author: Mr. Presiding Justice McDonald Mr. Justice Barnes

text:
    George A. Wilson, Appellee, v. Chicago Heights Terminal Transfer Railroad Company, Appellant.
    Gen. No. 23,260.
    1. Commerce, § 4

      —when shown that train engaged in interstate. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], that the train causing the injury contained shipments originating in one State and destined to another and was engaged in interstate commerce, held established by competent evidence.
    2. Master and servant, § 689

      —when verdict for plaintiff sustained by evidence in action under Federal Employers' Liability Act. In an action under the Federal Employers’ Liability Act, [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], where the negligence relied upon to sustain a recovery is defendant’s failure to exercise reasonable care to maintain its track and roadbed in a reasonably safe condition and state of repair, and in operating its locomotive at a high and dangerous rate of speed, the evidence, though conflicting, held sufficient to sustain a verdict for plaintiff.
    Barnes, J., dissenting.
    3. Master and servant, § 454

      —what is insufficient to charge locomotive fireman with knowledge of condition of ties. In an action by a locomotive fireman brought under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], to recover for personal injuries alleged to have been caused by defendant’s negligence in maintaining its track and roadbed and in operating its train, plaintiff is not chargeable with knowledge of the condition of the ties because he frequently rode over that part of the track in discharging his duties and occasionally walked along it.
    4. Appeal and error, § 1523

      —when mistake in date in instruction not ground for reversal. A mistake in giving a date in a long instruction is not ground for reversal where, in reading the instruction as a whole, the date intended is apparent.
    5. Appeal and error, § 1523

      —when misstatement of name of city in instruction is harmless error. A harmless misstatement in giving the name of a city in an instruction is not ground for reversal where, by reason of the context, the jury could not have been misled.
    6. Appeal and error, § 1241

      —when instruction may not be complained of. A defendant cannot complain of an instruction given at plaintiff’s request where the same instruction was given at defendant’s request.

      7. Master and servant, § 98

      —when instruction on damages in action under Federal Employers’ Liability Act is not reversibly erroneous. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], that an instruction which deals merely with the question of damages and does not purport to outline all of the elements necessary to a recovery, does not embody such elements of recovery, among them the doctrine of assumed risk, is not ground for reversal, especially where it tells the jury that if they find from a preponderance of the evidence and the instructions of the court, etc., then they may assess damages as proven by the evidence.
    8. Damages, § 191

      —when question as to causal connection between first and second injuries is for jury. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], for injuries to plaintiff’s leg, where it appears that about 10 months after the injury, when plaintiff had discarded his crutches for a cane in accordance with his doctor’s advice, he injured his leg again by placing his weight upon it to recover his balance which he had lost in lifting his child, the question as to whether there was a causal connection between the first and second injuries is for the jury.
    9. Damages, § 120

      —when not excessive. In an action under the Federal Employers’ Liability Act [Callaghan’s 1916 St. Supp. ¶ 9096(1) et seq.], where it appears that plaintiff’s left leg was crushed, with the result that it is shorter than the right, his entire right side was scalded, that he was unable to be about for many months and suffered intense pain, and his injuries are permanent and his earning capacity greatly impaired, a verdict for $18,725.51 is not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 15, 1918.
    Rehearing denied October 25, 1918.
    Winston, Payne, Strawn & Shaw, for appellant; Edward Warren Everett and Harold Beacom, of counsel.
    David K. Tone and Frank A. Bookhold, 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. Presiding Justice McDonald

delivered the opinion of the court.

This is an appeal from a judgment for $18,725.51, recovered in an action for personal injuries, brought under the Federal Employers’ Liability Act.

The declaration alleged that plaintiff was injured while employed as a fireman on one of defendant’s locomotives, while engaged in moving cars containing interstate shipments. The negligence, relied upon to sustain a recovery was that defendant had failed to exercise reasonable care to maintain its track and roadbed in a reasonably safe condition and state of repair, and in operating its locomotive at a high and dangerous rate of speed thereon.

Defendant’s locomotive was derailed and tipped over while pulling a train of freight cars around a curve on defendant’s track (referred to by the witnesses as the Montgomery Ward curve), whereby plaintiff was pinned under the wreckage and sustained the injuries complained of.

It is contended, first, that there is no competent evidence in the record tending to show that at the time of the accident any of the cars in defendant’s train were being used in interstate commerce.

The evidence shows that certain of the cars comprising defendant’s said train contained shipments originating in one State and destined to points in another. And while the admissibility of some of this evidence is questioned by defendant, we are of the opinion that the interstate character of defendant’s said train at the time of the accident has been established by competent evidence.

It is next contended that the evidence shows that defendant exercised ordinary and reasonable care in the maintenance of its track and roadbed and in the operation of its said train at and prior to the time of the accident.

On behalf of plaintiff five witnesses—including plaintiff’s brother who for many years prior to and at the time of the trial was also in defendant’s employ as a locomotive fireman—testified as to the condition of the ties at the place of the accident immediately after it occurred. The witness Lneder testified that 25 or 30 of the ties in the said curve were rotten, and that 15 or 20 of them were broken by the wheels of the locomotive in passing over them. The witness Paulsen testified that the rails were spread, ties were rotten for about two rail lengths; that the spike holes were all rotten and that the spikes were loose. On cross-examination he admitted that the breaks in the ties “looked new.” The witness McAtee testified that he saw ties broken with ends sticking up, rails twisted; that whole parts of some ties were rotten; that there were seven or eight of these ties in track where engine jumped; that probably 25 or 30 of the ties had wheel marks; that some were cut nearly through and the better ones were not so deeply cut. The witness La Claire testified that there were about 25 or 30 ties that were cut by the flanges of the wheels; that where the ties were so cut, they looked rotten and spikes were loose. Plaintiff’s brother stated that about 25 or 30 of the ties were rotten and that the spikes pulled out.

On behalf of the defendant, nine witnesses testified as to the condition of the roadbed at said time and place, and particularly as to the condition of the ties which were broken by the wheels of the locomotive in passing over them. The witness Bach, who was in charge of the wrecking crew that removed the wreckage, testified that they replaced 9 broken ties, and that the breaks in the ties removed looked new. Jensen, track foreman for defendant, testified that the broken ties looked “perfectly sound”; that they removed but 6 broken ties; that during March and April, 19Í4, he walked over the track every 2 or 3 days, at which times it appeared to be in good condition; that in 1913 they took out and replaced a great many ties in the curve, which were a “little rotten at the ends and would not hold spikes.” Beaudry, superintendent of the Elgin, Joliet & Eastern Railway, who was at the scene of the accident with the wrecking crew, testified that about 50 feet of track was tom up and lying about a foot out of place; that the ends of perhaps 10 or 15 ties were cut off and about 35 damaged, where the engine ran over them after it was derailed; that the breaks in the ties looked new and that none of the spikes had pulled out. Varga, a member of the wrecking crew, stated that the broken ties were of hard oak and did not look very bad. Kapinus, another member of the wrecking crew, testified that some of the broken ties looked new and some looked old. On cross-examination he admitted that some ties “looked rotten and some did not.” Manno, a section hand, stated that they replaced 6 broken ties; that the broken ties looked “pretty good”; that none were rotten; that the track looked “pretty good” before the wreck. Franze, also a section hand, testified that the broken ties looked good. Nardi, another section hand, testified that the breaks in the ties looked new; that the condition of the track before the derailment was good. • Angella, another section hand, testified substantially to the same effect.

In addition to the foregoing, defendant introduced the testimony of ten witnesses who in the course of their duties had occasion to make a casual observation of defendant’s roadbed. Their testimony was to the effect that it always appeared good—ties apparently sound, etc. One of these witnesses—Eaken, a section foreman employed by the Chicago & Eastern Illinois Railroad—admitted on cross-examination, however, that the proper way to inspect ties that looked old and dirty was to drive a pick into them to determine whether ties apparently sound on the outside were decayed and unsound on the inside. None of these ten witnesses claimed to have made more than a casual inspection of the roadbed at any time. Two of these witnesses also testified that they noticed 8 spikes were used to a tie, around the entire curve. This was disproved, however, by photographs admitted in evidence on behalf of both the plaintiff and the defendant. Some of the witnesses also testified that during the spring of 1913 upwards of 130 ties had been put in at the Montgomery Ward curve; that the ties so used were of the highest quality oak. The witness Mueller stated that the ties so used “covered the entire length of the curve,” which he later stated was about seven or eight hundred feet. An examination of the photographs in evidence reveals that at the time and place of the accident but a few of the ties in defendant’s roadbed looked new. And Mueller’s admission that the curve was seven or eight hundred feet long qualifies his statement that 130 or 140 ties “covered the entire length of the curve. ’ ’

Defendant introduced also the testimony of six other witnesses who claimed to have had considerable experience in railroad track construction, who testified that trains could safely pass over defendant’s roadbed at a speed of from 15 to 20 miles per hour. Five of these witnesses based their opinions upon a joint inspection made of defendant’s track in September, 1916—more than 2 years after the happening of the accident. The other witness apparently based his testimony upon the statements of the five who made the inspection just referred to. All this testimony was predicated upon the claim of defendant that the condition of its roadbed was substantially unchanged from the time of the accident to the time the five witnesses made the inspection. 1

Mulholland, superintendent of defendant, was asked on cross-examination whether he had ever issued an order directing engineers to reduce the speed of their trains because of the condition of defendant’s roadbed, to which he answered in the negative, stating that a train conld safely pass over the said curve at the rate of from 20 or 25 miles per hour, and that there never was any occasion to reduce speed because of track conditions. Later, when confronted with what purported to be a slow-down order bearing his name, the witness admitted that on January 21, 1916, he issued the following order:

“Engineers and trainmen:
“Present condition of our roadbed makes it necessary for you to reduce speed to five miles per hour on all of our tracks, to avoid possible derailments. ’ ’

His explanation for this order was that rain, snow, frost and thaw had affected the roadbed and hence made the order imperative. Thereupon another slowdown order bearing date June 4, 1914, was shown to the witness, which he admitted having also issued at a time when the aforesaid weather conditions did not exist, but stated it was given at the special instance of the general manager of the defendant company.

There was some variance in the testimony as to the speed of defendant’s train at and just prior to the time of the accident. Defendant’s witnesses fixed it at from 6 to 12 miles per hour, while plaintiff’s witnesses placed it at from 10 to 15.

Northrup, the engineer of defendant’s train at the time of the accident, testified that it was his duty to observe the rails from the cab of the locomotive while the train was moving; that he did so just before the accident, but noticed no obstruction of any kind thereon.

We have discussed the testimony in detail because of defendant’s vigorous contention that the verdict is clearly and manifestly against the weight of the evidence. The logic of defendant’s argument in support thereof is, that inasmuch as the evidence shows by an overwhelming preponderance that its roadbed -at the time of the accident was in a good state of repair, capable of safely operating trains over it at a speed of 20 miles per hour, it cannot be charged with negligence because of the derailment of one of its trains while moving at a much lower rate of speed.

While it is true that nine witnesses for defendant testified that the broken ties were otherwise sound, and that plaintiff produced only five who testified that they appeared rotten, yet the fact that defendant had the greater number of witnesses on this point was but a circumstance to be considered by the jury in connection with the other facts and circumstances in evidence. All of the witnesses who testified regarding the broken ties were in an equal position to judge of their condition. In view of the conflict in their testimony, the credibility of the witnesses was an important element to be considered by the jury. It must also be borne in mind that the testimony of the ten witnesses on behalf of defendant, who based their statements upon casual observations of the roadbed, was somewhat nullified by the admission of defendant’s witness Eaken, that the proper way to inspect an old or dirty looking tie was to drive a pick into it. We think it also a just inference that some of defendant’s witnesses were overzealous in their efforts to substantiate defendant’s claim as to the condition of its roadbed. This became apparent when plaintiff introduced the photographs hereinabove referred to, showing the condition of the roadbed immediately after the derailment. And the other testimony offered on behalf of defendant respecting the alleged condition of its roadbed at-the time of and subsequently to the accident must be viewed in the light of Mulholland’s admission regarding the slow-down orders issued by him on June 4, 1914, and on January 21, 1916, respectively. All of the foregoing circumstances had a direct bearing upon the question of liability. The jury by their verdict have resolved the issues in favor of the plaintiff; and when viewed in the light of all the evidence in the case, together with the inferences that reasonably flow therefrom, we cannot say that such verdict is clearly and manifestly against the weight of the evidence. To hold otherwise on the evidence as disclosed by the record before us would be tantamount to a denial of the right of trial by jury.

It is next contended by defendant that plaintiff is barred from a recovery, on the doctrine of assumed risk. Stress is laid upon the fact that plaintiff was in a position to observe the condition of the roadbed from the locomotive cab, and it is also argued that inasmuch as plaintiff had been employed by defendant for a number of years, during which time he frequently rode and occasionally walked over defendant’s track, he was presumed to know the condition of the roadbed.

Under the evidence in this case, we are of the opinion that plaintiff, whose duty it was to shovel coal into the fire box of a moving locomotive, could not be charged with knowledge of the condition of the ties of the roadbed over which the engine was passing. And while it may be conceded that at times he was in a position to observe parts of the track and roadbed over which his train was passing, yet the nature of his work rendered it impossible to observe all parts of it. We find no evidence in the record tending to show that it was part of plaintiff’s duty to inspect the roadbed. Nor can he be charged with knowledge of its condition which would bar a recovery, because he occasionally walked over the track, for it is undisputed that'the proper way to inspect old and dirty looking ties is to drive a pick into them. •

Complaint is made of the giving of certain instructions on behalf of the plaintiff.

Instruction No. 2 was to the effect that if the jury found from the evidence that plaintiff and defendant were engaged in interstate commerce on May 27, 1914, etc. It is contended that as the accident occurred on April 27, 1914,- this instruction was misleading and that the giving of it constituted reversible error. We cannot agree with this contention. The said instruction was rather long, and in several instances referred to the “time of the accident in question.” In reading the instruction as a whole, the conclusion is irresistible that the date referred to as May 27, 1914, must have been understood by the jury to mean April 27, 1914, the time of the accident.

The said instruction also referred to a shipment originating in Chicago Heights, Illinois, and destined to a point beyond the State of Hlinois. At one place the instruction omitted the word “Heights” after “Chicago,” so that it read, “from Chicago, Illinois, to a place beyond the State of Illinois.” We think, however, this was also a harmless misstatement which, in view of the context, could not have misled the jury to defendant’s prejudice.

Instruction No. 7 directed the jury to allow defendant for moneys already paid out by defendant to plaintiff under the Hlinois Workmen’s Compensation Act, 11 as evidenced by the receipts. ” It is contended by defendant that moneys were paid out by defendant in addition to that evidenced by the receipts; that the jury allowed only $1,274.49 under this instruction, whereas they should have allowed considerably more. We find, however, that instruction No. 33 given on behalf of the defendant expressly directed the jury that if they found the issues for plaintiff they should deduct $1,274.49 from any amount they found plaintiff was entitled to recover. Defendant is therefore not in a position to complain of instruction No. 7 given on behalf of plaintiff.

Instruction No. 8 is complained of because, it is alleged, it directs a verdict without embodying all the elements requisite to a recovery, particularly the doctrine of assumed risk. The instruction in question dealt merely with the question of damages and did not purport to outline all the elements necessary to a recovery. Furthermore, it told the jury that if they found from a preponderance of the evidence and the instructions of the court, etc., then they might assess damages as proven by the evidence, etc. We think the instruction was proper. Bonato v. Peabody Coal Co., 248 Ill. 422.

The further point is made by defendant that the damages awarded plaintiff are excessive.

The evidence shows that about 10 months after receiving the first injury, and before plaintiff had fully recovered therefrom, he suffered a second injury to his leg, which proved quite severe. Some weeks prior to the second injury plaintiff, upon the advice of his physician, dispensed with the use of his crutch and attempted to use the injured limb with the aid of a cane. In an effort to lift his one and one-half-year-old child from a chair, he became overbalanced and shifted his weight on the injured leg which gave way and caused him to fall and break the femur thereof a second time.

Defendant argues that there is no evidence tending to show a causal connection between the first and second injuries. However, as we view the evidence in this case, the question whether or not there was a causal connection between the two injuries was one of fact, which the court properly submitted to the jury for determination. Seith v. Commonwealth Elec. Co., 241 Ill. 252; Devlin v. Chicago City Ry. Co., 210 Ill. App. 7.

There can be no doubt that plaintiff was seriously injured. His left leg was crushed and his entire right side was scalded when defendant’s locomotive left the rails and tipped over. He was unable to be about for many months after the injury, during which time he suffered intense pain. His left leg is now considerably shorter than the right; his injuries are permanent, impairing his earning capacity greatly. In such circumstances we cannot say that the damages assessed are excessive, particularly in view of the fact that in recent years the purchase power of money has- greatly diminished.

Other points have been raised, which we consider of minor import and not of sufficient moment to disturb the judgment, and hence we shall not dwell upon them. After a most careful examination of the evidence and a thorough consideration of the points raised by defendant, we are of the opinion that the defendant has had the benefit of a fair and impartial trial, and that the verdict of the jury was rendered under instructions which fully and correctly set forth the law governing the rights of the parties.

Accordingly the judgment will be affirmed.

Affirmed.

Mr. Justice Barnes

dissenting.

I think the verdict is against the manifest weight of the evidence, not only on the questions of defective conditions and dangerous speed, but on the question of the exercise of ordinary care to keep the track in a reasonably safe condition, and that the accident was one of the ordinary dangers incident to the service which was assumed in the contract of hire.


source: Caselaw Access Project

author: Mr. Presiding Justice McDonald

license: Public Domain

text:
    Ben H. Arkin, Administrator of the Estate of Annie Marie Christiansen, Deceased, Appellee, v. Seth H. Page, Appellant.
    Gen. No. 23,693.
    1. Automobiles and gabages, § 2

      —what evidence tends to show negligence of son of owner of automobile in running over child. In an action to recover for the death of a 3-year-old child struck by an automobile, evidence of a witness that at the time of the accident he saw defendant’s son, who was driving the automobile, looking back and waving at some one and that, seeing two children in the street, he called to the driver to look out for them and that he saw the automobile run over plaintiff’s intestate, tends to show negligence on the part of such driver.
    2. Negligence, § 202

      —when negligence of mother in permitting

      child struck by automobile to be in front of parents’ store is question for jury. In an action to recover for the death of a 3-year-old child struck by an automobile, the question whether the mother of the child was negligent in permitting the child to be on the sidewalk in front- of the parents’ store, held, under the evidence, to be for the jury.
    3. Parent and child, § 39

      —when father is liable for injury to child by automobile driven by son. In an action to recover for the death of a child killed by an automobile operated by defendant’s minor son, where it appears from the evidence that the automobile in question was purchased by defendant about 3 years prior to the accident, for the convenience and pleasure of his family; that during the first year after its purchase it was operated solely by his minor son, and later on by other members of the family; that the son had an unrestricted right to the use of the automobile at all times for his own pleasure or convenience, without first obtaining special permission from defendant; that at the time of the accident, the son occupied the automobile alone and was on his way to an educational institution to register as a student; that none of the other members of the family was aware of the nature of his mission, and that the son intended to pay his tuition out of his own bank account, and there was no evidence tending to show that the son had been emancipated up to the time of the accident, the doctrine of respondeat superior applies and defendant is liable for the injury caused by his son.
    Appeal from the Circuit Court of Cook county; the Hon. Kiokham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed October 15, 1918.
    Landon & Holt, for appellant; Egbert N. Holt, of counsel.
    J. A Arkin, for appellee; Thomas D. Nash and Michael J. Ahern, of counsel.

      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. Presiding Justice McDonald

delivered the opinion of the court.

On June 24, 1914, appellant’s son, George J. Page, then 20 years of age, while driving appellant’s automobile south on Crawford avenue near Bloomingdale Boad, in the City of Chicago, ran over and killed plaintiff’s intestate, a 3-year-old child. Suit was instituted against both the appellant and his said son, but before verdict plaintiff dismissed the latter from the case; and from the judgment entered upon the verdict against appellant this appeal has been prosecuted.

The first point raised by appellant is that the record before us contains no evidence of negligence on the part of his son in the operation of the said automobile at the time and place in question. In making this contention, appellant ignores entirely the undisputed testimony of the witness Brown, who was driving a beer wagon in a northerly direction on Crawford avenue at the time and place of the accident, and who testified that just after he had passed the automobile he heard some one whistle; that he immediately looked around and saw the driver of the automobile looking back and waving to some one; that, seeing two children in the middle of the street, he “hollered” to the driver of the automobile to look out for them; and that he saw appellant’s automobile run over plaintiff’s intestate. Clearly this evidence tended to show negligence on the part of appellant’s son.

Whether or not the mother of the said child was guilty of contributory negligence in permitting the child to be upon the sidewalk in front of the parents’ store was, under the evidence as disclosed by the record, a question of fact for the determination of the jury; and from a careful examination thereof, we are not disposed to disturb their finding.

It is next contended that under the evidence appellant is not liable for the alleged negligent acts of his son.

It appears from the evidence that the automobile in question was purchased by appellant about 3 years prior to the accident, for the convenience and pleasure of appellant’s family; that during the first year after its purchase it was operated solely by appellant’s said minor son, and later on by other members of the family ; that the said minor son had an unrestricted right to the use of the said automobile at all times for his own pleasure or convenience, without first obtaining special permission from appellant; that at the time of the accident appellant’s son occupied the automobile alone and was on his way to the Lewis Institute to register as a student; that none of the other members of the family were aware of the nature of his mission, and that the said minor son intended to pay his tuition out of his own bank account. There is, however, no evidence in the record tending to show that appellant’s minor son had been emancipated up to the time of the accident.

As we view the record in this case, appellant’s automobile at the time of the accident was being used by his son for a purpose within the contemplation of appellant, and hence the doctrine of respondeat superior applies.

The precise question here presented for determination has never been passed upon by the Supreme Court of our State, and an examination of the authorities on the question of liability of the owner of an automobile where injury results to a third person while the vehicle is being operated by a minor child of the owner, reveals that there is a lack of harmony in the conclusions reached. (See McNeal v. McKain [33 Okla. 449] 41 L. R. A. [N. S.] 775, and case note.) We shall not here attempt to reconcile the decisions but deem it sufficient to state that none of them are inconsistent with the holding that where the injury results while the vehicle is being used for a purpose within the contemplation of the owner, and hence, in his business, the latter is liable. Such being the situation in the case at bar, we hold that appellant is liable for the negligence of his said minor son, as a result of which plaintiff’s intestate was killed. Davis v. Littlefield, 97 S. C. 171.

Other points have been urged by appellant for a reversal, which, however, we shall not discuss, save to say that they are not of sufficient moment to warrant disturbing the verdict. There being no error in the record which justifies a reversal, the judgment will be affirmed.

Affirmed.


text:
    Henry Tifft, Appellant, v. Chicago College of Medicine and Surgery, Appellee.
    Gen. No. 23,752.
    Taxation, § 664

      —what taxes, legal costs and penalties may not he recovered of owner hy purchaser at tax sale. Hurd’s Rev. St. ch. 120, sec. 214 (J. & A. ¶ 9433), contemplates the recovery from the owner of the property hy the purchaser at a tax sale only of such taxes, legal costs and penalties as shall have been properly levied and paid, and does not permit him to recover from the owner of untaxable property taxes which he paid thereon.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honor®, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed October 15, 1918.
    Rehearing denied November 12, 1918.
    Enoch J. Price, for appellant.
    H. J. Rosenberg, for appellee; Irving Zimmerman, of counsel.

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

   Mr. Presiding Justice McDonald

delivered the opinion of the court.

This is an appeal by plaintiff, Henry Tifft, from a judgment in favor of defendant, in an action for the recovery of moneys advanced in payment of taxes upon certain real estate owned by defendant.

The cause was submitted to the trial court upon a stipulation of facts, from which it appeared inter alia that: Defendant is an Illinois corporation, not for pecuniary profit, engaged in conducting a medical college in the City of Chicago; that on October 4, 1910, it became and has ever since been the owner of the premises described in plaintiff’s affidavit of claim, which have been occupied and used by defendant in conducting its said medical school; that under the laws of this State, the said premises have been exempt from taxation during the aforesaid period; that on September 26,1912, plaintiff purchased the said premises at a tax sale (presumably for taxes levied for the year 1911), and received a certificate of sale; that taxes were levied for the years 1912 and 1913 on said premises, which were also duly paid by plaintiff; that at some date prior to the expiration of 3 years from the date of the said tax sale, the county clerk of Cook county entered upon the tax judgment sale and redemption record the following entry:

“Sale in error. Property of Chicago College of Medicine and Surgery. Robert M. Sweitzer, County Clerk”; that the county treasurer of Cook county has refunded to plaintiff the amount paid by him at the said tax sale; that plaintiff has not been reimbursed by defendant or any other person for any part of the moneys paid by him for taxes levied on said premises for the years 1912 and 1913.

The sole question here presented for determination is whether or not plaintiff is entitled to recover from defendant the taxes levied on its said premises for the years 1912 and 1913 and paid by him as aforesaid.

Our Revenue Act, ch. 120, Rev. St. (J. & A. ¶¶ 9432, 9433), provides as follows:

“Sec. 213. Whenever it shall be made to appear to the satisfaction of the county clerk that any tract or lot was sold; and that such tract or lot was not subject to taxation, or upon which the taxes or special assessments had been paid previous to the sale of said tract or lot, or arises from a double assessment, or that the description is void for uncertainty, he shall make an entry opposite to such tracts or lots in the sale and redemption record, that the same was erroneously sold, and such entry shall be prima facie evidence of the fact therein stated, and unless such error is disproved, the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and cancel such certificate so far as it relates to such tract or lots. * * *
“Sec. 214. When the purchaser at such erroneous sale, or any one holding under him, shall have paid any tax or special assessment upon the property so sold, which has not been paid by the owner of the property, he shall have the right to recover from such owner the amount he has so paid, with ten per cent interest, as money paid for the owner’s use.”

As already indicated, the property in question was not subject to taxation during the years 1911, 1912 and 1913. The said tax sale wgs therefore erroneous, and under section 213, supra, plaintiff was entitled to a refund from the county collector of the amount paid by him at the said tax sale. This he has already received. In our opinion, however, section 214 contemplates reimbursement to the purchaser at the tax sale, of all taxes, legal costs and penalties as shall have been properly levied and paid subsequently to such tax sale. (Glos v. Shedd, 218 Ill. 209; Langlois v. Cameron, 201 Ill. 301; Boals v. Bachmann, 201 Ill. 340; Wilmerton v. Phillips, 103 Ill. 78.) For instance, if defendant’s property were exempt from taxation during the year 1911, and, by reason of change of ownership or other circumstances, it became subject to taxation during the years 1912 and 1913, in such event if plaintiff paid the taxes properly levied on said property for the 2 last-mentioned years, he could be said to have properly paid the taxes, to protect his purchase, entitling.him to a recovery from the defendant or its privies, of the amounts so paid. (Joilet Stove Works v. Kiep, 230 Ill. 550.) Such, however, is not the situation in the case at bar. Defendant’s property was exempt from taxation at the time of said sale, and has so continued up to the time plaintiff brought this suit. It follows, therefore, that the taxes paid by plaintiff for the years 1912 and 1913 were not legally levied against defendant’s said property, and hence they were not properly paid by plaintiff, to protect his purchase. To hold otherwise would be to require the owner of nontaxable property to pay not only a void tax, but costs and a 10 per cent penalty as well—a situation clearly not contemplated by the statute. We conclude, therefore, that the judgment of the Circuit Court is correct, and accordingly it will be affirmed.

Affirmed.

Mr. Justice Barnes took no part in this case.


author: Mr. Justice Barnes

text:
    Arthur B. Wright, Appellee, v. George T. Clark, Appellant.
    Gen. No. 23,302.
    1. Attorney and client, § 105

      —when no recovery may be had for services in effecting compromise settlement. Where an attorney retained by the widow and heirs of a testator to set aside the will or effect a settlement enters, without their knowledge, into an agreement with the attorney of one of the executors, whereby he receives 80 per cent of the fees allowed such attorney, he cannot recover for his services in effecting a compromise settlement.
    2. Attorney and client, § 105

      —what is effect of acquiescence in misconduct of attorney on liability for services. In an action by an attorney to recover for professional services rendered a client, where the defense is the attorney’s professional misconduct, it cannot be set up by the plaintiff that defendant had knowledge of and acquiesced in the misconduct.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed October 15, 1918.
    Scott, Bancroft, Martin & Stephens, for appellant; Frank H. Scott, of counsel.
    Gregory, Burges & McNab, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action in assumpsit brought by. appellee to recover for professional services, predicated upon the following agreement pursuant to which the services were rendered:

“Copy of Agreement Sued On.
“We agree that the compensation for professional services performed by Arthur B. Wright in the matter of the contest of the will of Jonathan Clark, shall be the sum of $250 per month, together with $75 per month and $50 per month, respectively, for Mr. Cox and for typewriting, a total of $375 per month.
“After the case is set for trial, if any adjournment occurs after the case is prepared for trial, or any delay thereafter in the proceedings occurs, the amount to be paid monthly as above shall be reduced to a sum consistent with all the services performed, if a continuation of such payment each month would amount to a sum greater than a fair compensation therefor; and the case shall be brought to as speedy a trial as consistent with a proper preparation for trial, and all proceedings expedited so far as proper and consistent with the circumstances.
“This agreement dates from May 1st, 1903, and the sum of $1,000 now paid to said Wright for services performed prior to such date.
1 ‘ The foregoing monthly payments are in full of all demands for any services rendered by said Wright to the heirs of Jonathan Clark, except in the event of a settlement made with the approval of all concerned, or except in the event of a successful issue, whereby the will of Jonathan Clark is permanently set aside, in either of which events the compensation shall be such additional sum as Mr. Shea Smith, Mr. George Clark and Mr. Fred Clark, or any two of them, shall agree upon.
“Dated Chicago, Illinois, June 17th, 1903.
(Signed) Arthur B. Wright,
F. W. Clark,
George T. Clark,
Shea Smith.”

The judgment appealed from was for $15,000 against George T. Clark, who, at the time of its entry, was the only surviving party to said agreement other than appellee. Since this appeal he, too, has died, and substitution has been duly made.

The litigation referred to in said agreement extended in one form or another from May, 1903, until January, 1909, when a satisfactory settlement was reached. No question arises under said agreement except as to the additional compensation therein provided for. Two months after said settlement, Smith being then dead, the two Clarks designated in the agreement met and agreed upon the sum of $2,500, which appellee declined to accept, and which appellant, on the theory of an appraisement, contends is the utmost that could be recovered. While we share his view that, under the contract and circumstances, their action constituted an appraisement, the point does not enter into our conclusion, as on this record we think no sum whatever can be recovered.

Appellant pleaded in bar of any recovery instances of professional misconduct by which appellee forfeited further compensation, and urges that on grounds of public policy the defense cannot be waived. While the case went to the jury on at least one instruction based on that rule of law, appellant strongly insists that application of the rule to undisputed facts required granting his motion for a directed verdict, and calls for reversal of the judgment. On the other hand, appellee contends not only that the instances complained of pertained to services and matters not inconsistent with his duties and obligations under the contract under which he seeks recovery, but that the essential features of misconduct were disputed, thus raising a question of fact and not one of law on which the motion was predicated.

While it may he doubtful whether as to other instances of misconduct relied on the case should have gone to the jury, we think the controlling facts of what is referred to as the “Cox matter” stand uncontroverted and called for application of the rule.

Those facts are as follows: Under the agreement in question appellee was to act for the widow and heirs of Jonathan Clark (of whom George T. and Frederick W. were sons and the wife of Shea Smith, a daughter) either to set aside his will or to effect a settlement of controversies that need not he detailed. The litigation took various forms resulting in a decree of the Circuit Court confirming a compromise settlement, and in proceedings to close the estate in the Probate Court. In all the litigation appellee appeared for and represented the heirs. Testifying to the services he rendered for them in the various courts, including the Probate Court, he said:

“In all this litigation which I have mentioned and in which I took part, the services rendered by me were for the benefit of the heirs of Jonathan Clark, and in pursuance of the contract of June 17, 1903.”

There were three executors of Jonathan Clark’s will, Edwin F. Bayley, Caroline Patterson and said George T. Clark. Each in course of time had a separate attorney, and the “Mr. Cox” referred to in said agreement became the attorney for George T. Clark as such executor. Early in his negotiations to represent the heirs, appellee had elicited Cox’s services in their behalf and made provision therefor in said agreement, under which both received their respective monthly allowances up to the time of the settlement in January, 1909. By orders of the Probate Court, allowances were made out of the estate for attorney’s fees for the executors, of which Cox, as attorney for executor George T. Clark, received $10,500. Out of this sum he gave appellee $8,400, pursuant to appellee’s construction of an agreement between them for a division of their compensation. While Cox had a different understanding of that arrangement, claiming it did not extend to services rendered for executor Clark, he yielded to appellee’s views, giving him 80 per cent of each allowance received by him as attorney for executor Clark, and presumptively was willing to render such services for 20 per cent of what was allowed. While Cox was brought into the case by appellee and apparently rendered the greater part of the legal services for which he received compensation, and has unreservedly explained the peculiar circumstances that led to his acquiescence in appellee’s demands, his position in the matter, though quite different from appellee’s, is not in question here, and our views as to the latter’s position must not be regarded as a reflection upon Mr. Cox.

This agreement was unknown to the widow or heirs. From certain testimony appellee argues that they or some of them subsequently acquired knowledge of such a division, but the testimony cited obviously refers only to their knowledge of the agreement sued on and the compensation paid pursuant thereto. But, as we view it, knowledge of such arrangement and acquiescence therein would not alter the situation. If it was professional misconduct to arrange for and accept such a division, then on grounds of public policy such misconduct cannot be waived. (Strong v. International Building, Loan & Investment Union, 183 Ill. 97.)

It is obvious that the main object of appellee’s employment was to procure for his clients as large a portion of said estate as possible, and that his relation to them imposed not only the duty to resist any unjust or excessive allowances out of the same, but to give them the benefit of his best judgment as to the propriety of such allowances, and to refrain from taking any position conflicting with their interests or such employment. But from the foregoing state of facts can it be doubted that he violated these obligations? His arrangement with Cox, as he construed and enforced it, and concealment of the same from his clients, unquestionably placed him where his personal interests were prejudicial to theirs, and thus where he could not give them the impartial judgment to which they were entitled as to the amount and propriety of attorney’s fees for executor Clark. It can hardly be doubted that his claim for and insistence' upon the right to receive a share of such fees furnished a motive either to acquiesce in any sum that might be asked for attorney’s fees, or to attempt to reconcile the relative interests of the executor and his clients as working to a common end. If Cox was willing to take the $2,100 which he retained for his services, how could appellee with knowledge of that fact, consistent with his employment and the interest of his clients, stand by without protest and see an allowance of $10,500 therefor out of the estate? It is significant that he did not disclose such arrangement to his clients. We cannot doubt that his attitude was adverse to their interests, and tantamount to employment on both sides of a controversy. He was as much interested in such allowances for the executor as if personally employed by him to render the services for which the allowances were made.

We need not distinguish the facts in cases where the rule of law invoked has been applied, or go outside of the case of Strong v. International Building, Loan & Investment Union, 183 Ill. 97, for the law. There, as here, it was argued that the interests served by the attorney were not adverse. The court said:

“But if they were only apparently so from the record of the proceedings, and were in reality, as counsel insist, not so adverse but that counsel could reconcile them in working to one end, yet we are disposed to think that the rule would apply.” (103.)

The court declared that the rule forbidding attorneys at law from accepting employment from adverse litigants at the same time and in the same controversy is a rigid one, and was designed among other purposes “to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests rather than to enforce to their full extent the 'rights of the interest which he should alone represent.” (101.)

These words are particularly applicable to the instant case. Appellee could not consistently have taken fees for such.legal services to the executor unless they were absolutely necessary to the interests of said heirs. His position required him to inquire whether they were, and, in any event, good faith towards them required a complete divulgence to each of them of his interest in such fees. While appellee was not employed by Clark as executor, his position is no different in principle than if he secretly had been. If he did not, in fact, serve conflicting interests, his bargain with Cox, as he construed it, furnished such a strong motive to reconcile them as to render him unfit to give his clients ’ interests impartial consideration.

We cannot doubt the applicability of the rule invoked to the undisputed facts of this record as above given, and that a recovery is thereby precluded as a matter of law.

We deem it unnecessary to dilate upon appellee’s contention, apparently raised here for the first time, that the right to his recovery has been previously adjudicated in his favor. Appellant was not a party to the record relied on, and, in our opinion, it contains nothing tending to support the contention.

Reversed.


text:
    Austin A. Clemens, Appellant, v. Katherine B. Munroe et al., Appellees.
    Gen. No. 23,633.
    1. Wills, § 262

      —when words “heirs at law’’ construed to include husband of testator. Where It does not otherwise clearly appear from the context of the will, the words “heirs at law” will be construed to designate the same persons as in case of intestacy, and to include a husband, and therefore a husband may contest, on the ground of her mental incapacity, a will by his wife disposing of property given her under a will which provided that in the event she failed to dispose of it, it should pass to her heirs at law.
    . 2. Equity, § 183

      —when plea not sustained. A plea must stand or fall upon its own merits and cannot be sustained by showing the bill to he defective.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

    Reversed and remanded.
    Opinion filed October 15, 1918.
    Rehearing denied October 25, 1918.
    William E. Rafferty, for appellant; Simon La Gtrou, of counsel.
    Tenney, Harding & Sherman and John S. Stevens, for appellees; Horace Kent Tenney and John S. Stevens, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

The bill of complaint herein was filed by appellant, surviving husband of Annis Munroe Clemens, to contest her last will and testament, to which was filed a joint and several plea to the whole bill. The plea having been set down for argument, and, on a hearing, held a sufficient bar to the bill, and the complainant having elected not to plead further, the decree dismissed the bill for want of equity, from which this appeal is taken.

The theory on which the bill seeks to have her will declared null and void is alleged mental incapacity and- undue influence inducing its execution. The gist of the plea is that complainant has no right that gives him a standing to maintain the suit.

The plea sets forth the fact of the death of James E. Munroe, an attorney at law and father of said Annis Munroe, and the provisions of his last will and testament, whereby he gives one-third of Ms residuary estate to a trustee for Ms daughter Annis, “for her sustenance and support during her life,” empowers the trustee to invest and reinvest the same and to collect the income, directs that said income be paid over into her own personal hands “and not to any husband she may have, or to any other person,” and further directs :

“* * * that, upon the death of said Airnis Mun-roe, after my decease, said trustee shall transfer and pay over the principal of tMs trust estate to the person or persons to whom said Annis Munroe shall, by her last will and testament, appoint or bequeath the same; and, in default of such appointment or bequest by the said AnMs Munroe, then to the heirs at law of said Annis Munroe.”

The plea then avers that said will of AnMs was a mere exercise of such power of appointment or bequest given in her father’s will, and did not attempt to dispose of her own estate; that James E, Munroe intended in his said will to use the words “heirs at law” in the sense of “heirs of the blood,” wherefore complainant had no standing to maintain his suit, and defendants ought not to be compelled to make any answer.

To sustain such construction of the words “heirs at law” in the quoted provision, appellees cite the eases of Smith v. Winsor, 239 Ill. 567; Black v. Jones, 264 Ill. 548, and McGinnis v. Campbell, 274 Ill. 82, in each of which the court held that the testator’s use of the words “heirs at law” were intended to mean “heirs of the blood.” While the wills under consideration in those cases, each taken as a whole, clearly indicated such an intent, we fail to discern any such intent in the will of James E. Munroe, or that the facts set up in the plea tend to disclose such an intent.

Construing the words “heirs at law” as used in the will of a testatrix, who, as in the instant case, left a surviving husband but no child or children, it was held in Richards v. Miller, 62 Ill. 417, citing Rawson v. Rawson, 52 Ill. 62, and other authorities, that where it does not otherwise clearly appear from the context of the will, the words “heirs at law” will be construed to designate the same persons as in case of intestacy, and that the husband, in such a contingency, will be included within such words. We fail to see in the plea, or authorities cited to sustain it, anything that would warrant a different interpretation here. Hence we think appellant could properly institute the suit, and that the plea should, therefore, have been overruled.

Appellees argue that the bill is insufficient to support the relief prayed for. Whatever might be our view on that matter were it properly before us, it is enough to say that the plea cannot be sustained by showing the bill to be defective. (Sperry v. Miller, 2 Barb. Ch. [N. Y.] 632.) The sufficiency of the bill cannot be questioned by the plea. The plea must stand or fall upon its own merits. (Lawrence v. Pool, 2 Sandf. [N. Y.] 540; Van Hook v. Whitlock, 3 Paige [N. Y.] 409.) Consequently we must reverse the decree and remand the cause.

Reversed and remanded.


author: Mr. Justice Barnes Mr. Justice Barnes

text:
    Christopher Strassheim for use of Maria P. Barnes, Appellant, v. Mary C. Barnes, Administratrix, et al., Appellees.
    Gen. No. 23,838.
    1. Appeal and error, § 1065

      —when question whether finding is against weight of evidence is sufficiently raised. Even though it is not assigned and argued as error that a finding was against the “weight of the evidence” eo nomine, the question as to whether it was against the weight of the evidence is sufficiently raised where it is assigned as error that the finding and judgment are contrary to the evidence, that the amount of the finding and judgment and the damages are insufficient, and appellant’s analysis of the evidence and deductions therefrom as to the insufficiency of the damages clearly imply and involve the contention and conclusion that the court’s finding and judgment were against the weight of the evidence.
    ■ 2. Replevin, § 206

      —when presumption of ownership of securities arising from possession is overcome. In an action on a replevin bond given by an administratrix where a nonsuit was taken in the replevin case, a writ of retorno was issued and returned reciting a demand for the securities taken under the writ, and a refusal to comply, where it appears that not only were the securities purchased by defendant’s intestate with the funds intrusted to him by plaintiff, who was his sister, hut were commingled with his own securities without distinguishing marks of ownership and no accounting was rendered by him, but also there are undisputed and unimpeached admissions by him of plaintiff’s ownership of the securities, the evidence is sufficient to overcome the prima facie proof of his ownership arising from the fact that the securities were in his possession at the time of his death, and, in such case, the damages assessed should have been the unquestioned value of the securities.

      Additional Opinion on Rehearing.
    1. Municipal Court of Chicago, § 8

      —when has jurisdiction. The jurisdiction of the Municipal Court of Chicago under section 2 of the Municipal Court Act (J. & A. ¶ 3314) includes specialties even though the amount claimed exceeds $1,000, and consequently the court has jurisdiction of an action on a replevin bond in which the amount claimed exceeds $1,000, such action being one on a contract.
    2. Appeal and error, § 50

      —what finding upon facts unnecessary. Where the Appellate Court differs from the trial court as to facts, a finding upon the facts not in controversy is not necessary in the judgment order.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of fact and judgment here for $56,150.
    Opinion filed October 15, 1918.
    Rehearing denied and additional opinion on petition for rehearing filed November 22, 1918.
    Oscar E. Lbinen, for appellant; Robert F. Kolb, of counsel.
    Henry W. Magee, E. W. Adkinson and Mayer, Meyer, Austrian & Platt, for appellees.

      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 Barnes

delivered the opinion of the court.

This was an action on a replevin bond, given to appellant Strassheim, as sheriff, in a replevin suit in which appellee, Mary C. Barnes, administratrix of the estate of Erastns A. Barnes, deceased, was plaintiff, and appellant, Maria P. Barnes (known and herein referred to as Myra Barnes), was defendant.

The property taken on the replevin writ consisted of eleven mortgage notes and seven Mexican and three Japanese bonds, alleged in the replevin affidavit to be worth about $40,000. The bond sued on was for $80,-000.

A nonsuit was taken in the replevin case, and a writ of retorno was issued, and was returned, reciting a demand for the property taken under the writ and a refusal to comply therewith. A breach of the bond by failure to prosecute the said replevin suit is not questioned. The real issue at the trial was as to the amount of damages sustained, which depended on the ownership of the replevied securities and their value. The court (a jury being waived) found the issues for appellant, rendering judgment in debt for $80,000, and assessing damages at only $1,452.51, the value of one of said notes.

Appellant complains of adverse rulings in the admission and rejection of evidence which we need not consider, for, regardless' of them, the contention that the court should have assessed damages to the full proven value of all the securities so replevied is clearly supported by a preponderance of evidence.

Appellees say that “plaintiff nowhere complains that the finding was contrary to the weight of the evidence,” and do not discuss the weight of the evidence, apparently because appellant has not argued the case in those express words. Appellant assigned as errors that the finding and judgment are contrary to the evidence, and that the amount of the finding and judgment, and the damages, are insufficient, and appellant’s analysis of the evidence and deductions therefrom as to the insufficiency of the damages clearly imply and involve the contention and conclusion that the court’s finding and judgment were against the weight of the evidence. That is the sum and substance of appellant’s argument, and it would be tailing short shrift of justice to disregard it because not couched in the express terms of the assignment of error appellees allude to. Appellees were content, without discussing the evidence, to rest their case on the reasoning of the trial court’s opinion announced at the close of the evidence and preserved in the record. We have carefully examined it, in connection with the evidence, and while we agree with many of its conclusions of law we note that it fails to give consideration to important and unimpeached testimony tending directly to confirm appellant’s claim as to the ownership of said securities.

The court’s opinion, thus adopted as appellees’ argument, treats Myra Barnes’ ownership as predi-, cated almost exclusively on the character of her possession, and ignores vital admissions of Erastus Barnes as to her ownership and his trust relationship to her. The evidence discloses these important facts: He was her brother; both were school-teachers, frugal and industrious, and lived together in close and affectionate association all their lives. He married appellee, Mary C. Barnes, about 4 months before his death, which took place January 7, 1909, in his 60th year. Myra was 5 years younger. It is unquestioned that for many years prior to his death he invested and reinvested her moneys, as well as his own, and kept and cared for her securities. These appear to have been placed and commingled with his own in a safety deposit box, that was kept in their joint name, where' they were found and taken out by the parties to the replevin suit, or their representatives, about one week after his death and examined. Among them then were the securities in question, which were afterwards, on August 19, 1910, taken from that box in execution of the replevin writ.

An order was given to the custodian the day . after the securities were so examined, signed by the attorjneys of Mary and Myra Barnes, respectively, that the box was not to be opened without the joint consent of said attorneys. She paid the rent for the box from May, 1909.

While appellee, Mary C. Barnes, necessarily recognized appellant’s actual possession of the securities in her replevin proceeding, she relied mainly upon prima facie evidence of title from such possession as the deceased had at the time of his death, and the court’s theory of the proof was that such possession was prima facie evidence of title in the deceased that was not changed by subsequent events.

But the court did not discuss the question of title, either from the point of view of admissions made by deceased with respect thereto, or as to his trusteeship, which evidence, unquestioned and unimpeached, overcame, in our judgment, whatever weight might be attached to the mere possession of deceased, and to the fact that he personally bought and paid over the money for said securities.

These admissions were made from time to time within the last 10 years of his life, to or in the presence of different persons, and as late as the autumn of 1907, just prior to his departure on a trip to the Hawaiian Islands and long after said securities had been purchased. In that year he told several persons that he had “always taken care of Myra’s affairs and invested her money and that she had now (1907) accumulated about $40,000 worth of bonds and mortgages besides other securities”; and just before he started on said trip he told a close associate that all the Mexican and Japanese bonds he had purchased were purchased for his sister, and that she was then worth over $50,000, and also told the cashier and bookkeeper of the firm through which the mortgage loans and sale of the notes were negotiated and which kept an account of them, some in the name of the deceased and some in the name of his sister as directed by deceased, that the very mortgage notes here in question and those referred to in both of said accounts belonged to his sister, “that her money was in them,” and in case of accident they were “to be turned over to her.”

These admissions were in rebuttal of the prima facie case of appellees, which rested upon the mere fact that Erastus Barnes personally negotiated and paid for said securities and retained posession of them as aforesaid, and they stand unrefuted.

If we disregard entirely the trust relation, and the commingling by him of his sister’s securities with his own without any distinguishing marks of ownership, and his apparent failure to render an accounting of his trust, still said undisputed and unimpeached admissions, which have the earmarks of verity, manifestly outweigh the mere prima facie proof of ownership in deceased and the fact of his personal purchase of the securities, relied on by appellees. Hence, we think the court should have found the ownership of the replevied securities to be in Myra Barnes and have assessed the damages according to their unquestioned value.

The values of said securities as stated in the affidavit of replevin and as confirmed by the account of said administratrix filed in the Probate Court, in which she charged herself with the collection of the same at such alleged values, aggregate $38,470, to which should be added interest at 5 per cent from the time of the replevin, namely, August 19, 1910. Said interest amounts to $17,680, making the total amount of damages $56,150. Accordingly judgment will be entered here in the usual form for $80,000, in debt, and $56,150 damages, together with the costs to be paid by the defendant, Mary C. Barnes, administratrix of the estate of Erastus A. Barnes, deceased, in due course of administration, the debt to be discharged on the payment of said damages and costs and interest thereon from the filing of this opinion.

Reversed with finding of fact and judgment here for $56,150.

Finding of fact. We find that the notes and bonds with their respective coupons described in the replevin bond sued on and replevied from the possession of appellant, Maria P. Barnes, August 19, 1910, were then the property of the latter and that their value when so replevied was $38,470, and that the damages in consequence of said breach amount with legal interest to $56,150.

Additional Opinion Filed on Petition for Rehearing.

Mr. Justice Barnes

delivered the opinion of the court.

In the petition for a rehearing it is urged for the first time that this being an action of debt where the amount claimed exceeds $1,000, the Municipal Court did not have jurisdiction of the cause. With this we do not agree. Included in eases of the first class over which that court is given jurisdiction by section 2 of the Municipal Court Act (J. & A. ¶ 3314), are “all actions on contracts, express or implied” when the amount claimed exceeds $1,000. Unless inconsistent with some other provision in the act, the phrase quoted must be deemed to include specialties as well as other forms of contract. The provision in said section classifying among cases of the fourth class actions on bonds, where the amount sought to be recovered does not exceed $1,000, does not, in our opinion, militate against such construction.

In support of the argument that the action of debt will not lie in a first-class case, we are referred to People v. Dummer, 274 Ill. 637, and Brown v. Gerson, 182 Ill. App. 177. The holding in each of these cases is that the suit before the court not being upon a contract, it did not come within the classification, “contracts, express or implied.” Neither decision is grounded on a want of jurisdiction because of the form of the action.

It will hardly be questioned that debt is one of the forms of action ex contractu, over which said court has jurisdiction without limit in amount claimed, and the appropriate form of action on a replevin bond. (Manning v. Pierce, 3 Ill. 4.) Section 3 of the Municipal Court Act (J. & A. ¶ 3315) expressly authorizes, in cases of the first class, the same form of pleadings in nse in similar cases in the Circuit Courts. We think, therefore, that the court had jurisdiction of the action, as one on a contract, and that it could be prosecuted under any appropriate form of action employed in Circuit Courts.

It is claimed that the recitals of fact in the judgment order are defective and not sufficiently full. Where we differ from the trial court as to facts, a finding upon those facts not in controversy is unnecessary. (Iroquois Furnace Co. v. Elphicke, 200 Ill. 411; Laughlin v. Norton, 267 Ill. 476.) The only fact in controversy here was as to the ownership of the property replevied. But there was none as to the value thereof, or the breach of the bond. So far, however, as the judgment order of this court refers to damages for the “wrongful taking” instead of said breach, the order will be modified.

Rehearing denied.


author: Mr. Justice Matchett

text:
    Wilhelmine Hough, Appellee, v. Commercial Wheat Growers Company et al., on appeal of Harry Fox, Wade Fetzer, Joseph J. Elias, George R. Wilson and Margaret H. Howell, Executrix of the last will and testament of C. D. B. Howell, Deceased, Appellants.
    Gen. No. 23,179.
    1. Appeal and error, § 369

      —when inconsistent theory of case may not he advanced on appeal. On appeal from a decree for complainant, in a suit against directors of a corporation for fraud and deceit in procuring the execution of a contract with their corporation, appellee’s contention that appellants should be held personally liable because they were acting as directors of a foreign corporation, doing business in the State without a license, cannot be sustained where it was not set up in the bill, no issue was made thereon and the case was not tried upon that theory.
    2. Corporations, § 313a

      —when directors participating in nonfeasance should be made parties in action by third person against other directors. On a bill against the directors of a corporation for fraud and deceit in procuring the execution of a contract between complainant and the corporation, if defendants are held liable for nonfeasance rather than misfeasance, they are entitled to contribution, and all of the participating directors should be joined as parties defendant.
    3. Corporations—when directors are liable to third person for fraud in obtaining property. As to a third person dealing with a corporation, the directors are merely agents -of the corporation, their liability being the same, and if they participate or assist, knowingly or recklessly without knowledge, in obtaining property by fraud or deceit, they are liable to an injured person who relies upon their representations.
    4. Corporations—when directors deemed to have participated in fraud in proeurance of contract. Directors who, after knowledge of the fraud and deceit practiced to secure the execution of a contract with their corporation, refuse the request of the other party to return the money paid under it, must be held to have participated in the fraud and deceit.
    5. Corporations, § 322

      —when contract between third person and corporations shown to have been procured by fraud and ratified by directors. On a bill against the directors for fraud and deceit in procuring the execution of a contract between complainant and the corporation, evidence held to support a finding that the execution was procured by fraud and deceit and that the representations were known to and ratified by defendants.
    6. Corporations, § 322

      —when authority of agent to act for directors in proeurance of contract is shown. On a bill against the directors for fraud and deceit in procuring the execution of a contract between their corporation and complainant, evidence held to show that the agent procuring the execution of the contract acted under authority from defendants, even though in so doing he substituted oral misrepresentations for written misrepresentations which he had been authorized to use.
    7. Corporations, § 322

      —when representations by directors to third person as to financial condition of corporation shown to be fraudulent. On a bill against directors for fraud and deceit in procuring the execution of a contract between complainant and their corporation, representations of defendants as to the financial condition of the corporation held to have been fraudulent and not a legitimate “puffing or boosting” of the corporation.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the March term,T917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 15, 1918.
    Joseph O. Morris and Gardner, Foote & Burns, for appellants; Band all W. Burns and John H. S. Lee, of counsel.
    Buell & Abbey, 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 Matchett

delivered the opinion of the court.

Appellants were the directors of a corporation organized in October, 1911, in the Dominion of Canada, under the Manitoba Joint Stock Company’s Act.' By the decree appealed from they were held jointly liable with said corporation for deceit and fraud in procuring the execution of a contract with appellee, and were directed to return to her the sum of $8,375 obtained by the corporation under the contract.

The defendant corporation did not defend against the charges of fraud and does not appeal from the decree.

Although a Manitoba corporation, the general offices of the company were in Chicago, Illinois, and its business managed there. It was never licensed to do business in the State. Its capital stock was $100,000, of which $67,000 was preferred and $33,000 common stock. The common stock was owned by Thomas C. Kelly and William D. Blatner, who were the president and secretary, respectively, of the corporation, and who agreed to pay the company for their stock by services to be rendered by them. The preferred stock was sold for cash at par and the proceeds paid into the treasury of the company.

Kelly and Blatner, prior to the organization of the company, made contracts for the purchase of certain lands in the Province of Saskatchewan, Canada, and these contracts were subsequently assigned to the company, of which Kelly was the moving spirit. The company bought other lands in the same province on contracts, by which it agreed to pay for the land partly in cash with deferred payments extending over a period of years. No deeds for any of the lands were delivered to the corporation.

On July 7, 1913, the corporation was engaged in the sale of these lands and in farming a portion of them. Appellants then and prior thereto were with said Kelly and one Thomas C. Moulding, the board of directors of the corporation. They actively took part in its business ; they met regularly for the purpose of considering the same; and they were actively in the control and management of its affairs.

The contract with appellee was made on that date. It was in writing and is in evidence. By its terms it was agreed that the corporation should sell and appellee purchase a one-half section of this Canadian land for the sum of $16,000, $8,375 of the purchase price to be paid in cash and the balance to be paid from appellee’s part of the crops which were thereafter to be grown upon the land.

The company agreed to cause the land to be broken up, cultivated and sown with grain upon the most approved methods of scientific farming, and to harvest, thresh and market the crops. From the net proceeds thereof, it was to retain 25 per cent and the remainder was to be applied to the payment of the unpaid portion of the purchase price of the land sold, with interest.

The contract also provided that the company should retain the control, management and right to cultivate the land until one year aftér payment of the purchase price. The company agreed to advance to appellee against her three-fourths of the crops, interest at the rate of 7 per cent per annum on the $8,375 in cash, which was paid by appellee upon the purchase price.

Appellee entered into negotiations which resulted in the making of this contract at the solicitation of B. H. Princell, a friend apparently, but in fact the agent of the defendant company. He introduced her to Kelly, the president. The negotiations were conducted at the Chicago office of the corporation. Appellee was induced to make the contract by reason of representations made by Kelly that the company owned the land free and clear of all incumbrances; that it was fertile, free from stones and ready for cultivation; that the directors of the corporation were men of high business and financial standing, and particularly that the corporation was financially able to carry out and perform all the terms and conditions of the contract.

Appellee was a widow whose husband died in November, 1911. She was inexperienced in business. She received from her husband’s estate property to the value of $70,000. The income therefrom was her only means of support. She relied upon these representations. She did not see the land, nor make investigation in her own behalf.

The representations were false. The company did not have title to the land. It was in a semiarid region where the production of crops was not certain, but on the contrary, very uncertain. It was not free from stones, but on the contrary required the expenditure of large amounts for labor in removing the stones therefrom, and most important, the corporation was not financially able to carry out the contract with appellee, but was insolvent on the day the contract was made and had been insolvent prior thereto. A few months thereafter on a petition in which appellants joined, it was placed in the hands of a receiver by the courts of Canada and adjudged insolvent.

Appellants contend that the facts are not sufficient to prove fraud and deceit as to them personally. They claim that, if they are liable, it is only by reason of nonfeasance, and that the decree should therefore be reversed because it does not include Kelly and Moulding, who on that theory of the case would be jointly liable with them and from whom they would be entitled to contribution.

Appellee contends that the facts establish liability in an action for misfeasance, not simply nonfeasance, and say that there can therefore be no contribution. Also relying on Joseph T. Ryerson & Son v. Shaw, 277 Ill. 524, appellee argues that appellants should be held personally liable because they were acting as directors of a foreign corporation, doing business in Illinois without a license from the State. This last contention, we think, cannot be sustained for the reason that no such cause of action appears to be set up in the bill of complaint, nor was issue made thereon, nor the case tried upon that theory. Longley v. Wilk, 171 Ill. App. 419.

We think it may further he conceded to be true that if. appellants are held liable in this case for nonfeasance, rather than misfeasance, then although liable they would be entitled to contribution from each other, and it would, therefore, have been necessary to join all the directors participating. Wallach v. Billings, 195 Ill. App. 605. The case, however, is not one for nonfeasance. The decree finds:

“That the execution of the said contract by the said complainant, and the payment by her of the said sum of $8,375 was procured by fraud, which was known to or should have been known by the said defendants * * *; that the said last named defendants knew, or should have known that the said defendant company, in its then insolvent condition, could not have procured the execution of said contract and the payment of the said money by said complainant, except by representations to her that were false and untrue, and for which the said, last named defendants * * * as directors of said defendant company were directly liable and responsible.”

These findings of the decree are entitled to great weight. We have no right to set them aside unless they are clearly and manifestly wrong.

We have examined the evidence. We think it warrants the implication of intentional and conscious wrongdoing by these directors. As we understand the law, appellants, as directors of the corporation as to third parties, are simply agents of the corporation. Their liability to such parties is precisely that of any other agents. If they with knowledge, or recklessly without it, participate or assist in obtaining property by fraud or deceit, they are liable to the party injured who relies upon such representations.

At the time this fraud was consummated, appellants were the board of directors actively engaged in the affairs of the corporation. The business was not so large and extensive as to make it unfair to presume that there was some knowledge on their part of the transaction in question. The written record of their meetings and proceedings during the time of the negotiations with appellee are not in evidence. It appears that this important record had passed into the control of the courts of Canada in the insolvency proceedings. Apparently it was placed there with the consent of appellants, or some of them.

In the absence of this record there is oral evidence which tends to prove their misfeasance. Mrs. Hough was not able to pay for the amount called for by the contract in cash, but certain stock in a meat-cutter company was offered by her in lieu thereof. Kelly, prior to making the contract, took this matter up with some of appellants and it appears that a few days after the making of it, the board of directors, by affirmative action, consented to and ratified his action in inserting this provision in the contract.

In the same manner some of appellants were informed as to appellee’s necessities in the way of a guaranty of the payment of interest at 7 per cent upon the part of the purchase price which she was to advance in cash. This was not a provision in the usual form of contract. It also was put up to appellants acting as the board of directors of the corporation and the consent of the corporation was obtained through their actions.

Again there is uncontradicted evidence in the record that a few weeks after this money was obtained from appellee, her attorney laid the whole matter before the defendants and asked that they return at least in part the money which had been obtained from his client. This with full knowledge of all the circumstances, they declined to do. Appellants, therefore, by their affirmative action in refusing to return this money, with full knowledge ratified and approved the transaction as carried through. They must, therefore, be held to have participated in the undenied fraud perpetrated in the name of the corporation.

The most harmful misrepresentation was that made as to the financial condition of the company. It must have been clear to any one that if the corporation was insolvent, or even in financial difficulties, appellee’s contract would be of little value to her, and most of the benefits which she was supposed to obtain under it could never be received and the money paid lost.

Appellants had knowledge of the financial condition of the company. They knew its inability to carry out the contract. It had been refused credit. Suits for unpaid bills were threatened and the company had, in fact, been for months insolvent.

The attention of appellants had been directed to the financial condition of the company and an audit made March 31st prior to these negotiations. Appellants say they cannot be held responsible for the reason that this audit of the company’s books was made by a reputable and capable firm of certified public accountants and that it showed the company to be in a solvent condition.

The financial condition of the corporation, however, was a matter to be determined from analyzing the report, rather than from the balance as shown by it. It was not the figures, but the facts underlying the figures, which would determine that question. These facts were the things which the directors of the corporation knew, or, being in active control of the business, were presumed to know. The auditing committee did not have such knowledge.

It is also to be noted that the representation upon which appellee relied amounted to a statement not only that the corporation was solvent, but more than solvent.

Appellants say that the evidence fails to prove authority from them to Kelly to malee the oral representations by which appellee was induced to part with her money. No one of appellants talked with appellee prior to the making of the contract; they did not know her personally, nor did she know them personally. Does the evidence show that Kelly had authority from appellants to make these false representations ? We think it does.

There appears in the evidence certain pamphlets, pictures and literature which for about 2 years had been used by agents of the company in making sales of its lands. There is evidence in the record proving that appellants had knowledge of this literature and the use to which it was put. This appears from an examination of the additional abstract of the record filed by appellee. In one of these pamphlets, complainant’s exhibit “4,” appears the names of each of appellants with a single exception. It was used by their authority.

The examination of these pictures and literature shows that with the possible exception of title, every other misrepresentation upon which appellee relied is contained therein. The evidence shows that this literature, etc., was used by Kelly at the time of negotiating the contract in question. He handed it to appellee, but her eyesight was poor and she did not read it. Under these circumstances we think appellants cannot be heard to deny their authorization of the false representations and their responsibility for them, at least in so far as they were similar to the written misrepresentations which were contained in this literature. As we view it, they authorized the agents of the company to make these misrepresentations in writing, and the directors who so authorized them cannot escape liability because, by reason of a partial blindness of the person to whom the representations were made, the agent substituted for the written, similar oral misrepresentations.

Appellants say that assuming the directors knew the contents of these writings, that no “misrepresentations other than boosting and puffing were contained therein.” The literature was evidently carefully prepared for the purpose of avoiding direct representations of fact, yet the effect of the whole of it was to convey such false representations.

As the question of the financial condition of the company was the most important representation, we quote as bearing on that subject this excerpt from the pamphlet labeled, “Wealth from Wheat” under the heading of “Safety and Income:” “Safety and Constant Income are the primary factors to be considered in the investment of Savings Funds. The Unit System of Wheat Land Ownership provides a safety and stability that could scarcely be excelled. For each Unit represents a fixed number of acres of actual land —that business depression cannot shrink, fire destroy or winds blow away. It represents the most productive of land—land adapted by nature to the most profitable of crops. It represents land cared for and cultivated by a permanent organization, that neither death nor disability can affect, that adversity cannot handicap—that works unflaggingly day in and day out because it is a corporation and not a man. * * * Invest in Wheat Land. Invest now while you can. Invest under the system that provides you profits while it relieves you of the entire risk and responsibility.”

There is something of legitimate “puffing and boosting” in this literature, yet we think the characterization of this corporation as a “permanent organization, that neither death nor disability can affect, that adversity cannot handicap” at least implies the statement as a fact that it is in a solvent financial condition.

We think these directors were guilty of conscious wrongdoing in taking appellee’s money at a time when they, to say the least, knew that the financial condition of the corporation was precarious. We "think they were again guilty of conscious wrongdoing when with full knowledge of the situation they refused to return to appellee even a part of the money which had been wrongfully taken from her. Neither in morals nor, as we think, in law can they escape responsibility. Our views are sustained, as we think, by the following authorities: 2 Thompson Corporation (2nd Ed.), par. 1301; Donovan v. Purtell, 216 Ill. 629; Edgington v. Fitzmaurice, L. R. 29 Ch. Div. 459; Morgan v. Skiddy, 62 N. Y. 319; Meyerhoff v. Tinslar, 175 Ill. App. 29; Miller v. John, 208 Ill. 173; Hubbard v. Weare, 79 Iowa 679.

The decree of the Superior Court will be affirmed.

Affirmed.


text:
    Henry Ades Fowler, Administrator of the Estate of Henry Patkin, Deceased, Plaintiff in Error, v. S. Cohen, Defendant in Error.
    Gen. No. 23,672.

    1. Executors and administrators, § 612a

      —right of administrator de son tort to sue. An administrator de son tort may institute an action at law.
    2. Executors and administrators—when acts of administrator de son tort validated. Letters of administration granted to an administrator de son tort usually relate back to the death and validate acts of the administrator prior to their issuance.
    3. Executors and administrators—what acts of administrator de son tort validated by letters of administration. Acts done by an administrator de son tort which are of benefit to the estate and prevent the running of the statute of limitations are validated by the subsequent issuance to him of letters of administration.
    4. Executors and administrators, § 23

      —letters of administration as evidence of administrators right. Letters of administration are not the foundation of the administrator’s right, but are merely evidence of that right.
    5. Death, § 30

      —what is nature of statutory requirement for bringing action for within one year. The time fixed for bringing an action for personal injuries under Hurd’s Rev. St. ch. 70, secs. 1, 2 (J. & A. ¶¶ 6184, 6185), is not a statute of limitations, but is a condition of the liability, and operates as a limitation of the liability itself and not of the remedy alone.
    6. Death, § 30

      —what does not bar running of statute relating to time of commencement of action for. Under the Personal Injuries Act (Hurd’s Rev. St. ch. 70, secs. 1, 2, J. & A. ¶¶ 6184, 6185), which creates a right of action unknown to the common law and provides that suit must be brought “by and in the names of the personal representatives” within a period of one year, suit must be brought by such representative within the time fixed, and the institution of suit by an administrator de son tort within that time is not sufficient to bar the running of the statute, even though letters of administration were issued to him after the year had expired.
    7. Pleading, § 229

      —when judgment for defendant on pleadings is proper. Where the demurrers to replications to pleas raise questions going to plaintiffs right to maintain the action, and it is made to appear that although there may be other issues oí fact, upon the whole case, plaintiff has no cause of action, judgment may be entered for defendant on the pleadings without a trial upon the issues.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed October 15, 1918.
    Rehearing denied November 26, 1918.
    Samuel J. Andalman, for plaintiff in error; Jacob Allen Cohen, of counsel.
    Holt, Cutting & Sibley, for defendant in error; William D. Bangs, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.

On April 8, 1912, plaintiff in error brought suit against defendant in error in the Circuit Court of Cook county, Illinois, in an action on the case under the statute for the benefit of the next of kin on account of alleged negligence which caused the death of his intestate, a minor 19 years of age.

The declaration was in eighteen counts. To this declaration the defendant pleaded the general issue and the statute of limitations, and also filed special pleas which denied that the plaintiff was, or ever had been, duly appointed administrator of the estate of the deceased, and denied his right to maintain the action as such administrator.

Plaintiff replied to these pleas setting up matters by reason of which he alleged he was not barred, to which defendant filed general and special demurrers, which were sustained, and judgment for defendant against plaintiff for costs was entered upon the pleadings. The errors assigned are that the court sustained the demurrers and that it entered judgment against the plaintiff.

The facts disclosed by the pleadings are that plaintiff’s intestate was injured April 5, 1911, and from these injuries died on May 8th of the same year; that suit was begun by plaintiff in error on April 8, 1912, as administrator, to recover damages for these injuries and the declaration filed September 18th thereafter; that plaintiff had not at the time of beginning the suit been appointed administrator of the estate of the deceased, but had without authority from the court proceeded to administer upon it and became an administrator thereof de son tort; that more than one year after the death of the deceased, to wit, on the 25th day of November, 1912, the plaintiff was duly appointed administrator of the estate by the Probate Court of Cook county. The question is whether, upon these undisputed facts, he was entitled as administrator to maintain the suit.

Plaintiff in error was an administrator de son tort, and such an administrator may institute an action at law. Hatch v. Proctor, 102 Mass. 353; Alvord v. Marsh, 94 Mass. [12 Allen] at 604; Riley v. Loughrey, 22 Ill. 99; In re Farrell’s Estate, 1 Tuck. Surr. (N. Y.) at page 111. When letters of administration are granted to an administrator de son tort, they will usually relate back to the death of the deceased and validate all prior acts of such administrator. Alvord v. Marsh, supra; Hatch v. Proctor, supra; Doyle v. New York, O. & W. R. Co., 66 N. Y. App. Div. 398, 72 N. Y. Supp. 940; Rohn v. Rohn, 98 Ill. App. 514; Chicago Title & Trust Co. v. Wheeler, 119 Ill. App. 516; Globe Accident Ins. Co. v. Gerisch, 163 Ill. 631. These authorities further establish the doctrine as contended for by plaintiff in error that all acts done by such an administrator which are of benefit to the estate, and which prevent the running of the statute of limitations, are made valid by the subsequent issuance of letters of administration. The letters of administration are not the foundation of the administrator’s right, but are merely evidence of that right.

If the only question involved in this case was one which related to the plea of the statute of limitations, these rules of law would possibly be controlling. The pleadings, however, disclose that the action is one under the Personal Injuries Act, Hurd’s Rev. St. ch. 70, secs. 1, 2 (J. & A. ¶¶ 6184, 6185), and it has been held by this" court in Chicago Bridge & Iron Co. v. La Mantia, 112 Ill. App. 43, and recently by the Supreme Court of the State in Carlin v. Peerless Gas Light Co., 283 Ill. 142, that the time fixed for bringing an action under the Injuries Act is not a statute of limitations, but, on the contrary, is a condition of the liability and operates as a limitation of the liability itself and not of the remedy alone.

Since the Injuries Act creates a right of action unknown to the common law, and as a condition to the right of action provides that the suit must be brought “by and in the names of the personal representatives” within the period of one year after the death of the person injured, it follows that if at the end of one year from the death of the deceased no suit has been brought by the personal representatives, the cause of action ceases to exist.

In this case suit was instituted within one year, but it was not instituted by the personal representative of the decedent. On the contrary it was a suit brought by one who wrongfully intermeddled with the assets of the intestate, and who had no right or authority to do so. When the year expired, the right of action ceased to exist. Authority thereafter acquired could not revive it.

To so hold would be an unwarranted extension of the doctrine of title by relation. It is admitted that this is a case of first instance and that no authority directly in point is to be found in the books, but a question analogous thereto has, we think, been decided in the case of Hall v. Southern Ry. Co., 149 N. C. 108, 62 S. E. 899. The statute of North Carolina, like that of Illinois, made the cause of action conditional upon the personal representative suing within one year from the death of the intestate. Plaintiff, a foreign administrator, sued under the statute within the year, hut it was held he could not recover without taking out letters in North Carolina. He took out such letters after the expiration of the year, hut it was held this was too late and that the cause of action was barred.

Appellant further argues that it was error for the court to enter judgment against the plaintiff; that he. was entitled to a trial upon the issues. The demurrers to the replications to these pleas raised a question which went to the right to maintain the action, and judgment thereon was proper for the reason that it was made to appear that although there might be other issues of fact, upon the whole case, plaintiff had no cause of action. Weiss v. Binnian, 178 Ill. 241.

The judgment of the trial court will he affirmed.

Affirmed.