text:
    Knights of Pythias N. A. S. A. E. A. A. & A., Grand Jurisdiction of Illinois, Appellant, v. Annie Davis, Appellee.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Annie Davis, plaintiff, against Knights of Pythias N. A. S. A. E. A. A. & A., Grand Jurisdiction of Illinois, defendant, to recover as beneficiary on a mutual benefit certificate on the life of her husband, Joseph Davis. From a judgment for plaintiff for three hundred dollars, the full amount recoverable under the policy, defendant appeals.
    Abstract of the Decision.
    Insurance, § 794

      —when acceptance of payment of arrearages does not constitute togiver of right to limit amount of benefits according to fby-laws. Where the by-laws of a fraternal beneficial association permitted a member who had become nonbeneficial to be reinstated before suspension, by his local lodge by paying all arrearages, and provided also that if such reinstatement was after thirty days from default the amount of benefits to be paid under hik certificate should be changed to a specified less amount, if death occurred within five years, held that such association did not by accepting such payment of arrearages waive its right to limit the amount of benefits according to its by-laws.
    R A. J. Shaw, for appellant; Albert B. George, of counsel.
    Silas Cook and W. B. Hill, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number.

   Mr. Justice McBride

delivered the opinion of- the court.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    George H. Pritchett, Appellant, v. George Griffin, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Replevin, § 124

      —when evidence is sufficient to show that title to chattels had not passed. Where plaintiff representing the agent of the owner of certain land contracted, subject to said owner’s approval, to exchange said land for defendant’s chattels, for which plaintiff took a bill of sale in the name of the agent and transmitted same to said agent with his own notes to the agent a-s in payment for said chattels on his own account, and before the owner of the land approved the contract defendant repudiated the same upon learning of the falsity of statements made by said agent, and guaranteed by plaintiff as true, as to the character of the lands, upon which defendant had relied in making the contract, held in an action of replevin for said chattels, plaintiff claiming tp have effected a purchase thereof through defendant, that the jury were fully warranted in finding that title to said chattels had not passed from defendant.
    Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action of replevin by George H. Pritchett, plaintiff, against George Griffin, defendant, to recover a stock of groceries. From a judgment for defendant, plaintiff appeals.
    Pillow & Stone, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

2. Saxes, § 218 —when agent is not innocent purchaser for value. An agent who procures a contract for the exchange of his principal's land for certain chattels which is subject to said principal’s approval, and who assumes to purchase said chattels prior to approval of the contract by his principal, is not an innocent purchaser for value, so as to prevent the owner of said chattels from repudiating the contract before its approval by the agent’s principal, and no obligation rests upon such owner as to purchase money notes given by such agent on such purchase.

3. Vendor and purchaser, § 40 —when knowledge of vendor’s agent as to falsity if representations as to character of land is immaterial. Where representations made by an agent in selling land as to the character of the land were false and were relied upon by the purchaser of the land, it is immaterial to such purchaser’s right of redress whether the agent knew of such falsity.


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    Granite City Lime & Cement Company, Appellee, v. Board of Education of School District No. 126, etc., J. R. Beale, H. S. Mettlen and Ellis Mettlen, partners, trading as H. S. Mettlen & Company. J. R. Beale, Appellant.
    1. Frauds, Statute oe, § 17

      —when undertaking of contractor to pay material man is original. Where a contractor before delivery of materials for a school building promises the material man to pay for them, and upon such promise they are delivered to the subcontractor ordering the same, such undertaking of the contractor is original and not within the Statute of Frauds (J. & A. If 5867).
    2. Mechanics’ mens, § 79

      —who protected under lien statute as to public improvements. The lien statute as to public improvements (J. & A. ji 7161) does not require that the materials should be furnished on the contract of the principal, but applies to any person who may furnish material or labor to any contractor for any public improvement.
    3. Mechanics’ liens, § 79

      —when contractor is liable to material man on contract to pay for materials furnished to subcontractor. Where a contractor promises a material man furnishing materials to a subcontractor for a school building to pay for the same, he is not to be deprived of a lien by the mere fact that the material man recognizes the subcontractor and charges the goods to him.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    T. T. Hinds, for appellant.
    Terry, G-ueltig & Powell, for appellee.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number*

   Mr. Justice McBride

delivered the opinion of the court.

A decree was rendered in favor of the complainant against the defendants in the Circuit Court of Madison county, to reverse which the defendant J. R. Beale prosecutes this appeal.

It appears from the record in this case that on May 2, 1913, J. R. Beale entered into a contract with the Board of Education of School District No. 126 Union, Township 3, Ranges 9 and 10, for the erection and completion of a high school building. That thereafter J. R. Beale entered into a subcontract with the defendants H. S. Mettlen & Company to furnish the building material and do the brickwork upon said building for an expressed consideration of $10,500, to be paid for as the work progressed, and payments were to be based upon the estimates of the architect and be made to the amount of eighty-five per cent, of such estimates. At the time that Mettlen & Company were endeavoring to secure this subcontract, they obtained prices of building material from the appellee upon which prices it appears that their bid was partly based. After Mettlen & Company had been awarded the subcontract for doing the brickwork, they then placed an order with the appellees for the necessary brick and other building materials, and in this order was included the prices theretofore quoted by appellees to them. At the time of the making of the contract between Beale and Mettlen & Company, it was agreed that Mettlen & Company should give to Beale a bond, the exact nature and condition of this bond does not appear from the evidence, but Mettlen & Company were unable to give the bond and were unable to prosecute the work upon the payment of eighty-five per cent, of the estimated prices; that they would require more money than that per cent, would bring to them. Thereupon an arrangement was made between Beale and Mettlen & Company that Beale was to take care of all bills for material furnished and put in the building and would give a check upon Saturday for the amount of labor performed during that week. Beale denies that he undertook absolutely to pay all bills, but says that he had an understanding with Mettlen that he would pay the men for their labor and would pay for materials upon orders from Mettlen & Company out of what was due them. As the building progressed, payments were made by Beale to the men for their labor and sums were paid upon the building material furnished from time to time, upon the order of Mettlen & Company. When the building was completed there was a balance due appellee of $1,212.05 for materials furnished and used in the erection of this building. It also appears from the testimony of appellees’ witnesses that after Mettlen & Company had placed their order with appellees and before any of the building máterial had been delivered, that the appellees learned that Mettlen & Company had failed to give a bond, as they had agreed to do, and thereupon Mettlen & Company called' upon Beale, and, as appellees claim, asked him what protection he would have if they would quit before the building was completed, or the material men would refuse to deliver the material, and he said he would see that the material used was paid for and that he was taking no chances. This is denied by Beale. It further appears that the McEwing & Thomas Clay Products Company furnished building material upon the promise of J. B. Beale to pay for them and that he did from time to time make payments by check upon orders given by Mettlen & Company, and that there is a balance due this corporation of $225.79. Beale denies he made any such an agreement with the McEwing & Thomas Clay Products Company as contended for.

The bill alleges J. B. Beale entered into a contract with the board of education to erect said high school building and that he authorized and employed H. S. Mettlen & Company to do the brickwork and to order the material, and made payments thereon from time to time at the request of Mettlen & Company but that there was a balance due appellees of $1,212.05, which remains unpaid. The bill also alleges that notices were given as required by the statute for the enforcement of liens.

It is contended by counsel for appellant that the appellee was a subcontractor and as such no right of lien existed in its favor under the statute, and maintains that appellee did not furnish materials to the contractor within the meaning of the statute, and that they could have no lien. The statute referred to (J. & A. fí 7161) is as follows: “Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor for a public improvement in this State shall have a lien on the money, bonds or warrants due or to become due such contractor for such improvement: Provided, such person shall, before payment or delivery thereof is made to such contractor, notify the officials of the State, county, township, city or municipality, whose duty it is to pay such contractor of his claim by a written notice.”

The cause was referred to the master to take testimony and report conclusions, which was done, and the master recommended that a decree be entered in favor of the appellee and the McEwing & Thomas Clay Products Company for the amounts due them respectively. Exceptions were taken to this report and argued before the court, but the report was sustained and a decree rendered accordingly. It also appears from the evidence that the amount of $1,212.05 remains unpaid and in the hands of the board of education.

The claim of appellee is based upon the fact that before he furnished the materials to Mettlen & Company that Beale agreed with them that he would pay for the materials furnished. This is denied by Beale, but it is testified to by the witnesses A. W. Eir mmeyer, Jr. and A. W. Eisenmeyer, Sr., Louis Buenger and E. C. Mettlen. It appears to us that the chancellor was warranted in finding that Beale did agree before the material was delivered to pay for it and that the material was thereafter furnished and used in the building upon the strength of the promises of Beale. It is insisted by counsel for appellant that even if Beale did promise to pay for the building materials furnished and placed in the building that such promise was within the Statute of Frauds and could not under any consideration be construed as an obligation of Beale’s. If before the delivery of the materials the appellant promised the appellee to pay for such materials, and upon the strength of this promise the materials were delivered to Mettlen & Company, then the undertaking of the appellant was original and appellant was liable upon such original promise. Lusk v. Throop, 189 Ill. 127. “But, where the defendant promises the plaintiff to pay fór goods, which the plaintiff may thereafter deliver to a third person, and which, at the time of the promise, have not been delivered, no debt exists from such third person to the plaintiff, and, hence, the promise of the defendant to pay is an original undertaking, and not merely a promise to pay the debt of another.” Lusk v. Throop, supra. In a determination of a question similar to this one, the Supreme Court has said: “It is next claimed that the court erred in giving instructions for plaintiff. The first instruction merely directed the jury, if they believed-from the evidence that plaintiff and defendant entered into an agreement under which plaintiff agreed to furnish lumber on the order of D. A. Tomb, to be used in erecting a building for the defendant, and defendant agreed with plaintiff to pay him for the lumber, and that in pursuance of such agreement plaintiff furnished lumber, then plaintiff would be entitled to recover. It is said this is erroneous, in view of the order introduced in evidence. We do not so regard the instruction. The instruction announced a simple and plain proposition of law, and it was authorized by the evidence.” Hartshorn v. Byrne, 147 Ill. 418. If the appellant made the promise testified to by the witnesses for appellee which we think the court was justified in finding he did, then the promise of appellant to pay for the materials was not a collateral one but an original one and the Statute of Frauds would have no application. It is said by counsel for appellant that even conceding that the promise was made by appellant, as claimed by appellee, that this would not create a lien in favor of the appellee but would only make the appellant liable in an action of assumpsit, and calls attention to the fact that many of the authorities referred to by counsel for appellee are actions of assumpsit and can have no bearing in this case. It appears to us that the appellant was interested in having the building completed according to his terms of the contract with the board of education and that when Mettlen & Company were unable to proceed with their contract for the reason that they could not make the payments required upon eighty-five per cent, of the estimates, and were unable to give bond, and appellant at that point agreed to pay for the materials furnished, that it was to say the least of it, an implied request upon his part to furnish such materials as might be ordered by Mettlen & Company, and were needed in the carrying out of his contract!' The section of the statute referred to does not require that the material shall be furnished upon the contract of the principal but applies to any person who may furnish material or labor to any contractor for any public improvement, and it seems to us that if we should say that before a person furnishing material should have an agreement with the contractor, that it would be a narrow construction of this statute. While it has been said by the Supreme Court that this statute in derogation of the common law and should be strictly construed, yet we do not believe that such a construction should be adopted as to deprive one of a remedy for the materials furnished and used in the erection of the building, if the proper notices have been given, as the statute itself by section 53 (J. & A. ft 7177) provides: “This act is and shall be liberally construed as a remedial act.” The object and purpose of the lien law is to protect those who in good faith furnish materials for the construction of buildings, and such persons ought not by a strict1 construction to be deprived of this remedy. It does appear from the evidence in this case that after the contract was made between Beale and Mettlen & Company and after Beale had promised that he would' pay for the materials furnished, that Mettlen & Company did give orders to appellees upon which they received payment, and that when appellees gave their first notice they referred to Mettlen & Company as subcontractors and did other things by which they recognized Mettlen & Company as subcontractors, but if they had a contract with appellant that he was to pay for the materials furnished, the mere fact of their having recognized Mettlen & Company as subcontractors afterwards and that the goods were charged to Mettlen & Company upon the books of appellee would not necessarily deprive them of their rights under the promise of Beale to pay for the materials. Lusk v. Throop, supra.

There was the same conflict of evidence with reference to the promise of Beale to pay for material furnished in the claim of McEwing & Thomas Clay Products Company, but the court arrived at the same conclusion with reference to his promise in this claim as in the other, and we can see no reason for disturbing the finding of the court in this matter.

After a careful consideration of all of the evidence, facts and circumstances in this case, we are of the opinion that the Circuit Court was warranted in finding that under the agreement and conduct of the appellant that there was an implied request upon his part to furnish the building material that was furnished and used in the construction of the building, and that the appellee and the said McEwing & Thomas-Clay Products Company are entitled to their lien under this statute, and the decree of the lower court is affirmed.

Decree affirmed.


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    John D. Halladay, Appellee, v. Murphysboro Supply Company et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquors—when cross-examination proper in action for damages under Dramshop Act. In an action for damages under the Dramshop Act, sec. 9 (J. & A. f 4609), a question on cross-examination whether the witness would say positively he did not sell intoxicating liquors or lager beer to a minor on a certain night, testimony in chief having been given that the instructions from the proprietor of the saloon were not to sell to minors, held proper if for no other purpose than to ascertain whether such instructions were given and were being carried out in good faith.

      Appeal from the Circuit Court of Jackson county; the Hon. DeWitt T. Hartwell, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action under the Dramshop Act, sec. 9 (J. & A. IT 4609), by John D. Halladay, plaintiff, against Murphysboro Supply Company, Rudolph Stecher Brewing Company, Thomas John and Daisy Mitchell, defendants, to recover for the death of plaintiff’s son due to his falling from the top of a railroad car which he had hoarded while in an intoxicated condition from liquor obtained of defendants. From a judgment for plaintiff for $1,500, defendants appeal.
    W. H. Nelms, F. P. Drennan and W. F. Ellis, for appellants.
    Schwartz & Hats and Martin & Glenn, for appellee; Harold F. Lindlet, of counsel.

      See niinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

2. Witnesses, § 253 —when -weight of is for jury. The fact that a witness’ testimony may not be of much weight because of remoteness does not destroy its competency, and its weight is for the jury.

3. Intoxicating liquors, § 249 —when instruction in language of statute in action for death of minor is not erroneous. Giving an instruction in the language of the statute, section 9 of the Dramshop Act (J. & A. f 4609), in an action for the death of a minor due to intoxication and not directing a verdict, is not improper.

4. Intoxicating liquors, § 250 —when instruction authorising allowance of exemplary damages in action for death of minor is not erroneous. Where in an action for death under the Dramshop Act, see. 9 (J. & A. If 4609), the evidence warranted a finding that plaintiff sustained actual damages and that liquor was sold to the deceased, a minor, in violation of statute, held that the defendant could not complain even if an instruction was broad enough to include exemplary damages.

5. Intoxicating liquors, § 233 —what damages are recoverabte in action for death of minor due to intoxication. The right of recovery under the Dramshop Act, sec. 9 (J. & A. If 4609), for the death of a minor is not limited to the value of the deceased’s wages, but if he contributed to the parent’s support, and if plaintiff is injured in his means of support by reason of the unlawful sale of liquor and consequent intoxication, he may recover whatever loss the jury determines he has sustained.

6. Intoxicating liquors, § 187 —when right of action exists in favor of persons sustaining loss due to intoxication. If a person by reason of intoxication is rendered reckless and careless of his own safety and unfit to care for himself, and is injured as a result of such intoxication, a right of action exists in the person who sustained loss from such injury.

7. Negligence, § 196 —when proximate cause is question for jury. Where there is evidence tending to show any particular thing could be the proximate cause of an injury, the jury are the judges of what constitutes such proximate cause.

8. Intoxicating liquors, § 245 —when verdict for damages for death of minor is not excessive. Where the evidence tended to show that the deceased was a good worker, capable of earning $2 a day, contributed much of his wages to the support of the father and the family dependent upon him, was seventeen years and six months old and of industrious habits, held a verdict for $1,500 damages for his death was not excessive.

9. Intoxicating liquors, § 247 —when proximate cause of death-of intoxicated minor is question for jury. Where a minor, while in an intoxicated condition, climbed on top of a railroad car and lost his balance while walking on the top thereof and fell between the cars and was killed, held that it was a question for the jury whether such intoxication was the proximate cause of his death.


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    Joseph Bier, Appellee, v. Abe Weiler, Jacob Keiner, Mary L. Hoppe and Washington West, Appellants, interpleaded with Warren E. Fleming, Cornelia E. Fleming, Homer Greer, Inez Greer, Nicholas Haffner, Henry J. Fink, Trustee, and C. P. Otwell Defendants to decree in this case.
    1. Mortgages, § 269

      -—when mortgagee selling notes secured by mortgage may discharge mortgage as to subsequent bona fide purchasers. The holder of notes and mortgage securing the same who sells and assigns the notes but retains the mortgage, in which he is named as mortgagee or trustee, has the lawful right to discharge such mortgage as to subsequent ’ bona fide purchasers, notwithstanding such notes have not been paid.
    2. Mortgages, § 278

      —when presumed that release deed has been delivered. The recording of a release made by persons appointed in a mortgage or trust deed to execute the release carries with it as to subsequent bona fide purchasers the legal inference that the release deed has been delivered.
    3. Mortgages, § 269

      —when release of is binding. As between the parties or as to third persons having notice of the equities of others, a release of a mortgage made without the notes secured by such mortgage having been paid and in fraud of the holders of such notes would not be binding, but subsequent purchasers or incumbrancers without notice who have acquired their interest in good faith would be protected by such release by the trustee.
    4. Notice, § 3

      —when sufficient to charge person with knowledge. To constitute notice sufficient to charge a person with knowledge there must be something more than bare suspicion; it must appear that such facts were suggested as would cause a prudent mind to investigate, and to fail to do so would be gross negligence on his part, and that such negligence would he of a character that would imply a fraudulent intent.
    5. Mortgages, § 277

      —what is effect of release of record. In the absence of any notice or ground of suspicion, it is not the duty of a purchaser to obtain an admission of payment from the holder of a note secured by trust deed regularly released of record.
    6. Mortgages, § 119

      —when purchasers of notes secured hy new mortgage have priority under new mortgage over holders of notes under old mortgage. Where the purchaser of land assumed a mortgage thereon then of record given to secure certain notes, on the maturity of which such mortgage was released of record by the person authorized therein to release same and a new mortgage to secure new notes was given and duly recorded, and said new notes sold to parties who, as well as said purchaser of the land, were ignorant of the fact that the notes secured by the old mortgage had not been paid, and no suspicious or other circumstances existed tending to put the purchasers of such new notes upon notice of such fact, held that such purchasers of such new notes were bona fide purchasers and entitled to priority under such new mortgage over the holders of the notes under the old mortgage.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    O. H. Gr. Heinfelden and P. O. Otwell, for appellants.
    Winkelmann & Ogle, for appellee.
    Schaefer & Kruger, for Nicholas Haffner.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a decree in the Circuit Court of St. Clair county, to reverse which the appellants prosecute this appeal.

It appears from the record in this case that Warren B. Fleming was the owner of Lot No. 19, and the southeast half of Lot 20, in Abend’s First Addition to the City of Belleville, St. Clair county, Illinois, and that on the 7th day of July, 1910, he secured a loan of $3,000 from Henry J. Fink, a loan broker of Belleville, and that to represent said loan he executed six promissory notes of $500 each, payable to Henry J. Fink, trustee, or order, and due three years after date with interest coupons attached, and numbered from 1 to 6 inclusive. To secure the said notes the said Warren B. Fleming and his wife, Cornelia B. Fleming, executed to Henry J. Fink, trustee, a mortgage upon the above-described property. Fink sold and assigned the six notes as follows: No. 1, to Adolph A. Eggersman; No. 2, to Jacob H. Keiner; Nos. 3, 4 and 5, to Joseph Bier; and No. 6, to Nicholas Haffner, and the said notes were delivered to the respective purchasers and retained by them but the mortgage was left in the possession of Henry J. Fink. On November 25, 191Ó, Homer Greer purchased the above-described property from Fleming paying- him $500 in cash and assuming the Fleming mortgage for $3,000 and from that date Greer continued to pay the interest as it became due to Henry J. Fink and received from Fink the interest coupons attached to the respective notes. The notes secured by the Fleming mortgage became due on July 7, 1913, and on that day, or a day or two previous thereto, Homer Greer told Fink that he could not pay the loan and wanted him to renew the loan, which Fink agreed to do, and on July 10, 1913, Fink and Greer went to the recorder’s office in the courthouse at Belle-ville and there upon the margin of the recorded mortgage from Fleming to Fink, trustee, Fink, trustee satisfied the mortgage in full, in the presence of the deputy recorder. This original mortgage was marked “Satisfied in full on July 10, 1913, C. A. Summers, Beeorder,” and was delivered by Fink to Greer. Thereupon Greer delivered to Fink six notes in the sum of $500 -each, payable to the order of Henry J. Fink, trustee, and signed by Homer Greer and Inez Greer, and also a mortgage duly executed by Homer Greer and wife and payable to Henry J. Fink, trustee. About a week after the maturity of the Fleming notes, Keiner, who was the owner of No. 2 note, presented it at Fink’s office for payment. Fink advised Keiner that Greer had bought the property and had made a new mortgage for $3,000 and that he would let Keiner have note No. 2 of the Greer series in exchange for the Fleming note owned by Keiner. The exchange was made. A little later Fink paid Eggersman the $500 due him and took up note No. 1, of . the Fleming series. On about July 15, 1913, Fink sold, assigned and delivered note No. 1 and No. 3 of the Greer series to Mary L. Hoppe for $1,000 in cash, and during the first week in August he sold, assigned and delivered notes Nos. 4 and 5 of the Greer series to Washington West for $1,000 in cash, and on August 13th he sold and assigned note No. 6 of the Greer series to Abe Weiler for $500 in cash. The said notes of the Greer series were delivered to the respective purchasers and have been in their possession from that time. It appears that the purchasers of the Fleming series and also of the Greer series had confidence in Fink’s ability and integrity and gave no particular attention to the records but relied upon Fink for their information. It further appears that appellee Bier called upon Fink at two or three different times for his money and advised Fink that he wanted to be present when the money was paid, and Fink agreed to advise him when he would be ready to pay the money so that he could be present but Fink never advised him that the money was about to be paid, and on about the 25th of August, 1913, Fink absconded and left Belleville but his absence was not generally known until about the 4th of September. Haffner, who held one of the Fleming notes, called at Fink’s office to collect,the same and was told to come around in a few days and he would fix the matter up, but no payment was made to him. It further appears that the property in question is not of sufficient value to secure the payment of all of the unpaid notes above described, and that some of the purchasers of the notes will have to suffer a loss in consequence thereof. On the 2nd of January, 1914, the appellee filed a bill for a foreclosure of the Fleming mortgage and the setting aside of the satisfaction thereof made by Fink as trustee upon the records.

The bill filed by appellee was in the usual form of bills for foreclosure of mortgages and alleged that tic three notes owned by Bier of the Fleming series had not been paid and that the release of the mortgage made by Fink was fraudulent, without authority of law and void as to appellee and others holding the unpaid Fleming notes, and asked that the release of the mortgage made by Fink be set aside and that Bier be decreed to have a prior lien upon the property in controversy. The bill also alleged that at the maturity of the Fleming notes Greer executed and delivered to Fink six other notes of $500 each, and charges that they were delivered to Fink and that Fink was directed to indorse his name on each of said notes and distribute them among the respective owners of the Fleming notes, according to their several holdings. To this bill the appellee made Fleming, Greer and the purchasers of both series of notes parties. The several parties defendant answered the said bill, admitting the execution of the mortgages but denied that they had any knowledge that the Fleming notes had not been paid at the time of the purchase by them of the Greer notes, and alleged that the Greer notes were purchased by them after the Fleming mortgage had been satisfied of record. Each of the answers also deny any knowledge of fraudulent acts of the said Fink in the releasing of the Fleming mortgage, and deny that they had any notice of the fact that the mortgage was released without authority or that the Fleming notes had not heen paid.

The case was referred to the master to take testimony and to report conclusions, and thereafter the cause was heard before the chancellor upon exceptions, and a decree rendered finding that the appellee’s lien and those of the unpaid Fleming notes were a prior lien to that of the appellants holding the Greer series of notes and directing a sale of the property.

The real question in controversy in this case is as to which series of notes the holders thereof have priority of lien. Many questions have been argued and citations presented as to what we regard as collateral matters herein which will not be commented upon except so far as they are connected with the principal questions involved. As we read this record there are two controlling questions, the determination of which will settle the rights of the parties to this suit. The first question is, Did Fink as trustee have a legal right to satisfy the mortgage that was given to secure the Fleming series of notes without the notes having first been paid? 2nd, Did the purchasers of the Greer series of notes have notice actual or constructive of the fraud practiced by Fink in the release of the Fleming mortgage or of the fact that the Fleming notes had not been paid? The first proposition has, as we think, been fully determined by the courts of this State. There was no assignment of the Fleming mortgage by Fink to any of the purchasers and Fink was named as the mortgagee or trustee therein and had the lawful right to discharge the Fleming mortgage, as to subsequent bona fide purchasers. The recording of a release made by persons appointed in a mortgage or trust deed to execute the release carries with it as to subsequent bona fide purchasers the legal inference that the released deed has been delivered. Havighorst v. Bowen, 214 Ill. 90. “Whether the release was in fact delivered to Bowen would seem to be not controlling as between the parties. It was made by the person pointed out in the trust deed to make it. It was placed of record, and under our recording act the fact that it was of record carried with it, as to appellees and innocent third parties, the legal inference that it was delivered. There is quite as much delivery of this deed as there could be of an entry of satisfaction "on the margin of the record, and, as we have said, one is given the same legal effect as the other.” Havighorst v. Bowen, supra.

“The law is well settled in this State that the trustee in a trust deed of the character of' the one in question has the power, as to third parties, to release the lien created thereby so as to revest the title in the grantor, even though he does so without the consent of the holder of the indebtedness which the trust deed was given to secure and in violation of the obligations of his trust (Mann v. Jummel, 183 Ill. 523); and such release may be made even though the indebtedness secured by the trust deed is not due at the time the release is executed. (Ogle v. Turpin, 102 Ill. 148.) In equity, however, a release unauthorized by the terms of the trust deed or by the consent of the cestui que trust will have no effect upon the trust deed as between the original parties or as to subsequent purchasers with notice.” Vogel v. Troy, 232 Ill. 484. While it is true that as between the parties, or as to third persons having notice of the equities of others, a release made without the notes that were secured by said mortgage having been paid and in fraud of the holders of such notes would not be binding, yet as to subsequent purchasers or incumbrancers without notice who have acquired interest in good faith, a release of a previous mortgage by the trustee would protect such bona fide purchasers and incumbrancers.

This brings us to a discussion of the second proposition as to whether or not the appellants were purchasers without notice, actual or constructive, of the rights of the holders of the Fleming notes. There is no evidence in this record that the appellants, purchasers of the Greer notes, had any actual notice that the Fleming notes had not been paid and that the mortgage was released without the consent or direction of the owners of the notes, but it is insisted that there were such facts and circumstances surrounding the transaction as to put appellants upon notice. In order to constitute notice there must be something more than a bare suspicion ; it must appear that such facts were suggested as would cause a prudent mind to investigate, and to fail to do so would be gross negligence upon his part, and that such neglect would be of a character that would imply a fraudulent intent. “If, in short, there is not actual notice that the property is in some way affected, and no fraudulent turning away from a knowledg'e of facts which the res gestee would sugg'est to a prudent mind; if mere want of caution, as distinguished from fraudulent and wilful blindness, is all that can be imputed to the purchaser, then the doctrine of constructive notice will not apply; then the purchaser will, in equity, be considered, as in fact he is, a bona fide purchaser without notice.” Grundies v. Reid, 107 Ill. 312. “Enough must be shown to impute to the subsequent purchaser bad faith, so as to taint his purchase with fraud, in law. (Doyle v. Teas, 4 Scam. [5 Ill.] 202.) Mere want of caution, as distinguished from fraudulent and wilful blindness, is not sufficient to charge a subsequent purchaser with constructive notice of an unrecorded deed.” Anthony v. Wheeler, 130 Ill. 128. The Supreme Court of the United States, in the case of Williams v. Jackson, 107 U. S. 478, says: “It was suggested in argument that as the first deed of trust showed that the notes secured thereby were negotiable and were not yet payable, and that the land was not intended to be released from this trust deed until all the notes were paid, Williams was negligent in not making further inquiry into the fact whether they were still unpaid. But of whom should he have made inquiry? The trustees under the first deed and the original holder of the notes secured thereby, having expressly asserted under their own hands and seals that the notes had been paid, and Sweet and wife having apparently concurred in the assertion by accepting the deed of release and putting it on record, he certainly was not bound to inquire of any of them as to the truth of that fact; and there was no other person to whom he could apply for information, for he did not know that the notes had ever been negotiated, and had no reason to suppose that they had not been canceled and destroyed. To charge Williams with constructive notice of the fact that the notes had not been paid, in the absence of any proof of knowledge, fraud or gross or wilful negligence, on his part, would be inconsistent with the purpose of the registry laws, 'with the settled principles of equity, and with the convenient transaction of business.”

The language in the above-entitled cause, of Williams v. Jackson, is quoted approvingly by our Supreme Court in the case of Havighorst v. Bowen, supra. The recording laws are designed to afford protection to parties acting in good faith and relying upon them, and in the absence of any notice or ground of suspicion it is not the duty of a purchaser to obtain an admission of payment from the holder of a note secured by trust deed regularly released of record. Lennartz v. Quilty, 191 Ill. 174. It is said in the case of Ogle v. Turpin, 102 Ill. 153: “The assignment of the notes operated as an equitable assignment of the mortgage, and the assignment was an instrument that related to or affected the title to land, and to become operative as to creditors and purchasers the assignment of the mortgage should have been formally made and recorded, to charge notice to all persons dealing with the title, or at least the assignment on the note should have referred to the mortgage, and that assignment should have been recorded. As between the parties, the mere assignment, without recording, was all that was required to assign the mortgage, but as to strangers it was otherwise.” • In that same case Justice Dickey, in rendering a concurring opinion, says: “When a man buys notes secured by mortgage he becomes thereby the equitable assignee of the mortgage, and acquires an equitable interest in the mortgaged lands. If he wishes to protect that interest against subsequent purchasers, he may do so by taking a written assignment of the mortgage, and placing that assignment upon record. Possibly a record of the assignment of the note would be sufficient.”

The evidence in this case discloses that at the time Greer renewed the note with Fink he supposed that Fink was the owner of the notes. He says: “I gave these (referring to the Greer notes) to Fink for the purpose of taking care of the three thousand dollars that the mortgage already stood for. I never knew that the notes had been transferred to anybody. I really thought the money was being furnished by Mr. Fink. The coupons were always ready for me when I paid the interest. * * * I supposed it was Fink’s money and that he had the notes. I supposed the money was coming directly from Fink.” So far as the record and circumstances disclose, these Greer notes came to Fink in a regular way of a renewal of the loan. The Greer notes and mortgage were given to Fink in apparently the usual manner of renewing or making a loan. The notes were made payable to him and he was named as mortgagee or trustee in the mortgage.

It is said by counsel for appellee: ‘ ‘ That when Fink came to Dr. West and Mrs. Hoppe and offered to sell to them the Greer notes, as alleged in the bill, they knew: (a) That the Greer notes had not been substituted for the Fleming notes, because they were still in Fink’s hands; (b) that the Greer notes had not been sold for money with which to pay the Fleming notes, as in such case they would not have been in Fink’s hands; (c) that Fink was then insolvent and would not have paid the Fleming notes, for his insolvency from July 10, 1910, hitherto, is alleged in the bill and not denied by them, hence confessed and requires no further proof.” We do not regard these suggestions as of sufficient importance to impute to appellants bad faith in the purchase of the Greer notes. As to the first suggestion, there is nothing in the record showing that appellants knew that the Greer notes were to be substituted for the Fleming notes. As to the second suggestion, there is nothing showing that the notes were to be sold to procure money to take up the Fleming notes, and even if that had been the arrangement between Fink and Greer there is nothing to show that appellants had any notice of it. As to the third suggestion, the insolvency of Fink could not have affected the question, for so far as appears from the record or from any facts developed therefrom, Fink had the Fleming notes and was the owner of them. Appellants had no knowledge that the Fleming notes had ben sold to any one. While there is an allegation in the bill that Fink was insolvent from July 10, 1910, there, is nothing in the record showing that these appellants knew of his insolvency. They all dealt with him as if he was perfectly solvent and reliable. We do not think that the facts, as disclosed by this record, bring this case within the rule announced in the case of Blake v. Blake, 260 Ill. 75, as contended for by appellee. There the property was sold by a guardian to his brother, a deed made to him, and the brother then re-conveyed the property to the guardian within a few days and the two deeds were filed for record at the same time; which, under the circumstances, was held by the court to be sufficient to put the purchaser upon notice.

It seems to us from the reading of this record that the appellants and appellee all trusted Fink, all knew that he was a real estate man and understood the real estate business, and none of them had any suspicion, or real cause for suspicion, that Fink was endeavoring to defraud any one. We believe that appellants had a right to be governed by what appeared of record, and that they would be bound by what appeared thereon, and that if the appellee and other purchasers of the Fleming notes were unwilling to trust Fink, they could have in some manner placed upon the record some notice of the fact that the Fleming notes had been sold to them, and if they had done so their rights would have been- fully protected and doubtless Fink would not have been enabled to have defrauded any one by procuring the Greer mortgage. It is true that this is a hardship upon appellee and the other purchasers of the unpaid Fleming notes, but we are of the opinion that under the law the equities of this case are with the appellants and that the Circuit Court erred in rendering a decree for the appellee, in giving the appellee and the holders of the unpaid Fleming notes a prior lien to that of appellants, and the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    T. E. Gage, Appellee, v. City of Vienna, Appellant.
    (Not to be reported In full.)
    Appeal from the Circuit Court of Johnson county; the Hon. Albert W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and' remanded.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by T. E. G-age, plaintiff, against the City of Vienna, defendant, to recover for damages for personal injuries sustained as the result of being thrown from a buggy while traveling on the streets due to his team running away and running into a wagon standing on the street. From a judgment for plaintiff for $1,500, defendant appeals.
    For a full statement of facts, see the opinion in the case on a former appeal, 196 Ill. App. 585.
    The first instruction given for plaintiff was as follows: “The court instructs the jury that the defendant, City of Vienna, is bound by law to use reasonable care, caution and supervision to keep its streets and street crossings in a reasonably safe condition to travel in the ordinary modes of travel, and if it fails to so use reasonable care and caution to keep its streets and street crossings in a reasonably safe ¿condition, it is liable for the injuries sustained in consequence of such failure, provided the party injured is himself exercising reasonable care and caution for his own safety before the accident occurred.” Objection is made to this instruction that it, in effect, directed a verdict and omitted the element of notice.
    The defendant, however, asked an instruction which was refused and contained the following language: “In this case, even though you might believe that the plaintiff sustained his injuries complained of by reason of a wagon standing in a public street, still if you shall further find from the evidence that the said wagon was placed in said street by William Mathis, or by some other person in no way connected with the said city, and that said city had neither actual or constructive notice of such obstruction, as explained in other of these instructions, then in such case the defendant would not be liable in damages for such injuries and you should find the issues for defendant as to any damages so caused.”
    Abstract of the Decision.
    1. Trial, § 195

      —when refusal to direct verdict in action for personal injuries is proper. In an action against a city for damages for personal injuries, due to plaintiff’s team running into an obstruction on the street, held that the court did not err in refusing to direct a verdict for defendant where there was evidence tending to show defendant was guilty of negligence and of permitting obstructions from time to time in the street at or near the place where plaintiff was injured.
    2. Municipal corporations, § 1100

      —what instruction directing verdict in action for injuries due to defective street must contain. Notice of the condition of the street on the part of a city where an injury occurred and of the fact that it was obstructed or out of repair is one of the essential things to be proven in an action for damages because of such injury, and in directing a verdict the instruction must contain the element of notice, actual or constructive.
    3. Municipal corporations, § 1100

      —when instruction in action for personal injuries due to team running into obstruction on street is improperly refused. In an action against a city for damages for personal injuries hy reason of plaintiff’s team running into an obstruction on a street, held that it was reversible error to refuse an instruction explaining what is actual and what is constructive notice to a city as to the condition of its streets, and advising the jury that if a wagon was left on a street by a third party and the city had no notice,' actual or constructive, of it or was not in any manner permitting such obstruction, then there would be no liability.

      W. T. Smith and Spann & Spann, for appellant.
    O. E. Morgan and C. S. Miller, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.


text:
    George E. Nichols, Appellant, v. Rogers-Nichols Live Stock Commission Company, Appellee.
    1. Judgment, § 135

      —when motion to set aside default is not fatally defective. Where there was enough in the beginning and signing of a motion to set aside a default to identify it as having been made on behalf of the defendant, the mere fact of an incorrect description given the defendant in the body of the motion ought not to deprive him of a right of hearing thereunder, or, where such motion was filed during the term at which judgment on such default was rendered, to deprive the court of jurisdiction to continue such motion to a subsequent term and then permit such amendments as were necessary to enable the parties to properly and fully submit their claims.
    2. Judgment, § 142

      —when failure to file record of former suit or copy with affidavit filed in support of motion to set aside default is immaterial. Where an affidavit filed in support of a motion to set aside a default of defendant upon which judgment was rem dered set up a former suit between the same parties and that it had been dismissed for want of equity, held that a failure to file with such affidavit the record of the former suit or a copy thereof was not important in disposing of such motion.
    3. Appeal and ebrob, § 1380

      —when action of court on motion to set aside default will not be disturbed. A motion to set aside a default is addressed to the sound legal discretion of the court, with the exercise of which a court of review will not interfere unless it appears to have been wrongful and oppressive.
    4. Costs, § 14

      —what costs plaintiff is liable for on dismissal of case upon setting aside judgment against defendant. Where there was no order setting aside a judgment against defendant requiring him to pay costs up to the date of setting aside such judgment, an order thereafter dismissing the case at plaintiff’s cost could only cover such costs as defendant had not been adjudged to pay.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Rehearing denied January 13, 1917.
    W. E. Knowles, for appellant.
    Keeee & Sullivan, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that at the May term, 1915, of the City Court of East St. Louis, George Nichols, appellant, obtained a judgment by default against Rogers-Nichols Live Stock Commission Company for $367.71.

The declaration consisted of the common counts, to which an affidavit of merits was attached stating that the demand, “Is for balance due him on account from the defendant and that there is due to the plaintiff from the defendant, after allowing all just credits, deductions and set-offs, the sum of $338.57, together with interest at the rate of five per cent, per annum from the 1st day of August, 1913, to April 21, 1915, making a total amount due the plaintiff from the defendant on last mentioned date the sum of $367.71.” On the 19th day of May, 1915, and during the May term of said court, the defendant describing itself as Nichols-Rogers Live Stock Commission Company filed a motion, with affidavits accompanying the same, asking the court to set aside the judgment theretofore rendered at said term. While the record was in this condition and on July 20, 1915, the May term of said court was adjourned and this cause, with other undisposed of matters, was continued under a general order of continuance. At the September term of said court the appellant filed a motion to strike from the files the motion and affidavits purporting to be filed in said cause for the reason that they were not filed by any person, firm or corporation who was a party to the suit. On October 4th, and during the September term of said court, the defendant asked leave to amend the motion filed at the May term, by substituting for the name Nichols-Rogers Live Stock Commission Company the name of the real defendant, Rogers-Nichols Live Stock Commission Company. The appellant filed a motion to strike the motion of appellee from the files on the ground that it was not filed, at the term judgment was rendered. Upon a hearing the court denied the motions of appellant and granted the motion of appellee and gave appellee leave to plead by the 11th day of October on payment of costs to date. On October 15, 1915, the cause was regularly placed on trial and the appellant, choosing to stand by the record as made, refused to proceed further and the cause was dismissed by the court for want of prosecution at the cost of the plaintiff, and execution was issued therefor.

The principal contention of appellant is that no motion for a new trial was made at the May term of the City Court, at which judgment was rendered, by any person, firm or corporation who was a party to the suit, and that no motion having been made at the May term, the court was without jurisdiction at the September term to proceed further with the hearing of the cause. It appears from the record herein that the motion entered to set aside the judgment begins as follows: “And now comes the defendant, Nichols-Rogers Live Stock Commission. Company by Keefe & Sullivan, its attorneys, and moves the court to set aside the judgment herein and for cause therefor assigns the following, together with the facts set up in said affidavits herewith filed; ’ ’ which are made a part of the motion. The motion is signed as follows: “Keefe & Sullivan, attorneys for defendant.” It will he observed that the motion was made by the defendant but misdescribed the person of the défendant which is styled, “Nichols-Rogers Live Stock Commission Company” instead of “Rogers-Nichols Live Stock Commission Company,” as set forth in the declaration and judgment. It will also be observed that at the conclusion of the motion it is signed by Keefe & Sullivan, attorneys for defendant. There was certainly enough in the beginning of the motion, and in the signing of the motion, to identify the motion as having been made upon behalf of the defendant, and the mere fact of an incorrect description given to the defendant in the body of the motion ought not, in our judgment, to deprive the defendant of a right of hearing thereunder. Supposing that the description, “Nichols-Rogers Live Stock Commission Company” had been omitted entirely, then the motion would have been certain and definite as to the person in whose behalf the motion was entered, so that as we view it these words could well have been treated by the court as mere surplusage. It appears to us that the motion was really made by the defendant and that the court had a right to treat it as having been so made, and that the court acquired jurisdiction at the May term to hold on to the case and continue it and dispose of it at the September term, as it did, and as the court properly held on to its jurisdiction of the cause it then had a right to permit any amendments that were necessary to permit the parties to properly and fully submit their claims. The objection urged is technical and without merit and we believe that the lower court did not err in disposing of the motion at the September term.

It is also insisted by counsel for appellant that the motion to set aside the judgment is without merit and that it was an abuse of discretion of the court in settihg aside a default on the grounds stated in the affidavits: First, because there was no diligence shown; second, because the affidavits do not show any merit but only state the conclusion that appellee did not owe appellant any money and that there was no record showing a former suit between the same parties upon this cause as having been dismissed for want of equity.

It appears from the evidence that the appellee had Mr. Keefe in its employ to represent it in any legal business, and that when summons was served he called over the telephone to Mr. Keefe’s office, which was answered by Keefe’s stenographer, and that appellant advised them of the service of the summons, but it was supposed by the stenographer that it was a paper in the old case that had been pending in chancery and disposed of, and nothing was said about it to Mr. Keefe, and the same was overlooked by the stenographer. It is also said that the affidavits attached to the motion did not show any merit in appellee’s defense. The affidavit did state that appellee was not indebted to appellant and did not owe him anything, and the language of the affidavit of appellee was fully as broad as that filed by appellant with its declaration, as it only charged that a balance was due. The affidavit also showed that a former suit had been tried between these parties in chancery and the bill dismissed for want of equity, and while it does appear that the record of the former suit, or a copy thereof, was not attached to the affidavit, we would not deem that of importance in disposing of this motion. It doubtless would be important upon the trial of the case to show such proceeding by a certified copy of the record, but not so upon a mere motion.

It is well settled that a motion to set aside a default is addressed to the sound legal discretion of the trial court. It has the opportunity to view the surrounding-conditions and determine properly more nearly what was necessary to be done to further the interests o' justice in the particular case than the Appellate Court could. In the case of Hartman v. Viera, 113 Ill. App. 218, the court says: “It is well settled in this State that a motion to set aside a default is addressed to the sound, legal discretion of the court, and that unless it appears that such discretion has been wrongful!} and oppressively exercised, a court of review will not interfere. Culver v. Brinkerhoff, 180 Ill. 548; Eggleston v. Royal Trust Co., 205 Ill. 178.” We are not able to see how the appellant was in any manner wronged or how the discretion exercised by the court was in any way oppressive to the appellee, and none has been pointed out to us by counsel in his argument. The appellant was not deprived of any right for if he had a just claim against the appellee the court gave him an opportunity to present it and he refused so to do.

It is also claimed that it was error to render judgment against the plaintiff for costs, as that the order made would include the costs that had heretofore been adjudged against the defendant. There was no order setting aside the judgment of the court requiring the defendant to pay the costs up to the date of the setting-aside of the judgment, and the order rendered dismissing the suit at plaintiff’s cost could only cover such costs as the defendant had not been adjudged to pay.

We are of the opinion that the court in this proceeding herein did not commit any reversible error and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    William R. Daly, Appellee, v. New Staunton Coal Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mines and mineeals, § 114

      —Who is not vice principal. The bottom boss in a coal mine while performing duties in the mine not pertaining to his duties as such boss, held not to be a vice principal so as to exempt the owner of the mine from liability for negligence resulting in injuries to such boss while performing such duties.
    2. Mines and monekaes, § 182

      —what are questions for jury in

      action by miner for injuries sustained toy collision of train of cars with insufficiently lighted motor-drawn train. In an action by a miner for damages for personal injuries sustained as the result of the collision of a train of empty cars on which he was riding down grade by gravity in a coal mine colliding with a motor-drawn train of empty cars, held that whether a light on the motor was a conspicuous light such as was required by the statute (J. & A. If 7489), and whether the plaintiff would have been able to have observed a light of sufficient brilliancy and have known of the approach of the motor in time to have escaped injury were questions for the jury.

      Appeal from the Circuit Court of Madison county; the Hon. J. P. Giulham, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916..
    Statement of the Case.
    Action by William R. Daly, plaintiff, against New Staunton Coal Company, defendant, to recover damages for injuries received as the result of his being thrown from a train of empty cars, upon which he was riding down grade by gravity in defendant’s mine, upon its colliding with another train of empty cars drawn by a motor. From a judgment for plaintiff for $9,500, after requiring a remittitur of $5,500, defendant appeals.
    William: E. Wheeler, for appellant.
    Burton & Burton and Clark & Hutton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

3. Negligence, § 196 —what is question for jury. The question of proximate cause of an injury is for the jury.

4. Mines and minerals, § 189 —when instruction quoting statute as to lights on cars is not erroneous. Where the only contention in an action by a miner for personal injuries was whether there was a white light on the front of a motor in a coal mine which struck a train of cars on which he was riding and a verdict was directed upon a finding there was such a light, an instruction quoting the whole of the statute referring to a red light as well as a white one (J. & A. jf 7489), while there was no proof as to a red light, could not have misled the jury and was not objectionable.

5. Workmen’s Compensation Act, § 12 —when instruction as to defenses employer electing not to operate under is deprived of is not erroneous. There is no error in giving an instruction fully advising the jury as to the defenses which an employer is deprived of by its electing not to operate under the Workmen’s Compensation Act, distinguishing the case of Price v. Clover Leaf Coal & Mining Co., 188 Ill. App. 27.

6. Instructions, § 107 —when instruction merely presenting plaintiff’s view of case is not erroneous. An instruction which does not direct a verdict but merely presents plaintiff’s view of the case is not erroneous for not including the defense urged by the defendant, particularly where an instruction on behalf of the defendant fully advises the jury as to his rights.

7. Negligence, § 237 —when modification of instruction on proximate cause is correct. In an action for negligent injuries, held that an instruction offered by the defendant, to the effect that if the jury found the plaintiff was negligent and that his negligence was the proximate cause of his injury they should find the defendant not guilty, was erroneous, and that the court properly inserted the word “sole” before the word “promixate.”

8. Damages, § 122 —when verdict for personal injuries as remitted is not excessive. In an action against an employer for damages for personal injuries, where the plaintiff was shown to have lost a leg and been sick and suffered severe pain for many months, had earned .a salary of $100. a month, and by the injury was wholly disabled from performing the work he was accustomed to or had prepared to perform, held that a verdict for $15,000 as remitted to $9,500, was not excessive.


author: Mr.. Justice McBride

text:
    Newton J. Griffin, Administrator of the Estate of Christia Ann Kirkpatrick, Deceased, Plaintiff in Error, v. S. F. Hart, J. Otis Hart, M. J. Hart and Martha Hart, Defendants in Error.
    Bills and notes, § 74

      —•what does not constitute material alteration of note. Where the note offered in evidence in an action thereon purported to be No. 7 of a series of notes and to be due forty-two months after its date, but an erasure appeared at the place where the figures “42” occurred, and the testimony showed the note was the last of a series of seven notes which were to mature according to a contract under which one matured every six months, held that such erasure was not material and the court erred in refusing to admit such note in evidence.
    Error to the Circuit Court of Saline county; the Hon./ Al beet W. Lewis, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    H. A. Evans, for plaintiff in error.
    Whitley & Combe, for defendants in error; H. 1ST. Finney, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr.. Justice McBride

delivered the opinion of the court.

This action was originally commenced before a justice of the peace upon the following note:

“$100.00 February 22, 1910.'

“42 months after date we promise to pay to the order of A. M. Yo.ung, one hundred dollars at seven per cent, from date. Value received.

S. F. Hart

J. Otis Hart

M. J. Hart

Martha Hart.

“(Indorsements on the back of note:)

“A. M. Young, W. J. Kirkpatrick

“Int. paid up to August 22, 1913,”

After a hearing before the justice of the peace the cause was appealed to the Circuit Court of Saline county, Illinois, and there tried. Upon the hearing in the Circuit Court the note was offered in evidence. The defendant objected to the introduction of the note because it appeared that an erasure or rubbing of the paper had been made at the place where the figures “42” were written. The original note was certified to this court for inspection and it has the appearance of having been rubbed. Upon the objection made by the defendant in error, the plaintiff in error then offered evidence showing that the note in question was the last of a series of seven notes of one hundred dollars each, all bearing date of February 22, 1910, and maturing one every six months, and again offered the note in evidence, but upon objections made by defendant the court refused to admit the note in. evidence. The plaintiff then rested his case and the court directed the jury to return a verdict for the defendant, which was done and judgment rendered, against plaintiff for costs, to reverse which judgment this writ of error is prosecuted.

The plaintiff in error contends that the court erred in refusing to admit the note in evidence and in directing a verdict for the defendant.

The defendant did not file an affidavit denying the execution of the note but insists that the erasure appears upon its face to be a material one and for that reason it was the duty of the court as a matter of law to exclude it from the consideration of the jury. Quite a number of authorities have been cited by counsel for plaintiff and defendant, the principal of which we have carefully examined and find that there is some conflict in the decisions of our court upon this question. In the case of Reed v. Kemp, 16 Ill. 445, in commenting upon alterations of an instrument offered in evidence, the court says: “There is no presumption of law arising upon the face of an instrument from bare inspection of its appearance, whether it has been, and if so, when, altered from the true contract; such appearance may throw suspicion and distrust upon the instrument, but it is a question of fact and not of law. Gillett v. Sweat, 1 Gilm. 489. In Walters v. Short, 5 Gilm. 256, the court expresses dissatisfaction with a rule of presumption in favor of the alteration being made at the time of the execution of the instrument; but while they seem to incline to a contrary presumption, they lay down no rule on the-subject as to a presumption in law at all, but seem to put it, as we think it should be, upon the matter of fact. The party producing such an instrument is called upon for explanations, and if he fail to give them, suspicion may become the conviction of fact in the mind of the court or jury, that such alterations, or appearances of alteration, were subsequent to the execution and delivery. Such a conclusion seems strangely preponderant in the mind of the couid in that case. Still these explanations may, themselves, be found on the face of the paper.” In the case of Hodge v. Gilman, 20 Ill. 437, the court says: “It is, at least, the settled law of this court that such interlineations must be explained by the party claiming the benefit of the paper, the presumption of law being that the interlineations were made after the execution by the maker.” Again, in the case of Milliken v. Marlin, 66 Ill. 13, the court in commenting upon the question of the alteration of an instrument says: “As to the eleventh instruction, it was claimed that the power of attorney which was in evidence showed that the description of the land was in a different ink and handwriting from that in the body of the instrument, and showed an alteration. If this was true, then it was a fact to be found by the jury, and authorized such an instruction, properly limited. It has been held that on the production of such an instrument, apparently altered, the law raises no presumption as to when the change was made, or by whom, but these questions must be determined by the jury. Reed v. Kemp, 16 Ill. 145, and the authorities there cited. And the jury, in determining the question, will look to the instrument itself for an explanation, as well as to all of the circhmstances in evidence. If there was an apparent alteration in the power of attorney, it was for the jury to determine whether the alteration was made before or after its execution, and with or without the consent of the maker.” Again, in the case of Gage v. City of Chicago, 225 Ill. 218, the court says: “The law indulges no presumption as to when a change in a written instrument was made, but requires the party offering an altered instrument in evidence, if the alteration is material, to explain such alteration satisfactorily to the court before the instrument will be admitted in evidence. Such explanation may satisfactorily appear from the instrument itself or it may be made by extrinsic evidence.” And refers to the case of Reed v. Kemp, supra, and other cases in support of this doctrine. In the case at bar, the plaintiff introduced evidence showing that this was the last of a series of seven notes given in the purchase of a drug store; that they all bore date of February 22,1910, and that under the contract as made and the papers as they were to be executed the notes were to mature every six months from that date, and this note, under the evidence, and as it appears from its face, being No. 7, would mature in forty-two months and on August 22, 1913. So that the date of maturity of the note as it now appears thereon is in harmony with the contract of the parties and with the other notes that were given and with the date that this note No. 7 was to mature, so that this, of itself, would in our judgment be sufficient explanation of the apparent erasure, if material under the decision of the Supreme Court in the case of Gage v. City of Chicago, supra. When it is considered that the note as it now appears, making it due in forty-two months from the date, is in entire harmony with the contract of the parties, and the arrangement that was made for the maturity of the several notes, and this being the last of the series, and as it matures at the exact time that the parties understood it was to mature, we are of the opinion that the erasure complained of is not material as it does not in any manner change the time that the payment of the note was to be made.

We are of the opinion that after the explanations given by the testimony of the witnesses, in connection with the appearance of the note and of the transaction in which the note was executed, that the court erred in refusing to admit the note in evidence, and the judgment of the lower court is reversed and the cause remanded with directions to admit the note in question in evidence upon another trial of the case.

Reversed and remanded with directions.


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    Orlie Hill, Appellee, v. Terre Haute Brewing Company, Appellant.
    1. Landlobd and tenant, § 317*—when plea in action for rent is insufficient. Where, in an action for rent upon a lease of premises to be used for dramshop purposes, a plea was filed setting up that since the execution of said lease it had become unlawful to sell intoxicating liquors in that territory by reason of a vote of the people of the town making said territory “dry,” held that such plea did not present any defense to such action or any question of eviction, as it did not allege a surrender or offer to surrender the premises.
    2. Landlobd and tenant, § 317*—when plea in action for rent relying upon constructive eviction of defendant is insufficient. A plea in an action for rent which relies upon a constructive eviction of defendant is bad if it fails to show a surrender of the premises.
    Appeal from the Circuit Court of Franklin county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Davis, Bogart & Boyse and Layman & Johnson, for appellant.
    W. P. Seeber, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

The appellant filed a plea to the declaration denying liability, to which plea a demurrer was interposed, demurrer sustained and the appellant elected to stand by its plea, whereupon judgment was rendered in favor of appellee in the amount of $1,080 and costs of suit, to reverse which this appeal is prosecuted.

The declaration in this case alleges that on May 12, 1913, the appellee leased to the appellant the Doctor Summers property, located in Block 27, West Frankfort, Illinois, for a period of two years for a monthly rental of $90 per month, payable on the first day of each month during said period, and alleges that the defendant by its said lease agreed to pay to the plaintiff the said monthly rental of $90, and then alleges the sum of $2,000, the rent agreed to be paid, became due and is still due and in arrears and that the defendant has refused to pay the same, to the damage of the plaintiff of $2,000. Attached to this declaration is a copy of the lease, setting* forth the rental of the property as aforesaid for saloon purposes, for the term of two years from June 1, 1913, to June 1, 1915, and the agreement upon the part of the lessee to pay as rent therefor $90 per month. The lease also contains the following clause: 1 ‘ The lessee agrees to furnish lessor an indemnifying bond, which will secure the lessor from any and all loss or damage as a result of a dram-shop being conducted in said building. ’ ’ Also provides that the lessor shall keep the premises in good repair. To this declaration the defendant filed the following plea: “And the defendant, by Davis, Bogart and Boyce, and Layman & Johnson, its attorneys, comes and defends the wrong and injury, etc., and says that the plaintiff ought not to have his aforesaid action against it, the defendant, because it says that the property in said declaration mentioned, viz.: ‘ The Doctor Summers property, located on West Main street, in Block 27, in the original plat of WTest Frankfort, Franklin county, Illinois,’ was and is located in the Town of Denning, in said Franklin county. That at the time of the execution of the lease in said declaration mentioned, it was lawful for persons to sell, in the said Town of Denning, intoxicating liquor when legally licensed so to do. That afterwards, at an election held on the first Tuesday in April, A. D. 1914, in said Town of Denning, there was submitted to the legal voters of said town the following proposition: ‘Shall the Town of Denning become anti-saloon territory’? and the majority of the legal voters voting at said election voted ‘Yes’ on said proposition. That by virtue of the provisions of the statute of the State of Illinois, relative thereto, it became unlawful to sell intoxicating liquor in said Town of Denning the 30th day after said election so held on the first Tuesday in April, A. D. 1914. That, since the expiration of said thirty days after the aforesaid election, it has been impossible for defendant to use said premises for saloon purposes as provided in said lease. That the rent under and by virtue of the lease in said declaration mentioned has been paid to and including the thirtieth day after said election. And this the defendant is ready to verify. Therefore, it prays judgment if the plaintiff ought to have his aforesaid action against him.” To this plea the appellee filed a demurrer which was sustained by the judgment of the court, and the appellant having elected to stand by its plea, judgment was rendered for the appellee for the balance of rent due upon said lease.

The appellant contends that the court erred in sustaining the demurrer to its plea for the reason that while it was lawful to sell intoxicating liquors in the Town of Denning at the time the lease was entered into, that before the lease had expired the Town of Denning had become local option territory and it became unlawful to sell liquors in said town or in said buüding, and that the purpose for which the building had been leased had failed by operation of law and by reason thereof the contract was terminated and no liability existed upon the part of appellant to pay the rent specified in the lease. There was some argument presented by counsel for appellant and for appellee as to the meaning of the word “saloon” specified in the lease, but we have no doubt that the purpose of the lease was to permit appellant to keep in said building a dramshop wherein intoxicating liquors could be sold.

Upon the proposition as to the effect that an election changing the territory from that in which a dramshop was permitted to be operated, to territory prohibiting the operation of a dramshop, many authorities have been cited by counsel for both sides. We have examined most of these authorities and find that quite a respectable number sustain the contention of appellant, holding that where there has been a constructive eviction by operation of law that such terminated the lease. Many authorities cited by appellee of equal weight and respectability hold that if a lessee desired to protect himself against such changes that he should have provided for such contingency in the lease, and having failed to do so he would not be relieved from the payment of rent. So far as we have been able to ascertain, this question has never been determined by any of the courts of Illinois; but conceding the view of appellant to be correct, we do not believe that the question sought to be made by the appellant is presented by this plea. The only matter that the plea sets up is that by reason of the'vote it became unlawful to sell intoxicating liquors in said territory and building, and it had been impossible for the defendant to use said premises for saloon purposes as provided in said lease. This is not sufficient to relieve the appellant from the payment of rent. For aught that appears by this plea, the appellant continued in possession of the building until the expiration of the period for which it was leased. If the appellant relied upon an eviction, then it should have shown, by its plea not only that it had become unlawful to sell liquor in the building but that it had surrendered or offered to surrender possession of the building to the appellee. This was appellant’s plea and should have shown upon its face every fact necessary to constitute a complete eviction. The plea must be most strongly construed against the pleader. The facts set up by the plea do not pretend to show an eviction by force but such matters as constitute a constructive eviction, if anything. What is necessary to constitute a constructive eviction? It is said in Woods Landlord and Tenant, page 798, in discussing the question of eviction by operation of law and otherwise: “But, in order to operate as an eviction, the act must not only be such as to warrant, but also such as was within a reasonable time followed by the tenant’s giving up possession, and if he does not quit, but remains in possession, or does any act inconsistent with his right to abandon the premises, he will be treated as having waived the right, and the doctrine of constructive eviction will not apply, as sue! acts as create a constructive eviction amount to a right to abandon the premises rather than a bar to an action for rent, because the tenant may waive his rights arising from such acts; and by remaining in possession for an unreasonable time after their existence he is treated as having done so.” It is said in the case of Barrett v. Boddie, 158 Ill. 484: “The eviction sought to be shown by appellant was constructive. The possession of the premises was retained by the tenant after the alleged acts of eviction. Possession retained after an alleged constructive eviction is a waiver of the right of abandonment. No constructive eviction exists without a surrender of possession. With retention of possession after constructive eviction, liability for rent exists, according to the terms of the lease, during occupancy thereunder.” This plea fails to set forth a surrender of possession or offer to surrender the same to the appellee, and, having failed to do so, we are of the opinion that the plea failed to set up a defense to the action and is insufficient, and it would be unjust to allow the appellant to retain possession and avoid payment of the rent.

The court did not err in sustaining the demurrer to the plea, and the judgment of the lower court is affirmed.

Judgment affirmed.


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    Illinois State Bank, Appellee, v. Queen City Quarry Company and W. H. Hill, Appellees. H. C. Barnard, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Bill by Illinois State Bank, a creditor of Queen City Quarry Company, a corporation, complainant, against Queen City Quarry Company, W. H. Hill and H. C. Barnard, defendants, seeking to reach funds belonging to said Queen City Quarry Company, and to make defendants W. H. Hill and H. C. Barnard liable for the amount which they had knowingly permitted the debts of the corporation to exceed the amount of the capital stock, and cross-bill by H. O. Barnard against W. H. Hill for an accounting for money unpaid for stock and other money collected by him, and for an allowance of the sum of $3,306.78 as salary as secretary of the corporation, and other relief. From a decree requiring Hill to pay to a receiver of the corporation appointed by the court the sum of $468.02, and requiring Barnard to pay to the receiver the sum of $3,306.78 received as salary and a further sum of $100, and dismissing the cross-bill for want of equity, defendant Barnard appeals.
    Martin D. Baker and Dan Me Glynn, for appellant.
    Keefe & Sullivan, for appellees; Thomas E. Gillespie, of counsel.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Corporations, § 288 —when corporation is estopped to object to right of officer to salary. Where the secretary of a corporation, whose duties were not prescribed by any statute or by-law, performed the duties of general manager and conductor of the business of the corporation, with the knowledge of and without objection by the stockholders and directors, and the corporation appropriated such services, held that such corporation was estopped to object to such officer’s right to the salary which it had agreed to pay him as secretary.

2. Corporations, § 300 —what is nature of liability of directors and officers assenting to creation of indebtedness in excess of capital stock. The liability of directors and officers of a corporation under Hurd’s Rev. St. ch. 32, sec. 16 (J. & A. jf 2433), providing that such directors and officers who assent to an indebtedness of the corporation in excess of its capital stock shall be personally and individually liable to creditors for such excess, is that of a surety.

3. Corporations, § Zbl —what is insufficient to make director or officer liable for creation of indebtedness in excess of capital stock. Mere recognition by a director or officer of a corporation of an indebtedness of the corporation in excess of its capital stock, on the fact he might have interposed to prevent such excess, is not sufficient to make him liable under Hurd’s Rev. St. ch. 32," sec. 16 (J. & A. If 2433), providing that directors or officers of a corporation who assent to indebtedness in excess of its capital stock shall be personally and individually liable for such excess.

4. Corporations, § 299 —when officer contracting indebtedness in excess of capital stock and assets may not compel stockholder to contribute to payment of his salary. Where one of two directors and sole stockholders of a corporation was also secretary of such corporation and as such conducted the entire business of the corporation upon an agreed salary for such services, and contracted indebtedness of the corporation in excess of its capital stock and assets, held that such secretary could not compel such other stockholder to contribute to payment of such salary incurred under such circumstances.

5. Appeal and error, § 1768 —when decree will not be changed, ,so as to increase liability. A decree will not he so changed on appeal in favor of the appellee so as to increase the liability of nthe party against whom it was rendered where the appellee asks in argument that such decree be not reversed and the bill contained no proper basis for such change other than in its prayer for relief.