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In this respect the terms of the contract to pay a commission of 10 per cent. on the are similar to those in contracts made with sale of all wines instead of 25 per cent, as other concessionaires, such as those with originally provided in the contract. No Morris Beifeld for a reproduction of the provision was made in the contract exemptChicago Fire, the Mystic Maze, and Pharaoh's ing wines or other drinks served at banquets Daughter. The Chicago Fire concession con- from the provisions of the contract. Neither tract describes the space to be used as a is it claimed that any modification of the "space leased 100 by 100 feet, at the north contract, based upon a valuable consideration end of the White City, with entrance,” the was subsequently made. In the absence of Mystic Maze as "the space occupied during such showing the contract as originally the season of 1906 by the show known as made must govern. For this reason we are Jeweli Manikins," the Pharaoh's Daughter of the opinion that the White City Company as "the space to be used being the space oc- should be allowed the commissions provided cupied during the season of 1905 and 1906 for in the contract on all sales of liquors, includthe Johnstown Hood.” That the privileges ing those served at banquets. granted by the latter concession contracts (11] As to the claimed modification of the are confined to the space specified in the con contract, defendants in error do not contend tracts we believe cannot be seriously ques- but that champagne and wines were included tioned. If so, why does not the same rule within the provisions of the contract as apply to the hotel company contract ? The originally drawn, nor do they claim that any language of the contracts in this respect is fraud or imposition was practiced upon the similar, and we find no other language in hotel company in the making of the concontract A which would warrant us in plactract, or that it was not fairly made and ening any different construction upon such tered into between the parties. The only language in that contract and similar lan-claim advanced is that the hotel company guage used in the other concession contracts. made a mistake in agreeing to pay such a Its language is equally as specific as that of high rate of commissions for the privilege the other concession contracts, as, after de granted. The same argument would probably scribing the land leased, it further states be advanced by every concessionaire if by so the “exact space" is shown on the ground doing he could have his rate of commissions plans of the company. That space, as we

reduced. Such an argument does not comunderstand the record, is the space now oc- mend itself to this court as good ground for cupied by the College Inn building. Under altering a contract fairly made and entered such circumstances we can hardly construe into, in the absence of fraud or imposition the words "exact space” as meaning any in the making of the contract. There is no where on the White City Company's premis- record evidence of any such change in the es, and we do not so construe the words.

contract, and there is a very serious dispute [10] Complaint is further made that no

in the evidence as to whether such matter commissions were paid on wines served at the

was ever taken up with the board of directbanquets; on milk sold by the glass when ors and considered by them, either formally not served as a part of a meal; on ice cream; feld practically owned and controlled both

or informally. In view of the fact that Beiice cream cones, soda water, orangeade, and a soft drink known as “natural ozone"; on corporations, that the contract as originally confetti; and on candy called "flutf-fluff," made seems to have been fairly made, and sold on the premises by the hotel company.

there is no evidence in the record to show As to the wines, during the season of 1905 that any mistake was made in the contract a number of banquets were held at the White except that it is now claimed the hotel comCity at which wine was served as part of a pany is paying a higher rate of commissions meal, on which no commissions were paid by on such commodities than it should have been the hotel company. At the subsequent ban-required to pay, or that any fraud or imquets held during the years 1906 and 1907 position was practiced upon it in making the White City Company was credited with a

such contract, and no affirmative relief is commission of 10 per cent of the cost price sought by it in that respect from the White of the wines served at such banquets. Plain-City Company by a cross-bill, we hold that tiff in error contends the contract price of the hotel company should pay the White 25 per cent. of the gross receipts from all City Company the commissions at the rate drinks should govern on all wines served, of 25 per cent. upon the gross receipts of all either as a part of a meal or otherwise. De such wines sold on the premises while confendants in error contend that banquets tract A is in force between the parties. were often served at a very low price for As to the milk sold by the glass on which advertising purposes; that there was no prof. no commissions were paid, besides what was it in such banquets, and therefore the hotel sold in the College Inn building, the hotel company should not be required to pay any company sold milk by the glass during the commissions on wines served at such ban- years 1906 and 1907 at a booth known as the quets during the year 1905; and further, that "Wooden Cow," on space not covered by the a modification was made of the contract by grant in contract A. This milk was not sold

except on Saturdays and Sundays, when it forms was an eatable, and therefore exempt was served with sandwiches sold at the same from paying any commissions under the booth a short distance from where the milk terms of contract A. The evidence further was sold. Defendants in error contend the shows that during the first part of the seamilk thus soid was an eatable within the son of 1905 the hotel company sublet the provisions of contract A, and therefore ex- privilege of selling ice cream in its various empt from payment of any commissions un- forms, other than in the College Inn buildder the terms of that contract. As we con- ing, to other parties, from whom it received strue the contract, it is not necessary to de- a commission of 50 per cent on the gross ternine whether or not the milk so sold is an receipts of all such sales, and that it crediteatable within the purview of such contract, ed the White City Company with one-half for the reason it was sold at a different place of the amount received from such sublessees. from that granted by the provisions of such The evidence of Howse shows that ice cream, contract, and in a booth constructed and fur- when served otherwise than as a part of a nished by the White City Company, for which meal, is never included within the terms of it was entitled to receive a reasonable rent a contract granting to a concessionaire the or commissions on sales made therein in lieu exclusive right of the sale of eatables in of such rent. The trial and Appellate Courts amusement parks. The contract was also so both held that the hotel company should pay construed, in the first instance, by the para commission of 25 per cent. on all sales made ties to it. In construing contracts the main at such place, except where the milk was sold thing is to ascertain and give effect to the with sandwiches. We think, in view of the intention of the parties. This intention is to fact that the hotel company had no right, by be ascertained from the language of the convirtue of its contract, to sell eatables at such tract itself and the circumstances and surplace without paying a reasonable rental roundings of the parties at the time it is for the space occupied for such purpose, that made. In case of doubt as to the meaning it should have been required to pay a com

of the language used, the contemporaneous mission of 25 per cent. on all milk sales made construction placed upon it by the parties is at such booth.

entitled to great weight. It is apparent As to water, orangeade, natural ozone, and from the provisions of contract A that from sundry candy sales, such as fluff-fluff, we the first it was the intention of the parties think those articles are fully covered by the that Beifeld or the hotel company should Provisions of contracts A and B that the have the exclusive right of conducting a hotel company should be required to account restaurant on said premises and selling to the White City Company for its commis- therein all such articles, excepting liquors sions on such sales. Contract A covers the and soft drinks, as are usually and custosale of soft drinks, and fixes a rate of com- marily served as parts of a meal, without missions to be paid thereon, and contract B paying any commissions on such sales to the for that of the candy.

White City Company. This was one of the The confetti sold during the last few days things which induced Beifeld to enter into of the seasons of 1905 and 1906 was not cov

the White City project; but we do not think ered by the terms of any contract. The

it was the intention of the parties that he hotel company has voluntarily credited to might exercise that privilege wherever he the White City Company a commission of chose on the grounds, or at any other place 25 per cent of the gross receipts from such than that mentioned in contract A, or that it sales. The plaintiff in error contends that

was the intention of the parties that sales of that was not a reasonable commission. The such articles as ice cream in its various evidence shows that by the terms of most forms, when not served as part of a meal in contracts with concessionaires they were without paying a com

the College Inn building, should be made only required to pay a commission of 25 per to the White City Company. This was the

ission on such sales cent. on their gross receipts for the concessions granted. Since 1906 the sale of confetti construction placed on the contract by the has been handled by the White City Com- parties themselves when these articles were pany.

sold through the sublessees, and, we think, Under the circumstances we think the 25 per cent. commission allowed and paid we are therefore of the opinion that the

is the proper construction of the contract. by the hotel company to the White City Com- White City Company should have been paid pany is suficient, but that it should have a commission of 25 per cent. upon all sales of been paid to the White City Company in- ice cream, in its various forms, on the stead of credited on the construction account. grounds, at places other than the College

[12] The evidence shows that during the Inn. seasons of 1905, 1906, and 1907 ice cream Another item is the dairy lunch. Prior to by the dish, in cones, and in ice cream sodas the year 1907 a lunch was served in what was sold by the hotel company at various was known as the balcony of the College Inn places on the White City grounds on which building. In January, 1907, the directors no commissions were paid or allowed to the adopted a resolution granting the hotel comWhite City Company. Defendants in error pany the right to use space under the ballcontend that ice cream in these various room for the purpose of conducting a lunch

room. The resolution made no provision for trom whom the hotel company purchased the payment of rent for this place. Since supplies, for the reason that he wanted those the opening of the season of 1907 the hotel houses to place their advertisements on the company has conducted a lunch there known menu cards of the hotel company. It further as a "dairy lunch," but has paid the White appears that several business houses which City Company no rent for the use of this had taken advertising contracts with the space or commissions on the sales made White City Company's magazine canceled thereat in lieu of rent. The evidence shows their advertisements with it for the reason a fair and reasonable rent for such space that they did not care to carry advertise. would be from $2,000 to $2,500 per year. De ments in both the White City Company's fendants in error contend that the conduct- magazine and on the menu cards and musical ing of a dairy lunch by the hotel company programs. The menu cards were necessarily was within the purview of the terms of con- furnished by the hotel company, and were an tract A, and therefore it was not required to expense borne by it in connection with its pay any commissions upon sales of such restaurant and eating concessions. Such adlunches; also that there was an indirect vertisements as it was able to get by printbenefit to the White City Company by reasoning the same on the menus were a mere 10of its furnishing the patrons with a quicker cident, for which it should not be made to and cheaper lunch than they could otherwise account to the White City Company. The have secured at the College Inn building, by musical programs contained advertisements reason of which its patronage would be con- and the lists of the selections played from siderably increased. While this may all be day to day by the band employed by the true, we do not think it offers sufficient White City Company, which gave concerts in ground for allowing the hotel company to oc- the plaza of the White City. If the advercupy valuable space in the White City with tising on these programs was of value the out paying any rent, or commissions in lieu White City Company should have received of rent, for the use of such space. Every the benefit therefrom, and its officers should amusement added to the park might be said not have turned over such a valuable concesto have resulted in an indirect benefit to the sion to the hotel company for nothing. We White City as tending to increase its patron- think that the circuit court and Appellate age. As we have already construed contract Court rightly held that the White City ComA, it applied merely to the space granted to pany was entitled to 25 per cent of the gross the hotel company by that contract, and amount received from advertising on the muwould not, and does not, cover the sale of sical programs. eatables at other places on the grounds ex

(13) The evidence shows that the commiscept to prohibit other persons or concession- sions derived from the sale of candy, peaaires from making such sales on the White

nuts, and popcorn under contract B were not City premises. Where the hotel company paid dally to the White City Company in acused the property of the White City Com. cordance with the terms of that contract, but, pany in making such sales, we think it should be required to account to the White Instead, were credited to it on the construcCity Company for the reasonable rental tion account. Plaintiff in error contends the value of such space or property used by it, White City Company is entitled to interest on based on the usual and customary commis such amounts so wrongfully credited to it sions paid for such privilege.

upon the White City construction account Complaint is also made that no commis- from the time they should have been paid in sions were paid for the advertisements on the cash to the White City Company. By the menu cards used in the College Inn and on terms of contract A the hotel company was musical programs distributed at the plaza. to be reimbursed for the expense of conThe advertising on menu cards and musical structing the College Inn building entirely programs was not covered by the express

out of the commissions due the White City terms of any contract between the hotel com Company on the sale of drinks under that pany and the White City Company. This contract. Contract B was entered into after much is admitted in the answer of Joseph contract A was made, and specifically proBeifeld and the hotel company. It further vided for the daily payment of the commis

The commisappears that during the years 1905, 1906, and sions due under that contract. 1907 the hotel company derived a revenue of sions due under contract B were wrongfully something like $14,765 from this source. applied to the construction account of the During the first year the White City Com- hotel company. At that time the White City pany published a magazine called the White Company was paying interest at the rate of City Magazine, for which it solicited adver-6 per cent. upon an outstanding bonded intisements from the various business houses in debtedness of $300,000. The action of the hoChicago. This magazine was conducted at a tel company in withholding the money due loss to the White City Company. Beifeld, as under contract B was wrongful, and we think president of the White City Company, em- it should be required to pay interest on such ployed the solicitor of advertising for the sums wrongfully applied on the construction magazine, and instructed him not to call up- account, at the legal rate of interest, from

received and should have been turned over to , upon for a reversal of the decree in that the White City Company,

court. However, it does seem from the ma. [14] Another item complained of is the al- jority opinion of the Appellate Court that leged indebtedness from the Chicago Fire this item was referred to in the oral arguExhibition Company to the White City Comments in that court, but whether by coupsel pany for a concession granted to it for the tor Joseph Beifeld and the hotel company years 1905, 1906, and 1907. The items com- or by counsel for the White City Company plained of as constituting this indebtedness the record does not show. No brief and consist of electric lighting and other ex- argument appears to have been filed in that penditures used in operating the concession, court by any one for the White City Comamounting in all to approximately $4,200. pany, It is alleged that this sum is now due from The course pursued in the lower court was the Chicago Fire Exhibition Company to the for each party to file exceptions to that part White City Company, and that no effort has of the decree of which he complained. The been made by the officers of the White City White City Company filed no exceptions to Company to collect the same. The Chicago any portion of the decree as entered. The Fire Exhibition Company was made one of defendants in error Joseph Beifeld and the the parties defendant to this bill, and the hotel company filed joint exceptions—46 in decree finds that amount should be account- all in the twenty-seventh of which they ed for by that company to the White City took exception to that part of the decree Company, with interest at 5 per cent. per which finds that plaintiff in error has incurannum from October 15, 1907. No appeal red liabilities for large sums of money in has been perfected by that company from the and about the prosecution of this suit, and decree. It is therefore final and conclusive decrees the same a proper charge on the fund against it. The item therefore requires no recovered by the White City Company in further consideration from this court at this suit.

The errors assigned which are this time.

claimed to have raised this question in the [15] By his bill filled in the circuit court Appellate Court are the second of the joint the plaintiff in error asks that he be reim- errors assigned by Joseph Beifeld and the bursed, out of the funds recovered, for the hotel company in that court, as follows: amount of expenses necessarily incurred by

“The court erred in not sustaining the excephim in and about the prosecution of this tions, and each of them, had and taken by apsuit. The trial court found that in and pellants to said decree of October 16, 1913, about the investigation of the matters com- and the findings therein, and which said ex plained of in his bill and the prosecution ceptions are appended to and made a part of

this decree" of this suit the complainant was compelled to expend and incur liabilities for large sums -and the tenth, eleventh, twelfth, and thirof money for attorneys' fees, stenographers, teenth, to the effect that the decree is conand expert accountants; that this was a trary to the law and the evidence. proper and necessary service in and about Plaintiff in error insists that, as no apthe investigation of the matters complained peal was prosecuted by the White City Comof and the prosecution of the suit, and that pany and the allowance of such item spe in equity those sums should be made a first cifically pointed out by it in the Appellate lien and charge upon the funds recovered Court as error, the matter was not properly and saved to the White City Company by before the Appellate Court for decision on reason of this suit, and decreed that such this appeal, even if the joint assignment of expenditures should be a lien upon any and errors of Beifeld and the hotel company was all sums of money recovered in this proceed- broad enough to raise this question. The ing, and it referred this matter, among oth- reason urged is that neither Joseph Beifeld ens, to the master to take the evidence and nor the hotel company was in a position to report the same, with his conclusions as to assign error as to the allowance of such item the amount of such expenditures.

in behalf of the White City Company; also The White City Company, although a par- that the item, even if corered by such asto defendant to the bill and the one for signment of errors, was waived in that court whose benefit this action was brought, took by the failure to argue the same in the printDo aetive part in the investigation of these ed briefs and arguments filled in that court matters or in the prosecution of this suit; by the defendants in error. On motion of neither did it prosecute an appeal from the the plaintiff in error certified copies of the 'decree of the lower court or assign cross-er- briefs and arguments of the parties filled in rors in the Appellate Court, or in any way the Appellate Court have been filed in this question the propriety of the decree of the court. Plaintiff in error further contends lower court; neither does the correctness of that, independently of the question of the the allowance of these charges seem to have sufficiency of the assignment of errors, the been directly raised by any specific assign-item was properly charged against the trust ment of error in the Appellate Court, or to fund and allowed to him under the general have been raised and specifically pointed out equity powers of a court of chancery. Dein the brief and argument filed on behalf of fendant in error Joseph Beifeld insists that Joseph Beifeld as one of the errors relied the above assignment of errors by him jointly

with the hotel company is sufficient to raise , ed the exclusive right to sell all foods, drinks, this question; that it is both joint and sev- cigars, cigarettes, and tobaccos within the eral, and that his interest in the corporation premises leased by the White City Company as a stockholder is sufficient to allow him to and during the term of such lease. It was assign errors in its behalf; also that such contemplated originally that the Hotel Comexpenses are not properly allowable out of pany should carry on this business in the the funds recorered under the laws of this College Inn building. I can perceive no reastate.

son, however, why the White City Company [16] Ordinarily only the party whose rights should not grant the hotel company, under are injuriously affected by the judgment or this concession, the right to sell these artidecree appealed from can assign error as to cles to the patrons of the White City Comthat part of the judgment or decree. Press pany elsewhere than in the College Inn buildv. Woodley, 160 Ill. 133, 43 N. E. 718. De- | ing. The purpose of granting this concession fendants in error do not dispute this general was to afford the patrons of this amusement proposition, but insist that Joseph Beifeld, park an opportunity to be served with meals as owner of a majority of the capital stock and luncheons. If the College Inn should of the White City Company, can assign er- prove inadequate for that purpose, it would rors in its behalf, as he was a party to the appear to be as much to the advantage of the proceedings and the decree adversely affects White City Company as to the hotel company his interests as such stockholder. While in to provide more ample facilities for catering some cases the court has allowed a stock to the wants of the people patronizing the holder whose rights as such are adversely park. The White City Company by resoluaffected by a decree against a corporation tion permitted the establishment of a lunch in which he is interested to assign error as room, and in my judgment it had the right to that part of the decree (Kavanagh v. Bank to do this upon the same terms that the hotel of America, 239 Ill. 404, 88 N. E. 171), those company was permitted to carry on its busicases are an exception to the general rule. ness under its concession in the College Inn The reason which allowed such course loses building. much of its force in the present case when I do not concur, therefore, in the concluit is considered that Joseph Beifeld is presi- sion reached in reference to the sale of food dent of and in control of the White City Com- elsewhere than in the College Inn building. pany, and has been since its organization, In all other respects I concur with the conand apparently has controlled and dominated clusions of the majority. its actions throughout the whole course of this litigation. Under such circumstances

DUNN, J. I concur in the dissenting it was neither necessary nor proper for him opinion of Mr. Justice COOKE. to assign errors in its behalf, and the White City Company not having appealed, and the

(219 N. Y. 242) question as to the allowance of the item com

In re MITCHELL plained of not having been raised or argued in the brief filed in the Appellate Court,

(Court of Appeals of New York. Nov. 28,

1916.) such question should not have been considered by the Appellate Court, and will not be SHERIFFS AND CONSTABLES em 5 VACANCY

ELECTION. considered by this court.

Const. art. 10, § 1, provides that sheriffs [17] Complaint is also made because the shall be chosen by the electors of counties every court taxed the costs of the proceeding to the three years and as often as vacancies occur, and defendants in error Joseph Beifeld and the section 5 requires the Legislature to provide for hotel company. The allowance of costs in a elective officers no appointee to fill a vacancy

filling vacancies in office, and that in case of chancery case rests very largely in the dis- shall hold office after the beginning of the pa cretion of the chancellor. It will only be litical year next succeeding the first annual interfered with in cases of abuse in the sol. Laws, c. 11) $ 180, subd. 2, provides that

election after the vacancy. County Law (Conexercise of such discretion. We think from the Governor may appoint a sheriff when a vaan examination of the record in this case cancy occurs to hold office to the last day of Dethat the action of the chancellor in this re- cember, inclusive, first succeeding the first an.

nual election thereafter; and Public Officers' spect was proper, and it is accordingly ap- Law (Consol. Laws, c. 47) $ 38, contains the proved.

same provision as to an elective office, and ElecFor the reasons given, the judgment of the tion Law (Consol. Laws, c. 17) & 292, as amended Appellate Court and the decree of the circuit by Laws 1911, c. 891, $ 62, provides that a va.

cancy occurring before October 15th shall be court of Cook county will be reversed, and filled at the next general election, and that on the cause remanded to the circuit court for failure to elect to any office at a general or further proceedings in accordance with the special election or upon a vacancy which cannot

be filled by appointment for a period beyond the views herein expressed.

next term of election, the Governor may order Reversed and remanded.

a special election not less than 30 or more than

40 days from his proclamation. The sheriff of COOKE, J. (dissenting). By the contract Queens county died October 23, 1916, and petibetween the hotel company and the White office to be voted upon at the general election

tioner filed a certificate of nomination for the City Company the hotel company was grant- 1 of 1916. Held, that the existing vacancy could

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