tract, and that Martzen on the same day indorsed and cashed the check and has retained the proceeds to his own use. The decree further finds that appellant carried on the negotiations for the purchase in his own behalf and not as attorney for Brisk; that Martzen could understand spoken English but could not read or write it, except his own name, and all the time believed he was dealing with Brisk and that appellant was acting as Brisk's attorney; that Martzen never understood the memorandum on the check and never understood the purchaser was to have ten days after delivery of the deed and abstract in which to make payment of the balance of the purchase money, but understood the memorandum to mean the balance was to be paid within ten days after the execution of the check and that the contract was in reality a ten-day option for the purchase of the premises, and if not exercised within that time the $100 was to be forfeited. The decree further finds that ten days after Martzen was given the check he tendered Brisk a deed and abstract of title and demanded payment of the balance, but Brisk told Martzen he did not have the money and that his attorney (appellant) was out of the city, and made no disclaimer of interest under the contract; that his conduct was such as to confirm in Martzen his belief that he was dealing with Brisk and not with appellant; that Brisk was the constant and ever present associate of appellant in all the negotiations with Martzen and told appellant of the tender of the deed and abstract a few days after the tender was made. The decree further finds that afterwards appellant, Brisk and Martzen had numerous meetings and negotiations, in which appellant claimed he was ready and willing to pay and Martzen claimed he was ready and willing to accept the money, but that no actual tender was made by appellant or Brisk of the balance of the purchase money until October 15, 1913, but that prior to that time Martzen had entered into a binding contract for the sale of the premises to Stockus, and afterwards, on October 27, 1913, in pursuance

of said contract, he conveyed the property to said Stockus. The decree further finds Stockus had not sufficient notice. of any rights claimed in the property by appellant at the time he contracted to buy it, and that the mortgagees were also innocent purchasers, and that the equities were with defendants and appellant was not entitled to the relief prayed for in his bill.

Brisk, Martzen and most of the witnesses who testified in the case were Lithuanians, and a number of them had only a partial familiarity with the English language. They understood it fairly well when they heard it spoken but in repeating conversations their vocabulary was limited, and words used by them could not always be confidently relied upon to express what was said or meant in conversations they attempted to relate. Martzen could not read writing in English but could write his name. While the decree finds the negotiations were carried on by appellant for the purchase of the property on his own behalf, it further finds that Martzen did not so understand it but thought the sale was being made to Brisk and that appellant was acting as Brisk's attorney. The testimony of appellant and his witnesses, and that of Martzen and his witnesses, was conflicting as to just what occurred and what was said at the meeting between the parties when the check was written and delivered to Martzen. We are of opinion the conduct of Brisk and appellant, whether so intended or not, was well calculated to impress or give Martzen to understand and believe he was agreeing to sell to Brisk. No explanation appears why, if appellant was buying the property on his own account, he did not give his check for the $100 advance payment, as he claimed he had ample money on deposit, nor why, instead of writing out an agreement in the usual manner in such cases, he wrote a memorandum on a card and had Brisk copy it on the check, which memorandum was the only writing relating to the sale of the property and the terms of the sale. We think from all that was said and done there, Martzen

might well have understood his contract was with Brisk and that appellant represented him as attorney. Martzen was unable to read the writing on the check, and he and his witnesses testify the agreement was that in ten days Martzen was to deliver the deed and abstract of title and the balance of the purchase money should then be paid. Some of Martzen's friends who were with him when the check was given to him and who went with him when he left appellant and Brisk, testified they read the writing on the check and told him what it was, but they did not appear to understand it, for they took it to be a ten-day option for the purchase of the property, and that unless complied with by the purchaser the $100 was to be forfeited. It seems it must have been so understood by Martzen, and he must also have understood that Brisk was the purchaser, for on the twelfth day of August Martzen took a deed he had executed to Brisk and an abstract of the title and went to Brisk's place of business, tendered him the deed and abstract and requested the payment of the balance of the purchase money. Even then Brisk did not deny that he was the purchaser and tell Martzen appellant was the man he had contracted with, but, according to the weight of the testimony, he told Martzen he did not have the money and that appellant, his attorney, was out of town. The proof, with little or no contradiction, shows appellant was not out of town at that time.

It is insisted the answer did not rely upon a fraud or artifice being practiced on Martzen, and that when he accepted the check it was his duty to inform himself of what was written thereon before he indorsed it and procured the money; that the memorandum on the check was the contract, and he cannot now be heard to say that the agreement entered into is different from the writing. The decree does not find, nor do we think it necessary to reach the conclusion the chancellor reached, that actual fraud was perpetrated upon Martzen. If by their conduct, whether it was intended or not, appellant and Brisk procured Martzen to

agree to sell the property to appellant and give appellant ten days after tender of deed and abstract to pay the balance, when he intended and believed he was selling to Brisk on condition that Brisk pay the balance in ten days, we do not think that equity and good conscience require the enforcement of the specific performance of the agreement, and especially so when Brisk, as recited in the decree,-"the constant and ever present associate of Cummins in all his negotiations with Martzen,"—after being tendered the deed and abstract and requested to pay the balance, did not disclaim being the purchaser but said he did not have the money and that appellant, his attorney, was out of town. Certainly Martzen would not be injured if he received the price agreed upon, no matter whether paid by appellant or Brisk, but it appears from the proof that he regarded the deal as ended. under the agreement, and though subsequently he had talks with Brisk and appellant about conveying the property to appellant, he finally on October 15 entered into a written agreement with Stockus to sell to him and under that agreement made a conveyance.

There is much conflict in the testimony as to the negotiations between the parties after August 12, the testimony of appellant tending to show that Martzen was deceptive and evasive, and that of Martzen tending to show the conduct on the other side was not dependable. Without further adverting to the evidence, it is sufficient to say a perusal of it does not impress us the chancellor erred in holding that it was not sufficient to justify enforcing specific performance. The rule is that specific performance can never be demanded as a matter of absolute right,-it rests in the sound judicial discretion; but where all the necessary incidents and conditions are proven by satisfactory evidence, the relief should be decreed as a matter of right and not as a mere favor. (Schenck v. Ballou, 253 Ill. 415; Evans v. Gerry, 174 id. 595, and cases there cited.) Specific performance will not be decreed at the suit of a party against whom the other party

has no reciprocal right to enforce the contract. (Brown v. Sunderland, 251 Ill. 523.) Tested by the rules laid down in the above mentioned authorities we cannot say the decree is contrary to the law and the evidence, and it is affirmed. Decree affirmed.

EDMUND M. DUNNE, Catholic Bishop, Appellant, vs. THE COUNTY OF ROCK ISLAND, Appellee.

Opinion filed April 20, 1916.

I. INJUNCTION—rule as to considering affidavits on motion to dissolve injunction. Affidavits cannot be received or considered on a motion to dissolve an injunction where no answer or plea has been filed to the bill, but if an answer has been filed denying the allegations of the bill, it is allowable, upon motion to dissolve the injunction, for either party to introduce testimony or affidavits to support the bill and answer.

2. SAME-affidavits cannot be considered on motion for a preliminary injunction. For the same reasons that affidavits are not received on motion to dissolve an injunction before answering or pleading to the bill, affidavits cannot be filed or considered on motion for a preliminary injunction in any case.

3. SAME correct practice if motion for preliminary injunction is denied before answer or plea. The question whether or not a temporary injunction shall issue, where no plea or answer to the bill has been filed, must be determined solely upon the bill of complaint, and if the preliminary injunction is denied the complainant has a right to amend the bill for final hearing or have issues of fact or law made up by demurrer, plea or answer and have the bill properly disposed of on the final hearing.

4. SAME―when it is not good practice to dismiss bill on application for temporary injunction. It is not good practice to dismiss the bill upon an application for a temporary injunction, even where injunction is the only relief sought, unless the issues are joined by plea, answer or demurrer and the whole case is submitted to the court, or where it is apparent that the bill cannot be made sufficient by amendment.

5. EQUITY-office of answer and demurrer. It is the office of an answer to deny the allegations of a bill in equity or to set up some affirmative matter as a defense, and it is the office of a demurrer to test the sufficiency of a bill upon its face.