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 Flood." That the privileges ing those served at banquets. granted by the latter concession contracts are confined to the space specified in the contracts we believe cannot be seriously questioned. If so, why does not the same rule apply to the hotel company contract? The language of the contracts in this respect is similar, and we find no other language in contract A which would warrant us in placing any different construction upon such language in that contract and similar language used in the other concession contracts. Its language is equally as specific as that of the other concession contracts, as, after describing the land leased, it further states the "exact space" is shown on the ground plans of the company. That space, as we understand the record, is the space now occupied by the College Inn building. Under such circumstances we can hardly construe the words "exact space" as meaning anywhere on the White City Company's premises, and we do not so construe the words.

[10] Complaint is further made that no commissions were paid on wines served at the banquets; on milk sold by the glass when not served as a part of a meal; on ice cream,

ice cream cones, soda water, orangeade, and a soft drink known as "natural ozone"; on confetti; and on candy called "fluff-fluff," sold on the premises by the hotel company. As to the wines, during the season of 1905 a number of banquets were held at the White City at which wine was served as part of a meal, on which no commissions were paid by the hotel company. At the subsequent banquets held during the years 1906 and 1907 the White City Company was credited with a commission of 10 per cent. of the cost price of the wines served at such banquets. Plaintiff in error contends the contract price of 25 per cent. of the gross receipts from all drinks should govern on all wines served, either as a part of a meal or otherwise. Defendants in error contend that banquets were often served at a very low price for advertising purposes; that there was no profit in such banquets, and therefore the hotel company should not be required to pay any commissions on wines served at such banquets during the year 1905; and further, that a modification was made of the contract by

[11] As to the claimed modification of the contract, defendants in error do not contend but that champagne and wines were included within the provisions of the contract as originally drawn, nor do they claim that any fraud or imposition was practiced upon the hotel company in the making of the contract, or that it was not fairly made and enThe only tered into between the parties. claim advanced is that the hotel company made a mistake in agreeing to pay such a high rate of commissions for the privilege granted. The same argument would probably be advanced by every concessionaire if by so doing he could have his rate of commissions

reduced.

Such an argument does not commend itself to this court as good ground for altering a contract fairly made and entered into, in the absence of fraud or imposition in the making of the contract. There is no record evidence of any such change in the contract, and there is a very serious dispute in the evidence as to whether such matter was ever taken up with the board of directors and considered by them, either formally feld practically owned and controlled both or informally. In view of the fact that Bei

made seems to have been fairly made, and corporations, that the contract as originally

there is no evidence in the record to show

that any mistake was made in the contract except that it is now claimed the hotel company is paying a higher rate of commissions on such commodities than it should have been required to pay, or that any fraud or imposition was practiced upon it in making such contract, and no affirmative relief is sought by it in that respect from the White City Company by a cross-bill, we hold that the hotel company should pay the White City Company the commissions at the rate of 25 per cent. upon the gross receipts of all such wines sold on the premises while contract A is in force between the parties.

As to the milk sold by the glass on which no commissions were paid, besides what was sold in the College Inn building, the hotel company sold milk by the glass during the years 1906 and 1907 at a booth known as the "Wooden Cow," on space not covered by the grant in contract A. This milk was not sold

except on Saturdays and Sundays, when it was served with sandwiches sold at the same booth a short distance from where the milk was sold. Defendants in error contend the milk thus sold was an eatable within the provisions of contract A, and therefore exempt from payment of any commissions under the terms of that contract. As we construe the contract, it is not necessary to determine whether or not the milk so sold is an eatable within the purview of such contract, for the reason it was sold at a different place from that granted by the provisions of such contract, and in a booth constructed and furnished by the White City Company, for which it was entitled to receive a reasonable rent or commissions on sales made therein in lieu of such rent. The trial and Appellate Courts both held that the hotel company should pay a commission of 25 per cent. on all sales made at such place, except where the milk was sold with sandwiches. We think, in view of the fact that the hotel company had no right, by virtue of its contract, to sell eatables at such place without paying a reasonable rental for the space occupied for such purpose, that it should have been required to pay a commission of 25 per cent. on all milk sales made at such booth.

forms was an eatable, and therefore exempt from paying any commissions under the terms of contract A. The evidence further shows that during the first part of the season of 1905 the hotel company sublet the privilege of selling ice cream in its various forms, other than in the College Inn building, to other parties, from whom it received a commission of 50 per cent. on the gross receipts of all such sales, and that it credited the White City Company with one-half of the amount received from such sublessees. The evidence of Howse shows that ice cream, when served otherwise than as a part of a meal, is never included within the terms of a contract granting to a concessionaire the exclusive right of the sale of eatables in amusement parks. The contract was also so construed, in the first instance, by the parties to it. In construing contracts the main thing is to ascertain and give effect to the intention of the parties. This intention is to be ascertained from the language of the contract itself and the circumstances and surroundings of the parties at the time it is made. In case of doubt as to the meaning of the language used, the contemporaneous construction placed upon it by the parties is 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 for that of the candy.

The confetti sold during the last few days of the seasons of 1905 and 1906 was not covered by the terms of any contract. The hotel company has voluntarily credited to the White City Company a commission of 25 per cent. of the gross receipts from such sales. The plaintiff in error contends that that was not a reasonable commission. The evidence shows that by the terms of most contracts with concessionaires they were only required to pay a commission of 25 per cent. on their gross receipts for the concessions granted. Since 1906 the sale of confetti has been handled by the White City Com

pany.

Under the circumstances we think the 25 per cent. commission allowed and paid by the hotel company to the White City Company is sufficient, but that it should have been paid to the White City Company instead of credited on the construction account. [12] The evidence shows that during the seasons of 1905, 1906, and 1907 ice cream by the dish, in cones, and in ice cream sodas was sold by the hotel company at various places on the White City grounds on which no commissions were paid or allowed to the White City Company. Defendants in error contend that ice cream in these various

paying any commissions on such sales to the White City Company. This was one of the

things which induced Beifeld to enter into the White City project; but we do not think it was the intention of the parties that he might exercise that privilege wherever he chose on the grounds, or at any other place than that mentioned in contract A, or that it was the intention of the parties that sales of such articles as ice cream in its various forms, when not served as part of a meal in without paying a commission on such sales the College Inn building, should be made to the White City Company. This was the construction placed on the contract by the parties themselves when these articles were sold through the sublessees, and, we think, We are therefore of the opinion that the is the proper construction of the contract. White City Company should have been paid a commission of 25 per cent. upon all sales of ice cream, in its various forms, on the grounds, at places other than the College Inn.

Another item is the dairy lunch. Prior to the year 1907 a lunch was served in what was known as the balcony of the College Inn building. In January, 1907, the directors adopted a resolution granting the hotel company the right to use space under the ballroom for the purpose of conducting a lunch

The

that they did not care to carry advertisements in both the White City Company's magazine and on the menu cards and musical programs. The menu cards were necessarily furnished by the hotel company, and were an expense borne by it in connection with its restaurant and eating concessions. Such advertisements as it was able to get by printing the same on the menus were a mere incident, for which it should not be made to account to the White City Company. musical programs contained advertisements and the lists of the selections played from day to day by the band employed by the White City Company, which gave concerts in the plaza of the White City. If the advertising on these programs was of value the White City Company should have received the benefit therefrom, and its officers should not have turned over such a valuable concession to the hotel company for nothing. We think that the circuit court and Appellate Court rightly held that the White City Company was entitled to 25 per cent. of the gross amount received from advertising on the musical programs.

room. The resolution made no provision for from 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 would be from $2,000 to $2,500 per year. Defendants in error contend that the conducting of a dairy lunch by the hotel company was within the purview of the terms of contract A, and therefore it was not required to pay any commissions upon sales of such lunches; also that there was an indirect benefit to the White City Company by reason of its furnishing the patrons with a quicker and cheaper lunch than they could otherwise have secured at the College Inn building, by reason of which its patronage would be considerably increased. While this may all be true, we do not think it offers sufficient ground for allowing the hotel company to occupy valuable space in the White City without paying any rent, or commissions in lieu of rent, for the use of such space. Every amusement added to the park might be said to have resulted in an indirect benefit to the White City as tending to increase its patronage. As we have already construed contract A, it applied merely to the space granted to the hotel company by that contract, and would not, and does not, cover the sale of eatables at other places on the grounds except to prohibit other persons or concessionaires from making such sales on the White City premises. Where the hotel company used the property of the White City Company in making such sales, we think it should be required to account to the White City Company for the reasonable rental value of such space or property used by it, based on the usual and customary commis sions paid for such privilege.

[13] The evidence shows that the commissions derived from the sale of candy, peanuts, and popcorn under contract B were not paid daily to the White City Company in accordance with the terms of that contract, but, instead, were credited to it on the construction account. Plaintiff in error contends the

White City Company is entitled to interest on such amounts so wrongfully credited to it 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 to be reimbursed for the expense of conmusical programs distributed at the plaza. The advertising on menu cards and musical structing the College Inn building entirely out of the commissions due the White City programs was not covered by the express 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 commisappears that during the years 1905, 1906, and sions due under that contract. The commis1907 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 Chicago. This magazine was conducted at a loss to the White City Company. Beifeld, as president of the White City Company, employed the solicitor of advertising for the magazine, and instructed him not to call up

debtedness of $300,000. The action of the hotel company in withholding the money due under contract B was wrongful, and we think it should be required to pay interest on such sums wrongfully applied on the construction 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.

[14] Another item complained of is the alleged indebtedness from the Chicago Fire Exhibition Company to the White City Company for a concession granted to it for the years 1905, 1906, and 1907. The items complained of as constituting this indebtedness consist of electric lighting and other expenditures used in operating the concession, amounting in all to approximately $4,200. It is alleged that this sum is now due from the Chicago Fire Exhibition Company to the White City Company, and that no effort has been made by the officers of the White City Company to collect the same. The Chicago Fire Exhibition Company was made one of the parties defendant to this bill, and the decree finds that amount should be accounted for by that company to the White City Company, with interest at 5 per cent. per annum from October 15, 1907. No appeal has been perfected by that company from the decree. It is therefore final and conclusive against it. The item therefore requires no further consideration from this court at this time.

court. However, it does seem from the majority opinion of the Appellate Court that this item was referred to in the oral arguments in that court, but whether by counsel for Joseph Beifeld and the hotel company or by counsel for the White City Company the record does not show. No brief and argument appears to have been filed in that court by any one for the White City Company.

The course pursued in the lower court was for each party to file exceptions to that part of the decree of which he complained. The White City Company filed no exceptions to any portion of the decree as entered. The defendants in error Joseph Beifeld and the hotel company filed joint exceptions-46 in all-in the twenty-seventh of which they took exception to that part of the decree which finds that plaintiff in error has incurred liabilities for large sums of money in and about the prosecution of this suit, and decrees the same a proper charge on the fund recovered by the White City Company in this suit. The errors assigned which are claimed to have raised this question in the Appellate Court are the second of the joint errors assigned by Joseph Beifeld and the hotel company in that court, as follows:

"The court erred in not sustaining the exceptions, and each of them, had and taken by appellants to said decree of October 16, 1913, and the findings therein, and which said exceptions are appended to and made a part of this decree"

teenth, to the effect that the decree is contrary to the law and the evidence.

[15] By his bill filed in the circuit court the plaintiff in error asks that he be reimbursed, out of the funds recovered, for the amount of expenses necessarily incurred by him in and about the prosecution of this suit. The trial court found that in and about the investigation of the matters complained of in his bill and the prosecution 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, and expert accountants; that this was a proper and necessary service in and about the investigation of the matters complained of and the prosecution of the suit, and that in equity those sums should be made a first lien and charge upon the funds recovered and saved to the White City Company by reason of this suit, and decreed that such expenditures should be a lien upon any and all sums of money recovered in this proceeding, and it referred this matter, among others, to the master to take the evidence and report the same, with his conclusions as to the amount of such expenditures.

Plaintiff in error insists that, as no appeal was prosecuted by the White City Company and the allowance of such item spe cifically pointed out by it in the Appellate Court as error, the matter was not properly before the Appellate Court for decision on this appeal, even if the joint assignment of errors of Beifeld and the hotel company was broad enough to raise this question. The reason urged is that neither Joseph Beifeld nor the hotel company was in a position to assign error as to the allowance of such item in behalf of the White City Company; also The White City Company, although a par- that the item, even if covered by such asty 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 printno active part in the investigation of these ed briefs and arguments filed 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 filed 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 several, and that his interest in the corporation as a stockholder is sufficient to allow him to assign errors in its behalf; also that such expenses are not properly allowable out of the funds recovered under the laws of this state.