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PEAIkTROM
SUPERIOR COITRT
COOK COUNTY.
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37910 / y ^ y
THOMAS f SRRY
Plaintiff - Appellant,
T.
ILLINOIS OSHTRAL RAILROAD OOMPAHY,
DttfezulaBt - Appellee.
Opinion filed Deo, 27, 1935
MR, JUSTICE HEBEL DELIVSRSD TH£ OPIKIOH OF THE COURT,
Tlile is an appeal lay the plaintiff from an adverse judg-
ment entered in the Superior Court of Cook Ooxmty upon the
motion of the defendant at the oonolusion of the plaintiff's
evidenoe. The action is for damages based upon the "Federal Hours
of Service Act," which oalces it unlawful for any railroad to perait
any employee connected with the movement of any train to remain
on duty for a longer period than sixteen consecutive hours. The
plaintiff was a laborer employed ftuxing the blizsard of Uaroh 7,
1931, to elean the snow from the main line and switches on the
railroad property, so that interstate trains might proceed. The
weather was cold and it was claimed the plaintiff wss required and
did remain on duty for twenty-two consecutive hours. Both UngM
were froisen, which resulted in the amputation of one foot and the
other leg just below the knee.
The trial court held as a matter of law that the plaintiff
was not entitled to recover, and directed a verdiot at the close
Of the plaintiff's case, for the defendant,
A stipulation of faots was agreed on at the trial, aad
It was agreed that the defendant was a railroad corporation engaged
is a carrier for hire and that it maintained the Twelfth Street
Station as its passenger terminal in Chicago, The right-of-way
extended south along the shore of Lske Michigan from the Twelfth
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Str«et Station. Ia the rlght-of-'iray were laid different main
traoke, and over these tracks trains were operated by the defendant
in interstate oommeroe*
The plaintiff testified that he oommenoed work for the
defendant ooapany on March 1, 1931, between four and five o'clock
in the afternoon. The temperature was around zero* The snow
b«gan to fall between 9:00 and 10:00 o" clock in the morning. The
nen were given shovels and brooms with which to work. The snow
was deep and heavy, and the plaintiff shoveled snow from the
switches and the tracks and kept the snow from the tracks so that
the trains could get through. He worked from the Twelfth Street
Station as far south as 3l8t street* He finished his work at
6:00 o'clock in the evening of March 8, having been in continuous
service all that time. There were four or five inches of snow
everywhere, and in some places it had driftitd from knee-high to
waist-hi^, which had to be shoveled out fr<»B the switches and
tracks* The tracks on which the plaintiff worked were between the
Lake B,nd the suburban lines* The greatest part of the work was
done between the suburban and the freight line, where the passenger
trains ran. Next to the /suburban tracks were two main tracks,
being the dispatch tracks from New Orleans to Chicago. It was
ever these tracks that the through \mae^9 ran out of the state and
into the state* ^Jtl di^yt^ily
The plaintiff further testified that after breakfast
at six o'clock A. M. the foreman signed his identification ticket
for the thirteen hours he had worked, and told plaintiff he could k
not get home because the street cars were tied up and if plaintiff
needed more work he could go back to the employment office and go
to work; that plaintiff went back and stood in line with other men.
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and was finally employed vlth another gang and was given another
red identification ticket; that he had turned in his ahfeirel and
hrooa at six o* clock in the morning, and they were checked in at
the tool house at 13th Street; that the second time, he got his
shovel and bxooa at 27th Street; that when he was hired the second
time the men working with hin were lined up and their feet and
clothes examined; that the company furnished sacking to wrap around
the feet of those men that did not hawe boots; that he was already
wrapped up and had on rubbers*
Plaintiff continued working until Sunday afternoon,
March 8, when he experienced difficulty with hia feet. His legs
were heavy and he could not continue longer. Two men helped him
«p the stairs at Cottage Grove Avenue from the ywd after which
he was put to bed in a hotel and later removed to the hospital
where his ri^t leg and left foot were amputated* At the time plain-
tiff worked for the railroad it was agreed that he was to be paid
57< an hour, time and a half*
Plaintiff's claim is based on the Hours of Service Act
of March 4, 1907, and Is entitled, "An Act to promote the safety of
employees and travelers upon railroads by limiting the hours of
service of employees thereon," The first section of the act is as
follows:
"The provisions of this chapter shall apply to any common
carrier or carriers, their officers, agents, and employees,
engBged in the transportation of passengers or property by
railroad in the District of Columbia or any Territory of
the United 3tate8, or from one State or Territory off the
United States or the District of Columbia to any other State
or Territory of the United States or the District of OoluHbia,
or from any place in the United States to an adjacent foreign
coxmtry, or fraa any place in the United States throx;igh a
foreign country to any other place in the United States*
The term * railroad* as used in this chapter shall Include
all bridges and ferries used or operated in connection with
any railroad, and also all ttie road in use by any common
carrier operating a railroad, whether owned or operated under
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a oontraot, agrfte9«Bt» or lease; and the tera * employees*
as used in this chapter shall be held to mean persons
aotuall7 engaged in ox oonneeted #lth the novement of
any train*"
The second seotlon of the aot provided as follovs;
"It shall be unlawful for any cotamon carrier, its
officers or sgenta, subject to this chapter to require
or permit any employee subject to this chapter to be
or remain on duty for a longer period than sixteen oon-
seoutive hours, and whenever any such employee of such
common carrier shall have been oontlnuously on duty for
sixteen hours he shall be relieved and not required or
pezmitted again to go on duty until he has had at least
ten oonaeoutlve hours off duty; and no such employee
who has been on duty sixteen hours in the aggregate in
any twenty-four hour period shall be required or permitted
to oontintie or again go on duty without having had at
least eight oonseoutive hours off duty***
In order that an employee be engaged under the provisions
of the Hours of Service Aot it oust appear that the employee was
engaged in Interstate transportation and that he was engaged Ia
or oonneeted with the movement of trains* From the evidence, the
plaintiff was exigaged in maintaining an instrumentality connected
with interstate O(»mBero0, and, therefore, he himself, was engaged
in interstate transportation so as to bring him within the pro-
visions of the Federal £mployers> Liability Act* This is admitted
by the defendant, and the ruuLe which governs in the matter was
announced in the case of I* 0. E» E» Oo« v. Industrial Ooamission.
349 111* 451, where the court said:
"At the time of the injury Oordella had been directed to
assist in cleaning the switches, frogs and switch-points
in order to enable the Chesapeake and Ohio train to be
moved in interstate transportation and was proceeding in
that employment« The operations involved in clearing
those switches were in interstate transportation."
The question hAX"* for consideration is whether the evidence
is sufflolent to establish liability under the "Hours of Service Act**
There have been some detlsions of courts of appeal upon the question
as to when an employee of a railroad is within the classifiers t ion
provided for by this act* The act provides that its provisions shall
apply to a common earrier where its officers, agents or employees
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are engaged in the transpoirtatlon of lAseengers or property by a
railroad operating in the territory described in the aet^ and the
question arising between the parties to this litigation is whether
the plaintiff W9S such an employee ^a described in the aot and was
actually engaged in oonneotion with the movement of any train*
It is apparent froa a reading of the "Federal Employers*
Liability Aot", and the "Hours of Service Act", that the intention
of 0o:qgres8 was to restrict its provisions to those employees or
persons actually eng-aged in or oonnected with the movement of trains*
In considering this case two facts must be established
in order to Justify the Oourt^s submitting the case to a Jury*
The first one is whether the employee was engaged in the railroad
service for the purpose of the movement of any train; and the other
vsm is whether by reason of the niaaber of hours of work performed
toy the employee, there was a violation of the "Hours of Service Act."
We will take up these two questions in reverse order*
KLaintiff was engaged to commence work for the defendant on March 7,
11^1, between 4:00 and 5:00 o* clock in the afternoon and he
continued such service until 6:CX) o»clock •£ the following morning,
having worked thirteen hours in clearing the track and switches of
fallen snow* The foreman signed an identification ticket for the
thirteen hours, and it appeaxs from the record that the plaintiff
having completed that seirvice stood in line with other men for
further employment, which is evidenced by the fact that he received
another red identification card* After plaintiff completed his
w©rk in the morning he turned in his shovel and broom at the tool
ho«se at 37th Street, and later he was hired a second time, which
would indicate that there was a new employment* The question ^i rises
whether by his voluntary act in seeking further employment after
he had received an identification card, at six o'olock in the morning.
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fwr the thirteen hours' work, he would be within the proTislona of
this act, provided he w?i8 engaged in the service that had to do
with the movement of trains. Section 3 of this aot providee in part-
" ♦ ♦ *, whenever any such employee of such oommon
carrier shall have been oontinuoualy on duty for
sixteen hours he shall be relieved and not required
or permitted again to go on duty until he has had
at least ten oonseoutive hours off duty."
Z t la evident from the record that plaintiff was not required to
render further service, but his aot in applying for further work
was a voluntary aot on his part*
As to whether the railroad company had knowledge of his
working, there seemn to be nothing in the record to indicate thst
the agents of the defendant had knowledge and permitted plaintiff
to continue work. It might be well to bear in mind in the consider-
ation of the facts that the plaintiff, after he made application
the seoond time for work, stood in line at the employ ement office
from 6:00 A.M. until 3:30 a« M., and received a broom and shovel
at 37th Street in the yards of the defendant company. It would seea
from the language used in this section of the act that by permitting
an individual to work for a longer time than allowed by statute,
the defendant must hav^e had knowledge th^t the person injured was
employed for a longer period in violation of the act, and unless
there is such knowledge, of course the defendant cannot be charged
with having permitted the employee to w»rk in violation of the
statute. There is no evidence in the record that plaintiff was
permitted to work, with the consent of the defendant, for a longer
period than provided for by the statute.
The question as to whether plaintiff was engaged in
the service of the railroad company in connection with the movement
of any train, is a close one. It is true that plaintiff's work was
that of cleaning snow which had fallen for several hours, and in
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■Bonr \tttnlAlci fad* hioo»r ntii aX ooa»l?|v» on ei oxarfT .ft*j/;^^,*8
lojVWl « aol ,jfni«fofro>.»i) erf* Jo J^n-^CKO® a^tif li^lw ,i'xo« oS ijijif ^iaiieq
Bsr *xow Bntitirlai^ toAi 9U^t ax . no ©too. - «ft|i5t* YJIk lo
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©leaning the swltohes and tracks so the trains oould be moved, anong
thtM were two main tracks upon which interstate traine moved, al-
plaintiff
thougl^did not aee any such train during the time he wp-s working.
In the case of Jones v, Louiaville & I. H, Qo. > 209 S, w,
850, the oharaoter of suoh employment was passed upon "by the court,
vhioh considered several opinions of courts of appeal, in constru-
ing the applioahility of the Hours of Service Act, and wherein the
persons injured were employed in different capacities, and in
construing this statute the court said:
"To hold that an employe, performing duties suoh as
appellant was engaged in at the time he received the
injuries complained of, was embraced within the provis-
ions of the Hoiira of Service Act would, in our opinion,
be giving to the act a construction never intended by
Oongress, The federal courts have not gone so far. For
example, they reluctantly held that a yard-master was
included, and only did so because 8 rule of the company
stated that ysrdaasters performed duties pertaining to
the movement of trains. A switch tender has been held
not to be included in the words 'other employes' in
section 3, relating to operators, etc. And in another
case the Distriot Oourt was unwilling to decide whether
a man watching an engine was included, but the Circuit
Oourt of Appeals held that suoh an employe was included
because he was, in effect, performing the duties of a
fireman, i^ioh was said employe's regular occupation.
♦ » ♦
We can see no difference between switching movements
in the yard and the cleaning of snow from switches. As
we understand the work being done by appellant it was
not necessary to the movement of through trains, or train
movements within the intendment of the act, but was only
to keep the switches in such condition in the yard at
Shepherdsville that the switches might be used for
switching or yard purposes. But for the yard tracks there
would have been no more necessity to have cleared these
switches than it would have been to keep the snow from
every switch on the company's line.
?.e have found no case holding that a section hand or
any one engaged in similar work was included in the act.
Were we to so hold, it is diffioxat to conceive of any
employe having outside work for the company who would not
be included. The act is not so comprehensive. The reasons
leading to its passage we have heretofore given. It was
not the intention to give it as wide a scope as the
Employers' Liability Act.s
Tlii reasoning advanced by the oourt in its opinion 4t
pertinent, and if Oongress had intended to include all employees
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eiig:?ged in r llrosd workj It wo Id not have limited thle section
to employeoB defined in the act "to mean per!r;o&e actually enp.iged
in or connected with the movement of any train,* It ia the
duty of a section-hand to look after the rails of a road over
which the trains run, and see that the rails are securo and
fastened so that the trains may o erate, but, as we have indicated,
he is not engaged in a service which has to do with the operation
of trains, and therefore does not come within the provisions of
the "Hours of Service Act," In the in^ctant case plaintiff w s not
engaged in a service which would come within the provisions of
this act, and for the reasons stated, we believe the court below
did not err in instructing the jtjiry to find the defeniant not
guilty, and therefore the .judgment is affirmed.
JUDaMEHT APFIHJIED.
HALli, P. J. AlID nmlB S. 3UL i.IVAN, J. OOlJCUR.
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Th« r«tum •!» th» »uKa««» r«ei.t«ii tluit it ««• ••rT«4 on "a
j»«r»on of (4*f«na«&t*«) fik£«Uj" as Aag««t IS* 1996; AM«a«t 2«th m
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f»r thft purs»oe« «f sovieii io qa««h kM •«rvle« of im»««a»; this
witien was oir<irruIe4 m»4 jtid|pft«»t was <>i&t«r«<l. Xli* Kotioi^ to ^uaA
vat ftu|>p«rt«»i by d«f«n^ant'« «rri4avlt te tHe effett tuat at ilia
tifiiA «f th« alX4Mi«4 aartrlaa af aiUBi^aaa «» ^ija h« vaa a reailtflt af
lt«« Tarii City «J»4 taat tu« paraofi al ^ia oK &4dr«as io CUiea«e
ttpaa m^m aarTlca «a« hai vaa a laaaae af t^a prc&iaea, an «»tlra
atra&4«f , aot ralat«4 ta aisg 1& a»;r *tt<y ^^^ <*ol^ ^'t ^^> <MBpIay.
1%a daf^aadlarit Ifi thi» eeuxt d«e» not que«tioB tlie rullega
ai* Uia trial eauri ui»aJ3 tha »etiftf« to qu»aii Uie aarvlca ol' au&aiaaa,
and tbft proaaa4ij)j(a 1a tiils Qonneetlaa 9kr% laiperta»t anly aa tar^dlBg
ta amplaiji 4af aidant *b lailura to a^paar. -Jm. Safitanbar 6ih 4afMti*
aat fUad a aetitlafi t« ir»oat« tha Ju4jj^aiit, vhloh net tor «aa 4«!>ia4l.
"ShM atataaant ^i elaia allagaa aa obltgitloa itptia tha 4a-
fan4a»t aa ^uara&tar by virtu* ol* a aart»in Rata and js.graaai«nt
da%a6 July 15, 1938; an thta 4ata i.aiiiair«, X»a. » axaaut«^4 a
{iraaiaaary nata by Bab«rt l>. ihiat, ▼lea-pr9«ldi«fit, vnerain it
pr«Blaa4 ta pay ta the er4ar af )i. 3* iriae/i- r, au«nt far «i. a,
fiaehar, |9»34.^, i« luatallsiartta} clnMltaciaouoly vitn tha ^aMm^'^
tlan %t tha nata thara wa« axaau t«4 aa4 dallverad an a«ra«Kaiit ba*
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t>«!tv««n thcw. fwragr*^ 13 ;»tov14«» timt th* not* of &«tf«lr«, Ino.
f«r #i9S4«ao sh«ai li»« fialdl *(»ttt of t^« Ineoa* or profits or »a«eta
•f l.«M»tr«, Ine., •% tfe« rat* of fifty «Sollar» p«r WMk," and the
4«f*ndAtit, ilaat, agr«<»8 to njhraxi&m »al^ niot« iDfty>t«nt« each w««k
•If fixnd» of LmLu,lT%t i«scj. , «kr« not ;-iV«illable thorofor.* It i*
luaatr tl3tls jprovltloa in tlan o«i«iir»«t th»t pXaintlff Assort* 4of«r«i.
«dit io littteXo mm gM«rnniM»r.
ia»t i«r«eo« »r*»«at*4l is tiiat tey eortftift crn'?ial<>«« of taio
Agroowotii ji, jr, Flschor, ih« iiajftt^ i» tUB »dt«, va.s to do oortAin
thingo «J*ioh lit hftt fmlltd to 4m, n«ne« tne wialr-tlff e»r>r.ot r«eoTor
OB tkis Jfc4ir«fl(iaettt smA r&Xw, Fauragracth IS of th# ».ir9<?'-:!i«T<t provldoo
th«t I*ok»lro, Imo. » i««0tt«i| its not« I0 t^&ymoat of )t«rohan'!lso, oor*
tolB oot^itblLialiolll lmtlii<»»«», S'tft|>»l,i««fi ^nd i;mif forsulas sol?) aund do*
liT«ro<l to JLolFalro, Ii^o. « hj g, jii. Fischer »n4 H. J, fisch^tr. fsrsi*
graph 14 Xtots tho pmt»«rty t© te* drt.iv«r«a %s tollot prsparstions,
tra#ft u&r'kMt \>9nk«, ttat«riisils» fcii7%@ul%s and all »s\ohiiior7 aq4 oquip-
SBsat u««d in i>yit:'>arinf »tt<?h toiXot preparattone. The «tav«EA«Bt of
elatis <io«a net 4ai«(ro «ay T^srfojmwoo 'by Fisoixer of his oMigfttioa
in this re»p««t, D«f«!».t!«jt *« petition to r&cat« Hif.-'- rt-a that no»s
of tilts property h«^ b#«» fJ^llTor***!,
?h.« ruls k«o fe««0 etf4i«id -Ik K^riy cases timt plaintiff oao
not rsoevor on s» $t>gr«^.(»»t utUe^'S he iiae oxaout^d uic obltc^atloat
STBilor th« »gr««Bi'««it, fet,«^3ttimy y^ Qastfta. IQ'i HI. 53; i^iJLjL-SX
V. ,Cf;rt^fifat.a)a €»w Oo, . Si^O 111, .A|>]i. 90. In tho last easo oitsJ
th* eourt, <|uotlng from Conoasasro Mul^. vi^i Co. v. ypsf^ro i^str^lsiui
jgH, , :83l6 hi. Anp. SftB, srIc' it in '*tx l-^cal azioc tliut n*» w.-c boo
first 1irofte»i«4 s ooatr»ot o«n£iet Kttistain sn sotiou for doMagso
ft|(;aiQSt tlvs othor psart^ t^isroto I'or o failurs to fartftsr prosood to
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tJk« 4ef«ndar^i» (itttt, t« m4vM>«« vny boh*j on a«eouixit «r th« noi«
»igo«i4 by L«J»«ir«, Ia«, , uril*»B •fi»ntl» of J.«te&ir«, Ino., arc B«t
^wlntlff says thAt I'or a, v<klaabl« «e&slA«r«t4oa, l>«f»r«
Wftturlty, tk« not* ««« l£i4ttjrs«4 «ed ««11 »Bd d«i.U«r«4 to nla fut4
that h« i« new th« l^ia owner «Dd rtold«r. Sho not« Itself Inpoaoo
■• OliinatlLon on a«f«6^ar«t; no Is aot & part;/ to it. ^hatfiTer ob-
Itgmtlofi th«)r« KAjr bo on th« <So2'«n'lauii it by Tirtutf ol Uie proTl-
sioa In tli« agr*«nettt tb»t «tof«naant vill nivaooo paytsonto on tho
BOto it til* fun4« of* tlv«» nak«]r« i>a^^ro, Ine., »r9 aot «ir»llabl«.
Bat plKlBtliT is not » pajrty to tti« ^^rot^ioitt and HaO no intorott
In It. thio ofiiortaiiiiig of dtfoiiia^t to tiiio ^groot&e»t oppskromiy
riifie to Fioonoy, t»« kaow of &o ml* that will ouotaia an »etioa
for onroro«fti«at of a ooatraot by one not a tarty ia It <ind without
inloroot in It* i^ar caa ^fi aetios bo basoiS •« ^no proTioloa of a
ooatraot axoiadiAi^ tho &%nite proTlotons.
V« bioXd tj^ai tao trial o*»«irt ohavkld iiavo vucat-d tho Judaoit,
l»«raiiniag tha potittaj' t«i vao^te to ct«w4 ao tiso affidiavlt of
aiorito* 7ho $A44S»«n% is taerefora r«7«roed sm6 the ^auoo io
VMuikadad.
llatoh«tt and ©•©onhor, W, , ©©near.
%l^
■:» le»*t
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«1
»«%«««'
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) Olf COOK {J-MliVi.
HOT wn4! imn. )
A^^ttllAAtD.
^ 28 5I.A. 5 8l'
!>SLIV1»S» tHK ©i>. „.,... _,_ :Mii'£,
r«sitt 11500; iai« v»« 4<me» waidi ^u4(.^«nt l9r $li^'<-' ««• •cit(!-r«<l.
In lt«r 4 •«JL#^ ration i^iMisiiif aXIu^^ed tu&t th« •iretfi«
4l*agttr«us iMi4 ljsis*eur<i; therfli i« ne oti«t«nti«n ae to eenstruetloa.
JPlalntlff t«siifl«!4 as to her «%^X(<»^i&«et by d^^f ^»(irtr«i» at their
lk»ii« fts Silts »v«jatt^«, Unlttago , on th« Suadlajr »i'tera«(»n of Cetober
B9, 193:^; Ob,* t&l<i kr». KotiLseuilj ti^&t »tj^« ^hu «Xi«6rl«ooe4 iJb
g«R«f»l bttuo* iiJQ4 li*uii«ry werkj iwu* w%» t«Xa oi' ti»« cleetrlo wrlogor
ia t^« l«Mfj4ry, I'laintiiT t«8ttri«4 UiSkt tih« ^kb fftmilifir with tliia
typt df wrlugorj ehts rwportt* lor work od J^ondit/ Bi*t <ii.5 not do laqr
latuidry vork w&\%l th# loIXo^iaif d«gr. A mIoo ;>;•&» Rlenardo «»• %!••
iHm>l«]r«4 »• 4H »«nr«et by diof oftdatito, suad piamtlif oayo tfloo ai«h«x4s
ohovod h«r vhwro U»» lamdry '»*«,
i^imiiUtfT «ay» ui«i o& Tuood&y jKorelAt^ otto '»ont 4oim to tbo
bttiomont 'h«r« tU^- i«un4ry »*• locator and built a firt in » llttlo
•o»l otevo to Ao&t tn« wftt«r io b<^ us«4 la waouiag tn* clotb«t; oko
•tiLrtftd iho «»ritigor «»»<1 *rt«'r on* b^ wa»ao4 » eou;a>* oi tubo rull
•f clothiog tbo wrifig^jE' ouddottly •toppe4; sn*? wnrit*/? th* 1 ^tof
I8S.A.IS8S
:aR **..
$Vd6C
4
•*!■ ?»*.'
tt*«d to siArt im4 Mtop th» wringer, tout vli)i»ttt vffest; sbc says
idn* «ork*4 t'lft**!) nr tvtusity ndiiut** trylja,;ii tft $&% ui« vrJjBi^ay t«
«•« W9Tki»^ th« l«Y«r %%ekwar{ :^d forward; th^% tn«r« was n* «««.
(•ktiosi of dlotU** is ttk4» «riAg«ir &n4 no «»»>• ao r«x At she jKnev
r»f its •topplegi «!&« wMst ui>atulr» to tb« itite)ri«» aa^*. loxA Mrs.
RothoeJ^'-lItS fikflid th« 0 cj^or mAid, «^•aa men&rd«» iuAt ta« vrlcgtr liod
•topi^od «m,i «calit not ^t m^t «!<>rs. tiaU4e«all4 B«id tJuaro ooulda't
b« «ei3rtb.iii|{ vroAtf vltk ta« wrijagcr* thtkt it waa ir. p«rf«6i eondltioai
ti^nt Uie «iia«ss, wiVli M^ist Mi«i«aidB, ta*n vetii t.-iCA. %q \u% liMDirj
imd Mi»* KiOitjArds moved tii« X«ver at Uie -^irksn^tt b«»o«> «C(1 fwrtli
»n«$ ii ri&aily et&rtodt pljOiitin mm* <»i»ntlim^ witia th« ««»hl»c
Mftd ooyo timt bjeio otiftrted %q ^ui u «£i««t t^irott^i^ii t^« vr^ngcr; that
tto>« Bh.<%«rt «&• Iftoaseiiod a&d tko wrl£|!^&r stopped; ta&i; ttho otatrLHi to
• trai|j^«iit«s out tko ol^aot oe it vouXd sot go ^rou^n la o t^iok
btttto^i oad tEufct 4ti&t 6i« d^ti WKS i£i tii«i aet of oiMOOtbijag tho oii«#t
tho vrljagor oMd^ofil^ «i.^t<»d »Ad Uor iei't ii«Ad «ao dr^ivc i» l^otirooA
tisio rol'Ioro; %hm.% m^« trimA to r«a«ti tho i«vor to stop th.o vriagor
iMt «Aft oiiaoltt to do 00 i'nx amA^ fii'teoa or t«oiit; uinutoo, uo tlio
l.«for woo o«»»«vh«t out of roa«Ja. ^« ooj^o t;Ufit '"iiilo hor n,ond »»•
liotvo^ui tho rolAoro tu« h^^^x r@il<»ar iii.a|^t movinij, w^iilo tho iovor
rolJi ftr vfto otationarsr* Af tor 9ia.o «x.tr«iot«4 uer iii^d oao ««ttt laf*
at»lrs and told itisso Bioiiojrdo of &*ts &otfid«at. <^o »«u> tai^oa to »
dootor ond roo<tiTOd tr««ta«i>t*
Iji « aiMKt^or of Itf^ort^iit ros^ooto ii%r tootiiuMijr vao coatro-
dlotod by otJior viia««s«o, Mtliouga i^iaiRtU'f SAid siio lUkdorstood
tUl« to operate th^ irricii^er <wd ttoodod no iA9tr.«atioBO, ^toao <iic.'^orda
tootii'iod v&ftt oa fuoodti^ tmruin^ ol too oooidoii^l oko v«Bt to tko
liasosiiMBt «iti% laalntiir OBd oiaowod aer ho* to o9«r«to tho wriD(;«r;
oiiovod hmv tho eoatr«l ttos ot the right sidft oi' tho vrtat^or «uid
Ihiv to tttm th« l«v»r to otart tho rell«ra or to nto|i tno» or to
yi&t thon in roYvrso. Itlso HionHrdo aXco tostlfiod tiiot oho ox*
>i«J"£is;
J "^ ■> 5 '^ Wt .1 * ■? '
9HB
:»I«*k
flftln^tl to jjlvlirttff Xh'X. 9p»ratloii o^' tii* asaftty r*l«a»a bay oa tip
of th# wrlnu«r ^iilfth trs>uid, l^y t«/tt«uin4t it, r«a«Mi« iA« r»ll»r« 1b
0<ui* of «»»r«(«nay. Fl.allitl-iX t«atlX'l«»d tii»t %iiH> Lnmv abaut ibii
unfety a«rfi«t tat fory,ct »teout it ^hm ia«r iia«d ^Au^jut, «'l.aiatiff
fr«t «pp«iir«rttXy et»ta'k»n sWut Vy^ilding % rir« xj^i, ti ftuai. Btov« in
til* bA««£i«&t to heat the ^%t«r« riut it. is Kot 41»put«id lA^t thtr«
w»» nci eoal »tev« ir; t,'.-j« iaun-lar;?- j*tt«S tiiat Jaot w»t«r J'«.r i»uaiiry
«o»]| la dlr^wn fr<»(i a plpa aoimestiai^ vi%^ a bi»iX«r, i^vrMua u«ia«
%h* laundry 4i^: not u>« a^jr i'ir*.
Sil«t Me;';4ikr<l« t«j»tifift4 taat alter ii** took plalBtil'f 4e«M
te tlifft 1ft%s«B4»it s^d •xpl%ia3.e4 \h«i. t»|»«»rfltU<»t> oJT Uii* wrio^ar aha di4
i!i«t ••« li.«r :.^4^ilj} uutil fe>«%v«<!«n IX} 3m s»hA 19 a'cioak 1a tho asmlag
vHttn Ttlft.lAtiff a^p«aTa<l «it th« b%e«i j|o«»;r, fitaj^lag h#r htMk h%A oaoi^t
in iiM« «rrln^>r, Mth Ut», Metha&'ixil^ smd &!»• Hl«i^i&rd« tAatlfla^
]Kl»itlT«l7 that |»l%ltsitttf ^i4 u@% at iuty %Uk9 ««y taer« vaa aoythiac
WT<mu vith th« irri&ii«»r. Ji^ir». Eatk«oiilia waya «be was nat 4tt i^o»a
Ihat Kt^rttLeg aei Trnvn si^thixi^ ^b@ut th« a«ei4ant vmtil »he r«tunia4
in tta« «v«ii1r||« Ei»» BieJn^igrda t«»ti/lad« dauyi&g "paaitlvaly* tliat
plaintiff j^rlftr &«$ iiia ae«l(l»/j.t aanplaiaad that tna wriagar had
atOiip»p#d ^ni Umt, nan waet te y»e b^iawAattt aiatt a«fiiat«<i pialatiff la
fttartinti: it.
A Mra. J-owits, a 4«uigi'it«r of tfaf ex^dafita, had g<ia« with hav
Aatket' flv^wfi to«» a i.ittl« ai't«r nina <j'a.i9ak «.. a., i»ut ratumad
aloae about t««li>« &*eioek noon. ^»i« caw ^e&a Hia^iar^a trying ta
laoatc a ^lottior far pialntirf. Mr*. Lowita ^aicatf plaintiff ha« Xhm
aeeH«r^t haf>i>«nad «m4 ]»laintlff aald th«r« »aa a pleea of laea
wlfl^lag itnalf «if«9u»<} tka wriAK«r mxA m« w«» trylai; to pull it
a»t» a« »ha tJNutigHt It might %«►«», .*^f 4 lo •• ilaia»s h«r t^ar.d aaugiit.
Sana ftlaharda t#«tiriad that sJ^a toaard tiAis aoavarsation and hward
plaintiff «ay that ahtt waa tryi&e ta ranava a aatall plaaa of Xaa«,
•r aaai«thiA|g, t^mt i^ot eaugJbt ajrouad tba rallaVt and is tryiatf ta
u Ta
it
b* did tixla work i'or U^« wmiuf^«turcra ol tn« w^fc«iiia«; liuit » f««
«•«*!(• l>0i'Qr« th« u«eld[r£it h« &%d6 an Inspstttioi) of (l«f •fo4&rits *
A«,«]ril»«, going •V*!' it •tttir«ly, Qpftratinii^ i%* eH««kiag it for
proptr «p«r&tl9n, is^niu^ aver it gaiiexiilXy to «•<« tJi«t t<t«r« v«r«
BO l$os« eaan#etloat. ia testis i#v1 t<i.&i qu ihtki acoaeioa h« •pest
approxijf.ut^Ijr ^ua hour lfisp<»atin^ tho i)^ucaiii« >Mid s\>aafl a« Mi«Aaiii
d«f««t in it oi' anj a iture. 11»« «lui«»a ddterib^d ta« vringor ••
nttfuynlealijr e»si3»et«d to ttio aM»t«r #it^ a b«lt. a* t«otiiiH at
to the aafsty 1»ar or .lAvle* >it %hn lap of U&« wrin^or waiaii, wbm
pusJriO!!, i»us9'llat^ljr r«^«»««!B tii« tv&slon of Ui« roll«r«. It i« a
frietioB drlv* vrlfigar; thutt ife, th« powor l» <»ppii«4 to tlio lowor
roiXor and tin* api?«r rf»lX@r turiaa by friotiott a«aittst m« Xovor
r«ll«r: tn«> uppor roXioT eistuuot ai»*rat« vhor^ vho Xo««r roiXor it
i40t turniA4£, %i» ao«ffi« t4» n«i^&tivo pXttistiff *» toatia^ajr that vhon
hor han4 vaa e&u£At tiio ttpp«r rciler was AOTmg by ita4»lf vhilo tk«
Xowor roXXor soeKi^^A ti^ation^ry* HougXas furtiier t«stiri«d that it
woalf! b* s«oHw9iieaXlj im^oeoibX^ for tte« nai^lae to otop for fift
or t^«8ty «inuto» «ltb; aiXootrio 9«v»r turaoA en asdt thon to atari
a^^ain; Ui»t 11 ih« saehino fito(»p«4 for that X«ti£tb of tiiso -alth th«
powor turai!)fi on it woald burn out tho motor or fuao; it would not
• tart of Itc own »oc0j[4. rh« eourt aakod vhtthor puttiJie » Xarfio
«milt or a^ioot ia tho ytrib^sT Ki^'it ataXX it. to vhien vitnoaa ro*
pXi#d tt^at thia «aa p«oaibXo but hardXy likeXy.
Dofondanta ar^uo that pXaintiff it%a not proved tho apaolflo
defaet in tho vrlngor wi'iicii caaaod it to atop, citing o^Xil.t ▼.
Worn or. 15X XIX. SfiX . in that eaao a aeaf foisting fall; piaiotlff
vat hold to havo prova» the dofoot aXlogod by ahevin^ that oeo
il
*ii4
'f «•
•f th« J«l»t» wM kjivtty «ad n«t {>ro9«rly satlM tr ¥r«ve«4. In
JteS&t-JLi-jtMijiL-i-fia.. 140 111. App. 408, f»liilntirf«» hmd v«t
•AttSht ¥«t»««« ap«)»r •»(! lotr«r iMttu; th«r^ w«e cvif^rae* tnat th«
•A«hiaft ep«r«t.#<l «)*f«0iiv«Xy; it w*e «rgu«(l that nloilntiff ii>id •«!
fr«T«(tt th« iiaLrtieul«)t.r ri«v or lui9«rf«eti«»n wai«n Qaua»r| tli« i&.
i»roi»«r worxlBg or Wj« u^t&nine, '£hB court wait? It T»«a 6uffl«l<»ttt
i« f>roir« thAt It l!Bi»roi»«»3Ply *p<ir<it«»<l. cttlB« Itw^t. SjamaiHiue ti^
«$aSSL4:»iLjib..JF^JiJBi!«i:. J-^« Hi. A|»s>. 64 S. «n^ K^l.tn.v. Waldos ■>!,
1©1 111, 4t>»» 5$t. S»# «l«o %<f-fit^r V. l*Of l«».yie^.,..Co. , IC3 111,
In th«»« e«ui«« It Ifs h*^li tkat 'i?hftr# evia«re« ©f d^fActlTt
»Y»#rt&tioB »a!ti»« ft prim* f.^«i« cftji# of a K^^feetlvt aao/iiri*, te !••
i»es« llAl^lllty en the «i«epl«y«r It m^mt b# proven th^t hft k&4 pre-
vious noti«« of ffueh ««feetiv« »e«r*ti©B ©r stieuld &«»• kaovc i|,
ilbOi9l|rlA|e th^is tttl# to thft iastiact ««e«, plsklRtlff '• testtioay that
tJbi* #riai?»r »u?i.dl«isly «t©pi3#4i ©p«rAtljj<; for fiftewi or twenty ftin«t««
• r wort *n<J ;h#H au;-1>5««cly at^rtfrd «.:ai» wlg^^t \>ft »«ld to sake a prjiui
ffe^lf «*•• of 8l«f*ettv« »fe^c ia«ry, ulthoug^s tha t««tiBo»y of t*>Uj,loi
i)i«t tmlo woul<l 1»# m«Ghi»i>le(».lly i^posail^lo Qt^sts an eh doubt en
Hlointlff *• t«»«tl^0«y in this rfstpeex,
jiotroT'fp, wo #r» of the opinioi-; ta^t tho grtiAt^r weight of
th« •r»l4ene# Is agslBflt »li*intiff '• claifi that dho notifiod Mr»,
Rothoohil'l of iho «llft^?d €4f^9% In tho n-rlngor b«ioro tho hop-jtonlac
of t1i« %o«l4«nt, Mr«, Roth«cnllfi*» t«?eti%dn>, oa^portoA by taot of
)ior Ittui^htor, Iro. Lovits, tonle to na»^ th»t jiro. Rothooiiild voo
!!•% >ioai« ot tho tlm«t ;>l<&lntiff «eiy» 3h« tel4 iK^r ol U)« aioi/pinK
of tho wrinic»r. 2«b« Hioh«rao <!iroetly oontr»dieto alaintlff *«
tostiaiofly «mi to ilii« iueidoAt. X)io tostinony of tiidoo vit/A^otoo,
In ooanootion with the tRatli.>3tosy of Dou^laa, to whioii «a aato ro-
forro4, no«j%tiiroa plaintiff 'a atoary «« to tiotico of aoy dafrot i*
t*<f0
\i ■«•
th« «rlfij|«r, «• «r« volX a«^r« t^«t UUn 1« a «|u«0%i«ii of tn^t
pro;»«rI^ to fe« »yito«ittea to ia« Jury, feut */i«» lt« T«r41ct is
«tt»ir««Uy «M£iii«i«t tb« ««i#it 01 the •vl<5«Eket ib ia out 4uty u
FlSiintitt*» •^qa atery It^^t %Xao«1i lyrvtiAtably to tii*
oeaeluft'lofi ihistt <%• «ubi« pi ''ia«4l a »is»«»t iii tJti« wricg«r it beonaui
^tftaoh«4l up «t9 a« to r«t«ur^ lii« iM»t oi ]p«i«aiag )»«t9a«n ih«
roller** sm^ while »h% va« att«»i|»tin4^ te «in<»oth out this baiieh
i««4aT»rt«utly h*r finis«r« i»«y« ftnaght 'b«tw«0n Ui« rsllora. In
tiiiii e9im«et^ieB w« «(m»dt udarataBa, if, «• piaiatiff vayt, sh«
w»» i2si«if«ti|(ia3Ly tmmiliaje «lth th« «a*oliJMii«fli ot th9 wring«r, way ah*
€14 Met i»a»«^l%t«ly witii ill* 4»iU#r aaad tauoh Ui« vafety btur, «hiili
woiti^ r«»lei»«« tii« t«B«lo» of t^« jro4X«r« im^l permit tlui 'Withdrawal
of the hai^d wllJia ^rolxitbX/ «>light injury. It oiiM^t b? aaid that it
i« tauiiir«r»aJily Ic»qw» that a tioti^ttt wriagar ai thie typt is
haserdQua te th« ai»ttrai<»r. the 'Jaitigar t^'iat tha i'lngara «ay ba
draw» b«twaa» tha railara ie 0|»«n loid apparant, jdad graat oautiaa
w&d (iarftfui.»aaa jeust b« ui»ed to avoiil thia. Xh«re ia toraa in tha
»tt£gaA«ioj» that plstim^tltf was nat a« timiliskX with thi» typa of
vringar as «h« rsprAaimtad h»jraal) ia ba, fmd Ux»% th« aaaidant
ha|>|»il!»a<l )»eea»aft of iaaiii ai that dagr«« of eauti<m whiah ax-
]»ari«ne« woui ^ taannh oatet b« uood ta awoitl &oeid»nt.
Tha v«r4i«t af tha Jury vraa f9t ^ZUHQ, froa v?nia}i plain-
tiff at tha augg««fltiait ef th« court ra»«ittad ll&oo. 'Xhia ianda
att|»9art to tha ]»olst that tha Tardlet of tha jury «aa largaly tha
rwsult of paaaioB aod ftra^tt^iea. fhe evid«aea aa to the extent pf
tha in.fury «ottl4 nat Justify tha MiauRt tn' tha Twrdiet ratuxnad.
Cauusal fetr dafac^fianis aarn«stiy ar^iuas Viat arrers wara
••nalttad by tha trial aaurt in hi« rulings and iaatruatiana ta tha
4ttry« W« iir9 inalln#4 ta think tha oourt was juatiiiad in adaani ai^»
iAff aatinaal vta to tha naeaaaity of oeeapying lasa tlica in axaaiiaatlMl
»*i* ryt 'nx.t^fjrii^-at^s I'?;*;-*..-
Mi
■■4*>,i*U* t*.
Dili's *r
v)rj«i"»««r
•f vitR«ai8«s, and tb#r« van no r«T«rBibI» trror it. eontiftctloB vltk
tbe instrufltiona.
th» trial rtmrt nroperiy r<ifui9<»d t© ftiT** th^ e9«ci«il lo-
tftrrogittorjr requsetsd by defeiitiaati. Th« lr*t*rrog;.tiory Jolnedi a
tt»»b«r of <Yu««tionB, to whioi. th« Jury ml .ht Ktak« iiiTfrent
«n*«ftr«. Sttch int9»rrois«itorlt« «gURt fc» «ln«;,l« *ad 4ir«ot. »9\ff
iJtg.t ,^i. 3U .JUlg-OP > 152 111. 9: gjg^ jr ,. ..C4B «0»a»fia ab o r r ^f C(^ . ,
»i» 111. S44: v.^f^T. yrftiykjgt 20S in. app. 133.
It 1« unn#e*««i»ry to n«t-p «>ti»«r Brr^r* &i«l<1 to hsTe oc-
eurr#4 apoB tls* trial «• t/R'»»« will nut llk*ly occur ngulB.
KTliftnB* «« to th* «5«in4lttfln «if th« wrine**" •J'twr th» aa>
ti^-fABt W',iul4 harf ■b*«K of j»ani3'-;oi»nt Yala*. &e auoh «>^l<1«ne« »*•
intr<itdU'3<i<l. fh«y« it Is »»ndwn tix»t n maohiQ« ^un not V«*n ohan^nd,
tYi?l#nc« of It* Ci^^xlltifin ^ft^T an »e«il4«/U l« ftdbKi«sll9l«« 3laak
y. Harrly. SOO 111. 9f{ M»»K\iyy t. Mollne now Co.. 19» in. A^y.
jPor tho r«^a»©a tii«i iht verdict is *g!%ir»«t th« »&nlf««t
ir«l*»ht of th#» «vl4«'ifje«, th# Jud^oRt t* rev*rs«d an? th« causa
Xatetiatt and O'Connor, JJ. , concur.
. *i aft ; J* \i %'yf'V -> ••» .1 ■'5' J *
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.«:(% $■•.*?.««.'(*»'*
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$8733
) AFFINAL ITftGll liUAl^FAL COUKX
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2^!^ T a. p^81^
:Ma«lvaiiET) THK onuum o^ fm oguht.
Flmlntirf brottgbt »aii, t© r«ecv«r Iron A9f(%i*,t*nx hit «l-
l«(S«»r) Rhar* of cflirii^in 9jcpetn0«s irieurr»4 by th<i VilJiag« la connse-
tl«R miih %h* s|>*«l»,l ift»f««ms&«i:it i'<»r paving H«rl«a av«r^tt«: 4«f«ti4«
ant flX(»d A eou t«tr«laljB to recover tuiAtk eaurta^in @ imK wuleh he htui
paid! to pixilntlff ea aoeouat of Ui««« exp«»ft««; »& trial \y th«
oourt the i'lnilAg wak Tor j^lainti^T ar»<S a^iainat del>nda<}i an hla
oount«rel%l«i and Jud^Maut wei9 @Bt«ried ^ai&st d«f«c,-)ajrit far $1050,
frotc wi;:leh ha a^p««Xa. A mera raaltaX oi' th« faata daatanstratet
that tht eonolusloKi oi' thi» trial aourt waa ,*|uctiritt4.
In 1932 plaintiff paai«d an er^linanea proYiding far tha
paviai^ of Earl«ffi ATtnua im.il thet l«Tyi&g of Ktpeeial aawestKants to
$iay for thia, rttultln^ 1b ih9 onnflrmatien of an asaansr.ant
against tha proftarty of d^fumaant in thf> num. of $10,697; defendant
a|>?«al«(t fro«B that jud^t^nt to tha Sapre«« eourt, whioh appeal waa
dllarrissad. Api»%r«*ntly d«fandant attampt«d to fl|id aoaa va^ ta
avoid paymajtit af thia jud^ant; to tii« <»bA ha antarad into cege-
seeking
tlatlone %ith tha County af Coojc/to a%v(% it pava (Uurla» aTanua at
ita own «xp«naa, bat in tkle he was un(iueeaB«ful; daf«»n'laiit than
nagotlatad witii tha di^iwiky OapaxtAant of th« i^t^t« of Illicoia,
•aaJilng to hnrfi tha pa-vea>«nt of Harlan avanua Mada by tha dtata at
ita axpancta; i*^a a raault of thaaa n«f;otiatlona tha i^ighvay Oapart-
««it acroii'd to luaJra eaid iKprovamant at ita ovn axpanoa providad
thl« waa agr«<^abla to tha truataaa of tha Vlliaga, w.a ta any con-
tractero with whaa tha Villa«a had aatarad into eoatraota for tha
«akiA£ af thia ibprov<(i6ant.
■ff - „fi T ?5«§
•iij
•«»•« i
X>«f#niiu}t t'>«n wought to indue* th« trust*** of th* VHXi
to eea»*nt t* hft-ve th* iaproT«m««it on n*rX«Bi avenue aad* by th*
Stmt* of Illinois; at tni* tl^'* th* «**«s*n«nt rol* showed «■•*•*•
m*iitt ikgalnst proi>«rtic* of fiT* parti «», inolutiinf; th* OB***NM*Bi
of ^10,697 against d«f«»ndftnt** proptrty. Jun* 9, 1933, defendant
•ubsittHl to th* VllXag* a preposition in writing in «ai«h h*
«iatM h* a»r*with gav* hi* chsok for 910u.3d in conn*otien with
tl^* s^>«eiaX a*«*8Ciit«nt ior paving d«rl9Ki ?iv«nu*, fisi<i he tk^r^r^/i t*
pay to th« Villai^o en or l>«foro ti^o firot tlay of oaeh t&onth th* oiai
of $190 until th* UMKk of $11^00 ha* b«*n naid; th* l«tt*r r«>oit*4
that th* total, of #16<.0.8!6 r«» ^restanto the ttaount which d*f«ndant
had co«iput«d ao duo freci his a* intf owner of th* property on
Harlan avanu*; it «l*o 9tHt*d th%t th* payvonte aado toy dofendant
•hould b« h«ld toy the attom«y for i)^o Villain* in «*orow, *nA
that «h4» th« total amount of $ldOo.36 ha* b«*n paid, *you will
▼aeat* th* above ai«>eial a*9e«>»n«iitt ani dioohax^o ao a lieia *f
r«oord th* ahot* tsfteial a*s*«es:«nt» ** Xh* letter continu**:
*I on^lcratHii^ that ur>on r«e*ipt of thie l9tt*r, y u will
imodiately iai'!*rt)ik« to obti»ln froti; th9 follow Inij. owri*r*, th*
aaoiml oot oppo«lt* their /n^*.> otiv* nmrnta an'i that it will rociuiro
tho paynont of th@ follow ing asMiunts to eoffipl«t*ly di*«<;arg* th*
•tooTO a*«cenri»nt proe*^4ing{
for**t Pr4B*rro. 760* U. 346. at
tio*li to 30e. 5 • 57o. 6P
itarrott 213' 3^2. 3«
Bowsnan Dairy 217' 309. M
fihoald you finij tiiat you ^r*. not ubl* to obtain th* pay»*nt of th*
abov* anouato fra»i the above owntr*, «iiji*r in oaah or in obliga-
tion* or Acr««ifi*fit8 that you aiall docid* to aoeopt, that you viil
rfttum to «• all p<iya«rito whi«xi I aay hav« &ado ii&j3*r thi* Agr**-
Tikis latter was »ign*d toy 4*f«i*'1ant. Upon r*o»ipt of this
proposal the officials of th* Viilai;* aeoopt«d it, and tx)*r*upaa,
with th* con**nt of tho eontraetoro, eanoolied all outstanding *oa-
traots for work in oexin^retien with this iiitprev«««&i «tf)d advisoA
tko Stats of Illinois that it h«d no obj«otion to ito prooooding
with th* iaiprov*fii«>nt.
4^ \'
if:
; Slim
. •*•■!£»>.■■
•«n*f
It ««• iitipul«t«»d Xhmt %h« Ylllis^i« had Incurre^i eertaln
•x^cAAR* in coune«tJloa mi%n trii« Inprova&vnt and had ie«u*d It*
-vattchera to e«rtain |i«rtl«8, Inoluflin^ a paviug ttonpaux «hi«h hai
e<»iG!&i«nettd a portion of th« pr«lli4iii«jury vrork, Th« •eiiedul* of
|i&ym««t» eontaln«d in th* l«tt9r of daftm lant is ltaa«d upon tho
•MOOBt n«c«»»«*ry to r«imtjar»e the VilijA^et I'or Its exp«n8«o In thio
oojaneetion. By th# »nt«rpri8« of d«fiiind«i*t ho had thuo roduood tho
aaotant of hi» a«B«««m#nt from #10,697 to iX6\A>,2Q, By hlo dol>c«o
1b tho pr«^oo&i action ho s^^ko to avoid 9«i.;mf>int oi' any aibount.
Aftnr tho aeeoi»tftrie'<' of <^ef «»ii >aut *a prnpooal tho Vlllano
proce^i"*! to %ii^ '^i-f cpllsct frois all th« p^rtloo n^aa^A in tho
1 otter the «£«-^tmt dluo fttm thorn, nxeopt i'roia (ro^litz, which oub,
aiTOuntlBe to $370.«f , &o«Xita r«fu9<^d to pay. It va» otipulatod
thot tho Vill«g« wao rii»ady, willlag and -Able to vae^to tho opooial
aooooojaent proco«dlii|E« and dtoohargo it as i& lioa of rceerd upon
dof«»c1a£>t *o property upor. th« payi^eiat hy ixi» of tho l»alaBoo duo
undor hlo prooosal, iiaat«Xy, ^1050, and ir.nX no e#rtifleaio of ooa*
plotioc or of aeooptain^oo h&a boo'> filed u,. th« »aeolaI asaooomont
proo coding.
Dof fttJtdl^Uit art^u«!'9 that hie promlire t& pay wao oondiitionod ca
plaintiff oolleotlng from all tho porseno naz&od in hlo lettor tho
uiount oot rvB AGtiroly aft<»r th«lr na£}O0; that tfioy have not ool-
loetod i'tnm doolitai, hmic«^, it in a^id, plaintiff hat not perfomod
th*» eonlitlon upon «rhleh <5of«ndsBit promlesd to pay. To thio plain*
tiff r9T>ll«>fl that tne coBdltion ib^poaod uoen It ix> dofondant's l«t>
tor vao to obtain th« pay»«rit oi tho anoant oot forth "froa tho
a^ov« ownnro, «lth<»r in oaoh or in obXigationi or agrooAor.to that
y%n (tho Villaco) ahall doaido to %ceopt.'* Pi.alntlff admlto thai
It haa not 9«eur«<l eaah or au agroooiont to pay $370.69 froa
Uoollts, but oay* that it liao an onf orooablo ohllgution ««ainot uXm
arlolng Cndor tho opoelal aaooooi^ont proooodln*^ ohloh la otlU
r VI
•#1 ft^
«i«i4ja!t(*ai «».*jw i 1
i»iiii.iam«fKft
-.1
• * t'j LbtiJ **
iO^
lis M&d-'*? "te sK
ffiO ^ii i
- CI
p«B<fliig; thftt th* Yill«ff« IMS « llan upaa th* property of Uoffiits
whie^ It « tr«ll4 aii« «iirore«&bI« •^llgaktion aeainat It, ^<4 th<i
Ylll»«e otTiclalt hair« (l««ld(»d t* Aocept this oblltfatlon In «ooord-
«ne« vltb tii« t«rme of <}«f cfida^t *■ X»tt»r«
B«%h MttA**! vay tltuit th« Stat^^ si' IlXinolK ha« eoBit>l#t*d
tb« latpro-veffii<mt e on t <!>!<(■ pi wt«<l %y tho^ or<}ir>«riC« providing fer th*
pATcm^nt of H«rl«K AVftnu*, and d«f<>ijdttnt eays that und*r aieh cir-
etuflstaneitfa plaintiff has no OBforoAatolo obligation ftgainut tho
property of Oo«lltB, bwesuso b#foro tUo proporty ear. b*" daot^d ao
dollnQui^nt fin-*, ^n^nlfi. for Ron«paym«nt of any Inctali^ «nt of a •p»oinl
aao«8SRicr>t it ia n«e9iSBary for tho Village to flXo a e«rtificato of
ooot and oonpl^iion, waioh, d«f«Mridant says, tho Villag« eaanot do
ao thoro wa« ao coat to It, th« work hstving boon jonc by the Stato,
Vo think tho poaiti^u of T^laintiff ia ci^rroot ^hon it aayt tliat vho
iaqprov«ss«nt hao not boon abandoned, tiit^t tit!>«rft haa boon t •rely a
aubstilution of the Jl»tato a« the a^«£^«gr doln^^ tho yiork i£>st«ad of
priyat« eontraot»ra; that thor'S io Botnin^^ to proront t>laintiff
fT^m filing a e«rtlfi«>at« of eoot and eonpletlon af>d ^imklni. for on
abatoct«nt of th« ann^s^.^nt aM'^liist tho property of tfoolits in
0X0008 of tho amotast i^etually oacpendod by tho Village in eonnoetiea
with th« *orJt.
Vo ooo no Bub@tafitial r«=a«on why def ondant ohould not pay
tho amount ao oati inM in uXb oroposal. The Village haa agroo4.
upon daf onH.ant'o wtiiiing thio paynant, to v»c%t<» th« ap^oial aaoooo-
Mont and dioo'iar^o it ao a iion of record upon hio proporty* >io
would thtto obtain axactly what ho bar^alnod for.
8<Mao argtmont io «ado aa to tho rulings of tho trial court
upon propoaitiono of law aubmitt^d, wut notiUn^ epooiMo io indi*
oated. in any 9>rant, it in unnoo": aoar.y for ua to oonaidor propo*
oitiono of Isiv if tho judijiaont of tho iUwioipal oourt froa whloh
tho appeal ia taiion io oorroet. feortn qhica&o City Hy. Co. f„
■»Mi
it
.•*
t
xftial
^•nAdo ... ;: #*«ilX4)
t^r -*.»<•
Tfwn fff L;^^ V^^^y, 106 111. ao7j Wgber y. Krtttt.£y]r, 2o3 111. App. a?,
H»,fCff<IB,,.T« StfftnLTCM#l.antA3g >1tHt>? fctink. (Ab»t.) 269 111. App. 444.
iidr«eT«r, f>ro«)e«ltion» of law «r« ii©t B«e<9»»tury under tk* pr«»«nt
• tatttt*. Ill, Si«fe# B*x ati*t». IV 35, par. 1»2, ehap. 110.
W« find so r««k«oa to UBagro* with th« flniing of tho
trial oourt aus4 Ita Ju4g»«fit is aiTirife«<!,
AJ^jriRM^S.
«• t V ::■ .-J f ■
38631 "^
IIA15S Ba^TSEN, MKiiiiistrator of the l^»^
Bet ate of iJettie Bent sen, Deceased, ^T\
Apoellee, )
) APPS^ti mOU. BUFiRIOR
▼ 8. )
WILLI iUii C, PAirZBR arid FREDiSRiCK C
pan:^r, )
Aopellante.
) COURT OiJ" COOK COUNTY.
28 5I.A. 5 82^
MR. JUSTICE MATCiiSTT DiSLlVSRSD Td'^ OPIiilOK Or THE COURT,
In an action on the case plaintiff as administrator filed
a declaration in three counts charging defendants with general
negligence, excessive speed and wilful and wanton negligence, re-
sulting in the death of plaintiff's intestate, Nettie Bentsen, In
IMMh of the eeunts it was charged that defendants '^possessed,
owned, controlled and by theaaselTes, tlieir agents and servants
were driving a certain autoiaohile," etc. The wanton and wilful
eount was withdrawn. Defendants entered a plea of not i:::uilty.
There was a trial "by jury and a verdict for plaintiff for ^7500
against both defendants, upon wiilch the court, overruling motions
for a new trial and in arrest, entered Judgment. Defendants ask
us to reverse this Jud^ent,
It is urged for reversal that there was a total aosence of
proof of own-rsiiip, operation or control by defendanta as charged
la the deolaratioa; that the court erred in penrdtting iKproper
evidence over the objection of defendants and in refusing to in-
clude in Its Instructions to the Jury certain suggestions tendered
by defendants.
The evidence tends to show that Earch 23, 1932, plaintiff's
Intestate, liettie bentsen, died as a result of injuries sustained
by her December 27, 19 31, at the intersection of i^ong avenue and
Henderson street in the city of Chicago, Loni^ avenue i3 a public
highway extending north and south, and Henderson street a public
highway extending east and west. At the time oi the accident Jnettle
."-.U_r i^.C
^8 S oAoI S o^
XSMt
Ui-tAH
.tjg^aX
.sv
' fcne HSE4i .
JitB£i0(ic:i\
I
..IBC TTSliOTAM aOISbUl .Hil
: J .UBhtlo'lSG.
J »i- jU, i.' -i
10 soar* J I-'
cau*:/. i: isif^' 'to ajQli9»t<S9 dJtW' taTo »on«ftlv«
';o»i»i)a©Ji
B«ntBMi was riding with h«r husband who was driving an 01d«mobil«
autoiaobil* in a weaterly direction on Hendtraon atreet. The Olds-
mobile was atruek by a Buiclc owned by defendant, William C, Panzer,
and driren by his son, defendant frederiok G. Panzer, who was driv-
ing in a northerly direction on Long avenue. The colli aion occurred
between two and three o'clock a. m, Nettie Jbentaen and her husband
ha^ been visiting at the home ol' a friend, who resided on Henderson
street about a block hxid a hnll' east of Long avenue, Ihe evidence
tends to ehow that as they appro aolied the intersection they stopped
and then proceeded to cross at a moderate speed; that tiie Buick
meanw^iile approached the intersection coming from the aoutu and
struck the Oldsfflohile in which deceased was riding when it was
just past the middle of the intersection. The da^^age sustained by
the Bulck tends to corroborate testizaony submitted by plaintiff to
the effect that defeni^anta' automobile was being driven at a very
great rate of speed, the verdict of the jury was that defendants
were tiuiity of negligwico, and it is not argued that the verdict is
against the weight of the evidence. The evidence shows tuat the
Buiok Ttas owned by defendant William a, Panaer, but was driven by
his SOB frederiok, who was then 18 years of age and a student at the
Lake forest University. The father was not an occupa<it of the auto-
mobile and was not present at the time of the oollision* The son
lived at home at 5S24 Warner avexiue, and on the evening of ])eceiuber
2d« 1931, attended a Christmas party at the uome of a Mrs, Uchults,
3844 iiiorth Long avenue; the party was one where relatives and friends
gathered. Apparently Frederick Panrer drove the Buick to the homo
of Mrs, Sehultz, although the evidence is not definite in this
respj»ct. The car was pariced in the street by tbe curb in front of
the Schults hoKO, and early in the morning ITrederiek with a eom-
paolon, Frederic T. Stolley (a brother of Mrs, Schults, who was 22
, ■ i.i.. \Q i iit! \f X X ir. t-***;
...... ,,„.<'^,:> V.,,..:- ..vw,-; .■v««)w4.9(f
»rf;t i"* Imfeij^fi i IKK4* a*>J orfw ,3l«it»b«*rt hob it Id
i&el'ifleoeCT 'to ^ain^'/s wJo n.«W ^SJSt! *« e b&rlL
3fi tf
:JX«xi08 .BHil 'lo t*ii;rc'
years ot age and lived at 3731 Eddy street) come out of tiit home und
got into tiie car with i'rederiek Panzer, -nho tii«n drove the car north
on Long avenue.
Hobert Wesche, vrno vita a Jdles ivcKanK, his brother Carl and
a Mr. Cady, also attended this party, left at the same time In An
autoHtobile which followed the .Baiize^r car north on iiong avenue until
the oollxsion occurred. Other than as above recited, there is no
evidence tending to show by wliose direction, or with v?hoe^ permis-
sio», or for what purpose th« car was being drlvrai. William C,
Pansier did not testify in the case.
Defendarit argues that th© court erred in perndtting evidence
to l>e received as to certain slEld marks on the road at the scene of
the accident and cites Sillingsby v. aullok. 852 Moh, 235, 235
H. W, 235; Marine v. atewart, 165 Md, 69 8, 163 Atl. 891; JoJ-mson v.
C, & A. R. R. Co. , 193 111. App. 632; Mer^ants Loan & Trust Co..
y, BcuQ^e.jry 115 ill. App. 101. We entertain no doubt that upon lay-
lag the proper foundation, evidence as to skid marks in competent in
a case of this nature, Briley Vy ^uasbaiua. 253 Pac. 223; Vedder v.
Birel'ejy 267 -Pao* 724. Indeed, evidence as to these skid marks was
given by defendant, and much of tiais evidence offered by plaintiff
WAS received without objection by defendants, who cross-examined on
it at length. We hold there was no reversible error in tbie respect.
It is argued the court erred in refusing;, to give defendants'
suggested instruct ione Bos. 1, 5, 6, 7, 8, 9 and 10. At the time of
the trial section 67 of the Civil Practice aot , since reoealed (111.
State Bar stats. 1935, chap, 110, p. 2447) was in foroe. It pro-
Tided, in substance, that instjructions by the court should be given
only as to the law of the case, be in writing, in the form of a con-
tinuous and oonnected narrative and not a series of separate in-
structions; that the parties lulght at any time submit to the court
suggestions orally or in writing, and before the ease was argued to
t^Mii0r» :^aoJ. fio
bft. -
n* >. . •
on , .fc-^iiiiaoo noisxXXo© 9At
.y apgiv'c' ; .. , . '-^dl ,?.H'^'i-*: '.l^^^JtLTM .'^^^ •* •*
.^^: . --ii_ii£fiii.jy4'i ■ ; ♦ ' '- L-Ai^LJL-sQl
-Y«i flofjt; trinit ;J-o^jcjc»l? on nj:s: . . <iA ..f.Ci -'j. ;. ^-r^HaM^d .y
. ; , , jo', fiiiof 'fount- ;'ii **-'i"- ^un
-.f.- -. , - '10
the Jury th« parti** akioiild be giTen an opportunity out oi tho
proienoe el' tno Jury to r««4 the instructions which the ceurt pro-
posed to give au& to make other or furtaer saggeetions eib to mat-
t«ro emitted, or ol>j«otiono »» to cuoh parte thereof at were deeaeA
to be iricorreet or mleXeadlng, "eueh suggeetlonc or objeetions to
be soeeifio"; that 8ugg«»tione not adopted and objeetions Butde but
overruled might be aade a ground lor review but must be made before
the Jury retired from the bar or within such further time as the
trial eourt aiight by order allow before the jury retired fro» the
bar, or the saoae would be de«i<ied to have been waiyed. Defendants
did n»t aake speeifie euggeetione or objectlona. On the contrary,
they submitted ten nambered instruetione, and the only objection
•oaoerning refusal thereof is as follows:
'*jii4r. Denaen: ^ow , if the Court please, the defer'dacte at
this time deoire to object co the court's rel'^aal to incorporate
into the def «iiidantB* instruotione the eug^Etstions I'or inntruetions
tendered by the defendants, whicM are ne follows; * "
followinig mdoh are the ten inetraotione rec^uested. We thin)t, aa
plaintiff contends, that the forss in ^hicb these requested inetrue-
tions was submitted eeuld hardly be called specific suggestions "to
aeelet -th* court in fully and accurately instructing the Jury as to
th« law* within the meaning of lorrarr section 67 of the Civil Prac-
tice act, Hotsrever, we have given attention to these requested in-
Btructiona, us well as those Which were feiven by the court. The
lenues in the oaae v,'ere eisiple, arid InstruotionB concerning the sasw
were i'uil imd accurate, covering well the propositions of law ean-
cemln*.: v loh defendants desired the Jury to be inforiiied,
Defe^daTits discuss thcee r©<tueetfcd instructions in detail
and cite eases in which it has been held by t-xie court aoid the
8*preae court not erroneouo to give the same, Ihe question, however,
of whether it it error to tiive a certain instraotion is quite dlf
ferent from the question arising upon a claimed error for refusal to
give it, A requested instruction jaay be entirely free froB error;
aei^eet
ttJO^qo
^lA^ £>:
^tii s«
■a
, :toi*,iiJii3
,ii dv/«
nevertheless, if thn propofsltlon ol' Xaw vnXoa. it aaiiouncea has 'b««i
cover«d Isy oth«r instruetionia givea to txie Jury, it le not error to
refuse It. Indeed, the number of inetruetlons upon a given proposi-
tion of law ahouXd not be needlessly nultiplied and too luany tend
to confuse the jury to suoh an extent as to muke & reversal neces-
sary. We hold there was no reversible error in the rulings of the
eottrt on instructions given and refused.
i'he controlling questions in the case are rais&d by the
contention of defendaKts tnat the judj^jaent should not be alJ.owed to
stand against defendant WtlliaBi u. Panzer. The onlir evidence tend-
ing to connect hira in sjriy way ^'ith t>ie accident is recited above.
He wes the owner of the Luick autowobile; he was the fath(?r of the
driver, who was a minor, The inference perhaps would be .justified
that the eon was driving with the parmisaion of the father, but ther«
is no direct evidence on that jjoint. The father diti not testify,
and the son ^',ave no eviilenee othar tnan as above reolted ay to these
aatters. The liability of the father cannot be inferred from the
parental relation ship. The '♦fs.isily purviose" doctrine in cases of
this Jcind has after muoh consideration boen repudiated by the
Sttj^reme court of Illinois, ArXin v, Page. 287 111. 420; White v^
S«»l %z . 342 111. 266; Anderson v. Byrnes. 344 111, S40; IAiil<>r v..
MoHa^le^ 263 111, App. 471; X-pwaeriailk y. Gibbel . 263 111. App. 384.
It ia contended in behalf of William C. Panzer that the
proof wholly fails to establish $oint liability, anti that the Joint
Judgjraent oaiinot therefore be permitted to st-:aid. It iP also urged
that a judi^ent against eeveral defendaKts is a unit end cannot be
reversed as to one or more of them and affirmed as to others, citing
tivak V, GhicaKO & Brie R, R. Co.. 395 111, PI a, and kcDerrott v.
A. B.C. Oil Burner Sales Corp,. 266 111. Apn. 116; but the un-
doubted rule announced in those cases has been changed by the Civil
Bract iee act and so longer prevails, Itinnis v. Friend. 36C 111.380,
a#t*ri#i9rsa
Znfri<^'t.Pt^
■..m t^-rt.
PlaintliT doe* not contend that there ie aay «»Ti(iMi«« In
th« record from wViieii tiie jury could reaaonnbly find n«^lig«nc«
ai^alast fillia& G. Panser, but aasarte -that since plaintiff *t
deelaration &lleg«£ agency sni d«f<pndants 2 iled only a plea of tli«
gmneral 1p9u«, this plea <iid not put in lssu«i the ownerthip, opera-
tion or po«s«H8ion ot th«> %utoraobile, wnloh stands adn^ltted, and
that vhere the ownerahlp, operation and poasession oi' the autoue*
hll« ar« admlttad by the pleadings, no eridimee is necessary in
order to establish the joint ilaoiiity of defendants. Plaintiff,
relying on the rule anneunoed in M^j^ulta y. hoGjt^rlfii^^, 137 111, a?0,
afterward aa»ertftd in Chioa^o Union Tract ijon COa_y, Jerka^ 227 lil,
95, and followed in a long line of cases in this and the &ip]r«ai«
court, asserts tliat joint liability is udmitted by tiie ol adings,
Xhe ruld iB not as 1»road as plaintiff contends. V^hile, geiierally,
in tiie a^set^ee of a special plea, ownership, operation or poBsessisa
of an instrosentality by wuiek an iaiury was inflicted, Ib adsitted,
on the contrary, where the declaration allefi;e8 a joint act or acts
of negligence on the part of two or more defenaarits, such loiat
aegliKejfice is not ad^t^itted eyen in the abeenee of a special plea.
In such eases the burden is en plaintiff to establish the joint
negliKenee as alleged in hie declaration, 'fhie class of cabas does
not fall within the rule announced in the Jerlca and similar oases,
but constitutes an exception to the general rule there ateted.
Yeas el ▼. Alexander. 58 Hi, 254, sustains this Tiew, i>laintiff
owner there sued several defendant owners of tresoassing oattle,
alleging in his d<«elaratieu that the cattle belout^in^ to the se-ver«l
owners ii^parted an icfeetleus disease to plaintiff 'e cattle. It
was aeld that the burden was upon the plaintiff alleging joint neg-
ligence to prove it, although defendants had filed only the general
issue, and that a defendant impleaded in such case could net plead
la a1»ateffieni, and for that reason was permitted to raise the ques-
3i».
ts>tim -
•A-iJ-
•»a<:ttJOr;-
i;>ss ,?T*e 8« ft t« W2
•»9rsei%Ki mu t'l
l»»«X??,
■t f < ••
iBoa
ttit*>rf> !
a«»b«i.iu
err*
■Itr'f^e*
f.-^we
In
"*■■ oS' '-».!-■./
tl»« •f hit joint liat»lllty «n<s«r th« pl«» tf not ftuilty. Aloe,
*n Unttod BreworioQ v. Bats, m 111, A^^. »9, wh«r« oeYeral d««
for.flwnto fll*<l a uloa of aot guilty to s. oharge ©i* Joint nogll-
gttnois. It waa huXA that ro«»ri» proof of ©wr«r«hlp of tiio i««t»UE«it-
ality by which tha injury waa Infliotad, *ra» not ouffi cleat to «»-
tal;llsh liability unier a. plea of eat guilty,
1» McDarmptt ▼, A.K.C. Oil Bumar iSaqeo Coyg.^ 2ft6 Ul.Apik.
115, plaintiff oued two eorrtoratieiia, allc-gifig liability by reaaaa
of iaiat nagli^exiec in allowing oil to leak fren a taok aad aaro-
loaa ioctalla.tiOB of t^a plant, together with joint traapaaa ^i. 9l
ayaij. iho court said:
"i'lalntilf *a (clalrr. la foandad upon and the deel&ratloii
ehargeo tiaat the two defendanto coayBitted a tort, tne 2al*»B cor-
poration %9 priiieifal axx^ th« Automatic Corporation a* a^^nt, or
that %ht two oornorations 4i<ot«td in concert aa Joint foaeora. It
hail alwaye haas tha l«w that ^hPT9 twa or eiore daf «r<dai:.t8 are
jfointly charged with the eoLaiiissiot.. of a tyrt t>ia joint aotion
of the dofeedante la nogatlTOd by & i^lea of not iiuiity. (iftftUl
J, Aqpiyar.ior. 58 111, ?'S4; Petero ^t. Howard. 2w^6 iii, App. 610;
fcgilala V. jfeoauit^^. 236 111. App. «9S. S98i BladP ▼. ^tte of t\.
DCArhQTii ^ilfi^. Qor^f. 245 111. App. 4S4, 439VP
It waa held taat in the absenod of proof of joint acts of n«glig«»ad,
the ju«!gm»nt waa erroBeoua an to ono of dofendaknto, i^d en tha ott-
thori^ of LlTtUc ▼. Chicago & Srie H. Co.. 299 111. 213, the judg-
acst waa rev sorted and the cause roixandad a* to both.
In Mai^talt v. Ma^uiy^;. 23d 111. App. 296, plain tilf sued
husband and wife, alleging Joint negligenoe in the operation oi ma
automotlie own«d by the wife, ind defendants 2'iled a plea ol' not
Sullty without epeelaX pleas. 7he proof auowad tne operation of
the autorao^ile by tiie wife alone. It was hsXd tuat a juigaeat
•gainet the husband was erroneous. The court said:
"It Is the genc^ral rule ti:xat u husband is not liable for
the torts of his wifa except when the wife acts aa the a^^ent pr
sarv4r>t. of tue .aaaliaiid, taJid ttisn lu^dor tue toctrine of respondeat
superior. Mo^affiar ▼. Cohn. 115 111. App* 31.
• * *
*i'laietiff alleged joint ownership and operation, and
nrguee that the general issue adiidts hoVu ,iiieg**tions under the
rule announced In Ca^ioi^o Union Traction Co. ▼. Jerka. 227 111.95,
iwii
^ ^ «««•
in'"*.,,.
anl many other similar oiiaeB. * *
"•it is laid dowri in all works on plendiag that If two or
Bore persons ar«f »us<J for ^>. tort co-imltt^d ty one only, a uls-
jsindsr cannot ^« pleadsi; the roper plea lor thoes not ^^liilty !•
the general issue.' Yeaael v. Alexanae.r. 53 111, 255; i!icpnoji;y
LJKfat A -Powsr Co. V. ailler. 5?03 111. f)18.
'^fe are rel't-rrel lo no cases chaxiglng this rule. It
voulot be unreasonable to stretoh the rule in the Jerk hi ease to
include the criarge oi joint liability."
In tymn y. Stem. 274 Hi. ^p, 667, it appeared tiiat de-
fendant wife alone nei<,lig-«ntly drove an autoaobils owned by ths
hiiishand, who was made a defen(1ant hy the in,1ured plaintiff. Plain-
tiff in his declaration nlleg-ed joint negligence, Defendants
pleaded the general issue ^itnout a speolal plea hy either ef then.
nie evidence dlselosed that defendant hushand was not present at
the tirae of the accid«it, smd this court, following M.cH?U.e v. ;..o-
^ulgg, reversed the joint jud dcent figalnat th«a and reainded the
eauae. We there said:
"This court has held t tat in a personal injury ease where
the declaration charges that defendants Jointly oo.iualtted ^^
wrongful act, the plea ©f not guilty io^s not adiuit the joint
©rners.tip s*nd operation of the instruji;sutaiity involved, Acdals
V. atcauigg. 236 111. App. 29'j; Blade ▼. aite of Ft. Dearborn Eldg.
Corp. . 245 ill. App. 404; McDer^oott v. A..b.C. Jil /Jurii^r ^»ile,t
Corp. . etc, 266 ill. Apa, 115.
■» * *
*In the instant case we hold tnst the plea of net guilty
negatived tae joint tort charged afeaiiist the def ei.,3ai.te. *•
In later cases ta.ie uourt una the ^upre^ue court Kodillsd
the rules aanouBosd as to other points in aahta^ v- Ao^ui^ft.
(Barran v. Adanich, 251 111. App, 4<ii; Uicala v. i.en.on. S5a 111,
App, 2b:i, al'fixmed hy the ciupreaae court In 543 111. 6U2) but tne
rule ann«unced In the former oases th^t wh<?re the deelaratien al*
leges acts of joint negligence by several defendants, and defend-
ants enter a pita oi not t/ailty Ai^.liout epecial pleas, the burdsa
is east upon plaintiff to prove the joint acts of ne(^lit!,ence, as
alleged, h^is net been changed by these later oases which ssea t«
annoxince a rule of .convenience only to the effect that in aa aetlsa
against a servant for hie neglieenco, plaintiff «ay also jola his
■aster, whs mmj bs liable upon the theory ef respondeat suaerier.
H
ti^tLt«X« iett'liu
*~.a
Xi
b«i
■'iTi*^"
ai£^
IV i^y^ti
ft-clr .
Tne deelaration here allege* joint acts of negligence against both
defendauits, TUe theory of reapendQa'^ ggperioy is i.ot n^t forth
In any count of the declaration. So far aa Wiiii-ija c. Panzer is
concerned, there is no proof of negligence at all, an-l the judg-
ment aigainet him must be reversed for that reason. There is no
error as to defendant Prederiolc C. Panzer, and under the rule
announced in Hinnip y, grlend. 360 111. 328, the jud^nent aa to
him Trill he affirmed,
JU.DCa£[gJiiT AffyiRMISD A3 TO J'RSnaRIGK c, PAjszaa.
J^MMINT RB^/BRSISD A3 TO WILLI AK. C. PMZ3R,
MoSurely, P. J, , concurs,
O'Connor, J,, speci^xlly eoncurring:
The evidence shows that Williaun G. Puraer, tlie father,
owned the automol)ile: that hia 13 year old son, Frederick, the
ether defendant, took the autoiaohile and went to a party for his
own pleaaure and net on any errand for his father.
A father who per&'^ita his son to use an automobile for the
aon*8 own pleasure is not liable for the torts of his son which
oeeur while the son is so using the automobile, ighite v, Seit^ .
342 111, 266, All the eyidenee shows that the father, under the
law, waa in no way to blame for the unfortunate accident, Jielaoi^
Ty Stuta Ghioago Factory Branch,. 541 111, 387,
,fe«?RTi'J:'l« 9\i III IP atiK
N>ff«r#
38660
ORA. L. PJSRRy,
Appellee,
W. U. DARLlKGTOfi et al.»
Serei'da&ts.
WILLIAM D« MEYZRIfiO,
Sherifl* of Cook County,
Appellant*
APPEAL FROM CIRCUIT COURT
OF COOK COUfiTY.
28 5I.A. 582
MR. JUSTICE MATCHETT BBLIVERSD THE OPIKIOIJ OF THE COURT,
Oa May 14 » 1931, an execution issued to Steyering, then
Sheriff of Cook county, upon a judgment entered in favor of W. H,
Darlington and agadnst K, I, Perry, husband of plaintiff. July
21, 1931, Ueyering "by hie deputy levied under the writ upon goods
and chattels in the apartment occupied \>y the judgment debtor and
plaintiff, his wlfe« A custedism was put in charge and remained
In possession of the goods and chattels until July 30, 1931, when
upon order of the judgment creditor, the levy was released. This
litigation is the sequel to that levy*
September 11, 19 31, plaintiff filed this suit, making defend-
ants thereto Meyering, W, H. Darlington, judgment creditor, his wife
Mrs, W, H, Darlington, and luatin S. Tomey and Frederick C. Jonas,
who had acted as attorneys in the matter. She filed a declaration in
five counts, in each of which she charged that these defendants vi e^
>rmis broice into and entered her premises, assaulted her, etc. All
the defenriAnts except Meyering entered pleas of not guilty. Meyering,
sheriff, entered a plea of not guilty as to the first, second and
third counts and a deiaurrer to the fourth and fifth. The demurrer
was overruled, whereupon he entered a plea of not guilty as to thess
counts also and special pleas of justification to the effect that hs
was sheriff; that he had received the execution on May 14th agamst
fi. I. Perfy, who lived with his wil'e, plaintiff, in an apartment.
MMi
^
fmoo Tiuoiiio mm. M£^*iA
S8e.A.lS8S
►«y
.W
.THUOO SHT UO iSOlll*?0 SHT (TSHSVIOSfl: TTSHD'fAM HOI'.
a»iLt ^:^aliQX9Ji. oi Mw:; -josxe a& ,X£91 , *•! y-^ "^ *^^-
,ii .W "lo icvs't rix bQteiaii .. „3^jx>wt, « ao^« ,^*aMOO ^c^ tl-xsdia
afcoo^ uoqi- ^i-xw 9di rtabtiu fceival ^ju;.-2li iixl x^ igaX'XBX'^^ ,X^v?I ,X2
fittB ioid9b in&sa^hkiX, sxii x;cf baJfcqjuooo in^ieiis^B HSiS nl aX' ' na
airx ,o9auix(fi a*. ,-X(..ji: ■ i-iliit *^' ' ■ ■^<I*'
,y;r«X cTi. ^■jjup«a i> :--:.ti:X
.aaaol. .0 iLola»fc«l'4 Jbaa x«"*o^ ^"^ ni^«M* bm »no^gniXx»€l ♦« .W ,aiM
ai AoiiAi^loob B bal- . i axsaxioite «jb b^J^oa ft«ii Oilw
It. IX a#n«,br»ldft f-adxl^T ^^i£* ■ M«os «t11
XXA .o^s ,Tftri bdiiu^neB .aaalavoi oTd alaiTJi
jniTaicaM .^;fXli,'i^ *on to a«»Xg Jb9T»;Jn*» artxislCfM *f
bnm hactt9a .isili 9di oi ae^ x9^^»^
if»xtm»b tR .iU'tn ba& dtii.
•••jU 9i MM xillirg ioa to »9lq a bBia:
.raaijBS^- ili<M '{aM a« AoJ;l»)oaJKa
.jgXfl « bs-xa^tia /Itiusiia
loqu^aciiw ,ftaXir»i»TO a«w
Xq X^iooqa i»n« oaI« a^auoo
1 bad »ii iasiS ftliisria a*w
and that by bis deputy duly aopolnted, he entered peaceably and
leTied on goods not exempt and in good laith, acting by his
deputy, etc*
Plaintiff filed replloations to these pleas to the effect
that Meyering "of his own wrong and with force and aras and without
cause, oouiznltted the several trespaeses", etc. ^e cause was tried
by a jury. Motions for an instructed verdict to all the defendants
except keyering were granted* As to Meyering, the cause was sub-
mitted to a Jury, which returned a Terdiot of guilty with damages of
#12,000, JPlaintiff reaiitted #8000 and the court, overruling the
motion of defendant for a new trial and in arrest, entered judgment
for |i4000, from whi^ defendant has appealed.
It is urged taat the verdict and the judt^Fient are against
the manifest weight of the evidence; that the court erred in deny-
ing a motion of defendant Meyering made at the close of all the evi-
dence for an Instructed verdict on the grovufid of variaiice, in deny-
ing the motion of defendant to strike out certain incompetent evi-
dence, and In giving erroneous instructions to the jury at the re-
quest of plaintiff; .that the judgment was so exceseive as to in-
dicate passion and prejudice on the part of the jury, and that a
nam trial should have been granted for that reason.
The contention that the verdict aaid the judgment are
against the manifest weight of the evidence does not appear to bo
entirely without merit, since the evidence submitted in beiielf of
plaintiff is in some respects inconsistent and inherently Im-
probable. Q.UOCJC ling V. U. S. . 140 U, S, 417; C. &. A. R. R. Co.
T. Yremoieter. 112 111. 346; highley v. American Excnange i>at'l
Bank, 86 111. App. 48; 0. f. & St. L, hy. Oo. v. DeFreitas. 109
111. App, 104; Brown v. Chicago Pity Hy. Co.. 155 111. App. 434.
There are also many cases which would sustain a reversal, notwith-
standing the remittitur, because the verdict was so excessive as
«
eonefs
A ^crii hru
to 'll,'»'^«d ai b'>Sfi
-ul ■\cX:fa*tsc
,0!3 .^ .g .j\ A .J ;Vi' ... , , .
__; ^___ _ _j-Ji_?BQ -T? '-Ji , Y YaX-itai- ;
.i.^.* .qqi. .XJ!I f""'"!! . .60 .v;^t T:^iO. Q&sa^.
3 7 A .Ji ^ ^ ^
. . 'on
.SldBCfOICf
tA .III d8 ,2Cn5a
; ;.0X ,crciA ,
oJ'^i;-: bLuoif rioliiw seejao -^ri^Ki o«Xa bib *i»dT
flift satnzDscf ,ic;jd'J:i*i0iW arid" snj'JS*''"***
to ahow passion and pr«Ju?Hce on the part of the Jury, Loewnthal
T. Streng. 90 111. 74; Wahash R. R, Co. ▼. Billiiig|B. 212 111. 37;
Bldem ▼. C. R. I. & P. R. R. Co.. 144 111. App. 320; LoftuB v^
111. Mldqaod Goal Co.. 181 111. App, 197,
Defendant , however, further contends ean estly that the
court erred In adciitting tn evidence, over the objection of de-
fendant, the execution under which the deputy sheriff acted, and
that the instruction in favor of defendant, requested at the close
of all the evidence, should have heen ^iven for the reason that
there was a fatal variance, in that nowhere in the declaration was
it alleged that defendant lieyering was the sheriff of Ci-ok county,
nor that any of the alleged treapasaee were coininitted by him as
sheriff, nor that he acted in the matter of the levy through a
deputy shf'riff , or that the supposed trespasses were cojomitted
under color of any writ or other process. In the title of the d«o«
laration and in the several counts, defendant Meyering is named as
•William D. Meyering, sheriff of Cook Co-inty," but defendant con-
tends (and rightly, we Uiink) that this title is merely descriptivs
and constitutes a« material part of the declaration. West Chicago
Park Coituaissionerg T. Schjllinger. 117 111. App, 525; Itoll v.
Sanitary District. 131 111. App. 155, and numerous other oases whioih
so hold as to other public officials, are cited. We do not doubt
that the same rule would be applicable in tiie case of a sheriff.
Defendant argues that the ultimate faet, which the evidene*
tends to prove, is that Meyering as eneriff of Cook county, acting
by his deputy, conimitted th#8e various trespasses, but that this
ultimate fact is not alleged anywhere ii the declaration. Defend-
ant cites a number of cases which state the general rule that a
declaration Huet aver and the evidenc* establish facts aut/iorising
& recovery, Hellenbeek v. Witiiiebago County. 9 5 111. 148; BucJ^ley
▼ , Kandel BroS| . 33^ 111, 368. These cases sustain that rule and
ji
jre .ixi -x:^ .^a^;i>^f4 ^^>?>P,„.f.a ^,^,.^r^fe^ ;i^f .cii ae .a«jni#a .▼
«V9X .qq,A .ill XSI , , eO XjigQ t j-.Ml
^di J-jiJiii '^X* a© VI 15 9 sihOBiaoQ tmiii'xu'X .iiKvawo^i , *J3aJ^ii»lay.
fX^auoa aio -*i» «iS* 5*5W ^aut iav,ii' & Jiiui&aotsa ^axu fesa^^Xia *1
-i&©^ ©X.^14 9Xfcr . i^bno
ttM h&sie0 si ij/xia9\;sM. $ sa&iiaa't9k ,«*a«fl« X«T:*\r»e «|4^ roJ:J^jOTtfiX
.T ii.&}ti ; , qA ,XXI ?XX .■xa.-^uiXXirtigS ,v aieiioiaa.liutseO ai^^X
»lriw ft«SAe idrLro Buox^Biua bm .SW ♦*^C;- • i-l .^oi^jToM.
iifofc *oa Oi . . -o oiXcfif^ iE:«ji*o yi'- »« liXorf o«
»oa«i»XT© OiU noli. 'i$»mlilu •jW cf^/i^r e«ii»ny8 i mbmi'XiiQ.
^alsli - rlBlXd«*«« •oaohlv* «Kitf hnm tov« .tajwa iaM9i.tJ»t«X&»fe
..« dXirt ;t«iW £.jiJs;Jfsi„'e a»e.'. .odC .XXI,^£e ,^aj23£JebagiL-tl
al«o hold that a declaration failing to allege a fact, vritliout the
txietenoe of which plaintiff was net entitled to recover, does not
■tate a cause of aotion. Tho undisputed eridence shows that Meyer-
ing did not participate personally in the alleged trespasses on
Vhioh the suit is baeed« The declaration alleges such personal
participation "by hlB.
Defendant suggests that the execution was admitted in
•Tidence and the motion for an instructed verdict for defendant
"because of variance was detiied upon the authority of 3kalu v. .Lehon.
343 111. 602, That case is, however, clearly distinguishable in
that the declaration there averred Joint negligence oi a master and
hla servants the servant upon the theory that he was neglig«it; the
saaeter upon the theory that he was liahle for the negligence of nis
servant upon the principle of respondeat superio^i;. here, the dec-
laration alleges trespasses vi et aritii,^ in every count. The sneriff
is sued personally* The deputy through whom he acted is not jpade a
party to the suit* The aut>aoritie« seoBi to nold that under such
oircuniBtances it is not necessary that plaintiff invoice the doctrine
•^ respondeat supariQa' in order to charge the sheriff. Under the law
he is nresent whenever and wherever he acts by his duly authorized
deputy in an off Icisd capacity. If the deputy while so acting cob-
mlts a trespass, the sheriff is personally liable as if he were
present. The allegation of the declaration of a trespass by the
Sheriff i^ substantiated by proof showing that he trespassed by his
dsputy acting in an official capacity. TJaere was, tiierefore, no
variance. 20 Encyc. PI. & Pr. 14S; 57 U. J. 9 51, sec. 643. Indeed,
some of the cases seem to hold that in such case the sheriff, and not
the deputy, should be sued. Campbell v, Phelps. 18 uass, 61. At
any rate, by the better reasoning and also by the weight of authority.
It was not necessary at coBuuon law in sucn case to cliarge that the
sheriff acted ix. an official capacity. Young v. lon^. 124 Wash. 460;
no B»B9Mqa»xi b&-g9ila tiii i<i -^liAJtoK-s^cj; sukjiidiixiii'isq ^en MJb ]|nl
IjBaoeT:sq doas • loi^arMtl^^lf ©Iff ^Mouetf ei jiiot -^xl* iioirtw
: to elqtoaitq sAS tm^v iitusm^a
iteX ed* "XdliflU .I'tiTc^riB srfi ^jin. i»hi& tit X' ?&ai^tioae^a to
9i«w »i' 'ti iX \i:iX«[\osi»«r ai rtiTfcjrfe »rt* ««s«qaei« j . J i.:r
»ii* X<J ««4Bqe' iiiX»»l> art? 'lo «ol;r«:il«X£ji »rfl' ,J«9a«T?
eixi ^d bsaaaqaaT.^ ail J-oii* ijnivrorfa Teo-K? t.^ fii*^^*!*^!*?*^^^* ..i fti'isjla
:^di iiuiJ o.'ijto 0-^ ^a«o /ojj* "X WobX ao.uioo J« Tc:siiya«fr«a^oa a«w *!
Jaokaon t. Harrleg. 236 Pao, '534; Curtig v. gay. 37 Bart. (i»,Y,)
64; Moorea v» Winter. 67 Ark, 189.
Th«i Instant suit was begun prior to the date upon which the
CSirLI Practice aot 'bftcatiiM effective. Whether the allegations of
this declaration would be sufficient under the provioions of that
aet it is not necessary to coneider or decide.
For reasons which we have already Indicated, it was iitport-
»at that the jury should be acourateljr instructed aa to the law ap-
plicable, and defendant argues serious errors in this respect*
Complaint is made of instruction Mo, 1 fe,iven by the court, which is
as follows:
"The court instructs you t^iat an officer, altaoug/i armed
with a writ of execution, acts at his peril and when he levies
upon the property of a person other Uian tae defendant in the writ
and asDunee custody smd poeseesion of such person's property, he
is liable and the writ will be no defense in a suit for treapass.
If you find froii tiie evidence that the plaintiff has estab-
lished, by a preponderance of the evidexice, that tiie defendiiiit,
William D. Meyering, sheriff, by his deputy, entered into her premi-
ses forcibly and against her will, then he ia guilty of trespass und
it is then your duty to find hiia guilty and assess plaintiff
damages in such sum as you find from the evidence she has sustained."
It is objected that the first paratgraph of this instruction
ie entirely abstract and has nothing to do with the facts involved
in tlie caa-^i at tar. This objectioxi ia good. Moreover, the instruc-
tion assumes that the property levied on belonged to plaintiff when
there was evidence to the contrary.
It is not true (as the instruction says) that the writ would
lie no defense to a suit for trespass where the officer levies it
upon the property of a person other than the defendant in the writ.
If the officer acted in good faith in such case, plaintiff would be
limited to actual dat^ages; if, in f^ujt, he had no writ the question
of hie good faith would be iniffiaterial and plaintiff might recovf-r
Bet only aotual but punitive damages, Becker v. Dupree. 75 111. 167.
The second paragraph of the instruction, by whicu the Jury
was told that it ml^t "assess plaintiff damages in suoh sua as you
i
't« artoitASSllJs ©fid' asii^tsxfW ,»Ti;l©»'l't» »fii*i«»el ;Jo» ©ol*».«t«i IlvlQ
-qa mml »Ai r^-aJoirscJ'aai iflss^se^woa* f»^ blumifs x^^i »*U if«xf;f ;tns
si daJLrtw , fitjeo ^di ^ef fl»vig X .oE a0i*oi5fxi>«£u 'to slweK. ai ^fttelisaciO
:a»foXIol 9M
"••■ •:— ' -■- ■*■■ -,-v , noi:^j;i&'^"-- '•• ;''J:i^ £ il^lw
baa
: «i
i-: v.y , , .• ■ :i:iw
i)i -•'3t;J 'to ^i£l'& a»8
■.- : • • il
6»vX(»r»ii ad'Oi't '.uiJ jrf.. -i/jxi feoft *lM>-«^««fje XX»"a:i.ia^' a I
-&irt;^pai aiii ,'i0VO»ioM » ,5© aiii'i" .HK-a if^ 5>»J3» aitJ" fli
M»iiw 'ftlitxlBlQ oS bda^oX«cf ao &9I-V9X vs^Q^^q »^* ^*^^ aaauJMSJB woi*
erf ftXuo'/ 'ru^fili;!; . 'oo'a Ski b'SttyM a«oi'l'tO «d* tl
.i.ji^^i;- . •'^i.;t ;Jl-sw on b -i ^ft , i^o. ; .^si^a^naA Xdw;to« oJ tftcfimiX
- •/n'j:-''i tifslia 'rtli'rtiAlci faoes X«lt<»;^BRifKl ««f hlisov siSL/t itoo'g aid lo
t,. ,.* »...^..»-.< .>...,..-,-.ii a««B«4i* #d6jiiw -il :>«ii* fcio* taw
iii
0
.e-
1 .l"«5 *
■x^J 'to
find from the eyldftnoe she ha« euatained," wa« alao erroneoua.
Plaintiff was not entitled to recover damages unless the Jury
from a preponderance of the evidence found that defendant wae
guilty; that she had sustained damages; that the damiiges were
alleged in the declaration and were the iitunediate or proximate
result of the guilty acts of defendant. If damages had been sus-
tained but were not alleged or were not the immediate result of
the wrong committed, then plaintiff was not entitled to recover
therefor. We hold the instruetion was misleading, inaccurate and
oonfusing, was prejudicially erroneous and regardleue of other al-
leged errors would compel a reversal of the Judgment,
Complaint is also aade of instruction ^o. 4, which is as
follows:
"Tho court instructs you that a trespasser is one who in-
trudes upon the person or property of another without the consent
or permission of that person and without authority of law, A
treapaaeer is liable for the natural and proximate consequences of
his conduct. If, in conuaittinf a trespass, one inllicts injury
upon another either physical or> mental he is liable for such in-
Jury, If a trespasser uaes force or acts in a r'^cklees imd wanton
manlier, and in so doing injures another, then he is liable for
punitive damages. Punitive dbuaa^^ea are such damages as, in the
opinion ox the Jury exaaiining into tne facts of a particular ease,
will act as a proper punishment and exatuple to prevent further
trespasses of like character*"
This instruction in effect tells the Jury that if there is a tres-
pass by force, the trespasser may be subjected to punitive damages,
fhls Is not an accurate statesent of the law. It is only when the
trespass is committed wilfully, maliciously or wantonly that puni-
tive daoxages may be saiowed. In 17 ti. J. 9 74, tne rule as to puni-
tive damages is stated as follows;
"In order that there may be a recover of exenqtlary damages,
there must be present in the circumstances soae eleiaent of malice,
fraud, or gross negligence, otnerwise tae measure of damages is such
an SBOUBt as will constitute a just .-md reasonnble coiupensjation for
the loss sustained, and nothing more. In other words, the wrongs to
which exemplary damages are apolicable are those wnich besides vio-
lating a rignt, and inflicting actual daiuages, import insult, fraud,
or oppression, and are not merely injuriec, but injuries inflicted
in a spirit of wanton disregard of the rights of others, *
14 TO-,- LUiUa^lQ. smsii ^ixtiiimaoti gaovw till
ban «;^j3«i/ Daaai: ,jjaxi>«»X«it!»i «»^ a©i. .'iol»ic»|l#
lawoXXol
"-ax
'f .+
0^ ax ,a£ »'
i»rii tnuq
'Bstti fi al ■.^•I'^K
•if J osxlw \la(i K. :
• lauq oJ •« »Xj-':
, '^: ^ 'air 'ro
1
• .si^ilio to aji
0 a.s
7JBX
10
ttM-s^mtuib Si&ii
To the same pffect ore QutXer v, SmAtii. 57 111, 252; Hhodes«.Burl'oyJt
Co. Vt Gartner. 133 111, App. 164» The inatruction is also erroneous
beeauee It told the Jury in tiie hypothetical case taat the trespasetr
is liable Tor punitive damages* Punitive deU'iugeB are net allowed
a« a matter of rl^-ht, The question of whether they should Ise al-
lowed in a proper case tlv/ays rests ic the discretion ol the Jury,
The instruction infcmied the Jury that under the cireumetances in-
dicated defendant would be liable ae a uiatter of law for euoh
punitive damages.
1» W. St. L. & P. Ry. Co. V. Hector. 104 111, 296, our Su-
preiue court considered a eiiidlar instruction, wnicn told the Jury
that plaintiff under given circujcastances was "entitled" to such ad-
ditional damages as the Jury might in its Judgment allow by way of
punishment, The court said:
■The vice of thia instruction coneis^ts chiefly in the fact
that it states the rule as to vindictive or punitivn damages broader
than the law will warr.int, Wlaere an injury is wantonly and wilfully
inflicted, the jury aay, in addition to aotual dax^ges sustained,
visit upon the wrongdoer vindictive or punitive damages by way of
punishment for such wilful injury, but it is not und'=;rstood that the
injured party is 'entitl«d* to such damages as a matter of right,
and an instruction that tells the Jury, as a matter of law, the in-
jured oarty is 'entitled' to such damages, goes too far, and is for
that reasen vioious. "
The instruction is clearly erroneous, for although defendant was a
trespasser, and even though he were a wilful trespasser, plaintiff
would not be entitled to punitive damages as a matter of law, but
only in the discretion of the Jury which might, or might not, award
punitive damages. This rule is important in this case because of
the fact that the uncontradicted evidence shows that defendant iteyer-
Ing was not the actual wrongdoer, and that if he was liable at all,
it was only by reason of the action of another.
Complaint is also iriade of instruction lio. 8, which is as
follows:
"The court instructs you tuat it is not necessary, in order
t« constitute wilful or watiton couduet in this case, that the plain-
V
uao»no
-X« 9<S bluods.
xteca I,
^1-
.^■■
ic
-^«v«v .tat!hn»'teb terli at;oxLe aonaba i!»*i*«oo«tf ail* ^fiiiW J'oa'i »rft
^-x**!?:* • -.lato saw *Jt
:awoXXot
7 aiii *£ii;{ .sajsci aixiJ xii
10 It('tXi«r a;^
o:^
tiff prove that defendant, Williaai D. Meyerlng, eh riff, acted by
ill will toward the plaintiff, bat it is aulVicient for the plain-
tlif to Pl-vOW that deferdant, Williara D. i^eyering, slieriff , acting
through his deputy, acted with reoiclass indifference to the cir-
cumstances or without any care for the life, person or property
of the plaintiff,"
It is urged that this instruction asQumes by implication the guilt
of defendant and therefore constitutes an InTaeion of the proTine*
of tho jury, and we think the instruction is Justly subject to
that criticism. It is, of course, error in any instruction to
assume as true any fact which is in dispute. Hawk y, Ridgway^ 33
111. 473; U, & M, W. &y. P^i v, Moranda. 108 111. 576; I, 0. PI. a.
Co. ▼. Zaag. 10 111, App. 594; griediaan v. Shuflitowski. 132 111.
App. 5.
-Jor the errors In taeae iaatruotlona the jude=,in3nt ia re-
versed and the cause r^isianded for another trial,
ticSurely, P. J., concurs.
O'Connor, J,, specially concurring: I agree with the result but
not with all that is said.
Instruction l^o. 4 would in no
way help the jury, but only
confuse.
^ ' , lli.-^' Ill
■ oJ^ ikiiii ,'4o
.a .H ,;;) ,: • , . »J^l^i£??^ f * xS »■ ,.W. J^^*' ••^•'^
iii see . o'ti» ».
.^■%Uoih)x
liB i-fiiw ton
on iioitojj'x.i^aAl
38709
PBOPLE Off THK STATE Oi? ILLI2.0ia ex rel.
OSCAR iiKLSOiJ, Auditor of PuTalie Aecount» ^.—
ol* the State ol' Illinois, C-"^ \\
▼»•
LOOAW S(iUARE5 .'JTATS AHD iiAVIiJaS BAiSH,
a Corporation,
LAi'AYiSTTE COUNCIL BO. 361, KNiaiiTS OF
COLUMBUS (Intftnr*»ntng Pfttitioner)
Appellant,
▼»i
VILLlAi. L, O'COKKFJLL, Receiver of Logan
Square State aiid Savings Bank,
( Respondent )
Appellee.
APP-gAI FR(»:
GiRCI.Ii COURT
0? COOK GOUHTY.
loA© D O ^
m^, JUSTIOB MATCHSTT KBLIVSKgB THB 0]?IKION ©F TIB COURT.
This appeal is by i^eti tioner, Lafayette Council i<o. 361,
iLnights of Columbua, from ai'i order wiiicu iienied. ita prayer I'or the
a
allowance of the eium of |27&2,e3 as/preferred claim against the
aeeets of the Logan Square State & SaTings Bank, in vhioh C/*Conueli
is receiver. The matter was heard upon exceptions to the report
of a master. The exceptions were overruled and an order entered
denying^the prpferenee hut rill owing the amount due petitioner at
the cloeing ©f the hanJt as a general claim.
The faets can hardly te said to he in dispute. The bank
wae elosed hy the auditor of rjubllc accounts June 17, 1932, and a
receiver appointed, of whom o'Cennell is ouoceseor. The petitioa
was filed December 16, 1933. It averred a credit in its favor at
the closing of the baiik to the aciount claiaied, and it ie eamestly
contended by petitioner that for the reasons hereinafter stated
this credit at the bank was iiupressed with a trust in its fivor,
and that the olaim should therefore loe preferred to tnose of other
creditors. The claim for a preference is based primjirily upon the
theory that tne fund in the bank was irapressed with a trust because
««rti
(
I < a
,«v
(
.r.irM- , ., : '-Lisa TT^LOTA^ 2iOITi-l. .
^i:fiu/ooo* olirfi ^^ %<f b»s0l9 saw
of an agreamwit made at tlie time th« account of petitioner waa
opened at the "bank. The facts in this respect appear to "be that
on or about July 27, 19 31, Peter 3, Riehlowaki, who was then
assistant cashier of the bank, which has since Gio£.ed, met with
the trustees and officers of the Lafayette Council in its offices.
Richlowaki was also the treasurer oi' the coiuieil. The eyidenoe
tends to show that the question of opening u > an account in the
bank was at that time disoussed, and it was decided to ooen eueh
aoeount and instructions were given to him that all the laoney be-
longing to the couTicil should be deposited in defendant bank and
the checks cleared through it, but that whenever the amount on de»»
posit exceeded $500, the excess should be transferred to the First
Rational Bank of Chicago; that Richlowski agreed to do this an<1
said that he would follow the instructions. No other oflicsr of
the bank apparently had knowledge of these instructions or the
arrangement made between the officials of the council and Hichlov-
eki, A notice of a resolution adopted that day (July 27, 1931)
was sent to defendant bank and is in evidence. It is to the effect
that at a aeeting of the trustees of the couccil on July 87th a
resolution was adopted authorizing grand knight Jacob A, -.ueller
and treasurer Peter 3. Richlowski, whose signatures appeared on the
document, to draw, sign, endorse and guarantee orders and ciieoks
on the Logan Square State & Savings Bank, or any other bank, com-
pany, person or persons, etc., "with the provision that checks
drawn ©n this account will be payable only to the i'irst liiational
Bank of Chicago,*
The account was opened, and all checks thereon were signe4
"Lafayette Council Uo. 361, K, of C, , Peter 3. Richlowski, Treasurer.*
The first deposit appears to have been made July 28, 1931, in the
amount of ^1290,71, The agreement in regard to the transfer of
amounts in the account exceeding ^500 to the i'irst JNational BarJc
7i . ' i.e. bf.w>- ao
• xi- ■'i^ .* lie woitto if[
does not appear to have "been complic'l with. Two days l>efor« th«
bank closod, JacoT& itueller discovered that there was on deposit
1b the bank |5155, 23, He went to Riohlo-^ski, who was acting as
oashier of the 'banJi: ;^'< told him to move the money to the First
fiational Bank of Chicago, The hank then transralttad a check for
#1000 to the yirst National Bank, and at that time Richlowskl
stated he had seait another check through for |H500 and promised
he would send anoth<»r check for the same amount, Whil? the last
mentioned check was in the orocees of clearinA, the hank closed
and a receiver was appointed.
On the morning of June 17, 19 32, before the hank closed,
Mueller learned that his ieraand for the transmission of the
money to the ?irst National Bank had not been complied with, ^nd
that there res?ainea on deposit $275S.93. Thereupon, acting as
grand knight of the council, he made out a cheek payable to cur-
rency for the whole aaiount on deoosit and demanded payment. The
teller refused payu^ent and called in the president oi' the bank
who directed the teller to give Mueller either the cash or some
securities. The teller then began to figure the interest on
certain seouritlee, and while he was doing eo the state auditor
appear<«d and ordered the teller out of the cage and closed the
bank. The check for $2752,93 has n^rer been paid by the bank afld
is now in possession of its receiver, Muellor, hoT^ever, was
notified by the receiver to conie and get the check.
Several of the trustees of petitioner council testified
to the conversation with Richlowskl whlciX preceded the opening
of the aceount. Their teeti.nony Ib to the effect that they
gave instructions to him that the excess above $500 should bs
transferred to the Wrst National Bank and that |800 should Xe
kept in the defendant bank as a. stationery or cos.pensation
balsj^co, Rlesel, a traetee of the council, testified that
whenever an amount was over #600 after deposit had been made.
lot iotr.j :■ ir.'s^jiti.u nw'-:! af'.i^ xnsd B«fP ,oj>fioi^ 'tO 3CflKli X«£ioi^£%
jUwrf 9d) i B»1X«« &a» *.aej«^:B|^ fc»a*f't»t it^IXtl^
•Kl ft**©!. Ao 9txt r© Juo xeXJ'A^ ori^ h«rt9h'io bsm hf»tsi.»qq0
•^r,' ,i»v»*^ox^ ,t€>lI'»i;M »t»ri»»©i stfi to tt6i»»^s»*€r al *en ei
,H»«i> ^K©* »>i^ ti^vX*©*^ »i1if v:cf tfitl;ioa
aol}.> '.10. i«#» » «6 at^'i*' 3iiifeai(M»-"*«b O'f-iJ' ^^^ 6(H»-J^
"Kr, Richlowaki was sutJpoeed to draw a check tJid have the tioney
transferred down te the I'lrat i>ational Bank cf Chicago." Hiesel
ftlee aaid that the drtly tiiae ixis attention 'r;as called to the
fact that there was more than $500 In del'enciarit b^jj-.k wao atout a
week before the bank closed; that at that time there T«i8 a meet-
ing of the trueteee at vhich RicirJlowaki was present, und in re-
Bponae to ciueetions he inforraed the trustees that whilf« he did
not know the '?xact amount, there was more than |500 in the ac-
count; that they then told him to make a trauisfer of tho luoney
and he eald he would do so the 8hk.p day, and he v/ae a^^ain cautioned
not to keep an afiiount of more than |5(X) in the account of defendant
"bank*
By stipulation of the parlies it appears that at the close
of business on June 17, 1&32, the audit of the bank winder the
eoliutin marked "Resoureee" showed the folloTinti itemt;
"CaBh on hand #2,861.06
Cash items 381.19
Exchange for clearings 1,375,19 *
tliat its credit balances with other tariks were as follows;
"Caiase National JBank of ivew York... 2,189,07
Xhe i'irst National JBank of Chicago 1,157,82
Continental Illii.ois Sank and
Trust L>oxiipany of Gnicago 26,512,43,"
In loerxalf of respondent, Mr. Sehultx testified tnat he had
'been a general man at the bank before it closed and was a bookkeeper
for the receiver, lie identified exJriibits lA, LB, IC and ID as ths
ooHouereial bookkeeper's ledger sheets of the closed bank, showing
the account of petitioner. These records siiow an accomat kept in
the usual way and that the money was taken out through cnecks drawn
as provided for in the writtsn authorization of July 27, 19 31,
These are subs tsuiti ally the facts concerning whioh tners
does not seefli to be any oontroversy. Petitioner argxies that the
testimony conclusively shows that the barik agreed to accept tns
deposits of the council for a specified purpose, namely, to
, , > **«ai«B<!r to
61,
;3wc>
aj-iw ««si-i^i«!iii' ikbii%9f »^l iml&
-J Ui u *. .
LliiilUOt)
rec»lTe, cash and oolleot olaecke d«poalted with It by txxe eouncil
suid nheu the moaay received and collected w»8 in exoesa ol' <>500, to
immediately tranaler the oxoesaato the ^'irat l.ationauL BarJc, and that
the legal efl"ect ol" thia a&reoment was to ixupreas the fund* in the
bank with a trust in i'avor ol' the oounoil, Petitioner oites
Drovers' Ij at ional Bank v^ O'ilare. 119 111. 646; ^^erican '^x. x^ank t.
Mining Co. . 165 111. 103; Peoole v. Lates. 351 111, 439, a/Ad People
Y. Peoples Bank 3c Iruat Coj^.. 353 111. 47y , all oi' which are to the
effect tiiat ^fhen a deposit oi' ai special nature is xuade in a bank
under such oireumstanoes as to make the bank the agent or trustee
of the depositor to earrj/ out a particular purpose with the money,
such fund thereby is constituted a trust fund and so long as it
oan be traced Xiiay be recovered in case tiie agexicy Ib not carried
out according to instructions, Thus in People y, Peoples £aj:ik A
Iru8tjCo_, , 353 ill, 47^;, the court stated in effect tuat where •
payee of a cheek placed it with a local bank for collection and
the bank mailed it directly ^o the drawee bank with directions to
reiuit, and the drawee bank, instead of remitting the money, sent to
the local bank its draft on another bank (where, howeter, it had
sufficient funds) but the drawee bank failed before the local bank
was able to collect payment on the draft, the payee on the cneck was
entitled to a preference over other creditors oi tae closed bank,
upon the theory that the relationship created by the transaetion
was that of agency and the smount of the check should be regarded
as impressed with a trust. 3o in People v. Bates. 351 111. 439,
where it appeared that a bank had collected proceeds of a note in
the SUA of #4725 and ttJie uioney was left in the bank for tne par-
pose, as stated in a receiot, "to be invested in morti^ase leans,*
it was held tnat the relationship created between the bank and
the intervening petitioner was one ol' afcCacy ratner than deotor and
oreditor, and that petitioner was entitled to recover the amount
I
»if^ ill mbiXi/t »tii
J® 'ft*
a 31
iflftrf «*jw.ai
,saol asms Gill <»J S-
a'
,.Cf3STil
b> li ^i ,-3:«y
.-^loll'iua
.'S
t£U.
;^nu'
'X»T00e^i
^(^ia- r.
^10
oi* it aB afeainst the aasete whioh ttie evidence showed laxd been
augmented to tke amount oi' tills trust property,
The undoubted general rule is that tlae deposit of i^oney in
a bank creates the relationship of creditor and dettor between the
depositor and the bank, and the undisputed fu<.^^ts in this redord do
not bring this case %ithin the exception illustrated by the cases
cited in behalf of petitioner, iilchlowski was at the tirae of this
transaction the treasurer of petitioner, and the conference with
reference to sending the funds in excecE of $500 to the i'irst
fiational Bank was betwean aim and the trustees of the ccuncil.
The STideuce does not disclose and would not Justify the inference
of any agreement between the bank and the council to that *:l"l'ect.
The only agreei'ient so far as tiie evidence disclosed was that lu*-
plled by law that the bank would pay cliecks upon the accomit v.-hioii
were duly aatiiorized. That was the only resolution of whicn the
bank was informed up to a few days before It was closed. The proof
shows merely the ©pening of a regular checking deposit account by
the oouneil acting through its officers. The bank did not hare any
right to Bak« withdrawals froaa the bwaak nor transfer the funds ex-
cept as checks were drawn by the duly authorized officers of the
council. The account was handled as all other coicmercial accounts,
and there was no special method provided for in connection with it.
The funds deposited in the account were not kept sepurately from
other funds, and there is notxiing in the evidence which would over-
come the preBua.ption that by opening tJiiE account the relationship
of debtor and creditor was established between the bank and tne
coijAcil. That is the presumption aricing out of the traiisacticn in
the absence of a specific agreenient to the contrary, &its v.
gpreiT an . 360 111, 461. We hold therefore that th#se funds were not
impressed witn a trust by reason of any special contractual rela-
tionship.
|>«8-9i
a/>i3ii
.j&#i;s^xj .;*ajU j&i3«i <ii.i.i.^ ii!&d9tt@d «£W ai£ifi^ X^noi^jtiiii
/^4Si«4 '««!t «oi'L BlrnvMihAtlv MkisiO. joi tixglt
.qlxfanoil
loo'iq <>
-^i»To bJiucf^ jfoiiiV'
in iae next place, it io oonteiided x'or petitioiicr txiat a
trust relationaxiip was erected Isy the pressiitiaerit ol' a caeeic I'or
ths luularioe o:^ tJae acooiait aiid deiuaati lor p&^iueat thereof on ths
morning tiaat the auditor o! public accuur^ts closed th.e "bank, and
there are cases viiich eeeui to so aold. ouch is the rule stuted
Obiter in the opinion in People 7» UhicaKO iituik oi" Uoiiimerce. 275
111. App, 68, in irhien, hswerer, t'5o oi the Judj^es declined to
eoneur* The same court, wh'sn the prsciee question was presented
to it, in the prior case or fi^ople v. Bryn jLawr .it^^te Jaatikf 273
111. App. 415, reyiewed tue authorities <iaj.d held tuat the luere
presentation ol' a oneck «rith deuiand lor its payment did not create
a trust ex aaleiiclo. the Justice who wrote the opinion in x^eopif
V. Qnica^Q Bank ol woiataeroe^ dissenting. In the yet later case ol
People v. li'irst Italiitfi ^tafce Bairik. 2^1 111. App, 1, the court
said:
"We are oi t/ie opinion tnat neitner by the presentation of
a check in person by the depositor, nor by a deiuarid made through
the presentation oi a drait ty & dra,^?ee oaiik upon a deposit£.ry
bSJik and refusal to pay, ie the amoimt segregated from the general
fund or the deposited woney ^a.de a trust fund separate and apart
from the general assets.*
One of "the Justices again dissented.
In People Y^ 0*Connell. 282 111, App. 155, in an opinion
filM ifovember 5, 1935, the second division of this court, reviewing
the authorities, held that the drawing of a check and presentment
of it with a refusal of the bank to ps^, did not amount to a segre-
gation of petitioner's deposit, nor amount to an augjaentation of tke
assets of the bank, and that the relation between petitioner and tbe
bank continued to be that of debtor and creditor. The statement la
the opinion in People v. CSfaicago jiank of CoBMBerog, 275 111. App, 68,
seems to have been to some extent based upon the opinion of the
Supreme court in People v. Denn;iardt. 354 111. 450. That case con-
strued section 13 of the act of July 8, 1931, (111. State Bar iitats. ,
chap. 16a, par. 37) which has since been held unconstitational
!9n09
9';
>ws ivirt
99 « 0* ^ntfoasf^
0 i^iixi'>
1*
and void by the Suprwne court. People v. Union Eank & Traipt- 9^-,
S62 111. 164. We therefor* hold, on the authox'lty of these cases,
that no truat relationship was created by the presentation of the
oheolc as described in the eriflence.
Moreover, even if we assume tiiat either as a result of the
original contract or by reason of thft transactions including the
drawing of the check which iEamedi at ely preceded the closing of the
■bank, sueh trust fund was created, the evidence here is not suf-
ficient to disclose such tracing and indentif ication of the fund.
as Would entitle petitioner to a preference. Petitioner relies
0" yeQp;^e ▼. Bates. 351 111, 439, but that rule has been greatly
modified In the latex cases of Peoyle v. State Boxik of Maywooc|f
564 111. 619, f^nd Colegrovc v. Gaupp. 357 111. 499, which cites
PftQple V,. .State Bank^„ef Maywqod^,, The opinion in the case of
People v^ State Bank pf Maywoo<a says:
"Since the right to reclaim a trust fund is founded on the
right of property, and not on the ground of compensjation for its
loss, the beneficiary loust be able to point out the particular
property into which the fund has been converted* WVien he is
unable to do so, the trust fails and his claim becomes one for
oompensation only and stands on the saaie basis as the claims of
general creditors,"
Sueh, also, has been the view of this court as expressed in the
eoiaparatively recent cases of People v. ii^irst State Bank. 274 111.
App, 46, and People v. Citizens State Baxik, 274 111. App. 444,
which It is believed are in harmony with the views of the Supreme
court and the weight of autifierity. Begert on Trusts and Trustees,
vol, 4, sees. 921-930.
J'er these reasons the order is aff lined.
AFFIRMED.
UeSarely, P. J., and O'Connor, J., concur.
a/'.
^'■' >y »i .tTcuo* •o»'3t«pre 94** x'i bior bam
' f9't«t*x(* »W .i^di .III 55^5
■ r 5 i T 0
i.ija«i^ iiniix'i,- iUidiu .'- ji^oiwistJk
,;.»#4iflWK'f s«'^ ■vifi^ ^oi/« ,i:fi«rf
BtH al bB'
itoiai^o (Wi
i^^s bo^^v't^. '^9-.^
^9Jt't IJboax
^ailU ,
"3
'i% ham .
th9jsnltt£ Bi. %»
I'H'OnO;
-dM
»an6
tm ftmr satigisax. bakx of
Pitt tri tiff (AT>s>«llfifit), j /^|W€aI. J1l«lri»)iICIFAL 0091IT
▼•. J Of CJHICASO.
28 5l„A. 6 82^
m, jyiiTicn o*e«ai^M a»bXinniKB Tin oPiHioji oy liiE vv,-a.vi.
Qb 1u«« ]>, 1.933, pliilntiff ^brought tm »eilon on a yrtwlaiory
li#t« r»r ^^«^^'. 4«.t«d Julif tt, l&^se, 4M« 90 <l«y» after d«tt, iia4«
l»7 4l«f«Bd«nt i^oiffB U, l^biu, tuff pii^^ut Al* it ^»rtir^t««4 l»j tla«
iSu« »» tl^fi B«t« w»« lit ,$5ll,»ft. i}«f«f3d«nt9 «^a«»ltt.<»d th« balan**
dtt« on ^# i3M»t« &» el»li&«4« but iil(N9i ft «ouiit«relaiM in whloh thf
ftir«rr«<i ih»t ^laiotlfl' hj|« Jitt«n|^%«id t» ««ll tk« vtoiUc (il«ig«A ma
^^Ilott^fftJl t* tii« 8«t« l>ir tt lEVtetly lnsiidft<$uat* prla«. mX that if
ill* stock had b««» »old «it » t^ir pri&tt th«r« wottlift r«&ai« a o«iiBi4<-
•rnl&l* «Rftunt <!!u« ^•I'tmiant* »ft«>r tn« f«^«nt of th« not*, Th«r«
VAC a Jury trial. 0<iir«»4ikfit A« C. tobin'ft »«!»« was «n Motion of
Iplalntilf «tri«Je«ri fwim %h« «ount«roXo.ln. Xi)«r« «a* a Tsrdiot and
4udtf»«ri>i in f^var of dafoindam ItoiOB ii&. Tobin on has* oo-unteralais
far $14, 704.04, ttud pliikiAtiff ai»^«aXa.
Vm roiforA 4i8«I<^B«* tkai 9l«intifl «aa a n^iiaaal bank
•aaduatlng itt li*i»kiag W»i»«a« at Hei»i»kM», JU. J,; t^tat tho KXavator
dit^pliat 0Qai|>ari7, Iise., vaa a Iburm Jarsay oorporatioa oondueting a
niaiiaf««iurln£ ^ia»t in Mabokan* Safandaot ^•1«b t^, labin and kar
httftbaad rati dad ia GSkieafipo. tiho awn«d S50 aliaraa of tk* far ^almo
•f 11^ par ahara of Uia |>Taf«rjr*d vtaek of tka KXav»tar tfuppliaa
Co., af «kiek tt&9.9Paiy tear kuat>and va« % ^Ireetor, Ha waa prcoidant
of tko &««iaral yir<tFroof ing Co. of lilirtaio, a aubsldlary of tha
Owawral Firaproof iatg Go, of youBgotuan, Ohio, and had baan aoxmaatad
with tko Chioago mmpu&y for 3d /aara axeopt for fiva yaaro aiica ko
ftXttt
jCtf ^
':^t l>ll*tfMlf
r««14«4l At Youuigtio^n mi^ was •«!•• AiiniMccr •!' th« oM^miy. a«
lB««aB« « '1ir««t«r •! tki* Sl^rmter ;^ppli«» Uo. in l»»«, a4i4 r«p-
r#t«t}t«4 Mr9. t<»feln*« l&t«r««t in t^«t Ma^Miiy* iU wmi «l«et«4 tk«
3L«i«t U«* *• a «li«et«r of tlk« a«t»^ll«« «(»fi4j»aay lo Oaioto^r, 1932,
t«r » r**r, «U34 ^e t««ti,il*4 tii*i ix* h«4 yuatjf Ifitisat* lcuowl«Jc« tf
ill* Mss^Miy** bu«la«s» ttteau»« of nia w^rlc wltb th« oMkjor ttock-
holdftrt of ta« OMqiaay in •*«urlR^ * h«v &«»4 i'or th« Mi^yaay; uuit
l»«$lct)lB« J«nu*r3r l« 19^, h* tpmi » grmmt fart ef thx*« M>iithB
«a Ih* VttsiEi««» ttf the T^mptmy, tm4 wubammumxlf Mtt«&d«4 vnrl^ua
O«tob«r 1, X93«., «f<iii>l» M«1«B «.. JablA ti«rroii«4 ^2S,C00
froM fiXaiK^til'l' banli, g«v« ki«r 9elXsit«rftJL proulKsory not* lor that
UMttAt du« r»ur m&ti%]ii9 sS%0r 4»t«, «ita lnt«r«aw m% ^% par annuK,
•Ji4 pl#4g«4 h«r ftOO tkar«>« ol' atoaji; la tlba StappllKS Ua. aa oali^ktaral,
JPayAotJtt aiT tha uat* waa ^majrtuit«Mi4 by Aajr l4usL<au4, t.. C. Yaclu, tiia
atlEiar 4,iitm'>^m»x%, %a aeia vaa r<»:aw«ii froM tifi«« to tl4B« at tJ&a ra-
tttaat af 4al>ndafita. tti.n a.aat ranawai aot.a« viiicii Is tua oaa la
»\iit, vaa datatf July as, I93S, dina Oato^ar a^ . 1»38, but it vaa aat
raatlvad ^y 4ef ei danta tiatU Aui^ua> 9, 19332. ifra« tiaa tiaa ma
flrat aata aa&a 4tta ta datttte«r, 19S:i, plaiUktllT vaa aJuaaat oonlla*
italljr pr«>aalag far 9«yn«Bt an4 daftridartta aaislni^ far tiaa. Daf aB4*
mat* «a(la {»ajf^arita a«;r ra^atlae 49600, togattear vilb lnt«r«at aa tha
aata. Plaintiff rafuaa^ ta irroAt «ny othar ranewaia, aad bftar
netiae Uia ataak waa aoli ta pl^intirf at auatlaa by plalatlff *a
attomaya la Ha1»«ka8 at IS a i^'^rm ot fa,75w. ^.radlt waa i^ivan aa
tha nata far tfela aaauat aadi tha fella»lag Jwnit tba laataat ault
vai %r(Hi^t.
la ita atata»aat af elala ru«d Juna 1, 19.^, ol«l«ilff
aaad fmt^ ttta r*tM af tha aata, av t21,5wi>, l*aa Uia ^2,790,
laavlan a 1>alauoa af $19«899«I9, altlt Interr^at tnaraaa at •US par
aaaiUB froa ^9mAm9 11, 19 3S, ttea 4ata tJsk* ataax aaa aall.
•- "I'-i I'lJt M' UX '>tf
' ' ' .'
•<*t.i9i»»%
f »i»ijipn
July Sti, !»:», 4«r«»4wU» i'U«4 Mt *»rri<laYit of i»«rlt0 m4
••t'Ofr* in wkieJri iJ»«y iUb6ltt«4 tb«r« wat ft l»«att»«« dut on th* net*
• f $lf ,%»&•%&« (k* 9lmimm4, 1»ut ftTttrr«4 that if tk* fttock haA b««B
Iftlriy »oX4 1»y DlaUtlff tii«r« WQVklA i»« a )>ttl«aie« 4u« AmttadmntB
»ft«r th« fftjfWffRt •! tbt MMunt «w«4 |»lftintirf« vf #6494.75.
l^fmi^mn%M furiber ftTerr«N3 ttutt niAgotiatUat «tr« oftnrl«4 ••
1»«t«««n tU« purtlfft «i»J& r«f«^ranett to the iftftHtHi: el' th« lottn loid th«
«x«9iiti«i» (»f tti« fi^MVal &!»%«• «a4 9*jW«Ht«i ii^«y«eB; Um% th« last
B»t« «•«• iSui« @«t«l»Ar S^w, 1.93^, i*^<H» th« i»artiR« hft4 furi>4«r n«<»-
tlatil«»iiK le^rjting t«i«*ttr4 « I'urii^dJr ttxXmizi^u &i %i»% of j9ayn«nt; tbftt
•e Mi&ytmih^t d« iiji'^, ilL*f*u4mti%» «ff«jr«idi i& pay $3!0i< «n tii* prlii«ifftl
««t4 |3S^*&0 iat#r««t in. «#»#i4»r^tiofi of m. turthviT (txtflmsion of 90
4nysj tliftt vrX«istiff «fi>r«4 to i^rtint « r<ui«»«a for ck.* <!&>•, trhitb
i«f«n4»!'?.t« di«i o«t iiM3ie«ft, wrid <m Ji^ir4Rilr«s* %2, xs;3t, d«f*i.<Sau<tt r«-
««ivi>4 % X#tt9r fjemt s»l»I.Atlff *« «itt(»fnft7il at liobejtou Infoxttlag A«»
l'<M8i4«£4t» th«y MA4 tbe «iot« for «aa.l»«ti«MA; t>uit th«ro v«« oonroo-
l»an^«ne« h^%m9fm th# i»»rtl'!»«^ mi^ fi*i'mt^mt%» wor* ftdTl«td t>mt tiao
•took «#ul<i ')»« »«ii4 ftt 10 A* A. i>o««ml&i«ir 13, 1^32, anlsBe ibo aoto
«»» pftid lis full; th«t ^tff^i^wrii^ «i4vift«4 pXairjtirf thoy woro unaMo
to ftvy tii« »dt« at tj%«kt tiJftt Hmt offitrod to 9«y net l«08 tboa |7& a
»<mth «B tho |?rlnttifftX 1b a^^itioxt t& ii%t«jr«ot; tiiftt aftarvari
^Iftlntlff parp'»t%m4, t& iMctm »eld th« »t(}9Ji on Qft««sb«r 13, 19 3S, at
$$ » ahtur«; yaiAt tA«jr« «iui « totta of $S66 oharoo of profs rro4 otook
of tfoo ^i«vator %i|»i»ll*>o ooi^pasiy of ti»o |»iir vaXu« of Hot' o atiajro;
tiMit tho otoolt "^wao elosoly ^eld an^ «»• »ot li>t«d on ony oxcKouso;
**»««t««t It *»»• »ot trad#4 iJ aa4 »o roftdy iimu*o%» for it "oxlotod
«t tA* tiwo of ssild »»lo or ftt any ti»o 6«2oro or slnoo;* thot th«
stooJi trfto p>rof «rrod %» fc» aisaoto on ll«iuidiiti©» »• »oli »o to IMo
•ftWJingo SW4 that tho totol ftoooto woro ^l.Too.otO in oxoooo of ih«
total li>asili tl«o: that th« ^eok Tala« of tho otook oxooodod $m^
a oiiaro; tHat tho Siii»clieo ootti^aaj h^d actual oaah on haad avAllohlo
i
It« fcvl'STi*::
0 1=^ : * 4 '
' .«(^ I'illlil
for %h0 )?r«f«rr«<l vtoeit in ffxtt*** mf $5tt « Bk»r«; thmt it «»• la*
f«»«ilBl« t« ••tii&at« th« !S»«rk«t ▼•!»« «} th« stook At the tia« ^f
tuff niilt tr »i «i»3r 9tli»r tln«» b^t tbftt th« ttttok w»t worth in
•xetas ©f #ftO tt tfeai-ej tfe»» j»rl«»r %o tla« •&!• pi^lntifjr ptti»ii«h«4
no notlee ol' tit* tttX* aAd notiri«41 n» «h« •>:««pi 4«l'«n4«nt« tf 1%%
LxktmtUn f •«Xl ih^t a teaks that tk« •«!<» was }i«ld iu prlT«t« mi4
M4 la hy «tt« Af fii»&niirf *t «i«ploy««a: mat thia ««• purely ar^i*
ttmxy 9m.^ ib.« p7i«« «a« !••• i^aja oxi4N.t«nth ei* ia« aatuaX Taiu« •f
th« ttetlt; that 4mtmt4m*i%9 ««r« aot tv^vao ti«a« to find a traynr.
AAA <i«f«'4a?'t« pifa;y#4 tjsuht ti^tt^ laiav* Ja-I^^wet agaiast plaintiff
Jti«V«ali«fir :I3, i933, 49fm'iaMt» fll^d an *af3*idaTii. •f
iH«ritft»* ali»»ltt|jEig that thm ma»vim% {iXaiistii'S' oltti»«4 «ait du« on Ui«
nata; AanlsMl thtr* «aa way MSA MM. »*i* ®' ^J^^® stock ^4 d«tii«4
thara va» anything dii# plaintiff.
^ Mayah f, 1.9S4» plaintifr* ky l«air« ol^ «ettrt» filM an
aA«n!|«4 etiittci^imt af elaiii, !!^i4 it wa« •r4«r«(l that 4afmdant«*
affidaTlt af £s«rit» ^%mm4 %& tha an«»^«d •tat«n«at, l«av« mm» glvM
««f«ri^aat» to fila a s^t-aff vn^ to piaintirf to lilo am aTfidavit
• f narlto %M*W0%9, m tiLO »oai« dM^ vyialetitff fil^d thlo «K«ada4
atatOMARt of eiaia in vhioh it eiiikitsi«4 tho faao oi" tho noto, #21,100,
littt aathis^, vao oaid altaat tha eal# of iho cmlif^t^ral, (m Ayril 6,
2.934, dof«n<4anto fil«4 th«4r «ott«it<ir^aiJi i& vuaion thay «llo,^o4 thoro
vaa duo th«tt faroja plaintiff ovor urAd aNiira any ous duo plaintiff
fron thOHi, *tho o^en of $3d,$90 kjr roaooa of thoir c unt«rolaia
agaittot plaiatlff ii^ tho ou» of $49, 990. i^, trfaien io b«oo« upon tho
fallowins allogatioao,* X^on follows n stit^auetit of tho aaklag
•f the orljgiaal Ia«H3 «iJad noto, tho r«aowalo, tho plodding of tho
•took ao oollatftral, th« roduotion of tho prinoipal by Vkjaonto,
loaving |21,SC>c;i tho faoe of tho last aot*, tii« nogetiotioao k«two«i
ikit parties in Ootnbor, X95S, raid ouboonuently dofttidantt* off or to
»ttAj<v;>«t .it linr-jta jv»^r^ A^M*? «.-. A/if *|0^
•' -"-^ «■
JU»dJ«
pmj 1200 •» th« prla«i]iftl ard l»t«r«ftt of i5£2,&c iii coi.si.j*r«tl«a
#f in* rvncvaX of 90 day* froM &«;iob«r 2v , 1938; tiunt plaintiff
ft0r««<l t* •Ki«ari tUM «•%• for 60 dmy but tiaia w«» uot aeooptablo
to th« 4of«n'1i^t«; thot th« pajrtioo had eorroopon4oaoo oboitt thm
oal# of tho itoidi ojb Xkcoonilior 13tM: tiiat dolonioiita off«rod to prnj
not lo«« than |7ft o aontii efi tb« prlcolf*! and tho Istoroot; that
•B l)«o«Kboir i:^, 1932, plAlDtlff hnlA m priyfa,tn solo ot tJ&o off loo
of Ito ottomoys 1« Hoboi^on, f^«ro tho SftC aharoo of atoolt voro
l»ttr^or%«*d to }iftv« bo«n sold I'er fS » onakro to one of plftl&tiff *o
oaqiloyoeo, thA ]»rde«9ds o)t aueU calo h«>l&£ applied b^ plttliitlff oa
tho noto, l«aTln({ a b.»lofieo of |19,2$&.SS. 'mo ot.>aut«rolaia tiioa
o#t u? tho aaoots and liitbllltioo of tHo Jtl«v*tor ^ppliao Uo, ;
tiiat tiio otook had noror ^an Ilatod ojrt aa^ oaca^uuiKO, «aa oloaoljr
hold by a ooi&i^ajratiTol/ f««r ladlTi^ufilt, «^d £iad aX«ajra booa la*
fro^uentXj tradod lis; Uiut It «aa Itapoaalblo to dotorKtao Ita
ojcaet ffiorkot valaa Oir. tita ;at« oi t^o aala, or at muy ouxor da to;
that 0£ tho day oi tho aalo it vaa fairly worth #58 a aharo; that
for oOToraX yoaro pli^lstlff vao o&tirely faAliia^r dth tho flaajaoiaX
ooatfltlen of tho SlOTator SitppXiea Co. by Tlrtuo of tho baiahiac of
that oeMfan/ with »l*tiitlff b»«Jt; ti^i»t prior to the aala dofvdanto
had obtain Ad aororal loaca fra« pl&intlff on ta* profarrad aad
oo3tn>0n atoc^k; th«t pl»ictlff kfiow tho Ritfioo and ad<lr«asaa of tho
^artioo who h«ld tho ecwtrolllng otook in the coapany; that prior
to tho oalo plaintiff publl«h«l no notloo that tha aalo would tak9
pluoo on ^oOKbor 13th, aad dof#ft4anto woro ftliren no tlao to fiad a
bayor; that plaintiff know #ft a ahare waa laaa thau oaa^tar.th of
tho aotual walao of tha otook and toiow that the prloo w»o far looo
than othor liit«»reoto4 partioa woali UaTO paid had thoy knowa of tho
oalo: that it waa plaintiff ♦© dut^ to doal fairly and honaotly with
4«fa&daRto md obtain a fair prioo for tho atoox, but that it
fraodul«<:itly and eoliuaivoly aold tho otooA to ono of ito Okiployowo
' ■ f /»1K«v ■ •
' ■ -^^^f hints. »*^r ««i^ir«<jr
VjS% MV fl«i
for |9 « ihtr* *ltb«nt a<fv«jptiii#i&»»nt or r.otiet; tbAt this •*!• qoa.
•tlttit«4 »•, eoKfflrrtJlon ot* t.h« i»tc>«le WiA plaintiff frftu<$ul«j}%ly
tt<»ti^?ht to <!ftfrftuA <f«f«krid«ki3its> of tb» etotaUc. «lt)t«ttt «r«viitin(^ tkea
vltli th« t^rwc^jwda »J A boKf f Jt,d,*? oaXe of the stooit.; that l»y r«asMi
9t »tte*t e<3«v«r«ioji defen.tiw^tB w«r<i »afcltil»»d to reeovtr froa plaln-
ttff AOtu^l ^larsafcstii of 137,1 uo "^iWa int«rRSt at 8.?^ frwa D*«*ab4r
13, 1938, «n4 til« TviTthmr »im <&t fl3,v'aO ftt |wnitiTt 4l«tti)i^t« tj
r«Afioii of til* f r«Aidiiil #£1^1 aotft os pl^ilntirf; im^ <i«f«G<*aAt« pr«^«4
tli«i Jui^«nt iMn «3at#r«(t in tn«ir fevor ^mi. against pXaifitifl f«r
M.»y S, 11?M, fialJBtlfj: fiie« a, r<»pi3f to ti** «eui tMj-olai«
is irnt«i& it «le> i«4 that 4mf^*iAatr.t ^, C. fel^lia had auijr istertst ia
tlbt« «to«k« b\3t ttY«rrff4 t»At li i*r«« tiie4^«4 Iby <!«feiv<lant H«1«r j£.
7ol>ta. n«iatiff turtiitfT lmU«^ l^at t^« listerttt aaA l»««a
pi^miotljf pski$ toy dl«f«7u1[a]Sit»{ 4«'if.4«?(^ ta%t the •ai«' of t)i« «t»ftk wmi
»t A frlTatt salt; d«ni«*4 th%t fan &.«a«t« iui<l liiftbllitltts •f Ui«
Xl«iriit«T ^ppllft* C<»* ««.r<^ i»» %lX«ii(%<$ in t^* a«»ttiiter«lai« mh'I de-
nied t^^t ihi« ^r«f«rjf«il iitadi^ -«-»« «(»rt)i l&O t« |35 « e^'iar*. It
ftirtner 4«fil#a that itXa-intlfr was fti^tirttXy fftalllar with Ui« ri-
ttfUBeiai.l''(;o«94itien «f the Sufpliev 6&&,§nay, ajad ft'v«rx'«4 tUat it &mA
»aMA« Imt OB* l*iw ta t&« SupfUl^ft oo^^ftAn^ ia IV^Sj ttnat th* steeli
i» <|tt**tt»n w«a t^ld |!>ur8U3tnit to « r^o^«r cdaf^rred ic tii« ooix%t*r*l
B*t« wiileh proviile^l that in ess* of ti0r«iult tli* steek aigut to* vvld
ftt ptttoiltt or $»iri,T:4^t«ii i^&Xst witl)*ut notle* or ndvertl »•««&%, «a4 thmt
plDbintiff lei^^^it ^<»**a« %&e parc^a*«r «>t sueh sale; th»t plaintiff
aetlflei^ d«f«irHltMstf ou j^oT(R&to«r 2&tli that th« isale «ouI.t tak* pla**
SNl*tt)%to<ir 13tH, tin<i th9 tis« »nA filta^** '!?*r« i^iTea; tnat th* plaintiff
ai*Q a4v*rtl»*4 tit* *al« wowld to* «t ptttollc auetioa at a 8pe*ifi*4
tlja* aadl ?tl»** ac4 taut t^e •»!« «a* «* ht'ld.
Plailstiff furt]&«r a«iil«4 tUmt It kB*i» oi ai^y vn* wiie wo«l«
for
toi<J »or«/th* «toak tH«o tU<l plaintiff; l«nlM tli* eoiiT*r«l«i of tto*
a -i'!* ¥ fy^M .1^3 *,■■■??. t r>
■■.jjirfjfc astatic •' •' ■' ' ■%.UiS''fX3tq
X*
•toek and d*rii«4 «1X chari^fts ftS' adLsootKtuat^ eAd plaintiff further
r«9ll#4 in th* •lt«ni%tlT«, ttiat li' tA« «»!• should b« adjudticd
lavftii*! fftr Mt/ r«*sa«i, pl«itttiir «till nuiA %a» wvook o«rtlfle»t«
in lt» (>«8s»«ai«a «ind Control «tfid viui ftt all &!«•• abl* to r«turB
th# »%ntHt ttalApAlrM t« <l»l'«»'ii»»is» but that 4«fcr«iftnta, »ft«r
i»«ti0« of th« IntARdcd tnl* iwd ^t't^r the «»!•, nirv«r 9fs'«r«4 t*
pmy t^* cidt« •r •t«.#l«i«« 4i*u-:amA(itA tia« r«tuxn of tii« steoiu
i!3tne« !}*f •!% 'timts !ft4«»itt«4 t>iat tli<p a^/^uAt oIsImM Iqr
;p|«intlff wft« <!tt* «in tli« n«t«, plaintiff «d th« trlAl «r th* «»••
off«r«4 thii not*, eMR9>ttt«4 tlio «y»ount ^ti«, vhloti wa» n*t dlspttt«4,
«B(1 r«>8t#(l« fhsrtupon it wa,« angroed b^ eoyunfttl %ixa% 4«rftridAi2t«
«sttl4 %<? glr«n tJne oepvrtuFiity to op«n ^nd cl(»30 tb« «»•«,
flMi &«ai9ta«it •aahl*!' @i' plaintiff ^anJc, eali«4 by tf«f«&4*
Mit«, t«»tlfiiMl ht waul «m9l07«d by piftintDf baak; that It itlll
k«4 a corporate «>;l«t«n«!a; tk^t le 0«G«M^<l>«r, 19S4, tiia flrtt Jtatl«Mal
Baak ef 4t«ra«y City i»ttreixas««l e«rtal{^ af t&a ate«t8 of piaiutlff
hmnk 9m& a«f!us*a4 c«rtaifi ftf Its liabilities; that prior to tnat
tia«, J^aimnry, 1935, ti)«r« «raa a r#orfeianlsatieit of tho plaintiff
1»an)c; An4 that ti»« a«90t» ««n««rnsdl in tao ifista^it eult still bo*
long»<3 t« the plaintiff bank. This "ifltnoos was Int^r eallod by
p^Xaintiff and taotin«d that too attoiid^di tiae aalft of lh« eoliatoral
on ^••mAmT 13^, at 10 a. ». , %t t&o off lea of ttia b«nit*t attomoyot
that »T, anltJt, pr«»i4ai»t of tho KloYator ^p.al&«<o Co., aaso to
tfes platntiff bask or that >mTttlBg, m&A wont with tlia vltaooo aa4
tli« loan olfii^ of tha ^mk to tha attoznoy*a offioa; that tko at*
tornay aRrtaune«4 ha wo«ld aoll ti^a »B0 sharoa of atook, tho oortlfl*
oata of vhlah vaa ro4uea4: that tho wltnaaa bl4 #1 a ahara: tkat
tkaraapOB Mr. ^ith bl4 IS a ahara, m.6 wltnaaa iu turn bi4 Ift a
aharaj ana titara 1i»al»« no furtJ^^ar bids, t^-ia atocic vaa d«almra4
«al4 ta wltnaaa far tha bank; that a aaahlar'a ahaaJi far #si?5w/ oa
plaintiff brink waa haadad OTar f9T tha ateok oartifioata. The avi-
;.iB9 MM*--
tsn
i««n«« further »Mm9 tlittt IM« wmm nothliag, More ot icao Hum m
1ioo)dt<*^«plB«: ■)Oec»tiBt with Ui« piaiAiifl* bauJc; timt aft«r th» saI*
i>V. ftailth w«lk«4 l»%eJi to th* Viot^ with th« vritmttww; %kt,X pri«y t«
thftt tlM« iir. anltte li«4 called at tJli« bank frof^ \imm te tlm« And
tKftt » f«v igonttia ^rlttr to tli« «»le ii« ft«k«4 iiftitb Uov ib« i;i«*
T*t«r £Su9^1i«s 9<».*fl l&a«lii«»{) v»« goiac >Ma4 anltii r«oli«d tiiftt "it
VMi fttlll not oporfttiBg ijr> tJeio lil&ek,*
3i»lth, «a^llo4a hj 4«fof3i»Kta, t«»tifi«!d tA*t lt« l«ft th«
•taploy 01 tlt« lXoY!itor ^pBll«« Go. About ^lOittAr^' 31, 1933, an4
«t tli« time of tiio trisl «»• Yld««pr«i»idout of a Aoir York oorpor»>
tl«»; thAt li# w«« «K|ii.o]ro<t as g«n«ral auoiii^Br of tlio Supplies oo&fiaof
alKlut Ayrtl, 19dC;, «u9d la Jloptonber of i^«t year ^ao «^i.eet«d pr^sl-
dimt, w^fciioii offioo Ho holii uAtil ^'^ l«»ft ifi 1953; Ui^at b* vao proMBt
at th« oalo of tk.o oollatoral <%i th« atiom^oy** offieo ta ;;»oosikor
Idtlit that ho wont to the %mk th«(t jcoorttiag atii tol4 Itr. it»atobol4or,
tko aoolotant OAoJ^tor, that h# ixao i^^^olag ct -r to t^o e«lo aorooo
tteo otroot; that aft«>r th«|r i,:ot to th««> offloo tlio lawyor otatoi ho
vat s«iRg to 9«11 tho S50 ahikreo of ato^^k to aatlafy tlio aoto of
Mr. 0ii4 Mrs. Sobin mt%4 «xplAlno4t t^« torm.8 of tho »alo sa4 askod
for M.$mi thm% Jiat«t)aoI4«r bl4 $% a eharo, txie vltaooo thon bl4 IS
a oiiarot mi<I £mt«li«lilor taoa 1»i4 $ft a aharo; a&d. tiioro boia^ ao
further bi4o tho atock was sold to Bats^olior; t^at mft«r tiio salo
vitBooo valko4 aeiroos t^o «tr«ot with At, Sateioldor, vho a«So4
wltaots wliat &« a«ant by "^eable-erosoing him*; toat vltaoso ro*
l»lio4 it «aa not a ea^«« of ^3uli}X«*orossia£, bat ii« was aao«k»4 to
••« stook of raofi valuo belaid of^li for so lltU«;tiiat about two
wooka later h« was at tk« bttoik «ad «oico4 li«teJaol4or wfeiat ho vottl4
sail tha Btoek i'or, «m<i Bateiiol'lor ro»ll«4« *l^or tho aaoant of tho
aatt.* The iritBaBe tHon gavo tootlr<«n]r o^noornlag tha aovoto aB4
liabilities of tha Xl^vntor :Sttp«»ll«o Co., and a groat auuty flaHaolal
atatOfi«ata loRao4 by that company aro In tho r«e«r4. kat «o think
»f
^h •J'&i
S^t/
:0i.'*» )
• /
a 1 ■■■ <!►:•)
u
*&«tkey 9«ri*4 ol* tin* 'toy «^i6» ti%«y •x?i»ttt«4 to get lJa« m»n«y to
pny the aot«, W% tM» alno f«ll iArou£h«
til* corr««von£«na« furi^iiftr »h««a th»t »eM* tlioi* i^fiArwar^
ftlAlntirf was «tiil 9r*BBiiig Tor payment, wh«n di*fttt>lArit« «t«t«tf
th«t Mr*. TolDifi hA4 tftn lnt«>r«tt or xeorc tmaa $Xt,ooG in r«*l OKtAt*
loeateiH at^mr th« ynivvs'sity of Cliteikisio; titat p>lttlRilff a«k«HJ th»%
thi» %# tum«»^ over to it, >ut f«rt«r oflflui enx>r««r}on(3«(iatt nothing
IT** ieno In tiil* matter.
I>*f«n«l»ut» <ii?«ro ^9th gi-vae %««i ^ay* iiotle« Ir; writlo^ !•
|»«y tiiio not<'f <t»t thm eoIiat«r«d weui-i b« 6&ld» AfttfTvmri ihoy wor*
«ftoh D9tii'l«d of thti tiflso an4 |»Xftlitt of th« s«lo. PX >Lnttff t>uhii«h«i
en iHa lOtK -wid l^^th ot '^^m-i'^ar in « &o«rM\ii%p«r oire!AX!^tln«s In Hobo*
kmti ft un^loo Um% the otooJc •iittl.d %wi ttoXd, givia/i tli« tljn« «Rd
fi'l^ae. It «^«Lff i^« ^lit;/ of d#f«ii^«At» t« s«# tibat s(mi&« one wmi pro**
iiRt "Wh* n?oiil<i r»«ty «i fair i»rl«« for tb* •toatk (if th«»ro r'^m «ueh *
pmtttnn or cow «m) (McSowoljL v., Chicago mm«X Worko. 124 111. 4«*1)
MNl ftffiitr«3tly th*y Had %dt^, th* n»Hf*i<ii*tit of tu« ooKpany, nnooor
at tho sal*; but it 1« qxitlt* obvie>u« that no ofi« would buy th<» otook
at tho tlt^ft of th* *al» beesuao It «as «ntir*Xy too ooneulAtlv*.
MiA »e tiilr* judlolal notion at th* graat "leftrftBolon «.t th«t liit*,
(M£feai..,Xf.,.CM.^M.a >lJJUj5.JLlJ^£i^^» » 2''5 iil. A»o. 65; At*ia*qn.
ft..A..e, y^ Ky,. CO...V.. U.^ S,. a»4 U. a. 843; ^&rriJt.ikm»J^AM.
Hicfe^OKa, Ya. y. a*nitor*oa. 97 f. (aa^ «4.) 386.) fhor* «a« oracti-
•aXIy B* Aqaity in any enouwlDorad oro^orty, r«al er peta'urial, at
t)3at tlm*. Of ooura* it va* plaii^tiff^s duty, r«^'itrdl«*« of th*
tuiliifiit«4 i^*««y $iymi to it in tiio ooliattral not*, to «*X1 th*
•oXXatoraX. ^d to ^«t La th« «al# nf it if* the «tri*t**t ^o*4
faith 3ja<S ffiiir 4«*ii]ift towanf ^ofordant*. J(ut it i* obvlou*
»l»lntiff m ««t ^itn th* uts%o*t &994 faith. It h«d h**B pr*»ffiui;
f*r n«arly tw* yaars for fayoiwt of th* a*t«. th* bank did a*t v*at
01
LA
tltn o«lIftt«r«l ftt m&f ti«« *t any prl«c, «n4 it It aIcmt ttxmt it
wm» willing to aujrrmd^r it to 4«l'«»(tiu!itt ttt anjr tiK« uuon p*ya«»t
•f th« in4«btttdti«s«. In ri^ot, thin i« •p*«ifl«AXly •T,«t«(| liy
«eunt«I ftv ()«f»nd!ant» ia hin brl*f «i;i«r* Jft« $«y«, **«> wish t« ytint
«ttt ^at th« i^nitllAtt Qlaintiff) i& this «■«• to&n now Atmndoncd
t!t« position it t&Alnt4kl&«d thjroui^Jn^oat tk>« trlAl t^Mt If it* aaX*
«»• invalid! it wanted to tondor tha atoalc f^r tJfto amoufit of tlia
••t«,* ^fm^mitm iltjt »9t ivant th« atook undar th«e« eoedltloaa,
aii4l, ttnfertu7<ataX7, Itlta »aigr i»*oi>l« at itmt tij»«, vara apiiarantly
analgia to |»ai^ tba noia, imd altouldi sot li» 9«rmitt«(4t to oo«pal tba
toank to pay for thia ap«OMl,^tiira «toak 1X4,000 in a4di,tio>& to tlia
|92«&&0 duo OS tl^a Boto« whan ti%a a took h»4 no M&rkai »«•} but
▼ary IittXa» if tmy, ai^ao^Xati-vo TSkitta. Bat ono aonoX^sioa oaa
1l« draan t't<m %h* airi4«»fie, ^i «lia ooart aitauXA teava dir«et<^ a
irer<liet Jar th« i»X«UUitirf at tho elet« of t^a «aa«, but aat
)iavifi# dena ao, fX^dJ^tiff *a aiotioa for Ja4|i»iafit in ita favor
fiti«uX4 liatra bofoi «XXow«d, Bot^it^iatiKidiaiS t&a vardiet.
Stoa Jtt4g)aa«it of tka MuBiaipaX ©o«urt of fcaua^o 1» r*T«raad
att4 the oauaa T*&.aaA«4L with 'Ur«atlofia to autav jud^waat is ^Xais-
tiff *a tmr»w for tka anioiiat of It a eXalK.
K«3Mral7, P. J., and Matahatt, J., eooeur.
iiotrnx-
Of-:--
|4»>
'%l-%4»i:i,it^.<:
•9M tfiii
il
fTt(*V
iKI8 TLQSa&KIt, )
Appellant, )
Ap^xa... i 28 51. A. 5 83
ill.. 9XSJBJI, J ^ ^ «. ./_ _ _.__-!
m, JU4TICK O*C0iSJSO» ffiKLZVlSfi&I} YHK OPliiXOK 0? TSX <»JOHT.
Oetob<»r 17, 19 3S, pl«iiitltT OAUsed Judl^psMit by eenf*»si«n
to be «»it«r«A on « i>roRil»torjr Bet« for 9500, dat«4 August 14,
I98d, <tt« 90 Amy tiftor 4»t«, payAbl« to th* ordor of tiio C3iicftg*
l>ightlaj( lixturo Co. Atnd by it oaaderoorf, against tU9 B«je«r, Al
Sidor. 7h« ju^i^«nt «ae for |711, b«iB«^ tho fao«i oi tii« noi« with
iiitorcHit sindi ffta. SO sttomey'8 fo^-s.
Mi^ 30, 193n, th« court on saetioi. of dof«ndMnt op<mo<! up
tb* ju4gtt4dat Mid ga^o hla loaTO to dofood. Dofondant'o affidairit
in support of tbo motion was erdorod to stand as an affidavit of
ffiorits. It sot up tJ^iat defesAiiant l«aim«d on itt^ 17, 1935, ttiat
SuAffAmnl by eoKfoesioja had b«fin «rit«rod s^g^ifist iiim; tnat dofendsAt
liad paid tiio aoto to Uxe piiyoo, tho Chlaatfo ^^Ig/itlag Vlxturo Co« ,
asd hadh rtio«iT«d tbc ncto fro& tlie payot at the t.i»«, but that tiio
a«to was afterward lost or stolon auad that plaintiff was not th«
ovnor of It; that Ootobor ao, 1939, throo lays aft^'r tbo judgnont
>y oonfffisslon «as »jat«r«d, plalritiff eausod an Axoc'^tion to be
issued, wuieh was rttuniod by the bailiff of tho tiunleipal oourt
i^o-vombor 13, 1932, t^o return showing defeclant was not found and
that the bailiff had found no i>rop«rt.y on whloa to satisfy the
•aeaution; that dof«&'i>ant had all the t.i:iiA r<>sided in <;hioa«;o; that
his resideneo was ^iiTen in 03x1 eagu telepn ^ne direetorios and he ooul4
hsTe boon served with an oxeeutlon aad plaintiff desired to do ss.
JuBS 1.^, 19 35, the oaso «as heard before the oourt witiiout a jury,
iko ssurt found the issues in f^ivor of dofeti4«knt, Jttd|isi«nt was en-
tered on the f IndlBg Mid plaintiff appeals.
I
tr
p U :^
i5 O U •11«X ■^' O
m .m
9X9;^ ■
•«(•
,9l»««'
"■■ "'t'-.a «**<* •r«ft
Plfliiiitlff oontmnAt H^nkt uBi«r thv !«« the butrdau wa» on
i«f«n4*at to •Btftbliaki hio d«f*»ii»« of pwfakimti thai ht faU«4 to
•ttsialn thio 1aur4«B Mid the finding &a^ Judgia«>J3t In <lofftnfi«tnt*o
f«Tor Ir ^ikinot tho laanlfftot w^l^ht of thft cnrideuoo,
thm fiu»nti<iti ioT ^oolalon 1» a qu' etion of faet to b«
iot#r£..lii«t4 frois tt ao»nl<««»ratioxi of all th« «Tl4«noft. Flulntlff
offeror iho not* in m-tXimi^tt m*A r«»toa« Xi^f m'u\m\t oall«d t«o
wlt£t«B««a, JtiQtih L* SiSil3i»aii, fon&or presl^ont r&nrl trftaouror of
tho payo!^ oT the not», tbA Ckl^aieo JLlgHtin^ Flxturo Co., who
t^stlflo^ that the tiot4% wa« paid to niM by d«f m^^is^mt. Dttf«rtdiacit
also toatiflo^ that h« paifl th« «ot« to th« payeo. On th« othor
«i«lo, Maurlo* J. FionsJcor, trothor of plaintiff, t<?«tlfi«a ho
paid th« «ot« to the p-^yeo at tho r*f5(U^9t of th« smkmr ©f tho
»et«, »nd that lati^r on he gav«» tho aoto to Uis 1»rotiiOT, tho
plaintiff, ill »art pa.3rsj;«nt for nonoy h« had borrow!»<! froE ilain-
tlff,
tho oTli^ftnoo furt ior shows that Mauri oo 3. FlonsJic«x>, tho
4«f«n4aiit Al ii<3or, aarid Alox a. Wol<i^a wore partner* in tho son*
ttruetion of % building an4 had ipuirchaood el^otrieal fivturoo and
•tttij»Bi«at for tho Istill^^lag ftm> tho Cnicago Llj^.riting Hxt-uv Co.;
that th« fixtarto cost noveraX thousand dollars, »ll of which va«
9al<? «*ooi>t $5<X? -iMS'J, that defmdi^^-t, Al Sider, g«v« tho not* In
l(ttfstion in pajtsent of that li«il«jrieo, it to«in^ th« ^owunt romaifiing
4il« ttcm Al ISlior as hio r ^rt of tht ao«t of the fixturos. Aft^r-
wajrd iho partnership was disaolvod, there bein^; so»« isisundoro
otan^fini h^twoon Kaurieo J. Flonritkor and th« othor tiro.
Sidor tostifiod that '4ft«>r Uile occurred, aaurlo* J.
Flonskor ttnu^i fnr tho f le contaiiain^ all p*p«ro in connffotioa
with tho purchaoo cf th« -lectrical oquipwont fret;* tho aiiea«o
Lightinte »lxturo Co., an l that wi tnoss turnod ovor tho fil*
whtoii ixiadvortofttXy oontai««d tho ttuoanooiitd not*; that h« took
'■■■cinia«iQ
^'- J
.nxi
LP*
htJB*
i,.«. .i«»tti3 fiM ^ MoviMial .olxif
» rsotlpt fron Plonsker for th« fiXe at th* tln«, tmd &• t««tl»
fi«4 •!) th« h«»riag ti:i«t hi* attorney, wxie was Uica eoaduoting
tho del'«u«Oa ha4 iJio roeoipti his attomoy tU«*r«upou r«pllo4 that
k* 4i4 hav 8U0h recoipt; e >uua«l i'or pialntiiT Dion aakad his if
ho would pradiioo tho reeolpt, \)ut tharo vao no r«« onoo; tho r«-
eolpt «a« not prodaeod and noth^^iig further was oaid utiout it
dttriS(» %iif> a«ariiig,
AXox Of. ^oI«ua, called by defeudaAt, testified that he
delivered the note aad records in the Chiua^so Ligjtitin^ fixture Ce^
files after tho dissolution ol t'ae> p&rtnersiiip to ioaurice J.
PloriSiier -^.' got a receipt for them frc»a ^lotieicer. Ihie reeeipt
was Bot proiuoe4 or aeeaunted for, nor was the witness ifiterregat»4
suffieiently on this point. Although eou>j»el for i;>l^intiff In his
brief laye stress or tU« fuet tiiat the receipts were not pr«duee4,
ae reply is i«ad« to this point.
Salxsian, ealled by defendant, testified that at the tine la
fueation he was president and treasurer of the pay!»e of the note;
that unofi reoeivin^ the note he <iieeount«d it at his bank; that
later def »ri<)%i't, the saker of the note, i^ade a payment on aooooBit
of the note, took up the old note and gave a n^w on-^ i'or the bia^Anee^
vhteh he also diseount«d at ti:ie b^aak. 4s furt^ier tf^atified that
soMe tijsne after the nets was p>ii : to .lim, Maurice J. Ploneker ooko
to hie otfiee imd asked his to tasJte so»e sort of as endersMBent on
the not* tut that he refused tc :!o so; tnat Flonsker i^ail the note
was pnid* Just why sueu endors«sent was £i.eeessar> is not explained.
l<k further testified that PlousKer said th<^ note had been paid. 2k«
testi«£ony of iiis witness is sueh eocfused,
Plonsicer d«iied he h&d ever called at ^alxi.an*s oiTlee;
deni^^d he ^ald the note w.-xs paid, end denied that be asked for Ml
•sdorsement of the note by Salsaian. Me testified t/iat he net
talman on th« street one day ia September or October , 1932, and
%at-
.■.p.nttf
ifnse-*'
I '.i A.ii LlO J. U.
It
\iAif *IM» m%9\i% ^lU OA ngWJjt
9tat«<3 to gtftlcMcai Ikmt ^oftrndant, 3i4«r, toad n»t 9*14 tb« not*;
that th« wiUiosB had giir«in th« not'«^ to iai» bjroUior, who hmd
J«40B«nt oonfosaod on it, «tnd anicod JJlaliuaaB Xi^ ho woul4 1»e vllllnK
to oott« to court ao a ^^^Itneos. Juot why it would !»« lioeooaarjr ia
roquiro any witnosa we siro una^Me to undiorBtaad, atiA ia« oxpXanatlon
la atada. Tha ju(!«^:j»ent had h«im^ «r.t«rod oti tha Bot« at tiiat ti»a audi
it «aa more than two yaara th«r«aft#r whan dafanetant aought to op9n
Vip th« jttfignant, Tha witnaaa Wel<«iia waa tha imala of j^aarioe ^.
FlonBif«r an^ %t tha tluai* of tha trial «&« atlll a p%rtn«r ol tha
daf«n4%tu, A3L M4ar,
Maarie* .T. ^lonaksr farthor t«atlJ'i«4 th»t on Auguat 13,
192S, ha nawa hla cheek to tha Chiaano JLightiBii fixtura Co, for
|S07*5i^, aQ4 tha eaxieallad oiioai^ ia in tti« r«»oord; taat this w*a Ifi
paywi^nt af #300 an aaaouxtt of ta« laota and |7.{iL* fo^^ Interaat; thai
ha ai't^trward pal^i} tha b3i>,l«i<noa, $Kj^, out wh«th«r tey &u«>ttJ&' or eaah
h« w»e un%tl« to isay. fho teatiii&oiay of this wltnaae ie alao oon*
fuaad. Xf tha arl^ljuad nota w»« for fSww, *# i*r«; aiir.:.tle to undar-
•taa4 why, afttr |tC>C was paid on it, tha note in ^ult wrtuld ba
glwan ritr IBmO.
'"dJTtAr a earefitl eoi»ald«r«ition of all th« eviaattaa In tha
r99i»r4t OKtah af whioh wa h«v« not dlaeuaaad li uiia opinion, wa ;%ra
«iRaM«» to 8«y what fh<<i faota In tha eaaa ur^. In th^ao olrouaetanaat
«a earmat say that tha finding and ittttdpaikt of Uxe triaX Ju^ga, who
•aw ttjnA h^^r^ tha wltnaaaaa t««tlfy, ia i«^'»ln»t tha naolfaat w«lghi
pt th« awifJofioo.
Far tha rtasoxaa atatad the J|u<i«,a«nt of tha i^uiiioipal eourt
af Chioa^o ia affinsad.
Ma^raly, P. J,, and M«teh«»tt , J., concur.
a£ &&
.Or.-*:l,-
»rt' £ji;'t*ijsc j; X'^yi^.
^1
'40
. ,ti»tMGM
38716
LOUIS Goam,
Plaintiff,
▼«•
UAX KIRCHHEBOIR and KIRCHSSIMfiR
BROS. CO. ,
Defendants.
U. C. LIVILGSTOK and LSO T, KAUPMAK,
Doing BuslnesB as LIVll^iaSTOIJ & KAUilU^ ,
Petitioners- Appellants,
vs.
MAX KIRCHHEI1£ER and KIRCHHEIMER BROS,
CO. and FRAKK WSSB,
Respondent s«Appellees«
ROK
APPEAL raoi SUPERIOR
COURT Oy COOK COUBTY.
O
5 IX 5 83
X
MR. JUSTICK O'COHHOR DELIVBRED THB OPIHIOK OF THB COURT.
Livingston and Kaufrean, attorneys, filed their petition in
an
a personal injury case, praying that they be awarded/attorney's
lien under the proTlsions of Par. 13, Chap. 13, 111. State Bar
Stats. 1935. The defendants in the personal Injury case filed their
answer, denying that petitioners vers entitled to a lien. The mat-
ter was heard before the court, without a Jury, who found against
petltlon-ers, dismissed their petition, and they appeal.
Both parties agree that the question involved on the hearing
and in this court is a question of faot, and that the trial Judge
having found in favor of the defendants this courtis not warranted
In disturbing such finding unless it is against the manifest weight
of the evidence. With this we agree. Both parties further agree,
as stated by counsel for defexidants, tnat "The only point in dis-
pute in the case before this court is; Did Louis Cohen ever ratify
the contract which his wife, J'annie Cohen, signed on his benalf ,
purporting to employ Attorney Leo iLaul'Eian in a personal injury
case?"
The reoord discloses that plaintiff, Louis Cohen, was
soia»i\M toga JA3.1
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divae
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LA jCa-iI
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rcBff *J«*S ,111 , i.C ,f,i .■ o »nofslvo-i(? ©ft* i«fcn« ndll
lenifc^ ijiiijo'i oiiv ,>liwoo ari^ e'lo'terf IvTJieii saw ««^
tiislew *a*'tlnijia ©aj ^Bni.*;^. aa»laa j^albal't doun goidtaieli) al
-Bib cii iaioq ^Xiio ©- .edrusl/Us'leJb lol ii»«nti<oo x*' fcoJ^^-^s •«
"?3«4BO
MV
,«i8rfoU eiuoui /ftJt*ra«Xq J«itt »»»#lo«i* fcrfoo«i »ril'
injured In an automobile accident on July 14, 1933, which he claimed
was oaiiaed by the negligence of defendants. The petitioners' con-
tention is that on the next day plaintiff, by his wife, i'annie
Cehen, signed a written agreement by which Cohen purported to enpley
LiTingston and Kaufmaua to represent him in his claiis for personal
injuries, and for which services he was to pay them 40% of any
amoimt recovered; that six days thereafter, July 21, 1933, JELaull&aB
■aw plaintiff Cohen, eiqplained to hiia that his wife had signed a
written agreeinent of employment as above stated, and that Cohen
ratified and confirmed the agreement*
Defendants' position is that Fannie Cohen had no aut^oority
to sign the agreement on behalf of her husband; that it was net
ratified by Louis Cohen; that on or about July 29th Cohen expressly
repudiated the document signed by his wife, and employed attorneys
McKenna, Harris and Schneider to represent hl-a in the personal in-
jury claim, for which he agreed to pay them 33 1/3 per cent of the
aiBount recovered; that afterward these attorneys brought suit on
behalf of Cohen against defendants to recover for the personal in-
juries; that when the case was about to be tried it was settled by
defendants paying |3250,
Vhen the matter eame on for hearing before the oourt peti-
tioners* counsel called itaufraan to the stand and proceeded to ia-
terrogate him as to what was said by the witness jxnd Cohen on July
21st which tended to show a ratification of the written docuinent
signed by Cohen's wife. Counsel for defendants objected on the
ground that the petitioner, Kaufman, was endeavoring to establish
"agency by testimony of the agent," This objection was erroneously
•ustiined. The evidence was entirely proper; the question of agency
WlkM nln no way involved* Petitioner was endeavoring to show by
direct testiuiony as to the conversation between himself snd Cohen,
that the contract of employment signed in behalf of Cohen by his
kBMdJUo »/l xiojtxir ,5C(?X .M xLdI ao ^ndMoofi «» X id oi90<^«« n* at bttitstnt
-aoo 'eisHoiJiJsq srfl' t'^iastfism't^b 'to 3onajili.a«n dri;* ijrf ftj»ett«t> saw
^oX<3«e o^ li^ttoqtuq a»floO iioixlTr ^d* 4-£»fl«»»!CS* a^fiJi'xm a b9n^l9 ,a»M3
Jjtno9t^(L 'io'f. mi££o ntL nx iuXA i^waas-xq*! oi ajsttj'tiffiZ bOR noiBanirlJ:
Xtte "to ^^O^ ittoxU ^ijq o^ a.v oxvt»8 tiox , iivtjsii
amiR'tus^ .^-f.ex ,12 ^Xwl, ,i9j'i«&i&A^ a-^i> xle **;: .':')voo»i; iauoaim
M A9xi^la i^ii Sliw etsi iAti^ alii &i Jb9iix£Xqx» ^OdddO t'tital&xq w«a
osrfov' .ttrut f>iiH ,/.>e;t4B:^a ©vorfB a* iJ its iav.o lepras to Jtfxerja^tiifii cit^^Jiitw
,d^a«>Kis«'s;af^ tf^i'lli&i
XXae^iqx© nsrioO xl^feS xlvl- vty^d'^ to no t.c.-'i in-AtioO tsivftd y/i b^itttAt
-fix LenoeapQ: !>i., .■<!»R«»t«*^". .fianrfpe f»fi« alTTflP ««n««XDM
-ai X«no8i©< j.tcmbi:i«'X9& isal£^ tuinioO 'to tXaxfeef
-Jtteci ttooo •ilJ »ic'i»cf jiiiino.'; ToT: no »fiuBO rjaJ-dfita •d^f^aexHI
efej-SToirf t>n--; g'lnr ■ .TttuiiJi fteXXaa X^anijoo 'ai^noi^
#aa.3ii;i3ofr a»*c;ic' Bit* 'to «olJs.-oi'll^i^*T £ tp-oiIb o^t £>a|jnel rioirfw talS
•Ji^ no •;•"-:'•.. -J, . -.abaf^'t"^-' . ' hsst^lB
XiS woAB .. . . .uvfisfcna saw taiioi* tc^?»1 ..b^vXovtti ^«w on nlA a«w
jiirf vu ..-.,, .. ;.^, .^., ..J. ;,, *^ w.ii-.,-.-: 'aaiiaoo 9ii indt
wife WAS ratified by Colien. Later tbia testia&eDy was admitted.
The witness testified that shortly before the aocident he had soca
"business dealings with Mrs, Cohen; that on July 15th, the day after
the accident, he vent to tlie police siation with Mrs. C;>hen and a
Mrs. Goldman, at which time he wrote out the contract of eiaployiaent
which was signed by krs, Cohen on behalf of her husband; that en
July 2l8t he and Mrs, Cohen went to the hospital to see Cohen; that
he then told Cohen his wife had signed a contract employing Kaufman
and his partner, LiTingaton, to represent him in the personal in-
jury case, for which they ^ere to receive 40^ of any amount re-
covered; that he teld Cohen he had the contract with him, and
Cohen replied hie wife had told him she had signed the contraot,
that it was all right, and for petitioners to go ahead and v/ork on
the ease and do the best they could. The witness furtner testified
that at that time he showed Cohen the written statenents of two
witnesses wliioh he had secured and which were in Cohen's favor
conceiming the accident; that he had secured the names of two
other witnesses and was continuing his investigation of the ease;
that at that time Cohen was in bed with a bandage on his nead;
thAt Cohen told him to keep on working on the case and do the best
in
he oould. There is also/evidence an iteiaized statement of the
serviced performed by petitioners beginning on July 15th and
ending September 8th, on which date petitioners received a letter
from Cohen in which it was stated that Cohen's ^/ife had no au-
thority to sign the contraot purporting to «iiploy petitioners to
represent him In the oersonail injury case, an I that he did net
desire petitioners' services any longer.
The evidence further shows that this letter was dictated by
Mr. Harris in the office of McKenna, Harris & Schneider, «nd
nailed to petitioners,
Cohen, called by petitioners, testified that about five d^s
-01 inuoiy , .-) 'r;'A)4i 9rl9o&% ot ®"X*r ■^»ii4' xloiio"
,*B»rr^n©o 9ii* fsfingia feeii Bda- mid bleibtisi 9'll^ siii fe«JtX<j»i ni^iio'y)
OWi 'to 0"
-ua orr fcj
\uo& igdiiJ i&st^ ftiU* cb tna »&at> odif-
:'*T.i<v^'i had ©ii n&ii. ff ao8a«rii^xw
r-.t ^£t^•1l<' .i-'.
• .-. -a .-> Z .1 i :i «) c; o S h B 11 BU
R^jt ^lii- iUQOJB JJ&Uii fcsiii.a:^^ , s;'i,jiA>,'j. ■. .. j w;
after the accident Mrs. Cohen and Kaufu.an called at the hospital
wher« he was oonfined to hie bed; that they talked about peti-
tioner*' employment and the contract signed fcy hie wife; the wit-
ness oorroborated the testimony of Kaufman to the effect that
his wife had si^ined the contract of employment and that he had
•aid it was all ri^t. On cross-examination he testified that be-
fore the accident be Jid not know the law finn of AiicKenna, Harris
& Schneider; that he first saw them about six weeks after the ac-
cident at their office, where he went pursuant to a c^l from
th<H&; that about July 29th a Mr. Uerkin, together with Cohen *t
cousin, c3Bje to the hospital and Merkin presented a contract,
which Cohen signed, employing McKenna, Harris & Schneider as his
attorneys to represent hiv in the personal injury case, for which
Cohen agreed to pay them 33 l/3 per cent of the amount recovered;
that Merkin was sent over by kcKenna, Harris & Schneider; that
afterward, on September 7th, pursuant to a call from the office
of McKenna, Harris &. Schneider, Cohen went to their office where
he signed a letter dictated by Mr. Harris, addressed to the peti-
tioners, advising that he did not want their services longer; that
already
before he signed the letter he told the attorneys h^/liad a eon-
tract with Mr. Kaufman and that they told him Kaufman should not
have (anything further to do with the case, to vkiich he agreed; that
his wife was present at the tiae and she also signed the letter; he
denied that he had said, as the letter puroorted, that his wife had
no authority to sign the contract aaaploying Kaufman; that he nerer
read the letter; that afterward licKenna, Harris & Schneider filed
his suit to recover for the personal Inluriee, and when the case
came up for trial Itr, ii-cKenna was representing him and Kaufman was
not there; that he had ne further dealings with Kaufman after he
signed the letter of September 7th. He further testified that at
the time Merkin and his cousin came to the ho8t)ital. about two
-tS^q iu9die b^H-lBi \9iii i^a^ :&<9cf ai^[ cxi b^ak'tacyo saw 9si sx9dM
-tiv ail} iftiv alii x'^ l^orc^.t^ iaaxtaQO »ti$, kam Sa^ai\oZqF^ 'arc9aox#
bod 4ii iadi basi )(mm^oiqta» to ^n^stinoo '^ Cj^ii atlw vJtii
,^»^ii;^n<»-j J3 t^inUfn^^qi etX^t9'f& btus. L^iiqaQSi ^di oi dote? ,nlisuo9
; ^eTCovo'.)9i Jnuaate ^ ■■''■ smd3 x««f o^ fe>sBT^ fl©iio3
••t'fto «/(* acei't IJUbo « •# ^oejie-xo^ ,xl;f? rfi^^fttic" . yis'''^(9tlA
^indxr »olTio ilsiit oi *ii»w «0fi«a ,Tt«6i9a(Jfte ii eiii^E »«£meil©ii 'tp
;^firi^ :T»3Hoi 8«oivi©e -jl^ri;? ^fuiw ;foii fcifc »d S»di 8jai»iyfc« (STC^naxJ
^oc fclMorie nfiiii'liXBii «iiii 'Ic^ ^*ii? Jeds b*-u$ «M>-iiijJui ,«M xl^Tx^ joa^J
^•vfcn <jil ifids^ jfttm'iwKA aiii^oI«i!» d-ft^rtJaoo »riJ ct^^» o* Y*i^o^*^ •«
•d ttt^M tmtxlueA diiw njioiiawb ^idfiJii^'l: oa bttd 9d isiii ;i*x9di tan
tm iiktii b9i'tli9»i Mfti^ui ah. ,di\' iB^tM»iq9& tg rtti^L •di *»«a-ta
«wi ittfodie" . JU;r ia»«t ffdi oi &m.o atauoo aid bOA alifH •«!* ^dt
weeks after the accident, hie cousin introduced him to kerkin and
eaid iiCrkin repreeented ^r. A.cKenna*s office; that tney were "the
biggest lawyers;" that witness then stated he already had a lawyer,
Mr* Kaufiuan, and Llerkin then aslced him how much he was to pay, and
he replied 40^; that iaerkin said they clxarged too mueh, tl^iat •¥«
get the hest lawyers and we will cl-iarge you only 334; we will get
yeu a lot of money - about ^50/JOO;* that he then signed the een-
traet ei^ploylng h.r, ]kc2lenna and his firm; that he told th«a his
wife had signed a contract before that time onploying mxt i^aufman
and that witness had said it was all right, that hie wife did right
In signing it; that thereupon Uerkin asked him, "Did you sign it?"
that witness replied, "Ko;" that Merkin then said, "Well, then, it
is all right, we will take care of it,"
The ftviderice further shows that on August 2nd, 1933, peti«
tioners sent a notice of attorneys' lien to deferdants 9nd it was
admitted on tVie bearing thut the notice was received by defendants
on the following day.
Defendants called attorneys MoKenna, Harris, and Gerhhon,
one of their associates, MoKeuna testified ttiat he had a conversa-
tion with Lr« Jtiarris about some other attorney who was supposed to
have sometiiing to do with the case; that afterward Cohen was in
their offices and stated he did not want the other attorney; that
there v/aa a conversation about the contract signed by Cohen's wife;
that Cohen said she had no business to sign the contract; that he
did not want that lawyer to represent him; that then a letter was
dictated "by Mr, Harris, addressed to Kaufman, which Cohen and his
wife signed, advising Kaufman that his services were no longer
needed. The witness testified that afterv/ard he started to try
the personal injury case, when the matter was settled. On cross-
examination he testified that the Cohen case came into his office
through a cousin of Cohen's whose name he did not recall.
■>4i* ©-xev yfiui t9ai ;»oi:'l^fi a'j^affls.'U" *;a.t safid'rqsri: ^liiTieii lii«a
:iomi woxi i!Klj;i M^ium a»di nlAiBH box ^a&Mlusjl .xtf
gird ,..-.:! :.i'.. .-Jl'Xl'i., ,»tj|«i .;fe»S6 iiOtMkAOM ,tSJA .■^flLix®*'^^"''® i-0j3«J
tiJsi^i btb 9'tl^ eia iuii$ tiii^X'x lis Sisw $i hltM imsL mm^a^lv ijssit ktut
SI a^lB aox hid* ^ai^ ^9:4.92 olilitoM aet^m&^aiti JurS ;Si ,^siia^i» nl
8£w Ji iii^ fij ^fem'!')/) od^ a»il *$iit9in.^t&m ^& •ox^oa a j««8 B%9nolJ
(aoiuii^t; tan ,9i'3.iMi ^»0e»ASiJ>i a^«m6ifSjs fcaXIiso **aiil>ii©'t»CL
96. iuAi \i9m%inoQ 9^ araks oi sedoiaj^a en &u^ •'is l>i>«Q nofioO ^sil^
a^v? xaJd i 0 oeiidr jiiiij ;jbx4.j ^ift»a©iq»-x ©.t^ i»-<w*ii; *i>iiJ Joew A«a fciA
•xfiijaoX »« STcaw aaoiviett nixi ^jmU asiuiijiiUi aaiaJtvfc* ,&»tii,Hi« allw
-••ft-Xd ao ,fc»IitJf>« i««w t4ttiHiB 911? a<*^rtw ,«««© \;iutHl X««o«l»«r •***
«oil1e aixi ot'xl »ia«^ •«ao nsxloO art* t»di i,9i'iki90i t>ti aoiiaalamx*
• XJU»09i #oa biJb til »ia;iis ©aa^iw i^aaiioO 'lo ax«i(»o b iiguottii
Attorriey Harris, called by defendants, testlliea iie w&a a
m«aber ol* the firm that represented Gehen in the personal Injury
ease; that prior to September 7, 19 33, when the letter wa« pre-
pared in thftir office, signed by Cohen and his wife and mailed to
Kaufman, he had se-reral calls from JLaufmaa in which Kaufman ad-
vised witness he was rcTjresenting Cohen In the personal injury sultj
that witness said hie firm represented Uohen in the case, and if
Cohen di-ln't want them they would withdraw; tnat ICaufman replieA
he didn't waunt that, bat if they would give nim part of the fee it
would be all right for Harris's firm to proceed with the trial;
that witness replied he was not Interested in that proposition;
that afterward, on September 7th, Cohen and ais wife came to the
office at his request, and that he dictated the letter to Kaufman
advising him that his services were no longer needed, and had
Cohen and his wife sign it and mail It to ilaufmanf that at the
time of the preparation of the letter Cohen said ^cutufyjian didn't
represent him; that thereupon Mrs. Cohen spoke up and said she had
signed a contract, and then Cohen and his wife said they didn't
want Kaufman in the oaee any more, and tnereupen witness dictated
the letter; that at that time Cohen said he never eiuployed Kaufman
and that his wife had no right to sign his name to the contract.
On oro 8 s-examinat ion Harris testified he didn't knew that
Kaufman and Livingston had filed a notice of lien on defendants
in the personal injury case; tnat iiLaufman never told him he had
given any such notice; that he knew jk^erkin, out merkin didn't wokk
for their firm; that he brou^t the case into their office; that he
had known MerKin for several years and he came iiito their office
now and then. Ue denied taat ne had a conversation with Kaufman
in which the latter told him he was goint to ineist on his lien,
Louis Gershon, the attorney associated with jyicKenna's
firm, called by defendants, testified that ;ie was present at the
v-t.-' >• Inao^t^q ajl* ni as do J b»rfrtese»o»"i t»^^ aatt •xt^ t« Tecfmaw
frsiie^'x i^i£i'xj.^jsd i4iii$ ;^BTtitil^ i»Iud« Y#ii2^ m^ii^t inaw i'^^ih nsx!.o3
;^1 sal t»£tj ic Jt£q iJttii ^ri^ bAuott x^slt 'ti :tu^ ,#«ii^ tnus^? i'af>2b siii
looi^rieofieiq ;l^iijc£d° nX fe£>^a»79jni fTon ajsw a^i MiX«ei aa^n^iw ^srft
teii {)ar> ^b^hassx l^^uoX sa a-zaw aaoXrt(»s >sXii ^«£(# aiXil -a^0<t^te
9xii »B j^cAv ;a»jH'i&Ltti!i o>f ^1 XXsiS taui it a^ia atXw aXi^ £?fu; n«»iioO
#-^al»il> jaaMliiai^ bi»0 naileO 99^#aX siiJ to aokt»^Mq»'iq ^si$ te 9rIS
]^sl 9djBi bi&a ba^. qu dloqe adhoU .anji, aeati&imii i»ui ;jsXf( iBfu^tq^r
t'ablb x»[ii 0isn alXw mia has, tseita^ ewii^ Jj^fiu; .jTo^rt^aoo a Jbansia
Mt«^aX^ 8B«a^i:« a9qu»i9tii hae. , oxem pi£; 9a«d ax£^ ifl ftfiin'^u^aX toav
£UMi'li/jB^ h9x9lQia» -x-arsiit »A hlms n»doO waXi iadi im t£tM ;«ati9X 9tii
.j^8at*rt«o ^- Asa alii ngXa «»* 4*13X1 on toJf alXw alii »»fic^ fcoa
J«tti »OEat *'afcifc sxi bsX'^tX^ao^ 8i-'x«eHaoii«aXffiU9ata-8«oia fl«0
a^os^b.iaXsl) ao a© XI Xrj soijon ja l>©XX't iwaf. «i«;>sai'i|iri.»i bma uam%»MM
bMti Bii «Xi .!?V9U asiB'tuA-A *Hft? ;da«fi x'^^'tait XAtt««ia«[ aiW aX
llow ^*a6Xfe aJt^i' ,aiaiia«k waai »is. J^*/i;J ;aoXJon rioua -^tts n^vij^
aH i^iii ;a©iti- tisuj •sao axi* J^ijwxd act ;r«ii» ;«(i't "iXaxW lar
aoJtVXo iXsiii jJiiJt »«»© 9A brua atAax Xjnaraa to'i aX34rt»4 awoazi Jhaaii
iu.^ijj«^ riiir7 aoiJsaidvaoo i^ iw*n sii JjMXf JbaXiiab aH »a*iiJ' ba« w»b
.«aXX alii rt« iaiisiij oi i^nlm. »^ *i^ «6*d«X •£« ii»ldv aX
a'«iiaaiio-4 xUXw i^**X&oaa* v;a£rtotf** aii4 .HoxlataW alwoo.
time Mr, Harris dictated the letter Tor the Uohena to sign; tJ.at
at that time kr. Harris asked Cohen if iLaufsian was his lawyer and
that Cohen said, "^o;" that iie didn't sign any oontraot, kr,
Harris said, *Mr« Kaufman oallad lae up and represexited tliat he ha4
a contract." Cohen replied that A-aufman waa not hiB lawyer, saying,
"Your firm is my lawyer, you represent me;" that then the letter
was prepared; that at that tifiiie Cohen said his wife had no right to
sign the contract.
In rebuttal Kaufman was called by petitioners and testified
that Mr, Harris had called him to his offios about the middle of
August, and "I told Mr, Harris I had a contract signed by Mrs,
Coh«»i and that after the contract was signed I showed it to kr,
Cohen at the hospital;* that "Cohen said hs would pay me 40J{;
that whaterer his wife did was all right;" that "Your Mr, Merkia"
went to the hospital and told Cohen he would handle the ease for
30^ instead of 40?^; that Mr, Harris then said he didnH want a
case where the parties had some other lawyer, but that "Mr,
Cohen insisted and he carae down on July 29th and signed this con-
tract;" Jthat witness said, "Mr, Cohen is now in the hospital and
he couldn't come down * * * on July 29th * * *;" that iir. Harris
said, "Mr, iierkin has brought into our office a lot of cases in tl»
last few years," and "We hare got to pay Merkin out of this east;"
that "we Till pay you for the services you have rendered;" that
witness told Mr, Harris he was going to insist on their lien, etc.
A client cannot, by discharging his attorney except for
good cause, deprive him of his li«\, Tulka t. ChtcaKo City Ry.Co..
269 111, App, 234, Under the Attorney's Lien Act, ser^'^ice of
notioc claimijig a lien has the same effect as an assl^vnment to the
attorney of an interest in any judgment that may be rendered, or in
the proceeds of any settlement that may be made by the debtor with
the client, and is such an assignment as the debtor is bound to
..rtiYo^
J-J8
; I'^tj^'Cfi-xc saw
*.-..- la
(to ^oO
•a*
aw
if, ^Odil '.! ■
, ".-■OiiiT^S
J Si! vii;
■xi
si i^nu ,«£t»iXe •dS
respect. Baker v, Balctr, 268 111. 418, Where a person employt a
lawyer and agree* to giv* him part ol" the proceed* recovered lor
the eerylces rendered, and the dei'end&nt 1b notil'led of this fact
iBy the attorney, il" the defendant afterward settles with the client,
he vill be required to pay the attorney in acoordance with the terme
©f the contract between the attorney and hie client. .SHti,t>h v,
American Bridge Co.. 194 111. App. 500.
The evidence in the case is that the day after the aecideiit,
July 15th, Kaufman prepared the written agrees. ent which was signed
for Cohen by Jars, Cohen and which purported to employ Kaufman and
his associate to represent Cohen lii the personal injury case, for
which he was to be paid 40^, Kaufman and Cohen both testified
that Kaufiaan on July Slst explained the contract to Cohen and told
him it had been signed in Cohen's name by liis wife; tiiat Cohen
said the contract was all right and for Kaufman to t^o aiiead with
the case; that Kaufiuan began worJc in the preparation of the oas«
on the (lay after the accident and rendered considerable service
in the preparation of it; that August 2nd Kaufman sent a notice to
defendants advising tJieui of his eraploysient by Cohen and the terms
thereof J- that about July 29 th Kaufman entered ir.to another agreement
©fiploying another firafi of attorneys to represent him for one-third
of the amount received, which should be paid by defendaite in the
matter, and the second firHi of attorneys likewise notified the de-
fendant? of their claim for a lim, but apparently defendants paid
no attention to the notice, which they admitted receiving from
Kaufmen, and no explanation is here made why it was ignored.
The evidence that Cohen did not ratify the contract signed
by his wife Is based on the testiifiony of the three attorneys who
represented Cohen in the personal injury salt, tnat Cohen tjld thorn
Mrs. Cohen had no authority to sign tne contract with Kaufman.
Merkin, who procured Cohen's signaturo to the later contract, was
•art'** "'"'■' '-'t t r u- :.,,
"tot ,»ai?D VI.'!. Jrf»fi«i^ J id
-?»b wi^ b*lii.SQn 9ai.w«iii a't«Aio.U« 'to unii: laoay ,j:f);tJfsm
i»jf« fcXcJ- fl»ii©U tari^ .*xwft r/3MU\t I«-««»i£»«T •fft «l nfffoD fe«>*n»8«-r<^*t
net called. Coher deries he made bucH statement, ETen if tie did
Btate to the attorneys that his ril'e had no authority to sign th«
oohtract for him, this would not he conclusive that he had not
done 80 because Very little credence could be placed on anything
he night eay. But we think the nsmifest weight of the e-videnca
is that Cohen ratified the contract signed Toy his vife; therefor*
the finding and judyment of the Superior court is rsTersed and
Judjpttent will be entered in this courtin favor of tiie petitioners
and against the defendants for 40 per cent of |3250, the amount of
the settlement, which is |13C0.
The judgment of the Superior court of Cook county is re-
versed and judgment entered in this court.
JUDGMSKT REViiRSSD AMD JUDGM3KT HERS.
MeSurely, P. J., and fcatchett , J., concur.
v" .
*tii ouis 9i xitX9tiSua on J^;i »t -ta
^JlJJlI ^i«r MOdO" nob
Tiw iisar uaxok tbusy * sSAViiitta -"™-<y«,
SCeft Its OOMfAifT* Xiit«rT«»or,
^SSi.A. 5 83"
im, ^»7XGS o*<^iii«6R li^Tfwmsi rm opxfiXo» or ?«»< couRf*
In ft far««l«iictr« iiuit« «fter iM% eaus* ««• r«f«rr«<l to
A MMMittr la ehane«ry, i\, Austin, <loljig busin«»« «• j(m»ai ii«ott
& e«., «iA« will h^rviBttl't^r b« r^f^rrfttf ie «« (li« d«r«!ia i«r<t, l»y
fe«4 «el4l to Xouis A. Al.1»«irt, 9<n^ ltis»t<ial3k«d Ia tli* i»uild&8|^ is
f«r*«X««ur«*on« 1000 (Wq t.^t»«!in4[) g.»lliNB pmt hour '^e^tt'
tdlv^nt ¥Mtiu» M«tUling pltiirtt* for 199^, en «rii«h hs li«<
ll«tt» 9fei4l $40011, I#«iFlng » )»al^o# ^« 9( %Am%\ %nmt \iy ih«i
%%rmu of th« written «oritra«t for th« sal« «n4 iuat >Xlatl<»a of
ih« 4i»tUXing tiX«»t, It r<N^«l»«4 th« ]!»rsfi«rt3r of t^« ooXXor
UBtiX fttlljr pa.i4 for; thot «t«o« tho i»lont tia4 not boon faXly
fftktd for, tlto ^%tmn^fm% ««• 4»ititlo<$ to r«ieoT« It fron tho
1ntiX<$liic« lHAi t)t# ^r^jror of tlto yetition itao thot ho bo pomltto4
to romovo tito ^iHtnt. Tko oiottor ««o r«f«irr«d to Ui* aak^t^r «ltli
(ftlrootXono tliot ho siak* U9 o »ei»«rAt(^ roport; lio femord tho OYi-
4m)oo« »ft<ilo ai> bis roport, found tbe oals of tho plaAt »o» oa
«1»«olat« ««<! not o eondiitlonol »alo, and roooKm«ndod tnot tlio
lBt«rroniitg i»«tltlen bo dianlvood. fho a»«tor oirorruX«d dof ct^dact *•
•%|«etion« to tho ror»ert, th«y w«ro erdor*d to st«nd oo •Ko^ptions,
ond oin ftrdor «&• «v)torod ovorruling tho oxooptlono, Approving tha
jno«tor*o Topert, ond tho intartroniad pttltlon oos dlsaklsnod. Oo«
foadoat «|}|>«aj>«.
tko r^ttootloa for dooioloa tumo opon tho ooaatruetioc of
%
>»i- li/ •
^-fi*
.•irV
tikimJ^ ««»hu4l4»k
«l<iV* Jul!.' •■• ■
4^.irtt«<i A 40 «3^««
m^ It^anM^M^t*
ih* vrlttwn ««iitrA«t for tht purfti>a«« mni •«!« ana ln»tiaiati««
•f ih« 41atUling f»l.«urit. ins oontraet i» dftt«4 July 19, 1939,
1i»tw««ti Laui* A. Al,ti«jrt ^«r hie Ao^iin*** 4««lpi»|«d «» tk« **l^r-
eh«ti«]r«* «i«a *lni««t S««tt £. €o.* A«ai^ftt«d it* tfet* "Contjrtakctort*,
And th« si«t«jri«l pMttWi «r« »a folX«««: *7h« l>ttreh»s«r« unii«rt«iic4»
Ift Ihir«l3ui»« iin4 th« C9Btraotofii undertaJce i« I'ttjnnliiii to tta» -Pur-
«lx«««rft, o«« Xi^^ {«ine ii)«aii«mi) galAoci 9«r h&\kr *&<»oit* oolrtnt
V%euu» Difttiilin^ Plant furtu«r 4ie«srl'ied in t^t «btt%«h»<l Iiitt«r
4»t«A <7u]iy 19, 19^, to ^. I.* A. Albert * ■• * For «•»« i>ttrofcxfto«ro
soro to |>oy ia« ^OBtraetojre %te oua of f^c^i^.&D • « «' ioXl-voroA ond
or«et<Ht on PuxoiuAooro * foundatioisio in Puxmrnm^xt* 1»uUiliiig »t
tiliioo^o, X.Ii«* Xhm» feliew oth«r provioioAo vkioi't hta not 9*rti»
ncAt li«ro« rho oofitJ'ftot it tigsod, *l*ouio a. Albert; Hmoot Soott
4 (^, H« Aaotin.* Xiio ooatraet i« os tiro pago of o X<iti«rh«ik4 of
*Er»«ot Soott 4 Co*** A tfairi p^e^o, ou tii« «at.« loUorii^^A, is
»ttoo^«4 «»4 oontftino ti»A loll^trleig: *x:oti«i>>to he, Agro<g««^|
A«oo»^»iiyi»g iott«r of i^mmm:k ^s^ t» ^r,, i^^i^f f, ^.^srii * =* *
caiioodgQa III, or hio ift'Ottixtoo. ^oooriptioa 'deott i^Xvont VAouiui
Matillitit^ I'laet lii».Tiii«s o oi^iitoitjr for h«UidXi&K 1.000 sadlojno por
hour of 4ry oX««i<ors' airty tiolv«at." th«xi follow tbo pjrle« and
tJ&o t«r)»» of pA^Wit; &#or %hn bottom it i« aignod, *Erfiost Scott
& ^mitpmiy, d, Auatin..* ^rintoti caiaoo %h* h^tt^m if- tho foIlovlBg;
*i'ftrtlo^lor oitoiitlon la draws to m* aonditl^ns of ooutraot
oriAtod on ¥aoM H«ir«of. * iM tfeo hattk of £aia third ^ago wro o
ttiuateor of prlniod parotfroi^t* mo fourth |»oro«ro$ife^ la, "OTIl&Hmap
Of a<^J3ft m^:^Lim, A11 ipaamt oad tf^^toflalfl, altlaough dolivorod, «
oj'o to roKoljo oar proiporty tmtil tho eoetiplota ^i«nt la poid for i£
foil, ttnlooa otixoroiao apoololly orra«t4,e4 for la oritiait. * It io
tblo ikorocraph tlm.% uoimaol for dofendaet oont#ff>d sutkoa tho aalo
of th« !»la»t a ooBdiltioaal aalo mtA sot aft abaolttto ona.
daa the ot&or aido, «oiu;aol for eoAji lain ant ooy that tba
ao.
•^ifiii.Jk'Mimii ^^.
3mai-^-»%t»'^ «uii'^ iitf^0.i.
■4 $0 mi
■.Hit *•»«»««» />»ittH nuv *«>iir»«<f»
:u» ii«»ft ;j^?»»Mv: ^pi Alii
li»^aA«X^M«'s
thXrA |i»£» ^r Ut« «ert«au«nt, on til* linMiJi •f wh^ian %]^p9%r» pmrtigtm^
4 »l»«Y«i ftuotca, i« aot « patjri of tin* GoairA«tt t)&«t t^« •«Nntr*«t
«iin«ii»t» of i^ui th« fiivt two »ab««s, «(»« is »i|^«4 toy llio 9artl««.
Xt l« «n •Xeffi«BtiUl i«l« thai iB a«i«tfuiB£ a ««ntra«l, Ui« ««iur>ixig
• f tk* ooutr«Gt i» to bo fouad 1» tho to]%« at th« «ntiro oontroot
vhoihor «ritton on eno or iovorta plooffo of ^A|>or, aik! tho 9X^00
vhoro tko olg»»tujreo s^p^oy i« »«& aiwAjro of oentrelliJig luportanoo.
By %ht» «QBtra.ot tooforo wo tho 9ttX'eli»soro «eTe«4 to put*
oMm^oo, »ja<^ tJbo eontraotQjro »^t««4. to ooii &244 InotgULl, » voouuai
dl«tilii»jK flatlet in i^o prtttxiooo ifi ^lUloii^o. ab4 it providoo t«iot
it io ^further «lttierllct«« i& tho Atta.0i««4 l<!»ttor, 4at#<i Jiay 19,
i9S^»* Tim «&ttaehe4 I«itox> io |»ai;o tlir««« oboTO »#«(tio»'»«l, mti tho
onXy roforoiKOff ici tlio eoiittr«kot to Uiio lfttt«r io t&ot « furtjniox
408ori]i»tlo» of iko »r®p*r%^ will l>« fou*id ii)i tko lottor. flM
Aoooripiloii io tJio only tpart of tJ^o lottor tu«kt eaa l>« ooostnteA
to bo » i»«irt of tl^o oontrAOt, Xhoro io no roforonoo in tho «oa»
tr«Mtt to tho offoot t^oi the oonditloeii o; tJnko oolo »Ay bo foiin4
ia tfeo iottwT. »«||o throo, or on tho tocLCJn thoroof . In theoo
•lrouftOt«n«o« , tlio eemiitioiio i>rifit«dl on tlio b«oic of tho lottor
iroto not iaoo rporo t«<t in ift»d w%$t« a 9«rt of ih« 0Q»tjr&«t.
7%io or4or of tl^o Stti^orior oouvt of aouit ooimty ai^pooloA
frOA io off iSKOd,
\»-
'? )
38736
PEGPLi; OF THIS SXATB 0? ILLII^OIS,
•X rel« OSCAR Hl^SO^ , at Auditor
of Public Accounte oi" the State
of Illinois,
T«,
IMMSL STAT2 BAMIL.
VHSKZaL BROTHERS COMPAKY,
Appellee,
▼••
WILLIAM L. 0*CO^}iiSLL, as Receiver of
the IkMBIL STATE £Ai!iiL,
Appellant*
APPEAL FROM SUP3KI0R
) COURT OF COOK COUKTY.
)
^8 5I.A. 5 83''
i4R. JUSTICS O'COixlSOH DELIVERED THE OPIiflOli OF THE COURT.
The Auditor of Pu'blic Accounts Isrought suit to liquidate
the Imiael State BariJc and a receiver was appointed, frenzel Brctliert
Ce, had deposited money in the l)£jaJc hefore it ^^as closed; its claia
for #4250 was allowed as a preferred claim and the receiver appeals.
The record discloses that prior to April 30, 19 31, Frenzei
Bros. Co., which will hereafter be referred to as the claimant,
had several cheeking aeeounts with the Iffimel State £anJc, one of
which wae in excess of $5,000, and on April 30, 1931, Joseph
frenzei of claimaDt company went to the bank to get #5,000 for the
punaose of deuo siting the money with the Gomraissioner of Public
Works of Chicago, on a bid. The draft teller of the bank suggested
that Frenzei take a cashier's Ciieek for the amount. Claimant then
drew its ciiaek and obtained a casJiier's check for ^5,000, payable
to the GoKiBiaaioner of Public Works, and the aoount was ciaarged
against claimant's account* Apparently the cashier's chf>ok was
deposited with the Oommissioner of Putlic Works of the City, but
the City hold up the bids and the check, and while It was bning so
held the bonk, on July 2nd, was closed by the Auditor of Public
Accounts. Th.' check had not, in the meantime, been paid because
d£V6€
(
88 5 .A.I
G
8^
1 * Ti»«: •j)-xr<w
II "to
,ay
,JaMA€ £TAte JgMMl
4 YTtOi-rlaflv'U
I0 n©vx«o«>i B# ,
»«v
..i MaIJJIW
ti»ii&ot^ l8sau%^'4 ,)^«i,tnxoarrJ! e«w rs»v'ls»dv a bsia 3Cxi«d d^i^;t'(£ Xeaorl 9At
,aX«#ocfj8 itdvieo'iT. arfJ hau ailaXo fc«TS9't*T^ « a« brnwallti a«w oaSJ^ ^el
, _i, ^ b©ii»'t©i sd 7a^'i«»«9ri IXiw sioiiiff ,.08 .ootS
lo i>no ,*r; 'I ^.tr?*8 Xemml 9iit d;tlw atoaoooA ?5iKiiio»«la X«tc»v»» feiiixi
xfqsBOt ,_ ,<?^. XiiGEA no fttf ,000,«| I0 «««a«» Ri eaw xloirfw
iMi^ 10** 000, 8<J *s,. _^ ^-fied »f{J o>.* drttw x'^'in^oo imisiiislo I0 jr»sn»Tl
oXXrfi/M. 'to isnoieaiB'Me'J ail* Ji*xw Acettoffl an* galti«««»l> 'to »Q0<3Tt»*
i^«8eaa<Je *«^<*' •^^ **» laXIs* *'tfiife sxiT .bid u no .o^aolrfO 'to aiitW
oofU *n«inx«XO »^ni;ooe erlcr 10't 2io»/i© a'loiri**© « o::!** X«sh91* ^erfJ-
• X'iisx;A<7 ,000,5^ 10't Jlo^rto i!*-iaXil««« « fc»iali&*ri« i^a« *Mxto »*i w»nl)
AdS''^^'^ ««^ ^m/oiae sn* ftiWi .aMioW oiXcf«r^ lo rte n©l sBi«JB»0 »xi* ©*
•AW io-ilo e'leliieAu »rJJ xi-i^^'^i*-*^*?* .^Ttxuoooa fi'iru»«i«Xo Jeaxjaa*
;f^- , " - •' - "-^v -jtido<i to tenoitieXMmeO aiU" Ailff fer>*Xaoq»l)
OS a.:-: rj*<v ,j. ,,., ,iO»xfo «fW / «« •bid »fi* qjw ^Xpii X-tllJ sxlif
j)lIcJw*L to lo^lfcu*^ ii^ x^cJ fe990Xo »jcw .fifiS iXw^ ac .aineef ©rf^ Mod
^3, .i.o<| .^■^Utuv^ «il* flX ,^on bail itoar.f) ■ '^^- .''imic^oA
8
It had not b«en presented to the hank, l-iovember 27, 19K1, the
elalmcunt compaay Tiled a general olalm for the amount of the check
Vhioh was allotred, and ufterward a 15;a dividend was paid. July 24,
1935, claiUicint filed its petition praying that its claim he al-
lowed as a preferred claia. The receiver filed ai artswer contest-
ing claiiaaut'e ri^it, and after hearing an order was entered allow-
ing the claiBi as a preferred claisi, and the receiver appeals.
In hi 8 brief eounsel for claimant says, ''Claimant claims
it is entitled to a preference under tne Act of July 8, 1931; that
the Act ia remedial and that filing with tne Receiver was a suffi-
cient oompliance with the 'presented for payment' provision," And
in support of this contention eoiuisel cites par, ??, sec. 13, chap.
16a, Illinois State Bar Stats. 1935; McQ.ueen v. Bandallp 353 111.
231; People ex, rsly Nelson v« Dennhardt. 354 111. 450, In each of
the two cases just cited certain contentions were made t: at the
Act (or certain parts of it) was unconstitutional, but the oonten-
tioDs were overruled and the Aet upheld. The order appealed from
in the instant case was entered August 1, 1935, and the court ap-
parently followed the ruling announced hy the Supreme court in the
two cases eited. But afterward the Supreme court, on December 19,
1935, held that the Act, in its entirety, was unconstitutional.
People V. Union Bank & Trust Co. . 362 111, 164. In that case con-
stitutional questions wei* raised wiiich were not involved in the
kcau^een and Dennhardl^ cases.
Since claimant bases its riglit to a preferred claim on the
provisions of the Act wViich has ceen declared unconstitutional, the
order appealed froai must be reversed,
Claimant ie entitled to have its claim allowed only as a
general creditor. People ex rel. Kelson v. Builfjers A Merchants
Bank, 264 ill. App. 3B8; People ex rel> kelson v. Lincoln Trust &
Savings Bank. 279 111. Apn. 13. ~~~
The order of the rjuperior court of Cock couifty is reversed,
ORHBH REVBHiJED.
llcSurely, P. J., and Matotiett, J., concur.
•X* iHf ni£Xo set! :tj&.ijr ;j>iii^i}^ aoiiii»q aii b^lj^X iaa^lala ,a€€i
-I'ftys e as^ lavisodH %sii liiiw ^jctiii'l i«ri.t bets Laib^aBi si .toA »il*
,XII <5o .V H.g^jt;.^jS)l£ •§«tt't .«^ai« wnS »;fje*e •jiowXXXI ,«eX
i.o does al . , frfill .^};|>i^imii»^,, .y floaX^/I .^.X.a^'T.x^ is£ge»^ ; X€2
H9fl fe?»Xai»(|(ris tsfc-i* eii'T ."-Xatit?* tfoA »fa- tiie bffXijiireva •taw aaoXJ^
-q» #Tcoo ^tiA Brae ,ec . ^ ;;ji/j^it Aiet^d^iK- aaw #«iio ias^aui orfc}- r,X
oi{# ai iJiiiGu aM»iccfWfi »il4 td Aftoitwiwwus ajaXXu-x 9sii hefroLXot Y;X^«e«*Cf
, ^?I i»cfe»969<I no jJ'aiJco ©fiajcxiitfia »/:« ^'llei'r£«. J'l^ tiM. .l>a*X» a9««c oir*
.Xl"«oi^iiti:rBarora. i^«v^ .^d^anXo , *©A «ii* ^iul^ ^X»£i ,S£€X
•4St "- ■• - - - --■ - Tw w ib«»X«tr rt»w ■floJt*«^;i.-r X^rioltir^itfa
miit nc ciii»X" -■vt . rr-^i/ «,-• r mfr-p.ati timssl^ ... . ,. _
m s-9 V. oXXij ioittXo B^ ^' bsloiiu^ ax
99^9r»-
.twortofe , .'. .j-l^a/to^AM ifft .. .i/jLo X
38106
ROBERT BRUHER, BERHARD HARRISOH, JOHH
!!• REEDEP., OHARLKS M, BRAUK, ANDREW
LINSEAR, MIKE PARENTI and ALBEi=lT l)YKA3,
individually and as represent ??tive a of
the memDera of POULTRY DRES3ERS UNION
or OHIGAUO, LOCAL number 158,
Appellant 8 »
THOMAS J. OOU?«PNI;Y, State "a Attorney of
Oook County, JAMES Pi. ALLMAN, Comaissioner
of Police of the City of Chicago, DAWIEL
GILBERT, Captain of Police of the City
of Chicago, PATRICK J. COLLINS, Captain of
Police of the City of Chicago,
Appellees* O
SUPERIOR COURT
COOK COUNTY.
I.A. 5 84'
MR« PRESIDING JUSTICE HALL DELIVERED THE OPINION OF THE COURT,
On Jsinuary 14th, 1935, complainants filed their bill in
the Superior Court of Cook County, in which it is charged, among
other things, that they are members of a certain labor union, and
that such union is an association of skilled workers, engaged in
the killing and dressing of certain animals for market; that in
the month of October, 1934, and at intervals up to December, 13€h,
1934, the members of this union had a controverpy with their employ-
ers concerning wages, and that the members of such union, not having
eooM to an agreement with such employers regarding the rate of wages
to be paid, on December 13th, 1934, voted to strike, and that there-
after the members of the union did not report to work at the place
of business of their respective employers, and that from such last
mentioned date up to the time of the filing of the bill, the strike
had remained in progress; that the strike had been conducted in a
lawful and legal manner; that no threats or intimidations had been
made, and no force, violence or coercion used in the progress of
the strike^ that peaceably, and without intimidation, violence,
force or threats, they attempted to inform the T>ublic through various
4
0^
inQ W
TPTTOC-
.TTSTTJOD 3003
1:0 nl
^8e.ii..i e^8S
.^oiloi
ni ijftjji'i^a ,8xsai03? i>©Xi-tai;
iio
JISCfttiSK Off if ^^S8I
dOAlq 9.
lo aaorq^iq miJ ax i>6«i; col 01 =
b6Xioi;r^8&
jx^oaft JO* iUiltirAX
devloeg that they were on a strike, and among other things, had
▼ariotia of the memhers of such union parad,« certain sidenalks with
a banner hearing the motto, "Thia place is unfair to organized
labor. Poultry Dresaera Union 158 of A. M, 0. & B* W« of N, A.,
A« F. of L^w and that only one person bearing such banner appeared
in front of any of the places of business of the employers of any
ef the members of the iinion at any time. It is further alleged
In the bill that these persons had a perfect legal right to do the
aote aforementioned, but that notwithstanding sueh rights, Thomas
J, Courtney, State's Attorney of Cook County, without any warrant
©f law, maliciously and oaprlcioualy ordered the police of the City
of Chioago to Arrest eaoh member of the looal to which these people
belonged, so appearing on the public streets and highways of the
6ity of Chicago; that in pursuance of the orders of the State's
Attorney, Patrick J. Collins, Captain of Police of the City of
Chicago, directed the police officers acting under him to arrest the
members of the so-oalled Local 158, and that in pursuance of such
drdeir of the Chief of Police, various members of the union on the
S9th day of December, 1934, were arrested and taken to the Oes Plalnee
Street Station, and that after a hearing, they were discharged. It
is ftirther alleged that at the hearings of auoh cases, no one appear-
ed against such persona, and that no proof or evidence of any kind
was offered by the state. It is further charged in the bill that
at the hearing of such cases. Captain Patrick J» Collins, in command
of the Des Plaines Street District, stated that he had been ordered
by the State's Attorney "to arrest all pickets, and to continue
arresting them as often as they appeared on the streets," and that
these ordera came frca Daniel Gilbert, a police captain assigned
to the office of Thomas J. Courtney, State's Attorney, and chief
investiggtor for the said Thomas J, Courtney, State's Attorney. The
hearing was had on the bill and affid'^.vits attached. The prayer
I
Yflc to BX9xoL<.m9 srftf to sutiXJtSifd to se©.'<iq eriJ to -^ji^ to taoit at
XfiA iuoitint ^'i&aisoZ- JtooC J:o x9iixo??A 8*9ip.rf^8 tX^Jn^Tc^fo^ "^
X#-iO ©£fjf lo dOiXo<T erii bBx^bto YJ^suoioiTqso £tfus \,Xex70lolX«a ,irAX to
alqfosq 8e«tfi- doi*!T oi Xsoo -ra^cj iie«9 ^«dxTS~ o* ogfiOjfriO lo
9rf* to BXP'^t^'gi!^' ftft- B^t^ST^a aiXcfisic! ftilif no 'gait.'^^q^js 09 ,&»3JBoi9cf
• ♦ed-R^e 9tit to 8X®&ii,> ajp;}- 1© a^a^enit^ til t*^ti:} ;«3J50iifC to \*i0
to x#iC »d* tc ftOiXo^f to cjte^qsO tafljEXXoT; .1, iolttB^ ^y^nTO&iii
9tii J89TTJP o^ ffiiti rt«fefl0 §ni3-06 8'r«!>r5-to »oiXoq Bdi b9ft>i^ih t-ygsoirfO
iJor;© to ^onfufmnsq at i&df bap ^BE£ li^oou fc«ijL«f>~OB sjdfif to «i-r*difil>t!
Btit no lYoiffu t'->nt "re e-te-cfsssv; ^j/oi , >1X«*! to t^iifO &Jf^ to TSt-io
ci^It saO erf* . .- , ,, -Klmf'^^Cl to v-i: rftSS
^rfti-r<T5 «M10 Ofi t8:MV/0 ffC-' tiftrf* l»»^li« T9Xff7jyt «i
ifljB, . . o li. «raiii. , , iJoj3e to ^ir&ttd tiii te
btneb'so nescf fccrf 9xf ;^^.lfi■ Jifg#«*8 ^foiT^^K? #991*?? eSiiisil 890 «if3' to
9tiatiPoi> ot ban ^^t9:^.o. o:*^" ^»flito^3-f'. fi*»^«d^B ftrf* X<^
fi» iMB *^Bi99rta 9il& no Jb«TJB.9crq6 x^iit e.'^- rtstto a^, «Dd;t gci^BSMtt:*
MiTjigei^ niRjqap ftoiXoq jf? ^tt^dllO XtiiiBC aicTt »s.f:o BtsJbro 9B»if
teirfrt fcfl* ,^»flto;t^A B*•n^is#P tif»rf*Tu©0 ,1. seasoifT to oaJtto odi ef
Bdt •x^fl'O**^ «»9»«#£ ^x^ti'irtK' , . JorfT i:i:<« ^rfjf Tot lOlaal^eoTfll
r^xrz-, &i}T •X)o/to«4^t£ •liT/iX)ittA £)n>.t JLliti 9dt flo iusil e«« T^tr&Bd
s
of tbe bill ia that "a temporary injunction issue, without bond,
whioh upon a final hearing may be made permanent, restraining said
defendants, and eaoh of them, their deputies, subordinate police
officers and patrolmen, and their agents and attorneys, from molest-
ing, arresting, interfering with and preventing the plaintiffs, and
eaoh of them, frcMa peaceably and without threats or intimidation
being upon any public street or thoroughfare in the City of Ohioago,
adjaoeat to or In front of any place of business of any person with
whom they are engaged in a labor dispute, and fr(»Bi carrying a
banner bearing the legend: "This place is unfair to organized labor
Foultsy Dressers Union 158 of A.M*0, & B. W. of H« A., A.f, of L«<*
Various affldaTlta are appended to the bill, and they con-
tain substantially the same averments as are made in the bill itself.
On January 16th, 1935, upon notice to the defendants, the
eourt entered an order to the effect that "Thomas J» Courtney,
State* s Attorney of Cook County, James P. Allman, Commissioner of
Polloe of the City of Chioago, Ogjilel Gilbert, Captain of Police of
the City of Chicago, Patrick J, Collins, Captain of Polloe of the
Olty of Chicago, and eaoh of them, their deputies, subordinate police
officers and patrolmen, their attorneys and agents do absolutely
desist and refrain from molesting, arresting and interfering with
and prc-rentlng the plaintiffs in this suit, and each of them, from
peaceably, and without threats or intimidation, being upon any
public street or thcroog^fare or highway in the City of Chicago,
adjacent to, or in front of any place of business of any person with
whoa they are engaged in a labor dispute, and froa carrying a banner
bearing the legend: *This place is unfair to organized labor.
Poultry Dressers Union 158 of A.M. 0« & B.W, of N. A., A.F.I.,*,
proTlded, however, that only one such person or picket shall display
such banner at the sr-me time before such place of business, and
provided, further, that said person or picket is violating no law
t
-*a3loa! mefM ^&^&Rtc^t» bam ri^av^^M "fiarf* bam ^nt^lor-iMi £»,!*, BTawifi-o
aoi*B£)iiBiir!i tc a*jB9tri* itmrid-l^ Jfra^flf "^irfsco^©^ wo lit tR^ri* ito tfo»«
f » . . » ., .... . i,if?T »ic€»a8»tC t«^I«>^
-nao y»rf:f fen?,- ,llifj ari* o? &8dbit®qos a-rs «i^iv.sfex*3:ljs fttP©iTJsT
f^X^atiui . '■'/!# tn'^iti^ tuft o* T«l>"fe f/^ .b«5^«iitrt9 jfrcwoo
9jf* to 9o£Le>'l tQ alsi^sQ ,8fifJiII©0 ,1, ^Loirt^'i ,osnoiiS[0 to Y^iO »if#
0 »#.9rrl;JbTC>ox;a tftOltfWBrftf) tci^arf* %r*0rf* to ifteAs JEjaa tO^vSOiiJC to x^^^
/i*iw gnlTntT6#ni ftrte ::?fT.f*sTf?rr.?! ^i^ifl^BeXOw moTl: niiwtfln: l)a« tties^
fflo^l tfflftri* ■^■•> £f©.«if« £>«.<■ , eitfd' fli tfttldTi; J- i^i^tterwor JbflB
Twnr. : .--••,"1 • ,••.•.- ^T:ti-. :. ;-f. Torf'--i « (t;1 fte^^ejci:. ., ■^9ri# aothr
('.4. . ^. . , . , ► . oi,... .>■ iitTJ Pi:« . ,. ^.'itltro*!
• ''^ •♦'•-■' irto *>sri;> ^■. •■■•.:.-..■; j5©£)iToiq
j.?nJ' t^*" -'i.1 -"■>•' I. ' >J -ail' i' i.i.vi;w K)j.\.ii. ■" <j ' j^^iW^U uOX/8
4
of the State of Illinois, or any ordinanoe of the Oity of Chioago,
until the further order of the oourte* This order was issued
without bond*
Although V\e record does iiot show that an answer was filed
"by the defendants, «or that the cause was referred to a master in
chancery, the court on January 18th, 1935, entered an order to the
effect that a reference theretofore made, toe vacated, that leave
be given to the defendants to withdraw their answer, and that a
motion to vacate the order for temporary injunction theretofore
entered, be set down for a hearing <Ma January 19th, 1935, On
was
January 19th, 1935, after a hearing/ had apparently on the bill and
affidavits alone, the court entered an order to the effect that the
temporary injunction theretofore granted, be set aside and vacated,
and the bill dismissed for want of equity. It is from this last
order that the appeal herein la tai:en#
There is no showing that Captain Patrick J. Oollins, or
anyone in authority, had indicated by act or deed that he or they
Intended to act upon the alleged orders of the State's Attorney, and
It is shown that all the persons arrested had been discharged after
a hearing by the court, and before the bill was filed. If these
people were illegally arrested, it is possible that they might have
an action at law against the persons causing such illegal arrest,
but there is nothing in the bill n^ich indicates their right to an
ordey for an injunction against these defendants for acts already
committed. There is not the slightest suggestion that any of the
defendants had indicated by any act or word that further arrests
were intended, other tnan the language charged to have been used
by Oaptain Patrick J. Oollins in the court ro(»i, where he is alleged
to have stated that he had tteen directed by the State's Attorney
to arrest all pickets, and to continue arresting them as often as
they appeared on the streets. It is further to be noted that there
•Ixrtotf i^sroiftJhr
*5r^9X ^J-jailii ,i>effi!o«v 'i?ci t^J^-i^** Shcolo^ilieiftJf eaxifs^l®^ & t&dit *08tl!a
3Tolo*»teili ri<jlif&i5iftfli iptstica'^a* ^ol ttslnro eitf* «;J-.G«.sr tj^^ noi#iUB
Jba« XXlrf 3fy- jbo ■^Xtn'STJRQCTs fejB«{ \;piJt^Raif a xsj^tp. ,£58i ,iJd-tX •^«J301W?I»
-Tfft •&f^t t09-t^» arid o* la^ic iss fedx^#«>? tTu,tf>o «i:r* \6f»X« attrKbtVis
, fine 9fci».R #©e ad" ^fesju^ig STcoloJ-^ntad;^ uoltfsay^ni XTf^^^tJJK^**
*asX 8£ri* «oxl: si *J. ^xtiisp^ 1q t&sr^ r^ fe«>e3ifi»»iJt XXlcf Bdt Jb-n.A
:£»*?: n iJo^TRjcfoaii) /!*»acf ^"ff I^^sfaftf tjB 8«©ei^«^ mit IX^ #/s^# asforfa ti tJt
•▼#!ri ^riJ^ltoJ -piM tiiiij - «&«*»®ict» tXXJE- t^w «Xqo»q
^ifissxTi X a® 9 ill daw a ^.fiXajyso Rfft5??r'^'r ©/ft ^Rftfts* wfiX .^« fioJttoj* aa
fl/< o# ta-gli tl&ai Si^&39i!Qal siQiiy ^ :]flifJ;Jon xii tud
!;«et; ii^*«f/ oviiif o* Jbcr^t^iio s»a«v^aajjX ©ii»t aatjt t«ii#o ^/5»aa9d-ai e^«w
^«r!»XX« ai •A •inti-^ <jBo©T;fi:ifat? «rf^ ai »«XIXoO *t i^itJ^S. i«2«*<j«0 .x<^
i
is no ahowlng made tliat ^fter their discharge the defendants had any
reason to fear that heoauee of aiiy act or threat of any defendant,
fxirther arrests would be made.
In Lowenthal v, New Muslo Hall Oo*. 100 111, App, 374, this
eourt said:
«It is said by our Supreme Oourt, in Menard v. Hood.
68 111* 131: 'In our practice the writ of injunction is
only called into use to afford preventive relief. It is
never employed to give affinaatlve relief, or to oorreot
wrongs and injuries already perpetrated, or to restore
parties to rights of which they have been depPlT«d*'
And this doctrine was approved in Baxter /» Board of
'l^yade. 85 111. 146, ^jCjrhere it was charged that a person
had been Illegally deprived of his membership in the Chicago
Bo??jrd of TradeXJ where it is said; 'If a party has been
excluded from the rights and privileges of a corporation
by the action of the corporation, he ought not to be restor-
ed until it has been determined that the sot of expulsion by
the corporation was illegal; and yet, if the remedy was by
injunction, as is claimed here, the effect would be to re-
store the party in the first instance, evan though he may have
been lega-lly expelled, and leave the determination of the
legality of the act to be determined in the future. We do
not understand resort can be had to the syrit of injunction,
cither directly or indirectly, to obtain affirmative relief. »
^^ Wangelin v# (^oe, 50 111, 463, it was held: An injunc-
tion is a preventive remedy. It comes between the complainant
and the injury he fears or seeks to avoid. If the injixry
be already done, the writ can have no operation, for it can not
be applied correctively so as to remove it. fhat was held in
a case where the owner of a mill, claiming to have been
forcibly and illegally put out of possession, filed a bill for
an ijijunction to restrain the defendants from interfering with
his resuming possession, as is here done. 'The deed was done,
and there remained nothing on which the writ of injunction
could operate.' The case of Fisher v. Board of Trade. 80 111,
85, is to the same effect, and what is there said in relation
to the relief claimed because of irreparable injury resulting
from loss of profits is applicable here. Other cases to the
same effect: LaJce Shore & M« S. Hy. pp. v. favlor. 134 lU. 603;
Oofflaisgioners of Highways v. Deboe, 43 111, 'App, 25; World' s
Oolumbian Sxposition v. Brennan. 51 111. App, 138; Mead v,
Oleland. 63 111. App. 394; qpff v, Sotert. 65 111. App, 616, «•
See also i^enard v. Hood. 68 111, 121,
The deoree of the Superior Oourt is affirmed,
AFFIRMED,
HKBEL, J, AH0 DEHIS E. SULLIVAN, J. OONOUR,
►'.S^ ►
• ■•■-^4. w-
»
38130
JS33E W. RITTKH, ) APPEAL
Appall ee^
GlROpHf OOI^gL^'
OITT OF CHICAGO, a Uunioipal
Corporation, ) COOK OODHTY,
Appellant*
285I.A. 58#
MR. PRESIDINCJ JUSTICE HALL DELIVERED THE OPINION OF THl COURT.
Thia is an appeal froia a ;)udgmeQt of the Clrouit Court of
Cook County against defendant for the sua of |6,000«00, entered in
a suit brought by plaintiff against the defendant upon a charge
that plaintiff was injured through defendant's negligence. Trial
was had before a jury, which returned a verdiet for the amount of
the judgment*
The charge in the declaration filed in the cause is sub-
stantially, that defendant, a municipal corporation, waa, on the 10th
day of June, 1929, possessed of and had superricion over a certain
public street, known as Clark Street, at or near its intersection
with a certain other public street, known as Lincoln Street, in the
City of Chicago, county of Cook, and state of Illinois, and that the
defendant ima bound to use reasonable care to keep end maintain the
street in a reasonably s-^fe condition for trarel; that, disregarding
its duty in that behalf, defendant negligently suffered the street
at the place raentioned to be, and continue to be^ in an iinsafe and
dangerous condition for travel, because of certain holes and
depressions in the street, and that the same had existed for a suffic-
ient length of tiae for the defendant to know, or by the exercise of
ordinary care, to ascertain such condition. It is alleged that plain-
tiff, while riding in a taxioab upon Clark Street, at or near its
intersection of Lincoln Street, was unavoidably thrown about in the
cab, by reason of the oab's coming in contact with the holes in the
a»»Xl9«iqA
OCitt
,JSUO0 fXUOJ^IO J ,▼
^^'S/'a.I S8S
♦ Tf.r :OITIiUt OKI .BM
Lei; . , .. 'f '^flpim^laii ikanj'OTL^i toiuli ii^taisXq ^srf*
tc ittwoBs ^bi TOt ^oifi'Sf^T .ft J^flTtft;^^ rioidw ,X*Si/t * fi:cot*€f bad. Sisif
'le*T©o ^ tevo aoiVLlTn&ii: iQ IWNBR»«eo t «sifwl. to XBb
•^fiii'i'^^h'T ^ ;XetvcT;f l^lfiiaotfteTr ir at tnBttz
?jl* i>0ar*lli/«; xXta«r^lI-$9a $ttt ■ ^llstiBtS isdi at t^i/l) nil
, vf/fii; #jeiot ^ '^'ioiJ^fl9Jf! ©Oi«X<? ©tl* *«
jXoif Bi ■• -n,' f}0 f!."- '..'te^OAJb
©illt/a s Tol JboJBix* l)Sr tftrf;t hats ,^ftdt*8 s ^«A
©aXo'TQxa SKli yd to ,wofl;rf ocl- tfo^itfi^lafc 9ri* ao^ 8; ; ;^$ii9X *««!
Ai&Xq i'sill Jbd^^Xi ue nt,^ii'c^asj:f oi ^Qie-o x^aalbtQ
9ti ir-9C 10 *ei ,*«on; j'j8oXx3# « ni sjxibli aXXrIw ,111*
•at at &ijodR nvoisit x-t«f^^^ t#e flXooniJ 1o flol^oaeiei-al
8i(^ at «9Xoif ©rii- rf.fXw tfor.^floo at s«iiaoo e'cfeo arf* lo aov.e9t ^cf ^cfjso
1
street, and that as a result, plaintiff was seriously injured. It
is alleged that prior to the filing of the praecipe in the cause,
and on November 7th, 1939, the plaintiff caused the following notice
to "be served upon the defendant:
"To: The City of Ghioago, a municipal corporation,
William D, Saltiel, City Attorney, and
Patrick Sheridan Smith, City Olerk*
Gentlemen i
Tou and each of you are hereby notified that our client,
9r« Jesse Vh Ritter, was injured on the lOtb day of June,
1939, at the hour of about 8:30 o'oloclc A. M., when, while
riding in a taxioab of the Yellow Cab Company, a corporation,
upon and along North Clark Street, in the City of Chicago,
at or near the intersection of Lincoln Street with said Olark
Street, said taxicab was caused to and did, run into a certain
hole in the street, thereby seriously injuring the said Dr.
Jesse W. Ritter,
or. Ritter was taken home and treated by Dr. 0, W. K.
Brl^s, whose address is 1524 Thorndale Avenue, and there-
after as the injuries by him received became more severe.
Dr. Flitter was treated by Dr. Howard R. Chislett, whose address
la 4721 Greenwood Avenue*
At the time of the injuries in question Dr. Ritter
resided at 3329^ Commonwealth Avenue, in the City of Chicago,
where he still resides,
(Signed by Olark and Olark, attorneys for Dr. Jesse W.
Ritter. Kotioe served November 7, 1939.;»
Plaintiff testified in substance that he is a dentist, and
that his office is located at 16 Horth Wabash Avenue; that he lives
at 3329|- Commonwealth Avenue; that on June 10th, 1939, at about
8:30 o'clock in the morning, he took a Yellow cab, instructing the
driver to take him to 16 North Wabash Avenue; thst the driver went
to Belden Avenue, and then east to Lincoln Park 'est, and that he
was taken directly into Olark Street; that suddenly he had a terrible
jolt; thsut his head struck the dome light in the top of the cab, and
that after this, he was groggy and suffered a good deal of pain in
his head, neck, shoulders and back; that there was a numbness in
his feet and toes; that there was pain in the lower part of his
stomach, and that he was bruised in the lower abdominal region; that
■ '. "^iV c ■ '^ .S malum
#©£«»▼«, jaoownaai'y iSV* si
2fTJ
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fli
.:s ♦^^
.0 .Ti
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RSi'ff;Ji'
*■ '>?•;
,iiSt*7
is^ lUtd-a m .'
rr^ QesilGJSf/rr
id lo #TJWj
'4.;ijWu- .;»/..>'/
. . ..oino aid: tsisii
'o 05:8
. .... ..^. ^_„^r ^'■^-■'■.b tflL^o r.r-*
" - , • '* - ** ! tAAi
:ir(^ }>■'■■■»' =nrK; J ^ftrf* ;«5»o;f basf *»9l aiif
s
he was afterwards operated for hernia; that slnoe the accident, he
has an impairment of hearing in his left ear; that he misses things
in talking over the telephone; that the condition of his ear prior
to the accident was perfect; that his prior earnings were someiaitng
in the neighborhood of |lflOO«00 per month. On cross-examination,
plaintiff testified that in 1908 he had an operation for appendeo-
tOffiy# It was stipulated that plaintiff was paid |1, 000,00 Toy the
Tellow Gab Gompany, and that he entered into an agreement with that
company not to sue*
7he defendant offered no testimony as to the condition of
the street, nor as to the accident in question. It is claimed hy
defendant, however, that certain physical conditions of plaintiff,
claimed to hare resulted from the accident, had existed prior thereto^
tt.M that there is no causal connection between such condition and
the accident. It is also claimed that plaintiff failed to serve
notiee upon the defendant of the time and plaoe of the accident,
as required by law.
Upon the question as to the extent of plaintiff's injuries,
Br» Clement W, Briggs, a witness for plaintiff, testified in sub-
stance that he was a phjpsician and surgeon; that he examined the
plaintiff on June 10th, 1929, and made a complete physical examina-
tion; that ha found a contusion on the head with the beginning
formation of a hematoma, which means a blood tumor, the aoctimtQ-ation
©f blood over the scalp; that he found evidenoe of marked rigidity,
inability to move the head and cervical vertebra; that there was
evidenoe of tension, pain, involvement of the intercostal nerve on
the right aide of the chest, discoloration, and swelling in the lower
abdominal zone; that he found an inguinal hernia, which means rupture;
that he ordered ice bags to the head and heat to the lower abdominal
xoae; that he treated the plaintiff for about two months; that he
f
loj.r- . . ' a.. .;^fioo a/{J 3-.fd* jOfforiqtXs'* erf* i:»v» jaJtils;?' uri
tio2tsfiJUuorf»-aBetc;? nO •zJfd'itOBi tsc 00»^OX,I$ 'i© fcoorfrodiisl^fi 3rt;f at
•due o^ toa xn^Mie
e— _.r-x« 9ti iaAi ia&9^%i-T bn.i sf.ivi^x.'c coasts
.,;_.._:.- XjTOlBXC^q »ifoXqflio© f* iytP.L^. biifi ,eSt€X »rf*OX »atr^ no J:\t&El&Lq_
jialitntii^^d ©r/J a'*xi» ft*;... .- -.- iuiaiXiT/iOD .,«; J^jCL.fCt '^.^ Jf'ij;^ jaoXif
'tlbigi-r bca'TBia lo ooixai'ire J^«tM>S «i- . - -qX^og »cf?f •JiJVo booXrf to
..., .„...«^ ■ teotJTftJtei oji'* lo ti:eHit«'7lovf(X ,rtl«q »nol«cr9J- Ic •OiisfclTS
.1 'jniU9^9 boA ,floit»a«Xc«>»dU5 4*«»f '■■ '^"-^ to 9biB M:^lr tit
ij8rti«ofttf« t&'»oX 9rit o;^ *.Berf bun l?ij*ri ^rl* * ~ "^ »ol fcaxafcic 9d *Arf*
erf ifd* jerfJnoja owt *v«tfa aol tlJtJKiJs.' .+ ^4 a-j -» ^+ -^nos
4
adTlsed him to wftsr a truss, or be operated on for hernia; that one
Dr. OhisXctt operated on the plaintiff; that the witness was
familiar with the fair and reasonable charge for Dr. Ohisslett'a
serTioes, which would be from #150*00 to $200.00* This witness
further testified to the effeot that on examining plaintiff ebout
a month prior to the trial, he found that the hernia was perfectly
clear and healed, and that the sear tissues had perfectly covered
the aperture, and that so far as his examination, revealed that
plaintiff had no hernia prior to the accident. This latter state-
BAnt was brought out by a question propounded by defendant's counsel,
Fred M* Miller, a physician produced by defendant, testi-
fied that he had specialized in traumatic surgery si»oe 1933, and
that about August 14th, 1929, he ezsuained the plaintiff at the
Chicago Memorial Hospital at 33rd and Lake Park Avenue; that at that
time a Dr. Ohislett was operating on the plaintiff for inguinal
hernia, left side, and that at that time, there was a protrusion
about the size of a large egg* Doctor Miller testified that in his
©pinion, the hernia was of long standing, probably a year's duration,
because of the length of the sae, the peritoneum, on account of the
thlekness of the sao, and the adhesions about the sac. Dr. Miller
further testified that "hernias are never brought about suddenly in
the inguinal region"*
Dr. Frank 3ohrem, another physician produced by defendant,
testified that he examined the plaintiff the latter p^rt of J\ine,
1929, and that he found no evidence of external injury; that at
that time the plaintiff told the witness that he had been riding in
a Yellow cab on Clark street; that the plaintiff told the witness
at the time of the examination that the hernia condition was of 15
years standing; that he found a reducible inguinal hernia about the
alse of a good sixed hen»a egg, and thst it vbb easily reducible;
that in the ooinion of the witness, the hernia predated the time of
♦
Uenxroo a'tnB6a3lsJb yd" ijftJaxusfoqo^q aoi*wt»p js "^d tsso tA'swotti e^w *«»«
9d;f *,e "tli*«ijBi rniifti£5:« 9.1 »ecex ^dii>l iTe^/B^A *Ki©cfA t«ii^
fjBxif rlqeoi^ XPiitoaseV; oa«oXdO
,jr««*ix»*»6 vd £so»ifJw)Ta n.«i9X»"^da x»dtQas ^mmAo^ Amr
.: to auw «oi*.'"fcno'5 Pin??*.' ioi*<>fliw,'Mra ofl* IfeO Alli# ftiJ* *«
•xl* *i;ocffl air iftxtttife 3iiJ»t
5
the alleged Injury. He stated that he made the examination for the
Aaployers Life Insurance Corporation*
A witness produced by plaintiff testified to the effect
that he wae familiar with the condition of the pavement in the
neighborhood of 1830 North Olark Street, opposite the entrance to
in
a hotel at that point; that there was an opening/the stteet at this
point; that the surface had not been put on, and that there was no
concrete on it> it was an open hole filled with loose gravel and
rook; that the cut in the street which he described was from ^ to
5 feet wide; that that was the condition in November. This witness
testified that the hole described was from 60 to 70 feet from the
intersection of Lincoln Avenue and Clark Street*
The driver of the cab in question testified that in J\ine,
1939, he was employed by the Yellow Cab Company; that on June 10th,
1929, at about 8:15 in the morning, plaintiff became a passenger in
his cab; that going south on Clark Street they came to the front
of the Lincoln Hotel, which is at the intersection of Lincoln svenue.
Wells and Clark street; that there were mud puddles there, and what
appeared- to be a mud puddle, proved to be a hole in the street; that
the front end of the cab dropped down on the right side into this
hole; that the chasis of the car i;rent all the way down to the axle
and bounced up again. This witness testified that he looked back
and the doctor was on the floorboard; that the witness got up and
went around to the back and helped Dr. Hitter up. He was half
conscious, couldn't talk for a few minutes, was in a kind of a darej
that Dr# Ritter was not able to walk straight when the witness got
him back to his home, he seemed limp, and he had to help him upstairs;
that at the time of the accident, he was not traveling o^er 20 miles
an hour, because traffic ahead of himj. that the depression referred
to was filled with half mud and water.
Plaintiff offered in evidence the original of the notice
X3EX I
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"A9W
J.Xf 6i1o .3.^ irwoi- Y.^w tii& Xii? *ia9"3? ISO 3ii;f -o ^.tu^iio 9x1* tf^itrt- ;oXoil
JoKof bdltooX eri *^^ Jbomtao:^ eeext^iv- bWT .aia^G ';>..' t-^oawocf bae
^X*u? . . xu i^eql . .K/o'i;^ #«•»
♦<2»* '-MBJ tlRA Aitm b9iLi\ 8.0W o*
i
set forth in the declaration, which it ia alleged, was served upon
the defendant, and that in addition to the portion pleaded, it
oontaina the following:
"Received a copy of the above notice thie 7th day of
Hoveaber, 1929*
William 0. Saltiel, by H. &•
City Attorney
Patrick Sheridan Smith
City Clerk"
As stated, defendant contends that the required statutory
notice was not served on the city of Chicago. The receipt on the
bottom of the original notice recSived in evidence indicates that
the notice was served on the City Attorney and oa the City Clerk.
Further, in the trial and on the cross— examination of the plaintiff,
the attorney for the defendant asked the plaintiff to describe the
approximate size of the hole into which it was alleged the cab wheels
dropped, causing the alleged injury, to which objection was made by
counsel for plaintiff, and in reply to this objection, counsel for
the city stated: »I have & right to go into that for this reason,
this witness has served notice to the city." Neither in the trial,
nor in the motion for a new trial, was there any question raised as
to whetl^r or not the defendant had been served with the required
notice, and the question is raised for the first time on this appeal.
The oontention is entirely without merit.
Zt is next insisted that there is no proof that the
accident happened in the city of Chicago and the state of Illinois.
Z& the additional abstract filed by the plaintiff, it is shown
that plaintiff testified that "Clark Street is the place where the
accident happened. It is one of the public streets of the city of
Chicago." This testimony of plaintiff is not mentioned in defend-
ant's abstract. The court will take judicial notice of the f?ct
that the City of Chicago is in the County of Cook, and state of
Illinois.
Defendant's counsel insist that there is a variance be-
M
lo XfUb £ft? nidi aoi^Ton avocfjB ari^ 1o jpoo « i«JTi©©«ig"
^ . — ^ - - . soi^efliiaaE^-iiseo'xo ©jf# ao fcan X-eixl- arf^ at ^if^titXMfi
. <,..^-.. , HO I tost do «i:^^- ■'" ">:lq9t aJ. 2)iasi ^Vtitut^Iq lot Xoi^m»»o
, ...;^. 'ss 8XiS:f lol ;f£!iij etal -.,.. ififsi:* i^ sv^ I* :^9iAtt, x^Xo 8rf#
iT;^ 9iit flX ^94i*X«m ".'t*- ""'^ e^ 0©X;*^oK Asrfee «jR£f a«efi:^X« BtAi
,^.. A ._ aejt^r^eifp Yis« arsiic <..-« ^XaXiS" wan • ""~' r-'t-- '- -- " • -on
. ixc- ,) ..v/ii^; i-.* ^X^tX^fr* pX aoit««tf-aca ^ifl|
,•{ :.i ' ■•''■' ■; ■'t.Ais 9i''. n.- 3;^j?i©XrfD 'io !^ti~ " '' ' •" '" ' "ii >._v;.\<i\ j-.(i»i-„ou,f;
;Xo »fii lo Q#©5ijR! DiXonrq $d^ ^o »ar , '. >«acr<?sj:? *««bXooJ
~i>xi3t»i; ai b&S(oL:tn9m tea aX "Hi^-aXsXq t<> \nt-£\i:u'i^ «XilT ".ogiioiriO
;f:v. o atti^oa IeX9X£>irt 9Jt«r.dr iXiw iruQ*^ adT «tt>£a;f«cfjij 8»*«;»
lo ni^ik. £icjt «iooO lo x*^iJ«>5> «if* ai si o;^«oXriO "id ?*X0 edj^ *j?rf*
«tlonXXXI
f
tween the notice served on the oity, and the proof as to the place
of the accident* It will he noted that the notice served tells
that the accident happened at the intersection of Lincoln Street
and Clark Street » and the proof is that it happened at Lincoln Aventui
and Olark Street, in the oify of Chicago, During the trial, no
question was raised aa to the place of the accident. Counsel for
defendant, throughout the trial, as shown by the record, proceeded
upon the theory that the accident happened at or near the inter-
section of Lincoln Avenue and Clark Street, In the city of Chicago*
No question was ralal4 as to this matter either on the motion for
a new trial, or on the motion in arrest of judgment. It is
presented for the first time here.
In Graham v. City of Chicago. 346 111, 638, there was
aa objection made that the plaintiff should not have been allowed
to reoover because there was no proof that plaintiff was ever
attended by the physician named in the notice* There was also no
proof offered by the defendant in that case that this physician
waa not the attending physician, and no objection was raised on
%h9 triiCL on the question, and the oourt said:
"There was no mention made of the objection now raised,
either in the motion for a directed verdict, in the motion
for a new trial, in the motion in arrest of judgment or in
the assignments of error* It is too late for that objection
to be made at this time, Pickett v, Kuohan. 333 111, 138;
Hlc;hway Oomrs. v. City of Bloominaton. 353 id, 164; Tucker v,
punoan. 324 id* 453; Chicago Burlington and Ouinoy Railroad Co.
T« Diokaon, 143 id* 368* <•
We think the contention of counsel for defendant as to the notice,
is entirely without merit*
Objeotion is made by defendant to the giving and refusing
of various instructions* We have carefully examined all the
instructions, both given and refused* We are of the opinion that
the jttjy was fully and fairly instructed^,
3
T
■ ■ :iaBi>iv( ■' i aoqu
sirij o^r ■. .?•'■:. ..: ttwiBap 0%
,&a:«n 9miS tmii »ri* toi be*^n»B9Tq
s>:>.7 Stearic «SC& .1X1 a*5 ,mi.i-^idO 1& •s:»-tO .v lagiia-iP nl
fc^woXXji aftscf ftv.£^ri J©n fcXiroife -iXq »xf.t -r.sB noltde^^o as
oil o&l'. ' -."• ,■■.,-:: 'asifJe
ci3ttilBX^''~i airf* #.»«»# »«JBO <fa£t* rax tii5©n»1:9i) exii* x*^ ix^TSfic lootq,
no b9Blx\ i«jBtF n©i*o0^d<) oa Jbas ,asioifiX^<? gnii'ne.tts srfJ ton axiw
:bijsa ;tiwos) «f!^ basi ^aolts^up odd" no Xeii* tdt
t noi^osjdo ftcft "to »ib.sffi aoitii&in on »,«w oraerfT"
i
TherB appesTB to be some contrariety of opinion as to
whether or not the hernia for which plaintiff was operated, was
a result of the accident in question. The evidence shows that
after plaintiff's operation, this afflioition, even if it resulted
from the accident, was entirely removed^ In view of this fact,
we can arrive at no oth«r conclusion than that the verdict and
Judgment entered thereon, are excessive. The judgment will, there-
fere, be affirmed, upon the condition, however, that plaintiff
remits the sum of $3,000«00 therefr^a« Otherwise, the cause is
reversed and remanded*
JUDGMSMT AFFIRMSD OH REMITTITUR OP |3,000,00,
HEB£L, J, AHO DEHI3 E. SULLI7A1!, J. OONOUH,
-•T9fi*,iljp» !j-ae»?^ut edV »«»Ti»»9©x«> t^* ^iXO»T34^ M^r^i^xi© #fc«aijifc«t
ei 9Bir«o dcttf' 4»»JhJT«if*0 ,«eit»rttii3* 00«OG0t<i<j' !♦> J3ii«9 eri* e^loe'i
38304
THE FIRST NATIONAL BANK OF CHIOAOO,
et altf
Appellees,
T»
apkal frc
oihouit court
AMAKDUS N. AMDER30N and MAMIE E. ) COOK OOUKTY.
AHDERSOK, et al., ) x
appellant.. 5 28 5 I. A. 5 84
MR, PRESIDING JUSTICE HALL DELIVEI^D THE OPINIOK OF THE COURT.
As shown by the notice of appeal filed in the Oiroult Court
of Cook Ooxmty, defendants are appealing from three orders of that
Oourt, entered in a foreclosure proceeding* The first two were
entered on June 27th, 1934, The first of the two, ordered the
second amended answer of Amandus H« Anderson and Mamie 2, Anderson,
his wif* - defendants in the cause - stricken from the files. The
second is a decree of foreclosure. The last of the threp, is an
ord«r approving the master" s report of sale and distribution, and
was entered December 31st, 1934, The alleged error of the Circuit
Court in entering the last two orders, is predicated upon the
alleged ejror in striking the second amended joint answer of the
defendants. Defendants insist that the motion to strike is in the
nature of a demurrer to the bill, and, therefore, admits that all the
facts well pleaded therein are true*
The bill to foreclose filed in this cause alleges the making
of a note for |30, 000,00, payable in gold coin, by defendants, the
giving of a trust deed by them to secure payment of the note, and
certain defaults, which, under ordinary circumstances, would entitle
the plaintiffs to the relief prayed. While the answer filed denies
the allegation in the bill, upon which the action is predicated,
there is no contention ma.de here that the makers had not defaulted
in the payment of the note, and in the covenants contained in the
trust deedi*
4 a©«Xi»<-:iCiA
THUOO Titles 10
9d* Sarrafno ^o^j' S£{* lo i-firtci' '"^ , 1^561 t^^^ QmJfUt flo beio^-ne
efioeT:ef'n->' A siaeM Jbn/; «©arE9ibflA »h gax^njsmA lo fewaa* i>©fcns£;.B fcrrooss
Qiil •salxl »d* aoTcl aeiali^d - 99as9 ftd* iii arf'flfiJbHOlaJb - «>liw ai/1
fl.6 oi t^aitrijT sriif ^o jTasX •rlT .9ii/8oXo©iot lo oMOdfc js si fuxooss
Ijna ^floitirdiiteitJ Iits »ift« lo ^^oqsu B»i»#iusoi »rf* gaivoiqqjB x9tno
Silt aocftf £)«ti?oil>»^q ei <»t:9Mo ow^ ihasX orft gclis^fia ni #t«oO
sil* lo i^vaaB taiQi h«ba9W£ lu»90da »«■(* ■gaMl'^.iB ai Toirfa fiogaiXji
•if* rti ei saiata o* aoitom •*[* *sii* ^aiacX a^fn/siJuslaG »8;tff-&f)fl©l8b
9di Liz ifidi htlakR ^nio\9it>sli ^bsm ^XXirf ^^i otf icsTit/iaaJb & lo azx/^an
•ajn# 0!£« ni»n:9<ftf JE>aMaXq XXvtr atcuit
al:ffl» orf* e&8sXXi5 sei/po airl:f ni fe»Xll ©aoXoaTol o* XXitf ariT
arf* ,e.tachn9lei) x^ ««ioo bXog at •l€Ry[.Bq, ,00.000,0!^^ lol ©tfoxt « lo
fm" »a#on 9rii^ lo *na»Y**<? »Ti/odB o* aari* ycf feasfi taxni- « 1« SHivis
aX#i;^n9 bLuov ^aeoflfA^aauyO'ilo x^Bflii>xo la∋ ^doirfw ,«*Xi;^.l»l:i al«*«eo
»alfl*»Jb fiaXi? Te»wBfl-«; 9tf:f eilrff •fc^xs^^ lalXc*'!: 9tit oi elll^niaXq ari*
^b9i no IbBtc^ ai noitox*. art* rioidw actqu xLLlti «>xl* «i nolti»S»XXfi BsLt
^»*Xwslab *on b/^rf atsa'^ya ^a^i tnAt atotf oi)«B aoi^na^iioo oa ai aiaril^
8rf;f ni b^niniaoo utaennrQo utii ni ba:? ^dioa Bsit lo ta^MSXB^ ^^ a^
s
The amended answer vhioh iras strioken sets forth that
the First National Bank of Chicago, together with the Foreaan Trust
and Savixigs Bank of Ohloago, and divers other banking corporations
and others conspiring together to wrong and injure defendants in
the premises, agreed aaong themselves to create an artificial demand
for gold; that gold is the only commodity from which gold coin can
be manufactured; that said conspirators proceeded to and did by
divers means cause to be created vast quantities of promissory notes,
evidences of indebtedness and other oommeroial paper calling for
the delivery of gold coin of the United States of the then present
standard of weight and fineness; that Iqr virtue of the creation of sue)
vast quantities ef said pr(»sissory notes, evidences of indebtedness
and other commercial paper calling for delivery of gold coin, a
great demand was created therefor, resulting in a scarcity of, and
increasing the price of, said caomodity, to-wit: gold; that said
conspirators fully intended the price of said commodity to increase
to such an extent as to render impossible the performance of said
contracts as evidenced by said promissory notes, evidences of indebt-
edness anS other commercial paper, and as a result thereof, intended
to and have brought this complaint to confiscate the security taken
that
from these defendants;^/ the said indebtedness arose out of a loan of
|20, 000*00 to defendant from the foreman Trust & Savings Bank of
Chicago, who in return executed said notes and trust deed; that said
bank was conducting in the State of Illinois the business of buying,
selling, supplying in trade, gold coin used and in use in the United
States of America, as a necessary commodity for a price; that said
premises were then of a market value of #40,000,00; that said bank
was then a member of a secret conspiracy and agreement with complain-
ant. First National Bank of Chicago, and other banking corporations
and individuals, by which it was agreed that certain restrictions
tBiit rlirot s^ea a9:iolif Mm if«l«v lammm JJillMa tit
a.^o aico fclog xfolifw ttor^ Y^i&osanoo ^Xii© »d* eti I) log ^fsffj^ ;tXo3 lol
iB«#9£c tTEOGaiJsoiq lo s©i;*iS"fl^.tfp t8/'V b9tiz9ro &<i ©t esi/eo Baa»«B »i»vib
^ ioo JbXo^ lo YT®vi-. yxill^o T©a«q IploissiKflM?© tsrito ba&
tUB ,lo x*-^»i«' ::^iJIi* , hamn^b ^«©ita
bJtea i^J^iftf ;bXo3 ;tJ:ti-o^ »Y*x.bo«ssc' c ^intjte.^saoixl
bjt«i lo eoaf^ffliolisq ®dt alo'iaaocfai i9baBr o& e.fi ;>ae o;/8 o;f
"idfibal lo aeonei-i^T© ^ssotoa y-roRaJtr oasfciv ^ '^i*noo
uuo ©80t:b 88©flJb«*cf»i)fii bi.sB ®fi* \V8#iij8fci«©ldij ©eari;)- asoal
lo in«e asctiTce 4 ^buttT jfusojftitc OO^OOOtOSl
Ai.«8 ^sif* \b99b ieu- }^tsjvi^x^ atist' ^y^BOtdO
t^lXUfS lo aea/xlBJid ©ri* aiOflilXI lo 9*^**8 &tit at Ti^aUnubaoo ee-w ^tuad
M>tinn ©rt;^ ni ^eu ffi ftcTR b«ai; nlcv , .fiyXqqwa tS^iXXaa
Jbi^e ;tRrf* \sox': .ibo^woo y7«e8©oox' , 9ffiA lo BBi»tB
iai'=;o '.jtua *^«f* jOO •000,0-: i^di en:©w a©8X«©irq
-jBXBXqiBOO rf*Xw *n©«»©t:BB Jbn lactawK A M»dt umw
srroii-^aoqioo ^ixl^sd irfrid.. ,. —oiffO lo :^n»?.g Uttoiie^ t^m ^taz
BacitoX^tB*r aUireo tf^dt b&si;, oWw ^rcf tsiai/ijlvifoni fca*
f
lA the purchase and sale of gold ooln would be ohserred by said
baziks designed to bring about limitation of quantity of gold ooin
sold in the United States and Illinois to depress value of real
assets upon which contract for delivery of gold coin, held by said
banlcsy were secured and obtain ownership of real assets for banks
through foreclosure at an extremely small outlay of gold coin on
the part of said banks; that said banks agreed that after restricting
sale of gold coin and causing artificial scarcity of oemmodity to
bring about defaults in performances of contracts, no further
contracts, extensions or renewals, calling for delivery of gold ooini
the performance of whioh are to be secured by liens of mortgj'ges on
real property, would be consummated by s?»id banks^ that "on, to-wit:
January, 1932," said banks, including the complainant. First National
Bank of Chicago, pursuant to conspiracy, believing default in payment
generally prevalent as to amount of prsctioal destruction of realty
values and presenting opportunity for gaining huge profits, placed
said plan in operation by unifoiraly refusing to extend, make or
renew said contracts and proceeded to foreclose existing liens and
mortgages; th t said conspirators controlled the bulk of gold coin in
use in the United States; that Hy virtue thereof they and the First
Rational Bank of Chicago rendered it impossible for defendants to
finance, liquidate or secure gold coin to fulfill contract of obliga-
tion alleged in the bill of complaint; that s^id actions and con-
spiracy are in direct violation of an Aot of the State of Illinoie
entitled: "An Aot to provide for the Punishment of Persons, Co-
partnerships or Corporations forming pools, trusts and combines, and
mode of procedure and irules of evidence in such cases," laws of
Illinois 1891, page 204, and under and by virtue of said act, particu-
larly Section 6, that these defendants are not liable to the complain-
ant for the matters alleged in complainant's bill of complaint; that
1
ao pss.^p.^-Toin lo aneiX ^cf bsTi/osB ecf o* sis rfoijfw to &©fl«RTo'iT£>q ©ilif
iasmx^q ai iiuptsb gi^iry&ilecr ^x^^^'ita^rfof-.' err jh^r.VETut ^oSjfvOJtxfO to iaufi
^ ... -., »s*l^olq -„--- -,::-..-,, .— .. \. : istut toistoo sfii*isae9Tq l)fle s^yXisY
,1.,. i.ito^ bXos to afXi/o' «rfif b&llo^tnco eiotf-AaJt^fix;.. .. - - - ; , ,,'*io«
intiX »ri? Mfl Y©£f;|- to*T8d* &.uti:lv ^^ sfBlft i»&*.«d-e Jbad-JtflU -jd* ill sex;
o* etaRt)a9'i:»b tol: sXefiaioqiii *i b^TsbixstT o^jssiift) to :toj?f:i X«nol*«W
riottiilt to S!^«*8 »rf;t ..., -; • a» to /xoi*.cIoiv o-os-r- . ..^ :,1jp Y»^'xi<l»
-'^O ,eno8t9q to tatmUflRuH sriJ wt ^Jblro'xq o^ *oa fjA« :f>*Xtl#n»
, n'flicfttor bciB siTeuitf ,*Xooq grtiffiiot EfloiitKtoqioO lo ^Himi9atre^
■ o mr?X •♦»8»i3','o rfoxre ak aon»£lv«i t© ««iXfn brrw .■9>'d.hs».onT. to sfxjm
i«»l*ti?q ttos hlKB to ew^rrJfv y^ ^fi'^ rrebnj/ brt* ,K)! . ^^^i. .J: on XXII
«ij?X^ttOo orft ot •X«f«iX *o« e^^ 8*frRjbfl«t»b »8«rf* *s/frf ,a coiJo^e yX**X
#r,il;r ;i^nJfcaiqao» 1© Hid e » *'«.«x?ifiXe«fOd xxi 1>»s«XIr 9it9tiim ©d^ ttot ^aa
4
on or al>out, to-wit: 30th day of March, 1938, said Foreman Trust
and Savings Bank was a moaber of aald secret oonsplraoy tinder iirhioh
it agreed with complainant and others to regiilate and fix price of
gold coin according to progress of subsequent events to secure for
said conspirators and irelf, highest possible profits; that on or
about, to-wlt: January 38th, 1938, to regulate prloe of gold coin,
said banks entered Into a secret pool to fix amount of gold coin sold
in the United States and Illinois; that on or about March 20th, 1938,
pursuant to said plan, said Foreman Trust & Savings Bank entered Into
a contract with these defendants, who, without knowledge of said
pIaA» agreed to deliver to said bank $30,000*00 In said gold coin
as evidenced by contract exhibited in bill of complaint, and, in
addition, to deliver to said bank |5, 500*00 in gold coin as set
forth in said bill; said bank, pursuing said conspiracy, required
defendants to execute and deliver said mortgage; that said Foreman
Bankp throtigh said conspiracy, and the control of said gold coin, was
aoting with said conspirators without whose consent gold ooiild not
be secured, and said conspirators, denying consent, knew that defend->
ants oould not carry out the performance of delivery of said gold
ooia; that said contracts, being made pursuant to said conspiracy,
are void under and by virtue of the laws and statutes of the State of
and
minois^^/ that by reason thereof, said First National Bank, com-
plainant, is in court with unclean hands, and should be denied relief.
The bill to foreclose was filed on October 5th, 1933, and
alleges thst the First National Bank of Chicago, a national banking
association, Kenneth G, Smith and Adelaide Stephen, as co-trustees,
under a trust created by Douglas Smith trf varioixs agreements, dated
September 35th, 1932, and as suoh trustees, ars the legal holders and
owners of the certain principal note and trust deed involved here*
TO ao ;t^d;}^ isttto%o: ftXcfiaeoti jfs»iisx/l ^^Itl©® JbUB sxo^jRijtqenoo Jbi«B
,flloo Jblos 'to ocmq ^^slfiT^j < < ^*^82 \*ssjas«I. lilv-^i ,Jxfo44s
)Io» aioo ijlo^ to ^iJiioaa xit Oif Xoeq t@%Q^z m otaX b»T^txt9 uiOMiS fcljse
jSSei «;fi'OS d3^;8ii *$/o :8iortJtiXI lax a B9*»#e 6»tlaU «if# Mjt
)ttti b9Xt$tnB 3[anfl. a-^lvm ^ iun'S fijm»%»% bUe ,/wXq htee a* ♦nawfiii/q
aXoo JbXog &ise ui OO^OOO^QSl TCajicf ijiae o* ^eviXai) ojT ^«T:i£ tCfiXq
al ^ba.?. tC^aiisXqssoo to XXicf ni Ij^jioislxs d-o«iJaoo y<^ ftaoiiaJbivs $»
t^a ».<: riieo bXos ^^ OCOCk < si fei«« ot r£9vlX«Jb od- tfloi;Mlii)s
ton £)Xwo© l)Xc3 *ii«enoo »eoilir ;r»o^iw tto^isiiqeiwpo J^iBs ri*i?T jjc1*ojs
tXO-STlqBiioo ti ' < js^^ii^jsmo JS>JL«» #«</* iaJLpo
-SCO .ioBE LmoltsjCA tBii'i bim t3:o»50if* 0Obp»t x^ tMi \j9ioaiUl
iaileT JbeiadJb acf JEiXt;oil« J&cb ,«iifl5'!/^^ rtfiSkloc-; tn/oo at «i ,tfl.efJiBXq
te« j'SSei «rf#2 t9do*o0 no i)©Ii saoXosio i; o* Xii<^ ariT
Jb^t/^fc ^ejfiKHfiesag-'^ Bi/oiTsv 'v:* xi^imS' aftlgwoG x^ ba;t(«,9T0 Jain* fi voXtfw
bm Bj9bLoA Lv^Bi afl* ati" ,839;fat/T* rfoi/a 8jb l»ttc < < rracfJK»«'q»8
, )
As Indicated by the answer whioli was stricken, the
defenses set forth are that the oontraot upon which plaintiffs suedj
was entered Into In furtherance of a conspiracy to defraud the
defendants, and ls» therefore, Told« It Is to he noted that the
First National Bank of Ohloago, which is charged with wrongdoing
la this answer. Is suing here as one of three trustees \inder a
trust created, that the suit is brought for and on behalf of the
beneficiaries of such trust, auad th.^t there is no showing that the
trustees have any interest In the property involved, other than
as stated*
Defendants cite Section 5 of "An Act to provide for the
punishment of persons, co-partnerships or corporations forming
pools, triusts and combines, and mode of procedure and riilss of evi-
dence in such 03,808,** (Cahill's Revised Statutes, 1933, chapter
38, paragraph 603,) as follows: "Any contract or agreement in viola-
tion of any of the provisions of the preceding sections of this
Aot shall be absolutely void,** as authority for the proposition thatj
beoause of the facts set forth in the answer, the contract betwemn
the parties to this suit is void, and that they, therefore, have no
right of action* This provision of the Aot in question is meaning-
less, unless it is read in oonnectlon with Sections 1 and 3 of this
Aot, (Oahill*s Illinois Revised Statutes, 1933, chapter 38,
paragraphs 598 and 599* ) These sections provide:
*«598t If any corporation organized under the laws of
this or any other state or country for transacting or con-
ducting any kind of business in this state, or any partner-
ship or individual or other association of persons whosoever,
shall create, enter into, become a member of or a party to
any pool, trust, agreement, combination, oonfeAeration or
understanding with any other corporation, partnership,
individual, or any other person, or association of persons,
to regulate or fix the price of any article of merchandise or
commodity, or shall enter into, become a member of or a party
— §14 J.-li- v'^l si flOl#E0//p fli o l/i. .7,. ._. J, w i;^. .-. CAW i...; O.J.-.A ,...f..
10 n i < ...
to any pool* agreeaent, oontraot, eombination or oonfeder-
ation to fix or limit the amount or quantity of any artiole,
oommodity or merohandlae to be manufactured, mined, pro-
duced or sold in this state* suoh corporation, partnership
or individual or other association of persons shall be
deemed and adjudged guilty of a conspiracy to defraud, and
ba subject to indictment and punishment as provided in
this Aot,«
"SgS. It shall not be lawful for any corporation to
issue or to own tmst certificates, or for any corporation,
agent, officer or employees, or the directors or stook-
holders of any corporation, to enter into any combination,
contract or agreement with any person or persons, corpor-
ation or corporations, or with any stockholder or director
thereof, the purpose and effect of which combination, con-
tract or agreement shall be to plaoe the management or
control of such ccMjblnation or combinations, or the manu-
factured product thereof, in the hands of any trustee or
trustees, with the intent to limit or fix the prioe or
lessen the production and sale of any article of commerce,
use or consumption, or to prevent, restrict or diminish
the manufacture or output of any such article*"
la OhicagQ Wall Paper Mlllff v. General Paper Co.. 147 Fed.
491, the plaintiff corpora? t ion sued for paper sold to defendant.
The defendant filed certain pleas, in which it was alleged that
plaintiff corporation was organized fox the pwrposc of acting as
exclusive sales agent for the paper and paper products to be produced
by certain manufacturing corporations located in the states of
Wisconsin^nd Michigan, engaged in the paper industry, and it appeared
that for trading pvirposes, there was a practical amalgamation of a
number of producing companies* It was alleged that pursuant to the
confederation, plaintiff corpor?9tion became the exclusive sales agent
of all of these paper mills, with exclusive power to determine the
extent of the output, and to fix prices arbitrarily, and that by
such confederation, competition bstween the producir^ corporations
was stifled; that upon the plaintiff corporation being organized, it
came to the state of Illinois, complied with the requirements of the
law of this state, secured a place of business, and has since such
time continued to handle and sell the combined products of 21 mills
in Wisconsin, Michigan, Illinois and other states, as was contemplated
by the agreement of confederation, and that the alleged combination
.91'.
1 to
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.fcjft b«8»XXi? »»w #i rfoiff^ ci ,«,B»Xq GiaihtM bsXll: icBbaelsi) sriT
jOixiJOTq ftcf 0* e^oir&onq TScjiJC?: bn*' tsw^iJCf &M let *ir#^6 eslist »viax/Xox©
jT-seqce ifx ta<- ^x'^&Bvbnt roc- \ati .uu^lffoXM baM atmameBl^
taB-gr e«Xs8 »rXftx/i03c» ttii amfiostf noirf'f?T:oq"soc ill^aiaXcf .eoitf'^Tafc^taoo
Bdi ©flijats^sfc o* iwpoq ariBirXoxs tit lit ^^lllm t?)«?»<? «feeri* lo XXfi \o
■iioi^atoq^oe jftloufooic "«mt«»<f aottti^q&ot: , ' tofieliioo ifojEre
a^i to a^ctaa'f- •'rf:^ ditv bttlqmoo ^aXo/ii ^^j-j'^o-a ©rf* ©* mub©
aXXitt XS to a^sLdboto feenlcfii©© eifr* i h&ijaltaoo •«!*
»*<»IqjB»*xroo ejrw s«j .eat-^^e Tsild^o Itfi* aioniii-i .ojB^iiiOiM ^aimaooii'S al
no .)0 fc9?< inds baa , to jfji»me»T8a til* xtf
l8 TiolatWe of the statute of the state of Illinois herein quoted.
la passing upon this defense, the oourt s^id:
"It cannot be successfully contended th^t the contract
in suit falls within the sanction of the fifth section. Ths
contract thereby denounced as void is plainly one which
directly contravenes the earlier sections; one in which the
trust takes root, or by which the illicit scheme is organized.
The defendant below purchased the paper in the ordinary
eourse of business* It was a stranger to the alleged unlawful
oombination. The sale of the merchandise had no direct
relation to the prohibitions of sections 1 and 3. The same
distinction has been drawn under the federal anti-trust act
(Hopkins V. United States. 171 U. S, 578, 592, 19 9up. Ot,
40, 43 L. Ed. 290; Anderson v. United St-^-tes. 171 U. S. 604,
615, 19 Sup. Ot. 50, 43 L. Ed. 300), and this oourt has
several times held th?t contracts founded upon « good con-
sideration are collateral to the unlawful scheme or combin-
ation and not tainted thereby. Dcnnehy v, MoNulta. 86 Fed.
825, 30 0. 0. A, 423, 41 L. R. A. 609; Star Brewery Co. v.
United Breweries. 121 Fed. 713, 58 0. 0. A, 133; Harrison
V. Glucose Oo. 116 Fed# 304, 53 C. 0, A, 484, 58 L. ^, A. 915. ••
In Lafayette Bridge Oo. v. City of Streator. 105 Fed. 729,
suit was brought on a contract for the erection of a bridge, and
the saae defenses, aaong others, were urged as «re urged here, Thert
vat ao question raised, but that the work was done as it was con-
tracted to be done, and the court said:
"The defendant is, in this suit, attempting to avail
itself in a collateral proceeding of a defense based on a
fact- which should be determined in a direct proceeding.
In other words, before a defendant can evade the payment
of the purchase price of commodities, actxially received,
on the ground that the seller is a trust or combination
in restraint of trade, in contravention of the statute,
there should be an adjudication of s ooarp#ttnt tribunal,
in a direct proceeding instituted for that purpose, deter-
mining that such seller is a trust or combination in the
sense contemplated by the statute. This is in accord with
the ordinary rules of statutory construction. The practical
working of any other rule could not fail to emphasize the
justice and necessity of so holding in cases similar to
the one at bar. It cannot be insisted that the decision in
one case would be binding or even persuasive in any other
case. Each suit to recover purchase money, in which the
statute is pleaded by way of defense, would call for a
separate and distinct determination of the legal status of
the plaintiff, thereby making the claim for the purchase
money merely an incidental issue. This would be true even
if the amount involved were but five dollars, and the case
were before a justice of the peace. The result would depend
upon the varying conditions of each c?.se as affected by
the skill of lawyers, the bias of jurors, and other attendant
,f>«i<iufr. niATAd uxoan^T >o Si*Rf« A^i 1« 9$lf$m$% •iff t*- tVl^aiEtiT «1
XctWjB^i
-at
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tlV'-'-i- -. « V
isrir ^9191) bt^^'i.-J fcOQItf 9'i»W ^StSXl^Of ^OOUB ^8»S«3^«J& MUSS »ll^
Hi
a'
r ■r.a.l';^* Ta«{*o fca« 4av©xiri- i
,«x-jjfw.»j. !♦ iXiiitf »Jirf
olrcumstanoes« Thia would inevitably lead to auoh oonfusion
as vould foroe federal courts to ao oonatrue the statutes
as to protect the due and regular administration of justice
from unconscionable prolixity and irreoonoilable adjudica-
tions**'
There is no showing here that the plaintiff in the suit
ever demanded th-^t defendants pay in gold coin, as the contract
proTldeSf or that defendants ever made any tender of legal tender
notes of the United States in payment of the amounts which they
admit are due under the terms of the contract » except for the
alleged defenses set up in this answer. Also, the court will take
judicial notice of the executive order of the President of the United
States, promulgated April 5th, 1933, a&d the resolution of Congress
adopted June &th, 1933, whioh provides that oblig^^tions payable by
their terms in gold coin "shall be diseharged upon payment, dollar
for dollar. In any coin or currency whioh at the time of payment
is legal tender for public and private debts***
We are of the opinion th?^t the defensea set forth in the
answer to the bill filed in this cause, are without merit and that
the court was fully justified in striking the answer. The decree
affirming'^the Master's report of sale is affirmed*
AFFIRMED.
HEBEL, J. AID DEMIS E. SUIiLIVAN, J, OOiOUR,
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382X3
JOSEPH P£HLMAH,
Appellae^
▼•
SAM SAMSON,
Appttllant.
28 5 I.A. 5 84
MR. PRSSIDIHG JUSTICE HALL DELIVERED THl OPIMIOK OF THB OOURT,
This is an appeal by defendant from a judgment of the
Municipal Court of Ohioago» entered on February 33rd, 1SB5, for
the sua of #364»00 and costs of suit*
Three statements of olaim were filed in the Municipal Oourt
lay plaintiff against defendant. In the first, it is oharged that
plaintiff cashed a check for defendant, payable in cash, for the
sum of |134*00, drawn on the Liberty Trust and Savings Bank, and
signed by the defendant; that the defendant wilfully, and with
malicious intent to cheat and defraud the defendant, represented to
the plaintiff that the check would be paid when presented to the bank
for payment, but that payment was refused, and that the check was
returned to plaintiff marked "not sufficient funds." The second
statement of olaim is substantially the same as the first, except
that the allege; t ion is that a check for $12Q«00> drawn on the same
bank and dated March 18th, 1931, was cashed by plaintiff, and when
presented to the bank, payment m&a refused, and it was returned
marked "not sufficient funds"* The third statement of claim is the
same as the other two, except that it charges that the check was
dated filoTember 13th, 1930, and was for $130«00.
Defendant filed an affidavit of merits in each ease, and in
taeh of these affidavits of merit, he denied that the defendant cashed
the checks, as alleged, for the purpose of wilfully and maliciously
defrauding the plaintiff, but it is alleged that each of the checks
>^
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.OOAOXHO 10 ( «KOeMAB MA8
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Arft to *ff»fr§fe«t •'^ s&tn'i i^a<sbtt9J:9fto ^rrf XesqqB cjs »i tJt/lT
ail;t 10^ ^de»G at ttldsxsq ^iasba»te>b %ct 3{09rio s b9dBso \lltal£Lq
bapi ,in«a agiilvse bofl i-sxnT xti^tiil «rft no flirj?m> eOO.^SXf ^o mu9
diiv? Jbar. ^^JtlJa^'iXiw ^nBibc&lftJb 9£i- jtncbnftlafe Oil* yd beagle
of b9;fxi9»oiqsT: ti-nr.JbflslsJb »d:* bUMttsb baa cJ-^ado o* Jflstni awoir-ilpj!?
*q©oxd ^^atll art* ais ^m*!^ -^ri* f-^XiSi^frve^fsdy© 8i ai^Xe lo ;ta©ffl»*«ta
•«us« drf# no jnr«sJb eOO.' Tfoftffo ft ^srfJ" ai no l^^gellis ari-'^
asihr feflF ,i^i*iii«Xa yd bodeffo e ^ISSX »dd-0X doi.sJI fe«*Bfc Mfr ataAcT
9di »i miaLti Ito fasiaBi.Hin Mld# »dT ^"Bfiat;^ ta^toniuB ton*' bBJtxBm
Bsw 3Co9do »d* ladiJ' a«aT'?flo tl f^dt *q»ox9 tOw* T»ri*o «d* e« •■usa
•OG.OFXt rrol: aew ba^- tOSex ,d*5X larfasToK barf-fiJb
si fell* t^a-^o rioj^o fli aJiTsm to *i:vflfclTl« ui^ fcaXit Jir^JbaalftC
ftftp^', +n-p«:-..if5h *»d.+ *.«d? b9la9b ad «^i*[»ai to erf-XvftJbitta »©9dJ to dojsa
..^* I. ^.;. .^^iis'ill'9 1:0 ©aocrxuq ed^ Tot ,i)S§9XX« b« taioodo ad*
-flj to do*a t'-di b^^nLXf. ei *i *iicf ^'^'^ ;-.+«x«Ij an* vfllbw^ital*
i
sued on was part of a series of olieolcs given to the plaintiff, all
of whioh were undated, and in wbioh the amounts were left blank;
that the oheolcs were given to plaintiff to be used in payment of
loans made to the defendant by the plaintiff over a period of eight
or nine months, and that eaoh of the oheoks, as to the amount and
date, wsre filled in by the plaintiff, and that plaintiff in eaoh
oase, oharged the defendant an interest rate of 25% per month* It
is further alleged in each of the affidavits of merit that plaintiff
was not licensed to do business under the small loans act in the
State of Illinois, and that the interest rate was usurlous»
Upon the issues made by the statements of claim and the
affidavits of merit, the oases were apparently consolidated for a
hearing, and after a hearing upon the evidence adduced, t^ej wer©
submitted to a jury, which returned a verdict of not guilty. The
checks upon which the actions were brought, were introduced in evi-
denoe, and there was no proof of any offer of payment, and no evldenoi
was introduced to refute the charge that when the checks for the
amounts mentioned were presented to the bank for payment, payment was
refused, J^fter the verilot for defendant was returned to the court,
upon motion of plaintiff, the court entered judgment for plaintiff
non obstante veredicto*
The defendant was called as a witness under Section 60 of
the Municipal Court Act, and testified that he had received money
•u the checks which he had given plaintiff.
Plaintiff testified that he cashed the checks for defendant
at various times, and for the amounts shown on the face thereof, and
that each time defendant represented to him that there was sufficient
■OBoy in the bank to pay the checks and that the reason he kspt the
checks until April, 1931, was because he was ill* He testified on
cross examination that he wrote out the checks and that defendant
signed theB«
s
lis ^JJiialalq 9(ii ot n»vij t :!.o!.*t:i' lo a®xi;»« s lo t%B^, asw no bmj»
i»i« i^tisofius 9iit ot ssf tsieexic 9£[it to ^tja^ i»dt ban ^Bdtaom Bata to
don* at tmtxlsiS^ tMt bsiA ^ttltat^lq 9iii xd al b9llil s-xtw «»tsl>
ttltcialq t^dt ttT:9t '^ -.tTsliiltr. - '^ "^o ii8fi» ni Jbegsli^ i^tittut si
»xf* xxi *s>je aasol id5 lel ; tftwd oJb o* Jb08fl»olX *on bjsh
srij ui. '■ to s*fl;9E8 ;]■*;}■ e erf* \*rf sJbfiw esi/ss ' /' ~
-iv9 ax fcdoiffcoiJni 9T»w ,*rigu0'xcr ©taw anoint- rioirfw aoqw sXosxio
9a9bt-73 on bm-j ^ttiomxeq to rceWr ■ ?i uv si&rljf £«!« ,eoi!»i)
arid- *ro^ SJfoorio s»il* iisritr *^j sjjx*^ ' ' ^outcTiui bj8w
tli^fllcXc- aol- tn9fii^i«/(; borts^aft ^rrift:' /.li-tai^Iii lo noitom aoqu
lo G8 aoi:;»3«C t9£>«u eaenJ-xw j? ee i>»XXflO bkw ^aBba9t^t »rfT
"f^aoffl bovieoe'T bjsri s. texlX*89* JbflB ,#oA ;^tx/oO ImiiQlauiS, sdt
^llt&aislq rrsvig b sri »ii ifolxfw 8io»flo 9il;} no
d-oijfcnsleJb tol oioorfo sri? Issxlit^o ©ri .tttdd- bsJiliireo^ Iti^flisX'i
te« ,l«#T»rf* soflx »r oiia ctnuoais ariJi' Tot fcn* ^a^Mii" axroiTi-.v *«
tattai'ituei 8"=^ «i»ri* Jj^iicT oiiil o* b9in9B9%ei«r ta»hnii'i»b »«!* do«o tsdt
9di iqai 9d no9Ji9r 9dt ipdt bos aioerf© »rf* t^q o;f afnpcf ©if* al x»iK»
ao ft«i^l^8«* «K .XXl ep^' »<i »aif»a»cf »«i» t-^Sex ,IJticqA Iltau 9:i99do
s
One Heman Uendelson, a witness for plaintiff, testified
that he had a conversation with the defendant about May> 1931, at
which tiffls he requested the defendant to pay plaintiff his money,
and that defendant told the witness he would do so as soon as he
was ahle«
One Harry Rosenfield testified to the same effeot as the
last witness*
The defendant testified that he had not Made the statements
testified to by the last two witnesses.
The court heard the witnesses, and we see no reason for
disturbing Its finding. Therefore, the judgment is affirmed*
AFFIRMED,
HEBEL, J. AND DENIS £♦ SUI.LIVAH, J. CONCUR,
5
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lot ao9S9r Off efen &m bn& ,80ss®fjti» »{f^ 5t«eri tx'joo »ifT
.mmmo .t, ,iAviaa^e *£ ma:ar . ^ 'Cah
38337
JULIA OOBB0 as Administratrix of the
Estate of Louis Oobb, Deceased,
RUSH BUTLER, JR.,
Appellant,
Appellee*
.^■^
APPEAL
SVt'EHIOR COURT
OOOK OOUMTT.
28 5 I.A. 5 851
HR* PRESIDING JUSTIOE HALL DELIVSRED THE OPIKION OF THE COURT,
By this appeal, plaintiff seeks the reversal of a Judgment
entered against her on April 3rd, 1935, in the Superior Court of
Ooolc Cotinty, for oosts of suit* The action against defendant is
predicated upon the charge that her hushand, Louis Cobb, came to
his death on October 3rd, 1934, because of injuries alleged to have
been sustained on August 17, 1934, throiigh the negligence and wilftil
and wanton conduct of the defendant. The trial was before a jury,
and after hearing the evidence offered on behalf of plaintiff, the
oourt directed the jury to find the defendant not guilty.
There are two ootints in the declaration filed in the cause*
In the fisst, it is charged that on August 17th, 1934, the defendant,
as the owner of an aut<aiobile, was operating it in a northerly
direction along Michigan Avenue in the city of Chicago, and that Louis
Oobb was a pedestrian lawfully and rightfully along Michigan avenue,
at or ne?»r the intersection of Chestnut Street, and that while in the
exercise of ordinary care on the part of Oobb, and through the care-
lessness, negligence and inproper conduct, of the defendant, Cobb was
knocked down and suffered severe injuries.and that as a result of
tueh injuries, Cobb died on the date mentioned* It is specifically
charged in the declaration that at the time of the accident, defendant
was driving his automobile at a speed greater than was reasonable and
proper, having regard for the condition of the traffic and the vise
"^Z^
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.Y^XiiTS *on *n«fcfl9't«l> art* bnil o^ ^lut arf* Mlosiife J-xuoo
»*««f)ii8l-6fc 9tii ^^cex »ri;rVX JaustfA ao t^tit fea^TBJ^o si J-i ^teixl arf:t fli
'^Xiad^rton s flJt *i ^fiit^Taqo 3«w ,»XlcfoK!0#i;B ii Htwo ftif;^ •«
-©ISO sffJ rfaijoiri* Jbna ,dcfoO lo if* no atrro ^T^i^n-t^o *o aeioicox»
lo d-Xi/iM: « »*! teri* bas.BeiTx/tni 'J-ravep! bs-rallus f^rtt* iwofe bsiLocai
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taut •Xd«fle*i»^ •«» ««tf* t8*.>»»«s fiosoe n Ire ©XldonioJ«« «irf Salvl^il) •««
»«0 9it(il ba« ainAi:;r ail* to itoi^ifextoo erf* icol J&t^8«t snivscf 4'X9qoitq
t
of th0 public highway in question, in violation of Section 33 off
the Motor Vehlole Lav* Also, that the defendant negligently
operated and drove the aut(Knoblle at a speed greatly In exo«88 of
15 miles an hour through a closely built up business district in
the city of Chicago; that the defendant neglected to sound a horn>
or give warning of the approach of the automobile, in violation of
Section 40 of the Motor Vehicle Law, It is also charged that the
defendant failed to have his automobile equipped with good and
sufficient brakes, in violation of Section 31 of the Motor Vehicle
Law, and in negligently operating the automobile at a high and
dangerous rate of speed, Oount two charges that the defendant
wilfully, wantonly and maliciously, and with conscious indifference
for and utter disregard of the rights and safety of the intestate,
operated the automobile at the time and place In question*
F» Bertram Scent, a police officer connected with the
CThicago Park System, testified in substance that at about 3:35 in
the morning of August 17th, 1934, he was going north on Michigan
Avenue, and that the accident la question happened at Chestnut Street
and Michigan Avenue; that Michigan Avenue is a boulevard running
north and south, and that GS^estnut Street crosses it east and west,
and that it is about 35 or 30 feet from the east side of Michigan
Avenue to the center of the street; that there was an island light
at both the north and south intersection of Chestnut Street; that
the lights were not operating on the night In question, as they were
Installing a new lighting system at the time; that the night was
dry and the roadway was good; that it all happened in the city of
Chicago; that he saw the decedent just as he, decedent, got down
off the curtMuig at the southeast corner of Michigan Avenue and
Chestnut Street; that the witness at that tiaw was at Chicago avenue.
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owoJb io^ 4^nal>»odJb «aii «£ d'tut ia^ba^^b •dt vtp,s 9d tstit {o^M^idt)
bns ax/noTA ass^td&iU ^ isoaoo tms9diu&e &dt ijR saMTxiBd •dt Y\^
•ifC9v • c -^rocrit: t.; bjhv 9mit isidt is aBBiitlwr 9dS 9»dt it^9XtB turttv^dO
1
south of azid a full block away; that he saw decedent walking west;
that he saw him continuously from the time he left the curbing
vmtll he was struok by the automobile; that the witness was riding
in a ear during all the times in question, and was traTsling north
at a speed of about 30 miles an hour; that he saw defendant's oar
coming north, and that it passed the witness on the left, and
that it was then going at from 30 to 35 miles an hour, and that at
that time, he saw decedent walking in a westerly direction; that
after decedent had passed beyond the half of the east section ef
the drire, the witness saw the decedent hasten his speed, and that
when decedent had reached a point a foot or two from the island
light, he was struck by defendant's car. The witness stated that
the safety island, to which he referred, stands in the center of
the street* This witness also testified that there were no obstruc-
tions between him and the automobile which struck the man, and
that the street was lighted, and the lighting conditions were good;
that when the man was struok, he was thrown in the air and carried
©▼er to the west side of the north island li^t, a distance of
about 30 feet, and that the oar proceeded about 150 feet further
and stopped. The witness further testified that at no time did he
hear any signal, nor any horn blown; that he and an associate
officer picked the decedent up, that he was then unconscious, and
that he was taken to the Passavant Hospttkal. This witness stated that
Michigan Avenue at the area in question is a built-up b^iness and
residence district. On cross-examination, this witness stated that
the lights on both his own and the other oar were ll^^ted, and that
there was a full view down the street.
John B. Casey, ajiother police officer, who aooompanied
officer Scent, testified in substance that on the night and at the
time in question, he and Sergeant Scent were riding in a squad oa#
\
\&B&s gfljtiljBw ta»b9tii& WA« dttf isMi \x*vti :^©«I<f llt/t p has %o tfitciea
dt'xoa scll^vjti;*' eaw J&n^ tiToitseifi? ul 6»ffil$' »cff £Lh ^alrub xb9 £ at
#B tecit fttt.a t-riroii n« aftlier 65 ©;f OS hotI: Jb gflX'os «»dt fijsv d"! t/*i£#
Jo flol*oss *aae erii^ Jo ^leif »£f* lJtflox*«^ Jb«88«Q ft«ri ^nal)^©®!) rrei^i*
bttBlBi. &d:t uoil ovt to oOQl .ra faloq a b^OB$n b^ri #n«Jb9fO«f) a9dw
lo TStfldO srf* fli afcit«#8 ,b»rtrf&t*T tif iloirfw o* ,S)fl.RXBl y^^^^^g ^jif
-ox/^^Btfo oix »t:9v 9'£9gt tfnit J>sili^8©* osiii aesfira-lw alifT •JasrriB aiTt
Jba,« tiusai 9co i&f/rcta doi^fv •Xidosoi^i^'fi ftifJ" has mtd asAv^scf axxoi^
;JboofS STESw exioitiJ!>£ioo gnltfrf^j;! »£f; <, o^^fgtX «i>.i* fAt^ctfi ©rf* ;l«if»
1)«1ti:bo bag rls 9ii& ei irwotrf^.^ < rjottifs 8.«w nsc! »rf* flstfw #Rif#
9A bib Bffiit oa iJR tB£t bvJfiit^Bt r®At^fA &mativ »tfT ^hmqqoie has
(•tf-fijtooais fl« bus »rf tPiC* i«woXcr fftori XPSi rea ^lsa'^I9 t«JB ia»ii
bttB tBuoioBaQoats a^tif sew «f) <qw i-ttsAdoaX) «nf# ^ifoiq «»3mo
iR •s«cic{Kf qwtlttjd fl ttt noitdBap al mamn utii in fma»vk tur^liSxsQi
fsdt htL» ,fcai-i£ail -Tftr- n'.T) lariito »rf# tfia snto Bid di-od «o a^xfsll wSt
.if!»e^*e »/f* iXwoJb w©Jtv llt/l r. a.crw ••r«tf#
fcai. <■ odw ^rtaoillro e©i:io<T TsK^tsni* ^x®*-''^ '^ cifol*
Sid* tfi ban d-riain ad* go *M* •©asd-atfffa nI feani^aa* ,*nsoe rceanio
4
north on Michigan Arenue* and that he witnessed the aooident. This
witness stated that he saw the decedent just after they had passed
Ohloago Avenue, and that decedent was then stepping off the curb
at Ohestnut Street going west; that at that tlae the witness did
not notice any traffic or oars; that as they were passing Pearson
Street 0 which is a block away from where the accident happened, a
oar passed them going north at a speed of 30 or 35 miles an hour;
that he saw the decedent orossix^ the street all the way across
until he was struck; that as the decedent passed the center of
the east drive, decedent quickened his pace; that he, the witness^
heard no signal from the other car, and that at the time of the
colli si on, the decedent was about two or three feet fr(XB the center
Of the street; that deoedent was thrown in the air and carried to
the north island light about 25 or 30 feet, and that the automobile
proceeded frcm 200 to 335 feet from where the accident happened
before it stopped; that he, with the other officer, took the injured
iian to the Passavant Hospital*
Jiaia Cobb, executrix, and the wife of the decedent, testi-
fied that at the time of the accident, the deoedent was 37 years of
age; that they have one child, born in 1934; that at the time of the
accident, her husband was employed at 32nd & Michigan Avenue, and
that he was then earning |18«00 per week, including his meals, and
that at that time, decedent's condition of health was good, as were
his habits; that he was sober and industrious, and took care of his
family, This witness stated that she saw deoedent at about 5 o'clock
In the morning after the accident, at the Passavant Hospital, and
that at that time, he was conscious; that he was in the hospital
from the date of the injury in August until October 3rd, 1934, when
he died, and that the child is still living.
T4.
eirfT .taeJMoojs ^A9 ii*B»*tti'iK» trf fsHi tmji ^©jt/navA na^Mcild no iftoa
baaBsq. bBii x»rf* rvfls itaxft #n«li«a*l) »rf* itjbs 8tff tfsifj Jbeti^^s Baaad-iw
cfiiro ttdt tlio §fllqcr»*« irsrf* sew tfidJtaoQJb *a£[* hflj; ,»tJc;9vA o'^.ejsirfO
bib aBantl-s ©lit sffllS^ t £l;f iA f.t£i j^e-^u :3iii:o^* t»»T*8 turt#e&MO i&
a ,iM»fl»q0«ff taabittiB »«ft *>rt»jEftr »ot1: t««s tt>ol dokihi ^itw^rtB
;tci/0jcl fli^ ©ftlijs i^S 1-5 05 to 6©»<78 b *,« dti:off gflios vaoiit b%fi»eq ijsio
Mci6fi "({?* 9il;t xxis t<i©T;fs ©rt* ^nisaotd fa&tmo<s>b »^* wjr« ftri *i»il*
^o :ti!»tn oaeeRa tws>ijso«& »rf.# «.sb ifud* ;2lo.o"i^8 8jew oil' ilf&u
9i£d- to QitiTf 'yd^ *« ifpxit bns *it.®o isdto srf^ ikotcI lui&^io oa ibx«»d
fklictejuelvc *rf* i-nrf* ^ffp t*'*»'i ^'S 's:*^ <*S ^i^cffli M-^li ba^Lnl rfJhcoff »if*
l>teiB9qqj5ri triable 5-s:«dvr irOTf t»<»l SS8 0i^ 0^ jscrt fc®£>©»©o*rq
"t&p-^t t^nsfcsbaf; sxijf I:© stiff fxitf bus ,xlrt^o«at9 ^cftfoO «il»1
»At Tto 3te.' j ■ , iiffd «fio anriMf Y»rfjJ- jT^^rf* j»S.s
3*c'-.r ?. ■ «l300B auCT if#I'7Bxf ^to ttolHhsioe '»'fta9b9P9b ^^mii^ tasi) tr, tnAi
er;< ^o 'vron ^Qc& ban ^^tK^tx&9Ubsi^ b«.s^ lacfOB am/ »ri t«rft ;«*icfjBiI »1^
Xa*iq«ori »ri* ai srjw «d *iJilt j«Molo©no© tir^ «ri tftffsit u*»rf* t« tsiii
..Q(fr ^^.*:r:l ^.bfS Tftcfo^oO LlSnu tQV^f^ ai XT-^ftnt adt 1« •#£!> »ri* asotl
. Mf •;. Hits «i ijXlrfo »ff# >.ii«f* ban ,f>»16 ©rf
i
Oral argument was had, but neither in his brief, nor In
hia oral argument, does oo\msel for defendant deny th^^t defendant
was guilty of negligence at the time and plaoe In question* The
position taken by oounael Is that the burden was upon the plaintiff
to prove the exercise of due care by the Intestate at the time and
plaoe In question, and that there was no evidence whatever to sustala
suoh burden; that there being no dispute In this regard, and no
basis for contradictory Inferences, the contributory negligence of
plaintiff's Intestate was a matter of law for the court, and also
that there was no evidence from which the ^ury would have been justi-
fied In finding that the defendant was guilty of willful and wanton
conduct*
IB MoFarlane v* Chicago Olty Hy# Oe.^ 288 111. 476, In
passing upon the question as to whether or not the court erred
In refusing to give a peremptory Instruction to find the defendant
not guilty at the close of plaintiff's case, the court said:
"The only question which the court has to determine
is whether there is in the record any evidence which, if
true, fairly tends to t)rove the allegotlons of the declar-
ation, (Ubby. MoNeili & Libbv v. Cook. 332 111, 206:
Woodag&n v. Illinois Trust and Savings Bank, 211 id. 573. " )
Ija English v. (lordon. 231 Ill« App, 316, an appeal was
taken to this court from a judgment obtained by plaintiff, in which
the charge was made that the defendant's autCMiobilc struck the plain-
tiff at the Intersection of 53rd and Hyde Park Boulevard, Chicago.
It was urged on appeal that the trial court should have directed a
verdict of not guilty at the close of plaintiff's case* Plaintiff,
in that case, was crossing Hyde Park Boulevard when she was struck
by defendant's oar, and it was there urged, as it is urged here,
that plaintiff was guilty of contributory negligence. In passing
upon this Question, this court said:
I
't'ti*isisXq 9iii ctoqsj B-rm a«Mxfer ^tfd- tsfj* el Xeam/oo ^jd fls:ist «oi*leoq
im* 9«iJ axirf *B Qd'Mtf'Bd^ai eil;f t^ ©tbo •irh lo seiotaxa erf* sireiq o*
alBthuB ot tfiv^&Mitft »on9i)ivf> »« e^w #^$d* tsri* fin« ,«ol*e».wp til edjsXq
oeXfi 5n« ,#iif©«> 31** tol wsX ^o Te^*x:«B B ssw ad'ei'891'nl «*tll#«lj8Xq
Qj, < « iXI 88S , ^.oO ,YJFi Y^fjS oagoi40 *v ^. , nl
. , . . .!
cfridv al ^lllialeiq \<i bttaistdo tiida -/oo ai/l;^ ©ah aaaLst
.©8«oirt0 tt.i^vaXuo^ X?£^ ft&Xfl Jbycu) l«S5 ^o aoi^oeate^'al M* *« l:li*
s bettyariJb 9V.<sri bXxfoxla *a0O© L-lii sdi it-Oi leaqq.a no hm^riu ««w *I
, .■iiJ^fli;^Iq ,»e^o zntliaiaLc, lo »soXo «il;h *jb x*Xii% *ofl Tro cToiftidv
}ioui^B 8«v aiia naifw brcr-TeXuo^ sixe^ ftt>tB saXa^e^o a^w ^a^JBO ^nci^T ai
^s^aij Isas^j/ 8l *i aa ^ftaaxw e^ait* 8«w *Jt fe/t ^ ^ ' Jn&ijixal »i) x<^
]^Xaaaq nl ♦aoiin^XXasn x'*<3*Jt^''''t*iJoo lo x^^X-t' "^IX^ciaXq ^atft
:£>Xjt!8 ^TATOO !»ii:r:5' ,aox*a«itfp eld* aoqiaf
at ■'
Jtyoo
-i^Xaeb grfcr to
;e0S .XXI ■
("*SVS .i)i lit .
*'Nor oan it be said that It vas negligence per ££
under the oiroixmstanoee that plaintiff did not look again
to see the oar xmtil it cajae suddenly upon her* She might
well have assuned that if the car were driven at a reason-
able and the ordinary speed for such locality she had ample
time to cross ahead of it, and therefore, she w- s surprised
and confused when she found it close upon her as she reached
the middle of the crossing. We need not discuss the familiar
doctrines that each party has an equal right to passage at
a street crossing and that he must exercise reasonable care
for his own safety and th^t of others* Each case, however ^
presents its own peculiar circumstances, from n^ich it is
the particular province of the jury to decide the facte*
And it is simply a question in this court whether we oan
say th'^t the jury's conclusion is manifestly against the
weight of the evidence* In this case we cannot so say.
And in view of the appalling loss of life on public streets
in our large cities resulting frequently from disregard
by motorists of the fact that pedestrians have equal rights
at street crossings, we are not disposed to say that when
a pedestrian becomes bewildered by such disregard and is
suddenly called upon to act for his own safety, his mis-
judgment of the course the aut(»iobile will take is oontrib-
utory negligence* We think there was ample evidence to
justify the jury*s finding that plaintiff exercised reason-
able care for her lim safety and that defendant was
negligent*" (Italics ours)
In this case, as is so clearly stated in Snaliah v* Gordon.
supra, the plaintiff's intestate had the s'me right to the use of
the street as the defendant* He was crossing at a street inter-
seotioQ where people usually ordss, and the question as to whether or
not he was^ia the exercise of ordinary care for his safety iinder
all the circumstances appearing from the evidence, should have been
left to the jury, le are of the opinion that the ooort was in error
In directing the jury to find the defendant not guilty, therefore,
the cause is reversed and remanded for & new trial*
RETER9S0 AND H£MAirOS0«
HEBEL, J. AHO DSMXS E. SULLIVAN, J* OOHOUR.
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iQtr9 nx 8.BW *«ioo aiJ* iMdt «ol«i«io «riif Ito arte «i^ •X^twl; <wJ* «* ^^••t
t950T:9t9ilT .Yifiii/^i ton 4^nftfc/re!t»fc eift bait o* x^t ^sit gaJt^osTlJb at
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^mwK^ .x. t^i^viijus «s Bi«ata m.i »% «41s3e
38299
IN THE MATTER OF THE ESTATE OF
JOHN V7. LALLITHAH, Deoeaasd,
AILBERT B. FULTOK, doing business
as MADISON OIL COMPANY,
▼•
Appsllee,
GERTRUDE P. LALLITHAH, Administratrix
of the Estate of John W« Lalllthan,
Deceased,
Appellant*
i^PEAL hxd
OlaOUIT COURT
OOOK OOUNTT.
285I.A. 585
MR* PRESIDING JUSTICE HALL DELIVERED THE OPINION OF THE COURT.
This is an appeal hj the Administratrix of the Estate of
John W. Lallithan, deoeased, from an order of the Circuit Court of
Oook Oounty allowing the claim of Albert B. Fulton, doing business
as Madison Oil Company, against such estate for the sua of ^^5,000 .OO.
The oaiise was heard in the Oiroult Court without a jury, on appeal
from the Probate Court of Oook Oounty, where the claim was filed
and where, after a hearing before that court, the claim was disallowed^
In his lifetime, and for some considerable time prior
to his death, John W. Lallithan was the manager of the gasoline and
eoal business of the claimant, who was a i^olesale and retail dis-
tributor of gasoli&A, retail dealer in coal, and the manufacturer
and distributor of ice* Claimant's gasoline business was operated
under the name of "Madison Oil Company «• The claim is based upon
the charge that Lallithan, as manager of the Madison Oil Company,
either sold on his own account, or appropriated to his own use,
86,666 gallons of gasoline of the value of |7,633«18, which sum
claimant represent s to be the fair market valu8 of the gasoline at
the time it was so appropriated*
The decedent, according to the testimony, whs in ohnrge
TS^UOw
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Ic ad'.s^sa »i£t to x^TtfiiS-Rijaiai^.-i add
- .. -JH .EM
-j9 ftjE 8i eidT
-aiJb Xi-«Jt»:t tas alseslcflw Rv oxlw ,*«,&i&i:sio ddf to ©aaiilci/cf Xjboo
ai/« ifoXxfw ,8X*S;r.ecVf lo 90Xi;v dd^ "3:0 ^allCBSg lo &noXi<« add«M
.b3d'8iTqoiqq« oa aj*w tt Mtl# aift
8
of the office and yarde of olalmant, looked after truck deliveries
of gasoline^ and dlreoted the bookkeeper as to how entries should
be made when gssoline was received In tank oar lots. The record
indicates that when claimant purchased gasoline, it would be de-
livered to hiSyOlaimant's, yard in tank oars, and that Involoes
would be received by Lallithan froa the shipper, showing in the
oase of ea(& shipment and receipt of gasoline by the claimant, the
net amount of gasoline to be paid for. In eaoh case there was an
allowance made for shrinkage, due to temperature. The course of
basiness shows that in each Instance, checks were issued in full
for all receipts of gasoline as shown by an invoice accompanying
the shipment* It is further shown that eaoh of these tank oars
had stamped upon it its capacity, and th^t in each case the car was
Inapeoted when it came into the claimant's yard. After being in-
spected, Laliithan caused an entry to be made in a book kept for
that purpose, and known as thi "ear book*, which also showed the
oar number, number of gallons contained in eaoh car, and the amount
of the invoice,
Mary Dunn, the bookkeeper of the claimant, testified that
she had been in F\ilton»8 employ for fourteen years, and that
Lalllthan was employed there as office manager, and that the witness
worked under his aupervi»l€»n; that invoices were received from
shippers of gasoline, on which were stated the number of gallons in
each shipment; that when the gasoline came into the yard in carloads,
they were inspected by the yardman, or gasoline salesman; that when
carload lots of gasoline oame in, entries would be made in the oar
book showing the oar number, the number of gallons received, and the
amount of the invoice, miile testifying, this witness had before
her this oar record book showing the entries for the years 1929 and
1930, and she stated that such book had been kept in the same manxMr
and for the same purpose some years prior to that time. She also
t
««jtT9vli©i) iowTit rsf^^ bs-AooL ^iamU-&io to aJboceY fin* »oill:o fidt to
Lsjoti9 eoJti*n« wo*. i9qadji{:tfoocf ©rft fes^f.'^-ri.t fen-- ,»ajtIoa63 lo
MooeT 9xfT .8*oX Tf o :Siis^ ai b&yi&oB-i Hfiwfw »*>««! «cr
-•A 9cr J&Iyow ii ,9fii:Io8«S h&e>^dT>'xtjq taMmlfUt> Had-*; #«5/ri^ 8S*«oii»fll
8ji • , iwodB tfStjqi.cis ©dd- siortr &.^Mk£LBd \-cf Jboviso^i ©cf Jblx/ow
IXjot iJi i)ei?e«i eirew e^'osifo ^coc' .!siti rfo?s ai J'^.rfif ««oria eaaniajBcT
3fllXni5q»09©« ©olovni .. : j »flJX©»«5 lo ©Sefx&o^'c XI>- lol
ajBrr T^o *i{t »8PO d04*- .:_ , : ■ y Jv«qm«*a Jb^ri
TOt d-qsX :)fooc .._ _. ars scf o* vt5:.+.L'9 rt/? besifoo iiis^*ll£ej (ba^osqa
,r50iolKlX Sfid- to
•;'i*B9:f ,*n.ftfti,<«Xo :;.... .... ^/^r^mtf .<:><:><& ©rit ,£E<it/0' r£«M
it! afloXlfis '?:o terfffti/a »tl& betr^fB «i*^f doXrfw no ^e/xlXoe^-., ., ;fecrqid«
eJb*oX^BO ff-^ ' -^tit oS^f.': """•■' ^'^.^rfoss'^ «£f# fl©rir */5rf* ^*n««^ijfo rf©*9
Tfio •«* ffl 9l)rm etf Jblfjow »*jtii'fl» *ni »««« »nXIoe»8 to b#«I fc*oIi:i'e
^di hnr. ef)-»vt909t anoXX^s ^o Tfttfawn »«f* i«»€r«»£«i Tt?o e/f* ^ciwerfa iootf
iaf fesex 8rrB=*y srfd- not 8»litn» 9tf* guiworfe iooti b^ooet iao clrf* TOtf
■r©..rrt««9 ■^r ,- *>ff* ni ifpOJf ir»«cf l>f^rf ^Tootf rfo»» *i^ritf b«t»^9 otfo i>c* ^OSGX
ofci ' sric: rOi i.t ;fpri;t otf- Ttoltq 9t.e.9% taoe esoqvifq #««• oif* lot baa
z
stated that sometimes Lalllthan would make the entries in the boolc«
and that sometimes the witness would make such entries, but that all
of her work was done under Lalllthanis supervision and direction*
She also testified that an inventory hook was kept, which contained
a record of the inventory of the gasoline, and that sometimes
Lalllthan made entries in this book, and sometimes the witness made
entries therein. She was shown a certain invoice received from the
American Petroleum Oompany for a carload of gas, and she testified
that this invoice showed that there was a shipment of 10,066 gallons,
and the check was stade out by Fulton, the claimant, for the price
of this shipment, and that an entry was made in the car book showing
the number of gallons indicated by the invoice. She further testi-
fied that thereafter, at the direction of Lalllthan, she had the entry
in the oar book changed so as to show that the number of gallons
received was 8,066 gallons, instead of 10,066 gallons, which entry
indicated a shortage of 2,000 gallons; that as to another invoice
which showed a shipment of 9,974 gallons, at the direction of
Lalllthan, she made an entry in the car book which shovM the receipt
of only 7,774 gallons; that in the ease of another shiiaent, the
invoice indicated a shipment and receipt by claimant of 10,333 gallonSj
when the entry in the car book showed a receipt of but 8,323 gallons,
but that a check was given in payment for 10,323 gallons; th»t origin-
ally the entry in the oar book showed a shipment and receipt by
claimant of 10,223, but that this entry had been changed to 8,233
gallons, and that she did not identify the change as having been made
by her. She further testified that nobody could work on the books
but the witness and Mr, Lalllthan; that in the case of another invoiee
received by claimant's office, the invoice and oar book originally
showed a shipment and receipt of 10,271 gallons, but the figures had
been changed to show a receipt of 8,271 gallons, but that a check had
s
lie *J6C* tiM ^aei*?;*!?® rioxra 93£pfli jiXfcww eeftii^iw sa* Be«i*9ff»08 ;r?ri# J&oa
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8iioXX«g ta T^dgma 9^dt tv^i worfs 0^ »^ vrio iloocf Tt«o eif* at
cisooT *ifv JiJHKJf'f. cirji!^ inc^:/ 'r;-? '^f^t «i: x^jfa» as; ©t^ste sxla ^xisriJlXXeJ
oXX-Re 5a^,0X t0 *aj3«i.sXe Y«f *«[i®o«'' isffi-.ri^n r ^^,t«5»iijfli »oi©vcl
!2, i-ro t-jft ianoiXXlsa CSS«OX lot ;r«erxfiq al fievis a^w :(oe. i* *ircf
5ES,8 o:J ba^tido «••£[ i>»ii VJ:*-K© »i4* *^«f* **'<* ^cv^ScOX to *neffil«Xo
»?v-K< aa94 sftivjsjl 6'^ »3ii6i{r> 9di ^0-lirt^bX ioa. bXb ©de itdi bas «efloXXB8
-rXXMi^ixo 3lo©cf t:o bOM •oiov ^Adilto ■•^a^aaiiiXo ijcf b^Tiaoei
. 8©itfiit ©xft to<J »aiif> ' • t J-,l#09rE fcfl# ttt^mlfi* » bv9»d»
4
been given in payment for 10,371 gallons* She also testified that
la each case of the giring of these oheoka, they were made out either
by Lallithan or by the witness at Xtallithan's suggestion, and signed
by Fulton, the olaioutnt. She identified another invoioe showing a
shipMtat and inToioe of 10,209 gallons, but that the oar record book
showed the receipt of but 8,309 gallons, and that in this instance,
Lallithan told the witness to reduce the entry from 10,309 gallons
to 8,209 gallons. Another invoioe identified by the witness showed
a shipment, and an original receipt as showa by the car book of
10,298 gallons. The witness testified that after the original entry
had been made in the car book, at the direction of Lallithan, she
changed the figures so as to indicate 8,298 gallons instead of
10,298 gallons* In another instance, the invoioe showed a shipment
of 10,367 gallons, and the witness testified that at the direction
of Lallithan, she made the entry in the car book show a receipt of
8,267 gallons* The next item testified to by the witness was of
the same character, where the invoice showed a shipment of 10,364
gallons, and where the witness, at the direction of Lallithan, made
an eatry in the car book showiag the receipt of SniM gallons* The
next item identified by the witness wr;s of the 3?jae character, where
the invoice showed a shipment of 10,339 gallons, and the ear book
showed the receipt of only 8,239 gallons. In this instance, as in
each of the other oasea, the check prepared by the witness, or by
Lallithan, was for the payment based on the number of gallons shown
on the invoice. This witness testified that the oheeks issxsed in
payment for gasoline were made oat either by the witness, or Lallithan,
and were signed by Pulton.
This bookkeeper testified to a number of other transactioae
similar to those noted above, and the reo«i^ indicates that at the
#
te^iiti* itPO dJbfias Bt9-: X9M-^ ,»ao«/f» »ft«rf* t» s«iYia aut^ 1<& as.^o ^05?» Mi
YiivfOilB aoiovxii t9rf;fo«.'S btiUitawbt 9vH ,^aaaiJ;*io ©jriS^ ,no*i0'? fdl
8£i0 ii?V'; SOS, 01 moi'^ Y^!fa$ sn* ©Oi/>fest «t p!e©n#Ji«r 9x1* Is^io* rfjSxi^lIXstl
^sirs^la sBBattT! ©iat -^d £f<>m*£r*&i- «©it*¥ai %»&&en'- •aisolXa:^ €08a8 «^
. OTT^Jtiia 8 feswoile »t*lovirJt sifif ,a©fiC'4?«jajt iteMQam M% »e.a©XX£5g 86R<t©X
floii^©^xl-o u. . .'id^ l>8ni;*p»# eB9iX*i:'^ 9jff bttJS'^ 5S«eXX.?.B ves,OX |o
*3S,0X "io ftfBmliiB -3 be^-srfa ft&XoviTi eiSJ' ©^retiw ^tS'toexsitft 9«^ii sift
dJtott ,a#iftfXIX«a "io i?o ,*:*!>«•»• i:b »ff* ** ,i5£©«0'i$y ddif iWdifw fees .enoXijra
icod -r/io !»/f;f ^fonjT »8no£lP7: ^SS^iDX 1:o taom^i^u e to*^otiu •oiovKi »ri*
^etff mmXXas to T«refjpi;n h; vastf tfi9mxf^ »fif i^il &ii-9 «flj»i(*iXX«*i
s
direct ion of Lalllthan, the boolcs of the olalmant were made to
shov more than 80>000 leas gallons of gasoline were reoeiTed than
were aotiially reoelved and paid for* However, in so far as we are
able to lee^rn froa the record, there is no showing whatever as to
what became of this gasoline* A public accountant who examined the
books, shipping bills and other dooiuaents, of the claimant, estimated
that there was a total difference of 86,666 gallons between the
amount of gasoline actually shown as received, and the amount shown
by the books to have been actually received* Upon a ooaputation
made, based upon the average price of gasoline for a period frMi
August 1st, 1929, to August 6th, 1930, this accountant concluded
that this gasoline received but not accounted for was of the value
of 17,685.54.
Several other employees of claimant testified, but none
of them explained the mysterious disappearance of this gasoline,
which, without doubt, was received at claimant's place of business
In tanks provided therefor. The only testimony which suggests wrong-
doing on the part of the decedent, is that of Albert W» Hudland,
a witness" offered by claimant, who testified that about the first
©f August, 1930 J and two or three days before Lallithantg death, he
had a talk with the claimant, and that after such talk, he met
Lallithan, and that he then told Lallithan he had heard bad news,
and that Lallithan replied: "Well, it is too bad, what is the boss
going to dot", and that the witness replied that "he (meaning Fulton,
the claimant) is going to oall the auditors in", and that Lallithan
said "fell, if he does that, then that cooks my goose".
Without evidence to support it, the trial court seems to
have arrived at the conclusion that Lallithan had committed suicide
shortly after the incident last mentioned, and that, therefore, he
aJl;^ beriftoea e^iaw ©rtlX©**^ t© am>XX«s ««»X OOO«j08 iw4t ftroas wo£i»
x-^ sw 8JR :t3l oa ai tioTswoH •rol blsq. Jbfl« ^©vlaeea ^IX«ii*«ws &iam
»ii^ iX39w*©4 saoXi^a isQij^B ^%&iXib ijB*o^ ffi 8^w »icari* *M4'
JbeJ&jtrXofioo ^iiei-fltjucoo.^ , --te d-etr^A oJ- « ^ eX #a&a{fA
-swici/cf lo SQAXe a •*£££«! avXa^o©' ^irfyol* ;t'jjod*iw ,rfoii6i
^c'tt:: '-'fit isj^ic o<it^®i oiiw ^tasmXulo xd berallo esexi^J;* s
ou ,d*/36ifi e'fl^xiJiXXB'-i duo'idcf a^jsi) e^id^ xo cm* fcn3 «05ex «tf»JUgi/A lo
t«E ad »iXB* AouB TO«e ;f.sd* 5a:- ,;raiuii«Xo e»xl# ii;fXw jCXfl^ b Jb«jcl
aaecf «ri;r al *sriw ,fcj6cJ ood- ei *i t,ll&^*' jJb^lXqaa xiusji^iXXiuI j-.«if;f fine
iUBrfi-xXXjBil t«il# I)fl£ ,"iil aaoti): IXe© oJ ^pilXos «i {^asssdAlv 9ii$
♦ "90O0S Y:a aiooo t.^ti:! neri? ^j.^ff* eaol> ^ tjsa
o:f REsris *ii/oo XJBJti^ edi <*<£ il"ro<:;Qi/« o* aonft^Xv® tuedtX"^
iotm foftd-*i:;;iii:oo £)Bif fl«it*lXX ;.,i/Xonoc |)ovi'xia »TB«f
, loTteiaff* ^isdi fcn« ^banoi*fi»ii taJBX *fl»l)ioiti 9ti.i toitsi \ltz0d9
was guilty» The oourt, thereupon, made a finding of $5, 000,00
against the estate without any evidence whatever, to support
sueh a findingo
The judgment is reversed and the oause is remanded*
RETTERSED AND RSMABDSD.
HEBEL, J. AND DENIS E. SULLIVAN. J* 0ON0im«
00*000«3$ to gjtiiJbflil jp BbBSL ,aoq0«T»i(* ^ituoo «rfT *xtiJtirs »«w
tioqqtsu o^ ,i9V9;fftri-(? ©onsblT© y**^* tuoA&tv e^Btae ail* ^eajtjss'
,g;.. uUa csasaris
38168
THOMAS HOIST OOMPANT, a
corporation,
(Plaintiff) Appellee,
▼♦
WIU.IAM J. NEWHAH OOUPAHY, a
Corporation, et al«,
(Defendants) Appellants,
FROM
SUPERIOR OOURT
OOOK COUfiTY.
28 5I.A. 5 85
MR, JUSTICE HBB2L DELIVERSD THS OPINIOI OF THE COURT.
This is an appeal by the defendant from a decree entered
in the Superior Court of Cook County hased upon a bill of oomplaint
filed by the plaintiff seeking to establish and enforce a trust.
Ho evidence was introduced, but by agreement the ease was heard by
the court on the allegations contained in the bill and answer and
on the exhibits attached. The decree entered by the court finds
that the contract involved in this litigation created a trust of
the funds derived froa the Sanitary District; that the plaintiff is
* o^etui que trustent of said fund and entitled to be paid out of itj
that the defendants had been guilty of a diversion of funds fron
said trust to the extent of #3>037,51, and are, therefore, personally
).iable to^repay this to the plaintiff; that defendants have stated
they will continue to divert the fund which in the future will
become due the plaintiff, the total of which future threatened
diversions will aggregate |4,754.19»
The decree orders that a money judgment be entered against
defendants for $2, 037, 51 and costs, and further, that an injunction
issue against defendants, commanding them to desist and refrain
from diverting, using or disbursing any of the funds which the court
finds in this decree should be paid to plaintiff each month out of
the fund provided for in said contract which amounts to ^679.17 each
month, beginning December, 1934, and continuing thereafter for a
period of ten months.
\
mm. Jh^iHA \
T?:
.YMUOO
S8G.A.I2 8S
8dI8S
/» ,YaA<lKO0 T8I0H BAMOHT
iflgKoo lo Xllcf r- noc;a Jbocscf y^hj^'O'^ ^tooD Iko tiiKsD 'xotr9Qtxe 9tit at
,iBint V 9010^X19 has dBiIcfe#89 c;^ ^nljf^aa Jtltalsilq ^it x^ boLtt
i<J brs^Bd cow 9&M9 &di is99fi^Tgs x^ iud ^b^cubQiiai 8.sw oo«©!>1t9 el
fcne i«waixj3 bn.e IlicT »fit al bmil.Ficioo anoitsgelXje ©rfJ itc tisjoo eift
Ic iBiJii B b9tJf9i.ti ttQlta-^iiftl Btdi nt Bsvloviti tosttato 9dt *j8rf#
el ?ll*nlflc erfrf ^'^.rfj ;*oiT;feiCl' YX«*Jtn££ aritf moll l>svli»fc tbnu^ erf*
flsot'i sluHik 1o noianrsvlf) •? lo Ytllug nesii &.eii Biti3ta&l9b ari;t i-axfi-
vrr-aoBTeq ,«ito^9i»xli »9t? ifie jie^VSOtSi lo ^natxe exi* : ■/ :tni;ij' JblsB
-.*'te STfiri B^nsfcneleJb **ri;f jllliXfi^Iq »rf* o* &l£ii v 3lcfi5H
iliw n'wiu'i ftri* ni ifeirfir bnwt 9d& Jit^vlh o* ©mii^aoi^ . r^dt
7i«:%A b9fta9 ttd ta»iB:^bul x*nom .^ ip.dt eiObTo 99^ o-^^ aKT
.;.>i^Ofli/t*'^ °^ ^*^* ,i»ri*Tj/i liaB ,ecreod bas XS.VSO^.' •::\tn i." ■.•
'^t rfoitfw aJbAul »dt to xfl« giilsiifcff. ^ . . i^attxn'fJtb moil
H..i=a VX«eV8| O^ rtiSl/OSUB riOiriw Jnnrir- >9fcivOTC btti;;^ 9X1*
M tot T*rtB»ieri* jfli"" ?•+«'' , t cu i>niiuix^v.d ,ri*ao»
♦srfifffofli fr'^+ "^'i bolisg
It i» further ordered that defendants pay to plaintiff
hl7, being ten per oent of plaintiff's total olaim, out of
payments received by defendants from the Sanitary District, each
month hereafter, beginning with the payment received by defendants
in March, 1935, and continuing thereafter until the fmll amount of
plaintiff's claim be paid«
It la admitted by the parties in interest in this litigatioi
that the question at issue rests almost entirely on the construction
of the contract between Ready Qo» and Newman Oo» Prom this contract
it appears that on September 24, 1931, Newman Go. entered into a
contract with the Sanitary District fox the furnishing of all
materials, eto« for the construction of the West Side Intercepting
Sewtr Contract No* 4. Newman Oo# gave a performance and completion
bond, with the Fidelity and Casualty Company of Hew York as surety.
On February 5, 1933, less t|ian five months after the date
of the contract, Hewman Oo» suspended work because the Sanitary
District was without available funds to pay current vouchers to
Hewman Oo* Fr<ai that date, February 5, 1932, until after the date
of the contract between Hewman Go, and Ready Oo«, to-wit July 16, 1934,
work was not resumed under said contract, and when it was resumed, it
was by Ready Oo»
It is further recited that the United States Grovernment
through its constituted agency provided funds under certain conditions
in an amount necessary to pay Hewman Go# the prices specified in its
contract with the Sanitary District, but only for work to be done
after the date of supplementary contract between Hewman Co», Ready Oo«
and the Sanitary District. Ho part of such funds could be used to
pay for anything in connection with work done or materials furnished
by Hewman Go* to the time of suspension, February 5, 1933, nor for
anything thereafter, except for work done and materials furnished
after the resumption of the work*
s
♦.fclijq e<J ffilx-Xo e'tliifnl.sXq
3X3 ■;jj,jil eifl"? ' ..-,.-.--. -^ a^jt5JhT:;8q Bdi x6 bo^tti&br esx jM
aoiitu\tBtioc -si ■ u • -..i-.'. ^^Oicl/j sd-esi susei: *f> aoi^aawp «rf* t^di
*o«T*iioo six!* flt^r' . -:- ."■ --^'isB. n^^aw&.9'' * — ^rtoo 9£f# lo
9j.efc »d^ Tft^fi?; li^ntr ^V^tx «:•, Tiaoiixdsi , .<v- fl.ea«f9?!
561 t^X Y-twt 3-iw-''- , - - ■ riBiureii aoaf^i-ec i-ciiiJ-aoo »xl:t to
iti ^fcati-/^^ , ■ ittu hsmjBSti ton «jwr irrow
OO YbraA ««pO fliMBweii rtasratibci i-*Aii»Wt;yo x^^*''^®*'®-^fi<^ry® *o 9*j?t> ©d* Tc»#tr
0* beau ftd bXuoo ekHf/t rl^ v -Jtrrd-alti YTJSi-JliJ.^S »dJ b''
i>©d8iir54rt »X«in0*ii« to axioi) ^liow xitfi'* woid-oertaoo ai •^iif*x«* 'xol v^
boditintcrl 8XijJ:«»*50J brtA eaoJb iaow toi tqr»ox9 ^isilamari* aniri^xfli^
Due to its inability to obtain the neoeasary fvinds with
which to pay the oost of labor and material to be used in the
parformance and ooeapletion bond, Newman Go« was unable to enter into
the required supplemental oontract and proceed with the work*
Therefore, Newman Oo» faced a cancellation of the contract and a
new award*
Newman Oo. in order to avoid oanoellation of its oontract,
made an arrangement with Ready ^q*, with the consent of the
Sanitary District, whereby it assigned to Ready Oo* all its right,
title and interest in and to the contract between Newman Co. and
the Sanitary District, and in all the tools, plant, and equipment
then on the site of the work and to all monies due and to become
due to Newman Co« fox work performed*
The Ready Oo» then entered into a contract with the
Sanitary District to complete the work provided for in the contract
between Newman Oo» and the Sanitary District and furnished the
neoesaary performance and completion bond* But Heady Co* undertook
this only on certain conditions, which were required for its
protection, and which are set forth in the oontract between Newman
Qo« and Heady Oo*
These conditions were, in substance, that all monies due
at the time the contract was entered into and to become due there-
after, should, when and aa paid, be deposited in a special account
to be opened in such bank as Ready ^o* should designate, ajid that
no money should be drawn from said account except on checks or
orders signed by Michael Heady, president of Ready Oo* or by such
persons «« he might designate; ths.t the money so deposited should be
used to pay for labor, material or other items arising under and
out of said contract with the Sanitary district and other payments
thereafter set forth in said oontract, except that after all the
things called for by said contract had been completed and accepted
dttm mbaii'i rrssssasa :..:'.+ i.i-:,Jd"o o..t y.t;: Ilc'rni r^it of 3.uG
•iic. ...
SEC"
•i-fr.LMf X ••5;*c/;"i,
... <n^
. ./nod aol*'^ \'~""
-©T8ff# SX/fc •BOO- oJ'fli Cj?
■'-■/IS '{wilU^i- Cli
4
by the Sanitary district, and all labor, material and other itoas
arising under and out of eaid oontraot had been fully i».id, Ready
Oo* should receive $75,000 as full oompenaation for its under-
takings and obligations and the balanoe should be paid to Newman
Go* or to Newman, personally, or to sueh other persons, firms> eto»,
as fiewiaan might designate*
According to the allegations of the bill of complaint
admitted in the answers by the defendants, plaintiff entered
Into a contract with Newman Oo, on December 15, 1931, about one
and one-half months before Newman Co* suspended work. Under this
oontraot Thomas ^levator ^g« furnished labor and material to a
total prioe of |3, 591*66 and assigned this claim to plaintiff. On
January &, 1932, plaintiff sold Newman Co« one used hoist for
13,200, payable within thirty days, which sale was mads by a con-
ditional sales oontraot* and no part of this money has been paid,
by the Newman Go*
On Deoember 3, 1938, April 1, 1933, August 1, 1933, and
Oeoember 1, 1933, and April 3, 1934, the ^hCMUts Elevator Oo» served
OA the Sanitary district a notice of claim for sub-contractor's lien.
As to the following evidence there is some conflict: It
is alleged in the bill of eomplaint that on June 38, 1934, Newman
Oo* through its president represented to plaintiff and to Thomas
£levator ^o« that it, Newman Cto,, was unable to complete its oon-
traot with the Sanitary I^istrict and wished to assign its interest
therein to Heady Oo*, and th^t said assignment could be made only
with the consent of the Sanitary i^istriot, whioh would withhold
•uoh consent unless all claims for meoh8Lnio*s liens against said
oontraot were released, and if Thomas ^levator ^o, would release its
eladms, Newman Co* would make it one of the terms of its assignment
to Ready Oo* thnt plaintiff and Thomas Elevator ^o* be paid the
full amoTont of their claims out of the proceeds of said contract*
t>
Xi^eff <*i«<I tJtXw^ fy
i^^^izo lti.n. . .as&aalr ^o^«i^^ erf* xix r..*«ri«fc^
aid* .^nU .ixo. I«.^n«^.. ^ ^^^*^ «^^^«^ *^^^*^ "^^"-^"^^^ *"*
^a<.o , i<i Btm ^^ ^ ^^t nl^U^ ^l^sxm .OC^M
,I>i*q fXBBd ^nA x^ao«. ^l^t to .^x,.q on &n. ,;^ae...t^o X.noi*ifc
5
The plaintiff further alleges that Thomas Elevator Co,
believing and relying upon said representations, on June 28, 1934,
executed and delivered the release to Mewman Oo# for use in securing
the consent of the Sanitary District to an asaignment of Newman Oo»
contract to Ready Co., which would hind Ready Oo» to pay hoth claims
out of the proceeds of said contract and receive the assurance of
Newman Go*, through its president, that the release would only he
so used and that he Newman, would procure a. written acknowledgment
from Ready Oo# of its liability to plaintiff and Thomas Elevator Co,
% the answer of the three defendants they admit that
Thomas Elevator Oo» executed the release and delivered it to
Newman Go,, but deny that it was given or used in securing the
consent of the Sanitary District to the assignment of Newman Co,
contract to Ready Go# and state that the release was obtained for
the purpose of getting Ready Go« to accept said assignment*
By the answer of Heady Oo« and Ready, personally, it is
stated that they had no knowledge of what Newman Oo<»> or any of its
agents, stated to plaintiff in this behalf and these two defendants
state they never agreed at any tim© that they or either of them,
would bind either Heady Go* or Ready to the payment of plaintiff's
claims* It is further stated that Ready Oo« agreed to make payments
on said claims only out of such part of the proceeds of said
contract as would reuMiin after Ready Go# had been reimbursed for
any and all advances and for $75^000 in addition and that the rights
of Ready OOti should be prior to plaintiff's rights and that Ready
Go* should have the first and superior right to all the monies,
warrants, or other evidences of indebtedness given under said contrsot
to reimburse Ready Co* for any and all advances and for 375,000 in
addition,
Newman Go«, one of the defendantf, denies that through
Its president, or any one else, it was stated that the release would
•dO ToJsveia a.FajoifT ;?=rf* b9^9LI& xsid&'tjjl tittfils
Sfliiims* «1 «aw i usanrsK o* 9ai?3X9'r ©ri* fcaireviie.b ban b9iuomx9
to socvTi'SS": ^rl;}' i5vl90Si £>nB d-o^T^noo Jbi/se lo &b&&&c- o tiro
•tf tXfio bluer 9e;--el'^" Si^::* ..;-nt <i-f''9ftx©9Tq 8*i ri3siJOa4* ^.o
•if* 3nltxjt>.98 at l>9&0 rto n:^,, . d^ xa».^-
,.t38«O0
t*11:ttatflq T:c Jaawv^r. ^irr
= -^"%«X«q fti.'?t!F o? hoe., »
blnB to e£>960or:c
»o1 JbftaTtrcrelw a»9(i
f*' ©fft *firf* imp aoiij.^^
^esJtiton »ri* II* ot c. .^o.^.
M7;/noo Jc>iR» lebrfju n«vi^ 9s9nbfii'i
.ill oiv .b?r. y*ij.; ■ . ; ;•■:
.ir-tB ,a*a98B
„^ lo *uo xLa0 asi«I» Mas ae
tsjMt.b aixm-^j bIsjQrv «« .tOftT:*floo
i>j,ijoff 9u»^l9t ftff* ^^if^ b9Sv:te ii~^vi m j. ^-^c^m-^ uiiu <,x^.. ^v ^aneMesxq a*i
6
be used only to seoure a written aoknowledgment from Ready Co. of
its lialdility to pay plaintiff ox Thoaias Elerator Oq,^ and Newman
Co«» states that the president » Newman, showed them a oopy of the
oontraot "between Newman Go* and aeady Oo» and that this contraot
contains all the agreements and assurances made with and to
plaintiff and the Thomas ^levator Co*
The contract in question is set forth in the bill of
complaint, wherein it is alleged that on July 16, 1934, Newman Co«
entered into a oontraot with aeady Oo«; that in paragraph four of
the contraot it appears that Newman Ooa agrees to obtain an agreement
from plaintiff that it will extend the due date cmd maturity of its
claim as follows: That plaintiff will agree to accept ten per cent
of its claim per month, the first payment to be made ninety days
after the first voucher is issued, and ten per cent thereafter until
paid in full. It further appears, and it is not disputed, that the
first voucher was issued in S«9tember, 1934« Consequently, it is
claimed by the plaintiff that the first claim would become due in
December, 1934*
The plaintiff contends that paragraph four of the contract
between Newman Co» and Ready Co« determines its right to recover for
the amount due, and in construing this fourth paragraph the plain-
tiff's position is, that when Ready Co* received its vouchers from
the Sanitary District on account of the resumption of the work
provided for in the contract, the plaintiff was entitled to the
amount due, payable at the rate of ten per cent per month until the
claim was paid in ftill* It would seem from this contention that
plaintiff's theory is th^t by reason of the fact that vouohers were
issued by the Sanitary District to Ready Co, for work and material
furnished by It, the liability of Ready 0©, is fixed and it is obligBd
to pay SA Installment each month until plaintiff Is satisfied.
To properly construe this contract we must examine the
"io .oD Y^e»H mo nit fncm^bslfKHiiQn J3»**itrw s stir^SB od- xXao b»6u »cr
*Oi»T*aoo sic" . - : ••? rt9sw*«d ^Ofl:[*i»oo
,:, . , ,1 Yi^t;L no d-jBifd- XksgaXXfi ex tx rtieTSrfw ^tntn^lqmoo
^ji»& ttq £t«i' a Xliw l^l*flijsXq iSTTdlXol: »« sRiflXv
erf* tejii ^bBiuqBlb tact si ;fi • , I .XXi/l «i bteq
•i>sex «?«cfBifto«a
sol T8voo&a o^ jfdgii e*i: 83Xiittn>*"»b •oO x^Bef Bar. rOO nswrsK C88w*»€f
i-xo?* oxi* lo noi:^oiflu8^) -; ^nxrcc -tilt
ads iitats liiaGta laq ;fac. » »i*fc' faaomM
sTi^w 8T»ri««0V *«il;f trmt 8i '%lX*ai;8Xq
i%iXcfo si *i Itfiii l>87cn 8l -0^ ^fppfiH \o x^iXicfjpli arf* »*2 ''Cd I>8d8iittif^
•l)8il8X*98 «1 IHtatrSq Itim aiaoa rfo r* ;J/r»ffiXX8tf-8ai fl« X«<1 o^f
7
terms of the paragraph on which the plaintiff relies, and. In
doing 80, we find at the end of paragraph fo\rr this significant
Qtatesent !
"It being understood, however, that in no event shall
Ready Oo« become personally liable therefor, or for any
part thereof."
Applying this language it would be but reasonable to assume that it
was the intention of the parties th^t these claims mentioned in
paragraph four were to be satisfied from the money received from
the Sanitary District, and that It never was intended, from the
terms of the contract, that Ready or Heady Oo* should assume a
personal liability for the payment of the claims against Newman
Co. by furnishing means for the performance of the Sanitary District
eontraot»
There is evidence that vouchers were received, but in
what amoionts, the record is not clear* The record does disclose
that Heady Co«, after it resused work under this contract, expended
liao^ooo.
In answer to plaintiff's contention, the defendants say
that oonst'ruing the contract as a whole, it was the intention of
the parties that Ready Co* was to be reimbursed for monies expended
by it in doing the work, and in addition was to receive #75,000
out of the proceeds of the Sanitary District contract before it
was obliged to use the balance, if any, in the reduction of the
claims of the plaintiff* In support of this contimtlon the defendant
points to paragraph eight of the contract, which is in part as
follows :
"And the parties hereto agree thnt the fact that certain
agreements have been made as to specific creditors, afore-
mentioned, shall not be in any way construed to mean that
Ready Co., in any way, admits that they are creditors, nor
that they have any right in whatever monies, warrants or
evidences of indebtedness may be paid or given as payment
t
tojsol^tti^tt Bit-:: qfiiaAisq to £>n® s nil: •» ,06 gaioA
cl Mnoi^jttiac: BmXBlo ©BSifS' d^'^ri* S9l*i:^q ©ri* "lo xmitfcaitjil exit aisw
cotI bsvtnoaj. \9ff0ffl 9ri* fflcil Joei'^el^f'jsa ad o.t et&w twoI \cfff/JTs«T«q
ttj8J«r«a fBaisv,^^ aiai:^ Jaem*^^ arf^ tcol \:JJ:Iicf.siX Xs/io8'x»q
«tOBT#flOO
»«oXcBii) 8 30& broo&"' * roofn 9ri^ tB^flwoiBa i&dm
•OOOaOaXl
0C0»2T!^ erlaoet o.t bjbw floX#l^*:!? rr < ^ SnioJb ni #1 ^^
tt ©tolecf ^oBTitnoo rf-^.tT.t^t 'tc eJb9»ooiQ Sift to tiM
9zJJ Tto ncttcub^- t , >i: taoasiBd" arid- bbu ot hvglido eaw
hflBfc/ielftfc tdt ttoittrntnco nlA& ^o JTorvq-i/r nX ♦tli^nlaXq arft to fmipXo
KB tiFXi fTi el rioirivr ^foBitnov :j ^rfglg tfqjR'ra.p' ■ ' j
:ciyoXXol
ton ^Gto^lbno ' -. «i v*^*-* V.
10 BtUSTTflW tS _ - aVBr: Tf^fi*
under tbe oontfaot between Newman Oo. and Sanitary
District, prior to the rights of Heady Oo» It is
understood and agreed, between the parties hereto, that
aeady Oo» shall have the first and superior right, to all
the monies, warrants, or other evidences of indebtedness,
given under said contract between Newman Oo« and Sanitary
District, to reimburse it for any and all advances and
for the |75,0(X) agreed to be paid as aforesaid*"
Plaint if f»8 reply is that this provision of the contract applies
only to paragraph eight, wherein certain specific claims are
mentioned, and the rights of these several claimants are restricted
•o that Heady Oo» might be paid out of the proceeds of the contract
for its claim for services rendered, as specifically mentioned in
the contract*
It is upon the same theory that paragraph four is called
to the attention of the court as being a complete paragraph, and
that under its terms plaintiff is entitled to recover the amount due
from Ready Oo* or Heady personally, provided payments are made, and
that receipt of these payments obligates Heady Oo» to settle this
claim*
It is to be observed in examining the various provisions
of this contract that it was the evident intention th-^t Ready Co,
was to be compensated for the work performed and material furnished,
out of receipts of the Sanitary District, before the several claims
designated in the contract were to be satisfied* It is further
borne out by the provisions of the contract that Ready Oo. was not
to assume a personal oblig- tion to pay any of these claims* This
is further emphasised by paragraph eight, heretofore mentioned, in
which it is stated in clear language that Ready 0©* has the first
and superior right to all the monies, warrants, or other evidences
of indebtedness, given under said oontr'^.ct between Newman Oo* and
the Sanitary District to reimburse it for arqr and all advances made
by this defendant, and for #75,000, as an additional sum*
It is a well known rule of law that a contract must be
::j
f ,i'i.Ji 20 ZO ^i ^ X, *
.... .-L.! Ji , - ...ci
%: . : ecf ■©■* ( . ..x
•'i??It> ^f>.tf>A«R ciat'x&o ai»i»rf^y ^$^J.^ ri<f«Tti««'xi«j ©^ Xifl^
anoieivoaq sxioirr^v arfd" g/vifliaax^ «! bsinrsEfdo 9€f o# ai *I
,cO i^mn e»rf* noitfxnjtKJ: *asfci;T9 erf? pf-- ;?i :i-3tld' 4'O.ex{)-flO0 Did:* I:©
■ rf.inrj'* Iffi^tfj^aci tail? fcajarrot'staq 2C1C' <5l .&8#-«'8/i®^Q0 dcf o;^ cj&m
ton e"^ < r'i.'& ^i.f.t to fisttoiaiTOiQ ari? X^f *^o 9ni€4
9
oonitrued from the four oomers of the Instrument and the purposes
of the contracting parties determined from the whole of the contract,
taking into consideration the thing to he accomplished and the
manner of accomplishing the purposes provided for in the contract
and the payments to be made and how to be applied. When the work
was resumed by Ready 0©, \mder the contract, it was to be paid the
amount due it as the work progressed. The plaintiff, however, was
to receive its 10^ installment payments provided for by the contract,
from the balance of the fund remaining in the accoxmt of Ready Co.
after the deductions, as above ststed* The #75,000 mentioned in
the contract was to be retained by Ready Oo^ only upon the completion
of its contract, if the fund proved to be sufficient to satisfy
this amount*
For the reasons stated in this opinion, the decree of the
Superior Oourt is reversed and the cause is remanded with directions
to that court to proceed in conformity with the views herein
expressed^
mOBXS H£?SK3E0 AND CAUSE
RSMAHQSQ WITH OlRSOTIOIfS*
HALL, P«J« AND OEHIS £• SULLI7AH, J. CONCUR,
iio« »ri* n»xis ♦i>aiXqcr/? sc' od- woa bne ajb^y a^flSKX*'? *^* J^a*
5rfi J^-laq »ci o? 8t<« ti e^o^stJ-noo adit n^iljAif *o^ ^bsay. fd iD«aLU««'i ajw
,:,. \ '^ lo iaocooj^ 9^;S at '^XaisiaQx imul adt to -36aBi>«C! ari* tuoil
tt«-ti^i?.« o* iaalotllun ad o* I>9^voiq: ^iwl: arf* fi: 4*ej?'£jrj(ioo 8*1 5©
zactiotnib dJti-w bsbctem'si at atusc ^tit J&xsge ijssicovdi: «i tiJt/oP TOiT«q»£
COOK OOUMTY,
38333
In tHe Matter of THE ESTATE OF , . „ .^
JAMES THOMAS KELLY, Deceased, ) /"ilRROR TO \
PEOPLE OF THE STATE OF IIJ.INOIS, ) PHDBATE OOURT
Defendant in Error »
T«
HIOHOLAS HADia,
Plaintiff in Error. ) ^O D loAo 5 85
MR, JUSTICE {JEBEL DELIVERED THE OPINION OF THE COURT.
TMb writ of error directed to the Probate Oourt of Oook
County w??^ iaaued upon the request of Nicholas Radis for the purpose
©f reviewing the record in a contempt proceeding, wherein this
respondent, togeilicr with others, was found guilty in the Probate
Oourt of Oook County and committed to the County Jail for a period
of one year, vinleas sooner discharged in due course of law.
This proceeding was instituted upon a petition filed in
the Probate Oourt by Jack Rubens, an investigator for the Public
Administrator of Oook County. The petition sets forth that a direct
contempt had been committed by reason of the fact that the document
purporting to be the Last TSill and Testament of James Thomas Kelly,
deceased, was a forgery, and known to all of the respondents
connected therewith to be such. The petitioner further named the
persons involved in the matter and prayed that the Oourt might
require the persons named to show cause why they should not be held
in contempt of the Probate Oourt of Oook County, Illinois.
Upon the filing of this petition, the oourt proceeded in
a summary manner, and heard the evidence of witnesses, irtio were
interrogated, together with persons whose names appeared on the docu-
ment as attesting witnesses, and one of the respondeats, Julixis fi.
Waitohes, who as the attowwy, filed with the clerk of the oourt the
SSSSf
^.
'BSgxises
ft'XO'il
^•i
:m
iTSB^ .;;ii
;i-jni:w»lT9x tit
etnaJbnoqp
adit f)©cej?n ladttufl Tsn
♦aioxfiiil tt^ax/oO ioo
. -lUjo'O atooO to lotBxtatistmbA
^ tqffiSitnoo ai
eri:;f truo'^ na* "ie ii9.
1.3
Ivr b9i:.'\: ^Y^f^OifJ-jT. 9£f;f er oriw t8«rioJl.8W
3
purported Last Will and Testament of James Thonaa Kelly, deceased,
also presented the petition for proof of the Will and Letters
Testamentary in the Estate of James T^oaas Kelly, also known sis
James T. Kelly and as Thomas Kelly, deceased, on February 26, A. D.
1935, praying that the will be admitted to probate and that letters
testamentary be issued textotwi after proper hearing and proof, and
that the petition be set down for hearing on May 16, A* D. 1935*
At the conclusion of the hearing upon the matter of
contempt, the court entered an order from whieh it appears that
James Thomas Kelly departed this life on or about the 36th day of
February, 1335; that Julius P# WaitehUs appeared in the Probate Court
of Ooolc Oounty, Illinois, on the 6th day of Mareh, 1935» and
presented a document purporting iBf its terms to be the Last ^iU suid
Testament of James Thoma* Kelly, deeeased, which purported Last Will
and Testament bore the signature of Paul P» Zalinck and J«ihn
Dailyde as witnesses thereto, and which said purported Last Will and
Testament named Bella Butmajti and this respondent as executors thereof;
that at the time Julius ?• Waltches filed the purported Last Will
and Testament of James ThooRS Kelly, deceased, he also presented
to the court the verified petitions of Bella Butman and this
respondent, the persona named in the Will as executors thereof, asking
that the Will be admitted to probate and record and th«t betters
Testamentary issue to them in the premises*
The Court thereupon found from the evidence heard in said
cause that the document said to be the Will of James Thomas Kelly,
deceased, and which was presented to this court as such, and which
bore the signatures of Paul P. Zalinok and John Dailyde as witnesses
to the execution thereof, was not actually witnessed by these persons
in the presence of James Thomas Kelly and in the presence of each
I *»•«•••* ,>cXX»"i CBOOit^' B3>tG^-I, to ^^^efts*!s bstTcqtaq
ea^i-^oJ iMM! lili^ Brief to too^q to^ eroiJiJ^H aa« i>#;^*i -!?>''■' cMlr
■JR awoaH (»el^ tXU9>l e^no^T edcttj»l> ^o spates 9ifi^ ai Tt'^^iXMiis^a*?
,3C€i . , X T<3* am "Sfiitisini lox avot #6» trf a&lilit>q ndt t»sit
Jb/i« tfisei trioxpM "^o ^rpfe if*® actf ao «»>i;oni:XXI tY^^st®^ alooO ^
has £Lx u«i«# sti y«^ ^alt^o^isp^! sttwMcumo* fi J^tiiwsvq
XXi :>9;fToq'roq rioiff?? ^Aseraoa' ^ f-ronT B&»Bit to &a93ijntti9l
nriot. bur iofliXn.^ .'i XwrH t© s-xir^rfiiiSJtB •f^* *^<xf *n«>«UJif8«T lijcui
rkfiis lltf: fund b^t^aqrm blait rfolilw ba& tOtsmwit »««e»fit*lw «« ofiyXiiJO
ItosTdff:!- ezoiuoexB e/^ ;fael)neqB»7 ctiift has nimtiiB. MgM& bmu^a inaantw^f
Hi-'-, r&nj btstiorti: od^ttm"^ .^ euXXaT, «iiX<* »ia^ #« *«d*
h»^n9e«?q oeXn sd ^bsBs&o&b ^ilL&fi a,a!KiOiflT »eNi^ti to ^imtifi^BOT tetf
li^BJC ,loerrscf* E^o;fua»x« 8b XXiW arf* ftl fcajB.cji eno^'sec r^ll;^ ^^iftlitmwtwii
rfo/d-v I;a<^ ^riowe c t i^Twoo altft o* te&a9tf9rc B*^« fltoirt^ tea «J>9iuBto*Jb
mnytBsuiiif ^jh whtlisG arfol. bar 3lorr*. s»Ttr*«iis-t» 9«iJ^ •^M*
•-^ag 99Bsli fd hessextJj-iir x-EX^Jtf*»« tor i o-jieff* aoJ:*usfr«x» edtf o*
f(:>-9 ^o 9onn8»rra arf* rri brrs xllnH eaaawfT aeiseli 1© &o«»B»T:cr nrit nl
3
other, as required toy statute, but on the contrary the oourt fouxxd
the fact to be that Paul P« Zftllaok and John Dailyde affixed their
signatures thereto after the death of James Thomas Kelly, the said
John Dailyde having signed said doouaent in the undertaking est ah-
liahmcnt maintained in the City of Chicago by the respondent, John
J« Bagdon&a, and the said Paul P, Zalinck having signed the document
at his home after the death of James Thomas Kelly at the request
and instance of this respondent, Hioholas Radis*
And the oourt entered a further finding from the evidence
that all of the persons najaed above were fully advised of these facts
prior to the date when the respondent, Julius P» Waitohes appeared
In ooiirt and presented the Last Will and the application for its
probate to the Oourt, and that the persons herein named were scheming
to perpetrate a fraud upon the court and intended to cause the court
to admit to probate and record a dooiiaent which the named respondents
knew on said date was not the valid Last Will and Testament of
James Thomas Kelly, deoeased*
Thereupon the oourt found the said respondent Nicholas
Radis» together with the other reppondents, in contempt of court,
and they and each of them were sentenced to the County Jail of Cook
County for a period of one year from the date of the order.
The respondent Nicholas Radls makes the point that the
Probate Court of Cook County erred in not discharging the respondent
on his sworn testimony in open oourt, denying his guilt. Upon an
examination of the record, filed by this respondent, we are xinable
to find that at any time during the hearing this reppondent objected
to the admissibility of evidence of witnesses on the theory thst he
had purged himself by his testimony as a witness at the hearing
before the court. So the question resolves itself into whether the
hearing before the oourt was in the nature of a direct contempt which
assailed the dignity of the court.
Its &49%*a} a»%uiimBtB
r-.e J-^®.4gia ^irja£[ »fe^IiBG miol
gj^Xj>iioi(?i 4J4i©£iaosL*»^. ^'^^^ '*® ^oitPiffitai f>««
atKddos ■
,.:fiii,.:,^Q&b ,,'^Xlaj( a^s^oMT «9ajBL
•fiiusfC «&J .''■'3 eev '
The attorneys who appear as amlous ourlae inrite our
attention to the oase of The People v. -Whitlow. 357 111, 34, wherein
the oourt speaks of eontempta oonanitted in open court, or a contempt
that is not in the presence of the oourt, and says:
"Upon the oommiasion of a conteapt in open oourt, it is
competent for the ^udge to proceed upon his personal
knowledge of the faota and to punish the offender sum-
marily without entering any rule against him and without
hearing any evidence, ♦ * • Mishehavior constituting a
contempt committed in any place set apart for the use of
any constituent part of the oourt, when it is in session
is deemed to have been ooiraitted in the presence of the
court, ♦ * ♦ The order adjudging a contemner guilty of
eonteapt oonuBitted in open court must set out the f^^^ots
constituting the of ense with sufficient particularity
and certainty to show that the court was authorized to
make the order, • • * In a oase where the proceeding for
contempt is for acts committed, not in the presence of
the oourt and not in furtherance of the remedy sought or
In enforeement of the court's orders or deorees hut to
maintain its authority and to uphold the administration
of justice, if the party should a,nswer denying the alleged
wrongful acts, his answer is conclusive, extrlnsle evidence
m&y not be received to impeach it, and he is entitled to
his discharge,"
In the oase of People v, Sheridan. 349 111, 203, the
court stated what would be oonsidered a constituent part of the court
and said tkat If the alleged conduct of the persons charged took
place befoiM such constituent part of the oourt it was therefore la
the presence of the court and a dlreet contempt. The oourt further
said:
"The first contention of defendant is that the petition
filed by the State* s attorney was insufficient to charge
him with conduct constituting contempt of court because
It did not contain an allegation that the grand jury was
Investigating any complaint or charge of crime committed
In Oook Oounty or an allegation of the object of the Ques-
tions asked defendant when he was before the grand jury.
It Is a sufficient answer to this contention to state that
the alleged contemptuous conduct of defendant was before
the grand jury, which was a constituent part of the
criminal oourt, and his conduct was therefore in the
presence of the oourt and if contemptuous was a direct
contempt, and it wag unnecessary to file a petition or make
a formal charge by affidavit in order th?t the court might
punish him for the contempt. (People v. Cochrane, 307 111.
126; People v, Sherwln. 334 id. 609.) since it ws not
neeessary or essential th3t the petition be filed it Is un-
necessary to consider whether the allegations of the petition
*
'Oja«(iHsrsq 9df nl ton si jfisdt
4 *
TO.
l;4. -it..
-liit 1.0
■,.■-■ eirf
,ij?il:r bins bam
noi:#i.
;tfr»#r?««> #«i[t1- «dT*
.ill
•f^rid-ftrii
that was filed were sufficient to charge conduct con-
stituting contempt of courts *
From the order entered by the court, we find that the
respondent in this case, together with the other respondents found
guilty by the court, was present in court when a document purporting
to be the Last Will and Testament of James Thomas Kelly, deceased,
was presented which dooitment was not properly signed by two
witnesses, and the witnesses who did sign, were not witnesses to
the execution thereof in the presenoe of Jaates Thomas Kelly in his
lifetime, and in the presenoe of each other, as required by law*
From the order, the court further found that the appearanca
in court for the purpose of filing the purported Last Will and
Testament of Jaanes Thomas Kelly, deceased, was in furtherance of
a soheate on the part of the respondents naaied to perpetrate a fraud,
aftd that the oontemptuous oonduot of this respondent, together
with the other named respondents, when the will was presented in
the court for purposes of probate, took place in the presence of
the court, and being a direct contempt, the judge of the Probate
Oourt aoted properly in exercising his jurisdiction to pass upon
the acts of the respondents*
It la evident from the record th'^t the court was imposed
upon when this alleged Last Will and Testament of James Thomas
Kelly, deoeased, was presented*
The only real question involved in this proceeding, so
far as this particular respondent before us is concerned, is whether
the order is sufficient in its finding of fact to sustain the
court's position in finding this respondent guilty.
It appears frwi the order that Hioholas ftadis was present
in the Probate Court on the day in question when one of the
respondents presented and filed with the clerk of the oourt a docu-
ment purporting to be by its terms the Last Will and Testament
-fl9f> JOjy^tt-O S
■rir^*?i5*'c
a^.brrocreOT
•rr r !•> !
■c '-.exr-, -. <r
^ . + )-r«: -::
WJ T^W*
©^^K-
.•}■ 1 ■ <i»f .! !> -t r '•*
iTc- n ArT.-l-
I'vf ^." ■ .-T71 i iF^ff« +ft u dK" I f rtJI
'■• «"■?«+ ii&iiw iiGifW
-:...; til
6
of James Thomas Kelly, deoeased, sjid presented a signed and verified
petition by Bella Butman and Nioholas aadis, this respondent, who
were named in the Will as executors, asking that the will be admitted
to probate and record, and that Letters Testamentary issue to the
petitioners named*
It is clear from the order that Nioholas liadis appeared
in court and was present when the alleged Last Will and Testament
was presented to the cleric of the court - a constituent part of
the court - and that the same was prepared as a part of and in
furtherance of a scheme and design on the part of the respondents
named to perpetrate a fraud upon the court. That, in our opinion,
would of itself be sufficient, froa all the facts and cirouttstHiioes
as they appear In the record, to justify the court's order*
The question is called to our attention that this prosecu-
tion was founded upon a petition of one Jack Rubens, and was not
supported by a sufficient oath or affidavit. If we turn to the case
of The People v. Sheridan. S49 111. 203, we will find, upon a like
question, this statement by the court;
"Stnoe-lt W9.8 not necessary or essential that the petition
be filed it is unnecessary to consider whether the allega-
tions of the petition thst was filed were sufficient to
charge conduct constituting contempt of court."
In other words, the hearing being before the court, it was competent
for the judge to consider the contemptuous conduct of the respondent
before the court, as well as in the clerk's office - a constituent
part of the Probate Court - and ptmish him for direct conteuqjt without
the filing of a petition or the making of a formal charge, supported
by an affidavit.
Since the question arises largely upon the order of the
court, we have examined the suggestions made by this respondent, and
are of the opinion thst there is sufficient in the order itself to
justify the court in finding this respondent guilty and in fixing
the punishment*
t^T.'
toMBa^r-'^
.• :.0'O0 fljt
- ilSXO OBW
ax f'
^Ksp &dt J'^Cf* &i: -^Xft
Binebaoqs&i aiiJ 1^
?iJ^ no fl^ieah bm aasjrfoe « to 90£m'i&iliru'i
titoiaiqo
bQnuuL
e^'Oit»iJ"8tKWOtio i>flR cd-ort
, r<l€l±^tl.>> bJjJOV
.TSl' '
t '•;®erq.« x^dt a«
-tfoesoxq GJti.w .. -
>dT
(fcwj R«w fcrr« (iBnecftffi
bQbftjuc'i 8JS7? floi;;r
•».'
< -rfffii^tR "TO : "9irji1-t b«tiioqqvU
aatiX e acqu ,
t ' ^^^''^ «£L. • . - . iO
ittuQO : . c t^atn/p
/ioi*i*»c »f^^
tfl»i»q»H©0 8«-?? d-i ,*i;;oo ©n;)' etcot^cf ^ftJt&cf scfltai9r.i < -jao^v' 'x&iiJc izl
bar ,>^«^nuv189t »Jt<ft ^rf atjfrc 9ao ihsfv^^^ist tMft fceislw«r» evfrrf e^ «tttfie
SAlxll ai fcn« t?Xi«S *«? .ffi&fin at ;t^uo© ari^ V^^^Oi^t
7
Upon an exaaination of the order of the court it is to he
noted that the prooeeding is criminal in its nature and instig-ted
for the purpose of Inflicting punishment upon the respondents for
their fraudulent acts* Although it is true that the order Itself
is not entitled in the najae of the People of the State of Illinois,
still these respondents have entitled their sereral briefs and
ahstraots, which are a part of the record, People of the 3tate of
Illinois VB« the respondents here in oourt, so it is ividcnt that
this is a orlalnal prooeeding and properly entitled*
The case of The People of the State of Illinois ▼> Securities
Discount Oorp*. 379 111, App» 70, has been oalled to our attention,
wherein this oourt said:
"The draft order indicates by the number it bears and by-
its text that the proceeding for the contempt or contempts
therein envuaerated was brou^t in the name and by the author-
ity of the People of the State of Illinois, and, in our
opinion, it is the order of the court in this cause. Under
the oireumstanees we think that the manner in which the draft
order was entitled was simply due to inadrertenoe and is
inconsequential.**
Uil^n the question of proper title, the oourt in the case
of Manning ▼, Securities Co.. 342 111. 584, said:
"As a preliminary question it is insisted that the several
appeals are not properly entitled in this oourt. In Lester
▼• People. 150 111, 408, 4t was held th^t ordinarily whetlier
a oonterapt prooeeding should be entitled and prosecuted as
an independent proceeding in the name of the People or carried
on as a part of the civil proceedings to which it is incident
is of comparatively little importance and that the practice
is not uniform."
W« are of the opinion th8,t the proceeding was criminal in
its nature, and that the court did not commit error in its finding
th&t respondent was guilty of direct contempt. The order of the
Probate Oovirt is accordingly affirmsddf
ORDER AFFIRMED.
HALL, P,J. AKO D£NI3 E. SULLIVAR, J. CONCUR,
X:. . "
LT'fA HaOHO
38266
SYLVESTER ADMS and ROBERT BR00ZIN3KI,
Appellees,
APPEAL FROM
EDWARD ZEUTSOUSL,
Appellant*
MUHIOIPAL COURT
OF OHIO AGO,
28 5 I,Ao 5 8
1-1
MR. JUSTICE HEBEL DELIVERED THE OPIHiOi OF THE COURT.
Tbis appeal by the defendant is from a judgment for the
right to possession in the plaint if fs» entered in the Munioipal
Court of Chicago in an action of foroible entry and detainer.
Plaintiff's action vas upon a purported lease, dated
Koveaiber 14, 1934, for a store at 8458 Burley Avenue, Chicago,
Illinois, between Louisiana Busoh, the owner, as lessor, and the
plaintiffs, as lessees, for a term of five ye -rs from December 1,
1934, at a rental of #75. per month for thirty-six months, :89«
for twelve months and $85. for twelve months*
Possession of this property is now and has been since
Kovember 13, 1929, under lease by the owner, Loviisiana Busoh, at
a rental of #110. per month in the defendant. This lease was for
a five year period, to be renewed for a further term of five years
at |115* per month upon service of a sixty day written notice of
election upon this owner by the defendant of his intention to renew
before the expiration of the term.
Defendant's possession continued under a further lease
from the owner, which was executed, in compliance with this option
contained in the expired lease, for a period of five years from
December 1, 1934, at a rental of 1115. per month. The owner,
Louisiana Busoh, has received a rental of |115. each month from
the defendant from the time of the execution of this instrument*
The question in this litigation turns upon the plaintiffs*
purported lease from Louisiana Busch, the owner of the premises in
quest ioiu
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tl Tsctosoau ujo-ri fcis-g^C »viT: lo tat&t r tol; t3«>8eae/ ^ ' 'M-.tflijsXq
• s^ldTiOii. -•visw:!' tiolt «du'^ ^ixib Bit^ncj. '3''-i5>wrf' rtol
ifi jrfOBUfi iicoxBXuuu ,a&iiwo »il;r \d aaaeX x-^ijuu «eS6i «5X i^cfstarvl
»8*»I i^xiirul R x^hcw b^sjnltaoQ aoieeeseoq 8»*c9f5jndl©G
a^l c^tx svi't lo ttoi'iSn -' fcanijR*floe
■Orel: ff^aoK £to«ft Adllii^ !«> XcitjOMl'S » £M»Ti»oa'j B^^d ^ilOBuU jBiusiaiiroJ
«#aa«tfXT^8al eirf* lo noi^iioara ori* Ic SffiJt* »ai ajcTl *ft.Bfai9l»i> erf*
»«lti/ai«Xq 9Ai nocu aatuit noi* yl^iX Biff* at noi*a»«p »rfT
3
The facta reg^^rding the alleged execution and delivery
of this lease are, subs t ant i ally, th'st plaintiffs signed the lease
of November 14, 1934, and delivered it to Louisiana Busoh for her
signature. The lease was signed by her and returned on November 17,
1934, to plaintiffs' attorney Mr, Ryan, by Montague Brate, Mrs.
Busoh* s brother* Mr* Brat* advised Mr* Ryan that the riders attached
to the lease were not satisfactory. Thereupon Mr* Ryan prepared new
riders to be attached to the lease, whloh lease Mrs* Busoh was to
sign and return to Mr. Ryan* One of the leases was returned to
Mr. Bratz, and a receipt for the lease retained by Mr. Ryan was
signed, and is as follows:
"Reoeived of Louisiana Busoh lease dated November 14,
1934, covering 8452 Burley Avenue, v^ith SyJ Adams,
for purpose of being held with lessors additional copy
of lease and until deposit of 3525 made by lessee*
When possession delivered exclusively to lessee, leases
are to be delivered to respective parties. If possess-
ion cannot be delivered to lessee or if lessor's title
not good as expressed in lease, leases are to be held
"by undersigned for oanoellation. This is not to be
construed as acceptance of escrow by undersigned.
£«orow will not be accepted until both leases delivered
and eash deposit by lessee*
(signed) Feden, Melanlphy, Ryan & Andreas*"
Subsequently, the plaintiffs' deposit of |B10 made with
their attorney was withdrawn by plaintiffs on December 15, 1934*
From this record it appears that no further action was
taken by the parties until this suit was begun upon the lease that
was delivered to Mr, Ryan,
In the consideration of the problems involved, it is
necessary that the plaintiffs recover upon the strength of their
right to possession, rather than upon the weakness of their
adversary's right to the premises* The re^i question is) Have
the plaintiffs an executed lease which was delivered by the owner
of the property?
The troublesome proposition which confronts this court
concerns the receipt* It appears that a rider was prepared by
o* eew rf08{r?[ •eiM aeesl rfoiriw ,98a^«X (fcfCt ^# 4>«t<sI©M:l'.a scf 0* ar9bi'S:
:«w)XiOl ei2 ei bus. * bangle
c^i
t^oo
asnt*??X .^^i^i
U ttJ- \-
1
^a^^i-j"?.
6C O.V
iilC.''.
.M
iw x^ '''
jb»T0ViXeX' tiSo&feX tttfocf XXij£u; ^^^ xaal
^fj bas
ifd-iv »i^«B GXS$ ^o ;tX«og®l) *»t1:l*fiis;Xq ©li* ,-tX*xtiaArp»«<^Ar8
-Hi »8J!»X 0rf* noqu n«a9<' a^^^' ^^^^ »-i^^* XX#aw 8»XJ*f.r4 *^^ \^ enttsi
Tdiiwo 9Af jiS b»iS)-vtL^ olidw a»»»X fj*.tiit>«Bir» ojb Bttld«iJ8^cr •!!*
txThi»q[o:tq 9Ai to
8
the attoxncy fox the plaintiffs^ whloli, as far as this reoord shovs,
was not accepted and approved by the landowner. The conditions
stated in the receipt were not performed, in that the amount to be
deposited isatex tta terms was not fully deposited, but, on the
contrary^ the sum of $63.0 deposited with plaintiffs* attorney was
withdrawn soue time before this suit was filed. The receipt Itself
does not indicate a completed and delivered contract between the
parties* The deposit of |5S5 was not mad.e, and this is one of the
eondltlons not performed by the plaintiffs, and further, the signed
leases with the riders attached were not delivered to the respective
parties, and the cash deposit as we have stated before, wsls not
nade by the lessees*
The defendant in the instant c^.ae is in possession unler
the terms of an extension period fixed by a lease executed by the
owner, in compliance with an option exercised by the defendant. The
term of this extension lease and the rentals payable are as above
stated in this opinion*
The fact that the plaintiffs* contract was not fully
executed and delivered, or accepted by the defendant, does not
militate against the rl^t of the defendant to retain possession.
Defendant's possession is established by the lease under which he
claims right to possession, and, from the reoord, the court erred
in finding right to possession of the property in question to be In
the plaintiff*
Other Questions have been raised, but it will not be
necessary to consider thep,as we have concluded that the defendant
is in possession of the property and entitled to retain possession.
Tor the reasons stated in this opinion, the Judgment is
reversed*
JUDOMEIT REVERSED*
HALIi, P.J, AND 0SNI3 K* SULLIVAN, J. COSOUR.
•k:
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tott
94 tofl XXi'<? ;M iud ^b^ulnr nssd ^vistl anoiifaairp itwM^
8l ^affl^Jbirt an* ,n6i:xii:Q0 eirft ai lx»*/{*8 lenoa'^^atr aa;J irot
•taaxerai;
,st eiiiic eg A •u<i ^aoAH
38393
/ / y /
WILEY HITOHOOCK, ;
U»p£cL^(^
( 0 oapl al nant ) Appe 11 ee ,
ojiiouiT oouaT
WINIFRED HITCHCOCK,
OOQK OOUUTT,
(Defendant ) Appellant .
1 285 T A riJ
MR. JUSTICl HEBEL DEUVSHED THE OPISIOH OF THE COURT.
This la an appeal by th« defendant fr<» a decree entered
in this oause» and from an order upon an intervening petition,
allowing attorney's fees*
By order of this court, there have been oonsolid'^ted
for hearing Gases Mos, 38292 and 38393, In Ho, 38293 a separate
oplnidn of this court has been filed*
This action is based upon a bill in chancery filed by
the complainant against the defendant to set aside a certain so-
ealled trust agreement , on the ground of forgery* The cause wss
heard upon the bill of cemplaint; the answer of the defendant and
amendments thereto^ the count erolaim of defendant and the amendment
thereto; the petition of the defendant for a permanent injunction;
the amendment to the cross-bill; the affidavit of defendant for
summaary judgment for all expenses, and the petition of defendant
to rule on all her objections, and the intervening petition of
Fred Holy for attorney's fees.
The decree of the court finds: (1) that the parties are
husband and wife, though living separate and apart; that oomplainsnt
has been a school teacher in the Chicago Public Schools for the
last fourteen years; that he bought a home in Chicago and had the
title thereto taken in joint tenancy; th^^t defendant and their son,
aged 16 years, reside there now; that after the complainant paid
off the incumbrance on said home he opened a joint sf^vings account
In the First National Bank of Chicago, about December, 1935; that
■88g .A.IS8S
S6S8E
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, AO'
ri-5fJR£>fli5l0C )
, 3idi ^0 If:
^hQlil; a&o i to aQttitqo
saw aew^o stii »Yr9siot lo tinjyoxs sif* no <^aea©«^^^ tmjmt bsSLsi^
ftffjG tflsfiaal til; ?>ri;f 1:0 t&m id-jitfilqaio© 1© iXi:«f aild' ttoqu bx»»ti
c^js9t36fl«B.? wrfJ- tar? ;^ivbaBlBb lo atialdH^rf-mrof) siC* |i>;f»i;9rf* atamd^mm
^f>t)tt9lt>t to aoi^lt^' ^<338ii»<jr :frri>Bi;i5Jbir£ x^ammn
9Ai To^ «Ioorior olXdii"? 09f»«»li<' i t^f!©«»^'t Xooiio® jb nascf tjBtf
»if;t l>aif IkiM •SJolriC nl ei. >Y fl.5»iJ^t;o'i Isjal
?§fllTfl8 *nlot S! daadqd »«f iintfl Jbl-ps no ttttaaidnuont •dt llo
9
upon reoelTlng hla salary oheoks he was in the habit of endorsing
thea and turning them over to defendant to deposit in their joint
savings account, to be used for family support and maintenance;
that said sums of money were never intended as gifts from oomplain-
ftBt to defendant upon oomplainant's endorsement of said checks;
that only in obmb of the death of oomplalnant was defendant to
become the owner of whatever sums of money remained in said savings
aooountj that up to June 35, 1932, said savings account had reached
the sum of 111,000, but should have been |15,199, instead of only
$11,000, owing to the fact that defendant had deposited the total
sum of M,199, in her own name, instead of the joint ao count »
unknown to oomplainant; that on Jf\me 35th, owing to a run on the
bank, said parties withdrew the sum of #11,000 out of said bank
and on June 36th deposited the sajae in a safety deposit box with
the Foreman Safety Box Company vaults; that both parties have keys
to said safety deposit box, but were not *«► draw out any money
eieeept in the presence of eaoh other; that said sum of $11,000 Is
&OV en deposit in said aafety deposit box*
(3) That the next day after said sum was so deposited,
the defendant drew up a so-called trust agreement in her own
handwriting, the same consisting of two sheets of paper, the part
containing the alleged signature of the parties having been lost
by her son, Aaron, whether purposely or not the Court being unable
to decide; the Court finds that said defendant either forged the
signature of complainant to said document, or wrote the second sheet
of the alleged trust agreement over the genuine signature of com-
plainant, and all unknown to oomplainant and without his knowledge,
consent or authority; that in faet and contemplation of law there
there
la not now nor never has/been a legal trust existing between the
parties respecting said sxim of til, 000; th-it the alleged trust
falls for the further reason that there was no trustee either
{^naiMi&fairjsi hnr *to< que -^JLtaail ici t^asj ®^ «t ^sfoifoooa e^^nivfiii
•t *Cf5i)G9tdI/ BAY? Jxi.cajtsXqB!oo 1:0 riJiRftU ^iii l^ sai^o .ii ^{Xno c^s^l*
asiJ.tTr>s Alec ni fesfrr ■ -a T:©V9:^^3iiw 1:0 ^emf© 8iS«r «jBoo»cr
J^d'uJ' eu« iJ^iinoqBli feed itaAfjnaAajD j^iS;? , CC^lJ.^;
:-.c&oq9Jt> AmS, »fxuli no Jbfi«
si; ■ < iiiufi bi' ix^iiio ■ r ■ ">t < i. ;tq»ox©
>ci\a'^f; isv»fl T<iM« woa #oa »i
3
mentioned or appointed, nor the said trust fund transferred to a
trustee, and that the parties themselrea still have control and
possession of said tll,000«
(3) Finds that about August 7, 1933, complainant brought
a divorce suit against defendant, alleging extreme and repeated
cruelty; that fox the purpose only of determining the amount of
alimony oofflplainant should pay, the properties of the parties were
inquired into, ineludlng the |ll,000 involved in the present suit;
that there was a oross-blll filed in said suit; that a few days be-
fore the oase was set for trial, complainant's then ooxinscl withdrew
from the oase; that complainant then secured the services of
John E» Groves, counsel in this o??8e, who upon learning from com-
plainant in the divorce suit that he had no one but himself to prove
the charge of oruelty, advised that the divorce suit be dismissed
at complainant's costs for vs,n% of equity and without trial upon
the merits, whieh was accordingly done; that no testimony was
offered or heard upon the merits and no decree of divorce was granted
to either party to said suit; that no property rights were settled
and under the law and the Statutes of Illinois no property rights
oould be settled in that case without a decree of divorce being
entered, and that the s'^atus quo of the parties remained the 8?me
as if no divoroe proceedings were instituted; finds that said divorce
proceedings and all the orders entered therein are not res adludioata
of any of the matters and things in the present cause; that said
cause was General Number B-373874 in this Court,
(4) Finds, orders and decrees in regard to the counter-
claims of defendant, especially those relating to the hiring of
various stenographers, attorney's fees in the divoroe oase, and
doctor's bills eaused by her own negligence in trying to evade
service of summons in the present oase, are not only unnecessary
expenses, but also not proper charges against the complainant in
TS':.' i-;:f
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i. ;'<^.ir «, _.: ^-n'rirr--' r-
«>Of f 1.- <Tj
ill #li«Xilr>XqaK>0 ^ ^-^Ji^-rnj
r '• - '- " » ' *'TOitiQb
4
thii oaae; that all of the oounterolaima put together are more
than ©fftet toy the #4,199, of complainant's earnings ^ioh defend-
ant has appropriated to her own use and which she failed to deposit
In the said joint saTinga aooount; that all of the unpaid hills
incurred hy defendant be paid out of the part of the |:il,000 herein-
after set ajside as belonging to said defendant*
(5) Orders* adjudges and decrees that the #11,000 now
in the Foreman Safety Deposit Box 0<Mapany be equally divided between
the parties hereto, #4,500 to each of said parties; that said
safety deposit box company be ordered to allow complainant to open
said safety box, and in the presence of defendant, and any of the
officers of said company, draw out of said box the sum of |5,500,
and leve the balance to be drawn out by defendant,
The court, having heard the testimony of Fred Holy, the
intervening petitioner, also finds that he rendered legal services
to the defendant, and that such services are reasonably valued at
llOO; and the court ordered, adjudged and decreed that Winifred
Hitohoook pay to Fred Holy |100» within five days from the date
hereof*
From the record in this oase it appears that on November
3, 1933, the complainant filed an amended bill of complaint in the
Circuit Court of Cook County, against the defendant, his wife, for
divorce, on the ground of cruelty. From the bill it appears that
the parties are the owners in joint tenancy of the premises located
at 3307 West 65th Place, Chicago, and, among other things, that the
complainant has been in receipt of a substantial income for several
years last past, and maintained a savings account no, 668028 in
The First National Bank; that all monies deposited in said aocnmnt
were monies earned by complainant and monies Which were the sole
and separate property of the complainant; that for convenience the
aooount was maintained in the names of Wiley and Winifred Hitchcook;
won 000«U:| 9i: ogJNii*® ««i:?JG->.
a««v*ecf i)et)lvib xllt-^- a-o-ffoo x©^ ti:»pqaa i[3f"»t^£; fiA»»so'i »iljr ui
'5if's tAfJW- jsei: . :0S»*| tO;r»i:6)C!; 8ei#twiq 9^Jit
Bi&b 9di te.O'Ll Bxat avilt alsiti-'? mOOlM xl^ fcsT? ort x*Q iooeil^lH
3-*iff4" ©■■•
:5.0J/9;
» V.f I*it/'i■
tloe «iW '•tow rio'' ""r.,-
-, ^J^aa #KeW T0S5 *J5
»./■-,-••- 1,, ?■.•.:■ f-,.-Y.- ,,_, ., j-8.f)i eiu>«t
;3rooorff>?iH liorilJtltiVi bUB \<ilt ''■- "»as8fl ©riif cl JE>»fii s^J-ai^B «£* ^-flwooos
5
that the defendant made no contribution whatsoever toward the
aooumulation of the savings account; that in the latter part of
June, 1932, the aooount was in exoess of #11,000} that ooaplalnant
withdrew 111,000 from said aooount on Junue 34, 1932, and deposited
same in a safety deposit box in the Foreman State Safety Vault
Company; thn.t said hox is held in the names of both of the parties
hereto under an arrangement whereby neither has aocess to the box
without the presence of the other; th-t s^id |11,000 is the sole
and separate property of complainant, and thst defendant has no
interest in said sum whatsoever*
To this amended bill the defendant filed an amended
answer denying in general terms th^t the complainant is entitled to
the relief prayed fort
This caviae was finally reached for trial, and before any
evidence was heard by the Chancellor, he entered the following
order upon the request of the complainant:
»This cause coming on to be heard on the trial of said
cause, the same having been set to be tried on the 27th
day of December, 1933, and Leslie H» Whipp appe^^ring on
behalf of the defendant, and John F. Groves appearing on
behalf of the complainant, and the said John E. Groves
having made his written motion to dismiss said cause;
It is ordered, adjudged and decreed that said cause
be and the same is hereby dismissed at the complainant's
costs, for want of equity*
Enter: Q. F. Rush,
Judge*
0«K*
Wiley Hitchcock, «
Subsequent to the dismissal of complainant's bill for
divorce, he filed his bill of complaint on Febr\iary 3, 1934, in the
Circuit Court, and, upon the issues being joined, the court entered
the decree of January 25, 1935, declaring the signature of complain-
ant to the trust deed to be a forgery, and entered an order for
solicitor's fees, based upon the intervening petition of Fred Holy.
These oases, which have been consolidated, are now here on appeal
by the defendant*
erf* M''i!iro:^ Tgv©oa3-,ari?r tmitsjdiz^aoG on siwiffi taiibn^liti sit
s:^air.He Bsit to aoii^sLumsotts
tJu/jBV ^*9l\ee arf-.'-'^d-g n.EiUQTO''? arft ni xocf i'-iaoqai 'C<*"®'^ '-^ Mw»8
^aitTCw «i£rt to rf*od Trc "^ "; jS- ixa^qaoO
b9bn&tL9 n£- bBlil in^baoleb &!ii lild b&baBme, stdt oT
o* bf>ima^ Bt iaBalBlqiaoD ©d* Jr-rf^ ewisi- ist&a^g at saiipx®l> T«w»ii^
gniToIXol: o/iJ bs^ed-ira ori tioIXsoit-sriO erit -^cf btB^ asw ©oaeJblv*
: ifiStjpnJtjsXqflioo ©il.t la &a^isp9r »d* noqxf i»£>to
blfiB "io Isilii edt no
n J
r^io BixfT*
b
^9'sbui,
•At at ^JP-fX*! « : x^jM/icf
•rot T»fcto rwi be-ra^r
•XXoH bB'x'^ to rtoiifirf^sq
XfiSq^'iR ao 913
♦2.0
siffielfc Sri* o* $i%9up9et<iuB
ieXaiBC'. ifl l>«XxT: 9rf «90iovi:i)
'^«i) ^cirr* »rf* o# tan
<a(59t a*TO*ioiXoi
,^ 'BRO easrfT
• #0j6Jbii&%sJb Sri* xcf
OUT; si -
«i;»*fil>iXoaiIOO a99(,i
6
The point is made by the defendant that dismissal for
want of eqtiity of the former divorce proceeding instituted by the
ccMBplainant is yes adjudioata as to all questions decided or which
might have been decided in that proceeding, and therefore constitutes
a bar to the relief sought by the complainant in the present pro-
ceedingt The defendant cites many decisions of courts of last
resort upon the question of the application of the rule of res
adiudioata. the latest of which is Webb v. Gilbert. 357 111, 340,
wherein the court saidi
"lies judicata has a fixed meaning in law. It embsaees not
only what was determined in the earlier proceeding but
covers any and all matters which might have been presented
and an adjudication thereon determined in such proceeding,
{Rop-ers V. Hlggins, 57 111* 344; Bennitt v. Star Mining Go, .
119 id. 9; Lusk v. City o Ohioago> 311 id. 183; U^irie Ohuroh
V, Trinity Church. 353 id* 21; Bailey v, Bailey. 115 id, 551;
Godschalck v, Weber. 347 id, 369,) When there has been a
final judgment or decree neither party thereto should again
be permitted to relitigat« by undertaking to change his
position in the case and to force his adversary again to
defend against the same matters and matters collateral thereto
as were properly involved or might have been brought forth
in the prior litigation, nor shovild the time of the court be
taken in considering and deciding issues between the same
parties involving the same subject matter where there has
already been one final decision, which is still in full
force and effect,"
In that case the court held that the rule of ires judicata ^as
in a proper case,
applicalsile/ and it 1b for this court to determine whether the facts
in the instant case are such that the rule would apply.
The defendant also seeks to apply the rule of retraxit in
this court, and quotes from the case of United States v, Parker.
130 U, S« 89, as follows:
"A judgment of non-suit, whether rendered because of the
failure of the plaintiff to appear and prosecute his
action, or because upon the trial he fails to prove the
particulars necessary to make good his action, or when
rendered by consent upon an agreed statement of facts, is
»9tijt±tttaoo &ToT-=^';--'rf.-i bns ^gniljsaeoaq tBfii ai b€*blQ>fib noarf sy«i4 td^la
,0i>5 .III 7ae .;t7?oXiO -V cfcfaf ?!i rfoicvi to Ja^^f'. .. . >tg.oii>jLyfcAc
^:.&x. ;•■ iiifoo erf* ais'isi^w
J; ^:^ 9ff# PLi fe" J
f^'-.:!^^ , .. .;. ;^.,.: rfolriw aies '■>
JL .,..!^
.'- I.
f ■ i- f-r-.ift - -:•.; ■■ ■■,■••-:- : <L
iitf: CIS. , ^R
,-, --:-' -.r -'v>q
7
not oonolusive aa an estoppel, loecauae it does not
cLeteraaine the rights of the parties."
la that oaee the reason for the applioation of this rule is olear,
for, as stated in the opinion, its applicability miiat be determined
frcMi the facta as they appear in the case. The court said;
"the judgment was rendered upon the evidence offered by
the defendants, which could only have been after the plain-
tiff had made out a prima facie caae. That evidence was
passed upon judioally by the court, who determined its
effect to be a bar to the csuse of action. This was con-
firmed "by the consent of the attorney representing the
United States, The judgment of dismissal was based on the
ground of the finding of the court, a a matter of fact and
matter of law, that the subject-matter of the suit had been
so adjusted and settled by the parties that there w«?s no
cause of action then existing. This was an ascertainment
judioally that the defense relied upon was valid arid
sufficient, ajid consequently was a judgment upon the merits,
finding the issue for the defendants."
The court before whom the divorce proceeding was pending
did not hesr evidence on the trial day, and therefore did not
determine the effeot of the evidence on the rights of the parties
to the litigation. The order of dismissal was not based upon a
finding by the court that the complainant was without remedy, nor
does it appear that the litigation as between the parties was
adjusted, ^e are of the opinion that res adjudioata is no bar to
complainant's action now pending*!
Upon the trial of the divorce case no claim was i»ade that
evidence was offered at a final hearing, or that the decree of
dismissal adjudicated any of the property rights of the parties.
While the |11,000 aooujaulated during the aw,rried life of the parties
was at issue, the parties were chargeable with the obligation of
the trust agreement. In this connection the oosplainaBt oh'^.rged
that hia name had been forged to the document, and, in addition,
that pages had been substituted over his alleged signature. The
rule of law, which is supported by authorities, is that the complain-
tfofi 690X5 tl aaif^o©<i ^Xsqqoc^B» a& cijs ©TiewXoiioo tea
^ m9i&iitsia 9rf* to ©trfgia: erf* twsJjrjstaJb
i>o«iffirre:r«f) ad" &uvm YifJtXicfBOi:I«iq/? at! t.TerJtoXco 9rfc^ ill betf^tm ob ^rdi
arf;f /;
nssKJ r
oxi
.flij^aacr
ooia eo-rov.
too hlh fi'j-o1:«i7&x!? bn
a©l#Ti5q ...
ion ,^eBij- -i.. : .
■ • >oir©fcJ:v?% TBOri 4'oa Jbii)
v..,.*.ii«Xqat©'.
^iCf j|ni£»nil
BaX;*!^ &il^ lo T^Lx-v i-.yx,- & aift sixXtxdb i>©#rXamiroo.<^ 000, XI|. <Kf* aliilW
^o ooX^fsXXcfc -■'' ^"■^" - '-asrcjailo ataw soI^t^q arif ^ausax *a ««w
ariT .«Ti/j;i. '..4.- vi »*»!fX3'BCf«8 H©*'' ^^iii-
8
ant may dismiss his bill, •vcn after the ohanoellor has announoed
his finding, but before a decree has been entered. In the oase
of Williaas v. Breitung. 216 111. 399, the court said:
•'The complainant may dismiss his bill even after
the ohanoellor, upon the hearing has announced his
conclusions, Cgurdy t. Henslee. 97 111, 389,) • ♦ *
It makes no difference t,h«t the decree of dismissal,
entered by the chancellor below, is to be regarded
as a decree dismissing the bill without prejudice • ♦ •,
But 'it is not regarded as prejudicial to the defendant
that the complainant dismiss his own bill, simply
because the caaplainant may file atnother bill for the
same matter' •" (Bates v. Skidmore . 170 111, 333,)
The law is so well established that it needs no citation
of authorittet - that when the oourt has considered the merits and
entered a final decree determining the rights of the parties, the
law of res adjudicata will apply ^
The defendant calls to our attention the case of Maffenbier
T« Gearhart . 357 111, 315, as having a bearing on the question of
the dismissal of a case by the oourt for want of equity* before a
hearing and final decree. From an examination of the authority, it
appears that the oase had been referred to a master and evidence
submitted \Sy the defendant, eren though the complainant did not appear,
and when the case was heard by the ohanoellor on the evidence taken
before the master, the chancellor dismissed the bill for want of
equity* In that oase the question of the application of the law of
ref adjudicata was material*
One of the important questions to be considered in this
litigation is whether the so-called trust agreement dated June 26,
1933, was agreed to by the parties and is a valid, subsisting trust,
revocable only by oonsent of the parties thereto. The agreement in
question is in these words;
"June 36, 1933,
"The money In the Foreman-State Safety Vault Co, safety
box belongs to Winifred Hitchcock and ^ilej Hitohcook
•
:bir.p, iiijoc , &;£ .ill »X8 ,-^ur^i»-j^ «y aatfjilHW, lo
1:9*1:?^ iC- ..■..-. 6ii^ f
* * * (.eSi .III ' : . -
:, s^ 0* sx ,viroX9Gi TCi ;f^
.♦ " iq ^i/or':^^' rixd' '':';:? __ ._ :>s
BAi rot Ilief iSfftonje rpodd
(.S?;<: .III OVi <,a^:^;;^-:— ,;.,, «v ^. - ,.., .',..... aia^s
galGna'il t.-, ..:v 3g,e.o enJ .......... a ,J J- is iijro ot ftli.ec »..« -.^...^isi) arii"'
1© /lol^saup erf* ffo iflXxisad g '^aiv&fi ra ^iJX® <1'T '>''^c « #T:jgrit<qO •▼
« •T0l9cf ,Y*il^P'5 to tltBW '.tor +'^'"^'- *?<*• -'^^ «- - IjSfiBll8«Xfc !«£<»■
lo *nBw tol Hid 9di boetttsiBib 'xeXXena^il© aii;^ ,^s*ia»« 9dt •tOlMf
^iAH9&m ti&v g^t%iitm*tM MSI.
;nuTc.^: f.>i-'5jii* ctt el noX^fatwrp
X#«l?8 .oO i-Xupv x^slsfe eiea-a-iijiBsao* »A:t at xmom ««1T"
and cannot be touched or withdrawn without the consent,
presence and signature of both. This Eleven thousand
dollars in the above mentioned safety box is to be held
in trust twenty years for the above mentioned persons so
they won't be destitute in their old age. If we (Wiley
Hitchcock and Winifred Hitchcock) decide to break this
trust agreement at any time 1/3 of this Eleven Thousand
dollars shall go to each of xis. lAhen the above mentioned
persons decide to withdraw this Sleven Thousand dollars
from the safety box, it shall be deposited in some bank
chosen by them and deposited under this trust agreement.
In case either Winifred Hitchcock or Wiley Hiteheook
should die this money shall go to the survivor. If both
Winifred Hitchcock and Wiley Hitchcock die before their
■oa Aaron Hitchcock this Eleven thousand dollars shall
pass, without process of law to their son Aaron Hitchcock,
(Signed) Winifred Hitchcock
(SEAL) Wiley Hitchcock"
In this case the complainant testified that he did not
sign the alleged agreement, and that the only time he saw this
document was on or about December 9, 1933, when it was produced
before Judge Rush in the divorce proceeding between the complainant
and hia wife* The defendant testified that the agreement was in
her own handwriting and was signed in the kitchen on a small break-
fast table by herself and her husband, the complainaiit, and that at
that time no other person was present. The son Aaron also testified
that he knew nothing about the preparation of the document; that he
was not present when it was signed; that he knew his father's
signature, and that it was attached to the portion of the dootuient
lost by the witness^
It was for the court to |».8S upon the credibility of the
witnesses in l^la case and determine from the evidence the weight to
be given to the testimony* While the evidence is conflicting, the
court passed upon the facts as they appeared from the evidence, and
In this court ©f appeal we will determine only from the evidence
whether the decree was against the manifest weight of this evidence.
If it is evident frcm the record and clear to the understsinding that
the decree is not supported by the evidence, it is then the duty of
9
cr>
I
•i
.5
^,
:fi.'
i "^ '
ai '
.,.-.>.
li.i'^- J . «
:■■ f':-
' ••rC'i
TisjiiS- ei:!
ilKifS El.-,-....' ...«-.....,^.-,.- =.^,..*^, i:,,.,^
V-
::^ooodo;tiH ao-rnA ito« •jle^di' o#- 'iffal lo at
t
' 1
bBcxubOTc: - • *' — '■■■■ ,-''••'■ /? 7^a«t>eQ txiodg 10 ne gitw ^aeai/ool)
-^ssTcf IXifflia j3 no n&xfoJx^i ^^n,t ai h&sr^Xa stw Jbfi^ .v,n.c</xx«Jbifl:iJif mro lii!
f>sill#8»* o»X^ itOTitA nee »rfT ,*fr&8S'rcf ssr? iKJart^g xsdto ofl ©alt ^jBili'
«rf# lo \ti£ldJ:b9xo '^at rtoqn asjsq o;J &rsiot> tult tot 8*ir *I
•/ft ,^i*oiXlno« •! »tia»fcJtv« art* eliriiff #Yflo«'-^*ft»* *^J^ o;f rtftvlg »tf
titi!^ ,eoiidftlr© <i/f* jWBtt fe^TjRa^qjs Y»if* o/^ ei^3i»Tr ad* «©qir ib»B8J«i tiuo*
••a8£<iv8 9if* ©©"il yX«© nttkmt^tnb ItJtm «w Xo«;"^o* to frvoo airf* Ml
rrafcXr* «iri* \o Jrigiew ^esllnjaB 8il* *8nli«si« nepn 9BtC9b 9iit i^df9d^
ijsiii ^tbasitx9bav 9tit of tb8X^ fit isoTt *a9tiY8 aX *i ?H
to x^ub 9x1* n»rf* 81: *i ,80fl»ifcXv» ©do T{tf Jbe;fToqqif» *Ofl B.I: deioal) ©d*
10
the court to reverse it. The authorities hold that the Appellate
OouTt will not interfere irith the finding of a lower court where
there is a conflict in the evidence, unless such finding is clearly
against the manifest wei^t of the evidence. This rule has been
approved in so many cases it will not he necessary to cite any of
theai«
The method of service of the alias sumoions upon the
defendant is questioned on the ground of fraud. However, this
question of service was considered by the chancellor, and evidence
heard by him upon the alleged taotios of the officer who served the
summons, as well as of the attorney for the complainant, and he
decided that the sximfflons was properly served. The chancellor haviig
arrived at this oonolxision upon the evidence as disclosed by the
record* we are of the opinion thst he did not err. The appearance
of the defendant is in the record; therefore the court below had
jjurisdiotion of the person and properly proceeded to pass upon the
questions involved in this lawsuit*
The defendant complains that throughout the trial of this
cause the conduct and renarks of the chancellor were such as to
demonstrate his inability to impartially weigh and determine the
issues Involved, and calls the attention of the court to excerpts
tTvm the record of the remarks of the court.
A party to a litigation will not be allowed to take advan-
tage of his own wrong, nor to oompdkiin of the remarks of the trial
jtidge as error when such remarks were induced by his own conduct.
To be allowed to do so, would cause the opponent in the case to
suffer the consequences of the misoonduot of another. This r\ile
has been redognized and approved by the courts in this state.
Br»An ixssoT) t^;so.. .irtbci'J: 9tii dii
.0 Ya< «#io otf X'ifB&oo^ii 90' ton Iliw if;
01
f«BTOtqq«
■ 9A bits ,*nj8ci-^XcrE00 ©rid^ g:ol ^n^ot;fj?
h .£i • oiecf ixu- . _.-.j ^. ; '>3t
tti «f ' 'b Sri* lo
»J^ S3 ifcrsre ex&w io^Ieftift«r(o »4(t- Ito «:^x«/sm: fees l^mitooo .... .
II
.MSM/ V, iMiSJb l^ ill. ^»». M«| ^^JUifii. Y. aaUte.. X«^l 111.
Hi. iijrn, inN» « i?ffl»wi« la 2S8 III. agl. -hill* tli« «««f'n~'? »t Us,
hf «xee3rpte f»»)» %Im r#^Nl, «»sll.«4 mar lattc&tieit) to l>1i« l-;»ag»it.g«
ef tki9 ee^dft la wmfiaemmtAtm ^«y ^urini^ %ii« ^ouf^v* of tlit* trial ff«t
«on(l«iet* mw tmu^timt Mm fi»% 1»#«st frop«rly eell»«i to tli« v'!vurt*«
&tt«iKti»s$$ tlNer#f«r», i£^ t^« ftl>««WjM Gf etMHi •▼tdettett, %)»# rm^.Tkn
•»ttld iH3t ^ fiiida»i<l«74%jrl &t#|tt#iei''»l»
Ift t^ift |»«>»««@diiig tM lkm.ii!%sm ^^ «vi4«tte^> K- : v^! nr.
&, «1l%ft0tll9'jr^ aaa in i»^i$^i»it uisofi «1|« fa«t« t)i4»T'» !« «i<»tHi»0 &»
tli« r«4a?iS «lil«Ji mmwXe. i»'n%jm%m fte-s Ito ehBiMieller »«• ©> rti.«l,
^fi |fc:*t» ©ftiiatiasfi ift« «f'-««i* ttt?.! «« •i5a«i?s.«»f i!RT5oyt-?-«t
^msmi^ tht a^ci^ 0it«Nl tsy fli« p^^i^^- 1« thi« litlfatton, Hjid^ frwi
»-ar ip|,«?»-« m%-::fipmwm» '■ li#»€l», ®,3P« ®f t)ui 9:»imif>tt th^^t tlto a«urt
iidi m>^ *SPf ift ettt«r4llg: tk« 4^^wm'^, Tist^y for-' tfe» ^^o^vra • 1«
rn V 1 ^y^%ij,i^ ,v sTa^ii??!^' ji^i .tftw' .rrx sss?f ^m.^^^ •* itltltf
38393
III RE PETITION OF FRED HOLT,
WIMIFRED HITOHOOOJC,
Appellant*
OOOK (foUKTY.
28 5I.A. 5 86'
UE. JUSTICE HEBEL DSLIVEHEO THE OPIKIOM OF THE OOUOT.
In determining the issue In this case we shall consider
abstracts and briefs filed toy the respective parties in oonsoli-
d-ited oases Nos. 38393 and 38393,
This proceeding is baaed upon the intervening petition of
Fred Holy, who appeared as attorney for the defendant, Winifred
Hitohoock, in the proceeding entitled Wiley Hitohooolc versus
Winifred Hitcheook, Case Uo, 38393* ^ a hearing of the iaterreB-
ing petition, the court entered a Judgment for the intervener for
legal services rendered his client, Winifred Hitchcock. From this
Judgment order the defendant appeals.
The petitioner, in his petition, on which his olaia Is
based, states that there was no special agreement of any kind
regarding his fees, but that Winifred Hitchcock had agreed to pay
reasonable counsel fees, and therefore petitioner prays that the
petition be set down for a trial at an early date, and that he be
allowed to prove his fees for services rendered, and which he will
still be called on to render for the defendant, Winifred Hitchcock,
in the above cause, and offers evidence as to the value of his
services rendered in the proceeding in which he appeared, and for
such services he regarded the sub of |700 a reasonable fee.
It appears from the record in this case, however, that
during the course of the trial in the case of Wiley Hitchcock versus
Winifred Hitchcock, No. 38292, this petitioner was disoh^rg;ed by the
were
defendant for reasons whioh_y ' at th-^t time st=>ted; that his services
.YT-au
'd O G eA.I ^
»8«iX9q(jA
sesse
MI
IW
- =»Tn:etf:.
Jb/xl
.iooodio^tU l)»Ti
■ sroiTSu^ ,m
..ocoAoil' i>':':.'li. , •.fcfl0ta£» off..
St a'sob t9u »<^ aottitBq
£>it»7 oif £co £>eXX«o ftcf XXi:#e
fiiff to ouX
i-?-^ ni:3l:"iQ ban ,,de«jBO tTOOfis 9d* al
8TSW
Jr-tif tjf, ^\jA»itim aaoBs^t to I taiibatt'tub
were continued by the court and his withdrawal denied. It ia our
opinion that in this the court erred; that the defendant hnd the
undoubted right to discharge her attorney, and if she wished to
continue to act in her own beh-^lf in the trial ehe^had the right
ttXidcr the law to do bo«
fhe St' tttte regarding attorneys' liens, Ch, 13, Par, 13,
Sec, I, 111, State Bar gt^ts. 1935, provides -
"That attoraeya at law shsll have a lien upon all claims,
demands and causes of action, including all claims for
unliquidated damages, whicri) may be placed in their h&.nds
by their clients for suit or colieotion, or upon which
suit or action has be n instituted, for the aaount of any
fee which tiey have been agreed upon by and between such
attorneys and their clients, or^ in the absence of such
agreeaeat, for a reasonable fee. * * • Provided, towever,
such attorneys shall serve notice in writing, • • »,»
It appears from the recordthat this petitioner did serve a notice
In writing of his claim for a lien in the proceeding in which he
appeared as the attorney* The court in the -'djjudlcatior of the
amount due such attorney from his client shall enter such order and
enforce such lien as may have been established. The record doe- not
show that the proee ding was for the purpoBe of eBtablishln, b. lien
for the amount claimed to be a reasonable fee, but rather a suit
between attorney and client for the purpose of recovering- a reason-
able amouiit for services. We are of the opinion that it was the
intention o' the 1 glslature, in passing this act, that attorneys
In lltigationB In which they have betsn retained should have the
right, by petition, to have the court fix the amount of their fees,
and thereby establish g lien upon the cl^ilma, demands and causes of
action In their hands by their clients. This did not apoear to be
the purpose of the claimant by hie petition, here, however, there
Is a dispute between attorney aan ollent, as in the instant case. It
would seem to be the proper practice for counsel to institute suit
for recovery of fees earned in the litigation, so as to five
the contending party an opportunity to appea and
make his defense, .hile it appears thot the evidence
Ti/n ei fl .fcalaafc lAmmibdit^ Bid tms t%acQ 9d& yd b^uaitnoo
tAaii 9dt Ssrf'srfB I •iii' sricJ iidcf tno 't&ti at ioB oi 9aaltao9
t>fl«r tafeio rioW" T;.i-xT vtsaiXo »lt{ y.ort xeaxotin dsun 9Sfh fauome
tor . . i^m ©a a&il itM» no^otflfi
iSr-i.: iriaiXd.Gtaa lo s^^ocrxxrc. ■ -^ \%ath' »oot<:. ^t ti^t wodfi
eri# acw .' . ©oXvic®© T.0I ♦(iooaiij ©Ids
9t**^o^'' ''■•'•d.-; , ' ^tftBnB< , i;d-.stX»J§( X add- so aoi*«»S-ffl
•Kt ev^d M rrfp fttjnl^* ;^rft tfd^riw Hi li«oi#it$i^iJ: aX
, :.el al©ri:r ^:o *ao' hbji »d* xi!t *ai ,aoj:l'*#eq ^d ,irf?ji'S
to ««exffie Sam afcap-asb ,eml'Xo od* il e d»iXd«*«» t^^oted* ^«
•<1 o:r #00 f>t6 aldT ,et*»*f Xd T/or/* xd eftisuMf «i»d* iri «oi#oj5
;M ,«eAo #n.«5*p.nl *da , ,i ,i^ ys-mo*** a?»wt»d »ttf^lf» « at
#iw8 •*ir#X^«rtX o* X»<»fl«oo 10I ©«»^ tsao^q •dj' »d o* ai©e»8 feXt/cw
•vis o^ fi" OK ,aoi*;'J5lt/X »d* ni fceniKe «i»©t 10 Yt»vood« tol
ftii.' tJSoqpfM •# xiflm/'jfrto^f.o «« x*"^^Of liui bxi»*noo td*
•oaei»lv» ©d^ ^^Aoa ^^■,:fr:' 9lia^ .•(t«st»b aid sijfia
3
of the attorney wae heard over the objection of the defendant,
Winifred Hitohoook, before the oourt without a jury, we are of the
©pinion that the court should have dismissed the petition without
prejudice. From the facts disclosed by the record, the petitioner
can not upon hla intervening petition maintain his suit filed in
the litigation then pending*
For the reasons stated, the judgment entered by the court
for the sum of llOO, should be reversed, ajid under the oiroumstanoea
In this oase and the construction we have placed upon the Attorney's
LKiL Aot, it wl3JL not be necessary to remand the cause for another
trial. Therefore the judgment Is reversed,
JUDGMENT REVERSED.
HALL, P.J. AND Q1II3 1. SULJIYAN, J, OOHOUR.
5
un
S8316 / Z^ .^"
ROTH i4. MORTELL, Administratrix of th«
Estate of Oyrll J. Quail, Deceased, ^,
Appellant »
▼•
GUY A. HIOHAaDSOM and WALTER J, OUMMIMOS,
as ReoelTers, et al«.
PSAL FROU
SUPERIOR COURT
COOK OOUHTT.
Appellees*
28 5I.A. 5 86^
Ml. JU8TI0S HSBEL OSLITSRED THE OPIHIOK OF THE COURT.
Tlie plaintiff, administratrix of the Estate of Cyril J,
Quail, deceased, has appealed to this court from a judgment entered
by the eourt for the defendants upon a directed verdict, wherein
the court instructed the jury to find the defendants not guilty.
This action was based upon plaintiff »8 declaration con-
sisting of one count, wherein it was charged that plaintiff's
intestate was crossing Clark Street from the east to the west just
north of Waveland Avenue, in the City of Chicago, and that the
defendants so carelessly, negligently and recklessly ran, managed
and controlled a southbound street oar on Clark Street as to strike
and injure, plaintiff's intestate, and that the injuries so sustained
caused his death*
The defendants* plea in this action was one of not guilty«
The evidence of the plaintiff was heard before the court
and a jury, and upon defendants' motion, the court instructed the
jury, at the close of plaintiff's evidence, to return a verdict of
not guilty*
The plaintiff contends that in considering defendsjuts'
motion, the court erred by reason of failure to apply the rule of
law that all reasonable inferences favorable to the plaintiff must
be drawn from the evidence and the circumstances surrounding the
accident at the time of its occurrence, and the facts are to be
accepted as true* Walldren Express Co* v, Krug. 291 111. 472; Yese
▼• liSl* 355 111. 414; Hunter v* Troup> 315 111. 393«
^tn»LS.
THWOO v1
0 jK>or/
- '^ O O
• ssoilaqa^^i-
\=^
»«n:Jt^clsX<7 .t.Rri:f t' , nvo» »£t© "io sni^ala
L'l tasw «xfj 0* ;}"C3S fear ihoiI S-e^'i<i'"tf :gij;.i.w auiegci:* ajw ©^fe^asi'fli
84^ ^Bfl* 6fl« ,O3J^,0ii{C to x^^^ «^* ^^ »f5i;fl3vA JbasI»v.sW ^o £fttoii
^ilt»Bb mid. Jb»axr»o
#^tfoo t>di^ 9T0l©cJ Mjseri sbw t'ixtaljtXc; etiti io so«»i>ivo «iiT
toibTifTv .? in:w*f>t o;; ^aon^fclva B'lliJ-«i.«Xq to »Bt»Xo »rf;t ;tE ^x^uf^
,\Sllu^ tea
to •itn •((# Y'Kt9[<lA ot •!£/. -:juoo ftii;f «noi^o«
^8UB lli^ai^ic '^at oS oXcf«T07Vr eeoxie-xi'l'jiX sXo^noeuBarr XX£ ^-^xl;^ wjbI
8d^ ^Ti6ncroxTi/e «Boa£SB^a^ox£o 9iit ban ooct8i:>iv» »xit noxt awMxb •tf
•(f 0^ Br» Bio'i.'i oidi (it' «aoa@a-ixyo&«p uti io asiicf ft<i^ ^« :fa»bioos
BdOT ;ST* .XXI les ^^uruL .v >»0 oeft'xax^^ i^^gTOij-a/ m»irti euj l>e;rqeoojs
3
Ttii« facta before the trial court were tliat the plaintiff* e
Intestate Oyril J. Quail, on the night of February 38» 1933, tat
employed toy the City of Chicago as a fireman. At the time of his
death he was a widower living with and supporting five children. On
the night In question he was walking west on the north sidewalk of
Wavdland Avenue In the City of Chicago, with the Intention of
hoarding a southbound Olark Street oar operated by the defendants
at this point* When plaint if f*s Intestate was about 8 or 9 feet
from the east curb of Clark Street a southbound street car was seen
approaching 125 to 150 feet north of faveland Avenue, at the rate of
36 miles an hour* At this moment Quail started to run across the
street on the north crosswalk directly west, when he raised his right
hand to signal the mtotorman. There Is evidence that the motorman
threw off the switch and applied the brakes, which slackened the
speed of the oar* Before the car reached laveland Avenue the speed
was Increased, without the ringing of the gong on the car* i|uall
ran on and as he did so he reached the center tracks where he wna
struck by the left front of the street car* The car passed over the
crossing, and the rear end of It was beyond the south line of t'Mveland
Avenue when It stopped.
The injuries sustained by (}iiall In this accident caused
his death* The street car operated on this ocoasion was a front-
entrance-for-passengers oar with the conductor located in the center
of the car* The headlight on the car was burning, as well as the
lights in the interior of the oar» There is evidence that on the
WSLS
night in question the intersection/lighted* As this car approached
this intersection from the north, the motorman could be seen in the
car 75 feet north of ^"^aveland Avenue, and at that point the car was
running at a speed of approximately 35 miles an hour, when the
motorman made a motion as if to control the speed of the oar*
s
ttO .ae^Mirio svll: ^nl*' •*iw sniviX tsw©£>j5vf b a4sv 9ii iditAUb
0 iii'wfti)ia iftTOfl ^ -gaMlBis bbw mi aeiteaup ai; td'^tn »rft
nssa ■ .&ni/o<:frf*,mi(a b $&Brt^< ::^x«l ^a-e® off J" ooitl:
.:'*et 9ri , ^9^1 061 o# SSI SfiirififlOTtgqjj
««£«• ■aso^tm aai ncl- fietTs-: ^'ftfisso- , .;- aaXlfii 9S
aBOitoiom 9d'^ ir^d^ eonei;.:' . iS..^!^iot&m ari* Xsngia o* bOMA
acf* fcanaiosXa rfolrfw ,. -ijt:Iq(?s Jba« dojjtwa ad* ^lo watrf*
ajsw erf atar:. ,^ojb ;' - i-'i- "-^a/fenort ari oa Ijlfc ad as im& no asT
ail^ 10VO feari? . • sstte 9f(* Tro J-ao^ *t9X fudf vtf :iowT3'8
iifliX dtVGf ed* ItttoY®' il* ^«-8 ^^niaaoio
.50 c? 0*8 ti nsrfw ojtmavA
-taoi'^ noiBV.DCi. .d-«*rarns Tfto jhi^aiife ailT .ri^aal) aid
•jatftao arf# nl *a#j«oor r^^ttbnr • «-!3q-»©t-©onaT*aa
9ff* ai? XI©- c . v rfs'> #»{siX&^i0if Drff •««© arft lo
arft no t^.rft «»a•^/■^a e.t eiarfT #rE'>^ ■ loitntrtl 9ilt at fd-ifgll
art;f /li n<=>3S erf AIuc- t " rtol&n^nxBfnl elrft
8.RW 1 '^' -^liif taiori ■'' In • ^»w««vA foxi^It' . o,t'j:on n^sal 6V t«o
•Tso arf* lo fcaao iTOitt> . anot©«
3
The BUtborlties all agree that the attempt of the plain-
tiff to past in front of the morlng street oar was not of itself alont
contributory negligence. The question is: Did (^uail, as a reasonably
prudent man under like oiroumstanoee, in attempting to pass the front
of this oar as it was approaohing, put himself in a position of peril?
In the determination of the oase we must consider the
question of the distance of the oar from plaintiff's intestate and
its speed of 35 miles irtien first observed, and also the fact that
the car slaokened its speed and then iiamediately inof eased it up to
and running across the intersection, and then oonolude whether or
not the court erred in not submitting the facts to a jury.
The faots are not seriously disputed that the oar was
lighted and could be seen coming frcar the north 135 to 150 feet away;
that it was traveling 35 miles an hour whmn plaintiff's intestate
appeared on the northeast corner of i^^aveland Avenue and Clark Street}
that he was facing west when the street car approached within 75
feet of Wavelaad Avenue, and after signalling, ran in front of the
oar and was struok*
^hat happened is best illustrated by the testimony of
the witness Richard Thomasius, who wa.s present and saw the occurrence
from the time «4uail started to run until he met his death. He
testified that hi was a Division Marshal of the Ohioago Fire Depart->
ment, and that he had known plaintiff's intestate for about ten
years; that at the time of the accident he, Th(»iasiu8, was at the
northwest corner of "saveland and Olark Street, mailing some letters,
and was facing east; that he saw plaintiff's Intestate, who had been
at Thomasius' fire station, situated at 1052 Waveland Avenue, coming
west on the north sidewalk of W?veland Avenue. Thomasius said:
"^i I saw the man running across Olark street he was coming
along on the crosswalk of Wavelaad avenue crossing Olark
i
©is \1.9!^ii to ten 8:« ibis *©»**» galiwwi |k4<^ %<? tffczt iJ| aft«q o;f I'tli
Ix9fq to fssiiiBOy e at 'iX^Birr ^afjirfosotqq^ a^/' *jt e ?.ili^ "io
■A.6 •#«i*es*xti a >ltl: i^flieia ffiO'i *:o ^oa^.^'ditt 9nii lo aoi*a«J/p
t«d* tUMt erfjf o«X« JBOi? t£)sv^>?;oo ;fa:£ji is»ii» seXia d<S lo l>©»qa a^^i
•TTJ^t -'"• ot tiitumt 9M& •^iSJ^im<$.&st iQsx ax b<^%x& tt.m»9 »xf# *oa
9M^ -iBt> ©xlit cfsp'^t j:7C':tx/c,ai& yXbwo^XS'Q *«fl axi? «*»^s1: «wd1;'
Yi»w« *ao1: OeX o;^ 3£X litxoa ed* «o«^ 8«jt^«o f!ft©o »cf feXw®© &«» l»»ti(:3i:i
2V aid;^in ib®do.P50' ^ ts^i^ft 9M& naatw ;?•«»» g«io ^1 sb^v ad isdi
•ii# lo *hot'J cX rc5t j-^iitilXAflsXa it*;*?- t Wfl«»vA l>a?5X»v.n' lo fB9J
•3ftMncta 9.aff l)aa <XJ9«
toneitJjooo ©£l* WJ?8 l)xi» tflftaev rfw ,»wia.««BO«tX Jb-sisiJeifi aasaitjtw 9tit
•H .dl«59b €iil ;r«ffi «rf Xic< -©^ifs^r .'}«X* AKt ■Wl
-#T[jB<f«0 •li"? O2y»oi;riv; Sri* lo X.sd»'iJRM ixoXaXviCi b »»w *i1 i*.«rf* f)«ili*8»*
fl«# *r;odr: lo'i 9#nt«t9*ni ft »ilXtiJt«X : fiwi)' ' ^* i>as ^t^m
^hi^t^^i f>fflo« g/iiiiTja ,.to»rf r^ux^oa i^^wdtxtta
SfllAft* ^9»9»rrk bmljp^ dltl) t«iric«aM(t ta
;iaia*o mtw 0A t^t^itn Jlr.mlO n^^rn? f^nlerns-.'i: f^'^f •>■■
8treet«
The man was running in my direction where I was
standing, running straight across the v?alk, running a
little towards hia like th':>t (indicating). ?rtien the
man started running I looked at the street oar. I
saw it perfectly plain coming right down toward Vsiave-
land* No one waiting to get on«
The street oar, when the man started running, was
about 125 feet to 150 feet north of »'^vcland« I »aw
him running when he stepped off the curb. When he
stepped off the curb the street oar wps about seventy-five
feet frwi the north side of vvaveland. At that point he
was not thirty-five to forty feet east of the southbound
trade, he was about twenty-five feet east of the south-
bound track. Probably be ran right out to the car track
until he came in oontaot with the car, I do not know if
he was running at the timt he came in contact with the
street car. The street car and the man met at the track,
Theymet at the track and the crosswalk at ^eveland avenue.
I didn't see hia fall. The street ear oaae between oe and
the man«
1 observed him running, and he hesitated, and came
across the street towards me; and it seemed he threw up
his hands, his right hand, and came on; and as he did he
reached the center tracks, or I should say the east track
of the southbound road; and was struck by the street car
on the left front, about a foot froa the motorman - a
foot to the left of the motormn.n«"
In this case there was a further witness, a Mr. Henry
Mollerus, who was in the car at the time it was approaching Aaveland
Avenue. His evidence was that while he was able to see the man at
a certain point, he was unable to see all that happened on the
evening in question. His evidence was to the effect that the motyr^
aan threw off the vwitoh and slackened the speed of the ear, and
then imaedlately started up; that the approach of the oar was not
obstructed by anything that interfered with the view of anyone present;
that the lights on the inside of the car were burning, and the
headlight was also burning.
There is no doubt that the street oar was visible at a
point 75 feet north of the intersection and was running at a speed
of 35 miles an hour when its speed was slackened, but as to what
aileagc, the record is silent. The street oar, however, iamediately
resumed its speed at the time of the accident.
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J-p «i5iB ©xfi- s®-3 o* sXcfi? 8 -w sjcI aXiilw fBtit asw S€Jii8iiiv® eiii <»jLfii9"?A
9tit oo l5*«©qqB<1 I^i■£fJ IXij see o* dXtf«§iiw 8S>^, < ^oq alBtudO m
•iit bar. ,3nifln: iaai f»sii ao aJcf^iX arl* #f!ii;>'
In the disoiisslon of the law having a be?.ring upon the
attempt of persons to pass In front of a moving street oar, the
authorities In passing upon like questions are in aooord, and the
rjile of this court whioh applies* is stated in the oase of Qemlng.
Adar. V. Ghioa£:o ^^ilffaya OoMpany. et al. 834 111. App. 642,
"Where persons have been injured noting upon the expecta-
tion that a oar would stop heoause it was signaled or was
slowing down, it has been held under v=!rying ciroumstanoes
that it was negligence to act upon auoh assumption. (Welch
T. 0. 0. Hy, Co., 308 111. App. 161; Helson v. 0. 0. ay Co.
194 Id. 615; Ramsay, Admr. etc. v. Oh. Ry* Co., No, 3i772,
filed March 8, 1930; Winchell v. St. Paul Oity Hy, Go.,
86 Minn. 445, 90 «• W. 1050; Dering v. Mil, Elee. ^. &
Ll#t Co., (Wis*) 176 N. W, 343; Thompson v. Met. St. Ry.
Co., 89 App. Dlv. 10* 85 S. T. S. 181«)
It was said in the Raasay case that if the deceased
expected the oar to stop, 'ordinary prudence would have
required him to W9.it until he could have crossed in front
of it in safety.' In the Winchell case the court said
that plaintiff had no right to rely upon the motoraan bring-
ing his oar to a stop. In the Dering case the court said
where one was hit crossing in front of a ear, that when he
reached the zone of danger it was his duty to look and see
if the car had started; that if he did not look or looked
and took his chance to cross ahead of it, in either case he
was negligent* In the Thompson case the court said that
where one had crossed in front of a ear, probably assuming
that because it had slowed up it would come to a stop> and
he oould cross the street safely, he had no right so to
assume, and there should have been an instructed verdict."
Ill applying this rule, the court in the oase of Foreman
Trust & Savings Bank, a Oorp. Adpr» v. The qhioago Surface Lines, et al
263 111. App. 652, reiterated the rule applicable in a case of the
character before us, as follows:
"The rule is that failure to look before crossing a street
ear track is not always negligence per sf. but it is like-
wise true that the circumstances may be such as to make
such an act negligence, as f matter of law. Van Meter, Adar.
▼. 0. Rye. Co., et al., 240 111. App, 371; Nelson v. 0, C.
Ry. Co. 194 111, App. 615; Ehrenstrom v. 0. 0. ay. Go. 205
111, App, 583; Roberts v. 0. 0. Ry. Go, 263 111. 238; Myhre
V. 0. 0, i^. Co. 316 111, App. 128."
Again, It was said in the case of »eloh v. Ghicagp Glty
Railway Co., 208 111. App. 161, which has a bearing upon a like
question in the instant case;
9£t aoqu ■%aJ:x''Bii l. ^xilr ' Bui 'to nolBHts&ui:-
9uii bas ,i"*rfo.'' -.it'^i^-iQ'jp a^lx .10,1/ ^niii
5 .T'
idt Iq aXifi
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t'on bit
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,),8t5citl ao.i'lqira cm.gt?j:j:iP SMf'I . . . , - riflLAJ.- .
erf* to e«^'n ; rii ©Iff-^oiXqajB OXjtrr «rf? &9*i5:te:fi:«>i ^ . .Ill €dS
'+:fOx»c
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J XYo •CjijA •!
.XXI
93(1 X e nogw ^^'-:--
•Evidently she expected the eastbound opt to stop at
the southeast oorner of Aberdeen and 63rd streets to
take on the two women who stood there In the street
at that comer* • • • The testimony tends to prove that
the car wfi8> at the time, traveling fast and thr?t no
bell was sounded or signal given at or near the crossing. • • *
The evidence tends to show that the proximate cause
of her injury was not the negligence of the defendant but
rather that of herself, • * » ghe may have expected the
defendant to stop the oar at the corner, but there is no
rule of law which requires a street roilway company to
stop its ca,ra at all points upon a signal to take on
passengers; and it follows that the failure to stop for
prospective passengers who may be standing at the street
corner does not of itself prove actionable negligence.
Westeraan v, U. Rys. Go« of Baltimore. 96 Atl, 355j
WiBOhell V. St. P. St. Hy. Oo.. 90 ¥. W« 1050. »
In PJgnta V. G. 0. Hy. Co.. 384 111. 246, it was held that
the failure to ring a bell or gong to warn of the approach of a
street car oofuld not be held to be the proximate cause of an injury
resulting from a collision, whea it appeared that a person injured
had notioe of the approach of the c?r«
In Gordon A. Haaaay. Adar. v, OhiC5.go Hallways Co.. et al..
217 111. App, 646, the court announced the well known principle of
law in this language:
"Ko principle of law is more firmly sup orted by authority
than the one which declares that at common law one assumes
all risks that arise from his own contributory negligence
and th^.t where such negligence proximately contributes to
cause an injury there can be no recovery therefor, even
against a defendant guilty of negligence contributing to
oause an accident*"
Plaintiff's intestate ws,s chargeable with the duty at
the time and just prior to the accident of looking for the approach-
ing street oar, and we assume that the oar slackened speed when he
looked, and then increased its speed, but it woTjdd not be reasonable
to assume from this fact* under all the clro\imstanoes, that plain->
tiff's intestate, in undertaking to cross in front of the car while
it was still movixxg, did not take a chance.
The plaintiff in the instant ease does not raise the
question that the oar was being operated at the time at an unlawful
and untisual rate of speed. This was the salient factor in the case
or
i
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denyorni?. tvojoo frifrJ- jS^S ♦qqA ♦XXI VIS
dd a»tSm hstaq'H kf^ai^ . . , :i»^%iB 3ixi
•fJJ- ftsi/iT ton 8r«ob »8?o *a.B*s«2 »ff* ni '"^itniaXq erfT
»ei<c exlif ai to^oft ctireiXne 9£(;t saw slriT «5daq9 tc a#s^ LBtftmur AdU
7
of Loftua ▼• Qhloage Rya« Oo. . 393 111. 475, cited toy the plaintiff.
In the disousaion of the merits of her case, plaintiff,
oites, in addition to the case of Loftua v. ahioago Rya. Go., aupra.
Kelly ▼. OhioagQ Pity Ry. Oo. . 283 111. 640; Grlswold y. Chioagff
Rva. Oo»* 353 111. App. 498; and Northern Trust Oo. v, Ohioago Rva.
^., 318 111. 40Z.
In the Kelly ease, the faota disolose tliat in turning a
corner of an interseoting street, the overhang of the rear platform
©f the street oar as it rounded the curve, struck the defendant
and knocked hia to the ground and injured him. The theory of the
street oar ooapany waa that the danger from being hit hy the over-
hanging end of the ear in reading the curve was as open and obvioua
to plaintiff as it was to the servants of appellant. The court in
anairer to this contention said:
"It ia the general rule, as contended by appellant, that
it ia not negligenoe per se for a street car company to
fail to stop a oar on signal at a corner, (South Ohioago
Railway Co. y. pufresne. 300 111. 456,) and that a motor-
man may rightfully assume, in rounding a curve, that an
adult person st?5^ding near the tracks and apparently able
to see, hear and move, and who has knowledge of the curve
in the track and that in rounding a curve the rear end of
a street oar will swing beyond the track, will draw back
and avoid injury, and the laOton&an ia under no obligation
t© warn such person againat suoh opan and obvioua danger."
The oourt held that the aotorman of the oar aaw the peraons standing
at the point where the car rounded the curve and this waa notice to
him that they were there to take the oar, and expected it to stop
at that point. The faota in the |[elly case are not the sajse as those
in the instant case* The question in the instant case is: Did the
deceased in his lifetime exercise due care for his own aafety at the
time he approached the traoka and attempted to paas in front of the
street oar, when it waa obvioua that the oar waa traveling at a rate
•f speed that would not justify suoh attempt? He was struck by the
corner of the oar as he reached the tracks, %nd waa injured. The
*?yP- « .^.,„.^
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al ti
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111
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- - •• -^ri^ lo asam'TV'-" ^-■'- ^-rf* L^vu Jii/oo till
■''■'■ Jb»Jb«4W' ., =>Y.©rfw iaioq Bdt #b
. , '• "T'^^ ■':•' ^tsiK ^s-rf* JM* mtii
■•■-■■ : , :•■'— tsiil M^ al
^i*3-/ ■:■' ^iro t&9ith
OiiT ,bTultt. < L.0;ilo.;-; ■ "5:0 •ronino
rale In the Kelly ease was approved in the other two oases, - the
Grlewold oase and The Northern Trust Ooaoany case, in both of whloh
It was determined that the question of negligence and contributory
negligence inrolved in these cases should have been submitted to the
jury, and It was submitted and the judgment affirmed by this court,
and upon appeal was affirmed by the Supreme Oourt. In the instant
oase, the fact that the intestate raised his hand to signal the
approaching oar, while in the aot ®f running to cross the track in
fr©nt of the moving oar, m>uld not of itself relieve him of the
duty at that time to exercise due ©are and caution for his safety.
He did not exercise suoh care*
The facts in this case, while unfortunate, are such
that the deceased was guilty of contributory negligence at the time
aMd just prior to the time of the accident, and the court in direct-
ing the jury to return a verdict for the defendant, did not err*
The judgment is affirmed*
JUDGMSMT AFFIRKED.
HALL, F,J, Jim DSNIS S. SULI.ITiM, J. OONCUiy
{C9£f8 5
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at,
lAH
3835X
OVERHEAD DOOR COMPANY OF ILLINOIS,
a Oorporation,
Complainant - Appellant,
▼•
AOOLPH H, BDRMSTEIK, et al.,
( Defendants ) Appellees.
JASON A, IMES and DAVID RJEST, trading
as M. REST & SOfi,
Intenrenere Ob08« Appellants,
▼•
ADOLPH H. BSRMSTIIH,
(Defendant) Appellee.
/
/ APPEAL FRO
o
GIROOIT COURT
COOK COUNTY
5I.A. 5 87^
MR, JUSTICE HSBIL DELIVEH51D THE OPINION OF THE COURT.
This is an appeal by the complainant. Overhead Door
Company of Illinois, a corporation, and the defendants and
interveners, Jason A, Imes, contractor, and David Rest, trading as
£• Rest & Son, from a decree entered in the Circuit Court of Cook
County, diamisaing the bill of complaint and the intervening
petitions If or want of equity.
The complainant filed its bill to enforce a mechanic's
lien upon the property of Adolph H. Bernstein, one of the defendants.
The defendants, Jaaon A. Imes and David Rest, filed their
answers in the nature of intervening petitions, for the purpose
©f enforcing a mechanic's lien. The cause was referred to a fiaster
in Chancery, who was subsequently appointed a special commissioner,
and by his report found against the complainant and the defendants.
In seeking to maintain their claims for mechanics' liens.
Objections were filed with the Master in Chancery, and
the objections were allowed by court to stand as exoeutions to the
Master's report. Upon a hearing the court overriiled all exceptions
and dismissed the bill of complaint and the interveners' petitions
^)iOfi'« ikZ'i'U
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^tr*?* f*) P!r.I1'^T''0 ?^T' fT^'-'^'TT 7*7" T'S'r''?rr *t!T".T'^r;
■'^rtit t-^Ii^ ttc*:-' f^- "-^ fias qqh.i .- ,.vM'i; « ««-trt86«6^«Jb •«£?
^QSas>br.'9\(it^ e;!;} bnr tneitl<.eXq*oo arit tBatsr^ bmsoi *ioq«rt aid Y^f ^^^
3
for want of equity, aa we have iadionted above*
The oomplainant, by its bill, alleges that on July 6, 1929,
the defendant, Adolph H* Bernstein, was the owner of the real estate
therein described, and also known as 637-31 West Adams Street,
Ohloago« Illinois, the subject of this controversy*
The parties to this appeal oontend thst nhere an owner
agrees without restrictions that the lessee by his lease shall place
buildings or other improvements on the owner's property, he thereby
authorizes and l;nowingly permits his property to be improved within
the meaning of the Mechanics* Lien Act, and cannot be heard to say
as against a olaim for mechanics* liens that the improvement is
uBdesirable or unprofitable*
The fact is that the lease between the defendant owner,
Adolph H* Bernstein, lessor and Joseph Rothschild and Albert
Rothschild, lessees, by its terms authorized the lessees to erect
buildings and make improvements* The lessor sought to protect himself
by providing in the lease that the lessees were to give an indemnity
bond to protect the defendant owner against liens* The defendant,
Bernstein, testified that when he found that the buildings were being
constructed upon his property he went to the lessees, who told hia
that they would furnish a bond. The bond was never provided for by
the lessees, nor delivered to Bernstein*
From the facts it also appears that Bernstein never obtained
a waiver of lien from the oontractors, as provided for in the lease*
I& the case of F'ehr Const ruction Oo* v. Postl System. 388
111* 634, the court held that an owner who agrees, without restriction,
that the lessee shall place buildings or other improvements upon his
property, thereby authorizes or knowingly permits his property to
and
be improved within the meaning of the Mechanic's Lien aot^cannot be
heard to say, as against a claim for lien, that the oost is excessive
or the improvement undesirable or \mprofitable* What the court said
-iq Xlsric sbbbX Sid \id »0«»»X anf* *«if* anoi*©i'i^c*i ^fueri^iip «»»!$«
c-;^ srf ^Ys^xaqoiv'! a^ieirwo - a*ii»ffi©v©Tfl[iaX ■. SigniJbXijjcf
: ^,T,s9fl scf Joiifjuo ftflj5 »*oA a©ia »Boia£!flo6M arfi^ lo axtiiiBsa! »if#
.sXflfjs^ilcncQXiar lo »XcfjBaiiSliia«
iactaJbui . -:- . g&sX ail* ni SOiMvoiq x<*
,:^^/^iaaelaJ& ©xlY .«fl»^ 9*oaq 0^ Jbaocf
miff Mo# oris? t8i»»ea«X ft^i o;' eifi aoqju fco^oinctsnoo
» 3r.^X dd^ si tat *0MTOt;q ex; ^Biost^d^tj^aoo «4# mifutt tt^ . )vXmv s
■■'>'^. ^g»3'fv,p_ X^fOn .V ,oC aQit^o;j^Jf>fToO tii»i to 98480 i«Jl III
a^n'Sff'^ToiCfffi i^rft . i . 3B«t»X erf* t.c>At
r.-f -r^r^nc xl^^nttroai no as^iliodiua \fS9itifit ^^f^xaqortq
•c W-> =T J^'- '"•c^'?xiO'^i' orf;^ lo. 3fl;io««B »rf* /ilrttf-h? f>«yoicq.iiX »cf
Ttrno ai{:f irsrlW i,ftXtfr*i!t iaiia».aax/ ;fH8£BOV0"rq«l Sfl* xo
o ' r .
3
in its opinion applies in the instant oase, and where the owner of
the real estate permite the lessees of the property in question to
erect a huilding and make improve«ent8 thereon, the amounts due
contractors for the erection of the building come well within the
ttechanios* Lien Act*
The defendant Bernstein in this eaae oannot be heard to
complain of the desirability of the structure after the same has
been erected, for there were no restrictions as to the character
of the improvement under the terms of the lease.
It was further suggested by complainant that under the
present statute an owner knowing an improvement is being made must
object to the improvement; otherwise he knowingly permits the
improvement, and thereby consents.
The defendant had actual notice, in writing, on July 6,
1939, when he signed an application for a permit, which was filed
with the Oity Fire Department, in order to install gasoline tanks
on the premises in question*
From the application signed by the defendant Bernstein
and offered in evidence, it appenre that oil was to be sold outside
of a one story building, brick construction, upon the then vac;?nt
property of the defendant Bernstein; that in July, when Mr, Bernstein
passed this property he saw aien working and conferring with the
defendant Imes, the contractor then at work* At that time no
objection was made by the owner to the contractor regarding the
construction of the proposed building. Failure of an owner to
object to the character of the improvement then being made, is an
indication that he knowingly authorisgd and permitted the improvement
to go en to completion, and the contractors interested in doing the
work are entitled to a lien for the amounts due under the terms of
their several contracts* Friebele v, Schwartz » 164 111. App. 504;
Hagui SlgQtrio Oo. v. Amusement Pp.. ?36 111. 452.
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,.t |K£l4rt} Hi fcRtee-rsJnl tito*o t'-P'Xcfiao© ©^ iio ©3 ©Jf
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,^r^ ^ar ^^^rf-T^^i-iif'f' ;v al»d'.;i'r3 ♦«#0.«rc#fi©o X''(«©T»» TJt©<W
4
Tlie building ereoted on the premises is forty by fifty
feet, and is constructed of cement, briok, and steel, and substan-
ially built. The foundptions are from five to eight feet in depth,
and the walls are thirteen inches in thickness. This building, no
doubt, complies with the city ordinances, at least the structure
was not objected to by city officials as not complying with city
regulations*
The complainant seeks to establish its lien for nine
overhead doora, which were fastened to and became a part of the
building. Fxoa the character of the structure, the use for which
it was ereoted, and the materials used, it Is apparent that the
improvement was a permanent one*
The next question to be considered is whether the real
estate was enhanced in value by the improvement, and if so, was such
proof necessary under Oh» 88 of Sec* 16 of the Mechanics* Lien law,
which provides for proof of enhancement in value only where the
lien claimant pro rates with an incumbrancer. The evidence does
not disclose that an incumbrance is involved in the litigation such
as would make proof necessary. For that reason the question of
enhancement in value of the real estate is not involved, westphal
V, Berthold. 373 111. App* 366. There is evidence, however, that
the ereotion off the building did enhance the value of the real estate
from |6,000 t© |10,000, irtiioh, of course, includes the amount of the
mechanics* liens*
It is evident, from the fact that by the construction of
the building provided for in the lease, defendant Bernstein benefited
to the extent of from |3S0 to #400 per month rentals. It follows
that the lease must be considered by the court, which provides for
a five year term and In the event of a def«ult by the lessees, or
assigns, in any of the provisions of the lease, the title to the
improvements shall inure to and become the property of the landlord -
arid' lo ^fi-eq s &m^^&d Lr
doi£5wr xol esjy axii^ .STi/ihOiinrft
•■•fl.t nojr!
. 3TXCTB
.3fil6XiiA:;f
t ■ ■ ■ '-' '•
JnfM3J5ia*r- .mi;
.w^.. r • .if;vl--^.i' (Ton
- i-^'S *i3XpriJ-t&g .V
0»dt •»«!
1© floX^otfi^anoo »>-• <
T« ,a©*Rg»X ft-
aXJbn^i axii 'to x*^ ^tijiii XX/?xfR
.^ii9l Bit t»li&
ma ta^9t tasx •▼•^^ *
voiqatX
5
the defendant owner of the real estate. In any event, if title is
not olaiaed to the inprovement» the landlord has enjoyed the inoome
by reason of its oonstruotion.
The defendant had notice of the oonat ruction by being
personally upon the premisea at the time the work was going on, and
also by his agent, who oolleoted rent from the lessees for the owner
and visited the property for that purpose, and who had knowledge of
the work, and it will be presumed that this knowledge was imparted to
the defendant landowner, even though the agent did not have authority
to enter into a contract for the work and thus bind his principal.
Mutual Construction Oq, v, Bakex. 237 111, App, 596.
It will not be necessary to consider several motions made
and reserved by the court to the hearing, for the reason that the
conclusion of the court disposes of the rights of the parties*
Zt necessarily follows frcw the conclusion reached by the
court that the chancellor erred in overruling complainant ^s as well
as defendant interveners* exceptions to the master* s report, and
in dismissing the claims for want of equity. Therefore, the decree
of dismissal is reversed and the cause remanded to the Circuit Court
of Cook County, with directions that the chancellor enter a decree
granting the mechanics* liens prayed for in the bill of oomiiaint
and the defendant interveners* petitions for the several amounts to
be a lien upon the property of the defendssnt owner*
OEOEIIE HSTSRSEB ASQ CAU3S
RKMAIJDED WITH DIRECTIONS,
HALL, P,J, AND DEHIS E. SULLIVAN, J, OOKOUR.
T?*': - .+«?■» Iff?- . 4., ,cf OSXjS
f^- :Ii;r!:.«88®oan tl
^'frr-l^'lP:' ^'^IIVOO lOOO lO
,>iTnirr. .. , . ..■!:} Q^h *x.,^.\SiAH
38380
WESTSRH 3UBURBAii FXiiAfiCIE & THRIFT
0OMPAHY« a ooxporption.
▼.
Appellee,
EDWARD A. GRAHAU, J(mS DOE, and
liART ROE,
AppellantSf
Oonaolldsted with -
WESTERH SUBURBAN FIMAHCS & THRIFT
OOMFAHY, a corporation.
Appellee,
EDWARD A. GRAHAM, R. OLARK, JOHK DOE
and MAHT ROE,
Appellants.
APPEALS moU
MUHICIPAL GOURT
OF OHICAQO,
2S5I.A. 587
m.4 JUStlOE HSBSL DELIVERED THE OPINIOl} OF THE COURT,
This ia an appeal by the defendants Edward A. Grahaa and
R« Olarlc from judgments entered by the Municipal Court of Chicago
i& two actions of replevin instituted by the -Vest Suburban Finance
tt Thrift Company against these defendants. In each case in the
Municipal Court, the findings and judgments were in favor of the
lest Suburban Finance * Thrift Company, The actions of replevin
Involved the title to certain store fixtures located in two stores
in the City of Chicago, one at 933 South Western Avenue, and the
other at 608 South Eedzie Avenue. At the time the replevin suits
were instituted the defendants were in possession of the personal
property in these stores. Upon appeal this court has oonsolidated
for hearing the two appeals, Sos. 38380 and 38381, and permitted the
filing of one set of abstracts and briefs to cover both oases* No
questions as to the pleadings are involved, nnd the facts are sub-
stantially the same in the two appeals, except as to the right of
the defendant R. Clark to possession of the properties in questbn.
35
MOm C
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3
The facts upon which these ijudgments were predlor^ttA are,
substantially, that one Thomas F^aonc, prior to May 1, 1934, had
operated a chain of butcher shops in the Oity of Chioago. One of
the shops was loo^^ted at 933 South Western Avenue, and another at
608 South Kedzle Avenue. On May 1, 1934, Falone went to the plain-
tiff, th« West Suburban Finance and Thrift OcMapany, s corporation
engaged in the general finance business and in lending money, and
borrowed fron plaintiff $1,500. As a condition to making the loan,
the plaintiff required Falone to execute bills of iale covering ths
fixtures located in the stores at 933 South 'Western Avenue and 608
Kedzie Avenue* At this tiae Falone and the plaintiff entered into
what is called a conditional sales contract as to eae|^ of the stores,
under the terms of which the plaintiff purported to resell to Falone
the fixtures in the store at 933 South Western Avenue for the axm
of S600, payable in monthly installments of 1^50, and the fixtures
in the store at 608 South Kcdzie Avenue for the sum of ^43, payable
in ttonthly instsaiments of #53*60, title to be in the plaintiff until
payments were made*
Of the total amount borrowed, and there seems to be no
question that the money was loaned to Falone under the terms of
the agreements just described, Falone repaid $300 to be applied on
the oontraets*
Ob. September 30, 1934, Thomas Falone executed an agreement,
which is referred to in the briefs as an assignment for the benefit
of the creditors, to Edward A* Graham, as trustee, Ut)on the execu-
tion of the contract for the benefit of creditors, Edward A, Graham
took possession of the stores located at 933 South estern Avenue
and 608 South Kedzie Avenue, and operated a meat market at each
location* Thereafter, on February 21, 1935, Graham sold the fix-
tures located in the Kedzie Avenue store to the defendant Clark for
— ^ ^^ l.^^-
9X<f' • < -US Oi..^
sift ,«4
OQ
•r'fotJ ;rfixre«<
^uxj«, eJ'ij(3t.^3^xs<e 0£[i
a<»X ftfxt^iTii adi to 0«Xeaid«iioq ai«c#
tot tTBiU ta^.ba9\9b sxltf o* »io*» ©waav^ »ia*tX 9rf# at bBir.ool BBtat
3
$1500« It is aloo a part of the record that on Septeabtr 89, 1934,
Qraham addressed a letter to all of the eredltore of Thoatae Falone
advlalng them of the execution of the aasignment for the benefit
of oreditora, and also advising them that he had taken over the
operation of the stores and of his intention to assume the manrge-
ment and superviaion thereof, and to pay the creditors out of the
proceeds of the operation, and further advising them of his intention
to reoonvey his establishments to Falone on payment in full to the
oxeditors*
During the course of the trial there was introduced in
the case nov here on appeal, an assignment for the benefit of cred-
itors, dated January 9, 1935« fhis assignment was signed, by Falone,
Graham and a n\mber of the creditors of Falone* On March 6, 1935,
the plaintiff served notice on ara&am claiming title to the fixtures
in the two stores and demanding possession thereof, which was refused,
and as a result two actions of replevin were instituted by the plains
tiff, and the oourt^ upon a hearing, found right to possession of
the property to be in the plaintiff, and entered such jiidgment*
7hs defendants contend that the transaction between Thomas
Falone and the plaintiff, while in form purporting to be a conditional
sales contract, was in faot a chattel mortgage to secure the amount
of money loaned by the plaintiff, and the fact that the instruments
were not recorded made them void as against the rights of the creditor
who were in possession of the property through their assignee or
trustee, and also as agaiioit the defendant E* Clark*
It is a well established doctrine of law in this State
that where a bill of sale is given as security to provide for the
paywmt of an account, it is held to be a chattel mortgage, and this
was reiterated in a case entitled. The Southern Siarety Oompany v.
The People's Stste Bank of Astoria. 332 Ill«, 562, where it is said:
~^^. > iiBai &di 9fBij .iotiafP'i^ ap. ssaote od* ^o Rott^^r^qc
»tf# to *uo an;oti£>ato sii& x*<i oi- Jba* ^ta^r&iijr aoi9JtwrBriyx> .««
olfnsj.ti eirt to fl»ed# sflisivfcB i[9iI;^TJUlr £>as »aol#j5i«>qa 9dt lo «ilb«ftOOirq
-feeio lo *i'i9fle)J «il^t tot isx^ntti^tBBJS as. ^l£9cps wo ai«if wc« »8jro atft
< 1 ifoifiA'; nO ,9fxoXp^> "iv e^toJilrsTo f?d;f 1:3 T»€Uawfl Jt bos «u»£LsTi9
.'• 5l^.^^ -^irir^^.telo Esil ... , oartaa tlitaJtfllq edit
1381.- ,■ ...ccaoriKKr >nil>0Bia3fc bWR isaio** 0'y;f 9d* fli
to iigJtE: .. :,,^-- ^^^ »:.■■:■ ^:f Wj06 'Wf* ^ae ,1:11#
r^RrvT') 9rf;t lo etftfslt ?f;':f i ar; 1 r:.:f p.- li^v ■ti.di ^tuAt. Jbie.t'too&i toa ©rtaw
,-/i r , ;■ -.'h.ri -"> ^ 'j^C-T ?>/.'.ft ^ •:« «j i p,f rT J
^rilf ^^' o^^«•^• ,, ^«^^, ...... „,....
"A bill of sale giren as stourity to provide meana of
payment haa been held to be a chattel mortgage, (ffhittemore
▼• ^laher. 133 111. 245.) A bill of sale with a oontem-
poraneoua agreement to re-oonvey upon payment is a chattel
mortgage, (Uohaa t. Gordon v, Hiohey. 163 111, 530; Martin
T. Dunoan. 156 id. 274.) ^If this instrument had been ack-
nowledged and recorded, as provided by statute, or if
poasesaion had been delivered to plaintiff in error at the
tiflM of its execution, there could be no question p.b to its
validity as a chattel mortgage. The agreement conveyed
legal title as security by language of bargain and sale,
possession remaining with the transferer* The essence of
a chattel mortgage is the intention to transfer title to
secure the performance of an obligation by the mortgagor,
and a transfer of title to secure a contingent liability
is a valid ekiOital mortgage* ••
The reply of the plaintiff to this contention is that the
property was in the possession of Falone by the provisions of a
aenditional sales contract, and that he did not have any title to
the store fixtures in question at the time he turned over his business;
as is claimed, to Graham, for the purpose of operating meat markets,
and fran the profits to pay the claims of the various creditors. It
Is the rule in this State that such contracts are reo^nized as valid
oontraets between the parties, and this is made so by the Uniform
Sales Act, Seo. 35, Oh, 131a, par. 38, et sea. 111, at. Bar 3ts, 1935,
which provides that where personal property is sold, delivery of the
property may be made to the buyer and title reserved in the seller
until the purchase price has been paid. Hixon v. Ward. 254 111, App»
505»
Fxem the facts it is clear th^^t Th^ias Falone was in
possession of these store fixtures as owner at the time the agreements
described in this opinion were entered into between him and the plain-
tiff. There is no evidence that Falone delivered pttssesslon of the
fixtures to the plaintiff except by symbolic delivery of the oontraott
that are a park of this litigation, and he continued to remain in
possession after the execution of the bill of sale and the execution
Of a conditional sales contract by the plaintiff, which provided
that Falone should remain in possession without title until he had
made the payments required by the contract, when he would then retiin
tltla to the property.
Bttcj'r
Bit o:
sifi tTrit ei floid-rtetffoo aiif* ©# Ititnlalq erf* TuG XI^«iE ftitT
-''^7 0» ^*«in3o©«« arrjs ejTo*-^ +'**'"^ -^^ *>"•■■ •' '^^ ♦s-t ..tft 8 lit* ei •I&7 axft ti
•60d
*/iefii0ft'; '^mii 9/. two 8« eft^jtrtf^xJfi &ii>f9 9e9di tc aalBUBBBoq
alslq •-- V7j»d otai betBtao > 'itiii al b»<Str99Bb
d to noiaeftewq fiattorlX »t9I1T .ni#
for the benefit of oredltoxe is regarded as takiru^ the esme rights
to the property transferred to him as the : esignor had, hut no
greater, and concede that as between Fcione and the ^'ept
Suburban Finance & Thrift Company, the agreement of May 1, 1934, is
yalid, but while admitting that the contra cts a e good as between
the parties, the defendants contend that there is Qn exception to
the rxile that where posseepion of property is taken by an assignee
who holds it for the benefit of the creditors the right of the
aesignee is superior to the right of a mortgagee named in an un-
recorded chattel mortgage, «nd rely on ">ec, 1 of the Illinois
Chattel Mortgage Act, which isj
*Ho mortgage, trust deed or other conveyance of personal
property having the effect of a mortgnge or lien upon
such property, shall be vi,Xid as a^iainst the rights and
interests of any third person, unless poss ssion ther> of
shall be delivered to and remain with the grsntee, or the
ins ruaent shall provide for the posseBsiori of the property
to remain with the grantor, and the instrument is ackno.vledged
and recorded (or filed) as hereinafter directed; and every
such instrument shall, for the purposes of th^s Act, be
deemed a otmttel mortgage."
And further, the defendants rely on the case of Gubbins v. -ouitable
Trust Oo.. 80 111, ^p^i, 17, as having a bearing upoE the contention
above stated, that is, that the right of an assignee in possession
for the benefit of creditors is superior to that of the holder of
an unrecorded chattel mortgage. The court there said, in parts
"Although the general proposition is that an assignee in
insolvency for the benefit of crej iters, stands oiay in
the place of the assignor as respects the property of the
latter, it would be anomalous if in the case of & chattel
mortgage invalid as to creditors, it should be held to
be valid as agoinet the assignee who is a trustee for the
creditors.
As illustrated in the Hew York Court of Appeals
decision, referred to in the Bak^r oa-e, if the assignee
takes no title ngainet the mortgagee in such a csee, it
would follow th- t a creditor mi ht, after the sr-signment,
obtain .iuo.-ment, have erecutior isnued, and thus acouire
a lien superior to both that of the mortgagee and asiignee.
At the time Falone signed the ourporte*? contraots turr ing
-ax; , X'i&quj ci: »Sfl[3l5B«
' q
' ' . . n
I)
iUi*; cu
floiasea«(^>
■ V
5*" . iffti^^^^O 5©f>"I00;JTUi( an
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6
over the properties to Edward A, Grahaun, aa trustee for the benefit
of creditors, Falone was without title to the fixtures contained in
the two stores in question, and these conditional sales oontraots
provide that ownership of and title to the described properties are
to reoain in the plaintiff until all of the indebtedness is paid ia
oash, and that thereupcm title shall pass to l*'alone. The contracts
being MaAiAg upon the foraer owner of the properties he, Falone,
unquestionably, could not convey any better title than he had, and
this fact was admitted by the defendants.
As stated before in this opinion, this form of contract is
approved under the Uniform Sales Act, which was in effect prior to
the transaction now under consideration. In the execution of the
documents conveying title to the plaintiff and from the plaintiff to
Falone, there were no representations made upon which the creditors
relied to their damage, nor was the conduct of the plaintiff such
as would preclude it from denying the seller's authority to convey.
Upon this question our Supreme Court has laid down the rule, by
which we believe this ooxirt should be governed, in the case of
Sherer-Glllett Oo« v. Long. 318 111, 438* The court said;
"that representation has appellee made upon which appellant
has relied to his damage? What conduct of appellee pre-
cludes it from denying the seller's authority to sell? It
did not clothe Taylor with indicia of title. Clothing
another person with indicia of ownership does not mean simply
giving him possession of a chattel. Possession is one of the
indications of title, but possession may be delivered by
the owner to a lessee, a bailee, an agent or a servant.
Owners of chattels must frequently entrust others with their
possession, and the affairs of men could not be conducted
unless they could do so with safety, so long as the possession
of the chattel is not accompanied by some indicivim of owner-
ship or the right to sell, (Drain v. La Grange State Bank,
supra, ) "
And the court then said:
"The Uniform Sales act recognises the validity of such
contracts and specifically provides th?>t no title can be
passed by tiie purchi^ser of goods under such a contract
-■■i;fi9goie jb©<?it©*i-
*I V.
•Ii*>
•isfc flriollrfU BAi tBtau b^ro-xqqm
'i9iaimto& %»bAti won R&i:tt>B9iL^%i ndi
iSr
n-
<
-4
*
0
jjbi/:i8 nsn.
> .; :. ... y i-- ■?.'. ^j
!>
iiOA
'imless the owner of the goods is by his conduct pre-
cluded from denying the seller's authority to aell,'
There is no basis for the operation of an estoppel
in this record,"
In the instant case there is nothing in the record which
would indicate th^t the plaintiff is estopped from asserting its
right to the ch8,ttels recovered in this replevin suit from the
defendant, vho wfis in possession.
The conclusions we have reached in the instant case would
apply to the claim of R* ^lark, who makes the point that he was
a purchaser for value and without notice of plaintiff's claim, upon
the theory that the contract between the plaintiff and Falone was
but a chattel mortgage, and not being recorded, is void as to Clark.
Although there is aomd question as to proof offered by
Clark of the purchase of the store fixtures, and it is not altogether
clear just how the transaction was negotiated, it will not be
necessary to go into the details of the alleged purchase. In the
transaction, however, Graham could transfer the chattels only with
such title SA Falone was able to give^.and Falone not having title
to the fixtures could not transfer the chattels.
For the reasons stated in this opinion, the judgments of
the Munioip€uL Oourt are affirmed*
JUI9&MEHTS AFFIRMED.
HALL, P.J. AlID BSMIS E. SULLIVAK, J. CONCUR,
x''i ;r?t
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38 381
WEST SUBUSBAK FINANCE * THRIFT COMPANY,
Appellee,
a oorporatlon.
EDWARD A. GRAHAM, JOHN DOE, and MAPI
Appellants*
Consolidated with -
WEST 3UBUR3AH FINANCE AND THRIFT OOMPAKT,
a oorporatioB,
Appellee,
EDWARD A. (mAHAMt H. CLAHK, JOHN DOE, and
HAHT ROE,
Appellants*
^PEALS FROM
MUfilOIPAL COURT
OF CHICAGO*
3 5I.A. 5 87
liR* JUSTICE HEBEI. DELIVERED THE Oi-IHIOH OF THE COURT.
This is an appeal by R* Clark from a judgment entered in
the Mimiclpal Court of Chieago in an aotion of replevin instituted
by the West Suburban Finance & Thrift Company, a oorporation, against
hiaty azMi the court, at the eonolusion of the hearing, found the
Tight to possession of the chattels described in the replevin writ
to be in the plaintiff, and entered judgaent upon such finding.
What we have said in our opinion in Case Bo. 38380,
with which this proceeding was consolidated for the purpose of a
hearing, is controlling upon the questions called to our attention
by this defendant, and for the reasons ststed in that opinion, the
Judgment entered in the Municipal Court is affirmed.
JUDQMEKT AFFIRMED.
HALL, P.J. AID DENIS I. SULLIVAN, J. CONCUR*
Moin I
fJ5UO0
j&aXiaa'
.k.\iiiJ
I8S85
T£S.W
e>£Ei! «atoc ii!K»% «3^jhi€' «n ^uAmm?i u aHA^raa
< rfTirig fyii$ nl 9<f 0*
.A/M ftrfd- ill fj®«r»#xi» #fl«ffli3Jbjtr{;
•ill
a CSA .^.l «uLUH
38430
SOUTH SHORE SECURITIES CO,,
a oorporatlon.
Appellee,
JOHH S. HEWBERO, et al»
Appellants*
APPEAL
OiaOUIT COURT
JOOK COUNTY,
^8 5i.A. 5 87
4-
MR. JUSTICE HEBEL DELIVERED THE OPIKIOH OF THE COURT.
On May 33, 1933, plaintiff oaused a judgment by oonfesaion
to De entered for the sum of |4»516,71 against the defendants,
afterwarde confirmed by the court upon a hearing. From this judg-
ment the defendants appeal.
The declaration filed by plaintiff alleges that the
defendants for valuable oonsideration had delivered to the plaintiff
a certain iiffltrument of guaranty, whereby defendants guaranteed
the full payment of a promiasoiTr note for :|4,900, signed by one
Margaret J. Dafls, and secured by a junior mortga|p» upon the
property therein described.
On July 11, 1933, defendants filed their petition to
open and vacate the judgment, and on July 14, 1933, Judge Lynch
opened the said judgment^ with leave to plead. On December 3, 1934,
the oamae was reached on the call, and the court entered an order
that the judgment be vacated and set aside on ex parte motion. This
order of December 3d was vacated on December 4, 1934«
It appears from the record that plaintiff had loaned to
the Charles Ringer Oompany #3900 on a note signed by Margaret J.
Davis, secured by a junior mortgage on property not here in question,
and upon a guaranty of said note by defendants. The defendant
John £• Newberg was in the business of contracting for the construo"-
tion of buildings. In July, 1938, he was approached by Earner Johnsonj
,YTKI.rOD 3D0O-
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o^r ff»i*li-e»q :tidj(f* b9li\ 9itni^ha&\9b ,S56I ,XI x-^^l. 00
BidT .nol^osi qj-xjjc? xa «o saie:- J-** /bobt M jTHWHgfitij; erf* !f«if*
,*r . ^ :'3rfia«coa no b^^^eopv aam Jbfi TOdnaosQ lo rsbto
.L ^•iB'ST'?! xc/ tftiijiip «G OO^St X^«fTttoO T^^aifl 8*XTiiif8 •*#
te^bas'iBt 9ti1 »e&n^ba9l9t xcf t>icn blAm lO yttasiietrs * xioqxf iusa
-^£fT^Ba«e 9tit 10) sni^osx^tnoo lo a8*ixXax;<f »iit a.i sisv s^tecTwaX vS attol
3
an ag«nt for the Oharles Ringer Oompany, a real estate firm, and
t^d about the lot in question. The defendant examined thelot^
whloh was prioed to him at $5500 » and shortly thereafter advised
Johnson he vould buy the lot for $5500 if the owner wotild aooept a
second mortgage note signed by Margaret J, DaTis, on which there
remained due the sua of |4,900, as part payment. Later Johnson
advised the defendant that the owner would accept his proposition
and asked hia to call at the office of the Charles Ringer Company
for the purpose of signing the contract of purchase. The contract
W39.8 signed by the defendants, and provided that Lawrence Mills
would sell the lot for #5500 and accept the |4,900 Davis note,
secured by a second mortgage, as part payment thereof by the
defendants*
The defendants paid $300 earnest money to the Charles
Ringer Company* Later the Rii^er Company notified defendant Newberg
that title to the lot had been brought down and was good, and
requested him to close the deaJL. On August 38, 1938, defendants
paid the additional sua of $400 and delivered the Saris note for
|4,900, together with the trust deed, to the Charles Singer Company,
and were Informed by the Oompany that it would record the deed^
The Charles Ringer Company deposited the Newberg bheck for
#400 in the bank and received credit for the amount, aiid two days
thereafter, on August 30, 1928, £lmer Johnson, the agent acting
for the Ringer Company in the real estate transaction, called at
defendants' home and requested the defendants to sign a guaranty of
the Davis note. Defendant Kewberg stated at the time he did not
like to stgn tuoh paper, and Elmer Johnson explained that the
Charles ^nger Oompany had acquired the Davis note and mortgage, and
desired to borrow money on it from the South Shore Securities Company*
Johnson also stated that plaintiff in the Instant case was a member
of the Charles Ringer organisation, and th^t "It will look better
^tox»d& t»aimsx9 fn^ta^'i^b arfT *noiita9u9 at iel 9dt *«od.s blot
b9%lvb}-i nstifsri^df t-£^;fiorfa tan ,00<^3| ^n aid oi fceoliq sbw doiibr
« tqsoo.« ifiatm xsiSfwo siiit li OOSS'^ 101 iol ©rfd- x^ Jbli/ow »ri nesmfol*
•TWf* riolrfw no ,8xv^Cr •!, d-$a^3«EJ5M \cf i>9nsxe ©d^on ©;^3w-xoai l)aooe8
fl»tnf?^L iftf/^a ,#fl««itA4 *l^«<? 8« «O0e,<^t ^o «£ft 9iit »«iJb iJsnljBfiist
flOJt#l»oqoTc tiff ftr^'^f*.'^ BXt/ow rt«nw> '^rU* t^^r^* tn,'*£Mi*"^«l) »dt bBBtrhB
fiioo ««ff •»»#dy^*ri.' '^T^rr-?© ^ff* ^iflsi> •■CKjis^i- arid' rdt
t9#oa 8ir«r 0(%t*f Xs>e i^Ii/ow
3'»ri/«ri0 Sri* o* Y®^®"* *99K*'^ -tn^fiwelst) »riT
fenB tfooojj 8s^ fin- :( ;?oI sri* o* slttt tRdt
Bta^aelQb ^BS^l t vrgifA aO .Xsefc i; folo o^ aid l5e>*8»wp»Tt
tro*i ston strM& »fi* J&»T»vile.^ Jjfrs 'X>K^ Jo ».l> J. iffoltlBJb^ ©if* M*q
^v^■.<-mC^O tSSfli: BSXlBffO 9^t oa' 4 ..;■:::<■ ;?£[* delis' iaifi-»§©* ,00€^-^$
»:>eQfc sffj 510091 5Iuow iJ-i iferit Yfl*?<T»o5:^ ^* X<^ ibeaiiotixi: e«tsir tea
tol ;fO«lltf Siscfws?! eu* i59*l6o<-^: vri^'iroC ^:>siMH aelrcAXfO ©ifT
*« fe©IXa» ,flol^:f'> p"^ -^ ^- . ^ ..' ' 10^
ton blfa erf twBi* »rf* *» fce^t^'rf'e ^iftcfwdH tn«f>fl»'T«G ,e*ofl Biyjsa •!(#
»rit ttAt l)enl'^Lqx9 iioeaxloT> tOffiXI tejB «i:eorBs t^^^i^a 'isA* ^^ *^^^
ban ^s-ytjji^oJB bofi »*on BiTRG wfJ t^ii^poe Iwwf x£t<«<i*s»C it^iH B»lr&&0
jftMqaicO %9liliuo9ii tnod? dtuoZ i>r.i .-si^t" \il no x»no« irotTOcT o* Jb»Tjt««ib
t«(fKM» « •»« •e«o *fle*«ni •dit ,- ,_ ..^ _., :fprf* fea»,^;f8 oaX« aoaiutoli
3
If you sign the guaranty, and you don't hare to b« afraid, because
you are not getting anything for it and you don't have to pay
anything," Thereupon the defendants signed the guaranty in
question. At the time of signing the guaranty, a letter was signed
hy the defendants authorizing the plaintiff to recognize the Charles
Ringer Oompaiqr as the owner of the Davis note, and certifying the
amount still due thereon*
From the reoord it does not appear that plaintiff offered
any evidence except admission hy the plaintiff of the execution of
the guaranty, which the court considered, but upon what theory the
amount ©f the judgment was fixed, is not clear from the reoord.
The principal point made by the defendants is that the
court held, ae a matter of lav, it was necessary that the signed
guaranty be based upon a consideration* While there is no evidence
of any consideration received by the defenda,nts trtien the guaranty
was signed, there is evidence that the contract for the purchase of
the lot had already been signed and eattb paid, together with delivery
of the Davie note secured by a trust deed to the Oharles Hinger
Company before the signing of the guaranty by the defendants* There
is some evidence that the Oharles Hinger Companjp and the plaintiff
oonpany were controlled by the same stockholders, end that the
of floors were aiembers of both organizations* From the record it is
clear that Johnson, the agent who appeared for the Oharles dinger
Company, aeted for this company and was instrumental in negotiating
the sale of the lot to the defendants and in inducing the defendants
to sign the guaranty. The reoord also shows that Johnson was an
officer and a member of the plaintiff organization.
X»4 of exsd t *a«b uax ^^^ ^i- 'I'^t sfliri^^gaa axxi^ifag t&n &ir
»l*fli«Iq 9iit bm ttmorptosi rs's^ntii »»XsisifO s>^^ t.r,di •<»££»&iT3 9«o8 ftX
4
The general rule of law, supported by the authorities.
Is that where an aooomaodation guaranty is Issued without consider-
ation, no recovery can be had thereon by the original payee against
an aoooaaraodation maker, unlese upon a consideration. Keenan v«
Blue. 340 111. 177*
For the reasons stated, the evidence does not justify
the entry of the judgment in this proceeding. The judgment is
reversed and the cause remanded for a new trial,
M7ER3£D AKD MMAHDEQ,
HALi., p«j. Am nmis £• sox.li?a£, j« ooitoua.
Jan if. ■ Liia*S»-t^vi ^-^
^JJAK
38537
B4LCUNAi3,
Appellants,
i >tpoelleee.
V
PKAL FRO
MUNICIPAL .
OF CHICAOO.
285 I.A. 588
MR. JUMIOBi km%h DaLI?KR=;D THR OPIHIOS OF THE
COUf?T.
In this action Ins'tltnte?' by the nlrintiffe In
the Municipal -ourt of Ghlosgo, a trial was h?A before the
court without a Jury r?-nd a judgment entere*? finding the ismeB
agf.lnBt the plnintiffe, fros:; shieh 3u'.^;Qjeat the pi intlffe
appeal.
Plaintiffs' etrteaent of claim 1p baeea upon a
contraot under »e?.l ent,erecl into by both the pi intiffs and
the defendants ou January 28, 193S, wnerein the defendants,
described as psrtie? of the secoad pfirt, olnia to hsre 3n
interest in cert;- in ineurance poUcies in pos'-:'eRf:^iOi: of the
plsintiffB, *ao r-tre deRcribea as the ;>srtlee of the ■ irst
part, i?hiloh policies wer ■ isfm:d u-^on the life of one " illlan
H^lljoelUB, who died on or -bout J -wry 21, 1933. The po vciee
fsers made p y^^ble to his estate,
T"roj3 thie contr-'.ct it ^poeare that the deffndrnte
are the next of kin oi the deceased, *ho left no purviring
?rlfe or children, or other hairs or next of kin entitled to
eh'irK In the prooee'^)p of the pc icies; th?t the pi intlffe
hold eert?=ln policies on the life of the dfice->8ed aggxeRstlng
-1-
\
.._-Zx,
▼W«€
, >Sn
,KlJ
5^^H „i\JS8S
yi^ivtyiM" Off .tl^r ^h##ff#«#1h
»tsi:f
tbe exiffl of |3,642, and clsiai th t they hhve been ut to
expen@« in furnishing •«(Slc?'l aid to the r^eceaped, and have
alao Incurred liability for funer-^1 co^ts, servioee and arr nge-
■cate in connection «ith the burial of the deceased. By
reacon of theee negotiations, the contreot in nzestion was
prepared by the attorney, ?5h© appeared for the defendantB at
the time the negotiation^^ wer had, snd it «9e agr'vjd betwetft
the p.- rties that the pi' intiff e were to r ceive from the pro-
eeeds of the policies in th^lr poe^esiBioa the mxm of #900
in full settlement of all oeste incurred in caring for the
deceased fluring hialast illnegs and for reiiabursements for
all funeral costs and expensei*, and th-t there w&s to be
deducted from this Bxm |150 to be paid to the defendants
for the purchase of s ceajetery lot and the erection of a
tombetone upon the gr^tve of t e rieceaaed; ttjat the remainder
ef the proceeds collected from t e insurance oompaniee was
to be ecftially divided between the plrsintiffs, as partiee of
the first part, and the deiendants, as partiee of the eecond
partj^afu^r certain deduction© wer^ ?sllowed. The pi? in; if fs
Olain the sub of 11,360.77.
The def&ad'3ntf5 by their sfiidsvit of nserit- deny
that pl«jintix/e are entitled to recover, for the reason th^'t the
defendant Ang^ela fclijogima was inf'uoed to sif n the «»lleged
oontraot attached to r>inintiffs« st.rtement of claiai by fraudu-
lent representations ©ade to ber by the olaintiffs; that they
represented that the deceaRed, ■ illi^^m «'liJoeiUB, 1 ft a
will giving ©11 of the property to Eleanor Bnlcunae, one of
the plslntlffs, and that the reprasent''>tion was false, and
knewa sy the ol'intiffe to be false; that nhe deoea-^ed
Gillian ilijoglue died inteetate, nnd th^t the EtTtements
0& ta asfrd avi^d. v^tft i'ldt taXalo hxr «SJ^«£^ le man mit
■♦311 It p feu? =.^ol7 o*Is
■ ■ ^ ■-I *!»3p»a5»i>
3s«»OOtO[ Wf* to
Bill Gi^fajtfiic
■o:(^i fiii? ,^ttiirjti: -Tic &d9
•stiif 9rfl *«rf# hay ^9ir\t»9iial bBtb «i*i»ot;lX-* •«iIXi*
■Ade by the pl?intiffB were for the purpoee of defrnudlng
the defifCdants.
From the evidence it sppears that for eometime
prior to J'r'nuary 21, 1933, Illia« 'ilijoelu*, a bachelor, hnd
occupied a room in t e pr-jmlpee at 663 Jest X4th Place owned
by the ol-inttff, Anthony alcvmps; thnt pl^^intiff hid
advanced money on lo-^iis, for premixaiB on sever'^l 8m«ll Indue-
trlaX insurance policlss and aleo for his fflsintensnce; that
both of the plaintiffs were fellow Gountrynen of iHjam
Slijoelue find had befriended hiai in their home, end on
April 11, 1932, viijositts executed a will ber^ueathinti t4
Kre. Bsloiinas all hie property - * including all the ini^^urance
aoney on policies in foroe at the time of my death * • •
for her kind acts for meny years while I wae out of employment,
in furnishing me, without compensation, board, lodging ?nd other
aeoeselties of life including i^ymsnt on insurance remiumB,"
Upon the death of the ineured the pl'^intiffs had in
their posssBieion insurance -oolieies, which wer in force '"nd
payable to insured* s est-'.te, and f^ums collected ;« followe:
Amount
of
policy We. lasur noe Qompany Policy
7564054 veivtern & southern 1295
6083512 " " 660
9126037 "
9308560 ••
109512337 Metropolitan
110705615 *
6765S54 :>ai*iricfln K'=)tion'»l
6765553 * "
6131945 iiutunl Life
86094543 Prudential Life
soo
98
336
245
294
464.
5C0
ffiovint
Oollected
1990,27
50.96
626.88
87.50
87.50
336,00
■'02.50
Oollected
Ey
Administrator
Pl-intiffi
iidminlstrptor
krs. ?.ebaa
Plaintiff?
"dainistri^tor
inna Zebae
§3,680. '2,681.61
-3-
r..rr .■,.■• ■ b«iq*rooo
. •■^fi' tax sic ail* x<*
^'mi.\x '■: 9£ft to diio4
■ : '^0?-)fl
Vf.Q^^. rf?
-&-
I'tiere *«r . also two otiier polieiee a^ferefe&tiwg
|700 or ^300, issued by the John Hsncock Life Ineuranoe Oo«-
pany wherein the plaintiff Anthony Balcunas war? naaad as
beneficiary,
When the Insured died on Janu'^ry 21, 1933, the
plaintiffs notified Anna l^cOtoss, sister of the deceased, of
hie death, arranged for his funeral and as uaed the burial
expenses of |530,50,
It cTppeara froos t e evidence that a oontroverey
aroee between the pl-^intlff? and the defendants ??bout the
Insurance proceeds, whereupon the olsintiff Anthony L^Blcunas
offered to surrender t e po?. ioies he held piy?-ble to the ertate.
If the relatlvas would pay the funeral bllle and Indebtedness
0S Slijoslus to hl«. As a remi t of thl« offer, the nsrtlee
aet on January 2Q, 1933, at the office of dsf ndante* attorney
who pr pared the above leentioned contract, which was sitned
by the plaintiffs and also by %na SSebas and Angela JSlljosius,
elsters of the deceased, and his brother » Rafalaa ^Jilijossius.
Thereupon, under the terag of the contract, the plaintiffs
surrendered poeeeseioii of the int^urance policiee aggregating
approximately |3,642, upon which collect ions were oade by the
plaintiffs and the defendants aaounting to spproxiaately |S, 681,61.
Buhsequcnt to the date of :he agreawent the defendant, Mra, -inna
Zehas, the only relative of the deceased residing in Illinois, had
her son John Kebse appointed administrator of the estate,
i^urln^'; the trial of he ease, the lr;et will and tep.taaent
ef William Sli^oeiua w^s filed by the plaintiffs' attorney with
the Clerk of the Prob"te Court of Oook County, B.ttd fro* the
record it appears that the pl?5in^iffB aseerted their rights
under the contract si aed by the parties, and the def'ndRntB
having; collected the proceeds of the policiee refused to pay to
^.i-: < . . ..^ x<t3fi^-8J» ft.© .feai^ ti&^arfEai ©li^ nstf/
Xaiawd »iC* f?««iri - l?t%ix^i Visa -sot b»8afi!ia;j55 ,«(#««.6 fid
j^il* t;T-tcfr -^titt^fc^ t»|i ^^.t Sjfflt? s'iSli^Witf^'-XQ, «d^ i(»««ri^»<5 •t9i[ft
grfl!.., ittni -j, .n(?jrrt«T«<ftr ,s6»»90*i:q «oaettt/eai
^ .ffijtil p* «iil5iOtii:» lo
,effX«?otiX- el-. cf 08 X« jboj' !«iltX*«l^'XQ tlU xtf
: •■, YX<-:.J'-Ki';c\ ift+iJ&d'.lsR ad.'' tas elli^aicla
( infill lii :^feisdT bv:--'':ftss?^ »ji3 -. - _:^-_ - ',.Illo »1rt ,r!-.d©S
•
?£(* to to:!
liw ;r«.r - ..: ,
-.
'^l-^i^vi -icr »(1
f>ri
:<-i" ;..nf.
»>cf.i
ll
SI Jfr
9;tfi80,i;ir.> f. •■-:
• ■>
ffcrt'? ari:^ ''
-^1 ax..
;0. re
- 7*arc
DfiiSJy
ml 'Mifl'sT .j>loi'. "" ftflcrr, -in'-n'O ^niv^d
tHa pir.intlifs the fj«./unt. due tfaam undor ix^ t .^rrap,
l^oa fn exRsin»tlou of the last will r^ud te^taaeat
•f illlan illjofvlu* it app«ar» th«t tb« plaintiff til«r,noY
BAleosis, fta lagftt^e, w^!» te reoelvd ^ai of tbe t^f^t^ntor't
piop^rtjr, «hloh iacluded all tbe iaAiurano« «on«y oo«ln4< dut
en the life IneurKaoe policies at th« ti«e of tti>.tetQr*fl
deaths mad fron tli« wlXX it is «vi<S«iift »by th« te^t tor aad«
tlii» pi' intlJti the «ole ^«(g74t«e.
Xt ia app-?r3fit frsa ths* f^otP i^s herein ^tfited tost
% oontreveTey %ro*« b«%ve*B ttee parties sad upofi ooalng to %a
»gT«eaeat tb« ©oatr'^ct ^ ioh li? bo* the aubjeot of thl« liti-
gatioa iia«r fitatarf^d iato upoa suffleisat oonsi^ler^tion. Uadar
tfeia eoatrset tb« pl^latlff KlaaaoT Bsloua»» wTived bey right
at tbo «ol« li^st«« iiB-^«r tto« will of the t« trstor, sad < athony
Bmlo\t»a8 rela^std his elsi» s* t e nelcier of n nr^ta *ad «»•
relieved of hi? oMlg^tiOK to o&y thm burial exponse?. of tiM
Ab9'^b«(4 ».aouatlBg to $&:^o,50
Xa «i|^uiiit^ this ©ontr^ot the def ndaate aoted upoa
MtTiOo of eeyu:iB«l, s>ho sot oaiy pj^er^Tgd th« eoa r ct, but ^leo
%dTi««d tlie 4«f a^rvBts ia r;g«rd t© thffir rights, aad a« a
re«ult tteo ooa yovisrtod el l«« of the reypv.ctive partia «ero
a«ttl«d nad thle ooatr- at «ep enter©" iato.
Ttee OQurte eaoour^fO the ><ija t»«at of coatroTereiae
of this ohR3P?*ot«r, ?ad la the ctro of tioiaaoyioh ▼. -Igeth. 549
111. My the ^pT^ms '^ourt upon - like Tueotion «■ id:
•Courts of erultjr f«TOr tbo gottle.e t of dispute* ^^mong
a««b«r9 of « ft?«lly by pgre aeat rather th?a by r- sort to
l»w, sad the validity of suob contr' ot« ft « b-^en repeatedly
r co^aired by this eourt. (Cole ▼. i'ole, '?92 III. IM.) Tbo
aaster f-nd chsneellor ^e/-: woll ^»rr .nt«i In fltidla*. thoX
tbo -^reeaeat h«re InvolYe'i «^e free froa fr^ud or *la-
repx'j'ect'^tloa. e eee ao guf Ici-^nt b'Sie for ?»c-^edln» to
-5-
ubi^
^ifi3
fti{:f
Mrc, Sleeth's contentioii th-it fmre w«a present a fiduciary
r ■jlatlouehlp between nar and the others vsho fisre oot.cernec!
In ite ffl- king. (VaoGundy v. -Steele. ?61 111, 206; Bishop v,
Htlll:^rd. 127 id. 38?.) Ho amblirulty Is sppa.rent in ite teraq
and ujiless tnere is arabifuity in the Irtnguaga of a oontraot
the raeanlnf; fftus;t ba deterrained fr05! the words used and
froBi no other source, ('■.ngleateln v. lint?;, 345 111.48.)*
From the record we f .nd th^t the contract wae baaed
upon a sufficient conpideratlorj and understood by the parties
at the time it wae signed , and there it no indication that th«
defendant© wers: induced by me^ns of fr-md or alfreprepentstion
to enter into the contract upon which plaintiffs' -iCtion is
b?i ised«
The problem oonfrofiti»g this court is whether the
contract enterec^ into between the T>l*?intiffB and the defen-
dante Is an enforceable one. I'roffl the r >cord It appesra
the trisl court afttr hy ring the evidence renchod the eon-
elusion that the contract between the ^jartie^s was not en-
forceable,
y»aily settlement IS by agreeaent, when fair snd ob-
tained lEithout fraud hare b en repeatedly approvsd by the courta.
Btipanowlch v. Iweth. 349 111, 98; fiolt v. Uhleatann. 325
111, 165.
'^MIc this ease is act what might be termed e faiiily
settlement, etil the plaintiffs lave a certain interest In
the policies of insurance because of the will m^^kin^- the
pl?3lntiff i'leanor Bslcunrft t e eole legatee under its terms,
and t e fact that the other plaintiff Anthony V;«lounr.R, her
husb nd, aesiMBsd cert in obligatio .s In the payment of funeral
expen«ea, ss v^^ell ss the payment of a ote for $500 irhich 1»
held ^igsslnet the estate. By reason of theee fnots the pArtiea
wers ju tlfled in enterint into the contr ict in cuertlon.
The will executed by the deceased in hi« lifetime is
-6-
(.8#.Aii '^^-i ^ZiTL
•>ii IbG'll
4 r *ti.X « X i X
.a^tifo
vTItL
,:»-rf--r»v.. r.-f.-t'
■•>' '»,■■:* ««iti«^X«a ««ilfti»'i:^ lXiiaJt»lq
... 'i#rf»«» »rf#' i.rwrft jh»«1: ••'#^ 6«jj
:ti"f«'«iV r' «);;■; s . r r** I V ,■■' ^ -."*ln^mr■T■-1;■
• •' - * i ■ * - - - • --
on file with the Clerk ol the Prob'ite curt f-.nd. subject to
suoh AirooeedlUj-S ^s sa^y be deemed neoeaaary by s.nyone h-^vinf.; an
lnteres«t In the ©Rtate, bu- t'lie T>ould not rjrevent the oertlee
hnvlng certain rights to -roperty, as isell «f3 clsljae, from
entering Into a contract to ms.ke adjuBtaente^ and It hae always
beea the aim of the court r to encoiirysge a fair settlement of
a controversy between p^^rtleg?,
athough we ar' of the opinion th?t the oourt erred
in finding the iBRues for the defend^^nte, we regret th=^t they
failed to ».i5pear and plve their vlewe upon the ▼arious questlona
raised upon this appeal. However, se bellfve It only fair
thtt 8 retrial be bad, and for the rsa= ons ejEpresee':! herein,
the j|u%aent Is reversed and the eau^e is reaanded.
HALL, P. J. AID
UmiB I. SliLLlVAi, J, GO.S'OW,
: *»»«*£'..■ .--.oi sflli©Ja«
U>H
38286
STAHLET WEBDICLL*
Appellee ,
\
MUNICIPAL COURT ^
WALTER RECZEK and KATAR2YHA j OF CHICAGO.
REOZKK, his wife.
Appellants .
285 l.A. 588
MR. JUSTICE DEHIS E, SULLIVAN dellrered the opinion of
the coit>t«
This is an appeal from a judgment entered in the
Municipal Court in favor of the plaintiff Stanley Werdell and
againet the defendants Walter Reosek and Katarsyna Recsek, his
wife, in the sun of #308 as attorney's fees claimed to be due and
owing to the plaintiff for services rendered for the defendants.
The plaintiff set forth the services he rendered for
the defendants in his statement of claim, alleging that he had
heen retained hy them on August 22, 1934, to represent them in
the matter-of a default by them in the payment of Interest on a
note secured by a trust deed in the principal sum of $13,000; that
he arranged a settlement of the entire indebtedness for |9,900 in
in cash
Home Omaers Loan Corporation bonds, and $3,l0^to be paid the owner
of the note and trust deed; that he received $50 on accoxint of his
retainer, and spent 15*00 in filing an appearance for the defend-
ants in the foreclosure suit instituted by the owner of said trust
deed and principal note. Accompanying the statement of claim and
made a part thereof was a schedule of the time spent by the plain-
tiff in doing this work, beginning with August 22, 1934 and ending
on October 28^ 1934, The plaintiff contends that after he had
made the arrangements for said settlement of the indebtedness, the
defendants retained another lawyer to close the transaction with^
r^
88S8S
? OA^HCXKOM ( ,T
.ODAOIHO "^O
.tlsoo Sift
boa XXo^isft XalC'i^B l^l^nislq erijf to lotrs^ ai »*ttroO lBqtt>imjU.
SjU tiesoaH en^«ii5^.93 ?>i!cb i»so«H ^»*I^W »*a^biifllo6 art* *8fllAa»
bojs 9tjb 9d oi iidfiisXo aatj'i a^yf^arro**© eji 8©Cf to terti 9rf* ffl t«llw
,ata^bael©& "/"' '- •^^"^bnsi BaoivioB toI ttlialsLq. »dt oi gitiwo
n| a^iii ^ni^sanqot o;f ^^^Eex t?S titr^k na «a;tf# ^rf bftiiJjB^ei naacf
« a« *aana.tnl ^o .t/iQtf\.prq ©d* gI fserf* ifcf i-X0slef) » 1o ttajT^iMB aif*
Mli ;000,5X^ lo bb;b XsqioiilTq srfd^ nJt Jbeab *Bjyri* a t^ fcarreaaa aitMi
fli 00e«€t lot B9&abot<ffjbal aTltns arf* to *natr»X#*a8 a ba:B|n«Tt3 ad
rfaao nl
rtaawo ariif bXijq acf o*\£0X,5^ baB »ai)no<^ noi^jnoqioO aaoJaiaxiwO a«oH
aiif lo ^oxrooo^ no 03^- bsvlso* ri* Jbe»fc *ain:Jf boB a* on srf^ lo
-»6fi«lab ad* lol ooafja^aqqa xib anlXll: nJt 00»8| ^aaqa bns (iaala#an
j^avzi^ bi«a to rceawo oxlif x<f bQiuiiinai JtiuB siiraoXoeiol ad^ ai atAa
bflA ari«Xo lo i^naaisd-jsta ^dt gJiixa^qaoooA .atea XAqlonlaq bos b99b
-niaiq ad* ^d i^asqa aaii* adi lo eXj:/b9doe a saw lofiiad* *iJBq a aftMi
^oitca buA ^E%1 «S8 ;|-ain|i/ik Aitw ^ataal^vd ^iton aid* snlol) nt tltt
pbad ad ta*1s tsif* ebne^aoo mtnXaig adT .^Sex «SS «edo*90 ao
•d* ^aaeabd^d'^bfll »d* lo *a;)ffi9X**9a bi£i3 lol atirdnssnjBTxa ad* atea
•<(*i« 0oi#O3a(LST* ad* asoXo o* aaYvai* T^dio^s b^aisiBx a*n«bflaleft
out first paying the rlalntiff for hie services; that the fair,
usual and customary fee for skk^ semrices is |300.
The plaintiff further claias there is a balance of
♦8«00 due to him from the defendant Walter Recsek only for certain
legal serrioes performed for the said defendant.
At the same time plaintiff filed his suit, he also
filed an affldarlt for an attachment in aid in pursuance of which
an attachment writ Issued against the Chicago Title and Trust Company,
as garnishee, and that said garnishes filed Its answwr 4f ''No Punds"«
The defendants filed their appearance and made a demand
for a trial by a jury of six men and filed an affidavit of merits
which was later stricken on tuition of plaintiff and subsequently
filed their amended affidavit of merits which was likewise Btricken,
Defendants finally filed their second amended affidavit of merits
on which, on motion of the plaintiff , was stricken and jxidgment
against the defendants was entered in the sum of $308 and costs,
and the attachment sustained. The second attended affidavit of
merits answered the paragraphs of the statement of claim seriatim .
Defendants deny, among other things, that plaintiff was
retained for the purpose of aiding defendants in procuring a loan;
deny that plaintiff rendered legal services set out In plaintiff's
statement of claim; deny plaintiff spent the time set forth In the
plaintiff ♦s schedxae of sdrvices; deny that a settlement of said
claim was actxielly effected in the claim against the defendants
on the mortgage and asserts that it was necessary to engage another
attorney to close said transaction*
Defendants further assert that pursuant to an Act of
Congress creating the Homer Owners Loan Corporation, that no attor-
ney should receive more than |10 for aiding an applicant to secure
'i9ol%^'vs3 fMStHi' hole 99l X^c«fflo*8«fo bas Lmsfuj
«ifi*i90 lol yXao i,««o«^ !C9*IjsW d'fla&ne^'^fc ofit molt mid o^ ©irfc 00.8^
OBis ^d ^ilLTS aid b^ll't tttialsiiq ami* em»9 Bdi iA
dold^ 'to eoaawstvq ni bX& al ^s^ss^omHb tia lol ilTebma «?? b9lt\
laacimoZ tsrr-rT ba£ ei;MT or-isolrfO Bd^ tataims 6axf«8i di'iff dfl0fliri.Ofi;>-JjE an
t^Bbmr^ oH" ^* i»waixs a^i iJdiilt aariaifiisg &J:«ii iTarf* bos ,e9riali«j33 bji
^X*neifp»adJja ftjcts lllS-AJtBlq 'to aoUom so £tB:ii:>trtVi n»#jsl aj«j* doiifw
8^ii«ffl lo ;riTjBi3Xllj3 timbfim* bJixa&ik$ xt^di boIJtl xXXaitit atiusJbaelsa
^^t-fnifflq *5fi* »8'^nir{;f ^eif^fo :§nofi'J5 ^x^^^b n-ia^baaJ^Q
;rir'A -■ sjKlrrifooiq r^i ei^ricRn-'tef) ,§nJt.bls to ©acaii/q erf* tot fts'fllfl;»-eic
n'tlJt#fli«Xq ni ^w ;^^ IP itniRlq *Ari* yra^b
9di nt Atioi ^«a ecit «ri:' : . ,,; _,._ ;. ; :.!.i iO ic *i»fli»*8*«
bt»B to tadm8Xif*»a s ^r'.fT^ vit«»?'^ -a^olvTas ?o ei»£>©ifo« o'lli-J-nialq
T9if;foai» *ajsrei/!(# oi y'xpa<2'?o' ;'irl* a*T»«t.?, .-. .iota 9di ao
,;■-;:'■;■- ;tr!^.T# ?»/««! asrtXo ©i Y'^O'"^'^'^'"^ "
-3-
a loan in the Home Owners Loan Corporation, which was the purpose
for which the plaintiff waa engaged and that the plaintiff had heen
paid the sua of $50. Defendants further deny that the usual and
customary fee for auoh serTioea ia |300«
We think the affidavit of defense stated sufficient to
create issues which entitled defendajate to a hearing before a jury,
and the court erred in striking the second amended affidavit of
merits*
It is further claimed that the summons in the attachment
in aid was not served upon the defendants, hut only upon the gar-
nishee who answered "Vo Funds"*
Inasmuch as no evidence was heard, we fail to see
on what basis the attachment was sustained,
for the reasons herein given, the judgment of the
Municipal Court against Walter Heczek and Katarsyna Reczek, his
wife, is hereby reversed and the writ of attachment against the
Chicago Title and Trust Oos^any is hereby quashed and the cause
18 remanded for a new trial.
JUDGMENT REVERSSD, WRIT QUASHED AND CAUSE REMANDSD,
HALL, P,J. AND HEBEL, J. OOHCUR.
, -lift a S'xo'iscf g$i£'£t iifibaelsb b^Xtt^a^ dotAv aetfaei »*j»«to
^c i^ivsl)llljB &sfoii©ffl£ fcxioofta ^di ^atMttn at J&oias *tj/oo edt hsia
mii to d-aaai^fti;^ eil;t ^asvis ai9'£9ii aHoaAei e/ld" to*?
aid ^■Aeso&H BSXi&tB^sl bnp :3Jssoa.H isd-i^W Jani^ajs #lifOp X«qi:oimf]i
«4^^ Jacijaga txteairfo.fi.' Hivf 'sdi bsijs oea^avei ^dBtftd ai «etiv
.X«ii;;f v«fi a tol bsbftsiBai ai
'^SWL.At.n ^
38393
JOHU W. KEOOH,
▼.
£• J. MI&LSPAUGH*
Appellant.
APPEAL FROr
MUKICIPAL COURT
OF CHIOAGO.
285 I.A. 588^
MR. JUSTICE DENIS S. StJLLIVAU DELIVEHED THE OPINION OF THE COURT.
Tht« iB an appeal from a judgment entered in the Uunioipe^
Oourl In favor of tHe plaintiff, John is, Keog^, in the sum of tl37.00
and oosts and egainat the defendant, E, j, Millapaugh for dsmp.gee
resulting to plaintiff's real estate because of defendant's negligence,
Plaintiff alleges that the defendant negligently parked
his automobile on Michigan avenue in the City of Chicago, and left
It unattended irithout putting on the emergenoy brake, or that the
emergenoy brake was not in good working order and as a result thereof
plaintiff iras damaged by the automobile running through a plate
glass vindoir in his building.
Defendant in his affidavit of merits denied that the
emergency brake on his oar was not in good condition and states that
when he parked his automobile he securely fastened it by properly
putting on the emergency brake and denies that plaintiff was daaaged
by reason of any negligence on his part*
The cause was tried upon a stipulation by the parties and
it appears from the stipulation that the defendant's oar was parked
along the vest curb of Michigan boulevard about 300 feet south of
Ohio street and that the oar was on an incline; th^t the defendant
after parking his car went into the building adjacent thereto to make
a business call; thnt he returned in about 20 minutes and saw a
crowd around a building loor^ted at the southeast corner of liiiohigan
boulev=trd and Ohio street, which was the building of the plaintiff,
and upon investigating discovered that his oar had run into one of
'88S .A.I 5 8^
, 9» .;
OS:'
»ri
9* Pic ^ ri^aoTrit 5iftlaaL'a dXleoeoa
■'.:a(ti©
a'<,';i/^-
jdritfX'
•■■:;r> Jafc» <*ii* ^aoie
3
th« windows and damaged the building to the amount specified In the
stipulation, or |18T«00,
It was further stipulated that defendant did not lock his
oar when he left It hut that he did put on his brakes*
It was further stipulated that Police Officer Lalohelt
would testify on behalf of the defendant as follows; That he was
a police officer and was on duty directing traffic at the corner of
Michigan and Ohio street and that he saw an automobile rolling down
Michigan boiilevard and that it crossed the street and ran upon the
sidewalk and into the plate glass window of a building at 547 Horth
Michigan avenue; that after the accident he examined the automobile
and found that the emergency brake was not on and there was no
driver in the car.
It is quite apparent from the foregoing evidence that the
oar was placed on Vkli incline without any one in charge and in that
position such automobile was liable to cause damage.
From the statements made by the police officer, that after
the oar had run through the window, he examined it and found that the
brake was aot on and there was no one In the oar, it is quite manifest
that the damage was caused by the negligence of the defendant.
We are, therefore, of the opinion th^it for the reasons
herein set forth, the ^udgaient of the Municipal Court was correct and
the judgment of that court is affirmed*
JUDGMENT AFFiaiffiD,
HALL, P.J. AND HEBEL, J. CONCUa,
«rf* al bBttto^qB tnuoms ^M o* ■^alblliSQ »ffit b9rf^»mT.b httxt ^^bml ' suit
ti9dot<^ 'S^f).
uaoc
■rf*
. . ^ uIAH
38455
WORTH MIERRITT,
Appellee,
MOHTOR SAID & ORAVHL COMPANY, ) OF OHIOAOO.
a. oorporation, et al,
Appellants*
APPEAL FsdUi
MUWICIPAL OOURT
28 5I.A. 5 88
V
UR. JUSTICE DENIS S. SULLIVAN DELIYEHS0 THE OPINION OF THE OOURT.
This la an appeal from a judgment rendered in the
Municipal Oourt against the defendant, the Morton Sand ^ Gravel
Oompany, on the verdict of a jury, asacsaing plaintiff's damages
at |695»44, There were two defendants to this suit in the oourt
below, Morton Sand & Gravel Oompany and Sand & Gravel Liquidation
Company, It appears from the stRtement in defendant's brief that
the Morton Sand & Gravel Oompany purchased the Sand & Gravel
Liquidation Oompany and assumed all its liabilities, so in law there
was but one defendant, Morton Sand & Gravel Company, Plaintiff was
a salesman for the defendant and was engaged In selling sand, gravel
and cement on a commission basis*
Considerable evidence was he^^rd on both sides and the
■aln contention seems to be that the plaintiff w^s not employed to
"service the job" or to be paid for selling cement and th-^t he had
been paid in full for ail services for which defendant was liable.
What is meant by "service the job" is that when materials are sold
and delivered at a place where buildings are being erected and where
the materials are to be used, it is customary for the seller to see
that the materials are delivered and unloaded and th?»t they -^re of
the kind which the purch^iser desired, - in general to see that the
deliveries of materials are satisfactory. There appears to be no
question but that the plaintiff did this work, but the defendant
V 3;,
'ilOIMUk
Q^8t
«TTI»Hi)< HTX9V
V
t 0 taol^Mioqtoo js
88 2.A.lS8g
( ,&JiaAli&qqA
ttmoo SHT ?o MO' . aiMSG xoiiaut, .m;
ad* iti fce-i»i^aei oit^aigi; Leaqqs fl.B si aiilT
lavRiv %*. ba&B. aetro ,-vni=-0fi9idl) Sif* taaiM^^ iruoO XsqioiKuM
a98J5KPfi 3*l:T:i±aifiiQ: gaxafeSeeij ^x^ j-oifct«v 9xi* no jXaACfaioO
3-j8cf^ Italia' 8 'ixi.<»i;j£taa:e>.b iU iii!^ia«J'..tfe ©il^ aoi^ ex««»qq.' > ;'aaqffloO
ti^jfJXoX',1 .^pMioaoO i»v.9TD i ca£>'3i aoiroU ^tastaetsb 9ac iud eaw
•aXiiJMf noXeaissio sa9m9t> ban
0* Jb9x<-'X<Ttt9 tor iiai&lq »At ttid* sd ot aiaoaa aoitantao^ aUm
brnd ©d *fitf* £)nR .•ffi9tt0o SJSXXI r Mot «^* soiv^tae"
,»Xtf«i:X eew ^frufcao^eJtr tfalri-t* 'lol «»o1vt»r XXb icol lXi/!t ni fcXaq aescf
•rtaifv &na bs;ra«79 -^aifuS 9ts agflibXixrcT orraiiw aosXq b #j9 fca^dvlXafe te«
lo »i' xeri^ t cf.-t fcna t»9£)j=oXflu ^fl.« fieT»viX«l> 9t» 9iBlt9imiL •At tmii
Bdt tftii «©e o* iJiteann ai - ^b^ilh^b fftnd&ruq edt rioirfw bali 9tii
•n eo ci n«»gQfi eiacfT .xio^oalBlMa ata alAXna^aa \o aaX^aTlXaJb
2
Claims it was done without its knowledge ^nd that it did not hire
hiffl to do that work*
Oeorge Hartox^js: testified that he was the Vice President
and General Manager of the Morton Sand & Gravel Oompany; that he
hired the plaintiff for the fiurpose of serriolng the work; that
plaintiff serriced the work of the General Motors Co* at the World's
Fair, known as "A Century of Progress" and he was the only repre-
sentative of the Gravel Company within the grounds; that he told
Merritt that they would do what was right by him for handling this
work; that no specific rate of oompensation was mentioned for
servicing the jobs; that Merritt told him that he could procure
cement business if they could handle it and that he told Uerritt to
go ahead and that they would treat him fairly. The witness further
stated that he agreed to pay plaintiff 10 cents a yard on the san^,
3 cents on cement and 10 cents on line for any sales made at the
Appraisers Stores job; that conditions at the Fair were so chaotic
that they required more detailed servicing than any other locality.
From the books of the defendant the plaintiff obtained
detailed information stating the amount of material that was sold
and delivered which was added to the testimony as to the number of
hoiirs he worked and there was also testimony of people in the trade
who were experienced and knew the usual, customary and reasonable
charge for such services.
The evidence in this case was submitted to a jury who,
from the nature of things, are well qualified to determine the value
and weight of the evidence and wherein the preponderance lies. It
is not the function of a trial court or a reviewing court to sub-
stitute its opinion for that of the jury in this regard, unless
the judgment is manifestly against the weight of the evidence, in
which event it would be not only justified but it would be its duty
to correct such error*
t
STid ton bth i^ ^jtxtff 9^b9lmoa3i att Suodtivt 9aob bsm tl amisXtt
b£o& eri tf^rfJ jBfeaxro'i vn^qaoO Xdv^iO iwi* ^o ariif-stnes
•Wit ^niUba: ai^'^r of) f>Iuoy x^'i!'' ^'ri* ^JlTidM
lol: &snoi:*R«Mi' -niaqiROO to atnii oniosoe on ^-^rf:^ ;:iizov
uQ!!) t^ji^r ii esdciexid ^x:«ib«o
iu©w Yed* ^Bri* iiiiB JSedriji 03
jflomao «o t#n9o S
♦X*iI«-oI T«fito tm> n.«if* :i»r!*oin;©8 fewXie^afe ©toss Jbtiiirpai y^J^^ *«^*
' X c • ::d^ Iain©*- i^ 3«i*^t8 nollsaaolfli fealifi^aft
altfiRfloa^sat Jba.3 if^jsaio^awo ,Xnaeu arfJ^ <f9njf bns Jbaoaaiiaqxa axaw 6rfw
ax/Xjsv add- aalfflTS.. . j •;»l^fl^jjr> IXsw ftrr. ^^i^nt: . ^ t taotl
tfl ,9'yii ^oaar^bnoq® ' > * lo ^ilsiaw l»cfi
-dtta ccf J"raoc» r^fliwax" i^ . 'i.#»mii aric^ toa si
. -^-A-rr: -1 ' " •' ■ - ^tiat&'^K xXitealinam ti 'Wj; arfi"
«'r'\itr.i:r rXrro itoa *tf Ma^ow tt Jaava ifolrfw
»rv>cri9 d9tsB *o»itxa» •#
3
Under the practice of the Municipal Court interrogatories
were filed by the plaintiff to be answered by the defendant, which
was part of the evidence here.
we do not believe, however, from the evidence submitted
to us that the verdict of the jury was manifestly against the
weight of the evidence.
It is further claimed by the defendant that the verdict was
not in proper form* As already stated, there were two defendants,
Morton Sand & Gravel Company and the Sand & Qravil Liquidation
Company. The former company, having taken over the latter company,
assumed its liabilities.
One of the principal contentions made is that the jury
failed to properly determine the guilt of either defendant and that
they omitted to sign a verdict against the defendant, although the
order of the oourt in rendering judgment on the verdict aesesaed
the damages against the Morton Sand & Graviil Company. On the written
motion for a new trial in the court below this point was not called
to the attention of the court axid cannot be raised here for the
first timer Defendants further contend that a distinction should
be maintained between the Morton Sand & Gravel Company and the
Sand & Gravel Liquidation Company, and yet in their argument, on
page 9 of their brief, they make the following statement:
*Ti»» Morton Sand & flfravel Company took over the business
and assets and assumed the liabilities of the Sand &
Gravel Liquidation Company in February, 1933."
This contention asking that a distinction be made between the two
companies and other contentions of like character, are without merit.
This suit is merely one for services claimed to have
been rendered, in which testimony was taken, evidence submitted
and other investigrtions of the facts made and submitted to the
siitdi-ej^mnechTX ^itsaO i^xoin^M erf* lo ^oivtoctrq •iljf TC»6irU
no ^^nsmtJ^i* Tie. tX[fij?a)i?iov .. .. .• ■ ^v,, *..: Xa-^isti) A JbixAfi
4
Jury and they found for the plaintiff, upon which the judgment of
the court was entered and we think rightfully so*
For the foregoing reasons the judgment of the Municipal
OouTt l8 affirmed^
JUDGMENT AFFIRMED*
HALL, P.J. AlfD HEBEL, J. CONCUR,
38541
JOSEPH SVUMPFEL^
Appellant ,
▼•
AHKA 3TUMPFEL,
30^ERIOR COURT,
COOK OOUNTY,
App«ll«e* ) iTki^ifc'^M ^O Ci^
28 5I.A. 5 88^
MR. JUSTICE DEUIS E, SULLIVAN DELIVERED TilE OPINION OF THE COURT.
Tlili cause oaoe before us on a petition for leave to appeal
from an order of the Superior Court, which was granted. The order
of the trial ocoxrt, from which this appeal is taken, was entered on
NoTember 15^ 1934 on a motion to amend a decree of divorce panted
to plaintiff Joseph Stvuapfel on June 5, ISSS^ Said order required
that plaintiff provide all necessary transportation from Burgenland,
Austria to Chicago, Illinois, for the two ainor children of the
parties.
Xa Juni, 1925, Joseph Stumpfel sued his wife for divorce
on the grounds of desertion, in the Superior Court of Cook County,
Service was had by publication. At that time it appeared frc« the
proof offered by the plaintiff that he had sent transportation for
his wife and. two minor children to convey them to Chicago, but she
refused to leave her native Austria to come to America. Thereupon a
decree of divorce was entered on June 5, 1935, in favor of plaintiff.
Some three years later in M?irch, 1938, a petition was filed
to vacate and modify the decree so entered. On a stipulation entered
at that time and signed by counsel for the parties it was agreed
that Joseph Stumpfel would pay the sum of >U0 per month as and for
the support of the two minor children of the parties, and the petition
to vacate and modify the decree was disiaissed.
In March, 1930, the defendant, Anna Stumpfel entered this
eouatry but took no active steps to vacate, modify or amend the
decree of divorce granted in 1925.
In November 1, 1934, Anna Stumpfel filed a verified petition
,TRUQO fi'..; {
.YT-.-TO0 SOOO' (
XMWI
88G.A.I2 8S
-,3To*ne sew eaejtet ftl If^dcra^ eiiy if»iifw ffiOTt 44h:«o6 JUix* 9^ to
QOTOvib Tc^ .... ..*. . - -_ ^■...^„i-^;. ...j...... ^...^^i:^ ,c;...;l; *.,
,^#itifDO iooO to *tx/oO ioti9quB •ffd' at ^aoiil"i»»»Jb lo ebauczj} sri* no
9rft lao-tl tetrre^rfB it (Wait #«i^^ ;^A ^iiei^-soiXdi/a t^ dbiI e.";w toiva©&
' rroci/9T»ri? •flf>lT8j»A. otf 9eoo oi rtiiBuA tnltna imd sy'^^X o* fi*«0le'x
tot fofl« •" ri-tBOlB "I9t> Ui, If- ri' 'I .»:: i.'v Xfi^qKWtS (IqABOli tjSifa
loi.^it?*' ':-'/'>-' bfiilt X»!tcfiBt/.t8 ««flA tl^CC'X ,X 7»tf«aTa1iI al
3
to modify the decree of dlroroe entered June 5, 1935, to oonpel
the plaintiff, Joseph Stumpfel, to provide transportation from
Burgenland, Austria to Ohioago, Illinois. After a hearing an order
was entered on November 15, 1934, requiring the plaintiff to provide
all transportation for the children fraa Burgenland to Chicago,
Illinois* The order reads as follows:
"Ordered, Adjudged and Decreed that the plaintiff,
Joseph Stumpfel, provide all transportation and necessary
incidentals for the said minor children from Bergenland,
Atistria, to Ohioago, Illinois, in 30, 60 and 90 days from
this date hereof or in the altfmative th'^t lie shall pay to
the defendant, Anna Stumpfel, the amount necessary for the
above purpose in the same length of time."
The plaintiff, Joseph Stumpfel, not complying with this
ordex, the defendant, Anna Stttmpfel, filed a petition for a rule
to show cause. After a hearing the petition vras denied and the plain*
tiff was ordered to comply with the order.
On June 10, 1935, as the plaintiff had act complied with
the order, on motion of the defendant, Anna Stumpfel, an order of
attachment was entered directing the Sheriff of Cook County, IllinoiSj
to take the plaintiff into custody.
Motions were made by the present attorneys for Joseph
SttJmpfel to vacate the previous orders and for a stay of attachment.
The motion to vacate was denied, but a stay of attachment was granted,
at which time the appeal was prayed and on which it ooaes to this
court*
On% has but to read the order to see that it should not
sta&d. First it is not made to appear from the order nor is any
finding made in the record as to the age of the children, or their
sex, whether they are qualified as to health or mentality to be
admissible to this country; whether or not the quota of admissible
iSBilgrants frc»i Austria is filled, so that they would be permitted to
come into the ooimtry; and further the order does not provide the
amount of money that is necessary and required for this purpose or
0*
TDI
^-■:^yaC^
ri
Biiii
tf*iw
l^jiiitXot
.Xe'
©Xin-
rt r.o
Ub.
tJbr Z)eiIqf'Wf» .tort bs?4 ttitnif^io .9if* »,s tC^^X «0X «(mf^ flO
"to TSb-'.. ^ .alrqaix;*!? jbci. ^ .. iioX#oaj no ^tnl>%@ »tfJ-
ton tXjwxie Ji: *«"*£!* 'see o;t T©J"ro srf* b.n9v. 0* 4"ixtr »JBjd *xiO
xan 91 roil tatTo «rf? mo'r ^obsf. ^on ai *X iBi£l t^ha&<j^»
<»o 0* iti-iXA^ffSK to At:?-y. aitiXiUJp •t^v ^fi>ri;f •r^ii;^©rfl^' ^xei
3
to whom the transportation. If provided, shall be given and how
muoh of the transportation is to be given in 30, 60 or 90 days*
In other words, it enist be quite apparent froa a reading of the
ao-oalled order that it is unenforceable.
For the foregoing reasons the order of the Superior
Court is reversed*
ORDER REVERSED.
HALL, P.J. AND HEBEL, J. OOSOOa,
J.»..'
3dt lo ait. ^Bbrnr-
^ <, .AH
,_ju..--;:<^
38572
' APPEAt"filOM
1
LOUIS K0HT03,
Appellee,
▼•
MUHIOIPAL COURT
MIKE GAOIDIS and OUST 0AGIDI3,
Appellants*
■
OF CHICAGO,
28 5I.A. 5 89'
MR, JUSTICE DEHIS £• SULLIVAH DELIVERED THE OPINIOH OF THE COURT.
Tliie l8 an appeal from a judgment of the Munioipal Court
entered on the verdict of a ^ijupy in a forcible entry and detainer
action brought by Loxiia Kontos against Mike Gagidis and Gust Gagidis
for possession of the premises known ae 3547 Armitage avenue,
Chicago, Illinois. The jury foiind the right of possession in the
plaintiff. Defendants' motion for a new trial and in arrest of
judgment were oveTruledt
Plaintiff's theory of the case is that the delivery to
him of the chattel mortgage and chattel mortgage notes was a part
of the original agreement, and that by reason of the defendants*
refusal to turn over the same, this refusal canceled the contract
and that the plaintiff therefore had a right to the possession of the
premises in question.
Defendants* theory is that the plaintiff having received
#75, the agreed price of the merchandise in the store, by delivery of
the said |75 to plaintiff's lawyer, to be held in escrow until
defendants could secure the consent of the landlord to a lease with
them, and the plaintiff having surrendered the possession of the
premises in question, then when the consent of the s'^id landlord had
a
been obtained^ the contract wa^/ consummated contract; that the demand
for the return of the chattel mortgage and chattel mortgage notes
was aji afterthought and came after the agreement was made; that the
plaintiff had no right to make any such demand, because he was not
S7585
THUOO JA^IOIAUM ( ♦▼
.OQAOIHO 10
^ f>. O ^-^ -^ X ^ <'^>
.e*«sIXaqQA
♦ TEUOO aHT %Q aOIHI^O EHT QSHSVUSG HAVljaUB ,3 glMG JOIXeUL .AM
^arrn^vi? &gB&ttarA "f^SK 8i=; ftwon:jC assiaid'sq Btit to nolaaoeaoq «ol
•ri? Ill aoisasaeog lo ifdiUi arid" bauot \ix/j; «dt .sloftilXI 403x50 JtilD
\o is9t'T<^ ni bnP: Isirt wen .« tol noi*om •8ifl/sftii«t«a mtJ^lialBlq
j-XRg s SFw a8;fon a§i?stiOE I&d-^Rffo bam &gjs^iT:om X9**Mo til* ^o tBiif
•8*fl«Jbfr9l©b srf* lo itoess^ ycf *jpri;t £sfl«f ,*a««0WC3A XjanXgino arf* to
♦itoXtefti/p Hi a»8iiT5ai:or
0 \t6Vil9fc Y«^ ,810*8 »rf* rii 9alfort??rioi»« exf* ^o oeiiq Md^;^ eri* »fiV|
litxiif iroTOBS fli JbXori acf ocT ,isv»!?I s '1:1:1 tciflXq o* Sfl bt&B ndt
'•in d8'»oI p o* broLbap-1 fnitt to ta»uaoo eri# eti/osa X>Xwoo »*nAfcfl»l9i)
»rft l:o floi88«e«oq ©ri* fcs'xslMiarfrws j^nlveri ttl^faielq e/l# lnflB ««•£(#
fcjgif brolbnffl fclre Sff* "io tneaxtoo 9tii a^jfyf £t9{it ^nottBBsJp at •SBiaeaq
flUUB«£> sd* *<«jf* ;tOin*noo Jbsd'Aflit(anuios\£ttw *0£t*xxoo eif* ^bda JiD^cfo n^soT
ae^ofl •8J?!3ti:ofl! Xe#*fiifo £tff« ©^^rssrioiB Xe^^jsd© eri* lo niw^sii axl* %9t
©if* tr:f{* ;*!)«« t^w iMWB99Tg.B ei{* t9*'3:i« 9bro fcaa *ri2nrOri*T9*l« iXB a«w
on enw Mf ••jBWtMtf «lMajnMil> ifovv t^aus oafan o# tdi^ii oa bad m*aieXq
2
personally obligated, inasauoh as h« Ixad not signed the chattel
mortgage or the chattel mortgage notes, and that said demand for the
mortgage and chattel mortgage notes was simply an afterthought on
the part of Clausen, who» at the time the agreement was made knew
that the defendants intended to proceed against Thomas Tomlides to
oolleot the balance due on said note, after applying the proceeds of
the chattel mortgage sale to said indebtedness, and that said after-
thought was based solely upon the faot that a friend of Clausen
desired to lease the premises on behalf of a brewery.
As was suggested on the oral argument, this has now become
a moot case for the reason that the length of time on the claimed
tenancy, which was the subject-matter of the suit, has expired by
its terms. Many witnesses were heard regarding the facts involved
and nothing would be gained at this time by an extensive recital
of the controversial facts. Suffice it to say th-t we are of the
of the Municipal Court
opinion from a review of the reoord that the judgment/shoula be and
the same hereby is reversed, and as the so-called claimed lease
has expired by its terms there will be no necessity for remanding
the oausei
JUOaUENT REVHRStO.
HALL, P,J, AHD HEBEL, J, OONOUR*
s
c:-- rot bnjmeb bl^B lisdJ bn.' ^--esoa a-^B-gtrem l»*tirrfo Sii* lo »^«3*Toa
J aj29d©OTq add gfi.'. .- ^ ^^^ ^^Ij »oa*Xiscf aii* J-ftSlXoo
istl^ hiss ii^dt bnr t?a'.}nj/e.ia».:"r.i. ^iy^s o.r »!«« S^-SS^tOfli X<»t:^£ll0 bdi
fcoBjyeXC %© fens lit x « tsdt itOBl »rit ikkji? t-I^»Io« fcsa^cf 8flv jrljgiroxfi'
IstioBi 6viefl8*x8 n.i5 ifcf ©ax* Bldt tn &malM^ »€ blm^ -^aiAtoa has
lifoO iBqioim/M 3x13' to ,
8»r,el feaefiisXs bBilao-'iJii art 3- es .&/iis <l)»fiirE«v»ii: ttt fpldtBd naRB Sff*
«08UBO 8if^
38639
GEORGE F. KRSiaf, »■ Trustee^
Appellee,
T.
fZLLIAM H« aSRL, et al>
Defendanta,
On Appeal of
WILIilAM H« (Smh,
Appellant,
APPEAL FROM
OIRCnilT OOURT,
COOK COUNTY.
285I.A. 589
V
MR. JtlSTICS DfJfIS S, SULLIVAS delivered the opinion
of the oouxt.
This le an appeal from a decree entered In the Circuit
Court on July 11, 1935, in s foreoloeure proceeding. The decree
fotind that In and by a conveyance to hia of the property foreclosed,
defendrnt Wllliaa H. Oehl had aesumed and became personally liable
for the pfiyment of all of the bonds described in and secured by the
trust deed foreclosed and costs in-rolved in the foreclosure proceed-
ings ajBountlng to 158,8854 28, The decree further approved the
aiaster*8 finding to the effect that the defendant was personally
liable, and retained jurisdiction in the coxirt to enter a deficiency
deorde in the event the property failed to sell for a sufficient
amoxmt to satisfy the deed.
By his answer defendant Gehl admitted an interest in
the projperty and further admitted that he took the property by
warranty deed from the Carlsons subject to the mortgage debt, but
denied that he asstuaed and became personally liable for this debt,
and prayed to be dismissed from the proceedings.
^9B^&L"lf Bis ^mmnn /« sdhoso
.YfMtiOO
\,
*XL«Xl9qqA
&tvr>ttG »di at beieiiss ^otoBb b mo%l XjBSqqje aa al slrfT
90io?^b T'rf'p .r;n.tbft900i:q ^^a/aoXoo^ot 1^ «Jt t8€8X «iX ijXuX. no ^itroO
^^rJj to <i';i<! o* eoxxs^svnoo a xd ta.& at t&sii btusoli
an;. ■ ■ .. ..o'< i::.-' ■'■■.I -io :.i-^ to ia^esxffi ojW ttot
-f)9900i«T »:t08oXo9iol srfv ii JbfitrlovKi itQoo bnB b®iJoXo®io1: Jba«ft *80i:*
voaoiolieb a a©*fl9 o* ;fxuoo ^rft wl noJt*oibalTu{; BMilA^erc bn»3 (OXtffiiX
at *8«TSiai 118 b»d^;>li«bR Xfffr-O i-anbuatftb Tftweaa airi ^8
trf Y*i*«©-« *rf* aloojf »rt ^BAi be**i(jib« aeiif^iul bos i:tY»4ei;q wC*
tiKf t*cf»b »^i?f*Tei»s eff* oi ^tsst^jre tuooXrrjsO o^U aoa* B»©b ij^xwiMw
,td<)b ald^ 'rel 9X(f«lX tXX«ao»ioq 0ai6O«cf boe bamtniaji ed ^arfif b«i;a»A
Ko replication wafi filed to the answer and on a hearing
before the master the plaintiff failed to present any testimony
In support of the allegation of the complaint relative to the
asstimptlon of payment of the bonds secured hy the trust deed on
the part of the defendant Oehl. The master's report, however,
found In support of the allegation a personal liability of the
defendant Gehl. Upon the hearing, this report of the master
was approved by the trial court and a decree entered confirming
the naster's report and finding the liability of the defendant
Qehl as heretofore stated.
The plaintiff has not entered his appearance nor
filed any briefs in this court.
We have searched in vain both In the abstract and
in the record to find what evidence was introduced supporting
the decree with reference to the liability of Gehl, We have
fotmd nothing. Allegations without proof will not support a
decree, ^
As fmr Supreme Oourt said in the case of Hogg v.
Hohaann. 330 111, 589, at page 594:
"It is not true that a decree may be had upon averments
and charges. The rule is that the jurisdiction to ren-
der a decree rests upon the facts proved at the hearing
and which are sufficiently averred in the bill dlsiloslng
the jurisdiction to proceed to decree. If not averred
and established at the hearing the bill must be dismissed
for want of equity, «•
For the reason that no evidence was Introduced to
support the charges contained in the bill, the decree of the
iiitmmd » no baa nawguxa sdi oi bsXil asw aoitsoilqei cM
^ xsyewofT tttotr^T a'^feJaiim aiif ♦ifi*i) d-fljsoaaleb sri* to trmi odt
3drf lo xttitdiBtl imioBX&q s actf&-g9LJis sri* to jj-xojqiira oJt feflirol
< >^jE3^S dX0ltO^91C»if Sis Xi(»0
taa sofl32js»qq4> ai^ bexeta;* ton »jBd t"tUmtsSq 94T
: 1^83 a «a d-R ^£8a ,1X1 OE" tfii3J3?aac::.
* tXftirp* to Jiifiw lot
Circuit Court, so far as the defendant Gehl 1b concerned^ is
rerersed and the cause Is remanded with directions to that court
to dismiss the said hill as to the defendant Oehl for want of
•quity,
BECRKS REV!!R3ED AND CAUSI! RSMANDXB
WITH DIREOTIOHS,
HALL, P.J. AND HEBEL, J, COSCUR.
•iJU . . . iiStH CISA ,t.4 ,JJAK
38667
JOHN Oo TAYLOR,
Complainant,
OARL POOH, eX al.3
Defendants*
ROBERT J. WATT,
(Petitioner) Appellant
HOWARD K. HUawiTH,
(Respondent) Appellee*
APPEMS FROM
SUPERIOR COURT
COOK COUNTY.
8 5I.A. 5 89
MR, JUSTICE DENIS E, 3UUJVAN DELITERED THE OPINION OF THE COURT.
Robert J* Watt made a motion in the Superior Court for
leave to file a petition in the above entitled osuae, which leave
was denied, and it is frCHi th t order of the oourt that the m? tter
comes before us on appeal*
It appears that on July 38, 1932, Howard K. Hurwith was
appointed the receiver for the premises in the foreclosure of a
first mortgage for $165,000, for the purpose we assume »f managing
the building and collecting the rents and profits, although such
order does not appear in the record*
The record shows that on July 13, 1933, said receiver
Hurwith presented his first current account and report in the court
of Judge Robert £• Genteel, and the oourt being duly advised approved
the same; th?t on January 27, 1934, an order was entered by Judge
Robert B.. Gentzel that leave be given Robert J. Watt, Secretary of
the Citizens State of Ohicago Bondholders Protective Committee,
to file his objections to the receiver* s second current aocoxint;
that on August 21, 1934, the court by Judge Sabath permitted object-
ions to be filed to the receiver's third account; th'^t on September
17, 1934, Judge Harry A, Lewis overruled objections to the receiver's
third current account and report and approved said current account
MOft"
;Tq«qOc
(
Td88S
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'■•■■■:
<nOaYAT ,0 KHOt
• atcc"
.f-.rfc-
.■>■«
•■*■■-
^HOO^ ISAO
{ ■ '.:■
,.: ^
tTTA-; . . ciOH
G8c^ Al28S( ^Hir-^"'^ »I QHAWOH
,TRuoo SHT 10 MoiHi'io SET QaHsvijaa »Avijju£ .a eiK2G loiTSUt .an
trot ttuoU roit^quB 9dt at aoltom. a ^bem **«?W .t. trrsdeJI
«Iji^sqqi3 no BJj e»T0l9cr aMA*
B lo STt/eoXoa^ol- 9l ?!imexq Bdit ^ot titrii^onr ©ri* bttaioqqe
,fcioo9t ad* aJt %p.9qqs ton eaofi i©Mo
^•▼JteoftT i>ii«B t5%X «SX TcXi/l. ao d-^ri* avoxia Snooaic ariT
i/oo 9ri;f ni taoqei ibne tnuoo^r, iaB'xmiro ifertiT: airi batnaaaTq rfJiwTJt/H
javoTqq/? t>oaivi)r. yXi/l) ^niacf ttuoti eri# fine »X»s5'aoO .S *i9cfo<? »af>i;l» lo
egiJffL x^^ b9r9tne a^.w laftio nn ^^SSX ,VS: '%nflua&X, no *^!?rf# taaiaa arit
"to T[e*9T09G t;J*^v ,t, *tt»oo*' ff^vjc^ ©cf aveeX tfirf* Xasl'iiaC »2 ^a^M
tSa^^XitiflioO 9vi^oa:roi<^ ttrcnblodbno^ oi^.^ottfO to atr^C aaasicfiO 9di
itaueoor. ta^'xiav bnoo^m a'aavlao©^ edt o* s£foi*o»(;«fo alrf aXlt ot
-ioaftfo Aai-JioTsq K;^.erfRS s^JbirL ^cf ttuoo add" »-^5€X ,XS tBtrg^A ao i0di
r9<im^tti9e Ro i-(»rf* \iauor>or^ btlAt a^xovlaoaT axf* o* J&aXll acf o;r aaoi
s'rtavlaoart aif;r ot aaoilovtcrc i)aXiitC79T«t aXw9(X ,A y^xjiB agftcrl ,J^e6X (TX
txufOooM iaB^ruo blBB be-ror^qe bar J"toqai brre rf^rn/ftoo-i taaaTx/o biidt
2
and repdrt; that on Hoveaber 15, 1934, the oourt by Judge Harry A,
Lewis overruled the objections theretofore filed to the receiver* a
second current report and account and ratified aaid ref>ort and
account; that on Jaxmary 34, 1935, the court by Judge Lewis approved
the receiver's fourth current account and report after a hearing
thereon*
Mo appeal was taken from any of these orders*
It appears froa the petition that an order was entered
allowing the receiver to eaploy a resident manager, Sarah (^uadow,
at $16 per week*
The ijetition ftirther recites that the accounts and
reports of the receiver have been approved by the court; that
objections were filsd thereto, but the saae were not heard in court*
This statement is not correct* The orders in this record show
the contrary*
Thereupon the petition takes certain items from the
accounts which had been approved several yesjra before and states
that some of thea are purely improper charges and that the various
items in the accounts are incorrect, improper and itntrue; that this
information came to the petitioner subsequently, but it does not
say from whoa or when he got the information*
The petition further recites that on October 1, 1935, the
receiver had an order entered evicting from the building the resi-
dent manager, Sarah Quadow, whom the receiver had hired under the
order of the court heretofore entered; that the tenants of the
building signed a petition to the effebt that they wanted Sarah
(;j!Madow to remain and that the receiver was attemptipg to discharge
her and have her leave the building, which she is resisting*
The petition asks that all parties be ordered to answer
the petition within a short day; that a subpoena duces tecum issue
against some 13 individuals or firms alleged to have furnished
r
. Y«^-*K ©S^ • ■'■J^® ^^* <*5ei ,c;I i9«f«&- ' 'c'i' ;tfir6q»"s has,
,rx»l)io SBSfli- to xa.^ fmtt tteiLAt ajsw I««q^« OK
i>n,c .....-,.. ...:.:.. ...^tli^c; C-.
. .Ji... > • ■■■• "-y. ia»m&fB:tB elifT
Lexsven ■-■--■'■•■•• i--^-.' ' --'j d€>ldn adtfiw^--...^*,
r .. .*j-r.rio i»qou.v,tB.i X..- ^'■- ' '■■ ? 90108 tedt
, , Tftcfo*oO ao - • -'—:--— r3rt#iu1: floi^it*? uxlT
rjgrr^ilosi '' *'" •viw.---i . u.: ' • '' * ^aa fll«flS9t ©;>■ woJbJurP
»i/eei ai£2fii 522iJli iSiiSMaqcfuo £• i:;'" ;■'//; ;m-r', ■• axfijiv.- i.ji*i#*q 9ri*
fcorfeIcra/5: »▼«!( ot i)«aiiIXfi aatil -^ ^ ■ ^ £X mob #Bai«a«
3
material or services to the reoelTer; that the writ of asslstanoe
against the resident manager, Sarah Quadow, be stayed pending the
hearing on the petition and that pending the hearing Sarah (^uadow
be permitted to oolleot the rents and deposit the same with the
clerk of the court; that Hurwith be removed as receiver and such
other and further orders as equity may require*
At the time the petition was presented in court, objections
thereto were made by the receiver and his counsel calling attention
to the fact that the petitioner had theretofore filed objections to
the reports of the receiver; that the same had been considered by
the trial court and objections had been filed thereto by the petition-
er and the same had been overr\iled and that no appeal had ever been
taken therefrom*
From the record as presented one cannot fail to observe
that, apparently, petitioner is interested in keeping the manager of
the building, Mrs. ^.^uadow in possession thereof* Just how the
petition of tenants to retain the assistant of the receiver in her
wishes
position ag§,ln8t the receiveirs^/would be conducive to a successful
manageraent of the building, it is difficult for us at this distance
and with the meager information before us to fathom, lye hesitate
to adopt defendants theory that this petition was merely filed for
spite. We fully agree that a receiver' s report should be closely
scrutinized in order that the property may be conserved for the
benefit of the creditors and owners*
While it is the duty of the court to pass upon the receiver's
reports and auay objections thereto and also give to every interested
person who properly appears before him an opportunity to be heard ea
any objections to the actions of a receiver, either befofe the coxirt
or before the Master, yet - once having passed upon the objections to
the receiver's report - the court should be equally as careful not
9onB*aia«B to *iT^ "^s^i- f-it ;'r«Ti!*©©t sxf* o* ••oi-nsa to Isi^wSUi
vTOtr.uV de^jft.:? -gall ^nibacii baB iioi*lit«q ^d.& ao ^Ir^^d
ftn Qta!i» Bdi iieoq9b bas s&n^r erfJ #09lloo o* b&i^iai9q acf
^mtupsti yjsajj •^ii/p® Sis »i[a.brio x9ti&isft bas t»d*o
fcfloi^os^cfo ^truoc al JbsiJfxee^iq saw noi^iteq 9&:i •ati* aM* *A
iZoi#aa;r^B ^alll&o Xsaiix/oo eixl Jbuijs Tavxso&n: std^ X<^ »£>«& dT9w otftT44#
Yd f)9i9bianoo used i).Rri aai^s »iS* tjarf* 5«»vi»05x fwJi- to sJioq®'! «£{^
roi^itaq arid- XQ ocTetceild- baXlt fl»«<f l>6if eaoi*o«j;cio Jb«B Jajwo X«ix* ad*
0£[;t vroii itauL .toe tail ;t xiolessasoq isx websitf^ *e'iM «;gniJbXXiJCr 9iii
asrialw
^i3«©03oe -'! o^ ©vioxii>«oo scf t>Xj:ia«i\j^svi»p9i 9d& iBalB^ nottlmoq
ooaAtatb eid* ;*•«! bu toI i'iiroitliJb ei *1 »;gniJbXl&d tif* to *a»ffl0aAOJWi
tot 1)9X^1 yXeidsJ aRif rioi#i:;t«q sxriJ ^M* Yio»d* ii*jaBi>09l8i) tqoJt)jB ot
tX«it«Xo ©ef JbXi/ode *toqo7 R'tavxftoott je5 rfcilt eexgi? ^XXwt aw «a^Xga
•tft irot JberisBfloo ©d y«« x*^®'?©^^ '" ^ '^ ^'sd* tetto al fcssifliufxntoa
itviaodT od^ itoqw efiiiq o# ^licioe ad^ to \tub ad^ ai ti aXXdf
Jb«*«a«9*ifi ytcsva o* ovig oaX/^: fcixa o^atadt aaoi*o©{;do v*^ ^ojh 8*^oqau
ao fit sod 90 ai x^-f^J^TCocrq© aa mii< axotad ei*t©qq« ^Xxaqoiq ada' aov^aq
txiroo iu.-^ 'vv^-^r.^i ^e£i;^l9 ^Taviaoai: »^ lo aaoltfoa ad* o* aooitoatdo x***
Dt »flai*o»(,'.^, .. iioqti bae»«q gaXvad aono - *9t «'S«*»fi^ •d* aitotad to
4
to oreate additional ooats and fe«« against the estate by again
going over the same subject-matter that has once been passed upon,
without a showing as to why the evidence in relation to the object-
ions was not presented at the time of the fomer hearings of the
objections* The trial court must, necessaj^ily, have some discretion
in the handling of these matters*
Xa this case the petition does not state why proof covild
not be obtained at the proper time, excepting the statement that
information came to them since that time*
During the pendency of a chancery suit, the court must
of necessity retain jurisdiction to pass upon any and all actions
and doings of its receivers, as well as their reports and accounts^
and the practice Is to permit parties in interest to appear and
file their petitions on a subject matter which has a substantial
relation thereto and in which petitioner has an interest* 'Aether
the petition is sufficient or whether it requires an answer can
then be disposed of by the court*
For the foregoing reasons we are of the opinion that the
court should have permitted the petition to be filed* Therefore the
order of the Superior Court denying eaid petition is reversed and
the cause is rewmded for a new trial*
ORDER HSTEHSSD AND 0AUS5 REMAMQKO*
HALL, F*J« AMD H£BEL, J* OONOUH.
Koi JsToellJ »!ir08 sv.'jil «yIl*«iBas)©fl »j-atxiB ^wo© l»t%t ft^t •»ao2*o&tcro
:io::o toonq t^w S'^r'tr' .tacr e^i) «0itl*6«[ «^# ®»a9 Bid* fli
saol-o* lis fen..*!* xfl.e uoqw esjsq oi^ aol^oife^iax/t ai^'tni ^#ie«80*xt 1©
, .-fl[tro«9« bar, Btieq^t %i9iit hs XX©« «« 48*r®TJ:»OH^; 8#i !:o sgnlob li&i
isfXJS i:«eqqB o:f *89^o#ni ai BsitrBG ^Itaaaq o* ei •-oi^osiq eiii has
iMitaBtBiSk'B € ajPfC rfolrfw ^©t#«B il-est^^ye a no «n«iri#«q Tiarii^ alil
38407.
In R«: Sstate of MARIA TURNl^^^
Deceased.
MABT inLSTCHSR BRiOilUSH et al . »
Appellants,
f
T8,
VSSDlMASTi W. Pm&, Executor,
eto« I Ov suL • I
Appelleeg,
Ai'PEAL illOM CIRCUIT COURT
07 COOK GOUiiTY.
28 5I.A. 5 89^
]jR« JOSflCE UA7CHETT BSJulVBBS}} XH£ OPIKIOK OF XHS COURI.
Xhls appeal is by certain persons who claim to Ise the
heire at law and next of kin of Maria Turner, who died at uhici
Illinois, February 29, 1932. Another phase of the natter was be-
fore thia court on a former appeal. In re Estate of Turner. 275
111. App. 566. There, it appeared the Probate court of Cook
eounty entered an order setting aside a former Judgment which
found Joseph OlTet to be the only heir at law and next of kin of
ICaria !Fumer. The Circuit court, upon appeal, held the order was
not a final determination of the heirship ef Maria Turner and dis-
missed the appeal for that reason, lliis court also held the order
of the Probate court was not final and affirmed the decree ef the
Circuit court*
The evidenoe in support of the daia of Joseph Offet (if
he now persists in sueli claim} is net in this record. The eri-
dence is inconsistent with such claim.
While the Circuit court made a uegatire finding that the
olaimants are not the heirs at law and next of kin, there was no
affirmative finding as to who are suoh. The decree leayes that
question undetermined. The parties who object offered no OTidenoe,
Zhey contend the competent OTidence submitted in be.ialf of claim-
ants was insufficient to prove their claims prima faeie and say
If it is conceded the evidenoe was sufficient, nevertheless it
,VOJ^S.
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3C00
i . : ■.■■.'.>x -Jraili 'lo'i £jr,9qqa Bdt b9BBtm
snnl'Vti I afiw cTauoo s^tc^Qfoi^ arf* 'to
♦ Kuoo IxuotiO
li (oii^lo liosiB al sd'alvxftq won 9d.
,:i\i£Lo c£9»9 il^lw ia&iaiBaooai at eoa9b
oa 8«v 919x1;^ ,aia{ 'to ;^X9a Jboo w«I i« snldiat •jrU ion eo^ «^asfidi:«Xo
t«rfi 89v«9i soios^ o/fT .xious d-xs odw oit a« saJttall •rltAorxi'tla
.•onobirs ofl l>9'xeVto i09l<io odvr B9iirf.q 9iiT .b»ati3xs>i9btw aoiim^up
-aiMSA 'to 'tXjBXiOcT al baidiai'iiut •oa»BxT9 ^oetvq^uoo oil^ ba«;^iiea xoifX
^«e Z^OB oio4dl »mir<i eraiclo lieiii ovo'xq «^ ia»l9lYtu»al umsw atas
-aifc Isrie
1t9i)1C
11) *»'tlU rtqs"
-iV9 '
appear* under the undisputed evidence, as a Batter ol' law, tliat
elaimants, by reason of lupedlments (which we will later consider)
are not and cannot te held to l>e eucia heirs at law and next of kin.
The eridenoe does not disclose the precise date of the
"birth of Maria Turner, It appears, however, tlaat she was bom in
Windsor, Canada, and, the census of 1861 would indicate, in the
year 1860. The maiden name of her mother was Maxy Elisabeth Wood-
fork, who was born a slave and prior to migrating to Canada lived
at Lynchburg, Virginia, She was a person of color and lived with
her family, as the evidenoe indicates, in a frame house on koDougal
street in Windsor, The evidenoe also tends to shew that she was
■arried to Lucian Jletoher, who was also known as "Evolution"
Fletcher. The names Luoian fletcher and Mary Elisabeth Fletcher
appear upon meaiorials of indentures conveying the real estate upen
which the family afterward lived. These memorials were made in the
year 1859, the one showine; the conveyance of property to hary S.
Fletcher, therein described as a "spinster," and another showing
the conveyance of the same property by Mary £. Fletcher to Luoian
Fletcher, ^he assessment roll for the second ward of the town of
Windsor, Canada, for the year 1859 shews the occupants of this
property to ba •Fletcher, L, C. ••; that he was by occupation a
laborer, was a householder and that his age was 35 years (indicat-
ing that he was bom in 1324.) The same assessment roll for the
year 1860 shows the oooupant of this property to be "Luoian
Fletcher"; that his occupation is "ccm.—Lab,"; that he is a "free-
holder" and 36 years of aga. The census already referred to, ap-
parently taken in 1861, shows this property to be occupied by a
family eons 1 sting of one mazried person, a washerwoman, kary
Fletcher, wno was bom in the United Stc>tes and 33 years of age
at her next birthday; that the other occupants were two feoaales -
Sally, born in the United States, six years of age at her next
r
.aiat 1o ;^X9a has vr^X ^>s vrti&d ueua 9di et hi^ii 9€ tomum bat^ ^on «xs
-i>ooft ii;^9ci;6^i;It'^ vt '^jaen F»htMm •xtT .0681 tA«x
,i.^Ai.f«ri. n«l :>{.•. I of ha tiiem
t^M-.i- .,,-:-.,, asinuftix •^^ . ■ 7dot*Itt
..,,. ^ : -^•, ;M.-;r5h,-: '\q alaiioaK..i_ ..,;_,^ i^aqqa
»ii f , ,wio#l* Tc^-i'i*^ »^i* iioJkxiw
... ,^^ .^i'f9iia »flo 9ii* ,»e8X T««x
to n'^<j* •■ - ■ . :'.>ic;-„- -jtiajB f»'^'-' - •."si'?
©if J .•..-„•, ^ „■. ^ ToaJiiiii;'*'
41 noi •' « '-i i.' .^ !j o \;.u c:a>-- -"v; u frii'v.- ; l . -i s' i ■' " 'TS^OTfl'
"^AOibni) or "■ - ^ ".yj .i gis«a«oil « e^jv ,t9<xo<f«X
-••n't* A aJt 9d ii^ri:] ;".-.. J'j^qraoo pxr jari.t ;"^»riot»X*l
9^ to a-i.-ci . ■ iD^>vtxn , : rfottXI
9
birthday, and Maria, born in Canada, two years of atf« at h«r n«xt
birthday, and two males - MoseB, bozr. in th« United States, four
years of age at hie next birthday, and aampson, born in Canada^,
who would be one year of age at his next birthday. The aesessaent
roll for the same property in the town of Windsor for the year 1861
shows the occupant to be "Mrs, Weteher, widow, and freeholder,"
The evidence further shows that Sally was also known as
Sarah; that she aoTed to (Jhicago, Illinois, and was twioe married,
first to Nathaniel Brown and afterward to Robert Thornton; that
both her husbands predeeeased her, and that she left no ohild or
children her surriYing. Proof of heirship in the estate of Sarah
Thornton was made by the testimony of Maria Turner, whe stated
that she was her sister; that the name of Sarah's father was EtoIu-
tion yietoher; that the name of her mother was Mary B, • that both
father and mother were dead and that both died prior to the death
of Sarah Thornton, whAeh was July 18, 1919. She further stated
that her father and mother were carried only once and then to eadi
other; that three children were bojm of that marriage - Sarah, the
deceeuied, Moses, i^o died before Sarah at the age of 24 years; that
Moses was never married and had never adopted any child or children;
that she, herself, was married to S, B, Tuimer, who was living;
that these ehildren, Sarah, Moses and herself, were all the childrw
bom to her father and mother, and that they had never adopted any
child or children, so that she (Maria Turner) was the sisteA of
Sarah Thornton and her only heir at law and next of kin.
The precise date of the death of Mary Slisabeth Fletcher
dees not appear, but Albert Venerable, who lived in Windsor and
went to school with Sarah Jletcher, testified that he did not know
anyttiing about the mother of Sarah, but that when he was five or
six years old he attended her funeral and r^nembered seeing Sarah
at the funeral. He was 69 years of age when he testified, so that
r
auot t&dj^fj'u bBSta*J fx& xsi fi3|o«f ,«»ao^ - a»Xeai oirJ brut t^ltjlctiitf
i-twrnaavs^ii nxiT .-^cft^-iWiicf i-xen aiil is 93^« 'tc ■i4So>c ©no fttf Jbiwow edw
•.«»l>Ioj<9»it'i ibae ,wofciw ,t©jSoi«XU .bt^kI* »rf o;? toeQuooo »ri;t Byrodtt
«^ .7 ■\rXX«^^ Ois t»iit%u'i toa«|)iv^ ©riT
,^i?ii«ffi ftolw;^ aaw has ^eioaJLXII ,osAdXj]iD ot bevau 9dM t^tit {ifeadS
10 bll-do on yi^Ki. arie **i; , '.axi i>#ai;«o»fe»:tq «.b«jBtf««£L I9il cito^T
liexjBd 'to '^^f^iri*i 9di cil qifjeildJi 'io 'looiU .gaivirxwa nt»jcf a»ifcXJtxl(?
-iiSov-y: n.'z^i 'i-^^ij-'i s'ii't.- .jia 9di j«aJ- jiaJaia ^9X1 ajsw ©££5 iniit
tUm9h 3i±i 0) loiiq i^tilb kU9^ i^tii l»ae hAQh 9t»w asn^ea fcxiB i;8xi^«1
beisiB i^iii-iw't axiii .QXex ,6X x^^^ •"^ ito|*r ,ao*n2d£lI itex^C tko
9tii ^dRUMt, - ©s«iitaisi iwd^ w. mod ^yx^^f OBtbliiio ms>xiii imiii ir^dto
iMsa ;«'X£©^ ^S 'to fi-^ 9i\it iA Atvta^L vtQti^i h^lb oxdr ,»»aoM ,l)0a«iiofi^
;iai:xJ-iin 10 i.iifCy -^flft ijoJ'q;ofcj i.ov a L£xi han Jbsiti^ai itv©a ««w 9»soM
\,,-^.. - 0.-W ('c.-'mu'i 4 . . -. .;9i"cit«a ajiw ^tXsatsxl ^aiia t«ii^
-« Jbe^qoJtu r-iv-,., Mrri ^axt^ ^jb^^ biu ^i^tkisM btm %«A&xt tasL oi trxodi
to fta^ei:6 v.. ^. .v (larnxiT AltJi^iii) ejia ^AxiJ' oa ^tssrblliio to I^Xlxlo
,niji "to &x»n ban. w»£ tA xfceri xX-c^ ^^^-^^ ^«* noJ^raoril x^r-t-<«i
3»ild^0Xl. rUddasXX'i X"^^ '^® il:t£«>.b »xi^ 'to 9t&b »«!iO»T^ *£CT
bfM YoaXtniW ai b^rll oeIw .aluaiea^V #i«crx& $u<i ,x»«qqa ^on 8ao^
wooji ion bib ail tifXJuT 6«i'tJt;»s9^ ,i*£U)i»Xl> ito'x«£ xUlv X9p/i09. fi ^{i»v
no frn BAw ei( cwiiir isidi iua .ditaa^ 'te 'X^ii^ota ttii iuods ^^aixiixfl*
dmxsQ ;gAi«a« b(ff^it»iim% bOB lA*i»au'i t^ti k^bstbii^ oil bio bimbx xta
^*iii oa ^h»i'iti'-' ^ ■' ^ - ^~ '■■' rxjiot M ««» a^ .Limeas't «•--+ ^«
h«r death evidently occurred about 1872,
The eoEifflunity in which ttie Fletchers lived at Windsor
•^HB a colored coEjaunity» There is no direct evidence as to hew 9
exactly when Mary Elizabeth Woodfork migrated from Virginia to
Canada. We can take official notice of the historical fact that
in many of the states of the United otates at that time the normal
status of colored persons was that of slavery, and that the law ef
the nation required that fugitive slaves escaping from service
should be returned to their owners ii> the states in which they
were boiuid to such service; that el&very was not recognised in the
Dominion of Canada, and that many such slaves sought to obtain
their freedom by crossing over to the jurisdiction where slavery
was illegal. 7he only otiier material evidence so far as the
Fletcher family of Windsor, Canada, ie concerned is hearsay, ad-
missible only for the purpose of proving pedigree.
There is teetiiuony of this kind to the effect that Lucian
Fletcher, who was married to tnle slave woman, was a white man;
that he came from a prominent Virginia faiaily of the same name; that
he had beeit. involved in some troubles there which caused the fataily
to desire him to leave; that he was given two slaves, a man and a
woman, and left Virginia for West Virginia with th«H; that the mao
slave died; t/iat Lucian became involved in serious trouble there
and left with the woiaan slave. Journeying toward Canada; that at
the Canadian border the colored folk* refused to let these two pass
over unless they were married; tliat accordingly a cerejuony was per-
formed and they assumed the Marriage relationship; that thereal'ter
Lucian Fletcher went to California where he died of a fever. This,
the record discloses, is substaiatially the tradition of the i'leteher
family of Windsor, Canada, concerning the origin of that family.
The evidence already recited indicates tnat, like most
traditions, it in some respects inaccurate. Ihe memorial of the
r
Oi- eiisia'xi'^ arotT: Jv»i'Aff,L«J TfTotfeO'dVf ff*a^cf«aJtIH xijSsM flftilw YjC^o«t»
*Bd* #o*»l XAOi-r<^tcirrf o/f icJ-OH ijsioiTl© 9SS& l«so ♦W .«A«ja«0
J TTi-i » , -rsTjsXa 'to ,tj«ri^ a»ir 8ac;8T&<? 1>»i<jXoo 1o aui&tn
ax£;r<^o oJ' iiieiU09 B^vjalst ilaus xR;9j« #iti.l;r ^im ,«&^sxx£>a '£0 nolctlAOfl
"•■♦'•'? *"v^- '-oau«o iiclriw 8iiid;J^ oaXduo^^ aiSGO ai tnvlornl ew^rf Iwsxf fill
« r:ii/ ;u,si.i J9 ,s@V£X8 off^ ttevis fiaw ail iBii* ;3ra»X o;^ n Iii o'xisej^ o*
tfma ail* taili ;«o^ xi^Jbw aiaig^l? ^8©W ifti fiiftts^iV *l9X bn* ,fl««DW
9Trii5 dXcffiu^l atJoiT»« ui *»vlovnl 0flft«©9<f ewiXetril J'feit^ jiioil! •vjbXs
t ::.^ ;«fc«5rttjQ ftitewct ^fli\;«i''*«®t ,*v*jX« rta/aow »flJ liJiw St9£ btsa
latljB^wefifJ J-«xl* ;^liianoi:*AX«^ ©a*-^'****^ *^ I>»«6i«a« -^taxl* Jena fiamial
^tirf.: ' -^tsjdv jaiino'iilsO o* */if»w a:ox<4i*eX'i tmlnthl
•ntinfr'L-i ' ijiJiiA; ■; adi xlLtttinBtrttfif at ,B«»oioaXf> JbtoOft* ©xW"
.^ri-y;! J..-.ij 'TO »u* sBliifioao* ^ahatatQ ,ioaJ!>al« 'U x^lam't
*«oai aaiil ,*Ji-^^* aolaolbnl b«rid9T X»««isi:# •©it^&iv - """
Arft i .atfl^Hl' - aawa nl ^i ,^
rcfcl estate trar.eactionB, ee we have already recited. Indicates
that Mary Slleabeth Fletcher at the time oi' the purchase of ths
real estate on which the fcoidly lired in Windsor was *a spinster."
ilar&a Turner testified positively in the estate of her sister,
Sarah Thornton, that the father and mother were jiarried, and only
once. The relationship the^ ass med to each other shows that ths
public officials with whom they dealt recognized the exiBtenee of
this marriage between then, but the faots that the oensus report
shoY's that two of the children wwr« bom in the United States and
that Mary Elisabeth was described as a spinster while dealing in
real estate indicates that the marrisige took place in Canada and
not in the United States,
without dispute
The evider/ce further shows/that a certain L«cian Fletcher,
the son of Elijah Fletcher imd Maria A, Flstcher, was bom at
Lynchburg, Virginia, in 1824, His naaie and ag« are therefore
identieal with that of Lucian Fletcher, the father of karia Turn«r
and husband of Mary Elizabeth Woodfork Fletcher, The ftvidence shows
that this Lucian Fletcher of Lynchburg, Virginia, did not go ts
Calif ornia^in search of gold in 1860, nor did he die of fever In
California thereafter. On the contrary, the records of the United
States Var Department at Washington shew that "Lucien", naiae also
known as "Lucian Fletcher," served as a private and sergeant in
Captain Hardwicke's Company, Lee's Bettery, Virginia Light Ar-
tillery, which company was also in service l^ith Braxton's Battallco
of Light Artillery, Confederate Stetes Army; that he enlisted May
23, 1861, at Lynchburg, Virginia, to servf during the period of the
war; that he was assigr^d as a private to Ceptain Pieros B, Ander-
son ^8 Company ef Artillery, irtiich subsequently became Captain
Hardwicke's Company; was promoted to the grade of sergeant Juns 7,
1861; reduced to private December 81, 1861, and was reported en
the roll of the oo^N^any as present to October 31, 1363; that the
f
99iG9i!^at «Bf>;fio9i \bsi»'iSj» WT00. -if* *a ^anei J^Oj^drtA^t »^i»;f89 X«ei
BdJ to BSiriioiuqi 9xii 'to »«/ j ?«ri»*«Xi. JEJ.#«GrjBsiIS tji^jM ^jsiW
io 90x^:^8 Ixe Ad^T |>6slm^o&«'x ^X«$& x^^ ei^^ ct^iw sietoilto oiXd&9
l>as Q»^-:^t@ b9tta\i.9^ nl fixocf oisrw arUbXJtipto «ii(;t 'to o'vi Stidi aroite
baa ASynnaU ^li: soislvj iooj a^i'xaisflt »jLi.f ;fsjDi.^ sdj'jaaifrul 9iBie.9 la&t
•XKaiuX mliMd "io -tj^dv^^al »rf.t s-x^riuiftXl tmiassJ. 'to SMiiit dSi'W X«fll*«96i
«wo''2 tvoaof Iv ,'s;':*ci[oi»X*i :i:xotft9QW d^9cfa»iX5i ■^'r«ll t^ bn^fiuifA fenta
nX 1 / io/', ,0d81 ttJt feX»l "io rfftiusoa aX «Jtfn^1iXsO
tf i!Ui?4 .T-^ja hem atuvliQ b a«» ij^vitde *»t»ifo4h»Xi smiouJ,^ «• awejcxsC
miluiJifiil 9'*!Kif7c«%^ iltkir ftoXruA* at aaX« i»«w ^osqwoo xfoXifw ^^ptaXXJr^'
-Tfthn/v .a •tnelH flij»*<|aO o* o^avXa^ ^ «« iJ^saf^Xaaa saw ori iBilJ- ;'X»w
adaitiB'O •xieo'^cf ■•cX**i9|ip»0£/w« HoXiiw .tts J^i^i^'xA to ^c^mqmoO u* aoa
'■—)■-- :.:.. . ,ieex ,Xfi -sanfiBWosC •^iiYiier o;J i^©o«i>«n :Xd8X
-, - -^^- - •* to XXO"! •Sii
next roll call on which uls naiae appeare ia that covering the
period from September 1, 1864, to December 31, 1864, which snowe
hlA "abeent at Richmond undergoing sentence of g.c.B, ; that by an
order dated Mareh X3, 1365, designated a« Special Order ^o. 65,
Department and Army, Borthern Virginia, the eentence of the general
eoart martial was remitted. The Union Prisoner of War iiecorda
Bhov he was captured i^ril 2, 1865; that he wat iiuprisoned at
Vert Delaware April 4, 1865, and was released from that pest June
20, 1365, on taking the oath of allegiance to the United States,
His personal description is thus recorded:
"i«s 37 years; place of residence Amherst County, Virginia;
complexion sallow; hair dark; eyes gray; height 5 feet, eeyen
inches.*
A photostatic copy of the oath of allegiance which he signed ia in
•Tidenoe,
The faiaily Bible of the Virginia faiaily of the Sletcners,
to which Lucian, the huebamd of Frances Sverett Jj'letoher, belonged,
was produced an the hearing by a member ol that family, in wiiose
possession it now i9» There is written in ^ongliand on tiie fly
leaf of this libit, the phrase, •Lucian Fletcher, Tusculum, July
X840," and this phrase was identified as being in the handwriting
of this Lucian ?! etcher. An entry in this Bible also shows the
1>irth of Lucian Slotoher in the year 1824. As already stated, the
signaturo, •Lucian Jletcher," appears on a memorial in Canada for
the eoUTeyanco of real estate in 1889, Howard A. Rounds, a hand-
writing expert, testified that the signature on the memoriaa for
the conTOyanee of real estate made in Canada in 1859 and the
signature on tho oath of allogianco taken by Lucian irietcher June
20, 1865, were mads by the same person. It w%s stipulated by the
parties that another handwriting expert, jutr. Walter, w^o was engaged
In the Hauptmann trial in the Lindbergh case and could not be
\--: ; ,31. . -)fjjfl'' aid.
*in;i, ,. i Laaja'.;- < '38X ,* IttqA •xaw.r . ■ioU
,sas/'i>.t&r4 9r:j to ^Lt-t^'i Blnir^tiy »{^i to aloicf ^Xiais't •JtlT
311^, , '/tf gall ft© b»pubO'iq taw
^XuV. ,Mi/Xtto«i;T ,«efto*eXU ««l©»a'* ,?»8«nilq arii , r
Sm HXcfife 8i , t«r!od'«X'^ ;-u3lo«dL ejtxf^ It
»rj .(-iS^o^i ^i5««»iX« aA .*e8i isxto^reX^-
-i)ii.-i - ,. ■■!;.; , ft^ja^ao Xa^i 'to »0ixeA!;«Tnoo erit
itxda** ,;Mt«<pt» 8^*l«w
v«#pxij^.. . '•«« •'if* "^cf •fcs« ©itow .fidex ,os
9d itta bill. y«<jo ii8i«Jfealu. rutouuTerwiH 9di al
present "by reaBon of that engagemeiit, would, if present, testify
substantially to the saai« opinion. Ho evid«no« to the contrary
was 8ul3uitted«
The evidsnoe also shows that a marriage lioense was issued
by the clerk ol' the County court oi Amhierst county, Virginia,
October 23, 1880, to Lucian Jrittcher and JPrances iSrsrett, and a
return upon it indicates that they were married about that tine,
vhioh was, as we have seen, after the death of kary Fletcher of
Windsor, Canada. The license states that both parties were whit*;
that hs was 56 years of age, she 35; thnt the parents fof the hus-
band were Slljah ajid Mary A, Pletcher, and that the hueband was by
occupation a farmer. A death certificate sho vs that Fraiiees J.
Pletoher died January 1, 1932; that she was the widow of Lucian
flsteher and was bora fieyember 32, 1344.
The evidence also shows that this Lucian Letcher, husband
of Frances Fletcher, lied in Virginia in 1895, after the death of
Mary Fletcher of Windsor, Canada, and before ths death of Frances
•▼erett Fletohsr, The elairaants, Mary Fletcher Braamer, Flavonia
Fletcher Coffey and Cornelia Flora Fletdier Grow, are, as the evi-
dence shows, daugt'iters of Lucian Fletcher by Frances £. Fletcher,
Another daughter of said Lucian and Frances was Lucy Fletcher Hill,
1^0 died leaving an only ciiild, Leslie Hill, w]%o is also dead; both
died before iiaria Turner, Leslie Hill left aim. surviving Jenette
Frances Hill , Yirginia Peace Hill and Wanda kae Hill , hie only
heirs at law and next of kin. These three dau^aters of Leslie
Hill and the three daughters of Lucian and Frances Fletclier,
namely, Mary Fletcher. Bracuner,. Flavonia Fletcher Coffey and
Cornelia Flora Fletcher Grow, are the clali/iants. They all base
their claiais upon the theory dhat Lucian Fletch^^r, father of
Maria Turner and husband of Mary Elizabeth Woodfork, was the saSM
%
»l>9^^1iucfua SAW
,»ml5- *Aii;^ ctijocfii b^ii'X&n 6i«v ^«nid- *£j.lilt e^JAaii);.-).- .-luSsi
n&ivul to wofcJtw Bf{;t eisw eris Jcil^t 4^5§I ,1 ximJOBl Jb^iJb i«!>fie*«^
io /:;r«ei> »d$ t&il^ ,eGeX «! «iais^iV at b^il ^'i&ds>i»l'^ »»oai«t *le
aiaovj^r^t .Xfiflnasoa ttsiiolaiu x^^^ .ai-immAAla arfl' .terfc»;J»X'«- ;^J©teT8
jWoo ;fei3->fe 0 'rfw ,XXiB »ii«OiI ,bXi.'io ^jXao ao aoiy^ftX b»i.b oiir
Xlno filti «Xxitl 9B:i «*tt«t JbfMs XXIH •3*»«1. jstini^iiV .XXii. s^oiuii^
ii4Xb»J 'Io tn»i iii* 6«»xfl .nii to ix»n ftn-? w^X *« atl^ti
VXftAo/ftXH •«»nj»i'4 Ijiu* fM*io»«i 'to vtftir'.-gK&t. 99tA} tuit 5ne XXiH
box "^©'I't^O •xoitaieX'a ainaT®!** <,iSflff?wTfi.t»rio*#JPi x'l**^ ,YX.e£Wfl
o8.i-. -^ IXe ^«m' ,»#a«iRl>;Xo 9Xi* oxs ,W««i5 ifjH»*«X^ ja^oXl «iX9enM0
ft£iiiB ftrfi :ii>w ,atTo'*»©oW d*«fi>»lXg ^tXB^i ^* hasiatsd bam -i^tnifi: iiltwM
Luclan Fletcher who, after the death of his first wife in Canada
married francee Everett in Virginia, In addition to the documen-
tary eridence already described, they produced eridence at to the
traditions of their own family tending to corroborate the traditlea
•f the Hetoher family in Canada, liary Fletcher Brammer testified
that the signature on the laeGriorlal of the indenture of transfer of
real estate ia the signature of her father, Luoian Fletcher.
Frank Briscoe, husband of Alsa Geffey, whose mother FiaTo«»
nia Coffey, was a daughter of Luclan Fletcher of Virginia by
Franees ISverett, testified that he Icnew Frances Everett Fletcher
for many years, and that when he became a member of the faciily
their friendship became quite intimate. He says that he discusseA
her faunily history with her, and that she told him of the many
escapades of Lucian Fletcher of Virginia; that, in substance, she
told him that she herself was a native of Amherst county, Virginia;
that she married Lucian Fletcher about the close of the Civil war;
that shortly after they were married dissension arose, caused by
reports of the foxier escapades of her husband; that when he was
25 or 30 X-^are of age there was trouble in his home town which
eaused disgension between him and his father and his father's
people; that they gave him some ivioney and a couple of slaves •> a
the
man and a worrjan; that the name of the man was Arch and that/name of
the woman was Mary Elizabeth Woodforl; that the three "drifted
ever* to Fayette county, West Virginia, stayed there for awhile
and then left; that they "drifted* north toward the Canadian line;
that Lucian told her that in order to get the slave weman over to
the Ceunadian side, it was necessary for him to marry her. The
witness also said that in May, 19 28, a daughter of Frances
Fletcher and Lucian Fletcher, Ibrs. Flavenia Ceffey, sjuae to live ia
his home and was there for about a year; that he talked with this
daughter of Lucian Fletcher about her fatxier's escapades; that she
f
-lOi-awoof^ 9fi: V - *9i9v& aoorusi'i bftii-XA*
^ii«<K 9i:r;t 'to add hlr
£ii bfil'iiifS ^i^ittsyii a»or«iT^
' Idttba^lt'i ti9tii
A • e«TeXe lo eXquoo
to ^aiei\jBii-i f;ii xiotA «f
S). - .-i. ■
990 a.. .
&i.At ■" '•"' '"-■■'
.rtiff avfis x*iii *«*^* ;»Xecbf
;cuB)inow ; 'MM
, i ;.) «>i;t»x«t 0* "5»»«
n:il ;*tsX WDtii btUi
• ioi naloiid taAt
,iibtB nnibenMO 9&t
■ r''\ ru'icujJ. fcruj a»rio*aX*
fv.' fit-.- jiifiori alii
said, "Miy father vaa In a good duuiy serap«a," Tai» witness
(Prank jBrlsoo«} also indentll'led an JSpiseopal prayer lorok as
being a part of the family records of the Virginia Fletoneri
and also a letter written by Lucian i^'letcher to his daug^iter
Jlavonia* The prayer book, which is in the possession of the
wife ef the witness, is claimant's exhibit 1S«C« The letter,
dated at Lynohburg, October 8, 1393, is exnlbit 36, recelred
in erlder^ce for the purpose of showing that liUolan i^letcher ac-
cepted the children boim to Frances Sverett i'letcJrier prior to
their marriage as his own children. The witness also testified
that the general tradition oi' the fsuaily was that claliiianta,
Mary Pletcher Braouaer, i!'iaYonia i''letcner Oof fey, and Cornelia
ilora S'letcher Grow, were recog;nized as the children of Luoian
Fletcher,
One of the traditions about Luclan Fletcher was that in
an altercation orer a colored woiaan he inflicted wounds upon
another man, from which the man after vard died, and tnat this wss
one of the reasons why Lucian and the slaTS woman made the journey
to Canada^ crossing somewhere about Detroit, "across the Detroit
riTer,"
Mary JT, Bramiuer testified that she was the dau«^,hter of
Lucian Fletcrier and Prsmces Everett Ji'letcher; that her father and
Bother, lived together for about 22 years; that they lived on a
fana owned by Sydr^ey iJ'letcher, a brother of Lucian; that there
vere many disputes between her father and xuother about "this West
Virginia tnlng**; that her father's folks sent him out to West
Virginia with the slaves to get rid of hia; that he had ao many
troubles and so many fights tnat he took one of the slaves and
vent off to Canada; that she heard ner father and mother frequently
quarreling "all the tiae about going to Canada, axid all about tko
s
.'•1 T: uisll.
ittioii- rr.^j.xo 1 .. _,oc»^)"i ©IS)'.' ,woiC a©rt&;t©r«i. *Tor4
■ . ' -l-x
'to 1 w.: u»i! eff* a«"- hailxi-Bft* aOiaeis'Xc:: «<j. x-uji.
M no bdvlX x»*** ^^^^ ;»i«ftTC i^S Juocfi t-^aoi 6s /iX .initio*
#»9W ilri^^* ly«(ia a»£iiJon. i>i\^ -latiixi't a«rl asowisd a»d^uq«il> Tiosoi siew
^MN oc bmi 9d iJtttM ; -d ^^ 8- ' iyt^T
10
fights and laurdert, and I donH know wixat all." To tJti% rtqueat ,
"Tell what you heard. Why tiiey sad.d he went away," ahe replied:
"There v/as a terrible murder and his people wanted to get
rid of hiiii, and they bought this place out In the wilds of Wtat
Virginia and sent hija out there vith. two slaves, and he stayed
there awhile. I don't know how long. Anyway, the man died. He
was killed. I don't know what happened to him and they were going
to kill hiiji, I guesa, and he took this woman and left with her-*
X heard him tell it r.\any tiiues, when he got to the "border they
Wouldn't let hia across and they had a cereraony before he could
erose the border. These slaves they ^^ave him. were Arch and the
woman was named — 1 cannot reiiieHiber 50 years ago what happened."
This witness Uso said that her father taught her to write; that
there was no sohool near; that she saw his handwriting and his
signature many times and was acquainted with the signature and
would know it anywhere. She identified the signature on the letter
from Lucian fletcher to flavonia (Exhibit 36) and the signature on
the bottom of the second page of Exhibit 9 ae those of her father,
Lucian Fletcher*
£xhibit 7, a death oertific&te, shows that francos 5,
llotoher died January 1, 1932; that she was white and the widow of
Lucian if'letcher; that fshe was born £iOYember 22, 1344.
One of the daugnters, Lucy, was married first to a man naMil
Hill, and aTterward on April 25, 1901, to Stonewall Scott. The
license to marry issued by the clerk of the Circuit court of Hock
Ridge county, Virginia, shows that Lucy was then 29 years of ago,
which would indicate that ahe was bom in 1872, eigiit years before
the marriage of her father and mother. The evidence, however,
shows that Lucian fletcher, after the marriage reeognizod all thoso
children of i'ranoes li^verett as his own.
Wo hold the evid^ice above recited (there being none to tho
contrary) makes out a prima facie case for these claimants.
The objectors, however, contend that Mary i^rarices Bra;iner,
I^ank Briscoo (husband of a daughter of Flavonia Coffey) and iaro.
John J. Williams were interested witnossoa within tho definition
of section S, chapter 51 (111. State hax Stats. 1935, p. 1615) and
« ;^c»jLip*rt ^iiJ- •! ** «II^ ijisim weiiat t'nofe Z l>a« ^9t9bitm baa sisi^lt
Isjj 05 i;>?«cfra6Tv ■xai>iijn 9ldJtii9i « saw ©led^*
•> .1 ^ v^«■••^r"^•A . . -yen-: i'.i;tS I .«,r|i[w# STa£l&
■Ji HAW
.. . , ri4 0^
j •. u ;s;ri""" -- id^usi ^adJra'i i«ii ^aii^ 6i«3 osUk maaailtt aJ/flP
/ttttaxT 8 iff •vrsti <»A» issii ;t«sn X&o4»« cm asv viaii^
o ^^tucT^fliiia arid- iiiiB (dS *i«rirf»a;) «iaoT«X* oi tortei«X^ oaiouJ: aioTtl
lo woIjIw aii* &as •#i;riw jwbw diia ;|r«it* ;a£Si ,i ^s*ik!iTelt bulb i^im^f&iti.
.>MSX ,as Tdrfmaroa atod bjbw »ife j*:xU jtsrfo^tXU ss&i'jud
«iiT .ij^aU XXflW»ao;tfci 0* ^li-^^l ,aa Xl'm<^ ao fiXaw^i^it'J^ bim «XXifl
«*8^ ltd a'£ft»x ^ a»di^ ««w ^ocrJ. #«;ir evo/ia ,«i^i:^tiV ^x^twoo •&&!&
«lot«»cr sifi^Y *riai» ,ST8X al iwjcf aarw siSs ttuLi ^iBoibal bLuav aaiifm
^iQV^-'cii ,*0ii»Axv9 aril .-jaAJ-oa feae t»ii*A'i %9Ji 'ttt a^Xixm •«[#
•aaxi:t XXb fca^la^oa^i 9'a^i'viaia arid t9J"1«5 «"«orfo*»X'». tmioui i»iii avaxia
*a«o alii a« ^d^aTdvlii aaonai'i lo asTX^Xxda
osU of anon ^BX9cf a-xaxi;^ ) ftai^id'^'x ftvo>ia aonaX'iTa «4^ bXo4 oW
.a*fi««ij8Xa aoart* -xot at«» S^B^ »mifVSi & *ao aaiU« (xx««*«oo
,iaiajVsiiHdL «aort««t t"*®^ J^an* fta«#a<»a ,-xp)vawofi .arxoiaatc^o ^^^'^
.eaA Sitft (^a'naO alaavmn to i«*i\»u«A « lo fsJuarfaiiri) aooai«<i atiwit
loiitlnitab aitt ©JkiiJlir aaaaecilw fra^haftOd^iil aiaw a»aalXXi^ J- f^tol
^ /sfiwr arnr •'fr.^^ ood A'»..4j>4 rrt\ n* tm^am^tiA B nal^fiaa )a
11
that their teatiiuony was properly disregarded by the trial court.
They cite Laurence v. Laurence. 164 111. 367; In re Petition of
Saunders. 245 111. ^p. 423. lieither Mrs. Wiliiame nor i-r. . I-rie-
cee '^ould derive any ismiediate financial advantage from finainge
in favor of claimants. They were, therefore, not disqualified under
the statute.
The persons who raise this otjection should have siiown that
they had some standing to do so. They have not offered any OTidenett
tending to show the qualifications required in this respect. Claim-
ants say (plausibly) that section 3 of chapter 51 (111. State Bar
Stats. 1935) makes section 2 inapplicable to proceedings of this
nature, *Iowever that may he, by the weight of authority in this
country, statutes such as this are not applicable to proceedings ef
this character (28 R. C. L, 510), although a minority of the courts
hold a eontrary view. See section 99 of the saine autiiority. (23
H«C,L, 512.) It has been the general practi-je in the Probate
courts ol* this State to receive tlxe teatiiiiony of interested persons
to establish the table of heirship of a deceased person. Indeed,
sucla testiiuoliy is nearly always necessary in order to determine the
facts.
The cases relied on by the objectors are distingui sizable.
In the Laurence case a colored woman claimed to be the v/ife of tlxe
deceased, a wnite sxan, and there was an issue between her and the
heirs aa to their rigjhts in the property of the estate. In the
Saunders case Dr. Saunders left a last will and testament in which
his wife, Marian B. , was named as executrix, and the will wus ad-
Bltted to probate. There was a proof of heirship, in whicli it was
found that the deceased left him surviving l^arian £. , his widow, a
son and several granclehildrea. kore theui two years thereafter a
woman "who styled herself as Grace k. Saundere" filed a petition,
averring a marriage witli the deceased alJ:iiost 26 years before and
Ml
-exi' ■• ••^'^"- »• . .-'-- .QCfA. .Ill Q^ *£3afejayi*
al.:- '" - ,._;,.,j,(;>u-o- •j.-i u.i :3j.ujii£>ij£q(8««i a. «oi..J'a«MS EO^iiiaa {5€<3X ^ai&tS
acfiifoo 3j:3- 'iQ ,,j iiociiiH B ilai/orii Jjc-: , (0I<5 . -- ,H BS,) ■$»;JoAr*Biip sJ;4it
68) .^is.'toiiiki'ti Qiutse 9ri.» 'lo >?Q noiJ-si; ^ .?/5»J:v v^tB*:!*^*)* a LXoff
£>.>jKdo:i:<I 9iW ni doi^©«iq Ij3isa»y sdv nf^eoi a^^a " ' .2X8 *<1*>?#H
Ifoldw rti JrK»i»ujJ89>? Jjiifc XXivr im:£ » *'ieX »«»Jbi3iJije .^ •Oiso ftojia^Q
J, , '/^; : ,, .aeliflii aniviv-Sffa i^iir' iJ'teX itasMOObb »di iodi biwo'i
« tt^rUiTivtij a"xs«x »"* ^^^* *'=^o*^ .OftifeXi/ialwitaia X«aa¥S»8 A«* noa
,a#l*i*6<T is Jt»«Xli >'«'£6X)aKfcc . Uottorf AoX^** «i-iw" fUBiaow
xa
praying that th« fom«r order ol' helrehip ehould Ise Taoated. Tb.t
Probate court dieraissed the petition after a hearing, 3ki9 ajppealeA
to the Circuit court where upon ohjection she was held to be an
incompetent witneae , and the Apellate court ol' the <:iecond dis-
trict upheld that contention. That proceeding was in its nature
essentially different from tnia, in tuat the court was called up«n
to decide An issue of law and fact between the contending parties.
In other words, that proceeding had the qualities of a law suit.
This proceeding, so far as this record discloses, is only an in-
quisition. We think the court did not err in adroitting tht testi-
mony and did err if, in deciding the case, the oTidence of liirs,
Brammer and other witnesses was excluded upon the theory that they
were incompetent witnesses. Indeed, no objection was made to
Kuoh of Mrs. Brammer *■ testimony. As a matter of fact, the ob-
jectors crosB-ezafflined her at gr«at loagth. Moreover, these seek-
ing to interpose objections were witheut standing to do so.
Brownlio T. Brownlio. 351 111. 72, Even excluding the testimony
of Mrs. Brammer, we think the claimants made out a prima fa^ie oaoe.
It is next contended that the alleged declarations of Ludan
Hoteher ef Virginia were inadtiiissiblo in the absence of other
proof of his relationship to Mary Turner, deceased. Jar chow y.
Qrosse. 257 111. 36, 100 h, S. 290, Anno, cases 1914 A 320, is
relied on. The autuerities cited sustain the rule contended for,
with the modification that very slight evidence of suc^ relationsh^
is necessary. There are also authorities holding to the contrary.
Wigiflore on Bvidence, vol. 2, sec. 1491; Re Estate of iiartman.
167 Oal. 206; Re Clark. 13 Cal, App, 736; Sitler v. Gehr. 105 i^a.
592. Here tiiere are circumstances in evidence denors the declara-
tions of Lucian Pletoher siaowing prima facie his relationship to
the family of karia Turner. There is the identity of the name of
SI
,B9iJ"t6q gajLt)..'©: . o^'i flite ' n4 «fci»»il> o#
.^ioa V ' . ..'tow i«''
-do 9Ai fio&"^ ttjaiu s aA ,'^n:offii*a»* a'tSx/uaxttli .B^^/I 'to 'loim
^floi'ii^ea* 9 AS ^ttJLbuL9X» nova /I . .-■ I U'€ .t^ila^oiH. ,r allawortg
.saA0 axQf.l ggii^ « Jmo aijem «*£ueial:Ai« »ii* Jlairi* »w .ismniana .:
fwleiftl 'to 8rtoi•i■fi•Xi.:x•J9^ £»«^*i ^ tt ei d^I
a«xi;ro 'to ©onsBcfis sri^ ui »IdfJ:8eliJ6<B«i s'l^w aifcls-xiV 'io TsrfoiJftX'S
,g wgrfp'uil .ib»8«e89b .ismwr v:n«4i o^ Qirianol^al^i aiil to 'iooa^
,io't b8£>u0^iio^ aXi.- Itaitcfuft sxiT .no JbelXai
q^fl8flox;}sI»t liowa 'to oon«6iv« ;^fvAl£w x'lav vtari* aoi^jsai'tlfeaca ttW rttlw
naa^Xfit 'to s.i..^J-j ■ aH ;I5i-j. ,o •■ . - ,»»n«ftiTK no •ioksIV
.«i COX .-Uifti^ .V -tQiii^ rof**; . . . . itxi ip a>a ;sos ,x#o rax
-^'XAiftsb »iii f 1 Qtiat, »on»t ?«*o.xe*amM»Tci • sus o'l^? J- '^'X»H .ROT
e^ qliianot^tr C*t ■eiii fiJtOjBl £ ' M!9iioiftIl rwiouJ to naolS
Im .8ffen on: irnhl 9Ai tt ^irndt .leHii/T to ^Ilaal erf*
13
Luoian Ifletohcr with th« name el' the husband of Mary Sllcabeth
Weodfork, the mother ef Maria Turner, as ehoim by the aeeeeenient
rolle and by memorlale of transfers of real estate. The relation-
ship was al8o shown by the testimony of the vitnesBes, Albert
Venerable and Mamie Warner, There was also the faot that the dset
ef May 2^ 1859, made in Canada indicates that Mary Elisabeth
Fletcher wae formerly of Lynohburg, Virginia, and the handwriting
of Lucian ^.etcher on Exhibit 9, a deed dated July 26, 1859, made
in Canada, is identified as the handwriting of Lucian fletcher of
Lynchburg, Virginia. We tlaink this eyidence more than sufficient
to comply with the rale as stated in Jarchov y. Grosee. 267 111* 36.
The objectors also contend that the adx^iission of eTilenoe,
as to declarations by one spouse offered to prove the fact ef
narriage, in order to be ad^idssible , must be made during the con-
tinuance of cohabitation of the parties; that otherwise suoh dec-
larations are not conter-pcraneous with the main faetto be prored
and are not a part ol the res feestae and therefore inadiuissible.
13 R.C.L. 424; Drawdy v. Heaters. 130 Ga. 161, 60 S. ^, 451, 15
L, R. A. (B,3,) 190, and aordon t. Crordon. 283 111. 182, are cited.
On these authorities it is urged that the testimony of MaEiie Warner
as to admissions of the mother of Sarah Thornton, namely, Mary
Elisabeth iletoher, concernine^ her marriage at the Canadian border
and the teatii^iony of Mrs, Brairimer and frank Briscoe as to statements
Bade by Lucian Fletcher and Frances Everett Fletcher were inada^issible
because not ma^e during the period of cohabitation. If this evidencs
had been offered on the theory that it v/as original eyidence froa
whioh a presumption of marriage would arise, there would be merit
In the contention. This evidence was not offered or received upon
that theory. It was received as evidence ad^-issible under the well
recognised exception to the hearsay rule concerning proof of pedi-
gree. The ground ef its admission is necessity. This distinction
ftX
•aoi-t«X*% sii'i' ,^jei«') X***! 'to »is"i«ix«-i:3 "to elAiiio:fift/K '^cf l>a« aXXov
S»9tk 9ii4 t££^ ^Qjst 9tii oaiM aA« »i[»j(~ .t:da-xjp.W -^isseM baa »Xtf£ien»?
;^xi-i:t«l>aE:<i «ii{i^ bits, ^»lnlj^%iV t^%&4fk>ci%^ lo \tX%0d£Xo'l 8«w isxidldX^
«**ia ,9a8i :ut, b&t&h A©sl> i* ,9 -JicTljrlxa no xtits^ori ««Jtoi/J[ to
lo '%»£i&i»r'i i-y,i&u>i lo ^jux^x-xv^l^asii oii^ es SaisiiXXitabi., ei: ,«fe£a«0 ill
.M •lii VeS .stage tip ^y wpap-tja"^ 0J; |>«**i.t*ji ex ^Xwt: s>jf{^ xi^-iw x,Xq.ffio* 9t
,ftOa»blv .;i8si«&fi a*l^ J' Ail* 6n«dtiioo otls «ae#9®t«fo s^i'
-Q»b siouB daiyrtB^iio ^axij ,-adX;fXnq »x£;^ 'ta Qol^-s^Xdaxx .rtBunlt
.•Idie8iii4l)«iu 9-1 Otis 'ivi^ ha^ ^ia&u. ^? ft4;r 'te ;J*9<i « #0a txs boa
c:I ,x.U . ,^ 00 ,XdX ^D OCX ,ft25Sto:4i~iI^.. ; ■ . . . I
.of^ia 3i# ,.^!oX .XXI o&g . i:ti.Jb-x^oa y^, fifi<»,-^^f^ ^a^' «0^X (,^*» . , . . ^
.,,. V .iidaii 'i© ^iio^ix^s®* axi* **ixtl fesis?* asiiiiOJiiiue sa^iit aO
X^mML ,v:Xaias»xi ,aa^axoin? d&t^ 't« rs^xij-eiw sdUT 'io auo Iub lathe j^_,;Mm
■X. ■.:. n«liM»fte£>- tJCtlJi ^jj 9#ei'xiu»» ««»ii jjoi^:i»«iaoo ,i©d'oi'»X'S; xCd-acfjisiXJI
xait«ia>*«U &1&'' idiioimi'i ii9'%&v'& •^^iiA'x'i ba& -xaiio^sXU xiflipvJ Y«f a^«
9uaabiir9 tisii '11 .rioi*4<^itf^xioo 'to IspXtceq ©«it s^i'SWiJ aJUem *on «8WJB©orf
ASi'l aaaaJbiva X»«ij|X'XO a** ii i«xl^ ^oaxil ©xiJ oo Aeia'Ho aascf fwjrf
^jc-cau a6[ JbXi}«>w niftsii ,9a.ii& l»Xx;ow a^i^siictaA lo aoXiq/w^tq £ iloXxfa
na^v J^aVX»c sxa^to ien g«ir aaaab , aoI^aad^iiOQ ax^^flj
X«v axi;^ xabau aXdJtaeX^ibi« Boastblr* ba bQri909% «isv !iii(#
-IfcaflF 'la 'iooxq ^ikflXtJiawiioo laixj'x \««:tjaaii *si^ ' i® Jb»sixx;goaan
Uv>^.;u -jsxc- uliSX *i*ioaao»a eX a«,laBX«t6*i «#i 't© fixiwoij adS ,»art8
14
It pointed out in IS R.C.L* 424. The rule in Illinois ie et&teA
in SttKrue ▼. Grill ey. 329 111. 458:;
"Pedigree may te proved by ueareay eridejiioe, but it eeema
to be well settled that a declaration coucerxiing kirisnip repro**
dueed as hearsay* to be adxaisaible, must haye been mode by a
person, since deceased, beJ'ore a controversy arose, unol wiio was
related by blood or afl'inity to some branch ol' the Tamily the
pedigree respecting whicii is in question. ( Jar cap v v. wrosse.
257 111. 36; Aalhola v. .People. 211 ij. Y. 406, L.H. a. 1915-D.
215. )«
Other oases in whicii the rule has been applied are Welch v. Worsley^
330 111. 172; iSstate oJ healea v. ^ealea. 254 111. ijipp. 334.
The evidence in this record is very far iroiu being all that
we would desire, but it is the best obtainable. The oarties ob-
jecting olTer no evidenee at all. This evidence notwithstanding
its apparent ineonsisteneiee, upon the wnole tends to shew the
marriage ol' Lucian if'letcher to Mary Elisabeth Woodi'ork, a colored
slave woman, and that Laeian Ifletoher of Virginia, husband oi
S'ranoes Everett, is the same i.ucian JTleteher who Married Mary
Slizabeth WoodforK and lived with her and tiieir children in
Windsor, Canada, and was the fatner oi' Majria fletoher Turner. It
follows that these elaimants are the only heirs at law and next of
kin of iiaria Turner,
It is, hoverer, contended with great earnestness that sino*
Mary Elisabeth Woodfork was a sl^ive and colored and x^ucian ii'letcher
of Virginia, her i^taster, ^a,s white, there could be no lawful mar*
riage between them; that sueh marriage was absolutely void as con-
trary to public policy in Virginia, Michigan and Illir.ois, as well
as in some other iiitates. The statutes of these states, as they
existed during the period in question, shew that such was the laar
at the time of this marriage. Code of Virg-nia, 1349, cimp. 196,
p. 74C, sees. 3, 9; Compiled Laws of iidciiigan, 1357, vol. 2, p.
107, and par, 3209, p. 9 50; Illinois statutes of 1353, cioates
Treat & Blackwell Marriages, p. 579, sec. 2, pp. 320-823, sec. 17,
£,1
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ni .laiJaXljrfi} iJI»^ haa 'xttd iliiw l^eviX fefis Stcotboot At9<iMsllS.
il ti^tvxisT: T»flo&«JL^ siXxaU 'to -xauc^jBl aili wsw fe£t« ,«I , r.af'niW
Id ihr»ti £)«« vex ita exlBii xlixe t>nj aajg 9-Jen»mieLf> Q»»iii' iiuLi kwo'XXO''^
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•Tea li/tfftiL on dtf biMott •id^U .s^iifw aAv i, -xo jraj5«)i "X^id ^simsTitV ^o
i0ii «ii i>Xov ^X«d'uXo«ilA nww «3^Xix«ia i^ji« *«iif ;ia&jdiir fiK»ow*«cr s;.4J&ii
ii^'v u£ .Bxc-^XXI bua, flttmiiiaiid ,£txait|i:lV oi ^£9iX0<l uiXcTijq o;f Y^cjei;^
VtoX 9iii QAw a£)ju«t j-HiMi iTu«ia ^i\i>liG,&up ai i^oiiocr d^ri^T 8£ii*Zij& b&inlx%
^hQl .q^ai^ ,yHiX .ajtmaaXV 't» »i»oO ,»sjaiii'i«ai Bli/J- 'to 9mii- itdt t»
.(i ,ii ..tuv ,Vf!La: ,a.i.Ui%oXii 'to •weJ l»eXl<?tttOU ; , .or^.ts ,Ch^1'-Vif
«©3'*J>o ^i'&m 'to a»#irirt;>ii iixertrXXl ;Oec .«} , tfOSE .tJB<i bflw ,'POX^
16
p. 824, 8«c, 23» Constitution of 1843, eeo. 14, p. 74.
Without undertaking to diaeute in detail nerely technical
points, it will be sufficient to aay tnat by the fifteenth Anend-
ment to the Conetitution of the United States slavery was abolished
before the deatu of Luciian J'letcher and before the death ef Mary
Elizabeth Fletcher, koreover, by the statute of Illinois Barria^ss
of thie kind hare since been validated, and the issue thereof made
legitimate. See Illinois State Bar State., 1935, ohap* 89, par.
19. We have already stated that the fair inference from the evi-
dence is that the marriage in question took plaoe in the Dominion
of Canada and not in the United otates. If objectors desired te
show that the marriage was in fact invalid in the Jurisdiction whers
it took place, the burden of proof was upon them to produce such
evidence, as well as to produce evidence wnich would shew their own
standing to make objection, JIfiaxy Elisabeth Voodfork was not a
slave within the Jurisdiction of Canada, aixd the iuipediment was re-
moved when Bhe crossed the border and canae into the Jurisdiction
where slavery was illegal. It Uas also been held by the courts
construing the remedial Illinois statute above cited that unless
a slave marriage has been disal'firmed, it ie as blading as if the
parties had been free. Middleton v. iiiddleton. 2Sl 111, 623;
frescett v. Ayers. 276 111. 242, neither of these parties ever
disaffirmed the xaarriaii,e so far as the evidence discloses. It is
true that shortly after his rexease from iiaprisoniuent at the end
of the Civil war, Lucian ifleteher began illicit relations with
if'rances JSverett, but x;jaeBe relations were net matrimonial until
some yeara after the death of iUisabeth if'letcher at Windsor, iiot
until isao was he married ^o JTrances ifiverett in Virginia,
We have, at tue cost ef considerable labor, considered the
evidence and legal questions raised by these objeetors on this
voluminous record. Vf« mi^t have declined to do so, because, as
- f
•b«ia '£o9toii^ 9UQP.i 9ai bOB ,b»^BblLM}r em^d 9onia ttrmd StttiiL eldt %#
•^ bBtiafib sioio&ldQ 'li ,^9i»tii b^ilstU Bdi al imi bss& B%mmi9 tm
zioits iiOiskottj oi id^sii nocru a«w 'taotq 'to £i&bikiii njii , »&eXq ^ooJ tl
aolSoibsixsit ^^^ oii\l «««»o ba^ %®bto^ 9di h*uao%i> 9jus a»dv b^roa
Bivuoo '^n-j v,(i feX«f{ flssrf o»l*t a«i. . .^'^X.ii. a*w \{;^«»rAjl« •i»Jiw
9^9laB t^id^t bB&io dvocf« a^Tfi^r^^e Ai.«£dtIJtl XelJ^du!®! et^^t ^ali^/ttiftoit
•ii;t ti 8« 30xfcald si^ ,&»flwJbt't««iJb ii«9u «£» e^iaVAA ©TfiXa «
;SSd »IX1 IffS , aoi^5I&g..'^i!L,*J! .»da"t a»»tf bBti n9lirMq
t^r** 99i^^ieq an .BiH^i^H ,«*S .ill 6fS .b^syA .y ^^Tooa^X^X
. .>>oXo9ib noadJbiy* 9sii ajB ta't o« 8sh>^'si^«^ ^^^ b^mirilMB ib
Jt>:iH »iit J'* #»»wRo8Xiqr-x flwn'i »a«»i.»'S aiit i«^tgK xli'xiitim iadS 9itit
Xltrjj X»xaon\Xi^»iu ion »*!»» enoX^^^ixri •aaiia ^wtf ,**»ix«»va BaofUfxV
. ];o«ibul'.v ;r4i 'X9f£o^«X% ai9(Ssitt£<i 'to ci^^Mfe orlit- •xetf'Jus s-umx »mom
.elvu.'^itV &£. itBttivia. sAoibbiU at t^kivua •Ji saw oeex tiism
9dt j)«nc«Maooo «'X«(fAX •X^0tt«t}i8Hoe lo #««o ex^ lit ;,ew>£i e^>
• iri;r no jn»<ro$^t;>o 9»9iU xd M9iJ6i «0ioila#j;ip iJBSittX bae •ontibir*
^
16
a matter of fact, thare is nothing in th« record ten dints to show
that the objectors hare any interest in the proceeding that would
give them any riti;ht to he heard. In tJ-ie Probate wrid Circuit
courts they should have teen required to mnke prelinlnary showing
of such interest. Matters of this importance shoull not be tried
pieceiiieal, as euoh laetiiod makes lauch unnecessary work for the
courts and tends to prevent the attainment of that finality in
litigation which is required by the publie interest.
The judi^nent of the Circuit court is reversed and the pro-
ceedings reianded to that court, with directions to enter an order
finding claimants to be the heirs at law and next of kin of Itaria
Turner and to duly certify sueix order to the Probate court of
Cook county.
ksVjshsed mn rsmahdbd with DIRBCTIOJJS.
McSurely, P. J., and O'Connor, J,, concur.
61
38730
HBHCULIS KOVELTY CO. , IKC. ,
a Corporation,
Appellee,
V8,
URf
OP COOK COUNTY .
LIGHTfiBR PUBLISHING COHPORAT ION ,
a Corporation, and CARROLL E, ) .
vHTxmoK. ^^^^^^^^_ j 2B 5 I. A. 5 90^
MR. JU3TICS MAICHBTT DELIVERED 'MB OPIiilON OF THE COUHT.
Oetoter 20, 19 32, plaint il'f corporation sued defendant
corporation, publiarier oi' a magazine called the "Automatio A^e,"
and Vatteriok, its mwiafcer, alleging the publication by them of
an alleged libel, as I'ollows:
"Sditor's fiote: AUTOioATIC AGS has refuBed to accept the
adyertising of Hercules Novelty Coiopany for some time, although
we see it running in chialer iaagazines. They have not shown the
least good faith and should not be allowed to continue to gyp the
Industry, "
Damages were dananded to the amount of #50,000. Defendants file4
pleas, to which plaintiff deiiiUired, The deiuurrer was sustained.
Defendants then filed a plea ol' not guilty, wita special pleas,
setting up that the publication was privileged and justified.
Plaintiff Joined issue on the plea of not y,uilty and moved to
strike other of the pleas and filed a demurrer to plea ho, 4. Tim
notion to strike was not pressed, and plaintiff thereafter filed
a demurrer to all the special pleas.
When the cause came on for trial this demirrer of plain*
tiff was undisposed of, and the court, vdthout making any record
disposing of the demurrer, caused a jur^ to be iiiipanelied. Counsel
made opening stateiuents to t ^e jury, defendants' counsel, among
other things, stating that he would prove the alleged libel to be
true. After consultation in chambers, as a statement ol the trial
Judge indicates, the jury was withdrawn and the oause submitted to
the oourt. Defendant manager was not present in oourt. l^o wit-
nesses aopeared in defendants* behalf. An affidavit al'terward
THUdC HOlf.B'iW «0H
X 0£T8e
..0 41 ,.00 yraavoML eiJUOHKH
^ /\ T ^ 9 <? ^ ,ii;-Iii<u'ii:iV
J. BoiiiDtsR 'to anleidhisr!?*
i.,„ _ . h'-'>- K.ffp'r boos :)'8«9X
,a«y>X(i Xfiioix ,%ili.u!ki ^on. 'to aaXci a iflX't a^Ai s^eoiJbni.ileG
9i fcsvoa Jbfte x^Jti*. ? jseXq sxU no shjbbI i>«nlot Tllinxiiif
Mi . .^}4 4itdxq uJ is-x-xuittoe) a bo Lit bsxe. aasXq 9tii 'to i&dio sitiiB
b9li't ioi'ls»'iQj\i Vtlial^Lii baa ,Jb»ea9iq SQa tayt tslltic o;^ aoiiom.
•««»,Xi| iiBiiM»Qe ddJ lis oi ioiTmi9b M
-oJLaXq lo lit^iittKi) eiiii lal'X^ to'X uo «(ua9 eauac siiu noxlW
bxooiii X'^ '^alima iu^niiv ^i-iuoo o. , ttt b9so(i»lbau «aw 't'tli
linwoJ .bsiXooaqwi , i»-X'x«Miafi •ii;f 'to ^nxeoqaib
MF AJ^ XotflX l>t>j|:>lXc 9£ii oroxq hlu&w exi ;f«iiJ ^nl^^^s ,asa^£i^ ^caii^o
X;3iii oiU 'l« ^JiUiH»tfi^a a aa , ttacfxaaiis^ ui aoii^Ai^Xi;aiiou *c»^'tA .arxY^
o^ buSilJBdywi •ajtiaa a^U bna nwttibiU'iv eaw xxul axi^idoitaoJtkal asi^vl
"liw 0/1 ,tiuaQ ai iaBuHtu ion ««w te^iiaaafai j-aai)aa'l»C[ .It&oo eii^
subrLiltted Is to the effect that they did not know tho cauB* wm» %^
he tried at that time, Tiioir attorney, however, was preaont. Tho
evidence for plaintiff was submitted, -'ind the court at tho cloot
of plaintiff's evidence made a finding for plaintiff, aosesooA
dairaxtiQB in the suk of -^^1500 and entered Judgjaent on the fii.ding.
After a i^otiou to set aside the judgment and for leave to defend,
supported "by affidavit, was doi.iod, defendants gave notioo of this
appeal*
Tliey contend, in the first place, that it was error for the
court to try the cause without first disposing of tho doiuurrer of
plaintiff to defendants' pleas, and it joiust be conceded that such
practice was unusuaJ. and irregular* It was so held in Hopkins v.
Woodwax elf ''^ 111. 62, althougn the court there was ol the opinion
that the error wa& not reversible, because the plea vfae in fact
bad. There was a dissenting opinion upon the tneory that tho ir-
regularity constituted reversible error. iPlaintiff here does not
contend that the pleas were in fact bad, but argues that tho in-
ference from facts recited in the record is that the demurrer was
sustained by the court prior to the trial, Plaintiff eaya that if
it was not, defendants waived tlieir rigirit to have judgment on the
decmrrer by going to trial without objection, citing Devine v,.
Chicago City Ry. Co.. 237 111, 278, Xhis would be a valid argument
if judgment had been against plaintiff and, it appealing, would so
argue; but tiiis demurrer was taat of plaintiff, challenging the
merits of the pleas of defendants, Defendants by going to trial
did not waive their rights under good and sufficient pleas, Whether
tlie cause was tried erroneously without determination of the qualify
of the pleas, as defendants contend, or the pleas held bad, as plain-
tiff argues, defendants have a right on the record, as we understand
it, to contend in this court that the pleas were meritorious and
that it was error either to sustain a dexuurrer to them or to
f &A« BBtuao «d;^ wo£q£ i^a bib %»£ii 4»at ^tf»Vl9 9rl ^ Iradtn
teeaeaa^^ , t1ti#fllaXq -sol anJtf: '
axiicr ;. :i«l>rt«'tip , vefcx'i'tij ^tf fe«»5"xoq^ixB
io tt9TT:i;.a!»i} ©iiJ to awiBoqaiJb ivri't itaai&tw 99imti 9siS x^t of txti09
^beoaoii ««F itams it feiu; ,s^9Xq ^ ataMhrts'lab ot 't'tXiaia£%
rtolaigo ui* Stu , ..5t<wl>oyW
{To ,dXcii«tav*-: r >xl^
--zi eii.t aosiid' dii^ aoqu uoialqo B»i4'a9aBiJ^ a eaw &<t9iC! .bad
3AW i&ftuRXBb QtUt tjtiii 9i bt909i ftdii ak J&e^id^^ aiojat otoi;! soaatBt
9£Li ao iiMBi^hul i»vj»ii o^ d^iiS'^'^ i:x3j4^ Jbeirxjaw aji^uAftns'tsJb ,^oa ajiv d'i
ifaeauusiA fciX»V <! •<! i)Xuow aliil' .SVS ,1X1 V58 ^ -o^ ^V'T- v^-tO oaaoiilO
•a bXx/ov ,auXXadqq£ ^i «kiu9 TtJtiiitMXci #«ai«ae aosuT ImbxI #n9iii^ti/t '^-^
•ul ^al^sat llMXia /fltirtitale to iTiTfiit (scv tsituoMb utM Sud ;«x;3X0
Smkii ot >»al03 x6 »iiu^bn9'U(L ,aftiAbis»'fb t* ««aXq diii to R;tl«aai
i»/i*dn*' ,49«©X4 i^ttftiait'tiig b^w boo^i X»ba« ai-figXi ilftri* »TXi»« *e« MA
y^tlu-hp axil t© aoi^i^flLifflBta<>al> ;fttdjrfJlw xJ^«»»»» «♦'!:• bail* ««w aaxixo «xl*
oUXir «A ,b«rf blaxi 8«flXq •rii to ,fcuawO«c 8*flofca»t»b ac; ,aA©Xq ari^ to
baeiaiftbou •« sa ,6'xoooi axU uo ^cti^lt » «r£xf a^^usbna'tob ,q»ub'x« t'tl^
btm awolia^rx-xaia ©ai*?.- b«»Xi? axi* iiti\i ttuwt niAS at bautaoo o* , *1
oi la iaa/wr oJ usiTwuiab « rtjt«*aua e^ naiaUl© toifxa •««» *1 *AXf*
•ntirely ignore th«m, Del'endantB argue the pleaa were aerltorious,
auad we do not understand plaintilT contenda to the contrary. If,
as plain ti If contends, thsre was soi ordsr sustaining a demurrer to
the pleae and the pleas were in I'aet good, derendants are not pre-
cluded from arguing that question h«re by reason of oniission on
their part to have an order entered to the effect tnut they electsd
to Btand by the pleas. This is the rule stated in Jooe|yn ▼. Whltf.
201 111. 16, followed and approved In the recent case of Konev v»
Chicago litis & Trust Co. , 354 ill. 144. The case of i>evine v.
Chicago City liy. Go.. 237 ill, 278, ©n whioa plaintiff relies, is
not contrary, as auove explained,
The deiiturrer admitted all facts well pleaded, i'hess plsss
show tnat the alleged libel was printed on a page of the maga^ins
devoted to complaints by defendants' custorsers; that on the same
page appeared letters froju these customers, which, if true, would
have Justified the alleged libelous statement, whioh, as a matter
of fact, was only an edxtor's note attached to these statements.
It was manifestly unfair to admit in evidence a part of the printsi
statement jvithout the context* The whole matter should have bs«a
before the eourtin order tnat it might have been iuforued on the
questions of malice and good faith so far as defendants were con-
cerned. The court could not properly pass on these questions or
justly deteriiiine the amount of damages without such information.
If ws assume the innuendoes stated in the declaration to be true,
the article in question was, as plaintiff contends, libelous per jf.,
but on the question of malice and damages the whole article should
have been considered.
One of the oleas as amended affirmed that plaintiff, as a
matter of fact, did "gyp" the industry, and charged that plaintiff
dealt in coin vending machines of a kind that could readily and
easily be chat^ged into gambling devices prohibited by law, and that
, ilB'^ batii&T9baa ton ob sir htm
-»iq ^ofl , ' 3®» #«wl al »i9w a&3£q f^iii has vnBlq ^ri^
«o ftai 33 Jctio 'to ixoajsrtw v loiJBjJi, . ^.xiu^iH mtn't bsbeXti
^T rftqp/- io saao .ii-«o«*T: srC* a/ fc»voi<?q£ fine fea'f'oXXo'i ,dX ,iil 102
al ,8sl.. .. ,ijtt tt^ , ,,pO .yH. y.tX-j oj^coAriO
»h«fu.GXqjC0 aivc .ijlisiJnoo Ion
• njtJ6«s^;ia 9rfdr 'ro o-,«^ .i < MJil fce^oXXs »d[d- t^ri* waila
•atte aif.l' a ;ar{aaols0O '«^£usliiie'£«B v.d 9;f'ii£:Xq<aoo o^ betov^A
biijov^ ,'?(.t:; , xff'T ^ at ajBtiDt a 116 aaari* moi'i vi-^iiel l)«i«»q[(|» sna^l
idiiBM ,'i , . . , i^ai»*tt#« uuo£»tfIl b»%»lLn ddt b^l'tt&uul 9irm'd
,»Sa»L^ir:.i'': srjir'i oi b»sixyr&tr, 9*on a*T0lxlka ob \£sio aaw .d-os't 1«
a^pd 9vj,;ri bXi.oiia ^lai^jTeai sXoriw ,^xa3noo ail* tuodilw ;rn9Jfi«d'«*a
-ao3 8i»*^ atnjsbns't oa iltiB't 6003^ l>ne o^tlam. 'to «riox;^8»0p
tn srif "ji:-»ii'; '38--, vj ! k) fKijN>u v;XT©q6iq Jon fiXi/ao jnwoo aii'i) *J»9aTC«9
.„, _. . _ . ... >^Mmh lo ta&^em 9ii> 9atir.tfi'i&b x^**^\,
^euii id o.-t .f -ttf • Ui f fvifi:J-5j a*o?iita«flai aiit ^aui&BM aw 'il
«JB. 2SS Bw-'''* .— . -w., J-., .^i-i. iioltaai/p sr,l Blf)iiiA 9AS
•• Tr ,. .o . •>.«!«» 6 bttp «i!'i>r«'* "ta iioi;faai/p 0dJt flo *b*
.h«l»l>la£lOO imodT flVAH
■ ^ f'tfi &»:..;. .*. aseXci af<:* "'■'^ "*■'
••'" 'riJ)«ai JbHioo teJl* f»tfli a 1« aanljtiaja! gnifcnav iiloo «i tXaHA
«»iM am* ,yrMl x^ f* t<fttiot<i «*aJ:T«b a&lX(teaa e^al Jbasxurio a<f X'^-^c^^
lia thinly -veiled language pluif.tiiT in its advertise. »«nts des-
cribed tiie siwple manipulatioii required to that end, ioi aiarsninient
to eui aaieiided plea olleBed "that tiie advert iseiuent mentioned iii
said ajuended plea described two automatic pay-ofl's and that the
jacJt-pot in tiie front cari be disoonneoted and the hidd«i jaok-pot
in the rear would then be in operation and that both jaok-poirs
can be done away witn in a jil'i'y and the said xuacnine can then be
operated with pr without a a pay-oi"l' card," We think the pleas
were in substance meritorious.
We also hold that the damages allowed in this case are so
ezeessive as to compel a reversal, fhe evidence in this respect
is purely apeoulative, There is no proof of the nuuber of sub-
scribers to the paper published by defendants. There is no proof
that plaintiff lost a single oustotaer as a result of the publica-
tion of tnis article. Indeed, the excerpt froci a single page of
the magazine appears to have been admitted in evidexice witioout any
prelimin'iry proof of its publication, Ihere is no evideiice of the
wealth of defendants such as would justify an award of large
punitive dauiages. In the absence of evidence of the financial
worth of a defendant tiie courts have held that a jury has no right
to give any more daiuages than it would if it affirmatively aopearad
that the defendant was without pecuniary resources at all. Beesoa
▼. gpssard. 167 111, App, 561; Mercy v, Talbot. 189 111. App, 1,
Plaintiff is a corporation, incorporated in 19 30 with a
capital stock of $5000. As was developed on cross examination of
its accountant, in 1930 it operated at a net loss of $1104,66; in
1931 it made a net profit of #2534,09; in 1932 a net Ions of
#1314,44; iii the first half of 1933 there was a net loss of
#1622,34, There is no evidence in the record which would justify
* jud^ent for the aiuount rendered in this case, and we think the
^««ia^^Ou .5«i» tikii: o^ m-ii^p^x suiitiili^qXaAa •Iqait* aAi k&dilt9
9fa ii<9d;t ftat) »nij.iiu?ii foiise v Y.'^^^^ « iT^i ri*i* i{;«w« eoefr »J n«o
-(fLH tc T^rfnurn srf:S to 'ieoi^. o« si disii'l' .•vi:;»^Xuoftea xL^tu% •!
-irtfi. tf^pur.iJBi.'s eX^inla « $a«X YXlinimL^ fmtii
^^ ,.^ , i _, .: ' - :)X^> :^jiw .i^aijMi ^aXoiJTWf aixi^ 'io ooiJ'
V .*»olX«itj« eii to 'tooici ^"^^"'•'^■t*'!^
^,,.^^ -„ .-...,-, ,- ..-,, -- ;, i;Xt«>* «A **■«§ alXlAfen®!©* "to tiilM^W
^•ol■»^M._i^>•»■ a<<f.t >,-. noa»J^i;T» "to 90fi»«»<i(* »Jrit «I .««i4*fliJBfc atTltlauqi
,,.^:^ « ...jri^ feX«>il •Vjnii ei^uee^ inii dr«uBfen®t»& « to iftT«w
.i ♦crn*" . ■-^■' "■ - ti_y„i;*.,i._.X_XS3?* t'-*^^ **f*?^ '-^^^ ^**' .I>_^e3ftev .r
■»« »a©X ;^*a it tfiw 9ti)at €«W 1o liwri ;>«aXT: »riJ nl ;»^.>X£X|
^i.jft< > t i>Xuov iUftiim Mio»»s *fi(r nl <>9JGi»l)Jlir* on •! aTt/il .M.S&dXl
eourt. In the •xerclse ol' its discretion, aheuld hare granted the
■otion of defeudante lor a rehearing in the cause.
For these reasons the Judpaent is reversed and the oause
remanded.
BSVBRSSD ASTD BSMAliDED.
MeSurely, P. J., and O'Connor, J,, concur.
38486
THE PEOPLE OF THE STATE OF ILLIUOVS,
£X RSL.» 3TEHLINQ OUAHEf^S & OTEES^
XRO*« a oorpor^tlon, et al,»
P«titlonerSf
THE OIROUIT OOUHT OF OOOK OOUUTY AMD
BEMJAUIB ?. EPSTEIH, JUDOE OF THE
CIRCUIT COTJRT OF OOOE OOUMTY,
RiMpondeats*
ORIQINAX. BILL
FILED BY JPETITIOHlKltS
FOR *RIT OF PROHIBIT imr
IB APPELLATE OODRT
OF ILLIKOIS
FIRST DISTRICT,
285I.A. 590
V
MR» JUSTICE HEBEL DELITIREO TWS OPIUIOH OF THE COURT.
This oause is in this eourt upon an original petition filtd
by the People of the State of IXXinoie on relotion of the sterling
OXeaners & Djrers* Inc., a corporation, et al* againet the Ciroait
Court of Cook County, and Benjaaln P. Epstein, Judge of the Circuit
OouTt of the Circuit Court of Cook County, pr?)ying that a writ of
prohibition issue ag&lnst the respondents. The petition filed herein,
ftaong other things, alleges that on July 13, 1935, in the Circuit
Court of Cook County there was entered a final decree entitled
Cleaning and losing Plant Owners Association of Chicago, a oorpora-
tlon, plaintiffs t* sterling Cleaners & Dyers, Inc., et al.,
defei»iant8, from which final decree it appears substantially that
upon the answers being filed to the ooaplaint of the plaintiffs by
the defendants, the cause having been referred to a Master in Chancery
and upon the report of the Master and exceptions to the Master's
report^ the court entered eertain specific findings and ordered as a
part of its decree:
• (3) That all parties hereto, both plaintiffs and defendants,
and each of the«, and their officers, either in their indir-
idual o<^paclty or acting for or on behalf of said corporation
or any other corporation, their agents, attorneys, solicitors
or employees, and all associations, firms or persons «!Ctlng
In concert with, assisting or aiding, confeder«(ting or con-
spiring with then or either of them, be tnd they and e^ch of
them are hereby permanently Enjoined and Restrained of and from:
T«t<OC STAaJi^^A gi
0eS.A.l2 8S
1
(ill aoi^Xlaq Itmi-^J'xe ax>. aotits tnuet 9lMi ai bX •«JSfjiO eMT
Jl**o;i .) aa^irl. ^at®fsql *% atamla^U Dub ^t^^suoO afooO to *ij;/oO
t{»2:>i; i:.£lii Lioitii^ 9<1T .i^iisdJbiBOfiafti; 9ii^ ifttaiA^jB mjBtki aottiditiorq
itniiQ 9tit nt ,6561 ,?! xlxrt* a© *.«ifif 898©XXi» ,»8«iri# leri^o sftasA
,^si^i*ii9 sw-xooft Xisnit 5? ^tfttfia aew »x«tf* Y^jkwo^ afooO to JtcboO
•'Stoqioo t) «ca^cld^ to aoxt^itiHftecA sfftsvO ittfiX^i s^i^xQ Jbod ^aXiSJStlO
If ,.oflI ,3'r»x6 ^ irrraiyitltJ j^iliatB *r 8ttl*ai«X<j ,coi;f
t»if^ tXX«i^n«^«i£/e aicsiKftl^ tJ: dtf^oaJ^ Xsait /foiifv amtl ,«tfl«Jba9ttJb
^ ettltnlHlq «iid to fnlalqmo9 %it at bsin ssiocf •t$m%aa •tit iwqjtf
»oft«ifO ai rcttse)^ ^ oi^ l>»TT*t»7 a»«<:f ^iv^d ofii/so 9if# ,8#iijiJbfist«J[k sjlt
B*ffnjM *iit •f t£K>1^7*OKO t>nB t9iBtsM •dt to #«»q«T •!(# ffoqfir A>iu
■ •« Ibfttolrxo bOA v^ibatt »ilio9qe jU«#<e«o JNne^xzo tuaioo 9dt ^itoq^r
i«»to*jb B^i to ^s<q
,eta3JMot9l> t«t ") "
Ijiillo^- •iio«T»q t© »if' ^fteexoXcfce to
~n<.', ff> n. ri-^'^tttoftT^OCv « t '.!i-i!' ^"160006 fli
-in arcf » ; Iqe
(a) Selling* offering for s?^le* r«Bd«rlng or offering
to render at retail* eleaning and Dressing scrTloes below
cost* Selling* offering for sale* rendering or offering to
render at retell* cleaning and pressing serrloes* for menis
and woaeB*8 garments @t a prloe less than serenty-flTe (75^)
oents per garnent* for onsh and carry* and less than ninety
(90#) oents per girment* called for and delivered.
Selling* offering for sale* rendering or offering to
render at wholesale* cleaning services for aen*s suits*
unfinished* or as is coaaonly referred to in the trade as
*x* work.* at less than fifty (50^ per cent of the oaeh
and carry prloe as set forth herein*
selling* offering for sale* rendering or offering to
render at wholesale, cleaning and pressing* or as is
eoomonly referred to in the trade as finished work* Ladles*
dresses at less than sixty (60]^} per cent* of the retail
oash a&d carry prloe as set forth herein*
(b) Advertising in any publication* newspaper*
periodical* by signs* on wagons* signs on windows* signs
on trucks* throxi^ the radio* verbal aolioitntions* through
the use of oiroulars* handbills* billboards* or froi oaklag
known in any other atanner thet the cleaning and pressing
serviees as above set forth in paragr&j^ (a) will be rendered
at prices below those designated in said paragraph (a) hereof*"
And also fros
"(g) Engaging in the o^mspiraoy or ooatbination in
the Gleaning business for tbe purpose or with the effeet
of destroying* injxuring* or d^tsaglng the plaintiffs* or any
or either of then by the doing of the acts herein restrained*
(h) Singly* or collectively engaging in \infalr ooape-
tition''or unfair trade practices in the cleaning and dyeing
Industry in Cook County* as set forth in the paragraphs* * *,*
It appears frMi the petition thnt there is pending in
the Appellate Court of Illinois* for the First District* an appeal
frea this decree entered by the Cireuit Oourt* and that together with
the notice of appeal by the relators* Sterling Cleaners & Oyers* Inc.*
et al* a 15*000 bond was approved by the court below and filed in the
office of the Clerk of the Oiroiiit Oourt* with the fidelity and
Casualty 3o* of Kew York as surety*
It further appesTs from the petition thst after the approval
and filing of the bond* the relators did* after July 19* 1935, continue
to render cleaning and pressing servioe and advertise the easM at the
/UtiaXH^ S*£13«£Q!S Las
o* :• ' " ■ ' ■ " • ^ . : ' • "
r
o#
iife; £>!«« iS.
■-t
ei[# . . .. .,^.. - - - . «-*w Imorf OC- 4. f-' ♦•
taXiaoe ,6^ . .. < jaJLXil Am
s
aame prices they did prior to the entry of the deoree; that pureuant
to a petition for rule to ahov o^ueef Edward A, rink^ one of the
relators* was oa July 37, 1935j ?)djudged guilty of oontespt of
oourt and senteaeed to the County Jail of Oook Oounty, for a period
of sixty days; that on August 2, 1935, the Psaoook Cleaners and
Dyers Ltd., a oorporstion, one of the relators, was adjudged guilty
of oonteapt of court for riolating the injunotional order of the
decree of July 15, 1935, and fined $5,000* From these orders appeals
ars now pending in the Appellate Oourt for the first Distrlot. There
were further petitions pending a^^ainst certain naaed relators for
alleged Tiolation of the injunotional order entered on July 13, 19S5,
and eontinued to SeptOKber 3, 1955, before ^^njamin P. Spstein, one
of the J\2dges of the Circuit Court. It also appears that on August
8, 1935, the plaintiffs in the original proceeding filed further
petitions to hold £dward a« Fink, Peaooek Gleaners and Oyers, Ltd.,
a corporation, and soae fifty eaployees of the corporation in
contempt for a riolation of amid injunctional order entered on July
13, 1935, which proceeding was continued to Se^teatoer 3, 1935, by
the respondent Senjasiln P« Ipstein, one of the Judges of the Gircuit
Court of Cook County* The respondents filed an answer to the
petition, and fron this answer it is apparent that the facts are
aubstantially admitted as set forth in the petition of the rel«ttors,
and the question involved in this proeeeding is whether under the
facts la the record the respondents aust obey the Injunction provided
for in the decree, where on appeal a supersedeae shall operate upon
the filing of an appeal bond, as provided for by the Civil Praoties
Act, Ch« HO 3ee« 83, Par* 310» as follows:
■Aa appeal to the Appellate or Supreme Oourt shall operate
as a supersedeas only if and when the appellant, after
notice duly served, shall give »nd file a bond in a renson-
:^ble aaount, to secure the adverse party* If the bond is
given before the reoord is filed in the reviewing oourt, the
0
tmmuviv ro«t> frf* ^ta» ©iff o# tdX^tf bil? ijexl* aooi^q muib
OiAS lu »i«\ , ♦ «»6i»«ft v«<iFa o* «Ijy« tot /3roJt*Jl:J^»q s o*
'/.'■ c;T»ttfaIO i»ooj»»^^{ »dL#- ,a«Si ,S #a8B^ oo *«tf* ;»1^ Y#xie lo
n»iiT *t9JLi^%l(S jfeni". oo- s^Ali^iijA •«!* itl Bc^jUsfreq iron rt«
T»t 8ta#i»i*rr fo^aisui lUiii^ttao cTwrifiVf? jgaiiw^ff »aGlfi^*ii tfttfJijul »t«w
•too «jii;»^«^3< .^ flir , ?'»cfyb<^4«^ o;h &»»ald'm»o bmB
Ytf « :'!»ani^a©© a^^w 3Sifc»«»ootq tfoi^ «(i£6X «CX
•Tji It: u* ifl^tf t T«»raiiis aXtft iw»«l Sua «aoX#i;r*q
««Y*#xIrr 9ai to iToititttq V «^^ «« l»e^#Xnf>a xXlBitOA^tifitni
jM^ •^ff'Y^qc Ilin^ sB9teaT)»qif« 4 X««cr(jB oe 9t9d9 «»«ir»«i> td^ aX tot
:imoii6i Rf> ,ox' . /.;« .©©e oxx .ifo ,#*a
• tAT«|« ilMI&m fTim^^J "tmBtTnuf- vr'. .>. .;, (s^i.^ ct Jjl:9(^M OA*
a2 tnotf »K* tl ., ^tauomA •l(f»
amount and teraui thereof shall be fixed and the aeeurity
approved hy the trial judge or hie suooessor in office,
or nhere thle is impossible beoause of the absence froa
the district, siokness or other disability of such judge
then by any other judge of said ootirt, and the bond shall
be fixed in said court* If the appeal is from m judgment
or deoree for the recovery of money, the condition of the
bond shall be for the prosecution of suoli appe?0. and the
payment of the jisdgment, interest, dmsagaa and costs in
ease the judgment is affirmed. In all other cases the
condition shall be directed by the court with reference
to the oharaoter of the judgment, order or decree appealed
from, «
It will not be neoessary for this oourt to determine
wilt t her or not the trial court waa aap(»wered to consider the ques-
tion of the violation of the injunction decreed by the court, or
tha related quest iona presented by the parties to this action 9s to
tha power of this oourt to issue a writ of prohibition against the
respondents. This oourt has considered the original oase here on
appeal entitled, gleaning and Dyeing Plant Owners Aaaociation of
OhioagQ. a Oorporfttion. Plaintiffs (Appellees) v« Sterling Cleaners
S^ Dyara Ino«. et al> Defendanta (ApDellants). Ho. 38486,
liiiioh la the basis of thia prooeeding, and has reversed that case.
Therefore tha subjeet matter relating to tha inatant oase is disposed
of and it will not be necessary to consider the merits thereof, and
this prooeeding is accordingly dismiasa^t
SUIT 0I31CI83S0«
HAU, P.J. AND QmiQ £# 30LL1YAII« J. OOMCUIW
.n "i':;':'i ,
*fm. , «tATI,HD8 ^.Sr eZKS0 mtA *^,^ ..UAH
38496
./
//
OLSIANINC: & DYEIKG PLANT 0WHER3 ...J- .f
A8800IATIOK OF OlilOAGrO, a Gorj^' /
oration not for profit, et al, "^
Plaintiffs (Appellees),
▼.
SDWAFB A. FIMK, and PSAOOOK OLiiiilHERS
4k DYERS, LTD., a Gorporatioii,
Dofendants (Appellants),
APPEAL PROM
OlROaiT COURT
COOK COUNTT.
2S5I.A. 590
KR* JUSTieS HEBKL DBLIVSRED THE OPINIOS OF* THE COURT,
This appeal is in t hie eourt from an order of the
Circuit Go\ixt of Cook County entered on July 26, 1935, finding
the respondent Rdwsrd A, fixxHc guilty of oontempt of court for
▼lolation of the decree of the Circuit Oourt of O«itok County
entered on July 13, 1935, There is bIbo a like appeal by the
respondent Peacock Cleaners & Dyers, Ltd., a corporation, from
a like order entered on luguet 2, 1935, finding this respondent
guilty of contempt for violation of the decree entered by the
court on July 13, 1935. Upon an order entered in the Appellate
Court of Illinois, First District, these appeals were con-
solidated for hearing.
The court entered a final decree on July 13, 1935 in
the cause then pending, wherein all parties to said proceeding,
both plaintiffs and defendants, were permanently enjoined and
restrained, among other things, from seling, offering for &tl%,
rendering or offering to render at retr^il clepning and preeeing
for men's and women* e garments at less than 75 cents per garment
fdr oash ^nd carry, and less than 90 cents per garment called for
and delivered, and from selling, offering for sale, rendering
8€i»ae
^
, (3»®IX©qqA) ellltnif^X?
Si^
06 G .A.I G i^ •
a4* "io isftno is^ aaoxl tx'rco airft fil ai I^scfqr*? bMT
»;^aXI6qoA srfd- ai I>sTP*fle leJbio nJB ; oqU ,3S6X ,SX ^XcrL no *ai;oo
-xioo ^^X'^sqgs ef?»xfd' ^foilfnin l-ntx^f ^KjioaiXXX 1« Ji^oO
ai 25QX jSX yXuL no ss-io?;'- ^ ■'» -^ •- *- ^.j;
"iGft Tol §3J:t-'Mo ,.ijaX X99 ao-' '" - -^- ;aot&M ^b%aliit&»er
»--5«TG ba«= ^xn-^BXo XX -:f - mi^llo 10 saXTt»6a»rt
■\
or offering for sale at wiiolesale cleaning servioes for men's
suite, unfinished, or ae eommonly referred to in the trade as
"x" work, at lees than 50 per cent of the cash and carry price,
and of ladies* dresaeR at lees than 60 pax cent of the retail
cash and carry price, as provided in said decree, and further
restraining them from adrertising in any form that they would
render cleanin>;i and presping service at prices below those
designated in the decree.
The respondent Peacock Cleaners & Oyere, Ltd., together
vith the other defendants named, appealed from the decree and
perfected an appeal to this court, as provided for by law, by
presenting their supersedeas bond in the penal sum of $5,000 with
3tB surety, which was filed and approved in the 'Circuit Court
of 8ook County, Illinois*
The respondent FJdward A, Fink was not named as a party
to the original cause, nor named in the decree entered on
July 13, 1935, although he was and is the president of Peacock
Cleaners & ^yers, Ltd., one of the defendants.
During the pendency of the appeal in this court, as
above stated, the plaintiffs in the cause did on July 24, 1935,
file a petition as amended upon notice for a rule upon the res-
pondent b to show cause why the r- epondente should not be held In
contempt of the Circuit Court of ^ook County for an alleged
violatioa of the decretal order entered on July 13, 1935, In
rendering cleaning and preeslng service of men's and women's
garments below the prices set forth in said decretal order and to
advertising their said services and prices in manner allegedly
contrary to the provisions of said decree.
a "flea lol asoivisa ,d(axjBJ8«Xo ftlJsasXofiw Ab ©Is xol '■■ax o
list 08 n^ji 5)-.t»,&x,& 'aeJtfe'
s^^oAi wolecf aaoiiq
rf*lw
lisjijia*":;.
■i^i« ,esex ,51 tJ^i
—8 ST f rf* rro^ f .i ■;!■
{■-'ageXXA n» %ot \ ....:.
al ,a€8X /JX xXi/'^ oltaXoiv
■ •ae«o?r /jao ■; 'uyt:^ _ ^,., ,, ..: ^.,_„ ^ ,^: ^i^x&ba9X
i
PiMPsuant to this notice certain of the respondents pre-
sented tlieir separate petitions f©r a change of venue from one of
the Judgee of Cook County then presiding, on the ground of preju-
dice of the said Judge against the respondent Peacock Cleaners
A Dyers, Ltd, The Court denied the allowence of a change of
▼enue upon the ground that two changes of venue were granted
In the original proceeding. The respondents thereafter filed
their several answers, wherein they denied they were guilty of
contempt of court, ag charged in the amended petition filed
by the plaintiffs, and the court heard no evidence upon the
issues and disposed of the charge of contempt upon the plead-
ings, and entered an order finding tie respondent Sdward A.
Fink guilty of contempt of court and committed him to the
County Jail of ^ook Co^mty for a period of 60 days, and the
respondent, Peacock Cleaners & layers, Ltd., guilty of contempt
of court, and fined this respondent #3,000, to be paid to the
Clerk of the Court, and that execution iesiie forthwith.
Several questions are presented by the resoonclents,
9ae of which is that the def ndante have appeal,ed from the
decree entered in the origipal cause and by the filing of an
appeal bond, approved by the trial court, the Bame operates aa
a supersedeas, a«td the court in the instant case was without
jurisdiction to enforce the final decree during the pendency
of the appeal in this court from the original decree.
The pl0intiffs* answer to this contentioi' is that the
order approving the bond did not make the notice of appeal
given by the defendants a supersedeas. On the question of
appeal the law controlling is provided for in Ch. 110, 3ec,82
of the Civil Praetice Aot, 111, ^tate Bar 3tats. 1935, as
s
lo x*«^ii''^ et0«f ^6rft b&laab x®^^ at&reA^ ^nx^^sas Iei9v«a xi^di
®dt rn>cro ^n.-Tsfeivs cfl bimd ttuoo ©.; , I<5Xq ad* X^
•B,*?*!: tqastfaoo Iko asTJRrfo ©rfi- lo 6seo<{ai& fcxia aexrsal
Qdi Ot r;:.' i:wmo?> ^' •- . ;-:rs£s:tfioo lo \;t.ri'rj iai''*
8r ' .i&/»*(|f vtaBba 't9b &tit t^rf* ai dojfl^'? lo »ao
«» "io ^iilil 9tii x^ ^a* aei/BO Xisxiigii:© aril- ni boiad-jia aoTcoefc
8£ 8«*.siogo eft6« 9d^ ,crx oo Xfii^r 9di ^d oi-'VOxqqK^JbflOCf iBaqqji
^ijod;l'iw Bern ^eso taaiBiii 9di nt iiiy oos fSAtfteateqaAi «
xonedneq »ift vjiri^mft so^ioat XjBnil »rf* aorto'tno Qt .olifoifcalij^j;
.98rtos,6 Xcx.: iU MOt't i-xtroo aiisfi' oi i8«<i;qj3 ttilJ xo
X^eqqji It* ooiitox' arfj- aaffiw !i<:>a bkh &irocf arf* ^Xvo'^^n T»4i)to
to iioi^8fi<9p ad;f aO .tjfielbaatQiiQptrai n a^«b4r#l;a# ojfif ^, .
follows:
"An appeal to the Appellate or Supreae Court shell
operate as a eupereedeae only if and v:h«n the appel-
lant, after notioe duly served, shall give and file
a bond, In a reasonable amount, to secure the adverse
party. If the b nd is given before the record is
filed in the reviewing oo|irt| the amount and terms
thereof shall be filed and the security approved by
the trial judge or his sueceseor in office, ♦ • •
If the appeal is from a judgment or decree for the
recovery of aoney, the condition of the bond simll
be for the proeesutlOB of midb. appeal and the pay
aent of the ju%ment, interest, damages and octets
in ease the judgment is affirmed. In all other oases
the ©onditio:^ shall be directed by the court with
reference to the character of the jucl ment, order
or decree appealed from. If notice of appeal is
served within twenty (30) days after the entry of
the order, determination, decision, judgment or de-
cree complained of, and if bond is given and filed
within thirty (30) days efter such entry, or within
euoh further extended time as the trial court may
allow within euoh thirty (30) days, the notioe of
appeal shall, upon the approval of the bond, operate
as a aupereeaeas. ^fter the expiration of such thirty
(30) days, no appeal shall operate as a super gedeas
txoept upon express order of the reviewing court •"
In the diecuSBioB of this question the co\irt will
consider the various provisions of the Civil Practice Act in
arriving at the intention of the leeislature in the passage
Of this act. From section 82 it is clear that the giving of
notioe of appeal and the approval by the court of the appeal
bond operates as a wupereedeae, provided they are filed within
the time limited by the act, that is within 30 dr?y8 after the
entry of the judgment, order or decree. However, the si^Aite
provides that alter the expiratio: of the 30 days no appeal
shall operate as a supersedeas, except upon order of the
reviewing court. The language oi the act is clear. This view
is supported by Par. 1 of ^^ec, 76, which we find further pro-
vides that where ah appeal is perfected or a.lowed more thaa
30 days after the entry of an order, the reversal or modifi-
qo
9e
* ♦ * ,*^
■
09820 -ibiUij jLI.- Ill
ifi'i^ tl'f'T* Off ''
sir*"*-
Tf^t'
ni 3^0/\ eoX&p&'x^ XivJtO arit lo aaexsivoiq suoXxssf 9dt «»bianoo
io asi:'*'-*? edi &Mt TBslo <?i ^x S8 iioitosa mo-x"? ,*o,s aJtrfl lo
X«©efCiJ& oii* lo d"ri;o® ad* Y«f X.Js'iro'KjG « *fft >&ii6 Xa«<^c[i!5 Ito 9^itoB
XasQ-qs Oft %\Rb 0 jttsstlcpia ojl* ^^^le ^Tsilif 9d£»ivoicq
waiT tXif'' . aeX ©rfT •t'xi/oo SiSiweivsi:
JMMft tToifi ftswoXJ^ no l>o*o©l v©(jqjE it@ ©ismIw ^firf* saMv
-m!>«a 10 X.6aT»v Tj^® 0rfj T©nr a^fifc OC
5
oatlon of the order shall not affect certain acquired rights
as therein set forth and would Indicate tJist it was the inten-
tion of the legislature thst where the bond which is to act ae
a super sedeae is filed within 30 days it shall affect all
parties and pereone not parties to suoh action, and stay all
rights and proceedings under the judgment or decree appealed
from.
Zt is well to have in mind in this connection, in con-
struing this act, that Par, 261, Sec. 114 of the Civil Practice
Aot, being Rule 37 of the schedxile of rules of Court, provides
for the method and manner of applying for a bond in a review
court. Bubdiviaion (4) thereof sets forth the form of the
certificate to be endorsed upon the notice of appeal by the
elerlc of tlie reviewing court, and provides that said notice
of appeal is xnacie a supersedes b and •♦is to operate as a
suspension of the execution (judgment or decree) and as sueh
le to be obeyed by all concerned." Froaa this provision It
1« olear the legislatxire intended that when an appeal is per-
fected by the filing and approval of an appeal bond operating
as a supersedeas, whether in the trial court or upon leave in
the reviewing court, such supersedeas shall operate as a sus-
pension of the execution of the judgment or decree.
In Haley v. w alter 141 B. W. Rep. 166, wherein a
perpetual injunction granted upon a final heaxinfe of the
aerite was stayed by a supersedeas b d on appefl under the
terms provided for by the statute, the Court of Civil Appeale
of Texas, 1911, in passing upon the issues Involved, said:
"It Is this particular r asoning th?t brings ue
to the result we arrive at in this c^-se. In other vords,
thtt statute has said in so many words that on an appeal
•a*: rfj-i
^asi:^ a-s
■.talBiv:..
0 aoit
;d JB
^oaieq: JbOft ••i#Ta<j
XXs 3 0f/il« IXMa di si;\
-noo ; , • ■
8SJb: . ..toA
Asssa »s^ t>A3 itt»'AO!7i» so ^•a.*5i'a!*i.>.{,f^) ii<}i*ji/5i®.'c® ad* io fl©iaiiSt>Q;aA/a
jti 9?{3»X «to«r£r %o tixi-oti. Isii4 9tl^ Hi .MmiBim (»««.b9a7«ipra & sts
-»*f« « are »:?*x«q© 1£^B 8i»»^««"5»Qtfs il©x/s 4*t£;oo Sjerxw^Xvat ©^*
erf? I'^an J u-A-r-iasi ^_ be^J^* a«w s^irrsffi
8/ Yf <To"i h--r-Hri^'"-r- aB5Tv^.+
from a final he«rin£=, the giving of a supersedeae bond shEll
euspend the ;judginent. It is not, to our minds, a question
of whether it is a politic rule of law, or whether to hold
that the judgment ws not suspended BJiti:ht be more effect ivt
in some cases, but simply n question of what is the law.
The caae at bsr was a. final he' ring on the merits; it
was regiaerly appealed, w th a supersedeas bond; that
;Judgment granted the relator a aiandatory in;}unotion «nd, to
some extent, a prohibitive in-junction; and, tith the
statute plainly providing that on an appesl from a final
hearing on the merits the judi^ment shall be cueoended, we
are unable to do anything but hold that the judgment is
suspended.
It follows thst if relator's jud^iment, granting him an
injunction, is suspended pending respondent's s-rrjeal, the
injunction ie stayed; therefore the respondent' s failure to
comply with the orders contained in the judgment and by the
injunction was not violative ther of, because the same was
stayed pending his appeal."
It ie evident in the instant case that the decretal order
is mandatory in character, and the final decree so st5teB, In
the discussion of the language of the decretal order entered in
the inatant ease we reached thie conolusion upon this a peal:
fbat the language used by the court was mandatory in character,
although prohibitory in form. The eame language is used in the
final decree as w&s used in the order granting the plaiat iff s in
this oasjB a temporary injunction, and in considering this subject
upon an appeal in the case of Gleaning and Dyeing Plant Owners
Assn. V, Sterling: Cleaners and Dyers^ Inc.. 278 111. i^pp. 70,
this court aaid:
"When we ooneider the order in the instant case,
the court directf? the defendontg to desiet from selling
©r rendering olenin;, and dyeing service for less than the
price epecified in the order, or in other words, in order
to render service, the defendants nre obliged to sell their
service at the prices provided for in the ordei^. The effect
of thie injunction order is mandatory in character. The rule
is that ceutlon should be exercised in the issuance of a man-
datory injunction baeed uoon the sworn bill of compl int
alone. The plaintiff must make out a clear case, free from
doubt or dispute, as a basis for its isruance. here, -is
in the inst^mt case, complete relief may be afforded the
complainant upon a final hearing, upon the facts stated in
.-^<i.
am miff ■^ffl^qr^rr* .tn^^f^-'^-n''' p'tA^^JT^t yjt #'-??* ««'0.f"l«*^ ^I
:&9roBt c, ..,.'■'■ ., . ... .. ad*
:j iBuloaoo slrf* bsdoeeT ^rftaal Mft
,"'. . '-ifefljsa B.6W *ix/oo arid- 'i ..dt tsifT
:t} 'v fruoo aid*
GiO-.
ill
the bill, the plrintiffp are not entitled to a
temporary injunction which in (Bandstory in character.
♦ ♦ ♦
What we have said in regard to the mandatory character
of the order entered by the court in fixing the prices
for cleaning and dyeing services that appear in the
temporary injunction ?!pplies with eauel force to the
paragraph contained in the ssme order that prohibits the
defendants from the use of advertising medluas in an
effort to sell the eervice at 'Drioes other than set forth
in the injunctional order."
It has been held in Barnes v, Tyoogxap^iioal Union,
238 111. 402, th.'t If an injunction is m-ndstory, the takix^
of an appeal, which operates s s supersedeas, precludes the
trial court from entering any further orders in execution of
the decree until the appeal is dispose' of. The court
said:
"There are juf^iments and decrees which require some-
thing to be done for their enforcement and there are
others which are simply prohibitory or self-executing,
and others p:r talcing of the nsiture of both, a pro-
hibitory decree which does not require ?.-,ny things; to be
done is eelf-executing. It requires no process, but
by force of the decree itself the party is bound to
desist from the prohibited act. If an injunction is of
a mandatory character, requiring: soffiething to be done,
or if negative in terms but %ith the 8-",me effect, a
proceeding for contempt in refusing to obey it is in the
nature of an execution to enforce the comraand. '^^n injunc-
tion the effect of which is to suthorize one party to
take poaseasioii of property or to do some act, -.Ithough
it may be negative in form as ag? inst tbe other party and
merely commtmdis the latter not to obstruct the former in
taking possesai n of the property or doing the act, is
in reiity affirmative in its n' tare, and a proceeding for
contempt would b^.ve for its object to accompli- h the doin^'
of the act. An apnea! would st?y any such proceeding,
while it would have no such effect with respect to the
poster of the court to compel obedience to a salf-
ezecuting decree
n
"3© from this authority it is apparent thrt here an
appeal from a decree is perfected from which an injunction was
granted providing for a mandatory direction to the parties
affected to comply with the injunction, further proceedings are
stayed until the matter on appeal is disposed of by the
appeals court. As we have already indicated, the order of hs
ot b^i&I^ct^
elEliJi
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0 ajlJ- lo
^ aoxxiU iBoX ' g sx>4oavl' .v pan-
lo aoltsjo •^otli'xi/i xo.'S iislTs#o9 «ott ^lijGO iisinrt
tiwoo &ii.f . ■' ?1 /'"sc- ■ litem o»xo0fe »£!;*■
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vaifft
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TC
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ttWOO Bi-si^s^^
•
oourt in its decree enjoining the defendants from selling
their service at a price less than the aaount fixed in the
deeree ia mandatory in oharacter bat negative in form. In
other words, the defendants are required to charge for their
services the aaotint fixed in the decree and are prohibited
from transacting their businese in aocordanoe « ith their
plan and method lierstofore followed. Therefore, we believe
the opinion above qxioted is applicable to the matter before
us herd on appeal.
Another material fact i% the record in the instant
ease does not disilose the nlaintiffs suffered any daaiage
or injury as the result of the acts of eontempt oomplained of
by thea*
In the case of Rothschild & Co. v. Boston 3 tore of
(ShioagQ . 219 Ill« App. 419, w nioh was an appeal to this oourt
from an order granting an Injunction, we said in discussing
the question involved:
"We understand it to be the law that in a proceeding to
punish, a party for the breach of an injunction, the
party complaining must not only show a breach, but he
must also show that he has in some way been injured thereby?
Citing People v. Djedrioh. 141 111. 665,
the reason for this riile is stated in the ease of
Pgple V, Diedrich. 141 111. 685, a^^ follows:
"Prosecutions for contempt are of two kinds, ^'hen
instituted for the purpose of pxinishing a person for
misconduct in the presence of the oourt, or with
respect to its authority or dignity, it is criminal
in ite nature, »hea put upon foot for the purpose of
affording relief between parties to a cause in ch ncery
it is civil - sometimes called remedial. Numerous au-
thorities could be cited in support of this distinction,
but the decisions of this cmrt le^ve no doubt on the
subject, (crook et al. v. The People, 16 111. 534;
Buck V. Buck, 60 id, 105; Leopold v. The People,
140 id. 553.)"
.Xs^qja no '-leri &u
'7
<xot I:
,bX Oi^i
9
Accordingly, the contempt charge on appiicption of the
plaintiffs Is remedial In character, that la, Instituted for the
purpose of compelling obedience to the in^unctloii, and of afford-
ing relief as prayed for by the plaintiffs, and an appeal will
lie from t]^ order of the court, either In laposing a fine or In
diteharglng tho defendants*
From the record as we find It, we are of the orilnlon
that the appeal of the defendants now in this court was oerfected
In the mode provided for by the Civil Practice .4ot, herein referred
to, and that the court In Imposing punishment for the alleged con-
tempt was without poiser to do so, for w^nt of proof that the plain-
tiffs suffered damag , Thersfore^the order entered by the oou t
Is erroneous, and for that reason Is reversed.
ORDER REVaiRSSD,
HALL, P. J. AKD
D£NIS E. SULLIVAN, J, COI^^CUR,
«yla- iuk '18.1) &dt gai:;!^Tr^£[0ali>
38497
OIiEAMIKG & DYEING PL .MT OWKKRS
ASSOCIATIOH OF OHIO AGO, a
Corporation not for profit, et al,
Plaintiffs ('Appellees),
K0WARD 4. FINK and P& COCK 0I.KARER3
& DTKRS, i4TD,, a Corporation,
Defendants (Appellants),
7
^
/
APPEAL FROM
OIROUIT COURT
OOOK C GUSTY.
j28 5 I.A. 5 90
MR, JUBTICE HKBSL QSLIVEMD THS OPIKIO O^-* THE COURT.
The appeal in this oaee, wherein the respondent
Peacock Cleaners A %ers, Ltd, was foimd guilty of oontempt
of Court in violating the decree entered on July 13, 1935,
was consolidated vlth oaee Ko. 38496 for hearing, and tho
opinion filed in that case is oontrolliia^ upon the facts
and the law in the instant case. Therefore the order finding
this respondent guilty of contempt of court and asseeElng a
fine of |3,000 for suoh violatiou is reversed,
ORDER REVEIiSED.
HALL, P. J, AHS
DKKI8 S;. 3ULLIVAH, J, OOKOUR,
v&^ds
ti-€ lo\dio<5j:ow
, \lus
ii«iU&I%
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^ /\ T ^ ^ S(
^aibait tq&xo t>u^ yioiy'x»ifT .»««$» iaeisai »rf* ai »r«X ©if# bas
.&e«tGxr&ic »i ' oitisieJ'S' rfb«/« not 0OO,S|l lo »cX^
*-t^.7«0
,aJAH
38916
PiiOYIDE£iI MUTUAL LIJi lUSJiiJ^GR
COMPANY OP PHILADiiLPlilA, a
Corporation, et al., )
Appellees, )
IBTEKLOCUTORTf APPJaL SROU
WILTON B. MARTIK . ) ^ ^ -« l'
Appellant. ) _. — « fT «i 1 1
) SUPiSRiOR COUBT OF COOK COUiiTY.
28 5 1^.591^
MR, JUSTICE teATCHETT DKLIVEKSD THE OPIlvlOif Oi* THE COURT,
Plaintiffs filed their bill of complaint February 3, 1934,
praying the foreclosure of a trust deed executed iJ-oveiriber 18, 1927,
to secure an Indebtedness in the sum of #76,000, represented by a
note for that amount and of that date, drawing interest at the rate
of five and one-half per cent per annum. The interest was repre-
sented by coupons falling due upon the dates upon which Interest
would become due and payable*
The bill alleged defaults in the payment of an interest
coupon for $2090, due October 15, 1933, and of taxes for the years
1923 to 1931, inclusive, amounting to #29,475,59, which plaintiffs
paid in order to protect their lien under the trust deed. The bill
also alleged that plaintiffs, by reason of these defaults, elected
to deolare the whole indebtedness due and pe^able; tnat in and by
the deed the mortgager consented that in case of the filing of a
bill to foreclose, a receiver might be appointed with the usual
powers; that the premises were improved with a six- apartment bricJk
building, half vacant, and that the premises were not worth more
than #75,000, axii were therefore scant and meager security lor the
indebtedness, and for this reason a receiver should be appointed at
once in order that the income derived from the property might be
applied to accruing taxes and needed repairs; that the conveyance
covered all rents, issues and profits whleh should at any time ac-
crue from the premises.
v<
*
X
dXGdS
.iru}.XX«crerA
.THUOD SKT '•10 HOIUTO SHI' fI?UIS:VlJ*^a nV'CJ-OTA.;a aOITfcUT. «H1
, ':^ex ,BX teommvo'A bsiua^x^ ^ xo jauij jb 'to siw90Lo©T:o't ©xij j5«i7;«lQ
a ^oT fe*^fi«as-ic!>'j ,000»&Vt 'to mJ9 sisi ni osaab»;}'cfef>ai: as oixmes o*
,9ldB\&q ham 9ub sae^^ &X«ov
*«9i3*ni a£ to ^a9tfix;j8q «xi^ ni etXjujs'lsh Jv»35>XXj6 iXirf efi'i'
ai«»x ®^* lo't 89X2;.^ 'to bm. ,CS$X ,ai ifl^tfo;**© «irft ,0«JOSi^ ^o't a^quoe
mVtttnlsLq riolriw , ea .ff'TIk^ GS$ o* liaUnonmu ,©vi0ttl3ni .X'^.eX o* 8SeX
fcd*o«X9 ,a*Xufi't©b ©eoac^ lu noBBei >^d ^9'^'tliai£iLq izsii bsasXXjs obXb
Xrf to* ai iMiii ;oXcf«^q has auJb a89rtfe«*fl»l^ajfc «I©rfw ©f«.t ©•Xiilosb oi
M lo anxXl't 9£li to s««o ai ;J«ri* b&itn«anoo 19 »-%$to!!i »rli bwsA •xl*
•treat iliiow d-on •i»w 8»«i:ia»i<i »xW ^ariJ- biw ,*a»OAV 'tXari .anifeXiucf
•iU 7o't x^-^'^^o®^ -xd^Mea Ao^ ^000* •-xo'ls^diiit «'xsw ba^s ,0OO,€Tt ss&di
•tf ^if;fti» ^^-X9qo-xq sxU aHoi't tsritsfc •aoofil •di imtlt ^obxo ni eoao
moaMX,»rno9 9di ittdi jailjaqei 6«Jb»aa bne, ••xg^ gaii/icoo* oct bslXqqa
-o« •«i;t X*'* ** JbXiaoxUi AQliXw miilsfiq. bOM ■•i/asl .a^asi XX« boioToo
taaeXoaiq •dt OLOt'i atrxs
On PeTaruarx 23, 1934, Wilton B, kartin, the mortgagor,
filed an answer, admitting the Indebtedness, the execution of the
deed and the defaults, but denying that the premises are worth not
more than |75,UUO; on the contrary are in faet worth at least
1200,000; that the apartment building is exeeptionally fine with
large apartments, each of wnlch occupies the whole floor and eaeh
equipped with an electric refrigerator, exceptionally large and
commodious, operated from a central system; that a Tacuum cleaning
system and passenger and service elevators are provided; that tlier*
is an inter-apartKwjnt telephone sj-^stem and fine white metal enclos-
ures for bathroom showers; that the hardware is of solid bronze,
and the floors of quarter-cut oak, wr.d the dining, library and
living rooms are wood-paneled; that ther^ are individual laundries,
stoves, wood-burning fireplaces equipped with gas lighters, etc.;
that the building is of re-enforced concrete, a construction not
subjeet to depreciation, on a corner lot 50 x 107 feet, and con-
sists of ftight stories, with baasiuent containinti a large lobby re-
ception room, a ball room and janitor's quarters; that the roperty
is sltuated'on the south side of East Walton place at the corner
of Seneca street and is almost directly aoross the street from tht
Drake hotel and surrounded by highclass residences in great demand;
that it is a part of the "Gold Coast" of Chicago; that defendant
purchased the land about 1917 and paid therefor #60,000, and erected
and equipped the building at a cost of about $350,000; that the
property is therefore ample security.
The bill and the answer were duly verified,
March 24, 1936, on motion of plaintiffs, the court, after
hearing evidence, aopointed a receiver, and from that ordet defend-
ant has perfected this appeal.
The hearing was continued from time to time, and upon the
suggestion of the court and without objection from defendant, an
ton il*to?^ .<?x» Bdalm»t<^ ' ' -^il* ^ni'^ntB Jetf ,a;Mi;al9fc »jbj "cw i>a9l>
ii»«ft baa lool'l ■• ■ ;.i '" '^'o iioMB ,<Ba-a'?-.i;x.::o:jp ^?an«i
-aoo fcrm ,i?i9'l VOX X 'Da *«^ it(»frj[«» & «o ,noit«ie»'tq«& o4^ *a*C.<f«9
inaba9t9b iAHi ,-o»aox:*u to "^•••O feXe-U* tri^ 'Jto ;^it*;(. x *«xii
bajToaTft b'l lo'taisxx^ bX^^a boa VX@X ^0o«r« ftasX 9x1^ iD»m«ilstxu%
xett*^ .ttuou fMit ^sTtli^aXjiXq lo txt^tiom no ,d€«X ^,^ noi»M
appraisal of th« premises rrtk* obtained from the Chicago Real Estatt
board. Ihla appraieal, made by a eo'ranitteft of fire members of th«
boarr!, wae received in evi'^ence, defendant objecting, however, that
the appraisal wae not made on the proper basis. It was conceded
that the total indebtednesfs due plaintiffs at the date of the hear-
ing wae 1132,231,68. 'Xhe coi'imittee fixed the fair market valut
of the property aa of May 5, 19 36, at #61,650,00,
Mr, Albert W. Swayne, a former president of the Real "Setatt
boarj, testified for defeiidfints that he had prepared an appraisal
in aooordanoe with the system used by the United States govermnent
in connection with its Horns Loan appraisals; that he established
a value based on repro-luctlve cost, less depreciation for the lift
of the property, !Ihere were two other typeo of appraiaala, he
!3aid, one made on the basis of capitalizing the average net annual
income of the property over a period of the last ten years, ani ths
other based on the capitalization of the net income of the property
as at present operated. He estimated the reproduction cost of the
building at present at #389,000 and deducted therefrom 40^ for de-
preciation ," (the building having been constructed in 1916 or 1917)
and gave an estimated net value of $868,330, including |35,000 for
the ground value, The assessed value of the ground at the present
time and also the blue book value as published, he said, wae $35,000.
He had received from the mortgagor, Mr. Martin, a stateiaent of in-
come of the property, which showed the net annual in come lor a
period from 1925 to 1933 to be $22,708, He f^stimated the operating
expense of the property at $12,000 a yeaur, including the taxes.
Mr, Swayae further testified that tl-xe actual income under the
leases then existing for the year beginning October 1st and ending
the next October was $14,860; that deducting $12,000 gave a net of
#2,850, which, capitalized on a basis of five per cent, gave a
valuo for the building of #57,000, and with $35,000 added for
^^evc;^ at-*^^' i>'%riaU •Af ^tf ft««il «»#«tB »<f^ rvrtir »»aaA%ot}9« ai
i^uujxs. ^ din 3^aisXji«dl<l«o l« nJ^aaif »£Ui no 9/^iis »aq , timet
lei 10 difiX :it fe»^9m#iaii8fi a»«<f ^xir^ji ajiIJ;Xii(^ 9^} ,acitslo«iA
000. set «AV ^osjf>G 9;i ,^r7 oyijav i^f^il i^uMd •jU ooX« lioe 9mli
• -xol Mioft.ii X n aitt /^e^re ^ ''WO
.••z«id Si - '-^ i>« i:>Ti»cotq •xii^ 'to OBneqx*
ground value, made a total ralu&tion i'roiu its then earning ov«r
©f $92,000. Averaging three appraisala of ^254,880 ior reproduc-
tion value, ^235,000 for its average annual incoEt over ti.e paat
ten years, and ^9 2,000 I'or its value bscsed on Ita present earning
power, gives a mean valuation ol* |198,960. kr. Swayns also salC
that he had talked with one of the Real Estate l>oard appraisers,
who fixed the fair market value at |61,000. fie said this appraiser
proceeded on the theory that the ten-room aqpartiuents were a tiling
of the paat in Chicago, that people had ^oce froib the ten-ro(Mi te
the five-room apartments, and that taere was no future maritet for
ten-room apartiiients. Asked what ne would say about tuis theory,
Mr, Swayne replied it was a matter of opinion pure and simple;
that he did not think there was any Justification for it; that he
had h'^^en operating and relating a number of buildings and knew that
a ten or twelve-room apartment had not eommanded any nigher rentals
than the four, five and six-room apartmexits; that this building wa«
one of the finest constructeA in that section of the city; that it
had Bedford atone facing, vitreous enamel pliimbing fixtures throu£^-
oat, used in the very finest and most expensive buildings, high-
class nickel trimming, higher ceilings than the ordinary ones, and
a sort of mahogany woodwork. He would say that it was the most
expensive building per cubic foot of contents in the district.
Thta witness also stressed the opinion that the rentals of the
building would go up from ^20,01^ to #25,000 during the next few
years, based on the normal increase of the rents, but he did not
expect to see this type of apartmoit building get back to the
point they ^/ere at one time; that an insurance canipany would, he
thought, lend #100,000 on the property, with prepayments of #2,000
a yearp
Walter Salmon, who has been in the real estate and mortgagt
loan business for thirty years, said that the rentals of ten-room
5auota
".act dri;^ !•
■p*:a^TS:
■ uj*?f»(
;af'v li;
"■it H'f:0
mon »i ,
, i-apx
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3 0'i:j!X*t
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^iot
. ,,^0,00X4
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l^ilr^'^-
/ * A4.-W lO't
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s
apatrtiftent* ^rere Increaaing, an.l tiiut tiiese apj»jt/rent« were rery
desirable. Mr, But2x«riord» eULso in tne reaX estate businees, aaid
he anticipated a tea per cent increase in rents during the next
rental season, and that he estimated the fair oaeh market value of
the property to be iTom |165,000 to *200,000. Mr. Greenlee testi-
fied that in February, 19 33, there was a twenty-lour oer cent
▼acancy in that district, in 1934, a twelve per cent vacancy and
in 1935 a ten p«x cent vacancy; that rents were at the lowest ehfe
in 1933, and that there has since boen a gradual rise; that the
rents, where leases expired May l, 1936, were being raised ten
^er eoit, and that the property here in controversy should bring
in the ©pen market under fair conditions $200,000.
Mr. 01 sen, an arehiteet who had been an appraiser for
twenty-five years and who owned aaartra^it buildings, estimated the
reasonable value of the premises to be $19 5,000. He testified he
arrived at his valuation based on the replaoement cost and did not
think it waa fair to use present rentals in establishing value.
Mr. Martin, defendant, testified he paid #40,000 for the
land and #3f>0,000 for the building; that thex-e were sixty rooiBS,
also a Janitor's apartment, a ballroom and extra service rooms.
Mr, Springer, a witness for plaiiitiffs, said that he had
been in the real estate mortgage "cusiness for forty years arjd con-
nected with insurance and trust companies; that ne knew the property
in question; that its reproduction cost, less depreciation, was
♦109,533, find with the land the value was $136,283; that its
•conomie va7.ue was not over #75,000; tJiat he valued the land alone
at $36,000.
Statetients of rents and operating expenses from 19^2 te
19 35 were received in evidence, showing the hif^'hest rental to be ia
1924, which was $35,821, the lowest in 1933, |8,944, and also
showing the rental in 1934 amounted to $9,126, in 1935, $12,385,
o't-vin
fcf»
■i'•iJ^^ i\J .':';
JJ.J.; j.-is'i Jiitt-;*^ ;
:1 J-! iK.'. Vt.i'-' I
rliXA
at »rf 03 Xiii-.
the operating expense* lor 1954, |6610,26 and In 1935, ^5843,23,
The court gave careful consideration to tnia matter* The taxes
were in arrears for siany years.
Defendant cite* Jtf'ranic v, aiegal^ 263 111, ^p. 316, which
holds that no tvitJti standing proTisione in the trust deed as to the
appointmerit of a receiver, the burden of proof is upon cowpltdnant
to show that the security is scant atid meager in order to juetify
SkQ appointment ty th- chancellor. We think piaiutiffs nere com-
plied with this rule as to the burden of proof. At any rate,
under the conf listing evidence the opinion of the chancellor is
entitled to great vreight, and the question for decision here is
whether the appointsient constituted an abuse of discretion. We
hold it did not. It is apparent, we tliink, fros) all the evidence
that, considered from the standpoint of permaneuoy, the orijiinal
Investment was unwise. The true test of value in a case of this
kind is the fair oash maricet value of the premises. Applying that
test, we think the security for the indebtedness is iz^eager,
scant and inadequate, and that the court did not abuse its discre-
tion in appointing a receiver,
Xhe order of txie trial court is affirmed,
McSurely, P. J,, and O'Connor, J., concur.
,'*. i-tijn <Ji\ t './A'-V")p , tpia 1
.j^lkii. \j .i}'.ii-i.\\.i zJixj
»«s»i •^:
'isifiafites
1 Cite i.T ; . .
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■ .' : •■:/■■." -,••;- ••; _ '■■----' ..cyii
^^iii-x^ii «itJ oiij:;; Birfi' iiJiv; £ir?»i:iq
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. uio9*0 tru
"•xi^Tt^oM
38099
PSOPLB Oy TWi STATii OF ILLIHOIS
•X reX. LILLA H« v/ALTliF ,
(jPetltioacJr) Appellee t
v»
MABTIH DURKIS, Director of feha
2)epartaeiit of La1»or of the State
•f Illiaol&» et al*>
{Defendants) Appellants*
APP^SAL yRCai SITPJa^ lOR
COUPT OF COOK COUHTY.
285I.Ae 591
,1
MB* majaiPIirS J^SIICE SCAJJLAir MLirFJRlD TBS OPINIOH Oi* THE COUBT#
On Pebruarj S« X9'M, Lilla H. alter filed Iter petition
for mandwRUSy seeking to be reinstated in the position of Super-
intendent of Tree KaployiQent* Biyision of Tree 13Biplo3raent»
Bepartment of Lahor of the ^'litate of Illinois. The petitioner
also prays that the defendants be eonzaandw) to pay to her the
ealary appropriated for the position. The Attorney General
filed a general and special demuirrer to the petition on behalf
of the defendants. Both were OTerruled and defendnnte electing
to etand by the deanurrerst Judgment was entered that the writ of
mandaioae ieeue as prayed in the petition. Defendants hare ftppealod
and are asking that the judgment be reversed nith direotions to tbtt
trial court to nuatain their dejamrrers and disniss the petition*
The petition alleges > in sub&tanoe* that on Beoeaber 2f
1919 t after petitioner had cakea the examination for the position
in question, she nas duly oertified »Jid appointed to the positioni
that on October 9, 1916, ehe was appointed Solicitor of ^Sarploymont »
Chicago Free EHiploy««ait Offio«B» and served in that oapaeity until
April 10, 1917, when she was appointed tmperintandeat in eh&rgo of
women's and alrls* Division under the supervision of the General
«<K)8«
«tov.
KQL ''Alic- ^^v^v
T /,"^ ;.s^" Q . ».x.c ^3 i«(i 10
m»l;tieeq m$^ -ret nal^i^aijegusxd c0.^ ii..>.i.>. ted tttiioi^riJttf i^tl^ ,■ r,:r
laoili^oq wW oi b**nioqq ' r -t'^^- - Xafe sjtir eiin «jj«1*«mj u*
to is»j|rraifo rri Jw^fcrn *wiia<jM« fe«i^«lo<|«{a 8«v t^d« tivAif ,VX^X ,0X Xl«qA
Superiatendenti that on Ootobar 1, 1933, Martin Durkin suoe««d«d
Barney Cohen as Director of the Department ef Labor ef the State
of Illinois, and isald Durkin ie now the director of the department j
"that on January 23, 1933 Bhe recelred a notice terminating her
employment as 'Superintendent of .omen's uiTlsion of Chicago Free
Jxaployment Office* ae of that date, * * * which netioe ie la worde
and figoxes as follows, to-vit^
"SIATS OF ILLIHOIS
2)I5PAI^TM5.jrr OF JJiBOR
iiHlIBGyiSLD, ILLIHOIS,
"lire. Lilla H, Walter
2315 East 70th Street
Chicago, Illlnoie
"Dear Mftdam:
"Thie is to notify you that your serTloes ae Superintend-
ent of the l^om«n»B iUviaion of the Chicago Free iJaploy^ent Offiee
«lll terpiinate with tha close of business Monday, January 23, 1933.
"This is in accordance -^Ith carrying out the program ef
eeonoaiy axid for ae other reaoon*
* *.. ^!!T^ ^i^***»" »^ Supar Intend en t of the 'oawn'a Diyielon
Of the Chloatro Prao iSmployiaeat Office hag been abolished, affectire
January 23, 1935*
"Yours Tery truly y
"(Signed) A, H* H* itwood
/assistant Lirecter**
The petition alleges that the said no -ice was illegal and of no foroe
and effect in thsti
"(a) Said notice of lay-off was not signed by the appoint-
ing officer I
"(b) That said notice did not designate the title of posi-
tions held by your petitioner in the claeaified serrice
of the State of Illinois;
"(e) That said lay-off of your petitioner as a aaatber of
the claarlfied S't^rTlos and the retention of tee
temporary appointees, was in Tiolation thereof."
The petition further alleges that Atweod was net the appointing officer
and that "co-incident with the lay-off of your petitioner, on to-wit,
January 23, 1933 two texperary appointees, one John 3olberf and one
Lisle Oberhardt, acting as Superintendents of J^ree j^aployacnt under
temporary authority were retained ae suoh on January 23, 1933 at the
iiiiUu -^-
^bnf^ttt
•▼!;•
^^Ifet #W0 BH*V,V
. Jk«
■ ,i- xxiv
rti ex a-S^«
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^ i ...f\/- '*.■* j; ri i J :'-x'.^ $*i'rt^i.*
• 0
■;,o-vft/.
Arft
fcni^' inuer^lM^^
v-,Ti a» tf»tf9
timtt your petitioner's ssrTloes wero terninated by eald notlo«
of January 25* 1935;" that on January 34, 1953» petitioner serred
a notle« In writing upon the Dlraotor of tho x)epart»ent of Labor*
d eoaniiji Ing Jier reinetateawnt to the position in c^ueation* The
petitioa further reoites that the petitioner » *'uader Seotioa 12
of 'An Aot to leguXate the Civil Serrloe of the State of Illinola**"
on January S5» 1933 » filed a foraal requeet for a hearing before tho
Illinois State CItII aervioe Commiasion, and that on June 19» 1933»
hy leare of iho CSe»ai(islon> she "filed an amended potltioa together
vlth a letter addreesed to the Illintoie Btate CiTil Serriee CoaBlseion*
which letter ie in words and figwroe as followot
^'Illinois state Civil Kerrloe Coib»1bo1o«»
FprlnFfield, Illinoie
"Gentlemen*
"Bef erring to ny letter of January S5, 1933, also the Secretary* o
reply of January 26th awn my responae Of January 30th, Being
Rdrlaed accordingly and after due eoneideratlon, it seeaiB in
order to have a hearing before the Civil Service CoKmiseion.
"It is my belief, upon InTSBtlgmtion, of the chfrngea ia tho
(^hlcago :^ree IhBployment office and the sisploymant of non-clvll
service appointees in that office, lay removal waa oade by evading
the Civil Servioe Law, for political aud othsr reasons, in con-
flict vlth oaid I<aw*
"Hy difuaisaal letter specified *EoonoBQr and for no other {Airpose**
•'Alleging evaeion of the Law lind the purpoae designated not
aooompllehed, other euperlntendsnta haring been appointed vrho aro
not undisr Civil Service, and, alleging x-urth&r that such action
is in direct violation of the Civil ::.errlce Law, 1 hereby reepeot-
fully request a hearing and rolnstatemont*
"Very respectfully^
(Slgnod) "Lllla H. VTalt ar
"Temporary addreae-
760 nheridan Road,
Glencoe, Illlaoie**
The petition further reoltoa that the said CoiBtilsBlon notified her
that the hearing on her petition '«s»s sot for \ugust 1, 1933, at
9 o*olee]c A. M»| that "on imgust 1, 1933, a hearing on tho petition
of your petitioner waa had before the Illinois State Civil "erTloo
Commission, and notwithstanding tho fact that It waa shown that
»!»
11 ittjf *»«•■'. I'^jt-vasf' itttBi-
.-.'13 3jBii* bsiHqoi t9A^ivt mt^ti^
: ;;» eY.a©X X^
.linl flota*
8 *X«''«<'' ■
at
%£S3i-tl!Ai:
:, ^•/alsIJ.^^•^-'
JtXoq 101 ««»'
:a:r.* i-.J;t-X I;-3^i^^?t^ T!...
1«*'
./ •.. ■'-- i:c(\ rff. ]■-■:?. t-'rrf'
■■<ltmV
''^*i€ h-^'
idoXo'o
political appolntaea ymrti acting as Temporary Appointeee, and
that your petitioner has "been illegally ousted* in that (a) she
had not rocelTed any notice of lay-off by the appointing officer,
to-wlt: Barney Cohen and (b) her notice of lay-off did not
designate apeolfically her title* and (c) the fact that the
Assistant director, A. H. "F. • Atwood had laid off your petitioner
and retained temporary appointee? (in violation of Section 5, BvCLm
7 of the Illinois State CiTll Service CoBUttlssion) aaid Illinole
State Civil Service Commissi on enclosed a copy of its decision to
Michael F» Ryan, attorney for your petitioner tinder date of August
18, 1933, in words and figures as follows, to-wlt:
••IlilHOIB STATl CIVIL SERVias OOMMISBIOH
••LILLA H. 'M/aS^mB, EITITIOHISK
VS.
BEPAHTMSHT OF LABOR, STATS OF
ILLIHOI S , ES.SPOHDaHT
"¥• ia»ery iiancaater, President
John V. Clinnin, Member
Ernest Hoover, Member
••Hearing was called before the Illinois State Civil
Service OommisBlon in the case of Lilla H. 'alters, Superintendent,
Free Employment Office, Tepartment of Labor; said hearing being
called OB notice of January 24, 1933»
"A statement. In v;riting, in accordance with the Civil
Service Law, "was filed by the petitioner, setting forth that her
removal was made for political and other reasons and respectfully
requested a hearing and reinstatement*
"Hearing was had on this case before the Illinois 3tate
Civil Service Comoiisalon on Aa^st 1, 1953« The evidence di&closes
in this case, that prior to date of dispensing with the seinricea
of Mra. alters, thera had been three (3) Superintendents of Free
Employment Offices and after a careful survey of the Department,
it was determinad that the Department could efficiently function
with the services of only two (2) Superintendents as they had more
employees than were needed to satisfactorily conduct the business
of the Department*
"The evidenee further discloses that the action in dis-
pensing with the sorvioas of Kirs* alters was taKen in accordance
with the progreim of economy and retrenchment of the Department,
'*The evidence discloses ttftterewas nothing to indicate »hat
the action of the Department in diij^jensing with the services of
Mrs* V altera wad taken for any political cause j as no sufficient
evidence was submitted to the CommisHion by the Patit loner t«
sustain the allegations as set forth in her statement for hearing*
n-'.r --r-ifniQiisi^- 'iX.;i*oqfli9* h^aXMi^i I^m
©;? aoXait, ■ .tvi«c UtXO &;>aJha
^awoXXol: 8fl a»TCH:«f , 'JPX ,81
VXX-U
1, , ;:i
isidfittoM ^i9veok ;ra»air
It*
< ciTorijaa^j.
'•.J^aRls's; iMA ^aitasdi' s &*J>a©irp©«
«,^ ^rnacr^^oXqariK
. .-.v. V .. ■J.-. a. aesij-^eXqais
-6-
*'Th«refor«i the Illinois ntate Civil Serriee Comaiiseion
findB the diepenelng of th« serriees of Uxo. '^aXtoro was not
dona for political cause as alleged In her stAteaent for hearing*
**^« Eiammj Laneastort President
"John V. Clinnin* tfeabor
''Srnoat HooT«r» Meajber*"
Thtt petitioner further alloges that on Gepteoiber 1« 19339 ohe
petitioned the said UQausissioa ''for an inTostlgation under Section
14 of *Ab Aet to Regulate the Civil Gerrioe of the State of
Illinois**" This petition Is a lengthy one. 3y it petitioner
sought to have the Coamission conduct an inreBtigationt under
section 14 of the Aet« to determine the methods of adsinistration
of thtt Departaent of Lalior of the State of Illinois in refer«io«
to the ntate CiTil SerTiee Law and the rules of the Coaadssion per«
taining to the position of petitioner* and to take appropriate action
"to end that your petitioner may he immedtfitely reinstated and re-
assigned to dutyf and i^lth full componsetlon from the date of her
unlawful lay-off," %nd for such other action as the OoBanission aay
deem neet under said section. The petition recites that her
attorney* Miehaol ?• Byan, receired* on Noveaiber 28, 1933 » the
following letter frai tho Comaiisalon:
"l^ dear Mr. Byan:
"In ansvfer to your letter of IJovember 3rd in re petition
of Lilla H« Walter, ^^^uperintendent of Free Smployaent, Departaent
of Lahor* will state request was had for hearing before the
Couaission under Gt^ction IS and hearing has been given and case
fully decided*
"Tory a i nee rely yours,
(>j;lgned) "W* jSmexy Laneaater,
President*"
It aaso alleges that on Deceidbor 1, 1935, petitioner's said attor-
ney reoairer tho following letter froa John V* Clinuin, one of tho
Coamissloners 4
"The Walters ease was disposed of, and unlese it can be
Bhown that teaporarios are doing this work| froa our investlgatloB
and Dean Curry's stataasnt ahout payrolls, this is not the case*"
He ■
■•di stir.i'i
•xtcfeasri. siiliMiiXD »¥ totals"
"•TOliWSl* ,X»TaOT! ^8»«««'*
iSeJtaHK;
;ap ^0 s...c;t>*,i.
inoia,')lr4ro'3 aril* ». ^fcl -ftfi,*
3r
•«Aa ^lui
.X ijoiv
«X*i^UC<0>
•. ■■19X1
" I O* ^ ■>
ttlt^ a«a *»i «i^» »fciaCXV"4 -"CC-t' «^'
-6«-
The petition «l«o ftll«g<»s that th« Intter of Januwry 23» 1933 >
was not signed by th% appointing officer and wae thernfore in
violation of Section 12 of the Act*
Upon the ox^l arguaont, counsel for petitioner eonceded
that pet it loner » to eufitain the judgment » must rely upon the oon-
ientioa that the notice of January 23 > 1933» was not in oomplianoo
irith Section 12 of the Ciril Berriee Act* ae the Director of Lal»er
io the appointing officer and the only one authorized under the ko%
to sake renoTale* The petitioner could not o1»tain any relief under
her petition filed under Section 14. Indeed the Conaiesion had no
po^er under that section to reeeire and not upon the petition* (Soo
People ▼• Aategt 360 111* 31» 35*) The Coraiaiesion vae fully Justified
in ignoring that petition and in oalling the attention of petitioner's
counsel to the fact that her rights had been detemined in the pro-
ceedings brought under Beetioii 12*
The Attorney Seneral o&Us attention to the fact that the
petitioner requested a he&ring under inaction 12 of the Aet) that
her petition shows that her qI&Ibl for relnstateaeat was based upon
the claim that her reaiOTal was oade for political c&uees; tha& the
Couoi salon held that she wan not reasoned for such oaunea* and "that
the action in dispenaing ^^ith the seryicee of Mrs* alters was taken
in accordance vflth the program of eoonoagr and retrenchment of the
Department f " and the Attorney General contends that petitioner cannot*
after such hearingt change her ground and now contend that she was
not discharged by the appointing officer. This contention must bo
■vstained* See the late case of People v* Cohen^ 355 111. 499| 50S»
whore the question inrolTed In the instant contention is fully
discussed and detorminod*
The Attorney Oeneral contends that as the petition for
MUldRnas was not filed until T?ebruary 2, 1934, the petitioner is
barred by laches. It is argued that the delay of mora than one yoajr
In filing the potltioa for mandamus Is inoxousablor and that "grea*
.^«
.N tx floi#»»« rfiif'
•C-'Ji.
ciiMx:-?'
^i i^d.
,,,;, rfc.. -^ *^««» *«« «** *^« '**^* ''^*' «^l«*iia«i«0
-7-
public datrlaent and confusion will result from th« granting 9f
the writ of mandaMUs in thl« ep««,» "'hlle thare In Tindoubtedly
aoiutt force In the position of the Attorney Oeneral, narerthelesfif
we do not deea It nactssary to pass xipon this contention. a may
say, howerer* th«»t the filing of the petition under Section 14
does not« as petitioner el^imet tend to exotise the delay.
The Judgment of the Superior court of Cook oounty la
rerereed, and the cause la reaanded irlth directions to the trial
court to sustain the demurrers of defendants to the petition and
to dismiss the petition for BandanuB*
jUDiaisyr hisvishsi;2) ahb cavse
mUASDED ItH DIKSGTIOHS,
SulliTan and friend » JJ.i concur.
•t[<-
.. ^{tifiBRB-iso iti Wf-»fc Son Ob t«
■.lit nam -*■■
■■«.-, H"i nj
^'f'-nrn*"
^/«'*^-''\
58422
CHAELSS BRSYiat et al«,
(Plaintiffs) Appallantsi
IDITA S. AUDBSV/S et al.»
Defendants*
CLARA DIhS-SCHMIDT* j
(Bef endeuat) Appellee*
APPSAL FROM GIHOTIT
COURT OF COOK COUHTY.
28 5 I.A. 591
MR. PBTilSIDBIG JUSTICB 3CAm.AH D!3LIV1!R1!D THIS OPIUlOU OF THS COURT,
In the instsust case a decree of foreclosure and sale was
entered on June 25» 1934* On Gepteaber 6, 1934| Clara Mersohmidtf
defendant (appellee), filed her yerified petition in the cause, in
which she asked t
"1. That the dscrea of foreclosure heretofore entered in
this cause be vaxsated and set aside f
"a. That the Order approving the Master's I.eport of Sale
axtd Distribution be Taoated and set aside;
"3. That it may be found and declared that the foreclosure
in this case is subject to the continuing lien of the note held by
petitioner. * * *"
On June 1, 1935, Judge Rush, who did not enter the decree, entered
an order, upon the petition, that the decree of foreclosure "be
vacated and set aside "and all proceedings taken subsequent thereto
are held for naught." Plaintiffs appeal from that order.
The bill was filed en April 1, 1932. It was aaended on
lEay 4, 1932, by making Clara Dierschmidt (appellee) and Heroan
Pallas parties defendant to the suit, and Louis D. Glanz, co-
complainant. Appellee was duly served with summons on liay 12,
1932, On June 14, 1932, another amendment was filed to the
bill. On July 12, 1932, appellee was defaulted and the cause
SSi^S
,.X« is JL HO
TiBoaio aom. JAE<i^
1 ,»*n*"s&n9^9G
X\*^ ©A*! G€)wk ■ ,TaDffloa.>sfiG aha^o
,*tiiiaioat£©xa si&l'O jM^I ,,') j:i..tf£iciqec £sO .^^^I t2£ anal, no bs^f^d'n©
as tsauiso oil;; «x fioi^iieq fe©itiiC'V xsri belli ,(©»lX»qq«) ^jnebnelsfc
«be2(a£ s^jis lioJUlw
9X«S5 iO cHoqsT s*o:9rfai5J,{ ari^t ax£ivc^q.q4S tsbiO ©iiJ ^jsjdT
■^.; ,. :> noiX _; -ififf oi- io^'ldua- si 9a,«o sxilj tit
bB-x'^ine t9»io&b ©x£c) f/jiae ion bib oxiw tilawJi sgbwL tflSt'X tl dx^uI, nO
atf atixaoXosio'i lo es-^ioab ari^ ^stii lUol^iJaq srfd^ noqjj «tobto res
o^Jetarf^ (tnesfposcTuR nn3iw.t aanibssoo-rq XXfi fitts** ©bJraB if>8 bm? boifiajBV
• lebTc '^n't X.'^sqq.o fstli^taljtX'u. ".Mj^jEn 7.0I bXerl «i»
no bebflSBUi asw il .Sf.8X «X XitqA «o b©X.t^ sfflw XXlrf ©rfJ
flaonoH bne (eelX9qQB) *biauioei8ia BuraXO j-iaiitam x<f tSiSCX ,^ t-sM
-•Q tSfl^XC .il Biueu hfxB t?iwa axiiJ 0;^ ;JxiabD«>l»ft soi^rusq •aXXo^
,SX T&JBAi no anomaxwa ri;ti?/ bsT:c9a y.Xwfe 8jw eelXeqqA *ia&aisilqmoo
edi 03 heltt B*nr ^fnestbaeiaa iisxi^Jofijp «S;S©X « i^X enwt «0 .SCtfX
e«it«9 ad^ biu &«^Xub1&{) saw 9»XX$)qq£ t&£6X i^l xlMl aO »lll(S
was referred to a master in chancery* On March 21, 1934t an
amended and supplemental bill ^as filed making all the defendants
who were named in the original l3ill and the amendments thereto^
defendants. The record does not eho^v that appellee was ruled to
answer the amended and eupplernental bill. No appearance nor answer
was ever filed hy appellee in the cause. The hearings before the
master ooBuuenced on Jvily 13, 1932, ajid the proof was closed on April
13, 1934* On October 19, 1932, appellee testified 'before the master*
On May 11, 1934, the master notified all counsel in the cause, also
John I. Owens, one of the solicitors for appellee, that his report
had been prepared and that objections might be filed thereto at any
time up to auad including May 13, 1934, at which time he would take
up and dispose of any olsjeetions which might "be filed* Thereupon
appellee, through her solicitors, Owens & Owens, filed with the
master the following objections to the report*
"0BJ12CTI0HS OF CLARA BISRSCHBIDT 0
CHS OF THE DSFSamNTS HSKSIH*
"Now comes Clara Dierschmidt , one of the defendants in
the above entitled cause, and objects to the report of Isidore
Brown* IDaster in Chancery, for the folloiwing reasons*
"1. That the tranecript upon .'/hi oh said Master has based
his report Ira not the true and correct transcript of the testimony
taken before said Master*
"2* That the Master is not in possession of all of the
original exhibits in this case and therefore the :;^ster erred in
making a report wherein he treats copies of inatruments to the
same effect as though they were the original documents*
"3* ?or that the Master erred in allowing the complainant
to file a copy of a document ^rhen the original of such document is
not in possession of the complainant*
"4* For that the Master erred in finding that the com-
plainants hav3 a first and prior lien upon the premises involred
in this cause*
"Respectfully submitted*
"Cleora IDierschmidt*"
Thereupon the master formally notified all of the counsel, also
Solicitor Owens, that after due consideration of the fiLferesaid
«oas3iQili' aJr-^fibaoBiG ed* fenii IXia XjBfiigiio ©rfi ax bQOi'.a ©t«w oifw
.^ hstist &aw esIXeqqa iBriJ v?ori3 ion saob btoost sulT taJwjsbcrelsb
:s5r;ru» Hon ©one'Jisdqqa oTi .XlicJ li-iia&x^&£q(iuH fcns b^boaai* sxii ^»wans
9h.i 3-Lo'i&€ B^iisioti sxfT .®ai/jBO srfd ai a^XISfrq.s Tjcf bsilil -t&ve a^-n
Hti^ no W3oXt> «»9w 1t©d*icii &sii btm t££ex etoX "cXuX. no bstonsiaao© i:e;*aBJB
>*asffl sfC4 ©tre'l^rf 6»itf*B5Q# 9©IX?»qqja <SCtI ,f^X :co€f«^oO nO •ifiCX ,1
>aXa ,6aup.& eil^t Hi- Xvrsm/oo XIs fesiliiton tBieBsa oAi «M9X tXX x^ «0
^€Hjfcit eiil (^ftXiegti-h.- mo't a-ro^ioxXoa nrl^ 1o sno «enij\70 »:■: nrioL
Srae *e ei^i-ssiS^ bslit -^tf *j^U« atTol#o»ttfo iari^ bos fes^sqeTcq nsscf b.p.r
fioow?r?ffT .helil «: d" id'^Jsn fioiriw aaoi^^ftefo 7;nB 1:o s>coqaife hoe q»
t ,fre-«srO ;i?, snsrO «8ic. teri rfsi/otri;? ,©»XX»qq[«
«^\. ....... ..-..-.. . . iKOITOJ^fXSO"
.1IS>MI c.' Q SHI: '^0 EHO
ci e^i 5xi* lis s«o «- jsxbIO eacieo woTJ"
«T0' ^ .- ^uqo'x ail^ 0;^ ai^ ,,«- ...... t&B&«o ijfeXctiJfio svoo's edi
bCBwcf «ja£i idiaail blaa ifcifltw noiiw 3^iiou£sigi;t ^£i i^^ tX*
tii tie7.^e 'xc?- "'.^ 9 id s> tori;} bix** se^o '^^ '"' •+>^' -•- 1 ^ : ; t.^
oi: ^^ ...-.--..-.. -.^ bests ••;,•*••/ -;-•-• ^ail^ rtot •£"
ex . '.. #£ii :- b B lo xqoo B ©Xit o;)
. ."l-ftBHi j.;j.eiii(; "* rr. tttae&BO.:: * .' ■")«
bsxxa ;' : .j lo'S ,^"
j ;." ne.l"X J t. £ evfiii s^nanlaXc
.©airso a id J ri
« bfc o o iMclL'o xXXi/l J 0 - qa ©; ''
" , « 1: iairioeTGlG. axsXr-''
oaXs «X©uru;oo 9ii* lo XXfi bttitXion ^iL^mioi i^iasitii ©xk* i-oqu^i&tlT
objections "and after hearing argiiraonte of counsel in respect
theretOf" h.e ha.d reached the conclusion that all of the objections
should he overruled* and that they were accordingly oTerruled.
Appellee did not file exceptions to the master's report nor did
■he take any steps to iiave the chancellor pass upon her objections
to the report. ih&t purports to be her petition (filed September
6, 1934) is as follows*
"IN TH3 CroCUIT COURT 0? COOK COUITTY
"CH/IRI^BS BRSTSR, et al )
-Ts- ) IlSr GHAlTC"/iF.Y
3DNA 3. MTDRmiS, et al ) HO. B-239256
"PETiriOT
"Your petitioner > Clara JJierschsiidt » represents to the
Court as follows t
"That she is the owner of Hote 'W in the sum of One
Thousand Dollars secured by the Trust Deed being foreclosed in
this cause}
"Your petitioner was made a party defendant to the Bill
of Complaint herein and on April 1> 1932 » an amendment was filed
subordinating the foreclosure to the lien of the note held by
your petitioner; that your petitioner thereupon allowed the bill
of complaint to be taken against her as oonfesscdj
"That your petitioner received a letter on August 12^
I934» from the Honorable Isidore Brownt Master in Chanoery» ia
words and figures as follo-fl's:
"'This is to adTlse you that I have in my possession
the sum of |212«67> being the aiaount due your client
(one of the non-depositing bondholders) in the case
entitled •'Breyer r. Andrews"! Circuit Court Ho. B-&39256'.
"That a sale was held in this cause on July 24, 1934, at
whioh the property involred in this cause was sold for the sum of
Nine Thousr^ind Dollars and a deficiency taken of T-wenty "Sight
Thousand and Fifteen Dollars.
*'That your petitioner filed objections to the Master's
report herein but received no notl'^e of the presentation of any
decree herein nor did she receive any notice of the presentation
of the iiaster's Report of Sale and Distribution.
"That upon cheeking the records in the Office of the Clerk
of the Circuit Court of Cook County youx petitioner ascertained
that the complainants herein filed a supplemental bill without
notice to your petitioner; that your petitioner was not served with
any summone under the supplemental bill; nor given any notice that
proofs were to be introduced uzider the supplemental bill; uhat all
of the proceedings taken in this cause subsequent to the time when
.&s«Xirrrr6TO yX:^ai b«ooo,« »*£»« -^jariii j..5j-ij i)fli^ , f>©Xii-Ttr:>vo eef Bluofljr
' iij ton v^'iocjo^ a 'tt9?K«fii ari^ ci snoi iqeoare alil .en fciib JWlIaqqA,
I'amioo woo '^o thjoo -.
Ic i9 th-
iiO«
ao ixisoO
9ttO 1:0 sura sri;; nx *V* eSoM to 't&tfvo a£i ai ©ffa iJjatfT"
Ills, iiiii o3 icij&bRQ^b -^J-T^; « ©fcjKS e^;'«r x&rcoi^irfoq «uo..'
£;■■■.
ia ,W5«?X ,^8 ■?;X
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rfoiriv
^arlit editor.
:Xfl *«rf3 {J
;XX1J ■
L CXii? lo
10
-4-
the aaended TdIII of complaint was taken as confessed against
your petitioner was a fraud upon the rights of your petitioner
and an attempt to prejudice the rights and clal» of your
petitioner herein*
"WHERSPCfflE , your petitioner asket
"l. That the decree of foreclosure heretofore entered
in this cause be racated amd set asidei
"2. That the Order approving the Master's Report of
Sale and Distribution he raoated and set aaide|
"S. That it may he found and declared that the fore-
closure in this case is subject to the continuing lien of the
note held by petitioner}
"4. That such other and further orders may be entered
herein as to the court shall seem meet and just*
"CLARA DimSCHMIDT
*3y S. 17. Miller
Her duly authorized agent*
••STAT3 OF ILLIHOIS
COUHTY OF COOK
jss.
"3. v. MILLSR being first duly s^vorn, on oath deposes
and says that he is the duly authorized agent in this behalf
of Clara Dierschmidt j that he has read the above and foregoing
petition by hi« subscribed, knows the contents thereof, and
that the sane is true ia substance and in fact*
"S* W* iULLSB
"Subscribed and s'iiforn to before me
this 6th day of 3ept ember, A. D. 1934.
" "A* L* Gohxxt i:Totary Public
"(sasAL)"
In the brief for appellee counsel state that the petition
is not a fflotloB in tlie nature of a writ of error coram nobis, nor
OBe in the nature of a bill of review; that "the petition of defend-
ant was filed to vaeate a void decree* * * * The trial court in
tlds ca»tt vas without jurisdiction to adjudicate the rights of the
defendant when she was not properly a party to the amended and
supplemental bill of complainti" that appellee? after being defaulted
under the original bill, was not bound to take notice of the filing
of the amended and supplemental bill; that her rights were fixed
at the time the decree pro confesso was taken against her* Appellee
^^.
lo nifiXo
Site: ':o af>i:I - &^jiso &iiii uX ©lueolo
< x^nQ's: : - •■■'" -■'"-•■ -*'-:
• jflO-^:
,aaj '''^-
« < «
an: ■ • ■ ^^
Ss©
XX»4I<fA •'Xoxi iaiii.Bia*i iii/«V)i 4**i.v q<iaclnpo o.vcc;' e>c xoc c 2:1:^ i;;:iri:: ^r.v j-
-5-
w&s the owner of prlnoif£:l note '*W»** ancl Hexnan Pallas was the
owner of principal note *'£"• Louis D» Olauz wae the trustee
under the trust dead in questloa* The amended ^ill contained th«
allegation » **sold * * * subject to the continuing lien of said
trust deed to Louis !)• Glanz securing notes K and W*" Upon the
oral argument it wps conceded \>y appellee's counsel that this
allegation accorded appellee a priority to which she was not
entitled. The amended and supplemental Isill simply corrected the
error in the amended billt and appellee* upon the oral argument f
concedes that she lost no rights Taj reason of the correctlont The
amended bill* which gave petitioner a prior lien» improperly pre-
judiced the rights of the owners of certain of the other notes
secured by the trust deed* The argument that upon the filing of
the amended and supplemental bill the jurisdiction of the person ef
the appellee was thereby lost and that to again obtain euch juris-
diction it was neceasary to take out a summons and serre the same
upon appellee f is without merit*
"It is a rule of chancery practice that by filing an
amended or supplemental bill all previous decretal orders are
Taoated and the defendants may answer the original and amended
or Bupplem^tal bill* 3uch an amended or supplemental bill is
held to make a new case and to authorize it to proceed as thoxigh
a decree pro confesso had not been rendered* The defendant in
Buoh case has" a right to anarer both the original and supplemental
^iH» (Sibson T» Reest 50 111. 383.) The effect of amending the
bill after a decree pro confesso is stated to be» to render the
preyioue order to take' the bill pro oonf eeso inoperatlre even
where the purpose of the amendment is to rectify a clerical error*
(1 Daniell's Oh. PI* ft Pr* (6th Am* ed.) ♦425; Weightman r. Powell »
2 DeG* & S« 570.) The effect of amending the bill after a decree
pro confesso is to set aside the default without any order of the
court* (gjl^sen v. Rees» supra; Lynd on v» Lyndon » 69 111* 43;
South Chicago Brewing Go* v. Taylor, 205 id. 132; Ruppe t. Glosi
IBa'id* 80. r [Qdell Y. Levy, 307 111. 277, 281.)
''\7here a defendant is once brou^^ht into couri he la re-
quired to be present and take notice of every step taken in the
progress of the cause. (Mix v. Bef?ch, 46 111* 311.) /.ppellant
Arnold was compelled to take notice of the fact that by leave of
cotirt appellee might make any amendment necessary to sustain the
cause of action for which his suit was intended to be brought.
By the service of summons he wns brought into court, -/here it was
hl« duty 1^0 be anu appe«ur until the case was disposed of, and ho
«ilJ noq ' ->CJ8 :i 89*ok sfliiKi^aE &am£^ ^€i 9 lathi oi baeb ^RWsi
aidi i^t tBiRnsj ilOKi^s x^ fesj^trao-; : osiargr-s Lute
^Qa aBW ©iCa no iff 'V f?.-^ r.itio^Jtiq, £ 6^Ll&%q,s;. habTOooj? noiJaasIXa
to sjiilJtl ^a* noqw *^xl* iri&msJh'^.^. sxlT .bs^b *3yi^ ^£{;f vd" bsttfooe
be ■ etlo 'r . v
si lIxcJ ^ .->ixc; l.iiii •?
XiSJ -a
aii.' inSb: , , . .ilxcf
.■ -.;♦■? '-* ""tJfi f Cfcrf
^^ X.-
Oil; io 1
-rr. -ri or! ''tjl'oo nc^ri? ffl;^tf0t:«f f^pffo f:£ *tti« ?>«■>% ':-b o ■s^'^ri^v*'
'!:3
•if bflJB «10 basoqslft aew Muso esd;* Xx*njj i:«OQ>i*3 ^ne- ©cf oj x-wL »i<l
-6-
wae entitled to no further notice or serrice under the practice
in this State. (Hiehoff t, ireople, 171 111. 243.)* (Rttppe t>
Glos, 251 111. 80, 82.)
The proper practice upon the filing of the amended and supplemental
"bill was for appellants to hare had a rule entered requiring ftppell««
to answer the amended and supplemental bill. This iras not done.
But the failure to do so did not affect the court's Jurisdiction
as to the person of appelle«. /'hile neither appellee nor her
counsel ever entered an appearance in the cause, they took pari in
the hearing lief ore the aaster* The only ohjections filed to the
Blaster' B report were those of appellee* and after they had heen
overruled they were abandoned. None of the four objections inter-
posed has any bearing upon the question of jurisdiction, although
the amended and auppleaental hill was filed more than two months
before the filing of appellee's objections to the report. The
transcript of the eyidenoe ahows that because of the filing of the
amended and supplemental bill plaintiffs deemed it necessary to
re-offer certain evidence. The master's report refers to the
amended and supplemental bill and concludes that the allegations
of the same have been proven. It appears, therefore, that appelloo
was fully apprised of the filing of the amended and supplemental
bill, and yet she took no steps to answer the same. Indeed, she did
not see fit to even filo an appearance in the cause*
It will b« noted that the petition of appellee is signed >
**Clara Dlerechmidt By S. W. Miller Her duly authorized agent,**
and the affidavit in support of it is signed by 3. W, Itiller, "the
duly authorized agent in this behalf of Clara Dierschmidt." It is
somewhat difficult to understand how this agent could swear to
eertaia alleged facts that are set up in the petition and upom
whieh appellee relies*
Appelloe contends that because appellants made no motion
on oi r- ■' ' ■'■^^'■^
70£ . :■> tsoxe
Xl6q?I-« ^l-iiuci-'i betB^tii. v-ri oJ a ix!c«XI»<iq[s %9l »am M
ted ion 9©J[X©«iq:a tsiUiaa ©XXii^ ,s»Xi©«Q.« to iiQa-f^SL «1^ ©^ »*
Ki l-raq ^co:f X^^fi- cOutU^- oiwXfl®%^ '^ ■■■ ' '''
«. ^ «.,-ii -.-Q61 ; . ■ ' ■ .i'^ x",tn9a9Xs4ae on« be^ne-jse erf*
Bif;tjn:os ow* fii?xi* 9-^obi ■ —
a„ox*..T,eIXB .ri;^ ;^.^.^ ««^i«X.nc. to XXM Uii^^mm^^ fc^- ^«^na«B
.,j e^.eJ ^a ^9X &tt® «IXifi
eoncT.^r-
c •'
-7- %
to etrike the petition in the trial court they cannot question
its sufficiency in this ooxurt* Thsre is» of course* no merit
in this contention. The petition did not set forth any t^ounde
giving the court Jurisdiction to vacate the decree. It uras
therefore a nullity » and the question of the lack of Jurisdiction
can he raised at any tine. (See Johnson v. gel eon t 341 111* 119|
121.) Where Jurisdiotion does not exist it c-<?nnot he conl'«rrOd oron
hy consent or aequisseenee. (Miller r. Illinois Cent. R# Co»».
327 111. 103 J Larooa t. Kahn & Co,, 322 111, 147 1 Wiehard r.
School Direetorai 279 111. /pp. 333, 336.) Upon the oral argiment
oeunsel for appellee n&s obliged to take the position that the sole
purpose of appellee In haring the decree vacated was to enable her
to question the amoimt of attorneys* fees allowed hy the master and
the deeree. The master's report reconunended that solioitors' fees
in the amount of f2,500 he allowed. None of appellee's ohjectiona
to the master's report questioned this recoiamendation. The decree
follows the Blaster's report in regard to solicitors* fees. Appellee
does not attempt to argue any of the four objections made to tho
report*
App^lee'o petition was predicated* apparently* upon the
theory that complainants* in their procedure* had been guilty of
fraud upon the rights of appellee. She has been foreed to abandon
that position* and the contention as to lack of Jtirisdictien of the
person of appellee le now raised. There is not the slightest merit
in it. Had appellee appealed from the decree under the record in
this cause the decree would have been affirmed, v/e cannot understanA
upon what theory of law the chancellor regarded the petition as
suffioiomt to vacate the decree that had been entered by another
ohancellor months before*
Appellee has filed a au>tion in this court for a rule on
BJtia*0t>j -^s dire'
*aeEu;gis X01O ©rlJ noqU {.fl6S « : , , ;'S; ^i^st^o g os? -liCE^XQ 0::
8HOX3o9r,c ' o sr'ol'ff .b&woXXs ®^ QOrl^ ' ,tnifO!'^'^< ©da rii
9910; ^- .nsi^rai?':. bejMOio ' . 3di tti
osIXt»c:q-n .ass's: 'prjco, 0.^ frTr^:?,r.T r.r Jiot. ' > . . roXXolC
.lX3(!fQj3 to mjaTf»c
|>rta*aT:sf>«« *ofln«o . v«d Wi/owf &©T99b »/ii saw-so aid;
8S noltfi.'i»q eris bsbi^ssT -xoXXsomirfo »jS* wsX ^o Y^osrl* Sfjsuiw noqx
• etolffitf exSJWow toXX«onsri<
n© eXutt a aol ciiaoo aM3 fii aoktom a b^llt a/isf ©«XX«jqq:-A
-8-
the attorney for appellants to show cause why he should not be
held In conteMpt of court for misquoting the original record in
the shstract of record filed in the cause. This motion will "be
denied.
The order of the Circuit court of Cook county of June 1,
1935f that the decree of foreclosure entered in the oause on June
26, 1954, be vacated and set aside and that all proceedings taken
subsequent thereto are held for naught, is reversed*
OF.WT-. OF JTJ?rg 1, 1935, THAT DECRPIB OF FOKICLOHTJRB
EMTBIBSD JJJSE 25, 1934, BE VAC/tTED AND SST ASIIB
AlTD TMT M.L P!10G?1 roiIJGS '"AES'IT SXIBSSOXn?lSrP THSRETO
AEa mix FOR naught, reversed.
SuHli^an . aad Friend* JJ*, coaouTtt
• focstsvr :o- &Xf" . fl<5fff)«ed'ui
.•?■■.
*'jb;3«c: .. ■ ? ^£rXlll
38433
R. £• HAYwARO COKPAHYf
a corporatioBf
Appellant »
THB LUliDOFP-BICKlirBLL
COMl'ANY, a corporation,
Appellee*
\
APPEAL FROH IIDKIGIPAL
COmT OF CHiaiGO»
28 5I.A. 591''
MRt PR13SIDI3IG JtJSTICS SCASLAJf U)aiY3PBD THE) OPIHIOIT OT* THR COURT,
In a contract action tried by tlie court without a jury
there was a finding and judgment in favor of defendant. Plaintiff
has appealed*
Plaintiff's statement of olalB alleges that on or about
May 17, 1934, plaintiff and defendant entered into an oral contract
wherehy plaintiff agreed to furnish to dsfendaat certain lahor and
materifiils in the installation of ventilation equipment in the Irish
YillagOf that was located in *A Century of Progress TSxposition,
Chicago," said labor and materials to he furnished and the vork
completed on or before Hay 25, 1934; that subsequent thereto plain-
tiff and defendant orally modified the contract whereby plaintiff
agreed to furnish to defendant further and additional labor and
niateriale in the installation of the said equipment, the labor and
materials to be furnished aM the work completed on or before May
S5, 1934 1 that defendant agreed to pay to plaintiff for the afore-
said labor and materials the sua of $2,496; that plaintiff per-
formed all of the terms and conditions of the contract as modified
and furnished to defendant all of the labor and materials on or
before May 35, 1934; that, although often requested, defendant bas
C5^&
imm mm tiAS-i^t^
t ^nj3 II dqq A
taoi ^'.fi'ioq-xoo b ,niA'IMOO
Hoim
cKiai
»&sXB9qq^ axirf
taoiiiiBoqj^S eeeasox^j. Ito '^tu^naO A*" ci fea^fnooX saw tf&iii ,©8«XXiV
I'iidnifiXc;; \;<i©i • >* hs-iljtbow v.XX,krxo JaflbnwtoL i^
baa a«d«X 9iii t^nsmqiijpe bx^e oiia Icj fiai ;?«XXfl*afli erid fli aXwlis.'^
': ■ ' tXMl :'n.n -co; - : -^ . , ..;
failed and refused and a till fails and refusas to pay to plain-
tiff th» 1-2,496, or any part thereof. Attached to the statement
of claim is an affldarit of claim. Defendant's rerified affidavit
of aerits is as follows J
■C. M, JTorrls, being first duly av/orn, on oath deposes
and says thst he is the Vice-President and duly authorized agent
of The Lundoff-Blcknell Company, defendant herein; that he has
knowledge of the facts; that, he verily believes that said defendant
has a good and meritorious defense to the #hole of plaintiff's olai«,
and that the nature of said defense is hs follows!
"(1) That on, to wit, the 28th day of March, 1931, the
defendant, as general contractor, and Irish Village Corporation,
as owner, entered Into a certain agreement in writing, wherein
and wherehy the defendant agreed to construct for said owner the
Irish Village at the 1934 Century of Progress; that it was agreed
that the owner would pay therefor the total construction cost,
and that said payments were to be made as follows, to-wit: one-half
of the total construction cost on or before May 25, 1934, and the
balaaoe on or before August 15, 1934*
"(2) That thereafter the plaintiff and defendant entered
into an oral agreement whereby the plaintiff agreed to furnish
labor and materials in connection with the installation of renti-
latlon equipnent In said Irish Village, and said Tilaintiff agreed
that the defendant would be liable to the plalnti'^f for the cost
of said TPork, labor and materials as aforesaid only if, when and as
payment therefor was received by the defendant from the owner
aforesaid.
"(3) That thereafter on, to wit, the 25th day of May,
1934, plaintiff f?s sub-contrRctor cjid defendant as general con-
tractor entered into a certain agreement In writing (a signed
copy of which is in the possession of plaintiff) wherein and whereby
it was provided, among other things (addendum - Art 15) as follows:
"•That the Contractor agrees to pay to the Sub-Contractor
the total amount of the sub-contract price of One Thousand
Eight Hundred Thirty-Pive and no/lOO (1^1,835.00) Dollars
if, as and when received from the Owner, It being understood
and agreed that all pajnaents made to the fJub-contractor are
conditioned upon such payments being made to the Contractor
by the Vmer.'
'••The sub-contractor shall receive as his share of the
payments made by the o^ner on the herein stipulated dates
such proportion of the funds made available as the amount
ef this sub-contract represents to the total amount of the
general contract.'
"(4) That pursuant to the agreements aforesaid the plain-
tiff furnished smd installed the ventilation equipment as required
in and by p.' id contract.
"(6) That the defendant has heretofore recalved from the
owner upon the construction contract aforesaid the agtjregate sum ef
$1,265.00, of ,vhlch the sja'rjve payable to the plnintllf was the sum
Of, to wit, ^14 .39, which sua the defendant on October 10, 1934
. '^...;, cj., r ir;;. ■ rf^i^ ^firic* r:r
»r' ; (
: Li c t » i s« t' «* «
nisi; t ^^ yt^ ,ns
erfrt hfL^ ,^C^L ,3SI ^e;^ s-o ^^ ^ _^ ,^ ^^ 90iX£.
,_ :^ s-d:^ 'tc r^ ■
Ef
f eAi b©l
-3-
sent to the plaintiff, and vhioh bub the plaintiff refused to
receire and accept*
"(6) That the defendant is not indehted to the plaintiff
in the SUB of $2,496.00, or any interest upon said sum, or in any
sum whatsoever, other than the sum of ,14.39, vthlch the defendant
has been and is now ready and willing to pay to the plaintiff,
"C. M. Iforris"
C* M* Horris, rice-president of defendant coapany, testi-
fied that "Mr. Curtln ol our office handled the transaction with
plaintiff company relatire to their ventilating work at the Irish
Village* Mr* Curtin was Chief Estimator of our ooapany and also
Purchasing Agent for this job** Defendant concedes that WilllaM
Kuechenherg, superintendent of plaintiff company, and P. J. Curtin»
former chief estimator of defendant company, conducted the nego-
tiations and agreed upon the terms of the oral contract. Kueohen-
"berg and Curtin testified that the oral contract contained no con-
ditional payment provision* and certain documentary evidence
corroborates their testimony in that regard. The following is a
letter of plaintiff to defendant, dated the day after the making
of the 0X91 agreements
"May 13, 1934
"The Lund off -Bicknell Co.
100 North LaSalle Street,
Chicago, Illinois.
"Attention: Mr* Curtin
"Gentlemen* Res IRISH VILLAOE - #460
"We acknowledge yours of May 17th, regarding the above »
and thank you for the consideration shown us.
•T/e confirm understanding with our Mr* Kuechenberg, as
follows:
"50;^ on completion. May 25th, 1934,
Balanee, August 15th, 1934.
"Yours very trulyt
"R. B* HATWARD COMPANY
By (signed) R. B. Hayward
"RBHtiB"
I>efendaat did not answer this letter. An invoice sent by plaintiff
t < . ( , ...
• iij;>;iij,^l;i siiiv oi T^q j^<j' ^fuXXliV oris 'i,ti^-2'i x:qv, ix ijxiii iii-sU -i^xi
©on© r £«^iforfcr d'ns.fflxoq JEaxyoi^lb
.: ■...nxroIXo'i: ■ . ....... --cfBToeic-iioo
. , XjPto srlo 'io
.a«f rr^offa KoJtlRTfS'Manco sri^f tco^ t/o\; jir: -■
"ffsHfiH"
-4-4
to defendant contains the foXlo.ving4 "Texua of p&ymant., 50/« on
completion* Hay 25, 1954* Isalance* august Iu» 1954." it also ba&rs
upon its face tho approval of the auper intend ent •! defendant* It
Is conceded by the affidavit of merite amd by the testisiony of tho
vice-president of defendant company that "the ftork of plaintiff
company was completed on May 2&t 19^,** as required by the contract*
The contract between defendant and the Irish Village Corporation pro*
vides that "half of the total cost of said ivork> including actual
co6t» plus ten per cent (10^) thereof) shall be paid by the Owner to
the Contractor on or before May 2S» 1934 »** and further provides that
the entire swount due under the contract shall be paid on or before
August 1$,1934, The Irish Village Corporation defaulted in tho payaent
due defendant - approximately |.55,000 - on May 25, 1934. Thereupon
the vice-president of defendant company sent to plaintiff, through the
mails, a letter and a "Sub-Contract,'* which latter purports lo bo an
agreement between the parties covering the work that had already boon
completed by plaintiff company under the oral agreement. The "Sub-CoB-
traot" is a lengthy one, partly printed and partly typewritten • One of
is
the many terms and provisioas contained therein^the folloT;ingj
"Addendum*
"ARTICLB XVj It is further understood and agreed by and
between the parties hereto, as follovst
"That, the Contractor agrees to pay to the Sub-Contxaotop
the total amount of the suH-oontract price of One Thousand Sight
Hundred Thirty-five and no/lOO (|l,835,0Q) Dollars if, as and when
received from the Owner, it being understood and agreed that all
payments made to the 3ub-ContPaotcr are conditioned upon such
payments being made to the Contractor by the Owner. * * *«
The letter reads as follows i
•♦May 25, 1934,
*R« B» Hayward Coaipanyi
1714 Sheffield -wenue,
Chicago,
"Oentlemeni- Re; Irish Village - #460
"We are attaching hereto four (4) copies of sub-contraot #460-49
iri;f 1» y.ae0i^;«i,.,^ uiii x<^ fo«« a^i-xam 'io ji^jsbiii^ arid xc babaonoa ai
-^ttcifloo a£;r xtf i>«.ti^;;»« a« ".♦oil tea tcsM ijw JbaJsIqaot) a«ty x«sqinoo
»25Hi:sf<:)XXo"i 9iiv\^iii9-.t??rii I>©aie^ft0« ajotcieivoi^ fees 8«i:9J> Y;iJBm 8Xi#
to Jojroctss X«ioi i^di
■■■--'..■: ■•-■"■ -- - ■■ r.i;^
lawoXIol tin eb.a©T t©**6X ei!T
-5-
corerlng the VHINTILATIO!^ for the above named pro j act,
"If the teras and oonditioas ae outlined therein neet with your
approvalf please hare all four copies signed lay your President,
Vice President, or Treasurer, hare the signature witneeeed and
your corporate seal attached. If you will thsn return all four
copies to us we will affix our signature and return one copy
to you for your files*
"Please note particularly ^ rticle IV which instructs you not to
assign nor sublet any part of this work without Tifritten approral.
We uuat insist that these instructions be adhered to*
"Tours Vary trulyj
"THE LUlsn JOFF-B I GiarJLL CO.
By (signed) C. M. HOREIS
"C. M. lorrie
Vice President
"nr
iBOl* 4
#460"
The president of plaintiff company, without reading the "Sub-Con-
tract" carefully, signed it and returned it to defendant company.
He testified that he did not notioe the conditional terms of pay-
ment stated in Article XV until June or July. Defendant rtceirad
the signed "Sub-Contract" from plaintiif on May 29, 1934, It then
signed it» by its vioe-president, and sent to plaintiff the follow-
ing letters
"ilay 29th> 1934.
"R. B. Hayward Company,
X714 Sheffield Arenuef
Chicago, Illinois.
•Gentlemen*
"RBa-IRISH VILLAGE - 460»
"We are sorry to adrise you that the Owners of the Irish Village
Corporation have defaulted on the 50;:^ payment due us under our
contract on May 26th# 1934, Inasmuch as payment to you on your
contract with us is contiaagant upon the receipt of these fxmds
from the Owners no payment can be made you at this tine,
"We have taken steps to protect your interest and ours to the
fullest extent possible. As soon as the exact procedure to 'be
followed is decided upon we will advise you further,
"Yours very truly,
"THE LUirDOyp-BICK¥r;?LL CO.
By (signed) CM, Norrle
"C, M. ITorrie
"CLTJ.C." Vice President.
■ ■■■■'* ■'^lO'tq, J>t.ii«ii (Pvpd*^. tii:^> TO> KOJ^fUilTIIlRy .OfI# 3BX19VC0
:£.'. - • - ':■ ' - • ■-' . '-■■ ■■ . W
■iijoy.
«vlj.f.
t^ •Xofi£
,x;pt 6«ot«J ,-^XXijl9i«o "JostS
n-.- •.- . r Xq moil "d'OB'SiuoO-cfffS'' Jbs«T,ij3 9tii
• Mex txtuvK x-^"
Ted^DX 3«i
jnetaeX^nst)'
►oo
•*•
9di OS otq Ow nqooft xj-ix/i^ ersif •W*
••«a«xi£0"
-6-
Plalntiff** theory of the cas« la "that the Tontllating
work was dons on dofendant's direot proaise to pay under the oral
contraot» entered into hetw«en the partloot The contract price of
|2»496 is admitted as is the fact of tha work heing fiaiy coapletad
prior to the execution hy either party of the i»ritten contract in
which defendant's liahtllty is made conditional. On this premiee,
plaintiff olaiaa the written contract constitutes a new undertakiag
of the parties, and must therefore be supported \j independent or
additional oonelderatioa}" that it is not disputed that there was
ao eonsideration for the alleged written contract; that it is
elementary law that consideration for a contract must he pleaded
and proredj that defendant failed entirely in this regard and that
the trial court erred la overruling the motion of plaintiff » made
at the close ef all the evidence* that the alleged written contract
1»e excluded* Defendant concedes "that the plaintiff furnished the
vorkf lahor and material pursuant to an oral agreement, but alleges
that it was agreed and understood between the parties that tha
defendant would pay the plaintiff for the work only when, as and
If it receired payment therefor from the Irish Village Corporation*
the owner. * * * The sola question before the court is, therefore »
whether the trial court erred la reoeivlng in evidence the signed
contract of May 25, 1934* V7hether or not the contract was teohni-
oeLlly valid ^iker per se or as a confirmation of an oral agreement
is not material* Its value lies ia the light which it sheds upea
the true nature of the disputed oral agreement, and, whether yte
view it as a contract, or as an admission by the plaintiff against
its iaterast in this suit, it had undoubted significance;" and
argues that "the contract of May ^5» 1934* was the reductloa to
writing by the parties of the oral agreement previously entered into
and upon which suit was brought." In its affidavit of merits
L&no &di x: bnu \>-x._ ' neb sssw -.i'lOiv
SAW ©tdii? viirf^ be*«qai' "jjooiiBTsManoo lje«olJhb&fl
ei: i I -•.v;'.>^ ; i'-j.-.'XJiroy 06J;fi:tw ud^sllf^ ad* "iol floi^s:£t?bxenoo on
c , . ■ . .. ..-.:.. cr :,,..._.,„, iW
iiiain'::.; :_ trier J-:5ii.r" ieuoon'-o 3n.os^0p^-ei.- , n^^i/i ■:■- '-a
bos ;:3 tfisriw ^iflo '^.UttijBXq «fiJ "^js^I bXwov? ^ixafena'.
tnoi^BitxitoD s^jcXXl'. t :3:olsTSiCi itiem:»(L &»vi909i JJt il
, ijTetei^ild »aJ: itisoo erCtf oiolati" oojt^a®«(^ eXco 9sit .t©nwo »£l*
J-noBwexa* Is'iO fiB le aoiJ-JMBtileoo > ^2 ''^^<? t«iil*A» bjtifiv \:iXoo
noqu cfe«<ria .-^t lioijrtv ^rl',,iX »cC. nj- aeiX ©4iXr> ♦.C.<5l'3:«?;^«ia iosi al
tiaj: b^ ■ -iBVoirer-ci itv-mpciT^"^ Xi-*tc .rf -^nlcflTiw
-7-
defendant alleges that there were two a^eettenta» one oral and
one written f and that In both plaintiff agreed that defendant
would ^« liable to plaintiff for the cost of the work» labor and
materials only if i when and as pajrment therefor was reoelred by
defendant froa the owner aforesaid* At the oonolusion of all
of the e-videnoo defendant Boved "to exclude all testijKoay relatire
to oral sigreements on the ground that the contract was Merged in
the written agreement." The trial court reserved ruling upon this
notion* but in his opinion deciding the case he did net pass upon
it« It will be seen* thereforep th.at defendant has not been oon*
sletent in its pOEition as to the nature and effect of the so-called
written agreenent. In deciding the case the oeurt rendered the
following opinion:
"The Courts irow» it would serve no good purpose for thie
Court to take up the question of the truthfulness of anj witness t
Therefore* I am not going to go into the evidence at allt suffice
it to say that in my opinion I am controlled by this contract or
by this paper introduced in evidence and not by any idea of a
verbal contract by the parties. That was signed by the president
of the plaintiff company* and I must look to them for the burden* -
I will put it that way, if you wish* on which side the burden is*
And that* to ny mind* has been shifted to the defendant to such an
extent that I am inclined to feel that the paper negatives about
what the orijclnal verbal contract was* and that being so* I do not
think the plaintiff has made out his case by a preponderance of the
evidence*
"Therefore* there must be a finding in behalf of the
defendant.*
That the written document of May 25* 1934* cannot be sus-
tained as a nev; agreement is net disputed* and defendant is finally
forced to the position that the written document vreis "a reiteration
or confirmation of the oral a^eeioent of the parties*" lie have ne
difficulty in finding from the evidence that the oral agreement
between the parties eontained no conditional payment provislen*
and that the written document was but a part of a scheme of defendant
to evade meeting its obligations to plaintiff* evolved after Irish
Village Corporation had defaulted in its payments to defendant* The
«(»f!»
tSMhitsteh ijuii b^^-xh^ J.liitii^lq ri^otf sti i»iit bar. ^nea^iitw Mtt
« iO £
, J rxmae &*X9;« fie d- ;t 1 iw siiiJ
iHOiniqo jMJi«oXXo1
'- ii ^vroM :#xi?oO wit"
f-': I c :.?■•. u.- alii qjj f'sf^;^ oo' ff-itfo"
;, ->?^i ni i-^iii x&s oi ._
oifr
o;J « J'/
.6C
"iXjisriGtf nl s«ibni
^XakXI al jftsfonelofc fens «i&ujj\i£;i
on ovjjii 6'* *»e«xJxB5 »xfit lo ^.ruMa^'i^^ic- Liy^^o ^Uv .1.0 rfoiJ-flBrrituoo 'M
-8-
intent of defendant to oldtain an unfair adrantage of plaintiff
is obTioUB froB the undisputed faote and clroumetancee* If we
assume, however, that defendant's contention that the written
document was conpetent evidence and uuat he considered in deter-
mining the terms of pasrment under the oral agreement is correct p
nevertheless, we are satisfied, after a consideration of all the
facts and circumstances in proof, that plaintiff has prored its
case by a preponderanoe of the evidence*
The Judgment of the Municipal court of Chlcrgo is rerereedy
and Judgment will be entered here in favor of plaintiff and against
defendant in the sum of ^2f496«
JUDQMnSHT RSYKRSBD, AST) JUDdMSHT H3PvS IS yAVOB
OF PLAIHTI5T AM) AGAllfST D'^mDMH IN TIE aUll
OF $2»496«
Sullivan and friend, JJ*, conour*
9v II .39oniS^fl««afo>£lti fws.8 sd?>8lt hfftk}^?f ih&B sjl* affoit s»9J:vtfo si
j»iJU0J3os «. ' < '->nsi;:i'ii: txis ns^rtLlu'
58454
I>A?II) KABS, IVC.f a cor-
poration»
Appellant p
r*
SALES STIMDIATORS, IITC*,
a oorporatlon«
Appellee*
APPEAL PROM CIRCT3IT
) COURT OF COOK COUHTY.
! 28 5I.A. 5 93^
MS. PRSSIDIHG JUSTICE SGAHIAI BILIVSRED THS OPIITIOH OF THE COURT.
An appeal to rererse a Judgment for $209.02 in faror of
defendant on its plea of setoff and for tlie entry of a judgment
here against defendant for tl»751«95« The oaee was tried before
the court without a jury*
The amended complaint alleges that plaintiff receired from
defendant the following order > under date of May 1, 1933 t
"Please enter our order for 400 gross of fountain pens of the same
kind and quality as we hare been receiving from you. * * *
"These fountain pens are to be delivered to us at the rate of 50
gross per month to be shipped on the 15th of each month. * * *
'•The price is to be $34.00 per gross. Net #154
"Kindly sign and return to ua the duplicate of this order whleh
is enclosed to signify your acceptance."
The amended complaint further alleges that plaintiff accepted the
order and on May 15> 1933, delivered to defendant 50 gross of pens,
Of a value of |l,700| that on June 10, 1933, defendant ordered
plaintiff to ship no more pons until further notice, which order
was accepted by plaintiff; that plaintiff delivered, upon orders
of defendant I 156 gross of pens, at a total contract price of
15,270.95} that defendant paid, on accoxmt, the sxim of $3,519;
leaving a balance due of |1, 731.95$ that on November 6, 1933,
*>ti>o.:.
(itfiiSXIagiEfA
ii:'j/ I v^^ap;!
i<^
oAoPfi 8S
'.•jO aai ^0 t:
,,f^-
aa:ffi'Vi»|sxi ^
.■IT8 82^.;
i; OHIO I
.^-K
%0 TO'/,-'] f!
e5U3« oiiJ XQ err; Q n,'
* •'^- ■>: tXJO-. ,
..r:*noax ii'J.^t .y iU-...
i t- J.'.:iu*.:v) !ji
0 .IL'O losnc r.
-8-
defendant ordered 50 gross of pens and plaintiff offered to dellTer
the same provided defendant paid the said "balance; that defendant
refused to pay said halanoe and notified plaintiff that it nould
accept no more delireries of pens aind cancelled the contract; that
there was due and owing to plaintiff an unpaid halance of #1»751*95«
with interest at fire per oent from Septemher 28 » 1933.
Defendant's answer admits the contract set out im the
conpl&inti admits that on June 10» 19339 defendant directed
plaintiff to ship no more pens until further notiee; adaiits the
deliTery to defendant of the pens set up la the eomplaint and
that there is a "balanoe of $Xt'751«95 due plaintiff $ subject to
credits due defendant on account of plaintiff* s breach of the
contract I admits that on ^Torember 6, 1933f it ordered 50 gross
of pens* but denies that plaintiff offered to ship and deliver
same provided defendant paid plaintiff the balance due» emd alleges
that on Hoveatoer Q, 1935 » plaintiff advised defendant that it could
not ship the pens due under the contract because of the increase im
the price of gold! denies that it cancelled the contract* and
states that plaintiff advised defendanty on Septesaber 6» 1933f
that it would make no further shipments beyoad 50 gross » which
were afterward shipped* and gave as its reasoa for its action the
inorease ia the price of gold; that plaintiff by its action* oa
rrovember 8* 1933^ breached its contract* Defendant further denies
that there is any sum due plaintiff* and alleges that there is a
large sua due defendant by reason of the breach of contract set up
ia its eouaterclaim. The oounter claim alleges that it is in the
business of selling* through its solicitors* items to retail mer-
chants to be used by them as premiums} that plaintiff* because sf
past dealings, wae familiar with defendant's sales plan; that oa
May 1* 1933* to protect itself against the prospective rise in
the priee of pens* defendant entered into the contract with
, d^«X65'«Xi^ 'to ©acsXatf fji^qmr ms 1'ii;?jBliBitj oi SJfLiwo &bs &>. ..ton^f
•cf^ a^hubis i&otioii xsifdxw? Xlw#5« Bjnaq ^uem ©« crtrfa oi tll^tcisXq
^oviXsb boc qiria o3 bts^sl . i.:i.»Iq; sj^i aeinob ,)«tf ^enoq; lo
asnoIXj? -bar. <s0r'> ©OfLoXjerf 9il;f Itidnl^Icr bir.c, Jr.^'.biiv.lt;;^ bsliivotc ©a.-j^j
. JJ .,-' 'J ,. u
erf* flOitfof: Gii 'zol no:j; s
1- ■ '?>:£Oi;i
t i^jiiijeX dj
xo^'5>;>ii«/o© iiiT «iaJt«Xoit®*ax; .' Hi
t snlXXe« to aa&ctiaijcf
■ ;j: ,/; J.I:.,v.i ^o8*oiq 0* ilSQl <X ,,,
ccmplaloant; that on Septeab«r 6, 1933» plaintiff adrlsed defend-
ant that It would rdfUB« to ship any further pens except 50 gross
which It had on hand» and gare as a reason for the refusal the ris«
in the price of pens due to the Increase in the cost of gold used
in the pen points} that on Septemher 28 plaintiff delivered to
defendant the said 50 gross of pens; that on IfToveiaber 6» 1933f
defendant requested plaintiff to ship an additional SO gross and
on iToTomber 8 plaintiff refused to ship any more pons and adrlsed
defendant that it could not ship any w)re pens 'because of the in-
crease in the price of gold» there"by "breaching its contract with
defendant I that defendant withheld payment of the balance "becauso
of the failure and refusal of plaintiff to ship the additional
pens I that defendant » because of the advancing price of pens*
sustained damages in the sua of |6y370| the differenoe between the
contract price and the narket price of the pens at the time when
delivery ol the ease was duel that plaintiff is entitled to hare
the unpaid balance of $1»624«22 credited against the sua of i6«370t
and that there is now due and owing to defendant froB plaintiff
$4,745. 78, -^
The material parts of plaintiff's answer to the counterclaim
are as follows: Ths^t on June 10» 1933 » at the request of defendant;
It was agreed that plaintiff was to ship no aore pens imtil notified
to do so by defendant) that on November 6, 1933» defendant ordered
50 gross of pens aad plaintiff offered to delivsr the s^jbo upon
payment by defendant of the past due indebtedness, #1,751 ,95? that
defendant refusod to pay tlie saae and plaintiff ref^tsed to ship any
more pons until the balance was paid; that thereafter defendant
ordered no aore pens although plaintiff offered to deliver all the
renaining p9ns ut the contract price; that on September 6, 1933*
when plaintiff advised defendant that it would aalee no more ship^
ments except the 50 gross, it beliored chat it had the right to
ftaiY sjli Xj»B*'i»i 3ii4 10^ nosT'ST c «« ©y-ks htm tbnM mn bmS *l ri^ijfw
<;>y" .^ .,.,^ .- ,,-:■_„ ., . ■'...,
noqjj sBtca sfli 7:*YiX .iiw£ii*iX<i >>cu: t.aoq r o 08
iRdi j3e«X<5TtX^ <ae»nb«iJtft>i?M/ swi* *ts«C£ edi t% i«Afoti»l''jb x^ JJnani'iAsfl;
-•.X': — -r;.- cf. •>:-;.■. ...Mi.' irt^.v^w^^-liii) beei-vfi.i-. t*tJf»fiKiciq* neAr
refuse delivery because the United -JtRfies had gone oft the gold
standard and the federal government eontrolled gold; that ott
September 7, 1933, defendant and plaintiff agreed that defendant
should Qulsmit the entire proposition to itn attorneys and if it
was adTisad by them that the HRA. and the fedl«r»l control of gold
did not Titiate tht? contract between plaintiff and defendant,
plaintiff would thereupon deliver to defendant the remaining por-
tion of the fountain pensj that defendant ordered no more pens
until K'oveaibor 6, 193:!, and on Noverfier 14, 1953, notified plain-
tiff that it would give plaintiff 10 days in which to wa&e d3llT3ry
of 60 gross of penp. ; that within the 10 days, plaintiff notified
defendant that it would make delivery of 3aid 50 gross of pens and
all othsr p^na ordered hy dofandant provided that r^sfendojat vrould
pay to plsiiitiff the sum of ^1,751,95 then due and owing hy defond-
sjit to plaiBuifi for pane previously delivered j that defendant re-
fused to Biake the payment and cancelled the contract. Plaintiff
further alleges that defendant sur;tained no damage hecause of any
failure or refusal to ship pens*
Tho- trial court based Itn finding for defendant upon tho
theory that plaintiff breached the contract. Plaintiff conteado
that while it served notice on defendant of an intention to brpfick
the contract such notice ic not of itfclf c breach; that it would
have become so if it had been accepted by defendant as such, but
that defendant, upon the receipt of the notice, declined to accept
it es a breach and kept the contract alive by giving plaintiff tsa
days' ti»« in which to perform, and that within said timo plaintiff
notified defendant by tslbphono and by written cOBJounication that
it would perform its part of the contract provided defendant would
pay plaintiff its past due ooligation under the contract j that
defendant failed to make such payment, refused to socept any mors
^T^-> >o Xei^no?> X««5fe©l «►«* fefiF AJS? «>j£i *.^ill fi»i*J X^ be^xrba eMv
-»HXf:Xa; bfll:i'lon <f.58X t^X -fi-ifllteSiTor ho bir.^ ,r.5^X ,3 ■ziwjwvv',] Xi^iar
•<ii6VJt;X?b fJi.cig oj rfoi/iv? iti: a'\j,nft OX ililJaisjXq ©vis biuow j.t jad;^ lljfc*
beiltiffon Xl^rakiilti ta-%eih wX fefifi aJuiiiff $&ii4 r^aoq 'io aaoi^ OH "io
AXuov; im:lm»i.v»:^ im-it bmk^'v^mi ta^'^i fo yK3q[ laxiSo XJ5«
- nstefe xd SHXWft -ibxji? »Jiffe nsri^ i5:t»XSTtX.. 'to Biws. &iU -Ai^fxiaXq o^ x^^
^aabaiy'l&b iadi i»»xsvJXs^fc X^ff*^-*'*^'^^ s^n&q, tot I'li^fliiijXti o^t Sua
t1:iiKi:fi E^S *ioffi$tteQ edit &eXX9«ixso ^a« Aatsiaiceq serl* ©aLsiffl cj# bosifl
,r:noq q:MB <<:>■ X^dtfJ. : ■:ull^-^'i
•>■'' , ... ,.;i.. ... ^ .. ', V i bSR«rf #Ti*O0 XJB.!">"- n'T'T'
.,. ..^.. ■•. f-i -V -.^ittfti?'© orf* &pffaft«itrf f^titjsripl . ,^.. -oaxfi
9«aifl» and cancelled the oontraet; that plaintiff* under the facta »
had ths right to Inelst upon payment of the past due Indehtedneas
befoTQ It nade further dellTuriea under the contraot) that under
the undisputed facts plalablif did no I Dzeaoh the contract.
fhe law heti.rlng on the oaae is well settled* vhere a cea-
traetlni;: party giree notice of his Intention not to ooBpljr with lAis
ol»ligatlon of the oontraot » the other contr^^ctlng party aiay accept
r.ueh notice ae an anticipatory breachf und sue for dtuargee without
vialtlng until the tlae for the coMpletion and fiafilljaent of uuch
eontraotf by ite tenu; but In order to enable hlu to sue on such
an suitloipa^ory brmioh, lie oust accept it as euoh and eonalder the
contract at aa end. (Shields ▼• gars on ^ 102 111. App. 53; C antral
gaadlng Co» y. Olbsei^t 306 111* App« 336*) A sere notice of an
Intended breach of a contract la net of Itself a breaoh* though It
may beeoBe so if accepted cad acted upon as such by the ether party^
yet If not so accepted and acted upon the notice reaalns only a
matter of Intention and may be withdrawn at any tine before per-
foraanee is In fact due. (Alyey^Ffergusoa Co. t. .arnst Xosettl Brewing
Co > * 176 tll« App* 536.} k contract continues in force notmith-
standing defaultf where the party against whoa the default is nade
afflrioatiTely so treats It. (Hibernian Banking Ass* a t. Ackh&rt k
Sgfa Milling Co. I 140 111. App. 479,) A failure te pay for in-
stallments will justify refusal te proceed until payment has been
siade. (Ghleago flashed Ooal Co. t, .hltsett» 278 111. 623, 6ii7|
i?»«LCo» T. ^wssnj. 149 111. 138 J Plnoh & Co. ▼. Kew Ohio <r . Coal
Go., X5« 111. App* 989 » S99.)
It is a oomparatlrely easy matter to decide the ease frm
certain letters la evidence. The record shows that In the fall
of 1933 this country went off the gold standard and the federal
SeTernmeat by r«^gulaticn prohibited citizens from possessing or
using geld except by geyernment permit, aad fixed the price ef
jtloi- r-J-^'r-'
-5-
gold at $31 an ounott* Every manufax;turer was oonpellsd to notify
the governaent of the amount of gold It had on hand and obtain a
license to use it in order to ae.nufaotvu'e pen points and oth«x
similar artlolesy and the amount that each manufacturer was per-
mitted to use vras limited* It further appears that the price fixed
by the gorernment for gold increased the cost of manufacturing the
pen pointa $8 per gross. Plaintiff sent to defendant the following
lettsr» dated September 6* 1933i
"With reference to your dated May Ist, wish to adTise you
that we hare 60 gross gold points on hand which v;e can deliver to
you at the price at which the order was taken* We hare receired
an increase today of ^8.00 per gross more on the points due to
the rise in gold* Ih&t is today* s price» and it does not hold
because we do not know what tomorrow's or the next day's price
will be* Grold is selling at 1^31*00 an ounce > and the prioe may
go to |)40*00 or more* Therefore » we wish to adrise that all we
can deliver to you is the 50 gross pens*
^'Please adyise us at once whether you want the 50 gross
to be shipped to you*
♦•We are also enclosing herewith stateaient, and would ask
ydu to kindly send us a check on same*"
Sefendaat seat the following answer to that letter » under date of
September 8» 19331
*We are enclosing our check in payment of half of your
inroice*
"You may ship us the fifty gross of pens immediately.
We will use the balance of four hundred gross which we contracted
for and* of course* the matter of price has already been settled.
You will remember that when you were in Chicago, you told me that
you had purchased pen points for the four hundred gross of pens
and naturally, any raise in price of gold will not affect our
order. You know, of course, that we hare contracted to furnish
our merchants with pens at a definite prioe and it would be
impossible for us to ask them to pay mere now* If we did, they
would simply dio continue the uge of our plan and we would have
to give up the deal entirely^^ It was in order to prevent anything
of this kind happen that we placed the order with you for four
hundred gross of peas in May* If you will refer to our letter of
April 22, you will find this matter fully explained.
"Please send the fifty gross immediately as we are ia
need of pens now."
Upon receipt of that letter plaintiff's vice president came to
Chi<$ago and saw defendant's j^esidenty and the matter of the gold
situation was dlsoussed* As a result the parties agreed that
M aicf€o bns hnsd ko b&d it bXo® \<3 ietants^ »j;{* to ^H»Ktirp«yfrs *rf*
Xsm soiiQ ' < ^ ■.' 'I»a si ftX: ' ■ .i-xn^
ries blwo < inaffie-jsijo dtivfax&d sdaolons osXje '5*£.^ ^^^
Jo ' t :^i!irAl iBiii q4 Tatvsrtfi HffJtwoXXoi ©as jft»a i aabtHflitiJi
. ©o to vn .
*':Zi^t. y-r'-c:} sreer Tn ?Rotp y"'"^''^ -^f^? i'j; 7iv3 ^[iirir ;;r'"'*
t , ■ tot
1, JLfOX
;i.^ ■..'■•.<.' . : ■■'■;3
jilRi; ..,,,■, ,;,, , 1 ,;a
Vfol.'J . . . J
••■i -,.,...- X
ina Gitii bni'^ IXlw iro-^ ,SS I
x"yp>tatiti ceo £5 v. :* ferreR «8.nfX*l''
"♦"foil aacq .i •.■vfj.:'
-7*-
defendant should confer T»ith its attorney In reference to the
situation and if the attorney gave an opinion that the BB^ and
the federal control of gold did not entitle plaintiff to osuieel
the oontraot plaintiff would stand the loae and delirer the re-
maining portion of the pens* Sone tine later defendant sent the
following letter to plaintiff* dated Noveaiber 6* 1933 1
"We hare not as yet receired the fifty gross of peas
■«hlch you iserc to have shipped us during the i»onth of October.
Will you pleaee ship us as quickly aa poasihle thirty gross of
men* 6 pens and tiventy gross of ladies* •
''Please write us immediately and let us know how sooa
v;e can expect these pens."
It will be noted that defendsjit in that letter aakes no mention
of a conference with Its attorney. To that letter plaintiff* a
vice president, on Koreaher 8, 1933* replied as follows i
"V^e are in rsceipt of your letter of Hov. 6th in which
you ask for 50 gross pens.
"We wish to advise you again that we oannot ship you
these pens due to the increase in prices on gold. .e are quite
sure that we have talked this matter over very clearly with you
when last in Chicago, and you were supposed to advise me on thipi
matter when you receiveiT yoiS inf ofaat lonV"
"We can only quote you on these pens from day to day
inasmuch aa there is no set price on gold, and increases in gold
vary from day to day." (italics ours.)
Defendant, under date of Jfovember 14, 1935, replied to that letter
as follows*
"We acknowledge receipt of yoiur letter of November 3,
1933 in vfhich, in reply to oiirs of ?Tovciaber 6 askin you to ship
50 gross pens on our order, you advise that you can not ship theas
pens due to increase in price on gold •
"Our order of May 1, 1933 accepted by you constitutes a
definite contract for the delivery of 400 gross of fountain pens
at the fixed price mentioned in the contract and is not mads
dependent on prices of gold. As a matter of fact, it was to
guard against tha possibility of inereaBed prices that we gave
you so large an order as explained in our letter of April 2£,
in which we also eocplainsd to you the manner in which we conduct
our business and the los.: that we would be subjected to if we
could not obtain the merchandise at the price contracted*
"The matter you refer to that we talked over when you
were in Chicago last relates to the question as to whether or
noc the increase in the price of gold releases you from your
obligation under your contract. In this connection, I hava
:.:nf. VJIXJ: =^rii C "T. — -— - - _ _ _, ^__ „,,. ;r-.
nc .• I
■:•: ni tlPSfeXX&^tJ ***** i»l»*OH ocf IXh^' iT
4oiriw ex xtic< a re „ aeo%? :^s« want
. «0 JBJB , -m
y.l c).^ i^sb moil «Heq ^P<*rf:^ no uoy ©le^P >f^ ,"**! .....x^anf
jawoXXol ttfi
. :t-X tir - p
. . <
lb
i»
tf5
*OJj
-8-
oqnBUi^ed_wit,hjiy afcoomeye and I have eiideaTored to obtain auoJtt
other" tnf onaat 1 on" as lA_*T.^A^>-klj».A''yL^ugh
I_jM jtdTleed that tj^^^^ In bhe prioe of gold dees not re*
^jsaAg-X^^'^TO'" yoiig eontra.o\«
"Under the circumstances, I must regard your refusal to
ship pens aa a breach of contract on your part, and unl^ag W
recelT« .sfaipBient of .tjig__50_jgro8B requested/Klthtn ten days, we
ahfiuLl take such steps tj protect our interest under this contract
as may "be adTieed by our Rttorneys and shall hold you responsible
for all damages incurred by reason of your breach of contract.''
(italics ours*)
Upon receipt of that letter, notifying plaintiff, for the first
time, of the result ef defendant* s conference with its attorneys,
plaintiff, at once, had a conversation with defendant ovsr the
long distance |>eiephone, in which it offered to deliver to defendant
the remaining portion of the pens ia accordance with the contraet,
and to confirm the conrersatidn plaintiff, on ]!fevdmbex 17, 1953 9
wrote defendant as follows*
"Confirming our telephone conversation of above date,
with reference to the balance of your order of pens, wish to
advise that we have taken this r-iatter up with our pen point
mauufac Tourer* He is willing to stand by and take a loss ef
$2000«00, and deliver the points due on your order of Uay let.
*A.B you stated la the conversation held with you today,
you will advise u& >*ien to make ehipment of these pens, and we
are therefore waiting for iastructloas from yoa as per your
letter of ITov* 14th giving us 10 days* time*
"I am sure you can consic^er this as good faith on the
part of the pen point aanufaeturer as well as ourselves, ia that
he is williag to take this Iosb to satisfy your wants for this
erd er •
*We are enclosing herewith statement of your aecpuat
f^JL*-in,S- .^IJipyjlJ'-E past due, and upon receipt o i~ che ck we' sHs 11
ihip CLuantity "of pens as" requested, in~ your letter of Hov» 14th«_
"' ould appreciate hearing fro» you by rstxum mail, and
thanking yon for past favors *■ * *•* (Italics ours.)
Thereupon defendant refused to accept delivery of any more pens
or to pay the b&lanoe due plaintiff, and claimed damages in the
sua. ef $4,?45«43, which wae the difference between the contract
price and the market price of pens, less plaintiff's credit for
the II, 751 .95.
Defendant, by its letter of November 14, 1933, continued
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the contract In force. liad plaintiff shipped tlxe 50 groas of
pens v/itixln ton d&ys of Xorember 14, it coiild not t>e contended
tliat it had defaulted undor the contract. Upon the receipt of
defendant's letter plaintiff at once, by telephone and letter,
offered to ship the 50 groas of pens upon receipt of a check for
the balance past due. 'defendant refused to ;iccede to this reason-
able and proper request of plaintiff. The contract involved in-
atallment deliyeriea and plaini-iif had the legal right to insist
that it reoei-va peyment for merchandiae previously delirered "before
it stade further shipments. Hor was that right taken uway froa it
because it had permitted defendant to make partial payxaenta or to
delay in payiaents. The contention of plaintiff that the court erred
in holding that It breached the contract is sustained.
Plaintiff strenuously eentends that it would hare had a
right to refuse to deliver teeeause of the fact that the federal
government took control of the country's gold supply, arbitrarily
fixed a price of #31 an oxmoe for that metal, by regulation limited
the amount that could be handled or used by manufacturers, and re-
quired mejiuitacturers to purchase froa the federal government all
gold used in their businesses, f/e do not deem it necessary to
pass upon this contention, nor upon another contention that the evi-
dence 8ho;9E that defendant suffered ao damage by reason of the alleged
breach.
defendant }is.b filed in this court a motion to dismiet the
appeal of plaintiff. After & consideration of the same we are
satisfied that it should he denied*
The judgment of the Circuit court of Cook county is reversed,
and judgment will be entered here in favor of plaintiff and against
defendant in the sua of $X9751«95«
JUD01CS¥r EEVISRS3D, ABOD JUBaiRFf HSRS IF yAVOH OJ
piAnrriFF abd agaiirt .DrjpEifDAjrr iir ths sum op $1,751.95,
Sullivan sad SViend, JJ,, eoacur*
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Bttfttndants*
(Defendants) Pl&intlffs 1» i§»xor.
iilRROH TO CffiCWt
OOeRT OF C<K«
8 5I.A. 5 92'
I^ott a ^mormm df f«r«cXasttjr« and oertain oilier ord«rs
«&tered in a mechanio's lien oase def^fidaats Paul Holubsic and
Jvlla Holttb^k hare eued out this writ ©f aTrox*
On ^anuairy BO, 1916, Anton Bedn«r, a sabcontraotor, fll«4
a bill f»T K«0hani0*e lien againai Frank J^ajar, th« ooatraetor,
ani Paal flolQbak and Julia Kelubek, the ©wnere, as Jaint tenants,
•t tJna praperty tn question, in wM«h ha all egad tliat there was
dma him ttnd«7 the texm ©f a oGnt»a©t hetwcea him. and Kejer ihs
SUM ©f |67S«95, and f©* ©xtira work and Material, $40, a total ©f
t«ia.98. Tttfjolph Taeak, trustee undsr a estrtaia trust d©«d, and
th© ttnktt©vn ©vnere of the notes secured by th© trust deed were als©
aiade parties defendant* The bill prays i'©r the alXowanoe of a
raechanlo*e lien and a fereclesure ©f the preperty.
If^r a proper understanding of plaintiffs in error's con-
tent ions, it is necessary t© state fully the rsry unusual reoord
before us. On February 13, 1916, the appeaxane©s of Paul Holubak
and Julia Holubek were entered by their solicitor, Michael P, Girton,
u.m&
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and en Mareh 9» Xfilf>» thm latter fllo^ thslr antfrnnr. On Jf^rraarx
• » 1917» an •r<l«r waa «nt«7<»d refarrln/^ the eau0« to lla«t«r la
Ciuuio«ry Boss, fiaid Master's eertifioattt of eYldonoo shown that
at Vixa hoaring "Mlohaol F« airtoa* Koq^** by Otto w« JiurfonSf
»•%•»** appoared aa '^OolleltOT for Paul Holubek aad Jvaia iiolubok • **
Vftfltor Kooo 99mmen»«4 the taking of teBtlnoay on February 6» 1917^
and eonpXetod It on J^ane a» 19X9 • The maotor foiaad that ooapXainant
im« entitled to a li«n for CcXS.OSi "from which chould 1»o deductoA
one-half Of the swbj of $407 p&l« by Paul Holnbok to John i» Kolnlokf
wtaleh le 1 203.50 » laaking |408*58} from which shonld ho dednoied tho
81UB of f4lB0 to he paid by Paul Holubek to llXlaai C* ^lppMm» doing
buslnoBf' &e '-IppffiMn Brothora* That tbo c^aid /mton Bedaor la ontltloA
to a lion upon th^» preatlaes of oald Paul Helubok above dftsorlb«d» foy
tho mm of $398*&St togothor with intoroBt at tho lo^sal rato* froM
on or about tho lot duy of Booenbor 1916* ** Tho maatrtr rseooffiended
that ths eoet of the proeoed Inga bo divided oqualXj botv^oon Paul
HoXub«k and Anton Bsdnar. On July 2^ 1919| ?attl Holubek nnd Julia
Kolttbok filod nunoroua objuotiono to the jaastsr's raport, CoKpXalnant
also flXod with the maator nwoiorous objeotlono to tho rvportt but
th«y wor^ not filod with the olerk of tho oourt until Ootobijr a, 192a«
Oa Augvot 27, 1919 » a atipalation wns entered into "eontlnulns and
holding oaiaeo la aboyanoe without pr<»judloe to aithor party until
irov«rt*«r 50, 1919, ea aoeount of eoaplalnant'o aolioltor going to
California for hlo health*" ':«pt«abor 17, 1924, an order nmt^ ontorod
tranof erring the couae "to tho oalondar of passed oaooo.* Oa Hay 18»
1923, upoa notion of eosplaiaant, loaTo wae granted to file tho
»a»t©r«8 report Inatantort "thi5,t the obj«etlon« raloed before tlm
Xftster otond as oxeeptioas to oaid report. Tho etenographio record
to be filed by oompXainaat vlthin five daye*** The order of May 13
boare tho 0.1. of •o. v. Jurgone Sol. for T)of • Holubek," On
I ... . *•.. ■ r .
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S»pteBib«r l«t 1W0» the eolicitor f»T aoaplalnant presented to
tlie c«urt a yerlflea petition which roeltos that Maator in Chancery
Roes had nerer Bigsed the oertlf leste of cTidenee* that he was no
longer a ia^ter in ehaneerj and that the eourt should enter an order
upon hlM to sign the eertifleate of eTiden«e» and thereupon* upon
motion of eelicltox for eonplalnantt an order vati entered •rderiag
Sose to sign the oertlf lo&to of oTldenoe* On Ootoher 16 » 19S3«
upon motion of Bolloiter for ooaplalnant# it was ordered that tlw
hearing upon the otojeotions to the report of the naater >• set for
SoTember 1» 1923* This motloA appears to hare hoen hftard ox parte «
On October 23 » 1953» the following order was «itered« "This cnuso
heiag regularly called for trial and no one appearing to proseouto
this oauee in their behalf on notion of Court « it la ordered that
this oauae be ttnd the snaie la hereby diemieaed without costs for
want of preeecution*" On iTo'vetaber 3» 1933 » a notioe addressed to
"^nton PeclTal* aol« for £a4or| Joseph Kroufa* 3el« for Oertalm
Dft8*i Ja)hn 0* Sfaterst Sol* for Cippoan Broo.t Otto w, Jurgens*
Sol* for Holubeksp" was drafted by complainant* a solioitar* It
stated that- on Fridayf IfOTombor 3» 1933» complainant's solioitor
''shall mere the Court to apprere and enter an order in substaneo
sustaining the exceptions to the Master* s Heport and ordering a
decree in accordanee with suoh order*" iittached to the notice is
an affidnrlt by the solicitor stating ''that he was unable to aerro
notice upon the defendants » Paul and Julia Holubekf because he is
not acquainted with their present address} and that a notice mailo4
to their only known address was returned undelirered** A seoonA
affidaTit by the same solicitor states "that he somt one Jaaes J«
Fraaois to the last known office address of Otto ¥• Jurgens^
solicitor for Paul and Julia Hclubek« in the City Hall S<iuar«
Building, Chicago* tllinoisi * * * that said Jmwo J. Trancis
was unable to locate the said oouasoli that said Tranois made a
tft^ ft^ee' ^f}th \ti&i»A tut 9iitr.«t sid^ sta» q4 t>«u-'0 aitii
1©:J i',]- r*:;:,. ;. '^r viisJ . ; J..:;U';i < "Tvl , . ■ . ' "" ?■ ■ ^
■ Jt Mf eaosoAd ».it»tfJtfX«>r «i.i.. , . mhst»% ci«i* f»i*wh
jkn«e»a A * . it . f- v .t i.; --fiv »'■- i>r,.-
diligent •«arch for 8at4 ooub««i1| atid tbat this affiant %ell«T««
that Otttt • Jttrg«n« la not In this stat«f and that he )»« no waj
•f lo«atlaff the eald John 0. ^attfra," goll«lt»r for 'Zijtjamkn Brothers,
defendants* n affidarit of Traneio atateo thai "iM wont to tho
laat kn€P>m addreea of Otto • Jurgens* lolloltor for Paul and Julia
Holtthok, at the City Hall Square Buildlngt ChUago* Illinois, * * *
that after a diligent search for thoBi he vas unahle to looate eithoT
onet and that ho was Informed that Otto " • Jurgons is la :<urop«|*' that
ho was also unahla to locate <'ator8» solicitor for i>ipjmmn Brothers*
The not;io« is not dlrscted to Michael F« O^irton, the solicitor of
record for the Holuheks* and frea the affidaYlts it appears &hat
thor* was no effort mde to e^rre hia* On Horeidier 3, 1935, the
trial court, upon notion of c9»plalnant*s solicitor, hoard 9x imrto^
and without notice, so far as the record slMws, onterod an order sus-
taining eaaplainant* 0 ohJeotioBO to th« master** report mnd fla^laf
that th^re ^as due eonplalnant the full amount of the lien clalned,
Tia., I613.80. Oft ^OT«Bher 15, 1935, the trial cowrt entered a
deeroo, which finde that thero wab duo ooaplainant from the HolubAks
the SUB of 11,154.56, with interest froM the date of the decree} that
on failure of the Holuhoks to pay that aaount with Interest in sixty
days the Blaster in chancery shall aako a sale of the prcauLaes* The
decro* was entered without serTlce of notice upon the Holuheka,
airtea or Jurgens. The certificate of avldenoe waa not filed in tlM
oldrk*s office until June 6, 1955, the delay heing caused, ap^^arently,
hy the failure of Hoss to sign the oertlfioato* on ltoT&i)*er 15, 1955,
subae^uant to tho entry of the decreet and without notiee to tho
Holuheks, uirten or Jurgens, the court, upon motion of the selioitoir
for complainant, entered an order sotting aside tha order of Octohor.
25, 1953, dlamisi^lng tho eattse for want of prosecution* On 7ehrunry
9, 1^>^> th« Holuheks filed a ▼erified petition in the cause, which
Stat 00 I
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«« ♦ ♦ That on January 3« 1934, th«y were Informed that
a dioeree had been entered against the» in the alMve entitled
eaaae on ^CYeaher 13, 1933, Bxnf that this was the firet infor-
oMitlon they had erer reoeiTed of the »ntTj of said deoree) thai
upon examining the fileo and records In the abore entitled oausa
on January 4, 1934, your petitioners discorered that ar\ld decrM
together with other orders had ^een entered herein, all "ffithout
any n«tioe to yoiir petitioners or their solicitor; that your
petitioners' solicitor. Otto •> • Jurgens, has been absent from
the Juried iot ion of this oourt during all of the tiae during
whieh said orders and said deeree were entered*
** * * that on October 23, 1933, an order vas entered in
the above entitled oause, diemisein^ said eause on the trial eall
f»r vant of prosecution; thnt thereafter, toviti on MoTsaaber 13,
1933, without any netiee to petitioners or their solicitor, the
o<»Bplainant caused to be entered an order setting aside said order
of dlsaissal for want of prosecution and further finding that the
.Vi&ster in Chanoery erred in hie report in finding that the coa-
plainant in the above entitled cause was entitled to a neolianio's
lien against p«tlti«tters* prenises for the sum of $255 .BS, and
further err«d in finding that the costs tf this proeeeding should
be equally divided between petitioners and the ecmplainant, said
•rder of i^oremtet 3, 1933, further finding that coaplalnant was
entitled to a lien for t613*80{ that thereafter on Moveaber 13,
1933, without notifying petitioners or their solicitor, the
coapXeinant through his solicitor caused to be snterod in the
above entitled cause a d3oree finding that there wsts due the
ooaplalnant froa petitioners the sua of (1,154*36 with 5> Interest
thereon froa the tiae of the filing of the bill herein, and that
petitioners should pay said sua with Intereet and all oosite of
this proeeeding within sixty days from the date of the entry of
said deeree, which sixty days will expire on towltt January 12,
1934. :::ald deioree also contained the usual provisions for sale
by a liaster in Chanoery la default of such payasnt by petitioners
of said sua*
** * * that ooaplalnant' a bill of eoaplaint has boon
pending b'v^fore your honors since 1916 and waa r<trick(»n off so far
ae the above entitled cause Is oeneemed froa tho dockets of this
oeitrt pursuant to Bule 23 eaetion 3 of this oourt prior to July,
1933; that complainant's solicitor had always prior thereto
served notices of all motions in said cf^uee on petitioners*
Bolicitor or his representative, and that no notice of the
presentation of said deeree was ever served or oaae to the notice
of petitioners or their solicitor until January 3, 1933*
*'Your petitioner therefore represents unto your honors
that said oause should be heard upon its aerlts and petitioners
giV'in full op ortunity to present their defense; that the orders
and deeree entered in the above entitled oauoe since the aonth of
October, 1933, are void and of no effect because no notice was
served by eonplalnant on petitioners of the presentation of aay
BOtlons for the entry of said orders or said <ieorce, and that
the saae should be therefore set aside and the hO( rln^; on the
exceptions to the report of the Master In Chanoery filed herein bo
set do- n for aoae day, so that petitioners rec ive a full hearing
upon th^^ aerits* 'her ef ore petitioners pray that an order bo
eaterdd herein setting aside said order of ifeveaber 3 aad said
decree of srov>aber 13, 1933, and setting the exceptions to tho
Master's report down for hearing, and for aueh other orders ao
shall seea proper*"
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In aufpQXi qI the petition^ two affldaTits ««r« fll«d*on«
%X Clinton A. rtaffordt statiag that h« had b«en as&ool&tcd with
Otto '• Jurgonst solicitor for oortaln defondaato In tho aboTO
entitled oattoo* for aaay yoarsi thai, he eeoupled mn office In the
saa^ eulto with hl»t ftad haa h&adXod aaoh of JuTc:en*a poreenal
bttalnesH as ^fvell as aattera whoroln ho was aolloitort that aald
Jurgona haa reoelred hla aall at lUO City Ball Sqaaro BttlXdlnirf
139 north Clark strootf chleogo, Illinois i 'hrhtro affiant has offload
for aore than one yoar laot paat}"* that Jurgons vrns prt^aant In paraon
In said off loo aulto during a part of ths siioaer of 1933 f oocttp3rlng
aa of floe therein at times) that affiant N^Ottld haTo had authority to
accept amy notieoa of awtlon la the sbOT<8 entitled oaiiae froa tho
ewaplainant or hlo solicitor for Jurgano* or ^ould bans directed and
Informed anyone seeking to serre nnmo of th« proper disposition of
aj^ sueh notloe» hut that affiant knows of no attraipt harlng been
made to oerTO any notice on Jurgona la the a&ld cause "at any tlmo
la the past atx moathSf although affiant has constantly offloed at
tho above named aulto »" where mall has been dQllverod to Jurgeno
during aald period | th^t affiant has r<9oalTed no notices of metlona
to said Jargons In said eau8e» nor refused to accept any sou<?:ht to
ho serrod on him. The name of said Otto t Jurgena* affiant b<UloToa»
has apj^eared aa of said address la all legal dlr'^ctorlos. Tho other
afflctuTlta made tor Christian H&rdtt statee that he was employed as
tho law elerk for Otto -v. Jurgons* solicitor of rnoord for Paul
Rolttbek and Julia Holuhekt certain defendanto In the ahoro entitled
cattset and has had hlo office at suite lUO City Hall Square 9uildlag»
139 u, Ulark Street » Chieago* '*for awre than one year lat>t past}" that
Jurgen@» duriaf: said period* haa receirod his mall at said office
addresB nnd oocupled an office la aald suite of offices during a part
of the euamer of 1933 1 that affiant was authorised to a«c«»pt Berrieo
eieiiw" J
a* iii
tMnf
•f any notices of metione In tte ahcrre entitled! ff»uae fer and an
behalf of Bfiid JurgenBf nnd that af riant has heretofore Be«n tho
solicitor for eoinolalnant in the ahoro entitled eause la the abcnro
naat^d suite of offices* s«%rTing notioes of notions ia the aWro
entitled c«iu»e» hut that affiant h»s nmrBi seen hlM there "within
the laat ulx jaontho* nor any T«pr«Sf;nt&tlYe of hie» nor ha» affiant
aoea» re ee trod or boon infomed of any aotieee of net lone of any
kind ia said oduse during eald period} that %ffieat hajo not rofus«4
Beryloe of any »uch notice of motion hereint that afflnnt beliereo
that the naaes of Otto *« • Jurgeas and of Paul Holubek hare s,pp&»T9A
ia all legal and telephone dlrnetoriea during said period ao of oaid
addreae* On February 1 ', 1934* the Holttbeke filed a Terified
eifppleai»ntal petition* in -«hleh they state that slnoe the f llia^ of
their orlglaal petition they haTo disooTored from the records of th*
ce\irt that their aolieitor* Mlohael !• Qirton* has aoTsr withdrawn
of reoord as their solloitort that Otto W« Jurgoas was nerer foroully
Eubstltated ae petitlonere* 80lioltor» nor has there beea any order
of thl» eeurt allo^'?ing the withdrawal of s^ld airten as their
eolicitor or the gabatltution in hie stead of aaid Jurgensi that eaid
<Slrt«a haa nerer beoa esrred by ooaplalnant with aetioea of mot lone
nade by ooaplalnant to set sold a the order dirvmiusing the «aid caiaao
foT tant of prorteoutioa; nor jj^s lie e^rred with any notice of a
tfto til on to entor the d^eroot nor was he eeryod with a notice of tlM
further ord^r that was oatsred in HoveBber» 1933 » aad that oowplalnant
did aot a^rre aotioo of any notion on oaid Olrteai that the eertlfi*
eate of «Tldanoo takoa before Master ia Chanesry Roar, aow on file
In the e(iuB3« does aot boar the eigaature of aaid waster and thoro«
fore the deoree and erdero stored in the oawee parj^ortiag to bo
based on th« «Tldenoe eontainod in aai4 tranaexipt of «Tidenoo aro
ToiO and of no of foot, and that no deoree could be entered in the
oaueo until the jsaster duly certified oaid traneoript. The
■m^m
uLi a--3i cattle -ix.ir-. sjau scalix^ JsxiJ <^m« »is;.'^s --' • • i«f^ "^6 ^X«il»#
B»X XI* «;4
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iaMsUAlMiOQS tMUki htm •CA9X «t»<tak«v^oiI c.
•f' te*i» m4 fciiiotj ae^oea M IaU^ ^a^ . stn^tH or '^o oft* hXf»^
•a-
I^«tltloattrfl prayed "tliat tb«y be glran full opportunity to arg««
their oxoeptioas on fllo horoia to tko roymrt of tli« Mas tor la
Chftncaryi that tha ordero ontored horola oinoo tho aoath of Ootobox,
1933, which ar« void and of «» off««t, ho sot aold^, partioularly
tho order of iloveaOior 3» X933, and tho docroo of ifOToahor 13, 1933,
and that aftor tho oertlfleate of aTldanoo attaohed to tho tranoorlpt
of evldenoo takoA hefore tho U&stor he signed by said Maotor, tto
oxceptloao to oaid Maator's r«port bo i^et down for hoErlag." Ob
Febrtt«ry 19, 1934, on motion of complainant* o solleltor, tho court
entered an order dwaylag la„lot£ th« prayer of the HeliAoko, Suboo-
quontly, upon notion of co«j>laln«it, a Maotor In ehancory w&o appolat-
od a opeolal aM«t«r to make a ^ale of tho proaiooo, and It appoaro
that sttoh aalo nae oade and that the report of the special maetor
ae to the oalo wao apprOfTod.
Plaint l«e in error oontsad that under the reoord the deoroo
oatorod la thU oanso, the order entered on HoYOBOier 3, 1933, and tho
order ontored on Sovo«ber 13, 1933, eottlng a»ide the order dlaaioaiac
the c&use for ant of proiseeutlon, iaa»t be reTerood. It is plain,
from the racord, that tho oontention of plaintiff o in error imot bo
ouotalnod. Xo hold othorwlse would be to porslt a niaoarrlafo of
justice*
Tho deoreo of tJie Circuit court of Cook county, the ordw of
VOYeaaior 3, 3.933, and the ordtir of Nor^iiber 13, 1933, oottlag aeldo
the order of October 25, 1933, dismissing the cattae for ^aat of
prosecution, are rererood, aad the eaUse la roMaaded with direct loao
that if tho trial court, after a hearing, eaters an order raoating
tho order of October 33, 1933, it el^ll than paao upon all exceptions
to th^ master* s report, and ehall thereafter enter further aoeeoaary
orders aot InconBlstont with this opinion*
■■r.(m'sz, Qixii^ -D? 3rov:-jDisR 3, 1933, iiUr Q:.Dm «
sayi:.mm 13, 1933, asTTiac - -t- -^ o» o(?roim
23, 1933, Dir;MEs;:i»G TH-. Q •: OJ :»ii035CUTiO¥,
BuUiTan and Trlead, JJ*t ooaeur*
•#**•-
0 UMt tf^'
5i5i.5tl»&K»
C^^ftiUR i«-
9i3i«ri s-.iii'
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.fc»rx^
liittiiD 'Jtrtv
, •fffrn-
■j-f^ ttlMh JWTiXXtf-
33506
Appell ee , )
▼••
YBBUOKT OORBOK,
Appellant.
OF/jlicA(fO.
28 5I.A. ^92^
MR, PRESIDIKG JUSTICE 8CAWXAK DELIVERED THE OPIiilOK OF THE COURT.
A judgment fey confession on a lease, in the smn of $1,061,
which included #126 attorney's fees, vtas entered in favor of plain-
tiff and against defendant* On motion of &}sCiejii.iaj:it, an order was
entered that the jud^^ent be opened and that leave be given to de-
fendant to make defense, the Judgment to stand as security. In a
trial by the court there was a finding in favor of plaintiff and
judgtaent was eritered oonfirEiing the jud^ient by confeesion. De-
fendant appeals.
Defendant's affidavit of laerits averred:
**(!) That said judgment was entered on an alleged claim
for rent asserted to be due to plaintiff from the defendant for the
aonths of July, August, September aKid October, 1934, and for at-
torney's fees, under a lease from plaintiff purporting to deir.ise
to defendant a portion of the premises Icnown as 110 South viTater
tearket , Chicago, Illinois, for a period commencing ii^ay 15, 1934
and ending April 30, 1935; that under date of June 12, 1925
plaintiff contracted to purchase said premises from Chicago Title
and Trust Company as trustee under the Chicago Produce District
Trust; at the tiiae defendant entered into the lease with plain-
tiff upon which jud^ent was entered in tnis cause, plaintiff
was in default under the terms of said contract with the owner of
said property, (said Chicago Title and Trust Conipany, ^s trustee),
and had been in default thereunder since January 22, 1932, wnich
fact was unknown to defendant at said time.
"(S) That on liaroh 5, 1934 pursuant to the provisions of
■aid purchase contract under which plaintiff claimed the ri^i^ht to
possession of said premises, a notice of plaintiff's defaults was
sent by the vendor to plaintiff, and sixty days tuereafter, plain-
tiff's rigiit of possession to said premises was teruiinated pursMftt
to the provisions of said contract of purchase, and on June Jl ,
1934 a judt^jent for poesesaion was entered by tne Municipal Court
of Chicago against both plaintiff and defendant and in favor of
said vendor,
"(3) Defendant paid rent for said premises to plaintiff
during the tena of said lease through the month of June, 1934; by
reason of the fact that plaintiff tnereafter was not entitled to
possession of said preitises, and because possession was delivered
.3V
'i^»io.^rHi
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iciii....Eae05
to dtfendant thereafter ty the Tenrtor, defer iont tjaid the monthly
rent for said ^rMils«8 to sail vecrior lor the month of July, 1934
and for the ensuing months of said term for which judgment was
confessed in t lis cause,
"(4) By reas n tf the faots hereinabove set forth de-
fendant states that he is not indebted to the plaintiff in the sua
for which Jud&ment was confessed agiAinst him, or In any sun,*
The following "Agreed Statement of S'acte* was filsd in
the cause:
"(1) On July 28, 1926» plaiKtiff entered into a unit
sales ooiitraot ^ita Chicago Title and Trust Company, as Xrustee,
the owner of the fee for
Lot 105 in South %ater iwarist, Subdivision ir. the iiortheast
Quarter of bection 20, Township 39, Range 14, in the City of
Chicago, County of Oook atxd State of Illinois, * * ■*
*(2) On July 25, 1932, plaintiff was ii. default under its
unit sales contract * * * as follows:
Failure to pay the sum of >^3,490 due under the ten/is of the
contract to and including the payment due June 22, 1932;
Failure to pay general taxes for the years 19 29 and 19 30.
"On July 25, 1932, the Chicago Title and Trust Couipany, as
Trustee, sent to plaintiff "by registered mail a notice dated July 25,
1932, a copy of which notice marked for identification Defendant's
Bxhibit 2, may be admitted in evi^enee vrithout further proof of its
execution or contents. Said notice was receired by the plaintiff
on July 27, 19 32.
"(3) On March 5, 1934, plaintiff was in default xinder th*
unit sal'^s contract ae follows:
li'ailure to pay iuonthly InBtall^ ei.ts in the sum of $46C eadi,
i^ich became due January 22, 1932, and monthly thereafter;
failure to pay cemit-annual installments in the sum of #270
each, which beca e due February 22, 1952, and tesii- annually
tiiereafter.
■failure to re-psy the sujx. of #164 « SO advanced by the Chicago
Title and Trust Company, as Trustee, on account of insurance
premiums ;
Failure to pay general real estate taxes.
"On Mar oh 5, 1934, the Chicago Title and Trust Company, as
Trustee, sent to tfee plaintiff by resistered mail a notice dated
iiaroh 5, 1934, stating that unless trie plaintiff aade good his de-
faults or surrendered poasesoion within 3ixty days tne Uiioi*g& Title
and Trust Coi^pany, as vendor, would Ithout furtlier notice bring
forcible detaiaer proceedinga for posaesnion, a copy of said notice
rasirkijd for identification Defendant's Exhibit 3, may be admitted in
evidence without further proof of its cxeoutioii or coiitdnts. Said
notice was reoeived by the plaintiff on March 10, 1954.
^rjK ,x."-- -- -- ' ■■' '^'^'^ fnNno^ bxaa ot B^&lm^tq ■'"■■iA^ icA iasi
esw Jnflcasjijjt xlolrlMr '.to't m-.' 'to «il*fiom sceiwans eiid' io1 fcn»
-•Jb xtlTO'l *€>a 0vo.'fe".i9i9fi s. . ^ . ...- .* .. <..;.. ,,--. . ,
at fcelil a*;w "a/o^s i'^oIXot aril
j to i»cme ndi
tS£9ix;^zo4. arid ^Ivlfcrfua ,4'eix«*i t84'«i?J' iUwpc
,slo:iiiII to etaie fcixs iooO 'to t'^iXwaO ^o^oiiSD
mik X9bau tlue'i.^ , ^
{SCO! ,SS eauZ airb arii 'gnlhuloni bcm oi iistrntiaoo
B» ,r' • ■ :i Ltiii eljjL 'iii .LIC'iX ,c3i; TcXt;!. nO"
a' I'i 'lu'i ■■"00 £) ,S€6.r
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"(4) On April 30, 1934, plaintiff entered into a least
with the defendant for a portion of the premises hereinbefore
described* .:ald leaae is part of the court records.
"(5) The defendant entered into posseeeion of the praanisoa
described In the leaee on to-witt the date of execution of said leas*,
and remained in pogseesion of said preaises until after October 31,
1954.
"(6) On Kay 16, 1934, * * * the vendor under the unit
Bales contract marked Defendant's IIxhlTait 1, instituted a suit ia
the Municipal Court of Chica?-o for forcible entry and detainer
against plaintiff and defendant. On June 21, 1934, a judgment
for possession in faror of said * * * Crust Company was entered
in said forcible entry and detainer proceedings against plaintiff
and defendant.
"(7) Plaintiff stipulates that defendant paid to the
Chicago Title and Trust Company as Trustee, commencing on July 1,
1934, the SUB of ^^233.75 per month for the months of July, August,
September and October, 1954, for the use of that part of th«
property involTsd herein occupied by defendant * * *,
"(8) Thereafter, on July 19 j 1934, said judgment for
possession vas vaoated and set aside and said ■* * ^ Trust Company
thereupon took a non-suit*
"(9) On July 28, 1934, Chicago Title and Trust Company,
as Trustee, served on plaintiff a written demand for possession
of the property described in the unit sales contract. Said notioo
was received by plaintiff on July 28, 1934. >*■ * *
•(10) On July 23, 1934, Chicago Title and Trust Company,
as Trustee, served a demand for possession of the property involved
herein on the defendant * * *, Plaintiff admits the fact of the
service of said notice. * * *
"(11) Thereafter, on i.ugust 1, 1934, said * * * Trust
Company instituted proceedings in the Municipal Court of Chioage
for forcible entry and d etainer against plaintiff and defendant.
In said * * proceeding a judgment for possession was entered in
favor of said *-!«•* Trust Company against plaintiff and defendrmt
on Oeptember 14, 1934. A vjrit of restitution -was issued on said
judgment against the plaintiff and executed upon him, and possession
delivered to the * * * Trust Company thereunder.
"(12) The plaintiff did not voluntarily surrender possession
of the premises involved herein to said * *^ * Trust Company until
after the issuance of a \rit of restitution following the judgment
for possession against him.
"(l3) Plaintiff's suit is for rent he claims to be due under
the lease * * * for the months of July, August, September and
October, 1934, at the rate of i:'233.75 per month, aggregating the siai
of .^935, together with the sum of C126 for attorney's fees provided
in said lease. I'he defendant admits that he did not pay to plaintiff
the rental herein described for the months set forth in this
Paragraph."
Tliere was also Introduced in evidence the contract between
the vendor, Chicago Title and Trust Company, as trustee under the
-s-
• R
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Chicago Produce Dietrict Tr^igt , and the Tendee, plaintiff herein,
by the terms of which ths Trust Ooapany sold to plaintiff ths
property In queetionj also the notice of (iefault served on plain-
tiff on July 25, 1932; also the notice of d efault and notice that
unless plaintiff made good his defaults within sixty dsiya vendor
\70uld be entitled to terminate all of plaintiff's rights under the
contract without further notice or demand and that unlisss plaintiff
made good his defaults or surrendered poaoession within alxty days
it would, without further notice, terminate all hla rights under
the contract and bring forcible detainer proceedings, served on
plaintiff on March 5, 1934; also the demand for possession of the
premises served on plaintiff on July 28, 1934,
It Is not disputed that in defense of a suit for rant a
tenant mp.y show that his lr.ndlord»s title Is terminated. (See
Mltzlaff V, Midland Luaber Co,, 338 111, 576; Siaafford v. Hadgee,
231 111. 140 J Corrlgan v. City of nhloap:o> 144 111. 537.)
Defendant contends that plaintiff's interest In the premises
terminated prior to the period for which rent Is claimed, as the
vendor had exercised its option to forfeit Its contract because ef
plaintiff's defaults, prior to said period. The contract provides
that after notice of default and the oontlnuanee thereof for a period
ef sixty days after such notice, the contract should become null and
void and the rights of the purchaser should cease and determine at
the option of the vendor* The sixty days' notice was given. The oon«
tract does net specify any particular method by which the vendor's
option to terminate should be exercised, nor does i» require any
formal declaration of forfeiture* it is the law of this state that
a forfeiture may be dedueed from clroumatanoes or a course of conduct
that clearly evinoes a definite Intention to enforce such forfeiture,
(Morray v. Schlosser. 44 111. 14, 16#) Notice to vendee that vendor
will expect strict compliance with the contract followed by a failure
taxminJL lllsaisl.o: ,f»9bn?T 9jrf# fmn , JJesftl iJoix^aiCf; fs^awbet^ oSja-jiffO
9ri;f T.Adni. - -"^rf* rfolriw l,o assart ^Ai ttf
v^ T-VJ
8V
^''].^na^rf; t^^i'i-Irjw
89r
ed.
.L'yjal'afc
• '^•biiftT ad* rioixir ■':cr hofiv
iatij 9ia$ii nidi *9%iiti jJt'-v.o I^iraiQl:
»»YiiJx»lTO'r lioxie 0oi»'ra» oJ no/.
TCOLn«iY jJ.'jrC5 0*fenAV r.o> -,)•,. ,,^ ,^ , r\
sir go ed*
-5-
of vendes to comply for a considerable period of time, held to
be a sufficient notice of an election to torminate the contract
in case of failure to pay. (i^tu.ckrath r, BrijtgB & Turivaat 329
111. 556, 566.) Service of demand for poaaession held sufficient
evidence of an election to forfeit. (Thiry v. Jdson, 129 111. App»
128. See also la re fraoy, 80 Fed. (2d) 9.) The commencement of
a forelble detainer suit is a sufficient declaration of forfeiture
of a lease. (See Clark v. 3 t evens, 221 111. App. 233, 239; also
Carlson v. LevinsojOj. 228 111, App, 104») In the instant ease there
is the additional fact that the vendor took a Judgment for posBeeeloa
en June 21, 1934, and that it accepted rent for the premises from
defendant. Payment of rent raises the presumption of tenancy. (35
C.J. 959, See. 22.) From the facts in the case and the law bearing
upon them, it ^rould seem clear that the vendor exercised its option
to terminate the contract.
But plaintiff contends that if there was a forfeiture, tho
vendor was not entitled to rent from plaintiff's lessee until poseesBion
was surrendered to the vendor by the lessee, that defendant never made
sueh surrender, and tiie pa;/ment of rent by him to the vendor was a
voluntary payment and not an att,ornment under pressure or threatb of
expulsionj that defendant "took it upon himself to prejudge his rights
and his duties and if he came to an unwarranted conclusion that his
lessor's title was terminated he should not be exoused from paying
rent to his lessor." Plaintiff concedes there are oases that hold
that a tenant under pressure of a possessory writ or threats of ex-
pulsion may attorn to a paramount title.
"The eviction may arise by ouster of the tenant by physical
acts of the holder of the paramount title, or by virtue of legal
proceedings instituted by him, or by the tenant's yielding posoesaion
to him, or by an attornment to him by the tenant while r^ .inlng in
possession. * * ^t 7^ctual ouster of the tenan^ is not necessary. If
the tenant, to prevent being actually aapelled from the demised
premises, yields possession thereof, and attorns In gooci faith to
one who has a title ppramount uo that of the landlord and also the
■J v a Binder i»
.or?M"T6
,^-i'
.rtl :
ill 3«xi«i fioiaijXoflO':
■ij&asj&r
'CUfJ t
Oil a
: iCV
'q «ii5
d ©fi;^
rlglJt to Immediate posfjession, thlg is equlvf>l<=nt to an actual
oueter. * ♦ * (Itals* ours.)
'• At t ornBieat . It is not neoesaary that the tenant should
b« actually and pbysleally remored from, or should leave, the
demised premises* for, in the absence of fraud or collusion on
his part* ha i« erictad where he attorna to the holder of the
paraiB0\int title ox takes a new lease from him under preK.sure of
a poauesaory writ or threafca of expulsion." (36 C* J. 272-3»)
*'Aeeording to the better view where a leasee y to prevent
being actually expelled from the dem^ised premises » yields the
poaeeaeion thoraof and attorns» in good faith, to one having a
paramount title to his lessor, and ? right to immediate possession.
It is equivalent to an aotual ouster* In such a oase the tenant
cannot lawfully hold against the title of such party, and he is
not bound t,o hold unla,»ai fully, and subject himself to an action,
and is not, therefore, compellable to resist such entry." (16
B. C. L* 655.)
"It is well settled that a tenant may surrender possession
to the owner of the paramount title, entitl 'd to the irnnediato
possession, and claim an eviction, without -waiting to be s ctually
eviot*?d by Judicial proceedings? i^e„is_Jlot l>o^^„Jo defend against
a^Jtitle which he_lmo?r3_m^^^ it is "also tho
well Bottled rule that no recovery of r enT can be had where the
tenant. In good faith, has attorned to a stranger entitled to tho
immediate possession of the premises, this being equivalent to a
©omplete ouster or eviction." (16 R. C. L* 950. Italics ours.
Soe also Monta^e^ v. mllahaay_ 84 111. 3S6, 358 & 359; gray v.
WMtla, 174 Pac. 239, 240 •'F~^
As defendant argues, '"fhe facts and oircurastanees attending
Gordon's attornment to the paramount title-holder should not only
legally, but equitably excuse any liability to plaintiff," On
April 30, "1934, when the lease was executed, plaintiff had boon
in default for over two years, and at that time the total defaults
approximated 1^14,000. On Maroh 5, 1934, notice had been served on
plaintiff by the holder of the paramount title demanding possession
of tho preittises from plaintiff unless the latter made good tho de-
faults within sixty days, as provided in the contract. Defendant
was to receive possession of the premises on May 15, 1934, and on
that date the period given plaintiff to make good his d efaulte
had expired without any pasrment by him. The following day suit
was instituted against plaintiff and defendant by thr holder of
the paramount title, and on June 21, 1934, a judgment for possession
was onterod against both defendants, ./hile the judgment was in
^s-
Iris:
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efxeot* defendant attorned tc the iiolder o£ tha paramount titlo
and paid the reat for oha montli of July. On July 19, 195^'., the
judgiasnt for poaatjadion •-'Jas vacated and the vendor took a nonsuita
But oa July 23, 1334, batore tho Augurjt inatallment of r.?nt fall
due, a demand xox iw^iiediate possession was aervad on both plaintiff
and defendant, ojaA on Auguet 1, 107,4, l:he vendor eoiranenoed forolble
and
entry and detainsr procssdlngs against plaintiff and def endgjat/obtain-
'Sd a judgment for posseesion ag.^a.inB!; both on Septesiber 14, 19M» ▲
Trrit of rtsatitntioa issued a^^inat plaintiff and po&eoBeion i»&s d«-
livered to the vendor thereunder* Defendant attorned to the vendtr
for the ront for the monthH of July, August, Cepteaiber and Ootoher,
19o4, at the rate of t'23o.75 per aonth, and it is for the rent of
those four moathB that plaintiff aues. That defendant acted honustlj
in the premises cannot "be questioned* He did not attorn to tha vendor
until a Judgment for posisesBion had been entered against hia, and it
is plain that he aade the four payments to avoid eviction from his
place of business* In the r ecent case of Sokoley v. Uay^Tj 248 H» T«
3* 405 y whera the faots in favor of the tenant ^ere not so strong &•
are found in the instant case, the tenant's payment of rent to the
holder of the paramount title was justified* iVfter an axhaustlr*
•pinlGR the court stated that it Tould be ine<^uitable tc hold that
the Tuidsrtenant would have to submit to actual ouster and be rele-
gated to his action for damages against the lessor, perhaps insolvent}
that an undertenant, in a position where he fiould have his ohoiee of
either paying the rent due to the owner of the fee in order to protect
his possession, or of .riving up ijosseseion, or uubiait ting to dis-
possession, and then seek to hold his lessor responsible in d&mages,
so long as he acted in good faith his paynent of the rent to tne
owner of the fee is a valid defense i that ''to held otherwise would
be to violate the moat ordinary prineiples of Justice and oomraon
sense*"
«<»-
bi.*iq has
bflfi
. oil
i^L'jia-
8« SCO
-•lot •«; .!
to taitirf* Bjrri ■'■■ ■' ■■■■'""■
, 5X
■ ; i .: ■ , . !.■■ .. . liS
' i; 0 ^.j^ (3 Id
biijc ' !-:.Ai;>u^.;'- . Xuii oi" ^fitli jaur.eiot' biX.* '■ " ^ ten*©
yiaiatiff raises anotheT contention, vhloh, if we under-
stand it oorreetly, te as follows i If th« reador suad him un«lf?r
sect 1, par. Third » of the landlord and Tenant act, he wotdd have
%h& riglit tc set off agplnct any rent olai»ed by the vendor all
payments macs'? "by him on Me contract j that the amounta paid ty
plaintiff under the oontraet "would exceed nn? amount that the
vendor mi.'^ht claim for rent, and that *henoe, if there is no lia-
"bility on th© p&rt of the plaintiff to pay rent then there ean lie
no Itahllity on the part of the defendant to pay rent to the vendor**
It is a Buf:fioient answer to this rather atrained contention to say
that it wag not raised ©r asserted in the trial c-ourt, and therefore
cannot he urged here. Kowever, paragraph Third of section 1 of the
Landlord and Tenant act a^>>plife.s only to a suit wh«re the owner of
lands sues, for rent, a purchaser in possession -who hp» failed to
oomplcte the purchase an<f the poyaeeyi on is terEiiiaated "by forfeiture
ox nonooBplianee with th© agreement, and possession is wrongfully
rofused or neglected to ha given upon d@BMfs.nd aada in "sritinj? by the
party entitled thereto* It has no appllcaision to the instant case*
\?hethar plaintiff's interpr«i&ation of parascraph Third , sec. 1, is
oorreot, or not» need not \>s considered*
The judipnent of the Municipal court of Chicago is reversed
and judgment will he -sntered here in favor of defendant for aoatr..
Sullivan and 5'riand, J.T., ooncur.
-3-
"Xmbsm »v.' ^i ,rfoiifv , rroi *i»»^koo •see
.+"i;35:--' r~
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t iisxitJLtZ httB tutrix tut
38528
SSLMA OOWSft
Appellee f
CHICAGO MUSI CI AITS* CLUB,
ft corporation.
Appellant.
APPHAi KiOM iroiacii»AL
COURT OF CmCAGO,
1
28 5 1X592
• IRiSSIDIHS JUSTICE SCANI-AJir I)3LIV1!B3D TH3 OPINIOIT 0? TH3 COURT*
In this action in contract » tried by the court without
ft juryt the issues were found for plaintiff and her damages were
assessed in the sun of tlyOOO* Defendant appeals from a judgment
entered upon the finding.
PlAintiff*8 verified statement of claim alleges that
plaintiff is the sister of Hugo Conn, deceased; that he was a member
in good standing of defendant! that he paid dues as required by its
oonstitutioa and bylaws "and was fully paid up at the time of hie
death;" that defendant's constitution and bylaws provided that upon
the death of an active member the sum of il,000 "ehall be donated
to the family of the deceased member i" that Hugo Conn died on April
7, 1932, while he was a member in good standing, and that defendant
was thereupon obligated to pay plaintiff the sum of $1,000, but that
it wrongfxilly refuses to do so*
Defendant* 8 affidavit of merits denies that Conn was a
member in good standing; denies that he paid dues as required by
defendant's constitution and bylaws and denies that he wae fully
paid up at the time of his death; states that on the date of his
death and long prior thereto there were in full foree and effect
certain bylaws of defendant setting forth and defining the re-
8£:38£
JA<tI0rKDM .
,CK).\0IKO tJO TJ30OO
^Se5.A.l5 82
■-^- mdm
<0 Jt
♦ TfflJOC L3iT -^0 HOItlKO fcET (IEJ?SVIJg<I 1AJSIA08 KOITSUl «IIICia2>?5 •J
©tew eesfuoab 'isrf bns lixjnijsi
*flt (SO lit alsacrqa dosbne
»4k»m It a£<
XltqA n« fxfib oifoO Oo9«H iailj "jtedEteia Beasaooi) oii^ 'io "viIJtHia'i 9ri;t o^
ifid^ iifrf ,CX)0,X=i to m: . ■ iittlxsX.. ja^jlXoo noqws-iftrii aaw
aiil ^0 i*.,b wii^ a. v* .-:. -. i^- , - .. . -, . ^^ ^^^ j^^^
-2-
quirements, rfuties, rights » privileges and "benefito of ttembera
of the organization; that sections 14 and 16 of said loylawB ar«
as follows:
*Sec« 14 ♦ Dues, (a) Membors must pay their dues In
adyanoe and obtain receipt for the same* The dues hecone due
and payable, quarterly, on the first day of January, April,
July and October. If not paid for current quarter before the
first day of March, June, Bepte«il»er and December, respectively,
they shall automatically stand suspended from all rights,
privileges and benefits, and if not paid on or before the last
day of each quarter, they shall be erased frosi membership* *A
MSMB7J? VHO STAITDS ?5I3BP^FD?';D IS HOT lU GOOD STAITDIKG AITD AL30
HIS FAMILY LOSBS IHS RIGHT TO THE DfiiilH MUATIOH PEOVIDi^iD FOB
IK SiJC'flOH 16, IBT THS ETSFf Hl^ DISS -^'ITHIU iniTETT DAYS OP HIS
EiSIirSTATlilEifT.» * * *"
"Sec. 16. Death Donations, (a) On and after - pril
let, 1925, upon the death of an active member, except as herein-
after provided for, who at the time of hie or her decease, held
full measibership in the Chicago Musicians'' Club for at least six
consecutive months iminediately prior to his or her decease, the
sum of One Thousand ('^1, 000, On) Dollars shall be donated to the
nsmsd beneficiary or beneficiaries or the immediate family of
the deceased member, as the case may be, according to the
provisions contained in this section of the by-laws; provided j
however, that the said donation shall not be paid unless the
deceased member HiiS BSISi^f IK GOOD STATOING fOR AT LSAST HIIT^TY
(90) GOSSEGUTIVE DAYS IMMBDIATSLY HiJGaiDIirG HIS OB ff-'lB DWATH.
The affidavit of merits further states, inter alia, that tht de-
ceased did Bot ee»ply with the terns, conditions, reculrements and
conditions of the constitution and bylaws of defendant) that under
section 14 "the dues for the quarter consisting of January, February
and March, 1952, became due and payable on the first day of January*
1932, and must have been paid before the first day of March, 1932,
to prevent suspensioni" that deceased did not pay his dues for the
said quarter until Maroh 5, 1932, and that by reason of his failure
to pay hi8 dues before Maroh 1, 1932jp he automatically stood sus-
pended from all rights, privileges and benefits; that on i^pril ?»
1932, the date of his death, he had not been a raeidier in good standing
for ninety consecutive days, as required by section 14, smd , there-
fore, his family and plaintiff lost the right to the "death donation,"
and plaintiff is not entitled to recover.
-8-
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v'jeaniaa
xe «TpaVunn j-iVjLJos fTfl .w ..V . .- --i;^ ttoqu «8S?X «JaX
■t r.
-©b trf* ip-ti-J iAikLJI^lMl ,a»*«it3 asxCtTMl a*ii»« -io i trmhltts sdT
teur «ixi6i»iii;i9i tenoK^bnoo .a«rt©d «^rf;^ rf^ i« Tl^atoo Jo« bib b»«*,©o
T»&iUi iisifi t;-rf<f:.'3^iP'. to ^relTCf bn.-^ neUir^r^eco:) »di 1o «noi^xi>noo
,,:T.urn«T. .. V- -.^- ..--. ^-- ^^^^^^ ^^'^^^ ^««
8CtI xloxesfc ■'■' '■''pvi->f' M^-i<^ nws<i «»v*7fl JtewaJ b/iu eSCeX
•dJ lol oeitfb bx.. ,,>s -- ' "jnoicjnetiBua *n»T9««i ei
-sue boo#a -{J.let>ki^oiuz ori tS£«l ,I rCoi/^M ©i^lerf 8»ttt» ftiri "«»«[ o*
yiibfiAd« bo«» III i»<lB»« « noad }ov -.. ri art .tldoe'o aJti to a^^fc «ii« tS59I
HOiiBtiob riJiflb" «*ri3 0* ^ili^l'x ori* isdX %lxJrri«X<j fen* viXiw^t atA ,eTOl
TlM o&se vas tried upon written stipulated facts and
certain oral and doounentary eridenoe. The written etlpulated
facta are as follows t
*!• Tbat on December 31 « 1931 » and for a continuous
period since tbe year 1908 » Hugo Conn \vas a meaiber of the
defendant f Chicago kusicians* Clubr a corporal ion» and that
prior thereto he was a meubsr of the Chicago j^'ederation of
Mttsioians continuously since March 15 » 1899*
"£• That OA January Ist, 1932f there hecaMe due and
paya]»le froa Hugo Conn to the said OhlcRgo Musicians' Club,
quarterly dues for the quarter Including January t S'ebruary and
Karoh 1932 t that the said quarterly dues for the period of
JfiLnuary» Tebrviary and Uarchy 1932| were not paid to the
defendant, Chicago Musicians' Club, until March 5, 1932|
that the quarterly dues covering the period of April, May and
June 1932, due and payable on 4pril Ist, 1932, were paid by
the said I&igo Conn to the defendant, Chicago Musicians' Club,
on the due date thereof, to-wit: prtl 1st, 1932, and accepted
by the said defendant, Chicago Musicians' Club; that thereafter,
on, to-wit: \prll 7, A, D« 1932> the said Hugo Conn departed
this life.
"3« That the plaintiff, Seloa Conn, was and is the
sister of the said deceased, Hugo Conn, and if any death donation
is payable by the defendant by Tirtue of the death of said Hugo
Conn, the said plaintiff, Selsa Conn, is rightfully entitled
thereto."
Sefendaont contends '*that the failure to pay dues befors
the first day of the third aonth of the quarter for which they
are due, autoaatiaally suspends a aesber, and that failure to
pagr hefore the last day of the third month of the quarter for
vbieh they are due, results in loss of mesaibershipi that a meriler
whtt st&uids suspended for nen-pajrvent of dues nay reinstate himself
in good standing (except for the purpose of pE^mient of the death
donation) by paying hie dues before the last day of the third month
of the quarter for which they are due; that upon such payment beinc
80 made, sueh meodDer will become eligible to hare the death donation
paid in ease his death occurs more than ninety days after sueh pay-
ment;" that under the undisputed facts in the case the finding and
judgment of the trial court are against the erldence and contrary
to the law.
Plaintiff, in the trial court, contended that defendant
SBwoXIot as •%£$ 9;^«S^
, - _ < - . ^. . ; tcfifX::) '_ . ^
exf* ei fiiM? a^vf en«o'? .9«£92 ^lliSflieXq »ri* *<ftaT #€"
r:--- "-^ ■ ....--. -r . ^y r.,.,.. ^^jjio;
,"!' ' r t
oi o-xisltat iJBJri- ^ x&dis®!;: « ebiiQqajL;» v,XI -.'Xis «»;;■
to It t&daaflp 9il* 1© dinot& httdi &tii lo \, olscf x«q
Iftifttf ^MMB^iMi rfoi/8 noqu asrii \&ub btb •v;ex(-'t rtnht . .0
fiol^Aitob rfla«b Hdi stacI o^ •Xrfi^il© 9«oo«>! .f '^r?; «'^ffr , oa
-4-
had valred the requirements of sect ions 14 and 16 and wag there-
fore estopped fro« clalminp forfeiture. In eupport of her poeition
plaintiff oited to the trial court Routa t. Royal League # iifA 111.
App« 152| reeently deolded hy thle divieloa of the eourt. The trial
court BUstainec^ plaintiff's conttrntion and held that the Routa oae«
gOTerns the facts of the Inetant one* In its brief la this court
plaintiff adhered to the position that it had taken in the trial
court and all of its points in support of i.he Judgment are b«sed
upon the aBSumptioa that defendant waived the requirenents of
sect ions 14 aad 16. Defendant, la its reply brief, ehov8> froa
undisputed eTidenoe* that it had at ©JLl times enforced the preri-
slons of sectioas 14 and 16 and had never waived any of them} that
while the deeeasedf on a number of ocoasionsg was automatically
suspended for failure to pay dues in acoordanoe with sectioa 14p
it appears la each instance that the euBpensioa was removed by the
payment of decedent* s dues before the last day of the respective
quarter for which it was due, whioh was in strict compliance with
the provisions of section 14. After a eareful examination of the
record we are forced to the conclusion that there is no quest ioa
of waiver involved ia the instaat case. Indeed, upon the oral
argument plaintiff* e counsel was forced to abandon the waiver con-
tention aad to taie e new position, viz., that sections 14 and 1€
are amblgiioue» and that therefore the provisions in the same, upon
whioh defendant relies, should be disregarded. Because deceased
was a member ef defendant orgauiizatloa siaoe 1908, it seems imfor-
tunate that plaintiff should not be allowed to recover the death
donation and we have therefore given this new contention serious
oonsideratioa, but we are unable to find that there is any ambiguity
as to the provisions in sectioas 14 and 16 upon whioh defendant relies.
Ia additlea to the fact that the deceased was bound to take netiee
of the constitutioB and bylaws of defendemt, his meoibershlp eard»
ofttiMK^ Bfim has: ?i ba, icfoaa 1* Skismaiillup^r pAi .tifiri»w luUL
• III ♦•V^ ijyflfc3»J__X«sefI .T ji4iJ05 iiJLTOo l&tzi ajAi oi b»iio IttialaJji
■»7l ,«e«oc(a «
erf* 1© ftoliBttiaxRxv
b(»«ii*9i»i> mauatfiSi .bdbi>^9%
:idi t»TOO«
sllitiv . nt9b iAtAn croqr ai ft;
JXi;^;
■\.'^>i
■ ■ ■ >«
.. ■ , A'dl^
. ■■--j.vi;. ;i;r. in. .1 ^ :- .• J . '.ill v J £A« tO
which htt had to oonetantly carry, had upon ite face ths follow-
ing. In capital*: "WWiimS 'VHOSS DIB3 TOT^ CUJTR^.BT (^UAHT/DFi ARS
BOX PAID KiPORl! THS FIRST DAY OB* MAIiCH, JUlJTi;, s;^PT. AFi) T)KC,
STAJED SOSF:iIDE!Q," and upon the rsyerae aido of ths card appears,
in oapitala, tha part of aactlon 16 heroinhofora quotod. The
provialons In auctions 14 and 16 upon whioh defendant relies
ar© also printed In tho bylaws in eayitalB. In the Inatcint
caaa th<s payment hy the deceased oa Maroh 5, 193<J, of his due«i
for the first <im-^rter of 1932 autoaatioally reinstated hiai to good
standing In the elmb, hut »s h« died within the niaety-day period
fixed hy sections 14 and 16 his hsneflclary was precluded from
recover ing the •BSATH DOHATIOH PROTIFilD S-OH XS SliCSlOS 16 •«
While the prorieioae upon which defendant reliee appear hard,
especially la a ease llJce the present one, where the dec^aeed
had paid his dues for a great many years, and where, but for hie
death within the ninetyday period the "death donation" would
have boon la force, nevertheless, the provisions la question are
a pairt of the contract between defendant and the deceased, and we
oannot olmnge them*
Ihe trial court erred in finding for plaintiff, and ag
there can be no recovery under the admitted facts of the case, the
Judgment of the Municipal court of Chicago is reversed and judg-
a«nt will be entered here for the defendant for costs*
HHSiS IPCB mrn^^TIDJ^ST FOR COHTn.
Sullivan and Priend, JJ«, concuro
-R-
'-w«XI»^ »rf* ^O!"!" «^i ne(rw fc.«K tTtife^a TrXjr«0*««©® ol tuBrf aii tioiliw
.oar t.Tif-'. . . "*TJT. tEc
so lie. T .Toebcw^-'^' ift!.r-
ilAl'Mq -^ftl»^;*t fibrin ftil? aW
*,b£ HOITOPr
ihmiet T*4»<ic[« BSiXa'/ J n »ijrc& i& t liolflvj noiiw anoiKivciq ©cti »£J:jav
bZiC -£01 tv€ ,«T&4
&v hiiji ,liea0»«9i) »ifi bix£ iat>'
lid* .MAO rric; io etc.: '■
vi> sire 6iB^ fcAU
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S8567
AHSRICAir TRUST k SAJR3 DEPOSIT
COUPASY, as Tru8t«6»
Plaintiff,
T.
SHSBMAir GARAGE COIIPA^ et al.>
Defendants •
H« R. tUOstrnMAS et al.>
(Interrening Petitioners)
Appellants*
HOBIET BASS et al.«
(Interrening Petitioners)
Appellees*
APEBAL FROM CIRCUIT
OOBRT OP COOK COUUTY.
28 5 1X593^
MR, PBESIBIVa JUSTICE SCA19LAN DSLIVHE^D THS OPIHIOH 07 THB COURT*
This is an appeal from an order denying appellants' aotien
for leare to file their interrening petition and also froB an order
denying them leare to file an amended petition*
In 1928 three 99-year leases vere entered into lietveen ths
Bass estate* Bross estate and Thomson estate^ respeotirelyi as
lessors* and Oeorge Brumlikf as lessee* Brumlik assigned the
three leases to Sherman (rarage Company* a corporation* in 1929*
The three leases corered certain property in Chicago* upon whioh
the lessee was to ereot a ten-story garage building* The cost
of the building was partly financed through a $500*000 leasehold
bond issue sectired by the building and leaseholds* In 1930*
American Trust and Safe Deposit Company* as trustee under the
trust deed securing the bond issue* filed its bill to foreclose
the trust deed because of certain defatilts in payment of interest*
rd8««
,.uoy aioc
e85,A,l58S
•smtyim
■00 ScOi/L'.L'.l) ISUJiHEKa
.TOTOO EST 10 KOITfl^O SET CCSMVIJiSd TaA^tAOB &OI'r«UX ©MI<:rrf:if»I ♦ fM
insXX&qt»~ t.— V
itst.
.j.>/ ^iii
€iiJ b^tXiikuBO -AiLsvxS. .sienesX cti> ,jii.XjiUj'jcJ. as'xo tSiOQUoI
• 9S0I fli (CoJt^eioqLioo a ^xn^qwoO os0tjs{) tt«Bxx»iIfi OJ as»94rt©X ee^io
tO£9I fii «abXo£{e8soI bii« jjolbXiud arid \';if faoawoss susel bnoa
.3*
smd Chicago Title and Trust Company was appointed reoeiyer of
the premiaeB. On July 8» 1931 » a decree of foreclosure and eale
vae entered in the cause* and on March 7» 1934* lUlo J« Xlusty
was appointed successor receiver*
On December 22« 1934| parties representing the three lessors
filed their interrening petition in the foreclosure proceedings »
alleging certain defaults in taxes and ground rent* and asking that
a decree be entered that the various leases were lawfully terminated
and that they he set aside as clouds on the title of the lessors f
ete* Sherman Garage Company; George Brumlik; American Trust and
Safe :0epo8lt Company > ns trustee under the trust deed foreclosed}
i^merican National Bank and Trust Company of Chicago* successor
trustee) Bondholdere* Protective Committee, representing approxi-
mately ninety per cent of the bondholders, and ten non-depositing
bondholders, were made defendants* The petition prayed that any
bondholder who so desired might appear and defend* Of tbe ten non-
depositing hondholdera five were defaulted for failure to appear and
the others were dismissed out of the proceedings* Answers were filed
hy American national Bank and Txtist Company and l»y the Bondholders*
Committee* The cause was referred to a master with directions to
take proof and to report the same together with his findings of fact
and recommendations* Ahle lawyers took part in the proceedings
before the master*
The master found, inter alia, that on June 5, 1930, Chicago
Title and Trust Company was appointed as receiver of the three lease-
hold estates and of all imcprovements , appurtenances and personal
property, subject to the lien of the trust deed dated June 25, 1928|
that said company resigned as receiver and Tlusty was appointed suc-
cessor receiver* The master further foirnd that the rent in the
"Bass Lease" was fixed at $6,250 for the first year and three months)
«s-
lo -raTieosT bBiaioqqs saw -^cnaqflttJO dewtT inm sId'iT «»eoiilO baa
9lMa ba4i o«/aolodxot le cetoeb e ,X5«X «S xX«^ «'^ .a»«iJB©*xq; sd^
X^auli iL f>
LFJ) {
be*anifliTe* \IXw1^j»X ©lew aeaii&X ayoia.-: isdie^fr -;:asb «
,8ToaaeX ari;! "io sX*ld sri* no obrroXo c..s faisittfi ^^es G«f -^dU- v*£f* bnc
ifceaoXoatc c oq©<^: »t«8
8iii;^i8oqeb-no« flf- ^ ; teMarfbrro ,':3 wriixi ^Xs*jaa
-non fuj* '^rf'* ' * hr -
L i5 &Xod bno«r giii J' X e oqe fo
-»B/!eX oeiilJ £.£1? lo loTleoei ajsj be^clo' \;n^qaoO taatl' iuao t)X«fiT
XairoeTeq brta aaonscftdrctfqqjB tainsmevoiCiaJ: XX« lo 5iis a^i^^es bX<M£
]6SfiX «8S dmrX beicb bd»b Jain* wft^t lo tt«i:X exi* oJ ^yaj^cfwa t\c^'J:eq««q
-5-
#7pS00 for the suooeedlng nine Bonths; $10»000 for each of the
next three years; $12(000 for eaoh of the fire yeara oommenoing
February 1* 1933* and ending January 31 « 1938) $14,000 for each
of the fire years eoniQenoing February ly 1938 » ajid ending January
31« 1943, and $16»000 for each of the remaining eighty-four years;
that the rent was payable quarterly in advance j that the rent in
the "BrosB Leaee" was fixed at $3«125 for the first year; $3»750
for the succeeding nine months; $5,000 for each of the next three
years; $6,000 for eaoh of the fire years oommenoing February 1,
1933, and ending January 31, 1938; $7,000 for eaoh of the fiye years
comisenoing February 1, 1938, and ending Jantxary 31, 1943, and $8,000
for eaoh of the remaining eighty-four years; that the rent was pay-
able quarterly in adTanoe; that the rent in the "Thomson Lease" was
fixed at $5,000 for eaoh of the first fire years, $6,000 for each
of the next fire years, and |8,000 for each of the remaining eighty-
nine years; that the rent was payable quarterly in adrance; that
each of the three leases provided that the lessee woiad pay all taxes
and assessments, general and special, levied or assessed upon the
premises or upon any buildings or improvements at any time situated
thereon, or any levied or assessed upon the interest of the lessors
in the lease during its term, all to be paid before they become de-
linquent and in any case in apt time to prevent any sale or forfeiture
of the demised premises f that each of the leases provided that the
lessee would construct a new building, not less than ten stories in
height, on the premises, suitable for mercantile, offioe, garage or
commercial purposes, etc.; that by a certain section in the Bass
lease and also in the Bross lease it is provided that if default
should at any time be made by the lessee or his assigns in the pay-
ment of the rent t^hen due and such default should continue for thirty
days after notice in writing thereof to the lessee, it should be
Mt4 lo dooB lot 090, 0X$ \miJaom i>txLa ^J:|)d9O0Jjet &di lol ^^^f^
ifo<ae tol 000, ^X4 t^9l «X£ -^^^hbL s^lfms i>na «S£^X tl ^Airxtf9|;^
XXatfosL iAi[:i9[& bxis tS^CI (X "^ijau'xcfd'i: B^i^nsiaaoo axi^^X •Til MU.!^
|M>^X i»c}-v3rfiii9 T^ainism^t ed^ lo ifose xo^ 000,8X^ bfta ^^^91 ,X£
n^ ia9'i sdi isdi leoasivbjs ai xiieixsivp eliS.^XBq, B.av ^fi-'i: siltf iedf^^;
94r«€| iTsa-^t Jatll sxi* not 3SX«£$ *ii bexn aew "ecissa eao^fi* •££!
Q00tB4 bus t^^^^-C ?-JtS xiAunsT. -^Ibam biu? , - <r v'x«yatf®'3: 8aJtonj&£yB^9
-■^K ■JMf '«»^ *^^ ^^^ laiaex ii/ol-^«n: is ,n^ui«iiiei add 1:o j^obo lol
ftSir "soiseJ: nooxaoxlT" sd^t ni Jri»i oilv " '. . aonavbjo x:i ACXxa.*XJ5tfp »X*|^
daa9 lol OOOtdl tat^sex ©vil iBilt mii lo ^osj® xqI 00u«S# i-a baxU^..
iadi jsonsvbfl nl xXteiiewp 9X«r«X=*<I sistj ;tHffi-£ siii ;Ji5£[ci ia'su?a''j ^'I'l^'
»3to* XXo ■v»<I bXwo'.^ sesBsX sri^t ^l-aifJ htt-xvotq eee.saX e^'Oit itdi lo Moj8«
Bve)9a«X ?rf^ "^0 d-s^T'tnt orf^ Kocrc b(jnr©.t;aj3 lo beivoX x«9 'to ■tJSootcerf-J
•«k »jitr>nf:' , •"•■ i' 3^1 \,i%xt^b ©asoX ®il# «Jr£
9dt ialt beblvotq aeaasX edi to doa^ # •'•r-< ;«9?;l:Hi»iq b©«nxBii*b eA* t©
ftt (I«J;t«^« eft* KBdi ^b^/ -"' * -nlfaXiMC .jf ■>- i'oU'niutioo hXwow «»«a©i
^ 9J^ftiM% «si«nflo icXi^rm-i ' '' - Xtfe^iua ,a98iKS©irq ©riv*- mo ,i}ii,^,jt»M
J It; ■' iiidi bf}btToi<z -'- '>i"'" n^ <>sXi- bcj» daa»X
-X«q 9di iil analaaa ?ixrf tto soac;i.I oxii 40' stsia »d omii xk» *« bXiroiIa
;*ii^* lo'i oiMil^aoo blBodo iiaaljb rfoua baft 9Ufe ««ii» *it»'x wA* *o ^n»'"
-4-
l&wful for the lesBor bo declare the term ended* etc*; that the
rhoason lease contains a similar section* The master further
found that at the time the petition of the leseors ^aa filed the
lessee under the Bass lease had defaulted as follows} Install-
ments of ground rent of ^3»000 each* due Hovember 1, 1933, February
1* 1934 « Ifay 1» 1934, and August 1, 1934, respect Irely, and that
nothing has since been paid thereon; in payment of taxes as follows*
A bal&ncs of ^ 2, 994 #13 on the general real estate taxes for 1929}
a balance of $501*86 for 1930; a balance of SU, 277*28 for 1931, all
i?ith penalties and interest thereon, and a balance of ^^1,740.13,
with penalties and interest thereon, of the first installment of
the general real estate taxes for 1933} that the second installment
of the general real estate taxes for 1933 is |2«720«52; that at the
time of the filing of the petition the lessee under the Bross lease
had defaulted as follows: f<l,000 baleuice on an installment of
groujid rent of $1,300 due oa August 1, 1933; installments of ground
rent of $1,500 each, due on JJoTsmber 1, 1935, i'ebruary 1, 1934, Hay
1, 1934, and Aiigust 1, 1934, respectlTely, upon which notching has
been paid; in payment of taxes as follows: A balanoe of v650«33
on the general real estate taxes for 1929; a balanoe of #l,092t02
on the 1930 taxes, and a balanoe of $779*05 of the first installment
of the 1933 taxes, all irith penalties and interest thereoni that th«
second installment of general real estate taxes for 1933 is $1,394*35(
The master further found that by reason of the aforesaid defaults "a
notice was prepared by said Robert P* Bass, et al*, as trustees,
Joy
and^John A. Bross, as lessors, dated August 29, 1954, pursuant to
the prorieions of said leases; that said notices were signed by
said lessors and related to said defaults in rent and in the pay-
ment of taxes) that said notices were addressed to George Brumlik,
Sherman Garage Company, Kilo J. Tlusty, receirer, American Trust
and Safe Seposit Company, trustee, and to All Whom It May Concerni"
ojrf? inxlv «hsbn6 iRia* Bits »T*l3sf> c Iwlnwiil
9di bslil. .. -. :C£iii&xi ©riir 9.,;. Ms bOut^t
"llsianl tewoXIol axj I>©*Ios!l:£v5 bad 9&r.8X pb^^jS. .e'S ^sftui; ssseftX
;.:,.. _ ..... •=>-- '■ ...-.,. ... .... ,... , :rf A
t<5X«0"w/ '.0 9onf.Xriv. .h on.:; ,auL.ivJii;J tfae'is^^fii bme, t3&£#X«Jn»g; iltfJbr
;^n90iXXn;fBnl .'^noose oiiJt *J3XIJ i i.iStfX lo^ asxa* s*a#a« !«♦*£ X^Ttsnss »tft
9ri# ia iMi 4Sfl«0gf,S^ jji: f.SCX xol eexBi e^fl^as Xsotr XB^xenaB erirf to
88fl&X ssoiff axid idftflw esB8»X ©xti* noltfi^en &f£* lo S^-tXil off* to oafi;^
ro ineESllsiisnl rrr. no 9on;3l««f OtK>,X't :«woXXol Bi< fo»^XKi3t?.b f^ari
^niioia lo c;^nefflXIs*3Xii i5f.«X ,X #ftyswA ei& huh ©oe,£$ to itiiea olisrdts
. 44i ,*eex tx T- Jjio.,''. ,f.c.CX eX ledHovoIr'. rto «>it;l> tit&ii# 0Ue<X<5 lo dn&i
cMl aiiliI.;on Aoidv noqu tXlt>rl4o»%a&'X «^SSX ^X ^vju^iSi'- bass «^£«i IfJ
; eoxi^X . .-.sT^jiii to ^n»iiEr^(5t£ «i « bisg H0«<f
ao»St^rX!^^ "to eo."«I^-c.^ i5 ;e2f?X 'lot q«x;j^ ©i^vJ-ii© Xx^sx Xiiitsnog 8iS# J*
;^c»BXX'iiuri J«7.i y eOtSVV. io fionisXstf jj fo«« to^x®* OS©X S'Xl* H*
eii* ii-^-.;^ jnoBiarii ;JeP-i6*«j; biw. aeirJX«»inoq dikff Xli?. ,Q©xjB*r fifiCX *il* 5«
0* iuAUP.xUii t^sex , ^ .. ;j ,.; .-.;.>. ,^aoaa»X as ,a80'£ff .A tisioZSjUm
-Vq ori^ ^' ' ♦^n* "^ '-i eiiXips'U'b ixi-^ 0* be^jsXsi Ut)i yroaeaX fciaa
,j(iX«i;i« »a'io*-' "^ .,.-..- .-3.^ aftoi^Oii biaa ;t»ji» aaeauait to *£(«b
•fffMoseO x>M *I omCV XXA 0* btui ,»»««m# ixns^poO ;»Xii«q«a ttsfi Am
-9«
that Bald notices were duly eerred upon each of the persons to
Y/hom they vere addressed and were also duly seryed upoa /^jaerleaa
National Bank and Trust Coaipanyt as successor trustee} that there-
after said d 6f aults not haring heen made good ';7lthin the period
prescribed hy the lease the lessors elected to declare and did
declare the deaised tern ended. The master further found that at
the time of the filing of the petition the lessee under the Thomson
leass had defaulted as follows j Installments of ground rent of
§1,500 eaoh, due on January 1, 1934, April 1, 1934, July 1, 1934,
and Octoher 1, 1934, respectively, upon which nothing has been paidf
In payment of taxes aa follows: A balance of •" 711*89 on the general
real estate taxes for 1939; a balance of v613*30 for 1930 | a balanoe
of $244.19 for 1931, all with penalties and interest thereon, and
a balanoe of $870.11, together with penalties and interest thereoni
of ths first inatallmant of the general real estate ta;ces for 1933 1
that the second installment of general real estate taxes for 1933 is
01,360.31. The master further found that by reason of the said
defaults and pursuant to the proTislons of the lease a notice im»
prepared and signed by l^ew England Trust Company and Orrin 0. Wood,
trustees, as lessors; that the notice stated the defaults (hereto-
fore referred t©)j that it was addressed to George Brumlik, Gherman
(Parage Company, M. J. Tlustyt xeoeiTer, Aj&ericaa National Bank aad
Trust Company of Chicago, successor to imerican Trust and Safa
Deposit Cosqpany, as Trustee, and was duly served on eaoh of the per-
sona to whom it was addressed and was also served on .jaerioan Trust
and Safe Deposit Company; that thereafter said c sf aults not having
been made good ^jvlthia the period prescribed by the lease, the lesdors
elected to declare and did declare the demised term ended. Tlie master
further found that "neither said Sherman Parage Company nor Georgo
Srumllk, nor the receiver appointed by this Court, for said leas*-
nsoiff^w-' noqu bsTi'^a \X0i> ©el.^- i^s &d8!e&'si»bjB ©n©v y®^''^ laoriw
boiieiq cri^ tiM^iw bOQg sb&m nsstf sfi^Vjsxi doja ai"-lij«*!t» 1^ bi^ss i^itj?)
bib bnB sislosi o^ fce^oeXs 8Soao»I sri* ©o.f5ei 9iij:«r xd i>s«ri'£OB?>iq
... ... .. ' .... ;: ruy1--;« :<Atl ■-- '-s x
\btsq ai>Oi. i«:i ^iilr.. -i: ^iyiX- ,-iOTiJv^Q.as^ t/^uVi , .- '-titfoioO J«m)
X«ien0S feii*^ no Ga.Il', :avroXX«; >'K©ErY;«q ai
e«n«I««f J3 iOeei reel 0£«fiX#ii; 3to 9oxisi>.(i « seSt'X 'jeos a&x&^ r.'«B*a© X«»a
fcne ,aoe"Xfcr;^ *a©S9*ri iJlsncc Xi« tX^^Si tot ^X^I^I^Sv lo
^: asxei sJ^^ia© Xs©i Isteaei^'m^^ lo ^e;5«XXad-ei-ii #8^X1 £xt# \9
b1 S<5«X 10*5 Bsxi;.) viiir. I3isa©«& ^o d^asBlIX*4©ai: focoof^a tdi i^sit
bim edi xo no J^HiH exiT *XE»06C,X|
»!sw §«i3on j« **riAr . . oiiUvo-sci a^^J" oi *Hij|f«'XJtf<i &etc o*XaiaTt©6
..z<^dP. ,3iiXfiu;'£fI »ano&i) o;t bsaeattbExf: . : . : ( 0^ b0*sx«lea *to3t
:;/{.. :,niS[ XisnoxJ/iK n.solTOiit ,"?Ti.rjo8x ,Y.*ai.i . . . .*i ,^ttr>qpwoI^ |tj|«tO!f
aTOfassX e«£* ,a?:/;eX ndt \<fl bdtfltoa&^ci ''^'•i' : ■'':: fjooc ef>flffl iif»«»^
tSS0»i) iea X^iA^^O B&^ifiC Oisffiisifa dtisa ^tsiitiskr" iaif;! [^fwol 39x1^ tin
.6»
hold estateef nor the trustee * * *, nor the "bondholderB nor any
of them, not' eny of the other defendants to said Interrenimg
petition hay? tendered payment of any of the auraq 'ihloh are In
default and no redemption has "been made by any person from such
default." The laaater further foimd that the interrenia^ peti-
tioners, as a group, fead mpc^e th« following offer in open court t
"1. To pay the sxim of :' 40,000 into court or to the
reoeirer of t]i« court as the Court may direct to he diBtributed
pursuant to the '!ireotionp of the Court to and ajnon/? those
interested in the leanehold or to such of then as the Court
shall find entitled thereto?
'*2* To assume and agree to pay all unpaid and future
accruing taxes, which in said laaoes the lestjes covanantsd to
pay , and
**3. To release and -waire all claims ^hich they hare
against said leesee, ^Iherman Gt^rnge Corapany, and all persons
holding under it or as successor to it»
"PTOTidedt howeTer>
"I* That, upon the makiag of suoh payment > the Court
entf^r a decree vhlch shall find that the term of ee.ch of se-id
three leasehold estates has heen properly terminated and that
there is no farther rlc::ht, title or interest in and to said
three per eels of landj or the lauildine, or any part thereof in
said C-eorge ;3r'.Mnlik or in said Sherman Oarage Company as lessee
or in any persons or corporations holding under him or it or us
successor to eith'=;r of theaj
"2. That the said decree of this Court shall ouiet the
title of^ the gsaid three lessors respj^ctiirely in said land and
building!
"St That the said deoree shall direot that all money
la the hands of the r3ceivar of this court, liilo J» Tluaby, 1'333
hie expenses and proper fees as receirer, and less the sum of
i^2,400, 'Which iatoor sura shall "be in aJdl«iou to the v40,000
offered and mentioned in Paragraph 1 above and shall be used for
the name purpoedf3 15 tharein sat forth, and all personal property
in hie poBseesien as such receirery including all office fiu-nxture»
equipmeni and isujpliaa, aid all laajhi.aery, tools and other equip-
ment used in the operation of the garage and repair shop, in s^iid
doralse'l premies, and all merchandioe on hand, including tires,
gasoline and oil, and all bills and accounts receirable, be paid
and delivGred ovor to the o^^.d lessors .-'.a a group, and the raid
lessors shall assume all accounts payable of ths suid recaiver in
the oparation of the garage liUdin«ss in the dsaaised premises? and
that euoh delivery and settlement by and with said raoeirer be
aials al the time of the dseree**
The master estimated the expected net income from ihe premises at
$48,60C annually, and th:>.t there ahould be available therefrom for
past due indebtedness on gro\md rent, taxes and for dividends, the
■^. \BblodhtiOd edi tcoc « " j ^a£*^*0O b/o£{
galnevTslnx 61x58 od aittp.bn^'ifib tax ? "^o
rfoiXB noil noa'csq -^na \:ef eJ&fic need" ntiti noiJq^r lbf|4i /^Xtf«^t
ejl* o^ TO ituo^ oiai 0 ^ Jiss ^di y^sq, o'- «X
QYBd \,&Ai doidn qolxsLo lla avi^iv has- ^?>«#Xst
,^©Yswo£l ^babJtvoT*!''
txvoO oxiw t*ndci\aq fi- ttiJiBxa &dt flO'.-^tr ,,1«.*fT , X"
btse lo doo "lO ta-.t'i'i J bntl Up:
iedi f.ns bt ii^inimxei , at)&a 3.^\d
bi*»a o^ nn.-n nx ^asisiiii £0 eX*i^ ^i£:i.ix H'txiii^
Hi looiori* f~"r ^-hj:- to e/riM-tird" -••i?i to tbt>BL to
ai- -io jfx.r
:oq;ac'v TO ■
.xri,3 to ©e-xoe-b bi?a axir d";rii
. vxio^qatJT si'CtusX fcsrcilj rx'r-3
tt4» :io ix TO
■:di
.' -a
•xo
ToaRcooiifa
H
to 9ini
i^tfkbLta^
^O
«»
bi
rib LLBfiB ee"x-
. .isoaa ips asel "^eii'
fi b©HOi
< ' : ;1;^ &" (.c - .
X ^tsevie-jet tvaUH b& noie
i :•. -n- XI.,} ::.-.3 .;>::. iX-,-; >;n
IXi^ biis tile
baietto
»« -X0YX
3fx» ^a an
U':x stAJb imaq
sum of $13 t 600* The aastar further found!
**rhc)t where i.3 past due on g-o'ond r8n(» apjjrexlttately
t40f000t "whioh If amortized over a period of five years would
reduoe the net r'Sturn vo ajti^roxuaately v'^>>6'J0«
"That a group of inrestors haro aabiaittad a proposal
aulistanfcially emibodyiag the following provisional
^(a) That a nevr lease he granted to a new corporatlea
BUhBt':'-nt;iplly under the termti and provisionb and for the
unexpired period of the previous leaseei
"(h) The InTestors to pay to the owners of the fee,
the full aHiOunt of general tsxes nov: p&.t;t di^e, including general
taxee for 1933* for ^hioh aaiount the investors will take eix per
cent preferred stock Bxif^ approximately one-ouarter of the cozjhon
Btoek) the oalanee of the eoKunon stock to he issued to the holders
of the honds secursd hy the leasehold icortgage.
"That there heloi only approximately ,5,600 avallahle
for dividends on preferred stock and on cosamen stook, it would
follow that there -o^^ld "be »^v liable to bondholders appro:.:!-
■ately ;|3,'>J0 per year in view of the fact that the ground rent
is increased by #5,000 In the ya- r 1935} that unices tihsre is a.
corresponding increase in income coininenciBg with 1939 there would
be nothing availpble therer.fter for the holders of the bonds -
at sunj rate, it ^vould require in excess of ten years' tine for
the bondholders to realize out of diviisnds the rinount \7hich is
now available at; a rer.uit of the offer of the owners of the fee
to pay the sum of |40,000 in cash as herelnb'^^fore .Met forth."
The aaster further fotmd that all of the material allegations in th«
intervening petition had been proven | that the equities were vitk
the intervening petitioners, and he rncomraend ed s
^"That a decree be entered herein in conformity with the
prayer of said intervening petition;
"♦That the proposal of the intarvoning petitioners as set
forth in this report be eocepted {
"That the Court retain Jurisdiction of this matter for
th'i purpose of dfitorainine; the distribution oT th3 funds v.hich
will he available r=; a result of the proposal of the said inter-
Tenlng petitioners, ?jnont- such of the partit-s as may he entitled
thereto*"
29^0 objections were filed to the master's reportt The deoreo found»
imter aliaa that the offer of settlement was '*a reasonable and fair
bauiu upon i^hich a decree should be entered in this cause} that goiA
oum of ^40,000 should be paid to Mllo J* Tlusty, as receiver, to
%e distributed by him according to the further order of this Coart|
» « * that Mllo J» riuaty pay and deliver to said intervening petl«
tleners or their duly dealgnated agent, all money in his hande loos
^'^-
Xa>c.o^O'XQ a
:u'i ..
i^swo'i xeiiiticiil -gmimasi %r£f .(SO^t^lil le aam
m^^BiSus
TAfssQ a&it0<f e'
.r::;r6Eixotqci.« y.lBt j-fftscr s-xcift ^ftftT*"
-'%<-. r'r> hrf- ■*.' '•i n .•,■■ .■ - ^ ■",
blue i!'.^l d^' :'■ ■■OQ ^^liiv^^ii. ivi
Bl rh iO J'
.;• -,-,T fi-n ;! l^r*
»ii;^ .
o .n^ j.ui.
t bp ^^?;rn^■
<«i'i«ino.t«i*
^lii'l ■ ; .fr'*;/ipa;:. ^ _ _ .. .•i....i.': -./;;• .-tin 'in 'f-^'i-'
-a*
his sxpensas as receirer and less the said svim of |2|400 as afore-
said (to be paid for the expenses of the Bendholdere' Goumittee)
and shall also deliver to said agent all oi the perbonal pxopexty
in his poeseasioa as such receiTer^ including ollice fuiniturei^
equipment and supplies * and all imiohineryt tools and othe;L> equip-
ment used in the operation of the gaxetga and repair shop* in sidd
demised premises^ and all merohandiee on hand» including tirea*
gasoline and oil) also all bills and accounts reoeivuhld^ and that
eaid interrening petitioners assume all accounts payable of tha
said receiver in the operation of the giu-age busiiiea.? in the dozoisad
premises » and assuiao all unpaid and future accruing t^ixaa -whioh^
under said leases » are to he paid "by the lessees and relcsase the
lessees and all those holding under them or as sucoesRor from ail
other liabilities.** The decree confirmed the termination of the
three leases* set aside and declared void the trust deed securing
the $500»000 of leasehold bonds* confirmed the pagnuent of |40»000
by the lessors to he distributed to the bondholders as the court
should thereafter direct, and ordered that the property he turned
over to the lessors by the reeairers. The decree was entered
Uay 29. 1939.
On June 18» 1935, a verified intervening petition was
presented by appellants, "'bondholders holding bonds on the trust
deed foreclosed in this proceeding « * ^ laost of your petitioner*
are depositing bondholders with the so-called Bondholders* Pro-
tective Committee." The petition prayed "th-at an order may "be
entered herein vacating and setting sside the decree of forfeiture
heretofore entered herein and further that ?r. ordsr may be entered
dismissing the intervening petition of said Lessors herein; that
an order may be entered herein lor a rule on the Trustee, its
attorneys, said Chicago Title and Trust Company end said Dayton
Keith and s&id so-called bondholders' i=rotective Coiuaittee who hare
«p-
-^ijJiJ« -rafCi-o bn..M nice J ,-<it©|iMq^^UE# ij0» i a© iXci^we foaa ifiiSK.qi«p»
bXj-i^ J i^^feTi#?T5i S'XW to «©i4.«ia«qo fed* tti fesau d'nem
:oV.vJt d ' t : c^i-JjC ooi
lis liio'ii :o;ia.^ouii
feOTd^Jns asw 9e'i5»b axil
.cvlT^v^jt biac
i . . ^ oriv i.i.G on-c KCfeiisej.
.::XidJ3fX -vjii^Jo
•'^'labio T . .ji^lRgTiert* &Xiioria
»estx ,9S ^«M
Offv
cilblod
; beab
^xcJiii.i-.o. oeXXtfo-ow bX*»8 fcn^ xfi'iiX
appeared in thie cause » to account for any and all moneye ifhloh
they have reoeired from the premises herein unlawfully ejid im-
properly and that your petitioners may have such other and further
relief as Equity may require and to the Court shall seem meet.*' The
petition is signed* "By Max Biohmond Kargiuui Their attorney and
duly authorized agent in this hehalf (>*' and the affidavit in support
of the petition its also made "by hl«« An order was entered denying
the "motion of Max Richmond Kargman as attorney for a group of bond-
holders for leave to file an Intervening Petition. •• Thereafter, or
June 20* 1935 » a verified amended petition was presented to the court
Tbj appellants » ••hondholders holding TBonds secured "by the trust deed
foreclosed in this proceeding, * * * most of your petitioners are
depositing bondholders with the so-called Bondholders' Protectire
Committee*" This petition is signed* "By M&x Hichmond Kargman Their
attorney and duly authorized agent in this hehalf ," and the affidavit
in support of it yi&s also signed hy that attorney* On June 22, 1935|
the court entered the followlag order t
**This oauee coming on to be heard upon the motion of Max
Kiehmond Kargman, attorney for H» R. Halterman and others, for
leave to said H* R* Halterman and others to intervene herein,
and to file their amended petition hereinj
"And it appearing to the Court and the Court doth findi
•l« That due notice of said motion has "been served upon
all parties of record herein, and that a full hearing has been
had with reference to the matter set forth in said amended petition
before this Court, as hereinafter more fully set forthj that the
Court has read said verified amended petition and has heard argu-
ments of counsel}
»2« * * *
"3« That on December 20, 1934, an order -was entered herein
granting leave to Robert P. Bass, Saa Bass Warner and Harry C*
ISdmonds as trustees under the last will and testament and codicil
thereto of Clara 7* Bass, deceased } John A. Bross, individually,
and New England Trust Company, a corporation, and Orrin Q» \ ood*
as trustees under the last will and testament of Arthur C» Thomsoni
deceased, to file herein their intervening petition as owners of
the fee title to the premises Involred herein}
iLaXxLx Bxeaoss 1.1b fans ^i nz/ooos o^ ,aaM£o side* ni feft!t««q^
ailT '.^esd M£sa XI-5x{a iiuoi) adi c3 dhs atltfoai: y^am xiius^ •« *9ll^^
-bnstf .c -i- - - -..^^f--:'! ^noa/r^ii?! 3tj?!^ to nDtJ^Kx" Si£;t
no ,teJl;?ea9i:: . — • ..■^sblo^
i>e-- " ... -iofibf^-"-'^ , •■■■'rvivrxeqctjs •^cf
,ae9I-«SS 9au(. nO *yfiaio^i^s ***.ricr ■\cd bsngit oqqua lit
xoH lo floi;toiH sii^ noqi; bn^'&d ecf od co
•xo'5: ,s5Pif:}o bnc n£ittX9iIc;K .51 ^^^ '^ •■ ♦ - -- :-...-
,fli»T«r£ 9^»y19;^^i: Oi^ Bt!rd\io . ^•fie o# eva»I
HOrr-- "^ - ,:,.'
t gei^ieq XX*
-K>. --^ ami . i... -
• , ; . 'io aiasm
oanoxi . •
{i^j'^Vji; n v.!.o.n. v :.':^C; o. ?^j.>" i ■■
*'4« That ozif to wltt fetruary 25, 1935 » a hearing via,B
haudi on said interyening petition and the answers filed thereto
after serTlce of sumaons on all neceseary parties « and that said
he&rlag was continued to March 8; 1935; that said hearing was
reset for Karch 25 » 1935 j that on March 25, 1935, an order was
entered herein ordering that the intervening petition hereinabore
referred to, together vdth the anerere and repllcationB filed
thereto, be referred to one of the Masters in Chancery of this
court trho was instructed to take testimony and make a full report
as to the findings, vfhlch order also prorided that no fees be paid
to any attorney in connect io» with said reference! that full hear-
ings were had before the Master in Chancery as to the merits of the
interyening petition and the offer made by said interveners ^Ith
reference to the termination of the leasehold estates, and that
the said Master permitted evidence to be taken as to the fairness
of other offers to reorganize and rehabilitate the said leasehold
estates and that after various hearings extending over a period of
Bore than thirty days, the Master issued his report and there were
no objections thereto; that on, to wits May 20, 1935 y full hearing
was had before this Court on the Mc-ster*s report and on the motion
to enter a decree la accordance with the findings hereof, and that
said hearing was again continued to May 29, 1935, for the express
purpose of permitting counsel for the present petitioners to
present his cause to the Federal Court for the ?Torthern District
of Illinois in the cause therein pending entitled *In the matter
of Sherman Oarage, No. 59257,' bein^ proceedings pending under
Section 77-B of the Bankruptcy Aot> as eaended, V7hich proceedings
allege to involve the property described in the decree of foro-
olOBure and sale entered herein)
'^S. That on May 29, 1935, this Court was informed that
the Hon* John f* Barnes, one of the Judges of the Federal District
Court, dismissed the petition of the petitioners, H. I^« Hstlteriaan
and others, to reorganize the property involved herein under Section
77-B of the Bankruptcy Act, as not having been filed in goo-i faith,
and that this Court was the only Court having jurisdiction of the
parties and the subject matter before v^hom questions involved herein
were properly pending; that on said date a decree was entered herein
which provided, among other things, for the termination of the lease-
hold estates and that the receiver heretofore appointed in this cause
be directed to deliver to the intervening petitioners, owners of the
fee, possession of the premises involved herein upon payment to the
receiver of the cash sum of §40,000, all in pursuance of the Master's
report and recoiamendations and the evidence and testimony taken in
this cause}
"e. That Max Pichnond Kargman, attorney for H* H* Halterman
et al., v/as present in open court at the time of the entry of said
decree on May 29, 1935, and had full knowledge of the contents there*
Of and participated in the hearing had thereon*
'*7* That a motion was made by the American National Bank
and Trust Company, on May 29, 1935, successor trustee under the
first mortgage IsaBehold trust deed involved harein, for an order on
the receiver to turn over the said sum of §40,000 paid to him on
May 29, 1935, by the Intervening petitioners, Kobert ?• Bass dt al« ,
and also such other funds as may remain in his hands for purposes
of distribution to the holders of first mortgage leasehold bonds
secvired by said leasehold trust deed, and that said motion was con-
tinued at various times to June 4, 1935, at which time a full hear**
ing was had thereon, and all parties in Interest were ordered to
answer or file objections to the petition of American National Bank
and Trust Company of Chicago, as successor trusteei
tmmmr Xit* T "o.nr:
4
-or-
uo tolC
j1 ?-^30*
*'— •■ '■■■ ' ■■ ' '■■■^- '-'^
If
s.-i^r no bns^ i
*oJ:
eviovnl &S ©tc
':n r.oi
• <■ ■ 'i.
. ; -1
t ' ' ■.■■ iB
.. , , ■ ■ ■ _ ■■ ^ ■ . 0
t ■, , 3
BO *r i
« 0 X17.wa OS : -i
, ,If . . • LvriJ vc' , , .i<
I. ■ '-^
•Si
o« "nl m Xl;3 bn£ «flo»ae£l# f/rol saw sfii;
,0 to x;«B<pa«0 *8»rrT (Mui
-11-
■8. That on June 11 i 1935 » a full hearing wae had on
said petition and the answers filed thereto » at which time
counsel for petitioners, E. R. Halteraan and others, were
present, and after a full herring upon the merits of the
petition of the said trustee, an order was entered herein
directing the reoeirer to deliver to said trustee the said
Sim of $40,000 and to make payment of additional sums out of
the moneys in the hands of said reoeirer, as provided in said
order}
"9. That on the srjne date, June 11, 1935, the peti-
tioners, H* B* Halterman and others, through their counsel.
Max Richmond Kargman, presented a petition praying for leave
to intervene in this proceeding on "behalf of certain holders of
leasehold honds, the majority of which had deposited their bonds
with the committee for the protection of the holders of first
Mortgage bonds sold through Aaerican Bond & Mortgage Company,
which eommittee had consented to the decrees and orders hereto-
fore entered herein, and the Court, upon examination of said
petition, found there were no new matters presented therein whioh
had not prior thereto been fiaiy heard by the Master in Chancery
and by this Court upon various ocoastons as herein set forth, and
that this Court held that to peralt the filing of said intervening
petition would merely prolong the litigation in this cause and un-
duly burden the parties in interest with costs and expenses Ahat
would be unwarranted, and that said petition was without merit,
either in law or in fact; that thereupon, an order was entered
here is denying the motion of said H. B* Halterman and others, "bj
their attorney. Max Richmond Kargman, to intervene* That at said
hearing this Court stated that the said counsel for the inter-
vening petitioners could present, if he so desired, certain auth-
orities to the Court and that the Cotirt, after examination of said
authorities I would notify all counsel of record if not convinced
of the propriety of the proceedings had in this cause, by Saturday,
June 15, 19351 and further that this Court advised all counsel
present that it would not be necessary to appear before this Court
on Saturday, June 15, 1935, ualees they were so notified.
*J.O* That on Saturday, June 15, 1935, the said Max Richmond
Kargman, attorney for H. R* Halterman and others, appeared before the
Court without notice to counsel of record and requested this Court
to permit him to file on behalf of said proposed intervening peti-
tioners an amended petition to intervene, and this Court refused to
enter such an order or permit any Intervention without notice to
counsel of record*
"11 • That thereafter on June 80, 1935, upon due notice,
the said H* R* Halterman and others, by their attorney, Max Richmond
Kargman, moved the Court for leave to file an amended petition to
Intervene* and the Court, after examination of said petition, finds
that said amended petition Is v^ithout merit» either in law or in
fact, and is substantially the same as the original petition, the
prayer of which this Court denied on June 11, 1935, and the Court
having heard all of the matters raised by said amended petition and
being fully advised in the premises, and after full hearing in the
matter, and acting in the reasonable exeroise of its discretion in
the matter*
"It Is Ordered that the motion of H* R* Halterman and othersp
made by their attorney, Max Richmond Kargman, to file herein their
Intervening amended petition, be and the same is hereby denied*
, ; . .: .S .H tin
\o etc '*
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dtiiln f?
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i hem V
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•» r-' >. r
-12-
"It Is TuTther Ordered » and therefore the prayer of said
petition is herelsy denied."
The material parts of the petitions, as stated "by petitioners in
their brief, are, in substance, as follows: That the petitioners
\f8re not made parties to the intervening petition of the lessors
and had no notioe of the proceedings until after the decree was
entered) that the ten bondholders nade parties to the petition
to represent the non-depositing bondholders did not appear and
defend and did not properly represent that olass, and that the
proceedings for forfeiture were isholly foreign to a court of equltyi
that the offer of the lessors was mafair and inequitable; that said
Bondholders* CoBunittee in accepting it did not act in good faith and
did not protect the petitioners' and other bondholders' interests in
that the committee, through its chairman, attempted to operate said
property, although its chairman had no experience whatsoever in suok
business; that the connalttee permitted the trustee and its counsel
to withdraw from the estate numerous and excessive sums of noney,
which depreciated the estate and directly contributed to the oondi-
tlon of default existing In taxes and ground rent; that the trustee
In
and its counsel were guilty of malfeasance and misf easano©^^ thai, thv
secured the payment to themselrea of sums of money unlawfully and Im-
properly and should be made to accoxmt for said sums; that Chicago
Title and Trust Company, as receiver, and the chairman of the committefl
received improper and excessive fees in connection with the operation
of the property and shoiad be made to return to the estate the moneys
so secured; that if all of the moneys that were improperly and unlaw-
fully withdrawn from the estate were returned to it the defaults, if
any, in the ground rent and taxes woiad be substantially diminished
and the bondholders woiad have the benefit of the property which
rightfully they should have; that the building erected on the land
oest in exeesB of $500,000 and was worth not less than #400,000)
-31-
fii sir>r:
«T?n'
8*;ea«^»i
9Ai
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iUIiXQi/d
at
«qo ex.. .oiiOBni .otqmi l>»Ti©o»l!|;
1. . oj: 4^ ..'■:■
-13-
that the l^oiidholdaxs hare a su'bstantlal interest In the property
and the offer of ^40, OCX) wae groeely unfair and inequitable; that
the ground leBsors took ao action to enforce the defaults at the
tine when they knew or ohould liave known of the iarproper distribu-
tion of moneys to the trustee and its attorneys; that the ground
lessors entered into negotiations with the Bonfiholders* Committee
to reduce the rent due under the leases and made tentative agree-
aents for reduction of the rents and for arranging the rental upon
a basis so that the payments could be isade; that for two years the
ground lesEors permitted defaults to continue and at the same time
were negotiating for a revision of the leases; that this conduct of
the lessors ''lulled the parties into a sense of security as did
their negotiations for a reduction and revision for the terms of
the leases;" that the lessors were now seeking to enforce the strict
covenants of the leases and to "enforce a forfeiture thereof and thus
unjustly enrich themselves at the expense of the great number of
persona who were lulled into a sense of security by the previous acts
of the lessors;" that the court should not permit them to enforce for-
feitures in an equity proceeding because the forfeitures arose largely
on aocoun* of the conduct of tte lessors; that the court should y««
strain thmn from forfeiting the leaseholds p-nd should aseumc Juris-
diction for the working out of a reorganization plan; that the lessors
have no right to forfeit the leases under any conditions in a court
of equity, and that the decree should be vacated and set aside and
their Inteirvening petition should be dismissed; that a plan of re-
organization might be evolved for the protection of all the parties
herein, and that sua accounting should be had of the sums of money
xmlawfull:^ withdrawn.
Appellants contend that "a Court of equity should not
entertain a petition or proceeding to forfeit a leasehold »' and
that "the lack of jurisdiction of a Court of squlty to enforce a
-Zl-
-udixiBib laqo-xcpai sns to avron:i. ovisxs
39iiiwitBoT) »artsl>IO£lt>nofc sx
noqxr Is* r
eei ^ SIC
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a^£te aioaevX
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■■ CO j: ?;?;'.:. ^i i^ ' r v.:r OOf^ UO
i enoid-lbr lebmr aeesoX sa* Jiel '^r:'iii oh ©vari
-rta j>bi"8-' ;J93 Jma b9;f«oav etf bXiioxfa ssn ,. "zo
£»^i.' .iq '/ : iXa lo nojdo&^oiq. ©rfi- rto!t bavXoTst &cf ;Jx£iiiai moli'aalKiJjjio
♦ nwfl'xbiiixw ",XXi;^«rj8Xiiu
«oa bXJ»«iIe T*^ffP« io *<«»0 a" *arfS iine^noo a^£»BXI©qcj.-.
iMis ",bXeileaa»X a i^le^to^ oJ sni&s»s>oo"iC[ to nox;H;Jsq a «la^'j:»«ii0
a •oicj'itt» oJ \:ilijpa ^o JiffOO « to iroiiolbeitftJt, !to :!(?>£}X erf** t»Ai
-14-
forfeiture may be raised after decree and even in the Appellate
Court in the first instance." It ie undoubtedly the lav that
a lessor cannot by a bill in equity hare a lease set aside on the
^ound of forfeiture) as it ie a settled doctrine that a court of
equity will not interfere on behalf of the party entitled to en-
force a forfeiture, but will leaTe hi» to his legal rsaedies. But
there is an equally veil settled principle of law that when a court
of equity once acquires Juriediction it may retain the eause for all
purposes and administer legal redress as well as equitable relief
and will dispose of all questions arising between the parties,
whether such questions are legal or equitable* In the inatant
case, when the intervening petition of the lessors was filed the
court still had juri edict Ion in the foreclosure proceedings and the
property in question was in custodia leyis. If the lessors had
started legal proceed ings that might affect the possession of the
property without the sanction of the court appointing the receiver,
such action would have constituted contempt of that court. The
trial court had the right to try the petition or enter an order per-
mitting the lessors to have the question tried in a court of law.
Ae the court had possession of the property, the chancellor decided,
wisely, we think, to try the petition. If no receiver had been
appointed in the foreclosure proceedings, or if one had been appointed
but had been discharged prior to the filing of the lessors* inter-
vening petition, the lessors would not have had the right to inter-
vene in said proceedings. The case of Gunniiy v, Sorg, 214 111.
616, supports the procedure followed by the trial court. There
Sorg executed to Qunning a 99-year lease on certain premises in
Chicago. A trust deed was executed by Gunning to one Phillips om
the leasehold estate. The lessee defaulted in the payment of certain
quarterly installments of rent, and the lesser served notice of de-
fault and thereafter instituted a suit of forcible detainer, Befer«
»t«XI»(i?A vA^ «i ners bun as^oefc rtdt^ &»b1«-3 ©> u^tialiiol:
tsOS waX 9ii^ . XbftidwobHU ax ^I '\Qoa&iBal - ^*t«oO
•rf* no abiBM t9B *8.39X j; svcri viiffp- .tonn^o loaasX a
to r^iAio «: ^jErit 9Rln;>oo'i beXv. < nuoTS
trueo 9. n»iir ;ffirf* vrrjX 1:o sXviit ni-Kj feaX^^tf; i al staff*
*siX9t sXrf'^v /U'lS ?.? II:r .:^J'■ Rr,3T&''T I/-->i.?I f 5« >. Inli.^*!.- '»n^' apaorrfuq
« -'■ ' - -,nj5
>i:? ri noiaaeaaoqt ^Ai tfoetts Mgija *sfl:: ii^ii &'^
-t»q isMo rus isO; >ai bBil vIjjoo Xsii*
• Wf.I .00 B ni nox*??©;' > . iii^iiai
,5«blo5<b rroXXsoxifiilo «if;f t'^j^rr-sqc uojteesaaocx bsii iiwoo
iiB«<f tori idTlsoert on .noi*i;Jf
-t»*fii o< 3i(3ii 9ri* bcrf 9T«d Jon hXuow eion;: tnoJt^l^»^ gninftr
• IXI >X3 «»Toe •▼ JS^ttrnj© ^ , i^nift^sootq bJ:«a ni eiftfl'
«i aaeiosTq «l«;t'X90 Jf© saesX x«»AC-'^e e MttJtnntff) ©* fir*? wo r.-'
■0 a^iXXiif-i ©HO o;f -aifirijJi v.tf bsijuooxe 8«w b»©' Saw7..
hlsiODO tm ttmmnpG »tli at b&4Lu»1t>b seBaeX rx!T .siBS^.f} bXwi :i. di
-•b !• eol^ofi boYTfta toa^eX 7rft ^n.f^ ,?rt--- -./^i/.x^-.^fr rt.'- vT-r'^i-rsitf)
-15-
that Buit could 1»9 keapd Phillips filed a bill for foreclosure on
the leasehold estate* a reeeirer wae appointed » and 3org then filed
an intervening petition setting up the conditions of the lease* the
default in the payment of the rent* and averring that the trust deed
to Phillips had been executed vyithout petitioner's knowledge and
oonaent, and askln,-^ that the game toe declared null and void as
against hie interest, that he be decreed to be entitled to the
posBession of the premises, and that the lease and trust deed b«
canceled and set aside. The final decree entered toy the trial court
ordered that the lease and trust deed be set aside and annulled and
that possession of the premises "be given to petitioner. (See Gunning
v» Sorg, 113 111. App. 332, 337.) In the Supreme court, In answer
to a contention that the deeree was wrong because a court of equity
could not enforce a forfeiture, the court said (214 111. 616, 624-6) i
"It is urged that the latter decree was wrong, for the
reason that a court of equity will not enforce n forfeiture. It
\ViB familiar doctrine that a court of equity will not actively
interfere to enforce a forfeiture, (l Poaeroy* s 3q. Jur. sec.
459.) But it is equally well settled that when a court of equity
has acquired jurisdiction ovar a cause for any purpose it may go
on to a complete adjudication, and may establish purely legal
rights and grant legal remedies which \?ould otherwise be beyond
the scope of its authority. In such a case it will not remit a
party to his remedy at law, but \7ill decide all issues and make
a decree-granting full relief to all the pjirties. (Ibid. 181,
236.) In suite in equity where the right of possession of real
property is involved, it is not only proper, but t^e duty of the
court, on the completion of the suit, to put the successful claiaeint
in possession of the premises. (Harding v. LeMoyne. 114 Ill» 65»)
Although a bill in equity cannot be maintained merely for the
enforcement of a legal right, if the controversy contains any
equitable feature vjhich authorizes a court of equity to take cog-
nizance, that court will retain jurisdiction for all purpoaec and
will establish merely legal rights and grant legal remedies. ( 3tickney
^* Qoudyi 132 111. 213.) In Link Belt Machinery Go. v. Hughes, 195
111. 413, it was said that a court of equity having by its receiver
taken possession of appellee's property in that case, and having by
its orders taken his rights under its protection, w?,s bound to protect
him without driving him to a suit at law to enforce such rights. That
rule applies here. Phillips, the complainant in the original bill»
invoked the jurisdiotion of a court of equity for the foreclosure of
the trust deed and prayed for the appointment of a receiver to tako
possession of the premises. Guiining entered his appearance and
expressly consented to the appointment of the receiver. The receiver
was appointed and the property \jas thereby brought under the control
Of the court to be disposed of according to the rights of the par-
ties, and the court, having acquired jurisdiction, mit^t then adjudgo
the rights of all parties to the suit although it involved the grant-
4
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-21-
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-16-
Ins of legal remedies. (17 ISncy. of PI. & Prt see. 766.) The
receiTer did not hold the property for PhillipB or for aunning
or for any other person, hut for the one vho in the end should
sho'w himself entitled to it. The property haying legally coae
Into the possession of the receiver, it could not he interfered
^ith hy any person claiming an interest in It vilthout leave of
court, hut Sorg could either ask the court for leave to assert
his title to the property in the posaession of the receiver by
a suit at law or to have it determined in the receivership. The
court, in its discretion, could either try the case itijelf and
determine his right to the property or permit the question to
he tried in a court of law. (17 -Snoy. of PI. & Pr. 775-792,)
The court determined to try the question Itself and came to a
correct conclusion as to the rights of the parties. The lease
had heen forfeited, and Sorf? was entitled to possession of the
property when possession was taken hy the court through its re-
ceiver* Vhen the receivership came to an end it was v/ithin the
power and duty o: the court to determina to whom the poesesnion
should he surrendered hy the receiver, and having ascertained
that r?org was entitled to it, it would not he in accordance with
equity to order it returned to one of the parties who had no right »
legal or equitable, to it.**
The procedure follo-wred in the instant case was also followed in
Chicago TruBt Co» v. 12-14 ^'^« ^/ashlngton St. Bldg. Corp., 278 111.
App. 117f hut there no iuestion seems to have heen raised as to
the right of the lessors to file their intervening petition. In the
recent ease of .^scher v. Harrison Cecurities Co., 79 ffed, {2d) 777 »
It was held that a landlord was entitled, in receivership proceed-
ings in the Federal court or in a state court, to take action to
forfeit a lease and to repossess leased property hecause of non-
payment of rent and nonperformance of other forfeiting covenants.
In its opinioa the court cites a number of cases that seem to
support the procedure here followed*
Appellants contend that none of the bondholders selected
by the lessors to represent the class of non-depositing hondholderi
appeared and defended on behalf of that class, and, therefore, the
appellants should have heen given leave to appear and defend. Th«
order entered hy the chancellor on June 22, 1935, dirposes of the
argument that the views of the non-depositing bondholders were never
considered. That order shows the pctive part taken by counsel for
appellants in important hearings hefore and at the time of the entry
of the decree. It further shows that counsel for petitioners
«»fCT ( .'^5V .088 »1% *
hf
lot *-
A oif om^a bnis ll^teil
) e4* x*^* (
n
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a
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novvo.
beioeX&Q siEebJLaflbBOC dri.'
mii la aeitoqaib «55(?.i ^ .
t»rf*r. aim*, <^7f'f)XMl&nocf ^«i3 iaoQa*?-!
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.0 d«6osn
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-X7-
Halterfflaa and othere war present on Jtme 11, 1935, when a ftill
hetiring was had upon thi merits of the petition of the trustee
for an order on the receiTer to turn over the sum of 1^40,000 for
purposes of distribution to the holders of the first mortgage
leasehold honds* Counsel for appellants, upon the oral argument
in this court, conceded that he represented certain non-depositing
■bondholders in the hearings before the chancellor on May 20, 1935 1
May 29, 1935, and June 11, 1935, and that he also represented cer-
tain non-depositing bondholders in the cause in the Pederal court*
Taile no objections ^«ere filed to the master* a report, neverthe-
less;, the chancallor gave a full hearing upon the report, in whioh
counoel for appellants participated. The decree in question waa
entered on May 29, 1935, hut counsel for appellants did not see fit
to present a petition for leave to intervene in the proceeding until
June 11, 1935. We cannot commend the practice followed by the
counsel. After the bondholders had learned of the offer of the
les£?or& there still remained on deposit with the Bondholders'
Coiamittee 89.8 per cent of the total bonds outstanding. After
the chsjicellor had approved the offer it vjan reported to all of
the bondholders, approximately three months prior to the entry of
the decree, i'he several postponements given counsel for appellants
by the ehanoellor ehov; cles^rly that the latter was willing to gire
tne counsel a full opportunity to present the views of the non-
depositing bondholders, and it sesms idle to argue that such bond-
holders were not given an opportunity to be represented before the
entry of the decree. The failure of the appellants to present,
in apt time, a petition for leave to Intervene and to filo formal
objections to the master' r; r^^port, is not chargeable to the chan-
cellor nor to the appellees*
The argument of counsel for appellants that the lessors
lulled the parties into a sense ef security and thereby waived
-vx-
|5£tl «J^ v«SI no toXI*tiiiK
,jiejk'£s9ji ©ii
;fit »«8 iOB kib r3rTrT.It?<irr < j
' ft il OJ.O;:; 1-^
to XXfs oJ bBitCi
io ^iia« erf* o? Toiiq fciiux:oi
:t ioXXeoELi?ytio arW
aiibiXX»qq« tol Xftsfu/O'j ntvJt^ ed'mujj. noq;faoq; XaT©v©a 9i£i' .©e^osb snU
»Tl8 05 sfiilXi.. olS.&oa&£io atld ^«f
-fwocf floue ciUiJ or- . bXttftfcnorf ^aXcT Jttoqai)
i»i#«a*»X *siJ iettt uinnLlfiqqr to't I' Tr
tBtf:* liner
an toXXeo
'^11* ..-.; X J i^j;(j ivr-J C^t>JX«|X
-18-
the strlot provleions of the leaae ae to forfeiture is without
merit* The eyidence ehowe that the leeeors ^&re patient and that
they were willing to ohsjige the terme of the lease "to allow the
property to he worked out," tout their efiortB in that directiom
failed. UhilB they were entitled under the provisions of the leas*
to a forfeiture without compeneation, they saw fit to make the offer
in question and it was epproved by the Bondholders' Committee, by
the master after a full hearing, and toy the chancellor after he had
giren appellants* counsel a full opportunity to be heard. Trom the
report of the maeter and the findings in the decree it seems reason-
ably clear that the property ^as hopelessly involyed and could not
l»e eared to the bondholders. liTinety per cent of the bondholders,
after a full consideration of the situation, were willing to accept
the offer. iJone of the appellants hare offered at any time, even
in their petitions, to redeem any of the defaults. Indeed, in their
petitions, they present no feasible plan to save th? property for
the bondholders.
The appellees have made a motion in this court that the
apreal be dismissed. It will be denied.
The judgment order of the Circuit court of Cook county of
June 18, 1955, denying the motion of appellants to intervene and
file an intervening petition, and the judgment order of June 22,
1935; denying leave to appellants to file their amended petition,
are affirmed.
jUDOMrirr oildisi-? of jim?] is, 1935, jjiocim
MOTIOir OF AP?3LLA]fTS TO IHriJ^JVJMJ Am) FILS
AIT iwur/i:Ti:iG i'..'ti'?ion, aitd jroaiCiijrr ord>r
OF jmns 22, 1935, j^rimriHG kav; to ap^'^ll^jbits
TO FIL"^ TWiTR J\}nSD'^D PilTITIOST, /O^IKitlD.
Sullivan and Friend, JJ., concur«
"Si-
^d rut lie
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Ui fciJi>339l: on •asa&iq ^ari^ «3n0l:tl'*9q
.B'xsbXoriftnocr edi
bus eneTifti.' I'Blioqq Horn sff* sal-scwob ,a£€X ,61 enuX,
(ftoi^i^oq bebnett? ilexld six fiisXIeqqi^- r: i5Vj^^»X ^iiiy;n96 «66©X
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38647
(Respondent) Appellee ^
(Petitioner) Appellant.
APPSAI, HIOM MUHICIPAL
COmX OF OHICACrO*
^
28 5 IX 593
Ki, lESSIDISG JUSTIGS SCAHLAS KILIVJSPE2) TES OPINIOH OP THS OOORP,
Plaintiff, as assignee of the true tea in bankruptcy of
the ivhitestone Management Company, i^iiloh company operated the
Brake hotel, susd defendant fer #344 halanee alleged to be due
plaintiff from defendant for rentals of the hallrooa at the
Drake hotel. Defendant's amended affidavit of merits alleges
that plaintiff was not the "bona fide owner of the claim, denies
that the "rooas" rented were *giTen and delivered to defendant
at his special instance and request,'' and denies that defendant
was indebted to plaintiff in any oxxn •whatsoever. After a jury
had returned a verd iot finding the issues against plaintiff,
the latter' B motion for a new trial X7ae granted. Defendant then
filed, in this court, his petition for leare to appeal fro« the
order of the trial court granting plaintiff a new trial, rrhieh
leave to appeal was allowed* i^laintiff has not filed aa appearane*
nor a hrief in this eourt*
This court is not aided by a stetement of the trial judge
giving his reasons for the allowance of the motion for a new trial*
"but we are satiafied, froa an inspection of the short record in th«
case, that defendant's ooniention that " the on3.y point on which thi»
court could have granted the new trial \vag on th^ weight of the
T^*6E.
Lii-nnaf
80 3 .A.l2ow.
,VJroO0 SKT 'iO IT
.sllc
y..!!-' JG i'^.J...
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•-. ff I V r -" rsT .. n'
; Wi .')r-. .t f .■( ; T nrrt ^ -rrn.x r-r i
> ntfiXq
ftiii fli btct>f>\ ^"odn Off J lo KoikoeqivHi' nu boiT: tbei" .'i/tf
ttf# tl9itbr rr* .^«ioq v.Xflo ©i£?" ikti^ aolitisCaoo a '^Jajshnolt-f: ifjafi' ,
tdt io idi'lj;:. - M i :, con &jd.i h&iisAX-g BreA bijaoo Jxuoo
erideAoey" la oorreot*
Defendant eoateade that "the rerdlet of &lie Jur/ was la
aecordanee with the weight of the eTideaeet** and that *'the trial
court usurped the funotione of the iray in graatlag a nev trial
to plaintiff*" In pae&ing upon this oentention we hare seen
fit to read the entire trnriBcrlpt of the evidence » whloh consista
of oral and documentary proof, and! after a careful oonsldsratlen
of all of the facte and clrciaBt&nees of the c-^.ae -Jse are ^jatls-
fied that we wculd not Toe justified la suetainlng defendant's
contention*
The order of the Kuaieipal court of Chicago granting
plaintiff a new trial is affirmed*
0EIJ3SE mAjsrsim plaiftiff a.
TiiilliTan and I'rlendi JJ«» soncur*
• ■XUOuv
386T6
THSODOKS J* JOH2730N,
AppelXaaty
v»
THSOI30EE A. BUSHOmt
Appellee*
)
)
) APP3AL PPOM MUHICIPAL COURT
OF cmcnc-o*
28 5I.A. 593"
MR. PKSSlDIlfa JTJ3TICE 3CAMLAH D^LIYSRSD THS OPIlflOH OF THE COURT.
Plaintiff confessed Judgraant in tha sua of t>5,4C7.96
against defendant for alleged unpaid principal and interest due oa
fire prOTiissory notes executed "by defendant. Defendant filed a
verified petition to vacate the Judgment » in v/hich he alleged that
"the amount of money actually borrowed and received fro« the plain-
tiff l>y the defendant was less than the amounte specified in said
notes ) heing so made as to cover up a usurious charge of interest
Made hy the plaintiff." The petition sets up in derail the alleged
facts in connection wich each of the notes. Leave was given defend-
ant to appear and defend » the Judgment to stand as security and the
petition to stand as defendant's affidavit of merits. The cau^e
vas tried by the court without a Jury* and the judgment was reduced
to $52.34 and confisrmed in that amount.
Plaintiff's statement of claim allegesi
"Plaintiff's claim is for money due upon five certain
promissory aotea, the amounts, dates and maturities of each of
said notes being as follows:
i^ount
$5,000
3,600
4,000
4,500
4,500
Dated
6/1/27
e/i/27
11/1/27
12/1/27
5/1/28
Due Date
6/1/28
9/1/28
11/1/28
12/1/28
5/1/29
that there is due on the first promisaory note th^ principal sum
of 4^661.94 together with interest thereon to December 15, 1934
S?c)85
\
•TSUOO SET "^lO K0IHI10 »K
d^»vai^tS4 lo 0108 eiiJ ni tneer^btil feeeaslnoo iticTEfisX^
no 9ub tsQiBini bnn Xscjioniiq blsqfr'r begQlXe "TO^ .+ n3fea©l«i9 ^anii58«
A i»8li^ uxis6nal»u .ins' ";d boii$oi^x£i seiam •^xoaaiiserxq &yxJ,
fjadi bsaaXle eii dvi.- :2r\^^tu'\ . .zosv oi noi^xc-eq beititBv
"Btsiifi oiii «oi."i b^ylsoot iuiB b©wo'Xic<f v.IX£tf^ofi ■v:oisoia 'to inuoms sif*"
iatisiai lo dsaaxio snoiiuciu b qw ngvoo o3 tiij aiwrjia oe Bniotf tBo^^on
beB*-^-^ •'l^ Xi. oc.b ni q.ij sJes no.. - . isaimlii &rii \ii sbxaa
te»l9b isrvia saw ©T^a.i ♦asJorx 9A;i lo ifojs© jdiJi»^: noi^oennco ni: a^ost
•d) ana xtituoce c^ bn^is o;) dXTSjogbjjt ^tH «.bn«leb bcjs -XBeqqis o^ stus
•«lf0O odl •a;)ixdia lo tUtabillR a*iajRt.ixe'i»b ac b£i»da o^ tioiiXieq.
leoseXXe oiaXo lo JnsjfflsiT^cfB e^tlxiatifil'i
miaiteo ovil tioqu oub %&aoai tol ex MifiXo a '"ilJJnl^X?"
lo i£o«» 'io 99i*xTB*f,M bfi/j 3f>*ah ts^nwoMJB 9/li , Be don •^■xoeBlaroiq
• as.- n r it^-: r. , firtjpcf 9©don bias
♦4*U e«KI b«3i: ,+ r-MrM.T..
8£\A» VSVXd
BS\j^vtX 7£\X\XX
6£;\X\SiX VilVlsSX ..., -
€S\X\i 8S\X\8 OOa, ^■
laqiotitivi etii p«*o« t'toeairwo'xa ^srri'J •£(;> no S0b a J: 9iBAi iadi
In the BUB of ^66.49 i that there ie due on the seoond promlseory
note th« principal sum of ;i^874.90 together with Interest thereon
to Decenaber 15, 1934 in the sum of $250.94 j that there is due on
the third proaiaeory note the principal aum of *850.00 together
with interest thereon to December 15, 1934 in the stun of f 169 ,13;
that there ie due on the fourth promisBory note the principal sum
of $90S.62 together with interest thereon to Deceniber 15, 1934 in
the SUB of $79*03; that there is due on the fifth promiseory note
the principal bub of #1,121.07 together with interest thereon to
December 15, 1934 in the bub of $187.77.«
Defendant claised that as to each of the notes the discoiuit deducted
and the interest contracted for exceeded sixteen per cent for one
year; that the fire loans were usurious and plaintiff, therefore,
forfeited all Interest; that all payments Bade to plaintiff on
account of the notes must be credited toward the principal; that
there was nothing due to plaintiff on notes Uos. 1 to 4, both In-
olusire, and as to note Mo. 5 defendant owed plaintiff the sub of
152.34 • x\t the outset of the hearing counsel for plaintiff made
the following statement to the courts "Kow the facts that we can
stipulate to. Judge, are the amount of money that wae paid by the
plaintiff to the defendant for the notes - I think we have those."
It was then stipulated that plaintiff paid |4,500 on note Ho. 1 and
was paid on that note |5,215; that plaintiff paid $39240 on note
lo. 2 and was paid on that note |3,279; that plaintiff paid ^1^3, 610
on note No. 3 and was paid on that note I 3, 750; that plaintiff paid
$4,050 on note He. 4 and was pftld on that note $4^366 .80, and that
plaintiff paid |4,095 on note Uo. 5 and was paid on that note
$4,042.66) that each of the notes bears interest at six per cent
per annum, payable semi-annually. After the parties had stipulated
as aforesaid plaintiff introduced the notes in evidence and rested.
It Ie conceded, of course, that it is usury to make a loan
In a certain amoimt and to reoeire a note for a larger amount, where
the discount and interest exceed the lawfiil rate. Plaintiff* s olii b
is that he had no dealings with defendant and that he purchased all
of the notes froB the Monroe oecurities Corporation, owned and con-
trolled iBy DorenBuehle, Inc., and his theory of law is that the
ci
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o mm «ft lEl'
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ditfr
.,,,,.,. ,,.>. ,., ,.. ,^., .- ,... , .... ,-..,- 3ii^
fen;; :ci on:-- ..-,..;,.■. ..-,,. ..,w^
- > ^ol cfKeb«el»ft ei!f4' oi I'itiaiMlq,
,oV. sioa no :05,i»§ blaq lliicislci oisjcfj bftd-sXiniiiJa x¥»iJ^ bj?w #1
eic«» no Ol'S^f: nirlq, iBd;i |5XS,a$ ©4wn 5s«l^ no bt$q, a«v
ftlaii tT:iJni»Xq :>sili j08f,£i^ eicK i&ili no blfi? s.-iu hass 5 «ofe" ©#on wo
olon iiuii no bicq ac • ♦ .on no 3«0,JN^- |>ijaq[ ^ll;^«ifiiq
h»4M£ufil3e bad. ubiiraq ^xii , lijwiiia-iiaea sXtfe-^t^iq ,«ttjr.n« ib%
■0 ;?::.f ,7J-.. :-,r3i5 ,^rii? fii<^ «le*1»0 « Hi
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"pureluise of a note in the usual eouree of buelness at a dlsooont
greater than the rate of interest allowed toy law is not usury*"
The defendant's claim ie that plaintiff aade the loans to hia and
that while in form the transactions on their face might apx>ear to
be a purchase! the fona used tvas a aere derloe or scheue to covar
usury* Both parties conceded » upon the trials that the sole iasa*
of fact was: " ere the tranesctione loans to defendant » or were they
purchEuee of notes from Monroe Securities Corporation?" That was
the only issue of feet raised hy the pleadings. It im not disputed
that if the notes represented loans to defendant plaintiff was guilty
of usury and the final judgment of the court was correct*
Ruth C. Greenfield* the only witness who testified for
defendant, worked for Monroe Securities Corporation and also for
DoTenmuehle» Inc. She testified that she handled the transactiena
with plaintiff in reference to the five notes. Plaintiff testi**
fied» "I had all sy dealings v?ith Miss Greenfield on these notesi"
that while defendant mighty possitoly* haye toeen there when he T)ought
the notes, plaintiff never talked with his about the notes. Misa
Greenfield further testified that plaintiff made loans from time to
tiae through their office) that these loans were made mostly to
defendant* As to note STo. 1 she testified: "It is a note for |5pOOO«
It wae made in 1927* This paper was nade out and the note was glrea
to him, and T gaTe the note to him my self . «^ ^ «^ ^« How who was
this loan made to? A. Well» to Mr* Buenger.** The witness testi-
fied to the same effect as to the other notes. Upon cross-examination
the following occurred s "(i« Vowj Miss Greenfield » I understood
you to say that with respect to plaintiff's exhibit 1, being the
first note that was handed to yoUf that in explaining this transaction
that Ur. Johnson came in and he had some money to loan or inTest and
the note was made out and giren to him? A. Yesf sir* q,» Is that
right? A. Tes* * * * (^, When Mjr. Johnson came in the note was
^tiTVOOSi ^ £■
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T- YCV OS 9«C-i-:'.
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5 ■■r::t...i-j'^t0i^ K re
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. -all
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bo«^87cbfui I «I)Iftilti&ei
bjw. iift^rai to n«oi 03 y.enoxa »£{
it
.4*
made out and given to hiai? A. U'ell, he rery often ooae in and
made arrangements for the note firet. He virould coae in one day
and say tliat this wao to 1i« arraagsd for poasibly a week or ten
days later* and then vrhen he came in to get the note the statement
vfRS made out» (^» Yoti don*t know whether this note - this firat
note that was handed to youi plaintiff's exhibit 1 - was made out
the day he came in or not? a, I aould say that probahly it wasn't
made out the day - that isi it was not made out the first tine he
came in." The witness further testified that defendant was presi-
dent of the Konroe Seourities Coxjporation and also president of
Dorenmaehle , Inc. Upon redirect tlte witness testified that neither
Monroe Securities Con^any nor DoTeni&uehlef Inc.* nor anyone connected
with thene organizations reoeived sjay conmiHsione on the transactions*
Plaintiff Is a practicing lawyer. He testified that he
had known the Monroe iiecuritiee Company and ]>oveniauehle, Inc., "erer
since their exlBtenoej" that he knew defendant; that he had had quite
& few transactions with Monroe Seoxurltles Coapai^t "firm options "
and these notes here that are in oontrorersyy I bought then all of
the Monroe Securities Corporation. ^'^ * * q,, * # ^ Fr(» whom did you
buy that'll showing witness plaintiff's exhibit l}? A. i bought it
of Miss Greenfield of Monroe Securities Corporation. Q. Was ]fr«
Buenger there? a. He may havo been. I had no personal transactions
with him at all. ^. You didn't talk to him did yeu? A« Nerer,
not in regard to these notes." The witness further testified that
he reoeired an invoiee from Monroe OQcurltias Corporation, owned
an(J controlled by Doreniauehlo, Inc., for each of the notes, and that
he paid for each of them with hie personal oheok made payable to
the order of Monroe Securities Corporation. The invoicee and cheeks
were introduced in evidence. The witnesp further testified that he
bought each of the notes from "Monroe -securities CorporatioUf Miss
Greenfield;" that he had "no dealings with Mr. Buenger at all on any
■ntf
*;. ;:
bJtSi! SGvj ;J«ri:,+ ©jtoft
, . .iBimii^ ^'ft'i' "««* siOF.o
of tlieee noteaf* that all of his dealings in regard to tho not«a
wore with Miss Greenfield i that he aever loaned Mr* Buenger any
money and the latter nerer asked hla to loan him money* Upon oross-
examination he testified th^it he knew Buenger and his financial
responsihlllty hut that he nerer talked with him at all about th«
notes; that prior to the transactions in question he had had eimilar
transact ions with Monroe i^ecurlties Corporation; that he does not
know whether he had ever made any statement that he had no huslnesa
dealings with said corporation prior to the transactions in question*
The follovsing proceedings then occurred* "Q,* l£r* Johnson, did you
on the 16th day of April, 1935, sign a sworn statonent known as a
hill of complaint in which you said in part that hetween the dates
of receaher 1, 1928, &nd May 1, 1931> the plaintiff purchased from
said Monroe Securities Corporation certain articles of agreement for
warranty deed, and then further in paragraph 5 of the complaint: 'That
prior to the date of the exeoution of the first of said optional pur-
chase contracts plaintiff had heen transacting the same nature of
liuainesa with the defendant, ]>oyenmuehle, Xnc*, and when informed that
these optional contracts were to be purchased by Monroe Securities
Corporation the plaintiff ohjected and stated to said Dovennuehle,
Inc* that the said Monroe Securities Corporation was unknown to hiaf
that he had no knowledge of its financial responsibility or its
effieerst and therefore plaintiff refused to transact buslnesB with
said corporation.* Did you ever aiake that statement? * * * The
Witness^ I don't know what relation that question has to do with
theso notes in oontrorersy* Mr* Mailer (attorney for defendant)!
i^* Did you sign this svorn statement known as a complaint? A* I
don't remeoiber just what was in the sworn statement that I did sign*
Ci* But you signed the sworn statement? A* I beliere - so. * * *
(%• Did you read it, Mr. Johnson? A. I beliere I probably read it,
skipped through it. I don't know." Miss Greenfield was then called
ttitontift\ mil
^jjB t:^ 'OTftfi tJ- : &Xt!l1;flȣt?^ f:,.3iM xfaiw s-xaw
-«80*ro HO^lJ .^oitoH oitL n&oX oi «irf faisia^ Xi>T»fi ■JK^dJw.i arf* fcne xsrroa
'liiq XjBnol^q.d btRa ^o iB' \otii!0^ >j sish oxf* o* lOiitq
.'I t«aen;^X'-
'.;xr/i S[iif..iJi.>.i^: nxooM alif;! wj^ia uoy, bid *9
-6-
ae a wltnea* on behalf of plaintiff* She testified tliat thB
buslnoae of the Monroe Securities Corporation from June !» 1927>
to May 1» 1928 t was selling junior mortgages, that the bransaotlons
in reference to the five notes "^were speoial transactions »" and that
the eald corporation ^o.e "not in that business •" Counsel for plain-
tiff then offered to prore that there was "collateral security held
hy either Monroe oeeurlties Corporation or Bovenmuehle, Inoorporatedf
for the security of these notes ,** and that the security was not turnsd
over to plaintiff > hut after a colloquy between the court and counsel
for both parties counsel for plaiatiff nade the following statement t
"Mr. Donovan: These (referring to the fiT« notes) have ne collateral
BO far as we can see now.**
ELaintiff contends that usury is never presiuaed and that it
must be proved by a preponderance of the evidence, that plaintiff
and Miss Greenfield were the only parties who testified to the
transactions, that plaintiff is as credible a witness as Miss
Sareenfieldf and therefore defendant failed to prove by a preponder-
ance of the evidence his claim of usury. It is not the law in this
state that an affirmative statement met with a flat and oatagorical
denial by an equally credible witness does not constitute that
quantum of affirm&tive proof which the law requires to sustain a
Jud^DEtent. The preponderance of the evidence does not necessarily
depend upon the number of witnesses testifying as to any material
subject of inquiry • Even though the same number of witnesses
testify on each side there may still be a preponderance on one side
or the other* while the nuatber of witnesses is a factor that may
be taken into consideration in determining where the weight or
preponderance of the evidence lies, it is not necessarily determlnativop
and a Jury or the trial court may be fully warranted in finding in
favor of a party even if his case is supported by the lesser nuniber
of witnesses* It is the province of a Jury or the trial court to
.d-
^.i .is?iiii fc*Jrl.
minute
ti^njiisj
8CX
Ini:-. , . ,...,
ill »ofmtkrn 9ii~ -ii^ ftoir.-j
<^*< +
(^MW ioaa«X »jrf^ Ttf l>ft*too<iws ai &faax) ei v;»T«<f o 1:© TMJvJst
-7-
pass upon the credll}llity of the witnesses and to determine the
weight* if any* that should be attached to their testimony*
"The Vritn&Bs* manner > demeanor and hearing upon the
stand* - his replies* whether frank and open or reluotajit and
eTasire* - his mannsr of expressing himself ^ whether mouerato,
dignified and reepeotful on the one hand* or extravagant*
Impertinent find recklass on the other, - * -•• * are always of
Yital importanet in determining to what* if any* credit the
witness is entitled." (lll«_is 3t» L» Xi» R» 66 Q» Co» ▼• Oglei
92 111. 353* 362.)
It is not the law that a rerdict or finding which rests alone upon
the testinony of one party who is contradicted in toto hy another,
where l}oth appear to he equally credible* will be set aside upon
appeal. (See iSiaer t. Miller* 255 111. App* 465* 470* and cases
eited therein; Ghevalier v. Seager * 121 111. 564, 570 j Hayden t.
Miller* 205 111. App. 147, 148? Mills & Co. T. Duke, 232 111. App.
277, 280.) As stated in this last mentioned ease (p. 230):
""STen in a orlminal case where the law requires proof of
the defendant's guilt "beyond a reasonable doubt* a judgment of
oonvietion will not be reversed merely because only the com-
plaining witness testified to the commission of the crime and
he is contradicted by the defendant. (The People v. Greenberg,
302 111. 566; The Peopl-3 v. "Boetcher, 298 111. 580 j The J:'eople
T. Maciejewaki, 294 "ill. 390.7'~~rSee also Hyan v. Harty* 200
111. App. 470; Kolline v. Kronoke, 262 111. App. 648 (Abst.)
In the late ease of People v. Fortlno* 356 111. 415, 420, the
eourt saldt
"This court has frequently held that the testimony ef
one witness, even though denied by the accused, may be sufficient
to sustain a conviction. People v. uohanda, 352 111. 3C; People
V. aurek, 277 id. 621."
However* in the instant ease* plaintiff is interested in the outeoae
of the case: Miss Greenfield is not. In addition, there are certain
facts and clrcumfltflnees that satisfy us that the trial court was
justified in believing ths ter>tlmony of Miss Greenfield. In another
action it suited plaintiff's theory of f.-5ct to have it appear that
prior to December 1, 1923, a year and a half after the first
transaction here involved* Monroe Sec\iritles Corporation was unkno^vn
to him; that he had no knowledge of its financial recponsibility nor
acquaintance ^rlth its officers, and therefore refused to do business
-f-
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to ^fcoeiq E9ti:
ill
.nCJi J::
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el
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with it) and In his r^om oonplaint in that cause he stated alleged
facts supporting that theory. In the inatant suit it aids his olai«
to hare it appear that he Icnev/ the Monroe Jeouritiea Corporation
since it was organized t in 1922, and that he bad heen doing husi-
n038 with it before the transactions in question occurred. The
ctatement of Miss Greenfield as to the manner ia .?hich plaintiff
acquired each of the notes was not disputed "by plaintiff, ^8
defendant argues, this was n«t a case where plaintiff went into the
office of Monroe oecurities Corporation to purchase not«s that they
heldt aor ^ras it a case of the employees of that corporation shonrlng
pliiintiff a note or notes, with th« plaintiff having the opportunltj
to pick out the one he desired to purchase; that here it is undis-
puted that plaintiff zaade arrangements for a lending to he consuamated
in a v&els. or ten day8» that a note '.vould then he executed in accord-
ance with his instructions and ha 7/ould give the money for the note
whan he thereafter oame to the office* Plaintiff knerr that the astes
were not aade hy custoaiers of the corporation, hut by the pre-ident
of both of the corporations. Plaintiff was a lawyer, and had invested
in notes of the defendant nearly $20, 000 f he knew defendant well, had
done business with hi« frequently, met hia during the period ef the
transactions, and yet he states that he never spoke to defendant about
«ny of the notes. Why?
Plaintiff insists that the invoices he received froa Uonroe
Securities Corporation, the checks he gave on accoimt of the notes,
the fact that payments en the notes were made in the office of the
Uonroe Securities Corporation, aake it plain that he purchased, at
a discount, of the Monroe Secnrltles Corporptlon, notes held by that
corporation. In Cleaens v. Crane, 234 111. 215, 230, the court saidi
*The form of the contract is not conclusive of the questiout
The desire ef lenders to exact more than the law peraiits and the
willincness of borrowers to concede -whatever may be denanded to
obtain temporary relief froM financial embarrassment have resulted
-8-
;;a.« til xiJiw
SI!
:i5;«9ri
t,e
9v'or.
v-^w ,Qs5ojs si£;>' to "W
• ion tuiJ \q inuo'j < iJaToqt^^O MMktti'ssT.
'f^ , bdcsfiOTJiAi Off i«£{^ ui ''W «ncl;^A««q<lci8 aft lil.*cx: 9 ■;.>'' ooxcoM
tklAS ixjMo BAi iVCR tfiXS ,Xir ^SS ««B___ . . jaHaai^/i: • ■l^^y^offzoo
«iTOl49«>ap ftrftf '10 »Tiai/Xf)n- -: .*on rj- ih-- Tv+no-:) ©if.-* To m'iol aiiT"
-9-
In a yarlety of shifts and cxmning devices designed to evade the
law. The ohar^cter of a transaction is not to be judged by the
mere verbal raiment In \yhich the parties have clothed it, but by
ita true character as disclosed by the whole evidence, if » when
so judged, it appears to be a loan or loxbearancs of raoney for a
greater rate of interest than that allowed by law> the statute
i£) violated and xts pennltieg incurred, no matcer what device the
parties me.y have employed to conceal the real character of their
dsalingo. In Goofier v. Hock, 27 111. 301, on page ."502, the court
said* *In suoli transaction it is the intention of the parties,
not the forms employed, vihich fixen its character. If it were
otherwlae* every species of fraud, oppresBlon and wrong might be
perpetrated with r)erf'»ct imTJunity. Hence in trials of questions
of usury it has ever been held that no device intended to cover
up th^ renl ohar-^cter of the tranQRction can ever avail to defeat
the statute.* It is the constant practice of courts to resort to
extrinsic evidence to determine the question of usury. (2 Jones
on Ividenee, sec. 441; 1 Elliott on Evidence, aeo, 591j gerguson
▼• Sutphen , 3 Gilm. 547 j Heeve v. Strawn, 14 111. 94.)"
In fidelity Security Corp* v. Brugaaa , 137 Ore. 38i (l Pac. (2d)
13l)tthe eoort said (p. 50) t
'The courts do not pernit any shift or subterfuge to evade
the law against usury. The form into -.9hich parties place their
transaction is unimportant. Disguises are brushed aside and the
law peers behind the innocont appearing oloaka in quest for the
truth* lv«a the parol evidence rule interposes no objection:
'iVigaiore on ^vioonce, sec. .-414; 3S ^Zyo* Uaui-y, 1054; Tei-ry Trading
Corporation v. Barsky, 210 Cal* 428 (292 ?» 474)# If the trans ac-
tion was, in fsct, a loan of the kind denounced by the la.; of
usury, no font to which the parties could resort for purposes of
crestini fstlaa appearances of ianocence ./.ould be invulnerable to
attack by the truth: 13 Kentucky Law Journal, 375*"
la 27 H. C* L« 211, sec. 12, it is stated t
*'DeviGea to Conceal Usury* - xhe cupidity of lenders, and
the willlnf-nens of borrowers to concede whatever nay bo demanded
or to promise whatever may be exacted in order to obtain tsaporary
relief from finaneisOL embarrpeement, as would naturally be ex-
pected, have resulted in a great variety of diivioes to evawie the
usury laws; and to frustrate such evasions the courts have been
coffipelled to look beyond the form of a transaction to its aub-
fttanoe, and they have laid it down as an inflexible rule that the
mere form is iumiaterial, but th^t it is the substance which must
be considered. Ko case is to be judged by what the parties
appear to be or r&pissBent themselves co be doing, but by the
transaction as disclosed by the whole evidence, and if from that
it is in iubtta^ncfe a receiving or contracting for the receiving
Of usurious interest for a loan or forbearance of money, the
paitiet fere eubject to the ptatuoory consequences, no mntter
what device they may have employed to conceal the true charrcter
of their d etlingb. Cvcry specie?' of contrivance in tho modification
of any loan or contract, for the purpose of evading the statute,
being casee within the miechi€)f, e.xe kIbo within the remedy."
In Payne v. Fewcomb , IC-O 111* 611, 618, the court said:
"There is no more f^^niliar rule in th«? law than that the
usury laws can not be evaded by mere pretences, shifts, or evasions.
-^-
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Thia rule runs through a?.l of the 1)001:2, and requlreB the
clt<9tlon of no authority in ite support.*
We are satisfied that the trial court was justified in finding
that the notee reprecented losuis to defendant.
Defendant contends that "the most that can he said of th«
plaintiff* s testimonj, therefore, is bhr-t h« made a loan through
an agent or hroker; and the law is well settled that if a person
takes a note at a usurious discount from an agent or isroker under
6uch oircuastances, that he knows or ought to kno'w that the agent
or broker is handling the transaction for the purpose of negotiating
a loan for the maker, it is, In suoh a cas€!» a loan direct to the
iB&ker of the paper through the agent or 'broker* /Jid in such a oaee,
the lender will not te permitted to hide "behind the device or scheme
of making the transaction app^etr on its face to be a purchase of the
note* An examination of the cases indicate£> that chis device to
cover up a usurious lending, is really one ox the most ancient
devices ever put in^o practice*'* In support of this contention
defendant cites a numher of authorities* In 27 B* 0* jb* 216, seo*
17, it is saids
"Where the first negotiation of paper is an exchange of
it for money at a usurious rate of discount to one who knows the
paper had no prior inception, the cransaction is eoaunonly con-
sidered usurious, as it is a loan, and not a sale*"
In 2 Daniel on Megottahle Instruments (7th ed*) 900, the author
statees
"general rule as to usury in negotiation of the instruaant_»«»
Hence this rule may he laid downs if' no party prior to the holder
eould himself bring an action upon the note, and the holder knew
that fact at the time he received it, then no prior party owned, or
seemed to own it, and the holder who is the first owner must be
taken to have loaned the money to the maker. ••
In Fidelity Stcurlty ^orp;», v* Brugaan , supra, the court said (p* 80):
"\^here the first negotiation of a promlfisory note is an
exchange of it for money at a usurious rate of 'discount,' to one
who knows the Instrument had not acoiulrod validity hy a previous
transfer for value from maker to payee, bha transaction i& conyid-
ered a usurious loan, and not a sale: B j orkman v. Columbia Wrecking
& ]fuel Co*. 130 Or* 189 (279 P. 633)} Webb on Usury, Geo. 155} 27
R. C. L. Hsuryp p. 216, sec. I7j and 39 Cyc. Usury, 935. ■
"-ti^
X Juaajia^v
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* 10 061 « «
-IX-
In 5ylT»ft«r t* Swani 87 Mass* 134 » the court said:
"Th* tranaaction prored at the trial » by which the note
in suit was negotiatad bo the person who r ceived it as the
first holder for value » was in legal effect equiralent to a
delirery of the note by the promisor directly from his own hands*
in consideration of the aoney adyanoed to hia therefor* It was
a loan of money to the defendant on the note* The fact that the
aoney was obtained through an agent of the defendant does not in
any degree change or affect the legal character which attaches to
the dealings of the parties* Until the note was negotiated by the
defendant's agent) it did not beooae a oinding and operatire con*
tract t upon which the promisor could be held liable* It was the
delivery of tne note to the first holder, In consideration of the
aoney which he lent upon it, which made the defend^^nt for the
first time chargeable on his promise. It was not, tharefore, in
aay sense a purchase of a note ia the market which had been pre-
viously put in circulation.'* (See also Richardson v* soobee, 49
Ky. 12.)
The principle of law stated by these authorities applies to the facta
of the instant case, yihere it appears that plaintiff knew that th«
note had no prior valid inception and knew or should have known that
the sole purpose of the existenoe of the note was that it be trans-
ferred to hia for the purpose of raising money for the aaker* After
a oareful consideration of all the facts and circumstances we hare
reached the conclusion that the finding of the trial court that the
transactions involved loans to defendant is fully Justified by the
proof*
Plaintiff contends that "where a defendant fails to testify
to facts within his knowledge the presuaption is that his testiaony
would be favorable to plaintiff ," and argues that the failure of
defendant to testify raised a presumption that if he had been called
as a witness his testiaony would have supported the theory of plain-
tiff. Tb find no merit in this contention* Both parties agreed
that all of the transact ions took place "between plaintiff and Mies
Greenfield. Plaintiff stated repeatedly that he never had any con-
versations er dealings »ith defendant in reference to the notes*
The rule contended for is subject to certain limitntions and is not
applicable to the instant case. In Belding v. Belding, 398 111. 216,
220, the court states the rule as followwi
^11"
t bljsEi J two
- 1 V8 «n.. " .T ?«d_»»TX'S3 Hi
saw ;tl .toi'ii?riit Miri o;r afU to RO£>tsn'^i>l'saoo nl
»riJ ft tdi ItiaH »aeiJ'.tB(j e>il^ io vr^siii»9b »di
cu{^ e^v; il *.sXcfi?lX bXeii sd bXuco toei-jtwiq 9d-^>
Wt? to noi. . at ^rf^hlQd iii'!-i:k.'i- aik'j 9-i i>ioi\ ;-:■.; . : ■ \,
xii ,9-- . ,.ro': a'v.' il tffjlmirQ «?M nc ;, ' ' ■.•fan imi^ ivn,.
-arq . -I dxiiilw isi'ifm edi ex ©Joe « lo ■); ^a eewes \;«a
. . .. .xX
•d^ Jfldi rsrr>f lti;^«iBXq Sadi ni:%stic
-aosTw
'■^tshir.
■ tty-issii &di lo
rr biid ©#fin
"" ' ^T«^fMe ovjui blwov 'i;«o.'3J
b;. . . • - , •
-HOO IC^
ton ci bBa bnox^«;JxiijlX KiAdt
.tin
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,iiS •XXI 6«o «.^ibXaC -r ^iblotf cl .agf,;;: jna^fuf,! a^r- ,,^ oXtf nhfcjqs
•12-
•♦It 1b a rule well recofrnlzod, that where the evidence
to prove a fact is chiefly> if not entirelyi in control of the
adreree party and such evidenoe~ls not produced » his failure
to produce the evidence tends to strengthen cue probative force
of the evidence given to establish Buch olaimed fact. (MorrijB v.
Bciuitable_Life AsauranpejwQeiety of United otateB» lo-rf ]Jeb«"348,
191 ")!f«"W."i90VT the burden of" producing' eVidenoe, chiefly, if
not gntirely» within the concrol of an adverse party, rests upon
such party if he would deny the existence of claimed facts.
( Harper v. gay Livery Oft.«, «!o4 111. 459.) >vhere a party alone
poseeasee information concerning s disputed issue of fact and
fails to brinn forward that information, and it is bhovm that
it can be produced by him alone , a presumption arlBes in favor
of his adversary's claim of faot. IlLreat -est em I ail road Go»
▼• Bao on^ 30 111. 347.) " (Italios ours.T
Plaintiff argues that defendajit might have testified as to his
dealings with Monroe Becurlties Oorporation. Had he attempted
to do 80 plaintiff would have had the right to interpose the
objection that such dealings were unknown to him and not binding
Upon him.
In the Instant ease during the examination of plaintiff
Tiy his counsel the follOTJing occurred : "Vhen you made these loans
did you hare amy intention of doing busiinesa with ttr. iiuenger?
Mr. Perel (attorney for defendant)* I object. The Court:
Sustained." Plaintiff contends that the court erred in susitaining
the object ioa to this question, and cites in support of his con-
tention -Chi caga_Jitlje,&T^^ V. Kearney, 282 111. App« 279|
886, where it is stated t
"The courts of this State have held that in the last
analysis the question of whether a contract is tainted with
usury is determined not by the form of the contract employed
but by the intention of the partios."
The court in that oase undoubtedly stated the correct principle of
law, but the intention of tha parties is i.o be deteirmined from the
faots and oiroumstances of the case. (See Glemens v. Crane, 3upra_t
p. 229.) As well might plaintiff argue that defendant, had he
taken the stand* might hare tesitified to his intent in the trana-
action. Of course, In a criminal case, where th« intent is of the
essence of the offense, the defendant has the right to testify to
what hie intention waa in the commission of the act with which ha
tx-
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axil o. -lilici^Xs.
anlbnlcf Jon biio laixl od^ a,/o«:j-i aanii^efe daat; : .?i:;fa9{,cro
ertBoX
?f!.eit?-ftl ©tf# fll
sfitnj.
4tW?X 9ii«> j'.x V
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1 ©£ld rd" iutf
iJ^iti^X^f iHhisi IXow oA (•ess .«[
«Mf ifoiilv? i£. i iv
1b charged. The caaes oited by plaintiff aj^e not applicable to
the f&ote vf <sh9 instant case.
Plaintiff contends that the court permitted defendant to
Impeaoh plaintiff upon an Iflunatarial matter. This contention ha«
reference to the icatter of the sworn bill of complaint filed in
the Cironit court of Cook county in Johnson v. iipyeninu^hlej,__Ino.
We find no merit in this contention and v;hat v/e have heretofore
said in reference to that ovidenoe covers the instant contention.
Plaintiff contendB thiit there is a variance between the
allegations in defendant's petition and the proof. It is suffi-
cient to sayt in answer to this contention, that the question of
the alleged variance was never pointed out or raised during the
trial of the cause and cannot be asserted for the fir&t time in
this court. It is apparent that this contention 1b an afterthought^
ae plaintiff 9 at the eonolueion of defendant's evidence* made no
motion for e finding in hie favor on the ground tlaat defendant had
not made out a pri»a facie case. On the contrary, it appears
that plaintiff considered that a priia facie case had been made,
and introduced evidence to rebut defendant's proof as to the alltfsd
usury • %
Plaintiff has had a fair trial and the judgment of the
Municipal court of Chicago should be and it is affirmed.
JUDGMBHT XIWmMI'D*
Sullivan and Friend, JJ., ooaeur*
-c;.£ ■
. agiisiio ax
lo noli it.;, - . - ^ . .„ -csv-^ait/? nl t'^«o oi ^Hsio
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t9bjG« noe- ..; .. ■, - a '■ ^ ,■ 'iif;t
TMSMOdUL
38291
JACOB S/onniL,
Appellee ,
Appellant*
APS^AL FROM SUPSRIOB COURT,
COOK COUHTTii
28 5I.A. 593
im« JUSTICB JBRISStD BSLIVSRSD THS OPIMIOIT OP TES COUKT.
1
BotJaer SaiEUcl, complainant herein, filed a bill against
defendant for separate maintenance and on Hoventoer 27, 1934,
procured a decree froM wMoh no appeal was prosecuted. The deortt«
provided for a reference to a Master in chancery to take proofs
and report hie conclusions hs to the amount of money defendant «ae
to pay for the maintenance and support of coaplainant and of their
minor child, whose cus .ody was awarded to complainant; to fix the
asiount of costs of suit, stenographer's and solicitors^ fees; to
determine the hack alimony due under the former order of court,
the expenses of the transcript of eridenoe* court reporters' and
master's fees to he paid ¥y defendant. The deeree also proTided
that during the pendency of the proceedings before the master >
defendant was to pay complainant #26 a week on account of her support
and maintenance and that of their child, as well as $150 as fees for
complainant's solicitors, but that " by the allo^wanoe of said alii^ony
and solicitors' fees, the court does not by said order indicate in any
manner the amount that should he allowed permanently la the abore
entitled cause." The master recommended permanent alimony of #31
a week, effective from the date of the raferenoe, solicitors' fees
of 1750, found that the unpaid alimony under a prior order amounted to
XC?S8C
m
<■:£
,THC(00
, «»XX»<5^A
• j-£isXI'3q^A
,.I[gXaL\S SDOAl
86 2. A.I 5 8S '
» 31 '
' i votq
fcf;,; •«.■.
•rot ao£i i.s yaxfs aa XXsv; th » biirf-^ ti'^rf* lo *«rf;f rjtta aonanadxiJiwa lbn«
^■OkCiXii bi !■: 1o ean^'voXXB wl^ v.c' " *»nj ^utf ,oio;>2'>ixXos a »*c«wii«Xiiai«o
0« ol •iBOibni i»bM bins x^ ^o" aeo^ J/uod ori.* ^nsel: <exoJioiX«« bnm
Kl \» yiwmlXn onsnaEtrteq 6abntftwtod©-i •ro;};iiJ5ai ©li' ' , -ow^o bBlitit»
■•el 'eiOJioiXoc ,»9n9T9'iei ad* to Biab &sii taoil evidoslla t3l9«w «
i *e#cu;a«M xebsa lolrq^ a 'xabfiw vnomiXa bi«^nij oxfa Ijsri* bmjo^ ,08^'^ lo
|559f and reooauuended ihai lb \)e paid» fixed the ms.ster'0 oharges
at |768*02» reporter's costs at ^492 and complainant's ooets at
#44 .SO* Except ions filed &o the «adter*s report were overruled and
a eupplei&ental deeree was entered in accordance -viith the recoaivenda-
tions of the masiter» except that the eolicitorB* fees were reduced
froM ^'750 to $500 and the master's fees were reduced to $400, 'Defend-
ant appeals froa the supplenental deeree thus entered*
Th« parties were oiarried Novcwber 9» 1930, and lired to-
gether until Jttlj 28, 1932. One child w&s horn of their marriage.
Complainant had been a school teacher in Chiccgo prior zo her
marriage, and had ne income or property of any nature. Jefendant
is a physician and surgeon of some fiite^m years experience, with
an offiee leeated at 91st street and Commercial avenue, in 3«uth
Chicago*
Ifumerous points are raised hy counsel for both sides re-
lating to questions of fact and law applicable to a voluminous record
of more than 800 pages. The ultimate question in controversy, how-
ever, is whether the circvoastanoee of the pari;ie8 and defendant's
income from his profession and otherwise warranted the chancellor in
decreeing that defendant pay the various sums recommended by the
master for permanent alimony, hack alimony, solicitors' fees,
master' 8 fees, reporters' oharges and costs of suit*
Compli^inant testified that shortly after her marriage ah*
asBiated defendant at his of lice four or five days a week, kept a
record of the patienti who did not pay cash for services rendered
them, and sent out statements at the end of each monthj that day
by day she and defendant went over the entire list of calls aado
by defendant to ascertain which of his patients had paid, and that
the names of those who did not pay were placed on cards | that the
aggregate cash receipts from patients amounted to HO or ^50 a
-s-
a»ax«f(9 s^joi-isa ©if* hsxt^ ,bx/jr imij b&i
- ■' -Sir?? ^flwo* T vr
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sn-'
,6331
[JOS SQ<^$ J.8 Si) BOO a'lecito^^x ,SiO*8d?4 iB
^ ■ . .u -i 1 i Xjeuj edT
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iftfitfoS nx ,s!;rv.v. Xfiiai©iamcv.) fanji; ■a-eeiv?- lUjI? ss bj»jf
bnor
si 'x«IIf>omiiio C'rfJ '■-itnjT.
90B SjyBi. -'i; :..
hot^i^*-! a&olr\'>9 ivl ■:=-;ju ■'<;^cj ^oi^ bit oU
X«^ Jiuij uiinpn AoAQ to bat 'ow-^ajj
%Ai iaic \ab%.-
Aajf •xcluelre of i;he charges that vrere entered on the cnrd
reoordsj that her asslet&nce to defendant continued from ^Jovmbext
1930, until shortly "before the loabj whs born In March, 1933. She
testified further that prior to the birth oC their child dftfenda»t
gare her $35 each week to corer food, clothing, help sm'^ incidental*,
and after the 1»lrth ef the child this euin was increased to $50 a
week, out of ^hleh she paid the same expensea; that during this
period defendant paid |70 to f 75 a month for ..he rent of their
home, in addition to his of i ice rent, expensea, Inaiiranoe and other
neoeeearieB, which amounted in the aggregate to about 1 1,125 a month:
ineludiag what he was paying to the banks and for installmenta on an
autoKoblle purchased during that period for §1,000.
It appears from the evidence that defendant engagedin th«
purchase and sale of Tarious securities since 1921, and carried
accounts -wi'ih four different brokerage offices and two banks during
the ensuing period and until about 1S33. The record contains
amserous exhibits showing statsnients froa the hanks i^nd brokerage
houses with which he dealt, indicatlag that up to 1929, ths peak
ye-^rs, his accounts ran into many bhoueaatJ of dollars and continued
in lasaer amounts for several years thereafter. Through these
transactions defendant undouhtedly made substantial profits.
William 1. Hohumaoher, a witnass caled by complainant,
testified from the records of the South Chicago Savings Bank, whse
defendant maintained an aocount, that during the year 1931 defendant
paid the hank in cash |l,715.90, and complainant contends that this
sum was derived from defendant's earnings in his profession during
that year. Harry J. Rolewieip another witness, testified that he
had charge ef the records ef the Union State Bank of 3outh Chlcaip f
and hy stipulation of counsel it was agreed that defendant paid in
cash and not for the sale of collateral ^5»600 during 19;il» ^hich
^^
BSiE
i'3jtf tap.:
nisr.
Il« CO Bin; ffill
bes^BxiS" ^
ei..
"^0 f'.lBO' "?» ii»«?
£oL
i Siiitwc 005 fO
cOBplatnant also contaada wee. taken from his professional ep.rrilnift
during that period* The aggregate amount, thus shown to haTe been
pa-iA by defendent to the two banks in 1951 was |7,315.99f or an
arerngB of f609,66 a month. In addition to this sum, defendant's
monthly outlay for oash, during that period, acfording to complain-
ant's testimony, was OlSO for their horns expenses, including foed»
clothing tnd ineldentala, $90 rental for their apartment and garage,
|156 for office expenses, #20 a month for laundry, gas, eleetric
llf^ht and telephone, and i^lOQ a month on account of the purchase of
a new Buiek automobile. The total monthly outic^ during 1931,
including the sums paid to the two banks, approximated ? 1,125. Com-
plainant testified that defendant's income was more than $1,200 «
month, and the foregoing items of expense incurred during Ifee year
1931 were introduced in evidence to sustain her conclusion whieh was
baaed on information ac.uired by her while assisting defendant at
his office, indicating, as she testified, weekly cash receipts of
from I 250 to |350.
Defendant by way of defense produced record cards tending
to ohow that during the twenty-three months preceding the hearing
before the master his inoomo, deriyed entirely from the practice
of medicine, amounted to the grosn sum of $5,618,215 that his total
OTerhead for professional practice, including insurance premiumo
daring that same period, amounted to f 2,469 .90, leaving a net in-
come of t3tl48.31, or a monthly average of Jfl36.88. It is argued
that in no event should the reasonable payments for alimoi^ to support
complainant and her child exceed one-.hird to one-half of defendtuit* »
income, and that in the light of defendant's tea-iimon;' the amounto
fixed by the supplemental decree are so inequitable as to warrant a
reversal ther?(of.
3)efendant denies that he gave his wtfo an allowance of #35
a woek prior to the hirth of their child and that ho increased tho
«F xo ,fee.5IS. -C'SSI rJ asiux^ttf ow* »rf.i o* ittuhmsi^h x^ bt^
-nii?X^floo 0^ anlbiooij ^boiiffii ls££i saliirb ^if «»»'«** J^iaa© >^.ifW«
9ai:i£S bite itxsr :.ii-:ir.0X ,0*$ ,8L£,fli«»fti^lsi Iwt . ■j^tdi^.L^
1© »6i/«iioii/q en ? r5or{c^f?X«# feiw JrfstJM
tS£Ql sniiifl"' X^IUic v.Irf^inoffl I«i^o? sriT .®IrtfPj»D^B« csJaJfiS wee a
« r.QS,.':'-' nrr'" - '.^oq '■••- ^"^rr-' ' . rfo&n^'i- ■ .. ■ fjfjJ:lM»t^i^ tuMUlBlq
-^.A- a :.;; ■] ■ n.toT'^r.Tnl: ^di bits ,rfjf««»«
eoJt^ofiTq: e^JJ jBoi't \lbxiia9 b^riisb tsciooKi Ksiii ttaitws sriJ istolo^r
X«;foJ aixJ isri^t ;XS.8I0,e'? lo {our boi: u^it'iuj^cm* tsnioihs-m li>
BMUii^-xq &on«iL'Bai "ifiibJjXottx t&oii-: oiaso^oi^ tflt ftiJoilisTO
b^u^iA ..iQtbi^l'i to 9%x.'.x9r^ xltOfctom /? o tXA.ei^itSl 3:© ««tr9
■wri»0nc«g «»Xtf«itOBP< >• rr ci i»di
"' ■ ■ J ■ 'itiSfihiTrl©'. (.:..;
•He to«a«aoffi: ftii iBsLi boa blxii-i i^exfi lo ditkd ojfrf Ov+ Tr.>«(r 7t'>»ir «
-6»
allowance to t90 a w«ek after the child wpb Tjorn. He stated th*t
hie office rent at the time of the hearing '.v^g ^27#50 a month, bar-
ing "been reduced fro* t'35j that he bad no assistant in hie offio«f
and a dentist next door answered his telephone and took hie calls
when he was outj that his clientele is made up principally of the
laboring class » from the steel mill district, many of whom viere oat
of work and were unahle to pay their obligations? that his offioe
hours were from two to fire o'clock in thd afternoon, and from
B3Ten to nine in the evsning, in addition to which he made calls
during other hours of the day and used the Buiok oar, purchased la
April, 1921, for that purpose; that his garage rent was f8 a months
that he carried life insurance to the extent of #5,000; and he
denied that his practice had at. any time amounted to $40 or $50 a
day. He testified further that he kept a daily cash liook, beginning
in January, 1935, wherein he entered from day to day his cash re»
ceipts, and this book was intreduced in eridence. In ad 'Ition
thereto he also produced his eard record system, giving the names
•f pat lent a » the amounts of the ah.B.vgen and the payments made from
time to time. To supplement his cash book and card system, defend-
ant prepared a sumtrna:)^ in which he set forth, month by month, fer
the period of twenty-three months preceding the hearing, his re-
ceipts, offioe expenses, insurance premiums and bis net incomet from
which it appears that for these twenty-tiuree months his net income
amounted to $3,143*31, or an average montlily income ef ^138 •88»
Defendant kept no record of his disbursements, otho- than oaiicelled
checks and receipted bills*
The income sheets produced by defendant were» aecordlng to
his ovm testimony^ made up from the record cards v.hich were kept la
his desk. He stated that prior to 1935 he failed to pu^ down the
year on his oard record, and was "kind of careless. I didn't think
it was necessary," T»at that in 1933 he changed his plan and began
•e-
, id ax irs:sc.i
;»i yjXiTX,; j.ncvf;-^.::
A.sisJuvc£iJS o'i .eailt o3 «8tl^
♦ aXIxcf tM»Jq;i5».o»i »»« «Jio»rf8
Ov itifti. toooA %.9fm 7fcsl}fi&)i»b x<^ jQ^tiurbcxq eJt3»iia MKOO0J: e»ii't
ax v'^twi 3rt9u rioi.l abrtao fatosfit ^di w^t\ qu i^imy tvnosjt. ^^i avio niA
Ir. - ' .»a9X9~ ■ ? .
cui^cT tttM until mi A bsaii :
iQi ( itnofii x^ xi. noifl «iio'Xf
isoal «&aio .
auooj -
noting tha year during v^hloli the serrices vare rendered and pfiy-
meats made. To support his testimony defaadnt produoed one
John Springer, v»ho testified that he had be n sngagad by defendant
to examine :he cards and if possible to bring some order out of
chaos* Springer teatifi 3d that there v/ere approximately 1,000
cards, and that mor.i than one-hcilf of them were not d.ited > that
"from the age of the cjirds they might have gone back ten or fifteen
years. I could not determine that." The master found that defend-
ant's records were incomplete and incorrect, and that "no oomploto
set of books was kept by defendant." This is borne out by Springer ig
testimony, .«ho merely sumiLarixed defendant's receipta as indicated Ity
the card records from July 1, 1933, down to December 1, 19S1, and
stated on croso-examination that he found errors in defendant's
computations, indicating that items agrregcting f351.50 hex not been
included in his total and t;hat iteaie amounting to f'Sl haci erroneously
been duplicated in the list prepared by defendant. ?or the period
covered by >>pringer'B examination, defendant's cash rsoeipto amounted
to approximately ; 5,700, but no aatisfi-ctory aho»ving is made as to
chai'ges other than cash derired from his practice. It is solely fro*
this evidenoe that defendant concludee that his average monlhly in-
come during the period of twenty-three o^ontha preceding the he.riag
was |136%88*
Complainant's counsel sought to impeach defendant's testi-
mony by shoeing that in April, 1933, a petition ^as pending before
the court recuiring defendant to show cauee uhy he should not be
attached for contempt for failure to pay alimony under the court's
order, and that defendant then filed his sworn petition praying for
a reduction in alimony; that in his ansTver to the rule d^fendf^jit
stated that "his average income at the present time from all sources
is approximately 125 gross par month," and in his petition for
reduetion of alimony he made the same statement. Upon the heariac
f.io sffles 8«i'.- Jir!8oq 'ii bos sifitzo (^Ats- BriimTUB 9$
- .nelab Jivta ^jft; iia »riT - -imt^isb ion feiJaoo 1 <.&t^\
r.i.ii'nji^iu . - ■■■ .'■-:'<"■' "''' ry "'buloai
«o:r^ ^JI--;Xc' .'.ol*o«t<i aid ate i bsviisb i- o asAi. ?«il<o a^ag-iaMo
•Totetf ^ai'.Heq ei, ■ n^ if&it$, a»ir«oria -ygit -^p«
rtoi*i^»f/ move. . i-mim^lastit 4»tLi btus tiaJbi©
-7-
before the master* riefendant admitted these atataments were un-
true, and sought to explain them >y ewylng that "it ought to hare
been tl2S net. I think I vjsb Bistaken." Th? period covered by
defendant's answer to the rule and his petition included the months
of April and June» 1933 • It appears from the record that during
prll of that year defendant's income v-'as aa followe: Cash receiptB»
'90.251 card Index, Cl56»50j receire!; from ICoyea & Co. (brokers)
|'.571,89, - Making a total of (318. 64, Hia expenses for that month
were ^159 .81, leaving a net income of * 658 .83, instead of -125
groBs, as T^as atateci in his verifisd pleading. I/uring the month of
June, 1935, defendant's cash aocount shows receipts of $98.50, in-
come as shown by his card index of $132, making a total of $230.50,
as against an expense item of .t67.85, showing a net income for that
month of 1^162.65, not including sums derired from sales and trading
la securities duxing that period.
In addltioa to the income from hie profession and profits
made through the purchase and sale of securities^ the evidenoe dis-
closes that defendant recslTed a one-third interest la the estate
of his father, which was pro1»ated prior to the hearing 'before the
master. There is evidence indicating that subsequent to his father's
death defendant transferred real estate and securities to other
members of his family, and made payments to his mother which hs
stated were on account of advanees made to him by both his mother
suid father, and for board due and owing to his mother af ^er he ha4
become separated from complainant. Many sf these tranaaotions were
negotiated through defendant's brother^ who kept notebook memoranda
thereof and testified with reference thereto. The record is replete
with contradictions as to these transactions, howevery and it is
difficult at best to trase the various items paid back and forth
between the members of the f mlly as shewn by the notations in the
•▼3BJJ ' z^>' "^^T aroriJ ffi/U[qat» »^ drffiiros bee ,«sir'ri
-ol ne-x.n--.qy 'J
"■.•ft 'T T-G "^ £ , I ® * C? I '"' S 1 9'*
3*xtoTq fan* floieeelo'Ki aW aoxl »aio&f<i srfi oj HCii
i^radiat aid oj i«eupearfAi, ... :,.,. , _i- x
ftaiC ed 19. In lerftfuD.
*teexoflD»ir -'- - - '- ;» " • ^ — ;■- - f ,' n ■ '.f,,. ,
9di ai mn^timica etii xd xt^od^ ss \Llmi^t ^rii 'zo BtvdamK edi assw^ad
-a-
meaorandum book and as teetified to 1»7 defendant and hie brothor*
WMle conceding that defendant dealt extenairely in
eecuritles during a long period of tine, both before and after
Mb ajarrlage, running Into vast suas of money* and that during
the year 1931 he paid to the two banks homlnbefore mentioned suns
aggregating ? 7,315.90, in addition to the expenses of his household
and offioof inauranoe premiums and installments on hie automobile^
vi/hlch, based upon the most reasonable estimates, exceeded a monthly
arerage durlag 1931 of | 1,000, it is argued that this evidence is
immaterial to defendant* a earnings and Income as of the time of the
hearing before the master. hile it may be true that defendant's
Income from both hie profess ioxtal practice and other sources may
have decreased subsequent to 1932, when the parties separated, tho
evittence throws some light on the station in life of the parties
during the time they livad together as husband and wife and It cer-
tainly tends to corroborate the testimony of complainant as to his
income from professional souroes at an earlier period and to afford
a guide as to the relative credibility of the parties. hile the
master's findings are not concluslTe and may be reviewed, ^we think
that a eareful examination of the record, upon the salient question
as to whether or not defendant had a sufficient income at the time
of tho hearing before the master to justify the charges contained In
the supplemt^sntal decree; leads to the conclusion that the evldenee
abundantly sustains complainant's contention that the sums fixed by
the supplemental decree M^ere reasonable and in keeping v/lth defend-
ant's income from his profession. His contention that he had a net
monthly income of only #136 for the twenty-three months ending in
December, 1934, is not sustained by the evidence. It was incumbent
upon the master to determine the credibility of the various witnessog,
including the parties to this proceeding, and if he fovuid in the testi-
mony of defendant such discrepancies as would Justify him in coo-
eluding that defendant's testimony was not reliable, and that ho
»^9di9i<l bIA bus* jftsbr-a'tsD %^ 07 fesxixcrfta jb.f; >)_{%» 4:9^^ aubaaxtmsm
3i*XMj"- J --.a.. ( . • ^'fcfiv o^faJt fir' •■ , ■;•■ '-.ai aM
oxlesJJorl sxxl to sesftscr' ;oi:<Jl£.i>. ; . ., aaii^aaaTg^
x?lidososur e.ld no ainwaxil^j- ;cififixaipi<i »'0*j'«*x»»ii^ t r- •:) v "^ • o biis
Xfia aaoxuov. 'x&rfd-o bns 9oi:t- iri xIjcq sao it swooal
:iJtitBb
bto'r': ireq t ,:'^?i0i^^%aTfI laotl eaooci
©xfi- , --x^rrpg - .•; sblv^ B
fiOlJfjfijj.-' Jnj»iX;--.o '-/i.' :io... (J , 'Sto /tv'j: sj-l; . ; .tj-s/txiJiftx,' XiflO'iyo ,e Ssiiit
.. _. -. . a»aT«i{o ..- -,.-.,.;. >.„ ...w.. .^ .. . .V . ~ ...... . -.► ..>
iq:!-aa[ ax bfts 8>X<l*ir -'•■'• --^ ...^.-x .^ X/atHK'i3l!»iq;Qua *ii;)
"''•'''■ " '"■^ •■"' . ■. . -:;:. Luxv; '-.ill taoii otBOoai. B'*iaa
•-'on.'faivo wxlw xt Li&iJXijj-eiw ;toii: ul ,:."r.&X , r)t»<fiafir0«Q:
iiB9i 9iU fil boiXfti aii \t ;>a» ,sfllft©«owct #W* e4 ««i*')UH[ erf* litrlfeyX^Bi
•lit 1ai{« hoc (elcralXot .foil esw ^c^OJoii^efttf A^iBMba»t»b ifjufi sniMflo
.9-
eought, unsuccesfrfullyi to ainimlaa his eamlnffs and aaasts dttrlng
the period in question, the master was Justified in placing greater
reliance on the evi-^ence adr;uoed by complainant and in makiag tlia
recoBuaendatiens adopted by the court and incorporated in its decree*
Defendant els© questions the Bolicltors* fees allov«ed eoa-
plainant and tie master's charges. We have carefully e.camined
thaee itema* vid so far as the master's charges are coucornod vre
find thea reasonahle. It is urged that in computing solid i>ora*
feee the master and court allowed oomplainant* s solicitors to in-
clude serrices rendered in the prohate court. Te think the services
were necessary* The proceedings In the probata court were had
during the perled in which the separate maintenance suit wae pending,
and the services rendered by complainant's eolicitors vers calculated
to discover and develop assets belonging to defendant, and sera
properly included in the award* fter a careful examination of the
entire record » we are satisfied that the supplemental decree is
based upon sufficient evidenoe an'? that there are no ao nvincing
errors for reversal. Therefore the decree is af -Iriaed*
AF^IBMSiS.
Heanlan, F* J*, and Sullivan, J., concur*
fasuxuwxs -^XXii'iDrr.so ©Vf- . a^gxario s'tei»iS«t ^ r* ham iamtk&lq
• twortc: <. <;sTii£» < . '.. . <aeiiiMiR
38325
m THHl lli!A?TJ?rB OF TH!?: lil3fAW, OF
OTaSHlA CRIMP BRIMS, MCEASSD,
THE FIRST lATIOHAi BAlilK OF
GElCAQOt execwtory
Appellant*
^ALTm CBIMP, ALFBMXi CKIISP and
SISSSIS CRIMP HAivVST, olaimanto^
Appellees*
APPEAL PROM CIRCtJIT
COURT OF COOK COUNTY.
28 5I.A. 5 94^
MS* JUSTICB raiElK) DSLIVMtSD "THl OPHriOir 05' THS COURT •
Eageaia Crimp Brldgat tlie testabrlxj died January 20* 1929*
Her estate v/aa probated and letters testamentary IsBued to tlie 7iret
Union Trust & Sayings Bsoilc* Deoe&1»er 3» 1929; /.alter Crii&p» Alfred
Crimp aad Basaie Crimp Earyey filed their claim against the estate^
and upon hearing 'before the proi>ate court the claim nas allowed on
June 21, 1930, for |57»473#53* J'rom this order tho executor
prosecuted an appeal to the circuit court, where the claim was
allowed Decemher 19, 193C, for |31>516,74. Thereafter claimaati
apje'ealed to the appellate court where, on November 24, 1931, judg-
ment T/ee entered allo^iing the claim for 458 ,948. 19* The executor
thereupon appealed to the jupreme court, where the Judgment of the
appellate court waa affirmed at the February term, 1933, and rehear-
ing denied at the sub sequent term of oourt* ^^hile claimants wore
taking steps in the probate court to enforce the payment of the
claim, the executor, on October 25, 1933, whioh was four years and
nine months after the death of the testatrix and more than throo
<■■
sscss
^t.^ .ii.I 2 8S '?
bl££i
vt
.JiW
lodut vi- '..j'.:o axiij inou^ ,e3.gV:^t"5'*2^'p ^ol tOeCX ,12 amit
OtJlt;- il-.r.. „i.Ji:. ... ... _ ,...,, .^^^„ ,.>.....or4 0iiXn
-2-
years after the original allowanee of the claia in the probate
court » presented bo the probata court "a petition for Xeare to
file a petition im the nature of a bill of reriew to reriew the
allowance of the claim of lalter Gximp, Alfred Crimp and Bessie
Crimp HaxTsy*" To this document was attached what is designated
as a "petition ia the nature of a bill of review to reriew the
allowance ef the claim of 'iialter Crimp* Alfred Crimp and Bessie
Crimp Harrey*" which included the affidavits of Fraiik H. MoCulloeh
and James H* Cartwright. The probate court denied the executor th«
right to file the petition^ and upon appeal to the circuit court a
like order was entered » from whioh the executor now proeecutes
this appeal*
The olaim la the probate court was for money collected by
Bugenla Crimp Bridge » testatrix* as trustee for claimants under aa
agreement dated December 29 « 1893f made by her in her own right am4
as executrix of the estate of illiam 0* Crimp* father of elaimants*
and Hzekiel Smith and Joseph Saetman* The claimants took the
position that all knowledge of t^he trust agreement and the moneys
paid thereimder was fraudulently withheld and concealed from them
by the lestatrix* and that no knowledge of the contract or the moneys
/paid ever came to them until after the testatrix's death in
January* 1929*
The executor's petition is a voluminous dociment* appearing
on pages 4 to 56 of the abstract of record* auad is predicated upon
evidence alleged to have been discovered since July* 1933* of whioh
claimants are alleged to have had complete knowledge* thus barrlmg
their rights against the estate ef grounds of laches. The petition
shows the allowanee of the claim in the probate* circuit and
appellate courts and the various proceedings resulting ia the
affirmance of the judgment by the Supreme court* The ooinion? of
the appellate and supreme courts are set forth verbatim therein.
•s-
9tLi heirt-- *x«JaK sa? ni «ol;rl.ieq m dill
• isaea ba^ qatliO feaaiX - tiii.. io ralBla ■ ortJswoXXa
•rid :rojJiot
. -^'-i. tb&'mti^& saw %9i)7& ©3111
•XA@Qq« aJtttt
LUfcLfStt
w|f,x ,-rt s J hX.j3q
lt»no.
Sfll-ti/^e ..in;.
T^YoyajV' ivj'j
{
•it xtf
1 ^
•.;x; ;...•>:.» . :
"■■ •..'.: ^ Bo^JSii no
ow Dt'i^siXB ©or
It is alleged that in order to aroid tlie defense of lachejij^
Interposed "by the executor to the claiut vaxloue rrlende and
neighbors of daceased testified t.liat they had never heard of the
existence of the trust and uhat .alter Crimp » one of the eXalmantSf
stated that after reading the will of his iaother» the testatrix*
he made a search In uhe recorders* offices of v/ill and Cook
counties* the office of the clerk of the prohate court y interriewoA
certain lawyers and officials of the Continental Illinois Bank t
Trust Company, called upon certain friends of deceased, and tbat
the first time he saw a copy of the contract involved was when it
WPS produced in court on July 11, 1930. In order t© seet the
aforesaid tsstimony of clnimants seeking to avoid the defense of
laches, and to show diligence on the part of the executor, the
petition further alleges that the executor and its counsel spent
much time and effort searching for evidence of knowledge on the
part of claimants of the existence of the trust created hy the con-
tract in question and in searching for the originals of releases or
evidence as to the contents thereof^ and that within t'^o months
prior to the filiag of the petition no such evidence from competent
sources had "been discovered or brought to the attention of the
executor*
The newly discovered evidence upon which the petition is
predicated and by which the executor sought to prove that claimants
long had knowledge of the existenoe of the trust, consisted of two
items, first, the letter of Patrick J. Sexton, assignee of the
interests of ho.h Smith and i&stman in the contract entered into
by them with testatrix, which was found in the files of the circuit
court of Cook county in cause No* 263,174, being an appeal hy the
estate of Patrick Jt 3exton from the allowance of a claim in the
probate court filed by Szekiel Smith. This purported letter was
attached to a stipulation of facts and was dated December 26th*
iV; J stadia ( - )*uyis»Ji:ffl »ia[4^ -^cf beto^iaitxti
iooO bits I aeoillo 'B-ofctoa^el ©^ ts«« a sfcsa «lf
, 9B«t)osb lo sfansirl niai^ea noqts beilBO «"^tit«q:£a«>0 tswiT
; o;.S'.:;]"JCi'b wc-is o:* fcH.ffl tgedp.gX
^j^^ . ^ ; • ^^- , . -•.iJi:'J>q
ati.
il iwliijaq oif^ itolilw aoqu eonobJva betiawoaib >cXw&it ©lil*
0i.i y.0 boSaiano:, «ii;U':^ wXwOfssC bifSi ^^^X
Oli^ 1o ftj^fiir:;!- I.'-' tn': ,..•..•::.. -»•.,.■ < ■ '
, . . y^
etlS ttf ■ '. TX,«*« .
XXs dxtv io 9iaiu'B
There was no yeax after the date. That portion oi" the letter whioh
is material to ths Issues herein liivolved followst
"ilrs. Crimp vvasi here v. fev* dayki ago a,t- my suggestion ehe
1»rought Dflth her tha account of charges she had zaade on the children
ac c oun t and the piacjBt /boy t^nd the ^-irl^ were also with her . Sh»
tallced to theai alBout turniag the m.t ter oVer to her and t^y eald
they" VoVld iTke to hare l"i arranged That way «"
Second f a letter presa oopy of a releftee dated December 20, 1904^
found in the letter press book of McCullooh & McCulloch, aUorneyt
representing the executor of the estate of PEtrick J. Sexton, de-
ceased , the material portions of which are es follows;
••Chicsgo, Decanber 30, 1904.
Ym AND IM COHSIi>.SRATIO¥ Of the sum of 'fwelye Thoueand
F/re Hundred "Oollara (<; 12,500) bo me in hand paid, the receipt
of which is herelay acknowledged, I I^genia Crimp Bridge (formerly
Sugonla Crimp), as Executrix of the last vjill and testament of
WlllloBi Q. Crimp, deceased, as trustee, and in ray own personal
right, and as assignee under and "by rirtue of the terms of an
assigrawnt executed the 25th day of March, A. 'J» 1902, hef»7een
??alter U. Grimp, Alfred Crimp and Bessie Crimp, parties of the
first part, and "lugenia Crimp, party of the second part, of the
rights of Salter 1» Crimp, Alfred Crimp and Bessie Crimp in she
contract entered into the 29th day of i^eceaber, 1893 between
Izekiel .^imithj Joseph ISastman and Jugenia Crimp, and the proceeds
arising therefrom, release and discharge the estate of Patrick J.
Sexton, deceased, the Merchants* Loan and Trust Company as
Hxeotttor of and Trustee under the last will and testament of said
Patrick J. Sexton* dece^ised, the widow, heirs, legate€;s and deviseea
of eald Patrick J> >iexton, deceased, Bzekiel f;mith, Joseph Sastmanf
and their reapeotire heirs, legal reprasentaiiveti and fe.3tign8 from
all claims, rights and obligations of erery sort and nature. * * *
I Ti^lease- and discharge tha eatate of x';,T.rick J. 3exton, deceased,
his Executor, ^idow, heirs, legatees and deylsees from the claim
this day allows in my favor against Lhe estate of said Patrick J«
Sexton, in tlae Probate Court of Cook County, * * *. '
Attached to the petition is the affidavit of James H*
Cartwrl.^ht as to the diligence shown by the ex cut or and its nttornaift
in searching for evidence to sho^ that claimants long had knowledge of
the trust agreement, and the affidavit of Jrank H« McCulloch, stating
that >.ie had prepared the original release from v/hich the letter press
copy was made and v^as familiar with the provisions of the contract of
December 29, 1893 » as well as the various assignments thereof men-
tioned in the letter press copy of the release; that vhexk the release
was drafted he "satisfied himself that said assignment did in fact by
Its terms assign to 3»geala Crimp all of the interest and rights %t
dotdw tracf.
It'- f : -. .
. bXiUO ^
\l'^:
sLt,
ITOO
^tf »o,t f!i bib itmautsji
\0 s^djilT bm jTbots.,.^
... Tia
.. I3 Xlfi
It I
;iXi
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:< '. f .• i,f).j .
-5-
Valter E* CrlMp* AlfrecH Crimp aad Bessie Criaqp under the oentraet
of December 29 > 1893 1 and that "before permitting the Uerohanto Leaa
is TrttBt Co* to pay to l<}ugenla Crimp Bridget personally* the »vm of
TwelTt Thousand PiTe Hundred ($12,500) Dollars he satisfied hi«»elf
that said assignment was genuine***
Aside from the contention that the prohate court had Juris*
dietioa to reriew the ellowanoe of the claim, it is urged that tho
petition stated suoh facts as ^ottld not justify the court in refus-
ing to reriew the same. It is argued that the preferred erideaeo
conolusirely shows that the trust had been discussed ia the presenee
of two of the beneficiaries aad that the third had joined ia a re-
lease of his rights thereunder* The forepart of this argument is
hased apon Sexton* s letter of I>ecefflber 26thy addressed to sSsekiel
Smithf wherein he purports to adrise 3aith that Mrs* Crimp had called
on him shortly prior thereto at his suggestion and brought vtith hor
the account of charges she had made against claimants* interest ia
the trust, and that "the oldest "boy and the girl were also with hor
she had talked to them about turning the matter orer to her nnd thoy
said thoy would like to hare it arranged that way." By this letter
it is sought to prove that the testatrix had kept accounts and that
two of the claimants were at Sexton's office with her and therefore
must haTe lesxned of the trust agreement. Helatire to the questioa
whether testatrix kept accounts, her oldest daughter testified on the
hearing of the elaia in hoth the probate and circuit courts that her
■other kept no books, and in fact no hooks of account were orer
found. Oa the secoad proposition, one Jacoba# Sextoa* s prirato ooa-
fidential secretary from 1893 until the time of his death, whose desk
was in the seme office with iexton, immediately adjoining it, testi-
fied that Xrs* Crimp always came to Sexton's office aloae and that ho
had neyer seen claimants there. These claimants were not parties to
the iexton litigation in the circuit court, nor is it olalaod that
Ci
itxAiiac ban qm. '»a &«« «pfri'rt3 fo»'x'ilA ,5KitO «f: ««J#iW
doxq sri aox J ftes^HOo »xla' aoil ©bis a
^lij^BAfi
•axi ^aw
1©
jftf
vfljuoouvi; jqtni bad xii;itiif
a* OJii ,;" .'
!iB*h f;f.ot{ir ,iSJt»b «ta to Oiai. .ijiur '^eftX r.-fo-rr •^•r'-J;Vf
o5 nefir^' •.■■■ ,-tt,.
■flif
;iro
tjasLi l»«tti3Xo ;ri «ii ion ^ttucu iiis^iio *xii^ ni aoxj^aijix no^Jxs eil*
•"fin*
they had knowledg* ©onoernlag either the litigation or of tho
letter upon which the ne-s/ly dlBcoTered eTldenee Is predicated.
In fact, It is not contended that they had any knowledge of the
exieteaee of the letter or of the proceedings until disclosed by
the filing of the executor's petition to review the claim. More-
0Ter» nhile the letter states that he two children were with her
when 8he called on Sexton^ It does not say that they ware in the
room» within hearing distance of the conversation allegod to have
"been had "between Sexton and Mrs. Crimp, or that they were parties
to the convereatioa or understood what Gexten and Mrs. Crimp were
discussing. That portion of She letter which states tbat "she
had talKed to thea about turning the aatter over to her and that
they said they would like to have it arrange^ that way," does not
refer epeeiflcally to the trust moneys, and no definite inference
can he drawn from the statmient alone that she referred to the sub-
ject matter of the trust. Both Sexton and Mrs. Crimp were long dead
when the claim was heard in the probate court, and the admissibility
of the letter upon a rehearing is extremely doubtful, inasmuch as ne
opportunity would be afforded claimants for cross-examination as to
the trutfi er falsity ot the matters set forth im the letter or ef
showing that Sexton was mlsr^aken, or In connivanee with Mrs. Gxtrnp*
The allowance of the claim was jpredloated upon the breach of trust
by testatrix, and the executor's coiusel challenges Sexton's intej^*
rity by asserting in his affidavit •♦that from said file it appears
conclusively that said Patrick J. Sexton, in addition to other efiorts
to defeat Bugenia Crimp Bridge im the collection of any part of the
principal ef the trust here involved » kept a false set of books
wherein improper charges were made for the purpoee of convincing
liiagenla Crimp Bridge that there was no profit payable to her from
the Sanitary Sistrlet contract, * * *•" In view of the doubt thus
cast upon the integrity of both Mrs. Crimp Bridge and Sexton, claim-
ft.:. >
ari.
ion seob "♦''l** ^jaff'"* ■-'.t-K'-tt.!-: .tl •^m bias 1464^
fr»»i^ j^xiw^: .--.-
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.iv; vDx:^ /ixii-c-
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8X»eqq8 ;ri «I-i^ -irae morl is^t,
s:fo«(f lo 5'
zoLi Utah's. 9Ai to veiv
»a£ tbdvXovni ^iss
vIeifXoitoo
ante oould hardly "be charged with knoi?ledge of the troct upon tlie
faith of Sexton's vague reference to thclcr presence in his offioof
even though the letter wore admiBBi'ble in evidence. In GBrllck v»
Mutual Loan & Building Ass*n| 187 111, App. 591, a bill of review
set up ntijwly discovered evidence consisting of a report found in
the state auditor's office in which certain admissions from the
secretary of the loan and lauilding assoeiotion were set forth. The
writer of the report was dead, and the court gaid , "at most the
shooing is that plaintiff might hare proved eomething hy the in-
specuor (i«e*, the person making the report) if he had not| ttn<-
fortunately^ diod.** e think the utmoat importance to he atiacheA
to Sexton's letter was that he might hare been a witness if he
were alive*
The letter press copy of the release, which oonstitutea
the other item of nevly discov^ref^ evidence upon which the executor
sought to have the claiE reviewed, was found In the letter press
book of MoCulloeh & iioCulloch, attorneys representing the estate of
Patrick J. Sexton, deceased* The Merchants Loan & Trust Co., as
executor and trustee of Bexton^ s estate, were paying liriageHia Orimp
Bridge 112^500 in full settlement of her elala against Sexton, and
a general release was prepared to p.roteot the hank. By the letter
press copy the executor herein sought to prove the recitals made in
the docuiBent and thus lay basis for the clalB that the beneficiaries^
elaisants herein, hnd in fact themselves assigned all of their in-
terest under the trust agreement to 'Eugenia Crimp Bridge, their
stepmother. It may be af>eumed that ICr. UcCulloch prepared a re-
lease at that tins to be signed by olainiants, but the original of
the release wns never produced und there is nothing la the letter
preea copy that could be conBidered as competent evidence oo prove
the execution of a release by these claimuats. Mr. MoOullooh's
affidavit stetss that he "was advised that alter S. Crimp, Alfred
iO gal.sJtaiton sacebiv© bftt@vo^oi : qw Jos
ao»i
ni •bMU eJ' ' r'.t sto o^fi/i^ftJif
-', >j<*l art- ni sixfjl.}9{i . ■ ^'Er^iOTcr t^to'T?
■. ' '•:r:-U'>^ . -rT-
-8-
Crinp and Bessie G'rlaip Harvdy» the benef iciuriee of the coutract
of Decemlsar 29 » 1393f had assigned to Svi^enia Crinp Bridge all
of her right, title and interest in and to the proceede of that
contract »" ^ut it doee not aay from >«hom he obtained that infor-
mation or that he erer talked to any of the claimants or any
attorney representing them* and if he were permitted &o testify
his evidence v;ould not he any stronger than the affidaTit attached
to the executor's petition, liir^n. if he were permitted to identify
the letter press copy as a correct copy of the original releaeey
there would still be lacking the necessary proof that these elaimants
executed the assignment » and without that proof or competent eridenoe
that they h?d signed the aasignment or knew of its existence, they
could not be charged with knowledge of the trust. Mr. McCulloch'e
affldarit further states that he "was Informed** that clatniants were
of age, but he does ziot state vshere he rpceived the Information, and
eridently affiant nerer talked to claimants themselrer or had »qr
personal contact with them. The pertinent ultimate fects sought to
be established by the letter press copy and 1&. KcCulloch' s preferred
testimony were whether ol<'iimants really executed the asBignBients or
had Buffioient understanding of the transaction to charge them witk
knoT;ledge of the existence of the trust, and neither of these facts
are convincingly established "by the newly discovered evidence la the
form in which it is presented*
Bills of review and bills la the nature of bills of reriew
may be predicated upon errors appearing on the face of the record,
fraud, and newly discovered evidence. For errors appearing oa the
face of the record, and fraud, such proceedings may be filed without
leave of court. (Harrigan v. Co;mty of Peoria, 262 111. 36, 41 1
gestor Johnson itfg« Co» v. Alfred Johnson Skate Co«^ 266 111. App.
130, 138*) Where it is sought to set aside a decree oa the ground
of newly dlscoTered evidence, however, leave of court must first be
j^rf^ To abe-^oo-sc has ffir ;^ae■3:©*^?f feft« eXiii «*i!ft^i'r *c»li to
i*ii*Dii>.uj ,iOi, . _ .i.cJS9C!sn 0iCt sa-t2J«>«i; »# XXMcr jblwow exaii;^
-,.r;-. ,^- ■-, , . f.sar.ir-ir. >, > •.!:>;■ "xs^ii XI^M* *BUt#
: , , , 6-a'3..p.rfo ad cfeit feXuoo
Xa.3 f>£ff TO i2Yio-jE&a;r arf/ii^- ■; Y.X:^cablro
b»TX«lciq fi '/iuoIXw "J.V '^*fjX /s4.i -^d, feefls i Itf«:t r a »rf
«10 B^iisflXfi-^isf .33jjiiwJ!.a >iXXiAi»x r-iaiyAioXo '£*^f£it^xtw sisv xJHoasiitae*
If, ioeeas': - 0 gixibjiQ^oiQbfliJ ^ualaililira bsai
eto»t »»e yjdiJieiJ brer , »Ofi»iaix© »ift ^o »sft»J^w>Ml
♦ beJoe-seitf rioixlw «t aio^
#i;ot<^i>- orXi> ^^ Test* aROibftaoPiq; xiojast , < ' '•'*'*
»tf ietit iaim ^tuo- tiov9w«ff ,»t>fl«>biv» t>»x*T'5oai:b ■\U»«n ^
—9m
had t« authorize the filing of the petition or hill. There li
tlms Tested im the oourt a discretion to d^t ermine whether the
newly disoorered eridenee is oompetent» xhether it is merely
oumulatiTo, and whether it is likely to change the ^e^3U^t of the
proceeding f and when the petition la presented the court coneiders
its statements r the affldarits supporting it, and the record in the
original casot aad then upon looking at the ^hole case the court
will exerciee a sound Judicial discretion In determining whether er
not the newly disoorered eridenoe aifforda a "basis for reviewing
the judgment or deeree, and unless such discretion has heen abused
the deoieion Twill not l>e disturlied. (Blaas ▼, Blzaa, 183 111. 132.)
In the Instant proceeding hoth the prohate and circuil courts un-
douhtedly conesidered the douhtful competency of Sexton's letter^
the oiroumstancea undar which it was written, the relationship of
the parties and the prohative Talae of the statements therein oon-
tainedf and also the absence in the lettex- press copy and Hx,
McCullooh'e afa^idarit of convincing evidence that the purported
releases of claimants lo Mrs* Or imp Bridge had erer been oxeouted.
The authorities are clear that the ne./ly discovered evidence must
he of auoh character t^hat a different; result would take place If
it were hefere the court on the original hearing (Blzas v. }iilaaB»
183 111* 1321 Watarawai v . Hallt 29© Hi. 75| Hes&or Johaeon llfg»
Co. V. Alfred Johnson State Co.> 266 Ill# App. 130 )f and we think
that neither the Sexten letter nor the letter press copy of releaeey
even if they should he admitted In evidenee, would "be of such ooa^
elusive cmd deolsive character as to bring about a different result*
The issue raised by the Sexton letter is rebutted by test^imony already
in evidenosf and the letter pres;.? copy together with Mr. McCullooh'e
preferred evidence woald at most merely shew that i^r. MoCullooh «ae
at the time satisfied that his desorlption of the assignment contained
'-r> 'irj:i^u.ii gKirrtui'Tc- 3h rrl r.oi^9^t>oib LalGStoJi tamos a »ajtn«s» lltm
,.ri
ft^^is^L c^ae^ -..ucii^j^aiiiiioc XjjlJefixf ' ' ^ 'i..:;* vnoo \,i;.r. josto:
^o qxifanoiiJals.- < ' lisixiw; giwliiia ssoKotfsaajo'iio erf;.'
•%'!M aofciyiou 'x^v , . , , , . itiarie;>.sV/ .': . .eX
^'ir'i T-rr btrr. tiCZL .crn ' .1X1 0?5. . . ■ it^A i-r .,r: . ,.,,_,_ . y ^yp
»'- • . :-jn -•- CfC'.I it; ■'■.{(iici:: J «;;;.;
• #Xi/tt^^
•*' • -i ' -.'fry '"'a V';' oQ'1'7-:' IQi^i
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in the release was correct « ¥ut it coxald not change ihe result
or tue hee.ring without teatlniony that claimanta in fact executed
the aaai/j/xraent or had kno7?ledge of the trust agreement. This
apparently Mr. MoCulloch was unahle to prove, and no other eyidenoe
is suggested for eetalsllshing that eHBcntial fact#
In their reply brief executor's counsel argue that Sexton'g
letter to Smith, containing a report upon partnership matters and
also upon th« liability to ?=rr8. Criap Bridge, contained meaoranda
Bi3.de in the ordinary courae of 'businsss and constituted admissions
against interes^t, and that the letter would be admissible upon that
ground. Holding as we do that the letter ie too rague and unsat-
isfactory to af 'ord any competent basis upon which the claim should
be revie^Jfdd , wg d^cm it ^lnnecessa^y to further extend this opinion
by a consideration of the legal ground upon which the letter is
sought to be introv]uceU
Ths only other oontroTsrted question bet-^een the parties
is whether the probate court had jurisdiction to review the allow-
ance of the claim upon the petitions presented. In view of our
conclusions as to the merit:? of the petitions^ it miIII be unnecessary
to consider the juriEidictionpJ, question*
We are of the opinion that nelthsr the probate nor circuit
courts abused their discretion in refusing to allow the executor ts
file the petit ions» an?? the judgment of the circuit oourt is there-
fore af-°ixmsd •
AFFIBJfSj,
Soanlan, P. J., snd Sullivan, J., concur*
-01-
so/ I • •"*
Bi TSJ^e.'. "J
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tTi58ai:V-^:.iUi td j.^.
4iuonoj ,. , ,, , , •ItLBtAi
38405
MARIS COHBOY,
Appellee*
▼ •
HRS* HAKBY J. BsSHJSf,
Appellant .
T^
f,^^'^^^'^
APPEAL 1?F:0M SUPERIOR COURT,
COOK COUNTY.
28 5I.A.
O
94
t.
MR, JU3TIC3 FRIJSD D3LIVJ3RED THS OPlLilOH OP THS COURX.
Plaintiff sued to reoorer damages for personal injuries
sustained by her while riding as a passenger in defendant's auto-
mobile in Hew York city. Trial was had by jury, resulting in a
Terdict and judgment for #4,000, from which defendant appeals. A
special interrogatory was submitted to the jury inquiring whether
defendant was driving her automobile at the time and place in
question in such manner as to constitute a willful, wanton and
malicious disregard for plaintiff's safety, and the jury answered
the interrogatory, "Yes," and returned same with their general
rerdlot.
The essential facts disclose tlmt plaintiff was employed
as a maid in defendant's household and had temporarily accompanied
her to Few York city. While there, on August 14, 1932, after plain-
tiff had completed her duties for the day> defendant invited her t«
go shopping. Later they drove throuch Central Park and ultimately
arrived at a restaurant at 60th street and Lexington avenue, at
about ten p« m» Plaintiff ordered a sand'Aioh and coffee, and
defendant took whisky» Shortly after their arrival some of defend-
ant's friends came into the restaurant. Defendant asked plaintiff
to wait for her, and accompanied her friends to the rear of the
restaurant where she remained until about one ft*m« She thea
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soiree
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returned to plaintiff's table* and they left the restaurant to
return home* Defendant drove the car and plaintiff was seated
in the rear. As they approached Third avenue, plaintiff noticed
that defendant was driving carelessly, she thought, and faster
than she should, and requested her to drive slower. Defendant
replied, "donU worry, Everything is allright," According to
plaintiff's testimony defendant continued to drive carelessly and
plaintiff esked her to stop the oar bo that she might get out, but
defendant refused. The ear was then proceeding at the rate of 42
miles an hour* Shortly after this conversation the car swerved to
the left and ran into an elevated structure. Plaintiff was rendered
unconscious and driven to the KLower Hospital in a taxicab. She
remained there from August 14th to August 27thf and then returned
to Chicago with defendant.
Plaintiff submitted her ease by first taking the stand in
her own behalf and testifying to the events leading up to the accident.
On cross-examination defendant»s counsel interrogated her about a
written statement given to one Paul Menges, dated November 3, 1932,
by which defendant sought to impeach plaintiff's testimony as to
the manner in which the accident occurredi touching principally upon
the question of the willful and wanton manner in v/hich defendant was
charged with having driven the ear when the accident ocotirred. Cer-
tain portions of the statement pertaining to the injuries sustained
*y plaintiff are as follows*
"When the car struck I was knocked unconscious. The rear
vxew mirror broke and that hit me over the nose and right eye. I
did not regain consciousness until I was about half way to the
hospital. I remained in the hospital for two weeks. I was under
the Doctor's care until I left Hew York about September 13th. Since
I have been back here I have had Ikt. Gustaf son, a woman doctor.
* * * The doctor says it is necessary that I have an operation
very quickly to avoid my lower eyelid from drooping down and to
save the eye. There was some infection and this drained out
through the right eye. There is still a little draining. The
JDoctor also said there might have to be some skin grafted there.
There was some of the eylid torn or cut out at the time I was hurt.
1 have a little obstruction in my nose on the right side."
bBiiiii>» aas7 tziini&lq, baa i£>a sxtJ svo^b onsbnslsCI ^Biuod. atu^iox
tc«*a£5 bxiB ,iil8«arf^ eria ,\;Xaa9X9ijao giiivl^b says injsbnal^b ;JxxiJ
Oi axil£>TtO'jo-H ".dila-t'iXIiJ ei anM^\;ii9y=^ t^i-x' ' jfesiXqei
baa -^3asX9««i «rl'. ijiix^Jnoo Jfiafewe'iab -^^aoffii^aa* a'lliiniaXq
iutS fiuo oiVi xia ^.^d. ■> - - ^ r©ii bsjfwis I'lxiaisXq;
.nJtbeeooiq aajiff Si^w i^io sriT «b»ajurl3i Jnabnalsfo
oi beviav/a '£»5 eMf* nol^sattsTnoo sxili -mils. x;X*ic©jtei . :^wofi n» aeXia
feeY8bn97 aaw 1ttx;tn4MX'^. •siud'oifxi^o bs^svaXo ft!' oJ\aii fi-at fens ^tsX exit
■ nr «:ivA-/
•# a-r. •v/ioffliJr J-aljaXfi xioseqia- rioJriw ^cf
•0qtf -^tlXfiqlonxiti sniiiouoJ (bditwooo .'^^ebiooB oxii rioxriw ni ^©nofin sifs^
•«ir *n«bn»lftb AolAfj at -tamtjam no^naw bftR lutillw edi Ho eioiJaawp ©rfrf
•1»»0 .boT:tiToo« ;»«»bxrjioja axicJ n<»xiw 'i dJiw besxado
jewoXiot C<f
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Bridle GilBiore was next called as a vitnees on behalf of
plaintiff* She stated that she had naen plaintiff on June 8y ld32«
prior to the accident* and was about to testify ae to plaintiff's
|»hysieal condition at the time v^hen the following ensued!
*{i« And what was the physioal condition of her face at
thFit time?
Ifr* Keogh (Counsel for defendant)! Judge* v?e can shorten
this. I do not question the injury* I mean* if this is to show
she was all right before she v»ent to Haw York*
Mr* Johnson (Counsel for plaintiff )i Yes*
The Courts All right, Miss Crilniore, we will excuse you.
There is no question about the injury?
Er. Keogh: Ho» there is not* Judge."
Neither Dr. Gustafson* who had attended plaintiff after her
return to Chicago* nor the physicians who attended her in Hew York*
were called as witnesses and no medical testimony was offered to
prore the nature and extent of the injuries sustained* At the
conclusion of iliss Gilmore*s evidence plaintiff rested* Defendant's
motion for a peremptory instruction was overruled * and Paul Men^oo
was thereupon called as the sole witness for defendant* His teetl*
aM>ny related to the manner in which the foregoing statement was pro-
cured from plaintiff, and was offered solely for purposes of im-
peachment*
Prior to the hearing defendant had made a motion for a oon»
tinuance on the grotmd that defendant was absent in Hew York. It
was an oral motion, and no satisfactory explanation was made for
defendant's absence. Counsel urges the court's refusal to grant
a eontinuanoe as grotind for reversal* However, since the Civil
Practice act requires that such motions be supported by the affi-
davit of the party so applying or his authorized agant (111* State
Bar itat.* 1935, chap* llOj par* 237* rule 14, p# 2453), and no
such affidavit was presented, we think the court was justified im
Its discretion in overruling the motion. Before resting her oaoo»
defendant's counsel offered evidence to explain his client's
absence from the trial, and the court permitted him, with the com-
lo \I«xf»rf fl© f^a«niin Llm *x©ft naff enoBttiT) siblia
fttl-iiiBiAXq 04 RT. -^jliJ-es^t oi ;teorfjp srv fens tJcrsbiaca sii? o* ^ottcj
%-ilzoY wsH o5 XIs a.««- jirfa
• tfOX ««U03t9 XIxw s« «eto (. i XA t *-iifoS ©iS'I
•i'-^xi^inx tiiJ curod^; it' ' , Off a.r Jiis^nl
oJ ' T'^'>1o .'.rvf • f ;0!!ii ^ '- ;: Xr.oJfbctt on brr.3 n©Br?3K5>iw a« &dXX&o ©X»w
~ .: .viflabnoleb tot aaonui- ' '- "^ -^.^■Js•£&Iii e^-iw
8;>/;:^c. ♦XXt) irm-/?y^ hftsk'totiiun ahi it iwni '^C^'iB^ otio' vife
' ?l: -:,:..
-BOO •ili ^-"i-' «--^'^ '-J 7 ;.;;•»
-4-
eent of plaintiff's counsely to have the record shoUt without
any explanation for her p.Tasence, chat defendant was absent fro»
the city and not arailable ae a v/itness. Defendant then Intro-
duced in eTldeno« plaintiff* s sttitemeat obtained by Menges, and
rested her case*
The court thereupon iniUired whether there waa "anything
else»" and the following ensued t
"Mr. Johnson I That is all with the one exception that
I would like to show the plaintiff to the jury so they viiould have
an opi)ortunit.7 to observe the e:ctent of her injury.
Mx. Keogh: Well, your Honor* I don* t know about that.
Hare is a oase vnithout any msdical testimony vvhatever. I admit
she was injured, vliat kind of an injury it is '^e don* t know;
whether it is curable or not curable. I object to ah wing her to
the jury.
The Court: I am willing that the plaintl:'f may step up
and stand before the jury and the jury may look at her. To that
extent, without any further explanationt that raay "be done.
Mr. Johnson: Tea.
lir* Keoghi You will allow my objection to her showing
it?
The Court: Very wslli the objection will be overruled.
(The plaintiff thereupon stepped before the jury box.)
The Court X I would also like her to tell what, if any,
isipairment of vision she has. All right.
lit. Johnson: Shat is enough. Miss Gonroy*"
As grounds for reversal it ia urged (l) that the verdict
was grossly excessive and was arrived at by speculation and not "bj
testimony produced at the trial; and (2) that the court erred in
allowing plaintiff to display her injuries to the jury. In support
of the first contention it is earnestly argued that the record eon-
tains no evidence ox any pain suffered by plaintiff, that no nedioal
testimony was offered on her behalf to show that she suffered pain
or that any pain '^ould necessarily result from the nature of her
injuries, and that no reasonable inference can be drawn from the
testimony that any serious injury resulted from ths accident. It is
pointed out as significant that at the close of the evidence offered
by plaintiff the court addressed the following inquiry to her counsel i
*'The Court: Mr. Johnson, may I in^^uirs what was the injury?
Mr. Johnson: It is an eye injury, your Honor, Her eye was
injured*
The Court: All right,"
■ > - ...- J ■ > -J », - '■' s.
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In inatrueting the jury the court carefully defined will-
fulness and wantonneee and differentiated the same from ordinary
negligence* but failed to include any instruction on the theory of
exemplary cr Yindiotive damages, v/e must aeuunef therefore* that
the Terdict of t'4,000 represents coapeasatory damages. In vie.; of
the fact that the evidence relating to plaintiff's injuries is
extremely scant* and is limited to the statements made by her to
Mengee, unsupported by medical or other evidence* v;e think the
▼erdict 1b excesBivo. Plaintiff's counsel argues that pain must
have accompanied the Injuries* l3ut the record ia silent on the sub-
ject. The extent of plaintiff's injuries is left entirely to
specvilation and conjecture. There is nothing to indicate whether
the eye Injury was of a permanent nature, and no evidence of the
nature of the operation which plaintiff stated Dr. Gustafson advised
her to undergo. It is argued that plaintiff •'is scarred for life,"
but there is no evidence in the record to justify the conclusion
that the injury would produce a permanent scar. The cause wa»
loosely tried. As heretofore stated no medical testimony whatever
was presented to the jury from ?/hich ifc could ascertain with ajoj
degree of^def initeness the seriousness or extent of plaintiff's
injuries* and after a careful examination of the record v/e are
impelled to concur with defendant's contention that the verdict wao
reached by speculation end conjecture. To suntain a vsrdlct of
$4,000* v?hich under the charge of the jury must be held to hare been
based on compensatory damages alone, it should appear that plaintiff
received Injuries of a serious and permanent nature or that she
suffered pain, loss of employment or ^as threatened ^vith some per-
manent inpi^irment. There is nothing in the record to so indict t«.
Under the clreumstanees we think the case should be retried so as
to afford plaintiff an opportunity of presenting evidence, if sho
ean* from which another jury may ascertain the nature and extent of
her injuries and assess daciages accordingly.
-.«-
0^ tad '\ctf 9£)sct 3^£(3Jite^.';;i
^siUB iiiflii i.-Bdi ji*.^isp,tB l&ami
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3 in^ixB JMw •Yud.
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^atmrninauorko Ml* i=«biitr
-6-
Durlng the pendency of thie poceedtng plaintiff moved
to strike from the files an additional abstract of record filed
by defendant. Prior thereto defendaait had obtained leav<; to
file tha additional abstract. Uotice of that motion woe earred
upon plaintiff's &ttoraey3| in accordance rvith the rules, but
no suggestion or count ersuggestions were filed in opposition to
the motion. Kelylng upon th^ order of this court granting leare t«
file the additional abstract, defendant caused copies of same to bC
printed and filed 'Vith the olerk of this court, nince no object lom
wae interposed by plaintiff to the motion for lea.ve to file, and
defendant had bean put to the expense of preparing the additional
abstract, we think the motion to strike comes too late, and it is
therefore denied.
For the reasons st£.ted the Judgment of the superior court
is reversed and the cause remanded for a nev; trial.
JirOGMSFI EBTEFSm) ASD CAUS.S KSMAjrOBO).
S«aalan, P* J., and aulllTan^ J., concuro
«;: .; V"i\C'' { . ^
38497
SOm nHH^ITTTA and
/vppollees ,
Sberlff of Cook County*
Appellant,
j APPKAL 1^;0M CIPCUIT CODRT,
COOK COUHTY.
28 5I.A. 5 94
MR, JiniTICiJ imisSHB Dl(!I.IYiiBJ32> THB OPIfflOH OF IKE COUEvr,
imiifeffi :o, Meyer Ing, aa sheriff of Cook county, appeals
fron a judgment for llfOOO ana eosts rendered against hla la thm
oiroult court, baee^ upon damages xesultlng from a levy siade on
personal pxos@^^y 'belonging to plaintiffs, judgment deb tore*
Plaintiffs deolaratlon oltargeti trespass and arore that
the ah<:?riff , on April 15, 1933 f unlawfully took and seised certain
goods an^ oHattels of plaintiffs ^ieh vfere exeapt froa exeeutlont
also that the sheriff took and seized certain oli^ttels and con-
verted the» to his own use, and with force eLtui aras took possession
of thd meat asrket of plaintiff » disp^asoesttd hia, looked the doors
of his store, took the keys and refused to permit plaintiff to ooa-
tlnua to earry on his business on the premises or to enter saao*
TJpoB the hearing jlorenoe Ohrenka, plaintiff's wife, was aade an
additioa«a, plaintiff, but the declaration was not amended. liefendant
interposed a plea ef the general issue and pleaded specially to the
first count that the goods and ohattols wore seised under and by
Tirtue of a certain execution against the plalatiff and were not
•zempty and that the goods were returned to the plaintiff ipril 18,
IQZ'S, upon his filing a schedule olaisang exemption and making a
T«*8C
-coQ baa al6^;t^o Ai«iJidu ^G&l9s i>i!» slooi ttiicif^^ 9Ai i&Ai oaX«
-i:or )alBXt/ ^lonaq •* baatrtei biia a^*'* «r^^* '^•♦^ ^aio^^e aid !•
• ■' -Q oaelnoiq 9J(^ no «a«rti«»o( &bi no x^tm<> oJ aunil
«» 9t«ir 8«v ,0tlw a*lti^lil/tXq[ t^R^'s^O aofta'xgX^ ^^al^jseii »ii:i ixoq7
tffAlarataC tb•^ff«■s ^cw esr Aol^Mrtaioe^ 9ai iud «lH3niaXq Xt&fleidi&lui
aiU •# ^X^ldacia babaaXq br/n t^i^rauJ; lA^mi9^^ 'BsLi \b a*lq, » fimaoHixa^iU
ygt teA t»inr basi*:: &'z»w uXa^^^xlo &Bja ai>aa« i»ii;^ $.'U^< inuwi dsxil
#<M rz*w ham tJkiaiAlfi mdi tauim^A aoUis^ajM nt^itc'j m 'to aui^ir
• &X Xiiq )ti^ni«Xq adi 09 httoxuda-i artai* «5a4»8 !»iit^ ijsiii i>rt« tiqatax^^
m Ti^liLm fatui ool;tq«»JiC ^alMxaXa aXtrt>*^o« s uiiXJtl a^c uaqiis <£f.9.L
tender of re&l estate. Ab to the third count, the plea ayerroA
that pled.Btlff TOluntarily surrendered and abandoned posseeelon
pt the etore*
The eseential facts diaolose that in January, 1933, one
yrank Bioar recorered judgment against plaintiffs in the municipal
court for |723 and costs* Execution issued thereon and was
deliver ed to the sheriff, who, on April 15, 1933, made demand under
the execution and on the same day leried on plaintiffs* goods and
chattels, consisting of certain meets and equipment contained in
plaintiff's meat market in Cicero* The customary notice was posted
on plaintiffs* store window, inventory was taken and the property
was advertised for sale*
April 18, 1933, three days after the levy, plaintiff John
Chrenka presented his debtor's schedule claiming ownership of part
of the goods and chattels levied upon, and on the same day tendered
in writing certain real estate subject to levy, whioh, however, TuJL
been levied upon under a prior judgment as well as the judgment
herein, and released, presumably, because of the prior levy* On
the sans day the sheriff also released the levy. There is a oon-
fliot in the evidence as to whether the aheriff returned the goods
and chattels to plaintiffs on April 13, 1933, when the schedule was
filed, or whether he retained same until the following Monday,
April 24th«
John Chrenka testified that when the levy was made on
April 15th the deputy sheriff closed the store and "pushed me out
of the back door smd sent us home;" that thereafter notice of
sheriff's sale was posted on the door, listing various goods cuid
chattels levied upon} that he filed a debtor's schedule, dated
April 17th, signed and svorn to by him, claiming certain exemptions,
including the soalosy a meat grinder, one slicing maciaine and an
-s-
Xa^Joinaui wi* ni niliiaisilq ^aniisg* (tnocrsbut boiCTOosi TtAOiS Siust?
te» si>ooB 'snivel bIo[ no bdiTSl "^b doteia »sii mo i)ae isol j'ijodz 9 eift
ax b^al&iaoo iii^aBitU;?» iyns Qi.*i»a ttinir^o lo Ti»li^^inat)o ialeUt^^
fte*aoq saw soi*OH '^xeaio^aifo siiT .oiaoiO ni SsjttAm *s*?a a ♦lli^JfrlaXcr
X^i««Iottq prf* ^»H« naat^jf saw -^to^aevni t'srofeatv? «-i©*9 'gtli^fiiaiq fiO
nrioT, ItxjflijsXo, fTtsrsX srW te*'^3 a\;.eb asxi^* »£gtX «&X Xitq-
i'jji;; -o qilJi9%»ti»9 ^txiiat^lo ©Xwfoeifaa s »:£o;r«f*fe alil beiafumitq a%n»iuiO
ttad «T97»woC[ ,r(o£iiw t'^TsX o^ io&l^ua »*«i»ta X**&*i: ff/«*t©o ?^i'.'- -'■
li^ecqim/t »^^ Bit XX»w aa iaoa^ltfui, 'foi'sii a ivftctv a«<¥if b^iva. ;^ -ot
MV oX«f>&iioB aiij tt«ittr ,£S&X tt>X Xi/KiA iko attitffitaXq ©# ?sX»*^.axio fc««
t^nbaoK SB-twoXXol axlit Xx^m; aftAs toafri^id's: •A zf^Aisdw %& ,ftaXlt
• liil^s; Xt««4
flo •£«« aAir XV9X 9Ji3 ai»dw imdi b^i'Xlifi^i a^mtAO asiol
$U9 MK b»i 1 3 Q%^ia «ii £>»«oX0 1^ii£iie ^j^tfji^ft srfi ilijfSX XllS?*
i.*on it^^^idifttfi iab.i "ionoii ajv tJa«s fat*, 'meb aCaao 9jltf 1#
hop sbeos suoJtiav ^ti&kl ^-fcb sdi no fjetistxi hbw »Xjia a "kT^i"X9ifii
mm baa •akdoBu 5k«lolXa aco ,-r©faftlts *••« s (a«XiEio« «t^4 ^ixJr&irXoiU;
-3-
electric refrigerator and Tarious other tool* and aooaBsoriot
incidsntul to the neat buBlneas. He further testified that the
iee "box contained oertain fresh meats which had been plaoed there
on Saturday» April 15th, the date of the lery; that the deputy-
sheriff placed a custodian in charge who refused plaintiffs access
to the ioe box except for inspection purposes and told hia that
he could not sell or reaove the aeata contained therein* There
were two keys to the premises » one of whidki was delivered to ths
custodian in charge of the premises and the other apparently re-
mained in the possession of the plaintiff John Chrenka* The sheriff
instructed the custodian* in Chrenka*a presenee^ that plaintiffs
might enter the premises and look after the meats in the ioe hoxy
but that they were not to remove same* Chrenka testified that hm
returned to the store on Monday* April 17th» and again on the follow-
ing Wednesday* to look at the meats, which remained in the refrig-
erator for ten days and eventually spoiled so that they could not be
sold or used* He testified that the reasonable market value of the
provisions contained in the ice box was approximately 4lS&» and to
the average sales of his businec^s duving January, February and Marohy
1953, which were estimated at approximately #350 a week during that
period, on which he claimed a profit of 20^^ to 25^4* Upon these
faets the Jury assessed his damages at |1,0(}0» and judgment was
entered on the verdiot*
It is conceded that the sheriff may levy upon personal
property immediately upon demand, and is net required to wait
until the expiration of ten days after the debtor is notified of
the execution. (Lenzi v. Zimmer, 210 111* App. 260.) It is
urged, however, that plaintiff claimed his exemption and tendered
real estate to the sheriff out of which the judgment might be satis-
fied, but that notwithstanding these facte the sheriff remained in
«l£^ Hf^i i«»llidoe^ ^sdiViil oK .oRsfiiax/d i®ci9 erf* otf X«}4(isai||||^
©TSiii bee-'slq; twad &Bri iloiri?^ B*«©Br ifeST^ r.tBir»o b»at.is£uop zoiT Wftl
i&tii teiif bloi bus assoqiiiq aoi*©oq3fii «j^ tfqe^jea Kfitf ^1 aifi ©J
M[y ©r i9t©TtX9i> BM'rr xfoirfwr l© »flo ^ B&& imsi'Xfi ^ii^ Ov e^fiai cw* 9ttm
,xocf 30i: exlv' ni s^sem exia te&ts Tioel baa a^^ia^m, grili x&*ii» ;^daJ6;a
«^ ^^rt;; t)3t'^i:t5at ^irfnairlC 4ap;0B ^YOiaef o:J ciun v>^9w x^^ ^'^^ ^9^
-"■•'■*•-■ ■ N-rJ- ,\;Ab««nb»W i«i
• . ');' Vl:c' -.;;?,-, '-y., su- v-.v tui - -i^-wj il»rf ' "'' "-*i'»'f©
3X1; lo 80X':v 35-:iv..u jj.a.ai:OC r;: r ';.<■;,.- jBf£^ Ii^ili";??^!;. S sM 4'-:: iO ^Xos
oi bfiB ,a8X^ ifXa^BtalJ^oiqqis qs» x&cT ^ol edcf ni fesaijiiJuo o anoialvotq
•asffit ne^ •'tSf^ oj ViS 1:o *i^o-x<i « h»HiaXs sii lieiilw no ,feoi"ieq
tlsv 0^ £>dtJbvp6i: ^OCK al bite « l>flAK»l> ccoqtf \;Xa;^£)tbdai»i %it9^m^
to hi> titiiots. r.x lOi^tfoh qjH .xnh net 10 nei;^A>siq3!.9 ȣi lliXUf
8l i.: {•OdS .q^. .XXI OX1S «,X'i»flMgi.'ii >T i^fm^) *rwlisj9oxM suit
-aiiffia •4F .^iliis ^ncwaafewt tali xl^lriw lo JWo "..liife^a e-rfd o.. o:t.»;t.:r» Xatt
-4-
poABABsion for some ten (?ayg s,f tor the claim xor exemption waa
Eiadc. It appeare froiE the record, hoverer, i.h&t Ciixenka* s olaln
for exeoiption was not loade until April iath» and tliat h* receirsd
the goods and ohcttels back on April 24th.. The real oontrorersy
Ijetween the parties is whether or not the sheriff wrongfully
retained the goodr fdr an unrsasonaljle period of time after
Ohrenka made his claim for oxemptionf and this question was eub-
mitted to the jury b» one of th<3 oentroverted istsuee of fact*
iUu>ng th<% grounds for reTersetl it ie urged that the
court* s instruotiona vrere erroneous aM that the yerdiet and judg-
ment are exeeeEire* 'i?ith refersnee to the first contention* we
find that the court, in the third instruction, charged the ivaj
as follows I
"If you find from the ©Tidenee in this ease that the
sheriff of Cook County wrongfully leried upon the plaintiffs'
property, and that isaid property was exempt from execution,
then and in such case the defendant is liable to the plaintiffs
f or auoh, jdajna^es j; as are shewn hy the eyldenee, if any, to hare h»en
suatained 1»y the plaintiffs*" ~'
This ia&struotion seems to he predicated upon the theery that the
levy <.ms unlawful, and the jury were told in effect that if the
property leried upon iwas exempt f rom e xecut ioa that the lery was
v.rop.gfully made. This seems to hare heen the theory upon which
plaintiffs tried their ease, as shown hy the first point urged
hy defendant in his hrief . It is there argued that the sheriff
may lery upon personal property inmiediateXy upon demand, auid that
he is not required to wait until the expiration of tea days after
the dehtor is notified of the execution, and cases are cited to
support this position. (Lena! ▼. '.immer , supra, and :^e8kalniei
T. Hasteraan, 288 111* 199.) Plaintiffs now concede this rule
•f lav to he oorreet, hut evidently on the hearing their counsel
took enother ri&a and m&de the eoatention that the sheriff eould
not lery without first waiting tmtil the tea days had expired
wlthia which the dehtoza might file their schediae for •xemptienst.
^•T<»cft'x «fi -i-i^t i>Jiui fSCibX IxaqA li-^^iiu €>b£{i( ^^ji %«fr nQj;;^c£n^8x» -x«l
tiI«^«oas liiioitfa ^ii«; ooxi "io ciSirr- 'loi^xaq $4* ii»eiir;l»<EJ
e^.iJ*nJtfc- . il si ;Jr
a. *ostt9 ni bins : cxrt »ri* br:
b»a'r^ taiocL ^ati'l ail* x^ n«cr < i •jxI;^ E^ItI altlinl^Xq
"iliTsiIa eifJ ierf* b9«r»ijc st^rC:^ .leirtf aid el *xj»bn«l©& "^tf
•Xwt •W* dbeoKfto won altiitixlnia; f.^sfj , ss «asflL12*mS •^
JiiiwWi Tl^Mt ;|nJ:T««d[ s»rf«r no xXdr..- '•^o'^ -'*' --• ' »'-•/ ^^^
At any rate, the Instruction Is mlisleadinf? and iaproperly states
the rule of l£s.w applicable and erldently permitted the jury to
find that the levy, which is shown by the evidence to hare been
lawfully made and now conceded by plaintiffs to hare been »o,
to be unlawful*
Inaemueh as the cause Kill hare to be retried* ^e deea
it unnecessary to indulge in any detailed discussion relative to
the question of daaiRges, W« are satisfied* however* that the ver-
dict was excessive. According to plaintiffs* own admissions*
the meats claimed to have been spoiled* as ahoim by the inventory
compiled by the deputy sheriff in the presence of John Chrenka,
and admitted by the latter to be correct * the total meats on hand;
including sausage* bacon and lard* was 147^ pounds* which at the
average value of twenty cents a pound* testified to by Chrenka,
made a total damage of t29.50, or placing the weight of the m«ats
at 155 pounds, as stated by plaintiff Chrenka, the total value
of the meats spoiled at an average vauLue of twenty eents a pound,
amounted to #31. It is admitted by plaintiffs that all the items
of personal property levied upon were returned to then, and it la
difficult, to justify the verdict of the jury and judgment of the
court in the amount of $1*000*
7ho only other major point advanced by defendant to reverso
the judgment is that the following remarks made in the closing argu-
ment of plaintiffs* counsel were improper and prejudicial:
"Mr. Kabaker: And this plaintiff (meaning Ricar) guaranteed
to the ?:heriff* »If you* the Sheriff ^ are held liable for any
damage by reason of the levy you made * * *, we, the plaintiff b>
will indemnify you, the r.heriff* against loss*' Let him indemnify
the iJhariff against loss. He has indemnity up v;ith the Sheriff
against anj such thin^ as this*
Mr. Ifeson (defense counsel); I object to that*
The Court J Overruled*
Kr. Kabaker (continuing): Here is an agreement to indemnify
the ^:herlff . Now let thsr. indemnify the Sheriff. I say the Sheriff
took a chance on this levy; upon damaging this man. Sut he said*
♦ fhat difference does it make to ma? I have the guaranty of tha
plaintiff, so all I do if I get stuck, the plaintiff will take oara
Of ma. * * *• Whatever you find against the Sheriff the plaintiff
«i 9rti*l9i iS3iaaji3Bib J!>i-i.ii;i^r; -ens ui ^^^xa.': '
t luiBCf no ziasm Jjb*- t Jj'oe'inot) st' sr:j %€ hBiilmba ba»
Bi'i cA Avldvi ,3Jbitwoq iXP^l asm «Lt»I bps noaircf ,9§3ax/aa sfii ^i^Xea^
tbav^fi « s;^/i«»..' "'^Xieija atfr.aa ail* t«
•axs-rrt o* i7 ; \€ boofLCTfea Jnloq tot^Ei i^Aic yX«^ •rf'
-if^r;T ?!iTJeoIo 9At al -.v.r ?-' -.i-.m^ .rx,..tij;:f; >rf.' ;t/5firf al *n©fil»fexrt erf*
If 9 i lift
di Gi
-6-
(in execution) will iiavc to g&y bsclc to the Sheriff. ;:o you
needn't worry that you are hooking the Sheriff that obtained
posaeasion. It isn't the concern of the .:heriff, out of the
man who Bade the levy in the flret inetanoe.
Mr* icRBont I object to that CiTguiaent*
The Court: Orerruled."
Plalntiffe* counsel seeks to justify this line ef arguaent because of
the indemnity contained la exhibit 7-Cf which con8ist<3d of a
letter to the sheriff requesting the appointment of one Batista
as custodian of the property in question. This exhibit was
admitted in eyidenoe by agreanent of counsel. Hotwithatanding
the admission of the exhibit by agreement » we regard that line
of arguaent improper and misleading to the jury. It presented
to them an issue ^»hich was irrelevant and immaterial to a proper
deoision of the cause. As was eald ia the case of City of Chicago
'■• -^rlglit & Lawther Oil & Lead Co.« 14 111. App« 119, at p, 125 1
"Whether the city wb,b Indemnified or not was wholly
Immaterial, either ao to the plaintiff's cautje of action or to
the amount of damages to which It was entitled. To argue to
the jury that the city was indecmified by the railroad oompany,
so that whaterer daaoagag they should award would not come out
of the taxpayers, but would hare to be paid by the railroad
company^ * * * ^ae an improper consideration. Its Inerltable
tendency was to make them (to say the least) less olroumspeot
ia OBtim^ting the actual loss occasioned by the Injury coaiplalned
of, * * * the jury could not forget when considering of their
Terdict that it was the railroad company and not the city that
■was to j>ay the dajtiMgesj and it is a reasonable inference that
this consideration had its influence in their deliberations*'*
I'or the reasons indicated, the judgment of the circuit
court should be reversed and the catise remanded for a now trial,
and it Is so ordered.
R3ITERSED MTD BiCllAMieiD.
Soanlan, P. J., and oulllTan, J., concur*
no
alii lo ;J;
MAi Heels'" - -~' . ""
tail
->1 i.0 Iffi^ ^0 aa.-.
>-y .-ids I»any«o *atl:i;^Kij?X'^
' -'--■^ .nig; 9^:^ . fi«iajJO ««
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TOjJarffjB.! A isi^lt'i'! ,7
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oa
( '. J. -''V,V;'i.= --:>iW '--Mi J to
• / ^ -ni
■■>■ ■ ■- c: . : A - X
33469
HOBART BR0TH3RS COMPAIiy,
a corporation^
Defendant in irrort
T.
tOUIS G. TATTBR, JOHU DOS and
MAtiY DiM,
Plaintiffs in Error.
ERROR TO iiUiriCIPAl
COURT or cmc-^GO*
8 5li. 5 94^
VR, jusTicii: zkijUhd D.aLXV2;B:na) the opimoH of tks court.
Plaintiff "brought an action of replevin against Louie
9» Tatter* John Doe and Mary Roe to recoTer possession of eertain
personal property claimed to have been wrongfully taken and
detained by defendants. The cause was tried by the eourt and
a jury, resulting in a directed verdict and judgment for plain**
tiff at the close of all the evidence.
The affidavit for replevin alleged that plaintiff was
the owner and lavvfully entitled to the possession of one 300
ampere portable Arc Welder, with motor and aeceseoriesy valued
at |499*61i that defendants wrongfully took and 'tetained same
from plaintiff, and that the chattels were not taken for any
tax, assessment or fine levied by virtue of any law of this
State against plaintiff's property, nor seized under any execution
or attachment against plaintiff's goods.
Louis a. Tatter's affidavit of defense denied that ho
unlawfully and wrongfully took possession and detained the welder
described in the affidavit of replevin, and averred that ho had
purchased this machinery and paid for it and that in addition
thereto plaintiff owed him ♦468»10, whioh was claimed as his
esj^es
n^bn»1#t,'
■■QO
-v
f-
• I'iiaoo SET 10 HoiTii^o smT a£'ii^nriji:ci (Ufa as ^ oiTaL , .
cxBjaco V.o nolaaeasoq i&voo©a o^ »oH '%'^eM. baus 0»6. cutou |t»*4aT .€>
bn^ flsiuJ v,XIij48j«0*- >'■•'"'* oi &®fitJfcjaXo ■^;tii&^OT:q Xafioarreq
. ■:::?
MUM J)fcuXiJsfi- lifxj:: :-' a;'x^KC!£V; i;crriaai • ' •' •
XJxr. lo'i 05*31 .wi ;}on , UniaXq xa.oi't
• a be '
xsbXew ©ii« t»&i!J:ia*«ib jwte fici^aeeaorf j(«ed' ylXwl-wttoxw hnc Y.XXjirl:wi3XflU
.-::;..r.;^'.''
; t >"-J'^«
iHiBgS
si;rjB;r3
neajrfofi.^
-8-
set-off* It was further arerred that no demand was arer i&ade for
the chattels sought to be replevied i and that plaintiff was not
entitled to file suit in this State because it had not qualified
as a foreign corporation to do buslneBS or eell property in
Illinois*
It appears fro» the evidence that plaintiff y an Ohio oor-
poration» aold the mohinery in question to Tatter under a condi»
tional sales contract for the stipulated sura of $lf070« Tattor
paid |160 cash and agreed to pay the balance in monthly install**
Bonta of $70» ^ith 6^ interest* The last installment payment was
made in 17ov3mbsr» 1931* 'hen the affidavit for replevin was filed
in May> 1953 » Tatter was clearly in default » and under the terms of
the conditional sales contract plaintiff was entitled to possessioB
of the property*
After plaintiff had filed its replevin bond a deputy bailiff
of the municipal court seized the property and delivered it to
plaintiff » who took possession thereof* Prior thereto plaintiff
had contracted with the Morrison Railway Supply Corporatloni ChioagOf
to rent them an electric arc welder and had delivered such welder to
be used on a viaduct on which the Morrison concern was doing somo
eonstruetlon work in Chicago* The rented welder did not operate
properly, and plaintiff thereupon temporarily substituted the
replevied welder until the rented machinery could be replaced or
repaired. Tatter, learning that the replevied welder was being
used by the Morrison company, sei^ied the same and in connection with
the instant proceeding a petition was filed in the municipal court
for contempt proceedings against him by reason of this seizure*
The principal defense interposed by defendants, as appears
from their own brief y is as follows i
"Defendants' theory is that plaintiff, a foreign cor-
poration doing business in Illinois, cannot maintain this aetiom
ioti BHV All-'«i£lq iadi bos <:&eiT»Iqf*r etf oJ orisjuoa Bl©i..sxio »fl;r
ft«iilX.?j!jii ^ton b.off Ji sewsoocf a;^jBifa aJtii^ vii Hub qUI oi beliiin^
as ^Jtsaoicr Use ro aaensBud oh od itox;tr,:coqtoa ttgieiol: '.^ a«
-100 oirfC ns ,lli:JnXi>Iq ^fjxf- sof"^^-'-- '^f^ -^rf^ sso-Xa ._.....
,-„.)*„o ^rstf-.^r:- "rr- r.i,,r^^ h&istisq i:^-^ ■■■'■•^'' ■""■'■■ .-t'tn-r.-f rt<T-- •";•{;"'■! [''jnoiit
.vjiogoiq ©dJ to
0* Tftfcl»w xfowa ooigri.. jIgv/ oii3 oi-xJ'osIe ns;. cisriJ insi o*
csoe gcio^ a»v/ riTeonoo rtoexi3:oM sflit A'bx.ii'^ no 5oit?: bsaxj ©«f
•iaa^qo i'on f-ib i&bXevr bditnat oriT -o-;^f70ii'i nx i ,''0U7;t8H00
t»j(£i £)«*if;}x.*adue \,Xi'r£T:oqiK'^ KOq«©T©ili 'i'^iv^ttf.'rlrr bri9. ^x^iftqptfi
•to beo^iXqet etf fcXwoo Tciftfihrcrv.r ii-jn '" r.H:>i ■isivelqe't
:eiT0XX©l e« e." t ■ " li'XiJ ^iotI
•TOO r V •. 1 \;iot' "
-3-
wlthout complying with the foregoing statute; that plaintiff is
bound "by the admiBsione contained in its pleadings and cannot
deny that it ie a foreign corporation, and that it is doing
husinees in this state, and that it has failed to sho-w complianct
with said statute.**
It is conceded that plaintiff is a foreign corporation and that th9
authorities construing sec. 94, chap. 32, Oahill's 1931 Illinola
Rarlsed Statute, in effect at the time this suit was instituted,
hold that no foreign corporation doing husineas in this otata ^vithout
a license shall he permitted to maintain any suit at law or in equity
In any of the courts of this State arising out of either contract or
tort. To support their contention that plaintiff was "doing busi-
ness** in this Gtate, defendants rely on plaint iff *8 petition alleging
that it is an Ohio corporation, together v/ith two affidavits filed
In support thereof, "e have examined the petition and affidarits,
and find nothing therein to justify defendants* position. While It
is true that plaintiff instituted and was prosecuting a replevin
suit in this State, it has been held that the words "doing business,**
and "transacting business," as used in the statute regulating foreign
eorporations "have by numerous judicial decisions been glvea a settled
and recognized meaning, and refer only to the transaction of the
ordinary business in which the corporation is engaged, and do not in-
clude acta not constituting any part of its ordinary business, suoh
as instituting and prosecuting actions in courts.** ( Alpena Cement Oo»
▼ • Jenkins & Reynold sy 244 111. 3S4, viherein are cited numerous other
cases, including Spry Lumber Oo. v. Chappell, 184 111. 539 | Handel v.
Swan Land Co., 154 111, 177} ffaxon Co» v. Lovett Co.y 60 »• J. L* 12a|
13 Att. & JSng. Ency. of Law (2nd ed«} 869«}
It has also been held that a foreign corporation may solicit
business through agents in this Stats, where the contracts are con-
summated in the home state of the foreign corporation; that it may
maintain an office for that purpose, and that such transactions
,b»^0ii?eni- a«w Jii/e ai:ii« &m.li i.. . ^o©t5:® ui i©*«da4^g bsalrsfi
frf-iiri;* ui :jo r; ;it~ ftJt.~;?nJr- .';t.ha^sQ; sc' ..Claris epn^olL &
'.'■''' .- "- (aoi^aToq-cor.. ' .: taii:^
",8^- .fciow 9H* *aii^ feXeM £ie»tf aeil di «0*«*3 ai'ff;^ ni Has
9lii . Tlxi need enoiaioeb Xsirolbw^ BBoisuBjun T£d ®va«['' ««;oi;^sToq'3E©o
•^A ' " . fc«i l^^p,^.. fti. jy^o r^. f?.^. ?.ffi:^iioasQXg bag agi'^uJ-taggx ag
♦T _^_ . .X ^X^fc-^ ■ « .j ...Ki. ij;rt!^fc aclfeJjXog(i « seaso
ill •u. . . ._ . vSYoJ ••* j^oj,JjRr___, : .'TX .III /-eX j^.Q^^ bixfci>l fflfflP
will not const ltut» "doing buslneee* ■within this State. It was
said In Lehigh Portland Cement c;o« v. McLean, 245 111. 326, at
p. 3331
"It would he aanifestly lllogioal to hold that a foToign
oorporation engaged In interstate commerce was exempt from all
those provisions of the act imposing conditions upon the right
to do husiness in the Jtate, yet auoh corporation mitiht nerer-
thBless he penalized by denying it aooess to our state courts.
A penalty ought not to be irapooed upon foreign corporations for
a failure to comply with a statute that has no application to then*"
In American Art v<ork8 v. Chicago Picture Co», 184 111* App.
502 (affirmed 264 111. 610), plaintiff's principal office was locate*
in Ohio, where it manufactured sill its goods. It had an office for
the use of its salesmen in Chicago, hut the only business ever done
in Illinois was the solicitation of orders by its agents. The orders
obtained wera forwarded to its home office for acceptance or rejec-
tion. The collection of accounts was made in Ohio. The particular
transaction involred in that proceeding related to contracts solicited
by Chicago salesmen and transmitted to plaintiff's home office, and
there accepted. In discussing the question under consideration the
court said! (p. 503, 504)
"Prom a consideration of these facts we hare concluded
that plaintiff was not doing businesB within the purview of the
statute above referred to, and hence the statute has no application.
The foregoing facts bring the case within the reasoning and con-
clusion of the Supreme Court in Lehigh Port Isuid Cement Jo. v.
McLean, 245 111. 326, in which opinion the rule under consideration
is discusaed at length, with copious quotations from many other
oases* In that case it was held that corporations engaged in
Interstate commerce are not amenable to the proviaions of the act
above referred to, and hence by the vary language of the act
itself are excluded I'rora its opera,«ion.''
In Youn^ v. Meyer-Hud olph Shoe Co., 261 111. App, 327, under
facts similar to the case of -onerican Art \»'orks v. Chicago Picture
Co., supra, it ^aa held that a foreign oorporation has a right to
transact Interstate coiiomerce and to obtain business through agents
in this Litate where the contracts are finally consummated in the
home state of the corporation*
On the conditional sales contract executed by defendant Tatter,
Upon whioh plaintiff's claia of title to the chattels replevied Is
mm
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oO IS%niai;i O^^'Oiii'O «V B3fI0_r/^ ■J; Xfx K^_q J "Z aiflj^ Hi'
leirtool -isr. laqiOKXTq '
10* ?oi'r-o ns bsfl »rl .sfooog 6
en
&0If£iq939.
be. ,
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ibesooM
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based , appears the notationt "accepted at Troy» Cliio» on October
27, 1931. Ho"bert Brothers Company, "by i). G. Jenkins, Credit Mgr."
No svldenoe wac Introduced to overcome this proof, and it will
therefore "be presumed that the contract did noc Tjacoiae effectir*
until it was accepted 'by plaintiff et Troy, Ohio. Moreover, the
contract, -which is dated October 24th, is addressed to plaintiff
at ?roy, Ohio, and requests it to ship to defendant by freigj&t
the arc welder involved. The a coaptanoe by plaintiff of the con-
tract did not take place until three days later. ?roa these faoto
it would appear that T«hile the contract -vras solicited in the Stato
of Illinois, it was consununatsd in Ohio and was treated by the
parties as a transaction in interstate oommeroe. These circum-
stances, together with the feet that the seller resided in Ohio»
the chattel was shipped from Ohio, and as heretofore stated the
contract vfas accepted in Ohio, ^ould aeom clevrly to stamp the
transaction aB one vlthin the purview of the authorities hereto-
fore cited* We therefore conclude that the defense interposedp
namely, that plaintiff was an unlicensed foreign corporation "doing
businesa" in the '^tate of Illinois j v/as not emtalned by the evi-
dence, and that plaintiff had the legal right to maintain its
replevin action in the courts of this State,
It is urged that the court erred in excluding evidence of
acts relied on by defendants to support the defense that plaintiff
is an unlicensed foreign corporation doing business in this State.
This evidence related to a single Isolated transaction, and in-
volved the leasing of a welder to the Morrison company during the
pendency of this action. We think the court properly excluded the
evidence, not only because an isolated transaction is not sufficient
to constitute "doing business" within the statute (Alpena Cement Co*
V. Jenkins & Reynolds, supra) , but also because the transaction
sought to be shown occurred after the comaencement of this proceeding.
-5'
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at I ni :-ivi.
. .,. , li?)^' ■5*>:,«» ©r(*
^t;o H2UTIi
.=?a?»nia5/rf
ll . • - ■ .■ ■
Lastly, It le urged tliat the court refused dsf^ndants
the opportunity to prove their »9t>eff, which was Isaaad on
rental of spac 'by plaintiff in riefendants' building, 8tenographer»
telephone and storage charges, and various other ItouiP), aggregating
•t'B88.40. The court excluded this evidence on the th'jory that a
plea of aet-off is not projjer In an ruction of replevin, and we
think properly so. Replevin is a possessory action, e.nd the only
is&ue involved is the right to the possession ol the chf:,ttel in
question* Therefore, the 'dmiefjlon of such evidence \vould hare
"been erroneous* (General Mo tors .'.ceejptancg Cor^» v. VRupJhpi358
111. 541, 548; Cheoker Taxii Go. v. Turkington, 273 111. App, 112|
Fairbanks t. Malloyj^ 16 111. '.pp. 277 j 54 Corpus Juris, 418.)
Since there was no competent evidence offered on behalf of
defendants to sustain their defense to the action of replevin, we
are of the opinion that the court properly directed a verdict in
plaintiff's favor at the close of all the ^evidence. During the
pendency of this cause plaintiff moved to strike the hill of ex-
ceptions from the record, and to dismiss the TJrit of error. This
motion wa3 reserved to the hearing, and will now "be denied.
Tinding no convincing reasons for reversal, the judgment
of the launloipal court is affirmed.
2cej3lan» ?• J., and Sullivan, J., concur*
^xii^jejiai^a'S tRi^'"^i T.^-xf^o RMoi-:.?
iij« loqqo axii
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88^$
svflil &IUD"^ V on.- '
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S.e',(llott.:
38534
PHILIP A. ISAJJQWSOS,
Appellant*
J. S. BACHB, !• WIS3, H, KA.mr,
P. J, KDHPHT, A. F, B0I3SBICK,
!• =i* BACHS, HAROLD S. BACHB,
W, F. STSBiff, F. L. RIGHARBS and
J0S3PH P. (HsIFFIIsr, partners as
J* S* Bache & Oo*}
Appellees*
APPEiOi FROK SUPERIOR
COURT, cook: COUITTY.
285 I.A. 594
^
t. J^TICB JRISHD EBLIVBEBD THS OPIHIOH OP THE COURT.
Plaintiff brought an action in torty claiming daBaages
for fraudvijlent mlsrepresentatione inducing the sale of bonds "bj
defendants as partners of J» S* Bache & Coiapany* Judgment was
entered for defendants pursuant to a directed verdict » and
plaintiff appeals*
The declaration alleged that in September! 1925, plain-
tiff was Indttoed to purchase $20,000 worth of bonds issued bj th*
Orohard Coal Co*, upon the representation that the Orchard Coal
Co* and its subsidiaries) Soranton Coal Tfining Co« and Lake A
Sxpert Coal Sales Corporation of Illinois, had at that time fixed
properties amounting to $19458 9 628 •34 » current assets of ^489,038*28
and current liabilities amounting to $442,957 .Qli that Orchard
Coal Co* owned a mine having a daily output of 1500 tons of coaly
and controlled the Soranton Coal Mining Companyy which had mining
property with a daily capacity of 2500 tons of ooal| that Lake *
Sxpert Coal Sales Corporation had at all times $200,000 quick assets
and normal esu-nings of $50,000 to $100,000 per annum; that the total
earnings before interest of the Orchard Coal Co* from its operations
{'S58£
(llHi^ *
\
kQ^ ..A J^HS.
(
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f 1 t
;;Uir
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01
•T3JJ00 mT "SO Kamrjo sset asfir^ua-^ aiiax:?s aoiTeiFt *m
0tf# ^d heu«aJt a^^o«f lo ff;t'row WOxOSf tio^do'isjq i)i btittssbtti ajBW 1:51*
XaoO MailoTO 0ff^ ;>j3xfrf co±;fj»da»«9i{f»« &jii ^oqi/ t.oO IsoO fttsifoaO
d eaL>J bits »o? sninM X*joO aoinn'ce':. ,8t»jt*.cai{)i:o€f«a eiJt bnA veO
taAifoTd tfaiC^ |I8.V<J^,S*^^ oi siil^/moiaa aeiiiUdAil iMriuo bam
<ia»9 to %t»i OOflX to Jtfq^iWG i^Il/^b a sflivarf ©nim e bonwo .oO £a«8
IMtJtiila b«c{ xtolilw ibXM«>wO »Bin2M XaoO noitstsitD: ojf.i b«XIoT#noo bm
A ViCJhl #afi# tX«oo t9 ano^ O0di> lo t'^io^q[i;t> yII L ^ rrji v^ Y«^^A%0'H^
a^988£ loitfp OOetOCttf c«Hi;r IXa id ixpii ixottf^tOQ-suv. ...a... i..oO ixo^pdE
lAtod srii iA/!i imutitiM f% 90U|OOI| o;t 000(064 to ui^tn'Sjf I««n«£ bxui
-2»
aBd aooruing by reason of Ita ownership of 100^ of the stook of
the LaJCe & Export CoaX Sales Corporatloa* and 49 »9^ of the stook
of the Soranton Coal Mining Company, for the fisoca years ending
Haroh 31 t 1923 » and March 31 » 1934, were $162 •124*94 •
It was alleged tbat In pursuance of the foregoing repre-
sentations plaintiff purchased from defendants bonds of the Orchard
Coal Co«» as follows i September 17, 192S - bonds to the amount of
|10,000| September 22, 1925 «• bonds to the amount of |3»000| and ea
Sept-imber 29, 1925 - bonds to the amount of ^TyOOO, for which he paid
the aggregate amount of ^2C»016«17| that the representations v/ere
false in that the Orchard Coal Co*, and its subsidiaries had fixed
properties Talued at $300,000, instead of ^1,4S&9628»54, current
assets to the amount of flOOsOOO, instead of ^4S9f 038*28, and current
liabilities to the extent of $700,000 instead of ?>442»957.91j that
the Orchard Coal Co* evened a mine haring a daily output of, to^wity
no tons of eeal^ instead of 1,50C tone; that it had property with a
daily capacity of, to^^it, no tons, instes^ of 2,500 tons of coal;
and Lake ft Export Coal Sales Corporation had at all times assets ef,
to-witj no dollars, instead of )200,000, and normal earnings of,
tO'iivit, no dollars, instead of #50,000 to 1100,000 per annum; that
the total earnings before interest ox the Orchard Coal Co* from its
operations, and accruing by reason of its ownership of 100^ of the
stook of the Lake & export Coal Sales Corporation, and 49*9^ of the
stock of the 3crantoB Coal Mining Co* for the fiscal years ending
l&arch 31, 1923, and March 31, 1924, were, to-wit, no dollars, insteeA
of I 162 .124 •94* It is arerred that when defendants made these
representations they knew them to be false and made them <vith the
intention of having plaintiff rely thereon in making said purchases,
and that plaintiff did net know that the representations wore false
and relied thereon*
Defendants' answer admits the purchase of the bonds; denies
:l9oSa »Hi lo )(9«9J^ bn£ tJioxo^ xOqioO s&JU'c X«oO ^x««icS ^ 9:i84Z 9dd
• *-e«*aX.gdJ[ r . « ex tic xf««sM lais ,£Sex ,Xg ifo^«M
-dTosi gfiloi^e'xo'i siii ^0 »ons0aauq at i»ti.* 5033X1*5 a«w *I
bradorO edt \o abnotf BJ'nsb^9l'^^ mott bas^rioTWi fj^ijtoifslq anoi;^A^fi&a
to imrorat* »rii orf abnotf - 5S :. ^ . t:odiS9;Jqf0S iswJtXXc-c a« ».oO XsoO
BTIt''- »1IU a. c.-i JUT ■'■.-> , ^. . V .'_ , .iia-' S**«»
#nei"»u , t .. e ' ■ < ? '^ iasoue &di oi oitosaA
,Jiw-o;J tlo iU'i^iSC --. B«iY-' -^T*^® '©^ X»oO &TBXis»TO 9x£d'
V dixv xirQq(ytq b^ri ^: hi^^mi |Xj8O0 !o aaocr on
.to a^foea-s eamiJ XXs ^r i>.Mil coifi'aToq[T:oO laXa-y X«oO .I'xoqxfT A »atoJ ftii«
,lo rsntr.".. -.;.• X«?iio« brts ,C0C,OCS* lo &.s>».f--f?x ,3T#Xi:<M> ok ^*1w«oJ
fljCi to ifOOX to qritfanoawc ,ci-o.U'i- ...^ao
BlEitao exasx Xaoai^ ex£3 toI •oO gialxii;!: X«Oi/ no*««toC ©tl* lo ioo**
biM-#«irl ,«f«XXof • < , ■ rew t^SeX tic cfoisa bojs ,€S&X ,X€ dstusif^^j^
■t# ilijhr «>iiw •t,aai bnj2 euXn'i gtf od K»xf* Hr»ml x»fi^ 8itol;fi8io©asnc(i€)'x
ooXet •«•» c«oi*«^no8fj^qoic &d^ t&di wotot *on bib tli^iKUI^ #Bii# bflUB
iOlBdb |«tootf sd.i Ic QamdottKi »di a4kmb» loveuto 'sc^iiefoitdlsa
-3-
that th«3r made any false rspresentntioaa to plaintiff with the in-
tention of harlBg hia rely thereon in making said purchases, or that
they knew the represeatatlona alleged hy plaintiff to hare heen f fa»e
*r Bade with the intention of having plaintiff rely thereon, or that
plaintiff did rely Ui»on any of the repreeentationB charged, defend-
ants further deny that the hond@ of the Orchard Coal Oo« Tfere north-
less at the tine of thfi purchase and that plaintiff was d'aaaged*
The facte disclose that these bonds were sold to plaintiff
"by Itr* Allen of the hond iepartaent of J, s. Baehe it Co# There is
no oontentloB that Allen had any personal knowledge of the affairs
of the Orchard Coal Co., and it is oonoeded that whaterer representations
he made are contained in a printed ciroiaar introcuoed in evidenoe as
Sxhiblt 1, which consisted of a letter signed hy B. y. Sent, preeident
of the Orchard Goal Co., setting forth in separate paragraphs facts
relating to the hiasiness and properties of the company and the sectirity
of the mortgage bonds. It was represented in the letter that the
OMKpany had assets of #l»458f000, and current liabilities of $489,000i
that its earnings were 2-1/3 times more than the interest nhp.rges on
the bonds) that it had clear title to coal righto in fee to a total of
2167.22 acres, in addition to 36,24 acres of surface lands suiteble for
shaft and mine building, with a potential daily output of 1,500 tons
and a capacity for development of 3,500 tons; that the company also
controlled tho Scranton Goal Mining Co., with a daily capacity of
2,600 tonsi and the Lake & Sxport Coal Sales Corporation, which wps
engaged in marketing the Scranton mines, as well as the output of
several other large mines, and had at all times #200,000 quick asneti
and normal earnings of $50,00 to ^100,000 per annum. Appended to tho
president's letter was a consolidated balance sheet of the three
companies and a statement that the legality of the bonds had been
approved by Chapman, Cutler & Parker, attorneys in Chleago. On tho
*^-
f -■■ C'^sse/sritrxj^ Wan sB-^^t^oi "^ rroft-f ,r.t -\r*>-r nriK gaiYjsii 1:© noises*
xtf
i:«iiq»4ii&0
lilt ant
'"i *n3^i?T!T.'-
rJ bofti^^iios »xs 9b«a sjK
, ::.*:rO0I 9ll. iO
It© J0iiiii» or <jr a*. (Osaltt co;?«,-='T©5: ©jS* i^Ki5»'Aima at &«MBi»
t^s'ios iCottfp 0CO,;:,CiC;i ueatliJ Up ia ftisri oca to&ht^ oaiaX ieii#<i X«x9T8tt
•*' o^ ^' Tt»<I 000,0011 di 00,bC$ to s»nl«iLo» Xj»«t«H J)«»
•♦?ri3 »ifi xo ifreerifi »9nj«lB<^ ba#al>JtXoafti09 e atiW Tt«*^«X s '*fl»6i39t^
■^i:.-Ti^'^ '^'^ O.iliw
-4-
IsettOB of the front pag« of the clroular iippeared the followingt
"All statements herein are official and are based on
inforiBation whloh ^e regard as reliable » and vfhile vie do not
guarantee theiB» ve ourselres hare relied upon them in the
offering of this security."
IB addition to the infonnatlon contained in the printed eirciaarp
fluad in response to plaintiff* s inquiry Alien informed plaintiff
that the output of the mines was sold to large industrial oonoernsy
railroads and utility companies of recognized standing*
It appears from the eyidenoe that sereral weeks after tho
purchase of the honde Allen called plaintiff to the office of J* 3*
Baoho At Oo«» and suggested that he exchange the Orchard Coal Co*
eecurities for the new issue » bonds of the Standard Coal & Coke
Co*» hecause the latter was a stronger and hotter concern* The
exchange was made and plaintiff was paid the difference of 4i>l»OdO*
Seme three weeks later plaintiff adTised Allen that he had heard
that the honde of the Orchard Coal Co* and of the Standard Coal ft
Coke Co* were worthless » that the mines were olosed down and no coal
had heen mined for a long time* Ahout two weeks after plaintiff
again called OB Allen and told him that he had been down to the
Orchard Coal mines a»d had learned from Mr* Janes* the foreman in
charge, that the company was involTed i» foreclosure proceedings and
had not shipped any coal for eight months and owed the miners largo
Bvaaa of money for wages. Plaintiff testified that Allen then adrisod
him that Standard Coak & Coke Go» was putting out #300,000 in notes
and that if It wae known "down the street •• they wore bankrupt, J* S.
Baohe & Co. would not be able to sell the notes, and Allen suggested
that If plaintiff ^ould "lie low for a week" he would reoeire hlo
money haok| that after waiting a week plaintiff again complained to
Allon, who told him to be pat4ont and wait another week; that ho
thereafter complained to Mr. Curran, one of the officials of Bache
& Co., telling him that he found out about the condition of the
'i!Micl«Ig. lieatotai n^lla x^Jtu, xJaJtaX. noqBi*^ ci baa
eoil^o »x{.t o* fiiJaisXtr &i5lX/?9 uaXXA afcnotf eil. ,.;xf.o'x»<j
-t',..
Mi. - ■.-.^' ?>:{ fv
.;{iii bXOv iXA i(43 l^»XXfi« fil«8J|
*w XK^Q^oo out J .-.i-Iw ,i5Si^'3r£9
•Bt»»X STOHiiri erf;f be7.-o hits Gi«;rnoB: irfi^x iaoo ^WJ b«qqli«« *©li Mil
•e^on nl 000, OOC?. Juo a«±J«iiq nm-; , oO I. jijateO JSiiebastS tMi mti
^iB«>iBtf« «»XXA bofi ,o«*o« Biii XX«a od cXdw ncf ion f.ijM»-^ •90 ^ «ifo^
•4 i^i \:k09v -nAfoD^ *Xaw tee tn&iki*ni ^^ o.> mI^ ^loa ©rf^ ^H»XXA
Oroliard Ooal Co* and wemted his nonej "baoky and that Gurran proBBiad
to let plaintiff hear from hiB^hut aerer did sof that afterward
plaintiff coaplained to Mr* Oriffin» one of the defendants » telling
hiB that he had learned of the Bisrepresentations sadey that the
Bines were closed and the ooBipany bankrupt » vrhereupon Griffin llkewiaa
proBised to let plaintiff hear frcm hiB» but failed to do aof that h*
again Galled on ariffin* sOBe tiae later » and brought with hiB the
printed circular containing the representations complained of and
called his attention to the fact that the mines had been closed for
eight Bonthe; that the company owed $95^000 on its notes and $335»000
en current expenses and n«ir equipBent which had been installed in the
Bines f and plaintiff states that Griffin admitted to hin that ha ka««
tha bonds ware worthless and that Allen had no right to sell thea;
that when plaintiff told Sriff in he had depended on the inforaation
contained in the eireular Griffin answered that if the Inforoation
were true the bonds would be worth what plaintiff had paid for thes*
It is first urged as grounds for rerersal that the court
Bisconoeired the rule of law applioahle to actions based on fraudulent
Bisrepresentatlons and in directing a verdict in faror of defendants »
invoked the legal principle that "one v?ho qualifies his representation
by language iBdieating that it la Bade merely on information and belief
is not liable for its falsity?" whereas, the correct principle» as con-
tended for by plaintiff, is "that one who qualifies Ms representation
by language Indicatliig that it is msule merely on inforaation and belief f
and who honestly belieree such representations to be true^ is not liablo
for its falsity."
Plaintiff* s case was predicated upon the allegation that cer-
tain facts contained in the printed clrcixlar were false, and known by
defendants to be false* The rule is well settled that an action for
fraud and deceit must show six eleaents in order to afford relief:
(1) The misrepresentation must be in fora a statement of fact| (2)
•ii *8jrf* |oa •& oi boXJbot Jtrtf ,isxjrt moTt ^^erl l!ii;^cr.?*lc .* Ibeainenq
ad^ utd riJi'vT iil^uc < is*«X sficl;^ eaoa ,Kii!ti.EO ixo fesXXao aIa^
t9\ besoXo neocif b;sd aaatm &di ^&ii- nviiP9it» BkA b9lJjB0
•lid nl boXXe^arri: n-^/Scf S.?.ri rlr^M^- d-nsffrcriy • '^^ wen In: i,i^as9qxB ia&iiun ao
waesf Bd iadz ; ,3*/5?3 I'^lictislQ tofl ,a©nlt9:
no ' ^
\R9luhasit\ no bea^cf anoiJos o;? ?>XC'^<>iXq<3:« ^'^X to sXjin: eri* b«Tieoaot>8Jta
iol^a^0»«ietq^ eiif ^^•ililfajp oniw an© i^f= . « tUt-lftlAXq Xii tol be»b«d^
► iX»tf Wt« aoii£ffiici.0£ AC y.r*t»«!!F i»I;(fi.'. j.^ti^ 5^BidBoi'ni ©S'^ixsoaX X<f
laJX ioa tX ^*><r<tf ttf o? > i - 'uaf ^q^ex 4?J-''- ■^■■'▼*»xX'.:g( yXii;»a^ 9^ has
-T90 i«iii noi J.'i>isXXfl sdi floqu Jb«*«olb«nq a«ir »C' v . * ilidaiaX«i
-6-
It mast "be aade for the purpose of Influenolng the othar party
to act} (3) It aust be untrue | (4} the party Buiklxtg tho statoment
must know or belieTO it to be \uitrue; (6) the person to whoa it
l8 Bade aust boliere and rely on the stateaent; and (6) the stato-
Bent Buat be Material* (Johnson v« Shoclcey» 335 111. 363 » 366 1
KrankowBkl ▼. Knapp» 268 111. 183, 190.) Applying these principlae
to the proof adduoed by plaintiff » w@ conclude that he failed to prore
the charges Bade in his declaration. M&z^ of the rspreaentatioBS
complained of y^ere mere matters of opinion and not representations of
faet. It is first alleged that defendants represented that the
Orohard Coal Co. had fixed properties amounting to $1,458^628*34, and
eurrent assets anountiag to ^89 ,038 .28 • ?here is nothing in the
record to show that these values were incorrect. And the same Is true
•f the representation that the current liabilities of the Orchard Coal
Co. amounted to #442,957.91. Another representation complained of ia
that the company owned a mine hariag a daily output of 1,500 tons,
hut no proof was made of the falsity of this representation. It ie
also alleged that defendants represented the Orchard Coal Co. aa oon-
trolling the Seranton Coal Mining Co., which had mining properties
with a daily output of 2,500 tons, hut plaintiff offered no proof to
show that the Orchard Coal Co» did not control the Sorantoa Company,
or that the latter did not have mining property of the daily oapacity
represented. With reference to the Lake & liixport Coal Sales Cor-
poration, it is urged that defendants represented that it had $200,000
quiek assets. Defendants contend that this was a mere matter of
opinion, but regardless of that question no proof was offered to the
contrary. It is also alleged that defendants represented the Lake &
Export Coal Sales Corporatiom to h&re normal earnings of C'50,000 to
llOOvOOO per annum, but proof is lacking to show the falsity of that
statement. Finally, it is alleged that defendants represented the
total earnings of the Orchard Coal Co. for the two fiscal years ending
dl cm<w o# aoai'iq ?tdi (a) {sy-c^uu ©«t d* *i sTftiI>6 10 voaaf ieiUB
-t^M^B «di (d) li«6 iStiVBEtiBiif 9A4 no Y^!^:s r>ftA dvat^Xd^r 49Mbi »JusiB ax
|c>»fi tSdC .Xil «€£ «Te>:<CK?iet.w: .v ii»»R4iQl.J .X«it94^sB *<f *ai«t ^fMMi
u^lKtoninci ma^sLa s«i'4i:<!q-"^ (.OCX ,«SX ♦XXI SaS ^gq>8a> -"^ ^^"TftSllflilBrf
8»i4'xe'T«rr' rifjrpfir hrii jfoiriv , > liiciM X«oO AOi^iwx^^ aii* ijialLl9ii
000,008^ bai< $i $jui^ h^^t U. „. "1*81*1
* »ai**i Sit- ^>6«i-o > Hi-^i £;iai)fuiQV'fj #4ail? ixsgeXXe os ; .'.tAtcfn^o
SiLflbce aTU»x i«acn o«r* e«(j zol ,60 Xc»o ftwlMc© ^«[# '^© tanlartjio Lite*
•7-
In ^%roh, 1924, as •f"162,124 .94, but no proof was offered to re^ut
the truth of the statement.
Plaintiff testified that after reading the circular contain-
ing the representations complained of, he purchased the bonds, and
it is conceded that In October of the ss-ae year he exchanged these
securities for 4;lt082 in cash and $20,000 par value of bonds iBnued
by the Standard Coal & Coke Co., irhich through some prece^B ot re-
organization had acquired the properties of the Orchard Coal Co.
It appears from the evidenee that about nine Months after plaintiff's
purchase a receirer was appointed for the Standard Coal k Coke Co.
In the inttrvening period, plaintiff brought suit on March 26, 1926,
against defendants, seeking to set aside his purchase under the Blu«
Sky Iiair. Hia declaration, introduced In evidence, contains no
suggestion of the fraudulent representations of which he now ooa-
plains. kjo. amended declaration we-s filed in September, 1926, a
second amended declaration in July, 1937, and a third amended
deolaration in January, 1928, all of which appear in the record.
Hone of these pleadings contains any suggestion of the fraudulent
representations charged, but sxe predicated solely upon the proTlsions
of the Blue Sky Law. .^hen the ease was called for trial plaintiff
aeked to withdraw a juror, and thereafter, in April, 1929, »ore than
three years after suit was first instituted, filed a fourth declaration,
for the first tiae alleging fraud. During this Idng period of tima
plaintiff filed various other suits, one against Crone, president of
the Standard Goal ft Ctflce (C«», alleging that the latter was instruaental
in causing the Standard Goal & Coke Co. to exchange 1:8 bonds for those
of the Orchard Coal Co.> and that the exchange was in violation of
the Blue Sky Law and that plaintiff was damaged to the extent of
^20,000. That suit evidently proceeded upon the theory that the
Orchard Coal Co. bonds, which are here alleged to be worthless,
had a value ef #20,000. Another suit, ba-sed upon the saae tiieory.
• «lcti.tni«JJi xattr, rui^p.oa tain ^fwotfa imdi &«n:»i>lv» ©4^ ikoi^ sxf;t
rfneXwbittiil saii io rfoi';^e?©:::^iiy ^c"-;i onisicao' ?:q|itil)j8«X<r *»«*W 1© dAO%
diAial9»b AJ'tuoli a baXx'i ^b»iuitii^ai iaxi . Jya s«11iJ ^.jt/iB^s o«»afi4.
lismmutisaJL asm ta^^^fiX ecii isAi i^ai^elL; %m9/^ aolaA A imoO ftim^aQ^^ VJi'i
lie foki^loir ni saw a^cuutioxe «i{tf insiS bins i«oO JbMQ li%^oi[£) ■ .>
to tisatX9 Bri;r o* fe«B-'«««b aaw 13id4ii«Xq 4«£l* f)iiF. vrsJ t:^'- saXS «k|l*
•8-
«»« Instituted against one Buoloaani likewise predicated on rio-
lation of the Bl|a« Sky Lav* Another proceeding* similar in character »
was instituted against Carlton <& Koeppey and still anoth«$r suit v&e
broucht against the defendants in this proceeding, alleging that they
had exchanged Standard bonds for hie Orchard Coal Co. bonds, in Tio-
latlon of the Blue Sky Law, and that he had been damaged in the sua
of |20,000« The declarations in all these oases were verified, and
the euits were predicated upon the theory that the Orchard Coal Co*
bonds, which are here alleged to have been worthless when purchased
In 1925, were -orth |20,000 when they were exchanged for standard
bonds, a month later*
There is nothing in the record to indicate that /Olen, who
is the only one with whom plaintiff dealt prior to the purchase of
the bonds, and who is alleged to hare made the representations, knew
them to be false, and, as heretofore indicated, there is no evi-
dence from which the court could find that the representations were
in fact false. Since the action is predicated on fraud, it was in-
cumbent upon plaintiff to prove fraud by dear and convincing evi-
dence (Schiavone v. Aahton, 332 111. 484, 498-9), and his failure
so to do precludes him from recovery. J?^om all that appears in the
record there is nothing to indicate that Allen, who sold plaintiff
these bonds, did not honestly believe the representations to be true*
On the question o" daaiages, plaintiff contends that he is
entitled to the difference between what the property would have been
T^orth if the representations had been true and what it was in fact
worth. Defendants concede this to He the correct measure of damages.
Hevertheless plaintiff had the burden under that rule to prove v.hat
the bonds were worth when he bought them, and there is no evidence
whatever on this point. The argument advanced in plaintif f » a brief
assumes that because the Standard Goal & Coke Go. went into seeeiver^
ship some nine awnths after the original transaction viaa consumniated
-6-
wt9«Tfiiio tit xoHwi« tbo^io&oooiq i©ri*on. .wjsJ '^^. •IfXS ^dt to coHbI
-c. , ioC hxariorjrt) ei,. -notf fc'r .s^frsiifore I>Ml
■jt -if di' rrcctr ^- taw aiixrtt »£{#
J:: 'i%3i\ri :.ti', ~' " • ■' '' -.ry -""uJ m*
,vr:o: \ :■ -ecTc . , abftdcT «y|||
- r • . : rr»b
MS.SC evad blxrow Y^t«fo!iQ ©rii f«if^ ne^t^^-vf iJiint
• 'u •/.. oil »i 9,9^^ b^ ,^^j^ cTiSEgifOcf - ,_. co^-r ^.f^w rftliod <m»
" ■ i..---. iu am .:-;yj.^, , . njtn •opta q^ilte
-9-
that the bonds of thet Crckerd Coal Co. JbOBadoc were worthless when
plaintiff bought th,em. Xhls asaumption Is hardly oonsinti^nt witk
the fact that plaintiff made the exchange of bonds a month aftes-
hl8 purohase, and receired 4^1»082 in cash plus the Standard bonds*
The Standard Co* receivership had no direct bearing upon ths value
of the Orchard Coal ">o» bonds* The exchange wae made by plaintiff
voluntarily, and he does not charge any fraud In connection v?lth that
transaotion. The total mortgage indebtedness of the Orchard Coal. Co*,
according to the circular, was |461|600, whereas that of the standard
Co* was ^1,300,000, and it would appear therefore that plaintiff's
loss resulted, not from the purohaee of che Orchard Coal Go* bonds
but from the subsequent exchange for junior bonds of another coinpany
which had a much greater ladebtednees* In fact, this was the theory
underlying the seTeral proceedings filed by plaintiff to set aeide
the exchange under the Blue SJcy Law, and plaintiff took oath that he
had been dasaged to the extent of 120,000 by the exchange of thes«
securities. The four suite hereinbefore mentioned evidently pro-
ceeded upon the aestuBption that the Orchard bonds were worth what
plaintiff paid for them, and It was only after the Blue 8ky litigation
failed that plaintiff resorted to the charges of fraudulent mis-
representations and alleged that the Orchard bonds, whioh he thereto-
fore contended were worth ^20,000, were actually worthless*
On the CiuestiOB of fraud, plaintif/ relies principally upon
his conversation with Joseph P* driffin, one of the dsfendants, during
whioh (Jriffin is stated to have said that he knew the Orchard bonds
were bad, that the company was no good, and that the bond 3 should not
have been sold* since the judgzaent in favor of defendants was entered
en a directed verdict, we must assume that Griffin so stated, hoT^ewer
improbable It seems that ono of the partners of J* ^s. B«che & Co.
should have voluntarily made such a statement. However, In the
same conversation Oriffin said thet he, like plaintiff, had also
j>-a? Ail* f.oii»enifoo ni feiw-xl ^^a «SXjBda *ox! «eo& ©if feUfe; i\ll%r>irfuLoir
..;^.-..,. .... .-„.- . . .-- tii©*ii(e9a »»»JE
: j^JiiT £;;;ao Hod Ytlitsi&Lq bti» «VJUI ^£ &m£K ^i ishtfti Q'itBUSStSKti tlU
i«i^ 7^?? *if.f?:' ':^rf* rtotXa Xiao saw .tJ; £rfi« ,Mi»xil «|tt Jbliaq l:it*iii*Ior
-«i*«Tft«!J- «kd ftolilw tetiit«tf fexi->xi9i:0 aii* tfa^* b»j»XX9 ftiw? «ffol2s!^ffi»»«»^^»l
,u»oXrf;Jt<*w TriXFxr*o«» «'£»# ,000,08% {T ^w b«ferrsJw»o «T*t
#tn U0«ii0 r J>MK^ ci(d ii-.iii ooA tho«3 on e4«!^ ^fpm^mtn mit dai^.^ «^)ficf sisir
1fX9tttt» »»*» a#<i hr 1" ■ T^o tov«l ni :5: €)s.;e^o:/t. alf* «t>itiD , M.'ja K»ftrf *T.»d
-10-
relied on the circular, and it is highly improbable that he could
hare done so if he had known that the bonds were worthless when
plaintiff bought th«a« In any erent, Griff in* b statement did not
tend to proTe the facts which plaintiff was required to prore.
toiffin made no representations to Induce plaintiff's purchase, and
in fact nerer heard of it until aereral months thereafter, and plain-
tiff's testimony as to the conrersation had with Griffin could not be
taken as an admission of the falsity of the facts contained in the
eirottlar, which is the gist of plaintiff's action.
What we hare said leads to the conclusion that plaintiff
failed to prove that he was induced to purchase these bonds through
the fraudulent misrepresentations of defendants, and also to show
that he was damaged* The court was therefore Justified in directing
a verdict in favor of defendants at the cloeo of plaintiff's case»
/vccordinglyt the Judgment of the Superior court is affirmed*
ATTIBMBa}*
Seanlaa, P* J«, and Sulllveoa, J«, eonour*
*.^-«^
38830
Appellee t
T»
CARSO:^ PIRI-S SCOTT & COMPAJBIY,
a oorporation>
Appe3ilaiit*
APPBAL PROM MDHICI^AL
COUBT OF CmCAOO.
28 5I.A. 5 95^
MR. JUSTICE yRIEHD BSLIVBSRSD THS OPIiriOlf pF THE COURT,
Plaintiff brought suit to reooTer daK»ages for injuries
resulting froa a fall on tlie stairway of defendant's department
store* Trial vas liad before the court witheWt a jury, and at
the olesc of plaintiff's eridenee judgaeat va s entered in faTor
of defendant, aubsequentlyt on plaintiff's aw otion, the court
granted a new trial. The cause is here for r evio^ under an
order of this court allowing defendant's petitl on for leave to
appeal •
Plaintiff 8 statement of claim charged d efendant with
negligently permitting "the stairs to the basemer. vt of said s
to be and ireiiuain in a dangerous condition, and ga ve the pl* ^
no warning or notice thereof i** that in consequence thereof P
tiff fell down the stairs into the basement below i 'md was severe J
injured; that she suffered great pain and became o"b jlig»**°
surgeon's charges to the extent of |125 suid lost ti. ^o weeks
at §35 a week*
The only eridenee introduced at the trial c*
plaintiff's testimony and that of Hr* Alger A, Clari
her after the injury. Plaintiff testified that oa t
at about two o'clock in the afternoon* while shoppjf
■tore she was descending the staiirway into the bas^
insisted of
,, who attended
jetober 2,1934,
in defendant'
^nt when her
0f.8C«
.00A01H3 "^ro I'mrno I
^Be S.A.I-
^Twoo exi;f tflciJ^c -ifl B'lYs.^ate.Lq no t^^Xdn©tjp®e<if«fc, *ita«l)fia'i:9fa io
'C^&xsvea baw *•*,,,, i ««Idtf ^iminacr erfi o;ini a^l»;J& exit a^ol) XX»t 1^11*
^ol 6etfi«jjix<, tfa ttttaoftcT bfs» nieq *B»%a {»»t»l^«e srf« rfjariJ |6»tJtft«i
^o betHtftaif ,0 j[j,i<s;) erf* l« b^ouboitml ©ansbJ-vy y.Xno sii:i
»/>no^;f:: Off , , t»i^lu\ .m lo ^.-.dJ oiw3 TC«o«icias* a 'tliJfiXiiXq
no/iv ;tit/ itBtiii alii oi f- ' - --■•i«*a sxtcr -^ni^fr ■>"•?- •• '■■'f-' "-^o**
-2-
heel caught on the steel plate on the edge of the second step froM
the top> causing her to trip and fall to the bottom of th« stair-
way t - a distanee of a'bout six stairs* She fell forward and was
slightly shaken* Her ankle was sprained and her right knee and
shin bruised* She was taken ia a wheel chair to the infirnary ia
defendant's Btore» where she was treated and bandaged* iifter
leariag the infirnary she returned to her place of employment
hut was unable to resume work and then proceeded to the office of
Br* Clark in the Pittsfield building* who examined her and gave
her further treatments* Thereafter she went home in a taxicab*
Dr* Clarkt plaintiff's only other wltnessi testified that
he applied dressings and new bandages to plaintiff's shia bone»
that she complained of severe backache and pain in the lower part
of the abdomen t that he examined her three days later and found
a retrod isplacement of the uterus and a tender condition through
the pelvic region* Ho ether evidence was offered by plaintiff,
and at the close of her case the court f otmd in defendant* s favor >
with the following comment x
"The Court: It is regretted that the young lady sus-
tained the injury* but the Court has no alteimative but to allow
the motion*'
As ground for reversal of the order granting a new triG^y
it is urged that plaintiff failed to prove (l) that defendant
negligently permitted the stairs of its etore to be and remain in
a dangerous condition* and (2) that defendant had actual knowledge
of any dangerous or defective condition* or that any such condition
existed for a sufficient length of time so that defendant in the
exercise of ordinary care should have had notice thereof*
The well settled rule of law* v^hich requires one who invites
others on his premises to keep the same in a reasonably safe condi-
tion* does not make the owner an insurer of the persons thereon*
Therefore* in order to permit a recovery in this case it was
arox't <i»^a baoo^s etii to ei^be eds no 9^alq Laeia »sii no od^^aao leexi
fia*i b%tnrxo'i ll^Ti edd ,a'ii^^i'^ xia .tuprffl lo e^n&i^tb b - t\;«w
fOftoc ftixle B*^!tiif!li5J:q o;f sasj^bxstJBd wan bas agaisesii) fceliqqa sd
*iAa xswoi Bids at eJcxsq; fens sii043^»jsc siers. i i^XqjiHoo tdA 44ue(^
f>mic'^ baa i^;sbS. a\^{> oe'^itt -:t>jci fe^^niAGxe da .)i3ii<j «nesiobc(fi drl^ lo
<TOT«t aUflsfenaleb ni feiuiol *uwoo edi qqso leri lo saoXo ^di iB fma
«-c8i3iiaoo s«jwoXIg1 &di dilM
-aire y r{;? *.<^.^ bsjie ;tl j.t^ciJOC sitlT"
. riox^oa bdi
*ft/5bn«lf»b ■i&i- rQxq oJ foslxfil 'ilxJKxaiq 4iilM fe«B'5X! si ii
nl nJUwiftT hoB sif o* &x«ire 3*1: io axx,a;»?4 axli bo*4>i««©« ^XiaejiiLlSsn
s^bcLvornl l»u3oA b»d iafitmf)1^b iadi (Sl , :;;-o. .i^^b «
>i;)i bnoo rfoun y.as *«rf;t tLO ,iiai.tibnoo ertiQ&leh xo ai/oTsaiteb \;a» "io
9; .bns^ob iBdi oa aiux.^ lo tliansX iadloiltut^ a 10I bsialxB
• lo&ieiS* Soi^oxi bexl evAtf bXworfs eis© xtsflilno lo eeJtotexa
- .. ^I*B«osjB»t . Q^ciasTq bXxI no aiitdio
•xio'T-f :; sfioaiftq yiii iLo ittuoni as isxiv/o r:rfj ■v^.-n .lor^ ci&ob tantli
vX Mi«iO aiiiv^ ax y;xavt'jex x. ;^liMi:i ..iiols-ioiiT
necessary for plaintiff to allege and prore that the place in
question was not In a reaEoaably ssfe condition} that if any
unsafe condition did exist, it iwas cauaed by soae negligent act
of defendant or had existed for so long a time that defendant,
in the exerciB© of reasonahle care, rould hare known of it in tlaw
to hare prevented the accident; and that the fall of plaintiff was
not proximately caused hy any lack of ordinary care on her part.
In Leach r. 8«_ S* Kresize Co., 147 Atl. 759 (R. I.), plain-
tiff slipped on a stairway and iras in^lured . It appeared from the
evidence that her heel eame in contaet nith. the braes nosing on one
of the stairs and caused a sliver to rip up from the nosing, thereby
releaeing her heel pmi permitting her to fall and suetaln Injuriee*
The brass nosing when installed on the step Tftas three-ei£:htlis of an
inch thick. It was plaintiff's contenoion that defendant negligently
permitted the nosing to rexaain in use until this condition wj-s un-
safe and dangerous to persons using the stairs* The only evidence
offered to show that the nosing had become worn was that of plain-
tiff, who testified that firfter she had fallen she looked and saw a
sliver of nosing as wide as her finger and four or five inches ia
length extending upward and that the edge of the slirer was sharp
like a saw. The reviev«ing court held that the court properly directec
a verdict for defendant, and saidt
"Assuming that at the time of the accident the nosing la
question was in a drngerous condition, there wa.^ no evlrlrinoe either
that the defendant knew of the condition or that the dangerous con-
dition hrtd existed for such n length of time that defendsjit would
have known of said condition, if reasonable care had been exercised*
* * * "Defendant's duty wan to use reasonable care, and ther« aae
no evidence whatever tending to show that suoh duty was violated*"
In Bohannon v. Leonard ato* stores Co** 197 K* C. 755, 150
S* £• 356f defendant had a retail mercantile business on the first
floor of a building and in oonneotioa with it also had a beauty
parlor ea the second floor. Across the front of each step on the
stairway leading to the beauty parlor was a metal stripf 2 inelies
io^ i^nasll^en emoe ^ef fcsexfBO s.ew ^Jt , ;}sij;:6 bib RQlitbnoQ elBHHII
,*flsfenp1:9£) *i3xf5 soilJ is snoX oa lo'i bsJaXxe Jbexl xo 4a&bn?lab 4o
SAW lli;rni.c- -I/j'i silcr *ijx. ,jfi9|3ioo ,:j^«©vdiei araxi od
MIA on suXaoii Qasza i;ii. ,i amso Xs?94i i.'.ul ^firiw ©onafai'sr©
«1 s«rfoni evi -^ SfiXeOfi to tevlXa
, f • . .
T»^ ri
9di wo cte*a rio^e lo iaoi'L sji^ iso-ru. .looXx baooic: sAi no ioX^uiq[
-4-
wide. The surface of each of these aetal atrips as they ley down
vas one-tenth of an Inch higher than the rurface of the step* The
purpose of the sets! etrtp wes to protect the edge of each step from
vear. Plaintiff had gone to the t>«?.uty parlor and on deseendiag th«
stairway eaught the heel of her left choe on the metal etrip on tlM
edge of the step, and fell. The trial court found in faror of
plaintiff. In rereraing the judgment the reriewlng court seld
(759)1
"The lialjllity of the owner or occupant of a ijuilding used
as a store for the sale of merchandise to a customer or other inritee
for damages reaulting from injuries sustained vjhile such customer or
other invitee was in the building* and oaused hy some condition
therein! is founded upon the principles on which the law of negli-
gence is predicated. * * * The owner or occupant of the building la
not an insurer of the safety of his customer or other invitee, whils
in the building. * * * He is liahle only when the injuries resulting
in damiages were caused by his failure to exercise reaBon^ble care to
provide for the safety 01 his customers or other invitees. * *• *
We are of opinion that the evidence offered at the trial * * * falls
to shov tliat defendant was negligent in maintaining tho stairway * * *
The fall was an aocident» for whieh the defendant is not llahlo."
In both of the foregoing decisions there was sono evidene*
tending to show negligence of the defendant; nererthelesa ths court
in oaoh case held that the evidence submitted » hoth as to negligenoe
and as to noticet was ineufficieat to justify s. finding In f«Tor of
plaintiff. In the instant proceeding there was no evidence that
defendant was negligent, and no proof offered that ths stairs or
metal strip was in a defeotlre or dangerous condition. Neither
was it shown that defendant had notice of such oondition» if it did
•xlst, or that it had existed for a yuffieieat length ol time eo
that defendant, in the exercise of ©rdinaxy cax'e, should have had
knowledge thereof.
Plaintiff's claim la founded solely on the contention that
she caught her heel on the etoel plt.te along the edge of the stop
as she was descending the etalrway in defendant's store* and it is
argued that a priaa f^cie case of negligence was established by ths
fact that "defendant maintained, or allowed to remain in a defeotirc
-.*-
t» lovai J3i Jjruio'^ J'iwoa lair^ ©iJk'T •XJtol i^m* ,q©*g edJ' t© 9afMi
h-tP.L- •C'ri",!
«i
-^ - >s> to\
S
■ :.i
.•.l.tiC'Di5 Hii
o4
xiT
, uiiaiiauiia c.ua^.-
ja&bsvi Oil t»fi-.
kx
bod »▼'
1^^ flOJ7ni.;a«e w(i no ^CX»X^
XH'Oft<
dV'.uno axfB
:t^ ««
eonfUtlon, a etalr-vay with a laotal atrip covering the edge of
each tread." In all the cases cited lay plaintiff there was
evidence of negligence in ;,he naintjaance of the preaises. In
the instant c-abo 'fie are unabla t>o I'ind any evidence in the record
supporting the chiirge and tho arj^umont that uho ata.irv/ay v/aa
"quite obviously In a defective and dangerous condition." '/it]>»
out Buoh proof xjlain!:irf ii-s failed to malce a caae, and ..e think
the court properly mada a finding and entered judgment in defend-
ant's favor at the close of plaintiff's oaae. i^ince the court
found defendant not guilty and entered final judgment on the flnd-
in£^ it will be unnecessary to remand the cass* The order granting
a new trial is therefore reversed*
^eanlan and Sullivani JJ«» eoacur*
. : 0 i i i btipo
&aj5a 9ni lie. i. ■ -^Pid dwts
«'it>OHQO t • .• t- ( . ... *. ...I.-- :.;-■..
38337
PS0PL3 O.f STATj^ of ILLIIJOIS
•X r«l, JOm 3. RUSCH, ./'
Defendant In iSrror, ' ) !„,, ' /
3BR0R jWrCoVi^TY UOURT
HEERY LTiiCH, LOUIS H, CAHBOi^'E ) /
and JOHJi LIBHA, )
Plaintiff! in Error. ) ^ ^ ^7
28 5 I.A. 595"^
MB. JUSTICE 3DLLIVAN DELlVlfiRED THE OPIiilOS OF THE COURT,
Ihl» writ of error issued out of this court July 2, 1935,
la proeeeuted to reTeree a Judgment ol the County court of CooJc
eounty entered by Judge Charles T, Allen on August 17, 1934,
senteiiclng Henry liynch and Louis JS. Carbone, judges of election,
and John Lidra, cleric of election, in the 9th precinct of the
27th ward in the City of Chicago, to the Cook County jail for
ninety days each lor conteuipt of court 00121^3.^1 1 ted as sucn judges
and clerk, respectirely, in their canTass nxxd return of the rotes
east in said precinct at the (General iilectien held ^oYeiiber 4,
X930. In oast i^o, 37796 a writ of error was sued out of this
oourt involving the identioal parties and subject matter. In
that proceeding the conteimnors' bill of exceptions was stricken
TT&oi the record karoh 5, 1935, and thereafter on ii£.ay 24, 1935,
this oourt rendered its opinion affiriuing the judgment of the
County court.
October 8, 1935, the following motion, which was reserred
to heading, was presented in behalf of the defendant in error:
"^ow comes THOMAS J. COURTl^SY, States Attorney of Cook
County, attorney for Defendant in Error, and ifiOves the court to
dismiss the Writ of Brror in the aboTe erititled cause for the
folloTfing reasons:
1. That the same parties. Plaintiff in Srror and DefendaaAt
in Krror, the sanie subject matter, have been adjudicated by this
Honorable Court in court number 37796.
2, Ttiat the errors aseigned by Plaintiffs in Error in the
above entitled eause are included in the asslgruoient of errors filed
by Plaintiffs in j^rror iix cause number 37796, auid all of the issues
tB£8fi
t'tort^. .-^
.w «li*OL ,
^56 2 .A.IS8S
oTiS. at a't'titai&l
.• -n;-^n T-'F? ^;a wm^o sn-T crsfji^YiiarQ: isaVIxiuh edits ut. ,m
, .H ■ , - ■ -i
tO'l I.fjli'. . .-
aa^O";' ssarrwo ixeajr ni ^xiarlio^qB'^i ,ili9lo Jbiis
alxll 'io tuo vjf 1011 i:w ^ deTV£ .oA »ajBO al .0£9i
00 --^w wno- .lid * MTQiun9&tioo 9iit aai:|>'j»»©oig ^jij(£^
•itf^ to sasto^bul ' !l€Ko a. 71 h&'i^bfwi tru oo nidi
,d"twoo ^J"auaO
ftaTt«a«i a«w uoxdw ,nol;tQMB sni-voXXot &iii ,aS€J[ ,8 ttacTotaO
;9av'X« ni insibam't*b en b^d^ndaa-xci a,«w ^^tilQu*od oi
•till 'to
i .TjiU-v'cXXw'l
(i
inTolYed In oaus* numlser 37796 cover the Issues raleed in the
abore entitled cause and esiid issueti have been decided adTereely
to the Plaintiffs in '?rror "by the judtinent of the Appellate Court
oi Illinois, first District, Second Division, in cexise number
37796."
The contemnors contend that they were found guilty of
direct contempt as officers of the County court, tnat it was neces-
sary for the county judge to hare stated in the judtjnent order facts
as to their conduct constituting the content with cufficieiit par-
ti ciilarlty and certainty to show that the court was authorized to
enter the order and that the conclusion of law contained in the
order that they did •knowingly, fraudulently and unlawfully make
false return and eaavass of votes oast" is not a sufficient state-
ment upon which to predicate tlae judgment.
Ifhether or not this contention is meritorious we need not
decide, as the contesmors carjnot be heard to urge it iif^re. As here-
tofore stated, the identical Judgment order contained in the record
now presented was before us in our review of this cause under the
preTlous writ of error and it is inconsequentiai 'Whether the par-
ticular errors assigned now were relied upon in the former proceed-
it
ing. Si>ffic^to say that they could have been.
In Harding Co. y, Har^ifig, 352 111. 417, in passing upon the
question raised by the motion to di'-miss this writ of error, the
eeurt said at page 4?6:
"The doctrine of res .judicata is, that a cauaeof action finally
deteriained between the parties on the merits, by a court of compe-
tent jurisdiction, cannot again be litigated ty new prccerdings
before the same or any other tribunal, except as the judgment or
decree may be brought "before a court of appellate jurisdiction for
review in the manner provided by law, ▲ judgment or decree so
rendered is a complete bar to any subsequent action on the same
claiiii or cause of action, between the same parties or t ose in
privity with them. The doctrine extends not only to the questions
actually decided but to all grounds of recovery or defense which
might have been preeerited. (Wrii^Jit v. Urilfey. 147 111, 496;
Markley v. People. 171 id. 26; Terre Haute and Indimaapolis Railroad
Co. V. Peoria iind .Pekin Union Kailwav Co.. 132 id. 501; Harvey v^
Aurora and aeneva Railway Co. . 136 id. 283; dodsohalck v. Weber. 247
id. 269; People v. Harrison. 253 id. 625.)" ~
iL^souffi oaj-
it 99UBH ni b^rlerai
. ■■"'£
-••aea •£ •- ©J** '*o su^ei'ttt ^.tnoo .tost if)
ii
on
to
tfi f>
Vi
•tt3i
The cause of action, the subject matter and the parties
being Identical, the Judgment oi' tais court in case iso« 37V96,
al'l'incing the Judgment of the County court, ic an absolute bar lo
the prosecution of this writ cf error ^nd tne laotlon xo disa^ise
earue is, therefore, allowed*
In any erent our Supreme coux-t ii. an opiiiion filed at its
April, 19 36, teriu, in The People ex rfrl» Jp^xn u« kuech v. Jrank
^■otwas et al, ^ docket £o. 22645 (not yet puuliB.*ed) , in holding
that a contesxpt case sir.:ilatr io this is not a orix&inakl proceeding
and cannot be reviewed by writ of error, said:
"Plaintiffs in error, who were judges and cierjcs of an
election held in Chicago, fJov«taber 8, 19 32, were found guilty of
contempt of court by the county court of Cooic county, whicn iru-
posed various senttftnoes on the different parties. The citation was
issued and the proceedings had pursuant to tlae statute (omitn's
Stat. 1933, chap, 46, art, 2, sec. 13,) which provides for the sum-
mary punisiuiient of misbei^avior by judges or cierica of exection. liie
Judgments ?>gainst the plaintiffs in error have been al'firmed by the
Appellate Court for tne Jj'irat District and a further review is
sought by this writ of error.
"The atcitute under wuich the plaintiffs in error vrere pun-
ished provides, in substance, that Judges and clerks of election,
appointed as therein provided, shall be coiiiaiisfcioned by and become
officers of the county court, 'and shall be liable in a proceeding
for conteu$t for ai^y iiiisbehavior in tiieii office, to be tried in
open court on oral testii^iony in a suriiHiary way, without formal
pleadings, but sucii trial or punieiimfcnt for contexiipt of court enali
not be any bar to aiiy proceedings against such officers, crip^inally,
for ar.y violation of this act,' * - *
"In People v. Jilovsky, 534 111. 536, we held that a proceedk
ing pursuiint to u citittion under 'che foiegoing section of the Uity
Election act, was net such a criminal prosecution as was contemplated
by section 33 of article 6 of tiiy constitution, requirin^^ that
criminal prosecutions be carried on in the name and by the autr ority
of the People of the State ox' Illinois, In the sauie case we re-
affirmed our holding that conteiupts are not crimes, within the mean-
ing of the etatute^def ining ruiadeiueanors, ( citing i^eople v. yanciarf.
supra (Sll 111. 622)) and in People v. Vhite, 334 111. 465, we held
that a conteiupt under tuia act could not be said to be a crijuiual
oonteo^t, as that term was understood at the ooniiron law,
"It is furt'ier x,o be noted th;..t the acx expressly provides
that no punishment administered pursuant to it? terms shall be m
bar to any criminal prosecution v?]ier*? the same fucts constitute a
crime, ^rtxerc-ore, the pro-vision pemits punisii^ ent for 'any ris-
behavior in tiioir office, ' ITaie could include tiany things not
criminal in their nature, such as boorish incivility to voters ?ind
many other acts reudily conceivable whicn would not amount to any
form of crime, Urjon reason, as ^ell as authority, we are of the
opinion that t:;is is not a crif.^inal case wit-iin the ir^eaning of
section 11 of article 6 of the constitution, .%n^ that we have no
Jurisdiction to revierr the Judt^iient of the Appellate Court by
Writ of error."
•♦j> -' 'I
i-.^i>-:'.:
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.(i»^'l1fi« SWOi'"- OCT
tail's
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-ax
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October 14, 1935, a motion, vi;.ieh was alee reserred to
hearing, was filed in t>euall of tho oonteomors by their counsol to
strike defendant in error** motion to diauiiss this writ cf error
becauee of the irregularity and insuffioienoy of the service on
their counsel of the notice of such motion. It is auffioient to
state that, eO. though service of the notice of the motion was
Irregular and did not coKiply with the rules of this court, counsel
for plaintiffs in error waived such irregularity by responding to
the notice in apt time with counter suggestions and with the
instant iootion to strike defendant in error's motion to dismiss
the writ of error. The motion to st ike is therefore denied,
WRIT OV BRKOR DISkliiSfiD,
Scanlan, P. J,, and Friend, J,, coiicur.
oo «olva5e siij lo 150ns xoJtTtijaai fens i{*ix»I*s«TE'Si ♦seW Io 08Jjsd»<f
ftBW noi*om arid to acJtct'oa sii^ to eaxy»»8 jcigisoilij ie ,#e£ii- *#^,*a
I*»8t-tjjC0 .^liJco aiixi to u9liJi exicr rlcTiw ^J^'^^*© ^0« ^J^' ^^i* *t»3.XW8»'s*£l^
38409
THE HATIOITAL BABK OF THB BSPUBLICy
ete.»
Conplainant)
T«
JA3ISS £• SWSHBT et al*t
Defendants l>elow»
HKARLBS B. BARTL3Y,
Defendant and Appellant «
T»
PAUL CORKSLLf as receirer^
AppA3»«*
APFISAX FROM
SUPERIOR COTJHT,
COOK OOUHTY.
8 5I.A. 5 95"
MR. JUSTICE SBLLIVAH DSLIT3RS33 THE OPIUIOH OF THB COURT.
This appeal hy Charles E. Bartley seeks to reverse an
order of tlie Superior court of March 1, 1935, slloriing certain
fees to Paul Corkell» reoeirer, and his solicitor en the jp-ouad
that sucH fees ars grossly sxoessiTet
Proceedings were brought to foreclose a first xiortgage
on the premises known aa 5000-5006 Drexel Boulerardf Chicago*
Prior to the entry of the order froa which this appeal is taken
the period of redenption following the sale had expired* Bartley»
a defendant in this oause, owned approximately 85^ of the honds
upon v;hich the foreclosure was predicated and owns approxiaately
&5% of the deficiency under the decree entered pursuant to th«
sale*
One Murty M* Fahey, who had on IToYeober 28» 1928» heen
appointed reeeirer of the property inyolredt filed his first
current report Hoyeaher 17, 1930, showing that such property
QOhei
66S.A.I2 8^
iJCAm)
t^KsIXsqqA 5iij8 ixia&ne r
, serines. -.t na tkLIl.JL-tOD j;UA'a
* e af:Xs>qc[A
• T:-KJ00 aET "^O EO 1151^0 E:
IIAVIJuLUa §t)If(^l ,HK
no TOJioiXOf) e
• dB'O'^^ ,bX£V9Xj;oe X&xffl'xcr aooa-OOOC a,£i £c«FO*ij£ a^Rioeiq srf? no
,-^tiX4a*»a .be^iqx* bail 8X«e sttv' eitiwoXXol fiei^qine ^» t lo fcoi"xo<i eiii
ebiiod 9il4 to ^8 ^Xd^eoJcxo'xqqB btuwo ,0buao al^fi^' ni ^nsbrtsteb «
• eX.««
r.e»<J ,C&eX ,8S ledneToK «o barf oriw , ^Oif o*^ ♦?.{ \;rftiiM SJiO
*Bii'x aid b»X11 ,b©TXorni ^*^0qoxfi eriJ io ^tsriftofti bej^nio^qa
-2-
was iaproresi ivlth a three-story brick building containing t-welr*
large apartments reaodeled into sleeping and light housekeeping
rooms and that he had on hand ae receirer a balance of i'4»120*78*
March £:8« 1951» an order wae entered appoini.ing ir'aul
Corkell Bueceeeor x^eoeirar.
Kay 15, 1951* an order wai? entered dirocting j''ahey» as
recalTer, to turn over to Corkell, his suGoeBBor, $5,636.78j and
further directing Fahey' s discharge as recelrer upon auoh payment*
Pahsy v?aa found to be short in his accounts to this extent and
his surety thereafter paid Oorkell $4,934.49 on account of this
shortage.
Approximately |;9,000 collected during hie Incumbency by
l''ahey ifae turned over by him or fo- his account to Corkell. The
following suHuaary of the six current reports made by Oorkell ehows
the periods corered by aame as well as the rents collected by hla
and the amounts allowed and paid aa fees, respectiyely, to him
and his solicitor <
1st report
Jan. 26« to June S» 1931
2iicj report
June 6» 1931, to Jan-
uaiy, 1032
Srd report
Feb. 1st to July 31,1932
4th report
. ug. 1, 1932 to V.ay fM,
1933
5th report
May 25, 1933 to January
e, 163 4
6th report
January '0 , 1034 to June
18, 1934
The firtst five current reports of rf^ceirer Corkell were
approved by the chancellor cind the tllowancec for fees ap above
indioatad ordtdred Aithouc objection*
fhea hie sixth current report Aas filed Juno 22, 1934, for
"Hents
Collected
He(
reiver' s
fees
Attorney* s
fees
^ 8,013.7i
-
8,507.70
$2,000.00
12,000.00
2,400.00
125.00
125*00
2,0O0.0C
50.00
100*00
1,«83.40
100.00
100*00
l,619.ti0
••MM
» •> *
?24,424.36
W
,^n\oz
^2,i5ii5.00"
airi* ^o J^HWe
;>.*«§e»^ IXajitOO bJLi;(
"Tscffffifoni niri sci'ir
00, sax
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ts^.'ei X
OO.OOOt
oo.asx
oa.ooi
avn;.v'-
V,V.v<,o
j'xu^ioiXoa fixii Ijr3
d"ro-i9n JaX
JaX .cTs^
iJ-XOQ
0^,'^8<*»«X
•V*r Ilfi^tor' ~;-rl'-,rj' -: "io al-xo:
fOl ,^r*:ei t^C eiurX btl
-3-
the p«5riod above ehown, il recited generally scrriceB rendered
"by the receiver and his eolicltor and prayed for the allowance
of fees. Objections were filed to this report "by Bartley whicli
recited "that the recftiyer, since the date f his appointment,
has collected aa rentals the gross svim of not in excess of $23,000>
excluslre of the amount reported in the sixth account, and has heen
allowed, together -with his solicicor, ftaes amounting to ^4,600 tr
an .-xEioimt oqual to 20/» of the gross collectioriK, and io, therf-forep
not sntitled to any further eompensf tion."
The recelTer*8 srarenth and final account anri report y/aa
filed T;ec?mbi3r 7, 1934, showing groer rental oolloctionG of
J^l»497»37 for the pericd fron June 19, 1934, to the date of the
report and praying for the allom.nce of R4c'ition?.l fees in the
acount of 1^50 each tr> the :r' ec^iiTer and Ms solicitor* Cupplemental
objections filed by Bax'tley to Corkell' s aevfcnth arid final report
and to his dlfschargo as receiver alao renewed his objections filed
to the sixth report, a.nd arerred thtit the fees therotoforc allowed
the receiver and his solicitor under tho seeorj-r?, third, fourth
and fifth current reports were axceapive in tiint thay exceeded 20j{
of the gross rentda collected.
It will be noted that the gross rrmtalK actually collected
by Corkell, as sho-vm by hl^< e.CTen reports, a^iounted to ^25,921.75,
and that exclueive of the •'**250 each allOTUsd the receirer arid hie
attorney ps fees by the order r.pproTing the eeventh and iinal rtiport,
they hr.d theretofore been allo-wed fees afegr tgat ing ^4,600 under thi
second, third, fourth and iiftifc cui'rent reports. V.hile it is true
that Oorkell accounted for almoBt 4^55»OC)0 of rent collections* about
|9,0GC of that amount repre&snted rente oolleotad by fahey, which
vi&s turned OTsr to Corkell as hia aucceasox. I'he record also dla-
olosas r^hat ooiamenciag with ifoyeaiber, X931> the property wae operated
on a net leaae, whloh necess&rlXy rendered the reeelrer'a duties
dan
t t
• •-oi'iu'vi oi X&x^.:. G y:^
?SU8
tb eifC oj bns
dititol
.ber
- 'to
.X Jorui
lees arduous* It ia suggested that Corkell's solicitor also
a«ted for l^aheyt in isvhioh oapaoity lie was allowed no compensation*
That faot should and can have no 'bearing on the fees allowed hiM
as Corkell* s solicitor*
When Bartley's objections to all the receiver' a ourreat
reports » as well as to his final report* were called for h&axingt
the following oocurred i
"ttr. Smith; May it please the Court, I represent Gharloc
S* Bartleyp whoa your Honor will recall is the owner of nore than
80.^ of the deficiency decree heretofore entered in this cause}
Tarious ohjeetlons were raised and filed by ny client frofi time
to time to the Accounts rendered "by the iieceiver, particularly to
the fees charged and allowed* We are here this morning to state
that suLl objections haje been disposed of without rac.uiring tho
tise of this Court with the exception of the objections raised
to the fees allowed to Paul Corkell, as KeoeiTer, and to Joseph
H. Hicolai, as solicitor for tho Receiror. We would like bri'^fly
to be heard by your honor on th3s<3 objections*
*Mr. ^Ticolaii Your Honor, this is the case in which wo
hare all spent so much time. ^A'e believe that the fees allo7?ed
are reaoonable and that Ihe final account should be approved and
the Receiver discharged without further delay.
"The Courts Aa you know, this case has already required
a great deal of my time. Mt. 3mith, you have not been in this
case from the beginning and you may not be informed asto the
amount of my time and of the Heoeiver's time and of the Receiver* »
solicitor's time which has been required. Chis Court took notice
of the fact that the first Receiver appointed in ihia case, Mr*
Pahy, failed to perform his duties; that thereupon and upon tho
objections of Mr* Bartley, a great deal of time was consumed in
straightening out this Heceiver's accounts j that Mr* ^icolal,
Mr. Corkell, Mr* Bartl^ and his attorney have had very frec^ucnt
and extensive hearings before me in this regard; that subsequently,
as a result of these herrings, approximately 16,000 who recovered
back from the Bond ing Company covering the first Receiver and Mr*
Corkell was appointed in hia Eitead ; that l!r. 'hartley waa allowed
some '■^2,0'jQ at thc^t time for his attorney's fees covering services
rendered by his attorneys during these proceedings; that, ^incc his
appointment as x^eoeiver, Mr. Corkell has, with the greatest dili-
gence, sought to collect the maximum income from thi;5 property
and dsalt with a difficult tenant with respect to whom he had a
number of hearings; that he has served as rsceiver over a period of
four years, and that during that time he was J]hasJ presented seven
detailed accounts, which in themselves, required conaid-;irable time
to prepare; that objections were raised to many of these accounts
and that there were many continuances snd hs rings upon che saiue;
that Mr. Corkell and his attorney, Mr* Nicolal, have spent oonsid-
erable time with you in conoid-ring ilr. Bartley' b cbjcciions to
these acooiinta. Countless hours of time were consumed in court
alone upon th'iBe varlotis he-rings by Mr. Corkell, Mr* J^loolai and
Mr* Bartley in my presenoe, and that in addition time much pretrter
than that has been spent cut of the presence of the court, not only
In managing the property and dealing with a difficult tenant, but
Mijs vdiioiXoa a».ri-?fro
,ii-.
3£;oa&t« eaM
beaisit R«oi;?oot^'^ 91^^ ^<* ifroiJqooXQ edi tiiissf disuoO ®iii4 lo ©axjtj
jljjryou oi fexte t's&vi£-o.*'}i ae ,XX'J5iioO Xjfcfy^i o;? fef»reXIj3 »«e^ 9if* oj
icXl-l7<f eHil blucvr sV,' . 'j:»yXe;0«>K »j^;f xcl -xorfl^iXae as ^XjsXcoife .H
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ffi bOfiiiJtsiiO 0
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if ,■:; nd Jt-v' iXj
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11.. i ::^J^^ ^r4.tX-<s i) -taa x**»qfO^<i "^d^ S^' ' '■ ^
-5-
in the preparation of the accounto and consideration of the ob-
jections* The Court has taken notice of the aaount of time and
labor consume'^ herein, much of vjhioh took place in the actual
presence of the eourt*
"It is the opinion of the court that the fees allowed to
this date are reanonahle and are earned fees, oonanenaurate with
the amount of tine and labor conBumed* oince the Court has personal
knowledge of the extent of these serriceaf there can he no justifi-
cation for any further hearing upon this question of feee* and if
that is the only objection now ponding, it is my duty to approre
the final account as rendered* together A^ith all past fees allowed*
"Mr. Saithi I realise that I recently entered this sa8e»
having bean substituted for fonaer counsel within the last six
months. NeTertheless, if the court please, I aak that these fees
be reduced brjcause they are in a proportion of approximately 20;j^
of the rentals collected* There is no v^ritten teatimony in the
record to support the fees allowed, and my position is that a
reoelyer, as an officer of the oourt, stands in a posicion of ser-
Tica and cannot neoessarily be remunerated in proportion to the
amount of work he has performed* In short, the inoome of the
property ought to form a liaitauion as to the amount of these fees*
''The Court* I agree with you that the income of the property
is an element to be considered in fixing fees* However, it is my
holding that the court has discretion In the amount of fees to be
allowed and that all of the eleiuents of income, time and labor must
be considered together* In view of my personal knowledge of the
latter, as I have reviewed it, I consider the fees reasonable and
that no furthei hearing could be justified. If you v/lll prepare
an order, I will enter it, approving the final account as rendered
without taking teetimony and dlscherging the receiver*"
Thereupon the chancellor entered the order appealed from,
of which the following portions are pertinent*
•♦It further appearing unto the Court that no proofs have
been taken with respect to the services performed by said Beeeiver
and his coiuasel as basis for the fees allowed to datej that no
hearing has been had before Master in Chancery Sidney S. Pollack,
to whom said cause was referred on the 7th day of December, • . '>•
1954; that said parties desire that that portion of the order
entered l^ecember 7, 195^, referring said cnuse to Master in Chancery
oidney S* Pollack be vacated and that the question remaining with
respect to said fees shall be submitted in open court, * -* * and the
court having examined the various accounts heretofore filed by the
said T^eoelver and the various orders allowing fees from time to time
in connection therewith and the Court having examined the objections
made thereto and after having heard the testimony of all parties and
being fully advised in the premises,
"The Court IHurther Orders that the objections of the said
Charles S. Bn.rtley filed June 29, 1954, ani ¥prch 1, 1935, be and
the sfijne are overruled; that the Sixth Report and the Seventh and
:^lnnl Report bs filed by thfi asid Paul Corkell, as Receiver herein,
be end the same are hereby approved*
••The Oourt IF^urther Unds that the fees heretofore and herein
allowed to Paul ^orkell, Recsiver, and his solicitor, are reasonable
B ■
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and the Court allo-ws further and additional feer to the snld
Paul Corkell, as Receirerj in the amount of Two Hundred -''ifty
Dollore (5'250,00) and further and adc-itional fees to Joseph
H* STioolalf as his solicitor i in the asount of Two Hundred Fifty
Dcllara (:|250.00).
"It l8 yurther Ordered that the said Paul Corkell be
and he is herehy discharged from further duties as such IleoeiTer*'*
Defendant Bartley contends that the aggregate amouni: of
fees alloired to the receiver and his attorney is excessive and
disproportionate to the gross rent collections; that a rsceirer
is p.n officer of the court and a public servant and that the compen-
sation allo-\i7ed to him and to his attorney » as veil as to other public
servants » cannot he fixed upon the sole hasis of the natture and ex-
tent of the services rendered so as to appropriate an unduly larg«
should
portion of the fund 'ffhich it/be the alo of the receiver to conserve |
that since the extent and nature of the services of the receiver and
his attorney entered into the oompensation allowed, he should have
been compelled to offer proof of such services upon Bartle^'*' s ob-
jections, the personal knowlsdge of the court, together with the re-
ports of the receiver, furnishing an insufficient basis for the allow-
ance of fees aggregating 20fa of the gross rent collections.
Vxe receiver* 8 theory is that the court had personal knowledge
that the services were extensive and diligently performed and that the
chanoellor's action in fixing the amount of the fees approved did not
constitute an abuse of discretion*
The chancellor had full power and authority, when the final
report of the receiver waui filed, to investigate and determine the
correctness of all hia accounts, including the allowance and dis-
bursement of fees, notwithstanding previous approval of reports and
accounts for parts of the period of the receiver's administration.
( Standi sh v. Musgrore, 223 Til. 50Oj Steele v. T^uprecht , 147 tll»
App. 646.)
Bartley was denied a hearing on his objections to the fees
X®n0/«
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-7-
allowed the receiver and hia attorney, and such fees were approTod
BOlely on the chancellor's personal recollection and knov/ladge of
the seryioes rendered and his consideration of the recelrer's re-
ports. It is true that the receiver's several reports included
statements of his receipts and dishurseiuents and a general state-
ment of services rendered by him and his attorney was made in the
reports wherein an alloTranoe of fees was prayed > but the reeord
does not disclose any itemization of the time devoted to the re«-
celvership or the character of work performed by either the re-
ceiver or his attorney*
We have carefully examined all the oases cited and many
others > and while the rule is established in this state that an
allowance of fees to a receiver and liis attorneyt based wholly
or in part on the personal knowledge of the chancellor, will not
be disturbed unless it is unreasonable and axoessive or exhibit*
a manifest abuse of disorotion by ths trial court, the rule is
also firmly established that a party in interest, who interposes
timely objections to the allowance of fees alleged to be grossly
excessive, is entitled to a hearing on same* ouoh a hearing was
denied in this case*
But, regardless of all other issueB, Bartley insists that
the paramount question presented for our determination is* Bid the
trial court abuse its discretion luider all the circumstances of
this cat e when it allowed the receiver and his attorney fees
aggregating 20^ of the gross rents collected by the receiver?
That the question of fees in this case M^as decided by the
chancellor solely upon his onn personal recollection and knowledge,
that defend^Mit Bartley was denied a hearing on his timely objections
to fees theretofore allowed and eidditional fees prayed for, and that
the receiver did not and was not compelled to submit proof as to the
e2:tent and nature of the services performed by him and his solicitor
^v-
hf.-^f^Ti fi.
^<,f '.>»•
IX0or.
.'!:t
B«BO{J.
^.o^X^iiO': rjiu -^fitf axf. \Q !j^/ffl',y^-i-.^ eoyXT'i..,^ s^ii^ -.0 v-£«i..n Wifc wiitJJ-
are all oircuuetanoes whlehi considered with the disproportion-
ateneee of the amount of fees allowed to the gross income tram.
the propertyf sire indicatire of cm abuse of dlsoretion by the
trial court*
l^ile no means are afforded this court for an intelligent
and equitable determination of the compensation that should be
allowed the reoeirer and his solicitort inasmuch as there is
nothing in the record to show either the character of the i»ork
performed or the time devoted to it» it does seem to us that the
allowance of fees of 20^ of the gross rents collected is exoessiTe*
The Interests of all concerned » in our opinion^ will be
best semred by a full and fair hearing in the trial courts ^here
the receiver should be required to furnish proof of the extent
and nature of the services rendered by him and his solicitor^
the ohanoellor then to order just and reasonable compensation
after due consideration of all proper elements » including the
amount of the gross rent collections by the receiver*
For the reasons indicated the order of the Superior court
of March 1, 1935 » is reversed and the cause remanded with direc-
tions to grant a hearing on deferwiant Bartley* s objections to
allowances of fees made under the several reports of the receiver^
Corkellf and for such other proceedings as are not inconsistent
with the views herein expressed*
B2nniES13D AMD RSKAjmSD V/ITH DIR=2CTI0irS»
Soanlanf P* J«» and Friend* J*> concur*
38474
KELBigRT W. LOHCH,
%lb''^ '•^ Z^iW.j
STATS injTUAL LIFE ASSTJRJvSCS
COJtPAMt a corporation^
Appellant »
HARRT S. LORCH»
AppolleOi
APPSAL moU CIRCUIT
COURT, COCK COUm'Y.
285 I.A. 595
y
MB. JUSTI08 SULUVAir DELlYmniB THB OPIITIOH OP THE COURT.
By this appeal raepondent. State liutual Life Assuranoe
Company ef orceeter, MaseachusettB, seeke to reverse the judgment
of the circuit court entered after a trial de noYp without a ivajf
affirming an order appealed from the prohate court which granted
letters of administration to Harry S« Lorch, petitioner, upon
the preiumed death of hie brother Melhert V, Lorch,
The petition of Harry S« Lorch, filed ia the probate court
January 9, 1934, under sees. 20 and 20A of the Administration of
Setatee act (Cahill's 1933 111. Rev. State., ch. 3, pars. 20 and
21) alleged substantially that he was a resident of Illinois | that
oa or about October 3, 1926, Melbert W. Lorch, a resident of
Chicago, disappeared from his home, has not been heard of or txtm
since, and is presumed to be deadf that upon due and diligent
search and inquiry, his place of residence cannot be asoertalaed
and that hie last known place of residence was 4914 Drexel boulevard,
Chicago? that Melbert W. Lorch left no last will and testamenti that
he left a personal estate not to exceed ^11,000 in life insurance
Trjtuio moss:
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B***: 'virtetf n»e<< *oxi > -lor' alii aot^k bsTdftti-iBsib ,os''olrf0
iKttj^ILib bTB (Mib no^t «Mb stf ow ^ftautfeetq &i: j&rb «»oai«
iMli«#T»»8iJ! 6<f ^onnfo oaRel>xee7 l:o oo«Xq; siii ^X'^xopnl bfui i1ot«9«
MareXtfOtf X»x»it[ ^XG^ sav at; Iq cvnoad tnmjf. ^lA iaAt ta«
tBdi \iD9M»imm* btta XXI. f ^e-X c: . . fxt'XdK ituii {os/^oXifO
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-8-
oarri«d by hia irith certain dealgnated life ineuranoe conp&nleSf
including the New HIngland Mutual Life Insurance Company» The
Squitaljle Life Assuxfinee Society of the United States and th«
appellant in this cause) that Melltert W« Lorch left hia surTlrinc
as his only heirs at law and next of kin» Harry S* Lorchp a 1»r4th«r»
and ilma B» Morrisf a sister | and prayed for the issuance of
letters of administration to the petitioner*
Say 22 » 1954 i the probate court) after a hearing^ entered
an order as of May 19 > 1954 » granting letters of administration to
Harry S, Lorch in the estate of Melbert W. Loroh» based on the
presumed death ef the latter. Separate appeals to the oirouit
court were perfected froa this order by the appellant and the
ether two respondent insurance companies heretofore mentioned*
Althotxgh not consolidated f all three appeals were tried together
in the oirouit court and similar judgments entered in the three
oases* Separate appeals were taken from the judgments of the
circuit court and this appeal has been consolidated for hearing
in this court with ease No* 33433} the appeal of the Hew UiUgland
Mutual Life Insurance Company*
The undisputed facts essential to the determination of
the issues InYOlred are that Helbert W* Loroh was thirty- three
years old at the time of his disappearance OctobPr 3» 1926» and
a bachelor; that he had theretofore been a normally healthy and
happy young man; that he was an onion broker on a large scale
and president of H* ^* • Lereh» Inc., 1421-1426 3olon street^ Ohicagoi
that he enjoyed a good reputation in his trade and was regarded as
a "square shooter f" that he had maintained a home for his mother
for ten years and at the time of his disappearance resided with her
at 4914 Drexel boulerard ; that in the latter part of September and
the early part of Octobert 1926 > his company was heavily Indebted
to *5">n.piff.£-. r -'x:i Tol Dov^';:c- ^^<■ t'^if^xa B tailtc^ ^S ^B;Xi bPQ
&rf3 Co b83«tf «£loT0J .W ^terfl&'S ^ ®#fi*a© siitf Ki iJTO-i . x-'^^'^H
,hBa9tin%tB. *tolo;}3T»if eaifl^^teftt) dOiae«L"sf?i ^n»fenoqa»i o«r* Tsri;to
estild .•tsfflt^hut xsXiai- f<i
»til-norf '■ :.,:::• air- .•sf^tio
bft: . ! . rt
.-^i^' \:.^-. -'■ .1- ■ oXtilojetf A
xaiiioA 8iil zot Muod m t>t*attuttiism bad •d #i3ii;} "It^ioorfa sia&Pei" js
^l»d lU^ir . eoci^1«&cl(i«a2b aiil to ©aj-i 9d* $a bflw a^fl®\: «ed tot
«X »xL> x/jTf»XiJOrf Xexe-w; MO^ ?«
-3«
to other merchants and to baake; that on Saturday Ootoher 2,
1926 > he went hy train from Chicago to Cincinnati > Ohio» for th«
purpose of raising money to enalile his firm to continue its busi-
ness operations! that iVLfred Jacob80n» an employee of the Lorch
Companyt adranced him sufficient funds to make the Cincinnati
trip and drore him to the railroad station in an auto owned by
the company f retaining the car for his personal use; that Loreh
telephoned Jacobson Sunday morning October 3* 1926» from Cincinnati*
and told him that he ^vas returning to Chicago that day on the day
train* requesting that the auto be left for him at a designated
garage on the south side; that he usually remained in Chicago*
transacting business from his off ioe> and that such trips out of
town as he did make were nerer for more than a day or two; that he
returned to Chicago* October 5* 1926* and secured the car from the
garage where Jacobson had left it; that sometime after his return
he went to his office and wrote reoonsignment orders on certain
cars 01 onions in transit and left his valuables* including a dia-
mond stick pin* a diamond ring and a diamond watch* together with
eertain insurance policies* on his deski and that no irregularities
were found in the business of the Loreh Company* of whieh he was the
head* and no shortage of that company's funds was discorered*
It further appeared that on Monday morning October 4* 1926*
the auto heretofore referred to was found by the polloe at the foot
of uinoy street and the Chicago rirer with its starter broken and
Melbert W* Loreh* a hat* topcoat* trareling bag containing the wearing
apparel he had taken with him on his trip to Cincinnati, and a six
or seven foot length of window sash oord on the rear seat of the auto}
that a letter to "Speed** (a nickname of one Milton C* Coggins* a
business associate of Lorch) was found on the front seat of the oar
next to the driver's e*at| that on the same morning Jacobson found
Lorch* s jewelry and the insuranoe policies on the desk in Loroh's
Bit -
, l;J«Hflia«i j mait «d£iei ,w x'^fcjo.: ^laiaiaai ^.Bbewv aoR«f<?a«X. b®BorfqeX«i^
^fc eil> '?<v/ «il i&di atlif blod 6na
o-^'tjxr
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9d .
9ii
( ■s.oiiu b£sotti
odoO jg-flimofli \;etmoM no ;irji3 fo^T:«©<iii.i5 -rsifii
*o»» e£ti Xoci «rf^ -^cT bni) , - si!*
■■■in ttititiai9ttl0 oi qlrt mii no «.. ^ ®jr( X»rr«qqja
%iuu Mf^ 1t« ^«»s rt«c« eafi ft. .*.*ii8 vsfojbcir lo Hip/i^^X i ot ceres lo
i\o »tii \o imta inoi'i ztAa no bouo'. a^w (iloiv. -zloo-.e- 3?. •orilaiicf
'jCiOtOtI
-4-
priTat« ol'l*loe:| thai; Jacobson also found tlxe telegraph orders
written by Loroh, apparently oa Sunday nl^jht, addressed to Yarlous
railroads » rticonslgnlng cars of onions to different peopls to whoa
tlia Lorch Company owed money; that the police dragged the rirer at
the foot of v^uinoy street en Monday* ootober 4t 1926» the day that
the oar was diBC0Tered» but did not find the body of Loroh; that
Tuesday, Ootober 5* 1926» thiee notes in Melbert w* Lorch* s hand*-
vriuing on atationery of M« ^' . Lorehf Inc., one addressed to Harry
Loroh, one to his mother an<i one to a Mr. agner of the Gowmerae
Trust and Sarings Bank, were turned orer to the petitioner; that
thede notes ^ere found under the front seat of the auto at the
garage where Jacobsos haS taken it to hare the started repaired;
that Harry 8. Loroh employed a direr vrho searched the rirer bottom
all daiy Wednesday, October 6, 1926» for a blook or more in each
direction from tiuines'- etreet, but did not find the body; that no
further searoh was MRde for the body In the rirer; that Harry S*
Lorch made inquiries of the pelioe as to -where^the body could go;*
that he directed then to notify the lock-Jceeper at Lockport, IllinolSf
to be on the lookout for the body of his brother; that the body did
aot turn up there and has nerer beeii round; that the police sent out
a teletype message containing a description of Juoroh; that Harry
Lorch for about two years after his brother* s disappearance made
persistent in^^uiries among mntual friends and buulness assoeiatet
of his brother, both in Chicago and other parts of the country v/here
his trarele took him, in an endearor to ascertain hie whereabouts,
wi he thereafter made such inquiries when and whererer he thought
they would be of any avail; that in frequent talks with his mother
she adrised him that she had heard nothixig from or of Melbert; that
/'lima Vorrisy Melbert W» Loroh* s sister, made frequent inquirlei
among friends, relatires and business assooiateB as to whether er
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OH
: Jpfiadnoo d^sseirf" •Q'cJsXs* Ai
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-loo^a^ «fe40i:;^au£i bxs;. j&vi».riiii tdiijaiii ^fiOJBfi
•1-
not any of tbea knew of the whereabouts of her brother* and they
all gare her negatlTO answers; that her mother, up to the time ef
her death, adrlsed her that she had heard nothing froa or of
Melhert; and that neither Harry S. Lorekg ^llaa Morris nor Alfred
Jacohsoa had seen or heard of Mellbert W* Loroh since his dis-
appearance, and haTe net seen or heard of anybody else who had*
The IllfOOO life insurance of Melbert W* Lorch was payable
to hie mother, Ella Lorch, as beneficiary* She died Becemher 24*
1931, and it appears that she paid the premiums on this inBuranoe
imtil the time of her death* Uelhert "^ • Lorch also earried 1100,000
insurance on his life payable to M* w* Loroh, Inc* rhis company was
adjudged bankrupt a few days after Loroh* s disappearcusioe*
following are the four letters or notes whioh Uelhert w*
Loroh left in the automobile!
"Speed I
Goodbye - old koy - I know you will understand*
Lovingly,
tfel*"
"Dear Harry i
Please hare no funeral - Just the Hahhi, you and Que -««
That*e my last request and plea.se stick to it*
There are all the insurance policies except one > on ay
desk - that one is in the N Y Life for <|1000 and beliere Hotter
has it* 'These I hare here amount to IllOOC in mother's faror*
The policies in the corp are also there* Thsy can
eolleet on |70,000 and a refund of premium on the one $30,000
that is less than a year old*
Mel**
"Mother Sarlingi
Please forgive what I am doing and do not griere over me*
I am going happily because it is the only honorable thing to do -
I simply cannot let those who have had confidence in me lose by
it and there's no other way out*
Your lore and thoiightfulnese hare filled my life to the
uttermost and after I hare gone please bear up and remember you
hare two wonderful youngsters in Hermine A Junior to take my
place*
A last big kiss and all my lore*
Mel*"
"Xr* Wagner I
Sorry to do this but there is no other way to keep you
and my other friends from losing money - and since it vrais through
your confidence in me - no step is too great to aroid abusing you*
The insurance money with our other assets sheuld corer
r
•£ir«^q s«ir ifoitJ: .* ;?i»dX»i£ to 0wi«tiiy®fll 0li:X 000-|XJ|| ©ri
.or.s'W9tik nMi rxo affuaiaioTij Oil* feiaft ©da «....^ ,...,;..; j, -- .-... -t-^.y^
• oixA^srt^tMu;
;ro- "?crr>i - ■ otf bXo - ©^^dhoo-S
• — bUO tma SiPX «irft
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i^tf •eel Mr iil ••nut —
; ■ -X^
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.. : all
'•X»M
rrJY nj-^ rv
>80AX^
. Tit*
everything - LlndstroM our auditor can glre you the figuras
on drafts dus» outstanding a/c pay* and our various inrest-
ments*
v/leh I oould put into words ny gratitude for your
many kindnesses and my regret that this step is necessary to
do what is right*
Sinoerelyt
Mel."
The respondent inauramce oompany ooateads that the evi-
denoo fails to eatahlish i;hat the diaappoaranoe and abaenoe of
Melbert W. Loroh are unexplained » fails to establish that due and
diligent searoh and inquiry have heen aade for him since his dis-
appearanoe and fails to ostablish that Melhert W. Loroh is actually
dead* or» as a matter of law* legally presumed to he dead*
The petitioner's theory is that the eridenoo establishes
that Helhert W. Lorch disappeared on or about October 3» 1926>
froB his home la Chicago) that he has net returned therato since
that date J that due and diligent searoh and inquiry hare been made
to ascertain hie whereabouts* but without avail; that,* inasauoh ae
his absence is unexplained and has continued for a period of nere
thaA seven years* under the law Melbert W. Loreh is presumed to be
dead! and that the circuit court properly affirmed the order of the
probate (Tourt granting letters of administration to the petitioner
in the estate of Melbert !• Loroh based upon his presumed death*
Harry S* Loroh and his sister testified that it was their
firm oonviotioa that their brother Melbert had committed suicide*
However, beesuse his body was not discovered* it was impossible to
prove his actual death. It la insisted by the respondent that all
the circumstances Burrounding the disappearance of Lorch, including
the financial difficulties of his firm* the abandoned automobile
containing the letters or notes and his effects, the failtrre to find
the body and the large amoimt of insursuice carried by him, are fairly
and reaaonably consistent with its theory that he voluntarily wemt
into hiding to perpetrate a sulolde hoax for the purpose of defrauding
t^tar^kt fi£i ac% ©via ««> f©iii«*3 - itsve
,\X»5^o«**^
ulgix 9£ iiitlvr Ob
-sib aid foonxe ffiirf lol si)£aii n&sc! evBi^ ■^C^iif i, i- iifi^ lioiesa jaogiXlb
• b«e£i »cf 0? b»J0O8Stf '^XXiiseX ,»r-H iSnsi b as «^o ,&«»A
soi. benisr- ■ ;■ •- -aori alrf morel
dYOM to boi':r -If :,-fTi-.-- T'-v..- .rtsada aid
•xi»nv' ii-^e Ji wBiid beiliase* taJaia a-L^i mijs iiy- . .,£i£ii
• efeiojtDe to^tlflHoo baM iaooflc^i ^»i£d©'i«j xi^du i«ai- K4^i4©irft«o anil
odT cXcf2:-aoqi!r ' t , ".yovfoH
Bffi t>t;X»ci . O0AA7fiftqqaaib bat'O'iaws 3««rtt»*ai
•XlcfOKTodii/t t/6iiobn8tr« •«!* «anxt air Laioruinil •li^
*«j rl* tsiasH^ aijf hiia ••tfon to 8"».>i«I eric* :&«l0i,s*flroo
tX"*^' ' to^ri \:<^ &ftiit.'ac eofiirtu/eci: "io imsoaxs st^ijp.L edi has x^otf &di
-7-
the Insurance eompanlee. It Ib further Insisted that the facta
and oirouastanoes In eTidence offer a sufflolent and satisfactory
explanation for both the disappearance and the continued absence
•f Loreh* The eTldenee does offer an explanation for hie di«-
appearanoot hut instead of reasonahly accounting for his continued
abseneOf we think » rather » that> coupled V7ith his failure to return
home and his failure to eocuiAmicate with those with whoa ha \70uld
naturally oomirsunioato. If alive, it indicates a strong possibility
of suicide*
All the olrcuBStanoes connected with the disappearance of
Lorch were admiselble as ccaapetent evidence under the petition of
Earry S* Lorehf whioh was predicated upon the theory of the presuned
death of his brother, even though they tended to show suicide. Loroh
was a normal, healthy and apparently hai>py young B»n* He was on
affectionate terms with the meittbers of his family. He lived with
and maintained a home for his mother, to whom he was devoted* There
is no evidence in the record of irregularity or dishonesty in his
dealings with his own firm or others* H@ enjoyed an excellent repu-
tation in his business relations* Respondent's argument that it may
reasonably be inferred from the evidence that Loroh r«igned suicide,
went into hiding and continuously absented himself from his home
and the members of his family up to the present time, successfully
obliterating all traee of his whereabouts, to permit his relatives
and his firm to eolleet his insurance, is not convincing* The insur-
anee, of whioh his mother was the beneficiary, was hardly sufficient
to oompensftte Lorch for any such voluntary exile, evte though, if
and when collected, the same should be surreptitiously turned over
t« him, and the insursmoe payable to his firm oould have furnishad
no inducement for his continued absence, because in no event would
it inure to his individual benefit*
There is ample evidenoe in the record to show that sineo
rr -s^ujlifilt; Bid si <
blss9>r ori ssciffw i£;flw eaoii;^ d^lir eiaoinitot:
• o iiixw J. u ;^ !;
,»i>idlJU8 teojiidll dor ^ tXtfsiioe.£»0i
eoioxi alii «0'i\ "iXe^aiairi hsfrineeef?; \;Xaiio«r rtfe-.j^nlfciii 03 kI ir.av/
XXXu'^Bvaoou^ ;afi«6Y( Jraosi »di btus
-luani . : rif
rflv t -i"-;:? 7.r«r;j'ri.'Cc
"■•i^f^^.n^^cra^
OK
the dieappearsuioe of Melbert W. Lor eh October 3» 1926 » due and
diligent search and Inquiry hare been made to ascertain his
whereabouts and that ho has not returned to hie home since that
time. In our opinion i even though hie disappearance is explained »
that fact does aot orereome the preeunption of his death after his
continued and unexplained absence for seven years*
The major question presented here was before this court in
the comparatirely recent cases of Pier sol t. Massachusetts I3ut\ml_
Life Ins* Co., 260 111. App, 573 | Mueller v. Hancock Mutual Life
Ins. Co., 280 111. App. 519; and Forster t. Hancock Mutual Life Ins.
Co.« (Appellate court case ilo. 38158 - opinion not published.) Ia
^^^ ^ioyeol case the assured* s aoooiuits were being audited before
he disappeared and a shortage vas thereafter discoTered» resulting
in an indictiaent charging him vith the embezzlement of $lt742.40.
In the Mueller case the assured worked for the insiirance company
which was the defendant therein and wrote a letter to his wife
the day after hie disappearance admitting that he was ''about $200
short on my book." In the fforster case there was hearsay evidence
that the assured shot another man in a saloon; that this man there*
after died as a result of the bullet \?ound; and that In connection
with the shooting a police officer secured a warrant for the arrest
of TB^rster* who disappeared and remained away. It will Ike noted
that the reason for the disappearance in each of these cases waa
far more compelling than in the instant oese. Yet, it ^'?as held
tha&y while the circumstances may hare reasonably explained why the
a&sured in the respective cases left his home» they did not afford
sufficient explanation of his continued absence to rebut the
presumption of his death*
After discussing and distinguishing many decisions of the
courts of review of this state on the question, in giersol v.
Maosnchusetts Mutual Life Ins* Co., supra, the court held, p. 587:
bur, »ff^ td<;ri J*; ♦'•cfc.+oO disnoj: . */ ^-^ ^ fOfy.pT09qc.aa lb &xlJ
: wXijBbno" liw xioixlw
^aSTI/i 9di tot Oi ;:: /crOrlri ^iiJ :iJlw
bn^fOf s-cT XJ.J , , 0
♦i3i?««t) Bid to nolwQB«a»rtq;
tttOii ^iOU^i 6Xi.7 ^0 Ci^YITOt)
-9-
"An exaaination of the casee indicates that the pre-
requisites which >^ould justify a presumption of death are (l)
that the person whose death is in question has disappeared froa
his last known abode* domioile or residence) (2) that he has
neither returned thereto nor ooBuounicated with these with whoB
he -would naturally communicate if alive; (3) that inquiry taaa
been made at the last known place of abode of the persons who
would aatur.illy hear from him without obtaining information
indicating that he is alire* Out of proof of such material
facts a presumption of death arises as a matter of law, but
it is a rebuttable presumption whioh may be disproved by evidenott
of facte tending to show that i.he pa/ ty presumed to be dead it
alive* See Jones» Commentaries on SridencOf 2nd ed»t vol* 1»
sees. 285-2941 3 H. C. L«t PP* 703* 709, and see page 714."
In our opinion there is no inconsistency between the fact
that the evidence points to the intention of Lorch to commit suloido
and the legal presumption of his death from his disappearance and
unexplained absence for more than seven years.
In 17 C. J,, par. 7, p. 1169, after citing nuaarous authori-
ties of this and other jurisdictions, it is said:
"The presumption of death from seven years absence does
not preclude an inference that death may have occurred before
the expiration of such period* * * * There are some cases, however,
in which it Is said that there is no presumption of death until
the lapse of seven years, but as there were no circumstances in
these cases tending to show that deeth may have occurred at an
earlier period, they probably merely intended to hold that,
ordinarily, no presumption of death arises until the lapse of the
prescribed period and not to contradict the established doctrine
that inference of an earlier date may be draT.n where the circum-
stances are such as to justify it*"
Henry Blech, one of the attorneys for the petitioner, was
also the attorney for Melbert W. Loreh in his lifetime* It appeared
that on October 1, 1926, Blech prepared and acknowledged a power of
attorney for said Melbert W* Lorch* He was called as a witness by
respondent, and after identifying the power of attorney and testifying
ae to its execution by Lorch and acknowledgment by him stated that
aft r the lapse of nine years he was unable to recollect the cir-
cumstances under whioh the document was executed* During the course
of his examination the witness was asked by counsel for respondent
to relate his conversation with Lorch at the tiae the power of attorney
was drawn. Blech objected to answering on the ground that such con-
Torsation between attorney and client was privileged. The trial
.0>
er.
J op:
••aebi ail $1
»I .Xov ««6» 3d ♦sriXa
ban »oas'Xae4-^.&;>i.:a ciu uoat doB-i^ uiiL lo noi^qBuaeii^ IsBaX siU ban
• exss'^ naves riflM* sioa tot »©n«sd« h«ni:Blc{X9i!JJ
-/rrorfvU" aiiOT.ooron ^flit^to t9#'k« t§'- • -'Q « ♦ '. .
xbt^ i p. ao til oiiask^uiif i»dSo bnj-- o B^ii
e. »ilT"
■1 hir T'i' ^rf :>ois
1© xmroQ a besosIwoirioB feu* bexjwjsaq rioelP. ,asei tX taifo^oO i» #J«0
^ 8«9ii41w ii a« teXI 3«rXoiI hlaa rzol %9i»o^tf«
X«iti -flv/ iiiel-fo tofi x^^t^oiisi a&«(vd»«r aoiiaaaer
T1U» •<nit«nlta« ia aji«i»«r»« in ,«<w^t| v« ifarrltj 113 Til*
44t« « •«•« tfttM liy r«fi9«w^ wn% • w)»«r« tbe cimrt BAld at p« 4t4i
*Xr» Aaojr w^s tlM MtoriMj «( Iaw tmA l«c»l «<tYiMir of
Jfi09b Harris la hia llf«iil««t *ail all tkat «a« »«*14 »• klM Iqr
Karri* in r«far4 i« Mm «x<u!«utian •/ %Jm 4e«4»t aw! kUs latcation
in tteat r«sp4Mt» «ua im1<I tr«i aim ia tlMit ••j^Mii/* Mr* ^Mugr* ki«-
•«Xf» 0^4 ««%^ i« %9»%XlTimfi t« tluma d««lA«nti«a«* tiM %k» t«m««3L
f»r liaefewl Atin Barrlit al«« okJ«et«4 tlMir«t«» us»oa IJmi grmtmi tkmt
%lMgr w«r« priTiltt«*« o«w«iiii9nti«Hi« Ttwi «]bsaia«lX«r ««dKitt«4 11m
«Tldli«««t 0^4*"^ ^* <^1m t^J^atiMM* IS amrrtm yimrm iiiiwi«lf «IiTa»
liit«rpesli^S %h9 9^im9titm» eennii^l for oottplaln&nt.'f e»««Mid« tlHi
evl^cnvft «9Ul4 b« lMMlail«di)il«» )o>ut UMjr coai«ad £.iui.( IttaaaiMli a«
iMi is ioMt and thii inquiry is niw^ksr t« M(e«ri{i.iB« as bstwMn %hm
l«i^t»4» iiad4t kia vlXl %»i vlti} er'Uit«« elx^liKUig vioa^r )&is d««A«t
»Jtet 1» iAt«a4«4 liy Ms 4««4»> thu ruX« /or oxoladiair tJM ?Ti4<
d9«a not ftPi^* ?kia ^vition im^ 4upj;>or; ia ^aioooll ▼• Jaoko«
JMl* righto wM tatoJ^oots of eIi<Bi»fl« aad %fco<» eXj^&Uilag uadur U>om^
jpli titlrji , iJJMrsowo.t 0^ in e«igX^.»»|I7^M ygivi^fiw'' i» aoi r'-.*«rrii_.
& tto oXi»«t*» <^«»,»iM. 1» »*•• ofioiiU«witanr liispo8itloii» liM
rolo oooMi to bo otMmioo** (Itolios o«ro«)
toroli loft no will «ad it voulO oppORr freoi thm itallolso4
portion of ilM l8y«6tta«o of tlM j^^ootfioit opiaiot tlui%« of tor k&a
proMiiMd #ootli» tte **riclito oai iatitrtfato" of potltl^iop and hio
eiotoyt olaimiaiE aador ^s* boio« la coaflioi vith thoao of tiMi
of attorney
thktd forsoa rvctpoatfORtt tlw pririlo^o ^ttondoat apoa tho rolotioay
MKl «li*«t «ao tlMTofOYO "not row)V«4 by %hm olioat's 4o»tli»*
Attthoritioo aro oiioi by roopoadoat to tlM offoet UMt at«toamto
■ft4o Igr a tfoooaootf olioat to IdLo attoraoy aa to Mo roaooao for
oMitiag a li^^ laatraaoat draftod «?o aot priviioflo4 ooMamlofttiaao*
It io o«ao«<otf UMt tkio is tiio ralo* but tbo liuostioa askod tbo wl%-
aooo oao aat rootriot^ to aaoh otatoMoato aai tiM ali4«ot&oa oao
proparly oaotaiaotf*
PlaiatiffU aatfiapMt«d ori^oaao ao to tte aatorittl faoto
imp Miplo 10 fsiTo rlao to tho proMo^ption of doatk oo a »at»«r of
laVf oad iaa«autli as %h» rsoori tflsoleooo ao ori4snoo tbat ^Xbort
Wt Lorob is allTO tbo trial ooiirt propsrly affiraotf tbn orilor of
tbo probats coart grsatiac lotioro af aiiaiaistratioa ta Mmrr;^ S«
"^ ■■''■■■ ""'■ . ■-- ,.-- -w- • «r jt«fl^j iMifeHMimw «i #1
' '«lli taw tWAll
-11-
Lorch in the estate of hl8 brother Melbert "n , Lorch.
Other points have "been urged and conaiderod, but in the
viev; we take of this cause we deem it unnaceasary to discuss than*
Jot the r en sons indicated the judgment of the circuit
court is affirmed t
A77IBMikJQ*
3eanlan» P* J** and >'riendt J*t conour*
SMtT
In th« Kfttt«r of the S«t*t« of
iua.ixsy V, LOACH.
THX lifi^UZTABLX LIV3E A&W^lUMQJt
SOCIETY Qi tax aHiti£B iSTAXsa,
App^XluAt,
MAWSX 8* lAiR&SL,
i AJi»:
PEAL ^fiOa CIItGU2¥
fiOOI. COUiiTY,
! 285I.A.596
jui. JusTicx ;^u.ivAii najmnuKD xiii; oFXjixeii ojr ns goiiiit.
Bjr thtt ftpp»«l r««t>on4«nt» Bquit&bX* hifn AsBursne* Sveifttj
• f thtt Unittd 3t«it*«, ••$k« to r«Y«rac th« JudtfttttRt •}' Ui« Clrouit
«ettrt, «nt«r«4 iift«r « trlftl igjs nciyp vitiiout « Jury* Affirmittg an
or4«r Apr>«al«»d fron th« Pri»^%« oourt, waiob grantad i««>tt«r« af
▲dttinlatration te Marry £». I*»ri^, patiltiafiAr, ui^n tha pr^auaaA
daath af hia toratitar, MaXfei«rt v. jUQirah.
Iha o|»inlon In a»a« ho, 3d474 Is f U»4 «aii«irr<mtly with
thla ODlfiion. Hia f«kata in thi» chiM9 ar« i4antio»X wltn tha f«ota
in aaaa he, 3d474. 7h« judi^«»i rauderaA )>alatr 1a tli^at «:aaa trat tha
•aMa a« la thla sM4i tha anBM quaitidna ara praaaetad I'or rarlav. Ur
Aaalalan in that eaaa (4iffiy.flft y,,8^j^|tL>M^Ha^ M^^ AffHgft^flf VQ'^-»fltfly)
aontraXa tia <iuaatlena pr«a«iited lBL%Tm, a&4 far tha raaaona thara
atatad tha ju^j^aet af tha Ulreuit court in thla eauva aiflrwlac
\h*i arder af tha Frab«te court urantliig Lettera af Adftilnlatratloa
ta ttarry S* her^ la tha <iatata af hia Itrathar, italhart «. Laroh.
la affimad.
Aaaalan, P, J., aofl fri#a4, J,, coaaar*
ffti
:::m%. ■xA'^r^
965 .A.I
o
.SUiivivi .ir, tmuM
at.
r^'UcV, 7'rt'r ^:^ ;uii.:Tv:.
:...Uu?i zf^iTsut .aji
19 «»*hr»i *io'l i»4»laji»*t4 »'(« an^ijFiiau^ «!««:« futs^j' ^n^ «Jtili al urn wum
HiWMi tfaniwiA f\ii tiriinrh rf^rt iT onnffi't •««« ^«iij at ooititvft
.S^Mnrilla •!
.CttUXVU
>«iw««o ,.l ,iba»itt |>iA»
,<i
SS4M
In ih« ttAt%«r of th« X^t«t« of
Q&tirAMt, A Cornoratlen, .'''' ) jt s j
▼.
HAIUnC »• U&HQkt
.y
ixmi couinf*
Af>p«a«#. ) 28 5 I, A. 596
2^
im, Juarxos mnj^xvAK im.x^r.iiiB mis o]»uxos o» tm cmnt.
By Uiia ftpp#«kl reft|^on<l«nt, lt«« JS«gl«»&4 Mutual julf« insur-
Gireult ttoart, «jn%ttr«4 ift^fttr » tritUi Jj( n,pifp. vittiout « Jury, *f*
ftxmlag an erAmr appfl)&l«4 !>«« t^m Frofeot<9 Gourt, «hieh grMatttf
li«tt«r« of Admin 1 at rttt ion t« Mur^y 8. h^rmh^ p«tititm«tr, up«n tli«
^rmmmm4 <!«»%)% of kto ^rethos', MoXbert W. hereh,
fhlo CJSiuiio vm» e<»isoii4»t«d for h«suri&§: in thio ooiurt vltii
««ilo lEo. 9d474. £h« opinion in c%so £>o. 33474 is fiIo4 ooaour-
roatly vitli this opir>loii* fho f met* In thin oao« are Idotitieal
with tint f»oto Ifi e»o« ^o. 38474. thm i^idjmmit r«n<lor«4 bolow in
thot «as« wfto tho ooflMi »s 1» this «n<l Ihe oooo ^ueotio«« »ro prm^
•oato4 for r«vl«w. Qut d««i»i0ia In tfeat o*fto {i.oyrti t„ ^\f^^^ ^M^ffltii
lutfo .Aoottronoo «»o^p<irty) oontrolo tho ^tuootlono pr48»«Jito« horo, obA
for tlio r««oono tner« etatod tho judi^oni of tlio Uirouit eotiri in
thin oaoito nffiming; th« erdor of tJ^o j^rol»«to eourt grar^tlAg i.oit«r«
•f i4»lniotr*fcion to Horry s. X>ore)i 1» t^« 0»tAt« of hio Orethor,
kol^ort V. itoroh, io offinsod.
Aim mas.
ftoonlan, IF, J., omtf 7rl«nd, J., eonour.
■■■o *isti^M 9tii 1^ tt>tiM% till at
"aes.A.isss '
^i
.t
,.1 ,kll»l«Kt »ll» .rutoMA
AT A TERM OF THE APPZL^TE COURT,
Begun and helcL at Ottawa, en Tuesday, the fourth day of February,
in the year of our Lord one thousand nine hundred and thirty-
six, within and fcr the Second District of the State of Illinois
Present — The Hon. BLAIME HUFFMAri, Presiding Justice.
Hon. FRAMCLIN R. DOVE, Justice.
Hon. FRED G. WOLFE, Justice.
JUSTUS, L. JOHNSON, Clerk. 28 5 T A ^
RALPH H. DESPER, Sheriff.
BE IT REMEMBERED, that afterwards, to-wit: On
ArK 13 1936 the opinion of the Court was filed in the
Clerk's office of said Court, in the words and figures
following, to-A¥it;
GEN. NO. 8972. AGENDA NO. 35.
IN THE APPELLATE COURT OF ILLINOIS
SECOITO DISTRICT
FEBRUARY TEMJ, A.D. 193.6.
IK THE MATTER OF THE LAST WILI. AND
TSSTMIENT OF JAIvlSS LARKINS, deceased.
CITY TRUST AND SAYINGS BAIHC, as
::::xecutor of tlie Last V/ill and Testa-
ment of James Larkins, deceased,
Appellant, APPEAL FROM CIRCUIT COURT
KilNKAKEI] COUNTY.
vs.
NOLIA EYRICH, et. al.,
Appellees,
HUFFLIAN - P. J.
This is an appeal from an order of the court entered upon
objections filed to appellant's final report, with respect to claim
made for Executor's fees and attorney's fees. The appellant was
named as executor of the estate of James Larkins, deceased, in his
last will and testament. It accepted the tr\ist and acfeed as such
executor. On July 19, 1934, appellant filed its final report as
such executor in the probate court of Kankakee County. The report
contained an item of s?7000 as a charge to be allowed for executor's
fees and attorney's fees. Objection was filed to the report in
this respect and the probate Judge being diso^ualified to hear the
case, the matter was heard by the circuit court of said county. The
court found that the sum of $3000 was a fair and reasonable amount
to be allowed and paid to appellant in full for its fees and com-
-1-
CI OKI XII 10 T5IUG0 r^TAJJSITA SHT HI
TC.j.^Tcia (mopEa
.as 9 1 . . AiasT iHAUflssi
a5iiv .TJi.
, ;:-Lia acMiVAa oha tcuht ytio
-fii"a&T 5iiB IliW iBul edi 1o lo^fuo^
TSITOO TlUOaiO MCffit JAS^^A ,c|-as II scrcrA
,.IB .J8 ,HOIflys AIJCH
.aeftllagqA
iioqi; flsiai-na tisjoo sdit 'io la&io ns moil Iasqq;B ne al exjlT
Htlslo od- toecasT rftlw ^taocjei IbhIj: s^^^aBlleqqn oi belli Baottoeldio
BBM ttiBLLsqqti erfT .83©! a 'YemoJ'^rB baa aeel a'lod-yosxa lol 9JS)/ia
niti ai ,6eeBonef) jSiii^fiBj asisrst lo evtstp.s erfi- lo loJ-uosxa bq bessisn
dOisz a« 6o<rofl fins isisi& edt be;^qeoc . .irLoiminai bn& IlJtw J-aBl
SB &roq&i L&an ati osin J-nBlIegaif ,ivgGI ,01 ■^Ij/'G nO .a:od-x;o6X©
ttoct^i sriT .Y^-flucO 8S3lfl2lnBX lo *ii;oo ©rf-scfoig o^* ni i:o;txjo©xo tLpusi
a'iotuc9xe lot ijewolls &<f ot &8%-;rfo e a/3 OOOVv to ma^fj: hb ftenxBi^iioo
nl iioqsi QiU ct bslil; aew noltoetcro .aesl ? 'YenioJi-a f>jia aael:
eil^r i&exi o& bemisispetb gnistf egJbi/i; eJacfo^tg add- JbaB J-odgaso: a.i4J
8ffT ,x*aif oo blBz \o t-woc -tluoaxo sdd- y^ ftiBeri aew io^TJbjh axW" ,»iU3a
*nx;oaiB ©IrfsxtoaBoi 5nB ixbI b sst OOOS^ lo mue sxl.i *Brfa ^nwol 4iuoo
-ffloo 6nB 3©el BJi lot I.fj/1 njt .^nBlIeqga o* bin- bns bowoXIa erf o;t
missions as executor, including attorney's fees. Appellees filed
objections other than those directed toward the .)7000 item. All sex
of the objections filed were overruled except as to the above item of
executorfe and attorney's fees. The appellant has prosecuted its
appeal from the order of the court made with reference thereto. Ap-
pellees assign cross errors as to the objections overruled.
Sec. 133 of the Administration Act provides for compensation
to executors and administrators. Costs and expenses of the character
involved herein are incident to the administration of an estate, and
usually included in the credit allov/ed the administrator or executor
for such administration. In re: Estate of Thurber, 311 111. 211;
Sprinkle v, Forrester, 162 111. App. 45;, Mercy Hospital v. Wright,
Executor, 213 111. App. 634. It is customary for the administrator
or executor of an estate to employ such counsel as is reasonably nec-
essary to bring about a proper administration of the estate and to
wind up the business thereof. The law intends that reasonable fees
shall be allowed for such services, to be paid from the funds of
the estate.
There was approximately |70,000 of personal property administered
upon. While a proper amount for such items of costs of administration
is of necessity largely within the discretion of the trial court,
yet the la?/ permits an administrator or executor to employ competent
counsel and contemplates that reasonable fees ahall be paid for such
services. This co\irt is very reluctant to make any change in the
ajiiount as fixed by the trial court. Yet agter due consideration,
we are of the opinion that the sum of $5000 would be a reasonable
allov/ance under the facts as they appear from the record in this case.
Y/e have examined the cross error assigned by appellees and are satis-
fied with the ruling of the court in that respect.
The order and judgment of the trial court is reversed and
judgment entered her upon the claim of appellant as filed, for the
sum of $5000, to be paid in due course of administration.
Judgment of trial court reversed and judgment
entered here.
-2-
baii'i 3--a.i-xsoq-^' .aut^^ ^^XQaio^&B gnxti/Ioxii ,iorf'0o©X8 as Bflclseio:
SE '' .'jsd-x 0007?: Slid- .diswocf f)e^09i±6 eaodii nsiicf isri^o anoid-oetcfc
":o rnoif z ovocfB 9££;J- ocf afi &q30xe beLsJiiero slow ^ali'i enoJtitostcfo add- Ic
a;M bed'jjossoaq esd tnBlLeqqB sriT .aast e ♦x^^TocTd-jB £>njB gTOttroexs
-aA .od-8i9rfd- 8011919191 fld-JiTf sfejBBT d-ujoo grfd" lo isMo edt moz.1 iBsqqi
.balviiB-vc anoitoe'ccfo edt o& sb aio^i« aaoio ngieeB eesllec
rioJaB3n9<Tiiioo loi asfiivoKT fok noi&Bi^alatm&A edi to SSI .osS
i9cfoBi.Qf(o orfc"^ 'io a9sn9<[X9 £££6 a*aoO .eio^ffltd'aixiiffiDfl fens aiod-yoexs oc
bae ,e^Btsa hb lo noiosid-a inixabB ex^:" ' :'fi96ioni ois aiaier' •>—-,,-...
ioJi;o9X9 10 lOvtBiJainiisDs and" &9wci-.j:j .. j :.eio srfd" ni 5e5ji;/Ioii.. ;,j:a.,..jc..
J IIS .III IIS ,i9duj£fT lo 9*Bd-E^ :-'•:' ~~ .|ioi*sii>'aiHim6* dov& to'
tddgliW .V iBd-iqaoH yo'i^M , ;S:^ .u^ , . . -^ a^I .Tsteeiiof .f ©IsfiiiTgi
TOjJ'SXJaJtnJfciafiB erid- lo'i YiB^od-atro a/ ~^"^ ..^53 .gqA .III SIS iiod-iroexl
-osn Y-Cosnoasei ai as Isam/oo rio^a \.u.i.vJ..i- o/ eiataa aa to locfuosxe i:<
od- bus sd'ei-ss end- to aotifsnieiaisfsLB isqortg b #jE;o<la snlicf oJ t^seat
e99t 9lcf3noaB9i d-srfd- sbasial wbI sxi"? .toe^erf* aaQc2si;/cf sdi qu bnt^
lo a5m;t sxid" woit SiBq gcf oi" ,R9oi??i9e licL'a lOt fcawolls ed Iladi
.ect'Bd'a& 9rf;
beneipAalmbB Y.^ieqoiq LBtioei&Q to 000, 0*?$ y;let3ailxoiqqB aBW eiedT
jtt.'ii^talaimbs tcr erf-eoo to am^&l rioi/a lot d^m/oias laaoig a eltdS\ ,au^.
^ti'joQ leiid- eriif to iioid-aiosiS Drid- aij^jtw t-f>aa'T:BX Y*.taa«oen to a
*rr9;t9(TEJoo •^oXcjurs ot letfiroexs io lod-Bid-a ixilm&B xib aJlisrroq: ■wsl ©ri* d"9'
douK 10* ftlBg sd IlBile ao9t elcfsnoasei ^Bd& sstBlqm&taoo boB letaiKsi
erf* njt 9^,iisriy Y^n^^ e±sa o& taB&onLei yisv al tivon airfT '.aeojnrrrei
,floi*BT©f>j:afloc 9i;£) i«#ffl taY ,tiiyoo iBir!} ©ifd" ^cd bextt 8fi d-imom
©IcfBfloaBei B ed bLuoif OOOSii? to tmz &di tBdt aolatqc Bdi to ere -
.^5860 elrf;^ nt &iooei ©rfi" urott ibo'-^-' -'^<u as aJojs^t 9il* Toftcitr 9oamo±J.^
-3i?Ba 95* feiifi ane rxsfrqs yd 6«n;, .. ..oil© saoit) erfcT fteaxsaxe ©VBri el
.joerreei *arf* ci *ii/oo srii^ to ^lIvi ©rf* rid-lw Iwl*
ftflB AeaTOToi a I Jicoo Ib j:i;f .^rfj- to ^a^ta^bfrl bas 19J&10 ©rfT '
»dt tan ,&ellt SB J-jHBlIsqqrB to srIbIo mit aoqu ted Ssietfrro taQBqi,bu\
.aottoiielntmbB to ©aiuoo eub nt biac -^ -^ ,0003$ to au/i
txiwasljuf. baa Jbeeiavei d-ix-i;?) Ti-. r-r^ to iaons^bisT.
.913x1 fteiftJa©
STATE OF ILLINOIS,
SECOND DISTRICT T^" I- JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion .>£ the said A]ipellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this ^^y ^^
i-n the vear of our Lord one thousand mne
hundred and thirty-
Clcrl of the AppeVafe Court
(73S15— 5M— 3-32) .
GEN. NO. 8972 AGENDA NO. 36
IN THE APPELLATE COURT OF ILLINOIS,
SECOND DISTRICT
OCTOBER TERM, A.D. 1935.
IN THE MATTER OF THE LAST WILL .^M)
TESTA]>,IENT OF JAVfSS lARKINS, deceased.
CITY TRUST AI>3D SAVINGS BA?3K, as Exe-
cutor of the Last Will and Testament
of James Larkins, deceased,
Appellant,
vs. APPEAL FROM CIRCUIT COURT
KANKAKEE COUNTY.
NOLIA EYRICH, et al,
Appellees.
HUFFMAN - P.J.
This is an appeal from an order of the court entered
upon objections filed to appellant's final report, \?ith respect
to claim made for executor's fees and attorney's fees. The
appellant was naiaed as executor of the estate of James Larkins,
deceased, in his last will and testament. It accepted the trust
and acted as such executor. On ^uly 19, 1954, appellant filed
its final report as such executor in the probate court of Kanka-
kee county. The report contained an item of -^VOOO as a charge
to be allowed for executor's fees and atlorney's fees. Objection
was filed to the reiDort in this respect and the probate Judge
being disqualified to hear the case, the matter was heard by
the circuit court of said county. The court found that the siim
of ^^53000 was a fair and reasonable amount to be allowed and paid
to appellant in full for its fees and commissions as executor,
-1-
3f, .DTI AOTEO;, SVeS .01'! .WSS
,3I0PIIJJI 10 TffUOO STAJJS^l^. SHT HI
T0I^T8IC OTTOO'^:-.
QKL;. : . -.AJ SHT ">[( fiSTTAM SHT MI
d'ne(TfB;J'a®T fine IJ.: . . • : -.
,;J-aBll9cqA
,X.e (ts .HOIHYa AilOJ!
.assIIeqqA
."G.q - 1IAMT5T3H
boietae tiuoo &ti:t *io lejjio as moi'i I^e^qs hb ax aixlT
totiqaai dilv .iioqai leail a'^nelleqqB o* fyelit aiioJ:d-os{;cfo aoqu
9ilT .aaet a ♦Y^f^'iod-d-fi bcB 3S9t e'io;fxxo8X9 lot a5s;a mlslo orf"
.aCTijiiBj; aomsT, 1o s^B^tas srict to •lod'yosxe 2/3 fiaoian bbw j-nsIIeggB
tauit driJ bscrgs , .i-n9nii3«'-a©;t bJiB IIxw tasl slrl ni ,6©eB90©6
beltt JnsIXsor*, ,^£w'I ,ei ^1^% nO .-lojuosx© floue as bs^ToB bna
-aaln^S lo Jtuoo si-acfoirf erfj ni io;ti;oy:<:e rfowa as iioqei iaatlt acTl
egiBdo a as C00?# lo K9*i ns benlBinoo :^ioaei eriT .^Jnuoo ee3f
ttoitoeldO .aeol a'-^amot.tB fens aael a'lccTwoaxe aol bewoXIe ©tf ©*
»r6uL oitKioiq osli ftuB toertesi airicf -rj- d-ioqei »x(c^ o* Selll asr
'{(f MiJ©.{ 3flw i©*t<8n; ©xl.+ ,aaao orid nB»rf oJ beltilBifpalB gnJtsd
1-W8 dd* ^art^ bntfol iiuoti ©xiT . y^ju/oo Jjise lo .tiiroo i-lx/oilo srft
fJiaq bna tiwoIlB eo o# JxiiroiajB oldanoasei Jbns liB"! a aaw 000S4 to
,7o*i;o3x« aa enotqaxflinoo 6a« soox sifl tol LCul ni d-nBXIsqga o*
including attorney's fees. Appelles filed objections other
than those directed toward the ''7000 item. All of the
objections filed were overruled except as to the above item
of executor's and attorney's fees. The appellant has prosecuted
its appeal from the order of the court made with reference there-
to. Appellees assi'^n cross errors as to the objections overruled.
Sec. 133 of the Administration Act provides for com-
pensation to executors and administrators. Costs and exoenses
of the character involved herein are incident to the administration
of an estate, and usually included in the credit allowed the
administrator or executor for such administration. In re:
Estate of Thurber, 311 111. Ell; Sprinkle v. Forrester, 162 111.
App. 45; Mercy Hospital v. \]ri ;ht, Executor, 213 111. App. 554.
It is customary for the ad3:ainistrator or executor of an estate
to employ such counsel as is reasonably necessary to bring about
a proper administration of the estate and to wind up the business
thereof. The law intends that reasonable fees shall be allowed
for such services, to be paid from the funds of the estate. The
proper amount to be allowed is, of necessity, largely within the
discretion of the lorobate court. V.Tien such court has exercised
its jud'^ment in the matter, only a plain case of an abuse of
discretion or of the wrongful exercise of jud.^^ent, should
justify a court of review in disturbing such allowance. Griswold
V. Smith, 214 111. 523.
There was approximately ^|p70,000 of personal property
administered upon. Over :;i555,000 of this amoujit v/as represented
by certificates of deposit in banks; over $6,000 in liberty
bonds; and over ^|>5,000 paid to the estate upon a claim. There
was nothing difficult in the settlement of this estate. The
securities were in a liquid state and such as coiold be administered
upon with the greatest of ease. However, the law permits an
-E-
leri.to anoid-ostcfo bslil aelXeqgA ,seet a'^eniod-tfl ^albuloal
msit svocfjs eiici ^qsoxe belxriisvo 9T:e"W f^olJ:']: eaoicfostcfo
J&8*uo9aoiq aBxI d'nBlIsqgB adT .aeol a '\;6j0ioJ^;}'J3 bas a'lotirosxe to
-eisrfo eonsialai dttv ebsm &1U' to isf.ao axiJ tnoi^. IssqqB eJi
.fislx/iievo aaoi;J'osGcfo sd'^ od" ae a^io'i-ie aaoio xis-Cseb eselXeggA .oJ
-xiioo lot a&blYotq toA aoltB^taiSitsstbA erf* to SGI .oe£
aeaxiacfxo 5nfl s^boD .S'I0*«i*8 iaimJDB !mB aiod'i/oexo ©o aoiieaxiWq
aoitai^aiatmbB erid' od" d-nsf)ionl a-XB Jtisisil beYlomt iscfos'iBdo ©ri* to
«rii^ SqwoIIb jif>eio 9ri;f ni 6s5i/Iofli t^Isis^ai:/ 5fl« te^'Brf'se jib to
:ai rrl .noJ:*Biu3iniriTi).B riox; Ovti/osxe to lOdBi^falaljnfis
• III sa^ .le^aeiio'ii: .V elitnirrgS jIIS .111 IIS ,%9diudT to siJ-B^eS
.:^Gc .qqA .III SIS fio^tvooxii ^id: i-i'w .t Ib* jig^oH YP'xeM vj2=^ .qqA
©Jfld-ae n.e to lod-irocxe 10 lotQ-iit'zisilmbB adi lot yi-s^-Q^bx/o ai JI
JuocfB snl'id o* YiBsasoBxi xldBaoesBi si sb loano'oc- iloi/e xolqme o*
aeanie;;;' srfrf- gi; 5niw oJ 5cb 9cJ-s;t-as arid" to .acUB-i^slnlrafiB isgoig b
SewoIlB 9cf Ilflrfa east sldBHoaflei ^s.d& abae:^ai wsl s/lT .toeiorf*
oriT .9t3t^e arft to a£)njjt fjrfcf jnoit biaq 9cf od" .asoi-nse rioi/8 not
9fft flirfcMw Yl95?ifll ,Yols3909n to ,al JbQWOIXa arf o& dTii/omB leqoiq
BaaJrotsxe e«i( Jixjoo rfoi/a nsrivV .^iwoo ©*Bcfoig edt to floxd-9ioaj!6
to 9eifcfs as to 9?!so nlAlg jb tIcto ,is*;^Bffl eri* nl *n0iaaf>wt bcI-1
filuorff 'SBlorexB SmU^hoiv edt to -lo aoiiaioalb
6Io«reli-0 .eouawoIlB rieifij ^nxdttjiaib al n&Xrei to cTtx/oo s Y'i-t*a*'t
.5S5 .III *IS ,dtt:^e .V
^tiaroig iBnoercao to OCO,uVf xl^tamlxoiqqR qbw 9ied1:
69^n«t:9iqei asw ;^H«ofl^B alrtj to 000, as# -xq^tO .fiocii/ fieiajsixilffifka
t^ietfll nl OCO,d# i»vo ja^ffleof Jii itleoqeb to aQteomtiBO ^
eiBdT; .jEi»Io e noqw 9*a;ta« oH* o* btaq 000, (J$ asvo fjus jaBaotf
orfT .♦i'B^a© ei.T* to tnonrelifJ-eB arf* xa jTluoittiX) siiid;fon aBW
-.'^Tarniflifta erf blx/oo r^.^ rfowe buB 9*i»*« feiajpii b xri 01&1, BQliliuoBa
ae 9ttmeq wbI eiU ,idyonrf.H .9aBe to ;ta&Jfi9i;p, erii xl*iw xioqu
administrator or exec\itor to employ competent counsel and
reasonable fees shall be paid for such services.
If'vTiile we are of the oninion that the allowance in
this case is an extremely modest one, yet the trial court had
the advantage of personal knowledge of the matters that had
transpired in the course of administration, and his judfjment
as to the allowance of fees and commissions is entitled to
great v/eij;ht, V/e do not feel warranted in disturbing the
order of the court, entered as above. V;e have exarained the
cross error assigned by appellees and are satisfied with the
ruling of the court in that respect.
The order and judfpnent of the trial court is therefore
affirmed.
Order and judgment affirmed.
-3-
.o^ioivies rfqxre lOt Jbisq ©tf IlBik, ^ .- - :. .isnoBBsi
nl 9onx3Vv-oIlB erf* d'Brid' nolnigo erf;}- to eiB aw ellrfW
f>srf jBjdd- aieJcfBci arf* lo egJSelwoxi^I Isxioaisq to ssBdriBTfeB edi
Jnsnifi&jLrc siri ofiB ,noi;J'8T;d^aiiii:flil>B lo eaiiroo add ni J&9T[Jtqaflfl'xtf
oi baLiTliae al acoiaalmfliDO bas era--': '^^ - r-^.r r r.- ^rf^t o^ as
9ri* gnidiuJallb nl bein.Bi'iBW leal ... '^ '•■•eT''
Qi'.t beatmsKQ qvbA ef .svocTb sb b9i@tu,. ,« ^>^. .. .. .. ,.,b-xo
c,ri- ;.+ ;» ha ^^•;= rrr .=. .v • r. ,-r - =':'=>6lleqqB Y"^ &sngi8B» toils aeoio
. F>8;rn:x^
STATE OF ILLINOIS,
SECOND DISTRICT J ""' I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certifj' that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year oi' our Lord one thousand nine
hundred and thirty-
Clerl- of the Appellate Cmiri
(73815— 5M— 3-32)
ii
AT A TERM OF THE
ELM.TE COUnT,
Begun and helcl at Ottawa, en Tiaesday, tli^ fourth day of Fetruary,
in the year of our Lord one thousand, nine hundred and thirty-
six, within and fcr the Second District of the State of Illinois
Present — The Hon, BLAIME HUFF^JAN, Presiding Justice.
Hon. FRAMaiM R. DOVE, Justice.
Hon. FRED G. WOLFE, Justice.
JUSTUS L. JOxHIISOxM, Clerk.
RALPH H. EESPER , Sheriff.
28 5 1
@ kj
BE IT REMEMBERED, that afterwards, to-wit: On
APR 1 3 1936 "the opinion of the Court was filed in the
Clerk's office of said Court, in the words and figures
following, to-wit:
GEN. NO. 90 S7.
AGENDA NO. 6.
IN THE APPELT.AT3 COUBT OF ILLINOIS,
SSCOITD DISTRICT
FEBRUARY TERM. A.D. 1936.
CLSTU3 RIELLY, a Llinor, by
mRTHA RIELLY, hi a mother
and next friend,
vs.
FAIKTIS HAMILTON,
Appellant,
Appellee,
APPIilAl FliOM THE oIRCUIT COURT
OF l-VINiraiBAGE COUNTY.
HUFFMAN - P.J.
This was an action brought by appellant, by his mother as
next friend, to recover damages for personal injuries sustained by
him in a collision between a bicycle which he was riding, and an
automobile being operated by appellee.
This 5ase was before this court at the May term, 1934, at
which time the cause was reversed and remanded with a finding that
the verdict was contrary to the weight of the evidence. Cletus
Rielly, a minor, by Martha Rielly, his mother and next friend, v.
Fannie Hamilton, 276 111. App. 605 (Abs.). A statement of the facts
was fully set out in the former opinion. Upon review of the record
in this case we c3o not find a sufficient difference in the essential
facts to justify a restatement thereof in this opinion. Briefly
stated: The appellant was riding his bicycle north on Ilain street
in the city of iecatonica, on June 14, 1933. He was riding along the
-1-
.av
vd rfoirfw eloYoltf b xissewJecf noisillc
^TjBriJ- gaiiia: ^bnaicei 5aB &8aisv©T sow ©80.oc sjIj sxaxJ' rioiilw
6iooei eiii to WBtret ooqU .uoiniqo •zQmi.o'). grid- ni i^i/o ;^f)a -^llut eew
lBl*flOii89 axitf .ti ooaoiBltib tneioltlue b bnlJ. ton. ob ©w ec
YlldiiS .floirixao alxl* ni •ioei©il;f cfnomed-s^faei b Y'ii^a- '
-.C-
west side of said street. This v:as a paved street running north and
south and was intersected by l^'ourth street, running east and west.
The appellant was approaching the intersection of these two streets
from the south, riding his bicycle ncrth on slain street along the
west side thereof as aforesaid. Appellee was oiu rating her auto-
mobile south on Main street and upon the \7e3t side thereof and approach-
ing the intersection of Main and Fourth streets frcaa the north. As
appellee carae to the intersection of these two streets, she turned
her automobile west to her right, upon Jourth street. Appellant
sav/ appellee's automobile iporoaching this intersection toward ^ich
he was riding upon hi.s bicycle, ildien appellant reached the inter-
section of the two streets, he continued to ride his bicycle out
into the intersection, tia-ned it to his left on Fourth street, which
was toward the west, with the result that a collision occurred, for
this
which he brings/suit. The accident happened at about 11:00
o'clock in the morning. The weather was clear and the streets were
dry. Appellant's view was unobstructed. He saw appellee approach-
ing the intersection. Without diminishing his speed, he rode his
bicycle into the street, and as we are convinced from the evidence
into the side of appellee's automobile, after she had turned the
same from Main street west into Fourth street.
Upon the trial of this case, the court granted appellee's
motion at the close of all evidence, for a directed verdict.
The appellant appeals therefrom. It is urged by appellant that the
trial court must take the evidence in its most favorable light
and with all inferences that could Justly be drawn therefrom, in
passing upon such a motion and urges that the trial court com.^utted
error in the granting of the motion in this case. The above rule is
a well recognized one, yet where the evidence, with all inferences
that the j-ory could justly draw therefrom, is so Insufficient that the
-2-
.tap- -' ■t^E.Be sfliniurrj: ,d-©»tJa iUiuo'? y<1 beio&aieiail Bsm 6aB iWjjqb
soicqB boB tosisdi eblH ;tg$,,w .nW aocjif i^f ;^ ir-c^'a isIbM no rf:firo8 sli cfoffl
aA ,iit%oa Qdi lao'il 8d-9ei;f.^ dtTai/o'S .V... . -^^ noid-oaaisirni eild- sai
;fnBlI©gqA .tsQitfa Afmol aoqv ,;frlgit!: ^t.. -- . __ . alXdoacd^.. ____
doiifir ^oasrod- aQxto^ate^ai ntdt srrlrioBoigg^- ^Xi<Joiaod"uB a^asIXsqqs wbb
-istffl 9ff^ Serfoserr *0BlXeqqB noriw .sXoYoitf «iri jrtoqi; saifiii bbw ed
iuo Bl9\oi€ aid 9bs.i oi bessaiiaoo exl .aJ&eaJa cwt adt to £t9lt9f^
rfoWw ^teeiia riifi/iof fio rf-t*! ixf^ 03- ix. L(isi-mi ^^oi^oe»ieiat erf? otal
lot .beirmcoo nclaiXXoo b t isd't tissa&i edt dilif ^jTasw edt biBirot &tm
00: XI tucda i& baaeqqBii iceblooB sxlT ,*ijja\a3jSiid eri doMw
stew a;}'99a*a sifc^ 5rfB leaXo sbw tsiUbsw oriT .sniaaoiB eil* ni dIooXo'o
-dOBOtarr ?>.,' ToqqB WBa eH .fiad-oi/iitadom; saw weiv 8**nfiXXe<3piA .VC*
aid Bb: .. -..- ,3s»gE aid SjaldsxniTf'i". +ifo/fc' t"" .rrojrfTj.j.;T->tfll ed* jHi
aorr©fiiV9 erit arcil feeoalvnca ei, _. ..:_. ...,.,, 'f r Blnvolcf
." vvii-e drf'ii/o'fr otni . ^. ..:.. -_... v ?f^«s
3'^-5f^ir^. •_'..., jiijoo «d^ ,5330 al;' li* ©dJ
..toiStev b^fo'.yi'h ;. -ro'T .■i^m^SlY© II,: ,, _ joXo sd: .- „..l^oxtt
ed:t d'.>f;t *a«CIft ,..ioil9'i3dtf eXaaqqs JiiBXIdqgfl ©dT
jTfs?I elde ' : eoaebtVii edii s^foi- J-juui tiuoo letit
nt ,Borrt©T9d* irffBrrfc srf x^tssji bZsioo iBdt aeonais^ai XXs d;flw ham
bBttbmo9 #T'/oo It^To e/fo- ^ r^ ^•t -^oatc; 5;:^; r:(.t.to.iT a doua aoqu Sfllaaaq
8l ©Xiri ©Totf;' inlcTilBis sd* «1 ion*
8©oii©i0lfll XX.^ . c:tohlw9 odt eied .^ , oiio &©ali3so©6i Xl*w 'b
•d* *flri* tn&tomif^al ^noitaiedt iratb Y.li^ul blvoo x"^'': ^"^'* ^«rf*
-S-
court would not permit a verdict to stand, if ret\irned, -^hen the court is
not bound to submit the case to the jury, but may direct a verdict.
Simmons v. Chicago and Tomah R. R. Co. 110 111. 340, 346. To the sar.e
effect is the case of Greenless v. Mien, 341 111. 26S.
After a review of the record in this case, we are of the
opinion that the facts presented on behalf of appellant, ate in-
sufficient to sustain a verdict. The judgment of the trial court is
therefore affirmed.
Judgment affirmed.
emBB edi oT .9J>5 ,0^5 .1X1 OU .' .' rieffloT fens OBfloitfO .▼ exionifll8
.SdS .ill I:^?; ,asl.L. ,v -dzalaeet^ to ssBo a/13- el *09l1te
edt to 913 9w ,oeBO a 1x1* ni I)'xooot eri* lo wsirsi s 19*1A
-ni 64b .taslleqqs lo tiAdacf no be^cw&e^q b^obI sriJ tsffcT xiolnlqo
3i Jmxoo IbIi* 9ri;t to ta^msbssl srfT .c^oJ:f>^:^T s nia^ai^e o^ Jrtslolllus
.iisffiiillB 9 lot ei© fid-
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do herebj-
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my oifice.
In Testimony Whereof. I hereunto set niy hand and affix the seal of said
Appellate Court, at Ottawa, this ^day of
in the year of our Lord one thousand nine
hundred and thirtv-
Clerl- of the Appellate Court
(73S15— 5M— 3-32)
AT A TERxM OF THE APPILLATE
Begun and held at Ottawa, en Tuesday, the foUf?''^th day of February,
in the year of our Lord one thousand nine hundred and thirty-
six, within and for the Second District of the State rf Illinois:
Present — The Hon. BLAIT^TE HUFFr/lAN, Presiding Justice,
Hon. FRAM^ilN R, DOVE, Justice.
Hon. FRED G. WCLFS, Justice.
JUSTUS L. JOHIJSON, Clerk. O
RALPH H. DESPER, Sheriff.
^.
(U
7'
BE IT REMaiBERSD, that afterwards, to-wit: On
APP 1 ^ Ar. the opinion of the Court was filed in the
^^^ J ^ 193S
Clerk's office of said Court, in the words and figures
following, to-wit:
GEN. NO. 9039. AGENDA NO. 12,
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
FEBRUARY TERM, k, D. 1936.
PEOPLE OF THE STATE OF ILLINOIS,
ex rel EARRY H. HOLTZ,
Appellee,
▼3. APPEAL PROM THE CIRCUIT COURT
KANKAKEE COUNTY.
CITY OF KINKAKIE, a Municipal Cor-
poration, et al. ,
Appellants.
HUFnilAN - P. J.
Appellee filed his petition for mandamus against appellants,
seeking reine tetement as a member of the fire department of appellant
city. Appellants filed their motion to dismiss the pmetition for
want of sufficient ayerments therein going to show a clear right to
the writ sought. The court overruled the motion to dismiss, icp^
Appellants er^ ected to stand by same, whereupon the court gave
judgment for the petitioner and against the api)ellants end ordered
the writ of mandamus to issue as prayed. Appellants prosecute this
appeal froEi the judgment of the court.
Appellee by his amended petition alleged his citizenship
and residence; the incorporation of appellant city; certain sections
of the City Code establishing the fire department of said city; the
adoption by the city of the Fire and Police Comjmissioners Act of
1903, (ch. 24, sec. 843, S-H, Sec. 958, 111. St., 1935), on Sept. 4,
1928, and the continuance thereof from that time to the time of the
-1-
,SI .CI'! AOISSA .6509 .OH ,W-^
aioKivLii 10 Tsuoo aTAJJsq^A sht ;ii
TDiaT^iG awoosia
.d^9L .a .A ^mim' YJLiUflffl^
,8101111,11 'iO STATa £KT -iO EJ^OK'
,:.TJCH .H YHJiiiH X©i x
TJIUCO TIU.. -Si uiAd^;;iA .av
.YT;. ]a3
.aJnjBlJlagqA
."G .1 - MAJfff'^UH
,a;fnBlIe'~qB oanissB auiuBfinBiix io1 aoititoo aid. beLtt soIIsqcrA
iaalLeqqB to ineia&iBQ&b eiit edt lo rsdsioa r &b taeme^Bt ailei g.nl3fo9a
TOl noi:Jx;J-9Kcr eiid ssJiffieib o.t no .a orp lied.t b?jlit ac^CBlIagqA .Y^-to
ot *rfsii 'ifleilo B worfc o& sfiios flj:-3iec[a- Cvtns/tnevs tnsioilliJL'a lo onsw
^^ .Baiirr8i:5 ocf aoi+om dri.-t SsIifiioTo tiiroo sxlT .trfaifoe ;f.tiw ei':^
9VBg tiuoo e.'lcf noguarteriTT ,a?is8 "id bae&a ot b^ioB b a;tiiBlI©qg>;
bsTobio baz si-nBlIeqqe oif* ^aniBgB 5nB n¬-i'iidq sAi ic1 ioBSX^bv^
zi.Ai sJi/osaoiq RitflallsqqA .be-^Biq ae ewes t o* axjiasJbxxBm lo i-ircw 9/:
..tTiJorj erfjf lo ^namg&ifr eitJ moil: iBegr'-
qiaane" i;^ ro eid 6©jj9IXb aotti.iBq ftebnema ajtjf ^cf f^elleqqA
afloi*o3a aiaJtoo jY^io ^ajBlIeqqB lo nolTBtoqiooni aitd- jeorrsfiieei i)iT
od* \xi to biae lo Jna0i;rii3q«Jb eiil &d& satdatldBtae ©boO y^J" i^^ o^^ 'i
lo *0A aT-snotaaliHwoO ©olio • bns ©Ti"? ©rfcf lo y^-to 9d& xd aottqob
,# .*qeP. no ,(2591 ,.*P . m ^ggp .^,^8 ,H-£' ,Sl^8 .o©£< . . o) ,COG
off-^ lo 501+ ' -'^ -- -■■-' •-- --T-i 'loeiexli- ©onBirnUno-:. c. ra ,88^
- r_
filing of the petition; the organization of the first board of Fire
and Police Couinis si oners, their continued successors, together with
the rules and regulations adopted by the first board in accordance
with the teriTis of the above Act, showing the classification by which
all positions in the fira departiaent ¥:ere classified, together vith
amemdments as made from tine to time thereto; that the petitioner
was a member of the fire department of said city at the time of the
adoption of the Fire and Police ConaTiis si oners Act on Sept. 4, 1928,
and that he had so been a member of such fire depart-ment for snxx more
than one year prior thereto ard had continuously served as a member thereof
in capacity of a fireman to May 4, 1935; that he took the examination
prescribed by the BoB.rd of Fire and Police Commissioners, passed
the same, and was on August 7, 193", appointed and certified by
said Board of Commissioners as a niember of the fire department of
said city in the classified service of the same; that as such
member ho filed his bond and oath as required, and that thereafter daid
board posted a roster of the permanent members of said fire department
and that the name of said petitioner appeared thereon; alleges the
official capacity of the municipal officers, includin^^ the members of
said Board of Commissioners; a] leges that the I^yor of such city on
May 1, 1935, arbitrarily, illegally and without reasonable or probable
cause, in disregard of the Act as adopted by said city, appointed other
perrons to fill the positionfi of firemen in the fire department, in-
cluding the position held by the petitioner; that the petitioner
did not comply with the request of the Jfeyor to resign his position;
and that the petitioner and the other members of the fire department
refused to resign in coTr.pliance with the Mayor's request, and remained
on duty as well as the persons appointee^ by the said Mayor in their
stead; that the Board of Commissioners appeared before the Mayor and
informed him that the petitioner whose resignation he had demanded vma
not subject to removal except under the terms of the Act which
had been adopted by said city, but that the Mayor arbitrarily
-2-
iltx^ aadiJ-s-gOv'- jattoeaeooxfa b'^xsiiX'i 1:00 il&d'i ,&ianol.-eijncioO .*oJ:Io<T I)
9oas5tooo8 flx ftiBod j}-2iJ:l: sili" Tjrf &e:fgo£i.3 acoJtJBlirsei J&na aelxfi i
il*iv Tt.'jrfitej^oct ,6911x030 10 r-i©"^' feenpid-iecwfe eiil ^il* nx snoliS-Jbeoc t
asrioWl^eq 3il# i^ ?ri';f jo*&isrf;r ©lttJ::^ o;t £:J3i:^^ mciT: ebom ae 8;fa9a£rp
,8S'5I ,:^ ..+ffoC iro -toA aiarfoicU-..LTtfnoD eolXo'^'' fir.p oiJf! arf^ T:o flolt^Q
sioir SMBS icl: j-noiiiJ-isgsf; ©Til rfox/i; 110 xexfflieai b asscf os &■• ' •-• T ?>'.!Tt''|
Disrf;}' ledsie^r. b as SsTiaa -^Isjjoxrni^tioo ':'••'' '■'''■ '^^^Tsifif lolic . , --.- li
Ytf I)9l*iJ:d-ieo trrs Bej-nioriqi.! ^"SG. , '. . .::^l'A ao sbw bus ^stftps «
"to 3"i:ei;;ti£qsf) eiil sii;!- Ic iecfne«i e afi arcenoiaslinmoD to ^iboS fcj
blab loilaczedt d-.r^ii^ ban ^banlup&i ea rii bo bns f>nod &i.d beLtJ fid rredJt
tOBBSfiBqeb ©ill btae l^o siedmetfi itnerti^ffiecr »ri;|- Ic isitBcrr b fisjfeoq f"r
eilt aejsells laosieit beiaeqq^ tsnoJtJiSeg 61ss "in sxiijarr eilif ;tBric
£C0 Y^io il^iRs to lo^sil ©il^ tartd' asgel Cb jRi'^noiaGlrranoO lo MboS 6
eId£cfoiq '10 s/.rf M-o.' A^i c^iro.fltf•jtw &riB "ijl .£.=»§ 6 jr.: jY-J^-t'^^^'i^itf'r-^ ,:^?;!'"''' ,^ ^
i9dto bctcilo^qs. , ^ . - bifle, y<^ b'i&qoba e.e j-cc ;xl:}' to &iiijj€7.c ■
-ax .d-nsifflfifiqgfi eilt 9ri;^ al xiemei.i:t Ig -jaciJiiEoq- ari^ Hit ..
iofloJ-.tr.*:--, ^;rf,j- ^Brftf ;iercoi.t.rr;-.> ,.r+ v«f 6Iori aoitisog oil.t sn.r»^>
;ao2i-i:3c . . ...iggi of ioyb?^ ©rf. -■ ..c/osi r-»ff^ riitlw iflcffloo ^or;:
*a£ff?i'-'ie-:or) siil exl.i- to sas'fnjsjiT iHri^fo srfj- Sna lonol^i^sq orft jfsrf*
btalBT'j- ' ,ta9ir:;e7 ?. 'lovflM orft rfS-tw ©oxLelCqinoo ai aax-^t od" 63
iIqM ttl re-^K. bisH edi x^ *^e«jrf.rr.'-r . >rf0!=!'.r9': art* as IXew bb t^i. :.
-^fl» ^OtflM •!& »»rot9Cf 60T[B«qqf? ST©!!.. .1 ,. . ..rcO to litflOr' '-sr-.f +rt-f.+ 'hs!
BBw f>©fjn/aR»6 5ad oil aoJ-JBosiaet eaoriw i9noi:*i;J-»q ©d+ . -. ..!.,
i^oxrfw i'pA £ri:t to a^rie* «:fl -tn-fir :+(t.^.'>xo Xbtoxhsi o* toe^duv.
ZiliST.7idiB waxaH edt -J- -iirr ^ '■■_ } r.^. v.f beiqobB nsatf .
-3-
and illegally refused to recognize the petitioner as a member of the
fire department. The petition then sets out that the Mayor removed
the existing Board of Commissioners whose terms had not expired, on
the grounds that the interests of the city demanded auch removal, and
appointed other persons in their stead as commissioners; that the
newly appointed Board of Commissioners met and adopted a resolution
suspending the petitioner and tho other members of the fire depart-
ment whom the Mayor had souglit to remove by his demand for their
resignation. The petition then sets out the resolution of the new
Board of Commissioners wherein they find that the City has tv^o sets
of fireman, and proceeds to name the newly appointed firemen, re-
solving that the former members of the fire department were suspend-
ed without pay irntil the further action of the conmiission. Petitioner
shows notice of such resolution as being served upon him; that sub-
sequent thereto he appeared before the Board of Commissioners and
requested it not to suspend him until the former Board of Commission-
ers had been called before the present board; that this request was
refused; that petitioner reported daily at his usual place of employ-
ment for the purpose of performing his duties as a member of the fire
department, and was denied such right. The petitioner alleges that
the action of the new Board of Commissioners in suspending him was
illegal and void; that it was the duty of such board to inquire into
and in-restigate the rights of the petitioner, and permit him to
establish his rights to the position as fireman in the classified
service of the department; that the board wholly refused 60 to do;
and alleging a written demand served upon the board to restore him to
his position. The petition alleges that no written charges \7ere filed
with the board against the petitioner and that it had no right to re-
move or discharge him for cause, except upon written charges, and
after he had been permitted to be heard in his ovm defense. Allegation
-3-
beyiMoi -lov^Bif. ed& i&Ai tuo aisa nen'o aoioiJsq ailT ,$aemt'iBrB^ o .
ao £>aai<iX'3 :ror; o^il Hisnu'J^ saorivv- ^^isjaoiaaxfliEtoO lo fiieoh ^italXiB
edi iMi ;3i3aoic:sifflffioe a/i bBate lisdi ai siioBisq i9il.to betni-o
lisn;)- lo'l £)iiBxa&£) aid xd ovobbi oj Jii^..aofi bad noxeSf. 9iii mo^.
wsn 9rf;J- lo iiojfci-uloaei 6£lc^ tuo etsa i»iU acidid-sq edT .nol3^fixi84:a«
ztss ov7i tisd "^^X odd" d-srf* Jbnil Tj©4if nleasitv eisxioles JtrTinoO lo £>iec
-01 ,aefliGiii i>d3nioq<|« x^''''^^ ^^^ esisa ct af)&900*iq bae ^iiBsi^iXl
-IkaeqauB s^ow J-aoin^fiBqoi) eill aJLJ' 'it eiodiioxK laiinol &di iBdi gaivic
-cfjja JBd^ iias-d iioqu b&vioa pniscJ' ae ri©irf'i;IOB9T[ iIox;b lo so id- on awoi
6fiB aiinc JEaiiniaoO lo l>iaoa edi^ aioljicf ooTisegqi. sri oitsisiW -^aeupi
-aoia2i£icioO lo SiboS is«nol ad^ li^mj siLd buecraiss ot d^cn ji 5sd"aei;p(
aBw Jss;j,;'i =-.i:rfd- i-Bri* j6^B0cf Jnenenq silcr aiclad fisllBO n'sscf bBil a«
-Yolqxne !■ aoislcj isuai; eiii ^a Y-t-t^i> fesiJ'ioqsi isaoxd'itsq tsric" jfjeaxjl!
eii't erij lo iecfrai:>r' £■ ajs &eJtub aid. j-nijarolioq lo etoqiuq oiid" t:o1 ^n<
;»'BxIi- asgsXlB lanoid-i^aq aiiT .J-rfoii ilOi;a beineb asw 5nB , d-nsard-TCBq'
aaw mid jjnJifirs^TEjje ai eienoiseiirinToO lo iJiBoe wan siS- lo noiJoB 8j
o*ni oiiL'x :-od /lox/e lo x^ub orli"- asvr ;ti i&dt ;£»lov iJnB IbsjS-^
od- lifl itxiaTift , i9nolc?iJ©q ed;t lo aJxlgii exlcT ©i-flgid-EeTni 5j
beiliaaBlo od^ xii nacisnJ-l sb cciJ-xaoq odi od" sJiisi'i elil riellcffl*i
;q6 Git o< 692i;l»T Y-tloriw 6iBocf exiJ S-oxi* j JiTSjad-iflgoi) sxlJ" lo soirx
o* mill Qici'aoi ot biBOd ert* coqij Jbevisa banLiAb aotitiv b i^nlasIlB Jbj
boin «i8-w aogieilo aatfJliw on Jf^xl-J aeseilB aoicfiJ^eq eiiT .x^oi*J:aoQ a.
-ei o* i-jls-ii oa ijsil il tadt baa 'loaot^tieq odt isaX»^.a biaod edi it
ban ^a-JSTflilo aeti rtff aoqu tqeoxs ^^asjso 10I add ssiAdoaJtJi 10 9V(
-fi-
is made as to the annual appropriation ordinance for the appropriation
of money for the payment of salaries of the members of the fire
department. Other and detailed averments are incorporated in the
petition going to establish the right of petitioner for the writ
prayed.
We ha.ve examined the authorities cited by appellants and have
carefully considered all the points and propositions argued by them.
We are of the opinion that the petition fairly establishes the right
of the petitioner to the writ. The motion filed by appellants was in
effect a demurrer, and therefore adiriitted all facts well pleaded by
the petition. The judgment of the circuit court of Kankakee County
is affirmed.
Judgment affirmed.
-4-
aotiBtiqoiqas Qd& lo"! aoaBaibio noljGxiqoicrqfi LsuaaB Bdt o* ae. ebsm sJ
31 isrfraaai eri* lo ssIibIas lei ^xs©fliY»<I ®rf* lot •\j;9fl0fli 1<
erf* ill ^edsiDqioonl 9TlB a^nofircGV/-? b^IiB^eb bfis iori*C .iaQsrttBqel
9VB!-? fins uJiiBiisq-qa vrf .Sejjo s^i/t '.i c/i^r .3 ed:r bonlmsxe cvBd ©■;
.flterfJ Y^^ asu^is aaotiiBcqciq bnn &Satoq eifcf Lis J&siefiienoo ■^Ilirtetcet
i'xfglT arfS- zsdatldBtas Y-^i-i^^ xioiJi;tec erfd' d"sflcf actatqo edt *c sis ol
al zsff ad'nallarcB y^ bolil: aolJoiti s.iT .cfl:'j:w & + o;t tenoltitsq Qiii 1<
.Be/iTiltlB a
-:^-
STATE OF ILLINOIS,
Vss.
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, iu and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this ___day of
in the year of our Lord one thousand nine
hundred and thivtv-
Clerl- of the Appellate Court
(73815 — 5M — 3-32)
AT A TERM OF THE APPZLLATE
Begun and held at Ottawa, cri Tuesday, the fo^irth day cf February,
in the year of our Lord one thousand nin/ hundi^ed and thirty-
six, within and fcr the Second District of the State of Illinois
Present — The Hon, BLAIME HUFFIi/LAH, Presiding Justice.
Hon. FRAIH-CLIM R. DOVE, Justice.
Hon. FRED G. Y/OLFS, Justice.
JUSTUS L. JOHITSON, Clerk. 2 8 ^ T A ^-
RALPH H. r-ESPER, Sheriff.
BE IT REJyiElffiERED, that afterwards, to-wit: On
APR 13 1936 the opinion of the Court was filed in the
Clerk's office of said Court, in the words and figures
following, to-wit:
GM.NO. 9043
AGENDA NO. 15.
IN THE APPELLATE COURT OF IIJINOIS,
SECOND DISTRICT
FEBRUARY TERM, A. D. 1936.
ALFRED MESS,
Appellant,
vs.
SETH L. PETTIT,
Appellee.
APPEAL FROM TlIiL CIRCUIT COURT OF
ROCK ISLMD COUNTY.
HUFFMAN - P. J.
Appellant brought suit against appellee because of pieroperty
damages sustained as the result of a collision between a motor truck
owned by appellant and one owied and operated by the appellee. The
complaint consisted of fourteen paragraphs. Appellee filed his
motion to compel appellant to make certain paragraphs of the com-
plaint more specific. This motion v/as denied as to all t>aragraphs
of the compraint except paragraph 13. The apnellant elected to stand
by his complaint and judgment Y/as entered on the pleadings in
favor of the appellee and against appellant for costs.
Paragraph 13 of the coiiiplaint is as follows:
"13. That at said time and place defendant did
one or the other of the folloTiing acts and
thereby caused the collision and injuries
aforesaid;
(a) Wantonly or maliciouBly drove said motot
truck then being driven by him at an ex-
cessive rate of speed across said railroad
crossing and into the motor truck of the
plaintiff, having no regard for the safety
of others.
-1-
.31 ,0n AQWl^i. £-^09 .OW.MO
,310111 IJI -50 TRUOO STAJvlS^A SHT MI
.TTHUCO : .av
.TITTS'^i: .J HT3r
.©ellergA
.T, ,1 - ■ttAJfafUH
Y*i9goi3CQ "io eau2,osd ssllaqgr, JeflxssB tlirc ^fxtsxroid tasllaqqA
eriT .ftsXIeqqB aAt y^ 5e*Bi0<TO fjctB 6snR.'0 oao bna JnBlIeqgs xrf benw.
aid fjsli'i esII^gqA .erfqBigsisg rtes^iuo'i lo feeJaJtanoo Jnlslqinoo
-BD© 9xt^ igertisq xiJtB*iao ©r^jsar o^ ;tneJ:i9gcfB leqmoo o* noi*o;
eil«7JBTCseiBq lis o^ sb feoinsS 3Bw aoiJo.- .oitio^cjB aionr ^nlal
ftoB^a ot b^^ooSs taBlL&qqe edT . ■;i.siSBisq tqeox® JniBlquroo add- ^o
nl B^nltHoLq sri* no 66i©d'fi9 aBw ifiiemsfJifl; baa tat&lcTOioo o.'
.3;^aoo lot tnBllsqaB d'saj: Bjie 6aB aellsqga edt to tcovb'
:WOl.
■J ..liijj.l.;..:,, i^U .;> J.AO X'.- Oj, iili JX>;JJ^'iJ:;
i&iBSOIOtjB
loi-off b/3s ^.voi6 Y-f3uoJ:o.MBor to YinoJ-nnW (b)
X^elBe 9ii& tol drragfli on snlvi- Iq
(b) Drove said motor truck then being operated
by him at a speed greater than was reason-
able having regard for the traffic and the
use of the way, and at a speed which endanger-
ed persona rightfully on said highway, contrary
to Sections 22 and 23 of the Motor Vehicle
Lavr of Illinois.
(c) Negligently drove said motor truck at a
dangerous rate of speed approaching and cross-
ing; said railroad crossing.
(d) Negli^^ently drove said motor truck vrith de-
fective brakes and was unable to slacken tYe
speed of said motor truck due to the con-
dition of the brakes.
(e) In approaching the motor truck of the plain-
tiff negligently failed to keep to his right
of the traveled portion of said street or
highway.
(f) Negligently drove and operated said motor truck
without keeping a proper ?/atch or lookout
ahead to observe other oersons and vehicles
upon and using said street or highway there.
(g) Negligently drove and operated said motor
truck to the left, a^viev/ed from the posi-
tion of the driver of/^id motor truck,
of the paved portion of said stree;t or highway.
(h) Otherwise so negligencly managed and operated
said motor truck while approaching the
motor truck of the plaintiff that it ran into
the motor truck of the plaintiff."
The appellee complains of the fact that the allegations in
the above paragraph were indefinite and unfiertain for the reason they
were stated in the alternative and therefore that said defendant
could not properly answer the same nor prepare for trial with any
certainty as to what acts of negligence the plaintiff would seek to
prove against him. Para. 42 of the present Practice let of this
state, Ch. 110, Sec. 167, 3-.H 1935, provides that a litigant may
aver his claim or defense in the alternative. This was evidently
in order to avoid variances v/hich could not be foreseen, and to thus
-8-
'usrfj- neJse'i s Js aiJtri \;rf
jic'- Oil* ic ■■ tvKr: ©Icfe
ossge Bo ; to ©an
•^^— /-.. , ,... .__^ hl&ii no \- :■: fc©
DiolrteV rtod-oM ad J lo SS ban h. oi
. a . - - ' fi-J.
-eaoTO bits jc^iitoBOT s lo ©d^Bi aisoi&^Bb
^'lo 5.B0'I:I.^f:;•I OtBa s^ii
-eb dit\! ilox/ia'" lojom SiBs svoib YltaaglXjieTl (£>)
srfd- n©2losIa o^ slcfarrx; asw Bob 3©>'Bid' avl^o^^
.seylBid erli- to aoiilb
-xiislg Sri* to .ifOLri* loJoitr erfrf ; al (s)
tf-xlsii aid orf- g©e3J ocf i)&IlBl: tjIo , ..li
lo ^fesiifa biB3 lo fioid-iog baXevBid- orirf- lo
jioijii Tod-om bise bo:^&ieqo baa avoib yXcTae^:-^ 'X:"^:-'^ fl)
u jLfc:''ooI 10 dots'*- lecroiq s snxcr;)sM 0
asloiifgv bus axiosisq lailJo ©vioadc o'
■ iBa .03" (g)
to floij
erf:J- lo
be&Bieqc -■:■: -ri ::.::■ -r- Jit iy~"-l. '-r- an ::o =^:; ■v/Tdtfrf-C (r!)
cdrri jIb-i j i
" .11 xd'nijBlor aria" to aoi/nJ 'lojoai ^rfd"
ai Bno::t.^.'-.3iic eri.t a ed J- ;Job1 sxfd- lo aiiiBlginDC' 8sXI©qq.s erfT
Y»d* rroafit i .tie^xm ftiae e*i:nileZ>ni 9i»w riasx^slBg eTods e
*nBba9l©f) 6iB8 J arid- eiolsisffel- i^ns ©vIJ-Bn^stf-Ic &<li at bet&tz ei
YiiJB d^is IniiJ 'lo'i oiBqQiq loji eflist arfJ' les^aAiB xliogoig *on bin
0} 3fs38 filijow llJt;)-£Li:Bl(f asU aoaas-^Iaexi lo a^s^ d-jBdssr o* as x=^«-fci-^'^'
aJtrf* lo c^o^ ecl:^v:y,i jaaao'xci &£ii Ic Crfe' ,bo:b\1; .Eid i'sniBse eve
Xaa taa^iitl 'jiroiq .efiSX D-o ,V6X ,oe8 ,OXX .ifO ,©*£
Xltaablro a&s . JifjaiiiejJ-Xjs aiJ* ml aaaelsb 10 mxflXc aXri ae
ftVii^ o;t 6c£ jnesssTol orf ioa biuao doiij'w aeoiraiisv J&lovfl 0.+ isStco
make pleadings and proof correopond, w^iihout the necessity of a sepa-
rate count or ;^lea as to each of such averments. 49 G.J. 97-98
contains reference to many states which by statute have sanctioned
such form of pleading. As we understand the above section of the
Practice Act, the defendant may plead to the parar^raph of the com-
plaint V7ith equal certainty to that used by plaintiff.
V/e are 'f the opinion that paragraph 15 of the complaint
meets v/ith the intentions of the present Practice Act. The judgment
of the court is therefore reversed and this cause is remanded with
directions that the trial court shall enter its order denying the
motion of defendant to make the complaint more specific as to said
paragraph 13.
Reversed and remanded v/ith directions.
-3-
'Bqes --5 to YuicaeovT cAi itsodi^v ^htLoqe&iioo tooi<i baa h^^aibaalq s^
8e-VC' . . .««^IISv'neTB dtusa to tfsae o;t 8B saifr to imsoo e^e
bsaoiiOiisB evail e^uiata xd doldfi aetaie x^^^ o* Boaeislei aataiac
srf* to noitoes erode edi baB^aiGbau r . atbBBlq lo raiol doi,
.?xi:*rfiBlg Y«f basi/ *siit oi- -ztrsiutZQi Lbsjoq dt tv tntB^
^tataLqvroc •c^dt "tc ?!I dqBi:^Bitiq t&df aolatqo adi Ic sib ei^
i-aeffig^i't. sifT . taes^Vi eifcf to afiGJ:;;^ile;f^i: srf* dtlvr a*9«
li^iw f>9£)nfiirei 8i ezuBO !=Ad^ bus f)68i8T-3i STotertad;? al ;fTi/oo ado .
erf* gniYns^ isMo p,*i aad-jig IlBiie tiaot> iBiri odi ied^f Baottosml
bisa o* SB ollloaqs arrow tnislqiaoo arf^f e7fa;ii o? ^nsfmatab to noiJt
.51 riCTBnSBIi
.anoi^oaiib riifiw bsf>nBiB9^ &tB f>eai3vefl
STATE OF ILLINOIS.
SECOND DISTRICT J I. JUSTUS L. JOHXSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tlie keeper of the Kecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony "Whereof. I hereunto set my liaud and affix the seal of said
Appellate Court, at Ottawn. this _ day of
^ in the year of our Lord one thousand nine
hundred and tliirtv-
CJerli of the Appellate Cotiif
(73S15 — 5M — 3-32) ..a!
AT A TERM OF THE AP?
Begun and held at Ottawa, en Tuesday, the fourth day of ,■ Eebrliar y,
in the year of our Lord one thousand nine hundred and thirty-
six, within and for the Second District of the State of Illinois
Present — The Hon, BLAIME HUFFJAAN, Presiding Justice,
Hon. FRAl^aiN R. DOVE, Justice.
Hon. FRED G, V/OLFS, Justice.
JUSTUS L. JOHIJSON, Clerk.
RALPH H. lESPER, Sheriff,
28 5 I„A, 597-
BE IT REMMIBERED, that afterwards, to-wit: On
flpp 1^ ■jQoo the opinion of the Court was filed in the
Clerk's office of said Court, in the words and figures
following, to-wit:
GEN. NO. 8944.
AGENDA NO. 2.
IN THE APFilLLATE COUKT OF ILLINOIS
SECOH) DISTRICT
OCTOBSE 3a.EK4, A.D. 1936.
Joseph InsraSvSia and N\mzio
Ingrassia,
Appellants,
vs.
Daisy K. Magoon and Ezra P.
Ivlagoon ,
Appellees,
APPiiiAL mO]£ TIL:, CIHCTnT
COURT OF WINNEBAGO ODUNTY,
DOTE, J.
On November 21, 1931 Joseph Ingrassia and Hunzio Ingrassia
riled their Bill of complaint in the Circuit Court of Y'innebago
County praying for the ^ecific perfomiance of a contract dated
Deceuber 1, 1926. The complaint alleged -oiiax the defendants, in
consideration of the payment of f|42,500,00, agreed to convey to
the plaintiffs by warranty deed, clear of all incumb ranees,
certain premises in the City of Rockford therein described. The
bill also prayed that if the defendants shall fail to convey said
that
premises according to the contract , /then they be required to pay
to complainants all daraages by reason of such failure. The bill
also prayed for an injunction restraining appellees from further
prosecuting a siiit in forcible entry and detainer then pending
in a justice Cdart in the City of Rockford. A copy of the contract
was attached to and made u part of the bill, and by its provisions
the plaintiffs agrued to buy and the defendants agreed to sell
said premises upon the j?ollowing terms: $5,000.00 was paid in
cash, $1500.00 was to be paid in ninety days, |1500.00 in one
hundred eighty days and the balance of -^34,500.00 was to be paid
-1-
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," ,.svcc
osfld'snnir/ to ^tr-T. .t iuaiiO siii ni J-niBlcrnroc to Ilitf itosit bell.
bet si tois'xtfio (. „ .-_ ;;>oxLaBCiotioq oitlastifc aflv+ -rol :i}ai:x^^(l i^smoO
oiJ- "!v. .„ ., „.,. . . .00e,S?^^ to tJ^asiH^aq &s5A to ixoid-Biefiisnc
6iBB ^ovflCiO cc^ IlBl llad& BiHBbae'isb 9riC ..
jfBXl(f
Hid 9iiT .ftTuIiBi _-. . _ .:_..,■.._ ,. _,,..,
tOBTEtn. .L-io'i^Toor: '
.-.iCf B9YB^<I OS Ib IX id
..+ nf{ rJjiOOOB 38aiil{eX9
. .. a^fiisaislqicoo on-
^f- .a£ 'lot JE»s'\[:Bng 08--
■f.rv • rr i ;.i■[I■r>i•^;».o'T*•!■
.j^r^ ni CO.C
; --13* axximroXXoS- sfi noqjj aoexinercq 6iBB
5& x^otii^a at blB ', »• no. 0031^ ^daat
6X3.
to anrr r.Tj^rf
■«i ;i«'ri-ifT
ff/f
at the rate of |300.00 or more per month, ccsptimencing Tirith the 1st
day of January, 1927. That when the said amotint was paid down to
$25,000.00 the defendants agreed to convey said -oremises to the
plaintiffs by a warranty deed, free and clear of all encumbrances,
at which time the plaintiffs were to execute a note and trust deed
on said premises for that amount, payable in five years, said trust
deed to be a first and valid lien on said premises. It was fvirther
agreed that the special assessment then levied against said
premises for the improvement of the alley and any and all other
special assessments and taxes were to be paid by the plaintiffs
who also were obligated to carry at their own expense at all
times at least $25,000,00 of fire, v/indstorm and tornado
insurance in a reputable insurance company or companies satisfactory
to the defendants. Said policy or policies to be payable to Daisy
K, Magoon and to contain riders whereby the rights and interests
of the vendees should be recognized and protected. The contract
further provided that at the time of the delivery of the
deed, the defendants would furnish an abstract of title showing
merchantable title to the premises in Daisy K, Magoon,
m The bill of complaint further alleged that on September 26th,
1931, the defendants served a written notice on the pli intiffs to
the effect that there was due ijhe defendants under the terms of
said contract on the 15th day of September, 1931 the sun of
$1,970,24 and that the insurance policies on the premises were
unsatisfactory and that if said sum was not paid and new insurance
made satisfactory within thirty days, that the plaintiffs' rights
under said contract vrauld be forfeited. That v/ithin ^thirty days,
said plaintiffs offered to pay said s-um of money and comply with
the terms of said agreement but the defendants declined to accept
said offer and on October 29, 1931, b egan suit in forcible entry
and detainer against the plaintiffs, falsely pretending that the
plaintiffs were in default. It was then alleged that on the
-2-
tal adi^ dt l7f §flJ:oflefrm>oo trid-noifi 190 eiojK to 00.00S$ to ©*j3i erfu cffl
oJ iiwof) biaq asw jf'nyociB JbiBB sn'd" neifw d-MT .VS9I ^Y'SBirnst lo x^b
Off* od" aeaiiaQiCT 5iBa Yevaoo oi J&esigs adTtflfinelof) arid" 00,000,32$
,8sofiJ3idffi0one Us to ibsIo bns sell ,fi©9£i y^xibiibw s x^ sIltiatBlq
beeb cfsjJTid- f>nB 9*on b atuoexs ot eisvr atliialBlq ©rii esnti rioiriw d'A
Jsifid" 5133 , SISSY svil fli sIdjBY-Bq ,*m/oitiB i'srid- 10*5: seelaisiq blsa no
T.Qdtrust BBV! &1 .asainisiq biBQ no nsil bilBY bna inriil. & so od" boob
blBS JanjtBgB fisivei nsrid d-nsmaasaaB iBioaqe ©rid" JBjdd f>9©rcsfl
i&dio LLb bOB "^tiB bsm vsIIb sd& lo tnemevo'zqsii ed* lot aeeinmiq
a^tiiniBlq edt y<^ bisq ad o^ siaw aexB* bae a&a&E&aesaB Iflloaqs
IIb d-fi osaeqxe rnro lierid" &b y'C'Ibo o& bsta^tldo 9i©w oalB oxftr
oiJBniod- baB mio:^8bns.v7 ^qis.I lo 00.000,3S4 cfassl &b asinid-
YToJoB'iaJtd'Ba zelaequioo 10 Ynsqnioo soiiBrri/axii elcfBitjjqai b ni sonBXii/axii
Yaiea od" glcfBYsp -9ioiIof - . ifltnelef) arfd od-
ad-agisd'ai tos Rdxlj- ' i^tfeiaclT/ aToSii niBd-coo od br.B aoo^Blt ,X
d"OBid"noo erlT .fisfogJoiq Bhb f>eslnsoo9i ecf Jbli/oile aosbnov 6xic^ lo
ajld" to Y-iovJtIad orfd- to €«iid- arid- &a d-Brid bsJbxvoiq lerld-mt
snxworia ©Id-jij- to d-osid-ads ns dsin'mx bliiC'i atn.sbae'isb arid- ,5£<6f»
.11003BM .71 yaiBa ai aealinQiq edi od- el&i^ eldBtasdoiam
^dtdS. ledmejqee no .tBxW SessIlB ^erid-ijjt d-nislqaroo 10 Hid QdT
od- attiJiii: ^q arid- no ©oid-orr nsd-d-liw a £>9VT[ee ad-xtBfinetef) orld- ,ISCI
to aini©;^ odt lobw staBbn&tsb oildi &ub sbw eiexld- *Bri;l d-oett© ©dd^
to OTje odd L^QL ,'r9dxa9d-qe& to ybX) il*ei end no *oBX)-noo Blsa
©lew aeaJtcieiq ©rid no aoloiloq eoasiaaai: sdt tudt bas *S,OVe,I^.
eoaBTuaai wan boB blaq ton esw nine blBs 1i iBdi baa Yi^'^oetald-sann
aJifgli 'ettid-fliBlq odd- dBrid- ,3yb£) Y^i-trfd- niridlw Yiod-oBtald-BQ ©fifio
,aXBb Y*i-irfj^clatfiw d-BriT .og^T J.;3tiot od bluow d'oaid noo aisa U'
ri;flw YXqmoo fms x»«oxii to lana fii&a Y«cf od 5©ietto 3tti:*nJ:a£g
Jq&oofl o* boatLieb ainabaetsb ari^ dwcf dnaiKQs^B ftiBu to ejined- ©rid^
Yi^flo ©Xdlonot nl d-^ne nags cf ,le: tetfocfoO no bas istto bise
edt tad;t salbneietq Y-CealBt ,attIJnJ:B£q edS ^anlflgB rr©nJtfi*©6 bos
©rfjt no tBdi beaoIlB nerid- asw d"! .d-Instsb ai ©asv attlJniBlq
following day Anthony Ingrassia, a brother of the plaintiffs who
was an attorney, paid the defendants the sum of |2,147.83, which
included interest upon said sum of #1,970.24, together with ;ip54.55
expense incurred by defendants in bringing said forcible entry
and detainer suit and that shortly after the receipt of said sum
of money, Ezra P. Magoon, one of the defendants, informed the
plaintiffs that there had been a mistake in computing the balance
due the defendants and that to reduce the balance due the defendants
to 125,000,00 the correct amount was |18.01 more thai the plaintiffs
had paid. It was further alleged that on November 5, 1931, the
plaintiffs tendered that amount, together with a note for ^25,000.00
and a trust deed to secure the payment of the same, as provided
in the contract, and demanded from the defendants a warranty deed
to the premises described in the contract, said warranty deed to
be delivered by the defendants to the plaintiffs within three days
but that the defendants have wholly failed to make, execute and
deliver to the plaintiffs said deed, although the plaintiffs have
been at all times ready, willing and able to comply Virith all the
terms of said contract on their part to be performed, but the
defendants refuse to execute a deed and convey the premises as
they obligated themselves to do and have refused to dismiss the
forcible entry and detainer suit, contrary to their agreement.
A preliminary injunction was issued as orayed, and theretfffter
on August 12, 1932 an amended answer was filed by the defendants,
which admitted the execution of the contract of sale as set forth
in the bill of complaint and the institution of the forcible
entry and detainer suit to recover possession of the premises
i^Jvolved. It was averred in the amended ansvrer that there had
been default in the monthly payments under the contract so that
there was due at the time the forcible entry and detainer suit
was instituted approximately ;,32,000.00. The amended answer denied
that the complainants had paid the taxes and assessments as provid-
ed in the contract and denied that they had maintained policies of
-3-
S5.^a$ d;fiw i9d#s80* ,M.07etI|: "io aifs Mae iioqir *aeie*nJt 5©f>i;Io£ii:
l^^as aldloiot filBs snigxiirccf ai ziasbnateb ^cf Jbsiiuonl saaerrrs
edt boanotal ^ainsbae'leb sdi lo oii^ ,ii^-.o--'- • -i stcsS ^x>^-^^ -^
eoaBlad edi ^aliisqaco at ssfBcfaiic 3 nsscf &j3rf 9iedi tadt alli^xilGlrr
a;rxie5n8ls6 eil* evb aoaslBd sdt soubei o& isdi baa Biaebaeteb edt 1; .-
atti^aiBlq srit Aari* srtora 10, 81^; sbw Jruroisifl d^oannoo sri* 00,000,^'" r^
Slid- jisei ,0 isdfiis-7-oIl no JsdJ- fiessXIs ledi-Tul ajsw il ,r;x.'. ,
00.000«SS^ Tol ad-on b ds^ivsr ^axltf-ssod- ^d-auoiJifi ifBdrf- beiabaet all i*n /;■ r -
fiefilvoig 3B ,9i!rsE edt to ^^asmx^c sdt sitroea od tssb tajjid r
DasJb y;t iiBtiB?.' a s&aBbaeteb edi sioil beb£LBs:e>b orb tio&iinoc -"
od- beeb Y"''"--ei^-S'» bisB ^tOBitnoo edt ni bscfi^oaeb eaalinei'
a^fif) 98Txa- jciiid-lw sllidTiiBic Sid* od^ adxasfiaeleX) edi -^cf bsisvxx-
6nB eJi/Dsxs fO:£msi oi bQllet vlloifw avsil B^aBbaoleb edi isdi oi>,.
svfixf 3tt t&ai bLq edi d^odiLB ^b»eb bias stt liatalq edi oi lertleb
edi lis diiw Y-tqfifoc --' - 'is baa ^atlltv ,Yf)6ei asmii Us is a&e-'
edi iurj ^bemtoli' . . oi iinq itedi no iostiaoo bta& Io aime;'
88 aeaimerrg erfd^ yevnoo Dfts beeb a Qiaoexo oi esiJlei aJfiB&nels-
edi azLazib oi beau'is'z avsri bne 06 od^ asvlseffisrld fesdsgilcfo y^^'
..tnefiioetsB tisrld' oi- ^is'Si aoo ^iiue. laaxaiab baa x^ine r ' -^ ■-^■•ct
,3 3-ii3D0e1:86 Qdi vcf fieli'i eb^t lewana bBba^intB ob S59I ,SI *ai.>ii..j-- iiO
'•tT-,^ j»e ar. ©laa Io iOBiiaoo odi Io noidiroax© edi bQiiisnb" ••-■--
jid jtoacJl 9/f:f to aolinitiznt edi tgiB iatBLqmoo to Ilia r^M
aeaiineiq ea^ lo noieaoaaoq lovooe^c of diira isalBiab baa v
fiflrf £«©rfd iadi lewaxis 5«l>ae£(L8 scfd" ni beitevB aB- -^^ .''•'""
JBxItf oa ioa-^rtr^'^ ■ -'+ i^femr 8»ffl9mYflq Y-txfiffloci erfd^ n^ . j.i.x.j.. ■.;. c
itaa t0aiBto'D ., ._ ...L-J-ne eXdiotE'^'^ -■■'* orrii- arid- ds auJb asw eior.o
f)9in96 -r'.wrjr/^ ::r^'.rr^r.-.. ^ri- ,,,r..'^^. . ..^=.J flaixoigqB 5©^u*l:r-rr^ -t;
-biroin ^ ^ — ^^^, ^,^^_^„ _,^ jo^aq fiad siaBalBlqmoo e;i 0 ,'
Io RfiiO/rorr fSflrr r r- .trr ,- Rfti f^ or' -101+ + -. rf-! r-, .-. :- n .,» k r^ ,, , > ,^ ' ~ - n «f{:f fir '"'■
insurance in reputable insurance companies as provided in said
agreement and denied that within thirty days after September 26,
1931 the complainants had paid the amount mentioned in their bill
of complaint or that they had offered to pay the balance remaining
unpaid and denied that the complainants were ready, willing and able
to comply with the terms of said agreement and denied that either
of the defendants had ever informed the complainants that said sum
of |2,147.83 mentioned in the bill was accepted by them as the
total amount due. By their amended answer the defendants neither
admitted nor denied the allegations of the bill to the effect that
the complainants had tendered notes and a trust deed as provided
by the contract, but averred that if said notes and trust deed
were tendered, the trust deed v/as not a first and valid lien upon
said prranises. In the answer it was farther averred that the
insurance policies placed by the complainants upon the property
were not satisfactory, as some of the policies were written by
companies not members of the Board of National Fire Underwriters
and that there was one policy for ^20,000.00 written in a mutual
company, the solvency of vhich was unknown to the defendants, and
that the defendants req.uested of the complainants that not more
than ^5,000.0« insurance be placed in any one company. It ??as further
alleged that in January, 1931 the ccmplainants handed a policy to
the defendants, i^toereupon the defendants investigated the ccmpany
that had written said policy and returned the same to the complain-
ants, stating that the policy was unsatisfactory. That before that
time the policy of insurance which the complainants had procured had
been cancelled because the complainants had negledted and failed
to pay the premiums thereon, and because of these facts the defendants
insisted that the premiums be paid and evidence of such paymentx
furnished to the defendants bpit the complainants refused and neglected
to do so. It was further alleged that at one time a ^^olicy was
cancelled and that the premises were without insurance for several
-4-
blBe nl fiefjjtvoiq as aelasqtuoo eoaaiUBal elds^uqat nt eonaiuaAJ
,3S laddscfaea io^Ib axab xiS^ildi rtlilifiw i bA^ beiasb fens d" aejnedolii
Hid ileidi ffl Sacojtd-ncair: *nifOin.e srit bxm had siaAaiBiqssoo ©ri* ISSi
sniniBffisi eoasLsd 9dt yjaq o* beistlo J&sxi ysi"*^ J- erf* 10 ialBiqmoo Ic
afcfB bxiB aniIXx\7 tYbsei slow adrtsniBlqiKoo sd* S'add" beiasb baa blBqai.
isdtie tBij betasb baa Jnacieeis ( IS Mtw xlqwoo o3
ms3 blBc. ;tBdS ad-nflniBlqifioo odt besiictat levs bed s,^a&baat&b edS Ic
sdi as ftreriJ Ycf ^stqsooB saw Hid axi.t ax Saxfoid-naai 58. 7*1, S^ tc
lediien siaBbneteb srfd- iswanB J&sJbusffDB itsdi' x^ ,&ub imiomB l&ioi
*Bii* cfostia ©rW o:i- Hid odi I0 aaotte^sISB aifi}' bexjjef) ion b&titmbi
feefiivorrg as bssft isnii a bna aod"Oii bsis&.aed' feM a ^fiiBnis I qic 00 eil;
bssS *3jj-id- b£iB p.etoa blBs, xi d-srid- b&iiByrB ^ud ^toBiinoo edt v;<
aoqif aeil blLnv bas Jaiil' b ioa asw bseb ^sx/iJ erfd" ,I)aiel)aed" ©•rai
9x{d" tsifd beitevB lediisJl ai5w di iswsrtc edi al .assiiaeiqr filai
Y*i9(rorcg edt noqu siaBaislqssoo edi x^ beOBLq aeiolLoc gonfixtrart.
\:d asJtxTw o*i9W asxoiXoq- ©dd' I0 fcjjioa a^ ,Yio*0jSl5id'fia .ton oisi
3'i0d"ii>n:o£)aU eilH iBaoxd'jsTi to £>icoS eni "io aisdmain d-oii aeinaqiao!
iBuiism f? at aeHlTn 00,000,0S# loi xotloq e/io sbt? otsflJ Jsrid- ba^
baB ^st iifibaetab edi oi n.\'Jon:dnu esw rfoi; onsvl oa sild" ,YaogjfiOi
oTDin don *Bxld- ad'nsnifllgnoo orfd to bai-fyejjj.ai a;;xii3&-iele.b 6ifd- isA
lodiiul zayi il .Tfn^qiroo sno yne ni fteoxv onBifjp.xii 00. 000, 8$ QbA
od- YO-t-£c<<T e behnad st atmlBlqsso 0 9d& XiSSI ,-v;i£iu«bT* ni dBild- be^elL
Xaaqisoo arfd bad-Bgid-aavfli sdriBfinetsi) erfd nogjtreis r&? ^ad-nsbxistsl) ©il;
-nifilqinoo ed^i ot ©aiBa srid- beaiuiTQi fine YO-tXof^T ^-i^sa nsd-txTw fisri d-^d;
d-sxfd- 9iol9d c^3jrfT .yiod-OBtaid-Baxix/ sbw yoiXoq »xf;t d-flrfd" jyti^Bd-B.ad-o:
bail bsnusoiq Ssri ad-iisniBlgflroo erid lioirl?/ oonBiirani lo Y^xlog ©ilvr sjli
bellet fins f)ed-59J>iert bsri 3;^^B^iB^.qfiIoo ©rid- ostfBOdd fisIIaonBO xiaw
adnafiaetsfi add- ad-oat ©aeiid to oajjBoec f>0B .noeierl* a.&wiiaeiq exid" X'^ o
Kin&niXBq rioue to soneh.cv© fine bxaq od sMWXflKrrg 9 rid" d-acid- f>f>d-«ian
fcsldelsen bns bewlB-i staBalBlqmoo eiid" d-0<f 3d-;iBbn9t©b adt oi badsta-m'
oilorj fl siBicr ono d-s *axf* J&aseXIfi iBdftsjJ. aaw d"! .oa ob 01
iBtevea lot ©onBro/ani iuodtXw ©lew aea im©ig ©rfd- *B.;.t bus J^siXaon*
days and that after the beginning of the forcible entry and detainer
suit, the complainants sent, by nail, to the defendants a policy
which before that time the defendants had rejected. It was further
alleged that prior to November 29, 1921, the defendants, being
dissatisfied with the insurance as placed upon said property by the
complainants, caused policies to be \7ritten in companies satisfactory
to them, at an expense of |134.00, which the complainants have
neglected and refused to pa.y. Upon the issues so made by the
original bill and amended answer, a hearing v;-as had before the
Chancellor on I.Iarch 29th, 30th and 31st, 1933 and at the conclusion
of the evidence, the cause was taken under advisement. Evidently
in July, 1933, the court made a ruling of some kind in connection
with this case, but just what it Yias is not disclosed by the record,
but on July 7, 1933, leave was granted the defendants to file a
cross bill Instanter and an ordeir was entered to the effect that
the original bill should stand as an answer to said cross-bill and
further evidence was heard by the Chancellor on September 14, 1933.
On October 31, 1933, an order Bigned by the Chancellor was entered,
which recited that the Chancellor gave a ruling in this case in
July, 1933 which the Chancellor thought was in writing and had been
delivered to the parties or to the clerk. This order then stated
that the court was not going to vacate, change or contradict that
ruling. The order then recited that the matter came on to be heard
by the court on October 31, 1933 upon the motion of the defendants
to appoint a receiver, and upon a cross motion of the original
complainants for a finding that the defendants had failed to deliver
a deed to the property free and clear of any encumbrance and that the
cause be referred to the Master to state an account. The court
denied the cross motion, but directed that within the next ten
days the parties get together and carry out all of the terms of
the contract, that the general taxes due against the property and
the special assessments and back interest to the amount of .)1800.00
-5-
i^niBieli bas ^tas slcfiaiol edi "to anlniijfes©*^ ®ri;f n&tliB *arfJ l^aa aijjBl)
larid-nwl efiw tl .fie-toe^si I)jarf aJnsfcnalel) art* &Biit i a^ eiolecf doMw
aniad ^e&aBBa&teb arW »I5ei ,9S lorfKievoJI ot toiiiq ;tadt fiaasIXe
Bilj yq' Yit':£9Q0i(T 6x.ea noqw ^eoslq ae eorfBiir'ini srld- dJ-jtw Jbeilexa-fier. ifi
YTotoBlBld-fle esinBqiHoo ni :-t9*i-iT.7 otf oi saioiXoq I>aei;BO ,a*aafixflXcrinoc
avBff 8*iiB0i£5 Igjnoo erf* fioMw ^OO.^SXis; "io aanoqxa m:> ^b ^meA'^ oi
ari.t Yd" efifinr 03 aejjaai an* xioqU .^aq o^f ha'siAoi bUB f>ai-oeXswi
arid aioSjad Jojsil a^w sflltcsarl s ,i©wene 5©5n9iH-5 bixa iLtd laais^XM
notaiilonoo Qdi d-s bus i^cKjZ ,d-aI5 Iif;3 rfd-OS ,rfd-es xfoijaM no loXIaa^jaiil
XlfaeblrT ,i-ami&&£'vbB lebois ae'ABi 3bw eeyso arf^ ,aonaSivs arid- 'tc
aoifOBonoo ai bati emoa to shIIi/t: b 9l)Si2 cfiwQO ail^ ,5Sei <'\C-'^T» a,
,£?iooa*i 9ri* ^d" feeaoIosiS *on ai sbw ti tadm isifl ^ud ,aaBo aid* cid"ii
B alil o# aS rudb rie'isb aricf bad-xieig aaw evB@I ,S?-i(?I ,V yIj/w no ;tw<
d-Bri* j-oa"ils arid- o* fjeisd'ae sbw rEefinco na Jbiis lad-flBd-acl Lli.6 aaon:':
finfi Ilid-aeoTo f^iee od" 'lawarcs ns ai; Daed-a X>Ii,'oris ILXd IjsaJtaiio aii;
.S58X jl'I TadBiad-oao no loIIaooBiiO aid' x<i biB&ii asw eorsafiivs leri^iu'
^beteiae saw loIXeonBriO arid- T^d' besi:^t« %ebio as ,SSei ,15 ladod^oO xii
ai aeBO a±il? ni gallxfi a evBg loLCaonaiiO adi i^dt b&ti09i ifoJUfe
nead bBd bap s^cid^xiw ni bbw id^sJOdH^ loIIsonBriO edt doidv 5Sei ,TjHfl
iiedBd-a carid- i©&io eidT .sfrrelo arid od 10 aaxd^iBq odd" od" Jbeievxia
d-fifid" d'oJiLiB'Xdaoo 10 e^m^o tSd-isoav oj ^lo;^^ d'on aav/ Jiuoo add- d^BXi
btB&d sd od- rto eraao lad-d-BE arid- tsdi Bed-JteeT naiid" le&io odT ,^z£Lu
QtaBbaelQb arid- to aoitom ad* noqt; S5ei ,IS •radod'oG no d-ouoo arid- x
iBiilalTco arid- to noid-OM aeoio a aoqu bas ,T:®vi©o©*r a taloqtiB o
tMrfilftb od- belJLst bi&i si riabiteteb adif isaii jaii&nit b -wjII s^caajtBlqinc
erid^ jBdt tm.B aOiiBidmtrone \:nB to rtaelo 6xia oa-xt -^d-^eqoiq axld- od" i>©e.-
d-ii/oo sdT .diUfoooe na etat» ot rtadaMi ©ri* od" ioinatau arf ,»>«iwa
rte* d-jcan add iitdtl*r i Bd& batoeisb ino ^aoiSosa. eeoio exit j&eina
to aari!** arid^ to ILa duo yx'xbo &xifl iad*9*p^oJ *9j^ aoid^isq ©jEtiT btjb
ba» Td"t»qoitq ad* ^erxios* ©jj£> a©x«* laiansja ad* dad* ,*©B!id-xioo ad
00.008X4 to *X£L.ofli;3 ad* o* *8©r£e*ci JlOBcf 5:ii3 3*BoiaBaoeefl Isioeqe aii
-e-
should be paid by the original coraplainants and that they should
execute the note and trust deed as provided by the contract and
that the defendants should execute a proper deed of conveyance and
cause the mortgage upon the premises to be released and that the
several instruments be made, executed delivered and passed from
one party to the other and with the clerk of the Circuit Court of
V/innebago County within ten days from this date. It was further decreed
that if said order was not carried out within ten days that then the
court would appoint a receiver for the piroperty and proceed to wind
up the differences between the parties to the litigation.
The record further discloses that on November 10, 1933, the
original complainants k filed in the trial court two motions, one
to dismiss their suit and the other to strike from the files the
cross bill of the defendants.
On November 22, 1933 the court entered a further order finding
that the order of October 31, 1933 ?/as not corjplied with by the
original complainants and the court appointed John Fishdick
receiver of the property involved herein. The following day the
receiver qualified. On December 15, 1935 Fishdick resigned as
receiver and Ezra P. Magoon was appointed his successor. Nothing
further seems'to have been done until September 14, 1934 when the
court heard evidence in support of and in opposition to the motion
of the original complainants to strike from the files the cross bill
of the defendants. On December 30, 1934 a decree was entered which
found that on December 1, 1926 the parties to this litigation entered
into the contract set forth in the original bill of compOaint. That on
September 15, 1931 the defendants claimed the plaintiffs were in
defaiilt in making the payments provided by the contract in the sum
of 11970.24 and also that the plaintiffs v/ere in default in not
furnishing to the defendants insurance policies as provided in the
contract. That on September 26, 1931, the defendants gave to the
plaintiffs written notice of said defaults and thereafter began suit
-6-
bluoda T^dn- tBiit baa etaBn 1b Lqmoa laatsi'^o od^ x6 bteq sd blifoA
baB io.si^^noo ariJ y*^ bebiro'iq sb beeb '^amt baa eioa adi &&isoey.
boB aoaBxavaoo "to fcaefe teqoaq s eJxiOsxe blucdn ainebneteb ed:} tar.
9dt fBdt 6iiJ6 l>oBJBeIai ©d o* a3Blx!®nfr ©xtf no<jsj esBS*iojn erf* esfirjE
to J-ii/oO cJ-isroiiO sild^ lo sfielo Sifi- ffd-iw 6iie iaif*o siU ot ^^iwr ©f
fcasaosb i®ii;tia-]: b3-.v tl .©.-tai! sMt laoil: a-'?:i!f. mt atd&lw Y<tm/oO ossdouirJ
-3jlt nedi^ d-BXl;t ayBf) flat nMcTJ: w -J-iro J5eii-XB0 :fofi aaw Trebio 5xbr 1:1 tix
6nlw c* bseooic bn^^s yrf-ieqcxiq sxl* lol rerleoei e d-nloqqB feli/ow *iw(
• noWflSiifil 9il^ o^ 39ii-^fig arid aeevt&d seoaBTatttb ©do
erf* ,5S9i «0I isdmsTcT^ fio tfijlJ aeaoloaife laritfiirl biooei sdT
©no ,anold-C'xrt cwd" d-oijoo Isiirf- eif«t iii fislil M &&aaabilqm.oo Xsfiisi:'
arid- aeS.n. sd^ flK>'£l asiJtid'a oj ledio sdt bai.- JiiJE 'lieild- aeiflxa lij
.3:}nfl&iie're6 sitf lo liid aao*
sdt -vjd ild-jiw ballqsioc ioa sbw SSei ,15 isdoio to laJbio eri;? tjBJ
jIoxMei:'^ udoX. bad-nioqqB tiuoo oil;!' boB st a e^IbI c^moQ lanlgh
9iiJ Y^6 vnlwoXIol OilT .nieisri fi-oYlovrii Y^iscroig edi to i9VleO<
SB ftengieei z'.olbd^i% SC91 ,dl iedfi5»c©a rrO .belttLBUp levieo'.
gniriioH .lOEseooija axri be&atoqqB eisr /ioojbbM .^ jstsS'^ bae isvleo!
eriJ flodvT J^sei ,J^I i9QGisd-qsS lid-nu saofi na©<f ovsri o* aureda isxirf'ij
xtoitorc 9rfJ od" no W Ja oggo nlMs lo Jiocrgira ni eoToBiv© feijsed *tu<
LLld eeorro erl^ aeli^: sild' bjdiI ssIxi^s o;t s^fnsnislginoo iBfllgiao arid- '
rioirir 5oi9d-as bbw ootoeb b i><'=]ei ,05 lotfaaaoea aO .edrtB^fleleft arii
fieiai-na aoi d bj* J; .+ i I atdi oi aeiJtecr arid- dSei ,1 isdiaaosG no d-ad^ fixu/.
no *BriT ,d-xiiji£qmoo ic Hid iBniriiio 9ri;t ni rfifTol d-ea :fOBiinoo eri.t ojfj
III eT0w attitalBlq Bdi bexttiBlo ad-iiBftnelefc arid- IfiQL ,21 -is-dMo^q!
flwa ad* rrJ: ioBi&£\oo edit ^d befiivoirr ad-flaffl^jaq arftt Sfl-t^fjam ni JXitb^k
*oo ax -^LuBtab ai aiew attUatBlq arid- *Bd* oalB I)Cb :^S.OV
ad* Hi &e61voiq bb Goioilog ©oxtBii/Bfli s-.i.nsba&teb edf od" sairislriii
add^ o* oyag f?;fnB6n©l©6 add" ,1291 ,6S Tred/aetfg©^; nc *adT .toBiia<
tlus. xiegsd 'raJlBaiori* baa stliSBtsb biss to eoitoa Re»tttw atll^nlBJ
in forcible entry and detainer to recover possession of the property-
described in the contract. That thereafter the plaintiffs tendered
to the defendants $2,147.83, which included certain expenses of de-
fendants, and the defendants received the same with the understanding
that the amount of the principal end interest due on said contract
should be refigured and that if there was any error therein, either party
ifould correct the same. That there was an error in figuring the
Interest as there was in fact due the defendants ;|2,220.39, instead
Qf $2,147.85, said error amounting to the sum of |7?.5d. That on
STovember 1, 1931, the plaintiffs had not procured insurance in
iccordanoe with the terms of the contract and the defendants were
sompelled to and did pnocure said insurance. That tt the time of the
Institution of this suit (November 21, 1931), it was tie duty of the
>laintiffs to pay said sim of |.'72.56 and also to pay certain special
issessraents on said property in the sun of |p282.03, and also to execute
md deliver a note or notes aegress-ting ;|25,000.00 and to secure the
lame by a mortgage or deed of trust, y/hich would be a first lien on
ihe premises described in the contract. That the execution and
elivery of said notes snd trust deeds were to be concurrent with the
(xecution by the defendants to the plaintiffs of a deec". tc the
iremises in said contract described. That the pJaintiffs did not
lay the taxes for the years 1931 and 1932 as they were recuired to
Lo hj the contract and that the taxes, including interest and costs
'or the year 1931, amounted to tho suri of :i^572.86 and that at the
ilme the decree was rendered amounted, v;ith interest and penalty,
;o §744.78. That the taxes for the year 1952, with cost and interest
mounted to f'482.97 and that with interest and the penalty amounted,
it the time otft the decree was entered, to :;j550.54. That the 1933 taxes
lad not been paid by the plaintiffs and that with cost and interest
ihey amounted to |374,60, That the premises were encumbered to secure
;he payment of |20,000,00 with interest, which is past due, but which
;he defendants have at all times been ready, willing and able to
'enew or caused to be released if the plaintiffs had complied with
;heir part of the contract. That before the institution of this
-7-
XiiBcicnq sdi 1c aoiaaeaaoq isvooei ©3" i»at&teb baa T^fc®
hatebaai atli^xxijalg edt letlBOi&dt JMT .toBiiaoo edt n.;
-9b to Boaixsqx© nls4iijo bebuLoni xioifiw ,^8.7M,S$ H^ijBfuid'iei:
6B©;faaJ: ,ec , '^baelob aiii esib to&l • eiaiit b.^ Jae j
odt to e«tt.i^ ad* *,i iad'x .^oaensjaai Lisa aiuooaq M6 ban od" £>sXI;
9ffJ lo -^ut aiJ' a£!v7 .JL ,(I5€''I , IS ladaevoH) ;txt;a aiilt lo .
Isioeqs nia^fieo Y^'i ^^ 03l£i ba& 5o,SV§ Ic iisjs bins \£'
eisjoexQ oS oaS. , JO.SSS^ to Ease ' ■^^Tx^qontq; Jblea iio fcSii&iiiaa**.
9i:« 9TUT. :i> 0O,OOO,SS| sni4.4^S'xaiiB aetf-Ofl to aic
no noiX -' Slxrow d^l'. t ' 'jgi-ad-^o
fjXLs fioi^J^ii&dx-a 3di d"BiIT ,i"OjD'iJ ■• )e<i.tioa9J& escsiiuei.
9rf.j d^iw d^ue'i'n/oxipo acf o* qiqv aJb-^of) TSi/'_.; ixib o9;J-on bias '
edt o* 5e95 s lo sll^nislq ad* oi- a^fnebaolafi eil;f ^Q ^lOiuiio
*o.i bib eYtiiat etq eri;!' jsil? .i)soJ;i03a& itoflT^noo Blsa ai aaajtm
'■upa'i fcidw ^ddd- QB 3Sei i>fiB I5P '
oai- -^ . .SV?4 Ic J-/i//Oiru:i ; ■
f39i9;*rxi CM-i.i ».iOv> xlj-in ,2561 laey artt idl aexBd" era- ta£fT .
,68;f£u;otte ^tLcft %nB .taeioJni: rWitr tadt br,a V9,?.
39XBt S5G.': 9Sli .><i.uSS^ o^ jfif-'if^d-na saw Qe*ro96 edi ^:c
t^eifi^al bi^L i&uo dtlv :tBdJt bae al"
9ra$o»a oi bem , ..^s'S^, o* bi
doidW Ji/C' , ^j^9'£i>iL . Jo iiw
o^ 3lu£i ba.2, ■^iUlllw ^Xjjr.
dttw beilqmoo bad all j:rf/iJ: alq «iIJ^ , ^-a-j. ba oJ L»axiBO ^o ww
suit, the plaintiffs did not pay said sum of .^72.56, did not pay the
special taxes which were then a lien on said property in the svun of
$282.03, and did not execute or offer to deliver a note or notes
aggregating $25,000.00 and did not execute or offer to execute a
trust deed on said property to secure the pajnnents of said notes
and did not procure insurance on said premises in accordance with the
terms of said contract. That during the progress of the trial of this
proceeding, the plaintiffs claimed that they would carry out the
terms of the contract and that it vras on accoiint of said claim of the
plaintiffs and for the purpose of partially determining aaid cause
that the coxirt entered the order herein referred to on October 31,
1933. That after the entry of the order on October 31, 1933, the
at
defendants were/all times during the ten day period therein provided
ready, willing and able to fully and completely perform said order
on their part, but that the plaintiffs, at the time of the institution
of this suit, had not performed their part of said contract, and
were therefore not entitled to specific performance.
The decree further found that the defendants filed herein a
cross bill by leave of court, and that by and with the consent of
the plaintiffs, it had been ordered by the court that said original
bill should stand as the answer to said cross-bill. That said cross
bill prayed the court to find that on September 26, 1931, the
plaintiffs were in default in the performance of the terms of said
contract and were so in default on October 29, iS 1931 and have
continued to be in default to the present time, and to find that the
plaintiffs have failed to pay special assessments which were a lien on
said premises and have failed to pay interest on the principal sum remain-
ing unpaid and have failed to pay certain installments upon the principal
sum. The decree also found that said cross bill also prayed for a
decree finding that the defendants were entitled to possessL on of the
premises, and that the court should ascertain the amount of principal
and interest due the defendants and should order the plaintiffs to pay
the same and provide that upon a failure so to pay such amount that the
-8-
sdt YS<T 5^00. .5rfi ,&•=?. S^£ lo rsa/a ft-l-jwi rs?*" *«>e bib Bttlialnlq 9At ^tM9
to misc e: ''Tiq biBS ac J' eTev*- rioixiw eexBd" XbIo
89,.; If:•T^'"(^^ od^ la"! >^ on bib bas ,eO»S88
B 9^i;o©-T8 od- 19'i.. .JJJ09X9 c!')-'' 5.t5 btiQ O0.000,es|; sxii*«se'XS»
aed-oji OJSc. lo a,-tn©arY6q &M ©if vJiscjo-j.' no beob iavn.
airf»f to Ir?:'". s>T.go*rq erf* S^J^^wb . xe
3X1,; . v:-"-^ft ;t-e'T.,+ :)efr ' ttn^jglq eri* ,gn):6oeooT£
erfcT to itiiBl. , ,, . ofii^tfloo ari: le
sauBo biess :"rjcnJ:'ff'ie;}'of) -zHbI^- . aaoqitr-. /j: fiiie 3ltJ:;faJb8J
,15 led. jQiiatsrr xiieisil is&io 9dt be>'rQ-^no t'njoo 9di drn
edt tS59I ,15 lecfo^oO no l&bio eff.+ to ■"••t^ - ;s*tB &BdT ,E5^
f)©5ivoig ateied-^ hoi-raq x^^ nsv .\3i©w B^a&bnets
isfiio biea rTTotieq "t-etolqnror it^IcfB bsm solIXiw ,Y^fl*
iioJ:d-ir;J'±d-jini exlJ- to orti , tti^jKifil^ erf* tudi o'ifd ,d'iscr liorf?
fin^j ^toB1tt^co blB& to d-isq lierft fteanotieg *on bud ,*li;3 sirfi" i
.©onemnotisq oitixosge o* fioIitUns ton enotoioild- eie
B nieiaxi belli ataBbaeleb ed^ *.6riJ- bawot -i^d&iut eeioefi an'T
to rfrieefioo erf* dirn Jbns y<^ *sfE* baa ,^ijl;oo to ')TboI Tjd' ILld aao*:
iBfilslio f>f.'?5 t.^rf* Ji/roo 9rf* "^d fieieSio fE^ocT 5e(' ) .•: .attlJnifllq ex
36010 blB' . Lid-sao-xo fjlse oJ- 'nr^f- Dascfa dlxjoris II J
9x1* ,IfiP.r ,6'^'. i9crrfi0*q©ci no ;teil;i . . jrjjoo erf* fieyBiq IIJ
bias to auri xo sonBmrtotiaci ado ni tflifBte.O ni eisw attx^niaj
9VBd 5ns LBQl ftf,?S ■iecfo*oO no *Ii:rfit9& nx o8 slow baB *0JST:*flc
»ri* *a£* f>fli:t oJ- 6«tb ,offl.L* *n©.'5ei(T eri* o* jiusteb ni ad o* bsisattai
flo nelf: £ ereyr dolrfw e*n9fflaa9eaB Isioecz x^^' o* beilBtt er&d attltfalsi
-fliBEtei isisjB LBqlontir erf* no *39i©*ffj: -^Brr o,f feolist evF,ri finB asp.xflreig f>ij
lBcr2onii<f 9x1* noqif a*n9xrLClB*enl alB*i90 xsq o* BellBt avBd 6xib fiiBqaw gi
B Tol '^^jTfni'T OB r«» Iljrrf sf:oTo bias *sri* £>xtDot oalfi seiooL edt ,m
erf* to no i xaw 8*nB&n©t9J!» orftf cTrrf* gnlftnlt eeios
xBcrlonlTfj lo *nt.fom/> ©rid flXrt*'r©oaB filworfri *'xx/c -id* Jbns .aealm*':
tag o* ettjt*flifllq eri* leftio fiXixorfn 6.tp> a*n,'?6aoteB (wi* 9ub *aoT:e*fli Ac
ori* **rf* tmjoeiB dons x»<f o* oa ex srf* ©filvoTa Bub axBtes e£
plaintiffs be decreed to have no further interest in the premisen.
The decree then found that the defendants v/ere entitled tc the
relief so prayed for in their cross-bill and fomid that at tne time
the decree was entered there vvas due the defendants from the plaintiffs
the sum of ^25,000.00 principal and |4,579.45 interest thereon,
together with the sura of |282,03 special assessments, together with
#45.72 interest thereon, also the sma. of t.1295.32 taxes for the
years 1931 and 1932, also the sum of $72.56, the error above referred
to, together with interest thereon at six per cent, amounting to ^i:13.28,
and also for taxes for the year 1933 axaounting to ■^374. 60, that the
total of said sums aggregate |31, 662.95, which amount the court
ordered the plaintiffs to pay the defendants, together with 5;,.' interest
from the date of the decree. The decree then provided that the
plaintiffs may, at their option, satisfy said decree and pay said
sum in accordance with one of the followiog methods: First, that
within ninety days from the date of the decree the plaintiffs may
redeem said property by the payment of f 31, 56 2. 96, together with
interest thereon at the rate of five per cent until paid. That upon
the payment of said sum the defendants are directed to convoy to the
plaintiffs by warranty deed said property, free and clear of all
enc\imbrances. Second: That the plaintiffs laay execute and deliver to
the defendants promissory note or notes signed by themselves and
their wives for the sum of ;ia25,000.00 payable in five years from date,
with interest at six per cent, payable sem.i -annually, said notes to be
in such denominations as the defendants may elect and to execute and
deliver to the defendants a trust deed to such trustee as the defendants
may elect, said trust deed to be in the usual form used in '.Yinnebago
County, Illinois, signed by the plaintiffs and their wives, which said
trust deed sholl be a first lien upon said property so far as any act
or omission of the plaintiffs is concerned, and that at the same time
the plaintiffs sball pay to the defendants the sum of §6,662.96 in
cash and upon the execution and delivery of said instruments and the
payment of said sums, the defendants were directed to execute and
-9-
Bd<i^ oi hei^i^ao eisw e^tasbifolsij edti ^&zlt bmioJ. a9£ii eeioeb srf'T
eial^- sifsf ;tB *a£(if brvjol baE XlJ:tf-*aoi5 -ticili- xii lol boTtBrtg 03 ^ejtli
alliJaijjIq fM'^ /coiT: aJ'jfiBXJaa'iaij ei(* ou£> &sn eiacii boia-iao asw 08tco©£> sj
,jio©Tal;f tas-xsd-flj: S:^.8V3,:H ^jOR Laqloal'xq G0.000,3S^^ lo msQ &i
beiietBi 6Vocf3 rcoi^e srf-J- ,33.??'Pf to icus orid- oaljB ,SSei bns 1561 aiPv
,8S«5Iii}; o* •saiiau&ss. , log xia &b aosiesM isai&iat dil'Jtw •I9ri;f©j9i0* .
ori;|- ^Brf;? ,06,>^| o* ^nt:ffWosm ^^91 ibbx orit 10I &eKBt lot oals hi
tiuoo 9riJ^ trmotRB iCoixiw « 56.368 ,115?"; q^b^qi^^r aco/B fcisa lo led-
taeiBiai c ii;jrr;! lorf^ego* ,3tnB&ii3l95 atit Y-sq" 03- alll^J'jiiBlq erid" b&i9b
©rid- ^Brf* Jb9£»iTOiq neriJ eeioab SifT .eattoafi 91IJ lo e^flfi auld' a©
6iB8 YBa boB esioeb bisa Y^eiJaa t.aoi;fqo tiaifc^ ;ti3 tYBXff allltfcie
^sd.d' ,uf:.tii" :af!orictsii( s^^iwollol arl;? lo ©no £l;fiw 9oajsi)icooB xti ai
YBffi allid'HisIe: ©i£* oaoioefi oxirf- lo ainb sxiJ tnoil ayisf) x^^o.i£i aidS
[if hi imliQ^oi ^^Q,^QB^l€f lo :taos5£XB.o eiii y;d vfrsqatq hiB& me&b
noqu JzsiiT ,btBq litnv Jneo rceq evil lo e&kfi arid" j-jb noensild- tfaaisd-
ori* ot TjovfiOG a>l fisij-oeiif) eiB ad-itebHslof) or[;f siufi ftJise lo d-nsiCYBg s
lift lo -xcelo £«£« soil j-^TScfOia Jbisa be&b Y^^^^^iaw Ycf alli;faJ:£
of i9TJ:Iet f>nii eiJ'uosx© ysbi sllidniBlIq ejl* tsitiT :6flc»e8 .aooBBncfntiro
fcas eevloairferfd" y^ i^onsia astfurr 10 sJoxt y^oRe/xsioifT erf^nsfinslBf) a
talab CToil sijboy evil xii &XcfAYS<T 00,OGO,SS^: lo mre or'd- rcol aeviw iJts
ad od- es^oR bxse ,Y-t-Ja»fla£>-/ffl«B e/cfsY^cf «*ne9 tec x'ra *b .teeifMfni i^:+
6xtB a*x/oex0 oJ- 6iii$ d-aaXtj Y£>Cf 8*iU(&nele5 od* as B«otJf»nirrtoxi©ib xlaur.
8*iiBfca&l©5 3tii aa s&d-atfii doue o;^ b9&b tevi^ r. sdT£«.&fi©lo6 oiH ot ibyIxL
o?>flO©:falV ni benu mtol iBireif o;{;f ui ad oiT jbaeb rfaifi;^ fiiBS ^tv^La ^
6j:«e ifoiilw ,Baviw rledi bn& 'ittitaii »lq eiii ^tf bB^t^ , e ionJt Ull ^^lUf
#3B Yflfi 8« XBl 0& Y^Ttacroicf b iBe nocfif rraJtX jTaill b ad Xlsrfa b«»b isa
tuilf «fflS3 ©rf* fQ JjBxfJ- f)i3j8 ,i&dnrteoiioo bX alLWnlaXg add" lo noiaaJ:flio
fli d«,S6d,d4 1« awa art* e*ae5rtele6 bA& of xbki LIbAb, all l^fnlBlg ©
edi bae BtnemjiStial feljae lo x^erlSJab i>tt» aotSu&exe edi aoqu bixa dsk
baa 94fxo»x9 oit b^io^iib ©law a*ru?>5a©l©6 axl;r ,8au;a &JtB8 lo iaam
deliver to the plaintiffs a warranty deed for said preraises, free end
clear of ell Gncumbrances except said truct deed for i|2i3,000.00. Third:
The plaintiffs may aGsume the encxonhrance of $20,000,00 now on said
premises, pay all tares and special assessments up to tiac date and
to pay to the defendants the sum of |4,665.r'9, v;hich is the interest
now due on the $25,000,00 aforementioned in said decree, together v.'ith
the cum of $72.56 and interest as before mentioned and five per cent
from the date of the decree until said sum is paid. It v/as further
ordered that in the event the plaintiffs pay as provided in this
paragraph of the decree, tM t the defendants shall deliver to the
plaintiffs a warranty deed for said premises, subject to the encumbrance
of $20,000,00 now on said premises, and subject also to the tazes and
special assessments remaining unpaid.
The decree further provided that in the event the plaintiffs
failed to satisfy, as aforesaid, said sum of |31, 362,96, within
ninety days from the date of the decree, that then the premises be
sold at public auction upon the same notice as required by lav>r for
sale of real estate under the execution. The decree then appointed
a special master to execute the decree and directed that the costs be
taxed against the plaintiffs and ordered that the defendants be let
into possession of the premises. It is from this decree that the
plaintiffs in the orisJ.nal bill prosecu;^ this appeal.
The original bill alleged that on October 30, 1931, the day after
the forcible entry and detainer suit :¥as instituted by appellees, that
appellants paid and appellees accepted ;(;21-i7.83 and that on 'November
5, 1931 appellants tendered to appellees the further sum of 313,01 (the
amount which it was alleged appellees insisted was necessary to reduce
the balance due tb.em to $25,000,00), together --Ith a note for ^25,000,00
and trust deed to secure the payment of the same and demanded from
appellees the deed as provided by the contract. The original bill
fiirther alleged that appellants had been at all times ready, willing
and able to comply with all the terms of the contract upon their part
to be performed. The answer put these averments in issue and denied
-10-
52b3 no won 00. GOO, 0S$ tc aonBicfifajoiTO oxld- ©arossa -^sar' ait f;-* ■'•' f- r^r
5iiB 9tfi& ai&t o;f qir staawEaaasB Isfoaga ftns BexBt LIB ^Bv, ,.^..li-a£
ifoiw leiltsscf ,86-is©5 f>lea itj: dartol^agm'^-XDlfi Ot>,000,SSt orit no Btjh '■
Sid* ci --—:-.- 3B YJSfl atlitfulBlg ©ri* trtero edf al tBOt fianaJ
erid- oJ T.-.^v. -T - IlBrie acTnsfifteleft erf* S B^t ,93iosfi add- T:o Aciargs'
soaBidmnoae, 9xl-J- o* toettfiJ'a «3saJ:jB0iq S-'isa 'lol B©95 -c:fnBmBW b attttch
bsiB aaxBi c:'f ^' '^'""-^ -;--'<x;3 f)fiB ^eeaimsnq blBs no won 00,000<OS$
ol.v^uu^iDj.., c=L,., j.i-o'v:.. Slid- ai c^£^£d• Detivoic lorfd-ir/'i ©91035 ailT
atd^siv (de.Sdc: jISv Jo cri/a Diss , bisssioljs as ,-^ai:tB8 ct b&L
dcf BseiHoicr edt nsdi i tidt ^eeTiosb ad^ Ic &tBb sif * atcxl a^sfi "^st®-
5e;fni:ogqB aatit e&iQBb sifT .rfoJ:d"uoe3:9 eif^ lefimj fr^r.tse Ibsi lo o
(i:^ 33-300 sit d-jfidJ 59;toe'Xi6 baB esioeb esit sttroexe c;J^ isifssc?! iBioaq
0©/. od 8;fjH6J6Esl9* eip: tpft beiebro fxte attltnlzlq ed.-} d-3ni.c5gjB f"--
mU i -■ '' ■--.'"'■• rj- E!oi'i ai (fl .•-seeljHeiig oil;t 1:c ncjteaseeoo-
nscf' ..>. j..;^! ,0« ^etfotfoO no ;t y.it At^spfli Xlltf Iftcirirco eilT
#«. V, ,..- .-Ilstrqa ^^(f befv^i&itai &syr tli/e T9nt7i^9& fms xitae elcfir-^
i©tf^»T»DV^ «o tsrt* bca 8e.V>IS* fte^^eooa 8e»II«qq[e fcnB btBq avXi. ..a^
9if*) lO.SIf! lo Sim: lerftJ-itrl srlt sesIlQ-fcfs o;f bet9bas& stnBlIsgqs 1201
on.n^o.ast tol oJoft ' t:t i-^ Trod^930.t ,(00.000,<3SS^ o* ifQ/tf sswfc eon"'"'
arott J&eJbifflffie.'. ... .:;i»e oxf* lo itiBSScznq sri* ©li/oss fjxt fteeij ^fa.iiv
Hid laotilgi-jo &frr ,toBitrtti9 9rf* Y^ ftsBiro'i^ aa 6©©fe ed;f asello
Sffi.CIlv .t&«ww eonj^* lie te floetf /Jari B;fn6il9ffcrB tsm be^elLe idriiT
^TBCT il»il* uroery itoBn^flOO erf# lo !=?an:»J 9itt 11a dftvr t-^onnoo o* alcfB
that appellants had aorajKiiisit complied with all the terns of the contract
to be perfomed by them, denied that appellants had paid the taxes and
assessments mentioned In the contract and denied that they had maintained
at their own espense in reputable insurance companies satisfactory to
appellees insurance, as they were required to do by the contract. The
evidence is that on October 30, 1931 the parties met and there was some
discussion with reference to making a new contract and one was prepared
but never executed. On the same day appellants paid appellees $2147.83,
ifhlch was accepted by them not in full of the amount due them tmder
bhe contract, but subject to correction if the amount of interest was
lot correctly computed.
The evidence further disclosed that on October 2, 1931, the
ittorney then representing appellants, who was a brother of Joseph
[ngrassia, requested that appellees furnish an abstract of title
showing merchantable title in Daisy K. Magoon. This was done and on
)ctober 20, 1931, the attorney for appellants wrote his clients that
it their request he had examined the abstract of title to the premises
.nvolred, the last certificate thereon b^ing dated October 14, 1931
it 9 o'clock A. M, , and that it was his opinion that the title to said
)remises is in Daisy K, Liagoon in fee simple, subject to special
Lssessments for paving south Main Street in cause I!o. 134 under an
irder entered April 15, 1926, subjedt also to the taxes for the current
■ear and subject also to a trust deed encumbrance of :j|;20,000.00. The
vidence further discloses that at this time there vrere five installments
if street paving amounting to ;:p50.90 each, which vere unpaid, and which
mder the contract were to be paid by appellants.
The decree which we are called upon to review found that during
he progress of the trial that appellants claimed that they would
arry out the terms of the contract and it was on that account that
he order of October 31, 1935, was entered. The evidence sustains
-11-
baB 39XB3- ^THSileggs i'srl* b&ta&b ^m&di xd betsno'i-i
bealBiatBOi b^' bBiasb bas l^oBiiaoo v; it nJt b^notiaam etnssm
ot YTo*o«^8id-j3a aeinaqiscr. sonsiuan.!: sicfsjfjjqei ni: sansqxs nwo liada
©dT .cfoBidrtc- , oiiBiuani asolle
siaos 36W QiaifJ otB J8fli eex^iaq srij les :o ^fBdi- ai.
bei&i&iq asw eno bus &Oii*£&aoo wan a si3J::iaDi at ooaaie'toi xlcfJcw noiee.'
,58.^;&I2$ s9eXl9qiQ[B BiBg e*iiBlIecrqs TjBf) ein/. ,betuo&X3 leve.
iGbnu fflodJ- sjjf) inisoniB ©riu lo Il.yl rci d"oa: aisat yq fiedrfeooB ?;
aBW taa-xo^tn.!: Ic yru/oiUB add 'ix noid^oa-rioo od" Joatrfira Jtrd ,;J"obi
.5e*uqmoo y-C^^o^
arid" «.I5f?I ,S iscfo^oO no tBd& .'.c'-i-jl Boaeblrs
dqeaoX, *io 'leifd'O'Xcf 3 3bw orfw jSd'nBlIsqoje sniirtetasiqai noiid" x^aii
elJlt ^c .toBid'P.tfs Hi^ Aztniul ae&S.Le>qqB tadt 5e*Ea*/peTt jBlaeB*
no 5riB 9nof> nsw aJtdT .noogB' . ' ' LdB^aMotoa ^ah
tsdi atnsilo z.ld ©cfoiw a*nBlIegq,s 10^ x^'^'^ot^a Bdi ^ISQl ,0S lecfc
?.38£SBiiiq 9At c.-t 3.rj-I.t lo tdsiisde ad^ bealm&ZKe fi.ed &d t&eu£.9i 'clQifd
£)i£B o.t -CoW o^^ vi-^rfj- nolflioo aid 3bw .tx d^srl^t firft. ,.M .A >IooIo'c
Xfixoaqa o* d'oaj.cfye ,9.CqBiia ssT: nf noo^-if"'' .jI XzisG nx wi ee?,
fls lobnu J^Sl .oW dai/Bo ni ^Qf^i^B. n.tBJ.t rid-jjoa sff-tvjsq 10I ad'flasaej
Jneiiifo siirf tot boxb;?' srij ojf OElf, d-ftetcfx/s ,asej. ,31 IIiqA beiad-ne i«
adT .OO.OOOjOSt. "ic ^ioaaidmuoas beob taifii'' o od- osIb d-oetdixa Bar
s,JiefltJlB;faiil »vn gtew sTori;^ amid- aid-t fa &Bdt esaoXoeif) lori*-!!/!
dolrfw J&iii; tbisqiw slew doidw ,doB8 09.08<J o* gnid-ni/ofliB SxiJtVBq ■
.ad^nfiXXegqB y^ i&isg scf oJ- eiew d-oarrdr
Snltijb d-edJ f^ru/ol woivci oi aoqu fcsXXBO sib aw doldv dert
6X1/0W Y9rf* *Bil;^ fcemlBXo aJflsXXeqqB &Bd* XbIi* sxfd^ :
tmdt tattoooa .tBrid- no csw d"! 6/is d'oeidr
a/Ti:,?d-sLrg ooaafilvs '»dT .baaecTi lo leM
this finding. The order granted apoellants the relief they sou.'ht
by their original bill. The final decree also found that appellees,
after the entry of the order of October 31, 19:53, were at all times
willing
ready /and able to fully and completely perform said order on their
part, but that appellants were not and that theref cr e they wore not
entitled to specific performance. The evidence in the record in our
opinion also sustains this finding. On November 10, 1933 appellants
filed their motion to strike appellees* crosa-bill from the files on
the ground that no copy of the cross-bill was served on counsel for
appellants as provided by Rule 24 of the Circuit Court of Winnebago
County. They also fiJed their Biotion to dismiss the original bill.
These motions were filed in the late afternoon of th& final day
mentioned in the order of October 31, 1933. The motion to dismiss
came too late. The order of October 31, 1953 had been entered ten
days before and appellees had u cross-bill on file.
The record discloses that en July 7, 1933 leave v?as granted
appellees to file their cross-bill instanter and at the sai® time an
order was entered that the ori^^^inal bill should stand as an answer
to this cross-bill. As a matter of fact the cross-bill bears the
file marks of the clerk as having been filed October 31, 1933,
Counsel for appellants call our attention to Rule 24 of the Circuit
Court of Winnebage County, v/hich requires that conies of all plead-
ings, filed subseq^uent to the morning of default day, shall be
served upon opposing coujisel on the same day on which the same are
filed end insist that while they were served v/ith a copy of a
cross-bill on Ju3.y 7, 1933, the day the order was entered, still
the cross-bill which v/as filed on October 31, 1933, contained
paragraphs numbered tv/elve and thirteen v^fcich ^-rere not in the copy
of the cross-bill which they received on July 7, 1933, and therefore
the cross-bill had no place in the files.
The Chancellor heard the evidence in support of appellant's
motion of November 10, 1933 to strike the cross-bill frar. the files.
Mr, Earry B. North, covmsel for appellants, testified that when the
parties were in court on July 7, 1953, mr. Hall (counsel for
-12-
a©ells^" "--.Hit Jiiu/ox obIb 0910©* Laaift eii ..; id Xfiniglio ,
a&mii ^ • w - 3iev" .'■•'^r , '. , iQdoioO to i9b%o eil;? to yrttae edt tettt
il9ii& no -xofeio L.;. ,. _v-i-_ij i;Xef9lgiHoo fenu yXIw^ o;f slcfs BhAy^^®'
^on 9IOW t^'-* ■i-vteisdi tedi^ haa ton ©i©w a;ia&llvmqB tBdi tud ^ttst
S^+njsXXsrT.- • - - . rf:r.^•,^r^I .r. ,,_,._ jXil'i Siff^ -luIs.faijS C8 Is n<
lol Isani;::. -.• ....... ' -• ■..-■co on vful;^ ofxi;oT:ji erf;
ogflcfaiLclW lo ;fi«oO rf..,^ ... -■..; i- " -% ae a;tcfiXISi
.XXid" Xscis-t-io sxi* aaliHsife o^ noi:' - : --'i oaXe xsfIT .Y*at^
■^3i» Xjsail 3fl ■ •f" 'f"'icio*T[s 9;tB X 3x10' ni fieXil eiew Qnol3"ot!T ©eexf'
aainiBifi o;t aoii-o.. .... .SSQX ,XC lerfojoG 1o laMo eiU ai baaotiaBi
:iot 6«'3•'^^-^:^'-- rroofi rir5r[ Sci^X , IG i9cfo;3-oC "io TSDio 9jIT .etaX oo:f ©DLB:
.v-^J-'i no XXicf-ssoio fi bsiti aeeXXeqgfi bae eioted p.vq.
beSaai "•■-•" o?^f^[ ,V "^LoX, no tsd-j aaaoXosifi biooei en':.
nu eniit a . ii'd'HB^sni XXicf-aeo'ic Tiiadt silt o:t assXXsc.
TEswaGB n - . j.mo(le Xlicf IsnitTdio '■'-■ :: r.r.i ftei©;}-!!© aew 'leb-x
edcr ai--. - ^-aaoto ad;)- J-oot to iuc^cI-b: . .. -... . ..^id-aeorto & -.
.S'^«?X ,XS Tf-'-'n:;- beXll nescf anivaxi bb Ai&Lo 9dt lo g^Iisxa dXi
ttuoii: .-."■ r ""r, i- r;.Y rfcitno^Jf; li/o XXjbo aJnflXXeqqs ^ol Xe.?n0o
-o", ^E' . 2,Q'iiupei rloXdw ,ic;fnyoO «SA<f8nciW Ic
\^ , ..— j Xx/Btsb lo saiiTtoin oil;^ a) tuairpeacfjua fieXi'i ,--_.-
.j7.fl fjcTBc sil^ xlaiiiw ao Y«h ejnea ©ri3' no Xaanwoo gnlaoqqc nogi; f)^-iVTfi
ij io ^,:':,oo a tf^lw Jkevrea ©lew x^di sxidyr JBdd JsrH'il bsiB
XXi*8 ,Jbai6*iid SBW lebio ©At -^^6 ojij ,e?jex ," yXx/u no XXX'^-^r^'T
be.axisrfaoo ,t;3(?X ,X£ n©tfo*oC no .beXn si;v/ doi/fw XXXd- '<■
t<roo srf* at toa fXD.- Io.?: tw fl©©;J-ilf{* bns avXew* beiecteun :.
©nolerto.'rf' Arte ,5.' , no Tj^jv iH^:*^ vw;r.-f nnhriw XXlcf-aec..,
. ■; .. _ :,:^..., j£i fiaxi XXXd-sac-.
e'^nBXX©ggB to iiocjquz f . jIt© ©/I* btn&si tolleoaadO ©rij
.aeXll ajc£.t noil XXltf-eeoro ©d;J fi.>: j-uf^^, o;> cISeX ,0X iscfaavori "io rm '
9sii a9itfr i otii bettttei^i ^aSnn' -^i iB^auoo ,ri*ioli .a -^fn:,... .-
appellees) handed him or sent to him a cony of the cross-bill. That
when he prepared and filed his notion to dismiss complainants' bill
he knew the cross-bill was on file. Mr. Hall testified that on
October 31, 1933 he and Mr. JTorth were present in court and that
Judge ohurtleff was on the bench and there was some discussion about
the appointment of a receiver and at that time Mr. Hall produced the
original and a copy of the cross-bill that day filed and stated to
Ivlr. North: "I aia going to file aax a cross-bill, it is different
from the one I have served on you. 1 have the original and a copy
here." Ivlr. Hall further testified tliat he thereupon handed to i\Ir.
North a copy of the cross-bill which he {Mr, Hall) afterward, but on
the sarae day, filed with the clerk, that Air. North took it, put his
glasses on and stood on the left-hand side of the bench and turned
through it a number of times and kept it and ^vtien the court entered
the order hereinbefore set forth and Lfr. Hall got ready to go he,
Mr. Hall, said: "Mr, North, I went that copy of the cross-bill'',
and Ivtr. North replied that he also wanted a copy and Mr. Hall then
said: "Let me have it and I'll have it filed", thereupon Mr. North
handed it to Kir. Hall and it v/as immediately filed in the Clerk's
office. Mi*. North's version of what took place is to the effect
that instead of putting his Qle.sses on, he put his ear phone tn
his ear because he couldn't lieBr what was being said, tte t ho didn't
recall just what was said, but he thought Mr, Hall said he intended
to file a cross bill Trhich he understood was the cross-bill referred
to in the order of July 7, 1933 and that he did not read or have
in his hands the copy of the cross-bill which was filed October 51, 1933.
He further testified that he did not know just when he did receive a
copy of the cross-bill filed October 31, 1933. As heretofore stated,
the only difference in the cros^-bill, a copy of which Mr. North
says he did receive a copy of on or about July, 1933, and the one
that was filed October 31, 1933 was tliat the cross-bill filed October
31, 1953 contained para^-raphs twelve and thirteen. Paragraph
twelve alleged that the premises involved in this proceeding were
-13-
^BxiT . II itf -a a oiG (-0:1^ 1o yaoo b mlii ocf Jn«a 10 mill oeMflrl (esolloggj
Xlld »ad-xi3niBlqfi»?o QsltmLb ot aoiaom c?.'!;: bein .5ns bexaqetq ftrf nedi
ao tB!ii 6© ni-d as;}- IIsH .iM .slil itd anw II irf-e a c«eo sriJ weui di
i-fjil;^ &jtiB t*i:j;o -^asifi ©lew ■lc^' . -n- sd SS9I ,IS ledotfoi
*0ocfB noiaai/oa-ij emo:- ^At ba aaw llalJii/ilo ©s^Xi^
o^ be^Bte baa b9lt' II.td-8BCr«d &tit to xqoo s fwis leycrls^iiJ
j-neisllib :-. • . iicf-asoio b inix c- ifilos igb I" : rl^i-jiop]: .-ti
\:qoo s b£iB IJEsniS-tT-O erf;}- ev.eri I .xfo^ no bevies, syM I sno erf;f raoi'
.iM o;r bebnsd nocfireieriJ- 9ri 5-«£i* dsnJtcfaed" laitftxi'T: IIbH .iI.! ".©t©
xio iud ^b's.avrT.0:^J.B (IIsH .tJjI) erl rioirfw Ilid-sao-rro erii" ^o -^^qoo s x1*to
aid c^ircj ,d-i jfoocf ri^^ioW .iR' d-srio ,>:is i ri?r belil ,yb6 omse ad
b&aisj^ hnB doned ad^j to sJbia f)flBxf-d-1:£' I oxfj- nc fioo;t-a baa no coassl
fiaied-ae d-u/oo siV^ nsxf?/ bns *i *qe3) bojs aeial* "io lodmua e ti risiroirS
tSix OS od- y&Bsi ;tos IlflH -iM brfjs sii-iot Sse giotedaioisil ^sbio ail
^''Ilr.cf-ai^o'io fSilJ- "io YC[oo ;i-Brf3- Ja^w i ,ild-ioM .tM" :f)Ji3s ,IlBii .a
nsil;f Ilfiri .t:" 5ns YTOo i-'' fis^nsr o?.Ib sri cf add" 6eilqei rf*ToM .iM fia
d&icM .iJ^ (ioff09i0riJ ("Jein *x arad II* I Sns cTJ: otM em iel*' :bl£
a'2{i8lO anr; .i'l Y^ft^fiiJ^aniifiJ: saw Ji. -o.rta IIbH 4IM o;f ;fi Beftni-
^■0811:9 edt at ai ooalrr 'Aoot tsdv! 'Xo nclot^jv a'lf^fioK .•; .ool'il
a± 3nodq iS9 '^ id iucj ed ,no Boaeglj?, aid scli"*ifq to J&Bod-snl Jsi
*'rtf>if) 9d ;J- 3f(i- ,6.i:j8s galsd asw d-sdw ijaeil ^'afcluoo an ©awsood i/^je a.»
&s&ao*ai oil btez LLrH .11^! cfd?\iforfrf- 5rf tud ^blaa bbw *Brf;v *a;t llfiot
Bsiietsi Illd-Rsoio ori;t sbw boo&e.tobasj ad doixfw Illd BeoT:o fl olJtl
3Tsrf TO bB&T. .:*on bib ed tadi baa ?;sei ,V Y-f^i-"^' *^o tteJiio &d~'
,CS'r:.l , IS TsdoJoO 6&ljtl ai3w rieirfw IIld-eao*io ori.)' to xcfoo oxU Riinjarf etx:
J3 svisoerr 61& ad nar.' -'on:/! Jon 5Jtf) ad ^jed^t fcoilJtcfa&t ladd-TCfif'J:
,6«^B*» •^oto3'»'i3 . S©! ,I^; tcjdoJor bain Illd-aeoio sri? to T
d*ioI^ ."iaS rfoit&f to yqoo 3 ,IIid«a80T:o adcf nl eoaQiettib X-J^no ac
©«o 9Ai lirrT, .tyodo to xio V:> ygoo b (-.vioosi ftiS ed e^i
t^do^oG i)9lx"!: Illd-aaoio ©ri* ^Mt a^.7 SSei ,15 ledo^TaO belXt a«w *b£
improved by buildings and rented and gave the names of the tenants and
averred that the cross-defendants had collected the rents and asked
for the appointment of a receiver. Paragraph thirteen alleged that
the cross-complainants had arranged to fully comply vrlth the contract
mentioned in the original bill axid had so advised the cross-defendants
and that tiae solicitor for the cross-defendants had advised them that
the cross-defendants vrere not able to carry out said contract on their
part. The record discloses that in open court when counsel for all
parties were present, j.eave was granted appellees to file their cross-
bill and an order was entered chat fche original bill should stand as
an answer thereto. We do not think there is any merit in appellants'
contention tJiat the Chancellor erred in not striking this cross-bill
from the files on the ground that no copy thereof was ever served on
counsel fcr appellants, nor do vfe think that the court erred in refustag
to permit appellants to dismiss their suit.
No good purpose could be served by reviewing at length the
evidence found in this record. Vie have read all of it. It is not
insisted that at the time isx. the decree was rendered appellants were
not indebted to appellees under the provisions of the contract in the
amount found by the decree and by its provisions every right which
appellants covLtd assert or insist upon under the contract is very
fully and carefully safeguarded. There is an error in that portion
of the decree which auuhorized appellants to satisiy the amount found
due, being |31,662.96 by assuming the payment of the ^-^20,000.00
mortgage and paying $4,665.29, together with other enumerated items.
It is obvious, as pointed out by counsel for appellees, that there is
a raistake of i|5,000.00 and that the amount stated as ^4,665.29 should
be 19,665.29, The decree will be modified in this particular and
as so modified v/ill be affirmed.
Decree Modified and Affirmed.
bab ataaaet arid- ^o BsioBfl edi avss Sns bo&aei br.m esfllMlifd "^cf ftay©'
oe^ica br:.^, t,i r. :>ai0 9lloo bed 83^£W&fl»ia6-eB0t<> ©4* if^i 6aT
;fo8id"ixot! oor iijiw xiqao-j v^IIul oj i»egxiBiiB ijjswi ooiiiialBXqBioo-sao'io
ai-afii>n9l&£>-aaoio ad* 69<si-t?'f>B oc £)£££ fias IXio Ijeuisi*!'- 9*^1* -^i beiroi:
i-Brfd^ loeila'- i)eaivX>B osri ad-jiB6iielef)~a30io orf.: xol lo^loiXoe axij *B£[*
Lie. lo'z lyamioo uedw o'ijjoo nsqo a.: -aoloeii^ firtoooi e
-aeotto lierlo 8l±*!t o;t adeXXoqqa bBJ ^rr-eetg eisw ti
83 baaia bXiioria Xlicf Xsa-tsiio oilJ >; ciij jb^i^-tiuo aȴ/ i0jj*io iib bn
XXicf-a£;oio aiilj anijtx-iia Jon ill jj;^'ii-:' ioxioi/ujaeiO eiH isiH aoi.tn.9
xio x)3vxea 'isvs asff loeiarid' Y<T^o -""i- v.'.aj jxiworta siitf no seXJt'i: erl;}'
galsflls's: ni os-ii© Jiifoo eiiJ 3.3d* ^Lttina siv ojj xon ^'aiaBil^qqa •xol lea
• Jiya 'iiciic. ',3i:ivi«i:& ot «<iri:i$I.£©gQ3 ^ixjiis
*ofl as. ::■ , :o XXb Jbj^sn evijii 3,/ .o'xooq'X eiiicJ ni 6iii/cl eo::
9T£8W auiiJSxX&qqij j)©'i©I)nsi asw @ei09jj edo Sue aaixj &ii* *b *arf* .iia^a
9n* iii ioaiJaoo Qtfiif to aaoialvcntg odc^ -isijia/ aseXXsfiXB o« l>8>d'cr©&ai
itoiflw d-iifili Tjrtovs anoiaivoiq s;fi ^o I>fifi saaoea aii* xd feiUjol ja
Yie'V 8i Joisctd'aoo eriJ i6>I)mj aoqu daiafix 0:0 jxaaajs ii)Xx/oo 3*fi*Xi
noxdioq ^ad* ai rtoi'xe OiS al ais/IT .x»66'ia«Sdl*>e YXXi/ta^ifio I-ub ^
btuioTi jTidjoeib afl^ -^ali^c-j oi- e^xijsXXeqqij fidsiioiif ij« lioxd* aeiosf) en
Ji4ȣii\;jBq ari* anxiai/aaB Tjtf 3e.26a,X5| Sflie-
-co'i XoaiXJJc^. jiiioq aB ,ai/oivdo
iixii:; 'laXuox.. I bQlXlbosL ecf Iliw se%o©£> adT .e3,56c
.u'itfBim;:'. <i>c IXJ:w fi©i1XJifOm o
I
STATE OF ILLINOIS.
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, iu and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of .«aid
Appellate Court, at Ottawa, this __day of
in the year of our Lord one thousand nine
hundred and thirtv-
Clerk- of ihe Appellate Court
(73S15 — 5M — 3-32)
AT A TERM OF THE APPELLA'p>-'1?0teT,
Begun and held at Ottawa, rn Tuesday, the fourth day of February,
in the year of our Lord one thousand nine hundred and thirt^^-
six, within and fcr the Second District of the State of Illinois
Present -- The Hon. BLAIME HU?Er>/[AN, Presiding Justice.
Hon. FRAM-ILIM R. DOVE, Justice.
Hon. FRED G. V/OLFE, Justice.
JUSTUS L. JOHNSON, Clerk.
RALPH H. DSSPER, Sheriff.
285I,A. 597^
BE IT REMEMBERED, that afterwards, to-wit: On
APR 13 1936 *he opinion of the Court was filed in the
Clerk's office of said Court, in the words and figures
following, to-wit;
GSN. NO. 8993. j^q^^^ ^^^ ^^
IK Tffi Ai^FELLATi COURT OF ILLINOIS
SilCOHT; DISTRICT
October Term, A.D. 1935.
LAWRMCE H. WILLIMIS, Administrator
of the o&tate of Stanley Euclies,
Deceased,
Appelloe, APPEAL FROM THE CIRCUIT
CCimT OF IvlCHENRY CODIJTY.
VS.
CHiafiGO AiiE NORTH t:.^j;3tern BAiuar
COI^AITY, a Corporation,
Appellant,
DOVE, J.
This suit Fas instituted by the administrator of the estate of
Stanley Buches to recover damages sustained by reason of his alleged
wrongful death and to recover damages resulting from the destruction,
at the sarne 'tirae, of his autoxnobile. Upon the first trial, at the
close of all the ovidence, the jury returned a verdict in favor of
the defendant in obedience to a pBUemptory ir^struction. Upon a review
of that record this court reversed that judgment and remanded the
cause. (Williams v. C. & N. "W. Ry. Co., 274 111. App. 671, abst.)
Upon the second trial, a verdict was retui-iied in favor of the plain-
tiff and against the defendant for C-lOjOOO.OO, upon \7hich judgment vas
rendered and the record is again in this co'Jtrt for reviev^.
-1-
.85 .OW AOHESA
.SPSS .OH .HL
3IQllIJ..ri TO T
HlA SHT ^IJ
(>-T-'rjr^'^-» r> rrr**^
, etsllecrqi
(isaases
lAH im^TaiL's HTfloa oka .fi£v:-*i:..0
,£VOQ
eiit betnasirji bar) ttivss^bai tadt bea-mreT. rf'ixioo aiiAu biooa
(,*3cf« ilVd .qq . .. , , . . .T ajEsilll?. ,
oi/t. rfoiriTT ■ .000,0X1 ic'i ;rc«£fii6>:; 'sftiBg.^
.walvei •::.wl j-jx-oo eixf* /il flifi^B ai BioQti'i edi baa bei^b^-
-I-
The evidence discloses that the tlee-i:h of Buches occurred in
the Ci^ of Harvard at the Division 3tTeet crossing v,'here Ste.be
HiGhv.-aj'- No. 23 intersects appellant's railroe.d tracks. At thia
point the railrotd tracks of the appeLlant run in an eajjterly and
westerly direction and consiKt of nino tracks, tv^o na.in tracks,
one east bound .and one v-est bound, and seven side tracks. Ihr-ee of
these side trackt; are north of the rnain tracks and four to the south.
The highway runs north and south. The entire width of the crossing
is 128 feet and from the south edi^^e of the crossing to the center of
the west bound track is 64 feet. The more northerly main track was
the east bound track and the mors southerly main track was the west
bound track.
On the evening in Ciuestlon, October 24, 1929, appellee's intes-
tate T/as driving his automobile north upon the highiray and as he
approached the crossing vras obliged to stop, as the cros:;.ins was
main
blocked by a freig]~t train headed eat't on the east bound/ track.
There were no freight caBs east of the highv.-ay on any or the tracks
south of this east bound ;ni8.in track, nor ?;ere there tjiy operations
being conducted on any of these side tracks, vvhile the crossing v/as
so blocked, the crossing: f.lagman was in the center of the highway
south of the frei^-ht trrin and in obedience to his signal, the
north bound traffic upon the highway stopped south ol tne south edge
of the rl^^-tt of v;o.y, and south of the crossing. The crew of the
freight train, in order to clear the cro~-^sing, civided the trein and
the engine and a number of freight cars passed to the east, tlius
opening the crossing for vehicular traffic. The evidence discloses
-2-
aids tA ,&:A.'Osit baoiliBi B'tttBl.leqqB. B^oyB-istai oi.. . ., .
f>fl.3 x-ti®d-3«d Off Bi iisnt tfiUBlIsqtTtt -•• • -^o e:j{oa'rd- b jo^Xi.s^ erf^ „. .
jaifofii* si.fm owe!- ,«3{oeat sfiiii . - v.^ario.:) 6flB noJtJosiifi Y-C''"^''""""
,situos. &d& oj ijjol fiOB &:AoQv:3 nlna arid" lo jt&ioc ei^ 33fojB'it ., ^
lo leJ-Gso erf* od- g^s^'^^o a... .•. C3^» ^ftf^+t i^-^. «ff .-t w,--,:
-escrn.
:i l^ • r'
-1 ■•! ' «
...^.o .XlOi
iJeei-V ..:..' (,...„...-.-- .,.:.-
XBWdSsl
.-.nrtr rf+T,-. ,i c\ f ^
(frfftnf fio gjixf ;%ni:viiJ& e
.015 oxiu- .... ,.
,^
-.. .. 13 8 010 '~ ; - '"' '1 f'
JliASX
■ '. ■ \ -r-;-:: :ft.-/:-:. -.A:
d.
t:!- •;■ '^ f-;-"'
.-)i(!f-t.'i ,-rr. ;
•^Bri..,,
5i.
that iraiTiediatel3'- in front cf the Buches car vrcs a passenger car and
immediately in front of this passenger car v.as s truclc. The truck
and the passenger oar in its rear passed safely over the crossing,
but as these earn proceeded northward, a west bound passenger train
approached the crossing frora th3 ease travelling upon defendant's
main northerly track, ?rhich is south of the track upon which tie
f»ei^ht train had been standing, and struck the automobile driven
by Buches, demolishing his car and killing; liim.
The evidence further discloser: that tjjo accident occurred
bet\Teen six cjid six- thirty o'clock in tho evening, tlBt the iveather
v/as directing
■was clear b\it It was dark and the crosBing f^gniaii,/s*LEK:'tkExtKa±H2:Ki:]Eit
traffic \7ith a red lantern and thir: flagnan, vhcm the train crevr
cut the freight train for the ptiBpose of opening the crossing to
traffic, looked to the east ard vest but did not see the west bound
l^assenc^er train arproaching and tfcerefore he signalled with his red
lantern to tbe ai-itoniobiles on both sides of the orossing to proceed
and tbey did so. There in evidence in the record th?t the truck
and passenger car iirspiediately behind it and the Buches car proceeded
northward ns one car, with only aboiit four feet between the rear of
each car and the front of the car imniediately in its rear. The
crossing flagiaan testified, ho':-;ever, that thej irere eight or ten feet
apart. He further testified that none of the cars Etj^tcjfc either from
the north or south went over the crossing until he si(5nalled for them
to do so, and that after so signalling, he then walked to the south
as far as the south rail of the most southerly track, looked east, then
turned and v/alked west about sixteen feet until he had reached the
outside of the crossln^f; off the drivei^ay. That a car caine from the
north ard the truck end the otner cars came from the routh. That he
then walked north along the westerly side of the crossing and observed
the oncoming passenger train and that he then got on the crossing, blew
-3-
ba& 1B0 Tsgneassq 3 anvr i50 a^douQ 9dt to tacit nt •'iLsit Bib9.m1L tsA
:iou'7J . ^' a«w IBO lesneaaBCf airi;?- to J-noil ax YXa^fii^sxHCi
(Scxaao": y;L&tBe. 5sasag iBe 0 lesnesesq Biit bsi
alBii io§fl3aBBg f«itfO(;f *aew b ,fiiisirrf*ion oe&eaixng e^so 0««£U' eb tui
s';^^B6fle^:8!B HOcfff : it ear. n*?: ^ieec" .orfosprEa^
aifhrioxriw noqu jTobi.:; Ligridnoii al9
aeviib olx6.omQtij& edt :^ouit& ftns ^:g.aii>afiia obbq .opxI hxbi;)- *ii§j:©fl|
TJii '1.30 all t
09iru;oo- ' "• tsri^Tifl: eonebiva eit
1 ".a aesYi'd't
lazazictTestxinaixiasDtacX.iiaK^flg:! .^niRBoro sri? on© aiBB asw ?x d-xid i^eXo as
vroio flXBi 5ns jaio^ajpl bai a rCtxjf ©iltlfii
od- gfl.: saoqaj/q sdt not ns.sti ^rfa.feert'i a44; ^t
fim/ocf *3: j=^.3:9 erij ot boiiooL ^oiVtay
bei P:li :': ^lotste '•nirloBcna 3 alBtt iB^amnBi
b&eoc "Irfoncwt^ ot n'lac
■■\i. aDrrsiJ-rve ax ei'- . bj-
^' -fasTir^ecf itsal: 'txsot tuoda "^Lno rlJiw ,ibo ©iio 8 jo biBw£<irii
:X«»3"Bxf)«Kraal rfiso sri;r to *noiT: edd- Bfls %ao Aoi
t^et a&i 10 irtgxo ;fl* Jnrfir (isr^^rori ,j&eJ:ti'*e»;/- nainsBU aaJteeof
fflcnT: tsxIcMq tKjetx e.-r.no .noii 3-prf;f I*0xti:*as3- lerfcJ-itJt ©-( .^T:fl<
med* lot 5©IlBngxe sd S.j.tnv j^tp.emo eot icvo *n©w fl^won 10 rlJficoa an
r^fuo-. . nxICflogie oe i«*'t:fl i-sffet £>e« ,oe of
«•/!* ,*B- r].^^ titirOti iXit BB TtOl 'r
©i1;f 6&iioB6'x i>i=)xi a-f lio'mi jsei n««j;tx.tR jj-frccfR #asH fisilXBW ftfiB b»fl jJ
»d* acnt sfliBo ibo b JerfT .YBweviifi sifj tto auiaaoio a/l* lo ©JbiBa*
erf tariT .rf.ti/of; eiii aiott em20 atrnt nosyto »riit fsia ?IouiJ add- brrB iW*w
5er^9cdo ftnu gniarsoto e.'i* to efi/fi Ytisd-ssv/ adcf snoiR ifiMon feealXaw os^
w»Irf .giilseoin on* no *oa neri* e/1 *j»f<J^ ba» atBit iBSflseaBq artlmoono «
his whistle and swung his lantsrn and tried to get in front of the
Buches car hut appellee's intestate dod^^ad arcund hici. There is
evidence in the record to the effect that the flagman was standing
upon the west side of th^-i highway when he sought to stop the car
bein:3 driven hy appellee's intestate and that a ear was passing
over the croGsitis from the north and i,7as directly in front, t^t is,
to the east of the flavjinan, and that this car prevented the fla.^Tsan
from soint^ to the center or east iside of the highway where the deceased
was travelling.
The evidence f-urth^sr disci ossd that a car driven by John H.
EaMlton Tsras perked at a filliiig Sitation, aouth of the 'Oivision Street
croEsins, Mr. Hairilton testified that he '.vas there waiting for the
freight train to clear the cros^-ing so that he could proceed ncr th-
train
ward and vrhen the freight/cleared the crossing, be started for-
ward at the same tiiijo the other cars ahead of hii)] did so and at the
time of the- collision he was, according to his estimate, ahout fifty
feet pouth of the :3uchGs car. This witness further testified that
he did not see the flagman or see the collision hut heard it end im-
mediately stopped his car,
EdiTard J. Carroll testifiev he vvas employed at the tinte of the
accident as hrakeman on the head end of the frei(iht train ^oing east
and that he nulled the pin which cut the train and that in his judg-
ment the ongino and fourteen car« pasGod kh to the cast and the last
car, -Ahen it stopped, was about thirty feet east of the crossing. That
after it atopped he started to walk on the /ground on the north side of
the train ajid had proceeded about four oar Icnp.ths east of the crossing
when he bb.w the passengor train approachins. Ths.t he then turned
around and went hack *est to the. Division street crossing «jad vihen
he got there he besan swingin^^ his white lantern. That he did not
see the truck s^ by, ^^^t did see a oar ahead of the one that was struck.
-4-
-^.itiesBr set? ifi6 ^jb t&A^ isnf, »iBi&eiiit s '©alXftifcrfi %& 0^-7 J:^h ifei J .
.11 3xf* Se^flft'Tftty i:bo 8irf« Jeifd- fi/to j«flm5-«r?: «di' ^o ^feo© 0*2 :
fessBeoeS arl^ d'Ef-.'i:^^ -^ewris-^'*^ **^ - x-*';ic«o ©rid" at atflc^ ;
Si5* tot j.alJisr «v4t$ Bsm 9d tBtL;} bsitllltBet no&LlrtsB .-iM .gflxe.
-Mi fcii tfi hT£9d t!94 ftoirzllZoo siicf soa to (Toflsgii.. :oe tow ;M5 «
•*r- ..!- ftijB'nistS- ©jot* ;f:fo if&irri;*? iiia -^ffc' bfilSjsa cd ^
rie (if 10a &ift fio bitiscx* srf*= no :il«w oi- bei'intH tMl &«j(j©;t£ -i
K&ifw fifli:^ 5«iKr:0'io t0F»«r*8 iioi8.tvi<i /w© cJ- d-s^* itcfltf dfnow jixi© iJA/i-vt
ton btb od tariT . .trr^ifnial ^titly^ lairf ^nigiti-wa aaaorf dri ei&xI3 itc,} t
,2fof/T*« aj^<?/ ;tari;f oao ocf:* to fes&'L? i:3s « 3»«! iiJB #»;tf ^Yd ^y.2fti»i* «(3 t»J ,
The evidence f-jjtlier discloses that iinrnedlately to the east of the
crossing there is a curve and the tracks curve to the right
as one looks to clie east, -bhe highway to the south of the crossing
is comparatively level and the crossing itself is rather rough.
Lawrence Jessup testified that ho was drivin^i; south on Division
L^treet upon ths evening in luostion and observed the large yellow
truck coining from the 'cOuth goin^; north across the crossing and that
when he passed thit truck it v/as north of the freight train, thet there
v/ere two cars ahead of the witness proceedirig south and that there
was a gap of nine or ten feet hetv^een his car and the one iaairiodiately
ahead and a like gap of nine or ten feet between that car rjnd the car
immediately in front of it. He further testified that as these three
cars i)roceeded south, the cros^dng fla^^man was on their right hand
side ( ^'hich would be the vrestorly side of the Division Gtreet Crossing)
and that the flagman told the witness bo "hiirry up, c>ot across". That
after he liad crossed the tracks, he stopoad and looked back and saw the
collaision and sav; the flagLuan waivirjg his Inr^tern and blowing his
whistle and that at that tiitte "he was about in the center of the track,
closer to the highway on the south side" and that he got there by
passing behin'^ his (Jessup's) car after it had passed over the
tracks. He further testified that there ■vere three cars going each
way across the cro&sinri and that the last car, the third one going
north, was the one that was hit and that it continued on -past the
flagman ana in front of the oncomini; passenger train. This witness
further testified that he did not see the KajTiilton car end insisted
that it was the last car over the cro^jsing that ',;as involved in the
collision. The testimony of 3.Cr. Jessup was corroborated in most
ipartic-olars by irn. Jessup.
Charles Bringe testified that en the evening in question he was
driving the truck which w;as in front of the car which appellee's in^
testate was driving. That attached to his truck was a trailer and
-5-
jrtoieivf': .1^6 «« vftij^-a^ ji/ejaeli 9on9T?re.'
ercari* tsilS" ,ai"ri:r^ tH.'ptlti ■- df ton ?.*w #i -'?!o*t:?- ^iirft .^^rjasq «d ii^Mfir
•^.Csi-fljt&oiastl 9110 9iC* feijc li^ 8M na^j^t^tf :t©?!>1: a&i 10 ©niii lo c w
Tso 9{it bat, T'-o t-^rft n^Sf^'ttS'cf #»e'. ':i Jo qji^ sMil i£
aiQ'Ldt &Bi>M e beiftiJeoif ic-rf^iK"!: . to Jno'il fll Y^ '^-^
6/rAd: tiS^l'i TierfSf ro s^fv rr ■;•"- .e C?: T^^ninacno &^t ^dtiroB bfihefa^cif' . ^>
ancf wse bae afsjsrf 6e5(o®I &ar. Ivecrffccfe . t feeaecrro &jsd ©d IB* t.*>
aid ^tnl-crolri frff^j nTf^J*"-/^! aM • snlvtAW^flCA^*!! e£k#' wes Sxib rrcie^.r^jjo
«>[0i3i^ cri» Ic ^€»c? twMs &flw •/f' ©ftl.t {Mil* tfl iJarftf j&ji: *?
edJ lero t&Ptsgq bad &}■ t-jfie T'^.5 (r^ '^wp.-sT.) SfffI ficiriecf rr
s.:ac? 9iTo feilrfd- ©>?(j- ,-T»o *Gf3 ' ©rfu ;J-ad[:r L
3d* taac xio tsu/xi-ifnso ;t.f &ed^ .5a6 cfJ:J aut? .taxf^r ac© a.-l.f s
be^iitsfli bam laa cotltiiwH sri* d«a ioB bib ,'■ oGlll^seit- t^
®ff? al fterloTrti s*?; *»if? ?ytt«eci« sift i«»v >iji s«fir a«w ti
3-e«ft ai 6«*aiocfoiioo asT? cff/sayT. .tj/ lo yn&af±*a©* «rfT taoi^:
tliG truck and trailer were fifty feet in length, with four wheels
under the truck aiud six under the trailer. That after the flagman
signalled with his lantern for this witness to proceed, he did so
amd that the flagmen then went to the west side of the ri^^^ht of way,
that he, Bringe, proceeded across the tracks and dio not r.ee the
train approaching but heard the whistle after he haci passed over the
tracks. It was stipulated that the huchoe car was totally demolished
as a result of this aceidont taid that both the engineer and fireman
of the train involved therein are dead, that the life eirpectancy of
the widow is twenty-eight years aid it further ap e ars that appellee's
intestate way survived by ais vjidcw and one daugnter, ten year:: old
at the tine of her father's death.
./liles Lyons, a former eiaoloyeo of appellant ^as called as a witness
for &pT)ellee and tastified in chief that traffic over this crossing
was from 700 to 1,000 vehicles an hoar and upon crosa examination
stated that while in the omploy of Isks. appellant in (vugust, 1927,
he fflade, at appellant's rexaest, a traffic count and that his testimony
was based upon that couns ^ad that tlie greatest nuiiber of vehicles
shown to bave crossed at any hoxir was six hundred thirty-five and that
was between ten and eleven o'clock in the morning.
The foregoing is a fair resume of the evidence in this record.
In our forxner opinion we held that thlti evidence disclosed tlmt ap-
pellee's intestate, at the time he was killed, was in the act of
crossing appellant's i^raoks in pursuance to a si;^nal given by one
of appellant's servants, and that in the abrence of any independent
knowledge of danger upon his pai-t ho had a right to rely upon the direc-
tions as given him by appellant's servant, \-?ho was stationed at the
crossing for bMs particular purpose and cited in support of this state-
ment C. & A. Railway Co. v. Winters, 175 111. 295, a...d &!jca± Chicaso and
-6-
slaedw Xfcol di tw ^iL^^i>i at *s©^ X^'ii'i^ ei©w tieiiPit baB Usttri erfj
.vftv tc a ... . _ - -. _ J3©w 6i.. 3W 0©riJ- namg-eH: ©d^t Jjsii* fir:
.:* e»fi #oa 615 5a« ajiosid" ailj aa^Mcoe 5«5n»ocT:Q j^gfiltfi ,©rf Jsrf.
flSQsiil ban ioaiii^r?j sM" xf?ocf #£iIJ- buB iaQbtooA airf-t to arlff.
file: ;-T..'-.ev rfeJ- fi<-Jdji,L.cl3 ©no wiitA ^r©tv vd beviTiu& nrrtr SoT^^c^Jr
Eiisndiw £ es nrl^^c ^i .- ,tn .j.r '■3' r -- lo oe^oXq-fi'.'? iGati': « .'p^i aeXi' .
aoi^BC.l^tBXt. cBCXo iuoxi cs aeioljlcv OCO,X o^ OOf mpTLO
'^oflixJaed' Kill ?r;i* <?;£ J-Ri/o© oixl3i« s <jee«x©^ B*ta&ll,eqqjb o .9 ^sb'
8©X:lrf:v ■ ii «-etoJ£eT5; ftxiJ ;t3iS;J- &fle invoo tBtSf Roqff bees-c
.f>ioo?"i 3 !:iU al »oa©6iT» sd."t Ic amj-a©^ ixi-- jujioas-xol sdT
-Tt >ioXo«i6 ©sitafitvo ^Jifli- Jiyl* bleti ©v? aoixrlcfo lenrtol: oj/o l
' ufjvia Xsri-r ;? ^ od- aocajjeii/g iti a3fy«i« »'vfiBXX»C:. : i. ■
-oaiif) «rf;f ffcrra -^X«t o;> vtagii ji |>b£[ »rf S"£Br^ aiil noqu lejenflto *.
-ct-'^J-R riff;? 'to t^oncijfs T.f ft^-:*j:r) ftcrn oc-.G^rT irA.'Joli'isui alAi int gnif.
i»x!* . , . . : •^iivrXlsfl .A * .0 tut
-6-
Alton Railroed Company v. Gore, ^Ofi 111. 188. Counsel for appellant
insist tb.at upon the xjuestion whether appellant's fls^^sman necllsently
invited Buches upon the crossing at tne time the passenger train was
approaching that the verdict of tho jury is manifestly against the
weight of the evidence and call our attention especially to the
testimony of l&r. and I.Irs. Jecsup, ilr. Carroll and the flagman.
OTiether the flagman was negligent under all the facte and circumstances
in evidence was a o^uestion of fact for the jury to determine as well
as the wei'';ht to he accorded the testimony of all ^he several witnesses
who testified. Mr. o: Mrs. Jesoup both testified that when the car
in vrhlch thej were ridin,^ got on the crotising, it passed the truck
comin.?^ from the south v.hen it, xhe truck, was nortJi of the freight
train. If this is true, the jury woula be v/arranted in finding that
the car of the deceased v/as at that time directly in the path of the
oncoming passenger train. Je are of uhe opinion that the j\iry were
warranted in finding from all the evidence that the flagmen invited
appellee's intestate to enter the crossing and that after doing so
the flagman placed himself in a poaition v/hereby he could not warn
Buches of the danger from the unexpected approach of the passenger
train. In Pokora v. V/abash R.R.Co., 54 3. G$. Reporter, 580, at
page 583, the court said: "Extraordinary situations mt.y not wisely
or fairly be subiacted to tests or regulations that are fittln/: for
the commonplace or normal. In default of the guide of customary
conduct, what is suitable for the traveler caught in a mesh where the
ordinary safeguards fail him is for the judgment of the jury." And
in the instant case we are not inclined to intcrfore with the Judgment
of the jury which found appellant's servant negligent and afiDellee's
intestate in the exercise ol due care.
-7-
•%' 3 i&diaiivi aoii&^up 9d^ rtogw tatii ittiz
(J ii^x- 3niaac' • •lOfir b®/ j-aTax,
!oi;f«eup b &bw aonsfilvs a|
s.'iJ- lo iij£ic, OX;.- J. -,.10' Ji;; Biia hQUBaoeb adi lo t«o edt
9T.9V Y" " ' -'^^i xiQlxiiQc 3X1J to 31B . • f i 3T# logfiaaasg s/ilaiooflo
in&vr ' ' tieeoiJtrt fieoBlor aBm^&LI c-
iftSJKe^r.-'-.^ fi: re lu LsJ oc ,:co£u; siiJ trrorrl: Teg/tsfc sriJ to eeiilt;
... -. . .■ ' . >:o3{o^ al .iit&i^
Yi" :ijiBa d"-ii;oo arid" ,<r.85 e^Sfj
•rot ;r- ;i"" .vi.t :sriol<j uiu^s^-^ "^^ sd'daJ- o;t 5e;tos{- dirs scf ^XiJtalt io
7TH(nod-3ffo >c ,■ ■ '■ " ' ' .IsffiioB to aoelgaojciffoo efi^J^
" • . . - .^biBi/setaa ^3«l/)tc
^Hfcffijh^ir 3B0g ^flSa-BCi ©fit fli
-V-
It is next insisted that it was error to Thermit the vritness
Lyons to testify that traffic over this crossing was from seven hun-
dred to one thousand vehicles an hour. Upon cross-ezamination it was
shown that the greatest number, when an actual count was taken, was
six hundred thirty-five. Some of the counts of the declaration charged
the defendant with general negligence in the operation of its passenger
train. Under this averment proof of the extent to which this crossing
was used would be proper and material to be considered by the jury and
this evidence, together vrith other evidence found in the record as to
the extent of the traffic over this crossing was competent, Taylor
V, Alton and Eastern Ry. Co., 258 111, App. 293. Overtoom v, C.& E,I.
R.R.Go., 181 111, 323. Counsel further argue that it was error to
permit counselfor appellee to attempt to show that the crossing flag-
man was inexperienced. Upon cross-examination of the watchman, he
testified that he had only been on this job as watchman since the
Monday preceding the accident which occurred on Thursday, This testi-
monaty was objected to and in response to the court's inquiry as to what
that had to do with the case, appellee's counsel made the statement
that it was offered for the purpose of showing that appellant had an
inexperienced man there. Over appellant's objection, appellee's counsel
wa^ Hkesa. permitted to inq.uire of the witness hov/ he came to be there,
and he stated that he was substituting for the regular flagman. It is
further insisted by counsel for appellant that it was error to permit
a witness to testify that prior to his death, Buches had a gross income
of $50.00 per week between April and October, 1929. Upon cross examina-
tion it developed that his net income would be about .JIO.OO a week less
than that amount. It further appeared from the evidence that during
this peri or of time Buches was the owner of a summer resort at Lake
-8-
aBw it ao It BDlBiBxe -e&oiQ noofU .Ttoil j::fB s^^Ioiifev .6.o»ajLforiJ ©no o.t dqi
6e§nBrio noi^jsiBloei? ©ri^ lo swfli;oo sri;? lo ©jhoB .ev.tt-Y^itrf* £>©a&ixuri xi
isgneaasg ej"! to flOl*fiieqo eil* 01 ©snagilssis IjsTisnss diin taabaQteb 9d
gxrlaeoio aid* iloirfw ed- #ne*x9 s/id" to tooig i-nsmievs siriJ- -esMD' ,aiQ\
&ne Y'ti^i; »rf* Yd beieb.teaoo &d oi Latre^BEi ba& legoig sd SIx/ow 6eeir aj
o* SB biQoei eA'^ nt bauQl eonebtv® lOfiJo lit tn isritfeg,©;^^ ^QQaBhtre a lij
ioIxbT .d-flsctsqiffoo esw gniaeoio airf^f i&vo olIlsTC;!' 3rf;f to *.a»;J-x» 9j<
.1.3 :&.0 .V mooiterO .592 .qqA .1X1 63S ,.oO .xfl ar&t&a'S fens no*Ii .
od" T0118 eB'« Jl t Bdt s.t/g'XB rtsriJ-iwl IsaoxfoO .fiSS .III 181 ,.oO.H*
"^nll siii.'^eoio edi .ted* worife o;^ d-gu^cf^B 03- aslleqqs lolleamroo *ix!TTfl
ari « RBflirioii'-sw orii- lo ^ol^^fl^i:ffi8x«-aao10 noqU .660fleiieqxe«J: aew flii
exitf eonls aeauio^Byf sb cfof, airS- no need X-^iio fjfld eri Jsrf;f bQt^l&zs
-istBei siriT .Y'^^fif^'twrfT -"fo Seiix/ooo rioJidw j-nsfelooB ©ri;t snl&soanq ^.efiisi
;ffidw oJ aB Yi-ttiT^iii a^ttuoo edt o:Sr aafloofaeT fli boB o^ beto^ldo sem xxa*
i BeeiQt Bie &sii ebem Xeam/oo 8*e9.CI©qqs ,e3B0 ©iid- di"J:w 06 o* baA iMt
flB bad J/iBlIeo-qB i&dt j^cJtwoda Ito saogoucr sri* let feeis'tio ajsir *1 *i|il
Isemioo a'selleqcre ,noi^o«|-.do B'cfnBlIeqgs lovO .©Tcadi^ aem beoB.elr&qxt
,ea©.i;J- ed od^ &blbo ad wod eaeni'lw sd* lo eilupat o& bo^^tlsneq tau/Ht 4|
ai tl •flfldjijBll icIxTserc sdt lol ^xxi^i/d'ld'adWB a«w ed tBdt be^Bis »d fin
;}-i£?r3:o(r oj 1011s hbv tl .tfidcf iaRlleqq^ lot laani/oo "ijd fie^feiaai lOit^ix
ejHoenjt sEoig b ftsri asdoirti ,d;tB©£) aid o;r loJt'iq isii^ YllJae^ o* »••««>' iw
-BfllHiire saoTO noqU .9291 ,i©do;)oO fins liiqA nesw*od jfsow rtoq ©©•©C^'il
mmBl it9»w B 00,OI|. ^uodB ed bluav Qmomal cf»n aid tedt beqalereb tl ftoi
j^lixifi ibdi sonaJbiT© «dcf- raoil //euaeqqB iaci*ii;t tl ,taucMUi t&Hi fl»l
©3fBJ iffl d-ioaei laiiifflwa 6 lo I'-^rr.'ro od* sbw aedowS aailt to lojfcioq elc
-8-
Delavan and ran a gasoline station and sold l\anches, that he was
assisted by his wife, that the business v/as profitable only in suminer
and that he had no employment or Income during the winter months,
vye do not think there was any reversible error in the rulings of the
trial court with reference to any of his testimony.
It is next insisted that counsel for appellee was guilty of
improper conduct during the trial of the cause and made prejudicial
remarks in his argument to the jury. The improper conduct complaintd
of is that counsel, during the progress of the trial, characterized
the crossing where the accident happened as "heavily trafficed" and later
inquired upon cross examination of the crossing watchman whether the
passenger train was on time. An objection was made and sustained to
several such questions and we are luiable to see that appellant's cause
was prejudiced by such conduct of counsel. Upon the argument, counsel
for appellee, after commenting upon lir. Jessup's testimony, stated
that unfortunately he was blind. The evidence was that Mr. Jessup was
blind in his left eye and of course aounsel for appellee had a right
to comment upon it. Counsel for appellee in his argument also said:
"I am representing that his wife became a widow and I am representing
that the child became an orphan without a father. The woman's mourning
period is over. We didn't want sympathy and that is true." While
these last remarks should not have been made, the trial court promptly
sustained objections thereto and we do not believe appellant's case
was prejudiced thereby.
CoTonsel for appellant finally insist that the instructions were
erroneous and that they did not form a continuous and connected narrative.
The instructions started out as follows, viz: "This is a case brought
by the administrator of the estate of Stanley Buches, deceased, against
the defendant, under the statute, to recover pecuniary damages to the
-9-
8«w 9rf tadt ,a©rioai;I bloa baa aoitate onJtIoaBS « asi J^ob hbtbI
lemffltre nl Y-^no eidBtltcnq eew aasrrlai/d silJ ^srio ^eliw airf t^ ba^ele-ij
,siW-flOfflisfniw 9dt ^ai^ab ssoojtjl 10 ?noaniroIg!iR» on bod ni'tBdi ^
©£ij to asflilut 9X1* fli iotas sldte-ravei x^s eaw ©•ssricf .rfnli* toK. ob •
.Xconii^a©? aiJ to xaa oJ ••oce^elei ri*iw ttaoo Is;
lBioifc0taig ©^fi^s 6-i^ sayBO eil* to Lst lit Bdi :^t'tssb tdisbnoo ioc[(>i ■
biaialqmjoii toubaoQ leqoigaii 9riT *x^!l ©rit^ of *c®ioJ8«fl olA at tntiB'
besiiQ^nBisAo ,lBJti3- QriJ lo aasigciq orid" gniiirt ,I®8nuo8 ^&&ttit V
lataL bna ""beotltBit x^'^'ff^^d^ ^^ fiS/rsqqsrf rfno&ioo.o 3aJ e'leife' sniiBife^e cft
©ri# 'leriS-srfv a&sidoiivn giiiaae-cD srf* to jioJ: ^ArciMsx© eaorto noq«' lr*^iJ3r|>M
o* Serrifi^^atia &ae ©^bsu aew .iolJ9&t<fo J^A . emi* no «sw iijt*«j" •ic»s'ii«»e8il
eawsa n^ia&fLzqqB tBdf e&e oi ©Ic'bujj errs ew J6jib aiiol;t8eifp ri€W8-£*i9v»
iQaniroo ,*ii©j!afs"cs »£{* aoqU .Isanuoo to tOL'baot) rfoua xtf J&e»i6irt»*iq- ail
BBW q0E33i; .iM ;fBri.r eflw ©oaeJbiv© ©dl' .finllcf asw- ©rf TcI»;rBili;*aot«ti; fJMI
tdi^li B b&d e&lloqqB -rot iQam/oo saouoo to JEhib ©y» Jtel aiil itl Ml'l
:£iljBa oelB JndxcifSis Bid ni 9oII©qqfl lot l€»enifoD .*i: aoqu' tttwumoc
8flJ:*iia89'rg©i mb I JbnE wofeiT? b eiHBoecf ©tiw aid :tsdi gixttiteaeigei jbdb i
galmuroffl e'nBfflow 9rfT .i©rf;l-Bt 3 ^woriiJ^lw aadqiG as dniAodCf felJcxiB ©rf* t
eliilW ".9ui* al *flrit bna Y.rit&qKX^ *0BW #»jtt61b ©W .is>vo si boiit
XXd^qnoiff *iifoo IbIi* qxIJ ,©6Btn flSScT ovfirf Jlon filuoilc a3(^am»n #8fil »a5»l
9e«o a^^cBlIoqqB eveilad ioa 06 «w &ss ©JsidrfcT anolit'odtrfo 5«flJtfi#afl
diew aaol^rotntnai 9i£;f jbiU Jaiaal Y-tlanit i-csX-Iegg-B lot leMuOS
• •Ti^Biiaa b«to9ttnoo 6flB airowixiJ/ioo a ataot &oa iiJb ysilt ;?bx1S' has ftuMtirem
tsi^fyid eftAO a ei aiilT" :sJ:v ,av?ollot ajs (fr/o ^s^ibJ-b affoJ:*-9Uiil'*#l«'«l
^eusiB^^fi ,b9aBBo»b feodouQ -^GliifljJ-a to ©cfaifHO ©rfif to lo^Bi^alfr^mi'e-Arff -^
*ri;* o* a«SAB«il> ^^XB.tiit;09q idvooai od- ,eitvtste adJ isfim/ ^ d^adb (T*t*fe "*!
-e-
rldow and next of kin of said deceased, for injuries and the death
9f said Stanley Buches, charged to have been caused by the negligence
of the defendant at the railroad and highway crossing in the city of
fervard in McHeniy County, Illinois on the 24th day of October, 1929.
"The court instructs the jury that this case is being tried
apon issue joined upon the several counts in plaintiff's declaration.
The first count of the plaintiff's declaration charges that defendant
railroad company was, at the time of the alleged accident, possessed
3f and operating a certain locomotive and train under the care and
aanagement of the servants of defendant and that due to the improper,
sareless and negligent manner of operating said train, it struck and
cilled the deceased, Stanley Buches, at a tine when he was using due
sare and diligence for his own safety, thereby depriving his widow
ilose Buches and his daugtiter Julia Buches of their means of support."
The instructions then infonned the jury that the second count had
Deen withdrawn and advised them trhat the charges of negligence were in
the remaining coxmts of the declaration. No good purpose could be
served by further setting forth the instructions as read to the jury.
Phey were in a narrative form and substantially complied with the
statute. It is the contention of counsel for appellant, however
that the court disregarded Section 67 of the Civil Practice Act because
the instructions were upon separate sheets and that the word "given"
fras written on each sheet by the court . We have ezanined the record
and while under the practice which obtained at the time this cause
[fas tried the word "given" had no place upon the various sheets
containing the instructions we are unable to see that appellant was
In any way prejudiced thereby. Y/e have also considered the several
objections thereto urged by counsel, but in our opinion no reversible
bTTOT was committed by the trial court in the giving of the instructions,
-10-
tL^99b adi baa aeliulni lol jfceaaeosfi bisa to xii>f 1o ixon haa woJ
sojcto8ila©xi €«£;*■ xcf J&eawso aoscf avisri a* 5&sifi£io ,aejloifa xsiaa^a M^
to Yctio 9i{;f ni siiiaacno XJS'rfS-t^ ^-is JbBOiIlsi axl;f d-o d'nsSjaelaib ax.
.esei ,i9cfo;roC lo -hibo H-^^ ^ri;^ no aioxiilll ,yj*"£U''oO YrtxtsHoM n.t Sibv
i&siid' giiied si 83.eo siil* J- arid ■^•ULfj. edJ- 8;tojj^d-afli ;fij;oo •ilT"
fe©3Q©saoq ftsxeblooa i!)©s©IlB ©jrf* to faai;^ eiii ^b ,36sr -"^XLeqaoo &Boai.
£)jaB &1B0 edi t^btut aiBii baa svid-offioooX axsa^^so a s-t^iJaiaqo Jbna
3xiB iowid-a ^i ,fliBi7 6is8 saiJBiogo lo lemiflK ij-aasxlses fixtfl «8oI®'
ex;J& Sfli^u aaw ail fl^ffw omxS' .3 c^ b ,a«rioi.rS ijelnj8*£ ,&aaB6oef> s£f^ bai.
vobsTi eiii gnrv-riasf) Y^ft^i^iiJ" i'i^^'iBa nwo aixl lo't goosjilli:^ baa &
".^TOcfcruQ lo ajcjBsci ileiU "io esiloua sili/l. leJtfeiied aid ba& &9A9uQ. s
fifld tassoo baoQ'ia adi ^ Bdi T^l Q>i^ bmno'lcl nmli eaoiisi/id'eiii
fli ai8W oonG3iIa®a ^o aagiBtio ©lid- 7&dt medi b&zXvba bne ar(B'Lbdtlv m
9(5 biuoo ©Bcg^ifg 6003 oK ,aotiBiBloQb edii to a;^ aw 00 sniujtsxHsa
.Txut, sili- o# i)j8»i aB saolt9intBal »dt diiot gnl^J^aa asxi;!' K/i yQ i)sv'
©ricf dd-i^- 5exlc[i!,ioo xLlBittiB^&iiuA ba& fa^ol ©vi.d"BiiBff b al aiew Y'
Tcrswoil ,tjiBJlI©qqB lot leeiorao lo lioiJns^aoo axW a I SI »Qii}ii
•awsoatf toA sox^toB'fi livid arf* to ?d noWoaa J&dfeis^eiaif) iTTfjoc axtf *j
"flsvis* injD'v aifi;!" *adt fias ac*"e9jiia o*BiBq»e ixogy ^^sw anoiJcx/ii^aiii
feiooe'x ox£* bealmxe ersd o\! ttiuoo edJ^ y<^ J"eeda rioBe no aoaiTN 1
satfBO eidd- scW erlJ *« tsaJtoJcf© cfoixiw (9oid"0ie^q exl;t isJbmj Bllrf'
e^serfe ex/olisv Qdi aoqsj eoslq oa bsid ♦'fiOBVig" biaw &di belli 1
afiv tnBlXeqgB tsrf* sae oJ- Qidaau eiz ®w e/iol^fojji.tanl arfet- ;Biili^l^ii
iBa&ves oiljf beiafixsrioy oa Ib avoxf eW ,Ytfei®r(* J5©oxfii;t»ag ^sw Y-^a
eldiaiovei on Hclnigo 100 ai tud ^Xeafljyoo Tjf^ fieaii/ oJeieilJ- enold-osl
,efloxi-9i/i;fBXil ©ifd- to Sfllris 9rf;f xiJt d-ii/oo iBxitf odt xd be:rtlamioo esn 10'.
-01-
The questions of fact raised by the pleadings in this case were
presented to a jury which found those issues in favor of appellee.
Phe record, in oiir opinion, is free from any error requiring a reversal
)f the judgment rendered upon those findings of the jury and therefore
that judgment must be affirmed.
JDDGMEIJT AFFIRMED
eiew 88S0 aldi n.1 a^iiiiiBsXq; edt xd JbeaJrjsi d-OBl lo anold-aai/p siiT
.eeXIsqqB to t:ovb1 al asiraai eeoriit bm/ol: iloMw ^nx/j; b oi" bdJnea
iBBisvert B sniiii/pen noii© y-^b flioT:1 9911 si ,flol£ilgo 100 riJt ,&iooe'
eaolsieri* £>flB y^'' ' '"^ a^albail saor'd- aoqu beiBbaei tjnas^bul siu
.beantllB e<S d-aifci famssbisl J
STATE OF ILLINOIS.
'>-ss.
SECOND DISTRICT J I. JUSTUS L. JOHNSOX. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Apjiellate Court in the ahove entitled cause,
of record in my office.
In Testimony Whereof. I hereunto .set my hand and affix the seal of said
Appellate Court, at Ottawa, this _day of
in the year of our Lord one thousand nine
hundred and thirtv-
Clerl- of the Appellate Court
(73S15— 5M— 3-32) „rf
AT A TERM OF THE APPZLLAT^ COURT,
Begun and held at Ottawa, en Tuesday, the fourth day of Fetruary,
in the year of our Lord one thousand nine hundred and thirty-
six, within and fcr the Second District of the S"cate of Illinois
Present — The Hon. BLAIME HUFFr^L^N. Presiding Justice.
?Ion. FRAl^CLIN R. DOVE, Justice.
Hon. FRED G. YiTOLFE, Justice.
JUSTUS L. JOHIJSON, Clerk. ^
RALPH H. lESPIR, Sheriff.
5
BE IT REMmiBERED, that afterwards, to-wit: On
APR 13 1936 ■the opinion of the Court ^7as filed in the
Clerk's office of said Court, in the ^crds and figures
following, to-wit:
GEN. NO. 9012.
AGENDA NO. 1.
IN THE ..APPELLATE COURT OE ILLINOIS
SECOND DISTRICT
EEBRUARY TERAI, A. D. 1936.
EMBERT ERICKSON, ADMINISTRATOR
OF THE ESTATE OF EARL J. ERICKSON,
DECEASED ,
FRED BALL,
Appellee,
Appellant.
Appeal from Circuit Court
Boone County.
WOLFE J.
Embert Erlckson, as Administrator, of the estate of Sari J.
Erickson, deceased, started suit in the Circuit Court of Boone
County, against Fred Ball, to recover damages for the death of the
said Earl J. Erickson.
On or about June 27, 1931, a Chevrolet gravel truck driven by
Earl J. Erickson, deceased, and a Reo milk truck driven by Fred Ball
collided. The collision took place just North of, or, on the North
edge of a bridge on the Poplar Grove road about one-half mile North
of the village of Poplar Grove. The road over said bridge, runs
North and South. The Erickson truck was being driven in a Northerly
direction and the Ball truck in a Southerly direction. As a result
of this collision, Earl J. Erickson was killed. Trial was had and a
verdict rendered in favor of the plaintiff, for the suia of '32,500.00.
A motion for a new trial was overruled and judgment entered on the
verdict. The case has been appealed to this Court for review.
-1-
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aioMi.iJi 10 Tatioo stajj^^^a sit hi
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tiuoO Slue -1 IseggA
.T!0- . ^AS f 0 STATSa SHT ^
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.1, IrtBc: tc ed-j-'.crc , .-od-BT^BlniiSftA bb ,noa5ioi;Tc'. ^^1odia3
o-ritf lo rlJflefi erW 'rot easaajaf) isroeei od- ,IlBa bs'i? ,taniB3Jss ,^^^^^0
.floa^foina ,X. Iifi.' il/j
■^d rcevliB jfai/id' lavsij; d'elo'XvejtiO ^ ,1591 , 'TS scujL ifi/oo'B tco nC
XIaa 5ei^ Tjcf aoYiib :[oiJi;t- ^flircf coH b fine .f)sa6©09£) e-Ctosioi*)::: ."L Ii£
tLtto'A 8ri;t no ,'ro ^lo dd-ioW (fairt soslq :>{oojf noiailXoo axfT ..bsSJtIIc
iI^ioM ellM lljad-eao ;J-xfocfi3 Sboi qvoit) acIqoS. sdd" no osfiJtici s£
Biti/1 ,e3f)l^tf £>1b f-)BOi edT .svoiO ijsXcto': 1o &^Bllt>f &di 1
Xlioii&ioM B at aeriib oi^-i^'^' ai>.w iM'ojjid- noe3foxi5{ f. . 6xxfi diic
tljj?j<^ .aoiio&'ilb YXieriififoS « al jiount Had arU Oiii* aoltOBii
B fcita iiij/: aiiv .ftelllal sstr xioejfc jifoXeilloo aixfcf "1
,00. 005, St to Di;jc jlIJ xq\ ,tti*nJ-0lq ecli i;o -lovjsl lii £ioi©£)fl©n d-ol6i«
9/!* ao b&ietaB d'nr. i'-QjJuaievD sjbw Icii^t ?/ r lti
.weiroi tot J-lu-jL cjiiiu ud- f>d r.jB©gqB nosd sari' ei^j^o uiiT .J-oiliie
-I-
This case was before this cuiirt at the October Term,
A.D. 1933, as general number 8675, at wMch time Me reversed
and remanded tlie case to the- trial court for a new trial, be-
cause of erroneous instructions given by the Court to the jury.
The evidence on this apTjeal is Dractiwally the saiTE as in the
trial of the case the first time. The plaintiff introduced a
number of v;itnesses, ?/ho ^^ave their version of how the accident
occurred, the position of each truck, and the conditions
as they saw them at the scene of the accident. The defendant
ce3.3.r--'d Ein equal or greater nunber, v/ho gave their version of
the same things. The appellant now seriously Insists that the
verdict of the jury is contrary to tne manifest v;eight of the
evidence and therefore the judgment of the trial co\irt should
be reversed. This Court and other Courts have frequently held,
that unless the verdict of the jury is manifestly against the
weight of the evidence, a co\irt of review should not set aside
a verdict of a jury. The jury and the trial coiirt ace in a
much better position to weighthe evidence and pass upon the
credibility of the witnesses than a court of revievif. They have
the benefit of seeing the witnesses on the stand, hearing their
testimony and observe their demeanor 7/hile on the stand. V/hile
this evidence is very conflicting, this court cannot say that
the verdict is manifestly against the vrright of the evidence.
The judgment should not be reversed for that reason.
The appellant contends that the court's instruction
No. 8, does not state the law and should not have been given.
This instruction was given, for the purpose of assisting the
jury, (if they found the issues in favor of the plaintiff) in
fixing the amount of damages, and the elements thatjE they could
-S-
-9d tlBlid- wsn s lol ^rfiroo Ifii^ erid- oJ saso erf* ftsMsige-i baa
Sri J nl 36 snsa exW Y-i^Isvi^J'oBtrq: ai iBsgqs 8iri;f no eoa&btr@ aifT
*n96ioofi orfcf won lo noJtaiav lierici' .... ., ...... ,.„....-..:.... .- ^.n-.v/ii
axioicl-ibno- -rf*- mb ,iioi/id- rioBs lo aolttaoq arid" ..bo'i'mooo
ifnB5iT9'ieJ& erfT ........iooB arid' lo siisob exl^ &b sssiU van xsdi as
"io .^ois1^r ilsrid- svBa oriw ,i9(firajii -r - --o ta 'nnpe ae fewClBS
Slid- d-Brf^ 3d-sj:ani: ■\fIe1xox1e3 ^vo^ crnsX-L., .,,.>- .^...^ .^.iiiiild' misa 9di
ei(d lo jfdgisi'' taetlaasi sncf od" tji^'^e^^oo al X'^l ®-^* "ic J-oifciev
filuoiia d-ijjoo iBiid' ©rid- lo dflam^birr r-'J ?- r, " :^ f^",:;- ".;(? ©oiioblv©
,jbleil iltasupei^ svad aJxt/cO iQiid-o L-.. . ,._. ., .„^31©tsi ed
adt ^aniiJSB Y-td'as'ixaBia ar ~\jii;c srfd lo d^oibrxev eild aaslxm tsdi
ebiaB ioa &on bluodR wsxtsi lo d-ixroo b ^sonsJb-V' '-•'■:!■ lo d-dsiewf
B ai etiB tiuoo Isjcid- arid- Ons x'lul sdl <,xisj'.^. - , &oibnor a
9di aoqu aasq baB eoaebive eiid-r^iaw od- aoijiao. f ..KtBd d^um
9Tad -^sriT .wBXTsi lo jijjoo b nsilci- aeeeettd-iw sn'd- 1.. ........ id Jtfceio
lierid sfl-i-isert tfcnsd-e srld no sesasnd-iw add- gnioea lo d-ilarraa sild-
•Xirf?.' .£>njid-3 add- no slixiw lonsecioB tledt avieado bim XJ^Ofiiid-esd-
d-Bif* YBa d-onfiBO *ii/oo eiitd- ^snid-oillnoo tjisv ai oorrsfelve slxld
.fonefilve erid" lo d-risi:'!,/ itid- d-aniBSB x-C3l'a#tJ;»iSBt &1 iolb'xer edt
.aoaB©i d-Bjio • ':;i8n»vei ©rf d-oa fe.Ci/orie vncMigjoi/i, oxlT
flold-fix/itfaflJ: a'd-ayoo ©;id- d-jarfd- ar-i:,^j vcj;, JiiBlIeqq." fT'
• rrevJrs need evBil don 6Xi;ori3 basi wjd . ... .uad-R d-on boc^ ,.. .....
©rf* sc-t*ei«afi Jo oEocnx/C; arid 10I ,397.!:? aa* coxdoi:;Td-».nti- siriT
al (tli^flislq ©ri.j , f^^ jc()^ asjjaei add- fcnjuol ^erfd- 11) ^x'^ul
blisoo Yea* ^dtad 3;frTeMeIe ©d;^ bns ,3s^:^.HLiaI) lo d-m/OM3 odd- gnlxll
-s-
take into consideration, in arriving at the amount that should
be allowed to the plaintiff. The appellant does not claim
urged
that the Jud;^ent is excessive. This point is r.ct/aa::g;KEfi in
the errors relied upon for reversal. This Court in the case
of Greenacre vs. Aurora Brev-'ing Company, "00, 111., Appellate
page 193, held that any error in :^ivlng an improper instruction
on the measure of dama^^es is harmless whore there is no claim
that the damages are excessive. The sufficiency of instruction
No. 8, has been waived by the defendant in not assitsning error
that the verdict of the jury is excessive.
¥i/e find no reversible error in the case, and the judgjient
of the Circuit Court of Boone County is hereby affirxtied.
Affirmed.
-3-
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^fae/^igfiuj, eilo ons <saBO 9iIJ ni loins ©IcfiaTSvei o/t fixtil ©v.
• j&aflinills Yd'sisrf ^x y^^^^oD enooE lo tiuoO iluo'LlO Qdi to
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.J&SIB'IX^IA
STATE OF ILLINOIS,
'i-SS.
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Ajjpellate Court iu tlie above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Otta^va. this day of
^ in the year of our Lord one thousand nine
hundred and tliirtv-
Clerl- of the AppeVate Court
(73S15 — 5M — 3-32)
AT A TERM OF THE APPELATE C
Begun and held at Ottawa, en Ttiesday, the fourth day of February,
in the year of our Lord one thousand nine hundred and thirty-
six, within and fcr the Second District of the State of Illinois
Present — The Hon, BLAIME HUFFr>/[AN, Presiding Justice.
Hon. FRAM<LIN R. DOVE, Justice.
Hon. FRED G. WOLFE, Justice.
JUSTUS L. JOHNSON, Clerk.
RALPH H. DESPS, Sheriff.
285
.5
BE IT REMEMBERED, that afterwards, to-wit: On
APR 13 1936 *he opinion of the Court was filed in the
Clerk's office of said Court, in the novds and figures
following, to-mt:
GEN. NO. 9028
AGENDA NO. 7.
IN THE APPSLIATE COURT OF ILLINOIS
SECOND DISTRICT
FEBRUARY TERM, A.Dc 1936.
ANNIE DENNEHT,
Plaintiff and Appellee,
Appeal frcm the Circuit Court
TS. of Peoria County, Illinois,
W, A. WOOD CO., a Corporation,
Defendant and Appellant •
WOLFE J.
This is an action instituted by Annie Deimehy, the appellee,
against the appellant, V/. A. Wood Company, a corpcaration, for daraages
resulting frcm injuries sustained by her on August 19, 1933. The
accident is alleged to have been caused by an Essex Coupe owned by the
defendant and operated by Lewin Elliott, one of the defendant's sales-
men. The complaint was originally instituted against W.A.Wood Company
and Lewin Elliott, but vms dismissed as to the latter on the motion of
the plaintiff at the close of her case. This action was taken after
the court had refused to direct a verdict in favor of the defendant
V/. A. Wood Company.
The complaint consists of two counts. The first alleges that the
defendant, the W.A.Wood Company, was the owner of a motor vehicle which
was being operated on Bradley Avenue, at the intersection of Underhill
Street in Peoria, Illinois; that the plaintiff alighted from a street
car, and while walking in an easterly direction on Bradley Street, (which
is a residential portion of the incorporated City of Peoria) in the exer-
cise of due care and caution for her own safety was struck by said
-1-
.V .OPI AOKJIClA
8S0e .OM .«
SIOMIJJI -^O TSFOO 5rTAIJa?IA SET MI
,9soj. .a, A ,MsaT TEAUffaan
JtjjoO JiiroilO sil* soil LeeqqA
.aioxiilXI ."Trf'nwoO Bii09^ to
esIIeqqA bne tllintBl'i
>8\r
, iaslLeq^qA baa . i aBbneted
.1 lie
tOBlleqqB arid- ^y;d&nne(I sini :r>:tutttBal aor^oB as, ai eMT
aer^fiirrBf) to^ ^nct^Gina-coo e ,^-^^^^1^00 5ogYi/'.A..'7 , JriBlXeggB or& JaaJtj
. . o 19x1 Yd' benlBCfax/s aeiix/tnl looil jntfluj
erf* Yo' betmo 8q0oD xeaaff nB yo bosx/BO iioad svari o;f bsgellB ai toBbli
-ael£8 3 '^naSnalef) srfcl- lo sno ,d-d-oiIia cjtwdj y^ b^issreqo has iasbne'
Yflsgaroo booW.A.vV rf-anlssB Ijsd-yi-ld-eni YJ^-^t^J^-tS-cio sew itnlBlqfiioo adT
lo no Jrfom exfd" no leitBl ori* o* sb 59aaix!i3i& ssw *i;cf ,d-tolIia nlwsJ J
letlB ae-Ast asw noittos aixfT .saso isrf lo ©eoXo arl^ &b VliiaiBlc
^aaba&leb edi lo lovsl al d-oiJ&iav e d-oeiJ:£) o* b&'^J.ei Jbarl ^roroo
.YJCi£a|icoO bool ..
atf* ^BifJ aesellfl tfaiit «ilT ,ac?ni/oo oi?d- Ic aJ-aJtcnoo ialBlqiaoo sdT
rfoWw elolrfev ToJ-oin b lo isnwo erf* asw ,YnBqKtoO iJOOiY.A.W erid" ,d-flBi>n9'
LLliliBbtfJ lo aolJ|-09ai«j*nJt odd- j-ja ,aun&vA Y^'-tfieifH: flc> dscTBisgo gnisj
;f»Bi*a 3 flTOil f>©d-fiailB lll^nioXq odi i-sd* jslonlXXI ,filio0^i ci See-
x£oiitw) ,*eei*8 yoI^b^S no aolioeitb xLi&ts&e an ai ^,at:iLm eltdv btw «
-lex© eri* ai (aiioe^ lo Y*iO Jbod-Bioqiooni ad^y lo noXd-ioq XBitnaJblaen b
btBB Yrf 3ioiri*& asw Y^Q'^^se xr.'/o -lari lol xiold-x/BO oros gibo eub lo si
automobile when it was being negligently operated at a speed greater
than was reasonable and proper as provided in the Illinois .Statute.
The sixth paragraph of covmt 1, also alleges that the defendant,
through its agent and servant Lewin Elliott, carelessly, negligently
and improperly ns.maged said automobile, and as a revsult thereof the
plaintiff was injured.
The second count of the petition is the same as count 1, relative
to the location, time and identity of the parties. The plaintiff
charges that the defendant \Tras negligent in fai ling to give any reasonable
warning of the approach of said automobile and thereby the plaintiff
was injured and sustained damages.
The answer of the defendant, the W.A.Wood Company, is as follo-ws:
"Denies paragraph one of count one ef the complaint," The answer in
the same language denies each and every paragraph of Counts 1 and 2 of
the complaint.
The case was tried before a jury. At the close of the plaintiff's
case, the defendant presented its motion and instruction to find the
defendant not guilty. This motion was denied and the instruction re-
fused. At the close of all the evidence, the defendant, W.A.Wood and
Company, presei^ted an instruction and filed its motion for the court
to instruct the jury to find the defendant not guilty. This motion
the court took under advisement and reserved his decision on said motion
until after the verdict of the jury. The jury found the issues in favor
Af the plaintiff and assessed her danages at $13,500.00, After the
verdict the court overruled the defendant's motion for a directed verdict.
The defendant then made a motion for judgment notwithstanding the verdict.
The court likewfee overruled this motion and entered judgment in favor
of the plaintiff for :|13,500.00 The W.A.Wood company have brought the
case to this court for review.
The appellants insist that the trial court erred in not sustaining
their motion for directed verdict at the close of the pilaintiff's case,
because the evidence is not sufficient to show that Lewin Elliott, at
the time of the accident, was the agent and servant of W.A.Wood Company.
-2-
.9;f0*B;)'8 aionilXI sil* nJ: bsbtrotq as n:©qoig JboB elcffiaoeBe-x ajaw fl.
,3-xiB6ns': tjsa* eassHs oele ,1 itmroo lo riqisisflisq Atxte
Qil* "ioeisild- JIi/asT b as fufiB ,9lldo/r(ocfj;/i5 feifis f>9SBX3Bn icXieqoiqffli
svid-BlsT ,1 iauoo as eraBa sif* ex aQliiioq, ©if* lo ;f££0oo bxiooe-^. eriT
alc'enosBarc -^na ovis o* §fllIjBt ixJt d-asgllsati sisv JxifijbflslsJb ed^ tisiit zq;&i
tli^alBLq Qjit Ytf9^«Jtl* ^^^ slldomotuB bir ocoiqqf- gcia
:awoXXol - SooW.A."- ^rl:? , JrisjonalsS eil^ lo lea^an^ &fi^
at iswaflB exiff- ".d-iileXgjEOo edi lo eao d-ntroo lo axio dqBig cxBij^ a^j-P
lo S fins X aitwoQ lo dqBi^B^sq Y^^ave b:xi-: does a@iaeb e^i^L'-^nsl 3Jkb
8'i1:i?£fielc . :^ ■ xlT
- , iii^bais
.alii i>cd iioliaiiT^: ('^■'i^^
aol. .i^J^Xiyi, u .iii tiiBba»^Bb ai!? -x^anJ
lovRt al aex/jsai: arfd" fcatrot ^n^^i^, ed'L .\rii/t Q^^ "io itoI6T[ev Qdi istlB JJ
-v! .00,0C3,eX$ tB aesflOflfi lorf Jbaaaesajs £x crid
• JoxSioT J&3»;o.v'iib 3 'xol ootiosL s*&£iBbae1eb edi belutievG '■inui^o ,)Xi
.*olf;i: ■ dilntoa dfiaragbwc lot nojB-Oiii b ebatn aei' j
■^ieta& ba& aotiom Btdt bBlmiero eoxe^l.
o:ij .-l^'CiiJ 07£..: 'iaaqmoo fiooW.A,'.'/ QffT O0.00e,exi io1 t'il^^.U'lxi, edit
.Tvolvei rtol: J-iiroo aJUlJ
S^-- -i+neXXaigB adX
,9eiei' d'l:ii;^l£jLq adi lo s^CjIw ^.iI;^ in ioib'in-^ i^i^iooilb io% aottowi %J
The appellee insists that the issue, of the scope of employment
of Lewin Elliott, is not in the case, as it has not been raised by
proper pleading. Under the old form of practice, the plea of general
issue did not traverse ownership or operation of an automobile in a
personal injury case. "Muller vs. Hayes, 321, 111., 275." The appellee
contends that the answer of the appellant is simply a general denial
of each and every allegation of the petition, and therefore, it means
nothing more than the old plea of general issue.
Section 1, paragraph 40, of the present Practice Act provides as
follows: "The general issue shall not be employed and every answer and
subsequent plea shall contain explicit admission or denial of each
allegation of the plea to v.^hich it relates." The answer in the present
case denied each and every paragraph of the petition. It is our opinion
that it complies Tirith the practice act and that the answer denies that
Lewin Elliott was the agent and servant of the appellant at the time
of the accident.
The evidence shows that lewin Elliott was employed by the W.A.Wood
Company as a salesman for two or three months just preceding and at the
time of the accident in q^uestion; that the appellant was engaged in
selling nev/ and used automobiles::^ that "W.A.Wood was the President of
the corporation and had active supervision of the business and the
salesmen; that the appellant maintained a used car department at 1026
South Avenue Street, Peoria, Illinois; that used cars ?.ere displayed
at this place in a building, and on the sidewalk and near the curb in
front of the building; that it was customary for Lewin Elliott and the
other salesmen to be on duty at the used car department every night;
that these salesmen ordinarily ran the cars into the garage before they
went off duty, around 9:00 o'clock P.i,!,; that there was no written
contract between the appellants and the salesmen, but they were given
oral instructions when they were employed and further instructions
from day to day by some officer of the company; that these salesmen
worked in and around the garage and took out these cars to demons^ate
Jnaarjolqffis lo eqooa erf* ^o ,9i;asi: srf^ tsAi e^felafil aelieq-qs adT
Ytf j&98iBi nasd d"on sbA *i aB ,9ai3o arid" ni dru si ,tct-cll[i:: xilwaj
Isieae^ lo sslq arid- eeoii-OBig lo flnol bio oxfd- isfiiiU .scibBsIcf isq
s ni ell cfOfflo;fj:/ 8 as lo aolttmeqo 10 ctMais>fiv;o BBiorsTt ion btb ©if
86ll9qqi! eifr '.372 j.;.II ,ISS ,B3YbH .av islliri;" .ssbo Yi^t^-^ Isnos'
iBiasb iBieneg b vlqfnia ai ^nalleqrgjB sricf Ic •sewextB exltf ^Bcii- tbaett
anfiSiO d-i ^sioleierfd- bas »nold-Jt*9c: nojtd-BseXIs ^eve BxxB jtfbBQ
•xanes " dIo 3il:t asii;t eioai giiiif
8B 8y£>lvc eoltofli? d-flssf- ; rlqsiafi^JBq ,1 noido©8
J&tiB iswanB Y1SVS f)ii8 BeYOlqioe acf ton IlBrie eswifeBi lB*c©n©S ©rfT" rew
rfoBs lo IsineB ao noiaaxorbB d-ioJtIgxe xtiBdrroo Ilarfa aelq tnsirp^,
drissenq srf* xix lawsrtB srfT ".aed'el©'. .i-d-Bsa
aoinxiTO 11/0 ai: d"! .1101* id" sq ©rfd- lo daBi^B'ta^ T*0'v» J&cb tfoae betast
d-EffJ seins.5 lewaxiB e: .ilqiptoo di
eiHJtd add- dB d-aBlIeqqfi edt to jnsYiyr- s^b edi assw :}toiIiZ ai
♦ dnsfiiooB erid
• . jiiT
eild #B &flB ■^ai.bQos'iq d-aj/t aiW'xioia dartrid- to Gn& lol iiBmselBa 3 aB ximq:
M± b ■ JnallsqqB ©xld- d-Biid- {noi^ae;' rabioos odd 1:o 9
lo tB.ebiaQ'zl edi a/iW 600W.A.?/ d-Bit* ^aeIMoiao*fifB basL- Sab wen s^ll
9rid- bnij aasnJ:3j;cr srfd lo no ia tneqsse, eriic' sK'l&aroqTO
3S0I ;f3 d-aaicd-iaqob 'iso baai; 3 bealB^falBm. dfljslidc' ,; : .lanae
bexsiqatb e-isw aiBo basir .tmld- isloiiilll ^H]:1oe'■[ ^ddei^E 30i»vA rft
ai di;jo orfd iBsn £»gb ^iBwabiz erfd ,snlM.. o^Ig sirfd"
o/Id biLB d-d-oiixa fliws.I 10I xreaotauo smv iX d-Bifd- jj^aifiliircf r
; hi^la Y^av8 d-flaind-iarei) tibs 69b;j erfd^ d-B y*j:
itod osaias exi.: 'iisfiib-io nome'
^6* 'dW *Biitr ;. . 1 Moolo'o 00:9 bti'
anoltfoxrrdBXii lerfd-oirt bae J5tf<^Iqa!e aisif Y©rfd- nsrfw onoitoi/id-eai I
flBJXcaflflfi ©eerW *Brid ix^Bqr.vo erid to -xooiTto qotoe x^ X^b o& x^b m
ei^ziaomeb oi sibq QB&d^ ttte atood- baa b^^bib^ ©iCf baumB baa al b&iL-
them iSnd look up prospectiye ciistomers.
A short time before the accident in question, a prospective
purchaser (Willard Mahnesmith) called at the used car department
looking for a coupe. The salesman Lewin Elliott, had talked to
him about the sale of a car. On the evening of August 19, about
8:00 o'clock, the salesmen on duty at the used car department told
Elliott to take an Essex Coupe and see if he could catch Mahnesmith
at home and try to sell him the car. Elliott and William Holton,
the other salesmen, made arrangements for Holton to take care of
the cars and run in the garage the ones on display outside, Elliott
drove the Essex Coupe to the Mahnesmith home, a distance of 17 blocks
through the business section of Peoria. This trip was ifb de fbr the
purpose of selling one of the appellant's automobiles. After driving
to the home of Mr. Mahnesmith, and finding no one there, Wc, Elliott
started to drive his employer's car to his ovm home, when the
accident occurred and the plaintiff was injured.
It was the custom of Lewin Elliott and the other salesmeivto use
the Company's cars in going to and from their own residence to the
garage. They kept the cars at their homes at night. Jlr. Elliott
had kept t^ie same car at his home on the hight before the accident.
Elliott testified that he was taking the car home and was going to
store it and then get his father's car to make a personal cail. We
have not attempted, in this opinion, to set out all the evidence as
to the agency of Elliott of the appellant as disclosed by the record.
The appellant does not contend that the jury was not properly
instructed relative to the law of the case. One of the given in-
structions is as follows: "In order for the plaintiff to recover
in this case sbe must establish by a preponderance of the evidence,
under the law as defined in these instructions given to you by the
Court, the following three propositions: (1) That at the time of
the accident in question, Lewin Elliott was operating the automobile
within the scope of his auployment as agent or servant of the defendant
V?. A. Wood Company, and that in such operation was guilty of negligence
-4-
'ooL beM stBeTrt
tvodz ,ei tsusi/A to gninsvQ - H iaoiB aid
blot inet^iia<^3i> i£o f--^' ''^^- ■ ... n©ia»slj2.. -... ..iocT-o'o bO:P
■. invin r!.-.' iT
■r.v- nrft-
.nod-IoH piflJ: 1X1(7 f)xifl *•
9 At left &5 ^ ^ -w qil^ 3i.:_ ...
erf:t "T. -^T .nT.r-: ,..._ _;, .,„_ ^'„^^- .
.... ...... ^i
._ wiif avorti
; 'to &a(a»Qi!trr
.... - . .., .utlBt^
©e;J 0^eJir39l£8 'T'-.fi..''o srf.t PirfR .ir^oirrr ':;f-/^.''' l;c trr - \t ;■: i r o ^^r,'
0.'i;J^ Od" 90X1 90 i . . .
**OlII?. . : .- : ROD on
.ucefelooB 9X1: :.i,,_:i ... .:_ . ..
-at a&vlr rj.^t 1o ^r:0 .
'I'JV 00".
9fif ytl rf(y*i r
:niiol::r:cc r-
'.TfiD on, ... . .jgjsiBS
... ailt ^q&>' r.p.-
-nii9et Hi
......... .^j±f od
rqB 0iiT
iOXi-OIIfli'
o alii ...
as charged in one or more counts of the plaintiff's declaration.
(2) That such negligence, if any, was the direct and proximate cause
of the injuries alleged to have been sustained thereby by the plain-
tiff. (3) That the plaintiff was herself in the exercise of or-
dinary care and caution Syr her own safety at the time of the injuries
complained of, and iinmediately prior thereto, and was not guilty of
any act, or omission to act, by reason of the failure to use due
care and caution, which contributed to the injuries in question."
Another given instruction is as follcws: "If you find from the
evidence that Lewin Elliott, at the time of the accident in question
was on his way to his home, and that in so traveling toward his home
he Y/as not serving the defendant, W/A.Wood Company, but was taking
the automobile in question to his home for his own convenience, then
you should find tiie defendant, TS.A.Wood Company, not guilty, even
though you should find frcsn the evidence that Lewin Elliott was
guilty of the negligence charged in seme co\int of plaintiff's
declaration."
The reading of these two instructions discloses that the jury
were told in certain terras that the burden of proof was on the
plaintiff to prove, that at the time of the accident in question,
Lewin Elliott was operating the automobile within the scope of his
employment as agent or servant of the defendant, W.A.Wood Company.
The second quoted instruction tells tlie jury that if Lewin Elliott
at the time of the accident in question was on his way to his home
and was not serving the defendant, W.A.Wood Company, but was taking
the automobile in question to his home fcsr his own convenience, they
should find the defendant not guilty. Each of these instructions
squarely presented a question of fact for the jury to decide, via:
TiSas Lewin Elliott at the time of the accident in question operating
the automobile within the scope of his employment as agent or servant
of the defendant W.A.Wood Comitany? It is not questioned but that
-5-
aai/BO si-aKlxong bfre J»eiilJ sri* a si-; , ,. . oaas-t-^^sa-^ rfoira *«rfT (S)
-fli aCg ed* Tjcf y,d9tsdt beaif-i&its ao©rf evaii oi" jja^ellB asl-tsft^J^ ^rf* *''
-lo to aatotexe srit al lleai-^il esw t^id^nlsXg 9£f5- ^J-^rfT (K) .Til*
'.eliulai eAt 10 sniitf QtL^ ^f- vit??'^..?.?. ir^o ^^.r; -rcoi? r;-.t;\r"-o r-rrr. sitbo -^liMiiJ!*
'ic v^Xii/s ten asTT Ijcb « SenlS'-fcrfroc
flO±;ra9trp nJ: ;(-ii©f)loaB erf* "^.o ?ir-tc^ ,+^-^11? -!i??o ^ ?• :ai:!- 3srrcl^.trr
aeei{ eiil fiiBwo* n-'ri.'ier ^A1^ bay ,
xxsrfd" ,eoxx9xitevrroo rrwo siil lo"! sane. .t noitBQSjg ai eli .
flSTs (Trd^Iljjj^ d-oxi (-sfiisqittoO fcooW.A.S ,c}\QLB^n«l0j& ex» bnil 61.,
3BW *;foi:IIS itJtwsJ ;ffiri* eonaSlva srid" isoirt: ^jxit SXirotia j/ox ^t^odi'
z^llLinlzlq lo ;tili/oo ©iir)?. ni bsgiBrio (sojaes-t J^.sn oil* "to y^llv^
' .ixoi^BijalosJb
airi lo 9fl[C' 5licfowo;tm rri+ 7!!a;-tr»r!:^.rTc
• Taflq-WoO 600?/. , , -;?fw«>'>e5 ar ^satn^olqis-
aflod aJtif o;f xjbw l lOidefii;
^ SiiiTfe^ Baw J-i/rf ,'iflfigi»ToO ftooW.A.W ,d-flB&ndleJ^ erf* gnl-rreE *©a a;s*' fini.
^•xl* ,d?)0ein»vaoo nwo a Iff -eiI )9r»ori st.i ot iioi^caup nl ©XlffoTio^rirs c>7t«f
8rrol#o»i*«xrl eeaji* lo A)aa .xi^Hnh ton (fjrs&jEtstlsb sfft '.
isJCT ««l>lo«Jb od- '^irt ©jf^f lol #-ocl lo noJ:*a*»/fp 3 b&in
^airriM ao J-a^^c ais *fl?*flrfoIrfn« , ^^f ^o eqose erft wirf^fi^ ©IltfomodirB orf*
*flri;J- ta<i btntoitaaup tfo;: VYjri«^j«oO fcoo'4.A.* iuBba&tQb edi lo
these two instructions properly presented the la^ of the case. The
jiiry by their verdict found the issues in favor of the plaintiff.
This was a q^uestion of fact for the jury to decide under proper
instructions, and after reading the whole of the evidence, it is
our conclusion tM t the verdict of the jury is not against the
manifest weight of the evidence.
It is JdscK next insisted that the appellant* s car did not strike
the appellee, and the verdict of the juiy is manifestly against the
weight of the evidence in this respect. ,The plaintiff testified
that she alighted from a street car and started toward the sidewalk
at the edge of the curb, when she was struck and knocked down by
the automobile of the defendant. There were several eye witnesses to
the accident and they disagree somewhat in regard to just what
happened at the time. Some of them thought the automobile struck
the plaintiff; others said they did not see it strike her. Three
wi.tnesses v/ho were present at the home of Annie Dennehy, testified
tha.t they heard Nellie Dennehy say to Lewin Elliott, "Are you the
mp.n that hit her?" And that Elliott replied, "Yes, I hit her."
These questions, as T?ell as the question of whether the plaintiff
was guilty of any contributory ne::^ligonce tiiat was the proximate
cause of heiT injuries, were questions of facts far the jury to
decide. They had the advantage of seeing and hearing the witnesses
testify and observing their demeanor upon the stand and v/ere in a
much better position to judge the credibility of the witnesses and
weigh their testimony than a 0ourt of Review. It. is our conclusion
that the evidence in the case justified the finding of the jury;
that it was the negligent operation of the automobile in question
that caused the injuries to the plaintiff and she was not guilty
of any contributory negligence that we.s the proximate cause of her
injuries.
Another assignment of errors relied upon for a reversal is,
"that the verdict i? excessive and is a result of sympathy, passion,
and prejudice." The recital of the facts concerning the plaintiff's
.^IJt^aiBlg add- ^o ^ov-rI Hi asussi ?^ri'3^ onx/ol d-oj:l)^©v iiexl;t xd x'iVl
leqoiq isbms eblv .uil, sriC . :o noid-aex/>. sldT
at &£ teoaebive &d^ lo slodvr srf» ^cuibBsi -rod-le bu& ^ancl^ouiien.!
Bdt JanxBSJS d-oa al -^il^!. and" "to to. d ^fid;^ floJtsijIcaop luo
ouflid-s *oxi bib ibo s^ia&lleq: b©*aJtsii± txea i^m
iieili^aa;? I'iliaiRLq eUT, .d-oeqaei aiifcJ^ jni: oonsJ&iTo eild" to rf-flslew
3ilsws6x8 &di diBWOd" 6arf"rLB;fs fixia t:bo ie&iia b saoit £>9+xfeiia ede *a4*
Ya rt^ _-o £)y.-)Ioon:{ fens jfowid . « ■luo oii.i- 'ic sj^Ji© axltf J^
arf^ ceeaafl^lw 9\e Ibisysb aiaw 6^s , ibasteb Bdt tQ aIMod i"
2loj:rid-B eltdomotut. end" 3-rfs>x/0£fcf jaexti to aBSco§ .emxc^ ©a* ;fi3 jbjRJ*»q;^«|l
esTxlT .isrf eafiir :>if> ^^J &jLj88 a^srld^c jtlid-xiAjsIq eiW
SeitiJaed- ^jAaasiQG. &i.aaA lo anori sxirf- -jb J-aaeei<f ©"ssw oxirr ?ii9ae©fl;fjtw
8rid- i/OY siA" ,d'd'ox.CI2 nlTT-eJ od" "iss Y^enxtsO qIIIs?! J&iJ3ia£l xed;} tBiit
•^.idri *lx{ I ,asY" ,5oJtXqai JyoiXXSi; *B4d- JbixA "?T;aif *ixl dfirid" ruaffi
ttWA rfd-ejEftr to xtoid-aeup sflcT a^; ILev qb ^anox-aan/p ^eriT
- -em imi sonsaiX^Asxt irno^^wcfi'iJiiDo ^^b to Y^XiiJia sbw
jot a*0Bt to aiiol*soap a-aew (Bex'ij.ftxix lad to sbubo
8©8aa£rd^J:i7 yit* s^lTeorf bqji :^al99& to esfivnBvSfs acfd- bsti i^AT ^obioeb
B nl Q10W bnBi bastQ oxW xiogj/ lonaeiosfi ixsrf* suilvTsado i>nB Y^-J^*es»J'
AAA aaaaaad^iw adJ to '^iXl'fXJbf i*iaoq %ett9d dovm
30 is . vjtvsfi to *iyoC x^OiniitsQcr ilarfjf ilgiew
.1* to ani&flit 9il* beJttxd-t: t ni »fiaal>ive ari* iadir
aoli^ J ci •; r^roluB 9d.i to xrQ)i;}-3iecro d-o©?\J:X!aaa aif* savr J-j: d-srii-
I^rXxwr. *on a£w eife 6ae tti<fffJti?X jbo fadif
1&A to ©R/iGo e-^BBLbcoiq &d;f esw *jarf* apaoaiXgen Y^^wrfi-x^titoo x^b to
.8©Xli;;i,nJ:
,aJ: Xaeaovei u a:ot jaoqx/ 6ei.r 3laaB xedionA
,uolsaaq .xdiaqancz to ^Xxffiie'r 'iaeooxa el i-olA^ar ari* ;f eitf
a*ttl*sia£g srid- gnlnisonoo a;>03t ajcl* to Xfl*lo9i .'MiT ".©oilmte^g Ms
injxcries end the argunents of counsel relative to the verdict
being excessive are vsry, very meager and gives this court scant
information in regard to either the injuries or the law applicable
thereto. It seems to us the verdict for $13,500.00 is very liberal
for the injuries stBtained, but we cannot say that it is a result
of passion or prejudice on the pcTt of the jury.
The appellee hci s assigned cross-errors In regard to the
admission of evidence offered on behalf of the defendant on the
trial of the case. This evidence was given over the objection of
the plaintiff. The conclusions v/e have reached frcm an examination
of the whole record makes it unnecessary for us to pass on the
cross-errors assigned by the appellee.
We find no reversible error in this case and the judgment of
the circuit court of Peoria County is hereby affirmed.
AJFIBMED.
tu&OH t'ssjoo Bin asvlj hna legfiaxn x^sv ,'\fTsv sts syIebsoi© s«-t9tf
ISTStfil Yi»v 3-^ 00.008,5X1 TO'i Joifiisv sifd .icsae il ,c&&imi^
iivser. b at Ji ;fssit xb& toaoBO sw iad ^''J^alst mz eettttttii edi ic'
.ijTtJTi; eif;t lo d-Tr5q- efftf no f^&lhulQia 10 noJtssflCf '^:
orf* flo *jntB.6n©ls? nrf* to IXadsrf no B®i©1:^o ^-^rrobir® to aolaelnif).
lo noiio^ido ari;' - 37^3 asw eoaaftiye .asbo rSd* to XbIiS-
aottaatmsxe sm tssi'tt Bi^rfsBn-r eTBfl 8T7 arroisi/XofiDo arfT .ttiJai sCg erf.-^
©rft no sssg o:f 5- rsa3S09fnm j-J: ■?3:?fj3.rr' Atoos7 sXotfir erH" t-
to #iiec36r/'c eritf bns ©sbo alrft ai 101^8 eXcfiBtEsvsi on Snlt eTf
. bsfiTTitt a Y^s'^^sd ai y^^^^oO alioel to tiisot itud'r.lo qsx-.
STATE OF ILLINOIS,
SECOKD DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this dav of
— ^in the year of our Lord one thousand nine
hundred and thirty-
Clcrl' of the Appellate Court
(73S15— oM— 3-32)
AT A TERM OF THE APPZLLATE GOUT
Begun and held at Ottawa, en Tuesday, the fou/th day of February,
in the year of our Lord one thousand nine hundred and thirty-
six, within and fcr the Second District of the State of Illinois
Present — The Hon, BLAINE HUFFi^/IAN, Presiding Justice,
Hon. FRAM<LIN R. D0\^ , Justice.
Hon. FRED G. WOLFE, Justice.
JUSTUS L. JOHIISOM, Clerk. /^ O ^
RALPH H. lESPER, 3hQ?iff . '
BE IT REMEMBERED, that afterwards, to-wit: On
APR 13 1936 ^^^ opinion of the Court was filed in the
Clerk's office of said Court, in the ivords and figures
following, to-wit:
Oen. No. 9031 Agenda ilo. 10
In the Appellate Court of Illinois
Second District
Februairy Term, A. D. 1926.
Stanley Boski,
(Plaintiff) Appellee,
Appeal fron the Circuit Court
vs.
of lake County
Anthony Durka,
(Defendant) Appellant,
WOLFE, J.
In January 1933, the plaintiff, Stanley '"oski, filed a
suit in the Jircuit Court of Take County, against the defendant,
Anthony ^'urka. The defendtrnt, by hin attorney G-eor^^^e S. McGaughey,
filed an appearance v.b follovTs: "I hereby enter the appearance
of imthony Durka, es the defendant in the above entitled cauKe
and myself as attorney herein," On the same date, on motion
of salri ■ ttorney, the tine for the defendant to plead was e.'-
tended for .'^O days. On the 13th day of ilarch, 1P35, the follow-
ing order was entered by the Court, "This cause being called for
trial it is ordered by tie Court tbitt said suit be and the same
is hereby disrruiesed for ?;ant of prosecutioii."
On ?!arch 18, 1935, the following order v:as entered in
sFid case. "This day comes C. C. Snyder sssoclate counsel for
the said plaintiff and on his motion it is ordered that the
order of dismissal heretofore entered herein on March 13, A.D.
1935 be, anc' t^ s same is hereby vacated and set asi(-e and said
cause reinstated. And comes also C}eori";c 3. McCaughey, attorney
for the defendant herein, and on his motion, it is ordrred that
his appearance as such attorney be and the same is liereby with-
drawn and that the appearance of Hall and Hulse be, and the
same is hereby substituted therefor."
On May 7, 1935, the plaintiff filed his complaint at law
Siloatlll tc -^iisoO sdellsqqA arW" fli
vollol -^ "■ ^orceorrqB its 6»IH
....... ■_,.■. ' • '-^•'■t,^, 8B tlsa^tt &nfl
.iBb OS tcol 68 5ne*
•tot dellBc .w. .... . . ^j..>^^'j 3di i£;cf bd-isdrrfl saw lebio sai
era«B '.^•+ ^■~' -^ ■ ' •'^•'.'^ 5x88 tAifd- *ii;oO oJ^ vcf boTSfiio at *J: lat-rt
.icliuoBSOTq to ^fnaT? lot beaairsatfi trf«^="^ "^i^
to': r»8auoo otafooasR la&Yflc . , .i^iaoo y^* axri7.'" .naso j. -
1* jMf.+ ri-^tdfiio 8| tl aottoK s.i.d no one ttJ:*a.i:oIg &1»r »rt*
.CLA ,8/ no aXen^A hoi^tnt* ^totojfeisK r ^^>r raif) 1© n^Mo
bias nrr.^ 3' t«fi Je* ftajj f>eJ'a08V Yt^®i«i'' ai s^'^- ''«« ,»tf '-Sei
o?>Tt .ftio 3i *i ,noJ:toffl aid no ftns ,ai9'teA ^flsftAstefe ed* lot
-rf^lw ^rfoi»/I el omaa arfi^ bcB ed ysmotifs rio0iB aj3 eonstCflsaqB eirf
silJ bnB ,atf selirR bas IIjsH to ©orxBiBaqq£ srfit *firi* baa awaib
".Tote-iodcf 5e;ti;*i^8djj-a Yooi^d ai eiHBa
wsl *s tflialqflioo siri 6s fit ttitnl/iTa rfd- ,geei ,? YaM nO
-2-
coneisting of three counts in which he charges that he was em-
ployed as a carpenter hyrthe defendant at the rate of ;H0.00,
per week plus room and board, and that later this contract was
modified, and he was to work shorter hours and receive i^32,00,
per week plus room and board. Ee further aaileges, that under
said contract, he worked 2b weeks from May 195E, to October,
1932, and earned the sim of .^?957.00. ?Ie gives the defendant
credit for payment of $310.00, and asks judgment for $647,00.
The defendant filed an answer in which he denies that he
hired plaintiff for a stipulated siam of .i;40,00 per 7;eek or tliat
the plaintiff worked for him from :>'ay to October in 1932. Ee
denies that the oral contract of 40.00 per v.eek was modified
to §52.00 per week plus boarajford romsi or that tjie plaintiff
continued to worv for h-iir from October 3, to October 28, at
such rate. He denies thr-t there became due and poyable from
himself to the pleintlff the sum of |957.00. He denies that
he paid the pi intiff only the sinii of $30,00. Ee further
denies that he had not paid the plaintiff the sum of $647,00,
The record shows that without objection upon the part
of the defendant, the case was submitted to a jury and evidence
was introduced on each side to support their pleadings. At the
conclusion of the evidence and arguments of counsel, the pldin-
tiff and defendant stipulated that the jury might return a
sealed verdict. The jury found the issues in favor of the
plaintiff and assessed his damages at ;#647,00,
The defendant made a motion for a new trial which the
Court overruled, also a motion in arrest of judgsaent, vfhich
was likewise overruled. The Court entered judgaent on
the verdict in favor of the T)]a intiff in tha sura of ,^^647.00,
-s-
sen iOBitnoQ ai
,00.251 9Vi©©ei
o«6 smoi ei/Icr :>I»»w •!?€[
T o -'Tr .:•■ n
■sr (2A.i" -i-'riri-t
.00.''- ■ ">^ Jiiaicr
.^•v rr. V^eW 19q 00.
ddi'iJLftortf asw >fe»i* ■i::jq; 00.-. . . ..
^ r-. -fAQvr 1:65 00.''
law o:i ■■ -I
1^ llisl-nJiBlq ed^ bisq -- ... :-.,..# ac«.tHe£)
-fliil.; J . , ;3on96iV0 e/l;i- "to iXOJtl»ur.Mtoo
erfif to TOvsT sl!: r.Qu.^i &jlt baao'i x'nsl «i^T ,if>::b-ifir :
'--5 a;ii.--, -;.-r?.p,5 ajif feeaaeses feius 111.-.
o(W rfst.-*7r let*: ,^5j9jbj ;fxiB|)rt«Tt©f) tsif::
,x)©Xjn:i©vo ©ax..;..-..- - ...
no
,00.T*9.S '.
ui aCcr orfd- "tn '■.t'.vp.'i
,v Mrr,+
-3-
and costs of vsult were assessed against the defendant, who
brings the case to this Court for review,
, The appellant, claims the trial court lost jurisdiction
of the case when it was dismissed for want of prosecution,
and therefore the order entered on iarch 18, reinstating the
case was a nullity. An exariiration of the record discloses
that this point was not urged in the trial court, but raised
for the first time in this Court. On the sarae day that the
case was reinstated Hall and Eulse entered their appearance
as attorney's for the defendant and proceeded to hear the
case. Ho objeotion was made that the Court did not have jur-
isdiction of the parties or subject matter of the suit. Any
objection that the defense night have raised as to the juris-
diction of the Cotirt h5;s been waived by the general appearance
of the defendant and submitting the case for trial -without
objection.
At the conclusion of the trial, neither the plaintiff
nor the defendant presented any instructions for the trial court,
nor made eny sxiggestions, as to how the court should instruct
the jury. "The court did not give any instructions to the jury.
The defendant now assi.^s this as error. At the time the defend-
ant filed his notion for a new trial in the trial court, he
set forth the following causes in support of his motion for a
new trial. "The verdict is contrary to the weight of the evi-
dence. The verdjct is against the law. The verdict is against
the law and the evidence. The court admitted improper ana illegal
evidence offered by the plaintiff over the objection of the
defendanto There is no sufficient or substantial evidence to
support the verdict." It will be observed that in this motion
there is no mention made that the court did not have jurisdiction
of the defendant, and the subject matter of the suit, and also
noicfolfiEXiJJt- JJ'aoI d-itfoo IbIteJ ad* SiniBX© .^fcslleqqe exlT
,noi:;ti;os30'ig lo ^new nol boBslsfBib aaw &1 nsdw ssso adt lo
arit gnitBJarijtsi ,81 doisl. no b&i@Sn.s lebio arid- eiole'zsdi baa
eeaoioaif) BTiooei srlii 'to aoii ealMSX^ - ^ ^ asw aaso
Baax/v .j'UJoo lB.tT:.; A bs-g-w *gjb ^a?/ jsxoq EXrfJ tadt
Bit tBdi XBb afiiaa edi^ nC .oiuoO «j:.1.t aTI ^mXt tBii.'^. qiIj toT:
©ofljBiBsqqB lisdd bsi&iaa salsrH fecta IIbH be^eitzntei bbw aeso
arid- iBerf oi behQOOOiq Mb (J-asftnaleB Bri^ tot s^y^nioitfB bb
-•mt ovfixl cfon Di6 d-rrjJoO Silj^ jfl4^ efiflci sbw j:ioxifo©t.do oMi .eaao
YflA .d-xue 3if* lo T:si)";fBac Jootcwa 10 B9i#TB<j eiic^ ?:o coJ:*oxDe!l
-aliai siir: oaaJtBi ovari d-risirct aaaels.b edi isdt noltoeldo
aoiiBTBagqB Ifiienas Q^' -3-^J^ d'-u/cO o.Ij 'j:c no Wolf)
Ji/oilrf-x V' IsxT^t lo" fil^ticicfws baa cfiiaSnelgb ert^ to
♦noiJoetdo
ftiijoo lei- rot afloJtd oj^^d"a nl y^JB Joed-aepeig d'^Bfinsslafi 9ri;t 10a
d'oi/Ti'sni bLuods tiiso laoMue^^a y^is sJbBni rcoxt
*X'^l 9rf* od" axtoi^oi/idsci -^jflB ovJts d-on £»lf> rf-iijoo oifT .xissl adt
-baeleh e/ . toils cb eiffr BrXciX^ee i^on *iiB£>n©'Ss6 erIT
erf , J'UJOO LBi'i lol swi&om aid be Lit tna
3 10I xtoii^ofli .t'loqqixs xrl aeeu-jBO saJfe-wsIIoT-. a/lJ x[d"rol: J-aa
-Ive aif* to trigiafw axid" . d- YiJSTd-jnoo ei toifiTtev ©riT" .leiTiJ" iren
dealB^^B 3i: d^oift-iav orfT .wbI aild- tsrcxBSB ai .+oc5i9V etfT .aonsi>
IbsoI-Cx jjHfc aego-xriBl betttiaba ;rai;oo ©riT .oon^ftive ari* baa wbL edt
ail* lo noxJoatrfo ed^ lore tli-^alalq )iiJ- xd f>eie«o eon9btV9
oi Boa&blYQ iBiinBtudsjz 10 iaetoittue 00 a,;. sisrfT .*nfi*fl»t©fi
floi^ojE aind- nx ;^arij- bevisado ad Hi . . b-xav ail;f tf-ioqqxra
iXol*oil»8ii;;t 9VBxi ton btb Jax/00 sii;^ c-arl;^ ei)m Dotiasm. on ax sieil*
oelB boB , til/a o;£;f lo lecfctBin d-ooQcfwa erfj fine , d-nBJbfrelaJ& ed^ lo
-4-
no mention is rris.de of the fact that the court failed to Instruct
the jury relatiiaie to the law of the case. These questions are
raised for the first time in this court. In the case of Srickson
»s. Ward, 266, 111., Page 259, at page 266, it is said, "It is
further contended by defendant that no recovery was author! -^ied
because it was not shown plaintiff had a contractor's license,
as required by the ordinances of the City of ChioagOo Whether
there is any merit in this contention we think is not here
open to review. Defendant filed a written motion in the trial
oourt for a new trial, assigning t?^enty-two reasons therefor,
but in none of them was it stated that a new trial chould be
granted for the reason that it was not proven the plaintiff
had a license. Where a party files a written motion for a new
trial he will be held to havemived all causes therefor not
set forth in his written motion." To the same effect is Lerette
vs. Director general 306, 111., 348, The appellant has ^vaived
any riglrit that he had to prevent these questions.
The appellant seriously insists that the trial court
erred in not granting him a new trial because the plaintiff had
not proven -his case by a preponderance of the evidence. He
does not now seriously contend that the p3a intiff did not do tbs
work which he testifies he performed, nor that he agreed to
pay the plaintiff the amount claimed by him, but he insists
that the plaintiff has been paid in full for all the work
viThich he did for him. The plaintiff* s Exhibit 1, and lA, ?/ere
admitted in evidence and they show the earnings of the plaintiff
and the money received tXxme. from the defendant therefor. The
defendant's Exhibit 1, shows a check in payment to Stanley
Boski, from Tony Durka in the sum of |8.00, vilth an indorsement
on the reverse side as follows: "Paid Ful Stanli Boski 5 Dec. —
1932 Stanli Boski A Stasevich Staley Bosk6 Signed hims im self."
iovitsat o& ballot ^tjjOo ariif ^adi •<y(ii:.t Gdt 1c 9&a» al xxoiifleia ofl
etts aiiolJaflii'p saariT .oasa ©xitf 'lo wsl arid- c;}- esfi^cXa^c TW^t ad*
noailol'ia to aaao erfy ill .^tsjoo alA4 al &siXi titin ^d^ lol bealBi
ai &!" ,SJtBs ei ;^1 ,dd& ©SBq- .ts ,98S 98B*I ...tll .SoS ,5>1*W .aw
^QB£mo£l a "io*oeTf HQ 0 B £)X3Jl llid-nlfllq iiwod& ton bbw jfi saiiBOod
i9ii#sifW ,QSfioJ:iIO 'io y*J:0 ©do lo y ©ohbxi IfeTio »i{tf -pf fcgrcii/pei bb
9i9i{ *on aj: ^fniriJ 9W aoiiasiaoo axM ai litem ifius ai aiejl*
iBiT* sil* ni notrfoifi aeiiirm b beltt drxisfeflstsa *\^Qi've'L oi .««go
ad filiforio Isit* wen s d-sd* £>©d-B*® ;M asw jBTsjeI* lo aflon j»J: tud
Itlt^atalq edt asYoiq ton asw li *.6j1* aoaee'i: f; o'^tasTB
ursfl ii -lOi noxaoin nB&tliw b zelxt Yiiifiq 3 eisfl,'/ ,ea/it'OiX ^ ,I>bjcI
lOB loleiorid- soeuso lis Aovifl? evBri otf- bisjd o:s ILiv on Isiit
srf-Jerc^J ai ^oetl;© esa&3 arfo ..loid-o/a ixeWxiw aid aJt rid-^ol: tfea
66 vim eail ;^n.Blleqq:B edT .8:^5 ,.III ,aOB iBiaaes loJos^iG .av
.acoijfeetfp sasxiS- ^fnersicf oJ- />ari aif #aii* d"dsii y^^
d-ijjoo iBiij 9£f* 0-sri:f sct-siaai Y'J^eJ^oi'i®^ IflBlXecjqB erllT
bsti Itttals ' .^BiiBOQii Iciicl- wen .3 rairi :i\ni*issTg *ofl ai bsiis
3ortBiQbttoq&ic 3 vcf ©aso aid asvoiq *on
^J o.) &oir. btb fitiai latg eri^- taiit baetaoo YX«J^c>-^^-'e s-oa -ton aeof)
o;J- SeQifeB dri d-srid" ion .bscraolaa'; 'vff ssilxlas* @ri doidw jfiow
staiani eil ^ucf ,flLtxl y<^ &3Biifli.o d-nuociB ©ril tttialBiq sdt xsq,
ilrtow srid- llsi 'ic j isg noscf aari ttid^nisXg ariJ d-ftrid-
etc.? ,Ai haB ,1 d-icfj lid-fiiB.: .mill lol I>i6 eri xloiriw
tlitaifilg qA^ 1o eaflxfltaa sifir woita ystld fcas ©ofreMve ni Berf^d-ljafifl
Y^lBsd'Z od" d-nefiTYfig xti :>{oeilo s aworfs ,1 Ixrfirfxl e'd'aR&ffs'isJJ
tneweaioJ^cl nii ncJiw ,00,8^ "io msQ erij ni S3lix/a ^?[ffloT BOTtl ,i>CBoa
— .oea 3 i:!(aoa 1106*3 Jj/lf JblB9[" :bwoIXo1: ec »6±a ©B^ar©^ srii no
".1:X©a fli aaM &*itt5ie <WaoS ^sXisd-e doivesBd-a A li{&o« iXaa^^E SCBX
-5-
The plaintiff Boski testified that, "he could not sign his
name "Stanley" and always signed his name S. Boski." "That is
all that he ever learned to write,"
This case was submitted to a jury for their consideration.
They had the benefit of seeing the Tvitncsse& on the stand
and of hearing them give their testimony, and are in much better
position to weigh the evidence and judge the credibility of the
witness than a court of review. We would not be .iustified in
setting aside the verdict of the jury un3ess, v/e can say that
it is manifestly against the weight of the evidence. Whether the
plaintiff has proven his contract of employment or accepted the
check as payment in full, or liad received from the defendant, all
money that was due him under the contract, were all questions of
fact for the jviry to decide. V/e cannot say from e review of the
evidence that this verdict is manifestly against the weight of
the evidence.
v/e find no reversing error in tiie case and tne judgment
of the Circuit Court of Lake County is hereby affirraed.
Affirmed.
Bid a^te. ton blvoo oti" ^tM-J- b&.lttifie;^ ijfeofl tti&ntBtq, effS
Bi 3-jBiiT" ".xrdeoa .3 emsa aid fiensie a-^swls 5xib '"^aXii.3*8'» ©msn
.ffoi;t-Bi9bianoo ii&d& lol yTCtrt ^ o^ betttmdm: asw ees© alr^^
5fTA^K erf* pto aasasci-iw 9i£;t ani^sa t^ ttt»ff&4 siftf feM xCtfT
i&;ttf, 'mB ,iji3toiaita©;t •£!««# HVts "S^rf^ sfilTJiarf lo fcflis
8£{.+ irAie . ifoisw sffct iJ-enissB ■^^[Itaa'iliiMr al ^1
«>£{;?• 6^*q-900B ic .;i.c[ narotf esif Ttitnieltj-
ILa ,tnfi6rto1t«»6 »if^ iff oil Ssvisoei f- , tlirt: itt ^iSesYST '^s^ ilosrfo
tc ^dgle'v 9riJ^ tfaiiisss ifXjastiiiBlB si toift^er aiffJ- tjssJ# tofts&lre
. fisrirt i'5:'iB vcff .Jtirailt) ©dd- lo
STATE OF ILLINOIS.
SECOND DISTRICT J I. JUSTUS L. JOHNSOX. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tlie keejier of the Eeeords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled caaise.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
Jn the year of our Lord one thousand nine
hundred and tliirtv-
Clerl- of the Appellate Coiiii
(T3S15— 5M — 3-32)
AT A TERM OF THE APPELLATE ,/:;0'
Begun and held at Ottawa, en Txiesday, the fourth day of February,
in the year of our Lord one thousand, nine hundred and thirty-
six, within and for the Second District of the State of Illinois:
Present — The Hon, BLAIME HUFFMAN, Presiding Justice.
Hon. FRAl^CLIN R. DOVE, Justice.
Hon. FRED G. \TOLFE, Justice.
JUSTUS L. JOHITSON, Clerk.
RALPH Hw DESPIR, Sheriff.
28 5I.A. 598
'^
BE IT REIffilVIBKRED, that afterwards, to-wit: On
^f"!^ 1 3 1936 '^^^ opinion of the Court v:as filed in the
Cleric's office of said Court, in the 77crds and figures
following, to -wit:
GEN. NO. 9040.
AGEtlDA 13.
IN THE APPELIATE COURT OF ILLINOIS
SECOND DISTRICT
FEBRUARY TERl^, A.D. 1936.
J. EDWARD R.ADLEY
(Plaintiff) Appellant,
vs.
PHALSN & CO^IPA^^f, INC., a Cor-
poration, GIEIT J. HXLDEBRAKD
and KEITH S. FRANK,
(Defendants) Appellees.
Appeal from the Circuit
Court of Peoria County.
WOLFE J.
This is an action brought by J. Edward Radley, an attorney at law,
against Phalen & Company, Inc., deitiers in securities, and their
alleged agents Glen J. Hildebrand and Keith Franfe, stoclc salesmen,
to rescind a contract of sale for certain titocks alleged to have been
sold by the defendants to the plaintiff, through fraud and misrepre-
sentation.
The ccmplarint alleges that Phalen &, Company, Inc., were enga'^ed
in the sale of securities; that Glen J. Hildebrand and Keith Frank
were selling their securities in the City of Peoria, Illinois; that in
August 1933, the defendants sold Class A, common stock, of Gipps
Brewing Corporation, and to further the sale of said stock, the de-
fendant, Keith Frank took the plaintiff to the office of Phalen &
Company, Inc., in the City of Chicago, Illinois, in August 1933; that
while the plaintiff was in the office of the defendant, he talked to
various officers and agents of the defendant company about the Gipps
Brewing Corporation stock, that relying upon the information given to him,|
the plaintiff sold 100 shares of Muessel Brewing Company stock for
|737,50 and the defendant sold the plaintiff 100 shares of
.o^oe .on .m
^lOKlIJJI W THUOO STAIJSn«IA. aST HI
ilisoiiO eriit noil: IsscrgA
.av
3Z f)l
ciiaijiaslsa iood-s ^:A£ib'X^ xltis2 Mb Anfrttfefcl.t . CO c^hb^b be^sl.
-©rcqeiaxjBi baa buRit tiQuoisii- , tt l^a i alq- edt oi ar^m56aotcs6 orf:^ y^" bl
afairi'S iftf-lea fixts bfiBitfsJbliH .T. nsIO t.ori^ ;eeId-iijJoea 1o elsa ari"
fli jarf.t je.crnJt rcfiO 9ai<t- ax aei^iiJJoaE lierf* srclllss eii
(3le>oiha aof , ■ Coii BiaBbnel&b sd* ,5GeX tfei/sj
d- l'i:J:;t'jttJ:Blqr »/!;»■ ?{ootf ■AnQi'li di-ieX trf-flBBxii
•■no ©litf xii -;£tw "i-iiJitiaEr Jt
lot iooJB Y^nrrmoO aniweia l9a»'««}tt lo a»i»rl8 001 fiXoa "ilid-niflXg s:
to aeiBde OOX llWnisXg 9ii;r f>Ioa J-nj85nolo6 ©ri* fixiB 05.^5'
ll Id eoir
Gipps Brewing Corporation stock at a cost of $S520.00; that the
plaintiff received 240 shires of class A, caramon stock of said
company.
The appellant charges that the defendants represented to
him that all shares of the Gipps Brewing Corporation stock had
been underwritten and sold, and that the money for the same was
available for the company; that all financing had been completed;
that the Gipps Brewing Coirporation had sufficient funds, or would
be delivered sufficient funds from stock sales to enable full
payment of all nesessary equipment for the manufacture, sale and
distribution of beer; that the only indebtedness, after the
delivery of these f\mdc, v/ould be a mortgage of $40,000.00; that
the Gipps Brewing Corporation v/ould have enough capital, after
paying for equipment, to be in actual production of beer within
50 days, and at the most, not more than 90 days.
The complaint further charges that on February 3, 1934, the
plaintiff learned that the financing of Gipps Brewing Corporation
had been only partially completed, and that only one-half cf the
stock had been sold; that Phalen & Company, Inc., had arranged
with the Refinance Corporation of Chicago, to complete the
finance program and start an active campaign to sell 70,000 shares
of the unsold stock; that the brewery was completely reconditioned,
but could not start active operation because of lack of money;
that 8 creditor had filed a bill to foreclose a mechanic's lien
to compel payment of an indebtedness incurred in rebuilding the
brewery; titat other creditors had not been paid and were threatning
to file liens; that unless new financing could be obtained, the
brewery would never go into active operation.
-2-
Qtii isdi ;00.0a«# lo *aoo •.- .looda acliffioqioZ sGjrwsrca RqqlD
f>ise 1o Moo;fa nomr. ,' -r- Cr '^" ^---•- >- • e r-..->,..^.r iV^trilBlq
bsri ioo*3 ££c.c;}-BTCoqT:oG sflJtweiS agciiO atl* lo asiBrfa ILb t bM xsiM
;6s*9lgiaoo aoed bBrf rvniorrenit lis tsdf i^^iajnoo e^^ ' -■■^■'^ -^ r-H-^i teva
bJjsoyr 10 ,a&airt d-nsioniwa 5BrI aol^Bioq^ioO suiweic ...... ....,J ;fBd;t
IXsft eldBtxe o* ae Cb« sIoodTi noil abni/l ^astozJtL'P "i->t-l- r-?-, <=(cf
f)fls else ,siiid-0i3'i.cjnBm erf* lot tnornqtispe Y'3CBaa©*©« - - • - -\.-^.
sdi laitB ,38 6a59d'cfs5ni Y-f^no eil;)' tsdi jiaocJ 'io soi^udiitsifi
*BXl* ;0C'.000,0^4- lo ssBS^ioxir b 9cf bSjJc-j f^bassl aearfJ- Ic visYlIsfc
isitB ,l3d-j:gso dgi/ona 6vb£[ &I1/0'- noiteioq'ioO sniwsia aqgl-D 8x1;^
nlri;Mw 'leed to n.ol:fosjboi'y LsuioB ni scf oi jJ-naciqJX'ps t^^'* ^-^^'Y^Q
,exBb QQ audi 91001 d-on ^taom odt tB .f-'Ci. . <*'<^'
ari* ,^£91 ,5 YiBWTcfo'tf no izdi aegiflrio loxf^ix/l twiBlcTEDo - '
floitsiDqioO sxiiweia aqcjiO Tto ^ioasait o.rft d-Bffd' banii^I .. i"^
be^a..-^^ -.. t..,._ ( viaqiEoO & nslBriS' *srftf jfiloe nsacf bfM.
;Y««oe to ioBi lo eaiffloocf aoiiBieqo «^ ;j'^<? jJ-isd-a *on filuoo iud
flail a •oljttsrioepi b ©aoIoeioTt ot lltd /.. .^ "^^rl lotiijp'^'' •- ^ off,+
9rf* ^albilvdet ai b&itfjont azQabetdebal . .. .^msviBc ■. ......j^., . .
p,n.trxtrji tifJ eiew 5xtb B.f en- rr^^^^f .-Pon i=ip.rf aioJifisio -xsrfcfo iteric)' jYi®weicf
,oo,ij:ij*cfc j:r !.._.: ._....... woii asoliix/ J-i2JlJ- janer.' ..-.rfi- rn-
The petition charges, the renresentations were nade by the
defendants to the plaintiff for the purpose of enabling the de-
fendants to dispose of Gipps Brewing Corporation stock held and
owned by them, or stock contracted to be sold by them; and that
said representations were false and fraudulent. On April 6,
1934, the plaintiff tendered to the defendants the shares of
stock which they had sold to him, and demanded a retui-n of .^720. 00
paid for said stock. The piSiintiff asks for an accounting and
and
return of money paid to the defendants/ for rescission of the
contract.
Phalen & Company, Inc., filed an answer, in which they
admit being dealers in securities and that plaintiff visited
the office of the defendant in Chicago and sought information
about Gripps Brewing Corporation stock. They deny raaking any
false, deceitful, untrue or fraudulent representation or
statements, concerning the stock, to the plaintiff or any other
person. They admit, that the plaintiff purchased from them 240
shares of stock as alleged in the complaint. They further
admit that they were engaged in selling Gipps stock and they
do not deny that they owned stock or contracted to dispose of stock
as alleged in the complaint.
Glen J. Hildebrand and Keith W. Frank filed their joint
answer in which they admit that Hildebrand is a salesman, but
alleged that Frank is an employee. They admit that both are
agents of Phalen & Company Inc. They state that all information
which they had regarding Cripps Brewing Corporation stock, came from
Phalen & Company, Inc. The answer admits that the plaintiff
visited Phalen & Company's office T7ith Frank and had conversAtions
with Phalen Company agents regarding the sale of the Gipps Stock.
-3-
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jferfj .9d"oj3i:*noci xoc &©nwo
.irasXtfbxreTl was ©sIb' c^floxj-s^osasTqan feJCBa
OO.C Jb©f>flja£09J& dns «raM otf filoa ^£iil ^©Jcf* rfoidw sIoo^Te
'iHictTii/ ooofl rL.3 lol 3:^feB ^tXvtn.t:iJq srlT .3loo:t-a filjae lol Jbisq;
^*xaiv llid-flxslg *jBr[# Bub eelJl^ii/osB ni sieXijef) galacf i imbB
floi;J-.3nnotaJ: drfj^x/oa ibnBO@j80.cxfO iii tnsbaetGb edt lo ©olllo ext^
YHB gxiXTlEm YJ^sfc y^^'^' .2locd-a noiJBrcogtoO §xii^o^rS ag;gK» JxrcdB
10 aoii-B*n&39"iqeg: *xisiixA«BTl 10 sjt/'xd'iuf tl0l;fi©asB <«alBt
i9xf*c r:rf^ oj ,3foo*8 auld goiinsoiioo eS^naffl©*B4-8
O^S ffidiivi mo'ii ij^a aiiort^xQ llitxtlBJCf arf* ;r.siE3' ^^tmbB xaxlT .noarreg
lerfirrun; . .caXqjnoo &iii ni b&'gellB ae :is>ot& "10 aeiBiIe
■?'■ 1 fie^BSJcrs 019W Y©d* taxlj JxwiB
xootfs lo saoqaxii o;i^ lj6CiOB1^J■uoo -xo iloo:)':^ bsxiwo y^^i^ ^^s-' i^ou ofi
.d-nxBlqjHoo erfjt ci b98»IIb bb
tnjtot ajterfj- fielil ^fiio^T?. .W rf*ia>r Ijob fixiBrttfsillH .1, nel-D
^ucf (jtBEBoCBs 'BTrfefeliH ^i^BdA difijoe Tfoxi;)' rioi4w ni i:»wafl3
•oJ-qms «B 8i jiflsi'B. tadt iegsIlB
xiox-xiiT:c'lriJ: li , «• -rtJ yyadrt-; x«i'' • ' aelari'-J lo s^nagB
ffleoal saiBs . aol&atoqioO anlwe-xa aqgix) :.uiXDias©i LBii Yefl* xtoiaw
lli^^iialq a/li- i-Bxl* aiiJMbii iqwe . .xnogaoC; :& xtaiBil^
aaoi.t^i.6raoo b&d baa MibiI riJi- eoillo B'xaaqmo'o ^ asXatfa JietieiT
.2foo*a aggiC e/lcT lo e [b8 eild" sxtiJbrtBssi a^aosB YiwcfnioO xtsXsxiq ri*lw
-C-
Each of these defendants denies making any false or fraud\ilent
representations to the plaintiff to induce him to buy the stock
and each denies any knowledge of such false and fraudulent
representations «
The case was referred to the Master in Chaanery to take
the proofs and report both his findings of the facts and con-
clusions of law. The master heard the evidence and filed his
report in vfhich he foruid that no false and fraudulent representa-
tions had been made by the defendants to the plaintiffs and that
the bill should be dismissed for want of equity. The plaintiff,
Radley filed his objections to the Master* s report, which was
overruled. The court approved the Master* s report and dismissed
the complaint for want of equity.
Paragraph twenty- two eaid tvTenty- three of the Master's report
is as follows: 22. "That the evidence in this case fails to
show that the defendants, GLENIT J. HILDSBRAKD AND iCEITH W. FRAMB,
made any representations in regard to said G-IPPS stock that ^^'ere
untrue cr were relied upon by the plaintiff in trading for said
stock; that the evidence does bcs disclose the plaintiff, in
trading fo4* said GIPPS stock, relied upon the conversations he had
in the office of said PHALEU & CO., INC., with the said Phalen,
Cochran and Burley, in the month of August 1933, together with
certain investigations he loersonally made with respect to the
value of said stock; that the representations made to the p]a intiff
in the office of said Phalen & Co., Inc., as aforesaid, were largely
based upon the opinions of the parties making such statements as
to events that would likely happen in the future; that all the state-
ments made to the plaintiff in Chicago, as above mentioned, as to
existing facts were true; that the plaintiff has failed to establish
by the evidence that any of the defendants herein knowingly made
-4-
taBSssbvBit bflfi ealB^ dox/a lo ssSelwon^I Y-ft« aalatsb iioss fiafl
. aaoi;^ ataes&iqai
-no3 fcfls g&ob'x. ori? lo esni.&nil eirrf dtod #ioqe^ Sub £^00*15 «*^>^
axil 56l2t &rrs sonsbiTs effd" o^ijsri isd-SBiH aiiT .wbI lo eitolai/Io
-sJcsaeige^ d'iieli/b0si'> Dhb ©sIbI on tadt bnsjol orf rioiriw ni d'aogei
JeriJ bna e^^i*nia£g edf o& s^aBbnoteb ed^ xd ebem jaescf bad snolt
,lcTtxJaxsIcf erfT .Y^lupe lo Jnew lot beastm^iLb scf blx/of? d;}-
8flw rfoJrriw ,#iofj3i s*i9^aB]vI sild- oJ aaoitoal^o aid 6«Iirt xs-j'^^bH
f>9Baiai2l& bns. tioqei a 't:9j-3Bv' ©dcf bsvoigqs d-i/joo 9rfT ..ftalxrmc&vo
tioqs'z e'T^d-es;. od^ 'io ©sidcf-Y^newt ftns ow;f-Y*fr9w;t rfas'sssie^I
oo alxst ©ass axxW' iix 9onsi>xv . :'3WoIIo-
tcLflviAfl^ . ?S.a.IIH ."li HUaU'-O teJHBJbflSteo sil* Jed? woda
3fi3 iiood-a B^I'ilD i)i:.aa 0* biB^en ex S£tci*s;^fl:©s0^are*t Y'-ob efism
oias, lot saxftflTt ni fixJnljBlff sd* y^^ noqxr fieiisi aiew to stsi^au
at ^JtltatBLq adt «8oIo8Jt5 mn eeofi sonefeive 9-ri-* j^Ioo^e
fcflrf ed aaoiJaaisTnoo add- nogxr BgiIqi ,rfoot; ot snJtIjBid-
,xielBd'": f)XjS3 eiid- dJiw ,.0T1I ,.00 cii TKfcIAfiH JbJtjsja to soilto ed* ni
:{?-r/; To:I3ar^o,t ,SC;?.r *80;y/A ':^o da-floin: sd* fii ,X6li«S 6n« jHBidooO
8d* o* toBqzei xl^iw sbsw YJ''-f*?«OBi9o- ad 8xroi*ji3si*Q9Viii uIb&iqo
ttitai «£q adJ o* ebm zaottsitast-.^iqei ed* *Bd* ;:rfso*a 5isa lo oi,'Ij8T
Ylo8«»X »19W ,6xfiseT ,. .. .s aaled^ feiise lo »oitlo «rf* nt
aa 6*/T9flw*fl;re dona jinxMjBm s'^i^i^.q ed* to sxiolciqo sd* aoqu Seefld
-e*eJ V. erfj xit tmsij jf.Ti;*t;t ed* ex nscrrfBd iC-te^IU fcXifow *©d* »*a6T» o*
o* 8P .-Mrroi.rrr.', .^vodu e: . • zlitars^lq dd* o* 9bm ata»m
dzilde&ae o* 6eltot aad YtiJiu.»iq ed* *.Bd* ;»i;i* ©lew 8*9Bt grti^alie
dfiisin Y-C>fiiwc£r2f nieiad fHaabnoteb ad* to ^na *sd* eoneJ&xv© ed* y^
any false statements regarding said Gipps Brewing Corpcration or
the sale and issuance of said Gipps stock; that it dossn't appear
in the evidence the plaintiff has suffered any financial loss
as result of said exchange of stocks."
23. "That none of the defendants made any definite representa-
tions as to exactly when said brewery r^'ould. start operations, but
the plaintiff was given their opinions as to v?hcn it probably would
toe in full operation; that the plaintiff has failed to orove that
the various men he talked to in the office of Phalen & Co., Inc.,
in the month of August, 1933, had any official connection with said
Phelan & Co., Inc., that the pii intiff has failed to establish by the
evidence any misrepresentations which would constitute fraud as
legally defined; that a decree should be entered in this court dis-
missing the complaint for want of equity."
It will be observed from leading the Master's report that both
he and the trial court were of the opinion that the plaintiff had
failed to prove his case, namely; that the defendants made false and
fraudulent representations in regard to the sale of this stock,
which would justify the court in rescinding the contract. In the
case of Krankowski vs. Knapp, 268, 111., 183, at page 190. Our
Supreme Court in discussing what ia necessary to allege and prove
in a case to rescind a contract of sale used this language. " A
misrepresentation, to constitute fraud to authorize equity to
rescind a contract on account of such misrepresentation, must
contain the following elements: (1) Its form must be a statement
of fact; (2) it must be made for the purpose of influencing the
other party to act; (3) it must be untrue; (4) the party making the
statement must kno?/ or believe it to be \intrue; (5) the person to
v7hom it is made must believe and rely on tho statement; (6) the
-5-
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• : . .. ,qJK) 61c . ••• 3il*
■ W
51. _ ■«
6i- .loiooertnoc .f.B.!:o i il:o y«£> ^ijb^ : .Js.u'^'ja lo Afr.': • ni
-ait .tijj-oo eiif^ nl beisdrce scf r •:'irflJ!; b itsrfd' ;fi&^i•?e?^ •'jIlBgeJ
".-'id'i.. :l&lqmcc . ■.tas.tjD
rftoc' :^3ii;>■ tioqei e^rte^aaM erf^t grti&rs^ mo'ii Jbavi&scfo 6cf ITJ:
ix/tnielg ©fid' i edf nclas.' . ' c otcw ti'Tor^ Lf^..f'\ aib ei
bas 88 1 o;*- bQila']
9d& ■ . -iff;* r^rrifjJuiocsT dnhh
A ' ' ■ nj
"iiod^ffQ od J&0e«Xx . i it a^^st^sffnqpiB it
izuTi , ao i^ Bt a9riet<reie. tm. Aqjh io c/ntioooe .lo JOBitnoo jb bflloEe*;
ia^taB^Bis B o(f te.' -:i*I (I) rajfrrsmele ^rr.^wc tlr^t srff alalfnot
arid- anjtoffe' .jS-i ic
erf:f %*n/->:r : if?'j'rJnu .=>d .l-eom j-j (S) jtr- rag leri^c
:inBBt0:ta&8 edi no "^Xsi fecrs svellecf if t ai tl sioiit
statement must be material."
Not only must all of the above propositions of law be "oroven
but to justify a Court in rescinding a contract of sale executed
by two parties which are dealing at arras length, upon the ground
that it was procured by fraud, the. testimony must be of the
strongest and most cogent character and the case a clear one,
Walker vs. Hough 59, 111., 575, Condi t vs. Dady 56, 111.,
Appellate 545.
It is our conclusion that tho plaintiff did not establish
his case by such clear and convincing evidence, that falce and
fraudulent representations of existing facts induced him to buy
the stock in question, but that such re-oresentation either related to
some future liappening or were what is commonly called, "Puffing
or trade talk." We are unable to ascertain from this evidence
what financial loss the -olaintiff has sustained as a result of this
transaction.
We find no reversible error in the case and the decree of
the Circuit Court of Peoria County, dismissing the bill for r/ant
of eciuity, is hereby affirmed.
Affirmed.
flOTorrg ed ttbI to artoli-iaoqoiq svocfjB on* lo XIjb tafjffl -^Ifff
f)ixtf0i5 erf J aoqir jriJ-RflsI zm:i» *s sxiilseJb sib xCoxriw a®i#TBg ow;f Tjcf
,G£rc Tssi:) ■• easo sdt bus -isd-OBicBil' :^ ' "^.osfi 6iie taeafloiJe
.": .■ ■ .-,v ^tbaoO ,'3V:. . r.. ..,, _ ... le^CXisW
^i^o - ■ ■ '-■••- a*o.B- £i.x.Tai:x© lo anoi-J'jsii'.i .;:t,./3': ^iielirfeifeTCt
SfllT!: ■ ^ "IIbo Yincmflicc ": -^ ' ,--, ^alnacfqAri e^xf*i;l e/noe
90fitj;;j v\. -/x;ld' ffioil: nJ:Bi'i.B-:a._. r ,, '■ .j.cKrij.i STC ' ".-{la^ efect* TO
ai ' ^- " • - T ■ - -iLed-aue Bsri ^"iitrrlfiXa eric iioaBatl tstin
. cid-OBacBi*
STATE OF ILLINOIS,
SECOND DISTRICT J ' L JUSTLTS L. JOHNSOK'. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and tlie keeper of the Records and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof. I hereunto set mr hand and affix the seal of said
Appellate Court, at OttaA\-a. this day of
in the vear of our Lord one thousand nine
hundred and thirtv-
Clerl- of the AppcVaie Court
(73S15 — dM^3-32)
AT A TERM OF THE APPELLEE C/TJRT,
y
Begun and held at Ottav/a, <:n Tuesday, fhe fourth day of Fetruary,
in the year of our Lord one thousand nine hundred and thirty-
six, within and fcr the Second Ei strict of the State of Illinois:
Present — The Hon, BLAI^TE HUFFriALN, Presiding Justice.
?Ion. FRAl'TKLIM R. DOYE , Justice.
Hon. FRED G. Y/OLFS, Justice.
JUSTUS L. JOmiSON, Clerk.
RALPH H. lESPIE, Sheriff
28 5I.A. BOS'"
BE IT REMEIvIBERED, that afterwards, to-v/it: On
APR 13 1936 '^^^ opinion of the Court was filed in the
Clerk's office of said Court, in the 77ords and figures
following, to -wit;
GEN. NO. 9046.
AGENDA NO. 16.
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
FEBRUARY TERIvi, A.D. 1936.
JOHN KODAK and
MilRIS KODAK,
Plaintiffs-Appellees,
vs.
P. J. MARLAIRE,
Def emdant-Appellant ,
Appeal from County Coiirt
Kankakee County.
WOLFE, J.
The appellees, John Kodak and Marie Kodak, started a suit
in a Justice of Peace Court in Kankakee County, against P.J,
Mrlaire, The Justice tried the case and found the issues in
favor of the plaintiff in the sum of ;;^350.00. Judgment vra.s entered
for the same j.n favor of the plaintiff. Ilarlaire appealed the case
to the County Co\irt of Kankakee County. The case was tried before
a jury who rendered a verdict in favor of the plaintiffs in the sum
of |375.00. Judgment was entered "by the trial court for this amount,
and Marlaire brings the case to this court for review.
John Kodak and Marie Kodak, his wife, on i.lay 15, 1934, entered
into a written contract to purchase from ?, J. Iviiarlaire, a stock of
groceries in the City of Kankakee, Illinois. They also rented a
store building and residence tvcm Marlaire. They were to get
possession of the premises and the stock of jr^oods on June 1, 1934.
-1-
.81 .CM AQTECA
.b^oQ .OM .was
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ai aoifaai edi bauoi has easo erH- bQlii QoiiauJ* ed'S! ,81±bIi".'-
Jb9T9^)-n9 Ba-yr irnemgiJifl. ,00.03S| 1o iEwe ©il* ci "illdTfiJSlq 9x1;^ Ito iovbI
92B0 srlJ &9lBaqqB siisIifiM .IlicTiilBlq odi- lo iovbI iii emsa ari^J' io1
Qioled &9li;f SBV ©qbo srlT .x^njjoO 993{Br^B}i 'to ciii/oO y^^u^o^ ®J^«^ '^•^
tsue eri^J- ni rf*i*ii:tflislq eiW 'to loyct ni tf-oiMav e b^ietaQi oriw tttu;
jdru/ofiio eiilJ io1 fiv cd IsiiJ- exi;f yc' beiettis aBw d-neBisfjjjli ,00.SV5| Ic
.wsivei lol d"ijjoo airict- o* esao ©rid" agiiiTicf giiBltisM IJai
Jb8i9*iie ,:^5GI ,ai "^Bi." no ,9lJ:w aid ^-A&boB stiahl bae, ^ffiboH sulci,
B .')©*£iei oqIb y»^ .eioflllll ,9e:^3lx£B2 1o y- ' "' '^'''^' .--*-■--
w8^3 od- 919W ^eril' .stIbI^b^v. iodiI ei>aeblae\ ...^ ,:^,xiii>IJt«d e^-.-.
The sale price for the store was ^650,00, payable $200.00, in cash
and the balance to be paid Jnne 1, 1934, The §?.00.00 was paid. The
Kodak's had lived in Iron River, ivUchigan. They arrived in Kankakee
at the Aferlaire place in the afternoon of June 3,, 1934. Hodak
shipped his furniture by truck, which arrived at the ^farlaire place
about 2,00 o'clock in the afternoon. The furniture was unloaded
and placed in the garage. Marlaire had not moved out of the place.
According to Kodak's version of the case, T.^arlaire said he could not
move because a lady was living in his wife's property and they
could not move until this party would give him possession of the
other house. Hodak demanded possession and offered to give Marlaire
a check for |450,00, if he would immediately vacate the premises,
and turn the stock over to him, Marlaire refused to deliver
possession of the premises at that time.
Hodak went to see a lawyer about the agreement and the next day
went back and made a tender of the balance due on the contract, and
made a demand for possession of the property. Marlaire told him he
could not tell him just when he would be able to move out. Hodak
told him that the deal was off and demanded the return of the |g00.00.
Marlaire refused to return the $200,00.
Hodak testi"^ied that he came to Knakakee, for the purpose of
running a Studebaker Automobile Agency, and it was necessary for him
to get started as quickly as possible; that he wanted a little store
connected with a dwelling house, so that his father-in-law could be
not
employed; that as soon as he learned definitely that he could/get
possession of the "larlaire place, he set out to look for another
location; that he soon purchased another store connected with a
dwelling, in the city of Kankakee; that before he rented the place,
he hired a dray and moved his furniture from the Marlaire place to a build-
ing owned by a Mr. Sprimont, where he stored his goods; that on May
-2-
rfaso Hi «UU.OOS(i sldsxaq ,00.033^. asv/ sioja t>ri.j -loi ooiiq v xsa pdT
sdT .fiteq bbw 00.0055$ edT .^S6X ,1 sxii/T, bisq ed" oJ- soaBlBcT sxIJ- bOB
eD2lB2insA rxi &9ViiiB vsdT .nas-tj^isiW ,a©Tin. noil ixi i)9viX bsd a^iBfioH
eoslq 3i1bLis^ edt is be • , r-uj rio ofisr ,:^oi'i;f Y'^ eii/vlmi/l: alrl Seqgiria
bQbBoIiuf asw siir^lHiu'l srfT .noomsc^lja &di al 3{oolo'o 00«S *i;ocfB
,80Blq ©ffd" lo d-0o /38VO/:; ■<fon bsd eiteliBK .agBisg 9il# ni bsofllq firtB
ton Slifoo ed otea oTixBrreM ,oaBo eri* "io iiotsiev B»3iBf)©H oJ aaifi^EOOoA
Tferl* 5flB Y^isqoig a'sllw alrf ni gnivxl sbw yfial s asissoed orcm
sdi lo iiotaasaaoo" mid svig Jblirow Y^'^^sq airld' LtoOis (Wota. ion bSsioo
QitBli^ sviS ot bsielto baa noisasa 8»g 68J&irjejine5 ^&bcM .Qsuod led&o
(Ssaiinsiq edi s^bqby Y-^stfiiftsMnl f>Ji;ow ed ti ,00.06^v lol sfosrio £
levilBb oi baaulei sixbIxsM .itiiri ocT isvo ?IooJa exl^ xru/d' bns
.^xHic^ d-sifc)" cfs ae-siaierrq Siil 1o floiassaaoq
YBL j.v»ii t.ifd- 5ilB 0 ii;_n-; vi-^ISB 6 ':}■ iUOdB 19YWbI 5 98S Oif i> aB'" :dB6oH
i)flB jd"Ofli;t/ioo eriit no sub eoa&lad odi lo i&baei^ b sfesm bas ioBtf ta&^
ed mid bLo^ qiIbLibU ^x'^^ieqoiq siIo lo noiaasaaoq ^ol: bnamsb a efififc
>Ls5oH .d'ye jvom ot alcfB sd oXx/ow oil iisrfw *3i;t ^xd Ilsi" d"on fijjjoo
. '-' '•■^,+ *■-- "t'r--i srfd- bsbnaisef) 5nB Ito qbw Isefe eilJ d-firf* mid bLoi
.CO.OOS^ arid- flii/Jsi od" fisaulon eiifilisia
lo eaoqijjq grfo x-. ^ ,.-7^i:-:o.-iJ3a:-{ od" oxebo ed t Bdt betftta&i 3fBl>oH
atiri lol YTseaeoen bbv? Ji 6nB «YonesA slicfouiod-jjA le-iBd'aB:-'-' ~ ".aiam/i
9iod-£; eld-d-Jtl B 66;f£rBW srl iadi ^elcfieaoq aa Y-tafolifp aj^ bt., -..-.j a J-eg o^
H.f r ^rfoo wBl-nl-ierid-eTt aid d-Brid- cs .sauoff p,alil3rrb a rid-iw betoQuaoo
. -,,\&Iwoo 6ri d-Brf* Y-tsiM-tnef) figjiiB©! Qd Ba ftooa aB ifsif* ibexolqfsas
itdioaB *£<yi iool o» *u© *ea 3x1 .eoBlq 9*ixBl'r; -^-^ >o nolaeeaaoq
B tfd-iw bet'jeancu siote Teif^'orrfl bf^esrioix/q noo.^ ,. ;"~;:d'BQ0l
,90B£q »At bQttt&i 9d &icni,<i tBdi iseafB^faeX lo -^io ^^ ' -^^ .^:iJ;Il9WJ&
-bllurf fl ot oofiXg errlBl^Bf ©il;^ fljDi*5: erottatvt aXd b^rom bae XBtb b bQ-ald 9d
15, lie rented a garage from i.lrs. Logan which she agreed to hold
for him until June 1; that because of the trouble with f.tr. Marlaire,
he did not get over to ^.Trs. Logan's until the evening of June 1;
that she had rented the garage that afternoon to another party;
that he was unable to get a suitable garage to carry on his bus-
iness until July S2, 1934; that in the meantime he had lost a sale
of a Studebaker Dictator car, and a commission of |199.40; that in
moving the furniture it was damaged. This suit was started to
recover from Marlaire the :;j200.00, paid on the contract and also
for the damage sustained by the Kodaks through the refusal of
Marlaire to carry out his part of the contract.
At the conclusion of the evidence for the plaintiff, the de-
fendant entered a motion for a directed verdict, and tendered an
instruction for the same, but the trial coxirt refused to give the
instruction. It is now seriously insisted by the appellant that
the trial court should have given the instruction, because the
evidence shows that the plaintiffs' demand *as for a greater
amount than |500,00, namely, ^547.00, which is greater than the
jurisdictional amount of the Justice of the Peace.
The summons issued by the Justice of the "-eace does not arniear
in either the abstract or the record. The transcript of the Justice
shows that the demand of the plaintiff in the Justice Court xvas
for $500.00, which was within the jurisdictional anount of the
Justice of Peace. The Justice of Peace foimd the issues in favor
of the plaintiff and assessed the damages at .|350.00. The Coxuity
Court, after the verdict of the jury, rendered judgment in favor
of the plaintiff in the sum of 5375.00. It is our oninion, that
the County Court had jurisdiction to try this case and properly
refused the defendant's instruction for a directed verdict.
-3-
dlojl ocf orciSJQ aria xloiriw xib^oJ. .3iM ino-cl ssbibS b bstaef. nd ,ei
jl 9mf"t lo s«-iC9V® arid- Itims a'nBSoJ .aiM o# lero d-©g d-oa fiifi sri
{•^iBq ledioaa o* noonistxB ^M* ssb^^s sdt be^a&i bsd srie ^Bdi
-3i;tf aid no Yi'3:fio o^ aj^iixeg alcfjB^lx/a b tsg od" ^Id&aiJ asn ed isdt
elfla B d-aol Jjsxf su' emi&aaem eri* rcj: fsfl* jfrSSI ,SG tc^J^"^ Il*xm aasni
nl ^edi jOI'. eels' lo noiaaiffiCKio b 5xib ,ibo lod-s^oiQ rreslBcfoftxitf^ a lo
c;r bo^ista asw i-iu3 sMT .&9SBXiiBf) obw *i ainitlni^l 9ri^ siiivciia
obXb Biifl *oBi*noo sd& ao bxaq ,00.00S| eri* eilBlrnU moTl -xsvcoai
lo iBeylei ericf risuoii-fct a^IsfioH arid- yri baalBtsiss 9-^,eimBb ©rid- lol
.d"OBi*noc > tiBq aid tuo X'i'siso oi aiisIiflM
-9f) orij jllid-GiBlg - 90U©:&lV9 Slid- Ic noiai/Ionoo -
HB Boiefined- fins .d-oidi. r.oi uoid-oui e J^eisd-no tflBtnal
edo evig od- figsulgi d-iL, .<>' J-wcf ^ontBC ncid" to'V ao id 001*8x1!
tB'it tasLleqqB erid- ^ri fisd-aiarxi ■^Isi/oiigj . jidoi/id-anl
9Xid- sauBood ,floid"sx;id'siii o.'lJ- rr97.i.B avsrl bl;;0iia dii/oo IbIi;^ arid
led-Bsig 8 lol as* 6jibih9J& 'allid-niBlq gil-J- d-arfd- aworia aOiiefilve
ad* narid- lod-fisig ai rioiri?? ,00.^^5|^. ,-s;l9? bh ,00.003| isBrid- dm/ojEB
.90B9^I ©rid- lo 9oid'3Jj-X- grid- io dm/ocis iBnolioibsiiui
iBm^QB don seoJb 90B9' ed* lo aoid-swL 9rid- Yri fieuaai anoiiJXEue ©riT
eoidai/T, erid- lo d'qiioane'Xd- sriT ,biooei Qdi 10 *OBid-adB erij leridia rjti
?;j-' d-'LT/c*:: 9oid-ai/T, grid ni llidniBlq 9fld- lo baaaiab &di tsdi aworia
sdi lo inuom iBnoid-oibaiiuG erid- niridi// bbv/ rioiriw ,00.002.1- 'xo'i
TOTBl nl aeuaai ©ifd biujol 9ob6 lo so id?;; . ooid-aiili
XfiW9Q ©riT .00.065* iB aesorriBJb grid" ijeaaeas, ::d-niBXc;
TOTBt ni d-.iejnst'
dad* ,£roJ:fligo -u/o . ,
YlieqoTg Sob aajso eirid x'^'^ od noid-oiijaiix/r . -^^fluoD ^..j
.*oi£)i9r JE>©d-o0iifi b 10I noid-ouid-gn jngleb srid Boai/lsi
-S-
The appellant argues that the verdict of the jury was against
the weight of the evidence and the plaintiff did not orove his case.
It is not disputed that the contract was entered into or that the
defendant Maria ire agreed to deliver possession of the store and
residence on June 1, 1934, It is not questioned but that the
plaintiffs in good faith moved from their home in 'achigan to
Kankakee and were ready, able and willing to carry out their part
of the contract and tendered to the defendant a check for the
balance of the purchase price and demanded possession of the store,
or that iMrlaire refused to give them possession and stated his
reasons therefor.
From a review of the evidence, it is our conclusion that the
plaintiffs did everything that was required of them by their
contract, but that the defendant refused to carry out his part of
the contract and the plaintiffs were therefore justified in
rescinding the contract and demanding the return of the ;5200.00,
which they had paid. The questions of fact v/ere* for the jury
to decide. They hoard the mtnesses and had the benefit of seeing
and observing them upon the stsKd and were in a much better
position to- weigh the evidence than a court of review. They found the
issues in favor of the plaintiff and V7e think the evidence fully
sustains their finding.
The appellant objects to the Court's instruction v/-hich is as
follows: "The jury are instructed that if one party jst. to the
contract is able and ready and offers to perform the agreement
on his part, but is prevented from performing it by the other
party, then such offer will be treated as excusing nonperformance
by the party offering and he may recover damages, if any, sus-
tained in consequence of not being allowed to perform on his part,"
•4-
.d8B© alri •vortn- ton .5i5 'ilttniBlc eii& fins aonsSivo srfJ --©w »rf*
©i!* ^fsrfd- ic otni fcsi-^d-no aBw ;fo.5i*no? erf* JbcI* fee^ircralb ^on'ai *'t
J&ns 910^8 eri* lo nolaasesog Tevllsft o;t Bearrs^^ etlflliisSiy tnsfiffs'ieJb
Off* tBM tvd Jbanoij-aetrp :i-on si cM .t^SQS. , .C e-ftjjT, no eonefelRSi
o* nssidoiy al emod lisAi saoit be^rom tit set bo&^ at BViltai.Blq
&rBq liedt tsjo y^ibo of siilllJtiy 5nB side ^x^sei siew ftns 9«Q{fl3{£)B3
sil* lot jToerio s 3-035x161:06 ©rfd" o* beisfened" bos *OBT:d-noo »(1* to
,310^8 9x1* to floJbaeoaaocT befinxjinsf* hns soitq eaBrionrjg orft to ©onslstf
alxl fisd-fiJa bxis nolBesaeoq msAi^ avxs od- fisai/tsi eiijBlisM ^■Brf* io
,ioteior[;f exioeseT:
9xl« fBilt aoistsLonco ixrc .gorisfilve ©ifct- to y«>slT©r: b mo*f%.
1X9x1* Yd meAi to beiiypsn aBW terf* snirit-Yisva 516 attJt^flisXq
to *isc' alrf d-00 Yi'^fi^ o* bsatrtsi ^nsfensteb 9x1* *fixf* *x/cf ^.tcBitx'.oo
fli b9i:ti*axft, oiotsioxl* etsw 3tti*niBlq; exi* fine *oB-c*aoo exl*
,00.003^ eit to xrcird-sT exl* snibxTBtEOb bos *08ivtfjofi e/l* anifealoesi
X^\. ^di lot •siar,' *ost to afloJ:*89ifp sxIT .b.^Bc fcsff x^di rioirfw
8fli99R to cfltenecf sxl* barf briB aeaasxio J^t 9x1* huB^A x^dl- .afiiosb oi-
i9**ecf xlojjflt s at eiew brre b/is*.? orf* xtoctjx mexl* j^niTTsado bxis
3x1* bfluot Y^rfT .waivsi tc *'i0oo 'i naxi* 9orreblT'=^. off* ilsisw o* noJt*iaoq
■^rllx/t 90£t©B.cv9 Q'Ai 5fnJ:ri* ew bnB ttitnlBlq ©xl* to lovBt cjt esireel
.SC-t6fti*t ^loxl* anieteire
a« aJ: xfolifw itoWswitsirJ: a*#ii;oO oxl* o* 3*o»trfo taoiLeqas sriT
9ri* o* in Y*iJ8q sxj'o t.t *flxf* b9*ojfi*3iti: sib ^t^I ^^T" :awoIIot
Jxierrtseigr, etf* nrrotit' • tto bnjB y&bQI fif^B ©^f^JB ei d-OBa*xio©
Texl*o 9x1 j r'.alano'l'wq noit be*noveic; - *■ *i/C' ,*'iBq a ixl xio
eofTBimcot'iegxioxi sniax/oze as bo*fi9iD >tto xloire nsjff* ,Y*isq
-aix8 ^YJUs tl .aessOTBb 'igvooet y nlTotto ^^'^Cflcr sri* Ytf
".*iBq aid no nraotTag o* bewoIXa sniscf *on to eorcsifpeartoci ni fienlB*
There is eyidence in the record that the Kodak's were ready, able,
and offered to perform their part of the contract, but were prevent-
ed from doing so because Marlaire could not f^ive possession of the
premises as agreed. The instruction properly stated the law.
kVe find no reversible error in this case and the judgment of
the County Court of Kankakee County is hereby affirmed.
Affirmed.
jSIg'b jX^ibsi ©levy a'MsfioH 9di iBtli bioosi sdi ai eoa&bijre ai dieilT
'faersiiq sistv d-ifcf ftOBrs^aoo edS to i'XBq iledi^ snotiBq oi beiatlo bciB
sdt to xioiaaoeaog svig ioa bljioo enislisl; oBx/soad oe s^io5 xaotl ba
^o iaem^bul &dt baa dsso aldi sii iot'Is sXcfla-xevsi oa bait aV.
^betnitlA
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHXSOX. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Wliereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this ^ ^day of
in the year of our Lord one thousand nine
hundred and thirty-
Clerl- of fhe Appellate Court
(7.3S15 — 5M — 3-32) .,
9'<^6'^
AT A TERM OF THE APPELLATE COURT,
Begun and held at Ottawa, on Tuesday, the fifth day of M^^,a in'
the year of our Lord one thousand nine hundred and, thirty- six.
v;ithin and for the Second District of the, Sf^te ^l\ Illinois:
Present — The Hon. BLAI1\tE HUFFLIilN, Presiding Justice.
Hon. FRAMvLIII R. DOVE, Justice.
Hon. FRED G. tQLFE, Justice^ ^
JUSTUS L. JOHNSON, Cleric
RALPH H. DESPER, Sheriff.
'"^S5 l.A. 599
BE IT REMEMBERED, that afterwards, to-wit: On MAY ] 5 193g
the opinion of the Court was filed in the Clerk's Office of said.
Court, in the words and figures following, to-wit:
Gen. No. 9055
Agenda No. 33
IN THE APPELLATE C0T3RT OF ILLINOIS,
SECOND DISTRICT
FEBRUARY TERM, A.D. 1936.
Appeal from CJr cuit
Court, DuPage County.
James H. Hooper, )
Complainant, Appellant
vs.
Marie Ellemund and Edmund
Eelly,
Defendants, Appellees.
HUFFMAN - P. J.
Appellant prosecutes this appeal from the decree of
the circuit Court of DxiPage County dismissing his hill of
complaint filed in aid of execution. /Ippellsnt states that
this case has been tried three times, and that in each instance
his hill was dismissed for want of equity.
A discussion of the facts involved will serve no use-
ful purpose. The appellant assigns no errors relied upon for
a reversal. Under such circumstances there is nothing presented
to this court for review. It has long been the rule that a case
submitted to a court of review for final decision without an
assignment of errors, will be dismissed. Farmer's State Bank
of Belvidere v. Meyers, 282 111, App. 549.
The appeal is therefore dismissed.
Appeal dismissed.
52 .o" abaen^.
aSOe .oW .neC
OX^.'lX ■J-
ToisTBiQ craoosa
.85GI .a. /I. ,M?rST YHAUHSa^
.ytflXfoO ssB^cr ,d-ix;oO
,i9qooH .fi asfliBT.
.av
. . ... - llilM'ilUH
to e&ioeb ado Jioil iBsqq.. -,...- 3a*wo9eoiq diioIIsqqA
lo Ilicf airf s^lasimaib Yd'mjoO sssgi/a lo d^uoO iiuoilo Qdt
Jjsrfrf- 39d-s*a d-arilleqqii .noiJi/oexo 1o bi^ ni .&©irt talBlqsa.oo
p) rn. f'-.-T r -fop.« f ! ;f-;n'? baB ^ssmi^ Q'oidj fisiid" xrasa' asri asso aldd"
-esx; on sviss Ili-^ be^Lovn.! a*03l exfd" 1o noiaeaosii .
•roT: floqij Beilei zioiie on aagiasii cfrtfillaqqe sriT .eeoqTuuq li/l
fieJnoasiq gnirfj-cn e i eied:^ aBoaB&assjoiit) dotse lebnXJ .IflSTcevsi b
asBO 3 d-srid- aCi/i arid- aaed gnol sbiI d-I .irsrvei lol tiiroo 8j:ll;^ oi"
OB tuodti\'( aotslOQb iBait lot wsivei lo ^tiuoo a od" beit tmdua
>{n«a 83^0*8 e'i9iH*ijef5 .LeBBJticaif) otf Illvr .ato-rt© "io ^naiangleeB
,3-^5 .qql^ .111 S8S ,ei9YeM .v ©isfclylee lo
.fceeeiffleiZ) IfleqgA
STATE OF ILLINOIS,
SECOND DISTRICT J"" I. JUSTCS L. JOHNSOX. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
certif j^ that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
in the year of our Lord one thousand nine
hundred and thirtv-
Clerl- of the Appellate Court
(70S15— oM— 3-32)
^ <^ <2^
AT A TERM OF THE APPELLATE COURT,
Begun and heLd at Ottawa, on Tuesday, the fiftl>' day dr May, in
the year of our Lord one thousand nine hundred ^ii'^d thirty-six,
v;ithin and for the Second District of the Sta-te of Illinois:
Present -- The Hon. BLAI1\tE HUEF^mT, Presiding Justice.
Hon. ERAMIxlIlI R. D0\^ , Justice.
Hon. FRED G. TOLFE, Justice.
JUSTUS L. JOHNSON, Clerk
RALPH H. DESPER, Sheriff.
^8 5i.A. 599^
BE IT REIVIEMBERED , that afterwards, to-wit: On I^.'^AY 1519
the opinion of the Court was filed in the Clerk's Office of said
Court, in the words and figures following, to-wit:
Gen« No. 9008
Agenda IIo. 23
IN THE
APPELLATE COURT OF II 'LINO IS
SECOND DETRICT
February Terra, A.D. 1936
Leader Ice Cream Company, a
Corporation,
Appellant
vs.
John Doy,
Appellee
Appeal from the Ctr cult
Court of Lake County,
DOVE, J.
On August 27, 1934 this suit was instituted in the Circuit
Court of Lake County. The first and second counts of te complaint
were in trover and alleged that the plaintiff on April 15, 1931 was
lawfully possessed of a Knight soda fountain, together with certain
described mechanical refrigeration equipment which it lost and averred
that the defendant came in possession thereof by finding and that he
converted the same to his own use. The third count alleged th t on
April 15, 1931 the plaintiff and the defendant entered into a condi-
tioiaal sales contract by the terms of which said soda fountain and
equipment were to remain the property of the plaintiff imtil the
full contract price of |1200.00 was paid. It was then alleged that
according to the contract the defendant agreed to purchase his ice
eream requirements from the plaintiff and if he failed so to do or
if the plaintiff should fear a removal, waste or diminution of the
property or if the defendant attempted to sell tfee property that then
the plaintiff should have the ri':^^ht to take immediate possess! on
thereof. It was then averred that the defendant refused to buy
his entire ice cream requirement of the plaintiff and that the
plaintiff, fearing the diminution, waste or removal of the isrope rty,
demanded a return thereof, which the defendant refused with the
malicious intent to defraud and cheat the plaintiff. The defendant
5S .c;! fldnosA
800€ .oia .a.ei)
Toiflraia :
•ITA
.Y*H0cD e^fiJ to if
see I .a. A .cust Y'ii^t-'"^*^®'^
j-.L-;- '. ' i.;j
.3V
,Ycrf '-"^■- '■
*l0oi£O sricf n.i: be^tuitifiai aBW d-ii/a airfJ ^Q£ sVS tei/strA nO
teiel<rfflroo e * lo ajmfoo Bnoods 5n . rhiifoO e^Lsa to ;J-'moO
BBir LF.Q1 ,31 IliQTA flo ItltxilBlq eni if^At ft-»s©IIfi Lflf; le-ffoivf ni 9^tm
©rf ^orid- f>H£ anjtfiflii: 'id tosiarit aoieeeasog ii.i sffteo tra&bnsJsb €>dt ^Btii
no * ilJ be:sifiIlB 3-m.-oo oiirW sxIT .sei; nwo aiif o* satsa sif^ betisvaoo
"ibnoo B o*ni fesisd-na inebas'iBb ssii bas ttt&ntnlq ed^ L^^QL ,51 LtrqA
ban aiB*nt;o r Qbo:. bine rloiriw "lo sfified" erfit y^ *OBt£<J noo a aljtje Xsaold-
erfd" I'l^frD; t^ltntBlq arid' 1o yJisgoTq sxicf nimwi oi sn&t,- taQmqhigs
tadi be^LlB aeri* bbw cM .bi/jq aem OO.OOSX^ to soi^q ifoflTCiJ-rroo ILut
sol Bill ©BBrioiirq o* be^T^s itiBbaeteb edi iOBitaoo eriif otf a«Jt£)iooofl
10 of) o;^ us bo.LXBl exf tl ftriB ttid-x;ir;Iq ari:!- /iioit GJxx9ioeiiifp®t aiBerto
add' to noi^uflijBJtfc lo 8;^afi1? ,lBVomei e iBet f).CiioffB tti*iii£lq arii- ti
netfi- *»d* "^tieqoiq eri* ritje oj ba^qmatfc^s tn3i)xs0l«J& s>sii 11 io 'z^teqotq
ao jBc«3eoq Qt&ibeiml o3(b* o* :<-rfsJt*c 9At ©rwf Mj/oxfa ttl*uJ:Blq sil*
XUd ot beaiTLBi tnnbaeteb eAt tad^i beiiev.o aedt aaw :!•■. .toeiericf
9di ts'i^ bUB tliini.elq edt to tneaetttrgeT rpssio ool siicf/re eiri
.XJfTsqoTrr od^ to iBvoffiot -ro ed-BBTT .noittrnliJixf) ori^r ^jjiiiBst ,tti;falfllq
9d^ it^iw beafftdT iaBbM^eb edi ri^iriw .tos-ieiltf fninTei o babaBmsb
taBbaetab ©rfT .tti;firlfllq »ri.t «BexIo J&hb feirBiteb o^ ia&^r.l ei/oloilaa
filed an answer denying that the plaintiff was the ovmer of the
property or entitled to possession of the same r;nd denying that he,
the defendant, ever converted the property to his oxth use. Upon
the trial of the issues, the following specialYnterrogatory was
submitted to the jury: "Did the defendant at the time and place
alleged in plaintiff's declaration convert and dispose of the goods
and chattels set forth in said declaration to his own use with the
malicious intention of cheating and defrauding the plaintiff of
said chattels as alleged in plaintiff's declaration?" The jury
returned a general verdict finding the defendant not guilty and
answered the special interrogator^' in the negative. The court
rendered judgment upon the verdict and the plaintiff below brings
the record to this court for review.
Apjjellant's statement, brief ind argument is not prepared in
accordance with our rules. Rule 9 of this court provides th::t the
brief of appellant shall contain "the errors relied upon for a
reversal." Cn page 5, at the concision of appellant's statement,
counsel says there is no point raised on the pleadings but nowhere
does there appear any statement of errors upon which appellant relies
for a reversal of the judgment appealed from and for this reason the
appeal will be dismissed. Farmers State Bank v. Lleyers, 282 111.
App. 549; Bender v. The Alton R. R. Co., 284 111. App. 419;
1 N. E. (£d) 108,
APPEAL DISMISSED.
Bflt to -ranwo arid" aaw tlJtJiilBlq; edt iTBrl^f sniYnaf) lawsfiB as BeXJtl
,9ri J-Bri* snl-^nefi bar: ames adi- lo jEoisaesaoq o* bQltliae 'xc Y*'i9Q:o:rq
noqU ,9au awe aid o* yi-na^^WRSf 6iit b&tieraoo levs ,c^^i^6^^^9fi erf*
aBW YioJasoirtsJ-nj/lsioaqa gniv.'GlXo'i s£[* ,aei/a3i srid- Ic lBJ:i;f srfd-
eoBlcr baa emii &dt tz taRbaeteb siirf- 510" :Y'3:iJ't ©rf* o^^ b@:3:tlmdv8
afioog 9ri^ "ic saoqaifi baa j-iavnoo noiJeTcIoaf) s'ttid-fl-tBlq al be^9lLB
sdi ditn eau rwo sirf o;f hoWb'sb.losI-' DiBa nJ: rfjfiol d"©a aleifjfBrio 6nB
to Tti^aisJiq oAi T^albuenleb bn& giii^sexlo T:o noid-nQd'nJ: airoloilain
ViiTj; ariT "?acI*BiBlo9b a'llxd-nxBlq ni JbsgsII;^ as ale&^ado btaa
JbflB Y*-^iJ^S *os tasbaeJeb Bit gnxJ&nxt d-oiJ&isv iBionag b bau'wisi
tiisco srfT .evJ:d"3S8fi arid- ai ■'^lod'BsarrrEatai IsJtoegs ©rfd^ be'ioyrea.B
aantitf wolsd Yt J!:*ii laXq sif ;Qmf}bul bQiobKoi
,milrs ;;c509t: arid'
ai baisqe-za ton ai d-nsmi/' ,ta&am$Bt^ «7taBXIe,To
srfd- *^ffcf a©f>l7oiq sJ-ix/o: . m ijj:© rftiw ©oii«6ioa«B
s lo'i aoQif Jseiioi eionis ©fW"" iti©d-,7os riads s-naXXeqgjB "ic laiacf
«-J-xr9inad-Bta e'tfriBXXeqqB lo no iax/ .01x00 ©dr/ , ggBq aC *' . XBaidvsTc
oiarf^-;oa ctrcf agniJoBoXq arid" ac bealBrs: jraxog oix «i f»i«iljr h^bs Xaaxxwoo
9/X91 i-flBXXeqffB rioixfw aoqu aiafne 5.» rf^xrawsd-sd-a Y^ta taeqqe a'u:ttii aaoJJ
arf* fl asBQi axcfd- not f>nB arool b»lB9qq:& ia^sei^hifl tnii lo XBaifeVS'i b no'i
• XXI SdS ,a'xax3M .v >ffi3a ©*Bd« yiactia''! .beaeifiraiJi 9cf Xliw Xsaqqe
jei:^ .q-qA .XXI fr8S ...oS ,H .K aci :-. exiT .v >iei>zi®S jQ^a ,qqA
,80X (J&g) ,a ,11 X
STATE OF ILLINOIS,
SECOND DISTRICT J I. JUSTUS L. JOHNSON". Clerk of the Appellate Court, iu and
for said Second District of the State of Illinois, and tlie keepcn- of the Records and Seal thereof, do hereby
certif)'^ that the foregoing is a true copy of the opinion (if the said Appellate Court in the above entitled cause.
of record in my office.
In Testimony Whereof. I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this day of
^___ . in the year of our Lord one thousand nine
hundred and thirtv-
Clerl- of the Appellate Court
(73815 — 5M — 3-32)
^ <i? 3 6
AT A TERM OF TliE APPELLATE COURT,
■ p
Begun and held at Ottawa, on Tuesday, the fifti, day of ilay, in
the year of our Lord one thousand nine hur^^ed; 'and thirty-six,
within and for the Second District of^#ne S^at.e of Illinois:
Present -- The Hon. BLAINE liUFFLIiiN, Presiding Justice.
Hon. ERANimi R. DOVE, Justice.
Hon. FRED G. I'DLFE, Justice.
JUSTUS L. JOHNSON, Clerk
RALPH H. DESPER, Sheriff.
28 5l,A. 5 99-
BE IT REIVIIMBERED , that afterwards, to-wit: On ^^Y 15
the opinion of the Court was filed in the Clerk's Office of sai-d
Court, in the words and figures following, to-wit:
Gen. No. 9036 Agenda No. 26
IN THE
APVF. Li^TE COURT OF ILi IKOIS
SECOND DISTRICT
Februai-y Term, A.D. 1936
Ruth A. Bailey, Administrator De
Bonis Non of the fJstate of Lindy
E. Bailey, deceased.
Harvey Kyle,
Appellee Appeal from the Circuit
Court of McHenry County.
Appellant.
DOVE, J.
On April 11, 1933 Lindy E, Bailey, a boy not quite five years of
age, was strv.ck and killed by an automobile being driven hy the
defendant on Route No. S3 at or near the northerly line of t a city
limits of Marengo, Less than a month thereafter this suit ^vas in-
stituted by his administrator to recover daraages for his alleged
wrongful death. The ease has been submitted to two juries, resulting
each time in a verdict for the defendant. Tlie first verdict was set
aside by the trial court and a second trial had. The verdict upon
the second "hearing was returned on Ji.xly 7, 1934, Thereafter plaintiff
filed her motion for a new trial, which was heard and sustained by
the court on September 30, 1935. Upon the petition of the defendant,
leave to appeal from this order was granted and the record is before
this court for review.
It appears from the evidence that appellant, the defendant
below, on the afternoon of April 11, 1933, was driving north in his
Chevrolet sedan, alon^ North State Street (which is a part of Route
23) in the City of J^iarengo going toward Harvard. Route No. 23 at
this place is a concrete slab eighteen feet wide, with a black center
line and dirt shoulders about six feet wide on each side of the slab
dS .oW sfinsg/L
aeoe .o«i .nsc
.■"u:nr:0 -^
9Q lotSTxi tX^lts^L .A iltna
,'JraaLlQqqA
, 8J.TJ>: ^SVTfiyH
J'B 5S .olf o^x/o3 .ATflTif^'^. hiB^o;}- r:ni'or: osnan
letfleo Mob. -.^.^
rffiXa «tU to nAle rio/
lot flioltoiT i3rf be'Jt
■Ida d'llf) fine enil
-2-
and at the outer edge of each shoulder Is a ditch. Eighth Street,
the center line of which is the northerly city limit of ilarengo is
a gravel street and does not cross Route No. 23, but intersects it
from the east at right angles. The parents of the deceased lived
on the southeast corner of Route No. 25 or Korth State Btreet and
Eighth Street, the front of their dwelling being about forty or
fifty feet east of the eastern side of the concrete slab. The west
side of their dwelling is about thirty feet south of the south side
of the south line of Eighth Street. On the west side of Route No,
S3 and almost opposite Eighth Street was an eighteen foot driveway
leading from Route No. 23 into the farm home of Paul Stouvenite.
This driveway was marked "by two cement posts, one at the soTxth side
and one at the north side, both posts being on the west boundary
line of .Route 23. Attached to the south post was a three barbed
wire fence running south for some distance, -^^hich enclosed a field
or pasture. Aboat two o'clock on the afternoon of April 11, 1933,
Lindy E. Bailey, aged four years and eleven months, was nlaying
with five year old Llary Stouvenite, a daughter of Paul Stouvenite,
in this enclosed field or pasture just across the street from the
Bailey home and on the west side of Route No. S3. Lindy was a strnng,
healthy boy of fair intelligence with good hearing and eyesight.
Appellant was driving his Chevrolet sedan anl was proceeding
northward on Route No. 2S, going toward I-arvard. His rife sat in the
front seat with him. The T^reather was clear, the sun was shining, the
pavement dry and the roadway level and straight. No one who witnessed
the accident testified, but the evidence tends to show that there was
no other automobile proceeding along Route No. 23 in either direction
or any traffic on North Eighth Street. After the accident, appellant's
car stopped and he, accompanied by his wife, carried lindy, who was
then unconscious, to the home of his parents and then drove him with
his mother and grandmother to a physician's office in Marengo and later
to a hospital at Belvidere, where he died a few hours later, never
having regained consciousness. Returning to Marengo from the hospital
at Belvidere after Lindy's death, appellee, Mrs. Bailey, Louise Can tlin,
-s-
,*98i*e sLidsX'd » dot lb b ai tebLjoAa rfose to e^be lo^fuo Biit iB baei
ax ogiieisf.1 to iXmil Y*io Y-iorfJioa qA& al rfo.i:il?? lo anil iBtaao edt
Jx acfoscieitnj: Jjjci ,5S .oH eJuoS aaoio ton aso5 ban t@eit& levrna b
Jbevll boaseosB en;f Ic atrreTflg srfT .aslvne tflgiic tjs tass oifd- noil
JbiiB tosrc?' 9tst8 li&ioVi 10 5S .oH ai-i/oH lo isnico taBeri^fuoa arit no
10 viiol txrodB gnlsd snlliewj) lioxiS- '• '' '"
tasw snT .deXa stsionoo oric^ lo 96.18 iTistciii-- e-ii ic jajio jSsI YJ'iii
ebis d*i/oa a;' " .1: ytilrft d-j/ocfB «i: snilJ-SWiJ •siedJ' lo ©file
,oK ©tyof! lo 3i)J:a ciosv Giit xxO .cl-99it3 flsfrigiif lo ©nil ilS-jjoa 9-dt lo
-\jBW6vi:i6 tool rrestdgie aa asw tesitB dtxfslS ©-tlaogcfo -J-aojoiia 6iiJB SS
.atinevuota lys*! lo ofliori sartBt ©d? otfai SS .oH &tisofi moil gaifeaal
sf)la dtvoz Qdt J.3 aao (Staoq tnaiaeo ocr^t "jd ii-esliBiti esw TfflwsTiir
\ii36ttuod taaw srit iio ^aied ataoq^ ASod ,sdbi:a rftioja srlt ts aso jjxxii
J&etfijsd &&■' OB «j1* ot £>exfos*tx-. .SS ot.uor lo eiill
61©il B beaolcflt:^ .ioiil,;- ^soiiista tf) smo .^jjoe giiJixim/i oocsl eiivr
,SSei ^IL r-
SCxVbIct r^?' t3xia-.:c:; ixo/txt -e - li^v ^i^—^U. ,;:i \lixiiJ
,9tiasvtf0t8 XifBT lo loJrijRirfifi c, ^oinnavtsotL -^a/s '.-:3Y ©"^-H dtiw
erft rofoil tfesita sdt S3oio£ tej^t »iytaj?> cacXone elxit al
,Siiaij8 fl 3i^w y5ni..[ ."^ . ■ -.tuoJi lo e£»ie ?!:-^a' oii ■ ':
.trisieeYe -ofis r::r':^-cyr'. ooogi .dtiw so :2 Izod
gxrlftoaooig asr ■ ■ " ,' 'oivarfO an: :^.:_r7xii. a^vj jjii;.!.;;
odt ni tB8 olJts? bIj-i .;j'i^-v'ra-i "tiBWot siii:ogi . >-itL-«rii3ion
3rft j^^iii- --'- — - .3£fj ,ib«J:o aaw is;?' . :., j-^oa titoil
tojtfoei.^^ —'■-*•'- - gflofja £:iXjJC90oiq ©Iidoiao*0j8 leriJo on
•.flsXIeqc.. ,.;:.... w : .. ,, oillBit xna 10
. ci/oiOBfiooxiif aeif^
•d;fjtw aXA &vCi . i.^ f-.^a-jp,
:-v... ,...,. .^ ..X..V . ,7;. ■: jai6 ©£{ yi:j^ ,ij'i96XvX©a J-x^ Jje«igeon b ot
•ti qaoii 9dt .-nl o^eim oi »nXni/jtofl .aaanwrojtoafloo oenlBsei sflxvBXl
r ^a ■*■ .
-3-
the grandmotharof Llndy, and Mrs. Kyle were riding in the rear seat
of appellant's car s.ind appellant was driving and Mrs. Cantlin testified
that }J!ts. Kyle, the wife of appellant, in speaking of the accident that
afternoon said in a medium tone of voice that she had said "Harvey,
look out, there is a child on the edge of the pavement." The infer-
ence from the record la that Mrs. Kyle in those words called the
attention of her husband to the presence of Lindy before the accident.
The record is silent v;hether appellent, heard his wife say this either
before the accident or when he was returning to Marengo froia Belvidere
and if Mrs. Kyle did say it and if appellant heard her, there i s no
evidence as to the position of appellant's car vrhen it was said or how
long it was before the accident. Mrs. Cantlin further testified that
she and her daughter (appellee) . a few minutes before Lindy was injured,
were looking out ef a west window of their home and saw Lindy and Mary
playing in the field on the west side of the fence "right across the
road opposite to where my daughter ajid I were standing." That she then
sat down in a rocking chair close to the window and cculd see out and
that the next thing she saw was appellant coming toward the house carry-
ing Lindy in his arms, preceded by the ;vife of appellant, who said:
"Have you a phone? We hit a boy, we hurt a boy." Appellee did not
testify. Willis Jobe testified that v;hile lindy was at the physician's
office in Jferengo, appellant told hiv that he had had an accident and
wished to report it to a state officer, that he had hit a child and
in response to en inquiry as to how it happened, appellant said he
didn*t see the child, that the witness then asked appellant if he
didn't have good brakes and appellant said "not very good" and in
response to the witness' question ?rtiether he was driving fast, appellant
said between thirty-five and forty miles per hour. Appellant denied
these conversations. Paul Stouvenite testified that L-bout two or
t;vo-fifteen o'clock in the afternoon of the day of the accident, he was
dragging a field seventy or eighty rods west of the road and saw an
autoraobile going north on Ro\ite No. 23. That he observed just the back
end of the car along the edge of the house as the front had gone by.
He did not Icnow the kind of a car it was and did not know an accident
;fB9a 1H91 srf;f ni mibti eiew Blx^i .atM bim ,YpRi^l totsiiosibaet?.. &d;^
belll*89* flilJiiflO .B-m 5nfl anivlife asw taBlXagqB bin- ibo - 'tssXI«go[fl lo
Yev^BlI" J&ljse B.iri ens cfBrf.t eolov to sflot jsj;if>©nt « rtJt 6iB8 nooaicod-lB
-rrelrri erfT " . cJ-wectsvBg orftt 1o agfe© oAS ao Rltxlo e s^. eidrist' ,*06 3£ooI
arii- 5sIIao eJ&iow eaoriJ nl aX^^ .RnJT t Diooan »di^ morrt esus
i©rf*jt9 airitt Yiie al.tw aiil fiijeerf JKsXXetqJB isii^ailw *£f»iia si f)*roo6«r eiiT
eTCsbivXeS (>ioil ogns'iBM o* ^aLaiss&et bb'W erf fi©.rfii» 10 -J-ffsBioaj} gilt piolecf
on ax »ierlrf' ti9[i b^Lneii taslleqaBli baa it y.^ bib elfji ♦atcM Ut baa
wod 10 SiBa asw jx nor" '^afil/e. itoi.*i:ac .t se. ©eftefelvs
Jflrf* fieitiJae^t isrid-iifl axXw.: ,:::DblooB an J a-ioisrf aBW * i ?j,noX
,f>©Tur;nl asir Y^alJ ©rtoleef aa^xrniiu wo i: c , (©©XX8f<yB) 1^iri:hSJ3^b n:»rf ftnB''"«iie
Qdt aaoiOB JTrfir-Xi" ©oriel: 9cf;t io si^i tJ: j^nlYAIq
fifljB txjo esa &XXJ-0 0 ij.n:,: ;7ci)iiiY; arid- orf- eacXo iXerio Siii5l30a a Hi. jatsrci) jfua
-v-irtso 98 00x1 edi b'tf'r «oo *asXX»0ni- esw w»e &iis ^^aicf^ tx&K oxlt tMt
tofl bib eelldqQi. " .\oii - Jx- ■ %i.>ifq ,3 uoy evsE"
e'njBioia--' " ta aav YfiaX J «XXri' ^.ai'lidae;!- qgoG alXXlW .YlWast
6ns J-ne/j.-T-- la f>j5rf Bsri eri >+ " .ogfji^i.gM fir ©oJtllo
^ff" "" ' :." ■ ' -cillo ■ tiofifot: ot berfaXw
*.l:i>'E TrrcXXoc; ' ,:;:.. >^nocrasi cj:
o.'i 11 d-naXXsCT<T-':! 6«5(a>' iicr. ;c..t-ii?.;;? oxiit J^iiiJ- ,I»Ix.io e,di- aae t*iil>il)
"ftoo?. YiS'^ ■ lies *aftXX(&*fqB -ifeijs «&3f.BTSd &003 BrrB.ii #'iilrl6
-■-■'' ' - atvlib p.xi-:.' oa -reiitariw nwlJ-aeirp 'aaaaitiw 9ri;f ct sanoqaei
betasb , n- ^,.-,rfrr;. .tuoA 1QC " y^io*^- brro ©vxl-.v-j-rci.ii3- neG^rcforf fiiBa
ao owd- tfi/ocf *o/(t SeX'ili-ir.j m : .eaoitcarceTfloo 9a«ri;f
--:^ e/f ,tnoM»o.o »/f# 'tc ---' ■ o acc.m:ocMj5 y^j rrj jf^oXo »c i{»«;rm-w;r
nfl VBB brm baoi eda (. .ht -'Oot: Y^^Sie <Kt Y*n9v»a bl&iJ. h sala3«*ifi
Xosrf erfjf r/a«t 5eircaarfc f>/I - - /la .oW s^uoH ao rfd-ion SiiloQ eltdomotUB
• Yrf arioa SbH iTno^ »il,t sr Rp.rforf ©rid- to ©»do erf* ^oXb tibo eri# I0 J&ns
-4-
liad happened until some time later. He testified he thought the
car he saw was /^oing thirty-five miles per houri Upon the former
trial he testified that he "judged this car to be going thirty or
thirty-five miles an hour. He was not going fast," Ivtrs, Stouvenite
testified tliat Lind3'" had been at her house playing in the morning
and she saw him again in the afternoon atout one o'clock. That
about a quarter after one she learned from her dau -hter that he had
gone home and didn't see him. agrjin that day. This witness also
testified that when Lindy crossed the highvray he was carefuiand w) uld
stop and look, and if there was a car coming he would wait until it
passed,
Henry A. Wulle, the City Marshall of Maren/jo, testified as to
the physical conditions at and near the intersection of J^orth Eighth
Street and Route Mo, S?, the presence there of cialverts and sign
posts on Route No, 33, the one on the east side showing the distance
to Harvard and the one on the west side giving the name and population
of Marengo. There was also a m_ai3. box, north of the driveway going
into the Stouvenite place and a stop sign on North Eighth Street,
¥x, Nulle went to this location between three and three-thirty o'clock
on the afternoon of the accident and informed Lindy' s father, T/ho was
then working in a field some eighty or nine by feet east of the barq
on their premises, of the accident. It was about this same tim.e that
appellant and Mrs, Bailey returned from tne physician's office and
appellant and his ?.dfe .an.d Er, and y'rs. Bailey all started for the
hospital at Belvidere, Mr. Fulls then examined the pavement and noticed
that a wheel track left the pavement on the a^st side about the center
of Eighth Street intersection and gradually drew "over toward the
shoulder line and about six^:y some ode' feet, I believe I saw a spot
of blood on the shoulder. If I remem.ber rightly there v,-as one or two
small spots, JuBt a little bit north of Eighth Street on the east side
of the pavement. The first blotches of blood I saw were probably two
or three feet east of the edge of the pavement about fifteen feet north
of Eighth Street. I noticed the tread of the tires of the automobile
on the shouMer leading up to where the automobile had gone. I
oi* tfi^odi erf bsni^esd- eH .i8*fil 9:^.x? araoe Ii»t-xiif fe«a©<0j«i J&arf
to YJf'ii^* J'iiios ©d ot 1B0 zldt tB^bsjl" axl tmit b&llii&e^ sfi. l£Li7
cfa/lT .j(oo.Cs*o eao #i;odB aooais&iJ.B oA:- ■•■,?,« eixd w»e file fi|xjj&
fiflri srf *jaii«t IP ■ i©rf flroTl oafrssoX a4s pii-o ■x-ti^'iB -c©*«ija«>! a c^r '
oaXa eaaac^. :. .!.■•- ••?sS fpsit Jtta^s^ mtii st " ' ■'' "-- l)aB aaoii er-c^^
d-i li^ruj d-ij8w bXtiovr eil prtlifioo i©o .q QBVf (viorit t.i: fji3Cf> ,j{ooX bjosi q;o*a
flSle feOB erf'^evXtro to s'^rsrid- eoaeas^q SxlcT. |5S .olf ©d'yoH >a.a i.se%i;,e
9StfiD*eii> s^J :%iilT»orfs ©file ;^2ss eri* jso sco silrf- ^SS .o-i s^juoR tto ed"aQq
aol^^ULcrejog fiot^ »insfl erfd- p^itrip- s6ia *a©w arfd- no ©no eilci- Me .6i^v%*k. o^
SnloR xismoriib orf* Ic .i*iGn xoc' I.tBai jsj oaie aaw «'s»;iT ,Q^riQzM %(?_
,#eeitf-a rii-iigia; ditcM no ii^ia go#a b baB »OBlq otXa&vaQjQ esLt o^al
....^■Xo»o y,tTlAf-3e'X['i Bob es'id* x^s©w:)•^tf noitkiool siiiJ od- j-aow »XXi/K .^
- ^rr orfvr .loiid-Bl: s^'^bniX ftsiinoxffi baB limbiooB siliJ: 1;o aooxiied-tje tdi no
piBtf fjiis- lo Jaes ;f»9l y;; sxi Xte io v^tf^gis ssiob biQ^i nl^iav aedi
di eaiit asms eJ-ff* ^irotfr. saw &1 .^naMooe erfrf lo ^ ssa iiiiOif iX3jt£;f no
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eoWon bas ^aemerBq Bdi fcoaJxr.axe .led;^ alX;;^ . . BlTleS *b lAtlq^GO.
isinoo •ft* twotfp e6la tspe ori* no *a8ffl9Vi.ci ^^ij 7ii.,i. 3£o3T:^ Xae^w 4 if^;^
•ae I aveii.:. ..toet 0^0 sraoa jfxie jtrocfja jiaa exiiX ^aoX^ci^i^
- .-■- V- r,:td/ij TXcTxIsii i^dmeme-- ' ^' .loblisoda edi ao j^oX4,,^
or :oi7 »te?r wae I fiooXd to ^adotold ^aill ad'x' .immeyaq ^di I9
-ItTci: *99l iioea-in ^i/ocfa ;fat»iir«Tr3q axf* to a^b9 edi lo ^ub© *8ea e«-ul* 10
-5-
examined the pavement for tire burns and didn't find any until
where the car came to a coraple te stop. The mark showed on the
shoulder not on the concrete and four or five feet south of that
was a pool of blood about the size of an ordinary sauce dish,"
This witness also teiJtified that he saw appellant's car and that
the glass in the left hand headlight was broken. Another witness
testified that he was v;ith Mr, Hulle when Nulle visited the scene
of ohe accident a second time, which was about five o'clock in
the evening of the day Lindy was killed and he testified that
he observed blood eeJ^ the east line of the pavement north of
Eighth Ltreet and the.t it ''seemed to be a sort of continuous
line of trickle there on the pavement,"
The foregoing is a fair resume of the testimony offered on
"behalf or the plaintiff below, ?or the defendant his sons testified
to the fact th. t a week or ten days prior to /ipril 11, 19 33 they put
new shoes and brake lining on appellant's car -ind that just before
and just after the aooident the brakes worked good, as stated,
appellant denied that he said to wilxis Jobe on the afternoon of
the accident that his brakes were not \^ery good and that at the time
of the accident he was dri^ng between thirty- five and forty miles
an hour and did not see appellee's intestate. There was other
evidence to one effect that from the Bailey property line to the
Stouvenite property line the width of Route No, 23 was sixty-five
feet and -that in fronx of the Bailey home on the east side of Route
No, 23 there are eleven trees, shown in the several photographs
which were in evidence and v/hich v/e have examined. Appellant also
offered in evidence the result of some tests made with four* chiM ren
between the ages of four and five and one-half years to the effect
that such a hhild could run twelve and one-half feet per second.
Appellant also offered in evidence the testimony of appellee before
the coroner and her testimony at the first trial and the testimony
of William E. Bailey, the father of Lindxy, who testified at the first
trial, but wiio has since died. The trial court sustained objections
to this offered evidence and none of it was permitted to be read to the
-3-
3rf.t flo fisworfa ?fnBBi edf .qotfa oJsIqmoo b ct Qflifio 113© 9At eaejdw
*erit to £frf-t;o2 i^esl 9t11: ^6 iwot bits etsior a
".deiJ^ eoii-BB Ti^nifiio riB 1:o asJts eriJ" ^-i/ode iaooXd lo Ic
aaeflJTvT isriJ-ojiA .ne^Ioirtf aew *ff3±I5Bdil iJiis
eaeoe Silv' beJlQlr ellsM OQitif qIL' . 1^ odil
ai sIooXo'o evlT: cfnocfB asw £[«ldw ,dffiiJ' Modae d i'a^dio-:
"io Liu "ion ;J-n8i«©v6q erfS- to ealL t&ati afij ^f«© SooXd' b&r'l®(^6o ©rf
no fieTsl'io xaomtisst and- lo samse-:: :.,"T'
59i:li!^8e;f actoa ali .
siol©cf dayr ;t"=fi"
srn-y^rxia sew S2 .©M ©d-uoH lo ilJfilw ex.; liT&qijiq atla^tae^B
eSuoK lo 8S±8 tBue edi ao otaoii x&IIbS. odd" io jiioil ci tnrf^l- ban ioet
e it rBiriOJoiIq lEievea ailJ ni owoita ,a9a^c!- i5.ovf s-jaitf^r f. .
oaXfi inBiieqqA .bealmst^ ^VBd ew dotd'w !xis eoa»i)i\ -qt? aoiriw
neTttirfo ir«5i rf^M^ 9i,a„ a*se: oox:i«6iva ni &ertallo
;foelle orrj ccf e-iso^ IXacf-enc L.i^ ovn ^. ...p^^ocf
.6noo9e if^ -■ - "' llari-en' .-.^
oiolsd ©ex- ■'diiomi^aoj cil;r Goaci.j;v^ ai b^%i..-w ohIb taBlioqqA
""""' "' "'■' ""^^ -'^**-^'^* *8^-tl «^rf^ *B YaoiJLt^ao^f i9ri teB tquoioo ed*
- ^': ... .- f)»ilW8«;f oiift ,x:KbaLl to redtat ©ri* .x^UttS .£ jgalXltW lo
Biicl^oetc/o ^rTX„*ai;a J-rx. 00 X^iid eifP .j&elfi eonXa aM oriw t^x/tf .Xairtir
«6.
Coimsel for appellant insist that It was error for the trial
court to Gxclude this proffered testimony and erred in refusing to
instruct the jury to find the defendant not guilty at the close of
all the evidence and erred in granting a new trial. Counsel for
appellee insists tht.t the rulings of the tilal court with reference
to the evldonco neve correct, tiiat the verdict of the jury binding
the defendant not guilty was manifestly ag;;.lnst the woi^ht of the
evidence, that certairknstructions were errcreous ond that the
doctrine of res ipsa loquitur applied and the burden was cast upon
defendant to ahow that he was not negligent, which he failed to do.
In the view we take of this record, it becomes unnecessary for
us to pass upon the rulings of the trial court with reference to the
proffered testimony of appellee or her deceased husband. There is
nothing in the record which advises this court of the reasons which
proDiptsd the trial court to set aside the verdict and award the
plaintiff a new trial snd this should have been done. Gavin v,
Eeter, 278 111. App. 30S. This court recognizes the discretion
vested in a trial couri; in ruling upon, sueli motions, Lynn Admr.j-etc.
V. He.ff, Crsn . ilo. 9044, opinion ther-ein this day filed, Gavin v,
Koter, Dupra, and is reluctant to substituts its judipuent for that
of tho trial judge. In this case, hoTrevsr , we believe the issues
of fact wore fairly submitted to the jiU'y under substantially proper
instructions and, inasmuch as two juries have found the issues the
saaaa way, we believo, in the absence of any errors in the court's
rulingaupon the adriission or rojection of evidence pr-'^ judicial to
appellee, that the last verdict which a^ain found the defendaiit not
guilty should be permitted to stand.
The first count of the amended declaration alleged that appellee's
intestate was proceeding across Route No. 23 frcia the yard or field of
the Sto\ivenite home and while on tho cement portion thereof the
defendant so carelessly drove and managed his autcmobile that it
struclr. appellee's intestate, :tenockGd him down and he was dragged for
a long distance and run over by said automobile. The second count
%) eaolo »x«' *jp xtltu^ ton ^OBbaotob adi ball -, v,-: .. -
eonsialei Jd-iiv -^ - < C Tarrqi©
noau Jaao s.'~iw rf'-j-ix't:
.of) oJ- f>6il .— -.- - . naj.i r>:;- ^j'bnotafi
Tol Yieaedosaru; sewoo ' .
xxclJei05i;r. .-;ijttjgooi- ....
toe
_■■■■■■ «
.0 bi&^c
■smm. Lne ©voiJb yJ'^^oIl.l
. ■ Off ftfi£. /ifrrft jiiri .S-yfro;:-: ,c:t-i^^._.
^m/oo 6aooee .
-7-
charged that appeJlant was approaching the north city limits of the
City of tiferengo at a greater speed than was reasonable and proper,
thtt fclie decedent had proceeded to cross the cemented portion of
Route Mo. 23 and had reached a part about tie center of the same
at 'Jhe tiiie of the collision. The defendant plead the general issue.
Upon the Issue thus laade, ib devolved duon the plaintli'f to prove by
a praponderanGo of the evidence th-it the defendant was guilty of the
negligence charged and th.at such negligence was the proximate cause
of the death of Lindy I], Bailey, Counsel for appellee recognised
this during the trial of the cause, aa it appears fro:a the recoi'd
the^t the trial court discussed with the attorneys the proposed in-
structions wliich he intended ^o give, and during t/)'.:> course of that
discussion one of appellee's counsel stated in substance to the court
that the q.uystion Vihcthur or not appellant was running his car at a
speed Ghat was reasuna'ijlt) , having regard to the surrouiiding conditions
and the i^iiilits of per sons using the public highway and whether under
all the couditions Lindy Ccuue onto the ptiveiuont or to the pavement
and wiisther appellant could have seen him v/ere ail ques'ti ons of fact
for the jury to paws upon. The portiou of the court's instrucU c^i
to which appellee complfvins is as follows: "The fact that the east
and west road entering iiito Route 23 at or near the pltico of accidait
liad a stop sign on it did not relieve Harvey Kyle froia looking for
vehicles, pedestrians or stock, if any, going along such east and west
road toward Route 25, and if you believe thiit he did in that regard
what a reasonably prudent person in the exercise of ordinary care wauld
do under like or &imilar circunisttmees , then he is not negligent in
so looking". Counsel's criticisim of this instruct on is that it assumes
thei'e were vehicles, pedestrians and stock going along Ncr th Eighth
Street toward Route Z'6 and that the effect of toe instruction was to
divert tne attention of tho jiiry and excusa the defendant from liability.
It is true that there is no evidence that at or about the tiu:e of the
accident there were any pedestrians, stock or vehicles going along
North Eighth Street toward Route 23, but the instruction does not tell
aoas
d-'ii.
yc t: I' ' u '-ul
10'!: nfji::co/ ^ '■ ■, r^}i --.vx.....
^ .£!«
Xio . 5hjb
-SOI
■ lidw
06
'! t>a
•n^rld" d ^<urt dine*; n i ■■I
uoyi tai,ww« ^i-uerid'a itfrigia xltfaoll
-8-
the jury there were, nor does it assume that there were. Fiirtlier-
more this case was tried under the provisions of the Civil /Practice
Act prior to tne Amendment of 1935 and the record discloses that
the instructions were fully discussed by the Court with counsel
after the evidence was concluded and before the instructions were
read to the jury, and no objection was made by counsel for appellee
to Che instructions which were finally given by the Court to the jury.
Counsel for appeili e are therefore in no position to insist at this
time that this instruction is erroneous, Ziorger v. \^rudential Ins.
Go., 282 111. ATop. 444; 5he People v. Pizzo, 362 111. 194.
Negligence has been defined as the omission to do something v^ich
a reasonable man, guided by those ordinary considerations which
ordinarily regulate human affairs, would do or the doing of someliiing
which a prudent and reasonab^B mf^n would not do. The jury were so
told by the court in the instructions in this case and were tola the
substance of the charge of negligence contained in the declaration
and were advisea timt Ihe burden of proving the defendant guilty of
such negligence rested upon the plaintiff. The jury, by their verdict,
found from the evidence that the defendant was not guilty of any
negligence. To finu tlB defendant either guilty or not guilty was,
under our system of jurisprudence, the fianction of the jury ana the
fact that the trial court had the case oeen submit tied to him for
determination would have found otherwise or the fact that had he been
acting as a jxiror instead of a judge, he would have refused his assent
to tte finding of not gHi4i guilty, it by no means follows that the
trial court shoxiJ-d have granted a new trial. If such was the Daw,
then to finding of the jury that did not meet tiie triallcourt's view
of the facts would ever be accepted and the jury would become an
utterly useless part of the trial. Schneesweisz v. 111. Cen. R. R.
Co., 196 111. App. 248.
It is apparent from the discussions of the trial court and
counsel with reference to the instructions that it was not contended
by counsel for appellee in the trial court that the doctrine of res
ipsa loquitur was applicable to the facts as they are disclosed by
-8-
~i3diii-± .519W e-iedi tadi esnuQe-B it aeob ion ,sisw e'ledi Yii/t e^d"
eoii'-oBi:'^ liviO edi lo ajdoi^aiYoic ariJ naljiu;- beiti saw ©aBo alri;*- ©loai
Laaw LoDri-osid ^:Iiir3: aiow exioiJ'oo-ii-eii.i: erij-
Slow anoiJoxrid^^ani jirlonoo sbw eojKs£i.cTo crf^f tojIb
emlloqqs tc"! Isaru/oe Y^f ©fifiJH afi— nrlt^osf, c"r on bns ^Y^x/; -yi
• Y^Ci/t erf* o* JTL'oO orfcr ^d usvi^ \ . jxiw BaoitomtBtis edi- oi
alrf^ *" :^^:J:^:^■: -t notttBC^ OK ni oio'iaisnci" oib s aCIeqq . .e.~i;oO
, cdS ;M^- . _ .- ^- ; . .
daidtK gnln^ta. -.imo edv as bentlob nssd 3.er{ oon&g J: igs'k .
ilo iriw aaoiiBtebj •.xjaair>io ©ao. . ■ ,iit^ elcfBrtoaaei b
-a o^o-p Y^cL'. .06 ;for .noar.Di .5ii£ rnof^xricr ;.' .rioj'riw
sifCi visw J&oje ©SBO e. .: ;roiJid'ei. . . .. s
uoxi-BialoeiJ edi- irl aQaiMaco oonsBifeen 'i::: 3T=ieilo ©rf* lo ©ortaJacfj/a
lo Y^XxjJB d-flaJbnelof) oni- gnivo-x. ^io baaivJbB eisw baa
YQfi to Y*^-fJ^a *ofl afiv; ,taBbae'x9b 9dt d-j-^rf- ,-■' .-Jna Myr. arlJ irsoil Jaru/ol
,8BW Y*X-ti/9 Jon 10 ■srtllus ti>dt xs faBbaa^., , oae^iS^ea
9At baa v^ut *tO to noifo.nul: oxi-t , Don8.6in:q8irojf, 'io iae;f«Y3 "n/o lebnsj
-£0"! nxrf e* 6©? jttfKcfx/a n^po r'Bso a.r^rf- fteri ^fawoo ifii-iJ Sitid" d-jsri* d-OBt
naerf -.n z;-; obI ©xio ::V3£{ ftlnow aoltBaiBn9iab
tnoar^y: >iri bBQiner sveil bLttov sri ,os5i;t .^ lo bae^oxii 't.<vi,-.,f 0 3b r^nLi^oR
^ ivollo'r p-aser^ on y^" *i- tX^lia-a i*di*<s ^' -y ,.._/:_ : .i. . ,.'
a-. <.B,oo«d blno^ Y-mt sifiT bnB be^qs, .- , _Ii;ow ed-oxsl ©ri;^ lo
• • • -alawesexuioti .leiij- edt lo a--'ic .-^p:, r-.r/.- v. r-r ,,.;•!•,/
f>ne i'jifoo iBli^ 9fij 10 ancjc88i;oBXf) edi aso-ri iaeiBqcie a.
fie*fl«rnoo ;ron axsw Ji ;tBiiJ arxoWoimciu ed;i oc^ aone^siei ri;Mw laem/oo
ee-i lo 8nI-rt;roof, 9ri;f ;^Bxi^ :f'nsoo Lf>dit ed;f xil esllegqfl toI learn; 00 y^
Ytf 5e,aoIoa26 bib x^^t ^o ajfofll exld ot eloVoxIqga aBW ru;;flxrpoI aaql
thj s record. There have been tvc trials of this case and in the
record v/e are rovlowin.g there are no errors of law prejudicial to
appellee vfith respect to the introduction of evidence. The jury
was fu].ly instruetef? as to the Ian ond no reverf?ible error appears
in conr.ection mth the Instructions. There is nothing to indicate
that the jwTj arrived et their vnrdiot tlircvigh ps scion, prejudice
or hy any .raeenp ether than a consideration of the laii? and the
evidence. We havR road thi? record vrith care. There is no direct
evic^encc as to jrist what occurred iT«]raediate]y before and at the tine
of this ur;fortuna-':.e accidert, but wg are clearly of the opinion
that the verdict of the .^ury is r-untained by the evidence, at ]e ast
it is rot so loanifeptly agf.inst the reif^t of the evidence as should
require the case to again be submitted to another jury. The order
setting aside the verdict of the ivrj and a■5^ardi.^^^ the plaintiff
a neiv trial Is r^^versed and this? cause is reraf-rd ed \,'ith direct! ens
to the trial co-u.rt to render lud:=7PGnt on tho verdict in favor of
the df=^fendpn.t enO against tlie plaintiff ir, bar of the action and for
the defendant pvid against the plaintiff as adniristrator, etc. for
costs of suit.
BSTHltlSEI) 'FT) HlSit^ITDED WITH EIRT^GTE OHS.
ent a.1 baa aasa aidt "io alatii oa^ ceecf eve A e'lailT .ftiooei b tAt
aiBeggs loiie sldiaiovs-r on fexto sbI 5>il* ot s.c &9d-oin* *^^ bbw
toaix& 0'
^83 eL i^ ,sonsJbxv9 ;
feli/orifi an sonejbiv© 6i
lO 10V
lot
nol&B'zobiaaoo n frsrf
?5-13!Ml yrOfi Ttf *rO
.:'-.ttf
,3i'( ffOTJIia
STATE OF ILLINOIS,
SECOND DISTRICT J " I, JUSTUS L. JOHNSON. Clerk of the Appellate Court, in and
for said Second District of the State of Illinois, and the keeper of the Eecords and Seal thereof, do hereby
cei-tify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled cause,
of record in my office.
In Testimony Whereof, I hereunto set my hand and affix the seal of said
Appellate Court, at Ottawa, this -day of
_in the year of our Lord one thousand nine
hundred and thirty- ^
Olerl- of the Appellate Court
(73815 — 5M — 3-32)
"^ o</ </
AT A TERM OF THE APPELLATE COURT,
Begun and heLd at Ottawa, on Tuesday, the,„;&i'ffh/day^of J.Tay , in
the year of our Lord one thousand nine hu]asr(|a and thirty-six,
within and for the Second District of tja'e ,gtate of Lliinois:
Present — The Hon. BLAINE HUFFI/IAN, Presiding Justice.
Hon. ERANiaill R. D0\^ , Justice.
Hon. FRED G. VDLFE, Justice.
JUSTUS L. JOHNSON, Clerk
RALPH H. DESPER, Sheriff.
285 I.A, 599
^
BE IT REMEMBERED, that afterwards, to-wit: On ^^ 15 1936
the opinion of the Court was filed in the Clerk's Office of said.
Court, in the words and figin^es following, to-wit:
Gen. No. 9044
Agenda IIo . 28 .
IN THE
APPELLATE COURT OF ILI.INOIS
SECOND DISTRICT
February Term, A.D. 1956.
William J. Limn, Administrator
of the Estate of Raymond J.
Lynn, deceased,
Plaintiff -Appellee
vs,
Bert Haff,
Defendant- Appellant
Appeal from Order Granting
Motion for New Trial,
Circuit Court of Kane
Coimty.
WOLFE- J.
William J. Lynn, as Administrator of the Estate of Raymond
J. Lynn, deceased, filed a suit in the Circuit Court of Kane County,
against Bert Haff, for damages sustained by the death of the plain-
tiff intestate, RajTuond J. Lynn. The declaration T?as filed Janvary
22, 1932, and charges that through the negligent operation of the
automobile, omied and driven "by the defendant, Bert Faff, the
plaintiff *s intestate was killed.
The original declaration consisted of 6 counts, but the second
and si:cth counts vrere \7ithdrawn from consideration of the jury during
the trial of the case. The first count che'.rges the defendant with
general carelessness in the negligent operation of his car, from
which a collision result ed between his car and the Haff car in which
the plaintiff intestate was injured and later died. The third count
charges that the defendant drove his car at a high and reckless rate
of speed to-v.lt — thirty-five miles an hour in violation of the
Statute. The foturth count charges the defendant with the ie gligent
violation of the statute in regard to the right-of-way. The fifth
count charges that the defendant was negligently driving at a high,
dangerous and excessive rate of speed contrary to the statute, etc..
To this declaration, the defendant interposed the plea of the general
issue. Trial was had before a jury who found the issues in favor of
on the verdict
the defendant. The trial court entered a judgment /in favor of
, SS . o/i jsJ&nesi.
h^OQ .oW .nov)
'SET MI
&IiMIITI '50 TSUOO STAJJSRqA
T0IHT3I(T CmCOSC:
c -
.u 6fioia\.8H io aJs^slE edt to
9© ll9qqA-''i1 1* fi J: c I'^
Jn si I-aqqA -* li alj ne 'i sQ
^'t'i Bll tfisa
fiiioirpjBfl to ea-3D-3Li 8x13" lo loTiJii+aiaijEt^A as ,110^^ ,"& in^i:.
•tTc jasgijclsafl an? rxZi^j :yiii;i ^iMiJ" eesis."" -.-.,
,bQLLiTi SBW ©d'BJs«^*n.i e 'IlitnijBlq
,-j:ijr?n o io Dao'-jisnoo nox;>-niBlo9J!> lanlai-to sifT
iroff) xiuft 9il':t lo nottBiabtssic^ rscit mr&ibdtl}^- i»iew etmsoo rftxia bus
it*±TT JnsBnslefi Qdt nsgrc^o ^nifoo *E:E.r ' .saao oifd- lo Isiii- ©xld"
ffloil eieo axrf lo aoi^s^sqo ^ne-^lL'^or. 3 ssaaeolaiso Ibtsgos
.foidw al Tflo llfli-J eri^ biis liso eid neewJati rj^j o.Lrs©'i noxailloo a rfoldw
QAt to aotiiilot-r as. -isjoii n.g aeltm OTtt-xttXM -- J2.\r'Gt boe
*ji98ll8an orf* rf^iw taRbaBtBh edi Bo:^'Lndo iaxsoo Atisjot »;iT .^.tjjj-^:;-
iitin 9ifr .^^^-^©-(frf^x- - -^ -t Meae-c ni e;fx;;fs!fa Qd& lo ncii-.slolv
,rf»W fi tB ^eabritb x^^tii.-t..,,^,, 3 aw d-rndfiflelajb &di jf-.ri* esg^tsdo rf-iiyoo
,.o;fe .Qtut&te, arf^f o;r YiBTC^noo ftesqa lo a^firi svlaesoxs bnc auottaaiiBJb
iBTons?^ 9;r:r "Vr, Tslq 9riJ fiaaoqietxii: cfnsMelaJJ erfJ ,no2d-B:cflIo©J& alriJ oT
lo lOT^': . . _..:/;jai QtH fi^nol odw ^1^1 o s^oled' b&d saw lexiT .awasi
to lb lev ed no
-2-
the defendant and dismissed the suit at plaintiff's costs. The
judgment was entered on J.lay 9, 1934.
On May 18, 1934, the plaintiff made a motion to Tacate the
judgment and for a new trial. The arguments on this motion were
heard on July 6, 1934. The court took t is motion under advisement
and on November 1, 1955, sustained the motion and granted a new
trial giving as his reason therefore the following: "The motion for
a new trial is granted. It appears that the defendant offered no
proof and the case stands on the testimony of the plaintiff, which
testimony shows a liability on the part of the defendant; and be-
cause the verdict is against the weight of the evidence,"
The accident happened in the City of Aurora at or near the
intersection of Prairie Street and V/oodlawn Avenue, which is a
closely built up residential section of said city. The appellant
insists that the trial court erred and abused his judicial discre-
tion in granting a je w trial. It is his contention that the evidence
was not sufficient to sustain a verdict for the plaintiff, even if
the plaintiff had been suecessfxiL in the trial court, and as the
jury had passed on the evidence and found in favor of the defendant,
he is entitled to the benefit of this verdict. The trial court gave
as his reasons for setting the verdict aside that there was some
evidence -of negligence on the part of the defendant and as the de-
fendant did not introduce any evidence to contradict the proof of the
plaintiff, there was siifficient evidence that the jury shoiild have
found in favor of the plaintiff. It would serve no useful pvirpose
for us to recite the evidence in this case. The matter of granting
a new trial is largely discretionary with the trial court. After
examining the whole record, it is our conclusion thac the trial court
did not abuse that discretion and did not err in granting a new trial.
The order of the Circuit Court of Kane County, in granting a new
trial is hereby affirmed.
Affirmed,
9rfT .a*8O0 e'I'iiJniBlq t- tiua edi bea&imalb bas tastaeteb srf-J-
.i'Sei ,Q xsM ao b9ietas sjsw iaesa^btsl
9TSW noi;tofii eidi no e^nexausiB ©rfT .Isli* wsn i? t:o1 boB taesi!:gbu\,
taemezivbB isfiiLv flol" -JocxJ- tiuoo srfT ..W5GI ,9 xlsfh ao brsod
wen B 5e^iiBis fifie noi^oia 9rf;t 5eai3*8i;a ,3561 ,1 locfiHovoIl no fiiiB
lot floirf-ojH QxlT" :sxiiwoIIol 3ri;f ©lOxsied^- noaBdi bM ae saivxs iBlii
on beielto iasbn&tBb edf tsrirf siseqqB *I .5^^ 'sn a
-ed has liaBbuBteb ad\f Ic ^iBq edi nc t^i-^-ti^ail b aworia •^fnoffilitaso
".©oflsBivg ofW" lo Jrigiav/ arfrf- cra/ilBgp; ei toibiev ■idi e&UBO
9di laea io &c s^ioiifA to -^10 edt at beneqqad taeblooB srfT
B ajt iloiiivr , si/nevA awbIBo iiiisyt^ lo :ioi;>'o©ei6*ni
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.£i©an:ntA
STATE OF ILLINOIS,
Vss.
SECOND DISTRICT J I. JUSTUS L. JOHNSON. Clerk of the Appellate Coui-t. in and
for said Second District of the State of Illinois, and tlie keeper of the Eecords and Seal thereof, do hereby
certify that the foregoing is a true copy of the opinion of the said Appellate Court in the above entitled canse.
of record in my office.
In Testimony Whereof, I hereunto set ray liand and affix the seal of said
Appellate Court, at Ottawa, this day of
/ in the year of our Lord one thousand nine
' hundred and thirtv-
Clerl- of the Appellate Court
(73S15— 5M— 3-32) ...
OL'^-C.-^XijC- <-^^
CM.
i^A- v--<—
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/
Published in Abstract
George Fisher, as Administrator of the Estate
Blanch Hopson Fisher, Deceased, ^ntiflf
Appellant, v. Russell Wittier.
Defendant-Appelleej/
Appeal from Circuit Court of Adams County
Vacation after October Term, A. D. 1935.
Gen. No. 8936
Agenda No. 19
Per Curiam :
George E. Fisher, administrator of the estate of
Blanch Hopson Fisher, deceased, brought suit against
Russell Wittier, in the Circuit Court of Adams County,
to recover damages resulting from the death of said
Blanch Hopson Fisher, alleged to have been caused by
the negligence of said Russell Wittier.
The cause was submitted to a jury who by their ver-
dict found the defendant not guilty. After overruling
a motion for a new trial and a motion in arrest of judg-
ment, the following judgment was entered :
* ' And now comes the defendant by his attorneys and
prays judgment on the verdict of the jury herein. It
is therefore considered and adjudged by the court that
the defendant have and recover of and from the plain-
tiff his costs and charges in this behalf expended and
have execution therefor. ' '
This is not a final judgment and does not dispose of
the case on its merits. A final judgment is one which
fully decides and finally disposes of the rights of the
parties. Smith v. Bunge, 358 111. 229. Puterbaugh
Common Law PI. & Pr. Sec. 1096. Town of Magnolia
V. Kays, 200 App. 122.
This Court can only entertain an appeal from a final
judgment entered in the cause, except intei'locutory
orders concerning injunctions and receivers. Section
77, Civil Practice Act, 111. State Bar Stats. 1935, Chap.
110, Par. 205.
The record filed is certified by the Circuit Clerk as
a full, true and complete transcript of the record and
files in said cause. No appeal being authorized by the
Provisions of the Civil Practice Act, except from a
final judgment, and no final judgment having been en-
tered in said cause, the Appellate Court of the Third
District is without jurisdiction to hear and determine
>Jio^
A
i
I.A. 60 0
Page 2 Gen. No. 8936
the matters involved in said cause or to enter any or-
der other than one dismissing the appeal form want of
jurisdiction. It is therefore ordered that said appeal
be dismissed for want of jurisdiction at the costs of
appellant.
Affirmed.
(Two pages in original opinion.)
.U (8586fi;
.Xo^
Published in Abstract
George Fisher, as Administrator of the Estate of
Blanch Hopson Fisher, Deceased, Plaintiff-
Appellant, V. Russell Wittier.
Defendant-Appellee.
Appeal from Circuit Court of Adams County.
January Term, A. D. 1936.
Gen. No. 8936 Agenda No. 19
uniy.
285 I.A. 600
tif\
Per Curiam :
And now comes on for consideration the Petition for
a Rehearing of said cause filed by Appellant herein
and his motion for an order vacating the order of dis-
missal entered in said cause on November 16, 1935,
and to reinstate said cause, and permit Appellant to
suggest a diminution of the record and to file as of
date July 2, 1935, the date of the filing of the original
transcript of the record in said cause, an amended and
supplemental transcript of record of the proceedings
in said cause had in the Circuit Court of Adams Coun-
ty, with an abstract thereof, and also including an or-
der of said court amending its judgment entered on
January 21, 1935, nunc pro tunc as of said date.
And it appearing that the jury returned a verdict of
not guilty in favor of the defendant in said cause and
that the court entered judgment thereon in bar of said
action and that owing to a misprison of the clerk of
said court in writing up the record in said cause no
final judgment was entered.
It further appearing that an appeal was duly per-
fected in said cause by appellant from said judgment
and that a transcript of the record duly certified under
the hand of the clerk and the seal of said court was
filed in this Court and although an order of dismissal
of said appeal was entered in said cause on November
16, 1935, the court has jurisdiction of said cause, and
it further appearing that the circuit court of Adams
County, upon due notice to appellee, amended said
judgment to conform with the judgment of said court
entered on January 21, 1935.
And in furtherance of justice and in order to give
appellant an opportunity to have said cause reviewed
by an appellate tribunal the court finds that the prayer
of said petition for rehearing and said motion should
Page 2 Gen No. 8936
be granted. Gage v. Schmidt, et al., 104 111. 106; Su-
preme Lodge Knights of Honor v. Dalherg, 138 HI.
508; Anderson v. Karstens, 297 111. 76; Cosgrove v.
Highway Commissioners of the Town of Rockville, 281
111.. App. 406.
It is therefore ordered that the petition for rehear-
ing be granted and that the order of dismissal of said
appeal entered herein on November 16, 1935, is there-
fore vacated and set aside and said cause reinstated
and appellant is granted leave to file instanter, nunc
pro tunc, as of date July 2, 1935, the date of the filing
of the original transcript of record, an amended and
supplemental transcript of the proceedings in said
cause in the circuit court of Adams County had on
November 23, 1935, duly certified by the clerk of said
court, including the order entered by said court on that
day amending its judgment entered on January 21,
1935, nunc pro tunc, as of said date, and the said judg-
ment as amended and an abstract of said amended and
supplemental transcript of record, and that this cause
be taken for decision upon its merits in accordance
with the order of submission entered at the October
Term, 1935, of this Court.
(Two pages in original opinion.)
14 (6S86S)
"^
\bstract
^ 4
Published in Abstract
Mary Coultis, Appellee, v. Illinois Terminal Gompanjy
a Corporation, Appellant. /
Appeal from the Circuit Court of DeWitt County.
January Term, A. D. 1936. /C- ^
Gen. No. 8938 Agenda No. 1
Me. Justice Davis delivered the opinion, of the
Court.
This is an appeal from a judgment of the circuit
court of DeWitt county for $3000.00, entered on March
8, 1935, in favor of Mary Coultis, appellee, and against
the Illinois Terminal Company, a corporation, appel-
lant. The verdict of the jury was for $4500.00, but on
the hearing of the motion for a new trial the court re-
quired the plaintifif to remit the sum of $1500.00 on
condition that a new trial be not granted.
The case was tried upon the first and second
amended counts of the declaration, to which a plea
of the general issue was interposed after a demurrer
had been overruled to said counts. A demurrer was
also filed to the third amended count of the declara-
tion, which was sustained by the court.
The first amended count alleged that the defendant
owned and operated an electric railroad, extending
from Decatur, Illinois, to and through the city of
Bloomington, for the carrying of passengers for re-
ward ; that the plaintiff became a passenger for reward
at Clinton to be carried to Bloomington, Illinois, upon
one of the cars of the defendant; that it became the
duty of the defendant to furnish safe passage and pro-
vide safe means of egress from the car upon her ar-
rival at Bloomington and to carefully assist the plain-
tiff, by the agents and sei-vants of defendant, in alight-
ing from said car and to carefully furnish to the plain-
tiff the necessary steps and other appliances and
means of egress.
Plaintiff avers that, wholly regardless of its duty,
it did not furnish safe passage for her and did not pro-
vide a safe means of egress for her from said car upon
its arrival in the city of Bloomington and did not care-
fully furnish to plaintiff the necessary steps and means
of egress for her to alight from said car upon the street
in Bloomington; and avers that upon her arrival in
Page 2 Gen. No. 8938
Bloomington, while attempting to alight from said
car and while in the exercise of due care and caution
for her own safety, the conductor of said car, who was
the agent of defendant, carelessly and negligently took
hold of plaintiff's arm and so carelessly and negli-
gently directed and gniided the plaintiff that she
stepped upon the edge of a landing stool which was
carelessly and negligently placed there by the conduc-
tor, that it turned over and slipped from under the
foot of plaintiff, by means whereof the plaintiff fell
and was thereby thrown upon the pavement and upon
said landing stool with great force and was perma-
nently injured and her hip broken, and she was sick
and sore and prevented from transacting and attend-
ing to her business.
The second count alleges that it was the duty of de-
fendant to safely and carefully assist the plaintiff to
leave said car upon its arrival at Bloomington and
safely furnish a means of leaving said car and alight-
ing upon the street ; it further avers that upon arrival
at Blooming-ton she attempted to leave and alight
from said car, when the conductor, wholly regardless
of his duty and the duty of the defendant, negligently
and carelessly took the plaintiff by the arm and led
and guided her from said car so that, in attempting
to step from the stairway leading from the platform
of the car to the surface of the street, the plaintiff
was caused to so step upon the receiving platform or
step that the defendant had negligently placed there
that said step turned under her foot and caused her to
fall and she was injured.
Appellant filed a Notice of Appeal with proof of
service thereof upon the appellee on March 26, 1935,
which informed appellee that it appealed to the Ap-
pellate Court of the Third District of the State of Illi-
nois, from a judgment against it and in favor of ap-
pellee, Mary Gonitis, rendered in the circuit court of
DeWitt County, Illinois, on the 8th day of March, 1935,
for the sum of $3000.00 and costs of suit, and stated
that appellant desires that the judgment of the cir-
cuit court may be reversed or reversed and remanded
for a new trial.
Among the errors complained of for reversal of the
judgment is that the verdict of the jury is clearly
against the manifest weight of the evidence.
We have carefully read the record in this case. Mrs.
Coultis, appellee, testified that she was not the first
person to get off of the car when it arrived at Bloom-
ington. Some one was before her, and as this party
Page 3 Gen. No. 8938
stepped down the conductor took her right hand and
as she put her foot down she happened to glance at
the conductor and his head was turned the other way,
and his motion, in taking her hand and turning, made
her so she missed that step a little; that her foot
touched the step and the stool flopped over and she
fell.
Mr. McNeer, a witness called on behalf of appellee,
testified that he was present at the time of the acci-
dent, that some five or six persons got off the car
ahead of appellee, then she came down the steps. She
missed the bottom step, — what I mean is the foot-
board,— and fell. On cross-examination he testified
that she stepped on the bottom step and then on the
box and the box turned over. This is all of the evidence
on behalf of appellee as to the occurrence.
On behalf of appellant J. M. Euggles, the conductor,
testified that when the train stopped at Bloomington
he got off of the car and placed the loading box on the
pavement; that he remembered Mrs. Gonitis getting
off of the car, and as she came down the steps he
reached up and took her arm with his right hand and
her wrist with his left hand, and she came do\\Ti the
steps and put her foot squarely on the box, and that
he held onto her until she was firmly on the pavement,
and then turned to catch another, and as she stepped
off of the box I heard her scream, and turned around
and she was lying on her back.
In addition to the conductor there were at least four
other persons who lived at various adjoining towns
and who were present, awaiting the arrival of thetrain,
and were in the vicinity of the step from which appel-
lee alighted and who testified that appellee came down
the steps and stepped on the landing stool and off onto
the pavement, and did not fall until after she was on
the pavement and all of whom testified that the land-
ing stool remained upright and did not turn over, and
all of whom testified to the fact that the conductor as-
sisted appellee to alight.
Appellant also insists that plaintiff's counsel com-
mitted reversible error in his conduct and remarks,
during the course of the trial, which were not cured by
the rulings of the court.
Every person is entitled to a fair and impartial trial
on the law and evidence in the case, uninfluenced by
any improper conduct of the attorneys or any other
person connected with the trial.
Appellant calls our attention to some of the occur-
rences and, while the question is not properly saved
Page 4 Gen. No. 8938
in some instances, we feel that the conduct of counsel
as disclosed by the record should not go unnoticed.
Almost all of the witnesses of appellant testified
that one of the ankles of Mrs. Coultis was taped, and
that they saw the bandage or tape, which was contro-
verted by appellee. The evident purpose of this in-
quiry was to establish that Mrs. Coultis had a weak
ankle. Appellee's counsel in cross-examination of the
witness, Mrs. George Coby, referred to in the abstract
and argument of appellant as Mrs. George Coveny,
in regard to the tape on the ankle of Mrs. George
Coultis, asked the witness when she saw the tape, and
she replied, when Mrs. Coultis was coming down the
steps of the car and when they carried her to that
bench, and then she testified that there was no other
people on the bench at that time, when the attorney
for appellee said: "Eeal funny, isn't it!" In answer to
the question as to whether the witness saw the feet of
appellee at that time, the witness replied, that her head
was to the southwest so her feet were to the north-
east, when the attorney said: "You reason well."
And again, after questioning the witness as to whether
she watched the plaintiff and the conductor after Mrs.
Coultis fell, and to which the answer was she did, the
attorney said to the witness: "Your view took in
considerable territory ? ' '
Appellant also complained of the argument of L. O.
Williams, one of the counsel for appellee, who in his
argument to the jury said: "In my judgment the wit-
nesses who testified to that, referring to the bandage,
have written on their souls to-day the verdict of black
perjury, and no railroad company and no agent of
any railroad company is justified in going to the ex-
tent of building up a defense in order to save them-
selves a few dollars." The court overruled the ob-
jection to this statement of attorney of appellee.
The remarks of counsel to the witness on cross-ex-
'amination were all uncalled for and were evidently
made for the purpose of discrediting the Avitnesses in
the minds of the jury, and in a case where an elderly
lady is plaintiff and the defendant is a railroad corpo-
ration it is very apt to have some influence upon the
jury even though the court sustained an objection
thereto.
The effect of the argument quoted, which the court
permitted to stand, could only be very detrimental to
Page 5 Gen. No. 8938
the defendant. It is error for an attorney in the argu-
ment of a case to state to the jury what his personal
judgment is.
It is the province of the jury to determine from the
evidence the credibility of the witnesses, and an attor-
ney subjects himself to censure when he assumes to
tell the jury what his personal judgment is as to the
credibility of the witnesses. Neither had the attorney
the right to charge that the railroad company or its
agents built up a defense in order to save a few dollars.
Counsel in their arg-ument to the jury are allowed
the most liberal freedom of speech consistent with
fairness and justice, but they should not use extrava-
gant and intemperate language abusive of the parties.
They can call the attention of the jury to any fact
shown by the evidence and draw deductions therefrom,
but are not authorized to give to the jury their per-
sonal judgment on any question as was done in this
case. The jury must be left free to decide the case on
the law and the evidence uninfluenced by any personal
opinion of counsel.
Our attention is also called to the statement made
by appellee in her brief wherein it is charged that the
statement in the brief of appellant is so false, mislead-
ing and unfair as to make it necessary for appellee to
make an extended statement in her brief.
So far as we are able to ascertain from the state-
ment of appellee and the record in the case, appellant
did not make a false, misleading and unfair statement
of the facts in the case.
Appellee in her cross appeal insists that the court
erred in requiring her to enter a remittitur of $1500.00
from the verdict of the jury. The judgment from
which the cross appeal of appellee was taken was as
follows :
This cause comes on to be heard on the motion for a
new trial heretofore filed by the defendant. After
the argument of counsel and due deliberation of the
court it is ordered by the court that a remittitur for
the sum of $1500.00 be filed, and the defendant is given
until March 8, 1935, to enter said remittitur. It is
further ordered by the court that if the plaintiff fails
to enter such remittitur then a new trial will be
granted.
This is not a final judgment and no appeal will lie
therefrom. Sec. 77, Civil Practice Act.
It is also insisted by appellee that the court erred in
holding that the third amended count of the declara-
Page 6 Gen. No. 8938
tion does not state a good cause of action. When the
court sustained the demurrer to said count appellee
elected to abide by her demurrer, but the court did not
enter judgment thereon. This question is not pre-
sented for review.
Appellee further insists that many questions raised
by appellant are not properly before the court for the
reason that no Notice of Appeal was served from the
rulings or judgment of the court upon many questions.
Appellant filed a Notice of Appeal with proof of
service upon appellee informing appellee that it ap-
pealed to the Appellate Court of the Third District
from a judgment against it and in favor of appellee,
rendered in the circuit court of DeWitt County, Illi-
nois, on the 8th day of March, 1935, for the sum of
$3000.00 and costs of suit, and stating that appellant
desires that the judgment be reversed, or reversed and
remanded.
This was an appeal from that judgment and brings
up for review all of the questions properly raised in
the lower court and is in exact keeping with Rule 33 of
the Supreme Court.
It is true that mider this rule one can appeal from a
part only of the judgment, but if this is done the part
appealed from must be specified.
Appellee contends that, since the enactment of the
Civil Practice Act, assignment of errors is abolished
and is no longer necessary or proper. That in our
practice the Notice of Appeal takes the place of the
assignment of errors under the old practice act.
There is no merit in this contention. The Notice of
Appeal is the means by which an appeal is taken.
Sec. 74-76 (1), (2), and has no other purpose and does
not take the place of the assignment of errors under
the old practice act. While assignment of errors as
known under our former practice it is unknown un-
der the Civil Practice Act, yet, if one examines Rule
l.of this court, as amended, and Rule 36 of the
Supreme Court, as amended, he will find the follow-
ing language under subdivision (2) :
"No assignment of errors or cross-errors shall be
necessary, except the statement in the brief, at the con-
clusion of the statement of the case, of the errors relied
upon for reversal, as required in Rule 39." Rule 9,
as amended, of this court and Rule 39 of the Supreme
Court, as amended, provide:
"The concluding subdivision of the statement of
the case shall be a brief statement of the errors or
Page 6 Gen. No. 8938
cross-errors relied upon for a reversal or of the cross-
errors submitted by an appellee not prosecuting a
cross appeal." It is plain that assignment of errors
are necessary under the Civil Practice Act.
We are of opinion that the verdict of the jury is
clearly against the manifest weight of the evidence,
and the judgment is therefore reversed and the cause
remanded to the Circuit Court of De Witt County for
a new trial.
Reversed and Remanded.
(Eight pages in original opinion)
ft ;■'■ '
yfo^
Published in Abstract
Arthur Burton, PlamtiflF-Appellee, v.
Defendant-Appellant.
Appeal from County Court, Piatt County.
O «3
I A. 6 00
Gen. No. 8943
Agenda No. 7
Mb. Justice Davis delivered the opinion of the
Court.
This is an appeal by W. A. Doss, appellant, from a
judgment in a replevin suit tried in the county court of
Piatt county, Illinois, on appeal from a Justice Court,
over the right of possession of an automobile. The
officer serving the writ was unable to find the auto-
mobile and the defendant failed to deliver the same
to the officer. The jury by their verdict found the car
to be the property of the plaintiff, Arthur Burton, and
also found by their verdict that the car was of the
value of forty dollars, upon which verdict the court
entered a judgment after overruling a motion and
amended motion for a new trial containing more than
twenty reasons for the granting of the same.
It appears from the evidence that appellee, Arthur
Bufton, had purchased! a. Dodge truck, which was
financed by the Allied Finance Company at Urbana,
Illinois. There was still due on the truck the sum of
$177.00. The Finance Company had agreed to take
$140.00 for the paper and Doss paid the Finance Co.
the $140.00, and took an assignment of the conditional
sales contract held by the Finance Company and the
note.
W. A. Doss had a yellow Buick Eoadster automo-
bile. The Dodge truck was still owned by Burton and
was in his possession when he met Mr. Doss one day on
the Court House steps in Monticello and asked him
what he wanted for that old Buick. Doss replied he
would take the truck and give him the Buick and call
it square. He said he would call up Elbert, a brother
of W. A. Doss, and tell him to let Burton have the
Buick car, which was in the garage of Elbert, and for
Burton to tell his office girls to have the title fixed up.
Burton went to the garage of Elbert Doss and told
him about it, and Elbert replied that it was aU right.
Page 2 Gen. No. 8943
He had the car in his possession about two weeks,
when Mr. Doss sent two men after it and Mr. Doss
took it away from him. Doss then had both the truck
and the Buick car. Burton served a demand upon
Doss, but Doss refused to give up the Buick car. Doss
claiming that Burton expressly warranted the truck
except as to the drive shaft, and that he had to pay
out money for other necessary repairs to the tmck.
After taking the Buick car Doss foreclosed against
the truck by virtue of what he calls the title retaining
note, which had been assigned to him, at which sale he
purchased the truck for less than the amount due on
the note, $177.00, which he had previously purchased
from the Finance Company for $140.00.
Appellant assigns twenty-one reasons for a reversal
of the judgToent. His first contention is that the major
issue is one of law, and then contends that appellee,
before he delivered the truck to appellant, did not at-
tempt to do anything about any certificate of title and
insists that by virtue of clause 7, Section 256, Chapter
121, Smith-Hurd Statutes 1933, appellee was required
to obtain a certificate of title and in making a sale he
should assign the same to the purchaser with a war-
ranty of title on the certificate.
We are of opinion that there is no merit in this con-
tention as the record shows that Doss told one of his
office girls to fix this man up a title, and she replied,
we have to send it to Springfield before we can give
him a title, so she fixed it up and sent in to Springfield
to have it changed. Appellee also testified that he
went home and went over and got his assignment to
give him the title to the truck and they said it would
have to go to Springfield.
Complaint is also made of the instructions given to
the jury on behalf of appellee. The case was tried
prior to the amendment of Section 67 of the Civil Prac-
tice Act in July, 1935, and there is nothing in the rec-
ord that discloses that appellant made any suggestions
either orally or in writing before the argument of the
case as to the instructions complained of, and we are
without authority to review any of such instructions.
Appellant also complains that the court erred in
refusing to give his instructions, four and six. The
court did not err in refusing to give appellants offered
instruction number four.
Instruction number six complained of is not prop-
erly before the court for determination as no error is
assigned on account of the action of the court in refus-
ing to give the same.
Page 3 Gen. No. 8943
Instruction number six is as follows and was offered
by Mr. Doss, after the jury had been instructed by the
court.
"Did the plaintiff, Burton, at any time tender or
give to W. A. Doss any certificate of title showing
ownership of said Dodge Truck to be in the plaintiff.
Burton." "Answer yes or no."
Under the provisions of Section 65 of the Civil Prac-
tice Act, in any case in which a jury renders a general
verdict, they can be required to find specially upon any
material question of fact which shall be stated to them
in writing, and which questions of fact shall be sub-
mitted by the party requesting the same to the adverse
party before the commencement of the argument to
the jury.
We are of opinion that the court did not err in re-
fusing to submit this question to the jury. In the first
place the record fails to show it was submitted to the
adverse party before the commencement of the argu-
ments, and also under the record in this case this ques-
tion was not material, and it was not a question of fact
upon which appellant wished to have the jury find
specially.
Although appellant in one of the errors assigned by
him insisted that the verdict of the jury was contrary
to the weight of the evidence, yet he failed to present
any argument in support of such contention. How-
ever, we have considered the evidence and are of opin-
ion that the verdict is not contrary to the manifest
weight of the evidence.
The jury saw and heard the witnesses and the
parties to the cause when they were upon the witness
stand, and we do not feel disposed to reverse the cause
because of a lack of evidence. It is evident that the
jury did not believe the claim of appellant that ap-
pellee specially warranted the truck in all respects
with the exception of the drive shaft.
The judgment of the County court is affirmed.
Affirmed.
(Four pages in original opinion)
,d>0 ^
Published in Abstract
Frank P. Weindorf, Appellee, v. B. H. Keck,Xhej^;7
of the County of Logan and State of I|linoi3^^' /
Appellant. ^
Appeal from the Circuit Court of Logan County.
January Term, A. D. 1936. 2B 5 IeA»600
Gen. No, 8961 Agenda No. 10
Mr. Justice Davis delivered the opinion of the
Court.
This is a suit in replevin commenced by Frank P.
Weindorf, appellee, in the circuit court of Logan
county, to recover the possession of a so-called pin-
ball machine from appellant, B. H. Keck, sheriff of
said county, who had seized the same without warrant
or other process of law, but as claimed by appellant
by virtue of an Act of the Legislature entitled an Act
to prohibit the use of clock, tape, slot or other machines
or devices for gambling purposes, approved June 21,
1895.
Appellee made a demand upon the sheriff for the
property seized and upon a refusal by the sheritf to
surrender the same sued out a writ of replevin, claim-
ing the machine was not per se a gambling device.
Upon a trial of said cause by the court a judgment
was entered in favor of appellee and this appeal is
from that judgment.
We are without authority to review this case. There
is no brief statement of the errors relied upon for a
reversal of the judgment in the concluding subdivision
of the statement of the case of appellant in his brief.
Such statement of errors takes the place of the assign-
ment of errors relied upon prior to the enactment of
the Civil Practice Act.
Rule 9 of this court, identical with Rule 39 of the
Supreme Court as amended, provides in part in rela-
tion to the preparation of briefs, as follows:
"The concluding subdivision of the statement of the
case shall be a brief statement of the errors or cross
errors relied upon for a reversal, or of the cross errors
submitted by an appellee not prosecuting a cross
appeal. ' '
Page 2 Gen. No. 8961
This case comes to this court by appeal and is not
one of the actions excepted from the operation of the
Civil Practice Act with respect to review in civil pro-
ceedings by the Supreme or Appellate Courts. Rules
1 and 2 of the Rules of Practice and Procedure of the
Supreme Court of Illinois, as amended and in force
June 18, 1935.
The abstract of the record contains what purports
to be assignment of errors, but no such assignment of
errors are written upon or appended to the record in
this case, and even if there were it would avail noth-
ing as this case is in this court on appeal from the
Circuit Court of Logan county, the only method pro-
vided by the Civil Practice Act for its review, it being
a civil case and not a proceeding that might be re-
viewed by writ of error sued out of this court.
In addition to Rule 9 of this court, Rule 1 (2) as
amended provides in part as follows :
"No assignment of errors or cross errors shall be
necessary, except the statement in the brief, at the
conclusion of the statement of the case, of the errors
relied upon for reversal, as required in Rule 9."
For the reason that we are without authority to re-
view this case the appeal must be dismissed at the
costs of appellant. Farmers State Bank of Belvidere
V. Myers, 282 111. App. 549; Bender, Admx., etc., v.
The Alton Railroad Co., No. 8969, filed in this court
on February 29, 1936.
Appeal dismissed at costs of appellant.
Appeal Dismissed.
(Three pages in original opinion.)
.:io<jL
QlM'^.^U^^
7-/f- C
Published in Abstract
Helen Keckich, Plaintiflf-Appellanj;, v. New phgland
Mutual Life Insurance Comply, a Corporation,
and Thomas J. Keckich, Defendants-
Appellees.
Appeal from Circuit Court of Sangamon County.
jAijuABY Term, A. D. 1936. 2 R .^ T A
No. 8980 Agenda No. 19
Mr. Justice Davis delivered the opinion of the
Court.
This appeal was taken by appellant from a judgment
of the circuit court of Sangamon County dismissing
said cause as to the defendant, Thomas J. Keckich,
and entering a judgment in bar of the action as to said
defendant.
It was submitted to this court for determination at
the January Term, 1936, thereof. Upon an examina-
tion of the brief of appellant we find that we are with-
out authority to review said cause.
Rule 9 of this court, as amended, provides that the
concluding subdivision of the statement of the brief
of an appellant shall be a brief statement of the errors
relied upon for a reversal. No such errors are as-
signed. The assignment of errors in the brief of ap-
pellant is not a mere form that will be considered
waived if not objected to, but is one of substance. It is
the pleading in this court of appellant and if this court
were to inadvertently reverse a judgment in a case
where no errors were assigned the judgment would
be set aside upon motion. Rosin v. Wilde, 80 111. App.
58.
The opinion of this court filed February 29, 1936,
in the case of Bender, Administratrix v. The Alton
Railroad Co., No. 8969, is decisive of this question.
See also Farmers State Bank of Belvidere v. Meyers,
282 111. App. 549.
The appeal is therefore dismissed at costs of ap-
pelleB;''^r
Appeal Dismissed.
(Two pages in original opinion)
600
J^.yo
John W. Cherry, Receiver, et al., Plaintiff-Aijiellant,
V, Aetna Casualty & Surety Company, a Corpo-
ration, Defendant-Appellee.
Appeal from Circuit Court, Vermilion County.
October Term, A. D. 1935. ^ (5 ^ I»A» 601
Gen. No. 8948 Agenda No. 26
Mr. Justice Allaben delivered the opinion of the
Court.
This case, which is based upon the fourth amended
declaration of John W. Cherry, receiver, plaintiff-
appellant, consisted of seven assignments of breaches
of the bond sued on. The bond sued on was dated
May 3, 1926, and recited that the principal Charles /
Benson, Inc., had entered into a contract with the
Danville Hotel Company to construct an hotel build-
ing which contract was by reference made a part of
the bond. The condition of the bond was that the
principal should faithfully perform the contract on
its part and satisfy all claims and demands incurred
for the same, indemnify and save harmless the owner
from all costs and damage suffered by reason of its
failure to perform, reimburse and pay the owner all
outlay and expense incurred by reason of default, and
pay all persons who have contracts directly with the
principal (Benson, Inc.) for labor or materials. The
bond also contained a provision for the subrogation of
the surety to all rights of the principal under the
building contract.
Before the hotel building was completed Benson,
Inc., failed to pay certain sub-contractors who filed
mechanics' liens against the hotel property and the
hotel company did not fully pay Benson, Inc. uuder
its contract with it for the completion of the building.
Following this John W. Cherry was appointed receiv-
er and the Danville Hotel Company adjudicated a
bankrupt in the United States District Court.
The original suit was brought on the bond by
Cherry, as receiver, for the use of 0. K. Yaeger and
Carson, Payson Company, as sub-contractors. A judg-
ment was entered on this suit in the full amount of the
penalty of the bond, which was $822,699, against
Page 2 Gen. No. 8948
Charles Benson, Inc., and the Aetna Casualty & Surety-
Company, the principal and surety on said bond, re-
spectively.
The hotel company, in order to provide funds for
construction, executed a trust deed on the property
for $700,000 to secure certain bonds. These bonds
were sold to divers persons who are represented in
this suit by Hopkins, Todd and Simon as a bond
holders' committee and are the beneficial usees in this
proceeding for whom John W. Cherry as receiver as-
signs breaches. In the bankruptcy court a petition
was filed to marshal all liens and securities by the trus-
tee in bankruptcy, and all sub-contractors under
Benson, Inc. and all bond holders, mortgagees, the
surety company and the contractor, were made parties
defendant, served with process and appeared in said
cause. The sub-contractors claimed in this proceeding
that their liens were prior to the lien of the first trust
deed; the grantees in the trust deed and the bond
holders ' committee claimed the trust deed a first mort-
gage superior lien to all other liens. The Aetna Casu-
alty & Surety Company and the contractor, Benson,
Inc., in their answer, averred that Benson had made
an assignment to the surety company and it was en-
titled to a lien against the hotel property superior to
all other liens by subrogation for the amount due the
general contractor which remained unpaid under the
contract for construction. After hearing, the bank-
ruptcy court ordered the property of the Danville
Hotel Company sold free and clear of all liens, the pro-
ceeds to be subject to liens as if they were still real
estate and the court further held that the liens of all
sub-contractors were prior to the lien of the trust deed
securing the bonds, that the Aetna company and
Benson, Inc. had no lien whatever. The judgment of
the district court of the United States in favor of the
sub-contractors gave them a priority to the extent of
$82,244.04. This judgment was upheld by the United
States Circuit Court of Appeals. (38 Fed. (2nd) 10).
Upon sale the hotel property was bid in on behalf
of the bond holders for a sum less than the total
amount due on said bonds and the bond holders were
required, as a condition precedent to purchase, by the
federal court, to deposit with the court a sufficient sum
of money to pay off prior liens of the sub-contractors,
although the trust deed contained a provision that in
the event of a sale, the bond holders could pay their
bid in bonds if they became the purchasers. Subse-
Page 3 Gen. No. 8948
quently the sub-contractors were paid out the money
which the bond holders had deposited with the federal
court.
The present usees now claim in this suit, by addi-
tional assignment of breaches of the bond, that they
have a right to recover on account of the payment of
the sub-contractors' claims out of the money which
they were ordered to deposit with the trustee in bank-
ruptcy by reason of the fact that they then obtained
the same right by subrogation to sue upon the contrac-
tor's bond that .such sub-contractors originally had.
Of the seven assignments of breaches in the said
fourth amended declaration the plaintiff withdrew, the
third, fourth and fifth, leaving the first, second, sixth
and seventh assignments. The first alleged the ob-
taining of the judgment by plaintiff-appellant against
Benson, Inc. and the Aetna Casualty & Surety Com-
pany hereinbefore referred to, on the 5th day of De-
cember, 1930, for $822,699; that certain damages to
0. K. Yaeger and Carson Payson Company were as-
certained in said cause ; that the plaintiff, by virtue of
the statute, filed additional breaches for Hopkins,
Todd and Simon, trustees, to be collected out of said
judgment or penalties. The first assignment and
amendment thereto alleged the premium for the bond,
its provisions, the contract between Benson and the
hotel company, the contract between Benson, Inc. and
certain sub-contractors for material and labor to the
value of the priority which the bond holders were com-
pelled to pay in the bankruptcy court, the failure of
Benson, Inc. to perform its contract with the hotel
Company and the failure of the general contractor to
pay the sub-contractors. It further alleges the pro-
ceedings in the federal court hereinbefore stated, and
the payment of the sub-contractors ; that the payment
to .said sub-contractors was a payment by the owners
of said bonds and their trustees by compulsion of the
court for the protection of their lien and that the said
bond holders are subrogated to all rights on the bond
against the Aetna company which said sub-contractors
had and that there is due from the Aetna Company,
the sum paid the contractors Avitli interest from July
28, 1928, amounting to $110,000.
The defendant-appellee originally filed seven pleas
to the first assignment, all of which were withdrawn ex-
cept the fourth and fifth. The fourth alleged that the
bond contained the following provisions: "No suit, ac-
tion or proceeding by reason of any default whatever,
Page 4 Gen. No. 8948
shall be brought on this bond after twelve months from
the day on which the final payment under the contract
falls due," and that the filing of the declaration was
more than a year from the date of final payment.
Plaintiff filed a demurrer to this plea Avhich was sus-
tained and the defendant elected to abide by its fourth
plea.
The fifth plea alleged substantially that the contract
between the hotel company and Benson provided that
the contractor should be paid the sum of $604,899, and
extras in the amount of $12,421; that Benson com-
pleted the work and delivered the hotel building which
was accepted on March 21, 1927, and that the hotel
company failed to pay the amount due under the con-
tract and was adjudged a bankrupt on July 17, 1927;
that the sub-contractors obtained prior liens as here-
inbefore set forth. It further alleged the proceedings
in the United States district court and further that
Charles Benson was paid $465,121, and that crediting
the amount paid the sub-contractors by the bondhold-
ers, Benson was still entitled to $27,854, which amount
was allowed in the bankruptcy as a common claim and
upon Avhich Benson, Inc. had received a dividend of
$835.69. That by reason of the premises, Benson, Inc.
had an equity superior to the equity of plaintiff and
superior to the equity of the hotel company whereby
neither the hotel company nor the trustees for the
bond holders Avere subrogated to any rights which they
could enforce against the surety company. The plain-
tiff filed its demurrer to this plea and the demurrer
was overruled, and the plaintiff' elected to abide by its
demurrer.
The second assignment of breach alleges the execu-
tion of the trust deed by the hotel company; that the
holders of the bonds were the owners of the property ;
that the deed in trust contained the covenant that the
hotel property should be free and clear of liens except
the first trust deed and that the hotel company would
pay or cause to be paid the claims of any and all sub-
contractors and material men and that the Aetna Casu-
alty & Surety Company, for a consideration paid by
the hotel company together with Charles Benson, Inc.
delivered the contractor's bond referred to herein to
the hotel company and after reciting the failure of
Benson, Inc. to pay certain sub-contractors, alleges
that the bond holders entered into a bond holders ' pro-
tective agreement with a committee consisting of
Hopkins, Todd and Simon as trustees, and that the
Page 5 Gen. No. 8948
trustees were third parties beneficiary and as such en-
titled to recover upon the bond. The defendant filed
its demurrer to this assignment of breach and the de-
murrer was sustained, and the plaintiff elected to
stand by the assignment.
The sixth assignment of breach alleges the consid-
eration paid by the hotel company to the surety com-
pany for the bond ; the failure of Benson, Inc. to per-
form its contract, and the filing of the mechanics ' liens
set forth herein; the payment of the liens of the sub-
contractors to protect the interest of the bond holders
and that the bond holders became subrogated to all
rights that each of the sub-contractors had or could
have enforced against Benson, Inc., or the Aetna sure-
ty company under said bond; that nothing has been
repaid by the hotel company or the Aetna company
and that the plaintiff, on behalf of the usees, who are
the bona fide assignees and subrogees, is entitled to
recover. To this assignment, the defendant, Aetna
company, filed two pleas which were substantially the
same as filed to the first assignment of breach. To
these pleas the plaintiff filed four replications,
the first alleging that the Aetna company paid
nothing toward discharging the said sub-contractors'
liens, reciting the covenant in the trust deed that the
holders of bonds could apply them toward pajnuent of
the purchase price if the hotel building be sold by
order of court and the proceedings heard in the federal
court whereby the bond holders were required to dis-
charge the sub-contractors ' liens and that they thereby
became subrogated to the right of the sub-contractors
to recover on the bond.
The second replication alleged the proceedings in the
bankruptcy court and the third replication alleged the
original suit and judgment on said bond in favor of
0. K. Yaeger and Carson, Payson and Company and
the decision of this court upon appeal, and that the
former judgment of the circuit court and of the appel-
late court constitute an estoppel by judgment and ad-
judication which prevents the Aetna company from
again raising the question that it was not liable be-
cause the hotel company did not pay all that was due
under its contract to Benson, Inc.
The fourth replication alleged that the mortgage up-
on the hotel property was held for the benefit of all
persons who held bonds and that it contained a cove-
nant on the part of the hotel company not to allow me-
Page 6 Gen. No. 8948
chanics' liens to attach to the property until the bonds
were paid and that the funds raised by sale of the
bonds were to be used solely for the construction of
the building ; that the Aetna executed its bond with the
knowledge of these provisions. To these four repli-
cations, the Aetna company filed a demurrer which
was sustained by the court and the plaintiff elected to
stand upon the replications.
The seventh assignment of breach is substantially
the same as the sixth assignment to which the Aetna
company filed substantially the same pleas as to the
sixth assignment of breaches. A demurrer was filed
to the first plea and sustained by the court and the
plaintiff then filed four replications to the second plea
which were identical with the first, third and fourth
replications filed to the second plea of the sixth as-
signment of breaches.
The second replication alleged that the bond holders
acted upon certain false representations made by
Benson, Inc. and that the Aetna company, as the as-
signee of Benson, Inc. was estopped by reason of the
fraud of Benson from claiming any lien of equal or
prior rank to that of the bond holders. The defendant
demurred to these replications, the demurrer was sus-
tained by the court, and the plaintiff elected to abide
by the said replications.
The plaintiff assigns as error that the the court over-
ruled the demurrer of the plaintiff to the fifth plea
of the defendant to the first assignment of breach of
the fourth amended declaration; in sustaining the de-
murrer of the defendant to the i^laintiff's second as-
signment of breach of the fourth amended declaration ;
in overruling the demurrer of the plaintiff to the sec-
ond plea of the defendant to the sixth assignment of
breach of the fourth amended declaration; in overrul-
ing the demurrer of the plaintiff to the second plea of
the defendant to the seventh assignment of breach of
the fourth amended declaration; in sustaining the de-
murrer of the defendant to the first replication of the
plaintiff to the second plea of the defendant to the
sixth assignment of breach of the fourth amended dec-
laration; in sustaining the demurrer of the defendant
to the second replication of the plaintiff to the second
plea of the defendant to the sixth assignment of
breach of the fourth amended declaration; in sustain-
ing the demurrer of the defendant to the third repli-
cation of the plaintiff to the second plea of the defend-
ant to the sixth assignment of breach of the fourth
Page 7 Gen. No. 8948
amended declaration; in sustaining the demurrer of
the defendant to the fourth replication of the plaintiff
to the second plea of the defendant to the sixth as-
signment of breach of the fourth amended declaration ;
in sustaining the demurrer of the defendant to the
first replication of the plaintiff to the second plea of
the defendant to the seventh assignment of breach of
the fourth amended declaration ; in sustaining the de-
murrer of the defendant to the second replication of
the plaintiff to the second plea of the defendant to the
seventh assignment of breach of the fourth amended
declaration ; in sustaining the demurrer of the defend-
ant to the third replication of the plaintiff to the sec-
ond plea of the defendant to the seventh assignment of
breach of the fourth amended declaration; in sustain-
ing the demurrer of the defendant to the fourth repli-
cation of the plaintiff to the second plea of the defend-
ant to the seventh assignment of breach of the fourth
amended declaration; in entering judgment in favor
of the defendant-appellee and against the plaintiff-
appellant in bar of action and for costs.
A cross-appeal was filed by the appellee in Avhich it
was alleged that after the original suit upon the bond
was heard and judgment recovered against appellee,
damages assessed in favor of Yaeger and Carson
Payson, that the damages to these contractors were
paid on January 28, 1932, and the judgment was re-
leased on the record in the following words: "This
judgment satisfied this 28th day of January, 1932.
Gunn, Penwell & Lindley, Swallow & Bookwalter, At-
torneys for Plaintiff." That on August 17, 1932, the
circuit court gave the plaintiff leave to file additional
breaches and that the appellee appeared especially for
the purpose of raising the question of satisfaction of
the judgment in open court and of showing that there
was no judgment on the records of the court unsatis-
fied. It further alleges that the plaintiff filed a mo-
tion to vacate the satisfaction of judgment and that the
circuit court denied the motion of the surety company
to quash the notice of application for inquisition of
damages on additional assignment of breaches and to
strike the amended declaration. That the court allowed'
the motion to set aside the satisfaction of judgment
and that this action on the part of the trial court was
erroneous and alleged further the error for adverse
rulings to the defendant on demurrer as hereinbefore
stated.
The pleadings and the assignment of errors upon
the rulings of the court thereon raise the following
Page 8 Gen. No. 8948
questions : (1) Whether the plaintiff, under the plead-
ings, has a right to recover upon the theory of subro-
gation; (2) whether the Benson, Inc. has an equity
superior or equal to the plaintiff's by reason of the
failure of the hotel company to pay what was due un-
der the construction contract; (3) whether the plain-
titf, under the pleadings, may recover as a third party
beneficiary from the Aetna Casualty & Surety Com-
pany upon the allegations contained in the second as-
signment of breach and admitted by the demurrer
thereto; (4) whether the plaintiff is barred from main-
taining the action in the trial court by the limitation
of time contained in the terms of the bond, or by the
satisfaction of the judgment on the record as alleged
in the cross-appeal.
It is contended by the appellant in this case that
since the bond holders' committee was compelled by
the United States district court to deposit $82,244.04
as a condition precedent to being permitted to bid at
the trustee's sale, and since this monej^ was for the
purpose of paying off the sub-contractors who re-
mained unpaid, the bond holders' committee thereby
became subrogated to such sub-contractors' rights to
sue the surety company under the clause in the bond
whereby the surety company agreed to pay all persons
directly contracting with Benson for labor and materi-
als. It would appear that such subrogation would
come within the classification of legal subrogation as
distinguished from conventional subrogational which
later type arises by virtue of an express contract.
(Novak v. Kruse, 288 111. 363.) In that case the court
incorporated in its opinion and approved the holding
in Home Savings Bank v. Bierstadt, 168 111. 618, in
which this distinction betw^een conventional and legal
subrogation is made. As stated in Dunlap v. Peirce,
336 111. 178, "Subrogation is the substitution of an-
other person in the place of a creditor or claimant to
whose rights he succeeds in relation to the debt or
claim asserted, which has been paid by him involun-
tarily." This doctrine of legal subrogation is now
much encouraged by the courts and is a remedy highly
favored by them and the courts are inclined to extend
rather than restrict the principle. {Landis v. Wolf,
119 111. App. 11. Novak v. Kruse, supra.)
In the instant case, through the order of the federal
district court, the bond holders were not permitted to
exercise the privilege which Avas wa-itten into the trust
deed to use their bonds to bid upon the hotel property
Page 9 Gon. No. 8948
at the sale unless and until they had deposited with the
federal court a sufficient sum of money to take care
of the sub-contractors and contrary to the contention
of appellee in this case, that this money was obtained
through the sale of property, it Avas actually deposited
in cash by the bond holders under the order of court
to pay off the sub-contractors. Appellee further con-
tended that the plaintiff purchased liKe any other per-
son at the trustee's sale and that there was no com-
pulsion in the payment made by them when they re-
ceived the property for their bid which included the
cash deposit. This we do not believe is tenable, as
other prospective purchasers were not required to de-
posit a sufficient amount of cash to pay off the material
men's liens. The order of court, however, did compel
the plaintiffs to do so if they desired to bid. Thus it
appears to us that they come squarely -wdthin the I'ule
stated in Dimlap v. Peirce, supra, and have the right
to be substituted in the place of the sub-contractors as
their payment was not voluntarily made. It is true as
contended by appellee that subrogation is an equitable
and not a legal right and Avill not be enforced when it
is not equitable to do so or AA'here it would work in-
justice to others having equal equities but it is cer-
tainly equitable to invoke the rule of subrogation
where one individual is involuntarily compelled to pay
the debt of a person standing in the position of credi-
tor. In the case of The Hibernian Banking Associa-
tion V. Chicago Title and Trust Company, 217 111. App.
36, which involved a trust deed containing a provision
by which the mortgagor agreed not to suffer any me-
chanics' liens to attach to said premises nor permit
anything to be done that might impair the value there-
of, in that case the propertj^ was sold and the court
ordered the payment of certain liens from the pro-
ceeds of sale, and it was held that the mortgagee had
the right to pay the lien claims to protect his security
and Avould thus be subrogated to the rights of the lien
claimant. In Dunlap v. James, 174 N. Y. 411, the
court, in stating the rule for the application of the
doctrine of subrogation quotes from the case of Cole
V. Malcolm, 66 N. Y. 363, as follows: "It is generally
and most frequently applied in cases where the per-
son advancing money to pay the debt of a third party
stands in the situation of a suretj^, or is only secondar-
ily liable for the debt ; but it is also aiaplicable to cases
where a party is compelled to pay the debt of a third
person to protect his own rights or to save his own
Page 10 Gen. No. 8948
property," and the court, quoting from and approv-
ing Cottrell's Appeal, 35 Pa. 294, further said: "Sub-
rogation is founded on principle of equity and benevo-
lence and may be declared where no contract or privity
of any kind exists between parties. Whenever one not
a mere volunteer discharges the debt of another, he is
entitled to all the remedies which the creditors
possessed against the debtor." Our Supreme court,
in Thompson v. Davis, 297 111. 11, points out subroga-
tion is equivalent to an assignment of an encumbrance
to the party entitled to be subrogated so that he may
enforce the security and that in case of a mortgage
this is so even though there has been no actual assign-
ment and though the mortgage has been satisfied of
record. Obviously, in the instant case, it was neces-
sary for the appellant, in order to protect its property
at the trustee 's sale, to bid at that sale and since such
bid was conditioned upon the satisfaction of the claims
of the sub-contractors, we do not think it can be suc-
cessfully contended that the appellant in such pay-
ment was a volunteer or that the payment was not
made under compulsion. Such subrogee is invested
with every right and remedy the subrogor possesses
in reference to payment of the debt and stands in the
shoes of the creditor paid by him. {Dunlap v. James,
supra. Lochenmeyer v. Fogarty, 112 111. 572.) And
by reason of such substitution, such subrogee can sue
in all courts of law and equity in which creditor could
himself sue. {S tiger v. Bent, 111 111. 328. Krotein v.
Link, 173 N. E. 443.)
The fifth plea by the defendant to the first assign-
ment of breach by plaintiff raises the contention on
behalf of the defendant-appellee that the default upon
the part of the owner of the hotel building to the con-
tractor gives rise to an equity in favor of the defend-
ant-appellee and is a defense which constitutes a de-
fense to plaintiff-appellant's recovery. It appears to
us that the Aetna company, by its bond, in effect made
two bonds it made one payable to the owner and the
other payable to the sub-contractors (Alexander Lum-
ber Co. V. Aetna Co., 296 111. 500) and only defenses
in respect to the owner could be pleaded on the first
and defenses in respect to the sub-contractor pleaded
on the second. We believe that this contention on the
part of defendant-appellant is fully and completely de-
cided in the case of John W. Cherry v. Charles Benson,
Inc. 264 111. App. 199, which was the original suit
brought upon the bond in question in which the judg-
Page 11 Gen. No. 8948
ment hereinbefore referred to was entered. In that
case it was said: "Holding as we do that the condi-
tion as expressed in the bond in the case at bar is a
direct promise of the principal in the bond to pay for
all material contracted for by subcontractors and used
in the building, appellant as surety is liable therefor
and his liability cannot be avoided by the fact of the
breach of the hotel company in failing to make the pay-
ments to the contractor, Charles Benson, Inc., at the
times provided for in the contract." and the further
contention of defendant-appellee that the case just re-
ferred to was a suit by a sub-contractor who had not
been paid and that the instant case involves a sub-
contractor who has been paid, we think is without
merit. If the sub-contractors involved in this siiit had
been paid by the surety company, a different ques-
tion might be presented but these sub-contractors, as
before pointed out, were paid by plaintiff-appellant.
The next question is weather the issue raised under
the second assignment of breach will entitle the plain-
tiff-appellant to sue the surety company as third party
beneficiary. It appears to us that the bond holders
Avere promised by the hotel company when the money
was furnished by the bond holders that they would
build the hotel and that no lien would be allowed to
accrue on the property prior to the bond holders ' first
mortgage lien. The Benson company, the general con-
tractor, promised the hotel company that it would com-
plete the building and pay for the material and labor
used in its construction. The Aetna surety company
having knoAvledge of these promises, executed the con-
tractor's bond as surety so that the promise of
Benson Inc. and the Aetna company Avas that no liens
would accrue against the property which would jeopar-
dize the rights of the bond holders. In the case of
Carson Pirie Scott S Co. v. Parrett, 346 111. 252, which
case involved the same hotel company as in the in-
stant case, where the question was raised upon the
right of a person to sue as third party beneficiary, the
court said: "The rule is settled in this State that if
a contract be entered into for a direct benefit of a third
person not a party thereto, such third person may sue
for breach thereof. The test is whether the benefit to
the third person is direct to him or is but an incidental
benefit to him arising from the contract. If direct he
may sue on the contract ; if incidental he has no right
of recovery thereon. ' ' The court then cited a number
of cases in Illinois which expound this rule, and in
Page 12 Gen. No. 8948
that case the court further said that each case must
depend upon the intention of the parties as tliat inten-
tion is to be gleaned from a consideration of all of the
contract and the circumstances surrounding the par-
ties at the time of its execution. As we have stated,
the bond in this case was conditioned upon the faith-
ful performance of Benson, Inc. in the construction of
the hotel and the payment for the material and labor
therefor. The bond holders furnished their money for
the purpose of accomplishing the result of having a
completed building against which the lien of the trust
deed securing their bonds should be a first lien. We,
therefore, believe that the contractual obligation of
this bond was entered into for the direct benefit of the
bond holders and that under the rule laid do^\ai in the
case just cited, the bond holders would have the right
to sue the surety company in case of the default on the
bond as third parties beneficiary.
By the fourth plea to the first assignment and its
first plea to the sixth and seventh assignments, the de-
fendant-appellee contends that the bond issued by it
contained a twelve-month provision and that this pro-
vision bars the assignment of breaches by the trustee
of the bond holders on the theory that the action in this
case was not brought within the time stipulated in the
bond. Smith-Hurd Illinois Revised Statutes 1933,
Chapter 110, Section 35, which was in force at the time
this suit was instituted, specifically provides that a
judgment entered on a penal bond shall stand as secur-
ity for other breaches as may afterward happen. In
the case of Cherry v. Benson, 264 111. App. 199, here-
inbefore referred to, a judgment was entered on the
bond in this case in a suit started within the time lim-
ited by the bond to commence suit. This judgment,
under the statute, stood as security for other breaches
that might be assigned and the mere fact that the stat-
ute refers to a penal bond does not alter the situation
in this case, as our Supreme court has declared in the
case of Dent v. Davison, 52 111. 109, that there is no
difference between a private penal bond and an official
penal bond, in this regard. It is further contended by
defendant-appellee that because the bond in question
provided that no suit, action or proceeding by reason
of any default whatever should be brought on this bond
after twelve months, etc., includes such assignments of
breaches upon which recovery is sought in the instant
case and relies upon the case of McDole v. McDole,
106 111. 452, claiming that the assignments of breaches
Page 13 Gen. No. 8948
of plaintiff-appellant constitute a splitting of actions.
The case cited by appellee is based upon the case of
People V. Compiler, 14 111. 447. In the Compher case
the court pointed out that once a judgment had been
entered upon a bond, no further action could be main-
tained upon the obligation for it had merged into judg-
ment. The judgment was for the entire penalty and
no further proceedings can be had thereon except by
the way indicated by the statute; i. e. by further as-
signment of breaches. This would indicate a contin-
uation of the same action by new assignments of
breaches and if there had been only nominal damages
assessed in favor of Yaeger or Carson in the original
case when the original judgment was obtained on the
bond, we think that additional breaches could have
been assigned in this case. (Lesher v. United States
Fidelity d Guaranty Company, 144 111. App. 632.)
We, therefore, believe that the suit was instituted
within the limitation of time placed in the bond and the
additional assignment of breaches at this time is per-
fectly proper, so long as it is within the general stat-
ute of limitations.
The only other question in this case is raised by the
appellee by way of cross-appeal and that is that the
satisfaction of judgment entered upon the records by
the attorneys for Yaeger and Carson in the original
suit, constitutes a satisfaction of the judgment and a
bar to plaintiflF-appellant 's recovery. In addition to
the sho"\\dng of the plaintiff in support of his motion to
vacate and correct the purported satisfaction, the affi-
davits of 0. K. Yaeger, William H. Carson, president
of Carson Payson Company, of Mr. Gunn and of Mr.
Brookwalter, their attorneys, were tiled showing the
amount assessed to them as damages, the receipt of
the same from the Aetna company, that no other
amount was ever paid and that no attorneys of theirs
had any authority to make full satisfaction of the
judgment entered. As has been pointed out, when a
suit is broug'ht on a penal bond and developes into a
judgment for the penalty of the bond, the bond is then
merged into the judgment and no other suit by any
person could be instituted on the same bond, and if
the trial court did not have the power to correct such
judgment, one who obtains nominal damages in the
original suit could then release the judgment when his
claim was satisfied and others who might have dam-
ages which they should collect against a surety in
large amounts would be barred from doing so because
Page 14 Gen. Xo. 8948
only one suit avohM lie upon the bond. Certainly, the
purported release by the attorneys for Yaeger and
Carson did not and could not bar the right of any third
person, and the court, therefore, committed no error
in setting aside such falsei satisfaction. {Western
Tube Company v. Aetna Inrlemnity Company, 181 111.
App. 592.)
For the reasons given, we believe that the court er-
roneously sustained the demurrers of the defendant to
the second assignment of breach and to the replica-
tions of the plaintiff to the second pleas to the sixtu
and seventh assignments of breach and in overruling
the plaintiff's demurrers to the fifth plea to the first
assignment of breach and to the second plea to the
sixth and seventh assignments of breach. This case
is, therefore, remanded to the circuit court, with direc-
tions to overrule the demurrers of the defendant to
the second assignment of breach and to the replica-
tions of plaintiff to the second pleas of defendant to
the sixth and seventh assignments of breach and to
sustain the plaintiff's demurrers to the fifth plea to
the first assignment of breach and to the second plea
to the sixth and seventh assignments of breach, and
that such other proceedings may be had consistent
with the pleadings and not inconsistent with this
opinion.
Reversed and Remanded with Directions.
(Twenty-seven pages in original opinion)
(»593— 12J
■act
./<L .
.?o)2^
Published in Abstract
In Re Estate of Enoch Brock, Deceased; ^ecta Fen
stermaker, Plaintiff-Appellee, v. Matti^ Brock,
Administratrix, Defendant-Appellant.
Appeal from Circuit Court^ McLean County.
January Term, A. D. 1936. 2S^T A f\ fi 'f
Z-
Gen. No. 8950
Agenda No. 8
Mr. Justice Ajxaben delivered the opinion of the
Court.
Tliis appeal is from a judgment entered in the cir-
cuit court of McLean comity, Illinois, in the amount
of $3,211.20 rendered against the defendant-appellant,
Mattie Brock as administratrix of the estate of Enoch
Brock, deceased. The claixn which plaintiff-appellee
made Avas for an alleged balance due her under a con-
tract of employment for salarj^ computed at the rate
of $15 a week, and extending from January 1, 1925, to
the time of the death of her employer, Mr. Brock, on
August 8, 1933, a period of some 8Y_> years. The plain-
tiff was secretary and stenograiDher for Mr. Brock, a
laAvyer, and had worked for him for many years. The
balance due was arrived at by making the charges for
the period stated, and after crediting $240 for 16
weeks off, and $3,268.80 which had been paid during
that period. The claim was first heard in the probate
court where it was dismissed for want of merit, the
court finding that the appellee Avas an incompetent
witness in her own behalf, and failed to support her
claim by competent proof. The appellee, as claimant,
then appealed to the circuit court where a trial was
had without a jury, which resulted in the judgment
herein referred to. In support of her claim the ap-
pellee called ten witnesses, besides herself, most of
whom testified merely to their visits to Mr. Brock's
office where they had seen appellee employed as a sec-
retary and stenographer. Some of the witnesses testi-
fied as to business transactions handled by the appellee
in Mr. Brock's office, but none of them testified to any-
thing about the business relations of the appellee with
her employer, except one, Avho testified that he saw
appellee in Mr. Brock's office; that she Avas his secre-
tary; that he had talked to Mr. Brock in the fall of
Page 2 Gen. No. 8950
1932 about his financial condition; that Brock said he
owed some $4,000 or $4,200, $500 or $600 in small bills,
and the rest in the Corn Belt Bank; that he owed ap-
pellee quite a little, and that he would like to get a
farm loan to take care of those matters; and that a
$7,000 loan was discussed.
This Avitness further testified that several years be-
fore, while talking to Mr. Brock about the girl who
worked in his office, he told Brock that he had raised
her salary to $15 per week, and that Brock had said,
' ' That is the same as I am paying my girl. ' ' In addi-
tion to this testimony appellee produced some loose
sheets taken from an old book which contain entries
over a period of several years, 1924 and 1925, which
have a number of items designated "salary," many
of which are $15 items, and which appellee testified
represented her receipts, and had reference to just
what she had received ; that they were kept by her in
the usual course, were true and correct, and were
original entries. She further testified that she had
transcribed the items on the yellow sheets to the pages
of a bound book which was introduced in evidence, and
that she kept the original entries in the bound book
for the years 1927 to 1933. This book likewise shows
entries for "salary," most of the items being in the
amounts of $5, $10 and $15. Mr. Brock's name only
once appears, and is given credit by cash for $5, in
these records.
In addition appellee also offered in evidence six
pages of a vest pocket memorandum, the first page of
which was headed "Paid Miss F." followed by a
column of dates and a column of figures. This was
also introduced as an original book of account. Over
objection appellee was allowed to testify that it was
Mr. Brock 's book, that he made the entries, that it was
in his handwriting, and that he did not have any other
book in which the account was kept. Further that the
book had been presented to her for comparison, and
discussed with her, and that she had observed Mr.
Brock make entries in the same when payments were
made. That the entries in the two books referred to
the salary account.
It appeared on cross examination that appellee kept
books for Mr. Brock in his office, wrote checks on his
account, and was his cashier, and kept other books of
account for the decedent. Appellant contends that
the judgment in the trial court should be reversed
because the appellee is not a competent witness in her
Page 3 Gen. No. 8950
own behalf in support of her claim against the estate,
that the court erred in not limiting her testimony to
the identification of her books; that records admitted
in evidence are not books of account within the pur-
view of section 3 of the Evidence act, were inadmis-
sible, and if admitted without explanations made by
appellee's testimony, fail to prove her claim; that
the items of wages anti-dating five years the date of
the death of the deceased are barred by the statute of
limitation.
111. State Bar Stats. 1935, Chap. 51, Sec. 2, provides :
"no party to a civil action, suit or proceeding, * * *
shall be allowed to testify therein * * * in his own be-
half, * * * when any adverse party sues or defends
as the * * * administrator * * * of any deceased per-
son," {Grinton v. Strong, 148 111. 587; Branger v.
Lucy, 82 111. 91;Kempton v. People, 139 111. App. 563.)
This is modified by Chap. 51, Sec. 3, to the extent that
"where in any civil action the claim or defense is
founded on a book account, any party or interested
person may testify to his account book and the items
therein contained; that the same is a book of original
entries and that the entries therein were made by him-
self, and are true and just, or that the same were made
by a deceased person, * * * in the usual course of
trade" {Ailing v. Brazee, 27 111. App. 595; Miller &
Graves v. Pratz, 179 111. App. 204.) In the instant
case the plaintiff introduced into evidence certain rec-
ords which she testified were books of account but they
did not in any way substantiate her contention as to
any contract with her employer for a certain stipulated
salary. It would be necessary to consider her general
testimony relative to the transactions purported to be
shown by this set of records in order to make them
valuable in supporting her case. Obviously, the stat-
ute does not permit her general testimony in this re-
gard, and in the face of the further fact that there is
nothing shown in the books of account which the plain-
tiff appellee kept for Mr. Brock which has anything
to do with her salary account the so-called "books of
account" which were introduced in evidence, to-wit,
the pocket memorandum kept by Mr. Brock, and the
book in which plaintiff shows her receipts for salary,
along with other items of receipts, is not sufficient in
our opinion to establish a contract between the plain-
tiff, and her employer at the rate of $15 per week, or
for any given period.
To be received in evidence books of account must
be books of original entry of transactions made as
Page 4 Gen. No. 8950
they occurred in the regular course of business Kihbe
V. Bancroft, 77 111. 18; Brooks v. Funic, 85 111. App.
631. It does not appear that the exhibits introduced
by the appellee as books of account meet these qualifi-
cations. There is nothing in the manner in which en-
tries are made therein that would indicate they were
kept in the regular course of business, for in plaintiff's
book she has distributed receipts by her to various
dates which do not correspond with any record which
was kept by Mr. Brock in his memorandum book, ex-
cept as to totals, and there are not the usual debits and
credits in either of these records that are customary
in a regular book of account. Had there been a salary
account in the regular books of Mr. Brock, kept by the
appellee, with debits on the account for salary earned
and credits for salary paid, it could be taken as some
evidence at least of an arrangement to pay a certain
salary, but in this case the appellee kept her purported
account book and Mr. Brock kept his memorandum,
absolutely separate from the books of the office. And
there is nothing in either one to show a rumiing ac-
count of salary with the usual debits and credits. So
far as this court can see the purported account books
offered in evidence are nothing more than memoranda,
and as such are not admissible as independent evi-
dence but only for the purpose of refreshing the recol-
lection of the witness, {Western Union Cold Storage
Co. v. Warner, 78 111. App. 577 ; Sullivan v. Miller, 169
111. App. 807.) Since the plaintiff cannot testify in
her own behalf these memoranda become valueless as
evidence in this case to establish a contract. As said
by the court in Cairns v. Hunt, 78 111. App. 420, in
reference to a memorandum which was offered in evi-
dence, "It is a mere memorandum for the convenience
of a real estate firm and discloses no purpose to charge
or bind any one. Such memoranda are sometimes re-
sorted to to aid the memory of a witness, but not as
proof to the jury of a disputed fact." So, in the
instant case the memorandum which was introduced
in evidence by plaintiff-appellee which consists en-
tirely of cash items received in her book and ap-
parently of cash items paid in the memorandum book
of Mr. Brock, and neither of which contain any
charges against any person and certainly cannot be
said to have been kept in the regular course of Mr.
Brock's business, cannot be considered to be books of
original entry, and entitled to be admitted under sec-
tion 3 of the statute referred to.
Page 5 Gen. No. 8950
The only other evidence which was offered which
would tend to support the contention of plaintiff-ap-
pellee was the statements of the deceased, Mr. Brock,
in a conversation between himself, and the witness
PajTie, which occurred several years prior to his death,
in which he told the witness that he was paying his
girl $15 a week and that he owed her quite a little. We
do not think that this testimony is sufficient to estab-
lish a claim against the estate of Mr. Brock. There is
nothing in this testimony to indicate that he had a
contract to pay his stenographer and secretary a par-
ticular wage, or what amount he then owed her, or
whether it was money that was owed. The courts of
this state do not consider the uncorroborated admis-
sion of a deceased, particularly where it occurs in a
casual conversation, to constitute the type of evidence
required to establish a claim against the decedent's
estate. (Delee v. Leahy, 278 111. App. 178. Bragg v.
Geddes, 93 111. 39.) For the reasons given we believe
that the judgment of the trial court should be reversed.
Judgment Reversed.
(Nine pages in original opinion)
(158S— 12).
'"^■"^ ■' '■ '■•'*■'
If/, o u
7-/f- C
Ptjblshed in Absteact
Agnes Fromme, Appellant, v. City of Giraxd, lUi^wfis, /
a Municipal Corporation, Appellc^.
Appeal from Circuit Court, Macoupin County,
Januabt Term, A. D. 1936. O Q ^ T \ Ct Ci T
Gen. No. 8963 Agenda No. 11
Mr. Justice Auoaben delivered the opinion of the
Court.
This was an action by plaintiff-appellant, Agnes
Fromme, against defendant-appellee, the City of
Girard, Illinois, to recover damages occasioned by
plaintiff's falling on an alleged defective sidewalk
in said city, on the evening of April 19, 1933. Notice
of the injury was filed with the city attorney and with
the city clerk of Girard, Illinois, on June 6, 1933, and
thereafter a complaint was filed in the circuit court of
Macoupin county by the plaintiff to the January term,
1934, said complaint being filed on the 9th day of
January of said year. An answer was filed by the city
on February 5, 1934, and subsequently the complaint
was amended by leave of court, in September, 1934,
to be against the City of Girard, Illinois, instead of
the Village of Girard, as originally drawn. The cause
was tried on the amended complaint, and resulted in
a disagreement of the jury. A new trial was ordered.
Subsequently, by agreement of parties, a jury was
waived and the cause was heard by the three judges of
the seventh judicial district sitting en banc. This
court has not been favored with either the record
proper or with a report of proceedings at the trial,
and, of course, there is no abstract thereof. In lieu of
such record on appeal counsel for all parties litigant
have filed a copy of the declaration, and of a notice of
suit to be brought which was served on the city attor-
ney and on the city clerk, together with a copy of the
order finding the issues in favor of the plaintiff and
against the defendant, and assessing the plaintiff's
damages at the sum of $1,500, and entering judgment
thereon ; also a copy of the order denying a motion for
new trial, certified to by the clerk, together with an
agreement to submit to the Appellate court proposi-
tions of law. This agreement recites the judgment;
Page 2 Gen. No. 8963
that the injury occurred on April 9, 19.33 ; that on the
16th day of January, 1935, the time of trial, that plain-
tiff was still crippled, walking with a crutch, and her
arm too weak to enable her to do her usual work. That
after nearly two years she was still crippled and un-
able to do her regular work, and that the doctor's tes-
timony was that the bones had not properly knit, and
caused her difficulty, especially in any effort to ascend
steps; that there was no allegation as to the perman-
ence of the injury in the declaration, and that the
judges sitting en banc did not consider permanent
injuries in fixing damages for that reason. The fol-
lowing questions of law were submitted: First: On
the part of or in behalf of the city of Girard: That
the notice of the accident or injury served upon the
city attorney and upon the city clerk of the city of
Girard, and notice of suit or intent to sue, Avere insuffi-
cient in that (a) the notice did not sufficiently de-
scribe the place of accident at which complainant or
plaintiff was injured; (b) that the residence of com-
plainant or plaintiff was not set forth in said notice
with sufficient definiteness. Second: On the part of
or on behalf of complainant or plaintiff, Agnes
Fromme, that it is not essential or necessary to allege
in the declaration the matter of permanent injuries in
order to sustain an award for personal permanent in-
juries if the proof in the trial court so establishes them.
Both plaintiff and defendant in their briefs discuss
many other questions. From these briefs together
with the stipulation mentioned, and from the evidence
which is not in dispute, it appears that on April 19.
1933, at about 7 :30 P. M., the plaintiff, her sister, and
a friend, were walking in an easterly direction on a
public sidewalk in said city when the plaintiff stumbled
over a section of concrete sidewalk elevated two and
one-half to four inches above the adjoining section,
causing the plaintiff to fall, by reason of which fall she
sustained injuries to her knee and wrist. At this trial
a judgment was rendered against the city for $1,500,
and the city filed a motion for a new trial which was
overruled. The defendant offered no evidence, taking
the position that the notice served on the city was
insufficient, (1) through failure to adequately describe
the place of the injury, (2) because it incorrectly set
forth the residence of the plaintiff. It further urged
that the defects in the walk were not in themselves
sufficiently dangerous to require the city to respond
in damages.
Page 3 Gen. No. 8963
On June 3, 1935, the plaintiff filed a motion to vacate
the judgment, and to enter a judgment commensurate
with the proof on the ground that the court had erred
in failing to consider permanent injuries to plaintiff
under a misapprehension that it was necessary that
such permanent injuries be alleged in the complaint.
Subsequently it was agreed to submit this case to this
court upon the hereinbefore mentioned stipulation.
As to the question of notice, 111. Rev. Stats., 1931,
Chap. 70, Sec 7, provides: "Any person who is about
to bring any action or suit at law in any court against
any incorporated city, village or town for damages
on account of any personal injury shall, within six
months from the date of injury, or when the cause of
action accrued, either by himself, agent or attorney,
file in the office of the city attorney (if there is a city
attorney ,and also in the oflSce of the city clerk) a
statement in writing, signed by such person, his agent,
or attorney, giving the name of the person to whom
such cause of action has accrued, the name and resi-
dence of the person injured, the date and about the
hour of the accident, the place or location where such
accident occurred and the name and address of the
attending physician (if any)" The notice which was
given in the case at bar was as follows :
"1. My name is Agnes Fromme.
2. I reside at Girard, 111.
3. The accident by which I received such personal
injury occurred on the 19th day of April, 1933, at about
the hour of 7:30 o'clock, P. M. at about I/2 block west
of Interurban Station between Girard Bakery and In-
terurban Station.
4. My attending physicians were:
Dr. G. H. Hill — address — Girard, Illinois.
Dr. Chamness — address, Carlinville, Macoupin
Hospital.
Dr. G. W. Staben — address, Springfield.
Dated this 6th day of June, 1933.
Signed: Agnes Fromme, Plaintiff.
By R. W. Gill, Attorney.
R. W. Gill, Attorney for Plaintiff,
2141/2 South Sixth St., Springfield, Illinois."
In the case of Wikel v. City of Decatur, 146 111. App.
51, which case involved a suit for damages for in-
juries resulting from a fall upon a defective sidewalk,
the notice designates the sidewalk in question as
"being situate on the west side of a certain public
street originally laid out and designated as Chisholm
street, but now commonly known as and called East
Page 4 Gen. No. 8963
avenue; said street being between Stone and Stock
streets in said city, and that the place where the said
sidewalk was out of repair was at a place where a
certain alley intersects said street between the Wabash
railroad right of way and East Eldorado street, and
near the residence of the undersigned, Amanda J.
Wikel ; that her residence is 541 East Avenue, Decatur,
Illinois;" In discussing the sufficiency of this notice,
Mr. Justice Baume of this court said, "The suflBciency
of notice was a question of law for the court and not
a question of fact to be submitted to the jury. The
objection to the notice urged by counsel for applicant"
(that it did not properly designate the place of the
accident) "is hypercritical. A description in such no-
tice of the place where the injury occurred is sufficient
if it will enable the municipal authorities to ascertain
the place by the exercise of reasonable diligence, and
such description may be by reference to particular
buildings, or to another street, or to natural objects."
We are of the opinion in the case at bar that the no-
tice was sufficient in the description of the place where
the injury occurred, so that the municipal authorities
could by the exercise of reasonable diligence have
located the place where the injury occurred by the de-
scription given.
The other element of the notice which was objected
to was the description of the residence of the plain-
tiff. In case of Swanson v. City of Aurora, 196 111.
App. 83, in reference to the omission of the place of
residence of the injured person, in the notice, the court
said: "But the most serious defect in the notice in
question is the failure of the appellee to state his place
of residence. The residence given in the notice was
not his and never had been. The ommission of the
place of residence is clearly fatal to the validity of
the notice. And it is clear that this defect cannot be
cured by the showing that he resided at some other
place on the same street, for it is the very fact that he
resided at some other place than the one mentioned
in the notice that renders the notice invalid." This
holding has been approved in Frey v. City of Chicago,
246 111. App. 172.
Eeferring again to the notice given in the case at
bar under item 2, it recites, "I reside at Girard, 111."
In the briefs submitted by counsel in this ease it is
claimed by appellee that appellant lived just "outside
the city limits of Girard, Illinois," and by appellant
Page 5 Gen. No. 8963
that she lived "in Girard, Illinois." It might well be
said that if the residence of the plaintiff was not with-
in the corporate limits of the city of Girard, Illinois,
then following the rule of the cases hereinbefore cited,
the notice would be insufficient in that regard, but there
is nothing before tliis court to show whether the notice
in the case at bar correctly stated the address of the
plaintiff, and we cannot therefore pass upon the suf-
ficiency of the notice in so far as the residence of the
appellant is concerned.
As to the proposition submitted on behalf of the
plaintiff we believe the rule is well established that it
is not necessary to allege permanent injuries in the
complaint in order to sustain an award for permanent
personal injuries if the proof upon trial establishes
permanent injuries. This rule was recognized in the
case of Eagle Packet Company v. Defries, 94 111. 598.
In that case the court said: "The declaration express-
ly alleges that the plaintiff 'then and there became
and was sick, lame and disordered, and so remained
for a long time, * * * hitherto,' The permanency of
plaintiff's injury was merely evidence to be consid-
ered by the jury in determining the severity of plain-
tiff's sickness, lameness and disorder, and the rules of
pleading do not require the plaintiff to set forth in his
declaration the evidence upon which he relies." Again,
in the case of City of Chicago v. Sheehan, 113 111. 658,
where the declaration did not allege permanent injuiy,
the court said: "It is enough that the declaration
showed the injury received, without describing it in
all its seriousness, and the recovery could be to the
whole extent of the injury." These cases have been
followed and approved in the case of Klatz v. Pfeffer,
333 111. 90. Nevertheless, this court could not enter a
new judgment in lieu of the judgment rendered in the
trial court without having before it all of the neces-
sary facts, and as this case comes to this court without
a complete record of the evidence this court will not
enter a new judgment in lieu of the judg-ment entered
in the trial court since the facts set up in the stipula-
tion are not sufficient to enable this court to determine
the nature and extent of the permanent injuries of the
appellant. Therefore, this cause is remanded to the
trial court for a new trial, with instructions that the
plaintiff be permitted under her complaint to show the
nature and extent of the permanent injuries, if any,
and for such other proceedings as are not inconsistent
with this opinion.
Page 6 Gen. No. 8963
Reversed and remanded for new trial at which time
the plaintiff should he permitted under her complaint
to show the nature and extent of her permanent dis-
abilities, if any, and for such other proceedings as are
not inconsistent with this opinion.
(Ten pages in original opinion)
ct-
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PUBUSHED IN AbSTBACT
William C. Means, Executor of The Last Will /^d
Testament of W. L. Green, Appellee, v. H. W.
Green et al., Cecil Green, Ivan Green, Alice
Green and Lyle Green, Appellants.
Appeal from Circuit Court, McLean Count^ Cj 3 T /\ fC^ i\ '^
Januaky Term, A. D. 1936.
Gen. No. 8975 Agenda No. 17
Me. Justice Allaben delivered the opinion of the
Court.
The plaintiff-appellee, William C. Means, as execu-
tor of the last will and testament of W. L. Green, de-
ceased, on March 26, 1935, filed a petition in the cir-
cuit court of McLean County, Illinois, to construe the
will of W. L. Green, deceased. The deceased was a
bachelor and left surviving him as his heirs the de-
scendants of two deceased brothers, 0. A. Green and
Lauton Green. The testator died seized of farm lands
in McLean County, Illinois, and in Iowa and in Mis-
souri, which under the terms of the will were to be sold
and the proceeds divided.
The petition which was filed asked for construction
of the will and codicils thereto, and alleged that vari-
ous amounts of money were due from the devisees to
the testator for loans Avhich he had made to them in
his life time. The petition further set forth the con-
tention of the different parties interested as to the
proper construction of the will and codicils. At the
time the original will was drawn and executed the
testator's two deceased brothers were living, and
under the terms of the will, after the payment of debts
and the bequest of the perpetual care of a cemetery
lot, his estate was devised to the two brothers with the
provision that all money which had been advanced or
loaned to the nephews and niece, children of 0. A.
Green, interest thereon, and including certain specific
sums named by the testator, should be deducted from
the share devised to 0. A. Green, and that any sums
advanced to the children of Lauton Green, together
with interest should be deducted from his share. In
the first codicil the testator increased the charge
against the share of 0. A. Green from $3,000 to $9,100
Page 2 Gen. No. 8975
because of moneys due from a nephew, Bert Green,
and the codicil further provided that in the event that
either of the brothers should predecease the testator
the share which would have gone to that brother should
become the property of his descendants. The second
codicil to the will is in words and figures as follows,
to-wit: "It is my will that since both of my brothers,
O. A. Green and Lauton Green, have died since the
making of my will and codicil, it is now my will that
after the payment of my debts, my property, including
all the advancements which I have made to my
nephews and nieces shall be divided equally between
the heirs of Lauton Green and the heirs of 0 .A. Green,
each set of heirs to receive one-half, and that against
each of their respective shares will be charged the
amounts of money which they have already received
from me, and including the amount mentioned against
my nephew, Bert Green, the total sum against him be-
ing $9,100.00 and interest thereon from the date of
May 5, 1925. It is my will that all of the monies that
my nieces Caroline Riggs and Maude Rugless, and my
nephews, the children of both of my brothers, have re-
ceived from me shall draw interest at the same rate,
viz: 6% interest." The appellants, Cecil, Alice, Ivan
and Lyle Green, are grand nephews and grand niece of
the testator, being the children of Alonzo Green, the
son of 0. A. Green, brother of the testator. In addi-
tion to appellants, the other heirs of 0. A. Green are
Earl Riggs, the son of Caroline Riggs, deceased daugh-
ter of 0. A. Green, and H. W. and E. P. Green, both
children of the said O. A. Green. The Lauton Green
heirs consist of Maude Rugless and Harry Green,
children of the said Lauton Green. The appellants an-
swered the petition contending that the proper con-
struction of the will and codicils was that the residue
of the estate, including the advancements should pass
to the respective heirs, the same as though said estate
descended to them according to the statute of descent;
that appellants should each receive 1/32 of the residue
including advancements, and that the words "respec-
tive shares" in the second codicil should be construed
to mean the respective share of each heir individually,
and not the shares of the two groups of heirs collec-
tively. H. W. Green filed an answer denying that he
was indebted to the testator as stated in the will and
codicil.
By her answer Florida Riggs alleged the assignment
to her of the interest of Earl Riggs ; denied the indebt-
Page 3 Gen. No. 8975
edness of Caroline Riggs to the testator and alleged
that the testator should have filed a claim for the al-
leged indebtedness against the estate of Caroline
Riggs. This latter contention was overruled by the
court on a motion to strike by plaintiff. Harry Green
and Maude Rugless, as the heirs of Lauton Green, in
their answer contended that the total estate, including
the indebtedness of all the children of the two brothers
should be divided into two equal portions, one-half to
be taken by the 0. A. Green heirs, and from which all
of the indebtedness of that set of heirs was to be de-
ducted ; the other one-half to be taken by the heirs of
Lauton Green subject to the deductions of all advance-
ments to that set of heirs, with the right of contribu-
tion as between the heirs respectively in each group.
A decree was entered, finding to be due the estate,
from the 0. A. Green set of heirs, $33,455, and from
the Lauton Green set of heirs, $13,632, and the decree
further found, in construing the Avill and codicil that
the net estate, including advancements and loans,
made by the testator, together with interest, was to
be divided into two equal portions, one portion to go
to the family of 0. A. Green, and the other portion to
the family of Lauton Green ; that from the share going
to each of said families there should be deducted the
total loans and advancements made to the members
of each of said families, and the balance, if any, to be
distributed among the members of each family accord-
ing to the statute of descent, there being charged
against each individual share the amount of the loan
he or she had received.
From this decree this appeal is prosecuted, the ap-
pellants contending that the trial court erred in find-
ing that it was the intention of the testator to divide
the estate into two parts one part to go to each set of
heirs, and that each set of heirs was to be charged
with the moneys advanced to that set. Further error
is assigned because of the finding that the total amount
of loans and advancements made by the testator to
the members of the two families should be deducted
from the share going to such family, and in finding
that the balance, if any, should be distributed among
the members of that family in accordance with the
statute of descent, charging against each individual
share the amount of the loan which he or she had re-
ceived, and in not finding that it Avas the testator 's in-
tention to divide all his estate including property loans
and advancements into two equal parts, one part to go
Page 4 Gen. No. 8975
to the heirs of O. A. Green and one part to the heirs
of Lauton Green, and that against the individual
shares of each should be charged the money advanced
or loaned by the testator to each heir. There was no
question raised by appellants as to the amounts
found due from the heirs to whom advancements or
loans were made, but the appeal is based upon the con-
struction placed by the decree on the language of the
second codicil of the will herein quoted.
It is a well settled rule of will construction that a
will and its codicils are to be construed together as one
instrument. (Kern v. Kern, 293 111. 238.) The orig-
inal will and the codicils by interpretation should be-
come a consistent, harmonious whole, carrying out the
general scheme of the testator, according to his ex-
pressed intention. (Clark v. Todd, 310 111. 361. Tucker
v. Tucker, 308 111. 371.) Where a codicil to a will
changes the general scheme of the original will the
will itself will be modified only to such an extent as
to give effect to the codicil. (Vestal v. Garrett, 197
111. 398.)
In this case we believe it is apparent from the con-
text of the original will that the testator's intent, as
expressed therein was that his property should be
converted into cash, and divided equally between the
two brothers, 0. A. Green and Lauton Green, upon the
condition, however, that moneys loaned by him to the
nephews and niece, the children of O. A. Green, should
be deducted from that share and any sums of money
advanced to the children of Lauton Green should be
deducted from that share.
A consideration of the second codicil, which is the
one in question here does not, in our opinion, change
the general scheme outlined in the original will, for
by this codicil the testator provided that the shares
which would have gone to his brothers, 0. A. Green
and Lauton Green should descend to their heirs, and
as expressed in the codicil, "each set of heirs to re-
ceive one-half" This is consistent with the original
will because the testator has made the heirs of each
of the brothers in the distribution of his estate stand
in the place of the deceased brother After the words
"each set of heirs to receive one-half," the codicil por-
vides "and that against each of their respective shares
will be charged the amounts of money which they have
already received from me..." This likewise is not
inconsistent with the scheme of the original will and
can clearly be harmonized with the general intention
■■'•■li'i:- '■ ,.,3m ma..'
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Page 5 Gen. No. 8975
of the testator therein expressed. By the original will
any sums advanced by the testator to his brother's
children were to be deducted from that brother's share
whose children they were. By this codicil it is reason-
able to say that the testator intended that the advance-
ments made to the heirs of either of the deceased
brothers should be deducted from the share devised
to the set of persons who were entitled to receive the
portion of the estate originally devised to that one of
the brothers. In other words, by making the shares
of the deceased brothers go to a group of persons in-
stead of one person, it is not inconsistent to say that
it was the intention of the testator that the advance-
ments should still be deducted from the share. A per
stirpes distribution is clearly indicated by the original
will by the use of the language therein, "it being my
intention that my brother O. A. Green and his family
shall receive the same amount of money that my broth-
er Lauton Green and his family shall receive, after
taking into account all monies that either family have
received during my lifetime." If the interpretation is
not accepted that the obligations of each set of heirs
are to be charged against the share going to that set
of heirs then a result would obtain that is clearly con-
trary to the general intention as expressed by the
testator, for it is indicated that the distributable por-
tion of the estate will amount to approximately
$70,000, $35,000 of which would go to appellants. By
deducting the $33,655 already received by this set of
heirs it would leave a sum for distribution to that set
of approximately $1,345. Since both H. W. Green and
Harold Riggs, who belong to this set of heirs have
borrowed $27,750 of the share going to this set of
heirs, which would be $10,000 more than their share,
and since both of these individuals are hopelessly in-
solvent, then if the other two divisions of this group,
to-wit, E. P. Green, and the Alonzo Green children,
should receive the portion due them, which would be
$8,750 in the case of the Alonzo Green children and
$3,190 in the case of E. P. Green, the latter having
already borrowed $5,560, it would mean that this group
of heirs would receive $10,000 more than its share.
This certainly is not in accordance with the testator's
intention. In the case of Jordan v. Jordan, 274 111.
251, the testator provided by his will that certain ad-
vancements made to his grand son for educational pur-
poses and represented by the grandson's promissory
notes to the testator, should be deducted from the
Page 6 Gen. No. 8975
share going to the grandson's father, the sum de-
ducted to be distributed equally among all the children
of the testator, and in case of the death of any of the
children leaving children surviving, the children of the
deceased parent were to share and share alike in the
same. Thereafter the son of the testator, father of
the grandson, died, leaving eight children, and the
court decided that the debts of the grandson to the
testator were chargeable pro rata against all of the
heirs. In that case the court said: "The question
whether the Appellate Court was right depends upon
the proper construction of the will, the purpose of
which is to give it the interpretation, and meaning
which the testator intended it should have. In seek-
ing for the intention the whole scope and plan of the
testator is to be considered, and the intention is not to
be gathered from one clause of the will, alone, but
from all its parts." The court further said: "His in-
tention, as it appears to us, was to accomplish an equal
distribution among the children or those representing
them. For that purpose he provided for deducting
the advancements to Orvis F. Jordan (grandson)
from the share of William N. Jordan, (father) which
now goes to his children, and in our judgment the cir-
cuit court was right in that conclusion." So, in the
instant case where the testator originally left prop-
erty to his brothers, charging their shares with the
loans and advancements to their families, and later by
codicil giving the shares of these brothers to the sets
of heirs representing them it was, we believe, his in-
tention that the obligation to the testator of the mem-
bers constituting each set of heirs, were to be charged
against the share going to that set of heirs.
For the reasons given the decree of the circuit court
is hereby afl&rmed.
Decree aifirmed.
(Eleven pages in original opinion)
(2593—12)
bstract
(T
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^JL. i']' )^l\4>
Published in Abstract
Herman Stroops and Chas, M.' Peirce, Plaintiffs in
Error, v. Pavid P. Jq^ ste^d Forest Ackman, as
individuals and as Executor^ and Trustees of the
Last Will and Testament of George W. Jones,
deceased. Defendants in Error.
David P. Jones and Forest Ackman, Executors and
Trustees of the Last Will and Testament of
George W. Jones, deceased, Cross-Complainants
in Error, v. Herman Stroops, G. Edwin Jones and
Ura G. Jones, Cross-Defendants in Errr
Error to Circuit Court Schuyler County:
January Term, A. D. 1936.
Gen. No. 8929
Agenda No. 3
Mr. Justice Fulton delivered the opinion of the
Court.
On May 17th, 1934, Herman Stroops, Plaintiff in
Error, filed a suit in assumpsit in the Circuit Court
of Schuyler County against the Defendants in Error
David P. Jones and Forest E. Ackman, as individuals
and as Executors and Trustees of the Last Will and
Testament of George W. Jones, deceased, to recover
a legacy of $1500.00, bequeathed to Plaintiff in Error
in the Will of George W. Jones, deceased. There was
a clause in said Will providing as follows :
"I give and bequeath to my grandson Herman
Stroops the sum of Fifteen Hundred Dollars ($1,500)
which sum is to be held by my executors hereinafter
named, in trust for said Herman Stroops until he shall
arrive at the age of thirty years and said sum is to
be kept invested in good interest bearing securities
and the interest thereon paid to my said grandson, as
collected, the principal to be paid when he arrives at
the age of thirty years. ' '
In his complaint Plaintiff in Error charged a de-
mand for payment had been made upon the Executors
and their refusal to pay. The Defendants in Error
filed an answer admitting the provision for legacy and
alleging that on November 14th, 1929, the Plaintiff
in Error had duly assigned said legacy to G. Edwin
Jones and Ura G. Jones which assignment had been
filed for record with the Clerk of the County Court
of Schuyler County, wherein, the Administration of the
I. A. 60 2
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Page 2 Gen. No. 8929
George W. Jones Estate was pending and further alleg-
ing that the said G. Edwin Jones and Ura G. Jones
claimed all the moneys to become due and payable
under said legacy. Upon motion of Defendants in
Error they were permitted to file a Bill of Interpleader
providing they deposited with the Clerk of the Court
the money in controversy to be held until the final
determination of this suit.
The Bill of Interpleader was filed and certitied
checks in the amount of $1500.00 deposited with the
Clerk of the Circuit Court. G. Edwin Jones and Ura
G. Jones were made parties to this petition and they
filed their answer to the same, in which they set forth
the assignment of the legacy made by Plaintiff in
Error, to said G. Edmn Jones and Ura G. Jones. At
the same time, they filed a petition for change of venue
from the presiding Judge. Plaintiff in Error filed an
answer to the interpleader and a motion in the nature
of a demurrer to the answer of G. Ed^^in Jones and
Ura G. Jones. Also a motion for judgment against
the Defendants in Error in the sum of $1500.00 and
interest thereon. No action was taken by any Judge
on the application for change of venue, the demurrer
or motion for judgment. On September 24th, 1934, a
stipulation providing for the dismissal of the cause and
reciting that the cause of action was satisfied, signed
by Herman Stroops, G. Edwin Jones, Ura Jones, David
P. Jones and Forest Ackman, was filed in this Court
and an order entered by another presiding Judge, dis-
missing the suit upon the stipulation filed. On October
1st, 1934, Plaintiff in Error filed a motion to set aside
the stipulation and all orders entered by the Court
dismissing the suit but no action was taken upon said
motion. On the same day Chas. M. Peirce filed a mo-
tion to have fees fixed in his behalf as Attorney for
Plaintiff in Error, which motion was never acted upon
by the Court. On December 3rd, 1934, the same attor-
ney filed a petition asking to have attorney's lien estab-
lished and also an application for change of venue
against the presiding Judge. On January 7th, 1935,
Defendants in Error filed a petition asking for leave to
withdraw the certified checks theretofore deposited
with the Clerk and Chas. M. Peirce filed another peti-
tion to adjudicate attorney's lien. These two peti-
tions were consolidated, hearings had and evidence
introduced, before another Judge.
On February 5th, 1935, Plaintiff in Error filed a
motion to vacate the order of September 24th, 1934,
Page 3 Gen. No. 8929
which dismissed the suit. The said motion, together
with the two petitions consolidated as aforesaid, were
taken under advisement by the Court and judgment
orders entered on April 16th, 1935. The Court found
and ordered that Chas. M. Peirce have and recover
from Gr. Edmn Jones and Ura G. Jones the sum of
$250.00 as and for his attorney's fees and also that the
certified checks for $1500.00 remain in the hands of the
Clerk until the motion of February 5th, 1935 be deter-
mined. On the same day the Court overruled and
denied the motion of February 5th, 1935, to vacate the
order entered September 24th, 1934. On May 21st,
1935, the judgment entered April 16th, 1935, was
amended to provide that said judgment be a lien
against the funds paid the Clerk of this Court until
said judgment was paid. Appeal has been taken to
this Court from the judgment order of April 16th, 1935
and raising the propriety of the Court in dismissing
the suit on September 24th, 1934.
The Plaintiffs in Error first complain that Judge
Guy R. Williams was without authority to enter any
orders in the cause without an order for a statutory
change of venue having been made. The record does
not show that this question was in any manner pre-
served, but in any event no objection was made to the
presiding Judge who heard and determined the cause,
and even though no formal order was entered provid-
ing for a change of venue any Judge of that circuit
was fully authorized to hear and enter orders in the
case. There is no merit to the contention of the Plain-
tiffs in Error that Judge Williams had no right to
assume jurisdiction in this cause. Counsel for Plain-
tiffs in Error devotes most of his brief in urging that
the legacy to Herman Stroops constituted a Spend-
thrift Trust and that the assignment of such legacy
made by Herman Stroops to G. Edwin Jones and Ura
G. Jones prior to his arriving at the age of thirty
years was void and of no force and effect, but this
question does not seem to be an issue in the cause.
This is not a bill to construe a will and no order en-
tered by the Court passed upon this question. The
suit was dismissed by Judge A. Clay Williams on
September 24th, 1934 upon a written stipulation, signed
by the Plaintiff in Error, Stroops and the other par-
ties to the cause. Hence, the question argued by coun-
sel for Plaintiffs in Error with reference to the validity
of the assignment are not in any way involved in this
appeal.
Page 4 Gen. No. 8929
It was further contended by Plaintiffs in Error that
the Court erred in not granting the motion entered
February 5th, 1935, in which it was sought to vacate
the order of dismissal under date of September 24th,
1934. In support of this motion Plaintiffs in Error
attached an affidavit of Herman Stroops setting forth
that he did not authorize any person to dismiss said
cause; that the dismissal was entered without the
knowledge or consent of his counsel; that if anything
was signed by him used for purpose of having said
cause dismissed, the same was obtained without his
knowledge or consent and that any such document was
obtained from him by false representations and any
acts thereunder were not authorized by him, etc. There
was filed by the Executors an answer setting forth
the agreement signed by Herman Stroops and acknowl-
edged by him before a Notary Public on September
22nd, 1934. The motion and affidavit of Plaintiffs in
Error and the answer of the Executors constituted the
pleadings for a hearing on said motion. Testimony
was taken in behalf of all the parties and it became
necessary for the Court to determine a question of
fact as to Avhether or not the cause set up in said
motion and affidavit w^ere true. The Court found ad-
versely to Plaintitf s in Error but the transcript of such
testimony has not been preserved nor included in the
report of trial proceedings. There is nothing now be-
fore this Court upon which it could determine the
question of whether or not the Court correctly denied
the motion of Plaintiffs in Error. If Plaintiffs in
Error desired to have the question passed ujdou by
this Court it was necessary to include in the report
of trial proceedings a transcript of the evidence. A
client has a right to dismiss a suit without the knowl-
edge or consent of his attorney in the absence of any
assignment to the attorney of an interest in the suit;
and such dismissal cannot be set aside, in absence of
proof that the Clients consent to it was fraudulently
obtained. Cameron et al v. Boeger, et al 200 111. 84.
It is apparent that the questions which Plaintiffs in
Error argues in chief are questions of fact upon which
no testimony is presented to this Court and questions
of law which were not issues in any of the orders of
the Court appealed from and therefore no grounds
upon which this Court could order a reversal.
Plaintiffs in Error have overlooked or disregarded
Rule 9 of this Court, as amended, which is identical
Page 5 Gen. No. 8929
with Rule 39 of the Supreme Court, as amended, pro-
viding for the preparation and arrangement of briefs,
which rule reads as follows:
"The concluding subdivision of the statement of the
case should be a brief statement of the errors or cross
errors relied upon for a reversal or of the cross errors
submitted by an Appellee not prosecuting a cross
appeal."
The present rules governing the assignment of errors
have merely changed the place where the same shall
be set out. Instead of being attached to the record
and printed in the abstract, such errors as are relied
upon for reversal by the Appellant are now to be set
out at the conclusion of Appellants statement of the
case, in his brief. Farmers State Bank v. Meyers, 282
App. 549. Plaintiffs in Error have also disregarded
the instructions of Rule 9 providing for the arrange-
ment of the brief. In substance that rule provides that
the brief of Appellant shall contain a short and clear
statement of the case showing the nature of the ac-
tion, the nature of the pleading sufiSciently to show
what the issues were and the questions subject to re-
view arising on the pleadings; in cases depending
upon the evidence the leading facts which the evidence
prove or tended to prove, how the issues were decided
upon the trial and what the judgment or decree was.
Then a statement of the errors relied upon for reversal.
The statement of the case shall be followed by the
propositions of law and the authorities relied upon
to support them. The brief may be followed by argu-
ments in support thereof. Plaintiffs in Error have en-
tirely disregarded this rule in the preparation of their
briefs but there being no motion to strike nor to dis-
miss appeal we have considered the case upon its
merits.
The judgment of the trial Court is affirmed.
Affirmed.
(Six pages in original opinion.)
^6*.
(9^7^-v^-o— %^-^^ ■■''-^- ^ 1 -^ i^^
Published in Abstkact
Paiil J. Melahn, Appellant, v. Chafles
Appellee. '~\
V.'
Appeal from. Circuit Court, Champaign County.
o
Januaby Teem, A. D. 1936. ^OOlA GO'W
Gen. No. 8951 Agenda No. 9
Mr. Justice Fulton delivered the opinion of the
Court.
Around 1 :30 A. M. on the morning of August 15th,
1934, Appellant, Paul J. Melahn, was driving alone,
North on State Route 25, in a Chevrolet four door pas-
senger car, south of Tolono in Champaign County. At
the same time Charles Mayhew, Appellee, and his six-
teen year old daughter, Martha, were driving south
on this same highway in a V-8 Ford truck with the
regulation Ford body. A collision occurred wherein
Appellant lost his left arm between the elbow and
shoulder; his car was badly damaged and turned up-
side down off the west side of the pavement.
A suit for damages was filed by Appellant in the
Circuit Court of Champaign County. The complaint
consisted of two counts, the first count charging gener-
al negligence on the part of Appellee and the second
count charging a violation of Par. 2 of Sec. 161 of
Chap. 121 of the Eevised Statutes of Illinois in failing
to keep to the right of the center line of the paved por-
tion of the highway. The Appellee answered the com-
plaint, admitting all the averments of both counts, ex-
cept the charges of due care, negligence and the dam-
ages. The case was tried before a jury, who found the J
Appellee not guilty. A motion for new trial was over-
ruled and judgment entered upon the verdict of the
jury, from which judgment this appeal was prosecuted.
There is no serious controversy as to the main facts
but a vast difference in the conclusions arrived at by
counsel for the parties. There were only three wit-
nesses to the collision, the Appellant, the Appellee and
the Appellee's daughter. The Appellant testifies that
he was a resident of Champaign and on the 14th of
August, 1934, at about 1 :50 a. m. he was driving his car
north on Route 25, at a rate of from forty to forty-five
miles per hour; that the road was perfectly straight
at and about where the collision occurred ; that he was
Page 2 Gen. No. 8951
driving in his own lane on the highway and never ap-
proached closer to the black center line than a foot or
a foot and a half; that he saw the two headlights of
Appellees truck coming toward him from the north;
that from the position of the headlights he would say
that Appellees truck was on its own side of the pave-
ment ; that the first thing he noticed about the collision
was the crash and his car turned over; that at the
moment of the crash he was looking straight ahead of
him and thinks his car was struck about four or five
inches back of the front door ; that his car turned over
once on the pavement and rolled over again and was
facing south when it tonally stopped; that he lost his
arm in the accident ; that when he got out of his car he
looked south down the road and saw Appellee's truck
standing there ; that he walked down the highway and
yelled at the man in the truck asking him to get a rope
and tie up his arm before he bled to death; that Ap-
pellee flagged down an approaching vehicle which
picked up Appellant and took him to the Burnham
Hospital in Champaign. Appellant also testified that
both his hands and arm were inside the car at the time
of the collision, although both front windows to the
car were open.
The Appellee, corroborated by his daughter, testi-
fied that he lived at Mattoon and was engaged in the
general trucking business; that on the night in ques-
tion he saw Appellant's car coming from the south
about a thousand feet away; that as the Melahu car
came nearer he noticed that it was coming fast and
driving close to the black line in the center of the pave-
ment; that he pulled his truck to the west edge of the
highway so that the east side of the body of his truck
was at least two feet west of the black center line and
that this was the position of his car at the time of the
collision; that his truck was traveling between twenty
and twenty-five miles an hour at and prior to the time
of the collision and at the time of the collision and at
all times prior thereto was on the west side of the black
line of the pavement.
From the testimony of both parties it would appear
that at the time the front ends of the two cars passed
each other each was apparently on its own side of the
black line but that the crash occurred before the two
cars had completed passing each other. There is no
oral testimony explaining just how the collision oc-
curred. The Appellant introduced in evidence a photo-
graph showing the condition of his car after the acci-
Page 3 Gen. No. 8951
dent; He insists that from this photograph the physi-
cal facts conclusively show that the front corner of
the bed of Appellees truck gouged into the side of
Appellant's car at the left front door tearing off Ap-
pellant's arm and seriously damaging the rear end of
his car. An examination of the photograph discloses a
situation about which reasonable minds might disagree
as to just how the accident happened. Opposed to
these physical facts is the positive testimony of the
Appellee and his daughter that the truck in which they
were riding was at all times to the west of the center
black line of the highway.
The Appellant urges that the only issue in dispute
in this case is as to whether the Appellee negligently
permitted his eight foot wide truck to go over the black
line and to gouge into Appellant's car, and because of
the physical facts, shown in the photograph in evi-
dence, the verdict of the jury was contrary to the mani-
fest weight of the evidence.
In our view of the case there were facts in evidence
as above shown upon which there could be an honest
difference of opinion, and where the evidence is con-
flicting it is the sole and exclusive privilege of the jury
to determine those facts and the verdict of the jury will
not be set aside by a Court unless it is clearly and
manifestly against the weight of the evidence.
Mugaviro, Admr. v. C. B. d Q. R. R. Co., 239 App. 544.
If the evidence of the successful party, when consid-
ered by itself, is sufficient to sustain the verdict a
Court will not set aside the judgment unless it is satis-
fied that it is manifestly against the weight of the evi-
dence. Grosch v. Mendota National Bank, 239 App.
515. In this case we do not feel warranted in disturb-
ing the finding of the jury on this question of fact.
The Appellant further complains that it was error
for the Court to permit the Appellee and his witnesses
to testify to what the Appellee did and said after he
had left the scene of the accident. This testimony was
admitted to meet the inferences contained in the Ap-
pellant's evidence that the Appellee was trying to run
away from the scene of the collision. In criminal
cases it has always been the law of Illinois that while
the flight of the defendant from the scene of the crime,
if unexplained, may be shown by the People as a cir-
cumstance tending to prove guilt, and defendant
should be permitted to show any circumstances tending
to explain or excuse his flight. People v. Rappaport
362 111. 462. Ordinarily, in civil cases it is not proper
Page 4 Gen. No. 8951
to admit any self-serving acts or statements occurring
after the collision except such, as are part of the res
gestae and it is possible in this case more evidence
than was necessary to meet the inferences of Appel-
lant was permitted, still the testimony could not be
construed to be so prejudical as to warrant a reversal
of this case.
Appellant also insists that the Court permitted the
counsel for Appellee, on cross-examination, to ask
questions tending to degrade the Appellant and preju-
dicial in character. On his direct examination. Appel-
lant had testified that for eight or nine years he had
been in the book making business up until about four
months before the trial and that at the time of the trial
he was not doing anj'thing. Because of the inference
to be derived from this testimony that Appellant had
not been able to attend to his business because of the
loss of his arm in the collision Appellee cross exam-
ined, at first without objection, on the Appellant's
connection with the book making business, and sought
to show that Appellant's place of business had been
closed by the authorities of the City of Champaign as
a gambling establishment. Upon the sustaining of an
objection to this line of testimony the counsel for Ap-
pellee asked two more questions as follows :
' ' Q. You knew about them notifying them to quit ? ' '
"Q. Didn't the city forbid you to start business
there again!"
The Court sustained objections to both of these
questions. Again in cross-examination the counsel
for Appellee asked the following question :
"Q. You did have a bottle of alcohol in that car,
at the time of the collision or a bottle of liquor!"
The Court sustained objection to this question and
immediately thereafter counsel asked the following:
"Q. There was a bottle of liquor in your ear that
was only partially filled with intoxicating liquor at
the time that this collision occurred, was there not!"
The Appellee defended his position in asking the first
two questions on the ground that it was revelant and
proper to go into the fact that the occupation of Ap-
pellant was unlawful and in light of all of the examin-
ation of the Appellant we do not consider the questions
asked as to be so prejudicial as to be substantial error.
On direct examination Appellant had been asked by
his counsel as to whether or not he had any intoxicat-
ing liquor to drink on the night in question befoi'e leav-
ing Mattoon and under those circumstances it was
■:->'±
Page 5 Gen. No. 8951
proper for the Appellee to cross-examine the witness
as to any information concerning the good faith of
Appellant's testimony.
Upon the trial there were a large number of wit-
nesses called to testify as to incidental facts concerning
the condition of and the markings on the cars, the in-
juries of the Appellant and other matters not seriously
in controversy but on the whole we believe both Appel-
lant and the Appellee were given a fair trial by the
Court and the jury. There appearing to be no sub-
stantial error in the record the judgment of the trial
Court is affirmed.
Affirmed.
(Six pages in original opinion)
■"ii??. I'iZ-M-'Ki
)
A
:iTATF; OF ILLINOIS,
appellate: court,
fourth district.
I^/NA;^ Vio \U
Arthur F. IicClc..in,
Appellant,
vo .
Brotherhood of Railroc-.d
Trainmen,
Appellee.
Agenda 4.
February Term, 19;56.
AppeB.l from City Court of
East St. Louis.
28 5I.A. 602
..I...ARD3, P. J.
n December 28, 1932, appellant was a member of the Brotherhood of
Railroad Trointnen and affiliated '^ith Dupo Lodge Ho. 378» He at the time
v/as the holder of a Class G benefit cartificate for %\^^1^, On the afore-
said date he surr mdersd the certificate for cancellation and requ juted
that a certificate of Class A, in the sxoin of §700, be issued to him, -:.nd
Buch certificate was thereafter, oxi April 14, 1933, issued and delivered to
him. In the meantime, on 'January 31, 1933, he, ^hile employed in the
railv.'ay service, was injured ssverely and confined in the hos:;ital for a
iono, p- rlod. In April, 1933, he submitted to the Order his p tit ion for the
allowance of a eu'^volent cic.ia. The local loage approved the c laim, ■• hich
was then confjioered ana rejected by the Gr:..nd Lodge, and a:^ -ellant was so
advised by letter of sach action, which occcirred on July 6, 1933.
S.^ction 131 of the constiturion j-:nd laws of the Brotherhood prjvided
that whin a laember in good stcJiding became nick or disabled and had a claim
pending for total and p .raanent disability, or a benevolent claim, that the
local lodge should pay his dues until th • claim had been pas.sed upon, pro-
ib-
-2-
vided he made a written request therefor. It appears that appellant did not
so request; hovever, the local lodge, a-^parently of its ovn motion, did pay
such dues up until and including August 1, 1933.
The treasurer of the local lodge v-rote appellant on August 30,
1933, that hie claim hod hcen disallov-ed and that the lodge was not obliged
to pay hi« dues aft^r Au^^st 1; iloo, that if he did not pay his September
dues he vouid be expelled, and suggesting that hs transfer to the Individua.
Reserve Department, an instirance branch of the Order, calling attention to
such benefits as the ^'^riter was of opinion that appellant ';^ould thereby
derive..
The latter received the letter on the same day, and at once re-
plied, stating that he was aware of the rejection of his claim, but contended
that it was to be reconsidered, and in effect declining to accept the propo-
Gition suggested. On September 4, 1933, the treasurer again ^srote appellant,
saying that if he did not act upon the proposition he would be ex,;elled, and
the latter responded on September 9, 1933, and again refused to pay the Sep-
tember dues- He then, on September 12, 1933, v^rote a letter of inquiry to
the treasurer asking what action the lodge had taken, which was answered by
the latter* a letter of September 16, 1933, advising appellant that he had
been expelled, and that ho was then indebted to the local lodge in the sum
of $53.60.
Appellant thereupon brought suit and the cause was heard before
a jury. At the close of all the evidence appellee moved for a directed
verdict, the court reserved ruling thereon iinder Section G8 of the Civil
Practice Act, and the jury found for appellant in the arjount of .^1,500.
Appellee moved for jad}<ment notwithstanding the verdict; the court sustained
the motion, entered judgment for appelLce, and this ap eal is prosecuted
from such order.
The only question argued by either side is whether the local lodge
rightfully expelled appellant.
-3-
Section 131 of the genf3ral rules of the Brotherhood provided that if
a member in fCood standing became sick or disabled, the local lodge should
pay his dues for such time as the lodge should determine, provided such
lECTiber notified the treasxirer of his lodt^e in writing of such fact, and in
case of total and permanent disability, or of claims addressed to the benevo-
lence of the Order, if the member Liade claim therefor, the lodge should pay
his dues "until his claim has been passed on by the General Secretpjry and
Treasurer, but not afterwards."
Section 129 was to the effect that membsrship dues should be paid
monthly in advance before the first day of each month.
Expulsion of members was provided for in Section 141, as follot-s:
"Any member of this lodge failing or refusing to pay his dues end assess-
laents, as required by Section 129, b3Comes expelled without any notice or
fiirther action v/hatsoever ****». ^ And it further reads: "If a lodge
advances a member nion-:y for the payment of dues he ohall be required to re-
pay the same within the time set by the lodge for such -ayment, or shall
become expelled as for noa-piyment of dues. The minutes of the lodge should
show the time sat for the repayment of the money so advanced for this pur-
pose."
That the terms of this section, providing that a member falling to
pay hin dues shall be expelled without any notice th< reof, is a reasonable
and valid rej'-ulation, has been held in The People ex rel. v. Board of Trade,
224 111., 370; Champion v. Hannahan, 138 111. App., 387.
By the terms of r.aid Section 131 the local lodge was only authorized
to pay the dues of appellant until his claim was disallowed on July 6; hence
when it advanced the requisite aiiount for hin on August 1 it was exceeding
its authority. He was notified of the Grand Lodge's action rejecting his
claim, and was charged with knovTledge that the general rules required that
thereafter he pay his dues or be subject to expulsion. It was not neces iary
-A-
that the local lodge notify him that it vrould no longer make advancements
ifor him, as it (the local lodge) was witho..t authority to so act after re-
iceiving notice of the rejection of his claim.
Appellant contends that it was incumbent upon the loca^ lodye to
fix a time in x^hich a peilant should repay the amoiints vrhich it had advanced
for him, before declaring him expelled- If the expulsion ho.d been for ouch
reason, the contention vrould be sound, but it is obvious that he was ex-
polled for failure to pay hi a dues September 1, as the rules required him to
do, after the rejection of his claim, of v;hich he was aware, and not bcjcause
he did not repay the amount of the dues T?hioh the lodge had advanced for him.
Section 141 provided for tv-o grounds of expulsion; onj, failure to
pay dues, ajid the other failure to repay dues advanced, within the time
fixed by the local lodge for such repayment. The local lodge did not attempt
to collect rhat it had .-advanced for ai'^ell;nt, nor ask for its repayment;
it did notify hira to pp,y his September dues, as the rules obligated him to
do, or he rould be expelled. His claim had b en rejected; the lodge coxild
not longer advance hiu dues, and if he wished to remain in the Order there-
after it was incumbent upon him to pay the required dues. He failed to do
so, and in conformity Trith the constitution and >nle8 of the Brotherhood
iras expelled, "^he local lodge was right in its act of expulsion.
We think the judgment iy justified by the record, and it will be
B-ffirmed,
Judgment affirmed.
STATL OF ILitl^OIS /
APPEILATL CUULT
FOURTH DISTRICT
Term Jo. il
THE W. Q. O'liEALL COMPA.^T,
a Coi-poration,
Plaintiff aud Appellee,
Ta<
COMinSSIOHi-R OF HIGHWAYS,
TOnli OF jiBMiai^G, FRAi^KLIN
COliiiTY, ILLIrlOIS,
Defendant and Appellant.
Agenda ..'o. 12
28 5 T 4. ^0 2"^
APPEi'iL FLQfti THE
CIKCJIT CUUKT OF
FHALfiaill GCUIITY,
ILLI.oIS.
Murphy, J;
In April, 19M, plai .tiff-appellee instituted
itsau.it ageinat tiie defendant-eppellant to recover on a tfc:>.
warrant issued bi/ the cofaiaissioner of hi£^hvjays of the Town of
Denning, Franjclin Couiity.
The first aiaended eoKjplaint upon which issue
was 4t»ineu alleged thc-.t the defendant did on October 2o, 19i>l, issue
and deliver to plaintiff an interest bearing tax w? .i ra^it lor ^256. u5;
that it v.f;s issued in ps^/uient of e-m. original oruei' for uiateiial for
maintenance of the hif'hvva^. s oi sr id towiiSiup; that sfiu ij^teiial
was piu*chased oi; the v.riuteu order of tae highwi y conL-issioner of
the township and viih the vritten eo/istnt of the eoonty superinteiideni.
of highways of Franklin Comity; thtt said m* terial was delivered to
and accepted by the highvvr.^/ eoiaraisaiOiier oi si iu tov.nsliip huu asea
in txxe iainteiiance of its roaus; thi^t the original warrant hbd been
lost and plfciii-i^itf v^^as onable to f .ruish copy oi the st.iue and t^reyea
for judgment for the aiaount of the v.frrant with interest. The
aiaended cutupljiint v;as sworn to and defendput filea a veiifieu answer.
The cause Wi.s tried before the cooi-t wiLhout a jury.
Term i^o. 11 Agenda Jo. 12
The facts ts sxiovra by the evidence »-.re tLat on
liareh Zo, 19H^, defendant purciiased irorn plain oil t oertalu road
materials at a total cost price of ^4»5.80; that a tax warrant was
issued for the lull amuvuit. On Jeptember lo, 19;5u, deieiiUant paid
fi2U0,0U on the warrant j nd another warrant wt s issuea for ti.e uptia
balance. Thia latter warrant wes taken up on October ai, l^iil, by
the issuance of the v,i..rrant declared upon in this su.it. ihe aiaount
of tiie warrant wj-S ^265.05, being the unpaid bfclaiice plus accumulated
interest.
At the conclusion of the eviutjuce anil bei.re
the case wi s subjaitted on oral argument, plaintiff filed its second
amended complaint iii V;hich it wta alleged that on .^rch :.o, IViiy,
plaintiff sold enu delivered to the defendant at his insta ce and
recuest certain goods and iaerchandise of a reasonable value of
$4S5»80, that |l200.00 hsd 'biif:in paid r.nd prayed for jud^ent for
|2^5.80» Defendant answered denying the purchase of the .lerohKudise,
alleging payment and pleaded that the cause of action aliened in the
second amended coajplaint was a different cause of action than the
one declaied upon in the first aiaeiided eojapli^int and ws^s txierefoi-e
barred Isy the five /ear statute uf li.'aitution t^s it applies to opt:,
accounts. Plaintiff did not o^iend its second amended ooiaplaint and
made no reply to aeferidjnt's lijaitation defeiise. i<o further evidence
was introduced ^.fter the lilia^:; of t^ie second a.ifc^ided ooiapleint.
Jud^ent ftfes e^itered for plainuiff for ;^225«80 for goods, wares
and aerchmidxse sold.
The second a.aended coupl^int fileu October 11,
19;i6, alleged the ^aercliandise was purchased on open account .arch 'd'^,
li»29, tiie.t there wtu e pi j-mani, of ,^200. Ou, the di^Le oi v.uich is not
Stated in tiie pleading, -^he eviueiice introd crd under ilifc first
aiaended ooiapleint showed the payment to have been iat.de September lU,
-S-
Tern ilo. 11 Agendfc Ho. 12
19i>0. On the face of the secjud ejne.ided co.'uplaint fcnd b^ the
evidence, the cause of fcctiou aeclared up u wis barred by limitation.
Plaintiff contends that u ider Paragraph Cne,
Section 4o of the oivil Practise «iCt, 111. Staoe hi^r Stats., iy.5ii,
it had the ri^jht to aaend its pleadings an^ tiae before final judg-
ment, changing the cause of j?ccion or acding ew causes ol action
for which it intended to recover. Paragraph Two ol seic "tctiou 46,
deals with the emendment of pie? dings where the etatatt of limita-
tions has been pleaded as a bi.r to the ca tse of &c^ion alleged in
the aiaeaded plerding, as in this caae. It is therein provided that
the cause of action bet up in arxy amended pleading shall not be
barred by lapse of tiiae, under any statute limiting the xiiae within
which such action mi^rht be brought if such tiiae had not expired
when the original pleading was Ziied; if it appears from the original
and ataended pleadings that the cause of action asserteu in the
amended pleading greis out of the strae trans; ct ion or occurence set
up in the original pleading, then, if such is shown, in order to
preserve the cause of action stated in the r'aended pleading, end
for siich purpose only, the eiaeiidmeut sl:iell be held to rtlaue back
to the date of the filing ol the original pleading.
There is .lo allegation oi fact in either the
first or second ataended eomplRints that in any w^y iaentifies th«
issuance of the warraat on <..ot^\>eT 2o, iyi>l, v-ith ohe sile of the
goods on larch £.i, 192.>, as eiising out of the Si^ae tra^.s ctxon or
occurence. It is "crue the eviuence buowb vha warrant was a renewal
of a series of wairants rxinning back to the warrant issueu lor the
merchandise sold -uareh 2^, 192y. Whetaei s .ch ficts, if properly
pleaded, would be sufficient o^ be consiaereu as arising out of the
saiue transaction or occurence, we do not decide, lor ikhe statute
provides that such facts shall be shown by the original anu aiaeuced
pleadings.
-3-
Term .,o. 11 A|{enua ..o. 12
Since the original and amended plettdings do
not allege facts siiowing the causes of action aeclareu u jun in th«
second aiue::ided eo.aplaint to hrve arisen out of the 8» me traiiStiCtion
or^ccae^ice t;S the caase of .--ction st&tea xii the first a;aended
complaint, it caiuiot be held that the Ci use ui ic^ion stated in the
second amended complaint rel&tes btck to the date of the filing of
the first amended cociplj-int. ihe ce tse uf uctioii stated in the
second iuiienatu complsint Wc s barred b^ tht five jftar itatute of
liraitetion Eiid it is jiot necessary to consider other tirors easifiicd.
Judgment of the lov-tr court is reversed.
Judgment reversed.
vAAA
-4-
eiATF CF ILIINCIS
FC'URTh tILTRiLT ^
APPI=LLATF CCURT /
FF^X'ARY TIRfc', A. l/,/^'iZ(>
U
T?VM V.Q. IC f ACFNEAfNO. 11
r;FI.BA KRFITKFR, )
rialr:t5ff — Appellee, ) Ap-.e^l from the
) City Court of the
vs. ) City of Fgst rt. lo'jlr,
) St. Clf.ir County,
virrvrr.. ■ . KRFITRER, ) Illinois.
Defendant — Appe 1 1 ant . )
28 5I.A. 602
r
£TCKK, J:
Plaintiff -eppellee fUec her comrlttltt for divorce
a* eintt cefer.dant-aprellar.t to the January TerT. of the City
Court of Fsrt i-t. I.ouis, Illiriois, on the t4th day of l-ebrujry,
A. r, 1953, chsrging cef nd«nt-aprellsrt with cytrerr.e and
repef*ted crurlty, snc prayed for the csre, custocy eni} control
of their chiloien, Dorothy Jfannft -^rritner, tren of the a^e
of 16, end Charles C. PCreitner, then cf the at.e of 14 ye:rs
(Record T;>-g, 1-3). referdfnt-&p' ellsnt 1 Uec his entiy of
appearance and anr^;er denying the charges of crurlty contained
In the. b!ll cf coml&lnt Cecordpr>. ^-5). He'rlng v.sr had
on b511 snd snet-er -.nc the Court decreed a divorce to the
comt?lainant-apr.ellee, and gave the care» cuftody, control
and education cf the esid children to the coaFlainant-appellee,
as had been previously ;-{,r ec to between the p-rties. The
Court further found that the property fettl?rrent t-eretofore
made betpfcen the pMtiee woe -'utt end equitable, and conflrriied,
ratified and apprcved the sane snd found and decreed tnat
eaid Fettletnent -^r-.z in f lil 1 of all i-llmony rlfhts snd support
of the coni'-l ainant-eppellee.
r
The Ccurt further decreed thot the defend .nt-
appellant p5ty tc the ccmplg ir^ant-Bprellee for the £uj-;ort
of rfi5(? children an arrourt "connriensurate vvith tit earning
sblTlty raid Ms financial cere I lion" (Re core ;:p. 6-y).
On »;ay 16, 1955, u-on petition of conc^lairejit-
appellee, the Court modified the ori£'n&l decree ce fcllci'.E':
"That the defend nt, Ku^fne '.'.. hLreltner, pey to
the plaintiff, relb'a Kreltner, the su,t, of HOC. CO per
rronth, tbe firrt payment to be fi.rde on the let dey of
June, 1&75, end s^id payments to be made each month
thereaftfr until th^ further order of this Court,
said sum to be for the torport '=:rjd r.a^rteniince of the
T\;C CHIirRrK of the pgrtleg. (^ecord p. 10).
The modified decree, by eirfenifnt of parties,
was refiled ?£ of the 3rd day of Sert^mber, 1&25 (Record
pp. 17-18, minutes of Ccurt), ond uron such r<jf:lin£; cefen-
d-^nt-appellar,t f?led his notice of anpesl prayinf fcr rever-
sal of the modified decree ^r.o for reason of such levertal
sets forth thet ^orot^-y Jeenne Kreitner, one of the children
of Snid p5irt5ee, ves an ?cu3t et tre tiire the nocified
decree was entered; that cef endant-appeliant is not liable
for her support, snd further asking for e reversal on account
of the' Indefinite order containeci in the :?odified decree fiS
to the arr:ount of tl-e allowance of Charles G. Kreitner, the
minor child of the p'rties (F.ecord p. 11).
It v-^.s st i'^'.ilater by t'-e parties that Dorothy
Kreltrer vr-s of the ar.e of 18 years on the 11th dsy of June,
A. D. Iy34, and is rr;entally and physicslly sound snd healthy,
is well educated, and is f stenof;repnrr by profession, but
not regularly erriployed, and thnt Charles wes of the aje of
16 on the 29th d-y cf February, A. L. 1935, and is now attend-
int; his third ycftr in hi^h school and is stron£, healthy
and mentally sound (Record p. J;?).
Appell'snt h?E appealed to f-is Court and bae
assigned the follorirL errors:
c
Q
-3-
3. The Court errec in compel] Infc ecferidant-appell nt to p'iy
for tbe eu-port, ral rtf'iv^nce -rr.O educst^cr cf hie ac3ult child,
2. The Court eiTPO in fail Inf. to fix vJth C'eUniter.sse aru
certainty the an.ourt the cefctc nt-apreiiant should pay for
the su'-^ort, rnaintenarce and fiducstior cf his rr.inor ell Id,
'. The Dioclified dPcree is cor;ti-?ry to lew.
A. The noc'iflei' cecrer i£ cortr ry to t-e f.-ct£ eti"ulflted
betiTeei; tl-e p;-'rti«£.
Appell'-.it hsj not co,."15eo ?ith the :r.'clce act
lecause he h.ie net reservee t\ C: precede ir.t: or, tr.c trial,
KoTR'Cver, the rtipulation cf the pe,rtie£ presrents c -.ueffon
on thf record a;; it 'e ivrich the court shcdc ccnsider.
The raodiiiec decree provicas anc crders a-pellenl
to ^ay for t.hc eun ort cf his child vvi. ich hae reached htr
majority aijc accordir.i,, to the stipulstion 'i£ capble in all
v'.ys of rupcrting hprrelf. Tbir:- the Court coclu not 'i j.::-
fnlly do. r-eyle-E v. Lhrjftie lc7 111, A2C; 46 Corpuf w'uris
1263; ;;ercer v. HoEir.bf^rry c.Z 111, s; p. 6£3. Tnis cc-ie if
not liu.e Frcest^itP v. ireertja© 2.A^ 111. /.pp. 16C. There the
daughtjer 5.n quettion wss an invalid sno tne Court helC thst
upon a ^iroT>f'r sbowir.g the Couit ■■uht con;pel i.n IncrssEed
mriini ^ni^.nce. The n;odif5ed c'ecree rrquire? appe'ilant to pay
tlOC.CG per wonth for tre sup-ort snC naintenance of the t-'O
children of the parties. Cne of there children is un adult
arc' tne court under her cii-cun Etsncee cculO net compel appell-
ant to s.:p ort her. Prrt of tne .:o-."if icbtlcn beint withobt
the power of the Cert, it leaves indefinite end uncertcin
how nucn appeliant ehculd ray for the support -f the other
child which is a minor. Th " f condition vorKs an Injustice
to arpellp.nt who cannot t«^n hor n.uch ne if lawfully bound
to pay and en injurtice to the minor child whc ct-nn^t tell
how r^uch he is to have. This condition should not obtain
but should be rr.edc definite end certain.
c
"^
Thp mocjfipa decree \n zg frr as 5t relates to tne
payment of s' ort nonej' is revfreed aiiC rcmandec' to the City
Court of F-ist St. Lcuir, w'th cMrectlon to take further pro-
ceedii-L; In the cauee In harriiony with the views herein expressed.
" TTH nrJFCTICN.'^ .
Akj^Ti 1^ WU^ ^ f ^'
■c
c
IN THE
APPELLATE COURT
OF THE
3TATE OF ILLIl!0I3
Fourth District
C>vU/\
Va^ \x
FRANK 0. TOOMBS, an individ-
ual doing businer^B under the
finri name and Btyle of Frank
C, Toombs & Company,
V8.
JAWES LEWIS,
Appellee
Appellant.
aJiUa Uo 1^
A8s\iinp8it
Appeal from the
Circuit Ooiirt of
Lawrence County,
28 5I.A. 603
Stone, J,
This cause came before ub on a former hearing and our
decision therein apperrB in T00MB3 v. LKWI3, 277 111. App.
84, We there reversed the jud^ent of the trial court
without remanding, v^Jon the theory that the conduct of the
plaintiff gave the defendant the right to treat the trans-
ection as a bargain and sale, and that the plaintiff had not
shown the necesspry freedom from negligence and good faith
to enable hira to recover on the theory of mutual mistake.
On appeTil from that judgment the Supreme Court of Illinois
held that the conduct of the plaintiff did not ae a matter
of fact or law change the relation of principal and agent
to that of seller and buy-^r. The court held that there rs^ 8
evidence from which the jury could find thst the plaintiff was
the defendrmt' 8 agent and thr t there wus evidence from which
the jury could find that the plaintiff had raeintained hie
cause of action. The judgment of this court wr-c r^vTsed
and the ojiuse remanded with dir*-'ctions to consider other
errors.
Our attention is called to a statement of the plain-
tiff, on cross examination thi^t he had as.signed hlp cause
of action, llo further detail concerning the time or
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.8V
1UO bn.6 sxTiT3'*ri I'^ffliol: b no bjj eioletf eniflo dsirao sld't
.qqA .III 7VS ,EIWSJ ,v BSMOOT ni Btn^qqa nl9T9rf;t nolBJtosb
9d* 1:o ifpybnoo -BrtJ &sdi ynoerli' ©rfjl- nccpj .snlbnaraei iuod&tn
-arrs'icf ?^fl;t */?'^iJ o* ^rijsii srft ^nabnolob eri* ^vag "itli^atalq
Jon bi?ri 'ttiJniBlq eri^t tsAi br.ji ^'ilss has nliij^iBCf b bb aoiiOB
rfJifii boo^ bnjB sqnoslXaoxi moT'^ mobo'^Tl: ytsasso^n sri:^ nworie
aionilXI lo jTX/oO ata'iiquB ^rf.i Jn'JtirrvbiJf, tnrfd' ffloil Ip.oqqa nO
a'=»t^im B I3.S ^on btb 'tltitatalq 9rfJ !to ;tOi/bnoo "^rij *£rl* bX»rf
(tnejitt bna Xaqionliq Jo aotisi'ii fidt •>8n8rfo wi?X to ;tOf5> ^o
e.w 'it'^il* *Bri;r bXeri .+ix/oo erfT .isxi/cf bna i^IX'is lo isdi o;t
8 3^ T-ti^tfjljsXq ^rf^r iadt bnt\ bluoo yiifQ ori* ffoirfw saoit eonsbivs
rioirt-9 Biot^ 'bon^bt^rt saw ox«>rf;t ;fnrf;t boa in^-gB a'^flflbn-^lob sri*
aid banls^nism barf lli^nlaXq eri^f Jsrf* bnil bXwoo xtut 9dt
0931 •^v'*'! apw ttuoo Bidt ^o tnsfJisbifj; sriT ^aoiSoa \o eauBO
'f-'itr, ■I'iP/anoo ot anoi^o-^Tlb rf^Jtw bobnara'Ji e b jjt, n «d* bflB
'^^t^^• Rir' C9n?vl' nol^fimlfflsxft aeoao no ,m*
nennor of the auppoped aef^lgnment Ib given. It do. p not
appear tbnt this ma*ter was urged in the trial court. We
are of the opinion thrt the matter was waived.
If there wBB in fact an asriignnient ?..hich occurred
after the commencement of proceedings in this suit, th*"-),
if justice I'PQuirep, any action neoesBnry may he taken
under Section 64 of the Civil Practice Act. (Cahill, Illi-
nois "tale E?r ApRociation Statute-' (1935), Chapter 110,
Paragraph 132.) In sny event, as this cause must b^ re-
versed for other ret; sons a°Bigned herein, wf" thinV thrt
the dispoGition of this matter, and the sdmispion of evidence
with respect thereto, at this stage of the proceedings, are
best left to the sound discretion of the trial court.
Appellee contends that the court erred in giving an
inatructicn which allowed the plaintiff to recover if the
evidence prf^pondernted "although hxit slightly" in hie
favor. This instruction wr e spproved by the earlier de-
cisions of our cairts: HANCHT^TT v. HAA3, 219 111, 546, on
page 548; OHIGAUO CITY RY. v. BUNDY, 310 111, 39, on 48;
DONLEY V, DAIJGH^:RTY, 174 111. 582, More recently it has
been ^ev^rely criticized: MaLLOY v. OHIO/GO RAPID TRAK13IT
GO,, 3:^5 111. 164; BimOH v, ABBOTT, 256 111. App. 3-?. In
both of tThe latter nases th<=re ?vf=re other and more n^^^rious
errors requiring rf^vfrsal. The instrnction is also in-
correct in authorizing a recovery if the plsintiff proves
his case by a prt^ponderance of the evidence, without con-
fining the plaintiff's case to the declaration. MALLOY
V. CHICAGO RAPID ':"PANSIT CO., 335 111. 164, onl71. The
error is no doubt lees sTious in a case where, as here,
the declare tion is upon the common counts. While the
instruction taken as a whole is irriproper, ?3nd should not
have been givf^n, it is not necessarj' for us to hold
whether standing alone it would have const itutud reversible
error,
A further error is urged in the giving of plglntiff's
given instructions I, II, and IV. Each of these instruc-
ton '^''ot) 11 .n'^vt-g Pi tn^am^tsBa b^^oqqxre 'idi lo I'^anRm
b-^tairooo iloilf *n^rei.,. .: ^ _ . nt bhvi ^^T^ri^i^ !tl
-iill ,IIl.ff5',r' .toA 90iJosi«l f JtviO Sri*- ^^ : to^S T'ibnu
■HTB '^j4ii^^-- ^f** Ic e^f'^a sill? ^s, ^o^'^T'iffJ- j^o?»q80-i riJJtw
,*iCfco Lslii erft ^c ftoi.t'^ao8ib bai/os ^^di oi it + ol ;|-89rf
OB gnivlg ni b'^iie (tiuoo ftrf* indi Bbn«»;tnoo -^"^iXsqgA
•srf* 11 T^veoST o* ^1:i^fii5lt| wf?- bosroIl«- rfoldw nsi^xnttni
no ,a*^^i ♦III eiS ,fiAAit ,t TTSHOKaH ?8.tXiK>o t^o to anoisio
;8I^ no ,9£ .III 01^ ,,lfaiUS .v .YR yTIJ> OUACIHO ;8-^d dgosq
»i?ri It ^IJn&o«>T ©ton • .sea .1/1 -^Vi ,YT>lgH£!UAa .V YgJJttXl
Tieft/iHT ai*lA« eiQdCIHD ^v YO^JaM :b3Sioiirig:o ^"^T^VMB^irt^d
siw^elT^e »:T02Pt hna isdif^^i'^T^w '•♦U'^raf 8»Bi30 xfiiip.1 '^Ai lo tt'^od
3*,voiq tlis-^nlaicr «rf;t 11 ^rf^voo^^ jb ^jnlsisoilli/jB-nl ^o^iloo
-froo iisoA^iif .♦on^blv^ oiJit 'io ">ca3a«bno«r«'S,q a t<* »»«© «irf
YOJJAM .ncX;ffTAXo«b fti£* c^.oen5 * •t=li,*alaX«r «Mf* salirll
m\l .XVXac ,*>ai .XXI e?:E ,.00 TieiAflT ar<TAH OOAOIHftiiV
-iif? '^XiffW ,e:f0x/oo nononoo «tf* noqtr si no.li^flT«io»b( »rf*
*ofl ftii/oris fjflf ,t»<ioT(ff«l fi ^Xf'rfr « a?« n^^&i aoliOini(&at
faXori oJ air lol y;rt/i«?p<»0'>n *t ■ ,n' vis n99<f yynA
*iXcflR^'''V^t fai/;Ji/*l:fs0oo ovBif foXuow ii ^noXft jnifons-is "x%r'*'»rfw
g'm;t«tiAXq %o. sulvia (icfJ nl r)«i;iii/ si xcTife xftrf^iwl! A.
-oxri.-t9inl es^rf^ lo rfoeS ,1 ,1 9nrl:foifi*Bnl nevlg
3.
tlone dir»^ct8 a verdict if certain f-tcts rre found from the
evidence. Each of these instructionB is bhsed upon the
theory of a contract for pale betvem the pnrtiea. Each of
the inetruotions ignores the deff^nse that the ulc. intiff had
an opportunity to inspect the articles, and, having failed to
do 80 the mistake ooourred through the fault of the plaintiff.
In STEINKEYKR v. 30HROEPPSL, 826 111. 9, on 13, the Supreme
Court of Illinoie clearly stated the requirements for re-
covery in case of mutual mistake of fact in the formation
of a contract. Freedom from negligence on the part of the
one seeking recovery is an es^^ential elerr.ent. Instructions
which ignore defenses, which the evidence fairly tends to
prove, constitute reversible errcr: OORPSLL v, PAYSON, 170
Ill» 213, 217 to 219; NYMAN v. MANUFACTUFKR3 and MERCHANTS
LIFK ASSOCIATION, 262 111, 300, on 308, and the giving of
such instruotions is not cured by other inpitruntions given,
I. C, R. R. CO. V. SMITH, 208 111, 803, on 619.
The only qiiection remBining is whether the evidence
fairly tended to support this defense, 'Ve do not under-
stand that the Supreme Court held that th?re vi-iii<3 no evidence
to support the theory of pxirchase and sale. The decision
as we- under^stand it is simply th??t there T^as evidence to
support tlfe theory of agency and that, that theory of the esse
was properly eubmit-^ed to the ^ury.
We understand the holding of the Supreme Court to be
that if the relationship of eeller and purchaser did not other-
wise exist, bxit that of principal and agent did, the formal
wording of the confirmation, and the retention by the
plaintiff of the difference between |38.00 and |38.50 a
ehere upon the sale of the allotment certificates, »euld aot
necessarily, as a fact or under a rule of law convert the
relBtlonship of principal and agent into one of r eller and
purchaser. The above in-^tructions were given on the theory
of purchase and sale. It appears from def-^ndant's refused
instructions I and II that the defense of fiiilure to use
the opportunity to examine, wrs urged. The evidence shows
bsri "illJnlsIq fic^ Jsrf* »8n'%1^9b ^rf;t Pi'^iorrgl ahot&ouiiistti eri*
»msi(?ye srii- ,fil ac ,i3 ,1/1 aSS \J3«|q30HH08 *▼ HSTYSMXISTB ftl
-'4t io^ aj»'XT^*i»t',-rfcm-)t -.rff -^^fiSB y(IiB<^lB slontlll Jo^Tutiti
BTKAHOHSia &ni? eHSWTOA-fUMAW .v ilAHYW jeXS oJ VIS , it;i6 ,1X1
lo sniviS ocl* fafJ<s ^80C flo ,00« .1X1 SdS ,vI0ITaI0O?^PA JfTlJ
,feia no ,80& *I£I 80S ,HTIMe .y ,00 : »H ,H. ;0 ,1
eofisb/y^ on atsir ?»t«jriJ fpMt b£9ii.itao^ ^tn^xquB ftrf* ^mrf* bn«*»
aojtelo«9b oriT .sX-sa bna 9ejjiloij/q lo ^?a«xi^ 9d* *i6<?^if» dt
oj '^onQbjtvo asff '^i^rij u-^rfi? Ylqmia al Ji bfr.r,SPt«»bitt; -^w vea
^ci 03' J-tiroO oiffSTqire «iffx ^o ^aibXoxf «vriJ brt«.'t*i'i'^fanjj sW
Issno^ ^iii ,bib i^n^'i^^fl baa XaqionXTq 'io cfarff #ifcf ,tBJtxd 98Xw
sdJ vd aoitn*4»1 'id-l boa ,-rt<>Jti'j9nrii^noo ^rfcT to ^nibaow
&0B blmm fB9&.ao ill f-fio cfn'jM^tolXjs •»ri? to *Xj8o ftcft <toqi/ snttfa
•^iri;^ tr^vnoo -nsiL to *»Xfri i? mbciii to toiit a ob , xXiTBatrso^rr
bnr, 'f-'IIfi'i ''0 ">no otai (fn'^'gR btts Xsqlonlxq to afidnnuti.Bt'^T
Ytto»rf:t orlcf tio «'>Vl8 (^I'jw anoX:ff>tft:i^B{TX nvro6« 9rfT ^tnqsriotijq
b«6ut'*i a ♦*n>ibn'>t<9b inonl aTiiW-rn :»"I .'^Xij^ bnjs searioii/q' 'ffe
sai; o* ft^irXi.s*5: "ao ^rh*.!:^.^ '••ff' rf-ifftf It bnc T titveilfointsnt
Bworip. ^on'^b^v . .....iia&KB ot xtldvtroijQO 9di
4.
that the allotment certificate of the defendant wf r f orwr rded
to the plaintiff with n draft attached and that the plaintiff's
Becr<*tary received the certificfte.
If the jury verp entitled to conGid^T whether the trane-
action amounted to a purchase by the plaintiff, the jury
should rIbo have bern allowed to consider, und^^r proper in-
struct lone, whether the plf^intiff was free from negligence in
the conBummation of the purchase.
We are of the opinion that this theory of defense was
not properly presented to the jury, and thctt the judgment of
the Circuit Ooixrt of Lawrence Oounty !?hould be reversed and
the CcUffe remanded for a new trial.
F.everned and remanded.
JW^'^Xb Iri^WWoi^l^'
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■H^-^-'M^ ^^ ./w
RESERVE BOOK
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