Klaproth v. Greenberg, 169 Ill. App. 477. This case has heretofore been in the Appellate Court, this district, as No. 14,270, and was reversed and remanded. Thereafter a remanding order was filed in the Municipal Court by the defendant in error, hereinafter called the plaintiff, it is claimed without serving the proper notice as required by statute. The statute in such a case provides that before a cause shall be reinstated, notice shall be "given to the adverse party or his attorney." Hurd's Revised Statutes, Chapter 110, Sec. 113. It was attempted to serve the notice in the case at bar on Louis Greenberg, hereinafter called the defendant, as shown by the return, "by leaving an exact copy of the same in his office." Manifestly this service was not such as is required by the statute. "When a notice is required, and the mode of service is not specified, the law requires that it shall be personal." (C. & A. R. R. Co. v. Smith, 78 Ill. 96, 99.) The record shows that upon calling the case for trial the defendant did not appear, and judgment was rendered against him by default. It seems to be conceded by counsel for the plaintiff that the notice was insufficient, but the reply is that there is no showing in this court by bill of exceptions that the defendant was not given the notice required by statute, and hence jurisdiction in the trial court must be presumed. The notice does appear in this court in the record, and not by bill of exceptions, and the question is whether or not this notice is a proper part of the record. In our opinion this notice is a necessary process to give the court jurisdiction of the parties, and therefore properly a part of the record. In Miller v. Glass, 14 Ill. App. 177 (181), this exact question was raised, in a case similar to this, and the court said: "It is true there is no bill of exceptions in this case. But the judgment being by default and without notice, so far as the record shows, there could have been none; Klaproth v. Greenberg, 169 Ill. App. 477. and there having been no appearance, there was no waiver. We think that under such circumstances, there can be no intendment that notice was given." In Snell v. Weldon, 243 Ill. 496, the court said, concerning the practice in this case, on page 516: "After the judgment was reversed and the cause remanded and the remanding order filed in the Circuit Court, the cause was then pending in that court, and the court had jurisdiction of the subject matter of the cause but could not properly proceed to the trial of it until the ten-day notice required by the Practice Act was given to the opposite party. (Austin v. Dufour, 110 Ill. 85.) The situation of the cause at that time was similar to a case pending in the court before service of the defendant." In Austin v. Dufour, 110 Ill. 85 (87), the court stated the rule thus: "By the filing of the transcript in the trial court that court again obtains jurisdiction over the subject matter of the suit. But this is not sufficient, of itself, to authorize the court to proceed. Before any steps can be taken in the cause, the court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by the section of the statute above mentioned. *** Unless the court has jurisdiction both of the person and subject matter of the suit, its proceedings will be coram non judice, or, in other words, void." To the same effect are Taylor v. Brougham, 63 Ill. App. 283, and McIntyer v. Houseman, 108 Ill. App. 276. These cases are decisive of the case at bar. We might add that the notice under consideration in Christie v. Walker, 126 Ill. App. 424, cited by plaintiff's counsel, was not such a notice as is involved here, and was there expressly held not to be a jurisdictional notice. The trial court not having jurisdiction of the defendant, Greenberg, it had no authority to enter its judg Winefield v. Feder, 169 111. App. 480. ment of November 29, 1909, and the same is void. The judgment is reversed and the cause remanded. Reversed and remanded. Samuel W. Winefield, Defendant in Error, v. Louis Feder, Plaintiff in Error. Gen. No. 16,323. 1. TRIAL-effect of opening statement. "A party is not confined in the introduction of evidence to the statement made in the opening." 2. CONTRACTS-when past services constitute sufficient consideration. If such services were rendered at the request of the party sought to be charged they constitute a sufficient consideration. Error to the Municipal Court of Chicago; the HON. WILLIAM N. GEMMILL, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Affirmed. Opinion filed April 11, 1912. BROWN & NAVIGATO, for plaintiff in error. MOSES ROSENTHAL & KENNEDY, for defendant in error; JULIUS MOSES and WALTER BACHRACH, of counsel. MR. JUSTICE MCSURELY delivered the opinion of the court. Samuel W. Winefield, hereinafter called the plaintiff, recovered a judgment against Louis Feder, hereinafter called the defendant, for $500 for commissions claimed under a special verbal contract, whereby the defendant agreed to pay plaintiff said amount if he should secure a purchaser of real estate belonging to the defendant, for $76,000. It is sought to reverse this judgment for the reason, as it is claimed, that the evidence does not show Winefield v. Feder, 169 Ill. App. 480. an enforceable contract or agreement, and hence the trial court should have instructed the jury to find the issues for the defendant. The evidence shows that the defendant employed plaintiff to procure a purchaser for defendant's property. Plaintiff did so, in the person of B. J. Cahn, who, after some negotiations with the defendant, arrived at an agreement with him as to the price and terms of purchase. At that time the defendant notified plaintiff by telephone that he was closing the deal with Cahn, but that the plaintiff would have to be satisfied with $500 commissions. Plaintiff at first objected and wanted $1,000, but finally agreed to take $500, saying to defendant, "All right; go ahead and close it up. I am satisfied." It was agreed between the defendant and Cahn that Cahn should pay $5,000 down, upon receiving the contract of purchase signed by the defendant and his wife, and defendant took the contract away with him to procure his wife's signature. Nothing further was done in the matter. These facts clearly establish an agreement by defendant to pay $500 to the plaintiff, and his right to a judgment for the same. Counsel for plaintiff, in his opening statement to the jury, made some statement to the effect that between July 6th and 8th the matter had been abandoned, and it is argued that plaintiff was bound thereby, and that it was error to admit evidence of what was done during that period. We do not agree with this claim. "A party is not confined in the introduction of evidence to the statement made in the opening, if one is made." Pietsch v. Pietsch, 245 Ill. 454 (457). * As to the point that a past act cannot serve as a consideration for a promise, it is sufficient to say that the prior services were rendered at the request of Feder. Our Supreme Court in Carson v. Clark, 2 Vol. CLXIX 31 St. Louis S. W. R. Co. v. White Lumber Co., 169 Ill. App. 482. Ill. 113 (114), held: "If the consideration for the promise be past and executed, it can then be enforced only upon the ground that the consideration or service was rendered at the request of the party promising. This request must be averred and proved, or the moral obligation under which the party was placed, and the beneficial nature of the service, must be of such a character that it will necessarily be implied." See also 1 Parsons on Contracts, 468. There was no reversible error in the rulings of the court upon the admissibility of testimony. The judg ment is affirmed. Affirmed. St. Louis Southwestern Railway Co., Plaintiff in Error, v. White Lumber Co., Defendant in Error. Gen. No. 16,345. PRINCIPAL AND AGENT when latter not personally bound. Where an agent discloses the fact of his agency or where the other party knows at the time that he is acting as such agent the latter will not be liable unless he binds himself to become responsible. Error to the Municipal Court of Chicago; the HON. MICHAEL F. GIRTEN, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910. Affirmed. Opinion filed April 11, 1912. JEFFERY, OTT & CAMPBELL, for plaintiff in error. MR. JUSTICE MCSURELY delivered the opinion of the court. The Ferguson Hardwood Lumber Company, of Texas, hereinafter called the Ferguson Company, shipped a carload of lumber from Weaver, Texas, to the White Lumber Company, of Chicago, hereinafter call |