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Full text of "Illinois Appellate Court Unpublished Opinions: first series"

5 - 




Digitized by the Internet Archive 

in 2011 with funding from 

CARLI: Consortium of Academic and Research Libraries in Illinois 



http://www.archive.org/details/illinoisappellat337illi 



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44502 

FRED E. DILLON and CATHERINE 
A. DILLON, his wife, 



Appellees, 



v. 



CHICAGO PARK DISTRICT, a municipal 
corporation, JAMES H. GATELY, WILLIAM 
McFETRIDGE, JACOB M. ARVEY, JOSEPH 
W. CREMIN, JOHN LEVIN, CONSOLIDATED 
CONCESSIONS, INC., an Illinois cor- 
poration, 



APPEAL. FROM 
SUPERIOR COURT 
COOK COUNTY 






Appellants. 



\ 



.A. 100 



z 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION 

OF THE COURT. 

Fred E. Dillon and Catherine A. Dillon, his 
wife, on behalf of themselves and others as taxpayers, 
filed a complaint in chancery against the Chicago Park 
District, a municipal corporation, the five Commissioners 
thereof and the Consolidated Concessions, Inc., a corpora- 
tion, praying for an injunction to restrain the municipal 
corporation and its commissioners or other representatives 
from executing and delivering any contract pursuant to an 
award made January 27, 1948 to Consolidated Concessions, 
Inc., and that the latter corporation be restrained frcm 
executing any contract with the Park District, and from 
entering upon the performance of any contract by virtue 
of the award. Plaintiffs amended their complaint by 
designating the provisions of the law asserted to have 
been violated and by deleting a charge that one of the 
Commissioners owned the corporation to which the contract 
had been awarded. Plaintiffs state that they were co- 
partners in the Central States Concessionaires and had 
presented a bid for the concessions in Zones West, South 




BOUND.. J^ ^ I '"^i.mracws* 



-2- 

and Central of the Chicago Park District. They claimed 
a fraud against themselves and other taxpayers similarly 
situated, which would increase taxes. Answers filed by 
the various defendants denied the material allegations of 
the complaint. Consolidated Concessions, Inc., denied 
any basis for a taxpayers' action. The case was heard by 
the chancellor and a decree entered in substantial con- 
formity with the prayer of the complaint. Defendants 
appealed. One set of briefs has been filed by the muni- 
cipal corporation and the Commissioners, and another by 
Consolidated Concessions, Inc. 

In their brief the Park District and the Com- 
missioners advance 7 points, the first 5 of which, in 
order, urge that the decree should be reversed because 
(l) in the absence of a statutory or other provision of 
law, the Park District is not required to award concession 
contracts in response to competitive bidding; (2) that 
there is no statutory or other orovlslon of law requiring 
the letting of concession contracts in resDonse to com- 
petitive bidding; (3) that in the absence of a statutory 
or other provision requiring competitive bidding the 
advertising for bids and taking of bids does not bind the 
Park District, nor is it required In such case to observe 
the legal requirements with regard to lettin of contracts 
pursuant to competitive bids and may disregard such bids 
and negotiate a contract; (4) that where there Is no 
ambiguity or doubt, the court cannot resort to practical 
or contemporaneous construction by the parties of statutes 



-3- 

or ordinances; and (5) that the doctrine of contempor- 
aneous construction only applies where there is a con- 
temporaneous, long, uniform and practical construction. 
In their brief plaintiffs assert that they are in accord 
with appellants' proposals 1 to 5, both Inclusive. In 
point 6 defendants assert that plaintiffs failed to prove 
the existence of the conspiracy and fraud chcrged in their 
complaint, while the evidence conclusively shows that the 
officials of the Park District acted in good faith, and in 
point 7 that in the absence of fraud the court is without 
power to substitute its judgment for that of the Board of 
Commissioners of the Park District. 

The brief filed by the Consolidated Concessions, 
Inc., maintains (l) that the case has no basis as a tax- 
payers 1 action; (2) that neither fraud or conspiracy is 
involved; (3) that the Park District is under no duty to 
proceed by bids with respect to concession contracts; and 
(4) that the chancellor had no authority to base his 
decree on his judgment of fairness, or upon any other 
ground than proof of fraud, and that there was no 
unfairness. Plaintiffs state that as abstract oppositions 
of law point 3 made by Consolidated Concessions, Inc., and 
points 1, 2, 3, 4 and 5 of the other defendants' briefs 
are substantially correct and limit their brief and 
argument to answering points 6 and 7 of the brief of the 
Park District end the Commissioners, and point 4 of 
Consolidated Concession's brief and argument. Plaintiffs 
assert that Consolidated Concessions, Inc. is not in a 
position to urge that they cannot maintain a taxpayers' 



-4- 

suit because that proposition was not raised in the trial 

court. 

The chancellor found that there is no require- 
ment that the Park District advertise for bids in letting 
concession contracts; that there is no binding custom based 
on uniform practice requiring competitive bids for con- 
cessions; and that neither the Fark District, the Com- 
missioners thereof, or any officials there©f were guilty 
of fraud or conspiracy in connection with the subject 
matter of the suit. It thus appears that the chancellor 
found in favor of defendants on the Issues submitted, 
except on point 7 of the Park District brief and point 4 
of the Consolidated Concessions ' s brief. Nevertheless, 
the court entered its decree in favor of plaintiffs, 
granting the relief prayed. 

Plaintiffs, doing business as Central States 
Concessionaires, in 1941 were awarded a contract without 
competitive bidding by the Chicago Park District for the 
exclusive right to occupy certain premises designated 
West, South and Central Zones in that district, and to 
operate therein certain concessions for a period of 5-1/2 
years. These concessions consisted of the right to serve 
and dispense food, render certain services, etc., in 9 
parks located in the named zones. This contract was 
twice extended without competitive bidding and finally 
expired en November 30, 1947. In October, 1947 the Park 
District, not desiring to grant a further extension to 
plaintiffs, decided to advertise for and receive bids and 



-5- 

enter into a new concessions contract. The general super- 
intendent was instructed by the Board of Commissioners to 
prepare forms of bids and specifications for the named 
z^nes and the North Zone as well. These were prepared by 
the legal department of the Park District. The District 
duly advertised for the reception of bids on November 13, 
1947. Sealed bids were receivable until 10:00 a.m. en 
December 16, 1947. At 10:00 a.m. on that day at a public 
meeting of the board the bids were publicly opened and 
read aloud. There were 8 bidders. Also present at that 
meeting were several of the bidders, newspaper men and 
some of the general public. At that meeting the bids were 
referred to the general superintendent for tabulation and 
report-. The formal meeting of the board was then adjourned. 

The Commissioners proceeded to their executive 
office where they convened as a Committee of the Whole. 
The president appointed a committee consisting of George 
T. Donoghue, General Superintendent, Philip A. Lozowick, 
General Attorney, and Daniel L. Flaherty, Assistant General 
Superintendent, to canvass the bids and interview the 
bidders. The tabulation shows that the bids consisted of 
what are designated as the "Main Proposal" and the "Alter- 
nate Proposal." The main proposal specified a lump sum 
for a period of 5 years, payable in monthly installments, 
with the additional provision that "in any one calendar 
year when 15/2 of the total gross receipts equals the 
aggregate of 12 monthly installments, the concessionaire, 
during the remaining portion of said calendar year and in 
addition to said monthly Installments, shall pay a sum 



-6- 

equal to 15fo of the total gross receipts realized 
thereafter. " The alternate proposal provides for a flat 
payment without any percentage provision. Between De- 
cember 22 and 24, 1947, the committee appointed to can- 
vass the bids and Interview bidders proceeded with their 
assigned duties. All except one of the bidders appeared 
before it. Each bidder, in advance of the interview, w?e 
requested by letter to give information as to qualifica- 
tions to operate the concessions in question. Some of 
the bidders did not reply in writing. All members of the 
committee were present at and participated in all of these 
interviews. As a result of this canvass of the bids and 
interviews the committee decided unanimously that the 
bids were unsatisfactory and to recommend to the Board 
of Commissioners that all bids be rejected. On January 
19, 1948 the committee reported to the Commissioners, 
sitting as a Committee of the Whole. A copy of the tabu- 
lation of the bids had been submitted to each of the Com- 
missioners in advance of that meeting. The session lasted 
4 or 5 hours. All of the Commissioners and all of the 
members of the canvassing committee were in attendance 
and participated in the discussion. Mr. Donoghue reported 
for the latter committee. Each bid and bidder was con- 
sidered separately. The Commissioners then decided to 
" reject all bids. 

The report of the canvassing committee on the 
respective bids is summarized: (l) Central States (Dillon): 
This concessionaire furnished a poor quality of food and 



-7- 

servlce during the preceding year; it failed to clean up 
after functions; its employees were overzealous and were 
guilty of incivility toward patrons and failed to obey 
©rders; the concessionaire neglected to follow out sug- 
gestions and to Improve services or change undesirable 
methods; complaints came in from the public to various 
Commissioners voicing criticisms cf service; specific 
instances illustrating these shortcomings were narrated 
In the committee report and discussed by canvassing com- 
mittee members and by the Commissioners. (2) C. & R. 
Refreshment Services (Napolltano) : The principal member 
of this concern was handicapped by illness; it was doubted 
whether he had the physical capacity or experience to 
carry out the contract; if the contract were awarded this 
bidder, his son, a practicing attorney, would be obliged 
to perform the contract, and doubt was expressed as to 
whether he had the necessary experience to handle the 
project. (3) John A. Whalen Co. : This company had in prior 
years a concession contract but its services had proved to 
be unsatisfactory. (4) Frank 0. Washam: His experience in 
the concession business had been very limited. He "showed 
no ability to get the equipment necessary to run it," while 
he had made no preparation to operate the concession. He 
failed to deposit a certified check with his bid, which 
the specifications required. (5) Illinois Sports Service: 
Experienced in handling concessions, but its representa- 
tive stated that "they would not make any minimum guaran- 
tee near the amount of $525,000." Their bid names a 
minimum guarantee of only #200,000, and they stated that 



-8- 

in no event would they make a minimum guarantee in excess 
of #300,000. (6) Edward M. 'Leary. He had a very lim- 
ited experience in the concession field. He owned and 
operated a tavern and restaurant and "gave no promise of 
being able to render the kind of service the Commissioners 
had indicated they wanted," (?) Hill Industries: This 
bidder was not requested to appear before the canvassing 
committee since it did not deposit a certified check as 
required by the specifications. (8) Consolidated Con- 
cessions, Inc. : This was a newly formed company, having 
been incorporated on September 24, 1947. The three 
principals were Ashley Ricketts, William Burns and William 
Colbert. Ricketts had many years of experience in the 
restaurant business "from the ground up and rounding out 
his career as a manager. " He had a knowledge of food and 
was trained in handling a large number of people In a 
comparatively short time. He had evidently made a survey 
of the zones in connection with his bid. He proposed 
Improvements in the service, such as more attractive 
stands and booths, a wider coverage of the various parks; 
he had proposed the installation of mobile units to bring 
provisions to the people, and suggested that past coverage 
had been inadequate. He told the committee at the pre- 
liminary interview that he had very little equipment at 
the time but that he knew where he could get everything 
he needed, except rowboats. He informed the canvassing 
committee that his company had $40, 000 in liquid assets 
and additional assets of $86,000. Superintendent Donoghue 



-9- 

said that he "felt they are reliable and they gave 

promise of being able to give the services that the Com- 
missioners had said repeatedly they wanted to give. " It 
was also reported to the Commissioners that this company 
had submitted a guaranteed minimum of only $150, wCO for 
the five-year term and it was the only bidder which had 
not submitted a written statement. (9) Cafe Brauer: 
This bidder had had the concessions in the North Zone for 
a period of 30 to 40 years. The bidders for the other 
zones had also bid on the North Zone. Bids on all zones 
were at first considered together. There was talk of the 
committee making one contract for all zones. The General 
Superintendent, however, reported that Brauer had rendered 
satisfactory service and that any complaints made were 
without foundation. He recommended that Brauer be awarded 
the concession contract for the North Zone. 

At their regular meeting of January 27, 1948, 
Brauer was awarded the contract for the North Zone. The 
Commissioners at the meeting of the Committee of the Whole 
on January 19, 1948 advised the canvassing committee that 
if it would formulate a written report and recommendation 
to reject all bids on the West, South and Central Zones 
as being unsatisfactory, the Commissioners at the next 
regular meeting would approve such a report and recom- 
mendation. A written report to that effect dated January 
23, 1948 was prepared and signed by the canvassing com- 
mittee and was later signed by the individual Commissioners. 
At the same meeting, after the Sommissioners had stated 
their approval of the committee's recommendation and 



-10- 

report, the General Superintendent raised the question 
as to what would be the next step. The committee was then 
directed to attempt the negotiation of a contract with 
Consolidated Concessions, Inc. On the day of the meet- 
ing, January 19, 1948, the Commissioners gave additional 
instructions to the committee. The terms of the original 
specifications excluded from the concessions the Singling 
Bros. Barnum & Bailey Circus, and also provided for the 
furnishing of a minimum of 250 rowboats. The Commis- 
sioners' additional instructions celled for a modifica- 
tion of these two provisions. As to the circus conces- 
sion the Commissioners decided to include the circus. 

It developed in the session of January 19, 1948 
that on previous occasions when the circus management had 
handled this concession, its service and the food and 
drinks sold had proved entirely unsatisfactory and that 
numerous complaints had teen registered with the Commis- 
sioners. It was stated that other users of the park 
premises had not been permitted to handle their own 
concessions. The Commissioners came to the conclusion, 
as testified by one of them, that "We determined that 
never again would we permit a contract where we would give 
any one a right to operate a concession without super- 
visory authority on the part of the Commission, and we 
don't exclude any one else." It developed at the can- 
vassing committee's interview with Mr. Dillon that he had 
been using only 150 rowboats in the West, South and 
Central Zones. The committee advised the Commissioners 



-11- 

that in its opinion a minimum of 150 and a maximum of 25C 
would suffice. The Commissioners instructed the com- 
mittee to use its own judgment on the number of rowboats. 
As the Consolidated Concessions, Inc. "Main Proposal" bid 
was only $150,000, the committee was instructed by the 
Commissioners at the meeting of January 19, 1948 that in 
its negotiations with that corporation to get "at least 
the same compensation we had received there before from 
the operation of these concessions, or, in lieu of that, 
the amount bid made by the Central States." The amount 
theretofore received from the operation of this con- 
cession from the Central States was between $104,000 and 
$109, COC for the year 1947. Central States bid a minimum 
guarantee of $525,000 for 5 years, or $105,000 a year. 

Shortly after January 19, 1948 the canvassing 
committee resumed its negotiations with Consolidated 
Concessions, Inc. As a result of a series of interviews 
with representatives of that company the canvassing com- 
mittee negotiated a contract, the terms of which are the 
seme as those contained in the proposed specifications and 
contract upon which bids were received, with these ex- 
ceptions: (l) they included the Ringling Bros. Barnum & 
Bailey Circus, when, as, and if that circus came to 
Chicago and occupied park premises; and (2) the number of 
rowboats was fixed at a minimum of 150 and a maximum of 
250. The contract was presented to the Commissioners 
sitting as a Committee of the Whole on January 27, 1948, 
at a morning session, accompanied by a recommendation of 



-12- 

the committee that the contract for the West, Central and 
South Zones be awarded to Consolidated Concessions, Inc. 
At a formal meeting of the Commissioners on the afternoon 
of that day all of the bids of the West, Central and South 
Zones were rejected, the recommended contract with Consoli- 
dated Concessions, Inc. was approved and a concession con- 
tract was awarded Cafe Brauer, the high bidder for the 
North Zone, as recommended by the canvassing committee. 

In addition to the findings in favor of defend- 
ants hereinbefore mentioned, the chancellor found that 
"the changes made as aforesaid In the proposed contract 
resulted in substantial benefit to the concessionaire 
contractor; that no opportunity was given to higher bid- 
ders to be heard in later negotiations with the Chicago 
Park District, which action favored Consolidated Conces- 
sions, Inc. and was unfair to other bidders and to the 
public; that the contract involved is with a public body, 
not with a private firm or individual; that patriotic 
duties and ethics demand that a citizen should deal more 
fairly with his G-overnment than with private business; 
that no explanation was offered as to why Consolidated 
Concessions, Inc. bid $150,000 and shortly thereafter 
raised its bid to $525,000"; and "that a public contract 
to be valid in a court of chancery cannot emanate from 
such a beginning. " 

Plaintiffs, arguing that equity will act to 
prevent a breach of trust on the part of oubllc officials, 
state that the facts disclose that the Commissioners, 



-13- 

(it must be presumed) In order to obtain the most 
advantageous contract, devoted considerable time, thought 
and expense to the preparation of the specifications for 
bidders; that as a result of public advertisements seven 
bids were received, reviewed and rejected; that after 
"this preliminary shadow boxing" the Commissioners com- 
pletely reversed their course of conduct and "in a star 
chamber hearing" decided that in one way or another, 
"the new, untried, inexperienced corporation, Consolidated 
Concessions, Inc. " would be awarded the contract; that 
this corporation "admittedly in the control of a 34 year 
©Id young man, who hao 1 no concession experience, no equip- 
ment, no statement prepared by a certified public account- 
ant, no references, and whose business office was the 
heme of its managing officer and president, Ashley Rick- 
etts, had become the 'favorite son'"; that knowledge of 
"extraordinary lack of qualifications" was supolied to the 
park committee by the corporation itself; that receiving 
this information and apparently disregarding it, Mr. 
Donoghue and the members of hi6 committee requested the 
corporation to increase Its minimum bid figure from 
$150,000 to $525,000; that this the corporation agreed 
to do only after the Park District reduced the require- 
ments of the original contract's specifications as to the 
number of rowboats "this favored corporation would be 
required to purchase from its limited bank account, and 
in addition, increased the opportunities for making profit 
by Including the right to the favored corporation to 
tperate the concession at the Rlngllng Bros. Barnum & 



-14- 

Bailey Circuit"; and that "there was also $10,CC0 or 
$15,000 worth of cleaning the Park District agreed to do." 
Plaintiff argues further that "rowboats cost money"; that 
Consolidated Concessions, Inc. had little; that the burden 
wa6 reduced by permitting the corporation to keep its 
working capital intact; that fear of a substantial in- 
creased minimum bid was easily overcome; that the com- 
mittee showed "its books" to the appellant contractor and 
explained that with the additional $10,000 or #15,000 in 
cleaning expenses, to be saved under the new contract, 
together with the opportunity for increased profits at 
the circus, everything would work out for the corporation; 
that this conduct shows a complete disregard of oublic 
duty; that the procedure adopted amounts to first dis- 
covering "what the traffic will bear by sealed bids, then 
throwing them out and working with the 'favorite son'"; 
that the procedure goes against all principles of awarding 
contracts developed over the years for the protection of 
the taxpayers; that it is a vicious attempt to take ad- 
vantage of what was through poor draftsmanship omitted as 
a safeguard when the Chicago Park District code was ap- 
proved; that with all these inducements and explanations 
the bidder agreed to meet the rejected bid of Central 
States Concessionaires of $525,000, which was the highest 
bid taken; and that the record is silent as to any attempt 
being made to determine whether other bidders would have 
increased their minimum bid in view of the changes in the 
specifications that the Park District was willing to make 



-15- 

and that new bidders were not solicited. 

Plaintiffs urge that this method of obtaining 
information is a radical departure and a flagrant dis- 
regard of the previous careful attempt to obtain what would 
be to the best advantage of the taxpayers; that a demon- 
stration that in the opinion of the Commissioners, the 
matter of whether a minimum bid should be &150,0CC, 
$3CC,CCC or $525, OCC, is a vital matter looked upon by 
the persons familiar with the concessions business as 
something that will be harmful to them in the event con- 
ditions prevent them from obtaining sufficient income to 
warrant the payment of the minimum bid; and that the 
course pursued was not the usual action of public officials 
in negotiating a contract. Calling attention to the fact 
that one of the Commissioners stated: "Now, that might 
mean we lose some revenue from Ringling Bros, next year, 
but we are not operating the Park District for profit or 
for revenue primarily, " plaintiffs assert that they, plain- 
tiffs, would like to know if the park concessions are to 
be parcelled out at the whim of the Commissioners with no 
regard to the burdens imposed on the taxpayers. Plain- 
tiffs state that their position is that regardless of 
statute, ordinance, custom or contemporaneous construction, 
when the evidence discloses a failure on the part of 
public officials to carry out their trust functions by 
favoring one person over another at the expense of the 
taxpayers, equity will enjoin such conduct and prevent the 
Irreparable damage that the taxpayers will suffer, and 






-16- 

that the cases cited by defendants to the effect that the 
court will not interfere with the decisions of public 
bodies in the absence of fraud, also discuss favoritism 
and bad faith. Plaintiffs say that the Consolidated 
Concessions, Inc. was given "substantial benefit, " that 
it was "favored, " and that the actions of the Park Dis- 
trict were "unfair." Citing People v. Parker . 231 111. 
478, and Mills v. Forest Preserve Dist . . 345 111. 503, 
plaintiffs state that an examination of the facts should 
lead to an affirmance of the decree. 

In the absence of fraud the court is without 
power to substitute its judgment for that of the Board of 
Commissioners of the Park District. When the statute 
vests a discretion in a municipal corporation to determine 
a question, it is not the province of the court to de- 
termine and control that discretion. The courts cannot 
interfere, in the absence of fraud, with the exercise of 
the official discretion of the Commissioners in awarding 
contracts. Johnson v. Sanitary District , 163 111. 285; 
Hallett v. City of Elgin . 254 111. 343; and People v. Kent . 
160 111. 655. In the Hallett case, a bill to restrain the 
city from awarding a contract, the court said (349) : 

"The burden of proof was upon the complainants 
in the bill to overcome by proof the presumption of law 
which obtains in favor of the good faith of the board ef 
local improvements in awarding the contract, by showing 
that they exceeded their jurisdiction, or their action in 
awarding the contract was vitiated by fraud, or that the 
award was arbitrarily made or was the result of favoritism. 

Fraud is never presumed. It must be alleged and proved. 
The chancellor found that there was no fraud. This find- 
ing is borne out by the record. Plaintiffs do not assign 



-17- 

or argue any cross errors in the findings of the chancellor. 

As there was no evidence or finding of fraud, 
plaintiffs seek to sustain the decree on the theory of 
"favoritism 1 '', and "bad faith." In our opinion there is no 
basis either in the pleadings or the evidence to sustain 
the findings that the action of the defendants "favored" 
Consolidated Concessions, Inc», and "was unfair to other 
bidders and to the public*" The extensive summary of the 
facts shows the reasons for the rejection of 8 of the 9 
bidders, which were (l) unsatisfactory service in the 
performance of concessions contracts with the Park Dis- 
trict in the past; (2) physical incapacity of the bidder 
to carry out the proposed contract; (3) failure to de- 
posit a certified check with the bid; (4) refusal to in- 
crease a minimum bid; and (5) lack of ability to carry 
out the proposed concession contract. There was a thorough 
screening of the bids and bidders. It was within the 
discretion of the board to decide whether any good purpose 
would be served by asking that further bids be submitted. 
Advertisement for bids was given wide circulation. In our 
opinion the commission was not obliged to again solicit 
bids in order to escape a charge of bad faith or favorit- 
ism. The commission had a discretion to decide that 
further solicitation of bids would prove barren of results 
in view of the wide solicitation made in the advertisement 
for bids. There is no evidence that the books of the 
Park District were shown to the representatives of Con- 
Jlidated Concessions, Inc., nor is there any evidence 



so. 



-18- 

tendlng to establish any assurance by the Park District 
that "under the new contract, together with the oppor- 
tunity for increased profits at the circus, everything 
would work out for the corporation." There was no proof 
to support the "favored son" theory. There was no de- 
parture by the commission from any uniform practice in 
advertising for bids, or in rejecting all bids and then 
negotiating a contract with one of the bidders. In the 
years preceding 1947 the plaintiffs were awarded contracts 
without bidding. They were also awarded contracts where 
bids were received and rejected and as a result of sub- 
sequent negotiations. The process followed in the case 
at bar was not a departure from any uniform practice. 

The grounds which plaintiffs urge against the 
contract with Consolidated Concessions, Inc., are: 
(l) increasing the minimum guarantee from $150,000 to 

$525,000; (2) including the circus in the concessions 
contract; (3) reducing the minimum number of rowbcats 
from 250 to 150; and (4) the alleged elimination of the 
obligation to clean certain areas. As to increasing the 
minimum from $150,000 to $525,000, the evidence shows 
that Consolidated Concessions, Inc. had made the best 
impression upon the canvassing committee and the Commis- 
sioners. Since all the remaining bids and bidders for 
the zones in question were eliminated after hearings 
before the canvassing committee and the Commissioners, 
on the grounds shown by the record, the Commissioners 
were clearly within their rights in negotiating with 
Consolidated Concessions, Inc. to raise its minimum bid. 



-19- 

As a result that bid was raised to $525,000. In this 
there was neither favoritism or bad faith. It was the 
function of the Commissioners to pass judgment on the 
information before it. 

Turning to the subject of the inclusion of the 
circus, it appears that should the circus come, the Park 
District would share in the profits derived from the con- 
cession, and that one year Dillon had been paid by the 
Park District to oversee that concession because the 
circus had managed the concession in an unsatisfactory 
manner. The inclusion of the circus, should it come to 
the park property, was a matter to be determined by the 
Commissioners. The matter of the minimum number of row- 
boats was also a matter for the determination of the Com- 
missioners. They had the right under the contract to 
require Consolidated Concessions, Inc. to provide 
250 rowbcats. Dillen, who had been taught by experience 
over a period of years, had found 150 to be adequate and 
equal to the demand. As to the elimination of cleaning, 
it appears that the specifications calling for bids are 
exactly the same as those contained in the contract with 
Consolidated Concessions, Inc. As to the statement quot- 
ing one of the Commissioners as saying, "We are not oper- 
ating the Park District for revenue primarily," we are 
of the opinion that this statement is not subject to 
criticism. We do not believe that anyone will maintain 
that the parks are operated primarily for revenue. 

From a careful consideration of the record and 
the cases cited by the parties, we find that there was no 




-20- 

breach of trust on the part of the Commissioners and 
other officers of the Chicago Park District. The record 
shows that the Commissioners endeavored conscientiously 
and honestly to carry out their duties. One of their 
duties was the awarding of contracts for the operation 
of the concessions in the 4 zones. In fulfilling that 
duty they interviewed many persons, carefully considered 
all the elements involved, after which they decided to 
award the contract to Consolidated Concessions, Inc. 
There is no basis for the findings that the Commissioners 
"favored" anyone, or that the award to Consolidated Con- 
cessions, Inc. was "unfair to other bidders and to the 
public." There is no support in the record for the charge 
that the selection of Consolidated Concessions, Inc. was 
the result of arbitrary favor on the part of the board. 
We agree with defendants that the award of the contract 
and the changes adopted were the result of investigation 
and the consideration of reports and facts within the 
knowledge of the Commissioners and the board staff. The 
board's action was the result of the exercise of its 

discretion. 

For the reasons stated, the decree of the 

Superior Court of Cook County is reversed and the cause 

remanded with directions to dismiss the complaint, as 

amended, for want of equity. 

DECREE REVERSED AND CAUSE REMANDED 
WITH DIRECTIONS 

KILEY, J., and 
LEWE, J., CONCUR 












cfr 



General uo. 9619 



' S OF ILLINOIS 
APPFLLAT 

February Term, A.3.1949 



Fred I. Evans, 

Plaintiff -Appellant, 



Paul F. Eeich Company, a 
Corporation, 

Defendant -Appellee. 









Agenda Ro« 6 



eal from 
Circuit Court of 



O O i X«i\# -"■/ o 



•ear C-unty 



DADY, P.J. 



Tlii3 suit Is based on an allseed "breach by defendant- 
appellee Paul F. Beioh Company, a Corporation, of an alleged conti- 
of employment of plaintiff -appellant Fred I. Evans, as a an 
for the defendant. 

At the conclusion of all of the evidence offered by 
plaintiff and by dofendant the trial court, on motion of de"" t, 
instructed the Jury to find the is3ues for defendant* The court 
then entered Judr^ent on 3uch verdict in favor of defendant and 
against plaintiff. 

The plaintiff appeals fron the entry of 3uch judgment. 

The material i33ues made by the ing3 are whether 
or not plaintiff ^as duly employed as a salesman by defendant thr 
its agent Frank -'orris, and whether or not such employment was 
again duly affirmed by defendant's agent Charles I. 0* 'alley. 



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In pas3inv on a notion ''or a dirsc J the trial court 

not "?ei«h the evi Tones, In : the rule is that i<* there la in the 
record evidence which, ilome, fairly tor ove the 
material allewations of the Lnlnt, then such notion 3 be 

ied. If there is no evi tending to prove the material 
allegations of the OOS9laint, or if there is hut a bare scintilla 
of evid^noe in support of -uoh material allegations, then nuch 
usotion should "be allowed. ( Johnson v. Bennett , " r ~ , ~ 111. ™^o.> 
"Thether there is any evidence fairly *ove the 'ial 

allegations of the eotnplaint Is » (D o vs. Pity 

Peru, 343 HI. M«) 

Therefore our atiterent of -ill cover only such evidence 
as ■-•sider favorable to the plaints 
In July, 104*, Fr»> 'ris was 
veer" or "Territory " for the entire State of hio. 
Plaintiff testified that he first wet 'orris in July, I'M*, 
in the hone of a mutual friend, Sussoll ne, i I own, 

of— - ^-^-^S--ci«t, that orris then toll bin: 

necessary for the sellinr of defend oduots, and 'orris 

had with hi- literature aa rertisinc raatsrial -nertairin* to the 
aale of defendants produots, and radio w on the air, that 
after sore discussion o t *ris said to plaintiff, " "he 

bill," and "you can consider youriel" hired for the Pa*l t* Beioh 
Goripany," and the wares settled on wer -fA per veo' , H at 
ris said he would send a forr- on blank which nlaint' 

was to fill out and send back to orris because to 



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hanlle the natter arrl wo\ -t 1t -h faster, but 

tlmo no late 'saa Jet for the plaintiff to start wor? . 

Plaintiff further testified that he -'la at the "o! 
home about a week later an! was then told by orrl3 that hia atarti' 
late would be September l«, 1948* end that 1 out of *?ew 

Orleans, La, that at that tire tt intiff o"Tse rren, 

Ohio, and, on orris » -Ice, he sol ght » houoe 

trailer, ani that !.-'orris said the ! "enlant wou? the ja of 
reeving plaintiff 1 s furniture to Louisiar .-, out the 

aidUe of July, 104*;, plaintiff reoolwod ft] lett 

heed, from "orris dated July is, l*4X, in which id an 

lioation blank for er^loyrent by I oh le *-,ed 

that "orris wouli I /ans to fill out the bla- ".ail it to 
'orris in vleveland, 0., and furtl ">le 

for us to start tren on these Jobs yc 1 heai t plaintiff 

filled out ani returnei 3uoh blank to 'orris, that plaintiff 1 st saw 

orris in September, 104s, at whioh ti Tin t ntiff he 
had been aeoepted but that there ha-i been a ehanee o 
plaintiff was to work out of Indi • lis, Ind», ( en 

took his ohlllren out of school and raoved to IndlanapoliSi he 
stayel until early in Decoiuber, 1948a that plaintiff thereafter ker>t 
In oontraot '?lth : orri3 by sending telecrars to orrl3, and waited 
to hear from rorria but received no word or reply from ' orri3, that 
sometime later, apparently in January, !^>4fl, Plai? ?ent to the 

:~o hranoh of floe of defendant in an unsuccessful attemt to 
contact orris, anl that thereafter, In January, plaintiff went 
to the hore office of nt in Blc > Illinoie, :*e 
talked with one Oharlea 0»: alley. 



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The undisputed proofs, offered by defendant* bet at that 
time 0*1 alley was end since December, IQ44, hag been "Gales r" 
of defendant. 

Plaintiff further testified that he then, told •] illey Bf the 
above transactions with >- orris, tha$ » lley told plaint 
he was surprised and Uj ^fortune, said, 

"I don't understand why ~ orri3 she io thi La one 

of our top men, in fact he is our top man*" that " • itlen 

to me made it quite clear it was the first time about it," 
and o'Malley told plaintiff they had "no Information about the fast 
; orris had talked to plaintiff about beer loyee of 

defendant," that 0*' alley then as! Is seoretary to sse if 
plaintiff's application ma on file, but that no en 

was found and there was apparently no corro de ; elant 

and orris 33 to the plaintlffi that »* 'ill"* then 'phoned ko rrris, 
9 was then in Tennessee, and toll Morris what plaintiff had sai 
'•, by means of an extension telephone, a three-way c Lon 
then took place between Plaintiff and orria • alley, that 

' alley then tol r*ls that Brans re an orria w 
on earth he was doing and re t he had lone, 

and told Morris he felt .orris was -rone in e-iving FVans a start! 
date and letting FVans alone in Indianapolis waitine; all this tine, 
that Morris said, "I didn't knot? where hs was or I would have rotten 
in touch with him," that 0' "alley then said to "orris, "Ivans is on 
the ■ *ne, ♦» • ♦ let's get this thine straightened out the best we 
know how," that orris then do* I -hat he had set its for plaintiff 
to start work, that orris then asked ' Hey if he "should continue 
to gather these men together," and 0» alley roplisd s "Yes, get then 



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torethor but for Heaven's sake, donVt give any rrore starting dates," 
that O'^alley then 3aid to orri3, "If vane, all rip* 

Juat say so," and > orria eald, "I do," and >• 11 ey then Mid to 
' orrla, *If you don 1 fe want Mr I rill take ©are a -," 

t after auoh 'phone eonrereatlon » 

at did ?rank arrange wit for salary," and plaintiff 
» iley and Ot;. alley oar, " t la about the fi the 

.junior salesmen on# We start ure," ' 

alao aald, *I oan't ur ia be he 

la usually a pood operator, • -•• but I eilJ , I 

feel that you h**e suff rt 

would be 
you vroull possibly have ■ :lct in you. it A happier 

all around if you became a i ber of the *n," 

thai ♦alley then Introduced plaintiff to ? r. Belafc sh 

^Ith the remark, "t^ 13 la the man you have to je 

when you are out on the r short of 

fallow that alvanoes It to you," th i ' 11 

that if he would for aero a auit at 1 : ' tlley rou] 

on the payroll aa soon as there was a ten per eenl <n the 

sugar ration of the defendant, that ' ley then gave 

small booklet of the defendant. 

This booklet outlined the 3allin«r ~olioy of tl M 

the problems for the neriod "?hen salesmen would be enc-aired 
cornotition -ras restored. It stated anone- other t^inrs that the 
n romotional anager ia in aw 

Junior salesmen." 

Under late of April l, 104*, the defendant ny by • lley, 
les 'anacer," wrote a latter to ' Lalnti r as 

ia material, stated t 1 was praotloally >ssibillty of 
any kind that auwar ritionir ^ bo ^tely lifted r 'he 

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spring of 1^47, and that ild not be able to U3e salesmen 

until it waa neceasary to sell crools "and rrg are sorry that all plana 
we nade here at the pi for our country-wide operations are necessarily 
being sc long delayed." 

Thereafter and on June 18 1 l"'4-7» the ^lair* enced this 
suit. 

When called by the plaintiff erss witness, f 'alley 
testified that ''orris "is still employed by our company. I tMnk 
he ia now on hla way to court. I didn't see but 
last Sunday," However, orris did not or a his 
absence aa a witness was not accounted for. 

0» "alley, aa a witness for the mt« testified that 
Prank "orris had worked for the defendant for about 11 years, that 
in August* I04*, 'orris was "Territory "anasrer" for the entire 
3tate of Ohio, an! that "orris "travelled continuously, covering all 
of our accounts, people to re sold goo is in Ohio, he called 
on them fror day to day, and apportioned or allotted merchandise 
to them based largely on hat they had bought before the war," 
that orris continued in that ity \m - ir 1, 194Bg 

when he was made "Sales Promotional Yanager," that "we asked all 
of our territorial representatives to be on the look-out m 
who "rould be interested in batoning a junior ■ in *e 
neeled to put on Junior salesmen," an! that he lid r bar telling 

orris in the telephone conversation not to 3et any tcore starting 
dates, and that he dl! say to 'orris "You haven't any authority 
to set datea for anyboly to start wort," 

• alley further testified »rii "had no authority 
outside of that, only to -Trite orders, " it "we did not authorize 
anyboly in our organization tc salesmen from tl ^n. la 
acoept applications." T io ever, in passing, on th -riety of 
the motion ta W ..ti™. th, tr^al mm -- - l3 00urt 






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cannot, properly consider such contradictory evidence* 

While !vana waa testifying the defendant specifically objected 
to !3vana being permitted to testify aa to each of his alleged 
conversations and transactions ha? with 'orris until it was first 
shown that I orria was an agent of the ant and aa auoh agent 
had authority to employ salesman. On the statement of plaintiff's 
counsel that the testimony would be later conr. to ahow such 
agency, such objections were overruled j and we believe properly ao. 
In view of all the testimony we do not bellove there waa any error 
in 3uch rulings* An agency cannot be proved by the larations 
of an agent. ( Proctor v. To -.73 , Hi 111. i*p, 148, ) , such 

rations are ai.-issible as agai- - the 

scope of authority once the agency has been established. (F >er- 
U33er Jo. v. nee Jl"-.y Qo ., 891 111. 940 1 iae^gfeiic^^^^#sae> -^>^ 

In T?aber-"U3ser Jo. v. 139 Play Qo ., '"""'I 111. "'44, the 
court said j "The law is well settled that a principal is boi 
equally by the authority Whiofc ha ally % by 

that which by his am aoti ho appears to give. ( -:a3h v. Jlaiion . 
! 111. 409; Poan v. Duncan, 17 id. B78«) ' orlty in 

an agent ia auoh authority as « * * he a • to have by reason of 
the actual authority which he has; such authority as a reaaombly 
prudent ran, uslnc diligence and discretion, in view o" the 
principal 1 naturally su^ose the acent U . • 

(l Corpus Juris, tff8») ' general avert, unless he ler a 
special and limited authority, ir-liedly i^d bia 

principal by whatever ia usual an I effect auol ao 

aa 13 the subject of his amployaont • -e of known 



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itations third per3on3 leallng with such a eeneral arent. have a 
right to act on the presumption that the scope and character of the 
business he li em-lovod to transact meastires the extent of hie authority 
and to hold the nrlnoipal responsible for the ' dthin 
euch authority.* (2 Corpus Juris, B81j see to the sane effect, Bl 
R.C.L. 854.) * Where a principal has hy his voluntary act placed an 
acent in such a situation that a person of oriimry prudence, 
conversant with "business usages and the nature of the particular 
"business, i3 Justified in pre3umine that such acent has authority to 
perform a particular act, and therefore leala with the arent, the 
principal is estopped as against such thirl person frcr* leaving the 
agent»s authority.' (21 EU0*L«9O7*)* in 8 i p» 13«Si i + is 
saidt "Authority in an agent to employ nay he established eitl 
from a direct grant of the requisite power, from a course of conduct 
hy -rhioh the principal recognizes and tacitly acquiesces in the 
existence of such authority or by bestowing on the agent rv^ers and 
responsibility of such magnitude, as, for instance, In the eene: 
manager ent of a business, as to involve ouch e snt as a 
neoessary incident to the execution of the agency." In t 
p. l**;o, it is saidt "As a general principle, where it is essential 
to the proper transaction and carrying on of the business oo- lttsd 
to the agent, as where the extent of the agent's duties makes such 
assistance necessary, the acent has imnlied authority to appoint a 
subagent." In cloho iutger3 ?lre I * v. J> ureka sawmill Go. , 
1R1 So. p. 831 » the oourt 3aid: "And it has been held, as a cener 
Principle* that where aubagents are necessary to the prooer 



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transaction and carrying on of th© "business 1 to the aeent, 
the latter has implied authority to appoint subaserts. ,? 

Applying the foregoing rules of la'.? to the evidence -sost 
favorable to the plaintiff, it is our opinion that the plaintiff 
made a prima facie case of his being duly employed by "orris, as a 
-.uly authorized agent of the defendant in that behalf. 

The defendant contends that even If authority to hire was 
proven, the trial court was required to alio" the motion because 
no damages were proven. It is bm« that the or nt ioe3 not 
allege and the evidence does - the term of employment • 

:ver, we oonsider it sufficient to say that for a breach of the 
contraot the plaintiff would be entitled to at least. -sal 
damages, ( Doyle v. School Directors , 5* Ill.App. fi*' 1 ?), and that 
the question of the allowance of any subotanti A* is 
not before us. 

Por the reasons indicated the Judgment of the trial court is 
reversed an1 the cause is re anded for a norr trial. 

Reversed ar .-^d. 



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STATE OF ILLINOIS, 

APPELLATE COURT, 

FOURTH DISTRICT, 

October Term, A. D. 1948 




FEB 231949 

FOURTH DISTRICT OF lfc.Li 




TERM NO. 48-0-4 



DENNY V. HASSAKIS, 

Plaintiff -Appellee, 

-vs- 

HARRIET HASSAKIS, 

Defend ant -Appellant 



AGENDA NO. 5 



Appeal from the 
Circuit Court of 
Jefferson County, 
Illinois. 




BARDENS, J. 



3 37I.A. 8 1 



Plaintiff -Appellee, Denny V. Hassakis (herein- 
after called plaintiff) brought suit for divorce against Defend- 
ant-Appellant, Harriet Hassakis (hereinafter called defendant) 
in the circuit court of Jefferson County, Illinois on March 7, 
1947, alleging that she had been guilty of extreme and repeated 
cruelty towards the plaintiff during the time of their married 
life. On motion of defendant the complaint was dismissed on the 
grounds of insufficiency in that plaintiff did not charge any 
specific acts of cruelty, together with the dates and places 
on which and at which they were supposed to have occurred. By 
leave of court an amendment to the complaint was filed by 
plaintiff by which this objection was overcome. Answer to the 
complaint and amendment thereto was filed by the defendant, 
as was also her counter-claim seeking separate maintenance and 
support. Plaintiff filed his answer to defendant's counter- 
claim, and reply of defendant thereto was filed. On the 
issues thus formed the cause was heard before the court, with- 
out a jury, on November 12, 1947 and thereafter, to-wit, on 
January 12, 1948, the court made and ordered to be made effec- 
tive as of the date of filing, which was on February 2, 1948, 
a decree in and by which it was found that the defendant "had 



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been guilty of extreme and repeated cruelty during the time of 
their married life in that she struck the plaintiff in the 
early part of 1939, at their home on north 13th street, Mt. 
Vernon, and at the same time and place attempted to strike 
the plaintiff with a knife; that the defendant called the 
plaintiff obscene and vile names; hit him with a shoe, scratched 
his face, and threatened to take his life; that on or about the 
time of the separation of the parties the defendant struck the 
plaintiff and threatened to take his life with a knife." The 
decree further found that the plaintiff was entitled to the 
relief sought by his complaint, and ordered and adjudged that 
the marriage between the plaintiff and defendant was dissolved 
as in the statute in such cases made and provided. 

Defendant brings the matter to this court and, 
among other errors charged, contends that the court erred in 
denying defendant's motion for leave to amend her counter- 
claim to ask for an adjustment of property rights. Prom the 
record it appears that the property involved consists of an 
87 acre farm, the home property located on north 13th street, 
Mt. Vernon, on which premises are located both a large and 
small house, and that title to all of this property is in 
joint tenancy; that the parties own, as tenants in common, a 
certain described vacant lot, and that title to a lot and the 
building thereon, occupied as a tavern, which was acquired by 
the plaintiff prior to his marriage with the defendant, stands 
in the name of the plaintiff. We are of the opinion that the 
trial court did not abuse its discretion in denying defendant's 
motion for leave to amend her counter-claim, as above, for the 
reason there is no showing why the defendant did not ask for 
a property settlement in her original answer or, at least, ask 
leave to amend in this respect before the date on which the 
court announced its ruling. Furthermore, it does not appear 
that at the time of making this motion there was any tender 
of the amendment proposed to be made. Fortier v. Fortier 320 

111. App. 626. 

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Defendant further charges that the court erred in 
finding the equities with the plaintiff and in granting plain- 
tiff a divorce; that the plaintiff, as a matter of law, failed 
to prove any ground for divorce as provided by statute; that 
the finding and decree are against the manifest weight of 
the evidence, and that it was error to deny, for want of 
equity, the relief sought by the counterclaim of defendant. 
In support of her contention that the plaintiff, as a matter 
of law, failed to prove any ground for divorce as provided by 
statute defendant cites and relies upon the rule announced in 
the case of Whitlock -v- Whitlock, 268 111,, 218. In our 
opinion the instant case is not unlike the case of Podgornik 
-vs- Podgornik, reported in volume 392 111, at page 124, where- 
in it is stated: "The acts of adultery and cruelty alleged 
to have been committed by appellant were testified to by 
appellee and denied by appellants, There was some rather un- 
convincing evidence which tended to corroborate each of them. 
The decree for divorce having been entered by the chancellor 
upon conflicting testimony as to the facts and findings on 
which it was based, we would not be justified in reversing 
that part of the decree which is dependent upon the weight 
and credence to be given to the testimony of the parties." 
Inasmuch as the holding in the podgornik case, supra, so far 
as relates to the degree of proof required, does not conform 
to the rule laid down in the earlier case of Whitlock *v-> 
Whitlock, supra, we do not feel bound by the holding in the 
latter mentioned case. In the case at bar the findings' of 
the chancellor are d ependent on the weight and credence to be 
given to the testimony of the parties and therefore we would 
not be justified in reversing the decree for divorce. 

We find no reversable error and the findings and 
decree of the trial court are, accordingly, affirmed. 

Affirmed. 
Culbertson, P. J. and Scheineiman, J. Concur, 
(Publish in Abstract Form, only) 

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flflMBB OP ITJJCHOIS 
APJ*KUATK OmmT THXHD DISTRICT 

February Terra, a.d. 1949 



Oimeral mo. 9622 



John Turner, ot &!., 

Plaintiffs,) 



"lln King, et al., 

Defendants. ) 

f § ) 

John Warner, Jr., ) 

Appellee, ) 



vs. 

'.inifred w. ftogers, 



) 
Appellant. ) 



Apenda Ro. 8 

O O » X«r*e «c^ \j 

Appeal fron 

Circuit Court of 
Dewltt county 




heat, J. 



This Is an appeal from a decree of the Circuit Court 
of De*fttt County, Illinois, entered April 12, 1948, appoin- 
ting John earner, Jr. as a co-trustee of the trust estate 
created by the will of Clifton H. !!oore, deceased. 9 li 
latter died April 29, 1901, a resident of said county, 
seised of a large amount of real and personal estate 
wlilch now conprisss the trust estate. The bulk ot the 
estate now consists of farm lands, 14,447.06 acres in 
Illinois, 5, 382. 44 acres in Iowa, is, 700 acres in Kansas, 
mo acres in Missouri, and H,640 acres in Nebraska. The 
trust estate was valued at more than ''3, 000, COO. -93 in 1926 
and is now valued at about twice such amount. 









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At the time of his death, testator left hits survi- 
ving his widow, a son Arthur 'core, and five grandchildren, 
being the children of his deceased daughter Winifred ? !oore 
vjarner, who was the wife of Vespasian smrner. The son, 
Arthur "oore, died U November, 1901, leaving no children. 
Ww daughter, Winifred ^oore arner, had five children: 
Vesper Warner, now deceased with no descendants; John 
v^-rner, who was a trustee and who died December 18, 1945, 
leaving as his sole descendant John Warner, Jr, (petitioner- 
appellee herein); Clifton H* tsarner, who is living and has 
no descendants and who is one of the trustees j Frances . 
Crist, who is living, has no descendants, and who is one 
of the trustees; and Winifred . o rers, who is living 
and who is one of the trustees and who has one child, 
Elizabeth Dowdall Hyatt, the latter having three minor 
children living* CllfSon s ?oore Warner Kyatt, Elisabeth ?. 
Hyatt, and John Kenneth Hyatt, Jr* , 

Vespasian Warner, a son-in-law of testator, and Arthur 
KMN were named as executors of the will and as testamentary 
trustees of his trust estate. Arthur Moore died In 1901, 
and Vespasian Earner continued to manage the trust until 
his death on Harch ,'51, 1925. The will provided no method 
of naming successor trustees. In a Circuit Court proceeding 
in 1925 a consent decree was entered on April 6, 1925, pur- 
suant to stipulation, which provided for the appointment 
as co-trustees the four then "living children of Winifred 
Moore earner and Vespasian darner, being Clifton M. warncr, 
John Warner, Winifred w. Rogers, and Franoes f. Crist. 
The decree provided that Clifton M. lamer should be the 
managing Trustee of the estate, subject to the order and 

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direction of his eo-tntstses and the Court. The four 
co-trustees assuaed their duties as such and continued 
until December 18, l'H5, when John 'mmer, oo- trustee, 
died, thus leaving Clifton H, "darner, "'inifred w, Rogers, 
and Frances *• Crist as the surviving eo- trustees. 

these tJireo persons and petitioner-ap;>ellee, John W, 
araer, Jr., are the present life beneficiaries of the 
trust estate, John -mmer, j ? . taking the share of his 
deceased father, John "arner. Twenty years after the 
death of the survivor of the said three erandchildren, 
tlie real estate is to be sold and the trust estate is to 
be divided, v*Qr stirpes, among the then heirs of the testa- 
tor. The petitioner, John earner, Jr., and Elizabeth Pow- 
dall Hyatt are thus contingent remaindermen, as they will 
share the trust oorpus if they are in being at the end of 
such twenty-year period. Otherwise the entire trust estate, 
as the family relationship now stands, will go to their 
respective heirs, per stirpes . 

On Jieptenber 6, ISM?, John sarner, Jr., son of the 
said John \3amer, who, in his lifetime was a co-trustee, 
petitioned for his appointment as a oo- trustee* in which 
petition he set up part of the factual history aforesaid, 
alleged that he was now 41 years old and a life-long resi- 
dent of Clinton, Pe-«itt County, minois; that the managing 
trustee, Clifton ?!. earner, has been a resident of such 
county during his trusteeship, and that the trustees, 
Frances W. Crist and Winifred w. Rogers, were not, at the 
tine of their appointment, residents of the ' tate of Illi- 
nois and have naver since been, being residents of California 
and Rhode Island, respectively. The petition further alleged 

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that; a majority of the trust realty is located in Illinois; 
tliat petitioner la familiar with the property in Illinois 
ami other states; that petitioner is in every way qualified 
to be a trustee and to take the place of his deceased father 
as such; and that it will he for the best interests of the 
estate that he be so appointed. 

'.?o this petition, inifred *, Rogers, as a co-trustee 
and as a beneficiary, filed objections on the ground that 
no proper showing is made for opening up the 1925 decree; 
that petitioner is an important officer and stockholder in 
the John Warn** Bank of Clinton, tllinois, and, as such, 
has the burden of attending to the affairs of said bank 
which engrosses his attention to such an extent that he 
will be unable to give ade<|uate attention to the duties 
of ft trustee; that a&id bank is the depository of the 
funds of said trust estate and conflicts of Interest may 
arise therefrom, and that there are other good and valid 
reasons for denying the prayer of the petition, the 
petitioner filed a reply to these objections, and the 
guardian ad litem for the minor defendants, Clifton tfoore 
Vr'amer Hyatt, Elizabeth T. Hyatt, and John Kenneth iiyatt, 
Jr»$ filed ft formal answer to the petition. The co-trustees, 
Clifton H« Warner and Frances W. Crist, entered no appearanoe 
and filed no objections or pleadings of any kind, on these 
pleadings the cause was heard by the Court, on April 1 , 
1948, the Court entered an order appointing the petitioner 
John tifcmer, Jr. as co-trustee with full power and authority 
heretofore given to the other co-trustees under the 1926 
decree, which order also provided that the trustees should 
within 45 days file with the Clerk of the Court a written 

4. 



7 



instrument designating a bank other than the John warner 
Bank of Clinton, Illinois , as depository for the funds 
of said trust estate. This appeal is taken by inifred 
W, Rogers from the said order of April IS, 1948. 

Ihc evidence in the case consisted of the testimony 
of the petitioner, John mrner, Jr., and that of the 
objector, Winifred w. Holers, together with certain docu- 
mentary exhibits. John ~%rner, Jr. testified that he is 
41 years old and a life- long resident of Clinton, Illinois; 
that he attended Culver Military Academy, Amherst College, 
and Harvard Craduate School of Business Administration; 
that he served in the $aval r*urcau of < J 5rdnanee during the 
ear and «as discharged a lieutenant Commander; after the 
ear he returned to the John varner Bank at Clinton as 
Assistant Cashier and became Cashier upon the death of 
his father, December 18, 1945 j the bank has five officers 
including three assistant cashiers; that he »s employed 
in the office cf the C. H. "oore trust estate for a year 
and a half and has a general familiarity with the estate 
and with the tenants; that he owns 160 acres of land and 
that he and his mother own Jointly about lOOO acres, all 
Ml 3>e^itt county, which he manages; he also owns and manages 
two business buildings; that he desires to be appointed 
trustee and will arrange to take time to oonsult with the 
managing trustee whenever he wishes, and that it will not 
interfere with his bank duties; that he would be able to 
go to any of the farms in Iowa, Illinois, Kansas, hio, 
and Missouri, at any time it would be necessary; that 
Winifred i, hogers, oo- trustee, lives in Newport, ilhode 
Island, and Frances W. Crist, co-trustee, lives in Oakland, 

6. 



California; th?it note of the ta-ustses except Clifton . 
Earner and John earner, father of petitioner, have lived 
in Illinois for a musber of years} the aaltt office of 
the managing trustee is in Clinton, Illinois, and the 
trust funds have been kept in the John Warner Bank since 
the decree of 1925. Petitioner owns 3?^ of the stock 
which had been owned toy his father oontlRUOtttly during 
the period of his trusteeship? the managing trustee, 
Clifton 8. mroer, owns one-half of the stock of the 
hank and is a bank director; the deposits of the bank 
run between four and a half to five million dollars; 
the deposits of the trust estate amount to about 1$ of 
total deposits; no Interest is paid on any bank deposit. 

It Is first urged that no proper showing was made 
for the appointment of another co- trustee and that the 
Court had no power to make the appolntsent of another 
co-trustee upon the death of trustee John Warner. 
Courts of equity have broad powers in the supervision 
of trust estates. Such Courts may, and ordinarily will 
appoint a trustee where the astir; -<tee dies la office, 
The fact that there are surviving trustees available to 
execute the trust does not deprive the Court of its power 
to appoint a new trustee to replace the one who had died. 
<<$o C.J. 591) In this case, two of the three remaining 
trustees are and have been for many years non-residents 
of the '.tate of Illinois. Contrasted to this, the peti- 
tioner, age 41 at the time of the hearing, has been a 
life-long resident of Illinois, his home is at the center 
of trust activities, he is familiar with the trust estate, 
and is experienced in farm rsanagenent and business affairs 
generally. The trial court, in a well-considered written 

6. 



/J 



opinion* made these comments j n !?one of the parties 
interested in said estate^ filed any pleading in oppo- 
sition to the allo»s&nee of said petitioner except tlie 
etirrent beneficiary, inifred W. Kogera. Ihe guardian 
ad litem for the children of ::ii«abeth Hyatt filed a 
general answer praying for strict proof. # • • It will 
toe noted tliat tlie record ia silent as to the respective 
ages and the present conditions of health of the throe 
surviving co- trustees appointed under the original decree* 
but it appears from said decree that eald John warner, Jr. 
wan a wlnor at the time of its entry (1926) and that the 
surviving 00- true tees were adults. » * * in Yatea v. 
yatea , 258 111. 66 at 73, the Court said; M/pon an appli- 
cation being made to an Knglish Chancery Court to appoint 
a remainderman aa trustee, the chancellor said: ft I can 
not appoint a peraon entitled in remainder, aa hia intereat 
la somewhat opposed to that of the plaintiff. It would be 
for hia advantage to lay out trust money in asking improve- 
ments on the property instead of making accumulations for 
the benefit of the infant."'" In the instant case the 
trial court then said: "If it would be to the advantage 
of the remainderman to lay out trust funds in improvementa 
on the property instead of making accumulations, it would 
likewise follow that it would be to the advantage of the 
present current beneficiaries to refrain from making repaira 
of a permanent character, becauae the expense would reduos 
the net income to be diatributed annually. ♦ • • From the 
atipulation entered into by the then (1925) current benefl- 
ciarlea, it appears that they agreed upon a polley whereby 
each beneficiary should be appointed co-trustee in order to 

7. 



be in a position to personally participate in the forma- 
tion of the policy and ggntval management of said trust. 
In view of the pel icy adopted by the then current benefi- 
ciaries at ttie time the original decree was rendered, no 
one of them is now in a position, in equity, to object to 
the appointment of the petitioner as such co-trustee, 
present co-trustees constitute a majority and they are in 
a position to fully protect the rights of the surviving 
current beneficiaries as opposed to the interests of the 
remainderman. ■ 

e hold that the court in equity had the no>ver, in its 
discretion, and for the best interests of the trust estate, 
to appoint a i Manistee to succeed John Earner, co-truotee, 
leocased. There remains the objection of -inifrecl . ogers 
tliat conflicts of interest way arise in the duties of peti- 
tioner John Harner, Jr. as co- trustee and as an official of 
the John mrner Bank of Clinton. 

tt is first noted tlmt the decree of 1988 recites as 
follows: H *hat <iuring the tine between the date of the 
death of the said Vespasian vamer and the appointment of 
a trustee herein the complainants have been collecting and 
depositing the rentals of said trust estate as received by 
way of check or otherwise in the John turner Bank of Clinton, 
Illinois, to the credit of said trust estate * • • and 
that said action of said complainants is hereby apjiroved and 
confirmed by the Court.* It should be kept in mind that 
the complainants referred to were Clifton '-. *»mer, who 
was then and now is a stockholder in such bank, and John 
tifcmer, who then was a stockholder of the bank and so conti- 
nued to be until his death in 1946. This 1985 consent decree 

8. 



mused said John earner as eo- trustee and Clifton . 
earner as Managing trustee regardless of their interest 
in the bank. From 192S to 1948, the date of death of 
John Turner, there was no objection nade by anyone as 
to the us© of suoh bank as a depository or to any con- 
flict of interest between Clifton . arner and John 

smr as eo- trustees and as stockholders in the bank. 
Xn view of the policy adopted by the interested parties, 
a possible objection to the continuing acting of Clifton 
. earner because of his bank connection would be without 
nerit, and it follows that such objection to the qualifica- 
tion of the petitioner John Warner, Jr. is likewise without 
n«rit. i a taajorlty of the trustees so desire they may at 
will select another bank as depository. If prejudice is 
shown, any interested party may obtain relief at any tirae 
by application to the Court. hold that the trial court, 
under the pleadings and the factual situation, was not 
Justified in including in his decree the follow!? 
the trustees in this cause, including the petitioner herein, 
shall file in the office of the Clark of the Court within 
forty-five days from the date hereof, a written designation 
of a bank other than the John 'mrner Bank of Clinton, Illinois, 
as the depository for the funds of s«ld trust estate." 

It is urged tt*t petitioner has assigned no cross-errors 
nor filed a cross-appeal and that therefore this portion of 
the decree cannot be considered. Itttti is not the law. Tn 
leldema n v. interstate ■'r.-.ng. linos , 401 Til. 172, the 
rourt stated that it was not necessary to assign oross-error 
to preserve a point relied upon by appellee. 

Xn our opinion the trial court, in the exercise of its 

olianccry Jurisdiction and for the heat Interests of the trust 

2 



estate, pro}H*rly exercised its power in the appointment 
of »Tohn ?arner, Jr. as oo- trustee, but v>ent beyond the 
realm of the issues and contrary to the factual situation 
in ordering the discontinuing of the bank in question as 
depository for the trust estate. 

The judgment of the Circuit Q>urt i s affirmed in part 
and rnvernad in part, with directions to nodify the decree 
in accordance with the opinion. 



A.f firmed in part and reversed 
in part, with directions. 



/* 













Q-en. No. 10209 



Agenda No. 25 



IN THE 
APPELLATE COURT OF ILLINOIS 
SECOND DISTRICT 



\i V) 1 



OCTOBER TERM, A. D. 1947 



3 37I.A.L9 



^ 



JAMES PALEFRONE, FLORIAN 
KOTOWSKI, ARNOLD SLETTA, 
OSCAR JACOBS and PETER 
(PETE) PADDILLA, 

Appellants 

vs 

EVERETT J. SHELTON and 
GLENN GAGE 

Appellees 



APPEAL FROM THE 
CIRCUIT COURT OF 
LaSALLE COUNTY 



1 



Dove, J. 

On the evening of December 7, 1944 the plain- 
tiffs were riding as paid passengers In a bus returning 
to their homes in Ottawa from the shipyard in Seneoa. 
They were sitting at various places along the left hand 
side of the bus at the time the bus was involved in a 
oolllslon with a truck owned by one of the defendants 
and driven by the other defendant. Upon a trial of the 
issues, the Jury returned a verdict finding both defendants 
not guilty. A motion for a new trial was overruled and 
the record discloses that on Maroh 28, 1947 the following 



-1- 






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order was entered, viz: 

"Now on this day come the parties hereto by 
their respective attorneys and the motion of 
the plaintiff for a new trial coming on for 
hearing, and the court nov, being fully advised 
in the premises, overrules said motion and a 
new trial is denied by the court. Thereupon 
Judgment is thereupon rendered herein in favor 
of defendants against the plaintiff on the 
verdict of the jury, the jury having found 
the defendants not guilty." 

Thereafter a notice of appeal was filed on 
June 19, 1947 and on August 9, 1947 the transcript of the 
record was filed in this court. On September 9, 1947 
the abstract of record and appellant's brief and argument 
wereyiled. On September 19, 1947 appellee's brief and 
argument was filed herein and at the October term 1947 
the cause was argued orally and taken under advisement. 
At the conclusion of the oral argument it was 
suggested to counsel that no final judgment appeared in 
the record. Thereafter on December 15, 1947 appellants 
filed in this court their motion for leave to file a cer- 
tified copy of an expanded Judgment rendered in this cause 
by the circuit court of LaSalle County on November 28, 1947. 
Counsel for appellees objected to this and filed herein 
suggestions in opposition thereto. 

It appears that on November 28, 1947 the oirouit 
court of LaSalle County entered the following order in this 
oause, viz: 



-2- 



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"This matter coming on again upon the suggestion 

of the Judges of the Appellate Court of Illinois 

for the Second District that in their opinion the 

recitations in the judgment order, as the same 

appears in the record and files of this cause in 

this Court, are incomplete and that the same 

should be enlarged or expanded, and a certified 

copy of the enlargement filed with the Clerk of 

the Appellate Court, it is now considered by this Court 

that the suggestion of the Judges of the Appellate 

Court shall be adopted. 

IT IS THEREFORE ROW ORDERED that the Clerk of 

this Court rewrite upon the records of this Court 

the Judgment order, so that the same shall read 

as follows: 

'On motion of the defendants, IT IS ORDERED 
that judgment is now rendered upon the 
verdict of the jury finding the defendants 
not guilty, heretofore returned and filed. 

"Whereupon it is considered by the Court 
that the plaintiffs take nothing by their 
aforesaid^ action, but that the defendants 
go hence without day and do have and recover 
of and from the plaintiffs their legal costs 
and charges (if any) in this behalf expended 
and have execution therefor.' 

ENTER: 

Dated: November 28, 1947. FRANK H. HAYES 

Judge of the Circuit Court 
of LaSalle County. •» 

The law is well settled that an appeal is per- 
fected when the notice of appeal is filed in the lower court. 
(162 East Ohio Street Hotel Corp. v. Llndhelmer, 368 111. 
294; Francke v. Eadie, 373 111. 500). As a general prop- 
osition the Jurisdiction of the circuit court oeased, and 

-3- 



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the jurisdiction of this court attached when the notice 
of appeal was filed. This court has Jurisdiction to review 
the questions which arose upon the record as it existed on 
June 19, 1947 when the notice of appeal was filed in the 
oirouit oourt. ('Voloott v. Village of Lombard, 387 111. 621 ; 
Simon v. Balasic, 316 111. App. 442; Bollaert v. Kankakee 
Tile and Brick Co., 317 111. App. 120; Dunwoody and Co. v. 
Washington, 315 111. Arp . 54). 

The order entered by the circuit court on November 
28, 1947 was an ex parte order, entered at the request of 
and on motion of appellant without notice to counsel for 
appellees and entered long after the appeal to this court 
had been perfected and after this cause had been submitted 
upon the record as it then existed and taken under advisement 
by this court .j) 

For want of a final Judgment, this appeal must be 
dismissed. 

Appeal dismissed. 










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44471 

WILLIAM A. HOLLAND, 



Appellee, 



CHICAGO TRANSIT AUTHORITY, a 
Municipal Corporation, 

Appellant, ) 



APPEAL FROM 
SUPERIOR COURT 
COOK COUNTY 






5 3 37I.A.100 

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT. 

William A» Holland filed a two count complaint against 
the trustees of the corporation doing business as the 
Chicago Surface Lines. The first count alleged that on 
March 26, 1945 plaintiff was a passenger on one of the 
defendants' westbound Lawrence avenue streetcars; that 
defendants by their employees and servants then and there 
in charge of the street car, then and there so negligently 
and improperly ran and operated it that as a direct result 
and proximate consequence, it was so run, managed and 
operated that he was thrown with great force and violence 
and injured; and that he was then and there using due care 
for his own safety. The second count charged that the 
defendants then and there negligently, carelessly and 
improperly ran, managed and operated the street car in that 
there was an obstruction, unevenness or protrusion of metal 
or other- substance over and above the surface of the plat- 
form of the vestibule of the street car, and that in attempting 
to walk over the floor of the vestibule to proceed into the 
body of the car plaintiff fell or tripped on the obstruction, 
unevenness or protrusion of metal or other substance, and that 
as a direct result and proximate consequence of such negligence, 
he, who was then and there using due care and caution for his 



' 



2. 

own safety, was thrown with great force and violence upon 
and against the floor of the vestibule of the ca^, resulting 
in the injuries complained of. Defendant denied the material 
allegations of the complaint and alleged that the plaintiff, 
in violation of an ordinance of the City of Chicago making 
it unlawful for any person to board or alight from a street 
car or vehicle while it is in motion, was then and the^e 
boarding the street car while in motion, prior to the trial 
the Chicago Transit Authority, a municipal corporation, was 
substituted as defendant. The t"ial resulted in a verdict 
finding defendant guilty and assessing damages at $2,500, 
A motion for a new trial was overruled and judgment was enter- 
ed on the verdict, from which defendant prosecutes this 
appeal. 

Defendant asserts that Count 2 is not supported by 
any evidence. The negligence charge in this count is 
confined to the employees of defendant who were then and 
there in charge of the operation of the street car, and who 
were alleged to have then and there negligently run, 
managed and operated the street car. plaintiff's evidence 
as to negligence is confined to the alleged existence of 
a bolt or screw protruding from the floor of the vestibule. 
There is nothing in the record to shcrc? that the condition 
causing the injuries was brought about then and there by the 
negligent running, management and operation of the street 
ca 1 " by the employees who were then and there in charge of 
its operation. Plaintiff makes no contention that defendant 
was guilty of any negligence other than that specifically 
alleged in Count II. Sec. 68 of the Civil Practice Act 
provides that where there is more than one count and an entire 



3. 

verdict is rendered thereon, the same shall not be set aside 
or reversed on the ground of any defective count if one or 
mpre of the counts be sufficient to sustain the verdict. 
There was a general verdict and evidence to support the 
allegations of Count II. 

Defendant contends that the judgment is against the 
manifest weight of the evidence to prove proximate cause and 
due care of plaintiff, as alleged in Count II. Plaintiff 
replies that the Judgment is amply supported by the manifest 
weight of the evidence; that both proximate cause and the 
exercise of due care by plaintiff were proved; that whether 
there was a violation of the safety ordinance was a question 
of fact for the jury* that the testimony of defendant's 
witnesses was so self-contradictory, inconsistent with the 
established facts, unreliable, conflicting, incoherent and 
improbable as to be irreconcilable; that the question of the 
preponderance of the evidence was for the jury; that where the 
evidence is conflicting, the verdict of the jury will not be 
disturbed even though it may be against the apparent weight 
of the evidence; that although the court may entertain a 
contrary opinion to that of the jury, the verdict will not be 
disturbed unless clearly unwarranted by the evidence; and 
that notwithstanding the verdict may rest largely upon the 
unsupported testimony of the plaintiff, which is denied by 
the witnesses of the defendant, yet such verdict cannot be 
said to be against the manifest weight of the evidence where 
plaintiff's evidence is sustained by the probabilities and 
the witnesses of the defendant have contradicted each other 
in many respects. 



4. 

Plaintiff was 34 years old, 6 feet tall and weighed 
185 pounds. He wore rather thick glasses and was employed 
as a chemist. Prio^ to his employment he attended Armour 
Institute, now known as the Illinois Institute of Technology, 
obtaining a master's degree in 1944. His salary was S90 
for a five day week. He lived at 4822 North Kimball Avenue 
and his place of employment was in the 2600 block on North 
Crawford Avenue. To get the^e from his home he usually took 
a westbound Lawrence avenue street car at the northeast 
corner of Kimball and Lawrence avenues, traveling Crawford 
avenue and then t^-ansfe^ing to a southbound car. He was 
familiar with the intersection of Lawrence and Kimball 
avenues. He lived on the west side of Kimball avenue, about 
100 feet no^th of Lawrence avenue. On the morning of the 
mishap he left his home at about 7:35 a.m. in order to begin 
work at 8:30 a.m. It was a clea 1 " day. He wore an overcoat 
and oxford shoes. He stood on the sidewalk on the north 
fide of Lawrence avenue 30 or 40 feet east of Kimball avenue. 
About half a dozen persons we""e waiting at that corner for 
the westbound street car. As the street car cane from the 
east, plaintiff walked out to where it usually stopped. He 
testified that it stopped a little to the west of whe-"e he 
was standing and that he stepped ove~ to board it; that he 
heard the conductor say, "Step lively"; that when the car 
came to a full sto^, he stepped on the first step, then on 
the platform; that he was the first person to board the car; 
that when he made his first stop on the platform and was 
reaching out to pay his fare, he caught the heel of his 
left shoe on something that was sticking up from the floor, 
causing him to stumble, lose his balance, weave from side to 



5. 

side and fall with his legs under him; that the force of his 
weight falling on his legs broke the bones in his left ankle 
with an audible snap; that he fell with his legs under him 
in a fulcrum position; that as he sat on the platform he 
observed a bone protruding from the inner part of the ankle; 
that he did not see the bolt or screw on boarding the car 
because at the time he was reaching out to pay his fare; 
that he did no J ; recall seeing any passengers on the rear 
of the platform on boarding the car; that as he fell and sat 
on the platform, the passengers who had been waiting stepped 
to the platform and walked around him; that the conductor 
asked him whether he was hu^t, which he answered in the 
affirmative; that he asked the conductor if he heard the 
bones snap and pointed out the bolt or screw to the conductor; 
that on receipt of this information the conductor left him 
sitting on the floor of the platform to take the names of 
witnesses and to empty the street car of passengers; that 
thereafter the conductor assisted him off the car and 
accompanied him to a store on the corner; that the motorman 
drove the empty car away; that the conductor remained with 
plaintiff until the arrival of the police; that the 
conductor did not "bawl him out," or say to him "why did you 
jump on the street car"; and that witness did not jump on 
the street car, make two jumps or brush aside or against a 
woman as he boarded the car. 

Four witnesses testified for the defendant, namely, 
the conductor, two women who boarded the car after plaintiff, 
and a young man who was a high schoool student at the time 
of the mishap and in junior college at the time of the trial, 
who testified that he was standing on the rear platform as 



6. 

the car approached the place where plaintiff boarded it. The 
motorman did not testify. The conductor testified that 
the motorman was sick at the time of the trial; that he had 
been off for a "few months"; that "they tell me he is serious- 
ly sick now* j and that "he had a broken ankle or something, 
but I haven't seen him for over two months." All of defend- 
ant's witnesses testified that plaintiff jumped on the street 
car while it was in motion and before it stopped and that he 
fell on the platform. Ye agree with defendant that the 
testimony of these witnesses is supported by the probabilities 
which arise from the manner and force of the fall. The theory 
relied on by plaintiff was that he boarded the car while it 
was standing still; that when he reached the platform he 
could reach the rail around the conductor with his hand; that 
he extended his hand to pay the conductor his fare and took 
one step on the platform; and that when he did this he caught 
the heel of his left shoe on a bolt or screw which protruded 
a half inch more or less and about a foot or 14 inches from 
the edge of the platform, which caused him to stumble, lose 
balance and fall in a sitting position in front of the con- 
ductor with his legs under him, with such force as to break 
the bones in his left ankle with an audible snap. 

The conductor and the student denied that there was 
any screw or bolt protruding from the platform of the car. 
The conductor also denied that plaintiff said anything to him 
about a bolt extending from the floor of the car. Plaintiff 
Is not supported by the testimony of any witness. If the car 
was standing still when he boarded it, as he testified, his 
loss of balance and weaving from side to side. was not due to 
any motion or movement or stopping of the car. It is true, 
as pointed out by plaintiff, that the versions of the occur- 



'■ 



7. 

rence, as recounted by defendant's witnesses, varied. As 

stated by Starkie on Evidence, Tenth American Edition, page 
830, partial variances in the testimony of different wit- 
nesses, on minute and collateral points, are of little 
importcnoe unless they be of too prominent and striking a 
nature to be ascribed to mere inadvertence, inattention or 
defect of memory; and that it so rarely happens that wit- 
nesses of the same transaction perfectly and entirely agree 
in all points connected with it, that an entire and complete 
coincidence in every particular, so far from strengthening 
their credit, not infrequently engenders a suspicion of 
practice and concert. The important point on the issue of 
due care and proximate cause was whether plaintiff boarded 
the street car while it was standing still or in motion, 
and as to this all of defendant 1 & witnesses testified that he 
boarded the car while it was in motion and fell on the plat- 
form. 

It is true, as stated by plaintiff, that whether 

there was a violation of a safety ordinance was a question 
of fact to be determined by the jury. "The mere fact that 
plaintiff was violating the lav/ at the time he was injured 
wi^l not bar his right to recover unless the unlawful act 
in some way approximately contributed to the accident in 
which he was injured." Lerette v.. Director General of 
Railroads, 306 111. 348: Russell v. Rich ardson et al ., 302 
111. App. 589. It is well to recall what our Supreme Court 
said about the duty of the Appellate Court in determining 
whether a verdict is against the manifest weight of the 
evidence in Chicago City Railway Co . v. Mead, 206 111* 174, 
181: 



8. 

"Section 61 of the Practice Act provides that ex- 
ceptions taken to the decision of the court overruling a 
motion for a new trial shall be allowed, and the party 
excepting may assign for error any decision so excepted to. 
The duty of considering and deciding upon any error so as- 
signed is entrusted to the Appellate Court. Those courts 

a HL a *-S ar ^ of th f J ud i£ial system of the State eaually 
with the jury and the trial judge, and must discharge their 
duty, not according to the judgment of others, but accord- 
ing to their own judgment. The law commits to the sound 
judgment of the Appellate Court the question whether the 
trial court erred in overruling a motion for a new trial 
on the ground that the verdict is against the weight of the 
evidence. At the common law the trial of an issue of fact 
was by judge and jury, the judge stating to the jury the 
issues and what evidence had been given in support of them, 
and summing up the whole case. Section 51 of the Practice 
Act provides that the court shall only instruct as to the 
law of tne case; but trial by jury does not imply a trial 
without a judge having a supervisory cower over the ver- 
dict, or without a court of review guided and controlled 
by its own conscience and judgment in passing upon questions 
committed to it by the law. If a verdict and judgment are 
clearly against the weight of the evidence, a new trial 
should be awarded by the Appellate Court and the issues 
submitted to another jury." 

See also Volgt v. . The Anglo-American Provision Co ., 202.111. 
462; and White v. The City of Belleville . 364 111. 577. 
From a careful reading of the transcript of the evidence, we 
are convinced that it is our duty to reverse the judgment 
and remand the cause for further proceedings on the ground 
that the judgment is against the manifest weight of the 
evidence on the issues of proximate cause and due care. 

Defendant also urges that the court erred in giving 
instruction No. 14, which told the jury that a common carrier 
of passengers "is responsible for the slightest neglect 
resulting in injury to the passenger." In Live Stock National 
Bank of Chicago. Admr. of Estate. of Ignazlo Migllorisi v. 
Richardso n, et al .. 504 111. App. 591, reported in abstract 
form, we said: "We are of the opinion that the part of the 
instruction which told the jury that the carrier is respon- 
sible for the slightest neglect was calculated to minimize 
the non-insurer rule and to encourage the jury to extend the 
highest degree of care rule to the prejudice of defendants." 



9. 

Plaintiff asserts that there was no error. in. giving. this 
instruction, citing Galena & Chicago A. R. R. Co . v. Fay . 
16 111. 558; Chicago & Alton R. R. Go . v. Byrum , 153 111. 
131 J Chicago C ity Railway Co . v. Shaw , 220 111. 532; Chicag o 
City Railway Co. v. Shreve . 226 111. 530; Van Hoorbecke v. 
Iowa 111. Gas & Elec. Co.. 324 111. App. 88; and Made. lew ski 
v. Richardson, 307 111. App. 669, (Abst.) In Llchtenstein 
v - Fish Furniture Co.. 272 111. 191, the court said that an 
opinion that an instruction is proper or that a statute is 
constitutional, is authority on such instruction or statute 
only as to the objections raised in such cases, and is not 
authority for such instruction or statute when another and 
different objection is raised. In the Byrum case no objection 
was raised concerning the. use of the language "is responsible 
for. the slightest neglect." In Elmore v. Cummings , 321 111. 
Aop. 234, the court analyzed the Byrum case and pointed ou$ 
that it did not approve the use of the objectionable words. 
While the Supreme Court has not had occasion in later cases 
to discuss the use in this instruction of the objectionable 
words, that court has passed upon the use of similar mini- 
mizing words in instructions on the preponderance of the 
evidence and has held. that such instructions should not be 
given. .See Reivltz v. Chicago Rapid Transit Co .. 327 111. 207; 
Teter y. Spooner . 305 111. 198; Molloy v. Chicago Rapid. Tran- 
sit. Co., . 555 111. 164; and Wolczek v. Public Service Co ., 342 
111. 482. The objectionable words could only tend to confuse 
the jury and. on a retrial should not be incorporated in the 
instructions. 

. Defendant also complains of the giving of instruc- 
tion No. 5, which told the jury that if they believed from 



10. 

the evidence that plaintiff became a passenger of the defend- 
ant and that defendant did not exercise the highest degree 
of care reasonably consistent with the practical operation 
and the character and mode of convenience adopted for the 
safety of the plaintiff, and the latter was injured because 

of such failure, "and if you further believe that plaintiff 
was in the exercise of reasonable care for his own safety 
at the time. of the injury, then you should find the defend- 
ants guilty," As this instruction directs a verdict, it 
must contain a correct statement of all the elements necess- 
ary to sustain such verdict. At the time of the injury 
plaintiff was on the platform of the street car where he fell 
with his feet under him. If he was in the exercise of reason- 
able care for his own safety at that time a verdict was 
directed against defendant without reference to care or lack 
of care exercised by him before then in getting on the plat- 
form. It is defendant's theory that he jumped on the plat- 
form while the car was in motion, that in so doing he vio- 
lated the ordinance and that he thereby was guilty of negli- 
gence which was the proximate cause of his injuries. It is 
obvious that under the issues and the factual situation the 
giving of this instruction was improper in that it confined 
the jury in determining whether he exercised due care to the 
time of the injury. 

Defendant states that the court erred in giving 
instruction No. 8 on the subject of damages without prefacing 
it with a statement in substance that if the jury finds the 
defendant guilty they will be required to determine the amount 
of plaintiff's damages. In view of all the instructions given 



11. 

we do not believe that the giving of instruction No. 8 would 
be error. However, on a retrial it would be advisable to 
preface the instruction in the manner indicated. While it 
would be proper to give defendant's refused instruction No. 
22, we are of the opinion that the failure to give it would 
not constitute error. 

For these reasons the judgment of the Superior 
Court of Cook County is reversed and the cause remanded for 
further proceedings not inconsistent with the views expressed. 



JUDGMENT REVERSED AND CAUSE 
REMANDED WITH DIRECTIONS. 



KILEY AND LEWE, JJ. CONCUR. 



;.-;., 






44565 



MARGARET WILLIAMS, 



v< 



Appellee, 



VICTOR A. PIONTKOWSKI and 
CHARLES M. FOX, 

Defendants.. 

On Appeal of 

VICTOR A. PIONTKOWSKI, 

Appellant. 




APPEAL FROM 
SUPERIOR COURT 
COOK COUNTY 









3 37I.A. 101 



MR. PRESIDING- JUSTICE BURKE DELIVERED THE OPINION OF THE COURT. 

Margaret Williams brought a malpractice action against 
Dr. Victor Piontkowski and Dr. Charles M« Fox. A trial 
resulted in separate verdicts finding defendants guilty and 
fixing plaintiff's damages against Dr. Piontkowski at 
32,000, and against Dv, Fox in the sum of "blank dollars." 
Motions by each defendant for a directed verdict for Judg- 
ment notwithstanding the verdict, and for a new trial were 
overruled, and judgments were entered on the verdicts. 
Dr. Piontkowski appeals. For convenience, we will refe^ 
to Dr. Piontkowski as the defendant. 

He is licensed to practiced obstetrics and as a 
chiropractor. He describes himself as a drugless physician 
and treats patients without medicine or surgery. He is not 
permitted to prescribe medicines or to use instruments. 
H^s license to practice in Illinois was issued in 1926. In 
20 years he handled abound 1,500 obstetrical cases. Plain- 
tiff, a young married woman being pregnant, placed herself 
under defendant's care on August 13, 1943 for prenatal' 



care, delivery and postnatal care. From then until February 



-2- 

9, 1944 he examined he 1 " 13 times, finding her normal in all 
respects. When her "waters" ruptured on the afternoon of 
February 22, 1944 he directed by telephone that she go to 
the lalther Memorial Hospital. She was there received and 
examined by the hospital's house physician in obstetrics. 
Between 7:00 P.M. and 2:00 A.M. he examined her five times. 
Her condition remained normal and progress slow. Nurses 
were "in and out all the time." Between these hours defen- 
dant did not appear at the hospital, but kept in touch with 
the hospital by telephone. He was 20 minutes distant 
from the hospital by automobile. 

There was a conflict in the testimony. Plaintiff and 
he 1 " husband stated that defendant did not at any time make 
a pelvimetric or other instrumental examination of plain- 
tiff. He testified that he did. There was testimony that as 
the time for delivery approached, she communicated with 
defendant, and that from the time of her admission to the 
hospital at 4:30 P.M. on February 22, 1944 until 3:30 A.M. 
the following morning defendant left her completely without 
the benefit of his presence or professional advice. At 
2:30 A.M. on February 23, 1944 the fetus was, according to 
evidence plaintiff introduced, alive, but by the time 
defendant arrived at the hospital it was inviable. Defen- 
dant's excuse for his absence was that he was not in a 
position to have gone to the hospital because of office and 
house calls. The house physician last examined her at 2:00 
A.M. on February 23, 1944. At that time he found plain- 
tiff's condition good and the fetal heart sounds properly 
audible. An hour later he said the fetal hea^t sounds 









-3- 

sud-enly ceased. Defendant was notified and arrived at 
the hospital in a few minutes. Defendant testified that 
his examination at the hospital revealed that the child 
had expired; that plaintiff was not yet ready to deliver; 
that the head was not on the perineum; and that the head was 
not engaged. 

Dr» Charles M. Fox, who was called in by defendant, 
testified that he delivered the stillborn child, using 
therein forceps and scissors and that after delivery he 
sewed the cut. Plaintiff testified that some time after 
the delivery she experienced pains, lost control of her 
bowels and had to wear a diaper; that defendant, giving 
after-care, heard he 10 complaints, examined her on three 
occasions and did not prescribe anything. Defendant admits 
examining her, but denied that she suffered or complained 
to him. He states that his examination revealed a slow 
healing of the incision made by Dr. Fox, and that he dis- 
covered an area about the size of the head of a straight 
pin which had not yet properly healed over, but that she 
was otherwise all ^ight. Plaintiff states that his only 
advice to her was the drinking of fruit juices. Plaintiff 
consulted Dr. F^ed A. Paradise, a physician, who examined 
her. She had no control over he^ bowels and had to wear a 
diaper all of the time. On examining her rectum, vagina 
and perineum he discovered that the rectum was torn into, 
that it was wide open, and that the sphincter muscle "was 
gone, cut, torn."' He said that the sphincter is the muscle 
that controls the bowel movement, and that it was not there 
in plaintiff's "functioning because it was torn in two, 
could not contract." He stated that that muscle makes a 



' 






-4- 

figure 8 around the vagina; that the center portion of the 
8 was gone so that the vagina and rectum were one opening; 
that the partition between the vagina and rectum was gone; 
and that there was no sign of any sutures the^e. Dr. 
Paradise operated on plaintiff in a hospital in May, 1944. 
She remained in the hospital a week or 10 days and was 
thereafter laid up at home for a month or two. In the hospi- 
tal the sphincter was repaired. He did not see he"" again 
until just before the trial, when he found that she was 
pregnant.. In his opinion she was 18 years of age. 

Dr» Paradise was also examined as an expert witness. 
He testified that it is customary to take pelvic measurements 
of a pregnant woman in order to determine whether her 
pelvis is passable for a normal fetus of 7 or 7-1/2 pounds; 
that when the head of a fetus is on the perineum "you 
should go ahead and deliver"; that it is proper practice 
to permit the fetus to remain in the perineum before 
delivery "for a few minutes, 15 or 20 minutes;" and that 
it is not proper to permit the fetus to remain in the 
perineum for 4 hours. In answer to a hypothetical question 
he said that in his opinion it was a "neglected delivery." 
He was also of the opinion that on the hypothesis submitted 
the cause of the torn condition of the vaginal and sphincter 
muscle might or could have been caused by "disproportion 
in size of the baby to the pelvis." He also testified that 
in his opinion the prenatal care received by plaintiff was 
not proper. This opinion was based on the fact that the 
woman was not measured and that the baby was on the perineum 
for longer than 10 or 15 minutes. He was also of the opinion 
that the postnatal ca^e received by plaintiff was not proper. 



-5- 

His reasons for that opinion v?ere that there was no repair 
"made of that perineum." He stated that there might or 
could he a causal connection between the delivery and the 
postnatal treatment and the "present condition of ill being" 
of the patient, 

. Defendant makes several points which he does not 
argue. In his argument he states that the sudden death of 
the fetus in utero was in no way chargeable to him; that it 
was another one of numerous stillbirths occurring annually 
in this country; that as to the delivery and the events 
following, he was in nowise responsible; that the sudden 
death of the fetus demanded an episiotomy; that having no 
license to do surgery, he secured the immediate presence 
of Dr. Fox; that Dr. Fox is professionally well educated, 
qualifoed and experienced in gynecology; that with the 
entry of Dr. Fox into the case, defendant lost his right 
to exercise his own Judgment; that thereupon Dr. Fox became 
solely responsible; that defendant later reentered the case 
to give after-care; that in so doing he acted as agent for 
Dr. Fox; that if in the course of the after-care defendant 
"went wrong", which he does not admit, he, defendant is 
answerable to his principal, Dr. Fox, and to no one else; 
that it was not defendant's duty to give plaintiff after- 
care for something other than her operated perineum; that 
Dr. Paradise is not a follower of the school of healing 
practiced by defendant; that the answer he gave to the 
hypothetical question could not apply to defendant because 
it was based on "a reasonable degree of medical and surgical 
certainty"; that this standard was not applicable to defend- 






-6- 

ant; and that when a drugless physician encounters various 
symptoms he treats the patient "exclusively with manual 
thrusts and palpations." 

Plaintiff testified that defendant did not tell her 
that he was not licensed to practice medicine. A fair infer- 
ence from the te?timony is that she believed that he was so 
licensed. In Mat the! v. Wooley , 69 111. App. 654, the cou^t 
held that if by treating, operating on, or prescribing for 
physical ailments a person holds himself out as a doctor 
to othe"^ persons employing him, and they believe him to be 
a doctor, he will be chargeable as such. See also McNevins 
v. Lowe j 40 111. 209. Te are of the opinion that the defen- 
dant should be held, as a matter of law, to bear the same 
responsibility as would a regularly licensed medical 
practitioner, by reason of the manner in which, through his 
acts of commission and omission, he misled the plaintiff 
into believing he was properly qualified to treat the post- 
parturitional conditions which arose. 

The liability of defendant for negligence in the 
diagnosis and the treatment which he undertook is not 
affected by the temporary entrance into the case of Dr. Fox 
for a special purpose and for a limited time. Plaintiff 
placed herself under the care of defendant and had never, 
until going to the hospital long after her delivery, either 
sought or consented to the ministrations of any 
medical service or giving of any advice other than fi^om the 
defendant. The services of Dr. Fox were necessary in the 
immediate emergenct presented by the requirement of 
surgical delivery. However, d~. Fox's status was that of an 



-7- 

emergency attendant. Plaintiff testified that she never 
consulted Dr'« Fox professionally. This statement is verified 
by Dr. Fox. Whatever the relationship may have been between 
defendant and Dr. Fox* the rights of plaintiff against 
defendant cannot be prejudiced thereby. Defendant owed a 
primary duty to plaintiff at all stages of he~ treatment. 
The court properly admitted the testimony of plaintiff's 
expert witness on the issue of whether defendant exercised 
the care and skill required of him. Defendant contends that 
Dr. Paradise was not a competent witness because of the 
fact that he is a medical doctor and the defendant a 
chiropractor and midwife. At no time did defendant give 
or purport to give any treatment to plaintiff in his 
capacity as a chiropractor. Throughout his entire treat- 
ment of the plaintiff he was acting as a midwife. While 
a physician's license is broader than that of a midwife 
and there are some things connected with obstetrics allow- 
able to a physician and forbidden to a midwife, it does 
not follow that a physician is not acquainted with what a 
midwife actually does or should do. The test of the com- 
petency of an expert witness is whether he discloses suffi- 
cient knowledge of his subject to entitle his opinion to 
go to the jury* In our opinion the expert testimony of 
Dr. Paradise was properly admitted. 

The case presented factual Issues which the jury 
resolved* 7e do not fitad and reversible errors. The court 
properly entered judgment against defendant. Therefore, 
the judgment of the Superior Cou^t of Cook County against 
Dr, Victor A. Piontkowski is affirmed. 

JUDG-LIENT AFFIRMED. 
KILSY, J., and LEWE, J., CONCUR. 



\.+ t 



44620 



DANIEL DRAKULICH, 

Appellant, 



v. 



STEPHEN E. HURLEY, JOHN W. CLARKE 
and ALBERT W. WILLIAMS, Civil 
Service Commissioners of the City 
of Chicago, 

Appellees. 







APPEAL FROM 
SUPERIOR COURT, 
COOK COUNTY. 



\\ 



3 37I.A. 102' 



MR. JUSTICE KILEY delivered the opinion of the court. 



This is a certiorari proceeding to review the record, 
of the Chicago Civil Service Commission, upon which plaintiff 
was discharged from the Police Department. The writ was 
quashed and plaintiff has appealed. 

Plaintiff became a civil service policeman in 1936. 
He had a good record, was cited and rewarded on one occasion, 
was commended in an out of town visitor's letter to the 
Department upon another and as a motor cycle policeman was an 
efficient, good policeman. In July 1947 charges of neglect 
of duty and conduct unbecoming a police officer were filed 
with the commission against him. He was tried and found 
guilty of neglect of duty in failing to a^est, and of 
unbecoming conduct in soliciting a bribe of $5.00, from 
a speeder. Pursuant to the decision he was discharged 
Octobe- 20, 1947. 

It is not disputed that this proceeding is governed 
by Section 12 of the Civil Service Act (Chap. 24 l/2, Par. 
51 111. Rev. Stats. 1947); that the commission had power 
to make its finding and decision as to plaintiff only "for 



^ 



-2- 

cau.se, upon written charges and after an opportunity to be 
heard in his own defense"; and that the charges against 
plaintiff were written and he appeared with counsel and made 
a defense. Plaintiff contends the order quashing the 
writ should be reversed because the findings and decision 
were not based on clear and convincing evidence in accord- 
ance with the holding in Drezner v. Commission , 398 111. 
219; and because legally applicable proceedings were not 
observed. 

The Drezner case did not involve common law certiorari. 
It was governed by the Administrative Review Act (Chap. 110, 
Par. 264, e_t sea . 111. Rev. Stats. 1947) ; which, empowers the 
courts on review to hear and determine "all questions of 
law and of fact presented by the entire record before the 
court." Par. 274. That Act applies to reviews of records 
from any agency where the act creating the agency expressly 
provides. Par. 265. The statement in that case that a crime 
charged in a civil proceeding must be proved by clear and 
convincing evidence does not apply in common law certiorari 
proceedings. 

Since written charges and plaintiff's defense is 
admitted, the only jurisdictional fact in question is that 
of ■cause." Hopkins v. Ames, 344 111. 527; People, ex rel 
Fosse v. Allman , 329 111. App. 296; I.iurphy v, Houston , 250 
111. App. 385. 

Plaintiff does not contend that the charges made 
against him, if properly shown, would not constitute cause. 
The vital question then is how far the trial, or this, court 
can go to determine whether the record shows the Jurisdictional 



-3- 

fact of "cause." T ?e think the record need only show that 
there is evidence tending to prove the charges* Funkhouser 
v. Coffin , 301 111. 257; Hopkins v. Ames ; People v. City of 
Chicago , 234 111. 416; City of Chicago v. People, ex rel 
Gray , 210 111. 84; People, ex -el Fosse v. Allraan 329 111. 
App. 295; Campbell v. Civil Service , 290 111. App. 105; 
Murphy v. Houston . 

Plaintiff's written statement, shortly after his arrest 
on June 29, 1947, recites that he stopped Frank Hadzima who 
was driving 40 miles per hour; that he let Hadzima go; that 
Hadzima asked whether he could "sec" plaintiff; and that 
plaintiff said "if he wants to do so we made the date at 21st 
Pic. and Ashland for 10:00 the next day." Hadzima testified 
he was going about 35 miles per hour in a 25 mile limit zone; 
that he was stopped by plaintiff who asked him for ""5.00 
in exchange for freedom from arrest and punishment; that 
he promised to give plaintiff the money the following day; 
and that he met plaintiff the next day. A police inspector 
and a lieutenant testified that by arrangement they observed 
the meeting between Hadzima and plaintiff the day following 
the speeding violation; that they arrested plaintiff while 
he stood beside Hadzima' s car with head and hand inside; 
and that Hadzima had his wallet in his hand at the time. 

1e have noted plaintiff's contentions with respect 
and 
to Inadmissible [_ incompetent testimony. The material com- 
petent evidence recited above clearly tends to support the 
findings. *7e need consider no other point raised. 

The order is affirmed. 

ORDER AFFIRMED. 

BURKE, P. J., and LETS, J., CONCUR. 



t x 



J 



— - 



U *r" 



44517 

MARION McADOW, 

Appellant, 

vs. 

PAUL GEORGE PAPSDORF, WALTER 
SCANLAN, CHARLES V. McCOR- 
MACK, and INEZ PAPSDORF, 

Appellees. 




) 



APPEAL FROM 

CIRCUIT COURT, 
COOK COUNTY. 

S37I.M'02 



2_ 



MR, JUSTICE LEWE DELIVERED THE OPINION OF THE COURT. 
This Is an action to recover damages for the 
alleged negligence of defendants In extracting a tooth and 
in the postoperative treatment. Prior to the trial defend- 
ants Drs. Papsdcrf and McCormack died and the respective 
administrators were substituted aa parties 'defendant. Dur- 
ing the trial defendants Dr. Scanlan and Inez Papsdorf were 
dismissed. The case was tried on the third count of the 
complaint which alleged in substance that defendant Papsdorf, 
who specialized in dental surgery, and defendant McCormack, 
a dentist, failed to use due cere end skill as professional 
persons in extracting plaintiff's tooth; that they fractured 
plaintiff's jaw, and that their failure to use due sare and 
skill in treating the condition created by them caused en 
infection or osteomyelitis of plaintiff's jaw bone. Judg- 
ments were entered on the verdict of a jury against the 
administrators of the estate? of Doctors Papsdorf and 
McCormack in the sums of $35,000 and $15, ©CO, respectively. 
Defendants' motion for judgment notwithstanding the verdict 
was allowed. Plaintiff appeals. 

Plaintiff, forty-five years of age, was employed 
as a school teacher. On October 2, 1943, accompanied by 



. t* 



;c 



t :' 



-2- 

her sister, she went to the office of her dentist, Dr. 
Scanlan, for the purpose of having a l©wer left molar 
treated. Dr. Scanlan testified that at that time he took 
an X-ray of the tooth and palpated the Jaw bone (mandible) 
to determine the muscular structure and diameter of plain- 
tiff's Jaw to ascertain whether there were any soft spaces 
or spots; that he found the tooth devitalized; that the 
roots were fairly straight and had no decided hook in them; 
that he observed nothing abnormal in the mouth or Jaw of 
plaintiff; that he found no degeneration of the bone process 
of the Jaw; thai he advised plaintiff to have the dead molar 
extracted. After anaesthetizing the area surrounding the 
tooth and applying an iodine solution to render those parte 
sterile he tried to dislodge the tooth by the use of instru- 
ments but was unable to do so. He then took another X-ray 
to see if there was any change in the position of the tooth 
in relation to the Jaw but found none. Thereupon he sug- 
gested to plaintiff that it be removed by a specialist and 
on the same day communicated with Dr. Papsdorf. The first 
knowledge that he had of the fracture of plaintiff's mandible 
was contained in a letter which he received from Dr. Paps- 
dorf shortly after Octoter 21, 1943 which stated that plain- 
tiff "has a pathological fracture; that it is almost decayed 
through. Now do not worry, I have the film which you sent 
with her which does not even reveal the slightest evidence 
of bone Involvement. Luckily I took X-rays as I went along 
and these X-rays showed no bone involvement- How she de- 
veloped such a rapid bone condition Is beyond me. * * * 



-3- 

X-rays today reveal the presence of a serious pathological 
bone condition * * *. " 

Kenneth William Penhale, a specialist in oral and 
plastic surgery, testified that he first met ola^ntiff on 
November 20, 1943 at St. Bernard's Hospital where he came 
at the request of Dr. McCormack; that plaintiff had diffi- 
culty in swallowing and complained of severe pain which 
increased as time went on; that she w? s unable to eat; 
that she had a splint in her mouth designed to hold the 
pieces or broken parts of her jaw in their relative po- 
sition; that X-rays taken October 29, 1943 showed no path- 
ology in the mandible that would cause r fracture; that an 
X-ray tatcen April 14, 1944 shews a separation of the two 
fragments; thpt there was no callus or bond formation 
present; that about April 10, 1944 plaintiff entered the 
hospital again and the witness used a fixation procedure 
and an appliance on the fractured jaw known as the Roger- 
Anderson appliance, which stabilized the jaw, so as to per- 
mit development of bony union of the fractured parts; that 
on August 15, 1944 the witness referred plaintiff to Dr. 
Phemlster at the Billings Hospital; and that during the 
time the witness treated plaintiff she was in pain and 
"under sedatives most of the time. She could not open her 
mouth at all or so little she could only take in liquids 
and soft diet occasionally. " 

Dr. McCradle, called in behalf cf plaintiff, 
testified that he saw her October 23 or 24, 1943 at her 
place of residence; that her temperature was 102; that the 



-4- 

left side of her face was swollen and deformed; that she 
was in extreme pain and had a marked tenderness over the 
entire surface of her left cheek; that there was a wound 
in the gum on the left side of her lower Jaw and no drain 
in the region of the wound; that on October 25, 1943 plain- 
tiff was admitted to St. Bernard's Hospital at which time 
Dr. McCormack was also present; that X-rays taken at that 
time disclosed a compound fracture of the left side of 
the mandible at the junction of the ramus; that X-rays 
taken subsequently disclosed that the fragments of the 
broken mandible were not in apposition. Dr. McCradle 
further testified that on November 20, 1943, at St. Bernard's 
Hospital, he and Dr. McCormack had a consultation with Dr. 
Penhale; that Dr. McCormack stated to the witness that he 
believed he could not properly set the fracture by the 
system that "we pursued in the past by wiring the teeth 
together" because there were no teeth on that part of the 
fracture; and that in the middle of November 1943 there 
was "a beginning osteomyelitis" in the left side of the 
mandible of plaintiff "of a new duration not over several 
weeks old. " 

Helen McAdow, called in behalf of plaintiff, 
testified that on October 16, 1943 Dr. Papsdorf, In the 
presence of Dr. McCormack and plaintiff, told the witness 
that "the X-rays showed that my sister's Jaw had been 
broken and they would have to wire It"; that or. October 22 
plaintiff's jaw was wired and immediately thereafter plain- 
tiff and her sister were transported to their home by 



-5- 

Dr. Papsdorf who stated to them that "You girls must 
promise me that no one will touch this jaw or do anything 
to it until I return to town * * * I am turning you over 
to my assistant Dr. McCormack; he will be in charge of you 
for the next week." The witness further testified that 
Dr. Paosdorf placed a pair of "snips" in her hands and 
gave her detailed instructions to cut the wires on plain- 
tiff's teeth in case "there was any gagging or signs of 
gagging, " and that she never saw Dr. Papsdorf after October 
22nd; that on October 23 she cut the wires that had been 
inserted in plaintiff's teeth for the ourpose of holding 
her jaws in position; that she saw Dr. McCormack rewire 
plaintiff's jaw on several occasions during the period when 
plaintiff was at the hospital and that defendant McCormack 
each time brought three or four instruments in his pocket, 
took them out and proceeded to use them without sterilizing 
them. 

Malcolm P- Brooks, called in behalf of plaintiff, 
testified in substance that he was graduated from North- 
western University Dental School in 1922 and has practiced 
in the City of Chicago since that date; that he is engaged 
in the general practice of dentistry and that in 1931 he 
had charge of the extraction unit of the Chicago Dental 
Society for a period of five months during which he 
extracted from fifty to a hundred teeth a day, five days 
a week. In response to a hypothetical question propounded 
by plaintiff's counsel, the witness stated that fracture 
of the mandible is immediately recognizable from examination 



-6- 

of X-ray films, and that the use of instruments without 
sterilization after being' carried loose in a pocket may 
induce bacteria. 

The question of law presented upon defendants' 
motion non o bst a nte veredicto is whether, when all the 
evidence is considered, togeth-r with all reasonable in- 
ferences from it, in its aspects most favorable to the 
plaintiff there is a total failure to prove any necessary 
element of her case. ( Weinstei n v. Metropolita n Life . In- 
suran ce Co. . 389 111. 571.) 

In the instant case the evidence construed most 
.c 
favorably to plaintiff tends to show that her jaw was 

fractured during the process of extraction by Drs. Paps- 
dorf and McCormack; that at the time of extraction there 
was no pathology in the mandible; that the fracture was 
traumatic in origin; that the osteomyelitis in the left 
side of the mandible of plaintiff developed after the 
fracture of plaintiff's jaw; that fourteen days had elapsed 
after the extraction of plaintiff's tooth before she was 
informed by Dr. Papsdorf that the X-ray showed a fracture 
of plaintiff's jaw bone; that no attempt was made to im- 
mobilize plaintiff's jaw for a period of twenty days after 
it had been broken; that Dr. Papsdorf exacted a promise 
from plaintiff which in effect bound her to postpone con- 
sultation with or treatment by other physicians and sur- 
geons except Dr. McCormack while Dr. Papsdorf was out of 
the city; that Dr. McCormack on several occasions used 
unsterilized instruments in rewiring plaintiff's teeth; 



-7- 

that he was present when Dr. Papsdcrf first told plaintiff 

that her jaw was broken; and that Dr. McCormack was in sole 

charge of plaintiff while Dr. Papsdorf was absent from the 

city. 

From a careful examination of the record we think 
the evidence tends to show that Drs. Papsdorf and McCormack 
did not use the skill and care in extracting plaintiff's 
tooth, and in the treatment of plaintiff after the extrac- 
tion, ordinarily used by persons in their profession in 
similar circumstances. See Shutan v. Bloorr.enthal , 371 111. 
244, where the material facts are substantially the same as 
those in the case at bar. 

The record shows that defendants filed an alter- 
native motion for a new trial but it does not appear that 
the trial court ruled upon this motion, as provided in 
Rule 22 of our Supreme Court Rules. The purpose of Rule 22 
is to enable the Appellate Court, in cases where an alter- 
native motion for a new trial has been made, to pass upon 
both questions so as to avoid circuity of action and more 
speedily to determine the rights of the litigants. ( Miliikin 
Nat. Bank v. Grain Co., 389 111. 196; Todd v. S. S. Kresge 
Co. ,384 111. 524; 'Goodrich v. Sprague, 365 111. 200.) 

For the reasons given, the judgment for the de- 
fendant notwithstanding the verdict is reversed, end the 
cause is remanded with directions to rule upon defendants' 
motion for a new trial* 

REVERSED AND REMANDED WITH DIRECTIONS. 
BURKE, P.J*-, snd KILEY, J., CONCUR, 



44552 

JOHN E. SULLIVAN, Receiver of 
Gar-field State Bank and R. L. 
Feltinton, 

Appellees, 

v. 

MARY 0' BOYLE, 

Appellant. 



APPEAL FROM 
MUNICIPAL COURT 
OF CHICAGO 




A. 103 



MR. JUSTICE 'LE^E DELIVERED THE OPINION OF THE COURT. 



August 18, 1947 plaintiff, as assignee, brought suit 
to revive a judgment entered by confession on February 17, 
1932 for §539.01. Defendant filed a defense and jury demand. 
On plaintiffs' motion defendants second amended statement 
of defense and third counterclaim was stricken and judgment 
entered by the court without a jury, for the sum of 6424.01. 

The statement of claim alleges that the defendant 
executed a "promissory judgment note" dated June 1, 1931, 
for j450 with interest at 7 pe~ cent payable September 1, 
1931 to the order of Garfield State Bank, and that defendant 
deposited with payee "a *500 Kenton Villa Apartment fi^st 
mortgage bond due 6/l/36"; that judgment was entered on the 
note February 17, 1932J that an execution was issued and 
returned "nulla bona"; and that plaintiff acquired title to 
the judgment "oy assignment f^om the receiver of the Garfield 
State 3ank. 

Defendant's amended answer and counterclaim, which is 
entitled "amended counterclaim in the nature of a verified 
petition or motion for a writ of e^ror coram nobis , " alleges 
in substance that on June 1, 1931 defendant was the owner of 
a 3500 Kenton Villa Apartments fi^st mortgage bond; that at 



-2- 

the time of the purchase of the bend from the Garfield State 
Bank she was orally assured that the Bank would repurchase 
the bond at cost less one per cent of the principal and 
accrued interest; that defendant made a loan at the Bank 
and deposited the ^500 bond as collateral; and that the 
Bank failed to carry out its agreement to repurchase the 
bond and apply the proceeds of the sale of the bond to the 
payment of her note. 

The law is well settled that the agreement between 
the Bank and the defendant to repurchase her first mortgage 
bond is prohibited by law and unenforcible against the Bank. 
Ho ffman v. Sea^s Community Bank . 356 111. 598: Knass v. 
Had i son and Kedzie State Bank , 354 111. 554.) Under the 
foregoing authorities the court properly struck defendant's 
amended answer and counterclaim. 

Defendant contends that the trial cou~t was without 
jurisdiction to try the factual issues without a Jury. "Je 
think this contention is without merit. 

The ^eco^d shows that on March 30, 1948 plaintiff 
moved to strike defendant's amended defense and counterclaim. 
This motion was continued by o-der of cou^t to April 6, 1948. 
On April 5, 1948 an order was entered sustaining plaintiff's 
motion to strike. This order also -ecites: "How comes 
plaintiff in this cause, the defendant being absent and not re- 
presented, and thereupon the cause comes on for hearing before 
the court in the regular course for trial without a jury; the 

cou^t finds the issues against the defendant on sci^e facias 
* * * n 

Upon the striking of defendant's amended statement 
of defense and counterclaim there was no issue for the ju^y 



/ 



-3- 

to try. Rule 68 of the Municipal Cou^t of Chicago, which 
pertains to the assessment of damages by that cou^t, provides: 
"* * * If, however, the defendant or all or either of the 
defendants if more than one, shall file a demand in writing 
for a trial by ju^y and pay the fee therefor, such defendant 
or defendants shall be entitled to have the damages assessed 
by a jury, if they appear at the time of such default and 
insist thereon. M Since defendant failed to appear on April 
6, 1948 when her amended defense and counterclaim was stricken, 
the court was authorized in he^ absence to assess the damages 
without a jury. 

For the reasons stated, the judgment is affirmed. 

JUDGMENT AFFIRMED. 

BURKE, P.J., AND KILEY, J., concur. 



V 



44587 

GALE KNITTLE, FLORENCE KNITTLE ) 
and DOLORES KNITTLE, 

Appellees, 

v. 

WILLIAM HEYDEN, 

Appellant. 




APPEAL FROM 

CIRCUIT COURT, 
COOK COUNTY. 

3 37I.A. 104 



MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT. 

This is an action to recover damages for personal 
injuries alleged to have been sustained by plaintiff, his 
wife, and daughter, as a result of a collision, at the 
intersection of two highways, between an automobile driven 
by plaintiff G-ale Knittle and a police squad car driven by 

defendant, a police officer in the Village of Barrington, 

Illinois. There was a jury trial and verdict and judgment 

in favor of the plaintiffs Gale Knittle, Florence Knittle, 

and Dolores Knittle, in the sums of 510,000, $1,500, and 

$500, respectively. Defendant's motions for a new trial and 

for judgment notwithstanding the verdict were overruled. 

Defendant appeals. 

The complaint consists of two counts. The first 

alleges negligence and the second, willful and wanton conduct. 
Defendant denied the allegations. He filed an additional 
answer which averred in substance that at the time of the 
accident he was employed as a police officer for the Village 
of Barrington a municipal corporation and was at the time 
and place in "fresh pursuit of a person suspected of having 
perpetrated a crime, " and that in pursuit of such person he 
was an officer of the Village of Barrington and was perform- 
ing a duty imposed upon it by the State of Illinois in 



-2- 

the exercise of a strictly governmental function. On plain- 
tiffs' motion defendant's additional answer was stricken. 
Early in the morning of July 14, 1946 the plain- 
tiff accompanied by his wife and daughter left their home 
in Brookfield, Illinois intending to drive to Wisconsin for 
a vacation. The collision causing the injuries here com- 
plained of occurred about 4:45 o} clock a.m. at the inter- 
section of Hough Street and U. S. Highway 14. Plaintiff 
Gale Knittle was driving his automobile west on Highway 14 
and defendant's police car was traveling north on Hough 
Street at the time of the accident. Hough Street is 34 
feet wide south of the intersection and 18 feet wide north 
of it. Highway 14 has a two-lane concrete pavement. Both 

highways broaden out at the intersection and vehicular 
traffic is regulated by electrically controlled traffic signal 
lights, A gas station is located on the southeast corner 
of the intersection 61 feet south of the south edge of the 
pavement on Highway 14 and 50 feet east of the pavement on 
Hough Street. About two blocks east of the intersection 
Highway 14 turns from north to west. As plaintiff's car came 
around the turn two blocks east of the intersection the 
traffic signal light was red. When his automobile reached 
a point about one block or. one and a half blocks away the 
traffic light turned green. Plaintiff proceeded west travel- 
ing about 35 or 40 miles an hour. About 10 or 20 feet east 
of Hough Street he saw defendant's police car 75 or 100 feet 
to the south, approaching the intersection at 65 or 70 miles 
an hour, and that it maintained this speed as it entered the 
intersection where the collision occurred. 



-3- 

Defendant contends that the trial court erred in 
refusing to grant his motion for peremptory instruction to 
find defendant not guilty, made at the close of plaintiff's 
case and again at the close of all the evidence, on the 
ground that at the time and place of the accident defendant 
was performing a governmental function as a police officer. 

Defendant testified in substance that he was a 
police officer in the employ of the Village of Harrington; 
that he was familiar with the intersection; that on the 
morning of the accident while sitting in the police car he 
saw "a speeder taking off from the intersection of Main and 
Hough streets" about two blocks away; that as defendant 
approached the intersection the traffic lights of Highway 
14 were amber; that he crossed the intersection at a speed 
of about 55 miles an hour "or a little better"; that he did 
not see the plaintiffs' car coming from the east until it 
was "within eight feet" of him; that while he was pursuing 
the alleged speeder, "the flicker lights, the bright lights, 
and the flasher lights" of the police car were burning; and 
that the red flasher light is on the front fender. 

Chief of Police Baade of Barrington, called in be- 
half of plaintiffs testified that the defendant told him 
shortly after the occurrence that plaintiffs' car was "pro- 
ceeding west slowly, " and. that the "flash" and siren on the 
police car were operating. 

William Rehfield, a court reporter called in behalf 
of plaintiff, testified that at the taking of a pre-trial 
deposition defendant testified that his purpose in pursuing 
the alleged violator was to "find out whether he was speeding 
1 or not" and that he did not get close enough to. the speeder 
in order to determine how fast he was traveling. 



-4- 

The question whether defendant at the time of the 
occurrence was exercising a governmental function presented 
a question of fact for the jury to determine. Plaintiff's 
testimony shows that no automobile traveling on Hough Street 
crossed the intersection as plaintiff's automobile was 
approaching it from the east. Some of defendant's testimony 
is self-contradictory. Defendant' s .testimony that he was 
pursuing an alleged speed violator stands uncorroborated. 
In support of his contention defendant_ relies strongly on 
Taylor v . Cit y of Berwyn, 372 111. 124. There the uncontro- 
verted evidence showed conclusively that the police squad 
car involved was at the time of the accident being operated 
by a police officer, in the performance of his duty as a police 
officer of the city. In the case at bar the evidence that 
defendant at the time of the accident was in the performance 
of his duty is conflicting and inconclusive. Plaintiff 
insists that the speeding automobile defendant says he pursued 
was "a figment of the defendant's imagination." We think 
plaintiffs' evidence xvas ample to warrant a finding by the 
jury that defendant at the time of the collision was on a 
personal mission and not in the performance. of a governmental 
function as a police officer of the village.. The peremptory 
instructions were therefore properly refused. 

Defendant complains of the court's refusal to with- 
draiv from the consideration of the jury Count Two which charges 
defendant with willful and wanton conduct. Plaintiffs' evi- 
dence tends to show that defendant ran through the red traffic 
signal light at the intersection while traveling at a speed 
in excess of 65 miles an hour; that the "flasher" light on . 
defendant's car was not operating, nor was the siren sounded. 
In our opinion the evidence was sufficient to justify the jury 
in finding that defendant's actions at the time of the occur- 



-5- 

rence constituted. willful and wanton conduct. ( La Cerra v. 

Goodrich , 321 111. App, 107.) 

Defendant maintains that his additional answer which 
was stricken by the court was vital to his defense. No pre- 
judice could have resulted from the court's action in striking 
the additional defense since the record shows that evidence 
of this defense was permitted under the general ansiirer* 
Moreover, defendant's position is untenable for the reason 
that the jury returned a general verdict and so far as the 
record shows defendant did not request a special verdict. 

The presumption is that where a general verdict is rendered 
without specifying the count on which it is based, the verdict 
is based on the count charging willful and wanton negligence 
rather than upon the. count charging ordinary negligence. 
(Trumbo v. C. B^ & Q» R. R. Co . t 389 111. 213; Greene v» 
Noonan , 372 111. 286.) 

Defendant contends that the verdicts are excessive. 
At the time of the accident plaintiff Gale Knittle was 45 
years of age and employed as an engineer by a telephone 
company at a monthly salary of $550. He suffered multiple 
fractures of the ribs; his left collar bone was broken, and 
his lung was punctured. X-rays taken of the injuries more 
than a year after the accident show "an overlapping" of the 
collar bone, a definite deformity of the chest in that region, 
and "a thickening of the pleura; like scar tissue" which is 
permanent. Plaintiff testified that his ribs are very tender 
at times and that he seems to be "short of breath"; that his 
total losses, including hl6 automobile, doctors' bills, 
hospital bills, and other bills, aggregate $2,351. Plaintiff 
Florence Knittle, wife of Gale Knittle, suffered a broken 



-6- 

rib and her knee developed a traumatic bursitis. Dolores 
Knittle had contusions of the scalp, abrasions of both knees, 
and injuries. to her head which were diagnosed as a concussion 
of the brain. No contention is made that the jury were not 
correctly instructed as to the measure of damages, nor does 
it appear from the record that the verdict was the result of 
passion or prejudice. The question of damages is peculiarly 
one. of fact for the jury. ( Ford v. Friel, et al ., 330 111. 
App, 13$; Howard v. 3. & 0. C. Terminal R. Co ., 327 111.. 
App. 83.) From a careful examination of the record we cannot 
say that the verdicts are excessive^ and therefore are not 
disposed to disturb them 4 

We have considered the other points urged and the 
authorities cited in support thereof but in the view we take 
of this case we deem it unnecessary to discuss them. 

For the reasons given, the judgment is affirmed. 

JUDGMENT AFFIRMED. 

BURKE, P.J. AND KILEY, J. CONCUR. 



44611 

HIGHWAY MUTUAL CASUALTY 
COMPANY, a corporation, 



Appellee, 



vs. 



THE AZTEC LINES, INC., 
a corporation, 



APFEAL FROM 

CIRCUIT COURT, 
COOK COUNTY. 



J 



Appellant. 



37I.A. 104 



MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT. 

This Is an action to recover premiums due on 
Workmen's Compensation and Employer's Liability policies. 
The court found that there Is due plaintiff the sum of 
$1,895.98 and entered judgment for that sum against defend- 
ant. Defendant appeals. 

The material facts are uncontroverted. Defend- 
ant Is engaged in an interstate trucking business and em- 
ploys many drivers who operate their own trucks. An audit 
was made of defendant's books by plaintiff's auditor. Af- 
terward the parties stipulated as to the payrolls of var- 
ious employees and the amount of premiums paid while the 
policies here involved were in force. The stipulation 
further provides that "there exists a difference of opinion 
between the parties as to the method of computing the 
amount of payroll of owner contractors to be used for the 
purpose of determining the premium due thereon for the 
periods from March 1, 1944 to March 1, 1945, and March 1, 
1945 to May 11, 1945; plaintiff's contention being that 
the terms and provisions of the endorsement on the policy 
entitled "Hired Teams and Hired Automobiles Endorsement" 
should prevail; and defendant's contention being that the 



-2- 

unlon scale of wages for drivers cf each owner contractor 
vehicle should prevail. Plaintiff's claim for premiums is 
based on a provision of the policy which reads: 

"HIRED TEAMS AND HIRED AUTOMOBILES ENDORSEMENT 

"In consideration of the provisions of the policy 
to which this endorsement is attached it is hereby under- 
stood and agreed that if motor vehicles Including chauf- 
feurs and their helpers are employed under contract and if 
the owner of such motor vehicles has not insured his com- 
pensation obligation and furnished evidence of such insur- 
ance, the actual payroll of the driver and helpers shall 
be included in the payroll of the insured employer at the 
proper rate for the operations for which they are engaged. 
If such payroll cannot be obtained, one-half (l/2) of the 
total amount paid for the hire of such motor vehicles under 
contract shall be considered as the payroll of the chauf- 
feurs and helpers. " 

In arriving at the amount of payroll of owner 
contractors for the purpose of determining the premiums due 
thereon defendant allocated amounts on his books substan- 
tially as fellows: 

Reed $12.25 $37. 5C $49.75 
Reed was one of the owner contractors who received the sum 
of §49.75 for hauling freight from Chicago to Cleveland. 
Defendant insists that $12.25 represented the identical 
wage which a union driver not having his own truck would 
receive for the same service and the balance of $37.50 was 
for rental of the truck and included gas, oil, tires, re- 
pairs, and other expenses. Owner operators such as Reed 
were paid a total sum of $49.75 in one check. Defendant 
says that the Interstate Commerce Commission required it to 
keep a record cf the amounts paid to "over-the-road" 
drivers, and that defendant considered this method "a con- 
venient basis for computing premiums far Workmen's Compen- 
sation, " and further that there was a tacit agreement be- 
tween defendant and the owner-contractors that they were 



-3- 

being paid the union scale for their services.. 

On the other hand, plaintiff argues that a 
theoretical payroll or "conventional or convenient payroll" 
does not comply with the foregoing provision of the policy 
requiring an "actual payroll. " 

Defendant admits that the Interstate Commerce 
Commission did not direct it to allocate any specific sum 
as wages of contractor owners. It also concedes that it 
owes plaintiff premiums, based on its theory of wage al- 
location, in excess of those already paid, but has failed 
to compute for or tender to plaintiff any premiums due it. 
The policies provide a formula for computing the payroll 
of contract owners in the event the insured fails, as here, 
to keep actual payroll records for such contract drivers. 

We think the trial court was therefore justified 
in entering judgment herein based on the "Hired Teams and 
Hired Automobiles Endorsement. " The language of this pro- 
vision is clear and unambiguous. The principles applicable 
to the interpretation and construction of insurance poli- 
cies do not differ from those which govern other contracts. 
( Old Colony Life Ins . Co. v. Hickman . 315 111. 304.) 

Defendant contends that the owner operators 
driving their own trucks are employees and not independent 
contractors to which the "Hired Teams and Hired Automobiles 
Endorsement" refers. Illinois Revised Statutes 1947 
(State Bar Asso. Ed.), ch. 48, sees. 139 to 145 inclusive, 
provides in substance that the defendant being engaged in 
the business of a carrier is liable to ^every person in the 
service of another under any contract of hire" (Sec. 142(2). 



-4- 

In our view the language of the "Hired Teams and Hired 
Automobiles Endorsement" provision of the policy embraces 
all motor vehicles employed under contract. 

We have considered the other points urged and 
the authorities cited in support thereof but in the view 
we take of the case we deem it unnecessary to discuss them. 

For the reasons stated, the judgment is affirmed. 

JUDGMENT AFFIRMED. 

BURKE, P.J., AND KILEY, J., CONCUR. 



44623 

GRACE ROSSKAN, 

v. 

ALEX SOLWAY, 



Appellee, 



Appellant. 




APPEAL FROM 
SUPERIOR COURT, 
COOK COUNTY. 



1/ 






O O £ X»rk» JL xj O 



I 



MR. JUSTICE LETS DELIVERED THE OPINION OF THE COURT. 

Defendant seeks to "eve^se a judgment for 33,000 
entered on the verdict of a jury in an action to ^ecove 10 
damages for personal injuries resulting from a collision 
between defendant's automobile and an automobile in which 
plaintiff was a passenger. 

The collision occurred at about ten o'clock on a 
morning in February, 1945, at the intersection of Ogden and 
Sacramento avenues in the City of Chicago. At the time of 
the occurrence plaintiff was riding in an automobile owned 
and operated by he 1 " husband, Edward J. Rossman, a physician and 



surgeon. 

The question of defendant's liability is uncontro- 
ve^ted. Defendant contends that certain questions pro- 
pounded in the examination of the jurors on their voir dire , 
and other conduct of plaintiff's counsel during the trial, 
were highly prejudicial. The questions complained of are 
as follows: 



(1) Do you have any close friends or relatives, 
I.Ir. Jackson, who are now connected with any claim 
department of any company? Do you have anyone that 
you know of who ever did that kind of work? 



-2- 

(2) Mr. Fritz, does your firm do any work for the 
companies that are customarily interested in 
companies of this kind? Have you any friends or 
relatives with any claim department? In other words, 
that would eliminate at least close friends whose 

v;o rk you would probably know about. Have you anyone 
that you know of who ever did that type of work to 
your knowledge. 

(3) Let me ask all four of the jurors in the second 
panel, all four of you ladies, whether any of you 
have ever been connected with any claim department of 
any kind. Have you any friends or relatives who have 
ever done that kind of work, so far as you know. 

(4) (Addressing all four members of the third oanel 
of the Jury, the following question was asked). 

I was just going to ask all four of you jurors whether 
any of the four of you have any close friends or 
relatives who have ever been connected with any claim 
department or done any claim work. 

Defendant cays that plaintiff's reference in the 
foregoing questions to "claim department of any company," 
and "claim department of any kind" intimated to the jury 
"the presence of an insurance company behind defendant." 
Defendant relies on Wheeler v. Rudek, 397 111. 438. In our 
opinion the questions asked of the Jurors, which the court 
found objectionable in that case, are substantially different 
from those here complained of. 

We think it is a matter of common knowledge that 
many companies located in the metropolitan area of Chicago, 
other than insurance companies, maintain claim departments 
and that persons employed in the investigation and settle- 
ment of claims frequently are so defense-minded as to render 
them unsuitable for jury service. 

The evidence shows that on direct examination 
plaintiff and her husband, Dr. Rossman, testified that plain- 
tiff "at the request of representatives of the defendant" was 



-3- 

examined by Br. Thomas Browning. Defendant objects to the 
use by plaintiff's counsel of the term "representatives 
of defendant" on the ground that it might suggest to the 
jury that an insurance company was involved. This 
objection is without merit. Dr. Browning did not testify 
that he was employed by an insurance company to examine 
plaintiff, nor did defendant object to the questions and 
answers in which the term "representative" of defendant was 
used. ( Xiewert v. Balaban & Katz Corp ,, 251 111. App. 342.) 
To the same effect is Till lams v. Mat 1 in , 328 111. App. 645. 

The record' shows that the complaint filed herein 
consists of two counts. Count 1 alleges negligence, and 
count 2 willful and wanton conduct. Count 2 was dismissed. 
During the argument plaintiff's counsel stated to the jury, 
"This is only a civil suit for damages. We a^e not trying 
to punish anybody. We dismissed the willful count. You do 
not have to worry about the payment of the judgment." 
Defendant insists that this line of argument hinted to the 
Jury that someone ether than the defendant would pay any 
judgment entered against him. In the light of the charges 
in the complaint and the subsequent dismissal of count 2 we do 
not think that the Jury could necessarily imply that an 
insurance company would assume the burden. 

Finally defendant contends that the verdict is contrary 
to the manifest weight of the evidence and excessive in 
amount • 

Dr. Edward Rossman, called in behalf of the plaintiff, 
testified that he is a physician, that at the time of the 
accident he was driving his automobile * a two-door Buick 



-4- 

roadster, from his home in Aurora to Chicago, accompanied 
"by Mrs. Norvell and plaintiff who were seated beside him; 
that at the intersection of Ogden and Sacramento avenues 
"a terrific force of some kind hit us at the back," driving 
his automobile over a 12-inch curb and on to the sidewalk; 
that shortly after the collision plaintiff complained about 
her neck being "awfully sore" and of her back; that about 
three o'clock in the afternoon of the day of the occurrence 
the witness took the plaintiff to Dr. Paul A. Davis for 
treatment; that she returned to her home and remained in 
bed for ten days or two weeks; that the witness, in accord- 
ance with the directions of Dr. Davis, gave salicylate 
therapy, and diathermy treatments; that at the suggestion of 
Dr. Davis plaintiff was examined by Dr. Compere; that Dr. 
Compete ordered a Magnuson brace which she has worn eve^ since < 

Dr. Paul A. Davis testified that he examined the 
plaintiff on the day of the accident; that he ma.de a diagnosis 
9f the sprain of the erector splnus muscle in the region of 
the neck; that there was a "muscle spasm" in the lower region 
of the back; that he made a diagnosis of a "ligamentous 
tear in the right sacroiliac area"; that "these injuries 
of the neck and of the lower back could be caused by an 
injury"; that he saw plaintiff twenty or thirty times in the 
course of the year or fourteen months following the accident. 

Dr. Edward Compere, called in behalf of the plaintiff, 
testified that she was suffering from traumatic arthritis; 
that he prescribed diathermy, massage, and a corset-type 
of back brace to support the sacroiliac joints; that when he 
last examined the plaintiff on December 8, 1947 she was still 



-5- 

wearing the brace and that in his opinion if there was no 
recovery ove^ a period of a year or two her condition "will 
continue to cause disability." 

Plaintiff testified that shortly after the injury 
she was treated by Dr. Davis and then confined to her home 
for about ten days or tv/o weeks; that she employed "sitters", 
for the children and had a woman come in to help with the 
housework for several months after the accident; that she is 
no longc" able to do the heavy housework such as cleaning, 
washing and ironing; that she began to wear a surgical belt 
to give her back support about a month after the accident; 
that thereafter she wore the brace weighing about eight 
pounds as recommended by Dr. Compete. 

Dr.. Thomas C. Browning, called in behalf of the 
defendant, testified that he took X-rays of the plaintiff; 
that an examination of the X-rays showed no abnormality, 
"no evidence of fracture, dislocation, and no signs of 
injury"; that the teaming of muscles and. ligaments in and 
around the sacroiliac joint would not necessarily show 
on X-rays, 

Dr. N. S. Zeitlin, testified in behalf of defendant 
that an examination of the X-rays disclosed "a mild degree 
of arthritis, typical for an adult person, in the sacroiliac 
joint, and no othe 1 ^ pathology. 

While the testimony of the doctors is conflicting, 
we think the jury could find that plaintiff sustained a 
severe injury to he 10 back as a result of the collision. 
The question of damages is one of fact for the Jury. ( Ford v. 
Friel, 330 111. App. 136.) On the record before us we cannot 
say that the verdict is against the manifest weight of the 



evidence with respect to the injury. Neither do we find 
that the verdict is excessive. The trial court and the 
ju-^y who heard and saw the witnesses were in a better 
position than this court to determine the weight of the 
testimony and the credibility of the witnesses. 

For the reasons given, the judgment is affirmed. 

JUDGMENT AFFIRMED. 
BURKE, P. J., AND KILEY, J., CONCUR. 



44646 

AL3ERT H. DUNLAP, 

Appellant, 
v. 
IVORY HORTON, 

Appellee. 




APPEAL FROM 



MUNICIPAL COURT 



OF CHICAGO. 



\ 



•n 






3 371A. 10 Q 



MR. JUSTICE LEV7E DELIVERED THE OPINION OF THE COURT. 

This is an action in forcible detainer to recover 
possession of Apartment A, third floor front, in the premises 
commonly known as 712 East Fiftieth Place, in the City of 
Chicago. 

January 16, 1948, by agreement betiireen the parties, 
a judgment was entered waiving trial by jury, finding the 
defendant guilty of unlawfully withholding possession from 
the plaintiff and staying the writ of restitution to July 15, 
1948. 

July 13, 1948 defendant filed a petition alleging in 
substance that plaintiff represented to the court that he 
intended to occupy the premises for his own use; "that the 
defendant now knows and has ascertained that the plaintiff 
does not desire the premises for his own use and occupancy"; 
that the representation of the plaintiff to the court that 
plaintiff "wanted the premises for his own use was a willful 
fraud perpetrated upon the court; that it was an erroneous 
fact which was made the basis for the court's judgment in 
this cause; that had the court known at the time of the 
entry of such judgment that said fact was false as recited 



v 



-2- 

herein, . the court would not have entered the judgment it 
entered." The petition concluded with a prayer that the 
judgment be vacated, the writ of restitution be quashed and 
a new trial granted, 

July 20, 1948 plaintiff filed a motion to strike 
the petition on the ground that the petition filed. under 
section 21 of the Municipal Court Act will not lie. 

July 30, 1948 the trial court entered an order sus- 
taining the motion to strike, granting the motion for a new 
trial, and transferring the cause to the Chief Justice for 
reassignment. 

Afterward, on August 9, 1948, the trial court 

entered an order which recites, among other things, 

ti * * * that the record in this cause be, and the 
same is hereby corrected to show that the Motion of the 
PLAINTIFF to. strike the Petition of the Defendant in the 
nature of a Writ of Error Coram Nobis, as to errors of fact, 
is SUSTAINED. 

"IT IS FURTHER ORDERED that the record be corrected 
to show that Defendant's Motion under Section 21 of the 
Municipal Court Act, to vacate the judgment heretofore 
rendered in this cause on, to-wit: January 16, 1948, because 
of alleged fraud, be and the same is hereby sustained, and . 
the said Defendant is hereby granted a new trial, and said 
cause is transferred to the Chief Justice for re-assignment. 

"IT IS FURTHER ORDERED that on the" Court's own 
Motion the Defendant be granted a new trial." 

The. judgment shows on its face that it was entered 

by agreement. "It does not purport to represent the judgment 

of the court but merely records the agreement of the parties." 

( Sims v. Powell , 590 111. 610.) A judgment entered by consent 

cannot be reviewed by appeal or writ of. error, ( Sims v. 

Powell ; Bergman v. Rhodes , 334 111. 137.) For the purpose of 

plaintiff's motion to strike, all the facts well pleaded in 



-3- 

defendant's petition are admitted, ( Stenwall v. Bergstrom, 
398 111. 377.) Defendant says, "The court inspected its 
minutes" and having "fully advised itself in the premises 
ruled that plaintiff had perpetrated a fraud," That the 
court's "minutes* show does not appear in the reoord* nor 
are they material. 

Plaintiff's motion to strike presents a question of 
law. In considering plaintiff's motion the trial court is 
restricted to the facts alleged in defendant's petition. 
These allegations, as defendant concedes, are clearly 
insufficient to vacate the judgment, for the reason that it 
was entered by agreement. 

For the reasons stated, the order of August 9, 1948, 
vacating the Judgment and granting a new trial, is reversed, 
and the cause is remanded with directions to enter Judgment 
for plaintiff. 

REVERSED AND REMANDED TITH DIRECTIONS 

BURKE, P. J., AND KILEY., CONCUR. 







tf^Ct 



STATE OF ILLINOIS 
THIRD DISTRICT 
February Term, A. D. 1949 




v l 0.9611 



LOUIS F. GILLESPIE, as Successor -receiver 
of Hancock County Mutual Life Association, 

Plaintiff-Appellant , 

vs. 

F. J. REU, DALE F. SCOTT, FRAKK HOUSTON, 
T.B. STEWART, RUTH W.WITT, as > xecutrix 
of the Estate of John B. Johnson, deceased, 

Defendants-Appellees. 

Wheat, J. 



AGENDA NO. 2 

Appeal from 
Circuit Court of 
Hancock County \ 

3 37I.A. 213 



Plaintiff Louis F. Gillespie, as Receiver of the Hancock County 
Mutual Life Association, appeals from an order dismissing his suit against 
defendants, who were officers and directors of such association, The action 
was commenced by the filing of complaint at law on December 13,1944 as Gen- 
eral 0.12794 charging defendants with mismanagement, diversion of the 
funds and property of the association, and destruction of the business of such 
association. Defendants filed motions to dismiss the action and to strike the 
complaint on numerous grounds, one of which was that the cause of action was 
barred by a prior judgment and adjudication between the same parties in 
Chancery Case No. 7070, by orders dating December 15, 1943 and June 21,1944. 
These motions were granted, the suit dismissed, and this appeal follows. 

It appears that plaintiff had theretofor instituted an action in 
Chancery against the sane defendants, the second amended complaint having 
been filed February 11,1941. notions to strike the second amended complaint 
were allowed on October 5,1943, and on December 15,1943 a final order was en- 
tered dismissing the suit at plaintiff's costs. On January 14,1944 plaintiff 
moved to set aside such order of dismissal and for permission to file a 
Third Amended Complaint at Law which was tendered. This motion was denied 
June 21, 1944. No appeal was taken from either the order of December 15,1943 

or that of June 21,1944. 

As to whether the issues in the second suit now before us, 
No. 12974, became res judicata by reason of the final and appealable orders 
dated December 15, 1943 and June 21,1944 in the former suit :co.7070, it is 












; 



first nece^ary to consider * ether the parties end the subject matter 
1 in both suits were the same. Plaintiff, himself , settles this by his state- 
ment in paragraph six of his corulaint in Gauss fee. 1297^ wherein this 
I ears: H He brings this suit against the same defendants as the defend- 
ants in said cause N0.707O-C and f or t he same causes of action as t-oss 
in said cause No.7070-C.An analysis of the pleadings in both oases con- 
firm? the correctness of this statement. 

Plaintiff t en ur^-es that the orders of aecenber 15,19'*3 and June 
£1,19*4 amounted to no more than a non-suit,. /hereby he might legally 
thereafter file the instant action. In the former suit, motions by all def- 
endants were fi&ed asking that the second amended complaint be stricken 
and the cause dismissed. The motion of the defendant Reu was complete and 
exhaustive, requiring 21 pages of the abstract of the record; tiiat of the 
other defendants required 13 pages of such abstract. On October 5,1943 the 
trial court ruled on such motions and made the following order: "This 
day come the parties to this cause by their attorneys, and this cause 

again coning on for hearing on the motion to dismiss the second amended 

K 
bill, and the court 'saving heretofore heard the arguments of oounsel -nd 

being fully advised, it is ordered by the court t at said mtion to dis- 
miss the second amended bill, be and the same is hereby sustained. 'There- 
after of December 15,19^3 the following order was ente: k f this 
coming on for a consideration and it now a peering to the court t at 
plaintiff's attorney herein was furnished with a written copy of the court's 
finding in allowing the notions to dismiss this cause ^n October J3 last, 
and having uc to this tiaie taken no further steps in the matter, the court 
finds that said suit should be dismissed for at of equity at plaintiff's 
costs. It is therefore ordered, ad judged, and decreed by the court t at said 
suit be «nd the same Is ereby dismissed for want of equity at lalntiff's 
c08ts.lt is further order--', that the clerk of this court on this day mail 
to J.Edward Jones, attorney for pl^intlrf in this cause, at his office at 
No. 69 w. Washington St. , Chicago, 111. a copy of this decree by registered 
mail /ith return recel t demanded" .This was a final and appealable order 
from whioh no ar peal was taken. 

Thereafter on January 14,19** rlalntlff resented a motion asking 
that the order of December 15,19' 1 3 be vacated, alleging that the notions to 



isralss on which the order of October 5»19-'±3 was *K*Kr*A based, were In tht 
lAture of demurrers; that the order of December 15 was contrary to equity 
ind l«w In that the court did have Jurisdiction to furnish relief as a?_leg- 
( d in the second amended complaint; that plaintiff wished to file a third 
tended complaint at law which was then tendered with request for leave to 
file. On June ?1„19M* the court denied the motion to vacate and for leave 
tc fil* a third amended complaint at law. No ay-peal was taken from this 
jrder.Ag such tendered third amended comrlaint at law was substantially the 
lame »s the complaint now before us in the instant case, It amounted to a 
rinding that such tendered third amended complaint was insufficient in law 
|o state a cause of action. The net effect of all of such rulings, that is, 
Let of June 21,19**, that of December 15,19>h?,«nu that of October 5.19 V? 
|ras to hold that in neither his chancery action nor La his ■ rq osed action 
lit law by amendment, did plaintiff make a proper showing as to having a 
cause of aetlon.II 1 he believed the contrary his duty was to a -veal. Instead 
of so doing he waited until December 13,19*4 to file the pending action at 
law, the complaint In which is substantially the sar.e as the tendered third 
amended complaint at law in the previous case. The acts complained of were 
alleged to have occurred prior to 1935-As was said in the case of Stoll v. 
Qottllcd , 305 0.8. 165,59 Sup.Ct. l3*| B It is just as Important that there 
should be a lace to end a* that there should be a lace to bejln litigation." 
In the case of Doner v. Phoenix Land Bank, 381 111. p. 106,lt a pear a 
khat an order was entered October 7,19**1 dismissing on motion a second amend- 
ed comelaint.On NeveabO 10,19*1 an order was entered dismi ? aing the suit at 
plaintiffs costs, from which order an a peal was tahen.The court saidfThe 
contention that the order dismissing the suit was not on the merits because 
the record falls to show that plaintiff elected to stand by his complaint, 
cannot be sustained— .The general or der of dismissal rendered all t ,e issues 
thereby^ judicata.- In the case of Midllnsky v.B!ibin.,3*l 111.*. 378 it 
is said: -Appellant argues t at the demurrer was sustained on account of de- 
fective pleading and not on the merits. The demurrer was general and s recial 
and the decree of the chancellor and the orln'on of the Apellate Court 

disclose that the demurrers were treated as g^in* to the merits. C*rt,in It is 

-3- 



gh&t <?llant cannot succe^fu? .ly argue tiiat a der-r»e against one 
ground of relief is not res Judicata of? a claim arising on an^th^r hill, 
wfcere the two bills, so far as the esr-er-oe of fe.etr, and prayer is eon- 
cprn»d,are -substantially the same, The chancellor in this case did not 
err in sustaining V. m pit* of res Judicata". In the case of Klus v. 
Rusj»l, 353 Xll # 1?9 *-~' e court f our. j t at the dismissal of a 7 rlor suit 
u on demurrer was a good defense to a subseou^nt suit ag res Judicata and 
faid: B ?he decision fei the former case as u on the merits, and t e fact 
that it was rendered «son a. demurrer Is immaterial." 

In this court plaintiff hM filed *. notion that the Third Amend- 
ed co aplaint at Law, tendered In o*?e ^0.7070-0 be stricken from the 
record and the a dltional abstract thereof , which motion was taien with 
I ease. In the praecipe for/ record on at peal,olalntiff hi? requested 
that certain of the pleadings in said cause $o.7070-C be included in the 
record, which wag done. For a -roper determination of the issues It was 
proper and essential that such tendered Third Amended 8M] laint be in- 
cluded in the record, to make intelligible those portions of the proc<»cd- 

3 selected hy plaintiff. One taking an ap-eal ou^ht not to he permitted 
to yich §M& choose such matters of record favorable to his contentions 
and exclude those other matters explanatory thereof .which may be adverse 
to hiu.The motion is denied. 

It is the opinion of this Court that the Judgment of the trial 
court in the former action c instituted a complete defense to the i: recent 
action, «nd the trial court therefore, did not err In sustaining the , letlona 
to strike and denying leave to file additional amendments . T ie Judgment of 
the Circuit Court is affirmed. 

Affirmed. 



- 



■■■>- 



STATE OF ILLINOIS 
APPELLATE COURT 
THIRD DISTRICT 

February Term, A.D. 1949 







GENERAL NO. 9612 






LOUIS F. GILLEOPIE, as Receiver 
of the Hancock bounty Mutual 
Life Association, 

Plaintiff-Appellant, 



vs. 



F. J. REU, 



Wheat , J . 



Defendant-Appellee 



AGENDA NO. 3 

Appeal from 
Circuit Court of 
Hancock County 



3 37I.A. 213 



3- 



Plaintiff Louis F. Gillespie, as Receiver of the 
Hancock County Mutual Life Association, appeals from an order 
dismissing his suit against defendant, who was an officer of 
such Association. The issues in this case are identical with 
those in the case of Gillespie v. Heu, General No. 9611, de- 
cided by this Court at this term, (page ante), which 

opinion controls our decision in this case. 

The judgment of the Circuit Court is affirmed. 



Affirmed. 



- 



, 





















44363 

JOSEPH S. GORMAN, 



Appellee, 



v. 



WALTER R. RENKOSIAK and AL- 
FREDA C. RENKOSIAK, 

Appellants. 




APPEAL FROM MUNICIPAL 
COURT OF CHICAGO, 



-^ 



14 



i 



MR. JUSTICE SCANLAN DELIVERED THE- OPINION OF THE COURT. 
Joseph S. Gorman, plaintiff, filed his verified 
statement of clain against Walter R. Renkosiak and Alfreda 
C. Renkosiak, defendants, in which he alleged that he was 
entitled to the possession of certain premises in the City 
of Chicago, known as Apartment 2, 4418 N. California avenue; 
that he desires said apartment for his own use and that de- 
fendants unlawfully withhold possession thereof from him, 
and he claims possession of the property. There was a hear- 
ing before the court and there was a finding that defendants 
were guilty of unlawfully withholding from plaintiff the 
possession of the premises, and that the right to the posses- 
sion of the premises was in plaintiff; that plaintiff have 
judgment on the finding and recover from defendants the 
possession of the said premises, and that a writ of resti- 
tution issue therefor; that the writ of restitution be stayed 
for ninety days. A motion to vacate the judgment order was 
denied. Defendants appeal. 

Defendants contend that they "were not permitted to 
introduce in evidence their side of the issues, and there 
was no trial on the merits of the case"; that the record 
"is confusing and mostly devoted to argument, discussion 
and bickering between court and counsel," but defendants . 
admit "there is sufficient evidence in the record to show 



-2- 

what really occurred ." We do not find in the record any 

complaint made by counsel for defendants as to the manner 

in which the case was tried, and it is clear that they 

took an active part in the "argument, discussion and 

bickering." 

The record shows the following facts: That defend- 
ants were the owners of the building in which the premises 
in question are located, and that on March 26. 194-7 * they 
conveyed the building, by warranty deed, to Victoria Gordon, 
a widowj that on February l f 1947 . Victoria Gordon executed 
a written lease to defendants, Walter R, Renkosiak and 
Alfreda C. Renkosiak, of the apartment in question for a 
term commencing February 1, 1947> a nd expiring February 1, 
1948, at $50 a month; that this lease was signed by Victoria 
Gordon and the Renkosiaks; that on March 24, 1947, Victoria 
Gordon and Joseph S. Gorman, plaintiff, entered into a 
written contract by the terns rf which Victoria Gordon 
agreed to sell and convey to Gorman the building in ques- 
tion. Plaintiff offered in evidence a deed from Victoria 
Gordon to plaintiff of the building in question, but de- 
fendants then admitted title in plaintiff and the deed, 
while admitted, does not appear in the report of proceed- 
ings. 

At the conclusion of plaintiff's evidence the 
attorney for defendants made "a notion for a directed find- 
ing on the testimony of the plaintiff that the written lease 
was in full force and effect until February 1st, 1948, and 
he has accepted rent under the terms thereof." The attor- 



1 • ' •. . . 



i 



-3- 

ney for plaintiff called the attention of the court to the 
fact that the lease fron Victoria Gordon t^ the Renkosiaks 
was dated February 1, 19 4 7> and that the warranty deed from 
the Renkosiaks to Victoria Gordon, a widow, was not executed 
until March 26, 194-7, and the attorney argued that as the 
Renkosiaks owned the property at the tine the lease was 
executed to then it was void, and was, in fact, a fraud 
upon plaintiff j that Victoria Gordon did not execute the 
agreement to sell to plaintiff until after she had executed 
the lease to the Renkosiaks; that as soon as plaintiff dis- 
covered, fron an exanination of the tract record, that the 
Renkosiaks had title at the tine the lease was executed to 
then he refused to recognize it. The trial court then an- 
nounced that he would enter a judgnent order in favor of 
plaintiff but would allow defendants to enter a notion to 
vacate the judgnent order. Thereupon the attorney for de- 
fendants stated that he wanted an opportunity to subnit 
evidence to the effect that the deal between the Renkosiaks 
and Victoria Gordon was consunnated in Septenber, 1946, and 
that a deed was executed at that tine but not recorded. 
Thereupon the trial court continued further hearing of the 
cause until October 30, 1947. When the case was called for 
hearing at that tine the record tends to show that the attor- 
ney for defendants nade an unsuccessful effort to have the 
record show that they wished to subnit evidence but that the 
trial court refused to hear it. The trial court had post- 
poned further hearing to enable the attorney for defendants 
to bring in whatever evidence he wanted to offer at that 



f 



-4- 

tine. When the hearing was resumed the attorney for de- 
fendants again made an unsuccessful effort to have the 
record show that the court was denying hin an opportunity 
to present evidence, but the trial court asked hin several 
tines if there was any additional evid?nce that they wanted 
to introduce, but defendants failed to offer any. The con- 
tention of defendants that they were denied an opportunity 
to offer evidence is without the slightest nerit. It seens 
clear that what the counsel for defendants really sought 
was to interject sone statement into the record upon which 
they night nake a clain in this court that they were denied 
an opportunity to present evidence. We nay say that upon 
the oral argument in this court counsel for defendants ad- 
mitted that they were unable to produce the alleged unre- 
corded deed of September, 194-6, 

The term of the lease from Victoria Gordon to the 
Renkosiaks expired February 1, 194-8. In their brief de- 
fendants concede that their lease "terminates on February 
1, 194-8, the plaintiff would then have a right to proceed 
against the defendants to have them vacate the premises 
in accordance with due process of law." The purpose of 
this appeal is obvious, and it is high time that defendants 
surrendered possession of the apartment to plaintiff. It 
is conceded that a feeling of animosity has developed 
between the parties to this suit and that fact has undoubt- 
edly protracted the instant litigation. 

The judgment of the Municipal court of Chicago is 

affirmed. 

JUDGMENT AFFIRMED. 

Sullivan, P. J., and Friend, J., concur. 



LA 



44519 

DANIEL GAINES, 
v. 



Appellant, 



ELMER M. WALSH, Sheriff of 
Cook County, Illinois, and 
ELIZABETH SMITH, Intervening 
Petitioner, 

Appellees. 



APPEAL FROM SUPERIOR 
COURT OF COOK COUNTY. 



3 37I.A. 214 





0\ 



MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT, 

Daniel Gaines, plaintiff, filed a complaint against 
Elmer M. Walsh, Sheriff of Cook County, Illinois, in which 
he srught to enjoin the sheriff from maintaining a levy 
upon certain personal property belonging to plaintiff and 
from selling the said property. He appeals from a decretal 
order that denies him a temporary or permanent injunction 
and dismisses his complaint for want of equity. The complaint 
alleges that the sheriff, on April 6, 1948, made a levy on the 
personal property of plaintiff by reason of an execution 
issued by the Superior court of Cook county in case 
No. 44-S-11809, "in which execution the plaintiff was named 
as one of the joint debtors and the amount of the judgment 
was in the sum of $1,509.07 plus interest and cost or a total 
of $2,179.49"; that plaintiff, on April 2, 1948, "gave written 
demand to the defendant that he levy upon the following de- 
scribed real estate which is owned exclusively by the plain- 
tiff and is of the value of $12,000.00 and is unencumbered 
and is not the plaintiff's homestead." (Here follows a 
description of two parcels of real estate.) The complaint 
further alleges that notwithstanding the written demand made 
upon the sheriff to first make his levy upon the real estate 
owned by plaintiff, defendant is maintaining his deputies 



-2- 

upon the premises wherein plaintiff is conducting his busi- 
ness and is threatening to sell all of the personal property 
which belongs to plaintiff. The complaint prays that the 
sheriff be restrained during the pendency of the suit from 
maintaining the levy upon the personal property belonging to 
plaintiff and from in any manner interfering with or pre- 
venting plaintiff from conducting his business. The sheriff 

was the sole defendant n amed in the co mplaint and the only 

relief sou ght was again st that off icia l. Several days after 
the filing of the complaint Elizabeth Smith, the plaintiff 
in said case No, 44-S-11809, was allowed to file an inter- 
vening petition in the instant cause, in which she prayed 
that the injunction sought by plaintiff be denied, and she 
set up certain grounds in support of her prayer. The prin- 
cipal ground urged was that plaintiff had waived any right to 
demand that his real estate be sold before his personal prop- 
erty, by his failure to make such demand when on August 19, 
1946, he was notified by execution served up^n him, or within 
a reasonable time thereafter. The report of proceedings shows 
that there was a hearing before the chancellor upon a motion lay 
plaintiff for a temporary injunction; that at the time of the 
hearing the sheriff had not been served with a summons in the 
cause, had not entered an appearance, and that he did not par- 
ticipate in any way in the hearing upon the motion. Counsel 
for the intervening petitioner appeared and participated in the 
hearing. The sheriff has taken no part in the proceedings in 
this c-urt upon the appeal. The greater part of the report 
of proceedings is taken up by colloquies between the chancellor 
and counsel and between counsel. Plaintiff offered evidence 



-3- 

to show that the day after the levy was made upon his per- 
sonal property he served the written demand, heretofore 
referred to, upon the sheriff. It appears that on August 
2, 1946, an execution issued upon the judgment obtained by 
the intervening petitioner in said case No, 44-S-11809 and 
that it was served on plaintiff on August 19, 1946. It is 
conceded that plaintiff ignored that execution, that on 
November 1, 1945, the sheriff made a return upon that execu- 
tion, "no property found and no part satisfied," and that on 
March 2, 1948, the intervening petitioner caused another 
execution to issue on the said judgment and that it was upon 
that execution that the sheriff made his levy upon the per- 
sonal property of plaintiff. After certain evidence had 
been offered at the hearing the question arose as to whether 
plaintiff had waived his right to demand that his real estate 
be sold before his personal property by the fact that he 
ignored the first execution, and lengthy arguments were made 
by counsel for plaintiff and counsel for the intervening 
petitioner upon this question, after which the chancellor 
decided that the contention of the intervening petitioner 
that plaintiff had waived his right was a meritorious one. 
As counsel for plaintiff conceded that plaintiff's case 
rested upon the theory of law that plaintiff did not waive 
his right to demand that his real estate be first taken 
because he ignored the first execution, the chancellor then 
concluded to enter the decretal order in question. The 
intervening petitioner strenuously contends that the decre- 
tal order was entered by consent of the parties, and the 
record tends to support the contention. However, counsel 



for plaintiff insists that what he meant by the language cited 
by the intervening petitioner in support of the contention was 
that in view of the conclusion of the chancellor upon the con- 
trolling question the proper order to be entered by the chan- 
cellor was to dismiss the bill for want of equity. It is un- 
necessary, however, to pass upon the contention of the inter- 
vening petitioner. We have presented here an anomalous situ- 
ation - a decretal order entered by the chancellor that dis- 
posed of the complaint upon the merits and dismissed it for 
want of equity, although the sheriff, the only defendant 
named in the complaint, had not been served with summons, 
had not entered an appearance, and had taken no part in the 
proceedings. For some reason not disclosed by the record the 
chancellor, in the decretal order, ordered that the petition 
of the intervenor "stand as her answer to the complaint and in 
lieu of an an s wer by Elmer M. Walsh, Sheriff of Cook County. " 
It is hardly necessary to say that jurisdiction of the sheriff 
could not be obtained in that way. The intervenor contends in 
this court that the decretal order was entered at a time when 
the court had no jurisdiction of the sheriff and that the 
appeal must be dismissed upon that ground alone. Plaintiff, 
in his brief in this court, makes no attempt to dispute the 
plain fact that the trial court had no jurisdiction of the 
person of the sheriff at the time of the entry of the decretal 
order. Upon the hearing in this court of the intervening peti- 
tioner's motion to dismiss the appeal, counsel for plaintiff 
conceded that the trial court had no jurisdiction of the sheriff 
at the time of the entry of the decretal order. Upon the said 
hearing it developed that some days after the levy in question th- 



-5- 

sheriff acceded to the demand of plaintiff and released the 






levy upon the personal property; that the sheriff then levied 
upon the two parcels of real estate tendered by plaintiff, 

sold the same, and received at the sale $1,000 for the prcp- 

■ 
erty; that the $1,000 was applied upon the judgment of the 

intervening petitioner, in case No, 44-S-11809; that plain- 
tiff then paid to the sheriff the balance due upon the said 
judgment, and that that judgment has been satisfied in full. 

The grounds urged by the intervening petitioner in 
support of her motion that this appeal be dismissed are: 
(1) that the trial court had no jurisdiction of the sheriff 
at the time the decretal order was entered, and (2) that the 
complaint was dismissed by consent of plaintiff. The first 
ground is undoubtedly sound. The only objection to the 
dismissal of the appeal urged by counsel for plaintiff is 
that plaintiff intends to sue the sheriff for damages for 
levying upon his personal property, and that in such proceed- 
ing the main question will be, was the sheriff justified in 
levying upon the personal property of plaintiff; that upon 
the instant appeal plaintiff asks this court to pass upon 
that question and plaintiff would like a decision by this 
court upon that question before proceeding against the 
sheriff. It would seem hardly necessary to say that the 
objection urged by plaintiff tc the dismissal of the appeal 
has no merit. It must be understood that we are not inti- 
mating any opinion upon the question of the alleged waiver 
by plaintiff. 

The instant appeal must be dismissed, and it is accord- 
ingly so ordered. 

APPEAL DISMISSED. 

Sullivan, P. J., and Friend, J., concur. 



44670 

PEOPLE 0? THE STATE OF ILLINOIS, 

Defendant in Error, 

v. 

WALTER DONALD O'BRIEN, 

Plaintiff in Error. 




ERROR TO CRIMINAL COURT 
OF COCK COUNTY. 

3 371.1.215 



MR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT. 

An indictment containing three counts was returned 
against Walter Donald O'Brien, defendant. The first two 
charged burglary, but the trial court stated that the People 
"waived" these counts. The third count charged that defend- 
ant, on February 26, 1948, 'feloniously, unlawfully, wilfully, 
mischievously and maliciously did injure and deface a certain 
building there situate, to wit: a dwelling house, then and 
there in the lawful possession and control of Charles Stransky, 
then and there occupied by said Charles Stransky as a dwelling 
house, then and there commonly known as Number Six Thousand 
Eight Hundred Forty-six West Sixteenth Street in the City of 
Berwyn, * * * and then and there owned by said Charles Stransky^ 
and certain fixtures in said building, to-wit: dwelling house, 
by then and there prying open a certain door of said building 
and by breaking certain hooks on said door, without then and 
there having the consent of said Charles Stransky," contrary 
to the statute, etc. Defendant plead not guilty, waived a 
jury, and submitted the cause to the court for trial. Defend- 
ant was found guilty of the charge in the third count and 
sentenced to the County Jail for one year. He appeals. 

The prosecuting witness, Charles Stransky, testified 
that he was thirty-two years old; that he lived at 6846 West 
16th street, Berwyn, with his wife and son, a baby; that he 
conducted an auto repair shop in the premises; that the place 



-2- 

is a one-story building with two stores and that he lives 
in the back of one of the stores; that he occupies three 
rooms, a kitchen, two bedrooms and a hall; that there are 
two entrances to the three rooms, one from the store and 
one from the back of the building; that about 6:30 A. M, 
on the day in question he heard some noise at the back door 
that woke him up, so he got dressed and said, "'Who was it?' 
In the meantime a man broke into the door." The witness 
identified defendant as the man. Stransky further testified 
that defendant broke "through the outside door to the kitch- 
en"; that he saw the man entering; that "then I saw it was 
not a customer or any friendly, and anything friendly, so I 
says, 'Who are you, what do you want?' He didn't say any- 
thing, just looked around and walked further in, so I said, 
'What do you want?' and he kept his hand in his coat pocket 
and aimed something at me and says, 'Put them up.' I says, 
'Man, you are in the wrong place, we have no money, get out 
of here.' He kept pointing and looking toward me and said, 
'Put them up, shut up and be quiet, you goof, put them up'"; 
that "I said, 'Please don't shoot, I have a wife and baby 
here"'; that "while I was putting my hands up, I was then in 
the way, I learned in the army defense, so I turned his hand 
against him, whatever he had * * * I did not see it - ;; - * *." 
The witness then stated that he served in the infantry, the 
air force, and in several foreign armies - the French Foreign 
Legion and French Army, British Army, Polish Army, Czecho- 
Slovakian Army in Exile, and in the United States Army during 
the last war. The following then occurred: "Q. What hap- 
pened after what you already told His Honor? A. Then we 



-.'■•• 



started to fight. * * * I was trying to force him out of 
the building, and he was against me, until finally I over- 
powered him and got him out of the door, and locked the door 
after him; and in the meantime while I was fighting with him, 
my wife picked up the phone and called the police. Then the 
minute I got him to the door I went back, put my cover-alls 
on, and followed him, went through the back yard and turned 
toward Grove Avenue in the alley." The witness then de- 
scribed the arrest of defendant by the police. The follow- 
ing then occurred: "Q. Was your door locked the night 
before, when you went to bed, Mr. Stransky? A. Yes, sir. 
Q. What kind of lock did you have on the door? A. It had 
two hooks. Q. Two hooks? A. Yes. Q. Was there a key in 
the lock? A. Yes. Q. I show you State's Exhibits 1 and 2 
for identification and ask you whether that is the hooks and 
the bolt you had in your dorr? A. Yes. Q. You recognize 
these as yours? A. Yes. There is another spring,, Q And 
a spring? A. Yes. Q. Was that inside of the door or 
outside? A. Inside, it was all inside, there was no access 
from the outside. Q. Where were these exhibits laying when 
you got up that morning, Mr. Stransky, if you know, were they 
on the floor? A. No, one was hanging on the dorr, on the 
open door, and the other was hanging <-> n the door sill, it 
was broken. * * * Q. You never gave your consent to pull 
those locks or bolts off of the do-r or the spring off of 
the door? A. Ko, sir." The witness then stated that he 
had never seen defendant before the night in question. Upon 
cross-examination the witness stated that there were two 
dorrs at the back of his house, a storm door and another 



~4-» 

door; that there were iron bars on the outside dorr, an iron 
bar with a bolt from the inside; that the man took about ten 
steps or so into the house - about ten feet; that the witness 
asked him, "Who are you, what do you want?" that "He didn't 
say anything, walked a few steps and looked and then he put 
his hands in his pocket, pulled something out, and he come at 
me with his hands up. Q. He pulled something out of his 
pocket aimed at you? A. Out of his coat pocket. Q. And 
what was it he pulled out of his coat pocket? A. I don't 
know. Q, And then what did you do? A. I pleaded with him, 
I says, 'For Christ sake, Mister, please don't stay here, 
let's go away, you are in the wrong place.' * * * Q. So 
what did you do then? A. I was pleading with him, and he 
kept approaching me with that in his hand. Q. I see. A. 
He says, 'Put them up and shut up, you goof,' and several 
names he called me, I don't remember exactly every word, Q. 
And then what did you do? A. And when he got near enough, 
I made a dive for life. * * * There is such a thing as sur- 
prise in life, and I have been through it many times. * -»- * 
I grabbed his right hand where he had the object, and turned 
it against him, took him with me, caught his hands, and we 
started fighting. Q, What was this thing you saw in his 
right hand? A. If I knew I would name it exactly. Q. 
Well, describe it. A. I couldn't. You have no time to 
describe anything. I did not have time to look around wait- 
ing till this man comes at me when I had to keep him checked 
the best I could"; that when he pushed the man out he slammed 
the inside door; that the outside door was no good. An offi- 



-5- 

cer testified that he arrested the defendant about half a 
block from Stransky's place; that defendant had been drinking 
but was not intoxicated; that he smelled of liquor. Defend- 
ant testified that he was married on March 27, 1948; that on 
the evening in question he had been in a number of taverns 
and had been drinking at each; that he went intc the tavern 
at 5700 West Roosevelt about two o'clock A. M. and left there 
a couple of hours later; that he was alone when he left that 
place; that he then stopped at another tavern but cannot tell 
the location of the same; that he remembers nothing further 
until he was in the police station; that he does not remember 
being in the Stransky house because he Was too intoxicated to 
remember. 

At the conclusion of the evidence the following oc- 
curred: "Mr. Lustfield [attorney for plaintiff in error]: 
Judge, I think all the evidence is in this case, and after 
going over the facts and the witnesses, I am more convinced 
now that this is the kind of case that should have been dis- 
posed of in the City of Berwyn on a City charge. I think 
the police officers had the right idea in the first instance 
when they wanted to charge the man with disorderly conduct 
and set the bond at $200.00. (Arguments by counsel) The 
Court: Now, this is a serious crime, a man entering another 
man's home, breaking into the home through forcible entry. 
If because he took a drink of whiskey he is not guilty, you 
might just as well throw out the whole Criminal Court and 
forget all about it. We know of cases where innocent men 
have gone into the neighbor's place and suffered the extreme 
penalty because of it. I think your man is very lucky this 



-6- 

citizen didn't take the law in his own hand. Mr, Lustfield: 
I want to say this, since [the night in question] this man has 
married, and he has taken the pledge, and he has been keeping 
it pretty good , drink was his fault in all the trouble, the 
man is now married after this happened and he has taken the 
pledge, is that right? The Defendant: Yes. The Court: Very 
well, there will be a finding of guilty on Count 3 of the 
indictment. Now, you want to offer some evidence in mitigation 
or aggravation? Mr. Lustfield: I think, Judge, you have all the 
facts as much as I can give to you. The Court: What about 
the record you arc talking about? Let's see the record. Four 
months in the House of Correction for burglary; in 1935 you 
got 60 days in the House of Correction for tampering with an 
auto, Mr. Lustfield: 1935 — 13 years ago. The Court: Nine 
months in the House of Correction; in 1938 he was sentenced 
to Joliet, how much time did you spend there? The Defendant: 
Five and a half years. The Court: Transferred to Pontiac 
and paroled. For drunkenness and violation of parole; back 
in 1945 he got 60 days in the county jail, 60 days and a 
dollar fine, if you know drink affects you to that extent, 
why don't you stay away from it? The Defendant: I took the 
pledge. The Court: You can't come in here pleading intoxi- 
cation after having this record. There will be a commitment 
to the county jail for one year. Mr. Lustfield: J udge f can't 
you cut that dow n, he is married now, and took the pledge f cut 

it down to six months. The Court: No* I can't. Bxc ept for 

t he waiv er b y the State of the other t wo counts , I would have 
felt j ustified in holding him for burglary." 

Defendant is an habitual criminal and he received more 



-7- 

consideration than he deserved when the People waived the 
two counts that charged burglary. The record shows that the 
sole defense interposed was that defendant was intoxicated 
at the time he committed the offense. At the time of the 
trial the experienced counsel for defendant simply pleaded 
with the trial court to cut the sentence from one year in 
the county jail to six months because defendant, after 
committing the offense in question, married and had taken 
the pledge, and " he h a s be en keepi ng it pretty good "; that 
"drink was his fault in all the trouble." It is difficult 
for us to understand why the People, in the light of the 
criminal record of defendant, waived the two counts for 
burglary. As the trial court stated, defendant was lucky 
that S trans ky did not take the law into his own hands. 

The principal point made in support of this appeal 
is "that there is no proof of intent to injure or deface 
the building nor of any feeling of malevolence or revenge 
toward the owner thereof." Malicious mischief is the wanton 
or reckless destruction of or injury to property. If we 
assume, for the purposes of this appeal, that it was neces- 
sary for the People to show malice on the part of defendant, 
nevertheless, malice may be, and frequently must be, in- 
ferred from the nature of the act itself and from the cir- 
cumstances which accompany and characterize it. In arguing 
that there is no evidence that defendant showed any feeling 
of malevolence toward Stransky counsel asks us to ignore the 
testimony of Stransky as to what occurred at the time in 
question because, counsel states, Stransky' s testimony was 
merely an effort to dramatize an imaginary fight between 



-8- 

hinself and defendant, and that we should find that defendant 
cane to the back of Stransky's hone thinking it was the rear 
entrance of a tavern and that he was merely "floundering 
around" in Stransky's hone trying to get just one more drink. 
We are asked to forget the fact that defendant is an habitual 
criminal and to assume that drink was to blane for all of his 
troubles. As to the argument that there was no actual damage 
to the building or fixtures in the building, it is sufficient 
to say that counsel, in the brief filed, admits that defendant 
opened the outer door by pushing hard enough to pull the hooks 
eyes out of the door frame. Counsel, forgetting that he 
pleaded with the trial court to make the punishment six 
months in the county jail, concludes the brief filed by 
asking us to hold that the evidence is only sufficient to 
sustain "a drunk and disorderly charge," and that we should 
reverse the instant judgment without remanding the cause, 
W^£5^x&^&23^x:texx:fcx:te£&3ax^K:^RX^^^ 

There is n<~ merit in this appeal. The record shows 
plainly that an habitual criminal has been treated too 
leniently. 

The judgment of the Criminal court of Cork county 

is affirmed, 

JUDGMENT AFFOTED. 

Sullivan, P. J., and Friend, J., concur. 



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Abstract 

Gen. No. 10326 IN THS 

APPSLI. " GOBRT OF ILLINOIS 
SECOND DISTRICT 
OCTOBER TEEM, A. D. 1948 







r '1LB0R V. VILLMEROTH, 

Plaintiff and Appelle*, 

vs 

HENRY G. SIENABER, Feliee Mag- 
istrate of th<= "ity of P ru, 
Illinois, ) 

D»f»ni nt anl Appellant. ) 



Appeal from 
Circuit Court, 
LaSalls County 
Hon. Roy Wllhelsi, 
Presiding Juage, 

3 37I.A. 215 



Bristol? , J. 

A eonplalnt w a fil*d in the office of the Cincult Clerk 
of La Sail* County seeking recovery of the statutory penalty 
provided for in Section 36 of Chapter 79 of the Illinois Re- 
vised Statutes, 1945 Edition. It was therein provided th 
suoh penalty wp.s recoverable in the event a Justice of Peace or 
Police Magistrate i-nonop fl> rly refused to grant a change of v-nue. 

Th* 3 defendant in answering this comolaint alleged, aimng 
other aliegatl ma, that "a ch ng^ of venu* had orevlouily b*en 
granted to th* defendant in said cas" of Wlllaereth v. Olson by 
th* Justice of th* P* ce before whom the original suit was insti- 
tuted, so that this defendant , having received said case on a 
I change of v*nus, was without Jurisdiction to authorize or grant 
a second change of venue. The Statutory penalty provided for in 
said S*cti-m *6 is applicable only to a 'suit or proceeding 
institute* and then pending' b»fore a Justic* of the Pedes or 
Polios Magistrate who r o fus<=>9 to grant a Shangs of v»nu*, said 
Statutory penalty not b*ing oollcabl^ to a suit pending but not 
instituted befor* such Justice of the Peace or Police Magistrate." 



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The appellee herein institute! s . suit in forcible *»ntry 
and detainer in the Justice Court of Chester ^rusko^ski in 
the Township of Peru in the County of La Salle. The defendant 
in that proceeding then filed his peitltton and affadavit seek- 
ing a change of venue from Judge fTuskowski. ' i; he change of 

/ v j nue was allowed and the c^use was transferred to the court 
of Police Magistrate Henry C. Nlenab°r, pregpnt appellant. 

JF Thereupon, appellee requested a change of venue but was denied. 

The cause was then heard by Judge Ni»naber who found the is?ues 

for the defendant, 
this 
Thereafter , /suit w •• a brought in the Circuit Court of La 

Salle County. T^e Court heard this cause without a jury, founl 

the 'issues for the plaintiff, and entered Judgment for him in 

the sum of One Hundred ^ollars ($100) and costs. This appeal 

■? followed and presents the sole inquiry as to whether appellant 
improcerly denied appellees petition for a change of venue. 

/ The two sections of the Statutes applicable to this inquiry 
appe r in ^h pter 79, s »cti ns 34-36 of the 1945 Illinois Revised 
Statuses. They read as follows: 34; "Previous to the commence- 
ment of any trial before a Justice of the peace, or police magis- 
trate, either party, or his agent or attorney, may make eath 
that it is the belief of such deponent that the plaintiff or 
defendant, as the case may be, cannot have an impartial trial 
before such .Justice, or oollce magistrate, whereupon it shall be 
the duty of the Justice or police magistrate, immediately to 
transmit all the papers and documents belonging to the action 
to the nearest Justice of th° peace in the sane county, who is 
not of kin to either party, sick, absent from town, or Vnter°stel 
in the ev°nt of th» action, es counsel or otherwise, who shall 
Droceed as if th* • ction had been instituted before him. x he 
distance as contenrolatei in this section shell mean to bi by the 

nearest traveled route." 36; "Any Justice of the peaOO cr police 

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magistrate who shall refuse a change of v^nue in any suit or 
proceeding instituted and then periling before him, upon the 

orooor application being made as orovilel for In this act, 

I 

f shall forfeit and pay to the person agyrievd, one hundred dol- 
lars, to be recovered by action of deb'; in any court of conpe- 
tent Jurisdiction." It is interesting to observe that the 1947 
Legislature passed an amendatory act which precludes any fur- 
ther" quention on the issue unler consideration. *t reads as 
follows: "Previous to the commencement of any trial before 
a justice of the peace, or police magistrate, ^lth^r party, or 
his agent or attorney, may make oath that it is the belief of 
such deponent that the plaintiff or defendant, as the case may 
be, cannot have an impartial trial before such Justice, or po- 
lice magistrate; whereupon it shall be the duty of the justice 
or police magistrate, immediately to transmit all of the papers 
«nd documents belonging to th» act on to the near°st Justice 
of the re^ce in th» a <w* county, who is not of kin to either 
oarty, sick, absent from town, or Interested in the event of the 
action, as counsel or otherwise, who shall proceed as if the 
action h- d been instituted before him. After one change of venue 
has b^en had unler this S°cti on and before the commencement of 
the trial before the Justice of the peace to whom the case was 
transferred, the oarty who did not request the first change of 
venue, or his ag*nt or attorney, may make oath that it is the 
belief of such deponent "hat the plaintiff or defendant, hs the 
case may be, cannot have an impartial trial before the Justice 
before whoa the case is nov oenling, whereupon it shall be the 
iuty of such Justice Immediately to transmit all the papers and 
locum«»nts belonging to the set Ion to the nearest Justice of the 
pepce, excluding the Justice before v r h->-n the action was origin- 
ally brought, in the same county vho is not of kin to either 
oarty, sick , absent from town, or Interested in the *vent of the 
action, as counsel or oth°rwlse, who shall proceel as if the 

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the action had been institute! befor° him. *he distance p.s 
contemplate! in this s°cti->n shall Man to be by the nearest 
traveled route." 

As heretofore, .Indicated, secti on 34 proviies that "either" 
p-^rty may h r, ve a change of venue. Does "either" mean that just 
one party to a proceeding has a right to a change of v°nue or 
ioes it mean that such a right is extended to sash o rty? We 
?r° of the opinion that the trial court was correct in his con- 
clusion that the sensible, reasonable and Just interpretation 
of the statute unler consideration g^.v° the appellee a right to 
have a change of v°nue from appellant. 

Ch-nge of v=>nue statutes must receive a reasonable con- 
struction to promote the ends of Justice. 3qq. Gre^ry Minting- 
Co . v. ppVor^y . 257 III. 393; Chicafn. Burlington fr Quincy Rail - 
ropd Co . v. Perkins . 125 111. 127. The object in onRtruing a 
statute is to ietermin° anl give effect to the legislative in- 
tent. To ascertain such intent courts shall toko into consid- 
eration the whele c" , the lav; as it exist" i prior to Its massage, 
the changes pa ie by the new act and the purpose for making such 
changes. n h» People ex rel. Shrlv^r v. Frailer . 386 111. 620, 6£4. 

The ease of H*rb*rt v. Beathar i , 26 Kans. 746, Is the only 
c- se cited that determined the precis question involve! in this 
appeal. The statute which the Kansas Court consider^} in almost 
ilentical with Sect on 54. In the decision it was hell unten- 
able the claim that because one party had already obtained a 
change of venue, no other change would be allovei. 

Many authorites have b a »n sited in the brief? of apoellee 
and aopellan 1 " giving the vr-.rlable in^eroret?. 1 -! ^ns that have been 
given tc "h° vori 'either" as it appe rs in iifferent statutory 
on-ctments. Wp teen it unn^csaary to burden t 1 is opinion by 
analyzing anl aoolyin^r or listintrulshlng sash ofthose citations. 

JUDGMENT AFFIRMED. 
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44258 

WILLIAM JACKSON, 

v. 



Appellee, 



NICHOLAS ROMANCHUK, 

Appellant. 



3 37I.A. 282 



APPEAL FROM SUPERIOR 
COURT, COOK COUNTY.- 



MR, JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT. 

While crossing 'Western avenue near the intersection 
of Warren boulevard, in Chicago, on February 11, 1947, 
plaintiff was struck and injured by defendant's automobile. 
Plaintiff's suit for damages resulted in a verdict against 
defendant in the sum of $13,000.00. Motions of defendant 
for a directed verdict at the close of all the evidence 
and for judgment notwithstanding the verdict were denied, 
and judgment was entered on the verdict. Defendant appeals. 

The accident occurred about six o'clock in the 
evening, after dark. Plaintiff, aged 52, was walking west 
on the north side of Warren boulevard. As he approached 
the intersection of Western avenue, the traffic light 
on the northeast corner was green for traffic moving east 
and west. As he stepped from the curb onto Western avenue, 
he looked across to the southwest corner and observed that 
the light was still green. -He then proceeded west to the 
middle of the intersection, and when he reached a point 
between the two street-car tracks on Western arenue, the 
lights changed to amber. He testified that he then stopped 
at approximately the center of Western avenue on the north 
crosswalk of Warren boulevard, about six feet east of the 
safety island which was located beyond the south-bound car 
tracks on the western side of Western avenue. North and 
south-b~und traffie, which had been standing on Western 



-2- 

avenue, started up when the light changed, and he stated 
that he did not continue to the safety island because 
south-bound automobiles in the car tracks on the east 
side of the safety island started up and got in his way. 
According to his own testimony, he then turned and left 
the north crosswalk of Warren boulevard, and walked north 
in Western avenue between the street-car tracks and the 
moving lines of traffic on Western avenue to a point 50 to 
100 feet north of the crosswalk. When he reached this 
point he stood and waited for the south-bound traffic to 
pass in front of him, with the evident intention of finding 
a break in the traffic in order to walk across the balance 
of the street. He was thoroughly familiar with the inter- 
section, and knew that traffic was heavy at that hour of 
the evening. While plaintiff was standing in the middle 
of the street, watching the south-bound traffic moving in 
front of him, and evidently without looking to the south, 
defendant's automobile struck and injured him. 

It appears from the evidence that defendant was 
driving his automobile north on Western avenue. As he 
stopped for the red light on the south side of Warren 
boulevard, his car was straddling the east rail of the 
north-bound street-car track, and was third in line behind 
two other cars, with two other cars to his right. When 
the light turned green, he started up and drove north 
across Warren boulevard, still straddling the east rail 
of the north-bound street-car track, and he stated that there 
were about 15 to 20 feet intervening between the front 
of his car and the rear of the preceding automobile. He 




-3- 

stated that he was looking straight ahead, that his lights 

were on, and that his vision was not impaired; that as he 
was shifting into high gear, after crossing into Warren 
boulevard, plaintiff suddenly loaned up in front of him; 
that his speed at that tine did net exceed 10 miles per 
hour; that he immediately applied his brakes and swerved 
to the left about 3 to 5 feet in an attempt to avoid 
hitting plaintiff, but that the right front fender of 
his car struck him. Policemen who appeared upon the 
scene later testified that the brakes and mechanism on 
defendant's car were in good order, and that the car 
could be brought tc a stop within 17 feet traveling 20 
miles an hour. One of the witnesses who appeared on the 
scene after the accident testified that plaintiff was 
lying across the west rail of the north-bound street-car 
track about 50 feet north of Warren boulevard, and that 
defendant's automobile was about 47 feet north of that 
street. 

As grounds for reversal it is urged that plaintiff 
was guilty of contributory negligence as a matter of law; 
that there is no evidence tending to prove that defendant 
was guilty of negligence; that the verdict and judgment 
are contrary to the manifest weight of the evidence; that 
the court erred in instructing the jury; that it was rever- 
sible error for plaintiff's counsel to elicit information 
from one of the witnesses leading the jury to believe that 
defendant carried liability insurance; and that the award 
of damages was excessive. 

In the view we take, only one of these questions 
needs to be considered. The evidence is uncontroverted 



X 



that plaintiff left the crosswalk before he reached the 
safety island, and proceeded north on Western avenue to 
a point varying between 50 to 100 feet, walking between 
moving traffic up the middle of Western avenue. He was 
obviously seeking a short cut to the west side of the 
street north of the intersection. He admitted that he 
did not observe defendant's automobile until it struck 
him. If, as plaintiff claimed, he was prevented by moving 
south-bound automobiles from continuing along the crosswalk 
the 6 or 7 feet to the safety island after the lights 
changed, he could have remained on the crosswalk until a 
break in the traffic permitted him to proceed. 

These circumstances, taken in connection with the 
evidence that defendant was observing the traffic signal 
and following behind two other automobiles as he crossed 
Warren boulevard at a reasonable rate of speed, impel us 
to conclude that the verdict was against the manifest 
weight of the evidence both as to the alleged negligence 
of defendant and the alleged exercise of duo care for his 
own safety on the part of plaintiff. Plaintiff argues 
that just before the accident he was standing slightly to 
the west of the middle of the car tracks, and that the 
proximate cause of the accident was defendant's negligence 
in driving slightly to the west of the center line of the 
tracks where plaintiff was standing. However, defendant 
testified that he was in the lane of north-bound traffic; 
that he did not cross over to the left until suddenly 
confronted by plaintiff's presence; and that he then 
swerved to the left in an effort to avoid the collision. 



-5- 

We think that justice will be served by a retrial of 
the cause. Since it will in all likelihood be retried, we 
deem it unnecessary to consider the other grounds urged 
for reversal. 

For the reasons indicated, judgment of the Superior 

Court is reversed and the cause is remanded for a new 

trial. 

Judgment reversed and cause 
remanded for a new trial. 

Sullivan, P. J., and Scanlan, J., concur. 



44315 

ALICE VENTURELLI, 





Appellant, 



v. 



CITY (F CHICAGO, a 
!unicipal Corporation, 

Appellee. 



Mr 

I. 



APPEAL FROM SUPEFIOR 
COURT, COOK COUNTY. 



3 87I.A.283 



MR. JUSTICE FFIEFD DELIVERED THE OPIFIOF OF THE COURT. 

The plaintiff, Alice Venturelli, sued the City of 
Chicago for damages resulting from an injury sustained while 
walking upon an alleged defective crosswalk constructed by 
the city in front of her hone. The jury returned a verdict 
in her favor in the sun of $6500.00. Thereafter defendant's 
notion for a new trial was overruled, but judgment notwith- 
standing the verdict in favor of defendant was entered, and 
plaintiff appealed. 

Aside from the nedical evidence pertaining to the 
nature and extent of the injury, only two witnesses testi- 
fied upon the hearing, both on behalf of plaintiff. Defend- 
ant offered no evidence upon the trial. One of the wit- 
nesses, Julia Ousley, a neighbor, testified that in April 
1944, the Bureau of Water Pipe Extension installed a short 
crosswalk extending east and west across the parkway area 
fron the main sidewalk to the curb in front of H306 and 
11308 Chanplain avenue in Chicago. After the walk was in- 
stalled and a canvas placed on it, one of the workmen walked 
over the covering, leaving several foot impressions, two or 
three inches deep, in the freshly laid concrete. The walk 
was installed directly in front of plaintiff's hone, and re- 
mained in that condition until July 31, 1944. On that day, 
at about five o'clock In the afternoon, plaintiff was re- 



-2- 

turning from the market with a bag of groceries which she 
carried in one arm, and her purse in the other. The store 
was located at 113th street and Langley avenue, which is 
one block east of Champlain. On her way back home plain- 
tiff walked east along the south side of 113th street to 
Champlain, then south to a point opposite the walk in 
auestion. As she crossed the street toward her h me she 
observed that the crosswalk upon which the accident 
occurred was submerged under one or two inches of water 
which had remained there after a neighbor sprinkled the 
grass along the walk, as he had frequently done. Plain- 
tiff on cross-examination testified that "I knew there 
was water on the sidewalk before I approached the sidewalk. 
I knew there were those footprints on the sidewalk too. 
And knowing all that I proceeded to cross the curb-walk. 
*--::-*- 1 proceeded to walk through that water. It was a nice 
day. **-*- I suppose I could have gone to 11304 [next door] 
instead of walking through this water. I knew the sidewalk 
was pretty bumpy and I could pick out the place to step in, 
I knew that condition was there before I stepped on the 
sidewalk -«-** but I thought I would be able to pick out the 
even spots, #*# I had forgotten where it [the hole] was at 
the time *#■*, j knew it was there some place. *#* On 
previous occasions he [the next-door neighbor] had sprinkled 
in the same manner, getting the sidewalk wet. I saw that 
condition of the sidewalk since about April, *#* when they 
put in the sidewalk, I saw that condition from day to day 
because it was right in front of my house." Plaintiff was 



-3- 

asked when she first noticed that the sidewalk was almost 
totally submerged under water, and she answered, "As I had 
crossed the street to go home from the store." In answer 
to the question, "You knew that there were these fortprints 
on the sidewalk too?", she answered, "Yes, sir." Further 
cross -examination was as follows: "Q. Knowing all that, 
you then proceeded to cross that curb walk, didn't you? A, 
I did. *** Q. You could have gone on 11304? A. I suppose 
I could have, *~"~* Q. But you decided to go over the side- 
walk regardless of the condition of the water being on there 
and the footprint being on the sidewalk? A. I knew the 
sidewalk was pretty bumpy, and I could pick out the places 
to step in. Q, You knew that condition was there before you 
stepped on the sidewalk? A, I did. Q. So that when you 
started walking over that sidewalk, you knew it was pretty 
bumpy, and you thought you were going to pick out the even 
spots., is that right? A. That is right. *** Q. You say 
you saw that condition in the sidewalk, Mrs. Venturelli, 
since about April, as you recall it, that they put in that 
sidewalk? A. That is right, Q. And you saw that condi- 
tion there from day to day, because it was right in front 
of your house, is that right? A. That is right." There 
was no occurrence witness ether than plaintiff, and her 
testimony constitutes the entire record on the question of 
liability. 

At the close of plaintiff's case the court said: 
"There is a grave, grave question in my min^. but I think I 
am going to let you go to the jury and let them put on 
their defense and I will see what the jury does with the 



_4~ 

matter and I am going to hear counsel [for defendant] on his 
motion [to direct], *** I can always control the verdict. 
I will just take your motion under advisement and not pass 
on it." 

The only controverted question is whether plaintiff 
was in the exercise of ordinary care for her own safety at 
the time of the happening of the accident. Whether a plain- 
tiff has been guilty of contributory negligence is ordinari- 
ly a question of fact for the jury. However, this general 
rule, upon which plaintiff relies, and in support of which 
her counsel cite numerous Illinois cases, is subject to an 
exception that is well stated in Scr uggs v, B alti mor e & 0. 
R. Co. . 287 111. App, 310, as follows: "The question of 
whether a plaintiff has been guilty nf negligence which 
proximately contributed to her injury, is ordinarily one 
of fact upon which she is entitled to have the finding of 
a juryj but where circumstances are such that all reason- 
able minds, judging honestly, must agree that she was thus 
negligent, and that same was a proximate contributing cause 
of the accident, the question then becomes one of law which 
the trial court is obligated to assume the responsibility 
of deciding, 64 Corpus Juris, p. 462, sec. 440." In 
Vock e v. C ity of Chicago, 208 111. 192, the court said that 
"If one knows of the dangerous condition of a street he must 
exercise reasonable care in proportion to the known danger. 
That fact would call for the exercise of a higher degree of 
care than would be required In the absence of such knowledge 
or where the person using the street would have a right to 
presume that it was reasonably safe." In the early case of 



-5- 

the City of Quincy v. 3arke r, 81 111, 300, it was held that 
m .7hile the law requires a municipal corporation to keep its 
streets and sidewalks in a safe condition, and clear of all 
dangerous obstructions, yet a person who travels over the 
streets or sidewalks has no right recklessly to walk into 
danger, and if he does so he can not recover for an injury 
received. The pedestrian must exercise due and ordinary 
care to avoid danger, and where he fails to do so, and if 
it appears, had that precaution been observed, the injury 
could have been avoided, no recovery can be had." In the 
recent case of Rola nd v. Cit y "f C h icago (Abst.), 328 111. 
App. 320, the facts ware strikingly similar to those of 
the case at bar. In the Rolan d case plaintiff had sustained 
injuries as the result of a fall in a depression in an alley 
over which she had walked for about eight months. On the 
ground that she did not exercise care commensurate with the 
known conditions which confronted her, the reviewing court 
reversed the judgment of the trial court in her favor, and 
held that defendant was entitled to a directed verdict. 
There the court quoted the pertinent rule enunciated by the 
Supreme Court in Illinois Cent ra l R. R. Co. v. Oswald f 338 
111. 270, that "In the absence of willful or wanton injury 
on the part of the defendant the plaintiff cannot recover 
in an action for personal injuries unless it appears he was 
in the exorcise of ordinary care for his safety, and in such 
case it is the duty of the court to direct a verdict for the 
defendant if there is no evidence tending to show affirma- 
tively that the plaintiff was exercising due care or %o raise 
a reas-nable inference of such care. A party has no right 



—c— 

to knowingly expose himself tr danger and then recover dan- 
ages for an injury which he might have avoided by the use of 
reasonable precaution." In Rei ter v. Cit y of Chicago (Abst.), 
303 111. App, 60, the court held that a careful examination 
of the record in that case made it clear that plaintiff was 
n^t in the exercise of due care for his own safety, and said 
that "According tr his own testimony, he was familiar with 
the defects in the alley, which had been in a state of disre- 
pair for many months, and had crossed the alley at the place 
where the accident occurred many times each day, and he could 
easily have avoided the accident by the use of reasonable care 
for his own safety by walking along the other side, which was 
perfectly safe and smooth. Even though the city may have been 
negligent in allowing the alley to remain in a state of dis- 
repair for so long a time, it should still not be held liable 
under a clear case showing that plaintiff was net in the exer- 
cise of due care for his own safety. -*-"-* There is no evidence 
in this case to indicate that Reiter exercised due care for 
his own safety; in fact the evidence, including his own testi- 
mony, is all tr- the contrary. Upon this state of the record, 
it was the duty of the court to direct a verdict in favor of 
the city and its failure to do so constitutes reversible 
error," 

We think these decisions express the prevailing rule 
in this state. In the most favorable light in which the 
testimony hereinbefore set forth may be considered, it is 
obvious that at the very moment plaintiff stepped into the 
water m the walk, she was conscious of the presence of the 
holes and rough spots with which she was thoroughly familiar. 



~7~ 

Her own testimony shews that she knew there were holes in the 
walk, and while approaching it and before she reached it, she 
knew it was covered with water; nevertheless she deliberately- 
decided that she could and would walk through the water and 
avoid the holes. Thus, with full knowledge that she was 
placing herself in a position of danger, she made her choice, 
and was injured. Her own testimony shows that she failed to 
exercise ordinary care for her own safety. It may be con- 
ceded that where there is any evidence before the jury which, 
taken with its reasonable inferences in its aspect most 
favorable to the plaintiff, tends to show the use of due 
care, the question is one for the juryj but whether there 
is any such evidence is a question of law. Dee v. C ity of 
Peru, 343 111. 36. We think that in the case at bar all 
reasonable minds would agree that the proximate cause of the 
accident resulted from plaintiff's own negligence, and under 
the circumstances it became the duty of the court to hold as 
a matter of law, upon her testimony, that she was contribu- 
tor ily negligent. Accordingly, the judgment should be 
affirmed, and it is so ordered. 

Judgment affirmed, 

Sullivan, P. J., and Scanlan, J., concur. 





I.A. 284 



APPEAL FROM CIRCUIT 
COURT, COOK COUNTY, 



44359 

GEORGE E. MATHIS and WILLIAM 
MATHIS, Go-partners, doing 
business as GEORGE E. MATHIS 
& SON, Appellants, 

v « 

CITY 0? CHICAGO, a Municipal 
Corporation, 

Appellee, ) 

MR. JUSTICE FRIEND DELIVERED THE- OPINION OF THE COURT. 

Plaintiffs brought suit to recover, upon a quantum 
meruit, the reasonable value of the work and labor performed 
and material furnished by them to defendant under a written 
contract between the parties known as M— 3* dated October 24, 
1941, for the furnishing and installation of ventilating 
equipment for the State Street and Dearborn Street subways 
in Chicago, The complaint consists of two causes of action, 
in the first of which plaintiffs sought to recover the fair, 
reasonable and market value of all labor and materials fur- 
nished, and in the second they asked for damages for breach 
of contract by the defendant. In the course of the trial, 
plaintiffs elected to stand on the first cause of action, 
and thereupon they withdrew the second cause of action, and 
all evidence relating thereto was stricken from the record. 
At the close of plaintiffs' case, upon motion of the defend- 
ant, the court found in favor of the defendant, and entered 
judgment accordingly. Plaintiffs have taken an appeal. 

Two voluminous printed documents constitute the con- 
tract between the parties: one is described as "Contract 
Requirements and Contract Plans for Ventilation Equipment, 
Contract M-3, for the State Street and Dearborn Street Sub- 
ways, issued by City of Chicago, Department of Subways and 
Superhighways, August, 1941"; the other document is entitled 



~2~ 

"Standard Specifications for Subway Construction, General 
Conditions-Section I, General Conditions-Section II, issued 
by City of Chicago, Department of Subways, February, 1940." 
Both of these documents were received in evidence, and to- 
gether with the testimony adduced upon the hearing and 
various letters that passed between the parties, constitute 
the record in the case. 

Plaintiffs as contractors agreed to perform the work 
required under contract M~3 which included furnishing and 
installing ventilating fans, electrically operated louvers, 
miscellaneous steel and temperature— recording Instruments 
for the State Street and Dearborn Street subways. They were 
required by written notice of the defendant on November 7> 
1941 to commence work not later than on November 12, 1941 • 
On November 30, 1942, after the work had been in progress 
for approximately one year, defendant notified plaintiffs In 
writing (plaintiffs' exhibit 7) to discontinue certain as- 
pects of the work In the Dearborn Street subway. Inasmuch 
as the construction of exhibit 7 constitutes one of the 
principal controversies at Issue, we set out the pertinent 
portion thereof as follows: "You are hereby instructed not 
to erect any louver operators in the Dearborn Street Subway 
at this time, as we feel that if these units, which consist 
of a gear transmission in a cast iron case with a fractional 
horse power motor, were installed now, they would deteriorate, 
as they might stand for a year or two without being operated. 
We will advise you at some future date, when the operators 
are to be installed. This does not apply to the louvers 
themselves, which you will erect as soon as possible. You 



-3~ 

will, therefore, deliver the Dearborn Street louver operators 
and operating mechanisms, such as cranks, forks and pipe link- 
age, to our warehouse after we have made an inspection of sane 
at your plant in Chicago. You will install the louvers then- 
selves, conplete with frames, shafts and bearings in the 
Dearborn Street Subway, at this tine, **» in your reply, 
please state whether this arrangement neets with your approv- 
al. The cost of storing the Dearborn Street operators will 
be paid for by the City of Chicago." 

Decenber 8, 194-2 plaintiffs replied to this communi- 
cation as follows: "In answer to your letter of November 30, 
194-2, it is our understanding that the Dearborn Street Subway 
may stand idle for a year or two, therefore tying up the 
balance of our contract. We feel some arrangement should be 
made to take care of the balance of reserve involved, plus 
any cost to us incurred by postponement of the Dearborn Street 
Subway. " 

Subsequently, on March 5, 1943, plaintiffs again sent 
a letter to Charles E. De Leuw, acting chief engineer, de- 
partment of subways, as follows: "We are advised that after 
the completion of a certain portion of our work upon the 
Dearborn Street Subway, no further material is to be furnished 
nor labor performed upon this subway, *»* By this decision on 
your part we are confronted with a number of problems, ***»' 
These problems, pertaining to ventilating fans, electrically 
operated louvers, miscellaneous steel and temperature-record- 
ing instruments, were treated in detail, and plaintiffs con- 
cluded their letter by saying that "in view of the uncertainty 
as to when the Dearborn Stre-t Subway is to be completed, due 



I ■ 



1 I . 



\ :\4 ■ :> 



L ' 



■ 1 ' 



I-- • '■ 



_4~ 

to the fact that we are informed that the peg tenement 'Is 

indefinite, we believe that we are entitled to be advised 

as to your attitude with respect to each of the natters set 

forth ***. Will you please let us hear from you in due 

course," 

In its letter of May 19, 1943, defendant sent the 
following reply: "Your letters dated December 8, 1942 and 
March 5, 1943> referred to the delay in the completion of 
your work on the Dearborn Street Subway and requested advice 
as to our plans for the continuation of this work. As you 
know, this situation has arisen because of restrictions im- 
posed by the War Production Board in the procurement of 
critical materials. However, it is our desire to complete 
all of the work under your contract at the earliest possible 
moment. Article 15' — Unavoidable Delays — General Conditions — 
Section II of Standard Specifications for Subway Construction, 
provides: 'Should the contractor be obstructed or delayed in 
the commencement, prosecution or completion of th -1 work under 
the contract by any act or delay of the City, including any 
delay- due to not acquiring necessary right-of-way within the 
limits of the work specified *** war *** then the times fixed 
for the completion of the work to the extent specified shall 
be extended for a period equivalent to the time lost by reason 
of any of the aforesaid causes mentioned in this article, Ho 
such allowance of time shall be made, however, unless notice 
in writing of a claim therefor is presented to the Commission- 
er before the last day of each succeeding calendar month ***,« 
Because of the unpredictable extent of the period which you 
may be delayed in completing the work under this contract, 



_5~ 

it is not deemed necessary that the specified claim be filed 
by you each month, but it is essential that you file an 
initial claim requesting an extension of time in which to 
complete the work. Such action on your part is prerequisite 
to our clearing for payment such items mentioned in your 
letter which may be classified as delay damages under the 
terms of the contract." 

July 7, 194-3 plaintiffs addressed the following 
communication to defendant: "We acknowledge receipt of 
your letter of May 19, 1943. By reason of your decision 
to delay to an indefinite time in the future the completion 
of the work on the Dearborn Street Subway and in accordance 
with Article 15, Unavoidable Delay, General Conditions, 
Section 2 of Standard Specifications for Subway Construc- 
tion, we give you this notice, in writing, of our claim." 
The letter then sets forth in considerable detail the nature 
of plaintiffs' claim, and concluded by saying that "when the 
City determines to renew the construction of the Dearborn 
Street Subway, we should be paid for all of the items as 
provided in Article 15 of 'the General Conditions as well 
as a percentage for overhead and profit on such additional 
work due to such delay." 

On July 16, 1943 defendant wrote plaintiffs as 
follows: "From the content of your letter of July 7, 1943 
**» it appears that we are not in substantial agreement on 
a number of the items in question. In order to work this 
matter cut to a satisfactory conclusion, it appears neces- 
sary that we hold another conference for the purpose of ad- 
justing those items on which we are not in agreement. Please 



~6~ 

advise when you will be willing to attend such a conference. " 

At the conference, held July 21$ I.943, the parties 
failed to reach an accord, as evidenced by plaintiffs' 
letter of August 4, 1943 which they concluded by saying: 
"We have carefully and exhaustively considered the situation 
and have cone to the conclusion that we must insist upon our 
claims as outlined in our letter to you cf July ?$ 194-5." 
On October 1, 1943 plaintiffs proposed in writing 
"the following as a disposition of our controversy with the 
City respecting our contract: 1. A reasonable extension of 
tine to conplete our contract, which we now request in 
accordance with provisions of Article 15 — General Condi- 
tions — Section II — Standard Specifications for Subway 
Construction, where, as at present, we have been unavoid- 
ably delayed by the act of the City. 2. The City is to 
release to us,, within a reasonable tine, the sun of 
$16,699,47, being the balance due us on the portion of the 
contract known as the State Street Subway. 3. The City 
is to reimburse us for all storage and insurance costs on 
material stored by us at your request in the warehouse 
designated by you until the City takes over the storage and 
insurance of such material. 4, All maintenance work on all 
naterial or equipment furnished by us, and which work nay be 
ordered by your departnent, shall be paid on the basis of 
erst plus fifteen percent. % Nothing herein contained 

shall constitute or be considered a waiver of any claim 

we 
which/nay now have on account of the City's delay in the 

construction of the subways " 

Thereafter the following occurred: (1) the tine to 



-7- 

ccnplete the contract was extended because cf conditions re- 
sulting from the war; (2) on December 1, 1943 the city coun- 
cil (C.J. p. 902) passed an order authorizing the commission- 
er to pay the contractors $l6,700„00,. and that sum was paid 
to then; (3) that council order also authorized the commis- 
sioner to pay the contractors $200.00 to cover their cost of 
insurance and storage of equipment, and that sum was paid to 
the contractors} (4) the commissioner agreed to pay the con- 
tractors for maintenance work on all materials and equip- 
ment furnished by the contractors and ordered by the depart- 
ment on the basis of cost plus fifteen per cent; and (5) the 
contractors reserved the right on completion of their work 
to present any claim they thought proper for extra compena- 
tion on account of unavoidable delays based on the provi- 
sions of article 15 of S.S.S.C, 

On June 1, 1945 plaintiffs rescinded their contract 
with the city in writing as follows: "You are hereby noti- 
fied that we have elected to rescind our contract with the 
City of Chicago, dated October 24, 1941, for the furnishing 
and installation of ventilation equipment for the State 
Street and Dearborn Street subways, known as Contract M-3, 
for the reason that the City of Chicago has unreasonably 
delayed us in the performance of our said contract for a 
period of more than two years, v/hereby we have sustained and 
are continuing to sustain great loss, damage and injury." 

Three days later, en June 4, 1945, Philip Harrington, 
commissioner of subways,, addressed the following reply to 
the letter of rescission: "This will acknowledge receipt 
of your letter of June 1, 1945, expressing your desire to 



-8- 

rescind your contract with the City cf Chicago dated October 
24, 1941, for the furnishing and installation of ventilation 
equipment for the State Street and Dearborn Street Subways, 
known as Contract M— 3« We are forwarding your letter to the 
Corporation Counsel of the City of Chicago for a legal opin- 
ion in this natter." Harrington, further replying, on June 
18, 1945> sent plaintiffs a copy of an opinion from the 
corporation counsel wherein he reviewed the salient provi- 
sions of the agreement, the correspondence between the 
parties and the events that followed, and reached the con- 
clusion that plaintiffs did not have the right to rescind 
the contract, and added that if they insisted on so doing, 
"they should be advised that the City will regard this stand 
as an anticipatory breach **# and hold the Contractor and 
their Surety on the performance bond responsible for any 
damage resulting therefrom." 

The total amount of all labor and materials furnished 
by plaintiffs, plus profit, was $178,265.13, of which sun 
there had been paid to them $143,122.65. They seek to re- 
cover upon a quantum meruit the sum of $35*142.48, with 
interest at the legal rate from the time the monies alleged- 
ly became due and payable. 

Plaintiffs now construe the letter of November 30, 
1942 (plaintiffs' exhibit 7) as a directive to discontinue 
the performance of the contract as to the Dearborn street 
subway until some indefinite time in the future. They say 
that such delay was not contemplated by the parties and that 
no specific provision was made for delay of such an extent; 
that by directing plaintiffs to stop work in the Dearborn 






~9~ 

street subway defendant breached the contract, and when the 
delay continued for a period of more than two years, plain- 
tiffs had the right to rescind and to sue for and recover as 
upon a quantum meruit the fair, reasonable and market value 
of all labor and materials furnished, less amounts received 
by them from defendant. However, this construction is at 
variance with that which they gave it at the time the letter 
was written and received by them. They were then principally 
concerned with losses incident to the delay, for which they 
wished to interpose a claim against the city. The city has 
never taken the position that such claims would not be allow- 
able if the contract had not been completed, but it took the 
position that no allowances should be made unless notice in 
writing for an extension of the contract was presented in 
accordance with its terms; and in lieu of the provision that 
a specified claim should be filed by plaintiffs each month, 
the city suggested in its letter of May 19, I943 that it did 
not consider it necessary to follow this procedure but that 
it was essential "that you file an initial claim requesting 
an extension of time in which to complete the work. Such 
action on your part is prerequisite to our clearing for pay- 
ment such items mentioned in your letter which may be classi- 
fied as delay damages under the terms of the contract." 
Plaintiffs evidently acceded to this suggestion and request, 
although reluctantly, because en October 1, I943 in their 
proposal "as a disposition of our controversy" they ask for 
a reasonable extension of time to complete their contract, 
for the release by the city of some $16,000.00 balance due 
them on the portion of the contract known as the State Street 



-10- 

Subway, for reimbursement of all storage and insurance costs 
on materials stored at the request of the city and for pay- 
ment on the basis of cost plus 15 per cent of all maintenance 
work on material or equipment furnished by plaintiffs. It 
is significant that after this proposal was made to the city, 
substantially all their suggestions were complied with by 
council order or authorization of the subway commissioner. 

Upon the facts related, the city takes the position 
that plaintiffs did not have the right to rescind the con- 
tract because the delay in the performance of the contract 
was due bo the inability of the parties to obtain necessary 
priorities of a classification sufficient to obtain critical 
materials; that defendant did not direct plaintiffs to stop 
all work; that the time for the construction of the work was 
extended by agreement of the parties; that plaintiffs' 
proposals for the extension of the contract upon their own 
conditions were accepted; that after the time for perform- 
ance was extended, plaintiffs failed to make any offer of 
performance or demand that they be permitted to perform 
before giving notice of the rescission; and that as a matter 
of fact plaintiffs were working continuously on the subway 
from November 30, 1942 to June 9> 1944, indicating that they 
did not at any time consider the letter of November 30, 1942 
as a stop order which would justify a rescission for breach 
on the part of defendant. 

When the contract was entered into, the parties un- 
doubtedly anticipated some delay due to the shortage of 
critical materials then being used for national-defense 
needs. Accordingly they inserted in section 13a of the con- 



1 - 



-11- 

tract the following prevision: "The Office of Production 
Management, Division of Priorities of the United States of 
America, has assigned preference rating B-l to deliveries 
of material which will directly or indirectly, at any stage, 
enter into the construction by the City of the Initial Sys- 
tem of subways, P.W.A. Prrject 111. I89I-F. This preference 
rating is intended to be used only when the Contractor, with 
the exercise of due diligence, is unable to secure any 
material, when required by this contract, without the use 
of such preference rating. The Contractor agrees that if 
any material cannot be secured, when required, without the 
use of such preference rating, that he will use such prefer- 
ence rating and that he will be bound and carry out the re- 
quirements set forth in the preference rating order, a signed 
copy of which the City will furnish to the Contractor if the 
Engineer shall have been satisfied that the use of such pre- 
ference rating is necessary in order t° carry out the re- 
quirements of this contract? all without limiting the provi- 
sions of Section 13 of the General Specifications." Under 
this provision it was plaintiffs' first duty to attempt to 
obtain the necessary material on the open market before using 
a request for a priority. Plaintiffs admit that applications 
were made by them on suitable forms for priorities from time 
to time, and plaintiff William Mathis testified that "every 
request that I made out for priority was in connection with 
an authority. I could not have gotten the material without 
a priority." After December 1941 critical materials became 
more scarce, and it appears that plaintiffs cruld not get 
all the fans required under the contract. They obtained 



-12- 

motors from Westinghouse Electric Company for the State 
street subway, but could not get then for the Dearborn 
street installation. Twenty-two ventilating fans that were 
to be installed in the Dearborn street subway could not be 

CO 

obtained, nor 22 sets of electrical controllers . The lack 
of these items alone would have nade it impossible for then 
to perform their contract by reason of governmental restric- 
tions. The trial judge, in his oral opinion at the con- 
clusion of the hearing, found that "these delays which re- 
sulted in this case, arose out of the inability to get 
priorities," and that "there is no evidence in the case that 
the City was derelict in any way in its duties in applying 
for priorities when requested by the contractor -»-*-"-, There- 
fore, the Court finds as a fact that the delays have been 
due to inability to get priorities, that there is no evi- 
dence that the City failed in its duty in attempting to get 
priorities and the Court holds, as a matter of law that the 
provisions of Article 15 of Plaintiffs' Exhibit 2 applied 
and that the contract was merely suspended during the period 
when materials were not available and the plaintiffs had no 
right to rescind." 

It is plaintiffs' contention that articles 14 and 
15 of the contract which provide for extensions of time, 
when read in connection with ether sections, indicate that 
the delay or suspension of the program cf the work within 
the limitation of the 365-day period, could be only upon 
written order of the commissioner stipulating the period of 
time of such delay, and they say that defendant never had 
any right to delay or suspend the work for any uncertain or 



-13- 

indcfinite period of tine. In view of the court's findings, 
which we think are sustained by the evidence, this conten- 
tion is untenable. In their complaint plaintiffs alleged 
that the "delay was caused by defendant failing to supply 
plaintiffs with high enough priorities," The burden of 
proof rested upon then to sustain this allegation, and the 
court found, and we think properly so, that they failed to 
prove any fault on the part of the city in this regard. 

Aside from the foregoing considerations relating to 
delay caused by the shortage of critical material and to 
the construction of ttK defendant's letter of November 30, 
1942 as a stop order, more than 18 months after it was 
written, and then for the first time used as ground for 
rescission of the contract, we think that the offer of the 
proposals by the contractors for disposition of the con- 
troversy and the acceptance of the offer by the city evi- 
denced by its compliance v/ith the various demands made, con- 
stituted an agreement between the parties which bound both 
of them to keep the contract alive until alleviation of the 
conditions caused by the war would permit the contractors to 
resume operations. The court will take judicial notice of 
the fact that all civilian activities during this period were 
forced to abide the war effort, and in consequence delays 
were experienced in the performance of public and private 
contracts generally. It is not denied that on completion of 
the work the contractors would have had the right to present 
a claim for extra compensation, as specified under various 
sections of the contract, but instead of abiding their time 
plaintiffs insisted upon terminating their agreement without 



-14- 

the consent of the city, notwithstanding the testinony of 
William Ma this that "we were working continuously from 
November 30, 1942, to June 1944." In the light of the 
communications that passed between the parties and the con- 
duct of plaintiffs, they were not justified in rescinding 
the agreement without first making an offer or demand to 
be permitted to further perform the contract. It has been 
held that delays in performance of a contract may be waived 
by conduct indicating an intention to regard the contract 
as still alive. Sch nahl v. Auror a National-Bank^. 311 111. 
App. 228 j Watson v. White. 152 111, 3o4. That there was 
such an Intention on the part of plaintiffs is clearly evi- 
denced by the circumstances hereinbefore set forth. It has 
also been held that after delays in performance have been 
waived a contract cannot be rescinded for failure strictly 
to perform without giving notice and a reasonable opportunity 
to perform. Plunnor v. Worthi ngton, 321 111. 450. No such 
notice was given by plaintiffs, nor did they in any way in- 
dicate that they desired a reasonable opportunity to perform 
prior to the rescission of the contract. We think this Is 
an additional reason why they cannot recover. 

In view of these conclusions, other questions raised 
need not be discussed. We are of opinion that the trial 
court properly resolved the issues in favor of defendant. 
Accordingly the judgment should be affirmed, and it is so 

ordered. 

Judgment affirmed,, 

Sullivan, P. J., and Scanlan, J., concur. 



44565 



HARRY J. GRAFF, 



Appellant , 



ARLINGTON SEATING COMPANY, a 
corporation, et al., 

Appellees. 




3 37I.A. 285 






APPEAL FROM 
SUPERIOR COURT, 
COOK COUNTY. 



V 



MR. PRESIDING JUSTICE FEIN3ERG DELIVERED THE OPINION OF 
THE COURT. 



< 



Plaintiff aopeals from an order sustaining a motion 
to dismiss the amended complaint. The complaint is in 
three counts. 

The first count charges, inte^ alia , that plaintiff 
was a person of good repute, employed by defendant company, 
and faithfully and fully performed his duties as an 
employee, and earned approximately $52.39 pe^ week; that he 
endeavored to organize the employees into a labor union, 
and collected 43 membership cards for the formation of said 
union; that defendant company by its officers and superin- 
tendent, Carl Ebitsch, opposed his efforts to organize, 
and conspired with defendant Rezner, and all of them 
participated in the unlawful scheme and conspiracy to 
maliciously injure the plaintiff and destroy his reputation; 
that in the presence of other persons and employees, during 
the hours of employment, they falsely accused plaintiff 
of an infamous crime by charging him with having stolen 
$30 out of the locker of defendant Rezner; that defendant 
company, by its officers and superintendent, aided and 
abetted Rezner ■ in said charges and did ratify said charge 
and refused to investigate the t^uth or falsity thereof, 



'.*< 



2. 

though repeatedly requested to do so by plaintiff, and 
summarily discharged plaintiff, pretending to believe 
the charge, which was wholly false, as defendants well 
knew, and was a part of their scheme and conspiracy to 
make an example of plaintiff for his part in helping . 
form such union. 

Count II adopted paragraphs 1 to 6 inclusive of 
Count I, and claimed the balance of a week's pay - namely, 
$32. 53 - for the remainder of the week in which he was 
discharged, and a week's pay for failure to give him a 
week's notice, a total of $84.92. 

Count III similarly adopted paragraphs 1 to 6 
inclusive of Count I, and alleged that on February 25, 1948, 
at about 4:15 P. II. , plaintiff finished picketing, entered 
his own automobile preparatory to driving home, when 
defendant Johnson drove up in the police car and arrested 
plaintiff, advising him it was for drunkenness and disorderly 
conduct, which was absolutely false and merely a part of 
the intimidation and coercion being practioed against 
plaintiff to" discourage him f^om further picketing; that 
no summons or warrant was served on plaintiff at the time 
of his arrest; that after he was locked in a cell for some 
hours, Johnson made out a ticket, which he passed through 
the bars to plaintiff, and refused to release him without 
plaintiff paying 328; that later defendant Neumann, a police 
magistrate, appeared and demanded $28, which plaintiff did 
not pay, but was released J.ater, after talking with a 
lawyer; that defendant company, by its officers and 
superintendent, not only caused said arrest but appeared 
before the police magistrate; that defendant Ebitsch was 



3* 

present in person and intimidated some of plaintiff's 
witnesses; that defendant Neumann interfered with one of 
the witnesses who had "been subpoenaed and threatened hin so 
that he was afraid to appear; wherefore defendants are all 
maliciously carrying on said prosecution and persecution on 
said fictitious charges Df drunkenness and disorderly 
conduct* 

Stripped of its unnecessary verbiage, we believe 
Count I substantially states a cause of action for slander. 
If proven, the words spoken are actionable pe v > se. 
Bradley v. Bakke , 306 111.- App. 569. In l.lonroe College of 
Optometry v« Goodman, et -.1 ., 532 111. App. 78, the complaint 
charged a conspiracy against the several defendants tc libel 
and damage the plaintiff in the conduct of its school. 
The t T, ial court dismissed the complaint for insufficiency, 
and this court, Second Division, speaking through Mr, 
Justice Scanlan, said at page 90: 

"The complaint, even if tested by the ancient 
technical rules of common law pleadings, would 
not, in our judgment, be vulnerable to a motion 
to Strike, but the question before us is to be 
determined in the light of the provisions of the 
Civil Practice Act. In People ex r? l . Tibaette 
State Bank v* Village of 7ilmette , 294 111. App. 
562, Mr. Justice O'Connor said (p. 368) : 

"'The purpose of the entire act [Civil Practice 
Act] was to simplify the procedure and the prime 
object of the act was to enable the parties to a 
cause to have the merits of their controversies 

passed upon by the courts the realities 

considered rather than that the matter be decided 
on mere technicalities which often justly bring 
the courts into disrepute.'" 

The conspiracy charge, if proven, would make those 
charged in the count liable for the slander. Llonroe College 
v. Goodman. The court e^red in dismissing said count. 

Count II, in our judgment, wholly fails to set up any 



i 



4. 

cause of action. There are no facts alleged in that count 
which would entitle plaintiff either to recover the balance 
of the week's pay or an additional week's pay for failure 
to give him a week's notice, £ince no contractual obligation 
is shown, either express or implied. There can be no 
recovery for it, and the conspiracy alleged in the first 
six paragraphs of the first count can have no relation 
whatever to the recovery sought under Count II. 

Count III is directed against defendants Johnson 
and Neumann, who are not included in the conspiracy charged 
in paragraphs 1 to 6 inclusive in Count I. The essence of 
Count III is to charge these two defendants with malicious 
prosecution. There are several reasons why this count does 
not state a cause of action. There is no allegation that 
the criminal prosecution had terminated at the time of the 
filing of the complaint, and that it had terminated 
favorably to plaintiff* Shedd v. Patterson , 302 111. 355; 
Shelton v. Barry , 328 111. App. 497. It is not necessary 
to discuss other objections made to this count. 

Plaintiff argues that the motion to dismiss was not 
verified, as required by Section 35 of the Practice Act 
(ch. 110, par. 159, 111-. Rev. Stat. 1947) pertaining to 
verification of pleadings. There is no merit to this 
contention, since Section 32 of the Practice Act designates 
the pleadings in a cause, and does not include motions to 
strike. On the other hand, Section 45 of the Practice Act 
provides that motions may be used in place of demurrers to 
point out objections to pleadings. There is no r e q U i re raent 
in Section 45 that such motions be verified. 



5. 

For the reasons indicated the order of the Superior 
Court is reversed as to Count I of the amended complaint, 
affirmed as to Counts II and III, and remanded with 
directions to overrule the motion to dismiss Count I. 



AFFIRMED IN PART, REVERSED IN PART 
AN! REMANDED 7ITH DIRECTIONS. 



Tuohy and Niemeyer, JJ., concur. 



44707 

) 

R. L. FELTINTON, ) 

Appellee, ) 




I 



APPEAL FR0I.1 
) CIRCUIT COURT, 
JOHN J. RUDNIK, FRANCES RUDNIK, ) COOK COUNTY. 
ROSE H* FARROW and YOLANDA RUDNIK, ) 

Appellants. ) 




J 3 37 I.A. 28& 



MR. PRESIDING JUSTICE FSINBERG- DELIVERED THE OPINION OF 
THE COURT, 



This appeal is by defendants from a decree directing 
a sale of real estate to satisfy a Judgment against 
John J. Rudnik and Frances Rudnik, entered in the 
Municipal Court of Chicago on June 13, 1941, in the sum 
of $5,616 and costs. On June 18, 1941, an execution was 
issued on said Judgment, a demand made upon the Judgment 
debtors on July 9, 1941, and the execution returned nulla 
l)o na September 17, 1941. 

Plaintiff became the assignee of record of the 
Judgment in question, and filed the creditor's bill to sub- 
ject the real estate to the payment of the Judgment, 
charging there had been a transfer by the Judgment debtors 
in fraud of his rights aa creditor. Answers by defen- 
dants were filed to the complaint, and the cause referred 
to a master to report his conclusions of fact and law. 
The master, after hearing the evidence, made his findings 
of fact and recommended that the Judgment be declared a 
lien upon the real estate, and that the same be sold to 
satisfy the Judgment. Exceptions to the master's report 
were overruled, and a decree was entered in accordance with 
the master's report. The decree directed the payment of the 



2. 

judgment within 20 days from its entry, in default of which 

the master was directed to make sale of said real estate* 

A direct appeal was taken to the Supreme Court (401 HI, 

362), upon the theory that a freehold was involved* The 

Supreme Court, holding that a freehold was not involved, 

transferred the cause to this court. 

The assignment dated August 26, 1946, of the interest 

of the judgment debtors in the real estate in question is to 

two of their daughters, Rose Farrow and Yolanda Rudnik. 

It appears without dispute in the evidence that Mary 

Ochadlowski, a sister of the judgment debtor Frances Rudnik, 

formerly owned the property in question at 1623 Leland 

Avenue, which went to foreclosure and title acquired by the 

National Life Insurance Company. It is the claim of the 

judgment debtors that at the suggestion of Mary Ochadlowski 

a family conference was called by her; that In this conference, 

it was agreed that the daughters and Mary Ochadlowski would 

to 
advance the money /repurchase the property from the insurance 

company, and allow the judgment debtors, in their declining 

years* to make their home in said property; that a contract 

with the insurance company was signed by John J. Rudnik and 

Frances Rudnik, on October 24, 1938, in which they agreed 

to purchase it as joint tenants and pay the sum of $23,000 

in monthly installments, with an initial payment of $1,000 

at the time of the signing of the contract, and that the 

daughters and sister advanced the money. The contract was 

to be delivered by the insurance company when an additional 

Si, 500 was paid. A check of Frances Rudnik for 31,000 was 

given as the initial payment upon the contract of purchase. 

It appears that in August, 1946, Frances Rudnik, the 



f>rK : 



\ • , 



3. 

Judgment debtor, through a feal estate broker, arranged 
for a loan of 114,000 with which to pay off the balance of 
the purchase price due the insurance company. The loan was 
approved, and the note, dated September 21, 1946, for 
314,000 secured by a trust deed upon the r-al estate:, was 
signed oy Rose Farrow, the daughter, and her husband, 
Yolanda Rudnik, and the judgment debtors, John Rudnik and 
Frances Rudnik. A warranty deed was secured from the , 
insurance company, dated September 21, 1946, to Rose 
Farrow and Yolanda Rudnik in joint tenancy. The t^ust deed 
to secure the note in question was signed by Rose Farrow 
and her husband, and .Yolanda Rudnik, a spinster. 

The master in his findings of fact pointed out in 
detail the contradictions in the testimony of the witnesses 
for defendants, and particularly with reference to Mary 
Ochadlowski, who claimed to have contributed, according to 
the agreement reached at the family conference, 31,000 in cash, 
and who testified that she kept it in a secret hiding place 
and turned it over to Yolanda Rudnik. She at first testi- 
fied she had no bank account and kept her money at home, 
but when confronted with the fact, she finally admitted 
she then had a bank account at the First National Bank of 
Chicago. She took no written evidence of the advance or 
loan made by her, and no time was set for repayment, nor 
r 'as there any discussion of it ever had. 

The further significant fact, pointed out by the 
master, was the initial payment made upon the contract to 
purchase, by check of Frances Rudnik on an account maintained 
by he". No explanation appears for the fact that both 
judgment debtors signed the note for 314,000, secured by 






4. 

the trust deed on the property. If, as the defendants 
claim, the judgment debtors entered into the contract of 
purchase of the real estate for the daughters, and that 
is v-hy the title to the property was taken by warranty 
deed from the insurance company in the names of Rose 
Farrow and Yolanda Rudnik and not the judgment debtors, 
then there seems to be no plausible reason given why the 
judgment debtors should have been required to sign the 
trust deed note and make themselves liable. The reasonable 
inference is that the judgment debtors had some interest 
in the real estate. 

It appears also that the property was registered in 
the office of the Federal Price Administrator, having charge 
of rent regulations, in which statement of registration 
the names of the tenants of the building in question were 
listed, and the name of the landlord given as John and 
Fro.nces Rudnik. The statement of registration so filed 
was signed by Frances Rudnik as landlord. It also appears 
that on August 10, 1945, a letter signed by Rose Farrow 
and Frances Rudnik was written to one of the tenants in 
said building, notifying him that Mrs. Frances Rudnik 
proposed to occupy his apartment; that she \ r as one of the 
owners of the building, having purchased the property p-^io^ 
to October 20, 1942, and requesting the tenant to vacate 
the apartment as of September 30, 1945, so that the owner 
might have possession. A copy of this notice was filed in 
the office of the Federal Price Administrator. While the 
registration, notice and the letter to the tenant, referred 
to, a^e not in themselves conclusive evidence of the alleged 
ownership of the real estate or an interest therein in the 
judgment debtors, yet when considered with all the other 



\J 



5. 

facts, the master was convinced, and the chancellor also, 
that the transfer by the judgment debtors of their interest 
in the real estate, evidenced "by the contract of purchase, 
was in fraud of the rights of plaintiff, and entitled him 
to a lien of the judgment upon the real estate and a sale 
to satisfy said lien. 

There is considerable discussion in the briefs of 
both' parties as to whether the judgment debtors were 
holding the property in trust for the other defendants, 
and whether such trust is an impli<?d,reswlting, or express 
one. 77c regard all of this discussion as wholly' out of 
.place. Such a discussion may be applicable in a controversy 
between the judgment debtors and the other defendants but 
not as to plaintiff. The only question between them and 
the plaintiff is whether the transfer was a bona fid e 
transfer for a valuable consideration, or whether the 
transfer was without a valid consideration and therefore in 
fraud of his rights. The doctrine is clearly stated in 
DgMartini v. DeMartini, 335 111. 123, and quoted with approval 
by the Supreme Court in the instant case on the direct 
appeal (401 111. 362) : 

"Secondly, it is well established that a transfer 
of property fraudulent and void as to creditors is 
nevertheless valid as between the parties thereto. 
(Il linois Trust Co . v. Jones , 351 111. 498; 
Rosonbaum v. Huebner, 277 111. 360.) A conveyance 
of this sort is void only as against creditors, 
and then only to the extent to which it may be 
necessary to deal with the conveyed estate for 
their satisfaction. To this extent and to this 
only, it is treated as if it had not been made. 
To every other purpose it is good. Satisfy the 
creditors, and the conveyance stands." 

77hen a transfer of the type here in question is made 
by a Judgment debtor, after Judgment and execution returned 



6. 

nulla bona, and the transaction is called into question, 
it becomes highly important that the judgment debtors and 
those interested in sustaining the transfer testify to 
circumstances attending the transaction that convince the 
reasonable mind of the bona fides of the transaction. 'Then 
their testimony, in the light of the documentary evidence 
is so cleanly unbelievable as to completely discredit them 
as witnesses, then the master and the chancellor were 
justified in reaching the conclusion, upon this record, 
that the transfer was a preconceived plan by the members of 
the family to defeat the rights of creditors. 

The maste~ heard and saw the witnesses and was in 
a better position to judge of their credibility. His findings 
are entitled to due weight. Pasedach v. Auw, 364 111. 491; 
Zargmbski v. Zarembski , 332 111. 622, 632.. While they are 
not binding upon the chancellor or this court, we a^e 
convinced that the findings of the master and the decree of 
the court are amply justified by the evidence. Accordingly, 
the decree of the Circuit Court is affirmed. 

AFFIR1.ISD. 

Tuohy and Niemeyer, -JJ. , concur. 



44720 



WILLIAM E. MOSBY, 



Appellee, 



v. 



MUTUAL LIFE INSURANCE COMPANY 
OF NE'T YORK, a corporation, 

Appellant. 




APPEAL FROM 
CIRCUIT COURT, 
COOK COUNTY. 



\ 3 37I.A. 286 



L. 



MR. PRESIDING JUSTICE FEINBERG- DELIVERED THE OPINION OF 
THE COURT. 



Defendant appeals from a judgment entered by default 
in an action upon two policies of life insurance to recover 
SJLeaMlity income, with interest, claimed to be due from May 
10, 1946, to the date of suit, September 17, 1947. 

Plaintiff's original complaint was, on motion of 
defendant, stricken for failure to allege a cause of action. 
An amended complaint filed, alleged that plaintiff had kept, 
performed and observed all conditions precedent on his part 
to be kept, performed and observed, embodied in the policies 
of insurance in question. The answer to the amended complaint 
denied this latter allegation, and alleged that plaintiff 
had attained the age of 60 years on February 5, 1947, and 
furnished no proofs for claims of disability under either 
policy until June 13, 1947. An amendment to the amended 
complaint was filed, in which it was alleged plaintiff, before 
attaining the age of 60 years, became wholly, permanently 
and totally disabled; that he was stricken by a cerebral 
hemorrhage on May 10, 1946, and was confined thereby to the 
Jackson Park Hospital for a period of three weeks; that he 
was returned to his home and confined to bed during the 
summer of 1946 and most of the winter; that he became 60 
years of age on February 5, 1947, and was totally incapacitated 



< 



2. 

from performing any work for compensation from May 10, 1946, 
onward; that he did not know until on or about the first day 
of June, 1947, that his condition would permanently and 
totally disable him and prevent him from performing any 
work for compensation, gain or profit; and that on or about 
the first day of June, 1947, it became manifest to both 
plaintiff and his medical advisor that his condition was such 
that he was permanently and totally disabled. 

Plaintiff attached copies of the policies as exhibits 
to his amenfied complaint. Defendant moved to strike the 
complaint as thus amended, which motion was denied. Defendant 
electing to stand by its motion, judgment followed by default. 

The relevant provisions of the policies are: 

"If the Insured, after payment of premiums for at 
least one full year, shall, before attaining the 
age of sixty yars and provided all past due 
premiums have been duly paid and this Policy is 
in full force and effect, furnish due proof to the 
Company at its Home Office either (a) that he 
has become totally and permanently disabled by 
bodily injury or disease, so that he is, and will 
be, permanently, continuously and wholly prevented 
thereby from performing any work for compensation, 
gain or profit, and from following any gainful 
occupation, * * *." (Italics ours.) 

The rider attached to the policies provides the 
following: 

"If, while no premium is in default, the proof 
furnished the Company under the section providing 
for 'Benefits in Event of Total and Permanent 
Disability before Age 60' is such as to entitle 
the Insured to the Disability Benefits provided for 
therein, and if due proof is also furnished the 
Company that such disability has been continuous 
since its beginning, the Company will; 

"(a) Begin the monthly income payments provided 
for in such section as of the end of the first 
completed month of such disability if earlier than 



3. 



the date of receipt of such proof instead of as 
of the date of receipt of such proof, and, 

"(b) Return any preniun due after the beginning 
of such disability which has been paid during 
the continuance thereof." 



Defendant contends that the provision in the 
policies for furnishing proofs of disability to the company 
before the insured reaches the age of 60 is a condition 
precedent to his right to recover. Plaintiff counters with 
the theory that the rider, properly construed, indicates 
clearly the provision with respect to furnishing proof 
of disability before the age of 60 is not a condition 
precedent. It is clear from the pleadings that the proofs 
of disability were not furnished until after the insured 
reached the age of 60 years. Similar provisions in the 
policies and the rider were before, this court in Iloscov v. 
Mutual Life Ins. Co ., 320 111. App. 281, affirmed 387 111. 
378. *7e there said at page 284: 

"And counsel says that if the policy did not have 
printed on the bach the rider or 'Supplementary 
Benefits' above quoted, the furnishing of proof 
of disability by the insured before he reached 
the age of 60 would be a condition precedent. 
This is a correct construction of the policy, 
Jabara v. Equitable Life Assur. Soc , 280 111. App. 
147. But counsel says that this provision of 
Section 3 requiring the giving of notice as a 
condition precedent was eliminated by the rider. 
w*e are unable to agree with this contention. ***** 

"'.7e think that the rider did not eliminate the 
provision of the policy requiring that proof 
of disability be made before the insured was 60. 
The language of the policy in this respect is 
lanambigous and therefore must be construed as any 
other contract." 

In the Hoscov case the mental incapacity of the 

insured was alleged as an excuse for failure to furnish 



4. 

proof of disability before the age limit, and we concluded 
that it aid not avoid the requirement of compliance with 
the condition precedent. In the instant case, plaintiff 
sought to avoid the effect of the condition precedent by- 
alleging that the illness in question started before he 
reached the age of 60 years, but he did not know of the 
permanent disability until after he had reached the age 
of 60 and, therefore, could not furnish proof of permanent 
disability until after the age limit. We regard the 
Moscov holding as against this contention. 

Upon the facts alleged, plaintiff cannot recover, . . 
and the court erred in entering Judgment against defendant. 
Accordingly, the judgment of the Circuit Court is reversed. 

REVERSED. 

Tuohy and Niemeyer, JJ., concur. 



44602 



DANIEL LEHMAN, 



v. 



Appellee, 



UNIQUE CLEANERS, 

Appellant, 



3 37I.A. 287 



APPEAL FR0I.I 
CIRCUIT COURT 
COOK COUNTY 







MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT, 












Defendant appeals from a judgment of S3, 500 entered 
against it in an action for injuries sustained as the 
result of an explosion in defendant's plant. 

Defendant is engaged in the cleaning aid dyeing 
business in connection with which it operates a steam boiler 
heated by an oil burner. About a month prior to the 
explosion the boiler was installed by defendant, and the 
Enterprise Heat and Power Company (herafter called Enterprise) 
installed the oil burner. This equipment operated success- 
fully. Just before the explosion the defendant installed 
a "low fire start motor," which was attached to the oil 
burner for the purpose of reducing or slowing the flow of 
oil when the larger motor operating the oil burner was first 
turned on. Plaintiff, an electrician who had done the 
electrical work in connection with the installation of equip- 
ment furnished by Enterprise for a number of years and had 
done the electrical work in connection with the oil burner 
installed in defendant's plant and had also done other 
electrical work for defendant, made the electrical connections 
necessary for the jperation of the low fire start motor. 
After making these connections, which required only a few 



2. 

minutes work, the large switch operating the oil burner 
was turned on and the low fire start motor functioned 
properly. Plaintiff, noticing the absence of the noise 
which usually accompanied the operation of the oil burner, 
looked into the boiler through a peephole and saw a sort 
of a gray cloudy stuff, and before he could move away the 
explosion came, injuring him and the engineer employed by 
defendant. There is no claim that the damages awarded 
are excessive. 

The complaint charged that the defendant (a) negli- 
gently maintained the oil burner; (b) negligently failed to 
clean certain igniters on the oil burner, and (c) "negli- 
gently permitted plaintiff to be and remain in a position 
of dange^ without notice to him with knowledge on the pa~t 
of defendant that said oil burner might explode if not pro- 
perly maintained." At the close of plaintiff's evidence 
charge (b) was withdrawn. The jury answered "Yes" to the 
special interrogatory "Did the defendant negligently main- 
tain said oil burner?" and "No" to the interrogatory 
embodying charge (c). Defendant contends that there is 
no evidence supporting the claim of alleged negligent main- 
tenance of the oil burner. The representative of Enterprise 
who inspected the oil burner several days before the explo- 
sion was subpoenaed by both parties and testified on behalf 
of plaintiff. He stated that the boiler was not part of the 
oil burner unit; that this unit was in good shape and was 
being properly maintained ivhen he made his inspection several 
days before the explosion; that the oil burner was installed 
in front of the boiler; that he was called to the plant the 
morning following the explosion; that nothing was damaged 
on the oil burner; that the boiler flue doors at the front 



were blown open and the breeching was blown off; that there 
was a metal damper through the stack operated by a handle 
which functioned like a damper in a stovepipe; that he 
tested the oil burner by starting it and that it worked 
satisfactorily; he had "nothing to do with the breeching, 
the boiler or any of that work that was damaged by the 
explosion"; the breeching is the exhaust pipe of galvanized 
i-^on about 40 inches square coming off the top at the front 
of the boiler and extending to the big stack about 20 feet 
away, carrying the gases to the outside. In answer to a 
hypothetical question as to whether there might or could be 
any causal connection between the explosion "and the condi- 
tion ov maintenance of this oil burner and boiler and flue 
and other equipment that is all part of that heating appara- 
tus," he answered that there was no connection in the 
hooking up of this unit (low fire start motor) or of the 
oil burner and boile 1 " itself; that the stack must have been 
closed or something like that, that caused the gases to 
accumulate in the boiler to cause the terrific explosion; 
that "the looks of the boiler and condition of the equipment 
over there — showed that the boiler had gas up in the flue cap 
or in the discharge pa""t of the boiler, and that is whe^e the 
fire backed up from, because it could not go any place else. 
Now what obstruction was there, I could not tell that the 
day after"; that "There is only one thing that would cause a 
burne^ to back up or fire back under that type, is an 
explosion in the stack. That would mean definitely that a 
damper was closed." 

Defendant's engineer testified that the damper in 
the stack was open continuously from the time the boiler ■ <• 



4. 

was put In operation; that he had suspended a weight on a 
chain attached to the handle of the damper to keep the 
damper open. Defendant's maintenance man, who arrived at 
the plant about four hours after the explosion, testified 
that the damper wis open. On cross-examination the expert 
testified to six causes, other than the closed damper, that 
might or could possibly cause the explosion. These need not 
be enumerated. At the close of all the evidence defendant 
moved for a directed verdict, and after return of the verdict 
made a motion for judgment notwithstanding the verdict and 
for a new trial, and to set aside the special finding of the 
Jury as to the negligent maintenance of the oil bume". 

Defendant contends there is no evidence that the oil 
burner was negligently maintained, that the boile^, flue and 
damper were part of the oil burner, o"^ that the explosion 
was caused by any negligence of defendant in respect to the 
oil burner. Objection is also made to the admission of 
certain testimony, to conduct of plaintiff's counsel, and to 
the giving and refusing of instructions* It is not necessary 
that we consider these objections. The case is before us on 
the charge that defendant negligently maintained the oil 
burner. The second charge of negligence was withdrawn at 
the close of plaintiff's evidence, and the ju^y, in answer 
to a special interrogatory, found against plaintiff as to 
the third charge, and no motion to set aside this finding was 
made by plaintiff. Plaintiff insists that defendant is shown, 
by instruction No. 7 given on its behalf, to have tried the 
case on the theory of a charge of "negligence in the operation 
of its plant," and that defendant cannot no"; limit the 
negligence to the maintenance of the oil burner. This conten- 



5. 

tion cannot be sustained. Defendant tendered instruction No. 
7, ending with, "....if the plaintiff failed to show by a 
greater weight of the evidence that the defendant was guilty 
of negligence in the ope -at ion of its plant, just before and 
at the time of the alleged occurrence, then the jury must find 
the defendant not guilty." In giving the instructions to the 
jury the court -ead this instruction through the wo^ds 
"alleged occurrence," when he stopped and said, "I think that 
is one I called your attention to. You can read it over. 
I will withdraw that for the time being." Counsel for defen- 
dant then said, n "7ould you lay it aside and let us discuss 
it before you read it?" In the discussion out of the pre- 
sence of the jury, counsel requested "that the word be 
changed from 'plant' to 'oil burner' because the complaint 
does not allege any negligence in the operation of the plant, 
only the oil burner. I would not want it to appear we were 
going on the theory there was any negligence charged in the 
operation of the plant." The court refused to make the 
change and, over ^he objection of defendant, gave the 
instruction as written. In this the court e^sd. The record 
shows that the defendant was at all times attempting to limit 
the issue to the alleged negligence in the maintenance of 
the oil burner and not the entire plant. The use of the 
word "plant" was plainly an error, and the court evidently 
thought so or he would not have withdrawn the Instruction 
in the first instance. The giving of the instruction after 
the interruption served to emphasize the alleged negligence 
as to the entire plant. It is fundamental that the plain- 
tiff must prove the negligent acts charged and cannot recover 
by reason of negligent acts of the defendant not averred 
in the complaint as a ground of recovery, even though the 
acts proven s how the defendant was guilty of negligence 



6. 

which caused the injury. Miller v. Chicago & N. 1. Ry. Co ., 
347 111. 467, 493; Buckley v. Handel Bros., 333 111. 368, 
373. The uncontradicted evidence of plaintiff's witness - 
the representative of Enterprise - is that the boiler is 
not a part of the oil burner unit. It is further shown, 
without contradiction, that the breeching, flue and damper 
are part of the boiler and not of the oil burner. It is 
also shown by plaintiff's witness that the oil burner was 
working satisfactorily and was properly maintained. There 
is no evidence supporting the charge that defendant 
negligently maintained the oil burner. The motion for 
judgment notwithstanding the verdict and special finding 
should have been allowed. 

The judgment is reversed. 

REVERSED. 

Feinberg, P. J., and Tuohy, J., concur. 






44615 

) 

ROOSEVELT HcKAY, ) 

Appellant, ) 



3 37I.A. 288 1 



) 
v. ) APPEAL FROM CIRCUIT 

) COURT COOK COUNTY 
JACK ELLIS and ANNA ELLIS, ) 
also known as ANNA 17ALTON, ) 

Appellees* ) 
) 
) 

MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT. 

Plaintiff appeals from an order striking his fifth 
amended complaint and dismissing his action for the 
dissolution of an alleged partnership and an accounting 
as to the assets and income of the partnership. 

This action was commenced August 13, 1945 as a tres- 
pass action based on the alleged forcible ejection of plain- 
tiff from the premises of the partnership and prevention 
of his participation in the management and operation of the 
business. The second count charged malice. On Hay 29, 
1947 an order was entered finding the issues on the second 
count for the defendants and entering Judgment accordingly 
on that count. The record shows no disposition as to count 
one except the filing on June 5, 1947, by leave of court, 
of an amended complaint in equity seeking the dissolution 
of the partnership and an accounting as to its assets and 
income. This amended complaint and the second, third and 
fourth amended complaints were stricken on motion of defen- 
dants. The fifth amended complaint, filed March 22> 1948, 
charges the purchase by plaintiff from defendant Jack Ellis 
of certain goods, chattels, fixtures and goodwill of a 
tavern business known as the Turk Club, located at 3901 
1 



2. 

South Parkway, Chicago, 111., for $1,100; the sale of an 
undivided one-half interest in such business on September 
24, 1942 to one Beverly Miles, who sold the interest thus 
acquired on October 27, 1942 to the defendant Anna Walton; 
an oral agreement between Anna Walton and plaintiff within 
a week thereafter "by the terms of which the parties agreed 
to share equally in the profits and losses of the said Turf 
Club, and that the parties agreed to spend an equal amount 
of time in working and managing the business; that there- 
after the parties did operate such business under the 
terms of this agreement as co-partners and as a co— partner- 
ship; that such co-partnership still exists and has not 
been dissolved* (Paragraph 5) : That on or about November 
2, 1942, the plaintiff and the said Anna Walton, defendant 
herein, orally agreed to suspend temporarily the operation 
of the Tu^f Club, but not to terminate said partnership 
for several weeks, or until such time as an assignment 
of the lease could be procured in the name of the partners; 
that said business closed its doors and suspended business 
on said date; that on or about December 20, 1942 the 
defendant, Anna Walton, obtained an assignment of the 
lease to the Turf Club from Jack Ellis, which assignment 
was approved by the lessor named in such lease, and the 
said Anna Walton commenced the operation of such business 
under her own name, and the said Anna Walton is presently 
operating such Turf Club"; that without the permission 
or consent of plaintiff, the defendant, Anna Wa lton > changed 
the name of the business from Turf Club to Casa Blanca; that 
she did not advise plaintiff that she had obatined the lease to 
the premises in which the business of the partner-ship was being 



3. 

conducted, and also a renewal of such lease; that she has 
continued to operate the business and has earned large 
sums of money therefrom, and had failed to account to the 
plaintiff for any moneys so earned; that the plaintiff was 
and would have been at all times ready and able to go back 
into such business as a partner if he had knoxvn of the 
foregoing matters but that such matters and things came 
to his knowledge on June 2, 1947; that the defendant, Anna 
Talton, is and has boen antagonistic towards the plaintiff, 
and on account of such antagonism the parties cannot remain 
in business as partners. Plaintiff asks that the partner- 
ship be dissolved, that a receiver be appointed, and that 
afte 1 " payment of the indebtedness of the partnership the 
proceeds and residue be divided between plaintiff and Anna 
Wal'ion according to their respective rights. On March 30, 
1948 this fifth amended complaint was stricken for failure . 
to allege a cause of action, and plaintiff's suit dismissed. 
The fifth amended complaint alleges the joint owner- 
ship with defendant Anna Walton of the chattels and fixtures 
contained in the Turf Club, and an oral agreement whereby 
they were to share equally in the profits and losses of the 
business and to epend an equal amount of time in working and 
managing the business; the temporary suspension of the 
business until an assignment of the lease to the partnership 
could be obtained and the secret acquisition of this lease 
by the defendant Anna Walton, and the operation of the 
business at a profit by defendant. This sufficiently alleges 
a partnership (Leeds v. Townsend, 228 111. 451) and . 
brings the case within the rule announced in Thanos v. Thanos j 
313 111. 499. The motion to strike should have been overrule:! 



4. 

and the defendants be required to answer so that the case 
might be determined on its merits. 

The judgment is reversed and the cause remanded for 
further ' proceedings in accordance with the views expressed 
herein. 

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. 

Feinbe^g, P. J., and Tuohy, J., concur. 



44647 



TRUST COMPANY OF CHICAGO, 

Administrator of the estate ) 

of JOHN EDWARD LAHSY, Deceased, ) 

Appellant, ) 



i 



v. ) APPEAL FROM CIRCUIT 

COURT COOK COUNTY 







STORIT '.7AREHOUSE, INC*, a corpora- 
tion, and FRED REED, ) 

Appellees. ) 

) 

) 

MR. JUSTICE NIEMEYSR DELIVERED THE OPINION OF THE COURT. 

Plaintiff, administrator, appeals from a judgment 
entered on a verdict directed for the defendants at the 
close of plaintiff's evidence in its action for the 
wrongful death of decedent, a child aged 5-1/2 years. 

The accident resulting in decedent's death 
occurred in the north and south alley east of Halsted 
street, between 61st place and 62nd street, in Chicago. 
Ten or fifteen minutes before the accident decedent was 
in the alley walking back and forth and talking to Frances 
Weight, age 10, Loretta Porter, age 7, and Patricia 
Lahey, his. sister, .age 7, who were playing on Loretta' s 
back porch. Shortly thereafter, each of the girls 
testified, they heard a bump, like a car running over a 
^rate, ov a noise in the alloy and saw a red truck moving 
in tne alley, and then saw decedent lying there. Defendant 
Reed, the driver of the truck, who was also the owner, 
hauling for defendant corporation, testified to having 
made a delivery from the alley north of 61st place; that 
he then drove south to 61st place, west to Halsted street, 
south to 62nd street and then east on 62nd street to the 
alley, when he turned north into the alley, clearing the 



2. 

sidewalk; that ho did not make a delivery there but backed 
out to a warehouse across the street on the south side 
of 62nd street; that in backing out he looked through the 
fear view mirrors on the sides of the cab of the truck, 
that he saw no child and felt no bump. This is all the 
testimony relating to the accident. There is nothing to 
indicate how decedent came to his death. Neither is there 
any fact shown from which an inference of negligence on 
the part of the drive** is warranted. The cou^t did not 
e 1 "^ in directing a verdict. Casey v. Chicago Rys. Co ., 
269 111, 386, and Coulson, Admx . v. Discerns , 529 111. 
App. 23. 

Plaintiff moved to withdraw a juror and continue 
the cause because of the absence of a witness who would 
testify that he was looking out of the back door of his 
store at 6147 south Halsted street when he saw a red truck 
coming south in the alley at about 25 miles per hour; that 
the truck had on its side a legend "Store it with Storit"; 
that shortly thereafter a police car came up; that the wit- 
ness went outside and learned about the accident to decedent. 
This testimony, if produced on a trial, would contribute 
nothing towards showing how the decedent met his death or 
showing any negligence on the part of the defendants. The 
court properly denied the motion. 
The Judgment is affirmed. 

AFFIRMED. 

Feinberg, P. J., and Tuohy, J., concur. 



44766 



In the matter of the Estate of 
ARTHUR HEUER, deceased. 

FRED f. HEUER, ELSIE DEEG, 
GEORGE J. HEUER, HARRY HEUER, 
ANNA LIATHISEN and HANS HEUER, 
Appellants, 



v. 



HARRIET S. HEUER, Administratrix 
of the Estate of ARTHUR HEUER, 
deceased. 

Appellee. 




O ij I X»rL© £ q y 






APPEAL FROM CIRCUIT 
COURT COOK COUNTY 



MR. JUSTICE NIELEYER DELIVERED THE OPINION OF THE COURT. 



On July 22, 1947 the administratrix of the estate of 
Arthur Heuer, deceased, was authorized by the Probate court 
of Cook county to convey to the Chicago Housing Authority 
certain real estate which deceased had contracted to sell, 
upon payment of the purchase price of $35,000, "less any sum 
which may be determined upon proration made as of the date 
hereof. rt On the following day the administratrix conveyed 
the premises and received $34,369.89. November 6, 1947, the 
brothers and sisters of deceased, hereafter called petitioners, 
filed their petition in the Probate cou^t asking that the 
administratrix file an additional bond to cove-*- the amount 
realized from the 6ale of this real estate; that the inventory 
be corrected to show real estate instead of personal property 
and that the proceeds from the sale be distributed in accord- 
ance with the rules of descent covering real estate. The 
administratrix, hereafter called respondent, answered and 
on April 5, 1948 an order was entered in the Probate court 
directing respondent to file -an additional bond of $11,000 



2. 

and denying all other relief asked by petitioners. On appeal 
to the. Circuit court the further relief sought was again 
denied. Petitioners appealed to the Supreme court and that 
court transferred the case to us (402 111. 238). 

Petitioners say "There is only one question involved 
here, namely: was there equitable conversion under this 
offer of sale." Deceased by written offer dated September 
30, 1946, offered to sell the premises involved herein to 
the Chicago Housing Authority for $35,000. On November 22, 
1946, within the time fixed in the offer for acceptance, the 
housing authority accepted the offer. The offer of sale con- 
tained the following provision: "Notwithstanding the prior 
exercise of this offer, the Authority in lieu of completing 
the purchase of said premises may, at any time prior to 
closing, proceed to acquire the same by condemnation. The 
seller agrees, as an independent stipulation, which shall 
survive the expiration or cancellation of this offer, to such 
condemnation upon the payment of Just compensation, which shall 
be the purchase price above stated, which price the seller 
hereby declares to be the fair market value of said premises, 
inclusive of eve^y interest." petitioners contend that the 
election given the housing authority to start a condemnation 
proceeding after acceptance of the offer renders the contract 
unilateral because, petitioners say, "Under condemnation 
they could not be forced to take the property and pay the 
money if they did not want to, hence no conversion." In 
this position petitijners misconceive the effect of the 
language used. The option given the housing authority, after 
accepting the offer of sale, is not to start a condemnation 
proceeding but to acquire the property by condemnation, 



3. 

paying therefor the stipulated purchase price. This pro- 
vision was evidently inserted to afford to the housing 
authority the means to acquire the property for the 
stipulated price In the event some question as to the 
title arose# After accepting deceased's offer of sale the 
housing authority was bound to acquire the property by deed 
or through condemnation proceedings and pay therefor 
$35,000. In the event title was acquired through condemna- 
tion proceedings the purchase price would be paid into court 
and distributed among various claimants, if there were any 
other than deceased, as the court might direct. The contract 
is bilateral and a conversion was effected when the housing 
authority accepted the offer. The administratrix therefore 
properly inventoried the contract between deceased and the 
housing, authority as personal property. . Rhodes v. Lie red it h , 
260 111. 138, Fuller v . Br adley , 160 111. 51, and Skinner v. 
Newberry , 51 111. 203. This conclusion is not affected by 
the provision in the offer that loss or damage to the 
property by fire or casualty shall be at the risk of the 
seller until title has been conveyed to the authority. The 
conversion having been effected, the proceeds are distribu- 
table as personal property. 

The judgment is affirmed. 



AFFIRMED. 



Feinberg, P. J., and Tuohy, J., concur. 



3 37I.A. 290 



^A-518 



In the Matter of the Estate 

of THEODORE THOMPSON, Deceased, 



LEON A THOMPSON, 



Appellant, 



v. 



WILLIE THOMPSON, Administrator of 
the Estate of THEODORE THOMPSON, 
Deceased, 

Appellee. 



K\ 




APPEAL FROM 
CIRCUIT COURT 

coo:: county 



MR. JUSTICE TU0HY DELIVERED THE OPINION OF THE COURT, 



Claimant filed her verified claim against defen- 
dant in the Probate Court of Cook County seeking compensa- 
tion for services allegedly performed for defendant's 
intestate during his lifetime. The claim was disallowed 
in the Probate Court end on appeal to the Circuit Court, 
after hearing there, was disallowed. This appeal is taken 
from the Circuit Court order of disallowance. 

Claimant maintains that in the absence of an express 
contract to pay for the services of another the recipient 
of such services is bound to pay for the same upon an 
implied contract and that she is entitled to the fair, 
reasonable, and customary value of said services. 

Defendant admits the proposition? of law relied upon 
but maintains that the facts in the instant case establish 
that claimant and defendant's intestate had lived 
together for many years as husband and wife, though not 
married, and where such a relationship exists neither 
party may recover from the other for services rendered 



2. 

in the'absence of an express agreement, but such services 

pre presumed to be gratuitous. 

The briefs of the parties in the case indicate no 
substantial disagreement as to the law. In her reply 
brief claimant says, "If illicit cohabitation were the 
. basis of claimant's case, it is conceded that her claim 
would fall." The law is well established in this State 
that in the absence of an express agreement where two 
parties not legally married live together as husbpnd and 
wife neither party may recover from the other for services 
rendered. McClelland v. G-orrell , 334 111. App. 132, and 
Uselatz v. Estate of Pleshe , 302 111. App. 392. Claimant 
insists, however, that "since 'illicit cohabitation' was 
not mentioned in the trial court that point cannot be made 
for the first time in a court of review." We find no 
merit in this contention of claimant. While there were 
no pleadings filed in this case in view of the fact that it 
came to the Circuit Court on an apoeal from the Probate 
Court with merely a verified statement of claim to support 
it, the case was obviously tried upon the theory that 
defendant's int p state md claimant lived together as man 
and wife. In the opening strtem°nts of counsel the point 
was very clearly made. It was so argued at the conclusion 
of the hearing, and while the phrase "illicit cohabitation" 
does not appear in the evidence, it clearly and obviously 
was defendant's position throughout the trial that he was 
not liable by virtue of r relationship which, under the 
law, excluded any implied promise to pay for services. The 
evidence discloses that claimant was commonly known as, 
and was introduced by defendant's int^stet^ pa his wife, 






3. 

that they lived together In a three room apartment for a 
great many years, and that claimant performed for defen- 
dant' s intestate those services ordinarily performed by a 
housewife. As further evidence of the holding out of the 
claimant by deceased as his wife are the exhibits in 
evidence, produced by the claimant, consisting of mortgages 
and deeds in which deceased is named as grantor and the 
claimant described as his wife. There were also bills for 
Insurance premiums made out to Mrs-. Theodore Thompson. 
While no direct proof bearing upon Intimate conjugal 
relationships was offered, we do not believe that unde"^ 
the facts in this case it was necessary. The court heard 

the witnesses fully, and the inferences from undisputed 
facts wore for the court to determine. We find his conclu- 
sion justified by the evidence. Therefore, the orde^ of 
the Circuit Cou^t disallowing the claim is affirmed. 

AFFIRMED.. 

Feinberg, P. J., and Niemeyor, J., concur. 



44506 



LEONARD E. STEELE, 



Appellant, 



CLARE A. SULLIVAN, Executrix of 
the Estate of THOMAS S. SULLIVAN, 
Deceased, and JAMES 77. BURKE, 
Trustee under Trust No. 101, 

Appellees. 



3 3V1.A. £90 






APPEAL FROM 
SUPERIOR COURT 
COOK COUNTY 



MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT 



plaintiff appeals from a decree of the Superior 
Court of Cook County dismissing his bill for want of 
equity. The bill alleges that in May, 194o, Thomas E. 
Sullivan and plaifttiff entered into an oral agreement to 
purchase certain real estate held by defendant James W. 
Burke as Trustee; that the real estate was to be acquired 
with funds provided by Sullivan in the name of his nominee 
and that Sullivan would cause title to be conveyed to a 
trust company which would issue certificates of beneficial 
interests showing plaintiff and Sullivan to be owners of 
undivided one-half interests therein; that the property 
thus acquired would be subdivided and the property sold, 
and that plaintiff would perform certain services in the 
clearing of the title and setting up and selling of the 
subdivision. He alleged performance on his part, and 
prayed that Burke be restrained from assigning or canceling 
the contract of sale between Burke and Sullivan and that 
the latter be directed to record the deed of conveyance 
given by Burke and be directed to execute a deed to a trust 
company conveying title to the property. 



I 



2. 

The answer domied any partnership or any oral 
agreement as set forth in the complaint, but asserted that 
if any oral agreement existed as set forth in the complaint, 
it would be within the statute of frauds. 

Prior to the trial of the issues Sullivan died, and 
his widow, Clare A. Sullivan, as Executrix, was substituted 
as pa^ty defendant. 

In his presentation of the case here, plaintiff 
makes no argument on the questions as to the existence of 
the partnership and the oral agreement for the acquisition 
of the real estate and division of the profits from the 
sale of the subdivision. His only reference to these 
important issues is the statement, unsupported by the 
record, to the effect that the oral agreement embodying 
these matters was admitted by I.lr. Sullivan, He assigns 
as e^or only" the proposition that the oral agreement was 
not within the statute of frauds or "that even if it were 
within the statute of frauds the defendant Thomas E. 
Sullivan, or his estate, is liable to respond in damages 
for the reasonable value of services which were actually 
rendered for his benefit because of the contract." 

Defendant contends that plaintiff failed to sustain 
his burden of establishing a partnership and o^al agreement 
and argues that even if the oral agreement were proved it 
would be within the statute of frauds. She assigns as 
cross errors (l) the trial count's admission into evidence 
of a transcript of the plaintiff's testimony after the 
death of Thomas E. Sullivan, which was taken at a hearing 
before a master in chancery, and (2) the trial count's 



3. 

admission into evidence of the transcript of testimony 
of various other witnesses taken at the hearing before 
the master, in the absence of proof of the plaintiff's 
inability to produce those witnesses at the trial or to 
secure their testimony by deposition. 

The cause was filed on July 1, 1946. On November 
14, 1946 it was referred to a master in chancery, ©n 
July 21, 1947 the plaintiff called and examined the defen- 
dant Thomas E. Sullivan under Section 60 of the Civil 
Practice Act, and on July 23, 1947 plaintiff testified 
before the master in his own behalf. The cause was continued 
by the master and on August 13, 1947 Sullivan died, and 
thereafter, before submission of the cause to the chancellor, 
the term of the master in chancery expired. The cause 
came. on for hearing before the chancellor on May 18, 
1948. The transcript taken before the master was offered 
in evidence. Objection was made on the ground that com- 
plainant was incompetent to testify cither in person or 
by deposition under Section 2 of the Evidence and 
Depositions Act (111. Rev. Stat. 1947, ch. 51, par, 2) 
which provides that no party in interest shall be permitted 
to testify "when any adverse party sues or defends * * * 
as the executor * * * of any deceased person" etc. 
Objection was also made to the admission of a transcript of 
testimony of various witnesses other than plaintiff in 
the absence of proof of the plaintiff's inability to pro- 
duce the witnesses at the t^ial or his inability to secure 
their testimony by deposition. 

The question of whether or not an oral agreement as < 
alleged in the complaint and denied by the answer existed 



4. 

between plaintiff and Thomas E. Sullivan involved disputed 
questions of fact. Even if there wore competent evidence 
to support plaintiff's theory, we would not be inclined 
to interfere with the finding of the trial cou^t who 
apparently considered all the testimony introduced before 
the master and before himself. However, we are of the 
opinion that the admission in evidence by the chancellor, 
over objection, of the plaintiff's testimony taken before 
the master in chancery was error, being in contravention 
of Section 2 of the Evidence and Depositions Act. The 
fact that Sullivan was living at the time the testimony 
was adduced before the master does not render it competent 
to be received in evidence at a subseoiient trial held after 
his death. Smit h v. Billings . 177 111. 446. 

In the absence of plaintiff's testimony there is no 
evidence of any monent to support the allegations of the 
complaint. In our view of the case it is unnecessary to 
consider any of the other alleged er^o^s or cress errors 
assigned. The order of the Superior Court of Cook County 
dismissing the bill fo 10 want of equity is affirmed. 

AFFIRMED. 

Feinbergj P. J., and Niemeyer, J., concur. 



44618 



JULIA VAN ULM and JOSEPH 
VAN ULM, 

Appellees, 



LEG BERRINC-TON, SAM SCHRIER, and 
ANNETTE ORLOFF, doing business 
as CLARITE LIQUOR STORE, 
Appellants. 



3 37 I. 

APPEAL FROM 
CIRCUIT COURT 
COOK COUNTY 




.291 



MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 



i 



Plaintiff Julia Van Ulm filed her suit for personal 
injuries sustained in a fall on the premises operated as 
a liquor store in Chicago, Illinois by defendants. 
Plaintiff Joseph Van Ulm, husband of Julia, joined his 
cause of action for loss of services based upon the same 
facts. From a judgment in favor of Julia Van Ulm for 
$6,500 and in favor of Joseph Van Ulm for the sum of $50, 
defendants appeal. 

The complaint alleges substantially that on May 4, 
1945 Julia Van Ulm, while an invitee in defendants' liquor 
store, fell through a trap door negligently left open and 
unguarded by the defendants. The answer denies that the 
trap door through which plaintiff Julia Van Ulm fell 
occupied any part of the floor to which patrons were 
invited, but alleges that the same was behind a counter 
at a place where patrons were neither invited nor permitted; 
denies that Julia Van Ulm was in the exercise of due care 
for her own safety; ar.ft asserts that she was either a 
trespasser or a licensee to whom no duty of ordinary ca^e 
was owed. 

Defendants urge that there should have been a 
directed verdict as to all, and also complain of the 



2. 

admission of certain x-rays and medical testimony. 

Defendants' place of business at 2506 North Clark 
Street, in the City of Chicago, faced east, and was known 
as Clarite Liquor Store. The front part of the premises 
was used for retail sale of packaged liquor and the rear 
portion as a tavern. The front portion of the premises 
vras separated from the barroom by a large refrigerator 
which extended the width of the store except for a six 
foot passageway along the north wall. The store is fifteen 
feet wide, and the icebox nine feet wide. Along the 
entire south side of the front or package goods part of the 
store was a counter, extending from the east wall to a point 
four feet east of the refrigerator, where a short "stub" 
counter projected north at right angles from the end of the 
counter running in front of the refrigerator to the passage- 
way connecting the package goods part of the store with the 
barroom in the rea - *". Behind the counters, or that portion 
of the store where the package goods were dispensed, was 
a trap door leading to the basement. This t^ap door was 
located along the south wall and was about six feet 
long and three or four feet wide. To reach the door 
it was necessary to walk behind the "stub" counter for 
its entire length. The space behind the counter and in 
front of the refrigerator was about three and one-half 
feet wide. The area behind the "stub" counter was well 
lighted, from fluorescent lights in the ceiling and lights 
in the interior of the refrigerator shining through the glass 
doors onto the floor. There was no way to get behind the 
main counter along the south wall of the store except by 
walking south behind the "stub" counter and in front of the 






3. 

icebox to the area occupied by the trap door. Cn the 
counter were a cash register and cradle telephone. There 
was also on the premises a telephone booth for the use of 
patrons of the store, which was in the main body of the 
store and accessible without going behind the counters. 

The testimony, which is substantially undisputed, 
was to the effect that Julia Van Ulm went into the premises 
about 6:30 P. M., met her husband, and had a drink with 
him at the bar. Sometime later she went out and purchased 
food and brought it back to the bar where they both 
ate. About 8:30 Julia left the tavern for about fifteen 
minutes, returned again, sat at the bar, and had 
another highball with her husband. Her husband 
refused to go home and she left around 9:30, and later, 
for the fourth time that evening, returned to the tavern. 
When she came back on this occasion she saw her husband 
still at the bar, talking to a friend, and went over to 
him, sat down on the stool, and had another drink. After 
sitting there for a half hour or so she missed her husband 
and found that he was not at the bar. Thereupon she got 
up and left the bar and went through the passageway toward 
the package goods portion of the premises. About 11:00 
o'clock that evening an employee of the defendants had 
opened the trap door and had gone down to the bpsement 
to bring up beer for the following day's business, lepving 
the trap door open. The cellar was brightly lighted, and 
the light from the cellpr shone up through the open trap 
door. Plaintiff testified that after leaving the barroom 
and going into the package room part she asked the pro- 
prietor if he had seen Mr. Van Ulm. In the meantime, 



4. 

she had turned into the aisle behind the counter "and as I 
was walking through this passage-jay, in front of the icebox, 
still asking him, I fell." On cross-examination she testi- 
fied that while walking toward this t»ap door she did not 
at any time look at the floor ahead of her to see where she 
was going. 

It clearly appears that the accident happened upon 
a portion of the premises which was used by the employees 
of the store as an aisle and which was located behind this 
"L" shaped counter. It also appears that it was a portion 
of the premises to which the public and the patrons of the 
store were not generally invited, although they were on 
occasion permitted. 

Plaintiff takes the position that by a course of past 
conduct defendants had impliedly invited the plaintiff, as 
well as other patrons of the store, to use the portion of 
the premises where the accident happened. They cite the 
testimony that Mr. and Mrs. Van Ulm had on occasion been 
permitted to use the phone behind the "stub" counter, that 
it was customary for patrons to go in and get beer out of 
the icebox, and that the Van Ulms had frequently used the 
icebox for the purpose of placing packages the^e. 

We fail to see how this course of conduct makes 
plaintiff anything more than a mere licensee. The evidence 
is undisputed that the telephone which was maintained for 
the use of patrons of the place was a booth phone and located 
in a portion of the store where there could be no possible 
danger from an open trap door. The telephone on the counter 
was for the use of the operators of the business, and while 
incoming calls were sometimes relayed to patrons , it would 



5. 

appear that it was solely for their convenience and that 
this occasional use of facilities by patrons was merely 
permissive. From a review of all the testimony in this 
case, we aro of the opinion that plaintiff was a trespasser, 
or at most a licensee, on that portion of the premises where 
the accident happened and that defendants owed- her, as such, 
no duty other than not to willfully and wantonly injure her. 
No such question is here involved. 

Furthermore, we conclude, under all the facts and 
circumstances in this case, that the accident happened with 
the proximate and concurring negligence of the plaintiff 
Julia Van Ulm. This being our view of the case, it is 
unnecessary to consider the alleged errors in the admission 
and denial of evidence. 

Under the circumstances, we are of the opinion that 
the trial court e^red in refusing to direct a verdict for the 
defendants, and for such ^eason, the judgment of the Circuit 
Cou^t of Cook County is reversed. 

REVERSED. 

Feinberg, P. J., and Niemeycr, J., concur. 



44639 



MARJORIE TALDEN, also known as 
MARJORIE EMRIOH, 

Appellant, 



CHELSEA HOTEL COMPANY, a Cor- 
poration, 

Appellee. 




3 37I.A'. 292 1 



APPEAL FROM CIRCUIT 
COURT COOK COUNTY 




MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 



Marjorie Walden, also known as Marjorie Em^ich, 
plaintiff, sued defendant Chelsea Hotel Company, a cor- 
poration, to recover damages for personal injuries sustained 
on April 25, 1946 as a result of an assault and battery 
by F^ed McCool, defendants employee. The case was heard 
by a jury which assessed plaintiff's damages in the sum 
of $3,500, and from a judgment for defendant notwithstanding 
the verdict plaintiff appeals. 

Plaintiff contends that by virtue of the relationship 
of innkeeper and guest existing at the time of the assault 
the defendant owed plaintiff an absolute duty "to protect 
he" from harm by its servants, particularly by a servant 
having a key to her room which key was furnished by defen- 
dant to the servant." 

The defendant's theory is that the proof in the case 
was insufficient to shov; that the servant of the defendant 
hotel committed the assault upon the plaintiff while in 
the performance of his duties. 

Inasmuch as the defendant introduced no evidence, 
the following facts are unrebutted: On Ap^il 25th plaintiff 






2. 

was a guest at the Chelsea Hotel which was owned and 
operated by defendant. She had lived at the hotel for 
about ten months prior to the date of the occurence 
complained of, occupying one room with connecting bath, 
the hotel furnishing daily maid service, clean linens 
and bellboy service. The door of her room had a spring 
type Yale lock which automatically locked the door upon 
closing. On the above date she returned to the hotel from 
her duties as waitress about five-thirty in the morning. 
She locked the door, and retired to bed. About eleven- 
thirty she was awakened by three severe blows on the head 
inflicted by a man wielding a metal instrument. She was 
taken to a doctor's office, and he took x-rays and 
inserted four stitches in he^ head in each of the three 
places she was struck. 

In the answer filed in this case defendant admits that 
the assailant, F^ed McCool, was a servant of the defendant 
and that he entei^ed the room of the plaintiff, but denies 
that in so doing he was acting within the scope of his 
employment. Defendant admits that McCool had been employed 
by it approximately about five months prior to the occurrence 
as a "houseman" and that in connection with his duties he 
was furnished by this defendant with a passkey by which 
he might enter the rooms of the hotel. Defendant contends 
that there was no evidence establishing that the relation- 
ship between McCool and defendant was such that he might 
be presumed to be authorized to make the assault or that 
the assault was within the scope of his employment, and 
that there was no evidence establishing any negligence on 
the part of the iefendant in the employment of McCool. 



3. 

It is to be noted that plaintiff, in her theory of 
the case, claims that she was injured as a result "of a 
violation by the defendant of an absolute duty owed to the 
plaintiff, to protect her from harm by its servants." 
This is in effect a statement that an innkeeper is an 
insurer of the safety of its guest. No authorities are 
cited, nor do we find any, to support this view. The 
defendant was obligated in this case only to use ordinary 
care for the safety of the plaintiff. Pollard v. 
Broadway Central Hotel Corp ., 353 111. 312, 319. It does 
not appear that defendant violated its duty of ordinary 
care to the plaintiff in the unfortunate occurrence of 
which plaintiff was the innocent victim. It is argued 
that because the employee had beon entrusted with a passkey 
which opened plaintiff's door that that fact imposes 
responsibility upon defendant for the employee's felonious 
act. T7e do not understand this to be the law unless at 
the time the assault was committed the employee was engaged 
expressly or impliedly upon the master's business and 
aeting within the scope or apparent scope of his authority. 
The record is silent as to any facts which would tend 
to bring the employee within this rule. It is true that 
if the master were negligent in employing the servant 
and might have discovered by reasonable diligence that he 
was the type of person to whom it would negligence to 
entrust such responsibility, then the master would be 
liable regardless of the misr-ion upon which the employee 
was engaged at the time of the assault. However, there 
is no proof and no charge in the complaint that the^e was 
any negligence in the employment of I.icCool or in the 



4. 

entrusting to hin of a passkey. Again, it does not appear 
from the evidence or from any reasonable inferences that 
may be drawn therefrom, that the assault committed by 
the employee was within the scope of his employment. 

In the case of Buckley t« Edgewater Beach Hotel 
Company , 247 111. App. 239, this court said, at page 245: 

"In the case at bar, it is admitted that 
McAlvany was employed as an officer, for the 
purpose of protecting the interests of the 
hotel company, and it cannot be assumed that he 
was employed for the purpose of intentionally 
inflicting injury upon anyone, but that, in the 
course of his duty, he was expected to do those 
things which an officer occupying such a position 
as he did with the hotel company, would be 
ordinarily expected to do." 

Also material on this point are the cases of Shannessy v. 
Walgreen Company , 324 111. App» 590; Ewald v. P-^elet Scrap 
Iron & lietal Co ., 310 111. App. 218; Klugman v. Sanitary 
Laundry Co ., 141 111. App. 422. 

1e therefore hold that the defendant in this case 
owed the plaintiff only a duty of ordinary care to provent 
injury to her while a guest of defendant's hotel. The 
evidence discloses no violation of that duty. "Je fail to 
find any evidence supporting the allegations of the complaint, 
and, therefore, the action of the Circuit Court of Cook 
County in entering the judgment notwithstanding the 
verdict is affirmed. 

AFFIRMED. 

Feinberg, P. J., and Ni&'eyer, J., concur. 






f 



44673 



INLAND RUBBER CORPORATION, 
a corporation, 

Appellee, 



Vi 



ESKIMO KOOLER CORPORATION, a 
corporation, and NICHOLAS C. 
G- 10 VAN, 

Defendants 



On Appeal of NICHOLAS C. G-IOVAN, 

Appellant, 



APPEAL FROi.; CIRCUIT 
COURT COOK COUNTY 

3 




rm>> 



H 



MR. JUSTICE TUOHY DELIVEPED THE OPINION OF THE COURT, 



Defendant Nicholas C. G-iovan appeals from a summary 
judgment entered in favor of Inland Rubber Corporation, 
a corporation, the plaintiff, in the amount of $3, 881,22. 

The complaint alleges that Eversharp Lawn Mower 

Corporation purchased a tire mold and certain special 

rubber tires from plaintiff; that p^ior to the acceptance 

and fulfillment of the order, defendant, by letter, 

guaranteed the payment of the account; that thereafter, the 

merchandise having been manufactured and delivered, 3500 

was paid on the account, but that Eversharp failed and 

refused to pay the balance. The letter of guaranty is as 

follows: 

"Eskimo Kcaler Corporation 
916 East 43rd Street 
Chicago 15, Illinois 

November 27, 1946. 

Inland Rubber Corp., 
33 South Clark St., 
Chicago, 111. 

Attention Mr. T. T. Swanson. 

Gentlemen: 

Pursuant to your request regarding the order 
placed with your company by the Eversharp Lawn 



2. 

Mower Corp., on November 26, 1946, we do hereby 
wish to inform you that we guarantee payment of 
aaid account in the event of default. 

Very truly yours, 
[signed] Nicholas C. Giovan, 
President." 

The answer admits the purchase and sale and the 
writing of the alleged letter of guaranty but "denies that 
the agreed price of said mold and said tires would be paid 
when said mold was procured and said tires 1 ;/ere delivered 
by plaintiff to 'Eversharp', because there was no agreed 
price stipulated or fixed." 

In the affidavit for summary judgment the credit 
manager of the Inland Rubber Corporation swore substantially 
to the following facts: that he would not approve the crodit 
of Eversharp unless a guaranty of the order was received 
by the plaintiff from some responsible person ov corporation; 
that afte 1 " receipt of the guaranty from defendant, but before 
the shipment of any tires; plaintiff forwarded to Eversharp 
a letter stating in detail the prices to be charged to 
Eversharp for the tires and mold. A copy of this letter 
is attached to the affidavit and made a part thereof and 
shows the price to be $4,381.22. The affidavit further sets 
forth that no objections were ever made by Eversharp or its 
representatives to the amounts of its invoices, or any portion 
thereof. 

Defendant's theory is that because the letter of guar- 
anty did not specifically state the amount guaranteed that 
he is entitled to have a jury determine the fair and reason- 
able sale price of the merchandise. The counter affidavit 
does not dispute the fixing of the price at 34,381.22 prior 
to the delivery of the merchandise, nor does it dispute the 



; 



3. 

allegation that no objection to the price stated was ever 

made by Eversharp. Plaintiff's position is that the purchase 

price of the merchandise was definitely fixed in writing by 

its letter of December 17th to Eversharp, and that is the 

amount for which defendant is liable under the terms of the 

guaranty. 

We are of the opinion, inasmuch as the original 
parties to this purchase and sale agreement had a definite 
understanding as to the price that was to be paid, as no 
objection as to the price was ever raised by the purchaser 
or by the guarantor, as the letter of guaranty is clear and 
unambiguous on its face, and as the making of the contract 
and the delivery and receipt of the goods are admitted, 
that the trial court was justified in entering a summary 
judgment on the pleadings. 

The guaranty need not be limited as to either the 
amount guaranteed or to the time for which it is to remain 
in effect. Mame row v. The National Lead Company , 206 111. 
626; The Delaware, Lackawanna and Western Railroad Co . v. 
Burkard, et al . , 11^ N. Y. 197. 

Defendant further contends that because the letter 
of guaranty was written on the letterhead of the Eskimo 
Kooler Corporation there is ambiguity and uncertainty as to 
whether or not the guaranty was a corporate or individual 
undertaking. The corporation was made a party to the case 
as originally filed, and was dismissed on notion. We think 
it clear from a reading of the letter of guaranty that the 
undertaking was that of the defendant personally and not 
of the corporation. The fact that the word "President" 
appears following his signature is merely descriptive, and 



4. 

does not tend to make the instrument ambiguous. The rule 

is stated in 32 0.. J, S. §990, at page 962: 

"Where, however, the legal effect of an 
instrument is to bind the officers by whom it 
is signed alone, and the name of the corporation 
does not appear on the instrument in such a 
way as to render it doubtful from the paper itself 
whether the corporation or the officers were 
intended to be bound, parol evidence is not 
admissible to show that the officers acted only 
in their official capacity * * *.« 

The judgment of the Circuit Court of Cook County 
is affirmed. 

AFFIRMED. 

Feinberg, P. J., and Niemeyer, J., concur. 



3 37 LA. 



44683 

LAWRENCE S. SCHWARTZ and 
FREDA SCHWARTZ, 

Appellees, 
v. 

EUGENE LEVY and JEAN SJ2VY, 

Appellants. 




) 



APPEAL FROM 

CIRCUIT COURT, 
COOK COUNTY 




MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 

Plaintiffs sued to recover against defendants on 
a contract wherein defendants promised to pay the sum of 
&25 for each day after March 1, 1946 that they occupied a 
bungalow previously sold by defendants to plaintiffs. The 
case was submitted to the court without a jury on a stipu- 
lation of facts. From a judgment in favor of plaintiffs in 
the sum of $1,300 and costs, defendants appeal. 

On December 14, 1945 plaintiffs and defendants 
entered into a real estate contract for the purchase and 
sale of a five-room brick bungalow located in Chicago, Illi- 
nois. The seller was occupying the premises at the time the 
agreement was made, and there was a provision that posses- 
sion would be surrendered on or before 60 days after the 
date of sale. On the closing date, the defendants delivered 
to plaintiffs a letter stating that In the event the de- 
fendants did not remove their possessions and vacate the 
premises on or before March 1, 1946 "we will pay you #25.00 
per day for each day we remain in possession thereafter and 
your acceptance of any sums in accordance herewith shall not 
construe /_ sic_7a Waiver by you of your rights of entering 
the premises. " At the same time the letter was executed and 
delivered, there was an oral agreement between the parties 






-2- 

that the defendants would pay to the plaintiffs, as rental 
for the 50 day period, the sum of $57. 5C per month. There- 
after, en February 26, 1946, there was an agreed extension 
of the occupancy by defendants at the same rental until 
March 31, 1946, and again on March 22nd there was a further 
extension at the same rental, to May 1st. On the latter 
date, plaintiffs filed suit in forcible entry and detainer. 
On June 4th judgment for possession was entered, and defend- 
ants vacated the premises on June 21st. The amount of dam- 
ages provided for in the judgment order was computed on the 
basis of #25 per day from May 1 to June 21, 1946. 

Defendants contend that the provision in the agree- 
ment as to the amount of damages being greatly in excess of 
the actual damages suffered, it should be treated as a pen- 
alty and that no more than the actual damages proved should 
be recovered. 

Plaintiffs' theory is that the provision in this 
contract for a particular sum to be paid in the event of a 
breach is not in the nature of a penalty because the damages 
resulting would be difficult to estimate, and circumstances 
render their computation uncertain. 

It appears to us from the stipulation of facts 
herein that the $25 a day provision was made for the pur- 
pose of securing performance, and not with a view to esti- 
mating or determining actual damages. In the case of Advance 
Am use ment Company v. Franke. 268 111. 579, where the court 
considered a somewhat similar state of facts, the court 
said (pp. 581, 582) : 



r 



-3- 

"As was said by this court in Gobble v. Linder, 
76 111. 157, no branch of the law is involved in more 
obscurity by contradictory decisions than whether a sum 
named in an agreement to secure performance will be 
treated as liquidated damages or a penalty, and as each 
case must depend upon its own peculiar and attendant 
circumstances, general rules of law on this question 
are often of little practical utility. While the in- 
tention of the parties on this question must be taken 
into consideration, the language of the contract is 
not conclusive. The courts~of this State, as well as 
in other jurisdictions, lean towards a construction 
which excludes the idea of liquidated damages and pe. 
mlts the parties to recover only damages actually 
sustained. (Scofield v. Tompkins. 95 111. 190; Redloff 
v. Haa.se , 196 id. 365; Bllz v. Po well , 38 L.R. A.£ ~N. §77 
847, note.) This court has said that the rules de- 
ducible from the cases may be stated as follows: 
'First, where by the terms of a contract a greater sum 
of money is to be paid upon default in the payment of 
a lesser sum at a given time, the provision for the 
payment of the greater sum will be held a penalty; 
second, where by the terms of a contract the damages 
are not difficult of ascertainment according to the 
terms of the contract and the stipulated damages are 
unconscionable, the stipulated, damages will be regarded 
as a penalty; third, within these two rules parties 
may agree upon any sum as comoensation for a breach of 
contract. 1 (Poppers v. Meagher. 148 111. 192.) This 
and all other courts seem to agree upon the principle 
that a stipulated sum will not be allowed as liquidated 
damages unless it may be fairly allowed as compensation 
for the breach. ( I Sedgwick on Damages, — 9th ed. — sec. 
407, and cases cited.) We have frequently said that 
courts will look to see the nature and purpose of fix- 
ing the amount of damages to be paid, and if it appears 
to have been inserted to secure the prompt performance 
of the agreement it will be treated as a penalty and 
no more than actual damages proved can be recovered. " 

Applying the rule laid down in this case to the 
case at bar, we conclude, first, that the purpose of the 
parties in fixing the amount of damages to be paid appears 
to have been to secure the prompt performance of the agree- 
ment. That being so, under the rule laid down in Advance 
Amusem ent Comp any v. Fr ank e. supra, it must be treated as a 
penalty and no more than the actual damages proved can be 
recovered. 




-4- 

Furthermore, the parties themselves fixed the 
sum of #57.50 as the rental for the premises, and, pre- 
sumptively, that was fair and reasonable. (Johnson v. 
Canfle ld-Swlgart Co., 292 111. 101, 111; Clapp v. Noble . 
84 111. 62. ) The provision in the contract for 425 a day 
is at the rate of #750 e. month, which would appear to us 
to be en unconscionable amount in view of the actual amount 
the parties themselves had agreed upon. In Elgin . Joliet & 
Easter n Kal lwav Company v. Northwestern Nationa l Bank of 
C hica go, 165 111. Ado. 35, the court said at page 39: 

"Where the amount agreed to be paid for the 
breach of the contract greatly exceeds the actual 
damages suffered on account of the delay — that is 
to say, if the amount agreed to be paid is out of 
proportion to the probable damage sustained, the 
court will be disposed to treat the stipulated sum 
as a penalty and not liquidated damages. " 

Finally, inasmuch ss the parties themselves had 
for a number of months prior to the forcible entry and 
detainer suit occupied a lessor-lessee relationship on an 
agreed monthly rental, it does not appear that the damages 
are difficult of ascertainment or their computation un- 
certain. Accordingly, we do not consider as applicable 
to this case the many authorities cited by plaintiffs 
to the effect that a provision in a contract for a par- 
ticular sum to be paid in the event of a breach is not in 
the nature of a penalty where the damages which would 
result from a breach would be difficult to estimate and 
the circumstances render their computation uncertain. 
We are therefore of the opinion that the $25 a day pro- 
vision was a penalty clause, that onlv actual damages may 



-5- 

be recovered, and that the actual damages have been fixed 

by the parties themselves as being the sum of $57.50 a 

month. 

Accordingly, the judgment of the Circuit Court 
of Cook County is reversed and the cause remanded with 
directions to proceed in a manner not inconsistent with 
the views expressed in this opinion. 

REVERSED AND REMANDED WITH DIRECTIONS 

Feinberg, P.J., and Niemeyer, J«, concur. 



44697 

) 

FRANK J. SCULL, ) 

Ap-oellee, ) 

) 

v. ) APPEAL FROM SUPERIOR 

) COURT, COOK COUNTY. 
WESTFIELD HOLES, INC., ) 

an Illinois corporation, ) 
and WILLIAM W. GOLDMAN, ) 

Appellants. ) 

) 




3 37l.A.2g4 1 



MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 

Defendants appeal from an order of the Superior Court 
of Cook County denying leave to open up a judgment by con- 
fession taken on a note and leave to file a counter- 
claim. 

The motion and affidavit to open up the judgment set 
forth substantially the following facts: that the defend- 
ant corporation is owned by defendant William 7. Goldman 
and has been since its incorporation in August, 1941; that 
plaintiff was a vice president and employee of said corpo- 
ration, and from May 1, 1943 until the termination of his 
employment on May 4, 1945 he was paid a salary of 175.00 
a week; that in October, 1943 the defendants purchased 
certain real estate located in the State of Wisconsin for 
a total consideration of §60,000; that for convenience the 
purchase was made in the name of plaintiff; that plaintiff 
had no interest whatsoever in the real estate other then 
as the nominee of the defendants and that all the consider- 
ation was furnished by the defendants; that at the time 
of the purchase a verbal agreement was made between plain- 
tiff and defendants that plaintiff would convey title as 
the defendant William W. Goldman directed; that sometime 
after plaintiff left the employ of the defendant corpo^a- 






-2- 

tion the defendants requested that plaintiff convey his 
nominal interest in said real estate to the defendants, 
but that he refused and demanded a large sum of money for 
making such conveyance; that he threatened to involve 
defendants in long and costly litigation with unfavorable 
publicity, thereby injuring their business of selling real 
estate; that because of the demand and threats, and to 
secure an immediate title tc the real estate, the defend- 
ants entered into an agreement with the plaintiff whereby 
and whereunder they agreed to pay him the sum of $10,000.00, 
evidenced by the installment note which is the subject mat- 
ter of this suit; that thereafter the defendants paid in 
installments to plaintiff the total sum of $8,250.00 on 
account of said note, but refused to pay the balance. 

No question of want of diligence is raised. After 
the filing of the motion and affidavit to open up the 
judgment, a motion to strike was filed, together with a 
counter affidavit. An issue of fact being raised by the 
affidavit to open and the counter affidavit, the judge 
before whom the matter came on for hearing called certain 
witnesses to testify for the respective parties, and at 
the conclusion of this hearing denied the motion to open 
up the judgment. 

The authority for proceedings to open judgments by 

confession is contained in Rule 26 of the Supreme Court 

of Illinois, which provides in pertinent part as follows: 

n A motion to open a judgment by confession shall 
be supported by affidavit in the manner provided by rule 
15 for summary judgments, and if the motion and affidavit 



/ 



-3- 

disclose a prima facie defense on the merits to the whole 
or a part of the plaintiff's demand, the court shall set 
such motion down for hearing. The plaintiff may file 
counter affidavits. If, at the hearing upon such motion, 
it shall appear that the defendant has a defense on the 
merits to the whole or a part of the plaintiff's demand 
and that he has been diligent in presenting his motion 
to open such judgment, the court shall then sustain the 
motion either as to the whole of the judgment or as to 
such part thereof as to which a go^d defense has been 
shown, and the case shall thereafter proceed to trial" 
etc. 

The question before us to determine is whether or 
not the trial court erred in holding that the motion and 
affidavit failed to disclose a prima facie defense on the 
merits tc the whole or part of plaintiff's demand. De- 
fendants' principal reliance is upon want of consideration. 
The affidavit above summarized sets out facts which, if 
proved, would establish such defense and counterclaim. 
No warrant is cited in the briefs, nor do we find any, 
for the filing of motions to strike affidavits to open a 
judgment or for the taking of oral testimony on contro- 
verted questions of fact. The rule is to the contrary. 
Stone v. Levins on . 228 111. App. 342; C. F. Birtman Co. 
v. Thompson , 136 111. App. 621. The trial court had no 
right to pass upon the controverted questions of fact or 
to deprive defendants, if they so elect, to their right 
of trial by jury. Kolmar. I nc . v. Moore . 323 HI. App. 323 J 
Stranak v. Tomasovic. 309 HI. App. 177. 

The order appealed from is reversed and the cause is 
remanded with directions to open the judgment and to grant 
leave to plead to the merits and to file a counterclaim. 

REVERSED AND REIIANDED WITH DIRECTIONS. 
Peinberg, P. J., and Niemeyer, J., concur. 



«■•'■ 



No. 10296 



3 37I.A. 294 



In the 
APPFLLATE COURT OP ILLINOIS 
Second District 
October Term, A. D. 19^8 



JOHN S. STOPPER, ) Appeal from the 

) Circuit Court of 
Defendant-Appellant ) DuPage County 



vs. 



GARY WHSATOH BANK, a banking ) Honorable 

corporation, of Illinois, as trustee ) v:In G. Knoch, 



Plaintiff -Appo llee 



I 



Judge Presiding 



BRISTOW, J. - - The circuit court of Du Page County entered a 
decree in this cause, the propriety of which this appeal questions. 
The facts in this case which are undisputed are as follows: The 
Gary wheaton Bank, as trustee in its trust I3I4. acquired title to 
"The South half of lot 32 in Franzens Addition to Bensenville in 
Du Page County, Illinois" by a deed which wa3 recorded on July 22, 
19U+« The grantor in that deed acquired all the right, title and 
interest of George Franzen in that property, pursuant to a sheriff »s 
sale hold June 7» 19^-3, under an execution having been levied 
thereupon. On May 12, 1928, C-eorgo Franzen, with his wife con- 
veyed the premises by trust deed to Albert Franzen, to secure two 
notes, each in the principal sum of C 1,000,00, bearing Interest and 
due three years after date, that is May 12, 1931; that on or 















. . -.. 



i 
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A 1 ■ x 



about the due date the payment of the principal was extended by 
a -reement in writing for another three yearn, namely to May 12, 
193' • Extension interest notes were likewise executed and de- 
livered; that this extension agreement mm never recorded; that 
the trust deed was recorded on Kay 2J t 1928; that there was de- 
fault in he payment of inter st that was due November 12, 1933, 
all prior payments having boon made while Bathing was paid there- 
after; that John 3« 'topper waa the owner of note number one, and 
Grace Helton was the owner of note number two* 

The complaint filed in this case sought to have the lien of 
John S« Stopper created by the trust deed securing his note for 
'1,000. released and extinguished. The Court entered a decree 
granting the relief prayed for, holding that the ten year Statute 
of Limitations had run upon the notes and that the trust deed was 
null and should be released, a&d ordered the Master in Chanc 7 
to release the same in the event the trustee failed to io so. 
It is agreed that the sole question involved herein la one of law, 
namely, that the Court erred in determining that the Statute of 
Limitations not only barred the remedy but also barred the lien. 

The trust deed in question having been unreleased constitutes 
a cloud upon appellee* 3 title and the present proceeding Is a 
proper one to remove the same. "In the case of Hoby v. South 
Park Commissioners (215 111. 200) at page 203, our Supreme Court 
defines a cloud on the title as follows: *A cloud on title is an 
outstanding claim or encumbrance which, if valid, would affect or 
impair the title of the owner, and which appears on Its face to 
have that effect but which can be shown by extrinsic evidenco to 
be invalid. A cloud exists where a titlo of on adverse party to 
land is valid upon the face Of the Instrument or the proceedings 
sought to be set p.. side, and It requires extrinsic facts to show 
the supposed conveyance to be Inoperative and void.* " 



2. 






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It is conceded by appellant that his remedy to enforce his 
rights under his trust deed has been oarred by the Statute of 
Limitations. "Section 11 of the Limit* lions Act (111. ReV#Stat« 
19k7, Chap. 33) with respect to mortgages provides : 'No person 
shall commence an action or make a sale to foreclose any mortgage 
or deed of trust In the nature of a mortgage unless within ten 
years after the right of action or right to make such sale ac- 
crues. 1 " Now the appellant presents the rather novel question: 
Does the trust deed unsupported by a valid debt continue and re- 
main in force, separately and independently, as a valid lien 
against appellee *s property? To answer this inquiry in favor 
of appellant, we would present a situation where there is a right 
to a lien 1 nd no ironedy to enforce It. 

We are of the opinion that appellant is in error In his con- 
tention that the lien of the trust deed creates in him substantive 
rights Tshich endures bejond the life of the debt secured thereby. 
Our courts have repeatedly held that the debt alone gives rise 
or creates such substantive rights, and that the lien created by 
the trust deed is a part of the remedy. "The nature of the rights 
created by a Tfuat Deed are discussed by our 3-upreme Court in the 
case of Lightcap v. Bradley, 186 111. 510, the Court at page p22 
saying: 'So, too, courts of law now regard the title of a mort- 
gagee in fee in the nature of a base or determinable fee. The 
term of its existence is measured by that of the mortgage debt. 
V.hen the latter is paid off, or becomes barred by the Statute of 
Limitations, the mortgagee's title is extinguished by operation of 
law. (Pollock v. Maison, kl 111. 516; Harris v. Mills, 28 iu.l^.; 
Gibson v. riees, i>0 Id. 383.) Hence the rule is as well established 
at law as it Is In equity, that the debt is the principal thing and 
the mortgage an Incident. 

3. 



« 

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■ 

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1 

ID 





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'The mortgagee is the legal owner for only one purpose, 
while, at the sane tine, the Mortgagor ia the owner for every 
other purpose and against evnr;' other person. The titlo of 
the mortgagee Is anomalous, and e.-ciots only between him and the 
mortga~or rjid for a limited purpose. Delano v. Bennott, 90 111. 
533, was an action of ejectment. g« T, Warren, the owner of 
two-f fths of the land in controversy, mortgaged the same to the 
Kennebeck Bank of Maine. The bank conveyed said two-fifths to 
Benjamin Vales nd others, and Delano claimed the same through 
mesne conveyances from the ^rantec of the banl:. It was held 
that the deed from the bank purporting to c nvoy thistwo-f If ths 
interest did not convey any thin;-, and the court said (pa:;o 536): 
'The mortgage is deemed a mere incident to C2us ttrtgaga in the 
land without an asslgJWA&t of tho debt is considered in law as a 
nullity,' The title is never out of the mortgagor, except as 
between him and the mortgagee and as an Incident of the mortgage 
debt, for the purpose of obtaining satisfaction. ' hen the debt 
is barred by the Statute of Limitations the tiijL e of the mort- 
gagee or trustee ceases at law as v;ell as in equity, when 
debt, the principal thing, is tone, the incident, the mortga 
Is also -one. Pollock v. Mai son, !jJL 111. 5l6.) The mort- 
gagor's title is then freed from the title of tho mortg-" see a 
and he Is the owner of the premise, not by any new title, but 
by the title which ho always ha 1. statutes of Limitation do 
not transfer title from one to another, and a statute of limita- 
tions which would have tho effect of transferring the legal 
title back from the Mortgages to the mortgagor would be uncon- 
stitutional. (ITewland v. Marshy 1? m. 376). The title of the 
mortgagor becoiaes perfect because the title of the mortgagee ia 
measured by the existence of tho mortgage debt or obllg tion and 
terminates with it, Barrett v. Hinckley, supra," 

In the case of Markus v. Chicago Title and Trust Co, 373 
111, 557* the court said; "It is, on tho other hand, concoded 



L. 



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I 



that where the deb$ is paid or barred by the Statute of Limita- 
tions, a mortgage being but incident to tho debt, is no lon~er 
2. lien on the property". 

It is also contended by appellant that Section 11(b) of the 
Limitations Act provides that tho lion of ft recorded trust deed 
shall continue for twenty years after the de- 1 it secure! becomes 
iue. :;e are of the view that this section has no applications 
to the problem under consideration, '.Tie sole purpose of this 
section is to provide e twenty year 11 U I b«3 for the enforce- 
ability of unrecorded extensions, Pertainin •: to this subject the 
Court in the case of McCarthy v. Lowenthal, 327 111, App, 166, had 
this to say: "(2) Under the Kraft v, Uolzmann case, the lien of 
the trust deed, ^Lc,, «nms kept alive as long as the Indebtedness 
secured thereby was continued in force, without the necessity of 
any recording or the extension erreement. The purpose of 
Section 11 (b) Is to Bet a limit beyond which unrecorded exten- 
sions do not have that effect. If a mortgagee sees fit to ex- 
tend the d te of payment of the indebtedness, ho may do 30 v/ithcut 
prejudice to his lien and without recording tho extension a -ree- 
ment for twenty years after the due date of tho mortgage by its 
terms or on Its face wus due. If he wishes to preserve his 
lien there f tcr, however, he must see to it that the extension 
agreement or affidavit as provided in Section 11(b) Is recorded. 

v (3,h) "<e 3© e no repugnancy between these sections r,nd, ac- 
cordingly* we hold that Section 11(b) did not repeal Section 11, 
The action filed in this case came within the limitation of Sec- 
tion 11 and we believe the decree was proper. It is affirmed," 

In view of the foregoing, we are of trie opinion that decree 
entered herein should be affirmed* 

DECRF TRUED 



5. 






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44440 



PAYSOFF TINKOPP, 



Vi 



Appellant, 



HON, FRANK If. PADDEN, etc., 

Appellee. 



APPEAL FROM CIRCUIT COURT 
COOK COUNTY 




J ' 



3 37 1.A. 382 



MR- JUSTICE NIEMETER DELIVERED THE OPINION OF THE COURT. 



Plaintiff appeals from an order striking his 
amended complaint and dismissing his action against 
defendant, a duly elected and qualified Judge of the 
Superior court of Cook county, for damages arising from the 
alleged, wilful, malicious and corrupt misconduct of 
defendant resulting in the dismissal of several actions at 
law and in equity brought by plaintiff in the Superior court 
of Cook county. 

The jurisdiction of the Superior court of the 
several causes of action is not questioned. Defendant as a 
judge of the court was empowered and authorized to enter 
orders in and determine each of said causes of action 
unless disqualified for some reason personal to him. The 
alleged disqualification stated in the complaint is, 
"a personal ill-will, hatred, hostility and bias and 
prejudice against the plaintiff," and that defendant was 
named with other judges in a petition foy change of venue 
from such judges properly filed by plaintiff. The defen- 
dant's disqualification, if any, to sit in the cases 
instituted by plaintiff was a matter to be determined 
by defendant as a judge sitting in a court having Juris- 
diction of the subject matter of and the parties to the 
litigation. The universal rule is that in such circumstances 
the judge is not liable for his actions in a civil suit for 
damages, even though he act maliciously and corruptly. 



2. 

People ex ^cl. Gjaioagg 'Bar .Asa'n. ' . v. gtandidge , 333 111, 
361; Bradley v. Fisher , 80 U. S. 335. 
The Judgment is af firmed. 

AFFIRMED. 
Feinberg, P. J., and Tuohy, J., concur. 



337/ia<jf383 



i 



43867 

HARRY Y. VICTOR et al., 

Appellants, 

v. 

HERBERT HILLEBRECHT et al,, 
Appellees. 



APPEAL FROLI SUPERIOR 
COURT, COOK COUNTY. 



MR. PRESIDING JUSTICE SULLIVAN DELIVERED TEE OPINION 
OF THE- COURT. 

Pursuant to a reorganization plan approved in a pro- 
ceeding instituted under section 77B of the Bankruptcy Act 
(11 U.S.C.A., sec. 207), a liquidation trust agreement was 
executed on November 6, 1935 as to the property located at 
7000 South Shore Drive, Chicago, Illinois, which premises 
are improved with a 16 story apartment hotel building, con- 
taining 31 unfurnished apartments and 143 furnished apart- 
ments. Under said agreement the Trust Company of Chicago 
was named liquidation trustee and Herbert Hillebrecht, 
Walter A. Wade and James V, Brenner were named as trust 
managers. 

This suit was instituted as a representative pro- 
ceeding by several owners of beneficial units of the trust 
to compel the trust managers and the liquidation trustee 
tc submit an offer of purchase of the trust property to 
the beneficiaries, to liquidate the trust estate and to 
distribute its assets. The complaint also asked that 
certain beneficial units purchased by Hillebrecht, one of 
the trust managers, after he had assumed his trust duties, 
be decreed to be trust property upon his reimbursement 
for his outlays in purchasing such beneficial units. 

The cause was submitted on the complaint and answer 
and after evidence and argument were heard by the chancellor 



-2- 

he entered a decree dismissing the complaint for want of 
equity. Plaintiffs appeal. There is no question raised 
on the pleadings „ 

The trust was to continue for a tern of 15 years 5 
expiring July 1, 1950, but was subject to prior termination 
by the liquidation of the trust property. The purpose of 
the trust as stated in Section 2 of Article II of the trust 
agreement was "to liquidate the Trust Property" and con- 
vert same into cash and to that "end" and "purpose" the 
liquidation trustee and the trust managers were directed to 
"endeavor to make sale or other disposition of the Trust 
Property as soon as in the -pinion of Trust Managers it can 
be done advantageously and tc distribute the proceeds of 
such sale and disposition to and among the holders of 
Participation Certificates," 

Section 2 of Article XIV of the trust agreement 
provides as follows: 

"It is the intent hereof that Trust Managers shall 
by written directions to Liquidation Trustee liquidate Trust 
Property and in the interim supervise the management, opera- 
tion, improvement, protection and maintenance thereof, all 
as Trust liana gers in their judgment nay deem advantageous 
to the holders of Participation Certificates issued here- 
under," 

In Section 3 of Article III of said agreement it is 
provided that no sale of the trust property may be made 
unless the liquidation trustee "shall first give notice to 
the holders of Participation Certificates then outstanding, 
briefly describing the property and the terms and conditions 



-3- 

of the proposed sale", and that, "if within 20 days after 
the giving of such notice holders of Participation Certifi- 
cates representing 33-1/3 per cent or more of the then out- 
standing Trust Units shall file with Liquidation Trustee 
written dissents from such proposed sale," the "Liquidation 
Trustee shall not consummate such proposed sale," 

At the tine the trust was created, one trust unit 
was given to bondholders in exchange for each $100 of the 
principal amount of bonds they owned. While acting as 
trust managers Hillebrecht and V» T ade purchased beneficial 
interests in the trust through the agency of Greenebaun 
Investment Co., a brokerage h^use, which maintained an 
active market for such interests. In addition to 35 trust 
units received by Hillebrecht in exchange for $3500 in 
bonds which he owned when the trust was created, he pur- 
chased from time to time, commencing during the summer of 
1936, various blocks of units at prices ranging from $19 
to $51.50 per unit, so that at the tine of the trial he 
owned 14-80 units or more than one-tenth cf the 14,439 cut- 
standing trust units. He purchased for his brother, his 
sister and his mother an aggregate of 133 units, V/ade 
purchased 50 trust units, for which he paid $51.50 per 
unit, and he purchased additional trust units for nenbers 
of his family. 

In 1943 the trust managers received offer r, f 
$450,000 and $550,000 for the trust property and in January, 
1946 they received an off or of $750,000. All of these 
offers wer? regarded by the trust managers as insufficient 
and they were not submitted to the beneficiaries for their 



-4- 

consideration. On February 11, 1946, which was more than 

ten years after the trust had been created, the trust 

managers received an offer of $850,000 for the trust 

property, which they also refused. However, having had 

an appraisal made which showed the value of the property 

to be $850,000, the trust managers wrote a letter to the 

liquidation trustee on February 15, 194-6, which contained 

the following paragraph: 

"The Trust Managers have concluded that they will 
advise the owners and holders of certificates of beneficial 
interest of Mr. Meier's offer [$850,000] and certain other 
facts which they consider relevant. They will not recommend 
to the owners and holders of certificates of beneficial in- 
terest the acceptance of the Meier proposal," 

Plaintiffs' complaint alleged inter alia that the 
trust managers intended to mail a communication to the 
owners of the beneficial interests recommending that the 
$850,000 offer be rejected and that they had no authority 
to make any such recommendation. By way of relief in this 
regard the complaint asked that the trust managers be re- 
strained from mailing any communication to the beneficiaries 
in connection with the submittal of said offer without the 
approval of the court and that "the c -urt may approve the 
form of the communication and direct the defendants to mail 
such communication to the unit holders pertaining to the 
sale of the premises." 

The trust managers in their answer admitted in effect 
that they intended to mail a communication to the certifi- 
cate holders recommending the disapproval of the $850,000 
offer. 

When cross-examined by plaintiffs' counsel under 
section 60 of the Civil Practice Act, Hillebrecht was 



-5- 

asked the following question and he made the following 

answer : 

"Q. Now- then the offer of $850,000 was nade to 
the trustees, the trustees instructed the Trust Company 
of Chicago to submit an offer but the trustees stated 
that they would recommend that the trust certificate 
holders shall dissent from the salej is that correct? 

"A. That is right; that is the way it was leftl" 

Later in his testimony, upon interrogation by the 
trial judge and defendants' attorney, he stated that the 
trust managers had decided, before they sent their letter 
of February 15, 194-6 to the liquidation trustee, to submit 
the offer of $850,000 to the certificate holders without 
any recommendation* 

The complaint charged that only one of the trust 
managers, Hillebrecht# acquired beneficial interests in the 
trust and that he had purchased one-third of the outstand- 
ing interests* When the proof showed that Hillebrecht ac- 
quired approximately one-tenth of the beneficial interests 
after he became trust fflanag<©i , j that members of his family 
acquired additional trust units and that V/ade had also ac- 
quired beneficial interests after he became trust manager, 
plaintiffs presented to the trial court an amendment to the 
complaint, which they claimed conformed the complaint to 
the proof. The court denied leave to file the tendered 
amendment but defendants' counsel agreed that "no point 
■would be urged upon appeal that the allegations of the 
complaint did not conform to the proof." 

Plaintiffs contend (1) that "the Trust Managers and 
the Liquidation Trustee were in duty bound to submit the 
offer to the beneficiaries without any attempt on their 



-6- 

part to influence the beneficiaries whether or not to dissent 
and the Chancellor clearly erred when he denied such relief"* 
(2) that "the Trust Managers having consented to submit the 
offer without any recommendation, it was the duty of the court 
to grant the relief"; and (3) that "trustees must be impartial 
and have no right to take sides by creating a clash among the 
beneficiaries of the trust." 

Defendants assert in effect that, because Hillebrecht 
changed his testimony and stated that the trust managers had 
decided, before they sent the letter to the liquidation 
trustee, to submit the offer without any recommendation, the 
chancellor properly refused to interfere with the trust 
managers, even to the extent of directing them to secure 
the court's approval of the communication they proposed to 
send to the beneficiaries with the submission of the offer. 

As we understand defendants 1 position in this regard, 
it seems to be that, when Hillebrecht' s testimony that the 
trust managers had decided before they sent their letter of 
February 15, 194-6 to the liquidation trustee to submit the 
$850,000 offer to the beneficiaries without any recommenda- 
tion is considered in connection with the statements con- 
tained in said letter, it can only be reasonably crncluded 
that the trust managers never intended to do otherwise than 
to submit the offer without any recommendation. The posi- 
tion of the trust managers in this respect is a complete 
departure from their position not only from the inception of 
this litigation but from the time they wrote the letter, here- 
tofore set forth, to the liquidation trustee, two weeks before 
this suit was commenced. Plaintiffs construed this letter as 



-7- 

an indication by the trust managers of their intention to 
recommend to the beneficiaries "not to sell" and the com- 
plaint alleged that such was the intention of the trust 
managers. That plaintiffs were warranted in so interpreting 
the letter is demonstrated by the fact that the trust mana- 
gers placed the same interpretation upon it in their sworn 
answer. Furthermore, defendants' counsel in his opening 
statement at the trial asserted that "the trust managers did 
intend to finally submit that offer to the certificate hold- 
ers but would recommend to them that it be not accepted" and 
Hillebrecht testified shortly after said opening statement 
was made that when the direction was given to the liquida- 
tion trustee to submit the offer of $850,000 to the holders 
of certificates of beneficial interest, the trust managers 
stated that they would recommend that the beneficiaries "shall 
dissent from the sale." In view of Hillebrecht 's original 
testimony, the position of the trust managers both prior and 
subsequent to the time they sent the foregoing letter to the 
liquidation trustee as to their right to recommend the re- 
jection of the offer and the theory of defendants' counsel 
at the time of the trial to the same effect, it is readily 
apparent that, when Hillebrecht testified that the trust 
managers had decided, even before they sent the letter to 
the liquidation trustee, tc submit the offer without any re- 
commendation, such testimony was unworthy of belief and 
should have been entirely disregarded. This belated testi- 
mony of Hillebrecht was directly contrary to his prior posi- 
tive testimony that the trust managers intended to recommend 
to the beneficiaries the rejection of the offer. He couldn't 
possibly have been confused or honestly mistaken when he 



-8- 

changed his testimony and the record discloses that even his 
own attorney was surprised at such change. The only possible 
explanation for the sudden switch in Hillebrecht 's testimony 
is that he finally realized that the trust managers had 
assumed an untenable position by claiming that they had the 
right to recommend the rejection of the offer and he thereby 
sought to extricate them from such position. 

It has been repeatedly held that under a trust agree- 
ment creating a liquidation trust, such as that involved here- 
in, the trust managers must include in the notice to the bene- 
ficiaries of an offer to purchase the trust property an im- 
partial statement of the relevant facts pertaining to the 
property and its condition and the terms and conditions of 
the offer, that such notice must not include mere conclusions 
of the trust managers as to the advisability or inadvisability 
of accepting the offer, that the offer must be submitted with- 
out any attempt on the part of the trust managers to influence 
the beneficiaries for or against its acceptance, except as 
they might be influenced by the relevant facts, and that it 
is for the beneficiaries to draw their own conclusions from 
such facts as to whether the offer should be approved or 
disapproved. ( Shapiro v. Chica g o Title & Trust Co .. 328 111. 
App. 650,* G-aver v. Gaver . 176 Md, 171, 4 A. (2nd) 132, 138; 
Adams v. Cowen. 177 U e S, 4-71, 483.) To hold otherwise would 
defeat the very purpose and intent of the trust agreement 
to allow the beneficiaries to make their own decision on the 
acceptance or rejection of an offer, uninfluenced by the 
desires of the trust managers. 

That the trust managers still do not intend to restrict 



~9- 

their communication to the beneficiaries to a statement of 
the relevant facts in connection with the property and the 
offer, unless they are compelled to do so, is clearly demon- 
strated by the suggestion in defendants' brief that the 
trust managers "would probably advise the beneficiaries" 
that "possibly a much greater price would be in prospect" 
if and when the OPA rent regulations "ended." At the time 
the offer was made and at the time this case was tried, it 
was a matter of pure speculation as to when the rent regula- 
tions would be abrogated and, if they were, there were many 
other unpredictable factors which might well affect the 
price procurable for the property, notwithstanding the re- 
moval of the ceiling on rents. 

The principal purpose of this suit was to restrain 
the trust managers from wrongfully attempting to influence 
the certificate holders to vote to reject the $850,000 offer 
and tc compel them to submit the offer without any recommen- 
dation. The trust managers were strongly opposed to the 
acceptance of the offer. The only reason they condescended 
to submit it at all to the beneficaries was because they 
knew that they would have been derelict in their duty as 
trustees, if they failed to submit it, after having pro- 
cured an appraisal themselves from the Chicago Real Estate 
Board showing that the value of the property was $850,000. 

Plaintiffs, having been compelled to seek the aid of 
a court of equity tc frustrate the wrongful intention of the 
trust managers to recommend the rejection of the offer, cer- 
tainly should not have been denied the relief sought in this 
regard, after they had established their right to it. 



-10- 

Glosely related to the opposition of the trust mana- 
gers to the $850,000 offer is the ownership by Hillebrecht 
and Wade and members of their families of more than one-tenth 
of the outstanding beneficial units of the trust. 

Plaintiffs insist that the trust managers violated 
their duty as trustees by purchasing beneficial interests in 
the trust, because by so doing they placed themselves in a 
competing position as to the beneficiaries generally and one 
that might well be adverse to them. 

Defendants' position in this regard is (1) that "the 
trust managers had a right to purchase units of beneficial 
interest for themselves;" (2) that "if there was impropriety 
in any purchase of a certificate, the seller is the only one 
who can complain" and (3) that "the ownership of units of 
beneficial interest creates no interest in the trust managers 
adverse to the interests of the beneficiaries generally." 

Since no case in this or any other jurisdiction has 
been called to our attention by counsel for either side, 
wherein the precise questions presented here have been deter- 
mined, such questions must be considered in the light of 
fundamental rules of equity applicable generally to the con- 
duct of trustees. 

Article XIV of the trust agreement provides that 
"trust managers may, but need not, be holders of" participa- 
tion certificates. The obvious purpose of this provision 
was to enable the holders of bonds, who were to receive 
certificates, to qualify as trust managers but the trust 
instrument did not authorize the trust managers, after they 
became such, to acquire beneficial interests in the trust. 



-11- 

Counsel for defendants assert that, while it is true 
that the trust agreement does not expressly authorize the 
purchase by the trust managers of beneficial units in the 
trust, it is also true that said agreement does not express- 
ly prohibit their purchase of such units. They further 
assert that while the trust managers may be considered as 
trustees for the unit holders as far as the hotel property 
and its management and operation are concerned, they can in 
no sense be considered as trustees of the beneficial units 
or the certificates representing them, since they have ab- 
solutely no control over those units or certificates and 
stand in no fiduciary relationship in respect thereto. It 
is then urged that the trust units are more closely akin to 
shares of stock in a corporation than to the interest of a 
beneficiary under an ordinary trust created by will or inter 
vivos agreement and that the rules applicable to purchases 
by trustees from beneficiaries do not apply. In support of 
their position in this respect, defendants cite Hooker v. 
Mi dland Steel Co. . 215 111. 444, Bawden v. Taylor. 254 111. 
464, and Anchor Realty & In vestment Co. v. Raffer ty, 308 111. 
App. 484. These cases involve the right of directors to pur- 
chase the stock of their corporations and hold in effect 
that, since the business and property of a corporation are 
entrusted to its officers and they are empowered to act for 
the whole body of stockholders, they therefore occupy the 
position of trustees for the stockholders as a body in 
respect to such business and property and cannot have or 
acquire any personal or pecuniary interest in conflict with 
their duty as such trusteej that there is no trust 



-12- 

relationship between a director of a corporation and an in- 
dividual stockholder with respect to the latter' s stock, 
over which the director has no control whatever; and that, 
therefore, he may deal with an individual stockholder and 
purchase his stock practically on the same terms as a 
stranger. It is the lack of a trust relationship between 
them that permits directors to purchase the stock of a cor- 
poration from its shareholders. The rule enunciated in the 
foregoing cases is not applicable to an express trust, 
where the relation of trustee and cestui qui trust exists. 
The trust instrument in the case at bar expressly provides 
that "the agreement creates a true trust" (section 3j 
article II) and another provision of the instrument (section 
2, article XIV) charges the trust managers with the specific 
duty of liquidating the trust property for the benefit of 
the certificate holders, thereby making them trustees for 
the individual beneficiaries. 

On oral argument defendants cited Donnell y v . Con- 
so lidat ed Investment Corp. , 99 F. (2d) 185, as an addi- 
tional authority on the right of the trust managers to 
purchase trust units from the beneficiaries of the trust, 
as distinguished from the purchase of the trust property 
itself. In our opinion, the Donnelly case is not appli- 
cable, because it involved a so-called Massachusetts Trust, 
which was characterized by the court as "a common form of 
business organization," likened "for the purposes of taxa- 
tion -**-::- to corporations, which they much resemble, the 
trustees being analagous to directors and the shareholders 
to corporate stockholders," 



-13- 

The distinction between a Massachusetts trust and a 
liquidation trust appears from the decision in Mo rrissey v. 
Commissioner. 296 U. S. 344, where the court, holding that 
such an organization has the characteristics of a corpora- 
tion and is therefore distinguished from the ordinary trust, 
said: "In what are called 'business trusts' the object is 
not to hold ami conserve particular property, with incidental 
powers, as in the traditional type of trusts, but to provide 
a medium for the conduct of a business and sharing its gains. 
Thus a trust may be created as a convenient method by which 
persons became associated for dealings in real estate, the 
development of tracts of land, the construction of improve- 
ments, and the purchase, management and sale of properties; 
or for dealings in securities or other personal property, or 
for the production, or manufacture, and sale of commodities; 
or for commerce, or other sorts of business; where those who 
become beneficially interested, either by joining in the plan 
at the outset, or by later participation according to the 
terms of the arrangement, seek to share the advantages of a 
union of their interests in the common enterprise." That 
form of organization bears no resemblance whatever to the 
liquidation trust here under consideration, the object of 
which was to dispose of the property "as soon as in the 
opinion of the trust managers it can be done advantageously" 
and to distribute the assets among the beneficiaries. 

Defendants insist that if there was impropriety in 
any purchase of a certificate, the seller is the only one 
who can complain. They readily admit that a trustee cannot 
purchase in his own name and for his own benefit an outstand- 
ing judgment lien, squatter's right in the trust property, 



-14- 

etc, and that, if he does so, the trust is entitled to the 
benefit thereof upon reimbursing the trustee for his outlays 
in connection with such a purchase, but they say that this 
rule has never been applied to the purchase by a trustee of 
a beneficial interest from a beneficiary. By specious 
reasoning defendants argue that since the trustee has the 
right to purchase for himself the interest of a beneficiary 
and that such a purchase can be set aside only for fraud, 
"it seems to us axiomatic that the only one who can com- 
plain of the fraud is the person defrauded." There is no 
force to this argument in view of the obvious fact that the 
rights of the holders of trust units who did not sell same 
to Hillebrecht and Wade, were also affected by the conduct 
of the trust managers, as will be hereinafter shown. The 
cases cited by defendants, which hold that conveyances in 
fraud of creditors can be set aside only by creditors who 
are defrauded, are not applicable. The question as to 
whether the trust managers were guilty of fraud as to the 
holders of trust units, who sold them to Hillebrecht and 
Wade, is of no consequence in this proceeding. The 
question here concerns rather the propriety of the purchase 
by the trust managers of beneficial interests in a trust, 
which was created for the benefit and advantage of the 
beneficiaries generally, in whom was vested the right to 
accept or reject an offer to purchase the trust property 
upon its submission to them by the trust managers. 

This brings us to the consideration of defendants' 
contention that "the ownership of units of beneficial 



-15- 

interest creates no interest in the trust managers adverse 
to the interests cf the beneficiaries generally." 

That the trust managers were unwilling tc sell the 
property at any reasonable price at the tine they received 
the $850,000 offer appears from the allegation in the com- 
plaint, which was not denied, that said offer was made 
without any privilege to the offeror, who was willing, in 
the event that offer was approved by the certificate hold- 
ers, that higher bids might be received and the property 
sold to the highest bidder for cash. Although he read the 
form of the offer, Hillebrecht testified that he did "not 
know that in the offer of $850,000 we [the trust managers] 
had the right to receive higher bids," and then added that 
"if there was a price of $850,000 submitted without any 
condition, just to find out how the bondholders felt, the 
trust managers would not even want to submit it at any price 
at this time, even though we would not be bound on their 
approval to sell." This testimony indicates the determined 
opposition of the trust managers not only to the $850,000 
rffer but to any higher offer that might have been made 
at that time and it affords a reasonable explanation for 
such opposition and for the willingness of Hillebrecht and 
Y/ade to invest upwards of $40,000 of their own funds in ac- 
quiring large blocks of trust certificates. If permitted to 
continue their acquisition of trust units, they could pur- 
chase enough certificates themselves or in combination with 
others to attain sufficient voting strength to block any bid 
made and thus defeat the wishes cf the holders of as many as 
two-thirds of the trust units who might desire to sell the 



-16- 

property, until such tine as the trust managers considered 

it advantageous to themselves to liquidate the trust. 

It would be naive, indeed, to ascribe to Hillebrecht 
and his cotrustee the altruism they claim in purchasing 
these certificates - to prevent others from acquiring 
control. Their conduct can be interpreted only as a course 
of speculation in securities of the trust for their own ad- 
vantage and, when they embarked on such a course, they did 
so to create for themselves an interest in the trust, which 
was patently adverse to the interests of the beneficiaries 
generally, many of whom undoubtedly desired that the trust 
property be sold at a fair price and at a relatively early 
date. Furthermore, by voting his trust units against the 
$850,000 offer, as he testified he would, Hillebrecht would 
necessarily compete with the beneficiaries who favored the 
acceptance of such an offer. 

The fact that the trust ranagors had n it acquired 
the one-third interest in the trust necessary to block any 
offer that might be submitted for the purchase of the *rust 
property is not of crucial importance, because their owner- 
ship of more than one-tenth of the trust units could easily 
lead to the formation of a group strong enough to reject any 
offer made, however, advantageous it might be considered by 
the remaining certificate holders. 

Even though it be assumed that the trust managers 
did not stand in a fiduciary relationship in respect to the 
trust units when they purchased them, their ownership of 
same gave then a substantial interest in the trust, which 
might readily tenpt then to neglect the interests of the 



-17- 

beneficiaries gGnerally, 

In this state the fundamental duty of a trustee Is 
defined in Thorp v. McCullun . 6 111. 6l4, one of the earliest 
decisions of our Supreme Court, from which we quoted as 
fellows in Peop le ex rel. v . Central Republic Tru st Co >t , 
300 111, App. 297: "The temptation of self interest is too 
powerful and insinuating to be trusted. Man cannot serve 
two masters j he will foresake the one and cleave to the 
other. Between two conflicting interests, it is easy to 
foresee, and all experience has shown, whose interests will 
be neglected and sacrificed. The temptation to neglect the 
interest of those thus confided must be removed by talcing 
away the right to hold, however fair the purchase, or full 
the consideration paid; for it would be impossible, in many 
cases, to ferret out the secret knowledge of facts and ad- 
vantages of the purchaser, known to the trustee or others 
acting in the like character. The best and only safe anti- 
dote is in the extraction of the sting; by denying the right 
to hold, the temptation and power to do wrong is destroyed." 

That Illinois courts have steadfastly adhered to the 
principle enunciated in the Thorp, case is shown in BenneVfe 
v. We ber, 323 Ill 233, wherein the court said that "early 
in the history of the State, it was laid down as a general 
principle of equity that a trustee cannot deal on his own 
account with the thing or the person falling within the 
trust; *** a trustee is not permitted to place himself in 
a position where it will be difficult for him to be honest 
and faithful to his trust." In the early case of Michaud v t 
Girod. 4 Howard 503, 11 L. Ed. 1076, the court said: "There 



-18- 

the 
is no blinking/fact that the ground on which the court 

denounces as a fraud the purchase by a trustee of trust 
property is that it inevitably brings about a conflict of 
interest between himself personally and the beneficiaries 
of his trust; or at least incites a motive, or affords 
opportunity for a motive, on the part of the trustee to 
take advantage of his superior knowledge acquired in his 
trust capacity, which may induce him to conceal his infor- 
mation from the beneficiaries or not tc employ it ex- 
clusively for their benefit while they are relying on him 
scrupulously to devote himself to the furtherance of their 
welfare," 

In Wootte n v. Wootten f 151 F. (2) 147, the court 
said (p. 150): "A trustee must not compete with his 
beneficiary in the acquisition of property. The principle 
is not limited to cases where the fiduciary acquires 
property entrusted to him, nor to cases where the fidu- 
ciary competes with the beneficiary in the purchase of 
property which the trustee has undertaken to purchase for 
the beneficiary. Even though the interest purchased by 
th e fiduciary for himself is not property of the benefi- 
ciary entrusted to the fiduciary,, nor property which the 
fiduciary has undertaken to purchase for the bene ficiary. 
the principle applies if the property purchased by the 
fiduciary for himself is so connected with the trust 
property or the scope of his duties as fiduciar y t that it 
is improper for him to purchase it for himself. " ( Italic s 
ours.) 



-19- 

The following often-quoted excerpt fron the opinion 
in Meinhard v. Salmon . 24-9 N. Y. 458, 164 N. E. 545, 
written by Mr. Justice Cardozo, nay well be used as a 
standard for the scrupulous conduct required of a trustee: 
"Many forms of conduct permissible in a workaday world for 
those acting at arm's length, are forbidden to those bound 
by fiduciary ties. A trustee is held to something stricter 
than the morals of the market place. Not honestly alone, 
but the punctilio of an honor the most sensitive, is then 
the standard of behavior. As to this there has developed 
a tradition that is unbending and inveterate. Uncompromis- 
ing rigidity has been the attitude of courts of equity when 
petitioned to undermine the rule of undivided loyalty by 
the 'disintegrating erosion 1 of particular exceptions. 
( ^endt v. Fischer. 243 N. Y. 439, 444.) Only thus has the 
level of conduct for fiduciaries been kept at a level higher 
than that trodden by the crowd. It will not consciously be 
lowered by any judgment of this court." 

In York v. Guaranty Trust Co. . 143 F. 2d 503, the 
court emphasized the fact that a trustee owes his benefi- 
ciaries undivided loyalty, "entirely untinged by consid- 
erations of any important benefits to himself #** and one 
whose edge cannot be dulled by frequent use," and quoted 
with approval an excerpt from Baver v. Beran . N. Y. L. J. 
April 20, 1944, wherein Mr. Justice Shientag said: "While 
there is a high moral purpose implicit in this transcendent 
fiduciary principle of undivided loyalty, it lias back of it 
a profound understanding of human nature and of Its frail- 
ties. It actually accomplishes a practical beneficient 



-20- 

purpose. It tends to prevent a clouded conception of fi- 
delity that blurs the vision. It preserves the free exer- 
cise of judgment uncontaminated by the dross of divided 
allegiance of self-interest. It prevents the operation of 
an influence that may be indirect but that is all the more 
potent for that reason. 

Professor Bogert in his work on Trusts and Trustees, 
volume 3, section 484, summarizes the rule as follows: "One 
of the cardinal principles in the law of fiduciary relation- 
ships is the "ule that the fiduciary must be absolutely 
loyal to his beneficiary or principal and that he must 
exclude all selfish interest in his dealings ***." The 
principles enunciated in these and othe~ authorities that 
might be cited, have been generally followed and the counts 
invariably emphasize that it is only by rigid adherence to 
them that all temptation can be removed from a fiduciary to 
serve his own interest when it is in conflict with the ob- 
ligations of his t^ust. 

Considering the conduct of the trust managers in the 
light of the foregoing principles of equity, we are impelled 
to hold that their course of dealing was utterly inconsistent 
with their duties as trustees. Accordingly, they should be 
relieved of their positions as trust managers and others ap- 
pointed in their stead, in whom the beneficiaries may have 
the utmost confidence; and in view of our conclusion that 
the trust units purchased by the t^ust manager constituted 
adverse and competing interests, so far as the sale of the 
trust property is concerned, Hillebrecht and 7ade should be 
reaiAired to hold the ©e?ti£i©ate<§ representing such trust 



-21- 

units subject to the trust, if the cestuis qui trustents 
so demand and tender the price which said trust managers 
paid for such certificates. ( Rankin v. Barcroft & Co. , 
114 111, 441; Bogert on Trusts and Trustees, vol, 3, sec. 
485; gootten v. Wootten, 151 F. (2) 147.) 

For the reasons stated herein the decree of the 
Superior Court of Cook County is reversed and the cause 
remanded with directions that a decree be entered in 
accordance with the views herein expressed. 



REVERSED AND REMANDED WITH 

DIRECTIONS. 



Friend and Scanlan, JJ., concur. 



* 



44272 

R. L. FELTINTON, assignee of 
JOHN W.. F. SMITH, successor 
receiver of the Chicago Bank 
of Commerce, 

Appellee, 

v. 

J OSEPHINE R ONGETTI , 




APPEAL FROM MUNICIPAL 
COURT OF CHICAGO. 

3 37I.A. 383 



Appellant. 

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION 
OF THE COURT. 

This is a scire facias proceeding instituted in the 
Municipal Court of Chicago to revive a judgment by confession 
for $1857.50, entered in said court on September 21, 1933. 
The defendant, Josephine Rongetti, was personally served 
with summons in the revival proceeding within apt time but, 
having failed to appear on the return day, March 24, 1947,. 
she was defaulted for want of appearance and a judgment was 
entered on said date reviving the judgment by confession as 
of the date of its rendition. On July 9, 1947, which was 
more than 100 days after the judgment was entered in the 
revival proceeding, defendant filed and presented a notion, 
supported by her verified petition, to vacate said judgment 
and for leave to appear and defend against plaintiff's claim 
for the revival of the judgment by confession. The trial 
court entered an order denying defendant's motion to vacate 
and she appeals from said order. 

Defendant's petition to vacate alleged in substance 
that on September 21, 1933, Alfred K. Foreman, receiver of 
the Chicago Bank of Commerce, procured a judgment by con- 
fession for $1857.50 against herj that said judgment by 
confession was entered upon a promissory note for $1500, 



dated June 24, 1931* which note was secured by a trust deed 
conveying two unimproved lots to the Union Bank of Chicago, 
as trusteej that said note purports to bear the signature of 
defendant as the naker thereof but that such signature "is 
not that of defendant but is a forgery", as is her purported 
signature en the trust deed; that "knowledge that the sig- 
nature on said promissory note is a forgery cane to your 
petitioner within the past two weeks, and your petitioner 
thereupon secured the services of her present counsel to 
prepare and present her petition herein"; and that "execu- 
tion upon the aforesaid judgment by confession was issued 
on September 26, 1933, but was never served on petitioner, 
and was returned no part satisfied on December 26, 1933." 

The petition to vacate then alleged that the judg- 
ment by confession was assigned by John 7/. F. Smith, suc- 
cessor receiver of the Chicago Bank of Commerce, to R. L. 
Feltinton on February 4, 1947 and that such assignment was 
filed herein on March 11, 1947 ; that "said assignment is 
upon its face invalid, it not running from the original 
plaintiff herein, nor showing any authority in John W. F. 
Smith, the purported assignor, to make said assignment"; 
and that on March 12, 1947, R. L. Feltinton, as assignee 
of John W. F, Smith, successor receiver of the Chicago Bank 
of Commerce, instituted this proceeding against defendant to 
revive the judgment by confession for $1857.50. 

It was further alleged that "summons in said pro- 
ceedings issued on March 12, 1947, returnable March 24, 1947, 
and was served upon defendant therein on March 20, 1947"; 



-3- 

that "on said March 24, 1947, defendant was defaulted, and 
judgment was entered herein against your petitioner as de- 
fendant for $1857.50, with interest thereon from September 
21, 19 33 > and costs of both proceedings"; and that "upon 
being served with summons in said revival proceedings, your 
petitioner consulted Harry J. Rosenzweig, an attorney, to 
look into the matter and advise her." 

The petition to vacate then set forth in considerable 
detail defendant's explanation of her failure to appear and 
defend against plaintiff's claim for the revival of the judg- 
ment and of her delay in filing said petition to vacate and 
such explanation concluded with the averment that on June 9j 
1947, or shortly thereafter, Attorney Harry J. Rosenzweig 
"escorted her to the office of the clerk of the Municipal 
Court of Chicago, where Mr. Rosenzweig obtained the files 
in this cause and exhibited to her the photostat of said 
mortgage note therein appearing as an exhibit, and thus for 
the first time fshe] saw the signature purportedly hers 
thereon appearing as maker of said note, and noted that 
said signature was not her genuine signature but was a 
forgery." 

Defendant's petition prayed that the judgment of 
revival be vacated and that she be granted leave to appear 
and defend against plaintiff's statement of claim filed in 
the revival proceeding. 

Defendant contends that "a judgment by confession 
against a defendant, based on a forgery, is unauthorized and 
a nullity" and "nay not be revived." This contention is 



-4- 

misleading and it does not contain a correct statement of 

the law applicable to this case. 

Plaintiff having filed no answer to defendant's peti- 
tion to vacate, all of the well pleaded material facts set 
forth therein must be taken as true in considering said 
petition and the relief sought therein. 

If an attack is made on a judgment by confession 
itself on the ground that it is based on a note that is 
admittedly forged, the law is settled that such a judgment 
is a nullity and may be set aside on motion, because of 
the court's lack of jurisdiction to enter it. ( Handley 
v. Wilson , 242 111. App. 66.) But an entirely different 
situation is presented here. Although the validity of the 
judgment by confession had not been challenged on any 
ground prior to the entry of the revival judgment, it is 
asserted in effect that defendant has the right to challenge 
its validity indirectly by her motion to vacate the revival 
judgment by showing that her signature was forged to the 
note. In our opinion, she has no such right. In defend- 
ant's brief her motion to vacate the revival judgment is 
treated as if the relief sought by said motion was to set 
aside the judgment by confession but it cannot be so 
treated. 

The law applicable to the defenses available in a pro- 
ceeding to revive a judgment is clearly stated in Bank of Eau 
claire v. Re ed. 232 111. 238. There the court said at p. 240: 

"The only question to be determined in a proceeding by 
scire facia s to revive a judgment is whether the plaintiff has 
a right, as"~against the defendant, to have the judgment exe- 
cuted. That rule was stated in Smith v . Stevens , 133 111. 1°3> 
and in connection with the rule the court quoted from Dowling 
v. McGregor , 91 Pa. St. 410, as follows: 'The only defense 



-5- 



in the trial of the scire facias on a judgment is a denial 
of the existence r>f the judgment or proof of a subsequent 
satisfaction or discharge thereof.' The defenses available, 
and which go to the plaintiff's right, as against the de- 
fendant, to have the judgment executed, are, that there is 
nn such record, or that the judgment has been paid or re- 
leased, or there has been an accord and satisfaction. The 
defendant, under the plea of nul tiel record, may show the 
judgment to be void for want f jurisdiction, if that fact 
appears from an inspection of the record, but he cannot 
attack it collaterally by contradicting the record. (23 
Cyc. 1457.) A plea to a writ of scire facias to revive a 
judgment denying service of process is a collateral attack 
on the judgment, and the defendant is not entitled to make 
such an attack by evidence aliunde against a record which 
shows valid service." 

It will be noted that the petition to vacate did not 
allege any of the defenses enumerated in the Reed case, 
which are available to a defendant in a proceeding by s cire 
facias to revive a judgment. While, under the law as stated 
in the Reed case, the defendant might show that the judgment 
sought to be revived herein was void for want of jurisdic- 
tion, if that fact appears from an inspection of the record, 
she is not entitled to make a collateral attack on the judg- 
ment by confession by evidence aliunde showing that her sig- 
nature was forged on the note upon which it was confessed, 
as against the record showing a valid warrant of attorney 
to confess judgment. 

In our opinion, a judgment by confession may be re- 
vived the same as any other ordinary judgment. An inspection 
of the record shows that a verified statement of claim was 
filed in the Municipal Ccurt of Chicago by the receiver of 
the Chicago Bank of Commerce against Josephine Rongetti on 
September 21, 1933. Appended thereto is an affidavit both as 
to the execution of the note and as to plaintiff's claim. 
This affidavit was made and verified by one Howard D. Moses as 



-6- 

the duly authorized agent of the receiver of the Chicago Bank 
of Commerce. It stated in part that "the signature to said 
promissory note and power of attorney thereto attached is the 
genuine signature of said defendant; that said promissory note 
was duly executed by said defendant." Attached to the state- 
ment of claim is a cognovit signed by Thomas S. Hogan, as de- 
fendant's attorney, admitting plaintiff's right to recover on 
the note and an order signed by Judge Bonelli of the Municipal 
Court of Chicago, dated September 21, 1933, that judgment be 

entered for the plaintiff and against the defendant for 

and 
$1857.50 a nd costs/execution to issue therefor. A copy of 

the promissory note purporting to be signed by Josephine 

Rongetti is also attached to the statement of claim. At 

the bottom of said note is the legend: 

"This principal note has been identified with the 
trust deed securing it under Register No...... 

Union Bank of Chicago as Trustee 
By 0. G. Nardi 

Secretary." 

It appears from the foregoing record of the judgment 
by confession that said judgment was not void on its fate 
for want of jurisdiction of defendant's person and, as held 
in the Reed case, she cannot attack it collaterally by con- 
tradicting said record. 

While it must be considered as true, as alleged by 
defendant, that she had no knowledge of the existence of the 
judgment by confession until more than 13 years after its 
entry and that it was therefore impossible for her to chal- 
lenge its validity during said period, it is also truo that if 
she and her agent, her then attorney, had exercised even the 



-7- 

slightest diligence, they could have learned of its existence 
on March 20, 1947, when defendant was served with summons in 
the revival proceeding. It was not too late then to have the 
judgment by confession set aside upon notion, if it was void, 
as defendant now claims, since a void judgment may be vacated 
at any time and the revival proceeding could have been stayed, 
if necessary, until there was a final determination on the 
motion challenging said judgment by confession as being void 
for want of jurisdiction. 

Defendant also contends that "plaintiff's statement 
of claim shows on its face that he is not entitled to recover 
as assignee of the judgment by confession, where the assign- 
ment does not run from the original plaintiff and where 
neither the assignment nor statement of claim alleges any 
authority in the receiver to sell and assign the judgment." 

Section 22 of the Civil Practice Act (par. 146, chap. 

110, 111. Rev. Stat. 1947) provides in part as follows: 

"The assignee and owner of a ncnnegotiablie chose in 
action nay sue thereon in his own name, and he shall in his 
pleading on oath, allege that he is the actual bona fide 
owner thereof, and set forth how and when he acquired title; 

The verified statement of claim in the revival pro- 
ceeding alleged in part that "R. L. Feltinton is the actual 
bona fide owner of the within judgment having acquired title 
thereto by a written assignment thereof from John W. F. Smith 
as successor receiver of Chicago Bank of Commerce, dated 
February 4, 1947, which assignment was duly filed with the 
Clerk of the Municipal Court of Chicago on March 11, 1947." 

These allegations, in our opinion, are sufficient to 
comply with section 22 of the Civil Practice Act. In any 



~8~ 

event, if defendant desired to contest the validity of the 

assignment SSESL or the authority of the assignor to make sane, 

it was incumbent upon her to comply with section 35 (2) of 

the Civil Practice Act (par. 159, chap. 110, 111. Rev. Stat c 

1947) prior to the entry of the revival judgment, which 

section is in part as follows: 

"The allegation rf the execution or assignment of 
any instrument in writing shall be deemed to be admitted 
unless denied by a pleading verified by oath, unless such 
verification is excused by the court," 

Defendant, having been served with summons in the 
revival proceeding within apt time and having failed to 
comply with section 35 (2) of the Civil Practice Act prior 
to the entry of the revival judgment, must be held to have 
admitted the propriety of the assignment of the judgment by 
confession cf September 21, I933 to R. L. Feltinton, the 
plaintiff herein. 

Defendant's petition to vacate shows on its face that 
she was guilty of gross negligence in failing to file her 
appearance in the revival proceeding. It will be recalled 
that she was personally served with summons in said proceed- 
ing on March 20, 1947, same being returnable on March 24^ 
I947, and that on the day she received the summons she took 
it and a copy of plaintiff's statement of claim, which was 
attached thereto, to her then attorney. Said statement of 
claim did not aver that the judgment sought to be revived was 
had by confession on a note but it did refer to the case in 
which said judgment was entered by its Municipal court number. 
The attorney told her at that time that he would look into the 
matter and advise her. 



-9- 

Instead of examining the Municipal court files on 
March 20, 1947, as he should have done, to ascertain the 
identity of the note upon which the judgment was confessed, 
the attorney, according to the petition to vacate, embarked 
on a rather protracted investigation, in which he was later 
aided by defendant, to ascertain the identity of the note. 
When this wholly unnecessary investigation was concluded on 
June 9, 1947, which was more than 70 days after the revival 
judgment had been entered, defendant again went to see the 
same attorney, who took her to the office of the clerk of 
the Municipal court, where the files containing a photo- 
static copy of the note were examined. She claims that she 
then discovered for the first time that her purported sig- 
nature on said note was a forgery. The files of the Muni- 
cipal Court in the case in which the judgment by confession 
was entered, including the photostatic copy of the note, 
were just as accessible to defendant and as readily avail- 
able to her for examination on March 20, 1947, when she was 
served with summons in the revival proceeding and turned 
same over to her attorney, as they were on June 9> 1947« 
It clearly appears from the facts alleged in defendant's 
petition to vacate that she and her agent, her then 
attorney, were completely lacking in diligence in per- 
mitting the revival judgment to be entered by default for 
want of her appearance. 

For the reasons stated herein the order of the Muni- 
cipal court of Chicago denying defendant's motion to vacate 
the revival judgment was properly entered and it should be 

and is affirmed. 

AFFIRMED. 

Friend and Scanlan, JJ., concur. 



44399 

PAUL COZZI; 
v. 



£> 



Appellee, 



JOSEPH PIZ20, 

Defendant below. 



SAMUEL A. GILFORD et al., 
Garnishees below. 

On Appeal of SAMUEL A. GILFORD, 
Appellant, 




APPEAL FROM MUNICIPAL 
COURT OF CHICAGO. 

3 37I.A. 384 



MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION 
OF THE COURT. 

Paul Cozzi procured a judgment by confession against 
Joseph Pizzo for $821,32 and costs. An action in garnish- 
ment was brought by Pizzo for the use of Cozzi against Samuel 
A. Gilford and Carl Campise. The garnishment proceeding was 
tried by the court without a jury and separate judgments were 
entered against each of the garnishee defendants for $834*42. 
— Gilford appeals from the judgment entered against him. No 
question is raised on the pleadings. The names of both 
Joseph Pizzo and Charles Pizzo appear on certain documents 
produced in evidence as parties thereto but hereinafter for 
convenience we will refer to Joseph Pizzo only in connection 
with such documents. 

On December 17, 1946 Carl Campise transferred by bill 
of sale to Joseph Pizzo a tavern known as Club Chesterfield 
located at 1015 Belnont avenue, Chicago, Illinois. On the 
same date Pizzo executed a chattel mortgage on the personal 
property contained in the tavern to Gilford to secure a loan 
made by him to Pizzo. Thereafter, Campise entered into an 
arrangement with Pizzo, whereby the former agreed to purchase 






-2~ 

the tavern back from the latter. Pursuant to such arrange- 
ment Campise and Pizzo went to Gilford's office on April 28, 
1947 to consummate the sale of the tavern to Campise. Pizzo 
was at that tine indebted to Cozzi to the extent of $1700, 
evidenced by judgment notes. Gilford, who was in the real 
estate and loan business, prepared all of the documents nec- 
essary to close the deal. These documents were a bill of 
sale and a Bulk Sales affidavit as to the vendor's creditors 
to be executed by Pizzo, a chattel mortgage to Pizzo in the 
sum of $3920.23 on the personal property contained in the 
tavern to be executed by Campise and an assignment of said 
chattel mortgage to Gilford to be executed by Pizzo. Pizzo 
executed the bill of sale conveying the personal property 
contained in the tavern to Campise. Campise executed the 
chattel mortgage on said personal property to Pizzo in the 
sum of $3920,23. Pizzo executed the assignment of said 
mortgage to Gilford. Gilford gave his check for $3420.23 
to Pizzo as payment for the Campise chattel mortgage. This 
check for $3420.23 was then endorsed by Pizzo to Gilford in 
payment of the balance of $3395 due on the chattel mortgage 
from Pizzo to Gilford, theretofore executed on December 17, 
1946. As already stated, Gilford also prepared a Bulk Sales 
affidavit as to the vendor's creditors to be executed by 
~ Pizzo but Cozzi was not included in the creditors listed 
in said affidavit. 

Joseph Pizzo testified that "at the time of the sign- 
ing of the Bulk Sales affidavit, I notified Mr. Gilford and 
Carl Campise that there was a balance of $1700 due to Paul 
Cozzi and that Carl Campise said that ho would pay this debt, 



-3- 

and Samuel A. Gilford said that it would not be necessary to 
include this debt in the Bulk Sales affidavit since this 
would be a personal transaction" and that "Paul Cozzi had no 
notice of the sale." 

Gilford testified that "on April 28, 1947 at the tine 
of the resale of the Club Chesterfield by Joseph Pizzo to 
Carl Canpise, I prepared and drew up at ny office all the 
papers dealing with the transfer of ownership and sale of 
the property known as the Club Chesterfield located at 1015 
Belmont avenue, Chicago, Illinois "3 that "the Bill of Sale 
and Bulk Sales affidavit were executed at ny office on the 
sane day and that the list of creditors shown in the Bulk 
Sales affidavit were listed in accordance with information 
furnished by Joseph Pizzo"; that he "did not know at this 
tine [April 28, 194-7] that Paul Cozzi was a creditor of 
Joseph Pizzo"; and that the chattel mortgage frcn Canpise 
to Pizzo, v/hich was assigned to him (Gilford) on April 28, 
1947, was paid in full on August 14, 1947, "when Carl Canpise 
again resold the Club Chesterfield." 

Canpise testified that "Pizzo did not make any mention 
of the Paul Cozzi debt" when the deal was closed in Gilford's 
office and he (Pizzo) signed the Bulk Sales affidavit. 

Hereinafter Cozzi will be referred to as plaintiff, 
the vendor Pizzo as defendant and appellant Gilford as 
garnishee. 

Plaintiff predicates his right to recover from the 
garnishee solely up-n Section 1 of the Bulk Sales Act (par. 
78, chap. 121-1/2, 111. Rev. Stat. 1945), which prior to its 
amendment, which became effective July 21, 1947, provided 



-4- 

as follows: 

"That the sale, transfer, or assignment in bulk of 
the major part or the whole of a stock of merchandise, or 
merchandise and fixtures or other goods and chattels of 
the vendor's business, otherwise than in the ordinary 
course of trade and in the regular and. usual prosecution 
of the vendor's business shall be fraudulent and void as 
against the creditors of the said vendor, unless the said 
vendee shall, in good faith, at least five (5) days before 
the consummation of such sale, transfer or assignment demand 
ana receive from the vendor a written statement under oath 
of the vendor or a duly authorized agent of the vendor hav- 
ing knowledge of the facts, containing a full, accurate 
and. complete list of the creditors of the vendor, their 
addresses and the amounts owing to each as near as may be 
ascertained and if there be no creditors a written state- 
ment under oath to that effects and unless the said vendee 
shall at least five days before taking possession of said 
goods and chattels and at least five days before the pay- 
ment or delivery of the purchase price, or consideration of 
[or] any evidence rvg indebtedness therefor, in good faith, 
deliver or cause to be delivered or send or cause to be sent 
personally or by registered letter properly stamped, di- 
rected and addressed, a notice in writing to each of the 
creditors of the vendor named in the said statement or of 
whom the said vendee shall have knowledge, of the proposed 
purchase by him of the said goods and chattels and of the 
price, terms and conditions of such sale * * *," 

It is undisputed that the sale involved herein was a 
bulk sale as defined in the f ■ regoing section of the Bulk 
Sales Act and it will be noted that the duty of complying 
with the requirements specified in said section is imposed 
upon the vendee . 

The only real question presented for our determination 
is whether the Bulk Sales Act is applicable to a chattel 
mortgage. 

We will first consider what occurred in reference to 
the Bulk Sales affidavit at the time the sale was consummated 
in the office of the garnishee. It will be recalled that 
Pizzo, the vendor, testified that when he was signing said 
affidavit he noticed that plaintiff was omitted from the 
list of his creditors contained therein and that he then 



-5- 

apprised b^th the garnishee and the vendee that he was in- 
debted to plaintiff in the sun of $1700. The garnishee and 
the vendee denied the vendor's testimony in this regard and 
the garnishee testified further that the list of creditors 
contained in the affidavit was furnished by the vendor and 
that plaintiff was not included in said list. However, even 
though it be assumed that the testimony of the vendor was 
true, the fact that Cozzi was not included in the list of 
the vender's creditors contained in the affidavit could not 
possibly impose any liability under the Bulk Sales Act upon 
said garnishee as a chattel mortgagee. If, as plaintiff con- 
tends the garnishee was guilty of actual fraud against him 
in connection with the Bulk Sales Affidavit, it may well be 
that plaintiff has a right of action against him that may 
be asserted in some appropriate proceeding but the law is 
settled in this state that the Bulk Sales Act is not appli- 
cable to a mortgagee under a chattel mortgage. Since the 
Bulk Sales Act is in derogation of the common law and penal 
in nature, it must be strictly construed. ( Coon v . Dos s. 
36l 111. 515} I n Re George Se to n Thompson Co. . 297 Fed. 934; 
Snead Co.. Inc. v. J ohnson. Inc .. 262 111. App. 385} McConnell 
v. Brace-Beluche & Co ., 264 111. App. 72; and Midland O il Co.. 
v. Packers Motor T ra nsport, Inc .. 277 111. App. 451.) Only 
the persons contemplated by the act and designated therein 
are subject to its restrictions and are entitled to its 
benefits. (37 Corpus Juris S.j sec. 479, P. 1331.) The 
only persons within the contemplation of the Bulk Sales Act 
and designated therein are the vendor and his creditors and 
the vendee. In In Re Geo r ge Seton Thomp son Co., 297 Fed. 



-6- 

934, decided in 1924, the Circuit Court of Appeals of the 

Seventh Circuit, in holding that the Bulk Sales Act of 

Illinois was not applicable to chattel mortgages, said 

at p. 937: 

"While the question as to whether the transfer by 
means of a chattel mortgage comes within the provisions 
of the Bulk Sales Act has not, so far as we are informed, 
been determined by the Illinois courts, there are such 
fundamental differences between a conveyance by which a 
vendor absolutely divests himself of the title to his 
property and a conveyance by a chattel mortgage which 
carries with it the right to repay the c nsideration and 
cancel the transaction that it seems improbable that, if 
it had been any part of the legislative intent to include 
chattel mortgages within the prohibition contained in the 
act, the Legislature would have included chattel mortgages 
by name or by some other designation that would have 
afforded some means of ascertaining such legislative 
intent." 

In laity v. Sc hoenholz, 323 111. 232, decided in 
1926, the curt held that the Bulk Sales Act does not apply 
to chattel mortgages, inasmuch as a chattel mortgage is not 
a sale or transfer within the meaning of said act, as the 
relationship of the parties is merely that of debtor and 
creditor until foreclosure f the mortgage and the posses- 
sion remains in the mortgagor subject to the mortgagee's 
lien c 

Disregarding the foregoing authorities, plaintiff 
insists that the Bulk Sales Act is applicable to chattel 
mortgages and contends that "garnishee defendant Gilford's 
liability to the plaintiff, Cozzi, is the statutory lia- 
bility imposed by the Bulk Sales Act." No authority has 
been or could be cited to support plaintiff's position in 
this regard. Nevertheless, an extensive argument is made 
in plaintiff's brief in an attempt to support it. This 
argument is replete with charges that the garnishee was 




~7- 

guilty of fraudulent conduct in practically every phase of 
the transaction that had to d- with the closing of the deal 
for the sale of the tavern and that consequently his chattel 
mortgage was vrid as to plaintiff. It would serve no useful 
purpose t( discuss those charges in detail, inasmuch as 
plaintiff's position is summarized as follows at the con- 
clusion of the argument in his brief: 

"The garnishee defendant, Samuel A. Gilford, as we 
have shown, was the vendee of the chattel mortgage, from 
Carl Campise to Joseph and Charles Pizzo for $3920.23 
assigned by said Pizzos to him * * - ;; -, This mortgage and 
the assignment thereof by the Pizzos to the garnishee 
defendant Gilford were fraudulent and void as to the 
plaintiff, Paul Cozzi, under the Bulk Gales Act, for failure 
of the garnishee defendant Gilford to give or cause to be 
given to the plaintiff and the other creditors of Joseph 
Pizzo the notice required by the Bulk Sales Act. Garnishee 
defendant, Samuel A. Gilford, on August 14, 1947, received 
and converted the proceeds of this fraudulent and void 
mortgage." 

This summary demonstrates beyond question that 
plaintiff's position is untenable. So far as the record 
discloses, the chattel mortgage from the vendee to the 
vendor and the latter 's assignment thereof to the garnishee 
were in all respects valid. It will be noted that the only 
reason given for the statement in the foregoing summary that 
said chattel mortgage and the assignment thereof were 
"fraudulent and void as to the plaintiff, Paul Cozzi, under 
the Bulk Sales Act" was that the garnishee as chattel mort- 



-8~ 

gagee did not give or cause to be given "to the plaintiff 
and the other creditors of J~seph Pizzo the notice required 
by the Bulk Sales Act," As already shown, the Bulk Sales 
Act is not applicable to chattel mortgages and a chattel 
mortgagee is under no duty to the creditors of the vendor 
to comply with the requirements of said act. In answer to 
plaintiff's statement that the garnishee "received and con- 
verted the proceeds of this fraudulent and void mortgage", 
it is sufficient to say that the chattel mortgage was not 
fraudulent and void and that the garnishee had the right 
under the law to receive full payment of same. 

For the reasons stated herein we are impelled to 
hold that the trial court erred in entering the judgment 
appealed from. Therefore, the judgment of the Municipal 
Court of Chicago against Samuel A, Gilford, as garnishee, 
must be and it is reversed, 

REVERSED, 

^riend and Scanlan, JJ., concur* 




44582 

PEOPLE OF THE STATE OF ILLINOIS, ) 

Appellant, ) 

) APPEAL FROM CRIMINAL 
v. ) 

) COURT, COOK COUNTY. 
WILBUR WILLIAMS, ) 

Appellee. 3 371X385 

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE! OPINION 
OF THE COURT. 

On September 23, 1947 Wilbur Williams filed a nation 
in the nature of a writ of error coram nobis in the Criminal 
Court of Conk County under Section 72 of the Civil Practice 
Act to recall, annul and set aside three judgments of said 
court under which he was sentenced to the Illinois State 
Penitentiary. Pursuant to a hearing on defendant's petition 
filed in support of said motion and the answer thereto of 
the state's attorney, the trial court entered an order de- 
claring said judgments "to be a nullity, and of no force 
and effect" and setting aside "all orders entered subsequent 
thereto," The State appeals from said order. Hereinafter 
Wilbur Williams will be referred to as the defendant. 

It appears from defendant's petition filed in support 
of his motion and the answer of the state's attorney to said 
petition that on January 17, 1934 defendant was adjudged to 
be feeble-minded by one of the judges of the Municipal C^urt 
of Chicago and committed to the Dixon State School and Colrny 
for the feeble-minded at Dixon, Illinois; that after a hear- 
ing in the Municipal Court of Chicago he was released on 
parole from said Institution on January 28, 1935 without 
having been judicially restored to reason; that thereafter 
three indictments were returned against him in the Criminal 
Court of Cook County charging him with armed robbery; that 






-2- 

when he was tried on such indictments he was represented by- 
counsel; that after a verdict of guilty had been returned 
upon his trial on indictment No, 76350, he entered a plea of 
guilty to each of the other indictments) No* 76361 and 
No. 76363; that judgments were entered in the Criminal Court 
of Co-k County by the Honorable D. J. Normoyle, the trial 
judge, on said verdict and pleas of guilty and defendant was 
sentenced on October 2, 1935 to a term of from one year to 
life in the Illinois State Penitentiary in each case, the 
sentences to run concurrently; that neither defendant ncr 
his counsel apprised Judge Normoyle either prior to or during 
the course of any of his three trials that he had theretofore 
been adjudged to be feeble-minded by the Municipal Court of 
Chicago on January 17, 1934$ that Thomas J. Courtney repre- 
sented the People of the State of Illinois as state's attor- 
ney both at the time of the hearing in the Municipal Court of 
Chicago rx n January 17, 1934, when the defendant was adjudged 
to be feeble-minded, and on October 2, 1935* when he was 
tried and convicted in the Criminal Court of Cook County on 
the aforesaid indictments charging him with armed robbery; 
and that defendant recovered his reason on April 8, 194-7. As 
heretofore shown, defendant instituted this proceeding on 
September 23, 1947, 

The state urges three grounds for reversal, the only 
one of which we deem it necessary to consider is that "the 
duty and responsibility of raising the question as to whether 
a person charged with the c era; 1 s s i <~n of a crime is insane 
rests upon the accused and his counsel." 

Defendant's position as stated in his brief is "(1) 



-3~ 

that the defendant, once having been adjudicated to "be 
feebleminded by a court of competent jurisdiction, con- 
tinued tc be feeble-minded until such time as he shall have 
been restored to reason by a court of competent jurisdiction; 
(2) that not having been restored to reason by a court of 
competent jurisdiction prior to the trial in causes 
Nos. 76350, 7o36l, and 76363, in the Criminal Court of 
Cook County, Illinois, the court was without jurisdiction 
to try him in these causes; and (3) that Thomas J. Courtney, 
having been State's Attorney and having represented the 
People not only in causes Nos, 76350, 7636I, and 76363 in 
the Criminal Court of Cook County l»ut also in Cause No. 
560274 in the Municipal Court of Chicago, Illinois, in 
which latter case the Petitioner Appellee was adjudged to 
be feeble-minded, was bound as an officer of the Criminal 
Court of Cook County, Illinois, tc draw to the attention 
of the Court on Causes Nos. 76350, 7636I, and 76363, the 
fact that Petitioner-Appellee had been adjudged to be 
feeble-minded, and had not been restored to reason, a fact, 
which, had it been brought to the attention of the Court 
would have deprived the Court of jurisdiction to try, con- 
vict, and sentence the Petitioner-Appellee in Causes Nos. 

76350, 76361, and 76363." 

No authority is citsd in support of defendant's 
position. The theory upon which his motion in the nature 
of a writ of error coram nobis is predicated is unsound 
and it was so held, by the Circuit Court of Appeals for 
the Seventh Circuit in the recent case of United States 
gx rel._T.cs tor A. Samman v. Rag en. Warden. 167 Fed. (2d) 

) 



_4~ 

543. In that case Sannan appealed from the denial of his 
application for discharge on a writ of habeas corpus. It 
appears that he was held in custody of the warden of the 
Illinois State Penitentiary for violation of a parole from 
a sentence in 1931 for armed robbery following his convic- 
tion therefor in 1945. The single question presented by 
the petition and the appeal was whether the fact that Saanan 
had been adjudicated insane by a California court and com- 
mitted to an asylum in 1931 and never thereafter legally 
restored to sanity, ipso facto rendered the subsequent con- 
victions and sentences by the Illinois courts null and void 
and entitled Sannan to release fron the warden's custcdy. 
Sannan was represented by counsel in both criminal proceed- 
ings. The fact of his adjudication of insanity was not 
called to the attention of the trial court at any tine 
during the 1931 proceedings and it was not called to its 
attention until after a plea of guilty and discharge of 
the jury in 1945, during the course of a hearing in miti- 
gation, in which Sannan testified at length as to his 
earlier history. Sanr.an contended that the sole question 
was whether he, after having been adjudged insane by a 
court of conpetent jurisdiction in 1931, could enter his 
plea of guilty to an indictment charging him with a crine 
until the issue of whether he was restored to sanity or 
continued insane was determined in sone manner prescribed 
by the statutes of this State. There the court said at 
PP. 545-546: 

"?fe cannot agree with appellant as to the binding 
and conclusive effect of an adjudicati on of insanity. We 
have f ound no case, even at common law, holding that .an 



-5- 

adjudication of .insanity til . some other court, at .some earlier 
tine, .coUld be set up by collateral proceedin g w here the 
earlier adjudication was not eve n cal l ed t o" the attention 

of_the__cqurt_ i _ Nor _do we fiJid any case where such a prior 

ad" .j u dicat ion wa s" re li ed up on as conclusive proof of insan i ty_ 
either as of the time of the commission of the brime or of 
the trial thereof. In facty the rule appears to be that a 
prior adjudication is" on ly p rima facie, a nd not co nclusive 
evidence of criminal irrespj 'nsibi lity. See 7 A.L.H* Anno- 
tati on, 568. " 68 A.L.R, Annotati on, 131 0. 

"Illinois has, by statute, provided adequate means 
for safeguarding the rights of insane persons charged with 
crime. The portion of the statute here applicable provides: 

"'An insane person, without lucid intervals, shall 
not be f rund guilty of any crime or misdemeanor with which 
he may be charged: Provided, the act so charged as criminal 
shall have been committed in the condition of insanity. If, 
upon the trial of a person charged with crime, it shall 
appear from the evidence that the act was committed as 
charged, but that, at the time of committing the same, the 
person so charged was insane, the jury shall so find by 
their verdict, and by their verdict shall further find 
whether such person has or has not entirely and permanently 
recovered from such insanity; and in case the jury shall 
find such person has not entirely and permanently recovered 
from such insanity, the court shall commit such person to 
the Department of Public Vifelfare. * * *» Snith-Hurd Anno. 
St. Ch". 38, section 592. 

"This means that the sanity or insanity of a person 
charged with the commission of a crime shall be determined 
by a jury in the court where the cause is pending. People 
v. Howe . 375 HI. 130, 30 N.E. 2d. 733. Illinois courts 
have uniformly held that the duty and responsibility of 
raising the question rests upon the accused and his counsel. 
People__v^ Haupris, 396 111. 208, 71 N.E. 2d, 68; People v. 



xii r evjjxs v. DQ^^i t ■ : -7_) -LJLX. cj.w, j. w i..j-t» _j^~, ->-~-j ------ 

'It has long been the law in this State that every man is 
presumed to be sane until the contrary is shown. In order 
to entitle the accused to an acquittal on the ground of 
insanity, this legal presumption must be overcome by evi- 
dence tending tc prove insanity which is sufficient to 
raise a reasonable doubt of the sanity of the accused at 
the time of the commission of the act for which he is 
sought to be held accountable.' The courts have also in- 
dicated that to rely on prior adjudication, it must be 
shown that the insanity was of a permanent or continuing 
type. People v. Varecha. 353 HI. 52, 186 N.E. 607. PcoEie 
v. Ma yna~rd .~W 111. 422, 179 N.E. 833, 836. In the latter 
case the Illinois court said, 'Whether the presumption 
arising out of an adjudication of insanity * * * has been 
overcome was a question of fact requiring evidence." 
(Italics ours.) 



-fa- 
in People v. rierstheimer . 401 111. 260 (advance 
sheet No. 4) our Supreme court, after quoting the italicized 
portion of the opinion in the S amman case, said at p. 280: 
"The quotation from the opinion of the Federal Circuit Court 
of Appeals is in accord with the principles announced by 
this court in People v. Varecha (353 111, 52, 186 N.E. 607), 
and followed in the present case." In the Nierstheimer 
case the court went on to say that a prior adjudication of 
feeble-mindedness is prima facie rather than conclusive 
evidence of criminal irresponsibility. It was then said 
at p. 281: 

"numerous decisions state another familiar rule 
that the duty and responsibility of raising the question 
of sanity or insanity of a person charged with crime rests 
upon the accused and his counsel. ( Peop le v . Haupris , 396 
111. 208; Peopl e v . War ner. 390 111. 384.) ' In People 
v. Bacon . 293 111. 210, the court said, 'it has long been 
the law in this State that every man is presumed to be sane 
until the contrary is shown.'" 

In view of the foregoing decisions it would serve no 
useful purpose to discuss defendant's contention that "the 
States Attorney is bound to bring the disability of the 
defendant to the attention of the court, so that a feeble- 
minded person will not be placed on trial." 

Since a prior adjudication that defendant was feeble- 
minded was prima facie rather than conclusive evidence of 
his criminal irresponsibility and since the duty of raising 
the question as to whether cr not he was mentally incompe- 
tent rested upon him and his counsel and neither of them ap- 
prised the court upon the trial on the indictments charging 
him with armed robbery that defendant had theretofore been 
adjudged to be feeble-minded, it must be held that, even 



though the conviction and sentence of defendant in 1935 
occurred only about 20 months after he had been adjudged 
to be feeble-minded, that fact nay not be availed of by 
a collateral attack on the judgments under which he was 
committed to the penitentiary. 

For the reasons stated herein the order of the 
Criminal Court of Cork County is reversed. 

REVERSED. 

Friend and Scanlan, JJ., concur* 



/ 



*/ 






44578 



LIBERTY NATIONAL BANK OF CHICAGO, 
a national banking association, 
as Trustee under Trust Deed dated 
September 5, 1944, and known as 
Trust No. 5406, 

Appellant, 



JOSEPH POLLACK, trading as APCO MFG. 
Co., Not Inc., 

Aooellee. 



IM 






3 371X385 






APPEAL FROM 
CIRCUIT COURT, 
COOK COUNTY. 



MR. PRESIDING JUSTICE FEINBERG DELIVERED THE OPINION OF 
THE COURT. 

Plaintiff brought this forcible detainer action 

against defendant. There was a trial without a jury and a 



finding and judgment for defendant, from which plaintiff 
appeals. 

It appears without dispute that defendant and his 
sister, Marion Pollack, were partners trading as Apco Mfg. Co., 
and obtained leases on the premises in question subsequently- 
acquired by plaintiff as trustee, as well as a lease on adjoin- 
ing property. The three separate parcels occupied by defendant 
had been previously occupied as one unit by the Fair Store. 
Defendant occupied the premises and had the leases in 
question before plaintiff secured title under the trust 
conveyance. On April 6, 1946, the partnership was incorporated 
under the name of .Aoco Mfg. Co., and the assets of the partner- 
ship were assigned to .the corporation. The same business was 
conducted, and the same interests represented in the partner- 
ship were held by the defendant and his sister in the 
corporation. On November 30, 1945, fifteen months after 
defendant .vent -into possession of the premises, Charles and 
Hyman Slivaick purchased the premises in question and conveyed 



/ 









2. 

the same to the Liberty National Bank of Chicago, as trustee, 
in which trust the Slivnicks we^e the only beneficiaries. On 
December 21, 1945, twenty-one days after the Slivnicks 
purchased the property and conveyed the same }&. trust to 
plaintiff, this forcible detainer action was brought. 
The t^ust agreement provided: 

"It is understood and agreed by the parties 
hereto and by any person who may hereafter 
become a party hereto, that said Liberty National 
Bank of Chicago will deal with said real estate 
only when authoyjfced to do so in writing and that 
it will (notwithstanding any change in the 
beneficiary or beneficiaries hereunder, unless 
otherwise directed in writing by the beneficiaries) 
on the written direction of Charles Slivnick and 
Hyman Slivnick or on the written direction of 
such person or persons as may be beneficiary 
or beneficiaries at the time, make deeds for, 
or otherwise deal with the title to said real 
estate, * * * said Trustee shall have no duty 
in respect to the management o^ control of said 
property or in respect to the payment, of ..taxes _or 
assessments or in respect to insurance, 1 it igat ion 
or otherwise, except on written direction as 
hereinabove provided ." (Italics ou^s.) 



Paragraph 2 of the lease provided: 



"Said premises shall not be sub-let in whole oi 
in pa^t to any person othe^ than Lessee, and 
Lessee shall not assign this lease without, in 
each case, the consent in writing of Lessor 
first had and obtained; * * *." 

The fifth paragraph of the lease provided: 



"Lessee shall not cause or permit any waste, 
misuse or neglect of the water, or of the water, 
gas or electric fixtures." 



The eighth paragraph of the lease in question 
contained this provision: 



"Lessee * * * shall make no changes or alterations 
in the premises by the erection of partitions * * * 
without the consent in writing of Lessor." 



'V 



\ 






3. 

The^e are many breaches of the lea^e claimed as a basis 
for forfeiture. The evidence clearly discloses that 
practically all of the alleged breaches occurred before 
plaintiff acquired the leases in question, and existed and 
were cheated with the knowledge and consent of the prior 
owners. Defendant being in possession, plaintiff acquired 
the property subject to the rights of the parties in 
possession. One of those rights was to insist that there is 
no breach of the leases, since the prior lessors had 
consented to the matters complained of by plaintiff. One 
of the alleged breaches did occur after the acquisition of 
the property by plaintiff. This alleged breach consisted 
of the installation of electrical wiring, necessitating 
certain holes to be made in the walls to make provision 
for conduits, and the tearing out of the old electrical 
wiring. One of the witnesses for plaintiff testified that 
the buildings in question were more than a half century 
old; that the electrical wiring was outmoded; that the 
obsolete wiring constituted a definite fire hazard; that it 
violated the City code. At considerable expense defendant 
installed this new modern wiring, which was approved by 
the City authorities. The performance of this electrical 
work was justified, since the terms of the lease required 
defendant in the conduct of the business and use of the 
premises to comply with all City ordinances. Since the 
latter provision imposed an obligation upon the defendant, 
plaintiff cannot complain that it was done without plain- 
tiff's consent. It could have urged a breach of the lease 
for failure to comply with the fire ordinances of Chicago, 
had defendant neglected to rectify the fire hazard. The law 
will not sanction such inconsistent positions. 



clearly from the evidence that even after 
cne c±aim of the existence of alleged breaches, plaintiff 
received and retained the monthly rental checks, up to and 
including the month of May 1948, when this cause was tried. 
It has been uniformly held that the acceptance of rent, 
after knowledge by the lessor of the alleged existence 
of the breaches of the lease, constitutes a waiver of such 
breach. Arado v. i.laharis , 232 111. App. 282, and '7aukegan 
Times Theatre Corp ,, v. Conrad . 324 111. App. 622. This rule 
is not applicable if the breach be of the continuing type, 
as was involved In Vintaloro v. Pappas , 310 111. 115, relied 
upon by plaintiff but distinguished in Arado v. I.laharis . 
Plaintiff argues that the breaches complained of were 
continuing breaches. It points to the transfer of the assets 
of the partnership to a corporation and the occupancy of the 
premises by the corporation, in violation of the second 
paragraph of the lease against assignment or subleasing 
without the consent of the lessor. 1e have already pointed 
out that the corporate entity was controlled by this defen- 
dant and his sister, whose interests in the corporation were 
the same as in the partnership, and exactly the same business 
was conducted under the corporation. Factually, the instant 
case is not unlike Earp v. Schmitz, 334 111. App. 382, where 
it was held it did not constitute a breach of a similar 
covenant in a lease. To the same effect is P.eacock v. Feltman, 
243 111. App. 235. 

Another reason why plaintiff cannot maintain this 
action is that the quoted provision of the t^ust agreement 
expressly precludes the trustee from exercising any right 
to deal with the property by litigation or otherwise, and 



5. 

it shall have no duty in respect to the management and 
control of the same except upon the written direction of 
Charles Slivnick and Hyman Slivnick. There being no such 
written direction appearing of record "before the institu- 
tion of the suit, plaintiff, as trustee, had no right to 
institute the action. Pickering v. Lomax, 120 111. 289; 
Liberty Mat. Bank v. Koste^lltz , 329 111. App. 244; Sh eets 
v. Security First Mortgage C o., 293 111. App. 222; Bogert 
on Trusts and Trustees. Plaintiff relies on Continental 
111. Nat. Bank and Trust Co . v. W indsor Amusement Co . , 
288 111. App. 57, which must be distinguished from the 
cases cited, because in the latter case the express 
provision in the trust agreement was: "The Trustee is the 
sole owner of the real estate held by it hereunder and 
so far as the public is concerned has full power to deal 
with it." Barnett v. Levy , 331 111. App. 181, sited by 
plaintiff, is not in point. 

We have considered the other points raised by plain- 
tiff for reversal of the judgment. *.Te regard them without 

/^/Tvv- 
merit and a discussion of them unnecessary. 

For the reasons indicated the judgment of the Circuit 

Court is affirmed. 

AFFIRMED. 

Tuohy and Niemeyer, J J., concur. 




44704 



CLIFFORD E. FSRNSTROM and 
DORTHEA A. FERNSTROM, ) 

Appellees, ) 

v. ) APPEAL FROM MUNICIPAL 

) COURT OF EVANSTON 
LE7IS J. 'TEST and ELIZABETH M. j 

WEST-'J j 

Appellants* ) 

1 3 37I.A. 386 

MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT. 



Defendants appeal from an adverse Judgment in a 
forcible detainer action brought to ^eove^ possession of 
premises occupied as a family residence. Plaintiffs nave 
not followed the appeal. 

The evidence shows that defendants were in possession 
of the premises as holdover tenants under a lease executed 
November 1, 1941 for the period commencing November 1, 1941 
and expiring September 30, 1942. On May 22, 1948 the then 
owne^ of the property notified defendants by letter that they 
were occupying the premises "as holdover tenant under a 
written lease which expired September 30, 1942" and that the 
"present holdover le .se will not be renewed and that the 
premises must be vacated by September 30, 1948." In July 
1948 the then owners of the premises, and the plaintiffs as 
contract purchasers of same, again notified defendants that 
their lease -rould terminate September 30, 1948. 

It is apparent from these notices that plaintiffs and 
their predecessor in title we^e mistaken as to the effect 
of the holding over by defendants upon the expiration of 
the original lease September 30, 1942. The holding ove~ of 
defendants did not create year to year leases but leases 
for the same period as the original lease, namely eleven 



-2- 

raonths. P^ickett v. Ritter, 16 111, 96. Consequently, 
defendants as holdover tenants were entitled to the 
possession of the premises for the period of eleven months 
from and after March 31, 1948, and plaintiffs could not 
by notice terminate the lease before that time. Heu n v. 
Hanson , 331 111. App. 82. 

The judgment for possession is erroneous and is 
■""eve^sed. 

REVERSED. 



Tuohy, J., concurs. 

Feinb^rg, P. J., took no part, 



44660 



MARIE JUHASZ, 



Appellant, 



PETER HAISAN and CAROLINE 
HAISAN, 

Appellees. 



APPEAL FROM 
MUNICIPAL COUP.T 
OF CHICAGO 



o • 




MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 



From a judgment for the defendants in a forcible 
entry and detainer action heard by a judge of the 
Municipal Court without a jury, this appeal is taken. 
No brief has been filed on behalf of the defendants. 

The undisputed facts establish that on August 4, 
1948 the plaintiff served a written notice on defendants 
that rent was due for the apartment occupied by defendants 
and that unless payment of rent was made on or before the 
expiration of five days the tenancy would be terminated. 
The defendants did not pay or tender the rent within five 
days. Some time later, when the case was called for trial, 
defendant Peter Haisan appealed pro s_e, stating that he 
received the five day notice and did not pay the rent 
because he had been sick. He stated that he was willing 
to pay. The court told defendant Peter Haisan to pay the 
rent and directed that judgment for possession be entered 
in favor of defendants. 

The action of the court in this case is without 
legal sanction. After rent is due the landlord may demand 
payment and notify the tenant in writing that unless payment 
is made within a time specified, not less than five days 



2. 

after service, the lease will be terminated. If the tenant 
shall not, within the time provided, pay the rent due, the 
landlord is entitled to possession. ',7oods v. Soucy , 165 
111. 407, Proceedings unde^ Section 2 of the Forcible 
Entry and Detainer Act (ill. Rev. Stat. 1947, ch. 57, nar. 
2) are purely statutory and the statute must be strictly 
follov/ed. The Biebel Roofing Co., Inc. v. P^itchett, et al , 
373 111. 214. 

The judgment of the Liunicipal Court of Chicago is 
therefore reversed and the cause remanded with directions 
to ente - " judgment in favor of plaintiff. 



REVERSED AND REMANDED 7ITH 

DIRECTIONS. 



Feinberg, P. J., and Niemeyer, J., concur, 



- ■ 
i. 

■ 



44712 

TALI.AN THOLjAS, 

Appellee. 

v« 

JAMES KING, 

Appellant , 





APPEAL FROM MUNICIPAL COURT 
OF CHICAGO. 



3 37I.A. 387 

MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 

From a judgment for possession in favor of plaintiff 
on a verdict of a Municipal Court jury in a forcible entry 
and detainer action, defendant prosecutes this appeal. 

Plaintiff, owner of the premises occupied by several 
tenants, sought possession of the two and one-half room 
apartment occupied by defendant allegedly for the use of 
himself and his family. Defendant contends that the record 
is without evidence to show that plaintiff acted in good 
faith; that plaintiff "is merely attempting to juggle his 
property for profit and does not need or legitimately require 
defendant's premises to live in"; and that in a forcible 
entry and detainer suit the plaintiff must be present in 
open cou^t and testify. Defendant also complains of certain 
rulings and admission of evidence on the part of the trial 
judge. 

The evidence shows that plaintiff purchased the 
premises in question in the year of 1946, and thereafter 
occupied a portion of the same with his wife, seven minor 
children, his stepfather, and brother. The premises consisted 
of a three story house and basement. There were two rooms 
in the basement occupied at the time of this suit by two 
elderly ladies. Plaintiff and his family occupied the first 



**N 



-2- 

floor consisting of four rooms and a bath. They also occupied 

one room on the second floor. Two and one-half rooms on the 

third floor are occupied by another tenant. Defendant 

occupied two and one-half rooms on the second floor front and : " ia<i 

been there for a number of years prior to the purchase and 

occupancy by plaintiff. 

Plaintiff urged on the question of good faith that he 
wished to enlarge the family living quarters by the acquisition 
of defendant's premises which was on a floor where plaintiff's 
family already occupied one room. 

Testimony was offered on behalf of defendant that 
Betty Thomas, plaintiff's wife, told him he would be permitted 
to remain in the premises upon the payment of an additional 
rental, which conversation was denied by Lirs. Thomas. Under 
these circumstances, it was a question of fact for the jury 
to determine whether or not plaintiff was in good faith in 
seeking to acquire the portion of the premises occupied by 
defendant. If the purpose was to secure additional living 
quarters for this large family, then the jury were justified 
in finding plaintiff acted in good faith. We are not 
disposed to interfere with their conclusion. 

Defendant urges that in a forcible entry and detainer 
action it is necessary for the plaintiff to appear in person 
and confront the defendant. Plaintiff's wife was the 
principal witness on behalf of the plaintiff and testified 
substantially to the facts set forth above. There is no 
rule of law which requires the plaintiff under such circum- 
stances to testify in his own behalf. This assignment of 
error is without merit. 



-3- 

The defendant claimed that he was taken by surprise 
at the testimony of Mrs* Thomas to the effect that she had 
served notice of the termination of tenancy upon defendant's 
wife, and he moved to continue the case in order to produce 
his wife in rebuttal. An examination of the affidavit of 
service of the notice of termination of tenancy indicates 
that service was made on defendant by delivering a copy 
at his place of residence to Mrs. James King, defendant's 
wife. Under such circumstances no such surprise was shown 
as to entitle defendant to a continuance, and the trial 
court's ruling was correct. 

Complaint is made of the admission of certain 
evidence. "Te have carefully examined the record and the 
rulings complained of and we find no substantial error in the 
admission or denial of testimony. 

Accordingly, the judgment of the Municipal Court of 
Chicago is affirmed. 

AFFIRMED. 



Niemeyer, J., concurs. 
Feinberg, P* J., took no part, 



44041 

HARRY E. WILLIAMS, 

v. 



Appellee, 



THE NEW YORK CENTRAL RAILROAD 
COMPANY, a corporation, 

Appellant. 




APPEAL FROM SUPERIOR 
COURT, COOK COUNTY. 



3 37I.A. 388 



MR. JUSTICE FRIEND DELIVERED THE- OPINION OF THE- COURT. 

Plaintiff's suit in the Superior Court against the 
New York Central Railroad Company to recover damages for 
personal injuries sustained by him while working as a 
brakeman on one of the company's interstate trains, re- 
sulted in a verdict and judgment for plaintiff in the sum 
of $40,000.00. On review of the case we reached the con- 
clusion that plaintiff's negligence was the sole proximate 
cause of his injuries, that the court should have directed 
a verdict for defendant, and because of its failure so to 
do the judgment of the Superior Court was reversed without 
remandment. Subsequently the Supreme Court of Illinois 
granted leave to appeal, and in the November term 1948 
reversed the judgment here entered and remanded the cause 
with directions to consider the assignment of errors not 
disposed of in its opinion, and either affirm, judgment 
of the trial court or reverse it and remand the cause for 
a new trial. (Docket No. 30845, not yet published.) 

In its opinion the Supreme Court made a detailed 
recital of the facts and the allegations of the pleadings, 
and said that the question presented was "whether there is 
any evidence in the record from which it might reasonably 
be inferred that the defendant was guilty of any one or 
more of the charges of negligence and whether such negligence 



■> :tt 



( ;. ; : ' 



-2- 

proximately caused the injuries complained of." After 
reviewing the several charges made by plaintiff, the 
court concluded that "it cannot be said as a matter of 
law, that the verdict of the jury is without support in 
the evidence," and held in effect that all of the charges 
as to negligence were questions of fact tc be determined 
by the jury. The decision of the Supreme Court disposes 
of the assignment of all errors except the amount of 
damages and the propriety of two instructions. In view 
of our conclusion in our prior opinion that plaintiff's 
negligence was the sole prcximate cause of the accident, 
it was not necessary in that opinion to discuss or con- 
sider these questions. 

From the medical testimony it appears that plaintiff 
sustained a comminuted fracture of the heel bone of the 
left foot. Dr. Pratt, one of the medical witnesses, de- 
scribed it as a "crumpled heel bone ### crushed, mashed," 
Although no fractures were sustained in the right foot, 
it toe was seriously injured. Both Dr. Greenspahn and 
Dr. Speed, witnesses for plaintiff and defendant, respec- 
tively, agreed that although at the time of trie trial 
there was a br-ny fusion of the fracture, the joint re- 
mained frozen and inflexible. It was the opinion of 
Dr. Greenspahn that the condition would be permanent and 
would interfere with the stability of the foot, and that 
there would be periodic swelling of the left ankle. It 

further appears that plaintiff suffered injuries to his 

and 
liack. He was in bed for a month,/had a cast on his leg 



id 



!! i- .!■■'>.. !. „ 



■>■> 



;.rt 



; J . 



. ;f.; '.if: 



-3- 

for twelve weeks. Thereafter he had to use crutches until 
June 1945, some seven months after the accident. Dr. Speed 
had ordered an ankle trace for him which he still wore at 
the time of the trial, and also at that time he used a cane 
to get around. He testified that it was difficult for him 
to stand on his left foot for more than an hour because it 
was still sore and stiff, and he said that his right foot 
also tired. 

At the time of trial plaintiff had lost approximately 
two years in wages. Kis salary in 1944 was $2670.00. Sub- 
sequently there was an increase of approximately 18-1/2 
cents per hour for brakemen and conductors, As a basis 
for determining his income, these figures indicate earnings 
of $3000.00 to $3500.00 a year. It Is fairly certain that 
he will never be able to continue railroading in the posi- 
tion ef brakeman or conductcr, a vocation which he has 
followed exclusively for thirty years. Up to the time of 
\ the trial he had lost upwards of $6000.00 in wages as the 
result of his injuries. Considering his expectancy and the 
usual compulsory retirement age of seventy, his total money 
loss alone would equal the amount of damages awarded him. 
This does not take Into account his pain and suffering and 
the physical handicap resulting from the accident. There 
Is nothing to indicate that the amount of the verdict was 
induced by passion or prejudice, and we think the amount 
awarded plaintiff Is not excessive. 

Criticism Is leveled at plaintiff's instruction No. 
2, which reads as follows: "The Court instructs the jury 



/ 



.0 



."{ 



-4- 

that prior to and on the 23rd day of November, 1944, there 
was in full force and effect certain acts of Congress known 
as the Federal Safety Appliance Acts, Section 11 of which 
provides among other things the following: 'All cars re- 
quiring *-*-* secure running boards shall be equipped with 
such *--** running boards,' You are further instructed that 
if you find from a preponderance of the evidence that the 
car in question was a car requiring a secure running board 
and if you further find from a preponderance of the evi- 
dence tkat said car was hauled or used by defendant on its 
lines without such secure running boards, the said provision 
of the Federal Safety Appliance Act was violated and if you 
further find from the evidence that the failure of defendant 
to so equip said car was the cause, in whole nr in part, of 
the injury to the plaintiff, then ycu should find defendant 
guilty," This instruction required the jury to determine 
whether, under the evidence, car Mo, 291872 was the type of 
car requiring a running beard. The instruction directed the 
attention of the jury to the evidence bearing upon the car 
in question and told them that if they f^und from a pre- 
ponderance of the evidence that it was one requiring a 
running board and if defendant used or hauled the car on 
its lines without a running board, the Safety Appliance 
Act was violated. Since, under the decision of the Supreme 
Court, the question whether the failure to provide a running 
board was the cause of the accident, in whole or in part, was a 
matter for determination by the jury, we think the instruc- 
tion was not improper. 



, ^". - « 



a 



: \ . 



-fr- 
it is further contended that the court erred in 
refusing to give one or more of defendant's refused 
instructions numbered 1, 2, 3 and 4. It was plain- 
tiff's contention that in removing the roof and 
running board from car No. 291872 without an order 
from the Interstate Commerce Commission defendant 
violated sections 11-16 of the Safety Appliance Act. 
The refused instructions 1 to 4 ignore such a violation 
of the act. To give then to the jury would have Intro- 
duced issues that are not in the case, and would have 
had the effect of directing a verdict for defendant on 
questions that are in the case. In view of the con- 
clusions of the Supreme Court it would have been pre- 
judicial to plaintiff to give then. 

For the reasons indicated the judgment of the 
Superior Court nust be affirmed, and it is so ordered. 

Judgment affirmed. 

Sullivan, P. J., and Scanlan, J., ccncur. 



APPELLATE COURT 
STATE OP ILLINOIS 
FOURTH DISTRICT 
February Term A. D. , 1949 










Term No. 49F2 



Agenda No. 4 



In the Matter of the Estate 
of John H. Cope, Deceased. 
D6Y MEADOR, Administrator of 
the Estate of Alice Lavona 
Cope, Deceased, 

Ob jec tor- Appellee, 

LAURA HUGHES, Administratrix 
of the Estate of John H. Cope, 
Deceased, 

Respondent- Appellant. 



Appeal from the 
Circuit Court of 
Wayne County, 
Illinois. 



3 37I.A. 388 



BARDENS, J. 

This case reaches this court on an appeal from 
an order of the Circuit Court sustaining objections to the final 
report of Laura Hughes as administrator of the estate John H. 
Cope, deceased, John H, Cope, a widower, married Alice Lavona 
McConnaughhay, a widow, on May 10, 1925. They lived together as 
man and wife until the death of John H. Cope on February 4, 1946. 
Alice Lavona, who is quite commonly known as "Vona", died eight 
days later. Mrs. Cope left no children but John H. Cope left 
surviving him some children by a former marriage. Laura Hughes, 
a daughter of John H, Cope, was appointed administrator of his 
estate. Doy Meador was appointed administrator of Mrs. Cope's 
estate. The final report of Laura Hughes as administrator was 
filed in the county court in probate and made no provision for 
the payment of any, distributive share to the administrator of the 
estate of Alice Lavona Cope. 

Attached to said final report was a copy of a purported post 
nuptial agreement between ffiohn H. Cope and Vona Cope in which 
each purported to release all claims or interest in the property 
of the other. Objections to said final report were filed by Doy 



-1- 



Meador, administrator of the estate of Alice Lavona Cope, the 
principle contention of the objector being that the purported 
agreement did not bear the genuine signature of Alice L, or Vona 
Cope, The county court over-ruled the objection and appeal was 
had to the Circuit Court of Wayne County, Illinois. The Circuit 
Court sustained the objections and ordered the said Laura Hughes 
as administrator to file a new accounting and final report in 
which ahe should provide for payment of one-third of the net 
assets to the objector. Prom this judgment Laura Hughes as 
administrator, who will be hereinafter referred to as respondent, 
appealed to this court. 

The sole question raised by the pleadings and the evidence 
and by the assignment of error is the genuineness of the 
signature of Vona Cope on respondent's exhibit I, which is the 
purported post nuptial agreement. This purported agreement was 
not found amoung the papers of John H. Cope. However it was 
proven that the home had been broken into before the administrator 
took possession of his papers. At some later time the agreement 
was received through the mail by a sister of Laura Hughes in 
which envelope was also enclosed a note reading as follows: 
"This was found in the barn at sale. 

A friend" 
It was proved that there had been a sale of the personal assets 
of the John H. Cope estate and that this letter was received 
some time after that date. 

None of the witnesses saw the parties sign the agreement 
and therefore the proof of genuineness of signature of Vone Cope 
was necessary. The Respondent introduced into evidence a number 
of exhibits bearing genuine signatures of John H. Cope with 
which we are not particularly concerned since the question is as 
to the genuineness of the signature of Vona Cope. Respondent 
introduced five exhibits, numbers 4, 5, 6, 7, and 8, which were 
song books found in the trunk of Vona Cope after her decease and 
on which exhibits (with the exception of exhibit 8 ) were written 



-2- 



in pencil the name ;, Vona Cope". These were offered as standards 
of comparison. No witness could say who wrote the words "Vona 
Cope" on these exhibits and _thcy are in the record only because 
two non-expert witnesses expressed an opinion that the words 
were in the handwriting of Vona Cope. No effort was made, however, 
to comply with the evidence act to have these exhibits introduced 
as admittedly genuine and the Court in passing upon their 
admission admitted them subject to objections. These exhibits, 
therefore, do not stand before us as admittedly genuine or as 
proved to be genuine to the satisfaction of the lower Court. 

Respondent's exhibit 16, being the marriage license between 
John H. Cope and Alice L. McConnaughhay, was admitted as contain- 
ing the genuine signatures of both parties on the back thereof 
and objector's exhibits 1 and 2, being the deeds executed by 
Alice L McConnaughhay in 1922 and 1924, have been treated as 
genuine signatures. All original exhibits bearing upon the 
question of signatures have been certified and transferred to 
this Court for our examination. 

Both parties agree that the repondent has the burden of 
proof and that this Court will not substitute its judgment for 
that of the trial court unless from an examination of the original 
exhibits together with the whole record, v/e determine that the 
trial court's judgment was against the manifest weight of the 
evidence. 

We have examined the original exhibits and find that the 
purported signature of Vona Cope on respondent's exhibits I is 
in many respects similar to the writing of "Vona Cope" on 
respondent's exhibits 4, 5, 5, and 7, but find the purported 
signature on exhibit I differs in material respects from the 
admittedly genuine signature on respondent's exhibit 16 and the 
proven signatures on the objector's exhibits 1 and 2, We find 
one especially striking dissimilarity between the questioned 
signature and all of the other exhibits mentioned, viz: in the 
other exhibits the letters slant or lean to the right, whereas 



in the questioned signature most of the letters are practically 
vertical to the line underneath. 

There was some evidence in the trial court that John H. Cope 
made statements that a post nuptial agreement had been signed by 
the two parties, but there was also evidence that Vona Cope had 
stated she had never signed any agreement. These statements were 
made out of the presence of the other spouse and therefore seem 
to us to be inconclusive. Prom our examination of the original 
exhibits before lis and from the review of the whole record, we 
can not say that the trial court's finding was against the 
manifest weight of the evidence. The judgment of the lower court 
should therefore be afficmed. 

Judgment affirmed. 

Culbertson, P. J. , and Scheinemen, J., concur. 
Publish abstract only. 




B) 



APR 1 8 1949 



CLIMK OW TH| APPtLLATB C*UMT 

FOUffTM DISTRICT OT »U tK jfS 



-4- 






STATE OF ILLINOIS 
APPELLATE COURT 
FOURTH DISTRICT 
February Term, A.D. 1949 




I? 



\ 









Term No. 49F18 



Agenda No. 13 



J. N. KLEIN, 

Plaintiff -Appellant, 
-vs- 
RICHARD T. O'BRIEN, 

Defendant-Appellee . 



Appeal from the 
Circuit Court of 
Clay County, 
Illinois . 



'- . 



< 

i 



CULBERTSON, P. J. 



This is an appeal from a judgment of the Circuit Courf- 
of Clay County, which resulted from a distress action by J. N t 
KLEIN, Appellant, (hereinafter called the landlord), as 
against RICHARD T. O'BRIEN, Appellee (hereinafter called the 
tenant). The distress action for rent and for damages was 
based upon the failure of the tenant to faithfully perform 
the covenants of a farm lease. 

The action was instituted in the Circuit Court under 
a distress warrant directed to the Sheriff of Clay County to 
levy on the growing crop of wheat and the growing crop of hay 
of the tenant. The distress warrant was levied for $100.00 
in cash rent, one-third of the wheat crop, one-third of the 
wheat straw, one-half of the redtop hay, and one-half of the 
redtop seed, and for "damages of $1,000.00 for tenant's 
failure to faithfully perform the terms of the lease." Two 
individuals, Pearl Slagley and Russell Wires, both filed 
intervening petitions claiming prior liens to the plaintiff of 
$150.00 and $70.12 respectively, for labor performed in 
harvesting part of the wheat crop. The United States of 



- 1 - 



America, through the Farmers' Home Administration, filed an 
intervening petition, claiming a lien prior to that of plain- 
tiff by virtue of a Federal mortgage on the wheat and hay- 
crops, except the landlord's part thereof, but after a hearing 
on the pleadings the intervening petitioner, United States of 
America struck that portion of the petition which claimed a 
lien prior to that of the plaintiff landlord. The tenant was 
a minor, who was farming with the help of a "G-I" loan. 

The cause was heard by the Court, without a jury. 
The Court, in a written order entered after hearing the 
evidence, found that defendant tenant breached the provisions 
of his lease and that plaintiff was authorized to issue and 
levy a distress warrant and that the Sheriff had distrained 
wheat in harvest on 80 acres, and 60 acres of growing redtop. 
The Court further found that the plaintiff landlord had the 
right to complete the harvesting of crops and perform the 
covenants of the lease left unperformed by the tenant, sell 
the crops, pay the expenses necessary to be paid under the 
lease, retain the amount of rent due, and then turn the balance 
over to the mortgagee, Federal Farm Security Administration; 
that defendant tenant sold .154 bushels of wheat at $333.69 
and delivered 60 bushels of wheat to plaintiff landlord's 
bin, and that the total value of the wheat delivered to 
plaintiff was $129.60; that the plaintiff landlord harvested 
and sold wheat of the value of $805.69; and that plaintiff was 
entitled to one-third of the wheat, but was obligated under 
the lease to pay one-third of the machine bill for threshing; 
that the wheat was all combined, and that plaintiff owed 
$190.00 therefor; and that there was due the intervener, Paarl 
Slagley, $120.00; and that of these several amounts which 
aggregate $310.00, plaintiff should be charged with one-third, 
or $103,33, and defendant tenant with $206.67; that the inter- 
vener, Russell Wires was employed by defendant tenant to haul 
wheat and that there was due him $70.12, for which plaintiff 

- 2 - 



was not liable. The Court then struck an account as between 
the parties based on such findings, and further found that 
the redtop grass and seed were harvested by plaintiff landlord 
and plaintiff received his proper share of this crop, and that 
the tenant was not entitled to recover anything in connection 
therewith; and the Court also found that plaintiff was not 
entitled to recover any damages from defendant for failure to 
comply with any of the other conditions of the lease. The 
Court also found that plaintiff was not entitled to a lien 
upon money derived from the balance of the crops raised on 
plaintiff's farms, which items aggregate $893.37 (money paid 
by plaintiff to buy seed wheat, fertilizer, repairs on tractor, 
etc.). The Court then ordered that plaintiff pay the cost 
of the proceeding out of the moneys on hand; that he pay to 
Russell Wires, $70.12; that he pay to Pearl Slagley, $120.00; 
that he pay for the Federal Farm Security Administration, 
$145.71; and that plaintiff retain the balance. 

The plaintiff landlord filed notice of appeal and 
contends that the judgment should have been entered for damage: 
in favor of the landlord as against the defendant tenant in the 
sum of $1,000.00 for failure to faithfully perform the terms 
of the lease, and that he should reimburse himself, as damages, 
from the balance as far as it would go. 

It is first contended that plaintiff should not be 
charged with one -third of the aggregate amount of the wheat 
combining bill. The lease between the plaintiff and defendant 
expressly provides that the landlord was to pay "one-third of 
the machine bill for threshing wheat." The conclusion of the 
Court in finding that plaintiff was responsible for one-third 
oV the combining bill was clearly justified. The record before 
us also sustains the findings of the Court below and justifies 
the conclusions of the Court based on such findings. 

There are a number of contentions made on appeal as 
to the fact that the lien given by Statute to the landlord is 

- 3 - 



paramount to that of a judgment creditor, etc. There seems to 
have been no doubt in the mind of the Court below as to the 
priority or the nature of the landlord's lien, and the only 
question is whether or not the plaintiff is entitled to damages 
under the facts in this proceeding. The evidence was con- 
flicting as to matters of performance on the lease, aside from 
the question of payment of rent. This Court cannot say on 
appeal that a failure of defendant to plant wheat, or corn, 
or oats, or to save the wheat straw, under the facts, is such 
as to justify this Court on appeal in reversing the Trial Court 
as to such finding of fact and to allow plaintiff to reimburse 
himself for damages and expense as far as money in hands of 
plaintiff will go, before being ordered to pay over any sums 
to other lien holders in the cause. The Court below in the 
written finding, expressly concluded that plaintiff was not 
entitled to recover damages from defendant for failure to 
comply with any of the other conditions of the lease. Where 
facts are in dispute and a Trial Court hears the evidence and 
passes on questions of fact, the Appellate Court will not, 
on appeal, set aside such findings unless they are clearly 
contrary to the manifest weight of the evidence ( VLADOFF vs . 
ILLINOIS BANKERS LIFE ASSN. CO. , 320 111. App. 387, 389; 
MOUSETTE vs. MONARCH LIFE INS. CO. , 309 111. App. 224, 233). 

The judgment of the Circuit Court of Clay County will, 
therefore, be affirmed. 

Judgment affirmed. 



Bardens, J., and Scheineman, J., concur, 



(Abstract) 




S) 



APR 25 1949 

an* op tm« *»«.i»tf gov** 

FOURTH DHTHICT OF IUL!' '13 



- 4 - 



No. 10323 



■:/; '•'--• 



1/ 









In the 

APPELLATE COURT OF ILLINOIS 
Second District 
October Term, A. D. 1948 







1/ 



3 37I.A. 389 



ANGELA CLARA KNEER, 

Plaintiff -Appellant, 

vs. 

PEORIA-ROCKFORD BUS LINES, INC. , 
a corporation, 

Defendant-Appellee . 



Appeal from 
Circuit Court, 
Winnebago Counts'". 



Honorable 
William R. Dusher, 
Judge Presiding 



BRlSTOW, J. — Angela Clara Kneer receive: 1 , personal m- 
• Juries on October 12, 1945, while traveling as a fare-paying 
/ passenger in one of defendant's busses. She entered the bus 
in Roc kford, Illinois, and was enroute to Milwaukee, Wisconsin. 
The accident happened 12^ miles north and east of Rockford, 
Illinois, at the intersection of Route 173 and Argyle Road. 

The bus, -which had the capacity, to carry 37 passengers, 
left the depot in Rockford at 5«00 P.M. and. there was some 
testimony that it was late in its departure. It reached the 
intersection at 5 : 30 P.H., just about sundown. It was a 
clear day and the pavement was dry and there was an unobstructed 
view of the intersection from all directions. 

The bus was traveling in. an easterly direction on Route 
173, a two-lane paved highway, Driving from the north v&l a 
car being operated by Albert Schroeder, whittb collided ;:ith 
the bus, causing it to drive into a field to the north, turn 
over, thereby causing injuries to plaintiff. 

A complaint fHu filed in the Circuit Court of Winnebago 
County by Angela Kneer, charging the bus company with failure 






. 






■ 



" 






1 









... 

i 

■ 



-2- 

to exercise that degree of care that is imposed upon them as 
a common carrier. Defendant, m Its answer, denied the charge 
of negligence. Before a trial by a jury there was a verdict 
of not guilty. The court overruled a motion for new trial 
and entered judgment upon the verdict, for defendant in bar 
of action and for cost. Plaintiff perfected thin appeal. 

The errors assigned and argued by appellant in her brief, 
present the following questions for our determination. (l) 
Was the verdict against the manifest weight of the evidence? 
(2) Was the bus traveling at an excessive rate of speed. (3) 
Did the driver fail to take steps to prevent the accident 
after realizing the perils ahead? (4) Was the jury erroneously 
instructed? 

On the trial of this cause the plaintiff testified that 
the bus was traveling 60 to 6$ miles per hour; that Argyle 
Road is a black top highway running north and south ?nd is 
about 18 feet in width; the driver of the bus saw the Schroeder 
car coming and blew one long blast, but he continued on 
without any decrease in speed, and when he saw the car con- 
tinuing on, he blew his horn again; that as one approached 
the intersection you could see north on Argyle Road for at 
least 1000 feet. 

The evidence further shows that the Schroeder car drove 
into the intersection without stopping; that there was a 
collision between the two vehicles; that after the impact 
the steering apparatus on the bun was broken, whereupon the 
bus driver lost control of the bun, which veered to the left, 
overturning in a field about 400 feet from the highway. 

The bus driver testified that he wan traveling at about 
45 miles per hour; that the collision occurred on the south 
side of the highway; that the Schroeder car ran into the left 
side of his bus without stopping and observing the two "stop" 

ns, one located 100 feet and another 500 feet north on 
Route 173. 



. 






■ 












( 



. 



' 



" 







































Nells. J. Duke, a witness who vm called on behalf of 

plaintiff, testified that she was staH&lng immediately behind 
the driver, and that the bun was proceeding at a moderate 
rate of speed, and that immediately prior to the accident the 
driver honked his horn at least three tines. 

The evidence further reveals that after the accident 
the plaintiff was taken to the St. Anthony Hospital in P-cck- 
ford, Illinois, where she was a patient for- two weeks. In 
view of the conclusions we have reached, it is not necessary 
to consider the evidence concerning her injuries. There was 
considerable dispute on thicissue. 

While the plaintiff was in the hospital, James Good, an 
investigator for the defendant, interviewed the plaintiff 
with respect to the accident. At that time plaintiff said 
that at the tine of the crash that the bus was operated all 
right; that "I have no criticism to find with the bus driver." 

The testimony of all the witnesses, both for plaintiff 
end defendant, except that of appellant, indicate very 
clearly that the bus was not being driven at an excessive rate 
of speed. A careful reading of this record points to the 
conclusion that the sole cause of this accident was the 
failure of the Schroeder car to stop at the Intersection. 
Ve believe the jury's verdict could have been none other than 
that of not guilty. 

This court bad occasion recently to point out the lat- 
portanceof stepping at a stop sign; Hitler v. Rieman dl N.E. 
417, 421. The court made this observation. "The operator of 
a motor vehicle, -hen he stops at r preferred highway, should 
ascertain if he can proceed safely across such highway. If 
he can not, he should not enter it. Merely etoppin™ some 
place near c sto] li n does not necessarily discharge one's 
duty. There is no virtue m stopping st a place when one can 
not see. A stop sign LI a. challenge t'j motorists to stop at 
a point where, by the use of one'n faculties, one can defin- 
itely ascertain if he sen safely proceed into the protected 
thoroughfare." 



■ . 

i 

■ . 

■ 

.... 












■ 

Si) 

\ 



-4- 

Some other cases where the courts have had. occasion to 
emphasize the duties of a motorist when entering upon an 
arterial highway are: Wachs-much v. Flanagan, 355 111. App. 
311; Warren v. Burke, 302 111. App. 85; Piper v. Yellow Cab 
Company, 246 111. App. 487; 

The evidence shows indisputably that the tiriver of the 
Schroeder car drove upon a highway at the intersection in 
question without stopping. The bus driver had a right to 
assume that Albert Schroeder would stop his car and would 
ascertain whether or not he could proceed with safety upon 
the highway before he did so. The law does not require 
that degree of vigilence on the part of a carrier that its 
driver must decrease its speed at every intersecting high- 
way to make sure that every driver of a motor vehicle 
operating thereupon complies with the law. 

The driver of the Schroeder car had a clear, unobstructed 
view of the highway for a distance of 1000 feet. If this 
driver had complied with the law and stopped his car, he 
would have ascertained that he could not proceed upon 'Route 
173 at the time in question in safety. The jury was clearly 
right in determining that it was his negligence that was the 
sole cause of the accident, that gave rise to this litigation. 
The trial court entertained a similar view, and in denying 
a motion for new trial he had this to say: "l am satisfied 
by the manifest weight of the evidence, the bus driver was 
not guilty of failure to exercise the highest degree of care 
and that the facts are that the Schroeder car ran into the 
side of the bus, and he could not reasonably anticipate or 
guard against it." 

Counsel for appellant has brought to our attention 
much criticism of the instructions given on behalf of 
appellee. Vie do not find any substantial or g^evious error 
in this assirnment. We can safely conclude that, assuming 
there is some merit in a few of the objections made, such error 



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-5- 



wae not of such r.rave character that a different result 
could reasonably be anticipated had it not occurred. Con- 
sequently \re do not deem it necessary to burden this opinion 
with s detailed consideration of h- £ counsel for both 
appellee and, appellant have had to say about the various 
instructions. 

Vfe are convinced that the appellant ha? had a fair trial 
and that the jury's verdict and judgment entered thereon 
represent substantial justice and should be affirmed. 



JUD:- ATFlSi-iSD. 






' 












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■■— 5- 



^t>- 



No. 10334 

lMtr£ 



■3? 




3 37I.A. 390 



\ 



In the 

APPELLATE COURT OF ILLINOIS 
Second District 
February Terra, A. D. 1949. 







AUSTIN A. MITCHELL, 

Plaintiff-Appellee , 



vs. 



WALTER W. GEISTER, 



Defendant-Appellant. ) 



Appeal from the 
City Court of Elgin, 
Kane County, Illinois. 



Honorable 
Harry C. Daniels, 
Presiding Judge. 



BRISTOW, J. — Defendant, Walter W. Geister, is appealing 
from an order of the city court of Elgin, Kane County, entered 
in a trial without a jury, awarding plaintiff, Austin A. Mitchell, 
a real estate commission of $470 for procuring a purchaser of 
property owned by defendant. 



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-2- 



Defendant's appeal presents two issues for our determination: 
whether repugnant causes of action were improperly joined in one 
count of the complaint, and whether the trial court erred in con- 
cluding that plaintiff was the procuring cause of the sale, and, 
therefore, entitled to the commission. 

Plaintiff proceeded to trial without a jury under the third 
I count of the complaint, which alleged that plaintiff, a licensed 
real estate broker in Elgin, was requested by defendant on June 
4, 1947 to sell certain real estate, for which defendant agreed 
to pay a 5$ commission; that between June 4, 1947 and November IS, 
1947, plaintiff and James E. Chase, or one of them, procured a 
purchaser who bought the property; and that defendant has refused, 
after demand, to pay plaintiff $470, or 5% of the sale price. 

To this complaint plaintiff attached the affidavit of James 
Chase stating, in substance, that he had on September 19, 1947 
shown the premises to Mrs. Hattie Host and that for consideration 
he assigned whatever claim he may have for a brokers commission 
to Austin A. Mitchell. 

The evidence consisted of the testimony of plaintiff, his 
salesman, Harvey Thurwell, and Hattie Host, and included certain 
exhibits which are not material to the controverted issues herein. 

According to the testimony of plaintiff and that of his 
salesman, Harvey Thurwell, the defendant, Walter Geister, listed 
his property at 1020 Morton Avenue, Elgin, with plaintiff on June 
19, 1947, to sell for $11,500, or a close offer, at a commission 
of 5%, Subsequent conversations in August between plaintiff and 
defendant reaffirmed the listing, and the fact that plaintiff was 
endeavoring to find a purchaser. On or about September 15, 1947, 
at about 6:30 P. M., plaintiff, or his salesman, showed Hattie 
Host and her daughter the property from the outsdie, inasmuch as 
the occupant was not at home. Mrs. Host was informed of the price, 
and that the property was owned by Walter Geister. Plaintiff, 
thereupon, made another appointment for Mrs. Host to see the 

premises, and his salesman, Harvey Thurwell, drove her to the 






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property on September 22, at which time she stated that she had 
been shown the interior. 

Plaintiff endeavored to get Mrs. Host to make an offer for 
the property during the remainder of September and October, 
since she had stated on numerous occasions that she would buy 
the property, but that she wanted the price to include a new 
furnace. 

On November 6 plaintiff's salesman again drove Mrs. Host 
out to the premises after visiting other properties, and he 
stated, "This is what you should buy." She repeated that there 
were too many repairs necessary at that price, and the salesman 
asked her to make an offer. On November 16, two days before 
Mrs. Host signed the contract, she was in plaintiff's office, 
and he referred to the Morton Avenue property, and urged her 
to buy it. 

From the tenant on the premises, plaintiff learned that 
defendant had sold the property. He immediately contacted 
defendant on November 20 and informed him that plaintiff's 
salesman had shown the property to Mrs. Host and endeavored 
to sell it to her, and that they had a file on their negotia- 
tions with Mrs. Host. Defendant, however, denied plaintiff's 
right to a commission, and withdrew any real estate listings 
that he may have had with plaintiff. Upon learning from 
defendant that James Chase had also shown the property, 
plaintiff secured an assignment from Chase, who was a salesman 
rather than a real estate broker, for any interest that he may 
have acquired in a commission. 

The foregoing testimony was controverted by that of the 
purchaser, Mrs. Host, testifying on defendant's behalf. She 
stated that Thurwell had contacted ner and made an appointment 
to show her the property, but when they drove up to the house 






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she informed him that she had already seen the interior, since 
James Chase had shown her the premises a few days before. Some 
time thereafter she claims that she noted an ad in the paper, and 
discovered, after she had contacted the owner, Walter Geister, 
that it was the same property Thurwell and Chase had shown her. 
Defendant, Geister, told her that the price was '£10,000, and 
she asked to be contacted if it came down. When he called to 
report a price of $9,500 she asked for a further reduction, and 
when the premises were offered at $9,400 she agreed to purchase 
the property. 

Mrs. Host did admit, however, that she was in plaintiff's 
office on November 16, two days before the purchase contract 
was signed, and that plaintiff's salesman and Chase were the 
only persons who had ever shown her the property. She could 
not remember whether plaintiff had ever shown her any property, 
or if he did, it was only one place. Nor did she recall looking 
at properties with Thurwell on November 8, but if she did go 
with him, she did not recall seeing the property at 1020 Morton 
Avenue. 

On the basis or the foregoing evidence the city court entered 
judgment for plaintiff for the $470 commission, from which defendant 
is appealing. 

Defendant contends, first, that count 3 contains repugnant 
claims which cannot properly be joined in one count. As herein- 
before noted, this count recites that plaintiff and James E. Chase, 
or one of them, between June 4, 1947 and November IS, 1947, pro- 
cured a purchaser ready, able and willing, who did purchase the 
premises from defendant on November IS, for $9,400, for which 
plaintiff seeks a commission in the amount of $470. 

Plaintiff maintains that this count presents alternative 
statements of fact authorized under the Civil Practice Act, and 
that the alternative claims may properly be stated in one count. 

Sec. 43 of the Civil Practice Act (§167 (2) ch. 110, 111. 



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-5- 



Rev. Stats., 1947) provides: 

"When a party is in doubt as to which of two or 
more statements of fact is true, he may state them in 
the alternatives . . . ." 

Careful reading of the terms and purport of count 3 
indicates that plaintiff is in doubt as to whether the evidence 
will establish that he alone procured the purchaser, or that 
James Chase will be shown to also have an interest, and plaintiff 
has endeavored, therefore, to phrase the complaint so that it 
will be adequate if the evidence indicates that Chase had an 
interest in the commission, to which plaintiff would be entitled 
by virtue of the assignment. This is clearly the type of 
situation contemplated by this section of the statute and under 
its terras plaintiff is entitled to plead in the alternative. 

Moreover, it is our opinion that these alternative claims 
maybe presented in a signle count, under the Civil Practice Act 
and supplemental rules promulgated by the Supreme Court of 
Illinois. 

Rule 12 (§259.12, ch. 110, 111. Rev. Stats.) provides: 

"Different breaches of a contract, bond or 
other obligation and different breaches of duty 
whether statutory or at common law or both, grow- 
ing out of the same transaction or based on the 
same set of facts, may be treated as a single claim 
or cause of action and set up in the same count." 

This rule was interpreted in Winn v. Underwood, 325 111. 

App. 297, to authorize the joinder of alternative claims in the 

same count. Plaintiff therein sought alternative relief under 

different sections of ch. 94 for the wrongful mining of fluorspar. 

The court stated that in view of the provisions of the Practice 

Act, and the language of Rule 12, whereby a party shall not be 

required to plead separately causes of action arising out of the 

same transaction, it would not be grounds for dismissal that 

alternative claims for relief were stated in the same count, and 

thas order dismissing the complaint was erroneous. The court 

distinguished this situation from a case where separate and 



-5- 



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unrelated causes of action, based upon different transactions, 
were involved, in which event separate counts would be proper 
for each distinct cause of action for which a separate recovery- 
was sought. 

In the instant case a single transaction is involved, the 
sale of the property by defendant to Hattie Host, and arising out 
of this transaction are the alternative claims of plaintiff and 
James Chase for a single commission. This is not a case where 
two separate and independent recoveries ars claimed, and defendant 
is not called upon under the terms of count 3 to pay two commissions 
for the same transaction. It does not appear to this count, there- 
fore, that the comments in Chicago Title & Trust Co. v. Guild, 323 
111. App. 60S, concerning liability to only one broker, and upon 
which statements defendant herein relies, are either relevant or 
determinative. Nor is the statement of law in American Juris- 
prudence, submitted by defendant, defining inconsistent causes 
of action, applicable, inasmuch as alternative rather than repugnant 
claims are presented herein. 

Our conclusion that count 3 is legally sufficient is consistent, 
moreover, with the avowed purpose of the Civil Practice Act to 
simplify and consolidate litigation whenever it can be done without 
prejudice. (§175, §149, ch, 110, 111. Rev. Stats.) The complaint 
herein presents a voluntary joinder of alternative claims which 
the court could compel to be joined on a bill of interpleader, 
(Chicago Title & Trust Co. v. Guild, supra.) and their joinder in 
I one count neither violates the Civil Practice Act nor creates any 
ambiguities, nor prejudices any rights of defendant. Furthermore, 
to insist on the technicality of setting forth the alternative 

claims in separate counts would serve no useful purpose. 

With reference to the issue of whether the trial court erred 
in concluding that plaintiff was entitled to the commission, it 
is fundamental that where a cause is tried without a jury, it is 
not the province of the appellate court to reweigh the evidence 






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_'7- 



and substitute its judgment for that of the trial judge, who 
heard and saw the witnesses, unless it appears that its findings 
were manifestly against the weight of the evidence. (Pinkley 
v. Allied Oil Corp., 325 111. App. 326; Wharton v. Meyers, 371 
111. 546). 

To entitle an agent to a commission, it must appear that a 
sale is effected through his efforts or information derived from 
him. However, it is not necessary to establish that the agent 
introduced the purchaser to his principal. (Wright v. McClintock, 
136 111. App. 433; Chicago Title & Trust Co. v. Guild, 329 111. 
App. 374). 

In the recent case of Chicago Title & Trust Co. v. Guild, 
supra, a realtor was permitted to recover a commission from the 
owner where he had given the tmrchaser full details regarding the 
property and it appeared that he "was the one who produced in the 
mind of the purchaser the desire and intention to buy this 
property," As in the instant case, the purchaser there denied 
this fact, but the court stated that his conduct belied this con- 
tention. 

In the instant case the evidence as to whether the plaintiff 
was the procuring cause of the sale is controverted, neverthe- 
less, it appears that plaintiff, his salesman, and Chase were the 
only persons who had ever shown the property to Mrs. Host; that 
she did not contact defendant, Geister, until after she had been 
taken to the property and informed of its price and owner by 
plaintiff's salesman; that on November 8 plaintiff's salesman drove 
her to the property and stated that this is what she should buy, 
and discussed price with her; and that only two days before she 
signed the contract, she was in plaintiff's office and he urged 
her to buy this property. 

Despite these circumstances, Mrs. Host contends that she 
became interested in the property through an ad in the paper, 
and thereafter discussed the terms of purchase with Mr. Geister 



-T- 



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directly, apparently disregarding all conversation respecting 
the property which she had with plaintiff and his salesman 
during this same period. 

In the light of this conflicting evidence it was incumbent 
upon the trial court to adjudge the credence to be given to the 
testimony of the witnesses, and inasmuch as the testimony of 
Mrs. Host was the only evidence offered by defendant, the 
court's finding that plaintiff was entitled to the commission 
is not only supported by evidence, but cannot be deemed to b e 
manifestly against the weight of the evidence. The judgment 
entered by the trial court should therefore, be affirmed. 

JUDGMENT AFFIRMED 



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No. 10315 



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*t'ract 



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3 









In the 
APPELLATE COURT OF ILLINOIS 
Second District 
October Term, A. D. 1948 




\ 



HOWARI ?'OORE, 



vs. 



Plaintiff-Appellee, 



WALTER LOCANTER, d/b/a Locander 
Roofing Company, * 

Defendant -Appellant, 



3 37 1»A» 646 

Appeal frora the 
County Court of 
La Salle County 



Honorable 
John J. f. : assieon, 
Judge Presiding. 



BRISTOW, J. — Plaintiff, Howard f-.oore, commenced proceedings in 
a Justice of Peace court to recover commissions on sales of roofing 
and siding jobs earned while he was in the employ of defendant, Walter 
Locander, d/b/a Locander Roofing Go. A judgment against defendant for 
$475 was entered therein, and on appeal, the county court, in a trial 
de novo, entered judgment on a jury verdict awarding plaintiff 0500, 
from which judgment defendant appeals to this court. 

The basic issues presented herein are whether an accord and 
satisfaction was entered into between the parties, of which this court 
can take cognizance, and whether defendant's motions for a directed 
verdict and a new trial, on the ground that there was no evidence of 
money due end owing to plaintiff, were improperly denied. 


















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■ 









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-2- 

The salient facts are that plaintiff entered into an agreement 
with defendant, Walter Locander, whereby plaintiff was to solicit 
prospects for roofing and siding jobs, and where defendant concluded 
contracts therefrom, plaintiff was to receive 50 r ^ of the difference 
between the contract price and the base price which covered the cost 
of material, labor, transportation, and some profit on the material 
for defendant. Plaintiff was to receive a statement each month, however, 
he received only one statement, and that was after he had separated 
from his employment. 

From his testimony of the jobs he solicited, their contract and 
base prices, the commissions earned and those actually received, it 
appears that he sold some 23 jobs, and that his total earnings were 
$1,591.18, of which he received $908.06, with the sum of $683.12 claimed 
to be still owing from defendant. Plaintiff asserted, moreover, that 
defendant made improper charges against certain jobs, and paid him less 
than the amount due or not at all on many of them. 

Defendant testified that extra charges, where necessary for the 
completion of a job, were to be added to the base price and deducted 
from plaintiff's commissions, and that he paid plaintiff 3943 although 
plaintiff was entitled to only $937.40. 

Shortly after plaintiff separated from his job he asked defendant 
for an advance payment on jobs which he had solicited, but which were 
not yet completed. Before defendant would pay any sum he insisted that 
plaintiff sign a statement which defendant prepared, introduced herein 
as defendant's exhibit 16, on which were enumerated the various 
completed jobs solicited by plaintiff, their contract price, cost, 
and the commissions which defendant deemed plaintiff was entitled. 
There was also a notation on this exhibit of jobs to be laid , of certain 
errors, and a reference to " ;50 advanced ch no. 468." 

Plaintiff did not regard this exhibit as a correct statement of his 
earnings, but ne needed the money and therefore signed it, whereupon he 
was paid a check for $60, introduced herein as defendant's exhibit 14, 
on which appeared the word3 "advance loan." 



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In support of his own assertions of his earnings, and in rebutting 
the accuracy of defendant's exhibit 16, plaintiff offered the cust oner's 
copy of the Rood contract, wherein the price of the job was designated 
as #303, whereas defendant's exhibit 16 indicated that it was only 
£250. Defendant's salesman, Kulpa, testifying on defendant's behalf, 
admitted that the Hood contract was for at least $270. One of defendant's 
former employees, who had worked on some of the jobs which plaintiff 
solicited, testified that only 8 packages of caulking cement were used 
on a particular job, as contrasted with the 50 gallons which defendant 
claimed were used, and for which he charged plaintiff. 

On the basis of this conflicting evidence the county court sub- 
mitted the cause to the jury and entered judgment on its verdict 
awarding plaintiff $500. Although 11 grounds for reversal are alleged, 
defendant has argued on this appeal only that the court erred in denying 
his motions for a directed verdict and for a new trial, on the ground 
that an accord and satisfaction was entered into between the parties. 

Plaintiff contends that no such accord and satisfaction was 
entered, either intentionally, or by legal effect, and that this court 
cannot consider that issue, since it was not presented in the trial 
court, either in the instructions to the jury or in the motion for a 
new trial. Plaintiff argues, further, that there is ample evidence 
to support the court's denial of defendant's motions, and that as an 
additional ground for sustaining the judgment of the trial court, 
defendant failed to comply with the statutory requirements for perfecting 
appeals, in that no praecipe for record was served on plaintiff or his 
attorney, no proof of service of the praecipe was filed in the time 
designated, and that compliance with the statute does not appear in the 
abstract as specified in Rule 36 of the Supreme Court. (259.36, ch. 
110, 111. Rev. Stats. 1947.) 

From the record it appears that the issue of accord and satisfaction 
was neither presented before the Justice of Peace court, nor in the 
county court either in the instructions, or in defendant's motion for 
a new trial. Nor was this issue assigned as an error for reversal. 



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It is established law that a court on review shall not take cognizance 
of any errors relied upon for reversal which were not presented in the 
trial court, or brought to the court's attention on the motion for a 
new trial. (Foley v. Excelsior Stove Mfg. Co., 265 111. App. 78, 96; 
McGovern v. City of Chicago, 202 111. App. 139, 144; Brown v. John L. 
Parahara Hat Co., 198 111. App. 623.) However, even if this court were 
to consider the issue of whether an accord and satisfaction was entered, 
a sound analysis of the facts would indicate that the parties did not 
intend that the check or defendant's exhibit 16 should constitute an 
accord and satisfaction, and that these exhibits do not comply with 
the legal requirements therefor. 

To constitute an accord and satisfaction there must be a tender, 
understood by both parties that it is a payment in full of all demands, 
and the offer should be made in such a manner and accompanied by such 
declarations as amount to a condition that if the party takes it, he 
does so in satisfaction of his demand, notwithstanding any protests 
he may make to the contrary. (Adams, Inc. v. Astoria Box Co., 249 111. 
App. 174; Obermeyer v. Vis. Dairy Farms Co., 199 111. App. 568; 
Canton Coal Co. v. Peril, 215 111. 244.) 

In Adams, Inc. v. Astoria Box Co., supra, in determining whether 

an accord and satisfaction was entered the court stated: 

"The accepting of a check by a lumber broker sent by 
his principal as payment of commissions on sales does not 
operate as an accord and satisfaction of the broker's 
larger demand, where it appears that there was no indorse- 
ment on the check that it v/as given in full settlement of 
the account, that there was nothing in a statement presented 
with the check to inform the broker it was in full settlement 
of his claim. . . ." 

In the instant case, the check dated November 8, 1947, for $50, 

issued by defendant to plaintiff, bore the notation "advance loan," 

and there were no other words on it to indicate that it was given in 

full settlement of plaintiff's account, nor was there anything in 

defendant's exhibit 16, signed by plaintiff when he was given the check, 

which tended to indicate that acceptance of the check was in full 

settlement of plaintiff's commissions. On tne contrary, there was the 

notation on the statement, "11-8-47 (50.00) advance loan Ck. Uo. 468," 

indicating that an advance payment had been raade on the account. 



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According to the Adams caoe, supra, the check and statement herein 
would be insufficient to establish an accord and satisfaction. Moreover, 
the avowed intention of the parties further militates against defendant's 
proposed interpretation. Plaintiff testified that he requested some 
money as an advance on jobs he had solicited, which were still incomplete, 
since he needed money, and defendant admitted, both in his testimony 
before the Justice of Peace, and in the trial court, that exhibit 16 
v/as a statement of only the completed jobs, and that there were three 
unfinished jobs on which plaintiff sought a cash advance, which defendant 
paid after plaintiff signed the statement. 

It is not clear to this court just how this transaction which the 
parties regarded as merely an advance payment, and which bears on its 
face evidence of that intention, could be construed as an accord and 
satisfaction, disposing of all claims for commissions arising out of 
the employment relation. Therefore, defendant's exhibits 14 and 16 
mu3t be considered along with other evidence In the cause in deter- 
mining whether the court erred in denying defendant's motions, rather 
than as an accord and satisfaction conclusively determining the rights 
of the parties. 

It is e fundamental precept that in reviewing the propriety of 
the denial of a motion for a directed verdict, the appellate court must 
consider the evidence most favorable to the plaintiff, and determine if 
there is any evidence fairly tending to support the complaint * 
(Thomason v. Chicago Motor Coach Co., 292 111. App. 104; Bfahan v. 
Richardson, 284 111. App. 493; Hunter v. Troup, 315 111. 293.) 

In the case at bar plaintiff testified that he solicited some 23 
roofing jobs on which defendant admittedly secured contracts, and 
plaintiff claims that under his employment agreement he was to get 50$ 
of the difference between the contract and the base price for all jobs, 
which, he contends, after enumerating each transaction, amounted to 
#1,591.18, of which he received only $908.06. As of the date he left 
his employment he received no commission on 5 jobs, three of which were 
still incomplete. He stated, Moreover, that he was paid 3hort on many 
of the other jobs, where defendant either made improper charges against 
the contract price, as where he charged plaintiff with 50 gallons of 



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caulking material where only 8 packages were used; or defendant did not 
compute the correct price, as in the case of the Hood contract, where 
defendant's statement referred to the price as $250 and the customer's 
copy showed it to be $305. Plaintiff's testimony was substantiated, 
in a measure, by that of the witness, Pizutti, who had worked on some 
cf the jobs which plaintiff solicited. 

This evidence, however, is controverted by defendant's exhibits, 
and by his testimony that he paid plaintiff $943 which exceeded the 
amount due him. Defendant stated, furthermore, that under the agreement 
he could properly charge plaintiff with any extra expenses necessary for 
the completion of a job, in addition to the base price. 

It is our judgment, upon a review of this record, that plaintiff 
submitted evidence from which the jury could find, without acting 
unreasonably, that the material averments of the complaint were sub- 
stantiated. Therefore, the county court committed no error in denying 
defendant's motion for a directed verdict, and it was properly the 
province of the jury to weigh plaintiff's and defendant's conflicting 
testimony. Moreover, the determination of the trial judge who heard 
and saw the witnesses, that the jury's verdict was proper, should not 
be disturbed by this appellate court unless that verdict is manifestly 
against the weight of the evidence. (Horvat v. Opas, 315 111. App. 229; 
Dusatko v. Pletka, 329 111. App. 189 . j In the instant case it aoes not 
appear that defendant's testimony and exhibits clearly and manifestly 
outweigh the evidence offered by plaintiff, and therefore the order 
denying the new trial was proper. 

The constitutional guarantee of trial by jury is not, as defendant 
suggests, a device for inflicting hardship on the rich, from which a 
court must give protection. It is the duty of the court, in eech 
instance, to submit the cause to the jury and abide by its judgment, 
according to the evidence presented. 

Plaintiff has urged, as an additional reason for sustaining the 
judgment of the trial court, the fact that defendant has failed to 
perfect the appeal in accordance with the statute and the Rules of the 
Supreme Court. 



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F.ule 36 (259.36, oh. 110, 111. Rev. Stats.) provides: 

"(1) That Appellant must serve a copy of the praecipe 
upon Appellee or his Attorney; (2) Appellant must show 
proof of service of a copy upon Appellee or his Attorney; 
(3) Appellant must show that within ten days from the time 
he filed his notice of appeal with the Clerk of the Trial 
Court, that he filed a praecipe with said Clerk. That it 
is the duty of the Appellant to affirmatively show in 
abstract that he has complied with the provisions of the 
Statute, or this Court should enter an order sustaining 
the Judgment of the Trial Court." 

In Peo. v. Chgo. Midland Ky. Co., 383 111. 325, the court held tnat 
it la the duty of the appellant to affirmatively show in the abstract 
that the praecipe for record was filed in due time, pursuant to Rule 36. 

In the case at bar no copy of the praecipe for record was served 
upon plaintiff or his attorney; no proof of service of the copy was 
filed with the clerk of the trial court; and the abstract fails to 
show when defendant filed his praecipe, although, in fact, it was filed, 
not within 10 days as specified in the statute, but over 50 days from 
the time he filed his notice of appeal. 

Under the aforementioned Rule 36, on the failure to affirmatively 
show compliance with the statute in the abstract, the reviewing court 
should enter an order sustaining the judgment of the trial court. 
Therefore, this court is constrained to hold that not only was the 
judgment of the county court free from error, but that the judgment 
entered therein should properly be affirmed on the further ground that 
defendant failed to comply with the statutory requirement for perfecting 
an appeal. 

JUDGMENT AI- FIRMED 



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In the 
APPELLATE COURT OF ILLINOIS 
Second District 
February Term, A. D. 1942- 




37I.A. 646 



MARY MURPHY, 



Plaintiff -Appellee , 



vs. 



CHARLES L. WILKIHS and CLARENCE 
CARMODY , 



Defendant s-Appe llant s , 



Appeal from 
Circuit Court, 

Peoria County. 



Honorable 
John T. Culbert8on, Jr., 
Judge Presiding. 



BRISTOL, J. — On September 28, 1947, at 1:00 A. M. , the 
plaintiff Mary Murphy was riding in the right front seat of an 
automobile driven by a fri»nd, Loman Smi^h. In the r°ar seat 
was another couole. Th«> two couples had attended a dance that 
evening In Edelstein, Illinois. Thereafter they were driving 
south on Route 88, inteniing to come to Peoria, Illinois. 

Charles L. Wllkins, the defendant, had spent that after- 
noon and evening at the Mt. Hawley Country Club, which is located 
a few miles north of P«orla. At the time of the acclient he was 
driving his gre»n Cadillac car south on R^utp 88. Folloving the 
Wllfcini car whh a car driven by Robert Bennett, anl with him was 
a young lady who later became his wife. Then behind the Bennett 






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car was the Smith car in which the plaintiff was riding. Clarence 
Carmody with his wife was driving north on this same route. Im- 
mediately prior to the accident in question, the Smith car going 
at the rate of fifty miles an hour passed the Bennett car, and had 
Just turned back on its right side of the pavement when the Wilkins 
oar collided with the Carraody car causing the driver of the latter 
to lose control and veer over onto the west side of the pavement 
striking the car in which the plaintiff was riding and causing 
her serious injuries. 

There was a complaint filed on behalf of plaintiff in two 
counts: first, charging defendant Wilkins with the negligence 
that caused her injuries and the second count charging Carmody 
with the negligence that occasioned the collision. In each 
of these counts the defendants were respectively charged with 
driving their automobiles to the left of the center line, causing 
each automobile to collide with the other. Each defendant filed 
answers denying any negligence on his part and admitting about 
everything else. 

The Jury found the defendant Wilkins guilty and assessed 
the plaintiff's damages at $27,500.00. 

One of the principal objections urged by appellant on this 
appeal is that counsel for appellee performed too aggressively 
and was too eager to have paraded befor« the jury the fact that 
appellant's client was Intoxicated and that he was a person of 
considerable imoortance, finding time to dine, drink, play golf 
and cards at the country club, ani drive a new colorful Cadillac 
automobile. 

The evidence shows very convincingly that Wilkins had been 
doing some drinking prior to the accident. He had spent the 
afternoon at the country club and there he had several drinks. 
He ate his iinner at the country club and played cards after- 
wards and admitted that between 10:30 P. M. and 12:30 A. M. , 



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the time of his departure, he had had several drinks of bourbon 
and Water. 

Robert Bennett, a disinterested witness, testified that 
the gre n n Cadillac driven by Wilkins was proceeding in front of him 
on the morning in question, and was weaving all over the pave- 
ment; that on one occasion he was so far over on the wrong side 
of the pavement that he drove two automobiles into a ditch to avoid 
colliding with him. Loman Smith testified that the Wilkins car 
was over the center line on the east side of the highway at the 
time of the collision with Carmody. 

Garmody, the other defendant, testified that Wilkins came 

over on his side of the pavement striking him and causing him 

to lose control of his car and consequently he ve°red over to 

the west side of the pavement striking head-on the car in 

which plaintiff was riling. 

. We are of the opinion that the trial court did not err in 

permitting appellee to submit proof of the behavior and activities 

of the defendant throughout the evening preceding the accident. 

Wilkins was loathe to admit how many drinks he had taken, but on 

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pre trial deposit! en, he had admitted imbibing more freely than 

his testimony on the trial would indicate. His lack of frankness 

in this regard couolei with the proof that he drove very recklessly 

Immediately prior to the accident, and the fact that defendant 

admitted on cross-examination that he might have been over the 

black. Line a little no doubt led the Jury to the conclusion that 

defendant was not altogether sober at the time of the occurence. 

Wilkins was only slightly injured. His doctor, Ha roll p. 

Dlller, was called to his home between 1:00 and 2:00 A. M. on 

the morning of the accident. He testified that "as far as I 

could see he was sober." Herman Ruesch, a fri?nd of Wilkins 

for eighteen years who lives near the sc^ne of the accident 

testified that he saw defendant that night and talked with him 



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at the scene and his testimony was: "I would say Mr. Wilklns 
was sober." 

Counsel for aopellant protests bitterly against the propriety 
of Miss Murphy's counsel's argument to the Jury. It is claimed 
that it was most prejudicial and inflammatory. It is true that 
counsel continually reminded the Jury in no uncertain language 
that there are certain dangers attached to the driving of a 
high-powered Cadillac upon the highway in an intoxicated condition. 
Counsel did not neglect the importance of reminding the Jury of 
Mr. Wilkins' activities— golf playing and a drink or two, dinner 
and another drink, card playing and four or five more drinks — 
all at the country club. Counsel for appellee also told the Jury 
that his pretty client would never be pretty again; that because 
of the paralyzed nerves on the left side she would never smile 
again; that she would never be able to use the left side of her 
mouth in chewing food; and that all of this misery, suffering and 
wretched disfigurement was caused by the defendant's drunken 
driving. 

Ve are of the view that every argument made by plaintiff 
counsel was supported by the evidence. Admittedly it was damaging, 
but there is no relief that we can extend. We cannot change the 
proof. The testimony clearly indicated that defendant was driving 
his car down the highway immediately preceding the accident in a 
careless fashion. He having admitted much drinking just prior 
thereto, the inference is irresistible that he had drunk too 
much. The evidence is overwhelming that defendant was on the 
wrong side of the paved highway when he collided with the Carmody 
car, and that he was the sole cause of the collision that resulted 
in plaintiff's injuries. 

Mary Murphy was eighteen years of age at the time of the 
trial. 3h» did not remember anything about th<» accident, being 
unconscious until the following Thursday evening. She was in a 



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critical condition throughout the earlier stages of her illness. 
It would require much soace to detail all the testimony touching 
plaintiff's injuries, but since appellant insists that this ver- 
dict is excessive, we will point out a few of the disabilities that 
the evidence indisputably shows resulted from the accident. She 
was in a state of shock for several days; she suffered a broken 
jaxtf bono and intense pain in that area where a splint was placed; 
her left forehead was cut from the hair line down over her left 
eyelid; on the left forepart of her head another cut came down 
through her left eyebrow; and there was a cut that started at 
the too of her left ear and went down across her cheek to the 
center of her throat. The^se cuts cause pain when she is in a 
warm room or in the sunshine; she cannot close her left eye 
normally; the left side of her mouth does not function correctly; 
she cannot movp the left side of her lower lip; she cannot chew 
on the left side; and there is a scar on her left knee which is 
tender. Mise Murphy's teeth were wired together and all of 
them were saved, the splint on her Jaw remaining about thre* 
weeks. She was in the hospital two weeks and then taken to her 
home in Canton, Illinois, but. for some time returned to Peoria for 
treatment once a week. The first time she was able to ©at any- 
thing but soup, broth, etc. was three months after the accident. 
The pains from the injuries to her face are Increasing and there 
is a continued feeling of numbness on the left side of her fore- 
head. Miss Murphy was not able to continue her course of study 
at the University of Illinois, Under-graiuate Division, at Gales- 
burg because of her nervousness. Whenever she us^s her eyes for 
close work, it causes her left eye to water and her vision to 
become blurred. Her teeth were badly chipped, and when she 
eats her Jaws have an aching sensation. There was medical evi- 
dence that several of these conditions of ill-being are permanent. 
When she smiles the muscles on the left side of her face do not 
respond, thus causing a very awkward appearance. Her hospital, 



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nursing, medical and surgical expenses were in excess of 
$1,000.00. Dr. Richard 0. Bauman was called to the hospital to 
s°e plaintiff at 2:30 A. M. the raorning of the accident and 
quoting from the abstract his findings were as follows: "Mary 
was on the operating table in a state of shock and unconscious- 
ness. Shock is the state manifested by a lowering of the blood 
pressure to the point where the blood does not move through the 
system, the pulse becomes hard to feel. The function of the 
heart is in a dubious state, and the threat of death is impending. 
As I looked at her my first impression was the state of loss of 
blood. She was white. She was tilted up on the table and they 
were trying to make her regain consciousness at that time, and the 
entire section of her face was laying vide open so I could see 
the bones, and even the muscles of the tongue beneath there. The 
ear was torn from its base, so that ve could see the bones sticking 
out at the base of the skull, and this seemed to be a rather ragged 
sort of laceration, and the glass was still inside, ground into 
the wound. Above the left eye there was an extensive laceration 
which laid a section of the scalp and the forehead open, and 
exposed the bone and the nerves that come through a little hole 
right above the eye. I looked insile of her mouth and found that 
the tongue itself was torn from its socket, and the tissues inside 
the mouth had bees separated from the gums, so that with a little 
encouragement I could separate what remained of the muscles and 
look clean through to the other side. Of course, the breaks in 
the Jaw were evidence, an! the jaw was hanging down in sort of a 
Harp fashion. Looking over the rest of the situation, I saw 
these extensive abrasions, which were all over her body, and the 
lacer;?.tion on the right leg, the right knee, the inner side, and 
the other knee, which was not extensive. The gland was wide ooen 
and shreiled so that I could see that the nerves were exposed. H 



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In view of the foregoing we io not believe it is necessary 
for anyone to search for an authority to Justify the jury's ver- 
dict of 127,500.00. 

»• have given careful consideration to all the assigmaents 
of error urged by appellant on this appeal, but we have found no 
merit in any of them. The testimony clearly shows that the 
plaintiff's injuries were the result of the defendant Wiikins' 
negligence. The verdict and judgment in this case represents sub- 
stantial Justice anl should be affirmed. 



JUDGMENT AFFIRMED. 



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lien. No. 10333 



Agenda No. 6 



IN THE 
APPELLATE COURT OF ILLINOIS 
SECOND DISTRICT 



FEBRUARY TERK, A. D. 1949 



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J.N J. BOYLE, 

Plaintiff -Appellee 

VS 

RICHARD McGILL 

Defendant-Appellant 

ELMER LINN 

Plaintiff-Appellee 

VS 

RICHARD McGILL and 

JOHN BOYLE 

Defendant-Appellant and 
Defendant-Appellee 

***•#♦ 

ELMER LINN 

Plaintiff -Appellee 



VS 



RICHARD MoOILL and 

JOHN BOYLE 

Defendant-Appellant and 
Defends nt-Appellee 



APPEAL FROM THE 
COUNTY COURT OF 
LA SALLE COUNTY 



Dove, J. 

On September 15, 1947 John 3oyle commenced this 
action against Richard MoO-ill before a Justice of the Peace, 
seeking to recover ;'235.25 damages to his automobile which 



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and which 
he was driving on the early morning of June 29, 1947,/ became 

involved in an automobile collision. From a Judgment in favor 

of the plaintiff, the defendant appealed to the County Court of 

LaSalle County. 

On November 23, 1947, Elmer Linn commenced his action 
against the said John Boyle and Richard McQill, before a Justice 
of the Peace, to recover damages to his automobile which he 
claimed he sustained as a result of the same automobile collision. 
From a judgment rendered by the Justice of the Peace in favor 
of the plaintiff and against John «oyle alone for 250.00 and 
from a Judgment rendered by the Justice of the Peace against 
the plaintiff and in favor of the defendant, Richard McClll, 
the plaintiff, Elmer Linn appealed to the county court of La 
Salle County and the defendant, John Boyle likewise perfected 
his appeal to the county court of LaSalle County. 

In the county court, by agreement of the parties, 
the appeals were consolidated and the cases tried together, the 
issues being submitted to a Jury. The jury relumed a verdict 
finding the Issues for John Boyle and against Richard MoC-lll 
and assessing Boyle's damages at $235.25 and the Jury also re- 
turned a verdlot finding the issues for Elmer Linn and against 
Richard MoGill and assessing Linn's damages at ;305.00. A 
motion for a new trial having been overruled., Judgments were 
rendered upon the respective verdicts and Richard MoGill has 
perfected this appeal. 

The evidence discloses that appellant is a truck 
driver employed by the National Tea Company. About one o'oloci 
on Sunday morning, June 29, 1947 he and his wife came out of 
the ^iltmore Tavern whioh is located about a mile west of 



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Ottawa on the south side of Route No. 6 which is e conorete 
paved highway. Mr. and Mrs. MoG&ll entered their automobile 
which was parked in the driveway in front of the tavern f aoing 
northwest and Mr. MoGill tried to start it. The car would not 
start and Mrs. McGill sought the assistance of an unknown 
person who was in a car to the rear of the MoGill oar. The 
unknown driver of this oar pushed the rear bumpers of the McGill 
oar with the front bumpers of his car and the McCrill oar moved 
' out into the paved portion of Route 6. The bumpers of the two 
cars locked and the unknown driver of the oar started to back 
his oar, the effect of which was to pull the MoGill car toward 
the south edge of the pavement. About this time, the defendant, 
John Boyle, Stanley Rosengreen, and two ladies were proceeding 
in an easterly direction toward Ottawa along Route 6 in a oar 
a being driven by John Boyle. It was raining and as they approached 
the ^iltraore Tnvern they were travelling about thirty-five miles 
per hour. Mr. Rosergreen testified that he was sitting in the 
back seat of the Boyle oar and observed the McGill car as it was 
being pushed out of the Biltmore driveway on to the paved portion 
of Route 6. That this oar proceeded across the south or east 
bound traffic lane until it was about half way to the center 
line of the pavement. At this time another automobile, driven 
by the plaintiff, Blotr i-lnn, was approaching the location of 
the Biltmore tavern from the east, travelling west on Route 6. 
A oollislon occurred. According to the testimony of Mr. Boyle 
his oar first came in oontaot with the MoGill oar and then 
travelled twenty or twenty-two feet further and then hit the 
Linn oar which was travelling in it's proper traffic lane. 



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Acoor&ing to Mr. Rosengreen the Boyle car bit the McGill oar 

«nd the Linn car about the same time. Mr. Boyle testified that 

the front end of the MoGill car, at the time the Boyle oar hit 

it v/as about two feet south of the black line marking the 

oenter of the pavement. According to the testimony of Mr. and 

1'irs. McGill, their oar with the exception of one front wheel 

was completely off the prvement at the time of the collision. 

According to Mr. Linn the Boyle car travelled seventy five or 

one hundred feet after striking the MoGill car before it struck 

his car. 

Mr. MoGill testified that when the bumpers of his car 

and the car that was pushing it locked, the front end of his 

(the McGlll) car was in the middle of the pavement. That the 

that 
car/was pushing the MoGill car then started to back up, taking 

the McGill oar to the south so that at the time It was struck 
by the Boyle car the greater portion of the HcGill oar was off 
the pavement. Both Mr* and ^rs. MoGill were out of the car at 
that time and Mr. MoGill testified that after the accident the 
unknown person who was pushing hira "took off like a soared 
rabbit". 

Counsel for appellant insists that the evidence dis- 
closes that appellant's automobile at no time came in contact 
with the automobile of B3JUKT Linn, that appellant was not guilty 
of any aot which oaueed or contributed to cause the collision 
and that the verdict and Judgment are oontrary to the weight of 
the evidenoe. In this connection counsel argue that the person 
who contributed to the cause of the accident and the party 
really responsible therefor is the unknown person who pushed 
the MoGill car on to the pavement and into the traffic lane of 
I I Boyle car. Counsel argue that since the oar of this unknown 



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person was pushing the McGill car on to the pavement "Richard 
MoGill had no control over the movement of hie oar since hie 
oar was not the moving force." 

This is an unusual argument in view of the evidence 
found in this record. Mr. MoGill was in his oar behind the 
steering wheel when Mrs. MoGill, the wife of appellant, attracted 
the attention of this unknown person and without objection 
appellant permitted his car to be pushed onto the travelled 
portion of the highway and into the south or east bound lane of 
traffic, viiile the situation in which the parties hereto found 
themselves upon the occasion in question may be unusual, all the 
questions presented by this record are questions of faot and we 
are clearly of the opiniGn that the verdicts of the Jury were 
warranted by the evidence and that substantial justice has resulted 
to the parties by the Judgments rendered upon those verdicts. 

There is no reversible error in this record and the 
Judgments of the county court of Laiialle County will be 
affirmed. 

Judgments affirmed. 



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STATE OF ILLINOIS 
APPELLATE COURT 
FOURTH DISTRICT 
February Term, A.D. 1949 




Term No. 49F16 



Agenda No. 10 



EMMA JENNINGS, 

Plaint iff -Appellee, 
-vs- 
ALBERT DOUGLAS JENNINGS, 

Defendant -Appellant 



Appeal from the 
Circuit Court of 
Alexander County. 



3 37 1 .A. 647 



-> 



CULBERTSON, P. J. 



This is an appeal by ALBERT DOUGLAS JENNINGS 
(Defendant-Appellant, hereinafter called defendant) wherein 
he seeks to reverse an order of the Circuit Court of Alexandei 
County, Illinois, overruling defendant's motion to vacate a 
decree entered on January 9, 1948, wherein EMMA JENNINGS, 
Plaintiff-Appellee (hereinafter called plaintiff), secured 
a divorce from defendant on the grounds of desertion. 

It appears from the records in this case defendant 

signed an entry of appearance on November 29, 1947, and which 

said entry of appearance and the acknowledgment thereof, are, 

as follows: 

"ENTRY OF APPEARANCE. 

I hereby enter my appearance in the above entitled 
cause as defendant therein, and expressly waive the 
necessity of process of summons and consent that the 
same proceedings may be had therein, as fully and with 
the same force and effect as though I had been duly and 
regularly served with process of summons therein in the 
State of Illinois, at least thirty days prior to any 
return day designated by the plaintiff herein or as 
provided by law. 

I further consent that immediate default may be 
taken and entered therein against me upon the filing 
of this appearance or at any time thereafter, and that 
an immediate hearing of said cause may be had without 



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further notice. 

Dated this 29th day of November, A. D. 1947. 

ALBERT DOUGLAS JENNINGS. 

State of Illinois, ) 

) ss. 
County of Alexander. ) 

I, Mildred McDaniel, notary public in and for said 
county and state, do hereby certify that Albert Douglas 
Jennings, personally known to me to be the same person 
whose name is subscribed to the foregoing waiver of 
summons, appeared before me this day in person and 
acknowledged that he signed said appearance as his 
free and voluntary act, for the purposes therein set 
forth. 

Given under my hand and notarial seal, this 29th 
day of November, 1947. 

Mildred McDaniel, 
(Notarial Seal) Notary Public." 

It also appears that on December 1, 1947, the plaintiff and 

the defendant herein entered into a certain stipulation, which 

said stipulation is as follows: 

"STIPULATION 

It is hereby agreed and stipulated between Emma 
Jennings, plaintiff, and Albert Douglas Jennings, defend- 
ant, parties to the above-entitled cause, that: 

1. Said defendant will sign a written Entry of 
Appearance and thereby enter his written consent to the 
proceedings had in this cause. 

2. Plaintiff will have the care and custody of thai" 
minor children, namely, Emma Clare Jennings, age 6 years, 
and Albert Douglas Jennings, Jr., age 7 years, and defend- 
ant will have the right to visit soid children at all 
reasonable times. 

3. Defendant will pay to plaintiff for the support 
and education of said minor children the sum of $175.00 
per month. 

4. The material portions of this stipulation will be 
incorporated into the Decree of Divorce when granted. 

Dated this 1st day of December, 1947. 

EMMA JENNINGS, 

Plaintiff. 

ALBERT DOUGLAS JENNINGS, 
Defendant . " 

Plaintiff filed her complaint for divorce on January 

7, 1948, together with defendant's entry of appearance and the 

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foregoing stipulation. The cau3e came on hearing on Jamjar:/ 
9, 1948, and a decree was entered on said date, by the terms 
of which plaintiff W83 divorced from the defendant, and was 
given the care and custody of the minor children of the 
marriage, with the right to defendant to visit them at all 
reasonable times, and the defendant was ordered to pay plain- 
tiff the sum of $175.00 each month for the support and main- 
tenance of said minor : Ldren. On February 7, 1948, defendant 
filed his verified motion to vacate the decree entered on 
January 9, 1948, and which said motion contains 3ome twenty- 
one paragraphs setting forth various reasons why the decree 
should be vacated. The three points relied upon for reversal 
in this Court in defendant's brief may be fairly stunr.arized 
as follows: (1) The entry of ap >e* rat s did not confer 
jurisdiction or. the Court of the person of the defendant; 
(2) The decree should have been vacated because of collusion 
of the parties; and (3) The Court abused its discretion in 
refusing to vac at s the decree. 

fe have examined •:*. i great es ire the authority 
cited r/: defendant in support of his f .' rst contention, and we 
da not believe a.aey furr.iar. -uapvr-t for the aa.nte - tiar. . On 
the contrary, an examination of the sntry of appearance sigi 

• lefendant, discloses la is «rery similar tc bhe one aeld 
ralid In the case of VA¥ETTE vs. HYERS , 303 111. 562. We kn( 
of no authority in this State that holds that a defendant who 
is of full age and under no disability cannot, by a proper 
..'try of appearance, submit himself to the jurisdiction of the 
Court by way of entry of a arance. 

- to the second content! or advanced by dei tit, 
a the ■- '. .- se should have been vacal t tl jrount of 
collusion, a careful insp ction of ti la record doe.a t I 1s- 
close any charge of collusia- parties to this 

litigation. It is true, the motion to set aside the decree 
contains the statement that the defendant believes be t it 

- 3 - 



guilty of collusion, but it contains no assertion that the 
plaintiff was guilty of any collusion. Collusion must have 
the participation of more than one person. 

paragraph 7 of Section 50 of the Civil Practice Act , 
ILLINOIS REVISED STATUTSS , 1947, Chapter 110, Section 174, 
provides that the Court may, in its discretion, before the 
final judgment, set aside any default, and may, within thirty 
days after the entry thereof, set aside any judgment or decree, 
upon good cause shown by affidavit, and while defendant urges 
in this Court that there was an abuse of discretion on the 
part of the Chancellor who heard this matter and determined 
it, we must conclude from a careful examination of the record 
in this case that it fails to disclose any abuse of discretion 
on the part of the Chancellor of which this Court should take 
cognizance to the extent of a reversal. 

The action of the Chancellor in refusing to set asic 1 .? 
the decree entered by him on January 9, 1948 was, in the 
opinion of this Court, fully warranted, and is, accordingly, 
affirmed. 

Affirmed. 

Bardens, J., and Scheineman, J., concur. 



(Abstract) 




® 



APR 25 1949 

clbkk or th« hvrmxxM* couwr 
FOURTH DISTRICT OF H.l.1^13 



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STATE OP ILLINOIS 

APPELLATE COURT 

FOURTH DISTRICT 

February Term, A. D. 1949 










Term No. 49F7 



Agenda No. 5 



ROBERT H. HOLMES, 

Plaintiff-Appellant, 
-vs- 
FLORENCE GARRETT HOLMES, 

Defendant-Appellee . 

BARDENS, J., 



Appeal from the 
Circuit Court of 
Saline County, 

Illinois . 

0071 



■—■ •, 



On February 17, 1948, Robert H. Holmes, Appellant, filed 
divorce proceedings against his wife, Florence Garrett Holmes, 
Appellee herein. Appellant alleged that his wife was guilty 
of desertion and that she had obtained jewelry from him through 
fraudulent practices. A jury trial was requested by the 
Appellant. An answer and counterclaim was filed by Appellee. 
Appellant then filed a motion to strike Appellee's answer, 
which motion was denied. After Appellant filed an answer to 
Appellee's counterclaim, on April 21, 1948, the case proceeded 
to trial and evidence was introduced before a jury* At six 
P.M. of that day, before all evidence was closed, the Court, 
thinking the jury was advisory only, took the case from the 
jury and made the following docket entries: 

"-;:--::--::- the Court takes the case from the jury, and being 
fully advised in the premises, enters the following decree 
and judgment, viz.: 

Finds the Defendant guilty of desertion without legal 
cause. 

Finds Defendant has expended considerable money at the 
Plaintiff's fault. 






- 1 - 



Finds Defendant entitled to attorney fees and expenses. 

It is THEREFORE ADJUDGED AND DECREED that a divorce be 

entered at Defendant's fault on desertion." 

"-:Ht-::-That the Plaintiff pay Defendant $150.00 for return 

of money expended without her fault; and $150.00 for expenses 

incurred because of this law suit and the further sum of 

$250.00 as per reasonable attorney's fees. 

It is further decreed that the Defendant return to the 

Plaintiff an engagement ring (which the Court finds to have 

been a gift to the Defendant) upon the Plaintiff depositing 

with the Clerk for the Defendant the sum of $150.00 within 

thirty days of this date for the value thereof." No formal 

order was signed or approved by the Court at that time. 

A motion to amend the findings made on April 21, 1948, was 

filed by the Appellant on May 18, 1948. On June 8, 1948, 

a formal decree in accord with the docket entries of April 21 

(except it provided Plaintiff pay $50.00 instead of $150.00 

for expenses of suit) was presented to the Court which said 

order was signed and approved by the Court on that date. 

This order was entered of record June 9, 1948. June 14, 1948, 

the Appellant filed his Notice of Appeal in words and figures 

as follows: 

"Please take Notice that Plaintiff in the above entitled 

cause hereby appeals to the Appellate Court, Fourth 

District of Illinois, from part of decree rendered and 

entered in the Saline County Circuit Court of Illinois 

on the 21st day of April, 1948, which decree — 

Took from the jury the question of fraud, 

Ordered plaintiff to pay to the defendant, 

$150.00 for clothing, 

50.00 for expense attending trial, 
150.00 for certain jewelry, 
250.00 for defendant's attorney fees. 

wherefore plaintiff prays that said portion of said decree 

ordering payments to the defendant be reversed and for 

- 2 - 









naught held, and said cause remanded and ordered the 
question of fraud be submitted to a jury." 
Appellee filed her Notice of Cross Appeal on June 24, 1948, as 
follows: 

"-::--::--::-De fend ant prays that the Decree of Divorce entered 
June 9th, 1948, be reversed, annulled, set aside and 
wholly for nothing esteemed and that the cause be 
remanded to the trial court for a new trial." 
Initially, it should be observed that the Appellant has 
appealed from a portion of the decree rendered April 21st 
when, in fact, on that date only the docket entries quoted 
above were entered by the Judge. Such docket entries do not // 
constitute a final judgment reviewable by this Court, 
People vs. Mew York Cent. R. Company, 391 111. 377 and cases 
cited. However, we are disposed to call this error of 
Appellant's Notice of Appeal one of form rather than substance, 
A final judgment in accord with the docket entries of April 
21st was entered June 9, 1948, prior to Appellant's filing his 
Notice of Appeal. Such Appeal did advise Appellee of that 
portion of the judgment complained of and that Appellant de- 
sired this case to be reviewed by a higher tribunal. Appellee 
was not prejudiced. This was a sufficient substantial com- 
pliance with Rule 33 of the Supreme Court. Luner vs. Gelles, 
314 111. App . 659; People vs. New York Cent. R. Company supra 
and cases cited. 

Since this is construed to be an appeal from the final 
judgment recorded June 9, 1948, the Cross Appeal of the 
Appellee must be granted in that the lower Court erred in 
taking the question of desertion from the jury. The entire 
record shows that this action of the lower court was performed 
'.vith the mistaken conception that the jury was advisory only. 
Nor was it the court's intention to enter a directed verdict. 
By its order of June 15, 1948, fixing the appeal bond, the 
lower court recognized it had committed error and was willing 

- 3 - 



/ 



to set aside its former decree if the parties agreed. How- 
ever, by filing his Notice of Appeal, June 14,-^Appellee per- 
fected his appeal and this Court has no jurisdiction to review 
this subsequent order of the lower court. M. A. Wolcott et al. 
vs. The Village of Lombard et al., 387 111. 621; Cowdery vs. 
Northern Trust Co., 321 111. App . 243. 

On November 18, 1948, after a hearing upon a subsequent 
petition filed by the Appellee under Section 15 of an Act 
entitled, "An Act to revise the law in relation to divorce" 
(111. Rev. Stat. 1947, Chap. 40, Para. 16), the lower court 
ordered Appellant to pay into Court for the use of the Appellee, 
$150. 00 for Appellee's appeal costs, and the further sum of 
$300.00 as partial attorney fees for the appeal. Sometime 
before December 30, 1948, Appellant filed an amended notice 
of appeal from said order of November 18, 1948, which Appellee 
has moved to dismiss. While amendments to the notice of Appeal 
are permitted, they relate back to the time of the filing of 
the original Notice of Appeal and can not therefore include 
any order entered subsequent to the date of the filing of the 
original notice. Appellant is here seeking a review of a sub- 
sequent order which could not be included in an Amended Notice 
of Appeal. Furthermore, this Amended Notice of Appeal was 
filed more than ninety days after the filing of the original 
Notice, contrary to said Rule 33. 

The Decree of the Circuit Court of Saline County filed 
June 9, 1948, is hereby reversed and the case is remanded for 
new trial. The proceedings pursuant to the amended notice 
of appeal from the order of November 18, 1948, are hereby 
dismissed. 




Culbertson, P. J. and Scheineman, J. concur. 
(Publish abstract only) 




S) 



- 4 - 



MAY 9 1949 



'OUWTM DI»T»iCT OP let I - J 



V \ 




I 



MAY 9 1949 



j&&fi<#&<*wr 



In the 

-JM»* •* »»•«*»*«**»« COURT 

APPELLATE COURT OP ILLINOIS '«««tm otSTmcT of m.li».ois 



FOURTH DISTRICT 
February Term A. D. 1949 



Term No. 49F22 




Agenda No. 7 



LETHA B. AKIN, 

Plaint iff -Appellant, 
-vs- 
KENNETH JACK AKIN, 

Defendant- Appellee. 



Appeal from the 
Circuit Court of 
Williamson County, 
Illinois. 

The Honorable 

C. Ross Reynolds, 

Judge Presiding. 



Scheineman, J. 



JL 



A. 648 



On January 25, 1947, the Plaintiff, Letha B. Akin, 
secured a divorce from defendant, Kenneth Jack Akin, and was 
awarded custody of their two male children, aged 22 months and 
5 months, respectively. The defendant was allowed the right 
of visitation, and was ordered to pay plaintiff $80.00 per 
month for the support of the children. Six months later, 
pursuant to defendant's petition, the decree was modified to 
make the visitation privileges specific. By this order the 
defendant was permitted to take the older boy to his home on 
every sixth Saturday, keeping him not longer than three hours, 
and to visit the younger child for a few minutes on the 
occasion of these Saturday trips. It was further provided 
that after two years, the younger child might be taken as well 
as the older. 

On December 30, 1948, the court again modified the 
decree with respect to visitation privileges, pursuant to 
hearing upon defendant's petition and plaintiff's counter- 
petition. By this order, defendant was permitted to take the 



- 1 - 



older boy (aged nearly four years) to his home on every third 
Saturday at 9 A.M. and return him the next day at 5 P.M. He 
was also permitted to take the younger boy on both said days, 
every third week, between the hours of 9 A.M. and 5 P.M. but 
not to keep him over night. This child was then aged two years,. 

The plaintiff has appealed from this last order, and 
seeks reversal thereof upon the following grounds: (1) That 
defendant failed to pay the monthly installment's for support 
during the months of August, September and October. 1947; that 
thereafter he paid the subsequent installments but did not make 
up the delinquency; that he was still in default as to these 
payments and therefore did not come into court with clean hands, 
and the court should have denied his petition for that reason 
alone. (2) That there was not shown any change in conditions 
justifying a change in the previous order in any event. (3) 
That the court erred in denying the counter petition for an 
increased allowance per month, since the cost of living had 
gone up in the interim. (4) That the court erred in allowing 
an inadequate amount for plaintiff's attorneys' fees on this 
last hearing, in the sum of $50.00. 

As to the first contention, the court found that the 
non-payment of $240.00 for the three months "was not a wilful 
and contumacious disobedience but was due to the misfortune 
of his sickness'! This finding is supported by uncontradicted 
testimony that defendant was ill and in the hospital for three 
months beginning in July 1947. The court further directed de- 
fendant to pay up the arrears. This finding and order were 
correct under the circumstances. Where a default is not wilful,, 
but is excusable, the court may properly hear a petition to 
modify a decree in behalf of the party in default. If this 
w ;re not the law, then in all cases, no matter what the 
excuse, "the court would be powerless to grar.t relief as to 
future and further alimony, no matter what the changed condi- 
tion of the parties or the property or how loudly the facts 

- 2 - 



and circumstances might call for equitable intervention of the 
court. The hands of a court of equity are not thus bound." 
Craig vs. Craig, 163 111. 176. 

On the second point, It would seem that plaintiffs 
animosity toward defendant may well make it difficult and 
perhaps impractical for him to visit in her home. Moreover, 
the plaintiff has recently married a man of long acquaintance 
with the defendant, and the latter has found the situation 
embarrassing. The chancellor considered this re-marriage in 
revising the decree, and this was proper. 27 C.J.S. 1192. 

The original decree expressly provided that defend- 
ant should have visitation rights. Antagonism between the 
parents made it necessary for the court to prescribe the 
conditions and limitations in minute detail, but the result 
did not accord to defendant the right to visit his children 
at reasonable times. He was permitted to see them only at 
intervals of six weeks, and then only for three hours with 
the older boy, and but a few minutes with the younger. Under 
this extreme restriction, the children could hardly know 
their father, and the evidence shows this was the fact. Yet, 
the chancellor could not then do much else, under the condi- 
tions, since considerations of the children's welfare and 
health precluded frequent or extensive deviations from their 
daily routine, during infancy. 

These considerations naturally and inevitable 
diminish and even disappear in time, and the chancellor must 
be allowed a broad discretion in adjusting the order to 
promote the best interests of the children as they progress 
in age, physique and understanding. 27 C.J.S. 1172. 

The defendant appears to be interested in his sons, 
and is paying for their support. It is surely proper for the 
chancellor to endeavor to preserve and maintain for them the 
interest and affection of their father, in spite of objections 
from the mother, there being nothing in the evidence to indicate 

- 3 - 



that the father's influence would be bad. Always in custody 
problems, the primary consideration is the best interest of the 
children, Buehler vs. Buehler, 373 111. 626. The record indi- 
dates this has been the objective of the chancellor, and this 
court will not rule that he must adhere to one arrangement 
indefinitely, when the reasons therefor are disappearing or no 
longer exist. 

As to the counter-petition for an increase in the 
monthly payments, this was not supported by any evidence of a 
change in condition of the parties financially. It was argued 
that the court should take judicial notice of an increase in 
the cost of living. The interval was not long, and minor 
fluctuations in pri-ces in either direction may occur constant- 
ly without materially changing the general situation. The 
chancellor's finding that there had been no material change 
in conditions to justify altering this part of the order, 
appears in conformity with the record before this court. 

Plaintiff was allowed $100.00 attorneys' fees on 
the original hearing, an additional $50.00 six months later 
when the decree was made more specific, and an additional 
$50*00 now in resisting the entering of this last order. No 
evidence was adduced on this matter, and the court used its 
discretion in fixing this amount t Plaintiff's counsel have 
diligently presented her contentions upon the hearing, but 
there does not appear to have been much merit in them, and 
certainly there is nothing in the record before us pointing 
to an abuse of the discretion accorded a trial court in the 
allowance of attorneys' fees. Blake vs. Blake 80 111. 523. 

The modification decree appealed from is hereby 
affirmed. 

Decree Affirmed. 

Culbertson, P. J. and Bardens, J. concur. 

(Publish Abstract only) 

- 4 - 



44414 

CITY 0^ CHICAGO, 

Appellee, 

v. 

KELVIN BERNSTEIN, 




APPEAL FROM MUNICIPAL \ 
COURT OF CHICAGO, 

3 37I.A. 649 




Appellant. 

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE 
COURT. 

Plaintiff filed a complaint against defendant for 
the alleged violation of two sections of the Municipal 
Code of Chicago. Trial by the court without a jury 
resulted in a finding against the defendant as to both 
sections, and a judgment fine of $25.00 for each viola- 
tion, from which defendant appeals. 

Upon the hearing ,it was stipulated between the 
parties that the facts 'in the case are as follows: 
"The defendant is a used-car dealer duly licensed by 
the State of Illinois, having license No. 2565. In the 
month of March 1943 he became a tenant of the premises 
located at 2118-22 N. Cicero Avenue, Chicago, Illinois. 
Prior to his tenancy the premises consisted of a vacant 
parcel of land that had been used as a dump-yard and all 
sorts of debris and garbage was strewn thereon. Upon be- 
coming a tenant the defendant cleared land, leveled it off 
and erected thereon a building 16 feet wide by 24 feet 
long and 20 feet high of one story In height of wood, with 
plastered walls, the exterior wall is of wood siding, the 
structural members are of wood, the roof structure and 
joist are of w~>nd, the rnof sheathing is of wood, the 
roof is covered with tar paper, and there is no partition. 
The balance of the premises is used for the open-air dis- 



r r I • .-. > "; 



iiii''; ^ 



■>/'. 



-2- 

play of used cars. The strtldtUre was designed to be used 
as an office and has been so used from the time it was 
erected to the present time. The nearest property to this 
office buildingis a brick building some 35 or 40 feet away, 
on adjoining land." 

The ordinances involved are as follows: "50-8. 
Ordinary construction or a superior type of construction, 
shall be used for any business unit fifty feet or less in 
height; provided however that in every business unit more 
than two stories high, if of ordinary construction, ceil- 
ings and partitions shall be covered with metal lath and 
plaster; and provided further, that in every business unit 
not more than two stories high, if of ordinary construc- 
tion, partitions shall be, and ceilings may be, covered 
with material equal in fire resistive value to wood lath 
and plaster, 67—59- No building, structure, shed, or 
enclosure of wood frame construction shall be erected 
inside the fire limits, or provisional fire limits, except 
as permitted for a specified use under the occupancy chap- 
ters in the building provisions of this code and except for 
a period of two years from the passage of an ordinance for 
the construction of dwellings designed to meet the housing 
shortage, provided such construction meets the provisions 
of the Chicago Emergency Housing Code passed March 14, 1946, 
and except as provided by chapter 60.1 of this code." 

Defendant seeks to challenge the sufficiency of the 
complaint and the validity cf these ordinances on various 
grounds. He argues that plaintiff as a municipal corporation 
had no power to enact the ordinances; that they are void be- 



» •• I 



-3- 

cause they are uncertain; that they make an illegal classi- 
fication, and grant illegal authority tc administrative 
officers, or are unreasonable. No pleadings were filed by 
defendant, nor did he make any motions to strike the com- 
plaint on any of these grounds. There being no dispute as 
to the evidence, the sole issue presented and decided by the 
court was the applicatirn to the stipulated facts of the 
ordinances claimed to have been violated fry defendant; a 
determination of their validity was not involved, and, in 
fact, no objection was made to the validity of the ordi- 
nances when they were offered in evidence. A similar situa- 
tion arose in Villag e of Riverside v. Kuhne f 397 111. 108. 
In that proceeding no objection was made to any evidence, 
nor was any question presented, either in the pleadings or 
upon trial, that required the court to pass upon the valid- 
ity of the ordinance; at no time prior to judgment did de- 
fendant raise any question as to the validity of the ordi- 
nance. In commenting on these circumstances the court sairt: 
"The validity of the ordinance might have been involved In 
this suit had the defendant objected to the admission of the 
ordinance in evidence, and to the admission of any evidence 
under It, at the same time preserving the question for re- 
view by obtaining a ruling of the court on his objection. 
( Pearson v. Zehr . 125 111. 573.) The right to question the 
validity of a statute or ordinance may be waived either by 
act or omission. (Jenisek v. R iggs , 381 111. 290.) The 
general rule Is, that it is the duty of a person, whenever 
he regards his constitutional right as invaded, to raise an 
objection at the earliest fair opportunity and the failure 






_4- 

to do so amounts to a waiver of the right." The defendant 
in that case proceeded on the theory that the ordinance 
was valid but did not apply to him. The defendant in 
the case at bar evidently proceeded on the same theory. 
He now seeks on appeal, for the first time, to attack 
the validity of these ordinances after judgment has been 
rendered against him. Under like circumstances the court 
in the Village of Ri verside case held that "defendant 
waived his right to question the validity of the zoning 
ordinance," citing Jenisek v. Riggs, supra , and Cpmrs, of _ 
Drain age Dist. v. Smith. 233 HI. 417. City of Litchfield 
v. Hart, 306 111, App. 621, was a prosecution for viola- 
tion of an ordinance, as in the case at bar. There, too, 
a jury was waived and the facts were stipulated. The re- 
viewing court held that it was too late on appeal to raise, 
for the first time, the sufficiency of the complaint and 
the warrant, saying: "The entering into the stipulation 
by appellant waived any defect there might be in the com- 
plaint." We think that under the rule announced in these 
decisions, defendant here is precluded from now urging the 
invalidity of these ordinances," 

The remaining ground urged for reversal is that 
sections 50-8 and 67-59 "do not apply to the **# premises." 
Defendant argues that the term "ordinary construction" is 
a general one that "does not have a well-established and 
understood meaning," and "as a matter of fact, it is 
doubted if two reasonable minds would agree on what is 
included in the general language. To say the least, the 
term is ambiguous and doubtful in meaning"; and because 



-5- 

of this claimed ambiguity or doubt it is urged that resort 
must be had to the "contemporary construction placed on 
this section of the code." The argument supporting this 
theory is predicated on the assumption that the "city 
officials who have the duty of enforcing the ordinance 
were aware of the existence of the structure and that they 
must have concluded that there was no violation of the 
ordinances," The rule of contemporaneous and practical 
interpretation of a statute is recognized in law as afford- 
ing aid in determining the meaning of a doubtful statute, 
and there is considerable authority dealing with the sub- 
ject. It is somewhat analogous to the principle of es- 
toppel running against the government, but is not invoked 
except under special circumstances which would make it high- 
ly inequitable or oppressive to enforce the public right 
sought. (Pe ople v. Thomas. 36I 111. 448.) In the case at 
bar there Is not a single statement or deed by any city 
official construing the use of the premises nor any evi- 
dence to which the doctrine could be applied. Counsel sug- 
gest that the city's failure to prosecute defendant from 
the time the structure was built in 1943 until this pro- 
ceeding was filed in 1947, should be interpreted as es- 
tablishing the right of defendant t^ maintain an improper 
occupancy use of the premises. Even if It could be assumed 
that the city had knowledge of defendant's violation (al- 
though there is no evidence of that fact), the negligence 
of the city conferred no right on defendant to disregard 
its ordinances. Kadgihn v . City of Bio cingto n, 58 111, 
229. In People v. Thomas f supra , the court said that the 



doctrine of estoppel nay be invoked against a municipal 
corporation where there have been positive acts by the 
municipal officers which nay have induced the action of 
a party and where it would be inequitable to permit the 
corporation to stultify itself by retracting what its 
officers had done, but that mere nonaction is not suffi- 
cient to work an estoppel, since the question is not to "be 
decided by the mere lapse of tine but by all the circum- 
stances of the case. See also People v. Woods. 354 111. 
224, and Trustees of Schools v. American Surety Co. . 3 07 
111. App. 398. 

The claimed ambiguity of these ordinances arises 
from an attempt to isolate them from other sections of the 
Building Provisions of the Municipal Code. When read in 
connection with sections 39-1 and 39-2 they are shown to 
be part of a comprehensive, integrated and understandable 
code designed as an important means of protecting the 
public health, safety, comfort and welfare. 

Section 89-I of the code provides that "no building, 
structure, shed or enclosure of wood frame construction 
shall be erected inside the fire limits or provisional 
fire limits, except as provided in section 67-59 in the 
building provisions of this code. Within the provisional 
fire limits of the city It shall be lawful to erect a 
building of wood frame construction to be used for resid- 
ence or mercantile purposes upon approval by the commis- 
sioner of buildings of a petition presented together with 
a plat, plans, and specifications showing the space where 
such building is to be erected. Such petition shall be 



-7~ 

verified by the affidavit of the applicant and shall con- 
tain the written consent of the owners of a majority of 
the frontage upon both sides of the streets surrounding 
the square in which the prrposed building is to be 
erected. No such petition shall be required, however, 
for the erection within the provisional fire Units of 
frame buildings of the type permitted by section 47-4 in 
the building provisions of this code. No residence or 
mercantile building of wood frame construction shall be 
erected within the provisional fire limits exceeding 
thirty feet in height." The foregoing provision explains 
the operation of Section 67-59* an ^ the origin of the so- 
called "fire limits." Defendant attaches to his brief a 
sectional map of the City of Chicago showing that the 
premises involved are within the absolute fire limits 
of the city. 

With respect to the type of building erected by de- 
fendant, section 52-10 provides as follows: "Class 2 
garages, not more than four hundred square feet in area 
nay be of word frame or more fire-resistive type of con- 
struction, except that the floor thereof shall be of non- 
combustile material. Class 2 garages more than four 
hundred square feet in area shall be of ordinary con- 
struction or a more fire-resistive type of constructi n, 
except that the floor thereof shall be of non-combustible 
material." Defendant was undoubtedly familiar with this 
section because he predicated upon it his request for a 
permit to build the structure in question. He obtained 
a permit to build a frame garage twenty feet by twenty 



-8~ 

feet, but instead he erected a different type of building — 
a one-st r ry wooden structure sixteen feet wide, twenty-four 
feet long and twenty feet high — which he used as an office 
rather than as a garage. If he had constructed the build- 
ing called for in the permit and put it to the use which 
the permit allowed, he would not have violated sections 
50-8 and 67-59. Since the wooden structure constructed by 
hin was within the fire limits, its use as an office con- 
stituted a violation of the ordinance. The present fire- 
limits law was enacted in 1941 (111. Rev. Stat. 194-7, ch. 
24, par. 23 — 71), and the power of the city to regulate the 
construction and use of buildings under a similar statute 
was upheld in County of Cook v. City of Chicago. 311 111. 
234. The ordinances in question are designed for fire 
protection and public safety, and in order to accomplish 
their purpose they must be rigidly enforced. Fire protec- 
tion is a necessary governmental service, and ordinances 
enacted in furtherance thereof should be upheld. 

We think the court properly held that defendant vio- 
lated two valid city ordinances ; therefore the judgment 
should be affirmed, and it is so ordered. 

Judgment affirmed. 

Sullivan, P. J., and Scanlan, J., concur. 



44446 

THEODORE A. XOLB 

v. 



Appellee, 




APPEAL FROM CIRCUIT 
COURT, COOK COUNTY. 



650 



DOROTHY GABL and ALBERT J. 
HORAN, Individually and as 
Bailiff of the llunicipal 
Court of Chicago, 

Defendants, 

and 

HELEN A. RUSSELL and 
CHARLES J. RUSSELL, 

Impleaded Defendants. 

On appeal of HELEN A. RUSSELL 
and CHARLES J. RUSSELL, 

Appellants. 

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT. 

The subject matter of this litigation cones %o us 
for the third tine on appeal. The res consists of two 
notes totaling $3700.00, secured by real estate mortgages. 
Inasmuch as the essential facts are fully set forth in two 
former opinions (Gabl v. Gabl. 305 111. App. 620 (Abst.) 
and Carey v. Funk . 327 111. App. 274), they need not be 
repeated here. 

As an indication of the difficulty we experienced 
in following Russell's brief in the first of these appeals 
( Gabl v. Gabl . supra ) . we quote therefrom as follows: "We 
have, however, notwithstanding that appellant's original 
and reply briefs are well nigh unintelligible, patiently 
and carefully read them with as much understanding as they 
would afford and are of opinion that there is no substantial 
error in the decree." In the second appeal (Carey v. Funk, 
supra ) we pointed out that "what we stated in our opinion 
in the farmer case as to the nature of the appellants 1 



\ 



_2~ 

original and reply briefs applies with equal force to 
appellants ' original and reply briefs filed in the instant 
appeal." On this third appeal these difficulties were in- 
creased by such faulty abstracting that we were obliged to 
resort to the record to understand the complaint upon which 
the appeal is predicated. 

On this present appeal the pleadings and motions made 
the record so complicated that it required Russell to devote 
28 printed pages at the outset of his brief to ultimately 
designate the order from which the appeal was taken. The 
flood of litigation orei the ownership of two notts - and 
that in substance is all -Chat is involved - may be imagined, 
but not understood, by the fact that although no evidence 
was offered before the chancellor, Russell felt obliged to 
file an abstract of 97 pages containing myriads of plead- 
ings, affidavits, petitions, notices, motions and orders, 
which opposing counsel considered so inadequate and mis- 
leading as to necessitate the filing of an additional 
abstract of 90 pages in an effort to clarify the litiga- 
tion; and having cast the burden of examining all these 
pyrotechnics upon the court, there is still grave doubt as 
to the ef p ect of the court's rulings on the respective 
motions of plaintiff and defendants for summary judgment 
which were made before the case was at issue and before 
anyone could possibly ascertain what the issues were or 
whether summary judgment would be proper. 

In an apparent effort to keep this show on the road, 
the complaint in this proceeding was filed on the same day 
on which Judge Miner entered the final order in Car ey v. 



♦, * 



-3- 

Funk, which was subsequently appealed from but affirmed, 
and in v/hich cause we decided the very issue presented on 
this appeal. Plaintiff here contends that all matters of 
defense interposed were res ad .judicata because of the final 
decision in Carey v. Fun k and by verdict because of the 
final decision in Gabl v. Gabl . The defense of res ad. judicata 
was interposed by plaintiff in a written motion, verified, 
praying that defendants' answer be stricken because of the 
final decisions on the former appeals. With that motion 
plaintiff filed a written argument. No counteraff idavit was 
filed, and the allegations set forth in the motion were not 
denied or contravened. The final order entered by the chan- 
cellor denied defendants' motion for summary judgment, as 
well as plaintiff's counter-motion for summary judgment? 
that, however, was not a final order because the case was not 
at issue. It also granted plaintiff's motion to strike the 
answer of defendants; that was a final order, and as we view 
it, the only one appealed from. It involved the question 
whether Frank Gabl made a gift of the notes in question to 
his wife, or whether he merely handed them to her so that 
she could sue upon them as his agent and trustee. The 
chancellor in this proceeding, discerning the issue raised 
by the complaint, with supplemental amendment and the answer 
of Charles and Helen Fussell, succinctly summarized the ques- 
tion presented as follows: "But one principal underlying 
issue is presented by the case: either Frank Gabl did give 
the n-te to his wife, as a gift, or under a contract (in 
which case *** it would be 'too bad' for the plaintiff), or, 
he merely handed her the note so she could sue on it as his 




l' J - 



-4- 

agent and trustee (in which case **# it would be 'too bad' 
for the defendant)." Both of those issues were presented 
on the former appeals with exhaustive citation of authori- 
ties and summarization of the rule applicable to the de- 
fenses of r es adjudicata, and as counsel for plaintiff 
pertinently states in his brief: "Nothing we could add to 
that summarization could improve it," 

Accordingly the order of the Circuit Court should 
be affirmed, and it is so ordered. 

Order affirmed. 

Sullivan, P. J., and Scanlan, J., concur. 





44446 

THEODORE A. KOLB, 



Appellee, 



v. 



APPEAL FROM CIRCUIT 
COURT, COCK COUNTY. 



3 37IA. 650 



DOROTHY GABL and ALBERT J. 
HORAN, Individually and as 
Bailiff of the Municipal 
Court of Chicago, 

Defendants, 

and 

HELEN A. RUSSELL and 
CHARLES J. RUSSELL, 

Impleaded Defendants. 

On apoeal of HELEN A. RUSSELL 
and CHARLES J. RUSSELL, 

Appellants. 

MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE 

COURT. 

The subject matter of this litigation comes to us 
for the third time on appeal. The re s involved in the 
first two appeals consisted of two notes totaling $3700.00, 
secured by real estate mortgages. The res in the present 
appeal is a $500.00 note, on which a judgment was entered, 
following which, on an execution sale, an apartment build- 
ing was sold to the assignee of the judgment creditor for 
$1085.00, and another apartment building for $9.19. Inas- 
much as the essential facts are fully set forth in two 
former opinions ( Gabl v. Gabl r 305 111. App. 620 (Abst.) 
and Carey v. Funk . 327 111. App. 274), they need not be 
repeated here. 

As an indication of the difficulty we experienced 
in following Russell's brief in the first of these appeals 
( Gabl v. Gabl . supra ), we quote there£pom as follows: "We 
have, however, notwithstanding that appellant's original 



'. ' .■ 



~2~ 

and reply briefs are well nigh unintelligible, patiently 
and carefully read them with as much understanding as 
they would afford and are cf opinion that there is no 
substantial error in the decree." In the second appeal 
( Carey v. Funk , supra ) we pointed out that "what we 
stated in our opinion in the former case as to the 
nature of the appellants' original and reply briefs 
applies with equal force to appellants' original and 
reply briefs filed in the instant appeal," On this 
third appeal these difficulties were increased by such 
faulty abstracting that we were obliged to resort to 
the record to understand the c mplaint upon which the 
appeal is predicated. 

On this present appeal the pleadings and motions 
made the record so complicated that it required Russell 
to devote 28 printed pages at the outset of his brief to 
ultimately designate the order from which the appeal 
was taken. The flood of litigation over the ownership 
of three notes - and that in substance is all that is 
involved - may be imagined, but not understood, by the 
fact that although no evidence was offered before the 
chancellor, Russell felt obliged to file an abstract 
of 97 pages containing myriads of pleadings, affidavits, 
petitions, notices, motions and orders, which opposing 
counsel considered so inadequate and misleading as to 
necessitate the filing of an additional abstract of 90 
pages in an effort to clarify the litigation; and having 
cast the burden of examining all these pyrotechnics upon 



i; 



-3- 

the court, there is still grave drubt as to the effect of 
the court's rulings on the respective motions of plaintiff 
and defendants for summary judgment which were made before 
the case was at issue and before anyone could possibly 
ascertain what the issues were or whether summary judgment 
would be proper,. 

In an apparent effort to keep this show on the road, 
the complaint in this proceeding was filed on the same day 
on which Judge Miner entered the final order in Carey v. 
F unk , which was subsequently appealed fr~m but affirmed. 

In the instant case the plaintiff, as successor in 
interest to Frank Gabl, sued Dorothy C-abl, the successor 
in interest to Hattie Gabl, and, later, her transferee, 
Helen A. Russell, and the Bailiff of the Municipal Court 
of Chicago, and asked that the Bailiff be enjoined from 
issuing deeds on the execution sales of the two apartment 
buildings (the deeds being ready for issuance within 
three days after the suit was filed) on the ground that 
Frank Gabl, and not Hattie Gabl, his wife, was the owner 
of that note, and the judgment entered on it. The defend- 
ants in their answer set forth the details of their ac- 
quisition of the note in question, all of the said facts 
being precisely the same as those attending the alleged 
transfer of the two mortgage n tes, which were the subject 
matter of the litigation in the two former appeals. 

Plaintiff here contends that all matters of defense 
interposed were res ad judicata because of the final decision 
in Carey v. Funk and by verdict because of the final decision 



_4_ 

in Gabl v. Gabl . The defense of res adjudicata was inter- 
posed by plaintiff in a written motion, verified, praying 
that defendants' answer be stricken because of the final 
decisions on the former appeals. With that motion plaintiff 
filed a written argument. No counteraffi davit was filed, 
and the allegations set forth in the motion were not denied 
or contravened. 

The facts surrounding the acquisition of the note 
in question by Hattie Gabl, as set forth in the answer, 
were exactly the same as those previously set forth by 
the same party, or her privies, in the former cases, in 
connection with the two mortgage notes, with this exception: 
the two mortgage notes were payable to bearer, and when they 
were delivered to Frank Gabl, by the executors of his 
mother's estate, they were not endorsed, not requiring 
endorsement. However, the $500.00 note in question in 
this case, tcgether with another note, was payable to 
Frank Gabl's mother, and therefore required endorsement 
by her executors. The chancellor held that this was a 
distinction without a difference, and with that holding 
we agree. 

The final order entered by the chancellor denied 
defendants' motion for summary judgment, as well as 
plaintiff's counter-motion for summary judgment; that, 
however, was not a final order because the case was not 
at issue. It also granted plaintiff's motion to strike 
the answer of defendants; that was a final order, and as 
we view it, the only one appealed from. It involved the 



.7* 

question whether Frank Gabl made a gift nf the notes in 

question to his wife, or whether he merely handed them to 
her so that she could sue up r n them as his agent and 
trustee. The chancellor in this proceeding, discerning 
the issue raised by the complaint, with supplemental 
amendment and the answer of Charles and Helen Russell, 
succinctly summarized the question presented as follows: 
"But one principal underlying issue is presented by the 
case: either Frank Gabl did give the note to his wife, 
as a gift, or under a contract (in which case *** it 
would be 'too bad * for the plaintiff), or, he merely 
handed her the note so she could sue on it as his agent 
and trustee (in which case *#-* it would be 'tor bad' for" 
the defendant)/' Both of those issues were presented on 
the former appeals with exhaustive Citation of authori- 
ties and summarization of the rule applicable to the de- 
fenses of res ad.judicata , and as counsel for plaintiff 
pertinently states in his brief: "Nothing we could add 
to that summarization could improve it." 

Acc-rdingly the order of the Circuit Court should 
be affirmed, and it is so ordered. 

Order affirmed. 
Sullivan, P. J., and Scanlan, J., concur. 



44461 

EDWARD A. MILLER, 

Appellee, 

v. 

FREDERICK'S BREWING COMPANY, 

Appellant. 







3 371X650 

APPEAL FROM SUPERIOR 
COURT, COOK COUNTY. 



MR. JUSTICE FRIEND DELIVERED THE. OPINION OF THE COURT. 

Plaintiff brought ejectment against defendant to re- 
cover possession of premises located in Thornton, Illinois, 
After issue was joined by the filing of the complaint and 
answer, motions for summary judgment were made by both 
plaintiff and defendant, supported by their respective 
affidavit and counter-affidavit. Pursuant to hearing the 
court entered an order all r wing plaintiff's motion for 
summary judgment and denying defendant's like motion, from 
which defendant appeals. 

Plaintiff claims possession by virtue of a quit-claim 
deed from Marie Overheu, a spinster, and Myrtle Overheu, a 
widow, dated June 30* 1947* a c^py of which was attached to 
his motion for summary judgment. He alleges that ^n July 
1, 1947 the quitclaim deed was registered under the Torrens 
Act (111. Rev. Stat. 1947, ch. 30, sec. 45 et seq.)with the 
Registrar of Titles of Cook County, who issued a certificate 
showing title to the real estate in plaintiff, and that by 
reason thereof he is entitled to possession of the land in 
question. A copy of the certificate of title was attached 
to plaintiff's motion. 

Defendant filed a c-unteraffidavit and affidavit in 
support of its motion for summary judgment in which it is 
alleged that James Frederick, the affiant, is president of 



-2- 

the defendant Frederick's Brewing Company, and prior to its 
incorporation on January 3°j 1946, was one of the co-partners 
thereof; that May 1, 1942 the predecessor in interest of de- 
fendant (a co-partnership of which Frederick was a member) 
leased the premises from one Leo Gottschalk, who was then 
in possession thereof, "and from said date until July 1, 
1945 the defendant's predecessor in interest remained in 
possession as the tenant of the said Leo Gottschalk"; that 
on May 1, 1942 and for some time prior thereto Gottschalk 
was the owner and holder of a certain principal ncte dated 
November 24, 1925 in the sum of $4000.00, payable three 
years after date, executed by Pauline and Frederick Overheu 
and secured by trust deed convoying title to the property 
in question as security, to one Henry Gottschalk as trustee, 
"which said Trust Deed is more fully set out and appears on 
the Torrens Certificate of Title attached to Plaintiff's 
affidavit for Summary Judgment as Exhibit 'B'"; that on July 
1, 1945 Leo Gottschalk, for valuable consideration paid to 
him, s<~ld and assigned to defendant's predecessor in interest 
the said principal note, "and on and from the last mentioned 
date the defendant's predecessor in interest and the defend- 
ant have been in possession of the premises in question in 
the place and stead of said Leo Gottschalk"; and that "said 
Leo Gottschalk was in possession of the premises in question 
on and after default in the terms of the said principal note." 

Thereafter plaintiff m^ved to strike defendant's 
c-unter-affidavit and deny its motion for summary judgment^ 
assigning eight reasons, most of which arc of a technical 
nature. One of the grounds urged is that defendant's affi- 



-3- 

davit in opposition to plaintiff's motion for surma ry judg- 
ment and in support of defendant's motion for summary judg- 
ment fails tc comply with the Civil Practice Act (111. Rev. 
Stat. 1947, ch. 110, sec. 259.15) and rules of court. More 
specifically it is urged that defendant filed no separate 
motion to which the affidavit relates, evidently meaning 
that no separate sheet labeled "motion" was filed. However, 
the title of defendant's affidavit clearly established and 
identified itself as a motion for summary judgment, as well 
as a ccunteraffidavit in opposition to plaintiff's notion 
for summary judgment, and therefore we think there is no 
merit in the point. Nor do we find any merit in the con- 
tention that defendant's affidavit is not made on the 
affiant's personal knowledge. James Frederick, who made 
the affidavit, identifies himself as president rf the cor- 
poration and a partner of its predecessor, and sets forth 
the facts, net on information and belief, but presumably 
from his personal knowledge. As another ground plaintiff 
asserts that the affidavit consists of conclusions. A 
cur scry reading of the affidavit and the facts as herein 
related, indicates that there is no warrant for such a 
contention. A still further ground is that the affidavit 
tends to set up a defense of confession and avoidance, where- 
as the answer of the defendant is a general denial of the con- 
plaint. Defendant's answer avers that defendant "is rightfully 
in possession thereof [the property in question] and has been 
rightfully in p^s session thereof for a long time prior to the 
filing of the complaint herein." Its affidavit clearly al- 
leges evidentiary facts which establish rightful possession. 



-4- 

and is in all respects consistent with its answer. The last 
ground states that the facts set forth in defendant's affi- 
davit do not show a right of possession s uperior to plain- 
tiff's title. This of course is precisely the issue in- 
volved, and the only substantial question here presented 
for decision. Plaintiff's brief is completely silent on 
this issue. However, defendant states the law as we under- 
stand it, and as we think the court should have interpreted 
it. 

From the facts stated in defendant's crunteraff idavit 
and affidavit in support of its notion for summary judgment, 
it appears without dispute that Leo Gottschalk, the owner 
of the mortgage indebtedness, was in possession of the 
premises subject to the mortgage on and after default in 
the terms of the principal note; that on May 1, 194-2 de- 
fendant's predecessor in interest leased the premises from 
Leo Gottschalk; that defendant's predecessor in interest 
was in c ntinu~us and uninterrupted possession thereof as 
Gottschalk 's tenant until July 1, 194-5* ^n which date 
Gottschalk assigned the said mortgage note to defendant's 
predecessor in interest; also that defendant and its prede- 
cessor had been in continuous p^ssessi-n up to October 2, 
1947, the date on which this suit was instituted. Nothing 
in plaintiff's affidavit for sunnary judgment contravenes 
any of these established facts. His claim that he was en- 
titled to the superior right of possession under a quitclaim 
deed is disputed by the very copy of certificate of title 
issued by the Registrar of Titles of Cook County t which is 
attached to his affidavit for summary judgment., showing that 






-5- 

it was subject to an existing mortgage. Defendant's affi- 
davit showed that there was a default in the mortgage, and 
that Gottschalk, as well as defendant and its predecessor, 
had been continuously in passes sirn after default and before 
the Statute of Limitations (111. Rev. Stat. 1947, ch. 83, 
sec. 12) could have run. 

The law is well settled in this state that the Statute 
of Limitations does net run against a mortgage debt where 
the mortgagee, after condition broken, and before the debt 
becomes barred by the Statute of Limitations, takes posses- 
sion of the mortgage property. The early case of Fountain 
v. Bo'kstaver , 141 111. 46l, which is precisely in p int on 
the facts, and subsequent cases following it ( Illinois 
Bank ers Life ;.ssur. Co. v. Punas f 333 111. App. 192, Taylor 
y. Ba ker , 295 111* App, 1) squarely decide the issue pre- 
sented. In the Fountain case plaintiff, who claimed the 
right t^ possession by virtue of a quitclaim deed, as 
plaintiff in this proceeding does, brought ejectment against 
the assignee of the mortgage indebtedness who was in posses- 
sion under the same circumstances as defendant herein. In 
denying plaintiff's claim to possession the court said: "It 
is difficult to see upon what principle the possession of an 
equitable assignee of a mortgage, when peaceably acquired, 
is less lawful than would be that of the mortgagee himself, 
or his tenant j and so it was held in Kil ^our v. G r ;ckley y 83 
111. 109, that an 'assignee of a mortgage, after condition 
broken, being in possession of the real estate mortgage; and 
also being the holder of the note secured by the mortgage < 
and the assignee thereof can defend his possession under 



-6- 

the mortgage, in ejectment brought by the mortgagor or those 

claiming under him." 1 

The lav/ is also well settled in this state that pos- 
session by the owner of a defaulted mortgage is one of the 
recognized m^des under the law for the collection of the 
mortgage debt ( Illinois Bankers Life Assur, Co. v. Punas f 
s upra , Taylor v. Baker , supra f and Reeve's Law of Mortgages 
and Foreclosures in Illinois, vol, 2, sec. 642, p. 723). 
The foregoing authorities cited and discussed in defendant's 
brief, presenting what we conceive to be the only issue in 
the case, are totally disregarded by plaintiff. They sup- 
port defendant's contention that it had a perfect right to 
remain in possession of the premises until the mortgage debt 
became fully satisfied. Defendant's affidavit for summary 
judgment set forth default and continuous possession there- 
after, which gave it a right to possession superior to 
plaintiff's title. Defendant showed by its affidavit that 
it was entitled to have the issue of the right to posses- 
sion decided in its favor. 

Accordingly, the judgment of the Superior Court is 

reversed, and the cause is remanded with directions that 

plaintiff's motion for summary judgment be denied and that 

judgment be entered in favor of defendant on its affidavit, 

and costs taxed against plaintiff. 

Judgment reversed, and cause remanded 
with directions, costs to be taxed 
against plaintiff, 

Sullivan, P. J., and Scanlan, J., concur. 




44405 

HENRIETTA SEAT ON, 

v. 
HAROLD T. SEAT ON, 




Appellee, 



3 3* I«A« uul 



APPEAL FROM SUPERIOR 
COURT OF COOK COUNTY. 



Appellant. 

MR. JUSTICE SCANLAN DELIVERED THE- OPINION OF THE COURT. 

Harold T. Seaton, hereinafter called respondent, and 
Henrietta Seaton, hereinafter called petitioner, were married 
in Evans ton, Illinois, on September 1, 1939. There was one 
child born of the marriage, David Gaylord Seaton, now about 
four and one-half years of age. On July 30, 1947, a decree 
was entered granting respondent a divorce on his cross-com- 
plaint charging desertion. The decree was entered upon a 
stipulation of the parties that the complaint for divorce 
filed by petitioner should be dismissed and that respondent 
be awarded a decree of divorce upon his cross -complaint, 
the stipulation reciting that petitioner had wilfully de- 
serted and absented herself from respondent without any 
reasonable cause for the space of over one year immediately 
prior to the filing of the cross-complaint. The decree 
ordered that petitioner "shall have the sole care, custody, 
control and education of the said minor child, David Gaylord 
Seaton, and the said cross-plaintiff [respondent] * * * 
shall h ave the righ t to visi t said ch i ld at all reasonable 
times and places ^ subject to the further order of this 
court." The decree further provided that the furniture and 
furnishings of the apartment in which the parties had lived 
be transferred to petitioner and become her absolute prop- 
erty, and that respondent assign the lease of the apartment 
to petitioner. Respondent was ordered to pay eighty-five 



t 



-2- 

dollars per month for the support of the child. On November 

13* 1947> petitioner filed the following verified petition: 

"1. * * * 

"2. That on or about August 22, I947 [ twenty-three 
days after the entry of the decree } 9 your petitioner herein 
married Alan Hi Hard Wells, who is an instructor in music at 
the St. Louis Institute of Music s and it is contemplated "by 
the petitioner that she will maintain a residence in St. 
Louis, Missouri in order to live with her said husband; 
that it is contemplated that by July, 1948 , her said hus- 
band will obtain a position teaching in the Chicago area, 
in which case your petitioner and her husband will maintain 
their residence in or about Chicago, Illinois, 

"3. The minor child of the parties hereto is now 
approximately three years of age and needs the maternal 
care, love and affection of your petitioner, and your 
petitioner is desirous of removing said child from the 
jurisdiction of this court to the City of St. Louis, 
Missouri, temporarily, that is until other arrangements 
can be made at the termination of this schnol year in 
July, 1948. 

"4. Your petitioner is desirous of allowing the 
defendant, Harold T, Seaton, to visit said child at reason- 
able times and places and in the event this court sees fit 
to allow her to remove said child to her contemplated resi- 
dence in St. Louis, Missouri, she is willing to bring said 
child to Chicago or to the Chicago area, at her own expense, 
on alternate weekends, that is to say, Saturdays and Sundays, 



~3~ 

in order to allow defendant, Harold T. Seaton, to visit 
said child during those times or at such times as the court 
may see fit to allow; that your petitioner, if allowed to 
remove said child to St. Louis, I'isscuri, pursuant to the 
prayer of this petition and under the conditions which might 
be made by order of this court, will continue t o maintain 
her home in Evanstcn, Ill inois, at 622 Hinm an Avenue a 
Eva nstcn, Illinois, where she n ow resides , and that she will 
bring said child back to said home in Evanston for the pur- 
pose of allowing respondent his visitation rights at such 
times as the court might see fit to designate. 

•15, #- *■ -* your petitioner has now acquired a suit- 
able residence with her husband in the City of St. Louis, 
which is located in a g~<"d neighborhood outside the con- 
gested area • f the city at 7'oQ Clara Avenue, St. Louis, 
Fissrmri; that said place of residence is approximately 
fnur blocks frfm Forest Park in said city and is an ideal 
lT-cati'-.n for the well being of said child, 

"6. Your petitioner believes that it is for the 
best interests of said child tr be permitted to live with 
your petitioner in St. Louis, while she is there and that 
she be allowed to bring him to Chicagr or the Chicago area, 
as indicated above, in order that respondent will have an 
opportunity to visit said child at reasonable times. 

"Wheref ore, your petitioner prays that the Decree 
of Divorce heret^f' re entered herein on July 3°, 1947, be 
modified tn provide that your petitioner be permitted to 
have the child live with her in St. Louis, Missouri until 
the further order of the cnurt, with specific instructions 



_4- 

as to the times and places respondent shall be allowed to 
visit said child and that petitioner have such other and 
further relief as equity may require." 

Respondent filed a verified answer to the petition, 
in which he averred, inter alia , that Alan Millard Wells 
had never been a resident of Chicago but has been a resi- 
dent of Kansas City, Missouri, and is now employed in St. 
Louis, Missouri; "that the said child also needs the 
paternal care, love and affection of the respondent to 
said petition and that is the reason the said child should 
not be permitted to be removed from the jurisdiction of 
this court, so that the father wuld be deprived of his 
society and would not be allowed access to him on all 
reasonable occasions and would offer the opportunity to 
alienate the affections of the child from your respondent. 
"4. Your respondent does not believe that it would 
be to the best interests of the said child to take him to 
St. Louis, Missouri and bring him in tc Chicago for the 
respondent to see on alternate weekends; that a trip of 
• that kind, approximately 285 miles by railway and entailing 
five hours pr more travelling time in each direction, would 
not be to the best interests of the child; that the child 
being a ward of this court should remain within its juris- 
diction, and the said child should not be removed therefrom 
because of the remarriage of the child's mother who desires 
to live in a foreign jurisdiction. 

"5. * * * 

"6. Denies that it w-uld be to the best interests 



\ 



-5- 

Of the said child to live with the petitioner in St. Louis, 
Missouri; that if the said petitioner desires to go and 
live in St. Louis, this respondent is well able to main- 
tain a heme in the jurisdiction of this court so that the 
child could live with him and be cared for by him in the 
environment where the child has been reared and in the 
place where your respondent is employed. 

"Wherefore, respondent prays that the prayer of the 
petition filed herein as aforesaid be denied and that the 
said petitioner be refused permission to take said child 
from the jurisdiction of this court." 

At the commencement of the hearing before the chan- 
cellor up^n the petition and answer, the following colloquy 
took place between the court and counsel: "Mr. Canel 
[attorney for respondent]: Now, if the Court please, I 
think all the cases in Illinois are uniform, starting with 
11 Illinois, the Miner case ~ The Court: You don't have 
to cite the law. Mr. Canel: The child here is of tender 
years. The Court: How old is the child? Mr. Canel: 
Three years and three months. The father is very much 
concerned here. The Court: There is a practical proposi- 
tion here. This woman is remarried, and she has her husband 
in St. Louis. I_know the law, and this C ourt has no power 
to permi t the removal of th e chi ld to another .jurisdi ction 

o f this court. That is well settled law. It starts back 

with the 11th Supreme Report. T hat law was base d on the 
rights o f a father, to see his child at reasona ble tiraesj_ 
and taking it a way f rom the ju r isdicti^n of the curt, he 
couldn't do so. Every case si nce th en has b e en b a sed on 



-6- 

that same premise . These people are divorced, their home 
is broken, and she now has a good homo. We are concerned 
with the welfare of this child. Is the child to be booted 
about here? Either one of these people should make a little 
sacrifice for the child. What kind of love is that of a 
parent for the child - or is it more lc/e for themselves? 
St. Louis is just over the river of the jurisdiction of 
this court. If the home were in East St. Louis, there 
would be no question about it. But, this is just across 
the river. She has a good home for the baby and she is 
its mother. Why couldn't ycu work out a reasonable propo- 
sition where she can bring the child up here, and they 
both will have access to this child; that the child can 
then grow up like a normal person with the fond memory of 
both of the parents. Why not approach it from that angle?" 

The chancellor then proceeded to hear testimony. 
Petitioner testified that she was maintaining an apart- 
ment in Evanston, Illinois, and that her remarriage has 
caused her to live in both places, Evans ton and St, Louis; 
that " I now w ish t o have the c hild come to live with me 
and my husband in St. Louis. I now wish to take the child 
there for three weeks and allow my former husband to see 
him on the fourth week. I have an apartment in St. Louis 
and it is near Forest Park. It has two and a half rooms 
and bath; I can take him there. It is not as large as the 
apartment in Evans ton. The child will get the same space 
and care in St. Louis, If the court sees fit to let me 
take the child to St. Louis and return hero for the fcurth 



' '■ 



-J I '. . 



-7- 

week I am willing to let my husband see the child in the 
fourth week, regardless of the days or number of days. 
The only tiling that I want is that he be brought back to 
me at night"; that the child was three years old on September 
2, 1947 1 that "I feel it is for the welfare of the child that 
he live with ne in St. Louis, because when I am away from 
him, going back and forth, it makes him insecure. I have 
not taken him to St. Louis since the entry of the decree. 
My moth er has cared for the child while I was in St. Louis. 
She live s in Griggsville y I llino is. She cones here and 
takes care of th e child while I am away ." Upon cross- 
examination petitioner testified that the home in Evanston 
"is a nice place to live" and that her nether takes good 
care of her son when she is in St . Louis ; that she would 
bring the boy in once every four weeks, or one week out of 
every four, to Chicago by rail. Respondent testified that 
he objected to his former wife taking the child to St. Louis 
to live, that he wants hin here in the City of Chicago; that 
the child was reared here; that resprndent is employed by 
The Montgomery Ward Conpany and pays eighty-five dollars 
per nonth for the support of the child; that "I an objecting 
to her taking the child to St. Louis. I think the child 
should remain here as I an very f^nd of hin and he is fond 
of ne. It is easy for children to forget quickly. If he 
is away fron ne for three weeks, it seens reasonable to ne 
I will become just another fellow. Secondly, I object to 
hin being taken out of the jurisdiction of the crurt in 
the case. Something might cone up that could require the 



-8- 

attention of the court. Thirdly, I believe that the round 
trip to St. Louis and back will be arduous for ny son and 
that he will over the course of tine nake up with his 
foster father and will not want to see me." Upon cross- 
examination he testified that "ny former wife is not caring 
for the child now. Her mother is. My former wife has not 
been in town for three weeks." Petitioner was recalled to 
the stand. She testified that her present husband "is a 
music instructor at the St. Louis Institute of Music "; 
that"he is going to try to work in Chicago" j that "he is 
expected to teach summer school"; that she expected him to 
get a position in Chicago; that she will live in Chicago 
after July or August of 1948. Upon recross-exanination she 
testified that her present husband was not a resident of 
Chicago and that his family resides in Kansas City, Missou- 
ri; that he in St. Louis now. Thereupon the chancellor 
entered the fallowing decretal order: 

"This natter caning on to be heard on the petition 
of Henrietta Seaton and the answer thereto filed on behalf 
of Harold T. Seaton and the parties being before the court 
and the court having heard the arguments of the counsel and 
being advised of the premises the court doth find: 

"1. It has jurisdiction of the persons and subject 
matter herein. 

"2. That a decree of divorce was entered herein on 
the 30th day of July, 1947, which awarded the custody of 
the minor child to Henrietta Seaton. 

"3. That the said Henrietta Seaton was married on 



-9- 

or about the 22nd day of August, 1947 to Allan Millard Wells 
who is now instructor at the St. Louis institute of Music in 
St. Louis, Missouri.. 

"4. That it is contemplated that by July, 1948 the 
said husband of Henrietta Seaton (Wells) will obtain a teach- 
ing position in the Chicago area and that they will maintain 
their residence In and about Chicago, Illinois. 

,T 5« That the minor child of the parties hereto is 
three years and four months of age, and that the said 
Henrietta Seaton (Wells) in order to provide for the welfare 
of the child is desirous of removing the said child from the 
jurisdiction of this court to the City of St. Louis tempo- 
rarily. 

"6. That the said Henrietta Seaton (Wells) is 
desirous of allowing Harold T. Seaton her former husband 
to visit with the minor child of the parties hereto at 
reasonable times and places and has complied with the pro- 
visions of the decree heretofore entered herein* 

"7. That the nirtr child of the parties hereto is 
of such tender years that it ought to have the maiernal 
care, love and affection of its mother and that said minor 
child ought to be with its mother taking all possible pre- 
cautions to protect the interests of the father, Harold 
T. Seaton, 

"8. That the said Henrietta Seaton (Wells) is now 
maintaining a home for herself and the minor child of the 
parties at 622 Hinman Avenue, Evans ton, Illinois, and that 
if this court allows her to take the child with her to St. 



-10- 

Louis, Missouri, she will bring the said child to Evanston 
every fourth week for a period of seven days and allow the 
said Harcld T. Seaton to visit with the said child every 
day and will allow him to take the said child with hid 
during the day or at reasonable hours in the evening on 
the condition that the said Harold T, Seaton will return 
the child to its mother at bed tine during the entire year. 

"9. That if the court allows the said Henrietta 
Seaton (Wells) to remove the said minor child to St. Louis 
she will post a One Thousand ($1000.00) Dollar penalty bond 
to insure the performance of the conditions hereinbefore 
mentioned. 

"10. That it is for the best interests and the 
proper upbringing of the minor child of the parties hereto 
he remain with its mother and, that it would not in any way 
harm the minor child if it were to reside in St, Louis for 
three weeks and return to visit its father Harold T. Seaton 
on the fourth week, 

"IT IS HEREBY ORDERED, ADJUDGED AND DEGREED: 

"a. That Henrietta Seaton (Wells) be and is hereby 
permitted to remove the minor child of the parties hereto, 
David Gaylord Seat~n, from the jurisdiction of this court 
to St, Louis, Missouri for a period of three out of every 
four weeks, and to return the said child to the heme of the 
said Henrietta Seaton (Wells) at 622 Hinnan Avenue, Evan- 
ston, Illinois on and during every fourth week, and during 
each said week to allow Harold T, Seaton, the father of 
the minor child, to visit with him at any time he desires, 



.. 



-11- 

except that the said minor child shall be returned to the 
hone of Henrietta Seaton (Wells) at 622 Hinnan Avenue, 
Evans ton, Illinois in the evening at about 8:00 p.m., in 
order that the child would sleep in the hone of the said 
Henrietta Seaton (Wells) until further order of court. 

"b. The said Henrietta Seaton (Wells) shall post 
a bond in the amount of One Thousand ($1000.00) Dollars 
with Clara B. Vennewitt as surety on the said bond guaran- 
teeing her performance of the return of the said child to 
the jurisdiction of this court as provided above, 

"c. That all other orders heretofore entered herein 
not inconsistent with this order shall remain in full force 
and effect." 

Respondent appeals from that order. 

Respondent contends that "where a divorce decree 
awards custody of a child to one parent, the other parent 
is entitled to have the child kept within the jurisdiction 
of the court." In Miner v. Miner. 11 111. 43, the law was 
established that it is against the policy of our laws to 
permit the removal of a minor child beyond the jurisdiction 
of the court. The chancellor in the instant proceeding 
knew the law and stated that he "has no power to permit 
the removal of the child to another jurisdiction of this 
court," but sought to justify the entry of the improper 
and inequitable decretal order he was about to enter upon 
the ground that St. Louis was just across the Mississippi 
river, ignoring the fact that St. Louis, Missouri, is with- 
out the jurisdiction of the court just as much as a city 



' •: 



-12- 

in California would be. The attorneys for petitioner, in 
her brief, make a feeble attempt to justify the order enter- 
ed by claiming that the order "merely permits plaintiff 
temporarily to take the child from the jurisdiction of this 
court for short intermittent periods, while maintaining a 
permanent residence in this state," When this appeal was 
reached in this court upon the oral argument calendar peti- 
tioner's counsel failed to appear. In support of her claim 
petitioner cites Smith v. Smith, 101 111. App. 187, which 
holds that the parties are entitled to have the child kept 
within the jurisdiction and reach of the process of the 
court in order that its mandates may be immediately effec- 
tive; she also cites He w itt v. Lon g,, 76 111. 399, which 
strongly condemns an order akin to the instant one and 
states, in forceful language, that the rights of the un- 
offending parent should be fully protected. Here, peti- 
tioner stipulated that she was the guilty party in the 
divorce proceeding, and the reason that prompted her to 
desert her home and husband is obvious. She produced the 
present unfortunate situation as to the child, while 
the instant decretal order, in effect, rewards her and 
punishes the innocent respondent. She stated in her 
petition that she believed it was for the best interests 
of the child to live with her in St. Louis while she is 
there, and prayed that she be permitted to have the 
child live with her in St, Louis, Missouri, until the 
further order of the court. She testified, "I now wish 
to have the child come to live with me and my husband in 
St. Louis"; that she now wished to take the child there 



\ 



-13- 

for three weeks and allow her former husband to see the child 
in the fourth week. There is nothing temporary about a de- 
cretal order which permits the removal of the boy from the 
jurisdiction of the court for seventy-five per cent of each 
month until the further order of the court. The order enter- 
ed is not only contrary to the public policy of this State, 
but is highly inequitable under the facts. It is true that 
a chancellor has the power to permit a ward, under special 
c ircum s tances ,1 to be taken temporarily cut of the jurisdic- 
tion of the court, but the instant case presents no special 
circumstances that would justify the entry of the decretal 
order. 

The dv-;cretal order of the Superior court of Cook 
county is reversed, 

DECRETAL ORDER REVERSED. 

Sullivan, P. J-,, and Friend, J., concur. 



44407 

PEOPLE OF THE STATE OP ILLINOIS 
ex rel. ZADA T. TEMPLET ON, MERYL 
HABERMAN, MAUREEN LANG and 
JSSHHETTE EPPLEY, 

Appellants, 

v. 

THE BOARD 0? EDUCATION OF TOWN- 
SHIP HIGH SCHOOL DISTRICT NO. 201, 
COOK COUNTY, ILLINOIS, 

Appellee. 







APPEAL FROM SUPERIOR 
COURT OF COOK COUNTY. 



37I.A. 652 1 



MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT. 

Plaintiffs appeal from a judgment order of the 
Superior court of Cook county dismissing their complaint 
v for writ of cer tiorari . 

T7e have this day filed an opinion in the mandamus 
case of Peop le ex rel. Templeton et al. v. Board of 
Ed ucation et al . , Gen. No, 44420, The instant plaintiffs 
were the relators in that proceeding and the allegations 
in the complaint in the instant case are essentially the 
same as the allegations in the complaint in the mandamus 
case, save that the instant complaint recites the filing 
of the mandamus complaint and the judgment entered therein. 
] In the instant case defendant answered the complaint and 
plaintiffs then filed a motion to strike the answer, and 
this motion was set down for hearing. The hearing was 
* continued a number of times. After the relators in the 
mandam us case had appealed from the order dismissing their 
complaint in that case, defendant in the instant case was 
allowed, over the objection of plaintiffs, to file a peti- 
tion for leave to withdraw its answer and to file a motion 
"" to dismiss the instant complaint, which motion, over the 



-2- 

objection of plaintiffs, was allowed, and the motion was 
then filed. It alleges: "That there is another action 
pending between the same parties for the same cause of 
action as is set forth in the complaint for certi o rari 
filed herein; that as appears from the sworn petition 
filed herewith, the same plaintiffs in the case at bar 
have previously instituted mandamus proceedings in the 
case entitled Peop le ex rel. Temple ton et al. v. Board 
of Education et al,, No, 46 S 15543 setting forth sub- 
stantially and essentially the same cause of action that 
is set forth in the complaint for cert io rari filed herein; 
that a final order was entered April 23, 1947, by Judge 
Joseph Graber of the Superior Court of Cook County dis- 
missing said mandamus petition from which final order an 
appeal has been prosecuted and perfected by the plaintiffs 
in the mandamus proceeding * ** ■>"-; that said appeal is still 
pending and the appellants therein have filed briefs and ab- 
stracts in the Supreme Court of Illinois and the briefs of 
the defendants in said proceeding (consisting of the defend- 
ant named in this proceeding and the individual members of 
the Beard of Education of Township District 201 Cook County, 
Illinois) are to be filed in the Supreme Court of Illinois 
by October 8, 1947, WHEREFORE, defendant prays for an order 
dismissing the above entitled cause [the instant suit] as 
provided by Section 48 (D) of the Civil Practice Act." The 
trial court, after a hearing of the motion to dismiss, 
entered the judgment order from which plaintiffs have 
appealed. 



-3- 

Plaintiffs contend that "the defense of another 
action pending must be made in apt tine, and Section 48d 
of the Civil Practice Act requires it to be made at the 
earliest practicable tine." Plaintiffs strenuously argue 
that a defense based on the pendency of another action is 
in the nature of a plea in abatement pleading dilatory 
matter and that it must be interposed at the earliest 
possible tine, and that it cones too late after the party 
has answered upon the merits of the case and several con- 
tinuances have been granted defendants upon the hearing of 
plaintiffs' motion to strike the answer. We have con- 
cluded, however, that in determining the merits of this 
appeal we need not pass upon this contention. 

While there is force in another contention raised 
by plaintiffs, that "there is a substantial difference 
between the remedies of mandamus and certiorari and the 
denial of one remedy is not a bar to a suit for the ether," 
we do not deem it necessary to pass upon that contention. 

The third contention raised by plaintiffs is clearly 
a meritorious one. They contend that in view of the posi- 
tion of the instant defendant in the mandamus, proceeding 
the entry of the instant judgment was a highly inequitable 
one and that a just and proper order for the trial court to 
have entered in the instant case was to stay the proceed- 
ings in the instant case until the appeal in the ma ndamus 
case has been finally decided in the reviewing courts. In 
passing upon the instant contention it must be noted that 
in the mandamus case the relators were denied a hearing upon 



-4- 

the merits upon the ground, advanced by defendants and 
finally adopted by the court, that if they had a cause of 
action it could be maintained only by a writ of cer tiorari . 
Tc protect the interests of the relators in the man damus 
case their counsel filed the present certi orari proceeding. 
If the relators in the m andam us proceeding finally lose their 
appeal and the instant judgment stands, they would then be 
deprived of an opportunity to prosecute their claim for 
relief in mand amus or certiorari. Such a result might 
produce a miscarriage of justice. The records in the two 
appeals warrant an inference that defendant Board of Educa- 
tion seeks to avoid any hearing upon the merits of plain- 
tiffs' claim. The fair order for the trial court to have 
entered would be one deferring further proceedings in the 
instant case until the merits of the relators » appeal in the 
mandamus proceeding have been finally determined. Such an 
order is justified under Hailma n v. Buckmaster , 8 111. (3 
Gilm.) 498, 501, 

The judgment order of the Superior court of Cook 
county is reversed, and the cause is remanded with dir2C— 
tions to the trial court to enter an order deferring further 
proceedings in the instant case until the merits of the 
mandamus proceeding have been finally determined, 

JUDGMENT ORDER REVERSED, AND 
CAUSE REMAKDED WITH DIRECTIONS. 

Sullivan, P. J., and Friend, J., concur. 



44420 

PEOPLE OF THE STATE OF ILLINOIS 
ex rel. ZADA T. TEMPLETON, MERYL 
HMBK&AN, MAUREEN LANG and 



JEANKSTTE EPPLEY, 



Appellants, 



v. 



THE BOARD OF EDUCATION OF TOWN- 
SHIP HIGH SCHOOL DISTRICT NO. 
201, COOK COUNTY, ILLINOIS ; 
RICHARD W, HOFFMAN, President; 
GEORGE PETRU, JOSEPH F. MRIZEK, 
E. W. CHODL and A. H. JANECEK, 
Members of said Board of Edu- 
cation, 

Appellees. 




APPEAL FROM 
SUPERIOR COURT OF 
COOK COUNTY. 



O O i A « A.» OO/j 



MR. JUSTICE SCANLAN DELIVERED THE- OPINION OF THE 

COURT. 

The following judgment order was entered in the 
instant case, a mandamus proceeding: 

"This cause coming on to be heard on the motion of 
r elators to s t rike the an swer of respondents to the co mplaint 
for Writ of Mandamus , and the Court, having now considered 
the same and heard the arguments of the respective counsel 
for the parties hereto, 

"And it appearing to the court that the question of 
whether or not the relators have had a hearing under Article 
24 of the School Code of Illinois cannot be determined with- 
out the pro du ction of the rec ords of the r espondent Board of 
Education which the court finds cannot be done by a Writ of 
Mandamus but requires the intervention of a Writ of Certi- 
orari f 

"It Is, Therefore, Ordered that the complaint for 
Writ of Man damus be and it is hereby dismissed at relators' 
costs." 



-2- 

Relators took a direct appeal to the Supreme court, 
claiming that a constitutional question was involved. The 
Supreme court transferred the cause to this court upon the 
ground that it affirmatively appeared from the record that 
no constitutional question was passed upon by the trial 
court. In its opinion the court states (399 111, 204, 210, 
211): 

"The order of the trial court in this case expressly 
recites, in substance, that the complaint is dismissed be- 
cause, in the opinion of the court the question whether or 
not the relators have had a hearing under article 24 of the 
School Code cannot be determined in an action of mandamus , 
but requires the intervention of a writ of certiorari . It 
is apparent upon the face of the order that the court dis- 
missed the complaint solely because, in the opinion of the 
court, the relators had mistaken their remedy and that the 
only question determined by the court was the propriety 
of the form of action." 

The complaint alleges that each of relators was a 
full-time teacher at the J, Sterling Norton High School and 
had entered upon contractual continued service under the 
provisions of Article 24 of the Schorl Code of Illinois, 
each of them having served as a probationary teacher for a 
period of two years \ that they each held contracts to teach 
for all the years of their employment and held contracts 
with the defendant Board for the last year of their re- 
spective probationary period and for the school year which 
closed on June 7, 1946, and that they continued to teach 



-3- 

until the close of the school year on that date. The form 
of the contracts, which were all alike, is set forth in the 
complaint. The complaint also sets forth that each of the 
relators was married during their employment as teachers 
and charges that on March 29, 1946, the superintendent of 
schools of the district sent each of them a letter stating 
that after consideri££ the matter very carefully, the Board 
had voted unanimously to keep to its original policy that 
women who became married may serve two years after their 
marriage and then retire; that the letter further stated: 
"During the war years this rule was held in abeyance, but 
it is hereby reinstated; and so in accordance with the 
board's instructions you will not be offered a contract to 
teach at Morton for the next school years," The complaint 
further avers that the relators, on April 6, 194-6, each 
served upon the Board of Education a written request for a 
hearing by the Board on the notice of dismissal dated March 
29, 1946, but that no hearing was ever given to them, and 
that on June 10, 194-6, they each served upon the Board and 
upon the president and each menber thereof a written demand 
that the "purported notice of dismissal" be withdrawn by 
official action of the Board and relators given official 
notice of such withdrawal, and that they be permitted to 
continue as teachers at the opening of the next following 
school year in September, 1946, which demand defendants re- 
fused and still refuse to comply with; that there is no 
provision in the contracts of relators providing for the 



-4- 

teraination thereof in the event of marriage; that the rules 
of defendant Board have not been published, and that defend- 
ant Board has never given notice to any of relators of any 
validly adopted rule providing for the removal or dismissal 
of women teachers in the event of their marriage ; that no 
provision of the Schcl Code of Illinois and no statute of 
the State of Illinois authorizes defendant Board to dismiss 
or remove women teachers in the event of their marriage, and 
that the attempted termination of the contractual continued 
service of relators violates the rights of relators under 
Section 2 of Article II of the Illinois constitution and 
the first section of the fourteenth amendment to the con- 
stitution of the United States, 

Defendants filed a motion to strike the complaint 
and assigned therein two grounds in support of it, but we 
need only refer to the first, viz., "that the court does 
not have jurisdiction to hear said matter as a Writ of 
Mandamus and if the plaintiffs have any cause of action it 
could be maintained only by a Writ of Cer tiorari ." When 
the trial court overruled that motion defendants did not 
stand by it but elected to file an answer to the merits of 
the complaint. Relators contend that any question as to 

whether mandamus was the proper remedy for relators was 

defendants • 
waived by fc tBOBC answer to the merits of the complaint, and 

they cite in support of the contention People v. Luedcrs^ 

287 111. 107, where the court states (pp. 109, 110): 

"A proceeding for a writ of mandamus is an action at 

law, and the petition, answer and subsequent pleadings are 



-5- 

governed by the sane rules as apply to an ordinary action at 
law. ( Silver v. People . 45 111. 224; Denent v. Rokker . 126 
id. 174; Board of Supervisors v. People f 159 id. 242; People 
v. Board of Education . 236 id. 154. ) The petition takes the 
place of the alternative writ at common law and is in the 
nature of a declaration. ( City of Chicago v. People . 210 111. 
84; People v. Pavey . 151 id, 101; People v . Busse . 247 id. 
333.) An answer to the merits of a petition for a writ of 
nandanus waives a demurrer, and an issue at lav; as to the 
right of the petitioner for the relief prayed for on the 
facts stated in the petition cannot be raised by setting up 
in an answer facts designed to raise such an issue, ( Chicago 
Great Western Railway Co. v. People . 179 111. 441.) A re- 
spondent may demur or answer, and if he answers the answer 
must traverse by distinct and direct denial the facts alleged 
in the petition upon which the claim of the relator is founded^ 
or by confession and avoidance set up other facts sufficient 
in lav/ to defeat the claim. All the material facts alleged 
in the petition and not denied by the answer are admitted to 
be true. (C hicago and Alton Rai lroa d Co. v. Suff ern. 129 111, 
274; People v. Crabb . 156 id, 155; People v. Coords si oners of 
Cook County, 180 id. 160. )" 

While the contention of relators is not without some 
force, in our view of this appeal we deer it unnecessary to 
pass upon it. We note, however, that the dismissal of the 
complaint was not upon the notion of defendants. The answer 
filed by defendants admits that relators were regularly em- 
ployed full-tine teachers prior to June 7, 1946, but denies 



-6- 

that they were so employed after that date; it admits that 
relators held written contracts to teach for all the year of 
their employment and that they each held a written contract 
to teach for the school year which closed en June 6, 1946. 
The answer contains a series of excerpts from the records 
of defendant Board, showing that on April 21, 1936* the 
Board had adopted a policy that "new women applicants who 
are married are not to be employed, but that a normal leni- 
ency be shown to those now employed not to exceed two years 
after the current year"; that on December l6, 1938, this 
policy was discussed and reaffirmed by the Board; that on 
I!arch 29, 1943, the Board voted by unanimous agreement to 
hold in abeyance during the war the rule limiting the tenure 
of married women teachers to two years; that on June 26, 194-5* 
the Board discussed and affirmed its policy in regard to mar- 
ried women teachers and decided to serve notice that at the 
close of the war the policy of retaining married women only 
two years after marriage would be enforced, and that on 
March 28, 1946, at a special session called to hear the 
married women teachers, who had requested the privilege of 
meeting with the Board, relators were present and each gave 
reasons why she should be allowed to continue on the faculty 
of the school, and after the teachers had left the meeting, 
the Board reiterated its policy in regard to married teach- 
ers and requested the superintendent to send letters of 
notification to relators. The answer admits the written 
request of relators for a hearing and their written demand 
to be reinstated as teachers. It denies that the relators 



-7- 

were renoved or dismissed, but states that because of their 
marriage, they were, in accordance with the rules of the 
Board, simply not hired, and that the notice to then of 
March 28, 1946, was not a notice of removal or dismissal, 
but was a notice that relators did not qualify under the 
rules and regulations of defendant Board, In their answer 
defendants deny violating any constitutional, statutory or 
contractual rights of relators and further deny violating 
any rights of relators as teachers having contractual con- 
tinued service under the School Code of Illinois, By filing 
a notion to strike relators admitted the averments of the 
answer that were well pleaded. 

Relators 1 motion to strike defendants' answer sets 
up that the answer pleads no facts constituting a defense* 
that it alleges facts constituting an admission of the facts 
alleged in the complaint and shows on its face that the al- 
legations of the complaint are true and that relators are 
entitled to judgment and a writ of mandamus as prayed in the 
complaint j that the answer admits that defendants, in dis- 
missing relators, did not comply with the provisions of 
Article 24 of the School Codej that the answer fails to 
show the existence of a rule authorizing discharge of 
relators without compliance with the School Code, and shows 
affirmatively that relators never received the statutory 
hearing to which they were entitled. The motion charges 
that the purported rule of defendant Board in regard to 
married women teachers is beyond the power of the Board 
to adept and is a violation of the constitutional, statutory 



-8- 

and contractual rights of relators and a violation of the 

public policy of Illinois. 

There is no law that required either of the parties 
to the instant proceeding to produce the records of defendant 
Board of Education. It is the established practice in 
mandamu s proceedings to set up, in substance, in the plead- 
ings, the naterial parts of the record, and the parties 
followed that practice in the instant case. As part of 
defendants' answer they allege, in substance, the records 
and proceedings of defendant Board which they considered 
naterial in determining relators' claim for relief and upon 
which they relied, and it purports to set forth all of the 
steps taken by defendants in the natter of the alleged 
"dismissal" of relators. Relators' motion to strike does 
not question defendants* statements in their answer as to 
the steps taken by them in the matter of the "dismissal" of 
relators, but it alleges that the answer does not set up a 
defense to relators' complaint. In passing upon relators' 
motion to strike the answer the trial court had no right to 
assume that defendants' answer did not set up, in substance, 
the records and proceedings of defendant Board which they 
considered material concerning relators' claim for relief 
and upon which they relied. Relators' motion to strike the 
answer raised squarely a question of law, but the trial court, 
instead of passing upon relators' motion to strike, entered, 
sua sprnte, the judgment order dismissing relators' complaint, 
and saw fit to incorporate in the order his reasons for enter- 
ing the order dismissing relators' writ of mandamus. As we 



-9- 

undor stand the trial c court's reasons for entering that order, 
the court concluded that he could not determine the merits of 
the case up°n the pleadings before hinj that he then assumed, 
without warrant, that the merits could be determined if the 
records of defendant Board of Education were produced - ig- 
noring the fact that the records were not required in a 
mandamus proceeding; that he then held that the production 
of the records required the intervention of a writ of 
certiorari , and therefore relators' writ of mandamus should 
be dismissed. We are forced to the conclusion that the in-* 
stant judgment order was based upon unwarranted assumptions 
of fact and ill-founded conclusions of law There is force 
in relators' complaint that the trial court, because he could 
not determine the merits of defendants 1 defense from the 
answer, penalized relators and dismissed, without warrant, 
their writ of mandamus ; and in this connection relators call 
attention to the fact that the trial court had overruled de- 
fendants' motion to strike the complaint and that defendants 
had elected to answer the complaint. Defendants, in their 
brief, make little, if any, effort to defend the reasoning 
of the court in entering the dismissal order. They cite in 
support of their statement that " mandamus will not lie in 
the case at bar," People ex rel. Elmore v. Allm an, 382 111. 
156. The question before us was not present in that case. 
It is significant, however, that in that case the established 
rule was followed and the answers of the defendants set up 
the proceedings before the Commission as it related to the 
respective plaintiffs. In numerous mandarins cases before 



-10- 

the Supreme court the established rule was followed. It is 
clear that the trial court erred in holding that the merits 
of relators' complaint could net be determined without the 



production of the records, vbefendantsj) notion to strike 
raises constitutional questions and we express no opinion 
as to the merits of the motion to strike. 

The judgment order of the Superior court of Cook 
county is reversed, and the cause is remanded with direc- 
tions to the trial court to pass upon relators' motion to 
strike the answer of defendants, and for further proceed- 
ings not inconsistent with this opinion, 

JUDGMENT ORDER REVERSED, AND 
CAUSE REMANDED WITH DIRECTIONS. 



'-gfifr^ 







Sullivan, P. J., and Friend, J,, concur, 



U* 



*/r 



7/ - 






"37-6: 



3"*! lUw- 



Gen. No. 10344 

IN THE 
APPELLATE COURT OF ILLINOIS 

Second District 

February Tern, A. D. 1949 




f 



Otto DeMltchell and 
Virginia G. Halstead, 

(Plaintiffs) Appellees, 



vs. 



Walter C. Haas. 

( Defendant ) Appellant 



Aooeal from Circuit 
Court, Will County 



Honorable 

James V. Bartley, 

Judge Presiding 



3 37IiA. 653 



GEORGE W. BRISTOW, J: 

This is an appeal from the two judgments, one for 
seventy-five hundred dollars, entered in favor of the plain- 
tiff, Otto DeMltchell, for personal injuries, and the second 
in the amount of six hundred and eighty-five dollars for the 
plaintiff, Virginia G. Halstead, for property damage, both 
against Walter C. Haas in the Circuit Court of Will County. 
This case was tried before the Court without a Jury. The 
damages claimed are the result of an automobile accident 
which occurred on July 27, 1947 at three- thirty a.m. at the 
intersection of U.S. highway 66-A and Theodore Street in Joliet 
Township, Will County. Highway 66A runs generally north and 
south and intersects Theodore Street at right angles. 

At the time of the occurrence in question, DeMltchell 
and Halstead were operating a bingo game at a carnival a few 
miles west of the intersection in question. DeMltchell had 
been to Joliet in the automobile, the property of Mrs. Halstead, 
and was returning with a tub of water in the back seat of his 
car. DeMltchell was driving north, and when he turned west on 






7? . /V' • 



-3 ^7 -£- 



B^i iuu 



Gen. No. 10344 

IN THE 
APPELLATE COURT OF ILLINOIS 

Second District 

February Tern, A. D. 1949 




A 




Otto DeKltchell and 
Virginia G. Halstead, 

(Plaintiffs) Appellees, 



vs. 



Walter C. Haas. 

( Defendant ) Appellant 



Appeal from Circuit 
Court, Will County 



Honorable 

James V. Bartley, 

Judge Presiding 



3 37I.A. 653 



GEORGE W. BRISTOW, J: 

This is an appeal from the two judgments, one for 
seventy-five hundred dollars, entered in favor of the plain- 
tiff, Otto DeMitchell, for personal injuries, and the second 
in the amount of six hundred and eighty-five dollars for the 
plaintiff, Virginia G. Halstead, for property damage, both 
against Walter C. Haas in the Circuit Court of Will County. 
This case was tried before the Court without a jury. The 
damages claimed are the result of an automobile accident 
which occurred on July 27, 1947 at three- thirty a.m. at the 
intersection of U.S. highway 66-A and Theodore Street in Joliet 
Township, Will County. Highway 66A runs generally north and 
south and intersects Theodore Street at right angles. 

At the time of the occurrence in question, DeKltchell 
and Halstead were operating a bingo game at a carnival a few 
miles west of the Intersection in question. DeMitchell had 
been to Joliet in the automobile, the property of Mrs. Halstead, 
and was returning with a tub of water in the back seat of his 
car. DeMitchell was driving north, and when he turned west on 






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Theo&ore Street he was struck by the Defendant's oar which 
was proceeding south on Route 66A. Inasmuch as this appeal 
is predicated principally upon the question of the weight of 
the evidence, it will be appropriate to examine the factu, 1 
phase of this oase closely. 

DeMltchell testified he was traveling about fifteen 
miles per hour as he was about to turn west on Theodore Street; 
that he looked up Theodore Street and saw a taxlcab approaching from 
the west; that when he looked north the only lights visible on 
Highway 66A were four blocks away; and that just as he turned 
west on Theodore Street something came out of the dark and 
knocked him sideways. Robert Dodge was the driver of the taxi- 
cab coming east. He testified that he had stopped at the stop 
sign before entering upon Highway 66A; that he saw the entire 
accident; and, after being closely interrogated by the trial 
court, stated positively the lights were not burning on the 
Defendant's car at the time of the accident, but that they were 
burning upon the Plaintiff's car. 

The defendant and his wife occupied the car that struck 
the plaintiff. They had been in attendance at a party given in 
honor of Mr. Floyd, who was President of the Teamsters Union of 
Jollet, Illinois. This dinner was held at the Hi-Ho Club, and 
was attended by twenty-five guests. Those first arriving at the 
festivities appeared about eight P.M. Mr. and Mrs. Haas did not 
arrive until nine P.M. The group ate dinner, danoed and drank a 
few beers until the place closed at two A.M. After this the 
defendant his wife proceeding in one car, and Mr. and Mrs. 
Mammosser and Mr. and Mrs. Floyd driving In another car went to 
the Grand View Lunch Stand on Route 66A. At this stop this group 






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had some sandwiches and coffee. No beer. It was after their 
departure from this club and while proceeding south on Route 
66A that the accident occurred. The defendant's car was driving 
immediately in front of Mr. Floyd's oar, although Dodge testified 
that the Floyd car did not arrive at the scene of the accident 
until two minutes thereafter. 

This group of six all testified at the trial and reported 
that the lights on the Haas car were burning at the time of the 
accident. The record is amazingly silent on the question as to 
how much drinking was done by the defendant and his party that 
evening. In the main, their testimony revealed that they/simply 
had the proverbial one or two beers. The trial court became a 
little impatient with the timidity of counsel in exploring the 
field of inquiry and started a little investigation of his own 
and developed this evidence. 

(Abst. 57, Rec. 217) (Examination of Slrie Floyd): 

Q. And what did you have to eat? 

THE COURT: Pink tea. 

THE WITNESS: Roast beef dinner, salads and that stuff. 

(Abst. 53, Rec. 224) (Examination of Elrie Floyd): 

Q. If you left the Hl-Ho Inn at two o'clock — 

THE COURT: Some of these parties, were some of the parties 
a little tight, is that what it is all about? 

THE WITNESS: I wouldn't say that any one was too tight. 
They wasn't drinking too much. 

(Abst. 61, Rec. 240) (Examination of Mrs. Ruth Floyd: 

Q. Who was riding with you? A. Mr. and Mrs. Mammosser. 

THE COURT; Husky was sober? You didn't go to Chicago to 
Lockport? 

THE WITNESS: No. 






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The Trial Court in passing upon "this matter and determin- 
ing that the defendant was guilty and that the plaintiff was 
free of contributory negligence very clearly intimated that 
there probably was a great deal more drinking than the testi- 
mony actually revealed. He also intimated that there were a 
great many other places in the vicinity of the Hi Ho Club where 
this group of six could have had sandwiches and coffee without 
going to an all-night tavern and staying for an hour and a half. 
It was his conclusion that Haas was driving his car without 
lights and that was the sole contributory cause of the accident 
which precipitated this litigation. The trial court indicated 
great confidence in the integrity of the testimony of Dodge, 
the tax driver, who was entirely disinterested and observed the 
entire accident. 

Thomas Mulvey, the driver of another taxi cab, was four 
blocks south of the intersection in question when he entered 
on Highway 66A, and he testified that when he looked north he 
saw no car coming with lights. The appellant insists that Mulvey 
was too far away for this testimony to be of much value. The 
evidence shows the Haas oar had no front lights burning after 
the accident. It is contended by the appellant that this cir- 
cumstance could be well explained by the damage done to the 
front of the Haas car as the result of the impact. The record 
shows that the right lamp on this car was destroyed, but that 
the left lamp was not in any way damaged. It Is the appellant's 
contention that DeMitchell was guilty of contributory negligence, 
that he violated the terms of Sections 162, 164, 166, Chapter 
Ninety-five and a half of Illinois Revised Statutes, which reads 
as follows: 



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Sec. 162: When signal required 

M (A) No person shall turn a vehicle from 
a direct course upon a highway unless and until 
such movement can be made with reasonable safety 
and then only after giving a clearly audible 
signal by sounding the horn if any pedestrian may 
be affected by such movement or after giving an 
appropriate signal in the manner hereinafter provided 
in the event any other vehicle may be affected by 
such movement." 

H (b) A signal of intention to turn right or 
left shall be given during not less than the last 
100 feet traveled by the vehiole before turning." 
Sec. 164: Method of giving hand and arm signal. • 

"All signals herein required given by hand and 
arm shall be given from the left side of the vehicle 
in the following manner and auch signals shall 
indicate as follows: 

(1) Left turn — Hand and arm extended horizon- 
tally." 

Sec. 166: Vehicle turning left at intersection. 

"Any driver of a vehiole approaching an inter- 
section with the intent to make a left turn shall do 
so with caution and with due regard for traffic 
approaching from the opposite direction and shall not 
make such left turn until he can do so with safety." 
The trial court determined after hearing the witnesses that 
the defendant was driving his automobile on the night in question 



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wlthout lights. It has often been said a trial Judge is 
in a much better position to know where the truth lies than 
an Appellate Tribunal who have only the printed page before 
them. The trier of cases sees the witnesses as they testify, 
therefore, he is in a better position to determine whether or 
not they are telling the truth. The Judge oould observe the 
expressions on their faces, the candor with which they spoke 
and their apparent slnoerity or insincerity. 

If the defendant's car was being driven without lights, 
then DeMltchell would not be expected to give a left turn 
signal. Violation of a statute will not defeat recovery 
unless such violation is considered in connection with all the 
other facts and circumstances concerning the case establishing 
negligence, and such negligence must have proximately contributed 
to the injury. Star Brewery Co. v. Hauok, 222 111. 348; Kcnyon 
v. Chicago City Ry. Co., 235 111. 406; Graham v. Hagmann, 270 
111. 252; Jeneary v. Chicago 4 I. Traction Co., 306 111. 392; 
Moyer v. Shaw Livery Co., 205 111. App. 273; Foglesong v. 
Peoria R. T. Co., 203 111. App. 546; Marx v. Chic-'^o Daily 
News Co., 194 111. App. 322; Johnson v. Gustafson, 233 111. 
App. 216. 

In light of the foregoing observations, we are convinced 
the trial court correctly disposed of the issues involved in 
this oase, and that he entered a proper Judgment. Judgment 
affirmed. 

JUDGMENT AFFIRMED. 



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44501 

CHARLES R. ADAMS, 

Appellee, 

v. 

ALFRED SILFEN, 

Appellant, 



APPEAL FROM 
SUPERIOR COURT, 
COOK COUNTY. 



3 37I.A-. 654 ' 



MR. PRESIDING- JUSTICE FEIN3ERC DELIVERED THE OPINION OF 
THE COURT. 



Plaintiff filed his complaint against defendant 
for partnership accounting, dissolution, and the appoint- 
ment of a receiver for the partnership assets. Defendant 
filed his answer denying the existence of a partnership, 
and alleging that the relationship of the parties was only 
that of employer and employee. The cause was referred 
to a master to report his conclusions of law and fact. 
The master made his report in favor of plaintiff, to which 
exceptions were filed and overruled by the chancellor. The 
decree was entered confirming the master's report, and 
directing the form of accounting, from which decree this 
appeal is prosecuted. 

The chancellor fixed the appeal bond in the sura of 
$25,000 to operate as a supersedeas when approved and filed* 
The bond was neve - " given nor was a supersedeas applied for. 
Upon the oral argument it was admitted that the accounting 
directed by the decree has proceeded almost to a conclusion. 

The evidence is voluminous, and presents some conflict 
on the issue of the existence of a partnership. '.7e have 
reviewed the evidence and find it abundantly supports the 
master's conclusion that there was a partnership, as alleged 



2. 



in the complaint, and warrants the decree sustaining the 
masters report. 

We would not be justified upon this review to 
interfere with the master's conclusions and the decree 
entered in accordance therewith, unless we are satisfied 
that they are against the manifest weight pf th evidence. 
Pasedach v. Auw, 364 111. 491; 7. are mh ski v. Zarumbski, 382 
111.- 622, 632. 

It is urged by defendant that the decree is erroneous 
in directing the sale of the entire assets, including the 
patents which defendant claims as a contribution to the 
partnership, and entitled tc have that contribution returned 
to him unde-r Section 18 (a), Chapter 106 1/2. Illinois 
Revised Statutes, 1947, (Uniform Partnership Act*) The 
evidence clearly demonstrates that the patents in question 
were developed and procured afto^ the formation of the 
partnership and at the expense of the partnership. They are 
properly treated as a partnership asset, as any other 
accretion to the partnership assets would be regarded during 
the life of the partnership. ■ The section of the Uniform 
Partnership Act, relied upon, lias no application to these 
patents. 

The decree of the 3uperior Court is correct and is 
accordingly affirmed. 

AFFIRMED. 

Tuohy and Niemeyer, JJ., concur. 



• 



44553 

JOSEPH GREENWALD, 



Appellee, 



v« 



DAVID R. LIDSXER, 



Appellant* ) 
) 




) 

) 

) APPEAL FROM 

) MUNICIPAL COURT 



OF CHICAGO. 




& i$ f i i*A. 654 






MR. PRESIDING JUSTICE FEIN^ERG DELIVERED THE OPINION OF 
THE COURT. 



Plaintiff, a real estate broker, brought suit for 
commissions claimed to be due him for obtaining a buyer, 
rea^y, willing and able to buy certain real estate owned 
by defendant and submitted by defendant to plaintiff for 
sale. There was a.t-ial by jury and verdict for S2650 in 
favo^ of plaintiff. Judgment was entered thereon, and 
defendant appeals. 

It appears from the testimony of plaintiff that 
he is a licensed real estate broker; that he met defendant 
at the Liberty State Bank, and defendant asked plaintiff 
to offe~ for sale a piece of property defendant owned; 
that defendant then furnished plaintiff all the particulars 
concerning location, rents and taxes, necessary in submitting 
a piece of property for sale, and asked him to procure a 
buyer for $55,000; that the property was clear; that defendant 
offered to procure a mortgage for $30,000 or 335,000 to 
secure the balance of the purchase price; that he informed 
plaintiff it would be difficult for plaintiff to contact 
him at all tines, but that if he received any offer or check, 
he could submit it to defendant's brother, and that he would 
leave it to his brother to take care of it; that thereafter 
plaintiff procured a signed offer of purchase for $55,000, 



2. 

together with a check for $2,000 to apply as a deposit on the 
purchase price, the balance of $53,000 to be paid upon the 
consummation of the sale; that plaintiff thereupon took 
the offer and check to the brother of defendant and gave them 
to him; that a day £** two later defendant's brother returned 
the ch^ck and contract to him; that the property was later 
sold to another purchaser than the one procured by plaintiff. 
It was stipulated upon the trial that the fair and customary 
rate of commission in Chicago for a sale at §55,000, would 
be $2650. 

Defendant admitted that he met plaintiff at the bank; 
that he submitted the property to plaintiff for sale at the 
price of $60,000 but not $55,000, as claimed by plaintiff; 
that he told plaintiff if he procured any offer less than 
$60,000 that he need not submit the offer, that he told 
him if he wanted any further information to go to the office 
of Lidsker and Forman at 3730 West Roosevelt Road; that 
Louis Ltdiktr, his brother, was one of the firm managing 
the property for him. 

There is other conflict in the testimony of the 
parties and the witnesses, and it was within the proper 
province of the Jury to determine the facts* Having done so, 
we should not disturb the verdict and judgment unless they 
are against the manifest weight of the evidence. We think 
the record presents purely a question of fact for the Jury, 
and that the verdict is not against the manifest weight of 
the evidence. 

Defendant argues that it was error to permit plaintiff 
to testify to conversations with the brother of defendant 
without proper proof of agency. If the Jury believed plain- 



3. 

tiff's testimony, there was sufficient evidence of authority 
from defendant to plaintiff to deal with defendant's brother 
in the submission of the written offer and the check. 

It is also urged by defendant that the court erred 
in submitting to the jury the form of verdict with the 
amount $2650 inserted. There was no dispute, if plaintiff 
was entitled to recover, that that amount was the correct 
amount. It was so stipulated. Therefore, defendant was 
not prejudiced by the insertion of the amount In the form 
of verdict submitted to the jury. 

TCe find no me^it in the complaint made about the 
trial court's restriction in the cross-examination of 
plaintiff and othe^ witnesses. 

The judgment of the Municipal Court was correct 
and it is affirmed. 

AFFIRMED. 

Tuohy and Niemeyer, JJ., concur. 



t 



44677 



SAM CHANDLER, 



v« 



Appellee, 



CHICAGO TRANSIT AUTHORITY, a 
Municipal Corporation, 

Appellant* 



APPEAL FROM' 
CIRCUIT COURT, 
COOK COUNTY. 




.655 



I 



MR. PRESIDING- JUSTICE FEINBERG DELIVERED THE OPINION OF 
THE COURT. 

Plaintiff brought this action against defendant 
for personal injuries resulting from a collision between 
an automobile. in which plaintiff was riding, and defendant f s 
street car, at the intersection of Cottage Grove Avenue and 
South Parkway in Chicago. A trial with a jury resulted in 
a verdict for plaintiff for $1500» • upon which judgment was 
entered. Defendant' s. notion for a new trial was denied, 
and defendant appeals. 

Four reasons are assigned for a reversal of the 
judgment: (l)- that the verdict is contrary to the manifest 
weight of the evidence; (2) that the court should have 
granted the motion for a new trial; (3) the refusal to give 
an instruction for defendant; and (4) the refusal to submit 
a special interrogatory to the jury. 

South Parkway extends north and south, and Cottage 
Grove Avenue, upon which defendant's street car is operated, 
runs in a northwesterly and southeasterly direction, crossing 
South Parkway at 26th Street. At that point the^e is a three 
street intersection. South Parkway is divided int» two 
drives, one for southbound traffic, the other for northbound. 
In between the two driveways is a park /ay which separates 
them. 26th Street ends a short distance east of South 



2. 

Parkway. Traffic lightJg control the traffic on each of the 
streets at said intersection. Plaintiff, who was a passenger 
in the automobile, and the driver Walker, testified in 
substance that when they started crossing Cottage Grove 
Avenue the green light was with them, and that the red traffic 
light was against the street car*-. Another witness for 
plaintiff, riding in the rear seat of the automobile, 
corroborated them. Witnesses for defendant testified to 
the contrary. Upon this question of the lights there 
was a sharp conflict and therefore properly a question of 
fact for the jury. Schneiderman v. Interstate Transit 
Lines . 331 111. App. 143, Afifid, 401 111. 172; Bliss v. 
Knapp , 331 111. App. 45. 

Defendant earnestly argues that the physical facts 
demonstrated by the evidence and by a plat appearing in 
the record clearly establish that the testimony of the 
witnesses for plaintiff as to the condition of the lights 
was inherently improbable, does not overcome the evidence 
produced by defendant, and the conclusion necessarily 

y 

follows that the finding of the Jury is against the 
manifest weight of the evidence. We cannot agree with 
defendant's contention. It does not give due weight to 
all reasonable inferences to be drawn from the evidence in 
favor of plaintiff as to the condition of the lights. It 
v/as equally within the province of the Jury to determine 
whether the evidence proves the theory of defendant, that 
the witnesses for plaintiff were not in a position to see 
the green light at the time they started to cross Cottage 
Grove Avenue. The traffic light which plaintiff passed on 
South Parkway, before reaching the intersection of Cottage 
Grove Avenue, was not the only traffic light visible 






3. 

to him and the others in the car. The Jury might well 
have concluded that, at the time they entered the inter- 
section of Cottage Grove Avenue the traffic light on the 
east side of South Parkway was to the rear of them, yet 
there were other traffic lights on the corners of the 
intersection which they could have seen. Upon that 
question we cannot invade the -province of the Ju^y. 

Instruction No. 22, tendered by defendant and 
refused by the cou^t, reads as follows: 



"The court instructs the ju^y that the burden is 
upon the plaintiff to show by a preponderance 
of the evidence that he was in the exercise of 
ordinary care just before and at the time of 
the alleged accident. And the court instructs 
you that he is not relieved from that duty 
because he was riding the automobile, but the 
law is that where a person riding in an auto- 
mobile has an opportunity to lea~n of danger 
and avoid it, it is his duty to warn the 
driver of the automobile of such danger." 



A similar instruction was held bad in Bliss v. 
Kn app i 331 111. App. 45, at p. 51. Lasko v. Meier, 327 
111. App. 5. In Greene v. Citro, 298 111. App. 25, at p. 
30, this court said: 



"If a guest were required at street intersections 
to look out and warn the driver of approaching 
cars, 'a most uncomfortable and hazardous 
position might be cheated for the driver of a car 
who happened to have several passengers as guests. 1 
If all the passenger-guests should constantly be 
warning and directing the driver how to proceed 
he would be so distracted as to be unable to 
drive the car carefully. Back seat driving 
should not be encouraged. " 



Defendant argues that the court erred in refusing 

to submit the following special interrogatory: 

"'.Vas the operation of the street car at the 
time and place in question negligent?" 



4. 

We think Boss v. Curtis Publishing Co .. 282 111. 
App. 625 (Abst.), disposes of defendant's contention 
adversely to it. In that case the complaint in all counts 
charged wilful and wanton conduct. The instructions given 
required the Jury to find defendant guilty of wilful and 
wanton conduct before it could return a verdict for plaintiff, 
The defendant requested a special interrogatory which read: 

"'Tas the defendant Curtis Publishing Company, 
a Corporation, guilty of wilful and wanton 
conduct in the operation of tho automobile at 
the time and place in question?" 

This special interrogatory was refused. This court 
there said: 



"Undoubtedly, as a general rule special 
interrogatories requiring the finding of an 
ultimate fact should be submitted to the Jury on 
request of either party. , Section 65, Civil 
Practice Act. * * * The special interrogatory- 
was merely a duplicate of the ultimate question 
submitted to the Jury." 



Likewise, the special interrogatory in the instant 
case was a- mere duplication of the ultimate fact the jury 
was required to find by their verdict. 

What we have said disposes of the remaining 

question in the case - the refusal to grant a new trial. 

The judgment of the Circuit Court is affirmed. 

s 

AFFIRMED. 

Tuohy and Niemeyer, JJ., concur. 



i 



44693 



THE PEOPLE OF THE STATE OF 
ILLINOIS, 

Defendant in Error, 



v. 



NEP DOUSE, Jr., 

Plaintiff in Er^or. 







3 3TI.A. 655 



a. 



ERROR TO 
MUNICIPAL COURT 
OF CHICAGO 



MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT. 

Plaintiff in e^ror seeks to review a judgment 
entered afte 1 " a hearing on an information charging him 
with assault with a deadly weapon with intent to inflict a 
bodily injury upon the person of James Sexton* 

The court entered a finding of guilty in manner 
and form as charged in the information. This was followed 
hy a judgment orde-" on the finding of guilty, without 
specifying In the judgment order the name of the person 
assaulted, Defendant contends that the orde^ is, therefore, 
defective. It is the established rule that the entire 
record must be considered. Hoch v. The People , 219 111. 
265, 287. It appearing from the record that the information 
specifically charged an assault upon James Sexton, and 
the court having found defendant guilty in manner and 
form as charged in the information, the judgment is 
sufficient and it is therefore affirmed. 

• 

AFFIRMED, 



Feinberg, P. J., and Tuohy.,J., concur. 






ERROR TO I.DNICIPAL 
COURT OF CHICAGO 




44693 

THE PEOPLE OF THE STATE OF 
ILLINOIS, 

Defendant in Er^or, 

\ ^ 

NEP DOUSE, Jr., 

Plaintiff in E^or. 

v 



MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT. 

Defendant in e~ror appeals from a judgment entered 
after a heading on an information charging him with 
assault with a deadly weapon with intent to inflict a 
bodily injury upon the person of James Sexton, 

The court entered a finding of guilty in manner 
and form as charged in the" information. This was followed 
by a judgment order on the finding of guilty, without 
specifying in the judgment order the name of the person 
assaulted. Defendant contends that the orde^ is, therefore, 
defective. It is the established rule that the entire 
record must be considered. Hoch v. The People , 219 111. 
265, 287. It appearing from the record that the information 
specifically charged an assault upon James Sexton, and 
the cou"t having found defendant guilty in manner and 
form as Charged in the information, the judgment is 
sufficient and it is therefore affirmed. 

AFFIRMED. 



Feanberg, P. J., and Tuo'hy, J., concur. 



44724) consolidated "TV 

44725) / ^C 

ROBERT SCOBBIE AND ELAINE SCOBBIE, j 

Appellees, ) 

v. ) APPEAL FROM CIRCUIT 

) COURT COOK COUNTY 
ED BURCH, ) 

Appellant. ) 

MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF TH3 COURT. 

Defendant appeals separately from orders entered 
In an action in which two plaintiffs Joined their claims 
for damages for personal injuries based upon alleged 
negligence of defendant in the operation of an automobile. 
These appeals have been consolidated. 

Plaintiffs' actions were instituted April 14, 1948; 
sheriff's return shows that summons was served on the 
same day by leaving a copy of the summons with defendant's 
wife at his usual place of abode in the county; June 15, 
1948, order of default for want of appearance and answer 
was entered, with Judgment against defendant in the sums 
of $5,000 and $750 for the respective plaintiffs. 
Immediately upon service of execution on the Judgments he 
filed a petition supported by the affidavit of his wife 
alleging that he and his wife with their two children 
were living at 9230 Essex avenue, Chicago, until about the 
middle of January, 1948, when he separated from his wife 
and -.,<ent to live at 2829 East 93~d street, Chicago, where 
he lived continuously until after the ent-"y of Judgment 
against him. On the hearing of his motion to vacate the 
Judgment and set aside the default, he testified to 



2. 

substantially the same effect. Two witnesses corroborate 
him. None dispute him. The uncontradicted evidence is 
that at the time of the service of the summons defendant 
was living at 2829 East 93rd street and not at 9230 Essex 
avenue, where his family cortinued to reside. 2829 East 
93rd street being his actual place of residence, the 
summons was not left at his usual place of abode, as 
required by the statute. 

The judgment is reversed and the cause remanded with 
directions to vacate the default judgment and quash the 
service of "he summons. 

REVERSED AND REMANDED 

WITH DIRECTIONS TO VACATE THE 
DEFAULT JUDGMENT AND QUASH 
THE SERVICE OF SUI.U.I0NS . 

Feinberg, P. J., and Tuohy, J., concur. 



44650 



ROBERT ANDREWS, a Minor, by 
his father and next friend, 
ALEX ANDREWS, 

Appellee, 

v» 

CHICAGO TRANSIT AUTHORITY, a 
Municipal Corporation, 

Appellant. 




APPEAL FROM 



CIRCUIT COUP- A # U O 

COOK COUNTY 



6 



^ 



MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 



Plaintiff sued defendant to recover damages for 
injuries arising out of an accident which occu^ed at 103rd 
Street and Calumet Avenue, in Chicago, Illinois, at four 
o'clock P. M« , October 4, 1944. From a judgment on a verdict 
for $6,200 defendant appeals • It complains (l) that the 
verdict is against the manifest weight of the evidence; 
(2) that the damages are excessive; and (3) that there was 
e r»ror in the refusal of an instruction and in argument. 

Plaintiff, at the time of the accident, was thirteen 
years of age and a freshman at Lit. Vernon High School. He, 
accompanied by two other students, had alighted from the 
front end of an east bound bus which had stopped at the 
southwest corner of the intersection. At this point Calumet 
Avenue is 35 feet wide and 103rd Street is a four lane, 
heavily travelled highway. 

Plaintiff testified substantially to the effect that 
the bus stopped two or three inches west of the crosswalk; 
that he alighted therefrom and started to cross the street 
from south to north in froij* of the bus; that he was 
accompanied by Robert B^ow and John Fortino, his schoolmates; 



.7. 



2. 

that while they were walking in front of the bus the motor 
was gunned and the bus commenced to move forward; that he 
and his companions ran to avoid being struck; that an automobile 
driven by Hilton Silverman was approaching from the west 
proceeding in the same direction that the bus was going; that 
they jumped back to avoid being struck by the oncoming 
automobile; that his left ankle was caught under the wheel 
of the oncoming car, about two feet beyond the north or left 
side of the bus; that he was struck by the front fender of 
the automobile, was thrown to the pavement and knocked 
eight c ten feet by the impact; that he was taken to the 

Ros eland Community Hospital and D". Pape, the family 
physician, called to dress and bandage the elbows and 
knees. His knees were cut and bleeding, and his left ankle 
was swollen, broken, and "hurt ve^y much." Plaintiff's 
story was corroborated, with some discrepancies, by his two 
companions. 

Fo 1 " the defendant, the driver of the bus testified 
that the bus was at no time moved from the time that the 
plaintiff alighted therefrom until after the accident; 
that during this time the rear door of the bus was open; 
that the engine was not gunned because with the door open 
it was impossible to use the accelerator. The police 
officer testified that when he arrived at the scene after 
the accident, the bus was standing at the south curb, west 
of the west crosswalk of the intersection. Robert 
Manville, for the defendant, corroborated Fitzgerald, the 
driver of the bus, to the effect that it is impossible to 
move. the bus or gun the engine while the r Gar door is 
open. Roland Loess, a teacher in the Ryerson School, 



V 



3. 

testified that he was near the corner of 103rd Street and 
Calumet Avenue; that he saw the bus pull up and stop; that 
the boys came out of the bus; that they were pushing and 
jostling each other and suddenly darted out in front of the 
bus; that the boys cut diagonally across the intersection 
toward a store on another corner; and that the bus did not 
move from the time the boys alighted until after the 
accident happened. Silverman, driver of the car which 
struck the boy, testified that the bus was standing still 
and the boy "darted out on a slight angle " into his car. 

The evidence was sharply conflicting. If the story 
of the plaintiff, corroborated by his companions, is to be 
believed, that the bus started up while he was directly 
in front of the bus causing him to run in order to avoid 
being struck, there was a question of faot for the jury as 
to whether or not such conduct on the part of defendant was 
negligent and whether or not it proximately caused the 
accident, notwithstanding the bus did not strike the boy. 
If the story of the bus driver and defendant's corroborating 
witnesses is to be believed, then there was no negligence 
on the part of the defendant. We think that the question 
was one of fact for the jury, and are of the opinion that 
the verdict was not against the manifest weight of the 
evidence. 

On the question of damages, Dr. Joseph Pape testified, 
without contradiction, that the plaintiff suffered a fracture 
of the medial malleolus (one of the bones of the ankle); 
that it was a complete fracture; that he fi~st tried to 
reduce the fracture without surgery, manipulating it so 
he could bring it into alignment and put a cast on it; 
that he was not successful in this treatment, and four or 
five days after, he performed an operation which consisted of 



• : . 



4. 

opening up the ankle joint and sewing the ligaments 
together and then applying a cast; that, having done this, 
x-ray pictures were taken which showed that he had not 
gotten the anticipated results, and a second operation was 
necessary} that, the second time, a Vitalion metal screw 
was attached to the surfaces to hold them tight and in 
place, and the fractured bone was again put in a cast, 
where it remained for from four to six weeks; that three 
months later the pin was removed; that after the last cast 
was removed plaintiff had about 20$ or 25$ loss of movement 
in the joint; that plaintiff hod been confined to the 
hospital about four weeks before he was discharged; that 
he continued to receive treatment for at least a year; 
that two months before the t^ial an examination showed that 
this ankle continues to swell up and that it is larger 
than the othe^ ankle; that he has about 25$ impaired 
movement and a scar; and that the impaired movement of his 
ankle is a permanent condition. Under these circumstances, 
we may not submit our judgment for the jury's, and hold 
that the $6,200 verdict is not excessive. 

Defendant complains of the refusal of its tendered 
instruction which is in words as follows: 

"You are instructed that if you believe 
the defendant, Chicago Transit Authority, was 
operating its bus at the time and place in question 
in a lawful manner, and that the accident in 
question would not have occurred except for the 
negligent act of a third person, then you should 
find the defendant, Chicago Transit Authority 
not guilty, even though the plaintiff, himself, 
was not guilty of any negligence. The happening 
of an accident in itself does not in any way 
necessarily mean that the Chicago Transit 
Authority was guilty, and before you ;an find 
the said defendant guilty, you must : ind that the 
bus in question was operated neglige: bly and that 
such negligent operation, if any, wa: the proximate 
cause of the accident in question." 



5. 

It is our opinion that it was not reversible er^or to refuse 
this instruction. TCe think, under all the facts and 
circumstances here, it was confusing. The Jury might well 
have concluded from this instruction that the defendant 
would not be liable if they believed that the accident 
would not have occurred except for the negligent act of a 
third party. This would ignore the well defined rule that 
if the negligence of the defendant is the proximate cause 
of the injury, the defendant is liable even though the 
accident might not have happened except for concurring 
negligence on the part of a third person. 

Defendant complains of the argument of counsel for 
the plaintiff. We have carefully reviewed the arguments and 
are of the opinion that the statements complained of were 
made in answer' to matters referred to by the. defendant 
(Dunham v# Chicago City Ry. Co ., 178 111. App. 186), and in 
any e¥©ait, they were not such as to constitute reversible 
error. 

The Judgment of the Circuit Court of Cook County is 
therefore affirmed. 

AFFIRMED. 

Feinberg, P. J., and Niemeyer, J., concur. 



3 37I.A. 657 



I 



44687 

CONSTANCE VIRGIKELLI, 

Appellant, 

v. 

CHICAGO TRANSIT AUTHORITY, 
a Municipal Corporation, 
Appellee. 





APPEAL FROM SUPERIOR COURT, 
COOK COUNTY. 



MR, JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 

Plaintiff, a passenger, charged defendant with negli- 
gence in its operation of a streetcar in Chicago, Illinois, 
as a result of which she was injured. From a judgment on a 
verdict finding the defendant not guilty, plaintiff appeals, 
raising two points: (1) that the verdict is contrary to 
the manifest weight of the evidence, and (2) that the argu- 
ment of defendant's counsel was improper and constitutes 
prejudicial error. 

The plaintiff, a 48 year old woman, testified that 
she boarded a street car at Sheffield and Clybourn avenues 
accompanied by her grandson and sat on a seat toward the 
front of the car; that it was a cold day; that the streets 
were wet and covered with snow; that she wore galoshes; that 
shortly before reaching her destination she arose and st^od 
in front of the door on the iron step, "My fo^t was there 
and I held myself on the door, when all of a sudden they 
stopped so fast I don't know what happened. Then I found 
myself on the platform. Somebody picked me up," On cross- 
examination she said in describing the accident, "I know 
my both feet slipped, and I found myself on the flo-">r; my 
head on the iron step. I do not remember the position I 
was in as I fell"; that "the street car started to go fast 



again and then stopped pretty fast. *- x "* Then he started to 
go faster again, and stopped all of a sudden." 

The grandson testified that while the plaintiff was 
standing in the position described the streetcar sort of 
stopped and jerked and his grandmother fell and hit her 
head. On cross— examination he stated that it happened so 
fast that he could not explain how his grandmother fell 
but that the car sort of slowed down and then picked up 
and jerked. There were no other eyewitnesses to the acci- 
dent produced by the plaintiff. 

For the defendant, the motorman of the car testi- 
fied that the car was being operated in a normal wayj that 
there were no vehicles in front of the streetcar; that he 
was not stepped in the middle of the block; that he heard 
the woman fall. He was corroborated by the conductor and 
by a United States Post Office letter carrier who was a 
passenger on the car. The latter testified that the door 
leading from the inside of the car to the front platform 
opened up and a woman started tc step out, that "she no 
sooner stepped out and she was laying on the floor. It 
happened very quickly." He stated that at the time she 
fell there was no traffic ahead, the street was clear, and 
the car was going along slowly at an even speed. 

Clearly from the testimony it was a question of 
fact for the jury to decide whether or not the streetcar 
was being operated in a negligent manner, and we are unable 
to say that the verdict was against the manifest weight of 



~3~ 

the evidence under all the facts and circumstances. 

Complaint is made of the argument of defendant's 
counsel to the jury in several particulars, upon only one 
of which we deem it necessary to comment; and that is this 
language: "Now, ladies and gentlemen, in operating street- 
cars, after all they are yours, the Transit Authority. I 
don't knew how a company can survive or exist for long if 
on such evidence one can come in on their word alone and say 
that a streetcar in the middle of the block gave a sudden 
lurch and jerk, causing me to fall and damaging. I want 
large sums of money. On that evidence, they cannot survive. 
They cannot endure; cannot give any service at all if those 
things prevail," We do not consider this proper argument. 
There is no proof in the record that the Transit Authority 
"are yours," The jury in arriving at the verdict were 
entitled to take into consideration only the evidence and 
the lav/ as applied tc the evidence and such an appeal to 
their self-interest is to he disapproved. However, no 
objections to this argument were made at the trial, and no 
reason is here urged that would take the case out of the 
rule (Pik e v. City of Chica gq, 155 111. 656) that objections 
not raised below may not be considered here. 

Accordingly, the judgment of the Superior Court is 
affirmed, 

JUDGMENT AFFIRIED, 
Feinberg, P. J t j and Niemeyer, J,, concur. 



44728 

JAMES F. KOHOUT, 

v. 

CHARLES BLOOM, 



Appellee^ 



Appellant. 




3S7I.A. 657 



^ 



APPEAL FROM 
SUPERIOR COURT 
COOX COUNTY 



MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. 



Plaintiff brought suit in forcible entry and 
detainer against defendant for possession of a residence 
in Cicero, Illinois, on July 1, 1948 before a Justice of 

i 

the Peace* On appeal to the Superior Cou^t from a judgment 
for possession, plaintiff filed a motion for summary 
judgment supported by an affidavit, to which defendant 
filed a sworn counter affidavit. From a judgment for 
possession in favor of the plaintiff entered upon these 
pleadings, defendant appeals. 

Plaintiff, the owner of the premises, contends that 
he seeks possession for the immediate and personal use and 
occupancy as a residence for his son and his son's family. 
Defendant contends that under the Housing and Rent Act 
plaintiff must state that he seeks possession M in good faith"; 
that he failed to so allege; and that the defendant's affida- 
vit raises a question of fact which should be submitted 
to a jury as to whether* or not the demand is made in good 
faith. 

Supreme Court Rule 15 relating to affidavits in 
proceedings for summary judgment (ill. Rev. Stat. 1947, 
Chap. 110, Pan% 259.15) is in part as follows: 



2. 



"(1) Affidavits in support of and in 
opposition to a motion by plaintiff or defendant 
for summary judgment or decree shall be made on 
the personal knowledge of the affiants; shall 
set forth with particularity the facts upon which 
the claim, counterclaim or defense is based; shall 
have attached thereto sworn or certified copies 
of all papers upon \7hich the pa^ty relies; shall 
not consist of conclusions but of such facts as 
would be admissible in evidence; and shall 
affirmatively show that the affiant if sworn as 
a witness, can testify competently thereto. If 
all the facts to be shown are not within the personal 
knowledge of one person, two or more affidavits 
shall be used." 



The plaintiff's affidavit in the instant ca s e, after 
alleging the service of notice of termination of tenancy, 
states substantially that he desires to recover possession 
of the house for the. immediate and personal use and occupancy 
of his son, James G-. Kohout, and his son's wife and child; 
that the son and family at the time of the service of the 
notice were residing in a six-room flat with the son's 
wife's mother, brcther, two sisters, brother-in-law and 
nephew, a total of nine persons. Plaintiff's son filed an 
affidavit stating that he, his wife, and child are now 
living with his mother-in-law and five other adults; that he 
desires to live in the second floor flat of his father's 
property because of the crowded conditions under which he is 
now compelled to live. 

The sworn counter affidavit, or as it is entitled, 
"Answer to Motion for Summary Judgment," asserts that the 
notice of the termination of tenancy is defective in that 
it does not recite that the plaintiff "in good faith is 
seeking possession of the premises." He denies that plain- 
tiff desires to recover possession for the immediate and 
personal use and occupancy of his son, citing the fact that 



3. 

the son has lived with his mother-in-law for three years 
under the same conditions that now exist. He says, 
"plaintiff has often complained that the said premises 
are not bringing enough rent, and if the plaintiff is 
successful in securing said premises he will make an effort 
to derive far more revenue from said apartment." The 
affidavit points out certain expenses which were incurred 
by the defendant's brother in decorating the premises. 
He says, "plaintiff has displayed continued animosity towards 
Louis LI. Bloom and his family, and that because of this 
feeling of bitter animosity. plaintiff desires to obtain 
possession of said premises." He states that the son could 
have had an apartment at an earlier date and refused it, 
that "if the son is living with his mother-in-law it is 
because of the desire to do so, as he had an opportunity to 
rent an apartment but refused it." 

Defendant's objection .to the effect that plaintiff 
does not state that he seeks recovery of the premises 
"in good faith" is without merit. The allegations in 
plaintiff 1 s affidavit show the purpose for which the 
premises is desired. The statement of the conclusion that 
he desired the premises "in good faith" would add nothing 
to the facts alleged. If plaintiff wishes the premises for 
occupancy by his son's family because of the fact that they 
are now living under undesirable or unpleasant conditions, 
that in our opinion is sufficient ground to comply with the 
good faith requirement of the housing act. No allegations 
are contained in the answer to rebut these sworn statements 
of the plaintiff. The mere denial that plaintiff desires 
to recover possession is a conclusion which violates 



4. 

Supreme Court Rule 15, suora. The fact that the son had been 
living with his mother-in-law for three years under the same 
conditions that exist at present raises no question of fact 
as to lack of good faith. Neither does the fact that there 
may he some personal animosity existing between plaintiff 
and defendant. The allegation "that plaintiff has often 
complained that the said premises are not bringing enough 
rent" would not be admissible in evidence as tending to 
prove that plaintiff in bad faith sought possession of the 
premises. 

We have examined the entire answer and are of the 
opinion that it consists of conclusions of such facts as 
would not be admissible in evidence upon a t^ial. In the 
case of Killian v. Welfare Engineering Co. , 328 111. App. 
375, the court, quoting from the case of Shirley v. Ellis 
Prior Co ., 310 111. App. 51?, said: 



"•The cou^t takes the affidavit of the 
plaintiffs and the affidavit of the defendant, 
compares both of them precisely as if the 
affidavits represented oral evidence of witnesses 
appearing on the witness stand, and then determines 
whether, if the evidence contained in the affidavits 
was orally submitted to the ©ourt, there would be 
something left to go to the jury. ... If there 
would be nothing left to go to the jury, and 
the court would be required to direct a verdict, 
then a summary judgment will be entered. 1 " 



We are of the opinion that there are no issues of 
fact raised by the counter affidavit here which would 
justify their submission to a jury. Accordingly, the judgment 
of the Superior Court of Cook County is affiled. 

AFFIRMED. 

Feinberg, P. J., and Niemourer, J., concur. 



3 37I.A. 



44463 

JO HI PIFF, 

Plaintiff - Appellee, 




APPEAL FROM 




v. . ) CIRCUIT COURT 

GEORGE P. BERRESHEIM, etc., JAMES 

P. HARDING, JOHN H. SASSER and ) COOK COUNTY. 

MARY ROSE BRUMMEL, . ) 

Defendants - Appellants. ) 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT. 

John Piff filed a complaint in chancery and an 
additional count thereto in the Circuit Court of Cook County 
against various. defendants. By amendments the case continued 
against James P. Harding, Otto Mowry, John H. Sasser, Mary 
Rose Brummel and George Berresheim, Individually and as 
successor trustee. Plaintiff alleged that on August 20, 1931, 
he contracted with the Foreman Trust and Savings Bank, as 
trustee, under Trust No. 4950, to purchase lots 9 and 10 in 
block 10 in.Homerican Villas for $3,360; that he was credited 
with $2,240.06 for an equity in a .contract dated August 20, 
1928; that he completed his payments on June 27, 1933, and 
became entitled to a deed; that the bank became insolvent; 

that defendant, George P. Berresheim, became successor trustee; 
that from March 26, 1942, to October 4, 1945, plaintiff was 
in the military service; and that on October 30, 1944, 
Berresheim, as successor trustee, conveyed lots 9 and 10 in 
block 10 to Paul D. Angell. Plaintiff listed amounts which 
he paid for taxes beginning June. 5, 1930, the last of euoh 
payments being made July 6, 1933. The payments plaintiff 



alleges were made after he entered. into the contract of 
August 20, 1931, aggregate $100.50. He alleges that the 56 
lots in the subdivision were sold by Berresheim, the successor 
trustee, for $3,685, including plaintiff's 2 lots. The 
successor trustee agreed to pay a broker's commission of b%% 
Plaintiff further avers that the other defendants authorized 
and directed Berresheim to make the deal xtfhereby the real 
estate was conveyed to Paul D. Angell; that the persons who 
so authorized the conveyance of the real estate shared in 
the purchase price; and that plaintiff is entitled to an 
accounting and to a decree requiring the defendants to pay 
to him the total of the amounts paid by hlmk with interest 
thereon., 

James P. Harding, Otto D. Mowry, John H. Sasser and 
Mary Rose Brummel filed an answer, the allegations of which 
Berresheim afterwards adopted. They. allege that the trust 
was formed by Fred Brummel or John P. Harding, or both; that 
Fred Brummel _ died in 1941; that John P. Harding died in 1943; 
that James P. Harding succeeded to the interest of John P. 
Harding; that the other defendants, except Berresheim, succeed- 
ed to the interest of Fred, Brummel; and that all the records 
of Fred Brummel and John P. Harding, and of the Foreman Trust 
and Savings Bank had been destroyed. Defendants denied that 
plaintiff had made the payments. Defendants, except Berresheim, 
also denied the alleged payments for taxes. Berresheim admitted 
that the payments made and endorsed upon the contract were made. 
Defendants alleged that they had no notice or knowledge of 
plaintiff's claim until after the lots had been conveyed to 
Angell. The answer sets up-/, laches , the five year statute of 



S 






i* 



-3- 

limitations and the ten year statute of limitations; that 
plaintiff had abandoned the property, or that a deed had 
been executed and withheld from record by plaintiff. In 
their original answer the defendants, except Berresheim, 
admitted that the lots purchased by plaintiff were not con- 
veyed to him, denied any repudiation of contract, tendered 
to him, plaintiff, a deed of conveyance for the lots and 
offered, at the direction of the court, to deliver the deed 
to plaintiff in open court. In a subsequent answer filed by 
these defendants they did not allude to their previous offer 
to deliver a deed. The answer further alleged that $185 was 
realized from the 2 lots. Berresheim stated that he acted 
purely as a clerk, that he never had any interest in the land, 
and that he had nothing in his hands as successor trustee. 
The court struck. out all of the allegations except the alle- 
gation of laches . In a reply plaintiff alleged that the 

defendants might ascertain his interest from the public 
records showing that he paid taxes on July 6, 1933; that on 
June 27, 1933 Berresheim stated to him, plaintiff, that the 
deed conveying the 2 lots would be mailed to him; that two 
or three months later Berresheim told plaintiff that Berrsheira's 
■principal was going to try to pay the special assessments on 
all the lots in the subdivision, which would save the owners 
about one half the amount due. This reply was ordered to 
stand as the reply to Berresheim. The case was heard before 
the chancellor, who entered a decree that plaintiff have judg- 
ment against defendants for $7,478.26. Defendants appealed. 



-4- 

The contract was made by Foreman Trust and Savings 

Bank, as trustee, under the provisions of a trust agreement 
dated October 17, 1927 and known as trust No. 4950* It was 
signed by the trustee as vendor and by the vendee, the vendor 
signing by. Fred W. Brummel Company, as agent, by George J. 
Berresheim. The contract does not disclose the names of the 
beneficiaries of the trust. Berresheim afterwards became 
successor in trust to the bank and his name is signed to the 
receipts for payments endorsed on the contract on and subse- 
quent to October 20, 1932, and to many other receipts before 
that date, and to the acknowledgment of full payment of the 
• purchase orice on June 27, 1933. Defendants xirere beneficiaries 
of the land trust because they so recited in the directions 
which they gave to the successor trustee, but when and how 
they became such is not shown. Paragraph 6 of the contract 
provides that all the covenants and agreements therein contain- 
ed shall extend to and be obligatory upon the heirs, executors, 

administrators, successors and assigns of the respective parties. 

Plaintiff alleged that Berresheim gave an option on 
56 lots, at a total price of -$3,685. Berresheim agreed to pay 
James G-. Lawrence a 5% commission. The option was exercised. 
Lawrence testified that he sold the lots and that the value 
was about $40 per front foot. The unpaid general taxes per 
lot are $240. The unpaid special assessments run from $1,500 
to $2,200 per lot. Lawrence stated that he sold them at a 
price of $2. a foot, subject to general taxes and general 
assessments. From the record it is fair to say that lots 9 
and 10 in block 10, each with a 40 foot frontage, yielded 
$160 gross, less $8 commission, or $152 net. Plaintiff testi- 
fied that about two months after June 27, 1933, when he made 






-5- 

his last payment, he asked Berresheim for the deed; that the 

ii 
latter informed him that "the company was going to buy up 

the special assessments and that they.vrere going to pass the 
benefit thereof on to the land owners. In reply to the ques- 
tion: "What did you say in response to that?" plaintiff 
answered: "Well, it was all right because during that time 
you know there was depression, and so on"; and that he did 
not see Berresheim again. It xv'as stipulated that both John 
P. Harding and Fred Brummel were dead. Plaintiff's contract 
contains no provision exonerating the trustee from personal 
liability. The gross value of the trust assets was $3,685. 
The first point advanced by defendants is that 

neither the beneficiaries nor the successor trustee are liable 
for the sums paid by plaintiff. to Fred Brummel or to the 
Foreman Trust and Savings Bank. In Bishop v. Bucklen, 390 
111.. 176, the court held that it is the rule in this state 
that a trustee is personally liable unless he expressly 
contracts against such liability. The contract on which plain- 
tiff relies contains no provision exonerating the trustee from 
liability. The Foreman Trust and Savings Bank was not exon- 
erated from personal liability, Berresheim was acting as a 
clerk for Fred Brummel. The evidence does not show that any 
money was ever received by the trust. It is not contended 
that any of plaintiff's money was in the trust when Berresheim 
became successor trustee. It does not appear that any of 
plaintiff's money xvas ever received by any of the defendants. 
Where the successor in interest to the vendor has not under- 
taken to perform the contract, or to save the vendor harmless, 
he is not liable except for the funds which he received. 



-6- 

While Berresheim receipted for 14 of the payments, he did so 

as a clerk. All payments were made to Fred W. Brummel 

Company, his employer. A servant cannot be held for money 

received by him and delivered to his principal. 

Plaintiff argues that the clause in paragraph 6 of 
the contract that the covenants and agreements therein con- 
tained "shall extend to and be obligatory upon the heirs, 
executors, administrators, successors and assigns of the 
respective parties hereto" makes defendants liable. This 
clause, in the absence of an assumption of the contract, 
imposes np obligation upon the assignee of . the. vendor. . 
Bimrose . v. Matthews , 138 Pac. 319, 78 Wash. 32,. Baker v. Zang, 
275 111. App. 146. In Kneberg v. Green , 89 Fed. (2d) 100, 
the court, in speaking of the effect of this clause said that 
"the courts quite generally agree that the clause mentioned 
does not of itself impose an obligation upon the assignee to 
perform the contract." See also Southern Pacific Go . v, 
Butterfjeld , 39 Nev..l77, 154, Pac. .932; Lisenby v.. Newton, 
120 Cal..571, 52 Pac. 813; Hugel v. Habel, 132 App. Div. 
117 N. Y. S. 78. 

The second point urged by defendants is that plain- 
tiff cannot recover because he is guilty of laches . He 
waited from June 27, 1933 to March 26, 1942, when he entered 
the military service, a period of 8 years and 9 months. In 
the meantime, all the records were destroyed and the principals 
are dead. He could have had his deed at any time during this 
period. He has not paid any taxes on the real estate since 
July 6, 1933. After his conversation with Berresheim in 
August, 1933, he did not make any further inquiry. We find 
that under the circumstances the plaintiff. is also barred 
from recovery under the doctrine of laches . 



-7- 

Plaintiff stated that defendants tendered a deed to 

him; that at the hearing defendants' attorneys admitted they 
were unable to make the tender good; that thereby defendants 
collectively admitted that plaintiff was entitled to a deed; 
and that he was not barred by any statute of limitations or 
laches . It is true that defendants Mowry, Sasser and 3rummel 
alleged in their "answer filed March 27, 1947, that they ten- 
dered a deed. By leave of court the answer was subsequently 
withdrawn. They then filed an amended answer in which the 
offer was omitted. Plaintiff did not throughout the hearing 
indicate that he would accept a deed. James P. Harding did 
not tender a deed, nor did Berresheim tender a deed. A tender 
made in a pleading is conclusive upon the pleader so long as 
the pleading remains in force. If the pleading is supplanted 
with another pleading in which the tender, is not made, the 
allegation of tender has no further force. It may, however, 

r — r ; — - A — r 5j. 

be offered in evidence as an admission of the party. In the 
instant case it was. not offered in evidence. See Ni black v, 
Adler , 209.111. App. 156, There is no merit in plaintiff's 
contention. 

Plaintiff states that defendants' points should not 
be considered because of. their failure to specify the errors 
relied upon for reversal. In Trust Company of Chicago v, 
Iroouols Auto Ins. Co ., 285 111. App. 317, we held that 
assignments of error should not be placed in the. brief. See 
also Stein v. Midway Chevrolet Co ., 315 111. App, 105, and 
Pape v. Pareti, 315 111, App. 1. 




-8- 

For the reasons stated the decree of the Circuit 
Court of Cook County is reversed and the cause is remanded 
with directions to dismiss the complaint for want of equity, 

DECREE REVERSED AND CAUSE 
REMANDED *iITH DIRECTIONS. 

KILEY AND LEWE, JJ. CONCUR. 



/> 

3 37I.A.609 1 

THEODORE HARCK, ) 

) APPEAL FROM 
Appellee, ) 

v. ) CIRCUIT COURT 

THE BORDEN COMPANY, a corporation, ) 

and ELMER HARTFORD, . ) COOK COUNTY. 

( 
Appellants. ) 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE 

COURT. 

Theodore Harck filed a complaint in the Circuit Court 
of Cook County against The Borden Company, a corporation, and 
Elmer Hartford to recover for personal injuries sustained in 
a traffic mishap. A trial by jury resulted in a verdict 
against the two defendants for $2,500. Defendants' motions 
for a directed verdict, for judgment notwithstanding the 
verdict and for a new trial were denied. Judgment was 
entered on the verdict and defendants appealed. The scene 
of the occurrence was. at the intersection of Sangamon and 
69th Streets, Chicago. It is a business district, with 
stores on all except the northwest corner of the intersection. 
On the northwest corner there was a large gas station and 
immediately adjoining it on the west was a funeral home. 
The east wall of the funeral. home is 80 feet west of the 
west curb of Sangamon Street. Sixty-ninth Street, 42 feet, 
2 inches wide, runs in an easterly and westerly direction, 
is paved with brick or granite blocks and has laid thereon 
westbound and eastbound streetcar tracks. The north rail of 
the westbound car tracks is 13 feet, 5 inches from the north 
curb. Sangamon Street, 30 feet, 4 inches wide, is paved 



-2- 

with asphalt, runs north and south and intersects 69%h 
Street. At the southeast, southwest and northwest corners 

of the intersection the curb has a curvature of rather 
substantial radius, but on the northeast corner the east 
curb of Sangamon gtreet and the north curb of 69th Street 
meet in almost a right angle, the curvature at their junction 
having a radius of a little over one.fopt. 

The mishap occurred at 7:30 A. M. on Tuesday, July 16, 
1946. The sun was shining and visibility was good. Plain- 
tiff, 23 years old, lived at 7249 Indiana Avenue, Chicago, 
about 2 miles southeast of the place of occurrence. He 
worked at a plant a little over 5 miles north and 3-1/2 miles 
west of his home, making the total distance from his home to 
work 8-1/2 miles. He had been riding a motorcycle to work 
for 3 months prior to the mishap. It took him 30 to 35 
minutes to go from his home to the place '.'here he worked. He 
was scheduled to commence work at 8:00 A, M. He could not 
remember whether prior to July 16, 1946, he had passed the 
intersection of Sangamon and 69th Streets, or whether he had 
turned off before reaching it. He would use the route where 
the traffic was less. BeUreen 7:00 and 7:15 A. M. on July 
16, 1946, he left his home for x^ork, riding his motorcycle, 
which was rather new and in good condition. On its left 
handlegrip was the accelerator, which was operated by Wist- 
ing it. The clutch was also on the left side. There were 
two brakes, both on the right side, one being on the right 
handlebar. The motorcycle had 4 gears. It was equipped 
with a pair of 1§ inch tubular steel protector bars toward 



-3- 

the front, and another pair to the rear. The. purpose of the 
front bar tias to protect the leg of the rider. Under the 
handlebars, at the rider's knee level, the forward pair pro- 
jected straight out horizontally from the frame of the motor- 
cycle a foot and a half or two on each side, to make the 
total width of the motorcycle at. this point 3% or 4 feet, or 
the same width as the handlebars. At their outer limits the 
protector bars turned and descended until they reached a 
point about one inch below the floorboard, on which the 
rider' s foot rested, and then they turned in to the frame of 
the motorcycle. These forward bars were about 6 to 8 
inches ahead of the rider's leg and projected outward from 
the frame of the. motorcycle more than twice as far as the 
leg of the rider. The rear protector bars were back of the 
seat and were substantially similar to the f orward pair, 
except that the rear pair projected out from the frame a few 
inches less than the front pair. 

On the morning of the occurrence plaintiff stopped at 
a ba.kery 4 or 5 blocks east of Sangamon Street and then pro- 
ceded west on 69th Street, traveling down the middle of the 
westbound car tracks. He believed there were a few cars 
parked along the curb in the block immediately east of 
Sangamon Street. Traffic was heavy. When he was about a 
block away he noticed the traffic at 69th and Sangamon Streets. 
There was a westbound streetcar standing at Sangamon Street 
taking on passengers. A westbound Borden truck. was standing 
in the tracks immediately back of the streetcar. The truck 
was a o% ton wholesale milk truck, 7 feet, 6 inches wide, 
solid in back, sp that only outside rear view mirrors gave a 
view to the rear. Plaintiff testified that he did not re- 
member any cars being between him and the truck. Defendants 1 



-4- 

witness, Albert W. Opel, testified that he was driving west, 
just behind the truck. As plaintiff traversed the last block 
east of Sangamon Street he intended to turn north on 
Sangamon Street to avoid the 69th Street traffic. T .tfhen he 
was half a block or more east of Sangamon Street the street- 
car started and the truck, a little late in starting, started 
slowly. The streetcar pulled away from the track. The truck 
moved toward the south, across the track, so that its wheels 
were straddling the inside rail. Plaintiff concluded the 
truck was going to turn south on Sangamon Street and there- 
upon he decided to pass the truck and continue west on 69th 
Street. He had been watching the truck for a signal from the 
driver, but none was given at any time. At a point about 50 
feet east of Sangamon Street plaintiff turned to the right 
from his previous line of travel down the middle of the west- 
bound car tracks, and passed around the rear of the truck to 
a line of travel between the north rail and the north curb of 
69th Street, about a foot or two closer to the rail than to 
the curb. There was no evidence that plaintiff gave any 
signal of his intention to pass the truck. 

At the intersection the truck made a sharp turn to 
the north and the right front corner of the truck struck 
plaintiff's left leg. Plaintiff did not know until after the 
occurrence that the truck was going to turn north. Plain- 
tiff's injury was a fracture of the fibula, about half way 
between the knee and the ankle, without any breaking of the 

flesh. The truck did not come in contact with any part of 
the motorcycle. The protector bar on the left side was not 



-5- 

bent or marked. Plaintiff testified that his motorcycle was 
damaged very slightly. The foot pedal on which plaintiff's 
foot rested was slightly bent. Plaintiff finally brought 
his machine to a stop with the right pedal against the curb, 
supporting the machine. Plaintiff testified that in the 
last 100 feet before the impact he did not twist his 
accelerator in either direction. He said he believed that 
either just before the mishap or during the mishap, he could 
not remember which, he had let up on the gas and put his 
motorc3' , cle in second gear, and that he knew that it was in 
second gear during the mishap. Plaintiff was not thrown 
from his motorcycle. He testified: "I was swayed. There 
was quite an impact on my left leg, and it sort of swayed 
the whole motorcycle. I swerved, regained control and drove 
half a block down and stopped." He testified that he stopped 
with his gear, and that he could not operate his clutch. He 
did not claim any inability to use either of the two brakes. 

He further testified he stopped his motorcycle, still in an 
upright position, about half x^ay between the funeral home 
and the gas station, and explained that by half way he meant 
closer to the funeral home than to the gas station. Accord- 
ing to plaintiff's Exhibit 3, a plat of the scene, the closest 
point of the funeral home is 102 to 1J.0 feet west of the 
point where the truck turned into him. 

The truck driver, Elmer Hartford, testified that he 
xiras going betxireen 5 and 12 miles per hour; that he looked in 
his two rear vision mirrors, one on the outside of the truck 
on either side; that he saw no traffic and therefore gave no 
signal of intention to turn; that almost immediately upon 
turning he felt an impact, at which time he had turned north 



-6- 

from his original westerly line of travel, not more than 3 
feet; and that after the impact he moved 5 feet or less be- 
fore bringing his truck to a stop at a point where the front 
end was about even vrlth the north curb of 69th Street and that 
the motorcycle moved about 80 feet after the impact. Apart, 
from the two drivers, there were two eyewitnesses, Albert ','/. 
Opel and Albert L. Froling, both of whom were called in be- 
half of defendants, and from each of whom an investigator 
for plaintiff's attorney took a statement aoon after the 
occurrence. Opel testified that he was driving west on 69th 
Street and that ivhen he was about 75 feet east of Sangamon 
Street he saw the Borden truck about 75 feet ahead, standing 
still. On direct examination he stated that his own speed 
was 10 or 12 miles per hour, but on cross-examination he re- 
called that in a statement given soon after the occurrence 
to an investigator for plaintiff ' s. attorney, he said he was 
going from 15 to 18 miles per hour. This witness stated that 
the truck stood for not more than 5 or 6 seconds, and that he, 
Opel, first became aware of plaintiff s motorcycle after the 
truck started to move. His attention was called to the motor- 
cycle by both seeing and hearing it alongside his automobile 
on the. right side. Opel stooped so that he would not be in- 
volved. He saw the impact and olaced it on a line with the 
north curb of 69th Street and 7 or 8 feet west of the east 
curb of Sangamon Street. He stated that after the occurrence 
the motorcycle stopped about 30 or 35 feet away from the 
truck. More specifically, he identified the place where it 
stooped as about 25 feet west of the west curb line of 
Sangamon Street. 



-7- 

Albert L. Froling saw the occurrence while standing 
in a tavern on the northeast corner of Sangamon and 69th 
Streets, looking out the window to the south. His position 
was about 12 feet north of the north curb of 69th Street. 
He saw the streetcar and. the truck and then saxv the motorcycle 
trying to pass the truck. He testified that when the truck 
reached the east curb line of Sangamon Street it made a right 
turn, and that at that time the motorcycle came along between 
the rail and the curb and that the Wo vehicles came together 
at the corner. He did not actually see the impact. He testi- 
fied further that there was a sewer about 8 or 10 feet east 
of where the truck was turning; that it was immediately east 
of the east crosswalk on Sangamon Street and directly in line 
in front of the tavern; that it extended out in the street a 
foot and a half or two from the north curb; that the curb 
adjacent tc the sewer was 6 or 7 inches high; that to the west 
of the sewer the surface of the 69th Street pavement was built 
up to about level with the top of the curb; that when the 
motorcycle reached the place where the sewer was, both the 
motorcycle and the rider bounced; that he believed it then 
started to swerve. He assumed that the motorcycle hit the 
sewer, but acknoi^ledged that it might have hit some other 
rough surface in the pavement at that point. He stated further: 
"He was going fast. Well, I don't know exactly hoxir fast, but 
he was cutting around the truck, and when he hit the sewer. I 
noticed the motorcycle bounce and he started swerving then." 
He testified further that after the impact the motorcycle 
weaved west on 69th Street and that it finally stopped 100 to 
125 feet beyond the point of impact and in front of the under- 
taking oarlor. 



-8- 

Defen&ants concede that the question of their negli- . 
gence is one on which the jury night have concluded as it did. 
The burden was on the plaintiff to prove that he was in the 
exercise of due care and caution for his own safety. This 
burden is not met by the absence of evidence or by evidence 
that equally infers two inconsistent conclusions. Defendants 
maintain that plaintiff failed to sustain the burden of prov- 
ing that he was operating his motorcycle under proper control 
and at a reasonable rate of speed in view of the conditions 
prevailing at the intersection; that there is no evidence 
that he was operating his motorcycle at a reasonable rate of 
speed; and that the evidence shows, instead, that he was 
driving at an excessive speed and without having his vehicle 
under proper control. Defendants state that as there is no 
evidence tending to support an essential element of plain- 
tiff's case, the. judgment should be reversed and a judgment, 
entered for them. They call attention to the fact that Sec. 
49 of the Uniform. Act Regulating Traffic on Highways (Par. 
146, Ch. 95-|, 111. Rev. Stat. 1947) specifies that in a 
>•■ business district, such as the scene of this occurrence, any 

speed in excess of 20 miles per hour is prima facie excessive; 
that plaintiff, as part of his burden of proof, should have 
shown the speed at which he was driving; and that if he was 
exceeding 20 miles per hour, then the burden was. also upon 
him to shew that his actual speed was reasonable. Defendants, 
citing Sec. 57 of the same act (.Par. 154, Ch. 95%, 111. Rev. 
Stat. 1947) that one vehicle may pass another traveling in 
the same direction on the right hand side if the roadway is 
of sufficient width to permit such movement to be made in 



/ 



-9- 

safety, assert that there was evidence that the street was 
wide enough for plaintiff to pass on the right, but there 
was no evidence that the movement could be made in safety; 
that there was ^evidence that when he was 50 feet east of 
Sangamon Street plaintiff concluded that the truck was going 
to turn to the south, but there was no evidence of any 
exercise of due care on his part from that point up to the 
point of impact; and that proper observation and care on 

his part would have prevented the mishap, which is shown r "^ 
by the fact that just as plaintiff drew alongside the car 
of Opel, the latter saw that there was going to be an 
"accident" and stopped his car in time to avoid being in- 
volved. 

Plaintiff calls attention to Sec. 62 of the same act, 
(Par. 159, Ch. 95§, 111. Rev. Stat. 1947) which provides 
that the driver of a vehicle intending to turn at an inter- 
section shall do as follows: 

"Both the approach for a right turn and a right 

turn shall be made as close as practical to the right hand 
curb or edge of the roadway." 

He also calls attention to Sec. 65 (Par. 162, Ch. 95i, 111. 

Rev. Stat. 1947), which provides that no person shall turn 

a vehicle from a direct course upon a highway unless and 

until such movement can be made with reasonable safety, and 

after giving an appropriate signal in the manner thereinafter 

provided in the event any other vehicle may be affected by 

such movement, and that a signal or intention to turn right 

or left shall be given not less than the last 100 feet 

traveled by the vehicle before turning. No attempt was. made 

by defendants to comply with either of these enactments. In 



'.'. ■",• J :.." 



-10- 

our opinion the jury had a right to find that the sole cause 
of the mishap was the violation of the two last mentioned 
sections of the statute. At the request of defendants the 
following special Interrogatory was submitted to the jury: 
"Could the plaintiff, by the exercise of ordinary care for 
his own safety, under all the circumstances which you find 

from the evidence, surrounded him at the time of the accl- 
dent, have avoided the accident and injuries complained of?" 
The jury answered this interrogatory in the negative. No 
point is made that the interrogatory is not supported by 
the evidence. Our view is that the Jury had a right to find 
that the plaintiff in driving his. motorcycle along 69th 
Street did not violate either Sec. 49 or 57 of the Uniform 
Act Regulating Traffic on Highways, 

We agree with plaintiff that there i^as evidence that 
he exercised due care for his own safety. Plaintiff testified 
that he observed the traffic at the corner when he was a 
block, away; that as he traveled this block he was observing 
the truck; that during that period he was slowing down; that 
when the truck started up it started south across the tracks; 
that this action of the truck caused him to believe that it 
was going to turn to the south; and that he therefore attempt- 
ed to go around the truck on the right. He stated that until 
the time he turned out to go around the truck, he watahed for 
a signal from the truck driver and that none was given. He 
also stated that after he was struck on his left leg he main- 
tained control of the motorcycle and ran it over to the curb 
and that the motorcycle at no time fell over. 









We agree with plaintiff that defendants are 
estopped to complain because the record is silent as to 
plaintiff's rate of speed. During the trial Opel, one of 
defendants' witnesses, testified that immediately before the 
occurrence plaintiff's motorcycle passed his car. On direct 
examination he was asked: "Now then, did you see a motorcycle 
there?" and answered: "I didn't at that moment." He was 
then asked: '.'Did you thereafter?" to which he answered: "I 
certainly did." He was then asked: "Where was it when you 
first saw it?" to x^hich he answered: "Alongside of me." He 
was then asked: "Was your attention directed to it by seeing 
it or by hearing it or by something else?" to which he 
answered: "Both seeing and hearing it." To the question: 
"What did you hear?!' he answered: "I heard the roar of a 
motorcycle go by me." He was then asked: "And then what did 
you see?" to which he answered: "I saw a collision," On 
direct examination witness further testified that he had 
driven automobiles for 30 years and could estimate the speed 
of motor vehicles. He gave his opinion as to the speed of 
the truck. On cross-examination witness said he (Opel) was 
going "real slow, about 10. or 12 miles an hour, not any faster, 
and he just started to run." On cross-examination he was 
asked: "All right, could you give us an opinion as to the 
speed the motorcycle was going?" An objection by the attorney 
for defendants that the question was not proper cross-examinatio 
was sustained. Defendant has cited cases holding that an 



m 

estimate of speed may not be based upon the exhaust of the 
automobile or. the noise made by it as it approaches the scene 
of the mishap. In the instant case the witness testified 
that he saw and heard the motorcycle. He described its 

movements. up to the time of the occurrence and until it came 
to a stop. It is reasonable to infer from his direct exam- 
ination that the witness heard the roar of the motorcycle 
and saw it as it went by him and that at that time the motor- 
cycle was moving faster than witness' car. If the intent 
of the plaintiff in asking the question which elicited the 
answer that he heard the roar of the motorcycle go "by me" 
was not to give an impression as to the speed at which the 
motorcycle was being driven, then.it is difficult to under- 
stand the purpose of the question. We find that the cases 
cited by defendant are not applicable to the factual situation 

presented by the record in this case. We are of the opinion 
that Opel, when testifying that the motorcycle passed his car 
with a roar, might leave the impression on the jury that the 
"roar" .was caused by the speed at which the motorcycle was 
moving. Cross-examination should not be unduly restricted. 
Under the circumstances, 



\ 



-11- 



V 



¥e agree with plaintiff that defendants are estopped 
to complain "because the record is silent as to plaintiff's 
rate of speed. During the trial Opel, one of defendants 1 
witnesses, testified that immediately. before the occurrence 
plaintiff's motorcycle passed his car. On direct examination 
he was asked: "Mow then, did you see a. motorcycle there?" 
and answered: "I didn't at that moment." He was then askeds 
"Did you thereafter?" to which he answered: "I certainly 
did." He was then asked: "Where was it when you first saw 
it?" to which he answered: "Alongside of me." He was then 
asked: "Was your attention directed to it by seeing it or 
by hearing it or by something else?" to which he answered: 
j "Both seeing and hearing it." To the question: "What did 
you hear?" he answered: "I heard the roar of a motorcycle 
go by me." He was then asked: "And then. what did you see?" 
to which he answered: "I saw a collision." On direct exam- 
ination witness further testified that he had driven auto- 
mobiles for 30 years and could estimate the speed of motor 
vehicles. He gave his opinion. asYto the speed of his own 
car and the speed of the truck. On cross-examination he was 
asked: "All right, could you give us an opinion as to the 
speed the motorcycle was going?" An objection by the attorney 
for defendants that. the question was not proper cross-examin- 
ation was sustained. We agree with plaintiff that the witness 
Opel, when testifying that the motorcycle parsed his car with 
a roar, would be likely to leave the impression on the jury 
that the "roar" was caused by. the high rate of speed at 
which plaintiff was traveling. Under the circumstances, 




-12- 

plaintiff's attorney had. a right to cross-examine the 
witness on his estimate of the speed of the motorcycle, and 
the court should have permitted the question. Therefore 
defendants are not in a position to complain that the record 
is silent as to the number of miles per hour the motorcycle 
was traveling. In Owen v. Crumbaugh , 228 111. 380, a will 
contest case, complaint was made because there was no evi- 
dence as to certain beliefs of spiritualists, which was 
material in the matter before the court. The Supreme Court 
said (page 408): 

"This point is not available to contestants, since 
proponents asked Dr. Warne to state the belief of his asso- 
ciation on this point, and the contestants objected and 
the objection was sustained. Contestants will not be per- 
mitted to profit by the absence of evidence x^hich was ex- 
cluded on their objection." 

In Kelly v. Chicago City Railway Co ., 283 111. 640, 

the court said (645): 

"As a general proposition, the question of contrib- 
utory negligence is one o'f fact for the jury under all the 
facts and circumstances shown by the evidence, ( Bale v. 
Chicago Junction Railway Co ., 259 111. 476), but cases 

occasionally arise in which a person is so careless or his 
conduct so violative of all rational standards of conduct 
applicable to persons in a like situation that the court 
can say, as a matter of lav;, that no rational person would 
have acted as he lid and render judgment for the defendant. 
This is not one of those cases." 

We conclude, as did the Supreme Court in the Bale and 
Kelly cases, that in the instant action the issue of plain- 
tiff's due care was properly submitted to the jury. There 
was competent evidence from which the jury could decide that 
plaintiff /exercised due care. Therefore, the judgment of the 
Circuit 0ourt of Cook County is affirmed. 

JUDGMENT AFFIRMED. 
KILEY AND LEWE, JJ. CONCUR. 



44591 

AMERICAN ROOF TRUSS COMPANY, 
a corporation, 



Plaintiff - Appellee, 



v. 



ALBERT C. GOLK and LAURA GOLK, 
his wife, THOMAS LOURY, doing 
business as LOURY CONSTRUCTION AND 
LANDSCAPING COMPANY, THOMAS HOIST 
COMPANY, a corporation, LIBERTY 
NATIONAL BANK OF CHICAGO, as 
Trustee under Document No, 13825998 
and "UNKNOWN OWNERS, " 

Defendants, 

On Appeal of ALBERT C. GOLK and 
LAURA GOLK, his wife, 



Defendants - Appellants. 




3 37I.A. 659 



APPEAL FROM 
CIRCUIT COURT 
COOK COUNTY 



ON REHEARING 

BR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE 

COURT. 

American Roof Truss Company, a corporation, as a 
subcontractor, filed a complaint and an amended complaint in 
the Circuit Court of Cook County to declare and foreclose 
an alleged mechanic's lien against Albert C. Golk and Laura 
Golk, his wife, the owners, Thomas Loury, the general con- 
tractor, and others. Answers and a reply were filed. The 
cause was referred to a master in chancery, who heard evidence 
and submitted a report finding that plaintiff has a prior 
and superior lien and recommending foreclosure thereof. 
Objections to the report which were overruled by the master 
were ordered to stand as exceptions. The chancellor entered 
a decree overruling the exceptions, approving the report and 
directing the foreclosure of the alleged mechanic's lien. 
Albert C. Golk and Laura Golk appealed. For convenience we 
will refer to Mr. and Mrs. Albert C. Golk as defendants. 



-2- 

In its brief plaintiff, under the title of "Addi- 
tional Facts," states that the agreement under which it did 
the work is signed by the contractor and the owners. There 
was no finding that plaintiff was other than a subcontractor, 
nor does the decree find that defendants are obligated to 
plaintiff by virtue of signing the contract between plain- 
tiff and the contractor^. Plaintiff did not except to the 
master's report or assign cross errors. Therefore, it is 
unnecessary to discuss the effect of defendant's signature 
on the contract between plaintiff and the general contractor. 

The decree found that the final completion date on 
which plaintiff furnished labor and material in the construc- 
tion of the roof under its contract with Loury was October 8, 
1946, and that on November 29, 1946, plaintiff duly served 
its notice of subcontractor's lien on Albert C. Golk person- 
ally, which constituted good service thereof upon the defend- 
ants. Defendants maintain that the findings of the decree (a) 
that on November 29, 1946 plaintiff duly served its notice 
of subcontractor's lien on Albert C. Golk personally, and (b) 
that the final completion date of its contract with the gen- 
eral contractor was October 8, 1946, are against the manifest 
weight of the evidence. The parties argue these and collat- 
eral points. We have carefully read and considered the 
pleadings, the transcript of the evidence, the exhibits, the 
master' s report, the briefs and the authorities cited. In 
the view we take of the case It is only necessary to discuss 
the point advanced by defendants that the finding that they 
were duly served with notice of a subcontractor's lien on 
November 29, 1946, is against the manifest weight of the 
evidence. 



-3- 

Albert C. G-olk Is in the cartage "business with an 
office at 832 West Fulton Street, Chicago. He and his wife, 
Laura Golk, as Joint tenants, purchased a parcel of real 
estate at the southwest corner of Fulton and Carpenter Streets, 
located about a quarter of a mile west of Mr. Golk's office. 
Defendants employed Thomas A. Loury to erect a garage building 
on the land and several separate contracts were executed by 
them for the construction of the building. They entered into 
a written contract with Loury whereby he agreed to furnish a 
five truss roof (manufactured by plaintiff) for the building 
on a cost, plus material and labor basis, plus a percentage 
supervision charge. It is undisputed that Mr. Golk acted and 
was the duly authorized agent of his wife in the making of the 
improvements and that valid service of the lien notice on him 
as her agent would be binding on her. The parties are in 
agreement that the law is that a subcontractor's notice must 
be served personally and that service by mail is Insufficient. 
See Carney v. Tully , 74 111. 375, and Agles v. Stolze Lumber 
Co. , 260 111. App. 14. It was essential, as a foundation to 
plaintiff's right to a mechanic's lien, that it prove by a 
preponderance of the evidence that it served its notice of 
claim personally. Plaintiff, with offices at 6850 Stony 
Island Avenue, Chicago, entered into a contract with Loury, 
the general contractor, to furnish and erect on the building 
five American Bowstring wood trusses at a price of 05,486. 
It insists that it served the defendants personally with the 
subcontractor's lien notice by delivering a copy thereof per- 
sonally to Mr. Golk for himself and as agent for his wife, on 
November 29, 1946, at 2:45 p.m. The original lien notice, a 



-4- 

copy of which plaintiff asserts it served on the defendants, 
is dated November 29, 1946, and states that there was then 
due to plaintiff the sum of $4, 040. 

Plaintiff's president is William H. Waddington and 
the vice president is his son, Raymond J. Waddington. The 
latter was the only witness to testify for plaintiff on the 
issue of service of the lien notice. On direct examination 
he testified that he had seen plaintiff's Exhibit 29 (lien 
notice) before; that it bore the genuine signature of his 
father; that on November 29, 1946 he went to see Mr. Golk 
at the latter 1 s office; that he took with him the original 
notice of lien and a copy; that when he arrived Mr. Golk 
was the only one there; that he was very busy; that he was 
talking on both telephones, which was one of the incidents 
that helped him to place this particular set of facts in his 
mind; that whi4.e he was talking on the telephone witness 
waited for him to get through; that it took quite a while; 
that as soon as one telephone stopped the other would ring; 
that when he was through witness handed him a copy of 
the notice of lien; that witness stepped back and noted 
the time and date on the back of it; that when he handed 
Mr* Golk the notice he said to him: "This is a notice of 
Lien"; that he made a notation on the original of the time 
he served it, "2:45 p.m. November 29, 1946," which appears 
in black ink on the back of plaintiff's Exhibit 29; that he 
made the notation with his own pen immediately after he 
served the lien; that he previously had occasion to serve no- 
tices of subcontractor's lien upon owners of property; that 
it was his custom to personally serve the notices on the 



-5- 

owners; that Mr. Go Ik said he was very sorry about everything; 
that plaintiff did a good Job on the trusses; and that he had 
not paid because he had already overpaid Loury. 

On cross-examination, Raymond J. Waddington testi- 
fied that he did not remember where he was on the morning 
of November 29, 1946; that he didn't recall being in the 
office on that morning at about 10 or 11 o'clock; that he 
didn't remember distinctly where he came from on that after- 
noon to go to Mr. Golk's place of business, but he believed 
It was from plaintiff's office; that he didn't distinctly 
remember what time he left the office; that he got plain- 
tiff's Exhibit 29 at the office; that it was made up by the 
bookkeeper; that he got two of them; that he didn't remember 
whether they were attached; that his father handed them to 
him, but he doesn 1 t remember where he was when his father 
handed them to him; that he was in the office; that he doesn't 
remember distinctly what day, but thinks it was November 29, 
1946; that he doesn't remember the time of day that his 
father handed them to him, but it might have been in the 
morning; that he didn't remember the exact time at all; that 
he doesn't remember whether the exhibit was handed to him on 
November 29, 1946; that it was a long time ago; that witness 
read them; that he got two of them; that he got plaintiff's 
Exhibit 29 and another one and that the other was a duplicate; 
that he doesn't remember whether the other one was a carbon 
copy or not; that he looked at them and read both of them, but 
can't tell now whether a carbon copy or original was given him; 
that when the two were handed to him he doesn't remember dis- 
tinctly whether he put them in a file or put them in his 
pocket; that he went out to Mr. Golk; that he doesn't remember 



-6- 

the exact location at that tine, but knew how he got there; 
that when he got there, Mr. Golk was there; that Mr, Golk, 
Jr. was not there; that he doesn't remember distinctly 
whether his father was in town "at that time, on that day," 
although he testified a short time previously that his 
father had handed him the two exhibits; that he didn't remem- 
ber whether it was the sane day, November 29, 1946, but he 
Imagined it was the same day; that he was at Mr. Golk's 
office on November 29, 1946 about "half an hour, twenty min- 
utes"; that the notation "To Golk, Sr. " in pencil on the back 
of plaintiff's Exhibit 29 is in his father's handwriting; 
that he doesn't remember whether it was on there at the time 
he went out to Mr. Golk's place of business on November 29, 
1946; that this was true though witness purported to have 
written in ink down there directly below the notation; that 
he didn't know whether that pencil notation w a s on there; 
that he doesn't remember whether the notation "R.J.W. " was on 
there at the time he went out there; and that he doesn't re- 
member whether he looked on the back of the other copy that 
he had, so he doesn't know what was on the back of It. 

Under cross-examination this witness further testi- 
fied that when he was in Mr. Golk's office he doesn't remember 
whether Exhibit 29 was folded or not; that he doesn't remember 
whether the copy was folded or not, although he looked at it; 
that the seal in the lower left hand corner is the seal of 
plaintiff; that he doesn't remember whether the seal was on 
the othar copy; that his father's signature is on the exhibit 
and was on the other copy; that witness sees the two holes 



-7- 

punched at the top of the exhibit; that he doesn't remember 
whether the copy had holes punched in it; that witness 
finally went to a lawyer; that the witness's signature is 
on the complaint, opposite the notary's seal; that when he 
went to the attorney he handed him Exhibit 29 some time or 
other; that the attorney drew up the papers; that witness 
came in and read over the complaint; that on page 6 thereof 
witness says that he has read the bill and "the foregoing 
statements by him subscribed"; that in paragraph 8 of the 
original complaint where he states "that on the 29th day of 
October, 1946 the plaintiff delivered to and personally 
served upon Albert C. Golk and Laura Golk, his wife, the 
owners of the above described premises, a notice of claim 
for lien, a true copy of which is attached to the complaint 
as Exhibit 'B'," witness doesn't remember that although 
he read the complaint over before he signed it; that he 
also looked over plaintiff's Exhibit B attached to the 
complaint; that he looked at the whole thing; and that 
witness's statement in paragraph 8 of the complaint was 
bad reading on his part. 

To controvert the testimony as to service on the 
afternoon of November 29, 1946, defendants Introduced six 
witnesses, two of whom testified only as to a collateral 
matter. Albert C. Golk testified that he received 
defendant's Exhibit 20, purporting to be a notice of sub- 
contractor's lien, in the mail around December 6th or 7th, 
1946; that he received it about a week after Thanksgiving; 
that it was never handed to him personally; and that he was 
not at his place of business on the afternoon of November 
29, 1946. Thanksgiving Day was observed on Thursday, 



-8- 

Noveober 28, 1946. Witness states that he was at his place 
of business Friday, November 29, 1946 until about 11:45 a.m.; 
that it was the day after Thanksgiving; that it was not a busy 
day in his business, because hauling by carlots is all over 
before Thanksgiving and that Friday and Saturday are 
particularly quiet; that he received a call that morning 
from Herman Bollmann, a friend of his; that Bollmann called 
to make an appointment; that Bollmann said, "I will see you 
out at Jake's*; that witness left the office at 11; 45 a.m.; 
that he drove to North Avenue and Ridgeland to Jacob Loibl's 
tavern; that he arrived at the tavern he "imagined" between 
a quarter after and half past twelve; that when he arrived 
Mr. Bollmann was sitting there at the bar talking to Jake; 
that they remained at the tavern until around three 
o'clock; that they then went to Franklin Park to the DeLuxe 
Gardens; that they remained there Just a few minutes; that 
they then went to the Chi-Oak Inn at Chicago and Oakley, 
where they remained until a little after 5:00 p.m.; that at 
5:00 p.m. witness went home and Bollmann went to pick up his 
girl friend; and that witness did not go back to the office 
that day. Mr. Golk was cross-examined. We are not detailing 
the cross-examination as we have concluded that it did not 
shake his testimony In chief. There was no attempt to 
cross-examine the witness as to his movements on November 
29, 1946, after he left his office and went out to Jacob 
Loibl's tavern, nor was there any attempt to impeach the 
witness. 

Mr. Golk's testimony as to his movements on Friday, 
November 29, 1946 is corroborated by H. C. Bollmann. He is 
employed at the Mack Truck plant as a pick-up driver and 



-9- 

had been so employed for five years at the time he testified. 
He recalled the weekend of Thanksgiving, 1946. He did not 
work on November 29th or 30th. Ordinarily, he worked on 
Fridays and Saturdays at that tine. He knew Mr. Golk 30 
or 35 years. Mr. Bollmann testified that he was at the tavern 
about 12:15 noon on November 29th; that Golk came in about 
10 or 15 minutes thereafter; that he called Golk earlier 
in the day to make the appointment; that he had called him 
from a drugstore at Division and Austin Boulevard; and that 
they left the tavern a little after 3:00 p.m. He supported 
Golk's testimony as to their movements on that afternoon 
and said that they left the Chl-Oak Inn at about 5:00 p.m. 

The testimony of Golk and Bollmann was corroborated 
by that of Jacob Lolbl and Albert 0. Golk, Jr. The latter 
testified that on November 29, 1946, the day after 
Thanksgiving, he was down at work; that in the morning 
he did the same as always; that his duties were directly 
outside of the office; that he went into the office on that 
day between 11:15 and 11:30 a.m.; that his father washed up 
and left the office somewhere between 11:30 and 12 o'clock; 
that witness spent the rest of the day in the office; that 
he was in the office all the time until 6:30 or 7:00 p.m. 
that night; that his father did not come back to the office 
that day; that witness did not see Mr. Waddlngton that day 
at all; that Mr. Waddlngton did not hand him any notice 
of lien or anything; that he did not hand his father any 
notice of lien at 2:45 p.m. that day; and that he next saw 
his father on Saturday morning. Witness further testified 
that on November 29, 1946, hie wife worked in the morning; 
that that afternoon she was a passenger on an airplane to 



-lo- 
st Louis; that this Is the way witness fixed the date; 
and that she cane back from St Louis on Sunday, December 
1st, at about 1:30 p.m. Albert C. Go Ik, Jr. further testi- 
fied that he went out to plaintiff's office on December 5th 
or 6th; that he had never been out there before; that he 
has not been there since; that the first time he ever saw 
defendant's Exhibit 20, a copy of a notice of lien, was about 
a week after he was at plaintiff's office; that witness 
had cone in from the outside; and that witness came into 
the office and his father showed it to him. This witness 
was not cross-examined upon any of the foregoing testimony, 
nor was any attempt made to Impeach him. Leona Golk, his 
wife, testified that on the afternoon of November 29, 1946 
she and Mrs. Lillian Chapman went to the Municipal Airport 
and that they went by airplane to St Louis. Defendants in- 
troduced their Exhibit 28, her airplane ticket. She cane 
back via the air line the follox^ing Sunday, December 1st. 
She was not cross-examined, nor was any attempt made to 
Impeach her. Mrs. Lillian Chapman testified that she ac- 
companied Mrs. Golk on the airplane Journey to St Louis, 
but that she returned a few days later. 

There is no testimony in the record to corroborate 
Raymond J. Waddington's story. He testified that he doesn't 
distinctly -remember what day, but thinks it was November 29, 
1946, when his father handed the notice of lien and copy to 
him. The father failed to corroborate this testimony. The 
father testified that Albert C. Golk, Jr. and Thomas Loury 
were out to plaintiff's office on November 29, 1946, which 
was the same day Raymond J. Waddlngton testified he served 
the notice of claim for lien. On cross-examination, the 



-11- 

father testified that he didn't know what his son did on 
November 29, 1946, and that he didn't know that his son 
was in town that day. Raymond J. Waddington testified 
that plaintiff's Exhibit 29 was made up at plaintiff's 
office on November 29, 1946 by a bookkeeper, but plaintiff 
failed to produce the bookkeeper to corroborate this story. 
We agree with defendants that none of their witnesses was 
impeached or discredited. Albert C. Golk 1 s movements 
on November 29, 1946 are accounted for. The fact that 
Golk was in the business of hauling meat and that by 
Thanksgiving all of the hauling would be done so that 
Friday and Saturday thereafter would be particularly quiet, 
would make It natural and probable that he would take the 
afternoon off to relax and visit with his friend. Bollmann 
also had Friday and Saturday off at this time. The fact 
that he was off from work on this particular Friday and 
Saturday would be consistent with the fact that it was the 
Friday and Saturday after Thanksgiving. Mr. William H. 
Waddington, after testifying about a conversation at 
plaintiff's office on the morning of November 29, 1946, 
wherein Mr. Golk, Jr. was present, stated that in a depo- 
sition for discovery taken on April 28, 1947, in answer to 
the question as to whether he recalled the date of the 
conversation, he answered: "Yes, it could be in December 
or November; I don't recall." In answer to the further 
question "Was that in the early part of December, 1946?" 
and whether he answered, "I don't remember the date A. C. 
Golk was at my office," he replied: "I don't remember." 



-12- 

Mr. Albert Golk, Jr. denied that he was at plaintiff's 
office on November 29, 1946. We find that the evidence, 
exhibits and surrounding circumstances support defendants' 
position that Mr. Albert Go Ik, Jr. was not at a conference 
at plaintiff's office on the morning of November 29, 1946. 
The documents introduced by plaintiff and the so-called 
surrounding facts do not support plaintiff's allegation of 
service of lien and do not overcome the unimpeached testi- 
mony establishing that Mr. Golk, Sr. was not at his office 
the afternoon on which plaintiff claims he served him per- 
sonally. 

In Larson v. Glos , 235 111, 584, the court said 

(588): 

"A master has some advantage in being able to see 
and hear the witnesses, where he, in fact, does so; but he 
may have considered incompetent evidence or failed to con- 
sider competent evidence, and, in any event, his findings 
are only prima facie correct. It is only where the court 
has heard the evidence and decided the case that we have 
refused to disturb the finding unless it was clearly and 
manifestly against the vreight of the evidence. This court 
has never adopted the rule that a master's report Is to be 
given the same effect as the verdict of a Jury in a case 
where the parties have a right to have issues of fact de- 
termined by Jury. Fairbury Agricultural Board v. Holly , 
169 111. 9; Ennesser v. HudeK , Id. 494." 

In Borovansky v. Para, 306 111. App. 60, we said that the 
master in chancery saw the witnesses and heard them testify; 
that it was his province to determine the facts; that while 
his findings do not carry the same x^eight as the verdict 
of a Jury, or of a chancellor, where the witnesses have 
testified before him, yet the master's findings are en- 
titled to due weight on review of the cause; and that where 
his conclusions as to the facts have been approved by the 
chancellor, we are not Justified in disturbing his findings 
unless they are against the manifest weight of the evidence, 



-13- 

citlng Pase dach v Q Auw, 364 Ill„ 491. In the instant case 
we are satisfied that the findings of the master and the 
chancellor on the issue of service are against the manifest 
weight of the evidences 

For the reasons stated the decree of the Circuit 
Court of Cook County establishing and ordering the fore- 
closure of a lien against the defendants is reversed and 
the cause is remanded with directions to dismiss the com- 
plaint and the amended complaint for want of equity at 
plaintiff's costs. 

DECREE REVERSED AND CAUSE REMANDED 
WITH DIRECTIONS 

KILEY, J., and LEWE, J, CONCUR 



44591 

AMERICAN ROOF TRUSS COMPANY, 
a corporation, 

Plaintiff - Appellee, 



3 37I.A. 



) 



ALBERT C. GOLK and LAURA GOLK, 
his wife, THOMAS LOURY, doing 

business as LOURY CONSTRUCTION AND 
LANDSCAPING COMPANY, THOMAS HOIST 
COMPANY, a corporation, LIBERTY 
NATIONAL BANK OF CHICAGO, as 
Trustee under Document No. 13825998 
and "UNKNOWN OWNERS," 

Defendants, 

On Appeal of ALBERT C,. GOLK and 
LAURA GOLK, his wife, 

Defendants - Appellants* 




APPEAL FROM 



CIRCUIT COURT 



COOK COUNTY. 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE 

COURT. 

American Roof Truss Company, a corporation, as a 
subcontractor, filed a complaint and an amended complaint in 
the Circuit Court of Cook County to declare. and foreclose 
an alleged mechanic's lien against Albert C. Golk and Laura 
Golk, his xirife, the_ owners, Thomas Loury, the general con- 
tractor, and others. Answers and a reply were filed. The 
cause was referred to a master in chancery, who heard evidence 
and submitted a report finding that plaintiff has a prior 
and superior lien and recommending foreclosure thereof. 
Objections to the report which were, overruled by the master 
were ordered to stand as exceptions. The chancellor entered 
a decree overruling the exceptions, approving the reportand 

directing the foreclosure of the alleged mechanic's lien. 
Albert C. Golk and Laura Golk appealed. For convenience we 
will refer to Mr., and Mrs. Albert C. Golk as defendants. 



-2- 

In its brief plaintiff, under the title of "Addi- 
tional Facts, " states that the agreement under which it did 
the work is signed by the contractor and the owners. There 
was no finding by the master or chancellor that plaintiff 
was other than a subcontractor, and the decree does not find 
that defendants are obligated to plaintiff by virtue of sign- 
ing the contract between plaintiff and the contractor. Plain- 
tiff did not except to the master's report or assign cross 
errors. Hence, it is unnecessary to discuss the effect of 
defendants' signature on the contract between plaintiff and 
the general contractor. 

The decree found that the final completion date on 
which plaintiff furnished labor and material in the construc- 
tion of the roof under its contract with Loury was October 8, 
1946, and that on November 29, 1946, plaintiff . duly served 
its notice of subcontractor's lien on Albert C. G-olk person- 
ally, which constituted good service thereof upon the defend- 
ants. Defendants maintain that the findings of the decree (a) 
that on November 29, 1946 plaintiff . duly served its notice 
of subcontractor's lien on Albert C. Golk personally, and (b) 
that the final completion date of its contract with the gen- 
eral contractor was October 8, 1946, are against the manifest 
weight. of the evidence. The parties argue these and collateral 
points. We have carefully read and considered the pleadings, 
the transcript of the evidence, the exhibits, the master's 
report, the briefs and the authorities cited. In the view we 
take of the case it is only necessary to discuss the point 
advanced by defendants that the finding that they were duly 
served with notice of a subcontractor' s lien on November 29, 
] 1946 is against the manifest weight of the evidence. 






. ' V 



Albert C. Golk is in the cartage, business with an 
office at 832 West Fulton Street, Chicago. He and his wife, 
Laura Golk, as joint tenants, purchased a parcel of real 
estate at the southwest corner of Fulton and. Carpenter Streets, 
located about a quarter of a. mile west of Mr, Golk' s office. 
Defendants employed Thomas A. Loury to erect a garage building 
on the land and several separate contracts were executed by 
them for the construction of the building. They entered into 
a written contract with Loury whereby he agreed to furnish a 
five truss roof (manufactured by plaintiff) for the building 
on a cost, plus material and labor basis, plus a percentage 
supervision charge. It is undisputed that Mr, Golk acted and 
was the duly authorized agent of his wife in the making of the 
improvements and that valid service of the lien notice on him 
as her agent would be binding on her. The parties are in 
agreement that the law is that a subcontractor's notice must 
be served personally and that service. by mail. is insufficient. 
See Carney v, Tully , 74 111. 375, and Agles v. Stolze Lumber 
Co. , 260 111. App. 14. It was essential, as a foundation to 
plaintiff's right to a mechanic's lien, that it prove by a 
preponderance of. the evidence that it served its notice of 
claim personally. Plaintiff, with offices at 6850 Stony 
Island Avenue, Chicago, entered into a contract with Loury, 
the general contractor, to furnish and erect on the building 
five American Bowstring wood trusses at a price of $5,486. 
It insists that it served the defendants personally with the 
subeontractor? s lien notice by delivering a copy thereof per- 
sonally to Mr. Golk for himself and as agent for his wife, on 
November 29, 1946 at 2:45 p.m. The original lien notice, a 



-4- 

copy of which plaintiff asserts it served on the defendants, 
is dated November 29, 1946, and states that there was then 
due to plaintiff the sum of $4,040. 

Plaintiff's president is William H. Haddington and 
the vice president is his son, Raymond J. Haddington, The 
latter was the only witness to testify for plaintiff on the 
issue of service of the lien notice. On direct examination 
he testified that he had seen plaintiff's Exhibit 29 (lien 
notice) before; that it bore the genuine signature pf his 
father; that on November 29, 1946 he went to see Mr. Golk 
at the latter' s office; that he took with him the original 
notice of lien and a copy; that when he arrived Mr. Golk 
was the only one there; that he was very busy; that he was 
talking on both telephones, which was one of the incidents 
that helped him to place this particular set of facts in his 
mind; that while he was talking on the telephone witness 
waited for him to get through; that it took quite a while; 
that as soon as one telephone stopped the other would ring 
again; that when he was through witness handed him a copy 
of the notice of lien; that witness stepped back and noted 
the time and date on the back of it; that when he handed 
Mr. Golk the notice he said to him: "This is a notice of 
Lien"; that he made a. notation on the original of the time 
he served it, "2:45 p.m. November 29, 1946," which appears 
in black ink on the back of plaintiff's Exhibit 29; that he 
made the notation with his own pen immediately after he 
served the lien; that he previously had occasion to serve 
notices of subcontractor's lien upon owners of property; that 
it was his custom to personally serve the notices on the 



-5- 

owners; that Mr. G-olk said he was very sorry about everything; 
that plaintiff did a good job on the trusses; and that he had 
not paid because he had already overpaid Loury. 

On cross-examination Raymond J. Haddington testi- 
fied that he did not remember where he was on the morning 
of November 29, 1946; that he didn't recall being in the 
office on that morning at about 10 or 11 o'clock; that he 

didn't remember distinctly where he came from on that after- 
noon to go to Mr. G-olk' s place of business, but he believed 
it was from plaintiff's office; that he didn't distinctly 
remember what time he left the office; that he got plain- 
tiff s Exhibit 29 at the office; that it was made up by the 
bookkeeper; that he got two of them; that he didn' t remember 
whether they were attached; that his father handed them to 
him, but he doesn't remember where he was when his father 
handed them to him; that he was in the office; that he doesn't 
remember distinctly what day, but thinks it was November 29, 
1946; that he doesn't remember the time of day that his 
father handed them to him, but it might have been in the 
morning; that he didn't remember the exact time at all; that 
he doesn't remember whether the exhibit was handed to him on 
November 29, 1946; that it was a long time ago; that witness 
read them; that he got two of them; that he got plaintiff's 
Exhibit 29 and another one and that the other was a duplicate; 
that he doesn't remember whether the other one was a carbon 
copy or not; that he looked at them and read both of them, but 
can't tell now whether a carbon copy or original was given him; 
that when the two were handed to him he doesn't remember dis- 
tinctly whether he put them in a file or put them in his 
pocket; that he went out to Mr. G-olk; that he doesn't remember 



-6- 

the exact location at that, time, but knew how he got there; 
that when he got there, Mr. Golk was there; that Mr. Go Ik, 
Jr. was not there; that he doesn't remember distinctly 
whether his father was in town on that day, although he testi- 
fied a short time previously that his father had handed him 
the two exhibits; that he didn 1 t remember whether it was the 
same day, November 29, _ 1946, but he imagined it was the same 
day; that he was at Mr, Golk' s office on November 29, 1946 
about "half an hour, twenty minutes"; that the notation "To 
Golk, Sr. " in pencil on the back of plaintiff's Exhibit 29 
is in his father's handwriting; that he doesn't remember 
whether it was on there at the time he went out to Mr. Golk's 
place of business on November 29, 1946; that this was true 
though witness purported to have written in ink down there 
directly below the notation; that he didn' t know whether that 
pencil notation was on there; that he doesn't remember whether 
the notation "R.J.;/," was on there at the time he went out 
there; and that he doesn' t remember whether he looked on the 
back of the other copy that he had, so he doesn't know what 
was on the back of it. 

Under cross-examination this witness further testi- 
fied that when he was in Mr. Golk's office he doesn't remember 
whether Exhibit 29 was folded or not; that he doesn't remember 
whether the copy was folded or not, although he looked at it; 
that the seal in the loweTleft hand corner is the seal of 
plaintiff; that he doesn't remember whether the seal was on 
the other copy; that his father's signature is on the exhibit 
and was on the other copy; that witness sees the two holes 



7. 

punched at the top of the exhibit; that he doesn't remember 
whether the copy had holes punched in it; that witness 
finally went to a lawyer; that the witness's signature is 
on the complaint, opposite the notary's seal; that when he 
went to the attorney he handed him Exhibit 29 some tine or 
other: that the attorney drew up the papers; that witness 
came in and read ove Ti the complaint; that on page 8 thereof 
witness says that he has ^ead the bill and "the foregoing 
statements by him subscribed"; that in paragraph 8 of the 
original complaint where he states "that on the 29th day of 
October, 1946 the plaintiff delivered to and personally 
served upon Albert C. Golk and Laura C-olk, his wife, the 
owners of the above described premises, a notice of claim 
for lien, a true copy of which is attached to the complaint 
as Exhibit 'B'", witness doesn't remember that although 
he read the complaint over before he signed it; that he 
also locked over plaintiff's Exhibit B attached to the 
complaint; that he looked at the whole thing; and that 
witness's statement in paragraph 8 of the complaint was 
bad reading on his part. 

To controvert the testimony as to service on the 
afternoon of November 29, 1946, defendants introduced six 
witnesses. Albert C. G-olk testified that he received 
defendant's Exhibit 20, purporting to be a notice of sub- 
contractor' s lien, in the mail around December 6th or 7th, 
1946; that he received it about a week after Thanksgiving; 
that it was never handed to him personally; and that he was 
not at his place of business on the afternoon of November 
29, 1946» Thanksgiving Day was observed en Thursday, 
November 28, 1946. Titnes^ states that he was at his place 
of business Friday, November 29, 1946, until about 11:45 adv 



8. 

that it was the day after Thanksgiving; that it not a busy 
day in his "business; because hauling by car lots is all ove^ 
before Thanksgiving and that Friday and Saturday are 
particularly quiet; that he received a call that morning 
from Herman Bollmann,a friend of his; that BollmanniCWillod 
to make an appointment; that Bollmaiin. B&Ufo "I will soe you 
out at Jake's"; that witness left the office at 11:45 a.m.; 
that he drove to No^th Avenue and Ridgeland to Jacob Loibl's 
tavern; that he arrived at the tavern he "imagined" between 
a quarter" after and half past twelve; that when he arrived 
L'Ir. Bollmannwas sitting there at the bar talking to Jake; 
that they remained at the tavern until around three 
o'clock; that they then went to Franklin Park to the DeLuxe 
Gardens; that they remained there just a few minutes; that 
they then went to the Chi "•Oak Inn at Chicago and Oakley, 
where they remained until a little after 5:00 p.m.; that at 
5:00 p.m. witness went home and Bollmannwent to pick up his 
girl friend; and that witness did not go back to the office 
that day. LIr. G-olk was cross-exa.mined. T ,7e are not detailing 
the cross-examination as we have concluded that it did not 
shake his testimony in chief. There was no attempt to 
cross-examine the witness as to his movements on November 
29, 1946 after he left his office and went out to Jacob 
Loibl's tavern, nor was there any attempt to impeach the 
witness. 

Ilr. G-olk' s testimony as to his movements on Friday, 
November 29, 1946 is corroborated by H. C. Bollmann. He. is 
employed at the Hack Truck plant as a pick-up driver and 
had been so employed for five years at the time he testifiedo 
He recalled the weekend of Thanksgiving, 1946. He did not 



9. 



work on November 29th or 30th. Ordinarily, he worked on 

Fridays and Saturdays at that time. He knew Mr. Golk 30 

or 35 years. Mr. Bollaana testified that he was at the tavern 

about 12:15 noon on November 29th; that Golk came in about 

10 or 15 minutes thereafter; that he called Golk earlier 

in the day to make the appointment; that he had called him 

f-ofa a drugstore at Division and Austin Boulevard; and that 

they left the tavern a little after. 3:0C p.m. He supported 

Golk's testimony as to their movements en that afternoon 

and said that they left the Chi-Oak Inn at about 5:00 p.m. 

Tins witness was not cross-exam -5 npfl t-i^ «, n n-n-™ +. 

L^afc, eAct.u-.nea ana no attempt was made 

to impeach him. 

The testimony of Golk and Bollaonnwaa corroborated 

by that of Jacob Loibl and Albert C. Golk, Jr. The latter 
testified that on November 29, 1946, the day after. 
Thanksgiving, he was down at work; that in the morning 
he did the same as always; that his duties were directly 
outside of the office; that he went into the office on that 
day between 11:15 and 11:30 a.m.; that his father washed up 
and left the office somewhere between 11:30 and 12 o'clock; 
that witness spent the rest of the day in the office; that 
he was in the office all the time until 3:30 or 7:00 p.m. • 
that night; that his father did not come back to the office 
that day; that witness did not see Hv. Taddington that day 
at all; that LIr. Haddington did not hand him any notice 
of lien o, anything; that he did not hand his father any 
notice of lien at 2:45 p.m. that day; and that he next saw 
his father on Saturday morning. Witness further testified 
that on November 29, 1946 his wife worked in the morning; 
that that afternoon she was a passenger on an airplane J 



10 

St Louis; that this is the way witness fixed the date; 
and that she came back from St Louis on Sunday, December 
1st, at about 1:30 p.m. Albert C. Golk, Jr. further testi- 
fied that he went out to plaintiff's office on December 5th 
or 6th; that he had never been out there before; that he 
has not been there since; that the first time he ever saw 
defendant's Exhibit 20, a copy of a notice of lien, was about 
a week after he was at plaintiff's office; that witness 
had come in from the outside; and that witness came into 
the office and his father showed it to him. This witness 
was not cross-examined upon any of the foregoing testimony, 
nor was any attempt made to impeach him. Leona Go Ik, his 
wife, testified that on the afternoon of November 29, 1946 
she and Mrs. Lillian Chapman went to the Municipal Airport 
and that they went by airplane to St Louis. Defendants in- 
troduced their Exhibit 28, her airplane ticket. She came 
back via the air line the following Sunday, December 1st. 
She was not cross-examined, nor was any attempt made to 
impeach her. Mrs. Lillian Chapman testified that she ac- 
companied Mrs. Golk on the airplane journey to St Louis, 
but that she returned a few days later. 

There is no testimony in the record to corroborate 
Raymond J. Waddington's story. He testified that he doesn't 
distinctly remember what day, but thinks it was November 29, 
1946, when his father handed the notice of lien and copy to 
him. The father failed to corroborate this testimony. The 
father testified that Albert C. Golk, Jr» and Thomas Loury 
were out to plaintiff's office on November 29, 1946, xjhich 
was the same day Raymond J. Waddington testified he served 
the notice of claim for lien. On cross-examination the 



11 

father testified that he didn't know what his son did on 
November 29, 1946, and that he didn't know that his son 
was in town that day. Raymond J. Waddington testified 
that plaintiff's Exhibit 29 was made up at plaintiff's 
office on November 29, 1946 by a bookkeeper, but plaintiff 
failed to produce the bookkeeper to corroborate this story. 
We agree with defendants that none of their witnesses was 
impeached or discredited. Three of them, Herman Bollmann, 
Jacob Loibl and Lillian Chapman were disinterested and 
were not even cross-examined. Albert C. G-olk's movements 
on November 29, 1946 are accounted for. The fact that 
Golk i\ras in the business of hauling meat and that by 
Thanksgiving all of the hauling xrould be done so that 
Friday and Saturday thereafter would be particularly quiet, 
would make it natural and probable that he would take the 
afternoon off to relax and visit with his friend. Bollmann 
also had Friday and Saturday off at this time. The fact 
that he was off from work on this particular Friday and 
Saturday would be consistent with the fact that it was the 
Friday and Saturday after Thanksgiving. Mr. William H. 
Wadding ton, after testifying about a conversation at 
plaintiff s office on the morning of November 29, 1946 
wherein Mr. Golk, Jr. was present, stated that in a depo- 
sition for discovery taken on April 28, 1947, in answer to 
the question as to whether he recalled the date of the 
conversation, he answered- "Yes, it could be in December 
or November; I don't recall." In answer to the further 
question "Was that in the early part of December, 1946?" 
and whether he answered, "I don't remember the date A. C. 
Golk was at my office," he replied: "I don't remember." 



12 

Mr. Albert Golk, Jr. denied that he was at plaintiff s 
office on November 29, 1946. We find that the evidence, 
exhibits and surrounding circumstances support defendant's 
position that Mr, Albert Golli, Jr. was not at a conference 
at plaintiff's office on the morning of Kovember 29, 1946. 
The documents introduced by plaintiff and the so-called 
surrounding facts do not support plaintiff's allegation of 
service of lien and do not overcome the unimpeached testi- 
mony establishing that Mr. Golk, 3r. was not at his office 
the afternoon on which plaintiff claims he served him per- 
sonally. 

In Larson v. Glos , 235 111. 584, the court said 
(588): 

"A master has some advantage in being able to see 
and hear the i/itnesses, inhere he, in fact, does so; but he 
may have considered incompetent evidence or failed to con- 
sider competent evidence, and, in any event, his findings 
are only prima facie correct. It is only where the court 
has heard the evidence and decided the case that we have 
refused to disturb the finding unless it v/as clearly and 
manifestly against the weight of the evidence. This court 
has never adopted the rule that a master's report is to be 
given the same effect as the verdict of a jury in a case 
where the parties have a right to have issues of fact de- 
termined by jury. Fairbury Agricultural Board v. Holly , 
169 111. 9; Snnesser v. Kudek , id. 494. rt 

In Borovansky v. Para , 306 111. App. 60, we said that the 
master in chancery saw the witnesses and heard them testify; 
that it was his province to determine the facts; that while 
his findings do not carry the same weight as the verdict 
of a Jury, or of a chancellor, where the- witnesses have 
testified before him, yet the master's findings are en- 
titled to due weight on review of the cause; and that where 
his conclusions as to the facts have been approved by the 
chancellor, we are not justified in disturbing his findings 
unless they are against the manifest weight of the evidence, 



13 

citing gasedach v. Auw , 364 111. 491. In the instant case 
ve are satisfied that the findings of the caster and the 
chancellor on the issue of service are against the manifest 
weight of the evidence. 

For the reasons stated the decree of the Circuit 
Court of Cook County establishing and ordering the fore- 
closure of a lien against the defendants is reversed and 
the cause is remanded with directions to dismiss the com- 
plaint and the amended complaint for want of equity at 
plaintiff's costs. 

DECREE REVERSED AND CAUSE REMANDED 
WITH DIRECTIONS 

KILEY, J., andLEWE, J, CONCUR 



44671 

JOHN C KARNATZ, 



Appellant, 



v, 



HENRY A. KARNATZ, MINNIE C. FICK, 
ANNA KRUEOER, HELENE FICK, 
MARGARET KUTZ, WALTER A. KARNATZ, 
ALVINA K. POEHLSR, ESTHER E. FRITZ, 

FRED A. KARNATZ, LAURITZ P. HWASS. 
SAM TAVALIN and EMIL FICK, 



SAM TAVALIN. 



Defendants, 



Appellee. 



APPEAL FROM 



SUPERIOR COURT 



COOK COUNTY. 





J3 37I.A. 660 



MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT. 

On April 8, 1944, Henry Karnat z and Amelia Karnatz, 
his wife, the parents of John C. Karnatz, Henry A. Karnatz, 
Minnie C. Fick,. Anna Krueger, Helene Fick, Margaret Kutz, 
7/alter A- Karnatz, Alvina K. Poehler, Esther E. Fritz and 
Fred A... Karnatz, conveyed to two of their children,, namely, 
Henry A.. Karnatz and Minnie C. Fick, as trustees, 390 vacant 
lots with a frontage of 12,080 feet, scattered over 17 
blocks in Lincolnwood, Cook County, Illinois. Concurrently 
therewith the grantees made a written declaration of trust 
stating 'chat they would hold the realty for the ultimate use 
and benefit of themselves and their 8 brothers and sisters, 
each of whom became the beneficial, owner of a 1/lOth interest 
in the subject matter of the trust.. The declaration of 
trust was in the usual language and contained, among other 
things, a provision that while the trustees are the sole 
owners of the real estate so far as the public is concerned, 
it is understood that they "will deal with it only when 
authorized to do so, and that they will, on the direction 
of any seven of the * * * beneficiaries * * * make deeds 



. C. '". ": *'\ 



t • * '*'. 






. . ,.l 



i, .; 



i£> '' 



-2- 

for, or otherwise deal with the title to said real estate 
* * "*." .This instrument was signed by Henry A. Karnatz and 
Minnie C. Fick, as trustees, and by all the beneficiaries, 
except John C. Karnatz. 

After the trustees acquired title to the realty 
they sought a purchaser therefor. The trustees and. bene- 
ficiaries met from time to time to discuss the terms of sale. 
Eventually, a deal to acquire the property was consummated, 
pursuant to a written offer dated March 3, 1945, addressed 
by Sam Tavalin to the trustees. In the drafting of the 
trust instrument and in the transaction with Mr. Tavalin, 
Mr. Lauritz P. Hwass was attorney for the trustees. The 
offer from Tavalin, in the form of a letter, recites that 
Hwass represented to him that he, Hwass, "can settle all 
special assessments and general taxes, including 1944, for 
the sum of £105,000, on the above described premises, in- 
cluding his attorney's fees, Chicago Title and Trust Company 
charges for covering tax foreclosure proceedings and the 
issuance of a Guarantee Policy in the amount of $195,000, 

court costs, etc. On that basis I offer you for a deed 
clear of all encumbrances except taxes and special assess- 
ments, current and delinquent, the sum of $90,000.00 upon 
the following conditions: (l) I will deposit in escrow 
$5,000.00 as earnest money with the Chicago Title and Trust 
Company within five (5) days after the acceptance of this 
offer. (2) Mr. Hwass is to cause to be instituted general 
tax foreclosure and special assessment foreclosure proceed- 
ings, follow the same through to decrees of sale, sales there- 
under, and confirmation as expeditiously as possible. I will 



-3~ 

supply the funds necessary to bid at any tax or special assess- 
ment foreclosure sale and xirill purchase in the name of our 
nominee, provided said bid shall be. within the contemplated 
figure included within the $105, 000.00 aforesaid. In the 
disbursement of said $105,000.00, I am to accept the directions 
of your attorney, Lauritz P. Hwass, including the payment of 
any unexpended balance to him as fees or other expenses, there 
being no obligation upon my part to deliver to you any such 
unexpended balance, the intent being that you are to receive 
for the above lots only the sum of 590,000.00 as aforesaid, 
(3) When and if a confirmed sale shall be had on the above 
described premises at a figure which with attorney' s fees and 
other expenses, court costs, Chicago Title and Trust Company 
charges, etc., shall not require the disbursement of more than 
the total of $105,000.00 as aforesaid, I will accept from you 
a deed conveying the above premises to our nominee and will 
pay to you S15,000.00 together with the $5,000.00 earnest, 
money, and cause our nominee to execute a note of $70, 000.00, 
or if you prefer ten notes of $7,000.00 each, payable on or 
before five years after their date without interest and secure 

the said notes by a first mortgage trust deed conveying the 
above described premises, delivering you a mortgage policy 
with all reference to general taxes, including 1944, and all 
special assessments, current and delinquent, removed from 
said policy, said trust deed to contain a provision permitting 
of the release of any of the above lots in blocks or parcels 
of not less than 450 feet frontage upon the payment of $10.00 
per front foot, " except that certain lots may be released 
individually upon the payment of $10.00 per front foot. 



_4- 



Continuing, the offer states: 



"4. Paragraph 3 of this offer provides that I am 
to pay in cash the sum of $15,000.00, in addition to the 
$5,000,00 earnest money therein provided for. In view of 
the fact that some of the lots are now encumbered by a 
Trust Deed dated November 20, 1943, and recorded as Docu- 
ment Number 13184078, upon which there is an unpaid balance 
of approximately $14,000.00, I reserve the right and privi- 
lege to accept the title to the. real estate involved, sub- 
ject to said mortgage and to take credit for the balance 
due thereon against the $15,000.00 cash requirement. In 

the event I exercise the aforementioned privilege, the 
$70,000.00 purchase money mortgage will, of necessity, be 
a secondary. lien on those lots covered by the Trust Deed 
document Number 13184078. * * * 

"8. The escrow deposit is to be returned in the 
event Bills to Foreclose the special assessments and 
general taxes shall not be filed within the period of 90 
days after the date of the escrow deposit, as aforesaid, 
and all liability either on your part or on the part of 

the undersigned shall cease and determine. In the event 
such a Bill, or Bills, shall be filed and decrees of fore- 
closure and sales shall not be had in an amount which with 
the other expenses, fees, etc. as aforesaid shall be within 
the figure of $105,000.00 as aforesaid, the $5,000.00 is to 
be returned and all liability under this agreement shall 
cease and determine. * * * 

"10. . So that you may be in touch with the conduct 
of such foreclosure proceedings, the undersigned agrees 
that.Lauritz P. Hwass, your attorney, shall handle the tax 
and special assessment foreclosure proceedings to a conclu- 
sion. His fees, costs and expenses for the handling of 
such foreclosure proceedings are to be paid only out of 

and are included within the $105,000.00 as aforesaid. We 
are to arrange with him as to the manner of the payment of 
his fees either in cash or out of the proceeds of the re- 
sale of the real estate, as he and the" undersigned shall 
agree, but in any event you are not to be held responsible 
for any such fee and expenses. 

"11. Should the offeror default in the perform- 
ance of this contract on his part at the time and in the 
manner specified, for reasons beyond his control, then, the 
earnest money shall be forfeited as liquidated damages, and 
this contract thereupon shall become null and void, 

"12. This offer is to be accepted by you on or 
before five (5) days after the date hereof, otherwise to be 
null and void, written notice of such acceptance to be given 
to the undersigned within such period," 

On the day the offer was made, March 3, 1945, eight 

of the beneficiaries addressed the following letter to the 

trustees authorizing the acceptance of the offer: 



"We have read the attached offer, understand it 
and it is entirely satisfactory. You are authorized to 
accept said offer, and when, as and if payments shall be 
made under said Contract of Purchase or payment shall be 
made on account of the principal amount due under the 
Mortgage, to pay Lauritz P. Hwass for his compensation^in 
connection with said offer the sum of five per cent (5$) 
of the principal amount of $90, 000.00, said payments, 
however, to be made only out of collections received 
account of purchase price and paid to him pro rata. VTe 
understand he is to receive compensation from the purchaser 
for his services in negotiating settlement of taxes and 
special assessments and concluding tax and special assess- 
ment foreclosures." 

John C. Karnatz and Margaret Kutz are. the two beneficiaries 

\\ 

who did not join in the authorization. On the same day the 

trustees accepted the offer in a letter reading: 

"You are hereby advised that your offer to purchase 
the Pratt-Cicero Subdivision for $90,000.00 subject to 
taxes and assessments under the conditions outlined in said 
offer, copy being hereto attached, is accepted, and you 
are directed to arrange with our Attorney, Lauritz P. Hwass, 

for the deposit of the earnest money provided in said 
offer and thereafter cooperate with him in completing the 
purchase. This acceptance is made pursuant to the directions 
which the undersigned have received from the beneficiaries 
in the Trust." 

The sale was completed by conveying the title to the land to 
Betty Flower, a nominee of Tavalin, on or about June 29, . 1945, 
pursuant to his offer and the acceptance by the trustees. A 
Guarantee Policy for $195,000.00 was delivered as required 
by the offer. 

In the fall of 1945 John C. Karnatz learned from 
one of the trustees that the real estate had been sold to 
Tavalin. In January, 1947, John C. Karnatz employed an 
attorney, who, on January 10, 1947, addressed the following 
letter to each of the trustees: 



n-r 




and other property conveyed or caused to be conveyed and 



-6- 

transf erred by your father, to you and Minnie C. Fick, as 
trustees, for the "benefit of the ten children of your 
father. I have learned from various sources that you 

and your co-trustee have disposed of some of said property. 
My clients assert that such disposition was made by said 
trustees without their consent. Furthermore, my clients 
advise me that, although they have on numerous occasions 
asked you and your co-trustee for an accounting of your 
acts and doings with respect to the trust property, yet 
you have failed, neglected and refused to comply with 
their request. Please consider this letter as a formal 
demand that you transmit to me within a reasonable time 

from. the date of the receiot of this letter by you, a 
report and an accounting in your capacity as trustee afore- 
said. A letter of similar import is being dispatched 
by me on this date to your co-trustee." 

On January 14, 1947 Mr. Hwass telephoned John C. Karnatz 
that he was preparing a report for the trustees and that the 
same would be received the following day. On January 15, 
1947, the attorney for John C. Karnatz received from Mr. 
Hwass a letter purporting to give a history of the trans- 
action. At the request of this attorney, . Mr. Hwass gave him 
further, information about the transaction. On March 12, 
1947 Mr. Hwass made a complete itemized report to the trustees, 
a copy of which they delivered to the attorney for John C. 
Karnatz. 

On April 24, 1947, John 0. Karnatz, for his own use 
and for the use of the other beneficiaries under the trust, 
filed a complaint in chancery in the Superior Court of Cook 
County against Henry A. Karnatz and Minnie C. Fick, the 
trustees, and prayed for discovery, an accounting, judgment 
for damages suffered as a result of the failure and omission 
of defendants to sell the real estate for not less than 
$110,000.00, judgment for damages sustained as the result of 
the defendants' breach of trust, for the removal of the 
trustees, the appointment of other suitable persons in their 
stead, and for other relief. On October 3, 1947, by leave 
of court, plaintiff filed an amendment to the complaint by 



\ 



-7- 

making all of the other beneficiaries of . the trust parties 
defendant. On October 16, 1947, Henry A. Karnatz and Minnie 
C. Fick filed an answer to the complaint, as amended. On 
February 26, 1948, leave of court was granted to plaintiff to 
implead Lauritz P. Hwass, Sam Tavalin and Emil Fick as 
additional parties defendant, and to file his supplemental 
complaint. The supplemental complaint was filed. Among 
other things, it prayed that Sara Tavalin be decreed to pay 
plaintiff for the use and benefit of the trust the sum of 
$10,000.00. On April 2, 1943, Sam Tavalin filed his motion 
to strike, and dismiss the supplemental complaint for want 
of equity. On April 30, 1948, pursuant to leave granted, . 
plaintiff filed an amendment to his supplemental complaint. 
On May 10, 1948, Tavalin filed a motion to strike and dis- 
miss the complaint, supplemental complaint and the amendment 
thereto, for want of equity. By stipulation it was ordered 
that the copy of the offer dated March 3, 1945 from Tavalin, 
attached to the answer of Henry A. Karnatz and. Minnie C. 
Fick, be considered as a part of the complaint. On June 8, 
1948 the court sustained the motion of Sam Tavalin and 
entered a decree that the complaint, as supplemented and 
amended, be dismissed for want of equity as to Tavalin. 
Plaintiff, appealing, asks that the decree be reversed and 
that the cause be remanded with directions to overrule 
Tavalin' s motion, and for such other proceedings as the court 
shall deem meet. 

In the statement of March 12, 1947 from Hwass to 
the trustees, a copy of which they sent to the attorney for 
plaintiff, in setting out the disposition of the $105, 000.00 
mentioned in the offer of March 3, 1945, the following is 
stated as the reason for the reduction, of the estimated 
fees, costs and expenses, from $25,000.00: 



-I 



I 



"To obtain cash from Tavalin, reduction of estim- 
ated fees, costs and expenses of $25, 000.00 

Explanation of reduction; As you will remember, we had to 
guarantee to Tavalin that the figure of §105,000 and the 

figure of $90,000 &ue you be firm. Tavalin agreed that 
he would pay the $25,000 on or before one year after date 
of delivery of the policy, Xirhich.xirould have meant approx- 
imately $19,000 to us after reimbursing ourselves for our 
cash expenditures of over $6,000. He had the option, how- 
ever, of not paying the $25,000 but in lieu thereof to 
give us an agreement that after he had obtained complete 
reimbursement of all of his money, we v/ero then to get 
§25,000 plus an interest in the net profits. This con- 
ceivably would drag a great number of years and might rer 
suit in our not getting any funds out of the deal, as his 

expenditures for improvements, subdivision expenses, etc. 
might eat up all profits. After all he controlled the 
figures and could do whatever he wanted to do without any 
supervision from us.. We accordingly agreed to reduce 
the figure of $25,000 to $15,000 and he paid to the 
D'Anza Estate $7,500,00 and to me $7,500.00; after reim- 
bursing ourselves for expenditures, this left us a fee 
of. $8,359.56 divided between us." 

Mr. D'Anza, an attorney now deceased, was associated with 
Mr. Hwass in conducting the tax foreclosure proceedings, as 
he was a specialist in that field. 

In his reply brief plaintiff states that the docu- 
ment set out on pages 7 and S of the supplemental abstract, 
being the authorization by 8 of the 10 beneficiaries to the 
trustees to accept the offer of Tavalin, and the acknowledg- 
ment therein that such beneficiaries understood that in 
addition to. the commission which Hwass was to receive from 
the ^90,000.00 he was also to receive compensation from the 
purchaser for his services in negotiating the settlement of 
taxes and special assessments and concluding taxes and 
special assessment foreclosures, does not belong there; that 
it is no part of the case; that it is a part of the defen- 
sive pleading filed by the trustees; that plaintiff did not 
adopt all of the trustees' answer, and that if Tavalin 



-9- 

desired to seek comfort in that exhibit he should have filed 
an answer and -pleaded it in support of his defense; that 
plaintiff never signed it; that he has always disavowed it; 
that as a matter of fact, in the light of the revelations 

concerning the question of their attorney's disloyalty, 
the signers thereof have a right to disavow it; and that there 
is no more reason for considering that exhibit in this appeal 
than there would be to give consideration to the entire answer 
of the trustees. Paragraph 12 of the complaint recites a 
letter from attorney Hwass dated January 24, 1947, trans- 
mitting to the attorney for plaintiff a photostatic copy of 
the offer of Tavalin, the direction by the 8 beneficiaries to 
the trustees to accept the offer, and the direction to the 
trustees by 8 of the beneficiaries to convey the title to 
Betty Flower. Paragraph 15 recites the acceptance by the 
trustees dated March 3, 1945, the concluding sentence of which 
states that such acceptance is made pursuant to the directions 
which the. trustees "have received from the beneficiaries in 
the trust." The amendment to the supplemental complaint filed 
April 50, 1948, alleges that the "offer of March 5, 1945 was 
accepted by the trustees and some of the beneficiaries in 
reliance upon the implied representations of Hwass and 
Tavalin that the same was in all respects regular and proper, . 
and that no secret profit was contemplated for their attorney." 
In view of the fact that the acceptance by the trustees and 
the authorization by 8 of the beneficiaries was set up in the 
answer which had been filed prior to the supplemental com- 
plaint, it is manifest that plaintiff was referring to the 

authorization and acceptance pleaded in the answer of the 
trustees. In this state of the record we cannot agree with 

plaintiff's position that we should not consider the document 

dated March 3, 1945, signed by 8 of the beneficiaries. 



-10- 

Plaintiff maintains that his complaints properly 

allege that he at all times insisted that the property not 
be sold for less than $10.00 in cash per front foot; that 
he consistently refused to accede to a sale on any Other 
terms and so indicated to the trustees in a vigorous and 
forceful manner; that the trustees in turn, by their con- 
duct and demeanor, led plaintiff to believe that his wishes 
would be complied with; that at the last meeting cf the 
trustees and beneficiaries which plaintiff attended, the 
figure of 0110,000.00 net cash was mentioned and seemingly 
met with the approval of the majority of beneficiaries; that 
although plaintiff did not expressly consent to the sale at 
such figure, he assumed that the sale to Tavalin (whose 
identity he learned later) was made upon such terms; that 
in the fall of 1945 plaintiff learned from one of the trustees 
that the real estate had been sold to Tavalin, but that 
the trustee declined to give him any further information 
concerning the sale, or the terms and conditions thereof; 
that Tavalin understood that the purchase price was 
3195,000.00 and that $105,000.00 was to be used for removal 
of the tax lien; that both Tavalin and Hwass construed 
the transaction to be one involving the sale of the property 
for ^195,000.00, of which $105,000.00 as part of the pur- 
chase price was to be credited to Tavalin as said sum was 
disbursed; that prior to March 3, 1945 Hwass had caused 
to be made an analysis of the taxes and assessments against 
the property; that as a result thereof, as well as from in- 
quiries made by him in his capacity as attorney for the 



-11- 

trustees, Hwass learned that the approximate amount necessary 
to clear such tax charges was |80, 000.00; that Hwass never 
disclosed this information to his clients, the trustees and 
beneficiaries; that he did, hox^ever, give this information 
to Tavalin in the course of their negotiations prior to 
March 3, 1945; that in the course of such negotiations and 
conversations Tavalin and Hwass formulated the olan for the 
acquisition by Tavalin of the property; that pursuant to the 
plan they suppressed the fact of the sufficiency of $80, 000.00 
for the purposes aforesaid; that Tavalin and Hwass knowingly 
withheld from the trustees. and beneficiaries the fact that 
out of the sum of $105, 000.00, mentioned in the offer, 
§25,000.00 (less the fee of A. h. D'Anza, engaged by Hwass 
to assist him) had been allocated by Tavalin and Hx^ass as 
the secret profit of Hwass; that Tavalin and Hwass well knew 
that the trustees and beneficiaries were ignorant of such 
allocation, and by their conduct and demeanor led the trustees 
and some of the beneficiaries to believe that the sale con- 
templated by the offer of March 3, 1945 was actuated by 
good faith on the part of all the parties concerned and was 
free from any secret schemes; and that Tavalin knowingly aided 
and assisted Hwass in keeping the facts from the trustees 
and beneficiaries. 

The complaints allege further that in consequence 
of the conduct of Tavalin and Hwass the trustees were induced 
to believe that the offer was fair, equitable and in all 
respects honest; that the offer was accepted by the trustees 
by an instrument dated March 3, 1945; that such acceptance was 
made in reliance upon the implied representation of Tavalin and 



-12- 

Hwass that no secret profit was contemplated by Hwass; that 
although the acceptance recites that it is made pursuant to 
the directions the trustees received from the beneficiaries, 
plaintiff at no time gave such direction, the offer was 
never shown to him, and he was not advised of the contents 
thereof; that in addition to setting aside $25,000.00 out 

of the $105,000.00 for the benefit of Hwaes, Tavalin also 
provided Hwass with an opportunity to share in the profits 
from the venture; that this side deal was entered into 
between Tavalin and Hwass on or about March 3, 1945, but 
was first disclosed to the trustees after the filing of the 
instant suit; that Hwass never mentioned to the trustees 
the $25,000.00 fee, nor the $80,000.00 allocation to clear 
taxes; that on March 27, 1945 this undisclosed collateral 
agreement was reduced to writing; that the existence of the 
agreement was not revealed to the trustees or beneficiaries 
before the sale was consummated; that it came to light on 
May 26, 1947, when the deposition of Hwass was taken; that 
the effect of the side deal between Tavalin and Hwass was 

Ito create an interest to the advantage of Hwass adverse to 
that of the trust he was representing; that it deterred 
Hwass from the duty of exercising the utmost good faith, 
honesty, integrity, fairness and fidelity in the representa- 
tion of the interests of the trustees; that as a result of 
the antagonistic position he was occupying, Hwass compromised 
the interests of the trust; that some time after March 27, 
1945 Hwass excused Tavalin from the obligation to pay 
$10,000.00 of the $25,000.00 set aside by Tavalin as the 
fee of Hwass (out of the $105,000.00); that pursuant to the 



-13- 

release Tavalin has not paid the sum of $10,000.00; that the 
action of Hwass in relieving Tavalin of his obligation to 
pay $10,000.00 of the $105,000.00 was without any authori- 
zation from the trustees; and that plaintiff, for the bene- 
fit of the trust, is entitled to have a judgment. against 
both Hwass and Tavalin for the sum of $10,000.00. 

The letter from Hwass to Tavalin dated March 27, 
1945, calls attention to the terms of the offer of March 3, 
1945. Hwass states that in order to clarify arrangements 
with Tavalin regarding the payment of his fees out of the 
$105,000.00 set forth in the offer, Tavalin was advised 
that Hwass 1 understanding as to the payment of his compen- 
sation was as follows! 

"1. You are to make available to me the sum of 
$80,000 to be used for the payment of any and all general 
tax and special assessment liens now existing against the 

premises, from which all foreclosure bids, foreclosure 
costs, auditor' s fees, miscellaneous expenses, Chicago 

Title and Trust Compa.ny Guarantee Policy charges for a 
$195,000 Owners' Policy, as well as any and all other 
items of cost necessary to deliver good title under this 
deal, and special tax items in connection with foreclosure 
proceedings will be paid, with no obligation on my part to 
make any accounting to you as to the details or breakdown 
of the disbursement of said $80,000; except, that you shall 
first be satisfied that upon the payment and delivery to 
me of said $80,000, the Chicago Title and Trust Company 

will waive any and all objections with reference to all 
general tax and special assessment liens on the property 

involved for all years down to and including the. year 1944, 
as well as any a.nd all questions ef title after showing 
same in your name or in the name of your nominee. 2. The 
balance of the $105,000 required to be paid to me under your 
offer, amounting to $25,000, is to constitute my fee in 
connection with the tax work on this property, whether ren- 
dered by me or by my associate, and is to be paid to me on 
or before one year after the deal has been consummated in 
every respect, the special assessment and general tax fore- 
closure proceedings have been completed, and the Chicago 
Title and Trust Company has issued its Guarantee Title 

Policy to you in the sum of $195,000, The undersigned here- 
by grants you the exclusive privilege and option of paying 
said sum of $25,000 to me in cash, on or before one year 



-14- 

after the date that the Chicago Title and. Trust Company 
Owners' Guarantee Title Policy is delivered to you, or 
in lieu thereof, to postpone such payment under the 
following terms and conditions, to wit: 1. If said 

^25,000 is paid to me within one vear from the date a 
Chicago Title and Trust Company Owners' Title Policy is 

delivered to you, I shall have no further interest of 
any kind in the property above referred to or any of the 
income or avails thereof. 2. If said $25,000 is not 
paid to me within one year from the date a Chicago Title 
and Trust Company Owners' Guarantee Title Policy is 
delivered to you, said amount shall become due and payable 
after you have been repaid from the proceeds of sale of 
said property an amount equal to §85,000 (being earnest 
money" $5^,000 and $SO,000 aforesaid), plus all expenditures 

made by you for improvements to the property, sales and 
organization expenses, auditing and attorneys' fees, 

real estate commissions, overhead expenses, plus all ex- 
penses deemed necessary by you to promote the sale of the 
lots comprising said property and after the existing mort- 
gage of approximately $15,000 and the purchase money 
mortgage of $70,000 have been paid* As soon as you have 
made such full recovery, you shall then use all surplus 
funds available therefor to pay off and retire the $15,000 
mortgage on a portion of the property and the $70,000 pur- 
chase money mortgage, and then you will pay said $25,000 
to me in cash and in addition thereto give me at that time 
an undivided one-eighth (1/8) interest in and to all of 

the profits from the sale of the property involved herein. 
3. At the time of the disbursement of said $80,000, it is 
contemplated that a deed from said trustees will be given 
to you, conveying the title to your nominee and thereafter 
title will be conveyed by said nominee to a trust or to 
a corporation; so that I may receive proper assurance that 
my fees of $25)000 and the one-eighth interest, as afore- 
said, will be recognized and protected, I am to receive 
at that time a ratif ication of the agreement by said trust 
or incorporation to which title. is. conveyed." 

Betty Flower, Sam Tavalin and A. H. D'Anza accepted the 

above agreement. 

Plaintiff maintains that Tavalin is liable to him, 

for the benefit of the trust, for all damages sustained by 

the trust by reason of Tavalin' s fraudulent participation 

with the trustees or their attorney in acts or omissions 

detrimental to the trust; that plaintiff had a right that 

Tavalin should not participate in any breach of trust; that 

Tavalin was luring Hwass in order to assure for himself the 

acquisition of an extremely valuable tract of land on terms 

most favorable to him; that Tavalin concealed from the 



-15- 

trustees and the benef iciaries that he and Hwass had, by 
agreement between them, set aside a $25,000,00 fee for 
Hwass out of the 0105,000.00 remaining after the $90,000.00 
allocation to the trustees; that this allocation in itself 
xtfas deceptive, for actually the trustees were to realize 
only 075,800.00 the difference between $90,000.00 and the 
first mortgage of $14,200.00, x-:hich the buyer was assuming; 
that Tavalin also contrived to prevent the trustees and 
beneficiaries from learning that their lawyer stood to 
receive a one-eighth interest in the profits of the venture, 
which information would undoubtedly have changed the gulli- 
bility of the trustees and beneficiaries into suspicion; 
that by inserting in the offer a provision that Hwass' 

fees and the expenses for the foreclosure would be included 
within the $105,000.00, Tavalin misled the sellers into 
believing that their attorney would be paid only a fair and 
reasonable fee for clearing the taxes; that Tavalin is pre- 
cluded from deriving a.ny benefits out of his transactions 
with Hwass; that Tavalin, who knew that Hwass transcended 
his authority, is answerable to the sellers for all damages 

sustained in consequence of such wrong and transgression; 
and that the waiver and release by Hwass to Tavalin of the 
$10,000.00 was without consideration to the trust. 

As the case, so far as Tavalin is concerned, was 
decided on the pleadings, it is well to bear in mind certain 
elementary rules. Motions to dismiss or to strike admit 
facts well pleaded, but not conclusions of law or conclusions 
of fact unsupported by allegations of specific facts upon 



■Mr 






-16- 

which such conclusions rest. Allegations with regard to 
exhibits are controlled by the exhibits attached to the 
pleadings. Facts and circumstances which constitute alleged 
fraud, collusion or conspiracy should be set out clearly and 
with sufficient particularity to apprize the opposite party 
of what he is called upon to answer. It is alleged that 
Tavalin suppressed the facts with regard to the taxes. The 
act of commission or omission by which this result was 
brought about is not charged. Tavalin had a right to presume 
that Hwass, as attorney for the trustees, would act properly 
toward his clients. It is. also charged that Tavalin know- 
ingly withheld information. The complaints do not set out 
when and where he was asked to supply information. It is 
charged that Tavalin aided and assisted in keeping facts 
from the trustees and beneficiaries, but no overt act is 
alleged to justify this conclusion. 

The documents show clearly that the offer was 
accepted and the trustees were authorized to carry out the 
deal by more than the requisite number of beneficiaries. 
The best evidence of the so-called "side deal" is the docu- 
ment stating its. terms. Tavalin does not know what Hwass 
told his clients. There are no allegations in the pleadings 
as to any specific communications of Tavalin with anybody 
except in writing. Tavalin was not obligated. to pay anyone 
connected with the deal any more than he paid. The offer, 
the acceptance and the consent of the beneficiaries shoxv 
that Tavalin promised to pay to the trustees $90,000.00 in 
the manner set forth in the offer, and there is no allega- 
tion that this obligation has not been met. As a condition 
to Tavalin' s obligation to pay the $90,000.00, the taxes 
and specials had to. be. settled within the figure of an 
additional $105,000.00. Tavalin agreed to pay up to that 
amount, but not to pay that amount in all events. Within 



-17 - 

that amount not only the money required to discharge the 
generals and specials was to be found, but also expenses 
and attorneys 1 fees. The attorneys' fees for Hwass and 
D'Anza were to be paid as set forth in the agreement. 
Under that agreement Tavalin had the option to pay $25,000.00 
one year after closing or to postpone the payment until. the 
Lincolnwood development observed a profit, when $25,000.00 
was to be paid out of the profit, plus one-eighth of the 
remaining profit. Hwass and D'Anza (or the latter' s estate) 
on the one side, and Tavalin on the other, compromised that 
option by Tavalin paying the $15, 000.00 in cash. We agree 
with. Tavalin that plaintiff had no interest in that settle- 
ment. There are no sufficient allegations that Tavalin par- 
ticipated in any breach of trust. Tavalin was a purchaser 
of real estate from the trustees who were represented by a 
member in good, standing of the bar of Illinois. He agreed 
to oay $90,000.00 for the property and there is no allega- 
tion that this amount has not been paid in accordance with 
the terms of the offer. The trustees and beneficiaries were 
fully informed that up to $105,000.00 might be spent in the 
process of removing the lien of general taxes and special 
assessments. It is alleged that Hwass did not inform his 
principals of the breakdown of the $105,000.00 between fees 
and other expenditures. There is no allegation that Tavalin 
was ever asked about this breakdown and no allegation that 
Hwass informed him that he, Hwass, had not fully informed 
Hwass' principals. So far as the trustees and the benefici- 
aries are concerned, the deal was for $90,000.00. While the 

parties contemplated that an Owners' Guarantee Policy for 
$195,000.00 would be issued, . it is clear that the sellers 

were to receive only $90,000.00, (less the amount of the 
first mortgage), out of which they were to pay a commission 
to Hwass. 



-18- 

The Offer of March 3, 1945 clearly states that the 

sellers are to receive only the sum of $90,000.00, and that 
there is no obligation on the part of Tavalin to deliver to 
the sellers any part of the unexpended balance from the 
$105,000.00 set aside for the purpose of clearing the property 
of taxes, special assessments and paying all the expenses 
incident thereto, including attorneys' fees. The authoriza- 
tion to the trustees from 8 of the beneficiaries to accept 
the offer recites that they understood that Hwass was to 
receive compensation from the purchaser for his services in 
negotiating settlement of taxes, special assessments and con- 
cluding tax and special assessment foreclosures. Under the 
trSst instrument the trustees were authorized to act on the 
direction of 7 of the beneficiaries. While it was their 
duty to consult with all of the beneficiaries, a third party, 
such as Tavalin, was fully justified, in relying upon the 
authorization by the 8 beneficiaries. The sale, so far as 
the beneficiaries and trustees were concerned, was for 
$90,000.00. We cannot discover in the complaints any properly 
pleaded allegations charging Tavalin with fraud or conspiracy. 
Tavalin never agreed unconditionally to pay the sum of 
$105,000.00 to discharge the lien of the general taxes and 
special assessments. He agreed to pay only such part thereof 
as was necessary to accomplish this result, nor did Tavalin . 
unconditionally promise to pay $25,000.00 as attorneys' fees. 
The agreement. to pay $25,000.00 as fees was contingent upon 
future events. He compromised this contingency. Plaintiff 
has no just ground to complain about this compromise so far 

as Tavalin is concerned. 

We are satisfied that the chancellor was right in 

sustaining the motion of Sam Tavalin to strike the complaint 

as supplemented and amended and in dismissing it for want of 

equity. Therefore, the decree of the Superior Court of Cook 

County is affirmed. 

DECREE AFFIRMED. 

KILEY AND LEWE, JJ. CONCUR. 



44456 

PEOPLE 'OF THE STATE OF ILLINOIS, 
ex rel. NORINE BSRGQUIST, INEZ 
CHAMPION, KATHRYN BURKE, JULE 
DOYLE, MARY LAMSON, ANNA FLANAGAN, 
and IvIARY A. PARKER, 

Appellees, 



v. 



3 37I-A- #1 



f 



WALTER L. GREGORY, and JAMES B. 

CASHIN, Civil Service Commissioners ) 

of the City of Chicago; JOHN C. ) 

PRENDERGAST, Commissioner of Police ) 

of the City of Chicago; JOSEPH T. BARAN, ) 

Treasurer of the City of Chicago; and ) 

ROBERT 3. UPHAIvI, Comptroller of the City ) 

of Chicago, ) 

Appellants. ) 

) 



) 

) APPEAL FROM 

) SUPERIOR COURT, 

) COOK COUNTY. 




MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. 



^> 



This is a mandamus action to compel defendants to 
reinstate plaintiffs as Civil Service Policewomen in the 
Police Department of Chicago. The writ was issued to compel 
their reinstatement in the classified service, their 
re-assignmemt to duty and their restoration to the City 
payroll. Defendants have appealed. 

There are thirteen) plaintiff s. All but Norine 
Bergquist had served as policewomen under temporary 
appointments beginning at various dates since 1934. They 
took the Civil Service examination for the position of 
policewoman September 9, 1946. The list of the suoceseful - 
candidates was posted December 4, 1946. The names of all 
the plaintiffs were on the list. They were certified by 
the Civil Service Commission to the Police Commissioner 
December ]_6, 1946. On that date they were appointed police- 
women and be-Tan their six months' probationary service. 
February 21, 1947, they were discharged. Their demands 







% 



." - .. ". -'V 



.. .. . , ( 



M 




2. 

for reinstatement we^e denied and this suit followed. 

The question whether plaintiffs were entitled to 
the writ involves a determination of the regularity and 
legality of the actions of the Commission after certification. 
It also involves the propriety of their discharge after 
certification for falsification of their ages in an applica- 
tion prerequisite to the Civil Service Examination. 

Defendants made a motion to strike the complaint. 
The motion was denied and defendants answered* Subsequently, 
evidence was presented by both parties. The question of 
the sufficiency of the complaint was accordingly waived. 
Cottrell . v. G-e^son , 371 111. 174. Lyndon v. T^ ust Co . 310 
111* App. 540; Shoup v. Alexander l.Iotor Garag e, 333 111. 
App. 46, 76 N.E. (2d) 547. 

efore /their appointment plaintiffs, who were 



temporary appointees, were required to fill out in their 
own handwriting small history cards. These contained, 
among othe^ things, their addresses, birthplaces, former 
occupation, and date of birth. The information on these 
cards was copied onto a larger form which provided space 
for the future pertinent entries. These records are kept 
unde 1 " the supervision of the Secretary of the Police 
Department. They are not Civil Service Commission records. 

The Civil Service application forms recite that "Proof 
of false statements in any applications shall be grounds 
for *** discharge after appointment". The Police 
Commissioner on December 10, 1946, requested certification 
of fifty-one policewomen from the eligible list. The plain-, 
tiffs were among those certified and appointed December 16th. 
The Secretary of the Commission testified that after the 



■-. r 



_ 



3. 

requisition was made the Commission had an investigation 
made by the Police Department before certification* This 
is not borne out by the record which shows, for instance, 
the report on Inez Champion dated December 30, 1946; 
on No.rine Bergquist December 27th; on Kathryn Burke 
December 27th; on Jule Doyle December 38th; on Mary Lamson 
December 28th; and on Anna F. Flanagan December 28th. 
The reports were made on a Civil Service Commission form 
which calls for a full investigation of the character, 
habits, and reputation of the subject and warns the police 
that a thorough and careful investigation is wanted and 
that carelessness will result in charges against the 
investigator. The reports in the record disclose results 
favorable to the plaintiffs investigated^ 

The testimony shows that the Commission received 
written anonymous complaints that plaintiffs had falsified 
their ages in their application for the examination. The 
Secretary of the Commission called the Police Commissioner 
asking for information. The latte^ called the Secretary 
of the Police Department who furnished the information in 
writing to the Commissioner on December 31, 1946. He 
forwarded it to the Commission which thereupon commenced 
an investigation. Presumably the Commission requested the 
Commissioner to direct the plaintiffs to the office of the 
President of the Commission on January 10, 1947. They were 
not given a hearing. They were asked to submit proof of 
their ages in their applications. 

January 23rd the Commission wrote the Police 
Commissioner reviewing generally the pertinent provisions 
of the Civil Service Law respecting certification, appoint- 
ment and probation of the policewomen. It advised him that 



•: t a • -s 



\, 



4. 

during probation any action of removal "(because of mis- 
statement of age or otherwise) " should emanate from him 
and that if he thought plaintiffs had misstated their 
ages, then he could discharge them subject to the Commission's 
consent and approval. The letter cited Section 10 of the 
Civil Service Act and suggested the Commissioner be guided 
in his actions as he saw fit. Apparently he saw fit to do 
nothing. He said that plaintiffs were very good policewomen, 
efficient and with no shortcomings and that he had "no o rder 
dropping them or suspending them" until February 21, 194-7. 
On that date the Commission xvrote him again referring 
to its letter of January 23rd. It wrote that it was obvious 
plaintiffs had misstated their ages and "disqualified 
themselves for the examination". It stated that not heaving 
been advised by the Police Commissioner of the action he 
intended to take "you are, therefore, directed to request 
authority" to discharge plaintiffs. The same day the Police 
Commissioner signed a letter addressed to the Commission 
seeking authority to discharge the plaintiffs because they 
had misstated their ages and "disqualified themselves for 
the examination". Authority was granted February 26, 1947, 
and the plaintiffs were discharged. The lette 1 - signed by 
the Commissioner was prepared by the Commission because, 
according to him, he neither requested nor made the investi- 
gation. He did not think he had powe - " to make it and any 
irregularity was in the application and "they had charge 
of the application. " 

Defendants contend that plaintiffs were duly 
discharged in accordance with Section 10 of the Civil Service 



/ 



5. 

Act, since they were discharged during the six months 
probationary period by the Police Commissioner who notified 
the Commission in writing of the reason for the discharge 
and obtained its consent and authority. Plaintiffs claim 
that the Commission acted illegally in conducting the 
character investigation after certification and that it 
usurped the power of the Commissioner by directing the 
discharges. 

Plaintiffs had the burden of showing a clear right 
to the writ of mandamus. People ex rel. Elmore v. Allman , 
332 111. 156. Since they were probationers they came 
within Section 10 of the Civil Service Act. Fish v. LicQ-ann , 
205 111. 179. Section 10 of the Act gives power to the 
Department Head to discharge during probation with consent 
of the Commission upon notifying it in writing of his 
reason for the discharge. The Commission has only such 
power as is given it by statute. G-ilbert v. Hurley , 336 
111. App. 205. It operates under, rules made by it undo - " 
authority of Section 4 of the Act. These are as binding on 
it as though made by the Legislature. Llndholm v. Doherty , 
102 111. App. 14, 29. Rule 4, Section 5 provides that in no 
case should a probationer be discharged until the appointing 
officer has been notified in writing of the approval of the 
Commission. Under Regulation 9, Section 1, the Commission 
was required to investigate the character of eligibles 
in advance of certification. We have pointed out that 
investigations in these cases were made afte"" certification 
and appointment. Rule 2, Section 6 provides for dismissal 
from service for false statements in application but only 
after the appointee has been given an opportunity to be 






6. 

heard in his own defense. It is not claimed that the 
dismissal of plaintiffs was under authority of this rule. 
Defendants denied that they discharged, or brought about 
the discharges, of plaintiffs. 

We think it is a fair conclusion from the record 
that the Commission did by indirection in these cases 
what it could not do directly. After certifying plaintiffs 
the Commision was faced with the knowledge that there was 
a discrepancy between the ages stated in the Police 
Department records of plaintiffs, except Norine Bergquist, 
and those in the applications. It initiated and conducted 
the investigation. Because of Rule 2, Section 6, it could 
not dismiss plaintiffs without a hearing. It had no power 
to discharge plaintiffs. This was the prerogative of the 
Police Commissioner. It invited him to discharge them 
in its first letter. He did nothing, being satisfied 
with the performance of their probationary duties. The 
Commission then directed him to discharge plaintiffs. The 
Commissioner presumably was not certain of the regularity 
of the proceeding. He asked the Commission to prepare the 
letter, v, , 3 g Ues t;:L n g consent of discharges, because the 
i~r e gul. ar 2.1:y occurred during the period of the Commission's 
jurisdiction. 

It was the function of the Commission to determine 
the qualifications of the applicants for the examination. 
It would soon that the records under the supervision of 
the Secretary of the Police Department were suitable means 
to be used in the determination, except as to Norine 
Bergquist. The probationary period is to enable the 
Department Head to determine the competency, character, and 



7. 

discretion of the probationer. Blake v. Lindblom , 225 

111. 555. '*7e do not say that lying about age or any other 

matte 10 is not a defect in character. Neither do we say 

that previous lying would not be a reason for discharge 

under Section 10 of the Acta We do say that it is plain 

from the record that the reason given for the discharge 

of plaintiffs in the letter of February 21st was not the 

Police Commissioner's reason but that of the Commission. 

The Commission was not the Commissioner's agent in making 

the investigation. It initiated it and carried it through. 

Rather the Police Commissioner was the ardent of the 

Commission to ca^^y out its purpose of bringing about the 

discharges. The r3ferences in the exchange of letters to 

disqualification from taking the examination are meaningless, 

since the examination was taken and the results posted, unless 

considered in connection with Rule 2 , Section 6. For some 

■"eason the Commission did not proceed to dismiss plaintiffs 

under that rule. To accomplish its objective it used the 

Police Commissioner and his discharge power under Section 10. 

Prior to 1941 the age limits fixed by the Commission 
for qualification for the examination were a minimum of 
thirty and a maximum of forty-five yea^s. Thereafter, and 
at the time of the 1946 examination, the limits were twenty- 
five and forty years. There is a discrepancy in the records 
of plaintiffs', except Norine Bergquist, ages at the time 
of their temporary appointments and in their applications 
for the examination. If the previous "ecord of their ages 
is correct, they were at the time of the examination over 
the maximum age limit fixed by the Commission. 

The Sity argues that condoning plaintiffs' 1 actions 



8. 

will have an adverse effect upon the integrity of the Police 
Department • We do not approve or condone falsification 
of ages as a means of obtaining employment* People ex rcl . 
Jendrick v. A llman , 396 111. 35. The Commission had the 
means of protecting the integrity of the Department. Rule 
2, Section 6 empowered it to take steps before or afte" 
examination. It chose not to follow the Rule. The way to 
integrity in the Police Department is not through extra- 
legal procedures of administrative boards, no matter how 
laudable the objective or how serious the evil sought to be 
co^^octed. The way to integrity on the part of employees 
is through orderly legal procedures on the part of those 
in charge of employees. The Civil Service Act was intended 
to bring about efficiency, stability and security in public 
employment, le think the Commission acted arbitrarily and 
consequently the discharge based upon their action should not 
stand. 

The writ properly issued. The judgment is affirmed. 

JUDGMENT AFFIRMED. 

BURKE, P.J., and LE7E, J., CONCUR. 



-< 



3 37I.A. 661 



44514 

EVANG-ELES DOROPOULOS, ) 

Appellant, 5 

v. ) SUPERIOR COURT 



APPEAL FROM 



PETER MILLER, 

Appellee. ) 



) 



OF COCK COUNTY. 




FIR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. 

This is an action in equity to compel defendant 
to execute. a five-year lease of premises used as a tavern 
in Chicago. Upon a report and supplemental report of a 
Master in Chancery, the Chancellor entered a decree dis- 
missing the complaint for want of equity. Plaintiff has 
appealed. Defendant has cross appealed from a decretal 
order taxing half of the costs against him. 

The premises involved are located at 1553 - 1555 
East S7th Street, Chicago. They are known as the Continental 
Tavern. Defendant and his sons. operated the tavern until 
plaintiff became tenant in 1940. For a few years prior to 
1938 plaintiff had worked for defendant in the tavern as 
bartender. 

In April, 1940, a five-year lease commencing May 

1st, at '2200.00 per month was entered into by plaintiff and 
defendant. At the expiration of that lease defendant 
remained as a tenant under two successive yearly leases at 
$250.00 per month. The term of the second of these expired 
April 30, 1947. .In November, 1946, defendant gave plaintiff 
notice to vacate. This suit followed and the Chancellor 
stayed a forcible detainer action previously filed by the 
defendant. 



-2- 

Plaintiff alleged that when he made the first five- 
year lease in April, 1940, defendant orally agreed to a 
second five-year lease beginning May, 1945; that in consid- 
eration of plaintiff making extensive repairs and improve- 
ments in the premises for defendant, the oral promise was 
repeated December 17, 1944; that at that time defendant 

promised to retain a 3500.00 deposit - made by plaintiff 
in 1940 for application to the March and April, 1945 rent - 
to be applied in March and April, 1950; that at the same 
time defendant agreed to sell plaintiff the tavern fixtures 
on a five-year plan, but thereafter stated that he did not 
want to "tie up" the property with a five-year lease and 
would grant successive yearly leases; that December 19, 1944, 

plaintiff signed the first yearly lease; that January 10, 
1945, he purchased the fixtures and gave defendant a five- 
year chattel mortgage; and that January 15, 1946, plaintiff 
signed the second yearly lease. Defendant admitted the 
execution of these several instruments, denied making any 
oral agreements and averred that all promises between the 
parties were contained in the instruments. 

In the original report the Master concluded that 
it was immaterial whether any oral conversations \tfere had 
between the plaintiff and defendant. The Chancellor re- 
referred the case for a specif ic. finding as to whether there 
was an oral agreement as alleged. In the supplementary 
report the Master found that there was no oral agreement to 
give plaintiff a second five-year lease and that, on the 
contrary, the written lease for a year was made in December, 
1944. He further found that thereafter defendant promised 
orally to give plaintiff a lease so long as defendant owned 



-3- 

the building but that no such lease was given and that, on 

the contrary, another written lease was made. The Chan- 
cellor 1 s decree approved the reports and followed the 
recommendations of the Master. The injunction staying the 
forcible detainer proceedings was vacated. Any statements 
or expressions of the Chancellor prior to the entry of the 
decree are not controlling. The decree speaks for itself. 

The parties contradict each other upon the issue 
of the oral agreement for a second five-year lease. There 
is testimony by plaintiff's cousin corroborating him and by 
defendant's son corroborating defendant. There is testimony 
by a disinterested witness that plaintiff and his attorney 
told the witness in January, 1946, that plaintiff's lease 
expired in April, 1947, but that they could get a three- 
year leage from defendant if they had a buyer for the 
premises. Under this state of the evidence we see no reason 
to make findings different from. those of the Master which 
were approved by the Chancellor. 

There are circumstances in addition to his testi- 
mony which are favorable to plaintiff. Defendant did not 
return plaintiff's $500.00 deposit at the termination of 
any of the three leases. The defendant accepted a chattel 
mortgage for five years covering the sale of the fixtures. 
These circumstances, however, do not change our opinion that 
the decree is right in finding that there was no oral agree- 
ment proyed of which plaintiff could compel specific per- 
formance. The proof was required to leave no reasonable 
doubt of the oral contract. ( Anderson v. Anderson , 380 111. 
438, 499). The decree found that defendant had satisfied, 
the requirement of the Master's report by depositing o575.00 
with the Clerk of the Court for olaintiff's benefit. 



The chattel mortgage contained a provision that 
the fixtures should. not be removed from the premises until 
completely paid for. The Master found that in view of this 
provision defendant must have intended plaintiff to remain 
and plaintiff must have expected to remain. He found, never- 
theless, that in spite of the intention and expectation, and 
in spite of the fact that plaintiff had increased the tavern 
business from $20.00 to $100.00 per day, a promise to giye a 
lease for more than one year would have to be in itfriting. 

There is no merit in plaintiff's contention that the 
chattel mortgage satisfied the requirement of the Statute of 
Frauds. It was not an agreement to give a second five-year 
lease. In view of our conclusion on the question of an oral 
contract we need not consider the. question of whether plain- 
tiff performed under the contract. There is no merit either 
in the contention that a contract for a five-year_ lease should 

be implied from the terms of the chattel mortgage. The rule 
that where one party stipulates another shall do a certain 

thing, he impliedly obligates himself to do nothing to hinder 
the other from doing the act ( Levy & Hippie Motor Co . v. City 
Motor Cab Co ., 174 111. App. 20) does not apply. Another rule 
relied on by plaintiff does not apply here. That is that where 
the act required of one can only be done upon a cooperative 
act being done by the other contracting party, the law implies 
an obligation. to do the cpoperative act ( Hudson Canal Co * v. 
Penn. Coal Co ., 8 Wall. (U. S.) 276; 12 Amer. Jur. 766). 

The chattel mortgage does not expressly provide for _ 
prepayments, plaintiff, hox^ever, made a prepayment of Ol, 000.00. 
There was nothing to prevent his paying off the chattel 



-5- 

mortgage during the two yearly leases. .Had he paid it off, 
he could move the fixtures if he wished. We see no basis, 
therefore, for application of the doctrine of estoppel. No 
case or rule cited would justify our precluding defendant 
from denying plaintiff had a lease after April 30, 1947. 

Plaintiff argues from analogy of an executory pur- 
chase of real estate, where a purchaser under contract is 
permitted to remain in possession so long as he makes con- 
tract payments. He says that defendant here was vendor and 
plaintiff, vendee, under the five-year contract to purchase 
the fixtures. We have read the cases cited on this point. 
They might be analogous if defendant had sought, to re- 
possess the fixtures where there was no default. Thev have 
no application to the facts in this case. 

Finally, we believe that the one-year leases are 
conclusive of the ultimate agreements of the parties after, 
the first five-year lease, ( Strehl v. D'Evers . 66 111. 77). 

We see no reason to disturb the decretal order tax- 
ing half of the costs against defendant. The record show 
that both master and Chancellor believed there were equitic 
in plaintiff's favor but that he did not make the proof 
required in cases of specific performance.. In view of the 
circumstances, we cannot find that the Chancellor abused his 
discretion in this respect. 

For the reasons given the decree is affirmed. 

DECREE AFFIRMED.. 

BURKE, P.J. AND LEWE, J. CONCUR. 



:s 

.es 



44692 
44719 
ELI METCOFF and THOMAS MEIER, 

Appellants, 

v. 

NEWTON C. FARR, GEORGE G. BOGERT, 
HAROLD G. TOWNSEND, DAVID L. 
SHILLIr'GLAW and WARREN CANADAY, 
Trust Managers of the Flamingo 
Hotel Liquidation Trust, CHICAGO 
TITLE AND TRUST COMPANY, as 
Trustee under Trust No. 2150, and 
SAUL PLAST, 

Appellees. 



3 37I.A. 662 



) 
) 

) CONSOLIDATED APPEALS 
) 

) 

) FROM THE SUPERIOR 

1 

) COURT OF COOK 

) 

) COUNTY. 







MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. 

These are actions by beneficiaries of the Flamingo 
Hotel Liquidation Trust against the trustee and trust manag- 
ers. The first suit was to restrain a private sale of the 
property and for a judicial sale with competitive bidding . 
at not less than a "guaranteed" bid procured by plaintiffs. 
After a hearing a decree was entered dismissing this suit. 
The second suit sought to have the acceptance of a bid for 
the property declared void and a judicial sale with com- 
petitive bidding. Defendants' motions to strike and dismiss 
were sustained and an order entered accordingly. Plaintiffs 
aopealed separately from the decree and order. The appeals 
were consolidated in this court, 

A different aspect of. this trust was. before this 
court in Metcoff v. Farr, et al ., 330 111. App..432. The 
property had been reorganized under federal law. Bond- 
holders had exchanged their bonds for certificates of bene- 
ficial interest under an agreement of July 5, 1935, creating 



-2- 

a liquidation trust with defendant bank. as trustee and the 
individual defendants as trust managers. The trust purpose 
was the sale and liquidation of the property and distribution 
of the proceeds as soon as practicable in the opinion of the 
trust managers. They were empowered to direct the trustee 
to sell to any person at any time subject to Article V. of 
the agreement with respect to notice to, and approval by, 
the beneficiaries. The original trust term of five years 
was extended to July 5, 1950. Unless previously sold, the 
property must be sold upon termination of the trust at 
public sale. 

The trust managers notified the beneficiaries in 
writing August 6, 1948, of a cash offer of $875, 000.00 for 
the property. They stated they regarded the offer as 
worthy of consideration; that it was subject to a mortgage 
payment, expenses and fees, and a brokerage commission of 
$27,250.00; and that the net. proceeds of the sale per unit 
would be about fifty-four (0.54) cents. The beneficiaries 
were advised of an alternative plan devised by a group of 
beneficiaries, none trust managers, by which the beneficiaries 
might -oarticipate in a new trust or corporation to be organ- 
ized^to acquire ownership of the property beyond July 5, 
1950. Under this olan beneficiaries could continue partici- 
pation in the ownership through exchanging their present 
certificates or terminate their participation by selling 
their certificates for fifty-four (0.54) cents on the dollar. 
A card was enclosed with the notice upon which beneficiaries 
could indicate their objection to the offer of purchase, their 
aoproval or disaporoval of the new trust or corporation plan 
and their willingness or unwillingness tp sell their units 
at fifty-four (0.54) cents on the dollar. 



-3- 

On August 25, 1948, the day before the last day 

for filing dissents, Metcoff, owner of 3885 units out of a 
total of 1,502,800 filed suit. We shall state only the alle- 
gations which are pertinent and of which proof was offered. 
He charged that the notice did not disclose the names of the 
proposed purchaser or broker; that he had obtained an offer 

of $950,000.00; and that defendants had the duty to make a 
broader solicitation in order to obtain the maximum price. 
He prayed for restraint on the sale and for a competitive 
judicial sale with the $950,000 "guaranteed" price as the 
base or should it be determined that the beneficiaries have 
disapproved the sale, the court supervise competitive 
bidding with the highest bid to be submitted to the bene- 
ficiaries. 

On September 9, 1948, Meier, owner of 4,000 units, 
joined Metcoff as plaintiff. He alleged that. the original 
offeror had increased his offer to $1,100,500.00 and that 

plaintiffs had obtained an increased "guaranteed" bid for the 
same amount. On September 13th in a petition plaintiffs ' 
brought to the court } s attention an Increased "guaranteed" 
bid of $1,102,000.00, 

Defendants answered the complaint stating that 
beneficiaries had disapproved the offer, that no sale could 
be me.de without a re-submission to the beneficiaries; that 
the court was without jurisdiction to order the sale and that 
the best offer for the property would be duly submitted. In 
a supplemental answer they averred receipt of a written offer 
of $1,102,500.00 and that the offer had been submitted to the 
beneficiaries. This offer was by Saul Plast. He was the 



J> 



~4~ 

original offeror. In the notice to the "beneficiaries Saul 
Plast was named as bidder and Theodore Plast, apparently 
Saul's brother, was named broker to whom commission would be 
paid at Real Estate Board rates. These names were not given 
in the August 6th notice. The managers stated in the notice 
that they considered the bid adequate and recommended 
approval. The bid would net beneficiaries about sixty-seven 
(0.67) cents per unit. The notice also stated that a three 
cent dividend had been declared payable September 30th. 

October 8, 1948, the Chancellor heard evidence and 
entered the decree dismissing the suit. The question is 
whether he should have ordered a judicial sale as prayed by 
the plaintiffs. 

Plaintiffs argue that defendants violated the trust 
agreement by failing to. hold assembled meetings with refer- 
ence to the transaction. The agreement provides that actions 
directing disposition of the property shall be taken only at 
assembled meetings. In matters of maintenance, operation, 
preservation and control there was no such requirement. The 
record in this case shows no action. by the trust managers 
which required an assembled meeting. 

Plaintiffs refer us to the August 6th notice for 

further evidence of misconduct. They point to the strange 

fact that the active trust manager, "one of the outstanding 

real estate men in Cook County", should regard as worthy of 

consideration a bid of $875,000.00 in one month and receive a 

bid from the same person in little more than a month later of 

$1,102,500. The bids presented by plaintiffs were conditioned 

to 
upon the Chancellor conducting the sale. They were not submitted/ 



\ 



-5- . . 

the defendants. After the suit was filed on August 25th and 
the dissents determined, sealed bids were taken.. It was 
then that the original offeror bid $1,102,500.00. 

We are not called upon to say whether the court 
could in a case of abuse of trust or incompetence assume 

jurisdiction so as to protect the beneficiaries. The 
Chancellor in this case was not in error in finding that 
abuse of trust or incompetence had not been proved. There 
is no danger to the beneficiaries shown by the record. What 
danger there may have been, had passed when, either through 
efforts of plaintiffs or otherwise, the original Plast offer 
was not accepted. There was no requirement in the agreement 
that the trust managers call for competitive bids in a pre- 
termination sale. Yet the record shows they did so in the 
second instance.. Defendants xirere invested with broad powers 
in the agreement. So long as they acted properly, they, and 
not the Chancellor, had the power to direct the sale. 
Altschuler v. Chicago City Bank , 380 111. 137; First National 
Bank v. Bryn Kawr Beach Bldg. Corp ., 333 111. App. 223. We . 
think that the court entered the correct decree. In Savlt v. 
Chicago Title & Trust Co ., 329 111. App. 277, relied on by 
plaintiffs the Chancellor set aside a contract of sale and 
decreed a judicial sale. Only the disappointed contracting 
purchaser however, appealed and this court affirmed the order 
holding the contract to be beyond the trust powers of the 
managers. There was no proper challenge of the Chancellor's 
jurisdiction. 



-6- 

On November 5, 1948, plaintiffs filed. an "Original 
Bill in the Nature of a Supplemental Complaint". Saul Plast 
was made a defendant. He and the other defendants filed 
motions, to strike. Plast simultaneously filed a motion to 
dismiss. The Chancellor's order sustained the motions. 
Plaintiffs stood by the complaint and the suit was dismissed. 

The substance of the complaint is that after the 
beneficiaries had approved the final Plast bid. of 3l>102, 500. CO 
a broker named Seaman made a bid of £1,103,000.00 on behalf 

of one Silver; that coupled with the bid was a request for 
an opportunity to compete should there be a higher bid; that 
this bidder was invited to a meeting of the trust managers to 
be held October 29, 1948 and was asked to submit his highest 
bid and make an additional deposit; that the deposit was made 

but the trust managers refused to advise Silver whether there 

were bids higher than his; that the trust managers unjustly 

demanded that he make his bid without knowledge that he sought 

V 

as to other bids; that his offer was rejected; ana that the 
trust managers should have permitted him to compete with 
higher bids to the extent of an additional $20,000.00. Plain- 
tiffs charge violation of trust duties through failure ofUie 
managers to do what Seaman and Silver wanted done. 

We think the. complaint failed to state a case for 
equitable jurisdiction. There is no basis for Seaman. and 
Silver claiming the advantages they sought in bidding. How 

is plaintiffs presentation of this claim consistent with their 
concern over the greatest benefit to the beneficiaries? What 



-7- 

right had either Seaman or Silver to the knowledge of what 
other bids had been made to the trust managers? The complaint 
shows only that the managers had taken sealed bids and sub- 
mitted the highest bid to the beneficiaries and obtained 
approval. Seaman and Silver submitted a bid of $500.00 more. 
This difference of $500.00 is not enough to warrant the 
Chancellor's avoiding the acceptance of the Plast bid. There 
has to be order in bidding and we see no abuse in the dis- 
cretion exercised by the defendants. There is no. necessity 
for discussing other arguments made by plaintiffs. No reason 
is shown tehy Plast' s bid should not be accepted nor why the 
Chancellor should have ordered a judicial. sale. The Chancellor 
properly sustained the motions to dismiss. 

For the reasons given. the decree in case 44692 and 

the order in 44719 are affirmed. 

DECREE AND ORDER AFFIRMED. 

BURKE, P.J. AND LEWE, J. CONCUR. 



) 
) 

Appellee, ) 



44701 

CITY OF CHICAGO, 

v. 



KREMA TRUCKING COMPANY, a 
corporation, 

Appellant. ) 



r 
j. 



.A. 6 




APPEAL FROM 



MUNICIPAL COURT 



OF CHICAGO. 




-3> 



MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. 

This is a quasi criminal action based on an alleged 
violation of the amendatory zoning ordinance of 1942 of the 
City of Chicago. Defendant corporation was found guilty and 
fined $100.00 and costs. .It appealed directly to the 
Supreme Court of Illinois. The. case was transferred to this 
Court because no constitutional question was inyolved, 
( City of Chicago v. Krema Trucking Co ., 401 111. 411). 

The original complaint was filed May 12, 1947, against 
Joseph Krema, individually, and the defendant corporation. 
It charged a violation of the Chicago Municipal Code through 
"Failure to discontinue use of vacant lot for parking of 
trucks and trailers. District is zoned for 'Business use', 
in violation of Sec. 194-A-10." 

The individual defendant was dismissed. Defendant 
corporation answered justifying its use as a lawful non- 
conforming use under Section 19, of the 1942 ordinance by 
reason of its permissive use, as either a motor vehicle 
terminal or garage, under the 1923 zoning ordinance. 

The property involved was purchased in October, 1941, 
while the 1923 ordinance was effective. It is vacant and 



-2- 

located at the southeast corner of North Larrabee Avenue and 

West Menominee Street. It measures 250. feet on Larrabee 
Avenue and 125 feet on Menominee Street. Defendant pur- 
chased the property from the bankrupt estate of Hetzel & 
Company. That company had used the property for manufact- 
uring, storage and trucking of sausage. Across the alley 
to the east, fronting on Mohawk Street was the Hetzel & 
Company powerhouse. Part of the foundation of this building 
remained on the Mohawk Street lot when this controversy 
arose in 1948. 

On the vacant property when purchased were several 
dilapidated buildings which defendant had demolished and 
removed. Basement spaces which remained were filled and 
the vacant land levelled, Defendant placed a high wire 
fence about the property. 

Before purchasing this property in 1941, defendant, 
xtfhich is engaged in the motor-freight transportation business, 
had also purchased, in 1936, from the Hetzel & Company 
estate the property across the street on the northeast corner. 
This property was improved with a somewhat deteriorated brick 
building which had been used by Hetzel & Company in the 
sausage business. Part of it was used as a stable for its 
dray horses. Defendant rehabilitated the structure and has 
used it since that time as an unloading and loading place 
for the freight transported by its motor trucks. Here un- 
loaded freight is reloaded according to its destination and 
loaded trailers are parked in the vacant area across the 
street to await a driver and truck. They are parked there 
sometimes for hours and sometimes for several days. There 



-3- 

i^as testimony that the vacant property was used in March 
of 1947. and previously for the storage of motor trucks and 
trailers in a bad state of disrepair, some of which was 
"junk". There is also testimony that as much as sixteen 
yards of crushed stone, many metal barrel?, and a quantity 
of lumber had been stored on the property. We think it is 
quite fair to say, however, that the principal use of the 
vacant property was as an adjunct of defendant's terminal 
across the street. In transferring the case to this Court, 
the Supreme Court said on page 415: "The evidence clearly 
shows that the use made of the tract was as an adjunct to 
the freight terminals and no other". This was the use to 
which. the property was being put when this complaint was 
filed. 

When defendant purchased both of these properties, 

the district embracing them was classified under the 1923 
zoning ordinance as "Commercial". Under the amendatory 
ordinance of 1942 it is classed as "Business". The use of 
the property by defendant does not conform to the 1942 
ordinance. Section 19 of that ordinance, however, provides 
that nonconforming uses which were lawful under the prior, 
ordinance could be continued as lawful nonconforming uses. 
The question is, therefore, whether defendant's use came 
within the "Commercial" use established in the 1923 ordinance. 

Defendant in its answer set up the defense of res . 
judicata or estoppel by verdict to bar the present action. 
This alternative defense was based on a prior suit against 
Joseph Krema, individually, for the same violation in the 
use of the same property. Krema was found not guilty and 



_4_ 



V 



was discharged. Defendant contends that since Krema is the 
largest stockholder and conducts the business as active 
head of the corporation, there is a substantial identity of 
parties in the prior and the instant action. Krema was 
sued personally, not as a corporate officer in the prior, 
suit and the corporation was in no wise legally involved. 
vfe think the rule announced in the ( City of Elnhurst v. 
Kegerreis , 392 111. 195, ) should not be extended to cover 
this case. Krema' s relationship to the corporation is 
different from that of the Superintendent of Building Con- 
struction of the City of Elmhurst to that city, and is 
different from that of Trustee Hummel to his predecessor . . 
in( Hummell v. Equitable Insurance Society , 151 F. (2nd) 994}. 
Defendant would not have been bound had a judgment assessing 
a. fine against Krema been entered in the first case (Kessler 
v. Fllgel, 269 N. Y. S. 664, Aff'd. 195 N. E. 176). There 
was no privity between them. It cannot avail itself of a 
judgment in his favor. Neither the doctrine of res judicata 
nor estoppel by verdict is applicable. Wedo not consider 
Board of Education v. Crilly , 512 111. App. 16, nor Bauer. 
v. The Ray Schools - Chicago Inc . #44368, recently decided 
by the second division of the Court, applicable to the 
factual situation in the instant case. 

The next question is whether defendant's use of the 
property prior to December, 1942, was lawful. If it were, 

I then it is lawful now. as a nonconforming use under Section 19 
of the 1942 ordinance. It is conceded that the 1923 ordin- 
ance did not expressly. permit the use of the property for 
a motor truck terminal. Defendant says that that use is 



-5- 

implied in the ordinance under "(Section 8,) Commercial 
District", in provision "C 1 use" for "Railroad or water, 
freight station or storage, team, loading or unloading track 
or private track, or wharf,". 

Those uses under the 1942 ordinance are classed as 
"Manufacturing". The district embracing the property here 
is classified under the 1942 ordinance as "Business" • 

Street cars operate on Larrabee Avenue. Across the 
street on Larrabee Avenue from defendant's vacant property- 
is a wooden shed used as the office of the Donovan Trucking 
Comoany xfhich operates two trucks. Across on Larrabee Avenue 
from defendant's building is the Hahn Trucking Company, the 
operator of four or five trucks. It appears from the record 
that truck traffic is heavy on Larrabee Avenue as well as on 
Menominee, Mohawk and other nearby streets. There is testi- 
mony of people living in the vicinity of the property with 
respect to its use in March, 1947, and previously. *n view 
of what the Supreme Court of Illinois said as to the use of 
the vacant property and in view of the question involved, we 
deem the testimony irrelevant. It is not contended that if 
legal, defendant's use of the yacant property constituted 
a nuisance. City. of Chicago v. Reuter Bros. Iron Works, Inc . 
398 111. 202, 208. In this connection we should point out 
that the question of constitutionality of the ordinances 
involved has been eliminated from the case by the Supreme 
Court. We are not required to consider questions concerning 
the validity of the ordinance, reasonableness of the classi- 
fication and the like. There is only the question of the " ' 
trial court's construction of the pertinent portion of Section 
8 of the 1923 ordinance. 



-6~ 

We think that construction of zoning ordinances 

should be reasonably liberal in favor of the free use of the 
property by the owners. Defendant paid $55, 000.00 in 1935 
for the improved property at the northeast corner of 
Larrabee Avenue and Menominee Streets. It paid $15,000.00 
for the vacant lot in 1941. Presumably when these properties 
were purchased, defendant's representative consulted the 1923 
zoning ordinance then in effect. The previous use to which 
the property had been put was known. The purpose for which 
the properties were obtained was to operate the motor-truck 
freight business. The ordinance of 1923 did not expressly 
cover defendant's business. A City zoning map of the area 
in possession of the Zoning Department showed the northeast 
corner of Menominee and Larrabee Streets and across the part 
of the map designating that property was printed "Motor 
Truck Freight Terminal". The supervisor of records of the 
Zoning Department testified that the words were placed on the 
map before 1942. Under the 1923 ordinance railroad or water 
freight stations were permissive uses in the district, we 
think a reasonable construction of the 1923 zoning ordinance 
compels the conclusion that a motor-truck freight terminal 
was a lawful use in the district by implication. The attorney 
for the City in oral argument stated that this construction 
runs counter to the marked evolution of the district to a 
higher use. It is true that the 1942 ordinance has changed 
the classification of the east side of Larrabee Avenue to a 
"Business" district. In its brief, however, the City says 
that this change was not one of substance. It is cur view 
that a gross injustice would be done to defendant corporation 

under the circumstances in this case by any other conclusion 
than that. the trial court erroneously construed the 1923 
ordinance. 



-7- 

In February, 1946, defendant applied to the Board of 
Zoning Appeals for a variation. The City argues that this 
amplication admits that defendant's present use is non- 
conforming and that it should be precluded from now contend- 
ing otherwise. The action. against Joseph Krema individually 
was begun February 8, 1946. It is likely that prior thereto 
there was an inspection of the premises and notice of vio- 
lation. It is likely also that defendant's amplication for 
variation arose out of these preliminaries. Defendant may 
have believed that a variation of the requirements of the 
1942 ordinance was an easier alternative than judicially 
establishing the lawful use under the 1923 ordinance. We 
see no reason why estoppel should operate against the 
defendant by reason of the amplication. 

The judgment is reversed, and the cause remanded 
with directions to enter judgment for defendant and against 
plaintiff. 

REVERSED AND REMANDED. 

BURKE, P.J. AND LEWE, J. CONCUR. 




44722 
44723 
CITY CF CHICAGO, 

v. 



) 



Appellee, 



i 

JEAN HANSEN and MARTIN OCHS, ) 

) 
Appellants. ) 



337I.A. 663 



CONSOLIDATED APPEALS FROM 



MUNICIPAL COURT 



OF CHICAGO. 




MR. JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. 

These are quasi- criminal actions which charge that 
defendants "Did make or aid in making an improper noise, riot, 
disturbance, breach of peace, or diversion tending to a breach 
of the peace, with ( sic ) the limits of the city". Chapter 
193, Section 1, Sub-section 1, Chicago Code 1939. The 
defendants were arrested without warrants by police officers 
of the City. Separate complaints, sworn to by a police 
officer, were filed with leave of court. Upon demands by the 
defendants the cases were tried together by a jury which 
returned sepo.rate verdicts of guilty. Fines of 0200.00 were 
imposed and judgments entered therefor by the trial court. 
Defendants have appealed and on motion the appeals were con- 
solidated in this Court. 

Before trial defendants' motions to suppress the 
evidence, on the grounds that their arrests were illegal be- 
ing without warrant, were denied. At the close of the plain- 
tiff's case and at the close of defendants' case, defendants 1 
motions for directed verdicts were denied. Defendants' . contend 
that the court committed error in these several rulings. 



The defendants were arrested about 11 a.m, July 8, 
1948 in Room 1207 of a hotel in the City of Chicago, With 
them .at the time was James Barsella who died before the 
trial. Barsella and Ochs had been at court that morning and 
had gone to the defendant Hansen's room. When the arrest 
was made, Barsella was in shorts and socks, Ochs was in bed 
under the covers, nude, and defendant Hansen was sitting on 
the bed in a bathrobe or negligee. The arrest was made with- 
out a warrant. The officers had gone to Room 1207, heard 

nothing at first, stood there "for a minute or two" and heard 
two men and a woman talking in the room. After they had stood 
there about five minutes, they heard a woman say, "Jiramiel 
JimmieJ, StopJ You are killing me"; "JImmiel Don't I It is hot 
as fire." or similar words. The policemen thereupon knocked 
at the door which was opened at once by Barsella who recognized 
the policemen and upon their, inquiry as to what was going on 
in the room, invited them in. They found the situation as 
described herein above. The police searched the room. They 
saw no instrument or object in the room which was "hot" but 
saw cigarettes and a cigarette lighter.. Defendant Hansen had 
no burns on her. They found no weapons. The defendant Hansen 
was not married to either of the men with her, according to 
the conversations related by the policemen who said that 
Bj rsella told them she was his girl. 

The defendant Ochs testified that after he and 
Barsella left court July 8th, the latter called defendant 
Hansen who said she was going to work; that they went to her 
room; that she was bathing; that Ochs undressed and went to 



-3- 

bed and Barsella ordered coffee; that someone telephoned the 
room and asked if Barsella was there; and that "three minutes 
later" the police came in and "threw the room upside down", 
Ochs said that defendant Hansen did not speak the words 

attributed to her. There was testimony by the officers that 
they were told, upon their inquiry, that there was no trouble 
in the room, that a post-court celebration was in progress 
and the occupants of the room were waiting for the bellboy 
to bring ice for some drinks. There was also testimony that 
defendant Hansen had resided in the hotel five months prior 
to arrest and that her reputation as a peaceful, law-abiding 

citizen in the hotel was good. 

The transcript of proceedings indicates that the 
jury found defendants not guilty on a second charge which is 
not specified by the record. Defendants did not ask that the 
charges against them be more particularly defined and they 

were presumably satisfied to proceed to trial together on 
the complaints made. Sufficient proof of any one or more of 
the component parts pf the charge in the. complaint should, 
sustain the verdicts. City of Chicago v. Meyers , 133 111. 
App . 345 . 

At the outset it is xirell to point out that we are 
of the opinion there is no proof in the record of a breach 
of the peace or diversion tending to a breach of the peace 
and certainly none of riot. The City contends the two 
defendants were properly convicted of the offenses of "lm— . 
proper noise and disturbance" • We think City of Chicago v. 

Terminiello , 400 111, 23 (cert, granted by the U. S. Supreme 
Court Dec. 13, 1948) is inapplicable. 



H 



-4- 

¥e disagree with the City that it is immaterial 
whether the defendants' acts were committed in private or 
public if it means that the acts need not affect the public, 
life think that the City was required to prove the "improper 
noise" was such as was likely to disturb the public and 
that the "disturbance" did. disturb the public* People v. 
Monier, 280 N. Y. 77, 19 N* E. (2) 789; City of Chicago v. 
LIurray , 333 111. App* 233 1 We have been referred to no case 
where privately made improper noises or disturbances have 
been sufficient upon which to convict persons in quasi-criminal 
crises. The case of G-arven v. City of Waynesboro , 15 G-a. App. 
633, 84 Si E. 90, cited by the City is not helpful. Little 
light has been shed for an understanding of the vague offense 
of making an "improper noise". Furthermore we believe the 
three policemen who appeared to have been the only ones 
affected cannot be considered the. public. They were listen- 
ing at the door of a private room. Presumably they were 
seeking to apprehend someone whom they knew or had reason to 
believe was in the room. They had no warrant and we assume 
had no knowledge of any crime which the person or persons 
sought had committed. If they had, we assume the defendants 
would not have been charged as they were* 

The arrests were made for the alleged offenses, 
committed in the presence of the officers* The offense was 
not in what they saw but what they heard. The specific charges 

are based on the words spoken by the defendant, Hansen. There 
is no evidence of any other alleged "improper noise" or 
"disturbance". Officer Kush heard her, "Say as though in 
pain"; Lieutenant Hackett heard her, "Say"; and Officer Glynn 



i- 



X" 



-5- 

heard, "Some screaming and shouting. We heard a woman's voice 
say * * *•" This is the only relevant testimony of the 
offenses charged, ''/hat the officers found later xiras not in 
their presence at the time they heard the words. The situa- 
tion they found may have had an explanatory bearing : retro- 
spectively on the words they heard, It had no bearing on 
what they heard when they heard it. The offense of "improper 
noise", at least, had nothing to do with the ideas conveyed. 
It had to do with the sounds made. The testimony of Officer 
Glynn alone could conceivably be said to tend toward proof 

of "improper noise". In a quasi-criminal case however we are 
not prepared to hold that what he said he heard in his situa- 
tion at the time tends to prove what vjould.be an "improper 
noise" to the average member of the public. 

There was no proof that the defendants made a "dis- 
turbance" except that of the police officers as to the words 
heard. There is no proof that the police officers or anyone 
else in the hotel was disturbed. Situated as the policemen 
were, listening at the door, we believe that the jury, if it 
so found, was not justified in finding that they were dis- 
turbed. Reasonable inferences of "disturbance" of the police 
officers is not warranted from the testimony of what they did 
upon hearing the words. 

For the reasons given we believe the trial court 
erred in denying the motions for directed verdict. The judg- 
ments are reversed and the causes are remanded with directions 
to enter judgments for defendants and against the plaintiff. 

REVERSED. AND REMANDED. 
BURKE, P.J. AND LEWE, J. CONCUR. 



44679 

BIESSIE BERGER, 

v. 
BEN CHEMERS, 



8 37I.A. 664 f 



Appellant, 



) 
) 
Appellee. ) 



APPEAL FROM 

MUNICIPAL COURT 
OF CHICAGO. 







MR. JUSTICE LEWE DELIVERED THE OPINION OF THE COURT, 

This is a forcible detainer action instituted by 
plaintiff against defendant to recover possession of an 
apartment in the 23 apartment building owned by plaintiff at 
4858 West Washington Street, Chicago, Illinois. The trial 
court made a finding in favor of defendant and entered judg- 
ment accordingly. Plaintiff appeals. 

Defendant occupies a 5-ropm apartment with his wife, 
two children, and his mo the r r in-law. In another part of the 
building plaintiff's son, Dr. Samuel Berger, lives in a 4- 
room apartment with his wife and two children. 

The principal question presented is whether plain- 
tiff seeks possession of defendant's apartment for the use 
and occupancy of her son, Dr. Berger, "in good faith" under 
the provisions of the Housing and Rent Act of 1947, Title 50 
U. S. C. A. Sec. 1899(a) as amended in 1948. 

Plaintiff testified that she wants possession of 
defendant's apartment for the use of her son, Dr. Berger, 
because he assists her in the management of the building, 
"banks" her money, "makes out all reports, " and for the further 
reason that defendant's apartment is "in the same hallway and 
has five rooms." 



-2- 

Plaintiff admits that she made an overcharge of 
rent for a period of three months; that afterward the Office 
of Price Administration directed plaintiff to refund the 

excess rent to defendant and imposed upon plaintiff a penalty 
in the sum of fifty dollars. 

Defendant testified that at the time he leased the 
apartment in controversy, April, 1946, he had a conference 
with plaintiff and her son Harry Berger who then occupied 
the apartment; that plaintiff told defendant he could obtain 
the apartment if he would buy her son's furniture; and that 
defendant bought plaintiff's son's furniture and paid there- 
for the sum of $1,175, and that the furniture was actually 
worth §300 or $350. 

Defendant further testified that after he purchased 

the furniture he asked plaintiff for a lease and that she 
told him "I would not have to worry as long as she owned the 
building"; that he was never repaid the amount of the rent 
overcharge by plaintiff, and that plaintiff asked him "to 
enclose a five-dollar bill with every $65 check I gave her." 

It is uncontroverted that Dr. Berger knew his 
brother Karry was going to vacate, the apartment here involved 
before it was leased to defendant. Plaintiff contends that 
the testimony of defendant with respect to the violation of 
the rent regulations and the sale of household furnishings 
of plaintiff's son is. inadmissible. We think plaintiff's 
position is untenable. These facts and circumstances were 
admissible for the purpose of showing plaintiff's motives in 
instituting the present action, and therefore were properly 



-3- 

considered by the court in determining the question of fact 
whether defendant was seeking possession. of the premises in 
good faith. ( Nofree v. Leonard , 327 111. App. 143.) 

The burden of proving good faith is upon the plain- 
tiff, ( garsanti y. Jacob sen , #44676 filed March 16, 1949, 
1st Dist, App. Ot.j Mikkelsen y. McDonald , 333 111. App. 518; 
Scharf v f Waters , 323 111. App. 525; Nofree v. Leonard , 327 
111. App. 143.) 

In our opinion the evidence is sufficient to support 
the court's findings. The trial court who heard and saw the 
witnesses was in a better position than this court to determine 
the credibility of. the witnesses and the weight to be accorded 
to their testimony. 

For the reasons assigned, the judgment is affirmed. 

JUDGMENT AFFIRMED. 
BURKS, P.J. AND KILEY, J. CONCUR. 



44698 

ANITA BTKBSON, 

Appellee, 

v. 

ADYEE DUNAWAY and 
SALLIE FRANKLIN, 

Appellants. 




3 37I.A. 6 

APPEAL FROM MUNICIPAL 
COURT OF CHICAGO. 




MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE 
COURT. 

Plaintiff brought separate forcible detainer pro- 
ceedings against the two defendants. By agreement of the 
parties the causes were consolidated for the purpose of 
trial. At the close of plaintiff's case the court instruct- 
ed the jury to return a verdict in favor of plaintiff, and 
motions for a new trial and in arrest of judgment having 
been overruled, the court entered judgment on the verdict. 
Defendants appeal. 

Defendants Were tenants in premises located at 3247- 
49 South Michigan avenue in Chicago v/hich were owned by 
plaintiff, who claimed possession for the purpose of in- 
stalling fire escapes on the outside of the building in order 
to comply with directives of the City of Chicago. It is her 
contention that these repairs could not be made with tenants 
in possession. One of the defenses interposed was that there 
was a lack of go^d faith on the part of plaintiff in insti- 
tuting these proceedings, since the installation of fire 
escapes could be made without dispossessing the tenants. 
At the close of plaintiff's case defendants offered to 
prove by two expert witnesses that the repair or installa- 
tion of fire escapes on the outside of the building could 



-2- 

be made while the tenants were in possession. However, the 
court overruled the offer, indicated that he had heard 
enough evidence, and directed the verdict. We think the 
prof f erf ed evidence was competent to establish one of the 
defenses interposed. We agree that fire prevention measures 
and ordinances should be fully complied with; but the court 
should have allowed the jury to pass upon the question of 
fact whether the eviction of defendants was necessary to 
carry out the repairs required. 

Plaintiff fails to discuss any of the grounds urged 
for reversal in defendants' brief, and merely confines her- 
self to the contention that defendants were negligent in 
four designated respects in making up the abstract of record. 
We find, however, that the abstract presented sufficiently 
sets forth the complaints of the consolidated actions, the 
verdict of the jury pursuant to the court's instruction, the 
rulings on the motions for a new trial and in arrest of judg- 
ment, 2QEE so much of the judgment as is necessary for the 
enlightenment of the reviewing court, and the notice of 
appeal. Whatever deficiencies may appear in the abstract 
are purely technical and are remedied by the filing of an 
additional abstract of record by plaintiff. In the recent 
case of People v. Grabs . 373 111. 423, the crurt refused to 
dismiss the appeal on technical grounds, saying that such 
action "would defeat the announced purpose of section 4 of 
the Civil Practice act which provides that the act shall be 
liberally construed to the end that controversies may be 



-3- 

speedily and finally determined, according to the substantive 
rights of the parties," and added that "ordinarily, the ap- 
pellee must supply an additional abstract if he deems ap- 
pellant's abstract insufficient. He cannot obtain the dis- 
missal of the appeal, except for flagrant disregard of the 
rule." To the same effect see McCarthy y. Meyer, 298 111. 
620, and Log emeyer v. Fulton S ta te Bank j 313 111, App. 27 0. 
There is no validity tc the contention of plaintiff that 
the appeal should be dismissed upon the grounds urged. 
For the reasons indicated the judgment of the 
Municipal Court is reversed and the cause remanded with 
directions that defendants be allowed to interpose such 
valid defenses as may be available to then, and that a 
trial be had on the merits. 

Judgment reversed and cause 
remanded with directions. 

Sullivan, P. J,, and Scanlan, J., concur. 



p* 



#***- 



STATE 07 I IS 

APPSLLA' IT 

THIRD DISTRICT 

May Term, A. Dt 1949* 




General No* Ptf'M- 



B. F. FjnrSRABEND, ) 

) 
Plaintiff -Appellee, ) 

) 

-V3- ) 

) 

) 

ay c. haitpa. ) 

Defendant-Appellant . 'i 



Agenda RO< 5, 



8 87I.A. 665 



Appeal from 

County Court of 
Jersey County. 



y. p.j. 



Plaintiff P. F. Feyerabend brought this action in 
distress for rant allowed to be due him from the defendant B irry 
9« "anna, for rental of a farm owned by Feyerabend. Defendant's 
answer allotted the rent had been paid. Defendant filed a counter- 
claim for |S0O« Plaintiff's answer thereto allotted that nothing 
was due on the counter-claim, and allotted as an affirmative defense 

that since the ino« ent of the suit plaintiff had bch enced 

an action in forcible entry and detainer in Justice Court against 
defendant, and that during the pendency of such last 3uit plaintiff 
and defendant had compromised and settled all of their recounts, 
an I that as a result thereof nothing wa3 due the defendant fr 
the plaintiff. I lant's renly denied such compromise or 
settlement. 

The sufficiency of the pleadings is not questioned. 

The case was tried on the merits before a Jury and the 
jury returned a verdict in favor of the plaintiff -counter-defendant, 



**Xfe 



-• 









a BS -; 1 

■ 



assessing "the plaintiff's damages at none and costs of this 
suit." Judgment was entered on such verdict in favor of plaintiff* 

Osfenlant-counter-claimant appeals. 

:o objocti" '-■- ruling of th« Lai court on 

th 3oion or rejection of evidence, and no objection i3 made 
to the divine; or refusal of any instruction. 

There waa evidence fairly tendinc to -rove that all of the 
claims of the plaintiff and of the defendant had been compromised 
and settled during the uendency of such forcible entry and detainer 
suit. 

I have carefully read the record and it is our opinion 
t '.to cannot properly 3ay that the verdict 1 inst the 
manifest weight of the evidence. 

Therefore the judgment appealed from is affirmed. 

Affirmed . 



k"' 



:: 



bstrad 



ATE OF ILLINOIS 
APPELLATE COURT 
THIRD DISTRICT 

Hay Term, A.D. 1949 



/ 



/- 



I 



No. 9650 



PEOPLE OF THL Of ILLINOIS, 

Plaintiff- 
Defendant in Error, 

ZADA RUSSELL, 

Dafondant-r 

Plaintiff in Error. 



Apnda So* 1 

3 37 1 A. 665 



) 

in Error, ) 




Writ of Error free 
the County Court of 
MeDonouch Coirty. 

. Cx 1 ' ' 1 1 ii '.3. ThKibar ^9g- 



PEOPLE OF 



O'Connor , J. 

By thia writ of ©rrar defendant, Zada Russell, socks to reverse 
a Judgment of the County Coturt of IScDonough County sentencing her to the 
Illinois State Refomatory for Uanen at Dvight, Illinois, upon the finding 
of tho oourt that she was guilty of the offense of keeping a house of ill- 
fane. 

The Information upon which Zada Ruasell uas tried contained 
throo separate counts • 



-1- 






- 






' 



>. 



N 



. 















* 






The first count charged the .:it with keeping a hatse of 

ill-fans, Tli© second count cliarged her with maintaining a place for the 
practice of prostitution and lewdness, and the third count charged the 
defendant with keeping a comon ill-governed and disorderly houss to the 
encouragesaont of idleness, gaming, drinking, fornication or other misbe- 
havior, all in violation of Section 162 of Chapter 3S of the Revised 
Statutes of the State of Illinois • 

The defendant orally waived a jury, the ea30 was tried "by the 
court, and the defendant found guilty and sentenced to a one-year tern 
at the Illinois State Reformatory for Woman at Dwight, Illinois. 

Defendant contends that the Information filed herein is vanue 
end insufficient and does not apprise the defendant sufficiently of the 
of ease charged against her, and that a subsequent acquittal would not 
bar a future prosecution. 

The Information is in the language of the statute, which is 
sufficient. It 3ots forth in particularity the date of the offense, the 
description and address of the house alleged to have been maintained by 
the defendant on the date in question, and any acquittal on the charges 
aa laid would most certainly bar any future prosecution for the same offense. 
In addition, upon the defendant's motion and an order of court, the People 
furnished e bill of particulars. 

The purpose of a bill of particulars is to provide more particular 
averments in order to onablo the defendant to understand the nature of the 
charges or to prepare his defense, ( Iteonle v, Sims. 393 111. 239,) The 
bill of particulars furnished in this case did fully and sufficiently apprise 






\ 



/ 



— 



the defendant of the charges against her, if the Information eoud in any 
way be called insufficient to do infom her. It is not necossay that the 
details of the acts relied upon as a violation be recited in th Information. 

Defendant also contends that the record does not show affirma- 
tively that she entered a separate plea to oach count of the ^formation 
and taat the finding of guilt should indicate as to which couai of the 
Information the defendant was found guilty. In su : ort of her contention 
she cites the case of Papule v. Friedman t 523 111. App. 14.9* ?he rule 
laid down in the case cited by the defendant doss not apply. In that case 
the defendants wore found guilty under the second count of an indictment, 
the same being a n&ademeanor count. The record failed to shev that the 
defendants entered any plea to that count am the court I-said "that there 
was no issue before the court and the judgment of conviction could not 

£. tt In the present case the record shows that the defendant was ar- 
raigned and entered a pica of "not guilty 9 . Such a plea is a ploa of not 
guilty to ohe Information as a whole, and the record shows that the trial 
proceeded on the issue made up by that plea. 

The Information filed herein charges one offense in three alter- fs^ 
natives - one alternative in each of the three counts. It line long 1x>on 
the approved practice to charge, by several counts, the sane offense as 
ccKtuitted in different ways or by different means, to such an extent aa 
will be necessary to provide for every possible contingency in the evidence. 



-3- 



A general plea of not guilty puis in Itutm the question of the dfendaaVs 
guilt to the one off ansa in either or all of tho alternatives, ffld a find- 
ing of "guilty of keeping a house of ill-'ame as charged in the Information 
herein 8 is entirely proper and it is not necessary that the record show as 
to which count of the Inf ornation defendant was found guilty. In the case 
of People v. Bailey . 391 111, 14-9, the court at page 154 said* 
"The logical effect and meaning of a general verdict finding tae defendant 
'guilty in manner and foxc. as gad in the indictnsat * are that ho is 
guilty in maimer and form as charged in oach count of the indictnent." 

The three counts in the Information in this case are not incon- 
sistent with each other. The defendant was not injuriously affected by 
tho fact that tho court did not indicate as to which count of the Informa- 
tion the defendant was found guilty. (PoqpIq v, Diekelaaan r 367 HI. 372.) 

In the instant case it makes no difference whether the defendant 
is convicted on ono, two or aH throe of the counts in tho Information, 
the punishment is the sane. 

The defendant further agrees that the proof does not show the 
ccnrda3ion of any offense In HcDonough County. There appears to be suffi- 
cient proof that tho offense was : od in McDonough County. The witness 
Ernest MoCall i- -itified that he lived at 314 We3t Calhoun Street in r>acomb 
in IScDonough County, and tliat the defendant lived at 332 West Calhoun Street 
during June and July of 1943j that said house occupied by the defendant was 
four house o WWt of his house on the seme side of the street. This proof 
is amply sufficient to establish tho venue. In addition to this proof all 
of the witnessos testified that the house in question was located at 332 
West Calhoun Street in the City of Macomb, Illinois. Tie court will tak* 



^ 



-4- 



Judicial notice that a particular city, village or town is in a certain 
county. It is sufficient if tit.- cvida&M as a whole, loaves no reason- 
able doubt that the act upon w-dch ihe charge is based was conrvbted at 
the> place laid in the information. (Raonle v. Golub. 333 HI, 554.) 

The defendant further contends tJiat the material allegations 
of the complaint were not proved and that the court permitted aaproper 
introduction of evidence. We cannot subscribe to this contention. Defen- 
dant herself testified that on July 11, 1 943 she was renting Has promises 
located at 332 lA<za$ Calhoun Street. Four witnesses testified that on 
July 11, 194S, they went to the house located at 332 West Galloun Street; 
there they saw the defendant, haUccd with her, and each one o: them had 
intercourse with one Elisabeth Keel, for uhich they each paid the defendant, 
Zada Russell, the svss. of three dollars. Qae other witness, George Neborgsll, 
testified of his presence in the house at the tine, and that the otter four 

lOMMflH did pay Zada Hue sell three dollars each and went up stairs with 
Elisabeth Kaol. He did not go upstairs at any tine. Elizabeth Keel was 
called as a court *s witness, and testified she was s visitor at the home of 
the defendant Zada Russell, at 332 West Calhoun Streot, frcs Juno 25, 1943 
until July 14th of the MM year. 

Certainly that evidence, although the acts ;joro denied by the 
defendant on the witness stand, is conclusive that the two story frajae 
house located at 332 Calhoun Street in ;iacaab, Illinois, was a house of 
ill-fane on July 11, 194S, according to the accepted meaning of the phrase. 
It is also conclusive that the said house was kept by the defendant, Zada 
Russell. 



-2" 



We nasi assuae that tho fcriLal :*• nsidored only properly 

adrdttod evidence on tho part of the People, and the record d5.3close3 
that there was no evidence produced on tho part of the defendant that 
was refused. The judge heard and saw the -/Hnooaee and had advantages 
which this court does not have in ^.tdging the weight x->hich should bo given 
the testimony. 

Considering all the Ehffci and chrcuostances revealed by the 
record is this case ve are fepro-fied, as was tho trial court, that the 
guilt of "endant Zada Russell was proven beyond a reasonable doubt. 

We are of the opinion that the record contains no reversible 
error and the fvAgntaA of the County Snarl of McDonough County is there- 
fore affirmed. 

Affirmed. 



\ 



V