text:
    The People of the State of Illinois, Defendant in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error.
    1. Master and servant—what businesses required to furnish sanitary wash rooms for employees. Section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)], providing that “every owner or operator of a coal mine, steel mill, foundry, machine shop, or other like business in which employees become covered with grease, smoke, dust, grime and perspiration, to such extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public, shall provide and maintain a suitable and sanitary wash room,” applies not only to employments named in the act but to all other like businesses of an established or permanent character in which the employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public.

      2. Master and servant—what is purpose of statute relating to providing of wash rooms in industrial plants. The purpose of section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)], relating to the providing of wash rooms in industrial plants, is to promote the health and welfare of employees in the specified lines of employment, where the conditions are such that employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing, their bodies and changing their clothing will endanger their health or make their condition offensive to the public, so that every facility should be afforded for cleanliness and to provide for the comfort and welfare of those with whom persons employed in such places come in contact after leaving their places of employment.
    3. Master and servant—what are questions for jury in prosecution of railroad for failure to furnish wash rooms in or near roundhouse. In a prosecution of a railroad company under sections 184, 185, 186, 187, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶¶ 5417(33), (34), (35), (36)], for failure to provide suitable wash rooms in or near its roundhouses for the roundhouse employees, questions for the jury were presented as to whether the roundhouse and the business therein conducted was a place and business where the employees “become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing would endanger their health or make their condition offensive to the public,” and, if so, whether defendant maintained there a “suitable and sanitary wash room at a convenient place in or adjacent to” such place of business, “provided with lockers in which employees may keep their clothing”, and “provided with hot and cold water and with sufficient and suitable places and means for using the same.”
    4. Master and servant—when shown that railroad failed to comply with statute as to providing wash rooms. Evidence held sufficient to show that a railroad company was guilty of failure to provide suitable wash rooms for the employees of its roundhouse as required by section 184, ch. 48, Hurd’s Rev. St. [Callaghan’s 1916 St. Supp. ¶ 5417(33)].
    Error to the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.

      George B. Gillespie, for plaintiff in error; Bearick & Meeks and F. L. Littleton, of counsel.
    John H. Lewman, for defendant in error; Samuel Levin, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

Sections 184, 185, 186 and 187 of chapter 48, Hurd’s Rev. St. of 1917 [Callaghan’s 1916 St. Supp. ¶¶ 5417(33), (34), (35), (36)], are as follows:

“Sec. 184. That every owner or operator of a coal mine,' steel mill, foundry, machine shop, or other like business in which employees become covered with grease, smoke, dust, grime and perspiration to such extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public, shall provide and maintain a suitable and sanitary wash room at a convenient place in or adjacent to such mine, mill, foundry, machine shop or other place of employment for the use of such employees.
“Sec. 185. Such wash room shall be so arranged that employees may change their clothing therein, and shall be sufficient for the number of employees engaged regularly in such employment; shall be provided with lockers in which employees may keep their clothing; shall be provided with hot and cold water and with sufficient and suitable places and means for using the same; and during cold weather, shall be sufficiently heated.
“Sec. 186. It shall be the duty of the State and county mine inspectors, factory inspectors and other inspectors required to inspect places and kinds of business required by this act to be provided with wash rooms, to inspect such wash rooms and report to the owner or operator, the sanitary and physical condition thereof in writing, and make recommendations as to such improvements or changes as may appear to be necessary for compliance with the provisions of this act.
“Sec. 187. Any owner or employer who shall fail or refuse to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars. ’ ’

Plaintiff in error was charged with having violated this statute by operating a roundhouse at Lyons, in Vermilion county, said to be a place coming within the provisions of section 184 above quoted, without providing suitable rooms, properly equipped for the purposes mentioned in sections 185 and 186, also above quoted.

The case was tried in the Circuit Court on appeal from a justice of the peace, where the summons was issued on complaint of a deputy state factory inspector. Plaintiff in error was found guilty by the verdict of a jury and was adjudged'to pay a fine of $50. Plaintiff in error claims that the verdict and judgment are not sustained by the evidence.

The Supreme Court has held that the statute above quoted applied not only to the employments named in the act but to all other like business of an established or permanent character in which the “employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or malee their condition offensive to the public, ’ ’ and that the purpose of the law was to promote the health and welfare of employees in those lines of employment where the conditions are such as above stated so that every facility should be afforded for cleanliness and to provide for the comfort and welfare of those with whom persons employed in such places come in contact after leaving their places of employment. People v. Solomon, 265 Ill. 28, 33, 34. It was also-held in that case that this law was not ambiguous or uncertain. If that is true, as it is, then the owner or operator of any business coming within the terms of the law must furnish “suitable and sanitary wash rooms at a convenient place in or adjacent to” such place of employment for the use of such employees, which rooms must be, besides other things, provided with hot and cold water and “with suitable places and means for using the same.” Suitable “places and means” as there used has no reference to the room or rooms which must be provided, but to the equipment of those rooms with suitable “places” where the employees may use the water furnished for the purpose of “cleansing their bodies.”

Whether or not the roundhouse in question and the business there conducted was a place and business where the employees “become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition after leaving their work without washing and cleansing their bodies and changing their clothing will endanger their health or make their condition offensive to the public,” and, if so, whether plaintiff in error maintained there “a suitable and sanitary wash room at a convenient place in or adjacent to” such place of business, “provided with lockers in which employees may keep their clothing,” and “provided with hot and cold water and with sufficient and suitable places and means for using the same,” were all questions of fact to be determined by the jury.

The evidence in this record clearly shows that plaintiff in error is a railroad corporation; that it maintains a roundhouse ¿t Lyons, in Vermilion county, Illinois ; that this roundhouse contains twenty-five stalls constructed to be used for keeping locomotive engines; that twenty-three of these stalls are used for that purpose and two of them are used as a machine shop; that from twenty to thirty locomotive engines are in this roundhouse daily, or nearly a thousand engines per month; that each of these locomotives has an engineer and a fireman with it when it is brought into this roundhouse; that there are around this roundhouse constantly other men employed, known as oilers, supply men, hostlers, firing up men, boiler washers, boiler makers, machinists and machinists ’ helpers; that there are an average of fifty such men in the summer and sixty in the winter employed in this roundhouse; that all of these men unavoidably get more or less grease, dirt, coal smoke and dust and grime mixed with perspiration on their hands, faces, bodies and clothes while they are at work; that most of the men change their clothes at the "roundhouse and wash up after quitting work and before they go home; that some of them go home just as they quit work; that when the engine men change their clothes, they do it in the engine cabs and when the other men change their clothes they do it in the part of the roundhouse known as the machine-shop ; that there are about eighty lockers in and about this roundhouse, but there “are no wash rooms or washing privileges constructed for that purpose”; that each man has a wash bucket that holds about two gallons of water; and that each stall is fitted with a water system for use in caring for the engines, and the workmen have the right and it is their custom to go to some of these places and get water, either hot or cold as they choose, in their wash buckets and take it away with them to wash themselves.

After the jurors were properly instructed as to the law in the case and as to their rights and duties, they returned their verdict of guilty. We have carefully studied the evidence in this record and find that the guilt of plaintiff in error is not only clearly shown by it, but that it is shown beyond all reasonable doubt. In other words, the evidence leaves in our mind no reasonable doubt that the roundhouse and the business there conducted comes within the provision of the statute quoted, and that no such room so equipped as is required by that statute for the purposes therein specified was maintained by plaintiff in error in or adjacent to that roundhouse.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Andrew J. Ruble, Plaintiff in Error, v. John Cohn, Defendant in Error.
    1. Malicious prosecution, § 9

      —what is an essential to be proven in action for. One of the essential things to he proven in an action for malicious prosecution is that there was no probable cause for the proceeding that was claimed to be malicious.
    2. Malicious prosecution, § 29

      —when elements of probable cause are admitted by compromise of criminal case. By the compromise of a criminal case for obtaining, a stock of goods by use of the confidence game, by which the defendant is to be discharged from custody and the owner obtains bis stock of goods, the rightfulness of the charge made the basis of the prosecution is acknowledged, the elements of probable cause for the arrest are virtually admitted, and the basis of a suit for malicious prosecution is wanting.
    Error to the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Tempt,eman & Templeman and Thomas F. Smith, for plaintiff in error.
    John G. Friedmeyer, for defendant in error; Barber & Barber, of counsel. •

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

   Mr. Justice Graves

delivered the opinion of the court.

John Cohn, the defendant in error, had Andrew J. Ruble, the plaintiff: in error, arrested and lodged in jail on the charge of being guilty of the crime known as “confidence game,” through which Cohn claimed he had lost a stock of goods. While Ruble was in jail on the charge, he employed a lawyer to look after his interest. The lawyer, with Ruble’s consent, proposed to Cohn a compromise of the difficulty to the end that Ruble might be discharged from jail by agreement and Cohn have back his stock of goods. The details of the compromise are not important to the determination of the questions here involved. It is enough to say the compromise was consummated, both the parties to this suit being fully advised about and consenting to the terms thereof. As a result Cohn got back his goods and Ruble was discharged from custody. Thereafter Ruble began this suit for false imprisonment. After he had introduced all his evidence in chief, the court instructed the jury to find Cohn not guilty, which was accordingly done. In giving this instruction the court committed no error.

One of the essential things to he proven in a suit for malicious prosecution is that there was no probable cause for the proceeding that is claimed to have been malicious. By the compromise of such a suit the rightfulness of the charge made the basis of it is acknowledged, the elements of probable cause for the arrest are virtually admitted, and the basis of a suit for malicious prosecution is wanting. Ruehl Bros. Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392. A dismissal of a suit by compromise is not equivalent to the acquittal which must precede an action for malicious prosecution. Leyenberger v. Paul, 40 Ill. App. 516-522. No recovery can be had in an action for malicious prosecution where the same comes to an end through a compromise between the parties. Rosenberg v. Hart, 33 Ill. App. 262. The cause that in this suit is said to have been maliciously prosecuted came to an end through a compromise, and, besides that, the compromise was such that the property which Cohn claimed had been taken from him by use and by means of the confidence game was voluntarily restored to him. That in itself was an admission of probable cause for the charge made.

There was no error in giving the peremptory instruction. The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Nora Palmeter, Appellee, v. Court of Honor, Appellant.
    1. Insurance—when shown that deputy and officers of local court knew true occupation of insured. In an action on a mutual benefit certificate, in the application for which certificate it was stated that insured was a stationary fireman, and in which the defense was that deceased was engaged in the prohibited employment of electric lineman, evidence held sufficient to show that the deputy who took the application and the officers of the local court knew the true occupation of insured to be that of electric lineman.
    2. Insurance, § 726

      —when knowledge of local court is chargeable to insurer. A local court of a mutual benefit society is the agent of the head society, and the knowledge of the local organization of the true occupation of the insured is chargeable to the insurer.
    3. Insurance, § 793

      —when right to refuse to issue or to cancel certificate is waived. When a cause exists why a certificate of insurance should not issue to a proposed member of a mutual benefit society, or why after it has been issued it should be canceled and that cause is known to the society, or its subordinate lodge or court, and notwithstanding that cause and the knowledge of it the certificate is issued and is not canceled, but the society continues to collect, receive and keep dues paid by or for the holder of such certificate, and the same is treated as in full force, the causes which might have justified a refusal of the application in the first place or a cancellation of the certificate later on must b.e regarded as waived after the death of the member and the presentation of the certificate by the beneficiary for payment.
    4. Insurance, § 852

      —when compromise settlement of valid claim on mutual benefit certificate not binding. A compromise settlement of a valid claim on a mutual benefit certificate is not binding where an adjuster represents that the certificate is void and uncollectible for the purpose of obtaining an unconscionable advantage of the beneficiary and the representations by the adjuster are not true nor made in good faith, and the amount of the settlement is only 35 per cent of the face of the certificate.
    5. Insurance, § 852

      —what is badge of fraud of controlling force in determining whether release is binding. Where an insuranee adjuster representing a mutual benefit society procures a compromise settlement for 35 per cent of the face of a.benefit certificate from the beneficiary, an ignorant woman, on the false representations that the certificate is void and uncollectible, while the disproportion between the amount given and the amount actually due may not be sufficient to warrant the cancellation of the release given, it is, under the circumstances, such a badge of fraud as to be of controlling force in determining whether the release is binding.
    6. Insurance, § 852

      —when jurisdiction retained to compel payment of balance after cancellation of release. In an action on a mutual benefit certificate, where the court took jurisdiction of the case to adjudicate the question of whether a release, effected as the result of a compromise, was binding or not, and determined that it was not so, it rightfully retained jurisdiction of the case to adjust the entire difference between the parties in the matter of the insurance, and properly ordered the payment of the balance found due on the certificate.
    Appeal from the Circuit Court of McDonough county; the Hon. - Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    William B. Risse, Ira J. O’Harra and O’Barras, Wood & Walker, for appellant.
    Scofield, Helfrich & Califf, 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 Graves

delivered the opinion of the court.

Appellant is a fraternal benefit society with subordinate bodies known as District Courts. One of these District Courts was located at Bushnell, a city of less than 3,000 inhabitants. Walter Palmeter, now deceased, was the husband of appellee. He died June 28, 1916. He had lived in Bushnell all or nearly all of his life. He was killed while doing the work of a lineman as an employee of the Central Hlinois Public Service Company. At the time of his death, and for 7 years before that time, he held a certificate of membership issued by appellant which provided for the payment to his wife, the appellee, of $1,000 at his death. His dues were all paid, and he was in good standing in the order. After proof of death had been made, an adjuster for the company went to appellee, represented to her that the certificate was void, gave her $350, and she executed a release in full of her claim against appellant and surrendered to it the certificate of membership of her husband. Later, she filed her bill charging that the settlement she had made with the company was procured by fraud and misrepresentations of the adjuster; that the certificate was valid; that she was entitled to be paid by appellant $1,000 on that certificate, and praying that her receipt and release be canceled, and that appellant be required by the decree of the Circuit Court to pay her $650 more than she had already received. The cause was referred to the master, who took the proof and reported as Ms conclusion that appellee was entitled to the relief prayed. The master’s report was in all respects approved by the court, and a decree was entered following the prayer of the bill.

The basis of the claim of appellant that this decree should be reversed is that deceased had changed Ms employment since he became a member of the society and was at the time of Ms demise engaged in a proMbitéd employment. There is no doubt but that he was at the moment of Ms death engaged in the work of a lineman; that such employment is prohibited by the rules of appellant society, or that it is stated in his application for membership, upon which the certificate in question was issued, that he was employed as a stationary fireman. Appellee insists that whatever his employment was at the time of his death, it was identically the same as it was when he applied for membership in the society and was accepted as such, and when the certificate was issued; that at the time of his death and for 20 years before, including the time he applied for membership in appellant society, and when he was accepted as such, he was all the time employed at the local electric light plant doing whatever work was to be done; that his work included firing the boilers, running •the engine and dynamo, attending to street lights, connecting up stores and residences with the plant and stringing wires. In fact he was a general utility man, capable of doing and in fact performing all the duties that were required in and about an electric light plant, including the duties of lineman; that the deputy who solicited his application and who wrote in it the statement that he- was employed as a stationary fireman knew all about where he was employed and what the duties of his employment required him to do; that the officers who accepted his application and issued his certificate and collected his dues knew him personally when they did so and knew all about where he was employed and what he was doing. The evidence fully sustains the contention of appellee as to the facts. One witness testified that the deceased “was the best known man in Bushnell. Every man, woman and child from 10 years up knew Walter Palmeter”; that his work took him all over town, on the streets, at the street intersections, on the premises of the people “and all around,” and that his work was in view of the people. Members and officers of the local court of appellant at Bushnell testified that at the time he was received into the society and when his certificate was issued and when he paid his dues they knew all about him and how he was employed, and their testimony is reasonable and believable in view of the size of the town in which he had worked for 20 years at the same employment. The deputy who took his application, and one or two persons who have filled some of the offices of the local court, undertook to deny knowledge that he worked as a lineman, but the decided weight of the testimony is against them.

The local court at Bushnell was the agent of appellant. What was known to the Bushnell court must be regarded as known to appellant. Appellant therefore knew when the deceased was accepted as a member, when the certificate of membership in question was issued and when the dues thereon were received, that part of the work of the deceased was that of a lineman.

When a cause exists why a certificate of insurance should not issue to a proposed member of a mutual benefit society, or why after it has been issued it should be canceled, and that cause is known to the society or its subordinate lodge or court, and notwithstanding that cause and the knowledge of it the certificate is issued and is not canceled but the society continues to collect, receive and keep dues paid by or for the holder of such certificate, and the same is treated as in full force, the causes that might have justified a refusal of the appEcation in the first place or a cancellation of the certificate later on must be regarded as waived after the member has died and the beneficiary presents the certificate for payment. Order of Foresters v. Schweitzer, 171 Ill. 325; Coverdale v. Royal Arcanum, 193 Ill. 91; Love v. Modern Woodmen of America, 259 Ill. 102.

The proof shows that when the adjuster of appellant procured the release from appellee he told her the certificate was void and that she could not collect anything on it. She was an inexperienced woman in great distress of mind due to her husband’s recent sudden death, and she believed him and accepted the $350 on the theory that the certificate was void.

When representations of this character are made for the purpose of obtaining an unconscionable advantage of a party in the settlement of a valid claim and are not true nor made in good faith, the settlement will not be upheld. Walker v. Shepard, 210 Ill. 100.

There is still another circumstance that must be considered and that is that while the disproportion between the amount given and the amount actually due might not be sufficient to warrant the cancellation of the release given, it is, when taken in connection with the other facts in the case, such a badge of fraud as to be of controlling importance in determining whether the release is binding. Walker v. Shepard, 210 Ill. 100-114.

The amount paid was grossly inadequate, the representation made by the adjuster that the certificate was void was not true, and he knew it, it was not made in good faith, nor was the $350 paid in settlement or adjustment of a doubtful claim, and the settlement is not binding on appellee.

The court having taken jurisdiction of the case to adjudicate the question of whether the release is binding or not, and having determined that it is not so, rightfully retained jurisdiction of the case to adjust the entire difference between the parties in connection with the matter of insurance, and properly ordered the payment of the balance found due on the certificate in question. Waterstrow v. National Americans, 183 Ill. App. 82.

The decree of the Circuit Court is affirmed.

Decree affirmed.

Mr. Justice Waggoneb took no part in the consideration of this case.


text:
    J. J. Jobst, Appellee, v. City of Danville, Appellant.
    1. Building and construction contracts, § 65

      —when contract construed as providing that decision of city engineer is final. A contract for the construction of a bridge and approaches for a city providing that the decision of the city engineer upon all questions left to his discretion shall be final and conclusive, that all material furnished by the contractor shall be subject to the inspection and approval of the engineer, that the engineer shall have power to condemn all work which in his opinion is not done in accordance with the contract and specifications, that the decision of the engineer shall control as to the interpretation of the plans and specifications, must be construed as providing that all questions as to whether the materials furnished or the work done were according to contract were to be finally and conclusively determined by the engineer.
    2. Building and construction contracts, § 60

      —when provision in construction contract as to finality of decision of city engineer is binding. A city bridge construction contract, providing that the decision of the city engineer shall be final on questions as to whether the materials furnished or work done were according to contract, is legitimate and binding.
    3. Municipal corporations, § 412

      —when evidence that paving work was not constructed according to contract is inadmissible. In an action against a city by a bridge contractor to recover for the part of concrete paving work done on the bridge approaches before rescission of the contract, evidence that the paving work was not constructed according to contract was inadmissible where the contract provided that the decision of the city engineer should be final on the questions whether the materials furnished or work done were according to contract.
    4. Building and construction contracts, § 65

      —when decision of city engineer that concrete work done on bridge approach is properly done is final. The decision of a city engineer that the concrete work for the pavement of approaches to a city bridge was properly done is final, where the contract with the city provides that all questions as to whether materials furnished or work done are according to contract shall be finally and conclusively determined by the city engineer.
    5. Damages, § 66

      —what is measure of when performance of construction contract prevented by city. Where the performance of a city bridge construction contract has been prevented by the city and the work up to that time has been in compliance with the contract, and there is nothing in the contract by which the compensation for the part performed can be determined, the measure of damages is the reasonable value of the work done and the material furnished.
    6. Municipal cobpobations, § 412

      —when evidence as to reasonable value of work done under bridge construction contract is admissible. In an action by a city bridge construction contractor against the city to recover the cost of constructing the concrete base of the approaches to the bridge, after rescission of the contract by the city and when the work done was in compliance with the contract, evidence to prove what the work done by the contractor in constructing the concrete base to the approaches was reasonably worth was admissible.
    7. Municipal cobpobations, § 393

      —when city cannot complain of failure to complete bridge contract. A city cannot complain of the failure of a bridge contractor to complete the work on the approaches to the bridge where the contractor was prevented from completing the work by the act of the city.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Walter T. G-unn, for appellant.
    Swallow & Bookwalter, 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 Graves

delivered the opinion of the court.

The parties to this suit entered into an agreement for the construction of a bridge and the approaches thereto within the limits of appellant city, for the total sum of $80,000. It was all completed, accepted and paid for except the paving of the approaches, and that work had progressed until the concrete base, curb and gutter on the approaches were completed. Almost immediately after the concrete work for this paving job had been completed, the City Council, by resolution, directed appellee to place no brick on the foundation until directed to do so by the City Council, and directed its superintendent of streets to cover the concrete base with gravel or cinders and open the bridge for travel, which order was in all respects complied with. The resolution referred to was adopted November 6, 1916. In January, 1917, this suit was commenced by appellee to recover for the part of the paving work on the approaches to the bridge that had been completed by him. He obtained a judgment for $2,007.10. The city brings the record of that case here by appeal.

Appellant’s defense in the Circuit Court was based primarily on the claim that the concrete pavement was not constructed according to contract. It makes the same contention here and urges as error all rulings of the court by which it was prevented from proving the claim to be true, by members of the City Council and others. The testimony of one witness for appellant on that question was taken out of the presence of the jury, and it offered to prove the same thing by several other witnesses, but the court held the testimony incompetent on the ground that whether or not the work, had been performed according to specification, had been, by the terms of the contract, left to the city engineer of appellant city to determine, and that the only question for the jury was how the engineer had determined it.

By the terms of the contract referred to it was provided that the decision of the city engineer of appellant city “upon all questions herein left to his discretion shall be final and conclusive,” and by clause 29 of the specifications, which were part of that contract, it is provided:

“Inspection. All material furnished by the contractor shall be subject to the inspection and approval of the engineer, and the engineer shall have power to condemn all work which in his opinion is not done in accordance with this contract and specifications, and the decision of the engineer shall control as to the interpretation of the plans and specifications during the execution of the work thereunder.”

Construing those two parts of the contract together, it seems beyond doubt that the parties understood and intended that all questions as to whether the materials furnished or the work done were according to contract were to be finally and conclusively determined by the city engineer. Such a contract is legitimate and binding. Weld v. First Nat. Bank of Englewood, 255 Ill. 43; Barbee v. Findlay, 221 Ill. 251. There is no error in excluding the testimony offered.

The city engineer was present when the concrete base for the pavement of the approaches was being constructed, and he inspected the work. It was bis duty to see that the work was performed properly and according to contract, and to condemn it if it was not so done. He not only did not condemn it, but he went on the witness stand and testified for appellee that the work was properly done. His determination of that question was final.

Appellee was allowed over objection to prove what the work done by him in constructing the concrete base to the approaches was reasonably worth. There was no error in that ruling. Where the performance of a contract by the contractor has been prevented by the other party, and the work done up to that time has been in compliance with the contract, and there is nothing in the contract by which the compensation for the part performed can be determined, the measure of damages is the reasonable value of the work done and the material furnished. Lincoln v. Schwartz, 70 Ill. 134.

The last ground urged for a reversal is that appellee should not have been allowed to recover anything until he had performed his contract by completing the paving of the approaches. He was prevented from completing this part of his contract by appellant, and appellant is in no position to complain that he did not do what it prevented him from doing.

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

Judgment affirmed.


text:
    L. M. Van Wegen, Appellee, v. The Grand Aerie of the Fraternal Order of Eagles, Appellant.
    1. Landlord and tenant, § 331

      —when lien acquired by landlord on tenant’s goods. The remedy of the landlord by distress for rent is regulated by statute, and the landlord has no lien by law on any of the property of the tenant, except growing crops, until the goods are distrained.
    2. Landlord and tenant, § 366

      —what property on premises may not be seized for rent due from tenant. Section 16, ch. 80, Hurd’s Rev. St. (J. & A. ¶ 7054), providing that the landlord may seize for rent the personal property of his tenant to be found in the county where the tenant resides, “and in no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant," must be construed to mean what its language implies.
    3. Landlord and tenant—what is right of third person to intervene in distress proceedings for rent against tenant. The right of a grand lodge as claimant of the property of the local lodge to intervene in distress proceedings for collection of rent against the local lodge is purely statutory and arises from the provisions of section 20, ch. 80, Hurd’s Rev. St. (J. & A. ¶ 7058), providing that a suit for distress for rent shall proceed in the same manner as an attachment, and section 29, ch. 11 (J. & A. ¶ 520), providing that in all cases of attachment any person, other than the defendant, claiming the property attached may interplead, and the court shall impanel a jury to inquire into the right of property.
    4. Landlord and tenant—when jurisdiction to try right to property between landlord and intervener in distress proceedings not lost. In an action by a landlord for distress for rent against a local lodge as tenant, in which the supreme lodge intervenes as claimant of the property, the contention that the court has no jurisdiction to determine the right of property between the landlord and the supreme lodge because the latter had been dismissed out of the case prior to intervening is without merit.
    5. Landlord and tenant—when ownership of property conclusively found to he in intervener in distress proceedings for rent. In an action by a landlord for distress for rent against a local lodge as tenant, in which the supreme lodge intervened as the claimant of the property, and in which the Circuit Court found that the supreme lodge was the owner of the property, and the finding was challenged only on the untenable ground that the court had no jurisdiction, the ownership of the property was conclusively settled in favor of the supreme lodge.
    6. Landlord and tenant—when presumption of fraud does not arise from failure of third person to take possession of its property on leased premises. Where, in a chancery suit between a supreme lodge and a local lodge to determine the right to the property of the local lodge, after revocation of the latter’s charter, it is decreed that the property belongs to the supreme lodge, it is a matter of public record, and no presumption of fraud arises from failure to take possession of the property before commencement of distraint proceedings for rent by the landlord against the local lodge.
    Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed October 22, 1918.
    Dobbins & Dobbins and B. L. Kirk, for appellant.
    O. D. Thomas and J. J. Rea, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

The Fraternal Order of Eagles had a local branch or lodge known as the Champaign Aerie No. 563. That Aerie rented rooms of appellee at the monthly rental of $50, from June 15,1915, to June 15,1918, and moved into them certain articles of personal property. The rent was paid regularly until October 15, 1916. On October 16, 1916, the Grand Lodge of that organization, for reasons of its own, revoked the charter of the Champaign Aerie and demanded of that lodge all of the property and paraphernalia that had been used by it to be turned over to the Grand Aerie or lodge to be used by another local Aerie, if one should be formed. The property was not turned over to the Grand Aerie as demanded, and later a suit in chancery was begun in which a decree was finally entered directing that the property in question be turned over by the Champaign Aerie to the Grand Aerie. Appellee was not a party to that proceeding. In the meantime, the property in question remained in the building of appellee, and no rent being paid appellee, the landlord began proceedings in distress for rent. The distress warrant directed the officer to distrain of the goods and chattels of Champaign Aerie No. 563, and the trustees thereof and the Grand Aerie of the order sufficient to make the sum of $515.50, the amount claimed to be due for rent in arrears for the premises in question. The sheriff levied the distress warrant by taking the property found in the premises rented from appellee by the Champaign Aerie. A summons was in due time issued out of the Circuit Court of Champaign county, in which all of the parties mentioned in the distress warrant were named as defendants. This summons was duly served on all of the defendants named therein. All of the defendants named defaulted except appellant, and it was voluntarily dismissed out of the case by appellee. "Whereupon, it was allowed by the court to interplead and it filed pleas claiming to own the property levied on. Appellee answered denying that appellant owned the property "or had any right to its possession and averring that it was subject to a lien of appellee for rent due from appellant.

While the court found that appellant was the owner of the property in question, it found the issues in the distress proceedings in favor of appellee and against appellant, and entered judgment in that proceeding in favor of appellee and against appellant for the property distrained, “subject to the distress warrant,” which we understand to mean that the property should be subjected to the rights of appellee to the extent of his lien on. the same by virtue of the levy of his distress warrant. The court then proceeded to assess appellee’s damages in the matter of the distress proceeding and did assess them at $515, and entered up a personal judgment against the Champaign Aerie Lodge No. 563 for that amount.

The remedy of the landlord by distress for rent is regulated in this State by statute. The landlord has no lien by law for rent on any of the property of the tenant, except on growing crops, until the goods are distrained. A. N. Kellogg Newspaper Co. v. Peterson, 162 Ill. 158; Powell v. Daily, 163 Ill. 646.

Section 16 of chapter 80, Rev. St. (J. & A. ¶ 7054), provides that the landlord may seize for rent the. personal property of his tenant to be found in the county where the tenant resides, “and in no case shall the property of any other person, although the same may be found on the premises, be hable to seizure for rent due from such tenant.” This section has been construed to mean just what its language implies. Howdyshell v. Gary, 21 Ill. App. 291; Powell v. Daily, 61 Ill. App. 559. Section 17 of the same chapter (J. & A. ¶ 7055) provides for the return of the distress warrant together with an inventory of the property levied upon. Section 18 (J. & A. ¶ 7056) provides for the issuance and return of a summons against the tenant. Section 19 (J. & A. ¶ 7057) provides for notice to nonresident defendants, and section 20 (J. & A. ¶ 7058) provides that the suit shall thereafter proceed in the same manner as in case of attachment. Turning to the Attachment Act to ascertain the manner of procedure when suit is begun by attachment, we find that section 29 of that Act (J. & A. ¶ 520) (chapter 11) provides that:

“In all cases of attachment, any person, other than the defendant, claiming the property attached, may interplead, * * * and the court shall immediately * * * direct a jury to be impaneled to inquire into the right of property.”

It is under this section that speedy relief is provided in cases where in violation of the express prohibition of section 16, chapter 80, Rev. St. (J. & A. ¶ 7054), the property of persons other than the tenant has been seized by virtue of a distress warrant.

The proceeding in the case at bar, so far as the interpleader was concerned, was conducted in exact conformity with the provisions of section 29 of the Attachment Act. The right of appellant to so intervene is purely a statutory and not a common-law right, and arises from the provisions of section 20 of chapter 80 and section 29 of chapter 11 construed together. The contention that the court had no jurisdiction to determine the right of property between appellant and appellee because appellant had been dismissed out of court is wholly without reason or force. It is only a person who is not a defendant who may interplead by virtue of the statute quoted.

What has already been said practically disposes of one branch, of the only remaining important question, in the case, namely, did the court commit error in ordering the property sold? The Circuit Court in this case found and decreed that appellant was the owner of the property in question, and as the court had jurisdiction of both the parties and the subject-matter involved in that question, and that finding is challenged only on the ground of want of jurisdiction, the ownership of the same is conclusively settled in favor of appellant. Appellee argues, however, that notwithstanding the fact that appellant is the owner of the property, it has lost its rights to it, by delay into taking-possession of the same before distraint, under the presumption of fraud that obtains where personal property is sold and the possession remains with the seller. That presumption prevails only where there is a sale of the property by the owner. Retaining possession of property by the former owner after a sale of it by ah officer under'due process of law raises no presumption of fraud because of the publicity of such sale. Lowe v. Matson, 140 Ill. 108; Hiser v. Walbaum, 129 Ill. App. 82. For a like reason, when the title of property is declared by the decree of court to be in one certain person, it is not only a matter of public notoriety, but is a matter of public record, and the presumption of fraud will not prevail. The property involved in this case was declared by the decree of the Circuit Court in the chancery case wherein appellant was complainant and the Champaign Aerie No. 563 was defendant, and appellee knew all about it, and his testimony shows that on the very next day after that decree was entered he demanded the key to the rooms and in reality took possession of the property, although the distress warrant was not levied or issued until á few days later. Appellant is therefore not chargeable with laches or subject to the consequence of any presumption of fraud.

There is no theory upon the facts shown in this record upon which appellee can rightfully hold the property in question for rent.

The judgment of the Circuit Court is therefore reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Waggoner

text:
    John Wenz, Sr., Appellee, v. Business Men’s Accident Association of America, Appellant.
    1. Insurance, § 113

      —what constitutes delivery of accident policy. The mailing of an accident policy, after acceptance by the insurer of the application of the insured and payment of the premium, to the agent of the insurer, with directions to deliver it to the insured, is a delivery to the insured from the time of the mailing of the policy, if no further action upon the part of the insurer is contemplated.
    2. Insurance—what constitutes acceptance of accident policy. There was an acceptance of an accident policy by the insured at the time of taking the application where at such time a sample copy of the policy was presented to the insured and he expressed his satisfaction with the policy and paid the premium, even though the application contained a statement that the policy issued on the application was to take effect when received and accepted by the insured, and a question in the application, as to whether the insured agreed upon receipt of the policy to examine it, and if it was not satisfactory to return it in three days in order that the amount paid might be refunded, was answered in the affirmative.
    Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1918.
    H. A. Neal and Gilmore & Brown, for appellant.
    C. A. Shuey and A. O. & Ben F. Anderson, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court. 1

John Wenz, Jr., kept a restaurant near the railroad station, about one-half a mile from the post office and public square, in Charleston, Illinois. Appellant is an insurance association with its principal office located at Kansas City, Missouri, and has an agent, Glenn Baird, at Charleston. The agent was furnished, by appellant, with a copy of the policy it issued to he used in soliciting insurance and for the inspection of prospective applicants. Wenz was solicited by Baird to take a policy of insurance. They had several talks about the matter and Baird showed Wenz a sample copy of the policy that would be issued to him upon an acceptance, by appellant, of his application. Wenz on May 11, 1917, signed an application for such a policy as he had seen, which was to be sent to him by mail, and immediately paid the premium thereon.

At the top of the application is a statement that: “The policy issued on this application is to take effect when received and accepted by me. ’ ’ In the body of the application the question is asked, “Do you agree that upon the receipt of the policy you will examine, and if satisfactory accept it, and if not satisfactory you will return it within three days, in order that the amount paid herewith may be returned to you?” The question is answered, “Yes.”

The application and money «-received from Wenz were, by Baird, immediately forwarded to appellant at Kansas City, Missouri. After receiving the application and money the secretary of appellant wrote Wenz a letter, dated May 23, 1917, saying: “Your application for membership in this association has been approved by the Membership Committee and policy is enclosed. We appreciate having received your application and in case you suffer- either accident or illness, are sure that you will be glad that you have protected yourself against entire loss of income during such a period. ’ ’ This letter was received by Wenz at the post office, in Charleston, about 11 o’clock in the morning of May 26, 1917, and was found by an undertaker in his pocket after his death the afternoon of the same day. The writer of the letter failed to inclose the policy therein but sent' it, together with other policies, in a letter of' the same date to Baird with instructions to deliver the policies. Baird got the letter addressed to him from the post office about 1 -.30 p. m. May 26, 1917, and about two hours later was on his way to deliver the Wenz policy when a cyclone swept over part of the City of Charleston, and Wenz was among those who lost their lives. It is conceded that the necessary proof of death was made.

Appellant has assigned several errors, but in argument correctly says: “The real question at issue in this case is whether the policy of insurance upon which suit was brought was in effect at the time of the death of John Wenz, Jr. The facts with reference to the transaction are not in dispute. ’ ’ The insurance policy was admitted in evidence without objection and the terms thereof were thereby established.

The policy was to have been sent to the assured by mail, and had it been inclosed in the letter dated May 23,1917, would have been delivered when the letter was deposited in the mail.

If at the time of mailing a policy properly addressed to the applicant it is the intention of the insurer that it is to be delivered to the applicant without further action on the part of the insurer, then the law regards the policy as issued and delivered, as soon as it is placed in the post office for that purpose. The mailing of the policy, under such circumstances, manifests an intention on the part of the insurer to complete the negotiation for insurance, and such will be the effect unless the applicant gives notice of some good reason for refusing to accept the policy. Williams v. Philadelphia Life Ins. Co., 105 S. C. 305, 89 S. E. 675 (676). The deposit of a life insurance policy in the mails, addressed to the insured, is a delivery to bim, although he dies after it is so deposited and before receiving it. Triple Link Mut. Indemnity Ass’n v. Williams, 121 Ala. 138, citing 1 May on Insurance, secs. 46-49; 1 Bacon on Benefit Societies, secs. 272, 273. Where nothing remains to be done but to issue a policy in accordance with the terms of the application, by way of acceptance of such application, the contract becomes complete when the policy is placed in the mail, postage prepaid, for delivery in due course to the insured. 25 Cyc. 718. Is there any difference in principle, when the insurer mails the policy to a third party, or even to an agent, with the sole object in using such a medium of communication, to effect the unconditional delivery of the policy to the applicant! If the insurer in such a case does not contemplate any further action than the delivery of the policy by the agent, then the delivery becomes effective as soon as the policy is mailed. Williams v. Philadelphia Life Ins. Co., 105 S. C. 305, 89 S. E. 675 (676); Rose v. Mutual Life Ins. Co. of New York, 240 Ill. 45; Unterharnscheidt v. Missouri State Life Ins. Co., 160 Iowa 223, 138 N. W. 459, and 45 L. R. A. (N. S.) 743.

The appellant had received the application and premium; had accepted the application; had issued and delivered the policy, and nothing remained to be done by appellant unless the insured (Wenz) refused to accept the policy and returned it within three days in order that the amount paid by him might be refunded. The policy did not require any statement of acceptance, but simply gave Wenz a right, if not satisfactory to Mm, to return it. This provision of the policy was for the benefit of Wenz, to exercise or not, and the appellant acquired nothing under it.

John Wenz, when talking with Gflenn Baird, said he (Wenz) had two or three policies, but intended dropping one or two of them and taking a policy like the one Baird showed Mm. Wenz examined the sample policy immediately prior to the execution of the application and thereby learned the terms of the policy that would be issued to him by appellant. Wenz, after signing the application, on two or three occasions asked Baird if he had received the policy, and was each time told the policy would be sent to Mm by mail. He did not have to wait until he saw the policy to determine whether it was satisfactory nor to decide whether he would accept it. Those questions had been determined on an inspection of the sample policy, before making the application and paying the premium. The sole object in making the application and paying the premium was to obtain the policy. It has been held that an assent to a deed before its execution is a sufficient acceptance. (Mitchell’s Lessee v. Ryan, 3 Ohio St. 377; Hoffman, Burneston & Co. v. Mackall, 5 Ohio St. 124), and we hold that, under the facts in this case, there was a sufficient acceptance of. the policy by Wenz at the time he made the application and paid the premium.

In this case the issuance of the policy is admitted, likewise the death of the insured and the making of the necessary proof to the association. The admission of the policy in evidence proves the terms thereof. The evidence establishes the payment of premium and the acceptance and delivery of the policy. The appellee was entitled to recover, and finding no reversible error in the record the judgment of the Circuit Court will be affirmed.

Judgment affirmed.


text:
    Lincoln Mining Company, Appellee, v. Board of Education of the State of Illinois, Appellant.
    1. Colleges and universities, § 3

      —what is nature of Board of Education of State of Illinois. The Board of Education of the State of Illinois is a private corporation created in the year 1856 by “An Act for the establishment and maintenance of a Normal University” (J. & A. ¶¶ 10419-10431).
    2. Sales, § 20a

      —when contract to furnish coal as required is binding% A contract to furnish as much coal as may be needed, required, or consumed by the acceptor during a limited time, is binding.
    3. Sales, § 15

      —when contract void for want of mutuality. A contract to furnish such coal as the acceptor might want or desire in his business is void for want of mutuality, since he is not bound to want or desire any coal.
    4. Sales, § 72

      —when parol evidence is admissible to ascertain subject-matter of contract and meaning of particular term. Where a contract for the sale of coal is not as plain and explicit as it might be, in order to determine whether it is a contract for the season’s supply or for “about 2,000 tons,” previous and contemporary transactions and facts may be taken into consideration to ascertain the subject-matter of the contract and the sense in which the parties used particular terms, but not to alter or modify the plain language thereof.
    5. Sales, § 65

      —when contract for coal construed as one for season’s supply at fixed price. A contract for the purchase of "about 2,000 tons” of coal for a year ending on a certain date must be construed as one for the season’s supply at the price fixed in the contract, where a similar contract was entered into the year before and sufficient coal to meet the season’s requirements at the price fixed in the contract was delivered, although the amount delivered exceeded the exact amount referred to in the contract.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed.
    Opinion filed October 22, 1918.
    Statement by the Court. This cause was submitted to the Circuit Court on an agreed statement of facts under the provisions of section 103, ch. 110, Hurd’s Rev. St. 1917 (J. & A. ¶ 8640). The Circuit Court gave the Lincoln Mining Company judgment for $993.86, and the defendant appealed to this court.
    The facts appearing from the stipulation are as follows : Pursuant to a call by the defendant for bids, the plaintiff, on the 15th day of August, 1916, submitted the following bid, viz.:
    “Lincoln, HI., Aug. 15th, 1916.
    “Mr. Chas. L. Capen,
    Pres. State Board of Education,
    Bloomington, HI.
    “Dear Sir:
    “We propose to furnish the Illinois State Normal ^University, at Normal, Hlinois, for the year ending August 31st, 1917, coal as follows:
    “About 2^000 tons screenings at $1.68 per ton,
    100 tons of Lump at $2,23 per ton, or
    100 tons Mine Bun (the kind of coal we have furnished you the past year) at $2.03 per ton, all above delivered to the boiler house of the above institution at Normal, 111., institution weights to govern settlements.
    Tours very truly,
    Lincoln Mining Company,
    B. H. Armstrong,
    Gen. Mgr.”
    The bid of the Lincoln Mining Company was accepted by defendant, the acceptance being in the form of a letter as follows, viz.:
    “Normal, HI., Aug. 15, 1916.
    “Lincoln Mining Co.,
    Lincoln, HI.
    “Gentlemen:
    “Ton are awarded the contract for furnishing coal for this institution for the year ending August 31,1917, at the following prices per your bid of August 15:
    “About 2,000 tons of screenings at $1.68 per ton.
    “About 100 tons lump coal at $2.23 per ton.
    “We would like to have a car of screenings shipped right away, as we are just about out of coal.
    Tours very truly,
    David Felmley.”

      The plaintiff furnished the defendant coal under said contract from the 17th day of August, 1916, to the 7th day of February, 1917, inclusive, the quantity of coal furnished during said period of time being 2,189 tons; that said quantity of coal was to be paid for at the price stipulated in said contract, viz.: $1.68 per ton.
    After the delivery of the above quantity of coal the plaintiff on the 3rd day of February, 1917, sent the defendant the following letter:
    “Lincoln, HI., Feb. 3rd, 1917.
    “David Felmley, Pres.
    Illinois State Normal Üniv.,
    Normal, 111.
    “Dear Sir:
    “We have delivered and now have in transit to you more than 2,000 tons as called for in the contract.
    “We are willing to follow the usual practice and allow 10% over after which it will be necessary to make other arrangements.
    “To make the 10% over it will be necessary that we ship you two more cars after today.
    Tours truly,
    Lincoln Mining Company,
    B. H. Armstrong,
    Gen. Mgr.”
    To which letter the defendant, by its president, David Felmley, replied as follows:
    “Normal, 111., Feb. 5,1917.
    “Lincoln Mining Co.,
    Lincoln, HI.
    “Gentlemen:
    “The proposition that you made to us on August 15 for furnishing coal for the Normal University reads as follows:
    “ ‘We propose to furnish the Hlinois State Normal University, at Normal, 111., for the year ending August 31st, 1917, coal as follows:
    “ ‘About 2,000 tons screenings at $1.68 per ton.
    100 tons lump at $2.23 per ton.
    100 tons mine run (the kind of coal we have furnished you the past year) at $2.03 per ton, all delivered to the boiler house of the above institution at Normal, 111., institution weights to govern settlements. ’
    “It was our intention to make, as we have done, a contract for the year. The estimate as to the amount of coal needed has been the same estimate that we have made for the last three years, that is, so long as we have had our present buildings. We expected that our water tube boilers would prove more efficient and consequently would need less coal. In this we were disappointed.
    “Now if this contract really means that you are to furnish the amount of coal named and not our coal supply for the year we, of course, shall abide by the contract, altho we supposed we were mailing the contract for the full year. At all events we want you to keep us supplied with coal until further notice and if our contract does not cover the additional shipments we shall pay the current market price from day to day until some other arrangement is made.
    Yours very truly,
    David Felmley.”
    February 3, 1917, the plaintiff delivered to the defendant certain quantities of coal, aggregating 993.86 tons, the date of the last delivery being one carload on June 1,1917, and it is contended by plaintiff that under the terms and provisions of the contract plaintiff was under no legal obligation to deliver any coal in addition to or excess of the amount delivered previous to February 3, 1917, and that under a legal construction of the contract the coal delivered after February 3, 1917, should be paid for by the defendant entirely independent of the provisions of the contract and at the prevailing market price of coal upon the respective dates of delivery after February 3, 1917, the prevailing market price of which is stipulated to be $2.68 per ton.
    The contention of the defendant is that under the terms and provisions of the contract the plaintiff was required to furnish to the defendant the entire quantity of coal which the defendant would require for the eh-tire contract period at the rates per ton mentioned in said contract.
    If, upon a construction of the contract, the court determines that the quantity of coal was limited to “about 2,000 tons” and that the coal delivered previous to February 3, 1917, fulfilled the contract, judgment is to be entered for plaintiff for $993.86; but if the court shall determine that the quantity of coal to be delivered was unlimited and the plaintiff was bound to deliver all the coal that the defendant might require during the period of time covered by the contract, then the judgment is to be for the defendant.
    Subject to objections for competency and relevancy and all objections that might be urged to its admissibility, it was stipulated that the following contract was entered into between the plaintiff and defendant for the year 1915-16, consisting of the following correspondence, viz.:
    “Lincoln, Illinois, August 11, 1915.
    “Charles L. Capen,
    President Board of Education,
    Bloomington, 111.
    “Dear Sir:
    “We are pleased to name you the following prices for coal for the use of the Illinois State Normal University at Normal, 111.:
    “Mine run coal delivered your boiler house at University, $1.95 per ton.
    “Screenings coal delivered your boiler house at the University, $1.53 per ton.
    “This proposal is based on your estimate of approximately 2,000 tons, the mine run to be delivered into the old plant or the one now in use and the screenings to the new plant on its completion, which we understand to be about the holiday period.
    Respectfully submitted,
    Lincoln Mining Company,
    B. H. Armstrong,
    Gren. Mgr.”

      “Normal, Illinois, August 20,1915.
    “Lincoln Mining Co.,
    Lincoln, 111.
    ‘ ‘ Gentlemen:
    “I write to state that you have been awarded the contract for furnishing the coal supply for the coming year to the Illinois State Normal University, mine run coal at $1.95 per ton, and screenings $1.53 per ton, to be delivered as needed, in the old and new boiler houses on the grounds of the Illinois State Normal University. A contract will be sent you later for your signature.
    Tours very truly,
    David Felmley.”
    And that under said contract plaintiff furnished defendant for the year 1915-16, 2,336 tons coal at the prices stipulated in the contract.
    Edward J. Brundage and Clarence N. Boord, for appellant; O’Connell & Dolan, of counsel.
    James E. Miller, for appellee; David H. Harts, Jr., of counsel.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The defendant is a private corporation created in the year 1856 by “An Act for the establishment and maintenance of a Normal University.” Jones & Addington’s Illinois Statutes Annotated, vol. 5, ch. 122, pars. 10419-10431; Board of Education of State of Illinois v. Bakewell, 122 Ill. 339; Board of Trustees of University of Illinois v. Bruner, 175 Ill. 307; Haines v. State Board of Agriculture, 184 Ill. App. 191; Minear v. State Board of Agriculture, 259 Ill. 549.

A contract to furnish such coal as may be needed, required or consumed by the acceptor during a limited time is binding. Such a contract is to he distinguished from one to furnish such coal as the acceptor might want or desire in his business, because he is not bound to want or desire any, and such contract is void for want of mutuality. Higbie v. Rust, 211 Ill. 333; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77. Contracts for the purchase of the season’s supply of coal are not unusual nor uncommon and are valid. Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85 (95); Consolidated Coal Co. of St. Louis v. Block & Hartman Smelting Co., 53 Ill. App. 565 (573); National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427 (433, 434); Sage v. W. H. Purcell Co., 90 Ill. App. 160.

Is this contract for the season’s supply of coal for the year ending August 31, 1917, or is it for “about 2,000 tons ’ ’ ? The contract is not as plain and explicit as could be asked. Under such circumstances previous and contemporary transactions and facts may be very properly taken into consideration to ascertain the subject-matter of a contract and the sense in which the parties may have used particular terms, but not to alter or modify the plain language used. Brawley v. United States, 96 U. S. 168 (173); Chicago Auditorium Ass’n v. Corporation of Fine Arts Bldg., 244 Ill. 532, and note in 18 Ann. Cas. 257; McLean County Coal Co. v. City of Bloomington, 234 Ill. 90 (96, 97); Chicago Title & Trust Co. v. Sagola Lumber Co., 242 Ill. 468 (475, 476).

The most reasonable explanation for the use of the words “about 2,000 tons” is that this is a contract for the season’s supply of coal, and the words quoted are the estimate of the season’s requirements. We believe that in view of all the surrounding circumstances and the previous transactions which this court considers, not for the purpose of altering or modifying the plain language of the contract, but of ascertaining the subject-matter of it, and in order that this court may put itself in the same position the parties occupied at the time they made the contract, the contract should be construed as being for the season’s supply of coal for the year ending August 31, 1917, and that the plaintiff was required to furnish and the defendant to take its season’s supply of coal at the price fixed in the contract. Brawley v. United States, 96 U. S. 169 (172); Benjamin on Sales (7th Ed.), secs. 691, 692; note 12 Ann. Cas. 294-296.

Under the stipulation of facts made in this case, the appellee is not entitled to recover. Judgment is reversed.

Reversed.


author: Per Curiam.

text:
    Lincoln Payne, Trustee, etc., Defendant in Error, v. Louis F. Stuebe et al. Louis F. Stuebe, Plaintiff in Error.
    1. Appeal and brbok, § 855

      —when certificate of evidence unnecessary. When a cause is heard on the pleadings with a report of evidence made by a master without any evidence being heard in court, a certificate of evidence is not required.
    2. Bankbiiptov, § 38

      —when trustee of insolvent corporation may maintain action against stockholders on unpaid stock subscriptions. The trustee in bankruptcy of an insolvent corporation represents the creditors to the extent that he may ^sue stockholders to make them respond on their liability, under section 8 of the Corporation Act of Illinois (J. & A. ¶ 2425), on the amount remaining due and unpaid on capital stock of which they were the owners.
    Error to the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. , Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Statement by the Court. Lincoln Payne, complainant, as trustee in bankruptcy of the News Printing Company, filed this bill in equity in the Circuit Court of Vermilion county to the October term, 1914, against .Louis F. Stuebe, Minna Stuebe and F. A. Baumgart. The bill alleges that in March, 1914, the News Printing Company was on its petition adjudged a bankrupt; that the News Printing Company is a corporation organized in January, 1907, under the laws of the State of Illinois, with a capital stock of 600 shares of the par value of $100 per share; that in January, 1908, and in March, 1909, Louis F. Stuebe became the owner and assignee of 598 shares of the stock of the corporation, and Minna B. Stuebe and F. A. Baumgart each became the nominal owner of one share, the equitable title of which was in Louis F. Stuebe; that in March, 1909, the number of shares of stock was increased to 1,200 and the par value reduced to $50 per share, and a new certificate for 1,196 shares was issued to Louis F. Stuebe, and Minna B. Stuebe and F. A. Baumgart each received 2 new shares; that neither the original subscribers nor any of the assignees nor assignors ever paid to exceed 50 per cent of the amount of the par value of the stock, and there has always remained unpaid to the corporation at least 50 per cent of the par value of the stock, and none of the assignments and transfers of stock were ever recorded in the office of the recorder of deeds in the county of Vermilion, where the principal office of the corporation was located; that at the time of the adjudication in bankruptcy the corporation had assets not to exceed $1,000, and debts to the amount $4,000 were proved against the corporation before the referee in bankruptcy. The bill also alleges the statute of Illinois in reference to the liability of stockholders and assignees of capital stock of corporations.
    The bill further alleges that in June, 1912, the News Printing Company executed to Louis F. Stuebe a chattel mortgage, which was duly recorded, to secure a promissory note of $5,000, dated September 18, 1909, due 3 years after date, signed by Amos W. Bishop, Fred Boyalty and Fred Phillips, payable to Louis F. Stuebe, on certain described property of the corporation; that there was no consideration to the News Printing Company for said transaction, and the indebtedness- secured was the indebtedness of Bishop, Royalty and Phillips for a balance due for capital stock in the corporation sold by Stuebe to them at the time the note was executed; that on September 5, 1912, Stuebe procured said News Printing Company to execute a new chattel mortgage securing a note of $5,881.30, which note was a renewal of the note and indebtedness of Bishop, Royalty and Phillips, all of which was known to Stuebe; that about March 1, 1914, a few days before the filing of the petition in voluntary bankruptcy by the News Printing Company, Stuebe foreclosed said mortgage and bought the property mortgaged, which was of the value of $10,000, and converted the same to his own use, when there were creditors of the corporation having claims amounting to $4,000 who have proved their claims before the referee. It also alleges that the said mortgages are voidable and without consideration, and that Stuebe holds said mortgaged property for the benefit of the creditors of the corporation. The prayer of the bill is that Stuebe be decreed to be liable to the complainant for the debts of the corporation to the extent of the amount unpaid on the stock of which he was the assignee, and also to the extent of the value of the property received and converted by him under the chattel mortgage.
    The defendants answered denying any liability and setting up a contract dated September 17, 1909, under which Stuebe and the printing company sold certain chattel property and 1,196 shares of the capital stock of the corporation to Bishop and his associates for which the purchasers’ notes were taken, secured by a chattel mortgage executed by the purchasers, and a bill of sale by Bishop and associates in September 18, 1909, to .the News Printing Company of the same chattel property, subject to the mortgage to Stuebe, and a chattel mortgage executed in June, 1912, by the News Printing Company to Stuebe in renewal of the notes of Bishop and others to Stuebe and certain renewals thereof. A special master in chancery made a report of the evidence taken by him, with his conclusions, but the record does not contain any order of reference.
    The findings of the master are that there had only been $30,500 paid by the stockholders on the $60,000 of capital stock, and that the creditors of the corporation had a right to resort to the amount remaining unpaid as a fund to satisfy their debts, and that the chattel mortgage given to Stuebe by the corporation was to secure a debt of Bishop, Royalty and Phillips and not an indebtedness of the corporation.
    The court found that there was a deficiency of $2,857 in the assets of the corporation to pay its debts proved before the referee; that Stuebe was the real owner of all the stock of the corporation; that there •remained unpaid to the corporation 50 per cent of the amount due on its capital stock; that none of the transfers were recorded, and that Stuebe was as assignee liable for the unpaid subscription to the capital stock, which is half of its par value. The court also found that the chattel mortgages executed by the corporation were without consideration, and were given to secure the indebtedness of Bishop and associates on their purchase of capital stock in the corporation,' and were voidable by the trustee in bankruptcy, and that Stuebe, by foreclosing the chattel mortgage, had appropriated wrongfully the property mortgaged, which was of the value of $10,000, and entered a decree that the trustee recover from Stuebe $2,857, the amount due to creditors and costs. The defendant Stuebe prosecutes this writ of error.
    Charles G-. Taylor, for plaintiff in error.
    Rearick & Meeks, for defendant in error; A. Q. Reynolds, of counsel.

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

   Per Curiam.

Plaintiff in error has assigned for error, (1) that “The court erred in sustaining the special master’s findings, and in holding that complainant was entitled to the relief prayed”; (2) that “The court erred in overruling the defendant’s objections, and in sustaining the special master’s findings in his conclusions of law”; and (3) that “The court erred in overruling the defendant’s objections to the spedal"master not finding that the bill of complaint herein should be dismissed for want of equity.”

Defendant in error contends that the errors assigned are not properly before this court for review because there is no certificate of evidence. When a cause is heard on the pleadings with a report of evidence made by a master without any evidence being heard in court, a certificate of evidence is not required. Ferris v. McClure, 40 Ill. 99; Barnes v. Earle, 275 Ill. 381.

The record does not contain any order of reference of the cause either to a special master or to the regular master, although it does contain a report to the court purporting to be made by A. E. Hall, special master in chancery, of the evidence with his conclusions. The report of the evidence recites that the defendant in error offered in evidence, as an exhibit, the charter of the News Printing Company issued by the Secretary of State, and the minutes of stockholders’ meetings held on December 10, 1906, and January 22, 1908; it also recites the offering in evidence of various leases, certificates of stock, bills of sale, chattel mortgages, notes and other documentary evidence, some of which were introduced by the defendant in error and others by plaintiff in error, none of which, however, are incorporated in the master’s report. The record does not contain any exceptions to the report of the master nor any order that the objections shall be permitted to stand as exceptions.

Counsel for plaintiff in error in Ms argument contends that a trustee in bankruptcy, the defendant in error, is the representative of the corporation and not of its creditors, and'hence insists that the trustee has no right to file this bill against the stockholders to make them respond on their liability under section 8 of the Corporation Act of Illinois (J. & A. ¶ 2425) on the amount remaining due and unpaid on capital stock of which they were the owners.

“Unpaid stock subscriptions in a bankruptcy corporation pass to the trustee. * * * And its trustee in bankruptcy may maintain suit for the same in the State court.” (Remington on Bankruptcy, sec. 976.) “A bankrupt’s liability for Ms unpaid stock subscription also is a provable debt. ’ ’ (Remington on Bankruptcy, sec. 709.) “But where the corporation •has no right to enforce the liability, its trustee in bankruptcy has none.” While some textbooks lay down the rule that the bankruptcy court has jurisdiction in the bankruptcy proceedings themselves to make the assessment which is stated to be a prerequisite to the institution of suits to collect the unpaid stock subscriptions, an examination of the authorities cited for such rule will disclose the fact that such an assessment has been held to be a prerequisite only to suits at law against the several stockholders, and the rule is laid down in Sawyer v. Hoag, 17 Wall. (U. S.) 610, and Burke v. Smith, 16 Wall. (U. S.) 390, that in a suit in chancery “the trustee, is the proper one to make the call.” In Re Remington Automobile & Motor Co., 153 Fed. 345, it was said: “Had the corporation not become bankrupt, it could have laid an assessment upon such of its stockholders as were liable for further calls to make up full payment, and the right to make an assessment and call passed by the bankruptcy to the trustee”; and in Allen v. Grant, 14 Am. Bankr. 349, it is said: “The trustee in bankruptcy of an insolvent corporation may sue for the recovery of unpaid subscriptions,” and “a transferee, who takes such shares with knowledge that they have been improperly issued as fully paid up becomes liable for the unpaid subscription. * * * This liability can be enforced by the trustee in bankruptcy. For while he represents the corporation in a sense, he also represents the creditors.” Trustees are appointed by the creditors under the Bankruptcy Act of 1898, and it is their duty to collect and reduce to money the property of the estate of which they are trustees, and it was said in Sanger v. Upton, 91 U. S. 56: “As regards creditors, there is no distinction between such a demand [the personal liability on unpaid stock] and any other assets which may form a part of the property and effects of the corporation.” Counsel for plaintiff in error has cited some Illinois authorities, the holding of which is that an assignee for the benefit of creditors represents the insolvent and not the creditors, and he cannot set aside fraudulent conveyances because the insolvent could not avoid his own fraudulent acts. These authorities are not in point and not controlling in bankruptcy proceedings for the reason that the amendments of 1903 and 1910 to section 70 E of the Bankruptcy Act conferred on a trustee in bankruptcy the right to recover property which had been transferred in fraud of creditors.

This suit is a suit in equity. The trial court found the amount of the deficiency of assets to pay claims allowed against the bankrupt to be $2,857. It also found that the stock of the corporation consisted of 600 shares, of which plaintiff in error was the owner of 598 shares of the par value of $100 each, and the equitable owner of the share of stock issued in the name of Minna Stuebe and the share in F. A. Baumgart, of which they were only the nominal owners, and that when the number of shares of stock were doubled and the value reduced to $50 per share, plaintiff in error had issued to himself 1,196 shares and 2 shares to each of the other holders, but of which he was the equitable owner, and that not to exceed 50 per cent of the par value of the stock had ever been paid thereon, and that none of the assignments and transfers of stock had been recorded in.Vermilion county, the location of the principal office of the corporation.

The plaintiff in error being the owner of all the capital stock and liable for one-half the face value thereof, the court did not err in rendering a decree against him for $2,857, the amount of the deficiency and costs.

The plaintiff in error being liable on his holding of stock, it is unnecessary to review the question of liability for the value of property taken on chattel mortgage which is alleged to have been void.

The decree is affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor

text:
    Ruth Soper Darnell, Appellant, v. James Morrison Darnell, Appellee.
    Gen. No. 23,987.
    Divorce, § 68

      —when foreign decree no bar to decree for separate maintenance and support of child. Where a divorce has been granted in another State to the wife on substituted service, the defendant not having personally appeared, and the decree did not consider the question of alimony, the defendant having no property in the State, hut expressly reserved the question for consideration by any court having jurisdiction, the complainant may afterwards sue in Illinois, where the defendant resides and has property, and obtain a decree for the support and maintenance of herself and infant child.
    Appeal from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed December 4, 1918.
    Rehearing denied December 17, 1918.
    Leach & Leach and Payne & Payne, for appellant.

      Richard J. Cooney and John A. Verhoeven, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court. '

Ruth Soper Darnell, on February 26, 1915, filed her bill of complaint against James Morrison Darnell, in the Circuit Court of Cook county, praying that a decree be entered requiring the defendant to make suitable provision for the support of the complainant and the minor child of the parties, and that she be awarded the care, custody and education of the child. The defendant was served with process, entered his appearance, and answered the bill. More than 2 years after-wards, July 5, 1917, upon notice given, leave was given the complainant to file an amended bill, and defendant ruled to answer. The amended bill was filed on that date. Afterwards, by leave of court, the amended bill was amended. To this the defendant interposed a demurrer, which was sustained and the bill dismissed for want of equity.

The bill as amended set up, in substance, the proceedings in the original bill for separate maintenance; that afterwards the complainant filed her bill in the District Court of Steele county, Minnesota, a court of general jurisdiction, against the defendant, praying for a decree of divorce, and for support and maintenance of herself and child, and for the care, custody and education of the child; that in that case the defendant was served with process while in the federal prison at Leavenworth, Kansas, he having been sentenced on May 20, 1915, by the United States District Court, sitting in Milwaukee, Wisconsin, for a term of 3 years; that a decree was entered by the Minnesota court awarding complainant a divorce from the defendant, and the care, custody and education of the child; that the child was born on July 19, 1914. It was further averred that no alimony, support or maintenance was decreed by the Minnesota court, but that the question of alimony, maintenance and support was specifically reserved for the Circuit Court of Cook county, Illinois, or such other court as should have jurisdiction; that this was done for the reason that the defendant had no property in the State of Minnesota out of which an allowance could be made, and that the service was substituted service, and defendant had not entered his appearance in that court, and therefore that court had no jurisdiction to award alimony. The bill further alleged that complainant had supported herself and child since the child’s birth, and that the defendant had contributed nothing to their support; that complainant was without property or means of sustenance except what she might earn by her own labor; that defendant was amply able to support complainant and the child; that he owned certain real estate in Illinois, valued at more than $10,000, and that defendant was a resident of Illinois. The prayer of the bill was that the defendant be enjoined from selling or incumbering the property, and that he be decreed to pay to the complainant an amount sufficient to support her and the child, and for suit money.

Neither party has complained of the decree of divorce, nor the custody of the child as awarded by the Minnesota court, but the sole question is: Where a divorce has been granted to the wife on substituted service, the defendant not having personally appeared, and the decree of that court not having considered the question of alimony, but expressly reserved the same for future consideration by any court having jurisdiction, can the complainant afterwards institute suit in Illinois, where the defendant resides and has property, and obtain a decree for the support and maintenance of herself and infant child? This question has never been squarely passed upon in this State.

Appellee contends that in this State the question of alimony is restricted to the divorce suit and cannot be granted in any other action; that, under the statute and decisions of the courts of this State, alimony is not allowable where the bill is filed for that purpose alone, and as complainant’s bill is filed for that purpose alone, it was properly dismissed for want of equity. In support of this he cites Karcher v. Karcher, 204 Ill. App. 210; Trotter v. Trotter, 77 Ill. 510; Ross v. Ross, 69 Ill. 569; Petrie v. People, 40 Ill. 334; Eldred v. Eldred, 62 Neb. 613.

In the Karcher case, supra, the wife, a resident of Illinois, obtained a divorce from her husband who had temporarily gone to Mexico. The service was by publication. The husband did not appear. The court in the decree reserved the question of alimony for future consideration. Afterwards the former husband returned to Illinois, and the former wife upon leave of court filed a petition in the same suit, asking that the former husband be required to pay her alimony. Summons was issued and served on the defendant. He answered the petition, and, after hearing, a decree awarding alimony was entered. There was no question in that case as to whether a proceeding, separate and distinct from the divorce suit, would lie, but the sole question was'whether the former wife was entitled to alimony at all. If, as was held in that case, the former wife was entitled to alimony, we think no different rule should be announced in the instant case, because the decree of divorce was entered in Minnesota and not in Illinois.

Trotter v. Trotter, supra, was a suit by the wife against her husband for separate maintenance, and it was held that since the statute of this State on separate maintenance had been repealed, the bill would not lie. In that case the parties were not divorced, and none was sought.

In the Ross case, supra, it was held that under the separate maintenance statute, the wife could maintain a bill against her husband for an allowance, if she was living separate and apart from him, without her fault. It is plain that the question before us was in no way involved.

In Petrie v. People, supra, the wife filed a bill for divorce against her husband, also a petition asking for alimony pendente lite, which was allowed. The alimony not having been paid, the defendant was attached for contempt of court. He moved to quash the attachment,. and for discharge, on the ground that the court erred in allowing temporary alimony. His motion was overruled, and this was affirmed by the Supreme Court.

In the Eldred case, supra, it was held by the Supreme Court of Nebraska that a decree of divorce obtained by the wife on service by publication without appearance of the defendant in a foreign court was a bar to an action for alimony in Nebraska, awarded out of the defendant’s property in that State. This case has been expressly overruled in the case of Bodie v. Bates, 95 Neb. 757.

Alimony, in a general sense, means the allowance required by law out of the husband’s estate for the support of his wife. It is an allowance based upon the common-law obligation of the husband to support his wife, which is not removed by a divorce obtained for his misconduct. 14 Cyc. 742, 743; Adams v. Storey, 135 Ill. 448; Stillman v. Stillman, 99 Ill. 196.

In 1 Encyc. Pl. & Pr. 415, it is said: “In general, it may be said that if the divorce is ex parte, a decree for alimony may be subsequently rendered on the wife’s application to the courts of her husband’s jurisdiction, or those of her own, if he can be found there and personally served.”

This same rule is also stated in 2 Bishop on Marriage, Divorce and Separation, sec. 844. The author there says: “We have seen that a nondomiciled husband against whom his wife has obtained an ex parte divorce, he not having received actual notice within the State, and not having appeared, cannot be subjected to a decree for alimony. But the ex parte divorce is always a dissolution, there being no practical occasion for an ex parte separation from bed and board, wherein the decree for alimony is impossible. Hereupon, should the statutes create in the divorced husband a general duty to support his late wife, doubtless she might apply with effect to the proper court for alimony from the man from whom she had obtained such dissolution, in the State of his jurisdiction, or on finding him within her own. On the other hand, the statute might be in terms to exclude this right.” There is nothing in the statutes of this State that would in any way relieve the late husband of his obligation to support his former wife, where a divorce is rendered against him. On the contrary, this obligation is expressly recognized as continuing after divorce. Section 18, ch. 40, Rev. St. (J. & A. ¶ 4233). And it is the universal practice under this statute to require the late husband to support his former wife.

Some authorities hold that after a decree of divorce is granted and no provision is made for alimony, no alimony will be afterwards allowed, on the theory that the matter is res judicata. In discussing this question, Nelson on Divorce and Separation, vol. 2, p. 895, says: “Under the principle of res judicata it would seem that if the wife had no opportunity to be heard, and could make no application for alimony, and the court did not pass upon the question, or had no jurisdiction to award alimony, the ex parte decree of divorce should not be a bar to her subsequent proceedings for alimony. It may be urged that the decree of divorce dissolved the marriage relation and there is no longer a husband and wife and no liability on the part of the man to support his former wife. But in answer to this it may be said that when a man obtains a divorce he thereupon becomes liable for permanent maintenance of his former wife as fixed by the court. If the court granting the divorce does not fix the amount of his liability, has he escaped all liability? Are the rights of the wife to be determined without her ‘day in court’? What remedy has she if an eco parte divorce is a bar to a subsequent application for alimony? The eoo parte decree of divorce is in no sense an adjudication of her right to alimony. * * * The jurisdiction of the court was limited to the res, the status of the husband, and so far is valid as a dissolution of the marriage. * * * * In conformity with the above doctrine it is held in Minnesota that ‘The question of alimony is not res adjudícala by reason of a judgment of divorce in the proceeding in rem. * * * That judgment establishes nothing except that the marriage relation has been condemned and destroyed by a judgment of divorce; all other questions are res nova.’” Citing Thurston v. Thurston, 58 Minn. 279. To the same effect is 1 R. C. L., par. 84, p. 937.

In Cowls v. Cowls, 8 Ill. 435, it was held that where a wife had been divorced from her husband, but no provision made in the decree in relation to the custody or maintenance of the children, who were with their father, the former wife could afterwards maintain an independent bill in chancery for the custody and support of the children.^/ The court, after quoting from Story’s Equity Jurisprudence, sec. 1341, said (438): “It becomes clear, then, that our legislature, by providing that ‘when a divorce shall be decreed, it shall and may be lawful for the court to make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just,’ has conferred no new authority or jurisdiction upon the court. It was by its original jurisdiction clothed with the same powers before. ’ ’ If, as held in that case under the statute and under the unwritten law, a divorced wife could maintain an independent proceeding against her former husband for the support and custody of their children, it would seem to necessarily follow that a divorced wife could also maintain an independent proceeding against her former husband for alimony for herself and child, where such question was incapable of being determined in the divorce suit, since the statute mentions the alimony for the support of the wife in the same sentence with the care, custody and support of the children.

"in the instant case, since the Minnesota court had no jurisdiction to award alimony, and since that question was expressly reserved for the courts of this State, or for any court obtaining jurisdiction, the question of alimony was in no way determinedy And if a decree had been entered under the same circumstances in this State, under the doctrine of the Karcher and Cowls cases, supra, alimony could subsequently be allowed. We think that the fact that the decree was entered in Minnesota should make no difference. It follows, therefore, that the demurrer was improperly sustained and the bill dismissed.

The decree of the Circuit Court of Cook county is therefore reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.