ton L. Field and the other tract under a contract of sale from Robert A. Scholz and Ross H. Welch. Plaintiff in error, Alonzo H. Hill, Field, Scholz, Welch and Sporron were all made defendants to the cross-bill. Scholz, Welch and Sporron answered the cross-bill, Hill filed a disclaimer, Field defaulted, and plaintiff in error interposed a general and special demurrer. The court overruled the demurrer, and plaintiff in error electing to abide by his demurrer, the cross-bill was taken as confessed as to him and the cause proceeded to a hearing on the answer of the other defendants and the disclaimer of Hill. A decree was entered in favor of the defendant in error for specific performance of her contracts with plaintiff in error, and allowed Sporron $260 from the amount due plaintiff in error on his contracts, as commission for making the sale of the lands in question. Plaintiff in error sued out a writ of error to review this decree. Hill also assigned cross-errors on the record in this court.

The record filed in this court contains no copy of the original bill and answers thereto or certificate of evidence containing the evidence introduced on the hearing, but it appears from such of the pleadings as are in the record and the decree that on October 7, 1912, plaintiff in error entered into two written contracts with defendant in error for the sale to her of certain property in the city of Chicago, the contracts being in all material respects identical except as to the description of the property and the consideration to be paid therefor. The property described in the first contract was a lot 52 by 125 feet, at the north-west corner of Lawrence and North Hamlin avenues, for which defendant in error was to pay $2300. The other property was a lot 57.25 by 125 feet, at the north-west corner of Lawrence and North Ridgeway avenues, for which she was to pay $2900. The material parts of each contract in question are as follows:

"This memorandum witnesseth, that J. E. Waggoner hereby agrees to sell, and A. M. Saether agrees to purchase, at the price of [in one case $2300 and in the other $2900] the following described real estate, situated in Cook county, Illinois, [describing the property,] subject to all taxes and assessments levied after the year 1912. Said purchaser has paid $100 as earnest money, to be applied on said purchase when consummated, and agrees to pay within thirty days after date hereof, after the title has been examined and found good, the further sum of [in the one case $1000.35 and in the other $1195.49] at the office of E. A. Sporron, Chicago, provided a good and sufficient articles of agreement for warranty deed signed by the owner of the premises and in satisfactory form (subject as aforesaid) shall then be ready for delivery. The balance [in the one case of $1199.65 and in the other of $1604.51] payable in monthly installments of $25 or more, and interest at six per cent, becoming due, respectively, on or before the first day of each and every month herefrom until full payment is made as provided by existing monthly payment contracts held by seller and to which reference is hereby made. Seller agrees to furnish abstract of title or title guaranty policy for the purpose of examination within fifteen days from the date hereof, showing good and sufficient title in the seller named in said articles of agreement. Should the title to the property not prove good then this $100 to be refunded, but should the said purchaser herein mentioned fail to perform this contract on her part promptly at the time and in the manner above specified, time being the essence of this contract, then the above $100 shall be forfeited by her as liquidated damages and the above contract shall be and become null and void. This contract and the said earnest money shall be held by E. A. Sporron, Chicago, for the mutual benefit of the parties hereto.

"In testimony whereof said parties hereto set their hands this 7th day of October, A. D. 1912."

The cross-bill charges the defendant in error has at all times been ready and willing, and now is ready and willing, to perform the terms of the agreement and make the payments therein provided, and that she has elected to pay the whole amount of the consideration in said contracts specified, in cash; that plaintiff in error has failed and refused to perform his agreement and furnish a guaranty policy or abstract of title showing a good and sufficient title to the premises and articles of agreement for a warranty deed from the owners, or a warranty deed signed by the owners

conveying to her the said premises; that at the time of the signing of the contract plaintiff in error was not, and never had been, the owner of the premises, his only interest in the same being by virtue of contracts between himself and Alonzo H. Hill, by which the latter agreed to sell and the plaintiff in error agreed to purchase the said premises, the lot at Lawrence and North Ridgeway avenues, for $2034; that the only interest Hill had in the Lawrence and North Hamlin avenue property was by virtue of a contract for a warranty deed from Clifton L. Field, in whom the title stood of record, and in the Lawrence and North Ridgeway avenue property by virtue of a similar contract with Robert A. Scholz and Ross H. Welch, in whom the title stood of record; that at the time of making the contract in question all of the foregoing contracts between Waggoner and Hill, and between Hill and Field, and between Hill and Scholz and Welch, were in full force and effect. By an amendment to the cross-bill it was alleged that Field had performed his contract by conveying the property owned by him to Hill pursuant to his contract with Hill.

The prayer of the cross-bill is that the court ascertain the amount due the several parties on their respective contracts, and upon defendant in error paying the amount due on her contract, and the payment to Hill, Scholz and Welch of the amounts due on their respective contracts, that the court decree a conveyance of the premises to her in accordance with the terms of her contracts with plaintiff in error, etc.

The court by its decree found the facts substantially as set forth in the cross-bill, and in addition, that Sporron was employed by plaintiff in error as agent and broker in procuring the sale of the property to defendant in error; that his services in such matter were reasonably worth $260, which amount it decreed should be paid him out of the money due the plaintiff in error; that the defendant in error pay the master in chancery $2200, with interest on the

deferred payments of $1199.65 at six per cent from October 7, 1912, the amount due from her on the Lawrence and North Hamlin avenue property, and that Alonzo H. Hill convey the property to her on payment of the balance due on his contract, which was found to be $1135.16, with interest at six per cent; that she pay to the master in chancery $2800, with interest on the deferred payments of $1604.51 at six per cent from October 7, 1912, being the amount due from her on the Lawrence and North Ridgeway avenue property; that upon the payment to Scholz and Welch of $1188.50, with interest, being the amount due them under their contract with Hill, they convey the property to defendant in error; that after paying the above amounts, taxes, interest and costs the master report the balance in his hands for distribution, and that the court retain jurisdiction of the cause for the purpose of determining the distribution to be made of the balance remaining in the master's hands.

It further appears from a certificate of evidence taken on May 14, 1914, at the May term of the court, that on January 19, 1914, arguments were heard on the demurrer to the cross-bill, at the conclusion of which the court announced the demurrer would be overruled; that counsel for plaintiff in error stated he would abide by his demurrer, and thereafter a draft of a decree was prepared and submitted to the court reciting the foregoing facts. From another certificate of evidence taken on May 27, 1914, it appears that on that day plaintiff in error made a motion for the third time to enter a decree reciting the overruling of the demurrer on January 19, 1914, the election of plaintiff in error to abide by his demurrer and the taking of the cross-bill as confessed as to him, which motion the court overruled.

It is admitted that the draft of the decree contained in the purported certificate of evidence is incomplete and was never signed by the judge or filed with the clerk to be en

tered of record in the cause. The record of the court as made up by the clerk shows only the following order entered on January 19, 1914: "On motion of solicitor for complainant the demurrer of E. A. Sporron is hereby overruled and the defendant is given ten days to answer." No mention whatever is made of a hearing on the demurrer to the cross-bill.

On March 19, 1914, defendant in error obtained leave to amend her cross-bill, and an order was entered "that the demurrer of the cross-defendant, Waggoner, stand as his demurrer to the cross-bill as amended." On May 18, 1914, defendant in error again obtained leave to amend her crossbill, which was amended instanter, and a rule was entered on plaintiff in error to plead, answer or demur by May 20, and it was ordered that the answers of Scholz, Welch and Sporron, and the disclaimer of Hill, stand as their answers and disclaimer, respectively, to the cross-bill as amended. It further appears from a subsequent order entered on the same day that the court overruled the demurrer of plaintiff in error to the cross-bill, and that plaintiff in error, by his counsel, "in open court elects to stand upon his said demurrer, and it is ordered that default of said J. E. Waggoner be entered as to said cross-bill pro confesso, and that the same be entered nunc pro tunc as of May 13, 1914," and that the final decree be presented at ten o'clock on May 21, 1914. The final decree entered recites the hearing on the demurrer; the election of plaintiff in error to stand by his demurrer; the order entered taking the cross-bill as confessed as to plaintiff in error, and the coming on of the cause to be heard on the disclaimer of Hill and the answers of the other defendants to the cross-bill; the taking of evidence in open court before the chancellor, together with a very full finding of the facts as established on such hearing, and the prayer for and the allowance of appeal to the plaintiff in error upon his filing an appeal bond in the penal sum of $1000.