text:
    William O. Bailey, Appellee, v. Fraternal Reserve Life Association, Appellant.
    1. Insurance, § 744*—when certificate of membership makes application a part of contract of insurance. In an action on a policy of life insurance issued by a fraternal benefit association, held that the language used in the certificate of membership made the application a part of the contract of insurance.
    2. Insurance, § 120*—how contract is construed. An insurance contract has but one object, indemnity, and all conditions and provisions therein which have for ¿heir sole aim the purpose of defeating the object of the contract are strictly construed against the insurer.
    3. Insurance, § 231*—how answers in application are construed in regard to declaring forfeiture. The rule that forfeitures of insurance contracts are not favored in law and will never be declared if, by any reasonable construction, such result can be avoided, applies especially in determining whether answers to questions in applications for insurance are warranties, where such questions are of such character that it is beyond human probability that they can be answered with literal and absolute truth.
    4. Insurance, § 752*—when answers in application are construed as representations. In an action on a policy of insurance issued by a mutual benefit association, held that a reasonable construction of the contract showed that answers to questions in the application were representations and not warranties.
    5. Insurance, § 868

      —when pleas averring that answers in application were untrue are insufficient. In an action on a policy of life insurance, pleas averring that answers to questions made in the application were untrue, without averring that the applicant knew at the time they were untrue, held bad on demurrer as such answers were representations and not warranties.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Robert H. Lovett, for appellant.
    Watkins & Golden, for appellee.

      See Illinois Notes Digest, Volg, XI *9 XV, 9-nfl Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

On the 11th day of January, 1912, appellant issued to Thomas Jefferson Bailey a policy of life insurance, called a certificate of membership, for the sum of $2,000, payable to appellee, a brother of the insured. The certificate recites that the insured, a member of Tallula Lodge No; 37 of said association located at Tallula, Illinois, is, while in good standing, entitled to all the rights and privileges of membership in the association, and entitled to participate in the benefit fund of said association, in the manner and upon the conditions printed therein and on the back thereof, “subject to the Constitution, By-laws, Rules and Regulations of said Association and limited by the representations and warranties in the application for membership.” The certificate further provides that it is issued and accepted subject to certain limitations and conditions, among which is the following: “(E) This Certificate and said member’s written acceptance thereof, the application for membership, the Medical Examiner’s report thereon (which said application and report are warranted by said member to be literally true in each and every part) and the Laws of the Fraternal Reserve Life Association shall, taken together, constitute the Contract between said member and the association.” In the fore part of the application signed by insured is the following declaration: “I hereby declare, warrant, and agree, that the statements hereinafter recorded and each and every one of them are true; that no facts known to me affecting my life or disability risk are withheld, distorted, or misstated; * * * I hereby consent and agree that any false statement, misstatement or suppression of facts herein shall deprive myself and my beneficiaries of all rights and benefits in said association; anything to the contrary in the Benefit Certificate hereafter to be issued to me notwithstanding.”

In the body of the application appeared twenty-five questions with answers thereto: At the end of the application is the following statement:

“I hereby certify that the above answers and statements are true, and I adopt and accept as my own the statements of the medical examiner on the reverse side of this sheet,, and I consent that he acts therein as my agent and not as the agent of the Fraternal Reserve Life Association.
******
“I have verified each of the foregoing answers and statements from 1 to 25 both inclusive, adopt them as my own, whether written by me or not, and declare, and warrant that they are full, complete and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between me and the Fraternal Reserve Life Association, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any Benefit Certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together; and I further agree that if any answer or statement in this application is not literally true, or if I shall fail to comply with and conform to any and all of the laws of the said Fraternal Reserve Life Association, whether now in force or hereafter enacted, amended or adopted, that my benefit certificate shall be void.” The insured died October 31, 1914, and appellee sued appellant in assumpsit to recover the amount named in the policy. Appellant in the court below filed seventeen amended and additional pleas to which a demurrer was sustained, and elected to abide by its pleas, whereupon judgment was rendered in favor of the plaintiff, from which judgment this appeal is prosecuted. The only error assigned and before us for consideration is whether the court erred in sustaining the demurrer to pleas numbered 9 to 17 inclusive. Pleas number 9 to 14 inclusive are based upon the alleged false answer “No” to the following question: “Have any of your grandparents, uncles, aunts, brothers or sisters had rheumatism, insanity, consumption or cancer? ”

Plea 15 avers that in said application the insured stated that his mother was dead and is based upon the alleged false answer “No” to the question, “Was tuberculosis or cancer a factor in her death? ”

Plea 16 is based upon the alleged false answer “No” to the question, “Have any of your grandparents, uncles, aunts, brothers or sisters had any hereditary disease? ”

Plea 17 is based also on the alleged false answer “No” to the question, “Have you ever lived in the family with or nursed any person afflicted with consumption? ”

Pleas 9 to 14 aver, respectively, that the insured’s sister, aunt, aunt, grandmother, uncle and aunt had been afflicted with consumption. Plea 15 avers that insured’s mother died with tuberculosis. Plea 16 avers that insured’s grandmother, uncle, three aunts and sister had each had an hereditary disease, to wit, consumption. Plea 17 avers that the insured’s mother was afflicted with consumption and that the insured had lived with her and her family while she was so afflicted.

The special causes of demurrer are (1) that the pleas do not aver that the insured knew that his answers were untrue; (2) or that he made them so recklessly that wilful falsehood should he imputed to.him; (3) or that the falsehood was material to the risk; (4) or that appellant relied upon the false statements.

It is contended by appellant that none of the objections mentioned in the special demurrer can be sustained to the pleas, for the reason that the application and the certificate together with the by-laws, rules and regulations constitute the contract; that under the terms of the application and the certificate the insured warranted all his answers to be the exact literal truth, and as that made the answers warranties and • not representations, it was not necessary that they should contain the averments mentioned in the special demurrer.

It is contended on behalf of appellee, (1) that the certificate does not make the application a part of the contract and therefore the answers to the questions therein are but representations and not warranties; and (2) that even if the application be construed to be a part of the contract, yet a construction of the whole contract shows that the answers to the questions mentioned are but representations and not warranties.

We have no doubt but that from a reasonable construction of the language in the certificate the application is made a part thereof, and it remains to be determined whether the answers are warranties or representations. Conditions in a policy of insurance are made by the insurer and the insured has no voice as to what they should be. They are invariably very numerous and often deal in terms not commonly known or appreciated by laymen. An insurance contract has but one object, indemnity, and all conditions and provisions therein which have for their sole aim the purpose of defeating the object of the contract are strictly construed against the insurer. Forfeitures of such contracts are not favored in law, and will never be declared if by any reasonable construction such result can be avoided. Especially is this true in determining whether answers to questions are warranties, where such questions are of such character that it is beyond human probability that they can be answered with literal and absolute truth. Section 174, May on Insurance, vol. 1. In such a classification must come the questions involved in this suit. For instance, could any .layman with literal truth answer “Yes” or “No” to the following question: “Have any your grandparents, uncles, aunts, brothers or sisters had rheumatism, insanity, consumption or cancer? ” It is a matter of common knowledge that rheumatism is a generic term that is applied to almost every ache or pain not otherwise accounted for. The dividing line between sanity and insanity has never yet been defined except in a most general way, and in nearly every case where that question is an issue, alienists, experts and laymen have contrary opinions. Consumption is not confined to tuberculosis of the lungs and, together with cancer, may attack almost any part of the body, internal or external. It is also a matter of common knowledge that a person may be afflicted with one or more of these diseases and not know it himself, and in many cases they cannot be revealed without a post-mortem examination. These same remarks have a general application also to the question, “Have any of your grandparents, uncles, aunts, brothers or sisters had any hereditary disease? ” What diseases are hereditary in their character is not within the common knowledge of laymen. In fact, professional opinion differs widely as to whether or not certain diseases popularly supposed to be hereditary are in fact so. The plea alleges that the answer to this question was false because certain relatives of the insured had had consumption. The weight of modern authority is that consumption as a disease is not hereditary. What has been said applies with equal force to the other questions mentioned. Which is the more reasonable construction to be placed upon answers to such questions, that applicant answered the same to the best of his knowledge and belief or that he warranted the literal truth thereof? In an analogous case, Atkinson v. National Council of K. & L. of S., 193 Ill. App. 215, the court said: “To assume that insurance companies soliciting insurance expect answers to such questions to .be accurate, and that any mistake or misstatement, whether knowingly made or not, material to the risk or not, should furnish an absolute defense to a suit on the contract, leads to manifest absurdities and a violation of the rules of common sense and common honesty that are presumed to govern mankind in their dealings with each other. Courts have seldom permitted an extreme application of that doctrine.”

In the case of Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133, it was held: “In the absence of explicit, unequivocal stipulations requiring such an interpretation, it should not be inferred that the insured or the appellee took a life policy with the distinct understanding that it should be void if any statements made in the medical examination should be false, whether the insured was conscious of the falsity thereof or not. (Moulor v. American Life Ins. Co., 111 U. S. 335.) Whether or not the -deceased knew of the death of his brother at the time of the application for insurance was • a question for the jury, and no evidence of such knowledge appears in the record. To hold that, as a precedent to any binding contract, he should guarantee absolutely that none of his brothers were dead would be unreasonable, in the absence of a -more explicit stipulation than here appears. It not infrequently happens that a man loses trace of all or a part of his relations, and to hold him to absolutely guarantee that they were living, in order that he might obtain insurance, would sometimes be to require an impossibility, and would be almost absurd. * * * What was meant by ‘true’ and ‘untrue’ answers? In one sense, that only is true which is conformable -to the actual state of things. In that sense a statement is untrue which does not express things exactly as they are, but in another and broader sense, the word ‘true’ is often used as a synonym of honest, sincere; not fraudulent.” In the case of Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273, it was said: “It is therefore unreasonable that persons who organize corporations for the purpose of selling life insurance would exact a warranty of an applicant for insurance of the truth of a matter which, from the very nature of the inquiry, might be wholly unknown to the applicant, and still more unreasonable that any sane person would knowingly warrant that he had never had, in any form or any degree, any disease embraced within the long «catalogue embodied in this application.”

If it be held unreasonable to construe as warranties answers to such questions in regard to what diseases the insured himself might have had, it would be much more unreasonable to construe as warranties such answers when given to questions in regard to what diseases the applicant’s grandparents, uncles, aunts, etc., might have had. In the Link case, supra, it was also held that when it is contended that warranties have been inserted in an insurance contract, the effect of which will inevitably be to defeat it in the end, such intention must be so clearly and irrevocably expressed as to leave the court with no other alternative but to so construe the contract. If there is another reasonable construction that may be placed upon it and thus avoid the consequences of a warranty, courts are inclined to adopt the latter construction.

The certificate states that the rights of the insured shall be limited by the representations and warranties in the application for membership heretofore made by said member.” The application states: “I hereby declare, warrant, and agree * * * that no facts known to me affecting my life or disability risk are withheld, distorted, or misstated.” The certificate admits there may be representations in the application. Such representations could only apply to the answers to the questions. The statement in the application infers that the answers therein were given only in so far as the facts were known by the applicant. The trial court was right in holding that, under a reasonable construction of this contract, the answers complained of were, representations and not warranties, and as the pleas did not aver that the applicant knew the answers to be untrue at the time they were made, they were bad. The court did not err in sustaining the demurrer, • therefore the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Frank T. O’Hair and Fred Rhoads, partners, trading as O’Hair & Rhoads, Appellees, v. Oliver L. Watson, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Edgar county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by Frank T. O’Hair and Fred Rhoads, partners, trading as O’Hair & Rhoads, plaintiffs, against Oliver L. Watson, defendant, for an attorney’s retaining fee. From a judgment for plaintiffs for two hundred dollars, defendant appeals.
    The defendant contended that no agreement for the payment of a fee was ever made and that, in any event, the plaintiffs should be denied a recovery because of their having represented other parties in the litigation, in which the fee was claimed to have been earned. The plaintiffs, while admitting that they had represented other parties, claimed that they did so only after their employment by the defendant had been terminated. The following instruction, given on behalf of the plaintiffs, was claimed to be erroneous:
    “The court instructs the jury, that the plaintiffs claim in this case that they were employed by the defendant, in certain litigation which the defendant heretofore had, as his attorneys to represent him in such litigation, and that after such employment, the defendant, on his own account, settled and adjusted his" litigation, and discharged the plaintiffs from further employment as his attorneys in such legal matters, and refused to pay the plaintiffs anything for retaining their services as attorneys in such legal matters. You are further instructed, that if you find from a preponderance of the evidence, that the plaintiffs were practicing attorneys, and were employed by the defendant to perform legal services for him, and that the plaintiffs stood ready, willing and able to perform such services at all proper times when the same should have been performed, then the defendant would be liable to the plaintiffs for retaining their services in whatever amount you find from a preponderance of the evidence the retaining of the plaintiffs’ services was worth.”
    Charles S. McNett, for appellant.
    Dyas & Dyas and Walter S. Lamon, for appellees.
    Abstract of the Decision.
    1. Attorney and client, § 45

      —when stipulation for attorney’s fee is not necessary. A client who employs an attorney to conduct a litigation and later settles the litigation himself is liable to the attorney for a reasonable attorney’s fee though there is no express stipulation that the fee is to be paid.
    2. Appeal and error, § 1629*—when restriction of cross-examination is harmless error. Restriction of cross-examination of witnesses who testified what would be a reasonable, ordinary and usual retainer for an attorney in a certain case, held harmless error, if error at all, where the verdict returned was for an amount less than half that testified to by such witnesses as being reasonable.
    3. Attorney and client, § 137*—when instruction as to client’s liability for attorney’s fee is correct. An instruction as to a client’s liability for an attorney’s retaining fee approved.

      See IllinoiH Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldredge

delivered-the opinion of the court.


author: Mr. Justice Eldredgb

text:
    Blackmer & Post Pipe Company, Appellant, v. R. E. Goodwin and J. W. Ryan, partners, trading as Goodwin & Ryan, Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by Blackmer & Post Pipe Company, plaintiff, against B. E. Goodwin and J. W. Byan, partners, trading as Goodwin & Byan, defendants, for a balance due for goods sold and delivered by the plaintiff to the defendants. Prom a judgment for defendants, plaintiff appeals.
    The defendants, after making a part payment for the goods by sending the plaintiff an order for payment of money on a city for which they had done work, wrote a letter to plaintiff asking it to .send to them a bill for the balance which they owed it and stating that they would pay the same as soon as they could; that they expected a settlement of their work any day and could then send the balance of their bill. Later they signed a written statement of their account with the plaintiff, wherein they acknowledged that the sum of $559.53, the sum sued for, was due.
    Walter T. Guru and Jay Briggs, for appellant.
    No appearance for appellees.

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

   Mr. Justice Eldredgb

delivered the opinion of the court.

Abstract of the Decision.

Accord and satisfaction, § 8 —when evidence shows part payment was not an accord and satisfaction. In an action for goods sold and delivered by the plaintiff'to the defendant, the clear and manifest weight of the evidence held to show that the giving of an order by the defendants to the plaintiff for the payment of money was not intended to be an accord and satisfaction of the debt.


text:
    George Harding and Dora Harding, Appellants, v. Edward Mitchell, Appellee.
    1. Assumpsit, action of, § 90*—when question as to whom promise was made is for fury. In an action by a husband and wife to recover for the support of the defendant’s nieces, evidence held sufficient to justify the submission to the jury of the question whether the defendant’s promise to pay for such support was made to the husband and wife jointly so as to make her a proper party plaintiff.
    2. Witnesses, § 34*—when wife is a_competent witness in action on contract. Where the evidence in- an action brought by a husband and wife on a contract tends to show that the wife has a joint interest in the contract, it is erroneous to refuse to allow her to testify.
    3. Limitation of actions, § 12*—when action on contract to pay for support is not harred. The statute of limitations held not a bar to an action for the expense of the support of the defendant’s nieces, on his promise to pay therefor monthly, as the contract was a continuing one.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Wolfe & Wagner, for appellants.
    John E. Wall and L. H. Berger, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellants, George Harding and Dora Harding, are husband and wife, and sued Edward Mitchell, appellee, in an action of assumpsit to recover for the support of Vera, Lenora and Geraldine Stevens, minor children of Mr. and Mrs. William Stevens. The mother of these children died in June or July, 1907, and their father shortly thereafter deserted and abandoned them. Mrs. Stevens, the mother of the children, was a sister of the appellant, Dora Harding, and also of the appellee, Edward Mitchell. Át the trial in the court below, the court directed the jury to find its verdict in favor of appellee on the grounds (1) that there was no evidence tending to show that Dora Harding had a joint interest with her husband in the contract sued upon, and (2) that the claim was barred by the statute of limitations. The court also on the trial refused to allow Dora Harding to testify for the reason that she was the wife of her coplaintiff, George Harding, and had no joint interest in the contract.

The evidence tended to show that after the death of their mother, the Stevens children were placed in a convent' known as St. Mary’s Academy, where they remained until about the middle of June, 1908, George Harding testified that about the middle of May, appellee came to the home of appellants and told them that his nieces, the Stevens children, would have to leave the convent in June, and that if appellants would permit them to live at their home that he, appellee, would pay appellants the sum of five dollars per month for their support, maintenance and education; that appellee did not want to take them to live with him because he had no home, as he and his wife were hoarding with their father-in-law and mother-in-law, and if appellants would take them he would pay them five dollars per month as long as one or more remained at their home. Appellants received the children about the middle of June, 1908, and one or more of them remained with appellants until October, 1915. On June 21, 1908, Dora E. Harding wrote to appellee the following letter:

“Quincy, Illinois, June 21, 1908.
“Dear Brother:
“You promised Mr. Harding and I that you would pay five dollars each month for the care of Yera, Lenora and G-eraldine, for their support, and that you would pay your part on Saturday evening. You did not call and pay as you promised. We would like very much for you to pay your part along with the rest, I am,
“Your loving sister,
“Dora E. Harding.”

Appellee replied to this letter as follows:

“Hotel Turner,
“Queen City, Mo.
“Queen City, Mo., June 24th, 1908.
“Dear Sister:
“I Becd your Letter at Laplato today saying that I diden keep my promist well you just ask your Landlord if I diden call at your home Saturday evening at 7:30, and ask him if you wasent at home and he told me that you was gon. I saw a light in one of the rooms but I coulden rise non one so I left this is your fault not mine and I will come to see you as soon as I get home. I havent got nuthing but expense mone with me and I can’t spare that and just as soon as I get home-1 will give you my part of the board.
“Your Brother
“Ehm.
“Excuse haste
“I will be at home on fore of July.”

Subsequently appellee paid Dora E. Harding three dollars which was the only payment that he ever made on this contract, although the trial court refused to permit appellants to show when this payment was made. Yera Stevens testified that while she and her sisters were in the convent, appellee came to them and told them that he had made arrangements for them to live at the home of appellants, and that they should go there and live, which they did on the 18th of June.

It is conceded by counsel for appellee that where a husband and wife have a joint interest they may sue as joint plaintiffs or be sued as joint defendants, but it is insisted that the evidence does not show that Mrs. Harding-had a joint interest in the contract with her husband and that he being in law the head of the family, could therefore alone bring the suit. We think the evidence tends to show that the obligation to the appellants was a joint one. The children are the nieces of Mrs. Harding and of appellee, thus making equal moral obligation on each of the latter to support them. A reasonable construction of the testimony and letters in evidence is that appellee promised that if appellants would take the children into their home, appellee would pay his share of the expense of their support to the latter, at the rate of five dollars per month. There was at least sufficient evidence to warrant the jury in passing upon this question.

We are also of the opinion that the court erred in not allowing Mrs. Harding to testify. In the case of Kelly v. Hale, 59 Ill. App. 568, the court said: “The only question of law, material to notice, is that of the competency of Mary Hale, wife of Thomas Hale, as a witness. She was joint maker of the note, and party defendant, hence she was a competent witness in her own behalf.” This rule was followed and approved in the case of Vercler v. Jansen, 96 Ill. App. 328, in the opinion of which it was said: “By this ruling of the court the two defendants in the case are absolutely precluded from testifying in their own behalf, upon the theory that the testimony of each might inure to the benefit of the other. If the rule laid down by the court below in this case were to be followed, all that would be necessary to prevent a married man from testifying in a civil case in his own behalf, would be to join his wife with him as a codefendant. It is evident that such a rule would be very unjust and would open a wide door to fraud.” The rule as stated in 40 Cyc. 2228, is as follows: “Where a husband and wife are coparties, each may testify in his or her own behalf, although the testimony may inure to the benefit of the other spouse; or against his or her own interest, although the testimony may militate against the other spouse.” Holding as we do that the evidence tended to show that the wife had a joint interest in the contract, it was error for the court to refuse to permit her to testify.

The defense of the statute of limitations cannot be interposed under the facts of this case, because the contract was a continuing one, and appellants, if successful in maintaining their cause of action, will be entitled to recover all monthly payments which shall have accrued five years prior to the bringing of the suit. Miller v. Cinnamon, 168 Ill. 447.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William Howell, Appellee, v. City of Gillespie, Appellant.
    (Not to be reported in full.)
    Appeal from the County Court of Macoupin county; the Hon. Dan Maddox, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    .Statement of the Case.
    Action by William Howell, plaintiff, against the City of Gillespie, defendant, to recover salary alleged to be due the plaintiff as city marshal of the defendant. From a judgment in favor of plaintiff for eighty dollars, defendant appeals.
    The plaintiff having, without notice to the mayor left the city and put another man in his place as city marshal, the mayor notified the plaintiff that his services were no longer desired, requesting his immediate resignation and surrender of city property. Thereafter the plaintiff went to the office of the city clerk and delivered to him his star, keys, revolver, pair of handcuffs and other property belonging to the city, which he had possession of by virtue of his office, and did not again attempt to act as city marshal. The plaintiff claimed that such acts did not constitute a resignation of his office.
    Thomas Rinaker and Alfred A. Isaacs, for appellant.
    Peebles & Pebbles, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. OnrcBBS, § 24 —how resignation of office may he made. A resignation of a public office may be either express or by implication.

2. Qeticebs, § 24*—what constitutes resignation of police officer. The action of a city marshal in surrendering the insignia of his office and the property of the city in his possession, after receiving a letter from the mayor requesting such resignation and making no attempt thereafter to perform the duties of the office, held a resignation of the office.

3. Municipal cobpobattons, § 1237*—what is effect of award of execution against. It is reversible error, in rendering judgment against a municipal corporation, to award an execution therefor against it.


text:
    I. J. Brooks, Appellee, v. Charles L. Laws, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by I. J. Brooks, plaintiff, against Charles L. Laws, defendant, as surety on a promissory note for $1,000 payable to the plaintiff and his wife. From a judgment for plaintiff for the principal sum and interest, defendant appeals.
    The defenses relied upon at trial were that, the note had been materially altered with the consent of the plaintiff and without the knowledge or consent of the defendant, and that the note had been extended for a definite period of time and for a valuable consideration without the knowledge or consent of the defendant.
    Miller & McDavid and Hill & Bullihgtoh, for~appellant.
    Lake, Dryer & Browh, for appellee.
    Abstract of the Decision.
    1. Principal and surety, § 54

      —when evidence shows alteration in interest rate of note. In an action against a surety on a promissory note, evidence held to show that the note had been materially altered by raising the interest rate with the knowledge and consent of the plaintiff, payee, and without the knowledge of the defendant.
    2. Principal and surety, § 54*—when evidence shows extension of time by holder of note. In an action against a surety on a promissory note, evidence among other things, that at the maturity of the note the plaintiff, the payee, received from the maker $10 more than the accrued interest charge according to the tenor of the note, held tended to show that the time of payment had been extended by the plaintiff without the consent of the defendant.
    3. Principal and surety, § 39*—what essential to enforceable promise to pay discharged debt. The promise by which a discharged debt is revived must be clear, distinct and unequivocal. The mere recognition or acknowledgment of such a debt does not create a legal obligation to pay it. There must be an express promise to pay the debt, and even the payment of part of the principal or the interest without any express promise will not revive the obligation.
    4. Principal and surety, § 39*—when new promise by surety on note will not support action. In an action against one of five sureties on a promissory note, the payment of which had been extended by the payee, the plaintiff, without the consent of the defendant, a statement by the defendant that he was willing to do what was right and to pay one-fifth of the note, held not a new promise to pay the note on which an action for the full amount could be maintained.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    M. E. Scarlett and George Thomas, Appellees, v. National Live Stock Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A- Partlow, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action of assumpsit by M. E. Scarlett and George Thomas, -plaintiffs, against the National Live Stock Insurance Company, defendant, on a policy of insurance on a stallion belonging to the plaintiffs. From a judgment for plaintiffs for $1,100, defendant appeals.
    On a former appeal a judgment in favor of plaintiffs was reversed for error in giving an instruction. Scarlett v. National Live Stock Ins. Co., 193 Ill. App. 488.
    Lindley, Penwell & Lindley, for appellant; Walter C. Lindley, of counsel.
    J. H. Dyer and C. F. Dyer, for appellees.
    Abstract of the Decision.
    1. Appeal and error, § 1725

      —what is res adjudicata on second appeal. Alleged errors passed on appeal of a case are res adjudicata on a subsequent appeal.
    2. Witnesses, § 144*—when insured is competent to testify as to transactions with the deceased agent of insurer. In an action on a policy of insurance on a stallion where his owners claimed that they answered all the questions in the application truthfully but that the defendant’s agent inserted false answers, admission of the testimony of the owners that they did not know what answers were inserted in the application by the defendant’s agent, deceased at the time of the trial, that they did not read the answers and that they first learned what answers were in the application at the time of a former trial of the case, held admissible and not excluded by Hurd’s Rev. St. 1911, ch. 51, sec. 4 (J. & A. If 5521), making incompetent the testimony of a party to an action as to admissions or conversations with the other party’s agent, deceased at the time of the trial.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Town of Polk, Appellee, v. Albert E. Ghent, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Macoupin county; the Hon. James A. Ckeigiitost, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the Case.
    Action by the Town of Polk, plaintiff, against Albert E. Ghent, defendant, to recover a penalty for the obstruction of a highway by the defendant. From a judgment against him for three dollars' and costs, defendant appeals.
    Defendant owned a forty acre tract of land in Polk township, Macoupin county, and for many years a public highway, created by prescription, angled across the north portion thereof. He and eleven others petitioned the highway commissioners to change the location of the road so that it would run directly across the north portion of the tract along the section line. The commissioners granted the petition and defendant deeded to them the north twenty feet of his ground and purchased for them the south twenty feet of the tract of land immediately north of his land, the purpose being to make the road forty feet wide. After the new highway was laid out, defendant fenced up the portion of the old highway which had run diagonally across his land. It appeared that the new highway was impassable because nothing was done towards making it fit for use for public travel. It ran over a steep hill and the stumps and other obstructions had not been removed therefrom. The commissioners claimed that it was a part of the agreement between them and defendant that he would put the new road in a passable condition, while he denied that he ever made such an agreement. No steps were ever taken to vacate the old highway.
    Peebles & Peebles, for appellant.
    Thomas Rinaker, for appellee.
    Abstract of the Decision.
    1. Roads and beidges, § 125

      —how highways may not be relocated. A public highway can only be vacated in the manner provided by statute, and commissioners of highways have no power to bargain with a landowner to close up an old highway and open a new one in exchange therefor.
    2. ' Roads and beidges, § 206*—what not a defense in action for penalty for obstructing a highway. No agreement or contract made by a landowner with highway commissioners to close up an existing highway running through his land and to open up a new one, even though the landowner purchases and dedicates to the public land for the new highway, can be a defense to a suit against such landowner to recover a penalty for obstruction by him of the old highway by closing it up.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Shields A. Blaine, Executor, Appellee, v. Walter C. Blaine, Appellant.
    1. Life estates, § 12

      —who entitled to rent payable in crops under lease of life estate. Hurd’s Rev. St. 1913, eh. 80, sec. 35 (J. & A. T[ 7075), providing that “When a tenant for life shall demise any lands and shall die on or after the day when any rent becomes due and payable, his executors or administrators may recover from the undertenant the whole rent due, but if any such tenant for life shall die before the day when any rent is to become due, his executors or administrators may recover the proportion of rent which accrued before his death, and the remainder man shall recover for the residue,” applies where a life tenant demises premises for rental payable in grain.
    2. Deeds, § 128*—what estates created by deed to take effect at grantor’s death. Deeds of the land to the grantor’s children delivered in escrow to a third party in trust to hold and deliver them to the grantees on the testator’s death, held to create estate in remainder in the children and to reserve a life estate in the grantor.
    3. Executors and administrators, § 124*—when executor accountable for rent due on lease of testator’s life estate. An executor of a life tenant in land leased under an agreement for the payment of rent In grain raised on the land, held accountable for the proportion of rent accrued but not payable at the time of the testator’s death, which occurred before the crop had matured and been harvested.
    Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded with directions.
    Opinion filed October 13, 1916.
    Statement by the Court. On October 16, 1902, E. W. Blaine, a widower, and the owner in fee simple of one hundred and eighty acres of farm land in Champaign county, Illinois, executed and acknowledged three warranty deeds. By one of said deeds he conveyed to Shields A. Blaine, a son, seventy acres; by another he conveyed to Scott Wilson Blaine, a son, eighty acres; the third deed conveyed to Walter C. Blaine, his son, thirty acres of said land. Each deed was a straight warranty deed and contained no reservations of a life estate in the grantor. On the same day, said E. W. Blaine executed his will wherein he devised the lands in the same manner as disposed of by the deeds. On September 29, 1906, the grantor delivered said deeds to one E. S. Clark, of Champaign, together with the following written directions as to the disposition thereof:
    “Champaign, Illinois, Sept. 29, 1906.
    “E. S. Clark:
    “Champaign, Illinois.
    “I herewith hand you three deeds from myself to grantees named therein; these deeds I executed for the purpose therein expressed. These deeds I now deliver to you in trust for the grantees in these deeds and I request you to hold these deeds for them until my death at which time deliver them to the grantees named.
    “E. W. Blaine.”
    The will was also placed in the possession of Clark by said E. W. Blaine at the same time he delivered the deeds to him. On March 19, 1908, the testator executed a codicil to the will wherein he ratified and confirmed the provisions of his will and made a certain provision for two of his daughters which in no waj/" affects the subject-matter of the present litigation. Clark retained possession of the deeds and will until he died, on October 17, 1913, when his widow took possession thereof. The grantor, E. W. Blaine, died September 15, 1914, and the deeds and will were retained in the possession of Mrs. Clark until September 22, 1914, when she delivered the deeds to the respective grantees and deposited the will with the County Clerk of Champaign county. On the date of the death of said E. W. Blaine, there was standing and growing on the land described in the deed to S. A. Blaine, being the same lands devised in the will to Shields A, Blaine, an unmatured corn crop, and also there was standing and growing on the land described in the deed to Scott W. Blaine, being the same lands devised to S. W. Blaine, an unmatured com crop. Said corn crops were not matured and gathered until the months of November and December, 1914. For the year beginning March 1, 1914, and expiring March 1, 1915, said grantor E. W. Blaine leased all the lands described in the three deeds to said Scott W. Blaine on a rental of one-half of the grain raised on the premises and certain cash rent. Prior to the time of the death of E. W. Blaine, the oats raised upon a portion of leased premises had been paid to the grantor. The cash rent, by the terms of the lease, became due and payable prior to the date of the grantor’s death, and this cash rent was, after his death, paid his executor and accounted for in the estate. No division of the unmatured corn crop had been made between the landlord (grantor in the deeds), E. W. Blaine, and the tenant (his son and grantee in one of the deeds), Scott W. Blaine. Shields A. Blaine was appointed executor of the last will of E. W. Blaine and on November 2, 1915, filed his final report as such in the County Court, in which report he made no account or report of any portion of the corn rental for the year 1914, for the lands conveyed in the deeds. On December 15, 1915, the appellee, W. C. Blaine, filed his objections, to said report in the County Court stating therein that the executor had failed to inventory and account to said estate for the proportional share of rent due at the time of the death of E. W. Blaine from the corn crop on said lands in which said E. W. Blaine, now deceased, then had a life estate and which had been leased as above mentioned. The County Court sustained the objections and ordered the executor to account for the proportionate share of rents from the corn crop which had accrued prior to September 15, 1914. The executor appealed from this order to the Circuit Court where the objections to the report were overruled and the objector, W. C. Blaine, has prosecuted an appeal to this court.
    There is no dispute in regard to the facts as they were all stipulated in a written agreement between the parties. It is stipulated that the deeds mentioned were executed by E. W. Blaine for the purpose of making a fair and equal disposition of his estate among his children, taking into consideration all advancements, gifts and assistance given to his children theretofore as well as their services and kindness to him, and that when the grantor delivered said deeds to Clark he parted from all control over them.
    It is contended by appellant that when the grantor delivered the deeds to Clark in escrow and parted with all control over the same, the delivery was complete, and title in fee immediately vested in the grantee therein subject to the life estate of the grantor, and that by virtue of section 35, ch. 80, Hurd’s Bev. St. 1913, in force July 1, 1897 (J. & A. if 7075) it was the duty of the executor to collect and account for the proportion of the corn rent which had accrued before the grantor’s death. This section of the statute is as follows: “When a tenant for life shall demise any lands and shall die on or after the day when any rent becomes due and payable, his executors or administrators may recover from the undertenant the whole rent due, but if any such tenant for life shall die before the day when any rent is to become due, his executors or administrators, may recover the proportion of rent which accrued before his death, and the remainder man shall recover for the residue.”
    It is the contention of appellee that these deeds did not have the effect of conveying any title or interest to the grantee until after the death of the grantor, but that the title in fee remained in the grantor as long as he lived, and therefore he was not a life tenant and the above statute has no application.

      Green & Palmer, for appellant.
    Dobbins & Dobbins and A. D. Mulliken, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

By the stipulation of facts it is conceded that the grantor parted with all control over said deeds when they were delivered in escrow.- Under the repeated decisions of the Supreme Court this constitutes a delivery of the deeds, and that question is not involved in this case.

At common law where a tenant for life gives a lease rendering a yearly rent, and dies in the course of the year before the date appointed for the payment of the rent, the rent cannot be apportioned. The tenant may quit the premises, if he chooses, on the death of the lessor, and pay no rent to any one for the occupation since the last day appointed for the payment of the rent. Wilson v. Hagey, 251 Ill. 452. In the ease of Hoagland v. Crum, 113 Ill. 365, it was held that section 15, chapter 10, of the Statute of George II, which gave the executor or administrator of the life tenant on whose death determined the right to recover of the tenant a ratable proportion of the rent from the last day of payment to the death of the lessor, had never been adopted in this State and that the rule at common law was then still in force. The Act of 1897 was passed for the purpose of abrogating the rule at common law, and applies to all cases where a life tenant demises premises and dies either before or after the rent becomes due, and includes rent payable in grain not yet harvested. Wilson v. Hagey, supra.

The determination of the question at issue in the case at bar depends upon what title, if any, passed from the grantor to the grantees in these deeds upon their delivery in escrow, and this largely depends upon the intention of the grantor when he executed and delivered the deeds.

In the case of Stone v. Duvall, 77 Ill. 475, Washington Duvall and Mary, his wife, each had a small amount of real estate when they were married and they executed a deed conveying the property owned by Duvall to his daughter by a former marriage, Mrs. Mary Stone. By another deed the wife’s real estate was conveyed to her son by a former marriage, Allen ’Agnew. These deeds were acknowledged before a justice of the peace who was directed by the grantors to have them recorded and to hold them until the death of the parties and then deliver them to the respective grantees. Subsequently Mary Stone died leaving her husband and several minor children surviving her'. The deeds had been recorded by the justice of peace as directed and held by him until after Mrs. Stone’s death, when Duvall took the deed which had been executed to her from the justice. Duvall and his wife then filed a bill in chancery making the children and husband of Mrs. Stone defendants, for the purpose of having the deed which he and his wife had executed to her set aside on the ground that it was not made in pursuance of their intentions and had never been delivered to the grantee. The court held that there had been a good delivery, and then discusses the effect of the delivery of a deed as an escrow and said: “But in such a case, the delivery only relates back to the first delivery so as to carry out the intention of the grantor, and to vest the title. It would not give the grantee a right to intervening rents and profits. So in this case, the deed is an escrow, that will not take effect until Duvall’s death, when it may be delivered to the heirs of the grantee, and it will be held to have taken effect so as to have vested such a title in the mother as to pass the fee to them. Until that time, Duvall will be entitled to the use of the property as though he had, a life estate, and the children of Mrs. Stone the remainder.” The deed in the Duvall case, supra, was a straight deed of conveyance without the reservation of any life estate, and it was held that Duvall would have the use of the property, “as though he had a life estate, and the children of Mrs. Stone the remainder.” In the case of Shackelton v. Sebree, 86 Ill. 616, the deed was a warranty deed containing the provision: “This deed not to take effect until after my decease—not to be recorded until after my decease. ’ ’ In discussing the rights acquired under this deed it was said: “Was this deed void, or did it operate to convey the fee at the death of the grantor? Had he conveyed a life estate to another, or had he conveyed to another to hold in trust for him during his life, then it would have been free from all doubt. Or had he in the same instrument reserved a life estate to himself, we apprehend that it will be conceded that the title would have passed to the grantee. Then* in substance, and, if not, in form, in what does this differ from the last two supposed casesf Had the life estate been conveyed to another for the use of the grantor, without creating an active trust, the life estate would, under the statute of uses, have vested in the grantor precisely as it did u/nder this deed. Witham v. Brooner, 63 Ill. 344. And had he expressly reserved in this deed a life estate, he would have held in the same manner. If, then, in either of these cases, the grantor could thus hold the title necessary to support a remainder, why not when, by operation of law and construction of the deed, he holds a life estate in legal effect the same?

“We are unable to perceive any reason in law or in fact. * * *; but be that as it may, here the remainderman was in being, named as grantee, and no reason is seen, since livery of seizin has been abolished, why the fee in remainder did not vest on the delivery of the deed, which has been adopted as a substitute for livery.” In the case of Harshbarger v. Carroll, 163 Ill. 636, the deed in controversy was a warranty deed and contained this clause, “only to take effect at the death of the grantor.” The court said: “By the act of delivery the title to the fee in the lands in controversy vested in Sylvia Harshbarger, reserving a life estate in the grantor.” In the case of Latimer v. Latimer, 174 Ill. 418, the case of Shackelton v. Sebree, supra, was quoted and approved upon this question. In the case of Bowler v. Bowler, 176 Ill. 541, one of the deeds in question contained the following clause: “This deed not to be of any force and effect until after the death of' said William P. Bowler.” The court said: “That this instrument was a present conveyance of a remainder after the death of William P. Bowler is too well settled by previous decisions of this court to need extended discussion.” In Hathaway v. Cook, 258 Ill. 92, the deed provided: “It being understood that this deed is to go into effect upon the death of the grantor, Ann Jane Cook.” From the opinion this danse is apparently treated by the parties and the court as a reservation of a life estate. In the case of Thurston v. Tubbs, 257 Ill. 465, the deed there under discussion contained the following clause: “This deed is to be delivered to the grantee after the death of the grantor.?’ This deed was executed and delivered to William Jones to hold as an escrow until the death of the grantor. The decision after reviewing a great many cases uses the following language: “Such a deed, in fact, takes effect, not at the death of the grantor, but immediately upon being delivered in escrow, if such act is attended with circumstances clearly evincing such intention on the part of the grantor. (Latimer v. Latimer, supra; Harshbarger v. Carroll, 163 Ill. 636.) We think it clear, under the evidence, that Viekerman Robinson intended these deeds to operate as a complete divestiture of his title at the time they were executed and delivered to J ones. If this be true, the title passed out of him upon the delivery of the deeds, and hence he had no interest in the premises in controversy at the time of his death, and the inclusion of such premises in his last will constitutes a cloud upon the title of appellees, which a court of equity has jurisdiction to remove.” In the case of Hill v. Kreiger, 250 Ill. 408, the deeds provided that possession was to be given at the death of the grantor, and the court held: “The grantor’s intention to presently vest title in the grantee in the case of a voluntary settlement is regarded as of more importance than the mere manual possession of the deed.” In the case of Vaughn v. Vaughn, 272 Ill. 11, the court held: “A deed made as a voluntary settlement may be effected to vest title in the grantee although it is retained by the grantor in his possession until his death, if other circumstances do not show an intention contrary to that expressed on the face of the deed. The grantor may deliver the deed either to the grantee or to a stranger for his use, and an acceptance by the grantee will be presumed from the fact that the deed is for his benefit, especially if the grantee is an infant. The test in all cases is the intent with which the act or acts relied upon as equivalent or a substitute for actual delivery were done, and in determining the question whether a deed of voluntary settlement has been delivered, the grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed.—Rivard v. Walker, 39 Ill. 413; Cline v. Jones, 111 id. 563; Miller v. Meers, 155 id. 284; Baker v. Hall, 214 id. 364; Henry v. Henry, 215 id. 205; White v. Willard, 232 id. 464.”

From an interpretation of these cases and the language used in the written directions delivered with the deeds, we think it clear that it must be held in the case at bar that it was the intention of the grantor to presently convey a title in fee to the respective grantees, the enjoyment of which to be postponed until his death, or, in other words, that the effect of the deeds was to reserve a life interest in the grantor with the remainder in fee to the grantees. There can be no question under the facts in this case but that some title or interest was conveyed to the grantees and that some title or interest remained in the grantor. There can be no question but that upon the death of the grantor, the grantees become seized in fee of the property. The only estate that the grantor could retain would be that of life tenant. Under the circumstances no other estate is known at law. It was held in the case of Stone v. Duvall, supra, that the grantor “will be entitled to the use of the property as though he had a life estate.” We can see.no distinction between this and a life estate itself. In any event considering the purpose and object of the Statute of 1897, the grantor having been entitled to the use of the property as though he had a life estate, brings this case within the provisions of the act, and the executor should account to the estate for the proportionate share of the corn rents accrued at the time of the death of the grantor.

The judgment of the Circuit Court is reversed and remanded with directions to sustain the objections to the report and order the executor to account for said rents.

Reversed and remcmded with directions.


author: Mr. Justice Eldeedge

text:
    In the Matter of the Estate of Sarah Baker, Deceased. Edward Allen et al., Appellees, v. James M. Baker, Administrator, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Appeal by James M. Baker, administrator of the «estate of Sarah Baker, deceased, from a judgment of the Circuit Court, affirming an order of the County Court, directing the appellant to recast and restate his final report as administrator and to charge himself with certain funds belonging to the estate.
    Prior to the making of the order appealed from, certain grandchildren and heirs of the deceased had filed a petition for citation against the administrator, asking that he be compelled by the court to inventory a large amount of personal assets of the estate in his possession and not accounted for. Upon a hearing upon this petition, the County Court entered an order directing the appellant to inventory and charge himself with $2,566.34 funds belonging to the estate. From this order the administrator prayed an appeal to the Circuit Court but never perfected it. Later, the administrator filed a supplementary inventory charging himself with the sum of $2,566.34, with the notation, “For which amount the said James M. Baker claims he is not justly indebted to the estate.” Later, at a subsequent term of the County Court, the administrator filed a final report and omitted therein to charge himself with the sum of $2,566.34, to which report the appellees objected, which objection was sustained and the order appealed from was entered.

      On the hearing of the appeal in the Circuit Court, the appellant filed a petition in which he requested that his final report he changed to a report current, that he be permitted to resign as administrator and that a new administrator be appointed so that he could have a trial by jury on the question whether he was indebted to the estate, which petition was denied.
    Wobthington, Beevb & Gbeen, for appellant.
    J. O. Pbiest and John M. Butleb, for appellees.
    Abstract of the Decision.
    1. Executors and administrators, § 516

      —vjhen parties are not entitled, to jury trial. The practice of compelling an executor or administrator by citation to inventory and account for assets in his possession belonging to the estate of which he is executor or administrator, by virtue of sections 81 and 82 of the Administration Act (J. & A. HH 130, 131), is a proper procedure, is equitable in its nature and the parties thereto are not entitled to a jury trial.
    2. Executors and administrators, § 517*—When appeal from, am, order of the County Court is properly denied. Where an administrator on a petition for citation was ordered to inventory and charge himself with certain funds belonging to the estate, from which order he perfected no appeal but later filed a supplementary inventory charging himself with such funds with the notation that he was not justly indebted to the estate therefor, and subsequently filed his final report, omitting to charge himself with such funds, held, on appeal by him from a judgment of the Circuit Court affirming an order of the County Court directing him to, recast and restate his final report and to charge himself with such funds, he having filed on the appeal to the Circuit Court a petition requesting that his final report be changed to a report current, that he be permitted to resign as administrator and that a new administrator be appointed so that he could have a trial by jury on the question whether he was indebted to the estate, that the order of the County Court, entered on the hearing of the petition for citation, being a final judgment rendered in a proceeding in which the court had jurisdiction of the person and subject-matter and no appeal having been taken therefrom, the Circuit Court had no power to grant the relief prayed.

      3ee Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Eldeedge

delivered the opinion of the court.


text:
    David A. DeVares, Appellee, v. Frank A. Corea, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action of forcible entry and detainer by David A. DeVares, plaintiff, against Frank A. Corea, defendant, for the possession of land sold by the plaintiff to the defendant. From a judgment for plaintiff, defendant appeals.
    On July 1,1910, plaintiff agreed to sell to defendant and the latter agreed to buy Lot 5, Block 6, in B. S. Edwards’ third addition to the City of Springfield, Illinois, for the sum of $2,100, payments to be made at the rate of $12 per month. Pursuant to said agreement, plaintiff caused his daughter to write in a book the following memorandum:
    “Articles of Agreements.
    “Entered into on the first day of July, 1910, between David A. DeVares of the County of Sangamon and State of Illinois, party of the first part, and Frank A. Corea of the City of Springfield, County of Sangamon and State of Illinois, party of the second part as follows:
    “The said David A. DeVares, party of the first part, for the consideration hereinafter mentioned, does for himself and for his heirs covenant and agrees with the said Frank A. Corea, party of the second part, and his heirs and assigns, by these presents, he, said party of the first part, shall and will agree to sell lot 5, block 6, in B. S. Edwards’. 3rd addition to the City of Springfield, Illinois, for the sum of twenty-one hundred ($21.00.00) dollars. 1910 payments to begin in July.”
    Defendant took possession of the property and on July 9, 1910, made the first payment, the receipt for which is as follows:
    “July 9th, 1910.
    “Deceived of Mr. Frank Corea Twelve Dollars to apply as 1st cash payment on the Brick Flats on Clay Street. “$12.00
    “D. A.' DeVares.”
    Up to the time of bringing suit, defendant had paid under this contract $809.40, and as the payments were made they were credited upon the book by plaintiff. On September 10, 1915, plaintiff caused to be served upon defendant the following written demand:
    “Springfield, Illinois, September 10, 1915.
    “To Frank A. Corea:
    “I hereby demand that you surrender to me possession of the following described real estate, situated in the City of Springfield, County of Sangamon, and State of Illinois, to wit:
    “Lot Five, Block Six, in B. S. Edwards’ third addition to the City of Springfield, Illinois, possession to which land was acquired by you under and by virtue of a contract executed by David A. DeVares and Frank A. Corea, and having failed and neglected to perform the conditions in said contract on your part, to be performed, your rights to the possession of real estate being thereby forfeited under said contract.
    “David A. DeVares.”

      E. A. Perry, for appellant.
    Andrews & Trutter, for appellee.
    Abstract of the Decision.
    1. Vendor and purchaser, § 68

      —when there is no obligation to pay interest on purchase price of land. An obligation to pay interest on deferred payments of the purchase price of land cannot be read into a written contract for the sale thereof which makes no mention of interest.
    2. Vendor and purchaser, § 28*—when contract not void under Statute of Frauds. A contract for the sale of land held not void under the Statute of Frauds where a memorandum of the sale stated the names of the parties, the consideration and described the land, although subscribed by neither party.
    3. Vendor and purchaser, § 28*—when memorandum, of sale of • land is sufficient. A contract for the sale of land, evidenced by a
    memorandum of the sale stating the names of the parties, the consideration and description of the land although subscribed by neither party, held not void under the Statute of Frauds although the memorandum was made by another than the vendor on his parol authorization.
    4. Vendor and purchaser, § 28*—when written contract for sale of land is sufficient. No form of language is necessary in order to determine what sort of writing is sufficient to meet with the requirements of the Statute of Frauds if only the intention can be gathered, and any kind of writing, including hasty notes or memoranda in books, papers, letters and telegrams suffice, if they contain on their face or by reference to others the names of the parties and a sufficiently explicit description of the property to render it capable of being identified, together with the terms and conditions of the contract.
    5. Vendor and purchaser, § 28*—when memorandum of contract for sale of land is sufficient. A memorandum of a contract for the sale of land not subscribed by the parties thereto, together with a written receipt of payment of an instalment of the purchase price, signed by the vendor, held to constitute a valid contract for the sale of the land.

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

   Mr. Justice Eldredge

delivered the opinion of the' court.


text:
    W. B. McBride, Appellee, v. Assumption Telephone Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.
    Statement of the ,Case.
    Action by W. B. McBride, plaintiff, against the Assumption Telephone Company, defendant, for damages for the death of the plaintiff’s horse alleged to have been caused by the negligence of the defendant. From a judgment for plaintiff for two hundred dollars, defendant appeals.
    The negligence alleged consisted in the defendant’s allowing a telephone wire attached to one of its poles, standing by the side of the highway, to sag over the plaintiff’s land in such a way that the plaintiff’s horse became entangled therein and was injured so that he died.
    Taylor" & Taylor, for appellant.
    J. E. Hogan and W. B. McBride, for appellee.
    Abstract of the Decision.
    1. Tbial, § 110

      —what a motion to exclude evidence on ground of variance must point out. A motion to exclude evidence and to instruct the jury to find the defendant not guilty on the ground that there is a variance between the allegation and proof must specifically point out in what the variance consists.
    2. Limitation oe actions, § 119*—when question whether statute has run is for fury. In an action for the death of a horse, the question whether the action had been brought before the statute of limitations had run, held for the jury.

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

   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    L. Corbly, Plaintiff in Error, v. F. M. Corbly and Lida M. Corbly, copartners, trading as F. M. Corbly & Company. Lida M. Corbly, Defendant in Error.
    1. Appeal and ebbob, § 843

      —who cannot sign Mil of exceptions. A judge who has resigned his office cannot allow and sign a bill of exceptions in a case tried before him before his resignation.
    2. Appeal and ebbob, § 845*—what succeeding judge cannot sign MU of exceptions. In Section 81 of the Practice Act (J. & A. IT 8618), providing that when the judge before whom a case is tried is unable to allow and sign a bill of exceptions then “the judge who succeeds such trial judge or any other judge of the court in which the case was tried, holding such court thereafter * * * shall * * * allow and sign such bill of exceptions * * *,” the expression “the judge who succeeds such trial judge” must be construed to mean the judge who succeeds^ the trial judge of the court where the judgment is entered, and cannot be construed to mean a judge succeeding by election, a judge of a county, other than that in which the case was tried, who tried the case at the request of the judge of the court in which the action was brought and judgment entered, unless the succeeding judge should be called to the county where the judgment was entered to hold court there.
    3. Appeal and ebbob, § 843*—who may sign MIV of exceptions. A judge is qualified to sign a bill of exceptions in a case tried in his court by a judge of another court who was called in and tried the case at his request.
    4. Judges, § 10*—when judge is not disqualified to proceed in a case. The calling in, by a judge of a court in which a case is pending, of a judge of another court to try it is not in effect a change of venue, and such action does not disqualify the resident judge from taking further action in the case after trial.
    5. Appeal and ebbob, § 842*—when failure of judge to sign MU of exceptions will not prejudice party presenting it. A party who has presented a bill of exceptions within the time fixed for so doing to a judge qualified to pass upon and sign it cannot be prejudiced by the failure of such judge to allow and sign it.
    6. Appeal and ebbob, § 846*—when order directing entry nunc pro tunc of Mil of exceptions sufficiently recites authority of judge. Where a case was tried by a judge of a court, other than that in which the action was pending, who was temporarily sitting in the court for the trial of the action at the request of the resident judge, and a bill of exceptions was presented to the resident judge, within the time allowed therefor, and he, not considering that he had authority to sign it, entered thereon a notation that it was presented and that when it should be settled it should be signed as of the date when presented, and it was signed at the term of court next succeeding the expiration of the time allowed for settlement by a judge of another court, other than the judge who had tried the case, sitting temporarily in the court at the request of the resident judge, and ordered by him to be entered nunc pro tunc, held that the recital in such order was sufficient to show the right of such judge to make the order.
    7. Appeal and error, § 842

      —when cleric’s signature to Mil of exceptions is sufficient. A bill of exceptions filed by the clerk of a court but signed as “County Clerk,” held valid, as the term “County Clerk” and “Clerk of the County Court” are by Rev. St. ch. 131, sec. 1, par. 8 (J. & A. If 11,102) interchangeable.
    8. Appeal and error, § 842*—when MU of exceptions signed by county cleric is valid. A bill of exceptions signed by the clerk of the County Court pursuant jto an order to the clerk of the court made by a judge temporarily sitting in the court, held valid though the clerk signed as “County Clerk,” since the order was by its direction to the clerk of the County Court clearly identified as a file of that court.
    9. Instructions, § 7*—when instructions must be accurate. Whetre the evidence in a case is sharply conflicting, it is highly important that the instructions be accurate.
    10. Partnership, § 40*—when instruction on existence of partnership is erroneous. An instruction to the effect that if two parties entered into an arrangement to advertise their goods together so as to save expense then no partnership existed between the parties, held erroneous as the “arrangement” may have been in fact a partnership arrangement, whereby each partner in terms agreed to be responsible for all debts of the firm.
    11. Partnership, § 40*—when instruction on existence of partnership is erroneous. In an action against an alleged partnership on promissory notes signed in the firm name, an instruction that if one of the defendants at the request of the plaintiff ceased to conduct her business under her own name and conducted it under the firm name, including the name of the other defendant, she would not be liable on the note if she kept the management of her business exclusively under her control, held erroneous.
    Error to the County Court of Ford county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 13, 1916.
    Rehearing denied December 2, 1916.

      Dobbins & Dobbins and Oscar H. Wylie, for plaintiff in error.
    Kerr & Lindley and Schneider & Schneider, for defendant in error.

      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.

A motion of defendant in error to strike the hill of exceptions from the files of this court was taken to be disposed of with the case.

The basis of the motion is that the bill of exceptions was not presented to or signed by any judge having authority to sign or receive the same within the time fixed by the court for so doing when the appeal was allowed.

The following facts appear from the motion of defendants in error now under consideration and the affidavits filed in support thereof: The judgment attacked by this writ of error was entered in the County Court then being in session. On that day plaintiff in error prayed and was allowed an appeal and the time for presenting a bill of exceptions was limited to ninety days from that date. The February term, 1914, of that court then adjourned and the June term of that court, 1914, soon convened, and on July 20, 1914, adjourned to court in course. The County Court of Ford county has but two commón-law terms of court each year, and they convene in February and June annually. The case was tried before Hon. Arthur W. Deselm, then county judge of Kankakee county. Hon. M. L. McQuiston was then county judge of Ford county, and Judge Deselm came to Ford county and tried this case at the request of Judge McQuiston. On August 8, 1914, Judge Deselm resigned his office of county judge of Kankakee county. On August 27, 1914, the same being within the ninety days fixed for presenting the bill of exceptions, plaintiff in error presented, the same to the Hon. Arthur Deselm, at that time judge of the Circuit Court, who as judge of the County Court tried this case, to Hon. M. L. McQuiston, county judge of Ford county, the court where the judgment was entered, and to Hon. William Gt Spur-gin, then county judge of Champaign county, who was called to Ford county by Judge McQuiston to sign the same. Judge Deselm no longer being a county judge and objections by defendants in error being made to the bill of exceptions being signed by Judge Mc-Quiston, because of previous interest in the case, because he did not preside at the trial and because the County Court of Ford county was not in session, and to its being signed by Judge Spurgin, because there was no term of the County Court of Ford county in session, and that he could not be called to preside over a court when no court was in session, none of these judges Would sign the same, but each of them noted on it the fact that it had been presented to them and the date it was presented, i. e., August 27,1914, and Judge Spurgin and Judge McQuiston made a further notation that when the same was settled it was to be signed as of that date, and each of them signed the memorandum so made. When the County Court of Ford county convened for the February term, 1915, the Hon. Roy C. Freeman, having been elected county judge of Champaign county to succeed Judge William G. Spur-gin, was called by the county judge of Ford county to preside over that court, at that term, and to settle the bill of exceptions in this case, while so presiding, and did on February 19, 1915, settle and sign the same and did further order that the same be filed mmc pro tunc as of August 27, 1914. The foregoing facts are' not controverted and conclusively show that plaintiff in error did all that, could be done under the circumstances to get the bill of exceptions into the hands of a judge competent to approve and sign the same, and that he procured the same to be signed by a judgie holding the County Court of Ford county at the first term after the ninety day limit fixed by the court for presenting the bill of exceptions had expired.

Plaintiff in error had all of August 27, 1914, in which to present this bill of exceptions for approval and signature. He cannot be held to be in default for taking all the time allowed him by the order of the court for that purpose. Judge Deselm, who tried the case, had by reason of having been elected judge of the Circuit Court and resigning the office of county judge, become in law unable to allow and sign the bill of exceptions. Section 81 of the Practice Act (J. & A. ¶ 8618) provides that when the judge before whom a case is tried is unable to allow and sign a bill of exceptions then “the judge who succeeds such trial judge or any other judge of the court in which the cause was tried, holding such court thereafter, * * * shall * * * allow and sign such bill of exceptions * * *” and that such act shall be as valid and binding as if performed by the judge before whom the case was tried. Judge Deselm was not the resident county judge of Ford county, but was the resident county judge of Kankakee county. The expression “the judge who succeeds such trial judge” used in section 81 of the Practice Act above quoted must be construed to mean the judge who succeeds the trial judge as judge of the court where the judgment is entered. It cannot be construed, as applied to the facts in this case, to mean the judge who was elected in Kankakee 'county to succeed Judge Deselm, unless such newly-elected judge should be called to Ford county to hold County Court there. When the ninety day time limit fixed for presenting the bill of exceptions expired, the June term of the County Court of Ford county had -adjourned- to court in course and there was no court in course from that time until the following February. Therefore no judge could succeed Judge Deselm as judge of the County Court of Ford county by holding court there until the February term of that court, 1915, because there was no court to hold until then. Judge McQuiston was the resident judge of the County Court of Ford county from before the time the case was tried until after the February term of that court, 1915, and was undoubtedly qualified, so far as the terms of the statute are concerned, to settle and sign the bill of exceptions in this case. It is objected, however, that this cause was removed from Judge McQuiston by change of venue and that therefore he could enter no further order in the case, except to effectuate the change of venue.

The affidavit of Frank Lindley, filed in support of the motion under consideration, states that the cause was removed from Judge McQuiston to Judge Spurgin, county judge of Champaign county, on change of venue, upon the order of Judge McQuiston “on his own motion.” We know of no law by which a judge of a court of record can order a change of venue from himself to some other judge on his own motion. It is apparent that for some reason Judge McQuiston did not want to hear the case when it first was presented to him on motion for a judgment by confession, and that he therefore called in a judge of the County Court of another county to hear it. That action was however in no sense a change of venue and in no way disqualified Judge McQuiston for taking further action in the case.

As already seen, the bill of exceptions was presented to Judge McQuiston within the ninety days fixed by Judge Deselm for that purpose and should have been passed upon by him, and if found to be proper should have been signed by him. As it was, he noted on it that it had been presented to him on August 27, 1914, to be signed as of that date when settled. *

Plaintiff in error having presented the bill of exceptions within the time fixed for so doing to a judge legally qualified to pass upon and sign the same, cannot be prejudiced by the neglect of the judge to whom, it was presented. People v. Rosenwald, 266 Ill. 548, and cases there cited. T. E. Hill Co. v. United States Fidelity & Guaranty Co., 250 Ill. 242.

The bill of exceptions was finally signed by Judge Freeman while presiding as the judge of the County Court of Ford county, and ordered filed nunc pro tunc as of August 27, 1914. The recitals in his order approving the bill of exceptions are sufficient to show his right to do what he did.

The bill of exceptions was filed by J. S. Thompson, “County Clerk” and it is urged that it should have been signed by him as “Clerk of the County Court” and that, as it was not so signed, it did not become part of the records of the County Court. There is no force in this contention. The two terms “County Clerk” and “Clerk of the County Court” are interchangeable. Chapter 131, sec. 1, par. 8, Eev. St. (J. & A. ¶ 11,102). Besides that the bill of exceptions was filed by Mr. Thompson pursuant to an order of a sitting judge of the County Court to the clerk of that court which clearly identifies it as a file of the County Court. People v. Munroe, 227 Ill. 604. The motion to strike the bill of exceptions is therefore denied.

The facts relating to the merits of this case are briefly stated: Plaintiff in error obtained two joint judgments by confession in the County Court of Ford county against F. M. Corbly and Lida M. Corbly as copartners, doing business under the firm name “F. M. Corbly & Co.” These judgments were later at the instance of Lida Corbly opened, and she was let in to plead to the merits. She filed a verified plea of the general issue, a verified plea denying joint liability, a plea of no consideration, a plea alleging collusion between F. M. Corbly and Lindsey Corbly in the giving of the notes and in the taking of the judgments by confession, and also charging that F. M. Corbly and Lindsey Corbly and not Lida M, Corbly were partners, under the firm name of F. M. Corbly & Co., and that no consideration passed for the notes, and a plea charging conspiracy to prevent Lida M. Corbly contesting a pending divorce suit brought by her husband, Fred M. Corbly. Issue was joined on the pleas and it“ was agreed that the two cases should be tried together, but that separate judgments be entered on the verdict. The case has been twice tried. The first trial resulted in a disagreement of the jury and the second resulted in a verdict for Lida M. Corbly, and judgment was entered against Lindsey Corbly in bar of his action, and for costs. Lindsey Corbly is the father of Fred M. Corbly, and Lida Corbly is the wife of Fred M. Corbly.

The real issue between these parties was, as to whether Lida M. Corbly was a member of the firm of F. M. Corbly & Co. at the timé the notes in question were given. The evidence is voluminous, there being ■approximately 1,600 pages in the bill of exceptions. It is conflicting on substantially every material point. Under this state of facts it was highly important that the instructions should be accurate. There was clearly no error in the admission of evidence. The instructions given at the instance of plaintiff in error are comprehensive and are fully as favorable to him as the law would warrant, and no substantial error has been pointed out in refusing any instructions offered by him.

The instructions given at the instance of defendant in error are not prepared with the care they should have been. At least two of them contain fatal errors.

The eighth in the series given for her is as follows:

“The Court further instructs the jury that if you believe from a preponderance of the evidence that Fred Corbly was in the shoe business and Lida Corbly was in the millinery business, in the same store room in the City of Paxton, and at the suggestion, request or advice of plaintiff, Lindsey Corbly, then entered into arrangements whereby they have advertised their goods jointly under the name of F. M. Corbly & Co., for convenience or the saving of expense of advertising, then the court instructs you that so far as the plaintiff, Lindsey Corbly, is concerned, there was no partnership existing between the said Lida Corbly and Fred Corbly, and whatever amount of money Fred Corbly may have borrowed from the plaintiff under the name of F. M. Corbly & Co., the defendant Lida Corbly would be in no wise bound to pay the same or any part thereof to the plaintiff, Lindsey Corbly.”

This instruction ignores the fact that what is therein termed “arrangements whereby they have advertised their goods jointly under the name of F. M. Corbly & Co. for convenience or the saving of expense of advertising” might have been a hard and fast partnership contract whereby each partner should in terms agree to be responsible for all the debts of the firm.

The ninth instruction given in the same series reads:

“You are instructed that even though you may believe from the evidence that Lida Corbly was conducting a millinery business and Fred Corbly was conducting a shoe business in the Corbly building in Paxton, Illinois, prior to the making of the notes in issue in this case, and if you further believe from the preponderance of the evidence that the plaintiff, prior to the 12th day of October, A. D. 1903, suggested, advised or requested the defendant that she, the defendant, change her business name and conduct her business under the name of F. M. Corbly & Co. in connection with the said Fred Corbly, and if you further believe from the preponderance of the evidence that in compliance with said request she did so change her business name and conducted her business under the name of F. M. Corbly & Co., but still kept the management of her millinery exclusively under her own control, and the plaintiff knew the fact, then you will find the issues for the defendant.”

This instruction directs a verdict and is bad for much the same reason as the eighth. Under this instrnction defendant in error would not be liable for partnership debts, even if she was in truth a member of the partnership, if, while doing business in the firm name, she by her partnership agreement kept the management of the millinery business exclusively under her control.

These instructions could not help but be harmful, and while we greatly regret the necessity for so doing, we see no alternative under the recognized rules of law but to reverse the judgment and remand the cause for the errors pointed out.

Reversed and remanded.


text:
    Clinton E. Graves and Charles F. Hurburgh, copartners, trading as Graves & Hurburgh, for use, etc., Plaintiffs in Error, v. Toledo, Peoria & Western Railway Company, Defendant in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of McLean county; the Hon. Colostxn D. Myers, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 13, 1916.
    Statement of the Case.
    Action by Clinton E. Graves and Charles E. Hurburgh, copartners, trading under the firm name and style of Graves & Hurburgh, for use, etc., plaintiffs, against the Toledo, Peoria & Western Bailway Company, a corporation, defendant, to recover for the destruction of a grain elevator and its contents owned by the plaintiffs, alleged to have been caused by the negligence of the defendant. To review a judgment for defendant, plaintiffs prosecute a writ of error.
    The elevator stood on the defendant’s right of way under a lease of the ground by the railroad company to the plaintiffs’ vendor, which lease stipulated that the railroad company would not be liable to the owners of the building for damage on account of injuries to the elevator or its contents caused by the lessor or any of its employees, or by fire originating from its locomotives. The plaintiffs took possession apparently with the consent of the defendant, but no new lease was entered into by them. The loss having been paid to the plaintiffs by an insurance company, the plaintiffs brought this suit for the use of the company.
    Oglevee & Franklin and Barger & Hicks, for plaintiffs in error; C. O. Carlson, of counsel.
    Stevens, Miller & Elliott, for defendant in error; Fifer & Bohrer, of counsel.
    Abstract of the Decision.
    1. Landlord and tenant, § 415

      —when lessees successor is presumed to know terms of léase. Purchasers of a grain elevator standing on a railroad company’s right of way, the railroad company not being the owner of the building but the lessor, to the owner, of the land on which it stood, held presumed to know not only that the building was on the right of way under some arrangement between the owner and the railroad company, but also what that arrangement was.
    2. Railroads, § 166*—what use of its right of way a railroad company is not obliged to permit. A railroad company is under no obligation to permit an elevator to be placed upon its right of way, and if it does so it has the right to exact such terms and conditions as it deems fit to impose as a basis of permitting it to be placed there.
    3. Landlord and tenant, § 415*—when lessee’s successor is bound by the original lease. In an action by the owners of a grain elevator standing on the right of way of the railroad company against the railroad company for loss of the building and its contents by fire alleged to have been caused by sparks emitted by defemiant’s locomotive, held that, although there was no lease for the ground entered into between the parties, the plaintiffs were bound by the terms of a lease of the ground by the defendant to the plaintiffs’ vendor of the building, which provided that the defendant should not be liable for any damage caused by fire resulting from the operation of its railroad whether or not the plaintiffs knew of such lease.

      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.