text:
    Catherine O’Malley, Appellee, v. Supreme Council Catholic Mutual Benefit Association, Appellant.
    Gen. No. 15,928.
    1. Fraternal benefit societies—statute pertaining to payment of benefits construed. The statute of this state as follows: “The payment of such benefits in all cases being subject to compliance by the member with the contract, rules and laws of the society,” only relates to fraternal benefit societies organized under the laws of this state, and, further, it does not inhibit the application of the doctrine of waiver and' estoppel in an action to recover the amount of a benefit certificate issued by such a society.
    2. Fraternal benefit societies—what waives provision providing for suspension. A course of dealing by which a local branch of a fraternal benefit society regularly accepted premiums after the specific due dates thereof, operates to waive a provision providing for suspension in event of failure promptly to pay.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    Carlos S. Hardy and Charles O’Donnell, for appellant.
    Cannon & Poage, for appellee; John B. Heinemann, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover upon a benefit certificate issued to Patrick F. O’Malley, the husband of appellee. A trial by jury resulted in a verdict and judgment against appellant for $1,935.84, being the amount of the certificate payable to appellee, together with interest, less $3.74, being the amount of one assessment.

Appellant is a fraternal beneficiary society organized under the laws of the State of New York, and having its main office in the city of New York. Each subordinate division or body of appellant is known as a “branch.” The insured first became a member of Branch 3, in the city of Chicago, November 15, 1899, when a benefit certificate for $2,000 was issued to him, $1,000 payable to his wife and $1,000 to his daughter. On November 2,1905, a duplicate certificate was issued to him, upon his representation that the original was lost or destroyed. On November 11, 1905, the insured surrendered said certificate to appellant and applied for the issuance to him of another certificate in lieu thereof, wherein $1,750 should be payable to appellee and $350 to the daughter of the insured. The insured died December 5, 1905, and the certificate here involved, and which it is admitted was in force November 30, 1905, was issued December 7, 1905, in pursuance of the application made November 11th, preceding. At the time of his death the insured had not paid an assessment for $3.74, which was due and payable on or before November 30th. Appellant seeks to avoid a recovery on the certificate upon the ground that, by the terms of the contract, the failure of the insured to pay the November assessment operated ipso facto to suspend him from the association.

In and by his application for the certificate the insured agreed that upon a failure to pay any assessment on or before the day on which the same should fall due, or upon a failure to comply with any of the terms of the agreement, such agreement should become null and void, and all moneys paid should be forfeited to the association for its sole use and benefit.

Section 8 of the beneficiary fund laws of appellant provides in part as follows: “On or before the last day of each month, each member shall pay to the financial secretary of his branch his monthly beneficiary payment; if the said beneficiary payment is not paid at or before the time above provided, he is hereby declared to be suspended from all rights of the association, and if a member die while suspended he shall not be entitled to participate in the beneficiary fund.” * * * “Any member suspended for nonpayment of beneficiary and remaining suspended during the period of three months or less, shall require a majority vote of the members present at a regular meeting of the branch to reinstate him, pay all beneficiary moneys due at the time of his suspension, and from the date of his suspension to the date of his reinstatement, including the payment for the month in which such reinstatement is had. Any member remaining suspended for a longer period than three months for nonpayment of beneficiary, is hereby expelled from the association, the same to be entered in the records of the branch.” The constitution of Branch 3 of appellant association contains similar provisions.

It is conclusively established by the evidence that a uniform custom and course of dealing existed in Branch 3, whereby the members were permitted to pay assessments due in any one month at the first meeting of said branch in the month following; that the regular meetings of said branch during the year 1905 were held on the second and fourth Wednesdays of each month; that all members who failed to pay their assessments the preceding month were not considered as having been suspended, if they paid their assessments at the first regular meeting in the month following, and as to such members no" action was taken by said branch to reinstate them by a majority vote, as provided by the constitution and laws of the association; that the first regular meeting of Branch 3 in December, 1905, was held on December 14th, nine days after the death of the insured.

It is urged that there can be no recovery in this case predicated upon a waiver by appellant of the suspension of the insured and of a right to declare a forfeiture, because the statute relating to fraternal benefit societies, provides: 1 ‘ The payment of such benefits in all cases being subject to compliance by the member with the contract, rules and laws of the society.” Rev. Stat. (1909), 1329. A complete answer to this contention might be found in the fact that the portion of the statute quoted only relates to fraternal beneficiary societies organized under the laws of this State, while appellant is organized under the laws of a foreign State, but aside from this fact we are not disposed to hold that the statute inhibits the application of the doctrine of waiver or estoppel in an action to recover the amount of a benefit certificate issued by such a society. Such holding would be in direct conflict with the uniform decisions of the court of last resort in this State. Conductors’ Ben. Ass’n v. Tucker, 157 Ill. 194; Jones v. Knights of Honor, 236 Ill. 113.

The local branch was the agent of the Supreme Council, and its conduct and course of dealing with its members, including the insured, amounted to a waiver by it of the provision in the contract of insurance, whereby a member was declared to be suspended from all rights of the association, if the assessment was not paid on or before the last day of the month, and extended the time when such suspension should become operative until the first meeting in the month next following the month in which the assessment was payable. In U. S. Life Ins. Co. v. Ross, 159 Ill. 476, the court quoted with approval from May on Insurance as follows: “If the practice of the company and its course of dealing with the insured, and others known to the insured, have been such as to induce a belief that so much of the contract as provides for the forfeiture in a certain event will not be insisted upon, the company will not be allowed to set up such forfeiture as against one in whom their conduct has induced such belief.” The rule announced is predicated upon the doctrine of waiver or estoppel, and if, as we have held, the doctrine is applicable to fraternal beneficiary societies, the rule may properly be invoked in the case at bar.

The ruling of the trial court upon the instructions was in accord with the views here expressed.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Evangeline Smith, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,936.
    1. Negligence—when doctrine res ipsa loquitur applies. Where the negligence charged is general and relates to an instrumentality wholly within the control of the defendant, the doctrine of res ipsa loquitur is applicable, and the presumption of negligence arises.
    2. Evidence—when declarations of pain competent. Declarations of pain and suffering are competent only where made as part of the res gestae, or to a physician during treatment, or upon an examination prior to and without reference to an action for damages, unless the examination is made at the instance of the defendant, with a view to the trial.
    3. Evidence—who competent as physician to testify to declarar tions of pain. An osteopath to whom declarations of pain are made for the purpose of treatment may testify thereto even though such a practitioner may not be regarded by the medical profession as a physician.
    4. Instbuctions—ichen upon question of damages in personal injury case erroneous. Where the declaration claims damages as the result of the inability óf the plaintiff by reason of her injuries to pursue a certain business in which she was engaged, an instruction is erroneous which tells the jury that it was not necessary that any witness should have expressed an opinion as to the amount of such damages, but they might make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the business affairs of life.
    5. Instructions—when, as to inferences from failure to produce evidence erroneous. An instruction upon this subject is erroneous where the defendant though introducing no evidence to rebut the charge, relied upon the improbability of the evidence introduced by the plaintiff.
    Action in case for personal injuries. Appeal from, the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1911.
    Franklin B. Hussey and Watson J. Ferry, for appellant.
    Samuel B. King and Jule F. Brower, for appellee.
   Mr. Presiding Justice Baume

delivered the opinon of the court.

This is an action in case to recover damages for personal injuries. A trial by jury in the Superior Court resulted in a verdict in favor of appellee for $2,500, whereof she remitted $500, and judgment was thereupon entered against appellant for $2,000.

The declaration contains three counts, each of which recites that on July 12, 1906, appellee became a passenger upon a trailer car which was connected with and drawn by a grip car propelled by an endless cable. The first count charges that, when said trailer car was in motion on Wabash avenue, and at or near the intersection of Peck court with said Wabash avenue, the appellant, by its servants, then and there negligently and carelessly permitted said car to, and the said car did, negligently and violently jolt, with a jerking motion, by reason of aforesaid negligence of the servants of the appellant; and that by means of said jolt appellee was thrown in violent contact with the woodwork of said car on which she was riding as aforesaid, so that her neck at a point below and near the base of her skull was brought in violent contact with said woodwork, and her head was then and thereby injured, etc.

The second count charges that appellant so negligently and unskilfully operated said car upon which appellee was riding as a passenger that she, while exercising all due care for her personal safety, was at a point in said Wabash avenue, at or near the intersection of said Wabash avenue with Peck court, violently thrown against the woodwork of said car at the back of the seat in which she was so riding as a passenger as aforesaid, by a violent jolt, and was, by reason of the same negligent operation of said car as aforesaid, violently thrown down and forward on the floor of said car, and her head was then and thereby injured, etc.

The third count charges that as said trailer car upon which appellee was a passenger approached the intersection of Wabash avenue with said Peck court, appellant, by its servants, then and there negligently and carelessly permitted said trailer car to, and the said trailer car then and there did, negligently collide with another car which was then and there under the control of appellant, by its aforesaid servants, which then and there collided with the rear end of said trailer car upon which appellee was riding as a passenger by reason of the aforesaid negligence of the servants of appellant; and that by means of said collision appellee was thrown in violent contact with the woodwork of said car on which she was riding as aforesaid, so that her neck, at a point below and near the base of her skull, was brought in violent contact with said woodwork, and her head was then and thereby injured, etc.

Appellee was the only witness who assumed to testify to the facts and circumstances relatihg to the operation and movement of the cars, and the manner in which she claims to have been injured thereby. The testimony of the other witnesses related solely to the extent of her alleged injuries and the condition of her health.

Appellee testified, in substance, on direct examination that at the time of the trial, March, 1909, she was 42 years of age; that on July 12, 1908, she boarded a north-hound trailer car, attached to a grip, car operated by a cable, at the corner of 55th street and Washington avenue, and occupied the front seat on the trailer; that several times during the journey she looked around to see what was hack of the car she was in, and noticed a mail car; that when she was nearly down town she looked around to see what the delay was, and still noticed the mail car, and when the trailer about reached Peck court, there came a thud; that the car came to a standstill, sending her first backward, hitting the back of her head against the brace of the window, then throwing her forward and around onto her knees; that the car had partially come to a standstill before the thud came, and when it came it lifted the trailer car,—tipped up the rear end; that she was unconscious for a short time; that upon regaining consciousness, she was still on her knees and tried to get hack on the seat; that she was then very dizzy; that at the time she lost consciousness she did not know whether the trailer had come to a stop or not; that it was not in motion when she regained consciousness, and. at that time the mail car was directly up to the trailer; that as far as she could see the mail car was in contact with the trailer, and she should say it was in contact; that the thud to which she referred was a “terrible crash”; that when she regained her seat she was very faint and dizzy and had the sensation of something dark falling before her eyes; that the car stood still for some minutes and the conductor came and asked if she was hurt, and inquired her name and address; that she alighted at-the corner of Wabash avenue and Adams street. The further direct ex-animation of appellee related to the extent of her alleged injuries and her treatment therefor. On cross-examination appellee testified that it was a rather natural occurrence with her- to look around, when riding on the cars, to see if any one got on that she knew; that she could not say whether she looked back three or four times; that the last time she looked back, about a block south.of Peck court, she noticed another grip car drawing a car behind it; that she could not'say whether the car was moving or standing still at the time she felt the bump; that she could not tell from anything she saw how close the front bumper or fender of the grip car of the train in the rear was to the rear end of the car she was on; that it might have been six inches or three feet. The further cross-examination of appellee related to the extent of the injuries she claims to have sustained, and to her general health and physical condition covering a period of several years prior to the accident in question. Her cross-examination in relation to the latter subject disclosed that in 1899 she had undergone a surgical operation involving the removal of an ovarian tumor, and was in a hospital for four or five weeks; that in the same year, or the year 1900, she had a miscarriage; that in 1895 she had an attack of peritonitis, and also had a miscarriage.

It is insisted that the verdict is not justified by the evidence because each count of the declaration alleges a' specific act of negligence, and the testimony of appellee, which was the only evidence introduced in support of those allegations, fails to establish them, or either of them.

As the judgment must be reversed and the cause remanded for errors of law hereafter considered, we shall refrain from a discussion of the evidence in detail, and from a statement of our conclusions relative to its probative force. It is sufficient to say that the court did not err in refusing to give the peremptory instructions tendered by appellant.

Without here restating the charge of negligence alleged in each of the three counts of the declaration, we are clearly of the opinion that the negligence charged in each of the second and third counts is general and not specific. Chicago U. T. Co. v. Mee, 136 Ill. App. 98; Chicago U. T. Co. v. Berkes, 136 Ill. App. 105; West Chicago St. Ry. Co. v. Mileham, 138 Ill. App. 569; Chicago City Ry. Co. v. Barker, 209 Ill. 321. Where, in a case like the one at bar, the negligence charged is general, and relates to an instrumentality wholly within the control of the defendant, the doctrine of res ipsa loquitur is applicable, and the presumption of negligence arises. Barnes v. Danville St. Ry. Co., 235 Ill. 566.

Over the objection of appellant, the witness Annette Walls, called on behalf of appellee, was permitted to testify, that, between July 12, 1906, and January 1, 1907, appellee complained of having headaches. While the admission of this evidence would not work a reversal of the judgment, because it was merely cumulative, it was improperly admitted. It seems to be the settled rule in this State that declarations of pain and suffering are'competent only where made as part of the res gestae, or to a physician during treatment, or upon an examination prior to and without reference to an action for damages, unless the examination is made at the instance of the defendant, with a view to the trial. West Chicago St. Ry. Co. v. Carr, 170 Ill. 478; Greinke v. Chicago City Ry. Co., 234 Ill. 564; Shaughnessy v. Holt, 236 Ill. 487.

Addison S. Melvin, an osteopathic practitioner, called as a witness on behalf of appellee, testified that he treated her professionally from July 12, 1906, until the September following, and in answer to the question, “What condition did you find her in the first time you treated her after July 12, 1906?”, said: “The principal condition was one of extreme nervousness, but, of course, I only had her word for that.” It is insisted that appellant’s motion to strike out the answer of the witness was improperly overruled, because the statement to him by appellee, in substance, that she was extremely nervous, was not made to a physician during treatment; that an osteopath is not recognized as a physician by the members of that profession or their societies.

Statements made by an injured party to a physician, while under treatment by the latter, are admitted in evidence because such injured party will be presumed, under such circumstances, to truthfully state his physical condition, with the expectation of-being cured or benefited by the treatment. Greinke v. Chicago City Ry. Co., 234 Ill. 564; Shaughnessy v. Holt, 236 Ill. 487.

The word “Physician”, as used in the statement of the rule referred to, is employed in its generic sense, and is not limited to a practitioner of medicine in any particular school. Section 7 of the Act relating to Medicine and Surg'ery provides that any person shall be regarded as practicing medicine, within the meaning of the act, who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to or deformity of another. B. S. 1909, 1474.

Practitioners of osteopathy are licensed by the State to practice their profession, and the adherents of that system or school of treatment or practice are as much entitled to the presumption upon which the rule of evidence in question is predicated, as are the adherents of any other system or school. The reason for the rule remains the same. The trial court did not err in permitting the witness to testify as an expert.

It did not appear that appellee had read or had been informed of the contents of the written notice of her alleged injury, which notice her husband prepared and sent to appellant, and the same was properly excluded.

The first instruction given at the request of appellee is identical in form with the fifth instruction given for the appellee in U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, and there approved. It was applicable to the ease as bearing on the question of due care by appellee and also as to whether or not the car in the rear of the trailer car, in which appellee was riding, collided with said trailer car.

The third count of the declaration alleges that the trailer car and the car in the rear of said trailer car were both under the control of appellant and its servants, and the plea alone of not guilty did not put in issue, either that said cars were owned by the appellant or were operated by it or its servants. Chicago U. T. Co. v. Jerka, 227 Ill. 95. The fifth instruction tendered by appellee was not, therefore, improperly given to the jury.

By the seventh instruction given at the request of appellee the jury were informed that to enable them to estimate the damages alleged to have been sustained by appellee, it was not necessary that any witness should have expressed an opinion as to the amount of such damages, but they might make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the business affairs of life. If the instruction had been limited to damages for physical pain and suffering, the rule announced would have been correct, but the declaration also claimed damages as the result of the inability of appellee, by reason of her injuries, to pursue certain business in which she had been engaged, and for obligations incurred for medical services. The instruction was inaccurate and should have been refused as asked. Keokuk Bridge Co. v. Wetzel, 228 Ill. 253. The evidence relating to the extent of the injuries appellee claims to have sustained, by reason of the accident, is so close and conflicting, it cannot be said, as it was in the Wetzel case, that the giving of the instruction was harmless error.

The 8th instruction, given at the instance of appellee, is as follows:

“You are instructed that if you believe from the evidence in this case that either party has the means of producing proof bearing upon the issues of this case, and has not produced such evidence nor accounted, by-evidence in the case, for its non-production, such non-production of evidence raises an inference that such proof, if produced, would be unfavorable to the party who has the means of producing such evidence; and in case you believe from the evidence that there is evidence within the power of either party to produce which has not been produced nor accounted for by evidence in this case, you may take that fact into consideration in determining where the evidence preponderates.”

Appellant offered no evidence whatever relative to the facts and circumstances attending its alleged negligence, but contented itself with the insistence that the testimony of appellee was so inherently improbable as to wholly discredit her claim that she was injured as alleged in the declaration. In this state of the record the instruction was manifestly prejudicial to appellant and should have been refused. .The jury must have necessarily inferred from the instruction that appellee was to be considered as having in fact been injured as alleged in the declaration, and that the failure of appellant to introduce any countervailing evidence, was to be deemed as an admission by it that she was so injured. The correct doctrine applicable here is announced in Condon v. Schoenfeld, 214 Ill. 226, as follows:

“The appellee urges, upon the authority of Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Callaghan, 50 Ill. App. 676, Same v. Same, 157 Ill. 406, and other cases of like tenor, that weak evidence becomes strong against a party who has the means of contradicting the same, but fails to do so, and urges that as Condon failed to appear in person and testify, and failed to produce a witness to testify, that he was not the master, the evidence offered by appellee is thereby strengthened. We think there is no room for the application of this doctrine in this case for this reason: if the testimony offered tends to establish the averment in question, it needs no strengthening, as the defendant offered no evidence whatever. If, on the other hand, it does not tend to establish that averment, the defendant was under no obligation whatever to offer proof of any character. It was then his privilege to stand upon his plea, relying on the fact that the cause of action was not established by the evidence offered on the part of the plaintiff.”

In Gibbons v. Chapin, 147 Ill. App. 575, it was held to be error to refuse an instruction tendered by the defendants, as follows:

“You are instructed that the mere fact that the defendants, the William Adams Company and Chapin and Gore, have introduced no evidence by way of defense is not to raise a presumption in your mind of the guilt of said defendants, but the plaintiff is held to the same strictness of proof of the allegations of his declaration as if the defendants had introduced evidence.”

The 4th instruction tendered by appellant was in part covered by the 10th instruction given at its instance. The last clause of the instruction was, however, clearly erroneous, and the instruction was properly refused. The 5th instruction asked by appellant was properly refused, because there was no evidence to support it.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    Harriette A. Ingraham et al., Appellees, v. L. W. Mariner et al., Executors, et al., Appellants.
    Gen. No. 15,952.
    Appeals and errors—what not res judicata by former appeal. Held, that a decree entered in this case was in conformity with the rulings upon review and that mere expressions in opinions did not necessarily render res judicata a particular Question but that whether the Question has been rendered res judicata by a former opinion must be determined by an examination of the issues presented and determined.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judgé, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    Rehearing denied November 8, 1911.
    Scott, Bancroft & Stephens, for appellants.
    E. A. & W. K. Otis and David Fales, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The record in this case discloses that this is its fourth appearance in a court of review. It would serve no useful purpose to here recite the facts in detail, or to make a statement of all the proceedings heretofore had, and we refer to the following former opinions in the case for a complete understanding of the same and of the questions there involved. Ingraham v. Mariner, 194 Ill. 269; Mariner v. Ingraham, 127 Ill. App. 542; Same v. Same, 127 Ill. App. 550; Same v. Same, 230 Ill. 130.

In pursuance of the decree of March 22, 1905, reviewed in 127 Ill. App. 542 and 230 Ill. 130, the master, on October Í, 1908, sold the premises involved to Harriette A. Ingraham, Henry V. Freeman and John F. Gilchrist, executors and trustees under the last will and testament of Granville S. Ingraham, deceased, for $95,000 in cash, and said master’s report of said sale was approved October 30, 1908.

On November 20, 1908, the said executors and trustees, complainants below, moved the court to refer the cause to the master to take an account between said complainants and the defendants, Ephraim Mariner, J. Platt Underwood and John M. Gartside, of. the share or proportion, if any, which each of them is entitled to receive out of the proceeds of sale of the premises involved, and of the indebtedness due from either of said parties to the other with respect to the contract set up in the bill of complaint, and report the same, together with his findings thereon. To the allowance of said motion the defendants, Mariner and Underwood, interposed numerous specific objections, whereupon, on May 24, 1909, the chancellor entered a decree, as follows:

“This cause coming on to be heard this day on the motion of the complainant, filed herein on the 20th of November, 1908, and the objection of the said defendants, Mariner and Underwood, thereto.
“And it appearing to the court that there are no profits from the proceeds of sale of the land described in the Decree herein entered April 15, 1902, to be distributed to the complainants or to the said defendants, Ephraim Mariner, J. Platt Underwood and John M. Gartside, or either thereof, but that a loss has resulted from the sale of said land October 1, 1908, by Horatio L. Wait, Esq., Master in Chancery of this court, made herein, which sale was heretofore confirmed ;
“It is ordered that said objections be overruled and that this cause be referred to Thomas Taylor, Jr., Esq., one of the Masters in Chancery of this court, to take account between the complainants and the defendants, Ephraim Mariner, J. Platt Underwood and John M. Gartside, of the share or proportion which each of them is entitled to receive out of the proceeds of sale of the lands and premises in this cause; also of the indebtedness due from either of said parties complainant or defendant to the other, with respect to the contract set up and described in the bill of complaint in this cause.
“In taking said account, the said Master is hereby directed to proceed upon the basis that it has been found and decreed by the Court in this cause that the capital of the said joint enterprise consisted of $100,-000, of which Granville S. Ingraham, deceased, contributed $70,000, and Andrew J. Cooper contributed $30,000; that the complainants are the executors and trustees of the estate of said Granville S. Ingraham, now deceased, and have succeeded to his rights and liabilities; and that said Ephraim Mariner and J. Platt Underwood are the assignees, and have succeeded to the rights and incurred the obligations of said Andrew J. Cooper under the original contract set out in the bill and the decrees in this cause; and that the said losses arising from said joint enterprise should be borne pro rata in proportion to the amount contributed by each of said parties; and he is instructed to make his report in accordance with the instructions embraced in this decree.
“It is further ordered that the proceeds of sale remaining in the hands of said Master Wait be held until the coming in of said report, and the further order of the court herein. ’ ’

This appeal to reverse said decree is prosecuted by said Mariner and Underwood.

It is insisted that the decree here involved disturbs the rights of the parties as fixed by the former decrees; that is, that the chancellor in entering said decree re-litigated matters which had become res judicata by the judgments of the Appellate and Supreme Courts in the former appeals and upon writs of error, in two particulars, viz.: First, wherein it was held upon a consideration of the decree of July 6, 1900, that the $30,000 was not a contribution by Cooper to the capital of the joint enterprise created by the contract of January 2, 1889; and second, wherein it was held upon a consideration of the decrees entered April 15,1902, and March 22, 1905, that the appellants were entitled to be paid out of any proceeds of a sale of the premises, the amount of the $30,000 encumbrance held by them thereon.

While some expressions employed by the writers of the opinions reported in 194 Ill. 269 and 127 Ill. App. 542 and 550, afford a measure of support to the foregoing insistence of appellants, we are of opinion that a consideration of the findings and adjudications, embodied in the decrees then before the Supreme and Appellate Courts, do not sustain such insistence.

The decree of July 6, 1900, is, in part, as follows:

11 That by the terms of said contract it was the intention of the parties thereto that said Ingraham and said Cooper should enter into a joint enterprise in respect to the lands in question and above described, in which the land was valued at one hundred thousand ($100,000) dollars, for the purpose of capitalizing the same, that Ingraham’s interest therein should be seventy thousand ($70,000) dollars and that said Cooper’s interest therein upon the payment of said thirty thousand ($30,000) dollars unto said Ingraham should be the sum of thirty thousand dollars; that the land should be carried at the joint expense of the parties thereto until such time as both parties should agree upon an opportune time, which should be most advantageous to both parties, to sell the land; that Ingraham should furnish his note secured on the land as security for said thirty thousand ($30,000) dollars, but as between said Ingraham and said Cooper, he, the said Cooper, was to be liable for the payment of the money so borrowed, and that said Cooper should keep the interest on the loan paid under penalty of forfeiting his interest and that the principal of said loan might be carried until the sale of the land should be made when the principal of said thirty thousand ($30,000) dollars should be paid out of said Cooper’s share of the proceeds; that the expenses of carrying said land incident thereto could be paid by either party j that the expenses of carrying said loan of thirty thousand ($30,000) dollars should he borne by said Cooper or his assigns.
“The court further finds that upon the sale of said land and for the purpose of distribution there should be added to the principal of seventy thousand ($70,000) dollars so contributed by said Ingraham, and to the principal of said thirty thousand (30,000) dollars so contributed by said Cooper, all of the expenses incurred in the carrying of said land including taxes and special assessments and attorneys’ fees, and all other incidental expenses connected therewith, with interest thereon at the rate of six per cent, per annum and also interest at the rate of six per cent, per annum upon the seventy thousand (70,000) dollars of capital so contributed by said Ingraham down to the date of such sale and all interest paid upon said loan of thirty thousand (30,000) dollars by said Cooper and the said Mariner, Underwood and Q-artside until the same was taken up by said Mariner, Underwood and Cartside or one or more of them, and at the rate of six per cent, per annum thereafter down to the date of sale, all of which being added together should constitute the amount of the principal at the date of such sale.
“The court further finds that upon the sale, of the land and from the proceeds thereof, should be deducted the principal so constituted as above, including interest, taxes and incidental expenditures above referred to, and that the remainder thereof should be profits, and should be divided equally between the said Ingraham or his executors, administrators or assigns, and the said Cooper or his executors, administrators or assigns, and that after the distribution of the profits so ascertained, the said principal should be _ divided as follows, namely, That there should be paid unto said Ingraham, his executors, administrators or assigns, the sum of seventy thousand (70,000) dollars with interest thereon at the rate of six per cent, per annum down to the date of sale; also all taxes, assessments or expenditures of any description incurred in the carrying of said property, and so contributed by the said Ingraham, his executors, administrators or assigns, with interest thereon at the rate of six per cent, per annum down to the date of sale and that there should be paid unto the holder of the note for thirty thousand dollars so executed by said Ingraham, and if the same should be taken up by said Cooper, his executors, administrators or assigns, then there should be paid to the then owner out of the principal so constituted the sum of thirty thousand dollars together with all interest paid thereon by said Cooper or his assigns since the date thereof down to the time when it was taken up by said Mariner, Underwood or Cartside, and all accrued interest thereafter down to the date of sale, at six per cent, per annum, and also pay to them all taxes, special assessments or other incidental expenses connected with the carrying of said property with interest thereon at the rate of six per cent, per annum.
“That in case there should be no profits accruing out of said transaction, but should be a loss, then such loss should be borne pro rata according to the amount contributed by each of the parties.”

The decree then directs a sale of the premises upon the terms therein specified, and after providing for the payment of the costs and expenses of the sale out of the proceeds, proceeds as follows:

“That the remainder of said proceeds he shall retain in his hands or pay to and turn over to the registry of this court as may be hereafter directed, and thereupon an account shall be taken under the order and direction of this court in accordance with the principles herein announced as to the respective rights of the parties hereto.
“And it is further ordered, adjudged and decreed that in case there should be no profits realized out of said enterprise, and in case there should not be sufficient to repay the capital, interest and expenditures aforesaid to the respective parties as herein announced, then each of the parties shall bear his pro rata share of losses incurred according to the contribution made by each. ’ ’

Upon the appeal of the present appellees from this decree to the Supreme Court, said decree was affirmed in all respects, except so far as it allowed the interest paid by Cooper and his assignees upon the $30,000 to be deducted from the proceeds of the sale, and in that respect the decree was reversed and the cause remanded to the Circuit Court with directions to so change and modify its decree. Ingraham v. Mariner, 194 Ill. 269.

In the course of the opinion, it was said:

“In order to determine the amount of the profits, which are to'be divided between these parties, there should be deducted from the proceeds of the sale, first, the principal of the mortgage amounting to $30,000.00, and the current interest due thereon between the date of the maturity of the last installment of interest and the date of sale; second, $70,000.00, balance of the capital stock, and interest at six per cent, thereon from the date of the contract to the date of the sale; third, taxes and expenses paid by Ingraham, and interest at six per cent, thereon from the time of payment up to the day of sale; fourth, taxes and expenses, if any, paid by Cooper or his assignees, and interest thereon at six per cent, from the time of payment up to the date of sale. After deducting these amounts, the remainder will be the profits which are to be divided between the parties. The deductions so to be made, in order to reach the amount of the profits, are to be distributed as follows: to the holders of the note and mortgage, $30,000.00 and interest thereon since the maturity of the last installment of interest; to the estate of Ingraham, $70,000.00 and six per cent, interest thereon up to the date of sale; also to said estate the taxes and expenses paid by Ingraham or his representative and interest thereon up to the date of sale; and to the appellees, such taxes and expenses, with interest at six per cent., as they have paid out.”

Upon the remandment of the cause to the Circuit Court, a decreé was entered April 15, 1902, wherein appears precisely the same finding and adjudication, relative to the respective rights and interests of In-graham and Cooper, under the contract, in the joint, enterprise, as in the decree of July 6, 1900. In lieu of the direction in the latter decree for the payment of interest on the $30,000, out of the proceeds of a sale of the premises, in which respect only said decree was reversed, the decree of April 15, 1902, contains the following:

“And the Court further finds that it is provided in the trust deed securing said indebtedness of thirty thousand (30,000) dollars and in the several agreements for the extension of the payment thereof, that said thirty thousand ($30,000) dollars should bear interest at the rate of six per cent per annum, payable on the 2nd days of January and July in every year, until said principal sum is fully paid; and that the said complainants, Henry V. Freeman, Hariette A. Ingraham and John F. Gilchrist, and the said defendants, Ephraim Mariner, J. Platt Underwood and John M. Gartside, did covenant and agree with Darius N. Avery, then the holder of said indebtedness, that until said note of thirty thousand (30,000) dollars was fully paid, they would punctually pay the interest due and to become due thereon at the time and at the rate aforesaid.
“The court further finds that neither the said Andrew J. Cooper, nor the said Ephraim Mariner, J. Platt Underwood and John M. Gartside, his assignees, are entitled to be repaid the interest paid by them or either of them on said note secured by trust deed of thirty thousand (30,000) dollars, or any part thereof, out of the proceeds of sale of said lands and premises, or otherwise; and that the purchase of said note for thirty thousand (30,000) dollars by said Ephraim Mariner and J. Platt Underwood, so that they were not obliged to pay interest thereon to a third party, did not change or make any difference in the rights of the complainants in the original bill to have the proceeds of the sale of said lands protected from any deduction on account of such interest.
“And the Court further finds that upon the sale of the said land, and from the proceeds thereof, there shall be paid,—
First: To Ephraim Mariner and J. Platt Underwood or the holders thereof, the principal of said note secured by said mortgage, amounting to thirty thousand (30,000) dollars, and the current interest only accruing thereon, but not due, from the 2nd day of January or of July, as the case may be, next preceding the date of the sale of the lands.
“Second: That there shall be paid unto the said complainants in the original bill, as executors and trustees of the estate of said Granville S. Ingraham the sum of seventy thousand (70,000) dollars with interest thereon at the rate of six per cent, per annum from the 2nd day of January, 1889, down to the date of such sale.
“'Third: That there shall be paid to the said complainants in the original bill as executors and trustees as aforesaid, all taxes, special assessments and expenses of any description which have been paid by the said Granville S. Ingraham in his lifetime, or by the said complainants as executors and trustees of his estate, since his death in respect to said lands and premises and in carrying the same, since said 2nd day of January, 1889, with interest at the rate of six per cent, per annum upon the several amounts paid as aforesaid, from the time of payment thereof up to the date of sale.
“Fourth: That there shall be paid to the said Ephraim Mariner, J. Platt Underwood and John M. Gartside, as the assignees of said Andrew J. Cooper, all taxes, special assessments or expenses of any description paid or incurred by them in respect to said lands and in carrying the same since the 2nd day of January, 1889, the date of said contract, with interest upon each of said payments at the rate of six per cent, per annum from the date thereof up to the date of sale.
“The Court further finds that the balance of said proceeds of sale constitute the profits named in said contract and are to be divided equally, and one-half thereof shall he paid to the said complainants in the original bill as the executors and trustees of said Granville S. Ingraham and the other half shall be paid to the said defendants Ephraim Mariner, J. Platt Underwood and John M. Gartside.”

Said decree also contains the direction:

“That in case there should be no profits accruing out of said transaction, but should be a loss, then such loss should be borne pro rata according to the amount contributed by each of the parties.”

By the latter decree the master was directed to make no sale thereunder, until the further order of the court.

On March 22, 1905, a decree was entered directing an immediate sale of the premises, which decree also modified the terms and conditions of such sale, as theretofore determined, as follows:

“It is further ordered by the court that in the event the respondents, Ephraim Mariner and J. Platt Underwood, who are the owners of the $30,000 encumbrance on said lands and premises, should become the purchaser at said sale they shall not be required to pay over to the said master at such sale the amount of the said encumbrance and that the said master be and he is hereby directed to accept from the said Ephraim Mariner and J. Platt Underwood their receipt for the said sum of $30,000 as part of the cash or deferred payments required to be made under the terms of said decree at a sale thereof.
“And in like manner the court further orders and decrees that in the event that the petitioners in this cause shall themselves become purchasers of said lands at such sale they shall not be required to pay to the said master a larger amount in cash than the amount of said $30,000 encumbrance on said lands held by the said respondents, Mariner and Underwood, and the costs of said sale; and the said master is hereby directed to receive and accept from the said petitioners in ease they shall become the purchasers at said sale, their receipt for the amount which may be due and owing to them under the terms of said final decree or so much thereof as may be necessary, as part of the payment of the purchase money of said lands at such sale for said lands and premises. And in such event the said master is directed to pay over the amount of said $30,000 encumbrance to said Mariner and Underwood upon the confirmation of said sale and execution and delivery by them of a release and satisfaction of the same.”

From this decree the present appellants prosecuted an appeal to the Appellate Court of the First District, where, at the October term, 1905, upon a consideration of said decree, the same was affirmed. 127 Ill. App. 542. Appellants also, at the same term, prosecuted their writ of error from said court to review the decree of April 15,1902, which decree was also affirmed. 127 Ill. App. 550.

From the judgment of said Appellate Court, affirming the decree of March 22,1905, appellants prosecuted their appeal to the Supreme Court, and also prosecuted their writ of error from said court to review the judgment of the Appellate Court, affirming the decree of April 15, 1902. The causes were consolidated in the Supreme Court, and upon a consideration thereof, the judgments of the Appellate Court were affirmed. 230 Ill. 130.

In the course of the opinion it was there said:

“It is alleged that the decree of April 15, 1902, is erroneous in prescribing the order of payment in making distribution; that the provision that the parties should bear any loss pro rata, and the order allowing appellees to become purchasers at the sale, are also erroneous. A comparison of the decree of April 15, 1902, with that of July 6, 1900, shows that they are in all essential particulars identical except as to the provision concerning the payment of interest on the $30,000, which was modified in accordance with the mandate of this court. In prescribing the manner of distribution the decree follows the views expressed in Ingraham v. Mariner, supra, using the language of this court in substance. The expressions, ‘first,’ ‘second,’ ‘third’ and ‘fourth’ at the beginning of the distribution clauses in the decree are mere enumerations of payments to be made, and are not intended to give priority to any claim. The decree contemplates that all the items enumerated shall be paid in full if the proceeds of the sale shall afford sufficient funds, otherwise the losses shall be borne pro rata. The court committed no error in this particular.”

In view of the fact that the decrees entered July 6, 1900, and April 15, 1902, each contains a finding and adjudication construing the contract in question as establishing a joint enterprise with a capital of $100,000, wherein the interest of Ingraham should be $70,000 and the interest of Cooper should be $30,000, upon the payment by him of said sum to Ingraham; that as between Ingraham and Cooper the latter was to be liable for the payment of the money borrowed; that for the purposes of distribution of the proceeds of a sale of the land there should be added to the principal of $70,000, “so contributed by said Ingraham,” and to the principal of $30,000, “so contributed by said Cooper,” all of the expenses, etc.; that in case there should be no profits accruing out of said transaction, but should be a loss, then such loss should be borne pro rata according to the amount contributed by each of the parties; and in view of the further fact that such findings and adjudications have been wholly affirmed by the Supreme Court, it must be held that the questions are res judicata.

True, the decree of March 22, 1905, provides that, if the appellants should become the purchasers of the premises at the sale therein ordered, they should not be required to pay to the master the amount of the encumbrance of $30,000 held by them, and the master was therein directed to accept from them their receipt for said amount as part of the purchase money; and also provides that if appellees should become the purchasers they should not be required to pay to the master a larger amount in cash than $30,000, the encumbrance on said land held by appellants, together with the costs of sale, and the master was directed to accept from appellees their receipt for the amount which may be due and owing to them as part of the purchase money, and to pay to appellants the amount of their encumbrance upon the confirmation of the sale and execution and delivery by them of a release and satisfaction thereof; but such provisions and directions are not necessarily inconsistent with and exclusive of the provisions and directions contained in the prior decrees of July 6, 1900, and April 15, 1902. The decree of March 22, 1905, does not assume to construe the rights and interests of the parties under the contract, or to determine the extent of the liability of the parties, in the event that a loss should accrue out of the transaction. Those functions were fully performed by the prior decrees, and all the findings and adjudications in the several decrees involved, in so far as they have been considered and sustained by the court of last resort, must be harmonized, if possible. It is apparent that the decree of March 22, 1905, was predicated upon the assumption that a sale of the premises would realize an amount sufficient to pay all the claims in full, otherwise, its provisions are inconsistent with those contained in the prior decrees.

The instant decree was entered after it became apparent from the master’s report of sale that a large loss would accrue out of the transaction, and it therefore became necessary to provide for the apportionment of such loss between the parties in interest.

As heretofore observed, the decrees of 1900 and 1902 provide that the loss, if any, shall be borne pro rata, according to the amount contributed by each of the parties, and in Mariner v. Ingraham, 230 Ill. 130, it was said:

“The decree contemplates that all the items enumerated shall be paid in full, if the proceeds of the sale shall afford sufficient funds, otherwise the losses shall be borne pro rata.”

How is the pro rata in question to be ascertained? Obviously, unless force and effect be given to the findings in the decrees that Ingraham “contributed” $70,000 and Cooper “contributed” $30,000 to the joint enterprise, there is no basis for determining the pro rata. No other measure, whereby the liability of each of the parties to share in the losses, exists in or is ascertainable from the record.

Each of the decrees of 1900 and 1902 contains a finding to the effect that, prior to the death of In-graham, Cooper sold and transferred all his interest in and to the contract to Mariner, Underwood and Grartside; that they continue to hold such interest and are entitled to all the right and interest which Cooper would have been entitled to had he made no assignment. As between Ingraham and Cooper, the latter was liable, under the contract for the payment of the $30,000 encumbrance, and as we understand it, such liability of Cooper induced the finding in the decrees of 1900 and 1902 that he had “contributed” $30,000 to the joint enterprise. It does not appear that the assignees of Cooper under the contract did not assume his liabilities, when they acquired his rights and interests therein. In Mariner v. Ingraham, 230 Ill. 130, it was said: “On June 12, 1901, Cooper transferred his interest in the aforesaid contract to Ephraim Mariner and J. Platt Underwood, appellants herein, who thereby succeeded to his rights and incurred his obligations under the original contract.”

Upon the record, as made, we perceive no error in the decree of May 24, 1909, and the same will be affirmed.

Decree affirmed.


author: Mr. Justice Duncan

text:
    Nettie F. McCormick, Defendant in Error, v. Fred S. Loomis, Plaintiff in Error.
    Gen. No. 15,773.
    1. Statute of Frauds—when lease not within. A lease signed by a tenant running for a period in excess of one year is enforceable by the landlord though not signed by her in person but executed in her behalf by an agent having no written authority if such lease has been accepted by the landlord though not in writing.
    2. Judgment—when, entered 6y confession, should he opened. On an application by a defendant to open a judgment by confession and to permit him to defend, if the evidence of the defendant shows, or tends to show, that he has a good defense to the whole or to any substantial part of the plaintiff’s claim, and that a question is presented which should be submitted to a jury, the court.should set aside the judgment and permit the defense to be made.
    3. Judgment—when counter-affidavits improper upon motion to open. On a motion to open a judgment the court may admit counter-affidavits in evidence in some instances where the question involved is a question for the court purely, but it is improper to do so where the merits of the case only are involved as the court cannot try the issues in that manner.
    Judgment by confession. Error to the Municipal Court of Chicago; the Hon. John H. T. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed October 25, 1911.
    Statement by the Court. Judgment by confession was entered in the Municipal Court in favor of defendant in error against the plaintiff in error in the sum of $542.50, on a warrant of attorney in a lease. Three days later, June 21,1909, plaintiff in error made a motion in open court to vacate the judgment or to have the same opened up to allow him to make defense to the suit of the defendant in error. The motion was heard on oral evidence and arguments, and it was . by the court denied. The cause is now before this court on writ of error to review the order of the lower court in denying said motion.
    The evidence heard on said motion discloses that the said judgment was rendered for an alleged balance of rent due defendant in error on a written lease by her to plaintiff in error of rooms 423 and 425 in Reaper Block in the city of Chicago, as law offices, for the period of two years from May 1,1907; that said plaintiff in error executed said lease and entered into the possession of said premises May 1,1907, and continued in possession thereof, and paid the rent to her, until July 21, 1908, when he left said premises and never returned to the same; that he did not assume further control of the premises and did not pay the remainder of said, rent; that the said lease was signed by the defendant in error by John. A. Chapman, her agent, who had no written authority from her to sign the same. The evidence of plaintiff in error further tends to show that defendant in error had opportunities to rent the premises after plaintiff in error had left them, and thereby to lessen her claim for damages against him, and that she refused to so rent them, although he requested her to do so.
    Arnold D. McMahon, for plaintiff in error.
    E. C. Westwood, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiff in error argues that his evidence disclosed a complete defense at law to the whole of defendant in error’s suit, because the contract or lease sued on does hot bind him under the Statute of Frauds. The reasoning advanced for this claim is, that said contract or leasing is for more than one year and, to be binding under the Statute of Frauds upon either party thereto, it should have been signed by both parties; that the signing of said contract by the defendant in error by her agent was not binding on her, because her agent had no written authority from her to sign said lease, and, therefore, it was not binding upon plaintiff in error. We think that the acceptance of this contract and the collecting of rent thereon by the defendant in error, although the acceptance was not in writing, was sufficient to bind the plaintiff in error, the contract having been duly executed by him before such acceptance.

It is now Well settled by the weight of authority that the Statute of Frauds is satisfied if the contract for the sale of land for a longer term than one year, or the memorandum or note thereof, be signed by the party alone who is sought to be charged whether he be vendor or vendee. By such authority the Statute of Frauds is treated as furnishing a rule of evidence. That is to say, a party who is seeking to enforce such a contract against another must furnish the proof that the contract or memorandum thereof is in writing and signed by the other party, provided the Statute of Frauds is invoked as a defense to such contract. The want of mutuality in the contract is no objection to the enforcement of it. The Supreme Court of this State has frequently ruled on this question. The latest case, perhaps, is the case of Ullsperger v. Meyer, 217 Ill. 262, in which is cited a large number of other cases and authorities on the same question.

Where the Statute of Frauds is not involved, the law is, that where a party accepts and adopts a written contract, even though it is not sighed by him, he shall ■be deemed to have assented to its terms and conditions and to be bound by them. Forthman v. Deters, 206 Ill. 159; Memory v. Niepert, 131 Ill. 623; Ames v. Moir, 130 Ill. 582; Fields v. Brown, 90 Ill. App. 195; and Bowman v. Powell, 127 Ill. App. 114.

The defendant in error could only recover the rent agreed to be paid by plaintiff in error, less whatever she could have realized out of thé premises as rents by the use of due diligence after they came into her possession. As there was evidence tending to support the claim of the plaintiff in error that the defendant in error failed to avail herself of the opportunities to lessen her damages by renting to others, the court should have opened up the judgment to allow this defense. Plaintiff in error recovered the full balance of the unpaid rents for the term of the lease with attorney fees, and the evidence on the motion to open up the judgment tends to show that the damages recovered in this case are in excess of the damages she was legally entitled to recover. On an application by a defendant to open a judgment by confession and to permit him to defend, if the evidence of the defendant shows, or tends to show, that he has a good defense to the whole or to any substantial part of the plaintiff’s claim, and that a question is presented which should be submitted to a jury, the court should set aside the judgment and permit the defense to be made. Resser v. Corwin, 72 Ill. App. 625; Pitts v. Magie, 24 Ill. 610; Birtman Co. v. Thompson, 136 Ill. App. 621.

The court also erred in admitting counter evidence on the merits for defendant in error. On a motion to open a judgment the court may admit counter affidavits or evidence in some instances where the question involved is a question for the court, purely; but it is improper to do so where the merits of the case only are involved, as the court cannot try the issues in that manner. This is particularly true where the issues are such that the right of trial by jury is involved. Dionne v. Matzenbaugh, 49 Ill. App. 527; The Gilchrist Trans. Co. v. The Northern Grain Co., 204 Ill. 510.

It will not be necessary to pass on the question of variance raised by plaintiff in error, as it may not arise in the further proceedings in the case. Neither is it necessary to comment upon the question whether or not the defendant in error consented to, or accepted, the surrender of the premises by the plaintiff in error, as he may hereafter avail himself of the right of any legal defense he desires to make.

For the errors indicated, the judgment of the court in refusing to open the confessed judgment is reversed, and the cause is remanded with directions to open said confessed judgment, and to permit plaintiff in error to make Ms defense to the suit of the defendant in error.

jReversed cmd remanded with directions.


text:
    James A. Brown, Appellant, v. Ferdinand Ebann, Appellee.
    Gen. No. 15,835.
    1. Chancery—jurisdiction to grant new trials at law, A court of equity has the power to vacate judgments of courts of law and to grant new trials therein in cases wherein such judgments have resulted by mistake, fraud or accident, unmixed with negligence or fault on the part of the defendant.
    2. Decbees—when not subject to collateral attach. If the court has jurisdiction of the parties and of the subject-matter, a decree setting aside a judgment at law and granting a new trial cannot be attacked as erroneous when presented to the court of law for the purpose of being carried out.
    3. Judgments—when may be set aside after lapse of term. If by decree in chancery a judgment at law be ordered set aside and a new trial awarded, a court of law has jurisdiction after the lapse of the judgment term to set aside the judgment in question, re-docket the case and subsequently (the facts justifying) to dismiss the action for want of prosecution.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 25, 1911.
    Statement by the Court. Judgment in assumpsit was rendered in a jury trial in the County Court, December 20, 1907, in favor of appellant and against appellee for $376.50. Execution was issued January 13, 1908, and was returned nulla bona. Alias execution was issued February 6,1909, and was levied on certain real estate. On February 20, 1909, the court entered an order to re-docket the cause, and to quash the alias execution, and to set aside the said verdict and judgment, and granted a new trial in said cause. On April 23, 1909, the cause having again been called for trial in the County Court, on motion of appellee the cause was by the court dismissed for want of prosecution. Appellant preserved proper exceptions to the orders and judgments of the court made February 20, 1909, and April 23, 1909, and has appealed therefrom to this court.
    The record shows that the said orders and judgments of the court from which this appeal was taken, were entered by the court on motions of appellee. The evidence offered in support of said motions is a certified copy of a decree of the Superior Court of Cook county in a certain cause in said latter court, wherein said Ebann was complainant and said Brown and Strassheim, sheriff, were defendants, which decree is, in substance, as follows: That the said verdict of the jury and the said judgment of the County Court entered therein December 20, 1907, be and the same are hereby vacated and set aside; that a new trial be granted in said County Court suit, and that the parties thereto have leave to proceed in said cause as though no trial or judgment was had or entered therein.
    A. W. Martin and Edward H. S. Martin, for appellant.
    No appearance for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellant insisted before the lower court, and now insists in this court, that it was error to admit in evidence the decree in chancery of the Superior Court of Cook county, because that court had no power or jurisdiction to enter such a decree. It clearly appears from the record that the Superior Court had jurisdiction of the parties in the chancery suit, and appellant does not contend otherwise. The Superior Court in its said decree made the findings that appellant, at divers times between the bringing of said suit at law and the date said judgment at law was entered, represented to appellee that he, Brown, had no claim against appellee growing out of the subject-matter of that suit; that appellee need not go to the expense of defending the same, as he, appellant, intended to dismiss the same, and would not appear and testify therein; that appellant in violation of said promise or representation did appear and testify in the law court and thereby fraudulently obtained said judgment, and that appellee was not negligent in allowing said judgment to be entered, and that he had a valid defense to said suit.

It is now a well established rule that a court of equity does have the power to vacate judgments of courts at law, and to grant new trials therein, in cases wherein such judgments have resulted by mistake, fraud or accident, unmixed with negligence or fault on the part of the defendant. This jurisdiction of courts of equity was formerly resisted and not recognized by courts of law, but the power is now conceded in cases of the above character, which commend themselves strongly to equitable relief. Seward v. Cease, 50 Ill. 228; Holmes v. Stateler, 57 Ill. 209; Wilday v. McConnel, Exr., 63 Ill. 278; 11 Ency. of Pl. & Pr., 1172, 1173; and Vol. 7 thereof, p. 799.

The findings of the Superior Court certainly constitute very strong grounds for the relief granted in its decree; and unless reversed on appeal or writ of error, or otherwise set aside, the decree was binding on the County Court, and is binding on this court. The Superior Court, having jurisdiction of the parties and of the subject-matter of the suit, it cannot be successfully attacked collaterally. It is true that, after the term had elapsed at which the judgment was obtained in the County Court, that court was without power to vacate the judgment, or in any way to modify the same, except in matters of form or mere clerical error. As a matter of fact, the judgment was not vacated by the County Court’s order. It was vacated by the order of the Superior Court. The mere fact that the County Court’s order purported to vacate the judgment is of no consequence in this appeal. The case of Hayes v. Wagner, 220 Ill. 256, is not opposed to the authorities above cited. The court, in substance, there holds that relief against such judgments may be obtained by appeal or writ of error, if the error is apparent on the face of the record; and, if not, by bill to impeach it for fraud or other similar cause. The County Court, by virtue of the order of the Superior Court, did have the power and the authority to have the cause re-docketed and to give a new trial. It also had the right to dismiss the cause for want of prosecution, and no error in that particular appears in this record. The appeal from the County Court’s order in vacating the judgment can have no effect on the validity of the order made by the Superior Court in that regard.

Finding no reversible error in this record, the judgment of the County Court is affirmed.

Judgment affirmed.


text:
    Theresa G. Gore, Administratrix, Defendant in Error, v. Charles Henrotin, Receiver of Chicago Electric Traction Company, Plaintiff in Error.
    Gen. No. 15,895.
    1. REKBASE-^eFec# of, to one joint tort-feasor. A release to one of several joint tort-feasors is a release to all, and an accord and satisfaction with, one of them is a bar to an action against the others.
    2. Contracts—when parol evidence competent to vary. The rule that parol evidence is incompetent to vary the terms of a written contract does not apply as against one not a party to the contract in question or privy thereto; in this case, held, that where a contract was on its face one apparently containing a covenant not to sue one joint tort-feasor, that it was competent for another joint tort-feasor to show that such contract was actually one of release.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1911.
    Statement by the Court. This writ of error was sued out to reverse a judgment of $2,800 in favor of defendant in error and against plaintiff in error, for wrongfully causing the death of her husband, George E. Gore. At the time he was killed Gore was a passenger on the car of defendant, which car was run into by a train of the Grand Trunk Western Railway Company. The evidence of the defendant in error clearly proved that the car of plaintiff in error was negligently driven on to the railroad tracks of said railway company in front of a fast moving train, and that the train could have been easily seen approaching for one mile or more, had the conductor or motorman looked up the tracks, there being no obstructions to their views.
    The declaration of seven counts charged, in substance, that the plaintiff in error and the Grand Trunk Western Railway Company owned and operated respectively a street car line and a railroad which cross each other at Western avenue in the Town of Thornton; that the deceased was riding as a passenger at the time of his injury upon a street car operated by the plaintiff in error, and that, while Gore was exercising due care for his safety, the plaintiff in error so negligently ran and operated said street car that it collided with a train of cars running on the Grand Trunk Western Railway (also a defendant in said suit), and as a result thereof said George E. Gore was thrown from said street car and killed.
    On stipulation of defendant in error and Grand Trunk Western Railway Company, the suit was dismissed as to the latter. The only defense sought to be made by plaintiff in error in the lower court was that the defendant in error had by contract released the defendant, Grand Trunk Western Railway Company, and, as a legal result thereof, the plaintiff in error was released and discharged.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    Edward J. Green and Charles C. Spencer, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

The principal error insisted on by plaintiff in error as a ground of reversing the judgment of the lower court, is the refusal of the court to permit bim to prove by the defendant in error, Mrs. Gore, whom he called as a witness, the conversations and transactions of herself and the Grand Trunk Western Railway Company leading up to the contracts that resulted in the dismissal of the suit as to that Company. He insists that he had a right to prove by her, if he could do so, that she had accepted $2,800 of the said railway company, or had agreed to do so, in full settlement of her claim for damages against it, and had released that company of all claims against it, although the agreements of herself and said company purported to be in writing. In other words, he claims that, as he is neither party nor privy to said contracts, he had a right to introduce oral evidence to prove that the actual contracts were different from the written contracts, or that they did not contain all the contracts made between the parties, and that the railway company was released by her, if such were the facts. The law is well settled that a release to one of several joint tort feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the others. C. & A. Ry. Co. v. Averill, 127 Ill. App. 275, affirmed in 224 Ill. 516; City of Chicago v. Babcock, 143 Ill. 358.

Both of the cases above cited are cases in which joint tort feasors were sued, and a written contract with a covenant not to sue was signed by each plaintiff respectively and delivered to one of the joint tort feasors. Oral evidence was introduced in each case by the other parties to the suit to prove what the actual contracts were, notwithstanding the contracts between the parties thereto were in writing. But the question of the admissibility of such evidence was not raised in either case. The exact question involved here was raised in .the case of O’Shea v. New York C. & St. L. R. R. Co., 105 Fed. 559; and it was held in that case that either the plaintiff or the contesting defendant may contradict the written contract by parol evidence. We think that the O’Shea case states the correct rule of law, and that there is no such privity between joint tort feasors because both are sued in the same suit or both liable for the same injury, as to conclude the defendant who is not a party to the contract, or the plaintiff, by the express terms of the written Contract,, and that either plaintiff or such defendant may contradict it by parol evidence.

The general rule is that parol evidence cannot be introduced to vary or contradict the express terms of a written contract in suits between the parties to the instrument. “It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.” 1 Greenleaf on Ev., sec. 279; The W. & M. Mfg. Co. v. The C. G. W. F. Co., 109 Ill. 71.

In the cases of McMaster v. Pres., etc., Ins. Co. of N. Am., 55 N. Y. (10 Sickels) 222, and Lowell Mfg. Co. v. Safeguard F. Ins. Co., 88 N. Y (43 Sickels) 591, it is held that this rule is applicable in determining the question of whether or not other insurance policies covered the property damaged and were liable to contribute to the loss.

One of the written contracts in question was introduced in evidence and signed by the defendant in error, and provides as follows:

“In consideration of the payment of the sum of Twenty-eight Hundred Dollars by the Grand Trunk Western Railway Company, it is hereby agreed that no action shall be begun against the said Grand Trunk Western Railway Company by reason of any matters existing at this date, by the undersigned.
“It is expressly agreed and understood that this contract shall not be held or constituted to be a release of any damages or right of action arising to the undersigned by reason of any matters at this date existing. Chicago, March 1, 1909.”
The other written contract was dated March 3,1909, and provides thus:
“It is hereby agreed by and between the attorneys for the plaintiff and for the defendant, Grand Trunk Western - Railway Company, that the above entitled cause (this suit) may be dismissed as to the Grand Trunk Western Railway Company without costs.”

It is clear that the written contracts did not constitute a release as to the railway company. The legal effect of them was simply a covenant not to sue and to dismiss the suit then pending as to the railway company. Neither could they have the effect to release or discharge the plaintiff in errori. C. & A. Ry. Co. v. Averill, 224 Ill. 516. There was no evidence introduced showing or tending to show a release by defendant in error to either party defendant in the suit below, and no evidence showing or tending to show an accord and satisfaction. It was not error for the court, therefore, to refuse to give plaintiff in error’s instructions bearing on those questions. The plaintiff in error, however, was not bound by the written contracts; and under the law had a right to prove, if he could do so, that the written contracts did not express the contracts actually made, or that they did not express all of the contracts made by the defendant in error and the railway company.

The court denied the plaintiff in error. that right, holding that the writings were the best evidence of the contracts, and in doing so committed reversible error. It is true that some of the questions were objected to as calling for mere conclusions of the witness as to whether or not she had released and discharged the railway company, and that those objections were properly sustained for that reason. However, proper questions bearing on those propositions were asked by plaintiff in error’s counsel, and were specifically objected to by opposite counsel, because the contracts were in writing and the best evidence, and were sustained by the court on that ground, the plaintiff in error protesting that he was not bound thereby and had a right to show that the actual contract was different from the writings. The following' are a few of those questions that the court would not allow to be answered on objections by defendant in error’s counsel, to wit:

Q. “What, if any, transaction have you had with the Grand Trunk Western Railway Company with-reference to a settlement of this claim involved in this suit?”
“Did you have any talk with the Grand Trunk Western Railway Company, its officers or agents, with reference to the payment by it to you of the sum of $2,800?”
“Did you have any talk with them or either of them with reference to a settlement and release of the Grand Trunk Western Railway Company?”

It is argued that plaintiff in error’s counsel did not offer to prove any specific fact by the witness, or tell the court what he expected to prove by the witness; and that, therefore, this court cannot tell whether or not harmful error has been committed by the court in its rulings, as we cannot tell what plaintiff in error expected to prove. We think it clearly appears from the examination of the witness, and the statements of court and counsel, that the object of the evidence and the character of evidence sought to be elicited was well understood by the court, and that the court’s ruling was also clearly understood to be that he would allow no evidence tending to show that the written contracts did not speak the truth and the whole truth. The court closed the examination by saying to counsel for plaintiff in error: “I think you have covered every possible feature of the case. There is no use of trying to conjure up questions. The questions have been passed upon.” And the reason given by the court for Ms rulings was that the written contracts were the best evidence, etc.

It is also argued by defendant in error that the witness testified that her contract was in writing, and that it was the only contract she made. She did not so testify. She merely testified that her contract was in writing and identified it. She did not say it was the only contract she made with the railway company, and that it expressed the whole contract. She also testified that she had no understanding by which she was to receive any further sum than the $2,800. This was not enough. All the -facts should have been allowed in evidence, so that it might have appeared thereby whether or not there was any other contract made by her with the railway company.

The defendant in error could only recover the actual damages sustained by her, less the damages paid to her by the railway company. It is, therefore, not error for defendant in error to introduce the written contract with the railway company, if limited for the sole purpose of proving the amount of her damages received by her, provided it be properly guarded by instructions in case there should be a conflict in the evidence bearing on her right to recover in the suit. There was no such conflict in the court below, and, therefore, plaintiff in error under that condition of the evidence could not be prejudiced by the introduction of the written contract.

For the error indicated, the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Martin Madson, Appellee, v. James W. Clark, Appellant.
    Gen. No. 15,924.
    1. Chancery—what essential to jurisdiction to grant rescission of contract. “In order for the court to grant relief by way of rescission, the case presented must embrace facts bringing it within some recognized head of equity jurisdiction, such as fraud, accident, mistake, duress, undue influence, or the like; or it must at least be shown that the complainant, if denied equitable relief, will sustain an injury for the redress of which a court of common law can afford no adequate remedy."
    2. Chancery—when relief by way of rescission of contract not granted. Rescission in equity will not be awarded if it is not possible to place the parties in statu quo.

    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed October 25, 1911.
    Statement by the Court. Appellee brought this suit in chancery in the Superior Court, May 27, 1908, against appellant and the Madson-Steele' Company, a corporation, for the rescission and cancellation of a contract between appellee and appellant, bearing date March 4, 1908. The bill charges, in substance, that in February, 1908, and for many years prior thereto, The Madson-Steele Company engaged in the sale of jewelry at wholesale and retail on the mail-order plan, and had about 10,000 customers; that it was then in an embarrassed condition financially and had requested its creditors to extend their indebtedness for another year, and was refused; that it was later thrown into bankruptcy proceedings and a receiver appointed thereunder, who took charge of the business ; that appellee and appellant, Clark, entered into an agreement that Clark should buy in the stock of merchandise of said corporation at said receiver’s sale, and would then use the same in continuing business under-the name of The Madson-Steele Company; and that said contract was partly reduced to writing, the written portion of which provides as follows:
    “The said James W. Clark hereby agrees to employ the said Martin Madson for a period of two months, commencing March 10, 1908, and ending May 10, 1908’ and pay to said Martin Madson fifty dollars ($50) per week during said time, for which consideration the said Martin Madson agrees to give his sole time, attention and best efforts in the interests of the said James "W. Clark by influencing- customers and former customers of The Madson-Steele Company, a corporation, to trade with the said James W. Clark, Moore & Evans, F. E. Morse & Co., or The Madson-Steele Company, if the said Clark acquired the business of The MadsonSteele Company, now in bankruptcy, or either of said companies as the said Clark may direct.

      “It is further agreed that the said Martin Madson will continue to give his sole time, attention and best efforts to the interests of the said James W. Clark in consideration of ten per cent. (10%) commission on all new business (where sales are made) brought in by the said Martin Madson up to January 1, 1909, and that thereafter the said Martin Madson shall continne said services for the said Clark on the same conditions and basis of compensation as to commissions so long as said Martin Madson and James W. Clark are mutually satisfied.
    “Dated the 4th day of March, 1908.
    (Signed) Jambs W. Clark.
    Martin Madson.”
    The bill further charges that said contract was partly verbal and partly in the writing above quoted, and that as part and parcel of said contract appellee delivered to appellant all the certificates of stock of said corporation, the resignations of all the officers and directors thereof, the fist of its mail-order customers, and transferred to .appellant in writing the lease to the premises in the Masonic Temple occupied by said company; that on March 23, 1908, all of said company’s tangible assets were duly sold to said appellant; that immediately after signing said contract appellee began his work of sending out letters, circulars, etc., to hold the trade until the stock of merchandise should be acquired by appellant; that appellee performed his duties in pursuance of the said agreement from March 10, 1908, until May 10, 1908, and was paid therefor the sum of fifty dollars per week by appellant; that on said last date appellant summarily dismissed appellee and refused to pay appellee said ten per cent, commissions, and retained as his own the capital stock of The Madson-Steele Company, its good will in connection with the use of its name," its organization and the lease' to the premises occupied by said corporation
    On final hearing on exceptions to the master’s report the court decreed that said contract he rescinded and canceled, and that within five days appellant should deliver to the clerk of the court for appellee all the capital stock, the stock hook, corporate seal, and the resignations of the officers of the corporation; that the assignment of the lease he canceled, and that appellant shall surrender possession of the premises named in the lease; and that appellant he perpetually enjoined from using the name of The Madson-Steele Company.
    The master in chancery made his findings to the effect that appellee had proved the allegations of his bill and had.complied with his part of the contract; and that appellant had an erroneous idea as to the rights, duties and obligations existing between him and appellee, and illegally and wrongfully discharged appellee and prevented him from carrying out his part of the contract. 'The master found also that, the mail-order list aforesaid was purchased at the receiver’s sale in bankruptcy by appellant, the same being property of the said corporation, and that said mailing list is now the property of appellant. The court approved the report as to all of said findings of the master.
    Edwy Logan Reeves, for appellant.
    J. Erb and John P. Klein, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellant insists that the court erred in holding that the contract between appellant and appellee was not wholly expressed in the writing between them; and that the court also erred in finding that appellee had complied with his contract as far as permitted to do so by appellant, and that appellant had not performed his agreement. After examining the evidence in the record carefully we are of the opinion that appellant’s contentions in those particulars cannot be sustained. The evidence in the record is ample to sustain the specific facts as found by the master and confirmed by the court.

There is no evidence in the record and no finding by the court that appellant entered into said contract with the fraudulent intent to deprive appellee, Mad-son, of his property and business. There is no evidence in the record that appellant was guilty of any fraud whatever. The evidence simply shows a breach of the contract by appellant, and that is the sum and substance of the findings by the master and by the court. “In order for the court to grant relief by way of rescission, the case presented must embrace facts bringing it within some recognized head of equity jurisdiction, such as fraud, accident, mistake, duress, undue influence, or the like; or it must at least be shown that the complainant, if denied equitable relief, will sustain an injury for the redress of which a court of common law can afford no adequate remedy.” 24 Am. & Eng. Ency. of Law (2nd Ed.), 611; Haugle v. Yerkes, 187 Ill. 358; Gore v. Kramer, 117 Ill. 176.

The general rule is that the equitable relief of rescission of the contract will not be granted for a mere breach of the contract. The remedy in such a case is to be found in an action at law. There are some cases, however, where the equitable relief is granted for a breach of the contract in which the remedy at law is clearly inadequate. In this case the cause of action is for the breach of a simple contract of employment under an agreement to pay a commission on all new business, and in which the breach arose by reason of a disagreement as to the meaning of the term “new business.” There appears no reason, so far as we can see, why appellee may not have a complete and adequate remedy at law.

Other reasons might be given why the equitable remedy should not be granted in this case. The object of rescission of a contract is that the parties may he placed in statu quo; that is, in the same situation that the parties occupied before the contract was made. It is not possible now for appellant to return the stock of goods purchased by him to the receiver in bankruptcy or to the complainant, and no such decree was given. It is not possible for the court to decree the return to appellee of the mail-order list, which he says was the most valuable thing he agreed to turn over to the appellant, and which appellee admits appellant had to afterwards purchase of the receiver in bankruptcy, as it was held to be property of the corporation. It was a part of appellant’s agreement to buy the stock of jewelry, as contended by appellee, and having bought it from the receiver, as well as the mailing list, the court had to recognize appellant’s legal right thereto and allow him to retain them. It is admitted by appellee, virtually, that none of the other things turned over by him to appellant under his contract, except the lease and the mailing list, was of value. Appellee has not returned or offered to return to appellant the consideration of $50 per week for two months’ work that appellant has already paid to him. A party cannot have a contract rescinded, as a general rule, and at the same time retain a part of the consideration received by him. Rigdon v. Walcott, 141 Ill. 649; Buchenau v. Horney, 12 Ill. 336.

For the foregoing reasons appellant’s contention that appellee was not entitled to the equitable relief of rescission and cancellation is sustained; and the decree of the lower court is accordingly reversed.

Reversed.