![handle is hein.journals/natcorprep131 and id is 1 raw text is: DEVOTED TO GENERAL NEWS, LAW, COMMERCE AND FINANCE
Volume 131. Number I. CHICAGO, JUNE 24, 1955 Subscription $2 a Year. Ten Cents a Copy
RECENT ILLINOIS SUPREME
COURT DECISIONS
EDWIN HALL COOKE, OFFICIAL
REPORTER.
(Volume 5, Second Series.)
(Illinois Advance Sheets.)
Schmitt et al., appellees
vs. Heinz, appellant. (Per
Curiam.) Vol. 5 (2nd), p
372. (No. 33440.-Decree af
firmed.) Deeds-when deeds
will be reformed to correct
mistakes. It is within the ju
risdiction and the duty o:
courts of equity to correc
mistakes in conveyances by
reformation, but before a deed
will be reformed upon the
ground of mistake, the mis
take must be one of fact and
not of law, mutual and com-
mon to both parties, and ii
existence at the time of the
execution of the instrument
showing that at such time the
parties intended to say a cer
tain thing and, by mistake
expressed another; and satis
factory evidence must be pre
sented, leaving no reasonabl
doubt as to the mutual inten
tion of the parties, a mer
preponderance being insuffi
cient.
Same-parol evidence is ad
missible to show mistake-
Statute of Frauds. In an ac
tion to reform a written in
strument, parol evidence i
admissible to show a mistake
and the Statute of Frauds i
not applied in such cases t
exclude oral testimony.
Same-when mistakes i:
descriptions are properly cor
rected. Where a vendor, own
ing a tract of several acre,
at different times sells ad
joining portions to differen
purchasers for residence pur
poses, assisting one of ther
in fencing and locating th
basement of a home for ar
other, and when, a few year
later, it is discovered that th
tracts sold were approxi
mately one entire tract off i
the descriptions expresse
were followed, and did nc
contain one acre each as ir
tended, the contracts and
deed will be reformed and re
conveyances made to give eac
. urchaser the tract occupie
by him.
Practice-when master'
findings will not be disturbed
A master's findings of fac
when approved by the chan
c~llor, will not be disturbe
unless manifestly against ti
weight of the evidence, ti
master having heard the ev
d0nce and having had an op
l )rtunity to observe tli
ccnduct and demeanor of t1
wtnesses while testifying.
Zoning-when requiring
the seller to sign zoning vai-
ance waiver is proper. Where
a county zoning ordinance re-
stricts the erection of a build-
ing within fifty feet of a lot
r line, the seller of the tract on
which the puchasers erected
-their house is properly re-
s quired to sign, as an adjoining
t property owner, the necessary
-zoning variance waiver re-
f quired because of a mistake
t in the description of the land
Y sold.
d Costs-when defendant
e cannot complain of assess-
ment of costs. A defendant
d cannot complain of the assess-
ment of all costs against her
in a proceeding to reform a
e deed and purchase contracts
t, because of a mutual mistake
e in the descriptions, where the
- facts were found against the
defendant and the reforma-
3- tions found to be equitable,
particularly where the ques-
e tion of apportionment of the
- costs was not argued.
e Appeal and error-when
i- plaintiffs' failure to cross ap-
peal precludes consideration
of damages. Plaintiffs in
- whose favor a decree was en-
tered to reform a deed and
contracts of conveyance so as
s to give them tracts purchased
e, and occupied by them, cannot
S complain of failure of the
o chancellor to assess their dam-
n ages where they did not cross
appeal.
i- * * *
S, The People of the State of
- Illinois, defendant in error,
it vs. Vraniak, plaintiff in error.
r- (Daily, J.) Vol. 5 (2nd), p.
m 384. (Nos. 33390, 33391.-
e Judgments affirmed.) Crim-
i- inal law-when court may im-
s pose consecutive sentences. A
.e court may, in its discretion,
i- impose consecutive sentences
if where the accused has, in fact,
d committed separate and dis-
*t tinct violations of the law,
1- and the power has not been
a abrogated by the provisions
e- of section 35 of the Habeas
h Corpus Act or of section 14
d of the Illinois State Peniten-
tiary Act, but the purpose of
's those acts was rather to make
d. such sentences mandatory in
t, the specified instances.
n- Same -power to impose
d consecutive sentences does not
e infringe power of executive
ie department. The exercise of
i- the power to impose consecu-
p- tive sentences does not in-
. e fringe upon the powers of the
e executive department, as the
(Continued on page 9)
GROCERY STORE A PRIVATE
MARKET WITHIN MEANING
OF SUNDAY CLOSING
STATUTE.
In the case of State vs. Pen-
niman (Supreme Court of
Louisiana, November 9,1953),
68 So. (2nd) 770, Fournet,
Chief Justice, delivered the
opinion of the court:
Allen Penniman, as one of
the proprietors and the man-
aging operator of a self-
service store known as Pak-
A-Sak Service No. 2, located
at 5102 Government Street in
the City of Baton Rouge, Par-
ish of East Baton Rouge, was
charged with and convicted of
violating [LSA-] R. S. 51:-
191 in that he did, between
the hours of twelve o'clock on
Saturday night, February 14,
and twelve o'clock Sunday
night, February 15, 1953, sell
certain merchandise, consist-
ing of Gerber's Baby Food,
Pet Milk, Franco-American
Spaghetti, Sea Pride Mackerel
(all in cans), Target tobacco,
vegetables, bacon, and pound
cake. He was sentenced there-
under to pay a fine of $25 and,
in default thereof, to serve 25
days in jail. This court being
without appellate jurisdiction,
he applied for and was granted
these writs so that this con-
viction and sentence might be
reviewed.
Section 51:191 of the LSA-
Revised Statutes of 1950 (an
exact replica of Section 1 of
that (1) inasmuch as he oper-
ates a retail self-service mar-
ket on a cash and carry basis,
in which there is offered for
sale all forms (fresh, frozen,
and canned) of meat, fish,
vegetables, fruit, staples, and
dairy and bakery products,
his business is a private mar-
ket within the commonly ac-
cepted meaning of that term
and, as such, falls into the
classification specifically ex-
empt from the operation of
LSA-R. S. 51:191; (2) since
the legislature failed to define
the term private market,
the statute is violative of Sec-
tions 2, 6, and 10 of Article 1
of the Constitution of 1921;
(3) the statute is too vague
and indefinite to permit a
crime to be charged there-
under and, therefore, inopera-
tive; and (4) the statute is
further unconstitutional for
the reason that neither the
classification nor the discrim-
inations therein provided are
founded upon any reasonable
distinction that has any logi-
cal relation to the public peace,
welfare, and safety of the citi-
zens of Louisiana.
Criminal laws are stricti
juris, and this Court has con-
sistently refused to usurp leg-
islative prerogatives by sup-
plying definitions omitted in
such statutes. See State vs.
Truby, 211 La. 178, 29 So. 2d
758, wherein we refused to
supply the definition of im-
moral purposes, omitted by
Act 18 of 1886) provides that the legislature in denouncing
All stores, shops, saloons, as a crime the keeping of a
and all places of public busi- disorderly place for immoral
ness, licensed under the law purposes; State vs. Vallery,
of Louisiana or under any pa- 212 La. 1095, 34 So. 2d 329,
rochial or municipal law and wherein we refused to supply
all plantation stores, shall be the omitted definition of im-
closed at twelve o'clock on moral acts, in the denounced
Saturday nights, and remain crime of contributing to the
closed continuously for delinquency of juveniles; and
twenty-four hours, during State vs. Kraft, 214 La. 351,
which time no proprietor 37 So. 2d 815, in which we
thereof shall give, trade, bar- refused to give legal connota-
ter, exchange or sell any of tion to the word indecent as
the stock or any article of used in connection with the
merchandising kept in his es- misdemeanor obscenity de-
tablishment. nounced in LSA-R. S. 14:106,
of the Criminal Code. See,
The pertinent part of the also, State vs. Breffeihl, 130
very next section (identical to La. 904, 58 So. 763; State vs.
Section 3 of Act 18 of Comeaux, 131 La. 930, 60 So.
1886) specifically exempts 6
from the operation of LSA- 620; State vs. Gardner, 151
R. S. 51:191 certain busi- La. 874, 92 So. 368; Connally
nesses. Included in these are vs. General Const. Co., 269
newsdealers, the sale of ice, U. S. 385, 46 S. Ct. 126, 70
watering places and public L. Ed. 322; Musser vs. State
parks, places of resort for rec- of Utah, 333 U. S. 95, 68 S.
reation and health, newspaper Ct. 397, 92 L. Ed. 562; Win-
offices, keepers of soda foun- ters vs. People of State of
tains, printing offices, book New York, 333 U. S. 507, 68
stores, drug stores, apothe-. S... 6t. 665, :9? L. Ed. 840;
cary shops, undertaker shops, Itk a vs. Capital
public and private markets; D
Traction CQ,,.-34 App ..D. C.
bakeries, dairies, liey * td 592I . . ..j onnor
bles, * LSA-R. S 5+:.92.' ... .... . . ..
vs, CJty.of.Birmingham, Ala.
It is the relator's contentiok , '..(Ctijft on page 10)
Digitized from Best Copy Available
Financial-Commercial
***Dun & Bradstreet, Inc.,
in its weekly review of whole-
sale commodity prices, June
15, says: The general com-
modity price level turned up-
ward this week following the
downward trend of the past
few months. The Daily Whole-
sale Commodity Price Index,
compiled by Dun & Brad-
street, Inc., rose to 273.45 on
June 14, from 271.66 a week
earlier, and 271.80 on the cor-
responding date a year ago.
All grains except barley
scored sizeable price advances
this week. Nearby wheat de-
liveries were in good demand
with flour mills the major
buyers. Recent soaking rains
came too late to help the win-
ter wheat crop but were con-
sidered beneficial to the spring
wheat crop as well as to corn
and soybeans in -those areas
where planting had been com-
pleted. The more distant
wheat contracts were easier,
reflecting the prospective
heavy carryover and the an-
nouncement of lower support
and parity prices for 1956.
The Department of Agricul-
ture June crop report issued
over the week-end, put this
year's total wheat production
at 845,215,000 bushels, the
smallest since 1943, and 13
per cent under last year's
crop of 969,781,000 bushels.
The winter wheat yield was
forecast at 639,224,000 bush-
els, or about 14,000,000 bush-
els less than the estimate of
a month ago. There was some
improvement in bookings of
spring wheat bakery flours
this week with prices trend-
ing higher, particularly the
high gluten varieties. Hard
wheat flours worked irregu-
larly lower with demand re-
stricted by the expectation of
lower prices in the near fu-
Iture. The market for green
coffee continued to strength-
en, reflecting the prospect of
an agreement among the pro-
ducing countries to establish
marketing quotas at levels ex-
pected to stabilize the market
at between fifty and sixty
cents a pound. Some brands
of coffee were advanced two
to three cents a pound at the
retail level. Cocoa prices rose
sharply in late dealings under
active commission house and
trade demand touched off by
the upward move in other im-
port commodities. Warehouse
stocks of cocoa declined slight-
ly to 237,912 bags, from 240,-
;718 a week earlier, and
1 compared with 100,997 bags
a year ago. Raw sugar was
somewhat easier as demand
for refined slackened with the
(Continued on page 10)
Entered as Second Clan
Matter, October Is,
1890, at the Post Office
at Chicago. Ill., under
Act of March 3. 1879.
4p
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