law to the following effect, to wit: "That plaintiff cannot recover in this case for prospective gains and profits that might result from his business as a merchant, or other damage than that arising solely from the issue and service of the injunction writ, and its effect upon his business as a merchant."

2. The evidence shows that when the injunction in the chancery case was served upon the defendant therein, the present appellee, Wolf, he employed two attorneys to procure for him a dissolution of the injunction, and agreed to pay them $500-$250 apiece. A motion was made to dissolve the injunction for want of equity appearing upon the face of the bill, but this motion was overruled by the court. The attorneys employed then proceeded to take testimony before the master, and a final hearing of the cause was had. The injunction was not dissolved until such final hearing, which resulted in the dismissal of the bill. This court has held in many cases that, where counsel fees are necessarily incurred in procuring the dissolution of an injunction, they may be allowed as damages, but that where the injunction is merely ancillary to the principal relief sought by the bill, and its dissolution is only incidental to the defense made, and the counsel fees are incurred in defending the suit generally, they cannot be assessed as damages. Walker v. Pritchard, 135 III. 103, 25 N. E. 573, 11 L. R. A. 577; Jevne & Almini v. Osgood, 57 Ill. 340; Elder v. Sabin, 66 Ill. 126; Alexander v. Colcord, 85 Ill. 323; Blair v. Reading, 99 III. 600; Milligan v. Nelson, 188 Ill. 139, 58 N. E. 938. In the latter case of Milligan v. Nelson, supra, we said: "It is well settled in this state that on suggestions damages will not be allowed for services rendered in the general defense of the suit, but only such as have been incurred for the purpose of getting rid of an injunction on a motion to dissolve, and not upon final hearing." In Jevne v. Osgood, supra, it was said: "It [the statute] was only intended to reimburse the defendant for moneys which he has paid, or for which he has become liable, on the motion to dissolve." In Elder v. Sabin, supra, it was said: "The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer's fees could only extend to the motion to dissolve the injunction." In Blair v. Reading, supra, we said: "The propriety of suing out the injunction was never called up or considered by the court until the case was finally considered on its merits. Hence the extra expense of a separate hearing of a motion to dissolve was not incurred." In the case at bar the cause came on for a

final hearing after testimony was taken an the report thereon had been made by th master to the court. Upon such final hear ing, the court heard evidence, and considere the question whether the complainant in th bill was entitled to a specific performance o the contract or not. The main question in volved in the case was whether the defend ant in the chancery suit had performed th contract for the purchase of the stock o goods, so as to be entitled to their possession The court held that the complainant was no entitled to the relief prayed for, and, in view of the issues made by the bill and answer must have held that the defendant had spe cifically performed the contract. Incidentally to the determination of the main questionwhether or not there had been a specific per formance of the contract-the court upon the final hearing dissolved the injunction. The services of counsel were performed, not merely for the purpose of securing a dissolution of the injunction, but in defense of the suit upon the charges set up in the bill. Damages cannot be assessed for services of counsel in thus making a general defense of the suit. As was said in Jevne v. Osgood, supra, "To give the statute such an unreasonable construction would render it an instrument of great oppression." In its rulings upon the evidence and upon the propositions of law submitted to it the trial court ignored the rule thus announced. It allowed as damages $500 as counsel fees, which were earned, not merely in procuring a dissolution of the injunction, but also in making a general defense of the suit. It is true that the testimony introduced on behalf of appellee tended to show that his contract with his lawyers was a contract to procure a dissolution of the injunction. But the mere fact that it was called a contract to procure a dissolution of the injunction would not have the effect of limiting the services of the attorneys to securing that object, if, in fact, as the testimony shows, such services were directed to a general defense of the suit, as well as to a dissolution of the injunction. The court refused to permit evidence to be introduced for the purpose of showing how much of the services rendered were necessary to procure a dissolution of the injunction and how much of such services were rendered in the general defense of the suit. The court also refused to hold, as the law in the decision of the case, propositions submitted to the court by the appellants below to the effect that appellee was not entitled to recover for fees paid or contracted to be paid to his counsel in the chancery cause brought for a specific performance and injunction, if the services of said counsel were directed to a defense upon the merits of the bill, although including and involving a dissolution of the injunction. The court also refused to hold as law a proposition submitted by the appellants to the following effect: "The court holds the law to be that, when a claim for attorneys'

fees is made, and the evidence does not disclose how much fees are incurred or paid on a motion to dissolve the injunction, but does disclose that $500 was paid upon a motion to dissolve and upon a final hearing together, then the plaintiff cannot recover for attorneys' fees." We are of the opinion that the court erred in this regard. Where the evidence makes no discrimination between services rendered in the case generally and services which were strictly necessary to procure a dissolution of the injunction, there is no evidence upon which the assessment of damages can be based, and therefore the allowance of damages in such case cannot be sustained. Lambert v. Alcorn, 144 Ill. 313, 33 N. E. 53, 21 L. R. A. 611.

We concur in what is said by the Appellate Court in its opinion deciding this case as to the sustaining by the trial court of a demurrer to the amended sixth and seventh pleas. In such opinion it is said: "By these pleas it was sought to relieve appellants from all liability under the injunction bond, except nominal damages, because appellee began suit in attachment against Landis, and had the attachment writ levied upon the goods after the service of the injunction writ. ・・・ The scope of the injunction writ was to restrain appellee from selling the goods under an asserted right by purchase. It had no reference to an enforcement of any right which he might have had against Landis as a creditor. He was by the injunction left free to exercise by attachment, as creditor, any right which any other creditor might exercise. The suing out of the attachment writ therefore was not in violation of the injunction. * The pleas present no bar to the recovery of damages."

For the error committed by the trial court in allowing counsel fees as part of the damages the judgments of the appellate and county courts are reversed, and the cause is ren anded to the county court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

LANDT et al. v. McCULLOUGH. (Supreme Court of Illinois. Dec. 16, 1903.) LANDLORD AND TENANT-ACTION ON LEASELEASE IN EVIDENCE-ALTERATIONS-MATERIALITY-EXPLANATION - VARIANCE - NEW TRIAL MOTION.

1. In an action for rent, the lease introduced in evidence by plaintiff originally provided that the lessor should have the right to purchase improvements at the termination of the lease, and it was provided that the valuation of the improvements should be determined by each party choosing a real estate dealer to fix it, but there had been interlined between the word "estate" and the word "dealer" the words "owner or." It originally provided that it should be sufficient service of demand, for the purpose of terminating the lease, to leave a copy with the lessee, but a clause had been inserted authorizing notice by publication. A typewritten page had been inserted, different in appearance from the rest of the instrument, having

reference to the right of the lessor to purchase the improvements, providing for an extension of the lease, and providing that it should not be assigned during the first 25 years without the consent of the lessor. The lease also originally provided that at the expiration of its term, or at its termination by forfeiture or otherwise, the lessee "will yield up said demised premises in good condition together with all the buildings and improvements thereon." But the words "together with all the buildings and improvements thereon" were erased. Held, that the alterations, etc., were material, and it was error to admit the lease in evidence without requiring the lessor to explain them.

2. In an action on a lease the declaration alleged, in hæc verba, an unsigned and unacknowledged lease, but the lease introduced in evidence purported to have been executed by the parties. Plaintiff was given leave to amend the declaration so as to prevent a variance, but he failed to do so, and the variance was assigned as an error on a motion for a new trial and on appeal. Held, that the objection on the ground of variance was good on appeal.

3. Practice Act, § 25 (Starr & C. Ann. St. 1896, c. 110, par. 26), gives the defendant the right, where plaintiff is allowed the privilege of amending his declaration, to make an affidavit that in consequence thereof he is unprepared to proceed with the trial. Held, that defendant must state in his affidavit what particular fact or facts he expects to prove.

4. A continuance is to be refused only where the court is satisfied that a continuance is not necessary after examining the affidavit, and it was error to refuse leave to present the affidavit, without reference to whether it showed cause for continuance.

5. In an action for rent, counsel for plaintiff stated that he had served notice on defendants to produce at the trial an assignment of the lease to defendants, and the consent of plaintiff to such assignment; but defendants stated that they did not have the instruments, and no showing was made that defendants had ever had possession of them. Held, that it was error to admit secondary evidence; possession by defendant not having been shown, and no proof made of service of notice.

6. Where, in an action for rent, the declaration alleged a written assignment of the lease to defendants, and plaintiff, in order to show the assignment, introduced a bond signed by defendants, which, referring to the lease, described it as "assigned by" S. to defendants, the recital was insufficient to sustain the declaration. 7. Where, in an action on a lease, the declaration alleged a written assignment to defendants and a written consent of plaintiff, drafts of a proposed assignment of the lease and of a proposed consent did not establish the allegation.

8. Where the written reasons on which a motion for a new trial are based embrace objections to the admission of evidence, such objections are subject to review on appeal.

9. Practice Act, § 56 (3 Starr & C. Ann. St. 1896, c. 110, par. 57), provides that a party moving for a new trial shall, before judgment entered, or during the term that it is entered, file the points in writing specifying the grounds, and that judgment shall be stayed until the motion can be heard. As soon as the court instructed the jury to return a verdict for plaintiff, defendant moved for a new trial, and the court refused to allow the motion "to take its usual course," but said he would dispose of it right away. Defendant suggested as a reason for his motion that the evidence did not entitle plaintiff to recover. The court said he would hear the reasons, and defendant's counsel replied that he would not urge them, "for fear you will grant it." After the denial of the motion, and at the same term, defendant filed his written reasons. Held, that there was no waiver by defendant of his right to insist on the

motion for a new trial, and on the reasons therefor.

10. Where the bill of exceptions on appeal shows that a motion for a new trial was made and overruled, and an exception taken, and the written reasons are properly filed and noticed in the bill of exceptions, they are reviewable on appeal.

Appeal from Appellate Court, First District.

Action by James C. McCullough against Charles C. Landt and another. From a judgment of the Appellate Court (103 Ill. App. 668) affirming a judgment in favor of plaintiff, defendants appeal. Reversed.

This is an action in assumpsit, commenced on January 18, 1901, in the superior court of Cook county by the appellee against the appellants, Charles C. Landt and Will H. Moore, upon a lease dated March 20, 1889, alleged to have been made by the appellee to one James M. Stebbins, leasing certain premises therein described for a term of 50 years from the 1st day of May, 1859, and ending the 30th day of April, 1939, at an annual rental of $1,050, payable in equal quarterly installments, of $262.50 each, on the 1st days of August, November, February, and May in each year for the first 16 years. The lease describes the premises therein leased as being in the town of Lake, in Cook county, and contains, among other covenants, a covenant for the erection of buildings on the premises by the lessee. The declaration charges that "on the 20th day of March, A. D. 1889, the plaintiff and one James M. Stebbins entered into a certain instrument in writing, commonly called a 'lease,' and bearing date of that day, a copy of which is in words and figures as follows, to wit." The declaration then sets forth in hæc verba the copy of an unexecuted lease; that is to say, a copy, which does not appear to be signed by either of the parties named in the body of the lease. The declaration further avers that afterwards, on October 12, 1892, Stebbins assigned, transferred, conveyed, and set over .to the defendants below (the appellants here), Landt and Moore, all his title, interest, claim, and demand in, under, and to said instrument, in writing, and that the plaintiff below (appellee here), McCullough, consented to said assignment in accordance with the terms of said instrument in writing. The declaration further sets forth that the defendants entered into possession of the premises described in said instrument in writing, and undertook and promised to pay the plaintiff, his heirs or legal representatives, the yearly rent at the times aforesaid, and that during the first 16 years of the term thereby granted, to wit, on January 17, 1900, $5,000 of the rent, accrued from the 1st day of November, 1895, was in arrears and unpaid, "contrary to the tenor and effect of the said instrument in writing." The defendants below filed a plea of the general issue, and an affidavit of merits as to the whole of appellee's demand.

The case was tried on the short-cause calendar, and at the conclusion of the evidence the jury, by direction of the court, found a verdict for the appellee, McCullough, and assessed his damages at $3,750.50. The appellants, Landt and Moore, made a motion for a new trial, which was overruled. Judgment was entered upon the verdict, and an appeal was prayed and allowed to the Appellate Court. The Appellate Court affirmed the judgment of the superior court of Cook county, and the present appeal is prosecuted from such judgment of affirmance.

The judgment in this case, as to the material parts thereof, is as follows: "Whereupon come the jurors, * who,

after hearing all the evidence adduced, say: We, the jury, find the issues for the plaintiff, and assess the plaintiff's damages at the sum of $3,750.50.' Whereupon the defendants submit herein their motion for a new trial in said cause. After arguments of counsel, and due deliberation by the court, said motion is overruled, and a new trial denied. Therefore it is considered by the court that the plaintiff do have and recover of and from the defendants his said damages of $3,750.50, in form as aforesaid by the jury assessed, together with his costs and charges in this behalf expended, and have execution therefor. Whereupon the defendants, having entered their exceptions herein, pray an appeal," etc.

The bill of exceptions shows the following: "Plaintiff's Attorney: The plaintiff rests. Defendants' Attorney: We will rest, too. * Plaintiff's Attorney: Now, if the court please, I ask the court to give the jury this instruction. * I will waive my opening. Defendants' Attorney: Will you waive your speech entirely? Plaintiff's Attorney: I will reply, if there is anything necessary, but I do not understand there is anything to be said to the court or the jury. Whereupon the court instructed the jury to render a verdict in favor of the plaintiff for the sum of $3,937.50. Defendants' Attorney: If your honor please, I enter a motion for a new trial, and I suppose it will take its regular course. The Court: I will dispose of it right now. (To the jury) You gentlemen may go until to-morrow morning at ten o'clock. I will dispose of the motion for a new trial now. Defendants' Attorney: I do not think I care to urge the reasons that I have, on the court, further than to say that the evidence does not entitle them to recover any verdict from the state of facts. The Court: I will hear your reasons now. Defendants' Attorney: I think I will not urge my reasons for a new trial upon the court, for fear you will grant it. Plaintiff's Attorney: Then we move for judgment, of course, upon the verdict. The Court: If that is all to be said on the motion for new trial, the motion will be overruled. [Then follow a copy of the lease introduced in evidence, together with a statement of the erasures,

interlineations, and insertions in the same, and also a copy of an unsigned assent to the transfer of the lease by Stebbins to Landt and Moore, and the unsigned copy of a transfer of the same, and also a copy of a bond for $5,000 executed by Landt and Moore to the appellee.] Which was all the evidence introduced upon the trial of the above-entitled cause. And thereupon the court gave to the jury on behalf of the plaintiff the following instruction, to wit: "The jury are instructed that, under the law and the evidence in this case, the plaintiff is entitled to recover, and you will find the issues for the plaintif, and assess his damages at the sum of $3,937.50;' to the giving of which instruction the defendants, by their counsel, then and there excepted. And the defendants, by their counsel, then and there asked the court to give the following instruction, to wit. [Then follows an instruction asked by the defendants below.] But the court refused to give this instruction to the jury, to which decision of the court in refusing to give the same to the jury the defendants, by their counsel, then and there excepted. And thereupon the jury rendered a verdict against the defendants for the sum of $3,937.50. Whereupon

the defendants, by their counsel, then and there moved the court to set aside the verdict so rendered and grant a new trial of the cause, and filed the following reasons in writing for their motion, to wit.

* *

And for grounds of their motion the defendants show to the court the following, to wit: (1) That the said plaintiff has not made out any case entitling him to recover in said cause, by the evidence submitted by him to the jury therein; (2) that the verdict of the jury is not based upon any evidence whatever which entitles the said plaintiff to recover; (3) that the court erred in instructing the jury to find for the plaintiff in said cause; (4) that the court admitted on the trial improper evidence on the part of the plaintiff: (5) that the court erred in refusing to give to the jury the instruction asked by the defendants; (6) that the court erred in admitting in evidence the lease on which the said plaintiff relied for his recovery, inasmuch as there was a variance between it and the lease declared upon in the declaration, to which the attention of the court was specifically called at the time the objection wis made; (7) that the court erred in admitting in evidence the alleged assignment of said lease, both because the plaintiff did not show himself competent to testify in reference thereto, and because it appeared therefrom that said assignment was never executed by the said James M. Stebbins; (8) that the court erred in admitting in evidence the alleged consent to such assignment on the part of the said plaintiff, inasmuch as it appeared therefrom that the same had never been executed by him; (9) that the verdict of the jury is contrary to the law and the evidence in the case. But the court

denied the motion, and gave judgment on the verdict against the defendants, to which decision by the court in denying such motion the defendants, by their counsel, then and there excepted."

The amount of the verdict and judgment, as stated in the record made up by the clerk, is $3,750.50, while the amount of the verdict mentioned in the bill of exceptions, which the jury were instructed by the court to render, is $3,937.50; and the bill of exceptions states that the court gave judgment on the verdict for the latter amount.

Follansbee & Follansbee, for appellants. E. W. Adkinson, for appellee.

MAGRUDER, J. (after stating the facts). Upon the trial below, appellee introduced only one witness (the appellee), besides the documentary evidence herein referred to, and the appellants introduced no evidence whatever.

1. Appellee introduced in evidence the lease set out in the declaration. To its introduction the appellants objected upon the ground that there were material erasures, interlineations, changes, and alterations apparent upon the face of the lease, and that it was the duty of the appellee to explain these. The objection was overruled by the trial court, and the lease was admitted in evidence as it was, without such explanation. The objection was well taken, and should have been sustained. These alterations and interlineations and erasures in the lease were pointed out by counsel for the appellants as appearing upon the face of the lease itself, and, although some of them may have been immaterial, many of them were material alterations, interlineations, and erasures. It would extend this opinion to too great a length to point out all of these alterations, erasures, and interlineations, but a few of them which were material may be noticed. By the terms of the lease the lessee therein named, Stebbins, agreed, as security for the rents and covenants therein contained, to erect and complete upon the premises on or before the 1st day of May, A. D. 1893, a block of good and substantial three-story (at least) firstclass brick or stone buildings, not less than five in number. It was also agreed that at the termination of the leasehold the lessor should have a right to purchase the buildings and improvements then upon said ground of the lessee, and, in case the lessor and lessee could not agree as to purchase and sale, then said ground was to be revalued in a certain manner therein provided. The lease, as originally drawn, provided as follows: "The manner of revaluation shall be as follows: The lessor and lessee shall each choose a competent real estate dealer in the city of Chicago to revalue said ground," etc. Between the words, "estate" and "dealer," there were interlined the words "owner or," so that after this interlineation the lease read as follows: "The lessor and lessee shall